Citing to Supreme Court’s Eligibility Cases

The chart below shows Shepard’s citation results for recent Supreme Court eligibility cases.  I chart the number of federal court decisions citing to each of these seven major Supreme Court decisions.  2016 numbers do not include November-December 2016.

Citing101DecisionChart

* I apologize that the chart won’t be easy to read for those who are colorblind. Truthfully, it is hard for anyone to tease out information regarding any particular decision.

About Dennis Crouch

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

101 thoughts on “Citing to Supreme Court’s Eligibility Cases

  1. >>MM: Information and logic are different.

    This is getting surreal that the anti-patent judicial activist are now spouting this.

    0) A computer is not logic. A computer can be represented as logic just as the chair I am sitting on can be represented with static equations.

    1) Deener was perhaps the first case that actually addressed this issue of the difference between an algorithm (e.g., MM’s “logic”) and the information that the algorithm operates on. In Deener there was a comment that it shouldn’t matter the type of grain that the grain processing was performed on. That there shouldn’t have to be a patent for each type of grain.

    2) At the time of Benson, the real intellectuals –not the Lemley and Stern type who are unethical and could care a less about reality or ethics—were arguing that the way forward with information processing patents was to recognize algorithms as processing information like Deener processing grain. The anti-information processing patent judicial activist like Stern were dead set against this position and generated the center of all ev1l in Benson.

    3) The way forward from Benson and Alice was to contextualize the algorithm to the information that it processed.

    4) Now, the ant-patent judicial activists feeling satisfied that algorithms have been excluded, are flipping their position at 2) and trying to separate the algorithms from the information like the true intellectuals said should be done before Benson.

    Just absurd and clearly nothing more than contrived nonsense to try and generate a justification for new laws from the judiciary.

    1. And, please, MM spends 40 hours a week blogging and we are expected to believe he is not a paid blogger? Seriously?

    2. A computer is not logic. A computer can be represented as logic

      Not the issue. Not even close.

      the chair I am sitting on can be represented with static equations

      Pay attention, folks! He’s a deep, serious person.

      the real intellectuals

      LOLOLOL

      were arguing that the way forward with information processing patents was to recognize algorithms as processing information like Deener processing grain

      The way forward? Information processing and algorithms are ancient. They pre-date the patent system. The patent system was designed to protect structurally distinguished machines (including the kind that process physical matter like grain), and machine-independent processes that transform physical matter. The system could have been set up to protect logic and information, but it wasn’t. Your “way forward” is really a “way backward.” And backwards is exactly where the patent system went. We did the experiment. Now we’ve got an incredible mess to clean up.

      If anybody needs to remind themselves of how farcical the system has become, check out Judge “MY KIDS LOVE THIS!” Moore going off the rails (again) in this Neftlix v. Rovi oral argument:

      link to courtlistener.com

      1. Zero substance to your response.

        0) A computer special purpose or general purpose plus functionally related instructions has structure. Is there a structural difference between a two parallel capacitors and two serial capacitors? Of course.

        Again, MM, you are joke. You just make absurd statements that are counter to science and the practice of technology. Your spouting only is bought by those who have an agenda or those that are ignorant and cannot discern that you are telling us that the Earth is at the center of the Universe.

          1. it is highly likely that Google pays at least part of MM’s salary

            Right. They don’t pay for the part where I regulary trash their “self-driving car” “techn0l0gy “and all the incredibly junky patent claims that they’ve filed.

            But they pay for everything else.

            Sure, that makes total sense! You’re a real sharp c00kie, NWPA! The best and the brightest ….

        1. And, let’s all note that MM did not respond to the chair being represented by static equations. The fact is that inventions can be represented differently depending on what is most convenient. And that the representation is not the invention.

          Please Dennis–restrict MM’s use of this blog to something appropriate for a paid blogger. Maybe limit him to 5 posts a day with only responses.

          1. MM did not respond to the chair being represented by static equations.

            LOL

            It’s true! I didn’t respond to that. Therefore it must mean that it’s the greatest argument ever.

            LOLOLOLOOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

  2. Since Ned mentioned free trade and Trumps victory I will tie it into patent law.
    1. Imagine free trade agreement ABC makes the US richer by $1bn and China richer by $1bn. (This is because each country specializes in what it makes the most efficently. Its basically free money from more efficent allocation of resources)
    2) People on the East coast become $1bn richer because they make more of what China wants and people on the West coast become $1bn richer because of the same reason.
    3)People in the middle of the country become $1bn poorer because they used to make what China makes now.
    4)US as a whole is $1bn better off however the people in the middle are worse off.
    5)Its all a lie. Instead it is technology replacing jobs with machines and computers thats the big problem not foreign trade.
    6)Patents on logic and infomation implemented on general purpose computers will slow down the replacement of jobs with machines since any possible use of a machine to replace a worker can be claimed simply by describing a machine which does the same thing as a worker For example: A system for controlling a robot configured to collect garbage consisting of one or more sensors, a main module configured to receive signals from the sensors, a rules database accesed by the module and a signal module connected to the robot wherein the main module combines the signals from the sensors with the rules from the database to control the signal module to send control signals to the robot to efficently collect garbage.
    7) A claim like this could slow the robot garbage collector industry by years, saving 100000s of job years for garbage collectors.
    8) Therefore Trump should appoint judges who will overturn Alice in order to tie patent law in knots and grind technology to a halt.
    9)Peace. Drop mic. Exit.

        1. Yes, but then Slashdot Reader you are just a dupe. You don’t get that the reason the engineers in the U.S. still have some money and can still share their work is patents.

          Wait until trade secret law really kicks in and you will be coming back here begging for a way to bring back patents.

    1. Funny stuff, SD.

      And I see you’ve got the claiming game down. Well done.

      But since the sarcasm is sure to fly over a lot of heads, let’s just throw in a friendly reminder: here on Earth, people are going to be needed to build stuff (and do stuff for other people) for a long, long, long time.

  3. It’s a bit s ad to see patent attorneys struggling with historical context.

    Information and logic are different.

    When the patent system becomes overwhelmed with junk claims directed at information processing and logic (in addition to other abstractions) and patentees start creating a new industry out of sueing people with those junk patents, what in heck do you expect is going to happen.

    Tell us what you expected, elites. Tell everyone.

    We can all see how you behave when your entitlements are taken away.

    Maybe Trump will give them back to you. He’s going to be giving a lot of other stuff back to the richest people in the world. Because they’re very important! Just like Trump.

    Oh, this is going to be fun to watch.

    Try to do a better job explaining stuff to your readers, Dennis. Please.

      1. Yes, I’m over-educated and I get paid a decent wage. I worked my tail off for that. Neither of my parents was college educated, nor were their parents, and none of them owned a business. They were working class, when they could find work. When they couldn’t find work, they were just poor. I was lucky enough to grow up near a good public school, plus I never had to worry about cops profiling me when I was hanging out and having fun. It wasn’t until I moved away (long ago) that I met a whole other world of non-lily white human beings and learned that we pretty much all want and need the same basic stuff.

        Among many other things, fighting to make sure that other people have access to the basic stuff and opportunities to see the best in people has been a big part of my life. Also, I really couldn’t give a sh-t about whether someone’s right to keep every penny of their second million or their 20th million is being “weakened.” I never could figure that out but it’s seems really important to a lot of people, including a lot of patent attorneys.

        Anyways, my point about the elites is that Donald Trump is one of them. He may also be a disgusting misogynist racist s 0ci0path and I realize that has a great deal of appeal for a lot of Americans. But he is definitely one of the elites and we can all watch him surround himself and give jobs and gifts and handouts to more and more elites in real time.

        Oh, this is going to be so fascinating to watch.

        1. Thank you – at least – for fleshing out your feelings a little bit more.

          Of course, your feelings really have nothing to do with facts or law.

