Federal Circuit: Bingo Gaming Software Improperly Encompasses the “Basic Tools of Scientific and Technological Work”

by Dennis Crouch

Planet Bingo v. VKGS (Fed. Cir. 2014)

In a non-precedential decision earlier this week, the Federal Circuit found Planet Bingo’s patents invalid as lacking eligible subject matter under 35 U.S.C. 101.  The court’s opinion self-identifies as a “straightforward application of the Supreme Court’s recent holding in Alice Corp. v. CLS Bank International.”

The patent claims a computerized method for managing a game of Bingo – yes, the multi-billion dollar industry of Bingo. The basic idea of the invention is that some folks want to play ‘their numbers’ each week.  The computerized system lets individuals pre-select their numbers and also helps the Bingo-hall to track sales, verify winners, and avoid tampering.  VKGS and Planet Bingo compete in the marketplace for bingo equipment.

Claim 1 of U.S. Patent No. 6,398,646 recites typical computer hardware including a computer with a CPU, memory device, a printer, input and output terminal, and also a computer program with particular features.  As is typical with software related inventions, the only novel features of the invention stem from software-related functionality. Here, the program is configured to allow input and storage of the pre-selected Bingo numbers in files associated with the players. A player with stored numbers can then retrieve them to play Bingo. At that point, a control number is also associated with the numbers that can later be used to verify winnings.  The patents also include method claims that basically step through the program steps outlined above.

Although I am no Bingo expert, nothing here appears amazingly inventive. Of course, the challenge to the patent is not on grounds of obviousness or anticipation. Rather, the challenge is on subject matter eligiblity grounds – that the patent unduly encompasses an “abstract idea” and therefore unduly limits “the basic tools of scientific and technological work.”

The Patent Act is broadly written so as to allow the patenting of “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. 101.  In addition to the text of the statute, the Supreme Court has further restricted the patenting of “laws of nature, natural phenomena, and abstract ideas.”  According to the court, these exceptions to patentability are necessary to protect “the basic tools of scientific and technological work.”  In Alice Corp, the Supreme Court explained:

“[M]onopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it,” thereby thwarting the primary object of the patent laws. Mayo. We have “repeatedly emphasized this . . . concern that patent law not inhibit further discovery by improperly tying up the future use of ” these building blocks of human ingenuity. Mayo (citing Morse).

Here, the Federal Court found that – yes – those building blocks of scientific inquiry are being inhibited by Planet Bingo’s bingo software patent.  To reach this result, the court began by recognizing that the method and system claims are basically the same and thus should rise-and-fall with the same analysis.  The court then analyzed the case through the lens of the method claims as ineligiblity tends to be easier to show for method claims.

Following the process outlined in Alice Corp., the Federal Circuit first identified the abstract idea as the steps of selecting, storing, and retrieving the bingo numbers, assigning the control number, and checking to see whether the set of numbers is a winner. These steps are collectively an abstract because they are “mental steps which can be carried out by a human using pen and paper.”  Particularly, none of these steps require new technology but rather may be “carried out in existing computers long in use.” (quoting Benson).  Further, the Federal Circuit was unable to find an “inventive concept” in the rest of the claimed subject matter sufficient to transform these abstract ideas into a patent eligible invention. The court writes:

Apart from managing a game of bingo, the claims at issue also require “a computer with a central processing unit,” “a memory,” “an input and output terminal,” “a printer,” in some cases “a video screen,” and “a program
. . . enabling” the steps of managing a game of bingo. These elements, in turn, select, store, and retrieve two sets of numbers, assign a player identifier and a control number, and then
compare a winning set of bingo numbers with a selected set of bingo numbers.

Here, however, the claims recite merely a generic computer and instructions that simply implement the abstract idea discussed above.

Patent Invalid.

596 thoughts on “Federal Circuit: Bingo Gaming Software Improperly Encompasses the “Basic Tools of Scientific and Technological Work”

  1. A Rich-era patent on poker per se. Can you believe it? Really? REALLY? Poker is a useful art? Does it improve a machine, a manufacture, or composition? Clearly not.

    Next we will find methods of playing bingo per se are within the useful arts. Why not training cats, or swinging on inner-tube swing? What about accurately counting the number of sheep that jump over that hedge in one’s dreams?

    It is quite apparent that the PTO and the Federal Circuit were way out of control during the Rich era. Not only were they disinterested in 101 as a topic, they actively opposed any attempts others such as district courts to limit patentable subject matter. Thus, we get this, which was litigated without a 101 challenge by anyone.

    Who was in charge in the PTO during this timeframe. They should raise their hands and explain, to the best of their ability, why they allowed such claims to issue.

    5823873:

    1. A method of playing a card game comprising:
    a) dealing a first hand of at least five cards all face up;
    b) selecting none, one or more of the face up cards from the first hand as cards to be held;
    c) duplicating the cards selected to be held from the first hand into a second hand;
    d) duplicating the cards selected to be held from the first hand into a third hand;
    e) discarding from the first hand the face up cards that were not selected to be held and replacing each of those cards with a face up card;
    f) completing the second hand to have at least five cards by dealing additional face up cards;
    g) completing the third hand to have at least five cards by dealing additional face up cards;
    h) determining the poker hand ranking of the resulting cards of the first hand, the second hand and the third hand.

    1. There be cards there Ned – plus you have failed to account for the non-Rich era 1924 patent I posted.

      Your fake umbrage is showing.

          1. Ned the date 1924 is that date of the case you want to lean on are not determinative of the issue I am asking you to address – there is a constant stream of such patents well before the Rich era solidly back to at least the 1924 patent (both before and after the case you wish to lean on).

            Please address the points I present as indicative of all pre-Rich cases.

        1. Second Request:

          Tell me Ned what is the substantive difference between the manufacture of a board doing nothing more than bearing indicia, and a media that also bears indicia (as would the manufacture of software – since we both know that with software – fixed in a tangible media so as to earn copyright protection can be taken as a given for our discussion)?

          Then look at this 1924 patent and let me know what is

          a) the technological aspect

          and

          b) how the aim of this patent is anything but what we in our current age would call “abstract.”

          link to pdfpiw.uspto.gov

    2. Ned, I take it you would argue that a new method of playing bingo or poker is not a “useful process” – the 101 category you inadvertently omitted when you listed “machine, manufacture, or composition.”

      Section 101 says “any new and useful process” is eligible for a patent, but clearly you have other ideas. In your view, what is an example of a process that falls within the bounds of 101-eligibility? Do all such processes need to result in a novel and useful machine, manufacture, or composition?

      In other words, can a process that is an end in and of itself (like playing bingo) be patent-eligible, or are patent-eligible processes always merely the means to an external end?

      I would note that the court in Planet Bingo held that the particular claim language “consists solely of mental steps which can be carried out by a human using pen and paper” and was therefore ineligible. Is that the litmus test? If so, do you believe the same holds for the card game in the ‘873 claim you quoted, or for the slot machine method in the ‘658 patent I cited in post 30?

      1. SlotGuy,

        Section 101 says “any new and useful process” is eligible for a patent, but clearly you have other ideas. In your view, what is an example of a process that falls within the bounds of 101-eligibility? Do all such processes need to result in a novel and useful machine, manufacture, or composition?

        From In re Bilski discussing In re Comiskey: “Some may suggest that Comiskey implicitly applied a new § 101 test that bars any claim reciting a mental process that lacks significant “physical steps.” We did not so hold, nor did we announce any new test at all in Comiskey. Rather, we simply recognized that the Supreme Court has held that mental processes, like fundamental principles, are excluded by § 101 because “`[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts … are the basic tools of scientific and technological work.'” Comiskey, 499 F.3d at 1377 (quoting Benson, 409 U.S. at 67, 93 S.Ct. 253) (emphasis added). And we actually applied the machine-or-transformation test to determine whether various claims at issue were 961*961 drawn to patent-eligible subject matter.[24] Id. at 1379 (“Comiskey has conceded that these claims do not require a machine, and these claims evidently do not describe a process of manufacture or a process for the alteration of a composition of matter.”). Because those claims failed the machine-or-transformation test, we held that they were drawn solely to a fundamental principle, the mental process of arbitrating a dispute, and were thus not patent-eligible under § 101. Id.”

        While the Supreme Court has said that the MOT is not the exclusive test for processes, certainly without anything else in the claim other than mental processes which are new, everything else that is otherwise eligible being old, all such claims to methods of playing poker or other games cannot be patentable under the Supreme Court cases.

        The PTO has issued hundreds of “method of playing a wagering game” patents since then. Are you suggesting that they shouldn’t have, and moreover that every single one is invalid as ineligible subject matter? If so, how do you reconcile that position with the behavior of the government over that time period?

        The PTO also issued thousands upon thousands of DNA patents on its own authority without ever having the issue tested in court. How is this serving the public by not raising issues of first impression to be resolved by the courts?

        They also did the same thing with regard Beauregard claims – never allowing the courts to actually deal with such claims directly but simply on their own authority allowing them.

        In my opinion, the PTO must bring novel issues of first impression to the attention of the courts so that the courts may resolve those issues. More often than not, the PTO by willfully issuing patents of doubtful validity does not serve the public, and the commissioners and everyone else involved in the decision-making in such cases should be fired. Their names should be identified that they should not be involved in patent law either in public service or in private practice.

        But of course we all know that if we identify their names, it was soon be hired by major firms and big companies as heroes, just as Judge Rich continues to be honored by major patent law associations as if he enhanced the reputation of the patent system with decisions like State Street Bank.

        1. Ned – you moved the goalposts from SlotGuy’s question about the place of the statutory category of process (not as a mere handmaiden or sub-category to the hard goods categories, but as a distinct and equal category in its own right) to a discussion purely of mental processes (or your non-Diehr, parse and dissect and focus only on mental processes, not looking at the claim as a whole).

          Can you not play these intellectually dishonest games with the new posters?

        2. Ned, it would seem that patent eligibility of processes is a hot-button issue for you, so much so that it clouds your vision and apparently prevents you from even reading the actual question.

          I asked whether the particular claims you cited (Moody, ‘873) are patentable over the “mental process” exception to 101 you quoted from Bilski/Comiskey.

          Did you actually read the claims you cut and pasted? Or are you assuming that because the first seven words of the claim are “A method of playing a card game” that the entirety of the claim is necessarily ineligible?

          Can a human mentally “deal” a card, or mentally “duplicate” a card from one hand into another, as those terms are used by the patentee in the specification?

          Or, getting back to the 8,814,658 patent, can a human mentally “display a play of a game” on a gaming machine with a display and processor?

          1. Slotguy, you must know that card games are old and that everything in the claims to various card games in the various patents is old but the new way of playing. It has been the historical practice of many on the Federal Circuit to focus in on the fact that the claimed subject matter includes eligible subject matter, albeit old and conventional. That was the mistake of the Federal Circuit in Prometheus and it was corrected by the Supreme Court – unanimously. The Supreme Court has now declared that the mode of analysis of Prometheus covers all 101 subject matter – and what is that? Well, a claim that includes old and conventional eligible subject matter and novel and unobvious but otherwise ineligible subject matter is unpatentable pursuant to Prometheus/Alice.

            That you asked whether the claim is saved because it recites cards, or conventional methods of dealing, etc., illustrates to me that you seem to lack an understanding of the fundamentals.

  2. Companies like IGT, Bally, and WMS Gaming have thousands of patents on slot machines. Many of them are related solely to operating functionality because modern slot machines are basically computers with touchscreens, some specialized UI buttons and cash-handling ability, and gaming companies use the same hardware to deliver hundreds of different games. For example, US 8,814,658 issued earlier this week, after Alice and the latest PTO guidelines. It covers what’s known in the industry as a “game mechanic”, that is, a novel behavior for a slot machine. It does not cover novel slot machine hardware.

    Based on the Planet Bingo decision (and Alice, Bilski, etc.), should the claims of ‘658 be eligible for patent protection under 101? Why or why not?

    1. Firmware that modifies the operation of the machine clearly is eligible subject matter because an improved machine is statutory.

      Software in contrast simply uses a gen eric computer and the object of the software is not an improved machine but something nonstatutory.

      1. the “object” is immaterial to the discussion, as the “object” can be EXACTLY the same for software, for firmware and for hardware.

        Ned – you continue to chose to ignore this FACT. The fact is not going to go away because you clench tight your eyes.

      2. Some slot machines use EEPROMs to store the operating instructions for the game mechanics, others use encrypted read-only hard drives. Are you suggesting that one slot machine would be statutory and the other not based on the medium in which the game instructions are stored?

          1. From a theoretical standpoint, that’s absolutely true, and I’m speaking as a trained computer scientist. But the question isn’t about science, the question is about IP policy. Here are two very specific examples:
            a) The IGT Game King gaming platform uses “personality chips” that store game instructions in firmware.
            link to toplineslotmachines.com
            b) The Quixant QXi-307 gaming platform uses battery-backed NVRAM that stores game instructions in software.
            link to quixant.com

            Both slot machine platforms (or their equivalents) are in current use on casino floors. The language of the ‘658 patent I cited doesn’t make a distinction; the methods and systems disclosed could easily be implemented on either platform. Does that make the ‘658 patent 101-eligible, 101-ineligible, or does patent eligibility depend on which of the above two platforms a game vendor chooses to use?

            1. Sorry SlotGuy – you are asking a question that Ned will refuse to answer because of his third party interests.

              Of course, the answer is, well, obvious – and is an established fact (even if the anti’s try to clench tight their eyes to it).

              1. Bear with me, I’m not an IP attorney and the answer isn’t obvious to me (hence the original question). Are patents on casino slot machine game play mechanics, if claimed as in the ‘658 Patent, statutory or not?

                And second question: should they be? IGT’s market leadership in the gaming industry is partly based on a few key patents, including Telnaes (US 4,448,419, slot machines using random-number generators) and Moody (US 5,823,873, Triple Play video poker). Both of those patents have survived multiple litigations. Would they today? Should they?

                1. You are not doing too badly for not being an IP attorney – and my comment was less directed to you than to the regular Ned Heller with whom you are attempting to obtain a straight answer from.

                  If you google the name, you will see just whom are Ned’s third party interests and that will inform you as to why you will not receive a straight forward, intellectually honest answer from Ned.

                2. Good question. My answer pre – scotus – would be yes – patentable subject matter. In fact you can even patent a novel and non-obvious board game. So certainly a novel and non-obvious slot game is patentable. There is no difference whether the game instructions are stored in EEPROM or downloadable flash or even RAM. Those who state otherwise – are obviously ignorant of the art. Now, post- alice – I can’t say for sure. Depends on the judge, i guess. Unquestionably, subject matter will be raised as a new defense to the patent. The analysis – is results oriented.

                3. iwasthere,

                  “Board game is patentable.’

                  Cite?

                  Frankly, I wouldn’t trust any opinion on patentable subject matter from the CCPA or the Federal Circuit in the Rich era.

                4. The board games all seem to include novel apparatus — that is, until Alappat. Thereafter, all bets are off and what the PTO did or did not do cannot be relied upon.

                5. LOL – your “version” of Alappat has been wrong forever and a day.

                  That you look at the instant situation and take the RQ / HD path of declaring “all bets are off” says more about you than you realize.

                6. Tell me Ned what is the substantive difference between the manufacture of a board doing nothing more than bearing indicia, and a media that also bears indicia (as would the manufacture of software – since we both know that with software – fixed in a tangible media so as to earn copyright protection can be taken as a given for our discussion)?

                  Then look at this 1924 patent and let me know what is a) the technological aspect and b) how the aim of this patent is anything but what we in our current age would call “abstract.”

                  link to pdfpiw.uspto.gov

            2. If both of these “innovations” are functionally claimed at the point of novelty, SlotGuy, they are both “equivalently” j nky. It doesn’t matter if you call it “hardware” or “software.”

              1. I’m not calling it either hardware or software – it’s a slot game method. But the PTO has been issuing patents on game methods for decades. Here’s a famous example: US 5,823,873, covering what is known as “Triple Play video poker”. There is no dispute from anyone in the industry that Triple Play was a brilliant idea. It has generated billions in revenues and is widely regarded as one of the most successful casino games ever. Read pp. 4-8 of this (or the whole thing, if you’re curious):
                link to appellate.net

                To my knowledge, not once in the numerous litigations involving the Triple Play patents has a 101 challenge been raised. Yet I presume from your replies in this thread and elsewhere that you think such functional behavior of existing machines is not patent-worthy as a matter of philosophy.

                Setting aside your personal policy beliefs for the moment, how do you reconcile PlanetBingo, Alice, and other recent decisions with the decades of PTO precedent and long-held expectations that an improvement in the functioning of a machine is patentable, even if the machine itself is not changed?

                1. SlotGuy – a minor correction: the machine MUST be changed for it to have a new capability.

                  In patent law this is known as the inherency doctrine. One cannot claim a new invention in something that inherently already has the capability (and it is critically important to distinguish the and keep track of the verb tense) because if the item already has the capability, then you have not actually invented anything.

                  The running commentary here portrays this concept under the term “oldbox.”

                  Notwithstanding that minor correction, the question you appear to ask of Malcolm (MM) has been asked of him nigh countless times previously – and is a simple question that he refuses to address in an intellectually honest manner.

                  I truly doubt that he will answer you in any meaningful way.

                  (I will also point out that even for argument’s sake if you are strictly using something in a new way, one CAN obtain method patent coverage for that new way – this was EXPLICITLY made clear by Congress in 1952 – again acting to smack down an overly activist and anti-patent Court). Not so surprising, many activists here try to kick dust over this legal point.

                2. anon (there’s no reply link under your last post, so I’m putting this here):

                  Okay, I think I get the inherency part — you can’t patent using a chef’s knife as a shim for woodworking because it already could have been used that way.

                  But where does patent law draw the line at the changes that are allowed while still falling under the inherency doctrine, when you’re dealing with a flexible-by-design set of building materials?

                  I know I can get a patent if I build a novel/non-obvious machine out of sheet metal. But if I build a novel/non-obvious machine with an Erector Set, is that inherent and therefore ineligible? Or is it patent-eligible because I put the parts together in a different way from anyone else before?

                3. You have a different way of putting it together?

                  You can get a patent on that method.

                  (this applies to any product of nature as well)

                  The point to absorb is the fact that software is equivalent to firmware and is equivalent to hardware and that you are creating an actual new machine if you change the inherent capabilities of the machine with the addition to “oldbox” of software.

                  Do not be confused by the dust-kicking here and the purposeful confusion of the term “using a computer.” ANY TIME you are using things that are such building blocks and your use creates something that has a capability that was not there previously, your “use” is an invention that can easily be seen as falling into the realm of patent protection (of course, another important aspect of 35 USC 101 beyond just the statutory category aspect is the utility aspect).

                  Any reasonable patent attorney without an anti-software patent agenda can tell you this and explain this to you in more detail (than an exchange on a blog – as you should know that our conversation does not constitute legal advice and I am not your lawyer**). You may also want to look up and read the recent Nazomi case as well as the historic In re Alappat case.

                  **not to be confused as a lack of advocacy, as I am most definitely advocating legal points and acting with full compliance of my ethical duties while so advocating.

                4. SlotGuy, justt a bit of a misrepresentation by you. The claims attached to the brief you link consist of three claims from two patents – all of which simply claim a method of playing poker unrelated to any hardware or software. As such, I fail to see how these claims claim patentable subject matter at all.

                5. Ned, I didn’t intend to misrepresent anything. The Moody patents are very clearly “method” patents — they say so. But your reply indicates that you think “a method of playing poker” is, by itself, not patentable. Is that right?

