SCOTUSblog symposium on Alice v. CLS Bank

By Jason Rantanen

SCOTUSblog is publishing a series of essays on Alice v. CLS Bank.  Current participants include:

David KapposSupreme Court leaves patent protection for software innovation intact

From the perspective of the parties involved, this week’s Alice Corp. v. CLS Bank decision held that a process that lessens settlement risk for trades of financial instruments is too abstract for patenting. However, to the leagues of interested onlookers holding their collective breath across our country and indeed around the world, the Supreme Court’s unanimous ruling subtly conveyed a much more significant judgment:  software, as a class, is every bit as worthy of patent protection as any other medium in which innovation can be practiced.

Robert MergesGo ask Alice — what can you patent after Alice v. CLS Bank?

Those of us who sweat in the clammy gymnasia of patent law have been waiting – with a mix of excitement, dread, and cynical disregard – for the Alice v. CLS Bank decision.  The idea was, when the Court took the case, that we would finally have an answer to the question whether software can be patented under U.S. law. To say we did not get an answer is to miss the depth of the non-answer we did get. Reading the opinion reminds me of a famous passage in The Hitchhiker’s Guide to the Galaxy.  Acolytes wait at the feet of a giant supercomputer, which 7.5 million years before had been asked “What is the meaning of life?”  Finally, after eons of waiting, the computer spoke.  Its answer was: “42.”  The acolytes went forth, armed with this non-answer.  And life went on.  So it is with us, in the patent field. We have met our “42,” and its name is Alice.  Now life must go on.

Justin NelsonFor patent litigants, Court affirms status quo

The reaction from patent litigants to the Supreme Court’s decision yesterday in Alice Corp. v. CLS Bank was one big shrug.  The decision was exactly as expected.  While the Court made clear that abstract ideas remain unpatentable, it “tread[ed] carefully” in construing patentability.  Indeed, the most notable part of the decision was that it shied away from any grand pronouncements.  Rather, it relied heavily on prior cases such as Bilski v. Kappos, Mayo Collaborative Services v. Prometheus Laboratories, Inc., and Association for Molecular Pathology v. Myriad Genetics. As the Court correctly concluded, “[i]t follows from our prior cases, and Bilski in particular, that the claims at issue here are directed to an abstract idea.”  Yet it went no further than necessary: “[W]e 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.”

Sandra Park - The Supreme Court as promoter of progress

Yesterday’s Supreme Court decision in Alice Corp. v. CLS Bank International revisits a fundamental question about our patent system:  which patents promote the progress of science?

There’s also a detailed analysis and commentary by John Duffy that begins:

Although Alice Corp. v. CLS Bank was identified by this website and many other commentators as a major case on patent law, the Supreme Court’s unanimous resolution of the case does little to change, or even to clarify, pre-existing law.  The case becomes the fourth Supreme Court decision since 2010 to hold patent claims invalid based on judicial exceptions to patentability. While Alice Corp. is only an incremental addition, the continuation of that larger trend is hugely important because, as the Court itself acknowledges, the judge-made doctrine in this area has the potential to swallow all of patent law.

132 thoughts on “SCOTUSblog symposium on Alice v. CLS Bank

  1. It strikes me that the “mental steps doctrine” is all but forgotten in the U.S. In the European Patent Convention, business methods (“as such”) are excluded under the European equivalent of this doctrine. Art. 52(2c) EPC in full refers to “schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers;”, which clarifies the context.

    I recall that the CCPA in 1969 decided in In Re Prater II that the mental steps doctrine only applies to processes that ONLY can be accompoished by a human (by the human mind). So the exception is limited, but it was not completely abandoned.

    I guess business methods typically are a category of inventions involving essential “mental steps”.

    Reply
    1. No, Reinier, Business Methods are non-statutory. In re Patton, 127 F.2d 324 (C.C.P.A. 1942).

      “Appellant contended before the tribunals of the Patent Office and contends here that the appealed claims are patentable because they provide for a novel “interstate and national fire-fighting system to combat mass aircraft, incendiary-explosive bombing attack”; that such a system was “the essential aim” of appellant’s alleged invention; that his system has been utilized by the United States Government, the city of New York, and manufacturers unknown to appellant; and that it has practical application.

      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, supra, nor is an abstract idea or theory, regardless of its importance or the ingenuity with which it was conceived, apart from the means for carrying such idea or theory into effect, patentable subject 328*328 matter. In re Moeser, 27 App.D.C. 307; Hotel Security Checking Co. v. Lorraine Co., 160 F. 467; Berardini v. Tocci, 2 Cir., 200 F. 1021; In re Thomas J. Dixon, 44 F.2d 881, 18 C.C.P.A., Patents, 711. See, also, In re McKee, 64 F.2d 379, 20 C.C.P.A., Patents, 1018; and In re Lockert, 65 F.2d 159, 20 C.C.P.A., Patents, 1125.”

      See also, Guthrie v. Curlett, 10 F.2d 725 (2d Cir. 1926).

      “The nonpatentability of a system — i. e., a connected view of the principles of some department of knowledge or action — has been sufficiently shown in Hotel Security Checking Co. v. Lorraine, 160 F. 467, 87 C. C. A. 451, 24 L. R. A. (N. S.) 665; Berardini v. Tocci (D. C.) 190 F. 329, affirmed 200 F. 1021, 118 C. C. A. 659, and the earlier cases there fully cited.

