Data Structure Patent Ineligible

By Dennis Crouch

Digitech Image v. Electronics for Imaging (Fed. Cir. 2014)

Digitech sued dozens of companies for infringing its U.S. Patent No. 6,128,415. As I wrote back in April 2014, basic idea behind the invention is to tag digital images with particular information about the camera and its color/spatial image qualities in a form that is device-independent. The patent includes claims directed to both a “device profile” and a “method of generating a device profile.” The profile is simply a set of data elements regarding the camera qualities discussed above and the method simply involves generating and combining those data elements. This sort of tagging of digital images has become ubiquitous and so the patent could be quite valuable – except that the Federal Circuit has held the patent invalid as lacking subject matter eligibility under 35 U.S.C. §101.

Claim 1 is drafted as follows:

1. A device profile for describing properties of a device in a digital image reproduction system to capture, transform or render an image, said device profile comprising:

first data for describing a device dependent transformation of color information content of the image to a device independent color space; and

second data for describing a device dependent transformation of spatial information content of the image in said device independent color space.

The District Court found the claims invalid and that decision has been affirmed by the Federal Circuit. Decision by Judge Reyna, joined by Judges Moore and Hughes. Because subject matter eligibility is a question of law, the Federal Circuit reviews that issue de novo without giving deference to the district court analysis.

Most subject matter eligibility cases rely upon the non-statutory limitations on eligibility (abstract idea, law of nature, natural phenomenon). However, the court here begins with the statute:

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

35 U.S.C. §101. The statute identifies four categories of patent eligible inventions: processes, machines, manufactures, and compositions of matter. In considering the “device profile” claim, the appellate panel concluded that the claim did not properly fit within any category and is therefore not eligible for patenting. The court writes:

Data in its ethereal, non-physical form is simply information that does not fall under any of the categories of eligible subject matter under section 101.

At the Federal Circuit, the patentee argued that one of skill in the art would understand that the claims required hardware or software within a digital image processing system. However, in an implicit claim construction, the appellate panel rejected that argument – finding that the claims are not so limited. “The claims encompass all embodiments of the information contained in the device profile, regardless of the process through which this information is obtained or the physical medium in which it is stored.” The underlying problem with this analysis is the reality that data is always stored in a physical form lest it disappear.

This first portion of the opinion has the important resulting holding that patent eligible subject matter must be in “a physical or tangible form.” Quoting Burr v. Duryee (1863) (“a concrete thing, consisting of parts, or of certain devices and combination of devices”). The court declined to discuss how it would hold if the claimed data structure had been linked to a physical item such as some sort of computer hardware. Of course, this physicality test as an absolute rule was seemingly rejected by the Supreme Court in Bilski.

In the second part of the short opinion, the Federal Circuit addressed the method claims. Those claims clearly passed the statutory category test as being drawn to processes. For the method claims then, the court turned to the abstract idea limitation recently discussed by the Supreme Court in Alice Corp. v. CLS Bank Int’l, 573 U.S. ___ (2014).

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.
  • Something More: Second, determine whether the claim recites sufficient additional inventive features such that the claim does not solely capture the abstract idea.

As the Court wrote in Alice:

At some level, “all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Mayo. Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. See Diamond v. Diehr, 450 U. S. 175, 187 (1981). “[A]pplication[s]” of such concepts “‘to a new and useful end,'” we have said, remain eligible for patent protection. Gottschalk v. Benson, 409 U. S. 63, 67 (1972).

Accordingly, in applying the §101 exception, we must distinguish between patents that claim the “‘buildin[g] block[s]'” of human ingenuity and those that integrate the building blocks into something more, Mayo, 566 U. S., at ___ (slip op., at 20), thereby “transform[ing]” them into a patent-eligible invention, id., at ___ (slip op., at 3). The former “would risk disproportionately tying up the use of the underlying” ideas, id., at ___ (slip op., at 4), and are therefore ineligible for patent protection. The latter pose no comparable risk of pre-emption, and therefore remain eligible for the monopoly granted under our patent laws.

Although the Supreme Court provided this two-step framework, it left some gaps for lower courts to discern, such as the meaning of “abstract idea” and “something more.”

The process claim at issue here is directed to a method of generating a device profile and includes three steps:

[Transform First Data] generating first data for describing a device dependent transformation of color information content of the image to a device independent color space through use of measured chromatic stimuli and device response characteristic functions;

[Transform Second Data] generating second data for describing a device dependent transformation of spatial information content of the image in said device independent color space through use of spatial stimuli and device response characteristic functions; and

[Combine Data] combining said first and second data into the device profile.

In reading these steps, the Federal Circuit identified what it sees as the abstract idea:

The two data sets are generated by taking existing information—i.e., measured chromatic stimuli, spatial stimuli, and device response characteristic functions—and organizing this information into a new form. The above claim thus recites an ineligible abstract process of gathering and combining data that does not require input from a physical device.

According to the court, the reason this result is abstract is that it is simply a “process that employs mathematical algorithms to manipulate existing information to generate additional information.” As the Supreme Court wrote in Flook,

If a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.

Parker v. Flook, 437 U.S. 584 (1978).

After identifying the abstract idea, the Court considered and rejected the notion that the patent provided “something more” that would be sufficient to transform the result into something patentable.

The Federal Circuit did not raise or discuss the presumption of validity afforded patents under 35 U.S.C. §282. In i4i, the Supreme Court ruled that invalidity for missing the §102(b) statutory-bar date must be proven with clear and convincing evidence. However, that defense is a question of fact. As discussed above, subject matter eligibility is a question of law and such questions are generally not controlled by the same evidentiary standards.

= = = = =

A major difficulty in abstract idea cases is defining the “abstract idea.” Here, the court’s description of the abstract idea at issue is somewhat confusing. Its clearest statement is that it is the “abstract process of gathering and combining data that does not require input from a physical device.” That statement has the qualities of (1) being well known and old; (2) being totally divorced from any physical device or technology; and (3) focused on information transformation rather than the transformation of anything in the physical realm. These clues here closely follow the machine-or-transformation test that the Federal Circuit implemented in its Bilski decision. Later, the Supreme Court rejected the reasoning that the MoT test was the absolute test, but agreed that it served as an important clue of subject matter eligibility.

692 thoughts on “Data Structure Patent Ineligible

  1. And speaking of ethics and reporting, did I mention that not only the state bar may mandate reporting?

    Check out the OED at link to ipwatchdog.com

    Rule 11.803 (and yes, the 803 section is meant to mirror the ABA Model Rules of Professional Conduct numbering system.

    Malcolm, I suggest you change your ways before you end up being reported by Prof. Crouch (I do know that Prof. Crouch has a USPTO number…)

    Wouldn’t that be nice? We would have the added benefit of cleaning up much of the dross and dissembling that is habitually vom1tted out on these threads by Malcolm and his intentional misrepresentation of law.

    Don’t worry Malcolm, you can still speak your “policy”/opinion, but you will have to speak it clearly as such – and not as you currently do in attempts to mislead others.

  2. “To be clear, Dennis is equally to blame here.”

    So what are you going to do about it Oh no?

    LOL – is there any doubt whatsoever where the gar bage flows from?

    (the count of the boycotted thread is at 418, with nary a post of merit)

  3. Crazy Billy keeps turning it up: For Prof. Crouch, I am still wondering if in fact you owe a duty under the ABA model rules for professional conduct. … You have created a nice playground here. You do have power over that playground. You do know the identities of supposed lawyers violating ethical rules of misconduct in their advocacy. You may – or may not – have an ethical duty yourself to police your own playground. Think of it as an attractive nuisance – the dynamite and barbed wire left by the swing set may not have been left there by you, but it is your property, n’cest-se pa?

    Because presenting arguments that weaken software patents is like ki lling little kids.

    Try to believe it, folks. Billy and his compooter-implementin’ cohorts really do believe they are The Most Important People ever. They just can’t stand the idea that anybody else except them should have any say about the awesomeness of their patent grabbin’ schemes.

    1. Or you are incredibly annoying because you repeatedly present arguments that are factually and legally incorrect.

      Please tell us how an information processing method is really a natural law. That one is always good for a belly laugh.

      1. you repeatedly present arguments that are factually and legally incorrect. Please tell us how an information processing method is really a natural law.

        Sure, right after you tell us when you stopped beating your wife.

        1. Several years ago you repeatedly claimed that information processing methods were natural laws.

          Do you deny that?

          1. Several years ago you repeatedly claimed that information processing methods were natural laws. Do you deny that?

            I certainly don’t remember “repeatedly claiming” that. It’s more likely that you were drunk or high and imagined that I made such a claim.

            Perhaps you can show everyone the quote and the context in which it was made. Or you can consider shutting your piehole for a change.

      1. NWPA,

        Maybe you missed the point of the boycotted thread (being too busy yourself doing the arguing).

        What then is the point of your post at 40.3?

        1. Observation. Don’t take the crazy Billy personally. It was included as a justification for calling MM (Mor0n Milly).

    2. No one is saying any of these things that Malcolm is spewing forth:
      - presenting arguments that weaken software patents is like ki lling little kids.
      – compooter-implementin’ cohorts really do believe they are The Most Important People ever.
      – can’t stand the idea that anybody else except them should have any say about the awesomeness of their patent grabbin’ schemes.

      Each of these are purposeful misrepresentations.

      Malcolm just doesn’t know when to stop, does he?

      Keep racking up the deceit and misrepresentations, pal – karma is coming your way.

  4. “To be clear, Dennis is equally to blame here.”

    So what are you going to do about it Oh no?

    LOL – is there any doubt whatsoever where the gar bage flows from?

    1. Boycotted thread up to 266 now – some interesting posts by Oh no and his seven posts this morning – let’s see if being on point to the law makes any difference to the sty, er, um, playground there.

  5. Anon: Lastly, your continued choice of ignorance of controlling law when it comes the exceptions to the judicial doctrine of printed matter defies sanity.

    I clearly demonstrated that there is more than one type of printed matter, and that the judicial – not statutory doctrine excluding a certain – non all encompassing set of printed matter [call this Set B] has been recognized – under law – to NOT include a different set of printed matter [call this Set C] that carries patent weight.

    Your insistence on mischaracterizing this materiel aspect of law is quite frankly unethical, and if you were to attempt this in a court of law, I would move for – and obtain – sanctions against you.

    Again anon, I don’t know where you get off calling the printed matter some kind of judicial doctrine as if printer matter were otherwise statutory and there was an exception. I have quoted to the cases, including In re Russell that clearly identifies printer matter was nonstatutory, citing as its authority cases that go directly back to Hotel Security. Printed matter is nonstatutory – not being a manufacture, machine, or composition of matter.

    Of course, with all nonstatutory subject matter, printed matter can be integrated with the statutory so as to modify it into something new and that something new might be patentable.

    As to your call for sanctions for mischaracterizing law, I don’t understand how you can talk about that when you provide no legal authority for your position and I endlessly quote case law that says exactly what I say it does.

    1. Ned,

      You have mis-quoted the cases, ignoring the fact that it was the judicary (not Congress) that was deciding on certain types of printed matter – and then later distinguishing those types of printed matter because – in fact – there was no statutory basis for excluding that type of printed matter that had functional relationships. -

      1. printed matter that had functional relationships

        First, the “printed matter doctrine” is not limited to “printed matter” but covers any kind of information carried on any kind of media (e.g., an old screen displaying new information would fit perfectly within the doctrine).

        Second, the term “functional relationship” in this context is meaningless gobbledygook.

        If you have a problem with the term “abstract” as applied to subject matter eligibility, then you necessarily have a much bigger problem with the term “functional”. All useful information is “functional” and every time information is stored or embodied in any media, that media has a “function” that it did not have before, the specificity of which is exactly congruent with the specificity with which the information is described.

        1. is meaningless gobbledygook.

          So declares the Red Queen / Humpty Dumpty.

          Where though is the evidence for this baseless assertion?

          1. Where though is the evidence for this baseless assertion?

            I just put the “evidence” right in front of your face, Billy. If you can explain to everyone why some information is deemed “functionally related” to the media carrying the information and why other information is deemed not to be “functionally related” to that media (and therefore not “given weight” under 103), then you will have the beginnings of a rebuttal to my assertion that your beloved test is gobbledygook.

            Otherwise you’re just parroting some self-serving nonsense made up by some judges to achieve a particular desired outcome (i.e., finding a claim obvious or not).

            You see: I’m expressing my opinion and providing you with the reasonable basis for that opinion. You’re free to disagree and explain why you disagree. But you’re not free to assert that I don’t have a reasonable basis for my opinion because I just gave it to you. Or to put it another way: you can l i e about whatever you want (e.g., “MM never backs up what he says”) but be prepared to be called out on that l i e every time you make it.

            See how that works, Billy?

            1. There is no evidence.

              Oh wait – it is “evidence” if the Red Queen/ Humpty Dumpty says it is evidence.

              By that token though, your 1ie about NWPA falls to the same pronouncement.

              You really do blow at this.

            2. I’m expressing my opinion and providing you with the reasonable basis for that opinion.

              LOL _ Malcolm’s “evidence is his expression of his opinion and we are to take his word for it that the expression is a “reasonable” one….

              You really do love that Red Queen / Humpty Dumpty moniker don’t you?

              1. we are to take his word for it that the expression is a “reasonable” one….

                Not at all. But if you think my explanation for why the “functional relationship test” is gobblyedook is unreasonable, the civilized thing to do is explain why you feel that way, Billy. Try doing so using plain English and without engaging in your usual “I don’t have to explain anything cuz you don’t hae a cite” silliness.

                I know that’s difficult for you. But you’ll never learn if you don’t try, Billy.

              2. The onus is on you to change the law as it is understood Malcolm.

                When what you offer as “reasonable” is based on pure opinion to change the law – without any factual or legal basis, then my calling it out as unreasonable is all I need to do.

                Again – the onus is on you – try to make a cogent stand with more than just your Red Queen / Humpty Dumpty declarations.

      2. anon, a judicial exception in patent law essentially means that that the claimed invention unpatentable even though otherwise statutory.

        Printed matter, where the only difference between the claimed subject matter and the prior art is in the arrangement, meaning or content of the printed matter, is non statutory.

        Where, however, the underlying statutory subject matter is improved, the claim as a whole is statutory. Diehr.

        You are all wrapped up in contradictions, anon, because you do not start from the correct premise. Printed matter is nonstatutory.

        1. Set B versus Set C Ned – you still are not accounting for the factual difference.

          Until you can account for this difference, your position is fatally defective.

          (You are also not accounting for what the judicial doctrine is at the onset).

    2. Printed matter that has a functional relationship IS statutory.

      Such is a manufacture and has patent weight.

      1. Printed matter that has a functional relationship IS statutory

        Meaningless self-serving nonsense.

        Tell everyone exactly how to determine whether information recited in a patent claim has a sufficiently “functional relationship” with the medium used to communicate that information (and also recited in a patent claim) such that a claim directed to that combination of new information and old media is considered “as a whole” under 103.

        Don’t direct us to some old pre-Prometheus and pre-Alice cases and tell us to read them. Tell us in your own words what the test is, just like I told you in my words the same tests that are being used by the courts to tank abstract computer-implemented j nk.

        Let’s hear it.

        1. Meaningless self-serving nonsense.

          So declares the Red Queen / Humpty Dumpty.

          Where though is the evidence for this baseless assertion?

      2. anon, as a manufacture, consider the flag having three black letters sewn on a white field. Viewed from one side we see “dog” and from the other “god.” Which view represents patentable subject matter?

        The printed matter doctrine is not strictly about the printing, but about the meaning of what is printed.

        As Hotel Security said, the first to have come up with printing might have a patent. But when what come later changes in abstract content, then that abstract content is not eligible.

        1. The printed matter doctrine is not strictly about the printing, but about the meaning of what is printed.

          Wrong – it is about the printed matter having patentable weight because of being functionally related.

          Your flag example is strictly a Set B item – YOU still need to acknowledge the existence and the difference with Set C items.

          Ned, all of this was explained to you in great (and simple detail). You raised no questions at that time – you raised no objections.

          What you continue to do is ignore the lesson that I have put before you, ever seeking obfuscation.

          Your purposeful choice of remaining in ignorance is duly noted. It is up to you to change and accept the simple truth.

          1. Ned – you are doing that opposite thing.

            Re-read my post and note what the judicial exception is. You have confused yourself again.

            Let’s take this in baby steps then:

            The statutory basis is the starting point – and that point is very wide. In other words a pure statutory reading is inclusive of even the possibility of printed matter.

            Then – through the judicially created doctrine – certain printed matter was deemed to not have patentable weight. The judicial doctrine serves to limit the broad statute. The judicial doctrine comes AFTER the statutory meaning, and by judicial edict is meant to limit the plain broad words of the statute (whether this action goes too far or not is NOT an immediate cause of concern – and I think you are tripped up here).

            Then – the exception to the judicially created doctrine comes into play when the realization that some printed matter does not raise the issues that other printed matter raised (that “other printed matter” that DID raise some concern and that created the judicial doctrine that limits the broad statutory meaning just was not applicable to ALL printed matter). A return to the original broad statutory inclusion is then made for the types of written matter that did not fall into the concern of the judicial doctrine.

            Or to put it another way: Think simple set theory.

            ALL printed matter is Set A.
            SOME printed matter that raised a judicial concern is Set B.
            OTHER printed matter that does not raise that same judicial concern is Set C.

            Software is within Set C and NOT in Set B.

            The judicial doctrine of printed matter is concerned SOLELY with Set B.

            When one speaks in broad gen eral terms of Set A, one must be aware of the fact that Set A contains both of the mutually exclusive sets of Set B and Set C, and that for patent purposes, Set C is entirely permitted. Set C includes software (as well as measuring cup and magic hat bands).

            [Ned, you do remember the cases with the measuring cup and the magic hat band, right – I’ve held your hand on those cases several times now]

            1. I don’t get how Ned and MM can continue their argument. Common sense: sticking in a CD-ROM into your computer and running a program. Just like a component to a machine.

              1. sticking in a CD-ROM into your computer and running a program. Just like a component to a machine.

                “Sticking a recipe book in front of a robot chef. Just like a component to a machine.”

                In enforceable patent claims, machine components are described structurally in objective structural terms. Talk to me when CD-ROMs are described that way. Otherwise you’re just pounding sand and ignoring how your favorite “machine components” are actually claimed.

              2. Ned: loading …

                Ned, you hold to the early 20th century thinking of R. Stern. The mark is indelibly on you. Computers are different. They are not guns. The CD-ROM is like a machine part. It is not like a bullet.

                But, by the way, bullets are eligible for patentability.

              3. I have explained previously the limits of the analogy – and Ned (being intellectually dishonest) purposefully goes beyond that limit yet again – while ignoring the point of the analogy that does fit: machine components, in and of themselves, are patent eligible and need NOT be claimed only in relation (or embedded in) the machine itself.

                Simple logic Ned – and yet, you choose (again) to obfuscate.

              4. Malcolm again dissembles with a canard of “In enforceable patent claims, machine components are described structurally in objective structural terms.

                There is nothing whatsoever in the law that says claims can ONLY be described “structurally in objective structural terms.”

                Your advocacy to the contrary misrepresents in a material manner what the law is, and is quite frankly unethical. If you want to advocate a change in law, then you need to post in that manner – not in the deceptively misleading manner that you choose to post in.

                That you repeat this on a drumbeat-constant basis warrants you being reported to your appropriate bar (if you practice in a jurisdiction that follows the ABA model rules of professional conduct and if you are actually an attorney).

            2. You know Ned and clown boy (MM),

              It occurred to me there is another way to illustrate that your arguments are nonsense. Again it is the equivalency argument. The CD-ROM plus Gen eral Purpose Computer define a new machine that could be built instead of the CD-ROM and GPC.

              That isn’t true of your other bizzarro examples. Science will win out if rational people are in a discussion. I know, I know, I can hear you two dirt bags laughing. Science is gone from the Fed. Cir. NWPA. We got Obama to appoint nothing but science illiterate shills now so we don’t have to worry about science.

              I know clown boys. I know.

              1. NWPA,

                This principle was presented on these threads a long time ago in the Grand Hall experiment.

                The Grad Hall experiment then was shown in a concrete example of case law: Nazomi.

                It is no accident that to this day Ned Heller has purposefully chosen to be (and remain) ignorant of what the Nazomi case illustrates: the mere addition of software created a new machine.

                Just like the Grand Hall experiment.

          2. “it is about the printed matter having patentable weight because of being functionally related.”

            What if the “dog/god” flag is computer readable so that androids will fight harder on the field of battle? Patent eligible then?

            1. What do you mean by “fight harder?”

              I wonder if you see the irony in your own post, or if you are still trying to run the Microsoft operating system from your Britney Spears CD.

              1. “What do you mean by “fight harder?””

                What do you mean what do I mean? They fight harder, with more android determination, grit, and “get’er done” or insert x cool fighting ability here. It doesn’t matter what I mean by “fight harder” give it the BRI, all that matters is that the dog/god flag is compooter readable to accomplish a “function” in androids.

              2. What do you mean what do I mean?

                LOL – slapstick 6 at his finest.

                It doesn’t matter what I mean by” – of course not – you did not intend to actually have a serious conversation on the point.

                Obviously.

          3. anon, the first printed book may have been patentable as a manufacture. Later printed books which change based on content are not because the new matter is nonstatutroy information.

            Software to the computer is like printed matter to the book.

            When software varies from other software by it content, the new part is nonstatutory information even though software itself is functional.

            Now change to focus to the computer, and ask, is the computer with the new software improved? If yes, you may have something.

            Change the focus to the larger system. If that is improved by the programmed computer, then we have something.

            This is not rocket science anon.

            1. Software to the computer is like printed matter to the book.

              Self evidently false.

              Once again, you neglect the real difference between Set C and Set B written matter.

              You will advance no further in your understanding Ned (and how is Nazomi coming along for you personally?) until you allow yourself to understand this primary and basic point.

    3. I endlessly quote case law that says exactly what I say it does.

      And again – you endlessly MIS-quote case law.

      There is a difference.

      1. anon, you are truly, truly confused.

        The statute defines patentable subject matter. If the novel aspects of what is being claim is nonstatutory, that is not a judicial exception to statutory subject matter.

        Patentable subject matter is again defined. The statute authorizes patents on new or improved machines, manufactures or compositions. Printed matter is none of these.

  6. Ned: Now, add something to the claim that ties the software to the computer to become part of it, then I change my position. Such is eligible as a new machine.”
    Ned – think machine component.
    Anon, As I have told you many many many times – you cannot “use” the software on ‘oldbox’ until you first add the component to ‘oldbox’ and thus change ‘oldbox.’
    Your views seems to want to be able to wave a magic wand over ‘oldbox’ and somehow have the manufacture and machine component that is software made to be “inherently” already in ‘oldbox.’

    Consider the user who has a gen eric computer. According to your theory, every time, and it could be a lot more than just one time, the user loads software into such a computer so as to complete the patented combination of particular software with a gen eric computer he infringes. He infringes when he loads a second “patented” computer program into the same gen eric computer. The user further infringes when he uses such a program. Thus he infringes every time he loads the program or use the program.

    The Supreme Court dealt with such case with the patented combination of a toilet paper holder with toilet paper rolls. The Supreme Court held that the patent combination was exhausted on sale of the toilet paper holder and that adding further examples of toilet paper to the holder was not reconstruction.

    Under this case, the sale of the computer exhausts all combinations of that computer with software. Adding other software does not constitute infringement nor does it constitute reconstruction.

    But, as we know, new use of and old machine can be claimed as a process. Thus when the software causes the machine to have a new use, that new use can be claimed as a process.

    However I will grant you that if the software essentially becomes part of the machine it is no longer is software, but firmware. As such, it does define a new or improved machine.

    1. The Supreme Court dealt with such case with the patented combination of a toilet paper holder with toilet paper rolls

      Wrong – that case did not have the functional relationship aspect.

    2. However I will grant you that if the software essentially becomes part of the machine it is no longer is software, but firmware. As such, it does define a new or improved machine.

      You miss the point about tires rivets and bullets.

  7. From the thread that I am boycotting:

    MM – Thank you for this thoughtful comment. Hopefully this thread will be a good one.

    LOL – Anyone else remember Laural and Hardy? The matching bowler hats are a nice touch.

    NWPA,

    You keep feeding the tr011. He loves to hear you whine. But all that you are doing is feeding the wolf at the back door and wondering why he keeps coming back.

    On the other hand, when I engage him and wreck him with his own words and lack of legal logic, it is he that sputters into apoplectic rants of rage. Trying using the fact that he has no law to pound, that he has no facts to pound, that all that he is doing is pounding his table of “policy”/opinion. Ask him those embarrassingly simple questions that go to the heart of the software patent eligibility (as opposed to patentability) and watch him whine and contort.

    212 posts on the new thread – “good” one. ;-)

    1. apoplectic rants of rage

      I know this is very difficult for you to understand, Billy, but there is no “rage” or “apoplexy” involved when you are told to go eff yourself.

      1. The stench of your hypocrisy is overwhelming Malcolm.

        Facts? Evidence? You supply none of this.

        You want to rely on the rantings of slashdot/techdirt lemmings who have ZERO understanding of law?

        You whine when others are critical of you.

        You NEVER back up anything you say, but retreat to the “policy”/opinion stand.

        You ignore solid law (and facts) by simply dismissing them or labeling them with naked ad hominem.

        You have more posts expunged for improper behavior than all others combined, and then want to sit atop a high horse.

        Your responses of F exemplify that you have no cogent, legal argument to make in reply to my posts.

        You perpetually ignore calls to back up what you say – you ignore very simple questions that go to the heart of the software as eligible patent material discussions. You play your short script of nonsense perpetually.

        Tell me Malcolm, when are you going to change from your own bankrupt posting style, and drop your short script tactics?

        Drop the ad hominem
        Drop the spin
        Drop the mischaracterization of law (including the exceptions to the judicial doctrine of printed matter)
        Drop the mischaracterization of facts
        Drop the mischaracterization of what others post
        And above all, drop the Accuse OthersOf That Which Malcolm Does.

        If your point is that you purposefully misrepresent what others post….
        … then your point is just another Malcolm Self-FAIL.

        1. ^totally not a rant by anon.

          “but there is no “rage” or “apoplexy” involved when you are told to go eff yourself.”

          Well there might be, but it isn’t from you MM. Just observe the response.

          But hey wasn’t it nice for Mr. OCPD to put his rant into the form of a list?

        2. Whoaaaaa, Billy! Maybe it’s time for your nap.

          You NEVER back up anything you say,

          Right. And astronauts never landed on the moon.

          You can believe whatever you want, Billy. We all know you’re completely full of sh it.

          1. No evidence for these baseless assertions Malcolm.,

            Billy the Psych 0 path can’t see the difference between an assertion based on evidence and reason and pure b.s.

            It’s all the same to him.

            Anybody surprised?

