What to do About All These Invalid Patents?

By Dennis Crouch

The recorder-of-deeds here in Boone County Missouri is pretty good at her job. Although there is an occasional error in the records, those errors are quickly remedied once found.  The property records are regularly relied upon and their correctness is important to ensure smooth operation of the real property marketplace.

Over the past few years, the Supreme Court has uncovered a few glaring errors in the patent records.  Namely – hundreds of thousands of patent claims have issued that are – in fact – not patentable.  These problematic claims either lack eligible subject matter under the patent common law and 35 U.S.C. § 101; are indefinite under 35 U.S.C. § 112; or are obvious under 35 U.S.C. § 103.  This results is prompted by the recent decisions in Supreme Court cases such as Alice Corp. v.. CLS Bank International, 134 S.Ct. 2347 (2014); Nautilus, Inc. v. Biosig Instruments, Inc., 134 S.Ct. 2120 (2014); Association for Molecular Pathology v. Myriad Genetics, Inc., 133 S.Ct. 2107 (2013); Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S.Ct. 1289 (2012); and KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398 (2007).

Prior to these decisions, the USPTO had been issuing patents under more lenient standards. See, e.g. State Street Bank (Fed. Cir. 1998). For its part, the USPTO has quickly modified its approach effectuate the new precedent that offers more stringent tests of patent eligibility and patentability. The result is not necessarily fewer issued patents or a lower grant rate, but instead perhaps a modification (narrowing) of claim scope.

These decisions are all naturally retroactive in that they apply fully to the aforementioned problematic claims found in already issued patents.  However, the general approach thus far has been to leave those patents and their problematic claims on the patent rolls as if nothing had happened unless and until a third-party challenges their validity or the patentee abandons the protection.  Q: Is this a problem? A: Yes.

Next time: A few ideas for moving forward.

358 thoughts on “What to do About All These Invalid Patents?

  1. That is quite a fanciful history, and it is bizarre to attribute blame to the USPTO. I think your history ignores SCOTUS refusing to take cert on subject matter cases, Congress passing laws, etc. Clearly the history is of judicial activism. The SCOTUS first OK’ing the information processing patents by refusing cert and then after deciding there was a problem (with no empirical evidence) deciding they would legislate and change the law.

    Outrageous to act as if the SCOTUS suddenly discovered some 15 years later a problem. Or that the Congress hasn’t passed major legislation during this time.

    I think this comment deserves a response from Dennis. The registry he references is very different then the real situation. The patents were not hidden. The PTO was following case law. The SCOTUS denied cert in 101 cases prior to Bilski. The fact is that this has more a character of the government encouraging people do something and then deciding it was not a good idea and taking away what they gave them. Yes at this point the Constitution should spring to mind.

    1. When the link is restored, check out Prof. Hricik’s Royal Nine use of, um, “facts.”

      Your wanting more accountability from the clan of Ivory Towerists resonates even stronger.

      1. I think this history that Dennis paints is bizarre enough to make me half believe that Dennis is MM.

              1. Of course not. I think there is value in anonymity, even if it comes at a price, although it changes the nature of discourse.

                If you really need to lift the veil of anonymity, you can determine MM’s identity through legal means.

  2. Malcolm (again) with the “look at me look at me” retread…


    B

    O

    R

    I

    N

    G

    Plenty of things for you to attempt to give real answers to Malcolm (and not your vap1d posts that only you count as “answers”).

    1. For most people, the degree of contempt served out to an argument is in proportion to the weakness of the argument.

      With anon though, it is the opposite. When all he can come up with is contempt, that’s all he’s got. The more contemptuous he is of the argument, the more boring he is, and the more he advertises to us that the argument does have merit.

      I’m here only some of the time. And even then, I reply only when I think that my words might be of interest to other readers. That’s why, often, I don’t reply to anon, no matter how hard he tries to needle me into doing so.

      1. Lovely AOOTWMD, MaxDrei.

        Have you checked out the complete lack of fact and law based rants from Malcolm?

        Reminds me:

        When you have the law pound the law
        When you have the facts pound the facts

        When you have neither pound the table.

        Malcolm specializes in table pounding.

        Wake up son.

        (and your lack of replies says FAR more than you think it does – “lack of interest” is B$, as if such were true, you would not trot out your shilling in the first place)

  3. David Stein: there is no test that can be consistently applied to patents to make this determination.

    That’s because there’s fundamentally different classes of patent claims and no single “test” is going to apply in the exact same way to the patent claims at the margin of the absolute worst or the barely acceptable within any of the classes. In part that’s why we have different patent statutes: to help people focus on various issues with particular goals mind. The courts are presented with specific problems and they apply the statutes and explain their reasoning. As a result of this, and as a result of time passing and the types of claims being litigated changing over time and in response to the court cases, the law necessarily and inevitably evolves.

    Patent law concerning a “new” technology should evolve as quickly as that technology evolves so that we are sure that we are rewarding the people who are developing the technology and not (1) speculators on what is going to become “widespread” or “demanded” only after it’s been gambled on; or (2) people who want to protect information itself, whether it’s limited to a certain conventional carrier or not. With respect to a pretty large portion of claims in the computer-implemented arts many people have zero confidence that (1) or (2) or both are being met by a large fraction of patents or pending applications. And until very recently it was pretty much the wild west for a long time. Face the basic fact: computers are old. Really, really old, from a patent prospective. Not quite as old as a ball point pen but way older than PacMan.

    With respect to biotech, I’m pretty sure Prometheus put a giant permanent damper on (2), which is great and was a long time coming.

    So you’re dissatisfied that you can’t easily evaluate every claim for eligibility based on the current case law. Okay. Then let someone who doesn’t find it so difficult help you do the analysis and you can modify the parts that you don’t like with some words of your own.

    But it’s never going to be as simple as “use this word in your claim and you pass the eligibility test.” Never. Ever.

    If you really believe that patent law should be rewritten such that people can protect, e.g., certain kinds of stored or transmitted information, with a patent claim then by all means step up and say so. Be bold, man! But if you don’t believe that, than you must recognize that people have tried and will continue to try to protect information and other ineligible subject matter with patent claims by futzing with the words in the claims. And a court is going to have to make the call. That’s what’s going on now.

    Regardless of how difficult it is for you to understand how to apply the case law to claims you believe are at the the boundaries, you surely do understand that a claim to, e.g., a computer configured to store [useful non-obvious information] and display [useful non-obvious information] is ineligible subject matter, right? You don’t question that conclusion do you? Do you need to know whether I licensed that claim or not to determine whether it’s worthy of a patent? Is that your “test”?

    1. I think it has been a long time since MM didn’t re-post a giant post at the top.

      Ned, Milly wants attention.

    2. Malcolm what if I’m Philips or GE and have found out how to make images of your innards that are sharper than those made up to now by me and my competitors. Instead of “Computer…..” I claim “CT Imaging Machine……configured to operate algorithm….X….to generate a CT image”.

      You know, a bit like Diehr, but with the end product a sharp image rather than an injection molded part?

      It’s data processing isn’t it? But might you not be persuaded to give me a patent for my invention?

      1. Or consider improvements to hearing aid software.

        Reverting to CT software, can we perhaps say that it makes a difference to patentability whether the image formed by the invention is of the vasculature inside your head or the buying preferences inside your head?

        If so, what words can we employ, to encapsulate that difference?

    3. MM: “That’s because there’s fundamentally different classes of patent claims and no single “test” is going to apply in the exact same way to the patent claims at the margin of the absolute worst or the barely acceptable within any of the classes.”

      Rubbish. There are fundamental attributes common to all patent claims that enable an appropriate test to be formulated. I know, not only because this is intuitively obvious, but because I have described one in the past.

  4. We are all waiting for the promised ideas from Prof Crouch. In the meantime, below, commentators suggest that Germany has been exceptionally friendly to software patents, since the mid-1990’s. If this is true, perhaps one can explain it as a perception in Germany that what’s good for SAP is good for Germany, in that SAP needs a bigger pile of patents than Oracle’s got (or any of the other American competitors).

    So is Germany now burdened with invalid software patents? After all, with Germany’s “twin track” system of litigating patents, the court trying infringement takes validity as a given. Apple v Samsung anybody? Does Google lobby against patents while SAP lobbies for them?

    If software patent oh so friendly Germany doesn’t these days have a problem with invalid software patents, why is that?

    1. MaxDrei,

      I provided a source and you have not responded.

      Not that I am surprised (of course) as such one-sidedness is the norm of any such “conversation” with you – as shown by years of experience.

      Here is another source, showing current day trends: link to taiwan.ahk.de

      When you get done with your dust-kicking and vap1d short script hawking, perhaps you want to delve into some actual facts (yes, this will require you to leave behind your “reality” and join us here on planet Earth).

      1. The Link is nice. It shows the German State of B-W (traditionally strong in mech eng) boasting its IT innovation capability. Germany is a very litigious place. There is more than an order of magnitude more civil cases than in England. Under the EPC though, programs for computers are not eligible for patenting. It is that which frees up B-W (within litigation happy Germany) to innovate in software, and make B-W ever more prosperous.

        Can you prove me wrong?

        1. ??

          Why would I “prove you wrong” when you are now making points against what you earlier claimed…?

          Are you not capable at all of critical thinking?

          1. Against? How so? When are you going to grasp that patent eligibility is a delicate balance between what fosters Innovation and what impedes Innovation?

            Balance. OK?

    2. From below – and totally ignored by MaxDrei (as it does not fit his script):

      and note this quote from the home page: “The software industry is characterized by periodic technological disruptions that pave the way for new arrivals.

      Willingness to learn was an attempted MaxDrei-ism – until it was shown that such only applies to willingness to learn how to reinforce his anti-patent short script shillings.

      1. Periodic technological disruptions, anon? Did you say “technological”? Are you telling me that, in Europe, the inventions in technology, that causes the disruption, ain’t patentable? If so, you are wrong. Remember, the EPC prohibition on patenting software is narrowly construed, to programs for computers, per se.

        When are you ever going to grasp it, that not all new software embodies a patentable invention?

        1. I provided a quote from a source (you know, you asked for a source) that proves your earlier point dead wrong.

          Kindly move the goal posts back, thanks.

          (and as I noted – your “per se” and “as such” marks you as a shill – nothing more)

          When are you ever going to grasp it, that not all new software embodies a patentable invention?

          Nice strawman – clearly you have not been paying attention to my position on these boards – that meeting the statutory category component of 35 USC 101 is not the only requirement in that statute.

          Wake up son.

          1. Billy: meeting the statutory category component of 35 USC 101 is not the only requirement in that statute.

            Billy has been peddling this new line for a couple weeks now in a desperate attempt to reboot the subject.

            Tell everyone, Billy: what needs to appear in a software claim to satisfy the 101 “utility” prong?

    3. Max why is it that the countries with all the innovation have strong patent systems?

      Once we have Google patent system I am sure we won’t have innovation.

      1. Night why is it that heart disease is more prevalent amongst speakers of English?

        You see the most innovation in places where people invest in it. What gives people confidence so to invest? Earlier I posted a Link to the guy who financed early Bezos. It wasn’t patents that gave him his confidence.

        1. Why is it then that other countries that similar to Germany don’t have innovation?

          Why is France such a dud? Etc. Etc. Etc.

          You know Max, brining up one example of a company that didn’t need patents doesn’t show much. How about Intel? How would they have faired without patents? Probably would have died off.

          Etc. Etc. Etc.

          1. What about Dyson, Nokia, Philips, Ferrari? I don’t know another country in Europe that is “similar” to Germany. One or more of its nine land border neighbour countries perhaps? Which ones though?

            Or are you thinking Japan because its patent law is virtually identical to that of Germany. Are the Japanese, under the same patent law, more or less inventive than Germans? What do you know about that?

            If you don’t know, then (just for a laugh) tell me instead what is it that you have been told to think, by the ridiculous news media you swallow?

            Intel? Isn’t that a company that makes stuff? Is there any serious dispute, about whether manufacturers benefit from patents?

            Amazon is not the only software company that didn’t need patents to get to giant size. Google, Microsoft too. One could go on and on.

            Etc, etc, etc.

            1. If you don’t know, then (just for a laugh) tell me instead what is it that you have been told to think, by the ridiculous news media you swallow?

              That’s some serious pot meet kettle from one of the hugest shills on the block, who has blindly swallowed perhaps more than anyone else in his 80 cycles of six months experience.

