Pending Supreme Court Patent Cases 2016 (March 17 Update)

by Dennis Crouch

President Obama has announced his nomination of Merrick Garland to become the next Supreme Court Justice. Garland is Chief Judge of the D.C. Circuit Court of Appeals and would bring tremendous intellectual firepower to the Court and is clearly more moderate many potential nominees. All indications indicate that President Obama is correct in his appraisal of Garland as “widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence.”  That said, there is little chance that Garland will be confirmed except perhaps after the election (assuming that a Democratic contender wins).

Samsung’s design patent case is looking like a strong contender for grant of certiorari. The court will again consider the case this week.  We continue to await the views of the solicitor general in Life Tech v. Promega (whether an entity can “induce itself” under 271(f)(1)) (CVSG requested in October 2015).

The key new petition this fortnight is Versata v. SAP.  Versata raises four questions stemming from the USPTO’s covered business method (CBM) review of its “hierarchical pricing engine” patents.

  1. Whether the phrase “covered business method patent”—and “financial product or service”—encompasses any patent claim that is “incidental to” or “complementary to a financial activity and relates to monetary matters.”
  2. Whether the Federal Circuit’s standard for identifying patents falling within the “technological inventions” exception departs from statutory text by looking to whether the patent is valid, as opposed to whether it is “technological.”
  3. Whether a software-related invention that improves the performance of computer operations is patent eligible subject matter.
  4. Whether, as this Court will decide in Cuozzo Speed Technologies, LLC v. Lee, No. 15-446, the Patent Trial and Appeal Board should give claim terms their broadest reasonable construction in post-grant adjudicatory proceedings, or should instead give them their best construction.

Jeff Lamkin and his MoloLamkin team filed the brief.  [Versata Cert Petition].  SAP is on the hook for a $300+ million verdict if Versata is able to win this appeal.

The second new case is Tas v. Beach (written description requirement for new drug treatments).  Tas is a Turkish researcher representing himself pro se in the interference case against Johns Hopkins.  Interesting issues, but the case has no chance.  No cases have been dismissed or denied.

I pulled up MPHJ’s response to Vermont’s petition (filed by Bryan Farney). The opening paragraph spells out the case:

This “groundbreaking” case, as Petitioner describes it, has been going on, unjustifiably and unconstitutionally, for nearly three years now – all because Petitioner has refused to admit or accept that its state law claims against MPHJ are preempted by federal law, barred by the First Amendment “right to petition” clause, and that Congress has decided that federal preemption questions involving the patent laws must be decided by the federal court system.
 The big list:

1. Petitions Granted:

2. Petitions Granted with immediate Vacatur and Remand (GVR)

3. Petitions for Writ of Certiorari Pending:

  • Infringement by Joint EnterpriseLimelight Networks, Inc. v. Akamai Technologies, Inc., et al., No. 15-993 (can a defendant be held liable for the collective performance of method steps by multiple independent parties?)
  • Post Grant Admin: Versata v. SAP, No. 15-1145 (scope of CBM review)
  • Post Grant AdminCooper v. Lee, No. 15-955 (whether IPRs violate Separation of Powers; two amici now filed in support).
  • Post Grant AdminClick-to-Call Tech, LP v. Oracale Corp., No. 15-1014 (Same questions as Cuozzo and now-dismissed Achates v. Apple)
  • Post Grant Admin: GEA Process Engineering, Inc. v. Steuben Foods, Inc., No. 15-1075 (Flip-side of Cuozzo: Can there be no appeal when the PTAB exceeds its authority by terminating an instituted IPR proceeding?)
  • Post Grant AdminInterval Licensing LLC v. Michelle K. Lee, No. 15-716 (Can the Patent and Trademark Office appropriately apply the “broadest reasonable interpretation” standard in construing patent claims in post-grant validity challenges?)
  • LachesMedinol Ltd. v. Cordis Corporation, et al., No. 15-998
  • LachesSCA Hygiene Products Aktiebolag, et al. v. First Quality Baby Products, LLC, et al., No. 15-927 (three amici filed in support)
  • Biologics Notice of Commercial Marketing: Sandoz Inc. v. Amgen Inc., et al., No. 15-1039 (Does the notice requirement of the BPCIA create an effective six-month exclusivity post-FDA approval?)
  • Design PatentsSamsung Electronics Co. v. Apple Inc., No 15-777 (design patent scope and damages calculation)
  • Design Patents: Systems, Inc. v. Nordock, Inc., No. 15-978 (design patent damage calculations – similar issues as Samsung v. Apple). []
  • InducementLife Technologies Corporation, et al. v. Promega Corporation, No. 14-1538 (whether an entity can “induce itself” under 271(f)(1))(CVSG, awaiting government brief)
  • Preclusion or Jurisdiction: BriarTek IP, Inc. v. DeLorme Publishing Company, Inc., et al., No. 15-1025 (Preclusive impact of ITC consent judgment).
  • Preclusion or JurisdictionVermont v. MPHJ Technology Investments, LLC, No. 15-838 (Federal court jurisdiction in anti-troll consumer protection case)
  • Preclusion or Jurisdiction: Biogen MA, Inc. v. Japanese Foundation for Cancer Research, et al., No. 15-607 (Whether AIA eliminated federal district courts’ jurisdiction over patent interference actions under 35 U.S.C. § 146.)
  • Eligibility ChallengesRetirement Capital Access Management Company, LLC v. U.S. Bancorp, et al., No. 15-591 (Whether subject matter eligibility under 35 U.S.C. § 101 is a ground specified as a condition for patentability under 35 U.S.C. § 282(b)(2))
  • Eligibility Challenges: Hemopet v. Hill’s Pet Nutrition, Inc., No. 15-1062 (natural phenom case of tailoring a diet to a pet’s genomic characteristics)
  • Eligibility ChallengesJoao Bock Transaction Systems, LLC v. Jack Henry & Associates, Inc., No. 15-974 (defining an abstract idea)
  • Patent Term Adjustment Dispute: Daiichi Sankyo Company, Ltd. v. Michelle K. Lee, No. 15-652 (Patent Term Adjustment – whether the 180 day deadline applies; could bleed into admin law issues)
  • Damages: Innovention Toys, LLC v. MGA Entertainment, Inc., et al., No. 15-635 (Stryker/Halo follow-on – potential wait-and-see)
  • DamagesWesternGeco LLC v. ION Geophysical Corporation, No. 15-1085 (consequential lost-profit damages for infringement under Section 271(f))
  • Jury RoleParkervision, Inc. v. Qualcomm Incorporated, No. 15-1092 (“Whether and under what circumstances an inconsistency in expert testimony permits a court to set aside a jury verdict and grant the losing party judgment as a matter of law.”)
  • Written DescriptionTas v. Beach, No. 15-1089 (written description requirement for new drug treatments).
  • Low Quality BriefMorales v. Square, No. 15-896 (eligibility under Alice)

4. Petitions for Writ of Certiorari Denied or Dismissed:

  • ePlus, Inc. v. Lawson Software, Inc., No. 15-639 (what happens with a finally-determined permanent injunction after PTO cancels the patent claim?)
  • Media Rights Technologies, Inc. v. Capital One Financial Corporation, et al., No. 15-725 (Claim Construction: whether there a strong presumption against construing terms as subject to 35 U.S.C. § 112p6 that do not recite the term “means.”)
  • Alexsam, Inc. v. The Gap, Inc., No. 15-736 (appellate jurisdiction over patents that were dropped from case pre-trial)
  • Universal Lighting Technologies, Inc., v. Lighting Ballast Control LLC, No. 15-893 (intrinsic vs extrinsic evidence for claim construction).
  • STC, Inc. v. Global Traffic Technologies, No. 15-592 (Whether marking the packaging of a patented article with patent notification satisfies the marking provision of 35 U.S.C. § 287(a) where the patented article itself is undisputedly capable of being marked.)
  • Achates Reference Publishing, Inc. v. Apple Inc., et al., No. 15-842 (IPR institution decisions unreviewable, even when addressed in a final written decision by PTAB) [Note – This case was dismissed after being settled by the parties]
  • Alps South, LLC v. The Ohio Willow Wood Company, No. 15-567
  • Allvoice Developments US, LLC v. Microsoft Corp., No. 15-538
  • OIP Technologies, Inc. v. Amazon.com, Inc., No. 15-642
  • Fivetech Technology Inc. v. Southco, Inc., No. 15-381
  • Tyco Healthcare Group LP, et al. v. Ethicon Endo-Surgery, Inc., No. 15-115
  • Nautilus, Inc. v. Biosig Instruments, Inc., No. 15-561
  • Chunghwa Picture Tubes, Ltd., et al. v. Eidos Display, LLC, et al., No. 15-288
  • Kenneth Butler, Sr. v. Balkamp Inc., et al., No. 15-273
  • Arthrex, Inc. v. KFx Medical Corporation, No. 15-291
  • Arthrex, Inc. v. Smith & Nephew, Inc., et al., No. 15-559 (Commil re-hash – if actions were “not objectively unreasonable” can they constitute inducement?)
  • Daiichi Sankyo, Inc., et al. v. Apotex Inc., No. 15-281
  • Mylan Pharmaceuticals Inc. v. Apotex Inc., No. 15-307
  • Luv N’ Care, Ltd. v. Munchkin, Inc., No. 15-242
  • Automated Merchandising Systems, Inc. v. Michelle K. Lee, Director, United States Patent and Trademark Office, No. 15-326
  • I/P Engine, Inc. v. AOL Inc., et al., No. 14-1358
  • Interval Licensing LLC v. AOL Inc., et al., No. 14-1362
  • Content Extraction and Transmission LLC v. Wells Fargo Bank, National Association, et al., No. 14-1473
  • L. Gore & Associates, Inc. v. Bard Peripheral Vascular, Inc., et al., No. 15-41
  • NetAirus Technologies, LLC v. Apple Inc., No. 14-1353
  • Muffin Faye Anderson v. Kimberly-Clark Corporation, No. 14-10337
  • MobileMedia Ideas LLC v. Apple Inc., No. 15-206
  • SpeedTrack, Inc. v. Office Depot, Inc. et al., No. 15-461 (Kessler doctrine)
  • Rodney K. Morgan, et al. v. Global Traffic Technologies LLC, No. 15-602
  • Lakshmi Arunachalam v. JPMorgan Chase & Co., No. 15-691

5. Prior versions of this report:

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

211 thoughts on “Pending Supreme Court Patent Cases 2016 (March 17 Update)

  1. Motion granted. Time to file petition extended to April 29.
    MCM Portfolio LLC v. HP
    link to supremecourt.gov
    Issues: Whether PTO has constitutional authority to revoke a patent; whether a patent owner has a right to jury trial for invalidity; and whether a patent owner has a right to appeal the institution of an IPR in violation of 35 USC 315(b).