      “Undoubtedly one may invent (i. e., come upon or discover) a system, and by very crude means, aided by the doctrine of equivalents, practically appropriate the business begotten by the system for the statutory term; of this the early telephone patents are the classic example. But what gives the breath of life to such a patent is not the system or the good advice contained in the disclosure, but the means shown and described. Indices are a good example of this truth; the first “card index” was plainly patentable, not because it was perhaps an excellent index, but because the means of making possibly a very poor index were novel.

      “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 …

      “The only thing constant about this index is the method or art of compiling it; i. e., advice as to how to compile, which is not patentable.

      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.”

      Reply
      1. Reinier, an just in case you a puzzled about how Rich could have overturned Patton in State Street Bank, he could not. He all but ignored it and mischaracterized its holding.

        But such are the ways of certain judges of the Federal Circuit when they have agendas.

        Reply
      2. Ned,

        You are doing that running away thing again:

        First and foremost, please stop with the dead-wrong view that business methods are non-statutory. This is plain and obvious error, given that Congress -writers of the statutory law, PLAINLY allowed for business methods (you cannot square a provided defense for certain business methods with this notion that business methods were not statutory, as you arrive at a unworkable paradox – one does not need a defense for something not allowed in the first place). Please stop your wrong carpet-bombing CRP.

        Reply
        1. anon, is not just me that views business methods as nonstatutory. The courts universally held them to be nonstatutory for a very, very long time until Judge Rich took upon himself to simply overrule those cases in State Street Bank.

          Reply
              1. Ned, when you answer and engage, why should you find it interesting – as you use that word?

                It is clear exactly when you disengage – as the pattern repeats itself. Whenever your arguments falter and your third party interests (yes, in violation of the posting rules here) are threatened, you go quiet.

                Now, you can dissemble all you want and pretend otherwise, but the pattern is clear: you engage until you cannot answer.

                You are not that good at blowing smoke my friend.

    2. You (not surprisingly) misquoted Reinier and forget the “per se”

      Reply
  2. We need a poll.

    The question should be along the lines of the following:

    Is it ethical in view of Alice to continue advise clients that computer-implement “business method” patents are eligible subject matter?

    Perhaps we should make it clear that it makes no difference whether the claim is to a system, method or CRM. If some thinks this makes a difference, we should see how many.

    Reply
    1. Because polls have the force o law.

      Oh wait, they do not.

      And Ned wants to stake legal stake in the results…?

      Too funny.

      Reply
      1. Anon, would you consider it ethical today to tell a client that adding “computer implemented” to a business method would result in an valid patent, assuming novelty, etc.?

        Reply
        1. I would not advise anything so banal and so strawman like.

          Now if the invention is not your strawman “and add a computer,” then let’s look at the guts and make a fully informed decision.

          Reply
  3. It’d be nice if one of these commenters recognized that

    (1) information processing methods present unique issues that are never going to go away (and Prometheus v. Mayo was certainly an information processing case); and

    (2) programmable computing machines are ancient in patent terms and it has been perfectly understood for a long, long time that they are capable of receiving and “processing” any information that they are “configured to” receive and process, i.e., in the abstract level at which nearly all computer-implemented inventions are claimed (as opposed to new, specifically and structurally defined computing apparati, circuitry, etc,), there are no “unexpected” results. There are, of course, an infinite number of different information processing functions that any ten year old is capable of articulating.

    (3) A patent system where it is far, far, far easier and cheaper to obtain broad patent rights to a class of inventions than it is to reduce those inventions to practice and market them will inevitable create a massive class of grifters and speculators which will consume limited examination and judicial resources unless the patent system is specifically reformed to eliminate that class from participation.

    Reply
    1. information processing methods present unique issues
      Any conditional step (i.e., upon A, perform B) can be said to involve information processing. Moreover, this is not unique to software.

      The problem with your policy arguments against software is that the broad brushes you use against software also apply to more “structural” fields. You don’t see it because of your inexperience outside the biotech realm.

      A patent system where it is far, far, far easier and cheaper to obtain broad patent rights to a class of inventions than it is to reduce those inventions to practice and market them will inevitable create a massive class of grifters and speculators which will consume limited examination and judicial resources unless the patent system is specifically reformed to eliminate that class from participation.
      Nothing unique to computers here. Computer patents get the most attention these days because that is where the money is at. It isn’t going to change anytime soon either.

      While SCOTUS, in Benson, could easily dismiss an invention associated with a computer (likely because nobody in the courtroom ever used or even seen one before and considered the whole notion of computer programming as being “abstract”), it is going to get harder and harder for the Court to sweep away a whole class of patents as being nothing more than an abstract idea.

      As for Congress, patent battles are really just about the money. While I doubt you’ll ever admit to it, this isn’t some clear cut issue that they all can rally behind. Consumers are almost never sued for patent infringement so you aren’t going to get a huge public outcry (outside the uber-geek community).

      Reply
      1. “The problem with your policy arguments against software is that the broad brushes you use against software also apply to more “structural” fields. You don’t see it because of your inexperience outside the biotech realm.”

        I somewhat agree that this may be the case. Regardless, even if those issues are present in some of the more “structural” fields or not the issues that underlie the policy arguments don’t magically go away just because they’re present in other areas as well.

        “it is going to get harder and harder for the Court to sweep away a whole class of patents as being nothing more than an abstract idea.”

        Really? How so? Are their pens going to get noticeably heavier or their keys on their keyboards noticeably harder to push? All kidding aside I’m genuinely curious.

        “As for Congress, patent battles are really just about the money. While I doubt you’ll ever admit to it, this isn’t some clear cut issue that they all can rally behind. ”

        I tend to agree, but I’ve also observed history. And in historical terms government programs tend to right themselves over time. The patent entitlement program is not and will not be an exception I doubt.

