Alice Corporation Pty. Ltd. v. CLS Bank International

By Dennis Crouch

Today, the Supreme Court will hear oral arguments in the patent subject matter eligibility case of Alice Corporation Pty. Ltd. v. CLS Bank International. Alice Corp.’s patent covers a computerized escrow system and method that CLS Bank allegedly uses in the process of settling trillions of dollars in transactions each week.

Question presented

Whether claims to computer-implemented inventions-including claims to systems and machines, processes, and items of manufacture-are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court?

As petitioner, the patentee (Alice Corp) will argue first. Respondent’s time will be split between CLS Bank and the US Government who has filed an amicus brief highlighting a misguided argument that “the abstract idea exception is patent law’s sole mechanism for excluding claims directed to manipulation of non-technological concepts and relationships.”

A transcript should be available in the afternoon.

See: Dennis Crouch, Software Patent Eligibility: Alice Corp v. CLS Bank on the Briefs (March 13, 2014).

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The Supreme Court is working through a number of patent related decisions this term:

  • Alice Corporation Pty. Ltd. v. CLS Bank International (subject matter eligibility of computer implemented inventions and software). Oral arguments March 31, 2014 with decision expected June 2014.
  • Teva v. Sandoz (whether a district court’s finding of fact in support of claim construction should be reviewed de novo as required by the Federal Circuit). Petition granted March 31, 2014.
  • Lexmark Int’l v. Static Control (allegations of patent infringement against non-competitor can create Lanham Act claim). Decided March 25, 2014.
  • Octane Fitness v. Icon Health & Fitness (proper standard for determining an “exceptional case” in the attorney fee shifting context of 35 U.S.C. §285). Oral arguments held February 26, 2014 with decision expected by June 2014.
  • Highmark v. Allcare Health Mgmt. (standard of appellate review for fee shifting decisions). Oral arguments held February 26, 2014 with decision expected by June 2014.
  • Nautilus v. Biosig (standard for determining when a patent claim is invalid as indefinite). Oral arguments scheduled for April 28, 2014 with decision expected in June 2014.
  • Limelight v. Akamai (determining whether inducement should be severely narrowed by the no-joint-infringement doctrine). Oral arguments scheduled for April 30, 2014 with decision expected in June 2014.
  • Medtronic v. Mirowski (holding that patentee has the burden of proving infringement even in declaratory judgment actions by a licensee in good standing). Decided January 22, 2014.
  • Petrella v. MGM (considering the laches doctrine in the copyright context). Argued January 21, 2014, awaiting decision.
  • ABC, Inc., v. Aereo, Inc (when does an internet transmission count as a “public performance” under the copyright laws?). Argument scheduled for April 22, 2014.
  • POM Wonderful v. Coca-Cola (who has standing to challenge a food or beverage label as misleading or false under the Lanham Act). Argument scheduled for April 21, 2014.

198 thoughts on “Alice Corporation Pty. Ltd. v. CLS Bank International

  1. After Round Three (Verrilli), Alice wins.

    Verrilli was worse than useless. His repeated emphasis on ‘technology’ simply misses what the current law actually is, and thus was completely lacking in any sense of compelling any effort to change the current law to his preferred viewpoint.

    At best, a couple of the judges explored a possible ‘way out’ without making a decision on software at all. Given the slap across the face of the Supreme’s in the Alice en banc non-decision, ANY non-answer from the Court, ANY sense of ducking (again) its responsibility in the mess of 101 jurisprudence, ANY sense of the Court vomiting out a “‘It’s abstract’, just apply it” type of escape ruling will not only not sit well across the patent world landscape, it will seriously impugn the ‘respectability’ [sic] of the Court.

    1. anon, I don’t see how Alice wins given Bilski and Mayo.

      But your comment on ducking responsibility hits the mark.

      1. Bilski claimed a process.
      2. The process resulted in a useful end. Per Benson, it was therefor not abstract.
      3. Nevertheless it was held ineligible based on Benson?

      The rule given was that Bilski claimed a fundamental economic principle and preempted that. Are fundamental economic principles ineligible? If so, why? And just how did it preempt the principle? The process was detailed and specific to a particular application.

      The only explanation that could make sense was that fundamental economic principles are simply ineligible, but the technology to implement them might be eligible. But that still begs the question, why are fundamental economic principles ineligible? Labelling them abstract despite all the detailed, concrete steps defined in the claims is and was nonsensical.

      1. Ned,

        My analysis was in response to 6 and his question regarding the oral arguments.

        I have reviewed the oral arguments, the proponents and the Justices, and rendered my educated guess as to the effects of the oral arguments.

        As to your (yet another) attempt – “the only explanation that could make sense” – to re-write the decision and re-define what the Court actually said. Sorry, but you have hit your limit on merry-go-round rides for the day. Clearly, when your proffered explanations cannot comport with law, it is time for your to stop, think and come up with a different explanation. You keep on thinking that you will get a different result when you apply the same broken thinking time and again (the adage about insanity comes to mind).

      2. Ned vaguely quips “anon, I don’t see how Alice wins given Bilski and Mayo.

        Again, Ned, your untethered reference to Bilski and Prometheus leave me guessing as to why you are thinking as you do.

        Looking at your other comments, I then can only summarize that you have (again) incorrectly assumed those briefs and oral arguments that align with your agenda are to be taken as gospel truth and law. That you are (again) assuming the conclusions as proof is simply not compelling. Your continued ‘re-writing’ of the holding of Bilski to fit your agenda is simply not compelling. Your continued over-reading of Benson and Flook (without explaining the quotes in each decision that I have placed before you) is simply not compelling. Your ad nausem repetition of your incomplete legal logic does not make that logic complete – it only highlights the fact that your logic is incomplete and that you continue to refuse to address those aspects that you have no answers for.

        As far as “ducking responsibility hits the mark” I do hope that the Court also realizes that. After reading the oral argument transcript again, one can see that certain members of the Court are frantically hoping for a way out of the mess they created without actually taking a firm position.

        The first step in any resolution that will have any firmness and clarity going forward will be – must be – the Court taking responsibility for the mess it has created in the 101 jurisprudence.

        Like any recovery from any addiction, one must first realize that there is an addiction.

        The full scope of what happened in 1952 must be recognized. Section 103 was not created in a vacuum. 103 carved something out of what were the words of 101 in the pre-1952 words of Congress.

        I know that you believe that the tool of common law evolution provides the best jurisprudence and the best law. In fact, I would posit that your belief in this is an addiction for you.

        The problem is that you do not realize your addiction to this belief. You do not realize that you have to give up this belief when it comes to patent law and specifically the patent law of 101.

        Congress really did remove the tool of shaping the 101 definition of ‘invention’ by common law evolution that it had explicitly given to the courts in the early patent acts. You – and the Court – need to realize this inevitable fact. Overcoming the addiction will not happen until that addiction is recognized and admitted – no matter how humbling that admission might be.

        Historically, it takes great courage for the Court to admit its past errors. And often, this courage is lacking. Too often, jurisprudence is greatly muddled when the Court seeks to ‘tweek’ what should be flatly rejected. This ‘tweeking’ – instead of creating clarity – merely creates countervailing ammunition that is later used by diametrically opposed philosophical camps in later Supreme Court decisions. Any student of law easily sees this wrangling by the Court on philosophical grounds as duplicitious and denigrating to the respect that the Court should have. Even the Court’s own members engage in sniping, using such terms against each other as “Lochnerian” and “judicial activism stepping beyond the bounds.”

        It is far “easier” to engage in judicial appeasement. The 9-0 Prometheus decision can be seen as such an example. Clearly, the Court was fractured in the Bilski decision. Clearly, Breyer was enraged with the treatment by the lower court of his reasoning in the removal from the Court (for improvident grant of certia) of a certain case – the “that has no effect of law” quotes. Look at how the Prometheus case mirrors that earlier case. Clearly, the Court as a whole, threw a bone to Breyer in what can only be called a Neville Chamberlain move. Patent peace for our time.

        But exactly like the Chamberlain move, the decision has turned into a fiasco. Anyone who understand patent law immediately can see that the decision cannot square itself with the jurisprudence that itself says is most on point.

        We need a Churchill – not another Chamberlain.

        We need the Court to stand up and recognize its addictive fingers in the 101 nose of wax.

        We need the Court to recognize its Constitutional limits. Congress, not the Court has been sanctioned to write patent law. Congress, not the Court must be the one to place limits on ‘any.’

        And you need to stop your addiction to re-writing Court decisions, expanding and changing definitions of ‘abstract’ and ‘Useful Arts’ to be plainly something that they are not.

        How deep the rabbit hole of “implicit?”

        1. Anon, while I agree with you a couple points. I think the court should link the exceptions into the statute in some way rather than the simply divorcing their cases from statutory framework. I think they did that with respect to mathematical algorithms, equating them to laws of nature and both to something that is not new even though not known. Thus mathematical algorithms and laws of nature and phenomena of nature are neatly linked into the statute. Recall I quote you to language from Myriad where Justice Thomas actually linked the holding to the word “new” in section 101.

