Infringement Complaint Must Provide Factual Allegations at the Claim-Element-by-Claim-Element Level

by Dennis Crouch

Lyda v. CBS (Fed. Cir. 2016)

Although at first glance, Lyda appears as a narrow decision against an individual-inventor plaintiff, the decision is important because it establishes that a patent infringement complaint must provide factual allegations at the claim-element-by-claim-element level in order to avoid a dismissal on the pleadings.  

In a civ-pro focused decision, the court has affirmed the dismissal of Lyda’s infringement case for failure to state a claim – finding that Lyda’s complaint fails to satisfy the Twiqbal pleading standards.[1]  Rule 8 of the Federal Rules of Civil Procedure require a “ a short and plain statement of the claim showing that the pleader is entitled to relief.”[2]  Failure to state a claim is grounds for dismissal under R. 12(b)(6).[3] The Supreme Court gloss requires allegations of sufficient facts to state a plausible claim for relief.  Although statements in the complaint are taken as true, “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”[4] “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”

Until recently, Twiqbal was not directly applied to patent complaints because the existence of a bare-bones form infringement complaint (Form 18) that the rules deemed to be sufficient.  Form 18 was eliminated in the December 1, 2015 changes to the rules.  In the present case, the amended complaint was filed prior to the change, but the court held that Form 18 does not apply in this case because Lyda implicitly alleged a claim of joint infringement rather than the standard direct infringement that is the focus of Form 18.[5]

Applying Twiqbal is not easy – although the general rule is that the pleadings must include enough plausible facts that – if taken as true – would lead to a verdict for the plaintiff.  In discussing its application, the Supreme Court noted that it will be “context-specific” requiring both “judicial experience and common sense.”  Applying that approach to patent infringement cases, the court here took the fairly bold stance of requiring that the facts plausibly pled be “sufficient to allow a reasonable inference that all steps of the claimed method are performed.”

Lyda’s case was particularly dismissed because the patentee failed to plead the elements of joint infringement required by Akamai.  The Lyda court writes:

[Under the plaintiffs theory of infringement, the] Amended Complaint must plausibly allege that Defendants exercise the requisite “direction or control” over the performance of the claim steps, such that performance of every step is attributable to Defendants. The Amended Complaint alleges that CBS Interactive controls certain independent contractors who in turn direct and control the “participation” of unnamed third persons to send votes on either their own or borrowed cell phones. Mr. Lyda does not set forth any factual allegations in support of his assertion that CBS Interactive directed or controlled the independent contractors. Nor does the Amended Complaint contain factual allegations relating to how the independent contractors directed or controlled the unnamed third parties. Most importantly, the Amended Complaint does not allege any relationship between the Defendants and the unnamed third parties, who own or borrow cell phones, in a way that the actions of these unnamed third parties should be attributed to Defendants. Rather, the Amended Complaint alleges conclusively and without factual support that CBS directed or controlled the independent contractors who then directed or controlled the unnamed third parties. There are thus no allegations in the Amended Complaint that can form the basis of a reasonable inference that each claim step was performed by or should be attributed to Defendants. The Amended Complaint fails to plausibly plead sufficient facts to ground a joint infringement claim under this court’s Akamai decision and does not satisfy the Iqbal/Twombly pleading standard.

The district court also denied Lyda leave to amend the complaint a second time. On appeal, the Federal Circuit affirmed that determination – finding that the district court has “broad power to control its own docket.” With the case dismissed, I expect that Lyda can refile and just potentially lose some of the back damages.

= = = = =

[The complaint]

[1] Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).

[2] Fed. R. Civ. Pro. R. 8.

[3] Fed. R. Civ. Pro. R. 12(b)(6) (“a party may assert . . . (6) failure to state a claim upon which relief can be granted”).

[4] Iqbal.

[5] See Akamai Techs., Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015) (en banc) (requiring that “(1) one party exercises the requisite ‘direction or control’ over the others’ performance or (2) the actors form a joint enterprise such that performance of every step is attributable to the controlling party).

90 thoughts on “Infringement Complaint Must Provide Factual Allegations at the Claim-Element-by-Claim-Element Level

  1. 9

    Sorry for late comment, but I just have to say I dislike the “Twiqbal” mashup.

    IQbombly is clearly the better choice.

  2. 8

    Question: What does a patent owner do when needs discovery to confirm “each step”?