        Reply
        1. I somewhat agree that this may be the case.

          LOL -only somewhat? That’s a pretty tepid stand to take in regards to one who is clearly of the “only-good-claim-is-a-near-worthless-picture-claim” mentality.

          Why the reticence?

          Reply
        2. Really? How so? Are their pens going to get noticeably heavier or their keys on their keyboards noticeably harder to push? All kidding aside I’m genuinely curious.
          Since you asked nicely, I’ll explain a little further — although I’m a bit pressed for time at the moment.

          Judges at the level of SCOTUS recognize the import of their actions and that history will judge them. As such, they are more cautious than the average judge in addressing the issues presented to them. This isn’t to say that they are perfect, but they aren’t go to do anything willy-nilly. More importantly, I believe all of them respect the Constitution and the role they play.

          When it comes to computer-implemented inventions (e.g., software — as well as hardware), today’s judges have a much greater awareness than judges (and the populace as a whole) 40 years ago. People see computer and software as technology. They also see how computers and software have completely changed modern life. When Benson came out, I doubt 99.9999 of the US populace knew what it meant and less cared.

          SCOTUS eliminating software as a class of patents would be a huge step by SCOTUS. It would mean essentially ignoring the will of Congress and rewriting the law. Congress used very expansive language and to eliminate a huge class of patents would be rewriting the law. Even Congress has stayed away from eliminating classes of patents — with a very minor exception.

          Judicial exceptions are to be narrowly construed. As such, SCOTUS’ action to eliminate software would be viewed as a significant departure as to SCOTUS role in the Constitution. Perhaps they could get away with it in a very minor issue, but eliminating software as a class would be extremely visible. One does not eliminate billions and billions worth of assets with the stroke of a pen and have nobody notice. This isn’t a decision that they could have slip through the cracks.

          SCOTUS knows the “software issue” is one for Congress to decide. This is why the decision was written so very narrowly — they do not want to be seen as supplanting the will of Congress (even if, in their heart of hearts, that is what they want to do).

          The patent entitlement program is not and will not be an exception I doubt.
          Calling it an “entitlement program” is one way to deride it, but those who understand the law realize the quid pro quo associated with the grant of patents.

          Reply
          1. Oh, NO!

            Why do you guys always misstate the issue? Neither the SC nor anyone else has ever said that new inventions involving new software are ineligible. Simply look at Diehr and Alappat.

            The Solicitor, in his argument, argued that software that improved computer technology or in the context of a larger machine or process improved such, was eligible. No one disagrees.

            It is only when the software is doing nothing new that is otherwise eligible where the problem comes in. Playing new music, balancing risk, reducing risk, calculating the improved price, and the like.

            The sky is not falling.

            Reply
            1. Ned asking someone else about misstating the issue…..

              (sigh) more and more like Malcolm every day (and that is not a compliment)

              Reply
            2. I always wonder which Ned Heller is writing. Is he the guy that writes this?
              Neither the SC nor anyone else has ever said that new inventions involving new software are ineligible.

              or is he the guy who writes this:
              Software is non statutory.

              Playing new music, balancing risk, reducing risk, calculating the improved price, and the like.
              I hardly believe that playing new music and risk reduction is one and the same. Many hardware/structural inventions have, at their core, the desire to reduce risk (of one kind or another).

              BTW — I never said SCOTUS has stated that software is nonstatutory. Thus, it is you that is misstating my position.

              The sky is not falling.
              I never said that is was. My very first comment on this case was about how little SCOTUS changed the landscape of patentable subject matter.

              Reply
              1. Oh No, I do believe that the SC has held that software is abstract. See, e.g., Microsoft v. AT&T.

                Now, a programmed computer is another thing altogether. That clearly is a machine. But whether it is eligible depends on whether it is “new” in the sense the computer is improved.

                Also, any application of the computer to do something technological, meaning at least something physical, is potentially eligible.

                But software — completely non statutory as it is neither a machine, manufacture or composition.

              2. …and as far as the Microsoft case, do you remember the source that you yourself supplied (during our Bilski discussions on how to tell the difference between a holding and dicta – and the danger of over reading dicta?

                You need a refresher course.

              3. Oh No, I do believe that the SC has held that software is abstract. See, e.g., Microsoft v. AT&T
                Held? You really need to reread that case.

                A copy of Windows, not Windows in the abstract, qualifies as a “component” under §271(f)

                The court wrote the following:
                One can speak of software in the abstract: the instructions themselves detached from any medium. (An analogy: The notes of Beethoven’s Ninth Symphony.) One can alternatively envision a tangible “copy” of software, the instructions encoded on a medium such as a CD-ROM. (Sheet music for Beethoven’s Ninth.) AT&T argues that software in the abstract, not simply a particular copy of software, qualifies as a “component” under §271(f). Microsoft and the United States argue that only a copy of software, not software in the abstract, can be a component

                What the Supreme Court held was that “software in the abstract” is not a component under 271(f). On the other hand, if the software was embodied, e.g., in a CD-ROM, then it would be a component. When software is being claimed in a patent application, it is virtually always claimed as a method, machine, or product — not “software in the abstract.”

                Why would you misrepresent the holding?

              4. Why would you misrepresent the holding?

                You seriously have to ask that question?

                It is widely known that Ned posts with his third party interests in control (and yes, that violates one of the rules of posting here – that the posts be of a personal nature).

              5. Oh no, didn’t misrepresent anything. Software not limited to a computer or potentially a CRM is abstract. Claimed the programmed computer, and we begin to have a discussion.