        2. LOL – the vap1d heart disease and ENlgish language reply…

          /face palm

          MaxDrei is hereby invited to join the rest of the anti-patent crowd in the search for a modern advanced society that has chucked all IP protection laws.

          As I have said, with friends like this, what patent system needs enemies?

  5. Dennis: Next time: A few ideas for moving forward.

    I assume this was just a joke made by Dennis at the expense of the heel-diggers.

    Billy and Company don’t want to “move forward”. They want to move backwards, all the way back to State Street Bank. Like Dylan’s Mr. Jones, this tiny entitled class of wealthy grifters just isn’t willing to accept that they are the no longer the Rulers of the Universe when it comes to patent law.

    For example, I’m sure there’s still claims being filed (and granted) that a high school kid could tank under Prometheus in five seconds. And there’s some bttm-feeders out there who’ve deluded themselves so deeply that they believe that they just need to wait until Billy and Company get Congress to step in and “fix everything” so that j nk can be enforced again. Either that or we’re looking at a bunch of patent “experts” who can’t speak honestly about patent law if their lives depended on it. Really hard to imagine, I know …

      1. Don’t you just love his AOOTWMD and his quip of “who can’t speak honestly about patent law“?

        It’s as if he really believes his own CRP that he flings around.

        1. MM is just bizarre. He is shameless and pushes his message in anyway he can. Reality means nothing to MM. Just bizarre that he spends so much time doing this. I just can’t image why someone would do this without being paid.

          1. Paid or not, I think the more problematic angle is the ethical one.

            Malcolm claims that he is a patent attorney – and if so, then he persistently and routinely violates the ethical rules as listed in the ABA model rules of professional conduct (specifically Rule 8.4) with his active advocacy on this modern social media which purposefully misrepresents material law, material facts and dishonestly treats what others post.

            He certainly shows a complete indifference to his legal obligations (and yes, those obligations exist outside of the courtroom).

            Or course, he may fully NOT be a practicing or licensed attorney. Prof. Crouch most likely knows. And in a related line of thought, I suspect that the ge + ne filter is maintained because Prof. Crouch does not want to test out the ability to not supply that identity if he did not at least take some nominal action to dissuade Malcolm from his odd and obsessive attacks on someone that does not even post here.

            1. Well, I frankly don’t think MM is an attorney. I know he says he is, but I’ve seen I don’t think he is.

              I don’t know anon. I know this ethical issue bothers you, but to my mind everyone seems to know or quickly learns that this is a free for all.

              I think you are right about the Ge ne filter. Ge ne from what I’ve heard might come after MM.

              1. Ge ne from what I’ve heard might come after MM.

                Let everyone know if you think that’s a good idea, Night Wiper.

                I can tell you this: it would generate a lot of press. Do you think it will be mostly helpful for Team Billy or for the vast majority of non-nxtcases who disagree with you and Big Jenny?

                1. I think it would be a good idea for you to stop prevaricating, stop dissembling, stop misrepresenting material points of law, material facts and what others post.

                  I think it would be a good idea for you to renounce your stated position that “intellectual honesty is not required here because this is a mere blog

                  I know – silly of me to even have to say that such things are good ideas, but hey, I am dealing with you.

                2. >>Let everyone know if you think that’s a good idea,

                  My comment Milly was merely a statement of fact. I have said before that I don’t think it would be a good idea. I think the boundaries of this blog should be decided by Dennis. Period. Any remedy I would seek would be via Dennis nothing outside this blog.

    1. It is past time for this bitter old prevaricating Bolshevik either to retire or do the honorable thing. “Honorable” as understood by disgraced Bushido warriors who were far better men than this piece of work.

      1. MM thinks he is fine. He is very happy believing that he has won with 101. And, Ned loves him so he is fine.

  6. Somebody in this thread mentioned that Jeff Bezos is worth USD 30 Billion. Good point. But it prompts me to wonder:

    1. Is that because of the help he had back then, from the patent system? Did his investors (see below) need to see patents?

    2. Or is it the very opposite, that back in the time when he was driving Amazon onward and upward, he was NOT impeded by patents (in the way that innovators are today)?

    link to politico.com

      1. The awesome technology this guy invented, by the way, was written off by Microsoft as a complete loss. This guy is a salesman.

    1. Max, the big picture is that Google and other big corps don’t want patents. That is why they are dying. I know that all the little minds somehow think that their great rhetoric had something to do with this. It didn’t. It is the money of the lobbyist that is driving this. Not empirical evidence or reality. It is the power of the big corp.

      1. the big picture is that Google and other big corps don’t want patents

        I’m not so certain that Google and other big companies don’t want patents. If that were the case, why would they all be vigorously pursuing their own patents and buying others? I don’t know the size of Google’s portfolio, but Microsoft has > 47,000 patents in its portfolio, which is posted for public viewing. It seems more likely that what these big companies want is to prevent smaller or foreign entities (competitors) that are might be more inventive to secure patents in areas in which they already have partial patent coverage, ongoing business or see new opportunities but no patents.

        While much of the recent discussion in the US has been on NPEs and PAEs, one might ask why that is the case? How often are the big companies the target of infringement actions by smaller entities (including universities)? What is the success rate in such actions, even when the evidence of infringement is incontrovertible? What are the legal tactics use to get perfectly legitimate claims of infringement disallowed? What are the costs to a small entity to assert and protect its patent rights? And, given the current points of discussion regarding recent court decisions, what is the likelihood that patents will be of any real value to a small entity, or to investors underwriting start-ups in the IT, biotech or other research driven fields? Who are the real trolls?

        1. Those are good points. The problem is this has all become political and there is no such thing as an intelligent debate with real data anymore. Money buys reports that are nonsense. Money buys paid bloggers.

          I agree that there are some mixed motivations going on with companies like Microsoft, but I think Google pretty clearly wants no patents. That is what they are lobbying for.

          Just bizarre that Microsoft hired all these researchers because of patents and now the researchers say they don’t want patents. Guess what they will say when they are fired?

          1. Guess what they will say when they are fired?

            The same thing as all of my old colleagues from big pharma.

            There is equally disconcerting and destabilizing anti-IP activity in the biotech field that will limit patent protection on most natural products. Ironically, this comes in the way of a directive from the USPTO to the Examiner Corps.

            For those who think the world might be better off without IP protection on information technology, I would encourage them to think about what it will be like when there is no incentive to invest in new antibiotics or vaccines, both of which are desperately needed.

            Perhaps Henry Kissinger was right in his recent editorial in the WSJ on the assembly of a new world order; he just didn’t look far enough into the future (or the past).

            We live in interesting times. Now, we must hope that we do not become known to those in authority.

            1. Perhaps Henry Kissinger was right in his recent editorial in the WSJ on the assembly of a new world order; he just didn’t look far enough into the future (or the past).

              ROTFLMAO

              Where do they dig these people up?

              1. >>Where do they dig these people up?

                They are on top of you MM. “These” people are dug up and then they dig about 1000 feet more to fine loony tune characters like you.

                By the way, the substance to attitude rating of your last post was 0/1 giving you a cumulative rating on this board of 0.

            2. For those who think the world might be better off without IP protection on information technology

              Define “information technology.” I’m all for patents on technology that isn’t described functionally or is nothing more than old technology with new labels attached to it.

              I would encourage them to think about what it will be like when there is no incentive to invest in new antibiotics or vaccines, both of which are desperately needed.

              Oooh, so scary! “Give us the patents we want or all your children will die!”

              Please tell everyone what antibiotic or vaccine is “desperately needed” in the US right now but nobody is making because “patents aren’t available.”

              disconcerting and destabilizing anti-IP activity in the biotech field that will limit patent protection on most natural products

              What’s being “destabilized” by these limitations? Can you be more specific about what you’re referring to?

              1. >>Oooh, so scary! “Give us the patents we want or all your >>children will die!”

                You are such a tool. How about, gee, without patents we are going to lose a lot more jobs and the country won’t be on the edge of technological change anymore. How about the stagnant 1970’s.

                Do you ever have any decent argument with anyone that disagrees with you? No you don’t. You do have Ned who supports you though. And according to Ned whenever you are bad it is because someone did something bad to you and they deserve it.

                1. without patents we are going to lose a lot more jobs

                  Uh-huh.

                  And children will die.

                  Pretty sure we’ve all heard this tired b.s. before.

                  Never mind the fact that nobody — certainly not Dennis or Jason or me or anyone else who comments here — is proposing that the patent system should be completely dismantled. Far from it.

                2. completely….

                  (of course not – only as much as the Red Queen / Humpty Dumpty decrees)

                  Never mind the fact that any such logic used in that attempt blows up in their face.

                  /eye roll

        2. fngl51: While much of the recent discussion in the US has been on NPEs and PAEs, one might ask why that is the case?

          Uh … because most people find those entities and their behavior revolting, to say the least.

          Where you have been? Living in a cave?

        3. It is less that they do not want patents (per se) and more that they would rather compete on factors such as size and established market presence and avoid the not-owned-by-them patents and the possible disruptive, change-the-game aspects of such.

      1. I linked to Slate but could not find what you imply is there.

        Living in Europe, I find that the patent system here always was confined to the useful arts, and still is, despite the best efforts of assiduous and zealous patent attorneys to push the boundaries of patentability beyond the ambit of the useful arts.

        So I find unsurprising and unremarkable the present efforts of SCOTUS, to row back to where the boundary always was, and should be. There is no evidence that pushing restraints on trade (patent rights)out and beyond the useful arts helps the national economy.

        It is tiresome here, to read constantly that the EPO’s boundary for patentability has not advanced beyond 19th century technology. Note the careful caution from both the EPO and SCOTUS, to define “technical”. They know that the definition will be out of date as soon as it is uttered. The joy of being in patents is that technical progress never stops, and to the public and the pols we can aver passionately and unwaveringly that it is our patents system that Speeds up this progress.

        1. >> to the useful arts

          And information processing isn’t useful? Gee, we live in the information age because we can represent and manipulate information. Our entire society is structured based on our ability to manipulate represented information. But, it is not useful? ==><== Driving cars, diagnosing illness, detecting breast cancer, monitoring tax compliance, etc, are not useful?

          I find it just so bizarre that in the information age these arguments can be made with the speaker being shamed.

          And, please: 1) Europe follows us. We are the leaders. You take. And, 2) Europe has a shame eligibility test that is tied to what is currently hardware on a computer. Please.

          Please. Please. Try to be intellectually honest and ethical. Try.

          1. It is dishonest of you to recite the two words “information processing” and then assert that Europe has only to hear that word to deny patentability. If we were to invest 1000 hours together looking at what happens at the EPO when “Information processing” patents get opposed, we would find that in many of them the Opponent is seen off with a flea in his ear! As to biotech, read Paul Cole to find out that Europe finds eligible much that the Prometheus Decision would render ineligible in the USA. As to “tax patents” Europe patents new games but says that methods for playing games and doing business are per se not eligible. Most reasonable people who do not have a vested interest are inclined to agree.

            And as for “USA leads, ROW follows” that is indeed often the case, even now, and even in the law. But in the narrow field of patent law. I come from a First to File jurisdiction and I don’t agree.

            As to the EPO on eligibility, the reason why recitation in Claim 1 of a computer is enough to confer eligibility is to divorce from eligibility the issues of novelty and obviousness. What’s so shameful about that, as an approach to 101, 2 and 3?

                1. …and yet you do not comment on the recent numbers that I provided – I see that you are still up to your old games.

                  Shockers.

            1. >It is dishonest of you to recite the two >words “information processing” and then assert that >Europe has only to hear that word to deny patentability.

              I have logged many hours reading the European cases and have fought this very issue at the EPO.

              Conceptionally the test is simple: does it improve what we the Europeans think should be part of the hardware.

              Everything else is in the weeds.

              1. Everything else? How about processing data to deliver enhanced CT images of parts of the body. Do it on the same hardware, but get sharper images. That’s nice.

                In the weeds? I don’t think so.

                1. I’d have to read it, but sharper images? That sounds like something that the Europeans think should be in the hardware.

                  So, it does processing on the image to improve its quality?

        2. As to the article, it shows what I want it to show. It shows the enormous power of Google and how its PR machine operates.

          Now Google doesn’t want patents. We have Hughs and Taranchula as the Google judges and likely will get another one soon. Chen is a Google judge, but appears to have a conscious, so he might turn out OK. As I predicted, the worst and most brutal judges are going to come from the technological and patent law illiterate.

        3. And as to reality::::

          Which is the one country that encourages the eligibility of information processing? And, I’ll give you a hint: it is the country that has the only substantive software industry in all of Europe. Yes, Germany. The Germans who believe that software should be eligible.

