Unpatentable: See Bilski, Mayo, Flook, and Benson

By Dennis Crouch

The question of patentable subject matter is nominally grounded in the statute 35 U.S.C. § 101. That statute offers patent rights to anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter.” However, very few section 101 cases actually refer to the statutory text. Rather, the focus is on the Supreme interpretative stance that the statute also prohibits patents on abstract ideas, products of nature, and natural phenomena. It is the definition of Abstract Idea that is at stake in Alice Corporation Pty. Ltd. v. CLS Bank Int’l. [TRANSCRIPT OF ORAL ARGUMENTS]

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. After Alice Corp., sued CLS Bank for infringement, CLS responsively argued that the patent claims are invalid as impermissibly encompassing an abstract idea.

In the background, the Supreme Court has decided three recent Section 101 cases: Bilski, Mayo, and Myriad. Arguing for CLS Bank, Mark Perry argued that these two cases determine the outcome here.

MR. PERRY: Bilski holds that a fundamental economic principle is an abstract idea and Mayo holds that running such a principle on a computer is, quote, “not a patentable application of that principle.” Those two propositions are sufficient to dispose of this case. If Bilski and Mayo stand, Alice’s patents fail.

Rather, to be patent eligible, CLS Bank argues, the computer implementation must offer a “technological solution.”

MR. PERRY: We know from Benson, the Court’s seminal computer implementation case, that if you can do it by head and hand, then the computer doesn’t add anything inventive within the meaning of the 101 exception. That is the holding of Benson. And the Court reiterated that in Mayo. Flook said exactly the same thing. If you can do it with pencil and paper, then the computer is not offering anything that the patent laws are or should be concerned with.

It is only where the method will not work without a computer, which is not these claims, and where the computer itself is doing something that the patent law is willing to protect.

Justice Ginsburg asked why – if it is such a simple case – why the Federal Circuit struggled so:

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?

MR. 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. Chief Judge former Chief Judge Michel filed a brief in this Court essentially saying Mayo is a life sciences case, You should limit it to that because if you apply it to everything else, then these patents are no good. Mayo we submit is a technology-neutral, Industry-neutral, exception-neutral framework that can be used to answer all of these questions.

We should note here, that, although CLS Bank sees the Mayo test as exception-neutral, the respondent was not asked to explain why the test was not applied the most recent Section 101 case of Myriad.

The reference to Mayo/Flook is important – with the notion that to be patent eligible there must be a technological innovation rather than discovery of an abstract idea followed by routine technological implementation of that idea. The result of the Mayo/Flook approach is that patent eligibility is temporally dependent. In particular, innovations that were once patent eligible will later be not eligible once the implementing-technology becomes well known. Mr. Perry explains:

JUSTICE SOTOMAYOR: How about email and just word processing programs?

MR. PERRY: At a point in time in the past, I think both of those would have been technological advances that were patentable. . . . Because they would have provided a technological solution to a then unmet problem. Today, reciting, and do it on a word processor is no different than and do it on a typewriter or and do it on a calculator.

The inventive contribution component, which uses specifically the language of conventional and routine and well understood, will evolve with technology. That’s why it’s different than the abstract idea component.

Mr. Phillips responds somewhat weakly that there must be “significant limitations on the extent to which novelty has to be built into 101.

There is some potential that the decision will be rather small – deciding that an escrow-settlement method is an abstract idea and that the routine addition of computers to facilitate the method does not alter that original conclusion. This result would essentially parallel the results of Bilski v. Kappos and would potentially add nothing of substance to the law. Many of the questions followed this line of thinking and Alice’s attorney, Carter Phillips, repeatedly worked to explain how the technological aspect of the invention is much more complex that has been commonly caricaturized. CLS Bank argued the opposite.

JUSTICE GINSBURG: 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?

MR. PHILLIPS: … What we claim is a very specific way of dealing with a problem that came into being in the early 1970s of how to try to eliminate the risk of nonsettlement in these very massive multiparty problems in which you need to deal with difficulties that exist at different time zones simultaneously and to do it with a computer so that you not only take them on chronologically, deal with them sequentially, based on the kind software analysis that the patent specifically describes by function.

And it goes even further than that, and does something that no escrow agent and no … settler that I know of. It actually blocks specific transactions that, in the shadow account, would violate the terms of the settlement that would ultimately be implemented.

. . . [This is an invention that] you cannot, absolutely cannot [implement this system without a computer], because it is so complex and so many interrelated parts.

. . . I believe that if you analyze the claims and you don’t caricature them and you don’t strip them out of the limitations that are embedded in there, this is not some kind of an abstract concept. This is not some kind it’s not an abstract idea..

JUSTICE KAGAN: There is something that you’ve patented that has that is not just simple use a third party to do a settlement. . . . And what is that, putting the computer aside?

MR. PHILLIPS: It is well and again, it’s difficult to do that because you absolutely need the computer in order to implement this. But the key to the invention is the notion of being able simultaneously, dealing with it on a chronological basis to stop transactions that will otherwise interfere with the ability to settle on time and under the appropriate circumstances. And the only way you can do that in a realtime basis when you’re dealing with a global economy is to use a computer. It is necessary to the efficacy of this. So in that sense, I can’t I can’t disaggregate it the way in some sense you’re suggesting. It seems to me it’s bound up with in it’s bounds up with the whole notion of is this an abstract concept. . . .

MR. PERRY: On the abstract idea, Justice Ginsburg, you asked Mr. Phillips what’s the difference between hedging and this claim. There is no difference. This is hedging. It is hedging against credit default rather than price fluctuation, but it is simply hedging. . . . Mr. Phillips suggests, well, we have multilateral transactions, global things, chronological, time zones and so forth. None of those are claimed, Your Honor. Those are all recited in specification. The claims read on a single transaction involving two parties.

JUSTICE SCALIA: Why isn’t it why isn’t doing it through a computer not enough? I mean, was the cotton gin not an invention because it just means you’re doing through a machine what people used to do by hand? It’s not an invention. It’s the same old, same old. Why is a computer any different in that respect?

MR. PHILLIPS: At one level I agree with you completely. There is no difference between them.

This Court has, however, said on more than a few occasions, albeit in dicta, that coming up with an idea and then say, use a computer, is not sufficient. And what I’m trying to suggest to you is we don’t fall within that dicta. Now, if you don’t accept the dicta and you say use a computer is fine, then I think we’re done.

MR. PERRY: Of course, a patent that describes sufficiently how a computer does a new and useful thing, whether it’s data compression or any other technological solution to a business problem, a social problem, or a technological problem, would be within the realm of the of the patent laws. That is what the patent laws have always been for. . . . Those algorithms, those inventions are undoubtedly technological. And if they are used in a trading platform or a hedging system or something else, that wouldn’t disable them [as patent eligible].

The bigger version of the decision would more particularly address software patenting. Here, Alice suggests that the case is very much about the ongoing viability of software patents:

JUSTICE KENNEDY: You understand the government to say no software patents.

MR. PHILLIPS: That’s the way I interpret the government’s the government’s brief.

However, both CLS Bank and the Government argue otherwise. Mr. Perry states “this will not affect software patents. . . . [Rather,] we are talking about a group of patents … that’s way out at the tail end of the distribution.” Likewise, the Solicitor General Verrilli argued that “it’s just not correct to say that our approach would make software patenting ineligible. [In our proposed test] any software patent that improves the functioning of the computer technology is eligible. Any software patent that improves that is used to improve another technology is eligible.” In thinking about the consequences for patentees who already hold patents that may become ineligible, Mr. Perry suggested that their problems are minimal because “the patent holder would have the opportunity to institute a reexamination proceeding or some sort of administration process to address that issue.”

Justice Breyer indicated the importance of creating a rule that works:

JUSTICE BREYER: There is a risk that you will take business in the United States or large segments and instead of having competition on price, service and better production methods, we’ll have competition on who has the best patent lawyer. . . . And if you go the other way and say never, then what you do is you rule out real inventions with computers. . . . [The amicus briefs provide] a number of suggestions as to how to go between Scylla and Charybdis. . . . I need to know what in your opinion is the best way of sailing between these two serious arms.

MR. PHILLIPS: Well, Justice Breyer, I guess I would suggest to you that you might want to deal with the problem you know as opposed to the problems you don’t know at this stage. I mean, we have had business method patents and software patents in existence for well over a decade and they’re obviously quite significant in number. And and we know what the system is we have. And Congress looked at that system, right, and didn’t say no to business methods patents, didn’t say no to software patents, instead said the solution to this problem is to get it out of the judicial process and create an administrative process, but leave the substantive standards intact.

So my suggestion to you would be follow that same advice, a liberal interpretation of 101 and not a caricature of the claims, analyze the claims as written, and therefore say that the solution is 102 and 103 and use the administrative process.

. . . . So on the one hand, you’ve got a problem that it seems to me Congress to some extent has said is okay and we’ve got a solution and that solution’s playing through. On the other hand, if this Court were to say much more categorically either that there’s no such thing as business method patents or adopt the Solicitor General’s interpretation, which is to say that there cannot be software unless the software somehow actually improves the computer, as opposed to software improving every other device or any other mechanism that might be out there.

What we know is that this would inherently declare and in one fell swoop hundreds of thousands of patents invalid, and the consequences of that it seems to me are utterly unknowable. And before the Court goes down that path, I would think it would think long and hard about whether isn’t that a judgment that Congress ought to make. And It seems to me in that sense you’re essentially where the Court was in Chakrabarty, where everybody was saying you’ve got to act in one way or the other or the world comes to an end, and the courts have said, we’ll apply 101 directly. . . .

MR. PERRY: That path between Scylla and Charybdis was charted in Bilski and Mayo. Bilski holds that a fundamental economic principle is an abstract idea and Mayo holds that running such a principle on a computer is, quote, “not a patentable application of that principle.” Those two propositions are sufficient to dispose of this case. If Bilski and Mayo stand, Alice’s patents fail.

The Government test is a bit difficult to fully discern and even General Verrili had some trouble explaining:

JUSTICE BREYER: I think you say a computer improvement that, in fact, leads to an improvement in harvesting cotton is an improvement through a computer of technology, so it qualifies. But then I think you were going to say, or I got this also from the brief, a computer improvement that leads to an improvement in the methods of selling bonds over the telephone is not an improvement in technology reached by the computer. Am I right about the distinction you’re making?

GENERAL VERRILLI: I don’t think there’s a yes or no answer to that question. [But,] that is generally the line we’re drawing.

JUSTICE GINSBURG: I have a question about how do you identify an abstract concept. A natural phenomenon, a mathematical formula, those are easy to identify, but there has been some confusion on what qualifies as an abstract concept.

GENERAL VERRILLI: We would define abstract an abstract concept as a claim that is not directed to a concrete innovation in technology, science, or the industrial arts. So it’s the it’s abstract in the sense that it is not a concrete innovation in the traditional realm of patent law.

Although seemingly not relevant to the present case, Alice took some pains to explain why their patent includes no software code:

MR. PHILLIPS: what we did here is what the Patent and Trademark Office encourages us to do and encourages all software patent writers to do, which is to identify the functions that you want to be provided for with the software and leave it then to the software writers, who I gather are, you know, quite capable of converting these functions into very specific code. . . .

It doesn’t actually, obviously, put in the code, but that’s what the PTO says don’t do. Don’t put in the code because nobody understands code, so but put in the functions, and we know and we know that someone skilled in the art will be able to put in the code. And if they aren’t, if they can’t do that, then it’s not enabled and that’s a 112 problem.

This discussion of functionality may foreshadow the upcoming Nautilus case. On that point, Justice Sotomayor asked whether Alice is “trying to revive the patenting of a function?” Mr. Phillips did not directly respond.

In the end, Alice Corp’s case of technological innovation is slight. Mr. Phillips agreed with Justice Kennedy that it would be “fairly easy” for a “second year college class in engineering” to draft the claimed software – giving the court additional fodder for rejecting this case merely with a string citation to Bilski, Flook, and Benson.

502 thoughts on “Unpatentable: See Bilski, Mayo, Flook, and Benson

  1. Anyone want to guess at the number of questions/points of law put to Ned that he has failed to provide direct and intellectually honest (and correct) answers or responses to ?

  2. [By way of prediction only and not forgetting we should await judgment]

    JUSTICE PRALINE: “These patents have passed on! They are no more! They have ceased to be! They are expired and gone to meet their maker! They are stiffs! Bereft of life, they rest in peace in peace! If they had not been nailed to the Supreme Court docket, they’d be pushing up the daisies! Their metabolic processes are now history! They are off the twig! They have kicked the bucket, shuffled off their mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THESE ARE EX-PATENTS!!”

    [With apologies to Monty Python]

    1. Yes, Paul, and you should add ergo our jobs have been deemed to be valueless and we are to take a pay cut to $0 per year. Since all we do is process information and we have held that processing information is worthless.

      1. On the subject of processing information, and the Prometheus decision, did you see my comment on this blog about Pharaoh and Joseph’s interpretation of his dreams? The information given by Joseph was, of course, valueless to Pharaoh, and he had no business in making Joseph chief minister and putting him in power over half his kingdom . The Bible records that!. Or perhaps that is not quite the story that the Bible tells.

  3. The misunderstandings ofvwhat comouters are and what tgey do and how they work is just breathtaking. This mess is just going to get worse as long as judges and lawyers place word games over reality.

    Every computer program is exactly a mathematical formula and nothing more. Turning a switch from off to on does not create a new machine. Period.

    1. LOL – the House/Morse fallacy firmly in the mind of a ‘techie’ who admonishes others not to misunderstand what he himself is misunderstanding.

      Tell me RMJ, can you obtain a copyright on math (and to forestall those who wish to obfuscate, the question is not on a textbook collection of math) ?

      Tell me RMJ, the difference between resistors in series and resistors in parallel.

      Software is math is simply a lie. “Turning a switch” is not the proper analogy.

        1. Marty,

          You still need to have that conversation with your attorney on the controlling law regarding the exceptions to the judicial doctrine of written matter.

          Your Attorney still faces that ethical dilemma of not having informed consent, as you remain uninformed.

        2. You also did not address what I actually stated:

          Software is math is simply a lie.

          You also did not answer the question that I actually asked: can you obtain a copyright on math (and to forestall those who wish to obfuscate, the question is not on a textbook collection of math) ?

          I notice that you refused to answer this question the first time I asked you as well.

          What’s up with that?

          1. No. Software is math. Every third instruction is a comparison, a subtraction if you will, in order to make a decision what to do next. The other instructions are about moving bits from one place to another, which can be viewed as setting X = A… So, software is math, or at least mostly math.

            The problem is that the Judicially created exceptions are silly and inappropriate. There is not reason to assert that math, or formulas, or laws of nature, or purely mental steps are not patentable subject matter. Those assertions need to be undone.

            1. Les, software is MORE than just an equation. Software uses math – but using math is not the same as math. Engineering uses math. Engineering is not math.

              Wake up son.

            2. My question is simple. Why didn’t you answer it?

              Why did you instead resort to your defensive tone?

              If each instruction in machine code is not an embodiment of a formula, e.g., :

              MOV, A, B meaning set A = B

              CMP A, B meaning set the Z flag according to the result of = A – B

              is not fairly expressed as “software is math”, then what do you consider “math” to be?

              Again, it is the silly ruling that formulas are not patentable that is the problem.

            3. My tone is not defensive. Taking the car keys away from you as you slide too far into your mantra is not defensive.

              You simply are making bad arguments that need not be made.

            4. Saying “all software is just math” is like saying “all literature is just an arrangement of letters and punctuation.” It’s true at a basic level, but totally misses the point.

            5. David Stein,

              Not only does it miss the point, it obfuscates it and is wrong in the legal sense.

              Coddling such errant views is just not helpful.

            6. Anon, you did not answer my question. You took a page out of MM’s book and you avoided the question. You are still childishly avoiding the question.

              I didn’t ask you what is not math, I asked you what math is, in your view.

              If A – B is not math, what is math?

            7. Once again Les – I did answer your question.

              Sorry but making the legal distinction is what is legally significant.

              You seem to have a a hard time grasping the terrain we operate in – you seem to want to ignore the fact that we operate in law.

              If you want a straight up definition of math, and you do not want to focus on the context of law in that definition, you will only confuse yourself.

              For example, pay attention to the treatment of “algorithm” in the Benson case. The straight up definition is explicitly NOT what the Court used.

              This is, in part, why I continue to ask people if they can obtain copyright on math. I do not ask if one can obtain copyright on a math book, as that misses the point of the legal context.

              It is hilarious that you accuse me of “pulling a Malcolm” as my driving this discussion to be in the legal context is the opposite of that.

              The strict definition of math (not in the legal context) per Merriam is
              1: the science of numbers and their operations, interrelations, combinations, generalizations, and abstractions and of space configurations and their structure, measurement, transformations, and generalizations.
              2: a branch of, operation in, or use of mathematics [the mathematics of physical chemistry].

              But as you might see in the analogies of “algorithm” and copyright, this strict definition is not what math means in the legal sense. In the legal sense, the “science” here from “1:”is not the same as the science involved in engineering and the utility aspect of using that science. Conceptually “2:” does differ and is more of the legal version involved in patent and copyright protection. But your wanting to blunder through this without the nuanced understanding of the legal context will only create more confusion for those that may understand the technical world, but are clueless as to the legal world.

              Understanding the context and hewing to that context is not in any way Malcolm-like.

          2. Maybe now that you have written that rather lengthy explanation as to why you wont answer the question, “What is math”, you will stop saying that you have answered it.

            1. LOL – Yet again you are wrong Les.

              You really have an aversion to recognizing that law is what controls the topic of conversation, don’t you?

        3. Martin, a program is the particular state of a machine. The programmed memory computer was invented right after WWII. Simply substituting different programs does not make a new machine. That is the fallacy.

          One can change a computer with microcoded instructions. These are like programs, but unlike them because they are part of the machine.

          As well, programs hardwired into ROM become part of the machine. But no one claims such in that way.

          Computers as part of larger apparatus or processes are patentable in context. See, Diehr and Alappat.

          Programmed computers without more are not new machines.

          1. Ned – your definition is not correct. Can you obtain copyright for a “state of a machine?”

            Your view of what creates a new machine is likewise a fallacy. Sorry, but that it the reality of this world.

            Your definition of “computer” likewise has been shown to be false.

            Lastly, your final statement of “Programmed computers without more are not new machines” is a lie.

            They are most definitely new machines. In fact and in law.

            1. Law? Hardly. Otherwise Benson is not good law. To accept Bernhart (prior to Benson) is to reject Benson. Everybody knows this. Thus the advocate of Bernhart are the resistance identified by Perry.

              As to Alappat, a holding is on the facts. The court held,

              ” Rather, claim 15 is limited to the use of a particularly claimed combination of elements performing the particularly claimed combination of calculations to transform, i.e., rasterize, digitized waveforms (data) into anti-aliased, pixel illumination data to produce a smooth waveform.

              Furthermore, the claim preamble’s recitation that the subject matter for which Alappat seeks patent protection is a rasterizer for creating a smooth waveform is not a mere field-of-use label having no significance. Indeed, the preamble specifically recites that the claimed rasterizer converts waveform data into output illumination data for a display, and the means elements recited in the body of the claim make reference not only to the inputted waveform data recited in the preamble but also to the output illumination data also recited in the preamble. Claim 15 thus defines a combination of elements constituting a machine for producing an antialiased waveform.”

              Given this holding, a programmed computer disconnected from context was not before the court. Everything they might have said on that topic is dicta.

            2. Sorry Ned – your version of Benson may be gone – but that was never the real version, was it?

              We do not so hold

              LOL

              Re Alappat: “A holding is on the facts

              You say that word (holding) but you do not appear to know what that word means.

              It is a FACT that the government made a number of challenges, each of which, if successful, would have changed the outcome of the case.

              That, my friend is what defines the holdings of a case.

              Sorry Ned, you lose.

            3. Black’s Law Dictionary:

              holding, n.
              1. A court’s determination of a matter of law pivotal to its decision; a principal drawn from such a decision.
              2. A ruling on evidence or other questions presented at trial.