              6. (sigh),

                What does it mean that software has a copyright Ned?

                Are you going to recognize your error of “holding” in the Microsoft case?

                Start having a discussion? Please, you still have many clear errors to atone for.

          2. Ohno,

            Regardless of “how nice” 6 asks, each and every one of your answers have previously been supplied to 6.

            Reply
        3. the broad brushes you use against software also apply to more “structural” fields.

          Translation: “Everybody does it so stop picking on me, waaah!!!! Waaah!!!!”

          Grow up. These other “structural” fields have been dealing with far more stringent patenting requirements for many years. Do jnky claims get in and out of the PTO? Of course. Do they end up in the hands of some lowlife attorney from Texas representing some unknown “innovator” seeking to hold an entire industry hostage 15 years after the filing date? Nope. And there’s a good reason for that.

          It’s not as if I’m here deriding jnk software but then I turn around and champion the awesomeness of obnoxious jnk filers like Myriad. The opposite is true. Stop pretending.

          Reply
          1. These other “structural” fields have been dealing with far more stringent patenting requirements for many years.
            Hardly. BTW — it is much harder to get a patent out of the 2100, 2400 tech centers (computer-related) and much, much more harder to get a patent of 3600 tech center (business methods) than to get a patent out of the mechanical arts and it has been so for at least a decade.

            It’s not as if I’m here deriding jnk software but then I turn around and champion the awesomeness of obnoxious jnk filers like Myriad. The opposite is true. Stop pretending.
            You are an equal opportunity h a t e r — I’ll give you that.

            Reply
            1. You are an equal opportunity h a t e r

              More deep stuff from the guys who never saw a jnk patent they couldn’t embrace.

              Reply
              1. More deep stuff from the guys who never saw a jnk patent they couldn’t embrace.
                Oh yes … from the man who hasn’t met a patent that he didn’t consider “jnk” — super-duper great analysis there. There are so many descriptions that can be used for you — pitiful and delusional come to mind today.

              2. the man who hasn’t met a patent that he didn’t consider “jnk”

                I’ve “met” thousands of such patents so you are evidently completely confused about who you are referring to.

            2. it is much harder to get a patent out of the 2100, 2400 tech centers (computer-related) and much, much more harder to get a patent of 3600 tech center (business methods) than to get a patent out of the mechanical arts and it has been so for at least a decade.

              Good. Let me know when it’s impossible to get a “business method” patent out of the PTO then we’ll know that we’re getting somewhere.

              Reply
              1. Because like you know, fee-fees or something (something other law, that is – since even Malcolm should be able to count to 3 (which is the new 4), and even Malcolm should know that 3 is less than 5.

                Should – I tell ya – should.

              2. Good. Let me know when it’s impossible to get a “business method” patent out of the PTO then we’ll know that we’re getting somewhere.
                When 3 becomes 5 — not a minute sooner. Given the makeup of SCOTUS and who is going to retire when, that is going to be a long time from now.

                BTW — 4 out of the 5 youngest justices weren’t part of the “3.”

              3. Oh no,

                And that is why my supreme disappointment is with Sotomayor. Breyer and Ginsburg are beyond salvage, only too willing to explicitly rewrite the words of Congress – as would Stevens had done. While I recognize that Stevens was the designated mentor of Sotomayor when she first joined the bench, I really thought that she would have been able to break free of his anti-patent leanings and think on her own.

                Given that Ginsburg is THE oldest Justice at 81 and Breyer ranks fourth at 76 (numbers two and three are Kennedy and Scalia, each at 78), It does appear highly doubtful that 3 will become 5 anytime soon.

              4. anon, the person who was rewriting the patent laws was Judge Rich. He did it with legislation. He did it with his utterly deceitful opinions.

              5. He did it with legislation.

                Let’s take a step back and think about that for a minute.

                Then tell me which branch of the government (only one, mind you) has been given authority by the constitution to write patent law.

                Your lawlessness and fealty to the Royal Nine needs a major adjustment.

              6. the person who was rewriting the patent laws was Judge Rich. He did it with legislation
                Hmmmm … isn’t that they way we are supposed to rewrite the patent laws?

      1. What would Adam Smith say?

        More deep stuff from the rabid proponents of the lowest form of innovation.

        Reply
    1. Memo to Ned:

      Come back to this reality (you can start with a refresher course in basic set theory, and then a basic civics course, followed up by a review of your oath as an attorney for you to reflect upon what is your highest duty).

      Reply
        1. That’s a pretty funny response coming from one who purports to be soooo upset with attorney misconduct.

          Malcolm, thy name is Hypocrite.

          Reply
      1. We have the nonstatutory software and the statutory machine.

        1. If the machine is new, eligible.
        2. If the machine is old, and the software new, without more, ineligible.
        3. If the machine is old and the software modifies the machine so that the machine produces a new and otherwise eligible result, eligible.

        Nominalists: if the claim recites anything eligible, the claim is eligible. Move on to 103.

        But, if that were true, the printed matter doctrine is untrue.

        Reply
        1. Ned: Nominalists: if the claim recites anything eligible, the claim is eligible. Move on to 103.

          But, if that were true, the printed matter doctrine is untrue.

          Indeed. Unlike 101, 103 has express text that would seem to prevent the “principled” statute interpreter from ignoring a non-obvious claim element, even if that non-obvious claim element were itself ineligible.

          But these guys refuse to even address these issues, publically at least. Their “principles” apparently extend only to situations where patent rights are expanded.

          Go figure.