          1. The fact that information and logic have always been and necessarily must be treated differently by a sane patent system is just that: a fact.

            Refusing to admit it and refusing to address it is your problem.

            Crying that you’re going to take your football and go home because you’re the most important person ever and we’re all going to be Amish if you don’t software patents: those are your feelings.

              1. Software is instructions for applying logic to data processing, where the instructions are carried out by machine that is built to carry out those instructions.

                Now do that cute little dance you do, “anon.” Wheee!

                1. I have no “cute little dance.”

                  I do have the reply that you never seem able to cope with: the inherency doctrine; couple that with the question as to how [Old Box] comes to have new capabilities not previously present, capabilities introduced by the manufacture (as that term is well understood in the patent sense) and machine conponent known as software, and we see you become quite absent from any continued discussion on the merits.

                  Again.

                2. discussion on the merits.

                  LOLOLOLOLOLOLOLOLOLOL

                  Tell us more about the awesome “new capabilities” of your old box, “anon.” Deep, deep stuff.

                3. It is your meme, Malcolm.

                  I just keep on trying to get you to complete that meme with the proper legal understanding of the doctrine of inherency.

                  You
                  Always
                  Run
                  Away

                  (Your poker tell of “deep stuff” does not help you)

                4. I’m right here “anon.”

                  You aren’t saying anything. I’m not going to make your crxppy arguments for you. You have to make them yourself.

                5. You are “right there” but empty handed and refusing to engage on the merits in any sense of inte11ectual honesty.

                  As I have explained previously, the “run away” comment is not to be taken literally.

                  But you already knew that, eh pumpkin?

                6. And I have said plenty – it is you and your CRP arguments that are in the spotlight.

                  And you already know that as well (or at least should).

        2. Look, I don’t want in any way be interpreted as supporting DJ T, but:

          The Hillary Clinton net worth total of $31.3 million comes from analyzing her Public Financial Disclosure Reports. Bill Clinton has an estimated net worth of $80 million. That gives a combined Bill and Hillary Clinton net worth of $111 million .

          Hillary Clinton Net Worth – Money Nation
          moneynation.com/hillary-clinton-net-worth/

          … and, you know, DJ – T owns and runs a few businesses while HRC has been earning a government salary…. one wonders, does one not, where the money came from….

          1. I’ve no idea what your point is, Les. Yes, there are rich people! Yes, some of them are career politicians! Yes, some of them are former Presidents who were wildly popular and they wrote best-selling books! Thank you so much for clearing that up.

            Three other points:

            (1) I never suggested Clinton was not an “elite.”

            (2) pretty sure neither of the Clinton’s were out there peddling a plan to lower taxes on the the biggest income earners, and I know they aren’t Norquist N tb@lls or delusional trickle downers.

            (3) remind me again about Donald Trump’s finances and business operations. For some strange reason, I can’t even remember what we found out when he released his tax forms (because the “liberal media” insisted that he do that). Can you refresh everyone’s memory, Les? I’m sure you can because you’re a very serious person. Look at all the numbers you just cited! Impress us all.

              1. Did I touch a nerve?

                Don’t flatter yourself, Les.

                What did I do to deserve that rant

                You engaged in some bizarre false equivalence horseshirt that wasn’t even relevant to the topic.

                Trump is the President-elect. He was elected by racists and misogynsists and a bunch of ign0rami who were duped into believing that he was going to send some kind of message to “the elites.” Well, he’s going to send a message. The message is: “I love you, my fellow elites. Here’s some more money.”

                I don’t care how much money Bill Clinton makes. Why on earth would I? Why would you bring that up?

                1. I brought up how much Hillary is worth. Since she is married, her marital assets are relevant. Your post implied that you thought Hillary was a better selection. However a good chunk of her fortune was made by “giving speeches” the the elites of Wall Street. She must talk pretty pretty good. I thought maybe you didn’t know that…. so, I pointed it out…. that’s all.

