Guest Post by Prof. Sichelman: Stop Bashing Academics: Why Mark Lemley, Peter Menell, and Rob Merges are Highly Qualified to Teach and Write about Patent Law

Guest Post by Prof. Ted Sichelman, University of San Diego, School of Law

Recently, Hal Wegner has been circulating and commenting upon the qualifications of patent law professors. For example, he lists whether patent law professors at the Top Ten IP programs as ranked by US News & World Report are licensed to practice at the USPTO, have an “understanding” of international/comparative patent law, or clerked at the Federal Circuit (see below). According to Wegner, these “credentials” are “particularly” and “uniquely” valuable (in some cases, “essential”) for professors to make “optimum” patent policy reform proposals, especially those concerning PTO practice and international harmonization.

(To provide some background, I provided Wegner a list of names of all professors in the U.S. who currently teach and write about patent law at US News ranked and unranked IP programs, with the understanding that he would circulate the list to his readers. After I sent Wegner my list, without my input, he annotated it (along with other names) with various credentials and provided commentary and alternative lists, such as the one reproduced below. Because I believe Wegner’s analysis is flawed—and given my initial participation—I feel personally obligated to respond.)

NaplesNotably absent on Wegner’s list above are any professors from Stanford, Berkeley, and George Washington (GW), the top ranked IP programs in the nation. (The same holds true for many other schools, both in and outside of the top 10. I focus on the top three schools to underscore the problems with Wegner’s approach.) Rather than effectively denigrate these programs, Wegner should have recognized the transformative role that these schools have played historically (for GW) and more recently (for all three schools) in elevating patent law to a prominent place in the academy and developing unparalleled educational opportunities for future patent professionals and scholars.

Importantly, an unintended implication of Wegner’s discussion is that patent law professors without the stated qualifications—particularly, a patent bar registration number—are unfit to teach and write about patent law more generally. For instance, on his e-mail blog, Greg Aharonian recently circulated the comments of an anonymous patent lawyer who referred to Stanford’s Mark Lemley as “one of a small army of law school academics that have built very successful . . . careers studying intellectual property law, especially patent law, albeit without ever actually having practiced before a patent office, done research, or even studied science or engineering.”

These sorts of criticisms are misguided. First, many patent law professors have extensive patent litigation experience, including on-going experience as “of counsel” lawyers, experts, and consultants. Although having patent prosecution experience is clearly beneficial for teaching and writing about patent law, patent litigation is as well and should not have been disregarded. For instance, Wegner and Aharonian presumably know well that Mark Lemley is a partner at a top-tier IP litigation boutique, Durie Tangri, and spends numerous hours on real-world matters. In fact, he has argued or is scheduled to argue three Federal Circuit patent cases so far this year, has argued before the Federal Circuit eleven times (in addition to four arguments in the regional circuits), and has represented another ten parties on briefs in the court. Additionally, he has been counsel for a party in the Supreme Court twice in patent cases (both patentees, incidentally). Lemley has been the lead author or co-author on 40 amicus briefs in the Supreme Court and the courts of appeals. And if that were not enough, his articles have been cited nine times in Supreme Court opinions and 145 times by courts overall. Finally, he’s conducted extensive empirical analyses of USPTO and judicial practice in many academic papers. (Ah, I forgot to mention that he’s represented parties in 85 cases in the district courts, too.)

So Lemley clearly is highly qualified (in fact, uniquely qualified) to write about and teach patent law. Nonetheless, Lemley often is maligned by practitioners because of a proposal he made (along with now Federal Circuit Judge Kimberly Moore) about a decade ago to restrict continuation practice. Yet, regardless of whether you agree with his views—and I often disagree with him—he’s clearly well-situated to write about and suggest reforms concerning PTO practice, the Federal Circuit, the Supreme Court, and the Patent Act more generally. In this regard, Lemley has written over 125 articles, many of them offering outstanding suggestions to reform the patent system, such as his idea for “gold-plated” patents. Lemley should not be unfairly singled out for one unpopular proposal or simplistic mischaracterizations of his views.

In a response to e-mails Wegner received asking why patent litigation was not listed in his chart, including one of my own, he responded that while patent litigation “may well be the best practice background for a patent academic . . . . no patent faculty seeking to make an optimum contribution to patent policy or harmonization can do so without  someone on the faculty having expertise in international/comparative and Agency practice.” Wegner’s position is too sweeping. Although it is certainly useful to have faculty members who have prosecution experience—and Wegner’s criterion of simply having a patent bar number is in any event not too indicative of such experience—it isn’t necessary to have such experience to make outstanding policy proposals, even when it comes to PTO practice. Indeed, only a few judges at the Federal Circuit itself would meet such criteria. It seems hard to fathom that Wegner believes that the Federal Circuit cannot make an “optimum” contribution to patent policy, including practices at the PTO, given their lack of such credentials. The same should hold true for academics. And to go one step further—as does the anonymous lawyer’s blanket assertion on Aharonian’s e-mail blog that a professor cannot sucessfully “study,” write about, or presumably teach patent law without having worked as a patent prosecutor or an engineer—is simply preposterous.

Second, many patent law professors, such as UC Berkeley’s Peter Menell and Rob Merges (also absent on Wegner’s chart)—in addition to having extensive prior and on-going experience as experts and consultants in patent litigation matters—have spent numerous hours writing casebooks and patent law practice guides. Rob Merges and John Duffy’s Patent Law and Policy is the leading patent law casebook, and contains extensive commentary from its authors. Merges is also co-founder and Senior Policy Advisor of Ovidian LLC, a Berkeley-based consulting and informatics company specializing in assessing and valuing patent portfolios. That experience is invaluable for the next generation of patent law professionals working in the emerging patent “marketplace.” Finally, because Berkeley—like GW and Stanford—offers separate courses in patent prosecution and patent litigation taught by prominent practitioners, it is hard to see how its students are not getting broad, deep, and practical exposure to patent law.

After co-founding the Berkeley Center for Law & Technology (BCLT) in 1995, Peter Menell soon began working with a team of top patent and other IP litigators to provide an annual four-day intensive training program on IP law and case management for federal judges, as well as numerous other national and regional events. That work led to the development of the Patent Case Management Judicial Guide, a comprehensive treatise that has been referred to as “the bible” for judges and litigators. Menell has also worked with district courts on the development and revision of patent local rules and filed amicus briefs in important IP cases. He also served as one of the PTO’s inaugural Edison scholars. His empirical research on patent claim construction with Jonas Anderson, a former BCLT Fellow—in which they reviewed every claim construction order issued by the Federal Circuit since 2000—was cited numerous times in the Federal Circuit’s recent en banc Lighting Ballast decision. Any comprehensive evaluation of patent law programs would value these qualifications.

The same holds true for professors who write about specific topics in patent law, but do not teach it. For instance, Berkeley’s Pam Samuelson is a world-renowned copyright expert and a winner of the “genius” grant from the John D. & Catherine T. MacArthur Foundation. She occasionally writes about software patents, including for her column in the Communications for the Association for Computing Machinery (ACM) journal, which is mainly read by software and computer science professionals. As Professor Samuelson’s work shows, one need not be an expert on every nuance of the patent system, especially the nitty-gritty of prosecution, to make sound reform proposals.

Other academics are permanent and full-time but not on the “tenure-track.” For example, BCLT Executive Director Robert Barr—who directs the Berkeley IP program and organizes numerous IP events there—is former chief patent counsel at Cisco, is licensed to practice before the PTO, and has long been a leader in the Silicon Valley and national patent law community. Along with John Whealan—former Solicitor at the PTO and another highly-regarded national leader in patent law who directs GW’s IP program—Wegner left Barr off the list.

Finally, many patent law professors have significant industry experience. For example, blog commenters on a recent Patently-O post of mine referred to me as “ivory tower” and as having “a lack of ‘real world’ experience.” In fact, before becoming a law professor, in addition to practicing patent litigation for four years, I founded three tech companies, raising nearly $5 million in financing, including being CEO of Unified Dispatch, a software company that makes innovative speech recognition systems for ground transportation companies. At Unified Dispatch, I designed and oversaw most of the company’s software products, which included writing detailed specifications and managing programmers and other engineers, and was the lead inventor on several patent applications and one patent. As part of that process, I also managed our outside patent counsel for several years during prosecution. Before attending law school, I earned an M.S. in Physics. Since becoming a patent law professor, I’ve consulted and served as an expert on an-going basis in patent litigation matters and related projects. So not only is the “ivory tower” label is inaccurate, it also misapprehends the often close ties between academia and practice.

The same sorts of backgrounds and relevant experience hold true for many other academics who teach and write about patent law. For example, Donald Chisum—yes, the author of the leading patent law treatise—is not registered to practice before the USPTO (he majored in philosophy). Granted, practicing before the PTO is helpful to writing about PTO practice, but would anyone doubt that Chisum is sufficiently knowledgeable to do as much?

I commend Hal Wegner’s efforts in calling attention to the patent law programs and scholars (which is why I assisted him in the process). There are clearly limitations to the US News ranking system, and I agree it’s valuable to see the credentials of those teaching at patent law programs across the country. However, it was irresponsible for him to omit the founders and leaders of many of the most important IP programs on his list of academics with “practical experience” in “key areas” merely because they don’t have a patent bar reg #, don’t have a deep understanding of comparative patent law, didn’t clerk for the Federal Circuit, or aren’t technically “tenure-track.” Patent litigation, industry experience, and other credentials are just as relevant.

Even more troubling is Wegner’s assertion that having someone on the faculty with one of his criteria is “essential” for making “optimum” policy proposals. And most troubling is that Wegner provides fodder for commenters such as those on Aharonian’s e-mail blog that professors without such credentials cannot successfully write about or apparently teach patent law more generally, not to mention commenters on this blog calling professors like me “ivory tower,” when it is simply not the case. Wegner and the commenters should do their homework. Otherwise, their “analysis” remains at best misguided and at worst scapegoating.

Berkeley and Stanford serve—and, historically, GW has served (and soon again will serve)—as model programs for training patent practitioners, scholars, and judges. The same holds true for many law schools I have omitted in this short blog post. Rather than denigrate these schools, Wegner would have done better to highlight the tremendous value offered to students and the patent law community more generally from this talented and highly qualified group of scholars.

760 thoughts on “Guest Post by Prof. Sichelman: Stop Bashing Academics: Why Mark Lemley, Peter Menell, and Rob Merges are Highly Qualified to Teach and Write about Patent Law

  1. Both Sichelman and Wegner make the cardinal error of exalting “qualifications” over “contributions”.

    Academics and practitioners alike should be judged on the quality of their contributions. “Qualifications” are, at best, a guide that can help inform some of those contributions.

    As to the issue of whether “qualifications” mean anything in regard to who is teaching, or who should be able to teach, there is nothing new about a classroom in which the students are much brighter than the professor. Teaching “qualifications” are, in my opinion, only slightly concerned with substance.

    1. I don’t think Wegner is exalting qualifications, but qualifications ARE a useful proxy for content. If you do not have a Reg No, you cannot practice before the PTO, and so your experience of patent law is necessarily circumscribed and removed from a large reality.

      Lets put it another way: how many science professors at top universities have never worked in a laboratory or done research? I’d guess 0.1%. Even so, the lack of industry experience for many science faculty is regarded as a problem for science education.

      Its the same in law. Most of my best profs at G’town were adjuncts who actually did what they were teaching (e.g. evidence being taught by a DC judge).

  2. You know, if I had the time what I’d do is go through Prof. Ted’s specious arguments. What is really telling is that Lemley and Ted don’t admit the affect their proposals would have on real patent practice. Instead when real patent practitioners tell them what would happen, they dismiss it with there is no proof of that, which is outrageous on its face.

    The latest outrage is the proposal to limit any claim that is near functional to embodiments disclosed in the specification rather than the claim being entitled to the scope of enablement for a PHOSITA. This is a perfect example of a square wheeled car being foisted on us with specious arguments and then insulting our dignity by telling us that it will not change patent practice.

    This is why academic have no respect from real patent practitioners. And, this is why Lemley would never debate me. Read what Professor Ted wrote. He never addresses real arguments. What he does is he reacts by writing long posts and then dismissing the arguments in the middle of post with absurd conclusory statements. Lemley and Professor Ted are viciously attacked because they attack our judicial system with their position.

    You see the real arguments would win. Without their forums to protect themselves from having to address the real issues they are nothing. Their arguments are easily exposed as specious judicial activism.

    1. And just look at some of the things that the great and powerful are trying to foist on us so that they can burn our patent system down:

      1) Information processing methods are natural laws.

      2) Software has no structure.

      3) Claims should be limited to only the expressly disclosed embodiments in the specification.

      All three of these are outrageous.

      1. >>”this talented and highly qualified group of scholars.”

        Let me fix that for you:

        “this talented and intellectually dishonest group of judicial activists that want to make a buck while burning down our patent system.”

  3. It’s not that complicated. Just explain to your wife that the software patent chuck wagon has reached the end of the trail.

    1. LOL – because so much innovation is intricately woven in with software, the “Roy Bean” admonition of ‘end of the trail’ is like really on point….

      /face palm

  4. The parallel of “Moneyed Big Corp TV Broadcasters don’t have a real legal position, Moneyed Big Corp TV Broadcasters just don’t like it” between the Aereo case and software patent eligibility cases is awesome.

    link to news.yahoo.com

      1. While I realize the Aereo case is a copyright case, I am really surprised that no thread on that case has been opened up here at Patently-O.

        Other copyright cases (e.g. dealing with exhaustion) have received some nominal coverage, and the Aereo case is highly linked with some of the most delicate patent issues (e.g. data wants to be freeeee!) that the absolute lack of coverage here is a bit surprising.

  5. It seems to me that Mr. Wegner’s comments were specifically directed to whether the Naples Patent Registry was best served by the inclusion of tenured or tenure-track professors. I know very little about the Naples Patent Registry, but I think his point was that by engaging an admission process focused on tenured or tenure-track professors, the process was unintentionally excluding individuals with backgrounds that would benefit the Registry.

    Maybe I am misinterpreting – his posts are blithely brief – but a criticism of his comments that fails even to mention the Naples Patent Registry is ill-conceived.

    1. The first time I argued with Aharonian as in 1984. I thought he was an idealist then that didn’t understand our market system.

    2. And I beat the pants off of Aharonian back in 1984 and I could do the same now. His attitude appears to be one of self interest–to my mind. I used to use his board back in the 1980′s.

  6. So, to sum up the entire thread, the great and powerful Lemley won’t come and play nor will his second. The academics think we are mean. Ned denies he is a paid blogger and gets real mean when you say he is. MM is a teabagger. MM has deep scars from being kicked off Gene’s site. 6 has gone completely to the dark side. the academics have a whole dealership full of cars with square wheels they are trying to sell us. NWPA reins supreme over the academics that will not debate him in an open fair debate with standard type of debate rules.

    The great and powerful Lemley remains behind his curtain.

    1. NWPA: NWPA reins supreme over the academics that will not debate him in an open fair debate with standard type of debate rules.

      You can’t make this stuff up, folks.

    2. Night and anon on a claim to a book with a new recipe: A book is an article manufacture and therefore the claim as a whole is directed to patentable subject matter. Furthermore, the new recipe describes a process which produces a useful result. Therefore the recipe is functional with respect to cooking. It too is eligible.

      Night on a mathematical algorithms: information processing reduces entropy, therefore mathematical algorithms are eligible even if performed by a human being.

      Anon on bullets, changing the gunpowder in a cartridge used by the gun defines a new gun.

      Anon on the music: the player piano with a new song defines a new machine, but the problem is the song is not within the useful arts.

      Night on anyone who disagrees with his views, they are trying to burn down the patent system. Furthermore, he feels entitled to engage in libel and slander to support his arguments.

      1. Ned – your apparent absence of any legal understanding to the exceptions to the judicial doctrine of printed matter is most alarming.

        Your gunpowder change surely changes the manufacture, but you have to ask yourself if the exception is analogous to the exception that would apply in the exceptions to the judicial doctrine of printed matter.

        Know your limitations!

      2. but the problem is the song is not within the useful arts.

        Must I share the quotes from both Benson and Flook that you never seem to remember to include in the discussions?

      3. feels entitled to engage in libel and slander to support his arguments.

        Once again Ned, your bias removes the credibility of your concern – by far much worse is Malcolm, whom you seem to admire. It is beyond belief that you find NWPA unacceptable and yet would applaud a far far far worse actor.

        1. Thanks I think anon. But, I think I am a positive actor on this board. I think that any modern thinking person realizes that specious arguments that result in destroying are patent system are far more vulgar and violent than any words I could type. Benson is a good example of vulgarity through specious arguments.

          I merely call people out. Ned has presented his argument over and over again here that information processing patents are fine as long as they recite a ROM and then not admitted that that would, in effect, mean the end of all patents for information processing as they would be unenforceable in all but a few cases. Ned is an example of vulgar violent person by presenting specious arguments that may have the weight of affecting real law and policy.

          Let’s be real fellas. What I just wrote is all how modern thinkers analyze situations. Politeness can hide emotionally vulgar and violent behavior. Lemley’s assertion that software has no structure is such a case. The square wheel proposition. Lemley’s assertion that a functional type claim should not include the scope of enablement for the specification is vulgar and violent.

          Be real.

          1. I completely agree that the harm from purposeful and knowingly specious arguments falls to the unethical side of the fence.

            When combined, that type of CRP and the type of CRP that flows from those unwilling to take a conversation to its logical conclusions results in a RunAway-and-CRP-again syndrome.

            The shilling and the soap boxing are certainly ‘First Amendment rights.’ No one is really saying otherwise.

            The point to be brought up though is that many of the players here are not acting in roles of individuals and thus there are more constraints and pieces to the puzzle than just the First Amendment.

            Like it or not, this social media vehicle is a legal platform – and legal ethics do not go away just because someone can post pretty much whatever they want to.

            Those of us that are attorneys have higher duties – and not just duties to specific clients.

            The gross – and yes even rising to an objective level of abusive – deceit in posting is not and cannot be excused by someone merely mouthing “First Amendment.”

          2. Night, just what is specious about Benson again? I pointed out that Richard Stern urged the MOT and that this is the language from Deener. What is specious about this?

            Now you have urged that information processing reduces entropy. I agree. But you do not agree limit your claims to operating on real data and specific applications, but want to claim information processes unapplied to any application. For example, the math in Diehr was applied to a molding process and the math in Alappat to a graphics processor for a display.

            This is your debate; but in reality, it is an issue long settled beginning with cases like Morse. It is you, Night, that refuses to argue effectively because you say things like “Benson is specious” without ever explaining why.

            1. Oh, and just let me add this, the only principle truly established in Benson was that math is ineligible and that prescribing particular means for calculating is not sufficient to make a useful application.

              You hear this repeatedly in the oral argument in Alice in the debate about the abacus.

            2. only principle truly established in Benson was that math is ineligible

              Whew – it’s a good thing then that software is not math.

              Plus it is a good thing that Diehr came along and showed that a PON of just a computer program is good enough.

              ;-)

            3. anon, there was no “point of novelty” in Diehr. It was the combination of thermocouples inside the mold with a continuous recalculation of mold process end time.

            4. Night, “are information processing methods natural laws?”

              No. But they may use natural laws, such as F=ma.

              But as a category, information processing methods are not necessarily trying to preempt laws of nature or mathematical algorithms. Claims to information processes that are more than mere mental processes should be eligible unless there is another reason for their exclusion — such as useful Arts.

              That is why Bilski was so troublesome — having eschewed the ONLY legal reason why the Bilski claims could have been declared ineligible, the result in Bilski defies explanation.

              But what does this have to do with Benson, which was limited to Math — a “kind” of law of nature in that math expresses a fundamental truth that cannot be the subject of a patent. See, Flook, fn. 15 and O’Reilly v. Morse.

            5. Ned – you cannot have your little pet “PON” only when it is convenient for you.

              That’s kind of the point of my sticking this in your eye.

            6. But what does this have to do with Benson, which was limited to Math — a “kind” of law of nature in that math expresses a fundamental truth that cannot be the subject of a patent. See, Flook, fn. 15 and O’Reilly v. Morse.

              Really Ned – you are going to drag out the footnote in Flook and not include the quote in the body of Flook that I have to remind you of yet again?

              Your, um, selectivity is a bit suspicious.

        2. anon, PON is a concept that has to do with functional claiming and perhaps with 101. As you have noted before and the Supreme Court agrees with you, novelty can be in a combination of old elements. See, e.g., Faulkner v. Gibbs where this point is emphasized.

          The Diehr court told us what the alleged novelty was — constantly determining the temperature inside the mold and constantly updating the cure time. The claimed mathematical algorithm was (admittedly) old and didn’t even have to be in the claim. I have no freakin’ idea why the PTO pushed this all the way to the Supreme Court. However, the fact that it did illustrated that Benson and Flook were not “clear.”

          Steven closed with these remarks in Diehr that truly apply even after Bilski,

          “he consistent concern evidenced by the Commissioner of Patents and Trademarks and by the Board of Appeals of the Patent and Trademark Office has not been shared by the Court of Customs and Patent Appeals, which reversed the Board in Benson, Johnston, and Flook, and was in turn reversed by this Court in each of those cases.[46]

          219*219 Scholars have been critical of the work of both tribunals. Some of that criticism may stem from a conviction about the merits of the broad underlying policy question; such criticism may be put to one side. Other criticism, however, identifies two concerns to which federal judges have a duty to respond. First, the cases considering the patentability of program-related inventions do not establish rules that enable a conscientious patent lawyer to determine with a fair degree of accuracy which, if any, program-related inventions will be patentable. Second, the inclusion of the ambiguous concept of an “algorithm” within the “law of nature” category of unpatentable subject matter has given rise to the concern that almost any process might be so described and therefore held unpatentable.”

          1. and perhaps with 101

            Again, Ned – you cannot have your PON when it is convenient for you and then deny it when it is not.

            Choose a side.

            Stick with it.

            Let me know.

            btw, “The Diehr court told us what the alleged novelty was — constantly determining the temperature inside the mold and constantly updating the cure time – you need to be a little more critical on this, as it was merely the computer program that provided this – all else was old in the art.

            We both already know that, but being upfront and clear on this would be most helpful – especially in the days ahead awaiting the Alice decision.

            illustrated that Benson and Flook were not “clear.”

            It that the same clear that I keep pushing on you (you know, to include the “We do not so hold” quote from Benson and the direction from Flook not to say that Flook is anti-software)?

            Steven closed with these remarks in Diehr that truly apply even after Bilski,” – is this more dicta? Given as anything Stevens said in Diehr was from a dissent…

            Perhaps you should pay attention to who says what in each case in order to put the quotes in proper context.

            1. anon, Benson and Flook were about mathematical algorithms. The only mathematical algorithms involved in Diehr were stated in one step of a multi-step claim. That single element read,

              “repetitively calculating in the computer, at frequent intervals during each cure, the Arrhenius equation for reaction time during the cure, which is

              “ln v=CZ+x

              “where v is the total required cure time”

              There are a number of other claim elements in the claim that do not require a computer, and there are a number of other computer program elements in the claim that do not require math.

              The only math involved in the claim was old. It was used before to calculate mold time.

              There are a host of new elements in the claim that are not in the prior art. There are new physical elements to measure temperature inside the mold. There is the requirement to constantly provide this temperature to the computer. This goes on and on and on.

              How one could say there is a point of novelty in this claim is beyond me. But, one this is for certain, the math was not new.

            2. anon, you and I will agree in principle that Benson did not categorically exclude software.

              Moreover, Flook cabined Benson to mathematical algorithms.

          2. See, e.g., Faulkner v. Gibbs where this point is emphasized.

            (sigh).

            Ned you continue to try to draw law from an abrogated case – in this instance, by leaning on Faulkner and some comparison in that case to Halliburton.

            Since Faulkner was decided in 1949, that case cannot lend support to your attempt to deny what Congress did in 1952.

    3. “6 has gone completely to the dark side”

      I wouldn’t say completely. After all, I still feel like it’s 50/50 that congress should or should not grant software patents. It’s just one of those things that should be sent to the reps of the people since it will affect so many people.

      1. I still feel like it’s 50/50 that congress should or should not grant software patents.

        (sigh) they already have 6. Your belief system just gets in the way of you realizing this.

      2. Well, 6, if Congress passes a law then I will be fine with it. But, these “professors” that are raking in millions of dollars burning our system down and selling the ignorant masses specious arguments are not OK with me. I don’t like them. I think they are vulgar and violent people.

        1. And please, children, do I have to cite books on analyzing political arguments to get you to understand that knowing presenting specious arguments by a professor to get a political agenda through is a vulgar and violent act against our judicial system.

        2. “Well, 6, if Congress passes a law then I will be fine with it.”

          And so would I. The issue is of course the status quo being the way it is. For both of us actually. I don’t think that software, as a category or things in existence, should even be considered in the big 4 since software itself is fundamentally a different thing than the things mentioned. But the status quo is that they consider it such anyway, and so I, and recently the courts, take other ancillary measures. And we’re taking more ancillary measures year by year. And of course on the other hand, you’re upset with the status quo where they’re starting to bust people for claiming abstract ideas, signals, or invalidating claims because someone could carry out an analogous process by hand. Those happenings of course cuts a big ol chunk into your bread and butter. And so you take ancillary measures.

          I submit that doing those sorts of ancillary things on both sides distracts from the overall issue, which should simply be tossed to congress at some point for their explicit approval or disapproval. Once that is done, then we can all let the whole issue be done with and we wouldn’t have all these ancillary matters to deal with.

          The only way that I see this happening though is for the supremes to get tired of the game playing and invalidate them all to force the hand of congress. Do you see any other real way forward to getting congress to have an explicit say?

          1. I don’t think the SCOTUS will do that. Actually, 6, I agree with you that this is a giant waste of time to fight about software. Congress should make the law clear. Not sure what is going to happen, but my gut is telling me that Lourie will get a much-deserved smack down by SCOTUS.

          2. LOL – “I don’t think, I don’t feel, I am taking ancillary measures…

            Better idea: accept what the law actually is and do your Fn job.

  7. Tr0llb0y: Maybe you want to next visit my magic box full of electrons, protons and neutrons – since you seem to want to think that “it’s all in there” and since the items themselves are all “in there” and the mechanism for combining any electron, proton and neutron is “in there,” then all combinations are de facto “in there.” Can you grasp the similarity that must play forth with how you want your “facts” to be…?

    The best part of Tr0llb0y’s relentless nutsanity and strawman-molesting is that he really believes he’s “winning.”

    Of course, when these “arguments” blow up in his face in court (to the extent anyone is desperate enough to make them in the first place — thankfully most state bar’s offer all kinds of mental health services), then he and his buddies just pump up the ol’ smear machine — “It’s all those meddling academics without reg numbers!!!” “Lemley is paid by someone!” “Communists hate patents!” “Colleen Chien is an alien from another planet!” etc etc etc

    It’s super funny and kinda sad at the same time. Amazing that these folks keep right at it, after all these years, when it’s perfectly clear that a lot of people are closely monitoring their endless failures, their transparent self-serving “arguments”, and desperate attempts to avoid engaging with reality at all costs.

    1. Lovely and massive AOOTWMD – once again Malcolm, your venture forth with no points of law or fact in order to make any point whatsoever.

      Wipe away your attack and you are once again left with nothing.

      Try something – anything of merit.

      1. no points of law or fact

        The facts in my comment are easily found right here in these threads, Tr0llb0y. Maybe when you and your fellow swill-serving sycophants figure out how to wire your jaws shut we’ll have less facts to point to. But I don’t expect that to happen anytime soon.

        1. link to arstechnica.com

          The two financial “inventions” tossed out on Wednesday didn’t originate in [Intellectroll Ventards]‘s labs, nor with programmers or any bank—they both came from the homes of patent lawyers.

          The ’137 patent was invented by Mary Tannenbaum, an electrical engineer who retired many years ago from AT&T. Her husband, David Tannenbaum, is a retired patent lawyer, who until last year practiced in the Dallas office of Norton Rose Fulbright. He wrote the patent, turning his wife’s home budgeting ideas into a piece of intellectual property….. “Based on her background as an engineer, working on software and things for computers at Bell Labs, she realized that she could do this in a database,” said Tannenbaum.”

          Because you need to be engineer to realize you can put data in a database! Is Tannenbaum “intellectually honest”? Sounds like a bottom-feeding grifter to me, just another scummy lawyer looking for an easy paycheck and willing to do and say anything to get that done.

          The inventor of the ’382 patent, which claimed essential Web functionality, is also a patent lawyer. Gerald Halt practices at a Philadelphia IP law firm, Volpe and Koenig, where he is also firm president. Before he was a patent lawyer, he worked for six years at the Philadelphia Electric Company. His resume does not suggest any technical work in finance or software….

          Halt’s patent, which he wrote and prosecuted himself, contains breathless prose about the Internet (“a global computer network that is rapidly changing the landscape of the business community”) combined with the promise of “an advanced Internet interface” between users and providers. It’s essentially a description of how providers could tailor their websites according to information about the user.

          It’s essentially a piece of toilet paper, and it was always. But Nathan Myrvhold, who made a deal with this awesome bottom-feeding “inventor”, is sort of obsessed with toilet paper. Probably it’s because of the food he eats.

            1. the mantra that “lawyers are bad”

              I don’t see that mantra. I do see the mantra that “bottom-feeding scumbag lawyers are bad, and give decent lawyers a bad name.”

              That’s a pretty popular mantra, all throughout the Internets and elsewhere.

              [shrugs]

          1. Again, we have MM and his hindsight reasoning. Let’s not forget that when challenged to write claims to what will be three to five years out, that he produce garbage.

            So, the teabagger MM again just blithfully ignores his own failure and pushes on. Hindsight is tough to understand. Probably near impossible for someone from his simian species.

            And so it goes…

    1. MM, It’s the subject matter protected by the claims that determines eligibility, not the applicant’s (or the defendant’s) characterization of the subject matter as a new “machine” or a new “process.”

      No doubt. With programmed computers, the issue is whether the computer is new – otherwise the claim really is to a method and not to a new machine.

      This is why I found Perry’s concession that the system claims at issue defined a “improved” machine. Kennedy pounced on Philip’s opening statement to this effect and had him repeat it.

      I daresay, a new machine is eligible. I think Perry might be in deep shirt on the system claims.

      1. This is why I found Perry’s concession that the system claims at issue defined a “improved” machine.

        I don’t think there was any disagreement as to whether Prometheus’ claims “defined an improved process”.

        So what? 9-0 tankage.

  8. So, basically what people are telling me is that this entire post and thread is because I am mean to the great and powerful Lemley.

    Let the great and powerful Lemley speak for himself. I will cover my ears for I know his voice carries the weight of a tenured Stanford Professor and multi-million litigator as well as a national celebrity. I will gladly engage in a real debate on one of the topics that I claim indicate that he is intentionally burning the patent system down. I challenge you.

    1. Even before any such debate is contemplated, let’s see the parties (all of the parties) come to an understanding of certain basic underlying facts:

      1) Software is a manufacture and machine component, made by man for a utilitarian purpose.

      2) Upgrading a machine with the introduction of new software creates an improved machine.

      3) Software is equivalent to firmware and is equivalent to hardware.

      Facts are facts people – if you cannot start from this baseline, one must wonder why.

      1. Anon, I must admit I envy your self-assuredness. However, declaring in advance the 3 hottest debate points to be off-limits in a proposed debate isn’t really being, to use one of your favorite phrases, “intellectually honest”, is it?

        As you are undoubtedly aware, there is a significant number of computer and legal professionals that consider your “facts” the 3 most egregious computer-related mistakes in decisions (or dubious interpretations of those decisions) from a series of overly patent-friendly justices.

        Your position that those findings are beyond question or debate leaves no room for the possibility that those earlier erroneous (in some people’s views) decisions could be overturned, or re-interpreted or clarified in a way that conforms more closely with what I would term “reality” (a.k.a. “facts”, outside of your courtroom-centric domain):

        1. Software is an abstraction without structure.

        2. Adding software to a computer is nothing more than making a different set of data (including a sequenced list of operations, which is just more data) available for arithmetic and logical processing by the machine. The machine will do what it was designed to do: operate on the data, potentially yielding different data.

        3. Firmware is a subset of software, and hardware is the invention that processes data.

        “… if you cannot start from this baseline, one must wonder why.”

        Perhaps because one is a computer professional, and is more harmed than benefited by the expansion of patents into the simple abstract manipulation of data, especially so given the breadth and incomprehensibility of claims being approved by a PTO that is being increasingly forced into the unenviable position of reconciling your “facts” with my (and many others’) version of “reality”?

        Perhaps.

        1. (sigh) in pieces as something is getting caught in the filter…

          Dobu,

          declaring in advance the 3 hottest debate points to be off-limits in a proposed debate isn’t really being, to use one of your favorite phrases, “intellectually honest”, is it?

          First, I am not declaring these “off limits” as much as I am asking for facts to be recognized as facts.

          You will note that not one single anti-software patent advocate – not Malcolm, not Ned, not 6, not even Prof. Sichelman even bothers to address any of these points (they treat them as off-limits – but from a stick-your-head-in-the-sand manner.

          1. You will note that not one single anti-software patent advocate – not Malcolm, not Ned, not 6, not even Prof. Sichelman even bothers to address any of these points

            I’m not sure about Ted but the rest of us have explained our disagreements about these “baseline facts” to you pretty much endlessly for years.

            But being a path0l0gical liar, you pretend its not happening.

            What’s even worse, when it comes to acknowledging “baseline facts”, your dissembling is legendary. For crissake you can’t even bring yourself to acknowledge your own freaking beliefs most of the time.

            the fact that you appear to think of these things as “decisional” as opposed to factual shows that you do not grasp the fact that these are facts.

            The jokes write themselves. You need psychiatric help, Tr0llboy. That’s a fact.

            1. rest of us have explained our disagreements about these “baseline facts” to you pretty much endlessly for years.

              Define your use of the term “explain,” keeping in mind that vapid and empty ad hominem is not an explanation.

              And neither is running away – so your AOOTWMD of “ For crissake you can’t even bring yourself to acknowledge your own freaking beliefs most of the time” is pretty ridiculous, given as I am the one chasing you, Ned and 6 all the time.

          2. Anon, you know full well that your “facts” are in dispute.

            Your offer of a debate that only permits concessions regarding the most-disputed topics leaves nothing to debate. You are stacking the deck. In effect, “I will debate you, but only if you let me win before we start”.

            Again, I ask: Do you really think this is “intellectually honest”?

            Regarding your cite to other software patent opponents: Sorry, Anon. I’ve been lurking long enough to have witnessed many of their attempts to discuss these topics with you. I do not expect to accomplish what they couldn’t, but I could not bring myself to leave your alleged “facts” unchallenged.