    If a patent infringement complaint must provide factual allegations at the claim-element-by-claim-element level in order to avoid a dismissal on the pleadings, appears to shut to door on many patents.

    1. 8.2

      I believe they have to present ALLEGATIONS of facts, not actual facts.

      I would think something like: step 3 of claim 1 recites getting from point c in the process to point d in the process by doing r. The accused device clearly gets from point c to point d and we see hints l, m and q that are evidence of process r. Moreover, we believe there is no other way for a device of this type to get from point c to point d without using r, would suffice.

  3. 7

    Just so we don’t lose sight of what’s actually happening, here is one of the asserted claims:

    1. A method for receiving and processing responses to a program comprising:

    providing a program identifier code for the program;

    providing means for identifying an audience member[;]

    providing a user input device not requiring a personal computer, the device configured to allow the audience member to send response data directly from the user input device over a standard communication system in response to the program received apart from the device, the device operating without receiving program data;

    having the audience member input the program identifier code into the user input device;

    having the audience member input responses to the program received apart from the device into the user input device;

    transmitting response data comprising the program identifier code, the means for identifying an audience member, and the responses over the standard communication system;

    collecting the response data at a central location;

    correlating the program identifier code to the responses;

    processing the response data.

    This junk claim is plainly ineligible and it’s going nowhere. There’s also a First Amendment issue (often the case because the same concerns animating subject matter eligibility are addressed by the First Amendment).

    Get used to hearing about this because the issue is never going away until junky “communicate this ‘new data using old technology” claims are expunged from the system.

    1. 7.1

      There is no First Amendment issue here.

      Leastwise none that has been presented which treats the Art in an inte11ectually honest manner.

      Sharing your feelings and ad hominem again – without more – is just not helpful.

      1. 7.1.1

        There is no First Amendment issue here.

        Oh yes, there absolutely is.

        The claim recites only old communication technology. On top of that, the patentee seeks to protect what type of information can be communicated with that technology (i.e., “program responses”). The government can’t turn me and my friends into “trespassers” because we use old communication technology to communicate information about “programs” or anything else. But that’s what’s happening when the government hands out these entitlements.

        “Collect the data”, “process the data”, these “limitations” add absolutely nothing because communication is all about collecting and processing data. What else are people going to do with it?

        You do realize, right, that the judicial exceptions are animated by the same concerns that animate the First Amendment. Right? And there’s no question that this claim is ineligible. Heck, even the ridiculous bound-for-the-trash-heap McRo decision isn’t going to save it.

        1. 7.1.1.1

          Do you have any past court discussion indicating that the judicial exceptions are “animatedor even mentioned at all in relation to the First Amendment?

          Of course, by other I mean besides the present Mayer embarrassment.

          Any?

          1. 7.1.1.1.1

            So now there’s only a First Amendment issue if some “past court” discussed the relationship between the First and the judicial exceptions? That’s a rhetorical question.

            I get why you’re moving the goalpost but “past court discussions” aren’t relevant to the legal issue.

            Let’s break it down and make it super dooper simple:

            The PTO gives a patent to Big Bad Corporation with the following claim:

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

            Big Bad Corporation proceeds to sue and threaten to sue anyone who displays such information. You think there’s not a First Amendment issue there? You need me to spell it out for you?

            1. 7.1.1.1.1.1

              I am looking for some non-Malcolm corroboration.

              Your views have proven themselves to be blighted and untrustworthy.

              1. 7.1.1.1.1.1.1

                Your views have proven themselves to be blighted and untrustworthy.

                The facts indicate that more and more people are subscribing to my views all the time.

                And that’s not because I’m some fancy-suited silver-haired “expert” speechifying at those super serious IP meetings. It’s because I have the best arguments.

                The law tends to converge eventually around the best arguments. I’m sure you noticed this. Sometimes it happens faster than you expect.

                And that’s why software patents as we know them are ultimately destined for the trash heap. There are no good arguments for keeping them around. The only reason to keep them around is to keep some rich people from having a sad. Boo hoo hoo.

                1. You have no arguments.

                  You have a short propaganda script and ad hominem.

                  That you appear to think that “your arguments” are bringing more and more people to your side is just you being a legend in your own mind.

                2. …and I am still waiting for you to provide some type of corroboration on the specific item here of the First Amendment and patent law….

