USPTO Moves to Strongly Enforce Eligibility Limitations

By Dennis Crouch

Earlier this summer, the Supreme Court decided the subject matter eligibility case of Alice Corp. v. CLS Bank Int’l, 573 U.S. ___ (2014). The main point of Alice Corp. was to find that the eligibility-limiting holding of Mayo v. Prometheus, 566 U.S. ___ (2012) applies equally to the patenting of abstract ideas. (Mayo focused on laws of nature).

Alice Corp. offers a two-step process for determining patent eligibility of a claimed invention:

  • Building Block: First, determine whether the claim recites or is directed to a patent-ineligible concept such as an abstract idea, law of nature, or product of nature. The court calls these “building blocks of human ingenuity” that should not themselves be patentable.
  • Something More: Second, determine whether the claim recites sufficient additional inventive features such that the claim does not solely capture the abstract idea.

Although Alice Corp decision stemmed from a district court challenge to an issued patent, the law of subject matter eligibility applies (roughly) equally to pending patent applications. In particular, the USPTO is charged with the task of ensuring that patents are only issued for eligible inventions. Thus, following Alice Corp the USPTO issued a set of guidance instructions to its examiners that follow the two step process. Although the two step approach appears straightforward. There is no standard definition for “abstract” and so it is difficult to identify abstract ideas from non-abstract ideas. Further, we do not know the threshold of “something more” that would allow patentability.

As I have written before, every patent claim serves as an abstraction from any physical implementation of an invention – and so any line-drawing rules on this front will necessarily be either arbitrary or murky. Still, the USPTO is charged with moving forward and examining these cases and, in the absence of concrete guidance in the law, the USPTO must create its own policy. At this stage, USPTO policy on examining for 101 can be largely impacted by White House views on patentability. And the current White House viewpoint seems to be that information-software focused inventions are likely unpatentable under 101 unless tied to inventive technology.

Based on information from several sources, it appears that the USPTO is now taking a more aggressive stance on subject matter eligibility and is particularly re-examining all claims for eligibility grounds prior to issuance. This is most apparent in technology centers managing data-processing inventions classes (Classes 700-707).

A set of form-paragraphs are being used that may present a prima facie case but that do not really provide much analysis:

Claims XXXX are rejected under 35 U.S.C. § 101 because the claimed invention is directed to non-statutory subject matter, specifically an abstract idea.

Claims are directed to a judicial exception (i. e., law of nature, natural phenomenon, or abstract idea), specifically, the abstract idea of [INSERT INVENTION HERE]. After considering all claim elements, both individually and in combination, it has been determined that the claim does not amount to significantly more than the abstract idea itself. Further, while the claims recite [hardware or software elements, such as processors or modules], these limitations are not enough to qualify as “significantly more” being recited in the claim along with the abstract idea. Therefore, since there are no limitations in the claim that transform the exception into a patent eligible application such that the claim amounts to significantly more than the exception itself, the claim is rejected under 35 USC § 101 as being directed to non-statutory subject matter.

. . . Indeed, the claims fail to recite any improvements to another technology or technical field, improvements to the functioning of the computer itself, and/or meaningful limitations beyond generally linking the use of an abstract idea to a particular environment. Although the claims do recite the use of a computer, nothing more than a generic computer, performing generic, well-understood and routine computer functions, would be required to implement the aforementioned abstract idea.

Therefore, because there are no meaningful limitations in the claim that transform the exception into a patent eligible application such that the claim amounts to significantly more than the exception itself, the claim is rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter.

It appears that applications whose inventive features are found in software or information processing will now have a difficult time being patented.

426 thoughts on “USPTO Moves to Strongly Enforce Eligibility Limitations

  1. “A set of form-paragraphs are being used…that do not really provide much analysis…”

    We have a new front runner for understatement of the century!!!!!

    1. Everyone should appreciate that the Alice move at the PTO is from shadow Director Lee.

      So, we have a person hired by Google and by many illegally so that is making a bold move to reject 10’s of thousands of patent applications.

      The legality of this move by the shadow Director should bother any person that cares about democracy.

      1. Reality is that if the shadow Director Lee is going to make bold moves she should go before Congress and be approved.

        Maybe she is afraid of the question, “Ms. Lee did you meet with business people in the Oval Office? Ms. Lee were there any implied agreements about post PTO employment?”

    2. Clown boy (AKA) MM says there ain’t no structure in them there CD-ROMs. Now ‘splain that structure to me. I can’t see it. It ain’t made of iron is it?

      1. Sure clown boy says the machine does do some wonderful things that I enjoy with that CD-ROM, but that ain’t no structure. Everybody knows that there are angels in there working that there machine.

        Clown boy (MM) then drifts off into a self satisfied nap.

        No functional relationship with the machine says clown boy. Only a stacked Federal Circuit would not report a person who said this to the state board and withdrawal their admission to the Fed. Cir. Of course, now we have to deal with people that are science challenged. Who speak of real worlds and imaginary worlds (those are the ones in the computer where things just happen. Not sure how, but it ain’t no invention says Gingsburg a person who should have stepped down last century.)

  2. The PTO is celebrating (on Twitter) the annaversary of U.S. Patent No 1,311,237.

    Would claim 1

    1. In an airship, the combination of a gas bag, a frame for holding the gasbag distended, a plurality of boat-shaped cars arranged tandem detachably secured to said frame, a propeller and engine carried by each car and serving to propel the airship as a dirigible or propel each car by itself when detached.

    pass the Alice test, or do the vague references to gas bags, frames, cars, “detachably secured”, “propeller” and “engine” merely describe the abstract idea “air ship”?

    What kind of engine? What kind of propeller? What size? What horse power? What kind of Gas? OMG this claim would read on the Goodyear Blimp! Whats the frame made of ; Balsa wood? Iron?

    1. The 101 Alice test should suffer the same fate as the Hindenburg and be loaded with the likes of Lemley, Laurie, Posner, MM, 6, Ned, most of the Fed. Cir. Judges and SCOTUS, the shadow director Lee, Stevens, and CJ Smith and the board.

      It would be a glorious day for justice.

      1. The 101 Alice test should suffer the same fate as the Hindenburg and be loaded with the likes of Lemley, Laurie, Posner, MM, 6, Ned, most of the Fed. Cir. Judges and SCOTUS, the shadow director Lee, Stevens, and CJ Smith and the board.

        Beyond parody.

  3. Something buried deep in the thread ge nerated a tiny ripple of discussion.

    MM: “… information processing in the absence of a new and objective physical structure is quintessentially abstract”

    Dan: When people disagree about that very premise – that information processing is abstract – simply insisting on it being so doesn’t convince anyone.

    A fair point, Dan. Here’s the definition of “abstract” from the dictionary: “existing in thought or as an idea but not having a physical or concrete existence.”

    Information itself doesn’t have a physical or concrete existence, at least not one that is recognized by patent law. That’s one of the reasons that information itself is ineligible for patenting. Is there a compelling countervailing argument that information itself is not “quintessentially abstract” and should be eligible for patenting? I’ve not seen it made but I’m all ears if someone can articulate the argument.

    Now, let’s consider a process of creating “new” data from old data. In the simplest form, this is achieved by simply re-naming the data. Take the series of numbers 010100101 for instance. That data by itself could have any number of uses. Now I claim “a process of determining a signifier for a data file, wherein said data file is a movie data file, wherein said movie is a movie that has recently lost its copyright status, wherein said movie data file includes data regarding colors, and wherein said signifier is a series of numbers, wherein said numbers are 010100101.” Note all those “limitations”! I can easily include many more. But all that is happening here is that what is being claimed is (ge nerally speaking) the process of “assigning a name to something.” That process — devoid of any new physical structure — would seem to be an example of information processing that is “quintessentially abstract.”

    What if, without reciting any new objective physical structure, I claim a process of “converting” the information into some other information (e.g., converting an cookie recipe written in English into one written in German). Does that conversion from one form of information into another result in the information having a “physical or concrete existence”? I don’t see how that’s possible. I also don’t see how it’s sufficiently distinct from the example in the previous paragraph to justify carving out an exception to the ineligibility of information, regardless of the name we give to that information and regardless of the utility of that information.

    Remember that thus far the “trick” for getting information-processing processes declared eligible has simply been to pretend that “everything changes” if a Powerful Computer Brain is recited instead of a human brain. That has been the case even where, in fact, nothing about the recited logical steps carried out by the Powerful Computer Brain differ from the steps carried out a by a human brain (e.g., receiving, storing, and “determining/processing” the information). Now we are operating in a legal world where reliance on that artifice has been knee-capped. Personally, I think it’s a better world. Opinions may differ on that subject, of course. But I think the argument that converting one abstraction (information) into another abstraction (different information) in the absence of new objective physical stucture is also an abstraction is a genuine argument and not “table-pounding.”

    I’m open to any and all efforts to identify flaws in the argument (bearing in mind that the unenforceability of software patents is not a “flaw” from my perspective).

    1. So, take any of these information processes and they can be made into a special purpose chip. The structure is in the silicon and impurities. I have designed such a chip long ago.

      THIS IS SCIENTIFIC FACT.

      And, “existing only in thought” is an interesting statement. It goes back to the pre-1930’s when people didn’t realize that thought only exists in our brains. A thought cannot exist without structure except in the fantasy world of angels and pins.

      1. The structure is in the silicon and impurities.

        Then recite that structure in the claim like people in the grown-up arts have been doing since forever.

        [shrugs]

        1. Another harassment post from you MM. The structure is recited in the claims for —-wait for it—ONE SKILLED IN THE ART.

          1. NWPA The structure is recited in the claims for —-wait for it—ONE SKILLED IN THE ART.

            If you’re asserting that “one skilled in the art” of creating new computer functions can correlate a new computer function (e.g., “storing information about the price fluctations in ge netically engineered non-patented green apples grown in states that end with a ‘Y’ “) with new objective physical structure (e.g., the new structure of “silicon and its impurities”), then perhaps you can prove your assertion to everybody here by telling us exactly what this new objective physical structure is, using objective structural terms.

            Go ahead. Make everybody’s day. We’ve all been waiting for years for someone to demonstrate this ability.

            harassment post

            Grow up, man. If you want to comment here with the big boys then be prepared to defend your assertions. If you want to simply stamp your feet and make assertions that you can’t defend just because they sound pleasing to your own ears, there are plenty of other blogs out there where you can do that, 24-7. Let me know if you need links to them.

            1. MM: “The big boys.”

              Yeah, right. You are a big boy? Please tell us all how computer programs are natural laws some more. (I know this was recently argued in the Op Ed section of the NYTs.)

      2. Night, a chip having manufactured into it an algorithm is in fact a new machine.

        This is why I suggest that if the programmed computer were limited to having the new program become part of the computer so that it effectively is like firmware in the chip, then we are talking new machine.

        Night, I don’t know if you have modified your tune by pointing to the chip, but anon resists every attempt to limit the programmed computer claim to a new machine by tying the program to the computer such that it is part of the computer, like firmware.

        1. Ned, I have not changed my tune as you put it.

          I highlighted the chip example because it highlights how far from reality MM is and how is posts are just harassment.

          Your argument is, frankly, silly. You want the infringement to depend on the form. Holding back the scientific argument about a configured computer. The invention should take center stage. The court should try to understand the invention and accommodate the invention as much as possible. I am sure there are more than one SCOTUSs that say that.

          Besides, Ned, your 1 has no structure is nonsensical. How can anything exist without structure? Is it your contention that no 1 exists in a computer?

          Moreover, Ned, from a macro perspective your arguments are clearly wrong. How could a machine perform say driving with no structural difference from a gen eral purpose computer (NOTE that MM’s harassment has made us all have to be aware of “gen”)?
          It is not scientifically possible Ned. So, therefore there must be a structural difference.

          1. Night, I came out of the computer industry drafting claims to improved computers and components. A lot of these inventions were algorithmic in nature, such as data compression and encryption, noise reduction, improved servo algorithms, etc., etc. etc.

            At no time did I find it necessary to claim the algorithms in the abstract. Tied to the machine, the claims were entirely statutory as the machines were improved.

            When someone insists on claiming algorithms in the abstract, not tied to a particular machine, I smell a rat. The rat I smell is an attempt to claim nonstatutory subject matter such as business methods, not improved machines.

            1. At no time did I find it necessary to claim the algorithms in the abstract. Tied to the machine, the claims were entirely statutory as the machines were improved.

              But Ned, MM’s proposition above is that tying it to a machine is not enough unless that machine is a “new and objective physical structure.” According to that proposition, your data compression and noise reduction claims are abstract and non-statutory, if you’re executing them on “old” hardware.

              I think MM’s proposition is much too broad. Information-processing algorithms that are applied to a particular physical process are and should remain patentable subject matter, even if they are implemented using old tools. This view is completely consistent with all of the Supreme Court’s 101 case law.

              1. Dan in your:

                “Information-processing algorithms that are applied to a particular physical process are and should remain patentable”

                …what do you mean by “physical”?

                I ask only because some here would say that the process of running the algorithm on a computer is itself a “physical” process, enough to render the algorithm patentable.

                But you don’t mean that, do you?

              2. 1. An improved disc drive, comprising:

                means for reading data from and writing data to a rotating disc, wherein said means comprises a computer programmed to

                then recite algorithm steps a-b.

                There seems no doubt that we are talking about a particular machine and hardware in that machine that does the claimed functional steps. The machine is improved. The cases are uniform that such claims are eligible under 101.

                MM has never addressed this situation, at least not with me. I think he refers to a gen erically recited computer doing nothing more than what it has always done, process data. The claimed subject matter does not limit the claim to a particular machine, nor does it require the so-called software to be tied to the computer like firmware.

                Trust me, tying the new program to the computer does in fact make a new machine. Software, however, is not claimed that way. Never has been. The computer is not modified. It is simply used.

              3. DanH I think MM’s proposition is much too broad. Information-processing algorithms that are applied to a particular physical process are and should remain patentable subject matter, even if they are implemented using old tools.

                Great comment.

                This certainly gets us closer to The Big Question which is: which information-processing algorithms should remain eligible (i.e., what else needs to be recited in the claim) and why. DanH has identified one of the reasonable and basic distinctions (among many others) that can be drawn between different types of process claims that expressly involve information processings steps/algorithms. Specifically, some information processing claims are tied to processes which transform matter, and some aren’t (note that I’m not including here any tangential transformations such as the consumption of battery power by the computing machine while performing the algorithm).

                Should it suffice for eligibility purposes simply to tie the algorithm to any physically transformative process where the physical transformation is affected by application of the algorithm to that process? I think the answer depends on the algorithm and its relationship to the claim, and also the degree to which you believe that 103 can do any additional “weeding” that might be necessary (in other words, I think the short answer to my question is “no”).

                For instance, what about a physically-transformative process claim (“PTPC”) that includes a “new” algorithm of the form “wherein if X>Y, then Z”, but if X<Y then no steps are taken and no physical transformation occurs? Is that claim eligible when it is literally infringed by (1) processing the information and (2) doing nothing in response to that processing? Assume that doing nothing to the object of the potential transformaton is in the prior art.

              4. For instance, what about a physically-transformative process claim (“PTPC”) that includes a “new” algorithm of the form “wherein if X>Y, then Z”, but if X<Y then no steps are taken and no physical transformation occurs? Is that claim eligible when it is literally infringed by (1) processing the information and (2) doing nothing in response to that processing? Assume that doing nothing to the object of the potential transformaton is in the prior art.

                It doesn’t matter to me whether you call that claim eligible or not – it’s not valid in any case. (And there are a LOT of them out there.) But you don’t need a claim that “covers” the non-operation of a device.

                The best way to avoid this problem is to avoid writing claims that have an if-then structure. It’s usually (always?) not necessary.

              5. Max, this is DanH, not Dan. (There’s a Dan floating around as well.)

                I think you understand me – No, the “physical process” I mean is something outside the information processing element itself. There needs to be an input from the outside world, and, probably, a result that is applied to the outside world.

              6. “I think MM’s proposition is much too broad. Information-processing algorithms that are applied to a particular physical process are and should remain patentable subject matter”

                Perhaps. As a process.

              7. Ned,

                Your argument is just one of using the EPO eligibility standard.

                Fact is that information algorithms — even the so-called business method ones–define real machines, take real energy, time, and space to perform the information processing.

                The structure is as real as the structure in a bicycle.

                That is scientific fact. My bet is that you are older and never took cognitive science or information science courses and never learned the theory behind information processing. Your opinions are ones of that there is some separation between thoughts and the physical world. We know now that is not true. That your thoughts are performed by your brain. All your thoughts have structure. Your arguments are based on there being a physical and spiritual world and it bothers you that the computer is performing those tasks that you think are spiritual.

                And, Ned your claims are just an improvement to hardware. We all know that is eligible because it has to be or the hardware wouldn’t be eligible.

                MM’s: “tie to a physical process”: MM you deny the structure of chip. You deny the space of solutions that a POSITA sees with a set of claims. You effectively take a position from the medieval times and expect others to budge you.

                Ned says: “the computer isn’t modified it is simply used.” Ned, the point of the computer is to run other computers. A gen eral purpose computer is a simulator. That was the point. Everyone that understands the theory behind computers knows that. There is no need to modify the simulator to be structural computer yourself. You are being simulated. Again, EVERYONE that is trained in computer science knows that.

                So, again, we have your lot denying science. Denying structure. Denying information. Denying that conservation of information is the most important law of physics. And presenting just bizarre arguments that I really don’t feel like addressing over and over again.

                A 1 has no structure. Right. Whatever that statement means.

                I think the key to improve this blog is to rid it of the paid blogger. You have no desire for truth but to put out opinions from a policy paper.

            2. And Ned just to clear about your “I smell a rat” comment. I am sure my education in these matters is far superior to yours. I was trained in the Theory of Computation by some of the greats in the field at one of the best universities in the world.

              Trust me: you are spouting nonsense. The sad part is that we no longer have a judiciary that is capable of discerning the difference between nonsense and science. That is why I strongly advocate the dissolution of the Federal Circuit. It is a stacked court. I suspect that the PTO after CJ Smith has had his way is also highly suspect.

              The zeitgeist I am afraid is that there is no more reason. Money trumps all. “I am reality,” is the mantra of the moneyed.

              But, just know there are those of us that are honest folks who truth and science means more to us than sxcking on it to get money from the rich. At least I can sleep at night with a clear conscious. I wonder if shadow director Lee can sleep at night. Lemley doesn’t look like he gets to sleep.

              So, in short, f you all. I have truth and science on my side that is more comfort than being paid by the word to participate on this site.

              1. Just think about what an ignorant sad lot you are. You live in the information age and yet without me not one of you filth behind the ears would even have heard of the Church-Turing Thesis.

                An ignorant sad lot that claims chips have no structure, people practicing an art do not have sets of solutions for functional problems, that thinking occurs by something other than the brain, etc…..

                I know, “I am reality.” Your lot should chant that together while holding each other. For my part, as I said, I have science on my side.

              2. Ned: You argue like an infant.

                Over your head, eh Ned? Ned you appear to be a very stubborn intellectually dishonest person to me.

                I present you with scientific fact. You ignore it and present some bizarre argument that is so twisted and specific as to be meaningless. Your a 1 has no structure argument is about as meaningful as arguing over how many angles can fit on a pin head.

              3. I hardly ignore your facts, Night. It is just that they are irrelevant.

                You seem to think that just because information processing requires energy that that makes information processing something patentable.

                I ask you to observe the statute. You simply ignore me.

              4. Ned: methods don’t define machines.

                Yes they do in information processing. Yes they do.

                You say I argue like an infant? Look, read the sentence I wrote. That is scientific FACT. You are ignorant of the science of information.

                Do you disagree with the sentence? It can be proved that it is true that a method of information processing that is enabled can be converted to a special purpose chip. That is SCIENCE FACT!!!!!!!!!!!!!!!!

                !!!!!!!!!!!!!!!!!!!!! FACT !!!!!!!!!!!!!!!!!!!!!!!!!!!!!

              5. “Do you disagree with the sentence? It can be proved that it is true that a method of information processing that is enabled can be converted to a special purpose chip. That is SCIENCE FACT!!!!!!!!!!!!!!!!”

                Ned it’s a science fact man. Not only that, but it also means that a “method” describes a machine (just not the one they’re claiming lol).

          2. NWPA The court should… accommodate the invention as much as possible.

            What in the world is that supposed to mean?

            How can anything exist without structure?

            You are kicking up dust and running away from the issue. Nobody is asserting that computers “don’t have structure”. The assertion is that the structure is not present in the claim, and therefore what is being claimed is a “functionality.” “Functionalities” are not among the statutory categories. They are, arguably, abstractions. They are ideas about what would be desired as opposed to descriptions of the structures of the actual objects that achieve these “functionalities.”

            there must be a structural difference.

            First, nobody is arguing that a thing A, with known functionality, is structurally identically to thing B, with known functionality that differs from thing A (although that is certainly possible when the “fucntionality” in question is merely informative in nature).

            The argument is that if the distinct structure responsible for that new functionality is not recited in the claim (or in the specification if 112P6 is relied on) then what is being claimed is not a new structure/composition/machine but rather a new “functionality.”

            Repeatedly failing to acknowledge the issues being discussed and returning to strawman topics that your “opponents” (at least this one) are not making or have conceded dozens of times doesn’t get you anywhere. On top of that, you refuse to admit fundamental truths that may damage your ultimate goal. I’ll grant you that you’re in a weak position so maybe that’s all you got. But don’t blame other people for that.

              1. It is a bizarre argument when it includes people telling me that claims don’t define solution sets (when they DO), when I am told that special purpose chips have no structure, when I am told that 1’s have no structure, when I am told that a method is a natural law, etc.

                Those are bizarre arguments. And I realize it doesn’t make any difference how much I debunk any one of them that you and your lot will just go back to square one on the next thread.

