Patenting a Data Structure?

By Dennis Crouch

Digitech v. Electronics v. Imaging (Fed. Cir. 2014)

Today, the Federal Circuit held oral arguments in this Section 101 case involving Digitech’s U.S. Patent No 6,128,415 that claims a “device profile” and a “method of generating a device profile.” The invention is basically the idea of tagging images with particular information about the camera and its color/spatial image qualities. Asserted claims:

1. A device profile for describing properties of a device in a digital image reproduction system to capture, transform or render an image, said device profile comprising:

first data for describing a device dependent transformation of color information content of the image to a device independent color space; and

second data for describing a device dependent transformation of spatial information content of the image in said device independent color space.

10. A method of generating a device profile that describes properties of a device in a digital image reproduction system for capturing, transforming or rendering an image, said method comprising:

generating first data for describing a device dependent transformation of color information content of the image to a device independent color space through use of measured chromatic stimuli and device response characteristic functions;

generating second data for describing a device dependent transformation of spatial information content of the image in said device independent color space through use of spatial stimuli and device response characteristic functions; and

combining said first and second data into the device profile.

The district court found that the “device profile” was merely a bit of data that did not fit within the literal requirements of the statute that an eligible invention must be “a process, machine, manufacture, or composition of matter.” The district court also concluded that the method claim encompassed an abstract idea.

Mark Lemley argued on behalf of the accused infringers and the court seemed agree with many of his arguments – especially with the notion that a claim to a data structure (claim 1) is not itself patentable. The method step involved more questioning and Judge Moore rightly challenged Lemley’s argument that “A method of generating an unpatentable idea is itself unpatentable.” Later, Lemley pulled-back from that statement somewhat and instead more particularly argued that mere generation and transformation of data should be unpatentable either as not-a-process or else unduly abstract.

Two potentially interesting questions for the case: (1) how to treat expert testimony stating that claims require technologically sophisticated computer and (2) whether the concrete and practical purposes of the invention needs to be recited in the claims.

This case may well be impacted by CLS Bank, but I would suspect the only impact will be on the language that the court uses to affirm. The politics of the outcome may be interesting. Although I would not be surprised with an affirmance without opinion, Judge Moore may want to hold this case until after CLS Bank in order to make the first post-SCOTUS comment on the issue. (Judges Moore, Reyna and Hughes were on the panel).

The patent was originally owned by Polaroid who assigned rights in 2010 to the British Virgin Islands entity known as Mitcham Global Investments – seemingly as part of the bankruptcy proceedings. Then, in 2012, rights were transferred to Digitech which is an Acacia company. The USPTO records also show a security interest held by a Saudi investment company.

Listen to oral arguments: http://www.cafc.uscourts.gov/oral-argument-recordings/all/digitech.html

438 thoughts on “Patenting a Data Structure?

  1. Malcolm,

    Your post at 36 continues the fallacy argument that you so typically engage in, neglecting to account for the critical exceptions to the judicial doctrine of written matter.

    Do you really think that you are f00ling anyone by your constant retread of this fallacy?

    That’s a serious question.

    You volunteered an admission about knowing the controlling law on the subject and then you persevere in all types of duplicity and chicanery concerning the concept. You deny repeatedly that you ever made the admission (while the archives were not accessible) and attempted to denigrate any post holding you accountable for what you – in fact – did admit to. Any attempt to have you integrate the concept into a reasonable discussion is dismissed out of have by you with name-calling and a refusal to address what is in fact controlling law.

    I get that you don’t like the law. I get that the law is problematic to your desired end state. I even get that making an argument for your desired end state is made more difficult if you have to account for what the law actually is. But your adamant refusal to behave in any reasonable manner is bizarre and an affront to anyone that wants to actually discuss the topic.

    1. What MM does now is he engages in an argument. Loses. Then re-posts the same thing again accusing others of not responding to his argument.

      Absurd.

  2. One of the w@nkers below just wrote this:

    Holding data structures ineligible is like holding filing cabinets ineligible.

    Here’s a question for the professional softie woftie patent attorneys out there who aren’t path0l0gical liars: what will happen to the following claim in court and why?

    1. An improved filing cabinet, wherein said improvement is a piece of paper comprising information stored in the cabinet, wherein said information is [insert new, useful non-obvious information here].

    Is that eligible for patenting? Is it patentable? If the answer to either question is no, please explain why and include the underlying policy behind any case law or “doctrine” that you rely on.

    Let’s see how intelligent and honest these softie woftie types are. This is exactly the kind of conversation that you’ll never find over at Big Gene’s place. And we all know why.

    1. Go back to the earlier argument where you lost this same argument. There is no need to re-post to pretend that you won. Stop swinging around like this and throwing your APE duty on all of us..

      Now try. That’s a good APE.

  3. Below in the examiner’s statement of allowable subject matter. Notice he did not consider that he was allowing a patent on disembodied data, but only as part of a digital image reproduction system, and that limitation is in the claims.

    “2. The following is an examiner’s statement of reasons for allowance: while describing a device dependent transformation of color information content of the image to a device independent color space is well known in a color management system as evidenced by the primary reference to Stokes, none of the prior art, however, teach or suggest a device profile for describing properties of a device in a digital image reproduction system to capture, transform or
    render an image comprising: a data for describing a device dependent transformation of spatial information content of the image in a device independent color space. It is for this reason and in combination with all the other limitations in the claims, that independent claims 1, 9, 16 and 24
    are allowable over the prior art of record. Since claims 2-8, 10-15, 17-23 and 25-33 further restrict these claims they are allowable also.”

    This claim, in such context, looks a lot like Alappat where the output of the body of the claim was data, but the preamble limited the claim to a rasterizer, and a rasterizer was described in the spec to be part of a graphics unit for a display.

    Just to not, the application was filed in 1996 and issued in 2000. The examiner did not enter a 101 rejection.

    1. Notice he did not consider that he was allowing a patent on disembodied data

      That’s nice.

      He allowed a claim on a “device profile.”

      The “device profile” is simply descriptive data.

      That’s ineligible junk. It was junk then, and it remains so today.

      It doesn’t matter if the data is in a computer or in a book. You can’t protect it with a patent.

      This is really basic, fundamental stuff.

      Time for the softie wofties to grow up. Why is it so hard for them?

      1. MM, I agree in principle that one cannot patent information. But one can patent the use of information in a machine that modifies its operation to produce a new and useful physical result.

        I think the latter is occurring here if the preamble is sufficiently specific enough and is given weight as in Alappat.

        1. But one can patent the use of information in a machine that modifies its operation to produce a new and useful physical result.

          You’re describing a new process for producing a physical result, wherein the process includes someone or something taking into account some information. Are some such processes eligible for patenting? Yes.

          But that’s not what’s going on here at all, Ned. What’s claimed here is “a device profile”, i.e., the information that is being used. It’s just data. Read claim 1. That’s all there is. Data, wherein the data can be used by some machine. Ineligible junk.

          Now, claim 10 is a bona fide process claim. But it’s a claim for generating patent-ineligible data that recites just two steps: generate this data, then generate that data! Of course that’s not eligible. It’s just another attempt to use a patent to prevent people from using information in a particular context. The patent system turns into pure chum for bottom-feeders if you let people monopolize information in that way. That’s what we’re seeing right now. It needs to end.

          Also, by the way, it wouldn’t matter if the last step of a “generating data” process like claim 10 was “print the data onto a book page” or “store the data on a computer.” That’s just a field limitation. It changes nothing. It’s like trying to patent a mental process by limiting the process to a certain kind of person or a certain place. That sort of limitation doesn’t address the problem, it just confines the problem to a smaller area for that particular claim. But the fundamental problem remains and it will eat the patent system like cancer.

          1. Then do as is proper and look at the claim in the eyes of a person having ordinary skill in the art to which the invention pertains.

            You know, as is required under law.

            Um, you do know what law is, right?

            1. Mm for gods sake man what he wants was set forth blatantly in on of those articles. He reall really needs “to be heard and others to acknowledge him”. He also really really wants to control what you say. His way of trying to accomplish these things is to ask that you include in your side if the conversation things he wants to talk about rather than things you’d rather talk about. Thus indicating that you heard him, accept what he says, and will speak in the manner he desires. Its a bizarre mixture of needing to be heard and desire to control.

            2. He also really really wants to control what you say

              LOL – you still don’t understand any of this 6. You are projecting some type of ‘control’ fetish where there is none.

              No wonder you gave up on the whole law school thing.

          2. It’s just another attempt to use a patent to prevent people from using information in a particular context

            LOL – no further comment necessary.

          3. MM, this then draws into question the issue of what was patented. The examiner’s reasons for allowance should have some weight here, as he did construe the claim in context of the preamble.

            I heard nothing in the oral argument about claim construction, which is odd. If the lower court had construe the claim to exclude the preamble, there a better cost to appeal that issue by the patent owner because such a construction would render the claim invalid. If however, that was patent owner’s preferred instruction, then he asked just argued himself out of a valid patent.

            Lemley seem to agree that the system claim patents in the patent would not present a 101 problem. But for some reason they did not assert those claims. This does raise an issue in my mind as to whether there is a problem. Perhaps the patent the assuming somebody that does not use the patent data structure in a digital imaging system.

        2. You’re describing a new process for producing a physical result, wherein the process includes someone or something taking into account some information. Are some such processes eligible for patenting? Yes.

          LOL – please tell everyone more of this Malcolm.

          Then fold in Bilski that holds that MoT is not required.

          Go for it.

      2. So, you have gone and made new posts rather than address the issue of the special purpose circuit, which completely defeats you. Data —wait for it—the second word is —-is —- STRUCTURE.

        1. A data structure is certainly just like any other structure. I guess ignorance leads the Louries of the world to say if you can’t see it, it can’t be real.

            1. You know Martin, it isn’t our responsibility to answer question you can pose. The fact is that I put out an argument. It is rock solid. Let’s see you respond to it.

              I could answer your question. But, you should respond to what I wrote. And, I’ll give you a hint. The structure I recited is part of a a machine.

            2. Marty,

              It is not if it lacks the functional relationship that drives the legal exceptions to the judicial doctrine of printed matter.

              You can add this to the list of things that you really should have discussed with your attorney. As you continue to exhibit a critical lack of understanding and of being informed, your attorney should be alarmed at the potential ethical violation of acting without your informed consent.

    2. Sure he did Ned:

      “none of the prior art, however, teach or suggest a device profile for”

      A “device profile” is, as the claims make clear, data.

      1. 6, but consider Alappat. The body of the claim only produced data. See Archer’s dissent. The link to the machine, the rasterizer, was in the preamble.

        1. Look ned, an old case has dick to do with claim construction in this case. And even if we grant that the claim is “tied to a generic device” that will change ziltch. But go ahead, be surprised when this is 101ed.

          1. 6, I expect it will be 101’ed. I think they will hold that data is not a manufacture because it is not physical. Do you agree with that?

            1. Ned, Are you leaving out the preamble and are you still reading the claim in the eye of a person having ordinary skill in the art to which the invention pertains?

              Further, you never answered the point I offered as to encryption and cryptography. You had last stated (in error) that two machines were required for the cryptography art field.

              This highlights (along with Bilski’s holding that MoT is not required) the rather loose foundation of “physical.”

              The question as to “physical” is impacted by the (rather bogus) Nuitjen case, and I do wonder how long that decision will be recognized as valid, as even in discussions post hac, it is not the physicality section (as you comment above) but the “timing”-ignore-star-light section that has been maintained.

              As I stated near the beginning of the thread, there are two critical legal items to be determined. That preamble seems more and more necessary to breath life into the claim, and I do not see how it can not be included in any analysis.

            2. anon, whether the preamble is included are not is a matter of claim construction. The result here could vary depending on that construction.

              I don’t know whether the lower court has construed the claims are not. But I was certainly argue to the Federal Circuit if I were the patent owner that the claim is properly construed includes preamble, and then rely on Alappat.

              We can talk about cryptography at some other point in time, but cryptography involving encoded messages between two people not involving any physical apparatus simply is not eligible for patenting in my view because such is neither a machine, a manufacture, a composition of matter or process involving one of these.

            3. Your distinction on cryptography outside of machines is clearly allowed.

              The Bilski case, while not dealing specifically with that topic, clearly holds that MoT is not required.

              You may wish otherwise, but I see no legal basis to support your wish.

            4. (edit required):

              Change “Your distinction on cryptography outside of machines is clearly allowed.”

              To:

              Your distinction on cryptography outside of machines is clearly not allowed. – Simply put, no machine is required.

            5. anon, your reference to Bilski does in fact support your point, my apologies. But this does illustrate why the Bilski case is such an abomination – the basis for exclusion is not based on whether the subject matter being claimed is something involving a machine, a manufacturer, or composition of matter, which really is the MOT. They instead said that the MOT is not a limitation on patentable subject matter. Thus they kick patent law into a new sphere of the incomprehensible. No one now knows what is excluded from patentability except laws of nature, products of nature, and math, or in the case of Bilski, well-known subject matter.

    3. Normally I’d agree with you, Ned. But looking at the claim:

      1. A device profile for describing properties of a device in a digital image reproduction system to capture, transform or render an image, said device profile comprising:

      first data for describing a device dependent transformation of color information content of the image to a device independent color space; and

      second data for describing a device dependent transformation of spatial information content of the image in said device independent color space.

      This is the rare case where the elements of the claim are purely non-functional data that “describes” something. The printed matter exception squarely applies here.

      1. David, if there was no preamble, and if there was no reason for allowance, then of course, you would be entirely right.

        The fact that data is the only output of the body of the claim is not determative, see. Alappat

        1. The fact that data is the only output of the body of the claim is not determative, see. Alappat.

          I agree with that, but I’m not looking at the output – I’m looking at the actual disclosed invention.

          Boiling down this claim to the actual elements of the disclosed invention, we have:

          A device profile comprising… first data for describing a transformation of color information…; and second data for describing a transformation of color information…

          That’s all it is: a profile comprising two pieces of descriptive data. The claimed invention is, very explicitly, a collection of non-functional data. That is not a valid statutory class.

          1. Boiling down

            ?.. reaching for a gist of he invention…?

            David, have you given any weight to the preamble, or is it in your view not limiting?

          2. David Stein: a profile comprising two pieces of descriptive data. The claimed invention is, very explicitly, a collection of non-functional data. That is not a valid statutory class.

            I agree that if this is how the claim is construed, it is directed to nonstatutory subject matter because data is neither a machine, a manufacture, nor a composition of matter. Data can be created, in that sense it is a manufacture. But a manufacture has to be physical, and it has to be non-transitory.

            Now we are going to see, David, the weeping and gnashing from the likes of anon who strongly disagree with the notion of non-transitory. But even if they do, I hope they do not disagree with the notion that a manufacture has to be something physical.

            1. As noted in a sister comment, the discussions post-Nuitjen have focused less on the physical and more on the transitory. – My apologies as I cannot recall the case or the thread, and do not have the time now to look it up.

              As past discussions have indicated this is problematic from a reality point of view.

              Photons and the particle/wave nature plays havoc with “physical,” as
              looking up into a clear night sky wrecks the notion of “transitory.”

              The weeping and gnashing (re: transitory) has everything to do with the clear absence of reality in any judgment to the contrary. Common sense went out the window with that case.

              As to “physical,” I think this breaks down (as I mentioned) and really is just a poor substitute for something else: pure thought or something that is totally in the mind. I think of anything existing in the physical (real) world outside of the mind is indeed fair game and I question the logic employed in attempting to rule such things out as not belonging to the patent realm (Useful Arts being met, of course).

  4. It’s fascinating that the patent teabaggers here won’t answer the simplest questions about their own beliefs. Instead, they respond with “when did you stop beating your wife” nonsense that they somehow believe is equivalent to these straightforward questions (easy to do, I suppose, if you’re a s0ci0path like Tr0llb0y).

    How about it, computer-implementers? Will anyone step up to the plate or do we just have to listen to the little crybabies here stamp their feet and declare that information is eligible for patenting because “you can make it”. Here’s the question for y’all:

    What will happen to the following claim in court and why?

    1. An improved filing cabinet, wherein said improvement is a piece of paper comprising information stored in the cabinet, wherein said information is [insert new, useful non-obvious information here].

    Is that eligible for patenting? Is it patentable? If the answer to either question is no, please explain why and include the underlying policy behind any case law or “doctrine” that you rely on.

    Let’s see if you guys are actually as st00pit and deluded as you appear to be, or if there is actually a non-ignorant honest bone in your body. Step up, folks.

    1. And MM the data structure is the structure of the filing cabinet not the data in the filing cabinet. Sheesh. You have no boundaries.

      1. Notice that he’s still not answering the simple question asked of him in response to his own assertion.

        Check it out, folks. These are your softie wofties “in action.” This is how they kick up dust and keep moving the goalpost. This is what they’ve been doing it for years.

        But they’re not getting away with it anymore. Judges are apparently getting tired of being made to look like f00ls but liars who spew self-serving b.s.

        the data structure is the structure of the filing cabinet

        LOL. Except for one huuuuuuuuge difference. A kindergartner can describe the physical structure of the filing cabinet to everybody. But you can’t describe the structure of the “data structure” to anybody.

        Just answer the question I asked you. Is it too hard for you, NWPA? You need mommy to hold your hand for you? You pretend that you know so much about patent law and yet … you can’t answer the simply question I asked.

        Golly, it’s almost as if you’re just a liar, totally full of sh*t, and you suddenly see that you’re going to get caught and exposed. Could that be the case? Sure seems like it.

        1. >>But you can’t describe the structure of the “data structure” to anybody.

          That is ridiculous. MM, one of my clients makes cameras. They build special purpose chips that have data structures like this. The structure is the special purpose circuit. No one skilled in the art of EE/CS would have any problem with this. What do you want a circuit diagram? That is something any EE graduate could make.

          Sheesh! The ignorance is unbelievable. (Although I doubt it is ignorance.)

          1. And, by the way, just last year I wrote a patent application for the camera manufacturer that had a circuit something like the data structure in this case. It was actually a lot like it. It was for counting the number of electrons generated from light.

            Just unbelievable the ignorance, or more accurately, the attempt to play off others’ ignorance. I am sure one of the bourbon swilling new judges at the Fed. Cir. that O’Bummer appointed would buy your nonsense. So cheer up sunshine.

          2. Notice that he’s still not answering the simple-straightforward question he was asked. He’s just kicking up dust and pretending that nobody notices.

            Sorry, NWPA. You’re just a liar. You make lies up to please yourself but you can’t defend your self-serving lies. You just keep moving the goalpost.

            The structure is the special purpose circuit.

            What’s the structure of this “special purpose circuit”? Describe it for everyone in detail, such that the structural difference between your “circuit” and the prior art circuit is clear to everyone. Go ahead.

            See how it works, folks? NWPA can’t answer these straightforward questions directly so he just makes up some self-serving b.s. that sounds like an answer but is nothing more than kicking the can down the road. Ultimately he’ll tell us that he doesn’t need to describe the structure because “scope of enablement.” That’s just shorthand for “I refuse to describe the structure because I can’t and even if I could I don’t want to.”

            But he can’t bring himself to admit that. Instead he just strings together bullsh*t that pleases him. The patentee’s attorney attempted to do the same thing in oral argument. He got pounded by the judges and he got pounded by Lemley because nobody is falling for the b.s. anymore. Why should the Federal Circuit coddle these lying clowns? They don’t enjoy being made fools of. Nobody does.

            1. MM, read what I wrote. The structure is the special purpose circuit. What part of that don’t you understand?

              It is like talking to an animal. MM people with EE degrees are laughing at you right now. Climb back into your tree and wait to evolve.

            2. The structure is the special purpose circuit.

              Yes, that’s it. Keep repeating your self-serving garbage over and over. Maybe try screaming it. It’ll become more persuasive that way, especially if you simultaneously pretend that the person hasn’t responded to your self-serving garbage already.

              See how the softie wofties work, folks? They’re dishonest acts.

              Notice that he still hasn’t answered the straightforward question he was asked in direct response to his earlier assertion about the legal equivalence of data structures and filing cabinets.

          3. one of my clients makes cameras. They build special purpose chips that have data structures like this.

            That’s nice. Those “data structures” or “device profiles” aren’t eligible for patenting. Have you advised your client of this or are you just taking their money, prosecuting junk, and laughing all the way to the bank?

