Patentlyo Bits and Bytes by Anthony McCain

187 thoughts on “Patentlyo Bits and Bytes by Anthony McCain”

1. 8

   I have to say how much I am enjoying the banter at #7 in this thread between MM and Les, including this from MM:

   “there is a huge difference between “software” (the actual instructions that actually work to provide functionality in a specific operating system) and a patent claim that that purports to cover software. ”

   In fact, reading MM helps me to see the legitimacy of the UK position on eligibility under the EPC, that it is preferable to do it under 101 (Art 52, EPC)than (as is done at the EPO) under 103 (Article 56, EPC).

   In fact, it’s only because the EPO’s has its well-established, brusque but fair, unassailanbly even-handed and objective Problem and Solution Approach to obviousness that at the EPO eligibility can reasonably be left until the time comes to look at patentability under Art 56, EPC. In all other jurisdictions, everywhere where EPO-PSA is not understood (or indeed wilfully misunderstood) the nettle has to be grasped early, under 101 or its equivalent.

   I look forward to more demolition jobs by MM. Instead of frothing at MM, if they can’t win the argument with him, they should use their mental energy to find arguments that better commend themselves to interested and intelligent bystanders whose only concern is the long term reputation of the patent system and its ongoing success in promoting progress in the useful arts.

   Some readers indeed plead for MM to be banned from the site. Not me though.
   1. 8.1

      “I look forward to more demolition jobs by MM”

      LOL – the empty wagon clattering along in full Echo mode.

      “if they can’t win the argument with him”

      You ASSume a conclusion not in evidence.

      “Some readers indeed plead for MM to be banned from the site.”

      You misunderstand (willfully..?) the posts calling for such. It is NOT Malcolm himself to be banned, it is his violation of the (so-called) rules and his unwillingness to be inte11ectually honest on points presented. It is his nigh gleeful mischaracterizations of law, of facts, and of what others post. It is his baseless ad hominem and his number one rhetorical t001 of AccuseOthersOfThatWhichMalcomsDoes.

      Your incesseant ig noring of what is actually said – expressly because you Belieb in the same ends that Malcolm does – shows that you have ZERO credibility MaxDrei.

      Oh, you can be “polite” as you want to be – but such sycophantic behavior is NOT something that will advance critical thinking and better dialogue here. Just the opposite.
   2. 8.2

      MM’s energy and relentlessness are admirable- I surely appreciate the effort and look forward to his deconstruction of sloppy thinkers (mine may be coming shortly!)

      I don’t agree with MM on the wrongness of patenting of logic and/or algorithms. In the information age, there are intangible inventions that amount to algorithms that are deserving of patent protection.

      However, the inability of Congress to make effective law and the inability of the courts to apply the Abstract Ideas exception properly means our patent system has responded terribly to the information age.

      I do agree the current system is nearly half grift- probably the most expensive single racket in the history of the world. The EPO is basically no better despite MaxDrei’s assertion. The EPO’s software patents are still drafting games.

      Abstraction at eligibility is a different animal than abstraction at patentaibility. Information inventions are almost impossible to examine effectively under current conditions, which thus require a far more streamlined, yet still adversarial procedure to kill grossly bad patents early in litigation.

      I lay it out in detail here: link to papers.ssrn.com
      1. 8.2.1

         Hahahaha.

         I count at least twenty errors in your Abstract alone.

         Maybe you should reconsider that lifetime membership at the Holiday Inn…
         1. 8.2.1.1

            Anon your signal to noise ratio is infinitesimal…that paper has been well reviewed by a substantial group of lawyers and law professors…but who are they compared to your towering insight into everything…
            1. 8.2.1.1.1

               You routinely throw out the signal and keep the noise, so your comment is rather meaningless.

               As to “well reviewed“, … do you mean your silly posting the item on blogs and not seeing feedback?

               Or do you mean that you actually engaged them to do a substantive review before you published? Do you stress that this was an opinion piece (your opinion) as opposed to legal writing?

               I can list the items that I found in error in your Abstract if you want. I haven’t even waded through the body of the work yet (I was not impressed enough with the Abstract to continue).
               1. 8.2.1.1.1.1

                  “anon’ I can list the items that I found in error in your Abstract if you want.

                  I’d like to see the list.
                  1. 8.2.1.1.1.1.1

                     LOL – lots of answers (inte11ectually honest ones) that I would like to see from you.
      2. 8.2.2

         Martin, you write:

         “…the current system is nearly half grift- probably the most expensive single racket in the history of the world. The EPO is basically no better”

         Could you elaborate on your “EPO no better” assertion? I’m curious.

         As to your “drafting games” comment, on what’s patentable at the EPO, do you see any parallel with the drafting games that tax lawyers play, at the interface between avoidance and evasion. I mean, if your patent attorney chooses to sail your claims close to the wind, you will inevitably experience luffs. What is it at the EPO, that goes beyond the inevitable luffing that you get when you go right to the edge of the wind? Isn’t it the job of the conscientious patent attorney to claim all he or she might be able to get for you? If so, isn’t it perverse to complain when you suffer the inevitable luffs which that zealous drafting inevitably brings about?

         Or are you asserting that the wind direction at the EPO is variable, even skittish, as bad as at the USPTO, making it impossible to sail any particular line? Is that what your patent attorney tells you, or do you know it for yourself? Seriously, I’m curious.
         1. 8.2.2.1

            Mr. Snyder can supply his own answer, but the scrivinings of “per se” and “as such” clearly establish that the Gist of an invention and “drafting games” is very much alive at the EPO.

            As to grift, well, there are different types of that, and the annual pay of “maintenance fees” – before grant is one variety, and for another, just take a look at the leadership of the organization. One cannot go a week at the IPKat without being deluged in a level of grift that I would daresay far exceeds the USPTO (at least in its brazenness).

            Or are these types of things not to be discussed in “polite” company?
         2. 8.2.2.2

            Max did you read the paper?
            1. 8.2.2.2.1

               Not yet Martin. Till now, only the Abstract. But I infer from your question that in the Paper I will find your answer to mine above. So I’ll read it. Thanks for writing it.
               1. 8.2.2.2.1.1

                  OK, I skimmed through the text of the Paper and see that you quote from an EPO T Decision. You suggest that the notion “technical” is not sufficient to define “abstract”. I agree.

                  But when it comes to EPO jurisprudence one must bear in mind that it is a Civil Law jurisdiction which has no notion of Binding Precedent. Instead, it feels its way towards an understanding of the ambit of “technical” by rolling out a carpet of Decisions, each of which borrows from earlier Decisions but only to the extent that it finds them useful and persuasive. With over a thousand such Decisions per year, it is a Darwinian evolution of the fittest line of legal reasoning (on what constitutes “technical”). Those who routinely prosecute software inventions at the EPO to Board of Appeal level do have a good feel for what will fly and what will not.

                  When the EPO Boards of Appeal write their Decisions, they are not trying to help define what is “abstract” so it is futile to look at them for such a definition. Do you have anything more to say, in answer to my question at 8.2.2 above? I assume not.
                  1. 8.2.2.2.1.1.1

                     Thanks for taking a look Max. Sure I have something more to say.

                     When you write ” Those who routinely prosecute software inventions at the EPO to Board of Appeal level do have a good feel for what will fly and what will not” you encapsulate the exact problem, on both sides of the Atlantic: judges and examiners “know it when they see it”.

                     There is a continuum in the law between objective easy cases, and subjective subtle cases.

                     Information inventions derive much if their utility and economic value from the ease and speed- near infinite ease and speed- by which they are iterated and applied to different environments. That variability means that conventional examination is impractical or impossible; no examiner could find even a fraction of the applicable prior art references (within or without the patent corpus), and there will be a vast range of relationships between a given invention and the identifiable prior art, the state of the art, and perceptions of novelty and obviousness.

                     When you have an invention that is somewhat obvious, somewhat novel, and somewhat described, the total effect may be unpatentable, but not enough legally in any one aspect to sustain a rejection, especially at prosecution, which is only a quasi-adversarial process because the actual adversaries – those members of the pubic who will be excluded- yet to be identified.

                     That is where “abstraction” at patentability arises, and it happens in the US and the EPO, by whatever name you wish to call it.

                     A subjective judgment is inescapable for some inventions, and a high proportion of information inventions. Eligibility, on the other hand, should be as objective as humanly possible to avoid the later expense and difficulty inherent in arriving at a justiciable result of a subjective decision, which cannot be avoided in the Information Age.
                     1. …

                        Martin, I have the feeling that you are not familiar with the debate between the EPO and the UK about how to filter under the EPC for eligibility. But do correct me if I am wrong.

                        You see, the UK courts level against the EPO the charge of “intellectual dishonesty” when it comes to assessing eligibility. Here on these boards, MM would unhesitatingly agree while Night Writer would support the EPO’s stance.

                        For the EPO, any subject matter that has “technical character” is instantly eligible. If you claim “A digital data processor” it has technical character and so is eligible.