          Thus mathematical algorithms, products of nature, laws of nature and other phenomena of nature all neatly linked into section 101′s “newness” requirement. But I do not believe that one can say the same about business methods and have said so. The only possible link to section 101 but I can see is that a business method is not within the useful arts. I don’t believe it is a problem of abstractness and have said so before and will say it it here again. The claims in both Bilski and in this case are simply not abstract within the meaning of that term given that by Supreme Court in O’Reilly v. Morse.

          That said, Sotomayor did give us your opinion that the claims in this case were functional. As such, they are like the claims in Morse in the statutory problem is not really 101, but 112. But as we have debated this issue with our new friend RandomGuy, I do not believe that claims to programmed computers are the variations are functional, but a simple reason that anyone with any skill in the art can’t write a program to implement the claimed algorithms.

          As to reversing a very badly decided case, I would hope that the majority that decided Bilski would recognize its error and join with Breyer and Ginsburg and Sotomayor and hopefully Kagan to decide the issue based upon the only statutory basis available, that a claim to a business method is not within the useful arts as defined by section 101.

          1. Ned,

            Your logic falls apart on many places, starting with the fact that the universe is not constant.

            The map is not the land.

            Your continued attempts to bastardize the Useful Arts has no place in this reality.

            Your “wishing to reverse a badly decided case” by invoking a constitutional crises in the separation of powers doctrine by having the Judiciary do what was allocated to the Legislature is downright appalling. Your addiction is out of control.

          2. This notion of yours tying the Constitutional phrase Useful Arts to the words of 101 is a FAIL, Ned.

            The phrase in 101 is not “useful process” as a derivative of “useful art.”

            The phrase in 101 is “new and useful,” and applies to each category. This can be seen by the parallel construction of “new and useful improvement thereof.” This phrase is understood to represent the utility aspect of 101 (as opposed to the category aspect). As such, you continue to conflate that which I warned you not to conflate.

            No one talks of the Useful Machines as a Constitutional notion.
            No one talks of the Useful Manufactures as a Constitutional notion.
            No one talks of the Useful Compositions of Matter as a Constitutional notion.

            Further, your attempted (over) reading yields a circular error. Your attempted (over)reading yields that the Useful Arts is combined total of the Useful Arts and the Useful Machines and the Useful Manufactures and the Useful Compositions of Matter, with the logical error of the second referenced Useful Arts a non-unitary smaller subset of the first referenced Useful Arts.

            1. anon, your concept of intellectual conversation would find approval in certain institutions that warehouse the insane.

              There is little doubt in reading the statutes of 1790 and 1793, that Congress was attempting to enact what it viewed as the useful Arts.

              That some commentators say that useful Arts is different or broader or whatever is shear speculation. What Congress in fact did it the best evidence.

              The words of the stature have except that “process” has substituted for “Art,” remained the same since. Under the doctrine of statutory construction, the meaning of the statute is construed in the contest of the time of its enactment.

              That you disagree with this is noted. But you simply disagree. I have the benefit of the law.

            2. Ned, as would yours.

              Again, after the trade of comments, will you finally start answering some of the points I provide to you?

              I will note that our past discussions on statutory constructions have not yielded any points in your favor.

              It has not just been ‘commentators Ned – the judicial and legislative branches also have indicated that the Useful Arts are broader than the technical arts.

              You have ZERO benefit of the law, because ALL that you have done is hsown your own odd bendings of that law. You have provided ZERO citations outside of your own fantastical recreation and imaginings.

            3. anon, all I can say is that if congress were to expressly authorize patents on business methods, there would be case, trust me, that would raise the question of congress’s power to do so.

            4. …for some reason that I think we both know ;-) you seem incapable of recognizing why Stevens lost his majority-slated position in the Bilski case.

              Clearly, what Stevens wanted to do is exactly what you want to do. You should read the Alice oral transcripts and pay attention to the “otherwise do what failed to have been done in Bilski” line of thought.

              4 is not 5.

              Still.

      3. Ned,

        Your ‘logic’ in ”
        1. Bilski claimed a process.
        2. The process resulted in a useful end. Per Benson, it was therefor not abstract.
        3. Nevertheless it was held ineligible based on Benson?

        is horrendous.

        Specifically, your point 2 is completely wack. The ‘abstract’ in Benson was not tethered to “a useful end.” If it were, perhaps the Court would have got that decision right.

        Instead, Douglas butchered the law (as was his want) and introduced the notion of pre-emption. Silly Douglas, all claims pre-empt. That is what they do.

        What the Court did was stick its finger deep into the 101 nose of wax. Look at the horrendous dicta of that decision and try to hold a straight face and say that a philosophical position was not running amuck. Seriously. It is no wonder that the Benson decision is considered one of the worst patent decisions of all time.

        Instead of correcting this mistake, we have the Chamberlain effect of Flook. We have the ignoring of what Diehr was meant to do. We have people actually quoting Benson and Flook without giving credit to what Diehr limited those decisions to. Can you believe that people today would twist the law so badly?

    2. “After Round Three (Verrilli), Alice wins.”

      Yeah I’m not really sure where you got that from. The judges ripped alice to shreds while leaving the other two more or less to just stand and speak.

      But is this your official prediction?

    3. Verrilli was worse than useless. His repeated emphasis on ‘technology’ simply misses what the current law actually is, and thus was completely lacking in any sense of compelling any effort to change the current law to his preferred viewpoint.

      Agreed, anon. Have you read the SG brief? It’s an extended roundabout plea to set up a way to eliminate the worst §103 violations before getting to discovery and Markman. Any pretense of actually reading or interpreting or applying §101 is abandoned.

      The SG even endorses the worst and most abstract software patents — “linear programming, data compression, and the manipulation of digital signals” — based on a minority Supreme Court opinion parading itself as a concurrence. Even the things §101 is most essential for protecting from monopolization are specifically included by the SG.

      Erasing §101 to double up on §103 is Virrelli’s whole point. Well, that and the usual nonsense that §101 is about whether something seems ‘hard’ or not to judges, regardless of what engineers think.

      1. A naked plea to the Court to engage in explicit law writing rejected in Bilski should have been vehemently denounced by the Court.

        I am reminded once again of Chief Judge Rader’s admonition: “When all else fails . . . consult the statute… vindicated the proposition that “all else had failed.”

        Wake Up Supreme Court – your implicit and contradictory 101 jurisprudence has wreaked enough havoc. Take some responsibility here. Since you cannot write law, at the least, undo your damage.

  2. After Round Two (Perry), I have the Court even more strongly favoring Alice – at least in the war versus battle aspect.

    Perry was much more smooth than Philips, but as mentioned, sacrificed the war to win a less extensive “claim” battle. Since the pressure is on the Court to do more than simply say ” ‘abstract” and apply it,” the sacrifices will work against Perry’s larger cause.

    I read NO justices firmly in the anti-software camp from the Perry exchange. Even while Perry obviously pandered to both Breyer and Ginsburg, I did not see any signs that Perry carried an anti-software argument successfully with these two.

    Instead, as with the first set, Kagan is on the fence and now is joined on that fence by Breyer and Ginsburg.

    The pro-software patent side remains a strong six of Sotomayor, Kennedy, Scalia, Alito, Roberts and Thomas. Kennedy’s repeated requests for examples of business method patents pierced the silver tongue of Perry. Perry’s critical directive to Scalia about the scope of the Useful Arts will only blow up in Perry’s face. And Roberts was clearly not impressed with the notion that just because a solution may technically be carried out by people, if that carrying out takes 20 people 100 years, there is something amiss with trying to rule out patent eligibility.

    1. anon, I don’t know what “issue” you are talking about, but “software” per se is not at issue in this case. Furthermore, I don’t think even you are seriously contending that the court will overturn both Bilski and Mayo.

      So, I really do not understand where you think the Supreme Court is going to come out in this case.

      1. There are none so blind as those that refuse to see.

        Given how you still refuse to see the Nazomi case Ned, I am not surprised by your unwillingness to understand my posts.

        LOL – maybe you can prepare a brief and post it outlining what you see as the “issue” in this case.

        Beyond that, your comment about somehow thinking that I am advocating overturning both Bilski and Prometheus seems rather untethered.

    2. “sacrificed the war”

      Perhaps you can tell us all how Perry is able to sacrifice the “war” on behalf of everyone else?

      “I read NO justices firmly in the anti-software camp from the Perry exchange. ”

      Of course, they all still want industrial software like in Diehr.

          1. Those “tards” 6 include the Supreme Court for whom the record includes what Perry offered.

            That’s rather important. Do you understand why?

            1. “Those “tards” 6 include the Supreme Court for whom the record includes what Perry offered.”

              Inability to understand the thoughts or feelings of others.

    3. I don’t know how you come to the conclusion that Sotomayor is pro-software. Ginsberg had to stop her from saying that Alice is proving that business methods should be tossed completely.