          Reply
          1. But these guys refuse to even address these issues, publically at least

            LOL – not sure just which “these guys” you are referring to, but um, OK, I guess “some guys” have not addressed the pure bunk you have dissembled with. Perhaps they are waiting for you to actually post in an intellectually honest manner and address the points I have provided, seeing as such are an accurate reflection of the law, and you have yet to provide any cognitive and honest answer (yes, that means that your usual short script items should be dispensed with, but we both already knew that, right pumpkin?)

            Reply
            1. not sure just which “these guys” you are referring to

              You and David and a few other faux “principled” proponents of destroying the patent system so we can save it (or continue to abuse it for your own selfish needs — it’s hard to tell where you’re coming from when you refuse to engage in a discussion of the practical issues your fantasies present).

              address the points I have provided, seeing as such are an accurate reflection of

              *click*

              What a dweeb.

              Reply
        2. Ned continues on his path of evasion and purposeful dissembling with:

          Nominalists: if the claim recites anything eligible, the claim is eligible. Move on to 103.

          But, if that were true, the printed matter doctrine is untrue.

          Ned – please address in an intellectually honest manner the counter points that I have already presented to you, including the set theory example as to why your version of Russell is not correct, and the fact that your “Nominalist” view does NOT capture my stated views on 101.

          Stop running.

          Reply
          1. Listen anon, if the ineligible is applied to the eligible to improve it, the courts have repeatedly held the claim as a whole is eligible. No one is disputing this. No one.

            But the position you seem to be advocating is that if the claim nominally includes anything eligible, it is eligible without ever looking at the issue of “integration.”

            Now if the above is not true of your position, and I think it is true of your positions, then please tell us why we are wrong.

            Reply
            1. anon and David don’t like to talk about that stuff, Ned.

              They’d rather just rant about the 1952 patent act endlessly because, apparently, they enjoy listening to themselves and they enjoy getting consistently smacked down by the legal system.

              But they’re really “principled”! Without them the republic would collapse because …. 1952 patent act!!!!!! Or something.

              Reply
            2. You have not addressed the points I have presented to you and you continue to put forth a known false position.

              You do realize how unethical that is, right?

              Reply
              1. You have not addressed the points I have presented to you and you continue to put forth a known false position. You do realize how unethical that is, right?

                I’m sorry. I’m busy working through the long list of other mental ly unstable people who presented me with their fascinating “points” throughout the years. Gotta keep up with my “ethical duties”, you know!

                LOL. Seriously, man, go buy yourself a pair of thick wool socks, throw one in the trash and shove the other one in your mouth. Just for a change.

            3. Asked and answered – but you keep on ignoring that answer. Why is that? (Yes, that is rhetorical, as both know why)

              Reply
            4. But the position you seem to be advocating is that if the claim nominally includes anything eligible, it is eligible without ever looking at the issue of “integration.”

              There you go yet again misrepresenting my position.

              How many times do I have to tell you that “category only” CRP is not my view?

              Why do you not listen?

              Reply
  4. The softie wofties: 1952 patent act!!! [pound table] 1952 patent act!!!! [pound table] 1952 patent act!!!!!

    And then what?

    Please tell everyone what happens after you reverse all Prometheus and Alice because “1952 patent act”.

    You’d think these “principled” folks would have some thoughtful answers.

    But they don’t. Gee, I wonder why.

    Reply
    1. LOL – please state a real question if you expect a real answer.

      Thanks.

      Reply
      1. please state a real question if you expect a real answer.

        I did state a real question. Let’s say that you and David and similarly shallow-thinking folks get your way. You want to get your way, don’t you? So let’s say that you get your way and Prometheus and Alice are reversed.

        What happens next?

        You’ll recall that, according to Prometheus’ expert, Mayo was liable for infringement because they looked at some data created using an unpatentable (old) method and thought about a correlation that was put into the public domain by the patentee.

        So how about you (LOLOLOL!!!!) or David (who appears to be fast on his way to cl0wn status himself) telling everybody exactly what happens next should your fantasies come true.

        Do we stick with your beloved 1952 patent act? Nobody is going to accept that, you know. So how do you propose to re-write it?

        C’mon guys. Grow up and tell everybody. Surely you are capable of using your li’l noggins to think ahead. Or not…?

        Reply
        1. similarly shallow-thinking

          KA-BLOOEY !

          Do we stick with your beloved 1952 patent act? Nobody is going to accept that, you know. So how do you propose to re-write it?

          The answer of course, is to follow the law as written by Congress. You want something different? Pursue that change through the proper channels – contact your Congressman. Hey, you got that great skill of English as a First Language, so why are you so hung up? (the nobody is going to accept it is more than just a bit presumptuous on your part – indicating that it is you that needs to “grow up”).

          So typical of you Malcolm, whining and then demanding others to act.

          Reply
  5. As predicted in comments several blogs below, we are now having an Alice in Wonderland “Mad Hatter’s Tea Party” with hyperbolic comments on the Alice decision. Especially, calling it a decision about “software patents” when this and other patents causing the problems and getting shot down are almost all patents in which there IS NO ACTUAL SOFTWARE anywhere in the patent! Merely broadly claimed business ideas and claim directions to “do it on any general purpose computer” or reciting a few conventional computer elements like a “memory” and a “processor.”
    So, save the histrionics for cases invalidating a patent which actually DOES disclose and claim novel and unobvious software something useful.

    As noted, this decision sustaining the en banc Fed. Cir. decision below was completely predictable, and narrow. Personal views disagreeing with the logic or holding of a unanimous Supreme Court decision, or making wild speculations about it, are of no value to anyone.

    Reply
    1. Lot’s of things of “no value to anyone” here – including the decision.