            1. Again, I ask: Do you really think this is “intellectually honest”?

              anon believes he is the only “intellectually honest” person alive, except for the tiny handful of people who agree with everything he says.

              He goes apeshirt because he can’t get his opponents to agree that
              “software is structure” or “software is equivalent to hardware,” which somehow “proves” that he’s right and everyone else is wrong.

              Meanwhile, try asking him to show you an example of an eligible and enforceable claim reciting an old step and a new thought and he’ll skitter under his rock so fast you’d think he saw a mountain lion.

              You know he’s really scraping the bottom when he starts using a lot of bold and italics and using weirdo phrases that he dug from some moldy book in his grandpappy’s baseement (“elsewise”? LOL).

            2. Nonsense Dobu – you merely claim that such facts are open to debate.

              They are not. Facts are what they are. To be intellectually honest is to accept facts as they are.

              If you want to dispute a fact, then your chore is very great indeed. Have at it. “Challenge” is one thing – that you have not yet done.

            3. believes he is the only “intellectually honest” person alive, except for the tiny handful of people who agree with everything he says.

              You have attempted that spin before Malcolm.

              It did not work then either.

              These facts are a starting point – you have not yet showed up at the starting point.

              Still waiting for you Malcolm.

            4. “You know he’s really scraping the bottom when he starts using a lot of bold and italics and using weirdo phrases that he dug from some moldy book in his grandpappy’s baseement (“elsewise”? LOL).”

              They have some free classic novels etc. from back in the day on google play. I’m presuming that he’s probably been dipping into those.

        2. Second, the fact that you appear to think of these things as “decisional” as opposed to factual shows that you do not grasp the fact that these are facts. I do recognize that legal concepts are applied to various facts, but that does not change a fact into a non-fact – no matter how tightly one clenches their eyes.

          1. Anon, is there no room in your world view that someone who disagrees with you might actually be in the more correct position?

            If we’re taking court decisions out of the discussion, what makes your “facts” more valid than my “facts”? (And please don’t attempt the silly circular argument, “Because mine are facts, and yours aren’t.”)

            1. (sigh) again Dobu – it is not a matter of someone disagreeing with me.

              Feel free to disagree with me all you want.

              On the other hand, you are not free to disagree with facts.

              There is nothing circular by pointing out the fact that “software works.” You have shown absolutely nothing to your “fact” – what exactly is your “fact” that you think is indeed a “fact.” You are on the advancing tautologies of “abstract” with no definitions of what you mean.

            2. And there is the silly circular argument, and a straw man bonus argument, to boot.

              I posit no facts. The discussion was about disingenuous debate offers.

            3. I posit no facts.

              LOL – check again and the words you used.

              (it’s easy – the comments are captured in black and white. Do you need me to hold your hand and supply you your own comment numbers…?)

            4. Anon,

              You replied to my post, numbered 54.1.1.2.1, which consists of two simple (as yet unanswered) questions and one simple (ignored) request.

              No facts.

              (Stipulated: my version of facts were in evidence in an earlier post, prior to your splitting of the topics into sub-threads.)

            5. (Stipulated: my version of facts were in evidence in an earlier post, prior to your splitting of the topics into sub-threads.)

              Stipulation denied.

              Your first question of “room in my world view” was a bogus question, as you depended on an implication that was false: I addressed this in the fact that the facts I shared were not of my view – they are facts plain and simple. Thus, there is no possibility that someone who disagrees with plain and simple facts external to my view would be more correct.

              As to what makes “my facts” more valid than your “facts,” I also answered this – as immediately herein repeated – the facts are not “my” facts – they are just the plain facts.

            6. Your first question of “room in my world view” was a bogus question, as you depended on an implication that was false

              What was the false implication?

              I addressed this in the fact that the facts I shared were not of my view – they are facts plain and simple.

              Patent Jeebus speaks! Bow down and listen, everyone.

              As to what makes “my facts” more valid than your “facts,” I also answered this – as immediately herein repeated – the facts are not “my” facts – they are just the plain facts.

              Just stay bowed down, folks. It’ll be a lot easier for you and Patent Jeebus that way.

            7. MM,

              I think the “false implication” that is perturbing Anon is my initial post that implies that a reasonable person might not hold Anon’s “facts” as being, well, factual.

              That’s just based on what I’m reading between the lines, since Anon has chosen condescension in lieu of an answer. He seems to do that a lot.

            8. since Anon has chosen condescension in lieu of an answer. He seems to do that a lot.

              Dobu – you have fallen in with a crowd that likes to be wrong.

              LOL – in lieu of? not at all. I gave you the answer – more than once. It was just an answer that you did not like.

              The fact that you did not like the answer earned the condescension. The further fact that you aligned with the “legal might” of 6 just cemented that condescension as being well earned.

            9. My goodness, you’re ready to pounce on anything you can, aren’t you?

              I agree that your replies to me have made your stance on “facts” quite clear. My reply was intended to be more localized. Specifically, your reply to MM in 54.1.1.2.1.7 was nothing but condescension.

              Aligned with 6? You keep bringing up 6 in your responses to me. The total discourse between 6 and myself consists of me giving one of his posts a textual thumbs-up. That’s it. I apologize if I’ve made you jealous. There’s nothing between us, honestly.

            10. No reason to feign and project feelings that I have not actually displayed (there is no way for you to realistically assume any affection from me to 6, and thus to have a reason for me to be jealous).

              As to “ready to pounce,” I merely responded to your additional wayward post – specifically the “in lieu of.”

              If this type of thing bothers you, I suggest you be more careful in what you post. You seem to want to throw stones from that glass balcony of yours, but do not seem to eager for me to lob the stones back up to you.

              Your choice – just be ready to reap what you sow.

          2. You seem to want to throw stones from that glass balcony of yours, but do not seem to eager for me to lob the stones back up to you.

            Um, that’s not really a balcony. And those aren’t stones.

            Let us know when you’re ready for your “towel.”

        3. Third, you err (badly) in attempting to spin the facts as some type of my courtroom-centric view. I know and understand both the legal and technical worlds – and the facts are facts (not because I say so) but because they are so – explicitly in a non-courtroom centric view.

          1. explicitly in a non-courtroom centric view

            Impressive. Professor Kookoo McPatentbutter appears to be carving some new canals into the surface of planet Whacko.

            1. another empty Malcolm post.

              I’m just making fun of your self-serving m0r0nic attempts to “argue” your point, Tr0llb0y.

              We all know that there is no talking “substance” with you when it comes to computer-implemented junk and functional claiming. That’s why we all know that you have nothing but disappointment ahead of you. In the long run, we win and you lose because we have (1) decent arguments and (2) decent lawyers and (3) massive public support. All you have, ultimately, is “Please, please, please don’t spank me too hard” and some Texas cowboys who think everybody should learn to be afraid of infringing patents whenever you use a computer because … freedum!!!

            2. I’m just making fun

              LOL – it’s not working for you.

              Open your eyes, pull your head out of the sand, and try to ground yourself with some law or fact.

        4. Methinks that you have imbibed in the Fear Uncertainty and Doubt of “one is a computer professional, and is more harmed than benefited by the expansion of patents into the simple abstract manipulation of data.”

          A machine does not think: anthropomorphication.

          1. I have an excellent grasp of how computers work. I won’t bore you with my credentials. (I’ll let my software freedom posts bore you, instead.)

            At the risk of getting an “Accuse Others ….” response, amusingly, my perspective is that the people patenting software are the ones who are anthropomorphizing. A computer does not “know” if it’s processing temperature data, image data, accounting data, etc.. It’s all just data operating on data. The interpretation is being done by the humans.

            1. Dobu my perspective is that the people patenting software are the ones who are anthropomorphizing.

              Mine, too.

              A computer does not “know” if it’s processing temperature data, image data, accounting data, etc.. It’s all just data operating on data. The interpretation is being done by the humans.

              This has already been pointed out to Tr0llb0y a trillion times (his path0l0gical lie about “running away” notwithstanding).

              The “anthroporphizing” shows up in the functional language in the claims, where the old machine is newly “configured” to perform information processing steps that are described in generic terms: receiving, determining, storing, processing, communicating, etc.

              Just ask Tr0llb0y to define “think” and then perhaps we can all agree as to whether computers “think”, or whether Tr0llboy is just arguing with some silly strawman.

            2. Nobu A computer does not “know” if it’s processing temperature data, image data, accounting data, etc.. It’s all just data operating on data.

              And this gets right to the heart of Tr0llb0y’s bogus “argument” that “software is structure.”

              Whats the structure of “price”? What’s the structure of “temperature”? What’s the structure of “Grandma’s favorite DVD releases”?

              His response to those obvious, direct questions will be to move the goalpost completely and pretend that he doesn’t have to answer the question. He’ll just start babbling on about “the actual law” about functional claiming, or his silly “Monte Hall experiment.”

            3. Dobu that is a very misleading assertion. You are correct that computers do not “know” because they are not brains.

              But, computers can behave differently depending on the type of data. So, what you get into is an explanation of what “know” means and then map that to what the computer doing. Really, you statement is the type of statement that appears to me to be either motivated by ignorance or an intent to blow smoke.

            4. It’s all just data operating on data. The interpretation is being done by the humans.

              LOL – that’s nice. Do you realize that Perry put it on the record that such is enough to satisfy patent eligibility?

            5. NWPA,

              I’m sorry, but you are absolutely incorrect in your assertion that computers operate differently on different types of data (unless you want to get into data types as a computer term, but I don’t believe that’s the angle from which you’re approaching).

              Data in, data out. Meaning is assigned by the people using the computer. Nothing mysterious or smokey going on there.

            6. his silly “Monte Hall experiment.”

              LOL – the fact that you were afraid to take the thought experiment offered by the Grand Hall experiment has been supplemented by your fear of talking about the Nazomi case.

              Just ask Tr0llb0y to define “think” and then perhaps we can all agree as to whether computers “think”

              Y.
              A.
              W.
              N.

              Been there – done that. (the strawman is all yours Malcolm – just like always when you attempt to move the goalposts in discussions from claim elements or parts of a claim “in the mind” to claims purely and totally “in the mind.”

              Yet another AOOTWMD shows just how vapid your position is.

            7. Data in, data out. Meaning is assigned by the people using the computer. Nothing mysterious or smokey going on there.

              LOL – so you ascribe to the 6 Britney Spears is the same as a Microsoft Operating Disc theory….

              /facepalm (so much for your “excellent grasp”)

            8. Dobu,

              Maybe you want to next visit my magic box full of electrons, protons and neutrons – since you seem to want to think that “it’s all in there” and since the items themselves are all “in there” and the mechanism for combining any electron, proton and neutron is “in there,” then all combinations are de facto “in there.”

              Can you grasp the similarity that must play forth with how you want your “facts” to be…?

            9. Anon – “Do you realize that Perry put it on the record that such is enough to satisfy patent eligibility?”

              No, I do not so realize.

              Anon – “LOL – so you ascribe to the 6 Britney Spears is the same as a Microsoft Operating Disc theory….”

              I don’t know. I think I would likely choose the Britney disc (assuming it’s a video I can mute), so they certainly differ in content. I don’t think you have a new computer when the discs are swapped. Is that the same as 6′s theory?

              Anon – “so much for your ‘excellent grasp’”.

              Ah, yes. The ad-hominem ridicule towards anyone who disagrees. Quite expected.

              Anon – “… visit my magic box …”

              Sounds like something along the lines of a 3D printer. Of course there are still new inventions to be discovered that will (eventually?) be 3D-printable. The invention of the 3D printer (or your “magic box”) would not occlude such future inventiveness.

              Software, being just various collections of data, would be another story. You can invent a device that includes software, but there are no pure software inventions. Someone might discover a better sorting algorithm, or data compression techniques, but that’s just abstract mathematical discoveries.

              (Which you have seen in many, many other posts before mine.)

            10. Sounds like something along the lines of a 3D printer. Of course there are still new inventions to be discovered that will (eventually?) be 3D-printable. The invention of the 3D printer (or your “magic box”) would not occlude such future inventiveness.

              LOL – you want to delve into that a little bit deeper? (don’t forget to stay consistent with your ‘logic’)

            11. >>I’m sorry, but you are absolutely incorrect

              People may interpret the data that is true. That does not mean that the computer is not processing the data nor does it mean that the computer may not be programmed to behave differently depending on the type of data it is processing.

              You know, what you are doing is playing a word game. You need answer what it means to “know” what the data is. I think your perspective comes from not deconstructing human intelligence.

            12. but that’s just abstract mathematical discoveries.

              LOL – can you obtain a copyright on math?

              (and let’s keep the goalposts from being moved as the question is not to a math book)

            13. Dobu:

              “The interpretatoin is done by humans.” It can be. That isn’t always the case. A computer that drives. A machine that detects tumors. And, the biggest problem you have is what does it mean to say “interpretation”? That is saying the human brain is going to make some sense of it. Well, guess what, a computer can do the same thing.

              I hate to break the news to you, but your views are about from the 1920′s. Modern cognitive scientist will not be on your side nor modern artificial intelligence researchers. Maybe you can find a few bizzarro ones, but your views are just primitive.

            14. NWPA “The interpretation is done by humans.” It can be. That isn’t always the case. A computer that drives. A machine that detects tumors.

              Does the computer know that it’s driving? Does the machine know that it’s detecting a tumor? Nope. The computer doesn’t know or care if the data it receives corresponds to a mass of cancerous cells or a tin can floating in the ocean. The computer is just an information processing machine processing information (data), as that machine was instructed to do by a person trained in the art of instructing computers.

              Our broken system of patent law doesn’t respect that art. Instead, it respects the art of lawyers who, in exchange for a mere description of an information processing function, wish to control where, when and how skilled programmers teach specific computers to correctly, accurately and reliably perform information processing functions.

            15. Night, But, computers can behave differently depending on the type of data.

              “Behave?” Is equivalent to “do.” You are again agreeing implicitly that a program computer to be eligible has to be connected to inputs and outputs so that it does something differently depending on the programming. I do not know how many times I have pointed this out to you, and you formally disagree, but then come back and say things like “computers can behave differently depending on the type of data.”

              You cannot seem to understand that when you make this argument you implicitly require a computer to be connected into the real world such that it can do something. That places it in context, since it is acting on something, for example a signal originating from some source, and produces an output signal that has utility.

              If you would limit your eligibility arguments to this we would be in agreement. But you, like Kappos, take this basic premise and then extend the principle to argue the patentability of a computer processing data without any requirement of connection into the real world so that the computer would actually do something different. Then you lapse into absurdities such as processing information is eligible per se because such processing reduces entropy, or some such. The physical utility of a reduction of entropy is no more a patentable utility than the use of anything that has specific gravity greater than water is useful as a boat anchor.

              Finally, after all these absurdities are marshalled as serious arguments, if your target does not agree, he is then attacked personally as someone with an agenda or the like.

            16. Ned,

              Once again you are dodging what I present to you with your “has to be connected”

              A manufacture (and machine component) is a patent eligible category of its own right.

              You need to recognize the context of the claims – being read by persons of ordinary skill in the art to which the invention pertains. You keep on trying to not do this in accordance with law.

            17. Goodness, this is getting long. I’m about to bail on your guys if we don’t get another thread started.

              Off we go . . .

              Anon – “LOL – you want to delve into that a little bit deeper? (don’t forget to stay consistent with your ‘logic’)”

              Getting lots of laughs from you. You must be having a nice day. :^)

              Delving deeper? To put it more plainly, the box-o’-particles does not anticipate future inventions made of particles. The box-o’-data-processing-steps will perform its designed operations on whatever data you feed into it, no invention going on there.

              NWPA – “… programmed to behave differently depending on the type of data it is processing.”

              I think the issue we’re having is that we disagree on what a program is. A computer program is data consisting of operations to performed on other data, the locations of that other data, and sometimes the actual data to be operated upon (immediate addressing mode, for anyone that cares). If you feed it different operations lists or subject data, you will likely see different results. I don’t really consider that to be “behaving differently”; it’s still processing data, just like it was designed to do.

              NWPA – “You know, what you are doing is playing a word game. You need answer what it means to ‘know’ what the data is. I think your perspective comes from not deconstructing human intelligence.”

              I’m really not trying to play word games. I will concede that human knowledge can be replicated (to some extent) in computer software. But to say that the computer “behaves” differently because of the way it “interprets” data . . . unless you branching off into neural networks, artifical intelligence, and the like, I’m sticking to “it’s just data.”

              Anon – “LOL – can you obtain a copyright on math?”

              I would say, generally, no. I also don’t think it would be considered “moving the goalposts” to throw in that you can’t copyright quicksort or MP3 data compression. I wouldn’t consider them patentable, either, but I’ve already lost that fight. Let’s hope that gets fixed sometime.

              NWPA -

              “A computer that drives.”
              Patent your self-driving car.

              “A machine that detects tumors.”
              Patent your tumor-detection machine. Be sure to include the optics, A-to-D, and your software in your computer-assisted invention.

              “… your views are just primitive.”

              Noted.

            18. Delving deeper? To put it more plainly, the box-o’-particles does not anticipate future inventions made of particles. The box-o’-data-processing-steps will perform its designed operations on whatever data you feed into it, no invention going on there.

              LOL – you too are missing the critical notion of exactly what is the exceptions to the judicial doctrine of printed matter.

              You also seem to want to turn a blind eye to the analogy – mouthing without recognizing what you are saying.

              Slow down. Take a deep breadth. Work through the analogy step by step.

              (box-o’-data-processing-steps will not anticipate future processing steps… – you jump to claiming “no invention” when invention be there.)

              as to data on other data – you are being pedantically tautological. Again – you miss the critical notion (functionally related).

              I have already lost that fight” Maybe you should stop fighting and think about why you are fighting and why you have lost (hint: you have lost this fight as well). You might want to be able to realize why before doing the same thing again.

            19. anon, we all agree that a new or improved machine is eligible. That is why the concession of Perry is telling. He cannot win except on useful Arts grounds, and that grounds is not available per Bilski.

              But I do not concede that, without more, a programmed computer is a new or improved machine. I do agree, however, that a programmed computer is not abstract as pointed out time an again by many, including Steven in Bilksi, and Moore in Allice v. CLS Bank.

            20. Anon – “LOL – you too are missing the critical notion of exactly what is the exceptions to the judicial doctrine of printed matter.”

              You laugh a lot. Glad I could brighten your day. I see you referencing that doctrine frequently, without detailing what it is or how it applies to the discussion. Care to share your wisdom?

              Anon – “You also seem to want to turn a blind eye to the analogy – mouthing without recognizing what you are saying.”

              I see the analogy you’re trying to draw. You are analogizing arranging particulate matter with arranging data and operations to provide to a computer.

              I am saying that it is not a valid analogy. The ouput of your magic box is (potentially) an actual new machine that has not yet been invented. The only thing you are going to create by feeding data and operations to an old computer is just the same old computer, but with different data. Waving your hands and saying “but my interpretation of THIS data is [fill in the blank]” does not make the data an invention.

            21. Ned we all agree that a new or improved machine is eligible.

              It’s the subject matter protected by the claims that determines eligibility, not the applicant’s (or the defendant’s) characterization of the subject matter as a new “machine” or a new “process.”

              Prometheus claimed a “process.” I don’t recall any dispute about that. Nevertheless: ineligible junk.

              I could claim “A new machine, wherein said machine has the information [insert non-obvious useful information] printed on it.” Everyone can agree that my machine is new and improved. That doesn’t make the claim eligible for patenting.

            22. printed on it.

              How Fn banal.

              Ned, how do you like Malcolm ignoring the exceptions to the judicial doctrine of written matter with such a frivolous post?

            23. Dobu:

              What you are doing is abstracting something away. Can’t you say the same thing about chemical processes? About anything really. Sure it is processed data. But what about your brain how is that any different? And, you could say that molecules are just processed atoms. Odd that some people try to put out this argument. What I find odd too about your argument is the way you seem to be saying that people make sense of it as if we are inherently superior to the computer. I don’t think that is true. The computer is destined to overtake our intelligence.

              Ned: tell us more about your idea that software is eligible if you put it on a ROM. That was a prototypical square wheel argument.

            24. “printed on it.”

              How Fn banal.

              Indeed. But banality is all that is needed to show that Ned’s silly sweeping statement is plain wrong.

              The Supreme Court has never approved of this “printed matter doctrine”, but in a recent 9-0 decision they pretty much flushed down the toilet the Fed Cir’s habit of pushing eligibility concerns into 103 (where those concerns are then routinely ignored).

            25. Missed Dobu’s response yesterday.

              Dobu, I do reference the exceptions to the judicial doctrine of printed matter quite a bit, and no, I will not teach that doctrine (and the critical exceptions) to you. The doctrine (and the critical exceptions) have been explored in great detail, and I just will not hold your hand through the garden walk of every turn through this discussion. You will need to do your own homework at times.

              If you want to join in a discussion on the merits, I suggest that you do that homework and know the terrain. (hint: you mentioned losing battles before – your lack of preparation and shallow understanding just might be the reason why you keep losing).

              Speaking of shallow understanding, you again want to ignore the lesson of the analogy (sorry, but the analogy IS valid – again this follows your tactic of not seeing things that you merely don’t like) by retreating to a rather vapid “program is just data” view. Sorry, but that simplistic semantic is simply wrong. You seek a pedantic use of the word, much similar to the lemming “Software is Maths” mantra that one finds riddling places like Slashdot and Techdirt. Yet again you want to say “same old computer” and that is simply not the way it is. You are using the much disabused “House” notion – the notion that the person who invented the very first computer also (inherently) invented all improvements to that machine. This also follows the “Morse” case law analogy – you do not have (and cannot have) such “all improvements no matter what they may be” type of thinking. Further you have ignored the point that not all “use” is of the same type of “use.” You want to be able to say that changing the machine (yes the machine was built to be changed – but it nonetheless is changes under discussion) is merely “using” the machine. But those changes – akin to the changes of the electrons, protons and neutrons (also ‘uses,’ by the way) – are invention. You continue to say “no invention” without understanding what you are saying.

              To borrow Malcolm’s language, you want ‘oldbox’ AND new capabilities without explaining how those new capabilities came into being without a change to ‘oldbox.’ You ignore the reality of inherency and the plain fact that ‘oldbox’ – while built to be changed – does not inherently have – without change – those other capabilities. It is not I that is standing here “waiving one’s hand” and expecting magic of change happening to ‘oldbox’ and previously absent capability magically appearing in ‘oldbox’ when those capabilities were not present – inherently or otherwise – prior to a change.

              Open your eyes son. Stop drinking the kool-aid. Look ahead to the top of that cliff you are marching towards and ask yourself, “Where are all those previous lemmings going to?”

            26. NWPA: “What you are doing is abstracting something away. Can’t you say the same thing about chemical processes? About anything really.”

              Well, yes, that’s kind of the entire issue. Once you’re removed from the level of data processing by a machine, any meaning assigned to the resulting data exists entirely in the human mind. The chemical processes yield actual real-world concrete materials.

              “Sure it is processed data. But what about your brain how is that any different?”

              The human brain manipulates data at higher levels of abstraction and meaning. The computer operates on data at the lowest levels, limited by the computer’s design.

              “And, you could say that molecules are just processed atoms.”

              Again, abstract meaning vs. concrete materials.

              “Odd that some people try to put out this argument. What I find odd too about your argument is the way you seem to be saying that people make sense of it as if we are inherently superior to the computer. I don’t think that is true.”

              Given today’s technology, I mostly disagree with you. There are certainly circumstances where a computer is needed to accomplish a goal within a limit of time or accuracy (e.g., anit-lock brakes, global climate trends), but outside of such performance issues, the human brain can do anything computers can (I realize I may come to regret that generalization), and much more.

              Computers do exactly as they are instructed. That is their greatest utility, and limitation. Meaning and creativity are beyond their grasp. A programmer can assign their own meaning to data results, and write code to look for patterns matching such results, and branch to different data processing channels if such a match occurs, but this does not “teach” (if I may be permitted to anthropomorphize momentarily) meaning to the computer.

              I would also suggest that this line of debate may be playing into the hands of those you call “anti’s”. Software patents are already granting monopolies on information that anyone could generate; following your lead here leads us to monopolies on thoughts. I’m hoping nobody will ask why that would be a “bad thing”.

              “The computer is destined to overtake our intelligence.”

              If your writings are comtemplating the approaching “singularity”, I’m not expecting to still be around when/if that happens. If computers become creative, able to spontaneously generate their own programming beyond the rote sequential processing provided by humans, I couldn’t begin to guess what kind of patent regime would serve the needs of the resulting society. Maybe the computers will write their own patent applications.

              Seriously off-topic. But an interesting discussion.

            27. following your lead here leads us to monopolies on thoughts.

              Seriously wrong. And yet you refuse to listen as we tell you so. Take those fingers out of your ears, open yours eyes, stop marching.

            28. Again, abstract meaning vs. concrete materials.

              Your shallow thinking is again on display.

              Let’s move from chemical to another physical example.

              Let’s use “Table”

              Clearly we can understand the “non-abstractness,” right?

              Now you draw a table. I will also draw a table. What are the chances that your table will match my table?

              Why is that?

              Another homework assignment for you: learn about the ladders of abstraction.

              If you want to play here, you need to understand the ground rules.

            29. Anon: “I will not teach that doctrine (and the critical exceptions) to you.”

              Not even a cite? Okay, I guess it wasn’t that important. The doctrine is off-topic, then.

              “… you again want to ignore the lesson of the analogy (sorry, but the analogy IS valid)”

              The analogy is invalid.

              “Sorry, but that simplistic semantic is simply wrong.”

              The semantic is correct.

              “Yet again you want to say “same old computer” and that is simply not the way it is.”

              It is still the same old computer.

              “You are using the much disabused ‘House’ notion – the notion that the person who invented the very first computer also (inherently) invented all improvements to that machine.”

              I doubt that’s Dr. House’s exact words. Computers are being improved all the time. Better integrated circuit fabrication processes, higher clock speeds, more advanced semiconductor materials, etc.. Lots of improvements.

              “This also follows the ‘Morse’ case law analogy – you do not have (and cannot have) such ‘all improvements no matter what they may be’ type of thinking.”

              As you know, I’m weak on the legal points, but I think Morse was trying to lay claim to pretty much all uses of electromagnetism … am I close? If so, then I’ll play the “abstract data vs. concrete materials” card.

              “Further you have ignored the point that not all ‘use’ is of the same type of ‘use.’”

              I have not seen that point raised, to be ignored.

              “You want to be able to say that changing the machine … is merely ‘using’ the machine. But those changes – … – are invention. You continue to say ‘no invention’ without understanding what you are saying.”

              I am saying you are not fundamentally “changing” the machine by putting software on it, any more than you are “changing” a DVD player by putting a disc in it. (And just to keep this in the “utility” playground, let’s say the disc is a utility for aligning video display devices [e.g., test patterns], instead of some artistic performance.)

              “To borrow Malcolm’s language, you want ‘oldbox’ AND new capabilities without explaining how those new capabilities came into being without a change to ‘oldbox.’”

              I disagree with your assessment that the old machine is gaining new capabilities. It always had the capability of processing whatever data and operations you choose to feed it.

              “You ignore the reality ….”

              Pot, meet kettle.

            30. Not even a cite? Okay, I guess it wasn’t that important. The doctrine is off-topic, then.

              Wrong. I have provided this stuff in the past and you can do your own homework – it is important and it is specifically on-topic. Your rather vapid attempt to simply say otherwise is pretty pathetic.

              The analogy is invalid.

              Wrong again.

              The semantic is correct.

              Wrong again.

              It is still the same old computer.

              Wrong again.

              I doubt that’s Dr. House’s exact words.

              LOL – exact words? Please don’t be pedantic – I said ‘notion,’ not exact words.

              As you know, I’m weak on the legal points, but I think Morse was trying to lay claim to pretty much all uses of electromagnetism … am I close? If so, then I’ll play the “abstract data vs. concrete materials” card.

              Your card is misplayed. Again.

              I have not seen that point raised, to be ignored.

              LOL – open your eyes.

              I am saying you are not fundamentally “changing” the machine by putting software on it, any more than you are “changing” a DVD player by putting a disc in it.

              Wrong and wrong again – and stepping into another puddle of your ignorance and the fact that you are muddling Useful Arts and non-useful arts.

              (And just to keep this in the “utility” playground, let’s say the disc is a utility for aligning video display devices [e.g., test patterns], instead of some artistic performance.)

              Such utility is patent eligible – thus by keeping this in the proper playground, your DVD disc example misses the mark – see also the (yes, it is important, and no you still need to do your own homework) exceptions to the judicial doctrine of printed matter and the notion of the functional relationship. As I pointed out to Ned and his attempt with bullets and a gun, your analogy misses at a critical point.

              I disagree with your assessment that the old machine is gaining new capabilities.

              It is not my assessment. It is a fact beyond my assessment. Thus your disagreement is completely meaningless and a non sequtiur to our discussion. Open your eyes.

              It always had the capability of

              You miss the critical distinction between “capability of” and “ changed to have that present capability.” This is why the analogy of my big box of electrons, protons, and neutrons wrecks your view. My big box has that very same “capability of.”

              “You ignore the reality ….” – Pot, meet kettle.

              Not at all – for the reasons and facts already given – whether you understand these reasons and facts or not does not change the validity of the reasons, nor change the facts from not being facts.

              Sorry, you lose (again).

            31. Anon: “Your shallow thinking is again on display.”

              I gotta be me.

              “Let’s move from chemical to another physical example. Let’s use ‘Table’. Clearly we can understand the ‘non-abstractness,’ right? Now you draw a table. I will also draw a table. What are the chances that your table will match my table?”

              I’m not getting your point, but I’ll play along.

              Insufficient data to provide a meaningful probability. Are we going to play word games with “table” (e.g., Periodic Table of the elements)? Must they have the exact same dimensions and ratios to match (p -> 0.0)? Would the more general characterics that define “table” (flat top supported by leg[s]) be enough to count for a match? Are we trying to draw tables that match? (p depends on how closely we can guess the other’s proclivities. I.e., unknown.) Are we trying to draw tables that don’t match? (p[match] -> 0.0)

              “Why is that?”

              You have apparently assumed a high probability of matching, or a low probability. I honestly do not know which. I think this answer will work either way: the word “table” is not a table, it is an abstraction humans use to communicate information about tables. Have I played into your trap?

              “Another homework assignment for you: learn about the ladders of abstraction.”

              Is that what firemen use to get kittens out of trees?
              :^)
              “Ceci n’est pas une pipe.” — René Magritte

              “If you want to play here, you need to understand the ground rules.”

              Meh. Rules change.

            32. Anon: “it is important and it is specifically on-topic.”

              Not important enough for a cite? Off-topic.

              “Wrong again. …
              Wrong again. …
              Wrong again. …”

              Is not, are too.

              “‘I doubt that’s Dr. House’s exact words.’ LOL – exact words? Please don’t be pedantic – I said ‘notion,’ not exact words.”

              I am not being pedantic. You substituted the word “improvement” for the term Dr. House used to denote software, which changes the meaning significantly.

              “Your card is misplayed. Again.”
              “LOL – open your eyes.”
              “Wrong and wrong again”

              Is not, are too.

              ” – and stepping into another puddle of your ignorance and the fact that you are muddling Useful Arts and non-useful arts.”

              Which is why I provided a non-patentable disc of test patterns, to avoid your non-useful arts dodge (which you quite determinedly took, anyway. Oh, well. I tried.).

              “Such utility is patent eligible – thus by keeping this in the proper playground, your DVD disc example misses the mark …”

              Would I be putting words in your mouth to suggest that you are saying DVD player + utility images on DVD = new machine?

              ” – see also the (yes, it is important, and no you still need to do your own homework) exceptions to the judicial doctrine of printed matter and the notion of the functional relationship.”

              No cite? Off-topic.

              “It is not my assessment. It is a fact beyond my assessment. Thus your disagreement is completely meaningless and a non sequtiur to our discussion.”

              It is your opinion, shared by some misguided and/or gullible justices whose findings are, hopefully, soon to be corrected.

              “You miss the critical distinction between ‘capability of’ and ‘ changed to have that present capability.’”

              You miss that swapping out the data is not a fundamental change to the machine.

              “This is why the analogy of my big box of electrons, protons, and neutrons wrecks your view. My big box has that very same ‘capability of.’”

              The analogy is still invalid. Your box is creating new machines (et al). The only thing you are going to create by feeding data and operations to an old computer is just the same old computer, but with different data.

              “… whether you understand these reasons and facts or not does not change the validity of the reasons, nor change the facts from not being facts.”

              You again conflate your opinions with facts. Calling them “facts” does not make them factual.

              “Sorry, you lose (again).”

              Noted. We need to see if the good Professor could allow automatic signatures for posters. I think putting this line in yours would save you a lot of typing.

            33. I gotta be me.

              Um, ok – you might not want to expect to win then. But if you are ok with that, then there you go.

              Insufficient data to provide a meaningful probability.

              LOL – imagine that. I thought that ‘data’ was sufficient for you to hang your hat on.

              Would the more general characterics that define “table” (flat top supported by leg[s]) be enough to count for a match?

              What do you think? Are you starting to use that thinking capability you have, or are you still going to be ‘you?’

              You have apparently assumed a high probability of matching, or a low probability.

              LOL – imagine that. I thought that ‘data’ was sufficient for you to hang your hat on.

              the word “table” is not a table, it is an abstraction humans use to communicate information about tables. Have I played into your trap?

              Now tell me about any (and all) words in a patent application – tell me, do you think that you have “played into my trap?”

              Re: Magritte.

              Pay attention – I have often used the phrase “the map is not the land” A conversation going down that path will also lead you to losing (in English, French, or any other language).

              Meh. Rules change.

              Um, sure – go with that. But when you want to play a game and not even bother with the rules, you really should not be surprised that you continue to lose. But you just gotta be you, even if that you is a chronic loser on these things, right? I’m cool with that.

            34. Not important enough for a cite? Off-topic.

              You use this word “Off-topic” I think that you do not understand what this word means. (if you demand citations, do you realize how much more off-topic you will be…?)

              “‘I doubt that’s Dr. House’s exact words.’ LOL – exact words? Please don’t be pedantic – I said ‘notion,’ not exact words.”

              I am not being pedantic. You substituted the word “improvement” for the term Dr. House used to denote software, which changes the meaning significantly.

              But not according to you: unless of course, you acknowledge that I am correct, n’est-ce pas?

              Is not, are too.

              Keep marching up that hill – no one can make you stop.

              Which is why I provided a non-patentable disc of test patterns, to avoid your non-useful arts dodge (which you quite determinedly took, anyway. Oh, well. I tried.).

              LOL – your ‘try’ rather backfired on you – and I had no ‘dodge.’ Double fail for you. But hey, you gotta be you, right?

