In a new petition for writ of certiorari, Jericho Systems has asked the Supreme Court to review its abstract idea test:
Whether, under this Court’s precedent in Alice Corp. Party Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014), and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012), a patent may be invalidated as an “abstract idea” under 35 U.S.C. § 101 when it claims a specific implementation and does not preempt other uses of the abstract idea.
Jericho Systems Corp v. Axiomatics – Petition for Certiorari.
The district court ended the case with a judgment on the pleadings – finding that the asserted claims of Jericho’s Patent No. 8,560,836 lacked eligibility under Alice and Mayo (focusing on claim 1 as axiomatic).
Using the ‘gist analysis’, the district court found that:
[T]he gist of the claim involves a user entering a request for access, looking up the rule for access, determining what information is needed to apply the rule, obtaining that information, and then applying the information to the rule to make a decision.
This is an abstract idea. The abstract idea being that people who meet certain requirements are allowed to do certain things. This is like Axiomatic’s example of making a determination if somebody is old enough to buy an R rated movie ticket.
Thus, finding that the claim encompasses an abstract idea, the district court moved to Step 2 of the Alice/Mayo analysis – and again sided with the defendant:
As al ready stated, [the claimed invention simply] uses standard computing processes to implement an idea unrelated to computer technology. It does not change [sic] way a computer functions or the way that the internet operates.
On appeal, the Federal Circuit affirmed in a R.36 judgment without opinion. On this point, the petition cites Jason Rantanen’s recent post indicating that around 50% of Federal Circuit decisions are being resolved without opinion. Jason Rantanen, Data on Federal Circuit Appeals and Decisions, PATENTLY-O (June 2, 2016).
A grant of certiorari in this case would serve as a salutary reminder to the Federal Circuit about the appropriate use of one-word affirmances—which currently resolve over 50 percent of that court’s cases. Rantanen, supra (showing that the percentage of Rule 36 opinions in appeals from district courts has increased from 21 percent to 43 percent in less than a decade). If the Federal Circuit is content to allow district court opinions to effectively substitute for its own opinions at such a high rate, that practice should not be permitted to “cert proof ” issues that are otherwise cleanly presented and worthy of this Court’s review. Cf. Philip P. Mann, When the going gets tough . . . Rule 36!, IP Litigation Blog (Jan. 14, 2016) (arguing that the Federal Circuit relies on summary affirmance under Rule 36 to “sidestep difficult issues on appeal and simply affirm”).
One issue that the district court (and obviously the Federal Circuit) failed to address was that of preemption – what is the relevance of the fact that substantial, practical, an and non-infringing applications of the given abstract idea are available and not covered by the patent. Petitioner argues that issue is critical to the analysis. “[T]he lower courts regularly decline any discussion of preemption in favor of rote analysis of patent language at so high a level of generality that the claim language is rendered all but meaningless. This leads to the untenable result that patents—such as the one here—that do not preempt other uses of the alleged “abstract idea” at issue are nevertheless held to violate Alice.”
Looks like Axiomatics declined to respond. I guess they don’t think much will come of the petition.
If section 101 did not exist, this patent would still be an utter failure for some combination of failing 102/103 and 112. In other words, you don’t need 101 to know that this mess is obvious, anticipated, and useless as a teaching or disclosure for someone trying to solve a specific problem a priori.
But 101 does exist, and eligibility is thus inherently distinguishable from patentability.
The current Alice test and this whole line of 101 jurisprudence is an unsustainable random walk because “abstraction” is entirely subjective and “inventive concept” is being litigated without use of the extensive body of doctrine and practice developed for 102/103.
I disagree with MM that new, useful, fully described and non-obvious information/algos should not be eligible as “processes” under Section 101 merely because they are intangible. Therefore, I don’t believe that “abstract” for legal purposes is limited to intangibility, although all abstractions are intangible. The MoT probably can’t be the patent law of the information age.
To fix the current doctrine, it needs to be recognized that “abstract” for patent purposes actually has two distinct meanings. The first meaning affects eligibility, and the second meaning affects patentability.
At eligibility, the abstraction must be intrinsic to the invention-and yet cannot mean merely intangible because too many useful, new inventions rely on pure information for effect. Looking at the root of the word abstract, and it’s meaning in the world, I believe that the ultimate determination of an abstract idea occurs when information is consumed by a human being. Therefore, if the result of a process is information, and the utility of the information arises from human consumption, the invention should not be eligible for a patent.
At patentability, an abstract idea something else entirely. An abstract patent claim is an expression of ideas that may not be patentable inventions based on a combination of lack of utility, lack of novelty, the lack of ability and/or low probability of one skilled in an identifiable, pertinent art to come up with the invention, or failure to describe the idea with enough detail to enable an invention or useful teaching.
If KSR were faithfully applied, the kind of junk posted in this thread could go out on 102/103/ 112. Applying 101 is currently far more desirable because it’s early in a case and far cheaper, which solves a major, unremitting problem with justice and the patent system; the costs deny justice for everyone involved for all but the largest disputes. As of now, eligibility is seen as the threshold issue, but in an appropriate procedure, a baseline of patentability should also be a threshold issue, construed just as the terms of a claim are, ideally at the Markman stage, as the usual mixture of factual underpinnings of a legal question.
This current case is straightforward to me: the invention is a method. The method results in information. The information is consumed by a computer. The method is patent eligible. The method is useless as a teaching and obvious because computers and people have been creating and using that kind of information for centuries, so the claims are an abstraction of an abstraction.
Invalid, good day sir.
My legal and historical background for these concepts can be found here
I have it on good authority that there are 20 legal errors in the abstract alone. I welcome actual criticism.
“Therefore, if the result of a process is information, and the utility of the information arises from human consumption, the invention should not be eligible for a patent. ”
Why?