                        How does the EPO defend its position, so generous to the claim drafter? By asserting that eligibility is something independent of time. Subject matter absolutely is or absolutely is not within the useful arts, irrespective how far the state of the art had advanced up to the day before the filing of the patent application. Conversely, novelty and non-obviousness must be strictly judged relative to that state of the art.

                        Now convince me you know how the EPO Problem and Solution Approach works, Art 56 EPC, to distinguish between what’s technologically clever, as opposed to cleverness outside the ambit of the useful arts, and we can then debate further whether or not the EPO is any less subjective than the USPTO. EPO-PSA is a TSM approach, as you surely already appreciate, and TSM is a closer approach to an objective analysis of what’s obvious than any “I know it when I see it” approach, don’t you agree?
                     2. I’m certainly less aware of the nuances of the eligibility / patentability controversy in the EU than in the USA.

                        I have read enough cases and commentary to see that the same kinds of fundamental disagreements exist in relation to information inventions and the subjectivity of terms like “technical character” and “industrial application”

                        I am aware of Article 52(d), which forbids patenting of information, regardless of novelty, utility, technical character or industrial application. I think that’s not sustainable in the Information Age, just as it’s not sustainable here in the USA.

                        At some point, edge cases arise where patent rights bump against human rights of expression and association- those cases are more likely in an information context, and well before that threshold, there is fertile ground for rent-seeking.

                        I think the US understanding of anything under the sun, suitably adapted, would be superior to the current EPO understanding, but that the current EPO understanding is superior to the current situation in the US.

                        In both instances, to encourage innovation, information inventions that are new, non obvious, and fully described should be allowed, but inventions that result in human consumption of information should not be allowed.

                        In both instances, early resolution of patent litigation, esp. for low damage amounts, must be accommodated both for inventors and smaller enterprises.
                     3. Martin, you mention Art 52 of the EPC. Here is a Link:

                        link to epo.org

                        from which you can see that there is no prohibition on bare “information”. Art 52(2)(d) prohibits patenting “the presentation of information” which is more limited. And Art 52(3) constrains the prohibitions of Art 52(2) to the thing “as such” ie exceptions to eligibility must be construed narrowly.
                     4. Martin, you say that it is not sustainable, in the Information Age, to forbid the patenting of……information.

                        Are you serious? You think it should be possible to patent information as such? I find that hard to believe. Perhaps you want to qualify that statement?
                     5. Yes Max, I am saying patents should be allowed on information, with major limitations.

                        Consider this patent, invalidated under Alice, that comprises nothing more than a clever information technique. In my opinion, it should have been eligible and very likely patentable.

                        link to patentdocs.typepad.com
                     6. (pssst, information technique is NOT information per se)

                        See also post 8.2.2.1.

                        Note as well how the fawning obsequious doting of the echo MaxDrei to his “master” Malcolm hides some critical differences of view.

                        Maxdrei uses the term “inte11ectually dishonest” in his comment concerning the competing views of the UKIPO and the EPO, and seems to be on the side of the EPO (while placing Malcolm on the side of the UKIPO), but you would never be able to tell that the two have different views because “politeness” prevents any meaningful contrast to be seen between those two on these boards (and the fact that the two share a desired Ends only makes the echo chamber effect even more pronounced).
                     7. The result of the method is information- there is no new structure or change of matter, and the method itself is a manipulation of information. It’s likely a presentation of information under the EPO rules- at the least its an algorithm.
                     8. Mr. Snyder,

                        Manipulation of information is not presentation of information.

                        You really have to stop closing your eyes to these nuances and pretending that they don’t exist.
   3. 8.3

      Well Max, If you think my position was demolished, I will ask this question of you, since your hereo did nothing but ignore it:

      I ask again, what were the unexpected results involved in this mouse trap:

      1. In an animal trap, the combination of a spring actuated jaw, an arm projecting from the latter, means for engaging said arm when the jaw is set, such means operable to disengage said arm by the lateral movement of the latter, a rockable member operable to bear against the extremity of said arm and laterally move the same, and a bait holding trigger hinged on an axis parallel to that of the jaw, the inner end of said trigger being connected with said rockable member, and rocking the latter when the front end of the trigger is depressed.

      link to patents.google.com

      or more recently in this one:

      1. An improved trap for a mouse of the type having a baseboard, a U-shaped jaw member that is pivotally mounted on the baseboard for pivotal movement from a cocked position to a sprung position, a bait pedal that is attached to the baseboard, and a trigger mechanism that has a longitudinal axis and which is operatively attached to the bait pedal and when the U-shaped jaw member is in the cocked position thereof the trigger mechanism is operatively connected to the U-shaped jaw member, said improvement comprising the trigger mechanism allowing the U-shaped jaw member to achieve the sprung position thereof only when the trigger mechanism is rotated about the longitudinal axis thereof, wherein the improvement further comprises the bait pedal being a plate, wherein the improvement further comprises the plate having an end that is furthest away from the trigger mechanism and which is flexibly affixed to one end of the baseboard, wherein the improvement further comprises the plate having a step that is disposed under the end of the plate so as to create a space between the baseboard and a remaining portion of the plate, wherein the improvement further comprises the trigger mechanism having a tube that is affixed longitudinally at the other end of the baseboard, wherein the improvement further comprises the trigger mechanism having a rod that extends longitudinally movably and rotatably through the tube and has a proximal end that is disposed at the other end of the baseboard and a distal end that is operatively connected in the space.

      link to patents.google.com

      Or were these both obvious “junk patents” at their respective times?
      1. 8.3.1

         Les I’m tempted also to ignore but as you direct your question to me personally, and as you ask so nicely, I feel obliged to respond.

         Can you pin me as one who asserts that without an an “unexpected reult” a claim is not fit to issue? I hope not because that is not my position.

         As you know, on the enquiry whether subject matter is obvious, I’m a fan of the EPO’s TSM Approach which toggles between technical features recitred in the claim and technical effects delivered by the claimed feature combination.

         Just as it is futile to enquire whether a trademark is “descriptive” till you know what goods (or services) are named in the application for registration, so it is futile to enquire whether or not any particular claimed subject matter is “obvious” till you know what the claimed subject matter purports to achieve. Is ORLWOOLLA descriptive as a trademark? It depends whether it is in respect of awls or pullovers, I would say. Is “Molecule X” obvious? It will depend on what you can achieve with that molecule. In chemistry the unexpectedness of the performance of a molecule often determines its obviousness at the EPO. But it’s different in engineering, where results achieved by a particular combination of technical features are not expected or unexpected. That’s why I’m so unhappy when people invoke “predictable” when debating obviousness in the engineering arts. It’s not fa1r to deny patentability just because, with hindsight, the result achieved has become “predictable”.

         Does that help?
         1. 8.3.1.1

            “Does that help?”

            No.

            MaxDrei, your attempt here to draw a difference between you and Malcolm misses the point that Les starts out with: your sycophant style of echoing Malcolm and Malcolm’s so-called “demolishing” of others (at post 8).

            What point do you wish to make with your adulation of Malcolm, when time and again, your “differences” simply become lost – and of no meaningful accord, because of your fawning desire “to be polite?”

            So, no – your attempt is NOT helpful. DO you place yourself in the group “demolished?” Or does your attempt at being obsequious “excuse you” from that characterization?

            (Plus, you yet again mistake chemistry as a non-engineering discipline – bizarre that you keep on making a distinction without a difference for that art field)
         2. 8.3.1.2

            “Can you pin me as one who asserts that without an an “unexpected reult” a claim is not fit to issue? I hope not because that is not my position.”

            Well Max-

            Who could hang a name on you?
            When you change with every new day

            You indicated you shared MM’s views as expressed in thread #7… and that MM “demolish” my argument.. so….What did you mean, if not that you shared the opinion of “one who asserts that without an an “unexpected reult” a claim is not fit to issue?”
            1. 8.3.1.2.1

               Les, decisive is the difference between a combination and a mere collocation. The former can be inventive, the latter not.

               MM chooses to see that as a requirement for a result that is “unexpected “. Others might see it as a requirement for synergy. The EPO Approach avoids any such “magic word ” test because the EPO Approach works just as well for the predictable world of engineering as for the unpredictable world of experimentation in chemo/bio.

               I happen to think that these are all different ways to say about obviousness something which is in the end much the same in substance. This is how I reconcile my earlier postings.
               1. 8.3.1.2.1.1

                  MaxDrei,

                  You are STILL not addressing the actual point made by Les.

                  ALL that you are doing is further making yourself out as an Echo by continuing to (here) say that you disagree with Malcolm, and yet – above – you are cheerleading him on and labeling his C R P as some sort of “demolishing.”

                  Your overweening “politeness” shows you to be a spineless fraud. That my friend is a logical conclusion based on your very own decisions on when to “speak up,” and on what you decide to “speak up” about.

                  Why the “celebration” of someone with whom you do not agree? A mind, open to understanding, wants to know why the dichotomy from MaxDrei?

