by Dennis Crouch
The key language from the Federal Circuit’s most recent pronouncement in Ultramercial v. Hulu (Fed. Cir. 2014) is as follows:
We do not agree with Ultramercial that the addition of merely novel or non-routine components to the claimed idea necessarily turns an abstraction into something concrete. In any event, any novelty in implementation of the [abstract] idea is a factor to be considered only in the second step of the Alice analysis. . . . [And, the Internet] is a ubiquitous information-transmitting medium, not a novel machine. And adding a computer to otherwise conventional steps does not make an invention patent-eligible. Any transformation from the use of computers or the transfer of content between computers is merely what computers do and does not change the analysis.
= = = = =
Following Alice Corp., the Federal Circuit has now flipped its prior two rulings in the Ultramercial case — finding this time that the computerized business method patent lacks patent eligibility. Both prior Federal Circuit decisions in favor of patent eligibility had been vacated by the Supreme Court without opinion except with orders to consider Mayo v. Prometheus and Alice Corp v CLS Bank respectively.
This decision offers a strong signal from the Federal Circuit that the court is now understanding what the Supreme Court meant in its recent quartet of Bilski, Mayo, Myriad, and Alice and that the court will support the 101 eligibility decisions being laid-down by the lower courts and the Patent Office.
The patent at issue here covers a method of distributing copyrighted products over the internet – instead of paying for the product, the consumer watches a paid-advertisement. U.S. Patent No. 7,346,545. The claims include some further limitations, such as using an “activity log” to select the advert to be shown based upon criteria (such as whether the advertiser has paid for another transaction). Claim 1 is pasted below.
It turns out that the advertising model works for the internet just as it previously worked for radio and television. And, as a result, the patent would be quite valuable, but only if it were valid. It is not valid. The decision here does not eliminate all software patents, but it again calls-into question patents where the focus of the invention is either the content of information being transferred/transformed or a business transaction. It is telling that the court added the following the caveat to its decision here: “[W}e do not purport to state that all claims in all software-based patents will necessarily be directed to an abstract idea. Future cases may turn out differently.”
The district court in this case found that the claims embodied the abstract idea of using “advertisement as an exchange or currency.” On appeal, the Federal Circuit rejected that restatement for a more detailed analysis:
The process of receiving copyrighted media, selecting an ad, offering the media in exchange for watching the selected ad, displaying the ad, allowing the consumer access to the media, and receiving payment from the sponsor of the ad all describe an abstract idea, devoid of a concrete or tangible application. Although certain additional limitations, such as consulting an activity log, add a degree of particularity, the concept embodied by the majority of the limitations describes only the abstract idea of showing an advertisement before delivering free content.
With that abstract idea in hand, the court moved to the second step of the Alice Corp test — whether the claim adds significantly more in its implementation such that the abstract idea is transformed into a patent eligible invention.
We conclude that the limitations of the ’545 claims do not transform the abstract idea that they recite into patent-eligible subject matter because the claims simply instruct the practitioner to implement the abstract idea
with routine, conventional activity. None of these eleven individual steps, viewed “both individually and ‘as an ordered combination,’” transform the nature of the claim into patent-eligible subject matter. The majority of those steps comprise the abstract concept of offering media content in exchange for viewing an advertisement. Adding routine additional steps such as updating an activity log, requiring a request from the consumer to view the ad, restrictions on public access, and use of the Internet does not transform an otherwise abstract idea into patent-eligible subject matter. Instead, the claimed sequence of steps comprises only “conventional steps, specified at a high level of generality,” which is insufficient to supply an “inventive concept.” Indeed, the steps of consulting and updating an activity log represent insignificant “data-gathering steps,” and thus add nothing of practical significance to the underlying abstract idea. Further, that the system is active, rather than passive, and restricts public access also represents only insignificant “[pre]-solution activity,” which is also not sufficient to transform an otherwise patent-ineligible abstract idea into patent-eligible subject matter.The claims’ invocation of the Internet also adds no inventive concept. As we have held, the use of the Internet is not sufficient to save otherwise abstract claims from ineligibility under § 101. Narrowing the abstract idea of using advertising as a currency to the Internet is an “attempt[] to limit the use” of the abstract idea “to a particular technological environment,” which is insufficient to save a claim. Given the prevalence of the Internet, implementation of an abstract idea on the Internet in this case is not sufficient to provide any “practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” In sum, each of those eleven steps merely instructs the practitioner to implement the abstract idea with “routine, conventional activit[ies],” which is insufficient to transform the patent-ineligible abstract idea into patenteligible subject matter.