              Emphasis added – you lose. On the facts of what a holding means.

              Will you finally respect the law, Ned Heller?

            4. Anon -

              It is dishonest. Those analogies, (an we noticed you did not address the loom) do not raise a useful arts issue. The removable/replaceable medium can fairly be viewed as instructions for a machine. In the case of the piano, they say move lever A to position x for a 1/16 of a second, 2/8 of a second later move lever R to position y for 1/2 second etc.

              With the Blu-ray, the instructions are similar, but refer to controlling light sources and audio signal levels.

              They are fairly viewed as instructions for the machine.

            5. Les,

              You continue to be flat out wrong – both in the fact that the analogies do cross the line between Useful Arts and non-Useful Arts, and in your lack of appreciation of the legal significance of this line-crossing.

              You continue to cry “dishonest” when your lack of appreciation paints you as plainly ignorant. Your attempts at reaching a non-law context are doomed to failure. You really do need to understand the context – the terrain – in which you operate. It is not dishonest to honestly note that you seem clueless in this regard.

            6. Anon -

              I fully understand the terrain you want to operate in is a swap of legal fictions, posturing and lies.

              The courts have proclaimed edicts without even understanding what they have said and you have grown accustomed to wallowing in that muck and you feel threatened by even a conversation imagining how nice it would be to drain the swamp. That I won’t play your game does not make me ignorant.

              Stop your childish name calling, get out of the muck and dry off, you’re all wet.

            7. You keep on plowing through those delusions you have surrounded yourself with Les.

              Calling law a “swa[m]p of lies” puts you right in that 6 category of making something up totally in your mind.

              Congrats on that.

              Hint: my basis of law is NOT just “the courts.” Do you even recognize what law is?

            1. Ned has consistently refused to explain how ‘oldbox’ without change “magically” obtains a new functionality not present prior to the change.

              Simple questions that go to the heart of the software patent eligibility issue – watch the anti’s run away.

            2. Ned’s answer would likely be that what is changed is the work piece.

              While I believe this is all semantics and that a programmed computer is fairly construed to be a new machine, and patent eligible, this other point of view is a fair one.

              The argument that A Blu-Ray player does not become a new machine because you removed a Star Wars disk and inserted a Gravity disk, is a fair one.

              Equally fair however, is the assertion that the Blu-Ray player can be first considered a Star Wars display device and modifying the components so that it becomes instead a Gravity display device makes a new machine.

              Again, the problem is the silly court rulings that are treated with so much deference. They should be called out for the result driven fraudulent nonsense they were and we should correct them with new, mature rulings and/or legislation.

            3. Les,

              You are off into the weeds again.

              You cannot venture into the non-Useful Arts to make a legal argument in the Useful Arts.

              Being wrong is no way to bolster your larger view against the Judiciary writing law. You simply do not have to go there.

              Don’t.

            4. I’m not in the weeds you are in a swap of dishonesty.

              If you don’t like the blu-ray player analogy, then replace it with the player piano analogy or the loom analogy.

              It is fair to say replacing the configuring component for the loom does not create a new machine.

              It is also fair to say replacing the configuring component for the loom does create a new machine.

            5. Les,

              There is nothing at all dishonest by recognizing the legal distinction of the Useful Arts.

              Piano suffers the same fate – as does an ornamental pattern on a loom.

              You really need to recognize the legal terrain here.

            6. Anon -

              It is dishonest. Those analogies, (an we noticed you did not address the loom) do not raise a useful arts issue. The removable/replaceable medium can fairly be viewed as instructions for a machine. In the case of the piano, they say move lever A to position x for a 1/16 of a second, 2/8 of a second later move lever R to position y for 1/2 second etc.

              With the Blu-ray, the instructions are similar, but refer to controlling light sources and audio signal levels.

              They are fairly viewed as instructions for the machine.

            7. Les,

              Doubling down on your posts in error only makes you twice as wrong.

              Les,

              You continue to be flat out wrong – both in the fact that the analogies do cross the line between Useful Arts and non-Useful Arts, and in your lack of appreciation of the legal significance of this line-crossing.

              You continue to cry “dishonest” when your lack of appreciation paints you as plainly ignorant. Your attempts at reaching a non-law context are doomed to failure. You really do need to understand the context – the terrain – in which you operate. It is not dishonest to honestly note that you seem clueless in this regard.

            8. Your childish name calling and ignorant assertions do not make you right.

              You shouldn’t be intellectually dishonest just because the courts have set up an untenable house of cards.

              The courts are wrong. Don’t make matters worse with legal posturing to warp reality to fit through the door of that house of cards.

              Its time to say, the judicial exceptions result in the clearly ridiculous result of classifying processes implemented through software and/or computers to be unpatentable, for no good reason. Your rulings are absurd and must be undone.

              DVDs, CDs, Blu-Ray disks, Xbox game discs are all fairly construed to contain instructions for a machine.

              They are also fairly construed as machine components that change the machine, improve the machine or create a new machine…. This is simply a matter of point of view. There is no right or wrong here.

              Enough with both sides asserting legal fictions. Nothing will ever get solved that way.

            9. Your childish name calling and ignorant assertions do not make you right.

              Right back at you Les – especially the ‘dishonest’ comment given your lack of legal appreciation.

              Once again, there is no intellectual dishonesty in noting that you are operating in the legal world.

              If it helps you at all, you may want to consider refining your understanding of “math” and realize that according to your view some math is patent eligible, while some other math is not. It might help you to think in your vocabulary that basic math is not patent eligible, but that applied math is. In this way, you can be “honest” and treat things like engineering differently than things like the whole numbers.

              Does that help you?

              As to your continued desire to not recognize the difference between Useful Arts and non-Useful Arts, sorry Les, but there very much is a Right and Wrong on that difference. That is simply based on the Constitution. There is no “childish name calling and ignorant assertions” coming from me pointing out this basic fact of law to you. You continue to ignore this basic fact of law at your peril. As I have correctly and objectively stated: you are trying to ignore the legal context in which you are operating.

            10. Providing instructions for a machine falls under the useful arts.

              As I said:

              “DVDs, CDs, Blu-Ray disks, Xbox game discs are all fairly construed to contain instructions for a machine.

              They are also fairly construed as machine components that change the machine, improve the machine or create a new machine…. This is simply a matter of point of view. There is no right or wrong here.

              Enough with both sides asserting legal fictions. Nothing will ever get solved that way.”

              With which part of that, if any, are you foolish enough to disagree?

            11. Providing instructions for a machine falls under the useful arts.

              Clearly, that is not always true.

              Beethoven provided instructions that can be now be provided for a machine. His music played on a machine does not fall under the Useful Arts.

              Put.
              The.
              Shovel.
              Down.

            12. Les, a computer with new microinstructions, or new firmware is an improved computer.

              But simply putting a program into a computer’s program memory does not create a new machine. Program memory is reprogrammable, erasable, non permanent, volatile, evanescent. Programs exist there only while they are executed. They do not change the computer hardware. Programming a computer is the way one USES a computer.

              Read Benson if you need more on this point. This is what the Supreme Court said there, and this is part of its holding.

              From the real point of view, to the legal point of view, programming a computer does not create a new machine. Just jumping up and down and saying so until some parent slaps your face and urges you to stop acting like a spoiled brat should not be required of mature adults, let alone lawyers.

              The issue of programmed computers being eligible was addressed in Benson. Just read Rich’s opinion below to see what was reversed. Benson is the law, not Bernhart.

              Moreover, the 101 case prior to Bilski that does not stand reversed is Alappat. The statement in Alappat that a programmed computer is a new machine is dicta.

            13. Program memory is reprogrammable, erasable, non permanent, volatile, evanescent. Programs exist there only while they are executed. They do not change the computer hardware. Programming a computer is the way one USES a computer.

              Wrong on may levels Ned.

              - while program memory may be reprogrammable – that has nothing at all to do with having a new machine.

              - you have consistently run away when I have asked you to provide the proper legal citations for your extra-statutory additions when you attempt to distinguish (which you cannot in any legally meaningful manner) between software and firmware.

              - your re-defining of “use” to include changing a machine is not only not accepted, it is bogus and violates Morse. You cannot define something to include all future changes and improvements.

              If you had not made such a habit of running away from the points that I present to you, you would have come to this realization long, long , long ago.

            14. “- your re-defining of “use” to include changing a machine is not only not accepted, it is bogus and violates Morse. You cannot define something to include all future changes and improvements.”

              Right because you have to “redefine” “use” before a person can say “I use the baseball bat to crack anon over his dumbas head so hard that it shatters to shut him up” (product) or “I use the computer to send my grandma a birthday present” (machine) or “I use the accordian to play a song or kill anon’s pet hamster” (machine) or “I use x to do y” (where y is any function that changes x). Right? Right? Gotta redefine the word in order to use it in such a situation.

            15. Gee 6, why the violent flare-up?

              Silly 6, there is an easier – a much easier reason.

              When you use it the way you that do, you do this little thing called inventing.

              I hear they hand out patents for that type of thing. You know, inventing. Creating something that that poor little ‘oldbox’ could not do before you changed it.

              Change – what a concept.

            16. Ned

              The ruling in GOTTSCHALK v. BENSON was ridiculous.

              A method for converting from binary coded decimal to binary is not a method because a patented claim to such a method would block anyone from using the method.

              First -OMG! ANY claim blocks anyone from using the claimed method.

              Second – That isn’t how one determines if something is a method or not!

              Third – Even if who gets blocked from what were relevant, which it is not, it didn’t block anyone from converting BCD to binary. It only blocked anyone from using the claimed method. Everyone would have still been free to use the prior art methods.

              So…. please don’t cite the nonsense in Benson to me.

            17. Les, Flook clarified that Benson was about math, and it was excluded because it was, like a law of nature, a scientific truth and therefor not really new under 101 though recently discovered. See, footnote 15 of Flook.

              Your post reflects the confusing nature of Benson itself. But Flook did clarify it.

            18. Ned, as did Diehr further constrain both Benson and Flook – see Bilski.

              I also note that your continued reliance on a footnote indicates that you still have not accounted for the other material from that decision that I have provided to you.

              Still waiting for you to stop running away…

            19. Ned –

              The ruling in Flook is equally absurd. Especially when reviewed in the same sitting as Diehr. In Flook the wires were connected to an alarm. In Diehr, the wires were connected to an oven door actuator. In Diehr, the claims were deemed to be a process, in Flook the claims were not deemed to be a process.

              If you took the wires off the door actuator and instead powered an alarm at the point you would have otherwise opened the door, then the claims do not recite a process?

              NONSENSE!

              By the way, were any of the FFT claims I posted acceptable for your purpose?

            20. Yes it does, just like any DVD or CD in the argument in my earlier post.

              A CD can be viewed as a set of instruction for a machine to control a circuit to provide particular voltages to a particular point at respective particular points in time relative to a point in time the process is started.

            21. Les, all that was claimed in Flook was updating an alarm limit. That was a number, as was noted by the Court.

              The difference between Flook and Diehr is that Diehr actually used the updated number to do something physical.

            22. Ned, you did not give an answer as to whether you are willing to kiss your ‘Point Of Novelty’ goodbye.

              (you are doing that running away thing again)

            23. …and should I point out that your own PON view and Diehr do not survive your own view of Prometheus which itself stated that Diehr was most on point and further stated that it (Prometheus) was not changing any of the precedents?

              hmm, why is it that you have never answered my question to you about the PON of Diehr? Could it be (gasp) like most all the other run-aways, that you would be faced with admitting that anon is right?

              LOL – the silence screams volumes.

            24. Ned -

              If the alarm limit was updated, that means an alarm was sounded when the alarm limit was met. Hence something was done with it…as if that should matter..

              In Diehr a number was updated and when that the associated parameter value was reached the oven door was opened.

              If opening the door or sounding the alarm are not examples of insignificant post solution activity, I don’t know what is.

              By the way, in both cases, the updated values were values that were transformed from incorrect values to correct values. The values were things. “Things” are encompassed by the word “article”. Accordingly, both Flook and Diehr transform an article and meet the transformation leg of the machine or transformation test (as if that were a legitimate requirement or even clue).

            25. Les, you have a point about the alarm, but the end use in Flook was so general as to be not a claim on a specific use, but a claim on the algorithm.

              Diehr was a claim to a specific process. Perhaps that is the most important difference.

            26. the end use in Flook was so general as to be not a claim on a specific use

              You appear to be injecting a 112 breadth/enablement concern back into a 101 discussion, Ned.

              If I claim a hammer, perfectly structurally claimed, is matters not what ‘use’ that hammer is put to, does it? You do not seem to have a problem there with any type of “so general,” as ANY general use – no matter how unforeseen – matters not to the claim.

              It is more than apparent that what is really going on is just more of an age-gone-past bias against any inkling of a method claim. Method claims are on equal footing with the hard-goods claims. Method claims are not limited as being a subset of getting to a hard goods item. That, my dear Ned, is the take away from the fact that MoT is only a clue and not a legal requirement.

            27. anon,

              1. Do you have a better explanation as to why Flook lost and Diehr won on 101?

              2. The SC defined process in Corning v. Burden and in Cochrane v. Deener. Why are these definitions not binding the Supreme Court?

              Dicta?

            28. 1. Do you have a better explanation as to why Flook lost and Diehr won on 101?

              Yes – the anti-position as carried by Douglas/Stevens lost. The Court was beginning to see just how ridiculous its thoughts were.

              Sort of like Breyer squirming for a way out in the Alice oral arguments…

              2. – the definition of process binding to the Court is NOT what the Court stated in those cases but what Congress wrote.

              Again – you seem to lack the incredibly important understanding that the constitution of the United States did not give patent law writing power to the judiciary.

              Come back to this reality, please.

        4. Yes Martin, you can get a patent for a process. Which, I suppose, can be considered to be a set of instructions for doing something. For example, you can get a patent for a method for making a new drug, or even a new way of making an old drug.

          Likewise, you can get a patent for a new way to calculate an FFT, or a new way to convert spoken words into text.

          1. The process still has to have some non-abstract element to complete- the MoT “clue” or some tangible change in the world. It’s not infringing to sell written descriptions of the process- you have to actually make something and sell it using the process to infringe.

            Am I missing something there?

            1. Martin, I don’t know if you are missing something or not.

              However, you are correct, to infringe a method claim, you have to perform the claimed method.

          2. Les, new way of calculating a FFT?

            Please give us an example claim. The notion that math is eligible subject matter was put to rest a very long time ago, Les. If you say this, though, I suspect the PTO is actually issuing such patents in violation of the Supreme Court. I wonder just how they can get away with that?

            Anyway, give us an example.

            1. From US 8510362 B2

              10. A variable fast Fourier transform method using an apparatus for performing fast Fourier transform (FFT) on n-point input data (n is a specific number) or 2n-point input data, comprising:
              determining whether the n-point input data or the 2n-point input data is received;
              when determined that the n-point input data is received, performing the fast Fourier transform using a twiddle factor for the n-point input data to generate a first output; and
              when determined that the 2n-point input data is received, performing the fast Fourier transform using a twiddle factor for the 2n-point input data to generate a second output.

              link to google.com

              See also the 1,550,000 hits from a Google/patents search using the search terms : method fast fourier transform

              link to google.com

            2. I see now that that claim mentioned an apparatus. In case you think that doesn’t count, here’s one without a machine:

              US 6938064 B1

              1. A method of calculating a fast Fourier transform or an inverse fast Fourier transform of a digital signal defined by a series of N real starting samples x(n), with N a power of two and n ε [0 . . . N−1], the method comprising the steps of:
              transforming input samples into output samples in a first transformation step;
              transforming input samples into output samples in at least one successive transformation step to the first transformation step; and
              storing the input samples and output samples of each transformation step in a storage memory;
              wherein each of the transformation steps is performed by means of a single set of butterfly circuits with several inputs and several outputs, the operating mode of the set of butterfly circuits modified selectively in each transformation step, a series of N output samples y(n) representative of the fast Fourier transform or the inverse fast Fourier transform of the output samples x(n) being provided in a last transformation step;
              wherein output samples y(n) are real;
              wherein output samples of a butterfly circuit replace the corresponding input samples of the same rank in the storage memory, so that, if the starting samples x(n) processed in the first transformation step are classified in bit-reversed order of their index n, output samples y(n) are provided in the last transformation step in ascending order of index n and are defined by the following relations:

              y(0)=Re[X(0)],

              y(n)=Re[X((n+1)/2] for n being odd and different from N−1,

              y(n)=Im[X(n/2)] for n being even and different from 0, and

              y(N−1)=Re[X (N/2)]; and
              wherein samples X (n), with n ε [0 . . . N−1], designate complex samples of the series corresponding to the fast or inverse fast Fourier transform of the starting samples series x(n).

              link to google.com

            3. Oooops, that one mentioned a memory…

              Here is one that is hardware free, although a register value is mentioned:

              US 7962719 B2

              10. A method of generating updated Fast Fourier Transform (FFT) coefficients with a butterfly, the method comprising the steps of:
              (a) reading a twiddle factor;
              (b) reading a first A coefficient and a first B coefficient for a current stage, wherein the twiddle factor, the first A coefficient, and the first B coefficient are complex-valued;
              (c) updating a product register value including the step of multiplying the first B coefficient with the twiddle factor;
              (d) deriving a first pair of updated FFT coefficients for a subsequent stage with add/subtract operations based on the first A coefficient, first B coefficient, and the product register value; and
              (e) repeating steps (a) through (d) for one or more subsequent A coefficients and one or more subsequent B coefficients corresponding to the twiddle factor to provide one or more subsequent updated FFT coefficients, wherein the method repeats the steps in a manner so as to provide each pair of FFT coefficients in one clock cycle.

              link to google.com

            4. Les, about your post 26.2.1.4.2.6, and patent 6938064, the claim appears to be claiming hardware functionally. This is quite different, I think, from simply reciting an algorithm and then saying “compute it.”

            5. “Oooops, that one mentioned a memory…”

              In other words applicants and the PTO have been making a desperate attempt to tie math to a machine to make it patent eligible.

            6. Les, regarding 7962719, it does appear to be claiming an algorithm, but the preamble limitation to a butterfly circuit might suggest it is also is trying to claim a butterfly circuit. It really depends on what the disclosure is whether the limitation to a butterfly is sufficient. It looks like we have another Alappat situation where preamble might save the claim.

            7. Ned -

              I see no mention of a circuit in the preamble. There is a butterfly, but no circuit. I believe a butterfly refers to a back and fourth order of doing things, and is given the name due to the visual impression a diagram of the process gives.

            8. “6 – you still don’t understand what is being discussed.”

              Well then, be so kind as to tell me. It looked to me like people were patenting mathematical methods of doing a fast fourier transform by tying them to a compooter.

    2. Renee, read Application of Bernhart for the source of the heresy. That case actually stated that a program “rewired” the computer making it a new machine. Subsequent courts have relied on it to declare a programmed computer new.

      Of course, every one of these courts and every patent attorney knows what the truth is. But they are liars because they have a self interest, one way or another. They want to patent software and business methods. They want to extend patentable subject matter to anything and everything that software can do. And, as we see in this case, they want to patent functions, leaving the software to others to write.

      You have no idea the mendacity of these folks. It is beyond belief.

      1. But they are liars

        LOL – remember Momma’s phrase: “when you point your finger at someone, three fingers are pointing back at you” ?

        In this case, Ned is clearly three times the liar
        1) what the actual truth is (from a factual standpoint)
        2) what the actual truth is (from a legal standpoint)
        3) what the actual truth is (from a policy standpoint)

        Mendacity? LOL, stop running away Ned.

        1. Let’s face it anon, you and your sort refuse to discuss the facts in Alappat, and continue to quote dicta as holding.

          1. Let’s face it Ned, you and your sort refuse to address any of the points that I have presented.

            Tell me, are you still struggling to understand the Nazomi case? How is it possible that you still do not understand that case?

