Affinity Labs v. DirecTV (Fed. Cir. 2016)
The Federal Circuit here affirms that Affinity’s challenged claims invalid as directed to an abstract idea. when “stripped of excess claim verbiage”, Claim 1 of U.S. Patent No. 7,970,379 “is directed to a broadcast system in which a cellular telephone located outside the range of a regional broadcaster (1) requests and receives network-based content from the broadcaster via a streaming signal, (2) is configured to wirelessly download an application for performing those functions, and (3) contains a display that allows the user to select particular content.” Slip opinion.
Alice Step 1: Considering these limitations and the claim’s “character as a whole” the court identified the concept of “providing out-of-region access to regional broadcast content” as an unpatentable abstract idea. The court explained its conclusion by noting that the practice (1) has been long employed in media distribution; (2) is not tied to any particular technology; and (3) could be implemented by very low-tech technology such as via mail. The court went on to explain that (4) nothing in the claim “is directed to how to implement out-of-region broadcasting on a cellular telephone. Rather, the claim is drawn to the idea itself.” And, (5) unlike in Enfish, the claims are not directed to “an improvement in cellular telephones but simply to the use of cellular telephones as tools.” Taking all these together, the court found the claim was in fact directed to an abstract idea.
Alice Step 2: Step two of Alice indicates that a patent directed to an abstract idea is patent eligible if it claims “additional features” that constitute an “inventive concept” that go beyond “well-understood, routine, conventional activity.” Mayo. Here, the court found no such additional features. “The claim simply recites the use of generic features of cellular telephones, such as a storage medium and a graphical user interface, as well as routine functions, such as transmitting and receiving signals, to implement the underlying idea. That is not enough.” Slip Opinion at 15-16.
= = = = =
Claim 1 below – seen was used as representative for the analysis:
1. A broadcast system, comprising:
a network based resource maintaining information associated with a network available representation of a regional broadcasting channel that can be selected by a user of a wireless cellular telephone device; and
a non-transitory storage medium including an application configured for execution by the wireless cellular telephone device that when executed, enables the wireless cellular telephone device:
to present a graphical user interface comprising at least a partial listing of available media sources on a display associated with the wireless cellular telephone device, wherein the listing includes a selectable item that enables user selection of the regional broadcasting channel;
to transmit a request for the regional broadcasting channel from the wireless cellular telephone device; and
to receive a streaming media signal in the wireless cellular telephone device corresponding to the regional broadcasting channel, wherein the wireless cellular telephone device is outside of a broadcast region of the regional broadcasting channel, wherein the wireless cellular telephone device is configured to receive the application via an over the air download.
Does anyone know which case the Federal Circuit was quoting from at the bottom of page 6 of the opinion. The Court states that “The ‘abstract idea’ step of the inquiry calls upon us to look at the ‘focus of the claimed advance over the prior art’ . . .” Any idea where this is coming from? No citation was provided. I don’t remember the court every saying that we look at prior art under step 1. The next citation in the opinion was to Elec. Power but that language was not found in that case.
Thanks,
Mike, the Supreme Court has historically looked to the substance of the claimed invention so as to focus in the patentable advance. This is why the courts have excluded insignificant activity appended to otherwise ineligible subject matter. The first case that said this that I am aware of is Flook. But it is a common theme.
Mayo gave us the analysis that one needed to apply subject matter that was otherwise ineligible, in that case, a law of nature, to some inventive application. Alice took this analysis to apply it to the “abstract” prong of the tripartite exclusions: natural phenomena, laws of nature, and abstract ideas.
“substance of the claimed invention” aka “Gist of the invention” aka dozens of other names – EXPLICITLY rejected by Congress in the Act of 1952, wherein they opted instead to create and implement obviousness in 35 USC 103.
anon, there is a difference between asking whether what is new is obvious and whether what is new is patentable subject matter.
Absolutely Ned. – and Congress acted in 1952 in response to an out of control Supreme Court to constrain the Court’s failure to set the meaning of “invention” (and alll of those terms pertaining to thus, like “Gist of the Invention”) as I have detailed for you time and again.
Maybe YOU should listen….
Ya I got that part. What I don’t understand is why it’s being applied in step 1. My understanding is that any novetly, if relevant at all, comes in under step two. I’ve never seen a court say that step 1 requires us to compare the invention to “prior art.” Do examiner now need to cite prior art to support a rejection under step 1 (and 2) of alice?