          Seriously, I know you guys have probably won by the Google money, but it doesn’t make you right. And it doesn’t change reality. All it means is that bought off judges who don’t know the basics of patent law or science write words that they don’t understand.

          1. Our replies have crossed in the mail.

            But now you remind me about the passionate debate inside the Family of Europe, about design patents on body parts for automobiles. Germany very much in favour, for obvious reasons. Other countries against, for obvious reasons.

            You can reasonably choose one or the other. Countries will choose according to their perceived national interest. There’s merit on both sides of the argument. But there isn’t, when it comes to debating whether to permit utility patents for pure business methods. That is the point of baulk, for reasonable minds free from vested interests.

            1. >at what happens at the EPO when “Information >processing” patents get opposed,
              The EPO is all about does it speed-up what we think should be hardware.

              >Most reasonable people who do not have a vested >interest are inclined to agree.

              Max, that is ridiculous. Most people that are educated understand that information processing is profoundly changing how business is conducted –not just this mere speed-up that the Google judges refer to.

              What I will say about this whole thing is that it has become politicized so that it is almost impossible to trust any type of empirical evidence and it is almost impossible to have a real debate on these issues. Money in the US buys all now. That perhaps is the real tragedy. I if I am making the call, I’d say it doesn’t matter what reality is, but only what Google wants. And Google wants an end to patents. We see now the most ignorant activist judges at the Fed. Cir. that the US has ever seen in any circuit court for 100 years.

              That is the real story here in the USA Max. Patents are now political. Debate is gone. Money trumps. Google has the money. We won’t have patents much longer.

              Although, I do see that Google is happy to cut it at the technological test of the EPO. I see how Google sees that as cutting out all of its business so it would be happy at that.

              So, yes, thinking out loud here, I think we are going to end up with a EPO type of test because of Google judges.

              The biotech industry is in a crisis here. Not sure how this will play out. But, I am sure money is leaving. Not sure if another country will take the industry from us or if it will continue in some new odd form.

              1. I agree with you that:

                “…information processing is profoundly changing how business is conducted…”

                but so what? How can that of itself be sufficient justification to extend patent protection beyond inventions in the useful arts? The point about patents are that they are a restraint on trade and so are justified only if the progress in the useful arts that they bring outweighs the restraint they cause. You can see it in chem and engineering, but not in software. SAP: was its growth enabled by patents?

                1. I agree with you that:

                  “…information processing is profoundly changing how business is conducted…”

                  Business people have been processing information for thousands of years, MD.

                  Don’t fall for Billy’s silly and vapid rhetoric.

                2. For SAP yes. I have a German software patent with me listed as the primary inventor. I was writing software in Germany at the time SAP rose.

                  The thing you don’t get: maybe you don’t care and are like Ned and MM being paid to speak. But, if you are sincere, then the thing you missing is what people can do without the patents.

                  You know, setting up a copying center in India and then doing something like just copying the entire system of SAP and every new feature they come up would be possible.

                  The only reason it isn’t done is patents. Patents encouraged me for sure. I got a big bonus and had to come up with stuff that the patent attorney felt was a 103 above what was being done.

                3. MAX: >I agree with you that:

                  >“…information processing is profoundly changing how >business is conducted…”

                  Well that is some indication that you are decent. The dirt bag MM will not even admit this.

                  I think if you agree with that then the burden is on you to tell us why you think these business method patents are different than say chemical patents. I don’t think they are.

                  Also, Max, if you are European then you know the history of Germany. You know that Germany made an initiative in the mid-1990’s for innovation that included strong patent protection. It worked. Germany went from near collapse to top of the heap. They have lots of problems still but the innovation revolution of the mid 1990’s has paid off unbelievably for the Germans. It was their second economic miracle. Patents were a cornerstone of the strategy.

                  This. Is. Well. Known.

                4. NWPA,

                  You miss the shill’s next line: so what? You also miss his dogma driven proclamation that applying for patents for business methods should not be done, because, um, well, because he says so.

    2. What I find so deeply disturbing about posts like Max’s is the complete lack of evidence by which we are now burning our patent system down. We get little anecdotal evidence at best. The rest of it is sheer psychotic nonsense. It is just like an Alice decision. Judges look at something and without any external evidence (and not even being qualified to assess or understand the technology) declare it as no good.

      I would challenge the judges in the recent Bingo decision to write 250 word essay on how a general purpose computer works. Bet they couldn’t do it. I’d bet they have no idea how any of this technology works. Probably could not even recognize Ohm’s law.

      Be real. Get back to evidence based thinking.

      1. Or probably a better test is ask the judges to explain the equivalency of hardware/software/firmware, and what the Church-Turing Thesis is along with the van Neumann architecture.

        In fact, we live in the information age. If a judge cannot understand the above, then they are clearly NOT qualified to be on the Fed. Cr.

      2. Ohm’s law.

        Because Ohm’s law is sooper dooper relevant to the claims at issue in this case.

        Keep kicking up that dust, Night Wiper.

        1. >>Because Ohm’s law is sooper dooper relevant to the claims

          Because it illustrates a general literacy with science.

          You are so worthless MM. You like a kid in a assembly sitting in the back screaming insults to the principal. Except in this case there is no consequence to your actions.

          You are just filth.

    3. I highly doubt that MaxDrei understands the very article he links to.

      He very clearly does not understand that an anti-patent position is aligned with those very same elite owners of the Multi-National Corporations.

      He very clearly does not understand that patents allow for game-changing disruptive innovation that can level the playing field and that will do far more than merely lift the minimum wage (and expressly here, the idea of raising the minimum wage is NOT a bad idea – but it most definitely is not the type of idea that excludes the true answer of making patents STRONGER – not weaker).

      1. Not to mention that the one country that has a software industry in Europe also has the most liberal laws regarding software patents.

        The most innovative country in Europe wants software patents.

        Google does not. Google has Googled our Federal Circuit. We now have technological and patent illiterate judges that know one thing—information processing is bad.

          1. the lemming kool-aid indoctrination of “software engineers” to see a lack of critical thinking.

            Keep smearing those people, Billy!

            Great strategery.

              1. Maybe you can provide an example of software that is not a machine component.

                Maybe you can provide an example of a software claim that looks anything like an enforceable claim to a “machine component” in the grown-up arts. You know what I’m talking about: a component that’s described in objective structural terms and not some handwavey functional b.s.

                We all know you love to move the goalpost around and equate the “actual” invention with the functionally claimed hoohaw that appears in the typical computer-implemented claim. Unfortunately for you, Billy, most people aren’t as st 00pit and as easily confused as you are.

                1. LOL – in the “grown up arts”

                  objective structural terms…

                  You still have not found that cite yet, have you? You know, that’s a pretty material point of law that you are dissembling on about, don’tcha?

        1. You are going on and on about Germany being the only country in Europe with a software industry. Is it only SAP that counts? What about the games industry? You go on and on about Germany favouring patents on software. What’s your source please.

          1. MaxDrei,

            Not sure what NWPA’s source is, but a quick search reveals:

            link to truffle100.com

            Other sources also confirm the overwhelming main country is Germany. Did you have sources that say otherwise? Or are you just trying to do your usual “throw CRP at the wall and see what sticks”?

            (and note this quote from the home page: “The software industry is characterized by periodic technological disruptions that pave the way for new arrivals.

            And if you had any sense about you, or had studied the innovation scholars you would easily see that patent systems promote and protect such disruptions, and new arrivals are protected from the behemoths because of patents. Even if that concept does not fit into your echo chamber views, you should try to understand (and gasp, perhaps even accept it).

          2. (and in case you are wondering MaxDrei, the revenue percentages have Germany WAAAAAAY ou tin front with 49% with the next closest country being the UK at 15%)

            Hope that helps your, um, understanding.

            1. Well yes. As I observed earlier SAP dwarfs everything else. Good for SAP. So, how about we study how much patents helped SAP get where it is today.

              Of course, a huge patent portfolio helps a giant stay a giant. But that’s not what patents are for, is it?

              1. Unclench your eyes – you are still refusing to see the disruptive possibilities.

                You want to see the wall of a portfolio, and not the novel new path that is an alternative to that wall.

                (so to answer your question in a manner of speaking: your question is not the question to be asked in the first place, as it exhibits a lack of understanding of innovation itself)

              2. I am not certain that it is only SAP. But, it is a good point that it would be interesting to study how much patents helped SAP.

                there is also a bigger picture point. That Germany is the country most friendly to patents in Europe and Germany is by far the most innovative country in Euope with the best economy.

                That applies to who else Max? Now if you want to be fair then it applies to S.Korea, USA, Japan, and yes the UK. So, all the drivers of innovation in the world have (did have) strong patent systems.

                Anyway….too busy for this nonsense. Nothing I say matters as it comes down to Obama taking $25 million for the next Fed. Cir. appointment being a Google Judge and they will say what is what. And nothing I say will hold up to $25 million.

                1. Also Max, I was involved a little bit in raising money for start-ups in Munich. So, I do have some sense of Germany and the environment.

                  And, ——PLEASE TRY TO BE REAL—–Germany is the number one economy in Europe!!!!!!!!!!!!!!!!!!!!!!!!

                  And MAX ——– I WAS THERE AT THE TIME——Germany went from in the dumps to on the top. How did they do that? Well, Max they did that by expressly encouraging innovation. They said we are going to innovate to get out of this mess. And, one way they did that was with patents!!!!!!!!!!

                  Man, it is just filthy blogging here. There is no reality. No decency. Just filth bags saying and lying in anyway they can to make a point.

                  And, the worst part of it is that the Prof. here appears to be in their camp.

                2. I’m still mystified by your mid 1990’s point about Germany, that this is when Germany first got innovation. Perhaps you allude to the German notion that an enquiry as to novelty should not be part of the eligibility enquiry, with the consequence that a claim to say “A Computer.” is eligible. Patent friendly or not?

                  Doesn’t make “A Computer” patentable though.

                  As to SAP:

                  link to en.wikipedia.org

                  I fail to see what role patents have played in the history of the Company, up to now.

                3. Max, what? You don’t know that Germany was in a transition period in the mid 1990’s? That they considered massive employment restructuring to compete. That instead they decided that innovation was the way out of their economic problems. And that they did everything possible to encourage innovation.

                  Please.

                4. >I fail to see what role patents have played in the history of >the Company, up to now.

                  1) So, you don’t see how patents create a general environment where inventors and investors have confidence that they won’t be copied? Right.

                  2) Why is it that only countries that support software patents have a software industry?

                  Why is that Max?

                5. NWPA,

                  MaxDrei has always been a shill. Count the number of horse carcasses next to the well of wisdom that I have led him to. He is “all about” having a mind open to learning – as long as what is being learned fits his dogma. Anything beyond that, and all of a sudden, MaxDrei cannot grasp what is being said. 80 cycles of 6-month experience has cemented in a world view that is the very opposite of a mind open to learning.

                6. Night your comments on Germany bear no relation to the reality I know. Who sold you this nonsense about revolutions in the mid-1990’s. It is drivel. I suppose you refer to Gerhard Schroeder’s “Agenda 2010″ which achieved nothing else but incremental change in labour flexibility and cost, even while it was spun to something more, to suit various political objectives.

                  The notion that Germany’s technologists suddenly turned innovative in the mid 1990’s is ridiculous. Or are you referring to Germany’s hitherto deeply conservative banking sector? Now there, I grant you, led on by London and New York, German bankers did become innovative, in thinking about how to increase their fee income. But what’s that got to do with Agenda 2010, and what’s it got to do with patents?

                7. to the reality I know.

                  not to be confused with the reality of this planet Earth.

                  The shill speaks from his well-cemented world view – and is incapable of understanding anything else.

                8. Ned complains that Germany didn’t in the mid 1990’s chose innovation rather labor changes to labor law.

                  Ned, I’m not going to spend a lot of time proving to you what is reality. Go and read about Germany. I was there. I worked there for a German company at that time. I read the papers. I know what happened. I know now something like 40% of Germans are employed by new innovations spawned since the mid 1990’s.

                  The Germans in the mid 1990’s said they needed a second economic miracle. That was what they all were saying. And they turned to innovation. They won. You lost.

                  The won with patents. Them there are the facts.

              3. One more thing Max. The question with SAP is probably did the patent system in Germany create an environment where investors and inventors felt if they invented something that they could protect it with patents.

                I was there. I was writing software in Germany. I knew people starting companies in Munich and used to have beers with them.