      C’est la vie.

      Reply
  6. Why the problems with computer implementation? General purpose computers can essentially follow any instructions given them, in that sense they are universal, and many algorithms to do specific steps are known. So what?

    During the industrial revolution every iron machine worked based on natural laws. Abstract principles were used to design them. Iron can be molded into any shape whatever, and as such is universal: all the pieces of every iron machine thus was simply made of the same stuff and simply worked according to natural law. Moreover iron works designers were restricted by patents in how they could form iron to make their machines. Iron machines were very often made of the known parts, e.g. members, axles, tubes, rivets, supports, etc. in different shapes and sizes and in different combinations. The mere fact that the general kinds of parts were known had no deleterious effect on the ability to patent iron machines.

    The entire business of making machines of iron reminds me of implementing a computer based application using hardware and software. But, for some reason, computer implemented machines are subjected to much more flack than the iron based ones…

    Perhaps it comes down to the nature of the claims. Clearly a claim to an iron machine could not simply be “iron configured to push water, iron configured to hold water in a heating process, and iron configured to transport the heated water”… etc. Insofar as “software patents” attempt to claim in this fashion there may be a problem.

    Query how would a court, of the industrial revolution, address a claim to “iron configured” in the manner proposed above? What exactly transforms the patent ineligibility of the same machine claimed in “iron configured” language to patent eligible matter when the language is changed to “iron elongate member” etc. ?

    Is the clue to claiming computer implemented inventions somewhere here?

    Is the difference due

    Reply
    1. natural laws and the building blocks of electrons, protons and neutrons (and people get all huffy about the analogy – must be that striking that nerve)

      Reply
  7. SCOTUSblog neglected to include Gene Quinn’s appraisal of the situation:

    If investors are paying attention it should devalue publicly traded companies by in excess of $1 trillion.

    Investors are a little slow this time, but I’m expecting big action today!

    Reply
  8. What I would love to see, and maybe I’ll do it, is someone take the pre-1952 case law on what is an “invention” and use those quotes in the context of today to show how the Court is ignoring the statutory changes made in 1952.

    103, 112 are the keys, not 101.

    Related to that: someone apply 101 consistent with (a) the presumption of validity and (b) the existence of 112/103 (i.e., don’t use those concepts in applying 101; otherwise, you’re violating basic statutory interpretation issues).

    Reply
    1. I suggest that you can start with Ned Heller’s quotes.

      But by all means only as a start – he seems thick with the “appropriateness” of ignoring what actually happened in 1952.

      Reply
      1. what actually happened in 1952.

        What actually happened is Congress looked at the state of computing technology in 1952 and realized that the only way to promote the development of new information processing methods was to make it possible to claim “new” machines merely be reciting new information processing functionality and generalized information processing steps that are logically indistinguishable from the sorts of things people have been doing for centuries with their own brains.

        Oh wait — that’s not at all what actually happened.

        What actually happened is some self-intersted incompetents wrote some terrible legislation and some even more deeply compromised judges interpreted it to allow the lowest forms of “innovation” to be both eligible and patentable.

        Reply
        1. LOL – more mischaracterizations from the vap1d one.

          Crack open a history book and learn. If you want to change the very law you denigrate (and thus implicitly accept to be as I have stated), call your Congressmen and follow the proper legislative channels.

          Reply
    2. That would be interesting David. What they have done is essentially just given judges a free pass to invalidate patents with absolutely no reference to the 1952 Patent Act or the factual record. One must wonder what is the authority with which this was done. Because in my view there is no authority for the SCOTUS to have done this. They seem to be saying that a patent on an abstract idea is unconstitutional and judges get to decide all by themselves what an abstract idea is. Pretty bold grab of wide swath of judicial power. (Really this is the type of stuff that third world judges do.)

      Reply
      1. I wonder if they really think that anyone else in the world thinks they are clever besides themselves. One thing I have noticed is with the great disparity of wealth in this country that those in power hold themselves in very high regard whereas the average person holds them in very low regard and sees them as basically criminals with guns. Weird. The more outrageous the situation becomes the higher regard the SCOTUS seems to have for themselves and the less regard the average person has for them.

        Reply
      2. in my view there is no authority for the SCOTUS to have done this.

        Where did the Federal Circuit find its “authority” for all the pro-patent “activism” it injected into 103 over the years?

        None of you patent txxbxgger types ever complained about that stuff.

        Go figure.

        Reply
        1. What pro-patent “activism” are you thinking about?

          (and yes, please realize that the law is open ended, unless constrained by judicial action).

          Thanks.

          Reply
    3. David Related to that: someone apply 101 consistent with …. the existence of 112/103 (i.e., don’t use those concepts in applying 101; otherwise, you’re violating basic statutory interpretation issues).

      We all know where that gets us, David. “Someone” has been holding your hand for quite a while, David, and doing this for you and explainig to you where you end up.

      Tell everyone how you would re-write the statute, David. Don’t re-write it to please your “favorite boss”. Re-write it so we don’t re-create the same class of lowlifes who broke the patent system thanks to the inept drafters of the 1952 patent act and the short-sighted of same by some ethically challenged judges.

      Reply
      1. re-create the same class…

        Um, you do realize that eliminating your subjective fee-fees is kind of the point of the exercise, right?

        You do realize that the onus is on you if you want to change the law to match your “policy”/opinion table pounding, right?

        You do realize why my adage of “When you have the law, pound the law and when you have the facts, pound the facts” pounds you into dust, right?

        Wake up man.