            Try to focus on answering the question asked of you. Nobody cares about your crap clients.

            1. the question is what is the structure. So I told you

              No, you didn’t tell anybody what the structure of the so-called “data structure” is. All you did was say that the “structure is a special purpose chip.” That’s just kicking the can down the road, as you’ve already been told.

              The patentee didn’t claim a “special purpose chip.” It claimed a “device profile”.

              Stop dissembling. You’ve been busted. Just answer the straightforward question you were asked. Or is it too hard for you? It’s not terribly hard for most honest professional patent attorneys, I can assure you of that. But you seem to be having great difficult with it for some reason.

            2. MM, a special purpose circuit is structure. You haven’t said why you think it is not.

              Sheesh, stop swinging from tree to tree and try to suck it up. You lose–again. You can deny it. But, the reality is that is structure. That is part of the scope of enablment by one skilled in the art (like me—not you the APE.) And hardware is equivalent to software as you have admitted. You are simply shouting and repeating yourself because you lost.

              Goodness.

            3. a special purpose circuit is structure. You haven’t said why you think it is not.

              A “device profile” is not “structure” because if it were “structure” you could describe this structure to everyone. But you can’t do that so instead you just lie about it and keep pounding the table with gibberish.

              the reality is that is structure.

              No, that’s not “reality.” That’s your fantasy. Keep clicking your ruby slippers together if you like but you’re just telling lies and everybody knows it. Have you listened to the oral arguments in this case? Your nonsense didn’t get off the ground before the judges spat on it.

              That is part of the scope of enablment

              Again: gibberish.

              Also note that the liar still hasn’t answered the very straightforward and direct question he was asked in response to his assertion about the legal equivalence of “data structures” and “file cabinets.”

              hardware is equivalent to software as you have admitted

              Even more lies, on top of lies. What’s the matter with the softie wofties anyway? Are they all just a pack of liars or is it just NWPA and Tr0llb0y?

            4. You keep using that word “lies.” I do not think it means what you think it means.

              You have spent too much time in your spin world.
              You have lost all credibility posting that you do not think intellectual honesty is required on a blog because this is not a court.
              You have planted WAY too many AOOTWMDs.

            5. you do not think intellectual honesty is required on a blog because this is not a court.

              Note that the path0l0gical liar still refuses to address the straightforward question that he was asked — a question that arose directly from a statement made by his own patent fluffin’ buddy, NWPA.

              Note also that the path0l0gical liar will not provide the direct quote or the context of the discussion in which this alleged “admission” was made.

              That’s how the softie woftie crowd rolls, folks. They’re just liars. And the more they lose, the more desperate and pathetic they’ll become.

              It’s going to be long year for them. Let’s watch and enjoy the show.

            6. LOL – what possible context can you fabricate Malcolm to make the use of intellectual dishonesty palatable?

              You are using the “liar” term in a most definite out-of-control and indiscriminate manner.

              Clearly you are so invested in your spin that you simply no longer care about anything except repeating your trite script without regard to law and without regard to fact.

              I’ve given you a straight forward answer – in law – and all that you do when presented with the law is call names.

              No legal position is advanced. No critical review of facts. You do not enter into those discussions because, as we have seen, when you so attempt you ‘oops’ and volunteer admissions against your interests. You are still reeling from the fact that you volunteered understanding the controlling law concerning the exceptions to the judicial doctrine of printed matter.

              You just do not have the nads to approach these discussions in an intellectually honest way.

          4. “They build special purpose chips that have data structures like this. The structure is the special purpose circuit. No one skilled in the art of EE/CS would have any problem with this. What do you want a circuit diagram? That is something any EE graduate could make.”

            Then why not put it in the drawings?

            1. Then why not put it in the drawings?

              LOL – do you need me to spank you again on the whole “what is needed” in drawings thing again 6?

      2. The data structure is the structure of the filing cabinet not the data in the filing cabinet.

        Well… not really.

        In computer science, data structures typically have some aspect where the actual layout of data is significant. A hashtable, for example, is an array where each slot holds objects where the hashcode of the object corresponds to the array index of the slot.

        In this case, the “structure” is just a loosely aggregated set. There’s no “structural” interrelationship among the data parts comprising the “structure” here. All that matters for this claim is that the descriptive elements are present – not that they’re arranged in any particular way.

        It’s like the difference between:

        An engine, comprising: a specific arrangement of parts

        and

        A kit for building an engine, comprising: some tools, and a bag holding a set of engine parts that can be assembled into an engine.

    2. MM, regarding the method claim first, why is this claim Abstract under Bilski?

      Bilski held the claims there abstract because the concept of hedging was notoriously old and because the additional limitations did not materially limit the claim enough. This is purely out of the Rubber-Tip case that held a claim to a rubber head for lead pencils, regardless of form of the rubber head, and not for the combination with a pencil, to be not “new” within ambit of today’s 101 because everyone knew that rubber could be made to adhere to an object such as a pencil. See, Rubber-Tip Pencil Co. v. Howard, 87 U.S. 498, 22 L. Ed. 410 (1874) (“An idea of itself is not patentable, but a new device by which it may be made practically useful is. The idea of this patentee was a good one, but his device to give it effect, though useful, was not new.”)

      But assuming the particular method of obtaining and the type of data for a digital imaging system was in fact new, not notoriously old, then why is this claim abstract under Bilski?

      This is a puzzle, and illustrates that Bilski seemed to be asking questions that are better placed in 103. So given 103, and the data being new and non obvious and functional in a digital imaging system, where is the legal problem?

      1. MM, regarding the method claim first, why is this claim Abstract under Bilski?

        There’s no need to rely on anything in Bilski to tank this junk.

        The claim ineligible because it protects information itself, which is certainly abstract subject matter. It doesn’t matter how useful the information is. It doesn’t matter if the information is new and non-obvious. It doesn’t matter if the information is stored in a book or in a computer.

        The method claims here are also junk because they simply recite steps of “generating” the ineligible information, with nothing more. They are a joke.

        This is the Pandora’s Box of bottom-feeding that the PTO has opened, with the help of a few clueless judges: protect information (generically described classes of information even!) by pretending that the mere description of a pre-existing context for that information somehow makes a difference. It doesn’t. Information is information, whether it’s written in a book, written in the sky, or stored on a “special circuit” (that is no different than every other “special circuit” except, of course, for the information stored in it). You can’t protect that information with a patent. Can you protect a non-obvious “circuit” with a non-obvious structure that is described in the claim by its physical shape/properties (and not by the information content it stores)? Of course.

        Thankfully the district court judge here wasn’t fooled, nor was the particular panel who heard the oral arguments.

        1. Well, MM, in the NOA, the examiner allowed the claims only in the context of a digital imaging system. I think this is a lot more specific that a GP digital computer of Benson, or some chemical process in Flook. It is very much like Alappat.

          I listened to the oral argument. The patentee got steamrolled by the court. He could have done better.

          Lemley was excellent.

          Back to Bilski, why don’t you read the Rubber-Tip case. It seems the claim was “functional” in the same way the claim to the machine for cutting ice in blocks was functional in Wyeth v. Stone. There was no requirement in the claim for any specific form for the rubber head, or that it be attached to a pencil. It was claimed at a functional level. That is why it was abstract, as much as rubber erasers were old.

          I think the problem presented by Bilski is that the claims there were not functional, nor were they directed to Hedging as a basic concept. They were specific, as noted by Stevens. In the end, the court relied on the fact that Hedging was old. But, really, if that is all that was wrong with the claim, and not useful Arts, then the case should have been decided under 103.

          1. the examiner allowed the claims only in the context of a digital imaging system.

            The claims do not read on “a digital imaging system”. The claims describe data.

            As I wrote elsewhere, you can’t convert an ineligible claim drawn to “new data about cancer” into an eligible claim merely by chucking in some junk in the preamble about “wherein the data is used in a digital information processing system.” Nor would it make any difference if you specified the city in which the system is located, or the dimensions of the plastic box that houses the system. It’s still a claim to information and it’s still ineligible for that reason.

            1. You forgot about the preamble Malcolm.

              As I posted very early in this thread, one of the two critical questions is whether the preamble breathes life into the claim.

      2. data being new and non obvious and functional

        What’s “non-obvious” about the data described in this claim? Is it unexpected that the described data would be useful?

        Also, all data is “functional” once the data is understood. Data in a schoolbook is functional — it functions to educate people who read the book. Descriptive data describes stuff. That’s a “function”. So what? It’s still ineligible. It doesn’t matter if the information is worth ten trillion dollars, nor does it matter if ten billion copies of a book containing the non-obvious inforomation were sold in two days. It’s ineligible subject matter. You can’t protect it with a patent.

        1. Also, all data is “functional” once the data is understood.

          LOL – clearly not understood by Malcolm.

          But you sure do kick up some pretty dust.

          I am sure that you know the difference between your pseudo-‘functional’ of words in a book and the controlling law as to the exceptions to the judicial doctrine of printed matter.

          Why don’t you provide that instead of your attempts here to dissemble?

  5. LOL – Malcolm’s AOOTWMD in full bloom:

    What’s the plan going forward? More of the same endless semantic garbage and b.s. scripts that only sound good in an echo chamber?

    1. Your self-delusion has got the better of you again, Tr0llb0y.

      Listen to the oral arguments. Lemley won, bigtime. The arguments he’s making are reasonable and compelling. They are the same arguments that I and others make here all the time when we explain to you why the junky computer-implemented junk that y0u love to fluff is … junk.

      The patentee’s attorney went with your approach: self-serving b.s. and dust-kicking.

      So how are you advising your imaginary clients, Tr0llb0y, when they come to you asking if they can patent a “data structure” or a “device profile”? Let everybody know. Then answer the question I asked you about the filing cabinet claim, an obvious straightforward question arising directly from your buddy NWPA’s assertion that so-called “data structures” and “filing cabinets” should be treated equivalently by our patent system.

      Or you can just continue to kick up dust, insult people and lie. That’s what a childish whining crybaby would do, of course. And that’s what I predict you will do because … you’re a childish whining crybaby.

      But go ahead. Surprise everybody.

      1. Lemley is judicial activist. Clearly. Lemley should go to Congress and not the Courts. I admit Lemley is quite a force, but it one of chaos not for good. He harms the patent system with every word that he types or speaks.

        1. Lemley is judicial activist.

          More attempts to change the subject. Notice that the patent teabagger still hasn’t answered the straightforward question he was asked.

          Maybe ask Gene Quinn to help you. He thinks he’s really smart and honest, doesn’t he? Ask him the questions I asked you and see how he responds.

          This is basic, fundamental stuff, folks. Isn’t it fascinating that the patent teabaggers just can’t stand to talk about it? But they sure do love to complain when their self-serving b.s. goes up in flames.

          They are liars. And the proof is right in front you, folks.

          1. Lovely AOOTWMD

            Funny Malcolm, “This is basic, fundamental stuff, folks. Isn’t it fascinating that the [anti]patent teabaggers just can’t stand to talk about it?” exactly describes you.

            You never seemed to want to engage the basic questions that go to the heart of the software patent eligibility issue that I provided to you.

            What’s up with that?

            1. Notice how the teabaggers want to change the subject.

              Anything but answer a very straightforward question directly raised by an assertion from their own mouths.

              They’re liars, folks. Don’t let them make a fool out of you.

            2. LOL – as if your massive CRPfest here was not geared to try to change the subject?

              Imagine this, Malcolm – imagine that you actually join a legal conversation without your short script and in just a small amount of intellectual honesty.

              You would not have to bulldoze the thread as you have done here. Mostly because you would not have much to say, being as the law and the facts do not support your curse-sade.

  6. One of the w@nkers below just wrote this:

    Holding data structures ineligible is like holding filing cabinets ineligible.

    Here’s a question for the professional softie woftie patent attorneys out there who aren’t path0l0gical liars: what will happen to the following claim in court and why?

    1. An improved filing cabinet, wherein said improvement is a piece of paper comprising information stored in the cabinet, wherein said information is [insert new, useful non-obvious information here].

    Is that eligible for patenting? Is it patentable? If the answer to either question is no, please explain why and include the underlying policy behind any case law or “doctrine” that you rely on.

    Let’s see how intelligent and honest these softie woftie types are. This is exactly the kind of conversation that you’ll never find over at Big Gene’s place. And we all know why.

      1. I just engaged with you below. You ran and decided to create a new hypo. No thanks. I just beat the hairy hide off your APE back. Please go below and respond then I will consider engaging you another useless interchange with a dim-witted APE.

        1. I just beat the hairy hide off your APE back.

          The ability to self-delude is really impressive.

          You ran and decided to create a new hypo.

          This “new hypo” is just an obvious direct question in response to your self-serving b.s.

          But go ahead and pretend otherwise. It’s one of those things that you patent teabaggers love to do. You have to do it, in fact, because otherwise you’re lies would be painfully obvious to everyone.

          So go ahead and pretend that everyone who disagrees with your self-serving b.s. is “ignorant.” That’s really impressive to watch. Judges are impressed by it, especially — right?

          Did you listen to the oral argument?

  7. Are there any patent attorneys out there who are advising their clients that so-called “data structures” or “device profiles” are eligible for patenting?

    If so, how do you justify doing so? Do you say that they must be eligible because that’s your personal fantasy about what should happen?

    There’s lots of pathetic whining in this thread about from the usual patent fluffers who never saw a piece of computer-implemented junk they couldn’t embrace. But the only argument for the eligibility of the junk here is that “it’s useful.” That’s meaningless, of course, because there’s all kinds of useful information that isn’t eligible for patenting. Everbody knows that (even if the liars who love junky patents refuse to admit it).

    Anyway, I would love to hear an answer to my question from an actual practitioner who isn’t a lying soci0path. Personally, I would never advise my client to waste money patenting a “data structure” or a “device profile.” That’s because I respect my clients. But what are the softie woftie practioners telling their clients? Are you guys still banking on impeaching (or “dismissing”) all the judges how disagree with you or what? Are you going to continue to pretend that none of these smackdowns are happening? What’s the plan going forward? More of the same endless semantic garbage and b.s. scripts that only sound good in an echo chamber?

    1. So, basically, the technical reality of claimed data structures made you run and make a new post because you lost below?

      By the way, nice conflating of my arguments with what I advise clients. My advice to clients includes an estimation of what the PTO, dist. ct., fed. cir., and SCOTUS are likely to do.

      Sheesh. You have no morals.

      1. My advice to clients includes an estimation of what the PTO, dist. ct., fed. cir., and SCOTUS are likely to do.

        Golly, what a brave (non-)answer to a specific question! LOL.

        But typical of the softie wofties, no? The ability of the patent teabaggers to delude themselves is well-practiced, indeed. It didn’t work too well in the oral arguments in this case, though, did it? But let’s all pretend otherwise because we don’t want to hurt the fee-fees of these sooper dooper self-important “innovators”.

        1. It didn’t work too well in the oral arguments in this case, though, did it?

          Are you referencing the same oral arguments that “your side” made some pretty critical admissions?

          LOL – Malcolm being Malcolm and self-FAILing again.

        2. Notice how the s0ci0path can’t answer the question but tries instead to change the subject.

          Pretty pathetic. Is this t00l the best you got, softie wofties? Seriously? Because you’re going to have to do a lot better. What are you going to answer when the judge asks you this question in court? Because it’s a very reasonable question to ask, especially if your position is that a “data structure” is eligible for patenting because … “the word structure is in the name”!

          Time to grow up, softie wofties.

  8. How desperate and deluded are the softie wofties and junk computer-implementer types?

    They are so desperate and deluded that they will argue that if you can “make” X, then X is a patent-eligible “manufacture”. And, yes, that includes data.

    Try to believe it. Man, it’s fun watching the hammer pound these m0r0ns and their kindergarten-grade “theories” into pulp. It should have happened a long time ago, of course. What in the world was the USPTO thinking? Answer: they weren’t thinking at all. They were just coddling their childish softie woftie “clients” and gulping down whatever b.s. got served to them.

    1. Another top post by Malcolm with, hmm, anything added?

      Hmmm, let’s see…
      looking…
      looking…
      looking…

      Trying to find something here beyond the typical Malcolm QQ, some tiny glimmer of a legal or factual piece of anything…

      Nope – nothing added.

      At all.

      Great job Malcolm. Lovely soapbox you have.

  9. This case has the potential to be very important and damaging to the softie woftie crowd. If nothing else, the oral arguments show that the Federal Circuit — including Judge Moore — really are starting to understand the extent to which the softie wofties are engaging in pure semantic baloney.

    Positively baffling that this kind of junk wasn’t tested and tanked twenty years ago. The USPTO should never have gotten anywhere close to granting this sort of garbage. But they did.

    Does anybody here think that one can patent a virtual object? That would be a sad joke indeed.

    1. Hmmm, let’s see…
      looking…
      looking…
      looking…

      Trying to find something here beyond the typical Malcolm QQ, some tiny glimmer of a legal or factual piece of anything…

      1. tiny glimmer of a legal or factual piece of anything…

        Data structures aren’t eligible for patenting, Tr0llb0y.

        That’s because they aren’t structures.

        Is this difficult for you to understand? You seem to be having great difficulty with it. Why?

        1. Maybe because the only thing I have seen from you is QQing and nothing at all from a person having an ordinary skill in the art to which the invention pertains.

          Not a glimmer.

          1. a person having an ordinary skill in the art to which the invention pertains

            News flash: there is nothing that a “skilled artisan” can do or so that will make “data structures” eligible for patenting.

            That’s because they aren’t structures. They’re just data.

            It’s funny that you can’t just admit this.

            Let’s imagine that you actually have a client. He/she comes to you and wants to patent a “data structure”. What do you tell them, Tr0llb0y? Do you just lie to their face and take their money?

            1. Newsflash: your RQ/HD “I say so” routine is meaningless.

              You might try putting forth an actual legal position – you know, like I have done here at 1.1.2.

              That is, if you aren’t afraid….

            2. your RQ/HD “I say so” routine is meaningless.

              Sorry, Tr0llb0y. It’s not “meaningless” to simply state a fact.

              So-called “data structures” aren’t structures. They’re data. And their ineligible for patenting.

              You’re lying s0ci0path behavior inevitably runs you up a brick wall. You see that, don’t you? You keep telling lies and then when the courts school you you pretend that it didn’t happen. That’s why you still can’t admit the basic truth about the Prometheus case: you can’t protect a new idea but tacking a step of thinking about the idea onto some otherwise eligible but old process step. Do you lie to your (imaginary) clients about that, too?

              Go ahead and ask your daddy Big Gene if he thinks that “data structures” are eligible for patenting. Let everyone how Mr. Honesty answers that question.

            3. That is hilarious that you use the word “data” without “structure.”

              What an APE. Holding data structures ineligible is like holding filing cabinets ineligible.

              Only ignorant judges would do such a thing–but then we know the Fed. Cir. is stacked by O’Bummer with ignorant judges.

            4. Do you agree with this, Tr0llb0y? A simple yes or no will suffice.

              Tell me about the controlling law as it pertains to the exceptions to the judicial doctrine of printed matter.

              Even a simple yes/no question from you is an attempt by you to not accept controlling law.

              You made a big deal the other day, accusing me of thinking everything is about me. Why then are you insisting that I make everything about me?

              Tell me Malcolm what is the law?

              …and no, I am not asking for an ad hominem response – I am asking for an objective legal response.

              Do you think that you can handle a direct, straight forward, intellectually honest legal response that does not dive into your typical trite and overused scripts?

              Too much to ask of you?

    2. A special purpose computer can be made to implement the method and the data structure. One skilled in the art would immediately recognize that.

      MM: please stop your nonsense. At least try to be remove eligibility through honest arguments.

      1. A special purpose computer

        A special purpose computer isn’t a “data structure.” You know that, of course.

        Lying doesn’t work for Tr0llb0y and it doesn’t work you.

        Why do you lie, NWPA? Does it make you feel good?

        1. I think we have hit on your lack of understanding of computers here MM.

          So, the data structure bothers you? And where do you think it would be implemented? The only place is a computer. So, of course to one skilled in the art when you read data structure you only see one implementation–that is with a computer. Scope of enablement. Where else do you imagine this data structure being used? A brain?

          Again, your intentional mixing of brains with computers. A machine that does what brains do–process information. Madness to say they are ineligible.