Mike,
This is being “scriven” on the fly – how is anyone supposed to know?
(Sort of like leaving key terms like “Abstract” and “significantly more” purposefullly undefined…)
Mike, good question indeed.
I think still think the courts are confused on this issue.
For 101 purposes, first step should be whether the claimed subject matter includes patent ineligible subject matter. If not the claims should certainly pass 101. It simply cannot be that all claims are directed to ineligible abstract ideas.
If the claim does include such subject matter, such as a law of nature, math, business method, etc., step 2 becomes important. But, except for Enfish, the courts seem to simply say that X subject matter is patent ineligible subject matter without really explaining why, except by analogy to prior cases. They have now given us, in these Affinity cases, the following:
Step 1 ineligibility: The claims are not directed to
1) solving a technological problem; or
2) to an improvement in computer or network functionality.
Actually, the second seems a species of the first, not so?
During step 2 we ask, is there an inventive application. If so, the claim is patentable. But if there is an inventive application, couldn’t or shouldn’t the claims pass step 1 as well?
Ned, Are protons, neutrons and electrons “eligible subject matter”…?
Do you see the problem right off with your attempt?
…and once again, you misstate the law as it is today with your curse-ade against business method patents….
Time for a little inte11ectual honesty there Ned.
My s00per d00per claim recites more more sensors that collect more data that is processed faster by more s00per shiny comp00ters!
Can I haz patent now?
I hope so because otherwise nobody will invent anything anymore.
I Invented That, question for you, since you’ve been very big on “Well 112 applies, use 112.” Let’s take the prominent WD case of Lizardtech.
Lizardtech dealt with software. One of skill finds coding to be a merely clerical act – i.e. once you know what you want to code, at least for information processing like this is, the coding is trivial. Thus enablement is generally met.
Lizardtech had Claim 1, which was limited by “maintaining updated sums” and “periodically compressing the sums.” Claim 1 was not infringed because the defendant did not do those things. Claim 21 lacked those limitations, and thus the defendant was infringing. Claim 21 was found to lack written description support, because the specification provided only one manner of achieving seamless DWT – by maintaining updated sums.
The trouble with allowing claim 21 to cover all ways of performing DWT-based compression processes that lead to a seamless DWT is that there is no support for such a broad claim in the specification. The specification provides only a single way of creating a seamless DWT, which is by maintaining updated sums of DWT coefficients. There is no evidence that the specification contemplates a more generic way of creating a seamless array of DWT coefficients.
In other words, the court recognizes that Claim 21 is overbroad of the disclosure because the disclosure is directed to a specific means and Claim 21 is directed to a genus.
The court then goes on to say this: “A claim will not be invalidated on section 112 grounds simply because the embodiments of the specification do not contain examples explicitly covering the full scope of the claim language. See Union Oil Co. v. Atl. Richfield Co., 208 F.3d 989, 997 (Fed.Cir.2000). That is because the patent specification is written for a person of skill in the art, and such a person comes to the patent with the knowledge of what has come before. In re GPAC Inc., 57 F.3d 1573, 1579 (Fed.Cir.1995). Placed in that context, it is unnecessary to spell out every detail of the invention in the specification; only enough must be included to convince a person of skill in the art that the inventor possessed the invention and to enable such a person to make and use the invention without undue experimentation.
So the court says that merely using inductive reasoning is insufficient. A person can take an example, and then abstract out as much as they want until the defendant can present evidence and argument to convince a fact finder that 112a isn’t met. A species supports a genus until there is evidence that it does not according to the federal circuit.
Now here’s a portion of O’Reilly v. Morse, providing logic that sounds in 112a:
For aught that we now know some future inventor, in the onward march of science, may discover a mode of writing or printing at a distance by means of the electric or galvanic current, without using any part of the process or combination set forth in the plaintiff’s specification. His invention may be less complicated — less liable to get out of order — less expensive in construction, and in its operation. But yet if it is covered by this patent the inventor could not use it, nor the public have the benefit of it without the permission of this patentee.