                  It’s not like this (your echo) has not been raging for several years. It’s not like your echoing – and your gen eral posts show a sustained LACK of critical thinking and a mere tendency to align with those with whom you share a common desired ends.

                  So why MaxDrei? Why the celebration?
                  1. 8.3.1.2.1.1.1

                     (ps, blandly stating that you DO have a difference does NOT reconcile that selfsame difference and your choices – I do hope that you have enough grey matter to understand that)
               2. 8.3.1.2.1.2

                  “Les, decisive is the difference between a combination and a mere collocation. The former can be inventive, the latter not.”

                  Huh? What has that to do with the “unexpected result” of the claimed mouse traps?
                  1. 8.3.1.2.1.2.1

                     What Les? Everything, that’s what. A collocation delivers as result the sum of its parts, no more and no less. In contrast, a genuine new combination delivers a result that is more than the sum of its parts. MM calls that a result that’s “unexpected “. For deciding obviousness we should ask ourselves whether the state of the art predicted that result, for the collection of technical features in the claim at issue. I say: No prediction, no obviousness.

                     Predicted? Predictable? Reasonable to expect? Unexpected? Discuss!
                     1. …

                        “ A collocation delivers as result the sum of its parts, no more and no less

                        You have messed up two different concepts MaxDrei:
                        collection versus mere aggregation.
                     2. …

                        You have also messed up “expected (versus un-expected) and synergistic.
                     3. One can actually “expect” a synergistic effect….
                     4. The “use over time” graph for synergy is interesting….:
                        link to google.com
                     5. LOL –

                        The filter blocks the “G” word…

                        The “use over time” graph for synergy is interesting….:

                        https://www.

                        YY.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=define%3A%20synergy

                        Replace the YY with the well known search firm…
                     6. …

                        The state of the mouse trap art didn’t predict that this particular device with trap mice?

                        Ok…

                        But unfortunately, the operative would is “predictABLE” and in hindsight everything looks to be and is easily alleged to have been predictABLE.

                        MM would say that the mouse trap was predictable, if he dared answer the question.
                     7. Les, that each element of a collocation will do what it does (whether adjacent the other elements of the collocation or not) is predictable. That a new combination (the elements of which are busy interacting with each other) will do (in combination) what the patent application teaches that the new combination does, and in the absence of the inventor’s teaching, is not, in the same way, “predictable” from the state of the art. MM would agree, I fancy.

                        Do I make myself clear now?
                     8. MaxDrei,

                        Still – you are NOT “clear” and the dichotomy remains.

                        It is not that you are not being heard – it is that you are not answering the actual points here.
2. 7

   ILLUMINA CAMBRIDGE LTD. v. INTELLIGENT BIO-SYSTEMS, INC. (CAFC 2016)

   Non-precedential decision published today affirming the Board’s refusal to enter Illumina’s proposed claim amendments (offered in the context of an inter partes proceedings).

   Usually these are Rule 36 affirmations but the CAFC does a good job here of explaining Illumina’s failure to provide evidence of unexpected results that would prove the non-obviousness of its proposed claims.

   Given that unexpected results are rarer than chicken’s teeth in the context of the so-called “computer arts”, this kind of failure is precisely why IPRs are so successful in getting rid of junky “do it on a computer claims” and also why applicants in those arts (who are mostly unfamiliar with the law) are so disappointed by their inability to amend their claims.
   1. 7.1

      So, you’re saying that because computers exist, all software is obvious, is that correct?

      Because Eniac existed, every automated method of converting speech to text is obvious. Is that correct?
      1. 7.1.1

         Les: you’re saying that because computers exist, all software is obvious, is that correct?

         No, I’m saying that because computers are really really old and because logic is even older, pretty much every software claim is obvious crxp once you get past the lawyerly scrivening (which can take anywhere from an hour to five seconds depending on how much bal0ney was shoved into the text).

         Note that this conclusion doesn’t even get into the glaring ineligibility problems that plague nearly every “apply logic to data — with a computer!” claim that’s out there.

         Anyway, the main point is that evidence of unexpected results is completely absent from nearly all computer-implemented junk that’s out there, and for a very good reason: there aren’t any unexpected results when your claim just recites the function that is achieved by someone else’s work.

         Keep digging, guys. You’re very serious people! You’ve clearly thought a lot about all of this stuff.
         1. 7.1.1.1

            How is this:

            “Anyway, the main point is that evidence of unexpected results is completely absent from nearly all computer-implemented junk that’s out there, and for a very good reason: there aren’t any unexpected results when your claim just recites the function that is achieved by someone else’s work.”

            not contradictory to the “No.” you began your answer with.

            You seem to indicate that unexpected results are required of every invention. Your position seems to be if there are no “unexpected results” then the “so called invention” would have been obvious to one of ordinary skill in the art at what ever point the “so called invention” was made.

            If that’s the case, then if follows, does it not, that all software is obvious and no invention implemented using software is every patentable?
            1. 7.1.1.1.1

               Les: You seem to indicate that unexpected results are required of every invention.

               For claimed “inventions” that are (i) combinations of functionalities or (ii) combinations of pre-existing structures, yes, evidence of unexpected results will be required. Reasonable people appreciate that “teaching away” is just another flavor of unexpected results.

               I grant you that the PTO is incompetent at enforcing this reality, at least when it’s hand isn’t being held by an intelligent and articulate third party.

               Les: if follows, does it not, that all software is obvious and no invention implemented using software is every patentable

               You tell me. It’s your argument, after all.

               Oh, and please try to step up and remember that there is a huge difference between “software” (the actual instructions that actually work to provide functionality in a specific operating system) and a patent claim that that purports to cover software. I know it’s difficult for you to keep those two concepts separate in y0ur mind but you’re going to have to learn to do it eventually. Or you can just keep cl0wning and pretending that nobody notices.
               1. 7.1.1.1.1.1

                  “For claimed “inventions” that are (i) combinations of functionalities or (ii) combinations of pre-existing structures, yes, evidence of unexpected results will be required. Reasonable people appreciate that “teaching away” is just another flavor of unexpected results.”

                  Ok, now what ruling is it that says you need unexpected results for method claims or functionally claimed apparatuses, but not when the device is claimed as a combination of new structure?

                  And what exactly is a new structure? Aren’t mechanical things assembled from stock components? The Wright Flyer was assembled from lumber, cloth and rope. Were there unexpected results there? Not to anyone who every watched a hawk making lazy circles in the skyyyyy there weren’t….
                  1. 7.1.1.1.1.1.1

                     Les: … combination of new structure…

                     Les: what exactly is a new structure?

                     Take a deep breath, Les. When you use a term for the first time in a comment, it’s pretty much your responsibility to define it.
                     1. …

                        What was the unexpected result from the Wright Flier?

                        Answer the question. Don’t ignore the main point and deflect attention from it by going off on a tangent.

                        You referred to “combinations of pre-existing structures” and limited the ridiculous requirement to only those claims and implying that claims could be to combinations of new structures which would not have to be associated with unexpected results.

                        I asked YOU to explain what YOU meant.
                     2. As usual – won’t happen Les.

                        That’s just not on his short script.

                        All he will do is pull up to the next thread and recite the same things again from his short script in his drive-by monologue manner.

                        Happy Decade of Decadence!
               2. 7.1.1.1.1.2

                  “or (ii) combinations of pre-existing structures, ”

                  LOL – see my Big Box of pre-existing structures called protons, neutrons, and electrons.

                  What a chump.
                  1. 7.1.1.1.1.2.1

                     pre-existing structures called protons, neutrons, and electrons.

                     That claim is anticipated, “anon.”

                     Meet the best and brightest software patent defenders, folks. They’re very serious people.
                     1. …

                        LOL,

                        Once again with the short script “serious” as you once again (badly) miss the point.

                        Malcolm being Malcolm.
   2. 7.2

      Similarly, I suppose, because transistors exist, every device ever made using transistors was obvious….
      1. 7.2.1

         Les,

         Malcolm has made it a point to run away from any actual dialogue that might involve the patent concept of inherency.

         I think that he realizes how ludicrous it is to think that ALL future improvements to [Old Box] are somehow (magically) “already in there.”

         (of course, that does not stop his unethical actions, advocating with such a known flaw in his “legal” arguments…, you know, him having volunteered the admission against his interests of knowing and understanding the exceptions to the judicial doctrine of printed matter that provide that software – as a manufacture and machine component – is NOT how he would like to believe to be de facto ineligible)
      2. 7.2.2

         because transistors exist, every device ever made using transistors was obvious….

         Oh surely not. After all, if you combine a transistor with a button and
         “assign” a function to the button, that is surely a patent-worthy “innovation.”

         Everybody knows that, Les.

         LOL
         1. 7.2.2.1

            What are the unexpected results from this bicycle clamp for a transistor radio, I wonder:

            link to patents.google.com
            1. 7.2.2.1.1

               Why, that’s just logical.