    1. right to appeal the institution of an IPR in violation of 35 USC 315(b).

      That is NOT the right question to ask about the institution decision.

    1. Various “anti’s” and their Echoes would be well advised to read and understand even this “gentle” reminder.

      In light of Mr. Snyder’s efforts to separate himself from the crassness of said Echoes, I invite him too to follow the links (and read the CAFC decision within those links).

      1. I remember the case from last year. You won’t like my take on it. Under my test, it should be ineligible from go because it’s an information result, consumed by a person.

        Assuming eligibility (which is bad policy), there is no invention whatsoever. Anyone with an even basic understanding of web development could have, would have, (and did, no doubt any number of times) executed the same solution without ever documenting it, let alone attempting to patent it.

        Kennedy could have had this “invention” in mind when he wrote:

        “We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts”.

        1. Your quote from Kennedy plays p00rly – for a different reason.

          The attempt by the Court to fabricate some future “maybe if” only augments the brazen disregard for the (statutory) law – one of the limits of EVEN the Supreme Court is that there must be a present case or controversy – they “make it up” by attempting to portray the mere possibility (“might stifle“)

          The score board is broken.

    2. The Feds seem annoyed that the PTAB did not simply remand back to the examiner when they sustained the examiner based on grounds he did not rely upon and without allowing the patent owner due process.

        1. anon, twice the case has been before the Feds. Twice vacated, the first time because the PTAB did not designate its decision as a new grounds and itself remand. Instead of remanding, it did its printed matter thing.

          I think the Feds were peeved.

  2. To give credit where credit is due – explicitly to Mr. Snyder, who below states:

    Martin Snyder March 17, 2016 at 7:08 pm

    Ned I agree 100% with your 5:10 PM comment.

    MM, yes there is a lack of recognition of what Ned points out in the 5:10PM comment. You are happy with the policy outcome of Alice etc. and basically so am I- but I don’t think it rests on a solid foundation or goes far enough. Also I’m sorry for the hack comment, as for the swipe at anon.” (additional emphasis added).

    First, he is showing a desire to actually proceed on merits – something missing from other LONG TERM “contributors” (if you want to call drive by monologues “contributions”).

    Second, he is trying to elevate his own responses – that alone deserves kudos.

    Third, he shows recognition of a desired ends NOT supported by proper means under the law, and innately finds this less than satisfying. STRONG Kudos here, as only too often those who should know better purposefully turn a blind eye to such a clear basis of trepidation.

    Lastly, Mr. Snyder, let me again advise you to be careful of taking academic writings at their face value since such writings are unconstrained as to hewing to actual law. In particular, the writing you reference, while indeed meaty, makes a critical mistake in simply presuming without pause that the US patent system is a “technological arts” system as opposed to the broader “Useful Arts” system.

  3. A non-sequitur I’m curious about: With discussions over the last few years, as well as sometimes actual changes in the law, around how to address the “troll problem” (take venue out of EDTX, cut back on patents on “abstract ideas,” the joinder change, post-grant challenges, etc), why am I hearing no discussion about a working requirement?

    Rather than dancing around the issue, and causing all kinds of collateral damage to working companies’ portfolios, especially those whose innovations just happen to be software-implemented, why not just end the issue with a robust working requirement? Seems so simple.

      1. It’s a requirement that you can only enforce a patent if you’re practicing the covered invention.

        In India, if a patent isn’t worked, you can get a compulsory license.

        The inability to get an injunction unless you practice the invention has some overlap, in effect, with a working requirement.

        1. Wow, that would be a difficult one. You may have a defensive patent (where this is a patent you file so that someone can’t design around what you’re really making and patenting), for instance, that you could sue on. If a working requirement was the rule, then such patents could be useless. And, speaking as former in-house attorney, you might file on an application early in a design process that may ultimately not make it into the product. It’s still a good — even great — idea, but it’s not in your product. That patent is then useless.

          Also, it’s very difficult to know exactly what is going to be important, especially for industries where it takes a while to get from idea to product. What you think is important on DAY 1 may not be important on DAY 567 or Day 793.

    1. “Working requirements” show a lack of appreciation for understanding the basic nature of what a patent right is: a negative right and not a positive right.

      Further, given that the vast majority of patented inventions are “improvement inventions” which can depend on items that the improver may have NO right in the first place to perform “positive” actions with, the call for such “working requirements” should be DOA.

      1. the basic nature of what a patent right is

        The “basic nature” of “what a patent right is” is whatever Congress tells us it is.

        There’s nothing at all preventing Congress from putting a “working requirement” into the U.S. patent system and there’s reasonable arguments out there for doing just that.

        1. ll preventing Congress from putting a “working requirement” into the U.S. patent system and there’s reasonable arguments out there for doing just that.

          Except for everything else I added, sure. Congress could even remove patents altogether.

          But so what?

          1. Congress could even remove patents altogether. So what?

            You tell me. I didn’t bring up “Congress removing patents altogether”. You did.

            My point was clear but here it is again since you seem to still be struggling:

            Your statement that “Working requirements” show a lack of appreciation for understanding the basic nature of what a patent right is” is a complete load of baloney.

            The “basic nature of what a patent right is” is something that Congress determines. In other words, there is no “basic nature” precluding a working requirement, therefore discussing “working requirements” does not show any “lack of appreciation of understanding” [sic] of this imaginary “basic nature.”

            Get it? Of course you do. But go ahead and pretend otherwise. It’s what you do.

            1. Your “point” was exceptionally wrong.

              There is NO load of baloney in understanding what it means TODAY – RIGHT NOW-BASED ON EXISTING HISTORY exactly the things that I stated.

              You are the one that interjected a future moving type of “well Congress can change things” to which my reply of yes they can, including the change of removing patents altogether directly addresses what you appear to want to say.

              In other words, there IS a basic nature of what a patent right is.

              Further, as I already mentioned, I added other considerations as to why a working requirement is fundamentally unworkable.

              Your AccuseOthersOfWhatMalcolmDoes with “pretending otherwise” is especially apt for you.

              What a chump.

              1. there IS a basic nature of what a patent right is.

                No, there isn’t.

                But keep saying so! Maybe if you recite that script in all caps with bold it’ll magically become true. Then you can have a party for yourself.

                1. No, there isn’t

                  LOL – you are so very clearly wrong.

                  Your statement as to what Congress may (in the future) do to CHANGE the basic nature of what a patent right is simply does not change the fact (or if you prefer FACT) that right now there IS a basic nature of what a patent right is.

                  There is no need to “have a party for myself” – there is a need for you to recognize reality.

                  Good luck with that.

          1. we do have the constitution and what it says. 1. Exclusive rights 2. For limited times.1.

            Gee, thanks, Ned. The Constitution says a bit more than that, of course but, hey … details!

            Importantly, the Constitution lacks anything along the lines that “there shalt not be a working requirement for these legal instruments that Congress has the power to create if it wants”.

            Nice try, though.

            1. The “nice try” is yours.

              Let me know when your future condition comes into being and CHANGES what IS right now.

              Until that happens, you just might want to understand what IS right now.

              It won’t stop you from being an arse, but you might appear to know a thing more about this thing called a patent.

            2. MM, OK then.

              We are talking about not granting, or revoking, a patent if the patentee is not working. This is similar, in a way, to not granting the right to market a drug unless licensed. It is also similar to not giving damages unless the patentee marks his products.

              The question is not really the power of Congress here, the question is whether the requirement of working includes not working because others have simply stolen the market like Microsoft or SAP did in i4i and Versata respectfully.

    2. If by that you mean the inventor must present a working prototype to the patent office, its not practical and not necessary.

      What if the invention is a 14 ton cold fusion reactor? How does one lug that into the examiner’s office?

      Furthermore, the inventor might not have the funds to build such a prototype and might need the protection of a patent in order to pitch the invention to funding sources and to provide a level of security to the funders. This is one way Patents achieve their goal of promoting progress.

      Additionally, there is no real point to the requirement. If an invention get patented that doesn’t really work, whats the harm. No one else will want to make it anyway. It doesn’t work.

      1. It is decidedly an unAmerican concept, as the Quid Pro Quo has never included actually having the “positive” aspect (even if “models” may have once been ‘requested’).

          1. You do realize the difference between a single model and the working requirement, right?

            Or are you just Tr011img the post because it was made by “anon”…?

            1. You do realize the difference between a single model and the working requirement,

              Yes I do.

              You do realize that “working requirements” aren’t “unAmerican”, right?

              LOLOLOLOLOL

              Wave that flag, Mr. Patriot. You’re totally not a Republican!

    3. The anti-patent crowd never had any interest in fixing the system, but burning it down. Google and Lemley have gotten their way.

      1. The anti-patent crowd never had any interest in fixing the system, but burning it down. Google and Lemley have gotten their way.

        300,000 patent grants a year is “burnt down”?

        You funny.

          1. Further,

            He again makes the mistake of thinking that those to whom advantage would inure in making patents weak (to paraphrase the “burning down”) would not also STILL use the patent system WHILE they are seeking to “burn down” that very system.

            As is evident (even though eyes remain tightly clenched) with the advocacy of the pejorative “Tr011” – emphasized first and most greatly by Big Corp – one must take a step back and T H I N K about who benefits most from a weaker patent system.

            Hint: it is NOT the public.

            It is merely those that would seek to compete on NON-innovation terms – who are afraid of the fact that innovation can include not merely incremental innovation but gut-wrenching disruptive innovation.

            What is “funny” is that this implied dichotomy that Malcolm wishes to make fun of has been explained to him.

            He
            Just
            Does
            Not
            Care

            (and that is the type of “ec(h)osystem” that Malcolm aspires for)

    4. Non S, would this “working requirement” include circumstances such as found in i4i v. Microsoft or Versata v. SAP where software developer was driven out/prevented from operating by deliberate piracy?

    5. Besides the already noted fact that we already have the eBay restriction on injunctions by NPEs, “working requirement” compulsory licensing would be unfair to university patent revenue, and universities alone have sufficient Congressional influence to preclude such an enactment.
      In any case, “working requirement” compulsory licensing would still leave costly U.S.litigation over the % amount and/or total cost of the license. Most patent troll revenues have been from the vast majority of defendants making settlement payments to avoid litigation costs, especially before IPRs became available.