            1. can’t see the difference between an assertion based on evidence and reason and pure b.s.

              LOL – coming from the guy who cannot tell the difference between fact and spin, that’s pretty rich.

              Thing is, I CAN tell when something is pure b.s. – the post begins with “MM”

        3. The Supreme Court knows absolutely nothing about patent law, they have no training in the area, they lack basic familiarity, and the fact that you fail to understand this simple truth speaks volumes about your own lack of knowledge.

          You say: “Who cares about innovation right?”

          Obviously you don’t care about innovation. I care about innovation and all objective evidence clearly proves that patents are necessary. Please inform yourself before you comment here in the future. It is unbecoming for you to prove that you are ignorant.

          Billy’s teacher and mentor at his very, very best.

          ROTFLMAO

            1. someone who does not even post here….?

              The “Royal Nine” are clueless? Patents are necessary for innovation? Anybody who disagrees with these statements is ignorant? Gee, that sure sounds a lot like a few people who post here regularly.

      1. The fact is anon that you are right in that they are misconstruing the law, but the factual differences are really at the heart of the dispute. Information processing isn’t really different than other inventions.

  8. Worth repeating on top, given the length of the thread:

    Bert (and Ned, if he is willing to listen),

    The Prior User Right discussion was reflected in the words of Congress when Congress put in place the first version to protect business method patent holders and still afford a limited defense.

    Note that in the original legislation, even this limited defense was intended as a temporary measure, while FULLY having business method patents remain a permanently allowed item under the law.

    Eric Guttag has a current post at IPWatchdog that goes into this a bit. Even better than his current post, though is a link to a post that he wrote after the Bilski decision that explains this in more detail.

    In the comments section of that earlier post are messages from a writer named “scrappy” that you should read.

    I welcome your comments after you have taken the time to read and understand our legal history on this subject.

    link to ipwatchdog.com

    1. anon, just read that old piece by EG.

      Wow! What utter gar barge.

      He completely ignores history, State Street Bank, and what really happened.

      All told, on fat 1ie.

      1. Ignores history?

        Um, no, Ned – quite the opposite. Did you check out the comments as I asked? The indications to the actual Congressional records?

        Your “version” of what really happened is what is utter gar bage.

        1. Listen, anon, the effort was to get a broad prior user right. We settled for what we could get. The bit of legislative history was written by someone who apparently like software patents. I think it was perhaps written by IBM who use the opportunity to plug software patents.

          But what I previously said was accurate.

          1. Your “version” may capture your perceptions Ned – but the Congressional record speaks a very different story.

            Seeing as I have literally torn apart your past “versions” on a routine basis, you will have to beg my forgiveness for going with the record that is in Congress.

      2. …and I note that you still have afforded no reasonable explanation as to why Congress would create but a limited defense to something that you hold was “known” to be completely non statutory all along.

        You – like Stevens – would have to turn the words of Congress into a nullity in order to reach your belief.

        Let me share (again) the words of Chief Judge Markey:

        “[o]ur concern here is with plain, simple disregard of the statute—
        evidenced in the promulgation of some words and phrases that muddy
        the decisional waters and other words and phrases that render the law
        as written by congress a nullity
        . In sum, when it comes to patent cases,
        the statute is the law—and court opinions containing language and
        concepts contrary to the statute are unlawful.

        Howard T. Markey, Why Not the Statute?, 65 J. PAT. OFF. SOC’Y 331, 331 (1983).
        (italic emphasis in original, bold emphasis added)

    2. Eric Guttag has a current post at IPWatchdog

      Eric Guttag? Is that the guy who commented here that he supported impeaching judges who used the term “monopoly” in the context of discussing patent rights?

      Why would anyone pay attention to someone who writes ridiculous ga rbage like that?

      1. Lovely AOOTWMD there – look in the mirror, remove the log from your eye before you attempt to remove the mote from someone else’s.

        1. look in the mirror

          I already did. I never advocated impeaching a judge for using the term “monopoly” to describe patent rights.

          That was Eric and AAA JJ who made those statements.

          I’m the guy who told you that all claims in the form [oldstep]+[newthought] are ineligible under 101. And you’re the guy who couldn’t bear to hear that fundamental truth about any sane patent system.

          Maybe you should look in the mirror for a change. Do you even own one?

          1. I’m the guy who told you that all claims in the form [oldstep]+[newthought] are ineligible under 101

            LOL _ the pet theory that has so many hoels that it sinks of its own accord….

            Love it.

          2. Malcolm’s Zombie returns.

            Come now Malcolm, you realize your stepping in your own CRP again, don’t you?

            Your pet theory [oldstep] can be granularized into multiple [oldsteps]…

            Your FAILURE to account for the fact that multiple [oldsteps] and a [newthought] can be both patent eligible and patentable (since, as you yourself have volunteered an admission that mental steps – as part of a claim – are fully allowed under the law.

            You know, this is just one of the several things with your zombie pet theory that you ignore in raising your zombie.

            As can be seen at link to link to patently.wpengine.com

            …highlight the fact that your pet theory uses a de facto assumption that the claim elements are not integrated.

            Also lost in your rants being expunged was the reply highlighting three or four other major faults with your zombie pet theory that you never seem to want to clarify. [so much for the “I always answer” line of B$]

            What remains of your pet theory is an excessively banal proposition of a mere appended thought, non-integrated and tacked onto a claim resulting in a claim being not eligible.

            But even a claim element, completely claimed in structural terms merely tacked on and not integrated also fails (such as a claim to a bicycle and a goldfish in a copper bowl) – thus the crux of your little pet theory and your advocacy falsely centers around the mental step portion.

            Your pet theory does not handle or address the fact that perfectly patent eligible and patentable claims can have elements in the claim that are mental steps, and such steps can carry patentable weight.

            This has been highlighted many times when you strawman a discussion and move the goalpost to talking only about claims completely in the mind and never get back to discussing claims not completely in the mind, but having only a portion completed in the mind.

            Your pet theory does not handle or address the fact that perfectly patent eligible and patentable claims can have [oldstep]+[oldstep] configurations, let alone [oldstep]+[newthought]+[oldstep] configurations. This highlights the failure of your logic wanting to hold that “doing what is already allowed” is made infringement with but a thought, as clearly there are cases (with NO thought added) that doing a combination of things – already fully allowed – is NOT allowed.

            You seem unable to comprehend these things, and you continue to advocate even when these things are brought to your attention.

            Your “pet theory” is shown to be nothing more than a zombie and you just don’t care.

            1. (btw, this is at least the third time that the points against Malcolm’s pet theory have been so gathered together and offered to him so that he could make a cogent response to the identified weakpoints of his little pet theory).

              Funny, he has never addressed any of these identified shortcomings.

              The “CRP-Run away from valid counterpoints-CRP again” motif on fine display (yet again).

              The asinine excuse of “choosing not to respond” only solidifies the obvious take-away of “cannot respond – at least, cannot respond with anything intelligent to say”.

              1. he has never addressed any of these identified shortcomings.

                Right. And astronauts never landed on the moon.

                Turn up the crazy, Billy! It’s been working so well for you these last few years.

              2. Rather than ((yet another) ad hominem empty reply, please actually address the points that I have brought up and placed before you.

                As I mentioned, this is at least the third time that I have placed these individual and concrete items before you, and you have yet to respond to them (on the merits).

                Have a real conversation.
                Please. Pretty please. Pretty please with a cherry on top.

  9. Fed Up and Oh No,

    Tell me how our little experiment is working out on the new thread with over 120 posts in one day (and none by me).

    Are you seeing “the improvement” that you thought that you would see?

      1. On the thread that I am boycotting, NWPA asks about historical actions, specifically those of a police state nature.

        History repeats: Note the parallel to NOT defining “abstract” so as to hold onto the power to decide any future case it wants to.

        Law – including patent law – finds repugnant the concept of purposeful vagueness when that vagueness is used as a control mechanism. Here in the States, this concept is most easily recognized in our criminal codes, and is often overlooked in civil matters. Perhaps we need to reevaluate when we are willing to overlook that power/control mechanism….

        link to foreignaffairs.com

      2. So for the new thread experiment, if we take out NWPA and all posters with 2 or less comments, (and that leaves two people being pro-patent) we have more than 80% of the new thread with nothing but utter CRP – no real law, no substantive merit.

        I don’t know about you, but for a legal blog, even at 100% civility (which, by the way, was nowhere even close on the trial thread), I would say that the experiment for Oh no and Fed Up is a dismal failure.

        Give them the playground, and the playground is condemned within a day.

        “good thread”

        Thumbs up (not sure where that thumb is up to, but it is no doubt WAY up there)

        1. “no real law, no substantive merit.”

          Are you trying to say people had a conversation? Maybe even people that are all familiar already with “the law” and the “substantive merit”?

          O
          M
          G
          !

          An outrage! An utter outrage! No critical evaluation! People just posting whatever they want without anon there to help control them! It’s horrible! Ahhhhh the humanity! How could this happen?!?!??!?!

          “(which, by the way, was nowhere even close on the trial thread)”

          It looks pretty civil to me.

          “I invite NWPA to also join the experiment and see what happens if we let the Anti-s run the playground.”

          I’d like to see that as well. Let’s try that on the next thread.

          1. For a legal blog, yes 6 – an outrage.

            Um, you do know that conversations outside of legal blogs are all the rage, right? No problem if you want to have at in such forums.

            It looks pretty civil to me.

            LOL – that’s pretty meaningless, given your inability to see your own issues on a regular basis.

            1. “Um, you do know that conversations outside of legal blogs are all the rage, right? No problem if you want to have at in such forums.”

              And no problem if we (everyone except you Mr. OCPD) want to have at it in this forum. Oh wait, there’s one person that has a problem with that…

              1. You ignore the point of the forum 6.

                And here, chew on this quote from your pal Malcolm:

                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
                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.

                Of course, you refuse to turn your gaze there.

              2. That’s you’re saying it is.

                Not just me 6 – you might just dig a little into the good Professor’s own writings.

                But hey, thanks for proving my point for me (yet again).

              3. you might just dig a little into the good Professor’s own writings.

                Hey Billy, please how us all where Dennis defined what constitutes “a legal discussion” and how that definition would in any way discourage anyone from, e.g., discussing the policy underlying any existing, proposed or former patent law or rule.

              4. underlying any existing, proposed or former patent law or rule.

                Move the goal posts back – as that was clearly outside of the comments of 6.

              5. It’s just a blog blog. He usually posts about patent lawl. And that’s all fine. To be clear, I may well be in violation of some TOS somewhere. If so, that’s between me and D, not me and you.

              6. Your logic is as off-point as Malcolm’s “I can post an off-point post to there” logic.

                The ability to be inane should not be taken as the calling to be inane.

                Aim higher.

          2. people had a conversation?

            Clearly, 6, the opposite point is to be made – echo chamber and drowning out has almost universally prevented conversations on the boycotted thread.

            That’s why I point out to Fed Up and Oh no that the “experiment” does not support their views that I should “play nice.” Playing nice does not work in all situations (See the Prisoner’s Dilemma game).

            A conversation is not had when you have posts drowning out a legal point, and then whining about all the drowning out (no offense meant NWPA).

            It looks pretty civil to me.

            Your perspective is off – you think that “politely” drowning out a legal discussion to achieve some level of “civility” is what is important. As I note: you achieve neither civility, nor any level of legal merit. “Good one.”

            History repeats – and your “civility” is very very very much like the Chamberlain “peace for our time” view. The manipulation of “civility” has a clear parallel to the Crybaby Veto. Anyone that can reason can see through your ploys.

            Absence of “criticality” is a bad thing.
            Especially when the criticality is based on legal and historical knowledge. Think Churchill rather than Chamberlain.

            For some odd reason you continue to think that “conversation” means the ability to step up onto a soapbox, say whatever you want to say with no one saying anything in reply, and then after you step down, you do not listen to what anyone else has to say. You are happy if you have your “piece.”

            That is not a conversation. Such has no interactiveness – least not the intelligent (and yes critical) interactiveness. Sure, the purely disruptive “interactiveness” of off-point, banal dust-kicking from the short scripts is gleefully used by the usual suspects. What you have – and want – are monologues with the control of no-critical-replies-being heard. I see that you have learned well the lessons taught in lemming school (listen, march, no talk back, never mind that approaching cliff edge).

            Alas, with real law, critical thinking is prized. Academia seems to have lost that notion in what is considered “thoughtful and good”. As indicative of the ossified ivory tower syndrome, alignment with prevailing views has become the measuring rod. “Repeat back what I said” is rewarded – daring to question is not. And heaven forbid if a counterpoint is to be found valid and need be fit into the pre-ordained world view.

            This is evident across the board, as not one single anti-patentist is willing to contemplate, let alone accept the valid points presented.

            Denial is the response.
            Denial of facts.
            Denial of history.
            Denial of law.

            Rather than deal with the merits of the items presented, the presenter is attacked. The merits of the items are denigrated as “mere opinions” of the presenter, rather than the facts, the history and the law as they are in and of themselves.

            If that (too) is your definition of a “good thread” – congrats. The non-lemmings should gladly let you continue marching up that hill of yours. At least for the present experiment.

            1. “echo chamber and drowning out has almost universally prevented conversations on the boycotted thread.”

              I’m not seeing an “echo chamber” and “drowning out”. I see lots of conversing going on. I can cite no fewer than 20 examples of such just right off hand.

              “Your perspective is off – you think that “politely” drowning out a legal discussion to achieve some level of “civility” is what is important. ”

              Well you know anon, that’s how conversations go sometimes. Even if that had occurred. Sometimes the less popular side gets less said simply because there are less people sharing that view or less people wanting to speak up.

              I’m not seeing all this “drowning out” though. NWPA et al. has had their say, it is prominent. Their say isn’t “drowned out” what so ever.

              “Absence of “criticality” is a bad thing.”

              Yeah well don’t tell me, tell all those dam shrinks and normal people in the world. Your fight is literally not with me on that one. It’s you and other OCPDers that have over-developed a coping skill v the world.

              ” say whatever you want to say with no one saying anything in reply”

              Again, for the millionth time, get up on your soapbox and say you disagree all you like. I’ve invited you to many times. It’s the right/wronging, along with the whole intentionality behind your getting on your soapboxing (trying to control the previous speaker) etc. that causes trouble.

              “What you have – and want – are monologues with the control of no-critical-replies-being heard.”

              I’m not sure what you mean by “with the control of no-critical replies being heard”. Whatever your new psychopathism means I’m guessing it refers to the soapboxers on here “controlling” the readers who are reading without any anon around to counter control them. Meh. Some of that might go on, as I do admit I may have (or at least helped to have) shaped the law in the fashion I desired, but it isn’t the worst thing ever. Or maybe it means that those wanting to critically reply (like yourself) are being held back from replying. Idk about that, they just needn’t make an ars e of themselves.

              “This is evident across the board, as not one single anti-patentist is willing to contemplate, let alone accept the valid points presented.”

              Brosef we literally have “contemplated” your “points” ad INFINMOFIN’ITUM. Srsly. They’re contemplated. We just don’t agree with them. Or don’t ascribe so much importance to them as you do. That’s all there is to it.

              Btw, last night I predicted that you’d make us a PF on sunday and it looks like you didn’t disappoint. Keep up the good story tellin!

              1. As mentioned, 6 – your “not seeing” is a sign of your affliction and denial.

                over-developed a coping skill v the world.

                ???

                PF? nice control label (again).

              1. I think that was his basic goal. But tbh, it’s a chronic condition MM, every sunday, like clockwork. He will make up a story. Then he’ll share it. Count on it.

      3. I invite NWPA to also join the experiment and see what happens if we let the Anti-s run the playground.

        Real law will not be present, and as Fed Up indicates, the playground of the anti-s will “greatly discourages anyone interested in actually learning anything useful or realistic about patent law, much less providing useful inputs.

        Play along with the experiment. We will see just how great a thread a lawless make-believe echo chamber will be.

        1. invite NWPA to also join the experiment and see what happens if we let the Anti-s run the playground.

          Dennis runs the playground, Billy.

          Is he an “anti”?

          1. Dennis runs the playground, Billy.

            LOL – three points:

            1) by you – given as you are by far and above – more than all others combined – the poster with the most posts expunged for being inappropriate, do you care at all about how Prof. Crouch is trying to run the playground?

            2) by Oh no: “To be clear, Dennis is equally to blame here.

            3) For Prof. Crouch, I am still wondering if in fact you owe a duty under the ABA model rules for professional conduct. Hey, I “get” running a blog might place you in an inconvenient position of having lots of privy data and all, but I don’t see the out in the rules that would excuse a non-reporting of rampant and material misrepresentation of law in a modern advocacy forum such as a blog. My Uncle Ben had a saying, “with great power,…” You have created a nice playground here. You do have power over that playground. You do know the identities of supposed lawyers violating ethical rules of misconduct in their advocacy. You may – or may not – have an ethical duty yourself to police your own playground. Think of it as an attractive nuisance – the dynamite and barbed wire left by the swing set may not have been left there by you, but it is your property, n’cest-se pa?

        2. the playground of the anti-s will “greatly discourages anyone interested in actually learning anything useful or realistic about patent law, much less providing useful inputs.”

          Maybe you should go some other blog then to get “realistic” input on patent law.

          Isn’t there a blog called IP S xckdog or something like that? I hear you can get great “realistic” advice there all the time. Isn’t that enough for you?

        3. Please give everyone some “realistic” advice on how they can protect information with patents, Billy.

          Let’s say I have some new data. I want to protect it with a patent. How do I do that? “Realistically”? What magic words do I need to use.

          A lot of people would love to know the answer. Some people have suggested in this thread that they know the answer but when asked to provide the details they disappeared. Poof! How disappointing that must have been for you.

          1. LOL – nice apoplectic rant of rage there Malcolm

            Where do you think this protecting information thing is connected to me whatsoever? It appears that you are just lashing out at any and all of your “enemies” – EG, AA JJJ, anyone from whom you feel that your um “policy”/opinion has been slighted.

            It’s apparently NOT enough of an experiment to give you your own thread to CRP all over with non-law nonsense, you are compelled to CRP over this thread as well.

            You just cannot help yourself, can you?

    1. On that other thread, PRof Crouch engages in a wee bit of overstatement:

      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.

      See Taffas. – the “totally” part is like totally wrong.

      1. I see 6 chimed in on this (close to where he redefines PHOSITA to be based on real life people…

        The lack of appreciation of any actual law being “discussed” (and I dare include Prof Crouch) is astonishing.

        Is that what you were looking for Oh no?

        1. I see Malcolm also chimed in (but alas, Prof. Crouch has not recognized the limits of the Taffas case…. yet – I do hope that the case is covered in his curriculum)

          1. “I see Malcolm also chimed in (but alas, Prof. Crouch has not recognized the limits of the Taffas case…. yet – I do hope that the case is covered in his curriculum)”

            How long will it take you to understand that the government’s executive branch giving up in one case does not mean that it no longer has the duties that prof crouch noted?

      2. “See Taffas. – the “totally” part is like totally wrong.”

        I was wondering how long it would take you to have to respond to that.

    2. Sadly this greatly discourages anyone interested in actually learning anything useful or realistic about patent law, much less providing useful inputs.

      Yep.

      1. Hey, Oh no, NWPA, Fed Up, and anyone else that are interested in actual discussions, let’s all consider a little experiment: let the dust-kickers have the playground all to themselves.

        Let’s give them a week, shall we?

        1. “Lose anon and MM and the number of posts here drop 25-30% but the level of civility increases 100%. Dennis, when will you ever get that message?”

          new thread at 161, how is your message coming along Oh no?

            1. The thing is anon, we already know about “the actual law”. Here’s where we’re just having casual convo about such brosef.

              Not everyone has a stick quite so far up their ar se as you.

              1. LOL _ the “casual convo” is not about the actual law.

                For a legal blog, that’s kind of an important miss you got going there.

                Stick? Gee, I didn’t know that wanting to talk law on a legal blog involved having a stick….

              2. There’s plenty of other blogs out there, di psh it.

                No kidding. I can think of a couple where anti-software patent folk get their rocks off with zero understanding of law.

                You would fit in well there – so why are you here on a blog that aims to discuss real law?

      2. “To be clear, Dennis is equally to blame here.”

        So what are you going to do about it Oh no?

        I see your conversations on the new thread – 9 out of the about 143 at the moment, and I see ZERO improvement in conversation level.

        Quite in fact, with Malcolm and Ned’s combined 51 posts, the same old schlock and misrepresentations wall paper the thread. And how many times the pertinent law in the Act of 1952 is mentioned..

        That’s right: zero.

            1. I guess that obtaining any objective statement of what can and cannot be posted on this blog is like hoping that the Supreme Court would be willing to give up their power over writing patent law.

              C’est la vie.

        1. “Quite in fact, with Malcolm and Ned’s combined 51 posts, the same old schlock and misrepresentations wall paper the thread. ”

          And yet there are 0 negative ramifications to that, the most horrible thing of evar, having run entirely amok.

          1. LOL – the negative ramifications are there – your eyes are just clenched too tightly to see them

            Bur for you, there is a certain maxim, dealing with the state of bliss and a certain lack of, well, shall we say intelligence.

            So happy for you and your state.

            1. the negative ramifications are there – your eyes are just clenched too tightly to see them

              Preach it, Patent Jeebus!!!!!

              What a f uckin clown.

            2. “LOL – the negative ramifications are there”

              Do you mind telling us what those are? Or are they imaginary? Maybe they’re a secrit? Will a tinfoil hat help me pick up these “ramifications”?

              You are so insane.

              1. If by secrit you mean that you will refuse to open your eyes….

                Well, that’s a “you” problem that only you can fix 6.

                (no closely guarded anything needed)

  10. Tourbillion: no adult has yet offered a definition of “abstract”

    In fact, many people (myself and the courts included) have provided definitions and/or examples of what constitutes an “abstraction” in the patent law context.

    Here’s the dictionary definition of “abstract” for starters: “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

    Are you with me so far, TB? I hope so, for your sake and for your client’s sake. This is pretty basic stuff.

    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. 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. I see what happened – Malcolm’s originally insulting post was removed (he just reposted a less insulting version) – and all of the comments below were wiped out.

        Yet another sign of the real blight here….

        1. From the mirror comment on the new thread…

          MM – Thank you for this thoughtful comment. Hopefully this thread will be a good one.

          LOL – there is always hope. Of course, “good” like “abstract” not being defined means, well, it means absolutely nothing.

          So the reply that actually addressed what software is directly in relation to each of the ascribed “abstractions” is censored….

          Um why?

          Perhaps for the same “objective” reasons that comments to ABA model rules of professional responsibility are deleted?

          Love the fact that when an editor takes such an active role in shaping the content, that certain protections are forfeited.

          Won’t that be a wonderful day?

              1. Malcolm wants to troll this blog all on his own….

                Pretty sure you’re the only guy who relentlessly, endlessly and childishly smears everyone here who doesn’t talk about what you want to talk about in the exact manner that you believe it should be talked about. And your regular targets include Dennis.

                How does that not make you a prime example of a bl0g tr0ll? Explain that to everyone, Billy.

              2. Pretty sure you’re the only guy

                LOL – I am more than just “pretty sure” that you are (once again) dead wrong.

                Tell me again about the FACT that you have had more posts expunged (far more than all others combined) because of your, um, ‘tendencies’ (and that’s even given the appearance of some type of relationship between you and Prof. Crouch).

                It’s such an interesting story, Mr. Echo Chamber Tr011.

              3. (and you might just add in all the comments I add that have real substantive merit and discuss real issues of law)>

                Let’s compare that to your collection of comments of like nature: [ ___ ] (lol, yep, that would be a null set).

              4. you might just add in all the comments I add that have real substantive merit and discuss real issues of law

                Get over yourself, Billy.

                And please see a psychiatrist. You really need one.

  11. Tourbillion no adult has yet offered a definition of “abstract”.

    In fact, many people (myself and the courts included) have provided definitions and/or examples of what constitutes an “abstraction” in the patent law context.

    Here’s the dictionary definition of “abstract” for starters: “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

    Are you with me so far, TB? I hope so, for your sake and for your client’s sake. This is pretty basic stuff.

    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 general, 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. 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 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, easy stuff to understand.

  12. News:

    Akamai en banc status dissolved, referred to two remaining judges and third to be picked.

    link to cafc.uscourts.gov

    Cooper v. Lee, 1:14-cv-00672-GBL-JFA (IPR constitutionality) Eastern District of Virginia – (Alexandria)

    Justice defends constitutionality in paper 15.

    1. Exhaustion
    2. Bound by two prior cases, Patlex and Joy
    3. Stern v. Marshall supports reexaminations
    4. Patents are not common law rights

    Not a strong brief. On the merits, relies heavily on the fact that patents are not common law rights and therefor are public rights. If this were in fact the case, congress could withdraw patent litigation entirely from the courts.

    Basically the brief says, don’t think. Do no even try to understand the public rights doctrine, because if you do so, you will rule against us.

    1. “Not a strong brief. On the merits, relies heavily on the fact that patents are not common law rights and therefor are public rights. If this were in fact the case, congress could withdraw patent litigation entirely from the courts.”

      lulz.

      1. 6, no the brief really relies on a court not reading the cases on public rights. It quotes Murray Lessee, but in a very odd way. With a public right, congress can allow courts to decide cases, but it does not have to. The brief suggested the exact opposite, that the public rights doctrine permits congress to allow Art. I courts to decide cases otherwise under the purview of the courts.

        This failure was systematic of the brief, consistently getting the public rights doctrine backwards. Just for example, the brief starts with the presumption that patents are public rights and then says the Supreme Court cases allow adjudication of public rights in Art. I tribunals. But the Supreme Court cases are not about that, they are about tests for what is or what is not a public right. The brief never actually defines or states the test, nor applies it. All along, it simply assumes the result.

        1. The irony here Ned is delicious.

          I had a long piece that was inadvertently wiped out, but suffice to say, that you recognizing when someone else has warped case law – when you are the one so often doing so in our conversations is breathtaking.

        2. “6, no the brief really relies on a court not reading the cases on public rights. ”

          Well, you say that Ned, but me and you already discussed the whole “public rights” issue and you know where I stand.

          “This failure was systematic of the brief, consistently getting the public rights doctrine backwards.”

          That’s you getting the “doctrine” backwards. Sorry to burst upon your bubble my man.

          But, I wish you gl! I really do!

          “The brief never actually defines or states the test, nor applies it.”

          Pretty sure even wikipedia gives you the “test”. It isn’t really a “test” so much as it is a “definition” though.

          link to en.wikipedia.org

          1. 6, your link is a non sequitur.

            By law, patents are to be considered personal property.

            I know that you like to stand deep in the weeds, but you should be aware that just means that your positions are often untenable.

            1. “By law, patents are to be considered personal property.”