                That is the bigger question that anyone that actually has been in innovation and company formation knows is the key.

                1. And I know very little about the specifics of SAP, but I do know that that bigger environment is what counts. That is what creates innovation and drives people and money.

                  I understand that Google has a different situation. They have all the money they could ever need, but think about it Max.

                  if you are a real person think….really think about Google.

                  Anyone that knows about innovation knows that Google has a massive problem. They are a corporation and are not good at innovation. They bought Android you know. And they have stagnated. They are fat and rich with very little to protect them. They know it. They don’t want patents.

                  Be real.

                2. I would myself cite Adolf’s Employee Inventor Law, which carries on even today and imposes an obligation on employers to file for patent rights on every employee Invention (unless the employee can have it or unless it’s a trade secret). Now that really does cultivate an environment favourable to innovation.

                3. >>I would myself cite Adolf’s Employee Inventor Law

                  Horrible nonsense from you. The history of the German second miracle is well known. The fact that it hinged on innovation and patents is well known. The fact that a huge percentage of German workers are now working on products from the fruits of this intensive innovation effort is well-known.

                  Why is it Max that Germany is beating your a$$?

                4. NWPA<

                  Look at how thick MaxDrei is – he presents a link implicitly tied to the strength of a patent system and insists on arguing for an anti-patent position.

                  No critical thinking there.

                  Give him his "Adolf’s Employee Inventor Law" but make the outcome equivalent to giving an employee a nice shiny penny for their thoughts and THINK (that's addressed to MaxDrei, not you) about how much motivation such a law would carry.

            1. Night you write that patents are to stop people in India copying the SAP code. I don’t see that as an argument for software patents with claims that are functional at the point of novelty. They impede competition rather than stimulate it.

              Patent-friendly Germany. Does it allow functional language at the point of software novelty? If not, it must be some other reason that explains Germany’s success at technological innovation.

              1. LOL – MaxDrei retreats, his vap1d script beaten, he now retreats to the canard of “functional at the point of novelty”

                The dude is a shill – and a poor, unthinking slovenly one at that.

      2. patents allow for game-changing disruptive innovation

        Game changing disruptive innovation does not require patents, Billy.

        Nice try, though.

  7. That is quite a fanciful history, and it is bizarre to attribute blame to the USPTO. I think your history ignores SCOTUS refusing to take cert on subject matter cases, Congress passing laws, etc. Clearly the history is of judicial activism. The SCOTUS first OK’ing the information processing patents by refusing cert and then after deciding there was a problem (with no empirical evidence) deciding they would legislate and change the law.

    Outrageous to act as if the SCOTUS suddenly discovered some 15 years later a problem. Or that the Congress hasn’t passed major legislation during this time.

    1. Clearly the history should be one of the judiciary changing the law by themselves and thus confusing everyone and causing everyone a lot of trouble. Probably what about $10 to $100 billion dollars in trouble.

    2. And do us all a favor MM and don’t respond to my post. I am sure you will plaster us all with massive “new” posts to stay on top.

    3. Lastly, you may want to notice that the 101 development by the SCOTUS is typical of common law development–not statutory interpretation or calling strikes and balls.

      1. In fact, isn’t the development of 101 at the SCOTUS almost a textbook example of the development of common law. I think it is.

        1. Not only that – common law developing not only in the face of controlling statutory law, but in the explicit section of law that Congress had previously rebuked the activist Court.

          1. Rader has a new interview where he says it is common law–well not explicitly but he talks about the development of the law at the SCOTUS.

  8. David Stein: 35 USC 101 has become a smell test. Legal consistency requires objectivity

    So how does one “objectively” determine whether some information or some abstract labeling applied to an old (or undescribed) physical structure or information processing method deserves patent protection or not?

    By the amount of money you can collect from speculators?

    Or what?

    Tell everybody what you have in mind, David.

  9. David Stein: there is no test that can be consistently applied to patents to make this determination.

    That’s because there’s fundamentally different classes of patent claims and no single “test” is going to apply in the exact same way to the patent claims at the margin of the absolute worst or the barely acceptable within any of the classes. In part that’s why we have different patent statutes: to help people focus on various issues with particular goals mind. The courts are presented with specific problems and they apply the statutes and explain their reasoning. As a result of this, and as a result of time passing and the types of claims being litigated changing over time and in response to the court cases, the law necessarily and inevitably evolves.

    Patent law concerning a “new” technology should evolve as quickly as that technology evolves so that we are sure that we are rewarding the people who are developing the technology and not (1) speculators on what is going to become “widespread” or “demanded” only after it’s been gambled on; or (2) people who want to protect information itself, whether it’s limited to a certain conventional carrier or not. With respect to a pretty large portion of claims in the computer-implemented arts many people have zero confidence that (1) or (2) or both are being met by a large fraction of patents or pending applications. And until very recently it was pretty much the wild west for a long time. Face the basic fact: computers are old. Really, really old, from a patent prospective. Not quite as old as a ball point pen but way older than PacMan.

    With respect to biotech, I’m pretty sure Prometheus put a giant permanent damper on (2), which is great and was a long time coming.

    So you’re dissatisfied that you can’t easily evaluate every claim for eligibility based on the current case law. Okay. Then let someone who doesn’t find it so difficult help you do the analysis and you can modify the parts that you don’t like with some words of your own.

    But it’s never going to be as simple as “use this word in your claim and you pass the eligibility test.” Never. Ever.

    If you really believe that patent law should be rewritten such that people can protect, e.g., certain kinds of stored or transmitted information, with a patent claim then by all means step up and say so. Be bold, man! But if you don’t believe that, than you must recognize that people have tried and will continue to try to protect information and other ineligible subject matter with patent claims by futzing with the words in the claims. And a court is going to have to make the call. That’s what’s going on now.

    Regardless of how difficult it is for you to understand how to apply the case law to claims you believe are at the the boundaries, you surely do understand that a claim to, e.g., a computer configured to store [useful non-obvious information] and display [useful non-obvious information] is ineligible subject matter, right? You don’t question that conclusion do you? Do you need to know whether I licensed that claim or not to determine whether it’s worthy of a patent? Is that your “test”?

    Let everybody know, David.

    1. MM: “That’s because there’s fundamentally different classes of patent claims and no single “test” is going to apply in the exact same way to the patent claims at the margin of the absolute worst or the barely acceptable within any of the classes.”

      Rubbish. There are fundamental attributes common to all patent claims that enable an appropriate test to be formulated. I know, not only because this is intuitively obvious, but because I have described one in the past.

  10. Why is the “problem” created by the recent caselaw in the above list any different than the garden variety patent that should have never beeng granted due to the prior art? There are tens of thousands of this type of presumptively valid, but clearly invalid, patents, many from well-known companies who continue to hypocritically complain about patent quality. I try to keep an open mind, but I cannot imagine anything that can be done to deal with issued patents that are clearly invalid, whether based on the recent 101 caselaw or garden variety anticipation or obviousness (apart from, of course, expensive third party challenges).

      1. No, that was not my point at all. All I said was that I can’t see any reason why patents which are now invalid in light of one or more of the cases mentioned in Dennis’s post should be addressed in some new fashion (apart from the usual validity challenges allowed under current law). Dennis is a bright guy, however, so he very well may have some ideas which make sense. Still, invalid patents issue every week–patents which would have been invalid under the caselaw from 20 years ago. What has changed to call for a purge (or whatever Dennis is suggesting)?

        1. Thanks for the clarification – if I understand you correctly then, you are sounding more in the Lemley “examination is not perfect and we should not expect it to be perfect” view, and wondering why the drumbeat of “patents are bad” is drummed so loudly. Did I get that right?

    1. This comment seems like a continuation of Paul’s comment #9 below about the much larger problem is a world full of patents that couldn’t stand up to existing PA. I agree with both.

      anon asks whether there’s a point to examination at all, but the problem is not in examination per se, but searching the PA and who should be doing it.

      Reality #1 is that a patent primarily certifies that the application passed muster as to determinations of patentable subject matter (101) and sufficient clarity in describing what is patented (112) – and the so-called “assumption of validity” is, and should be, very strong with respect to these two determinations.

      Reality #2 is that as far as novelty/non-obviousness goes, as a practical matter, a patent certifies nov/non-obv only so far as whatever prior art is listed in the examination/re-examination/supp-examination/whatever-examination documents. Any assumption of nov/non-obv over the entire universe of prior art is so weak as to be non-existent. As you point out, this is the real Achilles heel of the system: a huge number of patents are built on PA-sand.

      For years I have advocated that the problem of infinite PA and limited PTO time/search capabilities should be resolved by putting the search responsibility entirely in the hands of the applicant. The PTO should not be searching at all – nil, zero, zilch, nein, nicht, nada. We could lay off 1/3 of the examiners and speed up the process 2x. But not to worry, 6 – the laid-off examiners would be fully employed as searchers in the private sector.

      For his filing fee, the applicant should be allowed to submit the 50 most relevant references, with optional, preemptive comments. Only those disclosed references should be subject to the PTO’s analysis and 102/103 rejections. If the claims are so complex or numerous that they can’t be fairly examined on only 50 references, the application should be broken down into connected, simultaneously-filed applications each with discrete claim sets and associated references. Infringement would be assessed as to each component application separately.

      Any patent that issues would certify only that the invention is nov/non-obv over the art of record. The assumption of validity as to nov/non-obv would be very strong with respect to the art of record, but extend not an inch beyond.

      There would be no assumption that the applicant has provided everything his has. The whole idea of inequitable conduct by w/holding references should be scrapped. If the applicant wants to hide references, let him. I mean, what idjit would invest money developing a product or process knowing that his patent is worthless because the hidden references are beyond the scope of the patent’s protection? The sanctions for withholding references would be built into the questionable conduct itself. As it is, the mythical, plenary assumption of validity is really an inducement to withhold PA.

      IOW, this approach would allow the applicant himself to determine the strength of his own patent. If the applicant submits no PA, then the patent would certify only that there is patentable subject matter and a legally adequate disclosure. Applicant’s own due diligence in searching the PA should determine the strength of the nov/non-obv assumption.

      The examination should be conducted in two distinct parts. First, the 101/112 analysis should be completed so that these problems can be taken off the table before the applicant has to bear the expense of a comprehensive search. This should take a month or two. Once the examiner certifies that the application complies w/ 101/112 the applicant would have a year to submit its PA and the 102/103 analysis would begin. If applicant wanted to appeal 101/112 rejections, he could file his notice of appeal and either prosecute the appeal immediately or wait until the 102/103 examination has been completed.

      Without having reviewed the statutes/regs closely, my guess it that this sort of system could be implemented very easily. Basically, it would require insertion of “art of record” in a few places that refer to or define nov/non-obv.

      I’m still beating this dead horse, but mostly to keep the flies and moonbeam-nay-sayers off of it ’til it gets up on its feet and runs.

      1. Nice comment, BB.

        Note that this isn’t radically different from the classic “accelerated” exam scheme, where Applicants needed to provide the closest prior art and explain why their claims were patentable over that art.

        1. Great option to have: note that such cannot be made a requirement of applicants (hence, the reference to the Tafas case).

          Pay attention.

      2. It’s refreshing to see an attempt at a serious discussion of the problem.

        As someone who works in the search space (and holds and applies for patents on the underlying technology and is thus concerned about drafting claims, post Alice, post Bilski, post Bingo Gaming Software), I’d to provide an inventor’s/applicant’s/cleint’s views on Reality 1 and Reality 2.

        the problem is not in examination per se, but searching the PA and who should be doing it.

        Agreed. But, i would argue that the problem is with search itself and most of the methods of searching large corpora, such as the world’s patent literature and scientific, technical and medical literature do not work particularly well on this type of content. The majority of contemporary search methods operate at level of strings (tokens), but we need to work at the level of concepts (what the strings mean, in a given context).

        Meaning changes, over time and across disciplines. That is particularly the case for technical terminologies, especially in rapidly developing areas in which new terms are created, but frequently lack a concrete definition. Many technical terms also have synonyms and may be polysemous (many different meanings). Failure to take this into consideration when conducting a thorough search results in both false positives and false negatives. While the former can be filtered out by experts, retrieval of missed documents is far less easy without extensive training (machine and human) and leads to a extended/refined searches. The time required to conduct such searches increases exponentially with the size of the search space.