      *eBay denial of an injunction is not the same as “working requirement” compulsory licensing because statutory enhanced damages can be available in the U.S. for far more.

      1. Great points, Paul. Undoubtedly any sort of “working requirement” modifications to the system would be tailored to accomodate the participants whom the public deems are contributing to progress in a meaningful way. That would surely include universities doing R&D.

        Licensees of patents describing innovations made by others (e.g., universities), where those licensees are doing nothing except generating lawsuits … that’s another class of participants entirely, as everyone knows.

      2. Paul, I don’t believe we are taking here about a compulsory license for money. I think we are talking about revoking the patent for non working — that is exactly what happened in England when the Privy Council was still in charge.

        1. Most modern patent working requirements I ran into, incl. some South American countries, do not revoke the patent for non-working, they just subject it to mandatory licensing.

  4. Interesting article on gender at the PTO. Turns out lady inventors are suffering more at the hands of their fellow lady examiners. And of course the evil patriarchy is much better to lady inventors than the lady examiners are and even better still to their fellow patriarchs.

    link to abovethelaw.com

    1. So if you’re a female with a zillion dollar invention and you want to minimize the likelihood of getting tanked at the PTO (the excuse for all kinds of dubious attorney behavior), probably totally worth it to get gender reassignment surgery.

      Or just change your first name to Harold.

    2. Human nature is human nature.

      However, an interesting study would see if there are trends over time as society as a whole becomes more accepting of women non traditional roles. I would think that the same study conducted in Saudi Arabia would produce significantly different results.

      1. Human nature is human nature.

        I think it’s a big leap to assume this data has anything to do with “human nature”, at least at the personal level between Examiners and inventors (who usually never interact with each other).

        For example, at least some of the observed difference could be to the fact that, on average, women get paid less and are less likely to be CEOs or in authority positions within companies. As a result, their applications are less likely to be given “top shelf”/priority treatment, at both the drafting and prosecution stages.

        1. “For example, at least some of the observed difference could be to the fact that, on average, women get paid less and are less likely to be CEOs or in authority positions within companies. As a result, their applications are less likely to be given “top shelf”/priority treatment, at both the drafting and prosecution stages.”

          That seems like an extremely long shot.

          1. 6: That seems like an extremely long shot.

            Relative to the weird “human nature” theory? I don’t think so at all.

            Is it is a “long shot” that companies put more muscle/time behind patent applications that are deemed “more important” to the company (for whatever reason)? Nope, that’s just a fact.

            Is it a “long shot” that “more important” innovations are likely to be attributed to higher paid researchers/developers as opposed to those on the bottom rungs? Nope. That’s just a fact.

            Is it a “long shot” that women are statistically more likely to be on the lower tiers than men? Nope. That’s just a fact.

            Is it a “long shot” that better-drafted and more forcefully argued applications are more likely to be allowed than some hastily drafted application scrabbled together to meet a quote? Nope. That’s just a fact.

            If there’s a “long shot” here, it had better be the proposition that Examiners look at the inventor’s name and (consciously or not) change their standards based on the sex of that inventor. I mean, seriously??

            1. Is it a “long shot” that better-drafted and more forcefully argued applications are more likely to be allowed than some hastily drafted application scrabbled together to meet a quote? Nope. That’s just a fact.

              Nice straw – who was arguing otherwise….?

            2. “Is it a “long shot” that women are statistically more likely to be on the lower tiers than men? ”

              I’ve seen no evidence of this in the context of inventors.

              And like I said, it’s a long shot. The reason is because even presuming all those things fall perfectly into place they’d only explain why women fair less well at the office period, as opposed to accounting for women inventors fairing even less well in front of women examiners in particular. Since the data breaks down differently (because of how well women fair in front of men examiners as opposed to female examiners) its fairly clear that your explanation might be a small piece of the puzzle, but it practically cannot be a dominant factor.

              “Is it a “long shot” that better-drafted and more forcefully argued applications are more likely to be allowed than some hastily drafted application scrabbled together to meet a quote? Nope. That’s just a fact.”

              That doesn’t seem to have have much to do with the inventor, that’s more attorney/agent stuff.

              “If there’s a “long shot” here, it had better be the proposition that Examiners look at the inventor’s name and (consciously or not) change their standards based on the sex of that inventor.”

              I agree that is also a long shot. A ridiculous long shot.

              1. as opposed to accounting for women inventors fairing even less well in front of women examiners in particular.

                I tried pointing that out to him and he went ballistic….

                “Go figure”

                1. “I tried pointing that out to him and he went ballistic….”

                  Gendered issues often do that to folks, especially if they’re even partly liberal.

                2. 6,

                  That is called being irrational.

                  For all the “fun” you have using labels of “meds” or “ill,” you sure seem slow to recognize when it is actually present.

              2. “Is it a “long shot” that women are statistically more likely to be on the lower tiers than men? ”

                6: I’ve seen no evidence of this in the context of inventors.

                Gee, that’s nice. Unfortunately it doesn’t really matter what you’ve “seen”. Did you try looking for it, by the way?

                Let’s save us all some time. The answer to the question is: “it’s not a long shot at all.”

                If you have evidence showing that, on average, women working at “tech companies” or universities are paid equal or higher to men or have more responsibility then men, or they are in higher authority positions then men, I’d love to see that. But you don’t have the evidence because (surprise!!) it doesn’t exist.

              3. “Is it a “long shot” that better-drafted and more forcefully argued applications are more likely to be allowed than some hastily drafted application scrabbled together to meet a quote? Nope. That’s just a fact.”

                That doesn’t seem to have have much to do with the inventor, that’s more attorney/agent stuff.

                What? Try to follow the logic, 6. It’s not that difficult. Lower rung->less resources->worse application/lessforce->less allowance.

                your explanation might be a small piece of the puzzle

                Not “might be”. It is certainly a piece of the puzzle. And the only remaining piece is accounting for a small statistical difference among (allegedly) male examiners and (allegedly) female examiners who are examining applications of differing quality.

                Love the comment about “going ballistic” by the way. You and “anon” make a funny team.

                But you sure do know a lot about women! They must really love you.

                LOL

                1. “What? Try to follow the logic, 6. It’s not that difficult. Lower rung->less resources->worse application/lessforce->less allowance.”

                  Yeah I understand the “females as a victim” “logic”, its pretty easy to spot a mile away. I just don’t think that there is enough evidence to support the basic premise, nor do I think the logic necessarily is playing out in real life. A lot of things that could be happening would seem logical, for instance, more women getting married so as to increase their own and their family’s wealth, but just because it’s logical doesn’t mean it’s happening irl. Instead I prefer to observe the world around me and take a realistic view.

        2. MM, assume you are right that the inventions of women are given less attention by their companies, then we do have a legitimate debate as to why that is. That is why I suggested that a study over time might be revealing showing a trend upwards as women in society are accepted.

          A comparison study to other locations that are notorious for their non acceptance of women outside of traditional roles would also be of interest here.

          1. Interesting to see the juxtaposition between Ned’s “might be revealing showing a trend upwards as women in society are accepted.” and 6’s “I daresay that we’re all maxed out on “acceptance” of women in non-traditional roles.”

            However, remembering 6’s gen eral nature of misogyny, the difference is easily recognized.

          2. Ned: assume you are right that the inventions of women are given less attention by their companies, then we do have a legitimate debate as to why that is.

            There’s no “debate” and it has nothing to do with inventions of “women” and everything to do with inventions of people at companies who are less likely to higher on the corporate ladder. Statistically women are more likely to fall into that category, but so are minorities. In fact, you could do a study with “minority names” instead of female names and you’d likely come up a similar pattern. Would that reflect some kind of weird0 self-l0athing among “minority” examiners? Of course it wouldn’t.

            1. “In fact, you could do a study with “minority names” instead of female names and you’d likely come up a similar pattern. ”

              Actually probably not, which would also show why your “liberal logic” view likely falls apart, at least in large part. There are too many foreign folks applying for patents at the office (and thus would be “minority” people in the analysis) that the effect would likely be barely noticeable.

            2. MM, on further consideration, I believe you are right about women inventors. This may also mean that women examiners may be more qualified than their male equivalents, leading to better examination on the average.

      2. I daresay that we’re all maxed out on “acceptance” of women in non-traditional roles (both male and females actually, and of both male and females in different roles). I doubt this has anything much to do with that at all, if anything females probably get a little boost from pro-women acceptance in the field. Plus, practically nobody pays attention to who their applicant/examiner’s gender is. I’d hypothesize rather that this effect is likely dominated by how females and males get along with other people in this particular work environment. With that effect likely dragging down the success rate a bit regardless of which side the female is on. But it would be interesting to see further studies and what they reveal.

        1. Interesting 6, but I think that your premise here is not the entire story. And for that matter, neither can Malcolm’s view be the entire story.

          The point of the data is clear that their are “jumps” in the data – basically two of them.

          Start with the the “boys club” of man dealing with man, which comes out at a certain level.

          Take a first jump down to the “mixed club” – with both alternates of inventor/examiner genders of man and woman being swapped (“basically” being equal to each other).

          Take a second jump down to the “girls club” – a jump slightly larger than the first – with woman dealing with woman.

          This second jump is above and beyond any “gee there is a woman involved” which might implicate the things that you (and Malcolm) reference. Neither Malcolm’s external view, nor your internal view account for the second jump alone.

          This second jump would seem to assert that there is something more.

          Perhaps each of your views – in isolation – is correct in and of itself, and that second jump is merely additive of the two (separate) forces, and the two items that make up the first jump should not be confused by the similarity of resultant data.

          Perhaps the author can speak to the separateness and apparent linear additive nature of the results…

          1. I’m officially not spending any more energy on this silly study after this comment.

            But it seems within the realm of possibility that female Examiners (at least those in certain art units) might be more inclined to reject a poorly drafted application than male Examiners who might “try harder” to find something to appease the applicant.

            And it might not have anything to do with gender! For instance, I assume that female examiners at the PTO are, on average, a bit younger than male examiners. For that reason alone, on average they might actually be better at reading applications and distinguishing between well-written apps and poorly apps than, e.g., a burned out examiner with failing eyesight.

            1. And it might not have anything to do with gender!

              Great.