               (said in the best Spock tones)

               😉
            2. 7.2.2.1.2

               Les What are the unexpected results from this bicycle clamp for a transistor radio

               Because if the PTO grants a patent, it’s non-obvious.

               LOL
               1. 7.2.2.1.2.1

                  So…no patents for simple mechanical devices like mouse traps etc., even though they can be claimed by reciting your precious objective structure, because all mechanical things don’t have unexpected results.

                  Is that your position?
                  1. 7.2.2.1.2.1.1

                     It’s nothing more than the absurd Flash or Oops paradigm.

                     Malcolm’s just too dense to even realize that.
                  2. 7.2.2.1.2.1.2

                     no patents for simple mechanical devices like mouse traps

                     News flash: “simple mechanical mouse trap” is anticipated, Les, to the extent it isn’t indefinite. Also, in case you’re one of those born-yesterday types, people have been trapping mice with “simple mechanical devices” for millenia.

                     all mechanical things don’t have unexpected results.

                     Not even sure how to parse that one.
                     1. …

                        “simple mechanical mouse trap” is anticipated, Les

                        Of course it is NOW. The point is, by your pronouncement it never would have been patentable.

                        I ask again, what were the unexpected results:

                        1. In an animal trap, the combination of a spring actuated jaw, an arm projecting from the latter, means for engaging said arm when the jaw is set, such means operable to disengage said arm by the lateral movement of the latter, a rockable member operable to bear against the extremity of said arm and laterally move the same, and a bait holding trigger hinged on an axis parallel to that of the jaw, the inner end of said trigger being connected with said rockable member, and rocking the latter when the front end of the trigger is depressed.

                        link to patents.google.com

                        or more recently:

                        1. An improved trap for a mouse of the type having a baseboard, a U-shaped jaw member that is pivotally mounted on the baseboard for pivotal movement from a cocked position to a sprung position, a bait pedal that is attached to the baseboard, and a trigger mechanism that has a longitudinal axis and which is operatively attached to the bait pedal and when the U-shaped jaw member is in the cocked position thereof the trigger mechanism is operatively connected to the U-shaped jaw member, said improvement comprising the trigger mechanism allowing the U-shaped jaw member to achieve the sprung position thereof only when the trigger mechanism is rotated about the longitudinal axis thereof, wherein the improvement further comprises the bait pedal being a plate, wherein the improvement further comprises the plate having an end that is furthest away from the trigger mechanism and which is flexibly affixed to one end of the baseboard, wherein the improvement further comprises the plate having a step that is disposed under the end of the plate so as to create a space between the baseboard and a remaining portion of the plate, wherein the improvement further comprises the trigger mechanism having a tube that is affixed longitudinally at the other end of the baseboard, wherein the improvement further comprises the trigger mechanism having a rod that extends longitudinally movably and rotatably through the tube and has a proximal end that is disposed at the other end of the baseboard and a distal end that is operatively connected in the space.

                        link to patents.google.com

                        Or were these both obvious “junk” at the time they were invented?
            3. 7.2.2.1.3

               Les, just reading the spec, the invention was in the specific clamp structure.
               1. 7.2.2.1.3.1

                  What were the unexpected results Ned? MM says all inventions must have unexpected results, else they are obvious.
                  1. 7.2.2.1.3.1.1

                     Les, I think the structure of the clamp was new. This was not simply the idea of attaching a radio to a bike. I am not sure just how KSR applies to wholly new structures.
                     1. …

                        What was the unexpected result?

                        Is it not obvious, if you want to mount a radio to something to make a clamp shape to grip the something and shaped to grip the radio?
                     2. …

                        Wholly new? Are you saying there were no bike headlight clamps before this radio clamp?
                     3. The “Gist” of the claim is “to clamp,” this is nothing more than an abstract notion of associating two things together, which is long common and this lacks anything “significantly more” than the abstract idea.

                        This is the use of the gift of the Supreme Court: an unlimited “Gist/Abstract” sword.
         2. 7.2.2.2

            What are the unexpected results associated with this transistor radio I wonder…

            link to patents.google.com
3. 6

   link to arstechnica.com

   A US Department of Commerce task force recommended Thursday that Congress alter the Copyright Act in a bid that likely would reduce financial damages for file sharing copyright scofflaws.

   The recommendations from the agency’s Internet Policy Task Force don’t call for doing away with the maximum $150,000 in damages available to rights holders per infringement. But if Congress adopts the task force’s recommendations, it’s doubtful there would be large awards, as one of the recommendations would require juries to consider a file sharer’s ability to pay and, among other things, the actual value of the works that were infringed…..

   “[W]hen the infringed work is of minimal commercial value, a lower award may be appropriate. This can help address concerns about “holders of low-value copyrights… using the threat of statutory damages to turn litigation threats into a profit center.”

   Meet the improved future.
   1. 6.1

      “Meet the improved future”

      It’s getting there anyway.
   2. 6.2

      Wonderful. You go to court, but you are only a peasant so you deserve no right. The judge will assess whether or not you are a peasant or nobility in his/her back chambers. Great progress.

      I am sure that if the founding fathers were alive today they would recommend changes to the Constitution to correct for the judicial power grabs. (And the removal of all the SCOTUS justices.)
   3. 6.3

      Improved?

      The dichotomy is stark. when rights = function(value**) and “efficient breach” is the order of the day, it is those one-percenters (and Big Corp) that benefit.

      When rights = function (law) AND the market then can decide value, AND “efficient breach” is not allowed to gain a toehold, then innovation (disruptive AND otherwise) benefit, and the established powers cannot control the game.

      For all of Malcolm’s whinging, yet again, his “view” (who needs this type of rye field protection?) contradicts his own stated preferences (the other, of course, is his odd 0bsession against software which is the single most accesible form of innovation to those outside of one-percenters and Big Corp).

      **copyright (and patent) law has never tied a right directly to a “gee, how valuable would this be in the market” notwithstanding using market impact as an indicator of non-obviousness. A subtle point that doubtless will not be understood by Malcolm.
      1. 6.3.1

         **copyright (and patent) law has never tied a right directly to a “gee, how valuable would this be in the market” notwithstanding using market impact as an indicator of non-obviousness.

         That’s ridiculous. We’re talking about damages here. Patent law has always tied damages to a reasonable royalty, which is most definitely based on “gee, how valuable would this be in the market.”
         1. 6.3.1.1

            mea culpa – yes DanH you are correct for damages.

            I am the one here that jumped too far, seeing Malcolm and expecting an anti-patent rights (as opposed to damages) view.

            Still here, the movement is against rights holders (just not in the patent sense), so, I was not too far off on the animus.
      2. 6.3.2

         “it is those one-percenters (and Big Corp) that benefit.”

         How so in the copyright context?
         1. 6.3.2.1

            You are kidding, right 6?

            Big H0llyw00d? Big Mus1c Industry?

            Hello?
            1. 6.3.2.1.1

               They (hollywood and music ind.) benefit, as in they benefit more, under “when rights = function(value**) and “efficient breach” is the order of the day,” than they do right now?

               Bro right now they get outlandish damages at the drop of a hat. I’m pretty sure they benefit much less when rights are a function of value and efficient breach is the order of the day. At least in copyright. In patents of course big corp would benefit greatly, but then, so would many a small corps.
4. 5

   I do like the 3.1.2 question below “What’s a confused investor to do (about patents)?”

   Why, because from where I stand, observing the USA from afar, and notwithstanding the Dunning-Kruger effect, it seems quite simple.

   There was a bubble in patent law in the USA, nucleated by the State Street decision. The bubble has now burst. That’s all.

   With the bursting of the Only in America bubble, there is a world-wide consensus, that patents are only for X, where X is new, useful, non-obvious and enabled contributions to technology (what at the time the US Constitution was written was known as the “useful arts”), the application of the natural sciences, the use of natural forces, in the real world in which we live (as opposed to abstract ideas and pure logic). It is only pragmatic judicial economy that stops an outright unequivocal judicial prohibition by SCOTUS on anything dubbed a “business method”.

   So when should a confused entrepreneur or investor be open to the idea of committing serious money to the creation of a patent portfolio? Why, only when the business plan calls for funds to protect magic ingredient X.
   1. 5.1

      Once again, MaxDrei. – you are absolutely wrong to equate Useful Arts with Technology.

      Your error is still error no matter how many times you blithely repeat it.
      1. 5.1.1

         Thanks for the reminder. Just as SCOTUS will out of prudence and caution sensibly refrain from offering a stare decisis definition of “abstract” or “business method” so it will decline to come up with a definition of “useful arts”. It doesn’t need to.

         But that’s OK. When they start to think about it seriously, most reasonably intelligent and unbiassed people, people without a financial self-interest to push, intuitively grasp where the boundary of patentability lies, or ought to lie, just as they intuitively grasp the meaning of the word “obvious”.
         1. 5.1.1.1

            great** – now please respect the differences between your sovereign and our sovereign and stop trying to have something here that you merely want to have.

