First Amendment Finally Reaches Patent Law

The big news from Intellectual Ventures v. Symantec (Fed. Cir. 2016) is not that the court found IV’s content identification system patents invalid as claiming ineligible subject matter.  (Although that did happen). Rather, the big event is Judge Mayer’s concurring opinion that makes “make two points: (1) patents constricting the essential channels of online communication run afoul of the First Amendment; and (2) claims directed to software implemented on a generic computer are categorically not eligible for patent.”

Read Judge Mayer’s opinion in full:

MAYER, Circuit Judge, concurring.

I agree that all claims on appeal fall outside of 35 U.S.C. § 101. I write separately, however, to make two points: (1) patents constricting the essential channels of online communication run afoul of the First Amendment; and (2) claims directed to software implemented on a generic computer are categorically not eligible for patent.

I. “[T]he Constitution protects the right to receive information and ideas. … This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citations omitted). Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse. See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000) (“The distinction between laws burdening and laws banning speech is but a matter of degree.”); see also In re Tam, 808 F.3d 1321, 1340 (Fed. Cir. 2015) (en banc) (explaining that the government may impermissibly burden speech “even when it does so indirectly”).

Although the claims at issue here disclose no new technology, they have the potential to disrupt, or even derail, large swaths of online communication. U.S. Patent No. 6,460,050 (the “’050 patent”) purports to cover methods of “identifying characteristics of data files,” ‘050 patent, col. 8 l. 13, whereas U.S. Patent No. 6,073,142 (the “’142 patent”) broadly claims systems and methods which allow an organization to control internal email distribution, ‘142 patent, col. 1 ll. 15–34. U.S. Patent No. 5,987,610 (the “’610 patent”) describes, in sweeping terms, screening a communication for viruses or other harmful content at an intermediary location before delivering it to an addressee. See ‘610 patent, col. 14 ll. 34–47. The asserted claims speak in vague, functional language, giving them the elasticity to reach a significant slice of all email traffic. See Gottschalk v. Benson, 409 U.S. 63, 69 (1972) (“Benson”) (explaining that claims are patent eligible only if they contain limitations “sufficiently definite to confine the patent monopoly within rather definite bounds”). Indeed, the claims of the ‘610 patent could reasonably be read to cover most methods of screening for harmful content while data is being transmitted over a network. See ‘610 patent, col. 1 ll. 59–61 (describing “screen[ing] computer data for viruses within a telephone network before communicating the computer data to an end user”).
Suppression of free speech is no less pernicious because it occurs in the digital, rather than the physical, realm. “[W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790 (2011) (citations and internal quotation marks omitted). Essential First Amendment freedoms are abridged when the Patent and Trademark Office (“PTO”) is permitted to balkanize the Internet, granting patent owners the right to exact heavy taxes on widely-used conduits for online expression.

Like all congressional powers, the power to issue patents and copyrights is circumscribed by the First Amendment. See Golan v. Holder, 132 S. Ct. 873, 889–93 (2012); Eldred v. Ashcroft, 537 U.S. 186, 219–21 (2003). In the copyright context, the law has developed “built-in First Amendment accommodations.” Eldred, 537 U.S. at 219; see also Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 201 (1985) (noting that the Lanham Act contains safeguards to prevent trademark protection from “tak[ing] from the public domain language that is merely descriptive”). Specifically, copyright law “distinguishes between ideas and expression and makes only the latter eligible for copyright protection.” Eldred, 537 U.S. at 219; see also Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985) (explaining that “copyright’s idea/expression dichotomy” supplies “a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (citations and internal quotation marks omitted)). It also applies a “fair use” defense, permitting members of “the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances.” Eldred, 537 U.S. at 219; see 17 U.S.C. § 107 (“[T]he fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”).

Just as the idea/expression dichotomy and the fair use defense serve to keep copyright protection from abridging free speech rights, restrictions on subject matter eligibility can be used to keep patent protection within constitutional bounds. Section 101 creates a “patent-free zone” and places within it the indispensable instruments of social, economic, and scientific endeavor. See Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014) (emphasizing that the “building blocks of human ingenuity” are patent ineligible); Benson, 409 U.S. at 67 (stating that “mental processes … and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work”). Online communication has become a “basic tool[ ],” Benson, 409 U.S. at 67, of modern life, driving innovation and supplying a widely-used platform for political dialogue. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir. 2014) (noting that the Internet “is a ubiquitous information-transmitting medium”); see also U.S. Telecom Ass’n v. Fed. Commc’n Comm’n, 825 F.3d 674, 698 (D.C. Cir. 2016) (explaining that online communication “has transformed nearly every aspect of our lives, from profound actions like choosing a leader, building a career, and falling in love to more quotidian ones like hailing a cab and watching a movie”). Section 101, if properly applied, can preserve the Internet’s open architecture and weed out those patents that chill political expression and impermissibly obstruct the marketplace of ideas.

As both the Supreme Court and this court have recognized, section 101 imposes “a threshold test,” Bilski v. Kappos, 561 U.S. 593, 602 (2010), one that must be satisfied before a court can proceed to consider subordinate validity issues such as non-obviousness under 35 U.S.C. § 103 or adequate written description under 35 U.S.C. § 112. See Parker v. Flook, 437 U.S. 584, 593 (1978) (“Flook”) (“The obligation to determine what type of discovery is sought to be patented” so as to determine whether it falls within the ambit of section 101 “must precede the determination of whether that discovery is, in fact, new or obvious.”); In re Comiskey, 554 F.3d 967, 973 (Fed. Cir. 2009) (“Only if the requirements of § 101 are satisfied is the inventor allowed to pass through to the other requirements for patentability, such as novelty under § 102 and … non-obviousness under § 103.” (citations and internal quotation marks omitted)); State St. Bank & Trust Co. v. Signature Fin. Grp., Inc., 149 F.3d 1368, 1372 n.2 (Fed. Cir. 1998) (explaining that section 101 is “[t]he first door which must be opened on the difficult path to patentability” (citations and internal quotation marks omitted)). Indeed, if claimed subject matter is not even eligible for patent protection, any pronouncement on whether it is novel or adequately supported by the written description constitutes an impermissible advisory opinion. See, e.g., Golden v. Zwickler, 394 U.S. 103, 108 (1969) (emphasizing that Article III courts “do not render advisory opinions” (citations and internal quotation marks omitted)).

The public has a “paramount interest in seeing that patent monopolies … are kept within their legitimate scope.” Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144 (2016) (citations and internal quotation marks omitted); see also Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843, 851 (2014). Nowhere is that interest more compelling than in the context of claims that threaten fundamental First Amendment freedoms. See Palko v. Connecticut, 302 U.S. 319, 326–27 (1937) (“[F]reedom of thought and speech … is the matrix, the indispensable condition, of nearly every other form of freedom.”). “As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.” ACLU v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997). A robust application of section 101 at the outset of litigation will ensure that the essential channels of online communication remain “free to all men and reserved exclusively to none,” Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948).

II. Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents. The claims at issue in Alice were directed to a computer-implemented system for mitigating settlement risk. 134 S. Ct. at 2352–53. Although the petitioners argued that their claims were patent eligible because they were tied to a computer and a computer is a tangible object, the Supreme Court unanimously and emphatically rejected this argument. Id. at 2358–60. The Court explained that the “mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.” Id. at 2358. Accordingly, “[t]he fact that a computer necessarily exist[s] in the physical, rather than purely conceptual, realm is beside the point” in the section 101 calculus. Id. (citations and internal quotation marks omitted).

Software is a form of language—in essence, a set of instructions. See Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 447 (2007) (explaining that “software” is “the set of instructions, known as code, that directs a computer to perform specified functions or operations” (citations and internal quotation marks omitted)); see also 17 U.S.C. § 101 (defining a “ ‘computer program,’ ” for purposes of the Copyright Act, as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result”). It is inherently abstract because it is merely “an idea without physical embodiment,” Microsoft, 550 U.S. at 449 (emphasis added). Given that an “idea” is not patentable, see, e.g., Benson, 409 U.S. at 67, and a generic computer is “beside the point” in the eligibility analysis, Alice, 134 S. Ct. at 2358, all software implemented on a standard computer should be deemed categorically outside the bounds of section 101.

The central problem with affording patent protection to generically-implemented software is that standard computers have long been ceded to the public domain. See Flook, 437 U.S. at 593 n.15 (“[I]n granting patent rights, the public must not be deprived of any rights that it theretofore freely enjoyed” (citations and internal quotation marks omitted)). Because generic computers are ubiquitous and indispensable, in effect the “basic tool [ ],” Benson, 409 U.S. at 67, of modern life, they are not subject to the patent monopoly. In the section 101 calculus, adding software (which is as abstract as language) to a conventional computer (which rightfully resides in the public domain) results in a patent eligibility score of zero. See Alice, 134 S. Ct. at 2358 (“Stating an abstract idea while adding the words ‘apply it with a computer’ simply combines those two steps, with the same deficient result.”).

Software lies in the antechamber of patentable invention. Because generically-implemented software is an “idea” insufficiently linked to any defining physical structure other than a standard computer, it is a precursor to technology rather than technology itself. See Mackay Radio & Tel. Co. v. Radio Corp., 306 U.S. 86, 94 (1939) (“While a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.”). It is well past time to return software to its historical dwelling place in the domain of copyright. See Benson, 409 U.S. at 72 (citing a report from a presidential commission explaining that copyright is available to protect software and that software development had “undergone substantial and satisfactory growth” even without patent protection (citations and internal quotation marks omitted)); Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1380 (Fed. Cir. 2014) (noting that “several commentators” have “argue[d] that the complex and expensive patent system is a terrible fit for the fast-moving software industry” and that copyright provides “[a] perfectly adequate means of protecting and rewarding software developers for their ingenuity” (citations and internal quotation marks omitted)); Peter S. Menell, An Analysis of the Scope of Copyright Protection for Application Programs, 41 Stan. L. Rev. 1045, 1076 (1989) (explaining that patents were historically “not seen as a viable option for the protection of most application program code” and that many software programs “simply do not manifest sufficient novelty or nonobviousness to merit patent protection”).

Software development has flourished despite—not because of—the availability of expansive patent protection. See Brief of Amicus Curiae Elec. Frontier Found. in Support of Respondents, Alice, 134 S. Ct. 2347 (No. 13-298), 2014 WL 828047, at *6–7 (“EFF Brief”) (“The software market began its rapid increase in the early 1980s … more than a decade before the Federal Circuit concocted widespread software patents in 1994…. Obviously, no patents were needed for software to become a $60 billion/year industry by 1994.”); Mark A. Lemley, Software Patents and the Return of Functional Claiming, 2013 Wis. L. Rev. 905, 935 (2013) (“Software patents … have created a large number of problems for the industry, particularly for the most innovative and productive companies. … [T]he existence of a vibrant open source community suggests that innovation can flourish in software absent patent protection.” (footnote omitted)); Wendy Seltzer, Software Patents and/or Software Development, 78 Brook. L. Rev. 929, 930 (2013) (“Seltzer”) (“Present knowledge and experience now offer sufficient evidence that patents disserve software innovation.”); Arti K. Rai, John R. Allison, & Bhaven N. Sampat, University Software Ownership and Litigation: A First Examination, 87 N.C. L. Rev. 1519, 1555–56 (2009) (“While most small biotechnology firms that receive venture financing have patents, the available empirical evidence indicates that most software start-ups that receive venture financing, particularly in the first round, do not have patents.”).

From an eligibility perspective, software claims suffer from at least four insurmountable problems. First, their scope is generally vastly disproportionate to their technological disclosure. In assessing patent eligibility, “the underlying functional concern … is a relative one: how much future innovation is foreclosed relative to the contribution of the inventor.” Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1303 (2012); see also Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U.S. 502, 513 (1917) (“[T]he inventor [is entitled to] the exclusive use of just what his inventive genius has discovered. It is all that the statute provides shall be given to him and it is all that he should receive, for it is the fair as well as the statutory measure of his reward for his contribution to the public stock of knowledge.”). Software patents typically do not include any actual code developed by the patentee, but instead describe, in intentionally vague and broad language, a particular goal or objective. See Dan L. Burk & Mark A. Lemley, Is Patent Law Technology-Specific?, 17 Berkeley Tech. L. J. 1155, 1164–65 (2002) (“Unfortunately, the Federal Circuit’s peculiar direction in the software enablement cases has effectively nullified the disclosure requirement for software patents. And since source code is normally kept secret, software patentees generally disclose little or no detail about their programs to the public.” (footnote omitted)). Here, for example, the ‘610 patent discusses the objective of “screen[ing] computer data for viruses … before communicating the computer data to an end user,” ‘610 patent, col. 1 ll. 59–61, but fails to disclose any specific, inventive guidance for achieving that goal. In effect, the ‘610 patent, like most software patents, describes a desirable destination but neglects to provide any intelligible roadmap for getting there.

A second, and related, problem with software patents is that they provide incentives at the wrong time. Because they are typically obtained at the “idea” stage, before any real inventive work has been done, such patents are incapable of effectively incentivizing meaningful advances in science and technology. “A player focused on patenting can obtain numerous patents without developing any of the technologies to useful levels of deployment or disclosure, leaving a minefield of abstract patent claims for others who actually deploy software.” Seltzer, 78 Brook. L. Rev. at 931. Here, for example, it took no significant inventive effort to recognize that communications should be screened for harmful content before delivery. The hard work came later, when software developers created screening systems capable of preventing our email boxes from being overrun with spam or disabled by viruses. Granting patents on software “ideas”—before they have been actually reduced to practice—has created a perverse incentive scheme. Under our current regime, those who scamper to the PTO early, often equipped with little more than vague notions about using computers to automate well-known business and social practices, can reap hefty financial dividends. By contrast, those who actually create and deploy useful computer-centric products are “rewarded” with mammoth potential infringement liability. See id. at 972 (“In software … the long road from idea to implementation often snags on patents early in the course. Engineers can describe what they want software to do—in terms that have been sufficient for the PTO—well before they have made it work. Pressures to patent early produce a thicket of pre-implementation claims.”); EFF Brief, 2014 WL 828047, at *23 (describing a study which “found that between 2007 and 2011, 46 percent of patent lawsuits involved software patents, accounting for 89 percent of the increase in the number of patent defendants during this timeframe”).

Yet another intractable problem with software patents is their sheer number. See Brief Of Amici Curiae Checkpoint Software, Inc. et al. in Support of Respondents, Alice, 134 S. Ct. 2347 (No. 13-298), 2014 WL 828039, at *8 (“[B]ecause computer products—as opposed to patents—inevitably integrate complex, multicomponent technology, any given product is potentially subject to a large number of patents. … Some industry experts have estimated that 250,000 patents go into a modern smartphone.” (citations omitted)). Given the vast number of software patents—most of which are replete with broad, functional claims—it is virtually impossible to innovate in any technological field without being ensnared by the patent thicket. See id. (describing the “overwhelming set of overlapping patent rights that impede innovation”). Software patents impose a deadweight loss on the nation’s economy, erecting often insurmountable barriers to innovation and forcing companies to expend exorbitant sums defending against meritless infringement suits. See Shawn P. Miller, “Fuzzy” Software Patent Boundaries and High Claim Construction Reversal Rates, 17 Stan. Tech. L. Rev. 809, 810 (2014) (“Patent litigation is so expensive it has been described as the sport of kings. … These expenses, however, may be dwarfed by the social cost of patent litigation in reducing incentives for producers to bring innovative products to market.” (footnote and internal quotation marks omitted)).

Fourth, and most fundamentally, generically-implemented software invariably lacks the concrete borders the patent law demands. See, e.g., Digital Equip. Corp. v. AltaVista Tech., Inc., 960 F. Supp. 456, 462 (D. Mass. 1997) (“The Internet has no territorial boundaries. To paraphrase Gertrude Stein, as far as the Internet is concerned, not only is there perhaps ‘no there there,’ the ‘there’ is everywhere where there is Internet access.”). Patent protection is all about boundaries. An applicant has the right to obtain a patent only if he can describe, with reasonable clarity, the metes and bounds of his invention. See Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722, 730 (2002) (explaining that the patent “monopoly is a property right[ ] and like any property right, its boundaries should be clear”). A properly issued patent claim represents a line of demarcation, defining the territory over which the patentee can exercise the right to exclude. See Nautilus, Inc. v. Biosig Instruments, Inc., 134 S. Ct. 2120, 2129 (2014) (emphasizing that “a patent must be precise enough to afford clear notice of what is claimed, thereby appris[ing] the public of what is still open to them” (citations and internal quotation marks omitted)).

Software, however, is akin to a work of literature or a piece of music, undeniably important, but too unbounded, i.e., too “abstract,” to qualify as a patent-eligible invention. See Microsoft, 550 U.S. at 447–48 (explaining that software “instructions … detached from any medium” are analogous to “[t]he notes of Beethoven’s Ninth Symphony”). And, as discussed previously, given that generic computers are both omnipresent and indispensable, they are incapable of providing structure “sufficiently definite to confine the patent monopoly within rather definite bounds,” Benson, 409 U.S. at 69. In short, because directing that software should be applied via standard computer elements is little different than stating that it should be written down using pen and paper, generically-implemented software lacks the concrete contours required by section 101. See Alice, 134 S. Ct. at 2352 (emphasizing that “merely requiring generic computer implementation” does not remove claims from the realm of the abstract).

Declaring that software implemented on a generic computer falls outside of section 101 would provide much-needed clarity and consistency in our approach to patent eligibility. It would end the semantic gymnastics of trying to bootstrap software into the patent system by alleging it offers a “specific method of filtering Internet content,” see BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016), makes the computer faster, see Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337–39 (Fed. Cir. 2016), or the Internet better, see DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), just to snuggle up to a casual bit of dictum in Alice, 134 S. Ct. at 2359. Software runs computers and the Internet; improving them up to the current limits of technology is merely more of the same. The claims at issue in BASCOM, Enfish, and DDR, like those found patent ineligible in Alice, do “no more than require a generic computer to perform generic computer functions,” Alice, 134 S. Ct. at 2359. Eliminating generically-implemented software patents would clear the patent thicket, ensuring that patent protection promotes, rather than impedes, “the onward march of science,” O’Reilly v. Morse, 56 U.S. (15 How.) 62, 113 (1853), and allowing technological innovation to proceed apace.

 

About Dennis Crouch

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

413 thoughts on “First Amendment Finally Reaches Patent Law

  1. What first amendment problem is there in an individual filtering out viruses from digital data bound for the individual or with an individual subscribing for such a service? Moreover, what difference does it make that the method used to filter out a virus is patented or not?