      1. Random Examiner,

        I think that you misunderstand what Sotomayor was driving at. She was driving at confirming whether the advocate was committed to a view that was not in accord with the majority decision in Bilski. It was not her view that she was confirming, her own belief, but rather that it was the advocate’s belief that all business methods should be tossed completely.

        You have assumed that she has maintained her position as a newbie on the bench, a newbie whose mentor was Stevens, a newbie, whose mentor Stevens had been slated to write the majority position for the Bilski case, but whose mentor Stevens lost that majority position because that mentor would have crossed the constitutional separation of powers line to explicitly re-write patent law in order to toss completely all business methods.

        Think, my examiner friend think – you are resting on your assumptions. Assumptions that rest on very shaky grounds. Sotomayor is not locked in stone to her first Supreme Court decision. Sotomayor very much depends on the advocates in front of her. And while Philips had a shaky start, he did swing Sotomayor. If anything, the direct (and in error) Verrilli ‘advocacy’ locked Sotomayor in against a Court explicit re-writing of the words of Congress and an achieving of what was attempted (and failed) in Bilski by an even more circumlocutionary route.

        The point is not whether Sotomayor is pro-software. The point is that Sotomayor has matured and stands on her own judicial legs without leaning on the Stevens viewpoint.

        1. anon, Sotomayor thinks that Alice is trying to patent a function. Now that is a better way of expressing the problem with these claims then calling them “abstract.”

  3. While I personally question the propriety for using 101 to get rid of these junk patents (I think 103, 112, 1st and 112, 2nd are more appropriate, but of course I don’t have to foot the bill on that) I think it’s pretty obvious that if Kennedy’s line of thinking stands it’s curtains for the pro-patentability crowd.

    Kennedy: “Well, let me put it this way. If you describe that to a second ­year college class in engineering and said here’s my idea, now you go home and you program over this weekend, ­­ my guess is that that would be fairly easy to program.”

    Kennedy views the claim in two parts: the idea (a trusted broker) and the implementation (the programming). The latter is not expressed in the claims (as it’s claimed by the admittedly easily achievable functional result) and the former is abstract. Under that line of thinking there’s nothing patentable in a lot of software programming.

    This is the danger that I’ve seen so many on this board dance around. It’s very hard to argue that you have a new idea that is very easy to implement and is entitled to monopolistic protection. You’ll notice how Alice’s lawyer kept discussing the complexity of the program, as if complexity means it’s not abstract.

    If I had to guess, I would say the court will hold that a general purpose computer that is modified only by being able to perform a calculation, barring specific evidence to the contrary, is abstract. i.e. adding a processor to a well-known method will be insufficient under 101. The court tends to follow the suggestion of the US.

    1. Someone will likely remind Kennedy that his question is a question already answered under 35 USC 103 (“Patentability shall not be negated by the manner in which the invention was made.“).

      1. It has nothing to do with how it was made. The claim contains no limitation regarding implementation, it embraces all implementations, and Kennedy sees the only other contribution as an idea. It’s a question of ends, not means.

    2. RandomGuy, If I had to guess, I would say the court will hold that a general purpose computer that is modified only by being able to perform a calculation, barring specific evidence to the contrary, is abstract. i.e. adding a processor to a well-known method will be insufficient under 101.

      Random, You should have said that an otherwise ineligible process cannot be made eligible by simply adding in a computer. I don’t think you said that in the above quote.

      The problem is and has remained exactly how one determines that a particular process is otherwise ineligible. The Kennedy opinion in Bilski gave us no information. The extent they gave us information it was inconsistent with the holdings in Benson and Flook. In those two cases mathematics was deemed equivalent to laws of nature and therefore old, not new as required by section 101. See Flook at footnote 15. But why business methods are ineligible is not clear at all from simply reading Benson and Flook. They are ineligible because they are not within the useful arts. But wasn’t that issue decided in Bilski?

      We are left with a conundrum and a puzzle by Bilski. What was the basis for holding the business method and that case ineligible. I think that is why the court asked the solicitor general at the end to provide a definition for abstract idea. He did. I think that was the best part of the whole oral argument and will provide the Supreme Court a context for discussion.

      1. inconsistent with the holdings in Benson and Flook

        LOL – how about Diehr‘s limitations on Benson and Flook? (See Bilski).

        How about treating both Benson and Flook honestly and incorporate the quotes from those cases that I have presented to you?

        How about you stop trying to redefine Useful Arts to only fit your agenda? How about you treat with respect what was actually said in Bilski instead of your constant attempts to re-write that decision and make the Stevens 4 into a majority position?

        Shameful how you are carrying on, Ned. Absolutely shameful.

  4. After Round One (Philips), with a brutal start (but with a deft turning of Sotomayor), I have the count favoring Alice

    Against (the remnants of the ‘we don’t care that we were over-ruled, and would invoke a Constitutional crises by outlawing business methods per se’:
    Breyer and Ginsburg

    Too close to call (but leaning towards above if she could get away with dissecting the claim and splitting the baby:
    Kagan

    For (with the gentle reminder that what is being attempted is another stab at Bilski and elimination of business methods):
    Kennedy, Scalia, Alito, Roberts, Thomas and the surprise (well, not to me for reasons previously posted) Sotomayor.

    Granted, this is only after round one and the overall leanings may change.

    1. Well, except for Sotomayor, I mostly agree. Our wise latina will stick with the other wise moderates on this one.

      And Kennedy, Alito, Roberts, and Thomas aren’t going to rule in favor of Alice. They’re going to rule in a 9-0 decision that Alice is invalid for being abstract but refuse to articulate a broad and clear rule to keep future abstractions from being patented. Think of them as the Lourie wing of the Supreme Court — radical patent maximalists but not utterly corrupt. Alice is just too offensive to the nose of reasonable people for the patent to survive any kind of review.

      But you’re right that the right-wing patent maximalist radicals will refuse to being the CAFC to heel. It’s just that even they can’t abide the odure of calling Alice eligible. Honest people will just have to hope that Kennedy or someone decides to spend more time with his family before Obama retires from office.

      1. Owen,

        Your sense of ‘moderates’ is bizarre. As is your continued “maximalist” mantra. Stop drinking the kool-aid my friend. Your taint about what is ‘reasonable’ and ‘honest’ show that you are being neither.

        Further, Kennedy is more likely to vote with those that would invoke a constitutional crises than Sotomayor. Sotomayor is very much a judge that wants counsel to make their case – and while Philips stumbled and bumbled through the rapid fire questioning, he turned her, and Perry, -without the interfering questions – came across more like silk, the content of what he said, and importantly what he sacrificed (hint: claims purely on data transformation and no physical effect are patent eligible – yet quizzically pass the ‘abstract’ filter) will mean that the Court will not brightline rule out software.

        Since Perry abandoned all but a small subset in his aim for winning the battle, the battle may be won and the war lost.

        1. “Philips stumbled and bumbled through the rapid fire questioning, he turned her, and Perry, -without the interfering questions – came across more like silk, the content of what he said, and importantly what he sacrificed”

          They were both highly compensated bumblers and both irrelevant. The SG was even worse. All eight wakeful justices agree with Clarence Thomas about oral argument: they consider it a circus and a waste of time when the important work of the court needs to be thoughtful and should be handled in carefully prepared and detailed written arguments. The difference is that eight of them consider it free entertainment for judges while to Thomas it’s a snoozefest.

            1. It is more than that.

              Let me share a personal note with you: I have discussed this with her Honor Sotomayor (prior to this case being before the bench), and that is why I share my educated opinion that she has left the Bilski 4 based on the content of the oral argument transcripts.

            2. I also think the Justice may simply be following precedent as she should.

              Would that be the “4 is not 5″ precedent? You know the one, the one that you are advocating that this Court break?

  5. JUSTICE SOTOMAYOR:  Is your software copyrighted?
    MR. PHILLIPS:  No, I don’t believe so.

    Words fail me.

    It also seems to me that Alice would have done well to have oral argument counsel that actually understood the invention in a meaningful way. Or could at least pretend to.

    1. Well, if a troll patents software without actually inventing anything, and hasn’t even written the software that performs the function he’s patenting, then it’s not copyrighted.

      Why should he bother to write the software? The CAFC considers it trivial and unimportant to actually create it and doesn’t consider whether it exists. The PTO doesn’t care. The patent itself covers only the function declared and not the means of performing it. And the troll isn’t planning to go into any business but speculative litigation.

      Software is copyrighted as soon as it’s written, by law. No sooner. Patents have no such requirement. So trolls don’t write it.

      1. Non-existent software is “not copyrighted” in the same sense that it is “not 10,000 lines long” or “not written in Java.” All true statements (in some philosophical sense), but not very meaningful.

        But anyway, that’s not how the petitioner answered the question. He did not say “we do not own any software.” He said “No, I don’t believe our software is copyrighted.” This implies that such software does exist (since non-existent software cannot be owned) but is not copyrighted. This strikes me as highly unlikely, assuming such software does exist.