                3. That you appear to think that “your arguments” are bringing more and more people to your side

                  This isn’t really a debatable point in 2017.

                  And to be perfectly clear, I’m not taking credit for “inventing” the arguments that are being made (and adopted). They’ve been out there for a long time. As I noted, educated people tend to converge around the best arguments (for obvious reasons).

                  You have noticed, haven’t you, that software patents are taking a serious beating, right, from all parts of the patent statute?

                  I know you want to blame ‘Big Corp’ for that but, with the notable exception of some patent attorney conglomerate “monetizers” out there, it’s Big Corp’s patent portfolios that are losing the most value all around (a great thing!).

                  All this was predicted, as was the damaging effects of logic patents on the system overall. It was predicted by me and it was predicted by others. And there’s only one way, really, to end the farce.

                  Kudos to Mayer. He did the right thing. There is no going back.

                4. You missed the point of the “this is not a debatable point” item that you are responding to.

                  Your ego is almost matched by your cowardice.

                5. I am still waiting for you to provide some type of corroboration on the specific item here of the First Amendment and patent law….

                  Wait all you like.

                  Are you still unable to see the First Amendment issue with the claim “A display wherein said display comprises non-obvious negative facts about Donald Trump”?

                  Golly I hope so.

                6. Still waiting.

                  Why according to you, this is ubiquitous and thus this should be easy for you.

                  And yet, you shrink away…

                  Why is that?

                7. you shrink away… Why is that?

                  I’m right here. And I already to put to bed the notion that “communicate this content with old tech” claims raise First Amendment problems (as it wasn’t obvious already).

                  Everyone can see that. Dennis can see it. Jason can see it. We can all see it.

                  And you can pretend not to see it! That’s wonderful for you.

                  [shrugs]

                8. Oops, left out some words here!

                  I already put to bed the notion that “communicate this content with old tech” claims don’t raise First Amendment problems (as if that wasn’t obvious already).

                  Fixed. Enjoy.

                9. You are “right there” but empty handed while boasting how much is out there.

                  Do more than boast.

                  (and you are well aware that the sense of “not there” or running away is figurative, right?)

                10. …that “everyone can see it” is not in your favor.

                  It’s amazing that you still want to pretend otherwise.

                11. that “everyone can see it” is not in your favor

                  It’s not about “me”, “anon.” This is where you seem to get frequently hung up.

                  Here’s the claim:

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

                  Can you see the First Amendment issue with the government handing out an entitlement to that claim? Imagine, e.g., that the government owns the entitlement itself.

                  I’m pretty sure that everyone else can spot the issue. I’m happy to learn otherwise.

                  But can you see the issue?

                  Simple straightforward question. Yes or no.

                12. YOUR statements about the law ARE about you.

                  I have already told you that I am speaking at a higher level than the immediate claim – please move the goalposts back to our discussion.

                13. I am speaking at a higher level than the immediate claim

                  Again: we can all see exactly what you’re doing, “anon.”

                  Dennis can see it. Jason can see it.

                  Everyone can see it.

                  But I’m the “bad guy”, right?

                14. Yes you are.

                  Clearly.

                  Now will you provide what I asked for? From your boasting, this should be very easy for you, so I am having a difficult time understanding your reticence.

                15. will you provide what I asked for?

                  Oh, you’re going to get much sooooo much more than what you asked for, “anon”!

                  Like I said years ago: these issues are *never* going away until “do this logic” and “communicate this” “on a computer” claims are expunged from the system.

                  And yes that process of expunging is happening as we speak.

                  You should feel free to look for these “past court cases” on the relationship between free speech and patenting knowledge if they really interest you. They’re not really interesting to me because (plainly) that they’re not necessary for the arguments. We have the First Amendment and we have common sense and reason. That’s all anybody needs.

                  Fyi, you’re going to be seeing my hypothetical claim a lot, “anon,” so you and your fellow travelers who are so shocked (shocked!) by all First Amendment stuff better come up with some compelling responses. You guys reacted the same when the problems with Mayo’s claims were set forth for you in unambiguous terms, i.e., you whine and cried and did everything you could to avoid addressing the issue. And then you lost, bigtime. And you lost again, bigtime. And you’re going to lose again, bigtime, unless you come up with some good arguments that address these issues squarely. I will tell you frankly that you are going to have great difficulty coming up with those arguments. Can you guess why?