  2. So much to laugh at as the PuppyDog Whiners Club gets their mouths all foamy over Mayer’s concurrence. It’s especially amusing — it always is! — to see the big cheese tripping over his toenails and fantasizing about being sued by Judge Mayer. LOL!

    But let’s just skip to this silliness from one of the many bruised software patent luvvers clinging to the damp walls of Big Q’s echo chamber:

    Mayer also seems to forget that the First Amendment applies government restriction on the freedom of speech.

    He didn’t forget.

    As far as I am aware of, the First Amendment does not apply to a private entity (e.g., a company) restricting speech.

    Well, let’s educate this confused commenter. First of all, Congress passed the patent laws so if the patent laws are construed in a way that results in a restriction in free speech, then there is a First Amendment problem. Second of all, there is no second of all.

    Golly, this is so difficult.

    Of course, all this deep thinking sycophant needed to do was consider a simply hypothetical entitlement handed out by the government, e.g., “A method of displaying information with a computer, wherein said information relates to X” whereupon the owner of the entitlement goes around threatening everybody with a Federal lawsuit. That kind of consideration, unfortunately, would make the sycophant sad and prove Mayer’s point. Best to avoid it!

    Or consider what happened in another related area of intellectual property where government created entitlements concerning information are given to private actors: Copyright Law. Gee, does anybody remember any First Amendment issues popping up in that context? Too bad there’s no way to look this stuff up…

    1. Yay – “sycophant” again.

      Like I said: it is difficult for Malcolm to learn his lesson. H just keeps on steaming out the CRP.

  3. What is a “generic computer” ?

    What is a “computer” ?

    Is it a machine with a von Neumann architecture?

    How about a Harvard architecture (or a modified Harvard architecture) which most DSPs use?

    How about a single chip microcontroller that doesn’t do anything until you program it?

    How about a micro-programmed state machine that replaces a board full of random logic?

    Is it a machine that you buy from a store (or online) that is fully functional as soon as you take it out of the box and plug it in? (That would rule out any machine running Microsoft Windows.)

    Does it have to be digital? How about analog computers? (Just about anything with an op-amp is an analog computer.)

    Is a “computer” something that you cannot precisely define “but I know it when I see it?”

    In that case a “computer” is an abstract idea. Or pornography.

    Unfortunately, computers (even generic computers) now provide the foundation for our technological civilization.

    If anything with a computer (and almost anything can be considered generic) is now unpatentable then very few things will be eligible for patent protection.

    That leaves pharmaceuticals (and other chemicals) and some method patents.

    And things with gears and levers. Maybe even some flashing lights as long as they are controlled by mechanical switches.

    Oh, wait. The original computers were made with gears and levers and flashing lights.

    1. The original computers were made with gears and levers and flashing lights.

      What did the claims look like?

      “A box with gears, levers and lights, wherein said box processes data.”

      Right?

      LOL

      You guys really are a j0ke.

  4. “A display wherein said display comprises non-obvious negative facts about Donald Trump.”

    Does anyone here want to argue that there isn’t a First Amendment problem raised when the government hands out an entitlement like this, and/or permits that entitlement to threaten others into silence?

    If so, I’d love to hear the argument.

      1. Nothing “straw” about this claim.

        Can you spot the First Amendment issue, “anon”? If you can’t, just say so.

        Tell everybody. Can you see the First Amendment issue? Yes or no.

        Make Dennis and Jason proud, “anon.” They do all they can to help you out here. Let’s see you make them proud.

          1. Judge Mayer has raised the issue of the First Amendment as applied to “do it on a computer” claims. He didn’t raise the issue in a vacuum.

            In response you and a tiny handful of others have explicitly stated that Mayer is “rogue” and/or that (bizarrely) the First Amendment isn’t applicable to patent law.

            Go ahead and walk back your comments, if you like. That would be wise!

            Or you can just answer the simple question I asked you about this straightforward claim.

            Refusing to address the issue is itself very revealing, “anon.” But hardly surprising to most of us.

            So go ahead: answer the question.

            1. he didn’t raise it in a vacuum

              At least the second time today that you have raised that assertion.

              You refused to back it up the first time.

              Can you back it up this time?

              1. Judge Mayer lives on earth. He’s a judge. He reads a lot of patent briefs. He hears a lot of arguments. He thinks about this stuff all the time. He talks with people all the time. He’s aware of the First Amendment. He knows that patent claims provide exclusive rights. Therefore: his views are not generated in a vacuum.

                Go ahead and dispute these facts, if you like. Everyone will be impressed!

                Here’s the claim you were asked about again, “anon”:

                “A display wherein said display comprises non-obvious negative facts about Donald Trump.”

                Is there a First Amendment issue, “anon”?

                It’s amazing that you find this so difficult to address. But I’m loving the depths to which you are sinking to avoid it!

                1. I am not askign for Judge Mayer to back up his schlock.

                  I am not having a conversation with Judge Mayer.

                  I am having a conversation with you.

                  I am asking you to back up your schlock.

                  You seem unwilling or unable to do so.

                  Stop trying to dissemble and have me chase hither and yon. Stop trying to change the subject with your B$ strawman claim.

                  You are the one in the spotlight – you are the one finding this difficult to address (after boasting how widespread it is), you are the one sinking to depths to avoid backing up your own position.

                  Your

                  A
                  O
                  O
                  T
                  W
                  M
                  D

                  fails utterly yet again.

                  And yes, this is “visible” to everyone.

                  Who knows, Maybe Prof. Crouch will bring DISQUS back and eliminate that ultra high level security option and ALL of your quackery will be visible in one place.

                  Wouldn’t that be nice?

                2. I am not asking for Judge Mayer to back up his schlock.

                  Right. I’m asking you to defend your statement that what he wrote about the First Amendment is “schlock”, and that he’s a rogue judge that should be punished.

                  But you seem unable to do that, just as you are unable to back up your statement that Kevin Collins is clueless about “the Art.”

                  And yet you sit on your high horse and puff yourself up because … somehow … your insults are “better” than everyone else’s.

                  Dennis, can you figure out where “anon” gets this strange ideas about himself? You seemed to have had some insights in the past. Maybe it’s time to revisit them.

                3. LOL – not at all Malcolm.

                  You again err in your mischaracterization of my comments regarding an author with no experience in innovation or the patent world.

                  You also sidestep the fact that I asked you first for corroboration – and that it is only your attempt at deflection that brings about your desire to have me support the Judge Mayer comments.

                  Stop deflecting.

                  (also, I HAVE answered your question about Judge Mayer, and further invited you to select any of his items that you wanted to discuss further – that you have a difficult time with the answer is a YOU problem)

                  I sit on the horse that you have provided, And yes, my insults ARE better – as I have pointed out to you, they are on point, accurate, and certainly but only a part of my communications. Whining to Prof. Crouch (right after your CRPfest has been flushed) will not change any of that.

            2. LOL – I’ve told you twice now I am having a conversation at a higher level and you still want to jump back to some specific claim (which you don’t even bother to reproduce here – as surely your strawman at top cannot be what you are referring to).

              Maybe you want to stick to the point of our conversation instead of playing these “Internet tough guy” games?

              1. I’ve told you twice now I am having a conversation at a higher level

                That’s nice. You can tell me that you’re a golden god if you like, too.

                It doesn’t change the fact that you are doing backflips to avoid answering a really straightforward question that is directly responsive to your own comments about Judge Mayer’s opinion.

                But go ahead and pretend otherwise if you like.

                1. It doesn’t change the fact that you are doing backflips to avoid answering a really straightforward question

                  LOL – it very much changes that “fact” because I immediately rejected your straw man question – no “backflips” required at all.

                  There is no “pretending” on my part.

                  At all.

                  You on the other hand, refuse to recognize what our conversation has been about, and refuse to do that “really straightforward” thing that I asked of you.

                  That you are attempting to accuse me of doing that which you do – well, that IS your number one deflection meme (and that too is visible for all to see).

                2. I immediately rejected your straw man question – no “backflips” required at all.

                  The question is not a strawman, “anon”. Saying “is so! is so!” without any explanation is your “backflip.”

                  And, no, reciting the definition of strawman isn’t going to help you here.

                3. It IS a strawman.

                  As I have already mentioned – do you need me to post the definition of “straw man” and map your question to the definition?

                  I have done that in the past for you – but apparently you do not learn lessons very well.

                  Your identification of “backflip” takes that word out of the scope of its definition. There is no “backlfip” involved.

    1. What a surprise that the best response the luvvers of “do it on a computer” junk can come up with is “What’s a computer”?

      Super deep stuff! They’re very serious people. Really clever!

      1. And yet, that question has you stumped, and being frenetic about some glib one-liner “answer” that you cannot be serious about (given the context of the question).

        “Go figure Folks”

  5. JCD <iIf Mayer is going to argue that any method performed utilizing conventional computer components is abstract, then couldn’t this be extended to argue that any method performed utilizing conventional components is abstract?

    No.

    That’s because logic is abstract. Information is different. This is why we have the so-called “judicial exceptions” in the first place.

    Any other questions?

    1. Some catch up reading for those who are still confused by this:

      link to a1papers.ssrn.com

      These aren’t new concepts. We’ve been talking about them here for years. Collins is an especially excellent writer, however, and he’s very skilled at breaking the issues down.

          1. It’s not an insult – it’s an observation.

            The Art is the Art we so often wrangle over; the same one that you like to pretend that the patent aspect of PHOSITA does not exist.

            Of course, you already knew this, and you are just tr011ing me (no doubt because your feelings are hurt because of this mornings smackdown on your massive CRPfest)

            1. The Art is the Art we so often wrangle over; the same one that you like to pretend that the patent aspect of PHOSITA does not exist.

              Oh, you must mean the “Art” of using existing information processing machines for their intended purpose, e.g., using a computer on a network to display a certain kind of information in response to a prompt.

              Tell everyone what your basis is for asserting that Kevin Collins doesn’t “have a clue” about that Art.

              Go ahead.

              1. Lol – perhaps you want to try again with the proper patent doctrine of inherency Malcolm – like how I have asked you for how long now?

                Or would you rather keep on dissembling?

                1. perhaps you want to try again with the proper patent doctrine of inherency Malcolm

                  This is how you defend calling Collins “clueless” about “the Art”?

                  LOL

                  But you’re totally not a hypocrite! Nope. You’re a totally objective person who would never, ever just throw out a baseless insult.

                  Funny stuff. Are you laughing, too, Dennis? I hope so.

                2. my answer is fully legitimate.

                  That answer, again:

                  Kevin Collins is clueless about “the Art” (and “anon” won’t specify what “art” he’s referring to) because “anon” says so.

                  And this is “fully legitimate” and “anon” isn’t a hypocrite when he whines about “drive bys” and “insults.”

                  Are you laughing, Dennis? Because this is pretty funny stuff.

                  You better hurry up and delete all my bad comments. I’m so unfair to “anon”!

                3. You really are struggling to understand why you are such an arse and a blight, aren’t you?

                  Are you that clueless?

                  Or is this merely more of your dissembling?

                  Maybe both…?

                4. The drive-bys have to do with the purposeful ig noring of counterpoints and the ad nauseum ad infinitum repetition of points that generated the counterpoints.

                  You have that mixed up with accusing me of that.

                  I have already (multiple times) distinguished the insults.

                  Yours are all that you supply and are not on point.

                  Mine are only part of what I post and are both accurate and on point.

                  Maybe do more on the substantive matters Malcolm, and you might “earn” – little slack on the rougher parts of the exchanges.

                5. the purposeful ig noring of counterpoints

                  What counterpoints am I ign0ring, “anon”?

                  Tell everyone.

                  I asked you a simple question about simple fact pattern directly responsive to your own statements about Mayer’s opinion and similar claims. What counterpoints of yours have I ignored?

                  Just answer the simple question, “anon.” Don’t be ashamed. It’s not as if the question is going to go away.

                  I can assure it’s not going to go away.

                6. I have already (multiple times) distinguished the insults.

                  I do hope you’re paying attention, Dennis! You see: “anon”‘s insults are always justified, even when he can’t justify them or even come close to justifying them. It’s everyone else that is the problem. If only we could all understand how smart and correct “anon” is then we wouldn’t question his deep thought! Oh, he’s soooo serious, Dennis.

                  I’m always happy to revisit our earlier conversations re “anon”. But you know already that these things play out over and over again exactly as I predicted they would. And it gets way worse as the system gets closer and closer to chucking “anon’s” precious entitlement away.

                7. What counterpoints?

                  LOL – all of them.

                  Do you really need me to point them out to you AGAIN?

                  Maybe we can start with the inherency doctrine and [Old Box] – how about that one?

                8. I asked you a simple question about simple fact pattern directly responsive to your own statements about Mayer’s opinion and similar claims.

                  You v0m1ted up a straw man as a diversion to our conversation, and now refuse to move forward with that conversation.

                9. I do hope you’re paying attention, Dennis!

                  So do I.

                  So do I.

                  Except for you, that won’t be a good thing.

                10. “anon” I welcome such questions. But you don’t ever engage

                  Thank goodness you are such an honest person.

        1. Collins has no clue of the patent law aspects of this Art field.

          For the record, I rescind this comment. To a degree.

          Collins does have a clue – but he seeks to import his own philosophy and over ride the law as written by Congress.

          It is that effort to change what the law is based on his personal views of what “should be” that itself twists and contorts things that is objectionable.

          1. Your constant refrain. Nobody should describe how things “should be” because they don’t comport with how things “are”…..

            Meanwhile you almost never cite cases or authorities – naturally, because YOU are all the authority you will ever need.

            Collins is smart, but too smart by half because his prescriptions are too complicated for practical use by the public, the patent bar, or the courts.

            Congress represents the will of the people (Platonically) and if that will changes, laws will change.

            1. Your constant refrain.

              It so happens to be a guiding “refrain” for law.

              But if you dared embrace the terrain upon which you wish to do battle, you would recognize this and not be so ruffled by it.

              As for authorities – I have cited plenty – not every conversation (nor most even) must contain citations. Further, given your lack of care for the legal domain, of what good would citations provide?

              Collins is smart and is too smart by half. But it is NOT that he lacks the ability to “connect with the common man” that is his downfall – rather – like you – his downfall is in thinking that his philosophy/feelings/scheme/opinion has equal weight with the actual law.

              It does not.

              He dwells far too much in academic “theory,” and post-hoc rationalizations geared to fit his pre-conceived notions of how patent law should work, and fails to recognize that his assumptions at the base of his theories are NOT aligned with the actual law or actual history of law, but are rather his musings based on his preconceived ideals.

              And yes, Congress and the will of the people and all that (to a degree – remember that as property, there are other Constitutional protections that even Congress cannot violate)

            2. …and as I indicated to Malcolm, I have no issues with those that want to play fantasy and say that this other (currently non-existent) patent scheme would be lovely.

              But that is not what is going on here. What is going on is an active attempt to change the current law by the subtle and pernicious path of having the courts re-write patent law. What is going on is the dissembling to conflate that re-writing with “interpretation” – all in the guise of “The Ends justify the Means” and NOT use the proper means of changing the statutory law that is patent law. What is going on is the rampant use of propaganda and “repeat something often enough that it gains the illusion of truth,” all the while counter points based in actual law and fact are down right ig nored (the drive-by monologue, internet style shout down).

              We can have a nice discussion of the number of angels dancing on the head of a pin.

              We can have a nice discussion of any number of fantasy-if-the-patent-law-were-thus scenarios.

              But as long as there is mis-perceptions perpetrated (whether not deliberate, or as in Malcolm’s case, deliberate), we are fine.

              And to your last thought of Congress changing – this is perfectly in line with my repeated advise to you: contact your Congressman. And yet somehow, you want to act as if I were your enemy. Your enemy is those that may share your desired end, but who care not for the means to that end.

              1. No, what is happening is the shutting down of one of the most expensive rackets in history, engendered by an unexpected change in technology and society that far outpaced the ability of Congress to change the suddenly maladapted and unworkable law and stop bad actors from exploiting it.

                That change is the sudden economic primacy of automated information processing-and thus the relations between information and patent law.

                That left the courts, who have a duty to both law and justice, to do what could be done within Constitutional norms to mitigate the damage. When Congress did attempt a major fix, the problem was misidentified and so the interventions were not very effective.

                Meanwhile, your pedantic insistence that Congress is the sole lawmaking authority is completely undone by the existence of the regulatory state and the practical reality that there is always, and there will always be, constructive overlap in the creation and execution of the laws between the three branches of government.

                Collins and other reform-minded people, including myself, understand the problem to be a political one. Fixes can come from congress, courts, or the executive (USPTO) and it need not matter which so long as the political power to make the change exists and is deployed.

                Your dream that the patent law came off a mountain and is inviolate is more detached from reality, by far, than the schemes people are creating to firmly overcome the problem- a racket that still rages.

                You will get your next dose of courts writing law when Apple v. Samsung comes out 8-0 that damages accrue to the article of manufacture and not a whole product.

                1. LOL – see? You do have a biased agenda against the current system because of how you feel and your own personal “tragedy.”

                  Your imputing emotive words does not change what is the law here and now, nor the proper path to take (the proper Means) of changing that law.

                  There is nothing pedantic about anything that I have posted.

                  The “ends justify the means” is very much a real problem – especially in law.

                  That you neither recognize nor appreciate this does not make it go away.

                  Your “Your dream that the patent law came off a mountain and is inviolate is more detached from reality, by far” is itself detached from reality. Remember – I base my positions on the reality of what is law now, the history of that law, and the factual predicates of both and the factual predicates of innovation. If you have a problem with anything I say, the avenue to address that problem is NOT through unfounded, baseless and emotive ad hominem, but to address (in the actual meaning of that term) the law, the history and the facts that are really there.

                  Painting yourself as the “good guy” reformists does not cut it.

                  Even noble ends are decrepit in law when the “ends justify the means” overtakes the proper role of law – and the changing of law.

                  Read a little Sir Thomas More – and then stand before the devil after you would mow down the law to get to your desired Ends.

                2. Your lack of understanding and appreciation of the law shines through again:

                  The Apple v Samsung case (iirc) deals with damages – an area of the law written by Congress that has expressly shared its authority with the Courts.

                  Any decision there will not affect my views in any way.

    2. Yes professor. Which court said computer’s are different than other conventional components? Would you provide a citation please?

      1. Which court said computer’s are different than other conventional components?

        Well, they are “different” than other “conventional components”. That’s why we call them “computers”. You don’t really need a court to tell you that, do you?

        But the answer to your question is: the Supreme Court, in Alice. Did they say it expressly? Probably not. Implicitly? Of course.

        Note that there are plenty of other “conventional components” that are treated similarly from a 101 perspective. Those would be all the other “conventional components” for communicating and storing information. You can’t ineligible subject matter (e.g., preparing a legal agreement) and make it eligible by reciting “do it on the phone.”