              Not really brosefus, the statute is very clear. Patents shall have the attributes of personal property, subject to a specific title. Even if I have the attributes of anon, say, psychopathy and OCPD, along with being ugly and quite smelly, on the morrow then I still will not be anon.

              You ain’t going to get around the right to sue people for infringement being a right that belongs to citizens but which is fully and unconditionally guaranteed as a legal right in and vindicated by political entities.

              But I wish you gentlemen gl in trying. For srs. I would like nothing more to observe and lulz at the proceedings. And it looks like I’ll have ample opportunity.

              1. 6, you missed the fact that it’s not just “personal property”, it’s “personal property” with the word “personal” in bold type.

                This is very important distinction. At a minimum, any convincing argument is going to require some extensive use of italics.

              2. “6, you missed the fact that it’s not just “personal property”, it’s “personal property” with the word “personal” in bold type.”

                Oh I’m sorry. My bad, that changes everything.

              3. 6,

                Can you explain how having the attribute of personal property logically means that the non-attribute of personal property of being a public right applies?

                Maybe it is just me, but logic appears to make what you want to say an impossibility.

                “Affecting” the public and being a public right are two very very different things.

                Anyone who has been to law school and recognizes the commerce power can easily defuse the silliness attempted with that citation.

              4. “Can you explain how having the attribute of personal property logically means that the non-attribute of personal property of being a public right applies?”

                Being a public right is not an “attribute”, it is just what we call certain things. Certain things which we’ve defined as being “public rights”.

                “Maybe it is just me,”

                It’s just you brosef.

                ““Affecting” the public and being a public right are two very very different things.”

                Agreed.

                Gl brosef.

              5. That’s not an answer 6.

                How does something with attributes of personal property be treated in a legal sense as something expressly NOT personal property?

                Do you even see the logical conundrum?

              6. “That’s not an answer 6.”

                Well it was an answer, but if you have yet another question then I guess that’s fine.

                “How does something with attributes of personal property be treated in a legal sense as something expressly NOT personal property?”

                I would do it “explicitly” if I were a judge. But that’s just how I would do it. But if you prefer, a given judge may do it “implicitly” for you if you like.

                “Do you even see the logical conundrum?”

                I see the “logical conundrum” that you’re trying to erect. And I don’t see it being all that difficult for a court to side step since it is, at best, illusory.

                Here’s some borgore to cheer u up!

                link to youtube.com

              7. 6,

                A “response” is not the same as an answer.

                An answer implies that your response is actually on point and addresses that point in a meaningful way.

          2. And, 6, even by that definition one can see why Scalia, always the deciding vote, continues to insist that the government must be a party.

            A public right involves the government acting in its sovereign capacity. It is the source of the doctrine of sovereign immunity.

            There is no right to sue the government. When it waives sovereign immunity, it can specify that non Art. III courts hear the cases. See, e.g., the Federal Claims Court, an legislative court, where Rader was a proud member.

            Patents are legal rights. Legal rights must be adjudicated in court. Start with Marbury v. Madison on that point.

            1. “A public right involves the government acting in its sovereign capacity.”

              You may not have noticed, but we’re doing that in every single infringement action. Or did you not notice where your right to complain to a court comes from? Do you think that 35 USC (for instance 271) sprang whole out of the ground?

              Do you seriously believe that Ned Heller, or your client, has the power to make someone pay up for infringement? You’re hilarious. It’s the gov brosef.

              “Patents are legal rights”

              Well the document itself may not be. It is more of a sheet of paper really. But they involve legal rights. Some very specific ones actually. Public ones in fact.

              “Legal rights must be adjudicated in court.”

              Gl with that argument. Srsly.

              1. 6, ““Patents are legal rights”

                Well the document itself may not be. It is more of a sheet of paper really. But they involve legal rights. Some very specific ones actually. Public ones in fact. ”

                I take it, 6, that you have not read Marbury v. Madison and Murray’s Lessee?

              2. “I take it, 6, that you have not read Marbury v. Madison ”

                You already had me read it 3 times. And it has nothing more to say on this issue than it did the first 3 times I read it at your behest.

                Idk about “Murray’s Lessee” but unless it has the magic power of redefining what a public right is then it isn’t going to help you either.

              3. Ahhhhhhhhh!’

                6, Marbury is about legal rights.

                Murray’s Lessee is the original case to discuss and define what a public right is. It is a must read case. It is still discussed and followed by all modern Supreme Court cases on the topic.

              4. “6, Marbury is about legal rights.”

                And that doesn’t mean a thing by itself.

                And the other case is a nice case. Doesn’t seem to be particularly pertinent though regardless of its supposed “definition” of the term. The term means what it means in the present day, and you’re not likely to get round that anytime soon.

                But I wish you gl.

            2. [t]he “public” also has a “paramount interest in seeing that patent monopolies . . . are kept within their legitimate scope.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806, 816 (1945) — Medtronic v. Morowski (Supreme Court 2014)

              Read the tea leaves, folks.

              1. Nice strawman.

                I think Judge Markey had a nice view of what “legitimate scope” means under the rule of law:

                “[o]ur concern here is with plain, simple disregard of the statute—
                evidenced in the promulgation of some words and phrases that muddy
                the decisional waters and other words and phrases that render the law
                as written by congress a nullity
                . In sum, when it comes to patent cases,
                the statute is the law—and court opinions containing language and
                concepts contrary to the statute are unlawful.

                Howard T. Markey, Why Not the Statute?, 65 J. PAT. OFF. SOC’Y 331, 331 (1983).
                (italic emphasis in original, bold emphasis added)

              2. MM, the Supreme Court has never had a majority where the government was not a party and the right involved was considered to be a public right.

                Scalia has consistently maintained his position throughout that the public rights doctrine is an aspect of sovereignty, and therefor the government must be a party.

    2. That is pretty cool Ned. If we could only get you away from the b@boon long enough to explain 101 to you, we might get you out of the monkey cage.

      1. Just replying to the latest post by NWPA… whatever happened to our discussion on the “chord progression patent”? I can’t find it after this thread got buried.

        If its lost, can you post your last reply here?

        1. Read the other thread at the top with the three claims. That illustrates my point about the hypo.

    3. We will look forward to seeing the amicus briefs from yourself and anon in this case, and their reception in the judicial real world, in view of your frequently expressed IPR unconstitutionality opinions herein.

      1. Dale,

        Sorry, but the natural rights position – interesting in a philosophical discussion – is distinctly not the law.

      2. Dale, I agree. Had parliament not passed the Statute of Monopolies, the common law courts would have found that pirating someone else’s invention to be an infringement.

        There was a doctrine in England, that a right without an otherwise recognized remedy is subject to writ mandamus. The California constitution recognizes that for every wrong there should be a remedy.

        It was just a matter of time until theft of invention would have been recognized.

  13. More than 300 of the comments on this blog are of no use to anyone and simply discourage any serious readers. A large number are merely childish exchanges of ad hominem attacks on other commentators from individuals with hostility issues, who apparently no longer have a spouse to abuse or a dog to kick. Sadly this greatly discourages anyone interested in actually learning anything useful or realistic about patent law, much less providing useful inputs.

    1. Your point (much like Oh no’s) is well taken,

      But see 24.1.3 and 20.1.1.3.1.2.2

      Then turn to the new thread at link to patently.wpengine.com

      Already 20 comments, with many based on the same typical misrepresentations of law.

      Let’s test Oh no’s theory: I will not post on the new thread – will Malcolm and Ned not post their typical CRP?

      (oops, too late)

    2. I will point out here (since I am leaving the new thread alone) that JNG’s post there (the Office seeking a way out) has a direct historical reference point: witness the “Just Say No – Reject Reject Reject era” and the touted “quality” initiatives as witnessed by the Taffas illegal power grab.

      We are still mired in the backlog created by the bogus rejections of that era.

      As I have mentioned in the past, take the unexplainable cliff dive graph of allowances from the historical levels down to the 40-30% level, flip the graph upside down and translate the graph to allow for time effects and you have a mirror graph of the backlog build up on each and every deck of the USPTO Titanic.

      History repeats.

    3. Fed Up, consider a filter so that posts from those who routinely engage in ad hominem attacks could be filtered.

      That presents a problem for me, as I have good conversations with the likes of anon and Night and “normally” they discuss issues with me calmly and with reason. We disagree, but usually with politeness.

      Ditto, MM, 6 and others of that camp. We have our disagreements, but also good discussions.

      So, my suggestion to you Mr. Fed Up, is to enjoy the freedom of expression here. This forum is a delight.

  14. “it left some gaps for lower courts to discern, such as the meaning of “abstract idea”..

    Well done Dennis. Class, this is a shining example of witty irony expressed through conspicuous understatement to make a satirical point.

    1. LOL – gaps may include driving your motorcycle over the Grand Canyon, expecting Justice Thomas to jump up and support your motorcycle with his pinkie.

    2. Because it’s really, really hard to figure out if a method for “ge nerating new data” that fails to recite a new machine in objective structural terms is abstract.

      Meanwhile, the adults are pressing onwards.

      We’re happy to keep explaining the issues raised by claims reciting only steps of “ge nerating data” to anyone — literally anyone on the planet — who is genuinely confused. Likewise with claims that protect information itself, regardless of how useful or non-obvious that information is, and regardless of whether those claims are limited to a particular field.

      And it’s free. Enjoy.

      1. fails to recite a new machine in objective structural terms is abstract.

        As already shared with you Malcolm, According to the Court, even a new machine recited in objective structural terms MAY STILL FAIL the Court’s “Gist/Abstract” sword.

        Maybe you haven’t followed the Alice case, what was stipulated by the parties in that case, and what the issue was before the Court in that case.

        Maybe you also haven’t been paying attention to what has been causing conniptions for Ned.

        Maybe you should pay attention.

        1. anon, are you sure both parties agreed that the computer hardware was “new.”

          That lack of newness was central to the case.

        2. According to the Court, even a new machine recited in objective structural terms MAY STILL FAIL the Court’s “Gist/Abstract” sword.

          Please give everyone an example of such a claim, Billy.

          1. The court is applying the test summarized in Comiskey:

            “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.” 499 F.3d 1365, 1377.

            The addition of old, but otherwise eligible subject matter does not change this result. Mayo. Alice. See, also, Hotel Security.

            1. nother class of statutory subject matter

              This is a gross misstatement of law.

              All you are doing here is twisting the law to fit your Ned-IMHO-Law version of the process category being less than a full category in its own right.

              This is nothing more than MoT – which as we both know is not a requirement, but only a clue. You cannot elevate “clue” to “test” to “requirement” as you so attempt.

          2. Abstract == nonstatutory

            That’s not a definition.

            There are several things that are nonstatutory that would not be deemed abstract.

            Your response Ned is pedantic. Are you trying to be obtuse?

  15. You can argue that they wrote the claim incorrectly, but the Supremes would then counter than cleaver draftmanship will not save you from 101. Of course then the Supremes just look at the claim to determine 101. This is circular reasoning on the part of the Supremes.

    Claims are suppose to define the invention, they are not the invention. A definition should not have extraneous information that does not add meaning. This is why I have been arguing that 101 should really be about the specification. Here patentee clearly an invention. Patent law is devolving back to the 1940s and now we are all talking about how many angels can dance on a pinhead.

    1. Dale,

      The word “invention” itself was purposefully designed out of the statutory law (as the word was being misused by the anti-patent judiciary) in 1952.

      And yes, the Royal Nine, addicted to their pre-1952 power have in effect wiped out the distinctions created by Congress with the 101/103 split and creation of the terms of patent eligibility and patentability.

      It is no small coincidence that the “champions” of the Royal Nine absolutely refuse to use the proper terminology.

      1. the “champions” of the Royal Nine absolutely refuse to use the proper terminology.

        Who exactly are you referring to when you say “champions of the Royal Nine”, and what do you mean by “proper terminology”?

          1. I could take a guess and say that you mean that the “proper terminology” is “eligibility” and “patentability”.

            But then who are these “champions”?

            Am I one of them? Ned? Dennis? Who?

            Just name some of them. That should be pretty easy, right? After all, you brought it up, Billy. Right?

              1. Is there anyone out there who can read Billy’s mind who can name a few of the people he’s referring to?

                Anyone?

                Seems to me Billy is just making stuff again that sounds good to his own ears, and then running away when pressed for obvious details.

                Surprise, surprise. But can all trust Mr. Ethics, right?

              2. just making stuff again

                UM, you have no clue as to how to determine self evidency from the many postings already on record?

                Are you sure that you are an attorney?

              3. pressed for obvious details.

                You want to claim the details are not obvious, then admit that the details are obvious…

                You really do BLOW at this Malcolm.

              4. self evidency

                There’s a lot that “self-evident” about you, Billy.

                Why is it so hard for you to identify an example of these “champions of the Royal Nine” you refer to? Who are these “champions of the Royal Nine.”

                Am I one of them, Billy? Is Dennis one of them? Is Jason one of them? Is Hricik one of them? Is Ned one of them?

                Who were thinking of when you wrote that sentence?

                Just spit it out, Billy. After all, you brought it up.

              5. You seem confused between the concept of “hard to identify” and the notion that the answer is already self evident (which runs to the opposite of “hard to”)

                You do seem easily confused by such things.

              6. the answer is already self evident

                Sure it is, Billy.

                Can anybody help Billy out here with his sudden inability to speak English and spit out his thoughts? NWPA? Tourbillion? Oh No? How about David Hricik? C’mon, guys. Help out your pal. Identify these “champions”. How about just three of them? It was important to Billy to insult these people. Now it seems that they don’t actually exist.

                C’mon guys. Help your pal Billy out. He’s helped you so much, after all. Right?

          2. You want to claim the details are not obvious, then admit that the details are obvious…

            Uh … no, Billy. Basic English seems to really cause problems for you. It’s the questions that are obvious, not the answers.

            That’s why it’s odd that you seem to have so much difficulty answering them. I honestly have no idea what you’re driving at because the term “champions of the Royal Nine” is a bit vague. And yet you ascribe some very specific characteristics to these people.

            Just name a few, Billy. What’s the problem, exactly? Are you afraid or ashamed? Or did you just get busted again engaging in your typical path 0l0gical l y i ng behavior?

            Just step up to the plate, Billy. Just this one time. Step up and try not to whiff. This is another softball for you.

              1. I will just blame anon.

                Nobody’s “blaming you” for their inability to read your mind, Billy. We’re all very used to your sad games where you make specific claims and and then fail to back up your claims. You do this regularly. And then you pretend that everyone does it.

                Ask David Hricik if your behavior is “ethical”. You seem to have great respect for David’s opinion, or you did at one time. So go ahead and ask him, Billy.

    2. When the Supreme Court points out that “clever draftsmanship is not going to save you from 101″ (to borrow your paraphrase), all they are saying is that throwing in a term like “structure” or “manufacture” isn’t going to rescue your claim if the claim still protects ineligible subject matter. They certainly aren’t suggesting that people stop drafting claims because everything is ineligible.

      Perhaps if you are busy trying to please “innovators” in the so-called “computer implemented” “arts” you may have failed to notice that reams of claims are being granted and filed all the time that have zero chance of being found ineligible under 101. It’s true. Typically these claims recite some novel, non-obvious structure using objective structural terms, or they describe a new process that achieves a physical transformation of matter.

        1. Billy: The case itself is a good read, because the judges – in denying the arguments made by the patent holders – clearly lay out that a claim that would read on what the patent holders thought were contained in the claims would be to patent eligible subject matter.

          With respect to the rejected claims to a “data structure”, please show everyone where the re-written eligible claim is “clearly laid out”, and explain to everyone your theory of eligibility for that claim.

          Thanks, Billy.

          1. You keep on asking for more things when you are not in a position to ask.

            Your post here – in reply to my comment about your canard of wanting structure-ONLY claiming is inapposite and off point.

            1. you are not in a position to ask.

              In fact I’m 100% sure I’m in a position to ask you these questions, Billy.

              How do I know that? Because I just asked you these questions, Billy.

              Basic stuff. Just how st0 0pit are you, Billy?

              1. Your logic is (of course) a fail.

                Basically, it comes down to you being able to ask off-point questions because you can ask off-point questions.

                Um, sure, that’s a nice strawman you build with your ability to ask off-point questions, but it is, well, off-point.

      1. achieves a physical transformation of matter.

        Again with the canard of MoT.

        Do you still not understand the difference between a clue and a requirement?

        1. Billy: The case itself is a good read, because the judges – in denying the arguments made by the patent holders – clearly lay out that a claim that would read on what the patent holders thought were contained in the claims would be to patent eligible subject matter.

          With respect to the rejected claims to a “data structure”, please show everyone where the re-written eligible claim is “clearly laid out”, and explain to everyone your theory of eligibility for that claim.

          Thanks, Billy.

            1. It’s not “dissociated” at all, Billy.

              You’ll figure that out eventually. Or maybe you are even st 0 0piter than we all thought.

              Go ahead, Billy. Step up to the plate.

    3. Dale, had the device profile been claimed in a process that improved picture quality on a display or printout, I think Diehr would apply and the subject matter held eligible.

      Simply claiming the ineligible method or data profile for use in an otherwise statutory process seems to fly in the face of Flook, does it not?

      But, I would agree that the problem here is primarily a claim drafting problem. Whoever misled the claim drafters to draft claims in this way, clearly in violation of existing Federal Circuit cases such as Warmerdam, should share responsibility here when the client asks why he lost his patent.

      Finally, the PTO should share the blame for issuing these claims. What were they thinking?

      1. I don’t see how anyone can think the Supreme Court is operating on logic. Alice and many other recent decisions are pure seat of the pants, pick you answer and make up an excuse.

        1. I don’t see how anyone can think the Supreme Court is operating on logic.

          You should probably get out of the business then, Dale, because all this was explained to you numerous times over the years.

          You either don’t want to understand or you’re too stoo pit to follow along. Take your pick.

    4. I am still surprised that a court can render an opinion on eligibility without claim construction. Digitech argument that someone having ordinary skills would interpret “a device profile for describing properties of a device in a digital image reproduction system” as comprising a tangible readable media was discarded without a claim construction. The only argument I found in the opinion was that the claims are not so limited, as if it is inconceivable that claim construction may introduce limitations that are not literally in the claims. I have tried for the last five minutes to use abstract ideas with a picture taken with my phone camera, and until now nothing has happened. Honestly, I don’t think a PHOSITA would have thought that the invention is what Judge Reyna says it is.

      By the way, I am even not sure Judge Reyna was entirely convinced himself. Note for example that he felt important to transforms the claim language “a device profile comprising [data]” into “a device profile comprised of [data]”.

      Why can’t we see on these cases a solid argument of patentability based on a claim construction, and citation of prior art? The claimed invention looks like a record of device calibration data for images. It could be eligible, but I don’t think it was patentable.

      1. It appears “critical” to the discussion to obfuscate the difference between patent eligibility and patentability.

        Can you guess why?

      2. PiKa,

        When you can use the “Gist” portion of the “Gist/Abstract” sword, there is no need for claim construction, since any claim construction that gets in the way of the desired result is eliminated as mere scriviner tricks.

  16. Billy: The case itself is a good read, because the judges – in denying the arguments made by the patent holders – clearly lay out that a claim that would read on what the patent holders thought were contained in the claims would be to patent eligible subject matter.

    With respect to the rejected claims to a “data structure”, please show everyone where the re-written eligible claim is “clearly laid out”, and explain to everyone your theory of eligibility for that claim.

    Thanks.

    1. I would anon has picked up on this:
      above claim thus recites an ineligible abstract process of gathering and combining data that does not require input from a physical device

      this:
      Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible

      and this:
      contrary to Digitech’s argument, nothing in the claim language expressly ties the method to an image processor … it does not claim the processor’s use of that profile in the capturing, transforming, or rendering of a digital image

      A lot of discussion about what the claims do not require (i.e., a machine) if the inclusion of the machine to the claims doesn’t matter.

  17. Oh No: the result was predictable based upon In re Warmerdam, which was decided 20 years ago and prior to the filing of this application. The only hurdle that Federal Circuit needed to overcome was ignoring the limitations of preamble — for which there is plenty of case law to rely upon.

    Thanks, Oh No, for reminding everyone again about this old case (penned by J. Plager) which does appear to be directly on point (at least with respect to the “data structure” claims). There are some fatal flaws with the underlying reasoning in Warmerdam, however, which may account for the Federal Circuit’s reluctance to rely on it too heavily. The case may be found here:

    link to digital-law-online.info

    Here are representative claims:

    1. A method for ge nerating a data structure which represents the shape of [sic] physical object in a position and/or motion control machine as a hierarchy of bubbles, comprising the steps of:

    first locating the medial axis of the object and

    then creating a hierarchy of bubbles on the medial axis.

    6. A data structure ge nerated by the method of any of Claims 1 through 4.

    This passage from the opinion, for example, seems to be at odds with contemporary thinking (note especially the last couple of sentences):

    Warmerdam … argues that the claims are broad enough to cover methods which involve physically measuring the contour of the object. Thus, according to Warmerdam, the claims do not essentially recite a mathematical algorithm as required by Ex parte Logan, 20 USPQ2d 1465 (Bd. Pat. App. & Inter. 1991), but only incidentally do so.

    Warmerdam has a point. Claim 1 is broad enough to cover methods for locating the medial axis of an object that include physically measuring the contour of the object with a ruler or simply by ‘eyeballing’ the object, and then creating the bubble hierarchy by manually drawing it. In that sense, it does not necessarily recite the solving of a mathematical algorithm. The fact that the claim covers methods which are essentially mathematical in nature, as discussed infra, is not dispositive. Claims should be evaluated by their limitations, not by what they incidentally cover.

    In fact, when it is demonstrated that a patent claim protects ineligible subject matter — e.g., a mathematical method — that finding is dispositive as to the 101 question. The claim is ineligible and it doesn’t matter that the claim can be practiced in some “non-mathematical” manner as well.

    Also interesting is the CAFC’s accurate summation of In re Grams, a case they clumsily swept under the rug when they tried to resurrect Prometheus’ claims:

    The body of claim 1 recites the steps of “locating” a medial axis, and “creating” a bubble hierarchy. These steps describe nothing more than the manipulation of basic mathematical constructs, the paradigmatic “abstract idea.” As the Supreme Court has made clear, “ [a]n idea of itself is not patentable,” Rubber-Tip Pencil Co. v. Howard, 20 U.S. (1 Wall.) 498, 507 (1874); taking several abstract ideas and manipulating them together adds nothing to the basic equation.

    Warmerdam’s argument that the claim implies physically measuring the contour of an object misses the point. As a whole, the claim involves no more than the manipulation of abstract ideas. Moreover, from the standpoint of Section 101, a physical measurement step is indistinguishable from the data gathering step which we held in In re Grams, 888 F.2d 835, 12 USPQ2d 1824 (Fed. Cir. 1989), was insufficient, standing alone, to impart patentability to a claim. Id. at 840, 12 USPQ2d at 1829.

    Readers will recall that the “trick” the CAFC used in Prometheus (Judges Lourie, Michel and Clark) to distinguish In re Grams was to declare that Prometheus’ claims were for a method of treating patients, in spite of Prometheus’ admissions on the record that one need never treat the patient to infringe the claims at issue.

    1. I think if MM can call anon “Billy,” that I should be allowed to call MM a b@boon.

      1. You can call me whatever you like. You’ve been doing so for years.

        Meanwhile, the arguments that I make are the arguments that are winning, while your “arguments” about, e.g., the sanctity of functionally-claimed software patents, are continually being exposed as a self-serving sham.

        [shrugs]

        1. Well, if you remember, you used to threaten all sorts of violent acts against me if I didn’t stop calling you a b@boon. I am glad to see that your simian nature has calmed. I’d guess that you are nearing the end of your life span.

          My arguments have been expressed well by some on the Fed. Cir. and are the arguments of the 21th Century information age. Your arguments are the start of the Dawn of the Re-Birth of the Iron Age.

          1. you used to threaten all sorts of violent acts against me if I didn’t stop calling you a b@boon.

            Sounds like a huge pile of b.s., gramps. Please show everyone the threads you’re thinking of so we can all see these oh-so-threatening threats and the context in which they allegedly occurred.

            Otherwise, maybe pour yourself some metamucil and s t f u for a change.

              1. NWPA,

                He.
                Just.
                Does.
                Not.
                Care.

                To him, it simply does not matter how many times his posts are expunged for being insulting. He is a runaway trainwreck.

              2. Love it.

                Mr. “Ra pers and Ki llers” himself accusing me of making “violent threats” against him. Then he slinks back under his greasy rock when asked to back up his b.s.

                Seriously, gramps: take a vacation. Or a nap. Maybe get yourself one of those little yappy dogs and take it for a walk. But don’t make a f 0 0 l out of yourself on behalf of some doomed United States of Patents vision quest.

              3. Comparing you to not nice people is not making threats to you.

                Right. Nobody claimed otherwise.

                Still can’t back up your claims, gramps? You’re going to play Billy’s favorite game of just making stuff up and smearing people with it? Seriously?

                C’mon, gramps. Back up your claim. Let’s see those “violent threats”. And let’s see all the context.

                Make everybody’s day, gramps.

          2. Your arguments are the start of the Dawn of the Re-Birth of the Iron Age.

            Nobody on the planet falls for this gar bage, gramps.

            What’s next? Are you going to argue that the Revolutionary War was fought to protect patent attorneys who draft functionally-claimed computer-implemented j nk?

            The smell of desperation is getting pretty unbearable. I told you guys to find some new scripts but all you’re doing is doubling down on the old ones.

            You noticed that those old ones didn’t work too well, right?

            1. You seem rather irritated. I think the b@boon name bothers you a lot.

              “Gramps”? I am probably younger than you.

              And seriously MM just because a court declares what science is doesn’t make it so. I know we are dealing with judges that have no science training and no patent law background (most of them). So, anything they say should be taken with a grain of salt. But, I know you medieval folk would like to have the earth back as the center of the universe. I am sure that the lot at the Fed. Cir. would have no trouble holding that the Earth sits in the center of the universe if it meant they could invalidate an information processing patent (and uphold their pledge to Obama.)

              B@boon. B@boon.

              1. I am sure that the lot at the Fed. Cir. would have no trouble holding that the Earth sits in the center of the universe if it meant they could invalidate an information processing patent (and uphold their pledge to Obama.)

                Try to believe it, folks.

                I am probably younger than you.

                You act like a ten year old who thinks he’s John McCain.

    2. Good Post.

      MM, do you think the reason the Feds. did not cite or rely on Warmerdam was because it was overruled by In re Bilski? See, fn. 17: “Therefore, in Abele, Meyer, Grams, Arrhythmia Research Technology, Inc. v. Corazonix Corp., 958 F.2d 1053 (Fed.Cir.1992), and other decisions, those portions relying solely on the Freeman-Walter-Abele test should no longer be relied on.”

      1. from the wiki:

        Its use faded between 1992 and 1999 and was dead by 2008.