              Maybe you want to talk about some different study that shows something different – but THIS study does purport to show a definite gender bias.

              Maybe you should try some of that “silly” thing called thinking….

              You just might appear to be less than your usual arse.

              1. THIS study does purport to show a definite gender bias.

                In fact the authors expressly state that they are agnostic as to the meaning of the data.

                That’s because they’re not idi 0ts and they recognize the limits of their meth0 d0logy.

            2. (ps, your “age” factor would likely NOT apply given all other conditions – such as the number of new young men…)

              But hey, maybe you then have a different reason for the actual numbers, which do appear to show a (gasp) gender effect.

              1. your “age” factor would likely NOT apply given all other conditions – such as the number of new young men…

                I’m pretty confident that the average age of female examiners at the PTO is lower than the average age of male examiners at the PTO.

                You should feel free to count “the number of new young men” there, if you like. They hired some new young women, too, you know. Even if they don’t talk to you (for obvious reasons) they are still there and part of the analysis.

                In the meantime, keep digging.

            3. That could be true, but thems some pretty large jumps to explain away due to demographic effects other than the gender. In some of the AU breakdowns they provided things were just crazytown.

          2. That’s one way to see the data I will admit. Where there are three “clubs”.

            “This second jump is above and beyond any “gee there is a woman involved” which might implicate the things that you (and Malcolm) reference.”

            I’m just proposing that the “second jump” is a double helping of the thing that I reference. Specifically women not getting along with others in this work environment. Except now you have both parties “not getting along” as well on avg instead of just one of the parties.

            “Perhaps each of your views – in isolation – is correct in and of itself, and that second jump is merely additive of the two (separate) forces, ”

            That could very well be.

    3. Often, you can perform data analysis and get results. Are those results actually true? That’s the issue.

      Personally, I highly doubt women examiners are treating women inventors any differently. Plus, the sample size is too small: there are few women examiners and even fewer women examiners looking at applications by women.

      1. The “truth” of the results are what they are (presuming that the measurements are accurate).

        Perhaps you mean that any takeaways from what the data are may be problematic.

        You don’t get to “personally doubt” the actual data.

        1. You don’t get to “personally doubt” the actual data.

          Well, there is definitely room to doubt “the actual data” in this case because the author’s are taking only educated guesses as to the “actual gender” of the subjects.

          The “actual data” is not about “women” and “men” but about “people with names statistically correlated with women or men, respectively”.

          1. Well that would definitely be a valid reason – but that is also NOT evident in PatentBob’s post (it is so nice to move the goalposts, isn’t it?)

  5. The Retirement Capital case should be higher on the list. It is more than just a 101 challenge. It goes to the scope of CBM review under the AIA — an issue decided in Versata but notably not listed as a question presented in Versata’s cert petition.

  6. Re the MPHJ cert petition on preclusion and/or jurisdiction issues: “Vermont v. MPHJ Technology Investments, LLC, No. 15-838.”
    [Asserted exclusive Federal court jurisdiction and preclusion vs State of Vermont anti-patent-troll consumer protection suit enforcement re accused MPHJ mass mailings of suit-threatening letters demanding prompt payments to numerous small businesses on “scan to email” patents. (Avoiding suing the companies making and selling such common office equipment to those small businesses, since they can afford to defend against such patent threats.)]
    It is reported that some of these MPHJ patent claims have already been found invalid in IPRs for claiming previously patented and/or previously commercially available product’s published descriptions by others, and that at least one such IPR decision is already on appeal to the Fed. Cir. with allegedly low odds of success. Assuming that trend continues, this does not seem like a party that will draw much Sup. Ct. sympathy?
    [I fail to see why this should get sympathy from patent attorneys either, since this kind of “patent licensing program” is not normal and is a major source of current anti-patent publicity and legislation. Several other states also have, or are considering, consumer protection legislation on this subject. ]

    1. Are you aware of the pernicious ad hominem of your “well, they must be bad, so the ends surely are ‘OK'” underlying “reasoning” here, Paul?

      Your basis of “sympathy” seems overplayed.

  7. I think that the resolution of the issue of whether an invention is technological also decides the issue of whether the patent passes 101. That still leaves open the issue of whether the patent is to a business method as defined by the statute itself.

    Thus after full trial, if the PTAB decides that the claimed invention is not technological, it should also not be eligible. I do not see how the PTAB could decide that an invention was both technological and not eligible. I also think it cannot be a threshold question only.

    But then we have the odd phraseology the statute itself in specifying grounds for invalidity in a CBM that does not include 101 among those grounds. Is my understanding that Versata did not pursue this issue before the Federal Circuit.

    1. Let me just say that the Versata petition is convincing that their software product was technological. It was not merely an improved method for calculating price. It was a pricing engine that dramatically improved the technological performance of pricing engines. The time to issue a quote in response to an inquiry was dramatically reduced.

      That the engine was used for pricing is only secondary. It could have been used for anything. Similar types of inventions are commonly used in computer hardware to improve computer performance. I specifically refer to cache architectures that now include multiple levels and complex algorithms. The simple fact that these structures improve the performance of a computer make them eligible. I think the same could be said of the Versata software.

      1. Ned several points- if the improvement is limited to “pricing” and improving the ability (speed) to process “pricing” information, than it’s not an improvement to data processing that increases the performance or lowers the cost of a general purpose computer, but rather an improvement in algorithms that relate to “pricing”, which is absolutely an abstract idea. In fact, all algorithms are abstract ideas.

        I have stated in detail that some algos should/could be eligible and some should not be.

        But this case could finally be the vehicle where the USSC must meaningfully construe “abstract”, because any construction of “technological” has the exact same problem: the word means whatever anybody wants it to mean. From the CAFC opinion:

        [“Putting this part of the regulation’s definition aside,
        we are left with a definition of a “technological invention”
        as essentially one having a “technological” feature that
        solves a “technical” problem using a “technical” solution.
        Defining a term in terms of itself does not seem to offer
        much help. In short, neither the statute’s punt to the
        USPTO nor the agency’s lateral of the ball offer anything
        very useful in understanding the meaning of the term
        “technological invention.” ]

        And

        [The Supreme Court has found in §101 an implicit exception for laws of nature, natural phenomena, and abstract ideas. Generally, the courts have found that the task of applying the first two of these judicially-crafted exceptions — laws of nature and natural phenomena — not particularly difficult; there are a number of cases providing more or less clear guidance on how to apply these concepts. The third exception — abstract ideas — is more of a problem, a problem inherent in the search for a definition of an “abstract idea” that is not itself abstract”]

        I don’t know the details of SAP’s implementation, but my assumption is that the pricing information was presented to human users for further business uses. To me, that means ineligible as an abstract idea.

        If the pricing information was consumed by other software to achieve some other result, such as ordering materials for manufacturing automatically or generating logistics algos, I could see a case for eligibility.

        Sooner or later, the highest court is going to have to split the software baby, and I see only one logical, equitable way to do that at this time.

        1. Martin: ” Ned several points- if the improvement is limited to “pricing” and improving the ability (speed) to process “pricing” information, than it’s not an improvement to data processing that increases the performance or lowers the cost of a general purpose computer, but rather an improvement in algorithms that relate to “pricing”, which is absolutely an abstract idea. In fact, all algorithms are abstract ideas. ”

          Assume that the prior art is a clerk looking through filing cabnets to get or verify claimed organizational associations (e.g., I’m a member of AARP and the Blue Cross) and then to determine the price to the customer based on one or both of those associations…. yadda yadda yadda.

          The invention is the claimed method for arriving at the correct price each time and every time 1000 times faster and much more cheaply, and saving energy, as now we only have to provide a closet to house the computer and not 2 floors of an office building to house the clerks it replaces.

          Prior computers (those without the related software component) could not do that. Hence, the invention is an improvement to the processing of the computer.

        2. MS: If the pricing information was consumed by other software to achieve some other result, such as ordering materials

          What difference does it make whether the information is “consumed” by a human or by a computer serving as a proxy for a human?

          Why would another abstraction (“placing an order”) suffice to rescue a first abstraction (“determine a price”)?

          1. MM: “What difference does it make whether the information is “consumed” by a human or by a computer serving as a proxy for a human?”

            That is the absurdity of Diehr and Fluke (if memory serves). In one an oven door was opened by a machine and was patent eligible. In the other an alarm was sounded for a human and it was not patent eligible.

            1. The question remains:

              For assessing the eligibility of an information-processing method that generates “new” information, what difference does it make whether the resulting information is “consumed” by a human or by a computer serving as a proxy for a human?

              1. MM, the problem I see here is that there probably is invention in the data processing techniques used so that the techniques would have been useful regardless of application. It is used here for price, but the approach could be used generally. The key improvement seems to be the following sort,

                “sorting the retrieved [[pricing]] information applicable to the one or more identified organizational groups and the one or more identified product groups according to [[pricing]] types, the hierarchy of product groups and the hierarchy of organizational groups;”

                Now this is a straight improvement in data processing that apparently cut the time to generate a quote from days to minutes.

                Now consider a caching algorithm that reduces the time data is accessed by an ALU on the average by 10x over direct access of the data from memory, and 2x over other caching algorithms. Now, that would be considered eligible even though the cache only retrieved data.

                But that is exactly what the sort does. Retrieves data. Faster and more efficiently.

                1. Ned: Now this is a straight improvement in data processing that apparently cut the time to generate a quote from days to minutes.

                  That’s relevant to utility but not subject matter eligibility.

                  Mnemonics save people lots of time and people “innovate” new ones every day. But they aren’t eligible for patenting. And that’s a feature, not a bug.

                2. Talk about moving the goalposts….
                  Mnemonics….?

                  Really?

                  This smacks of your (old) rhetorical trick of moving discussions of claims with elements of “mental steps” into claims PURELY in the mind.

                  THAT is a bug and not a feature.

                3. Ned: consider a caching algorithm that reduces the time data is accessed by an ALU on the average by 10x over direct access of the data from memory, and 2x over other caching algorithms. Now, that would be considered eligible

                  Sure. And black people were considered to be subhuman animals by people who were miserably wrong but who cheerfully went on being wrong because “good for business, good for the country.” What they really meant is “good for me and scr ew everybody else.”

                  Eventually they ran out of excuses.

                  That’s what going to happen with software patents because, logically, they don’t belong in the system (logic was never eligible for patenting) and the only excuse for shoving them into the system is that some people feel entitled to them … and scr ew everybody else.