If someone invents a machine that reliably picks the winners at Pimlico 6 hours before the race, or identifies earth crossing asteroids, from data fed into it from elsewhere, for example, why shouldn’t that be patentable?
ALL utility (in the final analysis) is human consumption based.
That’s just one of Mr. Snyder’s absolute failings.
Everything is made of matter. Ergo all matter is patentable?
Absolute failings? Do you make any sense to anyone?
“ Do you make any sense to anyone?”
Absolutely.
And that things are made of matter does NOT mean that ALL matter meets one of the statutory categories.
Matter still needs the hand of man for it to fit into a statutory category (leastwise for the category that software fits into: a manufacture).
You are still trying to fight a battle on terrain that you refuse to understand.
Because “someone invents a machine” means the invention is not information, it’s a machine.
Fine. If someone invents a process that reliably picks the winners at Pimlico 6 hours before the race, or identifies earth crossing asteroids, from data fed into it from elsewhere, for example, why shouldn’t that be patentable?
someone invents a process that reliably picks the winners at Pimlico 6 hours before the race
versus
someone …identifies earth crossing asteroids
Setting aside the fact that logic is ineligible for patenting and always will be (boo hoo for u), the great reason that the first method is ineligible to keep the PTO and the court system and the public free from endless reams of crxppy “maximize chance of winning bets” patents that advance precisely nothing in any useful art and, instead, encourage l0wlife attorneys and similary inclined speculators to race to the b0ttom with “monetization schemes.”
Does it sound familiar? Gosh, it sure should.
MM yes, winning at the track is not a useful art, but I’d like to answer Les’s point. Let’s substitute the picking the ponies process with a digital currency architecture instead.
We don’t patent meanings- MM says we should not patent what he calls “logic” and maybe we should not the Platonic sense.
Yet algorithms that control information processes with real-world effects can reasonably be understood as architectural structure. MM can deny that, but a great many jurists and professors don’t agree.
The apparently intractable problem is defining when structure is meaningful for patent purposes as either a type of invention or a specific invention, rather than structure as an expression of abstraction as in the design of a novel or a social construct like “winning”
Winning a horse race is a human social construct. The meaning is in a human mind. Likewise, using a token as a medium of exchange in the currency example is a social convention.
However, if you have a truly new, non-obvious and fully described algorithm that helps manage digital transactions between non-human actors, those portions not consumed by humans should be patent-eligible. I can’t see why not under the current understanding of Section 101.
anon, face it, you don’t have one legal argument against my proposal. I know you don’t or you would have used it already.
“anon, face it, you don’t have one legal argument against my proposal. I know you don’t or you would have used it already.”
LOL – I have only ripped you apart on the law for what? Years now? To say that I have provided no legal argument is beyond any sense of reason.
Your proposal is a fallacy. I have not read beyond the abstract of your proposal because that was enough to show me how much fantasy you were engaging in.
The major point – already shared immediately here with you here before your errant accusation – is that you just don’t get the patent landscape of utility. You seek a false distinction of “consumed by.”
I will say this though: even though you say that I have brought no “legal points” to your attention, not only have I done so, you have actually “learned” some of those points and you reflect some of what I have taught you (the better path for you of course is to be polite and say “thank you”).
For a few examples of tidbits that I was the one that impressed upon you:
“ But 101 does exist, and eligibility is thus inherently distinguishable from patentability.”
[and yet, how much deliberate conflation do we see by those who supposedly know better (self professed attorneys, who want a different law based on their desired ends)…?]
“ The current Alice test and this whole line of 101 jurisprudence is an unsustainable random walk because “abstraction” is entirely subjective and “inventive concept” is being litigated without use of the extensive body of doctrine and practice developed for 102/103.”
[you are almost there to the point of understanding what happened in 1952 with the creation of 103 and the move by the legislative branch (Congress) to remove a prior grant of power to the judicial branch to use the t001 of common law to set the definition of “invention.”]
“ The MoT probably can’t be the patent law of the information age.”
[Again, almost there – MoT is NOT the law of ANY age – it is ONLY a clue]
“Applying 101 is currently far more desirable because it’s early in a case and far cheaper, which solves a major, unremitting problem with justice and the patent system; the costs deny justice for everyone involved for all but the largest disputes”
[Here, you are further off, as you once were closer with understanding that 101 CANNOT be a substitute for 102/103/112 – no matter how much more “convenient” that would be.]
“ This current case is straightforward to me: the invention is a method… The method is patent eligible.”
[At least you see that (and not be like Ned who clenches tight his eyes to 35 USC 100(b) and what happened in 1952).]
“Yet algorithms that control information processes with real-world effects can reasonably be understood as architectural structure. MM can deny that, but a great many jurists and professors don’t agree.”
[Even Malcolm’s propensity for “objective physical structure” is an easily defeated fallacy, as a piece of software very well could be described in exacting “objective physical structure” in claims detailing every pit or demarcation on a physical item (your Beauregard claims in physical terms). The only thing this would do would to have a claim that is largely unintelligible to a human being covering tens or even hundreds of pages long – if you think you heard anti-software people whine before, you would REALLY here them whine if they got “what they wanted” with claims in “objective physical structure.” And remember as well, that this type of “writing” is exactly the type of writing that would pass the exceptions to the judicial doctrine of printed matter. See my very own easy to follow explication using simple Set Theory.]
Next time, simply say “thank you” and here is my non-lawyerly suggestion for changing patent law.
Like I said, you got nuthin.
There is no reason that “abstract ideas” cannot be reasonably held to mean “human consumption of information”, and the judicial exception for “abstract ideas” is on rock-solid legal ground.
LOL – I have everything with the knowledge of law and history – and you have your fantasies.