        This test was largely done away with by the Court of Appeals for the Federal Circuit with In re Alappat

        One noted issue with the test is that it dissects the claims into elements instead of analyzing the claims as a whole as required by Supreme Court precedent.

        But to Ned’s credit:

        The test appears dead with In re Bilski.

  18. Oh No: the result was predictable based upon In re Warmerdam, which was decided 20 years ago and prior to the filing of this application. The only hurdle that Federal Circuit needed to overcome was ignoring the limitations of preamble — for which there is plenty of case law to rely upon.

    Thanks, Oh No, for reminding everyone again about this old case (penned by J. Plager) which does appear to be directly on point (at least with respect to the “data structure” claims). There are some fatal flaws with the underlying reasoning in Warmerdam, however, which may account for the Federal Circuit’s reluctance to rely on it too heavily. The case may be found here:

    link to digital-law-online.info

    Here are representative claims:

    1. A method for generating a data structure which represents the shape of [sic] physical object in a position and/or motion control machine as a hierarchy of bubbles, comprising the steps of:

    first locating the medial axis of the object and

    then creating a hierarchy of bubbles on the medial axis.

    6. A data structure generated by the method of any of Claims 1 through 4.

    This passage, for instance, seems to be at odds with contemporary thinking:

    Warmerdam … argues that the claims are broad enough to cover methods which involve physically measuring the contour of the object. Thus, according to Warmerdam, the claims do not essentially recite a mathematical algorithm as required by Ex parte Logan, 20 USPQ2d 1465 (Bd. Pat. App. & Inter. 1991), but only incidentally do so.

    Warmerdam has a point. Claim 1 is broad enough to cover methods for locating the medial axis of an object that include physically measuring the contour of the object with a ruler or simply by ‘eyeballing’ the object, and then creating the bubble hierarchy by manually drawing it. In that sense, it does not necessarily recite the solving of a mathematical algorithm. The fact that the claim covers methods which are essentially mathematical in nature, as discussed infra, is not dispositive. Claims should be evaluated by their limitations, not by what they incidentally cover.

    In fact, when it is demonstrated that a patent claim protects ineligible subject matter — e.g., a mathematical method — that finding is dispositive as to the 101 question. The claim is ineligible and it doesn’t matter that the claim can be practiced in some “non-mathematical” manner as well.

    Also interesting is the CAFC’s accurate summation of In re Grams, a case they clumsily swept under the rug when they tried to resurrect Prometheus’ claims:

    The body of claim 1 recites the steps of “locating” a medial axis, and “creating” a bubble hierarchy. These steps describe nothing more than the manipulation of basic mathematical constructs, the paradigmatic “abstract idea.” As the Supreme Court has made clear, “ [a]n idea of itself is not patentable,” Rubber-Tip Pencil Co. v. Howard, 20 U.S. (1 Wall.) 498, 507 (1874); taking several abstract ideas and manipulating them together adds nothing to the basic equation.

    Warmerdam’s argument that the claim implies physically measuring the contour of an object misses the point. As a whole, the claim involves no more than the manipulation of abstract ideas. Moreover, from the standpoint of Section 101, a physical measurement step is indistinguishable from the data gathering step which we held in In re Grams, 888 F.2d 835, 12 USPQ2d 1824 (Fed. Cir. 1989), was insufficient, standing alone, to impart patentability to a claim. Id. at 840, 12 USPQ2d at 1829.

    Readers will recall that the “trick” the CAFC used in Prometheus (Judges Lourie, Michel and Clark) to distinguish In re Grams was to declare that Prometheus’ claims were for a method of treating patients, in spite of Prometheus’ admissions on the record that one need never treat the patient to infringe the claims at issue.

  19. Posted below, but since this is truly a separate topic, posted here as well.

    The topic is Prior User Rights:

    We were attempting to get a broad prior user right passed by congress.

    Interesting – and a separate topic altogether.

    I wonder if people recognize what it was that you were up to.

    I wonder if people recognize exactly how devious the prior user right is.

    Let’s take a moment and look at the current prior user right from the AIA (fully recognizing that your attempts may have been different).

    The current prior user right is a submarine tactic that lessons the value of patents, and serves the benefit of those who do not want to share like other users of the patent system.

    The current prior user right only surfaces after someone else goes through the trouble and jumps through all of the hoops to obtain a valid US patent.

    The current prior user right is a defense to that rightful patent owner attempting to enforce his rightful patent.

    The current prior user right inoculates not only the holder of the prior user right, but inoculates the prior user right holder’s customers, opening up the ENTIRE secondary market to protection against the rightful patent holder (the rightful patent holder obtains no benefit and yet those goods sold by the prior user rights holder are deemed exhausted as to the rightful patent holder).

    The current prior user right goes WAY too far in removing the “stick” aspect that has served the patent system well. Both the carrot and the stick are important aspects of promoting the progress by having a vigorous patent right. Those not wanting to share love the prior user right because, not only do they now not have to share, not only do they not have to worry about someone else who is willing to share, they enjoy the free-rider effects of that other person’s willingness to share to keep out others from the market, since the rightful patent owner’s patent is still valid against those others without the prior user right.

    That you were active long ago in such an effort is really not all that surprising Ned.

    That you seem oblivious as to why this is NOT a good thing is also, not all that surprising.

    It is aspects like this that belie your so-called profession of being an advocate for the patent system. With friends like this, who needs enemies?

    1. Billy: I wonder if people recognize exactly how devious the prior user right is.

      I’m going to go waaaaaay out on a limb and guess that nearly everybody doesn’t see prior user rights as being particularly “devious.” Certainly nothing you’ve said indicates that prior user rights are “devious”.

      The current prior user right is a submarine tactic that lessons the value of patents

      Oh noes! We mustn’t ever lesson the current value of patents or …. or else what, Billy? What terrible fate awaits us?

      1. again with the “billy” reference….?

        Prof Crouch – what possible benefit do you see in this?

        And Malcolm, you really do not see the devious nature of free-riding….?

        Really?

        Try opening your eyes Malcolm.

        1. Malcolm, you really do not see the devious nature of free-riding….?

          I do not agree that prior user rights constitute a “devious” form of “free-riding”.

          I do agree that prior user rights can “lessen the value” of patents. Seems like a reasonable trade-off, though.

          1. My post at 24.1.3 crossed in transit.

            Thank you for at least attempting to add something discussable.

            Do you not see any notion of “free-riding” in the prior user right?

            Objectively – free riding is present (whether you see it or not is a different question). That such exists is one of those objective facts that should not be attempted to be obfuscated merely because a poster with the moniker of “anon” points out the objective fact.

            What is the “trade-off” that you see?

            Why is that trade-off “reasonable”? What is reasonable about it?

            It is unclear what you mean by the phrase. How is a lessened value of a patent offset – and by what?

            The only possible offset here is that a party unwilling to share and promote the progress is protected against those who are willing to share and promote the progress.

            Keep in mind that Prior User Rights remain hidden until the party with a validly granted patent right goes to enforce that valid patent right. It is only then that the value of that right is effected negatively by the hidden submarine nature of the Prior User Right. Up to that point, the holder of the Prior User Right has offered nothing to society that promotes the progress or otherwise contributes to the value that the patent system was created for.

            Do you think that the patent system should be abolished altogether? (this question is rhetorical)

            1. Billy: That such exists is one of those objective facts that should not be attempted to be obfuscated merely because a poster with the moniker of “anon” points out the objective fact.

              Get your meds adjusted, dweeb.

              1. the holder of the Prior User Right has offered nothing to society

                That depends on the rights being asserted by the prior user. For example, if the prior user employs an undisclosed method (later claimed by a third party) to make a stronger product or a cheaper product that it offers for sale to the public, the holder certainly has “offered something to society” — far more than many (most?) patent applicants ever offer, in fact.

                Was that really so hard to understand? This is just one of your many major malfunctions, Billy: you just can’t seem to figure out when you’re off in the weeds. Meanwhile, you refuse to squarely address or admit incredibly basic fundamental facts even when they are shoved right under your nose. On the contrary, if those facts aren’t helpful you just fire up your random insult machine and pretend that “everybody does it.”

                But that’s just not true, Billy. You’re the tx rd in the punchbowl. It’s always been the case. You just tr 0ll here because you’re scared about where reasonable people might take your beloved softie woftie claims. And you should be scared. But for the love of gob please get your meds adjusted and make some coherent arguments for a change.

              2. First, thanks again for attempting to pull back from your usual empty tricks and post something to discuss.

                I do appreciate that. Even if the attempt ends up in being just a miserable FAIL.

                Was that really so hard to understand

                You quite missed the point that this FAILS to accord with why we have a patent system.

                The matter is not one of “understanding” on my part – it is understanding on your part.

                We have a patent system to promote the progress in the sense of capturing that secret knowledge. Whether or not the public can “use” the fruits of the secret knowledge is NOT a consideration – not when it comes to a discussion of patent law.

                What it comes down to is that the rights being asserted by the Prior User are not anything new or added – remember, the Prior User Rights only come into play as a defense to an already VALID granted patent and that patent holder already enriched society by being willing to share.

                Any and all rights asserted by a holder of Prior User Rights has ZERO added benefit above those already provided by the person willing to partake in the patent system.

                There is NO gain. All that happens is that the person unwilling to share is protected from the person willing to share.

                You ignore the context of the discussion on the legal principles in its entirety. You ignore the timing of the legal actions.

                You ad hominem about “off in the weeds” is thus seriously misplaced. Your entire last two paragraphs also add nothing to the conversation.

                Now, if you were to take a different approach, you might possibly add some value.

                For example, instead of ignoring the free-rider effects, you might advocate that a system of open publication be created. Free of charge, anyone can publish anything that they might fear to at some later time fall into the patent world, and become the subject of a valid patent of someone else willing to share and gain the benefits of that sharing that are part and parcel of the patent system.

                Such a system would remove the excuse of “cost” from those unwilling to share. Such a system would also greatly enhance later patent grants by providing a rich prior art library.

                So what would be the drawback?

                Ah yes, those not wanting to share would be inconvenienced by having their secrets out in the public, and those secrets – AS SECRETS – have competitive value.

                But in the bigger picture, is this not merely a different avenue of “grifting”?

                So compare these two “systems” The system of keeping things secret and the system of rewarding those who willingly share.

                Open your history books in order to help you understand the comparison.

                And before you let loose yet another stream of unprovoked (and unwarranted ad hominem), THINK a bit about why we have the patent system at all. Let’s see if you can show your understanding of that concept. After all, you profess to work in the system of providing people this benefit – one would hope that you recognize the legitimacy and worth of having the system in the first place.

              3. this FAILS to accord with why we have a patent system.

                I don’t see how that can be the case given that prior user rights are expressly part of our patent system.

                If you believe that the existence of prior user rights is going to lead to a decrease in the rate at which progress in the useful arts is promoted, you are going to need to gather some evidence and try much harder to present a compelling argument.

                You’re not preaching to the choir, after all. You need to persuade people who are not already invested in the patent system — people very different from you — to get on board with your theories about who is “free riding” and who isn’t. I suspect most people believe that the worst “free riders” out there are the wealthy patent attorney/”small inventor” types who do absolutely nothing except file and assert patents against entities who are successfully innovating and producing products that people wish to buy.

                Good luck, Billy.

              4. Being a part of the patent system is a non sequitur to your understanding the timing and nature of those rights – and what is added and what is not added.

                I need no further evidence, nor further “compelling argument” as you have offered nothing in response to the factual and legal positions that I have put in front of you.

                Your last paragraph is (again) wandering into the weeds and attacking something outside the topic of our conversation.

                Please stay on point.

              5. “I do appreciate that. Even if the attempt ends up in being just a miserable FAIL.”

                Do you not see how you “reward” him for “actually posting something to discuss”? You tell him his post is a “fail”. Tell him he’s wrong. You can’t just say you disagree. You have to show off your ownership of the truth.

                This. Causes. Social. Strife. I.e. Interpersonal. Conflict.

                If you learned how to have a conversation then you would have someone to talk to and converse with like a normal person.

              6. You are confused 6.

                The “thank you” was a reward for the attempt.

                The put down was warranted because he lost his way quickly and reverted back to his vap1d ad hominem.

                Pay attention.

              7. You have to show off your ownership of the truth.

                LOL – you seem to want to make it some type of “crime” that I have the better legal position.

                This is a “you” problem – and something that you attempt to project to me.

                You might share this with your shrink and have her explain to you that sometimes others really do have a better grasp on legal concepts and have objectively better positions.

              8. “There is NO gain. All that happens is that the person unwilling to share is protected from the person willing to share.”

                I should think that the “gain” for the public was the disclosure. Or are we not considering that “gain”?

              9. You are not following closely enough 6 – the zero gain aspect is from the vantage point of the party claiming the prior user right – for that person, there is no disclosure.

                But thanks for proving my point.

              10. “You are not following closely enough 6 – the zero gain aspect is from the vantage point of the party claiming the prior user right – for that person, there is no disclosure.”

                I’m aware. I’m also aware that there is still “gain” being made by the public/congress (you know, the one granting these “rights” in the first place).

              11. Oh yes, the “fact pattern” is supar hard to follow! I just can’t follow it!

                Look, you said there was “no gain”. There obviously is a “gain” to the public and congress. And no, it was not provided by the prior user. Yes, the prior user is protected from the person that disclosed. If that is your “point” then fine. But if it was then maybe you could have simply not said there was no gain. But if you have point besides that then fine. Go ahead and make it soopar clear for us all. Maybe be brief.

            2. “Objectively – free riding is present (whether you see it or not is a different question). That such exists is one of those objective facts that should not be attempted to be obfuscated merely because a poster with the moniker of “anon” points out the objective fact.”

              ^It’s all one big emotional argument. You cannot respond with “facts” or “logic” and expect anything to change. They’re invalid from the get go. He feels like they’re “free riding”, therefor, to him, they “objectively” are. Further, any free riding is offensive to him regardless of whether it is in fact harmful to anything (outside the amount of money the person that discloses and files on the invention eventually can collect).

              You can point out that in order to be a “prior user” they in fact developed and used whatever is being accused of infringing before it was filed in the patent office and/or invented by the person that filed all day long. They did that “on their own” without “riding” on anyone else’s work, freely or not. Still, they’re still “free riding” to him.

              You could point out to him that even according to the people that made up the term “free riding” not all of it is bad at all. He doesn’t care. It’s all “a problem” to him. If there is “free riding” then necessarily there is “a problem”. Free riding = bad. Period.

              It’s all emotions. And the best (or worst) part is, he can’t even understand that.

              “LOL – so much for conversation”

              Yeah no conversation can be had. Because you sit around and make emotional arguments to support your ownership of the Truth. You can’t have a conversation with a person like this. You can only attempt to make them feel better about what is happening. And in a situation like the one under discussion that is quite impossible.

              1. ^It’s all one big emotional argument

                Not at all. There is no emotion in recognizing free-rider effects.

                Development by others is a non sequitur – in fact, you are attempting an emotional ploy by trying to draw a “it’s not fair” feeling that someone else developed something on their own. Infringement is a strict liability condition – developing on your own is in apposite to the discussion.

                he can’t even understand that.

                LOL – I perfectly understand what you are attempting to do. Your attempt fails though. Do you understand that?

                Yeah no conversation can be had

                Another error on your part. The comment about no conversation was directed to the empty and vap1d ad hominem reply. To that, there is no conversation. BUt when Malcolm does more than merely post vap1d ad hominem, at least a chance of conversation is enabled.

                Maybe you missed that.

                Maybe you should not be so closed minded as to the content of the posts. It appears that (once again), your belieb system is interfering with your ability to absorb the conversation.

                And much like the reference you supplied by Rich, you seem unable to appreciate anything outside of your pre-ordained view.

                Changing this is fully in your power 6 – but you need to want to change.

              2. “Not at all. There is no emotion in recognizing free-rider effects.”

                1. Regarding the emotional argument I’m not talking about the “recognition” of free riding or the effects thereof. I’m talking about your argument regarding free riding, itself, being “objectively present” as well as the argument regarding the ramifications of such free riding being present. And that most certainly is an emotional argument. Just the same as a million others made by a hundred million women day in and day out. You’ll probably never understand this, so don’t even bother trying Mr. psychopath.

                2. You did not say “free rider effects”. You said that free riding was present. Not the mere “effects” thereof.

                Even so, I don’t see any “effects” coming from this supposed “free riding”. If you’d like to tell us about all these “effects” that you’ve “recognized” then go ahead.

                3. Your changing your story to “effects” starts to peel back the emotional onion. You feel like you’re detecting the “effects” (here you’re emotionally understanding/detecting that they’re there) and then implying that necessarily free riding itself is present, and is what is causing these “effects” that you’ve “recognized” (i.e. “felt/detected via feelings”).

                “Infringement is a strict liability condition”

                Only because of the lawl re re. We’re discussing currenlty whether or not that should be changed. Get on board the policy train!

                “I perfectly understand what you are attempting to do. Your attempt fails though. Do you understand that?”

                I understand that I’m making some headway in explaining your behavior to others on this board. And they’re starting to take note. And they’re starting to understand why you can’t be reasoned with or logically persuaded that one of your “objective” “observations/recognitions/etc” was just plain wrong. They’re never “wrong” as in “wrong wrong”, to you, nor can they ever be, because they’re all just your emotions, or are things dictated by your emotions. No doubt this is a big part of why you own so much Truth.

                “Another error on your part.”

                It’s all another error on my part! Yep! Errors errors errors! I’m so “wrong”! The reason nobody wants to, or can, converse with anon is because they’re all so bad at it, or have an agenda, or x, y, or z but it can’t be that anon is simply OCPD out the ar se and drives people away with his ownership of the truth etc! NOPE! Can’t be that!

                “BUt when Malcolm does more than merely post vap1d ad hominem, at least a chance of conversation is enabled.”

                Yes we know anon, but in case you haven’t noticed, MM routinely posts more than “vapid ad hominem” to other posters. The reason he does to you is not because he just ha tes you, or his super agenda just isn’t strong enough on the merits or whatever, it’s because he can tell when he’s reached an impasse with you. When your ownership of the truth has effectively ended the conversation anyway, that’s an impasse. To MM, this is frustrating, and he calls you a name or whatever. It really is that simple brosef.

                “Maybe you should not be so closed minded as to the content of the posts. ”

                I’m not “close minded” about prior user rights, or “free rider” “effects” coming therefrom. Frankly I don’t much care about “prior user rights” but I’m also not convinced that there is some magical “free rider”ing going on or any “effects” thereof. And you won’t be persuaded by the logic that led me there, because you’ve already “felt” that the “effects” are there, and implied that free ridering is (well “would be”) going on, so there’s no point in our arguing about it.

                In any event, good day to you sir.

              3. ust the same as a million others made by a hundred million women day in and day out

                You misogynistic tendencies are showing.

                You are clearly wrong in your portrayal of what is and what is not an emotional argument – and your increasing emotion is evidence of that. The throw in of “Mr. Psychopath” does not bolster your position – it greatly weakens it.

                As to “getting on board the policy train,” you should be aware of the hierarchy of effectiveness of legal discussions, and that “policy”/opinion is at the bottom. I decline your invitation to go to the bottom, when my position based on law and fact is so much more superior.

                You will just have to deal with the fact that I have a superior position.

                And if you have an error – you have an error – throwing a conniption and accusing others of Med issue is no way of responsibly dealing with your error. In fact, your response fits one of the symptoms that you have shared from your psycho book. You might want to discuss this with your therapist.

                When you have calmed down, feel free to come back and try to learn some more.

      2. Wouldn’t it be nice if an actual conversation ever broke out on the legal topics being discussed as opposed to the trainwreck ad hominem?

        If you don’t like the word “devious” substitute another – but join the conversation as to the propriety here of one party unwilling to join in the sharing aspect of the the patent system gaining benefits at the expense of another party that is willing to join in on the sharing aspects of the patent system.

        Your comment concerning the lessened value is difficult to discuss. Do you see that patents have “too much value” in gen 3ral? Do you think that the fundamental nature of exclusivity should be (radically) changed? Aside from the pure snipe, your comment adds nothing to the conversation. Nothing. How then can any conversation ensue from your “addition”?

        1. This is a thread about a case holding that “data structures” and ge nerically claimed methods of ge nerating them are ineligible under 101 because, in part, “data structures” aren’t structures at all but just ineligible data.

          Remember when I asked Billy to tell everyone how he would advise his clients who want to protect data in a certain context (e.g., data on a hard drive)? Does everyone remember how Billy responded to my attempt to get Billy to discuss this case and its relevance to the contemporary “art” of claim drafting?

          And now Billy complains because my direct and sincere answers to his silly, loaded questions weren’t the answers he was looking for.

          Get a life, Billy.

          1. This is a thread about

            The RQ/HD has decreed what is and what is not permissible to discuss here.

            Woe to anyone who transgresses this edict (and woe to anyone that holds a view ont he subject not pre-approved – ad hominems for you all).

            /eye roll

            1. The RQ/HD has decreed what is and what is not permissible to discuss here.

              Uh …. not at all. You can discuss whatever you want.

              But it seems reasonable, Billy, that if you go completely off-topic that you may want to refrain from insulting people who don’t completely engage you in the exact manner in which you seek to be engaged.

              It’s truly bizarre that this needs to be explained but we’ve pretty much seen it all by now, haven’t we?

              1. But it seems reasonable,

                Sorry Malcolm, but you have shown no understanding of what that term means.

                As for insulting others….

                LOL – lovely AOOTWMD.

                Can you go a week without an insult? a day? an hour? more than two posts in a row?

                (check again as to who – by far – has the most posts expunged for insulting behavior. Hint: it’s you, and please, drop the sham of “b-b-b-b-but I’m responding” – and learn to respond in a way that is NOT expunged – that is, after all, kind of the entire point)

    2. anon, consider the secret process. If one patents the process, the secret is disclosed to the whole world. But patents only protect infringement in one country. The cost of placing patents in most relevant countries is prohibitive.

      Moreover, detecting the secret use by infringers of one’s process is not that easy. The patentee may never know that his process is being used.

      Therefor, patenting processes that can be kept secret through reasonable efforts is a fools errand regardless of prior user rights.

      But just in case a fool independently invents and comes after a prior user, the prior user needs protection. The law today does not invalidate such patents, but they could. Prior invention or making secret on sale prior art by other than the patentee would do. But as we go to a first to file system, prior invention and on sale secret prior art are no longer available to invalidate. More is needed. That more are prior user rights.

      1. Well Ned,

        Your post here is cogent and on point. Congrats.

        One problem though: you forgot the tie into the realm of patent law and why patent law exists in the first place.

        Yes, the reasons you give for secrecy do make sense – but those are reasons for secrecy – not for sharing, and patent law is all about promoting the sharing.

        You still aim to protect someone that is not abiding by the goals of the patent system. Someone not aiming to share at the expense of someone willing to share.

        That is an abject definition of perversity of patent law.

        Let’s face it – the carrot AND the stick approach worked best and it is only through the influence of those not wanting to share that the removal of the stick has been obtained.

    1. The square root of two is stored by angels spinning on the top of needles.

      Stevens said so.

      1. You don’t need to store it.

        Just buy a pizza for a couple of university students over the weekend and it can be magically obtained.

  20. The method claimed in the ’415 patent is thus “so abstract and sweeping” as to cover any and all uses of a device profile.
    Entirely inaccurate. The claim is directed to generating a specific type of device profile — not any device profile. Moreover, once generated, there is no restriction as to how the device profile is used — at least based upon my reading of the claims.

    Regardless of all the hand wringing about the system burning down, the result was predictable based upon In re Warmerdam, which was decided 20 years ago and prior to the filing of this application. The only hurdle that Federal Circuit needed to overcome was ignoring the limitations of preamble — for which there is plenty of case law to rely upon.

    If there is any serious criticism to be leveled (besides the sloppy analysis from the Federal Circuit described above), it should be leveled at the attorneys who crafted these claims in this manner despite the existence of In re Warmerdam and the USPTO for not rejecting the claims based upon In re Warmerdam.

  21. I find this “invention” rather suprising from a technical perspective. Currently the EXIF standard is widely used to tag image files, for many years. Is Digitech suing companies implementing EXIF? That seems preposterous.

    But if EXIF would be patentable subject-matter, and if it would be novel, the next question is whether it is non-obvious. The EXIF structure is pretty straightforward. The merit of de developers is mostly to identify the data elements one would register for digital images and to attach 16-bit codes to them. This is a substantial amount of work, but for a person familiar with concepts of photography it is is straightforward. And it is sufficiently flexible to accomodate any future needs.

    I wonder what the purpose of this patent is from a business perspective. Due to “network effects”, it would be very hard to replace EXIF, even in the unlikely case that it would be technically superior to EXIF. Should we conclude that this is yet another vaguely formulated patent with the sole purpose of extorting money from honest manufacturers?

    Finally, I guess that in general data structures could constitute patentable subject matter, e.g. in the case of compression techniques. But then there are still the network effects that make it unattractive for a firm to obtain a patent. Unless the firm is a troll, excuse me, a patent assertion entity.

    1. Yes well let’s all just decide whether something is a patent eligible or should be invalidated based on a popularity contest. Maybe how well the CEO of the company speaks at dinners would be a good way.

        1. Reiner,

          Given your well-established views on the subject, (overall anti-patent), I am curious as to what you think are the constitutional requirements.

          A while back I provided an in-depth view of the constitutional grant of power, detailing what were requirements (and what were not requirements). See link to patently.wpengine.com

          Would you care to outline your specific views on that US constitutional grant of authority to Congress (as opposed to the Courts) to write patent law?

        2. patents must meet constitutional requirements

          No kidding? Really. Well that certainly narrows the dispute.

  22. I had written more of an analysis but I called Lemley an @pe so Dennis deleted it.

    1. Actually, apparently I am not allowed to criticize Lemley or my posts get deleted.

      1. apparently I am not allowed to criticize Lemley or my posts get deleted.
        Apparently, if one makes an observation that MM has no life outside this blog, then those posts get deleted as well. I wonder if MM has pictures of Dennis in compromising positions. Consider the following comments, by MM, from this single topic:

        What an incredible, hypocritical t 0 0 l.

        followed by

        Shirt is another way of saying a different word that your mommy used the last time she found you using the computer after your bedtime.
        “Reality” seems to be smacking you in your sad puss on a very regular basis these days, Billy.

        Followed by

        Did you ever go to law school, Billy? Of course you didn’t. You got your degree in legal tr0 lling from Yahoo University.

        Followed by

        Right. That’s because you’re an id i0t.

        Followed by

        Only an insane person would bother trying to parse your desperate horseshirt, Billy.

        I’m sure there are other comments of similar ilk but I didn’t feel that wading through 28 separate posts from MM (on this topic alone) — I already took a shower this morning and I don’t feel like taking another one.

        1. And yet – another topic of Malcolm’s that gets free reign is lawyer’s being “grifters” – but point out an objective FACT like the ABA model rules of professional responsibility, and those posts are deleted pronto.