                2. a good chunk of her fortune was made by “giving speeches” to the elites of Wall Street. She must talk pretty pretty good. I thought maybe you didn’t know that

                  LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

                  Think again, Les.

                  Your post implied that you thought Hillary was a better selection.

                  The election is over, Les. Yes, Hillary was a better selection. But there’s nothing in my comment that has anything to do with Hillary. I was talking abou the President-elect of the United States who, if you believe him, is worth $10 billlion (that’s about 100 times the net worth of the Clintons, combined, in case you have difficulty with the math).

                  In addition to capturing the hearts and minds of racists and misogynists everywhere, Trump also sought the favor of a group of ign0rami who somehow believed that this soft-fingered swindler was going to do something about “elites”. Well, he certainly is going to do something about them: he’s going to surround himself with them, and give them lots of money. Because he’s an elite himself.

                  Again: kind of mind-blowing that I have to educate a person who (theoretically) should be aware of these basic facts. Or maybe I hit the wrong button and I’m in some Yah00 chatroom?

                  Once again in case you missed it: Donald Trump won the election. You can stop worrying about Hillary’s money now. There are much more important things to worry about.

        3. Also forgot to mention: affordable college tuition was key. I had maybe $500 in graduation gifts, an equally microscopic “scholarship” for my grades (top three in my class), and nothing else. So I took advantage of every government grant and loan I could get, lived in shared brokedown housees eating canned food for four years and still finished with a $20K credit card debt. I didn’t finish paying the loans off until after graduate school when I got a “real job.” Another huge stroke of luck: no major health problems.

          I would guess the financial pain would be at least twenty times worse for someone in my situation attempting to do the same thing now. This is a huge problem. But it’s fixable. Do you know why it’s fixable? Because there’s some phenomenally wealthy people in this country that can afford to share. I know I can and I don’t even have 0.1% of the amount they have.

          Oh but wait! First we have to give those super wealthy people even more money. Because they totally deserve it and they worked sooooooooo much harder than everyone else. Like Donald Trump. Just a regular old honest hard working guy. We could all be like him, if only we weren’t so lazy.

          1. Your ego and over inflated sense of “self-sacrifice” have zero to do with patent law.

            Your sense of elitism, well maybe, but I really do not care how you came to be how you are.

            1. Friendly reminder, “anon”: the reason this comes up is because you and your software patent lovin’ c0horts love to pretend that you’re being oh-so-unfairly persecuted. “It’s so unfair! Wah! Wah! Wah! We didn’t see it coming! What’s happening? What’s happening? Wah! Wah! We’re going to stop the world and nobody is going to innovate unless you give us what we want! Wah! Wah!”

              The reality is that you’re just a bunch of rich greedy entitled creeps with cr@ppy arguments. Thankfully your ridiculousness is well documented so we can all have a laugh at your expense when your house of cards comes tumbling down.

              1. I have engaged in no manner that you describe.

                Your views are of course tainted by your bias.

                Maybe you want to stop pounding tables so much and revisit the law as written by Congress and the facts as understood by Persons Having Ordinary Skill In The Art….

        4. Nice statement of liberal values MM.

          There is a non trivial chance Trump will be OK as President. Of course the probability is that he will be a catastrophe.

          As to your point that information and logic are different; why not just say information? Logic is the process (and result) of arranging information in useful ways. As of yet, no court decision or statue clearly makes information different.

          Those decisions and laws SHOULD be made, but have not been made.

          This problem of information as an abstraction has been totally conflated with the problems of obviousness and written description when dealing with information based inventions.

          All information (i.e. and logic) are abstract. Some information is new, useful, and non-obvious. There are different views about how to handle that dichotomy, but to me, it’s essential that the Alice test not be one of eligibility, but rather one of patentabilty, applied in a structured process equivalent to claim construction whereby all method patents are construed as to the nature of the result, with the eligibility and patentability inquiries separated- as the patent act seems to suggest in its written structure.

          Until this happens, every single district court 101 motion is just rolling the dice. That should not happen in a rational system.