            1. MM: distinct structure responsible for that new functionality is not recited in the claim

              It is recited in the claims to one having skill in the art. Your argument is one to make the claims understandable to a layperson, which is not possible in any art.

              The claims in information processing are no different than in mechanical arts. When I claim complicated hydraulic systems which I recently did, the claims appear about the same.

              No difference. The only difference is that there are people like you generating bizzarro arguments that don’t hold water.

            2. MM: distinct structure responsible for that new functionality is not recited in the claim

              It is recited in the claims to one having skill in the art. Your argument is one to make the claims understandable to a layperson, which is not possible in any art.

              The claims in information processing are no different than in mechanical arts. When I claim complicated hydraulic systems which I recently did, the claims appear about the same.

              No difference. The only difference is that there are people like you gen erating bizzarro arguments that don’t hold water.

              And to your grow up comment MM: We all have to add a space to “Gen e” because of YOUR childish comments regarding one of the most respected people in patent law.

          3. “How could a machine perform say driving with no structural difference from a gen eral purpose computer”

            I think they do that by “programming” is how.

        2. And Ned the condescension drips off your posts. You really don’t think you understand patent law better than I do, do you? You have more time to post on here and sort through some of the issues. But you are a judicial activist. You have an agenda. You are like Lemley in that fashion. Nothing you write can be trusted. No cite can be trusted with you because you have an agenda.

          1. Sure, Night, I do have an agenda and I have told you what it is:

            I am strongly against functional claiming.

            I am strongly against indefinite claims.

            I have come to be strongly against business method and “computer implemented” claims because the troll problem is largely associated with such claims.

            I am against reexaminations, and post grant reviews of all types. I believe in standing and in the court system.

            I am against the repeal of 102(f).

            I think the first inventor who has not abandoned, suppressed or concealed should be the only one eligible to get a patent.

            I am against universal prior art applying to US patents.

            I favor prior user rights.

            I believe in the right to an injunction unless it is against the public interest.

            I believe that the system would be better if we banned all disclosure of prior art unless it is set forth in the background section of the patent and discussed.

            Yes, I have AN agenda.

              1. 6, on the last one, the ROW does just fine without any “duty of disclosure.”

                We now flood the PTO with mountains of irrelevant prior art to avoid a charge of inequitable conduct. The only way I can think of to stop this is to call a halt.

                If someone makes a statement that is not true and at the time he or she knows it is not true, that is the real problem we face. This can be revealed in court.

                Hiding published prior art in this age of the internet is not possible.

              2. Well, I agree we should get rid of the requirement to cite generally available prior art. Only if you have some specialized knowledge should you have to cite.

              3. Well, I agree we should get rid of the requirement to cite gen erally available prior art. Only if you have some specialized knowledge should you have to cite.

            1. That’s fine Ned. Go to the Congress and stop trying to get it done through judicial activism and trying to push bizarre arguments regarding information processing.

              Sorry I just don’t feel like being told that stars are really little flashes of thoughts floating through the ether as angels spin to try and capture the thoughts. Really MM’s thoughts on the matter are worse.

              1. Night, I assume by you statement that you believe that all subject matter related to information processing is statutory.

                But you never say how. Simply identify the category.

    2. MM: Powerful Computer Brain differ from the steps carried out a by a human brain

      MM your statements are just so bizarre. This is patently untrue and one of the great li3s of your lot. A patent should not issue under 103 if all that has been done is automate a know method. Everyone agrees with that.

      The great li3 is the hypo below about new music being used to get a patent to exclude all other from the new music. That should never happen under 103. If someone has a patent that includes new music, then the patent should be for something else (and possible the combination of the music), and the music should just be narrowing the scope of the claims.

      You understand that MM? I bet you do. But you won’t admit it will you?

      1. Night, why don’t you simply accept that the likes of music are nonstatutory?

        Processing nonstatutory information remains nonstatutory.

        Processing nonstatutory music remains nonstatutory.

        Processing nonstatutory laws of nature remains nonstatutory.

        Processing nonstatutory grace for the forgiveness of sins remains nonstatutory.

        Processing nonstatutory probability remains nonstatutory.

        Processing nonstatutory math remains nonstatutory.

        Nonstatutory!!!!!!

        Get it???????????????

        You never, ever address the real issue: the statute.

        1. 1. A machine, the machine comprising:
          a really good processor design that passes 102, 103, and 112.

          2. The machine of claim 1, wherein the machine is configured to play music.

          3. The machine of claim 2, wherein the music is Mozart.

          You contend that claim 3 is non-statutory?

          You see the little devil of a hypo that floats in your crowd. That 3 would preempt playing Mozart. But, it would not. It would only preempt playing Mozart on the super doper hardware of claim 1. So, claim 3 is narrower than claim 1. That is the flaw in hypo below, which J backed out of rather than getting to this point.

          1. So a new and improved machine. Every information processing method defines a set of improved machines whether or not they happen to be by configuring a simulator (the general purpose computer) or are designed as special purpose chips does not matter.

          2. So a new and improved machine. Every information processing method defines a set of improved machines whether or not they happen to be by configuring a simulator (the gen eral purpose computer) or are designed as special purpose chips does not matter.

          3. Night, claim 2, ignoring the 112 problems, might be directed to hardware.

            Claim 3 is directed in part to ineligible subject matter. I would rejected it under 101.

            1. Ned, why would you reject it under 103?

              And, more importantly I hope you see how this example illustrates that the fear mongering of including non-statutory subject matter are unwarranted. The patent has to be granted on something to get past 103 like claim 1. Claim 3 only narrows the scope just as any non-statutory subject matter should in a valid claim.

              The fear mongering that adding non-statutory subject matter gets you a patent that covers all uses of the non-statutory subject matter pretend that 102 and 103 do not exist. They depend on a false assumption that the patent is granted based on the non-statutory subject matter.

              1. Why 101 and not 103? Because the problem of the claim is statutory subject matter. The validity of claim three becomes an issue went everything in its parent claims is old. At that point in time the only subject matter distinguishing the claim from the prior art is not eligible.

              2. Besides Ned you aren’t addressing my point are you? My point is that the non-statutory stuff narrows the claim. So, the imaginary patent that is magically granted that precludes all uses of some non-statutory material does not exist.

                The patent grant if 102 and 103 and 112 are properly used would preclude the type of patent that is constantly bandied about. A patent on non-statutory subject matter that precludes all other uses. Well, how’d the patent get granted?

              3. Night, how can non functional, non statutory subject matter even be eligible to distinguish a claim from the prior art?

                This IS the problem, is it not?

              4. Well consider that the only novel subject matter is in claim 3, Mozart.

                The claim effectively claims Mozart when played on commonplace apparatus. How is this “narrow?” It effectively monopolizes non statutory subject matter.

        2. >>Processing nonstatutory math remains nonstatutory.

          Factually wrong. You see the dispute is on the facts. A machine that processes information is not math. Instructions for processing information is not math.

          What is math, Ned? Where does it exist?

          Seriously Ned you need to get past the 1920’s.

          1. “A machine that processes information is not math”…

            Sorry – All computers do nothing BUT math. They only add/subtract/multiply/divide/compare to 0/branch/read numbers/write numbers.

            Nothing else.

            For “information” that is not math, the programmer must first identify an equivalence in math… To search for a word/string requires that word/string to first be converted to a sequence of numbers so that each of those numbers can be subtracted from another number serving as the target. If the result of the subtraction is 0 then the logically the first number matches the second… and the first letter matches the other…

            Sorry, All information processing in a computer is just math.

        3. >>Processing nonstatutory information remains nonstatutory.

          Again, does a machine have to operate on statutory subject matter for the machine to be statutory? Please read Deener.

          Plus, your views on information are just bizarre. According to your thinking, I may as well go to a tarot card reader as a medical doctor. It is all just information after all.

          1. Depends on your “operate on”…

            Operation requires a specific amount of electron flow, supplied in a specific levels of consistency, operate within specific thermal requirements…

            Then yes – statutory subject matter.

            As soon as you get to math… nope. not statutory.

            Your last paragraph is true – you can to to either. What you are talking about is a difference in abstract quality of information.

    3. Everyone on here should realize what the big picture is. Obama said he was going to get things done without Congress. In patents, he decided there was a troll problem. He appointed a shadow director, has stacked the Fed. Cir. and put CJ Smith in charge of hiring anti-patent ALJs.

      That is reality friends. We are starting to see the results of this with death squads at the PTO, a director that won’t even go before Congress and appears to have a direct line to Google, and Fed. Cir. judges that can’t and have no desire to understand any of the inventions they are ruling on. I heard a rumor that some of the Google brain trust has helped Lee in developing a judicial activist strategy.

      That is reality.

    4. And, yes the methods, MM change with the use of computers. That is what any thinking person would expect with technology. At first it starts with what was old and then innovation takes hold….

      It flows out your ears.

    5. You could say that the process of making Crestor is quintessentially abstract.

      But if the process is being performed, it is not abstract.

      The same holds for any real process for processing data such as, for example, a process for improving the focus or white balance of image data.

      Shrug. Your saying it, does not make it so.

      A process is no more abstract than a Buick.

    6. MM: What if, without reciting any new objective physical structure, I claim a process of “converting” the information into some other information (e.g., converting an cookie recipe written in English into one written in German). Does that conversion from one form of information into another result in the information having a “physical or concrete existence”?

      MM: ALL information that we humans use has physical structure. The information is represented. The representation takes time, space, and energy. That is physical and has structure.

      I know in your world angels spin counter clockwise for a 1 and clockwise for a 0.

    7. (hopefully this thread isn’t completely dead)

      MM: Here’s the definition of “abstract” from the dictionary: “existing in thought or as an idea but not having a physical or concrete existence.”

      Doesn’t that definition apply to every process? A process is simply a series of steps to be performed – until performed, they don’t have a “concrete existence”, and arguably they don’t even have one then. And yet, processes are patent eligible…
      Now, you could tweak the definition to say that a process has to work on something ‘having a physical or concrete existence’ to not be abstract, but (i) then we’re back to the machine or transformation test, and (ii) a process executing on a generic computer is certainly executing on something with a concrete and physical existence… but that may (under some interpretations) not be patent eligible.

      In short, I’d say that while that definition may be a fine dictionary definition for “abstract”, it’s not what SCOTUS meant… not that they necessarily know what they meant, mind you.

      MM: Now, let’s consider a process of creating “new” data from old data. In the simplest form, this is achieved by simply re-naming the data. Take the series of numbers 010100101 for instance. That data by itself could have any number of uses. Now I claim “a process of determining a signifier for a data file, wherein said data file is a movie data file, wherein said movie is a movie that has recently lost its copyright status, wherein said movie data file includes data regarding colors, and wherein said signifier is a series of numbers, wherein said numbers are 010100101.” Note all those “limitations”! I can easily include many more.

      Please do – currently, your process doesn’t actually have any steps. If that’s what you intended, then I’d agree with the result: a process defined by an intent or result (e.g. “determining a signifier for a data file”) that doesn’t actually do anything is merely an abstract idea. Now, if you added steps of, say, selecting a number or subset within the series according to some specified rule; and applied some function to the selected subset to generate the signifier, it doesn’t really look that abstract anymore. In fact, our combined hypothetical claim starts looking a lot like performing an MD5 hash on a file to generate a unique identifier for it, no? And I’d say that that’s not an abstract idea, but rather a quite clever and specific one (albeit an old one, now).

      MM: What if, without reciting any new objective physical structure, I claim a process of “converting” the information into some other information (e.g., converting an cookie recipe written in English into one written in German). Does that conversion from one form of information into another result in the information having a “physical or concrete existence”? I don’t see how that’s possible.

      Well, what if you had a claim for converting the recipe from English into German while identifying and properly interpreting colloquialisms or figures of speech, something that would have no meaning to a computer? The result is just a conversion of one form of information to another, but the process of doing that conversion requires very specific, non-abstract steps.
      For example, consider facial recognition technology. “Recognizing a human face” is certainly an abstract idea (as well as an old one, with at least a hundred thousand years of prior art)… but a process for doing it by a computer who doesn’t inherently understand what a face is – requiring calculation of eigenvectors in an input image and comparison to covariance matrices from training images, along with all sorts of statistical processing – doesn’t seem very abstract, does it? And in fact, that’s the sort of non-abstract idea held eligible in Research Corp.‘s discussion of halftoning images, no? (It’s also not obviated by the recent Digitech Images case, which had a method that was “generating first data…; generating second data; combining 1st and 2nd data”, but didn’t do anything more)

      MM: But I think the argument that converting one abstraction (information) into another abstraction (different information) in the absence of new objective physical stucture is also an abstraction is a genuine argument and not “table-pounding.”

      Out of curiosity, given your definition, could you come up with an example of a patentable process that didn’t transform matter from one form into another? Or one that wasn’t performed by something you explicitly label as a new and nonobvious machine? Does your definition of “abstract” necessarily reduce to a de facto machine or transformation test?

      By contrast, I would say that a sufficiently well defined process for some aspect of machine vision such as recognizing faces within a camera image, performed by a bog-standard computer; or playing an accurate game of Pin the Tail on the Donkey with a servo-controlled blowgun made out of old off-the-shelf parts and the same standard computer would not be abstract, with “sufficiently well defined” meaning that there are actual steps recited by the claim and decisions required.

  4. Handful of issues here:

    * I cant understand the logic of people who think this is some attempt by the PTO to “clear out the backlog”. There is exactly one way to clear out the backlog and that’s to summarily grant everything without examining it. Giving more rejections would do the opposite of that.

    * Based on information from several sources, it appears that the USPTO is now taking a more aggressive stance on subject matter eligibility

    Well, it would hardly be possible to take a less aggressive stance than they used to, wouldn’t it?

    * Articles like this just seem to break prosecution attorneys for some reason, and this is tame stuff. I wonder what you’ll do when the court points out that functional claiming is still improper one day.

    * You can’t give an example of “XXX won’t be patentable now” without giving some example claims. I bet a large amount of this freakout is people who have probably been seeking (and unfortunately receiving) overbroad claims for years are learning their overbroad independents are invalid. Your invention most likely has an eligible scope somewhere, but whether that is commercially valuable or not may be a different calculus than you have made previously.

    1. “I wonder what you’ll do when the court points out that functional claiming is still improper one day.”

      But they’re changing the rules in the middle of the “game”! OMG! The humanity!

      1. “I wonder what you’ll do when the court points out that functional claiming is still improper one day.”
        You do realize that many objects are named for their function? or that functional claiming is still perfectly fine with method claims?

        1. You do realize that many objects are named for their function?

          Pretty sure that RandomGuy isn’t suggesting that a claim reciting “a screw” is going to be ineligible under 101 merely because it recites “a screw”. But if you want to stick your head in the sand and pretend that the misguided, short-sighted practice of allowing computer-implemented junk to be claimed functionally is going to continue without major restrictions, go right ahead and take your clients’ money.

          functional claiming is still perfectly fine with method claims

          That depends on the claim.

          1. But if you want to stick your head in the sand and pretend that the misguided, short-sighted practice of allowing computer-implemented junk to be claimed functionally is going to continue without major restrictions, go right ahead and take your clients’ money.
            Do you ever have an original thought? You’ve been spouting this for how long now?

            That depends on the claim.
            Far be it for you to explain what you mean be “depends” — it might actually tax a couple of your brain cells.

            1. Far be it for you to explain what you mean be “depends”

              I’m glad you asked. One easy example of a method claim with functional language shortcomings is a method claim that differs from the prior art only in the recitation of an improperly functionally-claimed new machine or composition.

              Do you need more examples?

              1. One easy example of a method claim with functional language shortcomings is a method claim that differs from the prior art only in the recitation of an improperly functionally-claimed new machine or composition.
                You can have the same problem with purely structural language. Try again.

            2. You’ve been spouting this for how long now?

              Great question. A few years at least. These changes typically don’t happen overnight but they certainly do happen well-within the time frame of typical patent’s lifetime.

              That’s why it’s so strange to hear highly-paid patent attorneys whine and cry as if they were somehow blindsided by the Supreme Court or the USPTO. Were these attorneys living in a cave somewhere?

              We all knew there was some serious denial going on. We knew that because we were exposed to numerous testimonies from highly paid “experts” here and elsewhere regarding cases such as Prometheus where the fundamental glaring issues were never addressed. Even after Prometheus the fundamental issues were not admitted or acknowledged. Instead we got a combination of heel-digging, know-nothings and the inevitable chicken little hand-wringing, in addition to some stillborn legal strategies designed to turn back the clock to some imaginary simple time when all you had to do was recite the word “process” or “computer” in your claim and voila! you’re golden.

        2. You do realize that many objects are named for their function?

          Referring to a known structure is not functional claiming. If I want to claim the range of pre-existing structures that turn bread into toast, I can claim toasters. What I can’t do is invent the first toaster and then claim any structure that toasts, or the act of toasting.

          or that functional claiming is still perfectly fine with method claims?

          What I can’t do is invent the first toaster and then claim the act of toasting. Where in law is there basis for your statement that differentiates the two forms?

          1. Where in law is there basis for your statement that differentiates the two forms?
            I never said there was.

            What I can’t do is invent the first toaster and then claim the act of toasting.
            Why not?

            1. Why not?

              This immediately tips my radar on written description for you. The applicant has invented one means of doing something. He is not in possession of the full scope (i.e. EVERY way of doing something).

              The result would be pretty ridiculous if you didn’t have the rule, since the first person to invent a slingshot, but claim it as “a machine that performs the function of firing a projectile” would read upon a gun, and it is pretty clear that Applicant was never in possession of the gun.

              But since lawyers always want cases: Morse and Lizardtech forbid it. Morse was pre-WD but there is clearly WD language in there. Lizardtech is directly on point.

    2. Well, it would hardly be possible to take a less aggressive stance than they used to, wouldn’t it?
      Really? Where have you been (besides the bowels of the USPTO?)? For any given month over the last 5 years, 80-90% of the FOAM I receive had a 101 rejection.

      Mind you, none of those applications were incurably rejected under 35 USC 101.

      1. “For any given month over the last 5 years, 80-90% of the FOAM I receive had a 101 rejection.”

        Christ sakes son, no wonder you’re all the time btching and moaning around these parts about 101 related nonsense. Maybe you should look into doing some prosecution in the useful arts at some point. At the least it would make your prosecution so much easier.

        1. Maybe you should look into doing some prosecution in the useful arts at some point. At the least it would make your prosecution so much easier.
          I admit, working in the other arts are easier. The Examiners are typically easier to work with and when they do reject the claims, they present better rejections. Examiners in the computer-related arts are much more likely to present bogus rejections and stand by those bogus rejections through thick and thin.

          Contrary to the belief of some, the USPTO issues patents in the computer-related arts very grudgingly. Initial indications of allowable subject matter were quite frequent in the other arts I have worked in — very rarely do I see that in the computer-related arts.

          1. “Examiners in the computer-related arts are much more likely to present bogus rejections and stand by those bogus rejections through thick and thin.”

            Frankly I do not doubt this in the least. I’ve seen some of the rejections by a certain one examiner I know over in those used to be arts (it just died out apparently). And yeah, they’re hilarious, but then, claim construction etc. can be a fraking nightmare. So I don’t know how much blame I can heap upon them.

            What was especially funny was the time he asked me to help him out on a 112 1st, determining if there was WD for an amendment made. Dude, there was literally nothing in the original specification that seemingly remotely supported the new limitations/claim. Yet he was quite torn over making the 112 1st, just really didn’t “get” 112 1st. And his thinking was all tied up in abstract knots when we were talking about the case. Those kinds of cases are a disaster from start to finish imo.

            “Contrary to the belief of some, the USPTO issues patents in the computer-related arts very grudgingly. ”

            I actually don’t doubt this, but then, in our current, awww shucks let’s prosecute until the cows come home environment that doesn’t really make too much of a difference.

            1. awww shucks let’s prosecute until the cows come home environment that doesn’t really make too much of a difference
              Says somebody who works at a government agency whose solution to being underfunded is to simply to increase pendency.

              While you don’t appreciate this, “let’s prosecute until the cows come home” is an expensive practice that most clients would fire their attorneys for — if they don’t, they should. Prosecution costs real money to clients.

              1. “let’s prosecute until the cows come home” is an expensive practice that most clients would fire their attorneys for

                Too bad you weren’t around to chastise some other commenters here who regularly trumpeted their awesome strategy of “appeal! appeal! appeal!”. Presumably they were able to persuade at least some of their clients to prosecute until the cows come home.

                Indeed, we’ve seen that strategy suggested very recently again. Some people have this idea that their client’s dreams of an billion dollar patent that they can use to sue Google or Apple just need to be “parked” for a while until we have a new President who doesn’t want to “burn the patent system down” like Obama allegedly does. Sounds like crazy talk to me but some of these same people believe that the reason the middle class is struggling in America is because we aren’t granting enough patents fast enough.

              2. Too bad you weren’t around to chastise some other commenters here who regularly trumpeted their awesome strategy of “appeal! appeal! appeal!”.
                Why would I chastise a valuable and cost-effective procedure? Why amend claims when the Examiner is wrong?

                Presumably they were able to persuade at least some of their clients to prosecute until the cows come home.
                Appealing is, in many instances, a cost-saver.

          2. Contrary to the belief of some, the USPTO issues patents in the computer-related arts very grudgingly.

            That’s because Applicants tend to claim only small advancements and give no disclosure on how to achieve it, which makes it hard to justify to yourself its not rejectable under either 112, 1st or 103.

            In my entire time in the computer arts I have seen one case where I was chomping at the bit to give the guy a patent. I’ve allowed several other cases on a “close enough” basis. The remainder are, in fact, worthless documents to the public, and their allowance is unlikely at best. If the office had procedures commensurate with the law none of these cases would get through. Since it does not, it becomes a question of how much extra work do I want to do to prove I’m right versus time requirements, backlog clearing, and possibly dumping the issue on a judge later on.