Nor is this all, while he shuts the door against inventions of other persons, the patentee would be able to avail himself of new discoveries in the properties and powers of electro-magnetism which scientific men might bring to light. For he says he does not confine his claim to the machinery or parts of machinery, which he specifies; but claims for himself a monopoly in its use, however developed, for the purpose of printing at a distance. New discoveries in physical science may enable him to combine it with new agents and new elements, and by that means attain the object in a manner superior to the present process and altogether different from it. And if he can secure the exclusive use by his present patent he may vary it with every new discovery and development of the science, and need place no description of the new manner, process, or machinery, upon the records of the patent office. And when his patent expires, the public must apply to him to learn what it is. In fine he claims an exclusive right to use a manner and process which he has not described and indeed had not invented, and therefore could not describe when he obtained his patent. The court is of opinion that the claim is too broad, and not warranted by law.
In the Supreme’s view, the problem occurs *when the inductive reasoning is made.* This is because if the inductive act is allowed to occur, inventors who develop a better mode which falls within the patent may be dissuaded, and if he personally discovers a better mode falling within the scope he would lack incentive to disclose.
The law under 112a is essentially that a defendant must counter-invent: He must find an embodiment that falls within the genus scope that he can argue was outside of the possession of the patentee at the time of filing. The defendant has a burden to show that the species/genus difference is relevant to prevent the patentee from being, essentially, unjustly enriched.
The logic of the Supremes under 101, though similar to 112 as it is ultimately based upon what the patentee proved to have invented, is different: The dangerous act is the unsupported inductive reasoning. The question is not whether it ultimately ends up being proven as overbroad (i.e. someone can prove under 112a that they have an entirely different means which achieves the function), the question is whether the claim by the patentee *raises that threat.* One of the chief reasons is that the patentee himself may be the best inventor, and if he is given an overbroad scope initially he has a diminished incentive to provide further disclosures to the public.
Isn’t that a qualitative difference in the standards? For a 112a rejection you have to counter invent (now it may be that you have, in fact, already counter invented because you’re selling an infringing embodiment that uses a different means of achieving the function; so in many cases a 112a will be tailor-made) to meet your burden, but under 101 the mere fact that the abstraction was used was sufficient to tank the claim. The *threat* of an overbroad claim is sufficient under Supreme Court logic for 101. The *actual unjust enrichment* is the danger under the Federal Circuit’s 112a. Notably absent from the FC’s logic is that people may be dissuaded from research into an overbroad scope, or that the inventor himself would be dissuaded from disclosing a different manner of achieving the function.
So let me ask this – Is your contention that 112a is the only standard by which a claim should be judged? Or is your contention that 112a should be the only standard, but it should be modified to accept the Supreme Court’s logic that the threat is sufficient? The Supremes have trouble with the inductive act itself, is that a valid concern or not? If not, why does the FC’s view prevail over the SCs?
Random, inventors of business methods do not want to add specific technology to the claim. Gets in the way.
??? Ned – you are on some new Windmill hunt….
Speaking of windmills, anon, you put your faith in Congress when Congress gave us the AIA. We all know that Congress does the bidding of the highest bidder. It is a corrupt institution from top to bottom. The only institution in America that is not corrupt is the court system. And I would not put the Federal Circuit squarely into the court system because it is not a court of general jurisdiction.
Unfortunately you are correct that the current Congress gave us the AIA and is suspect as to doing the bidding of the highest bidder.
Citizens United is certainly part of that blame, where in mere juristic persons can have their “voices” amplified by the amount of contributions.
BUT THAT DOES NOT CHANGE THE PROPER RELATIONS of the different branches of government, and the Constitutional allocation of power to write the statutory law that is patent law.
That certainly does NOT open the door for any type of “Ends justify the Means” and allowing the separation of powers to be violated with the Court writing statutory law (EITHER implicitly or explicitly).
Your view that the court system has escaped corruption is simply far too simple and polly anna.
Your faith is as equally – if not more so – misplaced BECAUSE you are willing to brook violation of the checks and balances and you are only too willing to turn a blind eye to a TOO powerful court based SOLELY on the alignment of the Ends to your Windmill chases,
Read again the warning from Sir Thomas More as you mow down the proper checks and balances of the law and then stand before the Devil of the Supreme Court.
Too bad patent owner’s can’t use the “stripped of excess verbiage” test for determining infringement.
Nice.
Pilgrim, one even wonders why the inventor of any business method would clutter the claim with any particular technology. Only makes proving infringement that much harder.
And the hunt continues…
nothing in the claim “is directed to how to implement out-of-region broadcasting on a cellular telephone
Next time just throw in a limitation about applying some rules (“if broadcast object attribute value meets predetermined criteria”) at a particular time (“upon selection, when the cellular device is out of region”). Then you’re golden. See McRo.