          1. So, the data structure bothers you?

            I’m not bothered by so-called “data structures” at all.

            But they aren’t eligible for patenting. That’s because they aren’t structures at all. They are data.

            You aren’t going to admit this? Are you that childish and dishonest? Seriously?

            1. data structure—why do you think they use the word structure?

              A special purpose computer can be built that uses these data structures. Circuits just to store and retrieve data using these STRUCTURES.

              Sheesh. You are so ignorant of ee/cs that I am surprised you can type.

            2. You know you APE, that ALL the methods and ALL the data structures you’re little brain has been screaming about correspond to special purpose computers that can be built just for those claims that make your APE brain scream.

            3. ALL the methods and ALL the data structures you’re little brain has been screaming about correspond to special purpose computers that can be built just for those claims that make your APE brain scream.

              That’s your argument for patenting data?

              LOL. Run with that, gramps.

    3. The problem, anon, is Bilski. Until that case is clarified, there is no legal basis for holding claims of this ilk ineligible.

      See my recent discussion with anon about Frederico and Rubber-Tip. Of all things, Bilski was about prior art!!!!!!!!!! Hedging was KNOWN.

      You got to be kidding me. But that is what Kennedy and crew decided.

  10. At the end of the day the oral arguments in this case evince such ignorance of science that I’d support the dissolution of the Federal Circuit.

    1. At this point it probably makes sense to dismiss all the patent judges as well. It appears that CJ Smith may be stacking the PTO.

  11. Time and again anon state that congress intended to remove 101’s invention requirement from the purview of the courts in enacting 103. Let us review the record. I quote from Frederico:

    “As pointed out in the Committee Report, it has been recognized for well over a hundred years that not everything which is new is capable of being patented. The newness, that is the difference over what was previously known, must be sufficient in character, or in quantity, or in quality, in order that the new thing may be patented. This requirement has commonly been referred to as the requirement for the presence of invention; when the requirement is not present it is stated that the subject matter involved lacks invention. The comparison is between the subject matter claimed to be patentable and what is disclosed or described in the available statutory prior art material, and it is irrelevant whether the claimant knew or did not know this prior art material. The inventor may indeed have made an invention in the psychological sense, but it would nevertheless not be patentable if the quantum of novelty over the prior art material of which he may have been in total ignorance was not sufficient. This requirement for invention with which we are here concerned is more of a legal concept than a psychological one.

    The source of the requirement under the prior statute has been variously attributed. The opening clause of old R.S. 4886 which specified the classes of patentable subject matter (see section 101), began “Any person who has invented or discovered any new and useful art, machine, etc.” Two requirements may be found here: novelty (although novelty is further defines to referring to the conditions which defeat novelty), and utility (which condition is not further defined). The use of the word “invented” in this phrase has been asserted as the source of the third requirement under discussion. However, a different origin, with which the language and arrangement in the new code are in harmony, has also been stated. This is that the requirement originally was an extension of the statutory requirement for novelty. Expressions such as “patentable novelty” and “patentable difference over the prior art” have been often used as synonyms, and the problem involved is in fact an assessment of the quantum or quality of the novelty present. The famous “doorknob case” in the Supreme Court, Hotchkiss v. Greenwood, 52 U.S. (Dec. term, 1850), is usually cited as the first case to make requirement. “

      1. It certainly does, anon, because it shows that 103 is an aspect of novelty, not 101 invention. It was understood that way by Frederico. He cited to Hotchkiss v. Greenwood. So did Graham v. John Deere.

        Now the first statutes expressed novelty in terms of not being known or used by others. This is prior art. The problem that something could almost disclosed in the prior art, but not quite, is what was at issue in Hotchkiss and is at issue in 103.

        Thus Frederico came down on the side that 103 was a further limitation on novelty, on 102. It had nothing to do with 101 eligibility, particularly the requirement there for invention.

        Your insistence, therefore, that 103 cabined the Supreme Court inquiry into 101 invention, or any other requirement of 101 for that matter, is not consistent with the record as explained by Frederico who, after all, was the principle architect of the ’52 Act.

        Feel free to discuss.

        1. Ned,

          It does not show that at all – it shows that at best multiple viewpoints existed – and the terminology was tied to both what is muddled in 101 and the novelty aspect that even YOU have of late attributed to 101 – your oddly newly created fixation on the word ‘new’ in 101.

          You are clearly off your rocker and way out of your league on this stuff.

          What next for you? What ‘new’ creative theory will you concoct in order to advance your Pogrom against business methods?

          1. anon, the only other case Benson cited that did not original in Morse or Le Roy v. Tatham is Rubber-Tip Pencil Co. v. Howard , 87 U.S. 498, 22 L. Ed. 410 (1874). The issue in the case was whether a rubber head for lead pencils was patentable as a manufacture. The patent was not sought on the combination of a lead pencil and a rubber tip. It was sought on the rubber head per se. There was no particular claim to any particular form of the rubber head. Anything that worked was covered.

            The question presented was under what we now know to be section 101. There is no question of “novelty” involved in the case as there was no issue of prior art at all. After analyzing all the facts, the court ended its discussion with this:

            “An idea of itself is not patentable, but a new device by which it may be made practically useful is. The idea of this patentee was a good one, but his device to give it effect, though useful, was not new. ”

            Note the statutory link, Mr. anon. Yes that is right Mr. anon, the statutory link is “new.”

            1. As I said Ned – your own rants work against you.

              Again – here – you want “new” to be a 101 thing. You just got done trying to say that I was wrong in how Congress in creating 103 carved this notion out of 101 and that same 101 thing you want to depend on.

              You simply cannot have it both ways.

          2. Anon, I think Frederico was trying to make clear that the sole issue involved in section 103 were issues involving prior art, not invention. When something was identically disclosed in the prior art, it was anticipated. When something was disclosed in multiple references, the issue is whether they could be combined. Frederico was saying that section 103 was all about prior art, and not about “invention” or anything else and 101.

            Now if there was a debate on whether the whole of section 101 “invention” considerations were folded into section 103, that debate is somewhat settled by Frederico’s testimony and his commentary. Your continued insistence that you are right and everybody else is wrong on what was intended by Congress in passing 103 cannot stand. It is not consistent with what Frederico stated was intended.

            Moreover, Frederico specifically cited Hotchkiss as a source of the rule. And what they Graham cite as well? The same case. Hotchkiss.

            So we have the Supreme Court on record as well that the source of the rule in 103 is Hotchkiss, thereby supporting Frederico’s interpretation. Even if Judge Rich were to argue that there is no “101” newness consideration separate and apart from prior art, that issue has been effectively decided by the Supreme Court not only in Benson with its reference to the Rubber-Tip case, which based its statutory holding on newness, but also on Flook and footnote 15 which also said that the statutory basis for Benson was “newness,” and Myriad, that expressly held that the statutory basis for its holding was “newness.”

            1. It is not my reliance that “everyone else is wrong.”

              My reliance is merely that your view of “everyone else” is wrong.

              There is a HUGE difference between the two.

            2. Ned, the whole point of 102 and 103 and 112 was to sort these issues out so that we don’t get these convoluted tests for 101.

              We. All. Know. That. Only those that are trying to burn down the system argue differently.

            3. Ned refuses to understand exactly what stability Congress was aiming for.

              Tell us Ned – what exactly was the stability that Congress was aiming for. What fantastically unstable 102 item was there that drove the umbrage of Congress to react against the Holy Nine?

    1. Ned’s over-reading and under-understanding is immediately evident in his own post on Frederico in which Ned only sees that which he wants to see and dismisses all else.

      Here in the immediate words, Frederico is NOT proclaiming that Ned’s view must be the right view.

      Look at the actual words. All that Frederico is doing is listing several views. He makes NO pronouncement that one view rises above any other view.

      Key words to keep in mind are emphasized in bold:

      “As pointed out in the Committee Report, it has been recognized for well over a hundred years that not everything which is new is capable of being patented [contrast with Ned's obsession of the 'new' of 101]. The newness, that is the difference over what was previously known, must be sufficient in character, OR in quantity, or in quality, in order that the new thing may be patented. This requirement has commonly been referred to as the requirement for the presence of invention; when the requirement is not present it is stated that the subject matter involved lacks invention. The comparison is between the subject matter claimed to be patentable and what is disclosed or described in the available statutory prior art material, and it is irrelevant whether the claimant knew or did not know this prior art material. The inventor may indeed have made an invention in the psychological sense, but it would nevertheless not be patentable if the quantum of novelty over the prior art material of which he may have been in total ignorance was not sufficient. This requirement for invention with which we are here concerned is more of a legal concept than a psychological one.

      The source of the requirement under the prior statute has been variously attributed. The opening clause of old R.S. 4886 which specified the classes of patentable subject matter (see section 101), began “Any person who has invented or discovered any new and useful art, machine, etc.” Two requirements may be found here: novelty (although novelty is further defines to referring to the conditions which defeat novelty), and utility (which condition is not further defined). The use of the word “invented” in this phrase has been asserted as the source of the third requirement under discussion. However, a different origin, with which the language and arrangement in the new code are in harmony, has also been stated. This is that the requirement originally was an extension of the statutory requirement for novelty. Expressions such as “patentable novelty” and “patentable difference over the prior art” have been often used as synonyms, and the problem involved is in fact an assessment of the quantum or quality of the novelty present. The famous “doorknob case” in the Supreme Court, Hotchkiss v. Greenwood, 52 U.S. (Dec. term, 1850), is usually cited as the first case to make requirement. “

    2. I give up.

      Anon, I am beginning to agree with you.

      After reading the Rubber-Tip case it simply dawned on me that “abstract idea” of that case was all about newness as in “known.”

      That really is not a 101 issue, but a 103 issue or almost. The problem in Rubber-Tip was that a rubber eraser was known. It was simply not enough to say use it on the tip of a pencil without saying more. That is why it was declared there to be nothing more than an abstract idea.

      Bilski cited that hedging was notoriously old. Then held the claims abstract — ignoring that they did claim specific methods. This is not 101 abstractness, but 103 obviousness.

      I switch sides and join anon. Bilski was wrongly decided.

      I still agree with Stevens, 95%. The problem with Business Method claims is they are not within the useful Arts.

      1. I still agree with Stevens, 95%. The problem with Business Method claims is they are not within the useful Arts.

        Major problem with that is that all three branches of the government have broadly indicated that business methods are within the Useful Arts.

        Stevens was wrong.

        Plain and simple.

        4 is not 5.

        Still.

        (and thank goodness for that, as Stevens view would require the Court to explicitly rewrite the words of Congress in direct violation of the constitution, causing a constitutional crises.

        Reading the map is still not writing the map.

  12. I ask again, why is a copyright on this software not sufficient? Why is a motion picture made for industrial training (e.g. something “useful”) not patentable?

    How does a motion picture for training purposes being played by a computer differ from software being executed by a computer in a meaningful way?

    1. Here is where the Church-Turing Thesis tells us that anything that can be computed is possible with the software. With the movie it is fixed.

      Sheesh.

      1. NWPA the way some software executes is also “fixed” in the code.

        There are DVD presentations of training videos that allow different views, re-ordering chapters, changing of audio tracks, etc.

        Someone the other day raised the loom example, or a machine tool example; the instructions to cut a part are not patent eligible, but the machine and the part very well may be…

        Are there any other examples of economic value that can be both copyrighted and patented? Why is that duality allowed for this one type of human activity and no others?

        1. Martin, the law has to adapt to the technology. Information processing is in many ways unique. It is the same in many ways such as functional claiming, but in other ways it is different.

        2. Someone the other day raised the loom example, or a machine tool example; the instructions to cut a part are not patent eligible
          The loom performing the instructions is patentable as a process.

          Also, the “instructions” don’t exist merely in the ether. They are in integral part of the machine.

          Are there any other examples of economic value that can be both copyrighted and patented?
          All the time. See link to mintz.com

          1. Oh no, the link discusses how to make a useful item copyrightable, not how to make a copyrightable item patentable; indeed it almost makes the opposite point than what you supposed:

            “useful articles” have been defined by statute as those goods “having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”

            That looks to me to suggest that software that merely conveys information may not be ‘useful’ in the legal sense.

            1. looks to me

              “merely conveys information lacks the functional aspect that long has been part of the controlling law to the exceptions to the judicial doctrine of printed matter.

              Once again, Marty, you seem to want to jump up and down over something already known and part of the legal discussion.

              /facepalm

          2. merely conveys information lacks the functional aspect that long has been part of the controlling law to the exceptions to the judicial doctrine of printed matter.

            Note that Tr0llb0y seems to believe that his beloved “controlling law” is something other than an incoherent self-serving pile of gobbledygook.

            All information is useful to somebody in some context. What’s the difference between “functional” and “useful” information?

            Tr0llb0y’s other trick — heavily “relied on” by the incompetent USPTO Examiners who shovel reams of computer-implemented junk out of the PTO on a weekly basis — is to pretend that computers that respond to requests for information by providing information were invented after the filing date of whaever application the Examiner happens to be holding in his hand.

            In other words, in the coddled world of the softie wofties, specific embodiments (and the term “specific” is used very loosely here, as the claims in question are never “specific” but simply functionally claimed junk) of a technological genus (e.g., GPS) are all somehow non-obvious and miraculously enabled, whereas the prior art that plainly taught the use of GPS for locating anything locatable by GPS is somehow not enabled.

            1. Note that Malcolm has nothing to offer in comparison to the controlling law.

              Funny that too, Malcolm, oh “I explain everything,” you never seem to have an answer for the massive dissembling you have done in regards to that controlling law. You even blatantly lied that it even existed and that you even admitted to its existence.

              (and yes, all of this is captured in the now-restored archives)

            2. MM what are you doing? You are responding to a blog post, which is information. So, you are telling us what humans do and must highly value given the amount of time you spend on this board is not eligible for patentability.

              Man oh man. It flows out your ears.

    2. I ask again, why is a copyright on this software not sufficient?

      Marty,

      Ask your counsel to explain to you the different coverage that patents and copyrights provide.

      The two different realms of IP protect different aspects of man’s work.

      I will ask you again – can you copyright math (and note, I am NOT asking if you can copyright a math book)?

      To your second question, you have walked into the fine arts (yes, even a training video is considered fine arts).

      The meaningful way is the distinction between Useful Arts and fine arts. Another thing to discus with your real-life attorney, as you probably should be aware of this so that your attorney can actually be acting with informed consent – it still appears that she is not doing so.

      1. anon answer my question; Are there any other examples of economic value that can be both copyrighted and patented?

        If the answer is, there are none, it SHOULD indicate that that there is something special about software that would be the nexus of this discussion…. what is that something?

        1. Are there any other examples of economic value that can be both copyrighted and patented?

          Anything that has multiple aspects that are covered by the different realms of IP.

          Software is not the only game in town to have crossover effects in different realms. While trademark law has a different constitutional basis, it is considered an IP law and there are several well known cases of crossover there (hint: think traffic signs).

          And whether or not something special exists with software being able to have multiple aspects that can be covered (differently) in multiple areas of IP law has ZERO to do with why the particular aspect of software that fits under patent law is covered by patent law.

          Too clever by half, you are attempting to be. You think that you have stumbled upon some grand point that supports your ideology. You have not. You only highlight your lack of understanding of the law.

          Again, you really should have these discussions with your attorney. You have admitted to being in an active court case and your attorney is acting with an apparent lack of informed consent that should be quite disconcerting to her.

        2. Martin –

          What do you mean by any OTHER? You can’t copyright a patented invention. You can copyright a very specific embodiment of software to help you perform a patented method, but you can’t copyright the method.

          I hope that helps.

          1. anon why do you compulsively need to impute every commenter’s state of mind to their assertions? Maybe I think I have a grand idea or maybe I think I’m asking a trivial question or maybe I have no emotional connection whatsoever to the point; other than your neurotic projection, what difference does it make to the point?

            I will answer your math question: facts are not copyrightable, so to the extent the math you seek to copyright is a fact, the answer is no.

            You avoided my question as usual with mumble jumble about “aspects” of IP law. I asked you if there was any other item that shares software’s duality of copyright and patent, since you can obtain both on the exact same work.

            I presume your answer is No. If you answer is that the same ‘aspects’ are not covered by both patents and copyright, what do you mean by “aspects” since the prohibition of use by others is identical; and the delivered goods in the sale are identical- what other ‘aspects’ have meaning? Is it usage of the goods where in copyright the sale of the goods is enough? If you sell patented software that runs emergency systems and is never used, is that infringement, or not until the software has been run by the buyer?

            Do you want to press forward from there as to what makes software unique in that manner?

            1. anon why do you compulsively need to impute every commenter’s state of mind to their assertions?

              Marty – what does this QQ mean? What do you think that I am “imputing?”

              Seems to me that you are trying to kick up a lot of dust over a simple question.

              What do you mean “to the extent?” Do you still think that software is just math?

              You seem to be pretty shifty and then want to get upset when someone notices how shifty you are being.

              A lot like my pal Reinier. Funny how important one’s actual animus can be in this highly charged debate, isn’t it? Yet, you basically want to say “Pay no attention to that man behind the curtain” in wonderful Wizard of Oz tones. You make a big deal (just like Reinier – except for Reinier’s hypocrisy) about posting without pseudonym, and then want to not let what that lack pseduonym entails to enter the equation. Too bad, so sad, but your bias very much enters the discussion. You cannot whine about it.

              You avoided my question as usual

              Completely untrue. I answered your question directly and even gave you the added bonus of providing other examples in law. Your lack of gratitude is startling. You want to pretend that your non-legally informed way of putting things carries the legal question and such just is not so. It matters not your phrasing of “exact same work” because – as I explained to you – the law covers different aspects of that “exact same work.” Once again, you need to discuss these things with your attorney as your ignorance really shows that she is operating without your informed consent.

              I presume your answer is No.” Why in the H would you do that? Once again my answer is true, complete and valid. If you do not understand this – then both you and your attorney are on thin ice and that is your problem. Don’t try to spit in the eye of someone sharing valuable knowledge with you just because you do not like the message.

              No need to press forward with any such “uniqueness,” as the law is the law and covers under the different realms the different aspects that each law covers. I would press you (and your attorney if she happens to read this) to press forward and come to an informed view of the law.

            2. lol – and your imputation of “compulsively” is firmly rejected.

              There is nothing at all “compulsive” about using the fact of your bias and admitted lack of knowing law to stress the point that your views are pretty much meaningless in a legal sense.

              Sorry that makes you sad. Wait. No, I am not. I have tried to help you and I will not feel sorry for you when you do not realize that I am trying to help you.

              In fact, the ‘compulsive’ behavior here seems more in line with your behavior to carry on this belief system in light of the fact that not only are you ignorant of the law, not only have you admitted being ignorant of the law, but that you refuse to budge from your ignorance of the law. Even as you are in a lawsuit.

            3. “anon why do you compulsively need to impute every commenter’s state of mind to their assertions?”

              He’s trying really hard to understand other people’s thoughts and feelings lately since it has been brought to his attention that he is a psychopath and has trouble doing so.

              I must grant him that he does try, though he fails in this endeavor nearly every time due to his malady.

    3. I ask again, why is a copyright on this software not sufficient?
      A computer program is a mixture of function and expression. The functional portion is protectable by patent — the expression portion is protectable by copyright.

      This ties into why the law doesn’t require disclosure the specific computer code to implement the function. The specific computer code is just one copyrightable expression of the function. Those skilled in the art are typically more than capable of generating the code — any of which may be separately copyrighted.

      I would expect a 2L taking an introductory class to intellectual property to “get” this fairly easily. Why are you having troubles?

        1. I think res ipsa loquitur on “compulsive” by a perusal of these many threads.

          I said math is not copyrightable of the math is a fact: do you want to supply any context to that answer that so desired so much?

          Your notion that an attorney’s clients need to be experts in order to secure legal services is a real laugher. Maybe a mini-bar exam to meet your lofty standards of “informed consent”. You are too much. Our lawyer will win just the same with her deluded clients….

          1. LOL – Marty throwing out Latin as if that makes what he says any less ridiculous. Priceless.

            Did you sleep at a Holiday Inn last night as well?

            /facepalm

            do you want to supply any context to that answer

            Sure. The large majority of lemming anti-software patent folk crow two things in unison: “Copyright is enough” and “Software is math.” Clearly, the admission that software is math andyou cannot copyright math puts a rather large damper on the proposition that “copyright is enough.”