        2. “In this case, Ned is clearly three times the liar
          1) what the actual truth is (from a factual standpoint)
          2) what the actual truth is (from a legal standpoint)
          3) what the actual truth is (from a policy standpoint)”

          Nice list.

            1. Mhmmm, sure I do, just like I “misunderstand” the reason for all the other thousands of lists you generate, your preoccupation with perfect etc. etc. Keep on making lists my OCPD good friend.

            2. LOL – you imply that you understand, and yet you continue not understanding.

              Did you check out your preoccupation with projections with your doc yet?

      2. Bernhart 417 F.2d 1395 was written by Lane – not Rich. Tell me again (or for the first time) Ned – what was the “Point of Novelty” in Diehr?

        Compare Diehr to this ‘heresy’ of Bernhart.

        Looking first at the apparatus claims, we see no recitation therein of mental steps, nor of any element requiring or even permitting the incorporation of human faculties in the apparatus.” – Ned, repeat after me: anthropomorphication – machines really do not think. See also Prater.

      3. Ned,

        How do you explain Lourie’s opinion? His crew wanted to repudiate Alappat and couldn’t due to the lack of a majority. The effect of their opinion would have been to greatly curtail the patentability of software. They could easily have their wish by disputing the factual accuracy of Alappat. Then the Justices wouldn’t have to scratch their head with what to do about the “individualized circuitry” mentioned in Rader’s opinion. But Lourie and the crew didn’t do that. The argued against Alappat on the ground of compliance with Supreme Court precedents.

        Could it be that the judges genuinely believe the “individualized circuitry” theory is factually correct and the patent attorneys just go with their holdings without challenging them with the truth? This is the simplest explanation IMHO.

        1. Given your leanings towards one of the particular briefs, your version of “the truth” is highly questionable paul.

          This is not your art field, is it?

          1. My leanings toward any brief are all in your imagination.

            Gees, I can’t mention a brief in a comment without being told I lean toward it. Please don’t read more in a comment than what is actually written.

        2. Could it be that the judges genuinely believe the “individualized circuitry” theory is factually correct

          Nobody believes that horsesh*t.

          1. Does that includes the members of the Supreme Court? They are not engineers. How would they know this is false? Nobody told them, at least not in any of the briefs.

        3. Paul, for pity’s sake, do you even know what Alappat HELD. That case was entirely consistent with Diehr.

          Look to the facts. The claim was MPF, and the disclosure was entirely hardware – a circuit in a graphics unit that had a name: a rasterizer. The claim was further limed to this same structure through its preamble. The machine being claimed was a rasterizer of a graphics unit of a display.

          In no way is this different from Diehr.

          1. There is more than this. There was also a USPTO argument that the claim was invalid because it would read on a programmed computer under the doctrine of equivalence. Alappat admitted that his claim reads on such a computer. The Federal Circuit held that such equivalence does not render the claim invalid. See the case at 1545.

            See also WMS Gaming, Inc. v. International Game Technology, 184 F. 3d 1339 at 1349

            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.

            You are saying the Federal Circuit would put something like this in a decision without believing that it is true?

            1. “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.”

              After having read that for probably the millionth time now it still strikes me as somewhat funny that they belieb that an “electrical pathway” is some physical thing that causes x to perform the desired function.

              “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”

              It’s even more funny that they think that it is the instructions that “electrically change” the computer by creating “electrical paths” within the device. The way they wrote it there it does call into question as to whether or not any of the even understand w t f is going on. At all.

            2. Not only “true” paul, but Ned neglects to note that such is a HOLDING of the case – had the government prevailed on their argument, the outcome of the case would have been different.

            3. Paul, Alappat admitted that it read on a programmed computer in context of the claim to a rasterizer of a graphics unit of a display.

              That is what the Court HELD. Read the opinion.

              The court went on to discuss “we have held” a programmed machine out of context is eligible. But that was DICTA because the case did not involve a programmed computer out of context of a rasterizer of a graphics unit for a display.

              Next WMS Gaming: Any case with Rader in it is going to be wrong on this issue. He firmly believes that a programmed computer IS statutory. You need to be very careful of the reliability of every case that Rader pens or is on the panel. He is an advocate and has an agenda, and will not follow precedent that he disagrees with.

              But more to the point, WMS Gaming was not about eligibility. It’s cites to Alappat could be read two ways. All in all, this case is another Raderism.

            4. Ned, Alappat admitted that it read on a programmed computer in context of the claim to a rasterizer of a graphics unit of a display.

              I see the word “context” there. This is not the same as “structure”. Diehr held that one could use a mathematical algorithm within a patent-eligible structure and this structure would remain patent eligible. What is the structure in Alappat? As I read the claim it is only the rasterizer, this is the circuit for computing the anti-aliasing function. The display is not an element of the claimed structure.

              The Alappat claim add to the mathematical calculation a limitation on the meaning of the data. It must be information about the pixels on the display and the calculation must be an antialiasing function that makes the appearance of the lines smooth to the eye. But nowhere the actual display and the actual pixels are claimed. They are only referred to in limitations about the meaning of the data. This is very different from Diehr where the actual curing of the rubber is claimed.

              Any case with Rader in it is going to be wrong on this issue.

              I agree. I also think he genuinely believes his “individualized circuitry” pet theory as set forth in WMS Gaming. This is why he is systematically wrong.

            5. paul,

              Maybe you can get Ned to tell you what the “Point of Novelty” in Diehr was. He (when convenient for him) sometimes likes to think that such is important.

              hint: it was not that rubber was cured.

            6. Paul, Look at Fig. 3 of the patent. That is what was claim. It is a circuit of a graphics unit. It is shown as one circuit of the larger unit.

              The claim itself has a preamble that links the MPF elements into this graphic unit. The Court construed to claim to included the subject matter of the preamble. Thus the claims was not to a disembodied calculation, but to a piece of hardware in a graphics unit.

              Substitute a programmed computer to do the calculations, one still has inputs and output to the graphics unit for the display. That is what the court held the programmed computer aspect to be — part of the larger unit. Just like Diehr.

              The rest is an aside. Anon and others do not get this and for a reason.

            7. Anon and others do not get this

              Ned – you are going to be awfully lonely if you think that your view of ‘holding’ is better than the Black’s Law dictionary definition that I gave you, and that fits my view.

              Come back to this reality soon.

            8. Anon, the holding is always “necessary.”

              Given the holding of the court that the claim was limited to a rasterizer of a graphics unit for a display, a disembodied programmed computer sans context was not even involved in Alappat.

            9. Ned,

              Read my posts and see why you are flailing badly here.

              The government made an argument that made the response you claim as dicta necessary and makes it a holding rather than dicta.

              Have you ever heard of Black’s Law Dictionary? You seem unfamiliar with it – even after I posted the definition of holding for you and noted how my point matches that definition.

            10. Ned, here is the text of the claim no 15 which was the only independent claim at issue:

              A rasterizer for converting vector list data representing sample magnitudes of an input waveform into anti-aliased pixel illumination intensity data to be displayed on a display means comprising:

              (a) means for determining the vertical distance between the endpoints of each of the vectors in the data list;

              (b) means for determining the elevation of a row of pixels that is spanned by the vector;

              (c) means for normalizing the vertical distance and elevation; and

              (d) means for outputting illumination intensity data as a predetermined function of the normalized vertical distance and elevation.

              The claim is clearly directed to a rasterizer. The display is not a physical element of the rasterizer. It is not mentioned in the itemized MPF elements (a) through (d).

              The preamble states a functional limitation on the rasterizer, not a structural limitation. It says “anti-aliased pixel illumination intensity data to be displayed on a display means”. This is a clause limiting the data processed by the rasterizer. The fact that the data will eventually be displayed on a display means doesn’t make the display a part of the rasterizer.

              When I read this claim I think of MM’s claim on an adjustable seat that makes it more comfortable to people whose name begin by “J”. The first letter of the name may be mentioned in the claim but it is not a part of the seat.

            11. Paul, a rasterizer is a component of a graphics unit. Look at the specification for what it is. Here is the holding of the court on what was claimed:

              “Rather, claim 15 is limited to the use of a particularly claimed combination of elements performing the particularly claimed combination of calculations to transform, i.e., rasterize, digitized waveforms (data) into anti-aliased, pixel illumination data to produce a smooth waveform.

              Furthermore, the claim preamble’s recitation that the subject matter for which Alappat seeks patent protection is a rasterizer for creating a smooth waveform is not a mere field-of-use label having no significance. Indeed, the preamble specifically recites that the claimed rasterizer converts waveform data into output illumination data for a display, and the means elements recited in the body of the claim make reference not only to the inputted waveform data recited in the preamble but also to the output illumination data also recited in the preamble. Claim 15 thus defines a combination of elements constituting a machine for producing an antialiased waveform.”

            12. Ned, you talk about context. I talk about structure. Diehr says using an algorithm in a larger structure does not render this structure ineligible. It did not say using a computing device in a larger context makes the computing device eligible. This is why I insist on structure and disregard context.

            13. Paul, I think the real issue in Alappat was the weight to be given the preamble.

              It was given weight, such that the claim as a whole was construed to be limited to a rasterizer (of a graphics unit for a display). No programmed computer was claimed except in context of the rasterizer machine.

            14. Ned, I think the real issue in Alappat was the weight to be given the preamble.

              I don’t see it that way. The issue was whether a mathematical formula/algorithm was preempted. They reached their answer by observing a machine structure is claimed. This structure is not in the preamble. It is brought from the specification through the MPF clauses. And also they mentioned that the limitations on the meaning of data were not insignificant field of use limitations. These limitations are not just in the preamble. They are also the functions in the MPF clauses.

              The context is there to explain what the functions are. But context is not what allows a claim to pass Diehr. Structure is.

              There was a second argument that the claim would be invalid because they read on a programmed computer. They held, as an answer to this second question of law, that it did not matter because programming a computer makes a specific circuit structure. You have to keep in mind there are more than one holding in Alappat. You focus on the first one but the second one is there too.

            15. anon, regarding 26.3.3.3.2.6, “programmed to carry out the invention” does not mean that the mathematics being calculated was the invention as you think. The claim as a whole was to a rasterizer, a larger machine.

              You constantly remind me that you cannot view the invention solely on the novel feature, the new mathematical algorithm. The claim as a whole was to a rasterizer, which is a specific part of a graphics unit of a display. The corresponding structure is hardware of such a graphic unit. The computer substitutes to replace that hardware. But it still is part of a graphics unit of a display.

            16. You constantly remind me that you cannot view the invention solely on the novel feature, the new mathematical algorithm.

              LOL – Are you saying that you are ready to retire your canard of Point of Novelty, Ned?

              But to “The corresponding structure is hardware of such a graphic unit.” – you still miss the holding. That holding is that software is equivalent to firmware is equivalent to hardware.

              You simply have to face the music that the government made that an issue to be decided at law, and that the court held as I have long been telling you.

              Ignore Black Letter Law and Black’s Law Dictionary only at the peril of your own credibility.

          2. 6: The way they wrote it there it does call into question as to whether or not any of the even understand w t f is going on. At all.

            This is precisely my point.

            Way back in 1950′s and 1960′s there were computers that were programmed by manually plugging wires in a plug board. The judges sitting on the CCPA in 1969 when Prater and Bernhart were decided must have seen this type of computers in some of their cases. It is quite possible that in their eagerness to patent software these judges genuinely overlooked the fundamental difference between a stored program computer and a plug board. They may have genuinely thought that instructions are an automation of the process of plugging wires for purposes of creating a new circuit. Then, over time, when a new judge joined the court, the seniors trained him in seeing the computer this way. All the decisions read as if this is what happened.

            I am don’t believe the judges are liars. They have no training in computer science and they learn mostly from what the parties and amicus tell them in their briefs. If nobody tell them the difference between a plug board and a stored program computer they will keep believing the technologies are similar.

            1. Paul, the computers with wires were the very first ones without program memory. WWII.

              But the ’60s, we had IBM 360′s, and computers from a host of other companies like CDC, Honeywell, etc. All program memory from the very beginning was reprogrammable, that was the whole point.

            2. Anon, re 26.3.3.3.1.17,

              Paul is Paul Cole?

              1. MPF read on hardware.
              2. MPF equivalent of a programmed computer is limited by preamble.

              Two holdings.

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

            4. anon, regarding the quote at 26.3.3.3.2.4 and “to carry out the claimed invention…”, what, pray tell, did the court just previously HOLD to BE the claimed invention?

              Let me give you a clue. “Rasterizer.”

            5. hat, pray tell, did the court just previously

              And again Ned you miss the critical point of what the court in Alappat immediately held – read on a general purpose computer programmed to.

              Go back (again? for the first time?) and re-read the definition from Black’s Law and see that I am correct.

              Face it Ned – you have no viable alternative but to say “anon is right.”

            6. Fact: the government made this a critical issue in its case.
              Fact: the court defeated the government’s position.
              Fact: Black Letter Law on what a holding means.

              You cannot ignore these facts Ned.

              Not without destroying your credibility.

            7. Ned,

              Here’s an idea.

              Since you are apparently still struggling to understand the Nazomi case, why don’t you try to put your agenda to the side for one moment and entertain the thought that I am correct in my view of the holding from the en banc decision of Alappat.

              With an acceptance of the fact that software is equivalent to firmware and is equivalent to hardware, take a fresh view of that case.

              Without you clinging (desperately) to your agenda, let me know if you, with your vast knowledge of the software arts, still struggle when you accept as correct what I have long told you – exercise your mind and do this for argument’s sake.

              Once you do this, then revisit both Benson and Flook and those parts of each decision that you consistently refuse to acknowledge. With this new insight, what do you make of the quotes that I have presented to you?

              Once you do this, then revisit the controlling law as to the exceptions to the judicial doctrine of printed matter, and see how software is merely a manufacture and machine component.

              Once you do this, and to draw the circle complete, return again to the Grand Hall experiment. Note the solid parallel to the Nazomi case. Note the inevitable conclusion.

              If you dare.

            8. anon, regarding 26.3.3.3.2.9, just to make it clear, in addition to the to do you quote not being the law, the dicta that a programmed computer is a special-purpose machine and therefore eligible under section 101 regardless of what it is programmed to do and regardless of context, then it is inconsistent with Benson and is not the law for that reason.

              It is a shame that the patent office feels bound by the Alappat dicta and will issue claims to programmed computers and/or CRMs once a claim has been sprinkled with appropriate magic dust and words.

            9. “such programming creates a new machine”

              Well why didn’t anyone (including rader) tell the USSC in Alice? I mean, surely if it’s as set in stone as you think it is then it should win the case np right? Right?

            10. 6, “such programming creates a new machine”

              Well why didn’t anyone (including rader) tell the USSC in Alice? I mean, surely if it’s as set in stone as you think it is then it should win the case np right? Right?

              6, I think even judge Rader knows that Alappat did not hold that a programmed computer was a new machine. So rather than rely on Alappat as “authority,” they are still trying to persuade the majority of the Federal Circuit (and the Supreme Court) that programmed computers are eligible per se.

              This is one of the reasons that the AIPLA was such a pathetic effort in that it actually cited Alappat as authority for this proposition. It is apparent, that no judge on the Federal Circuit believes that Alappat is controlling authority for this proposition.

            11. Ned, in reply to your allegation at 26.3.3.3.2.11 that Benson is violated I reply that it is only your version of Benson that is violated. The actual text of Benson is not violated. Repeat after me: “We do not so hold

              Your incessantly wrong repeating that the legal point made by the court in order for the government not to prevail on one of its prongs as “dicta,” will not change that holding to dicta. Time for you to grow up just a little.

              programmed computers are eligible per se.

              Again with the falalcy of ‘per se’…?

              I have addressed this repeatedly Ned. No one (except maybe for the errant Les) is saying ‘per se.’ The category aspect of 101 is not the only thing to be accounted for. One still needs to account for the utility aspect.

              Read on this thread my reply to Les concerning Beethoven’s instruction set.

              And please do not try to inject more confusion with any such ‘per se’ nonsense.

            12. Ned your comment at 26.3.3.3.2.10 ignores what I have long told you regarding the holding of the immediate case of Alappat.

              Your desperation is showing by the dust-kicking that you are doing.

              You continue to ignore Black Letter Law and Black’s Law Dictionary.

              There is no escape for you from the inevitable conclusion that anon is right.

            13. No 6, you are still showing a lack of understanding.

              It appears that you are also suffering from an obsessive delusion disorder as well. You may want to add that to the list [ ;-) ] of yours of things to discuss with your doctor.

          3. Anon, it is remarkable, truly remarkable just how clueless you are, anon. Really.

            You idea of a holding is so far removed from reality as to be laughable. You cannot be a lawyer.

            1. You idea of a holding is so far removed from reality as to be laughable. You cannot be a lawyer.

              Um, sure Ned – my idea is only matched by what is in Black’s Law Dictionary.

              But please, continue to think that I am the one off base here.

              (in all seriousness, you should visit your doctor. I am not sure if you are suffering from Alzheimers or some other form of dementia, but you are clearly losing it if you want to disagree with the definition of holding that I provided)

            2. Ned,

              Are you going to accuse Paul Cole of the same thing now that he has said (see the last paragraph of 26.3.3.3.1.17) what I have always said?

              Stop.
              Running.
              Away.

        4. All cites to the programmed machine is a new machine cite to Bernhart, which was dicta.

          Rader himself cites to his concurrence in Alappat, and does not cite to its holding.

          Dicta upon Dicta upon Dicta.

          State Street Bank is the first case of the recent era that actually held that a programmed machine was eligible. Now that case is the very one rebuked by the Supreme Court with the highest opprobrium. Congress has rebuked it. The case has be overruled and stands in infamy.

          1. Rader himself cites to his concurrence in Alappat, and does not cite to its holding.

            Yes, I have noticed that. Neither Alappat nor Bernhart state clearly that the new machine is “individualized circuitry”. We may find this information in WMS Gaming and this case is from 1999. Bernhart only mentions a change in memory elements.

            I think you should also take a look at Application of Prater, 415 F. 2d 1393, at 1403 n. 29:


            In one sense, a general-purpose digital computer may be regarded as but a storeroom of parts and/or electrical components. But once a program has been introduced, the general-purpose digital computer becomes a special-purpose digital computer (i. e., a specific electrical circuit with or without electro-mechanical components) which, along with the process by which it operates, may be patented subject, of course, to the requirements of novelty, utility, and non-obviousness.

            Alappat refers to Prater which predates Bernhart by a few months. These cases are from 1969.

            The notion that transistors make an individualized circuit did not show up until 1999 in WMS Gaming. It is not in Alappat, although we can find it in the concurrences.

            1. Paul, I hope you begin to see the lengths people will go, people who do not care about the truth but who have agendas, to achieve their objectives.

              Rader (and Rich) and a number of other Federal Circuit judges believed that a programmed computer was eligible, and they were fighting the Supreme Court on this since Benson. Prior to that, they overruled cases of long standing in a similar fight with the PTO.

              Rader has not given up. Bilski gave him an out and he continues his advocacy. But he is the leader of the resistance noted by Perry. Unless and until the Supreme Court come out with a clear ruling that a programmed computer is not ipso-facto statutory, Rader will simply not give up.

              If I had him on a panel against me, I would challenge him for bias.

            2. begin to see the lengths people will go, people who do not care about the truth but who have agendas, to achieve their objectives… challenge him for bias

              Nice AOOTWMD, Ned – maybe you noticed that challenging you for bias is a recurrent theme…?

              LOL – ‘maybe’ the Court cannot do what you want it to do without explicitly writing law itself – ever think of that, Ned?

              Maybe if you paid attention to those other quotes in Benson and Flook you would recognize that the Court recognizes that it cannot explicitly write patent law.

              Maybe you should seriously put your own bias on the shelf – and note that it is your own bias that still prevents you from understanding the Nazomi case (even as you profess knowing the software arts).

              Maybe it is time for you to think objectively, rationally and with intellectual honesty.

              Of course, if you did not run away constantly from the points that I present to you, you would have come to the conclusion that I present here so much sooner.

            3. “If I had him on a panel against me, I would challenge him for bias.”

              I know right? I’ve been very surprised that people don’t do that in many cases before him.