            1. That’s because Applicants tend to claim only small advancements and give no disclosure on how to achieve it, which makes it hard to justify to yourself its not rejectable under either 112, 1st or 103.
              If it was only a small advance, it would be easy to find good prior art. I rarely see good prior art — i.e., the kind of art that I bring to the client and write “take a look at this and tell me whether you want to continue prosecution.” Instead, the art I get usually has me writing to the client — “I don’t think the Examiner read the specification because the art is even close.”

              give no disclosure on how to achieve it
              Enablement is based upon the abilities of one skilled in the art — not your abilities.

              If the office had procedures commensurate with the law none of these cases would get through
              All YOU have to do is find good art — at least art good enough to withstand the Board (you’ll win the lottery before a rejection of yours makes it to the Federal Circuit). Good art is the best way for an Examiner to advance prosecution.

              1. Instead, the art I get usually has me writing to the client — “I don’t think the Examiner read the specification because the art is even close.”

                The Examiner does not reject your specification, just your claims. If the Examiner doesn’t read the specification (and some don’t, and they don’t have to) and you get art that’s totally different than what you do, that’s because you’ve failed to put in necessary limitations. When you have overbroad claims you’re going to get art that’s significantly different from your invention.

                Enablement is based upon the abilities of one skilled in the art — not your abilities.

                Most Examiners are of skill in the art, but you miss the point since it’s not art-specific: When you tell me to do something but you don’t tell me how to do it there’s only two conclusions – You are unenabled, or the most you added was a motivation to combine things the art already knew to make.

                Especially when the art is computers and there is no unexpected results (computers will always follow the logic you give them) you would have to convince me that one would not be motivated to apply [admittedly known function] to solve [problem that the function always solves, because that’s what functions do], which is exceedingly unlikely.

                Now if you have a particular function you might sneak an argument through, but in reality when you have a spec that doesn’t *teach* how to achieve anything, 99 times out of 100 it should be rejected, and in fact the office comes up way short of that number. There should be far more rejections than there are.

                Regardless, when I said 112, 1st, I meant written description. There is an unfortunate view that everything in programming is inherently enabled. While that’s wrong, I can live with it. What I cannot tolerate is someone who states only the result to achieve and then claims achieving the result. You haven’t been free to do that since Ariad. You HAVE to provide a means of achieving the result, even if it is already enabled by the art, because enablement is not the only 112, 1st rejection that can be made. Then you HAVE to provide an expanding principle that shows you possess not only the particular means but the full range of solutions. The latter you cannot practicably do, which is why most independent claims in computer tech shouldn’t issue.

                This is actually entirely beyond debate. If you write a spec that says “To solve problem X do function Y” and then you claim doing function Y, your claim is incurably invalid. That is the law. And yet I would venture maybe a third to a half of specs fail to follow this rule. Which would be okay, if not for the fact that the office doesn’t reject all of them.

                All YOU have to do is find good art — at least art good enough to withstand the Board (you’ll win the lottery before a rejection of yours makes it to the Federal Circuit). Good art is the best way for an Examiner to advance prosecution.

                I actually have to do even less, because really all I have to do is argue that you’ve failed to prove we should give you the scope you claim regardless of what the state of the art is. The fact that most Examiners don’t know how to do this is most unfortunate for them, the applicants, and the public. Showing that you can’t claim the scope you want is actually the best way to advance prosecution. That being said, finding art which would withstand appeals conference scrutiny (the actual standard for an examiner, a higher standard than the Board’s) is certainly useful.

        1. Let’s see the claims and then we’ll all have a better idea of your problems and how to help you.
          Don’t be a disingenuous fk. You show me your claims, and I’ll show you mine. Out yourself and reap the shtload of negative karma you’ve gained over the years castigating people on this blog who’ve used their real names.

          There is ONE reason that real practitioners rarely use their real names of this blog — that reason is MM.

            1. There is ONE reason that real practitioners rarely use their real names of this blog — that reason is MM

              Pretty sure the real reason is that a lot of these so-called “real practitioners” are making some “real dxmbxss” assertions on behalf of some even more dxmbxx clients or on behalf of their own self-interest all over the Internets. Like the guy who showed up here claiming to be all technical and science-y and everything who disagreed with him was ignorant but then it took two seconds to find him making ridiculous statements about gay people while pounding on his holy book.

              Or the guy who showed up here claiming that people who complained about compooter-implementin’ patent tr 0lls were just “jealous” and it took two seconds to find an example of that same guy getting reamed by a district court judge for putting numerous indefensible assertions on the record.

              I didn’t put those words in those people’s mouths. Just like I didn’t cause NWPA to accuse people like me of being just like “ra pers and killers”. Nor did I cause Billy to make up some bizarre strategery about using mailroom staff to screen registered letters sent to attorneys so the attorneys could avoid learning about prior art. Nor did I cause AAA JJ and EG to rant about impeaching judges who use the term “monopoly” to describe patent rights. These folks came up with that stuff on their own. That’s not my problem. That’s their problem. And to the extent these folks are apparently the best folks out there to advocate for your position, “Oh No”, that’s also your problem.

              [shrugs]

          1. You could always paraphrase the claims and leave out the key identifying details. That would be a start.

            [shrugs]

            castigating people on this blog who’ve used their real names

            Oh noes! Some patent lawyer type got “castigated” on the Internets!

            Are there any creatures on earth with thinner skin than these self-entitled softie woftie patentees and/or their attorneys? It seems unlikely. They really do seem to believe they are The Most Imporant People Ever. They either get their way at every turn or, they insist, we’ll all be living in the iron age and nobody will develop any new software. Does anyone on earth believe that? Do they even believe that (in spite of the fact that such assertions are made regularly and with great gusto)?

            1. You could always paraphrase the claims and leave out the key identifying details. That would be a start.
              Where are your claims? People have been asking for them for years.

              Oh noes! Some patent lawyer type got “castigated” on the Internets!
              Put your real name out here and lets see how you like it.

          2. Oh no, “There is ONE reason that real practitioners rarely use their real names of this blog — that reason is MM.”

            Huh?

            What?

            That doesn’t make any sense whatsoever.

            1. That doesn’t make any sense whatsoever.
              You weren’t on this blog when MM went by Malcolm Mooney and many attorneys used their real names when posting. Then, the blog troll, MM, started personally attacking those attorneys and their work product. Now you rarely see anybody posting their real name … and if they do, it is because they are new and (incorrectly) anticipated a level of decorum associated with professionals.

              1. I see.

                Well one’s work product as an attorney is of public record, is it not?

                But, I see your point. The client might get sorely upset if someone began bashing his patent because you the attorney were position here under one’s real name.

              2. “You weren’t on this blog when MM went by Malcolm Mooney and many attorneys used their real names when posting. Then, the blog troll, MM, started personally attacking those attorneys and their work product.”

                I was here the whole time and I don’t remember this “attacking of their work product”. Though I vaguely remember the things MM brought up further above they’re hardly cause for any reasonable attorney to fear. Unless they were making comically absurd assertions in their “work product” or something of that sort I don’t see how MM could be so critical for them to be alarmed.

      2. For any given month over the last 5 years, 80-90% of the FOAM I receive had a 101 rejection.

        Because you don’t claim with the phrase “non-transitory”? That’s like saying 112, 2nds are on the rise because you continually misuse indefinite articles.

        101s for completely improper scopes are indeed on the rise though, but again, it’s only been recently.

        1. Because you don’t claim with the phrase “non-transitory”?
          Not just that, but that has only been around the last 2 years or so.

          BTW — what does “non-transitory” mean? I’ve asked this question before, but no one ever answers me.

          1. It means “I get around Nuijten so neyeh!” in patent lawyer speak.

            Though ostensibly it also refers to the item not being transitory (not permanent), in other words the item is more or less “permanent”.

          2. BTW — what does “non-transitory” mean? I’ve asked this question before, but no one ever answers me.

            I view it as synonymous with “fixed” in copyright law – not eternal, but not fleeting. It’s done purely to exclude a claim to waves travelling through a medium, which are synonymous with data/code per se and are non-statutory.

    3. I bet a large amount of this freakout is people who have probably been seeking (and unfortunately receiving) overbroad claims for years are learning their overbroad independents are invalid.

      DING DING DING!!!!! We have a winnah.

      And remember: nobody could have predicted any of this. It’s all so unfair to those people who were never given any warning that their awesome patents on performing information processing task X “with a powerful computer brain instead of a human brain” might not be enforceable down the road.

      I wonder what you’ll do when the court points out that functional claiming is still improper one day.

      They’ll whine and whine and whine about being persecuted and treated unfairly because they are The Most Important People Ever. Just like they’ve been doing since KSR.

  5. I do not intend the following comment to be either a pro or an anti Bilski/Alice screed, just a prediction of the impact that this will have on patent lawyer incomes. There are already too many patent lawyers chasing too few patent disclosures, and the denouement of Alice will only make things worse. In a few years, after in-house counsel has realized that what can be patented in this space usually is not worth the expense and effort, things will revert to where they were in the pre-CAFC era. Drug patents will remain essential no matter the expense, mechanical and electrical work will chug along, but attempts to patent software will be seen as a speculative gamble generally not worth making. And patents directed towards methods of doing business? Dead dead dead. Even patent examiners will end up taking a hit before all this shakes out.

    1. Egon, somewhat agree.

      A lot of the weeping and gnashing here is caused by people whose incomes will be directly affected by the decisions of the Supreme Court.

  6. I find this post very troubling. The ending “conclusion”, in quote “It appears that applications whose inventive features are found in software or information processing will now have a difficult time being patented.”, is in fact not supported by Alice, which is a very narrow ruling, nor is it supported by application of US patent laws. It is a mere statement of a belief, and one has to wonder from where this belief arises.

    This is not what I would expect from a leading patent blog. I would expect a careful analysis of the law and a discussion of the merits of arguments on either side. Instead, what we see here appears to be more a pro forma analysis with ending delivery as per the original belief, or as per request. Essentially this post is serving up a raw opinion, disguised by a thin veil of academic argument. Perhaps it this post is in fact a political hack job. I don’t know. What I know is that this is not a legal analysis.

    In all matters of patentability, we would well served by a careful analysis of the letters of the law. As an example, those of us that did this sort of analysis to patenting of genetic sequences were well aware that these would invariably fail on all test of patentability. I.e. not invented by the alleged inventor (101), had been in use for millions of years (102), extracted by well-known methods (103), etc., etc. Instead, we lived with the nonsensical “isolation” doctrine for many years. As a profession, it really was the height of academic and professional dishonesty for us to not speak up against bogus patenting in genetics. And as I recall, this blog was fully on board with the nonsense.

    On the other hand, here we have a situation where a careful analysis of the legal arguments, will show that nothing in the current actual law, as per statutes and actual precedent, stands against patenting of software related inventions. In fact, much to the contrary, such an analysis shows that arguments against software patents per se, generally are arguments against patenting per se.

    A physical machine, is an implementation of an abstract idea. It is implemented in a language of mechanical construction, and it is interpreted by nature in real time, by following the laws of nature, which in most cases would be the classical Newtonian physics. For machines in the form of electronic devices, the run-time interpretation machinery includes quantum mechanics. No one in their right minds would demand that a mechanical or electronical invention would have to include a change to the operating environment, i.e. the laws of nature.

    A software based apparatus or system is an implementation of an abstract idea. It is implemented in a software language, and it is interpreted by a computer in real time. A computer in general is machine that performs state transitions and can implement universal recursive functions. A computer belongs to the equivalence class of finite Turing complete state machines, and as such per definition cannot be improved on. Any computer, including a quantum computer, can be simulated by and can simulate any other computer. Any instance of a software based computer can be translated into a fully electronic computer, implemented solely in hardware. In principle, any computer with associated software can also be translated into a fully mechanical implementation. As long as the implementation on a computer produces a state change of the environment that goes beyond support of a mental process, embodies an actual inventive concept that is not an obvious, I would challenge anyone to come up with legal arguments that invalidate software related patents in general, while preserving mechanical patents.

    As for this blog post, DC didn’t even try. He just stated a belief.

    1. Sorry for the numerous typos and missing words…

      I should clarify that in reference to non-patentability of genetic sequences, I of course refer only to any form of preexisting genetic sequence (dna, c-dna, rna) in humans or biological organisms in general. Engineered genetic sequences with significant inventive contributions that materially alter the function of the sequence should of course remain patentable.

      Interestingly, genetic sequences are programs that specify the production of proteins in a biological organism. Arguments against against software patenting per se are immediately applicable as arguments against patenting in genetic engineering per se.

      1. I would like to apologize to DC. I took an unfair shot at the messenger here. Perhaps this is what happens when you see something on your smart phone at 6 AM on a Saturday morning, and rush to stream your thoughts… In any event, DC was really just reporting on the state of things – that it looks like the patent office is starting a shake down on software patents. I just happen to think that the USPTO does not have a basis in law for doing so.

      1. So I can’t be sued for having an illegal copy of Microsoft windows on my machine because I don’t actually have a copy? It’s not part of my machine? That makes no sense.

  7. The advice at 8.6 is to:

    “…read up on EPO eligibility. There are many years of articles and tricks.”

    As MM urges, the sky is not falling. It is inconceivable that the USA will turn its face against patents for the sort of inventions for which the EPO routinely grants wide claims and in technical fields where the USA regards itself as the world’s leader. The vital national interest is to do what is necessary to remain world leader, right? Be sure, if the EPO grants, so will the USA.

    Somebody observed that the USPTO is becoming more severe on validity than the courts. But given the Presumption of Validity, that’s right, isn’t it? What’s the alternative? That the courts are more severe than the PTO. That’s the European way. Is that what you want.

    What you call “definiteness” Europe calls “clarity”. In Europe a want of clarity is not a ground of invalidity. Hence the EPO is harder on clarity than the courts. What could be more efficient and sensible than that?

    Europe can learn a lot from the USA. Some of what it learned was implemented in the 1973 EPC.

    1. Max,

      A comparison with the EPO is not what we want. Everyone understands that the 101 that is being attempted by the PTO is about what the EPO’s 101.

      We are the kings and queens of software. Fact is there isn’t even a close second to us. We own the world. Many of us think it is because of patents that we have maintained our leadership.

      Many of us see the future of secrecy and draconian employment contracts. We see that corporations are already building proprietary systems more and more. This is not good for innovation.

      What you don’t seem to appreciate that the Googles are paying to burn the system down. We have seen the buying of US more and more.

      The Fed. Cir. and the PTO are now stacked with industry purchased people. They are the Googlites. We have not had a patent attorney appointed to the Fed. Cir. in a long, long time. The new head of the PTO was approved by business leaders secretly and likely will exit with $10 million in options from Google in a couple of years. We have seen this in finance.

      The sky has fallen yet. But year by year we see that the patent world once an obscure area of law is now political and the buyers don’t want patents.

      Don’t be naïve. Goldman Sachs recent investment advice is to invest in companies that are near monopolies. That is what is happening to the detriment of the middle class. Comcast and such are making ridiculous profits and buying off our leaders just like the banks.

      That is the zeitgeist. I know long-time people here don’t get that this is not going to snap back so easily because the patent judges, direct, CJ judge, Fed. Cir. are now people that were bought and paid for by the Googles.

      Really a bad situation.

      1. But, Max, that is the reality of the U.S. We have seen it in many areas of our society and law. Patent law is just the latest. Right now we have an opening of Rader’s position. Obama is furiously raising money for the Democrats right for the mid-term elections. That seat on the Fed. Cir. will buy him how much? $10-20 million?

        We also have the Lemleys of our country that burn the system down while sitting at a university and becoming very rich. Be clear that most of Lemley’s efforts are directed towards making him money. He is not an intellectual by any standard. And, yet he is all we got. Top university. He was the type that would save us before and now we have some guy that wants to make a buck and doesn’t mind secrecy and draconian employment contracts.

        1. most of Lemley’s efforts are directed towards making him money. He is not an intellectual by any standard. And, yet he is all we got.

          Lemley is just a guy making some arguments on behalf of people who have been sued for, e.g., creating data using math.

          If he’s not an intellectual than what on gob’s grey earth are you??

          1. Another vacuous comment by you MM. Please Dennis considering taking steps to put a stop to this. MM has only several little games he plays on here but all are directed at harassing anyone that doesn’t agree with him.

            Look I put some effort, Dennis, into putting down some substantive arguments and having several discussions in this thread. MM (and 6) just harass me. They post non-substantive responses to every single one of my posts and flood any attempt to have a real discussion.

            1. NWPA appears to be operating under the delusion that every opinion must be treated equally. Someone says “My opinion is that patents on software are unnecessary and ultimately deleterious to the patent system as a whole.” NWPA doesn’t agree with that so NWPA apparently believe’s he’s “entitled” to smear one of his “enemies” as “not an intellectual by any standard” without providing a shred of evidence to support this unsupportable statement.

              That’s not how it works, NWPA. If you can’t stand the heat, get out of the kitchen. If you make outrageous claims here, expect to be called out and asked for evidence to support those claims.

              If you don’t want to be questioned and have your feet held to the fire when you make outrageous claims and accusations, then you should post your comments at one of the many, many other patent blogs on the Internets where your views are welcomed and echoed on a daily basis, 7 days a week.

              Do you need me to provide the links for you?

              1. The way it works is that anyone that posts on here that you don’t agree with is harassed by you.

                That is the way it works.

              2. anyone that posts on here that you don’t agree with is harassed by you.

                In fact I disagree regulary with many commenters here who never complain of “harassment”. Golly, I wonder why that is the case?

                It seems to me that the few commenters here who do complain of “harassment” tend to be those commenters who expect their views to be accepted unconditionally, as if this is some silly “gentlemen’s club” where every opinion is to be treated with equal respect, regardless of whether that opinion has any defensible basis in reason or reality. Meanwhile, elsewhere on the Internets, there are plenty of More Patents All the Time echo chambers where your views about the patent system are regurgitated 24-7 and any dissent from them results in scorn and banishment. Why not spend more time there?

            2. attempt to have a real discussion

              Just so we’re all clear on your grievances here, NWPA, you’re trying to have a “real discussion” as to whether Mark Lemley is a non-intellectual paid hack and you’re disappointed by the responses you’ve gotten? Is that it?

              draconian employment contracts

              Huh?

              What in the world do these “draconian employment contracts” have to do with the topic of the thread? Let us all know so we can better understand your grievances here.

              1. Again, MM, we know you have an IQ over 80. You know what employment contracts have to do with IP. Please don’t play dum(b).

              2. You know what employment contracts have to do with IP.

                Employment contracts are part of being employed pretty much everywhere. Some employment contracts are “draconian” and some aren’t. [shrugs]

                But I have no idea what “draconian employment contracts” you are referring to or why they are any more relevant to the topic of this thread than the average rainfall in Washington DC.

      2. “Many of us think it is because of patents that we have maintained our leadership.”

        And by “many of us” he means “those of us that procure and/or own software patents”.

        1. Here is a typical 6 response. About what you’d get at the school yard from some guy sitting there smoking it up.

          1. Here is a typical 6 response.

            It looks like a perfectly accurate summation to me. Who exactly were you referring to, NWPA, when you said “many of us” and what evidence supports your belief?

            The fact is that “many” (and probably most) people skilled in the art of programming computers, and many other patent lawyers, and vast numbers of ordinary people, do not believe that software patents are accomplishing much of anything except to funnel money into the hands of relatively unskilled gri fters and increase the costs of software development for everybody.

            1. The fact is that “many” (and probably most) people skilled in the art of programming computers, and many other patent lawyers, and vast numbers of ordinary people
              Most people skilled in the art of programming computers grew up in a culture where stealing IP (e.g., software, music, moves) was considered right — not wrong.

              Many other patent lawyers? Besides Ned and yourself? Who else takes your positions on this blog (a small proxy of the patent lawyer population)? BTW — I’m not counting our examiner contingent. You would think that more of your fellow anti-software patent attorneys would be joining you on this blog. Why aren’t they?

              vast numbers of ordinary people
              The vast percentage care not one iota — as it has zero discernable impact on their lives. You’ve compared patents to lottery tickets before — let me clue you in on something, lotteries are VERY POPULAR. They give people the opportunity to dream about making it big. Nearly every layperson I have has an idea they want to patent — patents are far more popular than you want to believe.

              1. Here again we have Oh No smearing people who disagree with him about software patents as would-be thieves. And now he’s blaming “the culture” for their views, as if all these people have been brainwashed and only Oh No and his crew of untainted old-timers can truly see reality.

                Give us a break already.

                You would think that more of your fellow anti-software patent attorneys would be joining you on this blog.

                I’m not feeling lonely.

                lotteries are VERY POPULAR. They give people the opportunity to dream about making it big.

                Right. Making it big without doing any work or having any skill except giving some guy behind a counter some money. Remind everyone: what percent of those dreamers actually succeed, Oh No? Should we build more lotteries and casinos to “rescue the middle class”? Maybe we should just start handing out patents to people randomly in exchange for money. What a great country!

              2. Here again we have Oh No smearing people who disagree with him about software patents as would-be thieves.
                No … I suspect many are actual thieves — although the term “infringer” best describes them.

                What a great country!
                It is — comparatively speaking. It is also a country with one of the strongest IP protections for software. Interestingly enough, it is also the country that dominates the field of software.

              3. It is also a country with one of the strongest IP protections for software. Interestingly enough, it is also the country that dominates the field of software.

                It’s also the country with the most lawyers per capita and the country where you are most likely to be sued for infringing some computer-implemented j nk patent. Also the country with the highest incarceration rates. Hooray!!!!

                Super awesome stuff. Maybe when you can provide some evidence that the alleged US dominance in “the field of software” is dependent on the number of j nky patents we hand out you’ll have made an important point.

              4. Oh No, I will agree that the patent bar is has always been part of the problem with functional claiming, with indefinite claiming, and with trying to patent everything, from training cats, to business methods.

                Fortunately, we have the court system and companies who get sued that also have a voice. The patent bar is largely insensitive and hostile to such folk. You can see it in your posts, in Night’s, everywhere.