                  Pull the plug on software patents tomorrow and, if anything, we’ll see more progress in software — and better software — than ever before.

              2. The fallacy of Malcolm is in trying to make NO difference the very real difference of “r by a computer serving as a proxy for a human

                The realm of all innovation deals expressly with this attempt to create “proxies.”

                In a certain way, this is reflected in that ALL utility is geared towards “consumption by man” – one way or another, the bottom line remains the bottom line, and the fallacies of anti-software arguments are revealed to be at their core merely anti-patent arguments.

            2. It was Parker v. Flook for the alarm case. The problem with this case is the claims were drafted poorly. If you ignore the preamble, the claim is adjusting an alarm limit:

              1. A method for updating the value of at least one
              alarm limit on at least one process variable involved in a
              process comprising the catalytic chemical conversion of
              hydrocarbons wherein said alarm limit has a current value
              of
              Bo+K
              wherein Bo is the current alarm base and K is a
              predetermined alarm offset which comprises:
              (1) Determining the present value of said
              process variable, said present value being defined as
              PVL;
              (2) Determining a new alarm base B1, using the
              following equation:
              B[1]=Bo(1.0minF)+PVL(F)
              where F is a predetermined number greater than
              zero and less than 1.0;
              (3) Determining an updated alarm limit which is
              defined as B1+GK; and thereafter
              (4) Adjusting said alarm limit to said updated alarm
              limit value.

              The claim doesn’t even say that an alarm goes off or anything happens in response to the alarm.

              1. The claim doesn’t even say that an alarm goes off or anything happens in response to the alarm.

                Right, but that fact pattern doesn’t even get us to the question (“what difference does it make whether the resulting information is “consumed” by a human or by a computer serving as a proxy for a human?”).

                That claim says “determine a number using this math.” There’s nothing else there except the details of the math. You can call that determined number an “alarm limit” or the “the number of days until the end of the world” or “limit on the number of hairs in grandpa’s beard” but the problem with the claim still remains: it’s just math, applied to a number to obtain another number.

                Math isn’t eligible for patenting.

                1. isn’t eligible for patenting.

                  It is not eligible for copyright either.

                  Which is great, because software is not math.

                  (and of course, you already knew that)

              2. “If you ignore the preamble, the claim is adjusting an alarm limit:”

                I don’t view that as a problem.

                The sounding of the alarm that you find lacking is insignificant post solution activity. Having the right alarm point is useful on its face. There doesn’t have to be a sounding klaxon for there to be usefulness.

                1. The sounding of the alarm

                  Two problems with that argument.

                  First, the claim does not require that any alarm be sounded.

                  Second, using math to determine when to sound an alarm is about as old as alarms. The only difference between the prior art alarms and the claim is “new math.”

                  Math is ineligible for patenting.

                  This is straightforward logic. That’s why you guys keep losing.

                2. New math used in a process is eligible … see Diehr.

                  Diehr doesn’t say that.

                  I’ll grant you that new math used in a process doesn’t render the process ineligible as a per se matter. And Diehr certainly speaks to that question.

                  But going from that proposition to proposition you just floated is a giant step that no court has ever taken and no court ever will.

                3. From the Wiki on Diamond v Diehr:

                  1. A method of operating a rubber-molding press for precision molded compounds with the aid of a digital computer, comprising:

                  providing said computer with a data base for said press including at least, natural logarithm conversion data (ln), the activation energy constant (C) unique to each batch of said compound being molded, and a constant (x) dependent upon the geometry of the particular mold of the press,
                  initiating an interval timer in said computer upon the closure of the press for monitoring the elapsed time of said closure,
                  constantly determining the temperature (Z) of the mold at a location closely adjacent to the mold cavity in the press during molding,
                  constantly providing the computer with the temperature (Z),
                  repetitively calculating in the computer, at frequent intervals during each cure, the Arrhenius equation for reaction time during the cure, which is

                  ln(v)=CZ+x
                  where v is the total required cure time,

                  repetitively comparing in the computer at said frequent intervals during the cure each said calculation of the total required cure time calculated with the Arrhenius equation and said elapsed time, and
                  opening the press automatically when a said comparison indicates equivalence.[2]

                  The U.S. Supreme Court granted the petition for certiorari by the Commissioner of Patents and Trademarks to resolve this question.
                  The Supreme Court’s opinion

                  The Court repeated its earlier holding that mathematical formulas in the abstract are not eligible for patent protection. But it also held that a physical machine or process which makes use of a mathematical algorithm is different from an invention which claims the algorithm, as such, in the abstract. Thus, if the invention as a whole meets the requirements of patentability—that is, it involves “transforming or reducing an article to a different state or thing”—it is patent-eligible, even if it includes a software component.

                4. Wiki on Diehr: a physical machine or process which makes use of a mathematical algorithm is different from an invention which claims the algorithm, as such, in the abstract.

                  Right. But, as I already noted, that’s a hugely different proposition from the proposition that “New math used in a process is eligible”. It’s also hugely different from the proposition that a claim reciting “new math in a machine” is eligible.

                  Wiki on Diehr: if the invention as a whole meets the requirements of patentability—that is, it involves “transforming or reducing an article to a different state or thing”

                  As I’ve said already, hundreds of times. Those are necessarily objective physical changes that must occur. Changes in legal status don’t count. Changes in information content don’t count.

                  This is a huge problem for proponents of patents on logic and it’s not going away. It’s the reason we just saw all patents on new card games played with a standard deck swept away with minimal intellectual effort. It’s the right reasoning and it’s the right result and the patent system as a whole is better off.

                  Good riddance and more to come.

                5. MM:”Wiki on Diehr: if the invention as a whole meets the requirements of patentability—that is, it involves “transforming or reducing an article to a different state or thing”

                  As I’ve said already, hundreds of times. Those are necessarily objective physical changes that must occur. Changes in legal status don’t count. Changes in information content don’t count.”

                  You may have said it, but you would have been mistaken.

                  It says article, not physical article. An article is a thing. A bit of information is a thing. Changing the state of a bit is a transformation of an article.

                6. New math used in a process is eligible … see Diehr.

                  Les, car keys please….

                  You make a few subtle mistakes (mistakes that Malcolm will only too eagerly twist and abuse – instead of correcting, and then striving for a true means to a proper understanding).

                  First, any math present was not in fact “new.” As I have previously pointed out, all the individual elements in Diehr (including – pay attention Ned – the result of a perfect cure) were all known previously.

                  Second, you skip over the plain fact that there is a real difference between “math” and “applied math.” And we do not even have to turn over the stone and delve into “Maths” – but we can if you want to. Let’s just leave it that ALL engineering involves “math” and the attempted “logic” by Malcolm would then make ALL engineering into forbidden territory.

                  Third, take heart – as you have now brought out another “Oops” moment for Malcolm – another volunteered admission against his interests:

                  I’ll grant you that new math used in a process doesn’t render the process ineligible as a per se matter

                  Let’s see him try to square that with his “ALL software is per se ineligible” views. ESPECIALLY since software is more than “just math,” as evidenced by the protection afforded on the copyright side (for a different aspect of software). After all (and let’s not engage in any goalpost moving from math to math books), math itself cannot be copyrighted.

                7. Those are necessarily objective physical changes that must occur.

                  Unless you believe that “software is magic” or that “ALL future improvements to [Old Box} are somehow “already in there” – the proper patent doctrine of inherency – all that your statement posits is that a change to a machine – no matter which optional claim format is chosen must really be present when the manufacture and machine component known as software change [Old Box].

                  This is nothing but the result of The Grand Hall experiment.

                  This is nothing but the “House/Morse” fallacy being exposed.

                  This is nothing but In re Nazomi being played out.

                  Of course, what are the chances that you will be inte11ectually honest about the basic meaning here? A basic meaning that just does not support your emotive, feeling-driven, Belieb system and Ends desired (and quite frankly irrational) view that ALL software must be per se ineligible.

                8. Sigh….. how does the fact that SCOTUS found old math (that it thought was new) used in a process to be eligible contradict my assertion that new math used in a process is eligible, especially since I made the statement to counter the assertion that MM made that “Math isn’t eligible for patenting.”

                  Is your point that Diehr blessed old math used in a process but not new math used in a process?

        3. MS: any construction of “technological” has the exact same problem: the word means whatever anybody wants it to mean.

          Are mental processes technological by any meaningful definition of the term “technological”, Martin?

          No.

          So the term, in fact, doesn’t mean “what anybody wants it to mean.” Whatever the term is, it excludes logic carried out by the human brain. That’s what we call “a solid starting point.”

          Why don’t you work from there and propose a definition, Martin? I’ve done it before. Give it a shot.

          1. Who says mental processes can’t be technological MM? Are you like anon now, elevating your opinion to some kind of legal fact? I just cited the top court to have ruled on it saying there is no definition. You have any authority handy for what “technological” means? How about the OED:

            technology

            Pronunciation: /tekˈnäləjē/
            NOUN (plural technologies)

            1. The application of scientific knowledge for practical purposes, especially in industry:
            advances in computer technology

            1.1Machinery and equipment developed from the application of scientific knowledge.

            1.2The branch of knowledge dealing with engineering or applied sciences.

            Gee, 1.2 sounds pretty abstract to me.

            If a scientist thinks of a solution to a “technical” problem, that solution is technical in its nature. Are you suggesting that every technology has to have a tangible result? Is math technical?

            Les this notion that you have new machine when you put a general purpose computer to a new use has been rejected at every level of patent jurisprudence in the USA and worldwide. I fried some bacon this morning in a tall pan. Did I have a new pan when I boiled some eggs?

            anon said software is “defined to be a machine component” where did he mention specifications or patent apps as a limitation of that statement? He as used it a thousand times and never limited it as such, and I make the point that no court has either, unless someone can cite an authority. Meanwhile, I cited one that says otherwise.

            MM an “abstract idea” in the context of a process subject to patenting would be, IMO, information consumed by a person. That accords with the most basic definition of the word “abstract”.

            “Abstract” cannot legally mean mere intangibility because intangible things exist apriori without human apprehension of them, and laws apply to human beings. It’s human interaction with information that gives rise to the judicial exception in the first place.

            1. Martin: 1.1Machinery and equipment developed from the application of scientific knowledge.

              That’s called “a definition”, Martin. It’s certainly a perfectly reasonable definition given the design and function of our patent system for most of its existence. And it’s not circular at all.