            4. “Why do you think that bias is only an issue for Federal Judges, 6?”

              I never said that it was “only an issue for Federal judges”. I will say that it is only an issue in a lawlsuit (the subject of the discussion) for judges, no matter if they’re federal or not. Re re.

            5. You see 6? You just don’t understand. Bias is a factor in any conversation.

              And it does not even have anything to do with control.

              Are you over that delusion yet, my friend?

            6. “You just don’t understand”

              No I do understand that re re. Ned’s talking about “challenge” the judge as to having him on his panel, not just “challenge” him in the conversation. Learn to context re re.

            7. 6,

              Saying you understand does not mean that you understand. It only means that you don’t understand why and what you don’t understand.

              Understand?

              The point is expressly NOT as you think it is.

          2. Ned,

            As I have discussed with you in the past, Alappat itself creates the holding because the court decision on this point was essential to defeat the government’s specific prong of a multi-prong argument – each single prong of the argument created a holding in the case.

            1. You never quote the holding which I have quoted numerous times.

              It is what I say it is. The claims was to a rasterizer, not a programmed computer.

            2. LOL – you are clearly wrong for the reasons given. The holding of a case is the court given reason why the party succeeds does in fact succeed. In Alappat the government had a multi-pronged attack, each prong of which generates a holding in the case.

              That is what a holding is.

              Sorry Ned, but you must acknowledge the law.

      4. ” That case actually stated that a program “rewired” the computer making it a new machine.”

        Who knows, back in the day “reprogramming” might literally have entailed “rewiring” the computers of old.

        1. Who knows, back in the day “reprogramming” might literally have entailed “rewiring” the computers of old.

          Depending on the model of the computer, it did.

          Link to an example. According to the wikipedia this particular device was marketed until the early 1970s. Bernhart is a case from 1969.

          1. paul,

            Do you get the fact that software is equivalent to firmware and is equivalent to hardware?

            You seem to want to jump in the weeds really quick (even as you say that the one brief you referenced was not indicative of your beliefs)…

          2. Ugh! Really, Paul, think.

            There were no integrated circuit in those days. The ALUs and the like were constructed of discrete components interconnected by wires.

            Memory was core memory, tape, drum, or disk drive. Entirely rewritable.

            Again, the whole point.

            1. I know that Ned. My point is, did the judges know the fundamental difference between the instruction cycle in a CPU and the manual wiring of a plug board?

              Or did they imagine that programmable computers include a component that is in effect a miniaturized plug board and the instructions are how you configure it? Read WMA Gaming again with this thought in your mind.

            2. paul,

              What is this ‘fundamental difference’ and how does that ‘fundamental difference’ come into play with the fact that software is equivalent to firmware and is equivalent to hardware?

              You keep on stepping softly around “what you believe.”

            3. Paul, the Supreme Court in Benson clearly knew the difference and said so.

              We all know why certain judges in the Federal Circuit say the nonsense they say. They do not really care about the facts.

              Besides, the manual wiring of the plug board changed the functions of the card reader. What was changed was whether the thing added, subtracted, compared, did function X or Y, on the data input. While this might be programming in a sense, it is not what a programmed computer is.

              A stored program computer is a different animal altogether. It was created to replace plug wiring instructions. The memory was designed and intended to be reprogrammable. The programs were read into the memory, and the computer was started to begin reading instructions from program memory. The computer used and still uses what is known as a program counter that points to the location in memory where the next instruction is. Obtaining the instruction causes the program counter to be incremented.

              But what is critical to understand, the program memory is designed specifically to be reprogrammable. The program itself changes nothing in the circuitry of the computer.

            4. the Supreme Court in Benson clearly knew the difference and said so.

              Let’s also look at what the Supreme Court said in Benson: “We do not so hold.”

              Further, if you carefully look at the terms as used and defined in Benson, they were clearly talking about a single math equation.

            5. Ned, you are clearly wrong.

              The program itself changes nothing in the circuitry of the computer. is not the proper understanding of having programmable memory.

              All that having programmable memory means is that that portion is more easily changed – changed into a new machine.

              Once again, you are trying WAY too hard to create your own special definitions, ones that only align with your Crusade – and not with reality, nor with how a person having ordinary skill in the art to which the invention pertains understands the terms.

              (and before you try to climb back on that high horse of yours and preach just how much you ‘know’ this art field, have you figured out yet why you are having so much difficulty with the Nazomi case? – here’s a hint: check your assumptions.

    3. Wood, burlap and rope are just that, wood, burlap and rope.

      The fact that they are arranged in the shape of an airplane, does not change the fact that they are wood, burlap and rope. Moreover, the shape of the airplane is just the manifestation of the abstract idea, the Bernoulli principle, which we also declare to be a law of nature.

      Therefore, an airplane is not worthy of a Patent.

    4. RMJ,

      I guess “ignorance is bliss” for you, as you’re obvious “ignorance” of technology (especially computer technology), as well as patent law is badly showing. As I’ve said to others, what you believe, think, or say here about technology (or patent law) doesn’t count for squat for me or many others who post on this blog. And please refrain from the defamatory remarks you keep making about us who know this technology and patent law far better then you do (or ever will).

    5. Renee, trust me, the Supreme Court in Benson understood what a programmed computer was and is. The people who get it entirely wrong are the judges on the CCPA and the Federal Circuit who have time and again expressed their views that software should protected by patents, not just the use of computers in machines or processes of which there really is no controversy given Diehr and Alappat.

      Rich, and Rader now, still advocate the view that a programmed computer is eligible because it is a “new” machine. That view long ago was set aside in Benson, otherwise the limitation by the claims to a computer would have decided the case.

      The people who advocate this position do so to reverse Benson.

      1. The people who got it wrong are the people who are attempting to bastardize what Benson did and did not say.

        People like Ned, who perpetually leaves out critical parts of the decision in his efforts to redefine the decision to fit his agenda.

        People like Ned, who are apparently clueless as to what ‘holding’ means, rejecting the very definition from Black’s Law dictionary.

        People like Ned, who refuse to even discuss the fact that software is a manufacture and machine component, who refuses to even acknowledge the controlling law of the exceptions to the judicial doctrine of written matter.

        Ned,

        Stop.
        Running .
        Away.

    1. Good question Lionel, but also it is good to remember the posture of the case – the claims themselves have not yet been construed by any court – see the oral argument transcript in the Philips rebuttal section at the end of the transcript.

      1. TThe reason I asked was some of the back and forth there appeared to involve the nature of the claims and I am not sure how you can have a 101 subject matter discussion without analyzing the nature of the claims, unless one is arguing that all software patents should be invalid, and I strongly disagree with that proposition.

        I would just like to look at the claims and try to see if I see a process that I believe would be patentable over a 101 objection.

        I do agree that there are a lot of bad ones.

        1. I am not sure how you can have a 101 subject matter discussion without analyzing the nature of the claims

          That does appear to be a quandary, does it not.

          unless one is arguing that all software patents should be invalid

          You appear to have found the answer to your own question.

          But read again the oral argument transcript – especially the rebuttal section at the end, remembering the posture of the case.

          As paul quips: [not forgetting we should await judgment], we should also not forget the legal setting in which that judgment takes place.

          1. Is that the explicit argument or the implicit argument that software patents should be invalid? If it’s the former, Mr. Perry wastes precious argument time addressing what the claims do or do not include. Of it’s the latter, then while full-scale construction need not be done, the text of the claims does need to be considered.

            Also, is it common practice to refer to the solicitor general as general? The references to General Verilli sort of stop me in my reading.

  4. Hmmm,

    Sage words: “The statute further directs that even the mere new use of an old machine is eligible for patenting

    (for those stuck in the incorrect view of Alappat…)

  5. We need a poll. I suggest

    1. Will Alice prevail on any claim? Yes. No.
    1.1 By claim type,
    1.1.1 System” Yes. No.
    1.1.2 Method? Yes. No.
    1,1,3 CRM? Yes. No.

    2. If Alice does not prevails, will they not prevail because of the addition of generic computer components is not enough per Mayo? Yes. No.

    3. If CLS Bank prevails, do you believe that the Court will define Abstract Idea? Yes No.

    4. Are business methods within the useful Arts? Yes No

    Me: 1. No. And no to all types. 2. Yes. 3. No. 4. No.

    1. 1. No
      1.1.1 No
      1.1.2 No
      1.1.3 No

      (And I resent that result, because I don’t think that Alice is being given a fair shake, but it seems like a foregone conclusion.)

      2. Yes

      3. No

      4. Yes

    2. 1. No, 9-0
      2. The court will not be specific enough to say exactly why.
      3. No. I laugh at the very idea.
      4. Are you asking our judgement or the court’s? The court will not address this issue, but clearly finance is not among the useful arts.

    3. 1. Yes
      1.1.1 Yes
      1.1.2 No
      1.1.3 Yes

      (And I resent that result, because I don’t think that Alice is being given a fair shake, but it seems like a foregone conclusion.) Remanded for further considerations and word from the Court in an attempt to clarify Prometheus in that just as 102/103/112 cannot take the place of 101, the reverse is also true that 101 cannot take the place of 102/103/112.

      2. No, despite the stage of the case and the stipulations of the parties, the Court will read the method claim as not requiring technology (their reasoning).

      3. No

      4. Yes

    4. Haven’t decided yet, but I am sure that it is going to be 5-4 for something. It may be a 9-0 decision with two different opinions.

      My guess so far is that this is not going to be a software defeat.

      This whole case is shameful. It evinces such ignorance of science and technology by the judges and general public that it shames us all.

    5. 1. No
      1.1.1 No
      1.1.2 No
      1.1.3 No

      2. Yes

      3. No.

      They will flesh out details on what distinguishes an abstract idea from an inventive concept (per Mayo)in hope of unlocking the Federal Circuit non decision. That will bring some degree of clarity but there will be no bright line. Alappat will be watered down but not repudiated. There will be substantial uncertainty about how to determine when Alappat can be relied on.

      4. Non

    1. Good article anon. It brings such a sharp contrast to reality vs. judge made bizzarro world thoughts. How can it be that 100′s of millions of workers are going to be displaced by machines and yet those machines are somehow not eligible for patentability?

      Another bizzarro fact is that the SCOTUS throughout its arguments seemed to regard an invention that processes information as inferior. How odd!! The justices (not one is qualified) make their living by processing information. The other oddness is this functional claiming smoke screen. Functional claim elements are fine. They mean one skilled in the art knows how to do that. Not all functional claims elements are ok. Only the ones that are enabled. Sheesh. These things are so simple. Unbelievable that APEs have gotten this far. Shameful. I guess you get to a third world country one step at a time.

        1. Do you understand the equivalence of hardware and software?

          If you really understood information processing, you’d know that the cleverness of the GPC is that it is effectively simulating hardware.

          1. Night, they are equivalent only in context — where a computer is substituting for circuits in a larger machine or process.

            Read Alappat and the underlying patent for more.

        2. LOL

          The ‘instructions’ as you would label them are manufactures and machine components, Marty.

          You might want to try to have an actual legal argument instead of your mere opinion.

          How hard is it to understand that your ‘opinion’ is meaningless in a discussion of law, really?

          1. How hard is it to understand that your ‘opinion’ is meaningless in a discussion of law, really?

            Patent Jeebus has spoken! Bow down, everybody.

            What a freakin’ t 00l.

            1. …because the Red Queen/Humpty Dumpty decrees it so.

              Maybe you can actually add something on point Malcolm.

              You know, something legal, or factual, instead of your usual head in the sand table pounding.

      1. “The other oddness is this functional claiming smoke screen. Functional claim elements are fine. They mean one skilled in the art knows how to do that. Not all functional claims elements are ok. Only the ones that are enabled.”

        A terrible misunderstanding of law the Supreme Court will soon relieve you of.

        1. Random Examiner,

          Do you have more than mere saying of a “terrible misunderstanding of law” to back up the notion that functional claim elements are so terrible, and how the Supreme Court is going to soon relieve anyone of that (since the issue is 101 and not 112)?

          Or are you simply trolling with nothing better to do?

  6. DC: “innovations that were once patent eligible will later be not eligible once the implementing-technology becomes well known”

    A better, more accurate expression:

    The mere recitation of old “implementing technology” (e.g., a computing device or a data gathering method) that by itself might be eligible for patenting (although unpatenable over the prior art) will generally not confer eligibility to otherwise ineligible subject matter (e.g., information processing steps, or information itself).

    Basic logic, folks. Let me know if examples are needed to explain the importance of this fundamental proposition. If you work at the PTO and you are still confused, you should pay really close attention this time.

    1. >>information processing steps,

      So, then all information processing according to your little world are not eligible? That is a more extreme position than anyone took at the oral hearings. You do realize that you posted that don’t you? That wasn’t your internal voice (hopeful).

    2. “basic logic” as Malcolm once again attempts his burnt offering of a pet theory that has so many holes in it as to be completely ridiculous.

      Maybe one of his sockpuppets at PatentDocs will join Malcolm in singing the praises of his vapid theory.

    3. MM, agreed that the addition of the old an routine to the ineligible will not normally save it, but consider Diehr.

      Now, Alice, abstracted as a process, might be ineligible because Bilski held its claims there to be ineligible and Alice’s claim are no different. But this does not establish why they are ineligible.

      Therefor, unless the Supreme Court provides us a reason why both the Alice and Bilski claims are ineligible, all we are going to get out of the case is that claims like those in Alice and Bilski are ineligible, and the addition of old, generic computers to the claims is not enough to save them.

      This would be only the smallest advance over Bilski and would not help in cases not like the claims in both cases but which do not embrace improvements in technology.

      If the court holds the claim eligible, it will have to be because the computer implementation was non routine.

      1. but consider Diehr.

        Please sir, I want some more. (said in the best Oliver Twist tones) What was the “Point of Novelty” there? What was “old and routine” there?

  7. Dennis, The reference to Mayo/Flook is important – with the notion that to be patent eligible there must be a technological innovation rather than discovery of an abstract idea followed by routine technological implementation of that idea. The result of the Mayo/Flook approach is that patent eligibility is temporally dependent. In particular, innovations that were once patent eligible will later be not eligible once the implementing-technology becomes well known.

    Dennis, no doubt that Mayo and Flook decided that the simple statement “compute it” will not suffice to save an otherwise ineligible “abstract idea,” the more difficult question the court has to face is defining what an abstract idea is.

    The way the solicitor general answered this question at the end of his argument in response to the question of the court was to basically state that anything that was not technological was abstract. But this is little more than a statement that anything that is not technological is not within the useful arts. I believe the Supreme Court recognizes that their Bilski opinion failed to define why the claims in that case were abstract, and it had nothing to do with their not being implemented on a computer. But whether they are willing to go the next step and say that subject matter that is not technological is abstract is another question given the way the court split in Bilski.

    The Bilski majority has no way out of its Bilski conundrum except to continue to fail to explain itself. It seems that most of the posters that have considered the issue here also agree that the court will not go so far as to define “abstract idea,” but will simply ignore the issue once again. If they do so, this case will once again have to be considered a failure just as Bilski was a failure.

    1. >> rather than discovery of an abstract idea followed by routine technological >>implementation of that idea

      That is nonsense talk.

        1. Ned,

          To your comment of “The court’s opinion in Bilski was and is a failure.“…

          Remove yourself for a moment from your Crusade. Imagine yourself in the shoes of each of the different views on software-patent eligibility.

          No seriously – suspend your own personal views and biases for a moment.

          Now take your comment and look at it thusly:

          The court’s opinion in _______ was and is a failure.

          Tell me one single modern day (since 1952) Supreme Court 101 decision that somebody (anybody) could not place on that blank line.

          One.

          Ask yourself – why is the 101 nose of wax jurisprudence so mashed?
          Ask yourself – will this Court, here and now, respond to the cry for help, the slap across the face, given by the lower court in the immediate case of Alice?
          Ask yourself – will this Court find the courage to be a Churchill? Or will we have (yet another) Chamberlain?

          1. anon, to the extent the 101 cases are not clear, they are a failure. All of them, except Myriad, suffer from confusing dicta.

            Also, to the extent that the 101 cases do not link their holdings to the statute as authority, I think they are failures. Benson had this problem. Flook corrected it in fn. 15, but that was a footnote. Myriad actually cited 101′s newness as the statutory basis for its holding.

            Were they to adhere to the statute, they would do better.

            I still contend that Bilski is a failure in part because the only statutory basis for its holding was eschewed.

            1. Ned,

              Once again that footnote you love to reference in Flook was an academic’s view – and not the law.

              Further, any time you reference either Benson or Flook and do not reference the additional quotes from those case that I have provided to you (or reference the limitations to both of those cases as created by Diehr), your view is suspect at best.

              Finally, the point of asking you to set aside your agenda for a moment was to have you realize the common denominator for this 101 nightmare: The Court.

              We will not get better until the addiction is admitted to.

      1. “Simply wrong….”

        OK, anon, give me one example of anything that was not technological that has ever been approved by either the Supreme Court or by the Federal Circuit. Just one.

          1. anon, in many posts here today and yesterday, you have remonstrated to me an to others that so-and-so is not the law. Mostly this is in regards to “technology.”

            But, what do you mean by this? Law? What law? And what authority?

            I don’t recall any Supreme Court case that refused to accept technology as a requirement. Did I miss something?

            1. What law? – Indeed.

              An exchange between Ned and I from the Hricik side of the blog at link to patentlyo.com

              anon:

              Ned,

              Are you trying to import EP law with the notion of technical effect?

              You do realize that you have no statutory basis in US law to lean on for your desired “technical effect”- right after you wish to join Prof. Hricik on the importance of grounding your position in statutory law…

              Ned:

              anon, exactly, I am.

              .

              Reading the map is just not the same as writing the map.

          1. Ned,

            Note the subset used in the AIA for the ability to question certain patents in post-grant proceedings.

            May I emphasize “subset.”

            If – as you pretend, the Useful Arts were only the technical arts, why then would the words of Congress even point to a subset?

            To put it plainly, you are engaged in an incorrect definition of the word. Your definition simply does not accord with the understood meaning.

            You, as king, stand naked. What are you going to say to the little boy that asks why you are not wearing any clothes?

          2. anon, you knew where I was going:

            Technological: of or related to a machine, manufacture, or a composition; or a process that results in a change in a machine, manufacture or composition to create a new or improved machine, manufacture or composition.

            1. Ned – your bias against process as an independent and equal statutory category is showing.

              Where from did you get this definition? Did you make it up yourself?

            2. And please note that I have corrected your use of Curtis on two different aspects of that scholarly tome. One of which was the statutory category aspect, and the other was how the understanding of innovation as a non-linear process (e.g. See Christensen).

    2. innovations that were once patent eligible will later be not eligible once the implementing-technology becomes well known

      Also simply wrong – See Diehr.

    3. Verrilli fails to account for the giveaway that Perry committed.

      Ned, you have a really bad habit of reading a brief or an oral argument, and if it agrees with your crusade, reading it as if it were law.

      1. anon, I think you exist in a land of your own delusion, and pontificate on every issue without ever noticing that no one is listening to you.

      2. “Verrilli fails to account for the giveaway that Perry committed.”

        Giveaways are “committed”? Lulz anon. I know your condition prevents you from understanding that Perry et al. simply has the thought of “win this case, whatever way possible”. He’s just saying whatever he wants to make it easiest for the supremes to rule for him. Just as he has, and which statements you’re so interested in. He simply doesn’t want them to feel pressured into having to rule one specific harsh way for him to win.

        1. 6,

          It is pretty clear that the lack of understanding is on your end. What he said has very real consequences. That he said it in an attempt to win is not really being questioned.

          How goes it with that projection problem of yours?

  8. Wow, that was stunningly quick.

    The U.S. Supreme Court has returned a decision in the Alice v CLS Bank case this morning, and in a shocking twist has closed the patent office. Holding that the explicit words of Congress used in 35 USC 101 were void for vagueness, the Court ordered the patent office to be closed pending a complete rewriting of the law by Congress. The Court apologized for its past attempts at writing the law and tossed the hot potato of defining ‘invention’ squarely back into the laps of Congress.