            **your “politeness” aside, you still get an F. U really need to do better MaxDrei.
   2. 5.2

      “ It is only pragmatic judicial economy that stops an outright unequivocal judicial prohibition by SCOTUS on anything dubbed a “business method”.”

      Also absolutely wrong – and noted that Stevens tried exactly that – and failed – and also lost his majority position on the Bilski case because of that.
      1. 5.2.1

         Perhaps it was simply that the SCOTUS colleagues were just a teenzy-weenzy bit more judicially cautious than Justice Stevens. Indeed, I do credit SCOTUS in aggregate with a full measure of judicial caution. That’s just the way it is, and as it should be.
         1. 5.2.1.1

            Absolutely nothing wrong with judicial caution.

            We can agree on that.

            Especially when it comes to matters of statutory law (say, in contrast to common law).
   3. 5.3

      Max, I agree with you that patents should be filed to protect inventions so as to provide market exclusivity either to the company investing in the new technology, or to a licensee that may take an exclusive license from the inventor.

      IBM stopped doing that a long time ago when, pursuant to an antitrust decree, it was obligated to license its patents. That is why it does not use its patents to protect its business from competition. It rather invest in patents purely as a revenue source.

      I do not know whether IBM is still bound by that historic consent decree given that it is no longer a monopoly in any aspect of the computer business. If it is not so bound, it should revise its thinking on patents to realign its priorities to protect its business investments rather than trying to make money by nonexclusive licensing. One does not need 7000 patents a year to protect a business as small as IBM’s.
      1. 5.3.1

         Not sure if your view of history (and the avenue of licensing) is correct Ned.

         And if IBM is a small business, then you really are skewed….
   4. 5.4

      Max, how do you account for the fact that the USA has ten times the software industry that the UK has and we did it with strong patent protection for software. That doesn’t sound like a bubble, but an incredible run of innovation before the corruption started to eat it away with watering down patents.
      1. 5.4.1

         an incredible run of innovation

         Hey, it’s cool that computers can store information but the real problem is: how do you get that information out of the computer?

         People struggled with this for years until someone came up with an incredible idea: use a button! It’s just like a button on every other machine except this button is attached to the computer. Incredible stuff, I know.

         I’m going to stop here, kids, because this is a lot for anyone to digest. Get some sleep and don’t feel bad if you are having trouble with this. Tomorrow we’ll tackle the really difficult concept of virtual buttons.
      2. 5.4.2

         Night, so good soldiers fighting in the patent wars get pensions after 20 years as once did the army of Caesar?
         1. 5.4.2.1

            Ask MM.
      3. 5.4.3

         How do I account for it, Night? The same way I would for any assertion (speaking English results in heart disease) that a correlation between A and B proves that A causes B. Patent law is not the only difference between industry in the UK and in the USA. The USA has “ten times” the industry that the UK has, in loads of industry sectors where patent protection in the UK is just as “strong” as in the USA. How about aerospace industries? The Wright Brothers litigated their patents also in England, you know, and the UK aerospace industry was a glory, up to the 1960’s. Its failure was nothing to do with the unavailability of patent rights, just as the success the USA has enjoyed in programming the world’s computers was nothing to do with getting patents on that creative activity.

         You would have it that “we did it with strong patent protection for software”. Gave you a warm feeling did it, to write those words? But even if patent protection for software was ever “strong”, of which I am far from convinced, that didn’t do what you say it did. No more so than speaking English will give you heart disease.
         1. 5.4.3.1

            Except the US has tens times the software industry as the whole rest of the world combined.

            Sure it is just a correlation and not causation—right. That is why there are no countries that have an innovation engine without patents.

            And, another point is how would it be possible for the patents to be so crippling when the US software industry has become the great innovation engine it is with the patents?

            More nonsense from folks that don’t practice US patent law for real—like me.
         2. 5.4.3.2

            The mantra of “cause and correlation” is a classic loser’s argument.
5. 4

   Here’s the ridiculous ineligible junk that the deep thinking Michael Borella and the resident software bobby twins are embracing this week:

   A method for recovering calls using an attendant telephone set having a predetermined number of call appearance buttons comprising:

   receiving a plurality of incoming telephone calls from calling parties;

   identifying a telephone number of the calling party of each incoming telephone call;

   assigning each incoming telephone call to a next available call appearance button of said predetermined number of call appearance buttons;

   storing the identified telephone number associated with each incoming telephone call in a memory device; and

   automatically redialing, in response to the attendant’s selection of one of the call appearance buttons, the stored telephone number of the calling party of the incoming call assigned to the selected call appearance button.

   Borella complains that the judge “looked at this from a ten thousand foot level.” What other level is there? This claim describes the awesome process of “assigning” “a button” to a signal source so you can contact the source “automatically”.

   There’s zero new techn0logy described in the claim. Look at it from 10,000 feet or look at it from 5 feet. There’s the concept of “assigning” a function to a button, there’s the old technology (a phone with buttons), and (surprise!) there’s a POWERFUL COMPUTER BRAIN that “remembers” the all-important function of that button. Wowee zowee!

   The complaint is that a test that requires that some actual new technology be recited in objective structural terms is harsh on so-called “business methods” (this isn’t that) and “software patents” (because it’s drafted functionally, this claim covers an infinite number of software and hardware embodiments).

   Guess what? That’s the point of the test.

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

   Dry your tears, crybabies. Time to grow up.
   1. 4.1

      Maybe the software lovers can explain this to everyone: is every process of “assigning” a “new” function to “a button” eligible for patenting? Or is it just this awesome process that you love in particular because it makes it really easy to call your mommies?
      1. 4.1.1

         Is every wooden invention that just adds some new wood for a new function eligible for patentability?

         Just silly nonsense from you MM day in and day out. Your nonsense has nothing to do with patent law. What you attempt to do over and over again is say, “Your elements A is a witch!” Burn the witch.
         1. 4.1.1.1

            NWPA: Is every wooden invention that just adds some new wood for a new function eligible for patentability?

            LOL

            The best and the brightest, folks.
            1. 4.1.1.1.1

               From below and repeated many times on this blog:

               I have had a challenge on this blog for over 5 years for ONE claim that needs 101 to invalidate it where 102/103/112 wouldn’t do. No takers.)
               1. 4.1.1.1.1.1

                  NWPA repeated many times on this blog:

                  You can repeat your silliness ten thousand times a day. It doesn’t make it true.

                  You’ve been presented with probably hundreds of examples of claims where “102/103/112” won’t do the job. When you pretend that hasn’t happened, you only look sillier.

                  You may not have noticed this but the argument that “subject matter eligibility is just a drafting requirement” was made and it lost, miserably. That was years ago.

                  Like I said: grow up.
                  1. 4.1.1.1.1.1.1

                     “Like I said: grow up”

                     says Malcolm in his best Peter Pan voice….
                  2. 4.1.1.1.1.1.2

                     Where’s he beef (claim) MM?
                     1. …

                        NWPA Where’s he beef (claim) MM

                        Is it Groundhog Day already?

                        Give us all a break, NWPA.
                     2. So, in other words, —- again — no claim. If there were a HUGE number of these claims, then it would be easy for you to generate some claims that need 101.
   2. 4.2

      “recited in objective structural terms”

      Once again Malcolm wants to pretend (and thus make an issue) that one optional claim format is somehow the only “true” legal claim format….

      Guess what? The point is to NOT MAKE UP THE LAW AS YOU WANT IT TO BE.

      There may be tears, Malcolm, but those are tears at your lack of ability to advance an actually legally valid argument.
      1. 4.2.1

         “anon” The point is to NOT MAKE UP THE LAW AS YOU WANT IT TO BE.

         The point is to get rid of ineligible junk like patents on logic and information.

         In case you haven’t noticed, you’re losing that debate, bigtime.

         The law is increasingly “the way I want it to be” because (surprise!) I want the law to make sense.

         You and your cohorts, on the other hand, want your “do it on a computer” junk to be coddled because, hey, it’s all about you. You’re the Most Important People Ever and if you don’t get your way, the world stops turning, nobody writes new software, and the Constitution explodes.

         Yup. You’re all very serious people.
         1. 4.2.1.1

            Sorry Malcolm, but your de facto view of all software patents are ineligible is just wrong. You exhort “grow up” yet don’t want to face the reality that in today’s world, the largest force of innovation is in software.

            Software really is NOT “just logic.”

            Can you obtain a copyright on that “just logic?”

            And by the way, this is NOT a point for debate. You may wish to treat it as if it were, but this is a fact that you only hope to obscure.

            “You and your cohorts… serious people”

            LOL- there we go again… mindless drivel from your short script. great “ecosystem” prof.
            1. 4.2.1.1.1

               “anon” Software really is NOT “just logic.”

               And now the childish game of confusing the logic that is recited in the claim with a working embodiment (i.e., source code) that might fall within the scope of that claim.

               Go ahead and try to patent the source code, “anon.” See what happens.

               Can you obtain a copyright on that “just logic?”