That some of the eleven steps were not previously employed in this art is not enough—standing alone—to confer patent eligibility upon the claims at issue.
While the Supreme Court has held that the machine-or-transformation test is not the sole test governing § 101 analyses, that test can provide a “useful clue” in the second step of the Alice framework. A claimed process can be patent-eligible under § 101 if: “(1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” The claims of the ’545 patent, however, are not tied to any particular novel machine or apparatus, only a general purpose computer. As we have previously held, the Internet is not sufficient to save the patent under the machine prong of the machine-or-transformation test. It is a ubiquitous information-transmitting medium, not a novel machine. And adding a computer to otherwise conventional steps does not make an invention patent-eligible. Any transformation from the use of computers or the transfer of content between computers is merely what computers do and does not change the analysis. Although the preamble of claim 1 also requires a facilitator, the specification makes clear that the facilitator can be a person and not a machine. Thus, nowhere does the ’545 patent tie the claims to a novel machine. The claims of the ’545 patent also fail to satisfy the transformation prong of the machine-or-transformation test. The method as claimed refers to a transaction involving the grant of permission and viewing of an advertisement by the consumer, the grant of access by the content provider, and the exchange of money between the sponsor and the content provider. These manipulations of “public or private legal obligations or relationships, business risks, or other such abstractions cannot meet the test because they are not physical objects or substances, and they are not representative of physical objects or substances.” We therefore hold that the claims of the ’545 patent do not transform any article to a different state or thing. While this test is not conclusive, it is a further reason why claim 1 of the ’545 patent does not contain anything more than conventional steps relating to using advertising as a currency.
The majority panel here was written by Judge Lourie and joined by Judge O’Malley. Judge Mayer (who replaced Judge Rader on the panel) wrote in concurrence to emphasize the following three points:
First, whether claims meet the demands of 35 U.S.C. § 101 is a threshold question, one that must be addressed at the outset of litigation. Second, no presumption of eligibility attends the section 101 inquiry. Third, Alice Corporation v. CLS Bank International, for all intents and purposes, set out a technological arts test for patent eligibility.
Although Judge Mayer’s conclusions here veer somewhat from the patent eligibility doctrine, he provides a roadmap for district courts to use the doctrine in deciding Section 101 cases going forward.
Oh look, someone talking sense:
link to iam-magazine.com
Nonsense is more like it. What this author is basically arguing is that it’s okay to break the law and discriminate against one class of patents as long as you leave mines alone.
He wants to throw business methods under the bus as long as long software is allowed to ride in the front of the bus.
But the constitution applies equally to both. Business methods are within the useful arts just as much computer science. And if this author thinks the anti patent activists are going to be appeased and stop at taking away the rights of business method inventors he is naive at best. I say we must unite to protect all our rights. As Martin Luther King Jr. said, injustice anywhere is injustice everywhere!
I have a question for a smart and knowledgeable US patent attorney.
When is it legal for a judge to change an Inventors invention?
It seems that everyone agrees that Judge Lourie changed Ultramercials invention at least at the conceptual stage. This was done presumably to make it possible to make the invention fit within the Lourie analytical framework to declare the invention as abstract and therefore non statutory subject matter.
I don’t know what the law says about such an action but it certainly does not seem fair to the Inventor. Everyone knows that the concept of an Invention is first conceived and invented by the Actual Inventor. And a judge, even if a SME, in the field, should NOT be allowed to change that! Plus, in the instant case, the district court and the inventor had already agreed on the concept of the invention, and the claims were rejected for being directed to that abstract concept. So why was it even necessary for Judge Lourie to change that concept in order to uphold the lower courts ruling?