                  Then what should be done with all the patents issued by the PTO over the past 20 years with precisely that scope? The well-known casino game Caribbean Stud is claimed in US 4,836,553, entitled “Poker game” and that issued in 1989. If you’ve been in a casino in the past 20 years, you’ve probably walked past a Caribbean Stud table even if you haven’t actually played the game.

                  The PTO has issued hundreds of “method of playing a wagering game” patents since then. Are you suggesting that they shouldn’t have, and moreover that every single one is invalid as ineligible subject matter? If so, how do you reconcile that position with the behavior of the government over that time period?

        1. The issue is whether the claims define a new machine, or whether they just call for the use of a gen eric computer to execute new software.

          No matter how the Computer program is stored, if it is loaded and executed automatically by the computer, it is part of the machine.

          Bios loaded OS’s certainly would qualify.

          1. Ned – your fallacy has been exposed – one cannot “use” software on a machine until that machine has been changed with the loading of the software on the machine.

            Time for you to be intellectually honest here.

          2. Query to Ned: some slot machines offer one game only, others offer multiple games and a game-selection menu. Does your post imply that a single-game slot machine running Game X is eligible, but a multi-game slot machine loaded with many games including Game X is not eligible, because Game X is loaded automatically in the former case but loaded at the prompting of the user in the latter case?

            1. If the program is integrated with a machine to change its mode of operation, it is a particular machine.

              On the other hand, software is not directed to a particular machine, and essentially preempts.

              See Curious’s rebuttal.

              But I think I am right on this.

                1. What part of a machine component being a manufacture in its own right confuses you?

                  What part of growing up and not pretending that you’re in kindergarten confuses you, Billy?

                  Your silly “theory” that anything you can describe as a “manufacture” necessarily passes the eligiblity theory has been put in a coffin by the Supreme Court and buried under 10,000 tons of gravel.

                  If you want to sit around and stamp your feet and cry like a baby about it for the next fifteen years, why not do that at your hero’s lame-axx echo chamber instead of over here? The smell of full diapers is plainly welcomed over there. Plus you can shine Jenny’s buttons while he shoves steak in his face. It’s a match made in heaven.

                  Give it some serious thought, Billy.

                2. That’s not an answer Malcolm.

                  Please do not tell me that you think such CRP is an answer.

                  And you should also try to grasp the fact that I have always held that statutory category is not the sum total of the 101 requirement.

                  You seem to clench tight your eyes when it comes to what I actually tell you.

              1. I think you’re focusing too much on the software issue – software is just one form of issuing instructions to a computer. This isn’t about trying to patent disembodied software algorithms, it’s about trying to patent new behavior of a gaming machine. Isn’t new behavior of an old machine patentable?

                1. That’s exactly the question that we’re all struggling with.

                  101 used to be about eligible subject matter. 102/103 were a separate inquiry about the improvement over the prior art.

                  Now, we disregard the language of a claim, compare the “abstract idea” in a claim (I.e., the essence of the idea) to the prior art, and then determine whether there is “enough” there to warrant patentable subject matter under 101.

                  Since we don’t know what “abstract” means, we don’t know what to disregard of the claim and what to keep, and we don’t know what “enough” is, we’re all just guessing as to whether 101 is met or not. No one can tell you except the Supreme Court.

                2. Bad joke, certainly abstract must include “mental processes” as occurs with mathematics, business methods, are methods of playing games. Under the analysis of Prometheus and Alice (as well as of Hotel Security and its progeny), if the novel subject matter and the claim is ineligible, and the eligible part of the claim is old and conventional, the claim as a whole is not patentable.

                  This is actually quite simple.

                3. You are (still) quite wrong Ned.

                  Playing games… appears to be your speciality – i gave you a pre-Rich patent and expect you to drop the charade and address the point provided to you.

                  I can grab a 1930 game-playing patent, a 1940 game-playing patent, or a 1950 game-playing patent and the points I present to you are identical.

                  Answer the points and stop running away.

          3. Claim 1 to board path and indicia.

            Compare, computer with ALU, fetch and execute hardware, and a program memory containing instructions that are fetched for execution.

            Same thing.

            Next, vary the indicia. One indicia leads to rock star fame. Another to sainthood. The only thing new is abstract.

            Do you see yet?

      3. You realize of course, that we STANDARDIZED gaming hardware decades ago, right? It’s GENERIC so that programmers can focus on code instead of dealing with ASIC manufacturing issues.

        Your comment flies in the face of reality.

  3. Patent leather: “…because the nonstatutory subject matter must be given no weight.”
    Ned, of course that is the strict test from Flook which was cabined in Diehr. If it was resurrected in a later Supreme Court case, please cite me the passage. If that is really the test in Alice, then there would be no need for prong 1 of the Alice test, would there? Just skip to prong 2 to see what is non-conventional hardware.

    I don’t think Flook can be simply interpreted to give no weight to nonstatutory subject matter. It actually said that the nonstatutory subject matter was to be considered as part of the prior art, which is something entirely different. Nonstatutory is section 101. Prior art is section 102. I thought I made this clear before.

    Also, regarding the cabining of Flook, Diehr made the point that when the nonstatutory subject matter is integrated in an otherwise statutory process so as to transform that process into a new state or thing (the MOT), that the claim as a whole was patentable. I think the Supreme Court is consistently following Diehr to this extent.

    Thus when the programmed computer is part of a larger machine or process and operates to improve that larger machine or process it does not make any difference whatsoever that the only thing new in the claim is the computer program. In contrast, when the only thing new in the claim is a nonstatutory algorithm or method, and that method is not integrated into an otherwise statutory process or machine so as to transform it into a new state or thing, the claimed as a whole is unpatentable because otherwise the patent laws could be easily evaded by sprinkling a claim to nonstatutory subject matter with conventional, but otherwise statutory elements. That is why Prometheus determined that the presence in the claim of the conventional blood testing process did not lend any patentable weight to the claim with a novel subject matter was the law of nature.

    1. Sorry Ned – but wrong again – there is no dependence on MoT in Diehr.

      Yet another example of your far too willingness to ignore Supreme Court words that just so happen to NOT fit into your mantra.

    2. that the only thing new in the claim is the computer program

      LOL – you are edging closer to that PON Diehr killer point (and yes, I am loving it).

  4. Amazing to see people downthread pretending to be surprised or, worse, pretending that this is somehow the “wrong” result or “doesn’t make sense.”

    It’s the right result and it’s perfectly predictable and sensible and there is much more to come. Eventually the computer-implementers will grow up and understand that the patent system wasn’t intended to protect information-processing claims that are nothing more than elementary functions tacked onto an old programmable computer that was created (long ago) for the sole purpose of carrying out those functions.

    Of course, Dennis can’t help but throw some gas on the campfire with this kind of cheekiness:

    the Federal Court found that – yes – those building blocks of scientific inquiry are being inhibited by Planet Bingo’s bingo software patent.

    The “building blocks”, of course, would be the contributions to progress in the useful art of computing machines which are made by describing the distinct, objective structural improvements made to those machines. No such description appears in the claims at issue here. Not even close. There was not even an attempt here to make such a contribution. And yet somehow a tiny segment of the public believes that we must reward them with a patent because they told everyone that a computer can be “configured to” (try to believe it) remember and store information. Yes, even information about some silly game that we learned to play when we were five.

    I’ve got news for the confused hand-wringers: computer can receive, store process, and transmit any kind of information that they are configured to receive, store process, and transmit. Not just Bingo information, but bank account information, available real estate information, Johnny’s credit card information, medical diagnosis information, rocket science information, settlement agreement information, weather information, traffic information… the list goes on (let me know if you need more examples).

    I’ve been telling you this for years because it’s an important fact that for mysterious reasons is mostly ignored during Examination and during litigation of computer-implemented j nk. And it’s a very damaging fact for a great deal of the computer-implemented j nk that’s out there.

    More to come! The swamp is just beginning to be dredged.

    1. can’t help but throw some gas on the campfire

      As 6 would say, “lulz”

      And if Malcolm’s post looks like a retread in the “look at me look at me” style, just meander down to post 6.

    2. Here is my hypothetical for you.

      Claim 1: A vehicle comprising: a frame; a plurality of wheels each rotatably connected to the frame; and a seat supported by the frame.

      Is this claim patent-eligible under Alice? Let’s take a look:

      (1) Claim 1 is directed to the abstract idea of moving something from Point A to Point B.

      (2) The claim doesn’t include “something more” “inventive” enough to save it, just old concepts that operate as they always have.

      This is the problem with Alice. It can be interpreted to slam the door to all claims – not just computer-implemented claims – not directed to novel and non-obvious subject matter.

      1. Sure, the rule from Alice is broader than it needs to be. But its a bit unclear how this overlap is problematic. Namely, what’s wrong with a claim being invalid as both ineligible under 101 and obvious under 103? The breadth of Alice is only a real “problem” when it is used to invalidate claims that are otherwise patentable.

        I should note that I have previously recognized the overlap as a practical problem because of the ambiguity and philosophical policy driven approach in eligibility analysis.

        1. A bit unclear…?

          You answered your own supposition: “I should note that I have previously recognized the overlap as a practical problem because of the ambiguity and philosophical policy driven approach in eligibility analysis.

          Pretending that “philosophies” and politics are not at play is like pretending that the patent system is not under attack from the Left and from the Right: instant loss of credibility.

        2. Because there are particular rules for novelty and nonobvious analyses. Unless these are incorporated into the 101 analysis, I see it as a huge issue.

          1. If we take the Planet Bingo case in particular, I don’t think that there is any good evidence that the claimed invention was obvious. And truthfully, I don’t think that the court here used 101 as a substitute for 103. Rather, they saw this claim as too broadly restricting the use of the should-be-free building-blocks of technology.

            1. Wait, so we have a novel, non-obvious improvement to facilitating the play of Bingo, and that somehow unduly preempts . . . playing Bingo?

              If the improvement is novel and non-obvious over Bingo, Bingo by definition is not preempted by the improvement.

              1. Yeah, the fine professor directly contradicted himself. I guess that’s what you get when trying to make sense of the new non-rule rule for patentable subject matter.

            2. By what standard and by whose decision/opinion defines what falls under the category of the “should-be-free building-blocks of technology” ? What policy consideration justifies the destruction of rights?

              To play devil’s advocate:
              If the patent right (the potential property) is otherwise valid but for “policy” reasons someone decides it should be “vested” in the “public”, wouldn’t it be better if the patent/invention remained valid, and the government afterward simply (mis)appropriate the inventors rights and grant them to the public?

              After all, eminent domain has been used to steal private property, ruin lives, etc. before, why not let the government do that with patents as well? After all, the government of the USSA would get more Red points raiding and redistributing private property rather than denying its existence in the first place.

              1. OK I suppose I should have expected that from you… although I have enjoyed our more “polite” exchanges.

                Misappropriation/eminent domain aside…

                Upon what principles should the definition of “should-be-free building-blocks of technology” be based and how do we shield that from caprice and the arbitrary whims of both the privileged few or the mob at large (demos)?

              2. As opposed to trusting Malcolm who is (in)famous for stating that intellectual honesty is not required here on a mere blog because this is not a courtroom (nevermind the FACT that he is wrong as to what is required ethically of lawyers in their advocacy even outside of a courtroom).

              3. LOL – Anon2, dont’cha know that the mobs at large are one of Malcolm’s favorite ploys? (just visit slashdot or techdirt for the “legal insights” of the mobs at large that Malcolm rallies behind.

              4. anon2 Upon what principles should the definition of “should-be-free building-blocks of technology” be based

                The same principles that have been applied to the grown ups in patent law since pretty much forever: you want to claim a new machine or composition, you describe that machine or composition in objective structural terms that distinguishes the machine or composition from the prior art machines and compositions.

                Or you could let us know what you think is a reasonable alternative to those long-established principles and why. Try to do so without invoking scary communists or dying children or Amish people and then most of us will be more likely to take you seriously instead of assuming you’re just another entitled l o s e r worried about his own wallet and nothing else.

              5. in objective structural terms

                Cite please- oh wait – that’s been asked for already.

                Let’s see what that answer was: ” ”

                Wow – that looks exactly like the sum total of Malcolm’s positive contributions to legal issues here.

              6. MM

                1. Your grace and class shine through in your last sentence. Thank you for reminding me, with your words, what you are.

                2. I have no wish for “most of” anyone to “take” me “seriously”. If you think this motivates my conduct or should motivate any mature independent individual’s conduct, you grossly underestimate what it is to be a human being.

                3. You have completely ignored/skirted the question. Craftily, you equate the concept “patentable” with the inverse of “should-be-free” as if there were an overriding “should-be-free” principle already in patent law. You imply therefor Patent rights are only patent privileges, and that they always were subject to arbitrary caprice and sentiment. As far as I know the “should-be-free” exception to an otherwise patentable invention, in the interests of the “public welfare” is not a part of patent law but would be an injection of social policy overriding patent rights.

                If you are saying that ONLY that which is unpatentable, according to existing objective long standing principles of patent rights, falls within the category of “should-be-free” then I would in fact agree with you.

                I suspect, on the contrary, that your “wish” of the “should-be-free”, would erode what always was and ought to be patentable, all in the name of the “public good” (since apparently inventors are not part of the public and their RIGHTS do not qualify as “the good”).

                “Oh please, please, MM take me seriously.”

                1. “with the inverse of “should-be-free” as if there were an overriding “should-be-free” principle already in patent law.”

                  They’re known as the judicial exceptions.

                  Also, yes, he should have said “patent eligible” not patentable.

              7. Anon2, I personally think the supreme Court is off-base with its “building blocks and “analogies. The serious question about “abstract” is whether the subject matter statutory. If It is not directed to a machine, composition, or manufacture, new or improved or traditional process which is new and improved, the subject matter is non-statutory.

            3. “Rather, they saw this claim as too broadly restricting the use of the should-be-free building-blocks of technology.”

              “Too Broadly” is judged under 102 and 103 and you just said, ” I don’t think that there is any good evidence that the claimed invention was obvious. “

        3. “The breadth of Alice is only a real “problem” when it is used to invalidate claims that are otherwise patentable. ”

          The problem is that Alice can and will be used to invalidate claims that are otherwise patentable.

          1. The “Gist/Abstract” sword has been unsheathed. There have been NO limits to its use provided by the Royal Nine.

            They even refuse to define what “abstract” means.

      2. M.K. –
        I see a couple of problems with that analysis. Claim 1 is directed to a vehicle, which is a concrete object by anyone’s definition, I would expect.

        The other issue I have with it (not that I expect you to have much concern over my layperson issues, but I’ll share anyway) is that even if the claim was directed to “moving something from Point A to Point B”, that still isn’t an “abstract idea”. Moving an object between two points can be witnessed, recorded, and measured. This is a “real-world” occurrence, not something that exists only in the mind, so it is not at all abstract.

        Cheers,
        Dobu

        1. Dobu – you have not been following along. Concrete objects can be considered merely scriviner attempts to capture the abstract.

          See Alice (and note the stipulated facts from both parties – thus something not amenable to Court change – that some of the claim fully met the machine category of 35 USC 101).

          Your view of “abstract,” while perhaps reasonable (especially to a lay person) does not – cannot accord with how the Court used that term in the legal sense.

          This is one of the reasons why those of us in the legal community who understand the full gist of the decision are up in arms about it.

          1. hose of us in the legal community who understand the full gist of the decision

            What a lovefest you brilliant attorneys must be having discussing “the full gist” amongst yourselves. Is Big Jenny included in your circle jerk, Billy?

      3. Claim 1: A vehicle comprising: a frame; a plurality of wheels each rotatably connected to the frame; and a seat supported by the frame.

        Is this claim patent-eligible under Alice? Let’s take a look:

        (1) Claim 1 is directed to the abstract idea of moving something from Point A to Point B.

        There’s nothing “abstract” about moving a physical object.

        The tactic of making ridiculous arguments that most attorneys would be ashamed to make and then stating that “everything is inelgible” as a result of that ridiculous argument has been observed before.

        Grow up.

        1. Claim 1: A system including a processor configured to operate an arm to move a vehicle from point A to point B.

          I guess this satisfies 101, right? Because there is nothing “abstract” about moving a physical object.

      4. mmmkay, you do point out why I have particularly have criticized both Bilski and Alice — the real problem in these cases is that the claimed subject matter is nonstatutory, and as such, must be applied or there must be invention in the statutory parts. The court has not been clear on this.

        But beyond the form of the cases there is a persistent pattern in that abstract is a term of art being used for nonstatutory; and Prometheus and Alice have both adopted the Hotel Security approach that when the nonstatutory and statutory mixed in the same claim that there must be invention in the statutory aspects of the claim.

        1. the real problem

          Never mind what has actually been written, in Ned-IMHO-Law land, Ned will simply rewrite what the Court has written in order to fit into his jihads.

          Wake up Ned, nappy time is over.

    3. All useful structurally defined inventions carry information content. (it is only the information content that makes anything useful – by definition).

      Now, with this in mind, revisit the good professor’s subtle jab at you at post 6.1

    4. MM, as always, a good post.

      May I suggest something to you? Last week or so I proposed a deal with anon where he would stop saying that I was wrong about something without any explanation and argument, and in exchange, I would endeavor to answer his posts and argument when presented. He soon broke the deal. Since then I have largely stopped reading his posts, either as anon, or as yawn or some such. I will not reply to him at all, regardless of what he has to say.

      May I suggest that you do the same. Discuss matters with others like me, Random, or other posters who are serious about the issues, and who actually listen to what you have to say. It makes life a lot more enjoyable.

      Anywho, keep up the good work, MM. I really appreciate it.

      And Random, you too have been a refreshing addition to the discussions here.

      And, as always, 6 and MaxDrei. I look forward to your views.

      1. A bad – and repeated (I notice that little tidbit escapes Ned’s “keen” perceptions) post.

        As to breaking the deal, Ned – let’s not misrepresent that too – it was you that broke the deal since you were obliged to recognize and incorporate the valid counterpoints raised to your various jihads. You failed to live up to your end of the bargain.

        Your self-imposed exile from my posts only hurts you and effectively places you in a bubble chamber. Good luck with that.

      2. (and btw, you not finishing discussions is nothing new – as you routinely leave discussions when your precious third party interests become threatened)

        All that you are accomplishing with your little game is cementing the fact that you are afraid to deal with the counterpoints that I have raised.

        You are conceding defeat on these points.

        So thanks for that !

  5. On PatentDocs there is an interesting discussion (and lament) of the USPTO Guidance on what I might loosely call “DNA-implemented inventions”

    On Patent Watchdog there is much wailing and gnashing of teeth about the increased difficulties of patenting computer-implemented inventions.

    Everywhere there is much discussion of what is a “Law of Nature”, what is “human activity” (playing Bingo?) and how pendulums swing backwards and forwards. I am told that the pendulum swings of patent law are just another Law of Nature. I don’t think so. Only in the USA, I think.

    One Law of Nature is that to every force there is an equal and opposite reaction. What might explain the American pendulum swinging so strongly is the unique “strength” of the US patent system.

    When something so strong gets over-mighty, a correspondingly strong swing is needed, in the opposite direction, to restore equilibrium.

    I am sure the swinging will subside and, when it does, what is fit for patenting in the USA will look much like the consensus the rest of the world has already reached, on what is fit for patenting.

    1. Then I suppose it is “natural” to think that when your right to your life becomes “too strong” it should be lessened to “restore equilibrium” so that the “consensus” will be more satisfied that their right to harm/destroy/murder you is not eclipsed by the “over-mighty” principle of your right to your life.