    .

    .

    .

    (ps, check your calendar)

  9. The most important exchange was Gingsburg being told it was 5-4!

    And what strikes me about this is how the justices are incapable of thinking about technology.

    The right way to think about this is that these business methods are getting more and more complex because now there is the tool the computer. And, the function business is nonsense. Functional claiming is fine. It conveys a meaning to one skilled in the art. And, not all functions are enabled. (only ways like put a hinge on it.) You can’t functionally claim write an opinion that ill match what the SCOTUS rules in CLS Bank because it is not enabled.

    A few other thoughts on the zeitgeist. 1) Big corp just use patents as a way to measure the output of their innovation. I just met with a person second in charge of a top 100 corporation in the U.S. and discussed the innovation budget for next year. Take away patents and the budget is going way down, and lots of engineers and scientist are going to lose their jobs. 2) O’Bummer has turned the PTO into a political organization like the other ones in DC. I will bet that ole CJ Smith is stacking the board and that in three years ole CJ Smith will walk into an appreciative industry job for 1.5 million per year or more. (And, Dennis if you think deleting this comment for that, then you know nothing about DC.) 3) The ACLU is out of their minds. Computer programmers when patents are gone get ready to sign an agreement that says if you speak a single word about what you are doing you owe the company all the money you make for the rest of your life.

    I know now how the honest bank regulators felt when Clinton put the moves on to remove all regulation.

    1. And, Dennis why do you delete so many comments and yet allow MM to dominate this board with essentially the same post posted over and over again?

    2. The comment that deserves a reply the most was “in the real world.” The computer is the real world. The computer is physical. What goes on inside the computer is physical. Fundamental inability to understand science or technology. And yet they rule us all.

      1. Take some time and think about a justice saying “in the real world.” It evinces a mental model of the world of science of about an eight year old.

    3. And computer programmers and electrical engineers forget about moving to different jobs. The lawyers know how to get you. They will write non-compete so that everything you learn at your current job you won’t be able to use that is proprietary and then the company will be sure to put large parts of what yo do as proprietary so that your skills will not be transferable. Probably have a form of Google C and Microsoft C etc. A way to trap you.

      Oh man…….what suckers the 99 percent are. The one thing that has given them so much power and freedom —patents—could be taken from them.

      1. what suckers the 99 percent are. The one thing that has given them so much power and freedom —patents—could be taken from them.

        Just when I think I’ve seen it all …

        Best April Fool’s Ever!

    4. Finally—-my prediction 5-4 with patents winning. Haven’t decided yet, but one thing that struck me that Kagan might be on the good side (pro patent).

    5. “I>I know now how the honest bank regulators felt when Clinton put the moves on to remove all regulation.”

      Lessons un learned – note the academics caught up in the S&L scandal (that’s right: Ivy League academics…)

      1. “academics caught up in the ….” Note that most of the ones “caught up” in the scandal walked away with so much money that they didn’t care.

        Money. Money. Money. I wonder if CJ Smith has been to the White House and met with the business leaders like the new “director” has.

        1. (but notice the lack of concern on the ‘impropriety” of the shadow-leader USPTO and closed door sessions with certain lobbyists from the otherwise ardent outspoken critic of ‘grifters’)….

          1. It is really clear that Obama has set up the PTO to bought off by lobbyist just like other government agencies. Really it is outrageous and inconceivable that he would do this. Yet, I’ll bet that ole CJ Smith has been to the Oval Office with the lobbyist and there is a big check waiting for him in a few years after burning down the system with the new shadow director.

    6. “The most important exchange was Gingsburg being told it was 5-4!”

      You’re obviously very excited about something that you’re not paying attention to the context of.

      1. 6 (Dennis the Menace), please stop following me around and making ridiculous remarks in response to my posts. Go and play with Margaret.

      2. LOL – 6 misunderstands the item, its context, and what the excitement is about.

        You may want to look into your serial misunderstandings, 6.

        1. “LOL – 6 misunderstands the item, its context, and what the excitement is about.”

          Then go ahead and stop beating around the bush and make it explicit for everyone.

          1. It already is, 6.

            You are confusing your own misunderstanding and projecting that misunderstanding onto everyone.

            You may want to tell your doctor how rampant your conditions are becoming.

            1. “6, what is the topic of Dennis’s post? ”

              Unpatentable: See Bilski, Mayo, Flook, and Benson

              What could “exchange” refer to? Sheesh.”

              A certain part of the oral arguments?

              Again, you seem to be really happy about a part of the oral arguments that you’re ignoring the context of.

            2. “Tell us, if you do not mind, what is the context as you understand it.”

              Sure anon.

              Breyer notes reading some briefs and that there appeared to be a rock and a hard place that they found themselves between when it came to making a decision. He was concerned about businesses competing based on how good their lawlyer is instead of actual business concerns. Further Breyer wanted to know how the counsel proposed them to get between the rock and hard place. The rock and the hard place are of course always letting comps/business methods be patent eligible or never letting them be.

              Counsel states that he proposed to deal with the problems that were known rather than the ones that were unknown, and suggested that congress recently looked at the patent system and did not say no to biz methods or software. Instead he noted that he felt that congress simply saw a problem with something, that counsel doesn’t make explicit (though he may mean simply trolling), and simply reacted by making an administrative solution to the problem by sending those cases to the PTO. He then proposes that 102/103 and the administrative process is the solution to the “problem” where he never makes clear what the problem he is discussing is because he doesn’t want to admit that biz methods and software are the “problem” congress was trying to fix. He leaves it to the judges to suppose what the “problem” was that congress saw.

              Justice Ginsburg then jumps in to interrupt counsel noting that in Bilski 4 justices did not read the legislative history the way way counsel does, with a super broad 101 gateway.

              Counsel responds that we’re post bilski now.

              Ginsburg notes that Stevens went through the legislative history in Bilski and found that in the 1952 act they were responding to a certain decision and not fing around with 101.

              Counsel then concedes that the natural inference from the legislative history is that congress did not change 101 in 1952. But he then notes that congress has created a whole administrative system to deal with 101/102/103 and that he something but is cut off.

              Scalia interjects – “and four is not five anyway, right?” (Because he was the would be fifth that “changed his position” so to speak in Bilski to join with just the one part of the majority in Bilski. He remembers that decision quite well, he even mentioned it was one of the most difficult of his career in an interview)

              Scalia then goes on to say : “By the way, we ­­ we have said that you can’t take an abstract idea and then say use a computer to implement it.  But we haven’t said that you can’t take an abstract idea and then say here is how you use a computer to implement it which is basically what you’re doing.” To help out the counsel who is constantly foundering and thus sets up counsel for Kagan.

              Counsel agrees with Scalia and then Kagan pounces asking just how it is that they’re using a computer to implement the abstract idea as opposed to simply saying “do this on a computer”. Counsel then blusters about flow charts and continues onward.

              I know that was a hard part to follow in the oral args so I’m happy to assist you anon. Perhaps that summary will assist NWPA as well. In either event, you’re both getting really giddy about sht we already knew right after Bilski. Stevens said some non-binding stuff in Bilski (we already knew that) and only got 4 votes. Nothing to be jumping up and down about there since you already knew it. Further, there is even less to jump up and down about since counsel himself concedes that the natural inference is the exact inference Stevens made, that congress did not f around with 101 in 1952. Even though he still wants to take the position that 101 is super wide after the 1952 act.

            3. Your understanding of the context (specifically what counsel admits to) is DEAD WRONG 6.

              It is very much a big deal, because it is one of the critical points why Stevens lost his slated majority writing position.

              You really should try to understand the law involved in these Supreme Court cases a bit better 6.

            4. 6, excellent summary. 16.6.2.1.2.3

              link to patentlyo.com

              The observation about Scalia is very interesting. He has got to see that he need to help clarify Kennedy’s atrocious opinion in Bilski.

              Perhaps he and Breyer will go back to the MOT as the default but not exclusive rule, and that the MOT also applies to claims where the novelty is in a programmed computer.

            5. “Your understanding of the context (specifically what counsel admits to) is DEAD WRONG 6.

              It is very much a big deal, because it is one of the critical points why Stevens lost his slated majority writing position.

              You really should try to understand the law involved in these Supreme Court cases a bit better 6.”

              Ok, then set me and everyone else straight about what the good counsel was conceding (“admits to”) was the natural inference if not what I just posted.

              Since between the two of us I’m the only one here who can read in context worth a dam I’m 100% sure you won’t have any other explanation that is at all likely given the context of the conversation at that point. But feel free to try!

            6. “The observation about Scalia is very interesting. He has got to see that he need to help clarify Kennedy’s atrocious opinion in Bilski.”

              Oh it certainly is. Scalia is helping out the counsel that is foundering at that point in the oral args but he knows good and well what his justification for switching was: a now non-existent section of old statute. Anon et al. should be very wary Scalia is going balls out against them this time. He remembers what happened and realizes why they’re even able to make their argument, because 4 isn’t 5 and he didn’t join. His past actions are allowing them to make their argument and he knows it and he knows exactly what the argument they’re making is, since he is the only reason they can make it. Don’t be surprised at all if he cuts them off if there is someone there to replace Stevens’ vote.

            7. I’m the only one here who can read in context worth a dam

              LOL – that is some d@mm heavy delusions you are suffering through right now 6.

              Your lack of reading comprehension skills are legendary. You may want to sprint to your doctor with a print out of this thread, as even he may not believe what you just typed.

            8. “LOL – that is some d@mm heavy delusions you are suffering through right now 6.

              Your lack of reading comprehension skills are legendary. You may want to sprint to your doctor with a print out of this thread, as even he may not believe what you just typed.”

              Are you going to tell us what he was “admitting to” or not dumas?

            9. “Can you clarify 6 – are you saying that you will be staying delusional?”

              No, I’m saying that you’re not going to tell us what he “admitted to”. Instead want to try to control me into saying something before you will. Even after I was good enough to do you the favor of explaining the exchange to your dumas in the first place.

              Typical really.

            10. Nope 6, you apparently are still very delusional.

              I just wanted to check before I spent any effort trying to teach you (hint: that is not the same thing as control – although I see why you have that delusion, clinging to your belief structure as you do).

            11. “I just wanted to check before I spent any effort trying to teach you”

              You just wanted to check what re re? You just wanted to check that I’ll listen to your opinion and only consider it your opinion?

              To be clear, your telling us your opinion of what counsel was talking about is not “teaching” us anything. Nor do any of us want you to “teach” us anything. I gave you my opinion about what he said, now feel free to tell us yours so that we’ll all understand why you’re soooooo giddy.

  10. This is a funny whine from an Alice fan, decrying the present day understanding of the present day computer-implementer:

    It’s as if anybody can have any “idea” whatsoever. Then you find a bunch of Silicon Valley coffee sippers lazing about their local coffee shop, toss them a few shekels and say, “have it finished by the end of the weekend”. Simple as that.

    It’s actually simpler than that because the coffee sippers are completely unnecessary to obtain a patent. But please continue …

    Then you find a crafty, sneaky and dishonest patent “draftsman” and say, “draft me up something clever before the end of the week.” And with this you have fooled everyone because all you did was come up with an abstract “idea” and then say apply it to a “computer” thingy machine-gee, where the patent “draftsman” was complicit in hiding the true truth of all this subterfuge by his clever use of lawyer words.

    Ths person somehow believes this isn’t an accurate reflection of the “technology” claimed in this case (and many, many others). Why do you think this junk is percolating up the Supremes?

    Everybody who isn’t in a coma innovates information processing methods all the time. It’s called “using your brain.” Understanding that “this information processing could be done on a computer” is also pretty basic stuff. So why do want to flood the patent system with “innovation” that is nothing more than those two steps and calling your patent attorney? Because a few such “innovators” and their attorneys are getting rich off doing so and they’re going to cry if you take away their feedbag? That seems to be the argument with the best evidence supporting it. There’s no evidence that lowering the bar will lead to better software, just like there was never any evidence that lowering the patent standard to allow “new recipe books” would lead to better tasting food. So what’s the point of the using the lowest possible criteria, other than to encourage gambling and grifting and litigating at the expense of pretty much everyone else?

    1. OK coma boy: define “abstract idea” without using a substitute tautology. Or Alinskyite pejorative ad hominem attacks.

      Ready set go.

      1. Asking Malcolm to post in an intellectually honest and responsible manner will not work.

        Unless of course, the ethics involved are more pronounced.

        Hmmm….

        1. “Asking Malcolm to post in an intellectually honest and responsible manner will not work.”

          Omg perhaps anon can learn something in a social setting! It only took him like 5 years. Maybe it isn’t impossible for him to learn thusly after all! An amazing day and an amazing breakthrough for you anon! I hope it isn’t you pulling an april fools on us to make us think you’re capable of learning when you really aren’t!

          But there is room for progress still if you want to attempt to make it. An observer can tell from his tone that he still desires to control MM into posting in an “intellectually honest” manner, aka one where anon’s points are “taken into account”. He could take one more giant leap forward and let go of that desire. Stay tuned for the next adventure in A”non’s attempting to overcome his psychopathic condition!”

        1. What is too funny is the inability of leftists to come up with anything original since Alinsky. Who himself channeled the bile and hatred of Marx.

          But really, when merit, liberty, and free choice, despite their success in elevating humanity, are anathema to progressive dogma, what else has a leftist to do but hate?

          1. when merit, liberty, and free choice, despite their success in elevating humanity, are anathema to progressive dogma, what else has a leftist to do but hate?

            Nobody could have predicted that Teabagger Turdbillion was a rightwing nutjob.

            1. The warped mind of a Stalin-era leftist never ceases to amaze, seizing every chance to ridicule merit, liberty, and free choice.

              At least you are honest in your amoral corruption.

      2. define “abstract idea” without using a substitute tautology.

        “Abstract idea” is not a term I prefer to use very often, if at all. So it’s not clear to me why you need me to define it for you.

        But “disembodied thought” would seem to work.

        Let everyone know what you believe is legally required to embody disembody thoughts into a non-problematic claim. According to Alice, the answer would appear to be “the recitation of any physical object.” But that’s just asking for a tidal wave of junk to flow in and out of the PTO. It’s what Prometheus asked for. It’s a non-starter. The system’s already on its knees and folks like Prometheus and Alice and their supporters want to kick it in the face.

        And they always will want to do that because they don’t care about anything except More Patents, Easier to Enforce, All the Time. Everybody’s figured that out by now.

        Just like the teabaggers want to “shrink government” so they can grab more public resources for themselves, the patent teabaggers want to cripple the PTO so they can stuff as many patents into their pockets as they can. That’s why nobody is ever surprised to learn that the patent teabaggers are so often Republican teabaggers. They share the identical goals: make it as difficult as possible for the government to function, complain about how crappy it is, and grab as much money as you can while constantly undermining every attempt to build protections into the system. It’s all about stuffing money into their pockets and screw everybody else. And of course everyone who criticizes them is part of a communist conspiracy.

        1. I call your “But “disembodied thought” would seem to work.” and raise you an anthropomorphication.

          The rest of your rant is not understandable, merely blah blah blah QQ QQ money is evi1 blah blah blah

            1. LOL – you do not seem to understand how you are coming across Malcolm.

              Perhaps you really don’t care how you come across and simply want to vent against “the injustice of the patent system,” or perhaps you don’t really understand the damage you do to your curse-sades. But any time you want to let the empty and vile rhetoric go and actually start discussing points of law and fact in an intellectually honest manner, feel free to join a real conversation.

            2. “LOL – you do not seem to understand how you are coming across Malcolm.”

              Actually I think he understands how he’s coming across to ret ards like yourself quite well. You’re a pretty open book.

        2. You know, like the Wright Bros patented the disembodied thought “wing warping” implemented with the old technology, wood, rope, pulleys and burlap.

          Clearly this was an old product of nature as birds had been warping their wings for millennia…and should have been rejected under 101 as not being an apparatus.

          1. Les, do you have any idea why a process that defines a number of concrete steps that results in a useful end is abstract?

            I have no explanation for Bilski other that they Supreme Court simply assumed that “fundamental economic principles” were ineligible regardless of how detailed and concrete the steps were.

            1. There Ned goes again on his Crusade – expanding (or at least attempting to expand) what the Court actually wrote to Ned’s views, oblivious as to the failure of Stevens to hold his majority position.

              So very sad.

              Ned, Prometheus concerned a medical method, where is your crusade to abolish all medical methods?

            2. As I recall, Bilski’s claims were gibberish. That doesn’t mean they weren’t a process. It just means they were gibberish.

              So, using the logic that court usually uses, the court said the claims did not recite a process, because the process they recited was known or obvious.

              The case law is as much a mess as were Bilski’s claims. because each case is decided based on the result the Court wants and then the law clerks draw straws to find out who gets to slap together the nonsensical reasoning to go along with.

      3. link to web.mit.edu

        That tells at the beginning of chapter 1 John Locke’s view on abstraction (and thus “abstract”, as the product of “abstraction”). Abstract, and “abstract idea” is thus what is produced as a result of abstraction of an idea in 3.

        “The acts of the mind, wherein it exerts its power over
        simple ideas, are chiefly these three: 1. Combining
        several simple ideas into one compound one, and thus all
        complex ideas are made. 2. The second is bringing two
        ideas, whether simple or complex, together, and setting
        them by one another so as to take a view of them at once,
        without uniting them into one, by which it gets all its
        ideas of relations. 3. The third is separating them (editor 6: ideas) from all other ideas that accompany them in their real existence: this is called abstraction, and thus all its general ideas are made.

        John Locke, An Essay Concerning Human Understanding
        (1690)”

        Thus an abstract idea is simply that which is left over after you have separated a specific idea from all other ideas that would otherwise accompany the specific idea in its real existence.

        Further he notes quite astutely:

        “We are about to study the idea of a computational process. Computational processes are abstract beings that inhabit computers”

        Considering the definition above, “Thus an abstract idea is simply that which is left over after you have separated a specific idea from all other ideas that would otherwise accompany the specific idea in its real existence.” you then see what the supreme court is concerned about not letting people claim outright, or claim all uses of.

        1. Still, 6, I do not total preemption in the Bilski claims of any fundamental economic principle. They provided specific, concrete steps in a particular context to produce a useful result. Under Benson, this should have been enough to move it from the abstract to the particular unless there was something fundamentally wrong with claiming fundamental economic principles.

          Historically, it is observed, that the courts have stated that business methods were ineligible subject matter, but the technology for implementing such was eligible. The central problem in Bilski was that they never said that the claims there were ineligible on any recognized basis, because they certainly were not abstract.

          1. >Historically, it is observed, that the courts have stated that business methods were ineligible subject matter

            Utter fallacy Ned.

          2. “Still, 6, I do not total preemption in the Bilski claims of any fundamental economic principle.”

            It was just a form of hedging ned. I know us people that aren’t in economic circles have a hard time seeing through the claim to what they’re doing, but if you try to educate yourself on hedging you should get it after awhile.

            1. “(sigh) what you claim as being in the immediate claim…”

              I’m sorry I don’t follow what you’re asking.

              But if you’re trying to ask whether bilski’s claim covered all forms of hedging no, obviously not, it covered his form of hedging, which is just another form of hedging, an abstraction.

            2. I’m sorry I don’t follow what you’re asking.

              LOL – at least here you are recognizing that you do not understand.

              Spend some time trying to understand.

            3. “LOL – at least here you are recognizing that you do not understand.

              Spend some time trying to understand.”

              Why should I spend some time trying to understand your dumas question? Stop trolling me you fu cktard. I’m going to give you one warning, after which I’m simply not going to talk to your dumb psycho ass at all.

            4. LOL – you? Stop talking?

              You wouldn’t know what to do with yourself.

              But you really should try that understanding thing – you know, after of course you get over that projection thing you have going on.

        2. 6, let me get this straight. You’re citing John Locke as an expert about whether using a computer to execute a computational process is abstract?

          You realize that John Locke lived from 1632 to 1704, right?