        Pretty basic stuff.

        Once again: information and information processing raise unique issues for every patent system. Computers exist to receive store and process information. Hence their special treatment.

        Nothing new here.

              1. He’s all about the “substance”,folks. He doesn’t focus on “form.”

                And he’s totally not a hypocrite. Nope. It would be rude to even suggest that.

                1. This is a case where the form directly affects the substance.

                  You are well known for dodging counter points because you couched terms with apostrophes, and then later moved the goalposts.

                  Clearly, this is different than the bold or italics items that YOU like to divert attention to when you don’t want to address a substantive point.

                  Clearly, I am after what YOU are saying IS substantive here.

                  Your

                  A
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                  is an abject failure.

                2. divert attention

                  Thank goodness you never do this! And you’re totally not a hypocrite.

                  Meanwhile, my reply to Les is crystal. If there’s something in there that’s confusing to you, just let me know. Happy to answer. I’m not a sniveling coward like you, “anon.”

                  Have you complained to your congressman about Judge Mayer’s “rogue” and “lawless” behavior yet, by the way? Because you sound really angry.

                  LOL

                3. Your reply is anything BUT crystal.

                  And if it were crystal, you would have no problem restating it without all the apostrophes.

                  And yet, you do no such thing and only whine that I “dare” ask you to be more clear (especially given your past history, which I also explained).

                  Being inte11ectually honest seems next to impossible for you.

                  Why is that?

                4. You say “happy to answer” and throw baseless ad hominem at me at the same time that you have refused to answer by removing the apostrophes and stating your position more clearly.

                  Yay ecosystem.

                5. (..and yet another example of what Malcolm means when he says that he always supports his opinions….)

                  What Malcolm calls “support” is otherwise known as “blight.”

        1. “Note that there are plenty of other “conventional components” that are treated similarly from a 101 perspective. Those would be all the other “conventional components” for communicating and storing information. You can’t ineligible subject matter (e.g., preparing a legal agreement) and make it eligible by reciting “do it on the phone.””

          That would be an indication that generic computers ARE THE SAME as other conventional component.

          So you have switched your position and are now saying any method that involves the use of known devices is not patent eligible because “do it with conventional device” poisons eligibility. For example, making a flying machine with conventional lumber, cloth and rope is not eligible.

          1. He is stumbling down his “Big Box of Protons, Neutrons and Electrons” “logic” without a clue as to why it leads him where it does (into the weeds).

            All that he knows is that he feels that no software at all should be patent eligible.

            1. Note that he refuses to actually join the discussion on what exactly is a “generic computer” and only has tried (twice) to derail that conversation.

              Gee, I wonder why?

              1. he refuses to actually join the discussion on what exactly is a “generic computer”

                In fact, both times when I saw the subject raised I provided a definition.

                So much for “refusal.”

                1. You did no such thing on either of my posts – all you did was your typical B$ stroll through the weeds.

                  But feel free to actually address what I wrote and designate exactly the “objective physical structure” of this “generic computer” (along with explicitly what software that [Old Box] has been changed and configured with).

                  Because we all know how you feel about the patent doctrine of inherency and know that you would want – nay demand – that the “generic computer” be every bit as painstakingly described as your continued adoration of one optional claim format would have it.

                  (I will not hold my breath for your inte11ectually honest response)

                2. Your one line “response” to one of my posts appeared after I had written the above response – be that as it may, that one line response is woefully inadequate by any normal standards – and immensely more so by the optional format that you would have applied.

                  So once again what you profess as an answer (your “definition”) is not a true and inte11ectually honest answer.

          2. generic computers ARE THE SAME as other conventional component.

            Generic computers are, indeed, conventional components.

            I don’t understand what game you are playing are with the all caps or why you find it so difficult to write plainly. But I am sure it doesn’t make a hill of beans of difference.

            ou have switched your position

            No, I have not.

            any method that involves the use of known devices is not patent eligible because “do it with conventional device” poisons eligibility.

            That’s not my position. Never has been.

            Generic computers are conventional components, i.e., they exist in the prior art. If you want to use a generic computer to do something that it wasn’t intended to do, i.e., form part of a more complex pill that you can use to treat cancer by oral administration to a whale, go ahead and claim it. It’ll probably be eligible.

            But using it to process data using logic or using it to store data or using it to display or otherwise communicate data is always going to present a subject matter eligibility issue. That’s never going to change. And, as I already noted, this basic truth applies equally to other communication devices or other prior art devices used to store or process data. Why is that? Because data is special. Data is information. And information raises special issues because (in part) there’s that First Amendment thing (even if get rid of 101 entirely).

            I’d love to hear Dennis rip what I just wrote apart. Please do it Dennis! Do these guys a favor and help them out.

            1. I’d love to hear Dennis rip what I just wrote apart. Please do it Dennis! Do these guys a favor and help them out.

              Sounds like there is an inside story here.

              Maybe that is why you have been so frenetic today Malcolm.

              Did you buy a puppy for yourself?

            2. Generic computers are conventional components

              So since they are conventional, you should be able to lay out the complete and specific “objective physical structure.”

              Let me know if you mean to include any software with that (and how you plan to describe that software).

        2. Your “computers exist to” meme is a failure, since you refuse to engage in any type of inte11ectually honest conversation about any improvements to [Old Box] that are not “already in there” and the proper patent doctrine of inherency.

          What you are trying to do – but are too much of a coward to simply say so – is to employ a type of “Morse” any and all future improvements through the machine component and manufacture known as software are somehow (magically) “already in there.”

          Let’s see you run away yet again, and then drive by and attempt the same exact thing without taking the counterpoint presented into consideration (only for the gazillionth time, mind you).

          1. Your “computers exist to” meme is a failure

            Not at all. It’s not a meme, but rather an accurate statement and it’s already had a huge impact on the case law.

            you refuse to engage in any type of inte11ectually honest conversation about any improvements to [Old Box] that are not “already in there”

            No, I’ve engaged you in that discussion dozens if not hundreds of times. Nobody questions whether a programmed computer is different from a computer that is merely built to be programmed. The issue is how those differences need to be claimed. As everyone is well aware, computers are treated very differently for reasons that were very poorly thought out. Hence the imploding of the patent system. Hence the ongoing and never ending stream of disappointment for you. Well, it will end eventually … but not in the way you want it to.

            the proper patent doctrine of inherency.

            This is just your [old box] silliness dressed in a different suit. A book with new writing in it has different properties than a book without writing in it. So what? What’s the point? How does that fact make the ineligible writing suddenly eligible for patent protection?

            Your next game is to screech some ridiculousness about how I’m not allowed to make this analogy. But of course I’m allowed to make the analogy! And it’s not going away, ever, particularly when — as we speak — patents on communicating information using old technology (old tech = computerized devices, structurally distinguished as such, and in the prior art) are being applied for, granted and asserted. You need to come up with much better arguments or, as I’ve suggested in the past, much better fallback positions to which you’ve given some extensive thought about their workability (or I’ll explain the lack of workability to you).

            1. . The issue is how those differences need to be claimed.

              You are SOOOO full of B$.

              You are on record that the manner of claiming does not matter and that ALL software – per se – is not eligible.

              That’s the problem you have with your dissembling (and with someone not letting you get away with your CRP). Your true “feelings” are exposed – as is your lack of having any real legal logic to back you up.

    3. Why are you still being inte11ectually dishonest and trying to mischaracterize software as “logic?”

      For a different aspect of software, can you obtain a copyright on “logic?”

      Clearly Malcolm, your continued misrepresentations are a blight and forestall any real dialogue.

      1. Meanwhile …

        Communications component 706 may comprise logic, circuitry, and/or instructions

        The first of 150,000 hits of a relatively narrow PTO database search. (the patent granted yesterday).

        LOLOLOLOLOLOLOLOLOLOLOL

        Oh, I can hardly wait for the super serious reply. Perhaps the spec was drafted by some “clueless” person unskilled in “the Art”?

        Gosh, I’m so unfair.

        1. Again, the poker tell of “super serious” while you have avoided completely even bothering to reply on point.

          It is NOT that you are being “unfair to anon.”

          It is that you are being a blight to all readers.

          anon just happens to be the one not putting up with your CRP and shoving your nose back into your own feces.

          1. you are being a blight to all readers.

            Why is that “anon”? Because I “refuse to engage you”?

            Here’s how it works: you make an assertion. I ask you to back it up. You don’t back it up and then you insult me.

            Or you make an assertion. I ask you a direct follow up question based on your assertion. You refuse to answer and insult me.

            You do this habitually, and you don’t just do it to me.

            You haven’t noticed? Everyone else has.

            I’m really sorry if you don’t like my opinions about software patents, “anon.” But I can back them up. And I always do. And my arguments keep showing up in CAFC opinions and Supreme Court opinions that you don’t like. That must be extremely frustrating for you.

            At the same time you continually make strange statements (software isn’t logic? really?) and fling insults that you can’t back up. And I never hesitate to point that out. And I never will.

            I’ve discussed all this with Dennis before, by the way, along with your ment@l health generally. I’m happy to have that discussion again.

            1. Why is that “anon”?

              Asked and answered.

              Answered many many many times now.

              Pay attention son.

              Here’s how it works

              LOL – no, your “way” is most definitely NOT “how it works.” We have ten years of “data’ showing otherwise. All you do here is play your little game of
              A
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              You haven’t noticed? Everyone else has.

              This ploy of yours does not work. Maybe you have forgotten already my response and the DISQUS episode?

              I’m really sorry if you don’t like my opinions about software patents, “anon.” But I can back them up. And I always do.

              Your “version” of backing them up is denial/deception/diversion – THAT is what you always do. And THAT is what the plain black and white of the archives present.

              There is NOTHING strange about the statement that software is not logic. Maybe you want to actually answer the question I put to you about YOUR assertion – the question about an aspect of software being able to earn copyright protection and the plain fact that logic is not able to be protected by copyright…. (funny how this thing of your “always do” never seems to actually happen in the black and white of this blog. That “always do” of yours must get stuck and lost in your head – maybe it is being tossed between the sockpuppets that you “never use.”

              And finally YOUR discussions of anyone else’s mental health – when you exhibit the cognitive dissonance of someone who despises patents so, and then claim to be in the business of obtaining patents for clients is more than a little suspect (as is the fact that you merely use such a meme – along with your Vinnie Barbarino “huh, what?” meme as an evasive tactic).

              Maybe less “discussion with Dennis” and more – with simple intelligent and with inte11ectual honesty – discussion of the counter points raised.

              You can start with dropping your number one meme of
              A(ccuse)
              O(thers)
              O(f)
              T(hat)
              W(hich)
              M(alcom)
              D(oes)

              But we BOTH know that won’t “make you happy” – and we both know WHY that won’t “make you happy.”

              1. I’m really sorry if you don’t like my opinions about software patents

                It is not your opinions that I take issue with, Malcolm.

                It is you attempting to dress up your opinions as something else – either as controlling law or as facts – neither of which your opinions are – and both of which do not support your opinions.

                But you do NOT post in any sense of inte11ectual honesty and clearly state that it is merely your “opinion that…”

                We both know why you dissemble in how you DO state your opinion. You would lose any perceived (propaganda) value if you are clear that you are only stating your opinion – because – as I have so often done in response – showing that the law and the facts just are not in accord with you opinion shows your opinion to be as flaccid as it is.

                And then it would also be evident that you are NOT actually engaging in a discussion about law and facts.

                I have not said it in awhile, but the following statement very much applies to your opinions:

                When you have the law – pound the law.
                When you have the facts – pound the facts.

                When you have neither – pound the table.,

                Your opinion – so often in disguise – is nothing more than you pounding the table.

                And yes, everyone sees that.

          2. you have avoided completely even bothering to reply on point.

            Wrong. I directly addressed your assertion that referring to software as “logic” is a “mischaracterization”.

            It’s not a mischaracterization at all, unless there are hundreds of thousands of skilled artisans obtaining patents who don’t know what they are talking about. These are the same patents that you are championing, of course. Kinda odd for you to be smearing the authors …

            1. . I directly addressed your assertion that referring to software as “logic” is a “mischaracterization”.

              LOL – this is nothing more than your past game playing with the word “addressed”

              You continually fail to understand how words are used by PHOSITA and think that because you see “a word” that you can take that word out of context and use your “sniff” method and use any other meaning of the word and that is somehow “proof” that you are not mischaracterizing things.

              Sorry – but that IS mischaracterizing things.

  6. Speaking of “Freedom of Speech,” I can’t help noting that certain posts made here over the past coupla days have been deleted.

    Not that I’m complaining mind you (in fact, I think big brother missed a few)…. but it does make it look like I been talkin’ to myself.

  7. Down below, Malcolm tried to derail this, so let’s start again and have (any) other commentators chirp in:

    Is it still a “generic computer” after having been changed and having new capabilities added with the configuration of additional software?

    The patent doctrine missing here is the Inherency Doctrine.

    If [Old Box] without ANY additional changes whatsoever already inherently has the new capabilities, them the capabilities are not new and there is no change necessary to [Old Box] to HAVE the capability being evaluated.

    But as readily shown by the age-old example here of the Grand Hall experiment, those merely wanting [Old Box] to somehow have “already in there” ALL future improvements that could come by way of the manufacture of software violate the Morse case.

    All future improvements by way of reconfigured machines are NOT “already in there.”

    1. I don’t think the law is ever going to reach a point where all software is eligible. But at least now there is hope for “McRO type of software” because such software claims are eligible under McRO, and this does not require us to get into a discussion of what it means to be “significantly more” than an abstract idea, or whether and how software causes a generic computer to become non-generic.

      1. Genghis, thank you, but I do not think that what you offer will be good enough.

        It has become critical – for all parties involved – to understand what exactly is meant by a “generic computer.”

        Which software – exactly – is necessary not only from a 102/103 point, but from a much different and larger 101 point?

        If we are going to take the words of Congress seriously (“and any improvements to a machine”), we need to know exactly – down to the installed and configured software – what constitutes this “absolute bar” of “just a generic computer.”

        This too is why I stress the inherency doctrine. That doctrine must then be satisfied if the claim is taken by the court to BE “just” a generic computer.

        And then – even after satisfying the doctrine of inherency – then the courts have to deal with the direct words of Congress in 35 USC 100(b): that even a new use of something old IS worthy of a patent.

        There is a serious lack of critical thinking that is going on with this “just a generic computer” phrase.

        Quite the opposite of your “let’s close our eyes” view, Genghis – it is time that we open them wide.

          1. That is completely unacceptable (and unworkable).

            Further – this has ZERO critical thinking along the various lines of thought that I have asked about – and ZERO accounting of exactly what software is involved.

            Did I mention that it lacks your own “requirements” for “objective physical structure”…?

            For shame Malcolm for you to attempt to pass this off as any type of inte11ectually honest – and critically thought through – answer. For shame.

  8. Software claims worth defending?

    US7400681 (MPEG)

    1. A method for predicting motion vectors associated with blocks of pixels of a picture to be included in a data stream for differential motion vector coding of a video signal, said method comprising the steps of:
    organising a set of reference pictures into a pair of lists and according to each reference picture within said lists at least one reference index;
    associating with selected ones of said blocks in said video signal at least one motion vector that references a respective one of said lists, each vector associated with a selected one of the blocks referencing a different list of said lists, each vector defining disposition of said selected one of the blocks relative to a reference picture in the respective one of said lists; and,
    computing a predicted value for a current vector of said vectors for a current block from vectors of adjacent blocks referencing a same list of reference pictures as the current vector, wherein prediction of a motion vector that selects a reference picture using a first list of reference pictures is not dependent upon motion vectors whose reference pictures are selected using a second list of reference pictures.

    Here is a non-MPEG patent, but an abstract information invention that I think should be a patent-eligible:

    US 7,346,156 B1

    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.

    1. The claim recites a method and therefore includes verbs/gerunds. This is enough to cause you to laugh out loud. Why? Because you have seen these words before?

      1. “organizing, associating, and computing <— laughable

        detecting, receiving, identifying, connecting (LOL) <– not even worth laughing at but I laughed anyway"

        Your laughing here because I am a super serious person?

        If that's the case, check your meds.

    2. I fail to see the humor. Organizing, associating, computing,
      detecting, receiving, identifying & connecting are basics steps of information processing. Information processing involves, you know, processes. From a policy perspective, a great many technology stakeholders, politicians, and judicial actors seriously believe that things like MPEG and other novel encryption and networking methods & standards are deserving of patent protection. I can see the argument against, but if it were laughable, we would not have 11 different views on the CAFC.

      1. Your reading of McRO, Enfish, or DDR, or Alice for that matter is idiosyncratic, as it would be when read by any of the 11 CAFC judges, the 8 USSC justices, the 535 members of Congress, or the thousands of lawyers and businesspeople who may try to import some reliability into which method patents will be found ineligible v. obvious v. not fully described.

        The MPEG patents are in force and not seriously challenged, as people pay licenses on them and as far as I know, none has been brought in for a DJ action. The phone patent was litigated and found ineligible under 101, but with expert testimony that the method was useful, novel, and met a longstanding need.

        In my scheme, both are eligible because in both cases, non human actors are the consumers of the information generated by the method.

        The patent Mayer found ineligible to me should have been eligible but then gone out as either utterly obvious (client-server concepts are ancient) and/or too broad to teach an invention under 112 (as just presenting the goal of stopping viruses or the mere idea of deploying conventional anti-virus on a server).

        The problem is not claims or just how generic a computer has to be or even if a computer is involved at all. The PROBLEM IS INFORMATION.

        The solution is to separate the utility of the information (a key 101 requirement) from that realized by non-human actors – the proper subject of the patent laws- and the use of information by people – as Judge Mayer notes, most surely NOT the subject of the patent laws.

        1. Mr. Snyder, as has been commented to you, your view lacks an understanding of the patent term “utility,” and your attempted carve out has no basis in the law as written by Congress.

          See posts 38 and 38.1.1 for a currently legally congnizant view as to why “generic computer” IS important here.

          I “get” that you want the driver to be something different. But it is not.

          1. waaa waaa- your comments are like abstract ideas with no actual meaning… meanwhile, in the real world, nobody can predict whatsoever which claims will get past any judge and which won’t. See this example of obvious, 90’s rubbish that just got a pass- because “generic” computer- now a whole new scholastic discussion with no rational objective basis.

            link to delawareiplaw.com

            1. Actually, the claims “got a pass” (not precisely true, they just weren’t dismissed out of hand) for several reasons including because NOT “generic” computer.

            2. My posts very much have meaning – your insistence on ig noring that meaning is still a YOU problem.

              That the 101 jurisprudence is messed up is not at question – and is perfectly aligned with my cogent legal views (which does nothing to bring your own fantasies anywhere closer to being in accord with the law, the history of that law, or the meaning of that law).