            Even you a non-lawyer should be able to follow that.

            My notion is not “attorney’s clients need to be experts.” You quire miss the point there. The notion is that your attorney cannot act on your behalf without informed consent. Your views expressed on these boards exhibit such a degree of being uninformed that a serious question as to your attorney acting on your behalf is raised. No one said anything about “expert.” The points I share with you are not dependent on any such classification as “expert” (although you appear to be implicitly recognizing me as an expert – Thanks).

            1. I never used the argument that software is math, you clearly CAN copyright software, so it can’t be math, can it?

              I say it’s fixed written expression and not a composition of matter or a process that changes any composition of matter. The argument that software is math is pointless, IM very HO. Happy now?

            2. Maybe you missed the part wherein I said “The large majority of lemming anti-software patent folk crow two things in unison: “Copyright is enough” and “Software is math.”

              Pay attention.

              And by the way, “fixed written expression” makes it a manufacture.

              Check out the presence of that word in 35 USC 101.

              I am always happy Marty. The better question is: are you finally understanding this law thing?

      1. Why are you having troubles?

        Marty has admitted not to being a lawyer (and implicitly, not even caring what the law actually is).

        The more troubling thing is how the likes of Malcolm and Ned – supposedly practicing attorneys in this field seem to have such trouble with this basic notion.

      2. Well the 2L’s on the Supreme Court seem to be between Scylla and Charybdis on this precise question. The law also says that a claim that describes a function alone is not sufficient, and per your link above, that the conveyance of information is not considered a “useful” expression.

        If this was so easy, there would not be such raging debate about it, would there be?

        1. If this was so easy, there would not be such raging debate about it, would there be?

          (sigh) – Marty you seem to want to ignore the fact that certain groups of people have vested interests in mucking this up and making it “not so easy.”

          The fact that you are active in this regard – even as you admit to not knowing the law – paints you as a t00l of such factions.

          Congrats on that.

            1. LOL – petty semantics is all that you could come up with, Marty?

              Let me guess, you did not even sleep at a Holiday Inn last night, did you?

              Have you had that discussion with your attorney yet?

            2. work
              wərk/Submit
              noun
              noun: work; plural noun: works; plural noun: the works
              1.
              activity involving mental or physical effort done in order to achieve a purpose or result.
              “he was tired after a day’s work in the fields”
              synonyms: labor, toil, slog, drudgery, exertion, effort, industry, service; More
              antonyms: leisure, rest
              a place or premises for industrial activity, typically manufacturing.
              “he found a job in the ironworks”
              2.
              mental or physical activity as a means of earning income; employment.
              “I’m still looking for work”
              synonyms: employment, a job, a position, a situation, a post; More
              antonyms: unemployment, retirement
              the place where one works.
              “I was returning home from work on a packed subway”
              the period of time spent during the day engaged in such activity.
              “he was going to the theater after work”
              3.
              a task or tasks to be undertaken; something a person or thing has to do.
              “they made sure the work was progressing smoothly”
              the materials for this.
              “she frequently took work home with her”
              informal
              cosmetic plastic surgery.
              “between you and me, I think he’s had some work done”
              THEOLOGY
              good or moral deeds.
              “the Clapham sect was concerned with works rather than with faith”
              synonyms: deeds, acts, actions More
              4.
              something done or made.
              “her work hangs in all the main American collections”
              synonyms: handiwork, doing, act, deed More
              the result of the action of a specified person or thing.
              “the bombing had been the work of a German-based cell”
              a literary or musical composition or other piece of fine art.
              “a work of fiction”
              synonyms: composition, piece, creation; More
              all literary or musical pieces by a particular author, composer, or artist, regarded collectively.
              “the works of Schubert fill several feet of shelf space”
              synonyms: writings, oeuvre, canon, output More
              a piece of embroidery, sewing, or knitting, typically made using a specified stitch or method.
              MILITARY
              a defensive structure.
              an architectural or engineering structure such as a bridge or dam.
              the record of the successive calculations made in solving a mathematical problem.
              “show your work on a separate sheet of paper”
              5.
              the operative part of a clock or other machine.
              “she could almost hear the tick of its works”
              6.
              PHYSICS
              the exertion of force overcoming resistance or producing molecular change.
              7.
              informal
              everything needed, desired, or expected.
              “the heavens put on a show: sheet lightning, hailstones—the works”
              synonyms: everything, the full treatment; More
              verb
              verb: work; 3rd person present: works; past tense: worked; past participle: worked; past tense: wrought; past participle: wrought; gerund or present participle: working
              1.
              be engaged in physical or mental activity in order to achieve a purpose or result, esp. in one’s job; do work.
              “an engineer who had been working on a design for a more efficient wing”
              synonyms: toil, labor, exert oneself, slave (away); More
              antonyms: rest, play
              be employed, typically in a specified occupation or field.
              “Taylor has worked in education for 17 years”
              synonyms: be employed, have a job, earn one’s living, do business More
              (of an artist) produce articles or pictures using (a particular material or medium).
              “he works in clay over a very strong frame”
              produce (an article or design) using a specified material or sewing stitch.
              “the castle itself is worked in tent stitch”
              set to or keep at work.
              “Jane is working you too hard”
              cultivate (land) or extract materials from (a mine or quarry).
              “contracts and leases to work the mines”
              synonyms: cultivate, farm, till, plow More
              solve (a puzzle or mathematical problem).
              “she spent her days working crosswords”
              practice one’s occupation or operate in or at (a particular place).
              “I worked a few clubs and so forth”
              make efforts to achieve something; campaign.
              “we spend a great deal of our time working for the lacto-vegetarian cause”
              2.
              (of a machine or system) operate or function, esp. properly or effectively.
              “his cell phone doesn’t work unless he goes to a high point”
              synonyms: function, go, run, operate; More
              (of a machine or a part of it) run; go through regular motions.
              “it’s designed to go into a special “rest” state when it’s not working”
              (esp. of a person’s features) move violently or convulsively.
              “hair wild, mouth working furiously”
              synonyms: twitch, quiver, convulse More
              cause (a device or machine) to operate.
              “teaching customers how to work a VCR”
              synonyms: operate, use, handle, control, manipulate, run More
              (of a plan or method) have the desired result or effect.
              “the desperate ploy had worked”
              synonyms: succeed, work out, turn out well, go as planned, get results, be effective; More
              antonyms: fail
              bring about; produce as a result.
              “with a dash of blusher here and there, you can work miracles”
              synonyms: bring about, accomplish, achieve, produce, perform, create, engender, contrive, effect More
              informal
              arrange or contrive.
              “the chairman was prepared to work it for Phillip if he was interested”
              synonyms: arrange it/things, manipulate it/things, contrive it; More
              exert influence or use one’s persuasive power on (someone or their feelings).
              “she worked upon the sympathy of her associates”
              synonyms: persuade, manipulate, influence; More
              use one’s persuasive power to stir the emotions of (a person or group of people).
              “the born politician’s art of working a crowd”
              3.
              bring (a material or mixture) to a desired shape or consistency by hammering, kneading, or some other method.
              “work the mixture into a paste with your hands”
              synonyms: knead, squeeze, form; More
              bring into a specified state, esp. an emotional state.
              “Harold had worked himself into a minor rage”
              synonyms: stir (up), excite, drive, move, rouse, fire, galvanize; More
              4.
              move or cause to move gradually or with difficulty into another position, typically by means of constant movement or pressure.
              “comb from tip to root, working out the knots at the end”
              synonyms: maneuver, manipulate, guide, edge More
              maneuver, make, thread, wind, weave, wend
              (of joints, such as those in a wooden ship) loosen and flex under repeated stress.
              SAILING
              make progress to windward, with repeated tacking.
              “trying to work to windward in light airs”
              Origin

    4. Martin, consider the copyrighted map showing the world round and India across the Atlantic.

      The likes of Night, anon and their fellow travelers would assert that the building of a ship, following the map and finding “India” is patentable subject matter because the map is copyrighted, a Ship is an article of manufacture and discoveries are eligible.

      1. Very bizarre Ned – and in no way connected to the actual positions made for the law and the actual facts present.

        1. anon, but to some of us, your disconnected, illogical arguments are of the same ilk. Being copyrightable says nothing about whether software is patentable. The software that is copyrightable must be readable by a human, and is a work of authorship.

          1. (sigh)

            Ned I have explained to you why I used the copyright reference. That you want to ignore that explanation is not an indication of my arguments being disconnected or illogical in any manner. The singular notion was the fact of it being in a fixed media – thus necessarily having structure – and necessarily not being something that was “totally in the mind.”

            When you run away from what I have presented, you cannot then blame me for your running away.

            1. anon, but what ever it structure it has, does not necessarily mean that that “structure” has anything to do with the functions described by the instructions encoded. In point of fact, the particular structure of software embodied in whatever media upon which it is encoded, which typically includes pencil and paper, as that is the form in which software is deposited for copyright purposes, has absolutely nothing to do with its functionality.

            2. Ned, again you are simply wrong.

              This is nothing more than common sense – or your lack of it.

              Software works. Ergo, there must be a functional relationship between the structure and the final item.

              MUST BE.

              If there were no functional relationship, then software would not be bothered with.

              The ability that you demonstrate to stick your head in the sand and ignore reality is amazing.

              You draw a strawman argument that defeats your view. You wish to emphasize “particular strucutre” as if that saves you – but you neglect the fact that in the patent realm structure is not so limited to the single particular structure. This not-being-limited-to-a-particular-structure is NOT the same as denying any structure. Therein is the straw to your strawman, Therein lie the fallacy that you wish to distract with smoke and mirrors.

              You scream pay no attention to the man behind the curtain, neglecting the plain truth that reality means that software must have structure, but that the particular structure can take any very great number of forms and still be equivalent.

              This leads directly to the fact that simply must be accepted for the fact that it is: software is equivalent to firmware and is equivalent to hardware.

              There is no escaping the reality that such is simply true.

  13. How about Dennis you put a condition in there that everyone gets to post at most 3 comments per post?

    1. put a condition in there that everyone gets to post at most 3 comments per post

      And reduce anon to three rants about how Dennis voluntarily self-admitted that he knows the controlling exceptions to that condition?

      Actually, yeah. Do that. Sounds like a good laugh.

      1. LOL – Leave it IANAE to take another Calvinball face spike.

        You are all about the ‘good laugh,’ aren’t you IANAE? Funny you have not been laughing all that much since you were hammered with an outright statement advocating infringers’ rights quite a while back.

        You know, the archives are back up – I bet we could find that quote with just a little effort.

        Why don’t you do so – you know, just for jollies.

    2. “How about Dennis you put a condition in there that everyone gets to post at most 3 comments per post?”

      Would you just combine all of your normal posts on how Lemley is the devil, the CTT means all softwarez are invalid under 101 or none are, and how much drivel MM posts into one post so you’d have two more left over per thread?

      Well, you’d blow one of them calling MM an ape.

      And then you’d probably blow the other one telling us your newest theory about what the “structure” referred to by software claims is. Let’s see, first it was the “algorithm”, then it was the “physical structure”, and now lately you’ve been stating that the structure is actually the equivalent specialized hardware-implemented computer’s structure rather than the actual structure of the “instructions” in a programmed computer that are usually mentioned. Yeah, can’t wait to hear what your next theory is. Perhaps the next “structure” of such claims is actually going to be the “structure” of the paper upon which the patent app is written, and that structure will supposedly have a functional relationship with the “instructions” written thereon, thus imparting patent eligibility and patentability to the instructions. Amirite? I’m sure I’ll find out in the next of your 3 posts you’re limited to on the next thread.

      1. 6, I don’t call MM an “ape.” I call him an Anti-Patent Entrepreneur (APE).

        And, my way of explaining structure has changed. That doesn’t mean the other ways were wrong only that I have improved my arguments to allow less wiggle room by the anti’s.

        And, I don’t think Lemley is the devil incarnate. I think he believes that he is a liberal crusader saving our system from patents by fabricating facts and the law. I think he is not a scholar. His paper on functional claiming is a shameful display of providing a justification for judicial activism. I think he has taken advantage of his position at Stanford for self aggrandizement. He also is someone that is standing on the shoulders of Richard Stern. Clearly Stern passed the torch of darkness to Lemley. I think the two have cost the U.S. economy well over a trillion dollars. I think he is probably a genius just like Stern, although Stern from my personal experiences with him is likely smarter.

        1. Night, anyone who advocate a conservative position on patents is a liberal?

          Man have we got our notions backwards.

          The most radical patent expansionist ever was Rich. He was a republican, but clearly not a conservative. Conservatism is the ideology of the British at the time of the French revolution. Radical changes are to be avoided.

        2. “And, my way of explaining structure has changed”

          Yeah, no kidding. You move the goalposts just like everyone else trying to prop up the house of cards software patents are built on. Every time people call you on your bs, your kind relents on x bs “argument”, and then you raise another bs shield. “Physical structure is being claimed” “oh, if not, then there’s implicit limitations!” “oh, and if not, we’re really talking about the algorithm!” “Oh, and if not, we’re actually talking about a specially designed hardware implemented computer!”. The bs shields seem to never end even though they get more laughable each time. The sheer number of them that must be cut through in a given contest stops there ever being meaningful engagement. All you do is fall back and hope the other side is too retarded to be able to respond to the next, even more laughable, “argument” you toss out. The only thing people assailing you should need to do is pin you down on one of them, knock that over and be done with your dumas.

          “That doesn’t mean the other ways were wrong only that I have improved my arguments to allow less wiggle room by the anti’s.”

          Many folks other than yourself have relented on the “other ways” in my own experience. Then they fall back to even more laughable positions, some of which you’ve put forth, some you haven’t yet. The squirming goes on and on and on where they eventually get the last word in and some pro-patent court or board generally views their nonsense favorably in an attempt to save the patent in the name of “law”. Just listen to the judges attempting to make excuses for the data patent being eligible in the oral args, and then thankfully failing. The Federal Circuit is showing themselves to be a pathetic excuse for a judiciary body in so far as they’re constantly looking for an excuse to uphold a patent rather than giving both parties a fair shake. They always put their thumb heavily on the side of validity, far beyond what a mere “presumption” should give.

          In either event, your constantly changing narrative doesn’t present us “anti’s” with less wiggle room, it presents us with ever increasing wiggle room re re. As your excuses and bs shields constantly evolve, they are always getting weaker and more preposterous. Sure, there are more to cut through, but they grow more laughable by the year. Maybe a few hundred thousand more apps issue, maybe a couple million, but that’s small potatoes, the issue will slowly wind itself down. Soon more and more retards like yourself will die off, and there will be fewer and fewer to replace you as the younger generation is better educated and informed and starts to understand the history of what has occurred and see the effects thereof. The government moves sloooooooowly.

          “And, I don’t think Lemley is the devil incarnate. I think he believes that he is a liberal crusader saving our system from patents by fabricating facts and the law. ”

          Anyone that “saves our system” by “fabricating facts and the law” is pretty fuc king “evil” brosef. You can’t say in one sentence you don’t think he is evil, and then in the next say that you think he’s doing something that is, from the way you put it, pretty blatantly “evil”. Maybe you just don’t know what “evil” means? Evil – profoundly immoral or malevolent.

          In any event, it’s odd to see that you think he’s a genius.

          Either way ffs old man, of course you “got through to me” and every other reader of the blog. You’ve spouted your nonsense a thousand times, we all got it the first time, or the second maybe for people that have a hard time reading. You don’t have to tell us a thousand more times.

          1. You don’t have to tell us a thousand more times.

            Apparently 6, Malcolm, Ned, nor you really understand this point.

            (hence, the replies to the CRP that is posted keep acoming)

          2. 6, you haven’t really gotten it yet. But, I can see I am working on your mind. I feel empowered.

            6, changing my arguments on structure is not conceding they are BS, but realizing that my old arguments provided too many wormy specious counter arguments that the ignorant could not easily see through. I support all my old arguments on structure, but my new way of arguing structure makes it very difficult for the APEs to come back with anything other than, but it is a natural law, which provides a good belly laugh.

            1. “6, changing my arguments on structure is not conceding they are BS,”

              I know you’re not “conceding”. Your changing your arguments constantly does indicate to those that are making decisions that your positions are bs to begin with though.

              “I support all my old arguments on structure,”

              Well you’ve said that you’re referring to at least three different things at different times. These statements aren’t really “arguments”. They’re just supposedly what you (or another applicant) subjectively mean when you claim x. You keep changing your position on that subject and I’d 112 2nd you if it happened in a case before me.

            2. “but my new way of arguing structure makes it very difficult for the APEs to come back with anything other than, but it is a natural law, which provides a good belly laugh.”

              Um, not really. But thinking that so that cases against you are more easily won.

  14. You really might want to seek help with your obsessive behavior. Gene Quinn does not even post here.

    Spiritual home…?

    Your AAOTWMDs are in full bloom.

    1. But I’m not going to ignore it

      KA-BLOOEY – another irony factory is reduced to rubble.

      Do you even bother reading what you post Malcolm?

    2. You mean MM that blog that was rated as the best patent blog by the ABA? That one?

      MM, no matter how much you plaster us with your nonsense we will always stick to reality and the truth. Your APE duty is outrageous.

      1. Malcolm appears to have a deeply personal issue with Gene Quinn.

        His rampant vileness and misrepresentations of someone who does not even come to these pages only impugns Malcolm. He is obsessed and does not care at all that his rants here will have – can have – no effect whatsoever on Gene’s blog.

        As I have indicated, take any post by Malcolm and remove the banal, remove the ad hominem, remove the vapid QQ, and you are left with nothing.

        You have no law to pound.
        You have no facts to pound.

        We all know what that means.

        1. Gene Quinn is an embarrassment. I’m proud to be banned from his propaganda mill. His conduct toward Lee Cheng from Newegg is all anyone would EVER need to see to understand Quinn’s low character.

          Calling him “schizophrenic” and saying “Cheng is emotionally unstable” is dangerously close to defamation and utterly unprofessional.

          link to ipwatchdog.com

          1. Your conduct Marty…?

            Exemplary of what exactly?

            You admit that you know nothing of law and yet still want to pontificate on law.

            Your rants and tirades are no better than Gene’s.

            At all.

  15. The game is your single favorite banal rhetorical tool:
    Accuse Others Of That Which Malcolm Does.

    You are rather notorious for it. Own it proudly pumpkin.

    1. You are rather notorious for it.

      Pretty sure it doesn’t matter if a s0ci0path like you thinks something is “notorious” or not.

      But keep digging, Tr0llb0y!

      1. Malcolm, you appear to be going apoplectic.

        I suggest you regroup yourself.

        Spend some time reviewing the actual law involved and see if you can put together a cogent legal position sans the poor rhetorical blogging tools.

        Give it a try.

        1. Spend some time reviewing the actual law involved

          I spent a lot of time reviewing the “actual law” involved many years ago. Since that time I’ve been making the arguments that Lemley is making now — and some even better ones that I wish Lemley and others would make (and probably will when the time comes).

          Those arguments are compelling and succesful for a reason. But go ahead and tell everyone that the judges are just “corrupt”, and everyone who doesn’t agree with your incomprehensible self-serving gibberish is “ignorant” of the “actual law” and the technology.

          You’ve been doing that for years here. How’s it working out for you?

          1. many years ago

            Time (long overdue) for a refresher course.

            Those arguments are compelling and succesful for a reason.

            Um, sure, to you in your mind – but that’s not really saying too much Malcolm. Your RQ/HD edicts are not compelling anywhere else.

            How’s it working out for you?

            LOL – far better than that fool that stated that intellectual honesty is not needed on a blog because a blog is not a court. Far better than the f00l that has no tables of law to pound and no tables of facts to pound.

            1. “Those arguments are compelling and succesful for a reason.”

              Um, sure, to you in your mind

              Did we all just collectively imagine KSR, Bilski, Nutgen, Prometheus and the oral arguments in Alice and in this case?

              Here’s a thought: instead of shouting obscenities and gibberish at the train as it hurtles towards you, maybe start thinking of alternatives that are not your ideal but are still preferable to munching steel.

            2. Did we all just collectively imagine KSR, Bilski, Nutgen, Prometheus and the oral arguments in Alice and in this case?

              LOL

              Are you attempting to take credit for ANY of the legal points in those cases?

