Alice v. CLS Bank: Claims Invalid Under Section 101

By Jason Rantanen

Alice Corporation Pty. Ltd. v. CLS Bank International (2014)

Download opinion here: Alice v CLS

This morning the Supreme Court issued its opinion in Alice, unanimously affirming the Federal Circuit and finding all claims drawn to patent ineligible subject matter under Section 101.  Justice Thomas wrote for the opinion for the Court.  It begins:

The question presented is whether these claims are patent eligible under 35 U. S. C. §101, or are instead drawn to a patent-ineligible abstract idea. We hold that the claims at issue are drawn to the abstract idea of intermediated settlement, and that merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention.

The opinion includes both the actual language of representative claims (in a footnote) and the court’s interpretation of them (in the body of the opinion).  The latter is primarily what the court focuses on:

In sum, the patents in suit claim (1) the foregoing method for exchanging obligations (the method claims), (2) a computer system configured to carry out the method for exchanging obligations (the system claims), and (3) a computer-readable medium containing program code for performing the method of exchanging obligations (the media claims). All of the claims are implemented using a computer; the system and media claims expressly recite a computer, and the parties have stipulated that the method claims require a computer as well.

The Court next summarizes the long-standing nature of the law of nature, natural phenomena, and abstract ideas exception to patent eligibility, and reiterates that these exceptions are driven by a concern about pre-emption, balanced against caution in allowing the exceptions to swallow all of patent law:

Accordingly, in applying the §101 exception, we must distinguish between patents that claim the “‘buildin[g] block[s]’” of human ingenuity and those that integrate the building blocks into something more, Mayo, 566 U. S., at ___ (slip op., at 20), thereby “transform[ing]” them into a patent-eligible invention, id., at ___ (slip op., at 3).

Next comes the first key part: the Court reiterates the framework described in Mayo v. Prometheus, including the inventive concept language:

In Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U. S. ___ (2012), we set forth a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts. Id., at ___ (slip op., at 8). If so, we then ask, “[w]hat else is there in the claims before us?” Id., at ___ (slip op., at 9). To answer that question, we consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent-eligible application. Id., at ___ (slip op., at 10, 9). We have described step two of this analysis as a search for an “ ‘inventive concept’”—i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Id., at ___ (slip op., at 3).3

Applying this framework, the Court first found the claims directed to an abstract idea.:

On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk. Like the risk hedging in Bilski, the concept of intermediated settlement is “ ‘a fundamental economic practice long prevalent in our system of commerce.’”

It then concluded that the claims also failed the second step: “the method claims, which merely require generic computer implementation, fail to transform that abstract idea into a patent eligible invention.”

Here’s the second piece of key language, which relates to the computer-implemented nature of the claims:

These cases [MayoFlook, Benson, and Diehr] demonstrate that the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it’” is not enough for patent eligibility. Mayo, supra, at ___ (slip op., at 3). Nor is limiting the use of an abstract idea “‘to a particular technological environment.’” Bilski, supra, at 610–611. Stating an abstract idea while adding the words“apply it with a computer” simply combines those two steps, with the same deficient result. Thus, if a patent’s recitation of a computer amounts to a mere instruction to“implemen[t]” an abstract idea “on . . . a computer,” Mayo, supra, at ___ (slip op., at 16), that addition cannot impart patent eligibility.

It is irrelevant that a computer is a physical object:

There is no dispute that a computer is a tangible system (in §101 terms, a “machine”), or that many computer-implemented claims are formally addressed to patent-eligible subject matter. But if that were the end of the §101 inquiry, an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept. Such a result would make the determination of patent eligibility “depend simply on the draftsman’s art,” Flook, supra, at 593, thereby eviscerating the rule that “‘[l]aws of nature, natural phenomena, and abstract ideas are not patentable,’” Myriad, 569 U. S., at ___ (slip op., at 11).

Applying this standard, the Court concluded that the claims at issue here did nothing “more than simply instruct the practitioner to implement the abstract idea of intermediated settlement on a generic computer.”  Slip Op. at 14.

Note that the Court’s ruling applies to the method claims, the computer system claims, and the computer-readable medium claims.  Here’s the third bit of key language; I predict it’s going to tie folks in knots:

As to its system claims, petitioner emphasizes that those claims recite “specific hardware” configured to perform“specific computerized functions.” Brief for Petitioner 53.But what petitioner characterizes as specific hardware—a“data processing system” with a “communications controller” and “data storage unit,” for example, see App. 954,958, 1257—is purely functional and generic. Nearly every computer will include a “communications controller” and “data storage unit” capable of performing the basic calculation, storage, and transmission functions required by the method claims. See 717 F. 3d, at 1290 (Lourie, J., concurring). As a result, none of the hardware recited by the system claims “offers a meaningful limitation beyond generally linking ‘the use of the [method] to a particular technological environment,’ that is, implementation via computers.”

Put another way, the system claims are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer;the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] . . . against” interpreting §101“in ways that make patent eligibility ‘depend simply on the draftsman’s art.’”

Justice Sotomayor, joined by Justice Ginsburg and Breyer, agreed that the method claims here were drawn to an abstract idea, but concurred to express agreement with Justice Stevens’ view in Bilski that a “claim that merely describes a method of doing business does not qualify as a‘process’ under §101.”

 

 

778 thoughts on “Alice v. CLS Bank: Claims Invalid Under Section 101

  1. Ned,

    It hurts me greatly that you would choose to answer anon’s later post over my earlier post.

    However, I feel compelled to answer your question re who would claim math. I do so with some examples and links:

    US 3851162 A

    1. In a method for continuous analog analysis for a time varying input function flt) in the time domain into at least one of its Fourier Frequency components C,,,(t) the steps of:

    continuously producing N signal components f (t)/N ranging from f (t)/N to f ,(t)/N wherein each signal component except f (t)/N is delayed an amount T from the previous signal component;

    continuously combining separated ones of said signal components [f,,,(t)] f (t)/N together so as to produce at least one continuous output function C,,,(t) corresponding to one of the Fourier frequency components of the time varying input function flt) to be frequency analyzed.

    link to google.com

    US 8724716 B2

    1. A method for an Inverse Fast Fourier Transform (IFFT) in a communication system, the method comprising:
    determining an IFFT size based on a number of input information symbols, the IFFT size being the smallest power of two (2) that is greater than or equal to the number of input information symbols; and
    performing an IFFT operation based on the determined IFFT size,
    wherein the performing of the IFFT operation based on the determined IFFT size comprises:
    determining a number of butterfly corresponding to the determined IFFT size, and
    performing a butterfly operation based on the number of butterfly,
    wherein the butterfly operation includes processing the information symbols based on corresponding at least one of radix-22 and radix-2 patterns.

    link to google.com

    US 6003056 A

    1. A method for computing one-, two- or three-dimension FFTs comprising the steps of:
    a. selecting a FFT to be computed, said FFT having a known size;
    b. formatting said FFT in dimensionless format; and
    c. implementing said dimensionless formatted FFT for computation by a computing apparatus, wherein said implementation enables said FFT and its other dimensional equivalents to be calculated using the same basic implementation.

    link to google.com

    Really, there are just too many to post. Google/patent :method of Fourier transform and peruse the over 7 million hits …

    1. Les, the earlier patents tied the math to analog circuits which necessarily operated on physical signals. The later patents simply recite a computer.

      I think the later patents are invalid while the earlier are valid. Math plus computer have not been valid since Benson, and that the PTO would allow such patents to issue on the say so of Rich in Alappat (dicta) is really sad.

      1. I don’t understand why you don’t want to promote the progress of the art of signal processing. Each of these inventions seems to be a step forward in the ability of mankind to communicate and I am happy that the world is set up to encourage them.

        US 6718038 B1
        1. A method of encryption, comprising the steps of:
        a) receiving a signal to be encrypted, where the signal has a length;
        b) establishing at least one encryption key, where each at least one encryption key includes at least four user-definable variables αi, βi, γi, and δi, where αi represents an angle of rotation, where βi represents an exponent of time t, where γi represents a phase, where δi represents a sampling rate, where n<αi<n+1, where n is an integer, where γi+(1/δi)<t<γi+(the length of the signal)/δ i, and where the length of the signal is greater than δi;
        c) selecting at least one modified fractional Fourier transform function, where each at least one modified fractional Fourier transform function corresponds to, and is defined by, the corresponding at least one encryption key; and
        d) multiplying the signal by the at least one modified fractional Fourier transform function selected in step (c).

        link to google.com

        US 8516027 B2

        1. A computer-implemented method for generating a fast fourier transform (FFT) comprising the steps of:
        a. receiving a signal data;
        b. storing the received signal data in a first memory storage device; and
        c. processing the stored signal data using a processor, said processing comprising the following steps:
        separating the stored signal data into a first partial signal comprising the least significant bits (LSB) of the stored signal data and a second partial signal comprising the most significant bits (MSB) of the stored signal data;
        performing FFT on said first and second partial signals to produce a first and second output;
        right bit shifting said second output; and
        summing the right bit shifted second output and said first output into a single bit stacked output.

        link to google.com

        US 8145443 B2
        1. A Fourier transform-based phasor estimation method, comprising:
        sampling an input signal and separating samples of one-cycle data of the input signal into at least two groups of samples;
        executing a Discrete Fourier Transform (DFT) with each of the sample groups;
        calculating a difference between results obtained from the DFTs executed with the sample groups, and calculating a DC offset component included in the input signal on a basis of results of the difference between results obtained from the DFTs;
        calculating an error caused by the DC offset on the DFT using the calculated DC offset component; and
        estimating a phasor of a fundamental frequency component included in the input signal by eliminating the calculated error, caused by the DC offset, from the results of the DFT.

        link to google.com

        US 8140606 B2
        1. A method of reducing data transmission loss after an occurrence of a transmit path failure in a wireless communication network, said wireless communication network comprising a base-station that comprises a Fourier transform matrix configuration, wherein the Fourier transform matrix configuration comprises at least one digital Fourier transform matrix and at least one analog Fourier transform matrix, said at least one digital Fourier transform matrix and said at least one analog Fourier transform matrix comprising a first, a second, and a third sector signal path and comprising a first, a second, and a third transmit path between said at least one digital Fourier transform matrix and said at least one analog Fourier Transform matrix, the signal paths each comprising first, second, and third gains, respectively, and first, second, and third phases respectively, the method comprising:
        detecting by a controller, a reduction in amplitude of a signal from a transmit path between a first digital Fourier transform matrix and a first analog Fourier transform matrix;
        reconfiguring, by the controller, the first digital Fourier transform matrix to a pass-thru mode by replacing usage of an input table with usage of a pass-thru table; and
        re-routing, by the controller, the first analog Fourier transform Matrix to a pass-thru mode;
        coupling an output of the first analog Fourier Transform matrix with an output of a second analog Fourier Transform matrix; and
        transmitting the coupled outputs.

        link to google.com

      2. Math plus computer have not been valid since Benson

        Absolutely Wrong: Ned, need I provide that quote that I have provided so many many many times?

        You are over-reading yet again.

      3. As to Alappat, please, Ned, I schooled you many times on that case, the last time using the explicit definition from Black’s Legal Dictionary.

        Must you insist on riding your CRP merry-go-round?

      4. Les, while there may be exceptions, all the claims you present are limited to signals, to circuits in the context of a larger machine or system.

        Since at least Alappat, such claims do not seem to have a 101 problem.

        You seem to want to argue for patenting math in the abstract. But you only present claims that are otherwise applied and do not seem to be math in the abstract.

        Now, that being said, the courts may go so far as to hold unpatentable claims only to math + signals as not being “enough.” It still would be good to show the use of the math in a larger system or machine and claim it in that context.

        1. Ned,

          Further, as I have shared, encryption is not dependent on machines at all – an oral conversation strictly between two people can employ encryption.

  2. Since Ned did not get the memo and insists on using case law that is pre-1952 changes, this bears repeating, adding in the new phrase he is pretending not to understand:

    “Inventive concept”, “inventive gist”, “invention”, “spirit of the invention,” “patentable novelty” and many more myriad terms were used and abused by the judiciary in a previous era, an era that Congress had allowed the courts the power and authority to define “invention” by the tool of common law evolution.

    The Court took on a decidedly anti-patent stance in the 1930s and 1940s, prompting a comment that “the only valid patent was one that had not yet appeared before us.”

    Congress reacted and smacked the then-overtly anti-patent Court down, EXPRESSLY removing from that court the power and authority to set invention by common law judicial power. Congress created 101 as an open gate to patent eligibility and moved a portion to 103 under patentability. They did this in 1952.

    This is all historical fact.

    I have previously supplied the congressional record, points from Frederico and the notes to 103 as listed at the Cornell law sight verifying these facts.

    The Court has snubbed Congress – and has snubbed the very constitution it is meant to protect by doing so. The Court has tossed aside the explicit words of Congress and returned to its power hungry days of pre-1952.

    People celebrating may be doing so for their own personal reasons and beliefs. Celebrate then your immediate joy.

    But those that have sworn a state oath – those attorneys among us – should realize that our respective oaths are not to the Supreme Court, but to the Constitution. So no matter if the decision today fits with your own personal desires regarding patent law and how you may want it be – or not, today should be a day of great sadness for the respect and duty sworn to the ultimate law of our land.

    1. Simple question, anon, in passing the 52 act that Congress intend to overturn the printed matter doctrine, or for that matter the business method exception, both of which were based upon the principle that they were nonstatutory, meaning, they were neither a manufacture, machine, composition or Art?

      Answer this simple question please. No evasions.

      1. ARGH.

        Stop the AOOTWMD with “evasion,” as it is you Ned that have evaded my lesson to you and your insistence on choosing to be ignorant on what the exceptions to the judicial doctrine of printed matter really means.

        You are in plain error on printed matter as you continue to try to have Set B take the place of Set A, and you continue to ignore that Set C makes all the difference in the world.

        As to your continued error with business methods, 3, the new 4, is STILL not 5.

        (at least you attempted to include the fourth category here, baby steps I guess)

          1. Lol – projecting ‘control’ in a situation where there is a right way and a wrong way – 6’s tired and trite way of trying to control me (and embrace his subjective anything goes CRP)

            Yes 6, right on cue indeed.

            How about we talk about real law here – you can hold your anything goes whatever law discussions in Malcolm’s basement.

            1. you can hold your anything goes whatever law discussions in Malcolm’s basement.

              I’m pretty sure we can hold just about any discussion about patent law or policy right here, unless there is a dramatic change in how the comments are regulated.

              This isn’t your buddy G’s place, you know, where unpleasant facts and failure to kiss the emperor’s feet result in banishment. By the way, I think G needs his buttons polished again … they’ve begun to rust from all his crocodile tears these past few days. I assume you’re available …?

      2. Put your spurious (and wrongly stated) printed matter question aside Ned and address the facts.

        Stop trying to kick up dust with your wrong Russell version and your pre-1952 Guthrie citation which clearly show the reason why Congress acted as it did.

        Your own cite show that you are trying to move the law backwards in time and you are trying to ignore the actions taken by Congress.

        1. pre-1952

          60+ years ago.

          I’m curious: when was the first time someone tried to patent one of these b.s. “on a computer” claim? When was the first one granted?

          I don’t recall a big rush to patent “new” punch-cards based on their “functionality.” What took so long exactly?

          1. Did you have a point that you wanted to make there? Perhaps you (like Ned) would like to visit the archives and see that article about certain claim types that have been granted throughout the history of the U.S. patent system before you formulate a “policy”/opinion that you want to share?

          2. Or perhaps you and Ned want to clench tight your eyes to the lesson that history provide – yes even 60+ years ago…

            (You know, because the facts of that historical lesson have not been shared.. Oh wait – they have been.)

    2. “Congress reacted and smacked the then-overtly anti-patent Court down,”
      The Patent Act of 1952 was not a reaction to judicial overreach. It was part of an ongoing effort to organize the laws enacted by Congress into a more apprehensible structure — rather than have just a flat chronological listing of the laws as they were previously recorded in the Revised Statutes, a more sane permanent record of the laws, organized by subject matter, was sought. This undertaking was started unofficially in 1870 and the project became official in 1927 (in 1952 it was about 25% complete).

      “Congress created 101 as an open gate to patent eligibility and moved a portion to 103 under patentability. They did this in 1952.”
      There was no “open gate” created in 1952; Section 101 of the United States Code contains effectively the same wording as the original statute.

      Corresponding Text in Original Revised Statute 4886:
      Any person who has invented or discovered any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof, … may, … obtain a patent therefor.

      USC Title 35 Section 101:
      Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

      Furthermore, the provisions of Section 103 were not “moved” there from the original statutes; they had not existed previously.

      From the Judiciary Committee Report:
      “Section 103, for the first time in our statute, provides a condition which exists in the law and has existed for more than 100 years, but only by reason of decisions of the courts. An invention which has been made, and which is new in the sense that the same thing has not been made before, may still not be patentable if the difference between the new thing and what was known before is not considered sufficiently great to warrant a patent. That has been expressed in a large variety of ways in decisions of the courts and in writing. Section 103 states this requirement in the title. It refers to the difference between the subject matter sought to be patented and the prior art, meaning what was known before as described in section 102. If this difference is such that the subject matter as a whole would have been obvious at the time to a person skilled in the art, then the subject matter cannot be patented.

      “That provisions paraphrases language which has often been used in decisions of the courts, and the section is added to the statute for uniformity and definiteness. This section should have a stabilizing effect and minimize great departures which have appeared in some cases.”

      So rather than being a smack down of the rulings of the courts, Congress was endorsing them and codifying their basis into the law.

      1. saul,

        You are late to the party and apparently have missed most of the ongoing conversation.

        Your view of 103 not being moved, but being created anew – explicitly misses the point of what was being eliminated from the judicial ability: the common law approach to develop the definition of “invention,” gist of the invention,” “Inventive concept,” “spirit of the invention,” “patentable novelty,” ad nauseum – Congress explicitly chose a different path. This is well-documented, yet somehow you miss this compeltely.

        Yes there was also codification going on – but you miss the entire picture and are flat out wrong to think that ONLY codification was going on. Open gate is precisely what Congress wanted: this is captured in 35 USC 100 (note the definition of process – the last section is expressly NOT a codification of rampant judicial anti-patent themes of the day). To say otherwise – as you do – with no support whatsoever is a clear attempt to disregard reality and attempt to rewrite history.

        You repeat the words of the record concerning 103 in apparent ignorance of what those words actually say. Ask yourself, WHY Congress would act – would need to act – to input a stabilizing effect and minimize the great departures if this was anything even close to a “mere codification”…? Your “no change here” is just not sustainable whatsoever.

        You also do not seem to grasp the significance of Congress setting this portion of what was previously understood to be within 4886 as a separate section apart from 101 – notwithstanding the words chosen. It may be difficult to see with the huge cloud of dust that has been kicked up, but Congress really did act to create a difference between patent eligibility and patentability. Do you even recognize that fact? Congress was reacting to the Courts misuse of their words. They need not change the actual words of 101 to correct that misuse. The record is clear as to how they approached that correction. You yourself repeat that approach, yet fail to understand what you parrot.

        1. … you miss the entire picture and are flat out wrong to think that ONLY codification was going on.

          I might have been wrong had I actually said such a thing.

          Open gate is precisely what Congress wanted: this is captured in 35 USC 100 (note the definition of process – the last section is expressly NOT a codification of rampant judicial anti-patent themes of the day).

          Your analysis is markedly removed from the reasoning presented in Federico’s Commentary, wherein the following explanation of Section 100 is provided:
          This and other definitions illustrate the fact that definitions in a statute are not necessarily of the same character as dictionary or other definitions which explain the meanings of words, but are usually merely means of avoiding the use of several words or long phrases. The old statutes used the phrase ‘invention or discovery,’ ‘invented or discovered,’ and the like in many places, and the purpose of the first definition is to enable a single word to be used instead, but with the same meaning as the longer phrase.

          1. Actually my analysis is not removed and integrates Frederico with a more on point analysis.

            Also, you quite neglect Frederico’s commentary in that he expressly states that codification is not the only thing going on (which I see you are attempting to backtrack from. Maybe you want to amend your first post, saul? Keep in mind the lesson offered here for you: 101 may have used the same or nearly the same words as the previous section, but the Court’s misuse of those words was noted and further actions taken.

            Thanks for playing. Try to keep up.

            1. Actually my analysis is not removed and integrates Frederico with a more on point analysis.

              Your analysis was that the definitions of Section 100 were nailing down the terms’ meanings in order to prevent the courts from employing common law to derive them. Federico’s was that the definitions of Section 100 were a stenographic shorthand to reduce repetition of long phrases in the Title and increase readability. There is no congruency between these to views. These “definitions” were not altering the meaning of the terms from their original usage in the Revised Statutes, and to accept them in the traditional dictionary approach to word definition produces the ludicrous result of defining something in terms of itself (e.g., “an invention is an invention…”, “a process is a process,…”)

              You’ve presented this narrative whereby Congress enacted the Patent Act of 1952 in response to an out of control judiciary, but you provide little evidence to support this. The creation of Title 35 was planned a quarter century previously, along with fifty other titles of the U.S. Code, and probably would have taken place sooner if not for interruptions caused by the Great Depression and the Second World War. I did not, and would not, say that Title 35 introduced no changes to patent law — I specifically pointed out one such change (another was the elimination of the requirement that patentees must reject invalidated claims to retain protection for remaining claims) — but these changes are not indicative of Congress being dissatisfied with the behavior of the courts.

              Your analysis of Section 100 is faulty and incongruent.

              You misrepresent the language of Section 101 as demonstrating a change in the statute.

              You ascribe the introduction of Section 103 to the courts having “snubbed” Congress, yet 103 actually codifies what the courts had been doing. While the courts may have exceeded their authority by previously taking into account “obviousness” in determining patent validity, that they’d been doing this for 100 years without Congress taking action argues against your hypothesis (and the “minimizing great departures which have appeared in some cases” could just as conceivably been reference to Congressional dissatisfaction with obviousness not being considered to the extent they’d wished).

              Finally, you mention a (judge’s?) comment, “the only valid patent was one that had not yet appeared before us.” Who said this? In what context? Is it known to have been considered by Congress? A web search of the exact phrase results only in your own citation. If it is a paraphrase, could you provide a link to where it might be further researched?

              1. My analysis is far more accurate than you seem capable of realizing saul.

                I reference not only sections 100 and 101, but 103. I have previously supplied the law, Congressional writings on the law, Frederico’s comments on the law, and Cornell Law notes on the law. Little Evidence? Flat out wrong, you are.

                As I said, you are late to the game here and need to catch up. You are falling further behind with your incorrect assessment of my assessment. You continue to mistake the fact that codification was an aim with the notion that ONLY codification was going on. You ignore the fact that I acknowledge that there was codification going on. Your position is the one that lacks any sense of critical assessment. The defining of a term to include itself is odd when you ignore the historical context of the day – the very thing that I point out and the very thing that you are oblivious too.

                Those that do not understand history are bound to repeat it. You clearly do not understand the history here. The feelings of Congress are historical facts.

                Yes, my statement is a paraphrase, but your search ability is CRP (are you an examiner?). The phrase is a well known phrase and reflects properly the context in which I use it. That you do not even know the phrase speaks more to the shambles that is your position than you realize. You confirm your ignorance and you confirm that your critique is indeed worthless. The phrase was said by a certain Supreme Court Justice who was candidly assessing the activism of several of his fellow Justices in the heyday of anti-patent action.

                Wake up son. Do your homework first – THEN partake in some critical thinking. Your shoot first and aim second methodology paints you as an amateur.

              2. Saul, the attitude it anon expresses was held by Judge Rich, and was some of held by Judge Rader – to see is concurring opinion in Alice. Turning back to Judge Rich, if he did not find support for a judicial proposition in the ’52 Act, time and again he in the CCPA, and the Federal Circuit either ignored those pre-’52 cases or overruled them. I give you Tarczy-Hornock and In re Donaldson as two examples. There are a lot, lot more. In this way, Judge Rich took it upon himself to rewrite patent law.

                In to a large extent the Supreme Court has allowed the CCPA and the Federal Circuit to have its way. Perhaps they respect that the court, Congress and Judge Rich. But in the area of software and computers, it is clear that Judge Rich and the Supreme Court never saw eye-to-eye.

              3. @ Ned Heller,

                Thank you for your response. I will research those earlier cases this weekend when I have some free time. I am fairly familiar with the later rulings but will revisit them as well.

                Nonetheless, what you’ve said appears to run counter to the narrative that Congress passed the ’52 Act as a response to dissatisfaction with previous court rulings (such may not have been your intent).

  3. I got home to see that Alice was out, and to read this month’s UK CIPA Journal in which two new eligibility cases were reported. I mention them here as discussion fodder, on the issue when an abstract idea might become eligible in the USA.

    One of the English cases concerned a voucher scheme to be implemented at a supermarket checkout. Enabled, novel, useful, cute and probably very helpful for profitability, but not eligible for a patent.

    The other case involved the backspace key on a keyboard. It was to give it a specified supplementary function. Useful in particular for smartphones, I shouldn’t wonder. A technical feature, a nice technical effect, therefore eligible in Europe.

    Let us assume both are claimed at the same level of “abstraction”. I wonder how they would shake down, these days, in the USA.

    1. On must ask, Max, whether the novel subject matter is technological in Europe and here whether it is a machine, manufacture or a composition.

      Such was the traditional mode of analysis that held business methods and printed matter ineligible even if claimed in combination with eligible subject matter. See e.g., Guthrie v. Curlett, 10 F.2d 725 (2d Cir. 1926).

      Judge Rich in State Street bank said this, “The business method exception has never been humbled by this court, or the CCPA, to deem an invention unpatentable.” 149 F. 3d 1368 at 1375. But that is hardly true. For example, see, In re Patton, 127 F. 2d 324 (CCPA 1942) (“In this connection it is sufficient to say that a system of transacting business, apart from the means for carrying out such system, is not within the purview of section 4886, super, nor is an abstract idea or theory, regardless of his importance or the ingenuity in which it was conceived, apart from the means for carrying out such idea or theory into effect patentable subject matter.)

      Suffice it to say, a claim as a whole is ineligible if what is eligible is old, and what is new is ineligible, unless that which is ineligible functionally improves the eligible. Mayo v. Prometheus

      1. The continued duplicity from Ned on “how important” the categories are – and yet continuing to ignore the fourth equal category.

        The CRP machine and the total disrespect for the Rule of Law is guaranteed to infect every Ned comment for years to come.

        Your use of Guthrie is not what you say. The decision comes before 101 was changed and is explicitly geared to patentability instead of patent eligibility.

        The concluding statement from Guthrie:

        Thus as a question of fact we consider this patent as disclosing merely advice as to how to make an index, and the means (if any) disclosed for doing it as not patentably novel.

        1. anon, “Thus as a question of fact we consider this patent as disclosing merely advice as to how to make an index, and the means (if any) disclosed for doing it as not patentably novel.”

          And just how is this different from saying that which is eligible is old and that which is new is ineligible?

          1. Try restating that question after you realize that you are doing the very conflation of patent eligible and patentable that Congress explicitly acted to separate and constrain the activist anti-patent Supreme Court in the 1952 Act.

            In other words Ned, your question shows that you are trying to subvert the Rule of Law and make ascendant the Royal Nine – regardless of which branch of the government the constitution has allocated this authority.

            I will remind you that your own oath as an attorney did not include fealty to the Royal Nine, but to the constitution upon which you spit.

        2. “Thus as a question of fact we consider this patent as disclosing merely advice as to how to make an index, and the means (if any) disclosed for doing it as not patentably novel.”

          They should consider as a matter of fact most software patents as disclosing merely advice as to how to make a computer program and the means, say a CRM or processor or RAM, (if any) that are disclosed are not patentably novel.