                16. So you don’t have any corroboration.

                  And now you want me to find some for you…

                  What an Fn blowhard.

                17. you don’t have any corroboration

                  I don’t know what’s out there. I wouldn’t be suprised to find plenty of “corroboration” (certainly plenty of implicit “corroboration” by virtue of the same words being used to describe the principles at issue).

                  Besides, as I already wrote, I don’t need any “corroboration” for the proposition that patent claims are bounded by the First Amendment and can, in fact, raise First Amendment issues. Plus I have Mayer’s opinion on the subject. Last time I checked, Monday is “in the past.”

                  now you want me to find some for you

                  I don’t recall asking you to fnd any “corroboration” for me. You’re the one demanding “corroboration”. As is plain from the many discussions over the years and recently, pretty much can see the relationship once its pointed out to them. As has already been pointed out, the courts have, numerous times (consciously or subconsciously), gone out of their way to avoid explicitly addressing the First, choosing instead to couch their opinions in other language.

                  That era is over. Thank you, Judge Mayer. Kudos.

                18. Read again what you stated and what I challenged.

                  Now you saying that you don’t even need corroboration – LOL.

                  You
                  Are
                  Clueless

                19. Victory…?

                  In my own mind…?

                  You are projecting again (must be that you feel that you have – gasp – lost at something…)

                  Don’t worry – your lack of ability to actually put your ego in check will soon show up and you will once again feel not compelled to follow any rules or norms in your self-appointed field of rye protection duties.

                20. Whatever “victory” you think you’ve achieved, “anon”, please bask in it deeply! You’ve definitely earned it in your own mind.

        2. 7.1.1.2

          “The government can’t turn me and my friends into “trespassers” because we use old communication technology to communicate information about “programs” or anything else. But that’s what’s happening when the government hands out these entitlements. ”

          Sure it can. Just as it can require “protest zones” in cities holding conventions. The Government can wall you off from providing a program code etc… You are still free to accept anonymous response data via hand delivery at decentralized locations. You have your freedom of speech.

          That said, this claim does appear to read on mailing a letter to a TV show producer discussing an episode of the show. So, 102 or 103 should serve your purpose.

          1. 7.1.1.2.1

            Sure it can. Just as it can require “protest zones” in cities holding conventions.

            Pretty sure that there is a huge difference between (a) balancing law enforcement issues and the First Amendment and (b) a blanket prohibition on posting negative facts about someone.

            But at least you appear to implicitly recognize that there’s a First Amendment issue. Baby steps!

            For what it’s worth, the details of the content in the display limitation aren’t particularly critical to the analysis. Instead of negative facts about Trump, it could be “story about orange and pink unicorns”. Same result (huge First Amendment problem).

            102 or 103 should serve your purpose.

            Maybe. That would depends on how detailed my description of the displayed information is and also on the secondary factors. The point of having a subject matter eligibility bar, of course, is that we never bother with that when the point of novelty is in the content. The level of detail is irrelevant. See, e.g,. Mayo (9-0, and never ever going to be undone). This is also why the McRo “test” is d.o.a. and is going to be chucked in the trash heap shortly.

            Am I mean to say all this? Dennis? Am I being too mean here? Am I being “intellectually dishonest”, Dennis?

            1. 7.1.1.2.1.1

              The level of detail is irrelevant.

              By the way, if you don’t understand why the level of detail doesn’t matter (for either the First Amendment, or patents that take information out of public domain “tech” contexts, or eligibility issues generally) I’m happy to explain that to you and everyone else for the ten billionth time.

              It’s pretty straightforward. Mayer’s on top of it, and so are the Supremes.

              Just ask.

      2. 7.1.2

        Sharing your feelings and ad hominem again – without more – is just not helpful.

        You are the very last person on earth qualified to lecture others on that topic. In a few moments, we’ll all see why.

        Again.

        1. 7.1.2.1

          …and that did not take long for the Malcolm meme of

          A
          O
          O
          T
          W
          M
          D

          to pop up.

          Again.

          Yay ecosystem!

            1. 7.1.2.1.1.1

              LOL / wow, you can predict that I will call out your use of the banal

              A
              O
              O
              T
              W
              M
              D

              You must be Nostradamus.