      The same is true I suppose for your property, your freedom… we must not let such things become “over-mighty”.

      I suppose if the US were to suddenly by magic offer complete protection of your individual rights against initiation of harm from others, nature would step in to re-adjust, to find the right “balance” where harm, theft, wrongful imprisonment are at JUST THE RIGHT amount.

      Apparently, what exactly is just the right amount is whatever it happens to be, because “nature” put it there.

      Kay sera sera

      1. Yeah. And even with fundamental human rights there are balances to be struck. How do you balance national security (the right to exist) with a right to privacy. These rights have to be kept in balance, and wild swings of the pendulum dampened down. It was ever thus.

    2. Max –

      Just to play Newton’s Advocate for a moment.

      For every action there is an equal and opposite reaction.

      If for every force, there were an equal and opposite force nothing would move.

      As for forces and opposing reactions…. I dunno, that feels kinda apples and orangey to me.

      MTFBWY
      LLAP

      1. Hi Les. Indeed: LLAP and MTFBWY. From Wikipedia:

        “Third law: When one body exerts a force on a second body, the second body simultaneously exerts a force equal in magnitude and opposite in direction on the first body.”

        One is tempted (these days) to suggest that an example of a first body is the CAFC and of the second is SCOTUS. And for sure, they both move around quite a bit, entirely unpredictably.

        Appley and Orangey? Really? The main thing is though, is what I wrote both, neither or just one of the group consisting of insolubly ambiguous and reasonably certain?

    3. Max, speaking of pendulums, the Nazis represented a reaction to Versailles and to communism. The post-World War II swing to the extreme left in Europe was of course a reaction to Nazism. Thatcherism in large measure was a reaction to the extreme leftism of its predecessors. And so on, and so on and so on.

      There is no doubt that the CCPA and the Federal Circuit were amongst the most liberal, and some would say, as I do, radical courts in the land for a very long time, defying sister circuits, their own precedent, and the Supreme Court on patentable subject matter and functional claim. They were aided and abetted by a patent bar and by certain major corporations that basically wanted to patent anything implemented by computers, and who wanted to functionally claim inventions.

      There is nothing radical at all in the recent Supreme Court cases. They are simply restoring the law to what it used to be prior to the radicalism of the CCPA and the Federal Circuit. Alice is simply Hotel Security redux.

      1. Nothing radical…

        Unless you consider a bloodless coup and the overthrow of the constitutional delegation to a certain branch of the government to write patent law, that is….

        (that Ned continues to misrepresent what happened BY CONGRESS in 1952 is shameful).

      2. Ned, pendulum swings are natural, and healthy, in politics. Reasonable people change their opinion, when the facts change. But when it comes to the incremental progress of the law, violent pendulum swings are not natural and not wanted. When legal progress swings off course, a Congressional touch on the tiller is preferable to frantic swings, left and right, on the precedent wheel. You characterize Prometheus/Alice as a powerful thrust on the tiller, to get back on course in one go. Perhaps you’re right. I lack enough historical perspective to comment usefully.

        1. LOL: comment of the day/week/month/year: “ I lack enough historical perspective to comment usefully.

          Think Chamberlain and Churchill.

        2. Well Max, anyone viewing the history of the CCPA and the Federal Circuit can see consistent disdain for cases from other circuits, their own past decisions, and with the Supreme Court. I think the last few years where the Supreme Court has taken so many cases is the result of a Federal Circuit totally out of control, especially in its dicta in Alappat, and of course, with State Street Bank that received the opprobrium of both an en banc Federal Circuit and of the Supreme Court.

          But Bilski itself was a halfhearted effort – to split the baby. Stevens wanted to restore Hotel Security and Guthrie v. Curlett, cases that Rich had “overruled.” Dyk’s dissent in Bilski wanted to flat out overturn State Street Bank as well and restore these cases.

          Well, since Prometheus and Alice, they are restored: in mixed non statutory subject matter/statutory subject matter cases, the non statutory cannot be the sole novelty in the claim, unless it is integrated as in Diehr (MOT is the given example of integration).

  6. The CAFC’s Planet Bingo opinion is in my estimation another example of a court saying “abstract” when what they really mean is “obvious.” Merriam-Webster thinks that the word “abstract” means relating to or involving general ideas or qualities rather than specific people, objects, or actions. Planet Bingo’s claims are not abstract according to any understanding that I have of that term. The claims may be unremarkable, but that’s a different analysis. This isn’t going to go well for patent applicants already fighting a PTO examining corps that complicates patent prosecution with everything other than meritorious 102/103 rejections.

    1. Planet Bingo’s claims are not abstract according to any understanding that I have of that term.

      The analysis is not “look at the claims and determine whether it looks abstract.”

      The analysis is “does the claim protect an abstraction.”

      Given the relationship of the claims to the prior art, the answer is “yes”.

    2. Mike,

      The abstraction is in the assigning of meaning to the numerical data being processed by the computer. A computer doesn’t “know” the difference between a bingo card and a blood pressure chart (and those who pretend that it does are anthropomorphizing). When you say “when this location has a 14 in it, it represents such-and-such location on a Bingo card”, that relationship is pure abstraction.

      1. And yet, usefulness is obtained.

        (you have a serious problem with your own “abstraction” and the fact that real utility ‘happens.’)

        1. Anon,

          I absolutely agree that abstractions can be useful and provide utility.

          That does not necessarily convey patent eligibility for those abstractions.

          1. ladders of abstractions Dobu – check with a patent attorney of your choice for understanding these things (and how over 95% of patents of any worth use them).

            and note that the word ‘abstraction’ should not frighten you away from the proper legal understanding.

            1. Anon,

              Yeah, I’ve seen the paper from Northwest U. Basically, fuzz all the details you can in order to claim the broadest possible scope you can get away with.

              That one can “abstract” away all the details of a particular concrete object does not mean that the resulting “abstraction” no longer refers to a concrete object. While “airplane” as an abstraction can refer to the Kitty Hawk or the Spirit of St. Louis, the term “airplane” still refers to concrete objects. I have seen airplanes. I have touched them. They have moved me from Point A to Point B (which isn’t abstract, either).

    3. Mike, to elaborate on MM’s point, when claims mix the statutory with the nonstatutory, the improvement must be in the statutory.

      Is this simple enough?

  7. Isn’t the real reason behind the push for subject matter invalidity (in the US and elsewhere in the world) “really” motivated by the “sensibilities” of the adjudicator being offended by what in their minds is the apprehension of something in the realm of the obvious (or possibly lacking in novelty)?

    The question THEN is WHY continually break s. 101 with irrationality, “illogic”, uncertainty, bad application/precedent, when there are 102 and 103 which arguably could be shored up with reasoned analysis, setting of new precedent etc. Intellectual integrity would presumably require an adjudicator to introspectively understand that he/she really wants to invalidate the patent because in some way (in their opinion anyway) the claimed invention is obvious, and thus the proper way to proceed is to decide the case on a reasoned basis analysing the claim within the framework of the obviousness inquiry. If after having diligently performed the necessary obviousness inquiry the adjudicator was led by reason to conclude that the claim was not in fact obvious, then the adjudicator should be satisfied that what they had in their minds originally was in fact only a “misapprehension” of obviousness. Of course in some cases the finding, as dictated by reason and applicable law and principles, would be that the claims were obvious.

    In either case, why shy away from what they really think is the real problem?

    I mean really why DID/DO THEY go THERE (mess with subject matter eligibility)?

    1. Isn’t the real reason… obvious… novelty…

      Clearly they will tell you (with a straight face): No.

      Intellectual honesty is, um, well, obviously not required…

      ;-)

    2. anon2, I think it was 6 who informed us that when a software related invention was being examined under 103, that the PTO considered all limitations regardless that the novelty was nonstatutory. The Federal Circuit analysis also supported this method.

      Clearly, it is not possible when viewing an invention under 102/103 to give weight to the nonstatutory aspects of software (which in most cases, is all that there is) without simply erasing 101. But this is what the PTO and the Federal Circuit were doing at least since Alappat and State Street Bank.

  8. So the concept of a wheel was a mental process but it transformed humanity. Somebody had to dream it up. Not patentable now?

    So a computer hardware system does nothing without a program written by someone to carry out the function. If the function itself is to add two numbers then that is a mental process you could do in your head. What if the computer program must multiply 10,000 different numbers? Still not patentable? What if the computer had to process the multiplication and then based on a logic statement send the results or not send it based on a second idea. But wait, the idea of sending it somewhere else was added. Still not patentable?

    How advanced must the idea become before it is no longer abstract and what threshold is used to determine this?

    People create invention by combining things, changing them, improving them. If nobody can get a patent that fundamentally changes the way something is done is it not patentable?

    What if the abstract or mental concept transcends the computer and manifests itself into actual practical reality that cannot be carried out by the computer or software itself?

    What happens when the new process or system itself changes the way people behave…changes humanity?

    Take for example an iphone…before Apple created it, nobody had such a device. Look how it has affected our society. Look at all the other companies cloning and copying it now…

    The chips inside it are no different than chips in a desktop…
    The battery in it is no different than in other devices.
    The screen in it is just a miniature version of an existing screen or display
    The radio has existed for nearly 100 years.
    The touch screen existed before the iphone

    Apple combined many existing technologies, improved some to adapt it for the need but fundamentally they invented nothing. Is the Billions spent by Apple not able to be protected by the application for patents? Surely Apple is due some advantage in industry for its thought leadership correct?

    Take a small business. What if a small business had filed for a patent for the Iphone and described it in detail. Even CAD drawings, schematics, even a sketch that looked exactly like the actual product, envisioned in their head from a mental thought process. Next they start showing it to people, getting NDA’s signed. The build a prototype, try to raise money to bring it to market. Next, apple gets to see it during a meeting and runs with the idea. The small inventor spent 5 years and every dollar they had trying to live the American Dream and Apple had stolen the idea from the Inventor and built the Iphone from the ideas and schematics and renderings from the inventor? Is that fair? Is that legal?

    The Supreme Courts decision to render on ALICE the way they did was hastily adapted by the USPTO without significant reform or thought to eh implications it has to squash invention by small business. A small business owner or inventor could spend YEARS of their life and every penny they own trying to tackle complex tasks. They may think of it first and under ALICE, now a large company with deep pockets can just take the idea and run with it or they eventually figure it out. Truly devastating to small business.

    Here is another question to ponder in this ruling: Everything a human does is a thought process including the amazing art that pops out of an artists head such as the Mona Lisa…or Starry Night by Van Gogh…these are just your eyes seeing something such as the woman in front of you and painting it. It’s fundamentally a complete mental thought process that’s by nature doable by any human right?

    I would ask…if that’s the case, why not do away with Copyright on paintings?

    What about novels that combine words from the English language? Every word in the dictionary is already invented. Writing them in a new order is not novel. Eventually everyone writes them in that order at some point or another. Shouldn’t we ban copyright laws and not let a writer claim novelty for the use of the English language?

    There is a fundamental issue with condemning all abstract ideas as not patentable and I argue that treating a writers use of different order in the english language to be protected vs. writing an idea in a patent creates protections with different treatment for different classes of citizens and the inventions they create. By this I mean a Novel should should be protected because it is just a mental thing right? I mean you didn’t actually invent a word or combine them in a way that was new. Surely I could combine the same words…

    I think there is going to be hell to pay on capital hill for this ruling and we will see MANY lawsuits to change the ruling over ALICE and or to at the very least make significant changes to the interpretation of it.

    1. >A small business owner or inventor could spend YEARS of their life and >every penny they own trying to tackle complex tasks.

      Great post! I work with start-up companies where engineers with Ph.D.’s spend years of their lives making advancements in technology.

      We live in world now with the director of the PTO waiting to take home $20 million from Google, fed. cir. judges being appointed with no science or patent law background (and making promises to burn the system down to get the appointment), and CJ Smith stacking the board to burn the system down.

      They are like Putin denying he has invaded the Ukraine. They deny science exits. The rule of law. The 1952 Patent Act. The only end to their lack of morals and ethics is if they go too far and have to be impeached. Beyond that expect anything from this lot. I am sure shadow director Lee would shove you off a cliff for her $20 million.

      1. I work with start-up companies where engineers with Ph.D.’s spend years of their lives making advancements in technology.

        Sure you do.

    2. So the concept of a wheel was a mental process but it transformed humanity. Somebody had to dream it up. Not patentable now?

      It wasn’t patentable then, and yet it still happened. Amazing.

    3. Apple combined many existing technologies, improved some to adapt it for the need but fundamentally they invented nothing. Is the Billions spent by Apple not able to be protected by the application for patents? Surely Apple is due some advantage in industry for its thought leadership correct?

      What a bizarre argument. They invented nothing, and yet they deserve patent protection because they have spent billions?

    4. Congrats, Chris.

      That’s the lamest combination “sky is falling” and “what about the children?” style rant I’ve ever read here.

      there is going to be hell to pay on capital hill for this ruling

      What planet are you from?

    5. Chris, with all due respect, while the idea of a wheel is abstract (see the Rubber Tip Pencil Case cited in Alice and Benson) the wheel itself is a manufacture or a machine. The idea was implemented in something otherwise statutory.

      An idea to add one number to another — just how can one implement this in hardware? Well circuits of a computer for one, that take two inputs and add them together.

      But if one only uses a GP digital computer to do the math, nothing is implemented in any way to improve the computer. The computer is simply being used.

      If your objective is to patent software and not improved hardware, I think that that ship has sailed.

      1. The idea was implemented in

        implemented in…?

        “Being used” – again with the canard.

        Inherency Ned – one cannot use what one does not have the capability to use – you AGAIN jump over a critical step.

      2. Ned,

        The “idea” of ANYTHING is abstract.

        Kitchen table: abstract.

        Table saw: abstract.

        see saw: abstract.

        While you appear to delight in pedantic dissembling, the patent system is in shambles.

        WAKE UP.

        1. Anon,

          Please look up the dictionary definition of “abstract”.

          Kitchen tables, table saws, and see-saws all exist in the real world. They can be physically manipulated, and do not only exist in the mind. They are concrete objects, not abstract.

          1. Dobu,

            Please inform yourself that the word is being used in a legal context.

            Then read the case – including the oral arguments, and understand that everything that I have said concerning the case is true and accurate.

            as to kitchen table – how much do you want to bet that if you take 100 readers of that comment, have them sketch out in exacting physical detail the mental image that first flashed in their mind, that NO TWO sketches would match?

            Respectfully, you need to come up to speed in this legal discussion.

            1. Anon,

              Black’s has no entry for “abstract”. I will also point out that the layperson definition is a dandy match for how the courts have been using the term. But feel free to keep using your “legal context” while bemoaning the courts “failure” to provide that “legal context” when they use the term. O.o

              The Alice decision found “escrow” (or, if you prefer, “intermediated settlement” to be an abstract idea. Fits the layperson definition, but since nobody knows the “legal context” definition, I guess it’s still up in the air.

              You apparently want to apply this “ladders of abstraction” idea to the courts’ uses of the word “abstract”. It doesn’t seem to me that the courts are using that ladder-based perception, and that is where your disconnect is occurring.

                1. Not a matter of my believing anything 6 – it just is not so – quite outside of me.

                  You need to learn how to grasp that.

      1. Anon,

        Once you have perceived the image of that distant object, that image has already passed you, and continues away from you at the speed of light. Neither you nor any other human will perceive that object’s particular moment in time again, without either time travel or faster-than-light travel (which some models hold to be the same thing).

        Regardless of the age of any infinitessimally small slice of the “signal” finally reaching you, your perception of it is instantaneous and fleeting.

        In other words, transitory.

        I will also add: props for the cool link! Thanks.

        Kindest regards,
        Dobu

          1. [double-post to address mod filter . . . ]

            NWPA,

            No. But the 13 microseconds while any given portion of the signal is within mankind’s ken here on earth, before it is lost to us forever, is certainly transitory.

            (c = 671 million m/h, and I used a jenerous 9k miles for diameter of earth)

            1. sooo…. recording devices are unknown to you….

              (and further, you are still not addressing the proper legal meaning)

              Dobu – if you want to hold a conversation, you are going to have to learn the language.

              1. Anon,

                No recording will ever achieve 100% fidelity for reproducing an analog signal. You may be able to capture and reproduce imperfect replicas of the signal, but the signal itself is still forever lost after an instant in time.

                The “proper legal meaning” of transitory? Pray tell, how might that differ from how us laypeople use the term?

      2. You know what’s funny anon? A few rants of yours about this topic back I reread a passage in Nuijten. They even address “light” and how it might or might not be transitory, but then they note that specifically right around our world (i.e. when it is in their jurisdiction) light etc. is transitory. I guess you never noticed that little part to the decision did you?

        1. 6, it is not a matter of not noticing. It is a matter that the science is wrong. And Obama is appointing people where there is no hope of them every figuring out science.

          Sad. Ridiculous.

        2. Light is transitory. That’s why we are still measuring light generated at/by the Big Bang, some 15,000,000,000 years ago.

          link to space.com

          But a court (an English major… or maybe Ply Sci) said it, so it must be true.

          1. Lester the point made in Nuijten is that the light in their jurisdiction, right around earth, is transitory. As in, the distance around the earth that their jurisdiction extends is so small that light goes right through it in a blink and is gone.

          1. Part and parcel of the problem, Les: ANYTHING ever made by the hand of man is transitory.

            Name a single thing (anyone) that is not so. Name a single thing made by the hand of man that even remotely approaches the 7 Billion year mark…

            anyone?

            Bueller?

            link to youtube.com

            1. Anon,

              If you want to take your word games to ignorant extremes, everything is transitory (stars fizzle out, universe collapses on itself, maybe into another big bang creating the next universe).

              The brief amount of time that a segment of an electromagnetic signal is within humankind’s reach is usually insignificant enough that most people would consider it “transitory”.

            1. The decision is the rule of law – but it is very clear that the decision is bad science.

              Your belieb system gets in the way here 6 – it is amazing that you like to consider yourself a man of physics and yet you accept the “logic” of the decision.

  9. >these claims are directed to the abstract idea of “solv[ing a]
    >tampering problem and also minimiz[ing] other security
    >risks” during bingo ticket purchases. Appellant’s Br. 10,
    >20. This is similar to the abstract ideas of “risk hedging”
    >during “consumer transactions,” Bilski,

    this may be the weakest part. The SCOTUS said that the abstract idea was notoriously well known in both Bilski and Alice. Here, they are using the standard that if it is “like” something that is well-known then it counts.

    Really not good.

    1. In fact, in a sane world, I’d say take that “like” to the SCOTUS or en banc.

      Just think about it my friends, the Google Shills have broadened the test so that the abstract idea doesn’t have to be known at all as long as it is something “like” something that was known. Another 103 chucked into Alice 101 analysis. Also great that there is no cite to anything other than what the Google Shills think about this.

      Shameful. Shameful. Shameful.

      1. The SCOTUS said that the abstract idea was notoriously well known in both Bilski and Alice. Here, they are using the standard that if it is “like” something that is well-known then it counts.

        All the CAFC is saying is that “verification” by “matching stuff” is an ancient concept and merely reciting “matching stuff on a computer” does not constitute an eligible invention, whether that stuff is relevant to a “computerized” Bingo game, a “computerized” bank transaction, a “computerized” fingerprint scan, a “computerized” retina scan, a “computerized” full body scan, or any other collection of matchable information.