          1. 6,

            In your own words, what do you take the phrase “patentably novel” to mean, and which section of post-1952 law does it fit in?

            1. The second part of the quote discussing the novelty (or not) of the “means” at the end of the quote was about 102 nowadays anon. The part before that part is discussing what is actually disclosed and would today be considered a judgement regarding 101. The decision itself would today be a dual ruling on 101 and 102 just to cover all the bases.

        1. So then 6, do you realize that Ned is using outdated law? That Congress changed that law?

          This might be a first step in your real understanding of the issues.

          I’m rooting for you.

          1. “So then 6, do you realize that Ned is using outdated law? ”

            I wouldn’t say “outdated”. Good law never goes out of style so to speak. It would make for excellent law today.

            As to whether or not a given court considers it binding on them or not is up to them. That case was from the second circuit.

            “That Congress changed that law?”

            I see no indication of such having occurred at the present time. What it appears to me happened is that the federal circuit up and changed tune from what the second circuit and other circuits said before them.

            1. I wouldn’t say “outdated”. Good law never goes out of style so to speak.

              LOL – so to speak? that would be speaking in error. You seem to do that a lot.

              I see no indication of such having occurred at the present time.

              You need to pay better attention. Maybe if you were not so obsessed with projecting on me, you might care to try to understand that I have provided the information you need to “see.”

              1. Yes, 6 – it will take you opening your eyes and it will take you not retreating to your own “belief” system.

                That’s called learning by the way. You should try it once in a while.

  4. Let’s recap what this decision is about:

    Abstract (whatever that means)

    Gist of the invention.

    That’s it.

    Gist is the Court metro disregarding the explicit words and stated intention of Congress in 1952 “in retaliation” of those scriviners being too clever and doing something the Court feels just should not be allowed to get away with.

    Statutory categories? – just doesn’t matter. Period.

    Utility? – just doesn’t matter. Period.

    What matters? What the Royal Nine feel is important (and that is not scriviners, nor – apparently, the rule of law)

    What also matters? “Abstract”

    What does that mean? LOL – they REFUSE to tell you, me, or anyone.

    Great job Court.

    1. Even overlooking the constitutional breach of the separation of powers doctrine, and accepting for argument’s sake that we are allowing the Judiciary to write the law (now implicitly adding “technological” to 101), we are STILL left with a constitutional infirmity: by refusing to delineate “abstract” the law as written by the Royal Nine is void for vagueness. “Abstract” – whatever that is – affects all inventions (or if you prefer, all distilled Gists of inventions) regardless of category or utility. In essence, this lock for the front gate is unknowable because the law writer has refused to inform you.

      Anyone not have a fundamental issue with this?

    2. anon, the statutory classes do matter . If the novel subject matter is not a machine, manufacture nor a composition, the novel subject matter is not eligible.

      Somehow you refuse to accept this. Why?

      1. Yet again Ned you make multiple errors.

        First – it is not I that is saying that the classes do not matter. That would be the Court.

        Second, and with more than a bit of irony, you say the classes are important and YET AGAIN fail to list all of the classes.

        Do you realize your own hypocrisy?

        1. anon, prior to ’52, all patentable processes involved making or using machines, manufactures or compositions of matter. Are you trying to suggest that when Congress formally recognized processes as statutory subject matter they intended to overrule these prior requirements for processes? I might suggest rather that Congress intended to codify this prior case law.

          I find it interesting that you would think that a method involving, let us say, printed matter, would be eligible while a manufacture, machine, or composition involving the same printed matter as the novel subject matter would be ineligible.

          Your brand of thinking, anon, is downright bizarre if not insulting to one’s intelligence. That you once had an ally that thought the same way as you in Judge Rich does not give you an excuse to simply ignore case law prior to 1952 as if Congress intended to wholly dispatch that case law to the ash cans of history.

          1. Ned,

            You are clearly wrong in what you say regarding the pre-1952 coverage of statutory classes.

            Clearly.

            Prof. Crouch even had a guest post on this blog post-Bilski showing a history – throughout the entire US history – of business method patents that did not rely on one of the hard good categories.

            As we have discussed, your treatment here is ultra vires and is merely an attempt to reduce one of the four EQUAL categories to a sub-category level.

            Sorry – you are quite wrong in your thinking and your attempts.

            1. anon, regarding the PTO issuing business method patents, that is substantially irrelevant. All courts, every single one of them, every single case, all of them, that considered the issue prior to State Street Bank uniformly held that business methods were ineligible as not constituting one of the four classes.

              Judge Rich in State Street bank declared that he would not follow the other circuits, and also said, quite incorrectly, that neither the Federal Circuit nor the CCPA had ever held business methods to be ineligible. But that simply is not true. See for example, In re Patton, 127 F. 2d 324 (CCPA 1942) link to scholar.google.com

              And given that the CCPA cases are controlling as against a panel decision of the Federal Circuit, State Street Bank is not good law even on the issue of business methods being eligible.

              So what do we have? Every single case in American history that considered the eligibility of business methods declared them to be ineligible as nonstatutory. Every single case. All of them. Until, that is, State Street Bank.

              And then we have Bilski.

              Bilski has to be one of the worst decisions the Supreme Court has ever issued bar none even though it got the result correct.

              1. It is not substantially irrelevant – just as the pre-AIA EXPLICITLY used the term by name to indicate that such were eligible.

                Your twisted view is merely your anti-business agenda kick-started ALL OVER AGAIN.

                But Ned, 3, the new 4, is not 5. Just as your anti-business-method mantra went round and round and round post-Bilski with you attempting again and again and again to proclaim that that decision declared business methods dead – until I finally got through to you that such was NOT the holding – the holding there instead relating to “abstract,” so here TOO, your mantra is NOT supported by the case, as here TOO, the holding is NOT on business methods, but on “abstract.”

                The very thing you feel makes “Bilski has to be one of the worst decisions the Supreme Court has ever issued bar none…” has ONLY been magnified in Alice.

                Once you are done twisting the decision, go back and read the actual words.

                Just like Bilski, the holding of Alice speaks to “abstract.”

                Just like Bilski, your desired holding of no business methods just is not there.

                How long did it take me pounding on you to read Bilski properly for you to recognize that Bilski did not hold as you wanted to read that case?

                How long will it take me pounding on you to read Alice properly for you to recognize that Alice did not hold as you now want to read that case? In the exact same way that you wanted to read the Bilski case –
                the
                exact
                same
                way.

                Further, you have YET to even acknowledge that Alice is even worse than Bilski in that in Alice the Justices indicate that they will never tell anyone just what is “abstract.”

                Read again my posts 48 to 48.2 and recognize the truth of what I share.

              2. And when you are done with all that, realize that your new favorite case (Guthrie) does not support your view of the world, and in fact, by attempting to re-coalesce into 101 that which Congress separated out in 1952, you actually show how the Court here is acting ultra vires.

                You defeat yourself with the case you provide.

              3. anon, the problem with Bilski is that it found the business method claims statutory and then looked for an exception. This turns on its head the jurisprudence that consistently found business methods nonstatutory and did not have to look for any exception.

                There is no question that an idea is not statutory. But to say in the one hand that a business method is statutory and on the other there is an exception to this because the business method is an idea or an abstraction is completely ridiculous.

                I have no idea what the Supreme Court was trying to do in Bilski, but turned 150 years of jurisprudence to the contrary on its head and with no reason to do so. Congress did not change anything of substance when it changed the word Art into the word process. And yet, the Supreme Court all but affirmed that it did.

                The Supreme Court should have taken State Street Bank on cert., I assumed it was petitioned. But when it had a chance to do so in Bilski, it should have reversed that case flat-out.

              4. Utterly and completely wrong Ned.

                You have reverted completely from the lesson that you had learned from me regarding Bilski and you have fully turned back to your anti-business method agenda.

                The CRP merry go round is at full speed.

                Your “should-haves” merely reflect your agenda. You ignore all the facts and reasoning and words of Congress, Frederico, and Cornell Law notes that I have given you. You close your eyes to the massive wreckage you do to case law and spin so that your agenda is advanced – all reality be d@mmed.

              5. “How long will it take me pounding on you to read Alice properly for you to recognize that Alice did not hold as you now want to read that case?”

                Anon simply must control Ned. How long will it take him?

              6. “This turns on its head the jurisprudence that consistently found business methods nonstatutory and did not have to look for any exception.”

                Not technically true Ned, even the cases you cite refer to the “means” by which the business method is carried out. That’s simply the primitive language talking about the “exception”.

            2. “of business method patents that did not rely on one of the hard good categories.”

              Yeah they stated the opposite in the instant alice decision didn’t they?

          2. Ned, you are being downright preposterous in your attempts to mischaracterize my views with “while a manufacture, machine, or composition involving the same printed matter as the novel subject matter would be ineligible.

            I explained this to you in clear and easy to understand set theory – and you refuse to address that explanation and weave these horrific characatures.

            Please stop being so deceitful.

            1. Regardless, Guthrie relied on Hotel Security – a case that Rich poo-pooed as being a case confined to novelty – in ITS holding that subject matter not otherwise a machine, manufacture or composition is not eligible, and if the novelty in the claim, the claim as a whole was ineligible.

              Moreover, there were a large number of other cases that similarly held business methods ineligible as an “art.” See their summary at 130 S.Ct. 3246 in Steven’s dissent in Bilski. The majority NEVER discussed these cases and the split in the circuits caused by Judge Rich in State Street Bank.

              Thus did Rich overturn law of the 2nd and other Circuits long respected.

              But, such were the ways of judge Rich.

              But then along came Bilksi, and without even discussing these cases, simply decided that business methods were processes, and that if one wanted to exclude them, then the problem had to be elsewhere. Call them abstract. So, what does that mean?

              Well, Kennedy’s opinion was a mistake of the greatest magnitude as it ignored the statutory basis for excluding business. But sanity has returned in Prometheus and no in Alice restored the historical analysis provided by the 2nd Circuit in Hotel Circuitry, Guthrie, and the cases that followed them. Math, and business methods are now labeled abstract, but this means, in truth, they are not machines, manufactures or compositions, and if the novel subject matter in the claim is not directed to one of these categories, the claim as a whole is ineligible.

              1. Restoring?

                You mean undoing the work of Congress.

                You keep on pretending that this is not so.

                Yet, I have shown you Frederico. I have shown you the Comgressional record. I have shown you the notes to 103.

                Yet you persist in your purposeful ignorance. By choice. By your own choice.

              2. Well, Kennedy’s opinion was a mistake of the greatest magnitude as it ignored the statutory basis for excluding business

                3 – the new 4 is still not 5.

                The CRP merry-go-round again.

      2. Ned,

        While I have your attention, let me bring an explicit point up to you for your consideration (I noted this previously, but you may have, um, missed it):

        Just recently (and up to the release of the Alice decision), you spoke stridently as to how the Supreme Court made a terrible mistake in the Bilski case for not defining “abstract.” For a bit, that was your “flavor of the day,” resulting in more than just a few posts repeating that mantra.

        And yet, surprisingly (or not), you seem to have taken your eye off that issue and have embraced the Alice decision even though it takes that critical mistake in Bilski and amplifies it a thousand-fold.

        Does this not bother you anymore? Why not? Your silence on a matter that so recently seemed to consume you is a bit odd.

        1. anon, what makes Alice different than Bilski is its embrace of Prometheus in its mode of analysis – focusing on the novel subject matter and whether it is eligible, and if ineligible whether enough has been added. Merely adding in the conventional is not enough.

          Another way of looking at Prometheus is that it employs the same mode of analysis historically applied prior to 52 with respect to patentable subject matter – if the novel subject matter was not a machine, manufacture or composition, then the claim as a whole was not eligible. In these cases, the courts look beyond the nominal to the substance. The Guthrie case is on point for this. Also look at the Supreme Court cases cited by Guthrie which did the same thing. Would you like a cite?

          1. Stop kicking up dust and moving the goal post – “mode of analysis” has NOTHING to do with the explicit point of NOT defining “abstract.”

            Why are you taking such great lengths to avoid this single issue?

            This smacks of duplicity.

          2. And as to that “mode of analysis” prior to 1952 – here you are expressly acknowledging that the Court has turned its nose and violated the express words and actions of the 1952 Act of Congress by ignoring even what Frederico noted what Congress was doing with the new 101/103 and patent eligible versus patentable distinctions.

            You spit on the Constitution and you do so proudly in your fealty to the Royal Nine.

            It is shameful how you refuse to understand what even Frederico acknowledged and your willingness to throw out the separation of powers doctrine when it aligns with your agenda.

            Please spare me and all any future concerns you may have when that same doctrine is violated with executive branch Article I court shenagins – you have thrown your right to complain into the t01let.

          3. Ned twisting caselaw again:

            FnA Ned – nothing like picking a case from before 1952 and purposefully trying to further obscure the difference that Congress set in place with patent eligibility and patentability.

            The concluding statement from Guthrie:

            Thus as a question of fact we consider this patent as disclosing merely advice as to how to make an index, and the means (if any) disclosed for doing it as not patentably novel.”

  5. It looks like we now are down from 4 to 3 SC Justices that want to ban business methods. Like said Scalia said during oral arguments “5 is not 4″ and it sure ain’t 3!

    Most important “Integration Analysis” has been firmly established as the proper analysis for what “is” 101 statutory subject matter. As I predicted and outlined it first on this blog right after the Prometheus decision.

    What smart Patent Attorneys have to learn to do now is write, prosecute and argue “Integrated” claims, because the old state your process and then apply it with a computer will not work, no matter how perfectly statutory those claims were and still are.

    I predict the official office guidelines on Integration will now be officially updated to include computer related and business method patents.

    Onward and upward!!

  6. My impression on a first read was that the Court is very uncomfortable with the idea that broad patents may practically allow one to claim an idea, by being drafted so broadly that others are pre-empted from using the idea.

    Is it me, or isn’t that the whole idea behind patents?

    For example:

    Let’s say I realize that intermittent windshield wipers would be a great idea. I hire a patent agent and get a patent that claims an intermittent windshield wiper in broad enough language that essentially all mechanical intermittent windshield wiper devices are covered. (If my agent doesn’t do this, I sue him/her for negligence). My patent issues and I’ve essentially claimed the “idea” of an intermittent windshield wiper, by pre-empting anyone else from using the idea of mechanical intermittent windshield wiping.

    Why is that different than the situation with software patents, or diagnostic methods? Because it’s a physical product? Or is it not different at all, and the Court just doesn’t understand that “pre-emption” of ideas is not a problem, but at the very heart of what the patent system is. If there is no pre-emption, the patent monopoly is useless. Pre-emption is the quid, in the patent quid pro quo.

    -AR

    (I didn’t realize how long it takes to write intermittent windshield wiper when I thought up the example.)

  7. Reacting to the case, George Beck, partner at Foley & Lardner LLP in Washington, DC, said the ruling “may not be limited” to the computer field and could arguably apply to other areas such as abstract ideas, natural phenomena or laws of nature.

    Hey, George: the Supreme Court already addressed these “other areas” in Prometheus v. Mayo a couple years ago and we’ve discussed them endlessly here.

    Just in case you’re confused, here it is again in a nutshell.

    Information processing of the sort that you can do in your head or with a pencil and paper is ineligible subject matter. An example of such ineligible information processing is “looking at some data and thinking about a correlation involving that data.” We know from Prometheus (and many of us knew before Prometheus) that merely tacking on some old conventional (i.e., unpatentable) data gathering step prior to the ineligible step (such as the information processing step I just described) can not create an eligible or enforceable claim. There’s simple reasons for that result and I’m happy to provide them for the thousandth time if you are still confused.

    Now we know (surprise!) that the mere recitation of “a computer” or similarly ancient “technology” is insufficient to rescue an otherwise ineligible abstraction (which includes but is not limited to information processing methods described at the level of mental “determinations”) from the jaws of ineligibility. This is as it should be. The public does not need its time and money wasted evaluating and litigating computer-implemented j-nk that is granted only because nobody previously used the same jargon as that chosen by the applicant. The only beneficiaries of such a system are patent lawyers and the grifters they enable. This has been true for many years. Sadly the Federal Circuit and the PTO appeared to buy into the malarkey that patents on such j-nk were necessary to promote “progress” in the use of computers for processing infrormation. That, of course, is utterly false.

    It’s time for smart people to find jobs doing something constructive instead of shoving reams of j-nk at the PTO. Make a faster or lighter or more robust information processing machine. Develop new materials that can store more data and are more robust. Or grab a shovel and start work on a real construction project instead of simply digging a hole that you can stick your head into.

      1. The ancient “technology” of electrons, protons and neutrons want to have a word with you

        Please, please, please make the argument in open court that the difference between a new drug that cures malaria and some filler material in dog food is analogous to the difference between a computer “configured to” highlight an email from a “friend” and a computer “configured to” save the email from a “friend” in a “special folder.”

        And when you make that argument, be sure to pound the table really really hard and maybe work up a sweat and mess up your hair so that everybody can see that you really mean it and insult any judge questions you with references to World War II or Jane Fonda. That’s pretty much what you do here on a daily basis and, of course, we can all see how effective and persuasive that is.

  8. The AIA 102 includes now
    (a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—

    (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or

    If I consider abstract ideas, natural phenomena, and law of nature to be “otherwise available to the public” at any time, then I could try to make an obviousness argument to invalidate the claims discussed in Alice.

    Maybe 102/103 will be used more often in the future for dealing with the inventions that are applications of abstract ideas, natural phenomena, or law of nature.

    1. Maybe 102/103 will be used more often in the future for dealing with the inventions that are applications of abstract ideas, natural phenomena, or law of nature.

      The printed matter doctrine has been used for years to tank claims under 103 but, as all these recent cases (and many commenters) have made abundantly clear, the doctrine simply imports 101 considerations into another statute. For example, a new material on which information can be imprinted is eligible subject matter, but once that material is in the public domain you can’t make it “new” by imprinting new information on it. See, e.g., AstraZeneca LP v. Apotex, Inc., No. 2009-1381, -1424 (Fed. Cir. 2010) ( a holding to the contrary would permit “‘anyone [to] continue patenting a product indefinitely provided that they add a new instruction sheet to the product.’). <— sound familiar?

      1. LOL talk about intellectual dishonesty – sound familiar?

        Yes – your mischaracterization of the concept under discussions should sound very familiar.

        Why are you knowingly mischaracterizing this topic YET AGAIN?

        You present the world as Set B, ignoring that the world is Set A, which includes BOTH Set B and Set C.

        You then mischaractierize the law obfuscating that the law fully permits Set C.

        Maybe you need to check out again ABA models rules of professional responsibility AGAIN.

        1. You present the world as Set B, ignoring that the world is Set A, which includes BOTH Set B and Set C. You then mischaractierize the law obfuscating that the law fully permits Set C.

          Everybody following along? LOL.

          1. (sigh)

            The concept at hand deals with the exceptions to the judicially created doctrine of printed matter.

            The exceptions center around a distinguishing feature of printed matter – the feature of functionally related.

            You have made admissions against interest as to your knowledge of this controlling law.

            Yet, you continue to advocate in purposefully misleading manners on a material aspect of the law.

            Clearly, ethics that you swore to uphold mean nothing to you.

            I am pretty sure that everyone can follow that.

            I do wonder though if Prof. Crouch is an active member of any bar that would necessitate his reporting of your unethical behavior.

            1. And yes, as a self-policing profession, some of us take ethics in advocacy seriously.

              You really should – it is not that difficult to be intellectually honest.

            2. The exceptions center around a distinguishing feature of printed matter – the feature of functionally related.

              All information is “functional” and all information is “relatable” to either (i) the material it’s printed on or (ii) the person/device capable of reading the information. It’s meaningless grbge and it’s doubly meaningless in the context of your beloved computer-implemented j-nk claims (e.g., so-called Beauregard claims) where the specific “information” that has any function (i.e., the code used to instruct the computer) is never even recited.

              If there’s any doubt about how silly and inept the Federal Circuit’s jurisprudence on this topic is, just flash back to In re Dembiczak. Remember that one? A patent on a garbage bag with a pumpkin printed on it. Try to believe it.

              1. Your mere stating “all” does not address the legal issues, and clearly fails to distinguish the differences noted in law.

                Come man, use that vaunted English as a first language to express with the necessary particularity what the controlling law stands for and why you disagree with it.

                Try to be a big boy. Use more than just your feelings and ad hominem to make your point (remember, as the advocate wanting the law to be something else, the burden is on you).

                Dazzle us with your legal brilliance.

            3. I do wonder though if Prof. Crouch is an active member of any bar that would necessitate his reporting of your unethical behavior.

              Golly, that’s a really hard question to answer.

              1. My wondering was not a question – what happened to your English as a First Language skills – why limit yourself to wanting only declarative sentences, and then bungle what is and is not a question?

                I would not mind if Prof. Crouch verified whether or not he is under a duty to report under ABA Model Rule 8.3 (notwithstanding any desire to do otherwise in order to run his blog).

                Comment 1 to the rule is delicious, don’t you think? Further, comment 3 should be read in light of Rule 84 comment 2 – as your behavior certainly fits that description.

      2. For example, a new material on which information can be imprinted is eligible subject matter, but once that material is in the public domain you can’t make it “new” by imprinting new information on it. See, e.g., AstraZeneca LP v. Apotex, Inc., No. 2009-1381, -1424 (Fed. Cir. 2010) ( a holding to the contrary would permit “‘anyone [to] continue patenting a product indefinitely provided that they add a new instruction sheet to the product.’).

        Your little friend is apparently incapable of articulating a coherent objection to this, but your formulation is too broad, and does ignore the “functional relationship” aspect of the printed matter doctrine. A better formulation is as follows: “For example, a new material on which information can be imprinted is eligible subject matter, but once that material is in the public domain you can’t make it ‘new’ by imprinting new information on it unless the imprinting itself makes the material operate differently or enables a new function for the material.” See, e.g., In re Miller, 418 F.2d 1392, 1396 (CCPA 1969), cited with approval in AstraZeneca LP v. Apotex, Inc., No. 2009-1381, -1424 (Fed. Cir. 2010).

        In my view, the application of this “exception” to the printed matter doctrine to Beauregard claims is “beaugus,” and will be condemned by the Federal Circuit whenever it comes up, since the “functional relationship” between the computer-readable medium and the “printed” information has nothing to do with the printed information. The situation is different, however, with a computer that is programmed (i.e., imprinted) with program code – that program undeniably makes the old machine operate differently. Then the question is whether that new operation is non-obvious.

        1. DanH A better formulation is as follows: “For example, a new material on which information can be imprinted is eligible subject matter, but once that material is in the public domain you can’t make it ‘new’ by imprinting new information on it unless the imprinting itself makes the material operate differently or enables a new function for the material.” See, e.g., In re Miller, 418 F.2d 1392, 1396 (CCPA 1969)

          That’s not a better formulation, DanH. That’s the same formulation I proposed with some gobbledygook thrown in to create a massive loophole for a certain class of patent applicants. A piece of paper with useful text on it certainly does “operate differently” than the piece of paper without the text, and it does provide the paper with a “new function” (providing information to someone looking at the paper, or making the paper look nicer, whatever). Likewise, the paper with the information on it can be read by a properly configured computer and thereby alter that computer’s “functionality”, just like a disc with its information burned on it.

          I’m not saying that a meaningful distinction can’t be drawn and articulated but that passage from Miller ain’t it. It’s not even close.

          A far better (and rational and workable) rule is simply to deny claims which differ from the prior art only in the recitation of “new” information (or functions flowing from that “new” information).

          1. A piece of paper with useful text on it certainly does “operate differently” than the piece of paper without the text, and it does provide the paper with a “new function” (providing information to someone looking at the paper, or making the paper look nicer, whatever).

            The paper itself doesn’t operate in a new way – it does exactly what it has done since it was invented. The information on it may make your brain operate differently, but the paper isn’t doing anything new. The same is true for computer-readable medium claims, which is why I agree with you that Beauregard claims are worthless. The computer-readable medium with instructions on it isn’t patentable until it’s actually combined with the computer “brain” that can read it.

            To be clear, by the way, I didn’t mean to imply that anything I said was quoted from In re Miller. I was re-phrasing your formulation, with my own words. Both AstraZeneca and Miller, however, draw a distinction between things like “instruction sheets” and printed matter that adds function to its carrier. Both are still good law.

              1. Gentlemen – you err in thinking that the functional relationship itself has to be novel. It does not.

                I suppose that’s right, if you you’re talking about the functional relationship in a general sense, rather than about the specific functionality imparted by the printing. But the printed matter has to impart some functionality to the medium above and beyond the function of “carrying information.” Otherwise, the printed matter doctrine would be meaningless.

            1. The information on it may make your brain operate differently, but the paper isn’t doing anything new.

              Whether the paper “does something new” depends entirely on the generality of the function you ascribe to the paper prior to the text being printed on it, and afterwards.

              But the combination of the [insert eligible prior art] and [ineligible information] always has some “functionality” that neither has alone. That’s the problem with the so-called “function” exception to the so-called “printed matter doctrine”. You really can obtain whatever result you want with ease.

              Both AstraZeneca and Miller, however, draw a distinction between things like “instruction sheets” and printed matter that adds function to its carrier. Both are still good law.

              I agree that “distinctions” have been attempted and the lower courts have found in some cases that “new information” can impart eligibility/patentability to old structures/apparati but the rationale never amounts to more than hand-waving. “This is functional and this isn’t because we say so.”

              As for being “good law”, those cases applying the exception to uphold patentability/eligibility are only as “good” as the last competent defendant who failed to challenge them and there has been a rather massive introduction of clear Supreme Court guidance that is probably a tad more relevant than any of those old CCPA cases and the handful of subsequent Federal Circuit cases that did little more than scratch the surface of the policy issues at play. You seem to agree, for example, that B-claims are hanging on by their fingernails at this point. Is there anyone who would expect them to hold up to a serious challenge?

        1. lol – no patents on the abacus – they are not patent eligible, er um, patentable, er um, abstract?

          (what’s the implicit word of the day…?)

          1. no patents on the abacus – they are not patent eligible

            Here’s your Mr. “Intellectual Honesty” hard at work, folks.

            Like I said: he’s a pathetic hypocrite and dishonest peddler of self-serving drivel.

            Of course if an abacus were new and structurally described in a claim, that claim would be eligible. But once the abacus was in the public domain, methods of using it to calculate one’s monthly expenses would not be eligible, nor would the intermediate “configurations” of the abacus be eligible for patenting merely because someone hadn’t specifically described them before.

            Basic stuff. Easy to understand. When people pretend not to understand this stuff, it says a lot more about those people than it does about subject matter eligibility. Watch those people closely for a little while and you’ll learn a lot about them and their bizarre views about the patent system. They really do think it’s all about them. They are cl0wns.

    2. I second MM’s observations about the long practice of excluding from novelty subject matter which is ineligible. The question one must ask is whether the novel subject matter is a “machine, manufacture or a composition of matter.”

      From, Guthrie v. Curlett, 10 F. 2d 725 (2c Cir. 1926):

      “A patentee, to merit a patent, must disclose a new and useful art, machine, manufacture, or composition of matter. Plainly there is before us neither a machine nor a composition of matter; the latter, if for no other reason than that no claim is made therefor.

      “In this case, however, no means are suggested for making a consolidated index, except the employment of symbols. There was a time, say that of Cadmus, when the alphabet was patentable; but we decline to see anything now patentable in suggesting that a railway be called A or canned goods C.

      The patentee may and does call what he produces a manufacture, to wit, a book of so many leaves and a given amount of print thereon; but the question is not what an interested party calls it, but what is it, and we consider the only possibly novel part of it, what might be called the plot of the work — i. e., the story revealed, and that can be copyrighted, but not patented.”

      1. Lovely strawman and (not surprisingly) simply choosing once again to purposefully choose ignorance about the exceptions (both existence and intent) to the judicially created doctrine of printed matter.