              Yes, I know that you don’t like this – but that does nothing except make you an unhappy AND purposefully ig norant individual.

              I cannot help you with that, as that remains totally your choice.

          1. How is anything “useful” to a machine?

            Machines simply do not have the cognitive sense to have anything “be useful” to them.

            (Hint: anthropomorphication)

            1. in the plain and ordinary meaning, its something that helps the machine achieve a function. the machine’s thoughts or feelings about that utility are irrelevant.

              Ya know, the way machine components are “useful” to a functioning machine?

              1. In the plain and ordinary meaning, machines lack the cognitive ability to determine whether anything is “useful” for them.

                Machines don’t have thoughts or feelings.

                The utility is always “in the eye” of a person wanting the machine to have/do that function.

                As I have (patiently) tried to tell you Mr. Snyder, you need to understand the patent law meaning of utility.

                You are not there yet.

              2. “Ya know, the way machine components are “useful” to a functioning machine?”

                So, you agree that software (and perhaps other information) is a machine component?

                1. Nice – now do you understand and agree that it is a “manufacture” by the hand of man as that term is used in patent law?

                2. A machine component need not be a manufacture. A rider is a required component of a bicycle when the moving bicycle is considered as a system, and the rider is not a manufacture. The process steps of riding a bike are a tangible use of system components. Because human beings are not patent eligible as machine components does not mean they are not acting in that role.

                  IMO, software that processes information for non-human use mould be considered as manufactures or processes, while software that processes information for human use should be considered authored works of expression.

                3. A machine component need not be a manufacture.

                  That is a non sequitur.

                  Again – a “manufacture” by the hand of man as that term is used in patent law?

                  Mr. Snyder – this is where you need to embrace patent law and not make up your own fantasies as a replacement.

                  Your fantasy is simply not sustainable in how you attempt to cleave what software IS. (you also need to STILL come to grips with the patent concept of utility)

        2. The patent Mayer found ineligible to me should have been eligible but then gone out as either utterly obvious (client-server concepts are ancient) and/or too broad to teach an invention under 112 (as just presenting the goal of stopping viruses or the mere idea of deploying conventional anti-virus on a server).

          I would be OK with that. But I’m also OK with the current situation, however idiosyncratic it may be in your opinion. You seem to think that a “103/112 based solution” would be more clear than the current “101 based solution.” I’m not so sure of that.

          The solution is to separate the utility of the information (a key 101 requirement) from that realized by non-human actors – the proper subject of the patent laws- and the use of information by people – as Judge Mayer notes, most surely NOT the subject of the patent laws.

          Seems like a reasonable approach to me, but not clearly superior to what we have right now.

          1. Clearly superior because it bright-lines the eligibility test for methods which result in information; killing a large proportion of junky patents, while procedurally moving Alice to 103/112 where it belongs, far more effectively guiding the USPTO and the public, and all while complying cleanly with Bilski- so it may be implemented legislatively or judicially with equal legitimacy.

            If you want to ice the cake, expand the Markman procedure for claim construction to construe the result of method patents and operate as a probably cause check on patentability (i.e.Alice) without foreclosing summary judgement motions post full-discovery, experts, depos, etc.

            Pleased to see yet another person acknowledge that my proposal is reasonable. Thanks.

      1. Do you mean the claims I posted or the claims Stark declined to toss on 101?

        In any case, while I appreciate your summary judgement, many respectable people just don’t see every abstract claim (er junk) as unworthy of a patent. The invention in US 7,346,156 B1 is clever, solves a specific problem, and is not a fact about the world repackaged as intellectual property. From my perspective as a member of the public and owner of a tech business, I would have no problem recognizing that patent as legitimate, but it was tanked.

        You and me have sparred over the purported unreliability of the current Alice regime. You say its easy peasy. Other respectable and capable observers think otherwise, and suggest a bright line of SOME sort is needed. I agree with that proposition.

        link to swipreport.com

        1. The “bright line” already exists Mr. Snyder.

          Malcolm is just on the extreme edge of the very same “feelings”/opinion/philosophy that simply does not want to accept that bright line.

          That does not mean that it does not exist.

          Not at all.

  9. Back in 1973, when the patent law experts in Old Europe came together to write the European Patent Convention, they agreed on the stuff that ought not to be eligible. Things like abstract ideas, methods of playing games and doing business, mathematical equations, programs for computers. All that sort of stuff.

    But there is one other category of subject matter they added to the Art 52 EPC list, namely: the presentation of information.

    It doesn’t come up much, in cases at the EPO. Many thought it superfluous.

    It wasn’t though, was it.

      1. Well, yes, anon. Exactly. Art 52(3) EPC. But who in their right mind could wish for anything else but a narrow “as such” limitation on eligibility?

        link to epo.org

        You, Night and Gene Quinn are surely the last ones who would want anything else.

        readers, for an example of a recent EPO Decision on eligibility of games inventions see the link below to Decision T1884/13 (nearly 2000 patentability Decisions already in year 2016, this one directed to the management of on-line poker so the server can manage more plays per unit of time), what is “technical” and what is not. It takes very little time to read. See, not every improvement in computer productivity is “technical” or eligible as such!

        link to epo.org

        1. Max, thanks for the link to the EPO decision. What struck me was that the EPO clearly understands that there cases where claims mix the unpatentable subject matter with the patentable, in the case discussed, poker rules with computerized poker, the rules being unpatentable subject matter but the computer system for implementing it being clearly patentable.

          Clearly, in the United States, patent law fully understood “mixed” subject matter claims, some eligible, some ineligible, for very long period of time until State Street Bank overruled Hotel Security and through a monkey wrench into American patent law. Hotel Security lives on directly in the so-called “printed matter doctrine.” It lives on indirectly in Alice.

          It would have been wonderful had Benson cited Hotel Security in analyzed the claims before it as containing both eligible and ineligible subject. The confusion it caused by not clearly addressing the case this way is the reason, I think, we have been battling over software since.

          It is wonderful to see that Europe fully understands the principles that I believe were first enunciated in this American case.

          1. And yet Ned, you refuse to understand (or indicate that you understand) the exceptions to the judicial doctrine of printed matter (as so finely explicated for you with my simple set theory), and how software as eligible is a direct result of the Complete “printed matter doctrine.”

            Funny how you become so selective when your own Windmill chases are impugned.

          2. Ned, not sure you have correctly understood the cutting edge point of the EPO decision. The EPO filters eligibility under Art 56 EPC, its obviousness hurdle. The claimed computer-implemented method, although eligible, and although faster than the prior art, nevertheless failed the obviousness hurdle. The reasoning why it failed the “103” hurdle is what is interesting.

            Had the claims been directed to a thus-programmed and therefore faster-running computer, the result would have been the same, namely, no patent for you!

    1. Well Max, despite the best efforts of IBM and others, it looks like the patenting of software is nearing an end in the United States.

      1. No need to be so gloomy Ned. Unless you seriously want patents for programs as such, and abstract ideas, as such.

        I cannot imagine the USA being more restrictive on the eligibility of computer-implemented inventions within “the useful arts” and “fields of technology” than elsewhere in the world.

        I’m with MM’s balanced view.

        In the USA there seems to be a tendency to approach any given subject by stating an extreme position, and then debating from there. Perhaps that is what lawyers always do, under an adversarial system?

        As seen from outside, however, these respective rival extreme positions are out of place in a public policy debate. from the outset, they poison, demean and frustrate serious debate.

  10. How long does it typically take the USPTO to give its guidance on McRO? I think this is the first case since Alice that can have a significant impact on USPTO’s 101 analysis of McRO-like claims (of which there are many, currently living in 101 limbo).

      1. Good point Ben. I viewed Bascom as mainly having an impact on litigation, rather than prosecution. Enfish was similar to DDR in that it was “rooted in computer technology.” McRO is different. May be the USPTO was waiting for the McRO decision to provide a cumulative update to its 101 guidance. It will be interesting…

  11. Because the pile of dust keeps getting kicked, here it is again:

    Mayer is not saying that all patents on technological improvements relating to communication run afoul of the First Amendment. The patents which run afoul of the First Amendment are the patents which begin with existing communication technologies, e.g., “the Internet” (or radio, or books, or telephones, or television) and attempt to claim exclusive rights to the types of data (e.g., by reference to the content or meaning of the data) that are communicated via those technologies, or abstract means of accessing the data (“passwords”, “menus”, “subscriptions”, “shove an ad in your face”, etc etc etc). If, come tomorrow, somebody innovates an entirely new way of communicating information called Bribbleplex, the patent system absolutely does not — and should not — be warped around that technology so that 1 million patents a la “wherein said Gribbleplex is configured to display a list of preferred videos” are granted over the next five years. We performed that experiment already. It’s a disaster. And most of the blame for the extent of the disaster — which is ongoing — can be put at the feet of the PTO and the CAFC. The only beneficiaries: patent lawyers, patent tr0lls, and a few clever judges who manipulated their rules to boost the local economy.

    Bottom line: you can’t patent information or knowledge. This limitation on the patent system is not a new idea, as everyone who reads this blog (and others) knows very well. But it is a powerful and correct idea, and it’s one that the Federal Circuit and the Supreme Court have (unfortunately) danced around for a long time, even as many Justices and CAFC judges have intuitively recognized the issue(s).

      1. MM, good paper. While reading it, I was struck by discussion of correlations — that if there was a correlation that owners of iPhone’s were more likely to be high end purchasers that owners of Android phones is a fact, it should not be patentable. That got be to thinking about the “big lie.” For example, “I never had sex with that woman;” or, “None of the emails I sent or receive were marked classified.” The big lie, repeated often, becomes the truth.

        “If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.”

        link to jewishvirtuallibrary.org

        1. How about the big lie that the emails meant anything substantial to the United States? or the big lie that every other high official at the time used private email ? or the big lie that the SoS’s actual business was conducted on an official system? How about the filthy lie that having a cheating spouse lowers one’s own character?

          Lies are in the eyes of the beholder and winners write the history books.

            1. as that may be, I am still writing him in as (even as ineffective as that may be) that is still better than either of the CRP sandwiches on the table.

    1. MM, the Morse systems of marks and spaces actually was composed of physical marks, long and short, written on a moving piece of tape by apparatus caused to move in response to current in telegraph coils. Spaces were gaps discernible between marks on that moving tape.

      I believe the Supreme Court was clear that they were approving of the patenting not only the physical marks and spaces, but essential process for making those marks including, of course the use of machinery to make the marks in response to the telegraph current.

      Anon, and others, still believe that the Supreme Court was authorizing the patenting of the Morse code itself. That was not the case.

          1. No Ned, I am not asking you about the weight of the medium**. I am asking you about the weight of the spaces.

            **you do realize that unless you plan on putting that medium up to near the speed of light, the weight is not going to be affected, right? That is, if I had even asked you about the weight of the medium.

            Further Ned, it appears that the weight of the medium is unascertainable. Any medium might be used, and the scale of distance between marks is not a concern (only the relative distance between marks is a concern).

            Finally, you yourself provided claim 5 of Morse’s, and yet disappeared before you could apologize for your statement that I had the “system of marks” as a language wrong.

            What’s up with that?

          2. Anon, since a space is define by the distance between marks on paper, I am at a lost as to why one cannot compute a weight, or at least, an average weight of a space with particular paper.

      1. And feel free to correct me (as I have not verified), but Ned, was not one of the allowed claims directly to his system (his “language”) as opposed to either the machinery or process of the system?

        1. Anon, “Fifth. I claim as my invention the system of signs, consisting of dots and spaces, and of dots, spaces, and horizontal lines, for numerals, letters, words, or sentences, substantially as herein set forth and illustrated, for telegraphic purposes.”

          1. Ned, you still holding to your prior post of:

            Anon, and others, still believe that the Supreme Court was authorizing the patenting of the Morse code itself. That was not the case.“….?

          2. I’m sorry, anon, I previously quoted the Morse case on this. The dots and spaces, and horizontal lines were physical. The Court also limited the claim to the process of marking.

            “Neither is the substitution of marks and signs, differing from those invented by Professor Morse, any defence to this action. His patent is not for the invention of a new alphabet; but for a combination of powers composed of tangible and intangible elements, described in his specification, by means of which marks or signs may be impressed upon paper at a distance, which can there be read and understood. And if any marks or signs or letters are impressed in that manner by means of a process substantially the same with his invention, or with any particular part of it covered by his patent, and those marks or signs can be read, and thus communicate intelligence, it is an infringement of his patent. The variation in the character of the marks would not protect it, if the marks could be read and understood.”

            1. So If I run out of tape, but perceive the communicated intelligence from the sounds the machine makes as it attempts to mark the tape (that is not loaded), am I infringing?

  12. It seems to me that under the First Amendment rationale, there also cannot be patents on new video cameras or media recorders of any type and any associated recording or transmission apparatus of any kind, since one has a First Amendment right in recording and transmitting speech. This reasoning would prohibit patenting even a new pencil.

    1. Robert, “when they … obstruct the essential channels of scientific, economic, and political discourse…”

      Patenting NEW video cameras, etc., poses no such risk. Patenting the use of any video camera to record and transmit news, social media content, personal communications and the like, does.

      The critical factor, it appears, is that the hardware involved is all totally conventional, and it is used in “essential channels of scientific, economic, and political discourse.” Generally, any patent that purports to cover some method simply of using the internet to convey content, or that controls content, should be suspect.

      1. You need to look at th actual claims as a whole and not some judicial frolic of “Gisted” “directed-to-ness” to play on that playing field, Ned.

      2. Then take anoth look at 35 USC 100(b), as you are STILL not giving full credit to the words of Congress from the Act of 1952.

        1. you are STILL not giving full credit to the words

          Translation: “Interpet the passage as if you are an ins@ne person who was born yesterday. Then you’ll understand my interpretation.”

      3. ” Generally, any patent that purports to cover some method simply of using the internet to convey content, or that controls content, should be suspect.”

        Why? With so many avenues of communication available, why is use of the internet deemed essential?

        People were able to communicate and protest and exercise their free speech rights at least as far back as the 1960’s I think, or did “I have a dream” about that? Now, it’s true that” if you wanna end war and stuff, ya gotta sing with feeling,” but the internet is far from essential.

        ….OMG we’re back to Alice again…. sigh, I guess all roads lead to Rome….

    2. This “rationale” is asinine.

      The real question is what is the CAFC going to do about such a rogue judge that “feels” so ou of touch with law and reality.

    3. KS This reasoning would prohibit patenting even a new pencil.

      What is “this reasoning”? Can you even identify a passage in Mayer’s opinion that outlines the alleged “reasoning” that leads to the result that you find so shocking?

      1. If a new virus filter “ha[s] the potential to disrupt, or even derail, large swaths of online communication,” and therefore is unpatentable under the First Amendment, then anything broadly related to communication is unpatentable simply by virtue of the fact that it relates to communication, and communication relates to speech, a constitutionally protected right. As I can’t make sense of this thinking, I can only deem it sloppy. Just because I invent a new pencil–even if it is the greatest pencil ever and it is instantly adopted by everyone as the only way to write–does not mean I have infringed on the free speech rights of persons under the Constitution. Technology in the public domain is still available for expressive purposes. Fortunately this concurrence is of even less value than obiter dicta and will quickly and deservedly fall into obscurity.

        1. If you think I’ve missed “the argument,” would you mind spelling it out for me then? Because the concurrence sure doesn’t.

            1. No. I just wanted to confirm that Malcolm in fact could not explain the concurrence. All he’s got are a bunch of ad hominems. “Troll” this and “kiddie pool” that do not explain how a patent on a virus filter inhibits free speech and violates particularized First Amendment rights.

          1. Mayer’s argument is straightforward. If you can’t follow it, then consider finding another blog to tr0ll.

            As for your “problems”, suffice it to say that (1) nobody is saying that “a new virus filter” presents a First Amendment problem and (2) if you can’t tell the difference between a patent claim and an object falling within the scope of the patent claim, then you really need to stay in the kiddie end of the pool.

            1. Aside from the “kiddie pool” comment, what IS the difference between a patent claim and “an object falling within the scope of the claim” when it comes to the different sections of law?

              You seem to want to operate under some unstated thinking – a thinking that you “feel” should be so well known as to not need an explanation (or apparently even the asking for clarification merits only disdain and no answers).

              Maybe if you explained your feelings and tied them back to actual law, your opinion here Malcolm may be taken seriously as something worth exploring.

              As it is, your disdain without more just does not cut it.

  13. All the predictable dust being kicked up here by folks pretending to have been born yesterday:

    I wrote this: ‘Abstract “manufactures” (e.g., stuff that people write) aren’t eligible for patenting for all kinds of great reasons.’

    and “A Nony Mouse” responds with this:

    That’s why we recite that the abstract is in a machine, i.e., a computer or computer memory. You still give weight to the code/data structure/etc., however, because it provides FUNCTION.

    But everybody can see that you’ve done nothing but move the goalpost. New writing in an old book provides new functionality to the book. So what? The book with the new writing isn’t eligible for patenting. Why should a computer with new data in it’s memory be eligible for patenting? (please go ahead and argue that it isn’t, if you like).

    You guys whine and cry about “nobody knows what abstract means” and then you scurry into a corner and wave your flag of FUNCTION (love the capitalization! so persuasive) as if that’s soooooo much more clear.

    All information has some “function”, in some context. That doesn’t make it eligible. And it’s never been the case that reciting some old technology (a book, a a radio, a TV, a display hooked up to a computer) that presents the information changes the bottom line. No court has ever held anything remotely like that. What’s happened instead is dust kicking and goalpost moving and avoidance of the issue. And then when a judge plants the issue in front of your face, squarely, you guys cry like little babies.

    We can all see you! You realize that, don’t you? Grow up and come up with a decent argument or a workable test if you think there is one for protecting “logic on a computer”. Stamping your feet and screeching “It’s a process” or “it’s a manufacture” or “it has a function” are non-starters.

    1. Again, Malcolm retreats to the canard of Non-Useful Arts.

      Your “book” example is wrong even before you begin.

      And again, you know this with your volunteered admission of knowing and understanding the exceptions to the judicial doctrine of printed matter.

      But of course, please pretend that you didn’t cry repeatedly when I merely provided a hyperlink to the Hricik side of the blog for my simple set theory explication, and then completely ran away when I reposted that explication instead of just providing the hyperlink.

      No one will know that you are just dissembling again.

      😉 😉

      (worth a double winky emoticon)

      1. Your “book” example is wrong even before you begin.

        He’s s00per serious, f0lks! A real powerhouse of a mind.

        my simple set theory explication

        So simple that it’s virtually impossible for “anon” to articulate it for everyone ever again! Yup. He’s a real Einstein.