You want ot make that claim of “on legal solid ground” again…? Are you going to say “with real names”…?
Please do – and please share those real names.
Otherwise, all you have is your own bleating – and we have seen your disconnections from the terrain of law.
You are still tripping all over yourself.
I appreciate your desire to answer my question.
However. You did not.
I know you want to draw a line at “consumed by humans”. But everything we do is consumed by humans. The light from Edison’s bulb is “consumed by humans”. It is information consumed by the eyes of humans. Contained within the information is the location of the damn coffee table edge….without which our shins are otherwise gouged to hell.
The cotton from the gin is also consumed by humans, as is Crestor, Lipitor and Viagra.
….and of course picking winners or predetermining outcomes is a useful art.
So, why is consumption by humans a reason to make something ineligible for patenting?
Les, a lightbulb is a manufacture. Ginned Cotton is a manufacture. Drugs are a manufacture. “Authentication” is a kind of information.
My rule is limited to information because all information is 100% abstract, but some information is new and useful. It does not apply to “consumption” of tangible goods.
Information consumed by humans is impermissibly abstract because it presents problems with other Constitutional rights when attempting to exclude its use, and because it means something different to every person.
Information consumed by non-humans means he same thing each and every time, because there is no “meaning” beyond the utility of the information and there is no abstraction. Ever straight mathematics- without human apprehension- is a different thing in the world.
So, patentability is in the eye of the consumer?
Arbitrary…
Software is a manufacture.
“My lack of legal and historical background for these concepts can be found here”
Fixed your editing mistake for you, Mr. Snyder.
I am also waiting for you to back up your rather arrogant “I-use-my-real-name” boast and supply those real names of attorneys that vouched for your “analysis” to be within the legislative and judicial domain to be implemented with the laws as they currently stand.
(I have it on good word that Silence Dogood is waiting for those “real names” as well).
If for kicks and shiggles I were to disclose names, which I never, ever would, what difference would it make? None, of course.
All the time you waste; not a single actual argument about why the idea does not fit current law or doctrine.
Maybe because you got nuthin?
LOL – YOU are the one that made a brazen boast that you then turn around and refuse to back up.
Let’s see you back up your hubris – or feel free to retract it.
Martin:
…new, useful, fully described and non-obvious information/algos should [] be eligible as “processes” under Section 101 [regardless that] they are intangible.
Huh? Truly? The Supreme Court has twice held that math is like a law of nature. Such cannot be patented in the abstract. Adding that they be conducted on a computer adds nothing. Adding other inputs and output that are purely conventional, as to the source of data or where to store or display the numbers, adds nothing.
What is remarkable that the PTO continues to issue patents on math, limited only by broad sources of data, trial outputs and that they be conduced on processors. Remarkable and tragic.
Good thing then Ned that software is not math.
anon, what does an ALU do?
Does not matter what it DOES.
Executing software is not software.
anon, what you mean to say is that computer have inputs and outputs that can provide useful work under control of software.
But simply using a computer to calculate math is not made patentable by calling the algorithm software.
What I mean to say is exactly what I do say – and that is just not what you say that I say.
Software is a manufacture by the hand of man defined to be a machine component.
Software is not the thought of software.
Software is not the execution of software. (emphasized so that you don’t miss it this time).
Software is a “ware,” and for the Person Having Ordinary Skill In The Art, the “wares” of software, hardware, and firmware are equivalent in the patent sense (note for the goal post movers, this is not the same as “exactly the same as”).
…and once again, let us disabuse you of your fallacy of “But simply using a computer to and remind you that you cannot skip over the first step and “just use” a machine that you first have to change by adding the machine component and manufacture in its own right of software.
Repeating your error of trying to skip this item does not make your error go away.
Remember, the proper patent doctrine that you should remember is inherency. Ask yourself of the computer – with NO software – inherently has ALL future improvements to the machine “already in there.”
We’ve been over this literally hundreds of times Ned. Don’t you think that it is time that you treat these points that I present with some inte11ectual honesty?
Software is not a manufacture. See Allvoice.
Software is not a machine component. Try googling “main components of a computer”. Note the lack of “software” making any of those lists.
Software and hardware are not equivalent in the patent sense. They do not process data “in substantially the same way” (Doctrine of Equivalents). Ask anyone who has designed digital hardware and authored software.
Altering the information stored in the computer (including the set of instructions for the computer to execute) is how you use a computer.
Count Dobu – wrong an all counts (as usual).
Software is not a manufacture. See Allvoice.
That case just does not hold what you think it holds. I have already seen your Allvoice and distinguished it – I raise you an Alappat (en banc and controlling) and an In re Nazomi. (you not only lose – you are crushed).
“Try googling “main components of a computer”. Note the lack of “software” making any of those lists.”
Show me a list you are looking at.
Does it say “computer hardware components”?
Are you forgetting the part of 101 (any improvement thereof) with your focus on “main”….?
Just because a component is designed to be easily exchanged does NOT mean it is any less of a component. Quite in fact, the BOON of software is that the “ware” IS soft and thus easily exchanged. Quite in fact, the versatility that is essential to the modern age of innovation is that “software” is the single BEST component after your “main” (read that as standard) components, and the fact that no one piece of software must be “standard” only shows that each is an improvement of the standard machine. In other words, you raise a point that is in MY favor.
Thanks.
And make no mistake, hardware IS replicated as software and software can be devised in hardware – each of these are design choices which are IN FACT exchangeable to those In The Art. Which of course, highlights your next miss:
“Software and hardware are not equivalent in the patent sense. They do not process data “in substantially the same way” (Doctrine of Equivalents). Ask anyone who has designed digital hardware and authored software.”
You are treating far too narrowly the “substantially” portion. Let me ask me – and I have the answer, and it is not the answer you want. Sorry but those are the facts. Eppur si muove.