        You continue to pretend that Set B is Set A and that Set C simply does not exist (note that Malcolm attempts the equivalent by dissembling that that there is no legal difference between Set B and Set C).

        Of course both are simply wrong in fact. Ned should know better, and Malcolm had volunteered an admission against interests of actually knowing better.

        Dissembling about a material point of law “because you don’t like it” is unethical for an attorney in AND out of a court.

      2. FnA Ned – nothing like picking a case from before 1952 and purposefully trying to further obscure the difference that Congress set in place with patent eligibility and patentability.

        The concluding statement from Guthrie:

        Thus as a question of fact we consider this patent as disclosing merely advice as to how to make an index, and the means (if any) disclosed for doing it as not patentably novel.”

  9. Some self-important discredited patent bloviator on the Internets: If investors are paying attention it should devalue publicly traded companies by in excess of $1 trillion.

    As of this writing, stocks are soaring.

    companies like Apple, IBM, Microsoft, Google and others have had the value of their patent portfolios nearly completely erased today. If they wish to remain compliant with Sarbanes Oxley and other laws and regulations of the Securities and Exchange Commission they will need to level with their shareholders and tell them that their patent portfolios have been decimated.

    If anyone sees IBM, Google or Apple stock tanking, please let us know! Might be a good time to buy. LOL.

        1. Learn to write without your usual short script and with intellectual honesty – as required by those in our profession when they are advocating (in AND out of court).

          As to your thoughts….

          I prefer to stay away from that cesspool.

        2. Just declarative sentences?

          Why not questions?

          LOL – wait, we know why you don’t like questions – Answering a question may mean that you might be accountable for the answer (and I’m pretty sure everybody can follow that).

  10. Summary:

    It’s not patentable because we say it’s not. We’ll know patentable when we see it.

    Great, thanks for the solid analysis that I can take back to my clients guys. Bang up job here.

    I’m sure startups are going to be thrilled with “Well, we can’t really know if it’s patentable until we spend 20k getting a patent, then 3million in litigation, because that’s when the supreme court will let us know if it’s patentable or not. So, do you want to proceed with the process?”

    1. Great, thanks for the solid analysis that I can take back to my clients guys.

      Meanwhile the rest of us are enjoying the fact that we didn’t mislead clients into believing that they could claim ineligible jnk merely by reciting the words “on a computer.”

      None of this should come as a surprise. It’s been predicted and discussed for years. And guess what: there’s more to come!

      What do you tell your clients when they ask you about the bullet-proof awesomeness of the term “configured to” in the context of computer-implemented jnk?

      Lastly, let’s all remember that the propagandists interested in lining their own wallets will do and say and anything to sxcker potential clients into throwing money down the txlet. Some “expert” on the Internet crying about “trillions of dollars” being lost and massive devaluation isn’t really an “expert” at all but rather just another dishonest self-interested hack.

      Time for you guys to grow up.

      1. Lastly, let’s all remember that the propagandists interested in lining their own wallets will do and say and anything to sxcker potential clients into throwing money down the txlet.

        You really don’t get professional ethics do you?

        1. I’ve said it before and I’ll say again: you’re the last person on earth to be discussing “ethics” here. Go and talk to your buddy Judge “it’s eligible because it’s sooper dooper complicated” Rader if you want to talk about ethics, mkay?

          1. I’ve said it before and I’ll say again: you’re the last person on earth to be discussing “ethics” here

            The fact that you say things that should apply to you is your number one hallmark.

            That’s not a good thing by the way.

            Intellectual honesty – try it.

    2. Can I give you a clue, bad joke? If the novel subject matter is neither a machine, manufacture nor a composition, or does not improve one of these, the claim as a whole is not eligible.

  11. OK, try this on for size:

    A patentable business method is one that exploits technology in a novel and non-obvious way, regardless of the novelty of the business logic that is implemented by means of the claimed method.

    An unpatentable business method is one that exploits technology in an old or obvious way, regardless of the novelty of the business logic that is implemented by means of the claimed method.

    I know, I know, but that’s the way it’s done in Europe and seems to be what the SCOTUS wants, without saying as much.

    1. seems to be what the SCOTUS wants

      It’s pretty much what everybody wants except for a certain class of grifters and their patent attorneys.

            1. …and yet you deign to criticize people for wanting to make money as ‘grifters’ as if making money by applying the law is a “bad” thing….

              Your sense of balance and proportion is wack.

              1. as if making money by applying the law is a “bad” thing….

                And once again the truth leaks out. Your patent txxbxggers, folks. They can’t help themselves.

              2. And may I also suggest that you get into a line of work in which your belief system aligns with your work product.

                Maybe you won’t be so internally conflicted and will be able to heal the massive psyche issues you have.

    2. what the SCOTUS wants, without saying as much.

      SCOTUS should stick to the words actually used by Congress – that is how our law is supposed to work.

      1. that is how our law is supposed to work.

        Looks like “Mr. Principle” is back on his high horse. Too bad he’s a total hypocrite.

    3. Hagbard, I tend to agree that if the novelty is in “technology,” meaning in a machine, manufacture or a composition, then it makes little difference whether the claim also includes ineligible subject matter.

      But you should know, this has always been a law in United States.

      1. Yet another post with a missing category…

        Ned, do you recognize a pattern of you carpet bombing an idea that captures your fancy and making multiple repeat posts in short order? Do you realize that when you do so, and you err (as you often do), that you have magnified your error tremendously?

  12. It’s quite simple really:

    “Abstract” = “Non-technical”

    “Technical” = “Non-abstract”

    [note for the hard of thinking – this is intended as humor]

      1. Seems to me SCOTUS is using “abstract” the way the EPO uses “non-technical”, which I personally find amusing in some way since the clrarly are not the same, even if they overlap

  13. As this is an extra-statutory judicial exclusion, I suggest that “narrowest reasonable interpretation” rather than “broadest reasonable interpretation” is the appropriate standard.

    What needs to be done, therefore, is to analyse the opinion carefully and objectively and identify the narrow ruling that can be derived from the case, which is likely to reflect the Court’s intentions especially having regard to the expressions of caution which are expressly stated in the opinion.

    As appeared in friendly letters on the cover of the Hitchhikers Guide, DON’T PANIC.

    1. Paul, really?

      If what is new in the claim is not eligible, or applied to improve the eligible, the claim as a whole is not eligible. You think this principle should be cabined?

      1. …because improvements to eligible material (regardless of how that improvement is obtained [i.e., real]) just has no place in the explicit words of Congress, right Ned?

        Um, wait.

        35 USC 101: “or any new and useful improvement thereof”

        In other news, the new dictionary has come out: All the Anti-Patent Judicial Code Words That You Will Ever Need – 1984 Edition.

        1. Anon, no doubt an improved machine or process is eligible after Alice. That is what the reference to Diehr was about.

          But if what is new is not eligible, or improves the eligible, the claims as a whole is ineligible.

          1. improves the eligible,

            The inanity is stark. The blurring of what the difference between patent eligibility and patentability is almost complete…

            It seems like according to you, one may start with a patent eligible machine, make a physical and tangible improvement to that machine and lose eligibility of a machine.

            And somehow in this – the issue stipulated to be true BY BOTH PARTIES and explicitly NOT an issue before the Court has been violated – a manufacture is no longer a manufacture (as you would have it).

            Utter poppycock.

            1. (it is no small surprise that the Royal Nine in their addiction need to blur and conflate patent eligibility and patentability.

              Congress in 1952 in their removal of that addictive power of setting the meaning of invention by common law evolution not only stripped the Court of that power, they segregated the power – separating 101 from 103.

              It is no small error that so much of the Court’s verbiage sounds in 103. No small error at all.

          2. But if what is new is not eligible, or improves the ineligible, the claims as a whole is ineligible.

            FTFY. Or, at least, I think/hope I fixed it for you.

            Sometimes it’s hard to tell the difference between typographical errors and complete failure of understanding.

            1. Mellow, if what is new in the claim is nominally ineligible, Diehr teaches that the claim as a whole nevertheless is still eligible if the otherwise ineligible subject matter improves otherwise eligible subject matter.

              However, if the ineligible does not modify and improve the eligible, and it is the sole novelty in the claim, then the claim as a whole is ineligible. See, Prometheus, but also, see In re Russell (which is the origin of the printed matter doctrine).

              Example, from Russell, is a claim to an index card where the novelty is particular printed matter. Clearly the card is a manufacture, but printed matter is not — because printed matter is neither a machine, manufacture nor a composition.

              Morse — the system of marks and spaces was eligible. The particular code was not.

              The player piano example from Archer’s dissent in Alappat. The sole novelty in the example was new music. Music is not eligible — not being a machine, manufacture or composition. The rest of the claim is old and conventional. The music does not modify the piano in any functional sense. The claims as a whole is ineligible.

              One sees in both Bilski an Alice that economic principles are “abstract.” I would respectfully suggest that the court will find the same with respect to any subject matter that is not a machine, manufacture or composition – just like in Russell. The court has labeled “math” abstract. Both math and economic principles share this in common — they both are not machines, manufactures or compositions.

              Look at Funk Bros. and Prometheus. The novel subject matter in each was an association — deemed to be a law of nature. But the association was simply a fact, information. Facts, information and the like are not machines, manufactures or compositions. They are all abstract in addition to being laws of nature. The associations can be published in books. But they cannot be claimed as patentable subject matter.

              There is a common thread here. Connect the dots. One does not have to have the player piano case go to the Supreme Court in order to know the answer. A claim to a player piano with new music on the roll is simply not eligible because music is not eligible.

              Look to what is new in the claim. Then determine whether that is eligible — i.e., whether it is a machine, manufacture or a composition. If not, determine whether it modifies one of these to improve it. If not, the claim as a whole is ineligible.

              1. Canards galore Ned – old ones with music – music has NEVER been attempted to have been placed in a category because it does not get even that far, and a new one: your DUPLICITIOUS treatment of the Russell case.

                Common thread alright – just not the one you are thinking of.

              2. anon, the analysis I propose is well supported in the case law. E.g., Guthrie v. Curlett, 10 F. 2d 725 (2d Cir. 1926):

                “A patentee, to merit a patent, must disclose a new and useful art, machine, manufacture, or composition of matter. Plainly there is before us neither a machine nor a composition of matter; the latter, if for no other reason than that no claim is made thereof.”

                “The patentee may and does call what he produces a manufacture, to wit, a book of so many leaves and a given amount of print thereon; but the question is not what an interested party calls it, but what is it, and we consider the only possibly novel part of it, what might be called the plot of the work — i. e., the story revealed, and that can be copyrighted, but not patented.”

                Note the focus on the novel aspect, and that such was neither a machine, manufacture nor a composition of matter.

              3. anon, since I have cited you Guthrie, a case which expressly supports my interpretation of Russell and the interpretation of the Alice case I advance here, I think you owe me and everybody reading this blog an apology. It is you, anon, that refuses to accept any view of the patent law different from that handed to you by anybody other than Judge Rich. you speak of canards, but focusing on this novel subject matter and the claim to determine whether that novel subject matter is a machine, a manufacture or a composition is well supported in the case law and further is actually the mode of analysis of the Supreme Court cases since at least Funk Brothers, in particular includes cases like Benson, Flook, Diehr, Prometheus, and now Alice.

                At best, you live in a land of denial while calling people who rely on actual cases to support their views duplicitous.

              4. anon, Your cite of Guthrie does NOT support your view of Russell.

                yes it does. Guthrie is directly on point. If the novel aspects of a claim are not within the enumerated classes, the claim as a whole is ineligible – with the exception of Miller and Diehr .

                What did you think I cited Russell for? I have said many times that I cited it for its mode of analysis.

              5. …and how many times are you going to ignore the simple set theory example showing you EXACTLY why your view of Russell is wrong?

                You finding a case that cites Russell does NOT back up your WRONG view of Russell.

                Stop pretending that it does.

              6. Ned, try citing caselaw to support your position without WARPING it:

                FnA Ned – nothing like picking a case from before 1952 and purposefully trying to further obscure the difference that Congress set in place with patent eligibility and patentability.

                The concluding statement from Guthrie:

                Thus as a question of fact we consider this patent as disclosing merely advice as to how to make an index, and the means (if any) disclosed for doing it as not patentably novel.”

          3. “But if what is new is not eligible, or improves the eligible, the claims as a whole is ineligible.”

            And where exactly did the Supremes cite to a prior disclosure of the recited establishment of shadow accounts and maintenance thereof?

            Yes, yes, I know, they distilled the invention impermissibly down to a “gist” and then asserted that the gist was discussed is some text books.

            But as we know, “Distilling an invention down to the “gist” or “thrust” of an invention disregards the requirement of analyzing the subject matter “as a whole.” W.L. Gore & Assoc., Inc. v. Garlock, Inc., 721 F.2d 1540, 220 USPQ 303 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984)(restricting consideration of the claims to a 10% per second rate of stretching of unsintered PTFE and disregarding other limitations resulted in treating claims as though they read differently than allowed); Bausch & Lomb v.Barnes-Hind/Hydrocurve, Inc., 796 F.2d 443, 447-49, 230 USPQ 416, 419-20 (Fed. Cir. 1986), cert. denied, 484 U.S. 823 (1987) (District court focused on the “concept of forming ridgeless depressions having smooth rounded edges using a laser beam to vaporize the material,” but “disregarded express limitations that the product be an ophthalmic lens formed of a transparent cross-linked polymer and that the laser marks be surrounded by a smooth surface of unsublimated polymer.”). See also Jones v. Hardy, 727 F.2d 1524, 1530, 220 USPQ 1021, 1026 (Fed. Cir. 1984) (“treating the advantage as the invention disregards statutory requirement that the invention be viewed ‘as a whole’”); Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1 USPQ2d 1593 (Fed. Cir. 1987), cert. denied, 481 U.S. 1052 (1987) (district court improperly distilled claims down to a one word solution to a problem). “

              1. I was quoting it to Ned.

                In each case, cert. was denied. That implies at least that the Supremes so no terrible error in the thinking of the CAFC, five or six times, doesn’t it?

              2. Oh, I know who you were quoting it to – that’s why I made the comment.

                Ned belongs to the Cult of the Royal Nine – his allegiance to the constitution has obviously been supplanted.

                To Ned, no Rule of Law can contain the Royal Nine.

              1. Ned –

                Please copy and paste the answer to :

                “And where exactly did the Supremes cite to a prior disclosure of the recited establishment of shadow accounts and maintenance thereof?”

                that one can allegedly find at 41.1.1.1.2.2, ’cause I can’t fine it.

                Thanks.

              2. Les,

                It must be right next to the abrogation of the actual words of Congress in the 1952 Act, and to also next to the place where the Supremes have only recently found the implicit words of “technological” in sections 100 and 101 of the U.S. Code.

                And the Court takes pot shots at us “scriviners”….

    2. As this is an extra-statutory judicial exclusion

      Key word: extra

      Come people, let’s apply a little critical thinking on what this word entails.

    1. Could be 6, that a lot of patent attorneys have a lot invested in business methods or other ineligible subject matter that they thought was eligible by reciting generic computers or the like in their claims.

        1. Like the player piano with new music, the index card with new words, the computer with new software that does not modify the computer or where the computer is not linked to an otherwise eligible process or larger apparatus to modify such functionally.

          Where the novel subject matter is not eligible, or where it does not modify eligible subject matter, the claims as a whole is ineligible.

          1. r where the computer is not linked to an otherwise eligible process or larger apparatus to modify such functionally

            LOL – where does this BRAND NEW connected to a larger apparatus logic come from?

            Why are you starting at “computer” and moving up?

            Do you realize that by depending as you are from a DISSENT in (of all cases) Alappat, that you are only broadcasting how wrong you are?

          2. Integrate the proper holding of Alappat – as I have shown you using the Black’s Law Dictionary – and start “lower down the ladder.”

            A computer itself is a machine with many components – which can include the component of software.

            Once again I remind you of the stipulations in the Alice case and what was NOT up to the Court to decide: Alappat remains controlling law (and not your faulty version of it).

          3. Ned –

            Even if this were correct:

            “Like the player piano with new music, the index card with new words, the computer with new software that does not modify the computer or where the computer is not linked to an otherwise eligible process or larger apparatus to modify such functionally.”

            101 defines eligible categories. A claim to a computer is a CLAIM to a machine or an improved machine and passes 101 no matter what the recited details are.

            Any other ruling is bad law.

            If there is a rejection to be made than make it under 102, 103 or 112. Rulings like Alice just make the Court look foolish.

            1. Les,

              Let me adjust your statement ever so slightly to prevent an unnecessary (and misguided) Ned anti-Rich rampage.

              Fitting into a category is only a part of passing 101.
              It will generally not be difficult to fit into a category.

              Another part of 101 that also has to be met is the utility consideration.
              Under this part of 101, a proper investigation includes looking at the utility of the invention and asking whether the claimed utility fits within the Useful Arts.

              This too, is not a difficult test to pass.

              And quite contrary to the anti’s views, business methods easily fit here (the basis for this is easy to see by noting that the scientific method is routinely applied in the inventions concerning business methods – See Deming, et al).

              It is only through judicial activism that judge-made philosophical scrutiny is “manufactured” so that the Justices can keep their finger in the 101 nose of wax.

              As written by Congress -and duly reflected in the Congressional record, (and quite opposite to the agenda-driven protests of Ned Heller), 101 was meant as a wide open welcoming gate. Of course, the Court has ever endeavored, through implicit rewritings and insertion of dicta, and then launching from that dicta in later cases to negate the actions of Congress.

            2. Once more, since the mod filter has not yet been updated:

              Les,

              Let me adjust your statement ever so slightly to prevent an unnecessary (and misguided) Ned anti-Rich rampage.

              Fitting into a category is only a part of passing 101.
              It will [typically] not be difficult to fit into a category.

              Another part of 101 that also has to be met is the utility consideration.
              Under this part of 101, a proper investigation includes looking at the utility of the invention and asking whether the claimed utility fits within the Useful Arts.

              This too, is not a difficult test to pass.

              And quite contrary to the anti’s views, business methods easily fit here (the basis for this is easy to see by noting that the scientific method is routinely applied in the inventions concerning business methods – See Deming, et al).

              It is only through judicial activism that judge-made philosophical scrutiny is “manufactured” so that the Justices can keep their finger in the 101 nose of wax.

              As written by Congress -and duly reflected in the Congressional record, (and quite opposite to the agenda-driven protests of Ned Heller), 101 was meant as a wide open welcoming gate. Of course, the Court has ever endeavored, through implicit rewritings and insertion of dicta, and then launching from that dicta in later cases to negate the actions of Congress.

            3. Les, the first programmed computer was eligible. Thereafter, simply changing the programming changes something non statutory.

              If the programmed computer does something new that is otherwise eligible, that can be claimed. Everyone seems to agree with that.

              1. the first programmed computer was eligible. Thereafter, simply changing the programming changes something non statutory.

                The vap1d “House/Morse” mythology has been thoroughly debunked Ned.

                Nothing in Alice changes that.

              2. anon, the problem with this “thorough” debunking you reference is that no one knows what you are talking about.

                Second, the SC has repeatedly said that simply adding the old and conventional to the ineligible is not enough. See, e.g., Benson, Flook, Prometheus and Alice.

                Debunked?

                Hardly.

                To the extent you continue to cling bitterly to the discredited notion that simply reciting old and conventional computers in a claim that is otherwise nonstatutory, well, that is downright sad.

                I can only hope that you are honest with your clients and tell them the truth.

              3. “Thereafter, simply changing the programming changes something non statutory.

                If the programmed computer does something new that is otherwise eligible, that can be claimed. Everyone seems to agree with that.”

                Nonsense Ned. Changing the programing, at a minimum is a new use of an old machine. Moreover,while some may disagree, it creates something that fits in the patentable category of a “new machine.”

                Picking seeds out of cotton is old. But if you get a computer to do it, that’s new and computer that does it is patentable. Dictation/transcription is old. But if you got a computer to do it, that was new, even though computers and microphones and analog to digital converters were known.

              4. Les,

                You raise an interesting point: the line of thought in Congress action to rebuff the Activist anti-patent Court by explicitly (read that as in addition to any other codification efforts going on) overturning a Court case and making the new use of an old machine is being actively dismissed as a point of law.

                I have brought this up previously in comments regarding – for argument’s sake – that even providing that somehow “oldbox” without change can obtain a new capability previously not there inherently, that the argument against software patents (as manufactures and machine components in their own right) still fails because of this explicit move by Congress (not Judge Rich) to tell the Court that such use was fully patent eligible.

                We have the Court to thank for this undefined “abstract” which is nothing more than the Court thrusting its finger into the 101 nose of wax.

              5. Well Les, let us agree then that a new use of an old machine is patentable, if at all, as a process. And to be eligible, a process must have a new result that is, at a minimum, physical.

                In the present case, managing risk, the process claimed does not result in something physically new, even though it involves the use of machines.

              6. “Well Les, let us agree then that a new use of an old machine is patentable, if at all, as a process. And to be eligible, a process must have a new result that is, at a minimum, physical.

                In the present case, managing risk, the process claimed does not result in something physically new, even though it involves the use of machines.”

                Sorry Ned. I can only agree up to the first period, and only that far if you got rid of the :”if at all”.

                The physicality requirement is nonsense. If my invention is a new way to sharpen digital images, or a new way to colorize black and white images, there is no reason my claim has to recite insignificant post solution activities, such as printing, or displaying (if that meets the physicality requirement) in order to be granted a patent.
                That would be simply be absurd and would once again require me to sue “end users” instead of camera or computer manufactures. Likewise, it would be absurd to limit my claim to the speech to text to embodiments wherein the text was printed.
                …unless you agree that bits in a computer memory are physical…

              7. Inventions concerning encryption are not “physical” in the way that Ned is attempting to use the word.

                Of course, this example is well known to Ned, so I am “not sure” why Ned would advance a thought that cannot encompass something that he is well aware of.

              8. anon, give any claim from an issued patent that covers encryption, and we can see just what the PTO will allow and whether it is physical.

                Also, what M0r0n of a patent attorney would ever not limit his claim to signals? Just patent the math? That is asking for a 101 challenge.

  14. Worth repeating front and center:

    “Inventive concept”, “inventive gist”, “invention”, “spirit of the invention,” and many more myriad terms were used and abused by the judiciary in a previous era, an era that Congress had allowed the courts the power and authority to define “invention” by the tool of common law evolution.

    The Court took on a decidedly anti-patent stance in the 1930s and 1940s, prompting a comment that “the only valid patent was one that had not yet appeared before us.”

    Congress reacted and smacked the then-overtly anti-patent Court down, EXPRESSLY removing from that court the power and authority to set invention by common law judicial power. Congress created 101 as an open gate to patent eligibility and moved a portion to 103 under patentability. They did this in 1952.

    This is all historical fact.

    I have previously supplied the congressional record, points from Frederico and the notes to 103 as listed at the Cornell law sight verifying these facts.

    The Court has snubbed Congress – and has snubbed the very constitution it is meant to protect by doing so. The Court has tossed aside the explicit words of Congress and returned to its power hungry days of pre-1952.

    People celebrating may be doing so for their own personal reasons and beliefs. Celebrate then your immediate joy.

    But those that have sworn a state oath – those attorneys among us – should realize that our respective oaths are not to the Supreme Court, but to the Constitution. So no matter if the decision today fits with your own personal desires regarding patent law and how you may want it be – or not, today should be a day of great sadness for the respect and duty sworn to the ultimate law of our land.

    1. “The Court has snubbed Congress”

      O noes?

      “and has snubbed the very constitution it is meant to protect by doing so. ”

      Lol wut?

      “People celebrating may be doing so for their own personal reasons and beliefs. Celebrate then your immediate joy.”

      Yay!

    2. anon, I am sorry, but your post is simply wide of the mark. The court has been clear on this topic for a very long time save for one decision, Bilski.

      The court pointed out, clearly, that the nominalist approach that you urge, and that Judge Rich urged the past, that if one simply recites in a claim a process, machine, manufacture or composition, that the claim is eligible. That is not and cannot be the law. The court is always looked to what was new in the claim to determine whether that was eligible. If it is not, the question then becomes whether the claim is directed to that subject matter to effectively preempt it, or whether it is directed to an application of it. But this is always been the law even from Morse.

      1. You are wrong in both me being wide of the mark and thinking that I advocate a strict category only approach.

        I have made this explicitly clear – do not misrepresent my position.

      1. This would be the same Dale Halling, I assume, who once argued that a film distributor or theatre could be liable for patent infringement for showing a movie in which an actor appears to use a patented device.

        Yes, that actually happened.

        Your patent txxbxggers, folks. They never cease to amuse.

        Did you ever figure out the Prometheus case, Dale?

    3. today should be a day of great sadness for the respect and duty sworn to the ultimate law of our land.

      Good lord get over yourself.

  15. For a big laugh you just gotta read the thread over at G’s place. I won’t link because the increased traffic might confuse the blog owner.

    I definitely recommend preservation for posterity, however. It’s priceless. Even better than the Prometheus meltdown.

    Best part? Maybe this from the comments: EDITORIAL NOTE: Comment deleted and user banned for erroneously asserting as a matter of fact that software is just math.

    ROTFLMAO

    1. Funny that comment about software and math.

      You rather evaded a simple and direct question I asked of you on that very topic.

      You dissembled and vom1ted out a response about a math book but you never answered the direct question in an honest and straighforward manner.

      Let’s give it another shot:

      Straight up simple and honest:

      Can you obtain a copyright for math? (Not a mathbook, just math.)

      (and what is up with your obsession with the Big G?)

    2. MM, G’s has gone apoplectic. He must or his clients must have a lot invested in “recited a computer and make eligible” kind of patents.

      1. The glass shards from which you cast stones Ned (advocacy and client interests) shred your feet.

        Make sure you tend to that before the loss of blood makes you dizzy (hmm, that may be too late).

      2. He must or his clients must have a lot invested in “recited a computer and make eligible” kind of patents.

        Of course they did. They are low-rent true-believer schmucks.

  16. Ryan computers can’t do everything.

    Programmable digital computers can process any data that they are programmed to process.

    The only limitations are time and memory capacity.

    This has been known for a long, long time (many decades at least). Every rejection of every computer-implemented claim should begin with this statement. Some people at the PTO seem to be unaware of basic facts like this. They behave as if they were born yesterday and nobody except the applicant ever imagined that computers would make information processing quicker and more accurate.

    It’s as if someone invented a shovel in year 1 and later, for the next fifty years, the PTO grants five million different patents on using the shovel to dig dirt from ten thousand different dirtpiles … because “different.”

    1. lol- tell me one example of your shovels that comes close to being a reasonable analogy.

      You are doing that “magic” ‘oldbox’ thing again.

      (this decision does not change the fact that you have never once provided a logical and intellectually honest answer to that basic question)

      1. tell me one example of your shovels that comes close to being a reasonable analogy

        Are you kidding me? How about the patent on “identifying available real estate.”

        Just for starters, you know. That’s the tip of the iceberg.

        Shovels move dirt. Computers process information.

        This is basic stuff. People who are confused are ignorant or dishonest or both.

        Now we have a 9-0 Supreme Court decision — another one — smacking you in your flapping puss.

        Are you ready to grow up?

        1. You keep on dodging and asking others to group up when it is you that needs to do so.

          The analogy you need to focus on is “shovel” to “oldbox” keeping in mind that the present capabilities of “oldbox” is all that you get with that single unchanged “oldbox.”

          You want something new? something with a new capability that “oldbox” does not have? You want to change “oldbox?” That’s called invention. That’s called a new and improved shovel.

          Try to be just a little intellectually honest here.

        2. Shovels move dirt. Computers process information.

          Great – you won’t mind then that you stick with “oldbox” then.

          What’s that you say? You cannot “move the dirt” because your shovel is just not good enough or has that capability that you want? You want a different shovel?