        I’m certain that most readers of this blog know that search is an active area of research for both the commercial and non-commercial sectors and the market for improved products is worth billions of dollars. An enhanced search method that would successfully return content that is semantically and contextually correct in any given setting would be game-changing in virtually every sector of the world economy. But, if it is based on an abstraction of language theory that is reduced to a set of algorithms (business rules) that run on general purpose computers and analyze information, how would one protect such an invention? Where does one draw the non-obvious line now and in the future? Would such a system or method constitute a ‘building block of scientific inquiry” and be deemed ineligible subject material? Is the software simply mimicking well known mental steps that could be worked out with pen and paper? After all, we were searching for and finding information in documents long before the general purpose computer was invented.

        How would one write claims for a novel software product that clearly understands exactly what a human wants to retrieve, searches all of the available content and returns all of the contextually relevant information, including all the content in which synonyms, polysemes and other linguistic ambiguities have been resolved? Some legal certainty would be nice.

        As for Reality 2, independent review by examiners who are true subject matter experts remains essential to avoid potential conflicts of interest. While I understand that the the question about examiners’ expertise frequently comes into question, so does the expertise of peer reviewers of scientific and technical literature, and of grant applications. It is always easier to blame the other party for failing to see the brilliance of one’s own work. But the question of thoroughness remains. Current limitations on the amount of time that an examiner can review an application, especially a complex one are probably unrealistic. I cannot imagine being able to give a 100-125 page application with >50 claims a careful and thorough review in less that 2-3 days, especially if I must also search for prior art.

        Think if each patent agent/attorney were given less than 20 hrs of time to draft a patent application and to file it (or better yet, set a statutory limit on the fee that could be charged to draft a patent application). While cost considerations are important to all parties involved, so too is work quality. The idea of a staged review of an application is interesting idea, but how to implement such a change in rules in accordance with existing law also neds to be considered, as has been pointed out.

        Thanks for a thoughtful and insightful comment on this thread. It was refreshing to be able to lower my flame-retardant shield, even if only for a moment…

        1. Thanks for the solid post fngl51 (no snark intended).

          Quick question for you re: “active area of research for both the commercial and non-commercial sectors and the market for improved products is worth billions of dollars. An enhanced search method that would successfully return content that is semantically and contextually correct in any given setting would be game-changing in virtually every sector of the world economy

          Should such inventions be patent eligible in your view?

          1. <i?Should such inventions be patent eligible in your view?

            Yes, patents are the appropriate form of IP protection. Copyright can protect data and code (along with other forms of access control, ranging from licensing agreements to obfuscation). But copyright only protects the form of expression. Changes in the way one expresses the basic instructions that comprise software (e.g., using different computer languages, different libraries of functions, etc. to write the same or similar software) could result in a loss of protection. This would be true even if the underlying methods are novel and non-obvious solutions to meaningful problems in the field of information technology. Beyond search, there are numerous problems to solve that do not necessarily require special purpose hardware. These include problems in pattern matching, data compression, visualization, etc. many of which can be accomplished with general purpose computers (which can range from lap-top or mobile device to a super-computer). Any or all of these applications could be deemed ineligible subject material.

            Perhaps part of the problem today is that “general purpose computers” are essentially configurable into any number of possible virtual machines that can be applied to an unlimted variety of tasks. They are basically “blank slates”. It is the software (e.g, the instruction sets) that converts the general purpose computer into a task specific machine, that takes some form of input (data, information) and transforms into something else (transformed data, transformed information) that is useful, and frequently novel, non-obvious and unanticipated. The problem is to the unsophisticated observer, this is not readily apparent. They can look at a sewing machine and a hay baler and see the difference, even through both use the same basic mechanical components (gears, levers, motors, mechanical fingers to tie knots, etc.) to accomplish very different tasks.

            But, when it comes to software, they cannot see that the underlying data structures, methods of transforming and analyzing the data and returning some form of useful output to the user seems so unremarkable and obvious because all of it runs on a general purpose computer. The actual machines that are created by software are virtual and the products that are created by transforming input data into output data, information, or knowledge are, more often than not, exist in electronic rather than physical form.

            Despite the fact that the information age began more than a half century ago, it would seem that our claim language concepts of eligible subject material remain rooted in the industrial era. this needs to change, for the sake of the our economy, and the playing field needs to be leveled, but that is a point for another thread in the future.

            1. Thanks for the great answer fngl51 (no snark).

              One caveat though – you use the term of art “virtual machine,” and many anti-software folk around here will likely see the word “virtual” and glom onto the thinking that the machine is not real -where in fact the machine so created is very much real.

              They will not understand (or even try to understand) what you mean by electronic form as you attempt to discuss (again a term of art) in comparison to physical form.

              Are you familiar with In re Alappat? – a case which is in a line of cases that also discusses the error of assuming no change in machine just because the (very real) changes are at a level not seen by the human eye.

              I hope to see more of your posts.

    2. Why is the “problem” created by the recent caselaw in the above list any different than the garden variety patent that should have never beeng granted due to the prior art?

      If a body of patent law experts is given a typical patent claim (and a specification to verify its interpretation) and a set of references, the experts should largely agree on whether or not the references teach the claimed invention. And when asked why, the experts should all provide largely the same analysis, with a correspondence between claim terms and passages in the references.

      If the same body of patent law experts is given a typical patent claim and asked whether it is patent-eligible under 35 USC 101, there will be very little consensus. Some of them will say “no because abstract,” and others will say “yes because not abstract.” And the conversation will end there.

      1. David, I agree. However, I believe that Dennis was referring to the issue of what to do about issued patents that are clearly invalid in light of recent caselaw. Also, his post was not limited to 101 issues, but rather included 112 and 103 problems. But I see issued U.S. patents on a weekly basis which would have been invalid under caselaw from 20 years ago. The point I was trying to make is that I do no believe there is anything extraordinary about recent caselaw which would necessitate taking some sort of action with respect to patents which are now invalid in view of those decisions.

        1. Other than better examination…?

          I mean if examiners are passing patents through to issue against 20-year old case law, one has to wonder what’s up with that , right?

          1. Other than better examination…?

            The problem is that we have no reliable way of measuring “good” examination vs. “bad” examination – because SCOTUS’s decisions have eroded any subjective basis for making such determinations.

            It’s no longer fair, or even possible, to explain why an examiner’s rationale about allowing or not allowing a claim under 101 / 112 / 102 / 103 was correct or incorrect. All you can say is that a SPE, PTAB, or federal court agreed or disagreed with the examiner.

            Of course, this is the obvious result of turning all of patent law into a “smell test.”

              1. but the point here is that even a twenty year old smell test is being bungled by examiners…

                But the “smell test” isn’t nearly 20 years old.

                In 2007, KSR totally shredded any objective standard for combining references.

                In 2008, In re Bilski vastly expanded the scope of the 101 question beyond basic utility to the machine-or-transformation test; and in 2010, Bilski v. Kappos replaced MOT with unexplained philosophizing about the term “abstract.”

                And in 2014, Alice, by endorsing the “it’s basically this thing” and “disregard the aspects of the claim that we don’t want to deal with,” the Court totally divorced the patent eligibility question from the claim language.

                So the “smell test,” in its full, florid malignancy, is only two months old. The USPTO still has no idea what to tell its examiners, and is desperately seeking some guidance other than “do whatever you want” (and isn’t really getting any).

        2. The point I was trying to make is that I do no believe there is anything extraordinary about recent caselaw which would necessitate taking some sort of action with respect to patents which are now invalid in view of those decisions.

          Sure, I agree with you. Nothing in recent case law has altered the fundamental mechanics of enforcement: indisputably valid patents will not be contested, but will be licensed or designed-around; indisputably invalid patents will not be licensed, and probably not even litigated; and borderline patents will be litigated (and/or licensed by more risk-averse parties).

  11. Perhaps the AIPLA could hand out to winners of the Giles S Rich moot court competition and engraved plaque of State Street Bank.

    1. The AIPLA might also consider disbanding its very large committee dedicated to being a cheerleader for business method patents. It is time for this old and prestigious organization to recognize the errors of its recent past and stop pushing for patents on nonstatutory subject matter.

  12. Land patents and equivalents are great examples of what everyone wishes 35 USC patents could be. Objective. Centralized. Following a shared lexicography. Testable.

    Are there problems and disputes? Sure. More often than not driven by mistakes, not uncertainty. And the types of issues in any single dispute are not unbounded.

    35 USC patents share almost none of those things.

    Without even getting into the issues of challenging the land patent, if land patents were written like 35 USC patents then:
    1. Every land owner would describe his or her land without reference to or knowledge of any of the surrounding properties.
    2. Every drafter would err on overstating their property interest and “negotiating” backward.
    3. Every drafter would pick his or her own coordinate system.
    4. The patents drafted in one locality might also apply anywhere else.
    5. Users of adjacent lands aren’t given any direct notice of claims in the land patent.
    6. Identifying the owner of any particular tract of land would be impossible.
    7. No official surveys would required to file for a land patent.
    8. Previous land owners would be presumed trespassers in the face of a land owner.
    9. Land patent owners could knowingly wait years until the “trespassers” had built upon the land and sue.

    We work in a crazy field.

        1. Poor Marty, you let your own level of ignorance cloud your judgement of what is insightful.

          How did those conversations with your attorney go? Did she set you straight? I do not see near the number of pure banal missteps of yours now.

    1. Thank goodness then that the patent right is a negative right, eh?

      (the obvious lesson being that all analogies have their limits)

      1. I guess I don’t understand your point.

        I picked trespass on purpose–the legal rule that gives a land owner the right to exclude others. Also, like 35 USC patents, land patents don’t often give the right do anything in particular, which are often restricted by other laws, rules, ordinances, zoning, etc. notwithstanding ownership rights.

        1. Patents do not give one the positive “right” to make, use, or sell anything, only the “negative” right to exclude others from doing so.

          Rights to land give BOTH the right to exclude others from the land and the right to enjoy the land.

          Many different patents owned by many different parties can apply to the same product. For example, you can patent a better windshield wiper, but that does not convey to you the right to sell windshield wipers if another patent owner has the patent to the windshield wiper. He can exclude you from selling a wiper incorporating your improvement and you have the right to exclude him from incorporating your improvement into his wiper.

          This has no easy analogy. It would be as if land could have overlapping “ownership” but whose rights are ONLY “exclusionary”.

          You can’t walk or build here, without my permission… and by the way I can’t walk or build here without his permission… etc.

          1. Rights to land give BOTH the right to exclude others from the land and the right to enjoy the land.

            That’s not necessarily true. Land patents is the grant of an ownership interest in the land. They might include unfettered right to use the land in any way the owner chooses, but that’s not really the case. I haven’t done an analysis, but I’d say few actually do that.

            They DO, however, give the owner the right to stop others from using the land.

    2. Every land owner would describe his or her land without reference to or knowledge of any of the surrounding properties
      Hardly. Most patents specifications employ terms of art.

      Every drafter would err on overstating their property interest and “negotiating” backward.
      As an attorney, are you acting in the best interest of your client by intentionally understating their property interest?

      Every drafter would pick his or her own coordinate system.
      We are stuck with the English language — and all its imperfections in describing technology. Deal with it.

      The patents drafted in one locality might also apply anywhere else.
      ???

      Users of adjacent lands aren’t given any direct notice of claims in the land patent.
      Why would they care about lands that aren’t their own?

      Identifying the owner of any particular tract of land would be impossible.
      Only for the incompetent. I live in a house and I don’t know who, precisely, is the owner of an adjacent lot. It really doesn’t matter … again, not my land.

      No official surveys would required to file for a land patent
      Its called a patent application.

      Previous land owners would be presumed trespassers in the face of a land owner
      If the land is entirely new then there wouldn’t be any previous land owners.

      Land patent owners could knowingly wait years until the “trespassers” had built upon the land and sue
      The failure of patent owners to be omnipresent … let’s hold it against them.

      We work in a crazy field.
      I’m not sure you should be included as part of the “[w]e.”

      1. BTW to add to this:

        “Land patent owners could knowingly wait years until the trespassers
        had built upon the land and sue”

        The traditional actual rule is that a squatter has to pass the 20 year mark before the owner has no remedy. This seems pretty much in line with the term of a patent…

        1. The traditional actual rule is that a squatter has to pass the 20 year mark before the owner has no remedy
          AKA … adverse possession. Nice point.

  13. To lighten things up a little on Friday:

    I hope to live in a nation where a patent is not judged by the gist/ classification/ ge ne ral field of invention, but by the content of the claims and the clear and distinct delimitation of the broad monopoly sought.

    I hope to live in a nation where all claims are treated equally, without gist/ class/ superficial profiling.