Also, look up the MathS view – I will bet that you never chased down the writings PoIR over at Techdirt, did you? Even though I informed you of that lead what, more than a year ago?
Then we come to:
“Altering the information stored in the computer (including the set of instructions for the computer to execute) is how you use a computer.”
This is your most obvious
F
A
I
L
Try the Grand Hall experiment. You first have to change a machine by re-configuring the machine WITH the machine component called software BEFORE you can use it.
“How you use it” is necessarily limited by the components at hand. The proper patent doctrine that you need to recognize on this point is the patent doctrine of inherency. DO you even have an inkling of what that doctrine means?
Hint: it means you lose – you have tripped into the House/Morse fallacy. The quip of “all computers are the same” belies the plain fact that an improved machine is quite different from an unimproved machine (the House part according to the false logic of the TV show House). The plain fact of the matter is that NOT all future improvements are “already in there” (the Morse part).
Anon,
Your short script is showing. All your oft-repeated misinformation. Fine, let’s dance this dance once more.
You failed to distinguish Allvoice.
A one-vote majority in Alappat claiming that software magically transforms computers between being general-purpose and special-purpose is hardly the “crushing” blow you seem to think. And Judge Rich’s mistake is being chipped away, year by year, case by case.
Nazomi does not hold what you think it holds. The ARM processor in Nazomi is distinguisihable in that it was deliberately designed to make some hardware circuits inaccessible in the absence of particular enabling software. This one instance of software creating a “new machine” is not applicable to the general case.
I am not crushed, you are delusional.
So look at the lists of computer components that don’t say “hardware”. See how many include “software” as a component. If any. And you think that lack proves a point in your favor? Delusional.
If you think hardware and software perform in “substantially the same way”, then you belong with the nay-sayers mocking Galileo. “Eppur si muove” – your self-aggrandizement is laughable, as usual.
And your championing of PoIR is your most laughable, remarkable
* F * A * I * L * .
I have admired PoIR’s writings since the Groklaw days. I would read them the same day they were posted. He wrote extensively about how software is math, and provided tutorials on lambda calculus that were targeted for an audience of legal professionals.
In fact, here’s a quote from PoIR on your beloved Alappat:
groklaw.net
And your usual Horse/Mouse shenanigans with the word “improvement”. Not even worth (yet another) response.
“Your short script is showing. All your oft-repeated misinformation. Fine, let’s dance this dance once more…You failed to distinguish Allvoice.”
Not at all and wrong on all counts yet again Count.
I HAVE distinguished Allvoice and even provided you TWO case cites to your supposed one.
My “script” is not a script, and it is not short.
I have provided NO misinformation.
You seem to want to dance an odd dance my friend – full of accusing me of that which you do. Playing “the mirror” does not work for you because you have an obvious shortfall in that you do not understand either patent law or the reality that the Grand Hall experiment so easily shows.
“A one-vote majority in Alappat claiming that software magically transforms computers between being general-purpose and special-purpose is hardly the “crushing” blow you seem to think. And Judge Rich’s mistake is being chipped away, year by year, case by case.”
It is not a “mistake” and there has been NO “chipping away.” Further – it is the opposite of what you claim as far as that “magic” goes, as it is YOUR “version of reality that would force a “magic” to have to happen in that somehow – by magic – ‘old box’ has this mysterious new ability which was not there previously. THIS is exactly why I suggest that you use the patent doctrine of inherency.
“ And your usual Horse/Mouse shenanigans with the word “improvement”. Not even worth (yet another) response.”
That’s pretty funny as you have NEVER provided a response on point to the “shenanigans” (of which it is evident that you are playing shenanigans with messing up the names). Amateurish comedy is no substitute for you even once taking on the point presented.
“Nazomi does not hold what you think it holds…This one instance of software creating a “new machine” is not applicable to the general case… I am not crushed, you are delusional. ”
It is applicable and you are crushed – and delusional to think otherwise. I need but one example to blow your premise out of the water. There is your equivalency. Deal with it.
“So look at the lists of computer components that don’t say “hardware”. See how many include “software” as a component. If any. And you think that lack proves a point in your favor? Delusional.”
Not at all – I note that you did not do as I ask. Instead you merely attempt an insult. Your attempt is empty and meaningless.
“If you think hardware and software perform in “substantially the same way”, then you belong with the nay-sayers mocking Galileo. “Eppur si muove” – your self-aggrandizement is laughable, as usual.”
No self-aggrandizement, and I certainly am not the nay-sayer ignoring reality here ( that would be you).
“And your championing of PoIR is your most laughable, remarkable…I have admired PoIR’s writings since the Groklaw days. I would read them the same day they were posted. He wrote extensively about how software is math, and provided tutorials on lambda calculus that were targeted for an audience of legal professionals. ”
LOL – another great moment in your own failure for what I reference PoIR for: MathS as a philosophy. You ignore the point you do not like (EASE of equivalence) and you do not GET that what the “champion” effuses about is a philosophy. He is one of the greatest failures of anti=software patent muckery because he cannot understand the very basic difference between math and applied math – and that applied math has ALWAYS been patent eligible. The quote and view of Alappat shows that he just does not get it – confusing “does” – the execution – with something that IS.
As I have pointed out: the execution of software is not software.
You have to understand THAT basic difference to even begin to talk intelligently on this topic.
You are not there yet.
…as to Allvoice, let me repeat one of the distinguishing points:
That case is marred by the procedural aspects and what THAT applicant stated. JUST AS WITH statements of what is prior art, the applicant’s statements are held against the applicant – whether they are true or not. The important thing here son, is context, legal context – and not the sound-byte that you want to apply.