          1. another topic of Malcolm’s that gets free reign is lawyer’s being “grifters”

            I’ve never once suggested that all lawyers are grifters, Billy.

            But go ahead and lie about that, Mr. Ethics. It’s what you do best.

            This is a patent blog. If you’re suggesting that one patent attorney can’t criticize another patent attorney for, e.g., filing a total piece of sh xt patent application for the sole purpose of tr 0lling with it, then you’re even more clooless than I thought.

            I told you this was going to be a difficult year for you, Billy. Take a vacation. You are losing your shirt and while it’s kind of funny it’s also kind of sad.

              1. Did I actually say that you said that ALL lawyers are grifters?

                Seemed that way to me, Billy. Here’s what you wrote: another topic of Malcolm’s that gets free reign is lawyer’s being “grifters”

                You didn’t say “some lawyers.” You said “lawyers”.

                See how the English language works, Billy? Ask your mommy to help you next time.

                What an eff in t 0 0 l.

              2. There is no 1ie in my post.

                What seems to you – one who spins so much that you have lost your ability to tell which way is up – is simply immaterial.

                Again – you attempt to call me out as a 1iar.

                Show the 1ie.

                And note, that each and every time we go through this merry go round, you FAIL to show even a single 1ie.

                Don’t you get tired of your own B$?

              3. Contrast:

                But go ahead and lie about that, Mr. Ethics. It’s what you do best.

                with

                Did I “actually” say there was a lie in your post?

                You are not really too bright, are you?

        2. I wonder if “self-serving” would be an apt description?

          I get that Prof. Crouch may not want to run the risk of having to divulge the identity of any of the posters here.

          I do. That aspect might send the comment numbers plummeting.

          And I get that having to report someone to a state bar disciplinary committee may be considered an unpleasant task.

          I do.

          But the comments to the ABA model rules that I have referenced make clear that such “concerns” are not the proper concerns that define the duties that lawyers have sworn to.

          Swearing an oath when we become an attorney creates a duty that sometimes one may not be comfortable with.

          That duty does not disappear when one runs a popular blog. That duty does not disappear when one finds it inconvenient. There is nothing in the rules that excuses the reporting of a person known to be active in a pattern of repeated offenses, even ones of minor significance when considered separately, which indicate indifference to legal obligation – that obligation being (yes, even out of court), the duty not to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Clearly, Malcolm has consistently misrepresented material aspects of law in the way that he spins his views of existing law.

          This post itself is likely to be removed. I get that too.

          But the message of the post cannot be removed, even if these words are. The message remains because the ABA model rules remain.

          It is – or should be – easy enough for Malcolm to comport with those model rules. Sure, his soapbox antics may be fewer. Sure, he may more often “be caught” making admissions against his interests. Sure, his desired changes in the law might need actual support beyond the Red Queen / Humpty Dumpty tactics that he likes to employ. And sure, he may have to acknowledge history and what the 1952 Act was about, but are these types of things really all that bad? Would not a genuine path to reform be better – and stronger – without the tricks?

          1. And to blunt Malcolm’s comeback of different monikers somehow being on par with his egregious conduct (which by the way, he himself routinely engages in even after 1ying here that he does not do so), different monikers has nothing to do with material misrepresentation of the law – that is the type of misrepresentation that is covered by the rules of professional conduct and it is that type of action that is – and should be – found to be appalling.

            In many past discussions on this topic, I have pointed out that it is not that I disagree with Malcolm’s viewpoint per se – it is in how Malcolm goes about expressing that viewpoint of his that is out of control.

            Here – whether or not the comments noting his pattern of conduct are excised – that pattern exists.

            That pattern is known.

            That pattern objectively violates the ABA model rules.

            The comments can disappear. The duty does not.

          2. Dear Billy,

            Please explain to everybody here how on earth it is possible that the guy who has been right about nearly all these recent Supreme Court cases for the past ten years gets sanctioned for being “unethical” while the insult-spewing path ol 0gically lying a xx hole who is wrong about those same cases escapes such sanctions.

            Go ahead, Billy. Make my day.

            1. You have not been “right” about any cases as you do not share any legal theory so as to be able to claim that you are “right.”

              Your short script of noted items that should be dropped has been discussed many times. Do you really need a refresher?

              Mindless Malcolm Nutshell response:

              What is there to address?

              You yourself show NO signs or any willingness to engage in reason. You yourself HABITUALLY engage in point blank unethical treatment of law, facts, and of what others post.

              Tell me Malcolm, when are you going to change from your own bankrupt posting style, and drop your short script tactics?

              Drop the ad hominem
              Drop the spin
              Drop the mischaracterization of law (including the exceptions to the judicial doctrine of printed matter)
              Drop the mischaracterization of facts
              Drop the mischaracterization of what others post
              And above all, drop the Accuse OthersOf That Which Malcolm Does.

              If your point is that you purposefully misrepresent what others post….
              … then your point is just another Malcolm Self-FAIL.

              Nice job. Run with that, pumpkin.

              Um – you really really love that self-FAIL feeling, don’tcha?

              1. I want to hear the explanation, Billy.

                Please tell everyone how it is the case, for example, that you spew your endless insults and completely discredited drivel here for years using hundreds of different pseudonyms and then, somehow, when other people are so fed up with your nxtsanity they just write you off as a mentally ill l 0 s er that those people end up being sanctioned and you don’t.

                Tell everyone how that works, exactly.

                Remember: you’re the guy who fantasizes about me being sanctioned by the bar. I’m the guy who just wishes you could somehow keep your patent-lurvin’ and reform-despisin’ drivel to one of the many, many blogs out there where that patent-lurvin’ and reform-despisin’ drivel is expressly promoted, 7 days a week.

              2. I already pointed out the difference in multiple pseudonym usage and the egregious misrepresentation of actual law.

                You have an answer – what about the answer are you having a difficult time understanding?

        3. Somehow “Oh No” forgot to include the text of Billy’s comments that I’m responding to.

          Does “Oh No” realize that Dennis himself has acknowledged that Billy has a tendency to come across like a “crazy person”? Does “Oh No” realize that Billy talks incessantly about me and other commenters he disagrees with even when we don’t comment here?

          I’m guessing the answer to these questions is “yes.” Here’s the deal, “Oh No”: there’s plenty of other blogs out there where you and Billy can hold hands and complain about the communists and the “Ges tapo” every time your precious patent rights are diminished in any way. Enjoy them! They are tailor made for both of you. What’s the problem, exactly?

          1. other commenters he disagrees with even when we don’t comment here?

            LOL – lovely AOOTWMD, given Malcolm’s utter obsession with a certain Mr. Quinn and the fallout of that obsession that the filter here blocks out all references to “ge” + “ne”.

            The problem Malcolm – as has been noted many times – is how you go about expressing yourself and the rampant mischaracterizations and misrepresentations you make while doing so.

            These are the violations of the ABA model rules that you engage in.

            It is NOT that a disagreement exists – it is HOW you go about that disagreement.

            1. Billy: The problem Malcolm – as has been noted many times – is how you go about expressing yourself and the rampant mischaracterizations and misrepresentations you make while doing so.

              I guarantee you that “how I go about expressing myself” is not “the problem,” Billy.

              How do we know that? Hmm, for starters we have this:

              NWPA
              June 24, 2014 at 9:11 am

              This group is little better than the fundamentalist that are raping and killing in Iraq. Reason and the enlightenment mean nothing to this lot.

              17.2.1.1
              anon
              June 24, 2014 at 9:33 am

              They [attackers of the patent system] want their ends, no matter what the means.

              Clearly it’s not the manner of communication that matters to you or else you would have responded differently to your buddy. Nope. Your “problem” is very easy to recognize, Billy. And you’re certainly not alone.

              The Internet changed some things about the way public policy (like patent policy) is enacted and effected. Unless the Internet changes dramatically, patent policy will never again be written and effected in a vacuum where only the self-entitled, invested voices are considered.

              Deal with it, Billy.

            2. Does “Oh No” realize that Billy talks incessantly about me and other commenters he disagrees with even when we don’t comment here?

              followed by:
              given Malcolm’s utter obsession with a certain Mr. Quinn
              I think the definition of hypocrite includes [see Malcolm Mooney, aka, MM]

              there’s plenty of other blogs out there where you and Billy can hold hands and complain about the communists
              Good, you are welcome to them. I come here to discuss the law. You come here to whine about “ju nk patents” and “grifter attorneys.”

              Somehow “Oh No” forgot to include the text of Billy’s comments that I’m responding to.
              Your comments stand alone and have no place in a forum where professionals discuss their profession.
              BTW — I have, on many occasions using different nom de plumes, implored anon to stop responding to you. All he is doing is feeding the troll.

              Given this blog’s high profile (i.e., likely the preeminent IP blog in the US), I suspect that some decision/policy makers or their proxies visit it. It pangs me that the most vocal supporter of “my side,” while correct (IMHO) on the law/policy, is on the same level as MM when it comes to being petulant. Anon — when will you ever learn that your obsession with MM is not doing our side any favors? Fortunately, he has the same obsession with you, so he isn’t doing his side any favors either.

              Lose anon and MM and the number of posts here drop 25-30% but the level of civility increases 100%. Dennis, when will you ever get that message?

              1. To be clear, Dennis is equally to blame here. I’ve been on many blogs going back well over a decade and very few of them would put up with this. Also, if they were unmoderated, there were tools to filter this out as well.

                If this blog wasn’t the best place to get my patent news, I would have ditched it a long time ago … I feel like I need to take a shower after every time I visit.

              2. Oh no,

                I do hear your message.

                Alas, I also choose to ignore it.

                I think that you err a bit with the “feed the troll” view.

                The “Troll” that is Malcolm would post his banal message whether or not I am here to feed him. You make the incorrect assumption that if I were not to post, then he too would not post.

                There is nothing at all that supports that view.

                On the other hand, I do take a certain pleasure in replying to Malcolm in ways that he surely understands. Rubbing his nose in his own CRP has a certain sense of justice.

                Yes, there are times when I use ad hominem (and perhaps, you may feel that such use is excessive). The difference of course, is that my use is devastatingly clever, and on point, while Malcolm simply flails about with his short script.

                I have in the past volunteered to change my posting style – incumbent on seeing the same changes from others. But those others refuse to change their posting styles.

                The board remains inundated with the tactics that should be stopped:

                Stop the Accuse Others Of That Which Malcolm Does.
                Stop the spin
                Stop the mischaracterization of law (including the exceptions to the judicial doctrine of printed matter)
                Stop the mischaracterization of facts
                Stop the mischaracterization of what others post
                Stop the mindless ad hominem that is completely unsupported with zero posting of merit

                As to “Dennis is equally to blame here.” You have a valid point. This is his blog and he can easily change things.

                My recent posts on ABA model rule duties seem to have struck a chord, but were none the less removed.

                I have been personally asked for suggestions to make the conversations better. My suggestions have been ignored. With that, I merely play by the rules that I see allowed. Does it make for a rough go at times? Sure. Would it change if I – and I alone changed? – NOT AT ALL.

          2. It is no mistake – and it is an uncontroverted fact that you are – by far – the most expunged poster of all posters – combined.

            It matters not that you are “responding” – it matters HOW you are responding.

            This is something that you should try to care about.

            1. “It matters not that you are “responding” – it matters HOW you are responding.”

              Anon cares a lot about that. He’d like to control that in fact. So much so that he goes out of his way to attempt it.

              1. Yet again with your projection of someone else “controlling” while losing sight that limits on how LAWYERS advocate are imposed by the oaths they personally take.

                Open your eyes 6 – try to grasp the message that I am stating as opposed to the message you want to project me stating.

        4. the insult-spewing path ol 0gically lying a xx hole who is wrong about those same cases escapes such sanctions
          I’ve got a comment “awaiting moderation” and this sails through? Really? Come on?

          Those pictures that MM has must be really, really good.

              1. That is a good point 6 – but not the only moderation filter trap.

                I have had posts stuck in moderation that I simply repost with zero changes and they fly through.

                But the “ge” + “ne” moderation is a heavy one – can you guess why that one is in place? (hint: it has to do with one of Malcolm’s obsessions)

                What might help would be a hyperlink to the side of the posting area listing those items that trip the flag.

              2. “can you guess why that one is in place?”

                I’m not 100% convinced.

                And besides that, I’d been making fun of Eug enimous for years before MM just started recently.

        5. Gosh that was easy Oh No. See in the responses to your comment how the bottom feeding scvm b@g rose to your bait. Gee, going ad hominem is easy too! Which is probably why the MTard employs it. Imbecilic, a one-trick pony.

    2. Also, the title to your post Dennis actually takes the view that the opinion is wrong. Because they held the claims weren’t to a data structure, but so broad as to include information devoid of any tie to a machine.

      That is the nut of the opinion. So calling it a data structure is implicitly saying the opinion (which is based on the claim construction) is wrong.

      1. The case itself is a good read, because the judges – in denying the arguments made by the patent holders – clearly lay out that a claim that would read on what the patent holders thought were contained in the claims would be to patent eligible subject matter.

  23. A device profile for describing properties of a device in a digital image reproduction system to capture, transform or render an image, said device profile comprising:

    “The claims encompass all embodiments of the information contained in the device profile, regardless of the process through which this information is obtained or the physical medium in which it is stored.”

    So, this whole opinion is one of the Fed. Cir. saying that these claims shouldn’t be read as working in a computer. Ridiculous. No person skilled in the art of image processors would take this claim as broader than being in a computer readable format. So, they invalidated this based on a claim construction. Just criminal.

    Above is the nut of the entire opinion.

    1. Note that they also said we are going to ignore the preamble. So, practice tip put it outside the preamble.

      Look at the spec and the claim. And, if you care about being intellectually honest you will have to agree that there is no way anyone that is skilled in the art of image processing would take these claims as anything put claims operating in an image processing device.

      This really rises to the level where we should seriously consider ending the Fed. Cir. After the Obama has stacked the court, I would strongly advocate ending the federal circuit. The problem is political. Think about this. The problem is that by making the special court we have given the corporations a way to target patents. If it is in the broader courts, they won’t be able to buy the appointments the way they have at the Fed. Cir.

      So, the solution is the end of the Fed. Cir. And, we can tell that the big corp has figured all this out as they will no doubt make sure that the Fed. Cir. isn’t disbanded because they now have their people in it.

      1. There is an underlying political motive in this decision to find any excuse to get a claim/patent declared invalid when the corporations are being sued. That is the message that Obama has clearly sent to the Federal Judiciary. When drafting a claim one has to assume knowledge of prior art on what a computer is and how it works, otherwise claims would be unnecessary long to add every limitation regarding a computer.

        The claim can be redrafted to bring the preamble in the claim and then would be 101 eligible. As others have said it is either poor claim drafting or a bias against patents to look for any excuse to throw out a patent. Before the Obama interference, the CAFC created doctrines to preserve a patent validity. Now it is creating doctrines to invalidate patents. Federal Judiciary is supposed to be independent of the influence of the executive branch. This decision proves it is not at least at the CAFC level.

        1. Before the Obama interference, the CAFC created doctrines to preserve a patent validity. Now it is creating doctrines to invalidate patents. Federal Judiciary is supposed to be independent of the influence of the executive branch. This decision proves it is not at least at the CAFC level.

          Oh, good lord, it’s another one.

          The claim can be redrafted to bring the preamble in the claim and then would be 101 eligible.

          Completely wrong. You can’t have a claim to data. You never could.

            1. LOL – eliminate the posts that are nothing but dust-kicking.

              Malcolm’s already wide margin of more posts expunged than all others combined would explode.

              But you know what NWPA?

              He.
              Does.
              Not.
              Care.

              at all.

          1. DanH, agreed about Tara C’s post. Comes off as a very undereducated bigot. She simply does not understand the patent system. But, her sad lack of education might be excused if she were “educated” in the last two decades, post Alappat and State Street Bank, to think that the law of patentable subject matter is what Rich and Rader said it was.

            It could also be that she is educated by attending IPO or AIPLA seminars whose speakers share her views as well.

            1. In contrast to being an overeducated bigot, trained in pre-1952 Royal Nine Uber Alles understanding of common law-supersedes statutory law – violations of the separations of powers doctrines….?

    2. One other thing to keep in mind about this opinion. It was wrong. Clearly the wrong claim construction. It was done for Lemley. This opinion is probably worth about $5 million to Lemley. Now companies are going to come to him to get invalidations no matter the merit. He just made at least $5 million from this.

  24. Nuijten, 500 F.3d at 1351. Although we acknowledged that a signal had physical properties with “tangible causes and effects,” we nevertheless concluded that “such transitory embodiments are not directed to statutory subject matter.” Id. at 1353, 1357.

    There’s a gem. Let me summarize for you: we had to acknowledge that there was no principled way to hold it ineligible, but we did anyway ’cause we don’t care about the law.

    1. Anyone would go insane reading your nonsense Ned regarding 101. Just read this opinion. They basically just said that the claims are statutory, but we are going to invalidate them ’cause we agreed to when we took our appointments.

    2. So now a stacked Fed. Cir. and a shadow director Lee waiting to get her $10 million in stock options.

    3. Actually the quote to Nuijten was scary. It appeared to be a threat to use it next time to overrule Alappat.

      1. “Actually the quote to Nuijten was scary. It appeared to be a threat to use it next time to overrule Alappat.”

        Lulz, as if Alappat needs “overruling” at this point. It’s all but done for. The only thing keeping it at all “alive” is the slowness with which the government moves.

    4. Transitory.

      Look up into a clear night sky for the same type of transitory things that have been around longer than ANY of the so -called man made non-transitory things.

      link to zidbits.com

      (and that’s just our stuff…)

      1. Look up into a clear night sky for the same type of transitory things that have been around longer than ANY of the so -called man made non-transitory things.

        Just be careful out there. I did this the other night, and nearly had my eye put out by a transitory device profile. I think that’s what it was, anyway.

        1. The comment by DanH/Leopold – taken as an attempt to cheerlead, is amusing in another regard.

          The gist of the comment is that “profile” would need to be “physical” to actually do the harm that DanH/Leopold jests about – putting his eye out.

          But the physicality/tangibility factor of the Niutjen case has been dropped as part of the argument as to why that case implicates signals (or more correctly, man-altered signals) as non-eligible material.

          DanH/Leopold makes a joke on the aspect of the case that is no longer even in play.

          The non-eligibility aspect of that case rests SOLELY on the transience portion of the argument.

          I am not sure that DanH/Leopold even recognizes the FAIL that his attempted humor brings out.

          Don’t worry DanH/Leopold about having your eye put out – your clenching them tight as to the real “point” of the discussion here already makes sure that you will not see that “point” and that your “vision” will remain intact and consideration of the absurdity of “transience” will not breach your defenses and your limited understanding of patent law will not be harmed.

          You may remain as blissful as ever.

            1. Your reply is not an answer.

              How about a straight up unequivocal yes or no answer:

              Are you denying that you previously posted under that moniker?

            2. LOL – what are the chances that we will have the typical repeat performance of DanH/Leopold first venturing forth with a smarmy retort, being smacked down with a reply by yours truly, and then DanH/Leopold slinking away and not providing an honest answer when so called to do so?

              History.

              Repeats.

    5. OK. So, Lemley tell us how you protect IP in your start-up?

      Tell us. What I think and from a little investigation is that you don’t permit your employees to share any information and you tie your employee down with draconian non-compete agreements.

      !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! EVERYONE READ THAT !!!!!!!!!!!!!!!

      The future the Google PTO and Federal Circuit is giving us is one where the workers aren’t permitted to publish papers or discuss their work outside the company and get tied down with contracts that forbid them from working. Slave labor. And in light of the salary agreements between Google and other silicon valley companies this should be no surprise.

      EVERYONE read this. This is what the future holds.

      1. And seriously the Neds, 6’s, MM’s, etc. The ones that are delighting in watching as the system burns down. Really read what I wrote and address it.

        I worked in a software company BEFORE patents and that is exactly the way it was. If you talk about what we are doing or you are doing, we will sue you. If you leave, you can’t work for anyone else doing anything near what you are doing. They paid me a ridiculously high salary, but it was not worth being locked down.

      2. And Ned, if you want me to take you seriously then really seriously address this issue. I was a software engineer before software patents. I know what it was like. It gave much more power to the employer and led to secrets.

        I don’t think that the average employee of companies these days could even imagine how bad it was. Maybe I should dig up my old contract and post parts of it on here. And Microsoft as I remember (I didn’t work for them but had plenty of friends in the first 1000 employee group) was bad. As I remember it Microsoft was all about secrets and lock-ups.

        1. Night, well I happen to agree that the best way to protect novel software is to keep it under lock and key, and everyone mum, if at all possible.

          Copyright helps.

          Patents are available if secrecy is not possible, as when the software is sold. — but only when claimed properly. You do not seem to understand that the dispute between you an me primarily if not exclusively is a claim drafting issue as you always want to patent useful application of computers.

          1. want to patent useful application of computers.

            “oldbox” cannot “use” the software until ‘oldbox’ is changed and configured with the software.

            This is a fundamental fact that you seem unwilling to grasp Ned.

          2. Keep it under lock and key? Well, that is antithetical to the patent system of free flow of information to promote progress.

            YOU SEE RIGHT HERE is the biggest problem.

          3. Copyright helps.

            Copyright serves a different function Ned – creative expression.

            The patent system is meant to protect the functional and utilitarian aspects.

            Your admissions today reveal far more than you think that they do.

  25. The method in the ’415 patent claims an abstract idea because it describes a process of organizing information through mathematical correlations and is not tied to a specific structure or machine.

    That is criminal.

    1. I hope no one takes all my posts as indication that this opinion bothered me.

  26. “… except that the Federal Circuit has held it invalid …”

    Dennis — but shouldn’t this read, “… except that the Federal Circuit has held it’s claims invalid …” ?

    Did the court(s) invalidate the entire patent? Did the court(s) “cancel” the patent?

    When the mainstream press says, “The patent was found invalid,” don’t they mean: “The claims of the patent were found invalid?”

    1. When the mainstream press says, “The patent was found invalid,” don’t they mean: “The claims of the patent were found invalid?”

      If you understand that, Steve, then what’s the problem?

      1. “If you understand that, Steve, then what’s the problem?”

        So you believe I’m correct then?

        My problem with that phraseology of the, “The patent was found invalid” nature is that it is factually incorrect … making it sound like the entire patent is now worthless … since it’s been “cancelled,” “extinguished,” or some such … when in fact it may still be very useful and valuable … if through a few options we all know of … new, valid claims may still be obtained.

        1. My problem with that phraseology of the, “The patent was found invalid” nature is that it is factually incorrect … making it sound like the entire patent is now worthless …

          LOL. I think it’s safe to say this entire patent is now worthless.

        1. Who cares anymore really. The federal circuit is stacked with virulent anti-patent science ignorant clowns. This opinion is by two them. Moore I don’t include in that lot.

              1. “At this point, I STRONGLY advocate the disbanding of the Fed. Cir.”

                I’m surprised to hear that since they’re what the entire patent empire is currently built upon.

              1. I read the whole think thanks anon, there’s quite a bit in there. Judges running wild, his entire generation of attorneys using the “wrong” language (according to him anyway), decoration advice, an offer to give away his award, frank talk about the nature of patents, and inventions, talk about his vision for the patent system etc. etc.

                It actually was a speech turned into a paper. The one thing everyone definitely has to give the man is that in a patent world of nobodies who couldn’t lead their way out of a paper bag he had an iota of leadership. Which is likely a bad quality to have in a judge (though it certainly got him recognized).

              2. I read the whole think thanks anon, there’s quite a bit in there. Judges running wild, his entire g e n eration of attorneys using the “wrong” language (according to him anyway), decoration advice, an offer to give away his award, frank talk about the nature of patents, and inventions, talk about his vision for the patent system etc. etc.

                It actually was a speech turned into a paper. The one thing everyone definitely has to give the man is that in a patent world of nobodies who couldn’t lead their way out of a paper bag he had an iota of leadership. Which is likely a bad quality to have in a judge (though it certainly got him recognized).

              3. “Are you really saying that leadership is a bad quality…?”

                I just specifically said that it likely is for judges. Though here I’m referring to political leadership like Rich practiced. Not community organizing or how to run the procedures of a courtroom leadership, those would all be legit for anyone, judges included. Leadership in judges is precisely what leads to what you constantly decry as “judicial activism”. That’s also why we refer to our pres and congress critters as our “leaders” and not our judges.

              4. Leadership in judges is precisely what leads to what you constantly decry as “judicial activism”.

                Not even close, 6.

                I see that your bizarre affliction with control and power affects your view of leadership as well.

                These are mature (and nuanced) concepts. Perhaps I expected too much from you 6.

        1. I just don’t see how ending exclusive jurisdiction is going to be helpful.

          Minimizing the number of judges on the CAFC who hear patent cases might help reduce the uncertainty created by a myriad of different panels.

          But I think a better correction is to keep the fire burning on the CAFC’s behinds such that they begin to make it more clear that their job extends far beyond “protecting the expectations of patentees” or whatever it is they seemed to think they were doing with some of their (overturned) eligibility decisions over the past several years.

          “The public interest is paramount” <– That should be burned into a plaque and hung in every Federal courtroom but especially the CAFC's. And the public's interests extend far beyond the public's interest in asserting whatever j nk they managed to get out of the PTO or purchased second hand. Why is that the case? Because only a teeny tiny fraction of the public will ever be in that exceptional and purely voluntarily assumed position. Most people aren't interested in the associated responsibilities or they are incapable of the associated responsibilities or both. But pretty much everybody isn't interested in increasing the extent to which harassment by patent owners — particularly patent owners who aren't producing a darn thing except patents or lawsuits — is part of our daily lives. Nothings going to change that.

          Maybe the patent tr 0ll bar should spend more money on SuperBowl ads so they can get the average person reciting their scripts for them. I can see a commercial with one of our boys pulling a dagger out of a Redcoat's chest and hissing "No claim dissection without representation!!!!" Find some hot young actor who looks good in one of those funny hats and you'll probably see a huge swell of support. I'd recommend spending at least $10 million, not including the ad fees.

      1. Let’s give the CAFC a shot to see if they can turn things around now that certain elements have been removed from their consideration.

        As a group, they can’t really pretend to be “confused” about what the Supreme Court is telling them forever. Can they?

        It’s not that hard really. What’s hard is watching the self-procaimed Most Important Innovators Ever whine and whine and whine about it’s all so unfair that they can’t describe something everybody knows a computer can do using ge neralized abstract terminology and then sue anybody who dares to make make it happen without their permission. Actually that’s not very hard at all. It’s kind of funny watching them huff and puff about how “the rules are being changed” when the rules they love were the same rules that led to the disgraceful gar bage we’re seeing being asserted now.

        Reap the whirlwind, l 0sers. There’s plenty more changes to come. You can bet on that.