              Really?

              That delusion runs deep in your mind.

  16. (sigh)

    It is the exceptions to the judicial doctrine of printed matter, Malcolm.

    LOL – are you going to again dissemble and prevaricate as to the status of controlling law and your knowledge of that controlling law?

    Further this is not limited to 103.

    Further your spin here is not accurate (go figure).

    And what is up with your obsession with IPWatchdog?

    1. what is up with your obsession with IPWatchdog?

      IP Watchdog is an endless font of computer-implemented junk patent-fluffin’ b.s. It’s where guys like you are born and bred and where you practice your lame scripts on each other.

      I’m not “obsessed” with it, but I am interested in its evolution. It’s worth paying attention to in the same way it’s worth paying attention to the wingnut blogs (RedState etc), particularly when they are spectacularly wrong about so much and seemingly unable to learn from their errors.

        1. You apparently have no clue what the terms “strawman” or “ad hominem” mean. You simply fling them around whenever anybody disagrees with you about anyting. Are you really that st00pit, or is this part of your path0l0gical liar behavior? Or both?

          I long ago noticed your sad and weird habit of poorly mimicking various phrases that others used when responding to your drivel. Perhaps this is just another example of that pathology.

          1. You really want me to (once again) post definitions of the words just to prove that you are wrong again?

            How about that word ‘effectively’…? Remember that – and how you kept on forgetting it during the Myriad discussions?

            LOL – good times.

          2. “I long ago noticed your sad and weird habit of poorly mimicking various phrases that others used when responding to your drivel. Perhaps this is just another example of that pathology.”

            Of course man we all have noticed it for years and years. You can of course join me in ignoring him for awhile and only speak to him to help him identify various symptoms of psychopathy or ocpd that he exhibits on a weekly basis.

          3. Remember MM, one of the chief symptoms is always seeking out stimulation or excitement. He constantly trolls trying to be stimulated. If you ignore him, and deny him the stimulation he wants, his posting should eventually diminish considerably. Or at least in theory it should. His condition might be so all controlling of his behavior that it is impossible for him to stop. Or he may simply not have enough other outlets to sate his need for stimulation.

            1. If you ignore him, and deny him the stimulation he wants, his posting should eventually diminish considerably. Or at least in theory it should.

              I respect the theory, in theory. But it’s been tested already and it failed quite miserably. There’s a number of reasons that it failed and ultimately those reasons go back to the particular s0ci0pathology of this “anon” character and, sadly, the types of folks who share most of his views.

              These people do not like their precious bubble(s) to be pricked. And they are very used to getting their way, by hook or crook. That’s why they lack the ability to distinguish between junky computer-implemented garbage and patents in other fields.

              They also suffer from a warped sense of entitlement. That’s because, for the most part, they are already quite wealthy and used to getting what they want. And they’re especially proud of the way that they’ve managed to bend the patent system and the USPTO to accomodate their “needs.” Screw everybody else, of course. They make the world go round.

              And so it goes with “anon” and his cohorts. Of course they despise Lemley and people like me who question their self-serving bullcrap. We’re interfering with their bottom line and they are The Most Important People Ever.

              Let’s face it, 6: if it weren’t for a handful of people like you and me with the time and patience to break this stuff down, the comments here would look exactly like the echo chambers at any of the myriad blogs run by attorneys who are invested in the status quo, where the overriding concern is always the financial impact on the blog owner and his/her clients. It’s that failure to genuflect before their precious personal interests that rankles these characters. It’s always about them and their patents. Nothing else matters to them.

            2. LOL – Malcolm and 6 talking about, um, ‘sanity’ and “thems people out there who wants them patents…”

              This stuff is WAY better than the Beavis show.

              /eyeroll

            3. “But it’s been tested already and it failed quite miserably. ”

              Oh come on, it’s barely been tested. Give it like three weeks to a month. I’m already seeing decent results, even if the number of his posts responding to me is still rather large, the overall bulk of the posts is much reduced.

            4. “You remain absolutely clueless 6.”

              ^ See MM? He still responds, he just doesn’t say much.

              Him not saying much limits his ability to stir up trouble. Of course now that I’ve pointed this out, he’ll probably try to be a “rebel” and plaster a few paragraphs after everything I say for the next month just out of contempt for those that try to understand him. But maybe not and I’ve seen comparatively really good results of late.

  17. The deep confusion of the patent teabaggers is summed up nicely in this comment from “Pro Se”:

    Slam 101 on that sucker and keep it and others like it from sullying Title 35, no matter how beneficial it may be to promoting the useful arts in specific industry segments where it serves an incredibly important and necessary purpose.

    It goes without saying that data is extremely important and necessary for everybody on earth, in all kinds of contexts.

    It’s for that reason (in part) that patents can’t be used to protect information and other abstractions, no matter how valuable the information is perceived to be. Of course, the mere fact that something has value is enough for the patent teabaggers to demand their right to own and control that thing with patents. That’s how we got into this mess, after all.

    What’s always been fascinating is that nearly all of the patent teabaggers (with few exceptions) do seem to stop short of demanding patents on, say, non-obvious instruction manuals or purely mental processes. They never explain why, however, given that their simple-minded argument that “patents belong wherever there is valuable use” would seem to apply equally in those contexts.

    Maybe one of them will offer up a coherent policy explanation for the distinctions they draw here and now. That would be new and refreshing. But more likely they’ll just pretend that “the law” is some immutable thing that should never be questioned unless of course it’s being applied in a manner that is unfavorable to their grifting interests.

    1. Let the MM plastering begin….next we will get some claims from some random patent application he doesn’t like.

      MM thinks that information processing methods are evil incarnate. He papers his walls with them and throws his duty on them. Consider that when evaluating his mental state and intelligence.

      1. MM thinks that information processing methods are evil incarnate.

        Not at all. I process information all the time, just like everybody else who isn’t in a coma. And I often use my computer to help me process information.

        So, no, processing information is not “evil incarnate.” On the contrary, it’s super important.

        Now, as for junky patents that use functional language to protect not only methods of processing information but information itself (under the guise of made-up baloney like “data structures” or “device profiles” or “physical tables” or “virtual objects” — that’s a different story.

        1. I process information all the time, just like everybody else who isn’t in a coma. “:

          Ah, yes, Malcolm’s strawman allows me to use my favorite word:

          Anthropomorphication

          Silly Malcolm, since claims are to be understood by persons having ordinary skill in the art to which the invention pertains, and those PHOSITA know that machines really do not think, your pathetic attempts to misconstrue claims as somehow being ‘totally in the mind’ are (yet again) a FAIL.

          You know, if you were intellectually honest, you would not bother trying so desperately to recycle this trite argument all the time.

          1. Malcolm’s strawman

            Hello, retard and liar! I see the nurse has let you roam free today.

            Here’s a newsflash for you: it’s not a “strawman” to directly respond to NWPA’s comment.

            You really are a genuinely sick s0ci0path. Get help, man.

          2. if you were intellectually honest, you would not bother trying so desperately to recycle this trite argument all the time.

            If you got your meds adjusted, you might learn to shut your sad gaping piehole before accusing other people of being dishonest when they are simply responding directly to another person’s comment.

            I’m pretty sure they have drugs to help people like you nowadays. Ask your mom to talk to your shrink. Seriously. It’s going to be long year for you.

        2. Pure strawman: “So, no, processing information is not “evil incarnate.” On the contrary, it’s super important.

          That is not even close to the discussion as to why Lemley is reviled.

          At least try it get these things right before you go on a QQ rant.

          1. Yes, but note how he attempts to dissemble by recognizing the importance and at the same time seeking to employ the debunked mental steps doctrine – trying to be clever by insinuating that software is still something that exists “totally in the mind.”

            He attempts to belittle the concept of integrity – of living one’s convictions – as some type of desperate ‘when the tissues are gone’ argument of those who point out the lack of integrity of the anti-software patent curse-saders. He is only too willing to use the fruits of the innovations while seeking to deny protection to those very same things. He tries to hide the fact that he always has the option to not use any of these things that he ‘papers the walls with and throws his APE duty at.’ Instead, he is obsessed with the notion, the belief that he really is saving the masses at the edge of the rye field from the great evi1 ‘grifters.’

            1. Don’t forget Ned who wants to ignore the one aspect from copyright law that I bring up: fixed in a tangible medium (thus, necessarily not being something ‘totally in the mind’).

            2. anon, but fixed that it can be read by a human. Whether it can be read by a computer for purposed other than being read by a human is irrelevant to copyright law.

  18. MM (APE), “decide to call structure.”

    MM: I can make a special purpose chip that would implement that method and data structure. That is structure. Hardware is equivalent to software. Stop trying to use 101 instead of 102 and 103.

    1. I can make a special purpose chip that would implement that method and data structure. That is structure.

      Go ahead and claim that structure, then.

      [shrugs]

      Hardware is equivalent to software.

      Then claim the structure of the software.

      [shrugs]

      1. Scope of enablement. A claim to information processing does not need to include a special purpose chip recited. One skilled in the art knows that that is one option for implementing the method. Scope of enablement.

        Man you pile it so high only an APE could climb over it.

          1. favorite game of whack-a-mole

            Translation: “Whatever, because I cannot be bothered to actually supply a legal position and defend that legal position.”

            When you have the law, pound the law.
            When you have the facts, pound the facts.

            When you have neither, pound the table – there goes Malcolm again, pounding the table.

            Go figure.

        1. A claim to information processing does not need to include a special purpose chip recited.

          I never said that it did. Nice strawman.

          You can’t claim information processing methods without a bona fide new machine or apparatus or composition. And surely those new machines/apparati/compositions can’t be simply described in terms of their otherwise ineligible information processing functions. That would just be a pathetic bootstrapping joke.

          Do you have any other circular “arguments” you want to share with everyone?

          1. It is no strawman when you turn around and ignore the fact that software is equivalent to firmware and is equivalent to hardware.

            “bona fide” – lol – Malcolm’s RQ/HD it is so when I say so new weasel words.

            Tell me again, oh master of “I support my position with detailed explanations” how exactly does an ‘oldbox’ – without being changed – come to have new capabilities has is often claimed when the manufacture of software is what is claimed? Let’s see you address this situation without the dissembling that you so eagerly spout. Let’s see if you can be honest. Address the Nazomi case – even if Ned runs away in fright.

            See if you can drag Ned to actually acknowledge what was the “Point of Novelty” in Diehr.

          2. It is no strawman when you turn around and ignore the fact that software is equivalent to firmware and is equivalent to hardware.

            Preach it, Patent Jeebus! It is no strawman when I turn around and ignore your self-serving bullshirt! Deep, deep stuff.

            Bow down everybody.

            Address the Nazomi case

            And once again Tr0llb0y runs deep into the weeds of Kookoopatentland. It must be comforting for him there.

          3. LOL – yes, because asking you to actually comment on case law is “runs deep into the weeds of Kookoopatentland.”

            At least on the alien world that Malcolm comes from, where pounding law is to be disdained, and facts are nothing but spin vehicles…

          4. asking you to actually comment on case law

            Comment on the case law yourself, Tr0llb0y, if that’s what gets you off. But please do everyone a favor and lay it out in plain English, with the relevant quotes, so we can all have a chance at understanding what the eff you’re babbling about.

            You seem to think this Nazomi case is super important for some bizarre reason. Go ahead and make everyone understand why it’s so important. It’s not my job, nor is it anybody’s job, to explain your own bizarre incomprehensible beliefs to everyone else.

            Why does this even have to be explained to you? You’re like some pathetic six year old who thinks that everyone else exists to serve him.

            Get a fricking life, loser.

            1. , if that’s what gets you off

              ?

              Sorry Malcolm, I cannot see even a remote chance that you are trying to have an actual conversation.

              It’s rather funny that you want to clam that I think that it is “all about me” and then when I ask you to comment on a particular case, you refuse to dos o and want me to spell it out for you.

              Try to lose the ad hominem, or at the very least say something intelligent along with it.

      2. Night and I have been having this debate for some time, so it remains clear to me that he wants to patent math and now data without tying such to any machine, manufacture or composition.

        Just look at his reply.

        Then he has the effrontery to call the Supreme Court or anybody who supports the Court names?

        1. Patent math? Where is the math? Instructions to a machine and a method for processing information is not math.

          Ned. If. Only. You. Were. Not. Paid. To. Be. On. This. Board. We. Might. Have. Real. Discussions. You. Are. A. Paid. Blogger.

          1. Night, see. You personally attack rather than discuss. You do this with me, with Lemley and with everyone with who you disagree. It is about time you did some self-assessment.

        2. machine, manufacture or composition.

          Completely untrue Ned.

          Incredible that you will ignore my posts on why software is a manufacture.

          Willful ignorance on your part.

          Can you obtain copyright on math? note – let’s keep the goalposts where they are at and not go on a frolic to answer a question I have not asked concerning a math book.

          Simple question Ned – what is your simple (and honest) response.

          Please do not run away.

        3. The “effrontery” is the abasement of law in the name of a philosophy and an agenda that cannot be tied to the words of Congress, nor to the meaning of the constitutional phrase that gives to Congress (and Congress alone) the authority to write patent law.

          Your willful ignorance to this point will not change this point.

          1. The “effrontery” is the abasement of law in the name of a philosophy and an agenda that cannot be tied to the words of Congress, nor to the meaning of the constitutional phrase that gives to Congress

            Big impressive words from a very, very, very, very small s0ci0path with a mouth that never stops fluffing patents.

            Welcome to the USA. The Supreme Court interprets the law. Don’t like it? Impeach them.

            C’mon, Mr. Principle. What’s the matter? Chicken, ashamed, or both?

            Get the public behind you. That should be easy, right? Because everybody knows that patents are sooper dooper awesome and people like you just want to promote progress with them. It has nothing to do with lining your own pockets at the expense of everyone else. Right?

          2. Try as I may, there is no discernible point in the vomitfest of Malcolm’s post at 19.2.1.2.3.1.

            Ad hominem unconnected to any any point I said
            Impeach? – when nothing I have ever said falls to that statement (you know this as I have previously corrected you on this point)
            Mr. Principle – come, but no actual question as to come where
            The public behind me – a ridiculous non sequitur (and likely merely a link to Malcolm’s own fantasy related to saving ‘the masses’ running through that field of rye.
            lining your pockets” – a projection of self-loathing that stems from his abject cognitive dissonance from working in a profession in which he does not believe in the work product he produces.

            1. Try as I may

              Well, try again after you get your meds adjusted.

              Or just keep waving your purty flag around and screeching about Congress this and Congress that whine whine whine nose of wax whine whine whine court seizing power whine whine whine.

              [shrugs]

  19. I can easily see the crux of the matter before the court:

    Does “for describing properties of a device in a digital image reproduction system to capture, transform or render an image breathe life into the claim?

    Is the manufacture as claimed a machine component? Or is the claim to be read not as a machine component?

    How does a person having ordinary skill in the art to which the invention pertains understand the claim?

    Is PHOSITA someone who is oblivious to the very art cited in the preamble?

    A little intellectual honesty and common sense will go a long way here.

    1. Is the manufacture as claimed a machine component?

      Irrelevant.

      “A machine component, wherein said machine component comprises glued papers comprising information, wherein said information is [insert useful non-obvious information here].”

      That’s ineligible garbage. It doesn’t matter how you or anyone else “claims it.”

      The Federal Circuit saw right through the patentee’s baloney immediately in this case. They were trying to protect stored data with a patent. You can’t do that.

      Have you been advising your clients to the contrary? Let everyone know.

      1. Most definitely not irrelevant.

        Just because you want to wave your hand and decree it so, it is not so.

        Try to stay on point and not disappear into your fantasy strawman land.

        1. …fyi, the relevancy of printed words is very much a legal issue to be examined, as we both know that printed words may very well have patentable weight – N’est-ce pas?

          1. the relevancy of printed words is very much a legal issue to be examined

            Examined? More like “challenged and destroyed.”

            I can hardly wait for you and Hricik to explain to everyone why the doctrine of dissecting non-obvious information “limitations” out of the claim belongs in 103. Good times ahead!

        2. Most definitely not irrelevant.

          LOL. Keep screeching, Tr0llb0y.

          Exactly what are you advising your clients who seek to protect old machines comprising new data? No problem? That’s easy we just need to call it a machine?

          Do you also advise them that they can claim new databases based on the information in the database? Seems like there was a Fed Cir case fairly recently dealing with a medical database that answered that “question”, to the extent anyone believes there was an actual question there worth answering.

          Do you just ignore those cases when you advise your clients? I wouldn’t be surprised if you do, of course, because that sort of ignorance and dishonesty is all in a days work for the softie woftie crowd. That’s how we arrived at this ridiculous juncture in the first place.

          It’s 2014 and some bottom-feeding m0r0n thinks you can patent a “profile”. But there’s a computer involved so we’re supposed to take that m0r0n seriously because … computer!

          Grow up, grifters. I know it’s hard for you but the system really doesn’t need to waste any more time with your junky patent claims.

          1. Screeching?

            LOL – not at all. I merely present facts and law.

            Pound that.

            Oh wait, you only pound the table as you have no law to present and no facts to present.

            Man, it svcks to be you.

  20. I agree with the district court that the data structure claim is nonstatutory. Regarding the method claim, I think the steps are stated in terms of their results and therefore are governed by section 112(f). Without knowing what the corresponding steps were, I cannot on this record given opinion as to whether the method claim is eligible or not, as it actually might involve a transformation and may meet the requirements of the MOT. However, if all it involves mathematical manipulations on measured data, to produce data, then the claim would seem a to run afoul of Flook.

    1. manipulations on measured data, to produce data

      encryption and cryptograhy….?

      The admission made by counsel for CLS Bank in the oral argument transcripts…?

      Flook quotes and being limited by Diehr?

      Ned – once again you are engaging in the merry-go-round of CRP-ignore vlaid points raised and run away-CRP again.

    2. I think the steps are stated in terms of their results

      The steps simply recite “generating” the data. That’s it. It’s pure garbage.

      These should never have left the patent office.

      Hilarious watching the patent teabaggers try to defend them here. It’s almost as if they think they are over at GQ’s place where every patent fluffin’ utterance is treated like some sort of decree handed down from on high.

      A device profile is “just like a shelf”? Welcome to the bottom of the barrel, folks. More accurately, welcome to the muck beneath the bottom of the barrell. That’s our patent teabaggers: they never saw a piece of junk they couldn’t fluff.

        1. the RQ/HD strikes with the decree of what must be so….

          More accurately, I’ve been telling you for years “what must be so” and explaining in detail why that is the case. Now the Federal Circuit and the Supreme Court are going to tell it to you.

          But will you ever take your fingers out of your ears and stop screaming gibberish and repeating your lies like a s0ci0path? Highly unlikely. Maybe you should get your meds adjusted. It’s going to be a long year.

          1. and explaining in detail why that is the case

            LOL – No Malcolm, your mere decree is not ‘explaining in detail’ as was witnessed in the aftermath 30,000 mewling QQ meltdown you had after the Myriad decision which included you throwing your pet theory on a bonfire and refusing to engage in a conversation with your vaunted “English as a First Language” skills in any attempt to save it from (rightfully) becoming a charred ember.

            Your AOOTWMD of lies is rather pathetic and fools no one.

      1. MM, point taken. The claims only produce data, not something physical. As such, it is non statutory as data is non statutory, not being a machine, manufacture or composition of matter.

        Mathematical methods (nonstatutory) for producing data (nonstatutory) are nonstatutory even if one measures the data physically. To hold otherwise would be to essentially overrule Benson and Flook, and Prometheus.

        1. Ned – you dodged the points I presented:

          encryption and cryptograhy….?

          The admission made by counsel for CLS Bank in the oral argument transcripts…?

          Flook quotes and being limited by Diehr?

          Don’t run away.

          1. anon, cryptography is a process of communicating data in a secure way between a sender and a receiver, both apparatus. I see no 101 problem claim such a process.

            1. process of communicating data in a secure way between a sender and a receiver, both apparatus.

              apparatus? Your transparent reliance on MoT is (rightfully) rejected as not in accord with law (either statutory text or Supreme Court case law ‘interpreting’ the statutory text.

              Your bias on treating the category of method as less than a full category in its own right under the direct words of Congress is showing once again Ned. You refuse to give full weight to the category of ‘process’ seeking only to treat that category as a handmaiden of the ‘hard goods’ categories.