              It is your opinion, shared by some misguided and/or gullible justices whose findings are, hopefully, soon to be corrected.

              LOL – sorry, but certain facts are really facts – these facts are not “my opinion.” You may want to think so, but thinking so just does not make it so.

              You miss that swapping out the data is not a fundamental change to the machine.

              Tautological – you are defining “not a fundamental change” to include fundamental changes. You might want to rethink that.

              The analogy is still invalid.

              Nope. The analogy is spot on – you need to deal with the logic (and clenching tight your eyes is not a real good way of dealing with it – but again, you have this penchant for ‘being you – no matter how wrong that is….)

              You again conflate your opinions with facts. Calling them “facts” does not make them factual.

              Nope. As explained, they are facts. It is you that is attempting to make some sort of conflation here.

              Noted. We need to see if the good Professor could allow automatic signatures for posters. I think putting this line in yours would save you a lot of typing.

              I can think of one for you too ;-)

            35. Re: 54.1.1.4.1.34, by Anon
              Nothing but derision and condescension. You didn’t give me anything material to respond to.

              Re: 54.1.1.4.1.35

              Anon: “But not according to you: unless of course, you acknowledge that I am correct, n’est-ce pas?”

              But yes according to me. I’ve maintained all along that swapping software does not make a new improved machine.

              “You may want to think so, but thinking so just does not make it so.”

              Double-edged sword. Again. Calling your belief a “fact” doesn’t make it factual.

              “you are defining “not a fundamental change” to include fundamental changes.”

              Swapping out the software is not a fundamental change to the old computer.

              “The analogy is spot on…”

              The analogy is invalid.

              “… they are facts.”

              They are your opinions.

              Kindest regards,
              Dobu

              Opinions are not facts.”

            36. Let’s see if we arrive at the right sub-thread this time . . .

              Anon:

              These are your examples of incontrovertible facts?

              Try midnight. Try north Texas in July. Try Toronto in January.

              Not so much blue sky, green grass, or wet water to be found there.

              And I guess I’ll need to point to that double-edged sword again.

              Kindest Regards,
              Dobu

              Opinions are not [necessarily] facts.

          2. Tr0llb0y: Maybe you want to next visit my magic box full of electrons, protons and neutrons – since you seem to want to think that “it’s all in there” and since the items themselves are all “in there” and the mechanism for combining any electron, proton and neutron is “in there,” then all combinations are de facto “in there.” Can you grasp the similarity that must play forth with how you want your “facts” to be…?

            The best part of Tr0llb0y’s relentless nutsanity and strawman-molesting is that he really believes he’s “winning.”

            Of course, when these “arguments” blow up in his face in court (to the extent anyone is desperate enough to make them in the first place — thankfully most state bar’s offer all kinds of mental health services), then he and his buddies just pump up the ol’ smear machine — “It’s all those meddling academics without reg numbers!!!” “Lemley is paid by someone!” “Communists hate patents!” “Colleen Chien is an alien from another planet!” etc etc etc

            It’s super funny and kinda sad at the same time. Amazing that these folks keep right at it, after all these years, when it’s perfectly clear that a lot of people are closely monitoring their endless failures, their transparent self-serving “arguments”, and desperate attempts to avoid engaging with reality at all costs.

          3. These are your examples of incontrovertible facts?

            Try midnight. Try north Texas in July. Try Toronto in January.

            Not so much blue sky, green grass, or wet water to be found there.

            And I guess I’ll need to point to that double-edged sword again.

            Kindest Regards,
            Dobu

            Opinions are not [necessarily] facts.

        5. Software is structure – it must, elsewise it would not work. You merely dabble in semantics and lose your way when you attempt to label it a mere abstraction.

          Adding software to a computer enacts change. It must, elsewise the very first computer would inherently have all future inventions contained therein – even inventions that have not yet been contemplated. Such an oxym0r0n cannot be squared with reality. The fact that a computer is built to be changed does not change the fact that real change occurs.

          The equivalency of software, firmware and hardware is likewise a fact. This is not up for debate, because it is what it is. You may want to debate this, but it is simply not a matter of debate. Sorry that you may feel otherwise, but your feelings just don’t change reality.

          And that my friend is pure honesty – intellectual and every other way.

          1. Software is structure – it must, elsewise it would not work.

            “Meditation is structure – it must, elsewise it would not work.”

            Really deep, compelling stuff.

            1. Tell me again Malcolm of the exceptions to the judicial doctrine of written matter

              Wheeeeeeee!!!!!!!

              Round and round Tr0llb0y spins!!!

              Maybe next he’ll accuse me of being a racist or a communist.

          2. Anon,

            Software as applied to a general purpose computer is just data. It’s the hardware that does the work.

            Invention . . . now it’s getting meaty.

            Software was invented when the computer was invented. If you want to invent new software, you need to invent a new computer that enacts innovative software concepts that are not available on current general purpose computers. If you’re loading new software into an old computer, you’re using the machine as designed.

            You do realize that “your feelings just don’t change reality” is a double-edged blade, right?

            1. double-edged blade, right?

              LOL – as I have pointed out to you – my feelings are not attached to the facts I have presented.

              That’s a rather huge and important difference.

            2. you’re using the machine as designed.

              No. You are not. See the Grand Hall experiment. See Nazomi.

              You cannot define “use” as including “invention” and then turn around in a tautology and say that that type of invention is not really invention, it is just use.

              That’s exactly like trying to say that combining electrons, protons and neutrons is just “use” and no invention can come from such use.

              Sorry – you lose.

            3. It’s the hardware that does the work.

              Simply wrong – it is not just the hardware that does the work – sorry Dobu, you just are not playing with all the cards in the deck.

            4. Anon – “Do you think you can obtain a copyright on ‘just data?’”

              I wouldn’t expect so. Some people seem to manage it.

              Anon – “all of it? even software that has not yet been invented?”

              Yes, all of it. The next software inventions will arrive with the next computer hardware inventions.

              Anon – “Um, what exactly do software companies pay their programmers for then…?”

              To generate the operational data that will allow the computer to generate the desired resulting data. That’s what I’m getting paid for these days, anyway. (Used to be more on the hardware side.)

              Anon – “LOL – as I have pointed out to you – my feelings are not attached to the facts I have presented.”

              Considering the voluminous and venemous responses, I’m not sure I’m finding that assertion to be entirely credible.

              Anon – “See the Grand Hall experiment.”

              Both computers have the capabilities with which they were designed: operate on the data presented to them. You put venison in one meat grinder, and nothing in another meat grinder, and turn both cranks. Different results, but not a new machine.

              Anon – “see Nazomi”

              Not familiar with it.

              Anon – “You cannot define ‘use’ as including ‘invention’ and then turn around in a tautology and say that that type of invention is not really invention, it is just use.”

              I don’t believe I do. I dispute your application of the word “invention” to a collection of data for a computer to process.

              Anon – “Sorry – you lose.”

              I guess I’m just too ignorant to know when I’ve been defeated, then.
              :^)

            5. I guess I’m just too ignorant to know when I’ve been defeated, then.

              Oh, you weren’t merely “defeated”, Dobu. You were totally devastated by Tr0llb0y, at least in his own mind. And now you’re going to “run away” because you can’t accept the incontrovertible fact that “software is structure.” Next time just bow down before Patent Jeebus and you’ll save yourself tons of time.

              Also, please be sure to check again to see if you actually do program computers or know anything about them. Even if you think you do that for a living, you probably do not. Why is that so? Because the “fact” is that only people who are ignorant of computer technology would ever say the things you say! More likely you are just a baker or a stone cutter who has never programmed a computer before.

              We hope you enjoyed this lesson in “intellectual honesty”, brought to you once again by the patent teabaggers.

            6. Thanks for the response, Anon.

              However, I would be less reluctant to accept your discourse on what “winning” isn’t, if only you didn’t have so much trouble with the word “facts”.

              Maybe it’s just me.

            7. what exactly do software companies pay their programmers for then…?

              In some cases, at least, they pay them to write instructions for particular programmable computers thereby enabling those particular programmable computers to perform desired information processing functions accurately such that people actually want to use/purchase those particular computers.

              People also pay mechanics to work on their cars. When the mechanic adjusts the seats, is he creating a new car? How about when the babysitter teaches the kid to sing a song. Is that a new kid? After all, the babysitter gets paid.

              Oh wait — that stuff is totally different! Because you say so.

              Carry on, gentlemen.

            8. The “adjust the seats” non sequitur.

              Tell me the difference Malcolm between resistors in series and resistors in parallel.

              Then try not to purposefully obfuscate with known poor ‘examples.’

      2. Facts are facts people – if you cannot start from this baseline, one must wonder why.
        -anon

        I prefer the man who calls his nonsense a mystery to him who pretends it is a weighed, measured, analyzed fact.
        — George Bernard Shaw
        In Evan Esar, 20,000 Quips and Quotes, 704.

      3. 1. Software is made by man. Agreed.
        1.1 It, when loaded and executed, is like the bullet to the gun or the toilet paper to the holder. A consumable.
        1.2 Software can be made part of the machine, such as by fixing it. Such is known as firmware.

        2. Upgrade the machine? Perhaps, if it becomes a fixture.

        3. Equivalent? Not software, but a programmed computer as a replacement in a circuit and having signal inputs and outputs.
        3.1 In a computer, software can replace or add functionality. This is firmware or microprogramming. But such is part of the machine. It does not go away when power is turned off, and is automatically executed.

        The problem with your statements is that they are half-truths.

        This harkens to Rich in Benson when he relied on Bernhart to declare programmed computer statutory because it was a new machine, and then declared a program (the method claim) before him was statutory because it described a machine process.

        But, Rich was overruled — and in a way that overruled Bernhart as well. That is why no serious person takes the Alappat dicta as the law. Alappaat was NOT argued to the Supreme Court in Alice. And it was not even argued to the Federal Circuit as far as anyone can tell from the court’s opinions.

        Why?

        1. 1.1 It, when loaded and executed, is like the bullet to the gun or the toilet paper to the holder. A consumable.

          Wrong. – you neglected the critical aspect of the exceptions to the judicial doctrine of printed matter.

          Ned – this has been repeatedly pointed out to you and it can only be taken as you are purposefully choosing to make an argument in error by your depraved indifference.

          Shameful and unethical.

          1. Shameful and unethical.

            Uh 0h — looks like Patent Jeebus is back to shaming people who don’t discuss what Patent Jeebus wants to discuss in the way that Patent Jeebus wants to discuss it!

            You better “watch out”, Dennis — you’re next!

        2. Further, I have repeatedly asked you to provide the proper legal citations for your extra-statutory additions.

          You have always run away at this point instead of providing those asked-for citations.

        3. An invented machine component is no less an invention for not being implemented into a machine.

          A manufacture remains a statutory category all on its own.

          Rivets, tires, and bullets – and Ned running away.

        4. The Supreme Court in Benson: We do not so hold.

          And Ned runs away.

          Care to speak of Flook? – as you know I will add the quote from that case that you run away from as well.

          Care to address your non-personal nature of your posts? As you still seek to dissemble on that point as well.

        5. Alappaat was NOT argued to the Supreme Court in Alice.

          I already told you why – pay attention: both sides stipulated that the software actually did create a new machine.

          I told you: Perry muffed that in his oral arguments. You must take the fact of that stipulation and combine that with the other things that Perry put on the record.

          1. Anon, Just checking … Indeed, you are right, anon. According two Phillips, the parties agree that the claims of formally pass 101 as claims to processes and “improved machines.”

            Of course the Supreme Court does not have to accept that stipulation, but it is telling.

            It does put the onus on the Supreme Court to tell us why and otherwise statutory subject matter is nevertheless ineligible. It does look like Perry painted himself into a corner.

            1. How would the Supreme Court not accept a mutually agreed upon stipulation Ned? Would not such a move be considered dicta, as the parties have only argued a different issue?

              Then also consider Perry’s other admissions on the record: pure data manipulation is fine; data changes with all other hardware being fine.

              All of this is on the record.

            2. hit post too quickly:

              data changes with all other hardware being fine.” should read:

              data changes with all other hardware being exactly the same is fine.

            3. A further thought for reflection: the combination of Perry and Verrilli – given the stipulations agreed to by all parties and the issue those parties have before the Court – leave only an all or nothing path.

              Given that both sides have relinquished (even if you do not) that software does in fact create a new machine, Perry’s only out is the path of “abstract.” A path that cannot distinguish what he attempted to distinguish, as he sacrificed too much in his slick oral arguments. He admitted that patent eligibility attaches for things that the anti-software patent crowd would clearly say are perfect examples of ‘abstract.’ He jumped to trying to argue “these claims,” but he forgot the procedural posture of the case – the claims have not been construed. He tried to argue that not all of the structure (structure mind you as defined in the dissenting opinion of another recent case – the thread link to patentlyo.com at 6.2.3) pertained to the claims at issue and was rebuffed on that very point by Phillips.

              Virrilli’s only path forward was an all or nothing gambit against all business methods. Phillips, for all of his apparent stumbling decimated the “Bilski-redo-but-only-by-even-more-complicated-machinations” in his final summary.

              And the Court itself will be firmly reminded – by its own members – that 4 is not 5.

              Do you think that the Court will reach beyond the issue that the parties agreed to and placed before the Court to Write Large and (over-write Congress, the branch of the government actually authorized to write patent law) and remove wholesale business methods and software?

              On the facts (as stipulated) before the Court?

              LOL – no wonder even Breyer was so flummoxed – even as he said he read all of the Amici Briefs and “found them helpful up to the point of making a decision” – but tellingly, actually short of making that decision. I think that even Breyer realizes that he just does not have enough legal authority to go the “all” route. He wanted a ship to sail between, but Perry and Verrilli could not deliver that ship.

            4. How would the Supreme Court not accept a mutually agreed upon stipulation Ned?

              “We don’t accept the parties’ apparently shared view on how to determine eligibility of information-processing ‘machines’. The amici have a better understanding — and we are thankful for their input.”

              Or they just ignore it because it’s far less important to them (and everybody else) than it is to you. It wouldn’t be the first time that happened, would it?

              Maybe you should start working on your impeachment brief now. Get a head start. You can circulate it here for comments.

        6. “both sides stipulated that the software actually did create a new machine.”

          I don’t recall that as being explicitly what he stipulated. But you can feel free to cite what he explicitly said to show why you think that. We discussed this issue before but you and NWPA never would tell me why you thought what he said was important. Looks like now you’re starting to let on why you thought it was important. So let’s revisit that if you want to.

            1. Yeah I see what you said above. Whatever dreams make you feel better bro. 9-0, all claims going down. 100% probability. To the extent you’re worried about all business methods or software meh, yeah you can feel free to tremble a bit, as there is a small chance they’ll get tired of all the gamesmanship and put and end to it all, tossing the ball to congress to be explicit. But I wouldn’t say that’s going to happen.

            2. tossing the ball to congress to be explicit. But I wouldn’t say that’s going to happen

              Tell me 6 – do you think that the Court has the authority to so say (if , for argument’s sake, they do decide to want to say)?

              You do realize (maybe, but maybe not) exactly why 101 is written in an open gate format, right? You do realize that innovation cannot be known a priori, and thus your desire for explicitness is a FAIL from the start.

              Then take a look at all the other things that are not “specific” as you would use that term. You clearly fail to understand the baseline facts as I have posted more than once here. You are still wanting to close your eyes and complain that you do not see. There is a real easy solution to your problem of not understanding.

            3. “Tell me 6 – do you think that the Court has the authority to so say”

              I think that the court most certainly has the authority to so say. In fact I know so. Their authority is limited to interpreting. The court can simply get fed up with all the gamesmanship and abstract tomfoolery about what should and should not be considered subject matter that congress wishes to have in its entitlement program. Then the court can simply be a literalist interpreter of 101, note that software, as a fundamentally different entity from the big 4 is not listed (kind of like they did in Nuijten), and declare all patent claims that would effectively cover software ineligible. Bam. That’s it. That’s all, end of story. That is precisely within their authority. And likewise they could also say that commerce, is distinct from the historical term “art”, which they interpret “process” in 101 to mean even today, and declare all patent claims that are effectively drawn to “business methods”, aka methods of performing commerce (or however they want to word it), are ineligible as well. Bam. That’s it. End of story for business methods.

              Then congress gets to take a bite out of this politically poisonous apple if it so desires and properly and explicitly direct exactly where it wants to grant entitlements regarding those two subjects.

              Frankly at this point I’m surprised that both sides of the argument aren’t fed up enough to desire to force the hand of congress. I’m guessing that at least one side is (the one I’m generally on) and the other is not since they want to gobble up all the scraps while they can before the hammer comes down.

            4. 6, one can see from Verrilli’s argument that the government wants to CONFINE computer-implemented inventions to technology improvements. Their argument is bold and right, but it is not easily made given Bilski not approving of the MOT or of the Steven’s alternative and equivalent useful Arts limitation. The government argument, if adopted, could be the greatest leap forward in patent law since Morse. If not adopted, I see continuing chaos and perhaps congressional intervention.

            5. Their argument is bold and right,

              Right? You do realize that you are dead wrong on this point, right Ned? You yourself have admitted to trying to use EP law on this point, recognizing that US law is not limited to technical arts – this is on the record here.

            6. If not adopted, I see continuing chaos and perhaps congressional intervention.

              I find it absolutely amazing that you see the Court violating the Constitution and doing what could not be done in Bilski (the explicit re-writing of the words of Congress to eliminate business methods – the point that cost Stevens his majority position) as “OK” and the absence of this violation as something that would cause chaos and perhaps invoke congressional intervention.

              Your view of the Constitution – and what would invoke congressional action – takes on some very peculiar notions Ned.

            7. “The government argument, if adopted, could be the greatest leap forward in patent law since Morse. If not adopted, I see continuing chaos and perhaps congressional intervention.”

              Obviously so Ned. But let’s all just pray for the congressional intervention.

    2. Night, I hope you can understand why no one like Lemley would ever agree to debate with a person such as yourself who mainly engages in ad hominem attacks. That is why I asked you earlier just how you say you know Richard Stern. It seems to me highly unlikely that he would knowing give you the time of day.

      1. And I hope you understand Ned – how Your view of Malcolm and his swagger are equally d@mming to you and your position.

        Take any Malcolm post and remove his ad hominem, his vapid and short list of scripted items (like AOOTWMD) and you are left with nothing but ‘I want this policy because I said so “Red Queen / Humpty Dumpty mouthings. His posts contain no law. His posts contain no facts.

        While NWPA does tend to the hyperbole and ‘sky is falling,’ he vastly outclasses Malcolm on any and every thread.

      2. Ned, that read the posts. Read all the ad hominen attacks against me. Furthermore, plenty of people have debated me. I can be a very civilized person and if the rules demand civility then I would follow them. I have presented at conferences in front of hundreds of people. And, been an adjunct professor several times.

        So, I think I do qualify as a person that is debate material.

        1. Night, “against you?”

          Listen, debating the issues is not a personal attack, AFAIK.

          What I do agree with, however, is that attacking one’s argument by questioning his or her motives or agendas, or intelligence, or the like is indeed a personal attack. Now, I haven’t paid much attention to people who comment on your posts that are of this nature — but if MM has suggested that you are biased because of interest, I wouldn’t be surprised.

          1. Listen, debating the issues is not a personal attack, AFAIK.

            LOL – your blind eye towards Malcolm’s, um, “swagger” renders your statement more than just a little dubious.

          2. …and Ned, motive are more than fair game – especially when one presents only “policy’ and ‘opinion,’ omitting any semblance of law or fact.

          3. Ned, buzz off. I know what debating is and don’t need you to tell me. And, read what I wrote? So, you are saying ad hominem attacks are not against me when used? Whatever.

            And, above –the computer is in the real world Ned.

      3. “knowingly give you the time of day.” Such harsh words from you Ned.

        Just remember that violence is committed with intellectually dishonest arguments. The false civility of those that govern would turn the stomach of any moral human being.

        Richard Stern knows me. And, he has given me the time of day before.

        1. And I have always been civil to Richard Stern in person. I hold his intellect in high regard, but believe that he took intellectually dishonest positions in his Benson brief and has never been able to find redemption after his horrible breach of ethics and morality.

          It is a terrible shame I think. I think Richard Stern could have been a more positive influence on patent law than Judge Rich.

          1. Well, Night, Richard did come up with the MOT — I think this is right out of Deener. Is there anything intellectually wrong with that?

            His arguments regarding laws of nature and products of nature have become the law.

            In contrast, Rich has been repeatedly overturned by the Supreme Court, or legislatively overturned by Congress. It was he that labelled 102(g) prior art outside of a priority contest. He was behind 102(f) being prior art for 103 purposes. He was legislatively overturned with all the exceptions added to 103, and now with the new 102 that requires prior art to be available to the public. Hilmer I and II were excoriated and now overturned. His opinion in Donaldson was not well received.

            His jurisprudence on functional claiming is gradually being eroded. And State Street Bank is treated as the Dred Scot Federal Circuit decisions, denounced far and wide, in congress and in the press.

            What kind of legacy is this?

      4. And, Ned, do you really think the great and powerful Lemley needs your help? The great and powerful Lemley would never debate me in a fair forum because he would lose and he knows it. The reason is that he present intellectually dishonest arguments that to my mind have the intent to burn the patent system down.

        So, please Ned, let the great and powerful Lemley handle himself. He has enough people that launch vicious attacks on me. Just read this string of posts.

        1. If you haven’t noticed, Night, I disagree with Lemley, in whole or in part, on virtually everything he has published. However, I think he is motivated to make the system better, not to tear it down.

          I specifically disagree on his functional claiming paper because I think software claims are really process claims and that processes are defined by acts, and because one of ordinary skill can write software given an algorithm.

          He is way off base to the extent that a method claim recites acts and the specification describes the acts. There is nothing overbroad about such.

          This being said, if step is recited not in terms of what it does, but in the result it achieves, I do believe that it is governed by 112(f). But the corresponding structure is the algorithm that creates the result. Software itself is not required corresponding structure.

          1. Tell me again (or yet for the first time) Ned – how does one obtain a copyright on a series of acts?

            Your silence to this question is most telling.

        1. LOL – again with the spin of “because anon says so” when I have so often corrected you that this is so, not because I say so, but because it is so.

          You are more than welcome to actually try to refute these things as factual matters.

          As is typical, you will not do so, because you cannot do so.

          So if the only thing you have to say in reply is naked ad hominem, you are invited to keep that to yourself.

          1. I have so often corrected you that this is so, not because I say so, but because it is so.

            Yes, Patent Jeebus! Preach it!

            Bow down everybody.

  9. NWPA From my perspective what I see is the patent system being burnt down with absurd positions that have nothing to do with reality.

    This is just the same recycled, generic, sky-is-falling horseshirt the patent teabaggers have been spewing since KSR and probably before then. KSR was supposed to be the end of the patents. Since KSR, the number of patents granted has exploded. Likewise with Bilski and Prometheus. You guys just never stop whining.

    What’s worse (for you) is that you can’t even keep your silly scripts straight (just like your generic teabagger counterparts who famously ranted about “keeping the government out of their medicare”).

    Here’s the inarticulate and shameless self-promoter John White doing the chicken dance over at Quinn’s blog:

    Why am I resorting to the emotional heart strings; because the current round of patent reform is an existential threat to the US patent system. If these proposals pass, we will be left with a very, very expensive registration system in which the Fortune 50, and no one else, will be able to participate. In case no one has noticed, the Fortune 50 do not innovate

    The Fortune 50 do not innovate? Hmm. Here’s the post immediately following White’s post:

    Our latest chance to check in with [Intel -- currently 54 but regularly in the Fortune 50] has revealed some truly unique technologies meant to improve mobile devices and communication systems for a great number of global consumers.

    Here’s the post two prior (this is the same blog, folks!):

    When it comes to global technological innovation, there are few companies in the world that produce the level of intellectual property of General Electric [#6 in the Fortunte 50], a multinational conglomerate in energy, technology infrastructure, consumer appliances and more.

    Apple is 6 and their innovations are regularly lauded at the same blog (from March: “The intriguing software and hardware innovations of this technology giant makes Apple a fun corporation to profile for our Companies We Follow series.”).

    HP is 15 (their innovations were featured in January). IBM is 20 (featured in March: “When it comes to patent holdings from the U.S. Patent and Trademark Office, the International Business Machines Corporation (IBM) of Armonk, NY, is far and away the major player in this field”).

    Microsoft is 35 (featured in September: “We’re pulling up a number of intriguing issued patents and patent applications filed with the U.S. “). Amazon is 49 (their patents were featured in March).

    Google is 55 as of last year, probably higher now (featured in March: “When discussing technological innovations, it’s nearly impossible to overstate the activities going on at the headquarters of Google Inc.”). Cisco is 60 (featured last May).

    These are just the so-called “tech” companies.

    Gee, does anybody have any idea why a professional patent fluffer like Gene would devote so much blogspace to lauding the innovations of these Fortune 50 companies if (1) they are in fact not innovating anything (as John White suggests); or (2) these innovative companies are trying to destroy the patent system for their own benefit (as is asserted regularly at Gene’s blog)?

    It couldn’t possibly be the case that Gene highlights certain patent activities by certain companies because it attracts the sort of bottom-feeders and grifters who enjoy following the patent activities of such companies so they can “innovate” patent claims designed to interfere with such companies. Could that possibly be the case?

    Nah. They’re not that clever.

    1. So, again you don’t address the substance of what I say but instead conflate me with Bob White. Nice. Try to remember that the teabaggers don’t want patents like you.

      1. conflate me

        I’m not “conflating” you with anyone. I’m merely pointing that your team is going into its apocalyptic stance again, something you do just about every 6 months for the past 5-10 years in response to proposed legislation, actual legislation, or a holding that you don’t like.

        You said it yourself in this thread: the “anti-patent” forces are “winning”, which is why you’re head is exploding.

        The sad thing is that there is no reason for your head to be exploding. None of these changes were unpredictable, of course, given the junk that’s been flowing out of the USPTO and how that junk is being exploited. In fact, it was predicted, right here in these very threads.

          1. You mess this up like all the time bro. You’re = you are. Your = your.

            I know, I know. I’ve been trying to remember to proof and fix that (also their/they’re).

          1. Malcolm’s hypocrisy is quite evident as he so often wants to lump things together (above this notion that all pro-software advocates have jumped on a “impeach judges who misuse the term of ‘monopoly’ mantra” that are ‘convenient’ soundbytes (no matter how misleading) for him, but ignore those things that are rather inconvenient – like his ‘teammate’ Perry and the too-clever-by-half admissions against interests in the Alice case that are on the record.

            link to 2.bp.blogspot.com

        1. Nice of you to take a really complex issue regarding innovation and large corporations and then try to wipe Mr. White’s entire argument out using this one item.

          MM, was the assertion that large corporations don’t innovate central to Mr. White’s argument? Also, the entire debate whether or not large corporations actually innovate is a complex one that anyone that has studied innovation knows about. There is a long history with corporations trying many different models to innovate. But, please do simply everything. It fits you.

          MM is a teabagger. MM is a teabagger.

          1. MM, was the assertion that large corporations don’t innovate central to Mr. White’s argument?

            Yes. The argument is that the patent system won’t work and innovation will cease (the “existential threat”) if we pass reforms that allegedly “favor” large corporations because (as alleged) those corporations “don’t innovate”.

            But either way it was a very silly assertion, and especially so given that the same blog is endlessly extolling the innovative prowess of those companies.

            1. LOL – that is not the argument – no more so than your lame “But-for” arguments.

              You really need to try to stop spinning – as you have no clue as to which way is up.

    2. May I suggest that you try to actually hold and actual conversation with the actual author of that which you do not like on that actual other blog Malcolm?

      Actually.

      ;-)

        1. I am glad that you find the prospect of engaging in a discussion so funny.

          As with so many other things, this says far more than you think it does (and what it says is far more d@mming of you than anyone else).

          1. I am glad that you find the prospect of engaging in a discussion so funny.

            The general proposition of “engaging in a discussion” is not what I’m laughing at. I discuss stuff with people all the time.

            Nice try, though, “Mr. Intellectual Honesty.”

  10. Tr0llb0y: Reading Ted’s defense of Lemley lawlessness reminds us exactly why academia, being most definitely not a meritocracy – and being more in line with an incestuous kiss@ss guild that rather famous historical figures have also bashed –

    Oh my! “Someone famous” once bashed academia! That changes everything.

    Seriously: the patent teabaggers never fail to amuse.

    1. Oh my! “Someone famous” once bashed academia! That changes everything

      Those that do not learn from history are bound to repeat it.

      You might just want to try learning a little from history, Malcolm – like why you in particular are the person with by far the most odious posts removed from this blog.

      Imagine that: you, learning something. You, not repeating something. You, perchance even getting something right.

  11. “All this academic art is far worse than the trade in sham antique furniture; for the man who sells me an oaken chest which he swears was made in the XIII century, though as a matter of fact he made it himself only yesterday, at least does not pretend that there are any modern ideas in it, whereas your academic copier of fossils offers them to you as the latest outpouring of the human spirit, and, worst of all, kidnaps young people as pupils and persuades them that his limitations are rules, his observances dexterities, his timidities good taste, and his emptinesses purities. And when he declares that art should not be didactic, all the people who have nothing to teach and all the people who don’t want to learn agree with him emphatically.”

    ~ George Bernard Shaw

    but that is only Shaw bashing professors…

    1. “Japanese submarine slammed two torpedoes into our side, chief. It was comin’ back, from the island of Tinian to Laytee, just delivered the bomb. The Hiroshima bomb. Eleven hundred men went into the water. Vessel went down in twelve minutes. Didn’t see the first shark for about a half an hour. Tiger. Thirteen footer. You know how you know that when you’re in the water, chief? You tell by lookin’ from the dorsal to the tail. What we didn’t know… was our bomb mission had been so secret, no distress signal had been sent. Huh huh. They didn’t even list us overdue for a week. Very first light, chief. The sharks come cruisin’. So we formed ourselves into tight groups. You know it’s… kinda like ol’ squares in battle like a, you see on a calendar, like the battle of Waterloo. And the idea was, the shark comes to the nearest man and that man, he’d start poundin’ and hollerin’ and screamin’ and sometimes the shark would go away. Sometimes he wouldn’t go away. Sometimes that shark, he looks right into you. Right into your eyes. You know the thing about a shark, he’s got…lifeless eyes, black eyes, like a doll’s eye. When he comes at ya, doesn’t seem to be livin’. Until he bites ya and those black eyes roll over white. And then, ah then you hear that terrible high pitch screamin’ and the ocean turns red and spite of all the poundin’ and the hollerin’ they all come in and rip you to pieces. Y’know by the end of that first dawn, lost a hundred men! I don’t know how many sharks, maybe a thousand! I don’t know how many men, they averaged six an hour. On Thursday mornin’ chief, I bumped into a friend of mine, Herbie Robinson from Cleveland. Baseball player, boson’s mate. I thought he was asleep, reached over to wake him up. Bobbed up and down in the water, just like a kinda top. Up ended. Well… he’d been bitten in half below the waist. Noon the fifth day, Mr. Hooper, a Lockheed Ventura saw us, he swung in low and he saw us. He’s a young pilot, a lot younger than Mr. Hooper, anyway he saw us and come in low. And three hours later a big fat PBY comes down and start to pick us up. You know that was the time I was most frightened? Waitin’ for my turn. I’ll never put on a lifejacket again. So, eleven hundred men went in the water, three hundred and sixteen men come out, the sharks took the rest, June the 29, 1945. Anyway, we delivered the bomb.”

      ~ Robert Shaw

      but that is only Robert Shaw bashing sharks …

      1. So, MM decided to blow smoke. Plaster us with his nonsense posts to drown out the real content. How sweet of sunshine.

        (Oh, and, by the way, the teabaggers and libertarians don’t like patents like you. So, you are the teabagger. )

        1. NWPA the teabaggers and libertarians don’t like patents

          Pretty much nobody likes patents as much as you and Tr0llb0y and your fellow footsoldiers in the teeny tiny army of blogtrolling sycophants.

          But I’m hardly the first to notice the similarities in rhetoric and ideological themes between the staunchest patent fluffers and the staunchest defenders of modern republicanism. And those similarities keep popping up. In the words of your own peeps over at Gene’s place:

          The Tea Party should be a huge ally against the anti-patent group, but they did very little to stop The America Invents Act. …The only conservative talk show host I know of who fought this legislation was Phyllis Shlafly, and I don’t think her show has that large a following. Rand Paul consistently voted against the bill

          Phyllis Shafly. Rand Paul. The best and the brightest, folks! Or this:

          The “tea party” or similarly conservative political groups should be the natural allies of a pro-patent political movement, to counter the anti-patent lobby. The patent system has deep Constitutional roots, rewards individual initiative, and encourages private enterprise, all of which coincide with conservative political values.

          Because anti-patent commies hate all those things! LOL.

          1. similarities in rhetoric and ideological themes

            LOL – funny how you somehow fail to notice anything at all about your own similarities in rhetoric and ideological themes.

            KA-BLOOEY !

  12. 1. Lemley’s arguments betray his intent. “Software has no structure,” is a statement to burn the system down. His functional claiming paper is a paper that mischaracterizes functional claiming, which I believe illustrates that he has an intent to burn the system down.

    2. Complete dodge of the substance.

    3. Complete dodge of the substance.

    4. The professor writes: “We shouldn’t care what hardware in the computer might perform that function per se, but we might want to limit that element to the specific analysis disclosed in the specification if indeed that is the exact point of novelty in the claim. Presumably, enablement should do that job, but given how weak that doctrine has become in practice, another useful approach might be via 112(f), or a modified version thereof.”

    Enablement includes the solutions that are enabled by the specification to a PHOSITA. You appear to be trying to dodge this point. You see this is one of those cases where I believe that Lemley (and you) trying to dodge this VITAL point in order to try to burn the system down. Without those embodiments that are enabled (as well illustrated by LizardTech), then it becomes too burdensome to write the specification. So, here I have identified a vital point and supported it with case law. Your reaction: blow smoke and try to conceal the substance of my argument. My high school debate team members would have excoriated you in front of the judges. But, then you have a platform where you cannot be judged, don’t you?

    If you want real debate on funtional claiming, then I will spend the time to debate you. But, you would have to turn off the smoke machine.

    5. anon can comment.

    6. The pot calling the kettle black.

    7. Anonymity. So, you are going to ignore thousands of years of debate on this issue and get on your soapbox and say anonymity is bad. Well, I think the educated readers probably have read about anonymous pamphlets during the revolutionary war and know at least some of the counter arguments, so I won’t repeat them. I will say that in the real world where I live that this issue has been discussed with managing partners of the firm. And, it was determined that to take a stand either for or against patents would lose us clients. The world has become intolerate. Maybe you are so naive that you don’t realize that there is a bigger picture where big corp has decided that patents are going to end. You are part of that whether you consciously are aware of it or not.