        5. MM, nice history lesson about yourself. It is shared by many, many of us, but maybe not to the same degree. You should be congratulated, though, on what you achieved.

          I agree that Trump is one of the elites today, is a self promoter, remarkably thin-skinned, crass, and somewhat oblivious that to the fact that when he speaks like he does in a very non-PC way he sounds to others like he is a biggot. But, as time goes on, he definitely has toned it down. Hopefully, we will never again hear some of the ridiculous things he has said in the past.

          But, what I and six and others have been trying to impress on you though is that this election was not all about race. This is about the consequences of free trade on the working people of the United States. I think we have to carefully consider what is happening here and whether it is good to go forward with free trade deals, or to make them fair trade deals. This is an issue that should be discussed seriously and should not avoided by thinking that the whole issue in this election was about race where the vote split one way or the other depending.

          I saw a nice piece in the Wall Street Journal, Christopher Mimms, “New Populism and Silicon Valley on a Collision Course” link to wsj.com. It describe the issue here quite well, including the bit about how the elites do not seem to “get it.”

          “It’s crazy to me that people in Silicon Valley have no idea how half the country lives and is voting,” said Ben Ling, an investment partner at venture firm Khosla Ventures. Many “coastal elites” attribute the results “to just sexism or racism, without even trying to figure out why [people] wanted to vote for Trump.”

          1. Ned: this election was not all about race.

            Oh, gee, thanks, Ned. It doesn’t change the fact that a big part of the election was about race, and it doesn’t change the fact — an indisputable fact — that Trump created his base by pandering to white nationalists, racists and misogynists and he rode that base into the White House. I understand why you don’t want to talk about that but I’m never going to stop talking about.

            Also, I know exactly what the ignorami “anti-elitists” are complaining about because I’m related to many of those people. Some of them are in my immediate family. Also in my immediate family: racists and misogynists. I know exactly what their “issues” are. I also know that they’re cl ue less. But everybody gets to vote! Maybe they’ll change their tune when their kids arms are blown off in some pointless war, or when they lose everything because their healthcare was taken away and they got sick. Or maybe they’ll just blame that on brown people. I mean, why not? Totally legitimate view, right? Right, Ned?

            “It’s crazy to me that people in Silicon Valley have no idea how half the country lives and is voting,” said Ben Ling, an investment partner at venture firm Khosla Ventures

            So says some wealthy shill to the Wall Street Journal. I know more people in Silicon Valley than probably anywhere on earth. Not a single one of those people “has no idea how half the country lives and is voting.” People in Silicon Valley know exactly how “they” live and why “they” are voting because (1) they fled those places and/or they have family living in those places (2) “those people” are in everyone’s faces 24 hours a day because the “liberal media” never stops pretending that the whines of white people are the most important whines ever. We had to listen to their very serious complaints about the first black President for a solid 8 years.

            This is an issue that should be discussed seriously

            Now? LOLOLOLOLOLOLOLOLOLOLOLOLOL

            Who’s going to discuss it? Trump? Newt Gingrich?

            LOLOLOLOLOLOLOLOLOLOLOLOLOL

            1. Also, I know exactly what the ignorami “anti-elitists” are complaining about because I’m related to many of those people.

              Take a deep breath and calm yourself.

              Then explain what you mean with the above statement, please.

        6. @ Malcolm

          I may from time to time disagree with you, but in future I will not say ANYTHING against you personally (hopefully I never have). And I fully see where you are coming from.

          1. And I fully see where you are coming from

            As if that means his wanton disregard for logic, facts, and law are excused with that understanding….

            NOT.

          2. Paul, we all disagree with each other here from time to time. Emotions at times get involved, but that is human nature.

            On the whole, I agree with MM on most patent issues, but not all. He seems very emotionally involved in this election because he cares deeply about some social issues. It seems that at times like this, the rest of us should simply step aside and let him vent.