                Oh No, you really out to spend some time defending someone in court to see the other side.

              5. Oh No, you really out to spend some time defending someone in court to see the other side
                Perhaps you didn’t see my point about everybody who has every been sued has accused the other side of having a j nk patent.

                This is just a battle between the haves and the have nots.

          2. Well NWPA you’re free to point me to all the un-interested “philosophers” and “deep thinkers” of our time, CEOs as well as all the street protesters that are all demanding more software patents for the social good and for us to maintain our “leadership”. Alas you have not pointed us to any such things.

            1. 6, you can cut back on the quantity. You and MM post a response to almost every comment you don’t agree with. You drown out any meaningful discussion with you inane comments.

              Some of your comments are fine. Your ha! I stuck you in the eye comments just make it impossible to have substantive discussions.

              1. You and MM post a response to almost every comment you don’t agree with. You drown out any meaningful discussion with you inane comments.

                At this point, NWPA, a fair response to your whining is to tell you to simply go eff off and die.

              2. “6, you can cut back on the quantity. You and MM post a response to almost every comment you don’t agree with. ”

                Ahhh, I see.

                “You drown out any meaningful discussion with you inane comments.”

                That’s odd, your posts seem quite prominent in this thread. As to the “inanity” of my comments, meh, perhaps, perhaps not. This is the interbuts after all.

                But, if that is your grievance, being “drowned out” when you provocatively post (to get responses?) then fiiiiiiine. Perhaps we should just ignore you for a bit. Then you’ll sit around and mock/taunt us “where’s the anti’s on this one?” “The anti’s will never answer x” “where’s MM/6/Ned/etc when I want to talk about y? They have no answer for my glorious assertions!” It’s about as preposterous as all get out.

                But ok, let’s see how that goes.

              3. 6 if that is your grievance, being “drowned out” when you provocatively post (to get responses?) then fiiiiiiine. Perhaps we should just ignore you for a bit. Then you’ll sit around and mock/taunt us “where’s the anti’s on this one?” “The anti’s will never answer x” “where’s MM/6/Ned/etc when I want to talk about y? They have no answer for my glorious assertions!” It’s about as preposterous as all get out.

                Yup. Same with NWPA’s buddy, Billy.

                It doesn’t matter how much we comment or how we say it. What matters is the point of view. Anybody who doesn’t believe that More Patents All the Time Easier to Enforce is the answer to everything gets tarred as “anti-patent” and accused of being a communist or worse. That’s the sort of reptilian brain function we’re dealing with.

      3. We have not had a patent attorney appointed to the Fed. Cir. in a long, long time.

        Why on earth do you believe that the appointment of “a patent attorney” to the Federal Circuit is going to make your world so much lovelier? Aren’t you really hoping for something much more specific than “a patent attorney”?

        The Fed. Cir. and the PTO are now stacked with industry purchased people. They are the Googlites.

        This is pure baloney.

        The new head of the PTO was approved by business leaders secretly

        Blah blah blah blah. If this “new head” of the PTO was bowing down and caving into your every whim, you wouldn’t give a hoot how he/she was appointed.

        Goldman Sachs recent investment advice is to invest in companies that are near monopolies.

        Wow. Deep stuff from Goldman Sachs! Real inside baseball there.

        That is what is happening to the detriment of the middle class. Comcast and such are making ridiculous profits and buying off our leaders just like the banks.

        There are many problems with the way that wealth and power are distributed in the United States. You are enouraged to vote for leaders who are interested in changing these patterns.

        But the idea that a more easily manipulated and exploitable patent system is somehow the key to rejuvenating the middle class is beyond ridiculous. The only people on earth who subscribe to that nonsense are the already wealthy gri fters who did everything they could to kneecap the PTO and turn the patent system into a cesspool.

        1. Must you post some inane response to everything I post. No one. NO ONE with an education would not understand that Obama not appointing patent attorneys to the Fed. Cir. is a good indication that something is up.

          1. And everyone with an education understands that patent law is hard stuff to understand. Most people think it takes 10 years to really understand and get good at patent. That is practicing it. Most people think that learning science is hard and that most people need to learn science to understand patent law.

            Why do you post such inane nonsense? Because you are a troll and probably a paid one.

            1. Most people think that learning science is hard

              Compared to what? Reading James Joyce?

              most people need to learn science to understand patent law

              The problem I see with most scientifically incorrect Federal Circuit decisions is not that the judges have difficulty “learning science” but that, ge nerally speaking, it’s difficult to “learn science” from two groups of adversarial attorneys with differing views of what constitutes a fact and/or differing views of what facts are most relevant. The other problem that arises occasionally is when one or more judges on a panel is more concerned about the effect of a finding or holding on other patentees (or wannabe patentees) than about the facts. That’s how we get self-serving absurd statements to the effect that information “is the essence of electronic structure” enshrined in the case law.

              1. Again, just smoke filled nonsense from you MM. Any educated person gets my point. Your pretend ignorance and pretend naiveté is transparent and does nothing but clog this blog.

              2. Any educated person gets my point.

                Are you calling me “uneducated” simply because I disagree with you about Obama’s alleged plan to “destroy the patent system”? Or am I “uneducated” because I don’t believe, as you appear to believe, that a “patent attorney” needs to be appointed to the Federal Circuit?

                There seems to me to be quite a bit of room for disagreement by “educated” people on those issues. Why do you think that there isn’t room for disagreement on those issues?

                Oh right: people who disagree with you about patent law are “just like the fundamentalists ra ping and ki lling in Iraq”, aren’t they? Isn’t that right, NWPA? Wasn’t that quote among your recent fine efforts to have a “meaningful conversation” here?

                Let everyone know.

          2. NO ONE with an education would not understand that Obama not appointing patent attorneys to the Fed. Cir. is a good indication that something is up.

            Well, you’re wrong as a factual matter.

            What you seem to be trying to say is “If you don’t agree with me about my paranoid theories you are st 00 pit.”

            Why not just say that instead of peddling your bizarre theories?

            Or you can go ahead and identify the specific patent attorneys you have in mind who would make great Federal Circuit judges.

    2. By the way Max, you know it is this bad how? Because just look at the turn around of the Alice situation. From the real people that want to apply the law to the political appointees who want to burn the system.

      And, you can tell it is this bad because Obama is not picking real patent attorneys for any of the positions. You know, USSR use to use this tacit. You can’t get people from a city to brutalize the people in gen eral. So, the USSR would get rural men from a different country send them to 12 weeks of brutal training and then send them to the city to put down an up rising. That is fact. I can’t remember the name but there is a name in Russian for these people. That is what these new people in the patent world are.

      Ignorant of science and patent law and bought and paid for by the corporations. I am sure they believe that patents are bad and are given their several weeks of education and then sent in to burn the system down.

      That, Max, is what is going on in the U.S.

      1. they believe that patents are bad and are given their several weeks of education and then sent in to burn the system down.

        If these businesses really wanted to “burn the patent system down” they sure are going about it an extraordinarily inefficient way.

        USSR use to use this tacit.

        Good lord get a fre aking grip.

    3. And Max,

      Bill Gates said that the only thing that could kill Microsoft would be outside innovation. He said that in the early 1990’s.

      1. And, just think some of the people on here are paid to blog by the anti-patent crowd.

        1. some of the people on here are paid to blog by the anti-patent crowd

          Who is being “paid to blog here”, who is paying them, and what exactly is being paid for?

          1. Now we had a job posting on here for a manager of paid bloggers for an anti-software patent lobbying group. You know this. We have had this interaction at least five times before. So, you either have no memory or you are li@r.

            1. How does some alleged job posting the specific assertion you made? It doesn’t.

              And if you want to see deeply biased and compromised individuals shilling for more patents all the time there’s blogs a plenty doing only that. You have a problem with those too? I never hear you complaining about them.

              Just answer the question I asked you instead of dissembling further.

              1. And here Dennis is another reason to limit MM. He li3s. He constantly li3s on here. He read the advertisement. He has admitted as such before. It is ridiculous to allow him to flood this board with posts in what is an obvious attempt at drowning out any post that he does not agree with.

                Limit him to 10 posts a day. I am seriously Dennis. Read what MM wrote on this thread. He is a troll on this board.

              2. You are alleging that there was a job posting for “paid bloggers” posted here. Let’s see it. What were the details of this job posting? Was someone offering to pay someone else to comment on a third party’s blog?

                If not, then what on earth are you ranting on about? And why do you believe any of those people are commenting here? Who are they?

                flood this board with posts

                I’m responding to your comments. If you want less responses, then consider posting less. If you want less responses asking you for evidence to support your bizarre assertions, then stop making the bizarre assertions.

                This isn’t very difficult.

              1. See this is the type of post that should ban 6 from this board.

                Why? He’s making a joke about the fact that you’re the only one here who endlessly obsesses about these alleged “paid commenters”. It’s equally reasonable for all of us to assume that you’re the one who is being paid to post here and all your obsessing is just a sideshow to cover up that fact.

                [shrugs]

    4. And Max this is what has happened in employment law and anti-trust law in the US. The patents are just going to be the next to fall. The only reason there are any patents now is that pharma was unable to separate chem arts from the electrical arts despite massive lobbying to add this to the AIA.

      1. The only reason there are any patents now is that pharma was unable to separate chem arts from the electrical arts despite massive lobbying to add this to the AIA.

        What on earth are you talking about?

        1. Again, we have had this discussion at least five times. It ends with you wasting my time and running away. So, let’s just end it here. Why do you pollute these boards with your posts? There is seldom content to your posts and your posts are obviously baiting people and obviously responding to good points what you perceive as your opponents have made.

          So, by every definition you are a troll and should be banned.

          1. No we haven’t had this discussion before. It’s possible you floated this nonsense before and then dissembled when pressed for details like you are doing now.

            Lets see your evidence for this absurd charge.

            1. MM, we have had this discussion many times. I win each time. You say the same thing each time. You are a troll. Your game is to get the other guy to do lots of work. No thanks. I have told you the evidence I have that pharma has been attempting to split patent law. I am not going to do it again, and again.

              And, your reaction like it is some outlandish assertion or simply not within the realm of possibility is outrageous.

              1. Your game is to get the other guy to do lots of work.

                If it’s “lots of work” for you to provide the barest scintilla of evidence to support your assertions, then probably you should consider not making the assertion in the first place.

              2. MM, if you are interested go do a little research. See if you can find articles about splitting up the patent system. We have had this discussion 10 times. I have provided you with evidence before.

                Again, you are just acting in an outrageous fashion. Your statements in context are terrible.

              3. MM, if you are interested go do a little research.

                Dude, you brought this up. You’ve already done the research, or so we must assume (or should we assume that you just pulling your conclusions out of your behind). Show everyone your evidence and explain how you arrive at your assertion that “The only reason there are any patents now is that pharma was unable to separate chem arts from the electrical arts despite massive lobbying to add this to the AIA.”

                I’ll be frank that to an educated person like me this sounds like utter and complete b.s.

                If you can’t back up your outrageous assertions then expect to have your feet held to the fire. Why would you expect otherwise? You’re not talking to yourself in some rubber room. You’re posting comments on a patent blog where dialog is encouraged. Step up, man, or go comment somewhere else if you can’t take the heat.

              4. See if you can find articles about splitting up the patent system.

                That would prove only that there are articles that exist that talk about “splitting up the patent system.” You made a much more specific assertion. You said: “The only reason there are any patents now is that pharma was unable to separate chem arts from the electrical arts despite massive lobbying to add this to the AIA.”

                I’m asking you to explain what you’re talking about because this sounds like complete made-up nonsense to me. If you need to retract and revise your statement, go right ahead. But it’s rude, to say the least, to insult people who aren’t interested in figuring out how you arrived at your own gobbledygook.

              5. We have had this discussion many times. The oh gee I don’t get it please explain this and that so I can blow smoke and harass you is old. Very old.

          2. Night, since you rarely add anything of substance to any conversation, but routinely insult and defame people, I would support a ban in your case.

            MM, on the other hand, will always engage one with rational conversation even if the two sides do not agree in the end. Try it sometimes.

            1. Ned,

              Your views are typically so jaded that they are worthless. We cannot be sure if you are acting as Ned the patent attorney or Ned the judicial activist that wants to rid the world of information processing methods.

              I remember for years your, gee just add that the information processor is encoded in a ROM and we can all agree it is statutory is a good example of the type of games you play.

            2. Ned, the first time I was a manager I learned a valuable lesson. Don’t judge people by how they treat you alone, but how they treat other people as well.

              I am happy you feel that way about MM as you two largely agree on the issues. I get the other side of MM because I am someone that does not agree with his positions.

            3. You know Ned, thinking about it your comment is offensive. Read what MM has written below and what I have written. He is asking me the same questions for the 10th time.

              But, then you are a troll too and likely a paid troll like MM too. So, I guess the two of you are natural buddies.

              The fact is Ned that you add some good substance every once in a while, but you are not trustworthy. You are much like Lemley where one has to read the reference to trust in the cite.

            4. Ned, I thought about what you wrote. And, something occurred to me. Most of what you and MM (and the 6 type crowd) post over and over again have to do with factual errors. I would image you don’t like me a lot given that I point out your continued assertion of factual wrong characterizations of technology.

              In this thread there are at least 4 factual errors that I pointed out. I would spend more time with the citations to cases, but your lot is trying to make information processing inventions ineligible via factual misrepresentations.

              1. “Ned, I thought about what you wrote. And, something occurred to me. Most of what you and MM (and the 6 type crowd) post over and over again have to do with factual errors. I would image you don’t like me a lot given that I point out your continued assertion of factual wrong characterizations of technology.”

                We’re all just wrong on the facts! Did you guys hear that? Just plain ol wrong on the facts!

                Well why on earth don’t you bring some evidence in to straighten us right on out? You’ve had like 5 years to find all of one reference to really set us straight.

              2. Ned,

                1) Your 1 has no structure argument;
                2) Your argument that information processing hasn’t changed the way businesses do business which negates your pre 1930 case law;
                3) MM’s assertion that chips have no structure;
                4) Benson (and MM and others assertion) that information processing is really just natural laws (which was argued a few weeks ago in the op ed of NYT)

                The case law that I have been remiss in looking up is the functional claiming issue. I know the case law does not support Lemley’s arguments. And I know that Lemley’s paper from reading it is utter hog wash. I have not and should look up the right cases to make arguments against Lemley and spend some time and debunk his paper.

                Above, Ned are a few of the misrepresentations made. Another famous one is from Laurie about how some information processing methods are the more complicated kind and should be eligible and others are this other class that should not be eligible.

                Frankly, Ned, all your arguments on 101 rest on misrepresentation of the facts. (and now and again on case law, but usually it is the facts.)

                And,I’d add that is one reason the fed. cir. make up of judges ignorant of science is so distressing. They have no way of telling a valid scientific argument from an invalid one.

                And, 6: another harassment post from you.

            5. Night, a 1 has no structure. That is why changes in software do not modify the structure of a computer.

              Software is patentable as a process that does something within the statutory classes.

              Information process has changed business. But that does not mean new software can be claimed as a new machine. Method claims, Night. Method claims.

              MM can answer about chips.

              I disagree with Lemley on this issue as well.

              Information processing is non statutory. That is my position.

    1. From the link: Forget about the clear and convincing standard for establishing the claimed invention to be “conventional” based on prior art pursuant to 35 USC §§102 and 103. This is a much easier attack under the §101 analysis by simply asserting claimed features to be “conventional” without spending resources developing any invalidity arguments based on prior art, expert testimony, or other supporting evidence, without any Markman hearing, and without any claims construction decision.

      Absolutely false. If a patentee (or applicant) has a reasonable argument over the eligible “conventional” steps in his/her claim, then by all means the patentee should make it.

      Of course, if the patentee has no reasonable argument but goes ahead and makes that argument anyway, the patentee should be sanctioned to the fullest extent allowed.

      In a classic case (such as the case with Prometheus’ claims) the existence of the eligible data-gathering step in the prior art was admitted in the specification. That’s not always going to be the case but in nearly all of the worst cases out there will be no dispute about the conventionality of many of the recited elements.

      Computers are ancient tools for processing information. Data receiving means: ancient. Data storing means: ancient. Data transmitting means: ancient. Data organization paradigms and means: ancient. Performing mathematical calculations on data: ancient. Matching items in a database: ancient. Determine whether data meets certain criteria selected by the patentee: ancient.

      And that doesn’t begin to scratch the surface of all of the very highly specific (yet still indisputable ancient and conventional) information processing methodologies that have people have been practicing (without those magical information-processing boxes that became all the rage many decades ago now) for eons.

      It’s true that the devil is in the details.

      Try a little objective physical structure for a change.

      1. Objective physical structure? Like what? So you think that your imaginary bonds between atoms is more structure than silicon?

        1. Obviously I’m not talking about old objective physical structure, friend. I’m talking about objective physical structure that is distinct from the physical structure in the prior art.

          We all know that a plastic and metal box with a keyboard and some silicon chips inside has a “structure.” That’s not the issue here.

          1. Again, same discussion with you at least ten times! It ends with a circuit diagram of implementing the method and you running away and making nonsense statement. This board would be improved about 10 times if you were limited to five posts a day.

              1. Here we go another just inane post to just cloud the issues and put lots of dopey posts in the way of any conversation that doesn’t agree with MM. Every single time he does this Dennis.

              2. Let’s get this straight. A link is posted. I read the link. I comment on the link. You post a response asking me a question. I answer the question. In response to my answer, you post (1) something incoherent and (2) an insult. I ask for clarification of the incoherent passage you posted. Then you cry to Dennis.

                It seems to me that your major problem, NWPA, is that you want your views to be shielded from criticism by me. It has nothing to do with “tone” or anything else. You aparently believe that you are “entitled” to have your view put up on a pedestal and admired just because.

                That’s not how things work in the world of grown-ups. If you want to have your views shielded from criticism then there are plenty of other blogs out there on the Internets where views that disagree with yours are simply deleted and the dissenting commenters are banned. Do you need me to provide you with the links?

                Note also that I have tried in this thread wherever reasonably possible not to simply write you off as a ranting n xtcase, although it’s tempting to do that. I’m asking you obvious questions about your specific assertions, trying to understand if there is a rational basis for your assertions or if, in fact, you are simply smearing people merely because their views represent a threat to your bottom line.

  8. “Second, determine whether the claim recites sufficient additional inventive features such that the claim does not solely capture the abstract idea.”

    I think you mean “effectively capture”. Not “solely capture”.

  9. At least one person below seems deeply obsessed with a certain giant tech company whose name begins with a “G”.

    Lest anyone be confused, these “changes” were not brought about that company or any other “big business.” They were brought about reason and logic and an increased understanding that our patent system had been undermined by a misguided willingness to grant patents on information-processing abstractions.

    While there may be “big businesses” who favor these changes, they are hardly alone and they certainly do not represent the majority of those people who have been arguing (reasonably) for these changes for many years. For instance, the most vociferous proponents of these changes has always included vast numbers of ordinary software developers.

    Politicians know how to conduct polls. Lee is just doing her job. Her constituents include the public who isn’t deeply invested in the (former) status quo and those constituents vastly outnumber those well-heeled, unsatisfiable whiners who think they can reverse the clock by “digging in their heels.”

    1. Lest anyone be confused, these “changes” were not brought about that company or any other “big business.”
      Changes? When did 35 USC 101 change? Whose business is it to change 35 USC 101? Does the USPTO get to write substantive law? Does the judiciary get to write substantive law?

      the most vociferous proponents of these changes has always included vast numbers of ordinary software developers
      Yes — the most enlightened of constitutional scholars … and the people who would be most likely to infringe software patents. Wow — people using other people’s intellectual property are arguing that they should be able to do so without repercussion. How surprising.

      Politicians know how to conduct polls. Lee is just doing her job. Her constituents include the public who isn’t deeply invested in the (former) status quo and those constituents vastly outnumber those well-heeled, unsatisfiable whiners who think they can reverse the clock by “digging in their heels.”
      Let me refer the reader to my comment below about the USPTO having no power to either make law or interpret the law.

      If Congress wants to change 35 USC 101, that is THEIR prerogative.

      1. You sound a bit hysterical, Oh No.

        When did 35 USC 101 change?

        It depends on what your previous view of 101 was. For some people it changed when an engineered mouse became eligible for patent protection. For others it changed when State Street Bank was decided.

        people using other people’s intellectual property are arguing that they should be able to do so without repercussion.

        It’s long been a favorite tactic of the defenders of computer-implemented j nk to accuse any and all critics of the (former) status quo of being thieves or wanna-be thieves. It goes without saying that your assertions here are nothing more than self-serving offensive b.s. The issue is not the desire to “use other people’s intellectual property” but the desire to use one’s own intellect freely, without fear, to instruct machines designed to process any information imaginable to do just that.

        the USPTO having no power to either make law or interpret the law.

        The USPTO certainly has the “power” to interpret the law. Everyone does. I would go further and state that the USPTO not only has the power to interpret the law but the obligation to do so. Whether that interpretation is correct or reasonable is for the court’s to decide. For far too long the PTO has been simply coddling its most whiny “customers” and failing to reasonably apply the law, particularly when it came to computer-implemented j nk.

        Now those beneficiaries of the PTO’s incompetence are reaping the whirlwind. All this was predicted. Let those folks “dig in their heels”. Let those folks “appeal appeal appeal.”

        There’s more changes coming and if you don’t like these changes you aren’t going to like the other changes either. But at least you were warned.

        1. All of your argument can be summed as, “I don’t like j unk patents and I think all information processing patents are j unk.” The law is against me, but I don’t care. Public policy trumps.

          All the rest is just a bunch of intellectual dishonest hog wash.

          1. All of your argument can be summed as, “I don’t like j unk patents and I think all information processing patents are j unk.”

            Actually it’s more like “information is ineligible for patenting, and information processing in the absence of a new and objective physical structure is quintessentially abstract.”