        1. I have aeticulated it several times – with hyperlinks, and when you whined about that, I reposted the entire explication on this side of the blog.

          Maybe you should pay attention the first several dozen times instead of wanting everything redone (in order to catch some error in the re-telling).

          1. Funny Malcolm, how you want to clamor about “always” when it is clear with just this single item that your “version” of “always” is more like “never.”

  14. This caught my eye:

    “describing a study which “found that between 2007 and 2011, 46 percent of patent lawsuits involved software patents…”

    eBay was about a business method patent.

    Claim 8:

    “a transaction processor operably connected to said wide area communication network and said storage device, said transaction processor adapted to receive a purchase request and payment means from said participant, clear said purchase request and payment means and if said payment means clears then transfer the ownership of said good for sale by modifying said data record of said good for sale to reflect the new ownership of said good for sale by said participant.”

    A major reason the district court did not issue the injunction because of the of this fact:

    “In its post-trial order, the district court stated that the public interest favors denial of a permanent injunction in view of “a growing concern over the issuance of business-method patents, which forced the PTO to implement a second level review policy and cause legislation to be introduced in Congress to eliminate the presumption of validity for such patents.” A general concern regarding business-method patents, however, is not the type of important public need that justifies the unusual step of denying injunctive relief.”

    401 F. 3d 1323 at 1339

    While not universally the case, the so-called “troll” problem seems highly related to business method patents that are sometimes euphemistically stated to be software patents. It cannot be denied that these kind of patents have all but wrecked the patent system because of the reaction they have caused, including eBay.

    While I share Mayer’s concerns about software patents, I also write to condemn In re Donaldson, a case that allowed one to functionally claim an invention, under the theory that 112(f) applied. But in practice, with software claims, there is no there there. What one gets in claim is what one gets in the spec. With circuits and the like, at lest we get a detailed circuit. With software, we do not get a detailed program, but essentially no more than what is in the claim. In the end, such patents do no more than claim a result. And, any business that does the method, infringes, regardless of the software, regardless of the hardware.

    1. modifying said data record of said good for sale to reflect the new ownership

      Nothing “metaphysical” about this!

      “Ownership” is totally physical,, exactly like a molecule or a mousetrap.

      Pontificator said so! And he’s, like, totally skilled in the art of writing instructions for computers so he would know. Logic gates! Logic gates!

      LOL What a farce.

    2. Clearly the quote you present was made in error, Ned.

      Can you tell me where in the real law there was the change in the presumption of validity?

      (Never mind our usual discussion point that you always run away from – that if business method patents were actually outside the statutory categories, there would be no need for Congress to do what it actually did do and create a limited defense)

      1. anon, the Bilski 5 were confused about what congress did. Still, while they did not categorically denounce business methods, they called the business method in the case before them, “abstract;” then they called claims to abstract ideas categorically excluded. You do the logic.

          1. As for “confusion,” we’ve gone over the fact that Stevens’ minority view would have explicitly negated the direct words of Congress.

            Another bit of your selectively “convenient” memory, Ned…

        1. Your version of “logic” was destroyed after the next Supreme Court case threw out a Medical Method (and you refused to apply your own overreaching – and quite frankly odd, Windmill driven – “logic” to reach the same view about medical methods overall.

          I have long attempted to get you to accept the conclusion of your very own logic, but any time that we got close to that point, you ran away (only to attempt your internet style shout down on another thread by ig noring the counter points presented to you).

          Will this time be any different? Will you even attempt to be inte11ectuallly honest here?

          1. Your version of “logic” was destroyed after the next Supreme Court case threw out a Medical Method

            The “method” in question was (1) using old technique to obtain data and (2) thinking a new thought about what the data means. That claim protects an abstraction (i.e., the ineligible knowledge about the meaning of the data). Limiting that protection to a prior art context doesn’t cure the infirmity.

            Nothing in Bilski was inconsistent with this.

    3. Ned,

      If methods are patent eligible (which they unquestionably are), is there a reason that they should automatically lose eligibility if they are performed by a processor?

      If Mayer is going to argue that any method performed utilizing conventional computer components is abstract, then couldn’t this be extended to argue that any method performed utilizing conventional components is abstract? Isn’t this argument reducible to absurdity?

      I obviously don’t have any insight into your specific concerns, but most of Mayer’s concerns seem to be focused on sufficiency of disclosure (of which I am much more sympathetic), but isn’t this better treated under 112? I still have seen very little discussion of why 103 and 112 can’t handle most of the “junk” software patents people are sure should be invalid. The reality is that it’s just easier to invalidate them under 101, so that’s what’s happening. Never mind that the judicial exception has been expanded to the point where it seems to clearly represent legislating from the bench.

      J

  15. Is Judge Mayer the only one in the Federal Circuit who thinks software should not be patentable or are there others too? What about the SCOTUS? I think Alice, Enfish, and MCRO have struck a good balance. No need to go crazy… the problem is under control.

    1. I think Alice, Enfish, and MCRO have struck a good balance.

      It’s not clear why you think that. McRo‘s “do it on a computer rules are eligible unless complete pre-emption” “test” contradicts Alice and, more importantly, Mayo. That’s one of the reasons that McRo was shunted into a worthless f00tnote by the majority here.

      1. MM: ” That’s one of the reasons that McRo was shunted into a worthless f00tnote by the majority here.” I think that’s the second time you’ve made that statement on this forum.

        That footnote, (at the bottom of page 8 of the opinion) highlighted the exact opposite of your assertion. It is underscoring the existence and validity of patents that are non-abstract.

        The footnote illustrates a “wide variety of well-known and other activities constitute abstract ideas, which are not patentable.” In contrast, they offered McRo as a counter example of a non-fundamental practice.

        It’s form was “see eg. Bilski, Alice, TLI, …… (etc etc)” as long list of invalid patents which were “fundamental . . .practice[s] long prevalent”. Then, as a counterpoint, to “see also” McRo, to illustrate something NOT a “fundamental practice”, and therefore “held not to be directed to ineligible subject matter”.

        Perhaps you think that the reference to the McRo opinion is “worthless” simply because it appears as a footnote. By that logic, the other opinions and outcomes referenced in that footnote (Bilski, Alice, TLI, Ultramercial, etc etc) fall into that “worthless” category as well, as I’m sure you’d agree.

        1. That footnote, (at the bottom of page 8 of the opinion) highlighted the exact opposite of your assertion

          No, it’s not. McRo was cited only to support the proposition that the courts have addressed the issue of claiming abstract subject matter in the past. Big whup.

          The actual holding of McRo wasn’t relied on or even given lip service by the majority. And it’s a sweeping holding if you take it seriously. This panel plainly doesn’t take it seriously and I’m sure it’s not the only panel that feels that way.

          1. Your counter point is not persuasive. They did not have to use the case at all in the footnote – using it does have meaning and more than that which you are willing to begrudge it.

  16. Pontificator: Patents concern human activity, not metaphysical boundaries.

    LOL

    So says the guy who thinks he should be able to patent unknown configurations of “logic gates” by reciting their functions. But there’s nothing “metaphysical” about any of this! Nope.

    What’s the structural difference between data comprising “video content” and data comprising “music content” from the perspective of a digital computer? Or between “ad content” and “non ad content”. Tell everyone. After all, you’re a s00per serious person and you’re all about the technology. There’s nothing remotely “metaphysical” about this. Sure there isn’t. So tell everybody about the physical distinctions.

    1. Hi, I’m Malcolm Mooney. What I have to say is SO important I can’t bear to think you might miss it, so instead of showing my message as a reply in a thread of comment (like everyone else), I am putting this reply-comment here at the top so NO ONE will miss it. No need to thank me, just doing a public service.

      You’re not just a gadflye, you’re a gadflye who insists on shouting the loudest and being the center of attention.

      As to the video/music question, that’s what dictionaries are for. And what exactly is the “perspective of a digital computer”? Computers are machines, I believe, and therefore do not have any perspective. Incidentally, claims are written to be read by human beings, not computers, so the question (if it even makes sense) is purely academic. In my field, the question we ask every day is “what meaning would this have to human being of ordinary skill in the art?”.

      1. …and let’s pretend (even after being corrected) that one optional claim format is somehow more than merely optional, and demand as infinitum and ad nauseum that ALL claims be written in an optional format.

        Just because he feels that way.

        1. Remember, f0lks, this is the same guy who “feels” that you can claim a new property plus some old technology because “point of novelty is a canard”. So give him your money! He’ll run to the bank with it. And then he’ll ask for some more money when it comes time to appeal to the PTAB. And then he’ll ask for some more money when it comes time to appeal to the CAFC. And then he’ll ask for some more money when it comes time to appeal to the Supreme Court.

          And then when he gets hammered he’ll cry on a patent blog for the next twenty years. But he’s a very serious person! We all have to pay attention to him and his wonderful “options.”

              1. The cases are real and the scoreboard is really broken.

                Maybe you want to do more than just identify with the Ends that you like and engage in a dialogue about the means to those ends and the broken scoreboard…?

      2. Computers are machines, I believe, and therefore do not have any perspective.

        But he’s not being pedantic, f0lks, and refusing to address the issue. Nope.

        And. remember: there’s nothing “metaphysical” about any of this! Pontificator told us so.

        claims are written to be read by human beings, not computers

        That’s nice.

        the question (if it even makes sense) is purely academic

        Because Pontificator says so! Yes, let’s not discuss any of this. If only MM would go away and stop asking questions, patent law wouldn’t have all these problems.

        LOL

        It’s okay, Pontificator. I know the question is a troubling one for you and your c0horts. That’s why I asked it. And I’m going to keep on asking it. And more and more defendants are going to ask it, and more and more judges are going to ask it and eventually the ridiculous foundation upon which your house of cards is built is going to crumble completely. You’ve noticed that it’s taken a serious beating these past few years, haven’t you? Do you know why?

        I know why: it’s because people have been asking the right questions and instead of answering them you attack the messenger and run away. Boo hoo hoo.

        As to the video/music question, that’s what dictionaries are for

        The answer to the question I asked isn’t in the dictionary, Pontificator. We all know that.

        1. A
          O
          O
          T
          W
          M
          D

          We have had the conversation MANY times previously about machines not being human and thus not being afforded any of the protections of the “mental steps” doctrine – there is nothing at all pedantic about making that point again.

          Maybe you did not recognize it since my coined word was not used.

          Here, let me share it with you:

          anthropomorphication

          Machines really do not think.

          You may want to pretend that you are confused with words merely sounding in human mental activities, or you might be attempting to be duplicitous, but please, calling the other side “pedantic” when machines really do not think is a bit over the top, eh?

          1. We have had the conversation MANY times previously about machines not being human

            That’s a “conversation” you’ve had with yourself, “anon.”

            machines not being human

            Except that the whole point of these particular machines is that they follow instructions written by … wait for it! … humans. And then they are claimed based on what they “determine” using rules written by …. humans. And then they are referred to ubiquitously as “the brains” of the machine they are incorporated into. And they have “intelligence” … just like a human. But it’s all just a coincidence!

            thus not being afforded any of the protections of the “mental steps” doctrine

            Protections?

            And what’s so special about “mental steps” anyway, “anon”? Tell everyone. After all, mental steps are just “processes.” And therefore eligible because … statute. Right? Go ahead and explain this to everyone. Explain why there is a “mental steps” doctrine in the first place, and explain who came up with it.

            After all, you’re the expert (in your own mind anyway). So go ahead and teach everybody. Surprise us all.

    1. Both our cases are “relisted” for October 7. If Certpool is up to date, our two are among only six from all circuits that were relisted. Scotusblog has a nice posting from a year ago about what this means statistically.

  17. This is EXACTLY the type of statement we need the Supreme Court to make: “claims directed to software implemented on a generic computer are categorically not eligible for patent”. Why? Because then Congress can overrule them.

    The way it is now, no one understands what an “abstract idea” is or what is “significantly more than the abstract idea”, so Congress can’t overrule what it does not understand.

    By the way, what is a “generic computer” anyway? Tesla downloaded updates to their cars that allowed them to park themselves, retrieve themselves from a parking lot, and drive themselves. Is an engine control unit (or whatever Tesla calls their processor) a “generic computer”?

    What about a base station for cellular systems, is that a “generic computer”?

    1. what is a “generic computer” anyway

      A pre-existing programmable computer, in any context that is not structurally distinguished and non-obvious with respect the prior art.

      Is an engine control unit (or whatever Tesla calls their processor) a “generic computer”?

      See above.

      What about a base station for cellular systems, is that a “generic computer”

      See above.

      The way it is now, no one understands what an “abstract idea” is

      Yawn. Just because you’re confused, doesn’t mean everyone else is.

      This is EXACTLY the type of statement we need the Supreme Court to make: “claims directed to software implemented on a generic computer are categorically not eligible for patent”. Why? Because then Congress can overrule them.

      What makes you think Congress will do that?

      1. “Not structurally distinguished”

        And Malcolm (again) returns to his canard and attempt to make one optional form of formatting a claim somehow be MORE than just a mere option, and instead be an actual legal requirement.

        If you are an attorney, you would recognize that what you are attempting to do is unethical. Please stop misstating the law in order to further what you merely feel should be the law.

        1. what you are attempting to do is unethical.

          So says the guy who advocated using mailroom staff to screen letters that might disclose prior art.

          But he’s a s00per serious person, f0lks! He’s all about the “ethics” of answering a question on a blog about the definition of a “generic comp00ter”! S00per serious stuff!

          1. Lol – teaching back to your mischaracterization of that ethical discussion in no way makes your present knowing mischaracterizations of law any LESS unethical.

            Maybe you want to look at your own behavior and correct what you are doing?

            Just a thought.

    2. Is it still a “generic computer” after having been changed and having new capabilities added with the configuration of additional software?

      The patent doctrine missing here is the Inherency Doctrine.

      If [Old Box] without ANY additional changes whatsoever already inherently has the new capabilities, them the capabilities are not new and there is no change necessary to [Old Box] to HAVE the capability being evaluated.

      But as readily shown by the age-old example here of the Grand Hall experiment, those merely wanting [Old Box] to somehow have “already in there” ALL future improvements that could come by way of the manufacture of software violate the Morse case.

      All future improvements by way of reconfigured machines are NOT “already in there.”

      1. Is it still a “generic computer” after having been changed and having new capabilities added with the configuration of additional software?

        “Is it still a generic book after having been changed and having new capabiliites added with the configuration of additional recipes?”

        Gee, I don’t know. This is s00per difficult stuff! Maybe Dennis should ask one of his kids again.

        Or maybe you should learn to ask a question without the answer already built in.

        the configuration

        Go ahead and claim “the configuration”, then. Claim it in structural terms like everybody else does. Or keep crying like a little baby as your house of cards collapses. Your choice.

        1. Lol – try again with an example within the Useful Arts – your “book” example fails and you already know that.

          But hey, is anyone really expecting Malcolm to not try to dissemble and to actually have an inte11ectually honest discussion?

          1. try again with an example within the Useful Arts – your “book” example fails and you already know that.

            A book with, e.g., a new structurally distinguished binding, isn’t within “the useful arts”?

            Really?

            And are you reading the book manufacture out of the claim? What happened to “claims as a whole”? That doesn’t apply to 101?

            You’re a very serious person! I’m sure you thought about this a lot.

      2. The patent doctrine missing here is the Inherency Doctrine.

        But you can’t re-claim an old box, or any other old composition, just by reciting some new functionality or some new property. You need to recite the structure responsible for that property that distinguishes your new composition from the prior art. You can do that directly or indirectly but you can’t wave your hands and just recite the new function. That’s fundamental patent law.

        But maybe you want some very special exception cooked up just for you by some activist judges? Because you’re s00per d00per important? Because you need to be coddled? You want a special exception just for you, cooked up by some activist judges? Surely you don’t want that, Mr. “Rule of Law.”

        1. you must recite the structure

          There you go again pretending that one optional claim form is somehow not what it is: optional.

          Why do you have such a great difficulty with this very easy to understand concept of what it means to be optional?

          Are your “Feelings” simply too invested in your mantra?

          1. If you have a new property, then you don’t have [Old Box],

            If you have a new property but you can’t identity and describe the new structure responsible for the property, Billy, then you don’t have a patentable innovation. “Properties” aren’t eligible subject matter.

            Someday you’ll get it (just kidding — you aren’t smart enough).

            1. Wrong – the description can be done in several optional manners.

              You have “confused yourself” as to what the inherency doctrine actually is.

              (Yes, with quotation marks, because we both know that you are merely trying to dissemble on this point)

              1. Okay, Professor McPatentquack, let’s say I synthesize a new molecule. I don’t know anything about it except that it glows red when you play Beethoven nearby.

                Tell everyone exactly what my “several” options are for claiming my new molecule. I want an enforceable claim so don’t take my money and waste it, mkay?

                Next question: I have the structure. It’s identical to a previous molecule except one of its 532 atoms is a chlorine instead of a bromine.

                Tell everyone exactly what my “several” options are for claiming my new molecule. And don’t waste my money.

                This should be easy for you. You’re the expert, after all!

  18. Possible First Amendment limitations on Patent law’s patent subject matter eligibility (Section 101) has not been directly addressed by the Supreme Court. In the copyright law area the Court has outlined the grounds for why there is no distinct or separate First Amendment limitation to the scope of the copyright owner’s exclusive rights; the Constitutional limits addressing First Amendment concerns are addressed so the Court in the fair use doctrine and idea-expression dichotomy. It is interesting that in Patent law, similar Constitutional limits have not been discussed by the Court in the context of the First Amendment. However, there are several implicit common law doctrines in patent law which balance the interest of the under the federal statute created exclusive rights of the patentees on the one hand, and effectuating of the Constitutional purpose with the passage of the Patent statute, the right of the public, the interest of competitors in the marketplace, and public domain principle, on the other, that could be the basis for First Amendment limitations to the Patent Act. Very interesting.

    1. J: It is interesting that in Patent law, similar Constitutional limits have not been discussed by the Court in the context of the First Amendment. However, there are several implicit common law doctrines in patent law

      And — as has been noted by myself and many others — Supreme Court cases like Mayo implicitly recognize the ineligibility of claims that protect information in pre-existing technological contexts (also known claims that recite information at “point of novelty”).

      This isn’t a new way of thinking about this. We’ve been discussing the issue here for years. What’s new is that a CAFC judge put it out there. Kudos to Mayer.

      Also, the connection between the idea/expression dichotomy in copyright and the existing (if not explicitly recognized) knowledge/embodiment dichotomy in patent law has been discussed in detail by Collins (at least — I’m sure there are other good discussions of the topic; please share!). I provided the link below in comment 19.