        Now, you may ask: what about a new machine that ge nerates such information, where such information was previously unobtainable, and where the new machine is described in objective structural terms that distinguish it from the prior art machine? That’s an entirely different story, of course. Almost surely eligible and patentable (absent some other theoretical failing).

        take that “like” to the SCOTUS or en banc.

        Please, please, please somebody do this! The more of this j nk the SCOTUS and the public hears about, the better off we’ll all be.

        Reminds me: how’s that ABL petition for cert doing? You know, the one describing the “computerized” method of looking up a bunch of relevant medical treatments?

        1. MM: All the CAFC is saying is that “verification” by “matching stuff” is an ancient concept and merely reciting “matching stuff on a computer

          You are so obviously not an attorney. Your “all the CAFC is saying” is ridiculous. The fact is that the Google Shills are using a much weaker standard–much, much.

          Under the Google Shill doctrine almost anything is abstract and nothing is patent eligible.

          Outrageous.

      2. the Google Shills

        No fan of Google myself but you’re deluding yourself if you think that Google has anything to do with these changes other than contributing to the number of laughably cr ppy computer-implemented claims out there.

        1. And the coffers of the Democrats to get Obama to appoint those Fed. Cir. judges and shadow director Lee.

    2. The SCOTUS said that the abstract idea was notoriously well known in both Bilski and Alice. Here, they are using the standard that if it is “like” something that is well-known then it counts.

      All they are saying is that “verification” by “matching stuff” is an ancient concept and merely reciting “matching stuff on a computer” does not constitute an eligible invention, whether that stuff is relevant to a “computerized” Bingo game, a “computerized” bank transaction, a “computerized” fingerprint scan, a “computerized” retina scan, a “computerized” full body scan, or any other collection of matchable information.

      Now, you may ask: what about a new machine that generates such information, where such information was previously unobtainable, and where the new machine is described in objective structural terms that distinguish it from the prior art machine? That’s an entirely different story, of course.

    3. The SCOTUS said that the abstract idea was notoriously well known in both Bilski and Alice. Here, they are using the standard that if it is “like” something that is well-known then it counts.

      All the CAFC is saying is that “verification” by “matching stuff” is an ancient concept and merely reciting “matching stuff on a computer” does not constitute an eligible invention, whether that stuff is relevant to a “computerized” Bingo game, a “computerized” bank transaction, a “computerized” fingerprint scan, a “computerized” retina scan, a “computerized” full body scan, or any other collection of matchable information.

      Now, you may ask: what about a new machine that generates such information, where such information was previously unobtainable, and where the new machine is described in objective structural terms that distinguish it from the prior art machine? That’s an entirely different story, of course.

      take that “like” to the SCOTUS or en banc.

      Please, please, please somebody do this! The more of this j nk the SCOTUS and the public hears about, the better off we’ll all be.

      Reminds me: how’s that ABL petition for cert doing? You know, the one describing the “computerized” method of looking up a bunch of relevant medical treatments?

  10. Hypothetical: Prior art teaches a computer that compares two numbers and makes a beeping noise if the first number is larger than the second number.

    Question: Is it a patent-worthy improvement to describe that method using new labels for the two numbers (e.g., “Granny’s light brown facial moles on day 1 at 1 pm” and “Granny’s light brown facial moles on day 11 at 3 pm”)?

    If you believe the answer is yes, please explain why. Please explain whether (and why) your reasoning also suggests that we should permit patents on methods of comparing two numbers using a pencil and paper and/or without a computer.

    For some mysterious reason, the typical vociferous proponents of computer-implemented j nk have great difficulty with the fundamentals. Here’s a chance for them to demonstrate some insight.

    1. Hypothetical: I spend a few months in my garage and create some special hardware that can simulate a human neural network such that the system can as capably interact with people as, say, MM. Presumably we would all agree this is patent-eligible subject matter. But now say I realize this non-standard and expensive hardware will be a tough sell in the marketplace, so I spend a few more months working on a way to fully simulate this neural net on a generic computer without losing any functionality and am able to achieve this breakthrough. Is this latest and better invention ineligible subject matter because it can be performed mentally by a human, or because it is not useful, or . . .?

      1. Curious, do you have any idea as to what the difference is between software and firmware?

        I suggest you do not, otherwise it would be clear that you would be erecting a disengenous strawman argument in support of the patenting of software.

        Firmware causes the machine to operate differently and improve the machine. Such is entirely patentable.

          1. Close — my point is that over time it is often the case (and desirable) that we can attain functionality that originally required special hardware by creatively applying software on more standard hardware. This is the fundamental way information technology has and will continue to evolve because it is almost always more efficient to deliver functionality by means of software on standard hardware than through use of non-standard hardware.

            So my little hypothetical simply points out that if we are not careful we will get the non-nonsensical result that the superior invention based on a software breakthrough is not patent eligible but its inferior predecessor is.

            1. Curious, one does not achieve a superior machine through software — unless it really is not software, but a form of firmware. OS’s are like that. They start automatically on boot and control the interface with the rest of the world. I think OSs are entirely patentable.

              1. “one does not achieve a superior machine through software” — I don’t know what a “superior machine” is, but I do know what superior functionality is, or what the same functionality at a lower cost is, and software advances on more standardized hardware deliver that. As in my hypothetical, one could use special hardware configured so as to behave much like human neurons and synapses and as a result to be able to generate impressive functional capabilities. But if you could simulate the capabilities of this exotic hardware on a standard digital computer with software written in a high level language that results in the same functionality and cheaper, that would be an even better invention.

                Again, for those that want to wed patent eligibility to specialized machines, you run headlong into the nonsensical result that, for what really matters from the standpoint of technological advances, functional capabilities, the inferior special hardware-based solution is patent-eligible but the superior solution is not. Not exactly the way to promote technological progress (as measured by superior functional capabilities, not “superior machines”)

              2. Curious, artificial intelligence using software? But assuredly it would do more than just sit there. It would be fixed up to inputs and outputs to form a robot or the like.

                I think you are fundamentally confused and I don’t know why.

                Night always gives examples of a improved car driven by a GP digital computer with new software. Such a system can be claimed as an improved car. It is not simply an a programmed GP digital computer.

              3. So Ned, let me see if I’ve got this straight: you are arguing that if the draftsman claims a system in which instructions that are executed to provide a certain functionality do so from non-volatile memory (firmware), that is patent eligible, but if the instructions are executed from volatile memory (software) they are not? The draftsman merely needs to add the magic “non-” to an identical claim set, and the ineligible is magically transformed to the eligible. Is that what you are seriously arguing in light of Alice?

              4. Curious,

                I invite you to Google “Ned Heller” and check out his third party interests.

                Nearly all of what Ned posts are aligned with those interests – and color what he will say – and what conversations he will not engage in.

              5. Curious, on the claim, yes. If you make the software an integral part of the machine so that the operation of the machine is improved, I daresay that you have gone 99% in the right direction.

                When software becomes integrated with the machine, it is known as firmware. I think firmware is eligible, maybe not categorically eligible, but close to it.

              6. Ned: “If you make the software an integral part of the machine so that the operation of the machine is improved, I daresay that you have gone 99% in the right direction.” So since the operation of the machine is the same whether the same instructions are executed from memory that does or does not need continuous power, you are hinging eligibility on the type of memory/storage used. I’d give you credit for courage if you wanted to make that argument to SCOTUS.

                The reason for this gobbledygook-sounding logic is that you have the hardware/machine tail wagging the system/functionality dog. If there was any justification for that previously, it should have been emphatically dispelled by Alice. Similarly, others expound the ability for humans to execute claimed steps as their tail that is doing the wagging. Also a consequence of not reading Alice carefully.

                For better or worse, SCOTUS in Alice made a policy decision. They did not DEFINE abstract nor do I believe they will ever do so. What they did do is DECIDE on what is abstract. And they were very, very clear, with multiple statements, that what drives their decision on what is determined to be abstract is preemption. Everything else is subsidiary. If it looks like too much is preempted, it’s ineligible. It’s that simple. So with respect to computing, they were very clear in recognizing that generic computers were machines (regardless of specific types of memory employed). It’s just that today’s generic computers don’t generally limit preemption, so they don’t help save overly broad claimed functionality from ineligibility. Now if you want to implement the same functionality on a Rube Goldberg contraption, that wouldn’t preempt as much, and so it is more likely to be eligible. This is also why MoT will remain an important clue, but only a clue, with respect to eligibility—because it has an influence on the degree of preemption, but it is always going to ultimately be subordinate to the preemption judgment.

                The same mistake is made by those that want to claim that just about anything that a computer does can be done mentally by human if they work at it hard enough, and so it’s all ineligible. No, again, preemption rules. If a set of claims can be performed in the minds of thousands of physicians on a daily basis, there is a preemption problem, so the claims are ineligible. If one in a million people take the time to execute an elaborate set of claimed steps in their head, with perhaps the aid of their fingers and toes, there is not a preemption issue.

                It should be clear by now that SCOTUS has not and never is going draw eligibility lines based on the nuances of RAM, ROM, EPROM, etc. Likewise they are never going to draw lines based on elaborate philosophical arguments of what constitutes abstractness. They are simply going to decide based on whether it looks like the claimed invention is too preemptive to promote progress.

                1. Curious, the antonym of preempt is apply – to improve a particular machine, manufacture, composition or an otherwise eligible process. That is my argument.

                  However, if the PON remains nonstatutory, there still may be a problem even if the application is particular.

                  We shall see.

        1. Ned, you’re embarrassing yourself. You need to go and off and learn what firmware and software are. To EE’s and programmers, there is no difference.

          Maybe you can understand it this way: For small devices, firmware is the operating system for the device with which application software interacts. The firmware controls pieces of the device as instructed by the application software. It’s a first and second layer. For a higher order computer, windows is firmware. It’s the operating system for the computer with which application software interacts. Windows controls all of the devices and I/O for the computer while the application software tells Windows what to do.

          1. bja,

            check into Ned’s background: his embarrassment flows from his third party interests. he is unable to commit to discussions truly on the merits.

          2. Bad joke, appear you haven’t been reading my posts. I have course agree that OSs and the like are part of the machine, albeit they are called software. The critical issue is whether they are integrated with machine, not how they are stored.

            Gaming software clearly is integrated with machine.

            1. The critical issue is whether they are integrated with machine,

              Machine components are patent eligible in their own right as manufactures, Ned.

              Or is this somehow less a “critical issue” in patent law for some (unstated) reason?

              1. (notwithstanding one lame attempt by tech dolt – and the typical vap1d non-answer namecalling from Malcolm, no one yet has even attempted to show any software that is not a machine component and manufacture in its own right)

                The reason is simple: software is defined as a machine component and manufacture – such is what it is.

                Intellectual honesty on this point moots the anti’s.

    2. MM, I know what you mean about them there numbers and information processing all being the same. I stopped going to the doctor because it was so expensive. I now go to a tarot card reader instead of a doctor. I figure it doesn’t make any different. You put some information in to the person and then some information comes out of the person. Doesn’t really make any difference.

    3. I also find that for chemicals it is the same thing. I just add different things and heat and mix. Doesn’t really matter. There is stuff inside the test tube and that’s all that matters.

    4. Well we’ve heard from the two resident geniuses.

      Anybody else? How about somebody new? Bobby Zeidman, are you out there?

      1. I’m half way through the Feb 2013 Kevin Collins Paper on Prometheus, Mental steps and Printed Matter that you Malcom so helpfully told me about in an earlier thread here.

        I am finding it very illuminating and educational. I think Ned would enjoy it too. For others here though, it likely makes uncomfortable reading.

        Perhaps, when I have read to the end, and digested it, I can comment constructively on your hypo.

        1. Well here is what that paper says about the printed matter doctrine which is NOT what MM says:

          The gist of the doctrine is that the
          knowledge conveyed by printed matter to a human reader—i.e., the “content” of the
          printed matter—cannot be considered by a patent examiner or a court that is
          determining whether a claimed invention is novel.12

          1. To the human mind is conveniently overlooked and the goalposts are typically moved such that the claim as a whole is entirely (and purely) something ‘in the mind.”

            Funny, though – aside from Les (whom I try to take his car keys), NO ONE argues this viewpoint.

            It is unethical and dishonest the way the position is argued, attempting to dissemble this fatal flaw.

        2. Nothing wrong with reading Colins with an open mind, but as my Uncle Ben often told me (among other sage advice), do not have your mind so open that your brains fall out.

    5. Hypothetical: I spend a few months in my garage and create some special hardware that can simulate a human neural network such that the system can as capably interact with people as, say, MM. Presumably we would all agree this is patent-eligible subject matter. But now say I realize this non-standard and expensive hardware will be a tough sell in the marketplace, so I spend a few more months working on a way to fully simulate this neural net on a standard computer without losing any functionality and am able to achieve this breakthrough. Is this latest and better invention ineligible subject matter because it can be performed mentally by a human, or because it is not useful, or . . .?

    6. Patent worthy? No. Easy 103 argument that’s not worth even getting into.

      Eligible for patent protection? Absolutely.

      Bad, bad hypo dude.

      1. mmmkay hits upon yet another unethical treatment of dustkicking that is so often employed in the 101 “discussions”: there is a very real difference between patent eligible and patentable.

        Why then do the anti’s insist on ignoring this material difference?

        Ned, care to explain?

        1. 35 U.S.C.
          United States Code, 2011 Edition
          Title 35 – PATENTS
          PART II – PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS
          CHAPTER 10 – PATENTABILITY OF INVENTIONS
          Sec. 101 – Inventions patentable
          From the U.S. Government Printing Office, http://www.gpo.gov

          §101. Inventions patentable

          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.

          (July 19, 1952, ch. 950, 66 Stat. 797.)
          Historical and Revision Notes

          Based on Title 35, U.S.C., 1946 ed., §31 (R.S. 4886, amended (1) Mar. 3, 1897, ch. 391, §1, 29 Stat. 692, (2) May 23, 1930, ch. 312, §1, 46 Stat. 376, (3) Aug. 5, 1939, ch. 450, §1, 53 Stat. 1212).

          The corresponding section of existing statute is split into two sections, section 101 relating to the subject matter for which patents may be obtained, and section 102 defining statutory novelty and stating other conditions for patentability.

          Section 101 follows the wording of the existing statute as to the subject matter for patents, except that reference to plant patents has been omitted for incorporation in section 301 and the word “art” has been replaced by “process”, which is defined in section 100. The word “art” in the corresponding section of the existing statute has a different meaning than the same word as used in other places in the statute; it has been interpreted by the courts as being practically synonymous with process or method. “Process” has been used as its meaning is more readily grasped than “art” as interpreted, and the definition in section 100(b) makes it clear that “process or method” is meant. The remainder of the definition clarifies the status of processes or methods which involve merely the new use of a known process, machine, manufacture, composition of matter, or material; they are processes or methods under the statute and may be patented provided the conditions for patentability are satisfied.

          (Emphasis added)

          1. Les,

            1. A discovery is of something that exists. How can one discover a new composition. The courts have followed Jefferson’s plan and have ruled that a newly discovered product of nature is not eligible under 101 because it is old.

            2. Abstractions, i.e., mental steps, are not eligible because they are nonstatutory, not because they are statutory and there is an exception.

            3. The problem occurs when there is a mix of the statutory and the nonstatutory. In such a situation, the proper term is that the claim is not patentable because the non statutory is given no weight and the statutory is not novel.

            1. 2. Abstractions, i.e., mental steps, are not eligible because they are nonstatutory, not because they are statutory and there is an exception.

              Show me please where in 35 101 there is an exclusion of steps performed in the mind.

    7. And here is my hypothetical for you.

      Claim 1: A vehicle comprising: a frame; a plurality of wheels each rotatably connected to the frame; and a seat supported by the frame.

      Is this claim patent-eligible under Alice? Let’s take a look:

      (1) Claim 1 is directed to the abstract idea of moving something from Point A to Point B.

      (2) The claim doesn’t include “something more” “inventive” enough to save it, just old concepts that operate as they always have.

      This is the problem with Alice. It can be interpreted to slam the door to all claims – not just computer-implemented claims – not directed to novel and non-obvious subject matter.

  11. Software patents can be divided into two types:
    (1) The advancement is technical — it’s an advancement in computer science — OS design / compilers / etc — the stuff that universities give out PhDs for.
    (2) The advancement is non-technical — a computer is used, but what’s really inventive is what it’s used for — the semantics of the data involved.

    If the SCOTUS/CAFC want to get rid of non-technical software patents, they should just come out and say so. Rather than writing more convoluted / non-sensical opinions like Alice and this one.

    1. Very good point. Brings up a good question is there any way that a set of claims could be written from the specification that would survive the Google Shills?

  12. Claims like these that recite hardware in them are NOT abstract, in any normal sense of the word — to infringe, you need hardware. Hardware (including the components recited in these claims) is stuff that you can grab and hold in your hands. How is a method claim that recites hardware possibly abstract? (It is only if you don’t understand what “abstract” means, and/or you just decide to go against the all-elements rule and just treat certain elements like they’re not there.)

    If the SCOTUS and the CAFC want to get rid of non-technical software patents (like this one), I’d prefer if they push the law toward something like the test used at the EPO. While I don’t necessarily like the EPO test from a policy point of view, it makes sense. It’s internally consistent, and you can apply it without too much controversy/gray area.

    But in the meantime, we have these cases that tell us that claims that recite a processor are “abstract” because a person could do most of the method with pencil / paper, provided that you read a bunch of claim elements away. Who comes up with this stuff!?!?

    1. Hardware (including the components recited in these claims) is stuff that you can grab and hold in your hands. How is a method claim that recites hardware possibly abstract?

      News flash: that kindergarten-grade argument was floated and it failed miserably, for very good reasons. Since you seem to have great difficult keeping up, I’ll give you one simple reason.

      Consider the following claim:

      1) A method of improving cancer treatment, comprising the steps of: thinking about a correlation between ear lobe length and cancer, wherein said ear lobe length is between 1.43 centimeters and 1.94 centimeters, and entering data regarding said ear lobe length into a computer that is so hard and real that it will break your foot if you drop on it.

      That claim is ineligible j nk because it protects an abstraction (information about ear lobe length). It doesn’t matter if the ineligible abstraction is protected only in the field of computers or only in the field of mindreaders. You can’t protect the abstraction, period.

      Please stop hyperventilating and think about this for a few seconds and you’ll begin to understand why we put restrictions on what is eligible for patent protection, and why those restrictions can’t be circumvented by lawyers.

      You’re welcome.

      1. the banal pet Malcolm theory with all its warts – and none of the honest replies to my previous postings of the little pet theory’s fallacies…

        (yawn)

    2. If the SCOTUS and the CAFC want to get rid of non-technical software patents (like this one), I’d prefer if they push the law toward something like the test used at the EPO. While I don’t necessarily like the EPO test from a policy point of view, it makes sense. It’s internally consistent, and you can apply it without too much controversy/gray area.

      New Zealand has an even better test.

      link to qz.com

      In New Zealand, a poll of the members of the Institute of IT Professionals revealed that 94% were in favor of banning software patents.

      When’s the last time someone took a similar poll of IT professionals in the US? Oh wait: I forgot that anyone who wants to ban software patents is ignorant of patent law or Amish or both. Never mind. I mean, what would be the point?

      1. “In New Zealand, a poll of the members of the Institute of IT Professionals revealed that 94% were in favor of banning software patents.”

        No doubt also in New Zealand 94% of software patent lawyers were in favor of not banning software patents.

        1. Gee, I guess New Zealand is the type of software economy we want. Gee, could it be they don’t want patents because they use our technology? I heard 94% also don’t want copyrights on movies.