               Nope. But you can absolutely copyright certain written expression of that logic. People do so all the time, in the software context as well as in other contexts.

               But you knew that already.
               1. 4.2.1.1.1.1

                  The only childish games are yours Malcolm.

                  The same trite ones over and over and over.

                  And no Malcolm, even a put expression of logic is not copyright able.

                  Now if you have more than just logic, the more than can obtain copyright – and this does NOT fit your attempted spin, and yes, we both know that.
                  1. 4.2.1.1.1.1.1

                     “even a put expression”

                     should read

                     “even a pure expression”

                     damm auto-correct
                  2. 4.2.1.1.1.1.2

                     a pure expression of logic is not copyright able

                     I missed the part where I asserted otherwise. You do love your strawmen, don’t you?

                     Here’s what I wrote: you can absolutely copyright certain written expression of that logic. People do so all the time, in the software context as well as in other contexts.

                     And note: this isn’t “spin”. I’m just stating a fact and, as usual, you seem to be struggling with them.

                     Also a fact: you can’t protect expression with a patent claim and if you try to do so your patent claim will end up in the trash.

                     Also a fact: if you try to assert copyright over a patent claim, your copyright will end up in the trash.

                     But go ahead and tell your imaginary clients otherwise. Feed them some bal0ney about the “Royal Nine” and your beloved Constitution, then polish your guns like the awesome patriots you believe yourselves to be.
                     1. …

                        LOL – your “assertion” is in your statement of “software is logic.”

                        Your statement is most definitely NOT software is logic and something more.

                        So, no strawman on my part whatsoever.

                        Also, that’s why your statement is a F A I L, because exactly like ALL engineering is logic plus something more, so too is software.

                        Your “stated fact” about copyright simply does not comport with your desired statement about what software is. The only way you “bridge” that is by pretending that your “factual” statement supports your other statement.

                        It does not.

                        And that is your attempted spin.

                        Your new muckety muck is simply your very own favorite rhetorical t001 of AccuseOthersOfThatWhichMalcolmDoes.

                        To wit: you produce “facts” regarding intermingling of patents and copyrights which NO ONE is arguing about – thus it is YOU that is strawmanning. Further, these new “facts” ALSO have nothing to do with your incorrect statement that software IS logic.

                        What a chump.
                     2. and further, an item can have different aspects protected under the different IP laws.

                        (you seem to want to state that an item cannot be mixed – it is NOT that an item would be mixed – but it IS that an item CAN HAVE different aspects)

                        then again, your record in the different IP laws themselves is rather abysmal.
                     3. your “assertion” is in your statement of “software is logic.” Your statement is most definitely NOT software is logic and something more

                        Software is logic.

                        Gone With the Wind is a book.

                        Beethoven’s 9th Sympthony is music.

                        The cotton gin is a machine.

                        Is there “more to it”? Sure. We can be as pedantic as we want to be.

                        But the facts remain the facts. And one of those facts is: software is logic.

                        Now if you want to make some assertions to the effect that there is necessarily “more” to “software” than logic such that you can’ t accurately describe “software” without describing that additional non-logical subject matter, then by all means please, please, please share with everyone exactly what that additional critical subject matter is.

                        Go ahead.
                     4. “anon” you seem to want to state that an item cannot be mixed

                        Not at all.

                        I’m just stating a fact: software is logic.
                     5. “anon” ALL engineering is logic plus something more

                        Go ahead and tell everyone exactly what that “something more” is, “anon.”
                     6. MM, “software is logic.”

                        Actually, it is anything from source code written in a computer language, to machine code that is loadable and executable.

                        But what is does both mathematical and logical.
                     7. Malcolm,

                        Your “fact” is not a fact because it leads to a direct contradiction.

                        You even winced with a p@thetic “I missed the part where I asserted otherwise. You do love your strawmen, don’t you?” and yet, revert directly back to the same thing when pushed again.

                        Hilarious.

                        Ned,

                        Software is NOT the execution of software.

                        What is does is the aspect of utility.
                        What it is is a manufacture. A deliberate creation by the hand of man with the sole purpose of being a machine component.

                        (I love the fact that it is Malcolm and Ned being pedantic on this basic point and Malcolm accusing others of that which he does – classic. Nice “ecosystem” Prof, that this blight runs rampant)
                     8. Ugh!

                        Anon, you never cease to amaze.

                        What did I say? Read my post.
                     9. Ugh right back at you Ned.

                        You tried to make it that the use of software was “just math and logic” with the implication that that was what software was.

                        What exactly in my reply do you have a problem with?

                        Anything?

                        Further, and in direct parallel to what I stated to Malcolm, all that engineering is is “the use of” math and logic.

                        Yet, I do not see you confirming my position against Malcolm…

                        Gee, why is that?

                        (that last question is rhetorical – we BOTH know that you and Malcolm share a common desired Ends)
6. 3

   From the Voxaton link:

   “This is yet another example that tracks a familiar trend in § 101 jurisprudence: (1) a claim is viewed at a 10,000 foot level to remove from it all devices and machines, (2) this gist of the claim is declared abstract, and (3) when the devices and machines are examined separately from this gist of the claim, they are determined to be no more than routine and conventional, adding no patentable weight. Following such a formula, virtually any software or business method claim can be rendered invalid.

   And therein lays the fundamental problem with the Alice test — its subjectivity. While many claims that fail to meet the requirements of § 101 are more clearly abstract than claim 1 of the ‘261 patent, a reasonable application of the test to this claim — one that considered the claim as a whole or involved defining claim terms — might have come to the opposite conclusion.”

   Yep – it’s the “Gist/Abstract” sword.

   That same “Gist/Abstract” sword that the Supremes provided – unlimited in its application.

   And contrary (go figure) to Malcolm’s canard, one does NOT have to defend any particular claims to make note that the MEANS being used to arrive at the ENDS is just not in accord with the statute as written by Congress.

   Of course, Malcolm would rather not focus on the law because he just wants his Ends, whatever the Means, thus the invitation to “defend” as a perpetual sideshow and distraction.
   1. 3.1

      It is just crazy. People like me that actually work with the most innovative companies in the country on a day-by-day basis know that the granularity of invention is small. That the engineers at these companies work extremely hard to invent something patent worthy. That the current situation is ridiculous and a violation of any decent human behavior.

      That is reality. The psychotic nonsense you get from the anti-patent judicial activist is just that. I do this for real. I see it for real with big mechanical invention, bio medical invention, chip architecture, business methods, and for large corporation and individual inventors.

      The fact is that anything that is not 102/103/112 is a judicial activist game to weaken patents.

      That is reality. The reality of actually working with real companies and writing 100’s and 100’s of patents, working on client counseling, working litigation, working on getting companies funded, due diligence for buying companies, etc. Reality.
      1. 3.1.1

         NWPA: I do this for real.

         Let’s hope not. You’re one of the least intelligent hacks to ever comment here.
         1. 3.1.1.1

            See this is the type of comment that Dennis lets pass. After been on this blog for 11 years and MM is without question the one that instigates.
            1. 3.1.1.1.1

               NWPA the one that instigates.

               Says the guy who wrote some drivel about “psychotic nonsense you get from the anti-patent judicial activist” in response to a comment from “anon” which went out of its way to attack me personally.

               But, sure, I’m the “instigator.”

               Funny stuff.
               1. 3.1.1.1.1.1

                  Mine was factual.
                  1. 3.1.1.1.1.1.1

                     LOL – so was mine.

                     Malcolm makes the mistake of thinking that “an attack” is not pertinent to the LOADS of C R P that he posts incessantly here.

                     Come Malcolm, address the points of that (Oh Noes) “attack,” instead of the usual glib drive-by monologue propaganda short script that you usually peddle.

                     (I won’t be holding my breathe)
                     1. …

                        “anon” address the points

                        Here’s an idea: put some lipstick on your strawman and take a nap with it.
                     2. I have a better idea: put your short script of empty ad hominem to the side and actually address the points raised in an inte11ectually honest manner.

                        Just.
                        Won’t.
                        Happen.
            2. 3.1.1.1.2

               I think anyone who makes these types of comments should be banned. And that includes me, should I make a comment like that.
               1. 3.1.1.1.2.1

                  Once again, PatentBob, let me remind you of what “rules” really mean for the types of posts that I will use: they mean the types of posts that I see uniformly enforced.

                  It’s that simple.

                  Really.

                  And not only that, but my sharp tongue is still distinguishable from Malcolm’s C R P, in that my “target” has acted in a manner that invites the sharp tongue AND I do not mischaracterize what other say or spin the law and facts to misrepresent the law and facts.

                  The “ecosystem” here is what it is – for almost a decade now, and long before I ever started posting here.
                  1. 3.1.1.1.2.1.1

                     my sharp tongue

                     LOLOLOLOLOLOLOL

                     Soooooo devastating.
      2. 3.1.2

         Night,

         From the Boston Entrepreneurs’ Network (www.boston-enet.org) for the February 2 event:

         Entrepreneurs and investors are increasingly viewing patents with some skepticism. Some Investors say that they are unwilling to fund building out a strong patent portfolio because if the business is successful, they can buy whatever patents they need. They would rather their early investments be devoted to building and launching the minimum viable product, gaining customers, and ramping revenue. Facebook is one example they point to.