          It’s bad enough when judges and anti-patent folks talk about computers as if they’re souped-up calculators that only perform basic arithmetic. It’s worse that you’re now citing someone who died 200 years before Alan Turing was born.

          Also, “he” – John Locke – was not the source of your quote: “Computational processes are abstract beings that inhabit computers.” The fact that you think that John Locke, of the 17th century, could have expressed an opinion about “computers”… well, it speaks volumes, 6.

          Rather, you found that from this page at MIT Press:

          link to mitpress.mit.edu

          …which is a book by Adam Perlis, published in 1984. The chapter opens with a quote from Locke, and then transitions into Perlis’s commentary about algorithms.

          Perlis is certainly a luminary in computer science, but is not typically quoted as a source of clarification of legislative intent or about patent law. (Also, his comments are about computer science circa 1984… computers have advanced a bit since then.)

          1. “You’re citing John Locke as an expert about whether using a computer to execute a computational process is abstract?”

            Um no, I’m citing john locke for his quote about what “abstraction” means, and thus “abstract” means.

            I’m citing the author of the book I cited about whether using a computer to execute a computational process is abstract.

            Why don’t you just read page 1 of chapter 1? Or is it that hard to crack a book?

          2. “Also, “he” – John Locke – was not the source of your quote: “Computational processes are abstract beings that inhabit computers.” The fact that you think that John Locke, of the 17th century, could have expressed an opinion about “computers”… well, it speaks volumes, 6.”

            You know when I wrote “he” I just knew that you, being obviously a tard, would not understand that I meant “he” the author of the work, not locke. Jesus christ. Why are you such a retard?

          3. “Rather, you found that from this page at MIT Press:

            link to mitpress.mit.edu”

            Um no, I found it at the book that I posted a link to re re. Which just so happens to be the book that the page you’re quoting is from.

          4. “Perlis is certainly a luminary in computer science, but is not typically quoted as a source of clarification of legislative intent or about patent law. (Also, his comments are about computer science circa 1984… computers have advanced a bit since then.)”

            Yes, we refer to locke for “abstract” and then we refer to Perlis to whether or not computer processes are abstract. It’s that simple re re.

            We don’t need clarification about legislative intent. In 1952 plainly software was considered unpatentable. Copious amounts of evidence support this and you can ask old timers.

            As to clarification about patent law, yes, that’s what we’re looking for, clarification about what the word “abstract” means here. Locke helps us out. The word means the same as it meant 200 years ago and will still mean when I’m old.

    2. “where the patent “draftsman” was complicit in hiding the true truth of all this subterfuge by his clever use of lawyer words.”

      That’s exactly what Ryan Alley conspired to do and noted that others would be doing since the recent 101 cases. I seem to also recall some people at IPwatchdog noting they’d be doing that, maybe gene, maybe not.

      1. That’s exactly what Ryan Alley conspired to do and noted that others would be doing since the recent 101 cases.

        Right. Just make up some lingo, like the softie woftie’s have always done. Then give the function a name that makes it sound like it’s an apparatus component rather than an information processing function, e.g., “UAE (“user evaluation engine”) or PDU (“performance determination unit”) etc.

        1. sound like it’s an apparatus component rather than an information processing function

          LOL – more self-FAIL.

          Software is a manufacture and machine component.

          Software is equivalent to firmware and is equivalent to hardware.

          These are facts that you have to deal with. This is reality.

          1. Software is a manufacture and machine component.

            Keep pounding the table, TB.

            “magical box configured to tell Grandma that Johnny added a new movie to his watchlist, wherein said movie hasn’t been publically released and wherein said movie comprises an animated character, and wherein Johnny resides in a different state”

            That’s a “machine component”? Please describe the structure of this “machine component” to everyone, in objective terms that distinguish its structure from structures in the prior art.

            1. Those are facts.

              Patent Jeebus has spoken! Functions are structures. Bow down, everyone, while we carve a giant marble statute to memorialize this sooper awesome proclamation.

          2. These are facts that you have to deal with. This is reality.

            The reality is that you keep spouting these mindless aphorisms while your beloved softie woftie junk keeps getting hammered in court.

            The only reason you aren’t getting hammered even harder is because the “BigCorps” which you are so fond of disparaging arent willing to completely pull the plug. But the arguments in defense of their junk are just as self-serving and nonsensical as yours.

    3. Malcolm’s “value” judgments aside, I see no legal arguments being advanced, as well a complete absence of any factual basis not to grant patents that are allowed under the law.

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

      Those without either, pound the table.

  11. Giving away the game (because the patent teabaggers just can’t help themselves):

    the only way you can do that in a realtime basis when you’re dealing with a global economy is to use a computer. It is necessary to the efficacy of this

    The computer is “necessary to the efficacy” of just about every non-trivial information processing event that can be carried out remotely. It is, after all, 2014 — not 1944. Computers were designed to make information processing more efficient. It’s what they do.

    Everybody knows this. Everybody knew this forty years ago, at least. Why is the patent system still playing games with these bottom-feeders?

    Get them out of the system and everybody will be better off. The USPTO will be better off. The public will be better off. Individuals and companies that actually write software that works will be better off because they can develop and sell their software without worrying about being sued by bottom-feeders. Individuals and companies that use computers in their businesses will be better off because they can use their computers and run their businesses without worrying about being sued by bottom-feeders.

    1. Bottom feeders, teabaggers ….

      MM, I hope you include IBM, Judge Michel, the patent Bar and everyone else who advocates eligibility simply by reciting a computer … stop all further 101 analysis. The real target of these folks is not so much Mayo, but Benson.

      The SG had it right: inventions that improve computers technically, or that improve other technology technically, are eligible. Otherwise, the recital of a computer is like the sprinkling of magic dust on a naked emperor to make it seem like he is well dressed. To accept this argument in principle would be to endorse patents from the sublimely ridiculous to ridiculously harmful, and that have nothing to do with technology.

      1. the recital of a computer is like the sprinkling of magic dust on a naked emperor to make it seem like he is well dressed. To accept this argument in principle would be to endorse patents from the sublimely ridiculous to ridiculously harmful, and that have nothing to do with technology.

        A lot of those patents have already been “endorsed”. To call them “ridiculous” is being too kind.

        When the nuttiness first start trickling up that you could claim a “new” programmable computer by reciting some new information received, transmitted or processed by that computer, people who knew anything about computers knew that everybody was now an “innovator”. The bottom of the pond had been identified and it was touchable without a snorkel.

        Someone needs to cue up a typical B-claim for the Supreme Court just so everybody can be perfectly clear about the extent to which the patent system has collapsed under the weight of information processing “technology.”

      2. > The SG had it right: inventions that improve computers technically, or that improve other technology technically, are eligible. Otherwise, the recital of a computer is like the sprinkling of magic dust on a naked emperor to make it seem like he is well dressed.

        Ned, you can beat this drum all you want, but it runs at odds with quotes like this:

        SCALIA: We have said that you can’t take an abstract idea and then say: use a computer to implement it. But we haven’t said that you can’t take an abstract idea, and then say: here is how you use a computer to implement it.

        Breyer and Kennedy expressed some willingness in considering expanding that rule. Roberts and Scalia signaled strong resistance to a categorical change, and Sotomayor and Kagan indicated moderate resistance. It’s not going to happen.

        1. “We have said that you can’t take an abstract idea and then say: use a computer to implement it. But we haven’t said that you can’t take an abstract idea, and then say: here is how you use a computer to implement it.”

          Yes it will be very interesting to hear Scalia expound upon his pontification there.

            1. anon you seem to be really excited about the 4 out of 9 comment. You don’t seem to be understanding that it is a mere sideshow and the decision is still going to be 9-0 with the claims going down.

            2. 6, a little spoiler alert – the claims may go down, but Round Two was an abysmal failure for the anti-software crowd. Perry threw you guys under the bus.

        2. SCALIA: We have said that you can’t take an abstract idea and then say: use a computer to implement it. But we haven’t said that you can’t take an abstract idea, and then say: here is how you use a computer to implement it.

          Indeed, the Supreme Court has not said those exact words. Well done, Justice Scalia! Someone did their research.

          Meanwhile, let’s try to understand the huge difference between:

          use a computer to implement [insert otherwise ineligible information processing steps]

          and

          here is how you use a computer to implement [otherwise ineligible information processing steps]: configure said computer to implement the steps

          that Scalia is presumably talking about.

          Or does someone think that he was thinking of a claim that distinguished itself from the prior art on the basis of something other than the ineligible abstraction? Something more ….concrete…. perhaps? Something a bit closer to an actual working embodiment, as opposed to a simple dream about what a computer might do?

          1. Tell me again the last time working embodiments were required to be submitted along with a patent application in patent law Malcolm.

            Dazzle us.

            1. Tell me again the last time working embodiments were required to be submitted along with a patent application in patent law Malcolm.

              Happens all the time in the grown-up arts. You know: the arts where you can’t hang your patent on the recitation of a desired function and where the distinguishing structures need to be recited in the claim, instead of figured out by a third party for the first time.

              Are you going to recite your little fable about your magical box of protons now?

            2. Malcolm,

              Nice spin – I did not say “happens” – I said “required.”

              Did the two words somehow confuse you? What happened to that vaunted English as a First Language thingy?

            3. Nice spin – I did not say “happens” – I said “required.”

              Good lord, you’re pathetic.

              It happens that working embodiments are required in the grown up arts quite regularly. But you knew this already.

            4. Put.
              The.
              Shovel.
              Down.

              Repeating the goalpost move to restate “happens” when I made sure that you should be aware of the “English as a First Language” difference between your goalpost moving comment and what I actually said does not move the goalpost back.

              Try again.

            5. Repeating the goalpost move to restate “happens” when I made sure that you should be aware of the “English as a First Language” difference between

              *click*

              Wow. The dude is completely kookoo.

          2. …and then remove the NIMBY filters and push for the working models (to the required level of utility) for pharma – which would mean delayed filings until after the vetting process, given how many drugs fail to meet utility in the vetting process.

            1. then remove the NIMBY filters and push for the working models (to the required level of utility) for pharma

              You aren’t allowed to distinguish your pharmaceutical from prior art pharmaceuticals based on a desired function. You need to provide the structure. And you need to show evidence that your structure has a substantial utility and usually much more than that if you expect to obtain an enforceable patent.

              So we’re already there. In fact, we’ve been there for quite a while. What’s the typical CEO of a pharma company making these days? More than $200K? Apparently it’s not the end of the world for pharma. Heck, we didn’t even talk about deposits or sequence listings.

              But go ahead and tell me how awful it would be for the softie woftie “innovators” if we made things a bit more difficult for them. Make everybody cry with your sad, sad stories.

            2. you need to show evidence that your structure has a substantial utility and usually much more than that if you expect to obtain an enforceable patent.

              LOL – more spin. I notice the insertion of the word “enforceable,” but my post was onthe point of having that utility (with proof) at the time of filing, not years down the road after the FDA process.

              Move the goalposts back and try again.

            3. Apparently it’s not the end of the world for pharma.

              LOL – stick your head back in the sand and ignore the very real market valuation drop-off for firms experiencing an end to patent protection.

              Facts.

              You really don’t understand these things do you?

            4. Move the goalposts back and try again.

              What goalposts? You’re the one who brought up this pharma patent scenario. How in the world is any of that relevant to junk software patents?

              Again, dorkus: I’m not anti-patent. Not at all. Patents are useful and important and can certainly play a roll in promoting progress.

              But our patent system wasn’t designed to protect information processing. At best, their unnecessary for promoting development in that area. At worst, their harmful.

              By all means if you insist on software patents go ahead and propose some changes to the system that will prevent it from disappearing into a toilet of pure junk, which is where it’s presently heading. I’m sure there’s lots of ideas out there. I’ve even seen some of them discussed on the Internets.

            5. LOL – a Vinnie Barbarino “Huh, What?”

              Does not your vaunted English as a First Language skill set include reading?

              14.1.3.2.1.2 and 14.1.3.2.2.2 clearly identify your moving goalposts. Try reading these posts again.

              our patent system wasn’t designed to protect information processing” So sorry Malcolm, but Perry threw that notion under the bus.

              Your “unnecessary” plank is a strawman for a “but-for” position. As noted many times now, “but-for” has never been the exclusive reason for having a patent system. It is only one of many reasons. You keep on trying to erect a strawman as if it is the only reason. You keep on FAILing.

              propose some changes” Again – no need, the Court will not explicitly rewrite the words of Congress.

            6. Hmm, one wonders which of Malcolm’s stale and trite scripts will be posted in my call for him to actually engage in a conversation?

              Nobody could have predicted.

          3. Which is it? Are computers so complicated and mysterious that a computer implemented invention must be explained at the level of each line of machine code, or are they only so complicated and mysterious that they have to be explained at the level of every line of C++? Or, Would a state diagram and/or flow chart suffice?

            Or, is software so obvious that nothing, no voice to text converter, no aspect of the Internet, no image processing to detect tumors in people from ordinary photographs, no software is ever worthy of a patent?

            Which is it? Make up your mind. Too mysterious or too obvious?

            All inventions need only be described at the level that one of ordinary skill in the art would understand how to make and use the invention, without undue experimentation.

            For software, that means explaining the invention at a fairly high level.

            Get over it.

            1. On this point we agree – but you might be interested in the legal context as to “why.”

              That “why” is because claims are to be read in the understanding of a person having ordinary skill in the art to which the invention pertains.

              This is why one of my favorite words: anthropomorphication is so effective at eliminating the errant attempt to use the Mental Steps doctrine – machines simply do not think, and any person having ordinary skill in the art to which claims of the invention pertain to readily recognize this fact. It is only through the smoke and mirrors of those with a different agenda try to exclaim “Pay no attention to that man behind the curtain.”

    2. The ridiculousness of your logic is the very Duell-ity of it. Remove the NIMBY object of your curse-sade, and your vapid ‘argument’ can be applied universally to simply say “just shut the doors.”

      Again, get into a field in which you can believe in the work product you supposedly produce.

      1. Remove the NIMBY object

        Oh jeebus, I get it now. You’re accusing me of being “anti-technology” because I’m not a fan of software patents. Good one! Really believable and compelling stuff there.

        I’m not a fan of the current law relating to design patents, either. I suppose that’s because I despise ornamentation?

        C’mon, man. Everybody knows that progress in software writing will continue just as has been if not faster if we get this junk out of the patent sytem. The only difference is that patent attorneys will be far less involved. And try to guess who the most consistent and vocal complainers are when it comes to any changes to the status quo to make the requirements more strict? No, it’s not the folks who develop the most software …

        1. Everybody knows that progress in software writing will continue just as has been if not faster if we get this junk out of the patent sytem. The only difference is that patent attorneys will be far less involved

          Your curse-sade is very apparent and no, the but-for argument is still a vapid argument. This angst you have about patent attorneys – you sound driven by a personal vendetta.

        2. any changes to the status quo to make the requirements more strict?

          LOL – are you admitting that a change in law is required? Do you realize that any such change in law has to come from the branch of the government authorized by the constitution with writing law?

          Your self-FAIL continues.

          1. Do you realize that any such change in law has to come from the branch of the government authorized by the constitution with writing law?

            Oh, here we go again with the “I’m so principled” b.s.

            Get a life, man. We’re not as st00pit as you. Everybody knows that you’ll throw the exact same hissy fit tantrum regardless of whether functional claiming of computer-implemented junk is tanked by the Supreme Court or by Congress.

            All you want is More Patents, All the Time, Easier to Enforce. That’s it. Anything that interferes with that will be greeted with the same shrieking and hissy fits that accompany these Supreme Court decisions.

            1. Nice, um, attempt at a deflection Malcolm.

              You want to try to actually address the point raised now? You want to actually answer the questions I asked at 14.3.1.2 or do you want to continue to play dodge and run away?

            2. Here too, which Malcolm non-answer nonsense will plop from his script in ‘reply’ to the questions put to him?

              Nobody could have predicted.

  12. “This discussion of functionality may foreshadow the upcoming Nautilus case. ”

    Yep that one better prep for a beatdown as well.

  13. Dennis Crouch: The result of the Mayo/Flook approach is that patent eligibility is temporally dependent. In particular, innovations that were once patent eligible will later be not eligible once the implementing-technology becomes well known.

    Absolutely. In part, this is because the patent system was designed to protect new technology, not new methods of processing information.

    It’s 2014. Even 50 years it was understood that computers could store both old and new information for access and retrieval by humans, just like a big library of books or an encylopedia on a shelf or an phone book. For the standpoint of information-storage technology and patents, books and computers were equivalent from that point onwards. Both of them might as well be 10 billion years ago. They are both “old” and “conventional”.

    And that was 50 years ago — one hxll of a long time ago from the point of view of computing technology. And how interesting that it wan’t until fairly recently that attempts to patent computers on the basis of the information stored and transmitted by them became a favorite pastime of the bottom-feeders gambling at the Patent Casino.

    Golly, I wonder what inspired the change?

    1. Absolutely.

      You missed a word, Malcolm,

      Absolutely asinine

      Eligibility and patentability have two different meanings.

      Really, they do.

      1. Eligibility and patentability have two different meanings.

        Thanks. I knew that already and understand the relationship between the two concepts far better than you ever will.

        Do you need to have the simple relationship between the prior art and ineligibility explained to you again? I’m happy to hold your hand and walk you through it. I doubt that anybody else needs to see you stick your head deep into the sand and scream for Daddy Dierhbot for the billionth time, however. But do let me know. I’ll be right here, just in case.

        1. understand the relationship between the two concepts far better than you ever will.

          LOL – you might decide to actually show that understanding in your words then.

          After all isn’t English your first language?

            1. LOL – another ‘brilliant’ response in our conversation.

              (and no 6, I do understand that Malcolm wants to take his ball and run away home – that happens a lot when the conversation goes against his agenda – what you seem not to understand is that my highlighting such running away continues to reinforce that Malcolm is not interested in an actual discussion on the merits; he is only interested in his spin side)

            2. Malcolm wants to take his ball and run away home

              I’m right here, Tr0llb0y. When a bona fide nutjob goes off the rails, it’s time to disengage. I disengaged.

              [shrugs]

            3. LOL – lovely AOOTWMD Malcolm.

              Funny how you seem to disengage any time a discussion on substantive law or ethics peeks through. In fact, the only thing that you seem engaged in is your low brow stale script of poor blogging techniques.

              Go figure.

      1. Fish, “New.”

        Now, might I ask you whether programming a computer to calculate the algorithm in Benson creates a NEW computer?

        Do I create a new car by inputting a new destination into its map program?

        Does teaching a parrot a new word makes a new parrot?

        Did Flook really say in fn. 15 that the legal reason one cannot patent the computer programmed with a new algorithm was because it was not new albeit unknown?

        1. Benson really did say “We do not so hold
          Flook really did say “Neither the dearth of precedent nor this decision should therefore be interpreted as reflecting a judgment that patent protection of certain novel and useful computer programs will not promote the progress of science and the useful arts, or that such protection is undesirable as a matter of policy.

          You continue to misrepresent Ned.

          For shame.

          1. Neither the dearth of precedent nor this decision should therefore be interpreted as reflecting a judgment that patent protection of certain novel and useful computer programs will not promote the progress of science and the useful arts, or that such protection is undesirable as a matter of policy.”

            And no doubt the “certain programs” they were thinking of were programs for shoving an ad in a user’s face, wherein the ad is for a movie about available real estate and wherein information about preferred underwear color is used to target the user.

            Have you come up with a fallback position yet? The Supreme’s were begging you for one, or didn’t you notice?

            Because the hits are going to keep coming. Maybe you should come up with a fallback position. You know, before someone comes up with one for you that you really, really won’t like.

            1. No fallback – and just like Bilski and the group of 4 (hmm, yup 4 is still less than 5), the attempt to explicitly re-write patent law will fail.

        2. Does teaching a parrot a new word makes a new parrot?

          A 2500 year old quote attributed to Heraclitus: “No man ever steps in the same river twice, for it’s not the same river and he’s not the same man.”

          1. “No man ever steps in the same river twice, for it’s not the same river and he’s not the same man.”