        2. 7.1.2.2

          Posted by “anon” at 11:50 a.m.: Collins has no clue

          No explanation provided for “anon”‘s insult.

          Yet somehow “anon” feels entitled to run around and lecture others about “sharing their feelings.” Note that this particular insult was posted moments after it was predicted that “anon” would prove himself to be a hypocrite. And voila! Like clockwork.

          And this has all been observed before, and predicted.

          1. 7.1.2.2.1

            There is nothing at all hypocritical with the observation that Collins lacks any tie to the Art, or appreciation of the patent aspects of that Art.

            Your “say-so” otherwise is itself meaningless.

            1. 7.1.2.2.1.1

              “anon” There is nothing at all hypocritical with the observation that Collins lacks any tie to the Art, or appreciation of the patent aspects of that Art.

              Exactly which “Art” do you believe Kevin Collins is “clueless” about, “anon”? All of them? Or just the “Art” of processing information?

              Tell everybody the basis for your statement that Kevin Collins is clueless about this “Art.”

                1. Here’s the answer, folks:

                  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.

                  Try to believe it. And of course there’s no basis for “anon”s insult of Collins knowledge of any “Art” .

                  But “anon” is not a hypocrite! Nope. He’s a real classy guy.

    2. 7.2

      Well, it sounds a lot like voting someone off the island… but I don’t see why it would fail 101. Its a method. It is tied to a machine. It transforms the recipient from ignorant to knowledgeable about the response data. Why is there a 101 issue?

      1. 7.2.1

        I don’t see why it would fail 101. Its a method.

        That’s not dispositive for reasons that have been set forth for you 1000 times. Right, Dennis? Right, Jason? Am I mean to point this out?

        Does anyone find it odd that Les would repeat this “argument” when he knows it’s a non-starter? Anyone?

        It is tied to a machine.

        Again: not dispositive. Basic patent law. Example: Using a phone to tell a story about your divorce is equally “tied to a machine.” That’s also an ineligible claim.

        It transforms the recipient from ignorant to knowledgeable about the response data.

        And a dictionary educates you about words. Still not eligible.

        Am I “mean” for pointing this basic stuff out to you, Les? If you keep asking the same questions 1000 times as if they were never answered before, do we have to keep taking you seriously or can you fairly be labeled as a tr0ll who’s primarily interested in tr0lling?

        The analogy here would be if Dennis had a blog about equal rights and discussoin about the most discriminatory legislation imaginable was endlessly sidetracked by a handful of k lan members asking why it wasn’t okay to treat blacks like animals because “skilled artisans” know they’re not True Humans. That is seriously what it feels like discussing subject matter eligibility with the likes of you and “anon” and your fellow travelers.

        I know that it must hurt to have your entitlements taken away. Rest assured you’re not the first people to whom that has happened. But you are almost surely the richest people to whom that has happened.

        1. 7.2.1.1

          you keep asking the same questions 1000 times as if they were never answered before, do we have to keep taking you seriously or can you fairly be labeled as a tr0ll who’s primarily interested in tr0lling?

          The irony is stultifying.

        2. 7.2.1.2

          “Again: not dispositive. Basic patent law. Example: Using a phone to tell a story about your divorce is equally “tied to a machine.” That’s also an ineligible claim.”

          You are mistaken. It IS eligible. However, it is anticipated.

        3. 7.2.1.3

          See for example, claim 19 and the scenario where the member profile information includes marital status and the sordid story thereof:

          19. In a network including a plurality of network devices operated by a plurality users, a method for granting access to member profile information that provides for selective real-time information exchange of the member profile information between network devices comprising the steps of:

          selecting, by a member, at least one data element associated with the member;

          selecting, by the member, at least one other member to which to grant access to the selected data elements;

          for each data element,
          retrieving an encrypted secret key associated with the data element and the member;

          decrypting the encrypted secret key with a private key associated with the member; and

          for each selected member,
          encrypting the secret key with the member’s associated public key; and
          storing the encrypted secret key and the member’s identification number in a database.

          US6820204B1

          link to patents.google.com

  4. 6

    This Fed Cir. decision of “Because we hold that Form 18 does not apply to
    claims of joint infringement” is a waffle on the much more important issue of why the prior decisions of the Fed. Cir. approving bare bones FRCP Form 18 infringement complaints are not overruled, as was clearly intended in and by the complete elimination of Form 18 last year! As noted in earlier blogs here on that subject, the effect of that elimination was intended to apply to pending suits still at the pleading stage as well as to complaints thereafter.