          Speak up son.

    2. Not true.

      Lets say somebody wanted to implement the abstract concept of:

      1) creating a novel work of art
      2) engaging in psyhoanalysis with a patient
      3) teaching a student a new task in a manner that is fully adaptive to the student’s needs.
      etc.

      Basically, anything that requires a human level of intersubjectivity.

      These inventions would likely be patent eligible and nonobvious.

      Another example is quantum computing, which applies the laws of quantum mechanics to a computer.

      the problem is how to distinguish these innovative uses of computing from trivial applications. Not claiming I know all of the answers but it doesn’t seem like 103 (in its current state) would fare any better than 101 in dealing with these issues

      1. …and into the Non-Useful Arts canards go the “But-I-slept-at-a-Holiday-Inn-last-night crowd.

        NON-STARTER. Do not pass Go. Do not collect $200.

    3. “It’s as if someone invented a shovel in year 1 and later, for the next fifty years, the PTO grants five million different patents on using the shovel to dig dirt from ten thousand different dirtpiles … because “different.””

      No, its as if someone invented a shovel in year 1 and later, for the next fifty years, the PTO grants five million different patents on modified shovels to dig different kinds of dirt and make different kinds of holes and for shoveling coal and not digging dirt and for snow relocation and not digging dirt and made of plastic and not iron and made of aluminum and not iron and with aluminum handles and not wood… because “different.”

      1. No aspersion to Les, but Malcolm, when even Les knocks the snot out of your pathet1c arguments, you need to find another line of work.

  17. companies like Apple, IBM, Microsoft, Google and others have had the value of their patent portfolios nearly completely erased today.

    That must have had a huge impact on the value of those companies because everybody knows that all jnky patents are soooooooo important.

    Or not.

    link to google.com

    LOL

    1. companies like Apple, IBM, Microsoft, Google and others have had the value of their patent portfolios nearly completely erased today.
      If you want to react to Gene’s hyperbolic comments, do so over there. Oh wait, you are banned there — LMAO.

      because everybody knows that all jnky patents are soooooooo important.
      IBM generates nearly $1B/year in licensing their patents. It is amazing how little you know.

      1. Oh wait, you are banned there — LMAO.

        No, I’m not. But I rarely post there because G is an clueless idi0t and so are his fellow sycophants. It is good for a laugh, though.

        IBM generates nearly $1B/year in licensing their patents.

        So?

      2. “IBM generates nearly $1B/year in licensing their patents. It is amazing how little you know.”

        Ah, good, then, we have now identified somewhat under 0.1 percent of The Mighty Quinn’s predicted $1,000,000,000,000 loss in value for companies like Apple, IBM, MS, and Google.

        So, let us see…. that is one part down, 999 parts to go.

        Oh Noes.

        1. P.S., I should add that this presumes all of IBM’s nearly 1 bio in licensing revenues is from patents relevant to this discussion.

          Noting that many of their patents relate to circuitry and the like, that seems to be an unlikely proposition.

          1. What portion would you estimate and use, Mellow?

            Similarly, feel free to make a guess at a proper adjustment of the following patent grants:

            IBM – 6788
            Samsung – 4652
            Canon KK – 3918
            Sony Corp – 3315
            LG Electronics – 3117
            Microsoft – 2814
            Toshiba Corp – 2679
            Panasonic Corp – 2649
            Hitachi, Ltd – 2399
            Google, Inc – 2190
            Hoffmann-LaRoche – 458
            Novartis – 287
            Merck & Co – 268
            Sanofi-Aventis – 238
            Allergan – 196
            Merck GmbH – 155
            GlaxoSmithKline LLC – 129
            Vertex Pharmaceuticals – 125
            Amgen, Inc – 115
            Pfizer – 107

            Thanks (do I need to spell out the point for you?)

              1. snotbox?

                A bit touchy, aren’t we?

                But please – you did not supply any amended estimates. Surely you could still do that while the main post of yours is still in moderation, right?

                That might save us a round or two of discussion, and would certainly save you some embarrassment.

              2. Not touchy, just pointing out your unwarranted and unnecessary patronizingly smug behavior. When my teen daughters display such behavior (usually secondary to a certain amount of PMS-generated irritability (not that I am implying your own behavior is similarly originated)), I point that out to them, too.

                “you did not supply any amended estimates”

                I did not supply amended estimates because they are wholly inapposite to this sub-thread. I don’t know what your view here is (while my prior comment is still pending mods), but what I see is 1.4.1 (full sized, as if my comment is an original sub-thread starter), but it’s actually off of sub-thread 36.

                In my (unseen) comment, I point out that the “nearly $1Bn” IBM licensing revenue mentioned by “Oh no” in sub-36 is less than one tenth of one percent of the amount of market loss (over 1T) prophesied by the great and Mighty Nostradamus GQ.

                In my follow-up “PS”, all I did was merely point out that we are not even sure what amount of IBM’s nearly 1Bn licensing revenue is from software-type inventions vs. hardware/circuit-type inventions.

                Now, on the off chance you still want some sort of breakdown, despite the fact that it’s not relevant, I have the following comments.

                1. Scrape off any company listed from Hoffman LR on down. I really don’t care whether you will credit my own knowledge or not, but I say here for any reading that any revenues these companies (full list below) derive from licensure of claims relevant to the CLS v Alice decision are a vanishingly small portion of their revenues – if any at all. They’re so far from being relevant that I can’t even figure out why you would bother to list them.
                Hoffmann-LaRoche – 458
                Novartis – 287
                Merck & Co – 268
                Sanofi-Aventis – 238
                Allergan – 196
                Merck GmbH – 155
                GlaxoSmithKline LLC – 129
                Vertex Pharmaceuticals – 125
                Amgen, Inc – 115
                Pfizer – 107

                2. Posit “Oh no” with his/her comment that IBM derives “nearly $ 1 billion” in patent licensing revenues. Fine. IBM is well-known as the king of licensing its properties for a reason. So here – let’s say that ALL THE REST of your list between IBM and Google ALSO derive “nearly $1 billion” from licensing their patents.

                The do NOT, but let’s just say, arguendo, that they do.

                What do we have? Count `em up, slim. Waaaah-HOOO! We’re all the way up to nearly $10 billion in licensing revenues.

                Which is still less than 1 percent of the market loss The Great And Mighty Nostradamus GQ claimed for these companies.

                That’s why your snotbox little comment is pretty much irrelevant to the conversation…

                … even if my 3-hrs moderated comment never becomes publicly available.

                1. Um,… How exactly Mallow has posts be inclined to be embarrassing?

                  You know, for someone who has chosen a moniker to poke fun at a high-strung poster, you have shown yourself to be at that same level of being high strung.

                  Your engaging in AOOTWMD is not a recommended tactic. Why don’t you just chill and address the numbers I presented. Maybe we can piece together your message that is caught in the mod trap.

            1. Think what you like, figment. Still, your comments in this particular sub-thread are both silly and inane.

              Slightly entertaining in the sense of having something to view, like SpongeBob, but otherwise not so much.

  18. The Big G: For example, these claims to IBM’s Watson computer, which is really akin to the first generation omnipotent Star Trek computer, seem to be quite clearly patent ineligible. … It is impossible to see how the Watson claims remain patent eligible in light of this ruling and how the Alice claims were written.

    It’s impossible to see why anybody could possibly care that Watson isn’t eligible for patenting. Did the price for a Watson just go down? Did IBM’s stock tank?

    the Supreme Court decision in Alice will render many hundreds of thousands of software patents completely useless.

    Useless patents!!! Oh noes!!!! Never mind that the people will still continue to develop software at the exact same rate if not faster now that those patents are flushed down the txxlet.

    The stock market response to this terrible tragedy? A new record high.

    LOL.

    1. I can hardly believe that people relied on Rich’s view of things for so long when anyone who paid attention knew his view of 101 was flatly inconsistent with Benson and its progeny.

      1. And the merry-go-round of CRP is now fully supercharged (notwithstanding the FACT that what was dicta in Benson remains dicta in Benson)

  19. It’s painful reading that decision. The Court seems to be focused on the “abstract” issue, which is about patentability, while repeatedly mentioning prior art, which is about novelty and obviousness. The Court ties the concepts together with “Accordingly, in applying the §101 exception, we must distinguish between patents that claim the “buildin[g] block[s]’” of human ingenuity and those that integrate the building blocks into something more…” This seems unnecessary. A straight obviousness rejection would have been more straightforward. The record that reached the court may not have supported that. It may be an attempt by the Court to do something the PTO does not do well – find obviousness in non-patent prior art. The end result is thus confusing.

    Perhaps the most useful line in the decision is “It is
    enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here. Both are squarely within the realm of “abstract ideas” as we have used that term.”
    The court is reaffirming Bilski, but not extending it.

    1. And yet, Mr. Nagle, the courts have been using this “novel subject matter” test forever. See, e.g., In re Russell, 48 F.2d 668 (C.C.P.A. 1931), Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 68 S. Ct. 440, 92 L. Ed. 588 (1948) for two early examples.

      Only Rich, the CCPA and some on the Federal Circuit were nominalists, insisting that if a claim nominally recited a process, a machine, a manufacture or a composition that 101 was satisfied. That has never been the law, and he CCPA, and the Federal Circuit, to the extent they never understood this, have extended this argument about 101 for far, far too long.

      1. Notwithstanding your continued unethical treatment of Russell, is it no surprise that you pick two PRE 1952 cases Ned?

      2. I think that you group into your “nominalist” group those that look at 101 as intended by Congress as a wide open gate (including those that find implicit law WRITING to have serious separation of power infirmities).

          1. Ned, my wise open gate is based on the explicit words of 101 and the words of Congress.

            Once again you miss exactly which branch of the government is ignoring those explicit words.

            The Cult of the Royal Nine is a disgrace to what we as attorneys have sworn to.

    2. The court is reaffirming Bilski, but not extending it.

      I don’t think that’s correct.

      The extension is that “on a computer” does not suffice to integrate and confer eligibility upon the otherwise ineligible abstraction (certainly not this particular abstraction and almost surely not many other abstractions that are also not “meaningfully distinct” from the abstraction in Bilski or the abstraction in Alice).

      The lynchpin to eligibility is novel structure or a physical transformation effected by novel steps. You can be pretty much assured of that. That’s nothing new, of course. Folding in ineligible subject matter in an effort to obtain a patentable claim has been a risky business for many years. And it just got a lot riskier. Enforcement of such claims will be difficult, to say the least.

      And that’s great news for everybody, particularly for people who are good at programming computers to do what computers were built to do.

      1. “The extension is that “on a computer” does not suffice to integrate and confer eligibility upon the otherwise ineligible abstraction”

        To the extent that such needed to be made explicit to re res sure.

      2. The extension is that “on a computer” does not suffice to integrate and confer eligibility upon the otherwise ineligible abstraction (certainly not this particular abstraction and almost surely not many other abstractions that are also not “meaningfully distinct” from the abstraction in Bilski or the abstraction in Alice).

        Those of us who were paying attention already knew this. Most of the Federal Circuit also already knew this.

        1. lol – the artful scriviner has moved the goal posts.

          The phrase “on a computer” must be analyzed carefully – given the STIPULATIONS made by both parties and what issue was – and perhaps more importantly was NOT before the Supreme Court.

    3. The court is reaffirming Bilski, but not extending it.

      I have to wonder how – given that Ned was so outspoken prior to the release of this decision against the Court and it’s lack of defining “abstract” in Bilski, how he feels about the Court NOT only “affirming” Bilski, but going even further and flat out stating that it WON’T define “abstract.”

      Separately, since the Court is not even pretending to pay attention to the explicit words of Congress, should the newly written (and implicitly written) law be struck down as void for vagueness, given that the law writers (the Court) won’t tell you a critical element (what is “abstract”)?

      1. I have to wonder how – given that Ned was so outspoken prior to the release of this decision against the Court and it’s lack of defining “abstract” in Bilski, how he feels about the Court NOT only “affirming” Bilski, but going even further and flat out stating that it WON’T define “abstract.”

        I’m sure I’m going to lose sleep over this puzzling contradiction tonight.

        Seriously, though, champagne makes me pretty sleepy.

        I wonder how this case will impact ABL’s petition for cert? I believe I’m hearing a pre-echo of the world’s loudest flushing sound.

        1. It’s not that puzzling – it’s the “Oh-it’s-great-because-it-appears-to-align-with-my-agenda” syndrome.

          The very same one that makes “6 a genius” and the very same one that makes “everyone-that-doesn’t-agree-with-me-and-Malcolm-must-not-get-it”

          Never mind actually applying any sense of critical legal thinking.

  20. Pssssst. O.K., look; if you promise not to tell anyone, I’ll give you the primary reason they elected to not define “abstract” :

    The judges were strongly and widely split over such a definition, and were otherwise in a position to issue a rare unanimous decision.

    So they took the easier way out: Agree where they could, and put off this critically important question for another day, another case; if ever.

    The district judges / courts, prosecution and litigation attorneys and their firms, inventor / innovators, companies of all sizes — totaling in the millions — be dam*ed.

  21. Ryan: The only way to get around this is for somebody to make the argument that adding a general purpose computer to anything is obvious per se. The problem with this is it isn’t true because computers can’t do everything.

    There is no information processing function that you can articulate that a computer is incapable of performing once its been “configured” to accept the input and perform the mathematical calculations necessary to produce the desired output.

    That’s why functional claiming of “new” information-processing machines is a joke.

    TB: That well is easily poisoned with a reference that says use ANY process or thing with a computer.

    That well was poisoned long, long ago. As everyone knows, many of the folks most vehemently opposed and appalled by so-called “software patents” are some of the best programmers out there. Likewise, many of the most vociferous proponents of so-called “software patents” are lawyers who couldn’t program themselves out of a paper bag if their life depended on it.

    1. Your “best programmers” being the typical empty-legal knowledge folks at places like techdirt = massive Malcolm FAIL

      1. Those empty headed/i> skilled people are over at Gene’s place too. They are everywhere. Disparaging them as zealots, and as you have in the past, or by this ad hominum does not change the factthat these are technically informed and intelligent people. You have limited your mental construct to abstract the people to whom a patent meaningfully serves. There is a real world, observe it – be informed. Acknowledge honestly that priori reasoning cannot traverse imperfect and fuzzy boundaries, but you can open your eyes to see and accept that which you do not feel.

    2. MM, I can’t wait until this hits your little chemical realm. Oh the howls we will hear shall be marvelous.

      You don’t seem to realize that the dark 9 have just said there is no law for patents. Judges may do as they please. Watch my dirty retired troll typing dog. It will come around to the chemical people.

    3. Please approve my prior post, moderator.

      I see, and I quote from Q’s site: “In what can only be described as an intellectually bankrupt opinion, …”

    1. Yup. Or we don’t know how to define flash of genius, but we know it when we see it.

      Completely usurped the 1952 Patent Act. Presumption of invalidity. Collapse of 102, 103, 112 all into 101. No factual evidence all is a apparently a matter of law to be considered de nova by the judge. So, the judge looks at any patent and says this is an abstract idea now prove to me that it isn’t. What have you don’t more than the abstract idea? That is the current law.

      We are a third world country in denial. Another 20 years and there will be no mistaking it.

      1. Just wondering why you think this implicates “flash of genius” because it clearly seems to not. I’d argue there is plenty of genius in deriving E=MC2 or F=ma.

        1. “clearly seem to not” How is that?

          The judge summarizes your invention as an abstract concept (which any invention can be summed up as such. The SCOTUS said this themselves.) So a presumption of invalidity. Then the judge looks to see if there is something significantly more, which of course is the flash of genius test. So, no presumption of validity. No facts. De nova review of everything. A judge comes up on their own with some nonsense of an abstract idea and then just says the rest doesn’t float my boat, so you are still invalid.

          A joke. A joke. A joke. That is not the application of law. That is the arrogation of the law by the justices. They are essentially saying there is no law. We are going to do whatever we want and empower our brethren to do whatever they want. Be afraid. We march closer to the end.

          1. That is a bit apocalyptic. The “something more” test is not a flash of genius test, but I agree it is ambiguous, and that the Court is indicating hostility to patent protection in this area, that may exceed what Congress intended in 1952.

            The real thing that people can, and perhaps should, complain about, is that the case overrules Diehr while saying it does not. Or, at the very least, it says that Diehr is not a universally applicable case and you need a tangible product (i.e. rubber, perhaps some sort of glass tempering method) for it to be applicable.

            Honestly, I think that this line of decisions is silly, however, the Alice/Bilski type patents also present their own problems (particularly at the Patent Office), and the only real, practical alternative, would be to expand examiner’s discretion under official notice, which would be another uncomfortable alternative (but it would solve a lot of these cases which get this far because they are hard to reject with evidence for each step of the method, but are intuitively rejectable by a PHOSITA).

            1. It does not overrule Diehr, it applies Diehr. The part you think was overruled was not its holding, but pure orbiter dicta — citing favorably to In re Bergy and Judge Rich.

              Now, that was a mistake that the Supreme Court finally realized when it took up Bilski and had to “overrule” State Street Bank. Rich always was a literalist — if the claim nominally recited a computer, it was eligible. See his opinion in the overruled Benson.

              The Diehr dicta has been gone since at least Bilski.

              1. The Diehr dicta has been gone since at least Bilski.

                Wrong – Diehr was actually strengthened in Bilski Ned, with its ascendance over both Benson and Flook captured in a direct quote shared with you many many many times.

            2. Diehr stands for the proposition that the mere presence of ineligible subject matter in a claim does not per se render that claim ineligible.

              That banal holding is still good law, as far as I can tell.

              Prometheus wisely put to bed the Dierhbot zombie interpretation of Diehr (i.e., that the mere presence of eligible subject matter in a claim rendered the claim per se eligible).

              But you know how it is with zombies …

              1. rendered the claim per se eligible).

                Nice strawman – no one ever advanced ANY per se eligibility.

                Except maybe Les (whom I have tried to take his car keys when so done)

              2. You could be right, but lets face facts, post-Diehr-pre-Bilski jurisprudence interpreted Diehr much more broadly than you claim. In many ways it treated Diehr as overruling (and adopting Judge Rich’s criticisms of) Flook and Benson. This is, a narrowing of that jurisprudence at the very least.

                What it changed/narrowed/etc is mostly irrelevant now, because the court wont change it, and, if anything, Congress will narrow 101 rather than expand it. What matters now is whether the doctrine leaks into other areas, and gives examiners more flexibility in rejecting claims, as I alluded to earlier.

  22. Serious question:

    What is the difference between “directed to” an abstract idea (whatever that is deemed to be) – and-
    “an application of” an abstract idea?

    And is ANY claim safe from a “distilled gist of” approach that seemingly ignores the “something more?”

    1. “What is the difference between “directed to” an abstract idea (whatever that is deemed to be) – and-
      “an application of” an abstract idea?

      And is ANY claim safe from a “distilled gist of” approach that seemingly ignores the “something more?””

      Your first question is nonsensical. It’s like asking what is the difference between a cow and a house? They’re two completely different things, in practically every way. I could show you an example of each and maybe you could figure out what the “difference” is on your own perhaps.

      And yes, any claim that does not preempt all uses of one of the big 3 categories is completely safe from a “distilled gist of” approach that seemingly ignores the “something more”.

      1. “What is the difference between “directed to” an abstract idea (whatever that is deemed to be) – and- “an application of” an abstract idea?

        “An idea for a device that will make it easier to remember when to eat lunch.” <— directed to an abstract idea

        "A device that will make it easier to remember when to eat lunch" <— directed to an abstract idea

        "A computer configured to receive data and process it so it is easier to remember when to eat lunch" <– directed to an abstract idea

        "A computer configured to receive data about when I want to eat lunch, store that data, and then transmit the data to me at a time prior to the time when I want to eat lunch." <— directed to an abstract idea

        Somewhere way, way, way, way down this "ladder" is a description of a machine that recites novel structure and actually works. That's an application of the abstract idea. That's eligible for patenting.

        This really is very simple stuff. Some people think it's "hard" because they've been raised to believe that function is equivalent to structure. Where did they learn this? In part, from some judges who, thankfully, are no longer going to be around to mislead people with self-serving b.s.

          1. Your picture-claim bias is not an answer.

            An answer is still an answer even if you don’t like the answer and even if the answer makes your life a wee bit harder.

            I’m really sorry to break this news to you. I would have expected your parents to have informed you about how the world works when you were four years old but apparently that never happened.

              1. “Nice pedanticism – did you have a hard time understanding the meaning inspite of the typo?”

                No actually I don’t. And it wasn’t a “typo”, it was you using the wrong word for the situation without meaning to. And as it happens I just found out today that psychopaths have a certain “way with words” that leads to that phenomena. They express themselves in what others would consider an odd fashion, but which seems perfectly fine, and perhaps even normal, to themselves. Then when they’re called out for it they say the other person is just being pedantic or the difference is mere semantics. One of the researchers it turns out had enough anecdotes about this phenomena that he considered writing a couple of volumes on the subject.

                It’s ok brosef. The more I get to know psychopaths the more your posts and manner of speaking make sense.

              2. “What B$ 6″

                Tell it to the researchers and legions of psychopaths, not me, k? Though yes, I will surely grant that sometimes we must blaze trails with our terminology in the field of patents. That’s one reason why you went undetected for so long. But yes, indeed I had to do so today to try to explain the lumping in the decision to re res that couldn’t get it unless I broke it down into kindergarten speech.

              3. Utter B$ 6 – you jumped on a typo of mine – and in contrast, defended a non-typo of Malcolm’s (regarding the exceptions to the judicial doctrine of printed matter).

                Clearly you are just tr011ing and playing your silly “it’s all subjective so anything goes” game.

                Come back when you want to discuss things with a modicum of intellectual honesty.

              4. Your last post makes no sense given that my actions regarding typos has always been consistent and is consistent with my comments here.

                Is that your version of a statement admitting that you were wrong?

                Oddly, you seem to have a really hard time with that (the admitting part, the getting wrong part is like second nature to you).

      2. 6 I have 2 or 3 questions based on your concluding statement above:

        1) How did the recited establishment and maintenance of shadow accounts preempt ALL “intermediate settlement”?

        2) Did all prior art “intermediate settlement” of the prior art require the recited shadow account processing?

        2a) If so, why weren’t the claims rejected under 102?

        1. 1 the recited establishment and maintenance of shadow.accounts does not preempt all intermediate settlement. The supremes simply noted that the instant specific way of performing intermediate settlement involving shadow accounts is still just a manner of intermediated settlement. They then noted that intermediated settlement, all forms of it, are excluded subject matter. Then noting that they notice the claim implicates some excluded subject matter and proceed to step 2 of.their analysis.

          2. Blatantly not.

          1. Very good –

            If:

            “The supremes simply noted that the instant specific way of performing intermediate settlement involving shadow accounts is still just a manner of intermediated settlement. ”

            Then upon what basis did they justify:

            “They then noted that intermediated settlement, all forms of it, are excluded subject matter. ”

            Natural Law? Product of Nature?

            Or abstract idea that does not preempt all application of the abstract idea and is therefore not an abstract idea?

            1. Les,

              Don’t be silly, the Court explicitly told you why: “Abstract.” (note: not business method – 3, the new four, is still not 5; and not software per se – even though the revisionists are already trying to rewrite the words the Court actually used).

              Oh, you want to know what “Abstract” means?

              LOL -Sorry, the Court has explicitly said – We are not going to tell you.

              Great job Court.

              And great job Ned Heller for being able to keep your eyes clenched tight to this massive amplification of what you held to be so despicable in the Bilski case. Amazing whitewash job – almost (verily almost!) as amazing as your compliments of 6 as GENIUS – when he agrees with your agenda).

              1. You know, anon, even though the court did not elaborate on what it means by abstract, Prometheus and Alice clearly held that adding the old and conventional to the otherwise ineligible is not enough.

                The historic case law regarding “abstractness” is now back in play, including the cases on business methods, printed matter and the like. These are and were abstract because they were not machines, manufactures or compositions. See, e.g., In re Russel, and In re Patton, both binding precedent on the Federal Circuit.

                Take it to the bank, anon, all nonstatutory subject matter remains ineligible regardless that one adds the old and conventional to the claim. There can be no serious argument about this anymore.

                The only exception of is if the otherwise non statutory subject matter is integrated, as in Diehr, into the otherwise statutory to produce a new or improved result. The court has cited Diehr for this proposition in both Prometheus and Alice.

              2. Ned, It was you that balked so fiercely at Bilski right before Alice came out.

                You sing a completely different tune (or rather, your silence on that tune you recently screamed about) speaks more than you might realize.

                You have offered ZERO rationale for this change in your view, and you seem completely oblivious that Alice is simply far far far worse on that accord than was Bilski

                Further, Your “back in play” ignore the reality of law and ignores the fact that your version of the old cases is simply wrong or is inapposite given the CHANGES in law.

                And once again, what was the improvement in Diehr, given that perfect cures were actually achieved prior to that case.

    2. OK, Malcolm and 6 don’t want to give serious answers (not that such is surprising), but this remains a serious question.

      Is there no non-pedantic answer to the difference between “directed to” and “an application of?”

  23. This decision will do untold damage to the patent system as a whole. The Court has totally shredded the patent law, by simply ignoring the bedrock analytical step of looking at the claims.

    Here’s the totally goofy statement in the decision:

    On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.

    Puzzling. I don’t see that language anywhere in the claims.

    Further, let’s look at the way securities markets work. For at least the last 75 years, EVERY securities trades uses an intermediary for settlement, and for the last 30, it’s been by computer. Here’s why.

    After buyer B and seller S say “done,” a few minutes later, the “novated” into a first contract between buyer B and clearing agent C, and a second contract between seller S and clearing agent C. From that point forward, if either B or S defaults, C still makes good to the other, and deals with the default on its own. This is EVERY trade conducted on an exchange, since at least 1940.

    Alice’s invention was to move the computer processing for reducing settlement risk to a different point in the trade clearing process. Instead of doing the settlement at the end of the trading day, Alice does the processing on the fly, as each trade is entered. Alice’s invention cannot be done in the human mind, at least not in any meaningful sense. Alice’s invention takes advantage of newer, faster computers, but also relies on a lot of technology and infrastructure that doesn’t exist but for the invention.

    “Intermediated settlement” is not the invention. The invention is the claims. The “shadow records” are crucial to getting the advantages of the invention relative to prior art “intermediated settlement.”

    1. My take-away: claims must include: a “machine [which is not a computer executing code] or a transformation of matter” (Bilski), or, include something beyond merely: “ ‘a fundamental economic practice long prevalent in our system of commerce.’” Further, claims cannot be directed to a method of diagnosis or analysis of a natural process, after Mayo v. Prometheus, even where the diagnosis relates to or controls dosing of a drug. There still is a lot of patentable subject matter left. But…

      “financial-transaction related” patents, diagnostic-related patents and many patents with certain types of claims to DNA/RNA (Ass’n of Mol. Pathologists) are virtually worthless. It is time for patent reform legislation, but not the legislation Congress recently tabled — which would further reduce the value of patents. We need reform to bring back the industries “recent judicial decisions” have destroyed.

      1. Eric, close, but no cigar. See post 16 for more.

        Read in re Russell for a clue.

        “The mere arrangement of printed matter on a sheet or sheets of paper, in book form or otherwise, does not constitute “any new and useful art, machine, manufacture, or composition of matter,” or “any new and useful improvements thereof,” as provided in section 4886 of the Revised Statutes, 35 USCA § 31″ In re Russell, 48 F.2d 668 (C.C.P.A. 1931).

        If the novel subject matter is neither a machine, manufacture or composition, nor an improvement in one of these, the subject matter is ineligible — abstract.

        Simply reciting a machine, a manufacture or composition certainly is not enough if the novel subject matter is ineligible.

