We have a great turn-out and a good time at Emory. The panel consisted of me, an in-house lawyer for a big company, and an outside patent litigator.
First, whether someone innovates, or not, is what defines “troll” to most people. Thus, an aggregator is a “troll” because it doesn’t invent anything. It’s not the act of manufacturing that bothered people — it is the lack of innovation. So, Bob the Inventor can file a suit and no one would call him a troll. Likewise, if Google were to assert a patent that, for whatever reason, it was not commercializing, no one would call it a troll. Same thing with universities, which pretty much only license.
Second, condemning the purchaser of patents for asserting them ignores the innovation, and payment, that preceded the purchase. For example, if an aggregator, or Google, acquires a patent from Bob the Inventor, that’s a good thing. Bob may not be able to commercialize his invention. Further, sometimes patents are purchased in distress circumstances (e.g., bankruptcy) and liquidity is good.
Third, the problem does (as Chief Judge Rader, Professor Chien and I argued in our NYT op-ed) come from the fact that a non-practicing entity doesn’t make anything. But it’s because it can (a) take advantage of asymmetric discovery costs; (b) has no business disruption; (c) doesn’t have to worry about counterclaims; and (d) doesn’t have to worry about its reputation in the market. It is not that it doesn’t innovate — it paid the innovator.
Fourth, better enforcement of 285 is only part of the solution. If the patentee is an LLC with no asset besides the patent, then getting fee shifting may not work. (Query: can 285 be used to shift fees to plaintiffs’ counsel?). What may work is early claim construction followed by greater enforcement of Rule 11 against patentees who assert infringement after an adverse Markman ruling. (In my second edition of my patent ethics – litigation book, I survey the Rule 11 cases and pretty much all of them are not for incorrectly filing a suit (how can a judge sanction a lawyer on a close claim construction question when the CAFC reverses district judges so much?), but for continuing to assert infringement after a Markman ruling makes it clear there is none. So, if you move up Markman, and then apply those cases… sanctions are available against the lawyers.
Finally, what is the real gripe seems often to be with patent quality. That’s not solved by looking at who owns a patent, however.
Ha Ha, said, Nobody claims programming per se.
What is claimed is the machine performing the instructions (i.e., a method/process) or a programmed computer, which is a reconfigured computer. It is not the same computer … it is an improved computer. Moreover, there is a structural difference between the two.
The difference between a non-programmed computer and a programmed computer must be physically discernable — unless you believe in magic.”
I will believe you that the computer is new if it is different when the power is turned off.
“ if it is different when the power is turned off.”
It is.
See Alappat.
See the Grand Hall experiment.
See Nazomi.
Shall I go on?
…or perhaps you are again making the mistake of thinking only in the ‘use of’ and forgetting the ‘change the old box with the configure’ necessary step…
…or maybe you think that software is only software if it is ‘in motion’…? (Which may explain your odd predilection with a computer being ‘on’)
I will believe you that the computer is new if it is different when the power is turned off.
You sure don’t know a lot about computers, do you? Or is it magic you believe in?
In most instances, if the computer is “programmed,” it will stay that way unless the program is deleted — regardless of whether the computer is turned off.
There may be circumstances in which the programming is deleted once the computer is turned off. However, an analogous thing happen can happen to a patented machine upon one of the claimed elements being removed from the machine. In that situation, the machine is not covered by the claims — and it is possible that the machine may not be considered new over the prior art.
Is this the best you can come up with?
anon: “Most?”
Are you expanding the definition of “computer” to “computer system?” Historically, computers have not included peripherals such as disk drives that have long term storage. Computer “program” memory is typically fast and volatile for that reason.
Moreover, if a computer’s power is turned off, it reboots on restoration of power. Any program that may be in program memory is
Gone.
Most?
Better: None.
Ned,
It is unclear how your post at 9.3.1 is responding to me.
Further, it appears that you are attempting to kick up dust again with your misuse of “use” and “configuring an ‘oldbox’ in the first instance.” I will refer you (again) to the Nazomi case and the Grand Hall experiment (wherein the appropriate discussion point is between two computers, originally identical in physical configuration and without any software and then with one (and only one) having an additional machine component and manufacture of software added to it – off or on, there is no doubt that the newly configured machine is physically different than the machine that has no software). Please address this in a simple, direct and honest response.
Historically, computers have not included peripherals such as disk drives that have long term storage
My previous reply failed to post, so I’m posting under a different nom de plume.
I’m not sure where you get your history, but those skilled in the art, when referring to a computer intend the phrase “computer” to encompass everything (i.e., including the peripherals). If you mean a computer is just a processor — well, those skilled in the art refer to it as a “processor,” not a computer. The term “computer system” is rarely used to describe what most understand to be a computer.