    I hope to live in a nation where granted claims are presumed valid until proven invalid according to the appropriate burden of proof …

    ….

    This was stuck in moderation for some reason….

    1. ge + ne (as you recognize by splitting with a space)

      This is courtesy of one Malcolm Mooney and his obsession with a certain Mr. Quinn.

    2. It’s been a few months since someone compared the travails of software-patent applicants to the civil rights movement. Thanks for classing it up, Anon2.

      1. LOL – your silence to the juggernaut of classlessness of Malcolm’s comments and your decision to speak up here says far more about you than you realize DanH/Leopold.

        (and it is not speaking very flattering things of you)

      2. Principles of Justice and Rule of Law are equally applicable to every area of the law and its execution/administration: high or low, exceptional or commonplace, profound or mundane…

        THAT is the kind of nation I hope to live in…

        now look what you did… I got all cereal.

        Happy Friday.

        1. Principles of Justice and Rule of Law are equally applicable to every area of the law and its execution/administration: high or low, exceptional or commonplace, profound or mundane…

          That’s lovely. But when you co-opt the profound in pursuit of the mundane, you trivialize the profound. Of course, that’s often part of the reason it’s done, isn’t it?

          1. Not at all.

            If correct, principles applied in the profound arenas, can only ever function as exemplars and role models for their application to the mundane arenas, at least in the minds of those who are rational and who actually uphold those principles with integrity and conviction.

            As my “analogy” of the application of justice to the mundane with its application to the profound does not in any way sully the profound, so too my reference to rationality, integrity, and conviction are not in any way disparaging of your person.

            i.e. To the extent you interpret my meaning correctly you will not be insulted.

  14. B. No.

    It might be a problem if the courts were correct. But they are not.

    Furthermore, the nature of patents is that they must be evaluated on a case by case basis. Even if a ruling of invalidity in any one case was coherent and made sense and was correct, how does that get how does that get translated to the next case.

    Examiners sometimes allege that since a claim includes the word “wherein” all the language following that word is optional and therefore ignorable from an examination standpoint strictly because of the word “wherein” and the fact that the MPEP alleges that the word wherein raises a question regarding an optional nature.

    Would you like to have all patents reexamined by such examiners extrapolating one sentence out of context from Alice or Bilski?

    1. Prof. Crouch’s bias is seeping through again. Notice how the conversation on the previous thread ended abruptly when I pointed out the historical fact that the Act of 1952 ended the permission from Congress to the Courts to set the definition of the word “invention”, and here the droll insertion of “patent common law” was inserted in this new thread?

      I “get” that there are many that prefer the efficiency of the common law tool. But a professor of law at least should recognize the distinctions of properly using that tool in the patent law context – both globally (the distinction between common law and statutory law regimes) and specifically in the context of 101, where Congress took deliberate actions in response to an activist Court.

      The fact that this fact is NOT acknowledged – and is perpetually obfuscated only shows the strength of the biases in play.

      1. Anon – As far as I know, the 1952 Act did not make any substantive change to the eligibility requirements found in Section 101.

        1793 Act: “[Whoever] invented any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement
        on any art, machine, manufacture or composition of matter…”

        1. The 1952 Act created and separated from what became section 101 the new section 103.

          The 1952 Act ENDED the Court’s common law ability to set the definition of the word “invention” directly because the hoped for coalescence of the meaning of that word never happened – and the activist court was engaging in nose of wax treatment of invention, inventive concept, patentable novelty and a host of like phrases

          It is more than just a little pedantic to say “Gee, the words are still the same” while ignoring the rest of history, the congressional record and the writings of Frederico and Rich.

          1. I thought the focus of this discussion in this thread was on the doctrine of subject matter eligibility and whether the 1952 Act was designed to block the Supreme Court from further defining and limiting eligibility beyond interpreting the words in the statute.

            Although my preference would be for the court to follow the statute rather than simply creating new common law doctrines from whole cloth, my point from the prior post is simply that it is a stretch to see the 1952 Act as blocking the Supreme Court in this way. In any event, we know that the Supreme Court does has not interpreted the statute in that way with regards to patent eligibility. (As you correctly note, it is a different story when we move to novelty and obviousness).

            I also think that you may have mis-interpreted my reference in the post to the court creating common law. Although we have a glorious common law history, courts today do not want to be seen as creating common law. That would be activism and not simply calling balls and strikes. I don’t believe that the Supreme Court has ever identified its eligibility jurisprudence as “common law” and rather has the usual approach of tying itself to the statute (Section 101) without even considering the actual language of the statute. But the exceptions to patentability are not an interpretation of the statute and I was simply calling them what they are.

            1. Dennis, and unstated assumption regarding the so-called exceptions are that they are constitutional dimensions that limit Congress. Time and again the Supreme Court has said they are interpreting §101 to be consistent with these exceptions.

              However, in the recent cases involving Bilski and Alice, we are not truly dealing in abstract subject matter because the claim includes whole lot of otherwise eligible subject matter. In these mixed subject matter cases that included the statutory and the nonstatutory, the mode of analysis must be to determine whether the statutory is otherwise patentable because it is novel and nonobvious. If not, then the patent essentially covers the nonstatutory. Call that abstract if you want, but technically what is going on here is the analysis of Hotel Security.

            2. has the usual approach of tying itself to the statute (Section 101) without even considering the actual language of the statute
              At least we can agree that this jurisprudence has no tie to the statute.

              the exceptions to patentability are not an interpretation of the statute
              They are judicially created exceptions. What should we call them but common law?

        2. > Anon – As far as I know, the 1952 Act did not make any substantive change to the eligibility requirements found in Section 101.

          Well, there is 35 USC 103: “Patentability shall not be negated by the manner in which the invention was made.”

          Despite its addition to 103, that statement was intended to counteract the dismissal of cases that were deemed insufficiently “inventive,” i.e., the “flash of genius” test.

          Nevertheless, we see hints of that rationale informing current 101 jurisprudence – e.g., Kennedy’s observation during the Alice Corp. v. CLS Bank oral argument:

          Well, let me put it this way. If you describe [the claimed invention] to a second-year college class in engineering and said here’s – here’s my idea, now you go home and you program over this weekend, my guess is that that would be fairly easy to program.

          1. David Stein: Despite its addition to 103, that statement was intended to counteract the dismissal of cases that were deemed insufficiently “inventive,” i.e., the “flash of genius” test.

            There’s a gigantic difference between a test requiring a “flash of genius” and a test that denies patent protection to m0 r0n-grade uses of a computer.

            Try to remember that, David. It’s not the first time this has been explained to you.

            1. m0 r0n-grade uses of a computer.

              LOL – why is that you continue to run away from explaining how ‘oldbox’ – without change comes to have capabilities that it did not have inherently?

              Or are you still trying to use the “House/Morse” canard?

      2. That is because Professor Crouch is dealing in legal reality for those interested in honest, competent, legal counseling on the law as mandated by the U.S. Supreme Court, not pandering to individual legal fantasies.

        1. Thanks Cur – but your comment is baseless, and Bias does not equal reality.

          Further, you should be aware that it is not the U.S. Supreme Court that has been given the authority to write patent law under the U.S. Constitution.

          Important facts to keep in mind and snuff that unearned smugness of yours. Come back and play when you have things straight.

        2. Professor Crouch is dealing in legal reality for those interested in honest, competent, legal counseling on the law as mandated by the U.S. Supreme Court

          Oh yes, the great SCOTUS, giving us gems like this:
          In any event, we need not labor to delimit the precise contours of the “abstract ideas” category in this case.

      3. The fact that this fact is NOT acknowledged – and is perpetually obfuscated only shows the strength of the biases in play.

        Yeah, and it’s probably an ethics violation, too! For shame, Professor Crouch!

        1. The ethics violation would come when advocacy is knowingly pursued that engages in misrepresentation.

          Of course, you already know that, dont’cha?

            1. LOL – Malcolm has an issue whenever I bring up ethics…

              Gee, I wonder why.

              And here, the self-appointed “grifter”-watcher, child-at-the-edge-of-the-field-of-rye protector cannot seem to behave himself.

              Tell me again Malcolm who has had the most posts expunged here for improper posting? (hint: that would be you)

              1. Malcolm has an issue whenever I bring up ethics…Gee, I wonder why.

                We all know why, Billy: it’s because you’re a path 0l0gicall l y in g t0 0l with a severe personality disorder which causes you to project your failings onto others.

                “grifter”-watcher

                And we all know why Billy is disturbed by anybody who would dare to keep track of how the patent system is abused by btt0m fee ding s cu mbags, and how self-proclaimed “experts” like Billy do everything they can to pretend those s cu mbags don’t exist.

                You represent a truly tiny minority of entitled, well-heeled di psh its, Billy. We’ve been watching you and your cohorts for years now. You’re still playing the same game and wondering why you’re losing. Well, there’s an easy answer for that. Let me know if you need me to spell it out for you, di psht.

                1. Again with the accusation – and again without any actual 1ie.

                  And yet, it is you that owns the “you don’t have to post with intellectual honesty because this is merely a blog” albatross.

                  You really don’t get how that wrecks your credibility (well, if you had any credibility), do you?

  15. The above-noted claim validity threats from changes in patent law from Sup. Ct. decisions pales in comparison to the number of patent claims for which the application examiner, with limited search time and resources, has simply missed the most relevant patent or publication prior art. This is amply demonstrated from reexamination and IPR statistics where suit-threatened petitioners have typically spent thousands of dollars doing a really thorough prior art search and found much closer prior art.
    The above comment about using reissues is a good one, providing the PTO finally gives them the priority they are supposed to have. Another [largely neglected so far] opportunity to repair and/or re-issue claims is the new AIA ex parte Supplimental Examination system.

    1. paul,

      your mantra on IPR wears thin.

      As to efficiency of search, I believe that Lemley wrote an indepth paper on the necessary trade-off between “perfect” search and examination and throughput.

    2. P.S. Also available are completely ex parte reexaminations requested by the patent owner itself, with unlimited amended and added claims. They are not examined by the original examiners, they are examined in the centralized reexamination unit. Now that that PTO unit has worked off much of its backlog of [no longer available] inter partes examinations it should be able to move faster on ex parte reexaminations.

  16. There is a more fundamental problem.

    Expiration dates, maintenance fee status, court determinations, and reexam events are not available in single, good interface, up to date, and comprehensive database.

    Ownership should be included in such a database (and recording made mandatory).

    For a system in which patents serve a notice function, this is a shame and a clear failure of the USPTO.

    1. How would you feel if the government passed a law establishing a registry that ALL personal property must be listed in the government’s database?

      Even that stick of gum in your pocket. Any – and everything – in your home.

      You use the word “notice” but you you do not understand of what that word pertains to. The word pertains to the notice of the “what.” We ALREADY have that notice.

      1. How would you feel if the government passed a law establishing a registry that ALL personal property must be listed in the government’s database?

        I would feel really bad. But I still think requiring identification of the real-party-in-interest in a publicly accessible ownership database for patents is an OK idea.

        1. That’s nice – your opinion is noted.

          Care to provide a legal backing for making such a law? Care to explain what more quid would you be willing to give for taking more quo?

        2. Why? If a patent is valid, its valid. Why does it matter who owns it? Do you want to trespass on the weak old lady’s land because you know she cant do much about it?

  17. Clue, any claim that recites gen eric computer technology, including CRM claims, are more than likely not claiming an improved machine.

        1. Tell you what MaxDrie, it tells the story of the Grand Hall experiment in a real life setting.

          It tells the story of the Diehr PON that wrecks the tripe that Ned peddles incessantly.

          You should give it a read and add it to your burgeoning understanding of US patent law history.

            1. LOL – COllins convinces you and I don’t….

              Gee – shockers.

              Almost as shocking as that stack of dead horses next to the well.

              That 80 cycles of 6 months experience you have really locks in your mindset there MaxDrei. I am not going to get choked up that your view doesn’t change.

            2. Remember that “mind willing to learn” CRP you used to spew? How much have you actually learned? (and no, that continual reinforcement of that set of 6-months experience of belieb system you have does not count as learning).

              1. “anon …..August 29, 2014 at 6:38 am ….

                What does Nazomi say about this Ned? Are you still personally struggling with that case?”

                anon, I’m struggling, in that I’m still waiting for you to tell me about Nazomi. Attention! This is giving you another chance, to post something useful to this thread.

                Meanwhile, post-post-Diehr, post-Alice, PON is alive and well and living in the Supreme Court.