            I do agree that “public policy” informs whether information should be eligible for patenting. Tell everyone: would you support a change in the law that permits the patenting of information per se?

            1. “… information processing in the absence of a new and objective physical structure is quintessentially abstract”

              Bit of a table pound, there. You could have said “clearly abstract”, or “obviously abstract”, or “wangdoodily abstract” with both equal force and evidentiary support.

              When people disagree about that very premise – that information processing is abstract – simply insisting on it being so doesn’t convince anyone.

            2. … information processing in the absence of a new and objective physical structure is quintessentially abstract.”

              That’s not at all what any of these cases have said. Nor is it what the PTO guidance says.

        2. You sound a bit hysterical, Oh No.
          I’m not the one with no life pounding his anti-software message on this blog for 6 years running. Don’t you have real work you need to bill?

        3. The issue is not the desire to “use other people’s intellectual property” but the desire to use one’s own intellect freely, without fear, to instruct machines designed to process any information imaginable to do just that.
          That’s fine with me, except when they COPY somebody else’s work.

          BTW — your logic could apply to any technology and fails on that point.

          The USPTO certainly has the “power” to interpret the law. Everyone does. I would go further and state that the USPTO not only has the power to interpret the law but the obligation to do so.
          You call yourself a lawyer?

          Now those beneficiaries of the PTO’s incompetence are reaping the whirlwind.
          Whirlwind? I wouldn’t even call this a light breeze.

      2. Changes? When did 35 USC 101 change? Whose business is it to change 35 USC 101?

        Well, in 1952 the code was modified from using the term “art”, substituting the term “process”. The original term was used in the sense of work of “artisans”, as in blacksmiths, tinkers, masons, carpenters, tailors, et cetera — in other words, people who work with physical objects and material goods. The change in terminology was made merely to avoid confuse with other uses of the term “art” in the title where it was used in a different sense; no effective change in meaning was intended with the modification (this according to the legislative record).

        So would the original term “art” have included the concept of information processing* along the lines commonly performed by modern computers? Bear in mind that in 1952 programming languages did not yet exist: Fortran, the first high-level, cross-platform language had not yet been created; Shortcode, a mathematical formula translator, had been proposed only a couple of years earlier (with no actual implementations extant); and Autocode, an enhancement of Shortcode that was still mostly a formula translator had only been around for a matter of months… in England… and designed for only a single computer.

        1. Did Art include business methods?

          Emphatically not!

          Hotel Security Checking Co. v. Lorraine Co., 160 F. 467 (2d Cir.1908)

        2. Thanks, saul, for the historical perspective.

          I’m fairly certain there was zero mention of computer programming or information-processing “arts” during the drafting of the 1952 patent act. Programmable electronic computing machines were still too new.

          On the other hand, programmable pianos and music boxes were old. Somehow it was recognized early on that patents were not going to be available for old media comprising new data, regardless of how wonderful that data made everybody feel.

    2. “Lee is just doing her job.”

      Lest we forget that — as the esteemed and widely respected Hal Wegner along with many others has pointed out — Lee was illegally appointed … and is accordingly performing duties she is legally prohibited from performing.

      “Doing her job?”

      Actually, she doesn’t have one.

      Unless of course one counts her Obama administration-backed patent hack-attack job.

      1. Lee was illegally appointed … and is accordingly performing duties she is legally prohibited from performing.

        And so what will happen to all those illegally granted patents?

        We’re all dying to know.

            1. What about sticking with what he wants to know. Why don’t you post your own post if you have a new issue?

              Because you are troll and want to make it impossible for anyone to make a point that doesn’t agree with you.

              Ban him Dennis. Fewer and fewer people read these comments because of MM.

  10. the USPTO is charged with moving forward and examining these cases and, in the absence of concrete guidance in the law, the USPTO must create its own policy
    Wrong.

    (1) As we all know, the USPTO is part of the executive branch — charged with executing the law — not making law or interpreting the law.
    (2) The exceptions to 35 USC 101 are judicially-created exceptions.
    (3) Judicially-created exceptions are to be narrowly construed.

    Based upon these principles, the USPTO has no mandate or constitutional right to go trailblazing in this arena. If the judiciary wants to expand upon the judicially-created exception to 35 USC 101, then it is up to the judiciary to do so — not the executive branch. Of import, SCOTUS was given the opportunity to expound upon the exception and declined to do so.

    It appears that applications whose inventive features are found in software or information processing will now have a difficult time being patented.
    SCOTUS, in CLS Bank, wrote:
    Like the risk hedging in Bilski, the concept of intermediated settlement is “ ‘a fundamental economic practice long prevalent in our system of commerce,’ ” ibid., and the use of a third-party intermediary (or “clearing house”) is a building block of the modern economy. Thus, intermediated settlement, like hedging, is an “abstract idea” beyond §101’s scope. Pp. 7– 10
    SCOTUS did not hew very far from Bilski. On the contrary, SCOTUS stayed about as close to Bilski as they could. If inventive features found in software and/or information processing were patentable after Bilski, they should also be patentable after CLS Bank. SCOTUS was given ample opportunity to go after software and/or information processing in CLS Bank. They declined to do so. They also declined to do so with regard to business methods.

    To paraphrase Scalia, ‘3 is not 5.’

    1. SCOTUS was given ample opportunity to go after software and/or information processing in CLS Bank.

      The holding that the addition of a computer or computer system to an otherwise ineligible claim was insufficient to rescue that claim is perhaps more important than you think.

      Maybe it’s the case that your claims, or your client’s claims, are “better” than Alice’s claims or Bilski’s claims or Prometheu’s claims (none of which would have been saved by the recitation of “a computer”). We don’t know because you aren’t sharing those claims with us.

      But we do know that it’s extraordinarily easy to hammer a lot of computer-implemented j nk that we’ve seen being filed on and asserted these past ten or fifteen years. And that task is made even easier when folks like you refuse to see the writing on the wall.

      There’s more changing comning. You do know that, don’t you? 101 is hardly the only tool that has been carefully sharpened for the purpose of draining the life out of the infestation of computer-implemented j nk. Of course you know this.

      1. The holding that the addition of a computer or computer system to an otherwise ineligible claim was insufficient to rescue that claim is perhaps more important than you think.
        It eliminated a safe harbor — it didn’t change what was a claim directed to an abstract idea.

        We don’t know because you aren’t sharing those claims with us.
        You don’t share your claims with us, so isn’t that fair?

        There’s more changing comning. You do know that, don’t you? 101 is hardly the only tool that has been carefully sharpened for the purpose of draining the life out of the infestation of computer-implemented j nk. Of course you know this.
        Yawn — while there are some that think the sky is falling, I am not one of them. You were ecstatic after KSR, but I have found that case has little meaningful impact on my practice.

        BTW — if you think software patents are ‘j nk’ then you haven’t seen a lot of the mechanical-type patents out there. I’m sure there are plenty of j nk biotech, chemistry, and electrical-type patents as well. However, not being ‘j nk’ is not a condition for patentability.

        1. Oh No It eliminated a safe harbor — it didn’t change what was a claim directed to an abstract idea.

          I don’t see how that can interpreted as a positive development. A lot of the computer-implemented info-processing j nk out there is at least as abstract as Alice’s j nk.

          You don’t share your claims with us, so isn’t that fair?

          Right, but I’m not the one suggesting that the holding in Alice is limited to manipulations of “shadow accounts” or the elimination of one particular “safe harbor.” Maybe you weren’t doing that either. I’m just interested in whether you believe that some other language could have been used to rescue the claimed invention in Alice, and what that language looks like.

          You were ecstatic after KSR, but I have found that case has little meaningful impact on my practice.

          It didn’t affect many of our practices because we wisely chose not to rest our client’s hopes on the lack of a reference containing verbatim specific teaching to combine X with Y. The happiness about KSR was the fact that the weak commonsensical “innovations” of our clients’ competitors (or patent tr 0lls) would be much more difficult to protect with patents.

          I’m sure there are plenty of j nk biotech, chemistry, and electrical-type patents as well.

          Of course there are j nky claims out there in these fields and I’ve never hesitated to acknowledge that. But generally speaking innovators in those fields are incapable of simply sitting at their desks and pumping out dozens of hundred million dollar “innovations” merely by thinking about who would be nice to sue and then drafting a claim (or searching for some other tr0 lls claim) that might do the trick.

          This is a huge difference between information-processing j nk claims and the j nk claims we see in other fields. If you’ve practiced in multiple areas or been sued by some tro ll wielding some computer-implemented j nk, you’d understand this. How do you think we arrived at this juncture, anyway?

        2. Oh No: It eliminated a safe harbor — it didn’t change what was a claim directed to an abstract idea.

          I don’t see how that can interpreted as a positive development. A lot of the computer-implemented info-processing j nk out there is at least as abstract as Alice’s j nk.

          You don’t share your claims with us, so isn’t that fair?

          Right, but I’m not the one suggesting that the holding in Alice is limited to manipulations of “shadow accounts” or the elimination of one particular “safe harbor.” Maybe you weren’t doing that either and if so I apologize for the request. I’m mainly interested (and I’m not the only one) in whether you believe that some other language could have been used to rescue the claimed invention in Alice, and what that language looks like.

          You were ecstatic after KSR, but I have found that case has little meaningful impact on my practice.

          It didn’t affect many of our practices because we wisely chose not to rest our client’s hopes on the lack of a reference containing verbatim specific teaching to combine X with Y. The happiness about KSR was the fact that the weak commonsensical “innovations” of our clients’ competitors (or patent tr 0lls) would be much more difficult to protect with patents.

          I’m sure there are plenty of j nk biotech, chemistry, and electrical-type patents as well.

          Of course there are j nky claims out there in these fields and I’ve never hesitated to acknowledge that. I point out ‘em out whenever I see ‘em, which is too often.

          But, ge nerally speaking, innovators in those fields are incapable of simply sitting at their desks and pumping out dozens of potentially hundred million dollar patentable “innovations” merely by thinking about who would be nice to sue and then drafting a claim (or searching for some other tr0 lls claim) to do the trick.

          This is a huge difference between information-processing j nk claims and the j nk claims we see in other fields. Anyone who’s practiced in multiple areas or been sued by some tro ll wielding some computer-implemented j nk would appreciate this. How do you think we arrived at this juncture, anyway?

          1. I don’t see how that can interpreted as a positive development. A lot of the computer-implemented info-processing j nk out there is at least as abstract as Alice’s j nk.
            Hardly. Of course, believe all you want to believe. As I pointed out when CLS Bank decision was first issued, this decision gave your side the least amount possible while still being a “victory.” SCOTUS had the opportunity (and was being begged to do so) to craft a much different decision that would have eliminated business methods and/or software — they didn’t.

            SCOTUS could have drawn the line anywhere they wanted — the line they drew, however, was right next to Bilski. Bilski came out 4 years ago, and we have had record numbers of so-called “j nk software patents” issue since then.

            Anyone who’s practiced in multiple areas or been sued by some tro ll wielding some computer-implemented j nk would appreciate this.
            Ah yes … it is a j nk patent when you get sued over it. Isn’t that a standard defense? This is why your complaints ring hollow. Every patent that has ever been asserted has been declared (by the other side) as being j nk (in one way or another). It reminds me of the quote from Shawshank Redemption that goes something like “everyone in here is innocent” — nobody ever got sued on a good patent.

            1. SCOTUS could have drawn the line anywhere they wanted — the line they drew, however, was right next to Bilski.

              I can’t see these “lines” you refer but we both agree that what was once believed by a great many people (not me) to be a “safe harbor” was just obliterated. And the logic in Alice certainly applies other abstractions and other “safe harbors”.

              Bilski came out 4 years ago, and we have had record numbers of so-called “j nk software patents” issue since then.

              Indeed. But the present thread is about the PTO waking up and actually applying Bilksi and Alice. Those patents you referred to were already to ilet paper from my perspective but now my perspective is shared expressly by quite a few more people — important people. Repeated smackdowns by the Supreme Court tend to have this effect.

              it is a j nk patent when you get sued over it.

              People continue to take licenses to non-j nky patents all the time. Obviously if you refuse to take a license, you should have a good reason for doing so.

              There’s some really great reasons now not to take a license to a lot more j nky computer-implmented “innovations.”

              It’s weird that you’re trying to pretend that “there’s nothing to see here.” Things are changing, for the better, slowly but surely. And they’re going to keep changing until the muck is dredged out of the system.

              Watch and see.

              1. The fact that you have repeatedly used “j unk patents” to make your argument illustrates that you are judicial activist that is trying to trump the law with public policy.

              2. I can’t see these “lines” you refer
                I suggest you read the decision — particularly the part where they talk about Bilski.

                Those patents you referred to were already to ilet paper from my perspective but now my perspective is shared expressly by quite a few more people — important people
                Important people? Who else besides you? You certainly are delusional.

    2. Oh No: “(1) As we all know, the USPTO is part of the executive branch — charged with executing the law — not making law or interpreting the law.”

      DC: Totally wrong. Executive agencies do make and interpret law and the USPTO is no exception.

      1. Well, the PTO does not have substantive rule making authority for 101, so they are not in a position to make law for 101.

        1. Even if that were true, NWPA, I don’t see any attempt to make “new law” here, unless you believe that the holding of Alice is limited to rejecting claims that look exactly like Alice’s claims.

          1. Did you read my post MM? I responded to Dennis’s post which I believe was in error. Did I say that the new guidelines were an attempt to make new law?

            1. You see Dennis the problem with this board is people like MM. He just harasses people and presents intellectually dishonest arguments. I would strongly recommend limiting the number of posts he can make per day.

              1. MM I’m not going to play your dum(b) game with you nor explain what I wrote to you over and over whenever you don’t agree with it. We both know you understood my point.

                You see Dennis here is another one. No one that disagrees with MM and 6 can post on this board without massive harassment.

      2. Dennis, you should check your legal sources again. Unlike some agencies that do have authority to promulgate rules having the “force of law,” Congress has not vested the PTO with any “general substantive rulemaking power.” Tafas v. Doll, 559 F.3d 1345, 1352 (Fed. Cir. 2009). The AIA did not amend 35 U.S.C. § 2(b)(2), the section of the statute that grants rulemaking authority to the Office.

        1. That said, the lack of substantive rulemaking power does not mean that the PTO should refrain from interpreting the law in order to provide the Alice guidance to examiners – examiners must know how to proceed. However, this guidance cannot bind any applicant, and it has no legal effect for two reasons. First, it interprets substantive patent law – an action for which the PTO is endowed with no authority; second, it does so using guidance and not through the rulemaking procedures under the APA. The D.C. Circuit explained why agencies may not promulgate binding rules through guidance in Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000). For these reasons, courts will not, and cannot, defer to the PTO’s guidance on applying Section 101.

          1. “For these reasons, courts will not, and cannot, defer to the PTO’s guidance on applying Section 101.”

            Well, that presumes they don’t take a notion to on their own. They may do so if they feel like it. Just to bring everything “together”.

      3. Dennis, you should check your legal sources again. Unlike some agencies that do have authority to promulgate rules having the “force of law,” Congress has not vested the PTO with any “general substantive rulemaking power.” Tafas v. Doll, 559 F.3d 1345, 1352 (Fed. Cir. 2009). The AIA did not amend 35 U.S.C. § 2(b)(2), the section of the statute that grants rulemaking authority to the Office.

        That said, the lack of substantive rulemaking power does not mean that the PTO should refrain from interpreting the law in order to provide the Alice guidance to examiners – examiners must know how to proceed. However, this guidance cannot bind any applicant, and it has no legal effect for two reasons. First, it interprets substantive patent law – an action for which the PTO is endowed with no authority; second, it does so using guidance and not through the rulemaking procedures under the APA. The D.C. Circuit explained why agencies may not promulgate binding rules through guidance in Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000). For these reasons, courts will not, and cannot, defer to the PTO’s guidance on applying Section 101.

      4. Executive agencies do make and interpret law and the USPTO is no exception.
        The USPTO has interpretive rulemaking authority — it cannot make substantive law.

      5. DC: Totally wrong. Executive agencies do make and interpret law and the USPTO is no exception.
        Now that I got a moment to properly respond, please reconcile your statement that I was “[t]otally wrong” with the following quote from Koninklijke Philips Electronics N.V. v. Cardiac Science Operating Co:

        The PTO lacks substantive rulemaking authority. See Merck & Co., Inc. v. Kessler, 80 F.3d 1543, 1549–50 (Fed. Cir. 1996) (“[T]he broadest of the PTO’s rulemaking powers—35 U.S.C. § 6(a)— authorizes the Commissioner to promulgate regulations directed only to ‘the conduct of proceedings in the [PTO]’; it does not grant the Commissioner the authority to issue substantive rules.” (quoting Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 930 (Fed. Cir. 1991))).

        Also, I note that you didn’t comment about my discussion of about how judicially-created exceptions are to be narrowly construed.

  11. There will be inevitable problems with confused examiners, but as far as the courts are concerned I do not understand the breadth of the blog statement that: “It appears that applications whose inventive features are found in software or information processing will now have a difficult time being patented.”
    Alice repeatly expresses the fact that there were no novel or inventive features in its software or computer implimentation [not even argued] and expressly stated that “the computer implementation did not supply the necessary inventive concept.”

    1. I think we are in a Dudas world where the PTO is harsher than the courts are going to be. In a very ODD turn about, it may be that the SCOTUS actually will be more expansive than the PTO or the Fed. Cir. on 101.

      We may see one ore more of these go up to the SCOTUS and the SCOTUS reverse a 101 rejection. That’d be my bet. Because the Fed. Cir. and PTO are stacked with Google people.

      1. No, I just don’t believe the entire non-business-method patents sky is falling from the Alice decision, even if more PTO examiner views will have to be appealed and reversed.

        1. “appealed and reversed”

          Good luck with that. CJ Smith has hired most of the patent judges that Rader described as the death squads.

        2. Paul, the main problem with business methods is that they are abstract, non statutory. When Kennedy asked for just one example of a business method that was not abstract or statutory, he received no answer.

          From Hotel Security, we know that the means for implementing a business method might be patentable, but those means must be new and non obvious themselves.

          But we shall see.

          As its stands, no one court, anywhere other than State Street Bank, has ever approved of a business method. Not one.

  12. I’ll note again that this common gambit (among the proponents of ge neric software patents) of identifying some desirable information processing invention in ge neric terms and then implicitly suggesting that this information processing invention is ineligible (oh no!) is doomed to failure.

    There’s two reasons for this: (1) claims directed to information-processing inventions are still perfectly eligible when the claims provide sufficient structural (not functional) detail to distinguish the invention from the prior art based on those structural terms; and (2) just because some ge nerically claimed information processing is ineligible doesn’t mean that nobody will program a computer to perform the recited ge neric information processing. In fact, the opposite is true. When fewer patents on ge neric information processing functionalties are granted, that functionality will become far more easy to implement. Why? Because people with the skill to implement information processing functionalities on a computer will be able to do so without fear of infringing a dozen different patents using a thousand different words to describe that functionality.

    I’d be interested in hearing from reasonable people who understand the issues and who aren’t deeply invested in turning the clock back to the pre-Bilski era about any proposed fall-back positions for patenting software. What would still “work” for them which might also satisfy those of us concerned about the creation of a class of patent attorneys who sit around and “innovate” ways to sue anybody who uses a computer and is likely to settle?

    1. (not functional) detail to distinguish the invention from the prior art based on those structural

      A functional description in software defines a structure. Geez, must we go through this misrepresentations over and over again. What’s next? What is the structure of a 1?

      A machine doing what our my precious organ does and we are saying it is ineligible ’cause big business wants it so.

      ** REALITY **

      1. A functional description in software defines a structure.

        How wonderfully circular.

        Are you now suddenly able to tell everyone what this “structure” is if provided with the function? What’s the “structure” of “storing Johnny’s credit history”? How does it differ from the “structure” of “storing available real estate data”? Please tell us the answer, in structural terms of course.

        The entire point of these changes is to recognize that information-processing processes are different from the kinds of processes that the patent system was designed (or is capable of) protecting.

        I welcome any proposals for fall-back positions. You should have been planning for this years ago. You really think that “digging in your heels” is going to turn back the clock?

        1. MM, you persist in your structure arguments that are absurd. I have designed a special purpose computer chip before in college. That performed a method. The structure was in the silicon and the impurities added to the silicon.

          Please. Stop this nonsense. Every method defines structure in information processing.

          1. The structure was in the silicon and the impurities added to the silicon.

            That’s nice. Claim that structure and enjoy your patent.

            [shrugs]

            1. I do claim that structure when I claim a information processing method ———-to one skilled in the art!!!!!!!!!!!!!

              1. Circular self-serving nonsense.

                You do realize that the CAFC has already thrown your “argument” into the trash can, don’t you? And that vast numbers of programmers completely see through your silliness?

                You need a different argument. And maybe there isn’t one. Think about that.

              2. “Circular self-serving nonsense.”

                All relying on imaginary people that solely exist in NWPA and a few other like minded people’s minds. Where the actual people of ordinary skill are against this sort of thing as noted above in the thread.

              3. neither of you are skilled in the art.

                I’m highly skilled in the art of dreaming up new and useful computer functionalities.

                Therefore I’m highly skilled in the art of dreaming up new structures for computer hardware. Because function is structure and software is equivalent to hardware.

                Is that the argument, NWPA?

                Seems like a cr p argument to me.

              4. That is the argument that your lot push.

                The reality is that those functions you dream up may or may not be enabled. The set of what is enabled is known to those skilled in the art.

                I know that you and Stevens think you just dream something up and then give it to a boy to program.

                Well, guess what? That isn’t the way it works. And, when those of us that are skilled in the art read a claim we know if it is enabled by the spec. You don’t.

                Just another one of the misrepresentations that you push and your lot push.

                Fact is that your lot has nothing going for it in the facts. Your lot only has money that has bought judges and directors. That’s it.