            My beer just innovated a new head. Heraclitus rocks.

    2. The essence of the subject-matter test (101) is that it is an absolute test, i.e. independent of the “state of the art”, in contrast to the 102/103 test for novelty and non-obviousness. Courts have repeatedly warned not to confuse (or combine) the two types of test.

      Something that is abstract (or non-technical in Europe) remains so forever. The 101 test should prohibit patents on insufficiently elaborated ideas that would have a wider scope than regular patents, for less effort. Here 112 comes in, which obviously does not replace 101, but it gives a clue: subject-matter that can not be described in such a way that any PHOSITA can carry it out “without undue experimentation” is likely not to be patentable.

      1. I am aware that some people, and even courts believe that the “101″ test (and the Art. 52 EPC test) ought to be dynamic. This may sound logical, but it raises the fundamentla question whether there is some sort of (fixed) “meta-rule” to decide what the current interpretation of 101 should be. If there is no such rule, legal certainty suffers.

        The explanation of exceptions in patentable subject-matter is dissatisfactory: it is a word game, focussing ond tradition, and natural-law like arguments. Well, clearly tradition is not an argument. On the contrary, a flexible interpretation is the usual way to allow statutes to move with the times without constatnt legislator interference, and there is no real objection against this practice, as long as the basic premises of the legislator are observed. But what are they? Should the “useful arts” in the constitution indeed be interpreted as “technological arts” (and idea that was consistently denied by courts over decades)?

        Anyway, a technology test is problematic too. The grass may seem greener on the other side of the fence, but the European experience is not particularly favorable. A Britisch court named the technolgy requirement “a restatement of the problem in more imprecise terminology”. (Aerotel & Macrossan, 2006).

        1. and there is no real objection against this practice

          Sorry my friend, that may have once been true, but in the US, the Court overstepped that in their anti-patent daze and our Congress said “No Mas” and removed from the courts the common law evolution tool.

          This happened back in 1952.

          Otherwise, more kernels of truth from you.

  14. The first of David Stein’s “best quotes”: SCALIA: Why isn’t ‘doing it through a computer’ not enough? Was the cotton gin not an invention because it just means you’re doing it through a machine what people used to do by hand?

    Even back in the dark ages of the United States patent system, I’m pretty sure Whitney was not granted a patent to every machine “wherein said machine is configured to separate cottonseed from cotton fiber.”

    And if it was, that was a mistake.

    In short, Scalia’s quote is irrelevant nonsense. A more apt question would be whether a claim to “A cotton gin, wherein said cotton gin is configured to make cotton for a dress to be sold in the new state of Texas” is a “an invention.”

      1. That claim may have problems under 102, 103 and 112, but seems perfectly fine under 101.

        Exactly what “problems” do you see under 102, 103 and 112?

    1. In short, Scalia’s quote is irrelevant nonsense

      Because Malcolm the Red Queen/Humpty Dumpty decrees it so.

      1. There was no decree. I explained why it was irrelevant nonsense.

        And in response you proved to everyone once again that you are a s0ci0path and a liar, or just a complete idi0t. You can’t tell the difference between an explanation followed by a conclusion, one one hand, and your endless streams of self-serving b.s. on the other hand.

        Get help, Tr0llb0y. It’s going to be a long year for you.

  15. JUSTICE SOTOMAYOR: How about email and just word processing programs?

    MR. PERRY: At a point in time in the past, I think both of those would have been technological advances that were patentable. . . . Because they would have provided a technological solution to a then unmet problem. Today, reciting, and do it on a word processor is no different than and do it on a typewriter or and do it on a calculator.

    I don’t understand why it’s so difficult for judges and attorneys to understand that in almost every case, the only answer to a question put forth as vaguely as Sotomayer’s is: “it depends on the claim and on the prior art.”

    A claim to “A computer, wherein said computer is configured to send and receive information that can be read by a human being” should never have been eligible for patenting, nor is it a patent-worthy claim.

    Does this mean that email isn’t important? No. Does it mean we don’t care about email? No. Does it mean that without such a claim, there would never be email? Of course not. Does it mean that the invention of email would have occurred later, but for claims like that? Of course not. Does it mean that email isn’t valuable? Nope. Does it mean that email doesn’t involve technology? Nope. Does it mean that email is useless? Nope.

    All it means is that you can’t take an ineligible concept (“communication” or some variant of that) and tack on “do it with a computer” and expect to get a patent on it. This is doubly true (at least) when the computer, as generically recited in the claims, is really old and is designed to be configured in exactly that manner (and a zillion other manners related to the input, storage, processing and ouput of information).

    The real solution — the only solution that ever matters and the only one that still matters — to the “unmet problem” of “a system for handling electronic communication between people” was: faster hardware, faster and more robust communication lines, and more memory. Promote progress in those areas and everything else will follow like water flowing down a hill.

    Trying to promote “better” information processing programs by permitting functional claiming only promotes grifting and lawyering and more patents. It doesn’t promote progress in information processing. And it never will. It just blocks the flow of information and increases the cost for everyone (which is exactly what the stakeholders invested in the status quo want, of course).

    1. I rather agree that their explanation of abstract was not good. FFS people that comp sci book I was quoting from the other day cited a founding father that set forth what “abstract” and “abstraction” meant very well. It isn’t hard to reach back and see what some learned people have said on the subject throughout history.

        1. Sorry Stein, it wasn’t a founding father, it was john locke, that influenced the founders. I put the reference, analysis and definition by locke up above under NWPA’s comment. If you have trouble finding it let me know.

  16. JUSTICE BREYER: “There is a risk that you will take business in the United States or large segments and instead of having competition on price, service and better production methods, we’ll have competition on who has the best patent lawyer.”

    This “philosophy wonk” of a Justice hath no shame. Once more, a back-handed and demeaning slap at patent attorneys, just like in Mayo (i.e., the “draftsman’s art”).

    1. Even worse, as it disregards that competing on the best patent attorney would necessarily implicate competing on the reason why we have a patent system in the first place.

      The Duell tones ring heavy.

      1. “competing on the best patent attorney would necessarily implicate competing on the reason why we have a patent system in the first place.”

        How’s that? I can compete on hiring david kappos (just take him for an example) by offering him more money than applicant bob down the street offers. That has nothing to do with promoting the progress of the useful arts.

        1. It’s not lawyering anymore, 6.

          It’s “legal engineering”.

          Those useful arguments in my brief? They were created on a computer. That’s the essence of electronic structure, baby.

    2. “This “philosophy wonk” of a Justice hath no shame. Once more, a back-handed and demeaning slap at patent attorneys, just like in Mayo (i.e., the “draftsman’s art”).”

      I might would agree were it not for your good buddy gene telling people all the time to get a better patent lawlyer to be competitive in today’s environ. Obviously patent lawlyers want businesses to depend on them so that they’re more important. And that’s fine. But when the situation becomes as blatant as Breyer brings up there is concern.

      1. I might would agree were it not for your good buddy gene telling people all the time to get a better patent lawlyer to be competitive in today’s environ.

        Because all the really great patent lawyers know that you just need to use the magical words “configured to” and you are golden forevah.

    3. Once more, a back-handed and demeaning slap at patent attorneys

      It’s not a slap at all patent attorneys — just the bottom feeders who will try to patent information and abstract junk if you give them the chance.

      That’s why I’m not bothered by Breyer’s comments at all. Why would any decent patent attorney be bothered by them?

      There’s plenty of inventors out there who actually do research and develop new technology instead of just sitting around and dreaming of patent claims that they can use to shake down this or that industry. It’s not all bottom-feeders and trolls, although you might that impression from reading the comments in these patent blogs where such folks tend to hang out and complain all the time about how the bad old PTO is conspiring against them.

      1. That’s why I’m not bothered by Breyer’s comments at all. Why would any decent patent attorney be bothered by them?

        NIMBYism at its ‘finest.’

        That an apparent lack of understanding of why the words are an issue (hint: the words were NOT as you indicate only to one type of patent – but you would need to take your head out of the sand to see that).

        1. NIMBYism at its ‘finest.’That an apparent lack of understanding of why the words are an issue (hint:

          When you learn to type complete coherent sentences in English, let everyone know.

          1. LOL -see Prof. Crouch’s quote on link to patentlyo.com

            Thanks – Although if you read this blog regularly, you’ll know I often avoid the normal rules of grammar, spelling, and punctuation.

            Then realize that your “English as a First Language” skills merit you ZERO in any intellectually honest discussion.

            Congrats, you have aimed for perfecting saying absolutely nothing of import.

      2. Malcolm,

        I’ll say this only once: what you believe, think, or say doesn’t count for squat with me and many others who comment on this blog. So go ahead and LOL, ROFALOL, “pound salt,” or do whatever malarkey you choose to do, but I’ve got nothing more to say to you. Out.

    4. EG, but a well deserved slap. There is little doubt that the patent bar is in favor of the IBM approach: if it recites a computer, that is enough.

      We could have just said that back in the days of Benson, could we not. Simply recite the computer and the claim eligible. In fact, that was the reasoning of Rich in In re Benson. It has been the position of IBM and its allies. It is the position of bar. It is the resistance of which Perry spoke.

      The patent bar created this mess. It is fundamentally to blame in its insistence of elevating form over substance, of misdirecting the inquiry — of being, in the final analysis, self interested liars.

      1. Ned,

        The fact that you believe that this was a “well deserved slap” makes you just as “guilty” as Breyer. And like Malcolm, I’ve got nothing further to say to you either.

      2. I’m in favor of that approach along with the old limitation that automating a manual process is obvious. Hey, that sounds strangely like everything is patent eligible except for the exceptions and obviousness should be determined by 102/103, doesn’t it? It’s almost like someone sat down and though about it, then came up with a working system at some point.

  17. Will this be another Bilski dodge by SCOTUS?

    After reading the transcript for a second time, I didn’t sense any outright hostility towards software patents, as a whole. CLS Bank was even trying to distance itself from an outcome where software patents, as a whole, were deemed as nonstatutory subject matter.

    What I think this Court struggles (like most of us) is how to clearly define what is an abstract idea and what isn’t.

    Strange as it sounds, but I think Scalia is the swing vote. I think he has an “old guy” dislike of computers. However, I think he is uncomfortable with the other side’s reasoning or perhaps how far the other side wants to go. I don’t think he wants to bless (X + machine) = patentable subject matter, but I don’t think he wants to ban business methods (or software) entirely.

    1. This is probably going to be another unanimous decision (not that I agree), but the writing is on the wall.

    2. > What I think this Court struggles (like most of us) is how to clearly define what is an abstract idea and what isn’t.

      It’s now 16 years after the definition of “abstract” as “useful, concrete, and tangible” in State Street Bank Trust – and despite the collective failure of the courts to define any of those terms in a non-circular way, they continue to pervade the language of opinions.

      VERILLI: “We would define abstract – an abstract concept as a claim that is not directed to a concrete innovation in technology, science, or the industrial arts.”

      Crazy. Just crazy. Greg Aharonian will have a field day, again, with the prevalence of these meaningless terms in today’s oral arguments.

      > I think Scalia is the swing vote. I think he has an “old guy” dislike of computers. However, I think he is uncomfortable with the other side’s reasoning or perhaps how far the other side wants to go.

      Agreed. Scalia actually came down as the voice of reason.

      For me, this is the quote of the day:

      SCALIA: We have said that you can’t take an abstract idea and then say: use a computer to implement it. But we haven’t said that you can’t take an abstract idea, and then say: here is how you use a computer to implement it.

      All of the predictions that SCOTUS is going to nix In re Alappat just went into the shredder.

      1. The keyword is “how”.

        Scalia didn’t say what is needed to conclude that “how to do it” as opposed to just say “apply it” is being claimed. We can expect that they will be against pure functional claiming, but will they accept that an algorithm is sufficient machine structure to pass Mayo? They may water down this idea to some point because otherwise they would have to go along with Moore’s opinion. They don’t seem inclined to do that.

        1. There was a certain Solomon-like how do we split the baby tone in a world where splitting the baby only results in two halves of a dead baby.

        2. > We can expect that they will be against pure functional claiming, but will they accept that an algorithm is sufficient machine structure to pass Mayo?

          Nope. One of the clearest points of consensus is that no one believes that an algorithm must be disclosed, let alone specifically claimed:

          > PHILLIPS: I would urge the court to look at Joint Appendix 159, 285-286, where it goes through the flow charts. It doesn’t actually put in the code, but that’s what the PTO says don’t do. Don’t put in the code because nobody understands code – but put in the functions, and someone skilled in the art will be able to put in the code. And if they can’t do that, then it’s not enabled and that’s a 112 problem.

          > KAGAN: You’re not suggesting that specific code is necessary?

          > PERRY: No, Your Honor. I think the actual description of the programming is a 112 problem.

          There’s no plausible context in which both parties tell SCOTUS that patent applications don’t need to disclose actual code or an algorithm, and SCOTUS creates such a requirement anyway.

          1. There is a difference between a computer algorithm and the code. These quotes suggest the Justices will not require actual code.

            Phillips did point to the flow charts which is one of the accepted ways to provide an algorithm but his words are suggesting that a flow chart is function, not structure.

            1. > Phillips did point to the flow charts which is one of the accepted ways to provide an algorithm but his words are suggesting that a flow chart is function, not structure.

              That’s my point. The flowchart provides a specific “how” – the specific steps carried out to achieve the claimed result. And that “how” is recited functionally, in qualitative steps.

              Let’s look at different descriptions of the classic bubble sort algorithm.

              ===

              Here’s a functional result:

              Sort the list until no pair of entries is in the wrong order.

              That’s not sufficient by any measure. There is no description of how this result is achieved.

              ===

              Here’s a functional description:

              Iterating over the list, compare each pair of entries, and swap them if they’re in reverse order. Repeat until an iteration is performed without any swaps.

              Is that 112 enabled? Sure. Anyone with a basic knowledge of computer science can readily implement it. However, many design choices are still left up to the developers, and implementations will look pretty different.

              ===

              Here’s an algorithmic description:

              The bubble sort works by passing sequentially over a list, comparing each value to the one immediately after it. If the first value is greater than the second, their positions are switched. Over a number of passes, at most equal to the number of elements in the list, all of the values drift into their correct positions (large values “bubble” rapidly toward the end, pushing others down around them). Because each pass finds the maximum item and puts it at the end, the portion of the list to be sorted can be reduced at each pass. A boolean variable is used to track whether any changes have been made in the current pass; when a pass completes without changing anything, the algorithm exits.

              Notably, each functional step in this description can be directly translated to a few lines of code. There aren’t many programmign choices here, and any two implementations of that algorithm will look pretty much the same.

              ===

              The point on which both Phillips and Perry agreed – and that none of the justices contested – was that 112 only fails when the disclosure does not permit one of ordinary skill in the art to implement the invention. All that is required is a functional description.

            2. David,

              My doubts are about how can the Justices agree with what you say without adopting the views from the opinion of judge Moore. They don’t seem inclined to do that. I expect them to say something that has the effect of watering down the notion that algorithms are machine structure in a way or another.

            3. paul,

              What implicit writing do you see happening? The Justices are caught in a quandary – they cannot explicitly re-write patent law without invoking a constitutional crises, and they cannot make a brightline rule that removes the very damage they have created (the CAFC slapped them across the face with their en banc non-decision).

              They have to do something more than what they have done so far, but what? and how? They themselves can no longer say “We said ‘abstract’ and just apply it.” Look at how Breyer admits to as much with his struggles and admissions as to his reductio ad absurdum examples.

            4. Anon,

              What implicit writing do you see happening?

              My crystal ball is foggy. My best guess is as follows:

              I agree they will flesh out somewhat what they mean with abstract idea but I don’t see how they will do this. I expect they will come up with something that let them kill Alice’s patents and others like it. That rule may even be clear in some narrow circumstances. But it will not be a bright line rule.

              I expect they will make clear that writing “a computer configured to …” will not be enough to pass 101 but they will not rule that this type of claims would never work. They will be cautious about causing unintended consequences and avoid broad categorical rules. There will be fewer software patents after they rule but they won’t be eliminated.

              Perhaps they will surprise us and adopt the Software Freedom Law Center proposal that the machine or transformation test is acceptable as a bright line rule for software only. If they do that they will repudiate Alappat and they will make clear that data transformation is not a transformation of substance for purpose of this test. Without these clarifications Alice’s claims would stand under the MoT and they will not allow this. This is a low probability scenario but I don’t think it is out of the cards.

            5. paul,

              Sorry don’t see it: “Perhaps they will surprise us and adopt the Software Freedom Law Center proposal that the machine or transformation test is acceptable as a bright line rule for software only. If they do that they will repudiate Alappat and they will make clear that data transformation is not a transformation of substance for purpose of this test

              Not after Perry made his sacrifices (he offered up “mere data manipulation” as being patent eligible subject matter).

              You would also have to have the Court over-rule not one but two different recent decisions concerning MoT: both Bilski and Prometheus – and there is no evidence of record that the Court is even considering such a drastic action. You may have ‘bought’ their brief, but I really doubt that the Court has done so.

              I also do not see Alappat being repudiated. You cannot change the reality of this world by mere Court proclamation, and Alappat was not about mere data transformation as you imply. The problem you will have with any anti “configured to” statement is that “configured to” is structural language to those persons having ordinary skill in the art to which the invention pertains, – as claims need to be read in that context. Per chance the mere words are removed, those ‘crafty scriviners’ will immediately (and merely) use different words and achieve the same effect: use words to capture the reality of the invention.

            6. Anon, I was looking at a scenario, not expressing a preference. I said it is low probability and its occurrence would be a surprise.

              I hear your point that “configured to” is structural language. My point is if they accept that unconditionally they would in effect agree with Moore. They can’t hold Alice’s claims invalid under this view. We will see a holding that this type of language is not enough to pass 101 without something more. The question is how much more will be required. I know you don’t like this outcome but this is what they seem inclined to do.

            7. Thanks paul,

              However, I think you put too much credence into that one brief, which simply misses critical aspects of current law.

              That brief received basically no play at all in the oral arguments.

              I am just not seeing the elements you put forth as being of much import. Are you sure that is a crystal ball you are looking at (there might be a different reason you are only seeing ‘cloudy’). This has nothing to do with an outcome that I may or may not ‘like.’ As I posted prior to reading the oral arguments, how the case should turn out and how the case will turn out can be two very different things. After reading the oral arguments, my views, are, well, posted at the other thread.

            8. “I also do not see Alappat being repudiated.”

              So how are you planning to explain the machine claims going down in this case when they inevitably do? How’s this going to go in your brain?

          2. “There’s no plausible context in which both parties tell SCOTUS that patent applications don’t need to disclose actual code or an algorithm, and SCOTUS creates such a requirement anyway.”

            Nobody wants your code or algorithm. And therein lies the rub, that’s all you want to give in a software application. Nobody on the court wants to give you a big ol ball of functions either.

            1. “You appear not to understand the point being made, 6.”

              ” appear ”

              At least you’re catching on to the fact that it’s only an appearance, to YOU, and in fact only you, that I don’t understand the point being made.

              On the whole, you’re making progress.

        1. Whatever Aharonian said that was “scathing” of Feldman and her intellectually inaccurate and dishonest article in the NYT is appropriate.

      2. I thought the discussion on pages 17 and 18 was telling. Ginsburg states “four Justices of this Court did not read that legislative history the way you do. And it was — was in Bilski.”
        Phillips responds by: “But this is post-Bilski”
        Ginsburg talks about what Stevens wrote, and Phillips responds: “Well, I mean, it still seems to me that the — natural inference is Congress did not change 101. Congress created an entire administrative system to deal with 101, 102 and 103. And I would hope –”
        Scalia then chimes in: “And four is not five anyway, right?”
        Philips replies: “That’s true.”
        Scalia repeats: “Four is not five.”
        Phillips responds with a joke, and Scalia then trots out:
        “We have said that you can’t take an abstract idea and then say: use a computer to implement it. But we haven’t said that you can’t take an abstract idea, and then say: here is how you use a computer to implement it.”