        Reply
        1. A mere adage pounded poor ol MM into dust! Someone call the thought-police since we have a rogue adage on the loose!

          Reply
          1. ??

            Thought police? Who said anything about thought police?

            Oh wait, this is 6 and he is projecting his “control”-mania again…

            Please carry on.

            Reply
        2. my adage of “When you have the law, pound the law and when you have the facts, pound the facts” pounds you into dust

          Get medical help, d0rk.

          Reply
    4. David, let us start was this. Did Congress intend to overturn the business method and printed matter doctrine’s. I give you on the former Guthrie v. Curlett, 10 F.2d 725 (2d Cir. 1926) and on the latter In re Russell, 48 F.2d 668 (C.C.P.A. 1931).

      Note the form of analysis of these cases dividing the new from old in determining that the new was ineligible even though the old might be eligible.

      What does this have do with “invention?” I can give you the answer. Nothing. And yet it is the mode of analysis that the Supreme Court has taken since Benson, and particularly and Prometheus and Alice. If what is new is ineligible, and if what is eligible is old, the claim as a whole is not eligible.

      I submit to you, the Congress never intended to overturn these cases. Rather, it seems the object of a certain judges to rewrite the law by judicial decision, elevating form over substance, in such a way that anything under the sun might be patented provided that the claim nominally recite one of the four classes.

      Reply
      1. Ned,

        Let’s start with a correct version of reality.

        That’s a much better place to start than your version.

        Reply
  9. After the Court decides that an abstract idea does underlie the patent here, it still has to determine whether the specific patent claims in the case “do more than simply instruct the practitioner to implement the abstract idea of intermediated settlement on a generic computer.” On this point, the Court gives precisely one page of analysis, which concludes with the statements (i) that “the claims at issue here amount to ‘nothing significantly more’ than an instruction to apply the abstract idea of intermediated settlement using some unspecified, generic computer,” and (ii) “that is not ‘enough’ to transform an abstract idea into a patent-eligible invention.”

    I’ll have to teach this “enough” test next semester.

    ————— Duffy above —————–
    Sums up the entire case in one paragraph.

    So, please tell me how an abstract idea can be implemented on a computer? So, a machine that is doing useful work that people are willing to pay for is really an abstract idea. =><= That is newspeak.

    So, really in real life, what the SCOTUS is saying there is no 101 or 112 problem, but this is a 102 and 103 problem, but we aren't going to bother with the 1952 Patent Statute.

    Reply
    1. Night, I somewhat agree.

      The court’s analysis is the same analysis that one would take with printed matter under 102/103 giving the printed matter no weight unless it at some new functionality with respect to the underlying subject matter so as to modify or improve it.

      Since this practice regarding printed matter is so well-established, I don’t see why the patent office would not employ it as well with respect to any subject matter that is ineligible under 101 – simply give it no weight in the 102/103 analysis provided that it has no new functional relationship with respect to the underlying subject matter.

      Reply
      1. unless it at some new functionality with respect to the underlying subject matter so as to modify or improve it.

        Not quite there Ned – you make the same mistake here that DanH/Leopold made: the functional relationship itself need NOT be novel – it just need be there.

        Reply
        1. Realize that the only aspect being evaluated at that point is whether or not to allow patentable weight – NOT a complete investigation of whether or not a patent itself is earned on that aspect.

          Sloppy thinking is being applied – notwithstanding my very simple and clear Set Theory explanation (which you are still choosing to ignore).

          Reply
    1. That is a good article JNG. Thanks. My guess is that you won’t get a wider audience as the wider audiences prefer the dumbed down version of patent law.

      Reply
      1. the wider audiences prefer the dumbed down version of patent law.

        Yes, it’s much better if we allow patent bulls and patent attorneys intent on exploiting the system for their own benefit to make all the decisions behind closed doors with little or no public input. What could possibly go wrong?

        Reply
        1. patent bulls and patent attorneys intent on exploiting the system

          They are exploiting – OH NOES !!!!

          (the point is to “exploit” – it’s called Quid Pro Quo – have you started your reading of Adam Smith yet?

          make all the decisions behind closed doors with little or no public input

          You mean the legislative process – the process set out in the Constitution (as opposed to the advocated method of the Royal Nine making their decision behind closed doors with little or no public input?

          You mean like that? LOL – AOOTWMD FAIL.

          Reply
          1. Adam Smith

            You should dig up his corpse and parade it around the Supreme Court the next time a jnky patent claim is tanked. People will be really impressed.

            Reply
  10. Can any of these brilliant people tell everyone how many patents on old punch cards with “new functionality” were filed for and obtained?

    Because this 1952 patent act seems really, really, really important to the softie woftie types who would seem to have leapt on such claims back in the day. And yet somehow nobody seemed to care so much until computers started showing up inside people’s houses.

    What about patents on methods of advertising using a TV? How many of those were filed in the 1950s?

    Just asking, peeps.

    Reply
    1. You know, your posts might sound more reasonable if you stopped being a giant dick about everything.

      Reply
      1. LOL – no, they would not. You remove Malcolm’s short script responses and you would have nothing at all left.

        Hmmm, that is probably the most reasonable thing one might hope for from Malcolm…. You might be onto something here, roz.

        Reply
  11. Lord Kappos: software, as a class, is every bit as worthy of patent protection as any other medium in which innovation can be practiced

    LOL.

    “We claim new software, whereas said software comprises ….”

    What comes next, David?