              5. “The set of what is enabled is known to those skilled in the art.”

                That’s very interesting.

                I thought imaginary men of skill in the art only knew what was old anyway? How does that, whether they know only what is old, or if they know more than that, factor into all this?

              6. The set of what is enabled is known to those skilled in the art.

                The ordinary skilled artisan knows that a ge neral-purpose programmable computer (of the sort we typically see in a computer-implemented claim) is capable of being programmed to process any information that it has been “configured” to process.

                I’m not aware of many folks claiming “A computer configured to perform new information-processing function X, wherein new information-processing function X is performed with some degree of reliability depending on the skill of the programmer”.

                So where’s the “enablement” issue with the typical functionally-claimed computer-implemented claim? Is there some amount of programmer time or money over which a functionally-claimed computer becomes non-enabled? We’ve all been told here more than once that once the new information processing function is described, the enablement analysis is over because any skilled programmer can eventually implement the functionality, if given enough time and computing power, once he/she is informed of the desired function.

                Isn’t that why you believe you are entitled to claim the functionality in the first place, without any demonstration that you’ve achieved that information-processing functionality in fact, in the context of any real-world operating system?

              7. NWPA:

                1) Let’s say I have this awesome new chord progression that no one has ever thought of before. Across all cultures and creeds, people love it. By itself, clearly not patentable right? And something we ABSOLUTELY do not want to patented?

                2) But if I try to patent any use of the chord progression with computers… do you think that is patent eligible?

                3) If yes to 3, didn’t you just essentially give me a patent the chord progression, since any recording and transferring of the chord progression would infringe the patent?

              8. J: The right way to think about that is this. A computer configured to play your music. There is no reason to exclude that from 101. But, the analysis would be a 103 argument. The computer may very well be novel hardware and it plays music. Why would you want to exclude it under 101? Instead, a 103 analysis would be the way to think about this.

              9. As Justice Scalia would say, this is my hypothetical. I am asking about a patent on ALL computer and electronic use of a unique, brand new, chord progression. Please help me understand your position. Is it at point 1), 2), or 3) that we disagree?

              10. J:

                I answered the question. The question is not a fair question because it presupposes that a patent can be granted on something obvious. The hypo is like saying like’s pretend that 102 and 103 don’t work and let’s see what could happen if we don’t expand 101.

                The answer is it is a bad hypo. If you tried to patent any use of the cord progression then it should end in a 103 based on the facts you present. So, yes, it should be patent eligible if you are claiming a computer that performs the cord, but the claim should never be granted under 103.

                The only functional value according to the patent system is in playing the cord and not the cord sequence itself. So, a computer playing the cord should fall under 103.

                Again, 3 assumes the patent was granted. But what for? The patent system should not grant that patent under 103.

                You see the problem? The hypo is loaded.

              11. MM:
                >>The question is not a fair question,
                “Bullcr xp.”

                MM, if you think that then give a reason. Your blubbering doesn’t help.

              12. The reason why I picked this hypothetical was to highlight a particular point. And I am trying to figure out your position. I find the patents that have made it in front of the Supreme Court in the 101 cases the past few years just as ridiculous as my example. Do you think that the patents in Bilski, Myriad, Mayo, and Alice were valid patents, or should have passed 101 analysis and rejected under 102 or 103?

              13. J, none of the patents before the SCOTUS should have been rejected under 101. All of them under 102 or 103.

                My position is simple: what was the patent granted for? Under your hypo you are assuming the patent would be granted for the unique cord, but it should not be. It would be obvious over a computer that plays music.

                You see the problem with your hypo? Your hypo assume that a patent is granted, but why would it be? That is the question to you.

              14. And J I am not going to respond to you anymore unless you engage in this interaction fairly. I’ve asked you now repeatedly to tell me more about the hypothetical granted patent.

                Tell me what the claims look like. I can tell you that it will not be valid claims over 103 based on your hypo.

              15. Ahh! Here is the thread… I was looking for 20 minutes in that 1,000 comment section. Sheesh.

                Anyways, NWPA, there isn’t much more to say about this hypothetical patent, because I see that we agree that it is not patentable. I agree that the best analysis is to reject it under 102 and 103.

                I don’t think my hypothetical claim would ever be allow. I can’t even think of an argument that would say it could be patentable, which is why I couldn’t answer your question.

                Even if I could come up with an argument, the claim is obviously directed to unpatentable subject matter… just like Bilski, Mayo, Myriad, Alice. For example, in Myriad, it was argued that because there was a chemically new molecule, it is patent eligible. But the Court rejected this because the claim is DIRECTED to the genetic information, not a new molecule.

                If people want to know why 102 and 103 is not used anymore to reject this junk, look to those patents that were granted, and some of them upheld by the Federal Circuit! How can we uphold, for example, Myriad but then reject my claim?

                NWPA, you seem to indicate you wouldn’t, ultimately, uphold Myriad. So that isn’t a question for you. I think we lost the 102 and 103 analysis because it wasn’t working well enough in practice.

              16. This might not make sense until my post gets approved, but this is how I imagine patents like the ones in Myriad get granted…
                Patent Examiner: This chord progression is not patent eligible.
                Patent Attorney: But the claim uses a machine, so it should pass 101.
                Examiner: Yes, but the machine is old, it will fail under 102.
                Attorney: That might be, but let me at least let it pass under 101.
                Examiner: Ok, but it won’t pass 102.
                Attorney: Ok.
                Examiner : Promise not to talk about the chord progression anymore?
                Attorney: Promise.
                Examiner: Ok, it passes 101, but I’m rejecting it under 102.
                Attorney: NO, YOU CAN’T, NEVER HAS THERE BEEN A COMPUTER WITH THIS CHORD PROGRESSION.
                Examiner: But you said we weren’t going to talk about chord progression anymore!
                Attorney: But that was 101 analysis, we are talking about 102 now!

              1. Here’s another post of great substance. So, I tried to participate in this thread and was harassed with 10’s of posts from MM so that few people would even want to engage in a substantive discussion with MMs troll posts just drowning out everything else.

            2. MM, must you really harass people that don’t agree with your position? Is that really necessary. If you don’t want to engage in a substantive argument, then just don’t post.

              Dennis: I would strongly, strongly, urge removal of MM or limiting his posts. He floods this board so that one cannot even read the comments without 10’s of MM’s harassment posts.

  13. Is that a joke? Does the form paragraph ACTUALLY say “[INSERT INVENTION HERE]”?

    It sounds a lot like the new rational underpinnings analysis for 103: “It would have been obvious to combine [INSERT FEATURE A OF REFERENCE A] with the [INSERT FEATURE B OF REFERENCE B] to arrive at [INSERT INVENTION HERE] to [INSERT PURPOSE OF INVENTION HERE].”

    1. No, that actually wasn’t even the form paragraph sent out by the ADCs to the patent corps. Here’s the real one, copied and pasted directly from the e-mail, and including the examiner footnotes:

      7.05.014 Rejection, 35 U.S.C. 101, Non-Statutory (Abstract Idea Implemented on a Generic Computer – Not Significantly More than the Abstract Idea Itself)

      the claimed invention is directed to non-statutory subject matter because the claim(s) as a whole, considering all claim elements both individually and in combination, do not amount to significantly more than an abstract idea. The claim(s) is/are directed to the abstract idea of [1]. The additional element(s) or combination of elements in the claim(s) other than the abstract idea per se amount(s) to no more than: [2]. Viewed as a whole, these additional claim element(s) do not provide meaningful limitation(s) to transform the abstract idea into a patent eligible application of the abstract idea such that the claim(s) amounts to significantly more than the abstract idea itself. Therefore, the claim(s) are rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.

      Examiner Note:
      1. This form paragraph should be preceded by form paragraph 7.05.
      2. This form paragraph should be used only for rejections of process and product (including, for example, apparatus, system, and computer readable medium) claims having an abstract idea limited solely by mere instructions to implement the idea on a computer, or by recitation of generic computer structure that serves to perform generic computer functions that are well-understood, routine, and conventional activities previously known to the industry. For claims directed to abstract ideas that are not computer implemented, use Form Paragraph 7.05.01.
      3. In bracket 1, briefly identify the abstract idea. Examples of abstract ideas are: (i) a fundamental economic practice, (ii) a method of organizing human activities, (iii) an idea of itself, or (iv) a mathematical relationship or formula. For instance, in Alice Corp. the court found that “intermediated settlement” was a fundamental economic practice, which is an abstract idea.
      4. In bracket 2, select the following example(s) that correspond(s) to the additional claim elements: (i) mere instructions to implement the idea on a computer, and/or (ii) recitation of generic computer structure that serves to perform generic computer functions that are well-understood, routine, and conventional activities previously known to the pertinent industry.

  14. I’ll just note again that this gambit of identifying some desirable information processing invention in generic terms and then implicitly suggesting that this information processing invention is ineligible (oh no!) is doomed to failure.

    There’s two reasons for this: (1) claims directed to information-processing inventions are still perfectly eligible when the claims provide sufficient structural (not functional) detail to distinguish the invention from the prior art based on those structural terms; and (2) just because some generically claimed information processing is ineligible doesn’t mean that nobody will program a computer to perform the recited generic information processing. In fact, the opposite is true. When fewer patents on generic information processing functionalties are granted, that functionality will become far more easy to implement. Why? Because people with the skill to implement information processing functionalities on a computer will be able to do so without fear of infringing a dozen different patents using a thousand different words to describe that functionality.

    I’d be interested in hearing from reasonable people who understand the issues and who aren’t deeply invested in turning the clock back to the pre-Bilski era about any proposed fall-back positions for patenting software. What would still “work” for them which might also satisfy those of us concerned about the creation of a class of patent attorneys who sit around and “innovate” ways to sue anybody who uses a computer and is likely to settle?

  15. …claims fail to recite any improvements to another technology or technical field,…

    Since when did “software” cease to be part of a “technical field”? If the software is an improvement in a technical field it would appear to not be abstract based on the explicit language of Alice.

    1. Since when did “software” cease to be part of a “technical field”?

      I believe the passage refers to claims that recite, in ge neric terms (“receiving”, “storing”, “determining” etc) “computerized” information processing tasks or machines that process information that would otherwise be processed by people who are not practicing the “useful arts”, e.g., attorneys, bankers, poets, accountants, insurance adjusters, gamblers, etc.

      1. I can live with that interpretation, but I am 100% sure that the 101 eligibility test being applied by the USPTO is not that narrowly tailored. If so, there wouldn’t be over 100+ comments on this thread.

  16. What about something like word processing software? Ignore for the moment that these have been around for decades now and assume you are the first inventor of such software. Is it an abstract idea to take what for millenia has been done with pen or pencil and paper, or more recently with a typewriter, and automate it so that it can be done using a general purpose programmable computer? Most of us would assume that this is very useful and precisely what the patent laws are designed to promote. Yet without a clear definition of “abstract”, since the software doesn’t improve the computer itself or relate to something very concrete (like control of rubber curing apparatus), it might not qualify as eligible subject matter under the reasoning of Alice.

    Any thoughts?

    1. Well, what about something even like being a justice on the SCOTUS. According to their reasoning a machine that listens, read, and generates decisions is not patent eligible.

      So, a machine that can do the one thing that we can do that we pride ourselves on use to separate us from the animals is not patent eligible.

      I think that tells you how much sense this policy makes.

    2. Well, what about something even like being a justice on the SCOTUS. According to their reasoning a machine that listens, read, and gen erates decisions is not patent eligible.

      So, a machine that can do the one thing that we can do that we pride ourselves on use to separate us from the animals is not patent eligible.

      I think that tells you how much sense this policy makes.

      1. Yeah right. Except copyright doesn’t cover the functional aspects of the invention. Except that goes against all of patent law to encourage the disclosure.

        I will say it one more time: Google wants this so that they can stop sharing how they do things and force employees to sign draconian employment contracts. In the mid-1980’s that is how it was.

        1. “Google wants this so that they can stop sharing how they do things and force employees to sign draconian employment contracts. In the mid-1980′s that is how it was.”

          I believe California recently banned employee non-compete agreements, with other states following to lesser extents, although that is admittedly different (albeit related/co-mingled) to the matter of confidentiality/NDAs.

          1. Interesting. I’ll have to look that up. I don’t believe it frankly in terms of technology areas.

      2. Your comment brings up one of the great lies that is being told in the narrative of Google. The information processing inventions are hard. They are very, very, very hard. There are probably more people with genius IQ working on information processing methods than doing anything else in the world. And, their progress has not been fast.

        The reality is that patents made it so that companies were allowed employees to share. We are seeing the industry already figure out that patents are going to burnt down and they are starting to stop allowing sharing. They are starting to get everything proprietary.

        This is the kind of thing that in 10 years when we are no longer in the lead in software it will dawn on us that we made a big mistake.

          1. I’ve been in the software industry for over 20 years. I have never, ever, never once seen a dev team or anyone else look at a patent rather than a product as any kind of reference.

            And just because its hard does not means it deserves a monopoly. Writing hit screenplays is hard too.

            As to the inability to protect functional aspects of copyrighted software; that’s for a court to decide when too close is too close.

            When the function and the expression are inseparable, to say one is patentable and other not is inherently arbitrary and can never be anything but….

            1. “When the function and the expression are inseparable, to say one is patentable and other not is inherently arbitrary…”

              Actually, copyright law says that if an idea and its expression cannot be “conceptually separated,” then it’s not copyrighted. This is why a mannequin can’t be copyrighted, for example, because it’s artistic (copyrightable) aspect is integrated with its display “function” in a non-severable way.

              This is why copyright is rather weak when it comes to software, thought still worth something – especially for graphical interfaces that have some clearly aesthetic aspects. Precise wording may get a “thin” copyright on some other aspects, too, but that’s not too tough to get around.

            2. Martin I was in software for a long time too. I have many years of academic work in computer science.

              You may want to consider the world without patents. Back before patents for software what many software companies did is they kept everything secret. They also pushed draconian employment contracts. Now, developers can publish articles in journals about what they are doing and discuss it in on-line forums. Few people read patents, but the fact that the patent discloses the invention means that the company allows the employees to openingly discuss the product and inventions.

              Not only that, but consider what would have happened to Motorolla without patents. They would have been essentially worthless. That means that all those researchers may not be hired next time. The management may just decide to copy and not create. I was a product manager at a large company that developed consumer electronics.

              So, patent are complicated. At some level they are a pain as they prevent people from just doing what they want to do. But, at other levels they give a square deal to employees and force management to innovate rather than take from others.

            3. I’ve been in the software industry for over 20 years. I have never, ever, never once seen a dev team or anyone else look at a patent rather than a product as any kind of reference.
              I’m sure you’ve had engineers go to conferences in which advanced software techniques were presented — you would be surprised (I’m sure) to know that many of these techniques were patented.

              The patent system enables an inventor to publicly disclose (via the patent application itself or other means) their invention with some expectation that their technology would not be misappropriated.

              Just because your engineers didn’t read patents doesn’t mean that the patent system didn’t help them.

              As to the inability to protect functional aspects of copyrighted software; that’s for a court to decide when too close is too close
              That’s not an answer.

              1. Oh no, you seem maybe a shade more sane than many of your counterparts so I’ll ask you about this. Let’s say I believe you that granting patents for software “allows” people to go out and then publish their work, for instance at conferences and in journals etc.

                What I’m curious about is, considering what you have said as being true, and while also considering that the patent grant is usually for some function(ality), how would the people that made the software introduce the software to the world, at all, without disclosing the functionality anyway?

                That is to say, of what relevance would the software be to the world if it were never put into use or otherwise disclosed?

                I just don’t see what skin comes off our backs when/if we let people keep their software a secrit. Especially considering that they’re just going to disclose it in terms of x function anyway.

                I understand the “loss” to the world in the useful arts when something goes undisclosed, but I just don’t see it in the software functionality field. Let them keep their secrit software functions. Anytime someone takes a notion to do that functionality with a computer, it is supposedly already enabled anyway. So what is the point of us granting the patent to encourage the dissemination of the functionality of the software?

    3. Mark: Is it an abstract idea to take what for millenia has been done with pen or pencil and paper, or more recently with a typewriter, and automate it so that it can be done using a general purpose programmable computer?

      It’s certainly an abstract idea until someone actually does it. And when they actually do it, they can claim what they actually did to make it happen instead of claiming the abstraction.

      If I find a chemical that when taken in pill form reverses baldness completely, I don’t get a claim to “a pill that reverses baldness completely.” That’s true even where I have the pill in my hand.

      Why on earth should anyone be entitled to a claim to “automating information processing task X” on any (any!) ge neric computer unless they provide the code that achieves that functionality for at least a reasonable range of specific computer operating systems? Anybody can describe a “new” task to be “automated.” Why would we hand out 20 years of exclusive rights for such minimal contributions.

      Hypotheticals like yours miss the point because they seem to suggest that if these prohibitions on granting patents to abstractions had been rigorously applied earlier that somehow we wouldn’t have word processing programs today. I think most people would agree that’s nonsense. Would we have a few less patent-fed billionaries? Maybe. Please let me know why I or anyone else should care about that.

      1. “If I find a chemical that when taken in pill form reverses baldness completely, I don’t get a claim to “a pill that reverses baldness completely.” That’s true even where I have the pill in my hand.”

        Sure, because science fiction stories about pills that cure baldness have existed for decades upon decades… And while they’re only prior art for what they enabled, your claim doesn’t go any farther than “there’s a pill that reverses baldness,” so it’s invalid under 102… No need to try to stretch in a 101 “I can’t define abstract but this is abstract and I don’t need to explain why” justification.

        Look at Alice and the opinion… Routine method, conventional steps, etc. That’s a 102 or 103 justification, not a 101 conclusion. At this point, “abstract” means “obvious, but I lack the evidence to prove it”.

    4. My only disagreement is with your asserting that the software wouldn’t improve the computer itself.

      Of course the word processor improved the computer. Without it, the computer couldn’t process words. With the software the computer can process words. That’s an improvement.

      1. I agree Les. The only problem is that they are looking for improvements to the hardware of the computer in the way it functions. Of course, there is a contradiction there because the word processing program defines hardware. But this lot doesn’t care about logic and reason. They commit violence against are legal system. They are paid thugs.

        And, I will bet that Lee walks away with $10 million after this and CJ Smith walks away with millions too. What happened in finance?

        1. Were such arguments made in Alice? One might have had to have been clairvoyant to make them. Was there a requirement under 101 to improve the computer itself before Alice?

          The Alice decision is so incoherent, I don’t think we can assume the Court applied its reasoning to the facts at hand or considered whether of not shadow account establishment and maintenance constituted and improvement to a computer. The Court spent no time on shadow accounts. The court impermissible distilled the invention down to a gist, and then found the gist old and therefore abstract.

          So, with logic like that, why are we pretending the king is wearing clothes?

      2. I’d agree with you that with the software the computer can process words and without the software it can’t. But the same was true in Alice: with the software the computer could carry out intermediated settlement of financial obligations, and with the software it couldn’t. That kind of reasoning didn’t save Alice’s patent. I know the courts have difficulty with business methods and software automation of such methods, but the decisions and the reasoning they offer go well beyond that area.

        In the case of word processing software, one might argue from a certain point of view is that it really does it is record thoughts and the dressing up of a claim with well-understood and routine computer functions that enable such recording of thoughts to take place would not – in the court’s reasoning – change the abstact idea into a patent-eligible invention.

      3. Les, the new use of an old computer is patentable as a process by statute.

        However, there is nothing in word processing software that changes the old computer into a new computer. Software never does that.

        1. I understand that is your position Ned. I simply disagree with you.

          I can design a temperature controller using a microprocessor, some I/O devices and appropriate software. I can put that in a box with some screw terminals for the user to connect his heater and thermostat to and maybe a display to show the temperature and the set point.

          This is not a general purpose computer. I think even you would agree that is a specific purpose machine. Lets call it a first machine.

          Someone else can design a pressure controller using the microprocessor some I/O and appropriate software. It too can be put in a box with some screw terminals, but for the user to connect his pump or outlet valve and a pressure control dial to and maybe a display to show the pressure and set point.

          This is not a general purpose computer. I think even you would agree that is a specific purpose machine. Lets call it a second machine.

          Assuming there is something new and not obvious about the way the first device controls the temperature, the first machine would be patent eligible wouldn’t it? What if I implemented my control algorithm with op-amps, capacitors and inductors?

          Assuming there is something new and not obvious about the way the second device controls the pressure, the second machine would be patent eligible wouldn’t it? What if they implemented their control algorithm with op-amps, capacitors and inductors?

          Besides the stickers that label the display and the screw terminals, the only difference between the machines is the software, or particular configuration of op-amps, capacitors and inductors. Yet they are both patent eligible under 101, are they not?

          1. Les, in the example, the computer is not new, but the example temperature or pressure controllers are new machines.

            I hope you can see the distinction.

            1. From a hardware standpoint they are identical Ned. Moreover they are comprised of old component purchased off the shelf. All that’s different is the software loaded into ROM.

      4. A word processor is not a singular invention, so its a useless example. The computer itself is a word processor because it runs ascii text into assembly and then to the memory and CPU. The addition of keyboards, a file system, and software routines to form an application are all different contributions to the result of a word processor. Some are patent eligible, some should not be.

        Since we can’t prove a negative, how many tech jobs and new software apps don’t we have because of the incredible, empirical wasted resources of past software patent litigation? Lots and lots would be my guess…

        1. I assume by “useless” you mean persuasive or hard to argue with.

          If it helps, select a particular feature of a word processor that you recognize as being novel at some point in time. Say selectable fonts or font size or spell checking or reformatting from page to column width already entered text or inclusion of images.

          Or, consider a broad claim to text entry with font selection and dependent claims that add additional feature…

          Its a perfectly fine example.

          But if you don’t like it, pick another, say : voice to text.

