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.
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?
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…
Yay – “sycophant” again.
Like I said: it is difficult for Malcolm to learn his lesson. H just keeps on steaming out the CRP.
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.
Lulz – nice to see someone pick up on that so often overlooked point.
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.
“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.
My, what beautiful straw you have, Malcolm.
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.
There is everything straw about that claim.
Do you need me to post the definition and connect the dots for you?
Again?
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.
“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?
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!
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?
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.
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.
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?
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.
“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).
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.
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.
Sure, right after show a comparable real issued claim.
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!
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”
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?
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.
Collins has no clue of the patent law aspects of this Art field.
Collins has no clue of the patent law aspects of this Art field
What’s “this Art field” and what’s your basis for this insult?
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)
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.
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?
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.
Nice attempt at diversion – my answer is fully legitimate.
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”!
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…?
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.
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.
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.
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?
“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.
“I do hope you’re paying attention, Dennis!”
So do I.
So do I.
Except for you, that won’t be a good thing.
“anon” I welcome such questions. But you don’t ever engage
Thank goodness you are such an honest person.
“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.
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.
“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)
…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.
…there should be a negative in the perpetrated misperceptions paragraph – such are NOT fine.
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.
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.
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.
Yes professor. Which court said computer’s are different than other conventional components? Would you provide a citation please?
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.
Nothing like using a ton of apostrophes in your muddle of an explanation, Malcolm
Nothing like using a ton of apostrophes in your muddle of an explanation,
There’s nothing muddled about it.
Maybe then you want to try again with normal simple declarative sentences in plain English without all of the apostrophes…?
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.
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
O
O
T
W
M
D
is an abject failure.
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
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?
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.
(..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.”
“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.
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.
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?
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.”
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)
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.
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.
LOL – where in the writings of Congress is this “data is special because Malcolm feels it should be so” thingie…?
“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?