You often hear about the so called baneful effects of the “draftmans” art but this judiciary sleight of hand is for more insidious in my opinion.
After all, what would prevent a judge like Mayer for example, that has an ideological bent against software and business methods, to go aboutchanging everyone of those patents so that the claims can be declare as directed to a concept and held as an abstract idea.
Such a power by the Federal court has never been sanctioned by the Supreme Court, and completely overrides the Constitutional power granted to Congress to write the patent laws.
It is always legal to perform the two part analysis required by Mayo. This will usually requiring ignoring some of the fluff an attorney added to their abstract idea to get allowance.
Far too dismissive Go.
You obviously did not identify enough with your clients during your too short sojourn into the practice.
First of all, the two step analysis in Mayo does not involve ignoring elements in a aim. Besides, Lourie did not perform the two part analysis required by Mayo. In step two he is required to determine if the concept ( or other Court created exception) was “Integrated” to the point the claims did not preempt the concept.
Remember, according to the Supreme Court of The United States in Mayo, this ( Integration ) is why Diehrs claims were patent eligible subject matter. And nothing in Diehr, Mayo, or Alice says it’s legal for a Judge to change an Inventors invention. Remember we are not talking about ignoring parts or elements, which by itself is highly questionable, we are talking about completely changing an Inventors own concept and replacing it with a new concept of ones own choosing. So Go, can you please tell me, where in the law does it say a judge has the authority to do that?
Thank You
“In step two he is required to determine if the concept ( or other Court created exception) was “Integrated” to the point the claims did not preempt the concept.”
He did (if only implicitly) and they were not.
No, 6, he did not. Remember, the initial abstract idea agreed on by the district court and Ultramercial was, “using advertising as currency.” Lourie then superimposed a more detailed abstract idea of, “showing an advertisement before delivering free content.”
Now, my question to you 6 , becomes, Where did Lourie prove that Ultramercials claims “preempted” either of those alleged abstract concepts?
If you can’t provide an answer I expect you to admit you are wrong and to withdraw any 101 rejections you may have using the same erroneous analysis.
Thank You
Can someone point to me where Dennis discusses the Court’s finding of “novelty in implementation” which the Court concluded was insufficient? I can’t tell if they found novelty (but found obviousness) or if they did not find novelty to begin with.
I assume “novelty in implementation” is part of the “ratio decidendi”… since it is touted in Dennis’ “headline”.
All I can find is in the quote from the court:
“any novelty in implementation of the [abstract] idea is a factor to be considered only in the second step of the Alice analysis. . . . [And, the Internet] is a ubiquitous information-transmitting medium, not a novel machine.”
Not a novel machine… To me this is not 1. a finding of “novelty of implementation” that 2. the court went on to say was insufficient to “overcome Alice”…
I can’t find what the headline is saying. Help please?
Perhaps my logic or precision of legal analysis is lacking.
Look at the fist sentence of the first quote in the post.
“We do not agree with Ultramercial that the addition of merely novel or non-routine components to the claimed idea necessarily turns an abstraction into something concrete.”
The Court seems to pronounce that novelty in implementation of an abstract idea is insufficient to turn the abstract idea into something concrete, i.e. something non-abstract. This in and of itself makes no statement about the implementation itself.
What I do not see is the court saying no novel implementation of an abstract idea could involve something which passes the second step of the Alice test. i.e. if the implementation is non-ubiquitous, non-routine, qualifies as “something more”, unobvious etc.
I see that this case is an *example* of a particular novel implementation of an abstract idea which was insufficient to overcome Alice, not a pronouncement that all novel implementations of abstract ideas are insufficient to overcome Alice, which I think is implied by the headline.
My apologies, please ignore this… indeed the logic is faulty.
Feel free to remove entirely… grey matter glitch.