      2. Also, “anon”, maybe you were so busy polishing their boots that you didn’t notice this, but pretty much all of the loudmouthed software patent maximalists out there (Quinn, Noonan, Sachs etc) are not only wealthy, but they are also “connected” to the PTO higher-ups. They talk. They’re on each other’s rolodexes. It’s a like a little boys club. And we don’t have to guess about what they talk about.

        So go ahead and tell everyone a story about the “elites”, “anon.” There’s a lot of stories going around, in case you haven’t noticed.

          1. sour grapes

            That’s pretty funny. Almost as funny as JNG telling me that I was “jealous” of the awesome tr0lling schemes that resulted in him being publicly mocked by a well-respected Federal judge. But not quite (that will be a hard one to top).

            Sorry, “anon.” You are the elites. We all know that your script says that More Patents On Everything, All the Time, and Easier to Enforce is something that the “common man” should heartily endorse. Because “every patent creates a job” or some equally silly nonsense.

            That’s what your script says. But we also all know that you and your c0h0rts are absolutely and completely full of self-serving bal0ney. And you’ve got plenty of money already. In fact, you’ve got more than just about everyone. But you never seem to be satisfied. You need more money and you need more junk patents. Historically huge amounts are just not enough! And you’ll do and say anything to get more cash and more power, as quickly as possible, and sc rew everybody else. Gee, this all reminds me of a certain type of personality that just floated up to the top of the punch bowl. Go figure.

  4. Here’s another fun exercise. How many of the cases pre-Bilski and pre-Alice had actual substantive 101 challenges that were being litigated? My guess is not many. These were probably tangential or buried citations.

    1. How many of the cases pre-Bilski and pre-Alice had actual substantive 101 challenges that were being litigated? My guess is not many.

      How many patent attorneys here understood the simple 101 issues in Metabolite Labs and Mayo before I explained it to them?

      Not many. And that’s not a guess.

      News flash: smart lawyers who see a massive systemic problem staring them in the face don’t roll over. They figure out the problem and they address it.

      The history of all this isn’t very difficult to follow, BB. And the whining about the entitlement being taken away was a very predictable part of the history. It’s one of the reasons that so many entitlements were handed out in the first place.

      Heckuva job, Kappos.

      1. smart lawyers who see a massive systemic problem staring them in the face don’t roll over. They figure out the problem and they address it.

        Oh, and the winning arguments aren’t eligible for patenting, nor is the logic relied on to arrive at those arguments.

        I’m going to leave the reason why to the Patent Everything screechers to explain, just as an exercise. It’s pretty clear that you guys need the exercise.

  5. “And with the soon-to-be-en-banc-denied McRo decision’s further confirmation, those inventions will once again be properly found 101 eligible left and right.”

    There. Fixed. Again.

    1. Cool. We have a prediction from the best and the brightest.

      Let’s see how that plays out. Oh, wait, we already know it’s wrong because there’s been at least a dozen Rule 36 affirmations of district court findings of ineligible junk in the wake of McWrong.

      And there will be more to come. Maybe as soon as tomorrow.

      But, hey, patent attorneys: be sure to advise your clients to Appeal!Appeal!Appeal! those online parchesi game management patents. Money in the bank. And that’s always a good thing from the account holder’s perspective.

  6. Pretty much what you’d expect when floodgates that should never have been opened are closed.

    Junk patentees are still pounding at the door.

    And the soon-to-be-reversed McRo decision notwithstanding, that junk is still being tanked left and right.

    Remember: Alice wasn’t needed, nor was Bilski. All you needed was common sense and the understanding that logic and information aren’t eligible for patenting (they’re notably absent from the statute).

    Then again, some folks have incredible difficulty with common sense. Heck, some folks still can’t articulate the facts and reasoning in Mayo, which was one of the simplest and most straightforward legal issues that the Supreme Court was ever confronted with. It’s a real mystery what their problem is. Who can imagine what the difficulty could possibly be?

    1. I think that everyone agrees that this is a floodgate issue – the questions are simply whether it was proper to open the floodgate. Note – although the ball was rolling with Bilski, it really took-off with Mayo and then Alice.