        1. Ned, your love affair with Russell is utterly inane.

          Set B is not Set A.

          What part of this are you having trouble understanding?

          1. You know, anon, you might want to restate you set theory here in light of Alice that others might learn from you — or at least understand what you are talking about.

            Try to keep it simple.

            1. My set theory example to you was not geared to – and is not changed by – the Alice case.

              It is outright unethical of you to knowingly misrepresent the material understanding of the law as you are doing.

            2. Per Ned’s request:

              link to patently.wpengine.com

              and the surrounding discussion points.

              I have repeatedly implored Ned to maintain his diligence in understanding the differences between Set B and Set C.

              He persists in purposefully and knowingly giving a false take on the case law from Russell.

              Shameful.

              1. Yeah I don’t know why you had to make an a b c list of sets to simply say that some printed matter doesn’t raise the concerns that other printed matter did. And that the later printed matter is that which has, at least till now, concerned judges. Oh wait, yes I do know why you like to make lists!

                In either event, sure thing, perhaps c doesn’t raise the same concerns as b did. That printed matter in c raises still other things which ought to be of concern and so we may as well hit all of a and be done with it.

              2. Anon, no doubt software when executing in a computer is functional. But that does not make all software eligible.

                One has to again look at what is new about the software. It is that newness would has to be analyzed for eligibility. If the software transforms the machine, improves it, it certainly is eligible per Diehr. If the software does not do anything but calculate numbers, for example, calculating the Pythagorean theorem, and nothing more, that software does not improve the machine.

                As well, a programmed computer alone is old. Add new functionality with new software such that the computer is applied in a process like in Diehr, the new or improved process is eligible, and software, when sold might be an infringement.

                The problem you have anon, is that you fail to recognize that one has to look at what is new to determine whether the claimed subject matter is eligible. One cannot simply determine that the claimed subject matter is a process, machine, manufacture or composition. That is the discredited Rich approach, which always asked the wrong question such as whether a computer is a machine, when the proper question was always whether the claimed computer was new or improved machine.

              3. The canard of “all” mirrors the very same application of poor logic that permeated the post-Bilski threads and the purposeful ignoring of the distinction between the meanings of “categorically” and “as a category.”

                Given that Alice has turned out to be nothing more than the very worst of Bilski (including ironically the very thing that you denigrated Bilski for in the lack of a definition of “abstract”), there is no doubt in my mind that you Ned Heller will fully engage ALL of your decrepit 1ies that had been put to bed with sound logic.

                Even your immediate example is shoddy (as can be seen with the substitution of a single word: “for example, calculating the Arrhenius theorem, and nothing more,” – keeping in mind that single perfect cures were old in the art prior to Diehr (the improvement on a perfect cure is….)

                And I see now your deception on understanding Nazomi – or rather on “not understanding” is being shown:

                As well, a programmed computer alone is old. Add new functionality with new software such that the computer is applied in a process like in Diehr, the new or improved process is eligible, and software, when sold might be an infringement.

                Mighty brave of you to finally venture forth with the false-courage of inebriation of the intoxication effects of the Royal Nine writing their own map.

                Do me a favor and dust off that oath you swore when you first became an attorney. Check and make sure that you swore fealty to the constitution and not to the Supreme Court.

                Your allegiance is most definitely off.

                As to “The problem you have anon, is that you fail to recognize that one has to look at what is new to determine whether the claimed subject matter is eligible” it is you that is still not understanding that looking at the new is not constrained to ONLY looking at the new – even here the Royal Nine still dance through their addictive binge and mouth the words “claim as a whole.”

                Yes – you need a new and improved machine – I never said differently. But the predicate nonsense being spouted is essentially sometimes a machine is not a machine – sometimes a machine is an abstraction.

                The gobbledygook is there – just not where you think it is.

              4. And regardless of that – as I stated – my simple set explication on why your view of the Russell case is wrong – and your advocacy of that wrong view is a material breech of your ethical duties – has NOTHING to do with the Alice case.

                So put aside the dust kicking and address this pattern of repeat offenses of yours – ON THIS SEPARATE TOPIC of misrepresentation of material law – even if that misrepresentation is merely of minor significance when considered separately in your eye, as it indicates a perverse indifference to your legal obligation as an attorney (again – you really should check your own oath).

              5. And yes Ned, my words mirror the ABA model rules on professional misconduct (Rule 8.4 and the related comments to that section) for a reason.

                You are being given notice to be careful in your advocacy here. While Malcolm, under a pseudonym may feel more comfortable in his bankrupt and abject deceptions and misrepresentations, you may not want to expose yourself as he does. Your ability to engage in conduct involving dishonesty, fraud, deceit or misrepresentation (yes outside of the court) necessarily constrains your advocacy – EVERY BIT as you feel constrained NOT to join our conversations fully based on your duty to third parties.

      2. We need reform to bring back the industries “recent judicial decisions” have destroyed.

        Translation: Some patent attorneys are going to have to work harder which is the worst thing ever.

        Seriously, Eric, people working in those “industries” (including myself and many others) have been looking forward to these “destructive” decisions for years. It’s the patent system itself that’s in risk of being destroyed and the Supreme Court is doing a pretty decent job of mitigating that destruction with these decisions.

        Patents on information processing and information itself are not necessary to promote the processing of information nor the gathering of that information. Faster cheaper computers? Heck yes! Cheaper and more efficient data storage? Heck yes! Promote that stuff with sane patents and everything else will follow naturally. Have you noticed this thing called the Internet?

        We need reform to bring back the industries “recent judicial decisions” have destroyed.

        The stock market didn’t seem to notice Prometheus v. Mayo at all. Nor will this decision have any significant impact. That fact doesn’t square well with your views.

      3. Eric – you have zero credibility by referencing Bilski in your attempt to invoke MoT – that Court HELD the opposite: MoT not required.

        1. you have zero credibility by referencing Bilski in your attempt to invoke MoT – that Court HELD the opposite: MoT not required.

          The Court held that MoT was important and provided a useful clue to eligibility. It’s just that the mere presence of a machine or a transformation is not decisive. That’s because old machines or old transformations can not necessarily rescue a claim whose patentability hinges on ineligible subject matter.

          Thats trivial, of course. It’s also something that many of us have tried to teach you for years.

          The lynchpin to eligibility is the recitation of novel structure or novel steps that result in a physical transformation. Nail that down (not difficult at all if you’ve actually invented something worthy patent protection) and you’re golden.

            1. What part of “not a requirement” is confusing you?

              What part of “useful” and “important” but “not neceesarily decisive” is confusing to you?

              The answer is “none of it.” You’re just a dishonest hack.

              1. Then tell me of “honesty” and your repeated violations of that principle and then turning around and begging off that “Honesty is not required on a blog since this is not a court”

                The word for you Malcolm: Hypocrite.

    2. The SCOTUS opinion (in my opinion) is the flash of genius analysis. They have completely wiped out the 1952 Patent Act (and as you say the claims.)

      Now the test is a judge looks at it and decides whether they like it or not with a presumption of invalidity. Note that they started with a presumption it was invalid.

      1. Night, how so?

        First, did the ’52 Act overturn the printed matter doctrine? Let me quote:

        “The mere arrangement of printed matter on a sheet or sheets of paper, in book form or otherwise, does not constitute “any new and useful art, machine, manufacture, or composition of matter,” or “any new and useful improvements thereof,” as provided in section 4886 of the Revised Statutes, 35 USCA § 31.”

        In re Russell, 48 F.2d 668 (C.C.P.A. 1931). link to scholar.google.com

          1. Set B is STILL not Set A

            And you still haven’t learned how to articulate your views in English.

            What exactly is the problem? You really are the best example of a patent agent who should never have been allowed out of the shallow end of the pool. Your clients must think you’re rxtarded.

            1. Lol – the clear set theory example was previously given – you failed to point out any issues then. Why was that?

              That’s rhetorical – we both know why, right?

              1. the clear set theory example was previously given – you failed to point out any issues then. Why was that?

                This assumes that I read all of your comments. Why would anyone bother doing that?

              2. For your convenience Malcolm, see 29.2.1.1.1.2 where I have provided the link.

                I used simple set theory, so even you should be able to follow along.

                Of course, you have already volunteered an admission against your interests in knowing the controlling law regarding the exceptions to the judicial doctrine of printed matter, so you should be able to grasp this. Whether you decide to NOT engage in your usual dissembling on the matter is quite another story.

            2. Malcolm, anon is defending software from the printed matter doctrine because software is functional in a computer. When he doesn’t seem to understand is that the question is whether the difference between one piece of software and another piece of software improves the computer, or whether the computer with that software does something new in a larger context that is otherwise eligible.

              In other words, he fails to recognize the requirement in 101 about newness. He commits the Rich heresy – assuming that because the claim nominally recites a process, machine, manufacture or composition that it is eligible. He totally reads out of §101 its requirement of newness just as did Rich, and most recently as did Judge Rader in his concurring opinion in the en banc Alice v. CLS Bank case.

              1. You are misrepresenting my views yet again Ned.

                Please stop.

                Further – and separately – please stop misrepresenting the law concerning the exceptions to the judicial doctrine of printed matter.

              2. …and 6, stopping material misrepresentation of the law is NOT controlling by me. All that I am doing is offering a friendly reminder to those that ALREADY have a certain duty – that are ALREADY controlled by that duty.

                It is controlling by the ethical standards that lawyers swear to. You might be interested in checking out the ABA Model Rules of Professional Conduct to see exactly why “WHATEVER” and material misrepresentations in AND out of the court CONTROLLED for attorneys who have voluntarily taken a pertinent state oath.

                Advocacy (for real attorneys) simply does not permit the types of things that you have reserved for yourself: purposefully being wrong and taking a “law is subjective, totally in them ind, anything goes” approach.

                I suggest that you look into it – it will be far more enlightening to you to see which posters on this board have the real issues.

              3. “and 6, stopping material misrepresentation of the law is NOT controlling by me.”

                Oh I agree. They’re only attempts. Attempts that constantly fail and frustrate you. Thus furthering the cycle.

                “All that I am doing is offering a friendly reminder”

                Well your friendly demeanor could use further work even beyond saying plz.

                “It is controlling by the ethical standards that lawyers swear to.”

                “ABA Model Rules of Professional Conduct ”

                So find out whom enforces them and report him Mr. I’m so friendly. There’s no need for you to sit around and make attempt after attempt to control him yourself. Keep in mind that according to those same rules if you’re a lawlyer you’re obliged to do disclose that to the authorities. (Since you’re not a lawlyer tho you’re not obliged to do so lol).

              4. You are doing that projecting thing again 6.

                Further, you are taking my kind actions and trying to twist them into “control attempts” right after I finish telling you point blank that they are not control attempts. Your efforts to tr011 me (and control me) with repeated accusations of something simply untrue are of no effect.

                As to the model code, I shared that for your benefit, as you seem to like to pretend you know what’s up with people, your awareness of gash-darn-real controls that these folk personally have to answer to would seem to be of interest.

                As to reporting, well, Ned Heller is possibly reportable. I would need to check out the State of California code and procedures since I am not in that state. But as I have told others, at least Ned tries to have conversations on occasion. Sure, he sometimes bails when he cannot complete a conversation because of his third party interests, and I do wish he would simply say so. As to the number one offender Malcolm, well, him I would if I could – but I don’t have access to his identity, so my duty does not kick in. But as I indicated (hint: another reason you might be interested) – if Prof Crouch is under a reporting duty (i.e. still an active member of a bar that has adopted the ABA model rules), then he would have to report – even though he might desire not to, being a blog moderator and all and despite wanting to maintain poster anonymity.

        1. Mr. Medieval Think (aka Ned): Wow, they moved the goal posts so far back that now you are going to try to defend the printed matter doctrine arguments that you used to present. Sad.

          What you don’t get yet is that this abstract idea can be used on any type of patent.

          1. The NIMBYs still have their heads in the sand.

            Unsurprisingly, the anti-software patent arguments are often easily transformed into general anti-patent arguments.

          2. Night, if you read Russell, the point is that a claim nominally to an article of manufacture as in that case is not eligible if what is new in the claim is not eligible — and it is not eligible if that new subject matter is not a machine, manufacture or composition.

            Thus a particular arrangement of letters on printed cards is not eligible even though printed cards might otherwise be eligible.

            It is the principle of the case that is important. That principle was applied in Funk Bros., in Flook, in Prometheus, and now in Alice.

            1. Ned.

              Stop. Your purposeful misrepresentation of the law is not attached to the immediate case. The exceptions to the judicial doctrine of printed matter was not brought up, argued, discussed, at issue, or adjudicated in the immediate case. You are purposefully misrepresenting material law.

    3. Mr. Its, please see post 16 for more. But I submit for your consideration that nothing untoward is afoot.

      If the novel subject matter is ineligible, something else inventive must be added. Of course, if the ineligible is applied to improve the otherwise eligible, there is no problem.

      I am no sure you really understand the case.

    4. Alice’s invention takes advantage of newer, faster computers, but also relies on a lot of technology and infrastructure that doesn’t exist but for the invention.

      Where is that “technology” and “infrastructure” in the claim?

      Last time I checked, the claim is supposed to describe the invention. It’s not sufficient to merely describe some “new functionality.” If that were the case, then Congress would have told us that “functions” were eligible for patenting.

      That didn’t happen. And it never will.

      1. Are the quotation marks to differentiate what Congress HAS explicitly provided with the equal status category of process?

        1. Obviously, anon, your mindset is still “Richonian” — the nominal categories trump other analysis.

          That ship sailed long ago, and now has finally sunk after being repeatedly torpedoed by Benson, by Flook, by Bilski, by Prometheus, and now once again by Alice. Why don’t you get off your submarine and rejoin the cognoscenti?

          1. And keep in mind that I have never been a strict category only – 101-ist. I have always put forth that 101 is not only a category test.

            Try not to misrepresent my views – thanks.

      2. You are doing that misrepresenting a material understanding of the law and requiring only structure in a claim thing again Malcolm.

        Do you need to read the ABA model rules section 8.4(c) again?

    5. You can’t patent a “shadow record.”

      And you can’t hinge the eligibility of your claim on the recitation of a “shadow record.”

      Novel structure is the lynchpin.

      Take it to the bank.

    6. What are you doing bringing technical and legal information into a discussion of whether the court “feels” like something seems patentable or not.

  24. This decision isn’t bad. It delineates what ,imho, we all alreadyknew: you can’t remedy an abstract idea by putting it through a computer; iow, if the idea by itself would fail 101, then implementing it through a computer will very likely also fail 101.

    And I disagree with the comments saying that scotus is “putting 103 into 101″, e.g. conflating the two, etc etc etc. They (scotus) are not doing that themselves, rather the attorneys writing the claims created the conflation when the drafted the application. The only way to untangle the mess it to address it head on.

    1. Yes why bother with the 1952 patent act and the claims. Just give it to a judge and they can contemplate whether or not they think it is worthy of a patent based on the scientific training and patent law training.

      We are a third world country.

      1. Night, if a claim was eligible simply by reciting old and familiar items with the ineligible, then the patent system would be a farce.

  25. How did the stock market react to this clubbing of The Most Important Patents Ever (computer implemented jnk)?

    LOL.

    1. Excessive tripe like this is why so many patent professionals don’t bother with the “discussions” in Patently-O anymore. Poor signal-to-noise ratio. I guess people who don’t have a filter in person have even less of a filter on a forum like this.

      1. What’s excessive about it? The softie wofties tell us all the time that they are the most important technology therefore they get to decide how to claim their jnk.

        Go to some other blog if you want to cry with others about this decision without criticism. There’s plenty of them, as you know.

  26. The holding appears to be the same as the holding that invalidated some of Morse’s claims: overbroad claims are disfavored, and section 101 is the convenient tool to prevent them.

      1. At least in this case, Thomas expressly ascribed the motivation for judicial exceptions directly to the Constitution’s “promote the progress of the useful arts” clause (see page 6). Maybe this connection had been made previously, but of the opinions I’ve read, they were always very vague as to how the judicial exceptions originated, in that it always just comes from some earlier case law.

            1. LOL – except you very much know what I am talking about.

              But care? yes, it is known that you care little for the rule of law and that to you the ends justify the means.

              But to others, the separation of powers doctrine is pretty d@m important.

  27. Basically, they have gone back to flash of genius. They have rolled up 101, 102, 103, and 112 into their judicial exceptions and renamed flash of genius to significantly added. They have put all the power back into a judge deciding whether a patent is valid or not without.

      1. Agreed.

        ‘m still digesting but my initial concern is it’s likely a mistake to treat “Abstract Ideas” the same as “Laws of Nature” & “Natural Phenomena”.

        Laws of Nature/Natural Phenomena are previously existing and include those that are unknown and those already discovered. But they are in a sense already part of the public domain.

        In contrast, the concept of “abstract idea” encompasses new innovations not taught or suggested by the prior art. I think patent applicants, the Patent Office and courts will have difficultly applying the Court’s decision.

        I also think the Court should have chosen obviousness to invalidate the claims if intermediated settlements is “a fundamental economic practice long prevalent in our system of commerce” and the computer-related steps were obvious.

        1. Abstract ideas also covers information processing as described functionally (i.e., “determining” stuff, whether that stuff is a law of nature or a correlation or any other fact or non-fact).

              1. Try and assert a claim against me that recites a computer “determining” something without any novel structure and well see who is the bigger failure.

                Growing up is hard for you. Don’t make it expensive too.

  28. From the Abstract: “Like the risk hedging in Bilski, the concept of intermediated settlement is “ ‘a fundamentaleconomic practice long prevalent in our system of commerce,’ ” ibid., and the use of a third-party intermediary (or “clearing house”) is abuilding block of the modern economy. Thus, intermediated settlement, like hedging, is an “abstract idea” beyond §101’s scope.”

    This is a bit twisted. Something is deemed “abstract” because it is being practiced in the real world? Logicians the world over are losing their lunches.

    I keep trying to figure out, after law school almost 20 years ago, was the Supreme Court always this bad and you don’t see it in law school, or has the Supreme Court really deteriorated as a body of excellent legal reasoning? Other non-patent cases, plus commentary from within the legal community, suggests the latter.

    1. I would certainly have preferred that Breyer write the opinion but so it goes.

      Nevertheless it’s pretty easy to accept that nearly all “economic practices” are abstract, as are all legal relationships and statuses.

      All this was predictable and explained repeatedly to you for years.

      1. I have no problem with the holding, but the reasoning is sad. Abstractness of something should really only depend on the language being used to claim it. Whether something is in use in the real world has nothing to do whether the thing as claimed is “abstract”. And a rule that hinges on whether something is a basic building block for work/innovation in a field … that rule invites added litigation due to uncertainty.

        1. I didn’t like the arguments in the myriad decision either although I did not have an issue with the result.

          How would you have explained this result differently? What types of computer implemented information processing claims should be eligible, in your view, and why? Be specific about the sorts of limitations that need to be present in the claims.

          1. although I did not have an issue with the result.

            Of course not – to you, the ends always justify the means.

            That’s pretty pathet1c for an off1cer of the court.

        2. “Abstractness of something should really only depend on the language being used to claim it”

          You’re a big belieber in the art of the draftsman aren’t you?

            1. Not any more. Bilski, and now Alice, condone courts looking at an entire claim, circling a huge chunk of it and saying, “This is all ‘basically’ this abstract idea,” and drawing a big X through it. No need to consider the details.

              1. Yeah, just read Alice. It includes 102, 103, and 112 all rolled into 101, and it starts with a presumption that the patent is invalid. It is the flash of genius redux. It took the clowns 70 years to get back to it.

              2. We heard the same b.s. “sky is falling” nonsense after Prometheus, David. And we also know that you had great difficult understanding what that case was about and why it was decided against your interests.

                Just invent something patent-worthy and recite the novel structure in the claim and/or the novel steps that lead to physical transformation and you’re going to be just fine.

                Is that really so hard?

              3. David Stein: No need to consider the details.

                LOL. Like the “details” that are somewhere in the specification but not in the claim? Some “detailed” flowchart, perhaps?

                When computer-implementer “innovators” start providing the “details” in their claims then we’ll all be happy to have them considered. I’m talking about “details” like code that actually works to achieve the desired function without bugs on a least one relevant operating system. You know, basic sort of details like the structures we folks in the grown-up arts have been providing to the PTO for years.

    2. I keep trying to figure out, after law school almost 20 years ago, was the Supreme Court always this bad and you don’t see it in law school, or has the Supreme Court really deteriorated as a body of excellent legal reasoning?

      I believe the problem is that the Supreme Court is, in the words of the great Lebowski, “out of its element.”

      Consider the domain of cases that we studied in law school as the Court’s bread and butter – cases like Brown v. Board of Education. The Court’s primary skill is interpreting federal and state statutes according to the substantive principles expressed in the Constitution and Bill of Rights, with secondary support from political and sociological trends.

      But when dealing with patent issues, the Court basically has to wing it. All of the Court’s jurisprudence on these issues – all of it, from Gottschalk to today – starts and ends with a single word in 35 USC 101: “useful” (and its presumed antonym, “abstract”). The Court has absolutely no constitutional principle, legislative history, more detailed statute, etc. to guide its interpretation of that single word. Everything that follows is the product of its own imagination about what should be patentable.

      And in deciding this critical question, the Court’s primary sources of information are (1) the justices’ understanding of business reality, and (2) the justices’ understanding of technology. That reality should cause anyone to break out into hives.

      If the Court respected the fundamental principles of jurisprudemce, it would invalidate 35 USC 101 for insoluble vaguenessa and force Congress to state something, anything, more specific than “useful.” Unfortunately, it’s sitting atop a stack of 40 years of legal decisions trying to interpret that solitary term using a tattered quilt whole cloth. And even though the quilt is disintegrating before our eyes into a patentability “smell test,” the Court opts to kick the can down the road once again, instead of doing what it should have done 40 years ago.

      1. Great post David. The imagining based on their ignorance is I think what we are dealing with. But, again, this is really the flash of genius opinion recast and hidden under 101 (with a denial that it is the flash of genius opinion redux.)

      2. David, are you kidding me?

        What do you think In re Russell, 48 F.2d 668 (C.C.P.A. 1931) is about. The court there squarely links the printed matter to not being a machine, manufacture or composition. In every modern 101, the SC has been doing the same except for Myriad, where it held the sequence claimed not to be a “new” composition.

        The problem is that 103 does not formally exclude ineligible subject matter. Thus where the novelty is neither a machine, manufacture nor a composition the subject matter is not eligible lest the ineligible modify and improve the eligible.

        Software that improves the computer or some larger apparatus or process that is otherwise eligible as in Diehr should still be eligible. Software that simply recites the generic computing equipment and no improvement in it, or no improvement in a larger apparatus is likely ineligible.

        The sky is not falling except on business methods, and the sky should fall on that subject matter.

        1. What do you think In re Russell, 48 F.2d 668 (C.C.P.A. 1931) is about.

          It certainly is NOT about what you hold it out to mean Ned.

          Shameful.

        2. The sky is not falling except on business methods, and the sky should fall on that subject matter.

          4 is not 5.

          Likewise

          3 is not 5.

    3. “I keep trying to figure out, after law school almost 20 years ago, was the Supreme Court always this bad and you don’t see it in law school, or has the Supreme Court really deteriorated as a body of excellent legal reasoning?”

      I’m guessing you did not take a course on the law of federal courts? Just the standing and mootness doctrines were a morass of whipsawing back and forth depending on the predilections of whichever majority happened to have the whip hand at the moment, combined with a definite flavor of finding standing (or lack thereof) based on the perceived level of plaintiff sympatheticness.

    4. “I keep trying to figure out, after law school almost 20 years ago, was the Supreme Court always this bad and you don’t see it in law school, or has the Supreme Court really deteriorated as a body of excellent legal reasoning?”

      I’m guessing you may not have taken a course on the law of federal courts? Anyways, just the standing and mootness doctrines were a big mess of back and forth depending on the leanings of whichever majority happened to have the hammer at the moment, combined with a definite flavor of finding standing (or lack thereof) based on the perceived level of plaintiff sympatheticness.

      (Prior attempt stuck in moderation. Hopefully this “mod”-ified version has stripped out whatever imaginary trigger words were present in the original)

  29. So what are the practice tips for us practitioners who have software type cases on file or being prepared? (Seriously)

            1. lol – nothing wrong with a claim that is 5,234 pages long with the language of:

              comprising:

              a physical structure corresponding to an open gate at position XX1245673, and
              a physical structure corresponding to an open gate at position XX1245674, and

              You thought you saw Malcolm whining before….

              1. There is nothing wrong with that

                LOL

                LOL LOL LOL LOL

                no wait,

                LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL

                You think scriviner/attorney’s are “evi1″ now for trying to slide things through in claims and “made-up words” try being an examiner and coming up with prior art for a 5,234 page long claim recited – for your dear structural purposes – in a mind-numbing manner.

                You would need a GREAT COMPUTER BRAIN to even begin to understand the metes and bounds of the claim.

                Since (direct) patent infringement is still a strict liability type of offense, you then place the public (yes, including end-users, since no law has yet been passed exempting them from the infringement offense of “use”) directly in the path of such non-readable-but-all-structural claim.

                The Malcolm whining would be endless.

              2. “You think scriviner/attorney’s are “evi1″ now for trying to slide things through in claims and “made-up words” try being an examiner and coming up with prior art for a 5,234 page long claim recited – for your dear structural purposes – in a mind-numbing manner.”

                We’ll just use a compooter database to take care of archiving and searching all that. Np.

                And, when, after a decade or so goes by and pretty much all of the useful combos of 1’s and 0’s are disclosed, we’ll shut this particular branch of “the usefullol arts” off and move on. Or perhaps after a mere year or two the feds will wise up and start applying the PMD how it should have been applied in the first place.

              3. 6 misses badly – twice:

                after a decade or so goes by and pretty much all of the useful combos of 1′s and 0′s are disclosed

                You really have no clue as to this software thing do you? Electrons, protons and neutrons are only three building blocks – any chance those combinations will be exhausted?

                And

                wise up and start applying the PMD how it should have been applied in the first place

                PAY AYTENTION – this is NOT printed matter 6, but Malcolm’s “dear” physical claim structure.

                PMD is nowhere in sight.

                D’Oh !

              4. Look as hat, if you’re going to start on and on trying to control me (‘pay attention’) and telling all about how I’m “missing badly” then I’m not going to discuss this further with you.

                But as of right now I will say that the 1’s and 0’s on my harddrive were printed there by a little writer head. And if you write a claim that would encompass that situation then PMD is in fact implicated since you have included that PMD in your claim.

              5. Maintaining your position as a plain and unmistakable error WILL NOT change that error.

                We are immediately here claiming in physical structure form – PMD is nowhere in sight.

                This is not a “control” issue m0r0n.

              6. try being an examiner and coming up with prior art for a 5,234 page long claim recited

                As you have been taught for years but refuse to admit, other art units that are far more grown-up than yours adapted quickly to rules much less onerous than this.

                Try handling portfolios and cases with tens of thousands of lengthy nucleotide and protein sequences.

                I really feel sorry for the computer-implementer grifters. They had a nice ride. Nobody could have predicted their functional claiming of worthless b.s. would come to a sad end.

                Oh wait: that was predicted years ago by me.

                You really do have a choice. You can ream your clients by telling them sweet l i e s or you can be frank with them and explain to them why their computer-implemented “innovation” is just horseshirt that isn’t worth paper it’s printed on.

                Your choice.

              7. You mean like the “much more onerous” 5 bakizillion combination claims?

                Or the special treatment ones where actual claimed utility is not even evident until years and years after filing and real people testing? (Talk about coddling)

                Lol – grow up indeed

              8. Or the special treatment ones where actual claimed utility is not even evident until years and years after filing and real people testing? (Talk about coddling)

                LOL.

                You really should stay in the shallow end of the pool, Billy.