        For its part the respondent claimed that the petitioner does not own any software. If that is true then the petitioner’s answer was at best strange and at worst either misleading or reflecting of a poor understanding of copyright law.

        It’s probably far from the most important exchange in the oral argument, but it was a striking one, to me at least.

  6. The Court asked at one point if Bilski and Mayo were so clear, then why is the Federal Circuit so fractured in its views.

    Perry answered simply, “Resistance.” He noted that there is a faction in the Federal Circuit that simply disagrees with Mayo. He said that to back off from Bilski and Mayo would reward intransigence.

    I could not of said it better myself. Perry should have noted that the same faction has long been resisting not just Mayo, but Benson.

    Perry cited with special opprobrium, State Street Bank. We all know wrote that opinion. And we all know who leads the opposition to Mayo. And we all know which of the judges of the Federal Circuit who are the greatest heroes of the patent bar.

    Hopefully, this case once and for all sends these revolutionaries a clear message.

  7. Phillips As to the frequent flier program, it’s pretty clear to me that even though it was a novel idea in some sense, the concept itself would have been viewed in in the KSR fashion as quite obvious as a means of improving customer loyalty.

    ROTFLMAO. “B-b-b-but if it was so obvious, why didn’t the other airline think of it f-f-f-first?”

    The hypocricy of the patent teabaggers is boundless.

    1. Oh boy, the ignorant APEs (anti-patent entrepreneurs) are having a field day on this blog.

      I doubt you are going to get the decision you want.

      1. I doubt you are going to get the decision you want.

        It’s all about baby steps and an inexorable trend towards forcing the computer-implenters to grow up, in addition to getting the bottom-feeders and grifters out of the system.

        So I’m afraid I’m going to continue to get what I want, more or less, for many months to come. You see, nobody really wants bottom-feeders like Alice to be part of the patent system. They contribute nothing towards progress in anything except lining patent attorney pockets. The more people see and hear about such folks, the more such folks will be reviled. As they should be.

        You can scream at the sky all you want. People will continue to write software and new information-processing applications for computers whether or not patents exist to “promote” such activity. Only a complete m0r0n would ever suppose otherwise.

        1. Whether or not software wil be continue to be written is a strawman.

          It goes well with your “but for” fallacy of having a patent system.

    2. As to the frequent flier program, it’s pretty clear to me that even though it was a novel idea in some sense, the concept itself would have been viewed in in the KSR fashion as quite obvious as a means of improving customer loyalty.

      Just like allowing a customer to “register” so he/she can order something more quickly is totally obvious as a means for improving customer loyalty.

      Right? Oh, wait …

      There’s nothing quite like the childlike-like world of the computer-implemented junksters. Do they really believe their own scripts? C’mon, people.

    3. The hypocricy of the patent teabaggers is boundless.

      KA-BLOOEY – another irony factory goes up in flames and explosions.

  8. Check it out: “the magical box” analogy for functionally claimed computer-implemented junk makes an appearance, and none of the Justices disapprove:

    Perry: What the applicant or patentee must do must not do is simply describe the desired result. That would take us back to State Street. That would simply say: I claim a magic box that buys high and sells low or vice versa, I suppose, I claim a magic box for investing. That’s what these patents do. Then to put it in the affirmative and in the language of Mayo, the claim has to recite something significantly more, something significantly more than the abstract idea itself.

    Also this:

    Perry: Your Honor, I think there’s a
    significant element to the Federal Circuit that disagrees with Mayo and has been resistant in applying it.

    Yup. It’s time for another spanking and a firm reminder that Prometheus was a 9-0 case that will never, ever be overturned.

    Nobody could have predicted.

    1. Check it out: “the magical box” analogy for functionally claimed computer-implemented junk makes an appearance, and none of the Justices disapprove:

      LOL – be very careful with your NIMBY wishes for magical boxes…

  9. “Mr. Phillips, on the abstract idea, you know that the Bilski case held that hedging qualified as an abstract idea.  So how is intermediate settlement a less abstract than hedging?”

    epic question out the gate.

    1. “JUSTICE KENNEDY:  Well, let me put it this way.  If you describe that to a second­year college class in engineering and said here’s ­­ here’s my idea, now you go home and you program over this weekend, my guess is ­­ my guess is that that would be fairly easy to program.
       MR. PHILLIPS:  I don’t disagree with it,
      Justice ­­”

      So epic!

      1. “JUSTICE KENNEDY:  So the fact that the computer is involved, it ­­ it seems to me, is necessary to make it work.  But the -but the innovative aspect is certainly not in the creation of the program to make that work.  All you’re talking about is ­­ if I can use the word ­­ an “idea.”
         MR. PHILLIPS:  I prefer not to use that word for obvious reasons.”

        It just gets more epic by the minute! That guy’s got to be sweating balls!

            1. “MR. PHILLIPS:  No.  Well, I mean, again, it
              17 seems to me that in some ways what ­­ what you described
              18 there is a caricature of what this invention is.”

              Lulz. Yeah its the caricature you just got done telling them about.

            2. “JUSTICE BREYER:  Of course it’s a
              20 caricature.  It’s a caricature designed to suggest that
              21 there is an abstract idea here.  It’s called solvency.”

              Lulz. Breyer. So funny.

            3. “JUSTICE SOTOMAYOR:  I’m sorry.  But ­­ but
              20 what it appears to be, it sounds like you’re trying to
              21 revive the patenting of a function. ”

              Cutting straight to the heart of the matter.

            4. “JUSTICE SCALIA:  Well, I’m not saying use a
              5 computer is ­­ is much of a novelty.  I mean, that’s ­­
              6 that goes to whether it’s novel or not.  If you just say
              7 use a computer, you haven’t invented anything. ”

              Very interesting take on anticipation Scalia has there.

            5. ” JUSTICE KAGAN:  And what is that, putting
              7 the computer aside?
              8  MR. PHILLIPS:  It is ­­ well ­­ and again,
              9 it’s difficult to do that because you absolutely need
              10 the computer in order to implement this. ”

              Lulz lulz lulz, of course that is difficult because there is nothing else.

            6. “But the key to
              11 the invention is the notion of being able
              12 simultaneously, dealing with it on a chronological basis
              13 to stop transactions that will otherwise interfere with
              14 the ability to settle on time and under the appropriate
              15 circumstances.”

              Ahhh, so the additional something is more of a “notion”.

            7. “So in that sense, I can’t ­­ I can’t
              20 disaggregate it the way in some sense you’re suggesting.”

              He just said that he can disaggregate his argument as requested by the good justice, and now he cannot. Lulz. Surprise surprise surprise. It’s always the same old story with people with ineligible inventions when they get called to the carpet.

            8. “21 It seems to me it’s bound up with in ­­ it’s bounds up
              22 with the whole notion of is this an abstract concept”

              Now he’s just flat out admitting that his “something more” is actually just a notion of this as an abstract concept? I mean, could this be funnier?

            9. “Can you in fact ­­ now, this is ­­ look, there are 42 briefs in this case.  I actually read them”

              Man I guess I should have went ahead and written a brief. I actually didn’t write one because I heard a person on NPR interviewing a justice that said that they only read the amici their clerks pick out for them. I guess she meant in a normal case.

            10. “JUSTICE GINSBURG:  Mr. Phillips, let me just
              20 stop you there, because four Justices of this Court did
              21 not read that legislative history the way you do.  And
              22 it was ­­ was in Bilski.”

              Hah, huge surprise. I wonder about the other 5, whether he’s heard from them yet.

            11. “JUSTICE GINSBURG:  Justice Stevens went
              25 carefully through that and he said:  Congress was
              Alderson Reporting CompanyOfficial ­ Subject to Final Review
              18
              1 reacting to a decision.  It had ­­ it was not addressing
              2 101.  So there are at least four Justices who say ­­ who
              3 didn’t buy that argument.”

              This is a really weird case, I just heard sotomayor say the other day on NPR that they don’t discuss cases prior to oral args so then that is the first place they usually discuss them. Guess this one is getting special attention since it’s the 4th 101 case up there in not many years.

            12. “JUSTICE SCALIA:  By the way, we ­­ we have
              16 said that you can’t take an abstract idea and then say
              17 use a computer to implement it.  But we haven’t said
              18 that you can’t take an abstract idea and then say here
              19 is how you use a computer to implement it ­­
              20  MR. PHILLIPS:  Exactly.
              21  JUSTICE SCALIA:  ­­ which is basically what
              22 you’re doing.”

              Leave it to scalia to lead him right into the trap which Kagan will then spring on him.

            13. “And just looking at it, it looks
              5 pretty complicated.  There are a lot of arrows and
              6 they ­­ you know, different things that go ­­
              7  (Laughter.)”

              So hilarious. What a description of their “flow charts”.