      Contrast current floodgate with the 1970s cases outcomes results of Benson & Flook.

      1. Maybe I wasn’t clear. Legal decisions (like Diehr and Chakrabarty) that are construed to open the floodgates to patenting everything result in claims being filed that … try protect everything (note, I’m focusing on eligibility here). The CAFC’s State Street decision (or the Supreme’s refusal to grant cert) should definitely be on this chart, by the way.

        So people just get used the entitlement. In this case, we’re talking about the richest people in the country, but they are The Most Important People so we have to expect that when their entitlement is taken away they are going to go ballistic and litigate until the cows come home. After all, they can afford to pay the lawyers.

        That’s what’s happening. That’s why the restrictive cases are cited so frequently but the preceding permissive cases were rarely cited. What’s to argue about when everything is ineligible because “it’s a process” or “it’s a thing”? I suppose there was “utility” but that door is also incredibly wide open and remains so. What’s the leading Supreme Court case on “utility”? Anybody know? It’s not cited very often ….

        Contrast this massive relentless legal resistance put up by a tiny tiny tiny well-heeled fraction of the population with what happens when (if) the ACA is repealed and millions and millions of people lose their health care. Oh, it’s going to be fun.

          1. Software innovation isnt the form of innovation most accessible to the non-rich.

            I’m really sorry, “anon”, that you and your litigious, entitled cohorts just happen to be way more wealthy than 99% of the country. It’s an unfortunate fact in many respects. But don’t despair! Just keep talking tough about “efficient infringers” and pretending that you’re going to trickle down on ’em. Anything can happen.

            1. Sure it is Malcolm.

              You want to posit a different form? Go right ahead.

              (Try leaving out your usual empty and pointless ad hominem though – if you can)

              1. You want to posit a different form [of innovation that is more accessible to the non-rich than writing software]

                Sure. Innovative logic that isn’t tied to software.

                Just one example.

                I already have done this exercise for you on numerous occasions.

                Now let’s watch you dance. Whee! You want me to play the violin or the penny whistle?

                1. Which part don’t you understand, “anon”? It’s hard to make it clearer without wasting everybody’s time.

                2. It appears that you think that “logic” in forms other than software is something that is not only eligible, but is more accessible as (patentable) innovation than software.

                  What else could you mean by: “Innovative logic that isn’t tied to software.“…?

                3. It appears that you think that “logic” in forms other than software is something that is not only eligible,

                  I’ve no idea what might have given you that impression when I’ve said the opposite a zillion times.

                  But you’re a very serious person! You totally don’t have a serious English language comprehension problem.

                4. Still waiting for you to explain your immediate statement, Malcolm:

                  Sure. Innovative logic that isn’t tied to software.

                5. I already have done this

                  Saying you have “already done this” does not mean that you have actually “already done this.”

                  This is just your fallacy response of “I’ve proven it – there I have proven it again – without actually doing anything even remotely close to actually proving anything.”

                6. saying you have “already done this” does not mean that you have actually “already done this.”

                  Deep stuff. But I’ve actually already dealt with your silly “accessible innovation” ba l0ney a hundred times over.

                  If you don’t remember it, you need to quit the drugs you’re on. But you do remember it. You’re just a path 0l0gical l i ar.

                7. Again, your version of “dealt with” is meaningless, given that your typical manner of “dealing with” is merely running away.

                  Actually facing up to the points I have presented, and doing so with inte11ectual honesty, is just NOT something that you have done.

      2. Just a further point of clarification (although this was probably clear): the “flood” is the flood of junk that flowed out of the PTO post-State Street and pre-Mayo/Alice (and that is still flowing now, thanks to the CAFC’s doomed-to-fail efforts to drive a truck through Alice).