              This notion was rejected in Bilski when the Court HELD that MoT was not required.

              This notion was also rejected in Benson and Flook in the quotes from those cases that I have provide to you and for which you steadfastly refuse to even acknowledge.

              (and please don’t bother to bring out ancient treatises for which I have shown you the views are not valid)

            2. Bilski only held that the MOT was not the exclusive test. It did not hold that every process was eligible. That is inconsistent with its holding in Bilski itself, just for example.

              Cryptography involves the secure communication between two machines. Are you going to deny this?

            3. Bilski only held that the MOT was not the exclusive test. It did not hold that every process was eligible.

              Great Ned, um who are you arguing with?

              I pointed out what Bilski held.
              I said nothing at all about “every process.”

              Your reply then is completely non-responsive to my post.

              Try again OK?

            4. Cryptography involves the secure communication between two machines

              Sorry Ned – simply wrong. There is no requirement that any machines be in play with cryptography.

        2. We think Data Structure is an overstatement. Claim 1 is a statement; it reads like an incomplete sentence and claims itself if anything. It is not of something described but only is the words and units of description. Like this Device one (110 VAC 12 Amp ) Device Two
          (20 VDC 60 WATTS)

  21. “The method step involved more questioning and Judge Moore rightly challenged Lemley’s argument that ‘A method of generating an unpatentable idea is itself unpatentable.'”

    Really? What about electricity, Mr. Lemley? A method for generating electricity is unpatentable?

      1. WCG: I think Lemley has gone into overdrive providing specious arguments. I can’t believe that we are burning the patent system down based on the nonsense that Lemley has generated.

    1. As I pointed out earlier, the issue of whether a method of generating an abstraction was likely ineligible was raised first not by Lemley, but by one of the male judges on the panel. In the context of the method steps at issue in this case, where the method steps are simply “generating” the ineligible data, that proposition is not much of a reach.

      The Feds didn’t argue much Lemley about this. Moore’s point was regarding a product of nature — properly claimed specific methods of making such a product synthetically are not ineligible just because the product is ineligible. Lemley, like any rational person, was perfectly willing to concede that banal point.

      The method claims at issue here are more along the lines of “A method of preparing a screenplay, comprising generating a cast of characters and generating a plot.”

      It’s that bad.

      The patent teabaggers really should listen carefully to this oral argument. This is the sound of your pathetic house of cards falling apart.

      1. concede that banal point.

        LOL – Malcolm getting his bonfire ready (upon which to toss his pet theory with all of its holes).

        Your turn to bring the marshmallows Malcolm.

      2. here are more along the lines of

        LOL – more Malcolm self-FAIL. What controls this analysis Malcolm?

        Are you ready to admit – simply and honestly – what the controlling law is and what that controlling law means?

        Mmmmm – toasty.

  22. The applicant is required to describe the alleged invention in such a way that it can be carried out by a PHOSITA (§ 112). It has often been said: § 112 does not replace § 101, but it does give clues for the interpretation of § 101: subject-matter that cannot be described in the required way is likely not to be patentable.

    You cannot “carry out” a data structure. You can carry out programming that produces data in he specific structure – but that is not what is claimed, I guess.

    An important feature of patent is to allow exclusivity. Data structures typically relate to interfaces, so they cover not just a product, but also an interconnected product. Conceivably, the two products may be (nearly) identical, or at least comparable (plug and socket), but they may also be very different (client and server).

    Patents on interfaces may block rather than promote innovation (which is what the constution requires, in modern terminology).

    1. You can build a data structure. Saying a data structure is ineligible for patentability is like saying a shelf is not eligible for patentability.

      The APEs have taken over the house.

      1. You can build a data structure.

        You didn’t build that argument well enough to enable a person skilled in the art to make it.

        1. LOL – IANAE, you are the last person to be able to post as to what a person skilled in the art is or is not enables to do.

          You have taken waaayyy too many Calvinball face spikes to be able to speak intelligibly on this subject.

        2. Really, IANAE? You think that the claims fail 112? I don’t think so. I am one skilled in the art. I could build a special purpose machine for those claims and I could program the method and data structure using software, which is equivalent.

          I am starting to think the SCOTUS is going to spank the Lourie in Alice because boz0 like you getting this much enjoyment from burning down valid claims is a good indicator that the Fed. Cir. went too far.

          1. “Really, IANAE? You think that the claims fail 112?”

            He said that you didn’t construct your argument well enough for one of ordinary skill in the art to be able to make it (as in a lawlyer can’t make your argument because you didn’t make the argument well enough).

            It’s a jab at you for making tarded arguments.

            And it is funny.

      2. I agree with NWPA, a data structure could be a manufacture. Now, maybe “manufacture” has been given in the past a meaning that was OK for 19th century, but patent law should evolve. Now information is raw material that can be transformed and shaped. A data structure is not something that exists by itself in nature. Nor is it a law of mathematics that is necessarily true. I think that should be enough for those concerned by patent protection rights extendind too far.

        I think it can be in many cases the product of the creativity of an inventor. Why would this inventor be denied the right to own his/her creation?

    2. Patents on interfaces may block rather than promote innovation (which is what the constution requires, in modern terminology).

      Reinier’s trickery returns.

      That which blocks is only that which can “carry out” in Reinier’s odd – re-defined way.

      Also forgotten in Reinier’s musings is the notion that ‘blocking” is itself a form of promoting innovation (necessity being a mother and all that). There is nothing sacrosanct about ‘interfaces’ being outside the bounds of patent eligible material. Nothing.

    3. Patents on [X] may block rather than promote innovation
      where X = happens to be the technology you are practicing.

      It is an argument that is likely well over a hundred years old.

      1. LOL – followed closely by “they are preventing me from doing whatever I want, so they must be bad and the patent must be bad for some reason, even if I don’t know what that reason is and know nothing at all about law – I still have an opinion and that opinion should be law” (paraphrased of course)

      1. They block him from copying other people, and he used an interface then went to sleep and dreamed of a new interface for his system. It just happened to be the same patented interface. No fair. He dreamed it and he can program it, so he should get it.

        1. A reminder to all (including certain professors of patent law/practitioners of active cases where that very law is before the court):

          Patent law does not have an independent creation defense.

          This is rather important to keep in mind, as well as it is important to keep in mind what a patent actually is: the exclusive right to keep others out – others include ALL others, including both manufacturers and ANYONE – read that as end users – that the manufacturers sell to and that use the patented item. Certain other professors wondering what the “strict liability” like nature of patent infringement means should pay attention.

    4. Reinier, I just have to quote from Stevens just a bit to show why Bilski threw such a monkey wrench into the Supreme Court’s 101 jurisprudence. I have been saying the same thing here for some time:

      “The patent now before us is not for “[a] principle, in the abstract,” or a “fundamental truth.” Parker v. Flook, 437 U.S. 584, 589, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978) (internal quotation marks omitted). Nor does it claim the sort of phenomenon of nature or abstract idea that was embodied by the mathematical formula at issue in Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972), and in Flook.

      The Court construes petitioners’ claims on processes for pricing as claims on “the basic concept of hedging, or protecting against risk,” ante, at 3231, and thus discounts the application’s discussion of what sorts of data to use, and how to analyze those data, as mere “token postsolution components,” ante, at 3231. In other words, the Court artificially limits petitioners’ claims to hedging, and then concludes that hedging is an abstract idea rather than a term that describes a category of processes including petitioners’ claims. Why the Court does this is never made clear. One might think that the Court’s analysis means that any process that utilizes an abstract idea is itself an unpatentable, abstract idea. But we have never suggested any such rule, which would undermine a host of patentable processes. It is true, as the Court observes, that petitioners’ application is phrased broadly. See ante, at 3230-3231. But claim specification is covered by § 112, not § 101; and if a series of steps constituted an unpatentable idea merely because it was described without sufficient specificity, the Court could be calling into question some of our own prior decisions.[2] At points, the opinion suggests that novelty is the clue. See ante, at 3230. But the fact that hedging is “`long prevalent in our system of commerce,'” ibid., cannot justify the Court’s conclusion, as “the proper construction of § 101 . . . does not involve the familiar issu[e] of novelty” that arises under § 102. Flook, 437 U.S., at 588, 98 S.Ct. 2522. At other points, the opinion for a plurality suggests that the analysis turns on the category of patent involved. See, e.g., ante, at 3229 (courts should use the abstract-idea rule as a “too[l]” to set “a high enough bar” “when considering patent applications of this sort”). But we have never in the past suggested that the inquiry varies by subject matter.

      The Court, in sum, never provides a satisfying account of what constitutes an unpatentable abstract idea. Indeed, the Court does not even explain if it is using the machine-or-transformation criteria. The Court essentially asserts its conclusion that petitioners’ application claims an abstract idea. This mode of analysis (or lack thereof) may have led to the correct outcome in this case, but it also means that the Court’s musings on this issue stand for very little.” Bilski at 3235-6.

  23. Judge Moore! OMG!

    Counsel: “There are many claims there are many decisions from this court that have upheld claims that are similar to these claims, analogous to these claims”

    Moore: There are lots of decisions of our court that have upheld lots of claims under 101, ALL UP IN SMOKE AT THIS POINT.

    lulz. lulz. lulz.

  24. Another recurring issue that gets tossed about at the oral arguments is the issue of when some information-processing “innovation” falls into the “head and hand” tarpit. (I realize now this must be what Dennis was referring to with the first of his ‘interesting’ questions).

    Here, there was apparently some “expert testimony” in the district court to the effect that it would be impractical to generate these profiles by hand. While that may be true in some cases covered by the claim, I don’t believe it’s true for all cases covered by the claim. That’s because the claim covers both extremely complex “generations” and extremely simple “generations”. This is true of a lot of the junk computer-implemented claims we’ve seen in the past and it’s something that defendants should always be on the look-out for, i.e., what happens if all the input values are zero, or mostly zero and a couple 1’s? If the claim covers that “calculation”, then you’ve put the patentee right back in the tarpit (where they belong).

    Lemley did a fair job, I think, of addressing this issue during the oral arguments. That gets us back to Dennis “interesting” question: when a huge gaping hole can be punched in the expert’s testimony merely by an attorney pointing out incontestable facts that are readily understood by the jurist, then what should happen to the expert’s testimony? Justice would seem to suggest throwing the testimony in the trash where it belongs.

    1. “expert’s testimony?”

      I don’t know what should happen to the testimony itself, but as a result of the testimony it seems that perjury proceedings would be in order.

    2. Wow, the corporate money is winning and all the little dwe#bs are happy.

      Structure. Real machines. Real methods. Time, space, energy to transform information. Deener hits it on the head. A method to process information.

      Now, we have people that have never even heard of the Church-Turing Thesis deciding our future in the Information Age. I remember hearing a very high placed banking lawyer talk about the fall of regulation at the banks in 2004. He said bad, bad things were on the way. He was in charge of a large bank. No one took him seriously. Now we have nonsense instead of science. The denial of structure. The denial of the Church-Turing Thesis.

      Nutty and nutty….Lemley you really $uck.

      1. The folks at Groklaw has spilled a ton of electrons attempting to explain to me how the Church-Turing Thesis means that all computer programs are math, and thus abstract and unpatentable.

        Here, you say the exact opposite. I think that thesis does not mean what one of you thinks it means. I know my answer from a variety of non-patent law sources, but I’d like to hear your nutshell explanation of why you think CTT says this is not abstract while most software engineers argue the opposite.

        1. The folks at Groklaw has spilled a ton of electrons attempting to explain to me how the Church-Turing Thesis means that all computer programs are math, and thus abstract and unpatentable.
          Don’t confuse logic with math. They are not one and the same.

          BTW — the application of an abstract idea can be patentable subject matter.

          1. No one needs to tell me arguments about applications, etc. Here is one of the articles that makes the argument. If someone wants to explain why CTT actually DICTATES the opposite result in more than a sentence, I would be happy to hear it. I’m not baiting here, I’m genuinely interested in how two smart people can make the exact opposite statement about the same theory.

            link to groklaw.net

            1. Oh boy, what a can of worms that paper is. I have a full day of work ahead of me, but the big picture that our student of theory is missing is that all of that math is merely modeling the real machine. The same equations and modeling can be done for molecules and physical objects which would make them no less real. The machine that is transforming information is real. The math he learned, which I learned as well, is modeling what is going on. The machine takes space, time, and energy to transform the information. How (the method) it uses to transform the information is very important (could be millions of times faster with the right method.) So, his entire paper can be summed up as: he is talking about modelling the real world. I can do the same thing for your chair and your chair doesn’t become abstract and ineligible for patentability.

              Electrons are real. They move in these machines. These are moving parts.

              Hardware and software are equivalent, which is something every computer architecture student learns in the first semester course.

              And, remember that the most important law of physics is the conservation of information. And, these machines are changing information.

              You have to read the ladders of abstraction in the Bilski dissent by Newman to understand how he is misunderstanding the word abstract. (And, by the way, every first year engineering student at the schools I went to was taught about the ladders of abstraction the first year.)

              But, what does the Church-Turing Thesis teach us about recent federal circuit cases. First, that the paper and pencil test is absurd. That adding two numbers is the same as Judge Lourie writing out his brief. It also teaches us that there is no distinction between these so called easy methods that J. Lourie’s nephew can perform and the hard methods that drive cars. That using a test such as can it be done with a paper and pencil, or can a person do it, are the wrong tests. They are wrong because they are equivalent under the Church-Turing Thesis.

              Again, remember that just because something can be modeled by math does not make it math nor abstract. Your student of theory appears not to have learned the difference between modeling the real world and the real world.

              There are a few things to start with. These really are incontrovertible truths. I know there are giant smoke machines that challenge these, but they are science. Saying software isn’t eligible wipes out hardware as well. I should know. I have written patent applications for major consumer products. I know much of the work is trying to stop copiers from merely shifting functionality from software to hardware or vis-a-versa to avoid infringement.

              Functional claims are fine. If you really care about the truth Michael, look at a machine. Say, ok that should be eligible as a thought experience. Then ask yourself what would the claims look like. Without functional claims for circuits/mechanical inventions/software it is not possible to claim what was invented. I have seen no counter proposal by Lemley, which is a good indication that this is not constructive criticism but a means to an end.

              Oh well, more on the Church-Turing Thesis when I have time.

            2. And please MM do not plaster me with your nonsense. I have no interest in anything you have to say nor have more claims that you wish to pillar plastered under my posts.

            3. in more than a sentence

              LOL – you do not like my Prof. Hricik model of six words brevity capturing the entire context?

              So disappointed in your lack of appreciation, as I have given three separate gems in that mode:

              The map is not the land.

              Do not be seduced by semantics.

              Basic math is not applied math. (albeit this one is modified slightly).

              I would have said less if I had more time. (those that understand the art of brevity will appreciate this line – those unwilling to understand need not comment and misconstrue).

            4. Groklaw (PoiR) needs to be scrutinized the same way that Reiner Backels needs to be scrutinized.

              Both have been on record as being simply (and avidly) anti-patent.
              Both have been on record as buying into the theory of using semantics in order to destroy the patent system – of using and twisting language itself to ‘re-define’ the debate in a no-holds-barred agenda to eliminate patents.

              They are not interested in any sense of the ‘truth’ beyond their hard-core ideology. Neither are interested in learning about any notion that patents actually benefit society.

              There is a very real philosophical battle underway. Ignore this at your own peril.

        2. I will tell you Michael that if you really want to understand this, then you are going to find your pal Lemley is judicial activist that doesn’t care about the facts or the law.

        3. I thought Groklaw shut down because Paula found out the NSA was reading / tracking everyone’s email. Has it re-appeared somewhere?

          1. Why would Groklaw care if NSA was doing anything? After all, don’t they believe that everything is data and math and wants to be freeee! ?

            Or are you suggesting that they want somethings to be more free** than other things?

            ** – reminiscent of Orwell’s Animal Farm – hint, those who do not learn from history are doomed to repeat it.

        4. “Here, you say the exact opposite.”

          He doesn’t actually say “the exact opposite”. His beef is with the judges that hold claims to be directed to an abstract idea when they could be performed in the mind (for methods) or if they’re performing something that could be done in the mind (for claims to a computer to do x method). He rightly notes that the thesis holds that all computer programs can be done in the mind (given infinite time) thus, according to him, holding the way the judges have held would have them holding all software is ineligible.

          But of course the judges are splitting a hair. NWPA hates them splitting that hair. I do too, though I would have them hold against NWPA.

        5. And Michael we do not say the opposite. Here I say that it is not possible to make educated decisions on information processing without understanding the Church-Turing Thesis. And that often absurd arguments are made by judges and litigants.

  25. It’s great to hear that Lemley and Moore “get” Prometheus v. Mayo.

    Moore raises a hypo regarding a new process for determining white blood cell count and both her and Lemley appear to agree with the fundamental truth of Mayo: you’re in deep doodoo unless you’ve got physical transformations recited in the claim that are themselves patentable (in which case, by all means go ahead and get your patent on that process).

  26. This is an extremely interesting oral argument. The plaintiff here gets absolutely hammered on the “data structure” claim.

    It’s frankly unbelievable that in 2014 that the Federal Circuit would even bother listening to a patentee defend the eligibility of a claim to a “device profile”. What a waste of everyone’s time.

    That said: amusing to hear the plaintiff’s attorney get his xss handed back to him, and rightfully so.

    In large part, this pathetic circus can be blamed on the PTO which should never have granted this junk (or the reams of similar junk floating out there). There was never any viable legal theory supporting patents on this kind of junk. There was just junky, nonsensical arguments and/or pure lies.

    Also, I note that the issue of whether a method of generating an abstraction was likely ineligible was raised first not by Lemley, but by one of the male judges on the panel. In the context of this sort of method claims, where the method steps are simply “generating” the ineligible data, that proposition is not much of a reach. The Feds didn’t argue much with this (Moore’s point was regarding a product of nature — methods of synthetically making those products are not ineligible just because the product is ineligible).

    The Federal Circuit can do everybody a great service by plainly tanking this garbage and every claim that remotely resembles it, with extreme prejudice. Is the USPTO paying attention? Maybe it’s high time to revisit a few of its earlier nonsensical attempts to coddle the worst innovators on the planet (B-claims leap immediately to mind)? Just reverse the policy and let the Federal Circuit make a collective fool out of itself if it wishes to wade that deeply into Kookoopatentland and resurrect it.

    1. On reading the claims in issue, I am surprised that they passed the USPTO and am in great doubt that they should be upheld.

      Possibly there was an invention, and very possibly image transformation is facilitated by the invention. But this is just a two step linear claim with no new function or result apparent on completion of the two steps. You start with first data and end with second data. The benefits are not apparent from the claim.

      It is a shame when claims of this kind come before the courts because foreseeably the outcome will be to damage and discredit the patent system in which we all work. Just for repetition, there may be invention here but the claims do not define it.

      1. Paul it is probably true that this should not have gotten by the 102 and 103 filters. But, what the true tragedy here is that repeatedly we are seeing the court take simple hardware/software claims and proclaim them ineligible under 101 when 102 or 103 should be used. It is like a claim to two pieces of wood nailed together coming before the court and the court then holding that all claims that include wood are ineligible.

        But, I think all this flows from O’bummer giving us judges that are ignorant of patent law and science. Break out the marshmellows. And, ee/cs people, your new job title will be b$tch. We lawyers will figure out how to tie you up with non-compete agreements. You won’t be able to disclose anything about what you do without patents and the companies are going to start getting more and more secretive. We are already seeing that in the companies creating vertical tech. The big companies are clearly at least hedging their bets.

        1. The big companies – attack from the Right.
          O’bummer and like minded ideologues – attack from the Left.

          Malcolm: FUD and conflation that somehow the Right must be the same as the Left since they are both attacking the patent system.

          /facepalm at the inanity.

          1. It is definitely true anon that so much of what we have lost in this country is this bizarre alliance between the left and the right (far, far).

            The left is actually (to my mind) the biggest destroyers of the middle class. Destruction of the patent system is just another example. At the end of the day, the patent system puts power into the hands of the individual even if they work for a big corp. It means they matter. That they can talk about what they have done to others.

            Going to be ugly.