              1. Did MM’s article actually have any data on ” 94% of software patent lawyers were in favor of not banning software patents” – or did you just pull that out of your arse?

              2. “Did MM’s article actually have any data on ” 94% of software patent lawyers were in favor of not banning software patents” – or did you just pull that out of your arse?”

                That was what’s known as a joke re re.

    3. How is a method claim that recites hardware possibly abstract? (It is only if you don’t understand what “abstract” means, and/or you just decide to go against the all-elements rule and just treat certain elements like they’re not there.)

      But you would agree that if this rule were actually used, nothing would be unpatentable under 101, since you could always take a mathematical equation or any other thought and fix it on a paper or hard disk medium, right?

      Plus what’s to stop someone from making a system claim and adding “the system comprising (an otherwise non-limited) machine”? Is the word machine in an otherwise ethereal system some sort of magic word? I would think not.

      That’s where we come to the processor. The processor is there, but only because it can be without really limiting your infringement actions. The thing doing all the work, and what the claim is actually about, is the code. And that code isn’t described in any way other than by what you want the code to achieve. At that point you’re not so much describing your machine as just stating some goal you would like to achieve, right?

    4. Commie, the apparent contradiction occurs because nonstatutory subject matter is included in the same claim as statutory. If the statutory subject matter is old, the nonstatutory new and not integrated with the old to improve it, then the claim is on the nonstatutory subject matter.

      Pika cited to Prater I that set forth some pretty good rules for analyzing this topic. The are the same rules from the 2nd Cir line of cases that begins with Hotel Security. The Abrams rules:

      ” 1. If all the steps of a method claim are purely mental in character, the subject matter thereof is not patentable within the meaning of the patent statutes.

      2. If a method claim embodies both positive and physical steps as well as so-called mental steps, yet the alleged novelty or advance over the art resides in one or more of the so-called mental steps, then the claim is considered unpatentable for the same reason that it would be if all the steps were purely mental in character.

      3. If a method claim embodies both positive and physical steps as well as so-called mental steps, yet the novelty or advance over the art resides in one or more of the positive and physical steps and the so-called mental step or steps are incidental parts of the process which are essential to define, qualify or limit its scope, then the claim is patentable and not subject to the objection contained in 1 and 2 above.”

  13. The opinion refers to mental steps (part II A, citing the district court).

    There is a detailed analysis of the history of the mental process doctrine in APPLICATION OF PRATER 415 F.2d 1378 (1968). How has the doctrine evolved since?

      1. machines really do not think.

        Right. They just receive, store, process and transmit information. That’s nothing at all like thinking. Determine, compare, identify … those are totally technical terms that have nothing at all do with mental processes.

        This is some especially deep, compelling stuff your providing, Billy. You know what? You should call up these guys with the dead bingo patent, Billy. They could have used a genius like you on their team. Maybe they were born yesterday like you seem to have been. You’ll get along great.

      1. It’s going to be extremely interesting to watch Google as it starts moving toward marketing a self-driving car – the key component of which is entirely software, which is also amenable to the trendy “smell test” style of jurisprudence that all of its complexity amounts to “basically driving.”

        I’m guessing that Google’s rhetoric will suddenly shift to a “what *other companies* do shouldn’t be patentable, but our software should be” stance.

        1. What is clear about Google is that they are out for themselves and very clever. We should not forget that they have killed a number of other search engines include Yahoo by very cleverly hiding what they are up to. The said they were the great friends of the print media, yet they have taken all their advertising money.

          Google is one of the greatest monopoly players in the world. Let’s also not forget that they have set some pieces in motion. The Google Shills from this opinion are there to stay (maybe they will leave and take $10 million in stock options once they have done their job at the Fed. Cir.)

          1. As long as a patent system is viable, any large established company can be at the mercy of a next-wave small entity who happens to have an exclusive property right.

            While Large Corp will play the patent game, it is in their natural interest to snuff out that game.

            1. it is in their natural interest to snuff out that game.

              And it’s in the natural interest of grifting bttm feeders to exploit loopholes in the patent system to obtain a windfall for themselves. And it’s in their natural interests to whine and complain when those loopholes are closed.

              I’m not aware of any large US company that is advocating that the patent system be dismantled, Billy. Are you? If so, name one.

              We know that your whole universe resolves around the enforcement of j nky computer-implemented patents so all this must seem like a really big deal to you. Thankfully you’re just part of a tiny minority. Unfortunately, it’s a tiny minority of mostly rich entitled white men who think they are god’s gift to humanity so of course we have to listen to your pa thetic whining when any of your precious toys are taken from you. We’re used to that. This is America, after all.

              1. Still waiting to hear the name of that big US company who wants to dismantle the entire patent system, Billy.

                There must be many such companies according to your logic.

                Name one.

              2. Seems to me that these recent 101 cases are injecting more certainty, not less, into the system.

                That’s because they take most of the worst gamesmanship off the table.

                Of course, it’s easy to understand why that might bother you. Stay proud, Billy.

          2. “have killed a number of other search engines include Yahoo”

            Yahoo is only “dead” in so far as it is actually dead (I still use it occasionally especially for 2nd searches) because of the dam layout they use which is annoying as f. As I speak google is busy trying to kill themselves off by making their own layout worse and worse each year.

            When I go to search I want just the results plz k thx. Bare min of other crp.

            1. As I speak google is busy trying to kill themselves off by making their own layout worse and worse each year.

              That’s a common problem when companies or institutions become infected by people obsessed with introducing change to a product or service because “fresh!”, or because “more is better”, or for less shallow but more nefarious reasons.

        2. I’m guessing that Google’s rhetoric will suddenly shift to a “what *other companies* do shouldn’t be patentable, but our software should be” stance.

          Exactly what aspect of figuring out when to start, stop and turn to avoid collision deserves patent protection, David?

          Be specific.

          Because you know that Google is going to need to be specific if they expect to be able to enforce their patents.

          For the record, the Google, Apple and Facebook probably have more j nky computer-implemented patents between them than all their grifting leeches combined.

          It’s time to dredge the swamp.

          Fyi, Google will do just fine, by the way, and their silly fantasy of a world dominated by robot cars isn’t going to see daylight for another century for many reasons having nothing to do with patents.

          1. Fyi, Google will do just fine, by the way, and their silly fantasy of a world dominated by robot cars isn’t going to see daylight for another century for many reasons having nothing to do with patents.

            This. The ability to actually automatically drive a car will come well before the ability to commercially cash in on it. It wouldn’t shock me if the first automated driving car triggers a patent which runs its entire duration before they’re even remotely mass produced.

            Regardless, there are algorithms one could disclose for determining in what instances the car should change course that would be eligible. I seriously doubt they would actually disclose those algorithms though, and then their application should be defeated.

    1. Going on 4 years old but still relevant:

      link to papers.ssrn.com

      [The printed matter doctrine] purports to curtail the patenting of worldly artifacts, but it actually curbs the reach of patent protection into mental representations in the human mind. To support these arguments, this Article offers a course in “Semiotics 101”: a semiotics primer strategically targeted on the principles that prove to be relevant to the section 101 doctrine of patent eligibility.

      This Article also examines one unexpected consequence of taking the printed matter doctrine seriously and adopting a semiotic framework. It reconsiders the patentability of a class of software inventions which are defined here as “computer models.” As a matter of semiotic logic, the routine patentability of newly invented computer models under the contemporary patent eligibility doctrine cannot be reconciled with the categorical unpatentability of mechanical measuring devices with new labels under the printed matter doctrine.

        1. Pretty sure “the law” is changing without Congress’ help, Billy.

          Or haven’t you noticed? Maybe you’re too busy drinking champagne with your imaginary client because you got him a patent on a computer-implemented method of keeping track of his cat’s weight.

          1. Maybe you haven’t noticed which branch of the government has the PROPER authority to write patent law (hint – it is in the constitution)

            You might want to at least pretend this is important for the respect of the rule of law.

          2. >>the law” is changing without Congress’ help

            Isn’t this the core of the complaint MM? That the judges are just making up law with no basis in the Statute and, in fact, their 101 analysis is not compatible with the 1952 Patent Act.

            I don’t think you’d hear anyone complaining (lawyers anyway) if Congress did this. Then at least the law would be apply. But, we complain bitterly because the law is not being applied.

            1. Gee, I wonder why DanH/Leopold has not jumped all over this – it has a constitutional infirmity associated with it, and he likes to notice those types of trees…

    2. Pika, the Prater court summarized the Abrams rules as follows, but one can instantly see, these are the same rules from Hotel Security (2nd Cir., abstract), Guthrie v. Curlett (2nd. Cir.,), and In re Russell (CCPA, printed matter).

      It is quite apparent that the Supreme Court has been following these same rules since Funk Bros. The rules are quite good.

      The rules:

      ” 1. If all the steps of a method claim are purely mental in character, the subject matter thereof is not patentable within the meaning of the patent statutes.

      2. If a method claim embodies both positive and physical steps as well as so-called mental steps, yet the alleged novelty or advance over the art resides in one or more of the so-called mental steps, then the claim is considered unpatentable for the same reason that it would be if all the steps were purely mental in character.

      3. If a method claim embodies both positive and physical steps as well as so-called mental steps, yet the novelty or advance over the art resides in one or more of the positive and physical steps and the so-called mental step or steps are incidental parts of the process which are essential to define, qualify or limit its scope, then the claim is patentable and not subject to the objection contained in 1 and 2 above.”

      1. all… purely…

        Funny then how anthropomorphication comes into play…. (and how parse/dissect is required in order to twist the meaning of the claim in order to reach the desired philosophical end point…(with a healthy helping of the illegitimate version of PON to boot(strap) in…

        incidental… essential…

        Ah yes, the “Gist/Abstract” swordplay which can render any (and all) claims ineligible – how very Duell of you.

  14. So, what is “inventive concept” within the context of 101? Will the Federal Circuit take its job seriously (since the Alice SCT did not) and elucidate us as to how to determine “inventive concept?” On this point, the Federal Circuit’s analysis is so short shrift that it begs the question as to whether due process was given. Additionally, the FC analysis is wrong, i.e. “verifying a chosen set of bingo numbers against a winning set of bingo numbers” is not a generic function of any computer I’ve ever seen, unless every operation of a programmed computer is a generic function of the computer. Is the “inventive concept” analysis the same as a 102/103 analysis? Of course, that would beg the question of the purpose of 102/103 now.

    1. “verifying a chosen set of bingo numbers against a winning set of bingo numbers” is not a ge neric function of any computer I’ve ever seen

      You’ve never seen a computer compare two sets of numbers? Or it it that the numbers only go up to 75?

      1. B-b-b-ut those are B-b-b-ingo numbers!!!!!

        Because computers care about such things.

        The question remains: just how far will the compooter-implementers stick their heads up their behinds in order to pretend that they are “innovating” when they claim j nk like this?

    2. Flyer, do you are do you not understand that a GP digital computer operates on programs without changing the computer hardware one iota. The programs cause the computer to calculate, to perform arithmetic, logic, and to do I/O — standard functionality.

      The meaning of the data it operates on is abstract. The computer is not changed by calling one number a bingo and another number a miss.

      1. Inherency and actual capability changes Ned – you still have failed to account for these – you still have failed to personally understand the Nazomi case.

  15. To be honest, I don’t see how this is that controversial. 101 always seems contentious, but this seems to be a very non-novel system where they got the patent by saying “Plus Bingo”.

    1. “inventive concept” was explicitly removed by Congress in 1952 and replaced with obviousness under 103. Hence the controversy.

      1. Obvious problem or obvious solution? Because, I think that is actually where most of the controversy is in software patents. Some one thinks of a problem, then applies a well known solution to that problem. But like I said, because they are the only people who care about Bingo, no one has recited that element before.

          1. Perhaps because somehow 103 has been narrowed so much that an argument that “well no one has used this with bingo” (just an example) seem to succeed at the patent office, and in the courts.

              1. Well, its either that, or we have to say that 103 (which is the backbone of the patent system, and so by logical extension the entire patent system) is incapable of handling software patents/implementations.

                Typically, the Office, or a Court, will only reject via 103 if each and every element of the Claim is taught by a reference, and they can point to a rationale to combine. This simply does not work in software when basically any function can be ported from program to program, and the hundreds of available solutions can be applied to any problem (I.E. Bingo) no matter how silly it seems.

                Thus the need to demonstrate that someone in the past has taught “managing a game of Bingo.” is nonsensical. Even more nonsensical is needing to point to a motivation to point to a motivation to combine that with an “input and output terminal”. In this particular case (and seemingly every case that gets brought up via 101) what always happens is the Patentee has realized an economic opportunity, then ported solutions to the problem they thought was economically viable to work on.

                The reason 103 isnt working is because in other arts, a person wouldnt typically put a chainsaw onto stent to create a murderous stent-human. However, doing seemingly crazy things like that is the entire point of software!

              2. Excellent post at 14.2.1.1.1.1.1, al.

                The reason 103 does not work is that neither the Office nor the Federal Circuit exclude nonstatutory abstract subject matter when dealing with software.

                They do have authority to do so – a long line of cases stemming back to In re Russell, that relied on Guthrie v. Curlett and that on Hotel Security. See, e.g., King Pharmaceuticals, Inc. v. Eon Labs, Inc., 616 F.3d 1267 (Fed. Cir. 2010).

              3. Sorry al, but you are putting a desired ends in front of the means.

                It is obvious that by “incapable of handling” you mean “not allowing.”

                The strength of portability is to be celebrated – not denied. You show a desire to NOT grant patents, and your choice of words (silly) belie that you belieb in a more Flash of Genius standard that our Congress rejected.

                Doing “crazy things” can very well be the heart of innovation. That is reality that you must accept.

              4. (sigh)

                More of Ned’s purposeful ignorance with Set B printed matter and his refusal to recognize the difference between that Set B printed matter and Set C printed matter…

                Intellectual Dishonesty reigns in the land of Ned-IMHO-Law.

              5. Plus al, you still have not explained this so-called narrowing of 103.

                What narrows the law? How is this different from an objective application of the law? (you will have to put aside your desired end result to see the objective problem with your approach).

              6. 103 (which I assume you know) reads: “if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.”

                With respect to software, the standards that require explicit recitation of all elements and an objective motivation clearly violates that PHOSITA standard. That interpretation (basical MPEP 2144) changes it to a “person having almost no skill in the art” standard.

              7. al – you are whining and pining for some type of Flash of Genius which is simply not what the law states.

                Sorry – but if you want this changed, the proper path is to contact your Congressman.

              8. No. Im arguing for Ordinary Skill in the Art.

                If the level of ordinary skill in an art makes combining even seemingly unrelated things routine, then the standard for patentablity in that art should reflect that reality.

      2. Obvious problem or obvious solution? Because, I think that is actually where most of the controversy is in software patents. Some one thinks of a problem, then applies a well known solution to that problem. But like I said, because they are the only people who care about Bingo, no one has recited that element before.

    2. This one is really showing me the state of the profession – most “professionals” have no idea what the law or concepts are. That also speaks volumes about the general public and how we go to this point.

      1. You know, bad joke, the problem may be that the patent textbooks no longer study such cases as Hotel Security, Rubber Tip Pencil, or In re Russell — cases largely ignored by the Federal Circuit/CCPA, which, lead by you-know-who, were trying to drive all patentability considerations into 102/103/112, and to exclude from these statutes any consideration of patentable subject matter.

        Now that the Supreme Court has restored the law to its foundations, most practitioners are simply lost. It is quite obvious from their posts.

  16. What’s troubling about these cases is the following:

    Particularly, none of these steps require new technology but rather may be “carried out in existing computers long in use.” (quoting Benson).

    My interpretation of this is that nothing that is done on a computer is patentable, assuming no “new” technology is required.

    For instance, you invent a new modulation scheme. You implement the new modulation scheme on a cellphone (a computer). Your implementation can be performed in software, therefore there is no “new” technology that is required. Your modulation scheme is new and unobvious and has clear benefits over current modulation schemes. A machine implementing your modulation scheme is also arguably new, as no machine has previously performed such a modulation scheme.

    Yet you are now locked out of getting a patent, as your modulation scheme can be done by a human using paper and pencil (and likely will be described and defined by — horror of horrors! — mathematics) and is therefore “abstract”. Because your computer needs nothing that’s “new” to implement the “abstract” idea, you’re out of luck with regards to your new and unobvious idea and machine.

    The patent act was not made to prevent a patent from being granted on a claim to a computer for a new and unobvious modulation scheme (or an encryption scheme or a million other ideas), yet that’s the direction being taken by these court cases.

    1. Yet you are now locked out of getting a patent, as your modulation scheme can be done by a human using paper and pencil …

      Really? What exactly are you modulating?

      1. Seriously? You modulate a data stream onto a carrier signal, then demod at the other end. You modulate the carrier signal to encode the data stream into it.

        What a great example PatentBob. It’s clearly giving the anti-patent crowd fits. And I think a lot of it is because they simply don’t understand the technologies that they’re espousing knowledge on.

        1. You modulate a data stream onto a carrier signal, then demod at the other end. You modulate the carrier signal to encode the data stream into it.

          With a pencil and paper?

    2. PatentBob A machine implementing your modulation scheme is also arguably new, as no machine has previously performed such a modulation scheme..

      Do not equate a claim to an old machine endowed with a “new functionality” (by virtue of the applicant saying that the machine has a “new functionality”) with a claim that includes a description of your “new machine” in objective structural terms. The latter remains eligible for patenting and I see no sign of that changing.

      The patent act was not made to prevent a patent from being granted on a claim to a computer for a new and unobvious modulation scheme

      Are you suggesting that the patent act was made so that people could patent “new” computing devices merely be describing a generic computing device and its “new” functionality, wherein that “new” functionality is invariably just another of an infinite species of information processing tasks that the computer was designed to execute?

      It has long seemed to many of us that the patent act was simply co-opted for that purpose with very little consideration given to how it would play out. The only real consideration seemed to be the livelihoods of patent lawyers seeking to “get rich off the Internet.”

      your modulation scheme can be done by a human using paper and pencil and is therefore “abstract”

      Do you agree that a “modulation scheme” that you perform in your mind should be ineligible? Assuming the answer is yes, do you agree that a claim to a scheme performed with a pencil and paper should also be ineligible (in spite of the fact that a new, structurally defined pencil or paper remains perfectly eligible)? Assuming the answer is yes, what is the huge distinction in your mind between saying “doing this with old pencil and paper is ineligible” and saying “doing X on old computer is ineligible”?

      Put another way: in your opinion, was the patent act designed to grant patents on “new” methods of information processing using pencil and paper (or any other old devices known to be handy for information processing)? If so, I’d like to see the evidence for that. The evidence against that proposition would seem to be all around us.

    3. PatentBob A machine implementing your modulation scheme is also arguably new, as no machine has previously performed such a modulation scheme..

      Do not equate a claim to an old machine endowed with a “new functionality” (by virtue of the applicant saying that the machine has a “new functionality”) with a claim that includes a description of your “new machine” in objective structural terms. The latter remains eligible for patenting and I see no sign of that changing.

      The patent act was not made to prevent a patent from being granted on a claim to a computer for a new and unobvious modulation scheme

      Are you suggesting that the patent act was made so that people could patent “new” computing devices merely be describing a ge neric computing device and its “new” functionality, wherein that “new” functionality is invariably just another of an infinite species of information processing tasks that the computer was designed to execute?