        It’s junky patent claims from that flood that are so frequently being asserted, and therefore it’s no surprise that the recent restrictive cases are so frequently being cited against them. There could be a lot more “do it on a computer” cases since Alice that could have been the subject of Supreme Court decisions, but the cases are so hopelessy junky that the Supremes aren’t even interested in hearing them. Maybe some “expert” out there is keeping track of the cert cases that have been filed trying to get the Supremes to shrink Alice somehow. There’s certainly been a lot of Rule 36 Decisions from the CAFC …

      3. DC: although the ball was rolling with Bilski, it really took-off with Mayo and then Alice.

        Along with this graph, the peak allowance rate and the exploding grant rate are consistent with the collective realization that the entire system was beginning to swirl down the drain.

        You can’t patent everything. You can’t patent information. You can’t patent logic. You can’t patent “use an old detection method to look at this new thing I found.”

        It was a huge mistake to ever suggest otherwise. Now we have to clean up the mess. Alice isn’t going anywhere and as soon as its recognized that the CAFC has driven a truck through Alice, the CAFC is going to get hammered.

        [shrugs]

        1. Along with this graph, the peak allowance rate and the exploding grant rate are consistent with the collective realization that the entire system was beginning to swirl down the drain.

          There is so much that is wrong with this statement.

          First, be clear that this graph merely reflects the legislating from the bench and the broken scoreboard syndrome. The emphasis should be on why that scoreboard is broken and how to fix that broken scoreboard.

          The other graphs of “peak” allowance rate and “exploding” grant rate show the opposite of what your spin is attempting to show. It shows a clear correction from the Dudas Reject Reject Reject era. Keeping in mind the core purpose of the patent system itself and that innovation begets innovation, we should expect (and want) more and more patents over time. Further, there was NO “explosion” as the grant rate (grants pet applications submitted) did NOT explode. Not at all.

          You seem to not want to admit that a proper patent is a win-win. More of win-win is necessarily better for both sides of the Quid Pro Quo.

          But your mantra blinds you to this.

          You really need to get into an area of law in which you can believe in the work product produced.

          1. the grant rate (grants pet applications submitted) did NOT explode

            Grant rate is apps/year. Grants per app is the allowance rate.

            But you’re a very serious person! A real sharp … stick.

              1. “Grants per year” is rather meaningless.

                You need to norm that by applications per year.

                Under your attempted spin, the rejection rate has also “exploded.”

                But you leave that out and attempt to spin a different message.

                This is called being inte11ectually didhonest.

          2. Keeping in mind the core purpose of the patent system itself and that innovation begets innovation, we should expect (and want) more and more patents over time

            This is so mindlessly simplistic it’s not even worth addressing.

              1. It’s also “clear” that we all need to eat to survive.

                But that doesn’t mean we should shove tootsie rolls down every kids throat until they are stuffed.

                I know: too nuanced for you.

  7. Did you not bother to look for cites to Myriad, or were they simply so few as to be unworthy of mention in the chart?

      1. So Bilski gets cited more often than Myriad?!? Even though Myriad actually stands for something, while Bilski uses thousands of words to say nothing at all? That really hurts.

        1. Myriad was a fairly narrow holding, you’ll recall.

          Bilski gets cited more often than Myriad because there are way more junky cases being asserted that fall squarely within the Bilski/Mayo/Alice framework than there are claims that fall squarely within the Myriad framework.

            1. I guess my point is that I can see why folks cite Alice. Alice actually said something. Bilski used a lot of words to say nothing much at all. There is nothing established by citing Bilski and Alice that is not established by Alice alone, and nothing at all established by citing Bilski alone.

              I can easily understand why Alice is cited more than Myriad. There are more claims (especially of the sort that someone might care to litigate) that are invalid under Alice than under Myriad, so naturally one will cite Alice more often than Myriad, but why waste the ink necessary to cite Bilski.

              Unless they are citing the Bilski concurrence. Whatever other criticisms I might care to lodge at Justice Stevens’ Bilski opinion, he actually said something with all his words.

              1. Bilski stands for the proposition that not everything that is a useful process is eligible for patenting.

                Some people were confused about that. Bilski’s attorney was definitely confused about that.

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