            14. “And second, it should be noted, this is a
              very small problem.  There are 2 million outstanding
              patents in the United States.  In the last four fiscal
              years there were 22,000 infringement litigations
              instituted, but since Bilski, there have only been 57
              district court decisions on Section 101 issues.  There have only been 12 Federal Circuit decisions total on
              computer implementation.”

              You try to tell NWPA et al. that but they insist the sky will in fact fall.

              Lulz.

            15. To be clear, the only reason claims like Alice’s claims could ever be called a “very small problem” (definitely not my words) is because most of the ineligible computer-implemented junk at the PTO is also obvious junk, or flawed for some other reason, and most sane people don’t bother pressing their luck in court with that kind of junk.

              All it would take, though, is for the Supreme Court to shrug its shoulders and the Rich-worshippers at the Federal Circuit will immediately open the door to the worst of the worst.

              Just try to imagine if Prometheus had turned out the other way. Can you imagine the crxp that would be flowing into and out of the USPTO???

          1. PHILLIPS: Giving us a 101 pass doesn’t create a monopoly. It just gets us to the 102 and 103 inquiries, and 112, that are at the heart of what the patent laws ought to be dealing with.

        1. “Easy to program” means that it meets enablement requirement?

          Bizarre, isn’t it? If it’s that easy, §103 should automatically disqualify them.

  10. Sotomayer: JUSTICE SOTOMAYOR: I’m sorry. But but
    what it appears to be, it sounds like you’re trying to revive the patenting of a function. You used the word “function” earlier, and that’s all I’m seeing in this patent is the function of reconciling accounts, the function of making sure they’re paid on time. But in what particular way, other than saying do it through a computer, is this something new and not function?

    And so the unraveling of the softie woftie mythology begins …

    1. LOL – sort of like “Here is the Office view on the integration take-away to the Prometheus” case.

      Once again, dancing a jig way too soon.

  11. link to reuters.com

    From their questions during an hour-long oral argument, the justices appeared likely to rule, as expected, that patents held by Australian company Alice Corp Pty Ltd for a computer system that facilitates financial transactions were not patent eligible. CLS Bank International, which uses similar technology, challenged the patents in 2007.

    Although some of the nine justices signaled a willingness to go further and provide new guidance to lower courts that would describe exactly what types of computer-implemented inventions were patent eligible, others suggested there was no need for so broad a ruling. A ruling is expected by the end of June.

    Making references to ancient Greek inventor Archimedes and other historical figures, Justice Stephen Breyer was one of the court members who appeared keen on a ruling that would have broad application.

    On the one hand, he noted, patent eligibility that is too broad creates monopolies and reduces competition down to “who has the best patent lawyer.” On the other hand, if patent eligibility is too strict, it could “rule out real inventions with computers,” he added.

    If you want to claim a “real invention” of a new computing device, just describe the computer in terms of its new structure and describe the unexpected results that flow from that structure or show that the prior art taught away from computing devices with that structure.

    It’s really not that difficult. Of course, that would also put the bottom-feeders and grifters out of business and we would have to listen to their hysterical crying about how there won’t be any “progress” in programming computers to sort Grandma’s Amazon watchlist according to the last name of the assistant director. Boo hoo hoo hooo!!!!!!!

    1. “On the one hand, he noted, patent eligibility that is too broad creates monopolies and reduces competition down to “who has the best patent lawyer.””

      Which is of course exactly what Gene Quinn states that he wants to happen like every month. I presume there are others out there like him.

  12. On Monday, the Supreme Court will consider when the government should grant patents to processes that are based on abstract ideas. In a world where technology is rapidly changing, the Patent and Trademark Office has been flooded with applications that claim to have invented ways to solve problems. But it can be hard to discern if these creations should be patentable.

    The number of patent applications has more than tripled in the last two decades, and the number of patents granted has multiplied two and a half times. But many of those patents appear to be overly broad and vague, according to a report by the Government Accountability Office. That increase has contributed to a surge in costly, and often frivolous, patent-infringement lawsuits.

    NYT Editorial link to nytimes.com

    1. It is amazing the ignorance by the NYTs. Amazing and sad. How does that number compare to the population growth and the spending in innovation?

      Again, those of us that actually work in the area of patent law and innovation who have many years of experience know that this is a witch hunt.

      It reminds me of the great promises of Clinton that free trade would be a great win for the U.S. (now tell that to Detroit and the whole midwest.) Or that letting China into the WTO was a great idea. Tell that to the 50 million Americans that lost their jobs. Or that regulation of the Banks isn’t needed.

      Now, we are told that patents aren’t needed. Tell you what is going to happen. We are going to go from big corporations spending as much as they can on innovation and backing them up with patents to the big corp spending almost nothing. The corporations will merely have people that take the innovation from other and market power will be all that matters.

      Man oh man. Time after time over the last 30 years have we made terrible decisions that have lead us into becoming a third world nation and now this…..

      (And, again, only the ignorant are arguing to rid our society of patents.)

      1. NWPA only the ignorant are arguing to rid our society of patents

        Actually pretty much nobody is arguing that, and certainly nobody before the Supreme Court today. But go ahead and molest that strawman. It’s what you do best.

        How does that number compare to the population growth

        It vastly outpaces population growth, as has been pointed out to you before.

        and the spending in innovation?

        On innovation? Or patents? There’s a big difference, in spite of whatever your junky script says.

        We are going to go from big corporations spending as much as they can on innovation and backing them up with patents to the big corp spending almost nothing.

        Complete unadulterated bullcrap.

        1. But go ahead and molest that strawman. It’s what you do best.

          AOOTWMD – another parallel universe worht of irony factories goes KA-BLOOEY.

          1. Exactly who is arguing that “we should rid our society of patents”?

            Feldman isn’t arguing that. I’m not arguing that. So who is NWPA responding to? Let everyone know, Tr0llb0y.

      2. “How does that number compare to the population growth and the spending in innovation?”

        Looks like 260k pop. to 317k pop. for the last two decades growth numbers. As to spending in innovation, meh idk, look it up.

        “Tell you what is going to happen. We are going to go from big corporations spending as much as they can on innovation and backing them up with patents to the big corp spending almost nothing. ”

        If the sky falls in such a manner we can always reverse the ruling through congress.

      3. “Tell you what is going to happen. We are going to go from big corporations spending as much as they can on innovation and backing them up with patents to the big corp spending almost nothing. The corporations will merely have people that take the innovation from other and market power will be all that matters.”

        a) You’re a fool if you think this doesn’t happen anyway.
        b) From a public good standpoint, this situation is perfectly tenable. The situation only fails if the “other” stop innovating, and then big corp doesn’t resume spending.
        c) If “other” can achieve the innovation without the spending power of big corp, what is big corp doing with its money? Throwing it away? Or intentionally hiring bad people?
        d) Don’t confuse yourself – there’s nothing in this case that constitutes innovation.

        “Man oh man. Time after time over the last 30 years have we made terrible decisions that have lead us into becoming a third world nation and now this…..”

        If the US is doing so poorly, and China is doing so well, perhaps the solution would be to assume their stance toward patents? I doubt you’d like to do that.

        1. what is big corp doing with its money?

          Are you really asking that question? Have you been an examiner all of your professional life?

          LOL – Tell me about “China’s stance towards patents.” I doubt if you understand the changes they are going through (hint, they are repeating the historical model of turning from a pirate nation into a nation protecting IP).

          Try not to shoot yourself in the foot with your lack of knowledge my examiner friend.

  13. Will there be audio today? How about a transcript?

    -

    Is there any reason to expect a different decision from what we had in Bilski? I don’t think so. Kagan will probably be a stare decisis moderate on eligibility like Stevens.

    Last time the four radical patent expansionist judges (Roberts, Thomas, Alito, and Kennedy) pointed out that they considered just about anything patent eligible on pretty much any vague and abstract pretext but Bilski went too ludicrously far even for them. They will say the same this time: there are no specific limits but Alice shows that even without limits you can go too far.

    The four centrists will write another centrist opinion like the one Stevens wrote last time. Probably Breyer will write it, but it could be one of the younger justices; Ginsberg doesn’t seem to want to write any of these.

    And Scalia will again decline to take a position, just like in Bilski. He might even tell us why like he did in Myriad. Ultimately he isn’t confident he knows the right answer, unless he’s had an enlightenment recently. Of course, Scalia will agree with the other eight that Alice is nuts; you don’t need any kind of solid doctrine to see that.

    So it will be 9-0 in favor of CLS Bank and ineligibility. There will be no opinion gaining full assent from more than four justices. The CAFC will take the lack of consensus as license to continue enforcing patents like Alice’s and Ultramercial’s again as if the holding on the merits never happened. In other words, it will be exactly like Bilski.

    1. it will be exactly like Bilski.