         Other investors say that they will not invest in a startup that does not have the potential to create a significant patent portfolio that can serve as a barrier to future competitors and, should the startup fail, provide some value at the end. Google is often cited as an example of a company that had patents early and has built a healthy portfolio.

         All these conversations are taking place against a backdrop of diminishing patent value generally, and particularly the value of software, payment, and business methods patents. Some of these changes result from various court decisions. Other changes have been brought by the American Invents Act (AIA); these changes make it much more difficult to enforce patents of all kinds in the US. A new administrative procedure called Inter Partes Review (IPR) makes it very cost effective to challenge most issued patents at the US Patent and Trademark Office.

         So what is an entrepreneur to think and do?
         1. 3.1.2.1

            Troubled,

            You raise some solid points – but the first part of any answer is to realize that Big Corp is behind this devaluation – and why they are behind it.

            The second part of any answer is to realize that a lasting solution requires the presence of strong patent rights – not weaker ones.
         2. 3.1.2.2

            what is an entrepreneur to think and do?

            Put a gun in your mouth and pull the trigger, of course.

            I mean, what’s the point of living if you can’t easily get a junk patent and use it to extort a hundred companies out of millions of dollars?
         3. 3.1.2.3

            I actually work with real entrepreneurs from Silicon Valley and other places. What I hear is about this too. I think we are close to where the companies are going to start hiding everything they do. We are close to a tipping point. You see what is missing is the trade secret federal cause of action. That is why Google is pushing that so hard. Then what happens is you put everything behind a firewall (and start trying to hide what you did) and then lock down your employees with draconian employment contracts. Basically, employee you don’t tell anyone what we are doing and if you take another job you can’t do anything like you are doing now.

            If they get the new trade secret law, then I think we are going to move to a model of secrecy. The engineers are going to be horrified when they finally figure out where all this was going. (And, of course, innovation will massively slow down as everything becomes a secret.)
            1. 3.1.2.3.1

               “…and then lock down your employees with draconian employment contracts. ”

               You are aware that non-compete clauses are not enforceable in California, right?
               1. 3.1.2.3.1.1

                  Yes, AAA JJ I am. The federal laws would create causes of action for effectively making non-compete clauses.

                  That is what Google is up to. Federal causes of action to get out of the CA laws. That is what the giant push for trade secret legislation is all about.
   2. 3.2

      therein lays the fundamental problem with the Alice test — its subjectivity

      There’s nothing “subjective” about the inherent problems with software and so-called “biz method” claims.

      The subject matter problems presented by the typical examples of such claims have been understood and explained for a long time.

      What’s “subjective” is the weird desire to embrace indefensible junk patents like this when any reasonable objective person can see that they’re d.o.a.

      These are exactly the claims that need to be expunged from the system quickly and without additional cost to the public. Kiss them goodbye.
      1. 3.2.1

         The point on subjectivity was about the test- nice attempt at spin.

         NOT

         Can we get rid of this type of C R P, Prof?
         1. 3.2.1.1

            “anon” The point on subjectivity

            There was no “point”.

            A little baby running around screeching “everything is abstract because subjective!” is not making a “point.”

            Hard to believe, I know.
            1. 3.2.1.1.1

               Malcolm’s response?

               Denial and more ad hominem.

               “Go figure Folks”

               Great job Prof – where is the Decade of Decadence celebration going to be held?
               1. 3.2.1.1.1.1

                  You keep saying decade, but it is 11 years. I started on this board in the spring of 2005 and MM and Noise above the Law used to battle it out every day like you and MM.
                  1. 3.2.1.1.1.1.1

                     best I was able to track the Malcolm monitor was back to February of 2006.

                     Archives are below if you want to find an earlier one.
                     1. …

                        You gotta be joking! Nobody wants to go look for what MM has to say??
                     2. lol – good point, svg.

                        I did it though to prove a point.

                        Sadly, the good professor either doesn’t care (no matter what he says to the contrary) or there really is something behind the perception that Malcolm has some leverage over the professor.
                     3. …

                        My memory says 2005. I wonder if MM is getting pension benefits so he will retire after 20 years of paid blogging.
                     4. Night Writer,

                        Why try to correct me on your memory when the archives are below?

                        Decade of Decadence has a better ring to it, anyway, eh?

                        😉
                     5. Looks to me like the comments are missing from 2005.
                     6. Ay, that may be – although there are some comments present…
   3. 3.3

      anon, “this gist of the claim is declared abstract.”

      But why is the declared abstract?

      This is where the Supreme Court left us all hanging, is it not? The reasoning behind Bilski. Stevens make big issue of the fact that majority did not care to explain its reasoning.
      1. 3.3.1

         Stevens had his knickers in a twist, Ned.

         The problem (one of them) is that Stevens would have blatantly violated the separation of powers clause and directly overwrite the words of Congress on a particular point of law that I have often presented to you (and to have you always run away from that point of law).

         To wit: when Congress created a limited defense to a subset of business method claims, they validated the fact that business methods – AS A CATEGORY (or a sub-category under “process,” if you will) are patent eligible.

         One does NOT need such a limited defense if – as you and your “cohort” Malcolm would have it, “biz methods” are not eligible to begin with.

         You have never addressed this flaw in your position.

         It is also not your only flaw in your curse-ade against business methods.
         1. 3.3.1.1

            anon, you and I both know that I have addressed 273 many times. I was part of the effort to pass it, so I know first hand what happened.

            Congress accepted that State Street Bank was the law — the Supreme Court declined cert — and reacted to control the damage.

            This does not mean that Congress endorsed State Street Bank, or thought it was correctly decided.
            1. 3.3.1.1.1

               Ned,

               Your “version” of the law concerning 273 is just not correct. You have let your biases run rampant and have never been able to understand what actually happened. You think that since you had some (small) part in the process, that your intentions somehow “must” be the same as what Congress eventually did.

               You are simply and bluntly: wrong. What you know “firsthand” is only your own biased view of something else. You may have wanted something else, and mayhave worked for something else, but your wants, “knowing” and biases do not – and cannot – change the simple logic of what WAS done.

               Simple logic Ned: NO defense is needed (for a subset) if the underlying larger set is simply not eligible in the first place.

               SINCE a defense WAS put into place, this necessarily means that the larger set IS eligible.

               Further, and as I have mentioned many times, Prof Crouch had a guest post awhile back that showed that business methods patents HAVE BEEN granted throughout the history of the US patent system.

               It’s time that you faced up to the fact that you are on a windmill chase, a windmill chase unconnected with the law as it is.
   4. 3.4

      “Following such a formula, virtually any software or business method claim can be rendered invalid.”

      That’s the best part! It’s a feature, not a bug.

      “And therein lays the fundamental problem with the Alice test — its subjectivity. ”

      Not really, for all practical purposes it objectively gets rid of software and business method patents. Or at least nearly all of them “worth something”.

      “That same “Gist/Abstract” sword that the Supremes provided – unlimited in its application.”

      It’s like this sword.

      link to old.he-man.org
      1. 3.4.1

         That sword…?

         Meh, that’s a limited sword. That’s not the “Gist/Abstract” sword.

         Your “feature” – being unlimited – is NOT limited to software and business methods 6.

         That’s why the gas pedal needs to be stomped – that’s why the laughable idea of “gee, get a fallback position” is such a joke.

         That very same unlimited sword needs to be swung on every patent in every art field in order to show just how p00r the “logic” of that sword is.
         1. 3.4.1.1

            “Meh, that’s a limited sword.”

            Not when wielded by HE-MAN: MASTER OF THE UNIVERSE! lol
            1. 3.4.1.1.1

               The sword 6 – the sword (not the wielder).

               Get.
               A.
               Clue.
               1. 3.4.1.1.1.1

                  You’re just jealous of he-man and how awesome he makes his sword.
                  1. 3.4.1.1.1.1.1

                     Not jealous at all – you are simply off point.

                     (you are doing that projecting thing again…)
         2. 3.4.1.2

            “That’s why the gas pedal needs to be stomped – that’s why the laughable idea of “gee, get a fallback position” is such a joke.”

            Oh come now anon, there’s plenty of “fall back positions” with respect to software that impacts actual technological innovation, like making rubber, or like making anything else pretty much. Bottom line, just stick to industrial applications and your software will likely make it through.
            1. 3.4.1.2.1

               Not per Malcolm, 6.

               Pay attention son.
7. 2

   To all lovers of software patents: please, please, please line up and defend the claims at issue in Voxaton v. Alpine Electronics Of America.