Yes, it’s a farce.
MM, one might add a battery limitation. That adds both weight and power to the claim.
I got a charge out of that…
35 U.S.C. 101 Inventions patentable.
“Whoever invents or discovers ANY[!!!] new and useful process,
machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor,
subject to the conditions and requirements of this title.” – i.e., move along to Sects. 102, 103, 112.
You should try typing it in all bold with caps. It makes a huge difference! And then pretend that you don’t understand basic logic and how it works.
Just ask “anon.” He did that for years here. He totally changed the minds of, like, one out of every seventy Federal law clerks.
MM – I may even agree with you on many many patents that are “junk” (to use the parlance of our times) – but you are wrong here. Thankfully there is a fair amount of turnover destined for the high court.
Hey Dennis – Could you add a “Like” button…. or maybe an “Ahmen” button.
Thankfully there is a fair amount of turnover destined for the high court.
Is there some reason to believe that not enough “do it on a computer” patents are being granted? Or that there is some technology (e.g., robot cars) that would promoted “better” by granting more junk “use logic to process this information, with the assistance of an ancient tool for applying logic to information” patents?
You think newer, younger judges are going to be more “hip” to granting more “do it on a computer” junk? Or more inclined to chuck out unanimous Supreme Court decisions because of some d.o.a. arguments about “statute says so!” that ignore centuries of common sense and basic reasoning?
Well, I suppose you can believe just about anything then. Maybe the patent-worshipping aliens will land and take over the brains of all the Justices tomorrow. That would get your job done marvelously fast.
The answer to your first question, MM, is no – I don’t want more junk. The answer to the second question is – I think the court should follow the statute rather than make new law when the statute can be used in an intellectually honest way as-is to deny patentability for junk patents.
I think the court should follow the statute rather than make new law
This is recycled nonsense that gets you nowhere.
The statute doesn’t say that information or logic or “functionality” is eligible for patenting. So how did we get to the point where people are protecting information and logic and “functionality” with patents? The answer is that the CAFC made that possible by “creating new law.”
So where are all your objections to that?
It should go without saying that, in a perfect world, every statute would be written to expressly address every possible fact scenario that could ever possibly exist. But we don’t live in that perfect world and we never will. We live in a system where we have a Supreme Court comprising a bit less than a dozen men and women who interpret the law and who are tasked with keeping the lower Federal courts in line. You should feel free to object to the level of imperfection all you like (I do!) as well as the specifics but simply stamping your feet and screaming “statute says process!” is a non-starter.
Tell us how you’d re-write it to get what you want, and show everyone that you’ve considered the practical realities, not to mention recent history.
Shorter Malcolm: The Ends justify the Means.
Also, iit, in the interest of finding some “common ground”, I don’t have a problem per se with using some form of “patent”-like system to protect the work of people who program computers. But I strongly object to the status quo where we have a patent system bent out of recognition to serve the interests of a class of “innovators” trying to protect the application of rules to information. It’s a farce.
So go ahead and propose something practical and workable. I’m all years. You might want to start with a comprehensible explanation of how an algorithm that is eligible for your protection in your new-fangled system needs to be presented, and then explain how it’s examined in view of prior art algorithms. The floor is yours! I’m sure you’ve thought about this a lot.
I don’t need to think about this a lot because the person that re-drafted the patent statute back in the 50’s was a bit more experienced and intelligent that the likes of us here. Thankfully this person created Sects. 112, 102, 103 that inform whether a patent is valid, and can be used to invalidate the “junk” you despise in an objective and intellectually honest way.
I don’t need to think about this a lot because the person that re-drafted the patent statute back in the 50’s was a bit more experienced and intelligent that the likes of us here.
LOLOLOLOLOLOLOL
Bow down, everyone! Our intellectual masters have spoken.
Shorter Malcolm: “B-b-but my feelings are hurt with such “easy” patents”
“the application of rules to information”
Sort of like the “rules” of physics to the “information” derived from the placement of lines on measuring cup, or the applied mathematical “rules” to the “information” of the placement of numbers on a hat band…
Oopsie for Malcolm (and those are not even software…)
Sort of like the “rules” of physics to the “information” derived from the placement of lines on measuring cup, or the applied mathematical “rules” to the “information” of the placement of numbers on a hat band…
Please please please let’s hear more about these awes0me and s00per thoughtful opinions. When did the Supreme Court write them? Remind everyb0dy.