      I don’t think so. In part, that’s because the Supreme Court is aware (now) that their decision in Bilski didn’t make it clear enough for certain judges on the Federal Circuit and so these things need to be spelled out more plainly. I don’t think they are going to blink twice in a row. That said, I’ll be (pleasantly) surprised if they manage to tank most of the functionally-claimed computer-implemented junk presently being issued with this decision. But they can put the writing on the wall, which might be enough to force the kindergartners on the Federal Circuit, at least, to grow up and recognize that using the word “computer” in a claim in 2014 does not turn ineligible junk into eligible junk, no matter how non-obvious that junk might be.

    2. Owen, your post is ridiculous. Try to understand that the Congress makes the laws and SCOTUS is supposed to statutory interpretation along with determining whether something is constitutional. They don’t make the laws which you post assumes.

      1. Critical to the anti’s gameplan is for the Court to be unable to shake its addiction of its finger in the 101 nose of wax and not make law.

    3. Owen, Scalia has got to see that he needs to take a stand and that simply declaring claims abstract without ever saying why is not going to cut it much longer.

    4. If it’s one thing not needed here, it is a Malcolm no-nothing-about-law clone like Owen.

      Like Stevens? A moderate? Let alone a stare decisis moderate? What planet are you from?

      LOL “Radical patent expansionists” – Other than you disagree with their views, how exactly have these Justices been patent expansionists? You use that term, but it appears that that you do not know what that term means.

      Centrists? Like Stevens? With ‘centrists’ like this, no one ever needs anything left of center.

      Just namecalling – no doctrine required… (Malcolm’s school of legal reasoning in action).

      exactly like Bilski” – given your view of Stevens, this means that you did not have any clue on that decision either.

    1. It’s going to be so much fun watching the patent teabaggers heads explode. There’s not enough popcorn in the world, really.

          1. I recall a mistaken Diehrbot prediction from you before Bilski anon.

            You recall incorrectly.

            I know how this case should be decided. I do not know how this case will be decided.

            1. I do not know how this case will be decided.

              I’m not. Alice gets hammered 9-0 and the landscape available to the junksters and patent trolls shrinks yet again. Detectable effect on the economy and innovation? Zilch or positive. Public reaction: cheers all around.

              And so much more to come!

              Alice Corporation Pty. Ltd. v. CLS Bank International (subject matter eligibility of computer implemented inventions and software). Oral arguments March 31, 2014 with decision expected June 2014.

              Lexmark Int’l v. Static Control (allegations of patent infringement against non-competitor can create Lanham Act claim). Decided March 25, 2014.

              Octane Fitness v. Icon Health & Fitness (proper standard for determining an “exceptional case” in the attorney fee shifting context of 35 U.S.C. §285). Oral arguments held February 26, 2014 with decision expected by June 2014.

              Highmark v. Allcare Health Mgmt. (standard of appellate review for fee shifting decisions). Oral arguments held February 26, 2014 with decision expected by June 2014.

              Nautilus v. Biosig (standard for determining when a patent claim is invalid as indefinite). Oral arguments scheduled for April 28, 2014 with decision expected in June 2014.

              Tip of the iceberg. But Gene Quinn says that “the pendulum is going to swing back” so you shouldn’t worry. Unless, of course, Gene Quinn is completely full of cr@p, which seems incredibly likely. LOL.

            2. What does “shrink again” mean exactly?

              Or do you insist on being nebulous enough so that you can ‘claim victory no matter what’?

              What does Gene Quinn have to do with our conversation here?

              6 – what does your little psych book have to say about Malcolm’s obsession with a person that does not even post on this board?

            3. you can ‘claim victory no matter what’?

              Huh?

              LOL! Wow, you are truly a deluded freak. But you’re also the perfect Big Fat Mouth for the patent teabaggers, the Biggest Legal Losers Ever. Get ready to chalk up another one.

            4. What does Gene Quinn have to do with our conversation here?

              You’re the one who always brings him up, bro’. You know, he’s got that great blog where intellectual dishonesty isn’t tolerated. As if either of you could tell the difference. LOL!

            5. a person that does not even post on this board?

              Right. Gene’s just a random guy. He has nothing to do with patents, especially computer-implemented junk.

              How st00pit are you, anon?

            6. Well by all means, go ahead and share with us specifically how it “should” be decided. Don’t leave out why it “should” or in other words is “obliged” to be decided in that fashion or we’ll all be sooooo sad.

              And can’t you even take a wild guess as to how it will be decided? I mean come on, surely you must have some inkling one way or the other.

            7. “I have given you my impressions after the three main parts of the oral arguments.

              Your turn.”

              9-0 it’s abstract, all claims go down. There will be at least minimal lip service paid to circumstance that the claim is tied to a computer and that will be ruled not enough here, and never enough to make eligible that which was previously ineligible so long as the tie to a computer is to an old computer (this of course will not be addressing the alappat nonsense about a “new computer” being made everytime one is programmed but will be made by implicitly setting it aside).

              95%+ chance this happens. 5%- chance they go all out, or practically all out, “anti-patent”, adopting the view of the gov essentially limiting patents strictly to their traditional roles prior to judge rich arriving, just to pressure congress even more to act because they’re tired of trying to sort through it all. 0 percent chance alice walks.

            8. 6, you misunderstand what existed prior to Judge Rich, and you fail to understand that the poor General was simply wrong in his views on ‘technical.’

        1. I recall similar predictions in Bilski.

          Bilski’s junk got tanked, as predicted. The teabaggers pretended that there were “silver linings.” How’d those “silver linings” work out for you guys?

          And then came Prometheus. Remember that one? I do. 9-0.

          Have you softie-woftie junksters decided on your fallback position yet? Or are you going to keep pretending that the Supreme Court doesn’t get to decide things that affect your grifting schemes?

          1. What you predicted and what you type now are two very different things Malcolm.

            You disappeared for several months after the Bilski decision.

            Likewise, you did the opposite after the Myriad decision, no doubt because I had reminded you of your disappearance after Bilski. After Myriad, you unleashed a literal diarrhea CRPfest of 30,000 plus mewling words of QQ – and could not bother with three simple words: anon was right.

            You could only couch any note affirming my correct position in petty insults. Funny, how 6 has found it difficult to use that pretty little psych book of his to analyze your behavior.

            As to Prometheus, your self-FAIL and hurry-up-at-post-the-link-to-the-Office-Integration takeaway and your tossing your pet theory on a bonfire is legend. This does not detract from your G-propaganda style of perpetually repeating your big 1ies.

            1. “Funny, how 6 has found it difficult to use that pretty little psych book of his to analyze your behavior.”

              Anon I was only able to diagnose your condition because someone else tipped me off to the diagnoses and the symptoms were so clearly present and were clearly present so often. I didn’t just pull out a book and take a wild stab at analyzing your behavior.

            2. You have the book now 6, right? Why is it that you only wish to apply it to me?

              Clearly, many of the anti-posters here (yourself included) exhibit more deleterious symptoms on a much more pervasive scale.

            3. “You have the book now 6, right?”

              Um no I don’t have “the” book. Although I do have a psych 101 book somewhere but I haven’t read it in years.

              “Why is it that you only wish to apply it to me?”

              I don’t apply “it”, as in “a book”, to anyone.

              To be clear, I don’t mean to single you out so let me say a bit about why I’d wish to apply “it” to you at all in so far as I “wish” to note that your symptoms align with two specific conditions. I wish to do that mainly because it will help others to understand your usual behavior/views/comments. Thereby enabling them to better be able to adjust their own behavior as well as expectations of and reactions to your behavior accordingly. But also in the likely vain hope that you’ll one day decide to seek treatment on your own even though according to the online literature that doesn’t happen. Certainly such cannot be impossible, I mean, you could at least mention that some folks have been concerned that perhaps you have x condition to your doctor and see what they say at your next annual check up. Finally I wish to point the abovementioned out simply because those specific conditions, and how they are playing out in various symptoms, is interesting to me as a scientist. Note that amongst these “I’m out to get anon” is explicitly hereby not included so don’t get all paranoid on me alright? I know you’re considering going, or have decided to become already, all paranoid because you’re asking me why I’m only picking on you. Just say no to paranoia.

              But as to why I’d only do it for you, again, I only know of anyone acting in a way that would meet a criteria for a condition I know about. If you’d like to point out a condition that you think MM has displayed symptoms of having then I could help you out and look into it for lols though I doubt we’ll have anything. The only reason my pointing things out about your condition matters is because of the pronounced nature and frequency with which you display symptoms even in interbuts comments. MM and others on the other hand, display no symptoms of any conditions I know of, other than being the victims of a psychopath’s behavior for the last few years. But you can of course feel free to bring any such conditions to light if you feel a need to.

              ” exhibit more deleterious symptoms”

              What condition(s) are those “deleterious symptoms” indicative of anon? Feel free to enlighten us. We’re all listening with baited breath.

            4. What condition(s) are those “deleterious symptoms” indicative of anon? Feel free to enlighten us. We’re all listening with baited breath.

              Asked and answered, 6 – many many many times now.

              Pay attention.

            5. “Asked and answered, 6 – many many many times now.”