        1. Point of novelty in the 101 sense is a canard.

          Are there any intelligent defenders of s0ftware junk out there? Or is this kind of nonsense all we get?

            1. the nonsense of Point of Novelty in a 101 sense

              Because Alice and Mayo weren’t about ineligible subject matter at the point of novelty. Because your beloved
              printed matter doctrine isn’t about ineligible subject matter at the point of novelty.

              He’s a s00per serious person, f0lks! We all have to pay attention to him.

  19. First Amendment Finally Reaches Patent Law

    I can never be sure when Dennis is j0king or not, but the First Amendment has always reached patent law. What’s interesting about the concurrence is that Mayer doesn’t try to bury that understanding under some other judge-made doctrine (e.g., “printed matter”). As has been noted by others, the CAFC has been tiptoe-ing around this for quite a while, apparently recognizing that an honest dicussion might upset some of its … “customers”.

    Kudos again to Mayer for opening the window and letting some air into the room.

    1. Never mind that that air is nothing but a hot fetid mixture of downwind air from a paper mill over the cattle processing plant and over the manure and waste water holding bins…

      (I suppose that would still be considered “fresh” by Malcolm)

  20. Re (1) patents constricting the essential channels of online communication run afoul of the First Amendment

    Just so there’s no confusion about this (and, as predicted, there are numerous attempts to create confusion already), Mayer is not saying that all patents on technological improvements relating to communication run afoul of the First Amendment. The patents which run afoul of the First Amendment are the patents which begin with existing communication technologies, e.g., “the Internet” (or radio, or books, or telephones, or television) and attempt to claim exclusive rights to the types of data (e.g., by reference to the content or meaning of the data) that are communicated via those technologies, or abstract means of accessing the data (“passwords”, “menus”, “subscriptions”, “shove an ad in your face”, etc etc etc). If, come tomorrow, somebody innovates an entirely new way of communicating information called Bribbleplex, the patent system absolutely does not — and should not — be warped around that technology so that 1 million patents a la “wherein said Gribbleplex is configured to display a list of preferred videos” are granted over the next five years. We performed that experiment already. It’s a disaster. And most of the blame for the extent of the disaster — which is ongoing — can be put at the feet of the PTO and the CAFC. The only beneficiaries: patent lawyers, patent tr0lls, and a few clever judges who manipulated their rules to boost the local economy.

    Bottom line: you can’t patent information or knowledge. This limitation on the patent system is not a new idea, as everyone who reads this blog (and others) knows very well. But it is a powerful and correct idea, and it’s one that the Federal Circuit and the Supreme Court have (unfortunately) danced around for a long time, even as many Justices and CAFC judges have intuitively recognized the issue(s).

  21. RG: In instances where the claim is directed to particular acts which concretely improve the computer-qua-computer, the subject matter is eligible.

    What’s the “subject matter”? The acts that “concretely” improve the computer (i.e., the ineligible instructions), or the computer that’s been “modified” by “the acts” (but is apparently incapable of being claimed structurally like every other eligible device in the history of the patent system)?

  22. Or anything made using a test tube is not patent eligible, etc.

    So, J. Mayer, I take the software and make a special purpose chip to implement the information processing method. Now under your reasoning it is patent eligible and yet equivalent to something that is not patent eligible.

    1. One only has to approach – in an inte11ectually honest manner – the following facts:

      Software is (in the patent sense) equivalent (note for the muckrakers, this does NOT mean “exactly the same as”) to hardware and is equivalent to firmware.

      Software is a manufacture built by the hand of man for a specific utility (and that utility is almost always within the Useful Arts), and is a machine component (show me someone who thinks that he has “software” not meant to be a machine component, and I will show you someone who does not understand what software is).

      Any inte11ectually honest discussion starts with the acceptance of these basic foundations of understanding.

      1. Any inte11ectually honest discussion starts with the acceptance of these basic foundations of understanding.

        LOLOLOLOLOLOLOLOLOL

        He’s a very serious person, folks.

          1. There’s no “tell”, “anon.”

            We know you’re a s00per serious person because only s00per serious people discuss topics like you do, i.e., put forth a conclusory statement regarding the subject of the controversy and then accuse everyone who doesn’t accept it as intellectually dishonest. That’s s00per d00per serious!

            And to make it even more s00per serious, you include stuff like this:

            Software is (in the patent sense) equivalent (note for the muckrakers, this does NOT mean “exactly the same as”) to hardware and is equivalent to firmware.

            which is a meaningless word salad. S00per d00per serious! But we all have to pay attention to you.

            1. Your very own “discussion” has already been highlighted.

              But hey, continue to post your feelings and pretend otherwise, while accusing others of doing that which you do.

              It’s so “fresh.”

                1. Lol – great that you are noticing that the scoreboard is broken and the fact that we talking about the scoreboard being broken.

                2. (and NEED I remind you of your very own admission with THIS case…? Along the lines that you want this concurrence to someday be the law, rather than it currently being the law…?)

                  Oopsie for you.

                  (but then again, that might require you to post with some level of inte11ectual honesty – as shocking as that concept may be for you)

                3. you are noticing that the scoreboard is broken

                  Anybody know what the resident hallucinator is talking about now?

        1. MM, I happen to agree that software is a manufacture (albeit abstract) built by the hand of man for a specific utility, and is a machine component. B/f going to law school I wrote nearly a half-million lines of code. It didn’t write itself.

          1. I wrote nearly a half-million lines of code. It didn’t write itself.

            That’s nice. Nobody is asserting or even suggesting otherwise.

            software is a manufacture (albeit abstract)

            Abstract “manufactures” (e.g., stuff that people write) aren’t eligible for patenting for all kinds of great reasons.

            software is … a machine component

            Albeit an “abstract” “component” that you can send through the ether using sound waves. I’m sure “anon” will agree with you on the “abstract” part which is — by the way — the entire point of contention here.

            1. …and yet, a different aspect of the very same thing obtains copyright protection (and you cannot copyright something that is abstract).

              “Go figure Folks”

              How something can be changed and transmitted is rather a non-sequitur to the thing itself.

              Software is not the thought of software. Let me know when someone creates that initial manufacture TOTALLY in the mind, ok Malcolm?

                1. I am poking the Tr011 in the eye with a fork (and enjoying it).

                  I am not feeding him.

                  In case you missed it, every time he responds, he only looks sillier and sillier.

                  It’s hilarious.

            2. ‘Abstract “manufactures” (e.g., stuff that people write) aren’t eligible for patenting for all kinds of great reasons.’

              That’s why we recite that the abstract is in a machine, i.e., a computer or computer memory. You still give weight to the code/data structure/etc., however, because it provides FUNCTION.

              That said, I don’t know who you are – just that you’re an irritating person of low intelligence

      2. “(show me someone who thinks that he has “software” not meant to be a machine component, and I will show you someone who does not understand what software is)”

        I wrote software for 45 years. I started by writing operating systems (the software layer closest to the hardware) for IBM. No software is meant to be a machine component. I also so argued in an amicus curiae I submitted to Judge Mayer et al in Alice.

        ——————————–
        Steve Stites

  23. Mike The problem is that as a society we are moving most, if not all, of our innovations to the virtual/online realm.

    LOL Really? What’s your evidence for that? I hope your answer isn’t “patent filings.”

    The law is just not catching up to the direction of innovation.

    Oh, it’s way worse than that. As it concerns the patenting of logic executed on a computer, the law is about forty years behind. And it’s never going to “catch up” because “new logic” is the easiest thing in the world to scriven into our jacked up system.

    And of course you realize that Judge Mayer made this point for you already.

    Seriously, crybabies, there is no restart. There is no going back. Mayo is forever. And everything Mayer is saying is perfectly consonant with the reasoning that went into Mayo and the reasoning that came out. It also makes a zillion times more sense than “algorithms are structures when the CAFC say so” which is why, at the end of the day, Mayer’s position is the correct position. The end of the farce that is s0ftware patenting may happen quickly, or it may happen in herkyj e rk fashion as has been the case for some time. But the curtain is closing, and it’s going to keep closing because it has to.

    In the meantime, try coming up with some decent arguments, at least. Or educate yourselves a bit more. Check out some of Collins’ writings on the “knowledge/embodiment” dichotomy. It’s good stuff and more or less in line with what Mayer is saying, and what I (and others) have been writing here for years.

    link to papers.ssrn.com

    The knowledge/embodiment dichotomy does not exist de dicto in contemporary patent opinions, treatises, or scholarship. However, it does already exist in a rough form as a de facto limit on the reach of patent protection. That is, courts’ and commentators’ failure to acknowledge the dichotomy has been a conceptual failure, not a failure to curb the reach of patent rights. Contemporary patent law provides de facto enforcement of the dichotomy without de dicto recognition through two distinct mechanisms. First, prohibitions on the patenting of mental processes and printed matter provide indirect, fragmentary enforcement of the dichotomy. Second, in the gaps between these fragments, the courts and the PTO improvise.

    1. I fear your view of the near future may be a bit optimistic, MM. When Judge Mayer took senior status, his position was filled by Judge Reyna . . . author of the disappointing MCRO decision.

      Maybe the eventual appointment of a ninth jurist will bear more reason for optimism.

      1. When Judge Mayer took senior status, his position was filled by Judge Reyna . . . author of the disappointing MCRO decision.

        As I noted in other thread, one interesting aspect of the majority’s opinion in this case is that McRo was relegated to the status of a w0rthless f00tnote and the equally poorly reasoned BASCOM decision was swept aside with a handswat.

  24. Judge Mayer forgets the role of a judge: to judge the matter before him or her, not to judge the law itself. Judge Mayer just needs to apply the law to the facts. If a certain type of subject matter should be exempted from being ownable by its creators, then that is for Congress to decide. The benefits and detriments of patents are difficult to quantify. The complex calculus of public policy is properly left to the body that has the power to gather facts and the opportunity to deliberate over those facts with the public.

    “(1) patents constricting the essential channels of online communication run afoul of the First Amendment.” Poor Mr. Morse; no telegraph patent for YOU! By what standard would Mayer decide which patents that can bear on communication are blocks to free speech? A new antenna? An improved battery that lets a mobile phone run longer? A new encoding algorithm that reduces noise and signal loss? This argument confuses the means of speech with speech itself. Heck, display panels display speech, so no patents for display panels.

    “Yet another intractable problem with software patents is their sheer number.” By what criteria is the decision arrived at? At what number does “volume” become “too much”? Where in the patent statutes does it so specify? Perhaps the judge doesn’t understand that the very software the judge would deny ownership of also enables highly efficient searching of prior art. A client of mine regularly nixes patents before filing because their own art searches find blocking art. Volume is not a problem. Failing to effectively search for prior art, however, is a problem.

    As to the arguments that something is not new, such as the claims that were held ineligible, the patent statutes already take care of that. The real question is: why were claims directed to something old allowed to begin with?

    I’m actually embarrassed for Judge Mayer. To say that the software industry arose without patents is faulty reasoning. The question is not what happened with or without patents, the question is, would the public have been better or worse off? Anyone involved in the software industry knows that patents are an important protection for many small and new firms. Patents, as in all industries, impede the actions of some firms. They also incentive the actions of other firms. Where that balance of give and take falls is the realm of the legislature, not un-elected Federal judges.

    And this one of Mayer’s arguments contradict another. On the one hand, patents are useless and the industry doesn’t need them, but on the other hand, the software industry invests billions in “sheer volume” of something that is useless? Why would the industry invest in “sheer volume” of something without benefit? It makes no sense.

    “Software is a form of language—in essence, a set of instructions.” A bizarre statement. Software configures actual logic gates to take a certain set of signal inputs and transform them to generated a certain set of output signals. A computer language is not a set of instructions. A language just a set of conventions or rules for mapping high-level descriptions of actions of a computer to low-level gate configurations that carry out those actions. A software engineer follows some language to write source code, the source code is translated into machine instructions, and the machine instructions in turn are interpreted by a processor to change the states of gates. The high-level source code is a convenient and efficient way of describing what the gates should do. So code, and code-like English constructs (pseud-code, patent claims), are a way software engineers describe how they are configuring computers. The fact that there are formal languages for doing this is beside the point. There are formal languages for describing many things; is not chemistry notation a language that describes physical chemical reactions etc.? Is not a mouse trap described by the English language with language constructs such as “springs”, and “bodies”, and “triggers”, etc.? Software is no different.

    The issue about vague/overbroad claims is a legitimate one, but the answer is proper examination, not a subject-matter bar. Overbroad claims – in all fields – are easily shown to be anticipated or obvious. Vague claims can be squashed with section 112. To say that software claims are inherently overbroad or vague is like saying computer scientists are not able to communicate with each other about what they are doing — an absurd notion. The test is not what a software claim means to a judge. The test is what a software claim means to a software engineer. A software engineer with proper training can write a software claim that has clear and specific meaning to another software engineer. The words of that claim might have very specific meaning to software engineers, even if it appears “vague” or functional to a judge. In fact, when I submit a draft claim to an engineer for review, I instruct the engineer to make sure that they can understand the claim on its own … that its meaning is clear.

    “Fourth, and most fundamentally, generically-implemented software invariably lacks the concrete borders the patent law demands.” Odd, because software claims regularly are litigated and found to meet all of the standards of patentability. Governments around the world have accepted and adopted software patents, even though they are invariably lacking “concrete borders”??? Judge Mayer is basically expressing an opinion that the patent laws are wrong. I mean, there _is_ a legal standard for clarity and definiteness of meaning. Why doesn’t Mayer address the much more difficult issue of why supposedly indefinite claims are being issued and successfully enforced?

    I respect Judge Mayer’s views, but they should be presented through law journals and Congressional avenues rather than judicial decisions.

    1. One of the claims upheld for Morse (iirc) WAS his telegraph “form of language.”

      The rest of the CAFC should ask that Judge Mayer step down for such embarrassing drivel. Clearly, he lacks the proper rationality to sit and actually judge innovation.

          1. I don’t think that Judge Mayer’s opinion excludes patents on cell phones. I do think that his opinion excludes patents of cell phone software.

            —————————-
            Steve Stites

            1. What exactly is the difference between millions of logic gates configured to do invention “X”, where the gates are not reconfigurable (e.g., an ASIC), and millions of gates similarly configured to do invention “X”, but where the gates reconfigurable (e.g., a CPU)? If the only difference is reconfigurability, why is that significant to patentability? Why should one be patentable, and the other not, even though they are functionally equivalent with respect to the inventive gate configuration?

              A proper “software” claim is not a claim to an abstract formula. It’s a high level engineer-to-engineer description of what a large number of physical logic gates are collectively doing.

              1. H, the key is here: “to do invention “X.”

                Software does not do anything that is patentable.

                A programmed computer in a conventional process or larger machine may be part of claim that is eligible.

                But, you say, “If this were a circuit…”

                Well, one cannot claim a circuit to do X. One can only claim the circuit itself. If one attempts to claim a circuit that does X, the claim is either invalid or treated under 112(f) where the claim ends up covering the circuit, not what it does.

                Now with software, the claim “to do X” has no corresponding structure at all. The program itself is never set forth. Flow diagrams are effectively the same thing as the claim. There is no there, there. Thus all software claims are per se invalid. I fully agree with Mayer.

                However, once again, a programmed computer in a larger context can present patentable subject matter. I give you Alappat as the principal example.

        1. H, claim 5?

          This from Morse:

          “Neither is the substitution of marks and signs, differing from those invented by Professor Morse, any defence to this action. His patent is not for the invention of a new alphabet; but for a combination of powers composed of tangible and intangible elements, described in his specification, by means of which marks or signs may be impressed upon paper at a distance, which can there be read and understood. And if any marks or signs or letters are impressed in that manner by means of a process substantially the same with his invention, or with any particular part of it covered by his patent, and those marks or signs can be read, and thus communicate intelligence, it is an infringement of his patent. The variation in the character of the marks would not protect it, if the marks could be read and understood.”

          Physical marks.

          On paper.

          Made by the process disclosed.

          Let me suggest that nothing Mayer says implicates Morse claim 5 because the claim was not to an alphabet, but to a system of marks and spaces, written on a moving piece of paper. Morse did not patent his code.

    2. He is off on a frolic and clearly is not applying the law.

      Not only that, but he merely mouths the tripe of anti-patentists, and does NOT even get the PHOSITA understanding correct.

      There is no respect to be had for such a judge.

    3. Pontificator: “(1) patents constricting the essential channels of online communication run afoul of the First Amendment.” Poor Mr. Morse; no telegraph patent for YOU!

      As I wrote downthread, if you aren’t even trying to understand what Mayer is writing, then why bother?

      “Software is a form of language—in essence, a set of instructions.” A bizarre statement

      ROTFLMAO

      It’s a perfectly accurate statement and there’s nothing at all “bizarre” about it. Perhaps you’ve never programmed a computer before?

      Software configures actual logic gates

      That’s nice. Nothing inconsistent about that statement and Mayer’s statement. Go ahead and claim a “method of configuring logic gates, comprising typing instructions into a computer that accepts instructions, wherein said instructions are: [insert what you type here” and see what happens. That would be the honest thing to do. Go ahead. Let everyone know how that works out.

      Alternatively you could claim the structure of the logic gates. Or are you going to argue that the gates are “too small”?

      is not chemistry notation a language that describes physical chemical reactions etc.? Is not a mouse trap described by the English language with language constructs such as “springs”, and “bodies”, and “triggers”, etc.? Software is no different.

      Because Pontificator says so! Bow down everyone! Instructions for a computer claimed in purely functional terms are exactly like a mouse strap or a chemical claimed in structural terms. I guess there’s nothing left to discuss, at least not on Pontificator’s planet. Meanwhile, back on Earth …

      The test is not what a software claim means to a judge. The test is what a software claim means to a software engineer.

      LOLOLOLOLOLOL
      Translation: “You don’t understand meeeeeeeeeee! Wah! Wah!”

      1. “Alternatively you could claim the structure of the logic gates. Or are you going to argue that the gates are “too small”?”

        Because human language enables me to communicate more efficiently with other computer programmers about what the gates should do collectively. Just like chemical notation allows me to communicate with chemists about what protons and electrons are doing. Why don’t you write your chemical assay/compounds claims in terms of quantum mechanics? Why doesn’t the mechanical engineer describe the new type of mouse trap in terms of atoms?

        Patents concern human activity, not metaphysical boundaries. Patent claims are a communication between artisans, not an exercise in metaphysics.

        1. He know that.

          But doing as you ask would mean that he would have to be inte11ectually honest, and admit that it is only his “feelings” driving his animus.