I do not think that you need to hear more, given as you have already volunteered admissions as to knowing and understanding the controlling law.
It is funny though that you seem to want to implicate the Supreme Court.
Now, why could that be?
“Whoever invents or discovers ANY[!!!] new and useful process,
machine, manufacture, or composition of matter,
Except not being categorically outside one of the classes does not mean one falls within the class. “Process” is a term of art. Simply because something is a series of steps does not make it a “process” under 101. See Bilski v. Kappos, 130 S. Ct. 3218, 3229.
Same thing with the other categories – a “composition of matter” is not “everything physical” even though that would be the lay definition of a composition of matter. In fact, if you used the lay definition of “composition of matter” you wouldn’t need the words “machine” or “manufacture” – as you can’t have a machine that isn’t composed of matter.
By the way, if you take all the words at their face, lay value, why is there a separate statute for plant patents (35 USC 161) when a plant is clearly a “composition of matter”?
…because of who the composer is…
Plant patents are different from utility patents (which are also available to protect engineered plants, btw). There’s different disclosure requirements and unique limitations on what you can protect with a plant patent.
There’s a special statute just for these particular patent rights because (shocking!!) somebody recognized that special requirements and limitations should apply.
Thus far nobody’s figured out how to tr0ll them and I dont’ recall any patent attorneys’s wives sitting around at firm holiday parties scheming about how to get rich by cashing in on the chia patent craze.
IIT, now you quote the statute — but how does delivering content to a user provide a new or improved machine?
…(psst, are you looking at inherency…?)
The knee jerk reaction to this claim being invalid on this blog probably finds its origins in Section 103 – obviousness, not subject matter eligibility under Section 101. Does the claimed invention provide any useful benefit? – Probably. Is the claimed subject matter made by man? – Yes. Then the claim is patent eligible under Section 101. Move on to 112, 102, 103 analysis.
Does the claimed invention provide any useful benefit? – Probably.
That’s not the test for eligibility. That’s the test for utility.
s the claimed subject matter made by man? – Yes. Then the claim is patent eligible under Section 101.
ROTFLMAO! The unfrozen cavemen lawyer walks among us.
Are you saying that utility is not part of the 101 analysis?
‘Cause that seems contrary to your position of yesteryear…
….and another pendulum begins to swing back…
Are you saying that utility is not part of the 101 analysis? ‘Cause that seems contrary to your position of yesteryear…
Let’s see here. Something that I didn’t actually say “seems” (to Les) to be contrary to some “position of yesteryear” that I allegedly held.
I guess I’m not terrible concerned.
You didn’t say “That’s not the test for eligibility. That’s the test for utility”?
And by saying that you weren’t that: Does the claimed invention provide any useful benefit? – Probably. Is the claimed subject matter made by man? – Yes. Then the claim is patent eligible under Section 101. Move on to 112, 102, 103 analysis” should not have included a consideration of usefulness leg?
Then what ever did you mean?
…unfrozen caveman …?
Coming from the guy that wants to treat software as some form of “magic” in regards to the inherency doctrine of [Old Box]…?
Oh wait, this is Malcolm, and his usual CRP number one meme** of AccuseOthersOfThatWhichMalcolmDoes
**with its siblings of ThatWhichMalcolmIs, of course.
Does the claimed invention provide any useful benefit?
For the heck of it, I’ll hold your hand and walk your through the problem with this kindergarten grade “analysis.”
The problem is that pretty much any claim that recites an old useful communication manufacture (e.g., a book, or a cell phone) provides a useful benefit, regardless of what other elements you add to the claim. Your “test”, then, is worthless from a practical point of view because we know (for example) that you can’t patent useful “new” book based on the “new” information that it communicates to readers. Perhaps you want to introduce some “illegal” “judge made” “doctrine” to rescue your test from this infirmity? Be sure to tell everyone exactly how that “doctrine” works. I’m sure you’ve thought about this a lot already.
At least case law can change moving forward. Your Alice test is the wrong path, and it will eventually be changed.
Your Alice test is the wrong path
It’s certainly on the right path. There’s really no serious question about that (I’ve heard lots of whining, for sure, but nobody has raised a serious challenge to the fundamental problem addressed by Alice which is lawyer’s scrivening ineligible subject matter into “do it on a computer” silliness).
Feel free to quibble about the details and uncertainty on the margins. But the basic logic of Alice isn’t going anywhere, ever.