…and as for PoIR, one can tell the lemmings that follow that philosophical clapCR@P – they are easily misguided and only too readily march right off the cliff.
And now we’re at the “No I don’t, YOU do!” step of the “anon” short script. How tiresome.
You keep claiming to have distinguished Allvoice, but you just keep getting it wrong.
It was the petitioners who tried to get away with the flawed argument that “software necessarily implies hardware”, and the court slapped them down. But that doesn’t stop you from railing about “thought” or “execution” of software, trying to coerce all who will engage with you to bend to your will, and ignore how the word software is used by an entire worldwide industry, just because you so desperately need software to be a computer component. News flash: it’s not. We do not yield. Eppur si muove.
I gave you the means to gather over 100 million lists of what everyone but you considers the main components of a computer. You demand I pick out something from the list for you? Okay, I pick the first 1 million lists. Knock yourself out.
Your ONE example is distinguishable in that it ONLY applies to the specially-made processor that is the subject of Nazomi. Not crushed. And you’re getting your arguments mixed up, Nazomi was about “new machine”, not “equivalency”. Delusional.
“you have NEVER provided a response on point” — good grief. I have, over half a dozen times, and I grow weary of your repeated prevarications. Or delusions. Take your pick.
And I can’t help but laugh — you’ve been praising the writings of PoIR for, what, over a year now? And suddenly he’s chopped liver. Fickle much?
“And now we’re at the “No I don’t, YOU do!” step of the “anon” short script. How tiresome.”
And it is tiresome that you play your mirror games.
“You keep claiming to have distinguishedAllvoice, but you just keep getting it wrong.”
Except I do not. I have replied with an additional distinguishment this time. And with not one (controlling) but with two case cites. I see what is really so tiresome for you.
“It was the petitioners who tried to get away with the flawed argument that “software necessarily implies hardware”, and the court slapped them down. ”
IT was the petitioner’s flawed attempt – after already bungling on the record – a record that is held against that singular person. As I pointed out, when an applicant states something on the record – it is held against them – think about the “admission” of something being prior art (when it is not in fact prior art).
“But that doesn’t stop you from railing about “thought” or “execution” of software, trying to coerce all who will engage with you to bend to your will, and ignore how the word software is used by an entire worldwide industry, just because you so desperately need software to be a computer component. News flash: it’s not. We do not yield.Eppur si muove.”
First – you are using the Eppur si muove phrase incorrectly.
Second your “will” is not the will of PHOSITA, but rather it is merely the song of the lemming march.
Third, It is not I that needs anything – I merely reflect what is (a proper application of Eppur si muove).
Fourth, I ignore nothing about “what the entire industry” does – I DO understand the ease of language – but I also DO understand the reality that execution of something is different than the objective something. I DO understand the reality that the thought of something is different than the objective something. “This is not a pipe.” And I do understand (unlike you) that law is involved here – not just some phantastical philospohiscally driven SEGMENT of industry who cannot get out of their own way up Lemming Hill.
“I gave you the means to gather over 100 million lists of what everyone but you considers the main components of a computer. You demand I pick out something from the list for you? Okay, I pick the first 1 million lists. Knock yourself out.”
You choose to hand wave. How nice for you. You did not notice then the question I put to you. GO back and notice, as your handwaving is entirely inconsequential.
“Your ONE example is distinguishable in that it ONLY applies to the specially-made processor that is the subject of Nazomi. Not crushed. And you’re getting your arguments mixed up, Nazomi was about “new machine”, not “equivalency”. Delusional.”
Not at all – You missed Alappat and the controlling law as to what happens and makes ALL processors “special” when those processors have been changed – as MUST happen prior to ANY attempt at “just use.”
“you have NEVER provided a response on point” — “good grief. I have, over half a dozen times, and I grow weary of your repeated prevarications. Or delusions. Take your pick.”
Except not – name calling and clutching your own errors are just not on point responses to the points that I have provided.
“And I can’t help but laugh — you’ve been praising the writings of PoIR for, what, over a year now? And suddenly he’s chopped liver. Fickle much?”
Once again – you miss the point of exactly why I reference the writings of PoIR. Read my last response which explains that I am using his mantra of MathS against the lemming mentality. Then see – as I have always maintained – that you need to recognize the difference between math and applied math.
You have NOT done these things yet. Instead, you hunker down in lemming mode and keep marching up your hill.
“What is remarkable that the PTO continues to issue patents on math, limited only by broad sources of data, trial outputs and that they be conduced on processors. Remarkable and tragic.”
So if it were a narrow source of data you would be ok with it?
Les, yes. See, Diehr.
What a hypocrite – yes Ned, see Diehr and Diehr’s “Point of Novelty” being….
….software.
Dennis, would it have been so hard to reproduce some of THE CLAIMS at issue, so we can judge for ourselves the reasonableness, vel non, of the judge’s “gist” analysis? Yeah, I know, there’s a link to the patent, but still…just because SCOTUS has resuscitated the habit of ignoring what the claims actually say doesn’t mean you should go down that rabbit hole.
Atari Man,
I think that you have a sense of a presence of a rabbit hole, but I think that you are not going to avoid tumbling down that rabbit hole if you too want to see the claims and apply the “Gist” technique yourself.
The “Gist” (or apparently the ‘politically correct’ phrase of “directed to“) IS the rabbit hole.
Atari Man –
1) Much to his credit, Dennis included a link to the Google display for the patent in the article. On that page all the claims are displayed and there is a button provided to download the patent.
2) I pasted claim 1 at 2.4.
I walked through each element of the junk claims at 6.
Obligatory: Well that’s Axiomatic.
DC: Will the Walls Come Tumbling Down
Nope.
This has been another edition of straight answers to simple questions.
But let’s walk through this incredibly junky claim and have a laugh or two, shall we?