        2. Why doesn’t the mechanical engineer describe the new type of mouse trap in terms of atoms?

          If the only differences between the old mouse trap and the new mouse trap are at the atomic level, that’s what the engineer will be forced to do.

          Why don’t you write your chemical assay/compounds claims in terms of quantum mechanics?

          Oh, I seem to have struck a nerve with the laziest and most coddled class of patent applicants in the history of the world. S00per serious stuff here! LOLOLOLOLOLOL

          1. I think the nerve struck is your own and your preoccupation with wanting one optional claim format to somehow be more than just an optional claim format (and your repeated ig norings of the legal notion of PHOSITA in the discussion.

            Heck, even the inherency doctrine is in play, and yet for these actual legal concepts, nothing on point or with merit from you.

            “Go figure Folks.”

  25. Under Judge Mayer’s reasoning nothing made of steel should ever be patent eligible. Nothing made with a hammer should ever be patent eligible.

    Such ignorance from a Fed. Cir. judge is a national disgrace.

    1. Or anything made using a test tube is not patent eligible, etc.

      So, J. Mayer, I take the software and make a special purpose chip to implement the information processing method. Now under your reasoning it is patent eligible and yet equivalent to something that is not patent eligible.

      ==><== Our country is in serious trouble.

      1. Our country is in serious trouble.

        LOL – because NWPA’s favorite patents are swirling down the tubes.

        You better v0te for Trump! He’ll make Merka grate!

          1. It’s Godwin-esque.

            Les’s Law: “as the length of a subject matter eligibility thread increases, the probability of the Wright Flyer being mentioned increases to 1”

            1. Clever retort. Have I miss-applied the Judge’s logic?

              Its really proportional to the $tupidity of the anti-patent assertions, but those are usually in the long threads, so I can see why you might see a correlation to length.

              Of course, claims based on correlation are all abstract ideas, because Mayo…. so, don’t try to patent it, even if it cures cancer.

    2. Such ignorance from a Fed. Cir. judge is a national disgrace.

      100% sure here that it’s you and your fellow junk patent luvvers who are the “disgrace.”

      If there are any intelligent defenders of s0ftware patents out there who can read and write, we’d love to hear from you.

      1. He must have been appointed by Obama or some other patent-h@ting c0mmunist type.

        Oops. It was none other than Saint Ronnie who put him there.

    3. Night, how you can connect what Meyer said with what you just said is something that is not quite obvious to ordinary creatures such as myself. Can you connect the dots a little bit more? How does Mayer’s thought that one should not be able to patent software, albeit made by man, because it is nothing more than instructions – like the notes of music – lead one to conclude that Meyer’s logic would lead one to conclude that things made of steel should not be patent eligible.

  26. “Accordingly, “[t]he fact that a computer necessarily exist[s] in the physical, rather than purely conceptual, realm is beside the point” in the section 101 calculus. Id. (citations and internal quotation marks omitted).”

    No it isn’t beside the point. It is precisely on the point. 101 says, “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.”

    Depending on the wording or ones point of view, the subject class of claims are either new machines or new and useful improvements thereof and are meet the eligibility requirement of under 101.

    1. Again, Les, if you lack the intelligence to have the discussion, then just stay out of it. Otherwise you’re just tr0lling.

      The term “process” in 101 has never been construed to mean any process. And it’s never been the case that just because something is described as a “composition” or “manufacture” that it’s eligible for patenting. Books are “manufactures”, after all.

      All that Judge Mayer is doing is breaking down the history and reasoning for you. Other people have been doing the same thing here for years. Meanwhile you’ve been sticking your head in the sand and filling the hole with your tears. Grow up, zombie.

      1. if you lack the intelligence to have the discussion, then just stay out of it. Otherwise you’re just tr0lling.

        A
        O
        O
        T
        W
        M
        D

      2. Getting a little emotional? Ad hominem much?

        As far as construing “process,” fortunately the statute provides some guidance in an effort to avoid just such nonsense.

        35 USC 100 -(b) The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

  27. Back in the 60s could I have gotten a patent on ‘a system of using paper and ink to display information about presidential wiretapping conspiracies’ ? It was novel since there had never been a presidential wiretapping conspiracy before. It is technical since printing is technical. It improves the paper since now the paper conveys useful information. Sounds 101 eligible..

          1. “A system of using” is not an apparatus, I don’t think. Neither is it a method.

            LOL So what is it, Les?

            Let’s say it again: the defenders of the worst junk ever patented will do and say literally anything if they believe it serves their immediate goal.

    1. Y
      A
      W
      N

      C’mon Slashdot Reader, we’ve been over this point a gazillion times and even Malcolm has volunteered an admission as to knowing and understanding the exceptions to the judicial doctrine of printed matter.

      Rehashing such attempts as you do is beyond banal.

      1. even Malcolm has volunteered an admission as to knowing and understanding the exceptions to the judicial doctrine of printed matter

        Anybody know what “anon” is trying to say here?

        Tell everyone more about the “doctrine of printed matter”, “anon.” What are its origins? What does it mean? What purpose does it serve? How exactly is it applied to “claims as a whole”?

        Tell everyone, “anon.” You’re the expert. You’ve thought about this a lot. Sure you have.

        1. Asked and answered Malcolm.

          Many times now.

          But you already knew that.

          Maybe you want to not be an arse and treat the discussion with just the tiniest bit of inte11ectual honesty?

          (I won’t be holding my breath)

          1. Asked and answered Malcolm. Many times now.

            That’s funny because I can’t recall a single time that you ever wrote anything vaguely substantial or remotely intelligent about the subject, ever.

            I do recall you reciting this little script of yours a billion times, however. Maybe — just maybe — you’re a dissembling cl 0wn who knows n0thing at all about the subject.

            Go ahead, “anon”. Suprise everyone. Write a few paragraphs that makes sense. I dare you.

            1. Lol – you saying that you don’t remember means absolutely nothing and is most definitely a “YOU” problem.

              You might try starting to be inte11ectually honest (or just plain honest) in order for you to start recalling things.

              Or you can just visit the archives and read the black and white.

              Your choice.

  28. “101 creates a “patent-free zone” and places within it the indispensable instruments of social, economic, and scientific endeavor. ”

    No it doesn’t. 101 says: “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.”

  29. I’m sorry….VIRUSES are speech?

    I knew silence like a cancer grows, but I didn’t know viruses are speech…

  30. “It also means that if I have a computer hooked up to the Internet I’m free to use it for its intended purpose (i.e., communicating stuff, conducting commercial transactions, etc) without worrying about you and your zillion junky “do it on a computer” patents.”

    Yes, but how is someone else’s use of a virus filter limiting your use of the computer. I am allowed to buy antivirus software and prevent your virus-containing email from getting to my inbox. That’s not a restriction on your free speech (I can cover my ears or walk away to avoid hearing your speech if I want).

    Even if Mayer has a point that patent law is not free of the constraints of free speech, it should be enforced in an as-applied mode, not a facially unconstitutional mode. If someone tries to control passage of communications through the internet, that could be a first amendment problem. My antivirus software is not.

    1. but how is someone else’s use of a virus filter limiting your use of the computer.

      It’s not. Who said it was? Answer: nobody.

      If someone tries to control passage of communications through the internet, that could be a first amendment problem. My antivirus software is not.

      Nobody claimed otherwise.

      Let’s just ask the question: are the Internets most vociferous defenders of junky s0ftware patents typically ign0rant, dish0nest or b0th? I’m going with door number three.

    2. Yes, but how is someone else’s use of a virus filter limiting your use of the computer.

      You might want to check the claims before you make such a narrow statement.

  31. Wow, sounds like Judge Mayer let one of his law clerks run wild with this one. He should be embarrassed. The Republic – the unique American Experiment – is in a very dark place when this Rousseau -ian ‘commons’ junk is animating the wholesale recasting of American legal jurisprudence. Dennis, do law schools even mention Locke in Conlaw 101?

      1. Next thing you know Obama is going to come knocking on the door demanding that you give those patents back!

        Already happened – AIA and all….

  32. I am more interested in the statement that software is simply not patentable subject matter. This might cause pains for many. But, would such a bright-line rule ultimately better the patent system?

    1. It would not be a ‘bright line rule’ but a witch hunt to strike down, I would estimate about 2/3 of all subject matter classes.

      Furthermore, this purported ‘bright line rule’ is done on the pleadings. It should be us – the lawyers – who should be sounding the alarm as to the lack of due process in this Queen of Harts style of decision making.

    2. It would not better the patent system, and there is a good reason for that. Many things that were once done in hardware are now done in software. As this accelerates, following a ‘no software patents’ rule would take things that were once eligible for patent protection and remove them from eligible subject matter. There needs to be legislation to fix the current mess, but I sincerely doubt that anyone in congress knows enough to successfullly write it!

      1. There needs to be legislation to fix the current mess, but I sincerely doubt that anyone in congress knows enough to successfullly write it!

        Regrettably I concur on both points. We need a legislative fix, but the Congress lacks the knowledge and experience necessary to draft that fix properly.

        1. It is actually quite simple

          Reset to the original intentions of the Act of 1952, employ the Comstitutional power of jurisdiction stripping of patent appeals from the Supreme Court (since such items are not within the Court’s original jurisdiction), and set up a new untainted Article III court (to preserve Marburg.

          It is not the lack of understanding that gets in the way – it is the “capture” of the Citizens United type of “voice$” that is the stopping point.

          1. It is actually quite simple. Reset to the original intentions of the Act of 1952…

            I agree that the fix needed is conceptually simply, but you cannot write as your legislative text “the original intentions of the 1952 shall henceforth be restored, notwithstanding intervening rulings by Article III courts.” That would not change anything, because Congress expresses its “intent” in legislative language, and the courts are the last word on what that expressed “intent” is, so the “original” intent would simply be whatever the court said it was.

            I thought that some of Bob Sach’s legislative language offered plausible fixes.

            I particularly liked

            100(b)(1) The term “process” means process, art, [[or]] method, or algorithm, and includes any [[new]] use of a known process, machine, system, computer, manufacture, composition of matter, or material, regardless of physical embodiment or means of implementation.

            100(b)(2) The term “machine” means a system or apparatus, made by human agency, regardless of physical embodiment or means of implementation.

            and

            100(k) A “law of nature” means an express statement of a physical, causal relationship governing the natural properties or behaviors of physical objects, and that is recognized by the relevant scientific community.

            100(l) A “natural product” means a material, substance, composition as entirely as it appears in nature without any processing by human agency, and excludes any purified, simulated, copied, isolated, replicated product.

            100(m) An “abstract idea” means a purely mental concept that is incapable of any physical embodiment and excludes any process performed by a computer program.

            and

            101(b) The eligibility of a claimed invention under Section 101(a) shall be determined according to the language of the claim as whole, and without regard to whether any limitations are conventional, routine, well understood, lacking in novelty, or obvious.

            The harder part, however, is getting the Congress to care. Most congress-members know that their constituents (by and large) do not care about the patent system in anything more than the most abstract way, so the members do not have any reason to care about getting the details right.

        2. We need a legislative fix, but the Congress lacks the knowledge and experience necessary to draft that fix properly.

          Tell everyone what the “fix” looks like, Greg.

          I’m sure you’ve thought about this a lot. Tell everyone.

      2. It would not better the patent system, and there is a good reason for that. Many things that were once done in hardware are now done in software.

        So?

        1. So, if you ban all software patents, a cottage industry will arise of people devising electronic hardware, or even mechanical hardware, to put in the applications for enablement.

          They could put vaccuum tubes in the spec, or even cogs and gears, as long as they do they same as the software and can be claimed the same way. Of course, any potential infringer is going to use a computer running software, but never mind that.

          1. The point being that the shadow version included in the spec will never be built, as it can be done with software, and will be.

            And … so what?

            1. You keep on wanting to pretend that there is no such thing as the equivalence of software with hardware and firmware…

              Do you really think that anyone is taking this faux position of yours as anything even remotely not dissembling?

                1. And anon, I am fundamentally agreed that firmware of a computer can be claimed as such. The issue of whether software is equivalent is a matter infringement.

    3. If one is going to ask for the impossible, it would be infinitely better to reform 112 so that you can’t claim a wish for an ill defined software based result.

    4. The problem is that as a society we are moving most, if not all, of our innovations to the virtual/online realm. The law is just not catching up to the direction of innovation. We need new patent statutes that directly address software inventions. Maybe the solution is limiting the term or requiring a more robust 112 written description. But if we say software is outside the scope of patent eligible subject matter, then the majority of our country’s innovations would be unprotected per se. Copyright is not sufficient as it doesn’t cover the functionality of the program, just the arrangement. No longer are we buying and selling cotton gins, we are buying and selling software

      1. “Maybe the solution is limiting the term or requiring a more robust 112 written description.”

        Winner, winner, chicken dinner.

        1. The same people here who whine endlessly about 101 will whine endlessly about 112 if, e.g., it is interpreted or rewritten to require disclosure of code that successfully excecutes the operations (and delivers the asserted improvements) on relevant operating systems.

          It’s all those people know how to do, after all.

          1. “Disclosure of code”…

            And why would PHOSITA need that?

            (In case you don’t recognize it – that’s a legal question. Maybe you want to provide a legally cognizant answer and not your typical ad hominem or poker tells that you have no answer – it might take you awhile, but give it a try)

            1. “And why would PHOSITA need that?”

              Nobody said that PHOSITA would “need” that. People said that the government might want to impose that condition on patents. Not because some imaginary man “needs” it, or even “wants” it, but as a matter of statecraft re re.

                1. Sure they are. Or in the alternative, how the law which is currently on the books could be interpreted in a respectable way that doesn’t encourage petty swindling through the patent system.

                2. Your “or in the alternative” is incongruent with your assertion of “sure they are.”

                  You cannot have them speaking about how the law might be changed in the future AND speaking about how the law is today.

                  Those are mutually exclusive.

                  As I said:

                  I don’t think you have grasped what they are saying 6.

                  They are not speaking about what the law could be in the future.

                  (and please please please do not conflate interpretation and re-writing)

                3. “You cannot have them speaking about how the law might be changed in the future AND speaking about how the law is today.”

                  Really? It’s impossible to talk about two subjects at the same time?

                  “” 112 if, e.g., it is interpreted or rewritten”

                  ^Interpreted or rewritten.”

                  Looks like they did to me re re.

                  “I don’t think you have grasped what they are saying 6.

                  They are not speaking about what the law could be in the future.”

                  Sure they are. They just now said it re re.

                4. It is impossible to mean both things with a single statement when each of the both things are mutually exclusive.

                  Yes.

    5. A problem with this “concurring opinion” is that the claims were not directed to software, yet the opinion was penned as if it were. The claim declared representative was:

      9. A method for identifying characteristics of data
      files, comprising:
      receiving, on a processing system, file content
      identifiers for data files from a plurality of file content identifier generator agents, each agent provided on a source system and creating file content IDs using a mathematical algorithm, via a network;
      determining, on the processing system, whether
      each received content identifier matches a characteristic of other identifiers; and
      outputting, to at least one of the source systems
      responsive to a request from said source system,
      an indication of the characteristic of the data file
      based on said step of determining.

      “Software” is not claimed. A method is claimed and 35 USC 101 clearly indicates methods are eligible.

      1. “Software” is not claimed. A method is claimed

        The claim covers a method to be carried out by a general purpose computer that has been programmed to carry it out.

        Got anything else? You want to bring up the Wright Brothers? Or maybe you want to pound some sand and screech about “canards”?

        1. “The claim covers a method to be carried out by a general purpose computer that has been programmed to carry it out.”

          First of all, I see no mention of a general purpose computer.

          Second of all, so what? What is special about a general purpose computer that using it to perform a claimed method poisons the patent-ability or eligibility of the claimed method?

          New medicines are made with general purpose caldrons, heaters and mixers, are methods of making drugs not eligible because they include using prior art beakers, burners and stirring rods?

      2. It is insufficient to define a process merely to indicate a sequence of steps. According to the MPEP a process is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. If the claimed subject matter is insufficiently transformative, it is unlikely to fall within the “process” category of Section 101. As a matter of first impression the processes claimed here are not particularly transformative, but does not justify purported judicial legislation going far beyond the case befor the court.

        1. Paul,

          Let me kindly remind you that the MPEP does not have the force of law and that the Supreme Court rejected MoT as a legal requirement (9-0), see Bilski.

        2. 1) The claimed method is transformative, it transforms a source system from a state of uniformed regarding the characteristic of an identified file to informed regarding the characteristic.

          2)The claim is tied to a processing system.

          Accordingly, the claim passes both legs of the “machine or transformation” test, which is at least a clue to eligibility.

  33. For me, the invocation of the Constitution is an eyebrow-raiser, because it seems to me to conflict with the notion that courts of appeal should not make things more complicated than they need to be, and not let free to run more than the minimum number of hares. Frankly, the scope of the prohibition of anything that is conceivably “abridging the freedom of speech” strikes me as injudiciously, unfortunately wide.

    Invoking the Constitution strikes me as a solution exceptional to the USA. I cannot imagine it being utilised anywhere else in the world and in particular not in Germany which has an immediately post-war written Constitution more or less written for it by the USA. You would have thought that the victors would be at particular pain to ensure that, henceforth, Germans shall enjoy a right of free speech, wouldn’t you?

    But perhaps Mayer thought it necessary, to chime with the voters. Unconstitutional! Very convincing, that notion, I suppose, to Americans!

  34. Mayer’s 1st Amendment screed is more than a little amusing, given the private telecommunications monopolies our government(s) allow to exist and exorbitant fees on supposed “conduits” of free speech. There are at least a few THOUSAND legal problems that raise more 1st Amendment which need to be addressed before patent law of all things.

    What a bizarre rant.

    1. “What a bizarre rant.”

      Indeed.

      Apparently he’s changed his mind re: what Alice holds and has gone even more r@dical since Ultramercial and DDR.

      Hilarious that MM and the examiners ignore the hypocrisy in their reliance on the 1/18 Fed Cir judges that espouse this “software is unpatentable” opinion while chastising those who rely on the 4/20 or so pro-software patent decisions at that same court.

    2. The problems with the first amendment argument are so obvious and compelling its hardly worth the time to write them.

    3. Just to be clear here – you’re not suggesting that the patent power isn’t subject to the first amendment, you’re simply suggesting that the first amendment is not applicable on the facts, correct?

