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.

742 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. 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. 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. 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.”

            2. 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.

            3. 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?

            4. 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.

            5. 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”)

            6. 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…?

            7. 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.)

            8. 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’)

            9. >>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.

            10. 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)

            11. 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.

            12. 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.

            13. 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.

            14. 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.

            15. 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.

            16. 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.

            17. 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.

            18. 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.

            19. 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.

            20. 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?

            21. 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.

            22. “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).

            23. 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?”

            24. 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.

            25. 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.

            26. 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.

            27. 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.

            28. 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).

            29. 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.

            30. 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.

            31. 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.

            32. 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 😉

            33. 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.”

            34. 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. 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.

      2. “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?

      3. 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?

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