    8. See 6. “Bashing,” attacking me being anonymous rather than the substance of my arguments, etc.

    My summary: On this board I cannot make a substantive argument without being blasted by the paid bloggers and extremist. Just read this string of posts. I also am regularly threatened with retribution outside of this board. They have also posted using my handle. They have in effect done everything they can to try and silence me. So, I do not feel so sorry for you or Prof. Lemley. That is what I have to deal with. What I write about you and professor Lemley is, in general, fair criticism. Deal with it. My criticism of your career is fair game. (I don’t try to pretend you are a racist, or call you racist names, or threaten you, which are all things I have deal with often on this board.)

    To you professor: stop playing games. You want a focused discussion on functional claiming, then that would be great. But, you thinking that you can turn your smoke machine on is not a debate. You simply do not address the substance of my arguments. And your arrogant dismissal of LizardTech evinces both ignorance of patent law and a pompous attitude. LizardTech illustrates that what is fair to claim is the scope of enablement. That the scope of enablement include all the embodiments that are enabled by the specification. That is a KEY point.

    You simply do not know how to fight fair. You simply do not know how to engage in real debate. We can make rules. No content of the post other than functional claiming. No other comments.

    I challenge you professor to that debate on functional claiming.

    1. And to the point of my comment “too burdensome.” You say below there is no evidence. But, do you understand professor that I practice patent law. I write patent applications. That gives my comments weight. I speak from experience of trying to claim all the embodiments that are enabled by the specification so that my clients inventions are not copied.

    2. NWPA,

      You will note that the good professor completely dodged three simple statements of fact (his “restatement” of an improved machine at the second paragraph at 4 being too slippery).

      One wonders why such items of import are not squarely addressed.

    3. Night, two points:

      1. I am not a paid blogger. I have a lifelong interest in patent law.

      2. Re: Lizardtech: LizardTech, Inc. v. Earth Resource Mapping, Inc., 424 F.3d 1336 (Fed. Cir. 2005). The case held claim 21 invalid under 112(a) for claiming a result, essentially, functional at the point of novelty. LizardTech is therefore not inconsistent with Ted’s argument.

      Furthermore, scope of enablement is not the entire rational of the holding. It lacked both a written description support AND enablement for a claim that did not include “maintaining updating sums of DWT coefficients.”

      From the case: “After reading the patent, a person of skill in the art would not understand how to make a seamless DWT generically and would not understand LizardTech to have invented a method for making a seamless DWT, except by “maintaining updating sums of DWT coefficients.”

      Again, the holding of the case is that the claim was “generic,” which means that it claimed beyond the scope of the disclosure, of enablement and claimed a result. This is what both Ted and I are talking about.

      In the denial of en banc, LizardTech, Inc. v. Earth Resource Mapping, Inc., 433 F.3d 1373 (Fed. Cir. 2006), Rader disagreed with the holding, allowing that a claim to a fastener IS supported by the disclosure of a screw. All this proves is that Rader is not distinguishing between old elements and new. If the invention is the picture frame, and the means for fastening is unimportant, fastener may well be supported by the disclosure of a screw.

      But if the point of novelty is the type of fastener, the fastener claim is unsupported by the disclosure of a screw, and the reason it is should be obvious.

      1. claiming a result, essentially, functional at the point of novelty.

        You see Ned, that’s where you are wrong.

        “claiming a result” is simply not the same thing as “functional at the point of novelty”

        You keep on repeating a mantra that is not grounded in anything but a Ned-IMHO-defined-as-I-want-to-define-it fallacy.

        “essentially” is not.

            1. No, it is Rich’s interpretation of Morse and its progeny that because later in cases like Perkins Glue, “functional at the point of novelty.”

          1. “It is alleged that the rejection is inequitable. However, equity is satisfied if appellant can obtain claims which adequately protect his invention. Appellant has been allowed such claims on his apparatus. The apparatus claims provide concrete protection for appellant’s invention. In the present state of the art the specific method which appellant claims can only be performed by the apparatus claimed by appellant. The only purpose served by granting appellant the specific method claims would be to discourage others from inventing a different apparatus to perform the specific method. Such discouragement is not in accord with the policy of the Patent system.”

            Yeah, a long time ago the PTO was all about promoting the progress of the useful arts. Now we just acquiesce to the whims of the judiciary regardless of the consequences to the promotion of the useful arts.

            1. “[I]t is advantageous to the public in the promotion of progress of the useful arts, the constitutional objective of the patent law, to provide inducement for the invention of devices which are the functional equivalents of devices already known. It is not the object of the policy behind the patent system to encourage satisfaction with or commercialization only of the first device for performing a given function that happens to come along. And for those who may be interested in promoting competition in the interest of the consuming public, the greater the number of functionally equivalent devices which are encouraged onto the market by patent protection, the better off the consumer will be.”

              Indeed, sage words from a sage office long ago. Such wisdom was lost to the ages.

            2. “I think that it takes much more than the discovery of a possible flaw in the reasoning of a court of years ago, which may or may not have misunderstood the purport of earlier decisions, to overturn a well established and accepted rule of nearly seventy years’ standing. It does not seem to me that the facts here justify the wholesale reversal of the settled law of this court on the abstract proposition of “equity.” Rather, it should be asked “equity” for whom? The inventor here? Other inventors in this and related fields? The public?”

              And that is exactly the fundamental question at issue to this very day.

      2. I am not a paid blogger

        I think you make a subtle twist on the accusation.

        You do post in pursuit of a paid position.

        Your posts are not of a personal nature. We both know this. We have both known this for a very long time.

        This is more than evident in the number of times that you have left conversations hanging because to complete the conversation, you would have to put things on the record against your client’s interests.

        Tell me Ned, how goes your personal understanding of the Nazomi case?

        1. anon, this post is a joke.

          Did you know I was the chair of the AIPLA patent law committee in the early ’90s talking about the exact same things I am talking about now?

      3. >Again, the holding of the case is that the claim was “generic,” which means >that it claimed beyond the scope of the disclosure, of enablement and >claimed a result. This is what both Ted and I are talking about.

        Unbelievable that you can try to say that LizardTech supports your position. It does not. LizardTech is a beautiful case that illustrates that the patentee is entitled to the scope of enablement–nothing more and nothing less.

        Sheesh. LizardTech shows that scope of enablement can be policed and that the inventor is entitled not just to the embodiments but what is enabled by the specificaiton to a PHOSITA. Sheesh. No shame. No intellectually honestry. Sophistry. I feel dirty after arguing with you lot.

        1. Night, since the claim 21 was held invalid under 112, its holding cannot support the proposition you state.

          There is a difference between dicta and holding.

    4. Night, just one more point, if software is structure, let us start with its most essential component, the bit.

      Describe the structure of a “1.”

        1. Night, a programmed computer and a circuit are equivalent when they both calculate a mathematical algorithm. But a circuit has inputs and outputs to signals, and to do the same, the computer has to have inputs and outputs to signals that include ADCs and DACs.

          Does anyone claim programmed computers in this way? No. But they say they are equivalent in arguments galore, but neglect to include very necessary components to make them equivalent.

          The mendacity of the argument is apparent.

          1. Ned, don’t be absurd. A special purpose computer chip and software and a general chip are equivalent. You know that. You have admitted to that.

            You and Lemley are a lot alike.

            1. Night, in context, as in Alappat, they are equivalent. You seem to ignore the context part.

              Take the Google car with the autopilot. At its heart is a program. The claim:

              1. A programmed computer for automatically driving a car, comprising:

              steps A-C, all of which operate on data and output data.

              Now consider that you take Google’s program from their operating computers and store it on your cell phone and run it. Now, I hope, that even you will agree that even though the cell phone literally infringes the claim, there is something critically missing.

              Now get in a car. You have it all, the cell phone running the program, and a car. But, still you are missing something, are you not?

              Yes, that is it, Night, you are not hooking the computer up to receive signals from the car and output signals to the car. You are claiming the programmed computer in the abstract.

              Context, Night, context.

              As Verrilli said, programmed computers that have functionality in a larger context are eligible. But, I would also think that this requires the claim to actually claim the context or else the claim remains abstract.

            2. And, I would like to add, that not once did Carter Phillips argue Alappat to the Supreme Court. Not once.

              There is a reason, Night. Guess what that reason is, Night?

              The proposition is farcical, that is why. Only mind-numbed robots recite that mantra anymore. Intelligent folks don’t ruin their argument with such patently false similes.

            3. >>You are claiming the programmed computer in the abstract.

              This is a nutty mantra. The cellphone whether or not it is hooked up or not is processing information. That takes time, space, and energy. The cellphone is equivalent to a special purpose chip to do the driving. That is not abstract. But, again, you are the guy trying to tell us that a car is just fine with square tires. Please stop.

            4. Ned,

              You attempt a difference that has no distinction. All claims are read as by a person having ordinary skill in the art to which the invention pertains – context is present.

              If anything, this only highlights the ridiculousness of those who refuse to address basic facts.

            5. Ned,

              The better reason why Alappat was not argued was because both parties stipulated that the statutory category aspect was met.

              You seek to diss Philips, but it was Perry who blundered on that point.

            6. Ned,

              The stipulation is reflected by Phillips at the very start of the oral arguments, and Justice Kennedy interrupts to make special note of the stipulation.

              to wit:

              MR. PHILLIPS: It is common ground between the parties in this case that Section 101, by its terms, and with the sweeping interpretation this Court adopted in Bilski applies directly to the patents here. These are system and process patents that speak directly to Section 101.

              The only issue, then, is whether the judicially recognized exception that this Court adopted many, many years ago applies under these circumstances.

              JUSTICE KENNEDY: And just repeat, it is common ground between the parties that …

              MR. PHILLIPS: That… that our… our patents speak directly to the language of Section 101, that is, they are a process, and they are machines, and they are… and they are improvements to the process and the machines. They don’t… they don’t dispute that by its terms 101 applies. The only argument between the parties is the abstract idea exception that exists and whether that bars us from otherwise satisfying Section 101.

            7. anon, your point has always been, anon, that Alappat held that a programmed computer was statutory.

              If you’re only point has always been that a programmed computer is a computer and a computer is a machine and a machine is listed in the four categories, then we have no dispute between us.

              The question has always been is whether the programmed computer is a new (Or improved) machine.

            8. Go. Look at the fact at what was stipulated below (and is referenced by me here in the opening remarks of the oral argument – on the record).

              I present a clear fact to you from this immediate case of Alice, Ned – try to deal with this here and now.

              (just as I showed you using Black’s Law Dictionary in the immediate case of Alappat what was one of the holdings of that case – and you attempted to kick dust by referring to other cases – keep your focus sharp and do not kick up dust)

    5. “Enablement includes the solutions that are enabled by the specification to a PHOSITA. You appear to be trying to dodge this point.”

      NWPA they’re not dodging it at all. They fully concede that the enablement doctrine has become so weak that it is as you say. Their conceding is not “dodging”. And then after they’ve conceded that they turn to another avenue, 112 6th.

        1. “I noticed their game 6. LizardTech illustrates very well that there is a good way to police claim scope.”

          Well they disagree with the court in LizardTech then that such is a “good way” to police claim scope. Why do you get all huffy about this and act like they’re “dodging” your “points” etc.? They’re not dodging. They’re disagreeing with the court’s premise for announcing that, if indeed that actually was the court’s premise. Specifically the premise at issue is whether the scope of enablement is, in this instance, a “good way” to police claim scope. They don’t think that it is. You think that it is. There is no dodging here. It’s simple disagreement.

      1. 6,

        LOL – yet they will not admit to what they are doing – if they are doing as you suggest. TO do so would be to admit to an attempted twisting of law to cover something that particular law was not written to cover.

        Academics do not get to re-write law in their cloistered towers.

        1. “yet they will not admit to what they are doing”

          “they” i.e. the professor at issue, just stated it in this very thread for the whole world to read. You simply have trouble understanding what he is saying because of your being a psychopath.

          “TO do so would be to admit to an attempted twisting of law to cover something that particular law was not written to cover.”

          GASP! OMG! The horrors!

          “Academics do not get to re-write law in their cloistered towers.”

          No but they can urge the courts to do that for them in their cloistered courtrooms.

          1. Why do you insist on projecting “non-understanding?”

            I understand perfectly – you do not seem to understand the difference between that understanding and what the law actually states.

            Did you miss the civics lessons in grade school? Do you really think that academics get to make new law? Do you understand that it is you that does not understand what is going on here?

            1. I’m not “projecting” anything re re. You need to look that term up.

              “I understand perfectly”

              But you did not understand perfectly before I told you which is what I was referring to. I was referring to your state before my having made the previous post. I wasn’t trying to say that you can’t or are having trouble understanding now that I’ve held your hand through what he meant. What’s funny in your latest comment is that you have trouble understanding that I was referring to your previous having trouble understanding. That’s because you’re a psychopath. But it’s ok bro.

              Here, just to make you feel all better: Yes, of course you understand now after I held your hand. Is baby’s boo boo all better now?

              “you do not seem to understand the difference between that understanding and what the law actually states.”

              Everyone involved in this tit for tat is quite clear about what the law states. And we’re all quite clear that you’re constantly pre-occupied with “what the law states” to the point that you cannot complete the task of discussing the proposal made by the professor without bringing it up. That preoccupation is a symptom indicative of OCPD.

              Even so, yes, as I already explained, I know academics do not make the law. And yes, as I already explained, they may try to persuade a court to change “the law” or congress to change “the law”. Why do you continue to bring that up?

          2. LOL – read what you just wrote 6: you think that the academics want the court to re-write patent law.

            You do realize of course which branch of the government (and there is only one branch) has been sanctioned by the constitution to write patent law, right?

            Reading the map just is not the same thi gas writing the map. That’s a major “oops” on your part – let’s see if you understand why.

          3. “you think that the academics want the court to re-write patent law.”

            Yes, effectively that’s what Lemley and the prof here have suggested. Amazing insight you’re just now having anon. After like a year or two of Lemley’s proposal having been published. Great work! Astounding insight you’re having there mr. psychopath!

            “You do realize of course which branch of the government (and there is only one branch) has been sanctioned by the constitution to write patent law, right?”

            Both me and the academics understand that anon. But we also “understand” that the courts can “re-interpret” the law in such a way as to bend it to their will. As they often do. And you go off and sulk n rant about the judicial branch seizing power and twisting noses of wax.

            “Reading the map just is not the same thi gas writing the map. That’s a major “oops” on your part – let’s see if you understand why.”

            It isn’t an “oops” on my part. The academics are the ones making the suggestion. I’m simply telling your dumbas what they’re suggesting because you’re a psychopath that hasn’t understood the proposal until this very evening. And in fact I was telling NWPA iirc, you just seem to have jumped on his bandwagon of idiocy regarding the proposed judicial action.

            Either way, remember anon, I don’t actually back Lemley’s 112 6th proposal. I’m agin it.

            1. But we also “understand” that the courts can “re-interpret” the law in such a way as to bend it to their will

              LOL – more of the “it’s subjective and in the mind so anything goes” non-reality.

              And you think I have some type of issue with ‘control’…

            2. “and you still do not understand why”

              Even presuming you’re right: OH NOES!

              Not that you are right of course, you just like to think that you’re oh so better than everyone else because you can’t tell what other people know since you don’t know their thoughts or feelings. And because you think you’re super special anyway. It’s alright brosef, they’re all symptoms of psychopathy.

              “Why” according to you is that courts are only supposed to “interpret” the law as written by congress. And according to you 112 6th is “permissive” towards plain old functional language. Yes. I know all about it. Your view is tinged with some ta rdation though.

              You still need to look up “projecting” brosef. I know you’re trying your best to find something super smart to say, in psychological terms, since the discovery of your psychopathy, but at least use the terms right.

            3. I suggest that you return to grade school and review your basic civics course, 6.

              You seem not to understand something of a rather critical nature here.

              you just like to think that you’re oh so better than everyone else

              LOL – you need to look up ‘projecting’ as that is something that you constantly do. Somehow you want to portray someone with better knowledge and grasp of law and facts as merely thinking that such a person is themselves thinking that they are better than everyone else.

              That simply is not so – and it is merely you projecting this feeling.

              There is no psychopathy in recognizing one’s limits or another’s – even in a relative manner when you show your ignorance so thoroughly.

              “Why” according to you is that courts are only supposed to “interpret” the law as written by congress.

              (sigh) – it is not according to me, 6 (no matter how much you want to project that view)- it is according to the constitution and the allocation of authority in that document. I have told you this many times, and yet you seem incapable of understanding.

              And according to you 112 6th is “permissive” towards plain old functional language. Yes. I know all about it… tar dation

              6 – try something more than merely saying how you ‘feel.’ Support your proposition in some manner. Use facts and law. That is how the system works (had you even made it into law school, you would understand this).

            4. “That simply is not so – and it is merely you projecting this feeling.”

              Projecting which feeling re re? Be specific so that we can all lol @ your misuse of the term projecting.

            5. “(sigh) – it is not according to me, 6 (no matter how much you want to project that view)- it is according to the constitution and the allocation of authority in that document. I have told you this many times, and yet you seem incapable of understanding.

              “And according to you 112 6th is “permissive” towards plain old functional language. Yes. I know all about it… tar dation”

              6 – try something more than merely saying how you ‘feel.’ Support your proposition in some manner. Use facts and law. That is how the system works (had you even made it into law school, you would understand this).”

              We’ve been over and over this, I’m not going to rehash all that I’ve said for the thousandth time.

            6. “That is how the system works (had you even made it into law school, you would understand this)”

              See that? You’re always preoccupied with obeying the rules, whether they be rules/procedures of a court or the laws of statute or caselaw. You’re preoccupied so much so that you cannot complete the task of simply discussing their proposal without discussing following regulations or rules.

              It’s OCPD brosef.

            7. Ordinary people call that proper context 6 – but you really do have a problem in thinking that all of this is “subjective in the mind so anything goes.”

              It is not.

              That you refuse to understand this is a “you ” problem. Good luck with that.

            8. “Ordinary people call that proper context 6″

              Well at least you’re to the stage of making excuses. Look I know nobody likes to hear that they’re suffering from a personality disorder that is driving other people away from them. They’ll make excuses left and right and center before considering that their thought processes might be outside the norm just a hair. Even so, acceptance is the first step to getting better. Just consider it.

            9. Well at least you’re to the stage of making excuses.

              You appear to not understand what the phrase “making excuses” means.

              An explanation is not making an excuse.

              (and it’s pretty funny that you say you “know nobody likes to hear that they’re suffering from a personality disorder that is driving other people away from them” and yet you continue to ignore the symptoms of projecting and delusions that I have pointed out to you – you really might want to share these things with your doctor and she may be able to help you)

            10. Well anon you just said it yourself. You’re saying that you made an “explanation” and then according to you an explanation is not an “excuse”.

              “In psychology and logic, rationalization (also known as making excuses[1]) is a defense mechanism in which perceived controversial behaviors or feelings are logically justified and explained in a rational or logical manner in order to avoid any true explanation, and are made consciously tolerable – or even admirable and superior – by plausible means”

              Note the part about “explained”. Explanations are the most common form of excuses. A quick example on the kindergarten level you love so much is when you don’t have your homework? Explanation: the dog at it! The dog eating your homework is your excuse.

              ” symptoms of projecting and delusions that I have pointed out to you”

              Even if you were right, which you aren’t because you don’t know what “projecting” and “delusions” actually are, symptoms are not conditions. For the thousandth time. Symptoms are no conditions. Symptoms are not conditions. They’re as different as eligibility is from patentability. If you’d like to put forth some sort of condition that you think I have then have at it brosef. Name the condition. Go ahead. I’m waiting. I’ve been waiting for over a month now. Here, I’ll make you an easy to fill out form.

              I, anon, think 6 has condition: .

            11. Note the part about “explained”.

              Noted. Also noted is how you are getting this wrong in your passive/aggressive pursuit of trying to portray me negatively.

              in order to avoid any true explanation” – somehow you leap right over this and incorrectly assume the explanation given was not a true explanation. Further, you did this without (apparently) even noticing that you were doing this.

              You are trying to hard to find something not there. You are obsessing over this.

              Another symptom that you might want to share with your doctor.

              symptoms are not conditions. ” – You also appear to be obsessing over unimportant semantics. Hey, you really shouldn’t try to bite my head off as I am only trying to help you. What’s up with that?

            12. It’s like talking to a 5 year old with you. It really is.

              I’m not trying to portray you negatively by showing how your behaviors align with symptoms of two CONDITIONS that are serious CONDITIONS. And come on man your audience here is a somewhat educated bunch, nobody here thinks less of you for having a couple mental disorders (MM maybe excluded since you’re an arse to him about it all the time). They’ll simply arrange their affairs accordingly to mitigate the effect your behaviors have on discussions. And that’s fine.

              BTW, you don’t have to think in black/white, good/bad, positive/negative all the time. People can and do see most other folks as grey and I promise they’ll see you as grey even if they know of your conditions.

              But look if it makes you happy to make an arse of yourself crowing about random supposed “symptoms” of no conditions that you think I may have then ok. Have fun with that. I just wanted to make sure that you understood that you look like person that doesn’t know sht about psychology every time you do so. I’m just going to go ahead and answer all your future reference to random “symptoms” with one statement:

              Ok, let’s say I do display that “symptom”. Since the supposed “symptom” isn’t associated with any conditions me and any docs I have will be wholly unconcerned about displaying that “symptom”.

              Also just to help you out with some psychology, in order for something to even be a symptom, it has to have a condition associated with it. For example, preoccupation with rules is a symptom because people with OCPD display it when they have OCPD. Mere “projecting” isn’t a “symptom” of any known conditions according to the interbuts and thus isn’t a “symptom” at all. It’s just an act or technique.

              In any event, enough talking psychology. I gave you a little break for this post, but I’m going to have to cut ya off for a few weeks brosef. For your good and mine. Try to reflect on the actual conditions pscyhopathy and OCPD in the meantime. Maybe try to think how a person with either or both of those conditions would post in threads like these. Then maybe compare your predictions to your own posts. Just for fun you know.

            13. Here, I’ll leave you with a great fact sheet:

              link to ocfoundation.org

              Turns out I was right about therapy being of great use for this condition! That’s great news, I was afraid it was untreatable until I read that. It is too bad that it takes practically the loss of a job or a marriage to get folks into counseling though.

            14. behaviors align with symptoms of two CONDITIONS that are serious CONDITIONS

              First you make a stink about symptoms and conditions, then you turn around and say that the symptoms of conditions are conditions….

              Make up your mind as to how you are going to treat these words.

              (and you call me the fiver year old… geesh)

            15. “First you make a stink about symptoms and conditions, then you turn around and say that the symptoms of conditions are conditions”

              Alright I’ll take a moment to clarify for you since it’s along the lines of what we were discussing yesterday regarding your conditions. And since you’re obviously now getting a grasp on the correct use of the words even though you’re getting confused because of my drafting of the last comment.

              To be clear I was not saying that “symptoms” of conditions are conditions themselves. I would never say that and will never say that. For example, I’m certainly not saying a rough patch of skin on your back is the disease Shingles (aka the condition of having an infection with herpes zoster virus). A rough patch of skin on your back is a symptom. One disease that will cause that symptom is called Shingles and that disease is the condition of having a viral infection of the herpes zoster virus live in your body. Though yes, the way my comment was typed is confusing if you are an ignoramus about these things from the get go. Apologies for not writing it on the kindergarten level for you. I will try to hold your hand a little better in the future.

              What I actually was saying was that I am not trying to negatively portray you by showing how your behaviors align with symptoms of identified conditions. Period should go right there for newbies to medicine. And then I’m further saying that those conditions (psychopathy and OCPD) are serious conditions because they are serious, as in, significant. Emphasis on serious in the phrase “serious conditions”.

              And to be clear, how I’m “treating” the words has nothing to do with anything, I’m using the terms as people in the medical field do. I just confirmed that the dictionary uses them the same way. If you on the other hand want to make up some new definitions for the words then ok. Go ahead.

            16. Alright I’ll take a moment to clarify for you since it’s along the lines of what we were discussing yesterday regarding your conditions

              You mean your symptoms, 6 – you are doing that projecting thing again.

              (and pretty sure that your words at 49.5.2.1.3.14 are exactly as I copied them into my post – yup still the same)

    6. “On this board I cannot make a substantive argument without being blasted by the paid bloggers and extremist. Just read this string of posts. I also am regularly threatened with retribution outside of this board. They have also posted using my handle. They have in effect done everything they can to try and silence me.”

      LOL WUT? Who threatened you with retribution? Who gives a dam if someone has posted with your handle? And trust me, we other posters haven’t done everything we can to try to silence you. The easiest thing for us to do is simply inundate D with requests to do so via email. I haven’t even sent him one.

      “That is what I have to deal with.”

      Awww, in 5+ years of posting someone, like once or something, offhandedly threatened you outside the board ON THE INTERBUTS? NO WAI! Did they tell you they were totally going to kick your ass irl? Awww. So mean! Someone used your handle? Awww, that’s TERRIBLE! All that after 5+ years of spreading your particular brand of hate on the interbuts and you’re suprised? Frankly I’m surprised that there hasn’t been additional blow back on ya. But you’re old, so that explains why.

      1. >>spreading your particular brand of hate

        What hate to I spread? I spread knowledge. My influence is always positive. I know I have helped shape you. You are still teetering on the dark side, but I am sure you will come around before it is too late.

        1. And seriously “hate”? Come on. I poke the great and powerful, but then they should be able to handle it. I generally use kid gloves on the rest of you.

        2. “What hate to I spread?”

          Are you shting me? Here you’ve been spreading hate for like years on years and you never even noticed that was what you were doing? You’re that oblivious? Like every other posting session you’re spreading at least some hate. Whether it be your “off your rocker” rants about Lemley et al. (what this whole thread is about) and how bad they are for disagreeing with you and advocating something different, or your constantly calling MM an APE or whatever your newest thing is, or bashing on anyone that has anything negative to say about any patent (also known to you as “anti-patent” people) or the federal circuit’s “patent system” that they’ve erected over the last 40 years.

          “I spread knowledge.”

          Yeah well that ain’t how other people receive your posts. I know I know, you’re probably not the most socially adept person ever. Even so, come on man, even someone as socially thick as you should be able to tell that others aren’t quite receiving your posts as mere “knowledge” spread. That much is certain.

          But in so far as you actually do “spread knowledge” it appears to me, and likely to others, that you do the lion’s share of “spreading knowledge” in an attempt to make other people kowtow to your views of how the patent system should operate. And that’s fine, especially for a lawyer, that’s what lawyers do in their day job. They tell the judge how other judges have ruled and ask them to do the same. But don’t expect 0 blowback for attempting that approach outside a courtroom to average people. Especially not when you’re tossing in a side order of hate. People are allowed to advocate for legal positions outside those taken by previous courts or those you desire. All your “spreading of knowledge” will never change that.

          “My influence is always positive. ”

          LOL WUT?

          “I know I have helped shape you.”

          Oh indeed, but as you’re about to say, I’m still on the “dark side”.

          While we’re on the subject, I’ll be honest with you NWPA, one of the biggest reasons I’m still on the “dark side” is that, just like you accuse the “anti’s” of being, you guys aren’t exactly straightforward with your reasoning to back your positions. You could just come right out and say “hey, we want patents on software, and in order to accommodate that we need functional claiming etc. etc.” and to get that we’re going to play around with words like “structure”, “machine”, “machine component”, “equivalence” etc. etc.. Instead, you guys have come in through a backdoor left open by the CAFC and established yourselves, and then say “ney ney, now we have stare decisis, the PTO, all these decisions and the CAFC backing us”. I can respect the position that you want software patents and/or that software needs “protection” for its functionality for business reasons, and that we’d need to give you functional claiming for meaningful coverage thereof. I can respect the positions that if we’re going to go down that road we may as well open patents up to signals and not invalidate patents as ineligible when the algorithm can be done by hand. But I cannot respect how you guys went about getting software patents issued. And that is why I’m still on the dark side and will remain there until this is all done legitimately. Either by getting congress to add software the big 4 categories, or giving you guys a whole new software function entitlement program outside the patent system.

          The other big reason is people like you, anon, Gene, EG, etc. etc. making arses of yourselves when people analyze and subsequently ridicule or act to overturn what you’ve done and continue to advocate for.

          1. I’ll be honest with you NWPA, one of the biggest reasons I’m still on the “dark side” is that, just like you accuse the “anti’s” of being, you guys aren’t exactly straightforward with your reasoning to back your positions”

            6 ‘logic’ FAIL – one of the biggest reasons you are on the side of the anti’s is because the other side uses the same tactics (in your mind)?

            You really don’t understand how the entire law system runs, do you?

            1. LOL – that’s just his nature 6 – once you understand that he wants to have an honest – an intellectually honest – discussion on the matter (which necessarily involves the acceptance of baseline facts – and the proper understanding of how law and changes in law in particular fields are set up to work), then and only then will you be able to understand why he may feel as he feels.

              For all of your projections of psychopathy, your inability to understand these basic things – facts, laws, and emotions – really makes clear that you are mired in your “beliefs” and your gimmicks are rather threadbare.

              You mistake his passion and anger for something inherently bad. If you were to realize just how base the gamesmanship is, you might be able to cut him a bit more slack.

            2. “LOL – that’s just his nature 6″

              Yes. Just like your nature is psychopathic. I agree. Entirely.

              But there’s going to be some blow back for his letting his nature get the better of him, just as there sometimes is for you letting your psychopathic nature get the better of you.

              “then and only then will you be able to understand why he may feel as he feels.”

              I understand quite well how he feels. Neither his feelings or my understanding thereof is an excuse for his behavior. Just like your feelings or my understanding thereof is an excuse for your behavior.

              “You mistake his passion and anger for something inherently bad.”

              Idk about “bad”. But your inability to understand my thoughts or feelings on the matter don’t surprise me. At all. Mr. pscyhopath.

              “you might be able to cut him a bit more slack.”

              I cut him and you quite a bit of slack. As I’ve noted, I don’t inundate, or encourage others to inundate, D’s email with requests to ban either of you. For literally years I’ve been cutting you guys this slack.

            3. When you spin something so that it no longer is what I said, then you say “ I agree. Entirely.” you have added nothing but a fallacy.

              Try again.

          2. *applause*

            Props to you, Mr. 6. You have no hope of making a dent in their belief system, but I sure enjoyed your standing up to the bullies, and telling it like it is wrt patenting software.

            Stay with the “dark side”. The justices have to wake up sometime.

            1. Dobu,

              I laugh at the company you keep and what you consider to be a ‘champion’ of your cause.

              The fact that you are oblivious as to how bad your position is, is downright priceless.

            2. That’s okay, Anon. I knew disagreeing with you would subject me to your mocking derision.

              Lord knows there was sufficient precedence.

              Hence my words of encouragement for 6. :^)

            3. No amount of my mocking derision is more effective than your willingness to cling to 6 as your champion in law.

              The fact that you cannot see this only confirms how poorly your choices are.

    7. “Software has no structure,” is a statement to burn the system down.

      More like a statement that, if accepted as accurate, may impact the ability of software “innovators” to rely on patent law for broad protection of their “new” machines.

      Many reasonable people believe that getting functionally-claimed computer-implemented junk out of the patent system will improve the system overall. For some reason, people who love functionally-claimed computer-implemented junk generally disagree.

      But we all know the end result already. At least, those of us who’ve been thinking about this for a long time certainly know the end result.

      1. if accepted as accurate,

        If?

        Except it is not accurate.

        Period.

        You may as well try to get used to the reality here on planet Earth.

        1. “If?

          Except it is not accurate.

          Period.

          You may as well try to get used to the reality here on planet Earth.”

          I for one would like to see dueling expert decs on the subject. Evidence weighed. Sht like that. Rather than a court just making up which ever way they want to rule out of thin air.

          1. LOL – this is not something that ‘dueling experts’ decide, 6.

            These are baseline facts of this reality.

            Courts do not decide reality. Courts do not write patent law – they apply patent law to reality. Until you understand this – until you realize just how vapid your “all in the mind subjective and thus anything goes” CRP is, you will continue to struggle to understand the basics. You will continue to blithely march up lemming hill.

            1. “Courts do not decide reality”

              They do make factual findings though, on occasion. Especially when facts are in dispute between the parties. Indeed, every now and again they toss that question to this thing called a “jury”.

  13. Ned, you don’t like me because I tell everyone you are a paid blogger, which you are. No substantive debate. Let’s see go back and look at the Monsanto thread. There I exactly predicted the argument the SCOTUS would use and explained in detail why. And, in fact, the substance of the debate on this thread I keep trying to bring up but I am blasted with insults by you and the professor.

    Look at his post. He started characterizing me as bashing. He hasn’t addressed the substance of my arguments on functional claiming, structure in software, the Lourie absurd paper and pencil test, etc. The fact is Ned that I am all substance and disappoint myself when I address your and your ilk’s constant verbal abuse.

    The reason these debates are becoming so pitched is that the anti’s are getting their way and burning the system down with their specious arguments.

    And, Ned, you are paid to blog on here. Aren’t you?!!!!

  14. (Once again) several facts that I invite Prof. Sichelman to ‘comment’ upon

    (you rather dodged these – even as you managed to count upwards of well over 5,000 words – these facts merely require – at least if you want to briefly establish these on the record – a mere one word notation of each):

    1) Software is a manufacture and machine component, made by man for a utilitarian purpose.

    2) Upgrading a machine with the introduction of new software creates an improved machine.

    3) Software is equivalent to firmware and is equivalent to hardware.

    Come professor, venture outside of that Ivory Tower and confirm (or deny) these facts.

    Your silence screams volumes – more so than the rest of the 5,000 plus words.

    1. Your silence screams volumes

      Indeed. It screams “I don’t want to engage in a discussion with a nutcase. I’ve seen what happens.”

      1. Lol – tell us Malcolm, what happens when you are shown as the fraud that you are?

        Your AOOTWMD days are numbered my friend. Your days of intellectual dishonesty and complete lack of ethics are drawing to a close. Enjoy your last fifteen minutes of the spotlight.

  15. I appreciate the additional comments, at least the substantive ones. Below, I do my best to respond to some of the remaining comments and questions. (As anyone reading much of the commentary can see, I’ve probably written well over 5,000 words between this post and my comments, so this will likely be my last lengthy comment.)

    1. “Burning Down the Patent System”: Neither Lemley nor I are trying to “burn down” the patent system. Read our article, Life After Bilski, for example. Read my article, Commercializing Patents. Read my article and Patently-O post on Federal Circuit reversal rates, Myths of (Un)Certainty at the Federal Circuit.