        1. MM, I tend to agree in principle and the leading nominalist heretics are no longer on the court.

          But I worry about Chen. He is responsible for two recent decisions that are spectacularly wrong. This is not a good start.

        2. “It’s kind of funny watching them huff and puff about how “the rules are being changed””

          That is perhaps the funniest part.

          1. Yes I am sure it is a scream to you 6. Get some marsh mellows and I’ll meet you down at the PTO for one last party.

            1. It really is. And don’t be so dramatic, there will be plenty more parties being held here at the PTO. You can come to some if you want. Maybe it’ll help take your mind off all this “violence” being done to your precious patent system.

              1. Do you do EE patents 6? If so, I wonder if you realize the connection. I wrote applications for Ph.D.’s on some of the top consumer products. The gen eral consensus was that if software isn’t eligible that there isn’t really a way to protect the product as an engineer can easily digitize the signals in a part of the device and operate on the signals and then generate the signals.

                So, if the claim has to be to circuits then all the claims are easily designed around. That was how one of the top device makers in the world analyzed the situation.

              2. Do you do EE patents 6? If so, I wonder if you realize the connection. I wrote applications for Ph.D.’s on some of the top consumer products. The gen eral consensus was that if software isn’t eligible that there isn’t really a way to protect the product as an engineer can easily digitize the signals in a part of the device and operate on the signals and then gen erate the signals.

                So, if the claim has to be to circuits then all the claims are easily designed around. That was how one of the top device makers in the world analyzed the situation.

              3. The objective fact that software is equivalent to firmware and equivalent to hardware is a critical baseline that any intellectually honest discussion on the topic requires.

                If one refuses to even acknowledge that, one refuses to understand the “in the art to which the invention pertains” portion of “Person Having Ordinary Skill In The Art to which the invention pertains.”

                But such material aspects of law seem, well, “optional” to certain philosophies, and even noting such materiality risks the censor’s removal.

              4. “Do you do EE patents 6? If so, I wonder if you realize the connection. ”

                Barely 1% of what I do involves claims to softiewaftieware. There’s plenty in EE besides software.

                Now, admittedly there may be no way to “protect” “some of the top consumer products” if software isn’t eligible. That I basically will not argue with you.

                For that reason, if nothing else, is why I suggest you ask congress for special protection for software. Either by creating a separate system for software “protection” with its own terms, or by adding it to 101 explicitly (let’s hope the USSC doesn’t strike down 101 if that happens).

                ‘The gen eral consensus was that if software isn’t eligible that there isn’t really a way to protect the product as an engineer can easily digitize the signals in a part of the device and operate on the signals and then generate the signals.”

                That’s really the fundamental rub isn’t it? At the level you’re talking about, all you’re doing is “signals this and signals that”. I’m sorry brosef, but perhaps people should be free to send signals how they please without government interference. That’s kind of a political call.

                “So, if the claim has to be to circuits then all the claims are easily designed around. That was how one of the top device makers in the world analyzed the situation.”

                I hear you and understand you. You don’t have to keep repeating it, year after year.

              5. “Do you do EE patents 6? If so, I wonder if you realize the connection. ”

                Barely 1% of what I do involves claims to softiewaftieware. There’s plenty in EE besides software.

                Now, admittedly there may be no way to “protect” “some of the top consumer products” if software isn’t eligible. That I basically will not argue with you.

                For that reason, if nothing else, is why I suggest you ask congress for special protection for software. Either by creating a separate system for software “protection” with its own terms, or by adding it to 101 explicitly (let’s hope the USSC doesn’t strike down 101 if that happens).

                ‘The ge n eral consensus was that if software isn’t eligible that there isn’t really a way to protect the product as an engineer can easily digitize the signals in a part of the device and operate on the signals and then g e n er ate the signals.”

                That’s really the fundamental rub isn’t it? At the level you’re talking about, all you’re doing is “signals this and signals that”. I’m sorry brosef, but perhaps people should be free to send signals how they please without government interference. That’s kind of a political call.

                “So, if the claim has to be to circuits then all the claims are easily designed around. That was how one of the top device makers in the world analyzed the situation.”

                I hear you and understand you. You don’t have to keep repeating it, year after year.

              6. 6,

                A critical point that you seem unable to understand is that the law does not need ADDITIONS that you would seek for software.

                The law of 101 is written as an open front gate for the very reason that new forms of innovation are not a priori knowable, and that having to go back to Congress after the fact defeats the purpose of having laws promoting innovation in the first place.

                Once again 6, it is your beleib system that is getting in the way.

              7. “A critical point that you seem unable to understand is that the law does not need ADDITIONS that you would seek for software.”

                1. I would not seek them.

                2. Alice corp probably disagrees with you. As does Judge Newman apparently. She also thinks congress needs to get involved. Said so just the other day.

                “The law of 101 is written as an open front gate”

                9-0 billy. 9-0. :/

    1. Of course according to the Fed. Cir. this isn’t software. (Of course it really is, but they just said it wasn’t so they could invalidate.)

      Shameful. Shameful.

  27. Dennis still wonders how one defines abstract.

    “According to the court, the reason this result is abstract is that it is simply a “process that employs mathematical algorithms to manipulate existing information to generate additional information.” As the Supreme Court wrote in Flook,

    ‘If a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.

    Parker v. Flook, 437 U.S. 584 (1978).”

    The clue is in the case: nonstatutory. The cite from the case was to Flook. But Flook was quoting this case:

    In re Richman, 563 F. 2d 1026, 1030 (1977). link to scholar.google.com Note that Rich only concurred in the result.

    Flook noted that a laws of nature and mathematical algorithms were nonstatutory, that is, ineligible subject matter. Add in only the conventional, but statutory, and the claim as a whole remained unpatentable. Add in invention in the eligible, we have a patentable invention.

    Diehr essentially confirmed Flook.

    Bilski confused by calling the claims there abstract, when the court as a whole should simply have held the claims to be nonstatutory as a method of doing business is not within the four classes. But the present case shows the Federal Circuit returning to the fold by defining abstract as essentially being the same thing as “nonstatutory.”

    If anybody believes that abstract means something different than nonstatutory, can someone please explain their thinking?

    1. Dennis still wonders how one defines abstract.

      “According to the court, the reason this result is abstract is that it is simply a “process that employs mathematical algorithms to manipulate existing information to gen erate additional information.” As the Supreme Court wrote in Flook,

      ‘If a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.

      Parker v. Flook, 437 U.S. 584 (1978).”

      The clue is in the case: nonstatutory. The cite from the case was to Flook. But Flook was quoting this case:

      In re Richman, 563 F. 2d 1026, 1030 (1977). link to scholar.google.com Note that Rich only concurred in the result.

      Flook noted that a laws of nature and mathematical algorithms were nonstatutory, that is, ineligible subject matter. Add in only the conventional, but statutory, and the claim as a whole remained unpatentable. Add in invention in the eligible, we have a patentable invention.

      Diehr essentially confirmed Flook.

      Bilski confused by calling the claims there abstract, when the court as a whole should simply have held the claims to be nonstatutory as a method of doing business is not within the four classes. But the present case shows the Federal Circuit returning to the fold by defining abstract as essentially being the same thing as “nonstatutory.”

      If anybody believes that abstract means something different than nonstatutory, can someone please explain their thinking?

      1. The problem Ned is your continued attempt to substitute (pedantically) the word “statutory” when you mean “statutory category” and the Court has expressly denied that line of reasoning in its decisions.

        Your argument on this line of thought is thus stillborn and FAILS of its own weight.

        Use the terms properly and you will avoid so much of your self-confusion.

        1. anon, The problem Ned is your continued attempt to substitute (pedantically) the word “statutory” when you mean “statutory category” and the Court has expressly denied that line of reasoning in its decisions.

          No, anon. It is not me that attempts to confine the topic of patentable subject matter to the four classes, it is you. I have repeatedly included the words “new,” “improved ” and “useful” within my definition of statutory while you have resisted, on a constant basis, the very idea that the concept of newness is part of section 101.

          It is part and parcel to your claim-as-a-whole argument that one cannot dissect a claim into new and old elements for determining patentable subject matter. This has obviously never been true, because if it was true, then simply adding into a claim, otherwise directed to ineligible subject matter, conventional elements that are otherwise eligible would render a claim eligible under section 101. The courts have utterly condemned this for very long time. This is what I call “nominalism. ” This would convert the topic of eligible subject matter into a joke as any competent draftsman could sprinkle a claim with eligible subject matter in order to render the claim as a whole eligible.

          To be sure, Judge Rich and Judge Rader both adhered to nominalism and they almost wrecked the patent system because of this.

          Dissection is a critical step in determining whether the claim is directed to ineligible subject matter. It has been employed consistently by the Supreme Court. The only potential hiccup was unfortunate dicta in Diamond v. Diehr, that was the Supreme Court mistakingly citing to dicta in Bergey penned by none other than Judge Rich.

          1. Ned,

            That is not an accurate portrayal of out discussions.

            At all.

            I have forever and a day held that 35 USC 101 has more than a statutory category portion.

            I have in fact disagreed with your use of “new, improved and useful” because in your past expositions, you have attempted to drag those concepts directly into the statutory category portion of 101.

            Check the archives – what I say here is correct.

            You further seek to ignore (and for some unexplainable reason) say that Frederico’s comments on the creationof 101 (and the separation of patent eligible from patentable is not in context.

            Clearly, the sections of Frederico that I have shared on this (and from whence you snipped your quote) are VERY much in context.

            I point this “eligible versus able” thing out to you repeatedly, and you always fail to address that point.

            Why?

            Your views on nomilaism quite misunderstand my repeated position on 101 – and that the statutory category portion is not the only portion of 101. And yet, repeatedly as well, you attempt to put words in mouth, and I must repeatedly remind you not to do so.

            Your “version” of case law is egregiously flawed. Painfully so.

            Finally, here, you admitted to struggling with what the Court did in Alice by not paying ANY attention to the statutory categories. Have you forgotten this? DO you need me to repost your statement?

            Do you not see that this mirror image treatment is every bit as fallacious as the “nominalism” that you would (in error) accuse me of?

            I am not – nor have I ever been the nominalist that you wish to paint me as. I have explained this to you in the past with great and patient detail.

            I am truly offended that you seek to mischaracterize me (yet again).

            1. anon, answer me this simple question:

              A claim is to a new method of calculation in performed on functionally recited generic computers.

              Is this claim ineligible under 101; or unpatentable under 102, under 103, or under 112?

              If it is ineligible under 101, why?

              1. anon, answer me this simple question:

                A claim is to a new method of calculation in performed on functionally recited gen eric computers.

                Is this claim ineligible under 101; or unpatentable under 102, under 103, or under 112?

                If it is ineligible under 101, why?

                1. May I use the definition of 35 USC 100(b)?

                  …and includes a new use of a known process, machine, manufacture, composition of matter, or material.

                2. Is your “gen eric computer” an “oldbox” that somehow must be changed in order to have a the new capability?

                3. Do you really want to ask a question on 112 for a claim to which you have supplied no information as to the specification?

                4. And when, then, are you going to get around to answering some of my simple questions?

                  Like, why would Congress not simply reaffirm that business methods were not statutory and instead create a limited defense, if – as you would have it – they were always non statutory? Your view necessarily makes a nullity of the words of Congress.

                  Stevens’ view in Bilski failed for this very point. An independent presidential resource identified three judicial activists and those very same judicial activists are the ones remaining that would carry on Steven’s actions – the very actions which Judge Markey warned about.

                  Shall I repost that warning for you?

              2. You miss the point of every single reply.

                Your version of Benson, does it include the quote: “We do not so hold.”…?

                Your games, Ned – are transparent.

      2. NED says: “According to the court, the reason this result is abstract is that it is simply a “process that employs mathematical algorithms to manipulate existing information to gen erate additional information.” As the Supreme Court wrote in Flook,

        So, by the Church-Turing Thesis then all machines that are intelligent aren’t eligible for patentability. Oh boy. What rot.

  28. Which well-known patent litigator just said to Gene Quinn:

    “…the big, rich, elitist, special-interest groups are willing to do just about anything, and spend massive sums of money doing it, to destroy the ability of individual inventors and their companies to have a fair opportunity to be heard, not in back alleys, but in courts with judges and juries. It’s what our founding fathers fought so hard 240 years ago to protect. ”

    and is he right in his identification of the issue on which the founding fathers were fighting so hard?

    1. Max, not really. Political freedom, the right of representation, and a revolt against the British East Indies company that had a monopoly on trade. The Statute of Monopolies ended non-invention monopolies only on the shores of England, not on the high seas or with England’s colonies.

      The Boston Tea Party was emblematic of that revolt.

    2. …the big, rich, elitist, special-interest groups are willing to do just about anything, and spend massive sums of money doing it, to destroy the ability of individual inventors and their companies to have a fair opportunity to be heard, not in back alleys, but in courts with judges and juries. It’s what our founding fathers fought so hard 240 years ago to protect. ”

      Good lord that’s some pitiful self-delusion there. Nothing we haven’t seen before, however.

      These people really think the world revolves around them. Some phenomenally doo shy patent attorney sits around with his boss’s wife figuring out ways to sue companies using the broken patent system, and this 1 percenter pr xck tells us that the Revolutionary War was fought so we could all eat popcorn and watch his pockets get lined as a direct result.

      For gob’s sake, Ray, try to get out and meet some skilled business people who actually work hard to make ends meet and who don’t want harassment by deluded narcissistic patent litigators to be part of their daily lives.

      1. Good lord that’s some pitiful self-delusion there. Nothing we haven’t seen before, however.

        LOL – yes, Malcolm, we have seen plenty of pitiful self-delusion here by you Ned and 6 (often with cheerleading by DanH/Leopold).

    3. Of course he was right. The consequence is going to be no more sharing and draconian employment contracts.

    4. Well, I guess I don’t know how to work the bolding… look between the [b] and [/b]s for the bits i tried to highlight.

      1. The tags do not use “[” to open and “]” to close.

        Try the “less than” to open and “greater than” to close and remember that to turn off the tag, after your highlighted section include a slash after the “less than” sysmbol.

    1. No doubt. I was just thinking the same thing after reading Dennis’ comment: This sort of tagging of digital images has become ubiquitous and so the patent could be quite valuable – except that the Federal Circuit has held it invalid as lacking subject matter eligibility under 35 U.S.C. §101.

      “Tagging” information (or objects) so that other people or other machines can interpret the information (use the object) accurately is a pretty ancient concept. There’s probably good documentation of the concept being applied in various fields going back hundreds of years, at least.

      But nobody could have predicted it would be useful in a fancy schmancy picture-taking machine! Because powerful computer brain or something.

      1. Where do you see:

        generating second data for describing a device dependent transformation of spatial information content of the image in said device independent color space through use of spatial stimuli and device response characteristic functions;

    2. Where in that wiki link do you see anything that looks like :

      generating second data for describing a device dependent transformation of spatial information content of the image in said device independent color space through use of spatial stimuli and device response characteristic functions?

    3. Did Apple’s ColorSync include the spatial transformation data recited in the claim, as of 1996? Your Wikipedia link doesn’t mention it.

      I’m not contending that the claims are eligible subject matter. But it’s easy to invalidate claims over the prior art when you ignore the actual words in the claims. There are a lot of examiners who do it that way.

      1. DanH: it’s easy to invalidate claims over the prior art when you ignore the actual words in the claims.

        Indeed. It’s also easy to ignore the “actual words” in the claims when the “actual words” are just made-up terms describing information at a very abstract level.

        Call it “spacial transformation data” or “Johnny’s credit card transformation data” or “Grandmom’s cookie recipe transformation data.” It’s still data. You could use that same data as “instructions” for controlling how an image generation device generates an image, or you can use that exact same data as an RTSF Encryption Pseudo-key. Doesn’t matter. It’s still just data. You can’t protect it with a patent.

        Look at it this way: all information that anyone has ever created or that anyone will ever create is useful to somebody, in some context. All anyone needs to do is say “This data means this” and voila! you’ve innovated a new use for that data. But the data itself isn’t eligible for patenting. That’s because data is data. Calling some unspecified collection of data by a “new name” doesn’t make that data “new” or non-obvious. It doesn’t do anything at all to the data. The data itself does not change. It might become more valuable but that’s not because of any change to the data. It’s because there’s been a change to how we perceive the data. That’s not the kind of change that you can protect with a patent. It’s quintessentially abstract.

        1. Doesn’t matter. It’s still just data. You can’t protect it with a patent.

          Yeah, you’ve said that already. And I made it clear that I agree with you. So who are you arguing with?

  29. I Quote:

    “Ned Heller

    July 23, 2014 at 2:48 pm

    Good article there, 6.

    link to innovation.hoover.org”

    What a brilliant find from 6 and recognition from Ned. The Very Honorable Sir Giles Rich, counselling us all that:

    “..we must also refrain from granting patents on those inventions which would arise spontaneously given the need or the desire for them, as the yelp of the dog surely follows from stepping on his tail, …….”

    Sir Rich omitted to note that “obvious” derives from the Latin “ob Via” meaning “lying in the road”. The fact is though, that the PHOSITA, helped by her KSR-level of creativity, is indeed painstakingly advancing along the road of progress in the useful arts, where indeed the road ahead is paved with subject matter that, albeit new, is indeed at the same time obvious to the very same PHOSITA.

    Thus, the problem is indeed to find a way to cut through all the lawyer’s billshirt and, no messing about, irremovably ear-tag such subject matter with the label it deserves…..obvious.

    1. Great.

      That’s a 103 argument. Here the attempted reach is a 101 argument.

      Some just might say that which section of law that is applied matters.

      1. 101 or 103? I agree it’s a serious choice to be made. Under the EPC for example, you can take the 101 route (as London prefers), or the 103 route as Munich (prefers), and you’d better get it right. Not sure though, whether the USA has made its mind up yet.

        But it comes to the same thing in the end though. You just need to know, when you do your cooking, whether the court wants its breakfast egg served sunny side up, or over easy.

        1. But it comes to the same thing in the end though

          Real lawyers know that the ends NEVER justify the means.

          Sorry MaxDrei – it really does make a difference.

          That’s kind of the critical point here.

          1. The biggest difference is that if you choose 103 you may have to spend hundreds of thousands of additional dollars on “experts” to navigate through a bunch of extra-statutory “secondary factors” (“hey, lookie, these other people who filed reams of patents on similar j nk chose to take licenses from us, therefore …. non-obvious!”).

            1. The biggest difference

              The biggest difference is that they are separate parts of the law – directly so written by Congress in 1952 in retaliation to a scourge of Judicial Activism

              It’s not a small difference.

          2. That the ends never justify the means is not the point here. It is no more intellectually rigorous to filter under 103 than under 101. Either way is equally compatible with the law, and there are good justifications for both ways.

            If you filter under 103, you pronounce as “eligible”, for the grant of 20 years of rights to exclude, a claim to something statutory that isn’t new. Say, “A digital computer.” To hold such a claim eligible is offensive, and indefensible, to a great many people. They would point to the words of the patents clause and the statute and assert that this meaning cannot be what the writers of those venerable documents were using the words of the English language to mean.

            Eligibility is, in theory, an absolute matter. If you filter under 101, however, you do it relative to the state of the art, as opposed to absolutely. To many readers of this blog, that is offensive. But relative to the great society in which we all exist, that readership is not significant and not representative of any point of view worthy of attention.

            If there is a straight choice, where to filter, it can and should be made pragmatically. If you don’t agree, say with precision where the mischief lies, of filtering under 101.

            1. But relative to the great society in which we all exist, that readership is not significant and not representative of any point of view worthy of attention.

              B$.

              The ends do not justify the means.

              Ever.

            2. With precision then, false filtering under 101 (misusing that part of the law to do something that part of the law was not intended to do) is the mischief.

              Clear and precise enough?

            3. Max, we have no choice be to include dissection in 101, to first see if the claim’s novel subject matter is ineligible, because Rich, Federico and crew removed, intentionally removed that is, “invention” from the patentability inquiry. The only question per Rich that must be asked is whether the differences over the prior art, as that prior art is defined in 102, were obvious. This excludes an inquiry into whether those differences were statutory.

              The rest of the world still looks to whether the claimed subject matter defines an inventive step. This inquiry is what Rich was trying to remove from the US statutes.

              Offensive? Not really, given what Rich and Federico and the rest of the framers of ’52 did.

              1. Rich, Federico and crew removed, intentionally removed that is, “invention” from the patentability inquiry

                Wrong aim again Ned – that was Congress that did that.

              2. AND – once again – you use the wrong terminology.

                Patent eligbility versus patentability.

                Ned, can you explain why you refuse to use the correct terminology?

    2. LOL – please don’t stop there and read the entire article.

      Then come back and notice that many of the conversations that I have had with Ned on what happened in 1952 (as noted by Frederico) are mirrored in that article. Note then, that it is Ned with his eyes clenched tight that ignores the reality of the changes in patent law – and importantly, WHY those changes were made.

      Read the entire article. Please. Do.

    1. What are you quoting from?

      Lengthy rant at the usual place where microphones are regularly provided to poor, persecuted little guys like Ray whose righteous grievances might otherwise never be heard.

  30. Hey anon, a little off topic, but without resorting to the interbuts can you tell me who said:

    “As we refrain from granting patents on inventions that are not new, we must also refrain from granting patents on those inventions which would arise spontaneously given the need or the desire for them, as the yelp of the dog surely follows from stepping on his tail, or with only a nominal expenditure of time, effort, money or wit – especially if the invention is one of real utility likely to meet with substantial or popular demand”

    If you can’t get it right off hand tell me and I’ll give you a multiple choice if you want.

    1. Also, again, without resorting to the interbuts, who said “All an invention is … is something which has been found out, or devised, or discovered” (complete with oxford commas)?

      1. While you’re thinking about it, perhaps you can tell us who said “The invention is the thing that has been produced by the inventor”.

      1. gd it ned I was hoping for without the interbuts!

        But yes, it’s a good article. And considering the author it is an especially good article. But what is surprising is what we hear from the author. Perhaps if we actually had implemented his “standard” of refraining from issuing certain types of patents then the 101 software/business method etc. “war” need never have happened. But of course, somewhere along the line, his dedication to this “standard” that he would have liked to have seen in 103 got lost somehow.

        “or with only a nominal expenditure of time, effort, money or wit”

        Right there, 99% of software and business method applications go right down the drain in toto. But somehow this standard was lost.

        1. I think you miss the major point of discussion, long on these threads about the appropriateness of the different sections of the law.

          For example, the avoidance of the conflation of patent eligibility and patentability.

          You do realize that your find supports my various positions, right 6?

          1. Anon I’m quite aware of the “discussions long on these threads” about that. I was posting to see if you a. knew who said the above, and I was eventually going to get around to b. whether you agreed with his position on 103.

            Yes, this is a 101 thread, but I posted off topic, and I believe I stated that at the beg.

            I think the article is important because it shows Rich’s state of mind (in a looooooooot of ways actually, beyond the quotes I posted, read the article if you want to glimpse his thinking a bit) around the early 60’s. He shows that he is hyper aware of the different people acting in different ways within the patent system, how ways of thinking and uses of various language determine how legal conclusions are ultimately reached, and how he wanted to simplify simplify simplify the patent system. Along with many other things actually. For instance he wanted to hold the patentability of claims to a pretty daggon high standard under 103 that would have pretty much done away with most of the need for 101’s (except for utility). In fact, if we held people to as high of a 103 standard as he wanted then in fact there may be no need for 101’s except utility, essentially 101 gets swallowed by 103. And I can see why that total, comprehensive, view of the whole system might appeal to him. It helps to explain why he would do the damage he did to so many aspects of patent law. If you apply 103 the way he wanted us to then practically all abstract ideas go down the drain under 103, right from the get go.

            Unfortunately his ideas on 103 did not take a firm hold, thus by the 90’s we were left with the worst of “both worlds”, practically no 101 save for utility, a weak 112, and a weakened 103. Perhaps he spent so much time and effort addressing functional language, 101’s etc. that he let the high standard of 103 that he meant to replace them all with fall by the wayside.

            After reading the article I wonder if me and Rich from the 60’s would even be all that opposed to one another. We’re both very much for simplification. And from what I read I think he was wise enough to listen if I had told him that lumping basically everything required to get a patent up into 102, utility, and 103 provides for an easy target in 103 for the bar to eventually disrupt away from his vision for 103 and thus bring us into the wild wild west of patenting. He may have thought that his conception of 103 would prove resilient enough to last the ages and never be worn down to what it is today, or perhaps he might have thought his ends justified the means regardless of whether 103 got worn down or not.

            Oh and also I liked the part where he defined the “invention” as exactly what i was trying to tell you the other day and which you fought tooth and nail. It really brings the ol’ 1952 act right into focus on that account re 112.

            Though no I don’t know how this opinion piece by the good judge “supports your ‘various positions'”. It is his opinion, his vision for what patent law should be along with some reasoning as to why. Not what the law necessarily is.

              1. Big differences between what NWPA? Me and Rich? Lulz, I never said there weren’t differences. Sure he went to lawschool (though I don’t know if he ever went to Eschool). Either way he was a blowhard that was pro-regulation, I’m somewhat less so on both accounts.

                And I don’t know about him “respecting” the law given what he just got done saying in his paper. He obviously did not respect the pre-1952 law. Then in this paper he was outright expressing his disdain for how the whole 1952 statute was being implemented throughout the whole paper (which was actually a speech given live turned into a paper) and how his colleagues were discussing topics. Then he was telling us all how we should be doing it soooo much better. And giving decorating advice to the PTO.

                Frankly I think that Rich thought that patent law should be doing more than it was and he set out to make it that way, explicitly by disrespecting the law as it was. And he surely did so.

              2. 6, again you are just so lost. You are not separating his writing and opinion of how things should be and the application of the law. Rich applied the law and adhered to the law as judge.

                Read his actual opinions at the Federal Circuit. I think I read just about everyone of them.

              3. “Read his actual opinions at the Federal Circuit. I think I read just about everyone of them.”

                I’ve read quite a few of them. And what I read quite often makes me sick quite frankly. But now that I’m privy to his views on 103, now I start to understand why he was so liberal with other restrictions. The man had a hard-on for a hard 103 and thought it could do the job of everything else. Of course, time has shown us that it cannot, but in the 60’s he didn’t have the last 50 years of exp to guide him.

              4. 6,

                He had the statutory law (you seem to be falling into the same trap of wanting common law evolution in an environment where such is not proper).

                Remember what Judge Markey said?

                Here let me remind you:

                “[o]ur concern here is with plain, simple disregard of the statute—
                evidenced in the promulgation of some words and phrases that muddy
                the decisional waters and other words and phrases that render the law
                as written by congress a nullity
                . In sum, when it comes to patent cases,
                the statute is the law—and court opinions containing language and
                concepts contrary to the statute are unlawful
                .