    5. As a practice tip: read up on EPO eligibility. There are many years of articles and tricks.

    6. Mark: Is it an abstract idea to take what for millenia has been done with pen or pencil and paper, or more recently with a typewriter, and automate it so that it can be done using a ge neral purpose programmable computer?

      It’s certainly an abstract idea until someone actually does it. And when they actually do it, they can claim what they actually did to make it happen instead of claiming the abstraction.

      If I find a chemical that when taken in pill form reverses baldness completely, I don’t get a claim to “a pill that reverses baldness completely.” That’s true even where I have the pill in my hand.

      Why on earth should anyone be entitled to a claim to “automating information processing task X” on any (any!) ge neric computer unless they provide the code that achieves that functionality for at least a reasonable range of specific computer operating systems? Anybody can describe a “new” task to be “automated.” Why would we hand out 20 years of exclusive rights for such minimal contributions.

      Hypotheticals like yours miss the point because they seem to suggest that if these prohibitions on granting patents to abstractions had been rigorously applied earlier that somehow we wouldn’t have word processing programs today. I think most people would agree that’s nonsense. Would we have a few less patent-fed billionaries? Maybe. Please let me know why I or anyone else should care about that.

    7. On a word processing, the apparatus all being old, one should claim a process.

      User inputs, processing, display outputs … what is non statutory about such a claim? The computer hardware itself is not changed, but the use of the computer has been improved. That, by statute, is eligible as a process.

      I think the dividing line has to be where the use of the computer itself is not new.

      1. What Ned? You think a word processing program is statutory?

        Is this the Ned? What???

      2. >>where the use of the computer itself is not new

        That is almost always the case, Ned. It just depends on how fine you are willing to consider new.

    8. Is it an abstract idea to take what for millenia has been done with pen or pencil and paper, or more recently with a typewriter, and automate it so that it can be done using a general purpose programmable computer? Most of us would assume that this is very useful and precisely what the patent laws are designed to promote.

      This is not an either-or situation. If you create Microsoft Word, and you describe Microsoft Word particularly in a claim (i.e. how your software does things), you’ve got the application of an idea. If your claim is just going to be “a processor configured to: receive inputs; display characters on the display corresponding to inputs” (i.e. ANY word processor) now your claim reads on a scope coextensive with “apply pen and paper writing to computers” and it’s an invalid abstract idea.

      It’s actually not a difficult concept when you ignore all the blowhardness of the side that confuses a scope that they want because it’s commerically valuable with the scope that the law allows you to have. The fact that the proper scope of protection for your invention would still allow others to, you know, compete with you by writing their own completely different software is not patent law’s problem. The fact that computers are such a wonderful machine that they make the writing of code, and thus the competition, easier (and therefore decrease the value of your patent) is similarly not of consequence.

      Morse invented a telegraph machine. They gave him a telegraph machine. Which is good, because he wanted a scope that covered the television, the phone text and the internet computer.

      1. Morse invented a telegraph machine. They gave him a telegraph machine. Which is good, because he wanted a scope that covered the television, the phone text and the internet computer.
        I’m sure one of the claims of the Wright brothers would have covered the space shuttle. What is the big deal?

  17. Greetings Dennis

    This is just the most recent “exploit” the opinion effort by the PTO in a transparent attempt to reduce backlog in these areas. They think that by indiscriminately rejecting every case based on Alice, some % of the applicants will give up, and voila! another resolved application. The PTO never met an opinion that it didn’t try to manipulate into more fees and reduced workload.

    However as with their examination which usually falls short, so does this logic. The bulk of the applicants will dig in their heels, and fight back, which means that we will now have an entirely new “backlog” of bogus 101 rejections jamming up the system. After the PTO realizes (I give it a year) that the random rejections are causing more work rather than less, they will miraculously issue a new set of guidelines in which they implicitly recognize the error of their ways and go back to business as normal.

    The PTAB, which is already overwhelmed with IPR cases (and as a result is unsurprisingly imposing higher standards to implement them) will now have a bundle of new cases to do under 101. They will soon, too, start to cave in the light of too much flak.

    In the end this is just one giant game where some clueless bureaucrat thinks they can game things by being clever with an incredibly trite opinion. Despite Kabbalic-like efforts to read mystic tea leaves, Alice adds nothing to jurisprudence, and little beyond saying “this is just like Bilski”

    I for one have no trouble with the bogus 101 rejections, because they are easy to overcome, and just make the prosecution record even stronger, because now I am at least innoculated against a bogus 101 attack in court. An infringer now will be faced with the task of trying to finesse another 101 argument after the PTO has already blessed my case. Good luck with that!

    1. Interested to hear the language you believe is going to overcome these rejections; I’ve found using mere logical reasoning with Examiners is ineffectual in the face of 101 rejections handed down via memo from their administrative masters.

    2. Good strategy as long as these can be overcome. I think you may be forgetting that the board has been Googlized too.

      1. I also don’t think that his comment makes sense in view of the radical changes that have occurred at the Board. I remember back around 2007 when some nonsense went on at the PTO. The Board would have none of it so it ended.

        Now, we have a whole new board that has been hired based on another employee like Lee. Rader called them the death squads.

        I don’t think people have figured out how clever Obama is yet. He told us all what he was going to do. He said if Congress wasn’t going to help him that he was going to fix things by himself in his own way. His way has been to get people in the Fed. Cir. and PTO that are —by and large–ignorant of patent law and willing to take on the task of ending much of patents in exchange for their employment.

        That is the real world folks.

        1. I speak of CJ Smith. Ignore the reality of the situation at your own peril. This one is not going to end easily. This one is going to be very ugly. My guess is like 20,000 new appeals. Many people are going to want to park applications until the management can be changed and may press for the dissolution of the Fed. Cir. to get rid of the judges Obama appointed.

          1. By the way, anyone watch Mosquito Coast? The protagonist left the U.S.A. not because he didn’t like it, but because he couldn’t stand to watch it be destroyed. It hurt too much.

            Guess why Rader left?

          2. My guess is like 20,000 new appeals. Many people are going to want to park applications until the management can be changed

            Talk about “ignoring the reality of the situation.”

              1. I’m talking about your fantasy that somehow a change in the administration is going to make all these issues go away.

                That’s never going to happen.

                These issues are here to stay and there are more changes coming, friend.

              2. Well, MM, don’t let it go to your head. These changes are coming from big business and $$$$$$$$$$$$$$.

                At least be a decent b@boon and admit that.

              3. not been attent…..

                You mean like when Lee came to a business meeting at the Oval Office and was approved by Google and other business leaders, and then Obama appointed her Shadow Leader. And, as I said, I will bet she gets $10 million for this performance.

                Yes I have been paying attention.

        2. I don’t think people have figured out how clever Obama is yet.

          Pretty sure that executive power wasn’t invented or even perfected by Obama. What was the name of that other guy who was President before Obama who really worked hard to expand and use the power of the executive and did so far more than Obama is doing now? Chimpy McShrub or something? You don’t hear much from him anymore for some mysterious reason.

    3. JNG: This is just the most recent “exploit” the opinion effort by the PTO in a transparent attempt to reduce backlog in these areas.

      It’s certainly “transparent” to most people that one of the major causes of the PTO’s backlog is the existence of massive amounts of j nky “computer-implemented” claims that they have been inundated with as a result of earlier, short-sighted and deeply misguided decisions suggestions that otherwise ineligible information processing methods could be rendered eligible merely by tacking on “a computer” to the claim.

      Of course the backlog will shrink if the PTO aggressively and fairly applies these recent decisions to pending applications. That’s a feature not a bug. There’s plenty of innovators out there who would enjoy the better service provided by a PTO that isn’t swamped with j nk, not to mention the general public who is uniformly disgusted with that j nk and the people who file it.

      The PTO never met an opinion that it didn’t try to manipulate into more fees and reduced workload.

      What on earth is the PTO supposed to do with a series of Supreme Court and subsequent Federal Circuit opinions that leaves little doubt as to the direction the wind is blowing? Is the PTO supposed to assume those cases are limited only to the precise fact patterns and inventions that were at issue in the opinions? That would be ridiculous.

      The bulk of the applicants will dig in their heels

      That would be a very silly thing to do unless, I suppose, you already have a lot of money. That, of course, begs the question of why anyone should be terribly concerned about the well-being of these “heel-diggers.” Perhaps these “heel-diggers” believe they are really, really important people or something. Like without their awesome patents nobody will try to make our online experience more enjoyable or something. Does anybody believe that?

      After the PTO realizes (I give it a year) that the random rejections are causing more work rather than less, they will miraculously issue a new set of guidelines in which they implicitly recognize the error of their ways and go back to business as normal.

      I appreciate the concrete prediction. I’ve marked my calendar for July 25, 2015 and I’m looking forward already to seeing what subject matter eligibility looks like then. I’m guessing it’ll look pretty much the same as it does now for your “heel-diggers” or significantly worse.

      They will soon, too, start to cave in the light of too much flak.

      You’re going to whine even louder than you have been for the past several years? That hardly seems possible.

      Alice adds nothing to jurisprudence, and little beyond saying “this is just like Bilski”

      I hope you aren’t advising any clients with that analysis.

      I for one have no trouble with the bogus 101 rejections, because they are easy to overcome

      Bogus rejections under any statute are pretty easy to overcome. Nothing to brag about.

      just make the prosecution record even stronger, because now I am at least innoculated against a bogus 101 attack in court.

      You’ll still have to deal with the non-bogus 101 rejections, of course. Maybe you should share some of your claims with everyone and we can discuss whether the 101 rejections are bogus or non-bogus. Then you could file a re-exam and get further inoculated. Wouldn’t that be awesome?

    4. JNG: This is just the most recent “exploit” the opinion effort by the PTO in a transparent attempt to reduce backlog in these areas.

      It’s certainly “transparent” to most people that one of the major causes of the PTO’s backlog is the existence of massive amounts of j nky “computer-implemented” claims that they have been inundated with as a result of earlier, short-sighted and deeply misguided decisions suggestions that otherwise ineligible information processing methods could be rendered eligible merely by tacking on “a computer” to the claim.

      Of course the backlog will shrink if the PTO aggressively and fairly applies these recent decisions to pending applications. That’s a feature not a bug. There’s plenty of innovators out there who would enjoy the better service provided by a PTO that isn’t swamped with j nk, not to mention the ge neral public who is uniformly disgusted with that j nk and the people who file it.

      The PTO never met an opinion that it didn’t try to manipulate into more fees and reduced workload.

      What on earth is the PTO supposed to do with a series of Supreme Court and subsequent Federal Circuit opinions that leaves little doubt as to the direction the wind is blowing? Is the PTO supposed to assume those cases are limited only to the precise fact patterns and inventions that were at issue in the opinions? That would be ridiculous.

      The bulk of the applicants will dig in their heels

      That would be a very silly thing to do unless, I suppose, you already have a lot of money. That, of course, begs the question of why anyone should be terribly concerned about the well-being of these “heel-diggers.” Perhaps these “heel-diggers” believe they are really, really important people or something. Like without their awesome patents nobody will try to make our online experience more enjoyable or something. Does anybody believe that?

      After the PTO realizes (I give it a year) that the random rejections are causing more work rather than less, they will miraculously issue a new set of guidelines in which they implicitly recognize the error of their ways and go back to business as normal.

      I appreciate the concrete prediction. I’ve marked my calendar for July 25, 2015 and I’m looking forward already to seeing what subject matter eligibility looks like then. I’m guessing it’ll look pretty much the same as it does now for your “heel-diggers” or significantly worse.

      They will soon, too, start to cave in the light of too much flak.

      Seems to me that the PTO may be growing tired of “caving” to a certain class of customers who are incapble of being satisfied short of a rubber stamp.

      Alice adds nothing to jurisprudence, and little beyond saying “this is just like Bilski”

      I hope you aren’t advising any clients with that analysis.

      I for one have no trouble with the bogus 101 rejections, because they are easy to overcome

      Bogus rejections under any statute are pretty easy to overcome. Nothing to brag about.

      just make the prosecution record even stronger, because now I am at least innoculated against a bogus 101 attack in court.

      You’ll still have to deal with the non-bogus 101 rejections, of course. Maybe you should share some of your claims with everyone and we can discuss whether the 101 rejections are bogus or non-bogus. Then you could file a re-exam and get further inoculated. Wouldn’t that be awesome?

    5. However as with their examination which usually falls short, so does this logic. The bulk of the applicants will dig in their heels, and fight back, which means that we will now have an entirely new “backlog” of bogus 101 rejections jamming up the system.
      You nailed it here. I haven’t seen a court decision that the USPTO hasn’t tried to interpret in a manner least favorable to applicants. The USPTO gives the Examiners “guidelines,” which most Examiners treat as marching orders to issue certain types of rejections. Because the attorneys know better (i.e., most of them actually read the case and understand the law well enough to understand why the Examiner’s reasoning is off base), both Examiners and attorneys alike spend a lot of wasted time on issues because of the USPTO misguided belief that certain types of rejections will reduce their backlog. On the contrary, by muddying the waters with bogus rejections, they cause increased backlog.

      1. That’s two guys that are going to “dig in their heels”!

        Super impressive!

        Keep digging, gentlemen. The rest of us aren’t going to go anywhere, you know, and these issues aren’t ever going to go away. But you will. That’s guaranteed.

        1. Keep digging, gentlemen. The rest of us aren’t going to go anywhere, you know, and these issues aren’t ever going to go away. But you will. That’s guaranteed.
          I admit, I’ll go away — hopefully sooner rather than later. However, that is because I have been able to make my clients lots of $ on this technology. I have already, but I still need to make them a bit more.

          As I have written before, this debate (like most debates) is not about some underlying philosophy of whether software (or something similar) should be patentable — at least not to 95% of the people. Instead, this debate is being waged by those who see patents as a business advantage and those who see patents as a business disadvantage. Consistent with the principle that most people act (most of the time) in their own best interest (corporations are people too according to SCOTUS), there will be a never-ending debate (mostly orchestrated by business) over this topic.

          This debate is all about the $.

          1. “As I have written before, this debate (like most debates) is not about some underlying philosophy of whether software (or something similar) should be patentable — at least not to 95% of the people”

            Whenever I talk to the “95%” of people that is precisely what it seems to be about. It’s more like 99.9% of people though really. Unless when you say “people” you mean “self-interested people looking to file a software application”. Of course, if that was what you meant then you’re likely right.

          2. This debate is all about the $.

            I’m sure it seems that way to you.

            But it really isn’t true for the ordinary people I speak to regularly about this issue.

            It’s also not true for all the ordinary people who are disturbed by patents on “sideways swinging” or “entertaining cats with a laser pen” or “clicking a button on a computer screen to order something.”

            1. But it really isn’t true for the ordinary people I speak to regularly about this issue.
              LMAO — you talk to ordinary people about this issue? God — you must be the life of the party?

              MM to hot chick at party: “let me tell you about how SCOTUS has recently expanded the judicial exception to abstract ideas with regard to 35 USC 101.”
              Hot chick text to friends: “HELP!! Save me!!”
              MM to himself after party: [why can’t I get a date? Oh well, at least I have patently-O]

  18. Dennis: There is no standard definition for “abstract” and so it is difficult to identify abstract ideas from non-abstract ideas.

    I beg to differ, Dennis. Part of the difficulty arises from the language that you use in this context, particularly the use of the term “idea”. That is because all “ideas” are “abstract” until they are carried out or reduced to physical form. Patent law recognizes constructive reduction to practice, of course, but “ideas” or “concepts” or “fantasies” are not an eligible class of statutory subject matter.

    The other part of “the difficulty” people have is that they somehow believed that they were so very, very important that they would be allowed to play silly word games and protect abstractions with patents forever and ever and ever because … Amish people or something. Of course, most of us who are not deeply invested in the lowest forms of “innovation” were expecting and encouraging the return of some sanity to our broken patent system.

    The definition of abstract can be found in the dictionary: “existing in thought or as an idea but not having a physical or concrete existence.”

    The courts have indicated (for many, many years in some cases) that the following categories of subject matter are “abstract” (and you’ll note that they fit within this standard definition):

    mental processes (i.e., thinking about stuff)

    information/data itself

    mathematics and mathematical calculations

    legal/contractual relationships/statuses

    correlations between events/phenomenon (whether natural or unnatural)

    Is it difficult to identify these abstractions? I don’t think so. If anyone finds identifying these abstractions difficult, I’d like to understand where the difficulty lies exactly.

    It’s just a baby step from the recognition of these abstractions to the application of Prometheus and Alice to claims containing, in addition to the abstractions, other limitations which are not themselves abstract. The question that must be asked then is whether those non-abstract limitations are sufficient to ensure that the abstraction itself isn’t being protected in some non-universal context (as it would be if those additional limitations weren’t present). In ge neral, the sure-fire solution is going to be to recite novel structure in objective structural terms, or recite new steps that result in a physical transformation of matter. Thoughtful attorneys will immediately recognize that if you have these limitations in your claim, the recitation of abstractions will be superfluous.

    None of this is terribly difficult, in my opinion. In a great many (most?) cases it’s incredibly easy. Was Prometheus a difficult case (that case involved an abstraction which was either a correlation or a mental process — doesn’t really matter which)? I never thought so. Neither did many commenters, including most memorably Professor Rantanen.

    What people seem to have the most difficult with is change. But this change has been coming for a long time. It’s necessary to prevent the patent system from turning into a cesspool. After all, it’s beneath trivial to “innovate” a new “abstraction.” Each of us does so routinely (unless we’re in a coma or sleeping) because each of us lead unique lives. Again: very easy stuff to understand.

      1. Thank you for this thoughtful comment. Hopefully this thread will be a good one.
        Those pictures must be really good.

    1. MM: “information/data itself”

      This is not abstract. It’s simply not one of the enumerated statutory classes. See Digitech.

      1. This is not abstract. It’s simply not one of the enumerated statutory classes. See Digitech.

        It seems abstract by definition to me.

        “Abstractions” themselves, of course, are not one of the enumerated statutory classes. Nor for that matter are “natural laws”.

        Regardless, the analysis is the same for most of the so-called “judicial exceptions” and the many intangible/transitory “things” not recited in the statute.

        1. MM, none of the examples you gave are statutory.

          The idea that a piece of rubber may be attached to a pencil tip is abstract because it is too broad. But if defined and limited, the resulting manufacture would be statutory.

          The idea that if a measurement of metabolites is above X and below Y, that one must adjust dosage is simply information. Using it to actually adjust dosage may be eligible.

          The calculus that if one has enough of X, and less of Y, that financial risk is reduced is another example of information. But here, it is hard to even conceive of a patentable application.

          If you haven’t read Hotel Security, you should. This is the case Rich “overturned” in State Street Bank, and is the case that Stevens said in his dissent was the right approach.

          The reasoning of this case is now, arguably, the law post Alice.

          Sanity has been restored to the patent system.

    2. Abstractness is only a reason to deny patentablity for the reason that case law consistently excludes “abstract ideas”. But basically all inventions are a sort of ideas, and all ideas are abstract (they still have to be realized).

      In Europe, business methods are exluded under the “mental steps doctrine”. One may argue that this doctrine is just as vague, because all inventions require “mental steps” in their execution.

      But in 1969 the CCPA drew the proper boundary: mental steps are only excluded if they can ONLY be executed by human judgement.

      Business methods typically require human judgement. So they are not patentable.

      This is actually fully in concert with the statute, since it requires a description that can be executed by *any* person skilled in the art (PHOSITA) (§ 112). Regardless how smart the PHOSITA is (in other words, what the ‘O’ for “ordinary” means), some activity is inherently uncertain. Like research. And business.

      Only the “output” of research is patentable. Not the “input”.

      Note that the above distinction is independent of the “state of the art”. Subject-matter restrictions ougt to be independent of the state of the art. It is an absolute criterion, as opposed to novelty and non-obviousness.

      1. Sorry, forgot to mention the case: 56 CCPA 1381, 415 F.2d 1393, 162 USPQ 541 (In re Prater and Wei II).

  19. Dennis,

    It’s worse than you have reported. Several examiners have called us saying that they are pulling our cases from issuance and rejecting under Alice. These examiners have no apparent relation to the cases–they aren’t the examiner assigned to the case or the SPE. Some examiners have told us of an internal 101 panel that is reviewing cases under Alice, so the ones calling us may be from the panel, but I’m not sure.

    1. Several examiners have called us saying that they are pulling our cases from issuance and rejecting under Alice.

      That’s awesome.

    2. “It’s worse than you have reported. Several examiners have called us saying that they are pulling our cases from issuance and rejecting under Alice.”

      HAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHA

  20. Another technology?

    I thought patents were limited to a single invention. Now there has to be two inventions and they have to be in different technologies?

    This is insanity.

    Who will stop it?

    1. Not Obama. He is furiously raising money now. I am sure the next Fed. Cir. judge should bring in $10 million. We are going to get somebody who adores Lemley (or more likely never head of Lemley or patent law prior to being appointed.)

    2. Les, haven’t you been listening.

      The PTO position was made clear in its brief and oral argument in the Supreme Court.

      Their analysis the same as the printed matter analysis that had it origin in Hotel Security. If novel subject matter is nonstatutory, and the statutory subject matter old, the claim is unpatentable unless that nonstatutory subject matter is applied to improve something statutory.

      Not only is this doctrine one of vintage, it is eminently logical and easily applied.

      All claims that include a programmed computer (or its ilk) as a claim element are suspect. I doubt many will survive the PTO and all that are issued are similarly suspect. To the extent the claims do improve computers or larger subject matter functionally, there should be no problem.

        1. Dennis, “Under this construct is the result that no-patentable-weight can be given to the abstract idea portion of an invention?”

          Exactly.