              Um I haven’t asked you what condition he supposedly is suffering to until this day anon. I think you’re not understanding the relationship between symptoms and conditions. You’ve told us about some symptoms you think he’s exhibiting but you haven’t IDed any conditions that they should indicate.

              But even if you supposedly have answered it many many times I should very much appreciate it if you will make it explicit for me one more time.

              (observers will note that in the ways to deal with folks with anon’s condition there was listed “ask something of them because they won’t have much to say” and anon responds just like predicted in the article. Just as he often does. Here we see that same thing play out for the millionth time that has happened a million times over the last few years when something is asked of him with anon using his trademark “asked and answered” and not actually answering, even when he started the conversation down this path. Indeed it appears that such is a good way to deal with him as he won’t have much to say)

            6. Um I haven’t asked you what condition he supposedly is suffering to until this day anon

              Your sarcasm meter s still broken 6 – I have been providing you the answers fro some time now.

              Open your eyes and WAKE UP son.

            7. “Your sarcasm meter s still broken 6 – I have been providing you the answers fro some time now.”

              Oh, so you’re being sarcastic when you suggest he has a condition? I agree, he doesn’t really have one, that’s just you being sarcastic. The “answer” you’ve provided repeatedly now is “none”.

            8. 6,

              You misunderstand in that I can be both sarcastic and give you answers at the same time.

              Are you aware of how limited your mental processing power is?

          2. Why is it that you only wish to apply it to me?

            Says the s0ci0path and habitual liar who trolled this blog for years using hundreds of different pseudonyms to insult everybody who disagreed with him about anything, all the while claiming to engage in battle with a (try to believe it) “vocal minority.”

            1. how is your Sockpuppet farm over at PatentDocs

              Whatever you think is going on there is nothing remotely similar to what you did to this blog for years, Tr0llb0y.

              It’s Kevin’s call, obviously, but most of what goes on there these days is you and Eric “Impeachment” Guttag competing with each other to see who can race faster to the bottom (“you’re an ignorant, anti-patent commie!”).

              In other words, it’s kinda like Gene’s blog except it’s biotech patent fluffing instead of computer-implemented junk that’s being fluffed. But otherwise it’s just the usual chicken-little sniveling about any and every attempt to clean up abuse of the patent system.

              And, yes, every biotech patent attorney I know is aware of this.

              [shrugs]

            2. LOL – your duplicity is stunning for its chutzpah if nothing else.

              And as for ‘vocal minority,’ even the presence of multiple pseudonyms changes nothing as to the vocal minority that you and your little circle of anti’s represent.

              But please, kick sand as you pound that ‘policy’ table with your own head in the sand of reality. Continue to whine about suckies being the worst thing ever even as you are currently the most prolific one using them (even as you blatantly 1ied about using them here).

    2. If you read the transcript it’s abundantly clear that SCOTUS wants to either (a) decide the case on narrow grounds, or (b) draw a line between getting rid of software patents and preventing some of the nonsense that goes on currently.

      I hope it’s (b), and that they enumerate an actual test for what an “abstract idea” is, which would eliminate (at least some) confusion.

      Leave it go Ginsburg to offer up this gem, in response to Respondent’s attorney making the ludicrous statement that “this is an easy case”:

      JUSTICE GINSBURG: The Federal Circuit in this case split in many ways, and it had our decisions to deal with. You said, given Bilski and Mayo, this is an easy case. What is the instruction that escaped a good number of judges on the Federal Circuit? How would you state the rule?

    1. Teva v. Sandoz: Issue: Whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Federal Rule of Civil Procedure 52(a) requires.

      Should be interesting! Thanks for the update, David.

      1. Isn’t the first issue in that case whether a factual finding can even be made to support a claim construction since it is supposed to be a pure question of lawl? Or did they go ahead and acquiesce in that case that factual findings can support a claim construction?

  14. Every invention is a kind of idea, nd all ideas are abstract until they are executed. Hence “being abstract” is not a relevant criterion.

    The truth is that in a free market society ideas are free, else there is no competition. Patents hamper competition.

    People who develop business methods are consutants. They should be paid by the hour, not by a property right.

    1. And yet, our Founding Fathers CHOSE to provide power to Congress to enact a patent system.

      The anti-patent leanings of my pal Reinier are stillborn.

      Including the notion that patent rights are personal property rights.

      Man, that must enrage him so. That his “Truth” simply does not accord with the real Truth.

      1. The anti-patent leanings of my pal Reinier are stillborn.

        Meanwhile, you were born fluffing a junk patent so everything balances out.

            1. Need I again post Reinier’s philosophical underpinning (and his hypocrisy towards pseudonymous posting, Malcolm?

              Or are you willing to let your banal retreat to an offensive religious ad hominem – so typical of your exchanges – shine the bright spot light of irony on how you conduct yourself?

    2. Every invention is a kind of idea, and all ideas are abstract until they are executed. Hence “being abstract” is not a relevant criterion.

      It would seem to be a “relevant criterion” at least in the instances where the novel “idea”, as claimed, is disembodied. Abstractions are synonymous with mental processes, i.e., “thinking about X.”

  15. I completely agree with mmm’s comment. The Supreme Court has regularly extended patent protection to new areas of innovation. The oft-quoted legislative history of the ’52 Act indicates that Congress intended § 101 to cover “everything under the sun made by man”

    Ultimately, the other “conditions of patentability” under 102 and 103, as well as the disclosure requirements of 112 are supposed to do the work of restraining claim scope and preventing too much preclusion of follow-on innovation.

    Then again, meaningfully enforcing § 112 in the software context is going to take a major rethinking of the software patent application process. Perhaps mandating disclosure of source code, or at least some subset of the code base, should be required to satisfy § 112.

    In this month’s issue of JETLaw, I’ve just published a piece exploring these and other issues. Ultimately, the proper rule under § 101 should be the rule from State Street Bank. Giles Rich got it right, an invention should be patent eligible if it produces “a useful, concrete and tangible result,” even where that result is merely the transformation of data.

    link to jetlaw.org

    1. “merely the transformation of data.”

      The most important law of physics is the conservation of information.

      1. the conservation of information.

        For anyone who missed NWPA’s sarcasm:

        1. Conservation of information isn’t a physical law.

        2. Constant destruction of information is implied by the Second Law of Thermodynamics.

        1. No. Owen. There is a law in the physics called the conservation of information which has been called by some of the leading physicist as the most important law in physics.

          1. Well that explains why there’s so much literature on the interbuts about that “law”. Except you know, for the creationist “scientists”.

            link to google.com

            NWPA when are you going to stop opining on physics when you plainly have no background or understanding of the subject?

            1. “…and of course, 6 merely looks at the title of the first one…”

              Um I looked at all of the on the front page. Not a one from a respected source going on and on about the importance of this “law”.

              Trust me I know about this “law”, which isn’t actually necessarily a “law”. It’s more of a principle or rule that flows from an actual law, and it depends heavily on how you define “information”. And it is not the “most important law” at all, even in so far as you can call anything “the most important law”. The whole of it is far above NWPA’s head he just likes to talk about it since it has the word “information” in it and he has a hard on for things related to information.

              But feel free to cite some actual pertinent articles from good sources. I’m interested to read about what they have to say.

    2. Parker makes a clearly erroneous statement of “ The Supreme Court has regularly extended patent protection to new areas of innovation.

      The SC does not have the power to write patent law and thus can neither extend nor contract the explicit patent law as written by the branch of the government that has been given authority under the constitution.

      As to the “rethinking” under § 112, you seem to be seeking to add additional new law that just is not there, nor is required to be there.

      Be careful with any use of “State Street,” as there are nuances in that decision that will be immediately seized upon to drive the discussion into the brier patches.

      1. The SC does not have the power to write patent law

        They do have the power to interpret patent law. Try to get to used to that because it’s going to keep happening.

        1. As previously noted, interpreting a map is a far cry from writing the map.

          You seem not to be able to understand such a simple distinction.

          1. interpreting a map is a far cry from writing the map.

            Not if you’re the Supreme Court.

            Did you ever graduate from that Internet law school you were enrolled in?

            1. LOL – Especially if you are the Supreme Court and you recognize which branch of the government was allocated the authority in the Constitution for writing the map.

              Little thing called separation of powers you might want to brush up on.

    3. Parker Hancock: The oft-quoted legislative history of the ’52 Act indicates that Congress intended § 101 to cover “everything under the sun made by man”

      Does this include old materials with new information stored on them? e.g., non-electronic files on paper, and electronic databases? If so, where in 102 and 103 is the language intended to preclude the patenting of useful, non-obvious information?

      How about new relationships between individuals, or relationships between and individual and the state? These are “made by man”. Are these relationships eligible for patenting? Where is the language in 102 and 103 intended to preclude the patenting of useful, non-obvious relationships?

      How about new thoughts? These are “made by man.” Are these eligible for patenting? Where in 102 and 103 is the language intended to preclude the patenting of useful, non-obvious thoughts?

      meaningfully enforcing § 112 in the software context is going to take a major rethinking of the software patent application process. Perhaps mandating disclosure of source code, or at least some subset of the code base, should be required to satisfy § 112.