      It has long seemed to many of us that the patent act was simply co-opted for that purpose with very little consideration given to how it would play out. The only ge nuine consideration seemed to be the cushy livelihoods of patent lawyers seeking to “get rich off the Internet.”

      your modulation scheme can be done by a human using paper and pencil and is therefore “abstract”

      Do you agree that a “modulation scheme” that you perform in your mind should be ineligible? Assuming the answer is yes, do you agree that a claim to a scheme performed with a pencil and paper should also be ineligible (in spite of the fact that a new, structurally defined pencil or paper remains perfectly eligible)? Assuming the answer is yes, what is the huge distinction in your mind between saying “doing this with old pencil and paper is ineligible” and saying “doing X on old computer is ineligible”?

      Put another way: in your opinion, was the patent act designed to grant patents on “new” methods of information processing using pencil and paper (or any other old devices known to be handy for information processing)? If so, I’d like to see the evidence for that. The evidence against that proposition would seem to be all around us.

      1. It has long seemed to many of us that the patent act was simply co-opted for that purpose with very little consideration given to how it would play out. The only ge nuine consideration seemed to be the cushy livelihoods of patent lawyers seeking to “get rich off the Internet.”

        LOL – more Quinn obsession…

      2. Nice, MM.

        I asked Night the other day whether a poem was patentable, or if not whether any of a poem recited by a particular actress, written on a piece of paper with a particular pen, recited by a robot, or displayed on a computer by software were patentable.

        Naturally, he refused to answer, and soon again began his trash talking against anyone who disagreed with him.

        1. Naturally he refused to engage in the nonsense of “poem” in a patent discussion.

          I showed you why Ned – the Wolfgang Pauli quote of “not even wrong.”

          And yet you persist in what is clearly an intellectually dishonest manner.

          Absolutely shameless.

    4. You are correct. Modulation is merely a mental step. Prior Art: Chapter IV – A New Hope. A disturbance in the Force is, after all, a modulation of the Force. Any attempt to claim a modulation scheme is therefore an attempt to preempt all uses of a natural phenomenon and therefore not a process.

      Force choke me now.

      LLAP

    5. Yet you are now locked out of getting a patent,

      If your claim is “software that performs a modulation scheme” yeah sure you’re going to be locked out.

      If you describe and claim YOUR new modulation scheme, well now you’ve got something concrete don’t you? You have a particular improvement, and not just the concept of improving via a modulation scheme.

      Assuming this guy made a bingo program, it’s not that he didn’t have anything eligible, it’s that his claim was not directed toward his eligible invention.

      You’re confusing “a patent” with “whatever claim scope I want”. You’re still entitled to a patent. The sky is not falling.

      1. This one is really exposing people.

        The point is, you can make an ASIC that does the encoding and broadcasting, or you can do a software encode then broadcast via an ASIC.

        So you’re advocating that you can NEVER get meaningful protection on something that could cut cellphone power usage by as much as 50% and be implemented in an ASIC simply because it COULD also be implemented, in the encoding step, via software.

        1. bja,

          People still are not accepting the baseline fact that software is equivalent to firmware and is equivalent to hardware.

          Until that fact is accepted, there is no reason with these people.

        2. So you’re advocating that you can NEVER get meaningful protection on something that could cut cellphone power usage by as much as 50% and be implemented in an ASIC simply because it COULD also be implemented, in the encoding step, via software.

          No, what I’m saying is that if you make something, and particularly describe what it is in claims, you’re entitled to it. You’re not entitled to more than it.

          But people tend not to do that, they are intentionally vague, often by using functional language, in an attempt to claim the broader genus of their invented species. Those claims are simply invalid.

          If you invent the bow, and you claim the bow by talking about a taut string and curved wood, you’re okay. If you invent the bow and claim by talking about a machine that performs the function of firing a projectile, your claim is also reading on the catapault, the cannon and the gun. That claim is going to fail under either 101 or 112 grounds.

          When we’re talking about computers, it is difficult to have a commercially viable patent, because it’s the nature of software that its easy to tackle the same problem from many different ways. Now if you can describe all those ways, great, take them all. But if you describe one way you can’t use functional language to claim all of the ways, and if you only claim one of the ways someone is going to design around your patent.

          The fact that the proper scope of computer software patents tends to render them not particularly commercially viable is not a bug of patent law, it is a feature. What you call “meaningful” protection is a matter of context – it’s certainly meaningful that your invention is getting the proper scope of protection, but if you’re working in a medium where it’s easy to design around your disclosed solution that “multiple approach” feature of the computer has been a public benefit for quite a while now.

          See here’s the thing, if you develop a modulation scheme that cuts power usage by 50%, the public is still entitled to some other inventors scheme that cuts power consumption by 55%. If your claim covers his totally different scheme, your claim is overbroad. This should strike you as being particularly fair, because the only reason you could get a patent on your 50% power modulation is because the guy who had a 40% power cut modulation wasn’t allowed a scope that would trod on your invention either.

          If we assume this guy had a Bingo program, he could have disclosed the algorithm he used and claimed that algorithm. He chose not to. Instead he chose to disclose and claim only that his machine could achieve certain functionality. That has always drawn a 101 (or equivilent, before it existed) rejection. That’s nothing new at all. The only thing new is the frequency by which applicants seek to claim overbroadly. Then cases like this happen and they freak out. Again, the sky is not falling.

    6. PatentBob, this is a strawman argument and you know it.

      If you are operating on signals, you have ADC’s to convert the signals to digital, the improved modulation calculated using the computer, and then you have DAC’s to convert the digital back to analog signals.

      In the parlance of Diehr, such is modifying a conventional process. The functional relationship of the modulator operating on the physical signal improves the physical signal. Such has been patentable since the Telephone Cases.

      There is a difference between using a computer to do the math in a modulator circuit and using a computer to do the math in a bingo game. For one, a bingo game is nonstatutory (abstract) subject matter.

  17. these claims are directed to the abstract idea of “solv[ing a]
    tampering problem and also minimiz[ing] other security
    risks” during bingo ticket purchases. Appellant’s Br. 10,
    20. This is similar to the abstract ideas of “risk hedging”
    during “consumer transactions,” Bilski,

    That must be the most hand waving I’ve ever seen at the appellant level. (But, I forgot these are not judges but Google Shills.)

    1. And, as was the
      case in Alice, “the function performed by the computer at
      each step of the process is ‘[p]urely conventional.’” Alice,
      134 S. Ct. at 2359 (quoting Mayo, 132 S. Ct. at 1298).

      There is another nasty bit. So, they are going to take it step by step and not as a whole. Not many claims in ANY field would live through that test.

      1. Aren’t all smelly chemicals made with conventional steps. At what level of abstraction? Hey MM, think that one over. At the basic level you are just adding, stirring, heating, etc….. All known.

        1. All known.
          All old.
          Heck, even Ned will tell you that things like electrons, protons and neutrons are not patent eligible – so how can anything be eligible is everything reduces to ineligible building blocks?

          Gee, maybe someone has not yet critically looked at the logic being employed here and checked out how deep down the rabbit hole that logic runs.

    2. We need not, and do not, address whether a
      claimed invention requiring many transactions might tip
      the scales of patent eligibility, as the claims fall far short
      of capturing an invention that necessarily handles “thousands,
      if not millions” of bingo numbers or players.

      That is another nasty bit. It is interesting for a couple of reasons. 1) practice e tip. Add, wherein there are enough of the things so that the Google Shills (judges to the anits like Lemley, Ned, MM) can’t say that it could be done with a human mind. 2) This nasty bit illustrates that they have NO patent law experience. I don’t have to tell the patent attorneys why.

      1. Tough.

        It doesn’t matter how many there are, that just means it might take longer.

        It just shows you have NO mathematical experience.

        1. Me have NO mathematical experience??? Couldn’t be farther from the mark.

          And, “just takes longer.” Well, that isn’t really true now is it. First, there is the problem that “takes longer” may be longer than a person lives. Second, the problem may be that the calculation has a fixed time in which it must be done. For example, a guidance calculation on a rocket. It can’t wait. There are many, many other examples where the calculation time enables many things that would not be possible without doing the calculation faster.

          And, I’ll say it again. Information processing is like all the other types of inventions. Hindsight makes everything seem easy. And the character of how things are done changes because you have the machine.

          1. NWPA,

            jesse is a slashdot transplant with ZERO understanding of law and just about as much understanding of engineering.

            In fact (as much as 6 would like to project elsewhere), he is likely a belieber of the “everything is Maths” philosophy.

            1. Not everything.

              Math is an abstract activity.

              Physics is not. Engineering is not.

              Computers can do nothing but compute – that is math. You can engineer a new processor, or memory – and get a patent on it – those are compositions of matter.

              But carrying out math is not and should not be patentable.

              1. (come on jesse – the difference in the context of patent law….)

                Oh wait – you know jacksh1t about patent law.

                Well then, you may now return to slashdot. Thank you.

              2. You missed the point that I know BOTH about math and law.

                And I know that you know jack sh1t about the legal implications of applied math.

                But thanks for playing in an arena that you are totally clueless in.

          2. It doesn’t matter how long it takes.

            There are problems in math that have taken several hundred years before a solution was found…

            It is still math.

  18. The court constantly notes that particular methods are not claimed:

    Planet Bingo argues that the patents recite “significantly more” than an abstract idea because the invention includes “complex computer code with three distinct subparts.” Appellant’s Br. 33, 38. We disagree. The ’646 and ’045 patents do not claim the “accounting program,” “ticket program,” and “verification program” that Planet Bingo identifies in its briefs. Instead, the claims recite a program that is used for the generic functions of storing, retrieving, and verifying a chosen set of bingo numbers against a winning set of bingo numbers.

    Planet Bingo argues that “in real world use, literally thousands, if not millions of preselected Bingo numbers are handled by the claimed computer program,” making it impossible for the invention to be carried out manually. Appellant’s Reply Br. 14. But the claimed inventions do not require as much. At most, the claims require “two sets of Bingo numbers,” “a player,” and “a manager.” ’646 patent col. 8 ll. 54–55, col. 9 l. 17; see also ’045 patent col. 9 ll. 5–6. We need not, and do not, address whether a claimed invention requiring many transactions might tip the scales of patent eligibility, as the claims fall far short of capturing an invention that necessarily handles “thousands, if not millions” of bingo numbers or players.

    You’re being told what to do, people. Of course, nobody wants to limit the claims to the only advancement they could possibly make (namely that they could disclose a complex system that would allow hundreds of people to play at once) because that would be a scope that’s not commercially valuable for them.

    Patentees don’t want to describe their invention to exclude others from making it. They want to monopolize the entirety of computer bingo. Typical “processor + functionally described code” claiming that isn’t and has never been allowed. Morse continues to be the law. Inventions are defined by their structure, not by the end result of their use. Nothing to see here, move along.

    1. LOL – tell me more of this Morse and how ‘oldbox’ – with no changes somehow (magically) covers all improvements to ‘oldbox’….

      1. LOL – tell me more of this Morse and how ‘oldbox’ – with no changes somehow (magically) covers all improvements to ‘oldbox’….

        Is the claim limited to a particular way of improving oldbox? Or is it a statement that oldbox can be improved to achieve new functionality?

        The former is a concrete invention. The latter is a wishlist. Morse got his concrete invention, and was denied the rest. This guy didn’t claim a concrete invention, so he got nothing.

          1. tell me more of this Morse and how ‘oldbox’ – with no changes somehow (magically) covers all improvements to ‘oldbox’

            I didn’t answer because its not germane to my argument. It’s not a question of whether it technically meets the bounds of 101 (nor is that what I argued), because the constitutional scope of eligible subject matter is smaller than the scope of 101.

            Congress lacks the authority to award a patent to someone who is not the inventor (something that may come up due to the AIA in front of the Supreme Court faster than you think). Congress lacks the authority to award a patent on something other than inventions or discoveries. Congress lacks the authority to provide patents in a manner that discourages innovation.

            A patent on an overbroad scope is unconstitutional. It discourages research in the area by third parties and removes the incentive for further disclosure within the overbroad scope by the inventor. When applicant invents one machine but claims any other machine that achieves a similar effect, it denies the public all disclosures about better ways to do it.

            There’s a very simple way to solve the problem – claim what you create, not what you create + anything else. If it’s not commercially viable, be better at inventing.

    2. Planet Bingo argues that the patents recite “significantly more” than an abstract idea because the invention includes “complex computer code with three distinct subparts.” Appellant’s Br. 33, 38. We disagree.

      Ah yes, we’ve seen this gambit before. “Look at our giant specification and all that complex compooter stuff! Fifty flow charts! It took five years and a team of Stanford grads to program our product and work out all the bugs!”

      Nobody could have predicted it would end this way.

      1. Yes we know MM. To you and all the ignorant dogs all computer inventions are just easy. As J. Stevens said you just take them to a boy and tell him to program it.

        Gee, in complete contravention of reality as evidenced by the fact that there are more people with IQs over 150 working on information processing methods than any other type of invention. And, yet, scientist are consistently saying the progress is slow.

        But, to ole MM, Milly that is, it is all easy as all you do is say look at what they did. That was easy.

        1. J. Stevens said you just take them to a boy and tell him to program it.

          That’s funny because I’m pretty sure you told everyone here that yourself at some point until you realized you were shooting yourself in the face.

          That was the stock response to why functional claiming at the point of novely is perfectly kosher for the compooter-implementers: once you describe the function, the skilled artisan knows the structure.

          Then we asked you to tell us the structure. Then you pretended that the function is the structure. Round and round and round.

          The jig is up, friend. The door is closing, slowly but surely.

          And it was all predicted, and quite predictable.

          I must say the screeching and howling is even worse than I thought it would be. Even I underestimated the sense of entitlement and the immaturity of the grifting classes in that regard. I won’t make that mistake again. ;)

          1. That was the stock response to why functional claiming at the point of novely is perfectly kosher for the compooter-implementers: once you describe the function, the skilled artisan knows the structure.

            MM, no. That is wrong. I am not going to explain to you AGAIN and AGAIN the right answer.

            1. nherency destroys your position Malcolm.

              No, it doesn’t. I’m not making an anticipation argument.

              oldbox’ must be changed in order to have new capabilities

              That’s nice. Recite the changes in objective structural terms like everybody else and you’ll be golden.

              [shrugs]

        2. And, yet, scientist are consistently saying the progress is slow.

          And yet, patents are being granted faster than ever. Conclusion 1: Someone is wrong here. Conclusion 2: Nobody is wrong here, it’s just that patents in information processing inhibit innovation. I’mma go for 1, but let you rant and rave about 2 a bit.

          To you and all the ignorant dogs all computer inventions are just easy.

          I wasn’t aware a patent was a blue ribbon for trying something really hard.

        3. No… Inventing a new computer is NOT easy. Just look at all the difficulty with inventing a quantum computer…

          And coming up with mathematical algorithms is not necessarily easy either. Some of them have taken hundreds of years. Some still haven’t been worked out.

          But a finite state machine is just that – finite. Algorithms for finite state machines are also limited – and all of them are within the creation of that finite state machine. What gets tricky is identifying the useful ones.

          1. coming up with mathematical algorithms is not necessarily easy either. Some of them have taken hundreds of years. Some still haven’t been worked out.

            And yet no patent system on earth allows one to patent mathematical algorithms.

            Gee. I wonder why?

              1. because a person who does not understand patent law is going to tell you when patent law is broken….

                You don’t know logic very well either, do you jesse?

          2. Inventing a new computer is NOT easy

            Depends on what you consider a “new computer.”

            If you use the definition espoused by most software patenting proponents, I invented several thousand “new computers” in the past couple days. A couple new ones in the past few minutes, in fact.

            1. Yea, I know.

              I imagine these are same ones that think a light that is on is a different light than one that is off, thus they should be granted a patent for two lights… one on, one off.

              1. jesse – you keep on posting and keep on showing that you have absolutely no idea of what you are talking about in the legal arena.

                A power on/off switch….

                Way too funny.

  19. TARANTO, BRYSON, and HUGHES

    Taranto and Hughes are two of the latest with no science background and no background in patent law.

    Simply stated this opinion is filth.

    1. These 101 opinions are basically ’cause I don’t like you and the SCOTUS has said that judges can invalidate you if they don’t like you. Seriously, does anyone believe that there is anything more to this?

      This is not the application of law and it does not follow the rule of law.

      1. As we have seen with Vringo and now this case, Alice gives judges that live in Washington D.C. the power to throw out a patent using their own judgement on whether or not they like the patent, regardless of any other legal rulings or arguments made up until the point that it reached their desk.

        What I want to know is, does the Supreme Court consider this a bug or a feature? Thousands of skulking beltway area lobbyists would also like to know.

        1. Brent, I think that is exactly right. Doesn’t even matter what one skilled in the art thinks. The judges need refer to nothing. Just blab out some crxp and invalidate.

          I think the SCOTUS did that on purpose. It was a power grab taking it back from the 1952 Patent Act.

        2. Alice gives judges that live in Washington D.C. the power to throw out a patent using their own judgement on whether or not they like the patent, regardless of any other legal rulings or arguments made up until the point that it reached their desk.

          You guys whined the same exact cr p when Prometheus came out.

          You’re wrong. Your arguments lost because they stank, and because if the system keeps coddling you the way you want to be coddled, the system ceases to function for anyone’s benefit except yours.

          Grow the up already.

    2. no science background

      Why do you need a science background to understand that computers can receive, process, store and transmit any information they are programmed to process?

      That’s like saying that someone needs a science background to understand that a pencil can write both numbers and letters on a piece of paper.

      1. That’s like saying that someone needs a science background to understand that a pencil can write both numbers and letters on a piece of paper.
        I could say that one doesn’t need a science background to understand that taking aspirin can relieve some pain. However, understanding how and why it happens does require a science background.

      2. Why do you need a science background to understand that electrons, protons and neutrons can be configured?

        After all, no one has actually invented a new way of putting these very old (and patent ineligible) items together using a different manner of putting them together, have they? All that you have is different configurations – hmmm, just like the different configurations of that machine called a computer.

        Tell me again, how – without ANY change – does ‘oldbox’ without a certain capability come to have a new capability?

        1. Why do you need a science background to understand that electrons, protons and neutrons can be configured?

          You don’t.

          no one has actually invented a new way of putting these very old (and patent ineligible) items together using a different manner of putting them together,

          Do you actually read the drivel that you type? I told you this was going to be a very difficult year for you.

          Let me know when the PTO and the courts start rubber-stamping claims to compositions “configured to cure cancer, wherein the cancer is discovered on a Monday in Toledo” and I’ll start paying attention to your loonatic analogies.

          1. MM how would you know? You consistently write the most ignorant nonsense on this board. You aren’t educated.

            1. Night, let me assure you that MM is the most serious regular poster here.

              There is a laughingstock or two, however. You happen to be one of the two. Your style of posting, dealing in insults, libel and slander, coupled with a complete absence of common sense or logic, is what distinguishes your posts.

              You really, Night, need to step back and take stock.

          2. Nice non-sequitur with rubber stamping – especially as I have long held that any type of rubber stamping (either Reject-Reject-Reject or Accept-Accept-Accept) is bad.

            But what the conversation actually entails – you just don’t care, do you?

    3. Night, “Simply stated this opinion is filth.”

      I, and every other person on this planet, would wish you would grow up and use the language of an adult.

  20. This is an important passage for would-be defendants or anyone interested in tanking a typical claim to computer-implemented j nk:

    Planet Bingo argues that “in real world use, literally
    thousands, if not millions of preselected Bingo numbers
    are handled by the claimed computer program,” making it
    impossible for the invention to be carried out manually. But the claimed inventions do not require as much. At most, the claims require “two sets of Bingo numbers,” “a player,” and “a manager.”