    1. Perhaps – like the plant and microbe repositories, create a repository for any such “new structure in physical terms.”

      Should be quite easy, just saunter over to the Library of Congress ;-)

    2. Be wary of overbroad claims. Keep the point of novelty broad, but be willing to claim context of the invention with apparent specificity. Nothing new, really.

  30. You know you’re in trouble when they start out citing Benson. I have read Benson many times and find it by far the most confusing case I’ve ever read. Why is a machine that performs BCD conversion “abstract”? Granted, the algorithm that performs BCD conversion might be “abstract”, but a machine that performs the same is not. And how can one foreclose all use of the algorithm if you limit the algorithm to a machine?

    Granted, we’re talking about 40 years of technology improvements since then, but trying to understand Benson in light of today’s technology is tough. Anything performed using a processor is an algorithm. Encryption, rendering of 2D or 3D objects on a display, modulation, you name it — they all boil down to algorithms.

    1. Benson did not hold a machine abstract. That case solely concerned itself (and tightly, despite an enormous amount of hoohaw dicta) with a very tight holding.

      The Court simply does not care anymore that it is naked.

  31. Although this is not what many here think the law says, or should say, its clear scotus has implemented some 103 into 101, wherein idea/law/etc + old implement equals a 101 rejection. In my opinion they are probably reading the tea leaves of what congress actually wants, and I doubt those here asking for them to intervene would be happy with what happens if they did.

      1. No, a claim is not abstract if, ignoring the non-patentable-subject-matter, it satisfies 102/103. This sucks if you are in the business of studying the hard sciences, or some of the other places where a computer is much more efficient at doing something than a human with pen and paper, but that is the reasoned interpretation of this line of cases.

        And anon I don’t think it is so much history, as the court wanting inventions to be detectable in the figures. It’s really nothing like flash of genius, because some of the things killed by 101 are much more innovative than the patent that puts a bicycle tire on a stent and challenges you/the examiner to find a reason that that is obvious.

        1. No, a claim is not abstract if, ignoring the non-patentable-subject-matter, it satisfies 102/103. This sucks if you are in the business of studying the hard sciences, or some of the other places where a computer is much more efficient at doing something than a human with pen and paper,

          You seem to be confusing patnet eligibility with the “right” of a computer to be programmed to do something new. That’s a pretty fundamental misunderstanding of both the purpose of the patent system and what’s required of a patent claim.

          As someone who worked in the “hard sciences” I can tell you that we programmed the computers ourselves and we didn’t give a rats axx about patents. Why would we? We used computers because, as you admit, everyone knows they are more efficient than pens and papers for some information-processing tasks. For other tasks, pens and papers are more efficient. For these latter tasks, we also didn’t waste time thinking about patents. Why would we?

          Grifters are going to grift. Let them find somewhere else to grift while we return the patent system to something resembling sanity rather than a casino for bttm-feeding lawyers.

          1. programmed to do something new

            LOL – that sounds exactly what we wanted the patent system to cover – utility and novelty.

            But then there you go again with the “grifters” CRP. You have some serious self-loathing issues to deal with as ALL patents are property and as such are EQUALLY prone to such “grifting.” You seem to want to live in a different world where making money is not in the equation.

            How very odd.

        2. No, a claim is not abstract if, ignoring the non-patentable-subject-matter, it satisfies 102/103.

          That’s some messed up conflation.

          As to your comments to me, can you try again as you are either talking about other’s comments or I missed a chuck of the dialogue somewhere.

  32. Nothing at all surprising here.

    My take:

    What the Supreme Court is really saying that is if the novel subject matter in the claim is directed to the otherwise ineligible, such as a law of nature, product of nature or abstract idea, it is not eligible unless it transforms the eligible as in Diehr. Without such transformation, there must be something else inventive in the claim other than the excluded subject matter in order to qualify under §101.

    1. And, might I add, that if something is not a machine, manufacture or composition, it is not eligible. See, In re Russell, 48 F.2d 668 (C.C.P.A. 1931).

      1. Ned,

        I have reprinted the link at 29.2.1.1.1.2 for your review.

        Please stop with your misrepresentation of the In re Russell case.

    2. So when the novel subject matter in the claim is directed to the abstract idea of changing the shape of a sheet in order to harness the relative motion of air to move a vehicle in a desired direction, its not patent eligible.

      Sorry Bill, Orville.

      Next!

      1. So when the novel subject matter in the claim is directed to the abstract idea of changing the shape of a sheet in order to harness the relative motion of air to move a vehicle in a desired direction, its not patent eligible.

        If you claim that which you wrote was novel how could it not be abstract as it is completely disembodied from the airplane wing invention. Some much so as enough to cover kites and sails. Or were what you wrote the the claim, how could that be novel or non obvious? (old as the Vikings, known to founder Ben Franklin and already studied and observed in flying squirrels and bats) So what would your wording teach?

        I suggest one just try and describe/claim with clear particularity the actual invention, be it airfoil or wing may be debated but not some “mere thing” hidden in theory or the principle it embodies. A real invention is not an abstract invention, an “anything” is.

        1. Peeps –

          What I wrote is how the distillation process the Supremes applied to the claims of Alice would be applied to Wilbur and Orville’s warped wing claim.

          That was the point of my sarcasm. Under the reasoning in Alice, Wilbur and Orville’s celebrated invention would not be worthy of a patent.

          That is how absurd the ruling is.

          Thanks for noticing.

          1. Les – notice that he not only “noticed” but that he jumped full bore into the conflation-is-ok mode.

            Even those that do not know the law take this decision to its “logical”-albeit irrational ends.

            1. Yes our conflation is eligible-101 with 102 /3 validity (and a little 112 WD in the mix). We actually did notice and the thoughts are not that it is ok but that it may be inevitable. We do mean “may” as a hypothetical-not as a conclusive argument, so take a breath. It remains to be seen if this proves out inductively.

              We wrote in response to the as written post (and without reference to the Wright’s actual patent) and maybe inferring inadequately the intended sarcasm.

              Our thoughts are in considering “abstract” to imply disembodied. Integral context is lessened if not removed with abstraction, hence we lose precision or particularity but not necessarily meaning. We do not want to deny that an appropriate level of abstraction even increases meaning in a practical sense-hence themetaladder. The “abstract” in eligibility thus involves sufficiency– a fuzzier concept than necessity.

              In Les’ example in our view the context of the application of the theory was sufficiently abstract to reasonably fail categorically; validity and arguably other eligibility (laws of nature) when merely “directed”. However if “applied to” embodied the actual invention (say wing warping a flying machine…) this problem disappears, and progress advances.

              1. “However if “applied to” embodied the actual invention (say wing warping a flying machine…) this problem disappears, and progress advances.”

                So you agree that the Supremes ( and even the Fed. Cir) are wrong in that when a claim says “apply it” or a computer configured to “apply it”: the claim no longer recites an abstract idea?

              2. We said “However if “applied to” embodied the actual invention (say wing warping a flying machine…) this problem disappears, and progress advances.”

                Les said: So you agree that the Supremes ( and even the Fed. Cir) are wrong in that when a claim says “apply it” or a computer configured to “apply it”: the claim no longer recites an abstract idea?

                No. If it distills to “merely apply it” we agree with the Court, as nothing substantial is applied or added so its too abstracted to be useful. We can accept, for discussion, this is categorically sufficient to be Abstract. This is not a matter of wording, it is a matter of usefulness. The more applied and embodied the claimed is the less likely abstraction is an issue. This because it matters in context what rung one stands on.

                As to conflation, we posit that the appropriate rung of the ladder cannot be determined in a vacuum. Part of that determination perhaps cannot be divorced from Claim precision, inference and meaning, and states of the art in general and particular for the invention. Fuzzier edge cases could conceivably require more consideration of the validity issues to give meaning to the rung height. That may not always be the case though, such as when “merely” is clearly an accurate judgement.

                This admittedly challenges the premise that there can be no intertwining of eligibility and validity. But this does not mean there is no distinction of the two, or that they are a necessarily or always intertwined.

              3. This because it matters in context what rung one stands on.

                Which rung is too high?

                Realize that post hoc determinations fail the “void for vagueness” guideline.

              4. asks anon: Which rung is too high?
                That is a question that is not to the the mere point we made that a place on the ladder of abstraction cannot be determined adequately without context. We will also even suggest that different rungs could imply different contextuals, that may or may not embody all parts of the rung below…but in good faith, and with awareness we are sliding into the realm of obviousness-(remember: our premise is that they may be logically intertwined)

                The PHOSITA is key in rungian determination. But the double edged sword is still one sword. While PHOSITA understanding is technical, it is also discerning. This artisan is defined to understand information relevant to the art and thus it also understands that same information when not relevant to the application or is nonsensical. Even as the artisan in the end may understand without the elucidation of every little thing and stand high, that same understanding in discerning the validity issues could raise that bar high too.

                diverts anon: Realize that post hoc determinations fail the “void for vagueness” guideline.
                okie dokie. Less than ordinary skill proxies cannot be reformed by fiat either!

              5. Aside from the serious attempt at writing as opaquely as possible, you have managed to not answer my question at all AND accuse me of diverting.

                Further, you have supplied no funny gifs, and are becoming more and more tedious with each passing persona that you attempt. Here, your lack of historical knowledge and attempt to be the voice of “the people” is a horrible FAIL for you.

              6. We did answer your question. The logic is not lacking though limited by space. We should add that the specification is inherently linked to meaningful claim interpretation and appropriate rung position too.
                You introduced the ladders of abs to this blog, why not demonstrate transparency by clear explanation of your criteria for judging appropriate rung height?
                As for “diverts”, that was an oops, we would have edited that word out immediately (precisely because it was diverting itself) but there is no post hoc Post Comment edit prompter. The rest of your assumptions are not correct. We are indeed of “the People”, and consider it a Constitutional reminder of purpose, we do not presume more than that. Historical knowledge of what?-our post was reasoned and limited in response to a particularly worded post. We never did one for the giffer and are not puppets. We aren’t afraid of failure (in fact are pretty good at it), but come’on meme “Fails” are for smashed n@dz-gifs

              7. “Too clever by half” would be an apt description of your writing style. Your forced “we the people” notion and mere parroting back of concepts indicate that you really do not understand the concepts. At all.

                We aren’t afraid of failure (in fact are pretty good at it)

                An understatement of which, it is clear, that you do lack appreciation of the magnitude of just how good you are at it.

      2. Les, changing the shape of a street is certainly modifying something otherwise eligible — a manufacture.

        Your example illustrates that you do not get it. But whether this is a deliberate misunderstanding, or not, is not certain.

        I urge you to read Guthrie v. Curlett, 10 F.2d 725 (2d Cir. 1926). link to scholar.google.com for support for the mode of analysis.

        Also, Diehr clearly held that ineligible subject matter that improved otherwise eligible subject matter was eligible. In fact, that is the proposition for which the Alice court cited Diehr.

        1. So duplicitous of you Ned to accuse someone else of “not getting it” and yet, continuing to ignore the explicit (and very easy to follow) set theory example as to why your view of your new favorite case is simply wrong.

          Whether or not Guthrie has a mode of analysis, you will remain wrong as long as you clench tight your eyes and purposefully choose to remain ignorant that Set B just is not Set C.

          If you have a problem with this – THEN address the lesson I provided. You have never addressed the lesson I gave to you. Never. Instead, you merely repeat the very same wrong CRP again and again and again and again.

          Repetition will not make Set C disappear.

        2. Thanks for urging me to read Guthrie to see how warped you are in warping the plain words of caselaw:

          FnA Ned – nothing like picking a case from before 1952 and purposefully trying to further obscure the difference that Congress set in place with patent eligibility and patentability.

          The concluding statement from Guthrie:

          Thus as a question of fact we consider this patent as disclosing merely advice as to how to make an index, and the means (if any) disclosed for doing it as not patentably novel.”

    3. What the Supreme Court is really saying that is if the novel subject matter in the claim is directed to the otherwise ineligible, such as a law of nature, product of nature or abstract idea, it is not eligible unless it transforms the eligible as in Diehr.
      Did you read the decision?? Did you read what they wrote about Diehr??

      Try again.

        1. LOL – Ned asking someone else if they understand caselaw…

          Ned, until you are willing to recognize how badly you are butchering caselaw in trying to bend it to your agenda, such questions from you are utterly ridiculous.

    4. What the Supreme Court is really saying that is if the novel subject matter in the claim is directed to the otherwise ineligible, such as a law of nature, product of nature or abstract idea, it is not eligible unless it transforms the eligible as in Diehr.

      But that’s the key question: what types of details in a patent claim “transform” an abstract concept into a patentable invention?

      Alice provides contrasting examples:

      * Diamond v. Diehr: According to Alice, Diehr’s claims were patentable because “the temperature measurements were fed into a computer, which repeatedly recalculated the remaining cure time by using the mathematical equation,” and this aspect “transformed the process into an inventive application of the formula.” Notably, the transformation does NOT depend on the use of the equation in an industrial process, the development of a physical product, etc. – i.e., “physical” is not the requirement here; we’re not back to the CAFC’s Bilski “machine-or-transformation” test.

      * Bilski and Alice: On the other hand, “one of the claims in Bilski reduced hedging to a mathematical formula, but the Court did not assign any special significance to that fact.” And in invalidating Alice’s patent, the Court generally stated that every step of the method provides something “routine” – “electronic record-keeping, “or “obtaining data,” or “adjusting account balances” – and then dismissed them all together as “conventional activities.”

      So how are we to determine which implementation details constitute “something more,” and which constitute merely an expression of the “abstract idea?” What’s to prevent an examiner or court from summarizing any claim as “basically” an abstract idea and summarily construing the entire claim (including the implementation details, no matter how detailed), and then advancing to the rather meaningless step 2: “once we’ve chosen to ignore the entirety of the claim, we find that there’s ‘nothing more’ in it?” Beyond providing absolutely no guidance, Alice doesn’t even recognize that this task exists.

      Applying Alice to Diamond v. Diehr demonstrates the severity of the problem: the very aspect of Diehr’s claims that Alice found to impart patentability – “recalculating the cure time by using a mathematical equation” – can just as easily be dismissed by the rationale of Alice as the “conventional activity” of a computer in “performing math.” The only reason why any court, presented today with Diehr’s claims, would not invalidate Diehr’s patent is that the Court has repeatedly upheld that particular claim. Nothing more concrete can be stated than that.

      1. This point is purposefully ignored (repeatedly) by Ned Heller given that I have jabbed him with it and his PON canard line of thought.

      2. “What’s to prevent an examiner or court from summarizing any claim as “basically” an abstract idea and summarily construing the entire claim (including the implementation details, no matter how detailed),”

        You could. If you’re the lawlyer on the case.

        “Applying Alice to Diamond v. Diehr demonstrates the severity of the problem: the very aspect of Diehr’s claims that Alice found to impart patentability – “recalculating the cure time by using a mathematical equation” – can just as easily be dismissed by the rationale of Alice as the “conventional activity” of a computer in “performing math.””

        You’re forgetting that the only “abstract idea” in Diehr was the arrhenius equation. Blatantly all uses of that equation were not being preempt.

        1. You’re forgetting that the only “abstract idea” in Diehr was the arrhenius equation. Blatantly all uses of that equation were not being preempt.
          All uses of “intermediated settlement” were not being preempted here.

          1. “All uses of “intermediated settlement” were not being preempted here.”

            I agree, here we’re talking about a little sub-abstract idea within the overall branch of abstract ideas “intermediated settlement”. The supremes simply use that broad umbrella term “intermediated settlement” to describe a larger class of abstract ideas under which everything that falls under that category is abstract. Specifically using a “shadow account” etc to perform an intermediated settlement is one thing that falls under that umbrella. And the supremes keep lumping them all together in their way of wording their decision. (did it in bilski too). They do this because to normal people we can simply make a big grouping under which your specific little abstract idea falls and blow the whole grouping away into ineligibility. I don’t support doing that, but I can’t tell them what to do. If I could I’d tell them to be more specific for people so they’d understand the decision better.

            1. I have a 4 year old new nephew that reasons like you. His mind comes up with the craziest of connections … the sun came because it is a Thursday. Maybe if a sing a song, the light bulb will get fixed.

            1. “You’re joking, right?”

              No. Not at all. It is unquestionable that a method of intermediated settlement that does not use a shadow account is not covered by this claim and thus this claim does not preempt such an alternative method being used.

              1. ““All save one” are preempted.”

                To be sure there should be many millions or an infinite amount that “do not use a shadow account” since that is a “negative limitation” so to speak. But yes, we could lump all those millions or infinite embodiments up into “one” by the use of that negative phrase.

            2. You’re joking, right?
              I see you don’t have a clue. Bilski didn’t preempt all kinds of hedging either — not even close. However, SCOTUS either didn’t know it (because they are like you, stooopid) or they knew it but decided to ignore it.

              You are as adept with most technology as the average 2nd grader — some of the times.

              1. Dude they just lumped Bilski’s method of hedging in with all other methods of hedging and blew the whole grouping of them away into smithereens. Why is this so hard for people to understand?

              2. Dude they just lumped Bilski’s method of hedging in with all other methods of hedging and blew the whole grouping of them away into smithereens. Why is this so hard for people to understand?
                Then no preemption — not too hard to understand?

              3. “Did you not yet understand the differences of those (snicker) subabstract things – being different cannot be properly so lumped?”

                Tell the USSC about it brosef.

              4. “Um, I’m talking with you.”

                Yeah and your tone is always accusatory as if it is I that am making the “mistake” you think the USSC has made. I’m just the messenger explaining to your retarded ar se what happened.

                “Let’s try to arrive at the same page conclusion first, ok?”

                I’ve already said many times that I’m opposed to the lumping being a proper procedure (a conclusion) for different reasons than you are. How much more “same page conclusion” do you need?

              5. My…

                tone…?

                LOL – A bit thin skinned, are we? Mayhap, that fee fee is all you, mayhap, that’s your conscience poking through – may I suggest that you stop and think about your own actions a bit – you know, that log in your eye thingie?

                I’ve already said many times that I’m opposed to the lumping being a proper procedure (a conclusion) for different reasons than you are. How much more “same page conclusion” do you need?

                Well, for starters, you can be explicit about this different reason (your “said many times” remains “said many times in mere cursory or vaguely”). That would be a good start to a conversation.

              6. “Well, for starters, you can be explicit about this different reason (your “said many times” remains “said many times in mere cursory or vaguely”). That would be a good start to a conversation.”

                I’m not trying to start a whole new conversation with your socially retar ded ar se. Jes us fuc k son. The conversation wound down. That’s fine. No reason to start it back up on something else. Start a new thread if you want to talk about this and maybe I’ll join in or not.

                But since you’re just now learning about conversations here:

                I already made my reason explicit, once in this thread and I’ve stated it in other threads as well. Because lumping hinders review. For instance review by review bodies going up the appeal chain. Or by idi ots trying to read/review a USSC decision.

                Note that this doesn’t require further conversation. That’s just my reason. You don’t need to bloviate on my reason or why it is so toootally wrong according to you or tell me why your reason is soooo much better. I’m content with both reasons the way they are and do not require or desire your input.

                Unless … of course you might be preoccupied with right/wrong and might feel compelled to tell me why I’m wrong.

              7. 6 errs (again) with: “I’m not trying to start a whole new conversation

                How is that a “whole new conversation?” You are saying that you said something – when you have not. All I am doing is pointing this out to you.

                Is this more of that “embracing error and encouraging others to do the same” schtick you went on about the other day?

                Let me share something with you: it’s not working out too well for you. You might want to rethink your posting style.

              8. (most normal people really do care when they are being self-contradicting)

                But hey, perhaps giving you the benefit of the doubt as to you caring about being normal was in error…

        2. If there’s novel structure recited in the claim the examiner will be laughed out of court (unless its isolated DNA with the same nucleotide sequence as that found embedded in some rainforest frog’s mitochondrion–lol!!!)

          1. If there’s novel structure recited in the claim the examiner will be laughed out of court

            Well clearly your honor, the novel structure is evident in at least the claim elements on pages 1,056 (line 45), 14,322 (line 17) and 405,326 (line 33). The examiner has failed to show novelty for presenting ALL of the claim elements as present in this claim.

            That laughter Malcolm is not laughter with you.

        3. You’re forgetting that the only “abstract idea” in Diehr was the arrhenius equation. Blatantly all uses of that equation were not being preempt.

          Figures 8 through 16 of Alice’s patent recite a hyper-specific algorithm that spans nine pages. Seriously, this is one algorithm – each of Figs. 9 through 16 begins with: “From Step (number) From Sheet (X-1).”

          The Supreme Court looked at that entire flowchart and said: “It’s ‘basically’ the concept of intermediated settlement. We don’t even need to consider the details of the algorithm; we think it’s all ‘just’ that.”

          It’s intellectual dishonesty, plain and simple.

          1. Anon, what don’t you understand about them simply lumping all little tiny sub-methods of intermediating settlements up into the overall category of “intermediated settlement”? They lump all those little specifics up into something that is more easily considered. And that’s perfectly fine brosef. Then, they decide on the overall category, “intermediated settlement” and boom, all the little sub-methods of doing that are annihilated as well (absent extenuating circumstances).

            As to “intellectual dishonesty” I don’t see any intentionally committed fallacy. It’s just lumping dude. Pure and simple.

            1. Just lumping?

              No – your own post at 19.4.2.1.2.1 indicates why “just lumping” is just not allowed:

              No. Not at all. It is unquestionable that a method of intermediated settlement that does not use a shadow account is not covered by this claim and thus this claim does not preempt such an alternative method being used.

              If you just lump and capture an unclaimed alternative method, you have just lumped improperly.

              1. “If you just lump and capture an unclaimed alternative method, you have just lumped improperly.”

                Nah, because the only reason you’re lumping is solely to determine a class of things that are judicially excepted. Hedging is judicially excepted. Intermediated settlements are excepted. Then you’ll move on to see about the claim at issue.

                Once you find yourself with some excepted subject matter implicated by your claim then you better hope there is something there to “save” the claim in “step 2″ so to speak.

                I don’t know why you’re having such a hard time getting a grasp on this. But at least you’re starting to grasp the lumping. Keep in mind that even if you were right that doing so was improper (which I may well agree with you on that front) because of the reason you gave (or any other reason such as that your decision wouldn’t be clear for others to review), it doesn’t really matter. You have the supreme court in the land dictating the way we’ll be going about doing things.

              2. Nah, because the only reason

                LOL – the ends do not justify the means – and hear – the ends do not excuse the means. If your means are shown to be a FAIL, so to you ends.

                Your attempted muddling is rejected.

              3. Well anon you can say that all you like but make no mistake the judicial exceptions are an end unto themselves and the court will utilze whatever means it needs to in order to achieve them being applied.

                I’m sure you do reject”my” muddling since you reject the supremes “muddling”. I’m just the messenger. If you don’t want to respect the supremes then unless you are an attorney you are not obliged to. You could, for example, think that the law is simply what you think it is.

              4. You still don’t gt it do you?

                The ends never justify the means.

                Never.

                It’s kind of inherent in the definition of being wrong.

                Don’t get me wrong, anyone can attempt to do such or think that such is “proper.” They of course would only be f001ing themselves. And as you are a prime example, some actually enjoy playing the f001.

              5. You are doing that running away from our conversation thing again 6.

                Didn’t you just list that as a symptom of something or another?

                Are you projecting again?

              6. What are you not understanding here? I don’t have the power to rectify what they did for you. In order to have this “wrong”, as you see it, put right you only have one recourse. I’m simply telling you what that recourse is. If you don’t like me to tell you what your recourse is then fine, we can just end the conversation. But no, this isn’t me “running away” re re. The end of the conversation has simply arrived. I have nothing further to say. What do you want me to do? Sit around and bloviate about how wrong what they’re doing is? Because tbh I don’t think it is all that srs. It isn’t even worth bloviating about.

                You’re a real social ta rd man. Make a friend even if it is a homeless man. Talk to them for awhile and get a feeling for how to end a conversation. It’s perfectly natural for a conversation to end. Also it’s perfectly natural for them to end in disagreement or with one party telling the other what might solve their problem. Then people move on. Chr ist how did you not learn this in kindergarten?

              7. See 6 – this whole “control” thing is in your own mind. I am NOT asking you to “rectify” anything.

                You keep on wanting the posts of others to signify something that is not there – you are projecting onto others based on what is in your own head.

                Then you turn around and get all aggressive about it when I point this out to you – hmmmm, what was that percentage of that certain condition you posted about concerning such denials? (grab that mirror my friend and take a nice long look into it – you may find it helpful for your condition).

              8. “you are projecting onto others based on what is in your own head.”

                Well you’re using that word projecting wrong since it is a term of art that doesn’t fit where you’re using it. But from your context I’m eventually starting to catch on to what your “psychopath speak” means since you can’t be bothered to use language like a normal person.

                Yes, in your manner of odd speech I’m totally “projecting” onto others based on what is in my own mind regarding what they’re doing/thinking. Doing that is called empathy and it is completely normal. You largely lack any capacity to display empathy as a psychopath. You probably don’t understand it at all. You might even be regarding displaying empathy as being abnormal.

                Turns out you were right the whole time! You just weren’t expressing yourself very well and you weren’t clear on what that kind of “projecting” is called (you might not be still). Well congrats I guess.

                I wonder how many other subjects you’re totally right about but are failing to express yourself on well enough to get other people to agree with you. I’m going to guess it is kind of a lot. Psychopathy really is a debilitating condition in some fashions.

              9. I see that you are trying to control again by trying to say that I am using the term “projecting” wrong.

                The problem you have (certainly not the only one) is that I am using the term correctly and you are projecting.

                Denying your problem… wasn’t that another symptom of something…

                bothered… normal person” – LOL, since we just established that it is your actions that fail the “normal person” metric, you have just proved that it is you that is suffering the symptoms that you are attempting to project onto me.

                You really do like to provide the rope by which you hang, don’t you?

                And further, the problem is not my expression – the problem is on your end on your not wanting to understand. I can understand how you would feel embarrassed (if you chose to feel) that you are again wrong and I am again right, so you want to hide and obfuscate as much as possible. I can understand that your whole life has probably run through that same pattern. I can understand that is probably why you have such control issues. But you might not want to hide these things. You might not want to run away from these things. Again, these are symptoms that you might want to pay attention to.

                I am rooting for you to get better soon.

              10. “The problem you have (certainly not the only one) is that I am using the term correctly and you are projecting.”

                Fine fine, you’re just a re re and are misusing the term.

              11. “You really do like to provide the rope by which you hang, don’t you?

                And further, the problem is not my expression – the problem is on your end on your not wanting to understand. I can understand how you would feel embarrassed (if you chose to feel) that you are again wrong and I am again right, so you want to hide and obfuscate as much as possible. I can understand that your whole life has probably run through that same pattern. I can understand that is probably why you have such control issues. But you might not want to hide these things. You might not want to run away from these things. Again, these are symptoms that you might want to pay attention to.

                I am rooting for you to get better soon.”

                ^why psychologists get paid the big dollars to deal with people like you.

                What’s especially funny about you lately though is that you’ve no doubt read by now about OCPD and the preoccupation with being right vs wrong and then you get on here and constantly say “right” “wrong” “right” “wrong” every other thread. It’s like you’ve been made aware of what is going on but you still gleefully do it. Exactly like they describe in the literature!

                I’d bet 500$ you can’t go a month without telling someone they’re wrong and you’re right. You probably couldn’t make it a week.

              12. LOL – it is not a preoccupation 6. Odd word choice again.

                It is just that there is a right and wrong. I realize that you were probably raised in a liberal “there is no wrong” upbringing and lack the moral character necessary to truly understand ethics, and that you have admitted such in the past with your reply to NWPA that “lawl is subjective in the mind, and anything goes” but that is just not so 6. “Anything” just does not go.