                Howard T. Markey, Why Not the Statute?, 65 J. PAT. OFF. SOC’Y 331, 331 (1983).
                (italic emphasis in original, bold emphasis added)

            1. 6,

              You need to re-read the article.

              Try it this time without the rose-colored glasses and the attempt to squeeze what Rich is saying to fit into your world-view.

              You might be surprised at what you find.

              1. I don’t know what you’re talking about anon, I’ve already read it practically 1.5 times. There isn’t anything new to be seen there. I see what all he says that “backs up” your tar ded views. I also see what all he says that goes a full 180 degrees against your views. But the best part about the whole paper is the insight into what he was thinking at the time.

                The one thing I’m still curious about though is: Are you agreed with Rich about what we must restrain from allowing to be patented re 103?

              2. I don’t know what you’re talking about anon,

                LOL – you need to put your belieb system on the shelf and read with an open mind.

                But I am curious, what exactly do you see that goes against my views 180?

              3. “But I am curious, what exactly do you see that goes against my views 180?”

                The last two quotes I asked you about originally. Re what the “invention” actually is. Both in his opinion, and presumably under the law as he saw it.

                We just got done arguing about this very point the other day with me espousing his view. Looks like it’s me and Rich v you on that one.

              4. Reposted for you since you’re probably too lazy to find them.

                ““All an invention is … is something which has been found out, or devised, or discovered”.

                ““The invention is the thing that has been produced by the inventor”.”

                Note here that he is not talking about what was “claimed”. But rather what the “invention” fundamentally is.

                He was aware of the distinction between what was claimed and what the invention actually was. That is to say, bizarrely the father of our patent system that eventually evolved the cult of the claim was not himself an adherent of that cult.

              5. Note here that he is not talking about what was “claimed”. “‘

                You are taking the discussion out of context 6.

                This has nothing at all to do with the Liivak notion – nothing.

                Stay focused on what the context is.

              6. “You are taking the discussion out of context 6.”

                Um, no, I’m not. The sub-context is his explaining what people should be regarding as “the invention” within the wider context of his discussing how the vague concept of “invention” (a different form of the word btw according to him) was replaced by 103. That sub-context is the the same sub-context as the Livak paper.

                Judge Rich makes this distinction/designation of the term “invention” on purpose. So that people will stop trying to bring in the concept of there needing to be “invention” under 103. He wanted to get away from people thinking about that. He wanted to change their use of language. So he wanted to explicitly distinguish between what the applicant produced (i.e. the invention) that led to the drafting of an application in the first place, and in what was then drafted up and claimed and was subsequently to be judged for obviousness. And he felt like that was the new statutory scheme and everyone needed to get on board.

                That’s what the title of the article is talking about. How “invention” was vague back then so he wanted to fully set forth what it was and get people away from using the term. He wanted to do that because, to him, the invention was exactly what he set it forth in those quote to be. And then he wanted to distinguish that from what he felt should be judged for obviousness.

                In any event, I’m not going to sit around and argue about it any further. You’ve obviously set your viewpoints in stone and no amount of Judge Rich, or the entire en banc fed. circ. telling you to your face irl would change your view.

              7. Um, no, I’m not

                UM, yes you are.

                Simple reality check 6 – check the dates of the Liivak article and the article you are currently referencing .

              8. Um I know both dates. And if you feel like the “context” is different than that which I just told you then feel free to tell me what you think the “context” is.

              9. then feel free to tell me what you think the “context” is.

                LOL – Why would I do that? Do you think that you would accept what I told you (especially as you have already not done so?)

                Better path forward for you 6 – (one that if you ever made it into law school, as well) – the Socratic method. Figure out for yourself why. You do have a starting point in knowing that the context is not what you originally thought. Now think about why.

              10. “Do you think that you would accept what I told you”

                If you can get it “right”, then sure I will. Though I’ve already posted the “context” and when you end up putting down the same thing it won’t surprise me. Course, you could fck it up, psychopath style, and it won’t surprise me either.

                And no, I’m not going to sit and guess at what your position is re re. If you don’t want to tell me then we’re done talking.

              11. If you can get it “right”, then sure I will.

                Your passive/aggressive streak is in full gear here 6 – you clamor on and on about me “being right” and then turn around and post this type of nonsense?

                You just do not seem to be able to handle sitting there knowing that you need to learn something and not have it spoon fed to you. (not that you appreciate when things ARE spoon fed to you – since you do not – that belieb system of yours typically getting in the way, and all.

              12. “you clamor on and on about me “being right” and then turn around and post this type of nonsense?”

                It was a deliberate swipe at your right/wronging lol. Because I’m quite sure you think you own the truth on this subject, just like all other subjects.

                But look, I’ll give you a fair hearing regardless. Go ahead.

              13. “Not sure what “fair hearing” you want to give to me 6 – the difference in context is clear.”

                If you’re just talking about a “difference in context” between the livak paper and Rich’s paper then sure, there is a “difference in context”. Livak wants to overthrow the cult of the claim that has sprung up. Rich was speaking before the existence of the cult. I wonder if he died/retired before it sprung up?

                But as to what the invention is, there is no “difference in context”. Both of those men are in 100% agreement. Livak is trying to bring back Rich’s oldschool view.

              14. “Why should I inform him? He is not the one making the mistake of context (you are).”

                Oh riiiiiight, it’s me that’s making a “mistake” “of context” (I like the psychopathism of “making the mistake of context”). Riiiiight Billy. Though yes he’s totally not “making a mistake of context”.

                “Why should I inform him?”

                Because you seem to think that there is some “other context” that he is writing in besides that which is nothing more than trying to bring back the oldschool view. Though your psychopathic need for secrecy prevents you from sharing what that “other context” supposedly is. I guess it’s probably the “context” of “destroying all of the patent system of evar” as is your standard fall back “context” for articles you don’t like lol.

                In any event, I’m done talking to your mentally ill ar se about this.

      2. When was that written? 1964? Golly that was a long, long, long time ago. Eons before programmable computers were invented or anyone ever thought of processing information with them. That must be why Judge Rich never once mentions them.

        1. Yep 1964.

          But look at his vision for 103. If that was how 103 was applied today then practically all the judicially excepted patents of today would have been invalidated under 103. In effect, 101 would have been swallowed by 103. Things begin to make a little more sense as to why he gave the decisions he so often did. He wanted to bundle all the really hard hurdles up into a super 103.

          1. 6, well his attitude about dissection and cases of their ilk, Hotel Security, made the man a nominalist of the first rank. Sprinkle a claim with old, but eligible, subject matter and one has to move on to 103.

            As anyone with even half a brain would recognize, this would essentially read out of the statute any limitation on patentable subject matter rendering 101 a formality.

            And this is exactly what happened as even the dimmest of bulbs not of the patent bar could see the slow expansion of patentable subject matter into area long forbidden, and could only think that there was something amiss in the Federal Circuit.

            1. “6, well his attitude about dissection and cases of their ilk, Hotel Security, made the man a nominalist of the first rank. Sprinkle a claim with old, but eligible, subject matter and one has to move on to 103.”

              If you read his article he seems to be of the opinion that 112 and 101 should simply not really be of concern. There’s novelty, utility, obviousness, and then (repeated from novelty) STATUTORY BARS. And that’s it. Kind of odd to me. But it does explain a lot of what came out of his mouth. And the subsequent weakening of those sections to all but absurd levels.

              On the other hand, if we applied 103 how he wanted it applied you may not even need 101/112 (other than perhaps for what are essentially formalities) all that much.

              “As anyone with even half a brain would recognize, this would essentially read out of the statute any limitation on patentable subject matter rendering 101 a formality.”

              Yep. But he kind of felt like he wanted that. Remember, he was a big fan of the “diapers changed/washed by delivery truck” concept/business and thought it totally needed to be patentable/eligible.

              A strange man indeed. I actually wish he’d have written a short autobiography.

            2. >expansion of patentable subject matter into area long forbidden

              Like what Ned?

              And, your analysis of removing 101 is ridiculous. You know Ned think about what you said some more. Old elements (as if that is bad, which it is not) and non-statutory subject matter (you say).

              Sounds to me like 103 is the right thing because your analysis uses 103 to determine 101 except you’d like to do it without any formal analysis. Just a doesn’t add significantly more with no facts.

              1. Both Ned and 6 kind of missed the part that describes the “mere codification” aspect as pure B$ from those that did not want to change or recognize what happened in 1952 – in direct response to the over reach of the judiciary and the anti-patent stench that had developed there.

                History.

                Repeats.

      3. Have you read the article, Ned?

        The article decries many of your current tactics, describing you well as one of those who don’t “get” what happened in 1952.

  31. Warning for the feint of heart: the typical malcontents are kicking up a viscous dust storm below.

    Any attempts to have actual conversations, or address meaningful points of law will require protective goggles to get by the Malcolm CRPfest.

    1. If you believe that “data structures” are eligibile subject matter, Billy, just tell everyone exactly why you believe that.

      We already know that you agree that “information per se” isn’t eligible for patenting.

      Does the mere recitation of the word “structure” change the outcome? Are you going to tell your clients to use the term “information manufacture” instead? Is that the sooper dooper awesome answer for your clients?

      If not, then, what is your answer? Tell everyone, in your own words (your mommy can help you — we won’t ask) clearly and unambiguously what I need to add to some generically described “new” information (or “data”) to convert that information into eligible subject matter.

      You already know my answer. You know my answer because I’ve told everyone my answer a thousand times, in plain terms. You know my answer because, unlike you, I’m not a sniveling coward incapable of articulating my views and defending them.

      So go ahead, Billy. The floor is yours. Use your own words and tell everyone exactly what we all need to add to our “new” information “innovations” to make them eligible for patenting. And not just eligible today. Eligible fifteen years from now.

      Go ahead.

    2. If you believe that “data structures” are eligibile subject matter, Billy, just tell everyone exactly why you believe that.

      We already know that you agree that “information per se” isn’t eligible for patenting.

      Does the mere recitation of the word “structure” change the outcome? Are you going to tell your clients to use the term “information manufacture” instead? Is that the sooper dooper awesome answer for your clients?

      If not, then, what is your answer? Tell everyone, in your own words (your mommy can help you — we won’t ask) clearly and unambiguously what I need to add to some ge nerically described “new” information (or “data”) to convert that information into eligible subject matter.

      You already know my answer. You know my answer because I’ve told everyone my answer a thousand times, in plain terms. You know my answer because, unlike you, I’m not a sniveling coward incapable of articulating my views and defending them.

      So go ahead, Billy. The floor is yours. Use your own words and tell everyone exactly what we all need to add to our “new” information “innovations” to make them eligible for patenting. And not just eligible today. Eligible fifteen years from now.

      Go ahead.

      1. unlike you, I’m not a sniveling coward incapable of articulating my views and defending them.

        LOL – lovely AOOTWMD.

        How about that simple question on ‘oldbox’? among many others that you have run away from.

        1. Nobody could have predicted that Billy would play his little game of sit-n-spin.

          That’s what happens when you throw Billy a big fat softball. He whiffs. Every. Single. Time.

          What an incredible, hypocritical t 0 0 l.

    3. anon, that you describe those who argue rationally as malcontents, and those who argue the way you do, emotionally, as normal, is somewhat of a laugh.

  32. Dennis, simple question, have you ever read Hotel Security (business method), Guthrie v. Curlett (same), In re Russell (CCPA, printed matter), the line of cases that Rich did not follow in State Street Bank and that Stevens in Bilski wanted to follow?

    Let me summarize: if that which is new is nonstatutory, and that which is statutory is old, the claims are not patentable.

    Does that analysis ring a bell? It is the analysis of Mayo, Alice and now here in Digitech. Stevens may have lost a battle in Bilski, but he obviously won the war.

    1. Once again, Ned – you carpet bomb with pre-1952 law, ignoring the terms and getting your version wrongly mixed up with what the law is.

      Stevens – in Bilski was merely one of four.
      In Alice, that four has now become three.

      Neither 3, nor 4 are 5.

      1. anon, careful there anon, Mayo and Alice were both unanimous. They both employed the Hotel Security analysis.

        1. …and how goes that answer to the simple question as to why Congress would create a limited defense to business method patents, if – as you hold, they are non-statutory to begin with and NO defense is even required?

          Shall I post the Judge Markey “words of Congress a nullity” quote again for you? After all, your version seeks to make the words of Congress a nullity.

          1. anon, why?

            We were attempting to get a broad prior user right passed by congress. (I was then a member of the boards of both the AIPLA and IPO.) The small business lobby resisted. But decisively, the university lobby all but killed the bill.

            As a compromise, we got the universities to agree to limit the prior user rights to business methods as the Federal Circuit in State Street Bank had just refused to follow Hotel Security and a large number of other cases that had determined that business methods were nonstatutory. This unexpected expansion of subject matter, which was not taken up to the Supreme Court (cert. denied, ___ U.S. ___, 119 S.Ct. 851, 142 L.Ed.2d 704 (1999) for some strange reason that no one can fathom, seemed to permanently alter the landscape so that business methods were not categorically excluded.

            Congress did not set out to pass a prior user rights directed to business methods. That was a compromise position after long negotiation. It was further a response to State Street Bank and in view of the fact that the Supreme Court did not take it up on certiorari.

            1. As mentioned previously, your actions and involvement only serve to indict your ineptitude.

              Trying to argue that here as a “strength” takes gumption, but is highly non-persuasive.

            2. …and you STILL have failed to indicate the ready and easy answer that COULD have been made (had your position been correct): “business methods are not statutory, so no defense needed

              Obviously – (and seemingly painfully so to everyone but you and your clenched tight eyes) this course was not taken.

            3. We were attempting to get a broad prior user right passed by congress.

              Interesting – and a separate topic altogether.

              I wonder if people recognize what it was that you were up to.

              I wonder if people recognize exactly how devious the prior user right is.

              Let’s take a moment and look at the current prior user right from the AIA (fully recognizing that your attempts may have been different).

              The current prior user right is a submarine tactic that lessons the value of patents, and serves the benefit of those who do not want to share like other users of the patent system.

              The current prior user right only surfaces after someone else goes through the trouble and jumps through all of the hoops to obtain a valid US patent.

              The current prior user right is a defense to that rightful patent owner attempting to enforce his rightful patent.

              The current prior user right inoculates not only the holder of the prior user right, but inoculates the prior user right holder’s customers, opening up the ENTIRE secondary market to protection against the rightful patent holder (the rightful patent holder obtains no benefit and yet those goods sold by the prior user rights holder are deemed exhausted as to the rightful patent holder).

              The current prior user right goes WAY too far in removing the “stick” aspect that has served the patent system well. Both the carrot and the stick are important aspects of promoting the progress by having a vigorous patent right. Those not wanting to share love the prior user right because, not only do they now not have to share, not only do they not have to worry about someone else who is willing to share, they enjoy the free-rider effects of that other person’s willingness to share to keep out others from the market, since the rightful patent owner’s patent is still valid against those others without the prior user right.

              That you were active long ago in such an effort is really not all that surprising Ned.

              That you seem oblivious as to why this is NOT a good thing is also, not all that surprising.

              It is aspects like this that belie your so-called profession of being an advocate for the patent system. With friends like this, who needs enemies?

              1. anon, I recognize valid reasons why a prior user right may weaken a patent system. But when secret processes, or factories under development, are not prior art, one needs a prior user right.

              2. …one “needs” a prior user right?

                What for?

                And how does this reason tie into the CORE reason for having a patent system which calls out for sharing information and being rewarded for that sharing (you know, the fundamental aspect of Quid Pro Quo)?

                Your “need” does not – and cannot – be matched with why we have a patent system. Your “need” fully sounds in the realm of secrets and NOT sharing.

                Do you realize how hypocritical you are coming across speaking of “needs” and the recognition of weakening the patent system and YOUR role in trying to change the patent system for these effects?

                Take a step back Ned.
                Pause.
                Think.

                You are admitting to actions not in accord with the constitutional grant of authority to have a patent system. You identify with “needs” that while in fact may be very real, are not “needs” served by the patent system.

                I do not think that you grasp the magnitude of your admission that you just made.

              3. Anon,

                s35 §100 (f) The term “inventor” means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.

                s35 §101 Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

                Just because someone files for a patent doesn’t mean that they are the inventor and only the inventor should be awarded a patent.

                Had s35 §100 (f) said “… and applied for a patent.” or if s35 §101 had said “Whoever invents or discovers (and also applies for a patent) any new…”

                Quite clearly, if they weren’t the first then they aren’t the inventor and shouldn’t be able to obtain a patent, and the law says so. Change 100 or 101 and you’d convince me. Otherwise, fuggedabaadit.

                So, if you’re adamant that the person who files for patent and who is not the actual inventor should get a patent then it seems only natural that the patent they are granted is “hobbled”.

                The non-inventor is free to practice their non-invention and compete with the inventor and thereby provide benefits to the wider society by lowering prices, if they see fit, but to stop others from practicing what they did not invent is abhorrent.

              4. Bert, I fundamentally agree.

                A second “inventor” is not really an inventor. He never had a right to a patent in the first place.

                None other than John Marshall said this, and as a matter of constitutional law.

              5. So, if you’re adamant that the person who files for patent and who is not the actual inventor should get a patent

                Um…. that is not my position.

                It’s a nice strawman though.

              6. I’ll summarise.

                Ned – attempted to get broad prior user rights and you criticise him for it

                You criticise prior user right – say it is devious

                You analyse current prior user right – say it serves “those who do not want to share”

                You note that a patentee has to jump through hoops

                You state that:
                it is a defence against enforcement by a “rightful patent owner” of his “rightful patent”,
                the “rightful”patent holder obtains no benefits,
                current prior user right “goes WAY too far”.

                There’s 3 particular viewpoints which I can see with a (broad) prior user right:
                For it (the broader, the better)
                Against it (the narrower the better)
                Or that it shouldn’t exist at all, as per my previous post.

                Your words, to me, show that you are against a (broad) prior user right because it doesn’t fulfil the quid pro quo of the patent system.

                You repeatedly use the word “rightful” to describe the patentee and the patent. I say that according to the statute your description is wrong because the patent has been granted to someone who did not invent something and therefore cannot be described as an inventor (of that particular thing).

                Sounds like you’re adamant that a person who files for a patent and isn’t the actual inventor should get the patent.

                Hardly a strawman.

                Perhaps my interpretation of your words is wrong, if so then I’d be all to happy to apologise.

                I always enjoy our discourses and I look forward to seeing a response.

              7. Sounds like you’re adamant that a person who files for a patent and isn’t the actual inventor should get the patent.

                Sorry Bert – your summary is wrong.

              8. You repeatedly use the word “rightful” to describe the patentee and the patent. I say that according to the statute your description is wrong because the patent has been granted to someone who did not invent something and therefore cannot be described as an inventor (of that particular thing).

                This is not even close to being on point to the Prior User Right system.

              9. You seem to ascribe to the (debunked) Madstad view of “inventor”

                Sorry, but if you want to have a legal discussion, you need to first disabuse yourself of that notion.

                I suggest that you first understand that invention is more than the conception or inchoate right stemming from conception.

              10. Bert (and Ned, if he is willing to listen),

                The Prior User Right discussion was reflected in the words of Congress when Congress put in place the first version to protect business method patent holders and still afford a limited defense.

                Note that in the original legislation, even this limited defense was intended as a temporary measure, while FULLY having business method patents remain a permanently allowed item under the law.

                Eric Guttag has a current post at IPWatchdog that goes into this a bit. Even better than his current post, though is a link to a post that he wrote after the Bilski decision that explains this in more detail.

                In the comments section of that earlier post are messages from a writer named “scrappy” that you should read.

                I welcome your comments after you have taken the time to read and understand our legal history on this subject.

                The link: link to ipwatchdog.com

      2. Neither 3, nor 4 are 5.

        This nonsense hardly rebuts Ned’s point: if that which is new is nonstatutory, and that which is statutory is old, the claims are not patentable. …It is the analysis of Mayo, Alice and now here in Digitech.

        Regardless of who said what about “business methods” (which Billy never seems able to define — go figure), the analysis in Mayo (which Billy railed against for years) is the law and it’s not going anywhere. It’s here to stay. Why is that the case? Because it’s just basic logic and any other analysis just opens the door to wordgames that turn subject matter eligibility considerations into a joke.

        This is really hard for Billy to accept. For years he railed against the analysis and then recently he admitted that it was a “banal” proposition. And yet Billy still loses his shirt everytime anyone brings it up.

        Go figure.

        1. This nonsense hardly rebuts

          It perfectly rebuts the statement that what Stevens wanted in Bilski has become the law.

          Regardless of who said what about “business methods”

          UM, no – not regardless, as that is the point here.

          Not sure why you are fantasizing about me losing my shirt…

          1. Not sure why you are fantasizing about me losing my shirt…

            Shirt is another way of saying a different word that your mommy used the last time she found you using the computer after your bedtime.

          2. It perfectly rebuts the statement that what Stevens wanted in Bilski has become the law.

            Uh … no, it doesn’t, unless you believe that Stevens would be unhappy with Mayo, Alice or this case, each of which already has or will fatally impact the enforceability of quite a few “business method” patents.

            I’ve been telling you for years that the wind is blowing in one direction since the State Street debacle and there’s good reasons for that. A lot of “business method” claims (and a lot of other method claims, too) are very susceptible to attack under multiple patent statutes. Once we get the recalcitrant know-nothings and patent worshippers like Ra ndy “essence of electronic structure” Ra der out of the picture, the wagon rolls a lot more smoothly.

            But please keep digging, Billy. It’s mildly entertaining, if nothing else.

            1. MM, the exiling of Randy R is going to go a long way to getting the Federal Circuit back on track.

              Newman may still resist, but she never seem to get votes.

            2. Uh … no, it doesn’t

              UM, yes it does.

              In case you did not notice, the number 4 dropped to the number 3 in Alice.

              You are moving in the wrong direction. And given that both Breyer and Ginsburg are among the most ancient Justices (read that as sooner leaving the bench). Your digging is getting faster and more furious – but is only creating a deeper hole for yourself.

              1. both Breyer and Ginsburg are among the most ancient Justices (read that as sooner leaving the bench).

                LOLOLOLOLOLOLOLOLOLOLOLOLOLOL.

                And then what, Billy?

    2. Logic and reason generally seems to come out ahead in the long run.

      That’s why anyone with open eyes can see exactly how the “battle” over the patent eligibility of abstractly claimed “computer-implemented” “innovations” is going to end. Nobody wants a patent system tailor-made for low-life grifting lawyers and like-minded l 0sers who couldn’t actually implement their claimed “innovations” themselves if their lives depended on it.

      Try to imagine this claim being granted: “I claim all methods of programming a computing machine to receive data regarding at least one individual, compare that data to data in a database to create a comparison result, then use that comparison result to target said at least one individual for the receipt of information regarding available treatments for [insert trendy new disease here], wherein said computing machine is any computing machine that ever existed or that will exist during the lifetime of the patent, provided that said computing machine is capable of being programmed as described in this claim by a person who actually knows how to program said computing machine, and regardless of whether there are no recited differences in the structure of the programmed computing machine relative to prior art computing machines except for possibly the abstract definitions given to the data received and output by said computing machine.”

      Nobody writes those kind of claims, of course. That would give the game away. But thousands of claims have been granted that cover the exact same kind of j nk that this claim covers, and worse. Why? What’s the purpose? “Investors” will cry if we don’t give them something shiny to gamble on? Give us a break, already.

    3. Stevens may have lost a battle in Bilski, but he obviously won the war.

      Not just Stevens, in particular, but logic and reason ge nerally. But logic and reason do tend to emerge victorious in most situations when given the chance. Even the patent system arose from our recognition of the benefits of applying logic and reason to solving certain kinds of problems.

      That’s why anyone with open eyes can see exactly how the “battle” over the patent eligibility of abstractly claimed “computer-implemented” “innovations” is going to end. Nobody wants a patent system tailor-made for low-life grifting lawyers and like-minded l 0sers who couldn’t actually implement their claimed “innovations” themselves if their lives depended on it.

      Try to imagine this claim being granted: “I claim all methods of programming a computing machine to receive data regarding at least one individual, compare that data to data in a database to create a comparison result, then use that comparison result to target said at least one individual for the receipt of information regarding available treatments for [insert trendy new disease here], wherein said computing machine is any computing machine that ever existed or that will exist during the lifetime of the patent, provided that said computing machine is capable of being programmed as described in this claim by a person who actually knows how to program said computing machine, and regardless of whether there are no recited differences in the structure of the programmed computing machine relative to prior art computing machines except for possibly the abstract definitions given to the data received and output by said computing machine.”

      Nobody writes those kind of claims, of course. That would give the game away. But thousands of claims have been granted that cover the exact same kind of j nk that this claim covers, and worse. Why? What’s the purpose? “Investors” will cry if we don’t give them something shiny to gamble on? Give us a break, already.

      1. lol

        “grifters”

        “actual implement”

        more “points in law” that Malcolm can clearly verify with proper citations.

        Oh wait, he cannot.

  33. The court declined to discuss how it would hold if the claimed data structure had been linked to a physical item such as some sort of computer hardware. Of course, this physicality test as an absolute rule was seemingly rejected by the Supreme Court in Bilski.

    Bilski is clearly not apposite to the question on the device profile claims. The disfavored M-or-T test was not intended to help determine whether a claim fell within the four statutory categories – rather, M-or-T was meant to be used after that threshold was already met, to determine whether the claim ran afoul of the “abstract idea” judicial exception.

    I hope the only reason you didn’t mention In re Nuijten anywhere in your post is simply because you can’t spell Nuijten. As the panel mentioned, that’s the more appropriate precedent here. Regardless of your argument about whether the device profile claims require some sort of physical instantiation, Nuijten held that transitory embodiments fall outside the four statutory categories under 101, and the device profile claims clearly encompass (as the panel also mentioned) transitory embodiments.

    1. Nuitjen is controlling law – but to anyone with any level of intelligence and appreciation of the physical universe in which we inhabit (Malcolm, clearly excluded), the decision is unsound.

      Signals have been recognized as having the “physicality” requirement, and the decision rests on the slender thread of “transitory.”

      Look up into a clear night sky to see why that view of “transitory” is, for lack of a better phrase, completely bogus.

      1. to anyone with any level of intelligence and appreciation of the physical universe in which we inhabit

        Billy was really hoping he could patent those “new signals” (does anybody wonder why?). But he can’t. How many years ago was that now? And he’s still crying about it.

        Good luck overturning Nutjen, nxtcase.

    2. How do you figure a device profile is transitory? You mean because it might be updated in a year? What is the length of time that defines transitory.

      If a device profile is transitory, then everything is transitory. Have a glance at the pyramids..entropy usually wins.

      1. Actually, a device profile is merely a concept. It isn’t a physical thing, which is the extent that the Federal Circuit took it to, and since it’s neither a process nor a physical thing, it cannot fall within any of the statutory categories. The panel basically pointed out that if “transitory” was bad, then “not even physical” is even worse.