    This is nothing new but just an important reminder: when looking at the eligiblity of a claim, focus on the minimum requirements of the claim and do not be confused or distracted by the dust in the specification or in the claim itself beyond those minimum requirements for infringement. This is especially true in claims that recite “if-then” algorithms. If you live by the function, then you die by the function.

    The proponents of computer-implemting j nk patents have been playing numerous transparent games with the PTO and the courts for many, many years. At some point, unfortunately (for them), they forgot that they were playing games.

    1. You seem not to remember many of us telling you (repeatedly) that the claim are to be understood by a person having ordinary skill in the art to which the invention pertains, after having been informed by the specification.

      Maybe you just do not understand what this means.

    2. This is especially true in claims that recite “if-then” algorithms.

      Do you have some legally-founded problem with such? Are you not aware that such can operate completely outside of the mind of man? Are you not aware that any non-binary mechanism can be adapted to such algorithmic configuration?

      Do you have any clue at all as to what you are going on about?

      1. Do you have any clue at all as to what you are going on about?

        Yes I certainly do. So did the defendants in this case.

        Pay attention and maybe you’ll learn something.

          1. Math is a written language – you can copyright that written expression.

            Every program is a written expression. Either directly human readable, or readable by a machine – which is also human readable (with a good bit of effort).

            And no, I’m not pretending about law. I do know a fair amount of math, and more computer science.

              1. LOL – no jesse, the difference between you and I is that I know BOTH mathematics and patent law.

                You on the other hand, well, your lack of knowledge is evident.

    3. But the claimed inventions do not require as much. At most, the claims require “two sets of Bingo numbers,” “a player,” and “a manager.”
      So … would my claim pass muster if I include the limitation “wherein, the steps are impossible to perform by pen and paper”?

      they forgot that they were playing games
      When a claim recites the steps being performed by a computer and the Federal Circuit argues “they are ‘mental steps which can be carried out by a human using pen and paper,'” who is playing games now?

      1. would my claim pass muster if I include the limitation “wherein, the steps are impossible to perform by pen and paper”?

        Yes, please run with that! Also, please remember to put in the limitation “wherein the claim is non-obvious and enabled.”

        When a claim recites the steps being performed by a computer and the Federal Circuit argues “they are ‘mental steps which can be carried out by a human using pen and paper,’” who is playing games now?

        You.

    1. Come on MM. Bingo is a very old but still popular game. What’s wrong with giving someone a patent on a system that makes the game more enjoyable and easier to manage? When patented, the advance only kills competition to the extent that it is significant enough transformation of the game to warrant an entire shift of the consumer base.

      1. What’s wrong with giving someone a patent on a system that makes the game more enjoyable and easier to manage?

        Assuming that one believes that “games” are part of the “useful arts” and worthy of patenting in the first place (a perfectly questionable assumption, btw), the short answer is “nothing is per se wrong with that.”

        But that’s not what this case is about, as I’m sure you understand.

        Instead of “bingo” being “managed” by this computerized system, it could be any other kind of information related to any other kind of human or machine activity. At the level of abstraction of the functionalities claimed here, there is literally nothing that a computerized system can’t “manage” to make it “easier” for someone. And that’s been a known fact for eons. Why should someone get a patent merely for recognizing that fact for the umpteenth time? That’s the kind of nonsense that has turned the patent system into a broken joke.

        1. It’s been a known fact for eons that old constituent elements can be put together using the same old methods of putting things together and come up with different end items.

          Gee, surprise, the same logic applies to computers.

          1. the same logic applies to computers.

            That’s nice.

            It’s also true that you don’t get a patent on everything you dream up just because “it’s different”. That applies to computers especially because computers process information, and information is ineligible for patenting no matter how new and useful that information is.

            This really isn’t that difficult to understand. It might be painful to your wallet if you are deeply invested in patents directed to computer-implemented j nk. But it’s not terribly difficult to follow the reasoning here, nor is it difficult to understand how we got to this point.

            And there’s more to come. That’s the best part.

        2. there is literally nothing that a computerized system can’t “manage” to make it “easier” for someone
          Except that a computerized system is incapable of inherently doing so. Instead, one requires the innovation and ingenuity of a person. When innovation and ingenuity is applied to real-world problems, it should be rewarded by the patent system.

          If someone uses a welder (i.e., a tool) to create something that solves a real world problem, there is little doubt that the result would patentable subject matter. However, if someone uses a computer (i.e., another type of tool) to create something (i.e., an improved computer) that solves a real world problem, there is now considerable doubt as to whether the result is patentable subject matter.

          What policy justifies this disparate treatment of these two different types of tools? Just an important, what part of 35 USC 101 justifies this disparate treatment of these two different types of tools?

          If there are sufficient policy reasons to justify this disparate treatment, this should be performed by Congress — not the Courts. 40 years after Benson, neither the USPTO nor the public can say, with great certainty, what constitutes an “abstract idea.” Moreover, with SCOTUS essentially saying ‘don’t look to us for guidance,’ the most important factor in determining in whether or not you are a winner or loser is who is on the panel at the Federal Circuit.

          BTW — While some may say they have great certainty — this is not born out by the facts in which patents like the one at issue here continue to issue every Tuesday.

          1. Yawn: If someone uses a welder (i.e., a tool) to create something that solves a real world problem, there is little doubt that the result would patentable subject matter.

            As always, it depends on the claim. Most people who create new objects using welding methods together don’t distinguish those objects from prior art objects based on the “new functionality” of those objects. Moreover, if the “new functionality” of the object is utterly predictable the claim has close zero chance of getting out of the PTO. This is why we don’t see hundreds of thousands of functionally claimed “welded objects” flowing out of the patent office every year. And we never did.

            if someone uses a computer (i.e., another type of tool) to create something (i.e., an improved computer) that solves a real world problem, there is now considerable doubt as to whether the result is patentable subject matter.

            Depends on the claims. Try claiming your improved computer in object structural terms that distinguish your improved computer from all the old computers in the prior art. You’ll have no problem with eligibility then.

            What policy justifies this disparate treatment of these two different types of tools?

            The “disparate treatment” was the treatment that was given to j nky information processing claims.

            You tell us what the policy reason was for that. Was it to make a class of whining, entitled, b ttom feeding attorneys like yourself who couldn’t argue their way out of a cardboard box? If so, that would explain a lot.

              1. Why “object structural terms”? No support for that requirement in 35 USC 112.

                I have repeatedly asked Malcolm for the proper legal foundation for his canard.

                Funny that – he has never complied.

                (this malady also greatly affects Random Examiner)

            1. Most people who create new objects using welding methods together don’t distinguish those objects from prior art objects based on the “new functionality” of those objects.
              Sometimes. I suspect I’ve drafted 10-100x more mechanical claims than you. If you’ve created “new functionality,” then you can claim it. Regardless, functionality can be easily claimed in method claims.

              Try claiming your improved computer in object structural terms that distinguish your improved computer from all the old computers in the prior art.
              Why “object structural terms”? No support for that requirement in 35 USC 112.

              The “disparate treatment” was the treatment that was given to … information processing claims.
              No support in the statute for that. Again, what does Congress say on the matter?

              You tell us what the policy reason was for that.
              As I suspected, no policy reason — just a bunch of judges thinking they know best.

          2. patents like the one at issue here continue to issue every Tuesday.

            WOW! Super impressive stuff, Yawn! Gotta love the kool-aid swillin’ “attorneys” who cite this kind of evidence.

            There’s an old saying that there’s a s ucker born every minute. And some patent attorneys call them “clients.” People like Yawn, apparently (tho’ he’s probably just an agent; maybe a grad of some third tier shirthole). You can just hear Yawn telling one of his potential clients: “Of course you can patent that! Look, a patent like the one you are seeking just granted this Tuesday!!”

            Try to enforce one of those patents against someone with an attorney who isn’t braindead.

            1. Try to enforce one of those patents against someone with an attorney who isn’t braindead.
              These patents are enforced, licensed, and bought/sold every day. Your comments are ample evidence that that the depth of your ignorance regarding these matters is deep.

      2. I agree with Dennis, The recent cases stress pre-emption (“We have described the concern that drives this exclusionary principle as one of pre-emption.”). Is there really a grave preemption concern regarding the duplication of this system? VKGS and Planet Bingo originally had some sort of license/relationship, but that went sour and so VKGS just went and knocked off the system. Is this really a fair result that PB’s patents (that they acquired from a smaller company) are now simply invalid? Isn’t this why our patent laws exist? There are probably 100,000 other patents with this same structure.

        Does this decision enhance innovation or hurt it?

        Obama appointed two of these judges. Obama’s solution to the patent troll problem is simply to invalidate software patents altogether. Maybe he doesn’t realize there are real inventors out there getting their property taken away from them.

        1. There are probably 100,000 other patents with this same structure.

          Yes there are.

          And if you try to enforce any of them against a defendant with a decent attorney who wants to fight it, you can kiss the patent goodbye.

          Don’t forget the pending applications either — especially the ones in the “appeal backlog.”

          1. Don’t forget the pending applications either — especially the ones in the “appeal backlog.”
            LOL. I just got back an appeal on an application directed to information processing. I know you would cry and moan for days if you saw the claims. The result? All rejections reversed.

              1. Was there a 101 rejection originally?
                It went up to appeal with the usual 101 kryptonite language. The Board apparently thought it was sufficient as well.

            1. I just got back an appeal on an application directed to information processing. I know you would cry and moan for days if you saw the claims. The result? All rejections reversed.

              You must feel like a big man.

              LOL.

        2. “Is there really a grave preemption concern regarding the duplication of this system?”

          I’m not sure because I missed the part in the decision where they laid out specifically what the abstract idea at issue was.

        3. patent leather, if they copied the programs, there is a legal remedy — in copyright.

          People competing can do so so long as they do not copy the software. They have to write that code themselves or take out a license.

            1. Anon,

              As you well know, software source code and user interfaces have expressive elements, which can be copyrighted (just as expressions of math can be).

              1. Anon,

                Please stop playing games with semantics. A programmer is creating an expression of math while writing the software source code, just as the author is creating an expression of math while writing the textbook.

                You keep wanting to conflate the multiple meanings when someone refers to “software”: the source code vs. its translation into data for the computer to process.

              2. Anon,

                Well, if you must make up your own arbitrary rules for the discussion, I guess you might as well “stack the deck” in your own favor.

                Calculus is math, no? A calculus textbook is copyrightable, no? So, calculus is both math and expression.

                Substitute “lambda calculus” for “calculus” in that query. No changes.

                All software is reducible to lambda calculus. Connect the dots, Anon.

              3. Again you resort to claiming that I “am making up my own rules” when no such thing is going on.

                Sorry Dobu – you are in a legal forum and those are the rules that govern (and not because I say so).

                We’ve been on this silly merry-go-round before.

                If you want software to be math (lamda or otherwise – then no copyright for you). Um, you do know the rules of copyright, right?

              4. so you are probably one of those everything is Maths folks…

                You should probably note that to 6. For some odd reason he thinks that such is my belieb system when all I did was point out to him the source of that belieb system.

              5. Okay, let’s put this in Anon-speak, then:

                Software is math not because I say so, but because it is a FACT. Your attempts to apply your arbitrary restrictions as to which subsets of math can or can not enjoy copyright protection for expressions that communicate concepts of chosen mathematical subsets does not change the FACT that such protectable expression exists for those subsets (including software).

                And no, I find the whole “the universe is math” hypothesis rather silly.

              6. …anon-speak..

                You are STILL making the mistake of thinking that I am making up the rules for our dialogue – which just goes to show that you have no concept of the legal system.

                This is the same mistake you made previously in your assertions that facts are facts BECAUSE anon said so.

                You really need to get beyond this limitation of yours.

                See link to en.wikipedia.org

          1. C’mon Ned, that’s not the point. We both know that only a dope gets busted for copyright infringement these days. It’s easy to avoid. I’m assuming VKGS had the software suite reprogrammed, leaving PB with no other recourse. I understand Benson, Bilski, Mayo, Alice, etc. and the pre-emption concerns therein. But “pre-emption” was not even mentioned in this decision. PB is not a troll or grifter but a real company utilizing their niche technology and understandably expected it to be patent protected. Invalidating their patent seems like a shocking recourse to me.

            1. Patent Leather, if the competitor developed his own software, he should be entitled to compete.

              On preemption, all that means is that the nonstatutory subject matter must be applied to some specific and otherwise eligible process or machine that is otherwise eligible. See, e.g., Flook.

              But playing bingo is nonstatory. A bingo card that varies from other cards is not patentable as it varies in its printing or information content.

              Everything that is in the claims that is new is nonstatutory. The recital of conventional, but statutory subject matter does not transform the claim as a whole into something patentable because the nonstatutory subject matter must be given no weight.

              1. if the competitor developed his own software, he should be entitled to compete.

                Because DOE has no meaning here.

                /eye roll

                (and nice strawman with the bingo card varying from other bingo cards – no one is arguing otherwise, and that is clearly off point)

              2. “…because the nonstatutory subject matter must be given no weight.”

                Ned, of course that is the strict test from Flook which was cabined in Diehr. If it was resurrected in a later Supreme Court case, please cite me the passage. If that is really the test in Alice, then there would be no need for prong 1 of the Alice test, would there? Just skip to prong 2 to see what is non-conventional hardware.

                Interestingly, in my previous hypothetical you agreed it was statutory but the only novel element of the claim was the algorithm. Why the discrepancy?

                I don’t agree that VKGS is fairly”competing”, here they ripped off their former licensor’s software. I bet their lawyer told them, “since Obama is stacking the Fed Circuit with anti-software judges, you’ve got a good chance to get out of jail free here” and so they did. We are headed down the road to end up like China.

              3. Ned likes to ignore inconvenient points of law like Flook and Benson being cabined by Diehr, as explained in Bilski.

                It’s part of his Ned-IMHO-Law universe that he gets to play the Red Queen and pick and choose, parse and over-read in order to make his dreams come true.

      3. When patented, the advance only kills competition to the extent that it is significant enough transformation of the game to warrant an entire shift of the consumer base.

        There’s no “advance” or “transformation” there. Physical players routinely keep cards between rounds, they would expect to do so in computers too. Unless the transformation you mean is playing on a computer to begin with. In which case the question becomes why should one person who writes one program get all possible programs that do the same thing? The rule that applies to Bingo would necessarily apply to databasing, word processing, etc. How would you like to have only one possible choice for word processing? Or web browsing?

      4. Still doesn’t kill innovation. A further innovation could be devised, and if filed today, you’d have several years after the expiration of this patent during which you were the sole patent holder in the market space. That’s the innovation incentive.

  21. Amazing to see people downthread pretending to be surprised or, worse, pretending that this is somehow the “wrong” result.

    It’s not. It’s the right result and it’s perfectly predictable and there is much more to come. Eventually the computer-implementers will grow up and understand that the patent system wasn’t intended to protect information-processing claims that are nothing more than elementary functions tacked onto an old programmable computer that was created (long ago) for the sole purpose of carrying out those functions.

    Of course, Dennis can’t help but throw some gas on the campfire with this kind of cheekiness:

    the Federal Court found that – yes – those building blocks of scientific inquiry are being inhibited by Planet Bingo’s bingo software patent.

    The “building blocks”, of course, would be the contributions to progress in the useful art of computing machines which are made by describing the distinct, objective structural improvements made to those machines. No such description appears in the claims at issue here. Not even close. There was not even an attempt here to make such a contribution. And yet somehow a tiny segment of the public believes that we must reward them with a patent because they told everyone that a computer can be “configured to” (try to believe it) remember and store information. Yes, even information about some silly game that we learned to play when we were five.

    I’ve got news for the confused hand-wringers: computer can receive, store process, and transmit any kind of information that they are configured to receive, store process, and transmit. Not just Bingo information, but bank account information, available real estate information, Johnny’s credit card information, medical diagnosis information, rocket science information, settlement agreement information, weather information, traffic information… the list goes on (let me know if you need more examples).

    I’ve been telling you this for years because it’s an important fact that for mysterious reasons is mostly ignored during Examination and during litigation of computer-implemented j nk. And it’s a very damaging fact for a great deal of the computer-implemented j nk that’s out there.

    More to come! The swamp is just beginning to be dredged.

    1. Thanks for this post and I suspect that your predictions are accurate.

      What I don’t understand is why the Supreme Court did not apply this same information-analysis to the cDNA claims in Myriad.

      1. Dennis: What I don’t understand is why the Supreme Court did not apply this same information-analysis to the cDNA claims in Myriad.

        I think, ultimately, we should be very glad that the Supremes didn’t use the same “information-analysis” to address Myriad’s cDNA claims.

        The reason is that Myriad’s cDNA claims were composition claims that did not protect information but rather protected a polynucleotide (or a class thereof) with an objective, distinct structure — a structure that was disclosed in the specification and submitted to the PTO in a sequence listing.

        Remember: any composition can be argued to have information content. All one needs to do is layer the abstraction on top of the composition, e.g., “A bus means yes; a car means no.” Those are the sorts of abstractions that properly lie outside the patent system. In contrast, a claim that describes a new gear by reciting the gear’s distinct objective structural features is not ineligible just because the gear’s structure “carries information” about the functionality of the gear.

        Hope this helps. I seem to recall Collins getting into this distinction in that 101 article he published a few years back.

        1. Might I add, Dennis and MM, that a composition of matter is statutory.

          The reason the claims to the DNA per se were ineligible was that the were identically found in nature and thus were old. Myriad actually held this.

          cDNA is not identically found in nature and is statutorily eligible.

            1. Dennis, I think the premise is wrong. The Myriad court held the claims to DNA having the same sequence ineligible because the composition claimed was old. cDNA, being manmade, was not old within the meaning of 101.

              “We must … determine whether Myriad’s patents claim any “new and useful … composition of matter,” § 101, or instead claim naturally occurring phenomena.” Myriad, 133 S.Ct. 2107 at 2116.

              In contrast, “abstract ideas” are non statutory. They are not patentable subject matter at all — unlike compositions. In other posts here, I posted the Abrams rules that apply the same rules as Hotel Security, etc., and also Funk Bros., Benson, Prometheus and Alice where claims that mixed both the statutory and the nonstatutory. They are an excellent framework:

              ” 1. If all the steps of a method claim are purely mental in character, the subject matter thereof is not patentable within the meaning of the patent statutes.

              2. If a method claim embodies both positive and physical steps as well as so-called mental steps, yet the alleged novelty or advance over the art resides in one or more of the so-called mental steps, then the claim is considered unpatentable for the same reason that it would be if all the steps were purely mental in character.

              3. If a method claim embodies both positive and physical steps as well as so-called mental steps, yet the novelty or advance over the art resides in one or more of the positive and physical steps and the so-called mental step or steps are incidental parts of the process which are essential to define, qualify or limit its scope, then the claim is patentable and not subject to the objection contained in 1 and 2 above.”

              Application of Prater, 415 F.2d 1378, 1386 (C.C.P.A. 1968).

              1. Dennis, I think the premise is wrong

                LOL – No Ned – you are wrong.

                Once again Ned – is the electron statutory material? the proton? neutron?

                Why are you afraid to answer?

                (and then kindly move the goalposts back re “all… purely…” – thanks)

      2. “Amazing to see people downthread pretending to be surprised or, worse, pretending that this is somehow the “wrong” result.”

        As a downthread person, I would like to point out that I have not commented on the rightness or wrongness of the “result”.