              Martin: “Abstract” cannot legally mean mere intangibility because intangible things exist apriori without human apprehension of them

              So what? The “a priori existence of intangible things” doesn’t mean that abstract cannot mean “intangible.”

              laws apply to human beings.

              Yes, they do. Again: so what? You can’t patent “laws.”

              You need way better arguments, Martin than these one’s if you’re going to persuade anyone that “abstractions” don’t include intangible things. But I have some advice for you: find a position that you can reasonably defend and work on defending that instead.

              Are you suggesting that every technology has to have a tangible result?

              No. I’m stating that the claimed subject matter must be tangible or else it’s not “technology.”

              Is math technical?

              No. Math is abstract. It’s also ineligible for patenting.

              These are the starting points, Martin. You start from here and you work out. When you start from the result you want — as you appear to be doing with respect to patents on logic — and you work backwards you run into trouble very quickly.

              It’s human interaction with information that gives rise to the judicial exception in the first place.

              I’ve no idea what this is supposed to mean or what the relevance is to subject matter eligibility.

            2. MS:”Les this notion that you have new machine when you put a general purpose computer to a new use has been rejected at every level of patent jurisprudence in the USA and worldwide. I fried some bacon this morning in a tall pan. Did I have a new pan when I boiled some eggs? ”

              I have a transistor. I combine it with a power supply and some strategically selected and placed resistors, I have a linear amplifier. I remove those and combine it with other resistors and I have a digital inverter. Do I have a new machine?

              Of course I do.

              What if I don’t use a “general purpose” computer. What if I start with a microprocessor and build a specific purpose device. Do I have a new machine then?

            3. MS: Who says mental processes can’t be technological MM?

              The PTO and the EPO, for starters.

              And I’m not aware of any serious person who disagrees with that position. The Supreme Court certainly never will disagree with that position, nor will Congress, for all kinds of good reasons starting with the fact that “thinking is technology” is a rather absurd sounding proposition on its face.

              I know the people who like software patents love to argue that “software is technology.” That’s a non-sequitur, however, when the actual code — the point where the rubber meets the road — is never recited in the claim. And it’s the claims we’re talking about.

              Put another way: a structurally distinguished airplane is technology. An idea about how to fly an existing plane from Toledo to Timbuktu using only logic, described in logical terms: not technology. It’s logic. And it doesn’t belong in the patent system for all kinds of reasons, but mainly because it overly burdens the actual technology with legal costs that defeats the purpose of the system (which is to promote progress in technology, not fundamental abstractions such as logic).

              1. MM: “That’s a non-sequitur, however, when the actual code — the point where the rubber meets the road — is never recited in the claim. And it’s the claims we’re talking about.”

                The actual code is not recited in the claims because copyrights are applied for in another office. The inventions are not limited to one embodiment or a particular set of variable names or implementations in a particular programming language.

                1. Les: The actual code is not recited in the claims because copyrights are applied for in another office.

                  LOL

                  Nice try, Les.

                2. It is a nice try, but somewhat incomplete (but not in a “defeating error” type of way).

                  Copyright simply covers a different aspect of the manufacture known as software.

                  The real driver here though is that claims are merely written to be understand by the Person Having Ordinary Skill In The Art, and that your 0bsess10n with one optional claim format simply is NOT proper for what is the best way of claiming in that particular Art.

                  For some (ego-driven) reason, this appears to deeply offend you and your preferred “exacting picture claim” mindset.

                  You need to get over that.

                3. I should not need to, but in case you missed the obvious, the fact that copyright is available for an aspect of software shows that software is not math and that software is not logic.

                  One cannot obtain a copyright on either math or logic.

                  (that’s an important point to remember as you ever try to spin and obfuscate the discussion on other aspects of software, Malcolm).

              2. MM:

                The CAFC has no working definition of technology, as quoted above, and the CBM statue provides none. Why should the burden be on me to provide one when I assert that there is no working definition?

                As to my actual position, I am hardly a software patent lover.

                I recognize that until our laws change, the courts are unlikely to ever ban software patents, and instead will continue to nibble away at the edges of “abstract ideas” or “something more” which does little to solve the problem(s) associated with the hundreds of thousands of junk patents already issued and currently working their way toward grants.

                You write “No. I’m stating that the claimed subject matter must be tangible or else it’s not “technology.” Q.E.D no software patents, ever, because software is not tangible. But that’s not what is happening in the real world.

                You write “Put another way: a structurally distinguished airplane is technology. An idea about how to fly an existing plane from Toledo to Timbuktu using only logic, described in logical terms: not technology. It’s logic.”

                OK, what about a mathematical method to determine the best lift/drag ratio for different foil materials? Is that “technology” prior to building a wing using that information? Or is it a law of nature? Is our discovery of that law “technology” or something else? It does not seem to be a matter of pure logic, unless by logic you mean any systematic description of cause and effect.

                Why does the “abstract idea” exception even exist? My arguments are made reflecting that it DOES exist.

                Can you answer that question?

                1. Martin, when you get busted don’t try to move the goalpost without admitting you’re busted. Otherwise you’re just another intellectually dis h0nest hack and, truly, the s0ftware patent l0vers don’t need any more of those. We already know how you operate.

                  The CAFC has no working definition of technology

                  They have the dictionary. If you think the CAFC considers “mental processes” or “math” to be “technology”, please provide some evidence to support that ridiculous assertion.

                  the CBM statue provides none

                  Again, they have the dictionary. And there’s no reason to believe the CBM believes that math is technology or mental processes is technology.

                  what about a mathematical method to determine the best lift/drag ratio for different foil materials? Is that “technology” prior to building a wing using that information?

                  No. It’s math.

                  Is our discovery of that law “technology” or something else?

                  You already said what it is: it’s a mathematical description of a physical law. And it’s ineligible for patenting, whether you patent “a math equation, comprising” or “a process for determining a number comprising”.

                  Why does the “abstract idea” exception even exist?

                  To prevent the patent system from imploding as it was surely doing from the moment that Judge Rich and his short-sighted colleagues tried to turn subject matter eligibility into nothing more than a drafting requirement.

                2. MM, moving the goalposts? I’m doing no such thing. There is no legal definition for “abstract” or “technology” beyond ipsis dixit of the judge(s) handling a case. Sure there is a range, but it’s a wide range. Any number of well-qualified people have observed this to be true, including the CAFC opinion above.

                  I ask Why does the “abstract idea” exception even exist?

                  MM “To prevent the patent system from imploding as it was surely doing from the moment that Judge Rich and his short-sighted colleagues tried to turn subject matter eligibility into nothing more than a drafting requirement”.

                  Nice hack response yourself MM.

                  You really have gotten a little soft in this forum; beating up on either mentally unbalanced individuals or people not exactly obsessed with subject matter eligibility questions.

                  Judge Rich was born in 1904.

                  In 1853, the Court wrote that “a principle is not patentable;” (Le Roy, 55 U.S. at 175.) In a seeming contradiction, in 1854, in a doctrine of equivalents case, the court wrote of the “familiar rule” that, whatever claims may specify, copying the “principle” of a patent is enough to infringe (Winans, 56 U.S. at 342).

                  Rubber tip pencil ( “an idea of itself is not patentable.”) was also a 19th century case.

                  I think there are several reasons for the judicial exception. I think a key problem has been lack of recognition of two different questions- intrinsic ineligibility and claims drawn as ideas- that have been conflated and not yet untangled.

                  The former reason is to keep patent law from stepping on other Constitutional rights – to association, expression, & pursuit of happiness. The latter is to ensure equity in the proper granting of the right to exclude.

                  Here is a (IMO) strong paper on the history of the exception. The author, Alan Durham, also recognized that there were at least two levels to the question. He mentioned Judge Rich a great number of times. Zero to be exact.

                  link to papers.ssrn.com

                3. The “hack” has NOT changed one bit in TEN years – you yourself become the “hack” by portraying those whom he opposed in pure ad hominem terms.

                  Too funny.

                  Great “ecosystem” Prof.

                4. MS: There is no legal definition for “abstract” or “technology” beyond ipsis dixit of the judge(s) handling a case.

                  And yet somehow many of us are able to predict very accurately how those cases are going to turn out. And we’ve been doing so for years.

                  You are mistaking the lack of a definition that answers every question for the lack of a definition. That’s a silly mistake. And I’ve no doubt that you’re doing that intentionally. That’s hackery, plain and simple.

                  You asked me why abstractions such as logic aren’t eligible for patenting.

                  I wrote: “To prevent the patent system from imploding as it was surely doing from the moment that Judge Rich and his short-sighted colleagues tried to turn subject matter eligibility into nothing more than a drafting requirement”.

                  This isn’t “hackery”, Martin. This is a historical fact and denying it is a sign of ign0rance and dishonesty. Please educate yourself or at least to try to understand why we are seeing the changes to the system that you seem to dislike.

                  MS: think there are several reasons for the judicial exception. I think a key problem has been lack of recognition

                  You’re not making sense, Martin. A “lack of recognition” has led to a ban on patenting new abstractions? What?

                  You’re wasting people’s time is what you’re doing.

                  Alan Durham, also recognized that there were at least two levels to the question. He mentioned Judge Rich a great number of times.

                  Nobody is suggesting that Judge Rich is the reason we ban patents on abstractions. Judge Rich just proved that the ban is important because if we ignore it the system turns into a sewer. People knew that in real time, by the way. They predicted what would happen. And it did happen.

                  Those are smart people worth paying attention to. The people who were wrong — and there were plenty of them — aren’t worth paying attention to, especially if they refuse to own up to their mistakes.

                5. Martin, thanks for the link to the Durham article. It is good to see that other recognize that “abstract” is being used as a term to define to distinct “tests:”

                  1. Whether an invention is claimed at the level of an idea; and

                  2. Whether a claim is directed to subject matter that is not eligible — not within the useful arts, which many describe loosely as being subject matter that is technological in nature.

                  I have been making this point since I read Stevens dissent in Bilski.

                  Also, I do not think that “abstract” should be considered a term to describe non statutory subject matter. It confuses. Non statutory subject matter is not technological, subject matter that is neither a machine, manufacture or composition, or a way of making any of these, or a way of using these to produce a new or improved result. An idea can be technological in nature. It is just that the claim is so broad as to claim not only a disclosed invention, but all inventions in the future that achieve the same result.

                6. Ned I agree 100% with your 5:10 PM comment.

                  MM, yes there is a lack of recognition of what Ned points out in the 5:10PM comment. You are happy with the policy outcome of Alice etc. and basically so am I- but I don’t think it rests on a solid foundation or goes far enough. Also I’m sorry for the hack comment, as for the swipe at anon.