    1. 6.1

      I agree Paul.

      That change was intended to capture everything “in process” still at that pleading stage.

  5. 5

    “must provide factual allegations at the claim-element-by-claim-element level” is an overstatement.

    The quoted portion of the decision, the ratio, states that it is there is an *absence* of evidence of particular types and that the absence of that evidence fails to positively amount to a basis of a “reasonable inference” that each claim step was made.

    What amounts to forming such a basis for “reasonable inference” is not narrowly defined by this excerpt as factual allegation “at” a claim-element by claim-element “level”.

    The allegations must amount to “a basis for a reasonable inference” that each claim step was made, and that is all.

    “There are thus no allegations in the Amended Complaint that can form the basis of a reasonable inference that each claim step was performed by or should be attributed to Defendants. The Amended Complaint fails to plausibly plead sufficient facts to ground a joint infringement claim”

  6. 4

    Come to think of it, if the pleadings are now forced to a claim by claim mode, can the Court still do its “Gist” thingie?

    1. 4.1

      That should read “claim element by claim element.”

      One of the complaints about the Court’s new weapon of choice, the “Gist/Abstract” sword, is that the courts have been deciding (as opposed to how the Congress set up the system with the inventor deciding) what the invention is by taking a “directed to” approach and simply not recognizing all of the claim elements.

      Will the courts be able to continue using the “Gist/Abstract” sword if the complaint on its face now has those elements (previously “Gisted” away)…?

    2. 4.2

      Come to think of it, if the pleadings are now forced to a claim by claim mode, can the Court still do its “Gist” thingie?

      Courts remain free to ignore excessively scrivened abstractions and otherwise ineligible claim elements when they compare the claim to the prior art in the course of an eligibility analysis.

      The claim at issue here, for instance, is directed to collecting information “about a program” using prior art technology. It’s ineligible junk.

      But if the patentee can’t provide any evidence that one of the accused parties is, e.g., “collecting data about a program”, then we don’t even get to that point.

      In short, nothing about the subject matter eligibility analysis is changed by this.

      1. 4.2.1

        The Courts are NOT free to characterize claim elements as “excessively scriven” and make items (now) directly pled “disappear” in a haze of “directed to” or “Gist.”

        Congress has set forth exactly who gets to define the invention – and that setting forth dictates that the invention needs to be read as the claim as a whole.

        The problem you (still) have with your “compare to prior art” is that the “directed to” and “Gist” mess is making actual claim elements (even those that may be claimed in the optional claim format of “objective physical structure”) disappear (in the patent sense) into being some (undefined) state of being “Abstract.”

        I am talking larger than merely “the claims at issue here,” Malcolm.

        And there certainly IS a change. This new pleading item explicitly calls out – as factual elements – things that the broken scoreboard courts (and yes, the issue is present that the scoreboard is broken – please, please, please, take note of this BEING an issue) have now to for been waving a magic wand (sword) over.

        You have managed nothing more here than to restate the “look at the broken scoreboard” mantra, and have added nothing to the new discussion point (while – again – ig noring a critical piece of the broken scoreboard).

        That’s kind of why I asked for others besides you to comment. You are unable (or unwilling) to move the conversation forward.

        1. 4.2.1.1

          The Courts are NOT free to characterize claim elements as “excessively scriven”

          Of course they are free to do characterize claim elements as “excessively scriven.” There’s no reason a court can’t do that.

          make items (now) directly pled “disappear” in a haze of “directed to” or “Gist.”

          Again, ineligible elements layered on top of existing technology is the number one sign that the claim is ineligible. We all know you don’t understand or “like” the analysis, “anon”, but that’s the analysis. And it’s not going away.

          [shrugs]

          1. 4.2.1.1.1

            And your “analysis” is NOT “the analysis.”

            It is merely a symptom of the broken scoreboard.

            1. 4.2.1.1.1.1

              your “analysis” is NOT “the analysis.” It is merely a symptom of the broken scoreboard.

              And this is where it’s pretty clear that I’m arguing with either a crazy person, or a person who is wrong but can’t admit it. Which is it? Should anyone care?

              You’re just spewing gibberish. Broken scoreboard? What?