    2. The Academic Guild?: Yes, I’ve defended academics in this post, because the analysis and criticism lodged by Wegner and others ranges from misguided to deluded. In that regard, I don’t defend Lemley (or other academics) at every turn. As Lemely has mentioned to me, I often make “a living” out of disagreeing with him. See my articles, Commercializing Patents, Purging Patent Law of “Private Law” Remedies, and several others, where I strongly criticize a number of his views and works. Despite my disagreements–and those of other academics–he is clearly highly qualified (and, I’ll reiterate, uniquely qualified) to opine on patent law policy.

    3. Patent Reform Proposal Politics: I agree with Derek’s comment that reform proposals should come from many quarters, including litigators, prosecutors, economists, engineers, lay persons, and yes, academics. Nobody should have a “monopoly” on the policy process. But academics, on the whole, should clearly be at the table. We spend most of our time thinking and writing about policy issues. I agree that practical experience helps lead to better proposals, but prosecution experience alone is neither sufficient nor necessary for devising sound proposals. Rather, input from multiple actors with a variety of experience is essential for the best proposals. However, contrary to Wegner and others, one need not have tenured or tenure-track professors on a specific faculty for such input. Rather, it may come from others who review and comment on articles, and emerge as part of the refinement process when any policy proposal is made, whether by an academic or otherwise.

    4. Functional Claiming: Section 112(f) makes the use of functional language optional, but once it is used, that section limits its construction to disclosed structure, material, or acts and equivalents. Haliburton previously prohibited the use of functional language at the point of novelty in a combination claim. (And combination claims were recently reaffirmed as a class of claims in KSR.) When I stated “putting Haliburton aside,” I intended to drive the discussion in the direction of policy not doctrine (of course, I know Haliburton was effectively overruled via 112(f), formerly 112p.6 in the 1952 Act). The main counterargument offered to the proposal I made earlier (a variant of Lemley’s) is that functional language at the point of novelty would be limited to disclosed structures is that it would unduly lengthen specifications and/or claims. (In that regard, claims are certainly not interpreted as a whole. Rather, claims are interpreted element-by-element, term-by-term.) No empirical evidence is offered regarding this assertion of undue spec/claim length. In fact, if one examines the number of applications filed between Haliburton and the 1952 Act, it’s roughly 70,000 per year, about the same number filed before and after Haliburton. Of course, the real question is how the specifications and claims changed in that period, and empirical study on that score would be particularly useful. In the meantime, without additional evidence, or convincing examples, I don’t see how limiting functional language at the point of novelty would be unduly burdensome. (Though I do view ratcheting enablement up as another option, and I have read LizardTech, which is not terribly helpful in my view.) Yes, my proposal is more burdensome, but I’d be interested to hear cogent arguments on why it would be unduly so.

    As for software specifically, yes, software running on a computer is a “machine” in a general sense. But that’s more of a 101 issue than a 112(f) issue. Non-computational machines can of course be claimed in functional terms–and when those claim elements are at the point of novelty, whether we’re talking on old fashioned typewriter or newfangled computer, the question is whether those functional terms should be given an expansive interpretation or not. If not, how limiting should it be? At the end of the day, I don’t see the machine aspects of computer playing much of a role in this determination–granted, it’s “structure,” but structure that is too low level a concern for most software claims, even if limited to that which is disclosed. By structure in software claims, take an element that states “whereby the audio file is analyzed to determine is spectral properties.” We shouldn’t care what hardware in the computer might perform that function per se, but we might want to limit that element to the specific analysis disclosed in the specification if indeed that is the exact point of novelty in the claim. Presumably, enablement should do that job, but given how weak that doctrine has become in practice, another useful approach might be via 112(f), or a modified version thereof.

    5. Patents as “Rights to Exclude”: One commenter believes I don’t understand that “patents are rights to exclude,” because (in another post) I suggest precluding injunctions in certain cases even for practicing entities. The view that patents necessarily lead to injunctive relief was rejected in eBay, and although I do not believe that NPEs should necessarily be denied injunctive relief, I do agree with the more general view of eBay that rights and remedies are distinct and that injunctions should not issue as a matter of course. If you want to assert that eBay is somehow unconstitutional, go try arguing that in court, and you’ll likely be thrown in the same basket as those arguing personal taxes are unconstitutional. Rather, the important question is when injunctions should and shouldn’t issue. I addressed that in part in Purging Patent Law of “Private Law” Remedies, and many other academics have done similarly, but much more work needs to be done on that front.

    6. Conclusory Arguments: Many of the comments here are simply conclusory arguments with little to no support. In other words, they smack of “because I said so” logic, which does little to advance the discussion.

    7. Anonymity: I simply don’t see how practicing patent law explains anonymity on these blog comments. I’ve organized many conferences and numerous practitioners have participated and have taken specific stances on patent law issues that may be against some of their clients’ interests. Practitioners do the same in articles and journals. Given the brashness of the claims in these comments–e.g., “I understand patent law much better than you”–and the clearly significant interest in patent law policy of many commenters, it seems many of you would gain more credibility by simply coming forward and making yourself known. It would also allow others to evaluate your credentials–and potential bias–which many of you seem so wont to discuss with those who post articles on this blog. And, perhaps, it would make the discussion more cordial, an item I turn to next.

    8. Ad hominem attacks: Several of you have argued that your ad hominem attacks help your cause and that my arguments necessarily give your arguments “teeth.” Other than the entertainment value, my general view is that this sort of language does little to engender useful discussion, but obviously I can’t convince many (if any) of you of that. However, I have one suggestion to resolve the issue–how about a poll among readers to see what they think about this sort of “carpet bombing” approach? In my opinion, it would be nice to a more substantively focused discussion on Patently-O. I wonder what others think.

    In summary, I’m thankful for the opportunity to post on this widely read blog, and I enjoyed reading many of the comments. However, a good number were simply ad hominem attacks or contained purely conclusory logic. Hopefully, those commenters will focus on the substance of the arguments going forward. In the meantime, feel free to dig into me as you see fit.

      1. The less substantive ones like the “I can’t see” non-answer to anonymity/pseudonymityand the strawman position of “well,some people are ok using their real names” which does not speak at all to the fact that anonymity/pseudonymity is a valid mechanism…

        …not so much.

        (in other words, thanks for nothing on that point – see your own comment 6).

      2. I guess Dennis. From my perspective what I see is the patent system being burnt down with absurd positions that have nothing to do with reality.

        You know, I think a real professor of patent law, would be saying right now something like the following. We just passed the AIA. There are massive changes with the post-grant reviews. Let’s wait a year or two and see how that pans out before doing any more reforms. Maybe concentrate on something less radical like reforming local rules.

        It is just very hard for me to consider these people scholars. They don’t seem that way to me.

    1. Section 112(f) makes the use of functional language optional, but once it is used, that section limits its construction to disclosed structure, material, or acts and equivalents.

      Sorry Professor – this is simply false.

      This is simply not an accurate construction of the permissive language in any way shape or form.

      1. “Section 112(f) makes the use of functional language optional, but once it is used, that section limits its construction to disclosed structure, material, or acts and equivalents.”

        Ted, like many others, does not appear to understand that “functional language” is not confined to the means-plus-function format covered by 112(f).

        I don’t understand why such a basic concept in patent law is so widely misunderstood.

        1. The scary thing is that he maintains this belief after being informed otherwise – and he is a “professor,” no doubt spreading this incorrect “theology” to anyone caught in his web.

        2. Let’s all look at the language:

          112(f) Element in Claim for a Combination.— An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof <— plainly refers to the claim language; no controversy there.

          such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents <— here's what Ted wrote: "that section limits construction to disclosed structure, material, or acts and equivalents"

          In response, David Stein and Tr0llb0y seemed to suggest that Ted was being dishonest or is unbelievably st00pit when he described 112(f). But they don't explain why they came to this conclusion. Did their fingers get sooper dooper tired all of a sudden? Because if it's so obvious to them it must be really really easy to explain to everybody. Right, David Stein? If not, then maybe pour yourself a beer and try to spit the words out, rather than insults. We know that Tr0llb0y can't do that. But maybe you can. Here's your chance to educate everybody, David, and prove to the world that academics like Ted are just ignorant "ivory tower" types. At least compared to you.

          So go ahead.

          1. seem to suggest

            Clearly no need for such weasel words. What I “suggest” is more than clear – Professor Sichelman is flat out wrong.

    2. Ted, thanks for your comments. Just one more from me on functional claiming: Rich was of the view that §112, paragraph 3 when enacted, effectively enacted the rule of Westinghouse v. Boyden Power Brake , that had construed a functionally defined structure to cover corresponding structure recited in the specification and equivalents thereof in order to preserve the validity of the claim – the assumption being that the claim would be invalid otherwise. In fact Westinghouse was a general rule of construction prior to ’52, and long after, regarding functional claims. At some point in time, probably when the Federal Circuit took over, the citation to Westinghouse was abandoned. It is not even mentioned for example in Phillips.

      The probable reason that Westinghouse was no longer the rule with regard a functional claims was because the CCPA and the Federal Circuit both attacked the doctrine that functional claiming was improper. Cases such as In re Swinehart (CCPA) effectively held that functional claiming did not “per se” invalidate the patent, never analyzing whether the functional definition was at the point of novelty or not. The assumption being, of course, that Halliburton was completely overruled.

      Because functional claiming no longer invalidated a patent, there no longer was reason to limit a functional claim to the corresponding structure and equivalents to preserve its validity.

      Compounding this, the Federal Circuit adopted the view that the invocation of §112(f) was intentional, therefore if one did not use the magic words, that statute was not invoked. This “doctrine” has resulted in the absurdity that if one does not use the magic words, but simply claims structure functionally, one could completely avoid both §112(f) and Westinghouse.

      Of course, we got to the state because the Supreme Court has not taken a case involving functional claiming since Halliburton . But Nautilus is now before the Supreme Court and it was allowed in re-examination because of a functional limitation. But as one can see from reading the briefs, whether the Supreme Court addresses that case as a functional claiming case or not has yet to be determined. The government brief on this point is completely unhelpful, acting as if functional claiming was not a legal problem, essentially ignoring all the Supreme Court cases to the contrary.

    3. Awesome comment, Ted. And it doesn’t matter to me, personally, whether a comment like yours is anonymous or not. Why would it? As for this:

      I’ve organized many conferences and numerous practitioners have participated and have taken specific stances on patent law issues that may be against some of their clients’ interests.

      Indeed. But many (most?) practitioners never do so. And a great many practitioners are busy prosecuting and enforcing their own applications. And there’s the vast majority of people who aren’t interested in making a living out of obtaining and enforcing patents but are concerned about (1) the increased risks presented to them by a broken or severely compromised patent examination system; and (2) a deeply invested class of individuals intent on keeping the system as dysfunctional as possible so they can obtain their “presumed valid” right to sue people.

      We’ve had commenters show up here and suggest that various “anti-patent” views and positions were taken because of some ownership interest in this or that company, where the company is also “anti-patent” or seeking to “steal” the intellectual property rights of others. I’m sure right now there are people 100% certain that such “interests” are what drives you to say the things that you do.

      It sounds crazy but then you have to remember that for a lot of people the only reason to live in America is that there are opportunities here to make boatloads of money hand over fist without getting a callous on their palms. All you need to begin is some money, which lawyers tend to accumulate quite early in their careers (particularly when it’s a family business).

      The primary reason many of the pro-trolling types choose to remain anonymous, of course, is the same reason that they are so vehemently opposed to efforts to make patent ownership more transparent. They don’t want the public (including academia) to know the extent to which they are exploiting weaknesses in the system for their own benefit at the expense of everyone else. Meanwhile, they have a very active propoganda machine in place where they regularly publish their objections to all regulatory/reform efforts in addition to endless self-serving silliness (“every patent creates a job”; “patent reform efforts are destroying the middle class”; “supporters of stricter subject matter eligibility laws are anti-patent communists who hate personal property” etc. etc. etc.).

      One secondary reason is that the last thing the pro-trolling types want is for people to able to easily document their activities on the Internet and elsewhere and compare those activities with the oh-so-principled positions they take here, where everyone else is a thief or incompetent or a liar, and how dare anyone suggest that what they are doing is anything but exercising the rights given to them by the beloved mythical version of “the Founders” they ceaselessly invoke.

      What we need here, Ted, is more people like you commenting regularly (anonymously or not). When that doesn’t happen, the comments simply end up becoming just another echo chamber where the same people (literally: the same people) endlessly trash anyone who supports or proposes any reform efforts or any decisions that tighten patent law in any way with the same recycled insults, ad hominems and paranoid absurdities. Does the Internet really need another one of those? I don’t think so.

      1. LOL – the prime echo chamber of the Anti’s – the RQ/HD has so decreed.

        Better yet Malcolm, provide some facts to pound, provide some law to pound.

    4. Ted,

      “In fact, before becoming a law professor, in addition to practicing patent litigation for four years, I founded three tech companies, raising nearly $5 million in financing, including being CEO of Unified Dispatch, a software company that makes innovative speech recognition systems for ground transportation companies.

      I took a look a your cv listed at the San Diego Law School web site. I see that, after getting your AB in Philosophy at Stanford (my BA is in Chemistry from Carleton College), you got an M.S. in Physics from Florida State University, which does impress me. But I’m curious: why no mention in your cv of your “4 years of litigation experience” or the “founding of 3 tech companies”? What’s the problem with mentioning in your cv such “real experience.” I’ll give a you a fair chance to respond to my questions.

      BTW, I’ve got almost 37 years of “real practice” experience, almost equally divided between corporate and private firm. Plus I’m not unfamiliar with academia, having written (or co-written) 8 law review articles on various patent law topics, plus around 100 other articles on various IP topics, primarily patent law, for various publications and patent blogs. And all of that significant experience is listed on my cv/resume.

      1. Eric Guttag, do you mention on your resume that you advocated for impeaching judges who used the word “monopoly” in the context of discussing patent rights?

        Or is that something you are embarassed about and regret? Because dang it was really incredibly st00pit and you surely realize that.

      2. Plus I’m not unfamiliar with academia, having written (or co-written) 8 law review articles on various patent law topics

        But you’ve never been tenured or even worked half-time at any university, correct?

        How dare you claim to be familiar with academia!

        Seriously, Eric: spare everybody.

        1. Once more Malcolm, what you think, believe, or say doesn’t count for squat with me and many who post on this blog. Over and out again.

            1. EG, he does not understand anything short of a poke in the eye.

              It is not too hard to do this, as he typically has something truly vapid to say that can be whittled easily into a sharp stick with which to poke him back with.

          1. Eric Guttag: what you think, believe, or say doesn’t count for squat with me

            That’s nice, Eric.

            But we were talking about what you believe and say. If you’re unwilling to retract or disavow your statements, then I guess you’ll have to live with them, won’t you?

            Enjoy.

            1. That angst you sense EG should not be confused with any sense of conscience or ethical twangs.

              That’s just Malcolm going into spasms as I poke him in the eye.

    5. However, I have one suggestion to resolve the issue–how about a poll among readers to see what they think about this sort of “carpet bombing” approach? In my opinion, it would be nice to a more substantively focused discussion on Patently-O. I wonder what others think.

      Awhile back I was personally asked by Prof. Crouch how to make this blog better, and I suggested a muzzle on the carpet bombing and the purposeful spin of what others say, of deliberate misrepresentations of facts and of law that certain posters (chief among them Malcolm Mooney) are famous for. I advocated for intellectual honesty in posting (to make sure that plainly fraudulent spinning of what others say, what are given facts, and what is established law be treated with respect. I was told by a certain Malcolm Mooney that since this is a blog, intellectual honesty is not required here. I was told by 6 (another regular poster) that law is “subjective entirely in the mind” and thus gamesmanship and ‘whatever’ goes.

      I also advocated that shilling be shelved, and was the first to affirm that my posts are truly of my personal view and are not shilling in any sense. I pointed out that the rules of the blog call out for ONLY personal comments. Certain other posters certainly post as advocates – paid advocates. This has an immediate and harmful effect of conversations which should continue to their logical conclusions being run away from or threads purposefully carpet-bombed with a small and highly repetitive script of CRP.

      I have also pointed out that Malcolm’s obsession (Gene Quinn at IPWatchdog) polices his site and will ban those who engage in excessive (and unwarranted) ad hominem and repeated (after given warnings) misrepresentations of law.

      Read these columns for a little while Prof. Sichelman, and you will see exactly who has the problem with responsible posting. Read these columns for a little while and see that it is the anti-patent crowd that cannot abide for anything even remotely in line with your suggested poll.

      1. deliberate misrepresentations of facts and of law that certain posters (chief among them Malcolm Mooney) are famous for

        I’m not “famous” for anything, Tr0llb0y. I’m just a commenter on a blog who happened to understand the issues in Prometheus v. Mayo and explained them in terms that everybody could understand. I doubt I was the first to do that but I surely did it and I’m sure that people read what I wrote and understood me. What’s “famous” are the reactions of Kevin Noonan and Gene Quinn to those explanations and, to a lesser extant, the failure of certain other commenters to acknowledge those issues in a similarly plain fashion.

        And that exposed something about the entire system that was obvious to a lot of us who were working within the system but which (like a lot things) people working within the system weren’t supposed to talk about.

        As Dennis has pointed out, that’s the beauty of anonymous commenting: the whistleblowing aspect. There’s really nothing interesting at all, on the other hand, about rich, entitled greedy people people complaining that they aren’t getting everything they want. You can find that commentary anywhere. Heck, as we’ve all seen already, a lot of those rich, entitled greedy people are so unaware of how they might be perceived by the public at large or by people that they regularly say all kinds of incredibly outrageous things (I’m sure you weren’t the first person to compare critics of aspects of the patent system to “the Gestapo” for instance).

        I was told by a certain Malcolm Mooney that since this is a blog, intellectual honesty is not required here.

        Can you remember the exact quote and the context? Because as I recall the issue was your desire to equate commenting here with the filing of legal briefs. That’s a nutcase belief. And I believe that was the point I was making when I made the comment which you seem to have seized upon and mutilated like a rabid, mindless junkyard dog.

        [Gene Quinn at IPWatchdog] polices his site and will ban those who engage in excessive (and unwarranted) ad hominem and repeated (after given warnings) misrepresentations of law.

        Quinn will ban anyone who dares to call Quinn out on his horseshirt. And he spews a lot of horseshirt. And he gets called on it. And he doesn’t like it. So he bans people. That’s what happens.

        Dennis has put up with 100,000 times more b.s. from you than Quinn would ever put up so wherever you’re heading with this garbage, you’d best just forget it and try another approach. I’d recommend just spending your time at Quinn’s blog, where you are much loved and your views are amplified on a daily basis. Why is that not enough for you? Why do you have to spend so much time here insulting people who disagree with you, simply because they disagree with you?

        1. >>Quinn will ban anyone who dares to call Quinn out on his horseshirt. >>And he spews a lot of horseshirt.

          No. Quinn will ban anyone that spouts nonsense with no facts or law to back it up. So, in others, people like you MM.

      2. “I was told by 6 (another regular poster) that law is “subjective entirely in the mind” and thus gamesmanship and ‘whatever’ goes.”

        Pretty sure you’re not doing a good job paraphrasing what I actually said. And you’re even pretending to quote me to boot. But I’m sure that what you’re stating now is what you managed to take from what I actually wrote. But then, you’re a psychopath, so I don’t expect any better, and it’s ok, I don’t hold you responsible for the physical failures of your brain.

        ” This has an immediate and harmful effect of conversations which should continue to their logical conclusions being run away from or threads purposefully carpet-bombed with a small and highly repetitive script of CRP.”

        And of course they “should” continue (aka “are obliged to” continue) because poster anon fancies himself in control of the conversation. Or at least he’d sure like to be. He just doesn’t have the social skills to understand how conversations are allowed to go. Or how the conversations are wholly outside of his control because the people are outside his control.

        He’s starting to get a handle on the whole situation. But he’s still in the beginning stages.

        1. He just doesn’t have the social skills to understand how conversations are allowed to go.

          6, dueling soapboxes is not a conversation.

          What you think are “social skills” are not.

          And you quite miss the point that I am responding in kind to Prof. Sichelman’s viewpoint – or are you now going to grow up, realize that he too called for “control,” and start accusing him of being psychotic?

          1. I am responding in kind to Prof. Sichelman’s viewpoint

            Nobody believes that, Tr0llb0y, except you and a couple other nutcases who are prone to spewing nutcase garbage like you.

          2. “6, dueling soapboxes is not a conversation.”

            Hmmm, idk if I disagree or agree, strictly speaking. Because strictly speaking I’d probably disagree, as dueling soapboxes can be “an informal talk involving two people or a small group of people”. But sure, I take your meaning.

            Either way, you can substitute “people on dueling soapboxes are allowed to speak” for “conversations are allowed to go” in my comment above and it makes little difference in what I was saying.

            “And you quite miss the point that I am responding in kind to Prof. Sichelman’s viewpoint – or are you now going to grow up, realize that he too called for “control,” and start accusing him of being psychotic?”

            Responding in kind to his “viewpoint”? You came right out and asserted, with little or no evidence, that some people are paid posters. How that is a response to his “viewpoint” I’m not exactly seeing since he didn’t espouse a view on paid posters.

            In either event, he may have called for “control” of a sort but he did not call for himself to be put in control of others with whom he is currently having interpersonal interactions with. If you think he did, then please point it out for us. There’s a difference between calling for what he did and interpersonal control.

            That’s a difference that you’re not picking up on because you don’t have a psychopathic specimen for you to observe so that you can understand what “interpersonal control” means. If you had one you’d see quite quickly the difference between just plain ol “control” of this that or the other and “interpersonal control” of individuals with whom you’re interacting. On the other hand, we other posters have a specimen. That specimen is you. But you don’t see anything wrong with your behavior, as per usual with psychopaths, so you can’t really take a critical eye to your own behavior. You have now even gone so far as to start picking out when you see other people trying to “control” the definitions of words or base civility on a blog, or at least picking out when that appears to you to be happening. And then you compare that to what you do as if they’re nearly or exactly the same. I understand that you have trouble understanding your own condition, it’s difficult to understand. But you don’t have to attempt to make excuses for your behavior drawing from the ordinary activity of others. All the excuses in the world, and all the behavior of non-psychopathic people in the world, will never be excuse for what you do.

            1. Hmmm, idk if I disagree or agree, strictly speaking.

              That was a factual statement – you do not get to “disagree” with facts.

              Your backpeddling beyond that is only slightly amusing.

            2. “you do not get to “disagree” with facts.”

              I forgot I cannot disagree with “facts” as patent jebus finds them to be. And since patent jebus is here I do not get to “disagree” with facts.

              I don’t suppose the definition of the word conversation factors into this tit for tat at all does it re re?

            3. “facts” as patent jebus finds them to be.

              (sigh) – again 6, these are not facts because I find them so. They are facts because they are facts. You seem to want to give me more power than I have, and then turn around and somehow claim that I am the person claiming such power. You are projecting a fallacy even as I point out to you the fallacy you are engaged in.

              The word “conversation” does not – and cannot change facts. This is yet another sign of your malady of thinking that all of this is “subjective in the mind make up anything you want.” It just is not so. There are real world objective things that you do not get to make up as you want them to be and call it ‘conversation.’ That is not what conversation means.

            4. “You seem to want to give me more power than I have, and then turn around and somehow claim that I am the person claiming such power.”

              I’m just parodying your hilarious “power” grabs. But I know, I know, such is lost on you.

              As to the rest of what you just said it’s just another hilarious example of why most folks don’t even want to interact with you. Discussing anything with you is worse that discussing it with a 5 year old. You don’t understand what is even being talked about, you harp on individual words that you don’t know the meaning of, just on and on and on the nonsense goes.

              I’m through talking to ya for another good long while alrighty? I was giving you another shot these last few days since you’ve cleaned up your act somewhat. But you just can’t resist derailing the conversation about x off into a b c irrelevant nonsense. You’ve done that for several of the last topics we’ve had a tit for tat over. I’m not interested in discussing what “conversation” means with your dumbas.

            5. I’m just parodying

              LOL – sure, um, yeah, let’s go with that.

              /eyeroll

              As to the rest of what you just said it’s just another hilarious example of why most folks don’t even want to interact with you.

              LOL – another, yeah sure – the translation is: anon is right and 6 cannot spin his way out of this conclusion. There are things in this world that really are objective and not up to 6 and his “subjective in the mind make up whatever he wants” view. 6 cannot ‘win’ when he loses the power to just make things up to be whatever he wants them to be.

              Good conversation 6 – try just be honest about the results.

    6. 1. Lemley’s arguments betray his intent. “Software has no structure,” is a statement to burn the system down. His functional claiming paper is a paper that mischaracterizes functional claiming, which I believe illustrates that he has an intent to burn the system down.

      2. Complete dodge of the substance.

      3. Complete dodge of the substance.

      4. The professor writes: “We shouldn’t care what hardware in the computer might perform that function per se, but we might want to limit that element to the specific analysis disclosed in the specification if indeed that is the exact point of novelty in the claim. Presumably, enablement should do that job, but given how weak that doctrine has become in practice, another useful approach might be via 112(f), or a modified version thereof.”

      Enablement includes the solutions that are enabled by the specification to a PHOSITA. You appear to be trying to dodge this point. You see this is one of those cases where I believe that Lemley (and you) trying to dodge this VITAL point in order to try to burn the system down. Without those embodiments that are enabled (as well illustrated by LizardTech), then it becomes too burdensome to write the specification. So, here I have identified a vital point and supported it with case law. Your reaction: blow smoke and try to conceal the substance of my argument. My high school debate team members would have excoriated you in front of the judges. But, then you have a platform where you cannot be judged, don’t you?

      If you want real debate on funtional claiming, then I will spend the time to debate you. But, you would have to turn off the smoke machine.

      5. anon can comment.

      6. The pot calling the kettle black.

      7. Anonymity. So, you are going to ignore thousands of years of debate on this issue and get on your soapbox and say anonymity is bad. Well, I think the educated readers probably have read about anonymous pamphlets during the revolutionary war and know at least some of the counter arguments, so I won’t repeat them. I will say that in the real world where I live that this issue has been discussed with managing partners of the firm. And, it was determined that to take a stand either for or against patents would lose us clients. The world has become intolerate. Maybe you are so naive that you don’t realize that there is a bigger picture where big corp has decided that patents are going to end. You are part of that whether you consciously are aware of it or not.

      8. See 6. “Bashing,” attacking me being anonymous rather than the substance of my arguments, etc.

      My summary: On this board I cannot make a substantive argument without being blasted by the paid bloggers and extremist. Just read this string of posts. I also am regularly threatened with retribution outside of this board. They have also posted using my handle. They have in effect done everything they can to try and silence me. So, I do not feel so sorry for you or Prof. Lemley. That is what I have to deal with. What I write about you and professor Lemley is, in general, fair criticism. Deal with it. My criticism of your career is fair game. (I don’t try to pretend you are a racist, or call you racist names, or threaten you, which are all things I have deal with often on this board.)

      To you professor: stop playing games. You want a focused discussion on functional claiming, then that would be great. But, you thinking that you can turn your smoke machine on is not a debate. You simply do not address the substance of my arguments. And your arrogant dismissal of LizardTech evinces both ignorance of patent law and a pompous attitude. LizardTech illustrates that what is fair to claim is the scope of enablement. That the scope of enablement include all the embodiments that are enabled by the specification. That is a KEY point.

      You simply do not know how to fight fair. You simply do not know how to engage in real debate. We can make rules. No content of the post other than functional claiming. No other comments.

      I challenge you professor to that debate on functional claiming.

      1. you don’t realize that there is a bigger picture where big corp has decided that patents are going to end

        Why can’t you keep your paranoid jackoff fantasies over at Quinn’s blog where they belong?

        1. Yup. Despite all the evidence the contrary MM attacks me. And, here we have a pretty good example that MM is the most vicious person on this board. This comment from him is actually mild. A true teabagger.

          1. As I have oft posted, remove the trite and tired short-script items that Malcolm posts with, his ad hominem, his AOOTWMD, his twisting of law and fact, his empty and unsupported ‘policy’ and ‘opinion’ because of First Amendment (regardless of any legal ethics considerations), and you would completely wipe out 99% of his posts.

            It is well understood what he wants – he just has never made an honest attempt to get there in any legally acceptable and intellectually honest way.

  16. Dennis, this is from a post by NWPA, below:

    Try to respond what I said boy. You deserve no respect. I bet I have 30 IQ points on you. And, I bet I understand patent law much better than you do. Failed at graduate school, failed at start-ups, got a job from Lemley boy.

    Can you please make this stop? This sort of thing has no place here (or anywhere else, for that matter.) This NWPA creep has consistently abused the slack that you inexplicably grant him.

    1. DanH, I wholeheartedly agree. Night has probably never engaged in one meaningful debate with anyone on this board that I can recall. His entire repertoire consists of displaying his ignorance and his hatred of those with whom he disagrees.

        1. Yeah, swagger.

          Anon, look, you and I get along fairly well because, I think, we agree on some things even while disagreeing on others. Our conversations are the very best here on Patently-O. I hope you agree.

          I could only hope that you could have that relationship with everyone here. I am sure you must agree with MM and 6 on some things? If you do, say so.

          1. Neither are ever even close to being ‘on.’

            Sorry Ned – they do not even try to doing anything but pound policy and march up lemming hills. Law and facts are anathema to them.

            1. Law and facts are anathema to them.

              Pretty sure you’ve said similar things about Ned, or worse.

              How did your understanding of the “the law” and “the facts” work out for you in Prometheus v. Mayo? Not too well, as I recall. And yet you still insist on pretending you are the Patent Jeebus, the only one who truly understands the “actual law” regarding the American patent system.

              I know nothing that anyone (other than possibly Dennis and Jason) could say to you will alter your behavior one bit. The purpose of this comment is merely to remind everyone (again) what kind of person you are.

            2. How did your understanding of the “the law” and “the facts” work out for you in Prometheus v. Mayo? Not too well, as I recall

              LOL _ it did not work out too well for you either, even as you FAIL to still see that your pet theory is NOT a take away from that case – no matter how many sockpuppets you create at PatentDocs to chant it.

              Remember that way-too-eager dance a jog link to the Office take-away from the Prometheus case? The one that did not mention your pet theory at all, but did mention integration – an aspect you purposefully obfuscate with your pet theory?

              LOL – everyone else does.

              How about Myriad? – how did that one turn out for you? 30,000 plus mewling words of QQ from you afterwards and you recently admitted that you still don’t understand the case.

              How about Bilski? You predicted the end of business methods and the demise of Diehr – how did that one turn out for you? As I recall, you disappeared for several months after that case.

              You really svck at this Malcolm.

            3. your pet theory is NOT a take away from that case

              Please tell everyone exactly what you believe “my pet theory” is and provide an example of an enforceable claim that proves “my pet theory” is incorrect.

              If you can’t do that or you refuse to do that, then let’s discuss my longstanding assertion: you are a path0l0gical liar.

            4. How about Bilski? You predicted the end of business methods and the demise of Diehr – how did that one turn out for you?

              Pretty good. Your expansive view of Diehr was obliterated by Prometheus, decided shortly after Bilski. Diehr stands for the proposition that ineligible subject matter in a claim does not render the claim per se ineligible. Thats pretty much it, and it’s a trivial holding.

              As for “business methods”, between Bilski and Prometheus and the upcoming decision in Alice, I’d be pretty comfortable infringing just about any “business method” that isn’t so narrow that I could easily work around it.

              Maybe you live on another planet where courts and legislatures are continually praising the awesomeness of “business method” claims? That doesn’t seem to be the case here on Earth, however.

            5. I’d be pretty comfortable infringing just about any “business method” that isn’t so narrow that I could easily work around it.

              Says far more than I think you meant to say.

              Thanks again for the admission against interests.

            6. Says far more than I think you meant to say.

              LOL – that’s true of just about anything that anybody says to you. After all, you can read minds and instantly “impute” the “real meaning” of anybody’s comment. We learned that a long time ago.

              Thanks again for the admission against interests.

              Again: you say this kind of bullshirt every other day about something somebody says to you. It’s one of your stock non-responses. Nobody cares, Tr0llb0y. Get a life. Get the meds adjusted.

          2. I will agree that our exchanges are spirited – I just wish that you would not run away so much from the valid points I make.

            I ‘get’ why you do, it just gets a bit tedious trying to drag you back to reality so often.

    2. DanH,

      Your drive-by insults are no better.

      I notice that you failed to actually engage in any type of conversation on the merits, limiting yourself to your own insults.

      You appear to be chucking some pretty rocks from your glass balcony. Careful then, that the rocks are not returned to you.

    3. You know DanH, do you understand that these academics and some judges are saying things that are just outrageous. Can you understand that DanH?

      Lemley saying that software has no structure is violence against our culture. And, what amazes me is that no one stands up to these people. That is also part of the zeitgeist. And, let’s see, you just called me a “creep”? So, how are you using any different tactics than me?

      The reality DanH is that this is not some nice little debate. These people are burning our patent system down. They are doing it by selling untruths. We have judges like Lourie making absurd rulings that are counter to the scientific reality. And, the great reality, DanH is that there corporations that want to end patents and they are winning.

      Can Lemley defend his statement that software has no structure?

      Can Lemley defend his position on functional claiming?

      And, by the way, I am one of the more mild commentators, aren’t I? Rader, White, Moore, etc. have all said things more forthright than I.

      Etc… The answer is no. And DanH on this board I have deal with paid bloggers accusing me of all sorts of things. They have used my handle on here to post. They have called me racist names. In fact, the more I engage with the substance of their arguments, the more vile their replies to me become.

      So, get a life, DanH. The tenured professor can handle himself. And, if you read this blog carefully you will see that the good professor has accused me of “bashing” and not real criticism. Offensive.

  17. People pushing for “reform” are expected to be experts at what they are seeking to reform. Lemley, having never written a patent application for a real client, has no business telling people (who regularly do the work) how to draft claims. He was one of those behind the baseless “divided infringement” argument, which he argued in was the fault of the draftsman.

    Lemley’s view, which is the height of arrogance, is that a litigator can always poke holes into a claim by picking words and misconstruing them rather than view the “invention as a whole,” which we engineers are known to look at. This man has been a corporate troll for ever. That he claims to be an expert without actually being an expert is to be thoroughly exposed.