Sorry but according to this opinion’s logic carried through, your gray matter has nothing to do with thinking. You think in the ether.
Anyone see Greg A’s email on Ultramercial III today?
Stunningly scathing on our out of control judiciary.
And yes, attorneys do have a duty to challenge judicial runaways as we owe a duty to the constitution that cannot be quieted when it is the judicial branch that is out of control. Black robes do NOT make unthinking obedience demanded as a matter of course. Such would place one branch above the law, above the constitution itself, would celebrate a false infallibility (and just because such would align with a desired ends, we owe a duty NOT to ignore the means).
Expect worse anon. These Google judges are barbarians and Lourie is a very narrow thinker that who h@tes information processing patents and doesn’t seem to understand them. He thinks in terms of the smelly arts. Never heard a judge on the fed. cir. be so unprofessional as Lourie is in oral arguments. The law means nothing to this bird.
Anyone see Greg A’s email on Ultramercial III today?
Stunningly scathing on our out of control judiciary.
So what.
On the subject of computer-implemented methods, I want to know what readers think, going forward from now, about relative patentability standards, in the USA and in the ROW.
I suppose that nobody was much surprised that, until now, the USA would issue what ROW would not. The USA, world-leading in software and selling, felt its national interest lay in an expansive notion of patentability.
But now it’s different. Various US-based commentators are gnashing and wailing (and some are rejoicing) supposing that the USA has suddenly got more restrictive than the ROW. Perhaps what is perceived as the USA’s aggregate national interest has changed?
Are these commentators deluding themselves? Or is it a real possibility that the USPTO will from now on be refusing what the EPO will allow? What do you say?
Max, give us one example of what Europe would allow that the US would not.
Technical character? New? Enabled? Solves a technical problem in a way that was not obvious? So, patentable? In Europe?
1. Beauregard: Claims to a carrier bearing software. That’s the article of commerce that is traded. Don’t you need a claim to it?
2. Nuitgen: A signal. I’m not a telephony geek but I suppose they are the ones who mostly seek Signal Claims.
Nuitjen is indeed the law here, but anyone with even a high school education in physics should be able to see what a groundless decision that was.
To rest on that decision, one must deny the reality of physics, and ignore what one sees when one looks up into a clear night sky (re: the idea of “transience”).
“The USA, world-leading in software and selling, felt its national interest lay in an expansive notion of patentability.”
I don’t know which people in the USA are included here, but retailers, Wall Street, and the software industry never wanted the patent system to colonize and exploit their industries.
Retailers are a key force pushing for patent reform and are united fiercely to reduce the scope and impact of the system on their business. Wall Street got the CBM program, their champion Schumer as a leader for reform, and de facto exclusion of various financial methods as presumed prior art. The people who do the actual selling fear, despise, and resist the expansion of patents into their business and certainly don’t see it as in the national interest.
Software writers are even more opposed to patents. Some of the software businesses have been co-opted by the patent bar, but most are fiercely opposed to expansion of patents into software. The overwhelming preference of the industry is that software should not be subject to restrictions and monopoly by the patent system at all.
What the USA does have is the world’s most ambitious and creative lawyers. The patent bar and its captive courts and PTO have been the driving institutions in the world’s most cancerous patent system.
And that clever bar hasn’t gone away. I expect that the patent abuse business will find a way to make progress against innovation again and the USA will continue to be the easiest place to get bad patents. It just won’t be quite as easy as before.
I disagree that the software industry dpeanut want patents.
Most programmers don’t want software patents.
Most CEOs of software companies want patents.
Where is the difference from?
The CEOs know that they will be trampled without the patents. The software engineers are ignorant and just want freedom.
Colonize and exploit…
Yet more empty emotion laden rhetoric from our resident slashdot exchange student.
Lourie says Ultramercials claim, “only describes the abstract idea of showing an advertisement before delivering free content.”
If that is true why didn’t the court invalidate the claims under 102 as anticipated by every television network, show, or movie ever broadcast or shown?
