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.
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.
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.
I think this history that Dennis paints is bizarre enough to make me half believe that Dennis is MM.
Doubtful – Malcolm has had more posts expunged than all others combined. Such indicates that Prof. Crouch is not Malcolm.
lol–I figured out who MM was years ago when I frequented this board, but never outed him. Nor will I now.
That’s nice.
But would you be willing to at least confirm whether or not he belongs to a state bar?
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.
LOL – I do not care that much.
Malcolm (again) with the “look at me look at me” retread…
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Plenty of things for you to attempt to give real answers to Malcolm (and not your vap1d posts that only you count as “answers”).
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.
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”?
I think it has been a long time since MM didn’t re-post a giant post at the top.
Ned, Milly wants attention.
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?
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?
…or improvements to any software (why limit to hearing aid software?)
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.
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?
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).
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?
??
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?
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?
Your question on balance has ZERO to do with this conversation.
Move the goalposts back and try again.
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.
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?
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.
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?
Nice misrepresentation about how long I have “peddled” this – as well as the rationale for doing so.
Try again.
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.
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.
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.
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.
“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.
“ Is there any serious dispute, about whether manufacturers benefit from patents?”
You keep on ignoring this disruption thing.
Think i4i.
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?
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 …
“tiny entitled class of wealthy grifters”
LOL – way too funny.
You are psychotic MM.
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.
MM thinks he is fine. He is very happy believing that he has won with 101. And, Ned loves him so he is fine.
LOL_ Don’tcha just love the “6-is-a-genius-because-he-agrees-with-me” Nedism?
Bolshevik
Keep up the great work, te a b ag gers.
Super compelling stuff.
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
Probably a more interesting story is Google, which needed the patents.
The awesome technology this guy invented, by the way, was written off by Microsoft as a complete loss. This guy is a salesman.
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.
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?
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?
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.
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?
>>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.
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?
“Define “information technology.””
Still waiting for you to define technological.
>>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.
To these people, the ends justify the means – it is as simple, and as ethically void, as that.
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.
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
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?
B-b-b-because enforcing patent rights is the second “worst-thing-evah”
/eye roll
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.
link to slate.com
Google gets its way. Google says no more patents. Google judges obey.
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.
>> 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.
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?
Germany has software industry because of the protection.
Nonsense. SAP was founded in the 1970’s.
…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.
>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.