              1. 4.2.1.1.1.1.1

                Gibberish?

                The Vinnie Barbarino meme is right off of your stale short script.

                You were saying something about “round and round”….

                (Reminds me of a certain case in which you played the same game when you could not understand why the word “effectively” meant)

        2. 4.2.1.2

          You have managed nothing more here than to restate the “look at the broken scoreboard” mantra,

          And you sound like a crazy person, “anon.”

          [shrugs]

          1. 4.2.1.2.1

            This is the exactly the mindless and baseless ad hominem that was just wiped out.

            Even the rules as applied somehow (in Malcolm’s mind) do not apply to Malcolm….

            (trying the same thing and expecting different results, Prof, well – you know)

            1. 4.2.1.2.1.1

              baseless ad hominem

              There’s nothing “baseless” about noting that your comments are filled with nonsensical self-referential hoohaw that has absolutely no meaning to anyone but yourself.

              Broken scoreboard! Broken scoreboard! You keep saying this to everyone who disagrees with you as if it has some meaning. But it’s pure nonsense. It’s crazy person talk.

              I’m just calling a spade a spade, “anon.” You’re always free to change your behavior.

              1. 4.2.1.2.1.1.1

                The problem though Malcolm is that my comments simply are not as you try to mischaracterize them.

                All that you are doing is continuing the blight that was just wiped out this morning – unthinking as usual.

                Yay ecosystem!

                1. my comments simply are not as you try to mischaracterize them.

                  They’re exactly as I characterize them.

                  We call all see that. Just read them for yourself.

                2. Except not, Malcolm.

                  The world simply is not as you perceive it to be (and “rules” such as they are – really do apply to you. You apparently did not learn that lesson this morning, now did you?)

      2. 4.2.2

        “The claim at issue here, for instance, is directed to collecting information “about a program” using prior art technology. It’s ineligible junk.”

        It is a method. IT IS NOT INELIGIBLE. It is perhaps anticipated or obvious.

        1. 4.2.2.1

          It is a method. IT IS NOT INELIGIBLE.

          Repeating a nonsensical “argument” in capital letters doesn’t make it sensical.

          Is it mean to point this out? Dennis?

          1. 4.2.2.1.1

            ““The claim at issue here, for instance, is directed to collecting information “about a program” using prior art technology. It’s ineligible junk.”

            Repeating a nonsensical declaration of “ineligible junk” over and over doesn’t make it sensical.

  7. 3

    Ignoring the humongous eligibility problems, does anybody spot a First Amendment issue here?

    My friends and I can’t collect and process information “about a program” using standard communication devices? Because the government handed out an entitlement to some b0ttom-feeders?

    Oh, 2017 is going to be the worst year ever for the most entitled whiners ever. Fun, fun, fun!

      1. 3.2.1

        You are free to collect and process information some other way.

        Unfortunately, that’s not how the First Amendment works.

        Example: The government can’t take away my right to talk about Donald Trump using a printing press and justify that prohibition by saying “You can still use your voice.”

        It’s really amazing to see resistance to the most basic propositions imaginable but then again I’ve been continually amazed for years now by what the defenders of the Worst Patents Ever manage to come up.

        Is is it really hard that too admit the plain truth?

        1. 3.2.1.1

          Is is it really hard that too admit the plain truth?

          LOL — should be: Is it really that hard to admit the plain truth?

        2. 3.2.1.2

          Example: The government can’t take away my right to talk about Donald Trump using a printing press and justify that prohibition by saying “You can still use your voice.”

          And yet you told Robert K that he did not have “the right argument.”

          Sure as shoot like you just used exactly the argument that he was talking about.

          Oopsie for you.

        3. 3.2.1.3

          The Government can and does say: You can’t protest over here by the convention center, where the people you want to convince might actually here you. You can protest over there, 5 blocks away, where only the homeless, lost tourists and those waiting to speak after you will here you. They do it all the time.

          The Government also says, you can’t bring a sign on a stick in here. And I’m sure I saw the police dragging protesters out of Trump rallies several times this year.

          …while I’m not aware of a Government shut down of a printing press, I’m sure there are government restrictions on how you distribute your printed vitriol…

  8. 1

    I expect that Lyda can refile and just potentially lose some of the back damages.

    Oh, they can potentially lose a lot more than that.

    Shall we take a look at the claims?

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