Just as important, why didn’t the examiner reject for just such a reason?
In addition, if Lourie is correct and the claim is directed to only the abstract idea of showing an advertisement before delivering free content, what is the stated problem and solution?
After all, Judge Lourie ruled that certain non abstract elements in the claim were mere extra solution activity. In order for that to be factual, there would have to be an Initial problem and solution to begin with. Yet I see no such identification in Louries analysis. Can someone please point this out to me?
Thank you.
And perhaps most pertinent, if the purpose of invalidating the claim is to keep the abstract idea of “showing an advertisement before delivering free content” free for the public to use, why ignore/filter/dissect those elements of the claim that narrow it, and in effect accomplish just such a result?
Hmmm…now I am beginning to see why this panel has ignored the Supreme Court’s “Integration Analysis”, it would make it too difficult to accomplish their agenda.
To clarify, I don’t understand why Lourie ignored those elements that narrowed the claim and in effect prevented it from covering an abstract idea.
Anyone have an explanation?
Because they only prevented it from covering a more broad abstract idea. Instead it covers a more narrow abstract idea.
Well, the more narrow abstract idea, ( created by Lourie ) still required Lourie to dissect/ignore/filter the non abstract elements so that the claim could be directed to the abstract idea. So my question remains, if the non abstract elements prevented the claims from covering/preempting the abstract idea, why ignore those elements?
Yep. Why bother reading the claim – when the analysis is ‘only’ or ‘just’ or ‘gist’. Totally ipse dixit.
More importantly, why did the PTO issue this patent? Why does it issue so many poorly examined patents?
And could we please follow Mayer and abolish the presumption of validity now that we know there are so very many invalid patents issued?
“More importantly, why did the PTO issue this patent?”
Good question Owen. Maybe because an ethical and law abiding examiner followed the Supreme Court’s precedent and considered the claims as an “Integrated” whole and found them eligible subject matter. Followed by searching the prior art and finding no reference that performed the method steps in the same exact order and time as Ultramercial , thus leading to a conclusion of the invention being novel and non obvious. In other words, the examiner followed the law.
“please follow Mayer”
For at least the reason that our constitution provides authority solely to Congress to write patent law.
That’s a rather important point.
“Poorly examined” is not such. The PTO decided in the mid ’90s to remove a reference to Hotel Security from the MPEP. That lead the way. Shortly thereafter, the Fed. Cir. gave us State Street Bank.
And the rest is history.
One might as who decided to what in the PTO in those days, because they are the people responsible as much as it was Newman in Schrader and Rich in State Street Bank.
Even under State Street, why would the PTO issue Ultramercial’s patent? There’s an easy case under §103 and probably even §102 if you look hard to block a patent as trashy as that. That’s what I meant by poor examination.
We hardly ever see the abstract patents that could pass §103 litigated. Probably that’s a combination of being too specific to cheat whole industries and the judicial activist de facto abolition of §103 by the CAFC.
He also re-wrote the claim. Little Lourie bird is a bad actor. I wonder how people like him respond to the former CEO of HP’s article saying–gee these patents actually help a lot.
Or how someone like him responds to going to the EPO standard of technological arts when Europe is terrible in software. We are number one by far with 20 years of software patents.
Crazy making. I think it all comes down to not having people in the judiciary that have experience with patents. Lourie has a smelly arts background. I don’t think there is one judge on the fed. cir. that has experience with software. Chen maybe a tiny bit. Obama loads it up with people that don’t like science.
Actually, Europe is better than the US currently.
India better yet.
Better yet – for the Big Corp 1%er owners.
For the coders, not so much.
You planning on emigrating, jesse?
Yet, the EU still does more coding in schools than the US.
And I had thought about it.
Wow. Gee. That is relevant how? What are the sizes of the software industry in the US compared to the Europe?
Yeah ankle biter goes away.
The US capability in software is shrinking.
Much of it outsourced overseas – thus even less local understanding.
According to reports, only about 1 million people in the US work in in the software industry.
India has twice that amount.