          May I quote from Hotel Security Checking v. Lorraine , 160 F. 467 (2d Cir. 1908):

          The principal defense is lack of novelty and invention. Section 4886 of the Revised Statutes (U. S. Comp. St. 1901, p. 3382) provides, under certain conditions, that “any person who has invented or discovered any new and useful art, machine, manufacture or composition of matter” may obtain a patent therefor. It is manifest that the subject-matter of the claims is not a machine, manufacture or composition of matter. If within the language of the statute at all, it must be as a “new and useful art.” One of the definitions given by Webster of the word “art” is as follows: “The employment of means to accomplish some desired end; the adaptation of things in the natural world to the uses of life; the application of knowledge or power to practical purposes.” In the sense of the patent law, an art is not a mere abstraction. A system of transacting business disconnected from the means for carrying out the system is not, within the most liberal interpretation of- the term, an art. Advice is not patentable. As this court said in Fowler v. City of New York, 121 Fed. 747, 58 C. C. A. 113:

          “No mere abstraction, no idea, however brilliant, can be the subject of a patent irrespective of the means designed to give it effect.”

          It cannot be maintained that the physical means described by Hicks,
          -the sheet and the slips,-apart from the manner of their use, present
          any new and useful feature. A blank sheet of paper ruled vertically
          and numbered at the top cannot be the subject of a patent, and, if used in carrying out a method, it can impart no more novelty thereto, than the pen and ink which are also used. In other words, if the “art”
          described in the specification be old, the claims cannot be upheld because of novelty in the appliances used in carrying it out,-for the reason that there is no novelty.

          Id. , at 469.

          1. A system of transacting business disconnected from the means for carrying out the system is not, within the most liberal interpretation of- the term, an art.

            But, Ned, the above statement does not apply to a computer transforming information.

            1. Night, since the computer is old, the new use of an old computer is patentable as a process. As such, the process itself must do something physical.

              In ever example you have given us, driving a car, performing an operation, or the like, there are physical actions being taken. I see no problem with such claims defining patentable processes.

              But the computers themselves are old and cannot impart eligibility simple because they are present in the claim.

          2. In fact Ned, the opposite is true. The computer has transformed the way business is conducted in almost every way.

            So, again, just your arguments are based on NONSENSE!!!!!!!

            You and the other appear to have no shame.

            1. The computer has transformed the way business is conducted in almost every way.

              We’re talking about specific patent claims that cover specific functionalities.

              We’re not talking about “the computer.” If the inventor of the first “computer” of the sort that you’re referring to wanted a patent on this “computer”, all he/she needed to do was describe that machine using objective structural terms that distinguish the new machine from old machines. No eligibility problem there (let me know if you’re aware of any).

              If you invent a new information processing device and you describe that device in structural terms that distinguish that device from prior art structures, you’ll get your patent. Whats the problem?

              1. MM, your ignorance and lack of shame just blow my mind.

                The methods of conducting business are changed because now people can use the computer. That is the way all inventions work. It is not a mere speed-up. That is another lie that goes around. The way in which business is conducted has changed.

                Big picture: entire society works the way it does because of the computer.

            2. Seriously!!!!!!!!!!!!! You think business is conducted the same way now as it would be without computers? Just outrageous ignorant nonsense.

              And the methods are adapted for the computer so they are different than they would be without a computer. So, by our case law they are eligible.

              1. Nobody is arguing that the development of computing machines was not an important event with society-altering consequences.

                You think business is conducted the same way now as it would be without computers?

                No, I don’t think that.

                Just outrageous ignorant nonsense.

                It’s your strawman, not mine.

        2. Under this construct is the result that no-patentable-weight can be given to the abstract idea portion of an invention?

          You have to love how the statutes continually get ignored in this debate.

          35 USC 103:
          A patent for a claimed invention may not be obtained … if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious

          Did we forget about “the claimed invention as a whole“? Despite the “as a whole” language within 35 USC 103, what leads one to believe that some parts of the claimed invention may be ignored? Oh right — I forgot, we have certain members of the judiciary who treat statutory law as advisory.

          1. Did we forget about “the claimed invention as a whole“? Despite the “as a whole” language within 35 USC 103, what leads one to believe that some parts of the claimed invention may be ignored?

            For starters, we’re talking about 101 not 103.

            But even in 103, giving patentable weight to ineligible subject matter when all the eligible subject matter in the claim is old is not what the phrase “claims as a whole” was meant to ensure.

            We know this (at least in part) because the Federal Circuit has for many years ignored ineligible subject matter (e.g., instructions for using a kit or device) and found claims obvious as a result. That’s just one simple example, of course. There are many more.

            1. For starters, we’re talking about 101 not 103.
              No — being given patentable weight refers to 102/103.

              We know this (at least in part) because the Federal Circuit has for many years ignored ineligible subject matter
              I see you are dealing with another judicial exception — to be narrowly construed. You need to reacquaint yourself with In re Gulack and In re Lowry.

              1. “No — being given patentable weight refers to 102/103.”

                Maybe we should coin a new term for that which is under discussion: “eligible weight”.

      1. “unless that nonstatutory subject matter is applied to improve something statutory.”

        So then, if the alleged novel non-statutory subject matter is a computer implemented method to improve the computer so that it can take an audio input (old) and convert it to written text, that is a statutory invention as the computer is statutory and improved. Correct?

        1. Les, speech to text with the improvement being in the algorithm is certainly a good example of a patentable application.

          The PTO argued to the Supreme Court that this is what must be claimed, as in Diehr, in order for the claimed invention to pass muster under 101.

          1. You seem to be arguing both sides of the fence Ned.

            Now that we have established that an old computer combined with a new algorithm is patent eligible, Why isn’t Alice patent eligible under 101?

            1. Because, Les, what the Alice claims were doing was not physical enough. The claims reduced financial risk, but using old and generic hardware.

              Now if the utility of the computer were being improved, as in word processing software, or the Apple swipe-to-unlock patent, I see no problem with 101.

            2. Because, Les, what the Alice claims were doing was not physical enough. The claims reduced financial risk, but using old and gen eric hardware.

              Now if the utility of the computer were being improved, as in word processing software, or the Apple swipe-to-unlock patent, I see no problem with 101.

              1. Ned, at 422112 in this thread:

                “Because, Les, what the Alice claims were doing was not physical enough. The claims reduced financial risk, but using old and gen eric hardware.

                Now if the utility of the computer were being improved, as in word processing software, or the Apple swipe-to-unlock patent, I see no problem with 101.”

                Using a computer to process data is not patentable. It’s the opposite. It is trite. It is what computers do. So, clearly, that of itself isn’t enough to hack the claim through to issue.

                Specifying what data to process doesn’t advance your case. But inventing how to process data might.

  21. Dennis, the courts will never define abstract. But it is quite apparent the are equating abstract with nonstatutory. If subject matter is neither a machine, manufacture or composition, or process involving one of these in a functional sense, that subject matter is nonstatutory.

    When considering a process I think the best quotation in modern cases is that expressed in In re Comiskey, 499 F.3d 1365 ( Fed. Cir. 2007):

    “The abstract concept may have a practical application. The Supreme Court has reviewed process patents reciting algorithms or abstract concepts in claims directed to industrial processes. In that context, the Supreme Court has held that a claim reciting an algorithm or abstract idea can state statutory subject matter only if, as employed in the process, it is embodied in, operates on, transforms, or otherwise involves another class of statutory subject matter, i.e., a machine, manufacture, or composition of matter. 35 U.S.C. § 101. As the PTO notes, “[t]he Supreme Court has recognized only two instances in which such a method may qualify as a section 101 process: when the process `either [1] was tied to a particular apparatus’ or [2] operated to change materials to a `different state or thing.'” See PTO Supp. Br. 4 ”

    It is to be observed that the brief of the patent office in this case was written by Raymond T Chen, who is now a member of the Federal Circuit.

    1. Just a note here, that software is functional with a computer does not protect a claim where the novelty in the software functionality with the computer or other, larger, apparatus is non functional. A book with printing is a manufacture. A book with a new recipe is unpatentable because the recipe is information. The new information is non functional with respect to the book.

      The analysis of Hotel Security and for that matter Funk Bros. has now prevailed in Mayo and Alice. If what is new in the claim is nonstatutory, and if what is statutory in the claim is not new or not an invention (103), the claim as a whole is unpatentable.

      1. Just a note here that software is equivalent to firmware to hardware. So that software is equivalent to a machine.

        Just a note here that information conservation is the most important law of physics.

        Just a note here that the fact that Obama has stacked the courts and the PTO with Google stooges doesn’t make you right. You may win, but you aren’t right.

            1. The statement is often made, but the only case where the issue ever came up for a real decision is Alappat.

              There the claim was to a rasterizer of a graphics unit for a display.

              In that context, it made no difference whether the calculation were done in hardware or the equivalent programmed computer.

              But guys like Rader like the quote out of context so as to make any programmed computer statutory.

              Well, that notion is no longer tenable is it. Yet the equivalence argument is valid, but in context.

        1. “software is equivalent to firmware to hardware”. I keep hearing that, and it’s still nonsense. Software and firmware are synonyms. Hardware is tangible and durable. If on some level this little statement is true, then simply execute in hardware if you want a patent and software if want a copyright. What is unjust or divergent with the intent of the founders and Congress with that approach?

          1. Because the form of the invention should depend on what is the most economical not to protect it. And you should not be able to get around a patent for hardware by performing parts of it in software.

    2. it is quite apparent the are equating abstract with nonstatutory. If subject matter is neither a machine, manufacture or composition, or process involving one of these in a functional sense, that subject matter is nonstatutory.

      I think this goes a bit too far, Ned, but as a matter of fact, given the incredible breadth of the classes of eligible subject matter recited, there isn’t a whole lot of daylight between a “disembodied idea” (an “abstraction”) and “a machine, manufacture or composition”.

      The major bit of daylight, of course, is the equally broad term “process” but, as Chen and many others have noted, that term can not possible be construed to mean “any series of steps regardless of whether a machine is involved and regardless of whether any physical matter is transformed by the process” without turning the entire patent system into a complete joke (the joke we’ve been enduring for far too long until the Supreme Court stepped in to put an end to the n utsanity).

    3. Good circular logic, Ned. “You can’t patent something abstract because it’s statutorily ineligible for patenting, because it’s abstract.” Great guidance from SCOTUS.

      1. Heebie-Jeebies, I don’t think you quite understood what I said Mr. HJ. If the subject matter is nonstatutory, it certainly is abstract. Abstract of course can be a broader concept than being nonstatutory, but why do we have to go there? All we have to know is whether the subject matter is a machine, a manufacture, or composition, or process that deals with one of the others in a transformative way.

        And of course, the problem of not defining abstract in terms of the statute leaves open the possibility that the courts will some day approve the patenting something that is neither a machine, a manufacture, a composition or a process that deals with one of these transformative way.

    4. Even if abstract ideas were eligible, do you know who makes, uses, offers for sale, imports “abstract ideas?” How do you build a claim chart for an accused “abstract idea”? How do you determine damages?

      1. Pika, claimed in combination with a computer, the claim as a whole is not abstract.

        Still the novel portions remain nonstatutory.

        Illustrates the central flaw in the Supreme Court method of analysis.

      2. This is not my way of wording it. In the cases I have seen so far, apparatus claims found ineligible were probably non patentable. In your example, there would be nothing patentable in the claimed computer. To invalidate these claims, there are rules of claim interpretation, 102 and 103, I don’t see the point to mess up with 101.

        The only remaining issue for me is to be able to reliably predict when a method claim will be deemed to be drawn to an abstract idea.

        My initial reaction is that such a method claim will never be litigated, because it looks impossible to prove infringement or damage. How can a court say that a reasonable plaintiff would bring a suit about infringement of a claim drawn to “an abstract idea”?

        I think that “abstract idea” is a bad choice of words, and you are right in saying that the court will not attempt to define it. Nor is it useful to look in a dictionary. It is at best a catch-all category for … I am not sure what.

        1. Because claims are made of words, and words are “abstract ideas” of physical embodiments, involving “abstract ideas” to analyze eligibility may not be helpful. At a small scale, each word is an abstract idea, maybe a claim element is still abstract.

          The court should have stuck with the wording of 101, “a useful invention”, instead of “not an abstract idea”. It is easier for me to spot a claim that as a whole does not recite an invention that provide a useful result (and maybe is abstract then?).

  22. and/or meaningful limitations beyond gen erally linking the use of an abstract idea to a particular environment.

    There is the nut. What rot. So, a method of detecting tumors would be abstract. Anything that isn’t directly tied to some device outside the computer. What rot. So, a computer to drive a car would be patent eligible since it improves the car, but a method of object detection in itself would not be. ==><== That is a clear contradiction. That a component of a system –vital at that–would not be patent eligible and yet the whole system would be.

    1. Please don’t accept this nonsense. The boiler plate response to these ridiculous response is first that it is an inappropriate omnibus type rejection.

      Next we have to argue that the claimed method improves the computer. Either the computer couldn’t do X at all before before or it can now do X faster, more accurately or while requiring fewer resources.

      Most inventions are in the configuration. Wood, cloth and rope are very old. Wilbur and Orville configured those raw materials, and claimed said configuration.

      These days, “generic computer” is a raw material. Many inventions configure the computer to do something new or configure it to do something differently (and better according to some measure).

      If configurations of known raw materials are not patentable, nothing is patentable.

      It is simply absurd that a new electric toothbrush design is patentable but a new method of getting a computer to type what you speak is allegedly not.

      1. I agree Les it is ridiculous. And one can tell it is ridiculous because of all the contradictions it creates.

          1. MM, I just explained one above. You are responding to a post that explains a contradiction. How about addressing what I wrote?

      2. It is simply absurd that a new electric toothbrush design is patentable but a new method of getting a computer to type what you speak is allegedly not.

        Is it also absurd that I can get a new toothbrush patent (when I describe the toothbrush in objective structural terms) but I can’t get a patent on a new method of thinking about a correlation between fingernail length and childhood leukemia?

        Or does your absurdity meter only fire when the term “computer” is mentioned because … “computer so awesome dude!”.

        I’m quite sure that many people would be happy to grant you a patent on the particular software that actually achieves the results you fantasize about on a real operating system when you recite in your claim and desposit the code that achieves that function on the recited operating system.

        Otherwise, take comfort in the fact that you’ve other means available to protect this functioning software.

        1. I disagree. I think such a system would receive a 101 rejection under the current USPTO memo / regime, regardless of whether the applicant presents working code. Would you be willing to support your statement with a claim you think passes 101?

      3. If configurations of known raw materials are not patentable, nothing is patentable.

        Just so we’re clear in this analogy, you’re going to claim HOW the raw materials get configured, not just “materials configured to X” right? That’s one of the important distinctions, because nobody limits how they configure a computer, they just claim a computer configured to X.

        A processor running code “configured to” do function X has always been invalid under 101 and 112. Many attorneys seem to be in the process of just rediscovering this wheel right now.

        1. If you can articulate the difference between a claim that recites HOW and a claim that merely recites configured to X, I would like very much explore this with you.

          I think the Alice claims recited HOW. In a nut shell, the said, set up shadow accounts and update those accounts at the end of the day… and gave other particular steps.

          Does this recite enough HOW for you:

          A method of filtering an audio signal, the method comprising:
          sampling the audio signal at at least the Nyqusit frequency of the highest frequency of interests;
          performing an FFT on a portion of the samples;
          deleting a portion of the result of the FFT corresponding to the frequency to be removed; and
          performing an inverse FFT on the result remaining after the deletion.

          A filter comprising:
          at least one processor configured to:
          sample an audio signal at at least the Nyqusit frequency of the highest frequency of interests;
          perform an FFT on a portion of the samples;
          delete a portion of the result of the FFT corresponding to the frequency to be removed; and
          perform an inverse FFT on the result remaining after the deletion.

          Is that enough HOW? Or do I have to specify the particulars of the FFT? Of the sampling? Do I have to explain how to delete a portion ? What if those are not important? What if the invention is in the combination of those broadly described steps?

          1. Les, the dividing lie is whether one is claiming an improved machine or simply the use of an old machine to do something nonstatutory.

          2. If you can articulate the difference between a claim that recites HOW and a claim that merely recites configured to X, I would like very much explore this with you.

            “Configured to” claims the end. “How” would claim the means. To use Alice as an example, I don’t believe Alice ever pointed to any steps, but one of the amici pointed out you could do it with seven lines of code – input account1, input account2, input value of transfer, look up value1, if value1<transfer then STOP, or something along those lines. Claiming those steps, rather than the effect of those steps, would be means rather than end claiming.

            Does this recite enough HOW for you:

            I don’t know enough about audio sampling to answer. Here is what you would need:
            “the Nyqusit frequency of the highest frequency of interests;” would have to be one point (value?) for any given signal (definite input)
            “performing an FFT” Is FFT a known procedure with a defined structure? (definite transformation)
            The other two steps seem like definite transformations

            Or do I have to specify the particulars of the FFT? Of the sampling?

            Yes, if FFT is not a single thing.
            I believe sampling has a common meaning in the art, so no.

            What if those are not important?

            Let’s be clear here – there are only two sanctioned usages of functional language. The first is 112, 6th. The second is in Wabash, when the court said that a limited use of functional language to describe conventional things may be tolerated (it was clear this is a very small exception).

            As I’ve said elsewhere here – you can be the first to create a machine that turns bread into toast. You can call it a toaster. But you can’t claim “all toasters” nor the act of “toasting” because you have but one means of unbounded end. Conversely, when toasters have already been invented and you’re trying to point out the bread in your system has become toast, it’s okay to claim toasting using any conventional means.

            When you say “what if it’s not important” I assume that what you’re saying is that there are conventional means of achieving that result. In this case, the safe thing to do is list the conventional ways of doing so (I assume it would be a short list) or, if not, use the Wabash language and make clear in the spec that it is drawn to conventional means of achieving the result.

            Here’s the thing, when your guy invented this he didn’t apply all of the transformations, he applied one. Just like writing a program, there’s multiple paths to achieve the result, but he didn’t use them all, he used one. Theoretically, the way the law handles this is that he claims the actual way that he used, and then the doctrine of equivalents expands it to infringers that use structurally similar methods. By claiming functionally it expands the scope to infringers that use structurally dissimilar methods, which is an improper grab by the patentee. If he knows of other structures that will achieve it, he should point to those and structure claims to them in the alternative. What he shouldn’t (and can’t) do is claim the entire end result and count on the hypothetical PHOSITA to broaden his scope out for him.

            What if the invention is in the combination of those broadly described steps?

            Certainly this can be done, but in my experience gets people in more trouble than they are aware. When you speak only in terms of a general research plan you don’t really have an invention at all, which is why it gets 101 rejections.

            Here’s something I see happen all the time, Applicant invents:
            Step A
            Step B
            Step C
            Step D
            Leading to good result E

            Then either the Applicant or the attorney comes in and changes it to:
            Result of Step A
            Result of Step B
            Result of Step C
            Result of Step D
            Leading to Result E

            Then, under 103 they scale back limitations from the “Result of X” to simply the “Step X” until it beats 103. The argument that “Result of X” is surpasses 112 scrutiny because of the enabling disclosure of “Step X” is wrong. “Step X” is one way of achieving “Result of X”, and (barring extremely particular circumstances) the two are not coextensive. While PHOSITA reasoning may get you from Step X to Result of X for enablement, it won’t get you there for description, since that is a subjective test.

            and Randomguy thinks the dividing line is elsewhere…between HOW and configured to:

            There is one tangible thing in the world: It’s a computer disk with code on it, and that code has a structure. Any attempts to abstract out that structure into functional claiming is extremely dangerous for the inventor. Morse invented a telegraph and then tried to claim the function of “printing at a distance” arguing that “it doesn’t matter” or “its not important” how else other machines are structurally set up, because they achieve his result – the result he first captured. That argument has been resoundingly and repeatedly rejected. When you limit your claim to how you achieve something, describing your structure and your means, you have something the law protects. When you limit your claim by the effect produced, you would necessarily have to prove that you are both the first and last word in achieving that effect, which is virtually impossible to do (so much so that by Halliburton the court wasn’t even considering any other possibility).

            The lines aren’t that different at all, when you claim without describing the means, you’re claiming a function, which is not an improved machine under 101. It’s a lot easier to think about in terms of 112 though.

      4. The Wright brothers ? The wide view of history is they should have worried less about patents and more about Glenn Curtis et al. as they were passed by.

        Also, their patent was not based on the raw materials at all: it was a method patent for flight control, and not a manufacture of an airplane. Like many methods, it was one choice of several, not the best choice, and was left behind in future development.

        1. You are mistaken on many points. The Wright Flyer wing warping patent claimed hardware using means for language.

          Whether they should have tried to enforce their patents or not is besides the point. We are talking about patent eligibility here.

  23. and/or meaningful limitations beyond generally linking the use of an abstract idea to a particular environment.

    There is the nut. What rot. So, a method of detecting tumors would be abstract. Anything that isn’t directly tied to some device outside the computer. What rot. So, a computer to drive a car would be patent eligible since it improves the car, but a method of object detection in itself would not be. ==><== That is a clear contradiction. That a component of a system –vital at that–would not be patent eligible and yet the whole system would be.

    1. a method of detecting tumors would be abstract

      Most of the most commonly used methods of detecting tumors have always been ineligible. Just as were most commonly used methods of detecting [insert object here] on a shelf.

      It’s important to recognize this fundamental fact about our patent system: not everything that might be sooper dooper useful and important to someone is eligible for patenting. The patent system doesn’t exist to serve only those people skilled at manipulating it, or those people who want to reduce the risks associated with their chosen form of gambling. There are many other considerations that go into a sane patent system.

      a computer to drive a car would be patent eligible since it improves the car

      Not necessarily. I can think of a zillion claims directed to such that could be deemed ineligible in as much time as it takes to read the claim.

      1. >It’s important to recognize this fundamental fact about our patent >system: not everything that might be sooper dooper useful and >important to someone is eligible for patenting.

        What nonsense.

            1. Super Doper scientific discoveries, like E=MC2.

              A man-made organ, but one that is genetically-identical ones found in nature.

              A super doper flowchart on how to get a patent.

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