                7. The Durham article is interesting – even meaty, but it implicitly makes several mistakes, including (importantly) the attempted conflation of Useful Arts as being merely another name for the Technological Arts.

                  This (as noted to Ned previously) is pure legal error.

                  I would caution you Mr. Snyder from taking too much from the writings of academics (which the article is), as there is a decided lack of any ethical control on the treatment of material, and you can easily fall prey to searching out and only accepting that which confirms a bias held dear going into the learning mode.

              3. You two appear to be talking past one another. If I may:

                I believe MM is asserting that the act of thinking (in the abstract) is not technological but rather biological (I assume). Whereas Martin is asserting that certain thoughts can be technological, such as thoughts, I suppose, regarding which stepper motor will provide the necessary precision and accuracy for positioning the business end of the cell distributor in ones new 3D organ printer (the Donor 5000), or if not which motor, then perhaps thoughts regarding what the necessary precision and accuracy are…those parameters then not being used or delivered to a human but to an automated motor selecting and purchasing system.

                — see what I did there?

        4. Martin, software that improves data processing on a computer through innovative techniques should be patentable. Organizing the relevant data for faster access is no different that a caching algorithm that everyone considers to be eligible.

          1. Ned: caching algorithm that everyone considers to be eligible.

            LOL Nice try, Ned.

            There’s tons of people who believe that software has no place in the patent system, period. And we have great arguments.

            Pretending that we don’t exist is pretty silly and it’s not going to get you anywhere.

            1. MM, do you distinguish between software and firmware? What about processors that execute complicated algorithms upon executing an instruction? What about FPGA designs that allow complicated algorithms to process large amounts of data much quicker than conventional serial processing ALU. I could go on an on.

              The distinction here is that algorithms executed by a computer generically improve the computer data processing capability. In the past, I have merely debated with anon and others how close to the computer the algorithms had to be before we considered the computer new. But in all of the above examples, the algorithms are part of the architecture of the computer.

              Now it seems to me that Versata is the first case that I have seen where the heart of the invention is an improved data processing algorithm. It is limited to be used for computing price, but the claimed novelty really has nothing to do with price as far as I can see.

              This is going to be interesting.

              1. Ned: do you distinguish between software claims and firmware claims?

                Not when the only difference between the claims is the presence of the word “firmware”.

                Note the editing. It’s important.

                1. Note the editing. It’s important.

                  Not nearly as important as understanding that selfsame bold and italicized word is taken from the perspective of the Person Having Ordinary Skill In The Art and recognizing your own propensity to NOT use the proper perspective in your drive-by monologues.

              2. Ned: What about processors that execute complicated algorithms upon executing an instruction? What about FPGA designs that allow complicated algorithms to process large amounts of data much quicker than conventional serial processing ALU. I could go on an on.

                So could I.

                I’m not sure what your point is.

                If you have some new physical device, claim it in objective structural terms distinguishing it from the old device. Then identify the closest similar structure in the prior art and explain why your physical modifications to prior art structure are non-obvious.

                You’ll probably need some evidence of unexpected results or some teaching away so be ready for that, too.

                This is how the system works, when it’s functioning properly and hasn’t gone completely off the rails.

                1. There is that “being made an issue” again of Malcolm pretending that one optional claim format is somehow the ONLY (de facto) legal claim format.

                  Has nothing to do with his opinion/Belieb/feelings that software – ALL software – is per se ineligible.

                  Sure.

                2. No doubt, MM.

                  A caching algorithm claimed out of context of a computer may be useful, but not confined to a particular use. But when claimed as part of a “generic” computer, we have a new or improved machine. It matters not that the computer is otherwise generic if the modified generic machine processes the same data faster.

                  I think the Versata claims cross that same line. They claim a specific method for obtaining old and known data that is faster than other methods. That should be enough.

                  But, we shall see.

              3. Machine components do not have to be a part of the machine to be patent eligible Ned.

                Your so-called debates with me on this point have always been you running away.

                1. anon, I do dispute the legal rule, I dispute that software is component of a machine because a human being uses a computer to operate on and execute software.

                  An arrow is not a component of a bow.

                  A bullet is not a component of a gun.

                  A passenger is not a component of a bus.

                  Water is not a component of a cup.

                  In contrast, firmware is a component of a special-purpose processor because it is physically part of the machine.

                  Similarly,

                  A string is a component of a bow.

                  A trigger a component of a gun.

                  A passenger seat is a component of a bus.

                  A handle is a component of a cup.

                  An engine is a component of a car.

                  A wing is a component of a plane.

                2. …the software in Diehr’s machine…

                  Oopsie for you.

                  Further, you – too – are forgetting about the functionally related aspect.

                  Further, you – again – are forgetting any first step in your eagerness to “use” software in that you first must change the machine by loading and re-configuring the machine with the software.

                  You attempt a distinction without a difference by attempting to draw a difference between firmware and software. You should be aware that there is no real difference at all.

                  (as to your “engine is a component of a car” – how do you feel about the modern engine in a modern car: chock full of software…)

                3. The “fact” of human interaction (which by the way is not always true), is a red herring.

                  Just like your attempted importation into law of “permanently afixed.”

                  Face it Ned – you do not have a legal leg to stand on here.

                4. The claim in Diehr was to a programmed computer in the context of a larger process.

                  Context, my dear anon, context.

                  I claim software. What does it do? Nothing by itself. It just sits there. But you contend it is a component of a machine. I say, claim the machine.

                  We can go around in circles. It is what the programmed computer does that is important.

                5. Nothing wrong with context Ned – I was just “employing” your very own “Point of Novelty”….

                  😉

                6. I say, claim the machine.

                  Therein, you miss the point: manufactures can be claimed in and of themselves – explicitly without having to claim the machine.

                  Why do you clench tight your eyes to this most basic understanding of patent law?

              4. Ned look at Stanacard v. Rubard, (Southern Dist. of New York 2015). Very simple algo, but new, non obvious, useful, and fully described. Found ineligible on 101/Alice grounds. I disagree with that outcome.

                I’ve explained now many times why I think human consumption of information is the red line. MM is not getting it or not wanting to get it- but the Durham paper walks right up to that notion as well. It’s about eligibility, not expression of ideas in claims. The phone algo above is consumed by phone switch gear.

                1. Martin, I looked for the case ( Stanacard v. Rubard) but only found your summary o the facts. Do you have the claim at issue there?

                2. US7346156B1

                  1. A method comprising: detecting an identity of a caller; receiving an assigned incoming telephone number; identifying a recipient associated with the assigned incoming telephone number and the identity; and connecting the caller and the recipient, wherein said caller has a plurality of assigned incoming telephone numbers to choose from, at least one of said plurality of assigned incoming telephone numbers being associated with said recipient, wherein each assigned incoming telephone number is associated with multiple recipient telephone numbers, a particular telephone number of a recipient being determined solely by a particular assigned incoming telephone number used by a particular identified caller and without input of further data by said caller, whereby said caller is not required to be within a particular network for making calls.

                  You can read the whole docket on RPX search. Case is still open for various non-patent claims. It’s an interesting one.

                3. Martin, the claim looks like a call-forwarding scheme with a twist. I am not sure why such a scheme is ineligible, as it does appear to be directed to an improvement in telephone systems, a kind of machine.

                  If you could, can you give us the gist as to why the scheme was found to be ineligible?

                4. Ned you can find the files linked to the docket on RPX search – it’s a terrific case (still alive on non-patent grounds) with lots of drama.

                  I love how the judge writes (Colleen Mahoney). I don’t think she was wrong on the 101 merits from a legal standpoint; only from a policy standpoint. Under Alice, she can find as she wishes anyway in a meaningful sense.

                  The 101 opinion is worth reading in full- it’s short.

            2. There’s tons of people who believe that software has no place in the patent system, period. And we have great arguments.

              Except for the fact that none of those arguments overcome the law as written by Congress, nor overcome the factual nature that software is a “ware” and a manufacture as understood by patent law. A manufacture expressly built to be a machine component.

              Your “beliefs” cannot overcome these things – no matter how you try to twist and obfuscate things.

    2. One more thing, the Versata petition clearly paints an ugly picture of the PTAB completely out of control in terms of its arrogation of power with respect to at least CBM’s with the Federal Circuit basically allowing it to do its own thing under theories of Chevron deference. Ugly. Very much so. Congress or the Supreme Court really has to do something because the Federal Circuit will not.

      One of the examples given by Versata was CBM instituted with respect to a mapping product or service that was determined to be a CBM because one could use the software to find an ATM.

      1. …you want to turn to the Wolf of the Supreme Court that itself unleashed the unlimited “Gist/Abstract” sword…

        C’mon Ned – don’t be so obtuse. Where did you think that the lower courts learned their lessons?

    3. I think that the resolution of the issue of whether an invention is technological also decides the issue of whether the patent passes 101.

      That would be clear legal error (and evidence of your past attempts to import TOO MUCH foreign law into US law).

      The US jurisprudence of Useful Arts is simply larger than any such “technological arts” view.

      This is basic stuff Ned.

    4. Assuming the SC takes this, how do they not invoke 101? Can’t they do that sua sponte? This claim will never pass Alice. From US patent 6,553,350.

      1. A method for determining a price of a product offered to a purchasing organization comprising: identifying one or more organizational groups, Within a hierarchy of organizational groups, of which the purchasing organization is a member, wherein pricing information is (i) stored in a data source and (II) associated with one or more of the organizational groups; retrieving from the data source the pricing information applicable to the one or more identified organizational groups; identifying one or more product groups, within a hierarchy of product groups, of which the product is a member, wherein pricing information is (i) stored in a data source and (ii) associated with one or more of the product groups; retrieving from the data source the pricing information applicable to the one or more identified product groups; sorting the retrieved pricing information applicable to the one or more identified organizational groups and the one or more identified product groups according to pricing types, the hierarchy of product groups and the hierarchy of organizational groups; and eliminating any of the pricing information that is less restrictive for the same pricing type; and determining the price of the product using the sorted pricing information that is not eliminated.

      Whether this is new, useful, a technological improvement, or beneficial (or any other adjective/adverb) is immaterial under Alice.

      1. Mr. Bob, “Whether this is … a technological improvement … is immaterial under Alice.”

        I sorry you think that way. Truly.

        1. Ned,

          Can you explain yourself?