China has about 5 million.
So yes, the US is at a rather severe disadvantage now.
Oh, and Europe is still smaller than the US, but growing rapidly.
You know your nonsense is getting old. You are just a rubbish boy. I am not going to go get the statistics to make you look ridiculous, but your assertion that Europe and India have better software industries than the US is nonsense.
And boy, how about the my chair is math. You can’t answer that can you because your silly little assertion that computers are math is exactly the same.
Really, Dennis you can’t have people that just type in two sentences of nonsense in response to everyone of my posts. It is harassment. This jesse boy never says anything itself. It just gets on here and floods the board with its crxp.
Now boy, go get the statistics and figure out that you are wrong and try to answer my chair is math assertion. Scxm.
” your assertion that Europe and India have better software industries than the US is nonsense.”
I didn’t see him make that assertion.
I think he was talking in total numbers of people employed in various professions. You do know india has around 1 billy people over there right? China being at 1.3. US has like .3. If his numbers are correct that doesn’t necessarily make their industries “better”.
“Really, Dennis you can’t have people that just type in two sentences of nonsense in response to everyone of my posts. It is harassment. ”
U funny bro. Just because you hit the ceiling doesn’t make a post harassing.
Oh boy troll 1 comes to the defense of troll 2.
>Actually, Europe is better than the US currently.
>India better yet.
In context of my post, since little jesse boy feels compelled to respond to each and every one of my posts, it means exactly what I said it means 6.
My bad NWPA, that part was so far up the thread. Either way, it appears that he is talking about in terms of the # jobs provided.
It’s not the size that matters.
If only 1 in 10,000 is exceptional…
then having only 100 exceptional get dwarfed by the 500.
The advantage size has is that more people gain the experience.
For the last 10-15 years the US has been exporting knowledge faster than it can create it.
China already makes nearly all of the US computer technology, and surpassed it several times in capability.
It won’t be long before the US is held hostage to that fact.
Jesse: that is factually ridiculous.
Really?
Then why all the fuss over H1Bs?
And outsourcing development overseas?
You do realize that over half of the patents being granted are of foreign origin as well. The number I recall was 52%…
So not invented here is becoming the norm – even if they can’t be patented in their home country.
Then why..?
Um, you have already been given the answer: $ (for the Big Corp 1%er owners).
You are doing that monologuing thing again
The ever-present bugabo “big corp”. Always blamed last. Even if they’d put no effort in you’d still use them as a last resort “reason”.
Yet another example of why you would be unable to survive in the real world. You were born for government work.
“Yet another example of why you would be unable to survive in the real world. You were born for government work.”
Yep failure to blame big corp is “an example of why I would be unable to ‘survive’ in the ‘real world'”. Because paranoia about big corp is a pre-requisite to survival.
Yes, I agree that those are the owners of most of the patents… even those used to bludgeon the small companies with their “patents”.
>bludgeon the small companies with their “patents”.
funny how little minds like yours haven’t figured out who the real en#my is yet. The “reforms” to the patent system all go for the big corp. What’s happening is you are seeing the patent system be hijacked.
It did need reform. But what we have is a dismantling and repurposing.
No… the real enemy are those that want to strangle innovation.
A program is just an expression of math. It is those mental steps that a person has to take to solve a given problem.
Just an expression of abstract thought.
Something that can’t be owned that you want to own.
jesse,
You are not thinking critically again.
“No… the real enemy are those that want to strangle innovation.”
Who stands to gain more from strangling innovation – the established Big Corp entity who can compete better on non-innovation factors or the start-up who needs protection from those same non-innovation established entity factors?
All that you are doing is repeating the mantra that you have been fed.
Which is just as good a reason to not allow software patents.
Works both ways, as neither can bludgeon the other.
jesse, you are still not thinking and still doing that monologuing thing.
Read my post at 8:23 am – not allowing patents benefits the established MORE than the start-up. Not having patents strangles innovation because the established have much better positions in the non-innovation factors.
You are avoiding the logical conclusion here.