              2. LOL – you, giving me a chance to post something useful…?

                What a Fn joke you are MaxDrei.

                The archives already have my comments on the case – the point here is that Ned refuses to understand the case because it cuts against his dogma. The point is to have Ned apply his “vast case law skills” in realizing exactly why this case cuts against his dogma.

                Meanwhile, what “lives in the Supreme Court” is hardly anything worth celebrating – or did you somehow miss that too in your reading here?

                1. The archives already have my comments on the case

                  Sure they do, Billy. And they’re sooper dooper coherent and compelling comments, too, right?

                  Nobody really cares what you think, Billy. Why don’t you go interview Ray Niro and make yourself feel important? He’ll let you buy him some quail and maybe you can drive his car. Yummy.

                2. Again with the Quinn obsession comments….

                  or the short script “English” style ones…

                  Come Malcolm – try to say something – anything without ad hominem and with just an inkling of intelligence.

  18. These sorts of problems could conceivably be remedied through reissue. Almost any amendment to fix such claims would be narrowing, so the reissue application could be filed at any point during the patent term.

  19. They got their presumption o validity still. So wamph waaa.

    That being the case, I don’t know how large of a problem this is. Except for the judicial body that explicitly caused the problem of their own accord. It should be a rather large problem for them, as they obviously cannot be trusted with this whole patent law thing. As the USSC noted in a recent opinion or argument, the CAFC seems to fundamentally misunderstand the basics of several patent law matters. Which is regrettable.

    1. 6 I don’t know how large of a problem this is.

      By this time next year you’ll be carving your own wheel out of a granite hillside so you can get to work on time — working for your Chinese boss, that is.

      I heard it on the Internets so it must be true.

      1. I heard it on the Internets so it must be true.

        LOL – that line has been reserved for 6’s dating of French models…

  20. Virtually the entire problem is contained in software patents. If you want a patent, execute in hardware. If you want a copyright, execute in software.

    A method that results in information should not be patent eligible. A system that has no physical structure should not be patent eligible.

    That essentially would solve the entire problem.

    1. Virtually the entire problem

      Yet another clueless statement from the man who openly admits he knows nothing of law.

      (sigh)

    2. A method that results in information should not be patent eligible.

      From the Wiki entry for Information Age:
      The Information Age (also known as the Computer Age, Digital Age, or New Media Age) is a period in human history characterized by the shift from traditional industry that the industrial revolution brought through industrialization, to an economy based on information computerization. The onset of the Information Age is associated with the Digital Revolution, just as the Industrial Revolution marked the onset of the Industrial Age.

      In my best Bill Lumberg voice, “yeah … ummm … we should deny patent protection to the prime driver of our economy.” Just f’n brilliant.

      1. we should deny patent protection to the prime driver of our economy

        It seems to work everywhere else. Or are they not in the information age too?

        1. It seems to work everywhere else. Or are they not in the information age too?
          Never had a good grasp of the facts, do you? Check out the following list of largest software companies: link to en.wikipedia.org

          8 of the 10 are from the USA (including 8 of the top 9).

          The following is a list of the largest internet companies:
          link to en.wikipedia.org
          7 out of the 10 are from the USA. 2 are from China, and one is from Japan.

          LOL

          1. Isn’t the important question whether these USA companies, these global champions, would be where they are today if, during their start-up days, the patent law of the USA had been working as it has been working in the last few years. As I understand it, they all grew to much their present size before the troll era began.

            Meanwhile, on your logic, we are all getting heart disease because we speak English. The facts are beyond dispute.

            1. As I understand it, they all grew to much their present size before the troll era began.
              We are talking about eligibility under 35 USC 101 — not the troll issue. How does this confuse you? You may apparently speak English, but your comprehension skills are lacking.

              Meanwhile, on your logic …
              Do you want to put forth a better explanation? Patents foster investment, which in turn fosters innovation. Increased investment = increased innovation. You call yourself someone experienced in intellectual property law yet I have to explain this to you? You need serious help.

              1. Patents foster Investment? Well, some of the time, yes. But when an FTO opinion flags up a thicket of patents, it is a brave Investor that goes ahead anyway. In such circumstances, patents deter Investment. Less Investment = less Innovation.

                Don’t tell me that nobody does FTO and therefore nobody is deterred. In a properly functioning patent system, people do FTO. Patents stimulate Innovation best when Innovators have to design around. That’s called Promoting the Progress.

              2. But when an FTO opinion flags up a thicket of patents, it is a brave Investor that goes ahead anyway
                We live in a world where there is a thicket of patents no matter where you go. Investors look to see whether or not you can create value, and if you can, can you protect it. If you can provide value (and protect it), the thicket of patents can be overcome.

                Don’t tell me that nobody does FTO and therefore nobody is deterred
                They are rare from my experience. Most patent holders (who assert) are looking for reasonable licenses.

                Patents stimulate Innovation best when Innovators have to design around. That’s called Promoting the Progress.
                That is one way. However, when patents become so weak that there is no need to design around.

          2. The lessens of history are lost on those with closed minds, Yawn.

            Take another field of innovation that the US excelled in when patent rights where denied elsewhere: bio-engineering.

      2. we should deny patent protection to the prime driver of our economy.

        So the test for eligibility is “what sells”?

        Tell us where you draw the line, Yawney.

        1. So the test for eligibility is “what sells”?
          Nobody pays money for “abstract ideas.”

          Are you doing that computer-implemented technology cannot be claimed as a process, a machine, or an improvement thereof? Assuming that they can be claimed in this manner (which they are), then the next question is whether or not they are directed to abstract ideas.

          1. Really?

            What does Google and Facebook make? How deep are their patent portfolios? How many of their patents cover abstract ideas?

            What about patents and other legal services? Talk about abstract ideas. What do you offer that is concrete for which you get paid?

            The harsh reality is that there are very few things that are made today that don’t rely on abstraction, in the truest form

            1. What does Google and Facebook make?
              You fail to appreciate that patent law protects both products (e.g., machines) as well as processes. Google and Facebook provide the results of the processes they practice.

              What do you offer that is concrete for which you get paid?
              Attorneys offer their services … what they do. What people do can be described as a process, which is protectable under the law (assuming that it is novel and nonobvious)

              The harsh reality is that there are very few things that are made today that don’t rely on abstraction, in the truest form
              Relying on an abstraction is not the same as being directed to an abstraction. As such, your point is … well … pointless.

              1. Yawn,

                fngl51 is just another person who sees the word “abstract” and does not recognize the terrain the word is used in.

                Sun Tzu – come one people, put on your thinking caps.

              2. Attorneys offer their services … what they do. What people do can be described as a process, which is protectable under the law (assuming that it is novel and nonobvious)

                There’s a lot more to getting a patent than that.

                Keep pretending otherwise, tho. Team Software Patents has been doing marvelously well by playing the f0 0l, especially lately.

        1. Deep stuff, folks. You heard it here first.
          Get out some … read a book, watch a movie … perhaps gain an appreciation of some cultural references.

          Your anger from being stuck in your parent’s basement shows through — live life a little.

        1. The prime driver of the economy of the USA is Shopping. You want patents on Shopping? Is that wise?
          Wow … so incredibly ignorant. Shopping today is an ENTIRELY DIFFERENT experience than it was 40 years ago — much of that is based upon the internet and/or computers.

          1. When I wrote “Shopping” I did not write “shopping in malls”. What difference does it make to growth in the US economy, whether people spend their money in malls or on the net?

            1. What difference does it make to growth in the US economy, whether people spend their money in malls or on the net.
              In 5 minutes I can identify a problem, find a product to solve the product, purchase the product and have it sent to my door in 2 days with extreme ease. The number of products available in such a manner numbers hundreds of thousands if not millions.

              Try to appreciate how this changes EVERYTHING. Jeff Bezos did and he is worth $30B.

              1. Worth USD 30B, is he, that lucky Bezos inventor fellow?

                But hey, that’s only only because of the patent that he took to issue before he started up his company, right? But for that patent, there would have been no Amazon, right Yawn?

          2. Shopping today is an ENTIRELY DIFFERENT experience than it was 40 years ago

            Because nobody ever sat at home and purchased stuff for delivered before the computer.

            You guys are truly amazing. The flexibility required to stick your head that deeply up your a xx and hold it there no matter what is truly impressive.

            1. Because nobody ever sat at home and purchased stuff for delivered before the computer.
              Oh yes … you would wait a year for next year’s seed catalog. If you were lucky, there was a phone number you would call. Otherwise, you might have to fill out a form and send it in. Of course, you would hope that they have the products in stock and your knowledge of the product would be limited to what was described in the catalog. Paying would involve sending a check. You would have no idea when it was shipped. God forbid if you changed your mind and wanted 2 packets of watermelon instead of 1 packet. If you forgot what you ordered last year, well, you are out of luck. If you wanted to compare the prices to a competitor, well … I hope you had the catalog of the competitor pre-ordered. Did you want it shipped on a particular day? Too bad. I could go on and on and on and on.

              You antis are truly amazing. Your jealously of the wealth accrued by the titans of software and the internet palatable.

        1. Does Congress have the power to protect information?
          We are talking about processes and machines. I see your knowledge of 35 USC 101 is limited.

      3. Where to even start.

        The movie industry is huge- one of our key export products. Zero patent protection.

        No working software engineers consult patents for ideas, ever.

        No software investors make investments depending on either protection from competition via patent or future assertion of patented methods.

        The vastest array of patent litigation ever assembled in the biggest market every contested by patent (i.e. the smartphone wars) have resulted in virtually no results for any involved player, good or bad, despite billions expended.

        The pure impotence of the patent system in dealing with software, which cannot ever fit the patent model, is only matched by the damage the system has done to its legitimacy by trying to jam the square peg of software into the round hole of physical invention.

        And never you mind the impressive economic damage done to many innocent parties in that pursuit. People who would innovate and hire more if not under irrational attack do to your too widely shared misconception.

          1. I don’t know. Tell me anon, why don’t you?

            If you like, start with just one of the very “many” fallacies that you have so perspicaciously spotted.

            1. 1) movie industry and copyright laws (with criminal penalties)…

              Let’s put criminal penalties on patent infringement for an equal analysis…

            2. Bonus:

              2) “No software investors make investments depending on either protection from competition via patent or future assertion of patented methods.

              Outright falsehood.

              Did you spot any?

              1. Where is the fallacy of logic (even if you can come up with an investor here and there that doesn’t fall within Martin’s hyperbole)? It could be that the occasional exceptional investor “proves” his hyperbolically expressed rule couldn’t it?

    3. Oh no, the entire problem is NOT contained in software patents. Clearance of other products can turn into a joke too, where the unknown is not if a product infringes a claim of an issued patent, but how much the clearance will cost in legal opinions. And also, how many of ridiculously broad patents have been granted by examiner X (the same names pop up over and over again).

      I’ll be curious to hear Prof. Crouch’s solution.

      1. So then, perhaps the problem lies not within the patent system, but the competency of the practitioners, examiners and judges. Perhaps it is they who should be held responsible for the claims that they draft, and the patent system should provide inventors and assignees with compensation for defective work.

        If other licensed professionals are held responsible for defective or shoddy work, why shouldn’t patent professionals be held to the same standard? Why shouldn’t inventors and assignees be entitled to compensation for legal costs, lost business opportunities, other costs if an issued patent was subsequently deemed invalid. Shouldn’t the experts have known that the claims they drafted were fundamentally flawed?

        1. If other licensed professionals are held responsible for defective or shoddy work, why shouldn’t patent professionals be held to the same standard?
          Its called malpractice … and lawyers get sued all the time.

          Shouldn’t the experts have known that the claims they drafted were fundamentally flawed?
          Is it malpractice to draft claims that have been acceptable for decades and have the Supreme Court change the law based upon a statute that hasn’t changed?

          What myself (and others) have been asking from the Supreme Court is some tangible guidance as to what they consider an abstract idea (the abstract idea exception is judicially created so they have to explain it). In CLS Bank, the Supreme Court refused to give us that guidance.

          1. What you ask for would effectively remove the Supreme Court’s fingers from the 101 nose of wax.

            The Royal Nine addicts won’t be satiated.

        2. I agree with you fngl51, not all the responsibility should be on the PTO examiners. How to do it at a reasonable cost for the inventors? I am not sure.