Before we begin, let’s first acknowledge two basic facts.
First, patent claims are either eligible or they are not eligible. A lack of eligibility of the patent claim doesn’t mean that a real-world machine or method doesn’t (or can’t) exist in the material world. And it doesn’t mean that machine or method is devoid of use. What the lack of eligibility does mean (depending, of course, on the reason for ineligibility) is that the claimed machine or method is f@tally lacking in the recitation of the sorts of novel structural or novel physical transformations that our patent system was designed and intended to protect and promote.
Second, patent claims in certain “arts” — particularly the so-called “computing arts” — are drafted by lawyers who go to great lengths to obscure the fact that “new” logic is a quintessential example of an abstraction that is ineligible for patenting. Typically that obfuscation is achieved by either larding the claim up with excess verbiage or using jargon that is “structure-esque”to impart physicality to the ineligible abstractions (e.g., in the same way that “new” and useful sentences or arguments might have “beginnings”, “middles” and “ends” — so what? they’re still ineligible). Of course, a combination of these obfuscating t0ols may also be utilized.
Okay, now let’s proceed to the claim.
1. A method to process authenticated user requests to access resources, the method comprising:
We can stop right there and pause for a moment because the red flag is already flying up the flagpole at warp speed. “Authenticating?” The status of being deemed “authentic” is itself an abstraction. There’s no objective measure of “authenticity” such someone can look at something and say “This is authentic” or “this isn’t authentic.” Consider: is this comment “authentic”? The “correct” answer is completely dependent on abstract logical rules that people are free to arbitrarily apply as they wish (and people do that, all the time, every day). So already this junky claim (and every claim like it) is in serious trouble.
Everyone will also recognize, and it should go without saying, that people have been “authenticating” requests to “access” stuff since as long as people have been on the earth. How did (and do) people perform that task? They use ever evolving infinitely adaptable rules and logic, of course, and they apply those rules and logic to the request based on information (wait for it!) about the request and the requestor. This elementary fact of life presents an additional huge problem for our super genius patentees. After all, the patentees didn’t invent programmable computers, which — as everyone also knows — are merely t0 ols for automating ineligible logical processes.
So let’s see the rest of this awesome logical process that these junk patent w0rshippers are crying about all the way to the Supreme Court:
receiving from a user a request
LOL. Yes, well, that’s usually how it begins. Well done, scriveners! Juice up the claim with needless verbiage! It looks so much “bigger” that way. And bigger is usually better (at the PTO, at least).
to perform an action on a resource;
Oooh! There’s an “action” in the claim! On a “resource”! Simple minds may find themselves confused already. The rest of us will appreciate the fact that (1) this “action” need never be performed and is irrelevant to the claimed “innovation” and (2) the “resource” is information. Yup. More problems for our brilliant “innovators.” But they’re very serious people! They have a Supreme Court case! There must be some meat here, right? So let’s soldier on.
receiving, by a server, a rule associated with the action, wherein the server comprises a processor and operatively associated memory
Ah, so we’re in the mystical magical realm of super techn0 “do it on a comp00ter” stuff! Whoo hoo! It’s like rocket science except without the rocket and without the science. Yes, folks, comp00ters are sometimes called “servers” and, yes, they comprise “processors” (for computing — w0wee z0wee!) and memories. That’s all ancient stuff. But our scriveners needed to recite that just in case anybody forgot (riiiight). As for the “rule associated with the action”, that’s just more abstraction. “Associated” with? Is that a covalent “association” or an ionic “association”? Just kidding! The correct answer is that there’s no “association” other than in the abstract sense that a “rule” exists which our ancient rule-applying t0 0l (i.e., the comp00ter) is going to be apply to process requests for particular “actions”. As noted above, all this “rule applying” is just ancient (and ineligible) logic, as old as civilization itself.
determining a plurality of attributes required to evaluate the rule;
More logic! The claim is poorly written (to say the least) and here it seems to suggest that our rule-applying t0 0l (i.e., the comp00ter) is at some point going to use l0gic (and rules) to “evaluate” the “received” rule (remember that “rule”? it’s the “rule” that was “associated” with the “action” that was requested by the user). But that’s not what happens. It’s the “request” that will be “evaluated.” Setting the gaping drafting incompetence aside (after all, this is a Supreme Court case — LOL), what we do know is that the comp00ter will “determine” at least two “attributes”. Now, as written, this clause would seem to refer to “attributes” of “the rule” but a quick glance at the h0rrifically written specification reveals that the “attributes” are “attributes” of the user (e.g., “safe” or “dangerous”) or “attributes” of the resource that is the object of the request (e.g., “safe” or “dangerous”). Oddly, the claim doesn’t bother to tell us how the comp00ter makes this “determination” but presumably the comp00ter is going to … apply rules and logic to make that determination (remember, kids: that’s what comp00ters do!).
And now at last we’ve come to the most amazing part of the “innovation.” You probably want to sit down for this because your mind will be blown.
classifying at least a portion of the plurality of attributes by connector, wherein each connector is in communication with an associated remote data source comprising values for attributes classified with the connector;
We’re going remote! We’re going remote! Oh my goodness nobody could have seen that coming. Yes, children, comp00ters can be connected remotely to each other, and each of those comp00ters can be provided with rules (!) about how and when to process data that one or the other comp00ter (or both!) has received or transmitted. And the timing and providing of those rules can also be governed by rules! And the providing of the rules to provide the rules can also be governed by rules! And it can all be done remotely! Or not. Oh my oh my it’s enough to make an eight year old’s head explode.