            1. They both (for different reasons and to different extents) want to destroy the middle class.

              Anyone versed in history, anyone who can read and understand philosophy, readily can see the threat to both sides that patents present in general, and the US patent system (with its historical foundational pillars of fully and freely alienable property and the notion that patents are not meant to be restricted to be a ‘game of kings’) presents in particular.

              Patents being personal property is constantly overlooked by left-leaning Reinier.

              Patents not requiring “use” and having the ability to completely reset entire industries is a constant threat to Big Corp who would much rather compete on those factors of size, wealth and (existing) market dominance.

              Anyone who understand and studies the true nature of innovation and of the American spirit of the worth of the individual (no matter how corny and over-played that motif may appear to be) recognizes the superior value of strong patents.

              Strong patent rights bring clarity. It is no accident that the more patent rights are weakened, the more wrangling in the courts we see.

              It is downright hilarious that those wanting to control court costs do not realize that if they succeed in bringing down costs that we will have more (not less) litigation. The false boogeyman of enforcing patent rights as something ‘evi1′ needs to be nipped in the bud. When the officially designed mechanism for acting in our civil society of legally enforcing a Quid Pro Quo obtained right is so automatically denigrated, the stain of Propoganda is evident.

              Stop.
              Think.
              Question the anti-patent rhetoric.

          2. LOL – Malcolm wants to hide in his dust-kicking, no doubt demanding the banal “exact words” when anyone with any reasonable appreciation of English as a first, second or even third language will readily recognize both that Malcolm has insinuated that those portraying the patent system as under attack cannot be so because both Left and Right views for attack are given (and thus that any person so attacking must have both Left and Right agenda) – and – that Malcolm is now dissembling over his very use of that tactic.

            In short, your AOOTWMD does of “path0l0gical lying axxhole” f00ls no one.

            It is plainly you that is the “path0l0gical lying axxhole.”

            How do you like them apples?

      2. “The benefits are not apparent from the claim.”

        The benefits do not have to be apparent from the claim.

        However, in this case, the benefits are apparent from the claim, at least to one of ordinary skill in the art.

  27. Under Warmerdam, claim 1 was dead on arrival. The court spent considerable time attacking it, and it was, IMHO, a mistake to appeal it.

    Claim 10 was the method claim, and Appellants’ attorney should have spent his entire rebuttal time bringing up Research Corp v. Microsoft.

    1. Appellants’ attorney should have spent his entire rebuttal time bringing up Research Corp v. Microsoft.

      Why? Were the claims at issue here similar to those claims? Is Research Corp (2010) a “bulletproof” case, somehow, even after Alice got called up to the Supreme Court for a spanking?

      1. Were the claims at issue here similar to those claims?
        The case isn’t particularly hard to find. It would have taken you at most about 45 seconds to Google the decision and find the claims.

        Is Research Corp (2010) a “bulletproof” case, somehow, even after Alice got called up to the Supreme Court for a spanking?
        Spanking? Alice Corp already lost. Regardless, Alice involved a financial transaction — a so-called business method. Research Corp involved digital image processing — very similar field to claims at issue here. Research Corp is still Federal Circuit precedent, decided post-Bilski. It was, by far, the best case for Digitech to cite. Many of the questions asked by the panel could have been addressed by pointing to Research Corp.

  28. A perfect comeback to the trite and banal script item of Malcolm’s concerning “proper English”:

    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.

  29. DC: Two potentially interesting questions for the case: (1) how to treat expert testimony stating that claims require technologically sophisticated computer and (2) whether the concrete and practical purposes of the invention needs to be recited in the claims.

    With respect to (1), I’m not sure what you’re driving at. Why would that testimony be treated differently from any other expert testimony?

    Or are you trying to ask a different question: What should be the result when an expert presents persuasive evidence that the claimed method requires sophisticated programming, the details of which are completely absent from the claim? I don’t think that’s a terribly “interesting” question. Then again, I’m not in the business of prosecuting and asserting junk patents where such testimony might present a wee problem.

    As for (2), if your claim is otherwise dead in the water, I suppose it might be useful as a short-term dust-kicking measure to salt in some baloney about the “concrete” use of the method. But most such uses are no more “concrete” than the abstract data manipulations.

    Guess what? Information is useful, folks. Always has been. Always will be. And there’s more of it now than ever. And there’s a lot of entities out there trying to pretend that they own the “idea” of using a computing device to access, transmit or process particular classes of information. Some of those entities are bottom-feeders and grifters, simply riding on the backs of larger companies who make and sell technology that processes information. In other cases, its those larger companies themselves who are playing the game.

    Don’t be a fool and let them fool you. You can’t protect information with patents, directly or indirectly. And there’s good reasons for that.

    It sounds like even the Federal Circuit may be growing tired of the b.s. Does Judge Moore realize she is looking at the tip of a massive iceberg of junk when she sees claims like the claims at issue in this case? Or does she think it’s unusually bad? Because it’s not unusual at all. It is certainly bad, however.

          1. That was a bona fide question to Dennis. I didn’t know what he was referring to until I got a fair way into the oral argument. Even there, I’m still not positive if what interested him is what I guess might have interested him. And I made it clear that I wasn’t sure of that before engaging in the conjecture. Do you think the question I asked wasn’t the sort of question that courts are addressing all the time when these information processing functionality patents are asserted? It was central to Rader’s position in Alice.

            In any event, not a strawman. Was that the only one you (mistakenly) identified? I believe you used the plural in your original accusation. What were the others? You made it sound as if there were a whole host of them.

            1. MM you misunderstand the point of his “straw man” post. The post was not to engage you in some sort of substantive discussion, or even comment on the substance of your comment. The comment was made to attempt to control you. Specifically to attempt to control you into not posting the same any more (as anon has specified a thousand times).

              If you view his comments in the appropriate light doing so will save you a lot of trouble trying to make him discuss substance. He doesn’t want to discuss substance when he posts like that and never will. He wants control, as he’s stated a thousand times.

            2. hmmm, or am I controlling you to fixate on this little “psych” trip in order to save the readers from the banality of you attempting to talk about patent law….

  30. “The invention is basically the idea of tagging images with particular information about the camera and its color/spatial image qualities”

    Sounds fairly abstract to me. If they fairly captured that abstract idea with their claims I see no reason why a 101 should not apply.

    ” 1. A device profile for describing properties of a device in a digital image reproduction system to capture, transform or render an image, said device profile comprising:

    first data for describing a device dependent transformation of color information content of the image to a device independent color space; and

    second data for describing a device dependent transformation of spatial information content of the image in said device independent color space.”

    Or if they just claimed a device profile comprising data that could be an excellent grounds for a 101 as well.

    1. “The district court found that the “device profile” was merely a bit of data that did not fit within the literal requirements of the statute that an eligible invention must be “a process, machine, manufacture, or composition of matter.” The district court also concluded that the method claim encompassed an abstract idea.”

      A wise decision.

      “(1) how to treat expert testimony stating that claims require technologically sophisticated computer ”

      First we could investigate the expert for perjuring himself.

      “(2) whether the concrete and practical purposes of the invention needs to be recited in the claims.”

      I’m not sure why that would matter. Intended use limitations don’t generally hold patentable weight, I doubt if they’d hold patent eligible weight either.

    2. basically the idea of

      Congress was explicit in its desire to rid patent law (and the court’s ability to write patent law) on such “gist of the invention” equivalencies as evidenced in 6’s words.

      Read (again) why Congress ripped out of 101 and installed the new section of 103.

      See link to patentlyo.com at post 3.1.1.2:

      More 103 and anti-Judicial wax addiction fodder:

      As listed at link to law-dot-cornell-dot-edu (formatting changed to avoid the multi-link filter).

      The historical note to 103 states “This paragraph is added with the view that an explicit statement in the statute may have some stabilizing effect, and also to serve as a basis for the addition at a later time of some criteria which may be worked out.

      The stabilizing effect noted is in direct relation to the Court and its mashing of the 101 nose of wax.

      The addition at a later time is NOT the courts making common law evolution. It would make no sense to remove that tool from the Court because of its addition to nose of wax mashing and give that right back to the Court. This note can only mean that any such later worked out criteria would come from additional explicit words from Congress, the branch of the government (the only branch) allocated the authority to write patent law.

      Reading the map is clearly different from writing the map.

    3. 6, I do not see anything abstract about the claims. They are specific enough.

      The problem, if any, is exactly what the district court said, data is non statutory. A method of producing data is non statutory. This is as simple as it gets.

        1. 6, the confusion is caused by Bilski. Principle in the abstract is, as observed by Steven, a 112 concept of undue breadth. When I see these claims, I see them somewhat accurately describing the invention in terms of 112(f) at least. There does no seem to be a 112 problem.

          1. Um no there is no confusion, you’re just not seeing that something made up of two pieces of data is abstract. You’re blind.

            And “Steven” never said any such thing.

            1. 6, From Stevens’ concurrence:

              “The patent now before us is not for “[a] principle, in the abstract,” or a “fundamental truth.” Parker v. Flook, 437 U.S. 584, 589, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978) (internal quotation marks omitted). Nor does it claim the sort of phenomenon of nature or abstract idea that was embodied by the mathematical formula at issue in Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972), and in Flook.

              The Court construes petitioners’ claims on processes for pricing as claims on “the basic concept of hedging, or protecting against risk,” ante, at 3231, and thus discounts the application’s discussion of what sorts of data to use, and how to analyze those data, as mere “token post solution components,” ante, at 3231. In other words, the Court artificially limits petitioners’ claims to hedging, and then concludes that hedging is an abstract idea rather than a term that describes a category of processes including petitioners’ claims. Why the Court does this is never made clear. One might think that the Court’s analysis means that any process that utilizes an abstract idea is itself an unpatentable, abstract idea. But we have never suggested any such rule, which would undermine a host of patentable processes. It is true, as the Court observes, that petitioners’ application is phrased broadly. See ante, at 3230-3231. But claim specification is covered by § 112, not § 101; and if a series of steps constituted an unpatentable idea merely because it was described without sufficient specificity, the Court could be calling into question some of our own prior decisions.[2]

              [2] For example, a rule that broadly-phrased claims cannot constitute patentable processes could call into question our approval of Alexander Graham Bell’s famous fifth claim on “`[t]he method of, and apparatus for, transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds, substantially as set forth,'” The Telephone Cases, 126 U.S. 1, 531, 8 S.Ct. 778, 31 L.Ed. 863 (1888).”

              Breadth is not a 101 issue, and the Bilski claims were not ineligible as claiming a principle in the abstract per Morse.

            2. “Breadth is not a 101 issue, and the Bilski claims were not ineligible as claiming a principle in the abstract per Morse.”

              If you’d be so kind as to point out what in all that you just quoted is talking about “breadth” then maybe we’ll all be able to follow along with you better.

              Stevens simply says that he is a bit confused by the analysis performed, and thinks it might be confusing to others. Then he tells us that claim specificity is governed by 112 1st.

              None of that has dick to do with “breadth” not being a 101 issue. Likewise his concurrence is not lawl.

              Breadth most surely is an issue where the “breadth” aka the scope of the claim, encompasses an abstract idea or all uses of an abstract idea. Steven’s surely doesn’t feel differently. He’s 100% on board with it being a 101 issue.

              If you still feel differently I’m not discussing it with you anymore. You’re simply being retarded and I’ll let you sort through that by yourself.

            3. 6,

              1. Laws of nature and products of nature cannot be patented even if newly discovered. The issue is not prior art, but the fact that such things are not “new” within 101. See Myriad that quotes “newness” as the statutory basis for its holding and Flook fn 15 to the same effect for the statutory basis for excluding math.

              2. Per Morse, a principle in the abstract is not excluded under 101. The statutory basis for excluding such is 112. A principle may be other than a law of nature or a product of nature. It is not excluded subject matter. However, the claim must not simply claim the principle, but an application. If a claim simply claims a result, it claims a principle in the abstract.

              3. Stevens pointed out that the “abstract idea” of Benson was not a “principle in the abstract” of Morse. Benson and Flook had a different view of why math was excluded. It was, as Flook stated, a fundamental truth, akin to a law of nature. As such, it was excluded under 101.

              4. When something is excluded, the question becomes, as in Prometheus, whether enough has been added to make it an application of the law of nature, phenomena of nature or abstract idea.

              5. Benson and Flook held that nominal additional elements, conventional and old, were not enough. Ditto Prometheus.

              6. Stevens made the point in the quoted passage that the Bilski claims were not a law of nature, a principle in the abstract, or a fundamental truth like the math involved in Benson or Flook. Rather they were drawn to a specific application. This should have been enough for eligibility unless there was another problem.

              7. Steven objected to construing the claims into an abstract idea called hedging and ignoring other significant limitations. Bilski did not seek to claim a fundamental principle as in Benson or Flook.

              8. That left the majority with no statutory basis, nor other legal basis for its holding, having eschewed the only other possible basis: useful arts.

              I fully agree with Stevens.

            4. Ned,

              You should be aware that 4 is not 5.

              Stevens was wrong.

              Not only was Stevens wrong, but had Stevens prevailed, we would have had a constitutional crises of a violation of the separation of powers doctrine.

              Stop.
              Running.
              Away.

            5. anon, Stevens was wrong.

              Not really. One can see the chaos that has resulted from the Bilski decision in the Federal Circuit decision since. Even you would have to acknowledge that the decisions of the Federal Circuit since are inconsistent with each other, and the en banc decision in Alice showed there was no consensus among the judges as how to construe Bilski.

              Stevens accurately pointed out that what the Bilski plurality opinion did was to simply announce a result without any analysis. Further Stevens objected to the way the majority abstracted a principal, called hedging, from a claim that was specific and did not seek to claim the principal of hedging in the abstract.

              Maybe not you, but many others here have agreed that the Bilski claims were not abstract at all under any sense of the imagination. Just read the briefs in Alice case that demonstrate that there is no enormous confusion as to what principle Bilski was advancing.

              While the advocate for CLS Bank argued that Bilski was clear, the Supreme Court justices themselves mocked that statement with their question as to why the Federal Circuit seem to be hopelessly divided if Bilski was so clear. Even Professor Hricik seems to agree on this point that Bilski was anything but clear.

              Even today, I doubt if you could tell me why the claims in Bilski were abstract. Go on, tell me.

            6. Really.

              4 is not 5.

              Still.

              The presence of chaos (from Bilski)has no connection with your crusade of making Stevens view the law.

              None.

              That Stevens was correct that the pronouncement of “abstract” was without explanation, this does not mean that the rest of Stevens’ position was valid. You are doing that “it-aligns-with-my-agenda-so-it-must-be-right thing again. You are attempting to create some type of either-or strawman that is downright bizarre.

              As to the CAFC – I have told you that the problem there is directly related to the Supreme Court. You continue to persevere in your deliberate ignorance.

            7. anon, if there is anything you and I agree on, it is this: There has to be a statutory basis for the Supreme Court holding a claim invalid unless there is an expressed resort to the constitution, in which case, their might be a problem with the statute

              The Supreme Court identified the statutory problem with Math, Laws of Nature and Products of Nature in Flook and Myriad. These are not “new” even though previously unknown. They are universal principles that have always existed.

              But, you and I will agree on this: there is no statutory basis for excluding a business method because it is not “new” like a law of nature, a product of nature.

              And I would hope you will agree with me that the claims in Bilski were not “abstract” in the Morse sense, since they were specific.

              So, where in the world did the Supreme Court get its authority to hold the Bilski claims ineligible? You tell me, Anon. We are on the same side on this issue.

            8. (sigh)

              Ned, You continue to be wrong in your view that the universe is static.

              They are universal principles that have always existed.” – you have a serious logic problem that you are not dealing with.

              The universe is simply not static. “Always existed” does not get you to where you think you are with 101.

            9. And now anon announces that laws of nature are not new such that their discovery creates them.

              Thus, Newton created gravity when he describe F=MA.

              Get real, anon.

            10. Nice dust kicking and misrepresentation Ned.

              Do you agree that the universe is not constant and immutable?

              Yes or no. ( you really should not be ashamed of the right answer, Ned)

              Did I say ANYTHING about gravity, or that Newton created gravity?

              Yes or no. (hint: no and no)

              I simply did not do as you represent: I did not say that discovery creates.

              Such shoddy and so easily perceived CRP from you only shows how desperate you are becoming in our conversations.

            11. Anon, the fact that the universe changes has nothing to do with whether the laws of nature are new or old, regardless that they are not known. Simply because the universe changes does not mean that one can now patent a law of nature because it was not previously known. The newness requirement in section 101 therefore must be the reason why we cannot patent laws of nature.

              But I am not merely saying this. That is exactly what Flook said in footnote 15. Myriad said the same thing in deciding that a product of nature was not eligible. In both cases, they relied on lack of newness. Finally, the statutory basis for abstractness is also “newness.” That was the holding of Rubber Tip, the source of Benson’s statement that an idea is not the subject of a patent.

            12. Simply because the universe changes does not mean that one can now patent a law of nature because it was not previously know

              Again Ned you are misconstruing what I am saying.

              I have never said that one can patent a law of nature.

              NEVER.

              I am saying that since the universe is not constant that your view of view of 101 based on something that has always been there is logically not sustainable. You cannot use a premise of “always” when in reality that premise does not exist.

              You seem to (still) want to ignore reality.

            13. Further Ned, your own posts work against you.

              For example from post 7.4.1.1.1.9:
              Thus, Newton created gravity when he describe F=MA.

              I realize that the point you are trying to make is that gravity existed before Newton – you should realize that I am not – nor have I ever – argued otherwise.

              But this only highlights that you are still missing the entire point in the discussion.

              You should ( should? nay – need to) realize that Newton’s approximation is NOT gravity.

              Do you realize that Newton is not even correct? Yes, the error is not immediately noticeable because the approximation is very good and the error only shows itself at the very large and at the very small. But the error exists nonetheless.

              The map is not the land.

              Newton’s equation is NOT the actual “law of nature.” Nature’s actual law is in fact different.

              I have posted in the past that other approximations have been made – some completely wrong (think of the Michelson and Morley aether experiments) When such a “law of nature” is disproved does this mean that nature simply changed and removed that law?

              Think. Ned. Think.

      1. A method of producing data is non statutory

        Funny that, the method of producing (smoothed) data on an oscilloscope – not chopped liver…

        1. Now you might be getting somewhere Anon. If the preamble limits as in Alappat, then there may not be a 101 problem.

          1. LOL,

            Do you really want me to spank you again with the holding of Alappat and my use of Black’s Law Dictionary to prove how wrong you are with that case?

  31. DC: Mark Lemley argued on behalf of the accused infringers and the court seemed agree with many of his arguments – especially with the notion that a claim to a data structure (claim 1) is not itself patentable.

    Of course “data structures” aren’t patentable. For starters, they aren’t even “structures” in any sense that is meaningful to patent law. It’s made-up self-serving garbage lingo of the sort upon which the softie wofties have been hanging their baloney for years. Glad to see that even Judge Moore isn’t that clueless. Maybe they should have put the data structure on a really heavy hard drive and asked her to put it on her desk — sooper persuasive stuff! The plaintiff blew it.

    Lemley …more particularly argued that mere generation and transformation of data should be unpatentable either as not-a-process or else unduly abstract.

    The point being that you can’t protect data, information, relationships and other abstractions with patents, whether that protection is direct (e.g., a “composition” claim to such) or indirect (a method of conceiving or otherwise “creating” the ineligible information or data without any novel transformation of matter, just data manipulation or, as in the instant claim, hand-wavey, simplistic data “generation”).

    But this is the game played by the softie woftie and computer-implementers on a regular basis. It’s all “functional” information, you see. It’s totally different from that non-functional information that you find in, say, a useful book filled with information — of course that’s not patentable! But this is totally different because … computer!

    Let’s send this one up to the Supreme Court, too. There’s plenty more junk like this floating out there, and much worse. Golly, how do you think it will all turn out?

    The USPTO records also show a security interest held by a Saudi investment company.

    Should we be worried about the Federal Circuit adopting Sharia patent law? LOL.

    1. Made up nonsense? No structure? And, yet it makes all the difference in what the computer does, how fast it does it in, and how much space the computer needs to do it.

      Doesn’t sound like nothing to me. Sounds like—well—everything. Please MM stop posting. You are ridiculous.

      1. No structure? And, yet it makes all the difference in what the computer does, how fast it does it in, and how much space the computer needs to do it.