    As to the author, if he says that one need not be a patent practitioner to be an expert on reforming patent practice, then one need not be a lawyer either. I can be a leading proponent of reforming how surgeries are done because I do not have to be a surgeon to do that. There are some specialties–and patent practice is one of them–where there are numerous actual practitioners who can discuss reforming without non-practitioners seizing and dominating the debate to the exclusion of actual practitioners. I think that is what Prof Wegner is saying. The problem with policy pushers is that they always serve a different master. They are not neutral and always pitch for the rich guy. The Silicon Valley revolving door system helps these people go from infringing corporates to government jobs and back. Michelle Lee, lawyer for Google is now the head of the PTO. Collien Chien is pumped up and propagandized as the expert on the so-called patent problems, though she never dealt with a difficult inventor, a non-paying client, or a really vapid argument from an Examiner at the PTO. To really understand the practice, they need to get down to the trenches from the ivory tower.

    I did not know much of Prof Wegner when I had his class. My respect for him has increased greatly as a result of his effort to curb the ivory tower troll professors.

    1. The problem with policy pushers is that they always serve a different master. They are not neutral and always pitch for the rich guy.

      Ridiculous claptrap.

      Collien Chien is pumped up and propagandized as the expert on the so-called patent problems, though she never dealt with a difficult inventor, a non-paying client, or a really vapid argument from an Examiner at the PTO.

      Who told you this? Hal Wegner?

      Michelle Lee, lawyer for Google is now the head of the PTO.

      Before that we had Kappos, lawyer for IBM. But you complained vociferously then, too, right? Because Hal Wegner told you to?

      I can be a leading proponent of reforming how surgeries are done because I do not have to be a surgeon to do that.

      You’re absolutely right. You could be a patient who woke up from surgery with a forceps in his stomach. Do you need to be a surgeon to propose some rules to minimize the possibility of that happening?

      Is there something about engineers who become patent prosecutors which leads them to believe that they are sooper dooper smart and nobody can tell them what to do? You guys really need to get over yourselves.

      1. The counter you propose is by way of logical fallacy. This is quite unfortunate.

        I speak of reforming how surgeries are done, and you take a trivial example of a foreign body in your stomach. I speak of the ills of revolving door (and biased government), and you say that Kappos was from IBM. I speak of Collien Chien, and you attempt to use Prof Wegner as if his name were an expletive.

        The problem is that there is a coterie of non-practitioners who have seized the bull horn and advocating changes only to suit the large corporates who infringe others patents but claim that they are innovating and thus should be free from pesky suits while they gorge on billions. What we say is that their property rights are as sacred as (and no more than) those of small inventors who hold rights to their intellectual property. The large corporate infringers have been making monopoly profits by increasing the cost of doing business for others. Licensing a patent is as much a business as selling an iPhone or any software. The corporate trolls want to weaken the ability to obtain and enforce patents while increasing the costs. This is a form of antitrust violation (raising rivals’ costs) but instead of being accused of monopolists, the large corporate infringers have their people in the government pushing for their interests in the name of policy changes.

        Academic trolls like Lemley are monopolizing the debate so much so that Prof Wegner had to come out swinging. If you take a step back, the anger of real practitioners of the law at Lemley and his cohorts can be readily understood.

        1. I speak of reforming how surgeries are done, and you take a trivial example of a foreign body in your stomach.

          Dude, this is a blog. Your comment and mine are right up there for everyone to see. Your comment about reforming surgeries was an attempt to compare patent reformers to surgery reformers. And my point is that one can successfully and reasonably reform surgery without knowing how to do surgery, or without knowing the details of any particular surgery. Will some surgeons “resent” it? Sure. Mostly the crappiest ones to which the reforms were directed. Does that ring a bell? God, I hope so.

          I speak of the ills of revolving door (and biased government), and you say that Kappos was from IBM.

          In fact, you personally identified Michelle Lee and her affiliation with Google, as if the appointment of a person with practical patent law experience in industry was somehow novel (it’s not — as I pointed out) and, in itself, worthy of criticism (a valid point, possibly, except that Kappos is usually deemed a hero of sorts by the folks inclined to disparage Lee’s appointment).

          I speak of Collien Chien, and you attempt to use Prof Wegner as if his name were an expletive.

          Again, here’s what you wrote: Collien Chien … never dealt with a difficult inventor, a non-paying client, or a really vapid argument from an Examiner at the PTO

          I questioned where you obtained this information. It seems rather specific. Who told you this? Hal Wegner seemed like a reasonable guess because he’s somehow become a source of “information” for people who spew the sort of garbage you’re spewing.

          Licensing a patent is as much a business as selling an iPhone or any software.

          There’s a huge difference between sitting at a computer and writing “novel” computer-implemented functions, on one hand, and creating a working machine or software that actually works, on the other hand. There are a lot of incredibly intelligent, articulate people out there who believe that the law should reflect these differences. It’s hardly a radical proposal.

          1. There is no “huge” difference between sitting at a computer terminal and typing up an invention and in stories such as (a) Steve Jobs got his idea while in the toilet, (b) some other “genius” got an idea for online auction when he wanted to buy “pez dispenser,” or the canonical story (usually fabricated after the fact to propagandize and legitimize the stealing of others’ work) where the owner of a large company claims to have come up with the idea when fully drunk at a bar, and having scribbled notes and drawings on a bar napkin. These stories are there because the society recognizes and applauds genius in invention.

            If you say that clearly, then it is one thing. But waging a war about how an invention is made–and there is a specific code section that says inventions cannot be negatived by the manner in which they are made–is unjustified. The courts have recognized that an invention can be made by hard work and large investments or a even extraordinary insights. “A person of ordinary skill in the art is also presumed to be one who thinks along the line of conventional wisdom in the art and is not one who undertakes to innovate, whether by patient, and often expensive, systematic research or by extraordinary insights, it makes no difference which.” Standard Oil Co. v. American Cyanamid Co., 774 F.2d 448, 454 (Fed.Cir.1985).

            You appear to prefer the brute force method (expensive, systematic research) rather than the insightful method, which is perhaps the real thing that needs to be recognized and compensated. Your objection is premised on the fact that only inventions that are supported by large accumulations of capital should exist, any property or individual right that conflicts with large accumulation of capital must be extinguished.

            This world view pervades the government, and that is likely the source of inspiration for corporate trolls such as Lemley. The laws in this country have been tailored to favor large companies and accumulations of large amount of capital to the detriment of the ordinary citizens. And law enforcement–there has been a recent quote from Eric Holder–also favors capital accumulation and in the process, destruction of the individual.

            Even in large companies, a small group of researchers is tasked with the time and material to come with novel ideas. They rarely themselves engage in manufacturing the thing–we all know that Chinese slave workers are assembling parts of the iPhone–or even coding the ideas, for which Indian slave workers slog at Microsoft and Google. If a company can separate the innovator from the coder from the assembly line worker, it is not a scornful thing to have these functions done by different companies–the inventor invents and patents, he licenses it to someone, someone else files suit for infringement and all share in the proceeds. This is called division of labor, and the concept is ancient

            But for the desire to worship the almighty capital, there is no logical reason to object to licensing as a business model.

            1. AnonymousPerson: there is no logical reason to object to licensing as a business model.

              That’s great because I’m not “objecting to licensing [patents] as a business model,” at least not when the patent system is working as it should work.

              However, when the patent system is broken and it’s possible for lawyers who’ve never written a line of code in their life to simply sit at home and create endless reams of functionally-claimed computer-implemented garbage with which to troll entities (whether companies or individuals) who actually make and sell products and services that work, then this “business model” becomes the source of real problems.

              The other issue is

              If a company can separate the innovator from the coder

              Too much “separation” is another part of the problem. The “innovator” of an apparatus needs to describe the new apparatus in structural terms that distinguish the new apparatus from those in the prior art. That’s basic patent law. I can’t just claim “A car capable of hoverng two feet above the ground and turning a sharp corner in response to my thoughts.” I have to describe the new structure of that car. Basic patent law.

              But if a computer is involved, then everything changes. Suddenly I’m allowed to just claim the new information processing function. I can even just substitute a new name or description for the “data” being stored or processed and get the patent. Is that “innovating”? If so, it’s just about the lowest form of innovating imaginable. Rather than “innovating”, it’s more along the lines of “speculating about what I might be able to sue somebody with if they ever make and sell a valuable product or service.” That’s not why we have a patent system.

              But let’s just all take a moment to recognize that you’re probably one of those bottom-feeding “innovators” or you have them for clients. That’s what you’re most concerned about: yourself.

              we all know that Chinese slave workers are assembling parts of the iPhone–or even coding the ideas, for which Indian slave workers slog at Microsoft and Google.

              Slaves? Huh. Sounds like something you are really passionate about. Can you show me where I can find you arguing on the Internet that MS and Google and Apple shouldn’t be allowed to do that?

            2. at least not when the patent system is working as it should work.

              LOL – translation: because “as it should” is as Malcolm so decrees it (with no law to pound on and with no facts to pound on)

            3. And here comes the dissembling: “in structural terms…That’s basic patent law

              except where such is not basic patent law – like in the ability to use functional language in addition to structural terms, like in reading a claim – as actually required in basic patent law – as an person of ordinary skill in the art to which the invention pertains.

              Hmmm, exactly like I have corrected Malcolm’s dissembling in the past.

        2. “and you take a trivial example of a foreign body in your stomach.”

          It isn’t trivial when the forceps are left in your stomach. Or so I hear anyway.

          “Licensing a patent is as much a business as selling an iPhone or any software.”

          It may be “as much a business” but I think many folks wouldn’t agree that it is “just as much of a legitimate business”.

            1. Pretty sure I said “many folks” originally re re.

              Oh look! I did!

              “I think many folks wouldn’t agree that it is “just as much of a legitimate business”.”

          1. The consequence of leaving a pair of scissors or something in your body may be nontrivial (depends on where it is left), but your argument detracts from the main point.

            The objector (MM) gave an unsophisticated example and thus it is trivial as compared to the subject matter discussed, which was reforming surgical procedures. If all Lemley’s contribution to reform is to recognize a trivial malady that anyone can recognize and correct, then he need not take control of the debate saying the same thing over and over again. What Lemley does is to conjure up some nonsensical thing such as “gold plated patent” in order to separate “good” patents from “bad” patents, as if these are known ahead of time before a technology matures or if there is no alternative way to do a thing, etc.

            Noticeably, Lemley does not talk about “Excrement-plated infringer” status by the PTO to his paymaster infringers . Is Lemley only concerned of bad patents and not about bad infringers of good patents?

            1. “The objector (MM) gave an unsophisticated example and thus it is trivial as compared to the subject matter discussed”

              That’s interesting you should say that because in 50+ years of modern medicine it has just now been coming to light (see the news over the last 4 years) that people in the medical industry weren’t using “unsophisticated” measures like simple checklists to assure that forceps weren’t left in people after surgery or other disasters didn’t occur. To me, that seems to indicate that using checklists to ensure all steps are properly performed and everything is properly accounted for is rather “sophisticated” to the geniuses in the medical field. And in fact I imagine that the lists they come up with will in fact be sophisticated.

              “which was reforming surgical procedures.”

              Yeah I know, checklists are all the rage right now in reforming surgical procedures. Watch the news. Which is why MM brought them up.

              “What Lemley does is to conjure up some nonsensical thing such as “gold plated patent” in order to separate “good” patents from “bad” patents, as if these are known ahead of time before a technology matures or if there is no alternative way to do a thing, etc.”

              It was just a suggestion. So what if he makes a suggestion?

              “Is Lemley only concerned of bad patents and not about bad infringers of good patents?”

              Maybe, what of it if he is? You can be paid to care about “bad infringers” and he can be paid to care about another aspect of the patent system. Division of labor eh? Seems fine to me.

    2. Collien Chien is pumped up and propagandized as the expert on the so-called patent problems, though she never dealt with a difficult inventor, a non-paying client, or a really vapid argument from an Examiner at the PTO.

      Her work is pretty much all pure policy. She gets interest because its about trolls/NPEs, and I disagree with it. But she did work as a prosecutor at Fenwick.

      Could of sworn Brian Love worked for both Fish and Wilson/Sonsini.

      Her school actually has quite a few practitioners and registered patent agents/attorney. They just tend to be part timers or non-academics. Thomas Schatzel, for instance, is usually teaching the patent law courses, and has been in practice for 50 years.

  18. Professor if you want a civilized discussion, then stop telling us that it is fine to put square tires on cars. Your arrogant lies are at the heart of the incivility.

  19. >Why am I resorting to the emotional heart strings; because the current round of >patent reform is an existential threat to the US patent system.
    Bob White

    You see Professor, the people that actually understand the patent system are not fooled by Lemley’s nonsense. They know he is trying to burn the system down and trying to sell it to the ignorant as improvements or problem fixes. Please. If you want a civil discussion, then be civil yourself. You professors are clearly the ones that are uncivilized.

  20. Ted:

    Just to clarify, did you receive a US patent when you were the lead inventor? I was unable to identify a US patent with your name on it.

    BTW — don’t tell MM what your claims were about. I suspect that he wouldn’t appreciate them.

    1. I never stated I received a “US” patent, and other countries do issue patents. As my post stated, “[I] was the lead inventor on several patent applications and one patent.” To be specific, I have one issued Canadian patent and filed several U.S. applications.

      1. Grist for Malcolm and Prof. Sichelman to ‘discuss’

        The claims from CA 2475869:

        1. A method for providing automated transportation services, the method comprising:

        receiving a request for a transportation service, the request including

        identifying information about the requester;

        determining an availability of the transportation service; and

        responsive to the availability of the transportation service,

        automatically scheduling the transportation service for the requester using the identifying information about the requester.

        (request with info and the command to just “do it”…)

        2. A system for providing automated transportation services, the system comprising:

        a telephony gateway for routing telephony services;

        a speech server communicatively coupled to the telephony gateway for providing speech recognition services;

        an interface server, communicatively coupled to the speech server, for providing an interface between the speech server and a transportation services booking system;

        a transportation services booking system, communicatively coupled to the interface server, for providing customer information and performing dispatch services; and

        wherein the interface server receives requests for transportation services and automatically provides dispatch instructions to the transportation services booking system in response to the requests.

        (BRI renders the servers as people (?) – no machines even required…?)

            1. It IS interesting that not once have you ever described the structure of a “1.”

              Not once.

              And then you pound the table about Lemley?

              Start now, Night, tell us about the structure of a “1.”

            2. Ned, I cannot believe that you want me to reproduce this argument AGAIN. I don’t argue this point again. It is absurd to expect me to argue this once a month.

            3. It IS interesting that not once have you ever described the structure of a “1.”

              Your pathetic canard of a an attempt at a brier patch has been destroyed six ways to Sunday Ned. How is that attempt of yours to obtain a copyright on this ever-so-awesome-canard of a “1″ coming along for you?

              Pay attention.

          1. They look like crappy claims to me. What do you think of them, Tr0llb0y?

            Of course, the really important question is not what I think of them. The real important question is: what does George Bernard Shaw think of them?

            1. LOL- and your typical mantra of h@te that these type of people are nothing but bottom feeding grifters…? Funny, you seem awfully restrained when Prof. Sichelman is standing right here before you as one of those very types.

            2. Funny, you seem awfully restrained when Prof. Sichelman is standing right here before you as one of those very types
              Has MM turned over a new leaf? Alas, I don’t think so — it is because he doesn’t want to offend his new best buddy by telling him what MM really thinks about the claims.

      2. I never stated I received a “US” patent
        That is why I requested a clarification.

        other countries do issue patents
        I recognize that. I also recognize that some countries really don’t substantively examine patent applications — or if they do, they don’t spent a lot of time doing it. For example, I believe that the claims for which you received your patent in Canada were rejected at the US.

        lead inventor on several patent applications
        which are all abandoned at this point in time?

        I raise the point because in taking a brief look at the claims, it appears that you’ve used a lot of “functional” language. All told, I suspect that while you learned something from your experience with the USPTO, you are still very much a newbie.

        Get 5 (or preferably 10) allowances (at the USPTO) and then I’ll give you some street cred.

  21. I heard from some students at a reasonably highly ranked IP law program, about how the professor seemed to be confused between a divisional and continuation-in-part. Perhaps it was just a misstatement, but when you hear about such things, it does make you wonder if Hal Wegenr doesn’t have a point.

    It would be interesting to have an objective measure of how competent law professors are at the subject that they teach.

    Being able to articulate opinions on a subject does not necessarily mean that the one with the opinions has a deep knowledge of that subject. If the judges look to opinions of professors for guidance in making decisions, because the professors are assumed to be knowledgeable (because they are professors), then the professors become the source of new innovations in law despite not necessarily knowing the law as well as one might think (in some cases it might be kind of a circular process of people value the academic’s opinion, and therefore the academic’s opinion is important rather than the opinion is important because the academic really knows what he is talking about). Now, that is likely an overly skeptical point of view, but it seems to me that more objective information on the competence and actual knowledge of an academic on the subject that the academic teaches would be a good thing.

    1. Multiple Choice Question:

      Does “If the judges look to opinions of professors for guidance in making decisions” mean that there is a heightened need for ethical strictness.

      a) Yes
      b) No
      c) Don’t care
      d) The ends justify the means

      1. Does “If the judges look to opinions of professors for guidance in making decisions” mean that there is a heightened need for ethical strictness.

        Does “If the judges look to opinions of parking meter attendants for guidance in making decisions” mean that there is a heightened need for ethical strictness?

        Deep stuff, folks.

        Maybe someday Tr0llb0y will tell us how he intends to implement this “heightened need”. Shall we take a guess?

        1. LOL – it sure won’t be “Whatever” or “Intellectual honesty is not needed on a blog” – but it very well may have to do with the ABA (ever hear of those initials?)

    2. I heard from some students at a reasonably highly ranked IP law program, about how the professor seemed to be confused between a divisional and continuation-in-part. Perhaps it was just a misstatement, but when you hear about such things, it does make you wonder if Hal Wegenr doesn’t have a point.

      David Lewis heard from “some students” at a “reasonably highly ranked IP law program” that a professor “seemed to be confused” about something. That makes David Lewis wonder if Hal Wegner “has a point” (about what?).

      Maybe David Lewis needs to go back to law school and learn something about hearsay and why it’s worthless as evidence, particularly when its presented in such vague and general terms that make the assertion nearly impossible to confirm or deny.

      If the judges look to opinions of professors for guidance in making decisions, because the professors are assumed to be knowledgeable

      Geebus. This is nothing more than rehashed wingnuttia regarding “the ivory tower.” Yes, folks, some professors are more intelligent than others. Some professors make more accurate than others. Some professors are more reliable than others.

      The same is true for lawyers. The same is true for judges. The same is true patent prosecutors working in the computer-implemented arts (this latter group, however, appears to believe — in spite of mountains of evidence to the contrary — that it alone is very specially endowed with insights about patent law that nobody else on earth could possibly hope to understand).

      The patent teabaggers are desperate because they don’t have any decent arguments left to defend the status quo except for “Waah!! Waaah! Leave us alone or we’ll take your computers away!!! Waah!!!!” So now they’re just attacking “academia” in general hoping that clients, lawyers, and judges will pay less attention to what those bad old communist property-hating ivory tower types have to say.

      Guess what, teabaggers? Not going to happen. Here’s what will happen: guys like Noonan and Quinn (and perhaps Wegner, now) will just marginalize themselves because (1) they are very often completely wrong about very important things and (2) they are completely invested in the status quo and the ballooning of the patent system into an ever-larger playground for wealthy entitled people (i.e., their clients or the clients of their firm) to play around in.

      These are guys who couldn’t wrap their heads around the simple fact that if you let people claim an old step followed by a new thought, the claim is effectively a claim to the new thought. Really basic stuff, stuff that any ordinary person could understand (and did). But they couldn’t admit it. Nope. It wasn’t in their interest to do so. “More patents, all the time, and easier to enforce” — that’s what they want. Any attempt to criticize this ideology or propose changes to the law inconsistent with that ideology will be met with knee-jerk accusations that the critic is ignorant of the law, or technology, or both and very little else. Need evidence of this? Just read the recent threads. And there’s a whole lot more where that came from.

      1. These are guys who couldn’t wrap their heads around the simple fact that if you let people claim an old step followed by a new thought, the claim is effectively a claim to the new thought

        (sigh) – that vapid pet theory of yours has been reduced to a meaningless ember.

        And yet you (and your sockpuppet army that you ‘don’t use’ ;-) ) continue to flog that horse…

    3. more objective information on the competence and actual knowledge of an academic on the subject that the academic teaches would be a good thing.

      Maybe Hal Wegner can come up with a test that objectively determines one’s “actual knowledge” about the “actual law.” Unless the author passes the test, his/her views — regardless of their accuracy — can not be cited by any judge or any attorney in any legal brief. Those who fail to follow the rule will, of course, be subject to sanctions, disbarment, and/or impeachment.

      And Hal can be in charge of re-writing the test every three weeks.

  22. “one need not be an expert on every nuance of the patent system, especially the nitty-gritty of prosecution, to make sound reform proposals.”

    In this assertion, sir, you don’t go far enough. Sound reform proposals on patent law should hardly come from an echo chamber of nought but patent lawyers. I would argue that economists, technologists, innovators, and yes, even layment have voices that should be heard.

    In many ways, economics is the leading social science that should design IP policy, with lawyers re-interpreting the policy into a clearly defined ruleset. Because what is IP policy if not simply applied economics? Incentives, motivations, rewards, rent allocations? Are these legal issues, or economic ones?

    But I agree with your case against Wegner. Thanks.

  23. The guy “anon” in these threads that is always huffing and puffing about “higher ethical standards” and constantly suggesting that Lemley and everyone else who dares criticize the status quo is “anti-patent” at best and a communist Nazi-esque liar at worst — that is the same guy who suggested that mailroom staff could be used to screen registered letters sent to attorneys, review those letters to see if they included information about prior art, and then discard those letters without the attorney every looking at them. He also trolled this blog for years, posting under dozens of pseudonyms a day at time, trying to derail any attempt to explain why Prometheus’ claims had to be ineligible or obvious per se or unenforceable with endless streams of insults and incomprehensible gibberish.

    Everybody got that? And now he’s here to tell us about “credibility” and “higher ethical standards”.

    He’s a joke, and somewhat of a s0ci0path as well. When he’s not here (which is pretty much never), he’s over at Quinn’s echo chamber reinforcing Gene’s propoganda.

  24. This guy “NWPA” that’s always running around accusing Lemley of
    criminal-this” and “criminal-that” (try not get him confused with his li’l buddy “anon” — that’s the “quality review is a Gestapo regime” guy who thinks that if only Lemley were held to the appropriate “higher ethical standards” than everyone would ignore everything Lemley says because, hey, “higher ethical standards” or something) … anyway, this guy NWPA has a fascinating theory that the “attacks” on the patent system are a major contributor to the shrinking middle class in America.

    Got that, folks? It’s not the runaway patent system that is regularly being abused by bottom-feeding patent attorneys and wealthy grifters in cowboy drag sueing thousands of businesses across the country that is leading to the shrinking middle class. Nope. It’s the criticism of those folks and attempts to rein in their b.s. that is causing the middle class to shrink! Try to believe it.

    Maybe somewhere there’s a patent teabagger professor out there who has the time to flesh out and prove that thesis for NWPA. Or maybe not. Anybody care to make a prediction?

      1. He is without a doubt the Glenn Beck/Rush Limbaugh of the anti-patent circuit.

        It’s pretty d@m funny given his AOOTWMDs.

        1. He is without a doubt the Glenn Beck/Rush Limbaugh of the anti-patent circuit. It’s pretty d@m funny given his AOOTWMDs.

          What’s funny is how you choose to compare the USPTO to “the Gestapo” (a typical Beck/Limpballs move) or rant about “judicial activism” (a typical Beck/Limpballs move, and then when someone points out that you said those things, you first accuse them of “behaving like right wing commentators”, and then (this is even more bizarre) you accuse them of “accusing others of doing what you do)”.

          I’m just reminding everyone of your own comments, Tr0llb0y (likewise with NWPA). Go ahead and deny them if that pleases you.

          Dennis and Jason know the truth about both of you. Like me and many other people, they read the comments here (and elsewhere) and they know exactly how incredibly full of b.s. you are.

          Or better yet: go ahead and sue me as you’ve threatened to do before. Seriously, man: make my day. An anonymous s0ci0path blogtroll sueing a blog for “slander” because another commenter dared to remind people of the blogtr0ll’s own nutjob utterances — great case! Please bring it on. Or will you be too busy fighting the “Gestapo” lurking at the USPTO? LOL!

    1. I do wish MM that you would figure out that I don’t mind Lemley not liking the patent system. I respect that view. What I don’t like is Lemley intentionally mischaracterizing patent law in journal articles to try to burn down the system through judicial activism. I wish you would try to sort that out in your head. Honest people that present honest arguments about why the patent system should not exist are fine by me. I respect them.

      1. “to try to burn down the system through judicial activism. ”

        That’s how the system was built, I see no reason why it shouldn’t end in the same fashion.

      2. Try to believe it folks. Here’s NWPA:

        You are starting to sound like one of the far right radio commentators.

        LOL! You mean “far right radio commentators” like Rush Limbaugh? The guy who always complains about “judicial activism”? The guy who never shuts up about the “ivory tower” and academics? (any doubts? just google it).

        I’m 100% sure that it’s you who sounds like those guys, not me (I and many others have noted for years that “judical activism” is just wingnut code for “decisions that conversatives don’t like”). Nice try, though.

        Do you need evidence that you sound like the “far right radio commenters”? Let’s see, let’s dig into the archives from way back in the past like 5 minutes ago to see one of your recent comments:

        What I don’t like is Lemley intentionally mischaracterizing patent law in journal articles to try to burn down the system through judicial activism.

        If anybody needs more proof that NWPA is completely full of it, I’m happy to provide.

          1. Perhaps you have not noticed all those irony factories going KA-BLOOEY !

            Oh, I’ve definitely noticed “some irony”, Tr0llb0y.

            As for the “exploding factories”, you probably should ask your psychiatrist for a less hallucinogenic cocktail of medications.

          2. anon, I really am getting worried about MM. He seems to be coming apart at the seams. Seriously, MM, take one week off this blog. Just friendly advice.

            1. NWPA,

              Malcolm’s problem is easily recognized as one of cognitive dissonance. He purports to work in a profession for which work product he exhibits a deep seated h@tred of.

              He simply needs to find a profession in which he can believe in the work product.

  25. What is your basis for the assertion in bold –
    “Berkeley and Stanford serve—and, historically, GW has served (and soon again will serve)—as model programs for training patent practitioners, scholars, and judges.”?
    I think GW recently added a few faculty members to their patent program, and will be getting one or two back from Sabbatical as well?

    1. Clarification: I’m referring to your assertion that GW has served as a model program, but currently does not.

      1. Good point Anon. Was that an intentional slight on GW? What is the basis of saying that GW currently is not a model program?

    2. My intent as not to slight GW in any way. However, contrary to your assertion, unless something happened in the last week, GW has not recently added any tenured or tenure-track patent law professors. It lost John Duffy. Scott Kieff is on leave at the ITC. This means there are currently no tenured or tenure-track professors at GW teaching patent law, which in my view, does not make for a model program. However, Scott Kieff will soon return, and I know GW is actively searching for another patent law professor–so the program “will soon again serve” as a model program.

  26. Gaining perspective on Patent Law takes quite a while. There are a lot of pieces that influence each other from both practical and theoretical perspectives. Many will never obtain a wide perspective because of the strong emphasis on specialization. At least patent lawyers have the benefit that many in practice represent clients that are sometimes the plaintiffs and sometimes the defendants, sometimes the senders of letters and sometimes the recipients of letters. Sometimes the big guy, and sometimes the little guy. Sometimes the established guy and sometimes the new guy.

    While various professor can give you theoretical frameworks to put those experiences into, they are not really going to help. The problem isn’t policy, it is human frailty, and no little bit of cussedness. Until someone caps the toothpaste tube, squeezing it anywhere will just make the toothpaste come out the end. And the lawyers don’t want to cap the tube.

  27. Looking at the list, the University of Houston list is perhaps wrong. Vetter clerked for the Federal Circuit (Gajarsa) , but I am not sure that Janicke did.

  28. Listen. You are just some guy writing from your Ivory tower, and to me that means you understand patent law theory but not its practice. I note from your resume that you never practiced law. While founding a company is good, it is not the practice of patent law. If they were the same then no CEO would ever need in-house patent counsel. So my advice to you is to stay in your lane. I am sure that as a prof you are great at building a theoretical foundation that no patent attorney can do without. But when practical business applications need to be considered (i.e., PRACTICING law), then you are not qualified.

    1. You must not have read my post or my resume carefully. As I stated in the post, “in addition to practicing patent litigation for four years … I’ve consulted and served as an expert on an-going basis in patent litigation matters and related projects.” So I did practice law and continue to do so. It’s incredible how many commenters, including yourself, are willing to make such bold statements without doing any careful reading.

      1. “It’s incredible how many commenters, including yourself, are willing to make such bold statements without doing any careful reading.”

        Welcome to the internets.

          1. Lemley’s proposals

            Did Lemley ever propose impeaching judges because they used a particular word in a patent decision?

            Nope. That was the patent teabaggers who came up with that.

            Did Lemley ever accuse any patent fluffin’ nutcase of being the “devil incarnate”?

            Nope. That was you and your fellow teabaggers describing Lemley.

            There’s something going on here and everybody knows what it is. Your very own Eric Guttag recommended that you guys work on your scripts.

            Perhaps accusing academics of being evil communists and liars who are conspiring to take away your precious patent freedums isn’t the way to go? Just a thought.

            1. LOL -lovely thought from the guy who thought that intellectual honesty was not required for posts here since this is just a blog and not a court.

            2. the guy who thought that intellectual honesty was not required for posts here

              It’s not required. And we all know that because you are allowed to comment here, Tr0llb0y.

            3. MM, please stop lying. Show me a post that says that Lemley is the “devil incarnate”. You cannot because the only who ever says that is you. Please don’t turn this thread into one of your bizarre massive smoke machines.

    2. my advice to you is to stay in your lane.

      LOL.

      Or else what?

      God, you teabaggers are a bunch of pathetic crybabies.

  29. The real problem here is not that Prof. Lemley is unqualified to teach or discuss patent law, the problem is that too many see Prof. Lemley as MORE qualified to speak on patent law than those who actually have experience prosecuting. It’s the classic problem with academia and why certain terrible proposals get so ridiculed. Being an Academic with a CV as long as your arm does not make you MORE qualified to teach a practical subject than someone with 20 years of experience doing it and it may make you LESS qualified.

    However, no academic will ever state that they are LESS qualified to do their job than someone else.

    I think this is the point missed in the underlying article. The comment I see here is simply questioning if professors with no practical experience should be seen as the BEST source for information for any kind of student.

    Also, just as a point. From my experience, patent litigation experience when it comes to teaching prosecution issues should be seen as strong DETRIMENT to your ability. Thus, a long discussion of Prof. Lemley’s litigation experience in my mind makes him even less qualified to teach or discuss these issues.

    1. Interestingly (or not) I do not agree wholesale with your post.

      My mentor always tried to point out the full gamut of understanding patent law should appreciate both prosecution and enforcement phases of intellectual property protection. I would hazard that just as bad as someone too focused on litigation would be someone with no appreciation at all of litigation – and to the point of your post, one who recognizes their shortcomings – even without having detailed experience in that realm, can still make excellent sources of information.

    2. As I noted in my post, Mark Lemley does not teach patent prosecution at Stanford (an adjunct does). He does teach patent law (i.e., the basic course), and his litigation experience alone–not to mention his in-depth studies on PTO practices–make him highly qualified to teach the prosecution components of that course.

      In that regard, most litigators read numerous file histories and patents as part of the litigation process, and understand the basics of prosecution quite well. Granted, they do not usually know the nitty-gritty of PTO practice, the contours of claim drafting, and the like. But the types of proposals academics make are usually not down in the weeds, but at a higher level of general policy.

      As I stated–while you might disagree with Lemley’s suggestions–his experience clearly makes him highly qualified to make such proposals. And I’m not saying he or academics are the “best” situated to do so. But most of us are very well situated, and simplistic criteria like having practiced as a patent prosecutor (or not) should not be used as a litmus test for the soundness of our proposals.

      Rather, focus on the proposals themselves rather than the people behind them. And if you believe you have better proposals, it’s a fairly straightforward process to publish in law reviews, submit comments to the PTO, and the like, and I urge you and other prosecutors to do so, as more ideas are sorely needed.

      1. focus on the proposals themselves rather than the people behind them. And if you believe you have better proposals, it’s a fairly straightforward process to publish in law reviews, submit comments to the PTO, and the like, and I urge you and other prosecutors to do so, as more ideas are sorely needed.

        Why do that when simple-minded wholesale smearing has been so successful for them (at least in their own minds)? Publishing their own proposals? That sounds like actual work. It’s much easier to simply scream that “more patents, all the time, and easier to enforce” is always the right answer and everyone who dares to disagree is a communist trying to institute “Gestapo regimes” at the USPTO (<– the bl0gtr0ll "anon" is particular fond of the Gestapo comparisons) and return us all to the "iron age".

        Meanwhile, the number of patent grants continues to explode …

        1. LOL – hey Malcolm, just because your style fits that era’s G-man propaganda style, don’t blame me for noting the historical likeness.

          As to any other artistic flourishes I use, by no means am I limited to one historical era.

          Then again, you only have your very limited and trite script to work from…

      2. fairly straightforward process to publish in law reviews, submit comments to the PTO, and the like

        B-b-b-b-but this blog is the best place to protect children running through the fields of rye.

        /eyeroll

      3. You’ve exposed the flaw in your argument. You acknowledge that litigators “do not usually know the nitty-gritty of PTO practice, the contours of claim drafting, and the like.” And you also state that academic proposals are “at a higher level of general policy.”

        But your latter point is incorrect. The proposals that are attacked most vehemently, such as the continuation rules package and the functional claiming, very much impact the “down in the weeds” practices. As a result, prosecutors who are very much in the weeds resent those without substantial knowledge who offer up uninformed or unrealistic policy proposals.

        Your other comment about how Lemley’s “litigation experience” makes him “highly-qualified” to teach the prosecution components of a patents 101 course is also questionable but not really the point. No one really cares whether Lemley is qualified to teach 2Ls about patents. The issue is whether Lemley is qualified to make low-level proposals about patent prosecution.

        The reg. no. is not the ultimate arbiter of knowledge, but is a good signal for how much energy a particular person has devoted to learning about prosecution.

        1. he reg. no. is not the ultimate arbiter of knowledge, but is a good signal for how much energy a particular person has devoted to learning about prosecution.

          You need never have prosecuted a patent to obtain a reg number. All you need to do is learn how to look up some stuff in a manual, pay somebody some money, and pass a very easy online test.

          1. and pass a very easy online test.

            LOL – last I checked, the pass rate was still under 60% for people who typically have both engineering and law degrees.

            Malcolm spin FAIL.

            1. ast I checked, the pass rate was still under 60% for people who typically have both engineering and law degrees.