“But the basic logic of Alice isn’t going anywhere, ever.” – I’ll file this one away.
“But the basic logic of Alice isn’t going anywhere, ever.” – I’ll file this one away.
Go right ahead.
Try to also file away the fact that we already conducted the experiment with “patent everything”. It was an unprecedented and unmitigated disaster that the system will be struggling to deal with for years.
On the other hand, some lawyers and some already wealthy people made tons of money! Everybody knows that the American public loves that outcome more than anything else.
MM – the statute says: “any useful improvement thereof” – so your comment below walks right into the fire:
“The problem is that pretty much any claim that recites an old useful communication manufacture (e.g., a book, or a cell phone) provides a useful benefit, regardless of what other elements you add to the claim.”
the fire:
There is no “fire.” There’s a statute, and that statute has been interpreted by the Supreme Court using basic principles of statutory interpretation, including the recognition of exceptions that existed prior to the enactment of the statute that were never disavowed by Congress.
Did Congress say you can scriven your way around a basic prohibition (e.g., information is ineligible for patenting) by drafting your claim in the form of an “improved process”? No, they didn’t say that. They wrote a statute that has been intepreted and it doesn’t mean what you wish it meant.
So there is no “fire.” There is just a legal problem that you have to deal with using arguments that aren’t d.o.a. Did you really learn nothing from Prometheus v. Mayo? C’mon, man.
Your view of statutory construction is simply wrong.
Construe even before ANY statute is even written…?
Construe even before ANY statute is even written…?
You’re trying to make some kind of point here, I think. Try harder.
I am not the one that needs to try harder.
The point I made is in simple and direct English (you know, what you are always going on about).
Try some inte11ectual honesty with the that “statutory construction without a statute” thingy.
The point I made is in simple and direct English
You asked a question and I don’t know what point you’re trying to make. It certainly wasn’t a direct point. And I doubt it’s simple, unless it’s simply wrong.
As I wrote already: try again. It’s hilarious that you continue to believe you’re the most articulate person in the room when everyone here knows you s*ck at writing.
The point IS simple – you cannot have “statutory construction” without a statute to begin with.
You seriously needed to be told that…?
(there is no “most” about my posting – but criminy Malcolm, you are the opposite of that “most”)
IIT: 101 requires more that being made by man in addition to utility.
Where in the world do you get these ideas?
Apparently from the Court, as those two ARE the two requirements in 101, and (apparently) the Court is still looking for “something more.”
Anon: From the court…
Truly anon, you constantly harp about the statute this and the statute that, the statute this and the statute that, the statute this and the statute that…. The statute requires a lot more than just utility and being made by man. For example, the statute requires that the things made by man be and are limited to “machines, manufactures, compositions.” Surely you do not think that music is one of these even though music is made by man?
Ned – The statute in 101 ONLY requires two things (within 101).
That is utility and being within one of the statutory categories.
THAT IS ALL.
I have shown you the words of Congress that take your “philosophy of new in 101” and dispels that attempt of yours.
The Court DOES have a role of interpretation – but they have gone far beyond that role. They have done so because of their addition to power and the power PREVIOUSLY granted to them by Congress to set the meaning of the word “invention.”
But that power was stripped away in the Act of 1952 and the creation NOT only of 101 – but of the separation and creation of 103 which removes that aspect of “setting the definition of invention” and INSTEAD created the notion of obviousness.
ALL that we see now with the Court and its pretending that the Act of 1952 “merely codified” (when Congress itself was explicit about the waywardness of the “recent court”) is the addiction to power and the corruption of that addiction.
You ploy here with an incomplete statutory rendition – leaving out one of the categories (because of your desire to have THAT category be merely s sub-category – and this goes along with your refusal to fully recognize what Congress did in 35 USC 100).
You further ploy the canard of non-Useful Arts – as if my long and well understood position allows such a canard (it does not).
Stop the canards Ned. Stop the dissembling. Embrace the fact that my position FULLY and accurately reflects what Congress itself did in 1952 (and importantly WHY Congress reacted against a Supreme Court that had become TOO anti-patent).
All you have to do is actually give credit to my arguments, embrace what I have actually stated and not run away from the counterpoints that I have presented (your choices of exactly when to stop our discussions).
You do these things – and you do them with inte11ectual honesty – and you will see that I am – and have been – absolutely correct in every single thing that we have discussed.
That choice remains yours.
anon, simply put, being “made by man” (together with utility) is insufficient.