                Standing idle and letting you think so is not doing you any favors. Having fun while pointing out just how ludicrous you are in your being wrong is a bonus, but I am still being nice to you by pointing out when you are wrong.

                I will take your bet only with an additional counterbet. I bet that the regulars here (to whom you think that I am always saying are wrong) cannot go a week without actually being wrong – blatantly wrong. My counterbet is for $1,000. You can donate my net winnings to any bona fide charity that you want.

              13. “It is just that there is a right and wrong.”

                Lulz, I can see anon on the couch now!

                “But but but mr. psychologist it’s just that there is a right and wrong. I swear it isn’t that I’m preoccupied with right and wrong! That isn’t why I bring it up all the time! I swear! Surely not! Wait. Wait. NOOOOOOOooooooo!”

                lol! You’re so funny anon! What’s even more hilarious is that it isn’t hard to find OCPDers telling other people online that what anon just expressed is exactly what they were thinking the WHOLE TIME!

                “Odd word choice again.”

                It seems odd at first, but once you start to recognize what is going on it isn’t that odd anymore. It describes exactly what goes on.

                Yep, let’s not forget your preoccupation with ethics as well! Thanks for reminding us!

                But nah anon, my fam is conservative as all get out brosef. Trust me, they’re all about morality.

                “I will take your bet only with an additional counterbet. I bet that the regulars here (to whom you think that I am always saying are wrong) cannot go a week without actually being wrong – blatantly wrong. ”

                I’m glad to have you on for the initial bet! One month BEGIN! Keep in mind this isn’t limited to online, so you’ll have to self-report anytime you do it irl.

                I decline your counter bet since people will always “be wrong” no matter who they are.

              14. You are in a denial-project-odd “control” cycle 6.

                Perhaps you want to turn back to the actual point of the conversation, you know, the thing that is the focus of the right/wrong discussion?

                Maybe? Unless you just don’t have anything intelligent to say and just want to tr011 some more.

                I’m glad to have you on for the initial bet! One month BEGIN

                You don’t get the basics at all , do you? My counter offer was a rejection of your single bet alone. You do not get to accept it and have a valid deal. Will you accept my counteroffer, keepin gin mind that we are not just talking about anybody, but very much the regulars here? Or is this another part of your “embrace being wrong, encourage others to do the same, and post on lawl in anyway at all, since it is just subjective and all in the mind?

                Do you see why your views wreck the credibility of anything you want to say and be taken with any credibility? You might want to ponder on that for awhile.

              15. “Will you accept my counteroffer, keepin gin mind that we are not just talking about anybody, but very much the regulars here? Or is this another part of your “embrace being wrong, encourage others to do the same, and post on lawl in anyway at all, since it is just subjective and all in the mind?”

                I can’t accept your deal re re, they’re human so obviously they’ll be wrong. There is a great chance that at least one will be wrong at least once within the week you request. Practically, or actually, 100% depending on whom all you consider “regulars”. That’s a bad bet anon, I only take good bets. Usually only the ones I’m almost 100% assured to win, like the first one proposed. My bet is a great one for you, the power to win the bet is wholly in your hands. Unless of course you have a mental problem with right/wrong being a preoccupation of yours. I mean, I guess in that case it could be a bad bet for you.

                But yes since you’ve clarified I see your “only” wasn’t meant informally and actually you meant “solely”.

                How come you’re so unwilling to make a quick $500 or a charitable contrib for simply holding your tongue for a month? Don’t think you can do it? Or do you simply think your right/wrong drivel is so important that the world can’t do without it for a month? Maybe you just don’t like starving kids in africa to have something to eat? What’s the hold up brosef? To busy being preoccupied with me being wrong at this very second? lol.

              16. Here let me sweeten the pot. Since you bring up charity, if you want to make it a donation to charity we’ll make it 2k for one month of no right/wronging in any aspect of your life. I swear on my life a receipt delivered to you confirming donation to my choice of charity. And, since I think about it, your use of euphimisms for right/wrong counts against you of course.

                You have to self report on yourself if you do it offline. Honor system. But since you’re preoccupied with ethics I trust you. You only pay $100 charity (your choice), receipt delivered to me, if you lose. So I’m giving you 20 to 1 odds. If you like, or if you’re poor, I’ll make it 200 to 1 odds and you only pay $10. But just to be sporting I feel like 20 to 1 should suffice.

                Surely you have the self control to not be an ar se to people telling them they’re wrong for one mo. Just one mo out of your whole life. You don’t even have to start tomorrow. Pick a date in the next year to start.

              17. My offer stands. Are you too afraid?

                Tell you what, here’s a similar offer – just you – so that you have total control over the wager. Think you can do it? Seems like you want your own “sure thing” but you really don’t want to control yourself at all.

              18. “My offer stands. Are you too afraid?”

                Knowing that someone will likely be wrong is not something to be afraid of, or that I’m afraid of. OCPDers on the other hand are anxious about things like that.

                “Tell you what, here’s a similar offer – just you – so that you have total control over the wager. Think you can do it? Seems like you want your own “sure thing” but you really don’t want to control yourself at all.”

                K, well there’s one little problem with your just me wager. I’ll straight up admit that I’ll almost certainly be wrong at least once in the next week. Even just here on PO.

                Nevertheless, I will take your wager if you will a. come down from $1000k to $100 straight up for my loss on your deal or b. you take my terms on my deal except instead of $2000k to $100 odds I give you $1000 to $100 odds. You may pick. If either seems alright then we’ll post formal terms and then shake/swear.

                Also, remind me/make me clear, you were proposing $1000:$1000 odds in your deal correct?

                Also, I’m presuming that we must post with ~normal frequency (aka you or I can’t simply abstain from posting).

              19. 6,

                You are doing that projecting thing again, as I am under no anxiety whatsoever.

                Wager terms are as I offered – your counter offer is not accepted (and yes, disappearing would be an act of frustrating the purpose of the bet and void it).

                Let me know which charity you will be paying the proceeds to.

              20. So then you will not take either a or b?

                Also, what exactly is the “purpose” of your wager? The purpose of my wager is to demonstrate that you cannot go a month without acting an arse, but what’s the purpose of yours?

              21. Your bet won’t match your ‘purpose,’ and only exhibits that projected ‘control’ issue you are having.

                The purpose of my bet is to see you put your money where your mouth is – of, course, you won’t – like most everything else you post, you are at core a fraud.

              22. “Your bet won’t match your ‘purpose,’”

                How do you figure that? I think it’ll work quite well.

                Your mental condition will prevent you securing assured food for a lot of little starving children. If anything that is a pretty good demonstration. That demonstration should suffice even for the person who has the mental condition I would think.

                Though I may just make the donation anyway when you inevitably screw up and blurt out how wrong someone is. Like you’ve already done in the last little while. Heck, you’ve probably explicitly told 25 people they’re wrong in the last week. Of course there’s been a grand total of, at most, less than 2 people who disagree with you but who then go out of their way to explicitly tell you that you’re wrong. But surely you’re not preoccupied with right/wrong!

                “The purpose of my bet is to see you put your money where your mouth is – of, course, you won’t – like most everything else you post, you are at core a fraud.”

                How am I a “fraud”? WTF brosef? How on earth do you reach that conclusion? WTF fraud do you think I’ve committed?

                Am I a fraud for thinking that I’ll probably be wrong at least one time in the next week? How’s that being a fraud? You think that as well! And besides that, nearly everyone on the face of the planet will be wrong at least once in the next week! Including, I should add, YOU!

                Also, if “The purpose of my bet is to see you put your money where your mouth is” is your purpose then how would my abstaining from posting frustrate the purpose of your bet? Seems like so long as the money is where my mouth is your purpose is achieved whether or not I abstain from posting. Are you sure that’s the only purpose?

                In any event, alright fine, but I can’t have you subjectively judging my wrongness. Whom can you get to provide your bet with an objective disinterested judging on the matter? My bet is pretty easy to objectively judge by anyone, it’s simply hinged upon you stating the word “wrong” or a euphimism therefore to describe someone or call yourself “right” etc. Yours is not so easily judged.

              23. Your error is evident immediately: “ I think

                Your mental condition will prevent you

                LOL – there you go again projecting in order to attempt control. Do you not care at all that such attempts fail? Or that such attempts at control are eminently transparent?

                If anything that is a pretty good demonstration.
                It’s a pretty good demonstration alright – just not the one you “think” as even your paying money to a good charity won’t impact your refusal to face reality.

                But surely you’re not preoccupied with right/wrong!

                Again with the odd choice of words: “preoccupied” is nothing more than you trying to control the FACT that there really are things being discussed that HAVE right and wrong – that the subject is NOT “totally subjective all in the mind anything goes” You keep on forgetting that critical aspect and jump to this gambit of labeling someone else in a discussion, missing the point that your efforts are simply not applicable.

                The Fraud that you are is this whole passive/aggressive **med** control thing you are actively engaged in – while trying to label me as the controller, it is you that is trying to control. As to why this is Fraud, grab a copy of Black’s Law Dictionary and look it up.

                And besides that, nearly everyone on the face of the planet will be wrong at least once in the next week!

                Nice strawman – but merely being wrong is not any part of the argument here. Again, look up the legal definition and contemplate why that definition fits you.

                is your purpose then how would my abstaining from posting frustrate the purpose of your bet?

                Try again – I cannot parse any meaning from your question.

                Are you sure that’s the only purpose?
                Likewise, your intent is not clear. Are you trying to control by implying other motives?

                but I can’t have you subjectively judging my wrongness.
                LOL – it is more than abundantly clear that you do NOT get the concept of your being OBJECTIVELY wrong at all. You have slipped back into the nonsense and fallacy that just because I say a certain fact that it cannot be a fact, but can only be my opinion of what a fact is. Sorry 6 – there really are objective things that are objectively right or wrong regardless of who is pointing out the item, regardless of who the speaker is. You do not get to play the Leopold-red-cape game and ASSUME that what I point out must be subjective. This goes to the very core of your illness – your insanity of thinking that law is just totally subjective in the mind and anything goes. In reality, there are things objectively right and objectively wrong – you prove my point by refusing to acknowledge this and being, apparently UNABLE to recognize this.

                Think about this for awhile. Once your realize just why you have this condition, then – and only then – can you start to get better. I really do hope for your speedy recovery.

          2. Speaking of intellectually dishonest, unless the 9 page algorithm or some modest portion of it was in the claims (and it was not), what the Court said was “basically” the concept of intermediated settlement was not the algorithm.

            It was the claimed invention that they said was “basically” the concept of intermediated settlement.

            1. Speaking of intellectually dishonest, unless the 9 page algorithm or some modest portion of it was in the claims (and it was not), what the Court said was “basically” the concept of intermediated settlement was not the algorithm.

              Independent claims 1, 16, 33, and 35-39 are all rather basic. However, the dependent claims more specifically recite different portions of this extensive algorithm.

              My point is that it doesn’t matter, because neither SCOTUS nor the CAFC spent much time considering the specific elements in any of these claims:

              Here, the representative method claim does no more than simply instruct the practitioner to implement the abstract idea of intermediated setlemnet on a generic computer. Taking the claim elements separately, the function performed by the computer at each step – creating and maintaining “shadow” accounts, obtaining data, adjsuting account balances, and issuing automated instructions – is “[p]urely ‘conventional.'” Consdiered “as an ordered combination,” these computer components “ad[d] nothing… taht is not already present when the steps are considered separately.” Viewed as a whole, these method claims simply recite the comncept of intermediated settlement as performed by a computer.

              It’s apparent that the Court glanced at some of the steps of a few claims and said: “I don’t know what this means, but it looks like ‘read some data’ to me. And it looks like this part says ‘process data,’ and that part says ‘output data.’ I don’t need to bother to look any further; I’m just going to presume that all of this is an ordinary implementation of the abstract idea.” And they didn’t even bother looking at the dependent claims – don’t even acknowledge that they exist – before summarily invalidating the entire patent.

              My point is that the Court doesn’t care if any portion of the specific algorithm in Figs. 9-16 is or isn’t in the claims. This entire case is that the claims are “basically the concept of intermediated settlement,” irrespective of what’s actually in them.

              Applying this analysis to any other field of technology would yield ludicrous results. Picture the Court looking at a patent for a novel protein and saying: “This is a carbon, that’s a hydrogen, this other thing is a benzene ring. All of this is old, conventional stuff, and if we ignore all of that, there’s nothing left.”

              1. neither SCOTUS nor the CAFC spent much time considering the specific elements in any of these claims:

                It’s functionally claimed jnk directed at ineligible subject matter, David. What’s the point?

                Throw in a step of using a computer to “determine” the time that it takes Jimmy McButterbrains of Dayton, Ohio to tie his shoes on a rainy Wednesday on a steep hill. Would that make this “system” eligible? Nope.

                Nobody needs patents like this except patent lawyers. Kiss ‘em goodbye, David. You were warned.

              2. Applying this analysis to any other field of technology would yield ludicrous results. Picture the Court looking at a patent for a novel protein and saying: “This is a carbon, that’s a hydrogen, this other thing is a benzene ring. All of this is old, conventional stuff, and if we ignore all of that, there’s nothing left.”

                This is the sort of “ludicrous” analysis that is performed only by people like you, David Stein.

                Grow up.

              3. Look, David, you apparently have some sort of dog in this fight (not necessarily this patent, but the general subject matter).

                I don’t.

                These claims were frankly worthless crud. If the patentee had perhaps striven to claim what it allegedly invented, we would have a different result.

                But a claim that simply recites the intended function and result should always be found invalid, one way or the other.

                If the patentee had desired to claim its invented algorithm, it should have done so in reasonably broad fashion.

                But it didn’t.

          3. Figures 8 through 16 of Alice’s patent recite a hyper-specific algorithm that spans nine pages. Seriously, this is one algorithm – each of Figs. 9 through 16 begins with: “From Step (number) From Sheet (X-1).” The Supreme Court looked at that entire flowchart and said: “It’s ‘basically’ the concept of intermediated settlement. We don’t even need to consider the details of the algorithm; we think it’s all ‘just’ that. It’s intellectual dishonesty…

            The claims didn’t include nine figures-worth of “hyper-specific algorithm.” Instead, the claims said simply:

            (b) obtaining from each exchange institution a start-of-day balance for each shadow credit record and shadow debit record; (c) for every transaction resulting in an exchange obligation, the supervisory institution adjusting each respective party’s shadow credit record or shadow debit record, allowing only these transactions that do not result in the value of the shadow debit record being less than the value of the shadow credit record at any time, each said adjustment taking place in chronological order…

            That’s nothing more than starting with your beginning account balance and working through a series of transactions, skipping those that don’t balance. Why would the Supreme Court need to wade through nine figures of “hyper-specific” algorithm to recognize that this is a pretty simple concept?

        4. You’re forgetting that the only “abstract idea” in Diehr was the arrhenius equation. Blatantly all uses of that equation were not being preempt.

          Right, but what made Diehr patentable even though it explicitly relied upon the Arrhenius equation?

          Let’s look at Alice:

          We tread carefully into construing [an] exclusionary principle lest it swallow all of patent law. At some level, “all inventions… embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept.

          The invention in Diehr used a “thermocouple” to record constant temperature measurements inside a rubber mold – something “the industry ha[d] not been able to obtain.” The temperature measurements were then fed into a computer, which repeatedly recalculated the remaining cure time by using the mathematical equation. These additional steps, we recently explained, “transformed the process into an inventive application of the formula.” In other words, the claims in Diehr were patent eligible because they improved an existing technological process, not because they were implemented on a computer.

          These cases demonstrate that the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it'” is not enough for patent eligibility.

          There is no dispute that a computer is a tangible system, or that many computer-implemented claims are formally addressed to patent-eligible subject matter. If that were the end of the 101 inquiry, an applicant could claim any principle of the physical or social systems by reciting a comptuer system configured to implement the relevant concept.

          Again, what makes the Diehr claims eligible? The Court disavows that what made Diehr eligible was that it is used in an industrial process – i.e., claims reading, “A method of controlling an industrial process, comprising: using a computer to control it using the Arrhenius equation.” According to the Court, the difference between that patent-ineligible claim, and the patent-eligible claim in Diehr, is that the claim recited how the computer applies the concept to the process: the additional steps of “repeatedly recalculating the remaining cure time by using the mathematical equation.” What made Diehr’s invention patentable was the recitation of this algorithm to apply this abstract concept to solve this problem.

          1. The more the softie wofties focus on Diehr, the more they will understand a basic fact about the claims in Diehr: the claims were jnk.

            Diehr was a one-shot deal. Listening to the softie wofties hold the “invention” in Diehr up and say “Why can’t I have this for myself?” is like listening to a five year old ask the same question about an exploded star in the sky.

            Get over it.

            1. LOL – translation: Malcolm cannot square his ends with Diehr , so he must denigrate it.

              Funny, all the times that I asked him to square Prometheus with the stated case most on point (hint: that was Diehr) and that the Prometheus Court explicitly stated that it was not changing (hint: that was Diehr), Malcolm dissembled and made like, what? me worry?

              Now him telling others to “get over it” and “grow up”…
              The stench of hypocrisy is overwhelming.

          2. What made Diehr’s invention patentable was the recitation of this algorithm to apply this abstract concept to solve this problem.

            LOL. Because using the Arrhenius equation to predict when a rubber curing process is completed was sooooo innovative!

            All Diehr stands for is the proposition that the mere presence of an algorithm in a claim doesn’t tank the claim as ineligible per se. It doesn’t mean — and it never meant — that from now until eternity using a computer and algorithm to do something automatically makes the device eligible for patenting.

            This isn’t difficult.

            All this was predictable and it was, in fact, predicted.

            The lynchpin to eligibility is novel structure.

            Learn. Accept. Grow up.

            1. MM, why do you think most of the posters here pretend to not understand?

              If anything, Thomas’s opinion is the clearest on this topic ever written. I am beginning to really look forward to a Thomas opinion. His opinion in Myriad was simple and clear. Ditto, Quanta. Remarkably good writer.

              1. why do you think most of the posters here pretend to not understand?

                Because they’ve been taught that X is true and accepting that X is true and never questioning whether X made any sense put a lot of money into their pockets and/or into their friend’s pockets.

                As with Prometheus, we can only imagine the nightmare we’d be dealing with had the Court found this claim eligible for patenting under some bizarre “you can put the device on your desk” theory.

              2. If anything, Thomas’s opinion is the clearest on this topic ever written

                Serious 6-is-a-genius-because-he-agrees-with-me vom1tfest material.

                Pandering to your agenda and equating this bilk with “clearest anything” is a TRAVESTY. See my post above at 34.3

                You screamed and cried that Bilski was just awful – and this is more of the same.

      3. Applying Alice to Diamond v. Diehr demonstrates the severity of the problem: the very aspect of Diehr’s claims that Alice found to impart patentability – “recalculating the cure time by using a mathematical equation” – can just as easily be dismissed by the rationale of Alice as the “conventional activity” of a computer in “performing math.”

        And eventually the Supreme Court will admit that. Because the claim in Diehr was an incredible piece of jnk.

          1. David Stein he Diehr claims been cited by the Supreme Court in every major 101 decision over the last 20 years as the quintessential example of patent-eligible subject matter.

            That’s nice. It’s also a quintessential example of a jnk claim that should never have been granted.

            Here’s the thing, David: take a claim exactly identical to Diehr’s claim and then add a further step of “thinking about [insert new useful non-obvious thought]”.

            That claim is ineligible. This is how the law works. This is how it has to work or else we just have a race to the bottom where clever lawyering yields vastly greater rewards than bona fide product or service development and the system turns into a casino for those same lawyers and grifters.

            There’s some smart people out there doing nothing but shoving paper into the patent system. Let’s help them find something constructive to do.

            1. Y.
              A.
              W.
              N.

              Talk about zombies – that pet theory of yours Malcolm is the ultimate zombie.

              Funny thing is, you are the only one EVER to post that pet theory (you and your hoard of sockpuppets that you dont use winkwink over at Patentdocs).

      4. David, the eligible part of the claim is that part which is related to a machine, manufacture or composition of matter. If the ineligible part, such as a law of nature or something which is not one of these three categories, modifies and improves the machine, etc., it certainly is eligible per Diehr and now Alice. I would take the Solicitor’s arguments to the Supreme Court to heart. If software improves the operation of a computer, it certainly is eligible. If the programmed computer in the context of a larger machine or otherwise eligible process improves that larger machine or otherwise eligible process, it is eligible.

        But, where the ineligible subject matter is the object of the claim, where the eligible parts are old and unmodified, then I would suggest to you that there is a problem.

        The principles expressed in Alice and the other Supreme Court cases are not new, but fundamentally old and well-known. I would urge you to read for example the Second Circuit case of Guthrie v. Curlett, 10 F.2d 725 (2d Cir. 1926), where the Second Circuit focused on the novel aspects of a claim nominally to a manufacture to determine whether the claim was directed to eligible subject matter. In doing so, the Second Circuit simply asked whether the novel subject matter was a machine, a manufacture or composition.

        The Alice case may seem complicated, but it is not.

        1. I provided the simple two item takeaway at the top of the thread today.

          Notwithstanding your constant errors in law (cases being cited that do not hold what you say they hold and leaving out one of the statutory categories), you may want to pay attention to the simplified explanations I provide.

          Just like the simplified set theory explanation of why your version of Russell is simply wrong.

        2. What is NOT complicated is to see that Ned has lost his scruples by distorting pre-1952 caselaw in his quest to place the Court beyond the FACT of what Congress did in 1952.

          FnA Ned – nothing like picking a case from before 1952 and purposefully trying to further obscure the difference that Congress set in place with patent eligibility and patentability.

          The concluding statement from Guthrie:

          Thus as a question of fact we consider this patent as disclosing merely advice as to how to make an index, and the means (if any) disclosed for doing it as not patentably novel.”

    5. transforms the eligible as in Diehr

      You missed Prometheus – which the Court acknowledged HAD a transformation.

      The transformation there though was deemed “not enough.”

      Your attempt to reinvigorate your familiar MoT remains a failure.

          1. Again this stuff is really straightforward and the importance of evaluating eligibility in view of the prior art is never going to go away.

            You can choose to play the ignorant fool but most of us have left your type of ignorance in the pigsty where it belongs.

              1. Translation; “oink oink I’m clooless and refuse to acknowledge a 9-0 Supreme Court decision that a 12 year old can understand.”

                Grow up, clOwn.

      1. Your attempt to reinvigorate your familiar MoT remains a failure.

        There is no “reinvigoration” necessary. The eligiblity of novel machines that are structurally distinguished from prior art machines has never been questioned; likewise with the eligibility of novel processes that result in physically transform matter.

        This is basic stuff and is easy to understand.

        I wonder what your problem is. Oh wait: we all know what you’re problem is. You’re a dishonest hack.

        1. Then tell me the honesty of your actions regarding the controlling law as to the exceptions to the judicial doctrine of printed matter.

          ABA 8.3 – ring a bell?

    6. And, might I add that all posters here who do not get the very clear Thomas opinion, or who disagree with me or Malcolm on this issue, are “refusing” to get it.

      Anything that is not a machine, manufacture or composition, or a method of making or using these is not eligible. The court simply labels such subject matter as abstract. Printed matter from the Russell case is just one example.

      When a claim involves such ineligible subject matter, the question becomes whether it is applied and in Diehr or whether the other limitations directed to eligible subject matter are “enough.” Essentially, that means whether those other elements comprise an otherwise patentable invention. Simply reciting old and conventional elements is not enough. To sanction such would be to turn substance into form. The Court will not tolerate such games.

      Software per se is not eligible. Software as applied to improve a computer, or a programmed computer applied to produce an improved larger machine is eligible in context. But the improvement must be to something otherwise eligible as in Diehr — an improved machine, manufacture or composition.

      Again, the Supreme Court’s jurisprudence here is abundantly clear at this point. The Lourie group got it right. It is hoped that the dissenting factions on the Federal Circuit give up their dissent. And one can only hope the PTO does not listen to the naysayers here or elsewhere who are trying to limit Alice to its facts. That game has been played out since Benson and it is getting old. The current PTO should stop resisting the Supreme Court and should start doing its job properly.

        1. anon, since you seem to be so wrong on business methods and eligible subject matter in general, I don’t think you are in any position to comment on my posts as being wrong. You can state your view, but simply asserting a conclusion without support is not acceptable.

          Tell us why Russell is wrong, if you think it wrong.

          1. Tell us why Russell is wrong, if you think it wrong.‘”

            I have patiently – and repeatedly explained this to you Ned. It is not Russell that is wrong – it is your version of Russell that is wrong.

            This excessive misrepresentation of yours really is beyond the pale.

      1. You are also doing that “process category is only a sub-category of the hard goods categories” thing again.

        3 is not 5.

  33. Lets all now observe how many unanimous supreme court decisions it takes to change a light bulb over a fed circ judge’s head.

    It really is too bad Rader won’t be around for us to observe the effect on his thinking.

  34. “But if that were the end of the §101 inquiry, an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept.”

    PREACH IT!

    1. ““But if that were the end of the §101 inquiry, an applicant could claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept.”

      PREACH IT!”

      Well, an applicant can still claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept.

      But the claims are only granted when the principle is NEW and not obvious or when used in some new and not obvious way on said computer, twits.

      1. But the claims are only granted when the principle is NEW and not obvious or when used in some new and not obvious way on said computer, twits.

        Hmm… I’m not so sure about that, Les. The Court leaned pretty heavily on Mayo v. Prometheus. The principle in that case was new, as far as I know.

        1. I’m pretty sure in Mayo at issue was an existing correlation discovered by the Applicant, who claimed “identify the correlation and apply it, mr. doctor.”

          There, the correlation itself (or “principle”) was the abstract idea. So, I don’t think you’re correct here.

          1. I’m pretty sure in Mayo at issue was an existing correlation discovered by the Applicant, who claimed “identify the correlation and apply it, mr. doctor.”

            Fair enough. I was thinking “newly discovered,” but that’s not what Les said, so I withdraw my argument.

          2. It doesn’t matter whether the “correlation” was existing or just made up. The problem in mayo was that “thinking about it” is not eligible and the only other step was old.

            This is not difficult stuff. All this was predicted years ago. Stop crying and start listening. Grow the eff up already.

        2. The principle in that case was new, as far as I know.

          the eyes clenched tight, misses the magic wand wave of the principle in that case being “abstract.”

        3. “Hmm… I’m not so sure about that, Les. The Court leaned pretty heavily on Mayo v. Prometheus. The principle in that case was new, as far as I know.”

          Hence my use of the plural form.

      2. “Well, an applicant can still claim any principle of the physical or social sciences by reciting a computer system configured to implement the relevant concept.”

        Yeah and have it invalidated.

        “But the claims are only granted when the principle is NEW and not obvious .”

        Gl with that.

        “or when used in some new and not obvious way on said computer, twits”

        Mmmm, maybe.

        1. You apparently don’t understand how limited this case is. Also, you don’t appreciate that only 3 justices would sign on to a broad ban on all business method patents.

          While this case represents a win for the antis, there is only enough here to characterize it as a win (versus a loss). Many (most?) antis were looking for a lot more.

          Bilski was decided 4 years ago and how many patents have issued since then? Record breaking numbers I believe. Clearly, Bilski didn’t impose any meaningful reduction on the number of patents being issued. CLS saddles up to Bilski, says “we are just like them,” and comes down with the same conclusion with the addition that a machine does not cure a claim directed to an abstract idea.

          While this is still a win for the antis, SCOTUS could have bitten off a far bigger chunk of patentable subject matter and chose not to. Additionally, only 3 of them signaled that they would. This case is NOT what the antis wanted.

              1. As mentioned in the oral arguments thread, the stipulations in the case fairly inoculate against any wholesale “software” attacks.

                Any attacks can be easily seen as dicta, as they are not required for deciding the issue that the parties had before the court (the holding).