        If you re-read Bilski, there was the Kennedy opinion and the Stevens opinion. Although Scalia signed onto the Kennedy opinion, he didn’t sign onto all of it (II-B-2 and II-C-2). However, he didn’t endorse the Stevens’ (47 page) opinion either. Scalia, however, did join in Part II of the Breyer concurrence.

        I think Scalia is looking for some middle ground between unfettered patentability for any method and excluding all business methods (possibly including all software). I wouldn’t take his comment about “Four is not five” lightly.

        1. That’s an excellent piece of analysis of some fairly murky comments.

          The “five” opinion (Kennedy, Roberts, Thomas, Alito, and Scalia) held that Bilski’s invention was not patent-eligible, but refused to create a categorical exclusion for business methods.

          The “four” opinion (Stevens, Ginsburg, Breyer, Sotomayor) wanted a categorical exclusion. And of those four, Stevens retired; Stevens’ replacement, Kagan, was pretty neutral today; and Ginsburg and Sotomayor showed much less stomach for a bright-line test today.

          Given that Stevens led the failed charge for categorical exclusion of software, and that the Court has moved steadily toward the center after Stevens’ retirement, I can only interpret Scalia’s comment one way: the Court will not be presuming that Congress intended to limit 101. It will retain its originally broad legislative intent.

          1. Ginsburg was staunchly “I-don’t-care-if-we-were-in-the-minority,-we-did-not-’buy’-the-actual-explicit-words-of-Congress-and-would-still-explicitly-re-write-them.”

            Such dangerous disregard for the separation of powers doctrine is not surprising to see the alignment of her and Breyer.

          2. David Stein, “original broad legislative intent

            Was that “original” as in 1790 in 1793, or in 1952, or his or there difference. Do you know what Frederico actually said?

            1. No it is you.

              There. Happy? we traded useless accusations.

              How about you actually address the many points I have put to you Ned.

              Stop.
              Running .
              Away.

            2. Ned:

              “Original” as per Diamond v. Chakrabarty:

              Subsequent patent statutes in 1836, 1870, and 1874 employed this same broad language. In 1952, when the patent laws were recodified, Congress replaced the word “art” with “process,” but otherwise left Jefferson’s language intact. The Committee Reports accompanying the 1952 Act inform us that Congress intended statutory subject matter to “include anything under the sun that is made by man.”

            3. David, thanks. For clarification, read fn. 6, which reads

              “This same language was employed by P. J. Federico, a principal draftsman of the 1952 recodification, in his testimony regarding that legislation: “[U]nder section 101 a person may have invented a machine or a manufacture, which may include anything under the sun that is made by man. . . .” Hearings on H. R. 3760 before Subcommittee No. 3 of the House Committee on the Judiciary, 82d Cong., 1st Sess., 37 (1951).”

    3. Mr. no, what I think the trying to do is find a good definition of “abstract idea.” They must realize that the reason the Federal Circuit is in chaos is because they failed to explain themselves in Bilski.

      1. Mr. no, what I think the trying to do is find a good definition of “abstract idea.” They must realize that the reason the Federal Circuit is in chaos is because they failed to explain themselves in Bilski.

        My original comment (Post 7.0) was “What I think this Court struggles (like most of us) is how to clearly define what is an abstract idea and what isn’t.” They easily put off answering that question in Bilski when the claims were to a method and no machine is implemented. They cannot do the same here.

        Scalia signed onto Part II of Breyer’s concurrence, which listed 4 points consistent with both Kennedy and Stevens. The second point is the following:
        “Second, in a series of cases that extend back over a century, the Court has stated that “[t]ransformation and reduction of an article to a different state or thing is the clue to the patentability of a process claim that does not include particular machines.” Diehr, supra, at 184 (emphasis added; internal quotation marks omitted).”

        They added emphasis to the phrase “the clue.” In the third point, they stated MOT was not the only test but it is an “important example.” The question lies is whether this means (i) claims that pass the MOT test are automatically in and claims that don’t still pass the test could possibly pass another (unidentified) test or (ii) claims that pass the MOT test are not automatically in and there is still more analysis needed. Alice wants (i) and CLS bank wants (ii).

        The problem with the CLS bank position is that it requires a holding that states that a computer is nothing more than an abstract idea. Sure, you can do it, but to do so requires a definition of “abstract idea” that significantly departs from the common notion of what constitutes “an abstract idea.” The machine or transformation test, when applied, essentially acknowledges that once you’ve added a machine, you are no longer talking about an abstract idea. Moreover, if the MOT test is “the clue,” how can you argue that a claim to more than just the process (i.e., a machine) doesn’t also provide that clue.

        What I SCOTUS is trying to weigh is that they certainly don’t want claims to abstract business methods (but that was handled in Bilski) but under what circumstances does a business method become patentable? Business methods are not categorically excluded, so they need to draw a line.

        Drawing the line using some version of MOT (e.g., do you recite a computer? if yes, proceed to 102/103/112) is easy to administer and provides clearly-defined line. It may be more inclusive than what some justices want. However, I’m not sure they found another line to work with that they could accept. The USPTO’s six (“non-exclusive”) factor test certainly isn’t a clearly-defined line, and CLS bank wasn’t particularly forthcoming with their line. I didn’t read all the briefs, but unless someone is going to put forth a workable line, then SCOTUS is going to have to make one up on their own (if they want to keep these types of cases from coming back to them) or they’ll adopt the line that they’ve used before: MOT. I could be wrong, but I think Scalia is leaning towards MOT because there isn’t another line he can work with.

        1. Oh no,

          You might want to clarify what you mean by MoT – Ned seems to be readily confused by the “Judge Rich-version” machine present means MoT met. While he shamelessly plugs MoT as ‘law,’ he backpeddles immediately at this type of “Judge Rich” view.

        2. Mr. No, I largely agree with your post.

          Assuming the four liberal judges (who really advocate a conservation 101 position) stand together as in Bilski, and the four conservatives (who advocate a liberal 101 policy) also stand together, the swing is Scalia. I think I heard him say that simply reciting a computer is not enough, but specific steps to implement the business method in a machine would be enough. He may be leaning in favor of Alice to the extent that he sees enough detail in the computer implementation.

          If Scalia is the deciding vote, he should write the majority opinion.

          1. I’m not sure why you think the conservatives are advocating a “liberal 101 policy” when the interpretation that a machine is a machine and falls under 101 is the more conservative position than the interpretation that a machine is not really a machine but an abstract idea. That, to me, is the more liberal position.

            If Scalia is the swing vote, who is going to sway him? Roberts et al.? or Ginsburg et al.? I can only wager a guess what Scalia thinks about Douglas and his writings (see Benson), but I suspect it is not a high opinion.

            He may be leaning in favor of Alice to the extent that he sees enough detail in the computer implementation.
            That may be it. What Alice claimed is a far cry from: “Eighth. I do not propose to limit myself to the specific machinery or parts of machinery described in the foregoing specification and claims; the essence of my invention being the use of the motive power of the electric or galvanic current, which I call electro-magnetism, however developed for marking or printing intelligible characters, signs, or letters, at any distances, being a new application of that power of which I claim to be the first inventor or discoverer.”

            1. I think expanding patentable subject matter is the hallmark of the liberal position — always expanding rights.
              101 was extremely broad to begin with. Starting with Benson, SCOTUS has whittled away from the plain language of the statute — judicial activism is not being conservative (i.e., protecting the status quo). It is not “expanding rights” to say that a machine falls under 101.

            2. Mr. no, I think that you will have to agree that the Federal Circuit and the CCPA before it have a reputation of constantly expanding the scope of patentable subject matter. They are in a fight with the Supreme Court and have been in a fight with the Supreme Court for a very long time. The pressure to expand the scope of patentable subject matter is coming from the Federal Circuit and not from the Supreme Court.

              I have quoted cases where Judge Rich has been roundly criticized by his own colleagues as being a radical and not following the rule of law. There is question that Congress reacted with horror with regard to Rich’s opinion in State Street Bank.

              Rich was nothing more than a radical and he led his courts in a radical direction. Such is not conservative by any measure.

            3. reputation of constantly expanding the scope of patentable subject matter

              Not.
              At.
              All.

              It is not “expanding” Ned when you hew to the words that Congress used.

            4. There is question that Congress reacted with horror with regard to Rich’s opinion in State Street Bank.

              Because they immediately and unequivocally outlawed business method patents at that point, right?

              Um, wait, they did not.

              So, then Congress immediately and unequivocally outlawed business method patents after the Bilski decision, right?

              Um, wait, they did not.

              Ned, your cries are sounding rather false.

            5. I think that you will have to agree that the Federal Circuit and the CCPA before it have a reputation of constantly expanding the scope of patentable subject matter.
              I will not concede that point in the face of the extremely broad language of 35 USC 101. Judicially-made exceptions (which is what we are talking about) are judge-made contractions of that broad language. The exceptions don’t expand upon the statute — they contract it.

              I have quoted cases where Judge Rich has been roundly criticized by his own colleagues as being a radical and not following the rule of law.
              I haven’t seen those. Could you reproduce those quotes again. However, I think your criticism is better leveled at Congress who created the broad language of 35 USC 101 in the first place.

              Rich was nothing more than a radical and he led his courts in a radical direction. Such is not conservative by any measure.
              I don’t see anything radical about following the plain language of the statute.

  18. Following the original decision in the Federal Circuit I published a guest post on IPWatchdog pointing out, amongst other things, that the European equivalents of the Alice patents had not been granted and pointing out that there was not much discernible in the way of invention. My view wavered because I came to the view that settlement risk was a serious problem to which there was a solution that might in some aspects be technical. On brief scanning of the transcript there does not seem to have been so much of that, and I could discern little from Alice in the way of real problem and real achievement.

    In a comment in my posting nearly two years ago now, I said the following:

    “Why, in a few words, was this a good invention? If there is no easy answer to that question then the present decision is at risk of reversal. Especially in a non-expert court such as the Supreme Court which has in recent years seen a parade of weak patents coming before it and from the decisions handed down has evidently been less than impressed. It is not attractive for a judge to support an apparently worthless patent on a technicality, and if that is how they perceive the inventions in these patents, the Supremes will be inclined to point out the similarities between this case and Bilski and hold the claimed inventions to be unpatentable. If there are cracks in the structure of fact before the Court, then the law will not be adequate to paper those cracks over and the decision will be reversed. I express no concluded view as to the outcome, merely identify a factor which in my opinion will have a powerful influence on the outcome. And identifying that question does not require legal knowledge, merely an understanding of how judges’ minds usually work. That changes less than you might think in travelling from London to Washington.”

    If you re-read that posting and the various comments which express other points of view. you will see that the issues were fairly well defined two years ago and that nit much since has fundamentally added to them.

    It seems likely that the Alice claims will be held unpatentable and all we can hope for is a good decision like Festo and not an unwirkable one like Prometheus.

    1. an unwirkable one like Prometheus.

      Seems to me Prometheus is working quite well, Paul. You might try to get used to it as it’s never going to be overturned. There’s very good reasons for that, not the least of which is the fact that it prevents people from claiming methods of thinking new thoughts about data gathered with old methods.

      Oh wait, this has been explained to you a zillion times but for some mysterious reason you still can’t figure it out. I apologize for bringing this sad fact to everyone’s attention. Go ahead and read Paul Cole’s awesome article, everybody! I’m sure it’s at least as enlightening as his refusal to understand why the Prometheus decision came out 9-0 and will never, ever be overturned.

      1. LOL – Because Malcolm has decreed it so.

        Even if he cannot square it with the prior cases most on point, and his to date only attempt to do so resulted in his throwing his pet theory on the bonfire of FAIL, and then refusing to use his vaunted English as a First Language skills to save the burning embers.

  19. Most interesting exchanges and comments:

    ===

    SCALIA: Why isn’t ‘doing it through a computer’ not enough? Was the cotton gin not an invention because it just means you’re doing it through a machine what people used to do by hand?

    ===

    SCALIA: We have said that you can’t take an abstract idea and then say: use a computer to implement it. But we haven’t said that you can’t take an abstract idea, and then say: here is how you use a computer to implement it.

    ===

    KAGAN: I thought that your patents really did just say, do this on a computer, as opposed to saying anything substantiv about how to do it ona computer.

    PHILLIPS: I would urge the Court to look at Joint Appendix 159, 285-286, where it goes through the flowcharts. This is just a specific example of the method by which you stop a transaction, and it goes through a varied series of detailed steps and what the computer has to do in order to do that. It doesn’t actually put in the code – but that’s what the PTO says don’t do: don’t put in the code because nobody understands code – but put in the functions – and we know that someone skilled in the art will be able to put in the code. And if they can’t do that, then it’s not enabled and that’s a 112 problem.

    ===

    ROBERTS: General, you mentioned a while ago the need for greater clarity and certainty in this area. In your brief, you’ve got a non-exhaustive list of factors to consider, and there are six different ones. I’m doubtful that that’s going to bring about graeter clarity and certainty.

    ===

    GINSBURG: I have a question about how do you identify an abstract concept.

    VERRILLI: We would define abstract – an abstract concept as a claim that is not directed to a concrete innovation in technology, science, or the industrial arts. It’s abstract in the sense that it is not a concrete innovation in the raditional realm of patent law.

    ===

    PERRY: We know from Benson that if you can do (something) by head and hand, then the computer doesn’t add anything inventive within the meaning of the 101 exception.

    ROBERTS: What if you can do it without a computer, but it’s going to take 20 people a hundred years?

    PERRY: If what is being claimed is hte necesary speed or effiiciency or data crunching capabilities, then it would have to be claimed, and there’s nothing claimed here. All that is claimed is just a computer. It just says: “a computer configured to.” It doesn’t say that the computer actually HAS to -

    BREYER: Yeah, but the trouble with that particular teest is that you’re not just saying “apply it” – you are saying, “use the computer,” but at the end of the road, soomething physical in the wordl changes.

    ===

    KAGAN: You’re not suggesting that specific code is necessary?

    PERRY: I think the actual description of the programming is a 112 problem.

    ===

    KENNEDY: Woudl you give me an example of a business process idea and invention that is patentable?

    PERRY: Your Honor, there are many examples. One would be a technological solution to a business problem.

    SOTOMAYOR: How about email and just word processing programs?

    PERRY: If we have an abstract idea, and what is claimed is the inventive contribution is the computer, then the computer must be essential to that operation and represent an advancement in computer science or other technology.

    SOTOMAYOR: So you’re saying no to email and word processing. They certainly have functionality and an improvement of functionality for the user.

    PERRY: At a point in time in the past, I think both of those would have been technoogical advances that were patentable, because they would have provided a technological solution to a then-unmet problem. Today, reciting ‘do it on a word processor’ is no different than doing it on a typewriter or a calculator.

    ===

    SOTOMAYOR: What’s the necessity for us to announce a general rule with respect to software? There is no software being patented in this case. Do you think we have to reach the patentability of software to answer this case?

    VERILLI: No, not necessarily. Mayo answers the question of whether the use of a computer adds eough to the abstract idea beyond conventional steps. Here, all we have is just conventional use of computing technology,

    KENNEDY: Is there an example you can give us of a business process that is patentable, a process that doesn’t involve improving the workings of a computer?

    VERILLI: I think it’s going to be difficult for me to do that.

    ===

    BREYER: You were just getting to the point where you say that a computre improvement that leads to an improvement in harvesting cotton is an improvement through a computer or technlogy, so it qualifies. But a computer improvement that leads to an improvement in the methods of selling bonds over the telephone is not an improvement in technology reached by the computer. Am I right about the distinction you’re making?

    VERILLI: That is generally the line we’re drawing.

    BREYER: And how is that justified?

    ===

    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.

    ===

  20. “GENERAL VERRILLI: We would define abstract an abstract concept as a claim that is not directed to a concrete innovation in technology, science, or the industrial arts. So it’s the it’s abstract in the sense that it is not a concrete innovation in the traditional realm of patent law.”

    Not in the useful Arts is another way of putting it: not a machine, a process, a manufacture or a composition. [Here process must be the MOT kind of process approved Diehr.] This list was created by the founders in 1790/1793 and it must be intended to mean their idea of useful Arts. There is no need to go to other source materials like that French encylopedia, to dictionary definitions or to a sua sponte tests proffered by the government. Keeping it simple has a lot going for it.

    1. Sounds like a great idea, Verrilli … all we’d have to do then … is define “concrete innovation.”

      Nooooooooooo problemo.

      That’s the best our gov can do?

      Sheeeesh.

  21. From The Guardian:

    “US Supreme Court justices gave little indication they would set new guidelines on patent eligibility of software, one of a series of arguments and decisions coming from the court on Monday.

    From their questions during an hour-long oral argument, the court appeared likely to rule for CLS Bank International by saying Alice Corp Pty Ltd’s patents for a computer system that facilitates financial transactions were not patent eligible.

    Although some of the nine justices signaled a willingness to set a test 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 decision is expected by the end of June.

    Chief Justice John Roberts questioned whether a proposed test, suggested by Solicitor General Donald Verrilli on behalf of President Barack Obama’s administration, would make the complex issue any clearer.

    “I’m just doubtful that’s going to bring about greater clarity and certainty,” Roberts said of the proposal.

    Justice Sonia Sotomayor also suggested the court might steer clear of the broader question.

    “Why do we have to reach software patents in this case at all?” she asked Verrilli. ”

    Until readers persuade me otherwise, I will take this summary as reliable, and a good indication of what to expect.

    link to theguardian.com

    1. > “Why do we have to reach software patents in this case at all?” she asked Verrilli. ”

      And this will mark the 26th consecutive instance where the Supreme Court was asked to find software or business method patents categorically unpatentable, and the 26th consecutive instance of the Supreme Court saying no.

      Of course, this streak will not deter opponents of the patent system from presenting the same argument next time. Or the time after that. Or…

      1. “And this will mark the 26th consecutive instance where the Supreme Court was asked to find software or business method patents categorically unpatentable, and the 26th consecutive instance of the Supreme Court saying no.”

        They’re a court, you have to make such a big decision their last resort before they’d exercise that power. Unfortunately that is unlikely to happen in this case since they’d gladly kill off business methods and leave software for another day.

            1. It won’t exactly be a loss of the “war”. Even if, incrredibly, they came out super pro software patent, which obviously inst going to happen, all that does is set the congress up to take action in a few years. Again anon, the gov works slowly. This is how it works through problems that arise. Everyone acknowledges that there’s a rock and a hard place, where perhaps there is some good software for patenting, industrial, or making the comp itself work better etc perhaps, but where the reams and reams of functional garbage need to go. The gov will take it from here, the antis will have it regardless of what the supremes say.

              But yes it will likely just be a bilski 2 since it is so easy to kill all the claims on those limited grounds without reaching much about software.

              One thing though, why is it that they don’t just say “alappat” and rest their case at the supremes? Could it be that these machines are ineligible even though totally a “new machine”? Hmmmm?

            2. “Asked and answered 6 – see my posts admonishing Ned for not conflating the category aspect of 101 and the utility aspect of 101.”

              Can you give me a specific number on that?

              I’m don’t see how the “category aspect” and “utility aspects” are at all relevant here. We’re talking about eligibility, specifically the “judicial exclusion aspect”, not the category aspect or utility aspect.

            3. I’m don’t see how

              That appears to be a correct statement.

              Ask yourself, how does the judicial exclusion aspect fit into the words of Congress? What part of 101 is the source of the implicit writing?

              T.
              H.
              I.
              N.
              K.

            4. “Ask yourself, how does the judicial exclusion aspect fit into the words of Congress? What part of 101 is the source of the implicit writing?”

              New iirc.

            5. “new” is not an aspect of 101 in and of itself.

              As I explained to Ned, the phrase is “new and useful” and is known as the utility aspect of 101.

              You are getting confused because the word creates the impression of overlap with the separate patent clauses of 102/103.

  22. Perry:

    “any …..solution to a …….social problem, would be within the realm of the of the patent laws”

    So in the USA a new and non-obvious, useful and enabled solution to a “social problem” is patentable? Thereby promoting progress in the useful arts, I suppose? I’m impressed.

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