  35. (1) patents constricting the essential channels of online communication run afoul of the First Amendment

    Just so there’s no confusion about this (and rest assured, there will be people out there trying to make it as confusing as possible), Mayer is not saying that all patents on technological improvements relating to communication run afoul of the First Amendment. The patents which run afoul of the First Amendment are the patents which begin with existing communication technologies, e.g., “the Internet” (or radio, or books, or telephones, or television) and attempt to claim exclusive rights to the types of data (e.g., by reference to the content or meaning of the data) that are communicated via those technologies, or abstract means of accessing the data (“passwords”, “menus”, “subscriptions”, “shove an ad in your face”, etc etc etc). If, come tomorrow, somebody innovates an entirely new way of communicating information called Bribbleplex, the patent system absolutely does not — and should not — be warped around that technology so that 1 million patents a la “wherein said Gribbleplex is configured to display a list of preferred videos” are granted over the next five years. We performed that experiment already. It’s a disaster. And most of the blame for the extent of the disaster — which is ongoing — can be put at the feet of the PTO and the CAFC. The only beneficiaries: patent lawyers, patent tr0lls, and a few clever judges who manipulated their rules to boost the local economy.

    Bottom line: you can’t patent information or knowledge. This limitation on the patent system is not a new idea, as everyone who reads this blog (and others) knows very well. But it is a powerful and correct idea, and it’s one that the Federal Circuit and the Supreme Court have (unfortunately) danced around for a long time, even as many Justices and CAFC judges have intuitively recognized the issue(s).

        1. Awesomely bad, yes.

          Awesomely ridiculous that anyone does not see that? Yes again,

          But that won’t stop the anti-patent crowd, eh?

    1. “Bottom line: you can’t patent information or knowledge. ”

      Just so there’s no confusion (and rest assured there will be a person in here trying to make it as confusing as possible), the representative claim here was not directed to a method, not information or knowledge.

  36. The right to freedom of speech is not some kind of positive right, it is not the right to someone else’s physical or intellectual property in order to communicate, it is a negative right, i.e. the right not to be the subject of the initiation of force in the face of one’s particular exercise of communication.

    The right to freedom of speech does not mean you have a positive right to get free walkie-talkies, it does not mean you can seize your neighbor’s smartphone whenever you want to use it, it does not mean you get to walk across someone’s land to deliver a note to someone on the other side, it also does not mean you get to ignore someone else’s creation of intellectual property in the form of an invention, freedom of speech is a negative right, it means you should not go to jail for simply speaking your mind.

    1. it also does not mean you get to ignore someone else’s creation of intellectual property in the form of an invention

      In fact, in certain instances, the First Amendment absolutely does mean that. It depends on “the invention.”

      it means you should not go to jail for simply speaking your mind.

      It also means that if I have a computer hooked up to the Internet I’m free to use it for its intended purpose (i.e., communicating stuff, conducting commercial transactions, etc) without worrying about you and your zillion junky “do it on a computer” patents.

      On the other hand, the First Amendment does permit you to whine and cry all over town that I copied “your idea” of using a computer monitor to display a menu in my restaurant. Go for it! Exercise your awesome First Amendment right. And while you’re at, feel free to choose between fries and onion rings “on a computer-contr0lled display.”

      Everyone will be totally impressed, just like we’re all already super impressed by the “more patents all the time easier to enforce!” ba l0ney that you and “anon” and the rest of your “expert” patent-worshipping cohorts have been slinging around for years. You’re super serious people!

    2. freedom of speech is a negative right, it means you should not go to jail for simply speaking your mind.

      Um nobody is suggesting that people are entitled to, e.g. a walkie talkie. Mayer is suggesting that Congress can’t attach liability to your use of a channel of communication. That’s the negative right you’re admitting the first amendment covers (to be free from government force of using it). If they lack the power themselves, what makes you think that they can grant the right to an individual to take your money (and use the power of a governmental court to compel it)?

      Your analogy to “someone else’s intellectual property” is similarly misplaced. “Property” is a bundle of rights granted by government. If the Federal government is denied the ability to grant the right, then you don’t have any “intellectual property” that you “own” and thus there is no problem with someone else “invading” it. Even if intellectual property extended to abstract claims to an entire field (which it doesn’t) whatever power the patent clause granted was curtailed by the first amendment.

      Calling it “someone else’s intellectual property” assumes the very issue being argued over…

      1. Hypothetical – President Trump asks Congress to recognize that his son, Don Jr., was the first to criticize his plan of “building a wall and making mexico pay for it.” Congress complies, and grants to Don Jr. a patent on broad method and system claims directed to criticizing President Trump for his plan.

        Liberal Editorializer comes along and criticizes the wall in a manner that infringes the broad method claim. Don Jr. sues, stating he has “intellectual property” which is being “used” without his license, and asks a government court to compel the transfer of money to Don Jr.

        Can Congress write a law that has the effect of attaching liability to people who criticize the current government regime (even if they don’t benefit from the liability)? Can the courts, as an arm of government, compel the transfer of money? In view of the foregoing answers does Don Jr. have any intellectual property whatsoever?

          1. Hardly. All I did was swap a clearly-circumscribed-by-the-first-amendment case (a prohibition on political speech) with the not-widely-known-circumscription that Mayer relies upon. All my example is meant to show is that if you think about it for a second then you conclude that clearly the first amendment applies to limit what would otherwise be a statutorily valid claim.

            What the first amendment circumscribes is the subject of caselaw on which this board has no particular expertise. If Mayer is correct that an absolute liability on the use of a channel of communication is beyond the regulatory reach of congress, it is beyond the reach of congress. They can’t sidestep the requirement by assigning a patent right to a particular person.

            1. You remain deeply confused – are you really trying to say that patents are “personal laws” in the name of the US sovereign (so as to equate them to laws passed by Congress)…?

              1. (and the even sadder thing is that others such as Martin think that they are actually learning about law from the nonsense you post.

                IF you were an attorney, you would be ethically restrained from attempting to pass off such drivel as the law (notwithstanding the lack of constraint shown by attorneys here (actual ones such as Ned and purported ones such as Malcolm).

              2. I’m saying that congress is free to recognize the contributions of people to society all it wants. It names post offices on behalf of Reagan and recognizes martin luther king day and rises to show that Peeps are a quintessentially American good.

                But when Congress moves to attach liability to actions, those liabilities are subject to the constraints of the first amendment. When Don Jr walks into court and says “Congress has recognized this contribution, and further says that this contribution entitles me to get money from you” the “get money from you” part has to pass the first amendment. I’m trying to say that if Congress or the PTO declared Don Jr he has a right, that declaration is unconstitutional. If Don Jr seeks a remedy, that remedy is unconstitutional.

      2. Property is a natural right. Start with that. Fight a revolution, against the notion that property rights are only by the grace of the King, and get back to us.

        1. Nice.

          Now starting from the enlightenment, let bad philosophy (irrationality, communism, socialism) poison and stagnate the population into despair, evasion, and cannibalism.. and take the erosion of rights to the brink of totalitarianism… which is today…

          now let’s try backing up a little… maybe?

        2. Property is a natural right.

          Except “property” means the physical thing that you have. Again, nobody is suggesting the government can’t stop me from taking your walkie talkie. “Intellectual property” is a non-natural concept that attempts to stop the dissemination of information, and the first amendment curtails that.

            1. I know, right? RandomGuy did you go to law school in the US? What is your class year? I don’t mean that in a demeaning way. I just want to know if you were specifically trained on the concept of ‘property’ or you were taught some EU view.

  37. The first amendment argument is correct. And as I’ve mentioned before it has other applications with respect to other amendments. A previous example I’ve used is that method claims which would infringe upon a person’s right to assistance of counsel are suspect. (Recently there was a copyright decision about submitted trial briefs which is also suspect) But the argument as constituted here is actually nothing new – a channel of communication is a field, and a claim to a field without significantly more is abstract under Alice. Although the judicial exceptions are premised on Congress not being granted the power to monopolize in a manner that would not promote the arts, the exceptions could be independently upheld with respect to abstract ideas under first amendment.

    The second argument, that, as the first paragraph puts it claims directed to software implemented on a generic computer are categorically not eligible for patent protection is obviously wrong. In fairness, Mayer’s later paragraphs appear to concede this point:

    First, their scope is generally vastly disproportionate to their technological disclosure…Software patents typically do not include any actual code developed by the patentee, but instead describe, in intentionally vague and broad language, a particular goal or objective…In effect, the ‘610 patent, like most software patents, describes a desirable destination but neglects to provide any intelligible roadmap for getting there.

    Because they are typically obtained at the “idea” stage, before any real inventive work has been done, such patents are incapable of effectively incentivizing meaningful advances in science and technology…Under our current regime, those who scamper to the PTO early, often equipped with little more than vague notions about using computers to automate well-known business and social practices, can reap hefty financial dividends. By contrast, those who actually create and deploy useful computer-centric products are “rewarded” with mammoth potential infringement liability.

    Given the vast number of software patents—most of which are replete with broad, functional claims—it is virtually impossible to innovate in any technological field without being ensnared by the patent thicket.

    An applicant has the right to obtain a patent only if he can describe, with reasonable clarity, the metes and bounds of his invention.

    Everything Mayer says there is true, but does not add up to the conclusion that software patents are categorically ineligible. It is true that software patents are routinely applied for for achieving an outcome (Concern 2) with only the barest and most vague manners of how to get there (Concern 4) and the use of functional language is overbroad of the actual posited invention (Concern 1). Its something I have been saying for years and the main reason I started posting on this board.

    But I depart from Mayer and people like MM when that “often” becomes “categorically”. Properly narrowed method claims are allowable. Putting them “on a computer” adds nothing to them, but there is nothing wrong with inventing a new method and limiting the scope of the claim to a generic computer. There also properly exist a small number of claims typified by DDR Holdings and Enfish which I believe are proper (I don’t believe DDR Holdings was properly decided on its particular facts, but the logic is generally applicable) – In instances where it would be inventive in and of itself to implement a real-world act on the computer because the general logic of “coding is non-inventive mere scrivener’s work” does not apply, a claim to that subject matter is eligible. In instances where the claim is directed to particular acts which concretely improve the computer-qua-computer, the subject matter is eligible.

    What appears to have happened (looking back on the caselaw with the benefit of hindsight) is that courts of first impression in software appear to have fashioned rules which allowed software subject matter claims to remain profitable by departing from generally fashioned rules and accepting overbroad functional language with little descriptive support. Later cases simply applied the patent law that was applicable to everything else to software, and had the effect of drastically curtailing what is a valid software claim. Both litigators and, certainly based upon my experience seeing so many of them, prosecutors seem to be unable to grasp this fact. Instead they use the broad functional language their legal forefathers used because back when they used it cases said it was valid.

    Most properly constructed software patents would be of a scope that they are not commercially valuable. That is because the computer, as Mayer correctly points out, has long fallen into the public purview and the computer is a wonderous machine that allows for multiple completely divergent paths for one to achieve similar results. A claim to the result itself is invalid, and a claim to the path is generally not commercially valuable because it can be designed around: One of skill could come up with a completely different path which would achieve a result which may not be as good (or may be much better) than the described path/result allegedly supporting the claim scope, and the difference to the end user is so minor that a would-be infringer would just redesign their system rather than take a license.

    Patent law only promises a scope commensurate with the invention, not a commercially valuable scope. If you come up with, and disclose, one way of achieving result X when there are easily 100 different ways of achieving X or something similar to X, the PTO should happily grant you your “one way” and prevent a claim on “achieving X” no matter how much you push the issue. In fact, the PTO issues claims on “achieving X” all the time, and Examiner’s aren’t even properly taught how to stop “achieving X” claims, which is why the courts end up with so many 101 and 112 invalidations of software claims. That the Office fails to actually teach its examiners to reject overbroad scopes does not make software “categorically ineligible” it just means that the Office, much like the prosecution bar, fails to adquately appreciate, respect and implement what everyone knows is generic 101 and 112 law.

    For examiners who read this blog – the fault, dear friends, lies not in our stars but in ourselves. Mayer is right to say that the vast majority of software claims that have issued are in fact invalid. Mayer is wrong to say that that proves that those type of claims are categorically invalid. The difference is our fault.

    1. Random I appreciate your posts; I believe that I have learned more from you than any other poster on this board. I love Mayer’s concurrence not so much as I agree with it (I do in parts, but I don’t think software should be categorically ineligible) but because the policy question has to be confronted sooner or later. This opinion basically declares war on status quo; I would love to see Judge Chen respond in a pending case.

      I disagree that “property” is a bundle of rights granted by government. The right to ownership of certain items is an inalienable human right; not granted by government but protected by government. Some property, such as a patent, is a government grant, but the invention belongs to the inventor with or without a patent, or even a government at all.

      What really makes me smile about this opinion is that it flatly makes a number of the points I have made here over time; that software includes elements of literature, that software patents may bump directly against other rights to expression and association, that copyright is the natural, appropriate protection for many software products, that scientific discovery (e.g. Sequenum) by itself is not patentable. I draw sneers for not “knowing the terrain” or “understanding patent law” or staying at the Holiday Inn. Meanwhile, this is an expert Federal Circuit judge speaking in exactly the terms I have used many times- perhaps as wrong as I am, but a helluva lot more qualified.

      I believe this judge would reach for a compromise if one were available if that compromise could clearly separate eligible software inventions from ineligible software inventions. Everything Random has taught here about 112 and the differences between genus and species, and how scope tends to becomes more abstract as it widens, esp. in software, would still be critical to equitable patentability analysis of even eligible software inventions.

      Random hit another key point noting that in “instances where it would be inventive in and of itself to implement a real-world act on the computer because the general logic of “coding is non-inventive mere scrivener’s work” does not apply” because the fact that computer inventions are often models or simulations of something in the world applies two separate universes of prior art and the contours of knowledge of PHOSITA; is the field in question the item being modeled or is the field computing and modeling? It very often is both. Almost everyone thinks that claims which concretely improve the computer-qua-computer should be eligible. That’s why Alice/Mayo is never going away even if all software was magically ineligible tomorrow.

      I remain convinced that the compromise that I advocate makes the most real-world sense in unifying the various political views about eligibility. Those views range from the Quinn-bot “everything made by man” to Mayer “software is categorically ineligible”. Not a narrow gap to close.

      When people use information, it’s always abstract, and the value derived is always personal. A non-human actor cannot consume a book or a movie or any other information or expression in a first-amendment sense.

      Section 100(b) should be amended to read: “a process which results in information consumed by human beings may not be patented.” This preserves the technical use of software in myriad ways, but forecloses the horribly expensive and sui generis attempts to monopolize ideas, ways of associating, and ways of expressing simulations, models, and representations of the world.

      1. I believe that I have learned more from you than any other poster on this board.

        You say that as if it were a good thing.

        It is not.

        All that you do is confirm your own lack of objectivity and that you merely seek a “confirmation bias” to your personal scars.

      2. The right to ownership of certain items is an inalienable human right; not granted by government but protected by government. Some property, such as a patent, is a government grant, but the invention belongs to the inventor with or without a patent, or even a government at all.

        I think a simple reading of both legal history and basic philosophy will divine the distinction between a physical item that one can assert dominance over and a mental thought which by definition one cannot assert dominance over. When I capture a horse and bend it to my will, you taking the horse deprives me of the work I put into the horse. The “inalienable right” you mention is the sunk cost of my labor put into breaking the horse. But when you start a fire and I walk over and use your flame to light my candle, you still have your fire. Different rules apply because “intellectual property” can only have the prospective benefit of encouraging future people to light more fires, and not the remedial benefit of reducing harm to your flame – your flame hasn’t been damaged. Your “inalienable right” doesn’t exist because I haven’t deprived you of the labor you used.

        Historically, there hasn’t been any protection for ideas (and there still isn’t, to the confusion of many on this board) and the reason people created music and art and invention is for their own benefit and their own glory. Intellectual property is a late-developing concept that largely grew out of the concept of work-for-hire being cultivated by governments rather than rich italian houses. The church could hire Michaelangelo to paint, but each of us individually is not rich enough to afford to have Bruce Springsteen write new songs for us, so the government acts as a broker to guarantee Springsteen that if he creates the public will pay him for it. There is nothing “inalienable” about it – If Bruce works to create a song, he still has that song no matter how many other people find it much easier to just listen to Bruce and sing the same words. “Intellectual property” only exists in so far as you have a contract right which includes sunk costs – The public placed an offer out there, you incurred costs to complete, and you are entitled to the benefit of your contract completion. But that logic is dependent upon the public’s original offer being a valid offer.

        Let’s say I go discover a fact of extreme relevance. Trump is not a US Citizen for example. Nobody would call that fact my “intellectual property” even though I expended labor to uncover it. No court would hear me if I tried to prevent other people from disseminating that fact, or Clinton from using the fact against him. But the steps I took to uncover that fact are no different than figuring out a five step process for estimating driving time, or whatever the invention du jour is. The reason fact-discovery is called not-legally-protected “journalism” and the method is called legally-protected “intellectual property” is because the government doesn’t offer a “reward” for the fact-discovery labor. All Mayer is saying is “See this reward here that Congress is purporting to offer? Congress doesn’t have the authority to offer that reward” and the “intellectual property” rights disappear.

        1. Plus – you clearly are missing a fundamental notion of exclusivity and your wanting to share fire because “you still have your fire” quite missed the point, at a most basic level.

          You start off wrong, and go into the weeds from there.

        2. That’s what undid Sequenum: all they had was the fact of extreme relevance that fetal DNA could be found in maternal plasma.

          Clearly the notion of personal property and real property are separate in the law; as are other kinds of property. A tax credit may be “property” and you may have labored for it, but it’s still at the whim of the government to sustain it.

          On the other hand, the right to use an invention for yourself that you invented yourself is surely about as inalienable as it gets.

          1. Not at all, Mr. Snyder.

            Your invention may be an improvement invention, and the underlying item may well belong to someone else, which gives you no right whatsoever to practice your own invention.

            Once again, your lack of willingness to be familiar with the terrain that is patent law is your undoing.

            You really need to want to know this stuff in order to advance the changes that you want to discuss.

            1. (Not to mention that there is very much NOT an “independent invention” notion in patent law, while there is such a creature in copyright law)

              Even under the AIA’s broadened submarine “rights” of Prior User Rights, there is no “de facto” independent invention “right.”

            2. If you have the underlying item in hand, the patent rights in it are exhausted, and you can practice your improvement.

              I’m always learning- from people who impart knowledge and insight rather than say, a tireless stream-of-conscience stimming exercise.

              1. Not at all (again) good sir.

                First, you are confusing the concept of exhaustion and second, there is no guarantee (nor requirement) that the first underlying item even exists in physical form.

                Your so-called “learning” is nothing more than glomming onto things that sound good to you. Just because certain people say what you like does NOT mean that is what you should be learning.

      1. I do not think that retirement is enough.

        This stains the entire body of the CAFC. The court needs to repudiate this nonsense and rebuke Judge Mayer for stepping so far out of line with the barnswaggle pure anti-software patent CRP that has no relation to the law or to the facts of this important art field of innovation.

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