It does no good at all except prevent people from creating decent software.
You are avoiding the fact that those “entrenced” are only maintained due to their control.
And that does not help the startups – even though they might actually have a patent. They still get squashed.
so you’d trade “might get squashed even with a patent” to “guaranteed to get squashed” and call that an upgrade in position for startups? You can try that, but I’m not sure you’ll have many investors bite. Good luck with that.
Tend to agree. But . .
Mayer: Because the PTO has for many years applied an insufficiently rigorous subject matter eligibility standard, no presumption of eligibility should attach when assessing whether claims meet the demands of 101.
OK, just change “validity” to “eligibility” and you’re good to go b/c there is no statutorily presumed eligibility. Nice move.
What this means is there is no presumption of validity for any patent — past, present, or future — since presumed validity subsumes presumed 101 “eligibility.” Mayer thusly re-writes Section 282 and abrogates the separation of powers doctrine all in one sentence.
Patent holders, the value of your portfolio just took a beating. Defense lawyers, start your engines.
But if the PTO (and courts, mostly the courts) stinking up the place since 1952 is sufficient reason to obviate the presumption of validity w/ respect to 101, then double-ditto for 112, and triple-ditto for 103. (102 has been comparatively stink-proof b/c it’s the only major section of the Patent Act anyone can actually understand. Parts of it, anyway.)
Bingo.
And yet, supposed attorneys here are cheering those means.
…maybe we should just all [shrug] and move on…
/sardonic bemusement
It’s not logically possible to not agree with Mayer, assuming the facts. You cannot even introduce the fact that, for example, someone has been found civilly liable for something when its a criminal trial, because the standard applied by the first jury (preponderance) is different from the standard applied by the second (reasonable doubt). There’s no rational basis for assuming anything (be it validity or eligibility) if the standard has changed from the time it was last examined.
All 282 requires is that the initial burden is on the defendant. It does not state what is necessary to overcome that burden, and the argument that the wrong standard was applied, together with reasoning as to why the correct standard would come to a different result, would be sufficient in this case as it would in any other case where the burden is similarly situated. You’re confusing a weak standard with there being no standard at all and trying to make a constitutional issue out of something that is routinely done in pretty much every area of law.
Mayer’s reason for no presumption does seem quite ridiculous. It could equally apply to 102 and 103, at least in certain art units.
I always though the reason for no presumption is because section 101 has been ruled an issue of law. Section 282 is an evidentiary presumption that is only applicable to factual issues. See footnote 10 in the recent Nautilus Supreme Court decision.
Slotguy, do you think this claim passes the Alice test?
31. A technique for estimating the most likely sequence of multi-dimensional signal points to have been sent via a channel from a transmitter of the kind that causes said multi-dimensional signal points to carry information about said sequence based on state transitions of a finite state device, said multi-dimensional signal points being drawn from a multi-dimensional constellation partitioned into multi-dimensional subsets corresponding to said state transitions, said multi-dimensional constellation being a concatenation of constituent constellations having fewer dimensions, each said constituent constellation being partitioned into constituent subsets, each said multi-dimensional subset consisting of multi-dimensional types, each said type being a concatenation of said constituent subsets, each said multi-dimensional signal point being a concatenation of a plurality of constituent signal points of fewer dimensions, said technique comprising
determining the distances between each received constituent signal and the nearest constituent signal points in the corresponding said constituent subsets,
determining the distance between each said received multi-dimensional signal and the nearest multi-dimensional signal point in each said multi-dimensional subset based on a combination of said distances with respect to constituent subsets corresponding to said multi-dimensional subset, and
determining said most likely sequence based on the distances between each said received multi-dimensional signal and the nearest multi-dimensional signal point in each said multi-dimensional subset.
link to google.com
This is the original (I believe) pioneering Wei Patent. Without question a very important advance in telecommunications. If this can’t pass the Alice test – Houston we have a problem.
If this can’t pass the Alice test – Houston we have a problem.
You’re missing the point.
Please try harder.