So what is our s00per awesome comp00ter going to do? It’s going to look for those “attributes” that it previously “determined” that it needs. Now, if you’re looking for details about “attributes” so you can apply a “rule” that you received, where are you going to look? Well, gee whiz, why not ask the source of the “rule”? Seems reasonable, to say the least. Beyond that, it’s something that pretty much every rule-receiving human has done since the beginning of time because … reasonable. Like “no d u h” reasonable. Like “why would anyone waste time even discussing it” reasonable.
for a first portion of the plurality of attributes classified with a first connector:
for each of the first portion of the plurality of attributes, determining whether an attribute value for the attribute is present at the server;
Whoa! Nobody could have predicted that. But wait: there’s more! What if the server which provided “the rule” doesn’t have the “attribute value” that is “required” to apply the rule to the user’s request? What then? Self-destruct? The comp00ter sends a prayer to the Pope? The comp00ter shows a 3-D animated movie to “the user”? Or maybe an advertisement!
Or maybe … just maybe … look elsewhere! Can you imagine? Try to believe it, folks:
ge nerating a first connector request, wherein the first connector request comprises each of the first portion of the plurality of attributes that lacks an attribute value at the server; and requesting attribute values for each attribute included in the first connector request, wherein the requesting takes place via the first connector and is directed to the remote data source associated with the first connector;
That’s some s00per d00per techno right there. Why, you almost need a fancy fl0w chart to figure out what’s going on! A decision tree or something (hey, maybe these guys should have applied for a plant patent … because “tree”!).
And last but not least, the wrap up:
evaluating, by the server, the user request to determine whether the user is authorized to perform the action on the resource, wherein the evaluating comprises applying the rule considering the values for the plurality of attributes; and
returning an authorization decision.
Yes, we all knew that was coming just from reading the preamble. So now that we’ve bl0wn through all the scrivening g@rbage, let’s just summarize what’s going on, just like the patentee did when he/she wrote the specification. The method requires receiving a user’s request for access and receiving “a rule” for determining whether the user’s request is authorized. To apply the rule, you need to get info (“attributes”) about the request and/or the user (when isn’t that the case with authorization rules?). You get that info from the source of the rule or from some other source. That’s it.
This isn’t the “gist” of the claimed “innovation.” It is the claimed “innovation”, just rewritten to eliminate the fancy techn0 terms and redundant silliness that the patent attorney baked into the claim. And it’s abstract ineligible cr@p. Good riddance.
This cert petition is d.o.a. Thanks for the laughs, though.
As others have noted, the patentees who are petitioning here are cl ueless are pounding the strawman of “pre-emption.”
You can’t take an ineligible abstraction (e.g., apply rules to decide whether something is “authorized”) and make it eligible by larding the claim up with “use a computer” bal0ney (and that includes “use remotely connected computers” bal0ney or “use a mobile computer” baloney or “get some info for applying the rule here and some other info there” bal0ney) or any other ancient bal0ney.
Quite frankly, just as is the case with the most vociferous defenders of junk like this, you really have to wonder: do these people think everyone else was b0rn yesterday, or are they just t00 st0 0pit to figure this stuff out? Or both? If it’s not one of those, then we’re left with ridiculously greedy, entitled, and dishonest hacks. And we know that there’s sooooo few of those in the comp00ter patent biz … LOL
From their laughably jargon-bloated website: Jericho Systems provides … externalized authorization
Wowee zowee! Super impressive stuff. ROTFLMAO
Jericho Systems makes customized content decisions during every transaction; online, in-store, and over the phone.
What? No customized content decisions during a transaction by snail mail? Why not? Oh, I guess that’s included in “every transaction.”
Of course, if the term “every transaction” shows up in the prior art, you can bet your life that Jericho Systems will do backflips pretending that the art couldn’t possibly include the s00per techn0 “transactions” that they’re trying to tie up with their ridiculous junk patents.
Yay for Malcolm (once again) attempting to make an issue out of his FALSE legal propositions.
Namely: “the claimed machine or method is f@tally lacking in the recitation of the sorts of novel structural or novel physical transformations”
He doubles down on his usual “objective physical structure” optional claim format somehow NOT being optional with a token to the 9-0 defeated MoT as a law instead of a clue CR@P.
Everything else he wrote is out the window because he insists on building his tower on a foundation of sand.
If you’re suggesting that this junk claim is eligible, “anon,” I’d love to hear you make the argument. Jericho needs your deep wisdom and insight! So let’s hear it. You’re a very serious person, after all. Just step up and defend this ridiculous junk and make your c0h0rts proud.
As for this “tower”, I’m not sure what you’re referring to. I’m not interested in building a tower. I’m very interested in tearing one down, however, for great reasons that are shared by many reasonable people.
That “tower” is the “tower” of computer-implemented junk patents. That “tower” wasn’t built on anything remotely as solid as “sand.” It was built instead on the proposition that information and logic is “the essence of electronic structure”. And that “essence”, as we all know, was pulled out a judge’s behind. Some foundation!
Let’s watch it some crumble some more. That’s the one thing that’s absolutely guaranteed, of course: the tower of computer-implemented junk is going to continue to crumble. It might collapse catastrophically (which would be awesome) or it might teeter this way and that, dropping bricks by the ton-load until it’s reduced to a chicken shack. But it’s going to continue crumbling. And the patent system and everything associated with it will be better off for that.
And all this was predicted many years ago.
[shrugs]
I am not suggesting ANYTHING about the claim.
I am suggesting exactly what I stated: YOUR handle on the law is deficient.
I do not need to even begin to defend ANY claim to point that out.
am not suggesting ANYTHING about the claim.
Another winning strategy for you!
Simply ignore how your legal fantasies relate to reality and to the actual fact patterns that will routinely be presented, thousands of times over. What could possibly go wrong?
LOL
Maybe you should start with an understanding of the law before your “dive” into the rye fields and talking about ANY particular claims.