          1. you don’t appreciate that only 3 justices would sign on to a broad ban on all business method patents.

            from the smaller thread:

            I guess that 4 is now 3.

            Extremely disappointed in Sotomayor. I judged her for having more savvy and ability to break from her initial days on the bench.

          2. “You apparently don’t understand how limited this case is.”

            It isn’t “limited” at all brosefus. It’s the same ol same ol and it applies quite broadly.

            “Also, you don’t appreciate that only 3 justices would sign on to a broad ban on all business method patents.”

            Maybe, maybe not. Maybe the rest just aren’t ready to say that yet (before they see egregious examples of what happens).

            And even if so, I’m not that worried that some non-abstract claims that you could call broadly call “business methods” will survive 101.

            “While this case represents a win for the antis”

            Not really.

            “While this is still a win for the antis, SCOTUS could have bitten off a far bigger chunk of patentable subject matter and chose not to.”

            Maybe.

            “This case is NOT what the antis wanted”

            Well if you consider me to be “king of of the antis” as some might, then I can assure you that it is.

            1. It isn’t “limited” at all brosefus.
              Said by someone with a limited handle on case law and the English language.

              Maybe the rest just aren’t ready to say that yet (before they see egregious examples of what happens).
              I’m sorry, I doubt any patent case is going to pull at the heartstrings of any Supreme Court justice. They are exposed to far more serious injustices than two companies fighting over money and the rights to technology.

              Well if you consider me to be “king of of the antis” as some might, then I can assure you that it is.
              I was thinking more of the court jester. As an examiner, in real life, your opinion carries very, very, very, very little weight. You get attention here because you have embraced your “fool” status by continually making a spectacle of yourself.

  35. Doesn’t every patent “preempt” something? If I invent a new research tool that could be used as a building block for further knowledge, isn’t such a tool patentable? So is it all just a matter of degree? A case by case balancing test?

    1. Yes Ken. That’s a hallmark of the through the looking glass logic the Supreme Court has been applying to patent cases for at least the last decade. Kind of fitting that it is highlighted by Alice.

    2. Doesn’t every patent “preempt” something?

      That would be a great argument, Ken, if the Court said that the test is whether the claims preempt “something.” Of course, it didn’t.

      1. It wasn’t so much an argument as an honest question. If I invent a new research tool that itself could be used to uncover vast new knowledge, will they now do some kind of balancing test to decide whether the preemption I inflict is justified by what I contributed?

        I understand that IP policy involves a balance between maximizing incentives while minimizing obstacles, but are patent examiners now going to have to do that balancing on a case-by-case basis?

        1. If I invent a new research tool that itself could be used to uncover vast new knowledge, will they now do some kind of balancing test to decide whether the preemption I inflict is justified by what I contributed?

          Not if you claim a useful research tool, and not simply the mere computerization of an abstract concept.

      2. “That would be a great argument, Ken, if the Court said that the test is whether the claims preempt “something.” Of course, it didn’t.”

        The said the claims that they regard as abstract pre-emp the building blocks of human ingenuity.

        So, they are saying that “intermediate settlement” … and even the particular technique of establishment and manipulation of shadow accounts is a building block of human ingenuity.

        If “intermediate settlement” … and even the particular technique of establishment and manipulation of shadow accounts is a building block of human ingenuity, then everything is a building block of human ingenuity.

        Therefore, THEY DID say the test is whether the claims preempt “something.”

        1. then everything is a building block of human ingenuity.

          History repeating itself…

          Time (again) for Congress to step in (again).

        2. “Therefore, THEY DID say the test is whether the claims preempt “something.””

          Of course they did preemption is here to stay baby.

          /bow

    3. Doesn’t every patent “preempt” something?

      Exactly.

      You reach too high with your ladder, even if you are not at the highest rung, you will be “too high” and you will have transgressed against the unknown “fundamental” and be deemed “abstract.”

      You reach too low and merely have a machine, even though such is EXPLICITLY in the words of Congress, and you no longer have “enough,” and you are not eligible either.

      Throw in some disparaging words for scriviners to distract from the man behind the curtain, and call it a day.

      Chamberlain Strikes !

      Below, someone already wants to blame Congress for this judicial nonsense. Not so (at all). But it is a call to Congress: we need Congress to play the role of Churchill.

      1. Their dismissive attitude toward claim drafting/scriveners did seem a bit confusing – I always thought it was a cornerstone of US patent law that claim drafting could indeed be the difference between a valid and invalid patent.

        An argument could certainly be made that we should have central or omnibus claiming (rather than peripheral claiming), as a policy matter; but since patentees don’t get the benefit of such a system, I don’t think they should in effect suffer the downsides either.

    4. “Doesn’t every patent “preempt” something?”

      yep but not every patent preempts an abstract idea. The ones that do are invalid.

            1. Hey anon, after reading a comment on another thread about people mistaking certain traits with psychopathy or unfriendliness I happened to do some googling to see if psychopaths understood what psychopathy was.

              In any event, I stumbled upon this gem. It explains why you (and some other people) just so happen to have such a hard time with the word “abstract”, as well as understanding what things are abstract, and applying the word and understanding in the patent context. Turns out not only do psychopaths have a hard time with understanding others with empathy, they also have trouble with abstract concepts in general.

              link to crimetimes.org

              Just food for thought next time you complain about not understanding what “abstract” means.

              1. LOL – you are doing that projecting thing again 6, as with your running away from your promise to deal with the ladders of abstraction shows, it is you that have the problem with the concept of “abstract.”

                You STILL have failed to express the meaning in plain words – and preferably in your own words to show you understand what it means and that are not parroting it (and doing so incorrectly – like the manual you butchered so badly). You want to push it off for someone else to do.

                You just don’t know it and you frantically – and no doubt reflexively project because you feel threatened again with your own inadequacies (hence the re-introduction of the vap1d psychobabble B$ – which btw pal, is so stale as to f00l no one).

              2. “You STILL have failed to express the meaning in plain words”

                I’ve expressed that in very simple terms a dozen times and a dozen different ways now. You just never fav the threads.

                Upon further consideration it seems that perhaps the “legal” definition of abstract in patent law needs to remain flexible, and not be set in stone so as to not allow lawlyers to simply try to argue around it. The judicial exceptions are “ends” unto themselves, not mere means. And the means to reach them likely need to be flexible.

              3. LOL – simply wrong 6.

                Your dancing about is obvious.

                The ends NEVER justify the means.

                Never – that way lies the horrors that mankind is capable of and the REASON why the Rule of Law is to be respected.

        1. That was the most disappointing part of this opinion, really. Thomas even specifically said they weren’t going to tell us where the boundary of abstractness is (see page 10). The rest of their analysis wasn’t much of a surprise.

      1. They said the claims that they regard as abstract pre-empt the building blocks of human ingenuity.

        So, they are saying that “intermediate settlement” … and even the particular technique of establishment and manipulation of shadow accounts is a building block of human ingenuity.

        If “intermediate settlement” … and even the particular technique of establishment and manipulation of shadow accounts is a building block of human ingenuity, then everything is a building block of human ingenuity, then everything is an abstract idea.

        Therefore, every patent preempts an abstract idea.

        1. Les your ability to not understand this doesn’t surprise me bro. But if you’d like to hire me on as a consultant I’m available. 100$ an hour.

  36. Can someone explain to me how it is that “intermediate settlement” is a fundamental truth?

    For that matter, how can anything “intermediate” be fundamental?

    1. I assume this is a joke. If not, note the difference between the words “intermediate” and “intermediated”.

      Oh the humanity.

      With God as my witness, I thought turkeys could fly.

        1. Well, then, please tell me how your corrected question (pasted below) makes sense?

          “For that matter, how can anything “intermediated” be fundamental?”

  37. As easily predicted, in “Alice in Wonderland” the Red Queen has ruled “off with ALL their claims,” notwithstanding prior resistance from some lower Courtiers. Now we will have a Mad Hatters Tea Party of complaints and commentaries, some trying to spot mysterious Cheshire Cat images in the subtext. The Humpty Dumpties that have fallen off the assertion wall are mostly just troll and other holders of broad business method patents with claims dressed up in “just do it on any computer” system claims.

  38. So according to the Supreme Court you can’t get a patent on a computer because it’s an abstract idea! LOL

  39. 1. All software is not patent ineligible.

    2. No guidance provided as to what’s abstract.

    3. Court’s real objection to claims for intermediated settlement is that it is ‘a fundamental economic practice long prevalent in our system of commerce’ (i.e., it’s in the prior art). Not a valid reason for 101.

    Not a useful opinion.

    1. I whole heartedly agree with this statement. There appears to be a distinct confusion as what qualifies as a an abstract idea and what is known in the art. Does this now mean that everything that can be shown to be in the prior art is now abstract? Is it dependent upon how long the knowledge has been know? Maybe knowledge becomes abstract based upon a certain percentage of an industry knowing it?

      As of right now, the only direction I can provide a client is that software patents are no longer enforceable in the U.S.

    2. Yep. THIS. But that doesn’t mean the PTO won’t misread the holding and run 101-wild for the next two years.

      1. (sigh)

        You are not paying attention to the STIPULATIONS below.

        Alappat was NOT before the Supreme Court here and is still controlling law because both sides below agreed with the case.

        This was already covered here on this blog as well. See at least the oral arguments thread.

  40. Dennis, you left out the nonsense where they say the claims are abstract because they claim what is old, broadly.

  41. The lynchpin to eligibility is the recitation of novel structure, not novel functionality. Face the music, folks.

    Looks like the softie wofties are going to be forced to grow up, albeit 40 years too late.

    Nobody could have predicted …

    1. This is categorically false and a misrepresentation of the case.

      It is widely acknowledged that the claims in Alice are directed to an old concept that would fail 102/103.

      What happens if we have a claim directed to a novel, non-obvious concept tied to a generic computer? That remains unsettled.

      What is an “abstract idea”? SCOTUS seems to think it’s a concept that’s always existed (even though recently discovered, like a mathematical formula), or an old, fundamental building block technology/economics/whatever.

      I’d argue that you’re fine as long as you are not trying to claim some old concept. For instance, if I came up with a novel, non-obvious way to hedge risk, I’d be OK under Alice.

      1. In other words, SCOTUS is conflating the 101 test with the 102/103 test. I’d argue that this case never gets here if we are dealing with a method that satisfies 102/103.

          1. You are both wrong. Non-obvious ineligible subject is still ineligible. You could amend the claims in Alice to apply to some specific non-obvious person and you’re still dead in the water.

            Take a deep breath, softie wofties. You just got dunked.

            1. Please provide a cite to a District Court, Federal Circuit, SCOTUS, or even PTAB decision that holds a claim ineligible as directed to an abstract idea even though that claim is novel and non-obvious. You can’t, because no such case exists. It’s clear that SCOTUS is conflating 102/103 with 101.

              Your intellectual dishonesty and, specifically, unwillingness to back up your assertions in favor of hackneyed, thirteen-year-old-girl speak is quite annoying.

              1. In mayo v Prometheus it did not matter if the step of thinking about “the correlation” was old or non-obvious. What matters is the “determining” step is ineligible and the additional step was old.

                Adding “on a computer” to the claims in mayo would not make them eligible.

                Welcome to the world of sane patents.

            2. Not sure what you mean by “apply to some specific non-obvious *person*,” MM… This is about validity, not infringement. Are you confusing this with the Akamai case?

              What mmmkay and I are saying is that the court clearly found these claims to be “abstract ideas” not because they were actually “abstract” in any way, but because they were not novel (“the function performed by the computer at each step of the process is ‘[p]urely conventional’.”)
              Conversely, if they were novel, then there’s a significant likelihood that the court would have found them to not be abstract. See, e.g., Thomas’ interpretation of Diehr as being non-abstract because it made a calculation using a measurement “the industry ha[d] not been able to obtain.”

              1. I mean just what I said. Throw some non-obvious information into the claim limiting the ineligible method/system to some very specific context. It doesn’t help you. You need new structure.

                This is not difficult to understand.

              2. If you mean what you just said, MM, then you’re back to discussing a “non-obvious *person*.” It’s at least at typo, and at best, a misnomer.

                As for here, you’re talking about field-of-use limitations. Those fields are known. Hence, Thomas would find such a claim “abstract”, because, in reality, it’s made up of known elements.

                There’s nothing about a “new structure” anywhere in the opinion, and as noted above, Thomas affirms Diehr, despite thermocouples being known (although perhaps not to Thomas). Where’s the new structure in that claim?

              3. There’s nothing about a “new structure” anywhere in the opinion

                That’s because there is no “new structure” recited in the claim.

                You’re almost up to speed. Keep struggling.

        1. The second is a conflation of 101 and 102/103 but the first is the definition of an abstract idea and the crux of this opinion is that no longer can a mathematical formula simply be tied to a computer and thus be patent eligible. So e=mc squared tied to a computer not patent eligible…some application of e=mc squared in a machine that actually turns matter into energy for example would be patentable. As this keeps software patents alive but gets rid of business methods really…I call this the correct decision and I still say a dictionary can give you a definition of abstract.

        1. Please provide a cite to a District Court, Federal Circuit, SCOTUS, or even PTAB decision that holds a claim ineligible as directed to an abstract idea even though that claim is novel and non-obvious. You can’t, because no such case exists. It’s clear that SCOTUS is conflating 102/103 with 101.

          1. Try to claim a process of thinking a non-obvious thought and spend your life savings trying to get the Supreme Court to here it. Then you’ll have your cite.

            Meanwhile we sane patent attorneys will connect the dots and continue helping worthy innovators get sane patents.

          2. “Please provide a cite to a District Court, Federal Circuit, SCOTUS, or even PTAB decision that holds a claim ineligible as directed to an abstract idea even though that claim is novel and non-obvious.”

            Don’t need to brosef. I understand preemption. You however, do not. The whole point of preemption is to ensure that nothing in the big 3 gets preempt. Regardless of whether or not any of those things is “new” or “newly discovered” or any other nonsense that you’re preparing to dream up as an “argument”.

            1. Don’t need to brosef. I understand preemption. You however, do not

              Bah, who needs proper legal protocol when you can wave a magic wand, like 6?

              nothing in the big 3 gets preempt

              LOL – kindly delineate what is “in the big 3″ (your offer to ‘just google it’ did not give a great result)

      2. you are misreading the opinion. there is no business method, whether with or without the use of a computer, that is patent eligible. That much is crystal clear. What is less clear is describing a device with software steps, smartphones and the like.

        1. Please provide a pin cite including a SCOTUS statement that novel and non-obvious business methods are per-se ineligible.

          1. When the option states that “[t]he claims at issue relate to a computerized scheme for mitigating “settlement risk”— this is the test. Is it a “scheme”? Yes, not eligible, no still eligible. What’s between the quotes, whether new or old, is patent ineligible.

          2. When the option states that “[t]he claims at issue relate to a computerized scheme for mitigating “settlement risk”— this is the test. Is it a “scheme”? Yes, not eligible, no still eligible. What’s between the quotes, whether new or old, is patent ineligible.

            Think of it this way….”Scheme” is the genus, new and old are the species.

              1. Likewise with a “scheme for operating a rubber-molding press for precision molded compounds with the aid of a digital computer.”

                … oh, wait…

              2. Diehr was a one-shot deal, folks. It stands for a very banal proposition and its not going to save functionally claimed computer implemented jnk. That’s because the claim in Diehr was jnk.

          3. The ALICE claims were novel and nonobvious. How do we know this? There was no rejection. So they only conclusion a reasonable person skilled in the patent arts is that business schemes are not patent eligible. qed.

        2. there is no business method, whether with or without the use of a computer, that is patent eligible. That much is crystal clear.

          3 (apparently the new 4) is still not 5

          Crys-tal

            1. Check again – this time the concurrence speaking on point (there is that “on point” thing again – you might want to check into that concept)

    2. The lynchpin to eligibility is the recitation of novel structure, not novel functionality. Face the music, folks.
      Wrong.

      This is how they characterized Diehr:
      The claim employed a “well-known” mathematical equation, but it used that equation in a process designed to solve a technological problem in “conventional industry practice.” Id., at 177, 178. The invention in Diehr used a “thermocouple” to record constant temperature measurements inside the rubber mold—something “the industry ha[d] not been able to obtain.” Id., at 178, and n. 3. The temperature measurements were then fed into a computer, which repeatedly recalculated the remaining cure time by using the mathematical equation. Id., at 178–179
      You have known equation plus conventional (i.e., known) industry practice. A thermocouple is used to record temperature (again, conventional) and those measurements were fed to a computer (again, conventional). Nothing novel about the structure in any of this.

      They concluded there discussion of Diehr as follows:
      In other words, the claims in Diehr were patent eligible because they improved an existing technological process, not be- cause they were implemented on a computer.
      Improving an existing technological process was the lynchpin here — not novel structure.

    3. novel structure, not novel functionality

      lol – bad spin already – cite please for this “novel functionality aspect you want to hang your hat on…

        1. …and true to form, Malcolm has repeated his vap1d – and non-cited – proposition throughout the day, with no regard at all to the material misrepresentation of law that he knowingly makes.

    4. There are actually various ways to avoid preempting an abstract idea. Though yes, generally the novel structure will be the easiest.

    5. Yeah, this is definitely wrong. If this were the law, then isolated DNA would have been patent eligible in Myriad since it has a novel chemical structure relative to genomic DNA. The Court said isolated DNA is not patent eligible, even though it has a different struture than what is found in nature, because it does not have a novel function relative to genomic DNA.

      1. Bill you are wrong. Some isolated DNA is sill eligible and the court expressly identified certain cDNA molecules as examples. And guess what? The function of those molecules is identical to the function of the genomic DNA: i.e., encode protein.

        1. OK, I guess I’m importing more into the construction since I understand a little bit about biology. Let me spell it out a little more clearly for you:

          If this were the law, then isolated genomic DNA would have been patent eligible in Myriad since it has a novel chemical structure relative to genomic DNA. The Court said isolated genomic DNA is not patent eligible, even though it has a different struture than what is found in nature, because it does not have a novel function relative to genomic DNA.

          Note that the term “isolated” is not really relevant to cDNA, since cDNA doesn’t exist in nature, and therefore isn’t “isolated.” Furthermore, cDNA does not have the same function as genomic DNA. It produces mRNA transcripts that do not have introns, whereas the mRNA transcripts from genomic DNA do contain introns, and therefore must undergo further processing to encode the corresponding proteins.

          1. Who can predict that Malcolm will abandon this discussion as it is obvious that Malcolm will not prevail in his ‘point’ with Bill?

          2. Bill I assure you I know as much about biology as you do. Nice try though.

            The introns in mRNA are removed by splicing as you know before translation.

            Moreover, most of the DNA in the world doesn’t contain any introns at all. I can show you some DNA and you can’t tell me if its a “cDNA” or not by looking at its structure. What matters for eligibility of the “cDNA” is its structural relationship to some genomic DNA somewhere on earth, not the “function” of the cDNA.

              1. Doesn’t answer his point Malcolm.

                Bill was addressing my point that the lynchpin to eligibility is the recitation of novel structure. Bill attempted to rebut that point by bringing up the Supreme Court’s Myriad decision which is (1) poorly written, (2) poorly reasoned and (3) very narrow in its application. Moreover, as I pointed out to Bill, even for the special case of DNA the eligibility of the claimed molecule hinges on the identity of the claimed DNA structure when compared to sub-genomic DNA structure (or any old DNA for that matter). As I stated, a new DNA molecule can have the exact same function as an old DNA molecule (i.e., coding for a particular protein) but if the primary structure is different (which any intelligent middle schooler knows is very easily accomplished thanks to the redundancy in the genetic code) then the new molecule is eligible for patenting under Myriad.

                Structure is the lynchpin. It’s always been the lynchpin with only two major exceptions that I’m aware of, both of which are ripe for toppling by any decent lawyer with the budget to take it to the top.

              2. Myriad decision which is
                (1) poorly written,
                (2) poorly reasoned and
                (3) very narrow in its application

                No,
                No, and
                No.

                30,000 plus mewling words of QQ from you changes none of this. You were wrong then and you remain wrong. What was that comment about “growing up”…?

  42. “inventive concept,’ that olde saw about the ‘nose of wax,’ the intellectually weak distinction between -(a) what is well known and (b) what is an ‘abstract idea.’ Citing Morse for 101 – when it was really enablement and means plus function claiming. What a dog’s breakfast. From the tone, it appears evident – that all claims could have been shot down on 102/103. Too bad SCOTUS could not have told us to do 102/103 first and then and only then – reach for 101. Even they admit – they are using a SCOTUS created judicial exception to provision 101.

    1. it appears evident – that all claims could have been shot down on 102/103

      A lot of incredibly jnky claims like this one fail under multiple patent statutes.

        1. Note that the clOwn seems incapable of understanding that claims can fail under multiple statutes.

          In my opinion the claims in mayo were also obvious. That doesn’t mean that the 101 issue disappears.

          This is easy stuff.

          1. Note that you don’t seem to understand that no one is arguing against your strawman that claims can fail for multiple reasons.

            However, the legal reasoning of claim really does differ from failing for one legal reason to failing for a different legal reasoning.

            Step up your game man. Even this decision does not permit you to post with a WHATEVER legal reasoning technique.

            1. the legal reasoning of claim really does differ from failing for one legal reason to failing for a different legal reasoning.

              Pretty sure that’s gobbledygook.

              1. why the sudden retreat?

                Looks like clooless clownboy thinks he’s on a “battlefield” rather than on a blog thread with 500+ comments.

                Get the meds adjusted, cl0wnboy.

                And, sorry, but your gobbledygook comment is incomprehensible. Ask your mommy to help you translate into English.

    2. “Inventive concept”, “inventive gist”, “invention”, “spirit of the invention,” and many more myriad terms were used and abused by the judiciary in a previous era, an era that Congress had allowed the courts the power and authority to define “invention” by the tool of common law evolution.

      The Court took on a decidedly anti-patent stance in the 1930s and 1940s, prompting a comment that “the only valid patent was one that had not yet appeared before us.”

      Congress reacted and smacked the then-overtly anti-patent Court down, EXPRESSLY removing from that court the power and authority to set invention by common law judicial power. Congress created 101 as an open gate to patent eligibility and moved a portion to 103 under patentability. They did this in 1952.

      This is all historical fact.

      I have previously supplied the congressional record, points from Frederico and the notes to 103 as listed at the Cornell law sight verifying these facts.

      The Court has snubbed Congress – and has snubbed the very constitution it is meant to protect by doing so. The Court has tossed aside the explicit words of Congress and returned to its power hungry days of pre-1952.

      People celebrating may be doing so for their own personal reasons and beliefs. Celebrate then your immediate joy.

      But those that have sworn a state oath – those attorneys among us – should realize that our respective oaths are not to the Supreme Court, but to the Constitution. So no matter if the decision today fits with your own personal desires regarding patent law and how you may want it be – or not, today should be a day of great sadness for the respect and duty sworn to the ultimate law of our land.

  43. Cursory overview looks like this doesn’t change patent landscape at all, but keeps the status quo post-Bilski. Is that accurate or am I missing something?

  44. Level of shock to most anyone = 0. When patents seek to teach and claim a particular means of implementation, then we’ll talk. Till then, recitation of functional results desired is going to continue to be held invalid.

    To those who find it confusing “but you could call anything an abstract idea” yep, that’s the point. That’s why you need to limit it to concrete steps.

      1. It defines abstract.

        It defines it as old and broad.

        It also puts the imprimatur of the Supreme Court on the improper practice of considering the claim elements individually and distilling the claims down to a gist.

        1. Because computers are machines and machines are clearly not patent eligible. Can’t you read the explicit words of Congress?

          Um, wait,..

          1. Bad logic. A method of performing a mathematical equation is a “process” under the text of 101, but no one has an issue with this particular process being excluded under the abstract idea exception.

            If i can have a method that is a “process” and is excluded under the abstract idea exception, I can certainly have a computer that is a “machine” and is excluded under the abstract idea exception.

            1. your catching onto the drift – the only valid claim is one that has not yet appeared before us (history repeats – never mind the explicit words of Congress, the Royal Nine will not be denied)

          2. Come up with a better computer a better machine and sure you can get a patent on it but simply USE a machine to do an abstract process no patent. Honestly I would say ksr made these obvious but seeing them fail under 101 makes sense to. The checklist (1) is it something that people have done for a long time (2) are you simply doing this same thing on a computer? If both are yes no patent for you.

      2. What’s this saying that Bilski didn’t?
        Bilski — Hedging (or protecting from risk) is an abstract idea.
        CLS — Intermediated settlement is an abstract idea very similar to the one in Bilski. Adding a machine to it doesn’t matter.

        The important quote is this:
        In any event, we need not labor to delimit the precise contours of the “abstract ideas” category in this case. It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here. Both are squarely within the realm of “abstract ideas” as we have used that term.

        What I take out of this case is the following:
        (1) SCOTUS has deemed that any guidance as to the “precise contours” as to what constitutes an abstract idea is beneath them. If you have a good argument (either as an examiner or a defendant) that a claim is directed to an abstract idea — make it.
        (2) Using the machine or transformation test to save a claim is (mostly) dead. SCOTUS didn’t mention it once.
        (3) The statutory language of 101 is dead. What is ascendant is the judicially-made exceptions.

        Ultimately, while SCOTUS had a chance to draw a line in the sand that everybody could work with. They choose not to. Instead, they’ve now set themselves up to continue to hear these cases because they’ve not given any guidance as to what is an abstract idea and what is not.

        The 1-page concurrence is interesting in that it signals who is ready to eliminate all business methods — Sotomayor, Ginsburg, and Breyer. Also, it implies that while there is unanimity regarding this case, the battle lines being drawn involve business methods — not a wider scope of subject matter. However, while some might think this case only applies to business methods (e.g., hedging or intermediated settlement), since SCOTUS didn’t opine on the contours of what is an abstract idea, then anything is fair game at this point. I suspect that we’ll see more decisions out of the Federal Circuit going after non-business method claims.

        One amusing discussion was SCOTUS’s attempt to distinguish Flook from Diehr. Diehr was OK since it “improved an existing technological process.” However, to those skilled in the art, Flook did precisely that — improve an existing technological process. I would say Benson improved an existing technological process as well.

        1. Good analysis. My main problem is that it’s unclear what’s “abstract”. Many concepts today are abstract at some level. Take modulation or encryption for instance: at some level these are merely math being applied. However, they certainly seem useful, as machines programmed to modulate or encrypt are used by anyone with a cell phone or other wireless device. Furthermore, in modern devices such as smartphones, modulation and encryption are performed by software. The “machines” themselves aren’t “special” in any way other than via their programming in software. So, once you get an “abstract” idea, you’re basically done, as the “abstract” idea is using a normal computer for implementation.

          1. Take modulation or encryption for instance: at some level these are merely math being applied. However, they certainly seem useful, as machines programmed to modulate or encrypt are used by anyone with a cell phone or other wireless device.

            Yes. If you claim them in their useful contexts, then you shouldn’t have any problems with 101.

            There’s a fundamental difference between the examples you give and the situations in Bilski and Alice. Modulation and encryption techniques, which can certainly be (at least partly) implemented in “computers” are useful for improving digital communications between two end points. Hedging and intermediation techniques are not useful in improving the operation of networked computers. The former are useful applications of abstract ideas; the claims in Bilski and Alice are simply computerization of abstract ideas.

            1. Yes. If you claim them in their useful contexts, then you shouldn’t have any problems with 101.

              “Useful context” – exactly as helpful as the undefined “abstract.”

              Thanks for nothing. Literally.

            2. encryption techniques, which can certainly be (at least partly) implemented in “computers” are useful for improving digital communications between two end points. Hedging and intermediation techniques are not useful in improving the operation of networked computers.

              Logic FAIL. encryption IS EXACTLY like