          Please keep in mind that in Alice there were claims “Gisted” that both parties stipulated as meeting the statutory category aspect of 101 – which is where the “technological improvement” description would adhere.

          In other words, the words of the Court in Alice do in fact coincide with what PatentBob has written.

          “Truly”

          1. Anon, the court did seem to suggest that an improvement technology was the kind of application the court was looking for. That was what the Government argued to the Supremes was the kind of improvement that was eligible.

            In other words, if the improvement was to the business aspect of the the claimed business method, the claim was directed to an improvement in technology.

            1. Sorry Ned – that does not come close to what PatentBob wrote.

              Are you responding “by email” again – without bothering to come to the thread and read in context…?

  8. My theory is that once Trump wins the GOP nomination and Hillary wins the overall election, the GOP will immediately cave and vote for Garland (as opposed to letting Hillary elect a more “radical” justice).

    Personally, I think it’s ridiculous for the GOP (or the Dems) to delay a vote on a Supreme Court justice.

    1. Mr. Bob, if a Democrat wins the election, Obama may (and probably will) pull the nomination of Garland to “allow” the next president to make the nomination. In this manner the Democrats will nominate a candidate for the court more to their ideological liking. I was listening to a conversation along these lines on one of the MSNBC talk shows last night as I drove home.

    2. That is an interesting one PatentBob. Maybe Obama will forget to withdraw the nomination or their will be some quick action on the part of the Senate.

      You have to believe that to the Senate Garland would be better than anyone that Hillary would nominate.

        1. AAA JJ I hope President Hillary appoints Anita Hill. Seriously.

          Yes, that’s consistent with most of the rest of your serious opinions.

    3. They might as well cave as soon as Trump gets the nomination, unless they’re really interested in voting for Justice Christie.

        1. Only if the ballot reads, “Which of these candidates would you most like to see launched into deep space?”

        2. MM, what’s a good word or two to describe Trump. For the others have heard the following: “The Commie;” “The Screech;” and “Lying Ted.” But Trump?

          Give us something, MM.

      1. 6: Hillary? Win the election? lulzerskates

        People who know nothing about politics or elections said the same thing about Obama and they had better arguments.

        Maybe you’re being sarcastic — it’s hard to tell.

        At the end of the day, Trump will lose to Hillary for the same reason that McCain lost against Obama: there arent enough stone craazy racist ing0rami in the US to get Trump across the finish line.

        1. “People who know nothing about politics or elections said the same thing about Obama and they had better arguments.”

          I somewhat agree with you there, but then, on the other hand, I was surprised Obama beat Hillary, and voted for Obama myself (even went to see him pre-election), though I did not primary for him.

          Nobody really wants Hillary for their pres now though, except women, die hard liberals and some SJW’s. Bernie supporters seem unlikely to rally to her cause (non-cause?). She brings practically no policy direction to the table. She brings nearly no charisma to the table. She brings seemingly nothing to the table other than her gender and possibly “the establishment”. Oh and nostalgia and indescretions from her hubby.

          If she does win, I wouldn’t mind it that much. Only big thing is the fact that our “democracy” will slide further into “oligarchy” territory with the bush fam and now the clinton fam having a dynastic rule stretching 30 years or so with only a small break from Obama being in.

          “At the end of the day, Trump will lose to Hillary for the same reason that McCain lost against Obama: there arent enough stone craazy racist ing0rami in the US to get Trump across the finish line.”

          That’s the only thing that might get clinton the win. But you don’t have to be an ignorami/racist/crazy to want someone in the presidential office besides a career politician.

          1. At this point, I suspect if she gets the nomination and wins, it will be less because people want to put her in office than that the vast majority of the country will be not wanting Trump in office.

      2. 6, Sanders is against Washingtonncorruption; but standing right next to him his Hillary Clinton and he says nothing?

        I don’t think he is serious about corruption.

    4. PB: I think it’s ridiculous for the GOP (or the Dems) to delay a vote on a Supreme Court justice.

      LOL. Love the reference to “the Dems” — because the parties are prone to behave in the same way! Sure they are. That’s why both parties are nominating ultra-rich k00ks who brag about their crotch weights, right?

      The Dems didn’t even block a vote on Bork who was even more of a soc i 0 path than Thomas.

  9. I’m really looking forward to the answer to the 3rd question – “Whether a software-related invention that improves the performance of computer operations is patent eligible subject matter”!

    1. I would more look forward as to a cogent legal explanation of an answer that the manufacture of software, defined to be a machine component, would not be a patent eligible subject matter.

      Maybe then we could dispense with the canards and fictions such as that somehow “software is logic,” or “software is a story or book,” or “software is the thought of software,” or “software is the execution of software.”

      1. “Defined to be a machine component” in the legal fantasy world of anon? Pls cite an opinion defining software as such.

        Machines are currently defined as “concrete things, consisting of parts, or of certain devices and combination of devices” in the MPEP. Do you have better authority? (of course you do!)

        1. You say that as if the MPEP definition is in conflict with Anons.

          First, he wasn’t saying there was an opinion defining software as a component, he was addressing the situation where the specification of an application/patent defined software that way.

          Second, is said software was a component of a machine (i.e., a part of the machine)….

    2. Bastian, I agree. The answer has to be yes. But, then under Alice anything a judge doesn’t like isn’t eligible under 101. I guess the better performance could go into the “something more” category. I feel like at this point that Alice and 101 with the USPTO, Fed. Cir., Dist. Judges, and SCOTUS that I am playing some imaginary word game like we used to play in elementary school.

    3. The fact that the question has to be asked is almost embarrassing.

      The only difference between a computer and a classic mechanical machine is that electrons are being manipulated instead of entire atoms, and the motive force is electromagnetic instead of mechanical. Move electrons en masse, move atoms en masse. Whats the difference? A computer is nothing more than a machine but at smaller scale. If gates were instead nano-scale cogs and sprockets and levers and latches and pulleys, and if wires were instead nano-scale lines of compressed air or belts or threads, what would the practical difference be? If we were to describe functional groups of those nano-mechanical components, for instance, “shakers”, or “sorters”, or “crushers”, or “movers”, how would that be any different from logical groups of gates, such as “adders” or “arithmetic logic units” or “decoders” or “multiplexers”? And if we put those logical units into yet higher-level logical units, what would the difference be compared to “vehicles” or “robots” or “transmissions” or “compressors”?

        1. If they are machines that are no different than classic machines, then why is there any question about the patentability of something that improves the operation of the machines? If new arrangements of nano-parts are patentable, the issue has been resolved. If one can claim a classic mechanical machine as combination of its operations and functional qualities (springs, things that detect the presence or absence of a body/mass and trigger or control mechanical activity, etc.), then one can claim an electro-magnatic solid-state machine as a combination of its operations and functional qualities. A collection of one set of gates that takes the states of another set of gates and changes the states of the second set into new useful states (a physical transformation) is not patentable because …? Suppose the second set of gates originally contain a representation of a large integer, and the first set of gates changes their states to representations of two large prime numbers whose product is guaranteed to be equivalent to the large integer represented by the original state of the second set of gates. Assuming that the arrangement of the first set of gates is new and useful and non-0bvious, the first set of gates is not eligible for a patent because …?

          All patent claims involve abstraction. Even the narrowest multi-page detailed claim involves identity abstraction, as in, it describes a class of things that are identical in their _properties_ but are not truly identical because they are different objects … different matter. If one claims an “orange” in the most exquisite detail, it still describes a category of things, which is inherently abstract.

          When someone claims an arrangement of gates at a high level of abstraction, i.e., in units of organization that programmers deal with, they are only describing, like any other claim, a category of things. So long as the functions of public notice, definiteness, etc. are satisfied, the claim is no different than the claims in any other technical field.

          1. Break it down to an extremely simple example for him:

            Give him three resistors in a box.

            The resistors are configured to be in parallel.

            He has one machine.

            Take back the box and reconfigure the exact same three resistors. This time, configure them in series.

            You now have a different machine.

            Now multiple this possibility by a Google [pun intended].

            Somehow we have people here who just do not want to accept the fact that three resistors in series is just NOT the same thing as three resistors in parallel.

            “Go figure”

            1. thats absurd anon. make a machine that has a switching bus that runs the three resistors in a box in series, or in parallel. You have one machine. doing the same things without a switching bus makes two machines. A computer is a switching bus.

              1. You are almost there…

                (I have previously dealt with the canard of the toaster and the different toaster settings).

                Now, think about inherency and whether or not one can truly say that ALL improvements to [Old Box] are somehow “already in there.” Once you grasp the “House/Morse” fallacy, you will see that the manufacture of new and different software really does – and must – create a new machine, both in the legal and factual terrains.

                1. Courts dont agree with you anon, not in the USA or the EU. Is a loom loaded with a different weaving design a new loom? Is a CNC machine loaded with a new tool design a new machine? Is an information processing machine loaded with new instructions to process a new machine?

                  The answer is clearly no. Software has not been held to be a machine component by any court- if it has, please cite.

                  Instead, as of 2016, the execution of software to a result is held as a process, the only statutory category that makes any sense at all. Can you cite authority otherwise?

                2. Unexecuted software is a writing. are you suggesting it is something else?

                  Nothing functional in a CNC program to change what a machine tool does? Uh huh. Tell me another one.

                3. Unexecuted software is a writing. are you suggesting it is something else?

                  Don’t need to – you are (or should be) aware that a writing can have patentable weight, right?

                  A writing can be a manufacture – look up how the word “manufacture” is understood in the patent terrain.

                  The CNC example is workpiece centric – you do understand that distinction, right?

                4. and the results of your “new machine” when you run different software are not “workpiece” centric? A writing has “patentable weight” ?

                  Show me an item of writing that has been granted a patent. Please.

                5. … the common sense difference between the thought of software and software (remembering the facet from copyright law that a different aspect of the thing called software earns copyright protection, and to so earn, the thing must be in fixed media)…

                  Basically, Mr. Snyder, everything that I have ever attempted to teach you with, but that you were unwilling to learn because of your pre-disposed mindset.

    4. Bastian, I agree. Versata made a good argument that their inventions was not a business method, but an improvement to computer processing qua computer processing.

      Once I developed software that reduced the time to run payroll at my company, a Fortune 200, from 20 hours to 4. Top management was highly complementary. But at the time, no one considered patenting what I had done.

      Versata’s software is of the same ilk. It delivered the same price quotes as before, but much faster through innovative software. I would say that this is exactly the kind of software that should be eligible.

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