              All I can tell you is that I’ve worked with hundreds of patent prosecutors and I’ve yet to meet one that failed the exam. Maybe we travel in somewhat different circles?

              What’s “easy” is relative, of course. Getting a “law degree” or an “engineering degree” or both is pretty easy, once you’re admited to the school. You pay your money and try not get F’s in all your classes.

              Maybe for undergrads who partied their way to their engineering degree, a test that relies more on reading comprehension than math skills seems “hard.” I don’t know. I found the MPEP “annoying” because there were multiple questions that were worded so poorly that they threw the questions about. But “hard”? C’mon.

            2. All I can tell you is

              LOL – more spin to ignore facts….

              Or maybe someone is “making up” those inconvenient facts…

              and try not to fail

              LOL – you are such a dolt. You just don’t get the real world do you?

        2. I wholeheartedly disagree. The continuation rules and functional claiming are indeed “high-level” patent law issues that anyone with significant litigation experience understands. The fact that they impact “down in the weeds” practice does not put such proposals solely in the realm of prosecutors.

          As for continuations, Lemley’s motivation was a good one. Continuations are abused right and left, particularly when it comes to claim amendments that destroy the notice function of patents. I agree Lemley and Moore’s proposal was too rigid, but certainly some reform in the area is sorely needed, and most prosecutors as well as the AIPLA have essentially refused to admit as much. So it’s not surprising that academics “resent” (to use your term) prosecutors who are unwilling to admit as much.

          The same holds true on functional claiming. Do you really mean to say that as a patent law professor with effectively 5+ years of litigation experience–most of it in software and communications–that I cannot understand how functional claims work? That’s ridiculous. Lemley’s general point is a simple one–claims with functional language, i.e., that describe a mere function absent recited structure in the claim–should be limited to the structure disclosed in the specification and equivalents regardless of whether “means for” (or some similar qualifier) precedes the claim language. Especially for software inventions.

          What’s so difficult to understand about that argument? Sure, there will be some gray areas, and Lemley’s suggestion may make your life as a prosecutor somewhat more difficult, but what happened to the public good here? Again, do you have any better proposal (other than to leave the system “as is”)? And if you believe the current system works well, then why as a policy (not as a statutory) matter should we limit claims with “means for” to disclosed structure and equivalents? Clearly, Congress had public policy rationale for 112(f), but it seems prosecutors have lost sight of what it is (and perhaps it’s not coincidental that they don’t test policy on the patent bar exam).

          1. >Lemley’s general point is a simple one–claims with functional >language, i.e., that describe a mere function absent recited >structure in the claim–should be limited to the structure disclosed >in the specification and equivalents regardless of whether “means >for” (or some similar qualifier) precedes the claim language. >Especially for software inventions.

            This is not including the solutions to the functional claim that a PHOSITA knows. That is the little trick that Lemley is trying to pull. Almost all claims for circuits, software, or mechanical machines with moving parts have functional claims. There is no other way to capture what the inventor invented without a 100,000 specification. And, you will notice that Lemley never goes through real inventions and real situations.

            So, you see, the structure is there. The structure is in the solutions to implement an element in the claim that a PHOSITA knows.

            (And, as an aside, according to Lemley software has no structure so how could there be structure in the specification?)

          2. Ted – Let’s start with the obvious. You say “The continuation rules and functional claiming are indeed “high-level” patent law issues that anyone with significant litigation experience understands.”

            But the basic criticism of Lemley’s paper that formed the basis for the rules was it didn’t distinguish between RCEs and Rule 53(b) continuations. It is apparent that he _didn’t_ understand, and it led to a misguided policy that was withdrawn in an uproar. Hence, the reason we resent people with limited knowledge on a topic pretending to be experts.

            1. it led to a misguided policy that was withdrawn in an uproar. Hence, the reason we resent people with limited knowledge on a topic pretending to be experts.

              The rules were withdrawn. Why all the resentment?

              Maybe you should resent your mouthpieces who were apparently incapable of persuasively pointing out this alleged “flaw” “upon which the rules were based” before the withdrawn rule was enacted in the first place?

              Lemley’s just a guy making arguments, folks. Not all of his arguments are awesome but some of them are pretty darn good. It seems to me that it’s those arguments that cause you people the most “resentment.”

              There’s a lot more to the practice of law than the so-called “actual law” that the patent teabaggers seem to obsess over. For example, there’s other stuff like “fairness” and “logic” that tends to play a role now and then. But if you focused on that stuff, of course, you’d lose a lot of the fights that keep coming up, wouldn’t you? Better to shovel in some gibberish about “the Founders” and “the millions of children that will die if the drug we can’t describe is never invented because … Church-Turing thesis!!!”

            2. There’s a lot more to the practice of law than the so-called “actual law” that the patent teabaggers seem to obsess over.

              LOL – B-b-b-b-but there is ‘policy’ and ‘opinion’ and law because the Red Queen/Humpy Dumpty says so…

              /eyeroll

            3. (ps Malcolm, there is an easy way to defuse the “obsession” that some have for how the law actually is – acknowledge those points and integrate them into the discussion instead of denying them/dissembling over their existence and meaning/running away from them).

              You know – the ethical thing to do when controlling law (and facts) are present…

          3. Ted Sichelman, Lemley’s general point is a simple one–claims with functional language, i.e., that describe a mere function absent recited structure in the claim–should be limited to the structure disclosed in the specification and equivalents regardless of whether “means for” (or some similar qualifier) precedes the claim language. Especially for software inventions.

            Ted, the problem with your statement is that “software inventions” really describe the process of a machine and do so by describing the series of steps they take when executing a program. These are really method claims, and method steps are described in terms of what they do, not by what they are.

            Thus, Lemley is fundamentally confused on software.

            Secondly, the main reason that Congress passed what is now 112(f) is because Halliburton’s dicta essentially said that one cannot use means plus function elements even to claim old elements, where the particular structure for performing a particular function is known and it is unnecessary to describe such in detail. That is why a functional expression of old elements is in fact definite.

            Finally, Mark opined that the purpose of 112(f) was authorize functional claiming at the point of novelty. Really? There is nothing in112(f) that says that. That was a gloss put on the new statute by the CCPA and by the Federal Circuit that had the overruled well-established cases to the contrary to do so.

            Thus as a whole, Lemley simply does not get it and totally misunderstands what was going on with respect to functional claiming, when it was sanctioned, when it was forbidden, and whether section 112 (f) sanctioned its use at the point of novelty when is nothing in the statute actually says that.

            1. Ned, I ran a software company for four years, and I’ve read hundreds of software patents. I agree software claims are at root “method” claims of sorts, even when rewritten in product/system claim language. However, steps of methods can be specified at a high level of generality or at a low level of generality. The question is here is whether when we specify at a high level of generality–i.e., purely or primarily functional terms with little description of the structure that carries out a particular step–should we limit the claim to the recited structure and equivalents or not.

              Putting Haliburton aside, and I realize there is some dispute over what 112(f) actually accomplished, let’s think about Lemley’s proposal in policy terms. The fact that one disagrees with him on the doctrinal specifics is not particularly relevant on the policy proposal, as Congress can rewrite 112(f) as it pleases.

              To me, it seems sound to argue that at the point of novelty, one should be limited to recited structure and equivalents if one claims at too high a level of generality. Otherwise, the claim arguably encompasses too much, even if it is technically enabled. Why? Because in those “functional” arts, i.e., arts in which specifications are characterized by a high level of generality and relatively little structure–such as software–presumably, the bar to invention is relatively low. In this event, claim scope should on average be narrower, especially for functional language at the point of invention. One way of accomplish this is to ratchet up the enablement requirement. Another way is to limit functional elements at the point of novelty to the disclosed structure and equivalents.

              As for known functional elements, I would agree as a policy matter that they should not generally be limited to recited structure. These elements are well-known and there is no loss allowing a patentee to cover all know equivalents, at least as of the time of filing. Thus, even for “means for” elements–if it’s old hat–who cares if we limit it or not? The “talismanic” approach of today, which focuses on the “magic” words “means for” and similar phrases (or simply looks for whether sufficient structure is recited in the claim) does not do much to promote our policy goal of optimal claim scope.

              In sum, regardless of the case law, I would tend to agree with Lemley that functional claiming at the point of novelty should fall under the dictates of a 112(f)-like provision, limiting scope to disclosed structures and equivalents. Otherwise, I would not. The fact that I may disagree with Lemley on some particulars is not to impugn his qualifications to make such proposals. One need not agree with Lemley to believe he’s highly qualified in this domain.

              In that regard, other commenters here believe Lemley misses the boat in the sense that his proposal would increase the length of specifications and claims. If limited to functional elements at the point of novelty, I doubt specification or claim length would be substantially increased. This, of course, is an empirical question that requires further study, but I’ve seen nothing other than bald assertions here or otherwise on the point. How about some examples to make such a claim? Perhaps then, the arguments made here will be convincing. Until then, I think as a general matter–at least on novel elements–Lemley has the better of the argument.

            2. >>Until then, I think as a general matter–at least on novel >>elements–Lemley has the better of the argument.

              I see you use the Lemley type of reasoning. That if he can create some fantasy assertion then he must be right unless you can prove him wrong. The problem with that is —and one of the reasons academics are held in such contempt — that we don’t have the time to go about writing papers and spending endless hours disabusing Lemley of his nonsense.

              So, basically Professor, you are saying logic doesn’t count. And, your casual mention of a lengthing of the specification as if it is something that is just a minor issue is absurd. You are pretty clearly illustrating that 1) you don’t understand patent law, and 2) that you have an agenda.

              It is not just a minor inconvenience to lengthen the specification. That obviously kills the patents. Expecting patent attorneys to put down everything that is known to a PHOSITA for solving a problem is outrageous.

              And, the point of novelty test is not acceptable either. Claims are to be considered as a whole. And, further, I don’t need to show you an example. The point of novelty in ee/cs and mechanical arts is the combination of elements. Seldom is a new element created. And, each element and sub problem is know. And, most patents do a good job of showing at least one embodiment of the combination of elements.

              Anyway, I can see that you have no interest in understanding this Professor. And, your attempt to come on here and out duel us is a big failure. You haven’t not addressed the substantive points put to you. Instead, you have tried to dismiss them with outrageously ignorance. You are offensive (and arrogant too.)

            3. >>Until then, I think as a general matter–at least on novel >>elements–Lemley has the better of the argument.

              I see you use the Lemley type of reasoning. That if he can create some fantasy assertion then he must be right unless you can prove him wrong. The problem with that is —and one of the reasons academics are held in such contempt — that we don’t have the time to go about writing papers and spending endless hours disabusing Lemley of his nonsense.

              So, basically Professor, you are saying logic doesn’t count. And, your casual mention of a lengthing of the specification as if it is something that is just a minor issue is absurd. You are pretty clearly illustrating that 1) you don’t understand patent law, and 2) that you have an agenda.

              It is not just a minor inconvenience to lengthen the specification. That obviously kills the patents. Expecting patent attorneys to put down everything that is known to a PHOSITA for solving a problem is outrageous.

              And, the point of novelty test is not acceptable either. Claims are to be considered as a whole. And, further, I don’t need to show you an example. The point of novelty in ee/cs and mechanical arts is the combination of elements. Seldom is a new element created. And, each element and sub problem is know. And, most patents do a good job of showing at least one embodiment of the combination of elements.

              Anyway, I can see that you have no interest in understanding this Professor. And, your attempt to come on here and out duel us is a big failure. You haven’t not addressed the substantive points put to you. Instead, you have tried to dismiss them with outrageously ignorance. You are offensive (and arrogant too.)

            4. And did you read LizardTech? Scope of enablement–boy. You see that is why you professors are held in such contempt. You are budding up with a paid blogger–Ned, who is paid to try to burn down the system. And, you are writing outrageous dismissals of problems that your proposals would create.

              Furthermore, you are trying to put the onus on others to educate you. The fact is that scope of enablment is how real patent attorneys think and understand the law. The fact is that functional claims are nothing more than saying solving this problem with known solutions according to what a PHOSITA knows. And, then the combination is enabled in the specification with one or more embodiments.

              You know what is really offensive is that you are supporting this proposal to burn the system down without trying to understand or educate yourself. So, little professor dear boy, tell–boy that had a couple of failed startups–boy—tell us —boy—how do people in software/ee/mechanical art specify real products for engineers to build? How? Boy! Using that same functional language.

              See that is why you and Lemley are so offensive. You try to negate reality and sell a change that would burn the system down and you obviously have an agenda.

              Try to respond what I said boy. You deserve no respect. I bet I have 30 IQ points on you. And, I bet I understand patent law much better than you do. Failed at graduate school, failed at start-ups, got a job from Lemley boy.

            5. Ted shovels the B$ with “The fact that one disagrees with him on the doctrinal specifics is not particularly relevant on the policy proposal, as Congress can rewrite 112(f) as it pleases.

              Putting Haliburton aside

              Halliburton was abrogated.

              it seems to me… if one claims at too high” and “arguably encompasses too much

              More pure B$. What is ‘too high?’ Who decides? What is ‘too much?’ Again, who decides?

              claim scope should on average be narrower,

              A naked assertion – or is this more ‘policy’ and philosophy than either law or fact?

              You are once again engaging in an ends-justify-the-means twisting of law to be not what it is but what you philosophically want it to be. “In sum, regardless of the case law,” – the wolf sheds the gossamer sheepskin.

              And you wonder why people are upset?

              If you cannot understand this, then the phrase Ivory Tower is spot on.

              Your pronouncement of “highly qualified” turns out to be nothing more than you agree with Lemley on a philosophical matter and that is ‘good enough.’

              It is not.

            6. Reading Ted’s defense of Lemley lawlessness reminds us exactly why academia, being most definitely not a meritocracy – and being more in line with an incestuous kiss@ss guild that rather famous historical figures have also bashed – is viewed as an Ivory Tower.

              I also see that (once again) you have not engaged the points I put before you. Is that because such points ‘don’t matter to you because Congress can write the law as they want to’? Or is it because the points offered show that Congress did write the law as they wanted to and that way that they did write the law just does not match up with how you want the law to be written?

            7. Ted Sichelman, I agree software claims are at root “method” claims of sorts, even when rewritten in product/system claim language. However, steps of methods can be specified at a high level of generality or at a low level of generality. The question is here is whether when we specify at a high level of generality–i.e., purely or primarily functional terms with little description of the structure that carries out a particular step–should we limit the claim to the recited structure and equivalents or not.

              Agreed – when the method steps are stated as results rather than as acts, they are covered by §112(f). We don’t need special interpretation of the statute. We simply need the Federal Circuit to apply the law as written. However, the corresponding structure is the method step, not the software that implements the method step.

              As to “point of novelty,” if the claim is functional at the point of novelty, certainly one §112(f) should apply. However, until In re Swinehart and In re Donaldson, one could not claim the novel structure using a functional definition or using means plus function or equivalents, because its rule of construction did not apply in the patent office and further because one could not distinguish the prior art based upon function when claiming apparatus. See, Application of Arbeit , 206 F.2d 947, 99 U.S.P.Q. 123 (C.C.P.A. 1953) (“Properties, functions, uses, and results that may appear from the defined structure are not definitions of it and may not be solely relied upon to make a claim containing them patentable unless there is a positive setting out of the structure itself in the claims which, of course, must be responsible for properties, functions, uses, and results thereof.”) Arbeit of course was overruled by Donaldson.

              Circling back to software, the essential disclosure is an algorithm, not code. When claiming software, either as a programmed computer, a method, a system, an article of manufacture, one must have sufficient support in the specification so that one may, without undue experimentation, create the program. Thus all that is required is an algorithm or the equivalent.

            8. Several facts that I invite Prof. Sichelman to ‘comment’ upon:

              Software is a manufacture and machine component, made by man for a utilitarian purpose.

              Upgrading a machine with the introduction of new software creates an improved machine.

              Software is equivalent to firmware and is equivalent to hardware.

              Come professor, venture outside of that Ivory Tower and confirm (or deny) these facts.

              Your silence will be taken as an affirmation.

            9. “The fact is that functional claims are nothing more than saying solving this problem with known solutions according to what a PHOSITA knows. ”

              So then the solutions are already known? We’re effectively giving out a patent for “problems” for which the solution is already known? Mhmmm. I see.

          4. “What’s so difficult to understand about that argument?”

            How you draw the line between function and structure. Give me the claim language and I can characterize it for you as both function and structure.

        3. prosecutors who are very much in the weeds resent those without substantial knowledge who offer up uninformed or unrealistic policy proposals.

          What’s “uninformed” or “unrealistic” about, e.g., limiting the number of continuations that can be filed, or limiting the use of functional claiming (e.g., forbidding functional claiming at the point of novelty)?

          I can assure you many, many prosecutors find nothing to “resent” in stricter rules being placed on functional claiming. Is something wrong with those prosecutors?

          1. What part of violation of rights do you not understand? (Maybe you want to revisit the Taffas case)

            Oh, that’s right – you are a “friend” of the patent system

            With “friends” like that…

            1. I understand all parts. Why do you ask?

              LOL – Is that the same way that you volunteered your admission as to knowing the controlling law regarding the exceptions to the judicial doctrine of printed matter – and then engaged in endless dissembling about even making that admission against your interests?

              Is that also like understanding the constitution and understanding which branch of the government was allocated to write patent law? like understanding that reading a map is not the same as writing that map?

              LOL – oh, do tell.

      4. his litigation experience alone–not to mention his in-depth studies on PTO practices–make him highly qualified to teach the prosecution components of that course.
        Watching other people work is not doing. Consulting for litigation is not litigating. Studying PTO practices is not practicing before the USPTO.

        Rather, focus on the proposals themselves rather than the people behind them
        We have. There has been plenty of specific criticism on Lemley’s continuation opinions and “gold-plated” patent proposal in these comments.

        Why do many law schools promote their extern programs? It is because people realize the value of experience — practicing law is far more important than studying law.

        Granted, they do not usually know the nitty-gritty of PTO practice, the contours of claim drafting, and the like. But the types of proposals academics make are usually not down in the weeds, but at a higher level of general policy.
        What you don’t realize is that the nitty-gritty details matter when it comes to the “higher level” policy recommendations. Mind you, this doesn’t just apply to patent law — it applies to all pursuits — legal, business, engineering, etc.

        When Lemley writes that continuations wear down examiners, he broadcasts to the entire (practicing) patent community that he doesn’t have a clue. When Lemley suggests “gold-plated” patents, it shows that he doesn’t understand how hard it is to predict the ultimate value of a patent. It is was that easy, corporations would be filing a lot less applications and spending much more on the applications they filed.

        1. It’s again shocking how many of you did not read my post, but are so strident in your views. First, as I stated, Lemley doesn’t “consult,” he actually litigates as a partner at law firm. And it’s very likely he’s represented far more clients than you have or ever will. In any event, “consulting” usually is pretty much the same work as actual litigators–prior art search, drafting briefs and expert reports, doing legal research, and so forth.

          Second, your statement that “we have” made criticisms is not you, yourself making any substantive claims but simply relying upon others (which most of you in the comment sections here seem to like to do–and I can assure you it’s far worse than academics citing each other–at least we attempt to spell out our arguments). Your vague assertion that Lemley “doesn’t understand how hard it is to predict the ultimate value of a patent” doesn’t negate his basic premise–that certain classes of patents, namely those most likely to be important, should be further examined. While value is certain, there are numerous metrics to use to ascertain which applications will be valuable and which ones won’t. We know certain classes of patents are litigated and licensed much more frequently than others (e.g., pharma, financial). Applicants know this and so does the PTO. In my view, forget what the applicant says–rather, start with those classes and apply more scrutiny than say patents in the mechanical arts, which are litigated much more frequently. You may disagree with the implementation specifics–but the idea is sound–let’s apply more rigorous review to those patents that matter. As it stands, the PTO does little to none of this, and it makes no sense economically. Being a prosecutor has little to do this insight.

          Yes, all public policy proposals have effects on the “nitty-gritty” details, but one needn’t know every detail to make sound reform proposals. Once the proposals are made, they should be vetted and refined with knowledge of those details, but if often requires expertise far afield from the nitty-gritty details–e.g., policy and economic expertise–to generate such proposals. This is why academics are often well-suited to looking at bigger-picture issues and suggesting larger reforms–i.e., precisely because we are not in the weeds. Most of what we suggest ultimately will require reshaping, reconfiguring, or even outright rejection. But that does not mean we aren’t well-qualified to make such suggestions in the first instance.

          Last, as to externships, all of the law firms in my program (about ten of them) almost always hire student externs who have taken patent law, and usually who have taken other patent law courses. The courses are essential to being able to gain further experience in externship programs. It’s very difficult to learn patent law well merely by practicing.

          1. Well, look, two specific criticisms of Lemley. One he says that software has no structure. That is absurd. Any software can be implemented with an equivalent special purpose computer. That is structure. How could it be that one machine has no structure and one does for two equivalent machines? Or how can it be that two machines that are structurally identical perform different functions.

            He tries to exclude from functional claims solutions that are known to a PHOSITA.

            Please. I could go on and on. I read his articles.

            1. “Any software can be implemented with an equivalent special purpose computer. That is structure.”

              But that isn’t being claimed of course.

              ” How could it be that one machine has no structure and one does for two equivalent machines?”

              I’ll tell you exactly how it “could be”. One of them is implemented via its physical structure, that is, changes in the physical structure. The other is not. Instead it is usually implemented via electrons or magnetic blips on old physical structures that aren’t changed at all. Or in some cases it’s simply transmit through a medium like the air but we need not get into that situation.

            2. that aren’t changed at all

              LOL- you really want to try your old “Britney Spears CD is the same thing as a Microsoft Operating System disk” argument again, 6?

              Really?

          2. It’s again shocking how many of you did not read my post
            I read your entire post. Actually, what strikes me the most about your post is that you have elicited so many (negative) comments from posters that rarely see post here anymore.

            he actually litigates as a partner at law firm
            So you are admitting that he has a bias. He isn’t just a tenured professor with no obligations except to his own beliefs. He has masters (if you have clients, you have masters) that dictate his opinion – from reading his writing, it is painfully obvious to see who is pulling his strings. Regardless, as I pointed out below, one doesn’t need to know anything about patents to be a patent litigator. Patent litigation is a lot of litigation mixed in with a little patent.

            And it’s very likely he’s represented far more clients than you have or ever will
            As if that means anything. He’s a well-known (anti-patent) gun for hire. For every patent litigation, there is going to be one side that is going to present his opinion.

            In any event, “consulting” usually is pretty much the same work as actual litigators–prior art search, drafting briefs and expert reports, doing legal research, and so forth
            Oh please, prior art search? There are thousands of patent attorneys enjoying a good belly laugh right now.

            your statement that “we have” made criticisms is not you, yourself making any substantive claims but simply relying upon others
            I have. Nice to see that you make don’t take the time to verify the s h i t you post before you post it.

            Your vague assertion that Lemley “doesn’t understand how hard it is to predict the ultimate value of a patent” doesn’t negate his basic premise–that certain classes of patents, namely those most likely to be important, should be further examined
            Vague? What is so vague about it? There are hundreds, thousands, hundreds of thousands of examples of companies spending huge amounts of money in manufacturing, research, marking of technologies that never amount to anything. Anybody who has been even peripherally in the business have seen plenty of examples of this. Anybody in the business recognizes that a prediction of what technology is “most likely to be important” is about as accurate as predicting how the stock market will be performing 5 years from now.

            In my view, forget what the applicant says–rather, start with those classes and apply more scrutiny than say patents in the mechanical arts, which are litigated much more frequently
            What do you mean by “more scrutiny”? Rejections are based on prior art. What people in the business know is that with prior art searching, there is a rapidly decreasing efficiency when it comes to searching. After a point, spending more time is not very efficient, and the USPTO does not have an endless amount of funds.
            What you don’t recognize is that prosecution isn’t meant to be the end-all, be-all regarding the determination of patentability. The vast majority of patents don’t get licensed or litigated so, economically, there isn’t doesn’t make sense “gold-plating” these patents. A real “gold-plated” patent is one that has gone through litigation. A patent that has gone against a motivated adversary and survived is truly “gold-plated.” A motivated adversary will spend 10x or 100x the amount of time and money invalidating a patent than that can be reasonably done at the USPTO. Moreover, the patents that receive that kind of gold plating are ones that the market has deemed to be valuable. Litigation is where gold-plating occurs – not prosecution.

            all public policy proposals have effects on the “nitty-gritty” details, but one needn’t know every detail to make sound reform proposals
            However, if you don’t know the details and the details will sink your proposal, then making the proposal makes you look pretty bad.
            often requires expertise far afield from the nitty-gritty details–e.g., policy and economic expertise–to generate such proposals
            Economic expertise? Economics? You mean those courses us engineers were entirely bored with because the math was so low-level and the concepts were so easy to understand we could do it in our sleep?
            It’s very difficult to learn patent law well merely by practicing.
            Hardly. What they teach as “patent law” is a mere scratching of the surface. I would hire, as an associate in my firm, an attorney that has prosecuted just a single patent application to an allowance over someone who has taken a half-a-dozen patent courses at the best intellectual property law school in the country yet never practiced. What interests case book writers (and professors alike) are boring issues that one very rarely ever encounters in real-life practice.

            1. ON,

              Thanks for saving me much timein responding to this bilge from Sichelman. I’m particularly affronted by his comment that “It’s very difficult to learn patent law well merely by practicing.” As one who went through my Dad’s summer IP firm “boot camp” (including 4 summers searching the “old-fashioned hard way” in the shoes, and 1 as a law clerk having my Dad hand me many cases with an Office Action and have me write a response to it), I learned much about the “practice” as well as the “patent law.” Frankly, the problem now is that too many of these law students who want to go into patent law as a career are getting only the “patent law” (as well as a biased version of it at that) and not the “practice” they’ll need to succeed in their patent law career. Having the “blind leading the blind” in how patent law is taught at many of our law schools is too much becoming the unfortunate norm. (And please do consider above those IP law professors I’ve noted who do teach patent law correctly.)

            2. But it should surprise no one that the academia “model” (guild with progression based on on well you emulate the master’s thought pattern) sounds so very much like the ‘bilge’ that Large Corp feeds the lemmings marching up the “software is maths” hill.

              Attacks from the Left.
              Attacks from the Right.

              Dust kicking as to Malcolm (once again) pretending that it somehow must be the same people who have different – but aligned – agendas in attacking the patent system. AOOTWMD as to the group-think and echo chamber effects of the “please don’t bash me” and “he’s qualified because he thinks as I think” mewling.

            3. “As if that means anything. He’s a well-known (anti-patent) gun for hire. For every patent litigation, there is going to be one side that is going to present his opinion.”

              O my god! I finally understand what these retards think of as being “anti-patent”! It’s anything someone might say/write or think that would lead to invalidation of a given patent/app!

              That explains a lot of the rhetoric coming from anon/NWPA over the last few years. It all makes sense now! I mean, it’s still just as retarded as it sounds, but at least what they’re trying to convey makes sense. From their point of view, if you’re ever attacking a patent app/patent you’re acting in an “anti-patent” manner. Lulz lulz lulz.

            4. Guttage: As one who went through my Dad’s summer IP firm “boot camp” (including 4 summers searching the “old-fashioned hard way” in the shoes, and 1 as a law clerk having my Dad hand me

              Geebus cripes, Eric, give it a rest already.

            5. 6, anyone who likes the Supreme Court is anti-patent. After all, the real reason, as opposed to the pretextual reason, for the creation of the Federal Circuit was to get the patent law into the hands of a friendly court.

          3. “And it’s very likely he’s represented far more clients than you have or ever will.”

            We know who these clients are, and that is why Lemley’s arguments are recognized as corporate troll arguments. He perhaps sucks up to every infringer in the Silicon Valley. But is it not too much to say that his client list is longer than others’? You claim to have been involved in litigation, but this is a speculative snark for which you have no foundation. It would not fly because you do not have the data to support this claim.

            Incidentally, this remark exposes the method by which you (and Lemley) do your business. Pure speculation.

            You do not know how software works, or how a software designer comes up with ideas . In spite of claims that Lemley “consults” with Google, Microsoft, and all other companies, clearly his “functional” claiming argument displays serious lack of understanding of software and how software is described not only in patent applications but also in the real world.

            For your education, software engineers describe only flow-charts, arrows with boxes without the details because people skilled in the art understand what is being said. Lemley having never been exposed to software, think this is mysterious and want to destroy the thing you do not understand. And it does not hurt if Google or Microsoft pays to do this.

            In the name of academia, you guys are basically writing trash and getting paid. What a shame!

            1. “For your education, software engineers describe only flow-charts, arrows with boxes without the details because people skilled in the art understand what is being said. Lemley having never been exposed to software, think this is mysterious and want to destroy the thing you do not understand.”

              Um we all know what they describe and what they understand as being said. So does Lemley. No physical structure is ever being talked about. No imaginary person thinks otherwise or understands otherwise. There’s nothing mysterious at all about the situation. There is only a lot of courts that have been bamboozeled in the past via sophism.

            2. You do not know how software works, or how a software designer comes up with ideas .

              Like most people of a certain age, I’ve designed and written software, starting in my pre-teen years.

              What is it about the patent teabaggers that makes them believe that the general concept of “information processing” using a computer is something beyond the ken of the typical patent attorney? Are they just stoopit, or self-deluded, or both?

    3. Thus, a long discussion of Prof. Lemley’s litigation experience in my mind makes him even less qualified to teach or discuss [prosecution] issues.

      Again, this is just asinine self-serving garbage brought to you by a person deeply invested in the status quo. None of the patent teabaggers care about Lemley’s qualifications. All they care about is discrediting Lemley and anybody else who criticizes the status quo and attempts to make it harder for the patent teabaggers to play their grifting games. That’s all there is to it. If there was more to it than that, then we would hear a lot more direct criticism of the proposals and a lot less complete bullshirt about “this person isn’t qualified to speak on that topic because he hasn’t filed 200 Responses to a Restriction Requirement.”

      Maybe the teabagger types who never went to law school and learned “everything they need to know” from IP Suckdog really do believe that patent litigation and patent prosecution are “completely different”. Those of us who have done a lot of both for many years know better. Those of us with functioning brains who appreciate the way in which prosecution affects litigation strategy and vice versa also know better.

      But the patent teabaggers who are invested in destroying the credibility of their critics don’t care about “reason.” All they care about is amplifying the sounds of their own voices, screaming “More patents makes for a better America!!!!!!” and squelching any ideas that might possibly limit their ability to get and enforce the broadest patents as easily and as quickly as possible.

  30. Keep up the great work, Mark Lemley and others.

    As everybody knows, the patent teabaggers despise having their Sooper Dooper Micromental Innovation Activities monitored or criticized by anyone. That’s why they despise academia.

    It’s also priceless watching the “great” Hal Wegner get on his knees in the pigsty. He’s been on a losing streak since Prometheus and apparently likes it down there.

  31. Interestingly, your list of professors at each school left off the one of the most qualified academicas in the country. The University of Akron’s professor Jeffrey Samuels served as the assistant commissioner of patents and trademarks of the United States Patent and Trademark Office from November 1987 to January 1993.

    1. “transformative role that these schools have played historically (for GW) and more recently (for all three schools) in elevating patent law to a prominent place in the academy and developing unparalleled educational opportunities for future patent professionals and scholars.”

      Absolutely NO PROOF these schools have made the slightest improvement to patent law. In fact, one could take the opposite position just as easily, since Sichelman has NO DATA for his claim, and in fact is highly conflicted in the first place.

      1. I can but add that I would not want to Stanford to teach me (directly) how to write my patent assignment documents… (ref: 131 S. Ct. 2188)

      2. There is substantial proof for my assertion. First, even 20 years ago, most law schools did not offer a separate course in patent law. Now, schools like Berkeley, Stanford, GW, and my own, San Diego, routinely offer four or more different courses, sometimes more (for example, we offer two sections of patent law, patent litigation, patent prosecution, biotech patents, patent law policy, and a clinic in which students draft patent applications). Berkeley, Stanford, and GW played a major role in this drive towards more patent law courses in the curriculum.

        Moreover, most of these courses are taught not by tenured professors, but by prominent practitioners. So even if you (wrongly) think we do not have much to offer, do you think the same about Chief Judge Rader (who teaches patent law at GW) or Matt Powers (who teaches patent litigation at Berkeley)?

        Second, over 100 schools have full-time patent-focused faculty not only teaching courses, but working to place students in jobs, provide internship opportunities, moot court opportunities–and, yes, write articles and make policy proposals through articles and amicus briefs. And the reality is that our proposals and briefs, unfortunately, have far less impact than the lobbyists and lawyers who are paid handsomely (much more than we could ever make by consulting part-time) to spout views and push proposals they know are wrong.

        So, in sum, there is ample data to support my contention.

    2. In making my list, I circulated it on the most popular e-mail listserv for IP professors, which presumably Prof. Samuels reads, but I never heard from him (or of him before now, for that matter–nor did over 100 other professors suggest he be included). Anyway, assuming he hasn’t retired, I’ll add him to my list. Thanks for the catch.

  32. Aside from who is able to make good policy judgment, with patent law jobs often out of reach of the law school graduate, students certainly have the right to at least know the qualifications of their patent professors. But I would imagine those are listed on the schools website. I know there are some schools that have been sued for misleading advertisements. I would imagine a student might use the fact that the professor did not have one of the most basic qualifications to practice patent law who is actually teaching a patent law course might lend some credence to the case.

    1. An argument against that view James is that there is no certifying body that has an a priori agreed list of what qualifications are necessary to have to merit any designation as you would use that designation.

      I personally know far too many litigators who fancy themselves “patent attorneys” who simply do not know enough about the patent system, the real world of innovation, the real world of “utility,” the real world of what Useful Arts pertains to, and several other factors that truly separate a patent attorney in practice from a mere title.

      Yes, law schools have a problem with ethics in its own ranks. That problem is not limited to the tiny portion of patent law.

    2. The basic patent law course does not cover patent prosecution in any detail. Any good professor with patent litigation experience can more than ably teach what’s covered in the basic patent law course. So I disagree that the absence of a patent bar reg # lends any “credence to the case” that someone is not qualified to teach patent law. Additionally, as I mentioned, most strong IP programs have a separate patent prosecution course taught by practitioners. More generally, I believe prosecutors and litigators each have unique skills and perspectives to offer students and policymakers.

  33. I don’t know why anyone would take seriously anything posted by Greg Aharonian. The guy is a know-nothing hack with respect to patents and IP.