      You’re definitely on the right track. Another consideration would be to require computer-implementers to disclose at least one example of an alleged “structure” that corresponds to the claimed algorithm so the USPTO can create a database of algorithms for comparison of the “structure.” In that case, Parker, perhaps you can tell everybody how the “structure” of such an algorithm changes when different labels are given to the inputs and outputs (without any other changes).

      Giles Rich got it right

      When it comes to eligibility, Giles Rich was the most consistently wrong person in the history of patent law. In part, that’s because he failed to think about very basic and fundamental issues that should have been immediately discernable to a person of his alleged intelligence. Emphasis on “alleged.”

      an invention should be patent eligible if it produces “a useful, concrete and tangible result,” even where that result is merely the transformation of data.

      Please define what you mean by the “mere transformation of data” and explain how that definition fits in with any reasonable definition of “tangible result”. Thanks.

      1. Hey!

        Thanks for the reply! I was hoping I’d get some valuable push-back from the commenters at Patently-O.

        To your first question, I would say that § 103 should do the majority of the work. If there is a well-known method for doing something, and all you did was implement it on a computer, that implementation is possibly obvious under §103. Particularly if the patent applicant is unable to point to any significant technical challenge that required an innovation.

        Perhaps the better way to think about my view of § 101 is through the lens of utility. A result does not have to be physical to be useful. If there is a useful result that is merely the outputting of data, the invention should be patent-eligible.

        Think about Judge Moore’s comments during oral argument in the en banc case below. She wondered how a patent could be denied to a physical computer that could physically be put on a patent examiner’s desk running software and producing a useful result.

        The invention is physical, and the result is useful. That should be the formula for § 101 eligibility. And would exclude some of the more abstract examples you mentioned, including merely mental ideas.

        As to enforcing § 112, I have some ideas, and am working on another piece exploring them. Stay tuned!

        Finally, I know Judge Rich is a controversial figure, but he was a primary author of the ’52 Act. He understood better than most the interplay between §§101, 102, 103, and 112. Each has its function, and each should not be misused. The current jurisprudence misuses § 101 to accomplish the aims of §103 and/or §112.

        Once again, thanks for the comment!

        1. Parker: If there is a well-known method for doing something, and all you did was implement it on a computer, that implementation is possibly obvious under §103

          Uh … right. I know what 103 says. That’s not the question you were asked.

          I was hoping I’d get some valuable push-back f

          So you could ignore it? Because that’s what you did.

          Think about Judge Moore’s comments during oral argument in the en banc case below.

          Those comments were possibly the silliest comments I’ve ever heard come out of the mouth of a Federal Circuit judge. You can put a book on a desk with new, non-obvious useful information in it. It produces the useful result of educating people who request to see the information in the book. Eligible subject matter then according to Moore? What if, instead of a book, it’s a computer with new, non-obvious information stored on it? What’s the difference, from Moore’s perspective? They both sit on your desk. They are both useful. 103 is worthless as a filter, unless you wish to ignore the claim limitations about the non-obvious useful information (and how do you justify that, Parker? 103, as written by Judge Rich, expressly forbids ignoring claim limitations … doesn’t it?).

        2. A motion picture made for training purposes is “useful”, “under the sun”, and made by man, but not patent eligible.

          The cost of a million bucks to access 102, 103, 112 means any accused infringer cannot “win” no matter what, and is the very mechanism of patent abuse.

          101 has an obviousness/anticipation prong directly in the statutory language, unless the word “new” has no meaning….

          “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof”

          Oh Noes, the Supreme Court is going to ignore the LAW and be INTELLECTUALLY DISHONEST…will the republic stand?

          The falcon cannot hear the falconer; Things fall apart; the center cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed….

          1. Nice rant Martin.

            Have you asked your counsel yet whether she understands that she does not have informed consent from you given how you remain so uninformed on the law?

          2. Wow. I’m very glad you are paying attention too the words in the statute.

            ““Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof””

            However, if your going to pay attention to “new”, you have to play fair and pay attention to “process.” And a process doesn’t become [not-a-process] if it is, or can be alleged to read on, a mental process. Note, there is not exclusion for mental processes in the statue.

            Now then, at some point hoeing was known and oxen were known. However, using an ox to pull a hoe was not known. It was an invention to get an ox to pull a hoe.

            Likewise, a new use of an old machine, is an invention under 101. Even if the machine is a computer. Getting computers to do things they have never done before is a new use of an old machine, even if the thing has been done with pencil an paper before (e.g., spread sheet, word processor) or even been done mentally before (e.g., converting spoken sounds to comprehended words).

      2. Malcolm’s strawman building is underway: “Does this include old materials with new information stored on them?

        left out (of course) is the distinction of the exceptions to the judicial doctrine of written matter

        Clearly, Malcolm has volunteered an admission of knowing and understanding controlling law in this area, and his deliberate omission here of a critical element of the law can only be deemed unethical.

        First amendment or not – if Malcolm is indeed an attorney, he cannot ethically continue to operate as he does.

          1. Hmm, links to the ethics side of the Patently-O fence are blocked – very interesting.

            Let’s try then with two posts:

            And the biggest irony is that Malcolm is without a doubt the biggest crybaby QQ against other peoples unethical patent practices (according to the RQ/HD standard).
            AOOTWMD – Malcolm simply refuses to behave ethically in his dogmatic quests against what he perceives as ‘ev1l.’
            Just like his adherence to his notion that he does not have to be intellectually honest because this is a blog and not a court of law.
            Newsflash Malcolm:

            link to patentlyo.com

            Again – it is not your beliefs that I take issue with necessarily, it is how you express those beliefs.

      3. “When it comes to eligibility, Giles Rich was the most consistently wrong person in the history of patent law. In part, that’s because he failed to think about very basic and fundamental issues that should have been immediately discernable to a person of his alleged intelligence. Emphasis on “alleged.””

        Oh but come on MM, he wanted the diaper change by horse and carriage (or horseless carriage) business to be totally patent eligible! I mean, he had to do something to finangle things around so that such would be 1. eligible and 2. meaningfully able to be claimed (functional). He wanted to promote convenient diaper changing so the man simply did what he had to do.

  16. I hope the SCOTUS goes out of its way to do three things:

    1. Explains that 101 is expansive in scope, but
    2. The reason these cases look like 101 subject matter cases is because the claims are drafted in a way that covers more than the “invention” disclosed and that the claims do not distinctly claim the invention described in the specification and thus are actually invalid under 112.
    3. Tell the Fed. Cir. it’s application of 112 is wrong and instruct it to strictly enforce 112 against patentees.

    1. Great comment anon. I haven’t decided how this is going to go yet, but I am sure that Lourie’s method will be rebuked.

    2. claims do not distinctly claim” is explicitly not a 101 argument – the application (or mis-application) of 112 is not before the Court.

      Sorry, mmm, but I do not see your hoped being met.

      1. > Sorry, mmm, but I do not see your hoped being met.

        Hence the reason #1 is in there: this case is not a 101 case. To the extent the argument is that these claims are “abstract” in any meaningful sense, it is best resolved with a strict application of 112 such that the claims distinctly claim the invention.

        1. Hence my view that you will likely be disappointed.

          The Court is not likely to give up its addiction of keeping its fingers in the 101 nose of wax.

          1. The Court is not likely to give up its addiction of keeping its fingers in the 101 nose of wax.

            That’s because they have so much fun wiping their boogers on the patent teabaggers. Human kleenex. You think the Supreme Court doesn’t know what a bunch of self-absorbed bottom-feeders and grifters they are dealing with when they are confronted with
            “innovators” like Alice?

            1. The irony of course is that Malcolm does not realize how much his self-loathing (if indeed he is a patent attorney obtaining patent rights for his clients) comes across in his vile spewing.

              My advice to you remains, Malcolm: get into a field in which you can believe in the work product you produce.

    3. I hope the SCOTUS goes out of its way to do three things:

      1. Explains that 101 is expansive in scope, but
      2. The reason these cases look like 101 subject matter cases is because the claims are drafted in a way that covers more than the “invention” disclosed and that the claims do not distinctly claim the invention described in the specification and thus are actually invalid under 112.
      3. Tell the Fed. Cir. it’s application of 112 is wrong and instruct it to strictly enforce 112 against patentees.”

      Whereas I hope the SCOTUS goes out of its way to do three things:

      1. Explains that the exclusions to 101 are expansive in scope
      2. Dismiss Alappat out of hand ala state street
      3. Take out the B claims, and hopefully all B claims along with them under a different grounds from the other claims directed just to them being b claims in the first place.

      1. Take out the B claims, and hopefully all B claims along with them under a different grounds from the other claims directed just to them being b claims in the first place.

        They can at least let the Federal Circuit see the writing on the wall. Obviously they’ll have to write in big bright letters, and keep the words simple.

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