            1. That is fine, I can handle a remark.
              The responsibility of finding the most relevant prior art could be shared. For example, inventors could help looking for the prior art in the form of commercial products -there are a lot of innovators that are “doers” and do not care filing a patent before launching a product. Practitioners could help ranking the citations in IDS by order of relevance. There is also the crowd sourcing initiative from the PTO.
              I am convinced that with good prior art, the patents would be much better in the first place. Sometimes, you just need to look at what is cited in foreign cases, so there is room for improvement.
              My modest experience is that the recent changes in 101 and 103 jurisprudence are not the main problem.

              1. inventors could help looking for the prior art in the form of commercial products
                Inventors are problem solvers — not experts in searching. Examiners, however, are paid to be experts in searching.

                Practitioners could help ranking the citations in IDS by order of relevance
                Ask 100 baseball writers for their ranked list of 20 best baseball players and you’ll likely get 100 different lists. What is relevant to one is not relevant to another — not particularly helpful.

                I am convinced that with good prior art, the patents would be much better in the first place
                I agree. However, Examiner are trained and paid to be experts in the prior art — that is where the responsibility for finding the prior art should be placed.

    4. … Or we could adopt a test for patentable subject matter similar to what the EPO and China have, which allow for patents for technical software inventions but not non-technical software inventions.

      1. allow for patents for technical software inventions but not non-technical software inventions
        Do you have a policy argument for this distinction?

        1. B-b-b-because the Supreme Court has just taken up their own scrivining pen and ADDED the word “technological” to 35 USC 101.

        2. From a policy point or view: You should draw a line somewhere. I’m kind of on the fence wrt where the line should be drawn.

          But purely as tests–the EPO and China tests are so much more straightforward / manageable / able-to-be-predictably-applied than the absolute nonsense/mess of a test that we have now in the US.

          1. From a policy point or view: You should draw a line somewhere.
            Why must the line be drawn?

            But purely as tests–the EPO and China tests are so much more straightforward / manageable / able-to-be-predictably-applied than the absolute nonsense/mess of a test that we have now in the US.
            Ease of use is not the prime driver for the US patent system.

      2. I see it happening already, starting with Alice.

        GATT-TRIPS contemplates “all fields of technology” and the “Useful Arts” of the US Constitution has now been likened to “technology”. And the Supreme Court does not demur.

        1. LOL – see comment 4.4.1.1

          You really do not get this notion of US jurisprudence, which branch of the government has authority per our constitution to write patent law and the role that the Court is supposed to have, do you?

          1. One thing I know, anon. For sure you’re not going to tell me, are you?

            If you assert that I’m wrong and that, actually, SCOTUS in Alice did demur, then say so, and give me the basis for your assertion.

            But first, see your word “technological” at 4411. Do you say that word, coming from SCOTUS, is Ultra Vires? If so, what’s your argument in support?

            1. It is an explicitly added word to 101.

              Previously, the Supreme Court did their little bob and weave with implicit words.

              My argument in support? Easy: the Constitution is our supreme law and that document expressly delegates the power to write patent law to one (and only one) branch of the government.

              Previously, I have explained that it is permissible for a branch to delegate its authority (with proper guidance) to another branch.

              In this explicit instance, Congress first expressly delegated that authority, and then later recanted that authority.

              Pay attention.

              1. So, You say that the SCOTUS is re-writing the Statute, and that it can’t do. Meanwhile, I’m saying theSCOTUS is telling us what the Statute means, that it is doing no more than the job it is set up to do.

                This “recant” thing you mention. Is that the whole “business method” thing? If one particular claim that you can characterize as a “business method claim” is eligible then it necessarily follows that ALL business methods are eligible? If one animal with a tail is a tiger then all animals that have a tail must be tigers? Is that your point? Some “business method innovations” can be within the useful arts while others are not. I don’t see why that is so difficult for you to grasp.

                Meanwhile, I still don’t understand your point that “technological” is:

                “…an explicitly added word to 101″

                I don’t yet see it there. So how can it be “explicit” there?

                And anyway, why the fuss? Plenty of learned commentators have asserted for ever and a day that “useful arts” is synonymous with “technology” and always has been. That much is nothing new. It’s boring old hat. That those commentaries do find resonance within SCOTUS has become visible at last.

                Commentators also point out that SCOTUS decides no more than the necessary, turning the tiller no more than needed, to keep the boat on a steady course. Personally, I find that comment convincing.

                1. MD: Some “business method innovations” can be within the useful arts while others are not. I don’t see why that is so difficult for you to grasp.

                  It’s easy for Billy to grasp, MD. It’s just that his script requires him to pretend otherwise.

                  Remember: Billy wants to turn the clock back to State Street Bank. He’s that delusional.

                2. Nice goal-post moving there Malcolm.

                  Funny thing though – I have never depended on the State Street case for my arguments.

                  You do like making things up whole cloth, don’tcha?

              2. anon, rarely do I agree with you, but I do agree that adding “technological” as a 101 requirement, especially without again defining what that means, is completely and utterly wrong.

                Stick to the statute, please.

                1. technology: “machinery and equipment developed from the application of scientific knowledge.”

                  Not a bad place for the Supreme Court to start.

                2. technology: “machinery and equipment developed from the application of scientific knowledge

                  1) source?

                  2) it’s more than just hard goods

                  3) business methods are developed from the application of scientific knowledge (see Deming et al).

                  – so quickly you forget the pounding I gave you on that last point, eh Malcolm?

                3. the pounding I gave you

                  LOL. Keep dreaming, Billy.

                  source?

                  Nice try, Billy. Are you going to disparage the definition if it came from someone with “communist tendencies”? LOL.

                  it’s more than just hard goods

                  Does it include math equations, Billy? Data sets? Spit it out, Billy. Ask your mommy to help you if you are struggling with the English again.

                4. Lot’s of dust-kicking Malcolm – but no answers.

                  Please tell me that this is not the type of reply that you count as an “answer,” is it? That would be a 1ie.

  21. there is no test that can be consistently applied to patents to make this determination.

    That’s because there’s fundamentally different classes of patent claims and no single “test” is going to apply in the exact same way to the patent claims at the margin of the absolute worst or the barely acceptable within any of the classes. In part that’s why we have different patent statutes: to help people focus on various issues with particular goals mind. The courts are presented with specific problems and they apply the statutes and explain their reasoning. As a result of this, and as a result of time passing and the types of claims being litigated changing over time and in response to the court cases, the law necessarily and inevitably evolves.

    Patent law concerning a “new” technology should evolve as quickly as that technology evolves so that we are sure that we are rewarding the people who are developing the technology and not (1) speculators on what is going to become “widespread” or “demanded” only after it’s been gambled on; or (2) people who want to protect information itself, whether it’s limited to a certain conventional carrier or not. With respect to a pretty large portion of claims in the computer-implemented arts many people have zero confidence that (1) or (2) or both are being met by a large fraction of patents or pending applications. And until very recently it was pretty much the wild west for a long time. Face the basic fact: computers are old. Really, really old, from a patent prospective. Not quite as old as a ball point pen but way older than PacMan.

    With respect to biotech, I’m pretty sure Prometheus put a giant permanent damper on (2), which is great and was a long time coming.

    So you’re dissatisfied that you can’t easily evaluate every claim for eligibility based on the current case law. Okay. Then let someone who doesn’t find it so difficult help you do the analysis and you can modify the parts that you don’t like with some words of your own.

    But it’s never going to be as simple as “use this word in your claim and you pass the eligibility test.” Never. Ever.

    If you really believe that patent law should be rewritten such that people can protect, e.g., certain kinds of stored or transmitted information, with a patent claim then by all means step up and say so. Be bold, man! But if you don’t believe that, than you must recognize that people have tried and will continue to try to protect information and other ineligible subject matter with patent claims by futzing with the words in the claims. And a court is going to have to make the call. That’s what’s going on now.

    Regardless of how difficult it is for you to understand how to apply the case law to claims you believe are at the the boundaries, you surely do understand that a claim to, e.g., a computer configured to store [useful non-obvious information] and display [useful non-obvious information] is ineligible subject matter, right? You don’t question that conclusion do you? Do you need to know whether I licensed that claim or not to determine whether it’s worthy of a patent? Is that your “test”?

    1. Face the fact, electrons, protons and neutrons are old – really really old.

      Oh wait – you want more than that – you want configurations….

      And ‘oldbox’ does not have that capability…? so you want an improvement to ‘oldbox’.

      Well, why didn’t you say so?

      1. It’s almost better, Billy, if you just stick with “you’re a doodoohead and I’m super smart.”

        Nobody knows w t f you are talking about.

      2. So?

        Electrons, protons, and neutrons are matter. None are information.

        You can patent compositions of matter.

        Information is not a material, though you can RECORD information in material…. but then, that is called “writing”.

          1. Exceptions? Writing patent-eligible? Huh?

            I missed that too. Tell us about them, can’t you? Straightaway please, while I’m reading the 2013 Collins Paper on the Printed Matter Doctrine.

            1. You cannot be serious MaxDrei if you have not heard of the exceptions to the judicial doctrine of printed matter.

              Even Malcolm has volunteered admissions against interests as to knowing and understanding this controlling law.

              Do you live under a rock? Or is this one of your not-so-clever “provokes?”

              1. Even if I live under a rock, and even if I haven’t heard of the exceptions, I do know that your Admission against Interest point is absurd in the context of a blog, and nothing more than wishful thinking.

                I’m flattered, that you expect me to know this stuff. Why should I? I’m not a US attorney at law. Evidently, telling me about those exceptions is, for you, child’s play, the work of a moment. So go on, tell me.

                1. telling me about those exceptions is, for you, child’s play, the work of a moment. So go on, tell me.

                  Billy can’t do that, MD. He’s too busy kicking up a giant cloud of dust in which he can hide and pretend that he’s given you “all the answers” already.

                  Billy knows that the more Billy talks about what he believes, the more everyone will see that the only thing that matters to Billy is (wait for it): Billy. And his wallet.

                2. LOL _ MaxDrei is asking a question that EVEN you have volunteered an answer to – why don’t you be a dear and help him out?

              2. And you ask me to tell you – been there, done that.

                dead horses, crybaby veto and you running away from conversations have been the results.

                Are you saying that you are willing to change your ways? Do you really expect me to believe you?

    2. MM: “That’s because there’s fundamentally different classes of patent claims and no single “test” is going to apply in the exact same way to the patent claims at the margin of the absolute worst or the barely acceptable within any of the classes.”

      Rubbish. There are fundamental attributes common to all patent claims that enable an appropriate test to be formulated. I know, not only because this is intuitively obvious, but because I have described one in the past.

  22. More specifically, the problem is that there is no test that can be consistently applied to patents to make this determination.

    The CAFC had a test – actually, two – that the Supreme Court rejected in Bilski. The Supreme Court refused to articulate any test, and felt it wise to leave the question open-ended.

    And four years later, the Supreme Court, not happy with the total inconsistency and havoc created by having no test, issued Alice, in which… well, in which the Court again refused to articulate any test.

    Why the Court believes that any different “result” will arise from Alice, when it is a nearly carbon-copy opinion of its Bilski decision that really escalated the chaos in the first place, is an interesting question. The old saw applies here, that “the definition of insanity is doing the same thing repeatedly and expecting a different result.”

    So THAT’S the problem: 35 USC 101 has become a smell test. Legal consistency requires objectivity, of the sort that is totally missing from the Supreme Court’s cases. This is such a simple principle of law that it’s baffling why nine legal scholars cannot see it and refuse to do anything about it.

    1. 35 USC 101 has become a smell test. Legal consistency requires objectivity

      So how does one “objectively” determine whether some information or some abstract labeling applied to an old (or undescribed) physical structure or information processing method deserves patent protection or not?

      By the amount of money you can collect from speculators?

      Or what?

      Tell everybody what you have in mind.

      1. always asking – never giving answers, eh Malcolm?

        Tell us – if your little burnt fingers have healed, what is controlling law as to the exceptions to the judicial doctrine of printed matter. Then tell us why you insist on dissembling on that point.

        Please, do tell.

        1. never giving answers

          Meet Billy the Pat h o logical Li ar.

          He just can’t help himself.

          And he can’t figure out why people don’t love his horseshirt.

          Get medical help, Billy. Seriously.

      2. I second that request. To assert that “objective” is do-able, unless one is irresponsible, one must have thought about it, and concluded that it is possible. So, your thoughts please.

      3. I have something in mind, and have had it for years. It works well, and is legally supported, and I have discussed it on this forum back when I used to care, which is now the biggest barrier: I just don’t care anymore, and have moved on from the Sisyphean patent law exercise. Life’s too short.

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