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.

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

683 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?

  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.

              Comments are closed.