        The other reason I brought transitory versus nontransitory into this is because Dennis made the argument that reciting a “device profile” in the claim inherently requires some sort of medium for it to be a part of. I was pointing out that even if you accept that argument, it still doesn’t satisfy the requirements for 101 under the holding in Nuijten, which would still find that the inherent medium could be transitory and therefore nonstatutory.

        1. Actually Apotu, your position is not reached regarding Nuitjen if Prof. Crouch was right about a medium involved.

          Medium was not indicated in the case to be merely, or only carrier waves or other types of medium that would fail the controlling Niutjen case.

          What happened here was that Prof. Crouch’s “implicit” argument was also REJECTED by the court, who simply refused to read into the claims ANY sense of medium.

          By so refusing to read such into the claims, any discussion on that – in this case – is pure conjecture.

        2. APoTU, I think you miss the point, as does Dennis. Whether the material object that encodes the device profile is ephemeral or not is somewhat irrelevant to the issue of whether the claim as a whole is eligible. The Alice case said that the analysis of Prometheus (Mayo) is the analysis that will prevail henceforth. If the ineligible is combined in the claim with the eligible, there must be invention in the eligible. Simply reciting old, but eligible elements is not enough.

          1. there must be invention in the eligible.

            Ned, are electrons, protons or neutrons eligible, or are they old?

            Your logic is just not sustainable.

              1. Benson improved the computer itself. Without Benson the computer couldn’t convert to BCD (since Benson allegedly pre-empted all BCD conversion). Therefore, while Benson claimed math and was therefore claiming something abstract (raising a question of eligibility under the first prong of the Alice). However, Benson passes the second (“something more”) prong of the Alice test as it improves the computer itself.

                Alice overturns Benson.

              2. Les,

                Was the Benson claim to the BCD process, limited to calculation on a computer, or was the claim specifically limited to improved computer architecture?

                There is some argument that it was the latter, especially wrt the claims involving the shift register.

                But, I do not believe that the applicant there argued that he or she was improving computer architecture. The SC thought the case was about software.

              3. The SC thought the case was about software.

                Actually Ned – the exact opposite, as witness by the quote that I must continuously remind you of.

                You know the one, the one that states “We do not so hold

              4. I’m not sure what your points are Ned.

                The Courts said the invention could only be used in a computer. That was the basis of their ruling. They said it would preempt all uses of the method as it was only useful in a computer.

                Whether implemented in software or hardware, it still was an improvement to the computer and passes the second prong of Alice.

                Overturned.

              5. Les, there is a distinction to be made: one an improvement to the computer and the use of an old computer.

                Had the claim been truly limited to computer hardware executing the algorithm, there would have been no problem at all.

                But “software” does not improve the machine qua machine. It is by definition the object of the machine.

              6. “But “software” does not improve the machine qua machine. It is by definition the object of the machine.”

                That is absurd Ned.

                If software didn’t improve the machine, no one would by it.

                Software improves a desk top computer from an door stop to a word processor. To say otherwise is intellectually dishonest posturing.

              7. “Les, People buy GP digital computers all the time. Software is separate and typically licensed.”

                I agree with that. That’s my point.

                Why would they buy it if it didn’t improve the computer?

              8. Sorry, Les, I understood you to say that no one would buy a GP digital computer.

                But the issue here is a programmed computer where the software is simply executed. The computer itself is old.

                Buying, selling, building, importing a GP digital computer cannot be covered by such claims. The computer is old and generic.

                So the only infringement is by use, if at all. These really are method claims, not so?

                Now, add something to the claim that ties the software to the computer to become part of it, then I change my position. Such is eligible as a new machine.

              9. Sorry, Les, I understood you to say that no one would buy a GP digital computer.

                But the issue here is a programmed computer where the software is simply executed. The computer itself is old.

                Buying, selling, building, importing a GP digital computer cannot be covered by such claims. The computer is old and gen eric.

                So the only infringement is by use, if at all. These really are method claims, not so?

                Now, add something to the claim that ties the software to the computer to become part of it, then I change my position. Such is eligible as a new machine.

              10. Now, add something to the claim that ties the software to the computer to become part of it, then I change my position. Such is eligible as a new machine.

                Ned – think machine component.

                As I have told you many many many times – you cannot “use” the software on ‘oldbox’ until you first add the component to ‘oldbox’ and thus change ‘oldbox.’

                Your views seems to want to be able to wave a magic wand over ‘oldbox’ and somehow have the manufacture and machine component that is software made to be “inherently” already in ‘oldbox.’

                You cannot get there from here. You are refusing to read the claims as you are required to read the claims: as a person having ordinary skill in the art to which the invention pertains – and that PHOSITA knows that you must first change ‘oldbox’ and configure ‘oldbox’ into ‘newbox’ BEFORE you can “use” the software, the manufacture, the machine component.

                If – and only if – ‘oldbox’ without change of any kind inherently has the present capability already inherently ‘in there’ – again – with NO CHANGE OF ANY KIND – then – and only then do you have an issue with patentability. And PLEASE for the love of all that is holy, not that you have not even gotten to patent eligibility with your discussion here.

                You never seem to want to answer the question that I lay before you in regards to why you do not want to treat the two DIFFERENT terms of art appropriately.

                Why is it exactly that you seem incapable of having an honest discussion on the difference between patent eligibility and patentability? It is not as if this is a strange concept to you, is it?

                Why the silence?

              11. anon, “think machine component.”

                Why don’t YOU think machine component?

                You consistently refuse any suggestion that the software be tied to the machine in any fashion.

              12. Ned,

                Your statement has ZERO credibility.

                I have always defined software as a machine component. It is utter insanity for you to think that I have ever held otherwise.

                You have taken complete leave of your senses.

                Is this because of all the issues that I have presented to you for which your lack of answers continues to scream?

              13. Perhaps you mistake the notion of what “tied to” means.

                I have in the past given you simple easy to understand examples.

                One may obtain a patent on a brand new tire. The tire is inherently “tied to” a vehicle, as the functionality (and the 101 utility) of a tire is nothing without the vehicle.

                Are you forgetting about this sense of “tied to?”

                One may obtain a patent on a new type of rivet. The rivet is inherently “tied to” separate work pieces that would be joined together, as the functionality (and the 101 utility) of the rivet is nothing without the work pieces.

                Are you forgetting about this sense of “tied to?”

                One may obtain a patent on a new type of bullet. The bullet is inherently “tied to” a separate gun, as the functionality (and the 101 utility) of the bullet would be nothing without the gun.

                Are you forgetting about this sense of “tied to?”

                Ned, let’s face a few critical and materiel facts:

                Software is not something “in the mind” – as that is not software but thoughts about software.

                Software has an aspect that earns copyright – and we both know that in order to earn copyright, software must have a physical and tangible aspect (fixed in media). Thus, we know that software is not abstract per se.

                Software is a manufacture and machine component, and yes, the utility must be examined so that the utility accords with the proper utility under 101 (but that is not a difficult test to pass).

                Your “notion” that software cannot exist apart from a machine is pure fallacy. It just is not so. “Existing apart” is simply not the same thing as lacking a “tied to.” Tires exist apart. Rivets exist apart. Bullets exist apart.

                Lastly, your continued choice of ignorance of controlling law when it comes the exceptions to the judicial doctrine of printed matter defies sanity.

                I clearly demonstrated that there is more than one type of printed matter, and that the judicial – not statutory doctrine excluding a certain – non all encompassing set of printed matter [call this Set B] has been recognized – under law – to NOT include a different set of printed matter [call this Set C] that carries patent weight.

                Your insistence on mischaracterizing this materiel aspect of law is quite frankly unethical, and if you were to attempt this in a court of law, I would move for – and obtain – sanctions against you.

  34. Dennis: [T]he court’s description of the abstract idea at issue is somewhat confusing. Its clearest statement is that it is the “abstract process of gathering and combining data that does not require input from a physical device.”That statement has the qualities of (1) being well known and old; (2) being totally divorced from any physical device or technology; and (3) focused on information transformation rather than the transformation of anything in the physical realm. These clues here closely follow the machine-or-transformation test that the Federal Circuit implemented in its Bilski decision. Later, the Supreme Court rejected the reasoning that the MoT test was the absolute test, but agreed that it served as an important clue of subject matter eligibility.

    The reason that the absence of a machine or a physical transformation is (and always will be) an “important clue” to subject matter eligibility is that the quintessential abstraction — and the quintessential example of ineligible subject matter — is a disembodied thought.

    It’s important to remember that the kindergarten version of the “machie or transformation test” once adopted by the Federal Circuit and ultimately rejected by a confused and fractured Supreme Court in Bilksi was a very superficial test that was not even capable of keep abhorrent j nk like Prometheus’ claims out of the system (because, everyone will recall, Prometheus’ claims recited a physical “transformation”).

    They lynchpin to the eligibility of any claimed “thing” is always going to be the recitation of new, objective physical structure that distinguishes the structure of the new “thing” from the “things” in the prior art. Similarly, for the eligibility of processes, the lynchpins are going to be (1) a machine that meets the requirements articulated in the previous sentence or (2) a physical transformation that is itself new or that is effected in a new, non-obvious manner. Note that this test is very different and more rigorous than the silly MoT test that was adopted by the Federal Circuit which really was little more than an instruction to play word games.

    When the patent system moves away from the bedrock principles I’ve just described, it necessarily begins to sink into the cesspool. Why is that the case? Because literally every man, woman and child on earth is capable of “innovating” abstractions and we all do so on a regular basis, pretty much routinely. These abstractions might be very narrow and specific to our own lives, but that doesn’t change the fact that (1) they are new and (2) they are just as important and useful to us as any other abstraction.

    Perhaps when the softie wofties can tell everyone how one is to evaluate, e.g., the obviousness of “collection of numbers X” in view of the gadzillions of “collection of numbers” in the prior art, or the obviousness of “432 232 590″ in view of “732 949 2999″, we can contemplate adding their fantasies to the list of patent-worthy subject matter.

    As for who is “confused” about these issues, I’ll just note that many patent attorneys (myself included) have been predicting this trajectory of patent cases for many years. And we’ve been here patiently explaining our views and our reasons for those views for an equally long time. We’re not confused. We’re just patent attorneys who aren’t invested in a deeply broken patent system.

    1. the kindergarten version

      LOL – translation: The RQ/HD will set by her edict what the proper “version” means and it will mean what Malcolm says it means.

      /eye roll

    2. ..and once again, the canard of claims – of ONLY structure – has no basis in law.

      Sorry Malcolm – come back to this reality.

        1. You have a case to cite for the proposition that proper claims are only those of “ONLY structure”…?

          By all means, share that ‘wonderful’ news.

          (the roar of silence is deafening)

          1. a case to cite

            Remember when Billy insisted that I needed a “case to cite” for the proposition that you couldn’t turn a correlation into eligible subject matter merely by appending some old conventional data gathering step prior to a step of thinking about the correlation?

            I do. How’d that turn out for you, Billy?

            News flash for you, Billy: the “case law” evolves in response to persuasive legal arguments based in the logical application of incontrovertible facts to well-considered existing law. Sometimes that means that the old “case law” that was based on an incomplete record or some made-up nonsense that a disgraced judge pulled out of his arse (“essence of electronic structure”, anyone?) gets righteously tossed by the wayside.

            Did you ever go to law school, Billy? Of course you didn’t. You got your degree in legal tr0 lling from Yahoo University.

            Get a life, Billy.

            1. I keep on looking for you to answer my actual post with a cite – and see nothing.

              Go figure.

              Maybe you want to try again and respond on point.

              1. LOL – because expecting you to actually provide law (or facts) to back up your position….?

                Those who have the law, pound the law.
                Those who have the facts, pound the facts.

                Those with neither – like Malcolm – pound the table of “policy”/opinion.

                Keep pounding that table Malcolm.

              1. “Pay attention – I explained this PRIOR to the case decision coming out and after it came out.”

                You explained the case prior to it coming out? Or you explained why essence of electronic structure doesn’t save cases?

              2. I explained this PRIOR to the case decision coming out and after it came out.

                Sure you did, Billy. Why is it so hard for you to articulate your position now?

                Describe for everyone exactly how the structure of this “data structure” differs from the structure of a zillion other “data structures” in the prior art. In structural terms, please. Because it is a structure, after all. Right? It says so right in the claim.

              3. MM I should inform you that “Billy” has already defined “structure” in a way that makes sense to him. On his website he went ahead and tells us that, at least in the context of software, “structure” is “a system of rules” (or something like that, something something “rules”).

                Of course regular readers will likely pick up that a man with OCPD who all the time thinks about rules and laws would think that the “structure” of software is a bunch of “rules”.

              4. I explained why the machine category being satisfied – through both parties stipulations and the issue not before the Court (and that In re Alappat was not on the table in the Alice case serve to knock out your post at 5.2.1.1.1.2

                Pay attention son.

              5. Asked and answered Malcolm.

                This is all accepted case law. If you need additional help, well, find someone else to hold your hand (especially as you have already volunteered admissions against interest in knowing and understanding the exceptions to the judicial doctrine of printed matter that play a role in the Alappat case)>

                Stop dissembling please.

              6. “I explained why the machine category being satisfied – through both parties stipulations and the issue not before the Court (and that In re Alappat was not on the table in the Alice case serve to knock out your post at 5.2.1.1.1.2″

                Pretty sure you have a typo in there somewhere.

                But what does any of that have to do with the essence of electronic structure not saving the instant case?

              7. “No typo – and it saves because the issue was not on the table.”

                What “saves” because which “issue” was not on the table?

                Are you trying to tell me that the “essence of electronic structure” WOULD save the instant case if only that “issue” had been brought up in the case?

              8. “Billy” has already defined “structure” in a way that makes sense to him. On his website he went ahead and tells us that, at least in the context of software, “structure” is “a system of rules” (or something like that, something something “rules”).

                Where’s this website?

        2. (still waiting)

          You have a case to cite for the proposition that proper claims are only those of “ONLY structure”…?

          By all means, share that ‘wonderful’ news.

          (the roar of silence is deafening)

    3. Can Malcolm explain his apparent confusion between the difference between a clue and a honest to goodness legal requirement?

      The folks from the Bilski decision want to know (all nine of them, as that was one of the two things that all nine Justices agreed upon).

      1. Can Malcolm explain his apparent confusion between the difference between a clue and a honest to goodness legal requirement?

        I have explained your confusion on this issue to you many times.

        You don’t like my answer. That’s your problem. Just like it was your problem that you didn’t like me telling you that all claims in the form [oldstep]+[newthought] are ineligible.

        When you choose to repeatedlytell l i e s about what others have told, however, that raises another issue. The issue raised is that you are either mentally ill or you’re just a huge a x x hole or both. Take your pick, Billy.

        1. I have explained your confusion

          LOL – great – except I am not confused and thus I need no explanation.

          You, on the other hand, still are very much confused.

          So try again with the question, paying attention this time to explaining your confusion on the matter.

  35. DanH: The method in the ’415 patent claims an abstract idea because it describes a process of organizing information through mathematical correlations and is not tied to a specific structure or machine.

    Plus ça change?

    An analysis that resembles the machine-or-transformation test is never, ever going to disappear from a sane patent system. The reason why this is so is simple: concepts and processes that are disembodied from the physical world are quintessentially abstract and therefore ineligible for patenting.

    abstract: existing in thought or as an idea but not having a physical or concrete existence

    Note that “abstractions”, like “data structures” and “information” and “disembodied ideas” and “mathematical formulas”, are also not listed as examples of eligible subject matter under 101.

    1. An analysis that resembles the machine-or-transformation test is never, ever going to disappear from a sane patent system

      Great.

      No one as far as I know is saying otherwise (nice strawman).

      However, the Court itself has laid waste to the notion that MoT is anything other than a clue. See Bilski. See Prometheus.

      And any “analysis” that elevates a mere clue to being a legal requirement is – quite naturally – a clear mistake of law.

      I’ve asked before (but you never seem to want to give an answer): You do know the difference between a clue and a requirement, right?

      Now, if you want to rejoin reality and understand – as those in the art to which the inventions pertain – that software is NOT something totally in the mind (as witnesses by one aspect of software obtaining copyright requiring a fixing in tangible [read that as physical] media), and avoiding your strawman (Les excluded) notion of taking parts of a claim and treating a claim differently (moving the goalposts as is your typical dissembling machination) – and embracing that great word anthropomorphication – that is, machines (you know, real physical things) really do not think), you will end up far away from your typical short script.

      Let’s face it: software is a manufacture and machine component created for utility that – as a category – easily falls to being patent eligible.

      Keep in mind, that no one is saying that the rest of the law should not be applied.

      Clearly it should.

      Keep in mind, that even particular claims need to be analyzed for the (implicitly written) Supreme Court exceptions.

      Clearly particular claims still must be so reviewed.

      But just as clearly there is to be no CATEGORICAL exclusion of software – or software per se from patent eligibility.

      Only an insane person would hold otherwise.

    2. “processes that are disembodied from the physical world are quintessentially abstract and therefore ineligible for patenting.”

      Processes that are disembodied from the physical world are rare. The subject process is not disembodied from the physical world.

      “generating first data for describing a device dependent transformation of color information content of the image to a device independent color space through use of measured chromatic stimuli and device response characteristic functions;

      generating second data for describing a device dependent transformation of spatial information content of the image in said device independent color space through use of spatial stimuli and device response characteristic functions; and

      combining said first and second data into the device profile.”

      First of all, there are verbs conveying actions. Something physical must perform the action. It just isn’t specified, as what is being claimed is a PROCESS. Something physical must do the generating and something physical must do the combining.

      Additionally, there is data describing an aspect of an image. Clearly the image is physical. Furthermore, the data is physical. Else there is nothing generated. Still yet further there is a device else there is nothing to be independent of or dependent upon or to have response characteristics of. Still further, there is an instrument by which the chromatic stimuli are measured.

  36. Dennis comments: “That statement has the qualities of (1) being well known and old; (2) being totally divorced from any physical device or technology; and (3) focused on information transformation rather than the transformation of anything in the physical realm.”

    Yes, but, if you add some hardware to the claim, SCOTUS will throw it out anyway as the devious, conniving, devil-worshipping work of some danged draftsman.

    1. Shall we dance the circular dance of the definition of “technological” again?

      Or shall we attempt to find that word (explicitly) in the words of Congress dealing with patent eligible subject matter?

      Why is it exactly that it appears to be an eager (even zealous) desire to conflate patent eligibility and patentability with this notion of adding “technological” to the mix, as if such was a requirement for the topic under discussion?

      Is there some sub silentio thinking that patent law can be de facto changed if the word is added to every discussion? I chuckle at the fact that it is very much a scriviner’s trick that by so adding the term incessantly, the notion that the term must be present gains an implicit acceptance as a requirement. But I would also add that ANY critical exposition on the subject reject such implicit tricks.

      I would also point out the interesting intersection on the point of “ (3) focused on information transformation rather than the transformation of anything in the physical realm.” with the differences in treatment of printed matter that belongs to Set C as opposed to printed matter that belongs to Set B. The appreciation of patentable weight between the two sets ALREADY recognizes the functional relationship to something in the physical realm.

      More – not less – clarity and critical thinking is required when those wanting to kick up dust bring in their bags of dust and start to empty those bags onto the floor of the discussion.

        1. If you have a point to make Malcolm, please make it. Otherwise, your vap1d comments serve nothing but your evident self gratification alone.

          (you need more boxes of tissues to clean up after yourself)

    2. “Yes, but, if you add some hardware to the claim, SCOTUS will throw it out anyway as the devious, conniving, devil-worshipping work of some danged draftsman.”

      Proper.

      Unless of course the hardware you “add in”, is itself inventive. In which case you’ll probably be ok.

      1. Unless of course the hardware you “add in”, is itself inventive. In which case you’ll probably be ok.

        Or unless the addition of the abstract idea to the hardware or of the hardware to the abstract idea is itself inventive. In which case you’ll probably also be OK.

        1. “Or unless the addition of the abstract idea to the hardware or of the hardware to the abstract idea is itself inventive. In which case you’ll probably also be OK.”

          Idk about that. The claims at issue are unquestionably tied in some way to some physical thing, some hardware in fact. The addition of the abstract idea is unquestionably inventive. They weren’t ok. And in fact that fits pretty well within what is proper.

          1. The claims at issue are unquestionably tied in some way to some physical thing, some hardware in fact.

            That’s the most generous interpretation of the “tied to a machine” prong of the MoT test that I’ve ever seen from an examiner. I’m usually on the other side of this argument, but I don’t think information that merely describes a machine is “tied” to the machine. But if you say so.

            The addition of the abstract idea is unquestionably inventive.

            I don’t see it. The abstract idea here is to have a description of a certain properties of a device, where there’s a particular mathematical relationship between two parts of the description. There’s no addition of any hardware here at all – the abstract idea merely references hardware. Even though it references hardware, the claimed data structure is abstract because it isn’t a thing and doesn’t involve anything actually happening.

            1. Whatever you say brosef. I’ll simply counsel you to take a care when it comes to relying on the “inventive” additional of an abstract idea to hardware (where the hardware is not itself inventive). Have fun with trying to get those issued.

              1. “you are still parsing and not taking the claim as a whole 6.”

                Meh, you said that about what the supremes did. I’m happy to do exactly how they did.

              2. “LOL – that’s not a good thing.”

                Yep wouldn’t want a homeless person on the side of the interstate implementing tha lawl like the USSC bids. Instead I should walk the path that OCPD Billy has set forth, the “right” path. The “correct” path. The one True Way.

                Lulz. So OCPD and so funny.

              3. Oh noes! I’m “projecting” again! Oh noes! Someone get Little Billy’s therapist on the line so I can report my “projecting” and see what she thinks about it!

                So hilarious anon.

  37. “The Federal Circuit did not raise or discuss the presumption of validity afforded patents under 35 U.S.C. §282. In i4i, the Supreme Court ruled that invalidity for missing the §102(b) statutory-bar date must be proven with clear and convincing evidence. However, that defense is a question of fact. As discussed above, subject matter eligibility is a question of law and such questions are generally not controlled by the same evidentiary standards.”

    Does that mean there would be no deference to PTO (i.e., having to prove by clear and convincing evidence) for obviousness?

    1. Obviousness is a conclusion of law but that conclusion generally must be supported by a substantial number of factual conclusions. So, the idea would be that the factual underpinnings of invalidity would need to be proven with clear and convincing evidence. However, the ultimate conclusion of obviousness would not need to be “clear and convincing” but rather only sufficiently supported to overcome the presumption of validity.

      There is also a separate debate focused on the particular situation where the PTO makes a particular legal conclusion (such as on obviousness or claim construction) – in that situation should the agency legal conclusion be given deference?

      1. Yes.
        What possible appeal-sustainable [not ureasonable] “fact-findings” in a District Court below could overcome the breadth of the invalidated claims where the only defining or limiting words in the claims are abstract words like “profile” “space” and “data” and apparently the specification does not provide either dictionary definitions or a basis for re-writing the claims for litigation by reading much more specific limitations into these claims? I.e., no supporting intrinsic evidence.
        This is not to say that there may well be some room for supportable extrinsic fact evidence below in some other cases, especially the specific meaning of a non-abstract technical term in a claim to those skilled in the art at the application filing date.

      2. Regarding the “ultimate conclusion of law debate, an issue – at least in part – can be traced to the semantic treatment of “evidence.”

        While one definition of that term clearly implicates a view of being only fact-based, other definitions treat the term as having a larger – beyond-mere-fact meaning.

        To wit, (from Black’s Law Dictionary) compare and contrast definition 1) to both definitions 3) and 4):

        1) Something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact. [appears aligned with baseline facts]

        3) The collective mass of things, esp. testimony and exhibits, presented before a tribunal in a given dispute. [appears to widen beyond baseline facts and include more than just mere facts]

        4) The body of law regulating the burden of proof, admissibility, relevance, and weight and sufficiency of what should be admitted into the record of a legal proceeding. [appears to go well beyond just baseline facts, speaking to (critically) sufficiency].

        If the term “clear and convincing” is applied to evidence in the notion of 4), the conclusion of law – and its attending level of exactly what constitutes any bursting bubble of a presumption of law, then can becomes interesting.

        To me, the presumption of validity is plainly stated as a presumption.

        It is well recognized that presumptions burst, or can be made to burst. The (unstated) debate is what is necessary to effect that bursting (in gen aral perhaps, but in particular here in patent law with patent law’s attendant distinctions).

        But what does “presumption” itself mean? Here, we (again) look to Blacks:

        Presumption of law: a legal assumption that a court is required to make if certain facts are established and no contradictory evidence is produced.

        as well as

        bursting-bubble theory: the principle that a presumption disappears once the presumed facts have been contradicted by credible evidence.

        Here, it is not a presumption of facts in play, but a presumption of legal status – a nuance that should be noted and appreciated. Also, here, the level of credible evidence is dictated to be a high level indeed.

        Therefore – given the sum total of words and taking the law in its entirety, I believe that a valid argument can be made that the court is required to maintain the legal presumption of validity unless the level of contradictory evidence breaches the clear and convincing standard – as opposed to a direct read from the definition alone in the presumption of law of “no contradictory evidence.”

        In other words, the bubble to be burst is a very thick bubble and not a gossamer soap bubble.

        On the separate notion of the debate of deference to legal conclusions, I am unaware of any arguments that have been advanced to change the de novo standard that universally applies. Why again should that universal standard have an exception made in patent law?

        1. Buried under all the dust-kicking by the anti-patentists – this line of thought remains unexplored.

          I will point out to any who may be interested though, that the Judge Rich article that 6 and Ned were so nice to provide a link to does talk about how Congress aimed to strengthen the LEGAL aspects of patent validity with the presumption – a thought that does go beyond the mere factual treatment.

          Just in case, you know, anyone is interested in a real legal discussion….

  38. For the method claims then, the court turned to the abstract idea limitation recently discussed by the Supreme Court in Alice Corp. v. CLS Bank Int’l, 573 U.S. ___ (2014).

    Well, yes, they did. But then here’s what they said:

    The method in the ’415 patent claims an abstract idea because it describes a process of organizing information through mathematical correlations and is not tied to a specific structure or machine.

    Plus ça change?

    For what it’s worth, I think the Federal Circuit is on the right track. We don’t have a better “clue” than the machine-or-transformation test right now.

    1. As long as we keep in mind that a clue is but a clue and not a requirement, we can keep those with agendas in proper check. N’cest-ce pa?

      Remember:
      Bilski: MoT not required
      Prometheus: MoT not sufficient.

      While a clue may be a good clue in certain circumstances, the fact that the clue is neither required nor sufficient should stop misapplications of the clue and the tendency to treat the clue as something other than just a clue.

        1. Au contraire, we have the clue.

          It is only when you attempt to treat the clue as not a clue but something else, something more that you become clueless.

          And yes, it would be a fair description for those agendas that require MoT to be more than a clue that such are necessarily clueless. ;-)

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