  34. With all due respect, certain academics deserve “bashing” for providing views/articles having minimal (if any) factual or case law support, for evidencing disingenuous, flawed, and biased views reflecting no understanding of “real world” practice (and based all too often on flawed evidence, methodologies and research), and for suggesting expertise (especially technical and/or scientific expertise) they don’t possess. (And let me do say that there are also academics who I do respect that include Adam Mossoff at George Mason, Michael Risch at Villanova, Chris Cotropia at Richmond (my law school alma mater), and Janice Mueller who know what they’re talking about and have obviously “sweated the details” of the facts, law, and practice to express cogent views, whether or not I agree with them.) Put it this way: when these certains academics stop “bashing” our patent system based on flawed, disingenuous, and biased studies, methodologies, and legal research, we in the “real world” will stop “bashing” them.

      1. Just in case everybody has forgotten: AAA JJ and Eric are the two clowns who suggested here that judges who use the term “monopoly” when discussing patent rights should be impeached. Eric also had (and continues to have) a difficult time with the Prometheus decision, as did Hal Wegner and nearly everyone associated in any way with Gene Quinn’s propaganda outlet. Anybody need details? Just ask.

        Does anybody really care what these clowns think about anything?

        I don’t see why anybody should care.

          1. “Does anybody really care what these clowns think about anything?”

            More than what you think (or say), Malcolm. Once more, it matters not squat what you think. Over and out again.

    1. EG, can you be specific, please? Whose views and articles have little support, reflect “no understanding” of “real world practice,” wrongly suggest “expertise”? More specifically, why? Simply making a blanket assertion that some set of articles out there do so isn’t much help, because it provides no basis for your claim, nor does it provide any sense of the prevalence of as much. Of course, some academic views are clearly wrong, just like some lawyers’ views are clearly wrong. But who, why, and how often are the important questions.

      In my experience, most practitioners have read few to no law review articles in full. Most of their information comes from summaries of articles on blogs or news accounts that invariably leave out important details or oversimplify. As such, they unthinkingly repeat the mantra that “law review articles have little to nothing valuable to offer.” Additionally, instead of focusing on the general substance of the proposals or views, many on this blog would rather nitpick with unimportant details, missing the forest for the trees, to use a cliche. So without any specifics, why should anyone have reason to listen to you?

      Finally, how about the lobbyists and lawyers who skew the facts and law, have a distorted understanding of “real world” economics, and feign expertise? I participated in the AIA drafting process and frankly the number of people lacking any in-depth knowledge of patent law or the underlying economics related to innovation was appalling. Have you commented on them? Why not?

      1. Finally, how about the lobbyists and lawyers who skew the facts and law, have a distorted understanding of “real world” economics, and feign expertise?

        LOL – how about it? I routinely expose Malcolm for his faults. Maybe you should actually read the material before taking a position that you think supports your view (when it does not). Feel free – at any time – to express yourself on any particular actual point that you see being skewed.

        What? What? Can’t hear you professor, what?

        Your silence is deafening. Maybe it’s that ‘regardless of what Congress actually wrote – regardless of what case law interprets what Congress actually wrote thingie getting in the way of your philosophical agenda. (hint: the real world of law and fact not agreeing with you is not distortion).

  35. This will be my sign off post to this thread. These comments are to ll of the academics that post that we bloggers are crazy and unreasonable. Read the content of the posts. There are real criticisms. There is real content. The fact is that you cannot face what you have become. You are unethical false scholars that either follow demagogues or are demagogues. You are so concerned with making the extra buck outside your teaching gig that you would sell out your own mothers.

    You are a shameful ignorant group of people. And, you cannot face it.

    1. I am reading the content of the posts, and most of it is unreasonable and uninformed. As for making extra money, I can assure that everyone who teaches patent law full-time could easily make far more money practicing law full-time. The amount of money most of us make from consulting is paltry. Few to none of us take money to write articles–and I agree that that the few who do should disclose as much fully and vastly limit or eliminate the practice. But for nearly all of us teaching patent law, we are neither shameful, nor ignorant. If you’d like to cite some facts to back up your assertions, I’d be happy to address them.

      1. A couple of things I will point out. You said above to treat some patent applications differently than other patent applications. The problem I have with that and KSR is that who is going to be the one deciding which patent applications are more important? And, I would point out that under the AIA and IPRs, you effectively have the higher scrutiny for patents that are asserted now. Just think how expensive that is. I work with some start-ups. And, now can you image their shock when I tell them if they try to stop someone from copying them from using one of their newly minted patents I got them, that they may be facing a $500,000 bill at the PTO —back again!! I think it would be outrageous to add more of a burden than that.

        Now explain away Lemley saying software has no structure. Or, the ever popular pen and pencil test that is rendered absurd by the Church-Turing Thesis.

        Or, the functional claiming gambit where the solutions that a PHOSITA are left off, but added in for invalidity purposes.

        Or, why you academics don’t seem to get scope of enablement. LizardTech does a very good job of explaining how to police claim scope. And, yet we have Lemley trying invent a lame-brained scheme that would invalidate hundreds of thousands of patents that were written including solutions that a PHOSITA knows.

        I could go on….substance is what I love.

        1. Or what about the recent NY Times op-ed piece that said that software was probably natural laws. Do you believe that? I’ve had many arguments with Richard Stern about this. And I don’t think he believes it. I think he believes that it is a way to legislate information processing patents out of existence.

          And, another thing is the refusal of the academics to acknowledge that software and hardware are equivalent. Any patent attorney that writes patent applications knows that. I’ve written patent applications for consumer products that you have probably used. I’ve spent many hours figuring out how to prevent design arounds so that our large client doesn’t get taken advantage of by either a small start-up, Taiwan, China, or by the other large corporation that was licensing the product and producing many millions of them.

          1. Night, I’ve had many arguments with Richard Stern about this.

            How in the world someone of your stature would even know Richard Stern?

            1. someone of your stature

              LOL – Ned, your arrogance is showing. You are mistaking NWPA’s ‘swagger’ for insolence given that you do not agree with his viewpoint. Pretend (for a second) that you agree with him and then compare to Malcolm’s vicious rants.

            2. >How in the world someone of your stature would even know >Richard Stern?

              And what is my stature Ned? You mean someone educated at the best schools in science and law? That kind of person?

          2. anon, there is no real comparison between Night and Malcolm. One is ignorant and vicious. The other brilliant and hard-hitting.

            I could see Malcolm having a good conversation with Richard Stern because Malcolm is intelligent. I however could not see Richard Stern spending the time a day with Night.

            1. You could not be more wrong and more right at the same time.

              hint: Malcolm is ignorant and vicious.

              Take ANY of his posts, remove the ad hominem, the Accuse Others Of That Which Malcolm Does, the false spins and the other items from his short trite script and more than 99% of his posts will disappear completely.

              You fail to see this because of the issue you have of promoting anything that aligns with your agenda. This is a serious flaw that runs through all of your posts, severely lessening your own credibility. At least you try (an occasion) to hew to the law – Malcolm makes no such attempt.

            2. because Malcolm is intelligent

              Assumes facts not present. Hint: agreeing with you is not a sign of intelligence.

              Sorry if that offends your ego, but you are the one that has created that situation (as witness your elevation of 6).

            3. >> because Malcolm is intelligent

              OK Ned, I see you have decided to resort to ad hominem attacks. I think it was the paid blogger accusation that turned you mean, wasn’t it? Whenever I accuse you of being a paid blogger I have to endure days of your ad hominem attacks. I wonder why?

            4. NWPA,

              May I suggest that you modify your “paid blogger” stance slightly? Take a look at how quickly Ned has run away when I phrase that concept ever so slightly differently.

              It is beyond a doubt that Ned Heller will not finish particular conversations or even acknowledge certain items that I put before him because to do so would admit defeat for his third party interests. Time and again the merry-go-round goes round and round and Ned skirts the items I present and refuses to discuss things plainly and fully.

              There is a very good reason why posts on this blog are meant to be of a personal nature only – and Ned’s refusal to complete conversations shows exactly why.

              Do you ever wonder how Ned – with all of his self-admitted knowledge – has not solved his own personal lack of understanding in the Nazomi case? Why Ned refuses to even admit the controlling law in regards to the exceptions to the judicial doctrine of printed matter? That he refuses to recognize software as a manufacture in its own right?

              When you accuse Ned of being a “paid blogger, he will dance the pedantic dance and deny that he is paid (directly) to blog. There may be a pedantic technicality involved – point out that he is NOT posting of a personal nature – but one of paid advocacy, and he will not directly refute you.

            5. anon, actually the so-called controlling law regarding the printed matter exception is suspect given Prometheus that held 103 is not subject to “exceptions.”

  36. Hey maxdrei, just thought I’d drop you a note that I saw yet another EU pros history today. Garbage as usual. They messed up on all their art rejections, and missed the only actual anticipatory reference for one of the inds even though it was in a an american case by some of the inventors and should have been easily found.

    Great job EU!

    1. 6, I basically agree with you. For all the hype about EU prosecution, I think the best examiners in the world are at the PTO.

    1. Hmmm,

      To be considerate of the elephants (in the room), and to also consider that the entire premise of the article is one professor bashing another professor over that other professor’s work-in-progress list of professors-in-the-arts and the perception within the mind of the professor bashing the other professor that certain particular professors are being bashed because bashing the patent system need not be actually accurate, maybe we can change the designation of ivory tower to glass tower.

      One of those FAIL posters comes to mind: Being an Academic means that it is only the other guy that cannot do what you complain about and do yourself.

      Medicine has its Hippocratic oath.
      Academics has its hypocrite oath.

      1. That’s incorrect. Hal Wegner is no longer considered an “academic.” He taught at GW awhile ago, but today he is viewed as a practitioner (and works at Foley & Lardner). So my response is one of an “academic” to a “practitioner.”

        1. Talk about finding a nice tree in the wrong forest….

          (still waiting for any substantive comment to any number of my posts – this thread or as noted on the other thread…)

        2. From the Hal Wegner link in your own article to LAIPLA and its ‘about us’ page:

          ABOUT LAIPLA

          “To Educate and Connect”

          ’nuff said…?

          Maybe his bio at link to foley.com needs to remove the “Prof.” label…?

        3. (still waiting for any substantive comment to any number of my posts – this thread or as noted on the other thread…)

          5,000 plus words – and yet I am still waiting for you.

          Maybe you are first getting informed. That would be nice. But I would have thought that you would have already been informed enough in order to answer my simple points, as they go to the heart of the software is patent eligible discussion. It appears that you cannot bother with foundational facts when those facts will not support the lofty aspirations.

          Another question then for you Prof. Sichelman: do you understand what it means when someone says “the ends do not justify the means”?

  37. Thanks, Ted, for taking this on. In response to Hal W’s query yesterday, I’d sent directly names of a number international/comparative scholars but I didn’t see any of those on his final email list. I could provide those names here, but I think even my own off-the-cuff list is incomplete.

    I would say that I’m confused, but I’m not. Thanks for pointing out the work of others who are conspicuously absent.

    1. You know Professor Landers, to my mind you are not an ethical person. You are an academic. Professor Lemley is one of your great leaders. Professor Lemley does many things that are highly questionable and to my mind clearly unethical.

      One good example is Lemley saying in a journal article that software has no structure without even citing to contrary views. Lemley is not an academic but a judicial activist and opportunist. Yet you and your peers cower in front him because of his enormous power.

      Perhaps that is one of the reasons that so many people in the patent bar have so little respect for professor of IP. We see many of you are merely making a buck and using your platforms to further your personal goals with no adherence to an academic code of ethics and with no enforcement by your peers.

      That is reality. And, please Ms. Landers, tell us that the great and powerful Lemley needs someone to speak for him. The reason Lemley does not engage in open discussions regarding criticism of him is that he cannot answer some of the questions regarding his ethics.

      1. And let’s be frank. No real patent attorney could read Lemley’s paper on functional claiming without being overwhelmed with a sense that the intent is to burn the patent system down.

        So, to our minds, what we have is the “scholars” sitting back in the ivory towers making money burning the system down and then saying, come on guys show some respect. But, we know a demagogue when we see one.

        1. And, Ms. Landers, how one knows that the functional claiming paper’s intent is to destroy is that it offers no real world examples. It mischaracterizes the cases. It offers no real alternative. And, how we know most of the academics are absurd is that they cannot even think about functional claiming because they don’t even understand claims.

          Claims should cover the scope of the enabled invention. Lemley doesn’t even go over that test in his paper. That is fundamental. Lemley’s paper to real patent attorney is a parody of scholarship. Do you understand that Ms. Landers?

          The SIMPLE test is to merely look at the invention and ask how would one claim this. Without functional claims there is no way to capture all the alternative embodiments and Lemley offers no solution and wild bizarre misrepresentations.

    2. I would say that I’m confused, but I’m not.

      Dear Miss Landers,

      Please explain your rather confusing statement. What are you not confused about that you would be tempted to say that you are confused about?

      1. She may be confused about the professor / academic business model. It may be the realization that they get Paid Per Platitude.

        One could also go on explaining things like brown-nosing in academia, and ripping off students with illusory opportunities, but that wouldn’t be very civilized, after all.

        1. Perhaps the “I don’t see” malady has affected Miss Landers. That malady certainly seems to have affected Prof. Sichelman.

  38. I just want to comment on my dear friend Hal Wegner’s chart. I love Hal’s wife, a former student of mine, so I shall be gentle. Hal is is technically accurate, but somewhat misleading as applied to George Washington. For international and comparative patent perspective we have perhaps the leading figure in the world teaching the basic patent law course, Chief Judge Rader. In our comparative biotech and chemical patent law course, a co-teacher is Professor Joseph Straus, perhaps the leading patent law academic in the world. While I hold the Pedas Chair in Intellectual Property and Technology Law at George Washington, technically I do not have tenure because I negotiated a special arrangement when I moved from a tenured position at Wayne State to George Washington. Nevertheless even without tenure I have taught continuously two patent law courses each year at George Washington since 1999. I am a member of the patent bar and have been a member since 1965. I prosecuted patent applications, tried a number of patent cases, and I have testified as a patent law and practice expert in approximately 190 patent law cases. In sum, since key members of our patent law faculty like Chief Judge Rader, Professor Straus, John Whealan, the dean of IP, and I technically do not have tenure, Hal is correct. Of course Scott Kieff does have tenure, but he is on leave during his term at the ITC.

    1. All the practical experience at GWU Law School shows. We don’t see GW law professors running around making lamb-brained suggestions like gold-plated patents.

      I think what you are seeing is the patent bar fed up with academics like Lemley and non-science appointments to the Federal Circuit.

      1. “All the practical experience at GWU Law School shows. We don’t see GW law professors running around making lamb-brained suggestions like gold-plated patents.”

        No but we do see a few of them making lame-brained suggestions like the invention in the wildtangent case requiring “sophisticated programming” when in fact it takes like 16 lines of code. But at least they have the decency to keep their lame-brained suggestions to merely being mistaken on facts.

    2. Rader is part of the problem. Read the App Developers brief in CLS v Alice. That’s just a sniff of the damage Rader does every day.

      1. “Rader is part of the problem.”

        Of course he is. His intellectually honest and clearheaded is therefor highly critical of the Supreme Court vagueness and lack of clarity.

        Bilski is a case in point. Just why were the claims there abstract? Because hedging was old, because of hedging, or because of the lack of a computer implementation?

        Given such utter garbage from the Supreme Court, what is one to do but complain?

  39. Lacking a registration number or experience in technology, or business, does not prevent someone from being a good patent law professor. However, Hal is on to something: the shocking lack of USPTO experience among the professorial elite. Thus we get all sorts of policy prescriptions from people who have no idea how things actually work. Its not just the continuation rules. The usual cadre of professors came out in support of changes to RCE practice, IDS practice and the like. Currently we have a number of the professoriate promoting the “attributable ownership” rules without a concrete idea of their costs. I would have thought that some reasoned analysis of actual numbers, cases etc, instead of merely PR for a particular perspective.

    1. And yet, comments like “Ivory Tower” are immediately rejected.

      It is not small irony that such rejections are signs of Ivory Tower-ism.

    2. “Lacking a registration number or experience in technology, or business, does not prevent someone from being a good patent law professor”

      Nah, but it does contribute to them not understanding basic technical facts or having a tendency to make them up as he goes along.

      “He [Rader] received a B.A. in English from Brigham Young University in 1974 and a J.D. from George Washington University Law School in 1978.”

      “Thus we get all sorts of policy prescriptions from people who have no idea how things actually work.”

      Yeah, we’ve been getting those for a long time. That’s what’s landed us in the current overly complicated state of affairs.

      1. This is not to defend Rader, but the premise of Wegner that somehow patent credentials make a better patent professor is also ludicrous and unproven. Patent credentials don’t necessarily make a better judge, professor, examiner or counsel. Period.

        1. the premise of Wegner that somehow patent credentials make a better patent professor is also ludicrous and unproven
          Standing before you is a professional baseball player and a baseball writer. You want one to teach your kid how to play baseball. Which one are you going to choose?

          1. First of all, baseball, like patent law, is a completely boring game. Second of all, only a patent bar member would be unable to distinguish between a pitcher, catcher, fielder and hitter, instead lumping them all into “teacher”. Third, Michael Lewis is as close to a sports writer as they come. He also is a little league coach. I would definitely pick Michael Lewis as my kid’s coach before picking Alex Rodriguez.

            Have I said enough yet, or should I continue destroying your laughably false analogy? But then again, you probably know very little about baseball except what you have seen on TV, professor.

            1. only a patent bar member would be unable to distinguish between a pitcher, catcher, fielder and hitter, instead lumping them all into “teacher”.
              An obtuse statement if I ever saw one. Every player fields the ball (including the pitcher), and every player in the major leagues have hit the ball (including the pitcher). In fact, players in the majors have likely pitched at some point. Regardless, they all have been coached and seen other players coached by professional coaches.

              I would definitely pick Michael Lewis as my kid’s coach before picking Alex Rodriguez.
              Michael Lewis might have some general ideas as to how to acquire baseball players in the majors. However, A-Rod is going to be able to teach your kid proper fielding positions, throwing motions, how to grip the ball when throwing it, when to go from 1st to 3rd, how to identify whether a pitch is a curveball or a fastball, and a myriad of other things that Michael Lewis would have little clue about.

              Have I said enough yet
              I think you have — you just reinforced the notion that there are a lot of people who think they know much more than they really do.

        2. “Patent credentials don’t necessarily make a better judge, professor, examiner or counsel.’

          Mmmmm yeah, going to go ahead and disagree.

  40. Far more important than a 5-digit number, how many academics have ever participated in the patent system on behalf of a patentee (or spent time with the lawyers that do so)? Helping a client obtain financing. Making intra-company investment decisions. Negotiating with a strategic partner. Forming a joint venture. Putting together a deal between the techies, the money, and the manufacturing and distribution. A buyout deal. That’s where the economic activity is in the patent system.

    The easiest wayfor someone to deceive himself/herself into thinking one understands the patent system is to read the most-available information — cases. Second most, participating as an attorney in a litigation. But both are like the guy that’s looking for his glasses over here, when he knows that he lost them over there, because the light is better here. The amount of patent-mediated economic activity that has nothing to do with litigation is about 30-100X larger than litigation-mediated economic activity. Many years of my career, the total value of my patent-related deals — one little lawyer — has exceeded the entire damages and attorney fees of all the patent litigation in the country — litigation is a hair on the tail of the dog.

    I’ve talked to several of the prominent academics — they admit they’ve only looked at cases or talked to litigants, they’ve spent no time looking at licensing. “There’s no documentation.” Perhaps true. But like any kind of valid reseach, gathering the facts takes work. Litigation dominates the conversation only because it’s the part of the patent system where “information” (of a sort) is easy to find, not because it has any genuine relevance to the economics of the patent system.

    I contend that litigation is not data, its just sample bias. There’s no way to get an accurate knowledgeable understanding of how patents actually work when you only look at the sample bias, and ignore the data.

    One of the two major problems with our patent system is all the “mechanics” that are running around Congress and the academy selling their proposals to “fix” it, when they have no understanding of how the machine actually works.

    1. Another problem is the failure of academics to understand the real problems of companies that are trying to develop a product. I recall a meeting in which patent leadership in the Pharma companies were discussing how to limit the hundreds of millions in damage that Myriad did to portfolios, while a GW Professor was musing about some abstraction in the case.

    2. David, ditto “well said”, but I would add one matter to your comprehensive observations. During all of the discussion among academics associated with recent patent “reforms”, I was struck by the absence of any discussion pertaining to 37 CFR, the MPEP, and the plethora of internal policies promulgated by the PTO. I mention this only because so many, and to be fair not just academia, appear to stop drilling down into what comprises the body of patent law beyond Title 35. It is as if they, and other aspects of admin law, do not pertain and need not be considered.

    3. Dave,

      I ditto anon’s comment. Unless you understand “real world” practice, how can you possibly provide “fixes” for supposed “problems”?

    4. I contend that litigation is not data, its just sample bias. There’s no way to get an accurate knowledgeable understanding of how patents actually work when you only look at the sample bias, and ignore the data.

      This is why any effort at litigation reform dressed up as patent reform is doomed to failure.

    5. You forgot to ask how many of these patent academics have ever INVENTED ANYTHING COMMERCIALLY USEFUL in the first place. I would venture to say the number is close to 99.9 percent have NOT.

    6. “the total value of my patent-related deals ”

      I’d be interested to know what the term “value” is being used as a place holder for here David if you don’t mind sharing.

    7. “I contend that litigation is not data, its just sample bias. There’s no way to get an accurate knowledgeable understanding of how patents actually work when you only look at the sample bias, and ignore the data.

      One of the two major problems with our patent system is all the “mechanics” that are running around Congress and the academy selling their proposals to “fix” it, when they have no understanding of how the machine actually works.”

      You know Dave I’m willing to accept your hypothesis.

      Here’s the rub, you guys are keeping how the machine actually works hidden. This is a public entitlement program that’s underlying how this machine “works” behind the scenes. Maybe we’d all like to know just how this machine works behind the scenes and nobody’s telling.

      Sunlight, disinfectant and all that.

      1. hidden. This is a public entitlement program

        Quid.
        Pro.
        Quo.

        It’s pretty sad that you, even as professed as you are to being an examiner, continue to display such inane misunderstanding of the system.

        It’s as if you have some belief system that gets in the way of your understanding…

      2. Sunlight, disinfectant and all that.

        LOL – 6 and the FAIL of not recognizing that the same medicine should be applied to all business that affects a patentee’s rights – including examiner-SPE discussions and star chamber “quality” reviews.

        link to wtfcontent.com

    8. David Boundy, “Far more important than a 5-digit number, how many academics have ever participated in the patent system on behalf of a patentee (or spent time with the lawyers that do so)?

      “On behalf of a patentee!”

      Now we get to the real issue do we not? One tends to be biased by his experiences, and unless one represents both patentees and defendants, one will not ever completely understand the big picture.

      I am willing to bet that Lemley has never represented a patentee in his career.

  41. Of note: he is on leave since joining the International Trade Commission, but F. Scott Kieff was until recently a professor at George Washington, and he clerked for Judge Rich on the Federal Circuit and is registered to practice before the PTO. So even under Wegner’s rubric he would be a qualified academic. Full disclosure: I worked with Scott before he joined the ITC.

    However, overall I would say that Wegner’s approach, if embraced by law schools, would only continue to exacerbate the problem of credentialism in legal academia. We should judge professors on the merits of their teaching and research, not whether they spent some of their most productive years ticking off all the boxes on an ideal resume.

    I take particular issue with using a registration number as a criterion (and I say that as someone who has one). Passing the registration exam is neither necessary nor sufficient in order to meaningfully discuss patent policy, even PTO policy.

    It is not sufficient because the exam is fundamentally a test of understanding of the MPEP, not whether any of those procedures are sensible. But moreover, someone who passes the exam can promptly forget everything they learned. And of course merely having a registration number is no guarantee that the registrant ever actually practiced before the Office.

    It is also not necessary because someone can fully comprehend the MPEP and patent policy and yet not take the exam. They may not even be able to do so because they lack a technical background.

    Speaking of which, the technical background requirement ostensibly ensures that practitioners understand the technology at issue in a given case, but this is irrelevant to a law professor discussing broader policy issues because they (generally) aren’t dealing with the technological merits of specific cases. And moreover, simply using registration as the criterion glosses over someone with, say, a chemistry degree discussing a software patent case or someone with a computer science degree discussing a biotech case. Having an unrelated technical background is as irrelevant as having a degree in French literature. It does not mean that a person is unqualified to speak on the subject, only that they should consult with a subject matter expert to the extent that subject matter expertise is required.

      1. DanH,

        Your comment is bizarre.

        Many of the comments here are not addressed to the “Wegner list,” as the initial article quickly took on a life of its own. This does not signify “crazy.” It signifies a larger concern, and one that perhaps you and the author might do well to contemplate.

        1. Many of the comments here are not addressed to the “Wegner list,” as the initial article quickly took on a life of its own.

          Indeed. And one common symptom of “cr@zy” is obsessive speechifying on off-topic subjects. Another is a consistent belief that everyone is talking about you. But carry on.

          1. The cr@zy people are those that are following Lemley’s lead of continuation rules and gold plated patents.

            I guess the gold just got all you poor academics wadding along with Lemley to try to get your millions like he has.

          2. DanH,

            Your reply is equally as bizarre.

            The ad hoc discussion is hardly “obsessive speechifying on off-topic subjects” – what part of “signifies a larger concern, and one that perhaps you and the author might do well to contemplate” did you not understand?

            Secondly, the non sequitur of “consistent belief that everyone is talking about you” is not even parsable. Not sure what you are trying to say with a comment like that.

    1. If one wants to learn how to prosecute patent applications, learning from someone with long experience is important. I am not so sure that Wegner would be wrong if this was his objective – to let prospective students know whether the law school they wish to attend will give them any practical education into becoming a patent attorney.

      Much of the debate here is not been about the education of students and practicing before the patent office, but whether the professors at these various institutions are qualified to give opinions on patent law when they do not have any practical experience before the patent office or as a clerk of the Federal Circuit.

      On this issue, it clearly depends on what the opinion is about. If it is about the practice before the office, then the person giving the opinion clearly is not an expert. If it is about the relationship between the patent office and the Federal Circuit, ditto.

      But if the subject matter is the patent law, this is more about litigation and real cases involving both validity and infringement. That is where the expertise would be more important. This would suggest that Wegner should expand his criteria to include litigation experience.

      But there is another point here to consider here. Most of us believe that Lemley more often than not wrong. Yet he is often cited by the courts. May I suggest that that one of the reasons he is often cited by the courts is that he is out in front on fashionable issues, leading the charge so to speak, and not criticizing the courts after they have made a controversial decision, which is the more traditional role of academics. He takes the lead and others follow.

      The problem is that he is often dead wrong, and I give you BMC Resources is a prime example.

  42. A professor defending another professor (a millionaire trial lawyer) from “bashing”. “Bashing” meaning criticism of the millionaire’s erroneous legal understanding that he frequently offers at a very handsome price.

    This is what passes for free speech and critical thinking in the modern academy.

    Attaboy Sichelman, I hope your fellow guild member is grateful enough for your water-carrying to at least buy you lunch.

  43. The stated criticism addressed in the post is that Lemley is “one of a small army of law school academics that have built very successful . . . careers studying intellectual property law, especially patent law, albeit without ever actually having practiced before a patent office, done research, or even studied science or engineering.” The implicit criticism is that Lemley is spouting about issues of prosecution about which he knows very little, and therefore his ideas are often misguided.

    The supposed defense is:

    1) Lemley et al. have significant litigation experience. But this defense merely buttresses the original point. Arguing that Lemley has experience in a different area does not address the original criticism that his ilk lack prosecution experience.

    2) Many patent law professors “have spent numerous hours writing casebooks and patent law practice guides.” Again, argument does not contradict the original criticism. Merges may have written a great casebook, but that doesn’t necessarily make him an expert on prosecution.

    Reform proposals can come from all corners, and one does not necessarily need to be an expert in an area to suggest valid reform proposals. The larger point is that those who tend to offer the most prosecution proposals, and speak most loudly, have little actual knowledge about prosecution and tend to offer poorly thought out or misguided proposals. Lemley’s continuation rules proposal and his more recent statements about patentable subject matter provide ample support for this viewpoint.

    1. spot on. Lemley is notoriously wrong in areas of PTO policy, and is downright dangerous for the bio-pharma industry.

        1. And thats the point: he makes policy prescriptions for the entire patent system, including the biopharma and chemistry sections, but his medicine would kill that patient.

          When a client asks me a question about their business, I can advise them on patent and regulatory law, and some licensing and strategy issues. But if he wanted to ask me about public listing of his company on NASDAQ, I will refer him to a colleague. I know my limits, and bad advice is bad for the client. I’d hope that Professors know their limits, but instead write authoritatively without considering the bad effects of their bad advice.

    2. May I also added fuel to the fire. The only support judge Rader had for his decision in BMC Resources was a law review article by Lemley about divided infringement. Lemley of course was completely wrong, and that diverted the Federal Circuit into a mistake, that has led to the incredibly wrong decision that inducement does not need direct infringement, a decision that is now on appeal to the Supreme Court.

      But the source of all this chaos is Lemley.

        1. One thing leads to another, methinks:

          There was an old woman who swallowed a fly
          I don’t know why she swallowed the fly
          I guess she’ll die!

          There was an old woman who swallowed a spider
          That wriggled and squiggled and tickled inside her
          She swallowed the spider to catch the fly
          I don’t know why she swallowed the fly
          I guess she’ll die!

          There was an old woman who swallowed a bird
          She swallowed the bird to catch the spider
          that wriggled and squiggled and tickled inside her
          She Swallowed the spider to catch the fly
          I don’t know why she swallowed the fly
          I guess she’ll die!

          There was an old woman who swallowed a cat
          She swallowed the cat to catch the bird
          She swallowed the bird to catch the spider
          that wriggled and squiggled and tickled inside her
          She Swallowed the spider to catch the fly
          I don’t know why she swallowed the fly
          I guess she’ll die!

          There was an old woman who swallowed a dog
          ….

          There was an old woman who swallowed a goat
          ….

          There was an old woman who swallowed a cow
          ….

          There was an old woman who swallowed a horse
          She died of course.

      1. Actually, Ned, there is indeed support for the proposition that inducement does not need direct infringement by a single actor. As my amicus brief in the Supreme Court’s opinion in Global-Tech makes clear, the law of inducement derives essentially from aiding-and-abetting/contributing to a tort.

        Torts, of course, can be performed by multiple parties. Specifically, under the traditional rule of joint liability, if more than one person is a proximate cause of the plaintiff’s harm, and the harm is indivisible–which it would effectively be for multiple parties contributing to a direct infringement under patent law–then under the traditional approach each defendant would be liable for the entire harm.

        Rightly or wrongly, patent law has dispensed with direct liability for multiple actors. However, as we know from eBay remedies and rights, or in alternative terms, liabilities and duties are not one in the same. Thus, multiple parties contributing to direct infringement can–if refer back to the tort basis for inducement–easily serve as the underlying infringement (i.e., tort) for which the inducer is subsequently held liable. This is so even if the parties contributing to the direct infringement (i.e., tort) are not held liable.

        So it is not quite precise to say that BMC eliminated the direct infringement requirement for inducement, at least if we return to the tort law roots of inducement. As I explain in my brief, the 1952 Act did not change as much. The Supreme Court’s opinion in Aro II (despite it’s faulty holding ultimately) makes this clear–namely, that the 1952 Act essentially codified the pre-1952 case law (other than some aberrant cases in the 1940s, e.g., Mercoid, which we were effectively overruled by the Act) with respect to inducement. If this is so, then the tort law rationale I just enunciated is quite sound.

        Do I expect the Supreme Court to follow it? Well, given their missteps in Global-Tech, probably not, but I believe the AIPLA has argued similarly in their amicus brief, and we can only hope for the best.

        1. Ted Sichelman , perhaps you misunderstood my point. BMC Resources was wrongly decided. Even in the multi-actor situation, there is a direct infringer. There always has been. It is the person who performs the last step in the process – where all the other steps have been performed on the intermediate product. That has always been the law prior to BMC Resources.

          People who perform part of the steps prior to the final step, providing the intermediate product to the finisher with knowledge that the finisher will in fact finish, are contributory infringers.) This same logic works in a system.

          My beef with the Federal Circuit opinion in Akamai is continuing this mistake of BMC Resources – that one all the steps are performed in a process that there is no direct infringement. That is simply not true.

          1. Ned,

            You still have a problem with the Univis Lens case, where the last step does was not the direct infringer based on the fact that the patent was considered exhausted prior to that last step.

            1. Ugh!

              There is no exhaustion, anon, unless the activity that causes the exhaustion would, if performed by other than the patent or his licensee, infringe.

            2. The point the Court made in that case was that the last step was immaterial to whether or not “the invention” was subject to the sale point (the point that induced exhaustion) prior to that last step being performed. The item was exhausted prior to that last step. This is a plain fact of the case.

  44. I hardly think that Prof. Lemly is “uniquely qualified to write about and teach patent law.” What exactly makes him “uniquely qualified”? His practice? His articles? He’s certainly written a lot of articles, but I, and many others, have written as many, if not more, and in many instances many more, patent applications than he has. Does that make me, or any other practitioner, “uniquely qualified” to write about and teach patent law?

    I don’t have any problems with him teaching, writing, and/or practicing, but I do understand other’s concerns that when he writes an article as “Prof. Mark Lemley, the William H. Neukom Professor of Law at Stanford Law” is he really writing the article as an academic, or an advocate for his clients? I give him the benefit of the doubt and when I read one of his articles I don’t assume he’s got an agenda. I will say some of his articles read as if he’d formed his conclusion before he started “researching” and then writes whatever is necessary, regardless of the outcome of the research, to support his foregone conclusion.

    My problem with Lemley is that he just doesn’t know what the heck he’s talking about when it comes to actual patent preparation and prosecution. Or technology. Paul Morgan’s critique of Lemley’s “gold plated patent” proposal is a perfect example. The criticism of Lemley’s “conclusions” in that “ending continuation abuse” article are all valid. That article is so riddled with errors, from Lemley’s complete misunderstanding of how the examiner production (i.e. count) system works to his insistence on quoting those thoroughly discredited Quillen numbers, that it is essentially a waste of paper. There isn’t a single conclusion in that article that’s even remotely correct. The other problem I have is that when these errors are pointed out to him, there doesn’t seem to be any effort by him to reconsider his conclusions, or even ackowledge that his conclusions may be based on “data” that is just plain wrong, or maybe doesn’t even exist. One would think that an academic would welcome questions and seek to answer them to bolster their findings and conclusions. I don’t see any of that from Lemley.

    I read his article on functional claiming and it’s very clear that Lemley has no understanding of the technology he’s discussing. Aharonian does a great job of pointing out Lemley’s foibles when it comes to technology. I recommend subscribing to Greg’s emails. They are quite funny. And enlightening.