   You are the world’s most serious and important people, after all. Line up and present your best arguments. I really could use the laughs.
   1. 2.1

      Aside from the typical empty ad hominem, maybe we could pay attention to the Means here…

      See link to patentlyo.com
8. 1

   I’d like to read the article about IBM, but Forbes apparently does not like ad blockers and won’t let me in.
   1. 1.1

      Between 2008 and 2012 IBM’s patent portfolio generated between $1.1 and $1.2 billion per year. It has fallen each year since then to $742 million in 2014 and could fall again in 2015 to under $700 million.
      1. 1.1.1

         Wow. IBM was already claiming $1 billion annual revenue back in the 1980s. That would be $2.3 billion today or three times what IBM is licensing now.

         And how much does IBM’s patenting operation cost? Ten thousand issues a year times eighty hours of patent attorney time plus eighty hours of engineer time to get the thing written and prosecuted plus assorted bureaucratic costs plus filing fees and maintenance fees looks like at least $500 million.

         At least. IBM could be spending more filing patents than it gains from licensing them. And that’s before the costs of litigation and all the threats and negotiations that licensing requires. A phalanx of lawyers in $5000 navy suits doesn’t come cheap.
         1. 1.1.1.1

            A bit of hyperbole there? I’ve never met an attorney who owned a $5,000 suit. I’m sure there are some, but I’ve never met them. And your 80 hours for attorney time is way, way, way off — for any company, not just IBM. I’d love to have 80 hours to draft a case (though I can think of very few cases that would actually require 80 hours to draft).
            1. 1.1.1.1.1

               PatentBob,

               Owen is a known echo of Malcolm’s and speaks only from the same script.
         2. 1.1.1.2

            Owen, the IBM patent counsel I knew used to brag about getting cases filed for an average of $3500 to $4000. That was in the nineties. Given the rise of both attorneys fees and patent office fees let us say, double that figure. Then add in a similar amount to prosecute the case: $16,000.

            But this also probably includes continuations and divisionals which do not have drafting costs. But let us be generous and not provide a discount for continuations.

            So I think were talking about $16,000 times approximately 7000 patents issued per year, and that would be $112,000,000 per year.

            Then we have that in maintenance costs for those 88,000 patents. Let us say, $88,000,000 per year. Just to keep this simple, let us say the U. S. patent procurement process and maintenance process totals about $200,000,000 per year. Add in foreign prosecution and maintenance, and may probably get to $300,000,000 per year.

            Then we have to consider the licensing operation itself. Add in another $50,000,000 per year minimum.

            Just guessing then, we get there around $350,000,000 per year just in the cost of producing the patents and licensing them versus a revenue of $700,000,000.

            Still pretty profitable.

            But if prosecution costs were much higher, the whole operation might not make much sense.
   2. 1.2

      The article is a bit light on specifics, but does note that the trend of the number one (quantity) holder of US patents (23 years in a row) has seen licensing revenues drop to only $700,000,000.00

      Overall, it’s a fluff piece, as it is more of a soundbyte than any real substantive analysis or evaluation.

      It does not even ask the more direct question of should the company be taking a writedown of the book value of “goodwill” based on the (very real) risk of the “Gist/Abstract” sword slicing away the intangible assests values.
      1. 1.2.1

         Thanks, Ned and anon.
      2. 1.2.2

         Nope.

         The ethicists on this board are much more concerned with the Extremely Important Question of whether IBM is itself practicing the inventions for which it wants others to pay when they practice them.
         1. 1.2.2.1

            ?

            svg, I do not see anyone voicing the concern of “is IBM itself practicing the invention.”

            Where are you seeing this?

            While I grant that certain sAme ones in the past have voiced positions that do neglect the fact of that true aspect of patents (the negative nature and the fact that “practicing” the item patent has NEVER been a U.S. legal requirement), I am not certain which “ethicists on this board” you are referring to.
            1. 1.2.2.1.1

               Dude, don’t be so literal.

               Of course, I was alluding to the folks who trash PAE’s NPE’s, trolls, or other demeaning-label-du-jour.
               1. 1.2.2.1.1.1

                  Dudess – don’t be so literal yourself.

                  (maybe you didn’t read my second paragraph)
         2. 1.2.2.2

            Brings up a question doesn’t it: IBM does practice some of what they invent, but couldn’t possible practice all that they invent. So, in the money drugged world of the anti-patent judicial activist (read Lemley, Stern, Posner, Obama, Lee, Fed. Cir. judges that were selected by Google), IBM is bad when they license those inventions that they don’t practice, but good when they license those inventions that they do practice. As if that makes any sense.

            Tesla would be a patent troll in today’s parlance. We live in times when psychotic swirling money induced trips control the law. Reality has nothing to do with it. Just stick to 102/103/112 and all is fine. (I have had a challenge on this blog for over 5 years for ONE claim that needs 101 to invalidate it where 102/103/112 wouldn’t do. No takers.)
            1. 1.2.2.2.1

               No, IBM is bad because they have a slew of *bad* patents which they license. And they have so many that it’s not feasible to fight them.

               Plus the other things I noted below.

               They do have some legitimate patents, and some good research in several areas.
         3. 1.2.2.3

            I’m more concerned with ibm patenting things straight from npl without ever citing (many of their semiconductor/materials science patents), and the uspto not paying enough to get examiners capable of examining in those areas.
            1. 1.2.2.3.1

               I agree with you that not having capable examiners is an important issue and fully support the thrust that the job should pay a lot more.
               1. 1.2.2.3.1.1

                  They also need to restructure art units. 2800 is such a mess. You can’t expect people with little experience to cover pretty much any tech relating to semiconductors from oled to non volatile memory cell structure to tft backplanes.
      3. 1.2.3

         It does not even ask the more direct question of should the company be taking a writedown of the book value of “goodwill” based on the (very real) risk of the “Gist/Abstract” sword slicing away the intangible assests values.

         You’ve brought this up a few times, but I don’t think it’s as important as you seem to think.

         Goodwill and intangibles are two different things. More accurately, goodwill, as recorded on the balance sheet, is one type of intangible asset.

         The patents that IBM developed itself don’t show up as goodwill in IBM’s book value. Under US GAAP, in fact, they’re not on the balance sheet at all – the development costs are just expensed. Under IFRS I believe they’re put on the balance sheet as intangible assets at their development costs, and then written down over their lifetimes.

         To the extent that IBM has purchased a company at a premium (which is how you get “goodwill” on your balance sheet) where a substantial part of that premium comes from patents for assigning phone numbers to buttons on phones, then I agree that they should record some impairment of that goodwill.

         However, I suspect that the vast majority of IBM’s patent portfolio is internally generated. For those assets, any impairment under IFRS arising from Alice is probably too difficult to assess with any reasonable accuracy (in which case accounting rules disfavor a write-down), and likely is not nearly as significant as you think.
         1. 1.2.3.1

            You might be right on the accounting thing for those items expensed…

            But there has to be an impact for the basis of the licensing side of the business – if the sword cleaves all of those assets that serve as the basis of licensing, that is something that has to be reflected somewhere (and no, I think that your “not nearly as significant” would not be an accurate assessment).
            1. 1.2.3.1.1

               But there has to be an impact for the basis of the licensing side of the business – if the sword cleaves all of those assets that serve as the basis of licensing, that is something that has to be reflected somewhere (and no, I think that your “not nearly as significant” would not be an accurate assessment).

               There might be an impact, but it’s probably not on the balance sheet. One impact might be on the licensing revenues, which is where the discussion started. Are licensing revenues down because of Alice? I don’t know, and I suspect it would be nearly impossible to know.

               The market capitalization for IBM is 8 times the book value, I believe. That premium consists partly of the market’s perception of the value of IBM’s patent portfolio. If the market thinks that Alice has devalued IBM’s patent portfolio, then that will be reflected in IBM’s market price. But balance sheet accounting for the patent portfolio isn’t likely a big driver of IBM’s overall value – that’s what I mean by “not as significant as you think.”
         2. 1.2.3.2

            Thanks for that – I have been thinking about internal versus acquired intangible property deductibles ever since someone started that chant (thanks income taxation and corporate taxation courses).

            I agree IBM probably has internally acquired patents. Whereas, there are some companies that have spent A LOT of money on big patent portfolios – if each patent was assigned 50-100k value and is now 80% likely invalid under Alice (doesn’t seem like a bad estimate), then a write off today of 40 to 80k this year (with carry forward) could be a big tax saver.

            I do appreciate your insight on accounting rules though. So, of course, I will defer to the disfavored status of such write-off.

            Plus, how much money would it take to appraise each patent?
   3. 1.3

      Yeah it seems to me that the answer could just be “recession”.

      One other reason may well be that at least from where I’m sitting IBM is innovating in several areas where many other companies haven’t even begun to catch up to yet in terms of their capacity to produce such inventions. So they have lots of patents and all but nobody to really license them to who would/could be using that stuff.
   4. 1.4

      I would expect that this demonstrates a lagging trend when it comes to patent quality. Perhaps all parents are declining in value, or there is trouble with IBM in particular, but whenever it started, I’d guess it was around the “good times” of 2008 and not now when its reflected in revenue.

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