        I have commented on the absurdity of the reasoning upon which the result is based.

      3. Thanks for this post and I suspect that your predictions are accurate.
        The owner of the blog “thanking” the biggest blog troll with the worst attitude, the worst decorum, and the foulest mouth. — not the first time either. Disgraceful.

        No wonder MM believes he has carte blanche.

    2. …and it has been like forever that electrons, protons and neutrons can be configured….

      That logic has no stopping point.

      1. If the claim was directed to “electrons, protons and neutrons configured to play Bingo” that claim would be invalid too.

    3. I’ve got news for the confused hand-wringers: wood, cloth and rope can provide structural support, harness the wind, and pull and twist any kind of structure that they are configured to support, harness, and twist. Not just in sail boats, but windmills, available kites, Johnny’s sail surf board, wind chimes, mobile sculptures, zeppelins, weather veins, and air planes… the list goes on (let me know if you need more examples).

  22. bad joke, I call bull.

    It was Judge Rich and the CCPA/Federal Circuit who refused to follow the law. Rich’s overruling of Hotel Security happened how long ago. That might have been the single worst judicial decision in history.

    1. The Alice decision is bad because it has no guidance whatsoever. It’s totally seat of the pants. There’s a critical word “abstract” that by definition has no definition, and the Supremes refused to limit it in any way. That’s at the root of all of this.

      1. Bad Joke, it is quite obvious to anyone who has read the Hotel Security and is progeny that the Supreme Court is following those cases.

        Breyer was with Stevens in Bilski. The point of the Stevens concurrence in Bilski was to restore Hotel Security and reverse State Street Bank. Breyer wrote Prometheus. The analysis of Prometheus basically tracks that of Hotel Security – if the novel subject matter is not statutory, and if the statutory subject matter is old, the claim as a whole is not patentable. The prior cases operated on novelty as the concerned statute, but he gave no weight to the nonstatutory subject matter in determining “novelty.”

        The analysis of Supreme Court today is exactly the same as that of Hotel Security. If the novel subject matter is nonstatutory and the statutory subject matter is old, the result is highly predictable.

    2. Ned, This is a somewhat minor point, but the Hotel Security case was a Second Circuit decision. Hotel Sec. Checking Co. v. Lorraine Co., 160 F. 467, 469 (2d Cir. 1908) (“A system of transacting business disconnected from the means for carrying out the system is not, within the most liberal interpretation of the term, an art.”) While Judge Rich and the Federal Circuit did reject the reasoning of that case in State Street, it was not overruled.

      The decision is interesting, but its bright-line rule against lines on paper being patentable is likely inconsistent with Bilski.

      1. Ned has zero sense of how to appropriately apply reasoning to case law decisions.

        This is (and has been) shown repeatedly in his “versions” of case law that parse out particular phrases (as Congress noted in the 1952 Act), and his very selective treatment of cases such as Benson, Flook and <Bilski in the omission of sections of those cases that go against his jihad.

        I have invited him many times now to take valid counterpoints into consideration and he steadfastly refuses to do so.

        His posts can only be taken as (a rather weak form of) propaganda for his third party interests.

      2. Dennis, true about “overrule.”

        But the analysis is what is important. If the novel subject matter is non statutory and not integrated, the claim as a whole is not patentable.

        Breyer was with Stevens in Bilski where Steven tried to restore Hotel Security and its progeny as a mode of analysis. It is not an accident that Breyer explained Prometheus in the same way as did Hotel Security – but with a law of nature being nonstatutory.

        Alice has now extended Prometheus to all categories of ineligible subject matter, including abstract, which was the basis for Hotel Security observing the subject matter there to be nonstatutory.

        We should not puzzle too much about the so-called ambiguity of Alice. If the novel subject matter is non statutory and not integrated, the claim is not patentable.

        As to the statutes, 101 requires an admission or the equivalent that the statutory subject matter be old. But in 102/103, the ineligible non integrated subject matter is given no weight. There is a recent Federal Circuit case on point – showing that Hotel Security is still being following in the Federal Circuit albeit they do no seem to know of the origin of the rule.

          1. LOL … King was just applying Ngai, which was a straight forward printed matter case.

            Although these “printed matter” cases involved the addition of printed matter, such as written instructions, to a known product, we see no principled reason for limiting their reasoning to that specific factual context. See In re Ngai, 367 F.3d at 1338-39; In re Gulack, 703 F.2d at 1385-87. Rather, we believe that the rationale underlying these cases extends to the situation presented in this case, wherein an instructional limitation is added to a method, as opposed to a product, known in the art. Thus, the relevant inquiry here is whether the additional instructional limitation of claim 21 has a “new and unobvious functional relationship” with the known method of administering metaxalone with food. See In re Ngai, 367 F.3d at 1338 (quoting In re Gulack, 703 F.2d at 1386).

            Ned is like one of those ghost hunters on TV. Every creak and groan, draft of air, and drug-induced hallucination is evidence of the dead rising again. Ned sees long-dead case law everywhere as well.

            1. I have explained the difference to Ned in easy to understand set theory language and he has consistently chosen to remain in ignorance.

              Purposeful ignorance of the law is no defense – especially for a lawyer charged with ethically advocating under the law.

              Ned’s advocacy on these boards is beyond shameful.

        1. Part and parcel of your refusal to recognize that there is a very real difference between Set B printed matter and Set C printed matter is the “integrated” aspect, as the ‘functionally related’ allowance that drives patent weight comes because ‘functionally related’ means the printed matter is integrated – there is a cause and effect mechanism OUTSIDE OF THE HUMAN MIND.

            1. Not in the patent sense – see my post explaining this in simple set theory terms that even you should understand.

              (besides which, you have ALREADY volunteered your admission as to knowing and understanding the controlling law in this area – why then the duplicity and dissembling, Malcolm?)

              1. The key of course – is that the functional aspect is outside of the human mind – but you already knew that pumpkin – notwithstanding your statements that you think machines really do think.

              2. The chances that Malcolm will actually engage in an intellectually honest discussion on this topic (especially after his previous volunteered admissions against interests) are NIL.

                Go figure.

              3. you have ALREADY volunteered your admission

                And you have already volunteered your admission to the psych ward, Billy.

                Nobody knows what your talking about half the time when you actually do attempt to articulate an “argument.” You have some “set theory” you want to discuss? Then discuss it. And when we punch a hold in your looneytunes theory bigger than your fat narcissistic head, then go ahead and pretend it didn’t happen.

                That’s what you do best, Billy. Get a life.

            2. Tautology time:

              All useful printed matter is functional.

              becomes

              All useful structurally defined inventions carry information content. (it is only the information content that makes anything useful – by definition).

              Now, with this in mind, revisit the good professor’s subtle jab at you at post 6.1

              1. “All useful printed matter is functional.”

                If you disagree with this statement, Billy, then tell everyone why. Maybe you can define “functional” in some very special way. Last time I checked people didn’t claim useless printed matter, and even if they tried to claim useless printed matter the claim would be ineligible under the utility prong of 101.

                All useful structurally defined inventions carry information content.

                Run with this, Billy. Super compelling stuff.

              2. I would rather have you attempt to say something about my addition of all useful structurally defined inventions carry information content.

                You do grasp why this is so, right? It’s rather implicit in the word “useful.”

                Or maybe you have not yet grasped the good professor’s subtle jab at you.

                LOL – that’s it, isn’t it? You don’t get the punch line yet.

                Too funny.

    3. Ned is once again trying to re-write history and nullify the 1952 Act.

      He wrongly blames Judge Rich, even as he blatantly leans on case law that precedes what Congress did in 1952.

  23. As said in the Bible…and lo…it has come to pass as was prophesied. When you’ve got people like Breyer, who think that a “public purpose” is stealing the house of a widow to turn over to a developer, you obviously will fail to have any cogent perspective on the Patent Act.

  24. August 27, 2014 at 10:03 am

    “These steps are collectively an abstract because they are “mental steps which can be carried out by a human using pen and paper.”

    ab·stract
    1.
    existing in thought or as an idea but not having a physical or concrete existence.

    1. If they are mental steps, what is the pen and paper for?
    2. Doesn’t the pen and paper and the activity of using them provide a physical or concrete existence?
    3. Doesn’t the system give them a physical and concrete existence?

    “Here, however, the claims recite merely a generic computer and instructions that simply implement the abstract idea discussed above.”

    All inventions are assembled from generic components.

    I sure hope this is just the Fed. Cir.’s way of showing the Supremes how stew-ped their Alice decision is.

    1. Les, would you think the claim was directed to 101 subject matter if it eschewed all machines, manufactures or compositions in its practice?

      No computers, pens, papers, printers or anything. Just the method of playing bingo.

      1. No. It would be a mere mental process. But when you have game pieces and such, it is a method claim that includes more than a mental process.

        1. Does not matter anymore after Alice, bja, as the “Gist/Abstract” sword makes clear that any such “nominalism” as a claim even including one of the “hard categories” is not safe from being labeled as abstract.

          Keep in mind that both parties in Alice had stipulated that the machine category part of 101 had been met – and such did not save the claim.

          With that Chamberlain decision, no patent is safe. If some judge merely thinks the gist (brushing aside whatever claim details need to be brushed aside) is “directed towards” some “idea” or abstraction, the claim is gone.

          This is what happens when you fall into the rabbit hole of Justices re-writing patent law.

        2. bad, but the patent laws are directed to new and improved machines, manufactures and compositions. Where they are not new or improved, but only used, just how is the use statutory?

          Now, the new use of an old machine, etc., is patentable as a process by statute. But that new use must result in something that a new, physical result or effect. Otherwise, the use itself must be deemed nonstatutory.

          If the any use of statutory machines, etc., is enough, then 101 and its constitutional purposes becomes a pure formality as the inclusion of machines, etc. in a claim is a mere formality. This is what has always divided the Federal Circuit/CCPA from the Supreme Court.

          1. You cannot “use’ something that lacks a certain capability.

            When you do”use” something to change that something and create that capability, then you have invented something.

            This (again) returns to the inherency argument and the “House/Morse” fallacy.

            Still struggling with your personal lack of understanding on the Nazomi case, Ned?

          2. …and you STILL miss the point on your little “nominalist” kick –

            The Supremes have set aside COMPLETELY the statutory category aspect of 101.

            It simply does not matter if the “scriviner” has been too clever and his words nominally meet the category requirement of 101 – the Royal Nine don’t care about that and will use the sword of “Gist/Abstract” on anything – whether or not the claim AS A WHOLE meets the statutory category.

          1. “Now, the new use of an old machine, etc., is patentable as a process by statute. But that new use must result in something that a new, physical result or effect. Otherwise, the use itself must be deemed nonstatutory.”

            1) Newness is judged under 102, not 101.

            2) New software makes a new machine. The old machine didn’t do bingo. This one does. Its new.

            3) From whence did you dream up this requirement Olivia Newton Ned: But that new use must result in something that a new, physical result or effect?

            I see nothing of a physicality requirement in my copy of the statute.

            In any event, the claimed system printed a bingo sheet didn’t it? Ain’t that physical?

              1. Les, true, discoveries were added back in, but new was not removed. A composition still must be new in the 101 sense.

                So the critical aspect of the amendment in 1793 is not necessarily the removal of discoveries but the addition of the word “new.”

            1. Les, “1) Newness is judged under 102, not 101.”

              No, Les, it is not.

              It was long the law before the ’52 Act, and Myriad has now confirmed that law, that a composition found in nature is not new under 101 even if newly discovered and is bnot otherwise in the prior art.

              There is a Judge Rich case to the contrary. But Judge Rich never cited the controlling authority to the contrary, and his holding has since been “overturned” by Myriad.

              Besides, this is the structure of the statute give it by none other than Thomas Jefferson when, in ’93, he dropped discovery, addend new and added composition to “101.”

              The prior art provisions, know and used, were separate.

              Thus, when you say that 102 governs newness, you are speaking against not only the Supreme Court, but well established case law going back to Thomas Jefferson.

              1. Ned – I am not arguing that the Courts are following the law. I am aware that Courts can make crap up and call it case law and have it turn the statutes on their head.

                My point is, when Courts make rulings based on obvious and novelty under 101, the Courts are WRONG.

              2. Les, whether the courts were wrong in deciding that an old composition was not patentable even if recently discovered can only be determine by the literal words of congress as embodied in the statute as initially passed, and as informed by the constitution.

                I have endeavored to point out to you what Jefferson intended when he dropped discovery, and added new and composition to the ’93 statute. Jefferson certainly did not intend to authorize the patenting of products of nature.

              3. I don’t understand your point Ned. Jefferson took discoveries out. So what? DISCOVERIES are in BACK BABY! Haven’t you heard? Everything that’s old is NEW again!

              4. Interestingly, Ned also does not address the AIA introduction of “new to You” as a legitimate form of “new”

                I reference the famed Senate soliloquy and the congressional intent to have their use of the word “new” to cover the changed ability to patent long standing trade secrets that otherwise pass the novelty and obviousness requirements.

            2. Regarding 2, this has been the historical requirement of Art.

              From Corning v. Burden,

              “An art may require one or more processes or machines in order to produce a certain result or manufacture. The term machine includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result. But where the result or effect is produced by chemical action, by the operation or application of some element or power of nature, or of one substance to another, such modes, methods, or operations, are called processes. ”

              Benson is to the same effect, clarifying that the useful end must be physical.

            3. Regarding 2, the previous post was directed to 3, the premise is that new software makes a new machine.

              But the doctrine operating in Benson –> Alice is that the computers are old and gen eric. Simply reciting an old computer to perform an ineligible method does not make a new machine.

              Now, I will grant you that if the program is integrated with the machine, then we have a new machine. But such integrated software is known in the parlance as firmware.

              1. WRONG Ned – we have covered this already in the wake of Alice and you yourself acknowledged that the Court strays when it so chose to IGNORE the statutory category aspect of 101.

                I see that you are attempting to convince yourself with your typical carpet bombing of an alternative theory – but your alternative theory is NOT what the Court used. You do not get to re-write the Court decisions in a language that you wish the Court had used (but did not use).

                Plus your definition of firmware (parlance) is false, as software TOO is integrated with the machine when that software is configured to (loaded on) a machine. You really must accept the FACT that software is equivalent to firmware and is equivalent to hardware. Your well-known bias of third party interests are known to be tied to this false position, and it is decidedly unethical for you to materially mistreat law for that third party benefit. You are ethically required not to misrepresent material law as you so attempt to do so.

                Software is a machine component and man-made manufacture in its own right, existing in physical form (i.e., software is NOT something totally in the mind – that is the idea of software, and this concept is evident in the FACT that software can obtain copyright and copyright requires the item be fixed in a tangible medium).

              1. As far as I understand the game, bingo sheets for not carry improved prices (what ever that means).

                You are really reaching to kick up dust wherever you can, aren’t you?

      2. Tell me again of Morse claim 5 – no instrumentalities there (compare to claim 6).

        Oh, that’s right – you ran away from the conversation when I brought up this point.

        Shockers.

  25. “These steps are collectively an abstract because they are “mental steps which can be carried out by a human using pen and paper.”

    Well then the steps in a method of making Crestor are collectively an abstract idea because they are “mental steps” that can be carried out with a caldron, measuring cup and spoon.

      1. The absurdity of the decision is the same.

        If using pen and paper is a purely mental step then using any tool is a purely mental step and any process is an abstract idea and any machine to facilitate that process made of known components is an abstract idea.

        The cotton gin was made of “generic” wood, crank, combs and fasteners, I’m sure. Likewise, the light bulb was made of “generic” glass, wire and sealing compound.

        1. Anything – and everything – is made up of ge neric elections, protons and neutrons.

          There are no stopping points on the “Gist/Abstract” swordplay.

        2. If using pen and paper is a purely mental step then using any tool is a purely mental step and any process is an abstract idea and any machine to facilitate that process made of known components is an abstract idea.

          Yeah, I don’t understand why they keep saying “mental steps which can be carried out by a human using pen and paper” – it makes no sense. They’re either mental steps, or they are not.

            1. Because the products of pen and paper cannot be patented? Ain’t that pretty basic?

              Then why don’t they simply say that the claim recites steps that can be carried out by a human using pen and paper? What do the “mental steps” have to do with anything?

              1. Because a pen fixes an expression to a paper, while the mind is capable of manipulating those expressions into different arrays without actually changing the location and configuration of the ink and paper…..

              2. Marty – ask your attorney if she would explain to you the exceptions to the judicial doctrine of printed matter.

                If you are going to comment here, you really should understand this aspect of controlling law.

      2. Ned,

        Compositions can be (easily) thought of as merely “directed to” something abstract and using only the (very very very) old – and not eligible in themselves configurations of electrons, protons and neutrons.

        While this logic has been taken to extremes – it is the very same logic that the court is using.

        The Court provided no limits on this inane logic. None. Patent law has been rent asunder. Blame the right people: the Royal Nine.

        1. “Patent law has been rent asunder” Bwhahahahahah

          anon I may not know much about the law, but I know something about politics. The vastly consequential perversions of patent law wrought almost entirely by software patents, and no other kinds of patents, were going to be mitigated one way or another. Even the crappiest Congress in the history of the republic showed it could move on this issue and was prepared to do just that.

          Instead, our only functioning political branch took decisive action and gave cert to a bunch of key cases targeted directly at software patents and abusive litigation stemming therefrom, and slammed them all home 9-0. The Federal Circuit is basically signaling that they recognize the necessity for this rollback. Banning software patents per se would have been needlessly provocative, but patent law has NOT been rent – it has been mended.

          My antagonists have not noticed the ground shifting under them, but it has, and I could not be happier with the last year in patent law….

          1. Marty – you are correct insofar as you don’t know much about the law.

            Celebrate lawlessness – until it is you that is the victim of that lawlessness.

            True lawyers respect the rule of law – not glorify in its negatement.

          2. Martin, I agree.

            But everyone must remember how we got here:

            Certain elements of the patent bar (read IBM, for example) kept pushing software patents, and the CCPA and the Federal Circuit were overruling or ingoring a host of prior CCPA case law, and the Supreme Court case law, to keep the door open for software-related patents despite that claims really covered nonstatutory subject matter – just conducted on a computer.

            Alice, it seems, had hammered the nail on the coffin of all nonstatutory subject matter patents — it is just that IBM and its fellow travelers have not given up. It is not that they do not get it, but software patents are their business and they need a fix, by the courts or by the legislature. Just wait for that push.

  26. Nice job Supremes. You’ve put an entire industry on tilt and filled the market with uncertainty. It’s a good thing that your jobs are guaranteed so that you don’t have to worry with pesky details like the economy.

      1. No Dennis. That’s the point. Bingo will forever be the same.

        The problem is there will never be an improvement to Bingo, or anything else.

        1. “The problem is there will never be an improvement to Bingo, or anything else.”

          I just created an “improvement” to bingo while I was reading your comment. Want to hear about it?

          1. sigh…fine, point taken. I was using “never” in a similar sense to the way it is used in the common expression “never be the same” that Dennis used. It was not meant to be taken literally.

            Let me then rephrase:

            The problem is improvements to Bingo, and many other things, will no longer be promoted as one would hope they would be.

            1. Bingo, and many other things, will no longer be promoted as one would hope they would be.

              The number of computer-implemented improvements that were achieved without patents outweights the number that were by many, many orders of magnitude.

              People are going to continue to write new software and sell it to people as long as their is a demand for such. The only difference is that there will be less room on the playground for a certain class of entitled patent attorneys. BOO HOO HOO HOO HOO HOOOO!!!!!!!!

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