    Reply
    1. Here we are in the middle of the question what a “software patent” really is. There is a significant category of “sofwtare patents” that claims external functionality, often without specifying much detail about the implementation.
      See Mark lemley’s article of “the return of functional claiming”. Such patents control competition without furthering the progress of technology. Research by economists (Blind et al.) has revealed that programmers rarely read these patents, and if they do, they usually do that in order to find out what competitors are developing, rather than to learn technical information.

      In a different way, interface (software) patents do not further technology either. Interfaces often are implemented in a “negative non-obvious” way: a “person skilled in the art” would have implemented a better solution, but het cannot since the patented interface has a strong “network value”. If everybody uses a dreadful interface, you still have to use it.

      Reply
      1. See Mark lemley’s article of “the return of functional claiming”

        Let’s not – unless we are willing to take a truly critical view of some massive propaganda.

        Anything by my pal Reinier, with his history of anti-patent mindset, needs to be placed in, what was that word…, ah ,yes, context (as in, what is Reinier’s avowed view of patents in total).

        Nice sheepskin Reiner.

        Reply
      2. “the return of functional claiming”: judicial activism.

        So, in other words, you are going to use some surveys by economist that may or may not have been paid off to get the results and that are quoted by a Lemley who openly calls it the “software problem” and delights in talking about how to “solve” the problem.

        Nonsense disconnected from reality.

        Reply
        1. But nonsense that nicely fits the agenda (and that’s what is really important, dontcha know?).

          / off sardonic bemusement

          Reply
      3. See Mark lemley’s article …

        So much for credibility. Is Lemley a patent attorney? Is Lemley a programmer? Is Lemley an engineer? The answers are no, no, and no.

        Lemley received his BA degree at Stanford in political science.

        Reply
        1. But he is critically connected to Big Data by at least through his role at Lex Machina, should that not count for something?

          (note that I asked “count” without referencing whether that count should be to the positive or to the negative)

          Reply
          1. I forgot to mention, he does have the word science in his degree. That must count for something?

            Reply
              1. Let’s compare to yours, shall we?

                LOL

                LOL LOL LOL,

                ah, 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 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

                Ahhhhhhh, that was fun.

              2. My arguments are winning a lot of important Supreme Court cases and Federal Circuit cases.

                Of course you’ll never admit that, but your failures in that regard are legion.

              3. No point to make again, I see — same old MM.

                In case you missed my point, I’ll make it clearer. Lemley is opining on what software engineers can or cannot do based upon a patent application. My point is that Lemley has little (to no) experience in the most relevant fields pertaining to the topic on which he is opining — kind of like you.

              4. My point is that Lemley has little (to no) experience in the most relevant fields pertaining to the topic on which he is opining — kind of like you.

                A great many people with vastly more relevant experience than you’ll ever have agree with both Lemley and myself.

                Grow the eff up.

              5. Because those techdirt and slashdot people know SO MUCH about the law….

                (yes, Malcolm really does bank credibility on a bunch of know-nothing lemmings)

              6. LOL – Oh no, I know of MANY things that cause Malcolm to abandon conversations.

                But yes, they usually center around asking him to actually speak honestly on an actual point of law or deliver an unspun fact to support his “policy”/opinion table pounding [you know, adhere to 8.4(c)].

                Which makes the duplicity inherent in his number one tactic of AOOTWMD all the more pernicious and evidences a complete and total disregard and indifference to his own CONTROLLED** actions.

                ** See ABA Model Rules of Professional Conduct, Rule 8.4 comment [2] and Rule 8.4(c) directly. Aside from 6′s game of trying to control me by projecting his own “control” issues, Malcolm has professed to be an actual attorney, and this aspect of control that he disregards in his advocacy on this modern social media is NOT a control I impose, but rather, one that Malcolm himself has volunteered to when he took that oath under his state bar.

                Given that Malcolm whines more than all others combined about “grifting” attorneys, it is even more critical that Malcolm adhere himself to that behavior he has sworn to.

    2. Exactly. Let’s just defer to AIPLA for the interpretation.

      Reply
      1. better yet, let’s NOT and instead development the ability to critically think and understand for ourselves.

        The exchange of one lemming hill for another is not really an advance.

        Reply
  12. Duffy: the judge-made doctrine in this area has the potential to swallow all of patent law.

    That’s true only if we only accept the worst reasoned arguments made by the most self-interesting and dishonest grifters on the face of the earth, i.e., the same people who forced this mess on the patent system with their self-serving b.s. arguments in favor of granting “automated” information process methods because … POWERFUL ELECTRONIC BRAIN.

    Novel structure is the lynchpin to patent eligility. It was always thus until the patent lawyers (and their wives) saw their opportunity to become “innovators.” And who handed them that opportunity? Why, Judge Rich and his li’l disciple Randy Rader, of course.

    the Supreme Court’s unanimous resolution of the case does little to change, or even to clarify, pre-existing law.

    Wrong.

    We now know that the highest Court in the land agrees with most sane people that adding the term “on a computer” (or similarly old and conventional machinery long known to be essential for information processing) to an otherwise ineligible information processing method isn’t sufficient to convert that method to an eligible method. This isn’t terribly difficult.

    Reply
    1. It is too bad that you aren’t run by a POWERFUL COMPUTER BRAIN then there might be some sense to what you write.

      Reply
      1. …but at least the believes that machines really do think…

        (no kidding – he really does believe that machines think! and his co-hort 6 thinks that machines should have legal rights equal to actual people…)

        Reply
        1. The thing about this that is just so surreal is that here machines are projected to surpass our abilities with “software” and yet this “software” should not be eligible for patent protection and at least 3 of the 9 believe that this is not the type of thing that was meant to be patented.

          The opinions evince a complete ignorance of science and patent law.

          Reply

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