Understanding the law is NOT how you are attempting to spin it here as some type of “legal fantasy” – it is quite the opposite.
(and we both know why you have an aversion to the actual law, don’t we? Reminds me of your volunteered admissions against interests pertaining to the exceptions to the judicial doctrine of printed matter – the actual law is just too darn “inconvenient” for you and your short scripted rants)
Maybe you should start with an understanding of the
* y a w n *
LOL – that figures that you would nod off when the important stuff is at point.
Watching over those fields of rye must be tiring work for you.
Do’h! (said in the best Homer Simpson tones)
Wake me up when you start babbling about “Chamberlain” like you used to every day. That was funny.
It’d be sad if I had to go to IP Crockdog to see you do the full Vegas act.
I shouldn’t have to wake you up while you chose to doze when the important topic of the actual law is at hand.
Maybe try less dissembling and try more to be awake, aware, and on point concerning the law.
(I realize that is not on your short script, so I will not be holding my breath)
…and why are you 0bsessing over Quinn again…? Most odd.
The one thing in the claim that may have tended to define patentable subject matter (“determining a plurality of attributes required to evaluate the rule”) was stated at such a high level of abstraction that it could essentially be anything. Now, if the determination required the requestor to recite a phrase, and the claim required novel apparatus to listen to the requestor to identify him, then we might have had something.
This kind of claim also illustrates why software claims cannot be effectively examined. They are use non standard language throughout so that the same thing might already be disclosed elsewhere and described using entirely different language.
…and let’s throw in there the anti-software whine of “so hard”…
Y
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“This kind of claim also illustrates why software claims cannot be effectively examined. They are use non standard language throughout so that the same thing might already be disclosed elsewhere and described using entirely different language.”
Ned, the same could be said of any claim, such as a mechanical claim, for example.
A DEVICE FOR REGULATING A FRICTION TRANSMISSION OF VARIABLE VELOCITY RATIO, THE DEVICE COMPRISING A TUBE FORMED WITH A SLOT EXTENDING ALONG THE TUBE, A SUPPORT SLIDABLY AND CIRCUMFERENTIALLY MOUNTED ON THE EXTERIOR OF THE TUBE, A ROLLER ELEMENT CARRIED ON SAID SUPPORT AND WHOSE MOVEMENT CHANGES THE VELOCITY RATIO OF THE TRANSMISSION, A ROTATABLE SCREW DISPOSED WITHIN THE TUBE AND EXTENDING ALONG SAME, A NUT THREADED ON THE SCREW, AND MEANS CONNECTING SAID NUT AND SAID SUPPORT THROUGH SAID SLOT.
Sorry about the caps. Their Google’s not mine.
link to patents.google.com
What the heck is a friction transmission? Something the transmits friction? Whats a means for connecting a nut and a support through a slot? Whats a roller element? Is that what their called in the Granger catalog?
What about this functional doozy: A ROLLER ELEMENT CARRIED ON SAID SUPPORT AND WHOSE MOVEMENT CHANGES THE VELOCITY RATIO OF THE TRANSMISSION.
…this is just the first one I looked at after searching for “transmission”.
so…. you know….
“they’re” …. of course…. my fingers do the typing
“What the heck is a friction transmission? Something the transmits friction?”
Um nah bro, a friction transmission is simply an occurrence of when friction is transmitted.
Set everything else you’re talking about aside, it is still a transmission, and can easily have a decent search performed upon it in the “transmission” subgroups/classes. Try classifying the instant claim MM is talking about. Where does it go? In the “software authorization” sub-group? lol does that even exist?
subgroup? you donneednostinking subgroups. You’re doing computer searches.
You search for user authorization rules remote data source, or some such.
If you need subgroups, you develop them. Computers have been around since, what, a coupla days after Roswell? 60, 70 some years? Maybe its time to get your act together PTO…
You search for user authorization rules remote data source, or some such.
Yes, but this claim has attribute values classified at a connector.
And they’re used to evaluate a rule. Oops, I meant apply a rule. Except when I wrote the claim I didn’t say it that way the first time. Totall unintentional! Not trying to kick up dust or confuse anybody, especially an Examiner. Why would I do that (other than to make money and spout off about “presumed valid! presumed valid!”)? Seriously: why?
That’s why I defined all the terms in the claim and provided examples of the simplest concrete embodiments and the simplest instances of logic processing that fall within the claims’ scope. Oops! I take that back. I didn’t define any of those things. They just kinda show up in the claims. And my examples are worthless.
But it’s all good. Thanks to us, your data is totally safe. That wasn’t true before. You can trust us.
/ B0 z0 the Innovator off
“If you need subgroups, you develop them. Computers have been around since, what, a coupla days after Roswell? 60, 70 some years? Maybe its time to get your act together PTO…”
Sure thing, but they’ll still be just as woefully inadequate as the ones that we would have had in the 60’s or 70’s, because softiewaftieware isn’t tethered to the same kinds of constraints that normal subclasses are. You’re right that we could make one, and then what? It’ll have a million refs in it in a few years? lulz.
You’re right we don’t need such subclasses, because we shouldn’t even be in the business of examining such things in the first place. But, you guys are dead set on having us do so.
How about this. Don’t use East or West. Use Google.
Don’t use East or West. Use Google.
Because it’s impossible to make up new data processing jargon that avoids relevant Google hits.
You guys really are a crack up.
It is just as impossible to make up mechanical jargon that avoids relevant Google hits.
6 ineptly replies: “simply an occurrence of when friction is transmitted”
‘Nuff said.
O rly Bill Anon the science guy? What do you think that term is a reference to?
#anonfailedphysics
Ah it actually is one of those odd drives that Ned found below. Interesting old timey gadget. It is indeed a small device to regulate such an engine.
still:
#anonfailedphysics