        Okay, so describe this sooper dooper magical structure for everyone. Describe it in structural terms. That should be easy, right? Because it’s a structure. Or so you seem to believe.

        Go ahead. Describe for everyone the structure of this amazing computer-quickening, computer-shrinking device. Or is it a composition? Or maybe it’s more like an apparatus? Or a component? Either way, describe the structure for everyone.

        Doesn’t sound like nothing to me.

        It doesn’t sound like “nothing” to me either. It sounds like abstract ineligible garbage.

        Your belief that your blankie protects you from The Devil Incarnate Mark Lemley is also certainly useful to you. How else could you sleep at night? But your belief isn’t eligible for patenting. I’m sorry if all this causes you such great pain.

        1. The structure is described in the claim for goodness sake. And, again, the macro reality is that these structures make the machines behave radically different than they would without these structures.

          Please just stick to disparaging the Church-Turing Thesis. You know, that thing that is the most important theory of the Information Age. You know, that age that you live in. You know, the information age because we have built machines that can transform (process) information like the machines that process wheat in Deener.

          Sheesh. You must be paid to write your garbage like Lemley is paid to take his positions. Raking it in there ole Lemley, eh? Money, money, money, eh Lemley?

          1. The structure is described in the claim for goodness sake.

            And I’m riding a giant dragon through the eye of a needle, for goodness sake!

            Sorry, man. Information doesn’t turn into structure just by proclaiming it to be so. Got any other magical tricks you want to share with us? Maybe you can make your foot turn into a sentence.

            1. >And I’m riding a giant dragon through the eye of a needle, for >goodness sake!

              And to one skilled in the art, they will assume you are making a funny expression.

              To one skilled in the art, the claims recite structure. Structure that one skilled in the art prior to the invention likely would not have figured out. There is no difference in these claims than mechanical or chemical claims.

            2. To one skilled in the art, the claims recite structure.

              No, they don’t. The recite a goal to be achieved by a digital electronic computing machine that is designed to be instructed to achieve such goals.

              I suppose an extremely (infinitely?) skilled artisan might be able to envision the detailed logical steps necessary to “instruct” the machine (right down to the finger movements of the programmer, I suppose), but the actual structure of the machine (more specifically, the actual structure of the “new” part of the machine necessary for it to process the information in the desired manner, not the plastic box) is not envisionable for any of the “new” digital computer-implemented information processing functions that are routinely claimed in patents. In part, that’s because the actual structure can vary in infinite ways depending on the particulars of the information processing machine that you are instructing.

              You can ascertain no more structure from the typical junk computer claim than you can from knowing that I am thinking about something that rhymes with horse. That’s true in spite of the fact that you and I can both easily teach someone to think about something that rhymes with horse. We’re both skilled in that particular art. Does that mean we know the structure necessary for this information processing “capability”? Of course not.

              And just so there’s no confusion: we’re talking about physical structure, not some abstract hoohaw like “the structure of an argument” or “the hugeness of the scope of the claim.”

            3. “To one skilled in the art, the claims recite structure.”

              Well then why don’t you send “one skilled in the art” out to tell us what the structure is that they recite? Or is this “one skilled in the art” also imaginary?

            4. 6,

              Does software work?

              Is there some real difference between the software involved in the Nazomi case and the software of say the Windows operating system?

              Intellectual honesty – and common sense – should be applied.

            5. the claims don’t recite structure to one skilled in the art —saith the MM.

              Yes they do. I can build a special purpose machine which is equivalent to the software that implements the method and uses the data structure. That is structure to anyone that has any grasp at all on reality.

            6. NWPA: But the claim doesn’t actually recite any sort of special purpose machine. It’s to the data structure itself. You’re bringing in limitations that simply aren’t claimed.

            7. To: A plurality of thresholding units

              To one skilled in the art is how claims are interpreted. You are supposed to claim what is new–not load up claims with everything including the spec.

              To one skilled in the art, the claims clearly could be implemented with a special purpose computer and the scope of enablement clearly includes a special purpose computer.

              —no question about it.

              Scope of enablment!!!!!!!!!

            8. Apotu,

              You are mistaking reading the claim with the understanding of the eyes of the person having ordinary skill in the art to which the invention pertains with reading into the claim limitations not present.

              As I noted in my response to Prof. Crouch, the preamble must be evaluated – does the preamble breathe life into the claim? If so (and quite arguably it does), your argument is misplaced.

            9. The claim does not recite a data structure.

              A data structure is a template. An array with X and Y indexes is a kind of structure. In an array, the data is usually the same type of data, such as integers in an integer array. Data structure is a broader term and allows for the intermixing of types. One might define a structure called Assets with a first element being an institution name and a second element being a balance and a third element being a real estate address and a fourth element being an appraised value. Defining the structure properly can allow the information to be stored and access as a group or as individual elements.
              Ideally, structures are designed with the use and idiosyncrasies of the machine architecture in mind so that data access efficiency is maximized. That’s why some “data structures” are worthy of patents.

              The claimed profile might be implemented in a structure, but it isn’t required.

            1. Yeah, they got their money’s worth. And money spent to corrupt government employees is often the best money spent. So what does this have to do with Lemley and his ethics and him portraying himself as an objective scholar?

            2. money spent to corrupt government employees is often the best money spent

              Assuming that’s true, it still seems sort of inefficient to pay attorneys to make arguments that are so persuasive (and straightforward) that they eventually “corrupt” the judges who are exposed to them.

              I guess it’s just less risky than sending the judge a life-time supply of his/her favorite cigars or whatever.

            3. “And money spent to corrupt government employees is often the best money spent.”

              You’d know considering how much you’ve spent getting softiewaftie patents wouldn’t you?

  32. Let’s just abstract away all inventions as being abstract. After all any improvement to a bicycle is after all just the abstract idea of turning a wheel with your feet. All chemistry is just joining molecules in different ways. Really in the big picture they are all just an abstract idea of joining atoms.

    Let’s just bag the whole thing as abstract…maybe chuck in their natural law just to make it sound good.

    1. Let’s just abstract away all inventions as being abstract.

      Or you can just pound on your strawman and we can all watch.

      1. It is much more fun to pound you and your arguments which are more lame than any strawman that could ever be made.

  33. Isn’t that interesting that ole Lemley not only opines on “scholarly” ideas, but rakes in the big bucks presenting them to the Fed. Cir. A true scholar by modern standards. I am sure his next move will be to run for president.

  34. Hmm. Some of the most lucrative and famous patents of recent years are patents on data structures. The Microsoft FAT patents and filename patents along with all other filesystem patents are like this one. Video file container patents (though not video compression patents) are too.

    All those patents are famous in the industry for blocking and retarding innovation, mainly being used to stop competition and interoperability rather than earn revenue from inventions that others want to use. Locking in customers is valuable but not how patents are supposed to work; there is supposed to be a quo for the quid.

    This one looks like it’s intended to monopolize (non copyrightable) information rather than protect an invention.

    1. “All those patents are famous in the industry for blocking and retarding innovation, mainly being used to stop competition and interoperability ”

      They didn’t stop interoperability.

      If you want to piggy back on Microsoft’s success by doing something that inter-operates with DOS or Windows, don’t you think you owe Microsoft a little something for the ride? Pay them their FAT royalty and inter-operate.

      Otherwise, make your own computer and use your own FAT.

  35. Dennis —

    Your statement that : one of two interesting questions is that “(2) whether the concrete and practical purposes of the invention needs to be recited in the claims” implies that the claims don’t recite the concrete and practical purpose.

    However, the concrete and practical purpose is recited in the preamble:

    A device profile for describing properties of a device in a digital image reproduction system to capture, transform or render an image.

    You see, a pixel is described by 3 numbers representing red, green and blue. However, if a particular pixel has a red value of 117, what does that mean? If one is concerned with accurate color reproduction, one needs to know the characteristics of the device that generated the pixel value. What’s more, one needs to know how those characteristics compare to the those of the color reproduction device (display or printer). This is even a bit more complicated when the reproduction device is a printer than does not use red ink, but instead uses cyan, magenta, yellow and black colorants.

    The invention is extremely important to anyone who wants to sell clothes or art on the internet or in a printed catalog, or anywhere else that color accuracy is important.

    These claims are a perfect example as to why all the nonsense about machine or transformation tests, mental steps, math being ineligible subject matter needs to be overturned. Don’t we want to promote solutions to problems that allow internet and catalog commerce to flourish? What about global warming? Think of all the returns correct color reproduction avoided and the associated carbon footprint!

      1. I know it is ridiculous. And, he plasters us with claims he doesn’t like constantly in all the threads. He is a public nuisance.

    1. These claims are a perfect example as to why all the nonsense about machine or transformation tests, mental steps, math being ineligible subject matter needs to be overturned.

      Or the exact opposite is true. Gosh, I wonder what the Supreme Court would say. For that matter, I wonder what anybody who isn’t invested in the status quo of promoting computer-implemented junk would say. Actually, I’m just kidding. Everybody knows the answer to that question.

      Don’t we want to promote solutions to problems that allow internet and catalog commerce to flourish?

      Let’s ban cars. That makes as much sense as promoting patents on junk like this.

      What about global warming?

      Anyone here think that the patent teabaggers care about global warming? If so, I’ve got a bridge to sell you. It’s in Alaska. And you can learn a lot about Russia in Alaska. Just ask John McCain. He’s sooper smart that’s why he’s on those Sunday talk shows every week.

    2. You are apparently a newcomer to the field of patent law. Nothing else explains what seems to be your obsession to understand what an invention really is, what it does, and the significance of same before launching into a diatribe proclaiming “But it’s just data. But it’s abstract. But it does not look like a “real” invention. Slam 101 on that sucker and keep it and others like it from sullying Title 35, no matter how beneficial it may be to promoting the useful arts in specific industry segments where it serves an incredibly important and necessary purpose. So what if the blue in the actual image taken by imaging device A comes out as green when reproduced by reproduction device B? Have people lost the ability to use their imagination substituting colors on the fly?”

      1. Pro Se – while Les will often leave behind the sense of law in his positions (taking a somewhat more natural rights view of invention), you are off-base here in attempting to diminish what Les is talking about.

        You ask “who cares?” and then misdirect with some non sequitur of people being able to do something on the fly. Such an example has nothing to do with the technical control of not letting colors go all haphazard in the technical processing vehicles. The answer to your question of “who cares?” is that some people very much care to a very great extent. Your lack of understanding this incorrectly colors your view of patent eligibility [pun intended].

        One example that probably never crossed your mind is the benefit of ‘true-color’ reproduction of medical images, where color may play a very important functional context.

        As pointed out below, the functional relationship is a key driver. Anyone (honest and objective enough to care) will easily realize that functionality is the realm of patent law – that functionality is directly tied to utility; that the law of 101 – the wide open gate that 101 is intended by Congress to be – has two relatively simple facets:
        1) be in a particular category – not intended to be a difficult thing to meet – see the dicta in Chackrabarty on which category something being in not being all that critical of a driver, and
        2) be of utility to be something in the Useful Arts (which is to say, not be in the fine arts).

        101 really is that simple.

        It is only when extra-statutory philosophical mashings of the nose of wax are involved that we find ourselves twisted in knots and hopelessly throwing up our hands and begging the Supreme Court to make sense of their own mess.

        1. Quite the opposite…my comment was presented in a tone intended to chastise all the naysayers. You see, I am well aware of what digital imaging profiles comprise, their complexity, and why they are absolutely necessary in the relevant industries. I am an avid photographer, and any attempt to present a color accurate print in a specific medium (photo scan, online, photo print, monitor, etc.) is impossible without such profiles. If this was just a mere assembly of “data”, I could have avoided much angst and expense when converting several thousands of transparencies I have taken over the years to digital format. Silverfast (the scanning app) “ain’t” cheap, and would be worthless without profiles for retaining true image fidelity (color, dynamic range, etc.).

        2. I believe Pro Se was responding to Malcom not me, as I have never launched “into a diatribe proclaiming “But it’s just data. But it’s abstract. But it does not look like a “real” invention. Slam 101 on that sucker and keep it and others like it from sullying Title 35, no matter how beneficial it may be to promoting the useful arts in specific industry segments where it serves an incredibly important and necessary purpose.”

          1. My apologies to both Pro Se and if in any way slighted, Les, then if I have aimed at you in error.

            Please continue to chastise those naysayers.

          2. My comment was actually in response to your post, but not intended to be critical of you by using at the location I did the word “diatribe”. My intent was to convey that before screaming “I’ts data, it’s data, etc.) at the top of their lungs time would be well spent, as you appear to have done, actually taking the no-small investment in time necessary to understand digital imaging technology and that associated with profiles in particular. Profiles derive from a multiplicity of relevant sources that are anything but a set of simple number-crunching equations, and that the elements in any single profile are not what I would consider “data” in the ordinary sense of the word.

            Now, maybe some of those critical of your comment may be correct to some extent that “data” is what the invention is all about, but I do believe it fair to say that absent a thorough understanding of what the invention entails one engages in mere gum-flapping to declare it something that seems to me to be little more than wholesale, faith-based adoption of a view first articulated by others who almost certainly have little, if any, substantive knowledge of the relevant technology, industr(y/ies), etc.

            I subscribe to a “101 door” to which is pinned a sign encouraging entry across a wide range of possible entrants, and then using other provisions to determine if such entrants will eventually exit with paper in hand.

            1. It was this bit that threw me. I assume now it was typed with tongue in cheek: “You are apparently a newcomer to the field of patent law. Nothing else explains what seems to be your obsession to understand what an invention really is, what it does, and the significance of same before launching into a diatribe proclaiming “”

              …as I believe there are many in patent law that would agree with my position. It is the anti patent crowd, who are unfamiliar with patent law, or are enraged by it that think the manipulation and creation of data is not patentable.

              These days a large percentage of patent practice is attempting to protect inventions related to inventive ways to generate and manipulate data to arrive at solutions to problems.

              I wonder how many patentable algorithms are being applied to ultrasonic signals to filter noise and identify sonic signatures in an effort to locate the missing plane…..

      2. The deep confusion of the patent teabaggers is summed up nicely in this comment from “Pro Se”:

        Slam 101 on that sucker and keep it and others like it from sullying Title 35, no matter how beneficial it may be to promoting the useful arts in specific industry segments where it serves an incredibly important and necessary purpose.

        It goes without saying that data is extremely important and necessary for everybody on earth, in all kinds of contexts.

        It’s for that reason (in part) that patents can’t be used to protect information and other abstractions, no matter how valuable the information is perceived to be. Of course, the mere fact that something has value is enough for the patent teabaggers to demand their right to own and control that thing with patents. That’s how we got into this mess, after all.

        What’s always been fascinating is that nearly all of the patent teabaggers (with few exceptions) do seem to stop short of demanding patents on, say, non-obvious instruction manuals or purely mental processes. They never explain why, however, given that their simple-minded argument that “patents belong wherever there is valuable use” would seem to apply equally in those contexts.

        Maybe one of them will offer up a coherent policy explanation for the distinctions they draw here and now. That would be new and refreshing. But more likely they’ll just pretend that “the law” is some immutable thing that should never be questioned unless of course it’s being applied in a manner that is unfavorable to their grifting interests.

        1. Whether or not a purely mental process can be patented is of no interest. If it is purely mental, then no one would ever know you infringed such a patent. Accordingly, there is no way to enforce such a patent.

      3. Mr. Se, patent image processing, patent the improved film or CCD, patent the improved camera, patent the physical image that included the new “data.”

        Nothing prevents the protection of the idea in patents.

        Your objection is that you really do not want to live by the statutes and rules because there are legal ways of accomplishing the results you want but you just do not want to abide by them.

        1. Your objection is that you really do not want to live by the statutes and rules because there are legal ways of accomplishing the results you want but you just do not want to abide by them.

          Ned – love your AOOTWMD.

          1. Care again to try to defy Black’s Law Dictionary and the holding in Alappat?

            Surely, that is something that you just do not want to abide by. Clearly, that is why you personally continue to struggle with the case of Nazomi.

            Tell me Ned, with your penchant for wanting to understand case law, why is it that you have not bothered at all to personally even try to understand that case for yourself? Why is it that you are so eager to simply throw up your hands and live in your (purposeful) ignorance?

            Why does it seem like such an imposition for me to ask you to come to an understanding of that case of your own accord?

            Why do you run away?

        2. Ned –

          You said:

          “patent the physical image that included the new “data.””

          But aren’t you one of those that says you can’t combine something old with something that is otherwise unpatentable to arrive at something patentable?

          The invention is in the profile including the color characteristics of the device generally and local variations in those general characteristics at particular spatial locations.

          There is an image implied, but there is no need to burden the claim to require the presence of an image. It is the particular way of recording the3 characteristics of the image generation device that is at issue.

          1. anon, I think you deliberately misunderstand me.

            Think MOT. The image in tangible form is a manufacture. It is transformed in a useful way with the new kind of data such that reproducing apparatus will display it more accurately.

            Also, a method of displaying an image using such data to transform the image is certainly eligible. See, e.g., Alappat.

            But the data itself is neither a machine nor a manufacture.

            1. Ned,

              You are replying to Les and not to me. And even with Les, do youreally want to fall back to MoT after I just finished showing you that the Supreme Court held that MoT was not required? Are you reading the claim, including the preamble, in a manner that a person having ordinary skill in the art to which the invention pertains would?

            2. The data is an article of manufacture. If it wasn’t manufactured, where did it come from?

              And, the data isn’t in anyway present in the printed image. The data is associated only with the digital image data and is used to create the printed image.

              There is no appropriate way to claim the data in association with the printed image.

              And all of this is unrelated to the question I asked you. Even if what you suggest gets the claim the protection as a manufacture, doesn’t it fail under your philosophy because it combines something old with something otherwise unpatentable (according to you).

            3. Les, not at all. The essence of Diehr was that the new math combined in the old process to produce an improved result.

              If one links the data into images and to a process of display of the images that uses the data to improve the images, I think the claim becomes eligible.

              This is really a claim form issue more than anything else.

            4. is really a claim form issue more than anything else

              Hmm, seems like you are slowly coming around to what I have posted today.

              It is OK to say “anon is right.”

            5. Even if what you suggest gets the claim the protection as a manufacture, doesn’t it fail under your philosophy because it combines something old with something otherwise unpatentable (according to you).

              Bingo – as I pointed out on the long thread (and to which Ned not so surprisingly ran away from), his position here is simply incompatible with his position on “Point of Novelty.”

              That’s why he runs away when I ask him to explain the “Point of Novelty” in Diehr. It was a software program.

  36. For arguments sake – let’s suppose that Alice prevails.

    What then to the gist of this write-up?

    1. Anon – In the hypothetical world where Alice prevails, I think that the court would still find these claims unpatentable under Section 101 — especially the data structure of claim 1.

      1. And a machine sitting there doing what is claimed should not be eligible for a patent why?

        Let’s say it is implemented in a special purpose circuit.

        1. a machine sitting there doing what is claimed should not be eligible for a patent why?

          1. A machine sitting there, processing new information or processing old machine in a new way.

          There’s some prior art to chew on. What’s the structure, by the way?

          1. What was the structure in Deener?

            How come you don’t have conniptions that Deener excludes a person from processing grain according to the Deener method?

            A new machine obviously or use 102 and 103.

          2. What is the structure — APE question.

            A machine can be built that performs the method. The machine would be a special purpose machine. That is the structure. That machine is equivalent to the software. And, to be clear, if the machine is built differently it may take millions of times longer and use millions of times more energy.

            Sheesh. That is ee/cs 101.

      2. Prof. Crouch,

        Possibly yes possibly no

        The court will have to look at two things:

        1) is there a functional relationship between the described data and something else, and

        2) the impact of the beginning of the claim. Is this merely intended use, or does this verbiage have a critical relationship to the life of the claim.

        In 2) one can easily make the argument for the latter, which then opens the door for 1) to apply through an application of the controlling law of the exceptions to the judicial doctrine of printed matter.

        One can see your bias (and this is distinguished from dishonesty for the intellectually honest impaired) is apparent in the ready jump to one side here without noting the nuances and subtleties that an objective teacher would see as valuable teaching lessons in the admittedly complex world of patent law.

        1. Thanks for, um, joining the conversation (?) in your usual manner of adding absolutely nothing Malcolm, while completely misrepresenting me.

          @tta boy.

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