Sorry to burst your bubble …
Ned likes to parse and twist and under-include and over-read and do WHATEVER it takes to reach his agenda, and then take umbrage and ignore and kick dust and feign ignorance and run away from those things that rain on his parade.
Will we ever see him engage the conversation fully?
Oh No, intend, or mean?
The form of a computer has changed over time, but the only thing that remains constant is the CPU, and program memory. Anything beyond that has a computer, but not necessary is a computer.
This is the problem when speaking of this topic. When you say a computer is a new or improved machine with the programming, but the programming is physically located in a cloud, remote from any user, just what are you talking about?
Ned,
That is most definitely NOT how a person of ordinary skill in the art would define the term.
Your continued illogical use of terms, over-reading of Supreme Court case, while leaving out critical comments, and overall avoiding the points I present to you really diminish your credibility, even to the point of wondering whether you should return any funds from your third party benefactors.
When you say a computer is a new or improved machine with the programming, but the programming is physically located in a cloud, remote from any user, just what are you talking about?
Wow … do you really have such a lack of understanding about computers that you had to ask this question? Seriously, you shouldn’t be discussing the law when you have little understanding of facts.
Mr. Oh no, I have no idea what planet you are from, but when you lost your argument with me, you resorted to a personal attack.
This is very typical of some posters here, so I have an idea who you might be.
Ned,
Your ploy of umbrage has been seen many many many times.
It fools no one. I have asked you repeatedly – in many ways – to address the points I put before you.
Yet, as always, you merely run away.
Mr. Oh no, I have no idea what planet you are from, but when you lost your argument with me, you resorted to a personal attack.
Lost? Hardly. You need a more substantive response to your comments?
When you say a computer is a new or improved machine with the programming, but the programming is physically located in a cloud, remote from any user, just what are you talking about?
When you state “the programming is physically located in a cloud,” what are you talking about? Processing can be performed in the cloud, and the results of the processing can be transmitted to the client (i.e., your computer). Alternatively, executable code can be stored in the cloud, downloaded to your computer, and then executed on your computer. These are completely different scenarios but both are encompassed by your statement. Because of your poorly-chosen words, your hypothetical is worthless.
The form of a computer has changed over time, but the only thing that remains constant is the CPU, and program memory. Anything beyond that has a computer, but not necessary is a computer.
What are you babbling about? FYI — memory is the physical device(s) used to store programs and/or data. The memory can be local to the processor (e.g., cache), it can be high-speed (e.g., RAM), or it can be lower speed (e.g., a hard drive although that doesn’t count SSDs). Memory can be volatile or non-volatile.
Obfuscation and running away are the hallmarks of Ned Heller.
Oh, and feigned umbrage when all else fails.
Oh No, re: link to patentlyo.com
The point we are discussing is whether we are using an old computer or creating a new computer. We are more specifically talking about In re Bernhart, the CCPA decision that in dicta stated that programming created a new computer by “rewiring it.”
All I can say is that if programming “rewired” a computer, then it would remain rewired with its power off. Since that is not the case, then Bernhart is nonsense. And since it is nonsense, all that rely on it are nonsense.
“All I can say is that if programming “rewired” a computer, then it would remain rewired with its power off.”
Why is that necessary? You’ve introduced a requirement out of thin air.
Regardless, your comment speaks to your unsophisticated knowledge of computers. Based upon your past comments, I suspect you spent the first several decades of your life without ever crossing paths with a computer.
How do you think logic circuits are created?
Mr. No, you are assuming that I know nothing about computers. But I ask you plainly, do you agree or disagree with the dicta in Bernhart that programming a computer “rewires it.”
And if you agree, I will further ask you just how a program rewires the computer.
And, Mr. No, as to me personally, I probably have more experience with computers and circuits and programming than anyone you have ever met. I was one of the programmers on the MMIII project, was a system programmed for IBM mainframes, wrote OSs for two different computers, have had significant experience in computer design and circuits, all in addition to my patent experience that has for a significant period of time been concentrated in computer technology.
And yet Ned, you claim that you cannot understand the Nazomi case.
And yet Ned, you run from the multiple points of law and fact I present to you.
You are a m0r0n or a 1iar.
Or both.
I do not claim that I could not understand Nazomi. But from the opinion itself the fact are unclear as to what was going on.
You either understand the <Nazomi decision, or you do not. There is no middle ground on the question Ned.
If you understood it you are a 1iar and a scoundrel for refusing to discuss the legal logic used in the decision.
If you do not understand it, you are a 1iar and a scoundrel for pretending to know about this art unit and yet not taking the time to understand a case involved in an active discussion.
Either way, you look bad. It looks like you just want to run away from any (and I mean ANY) point that you cannot somehow twist to fit your agenda.
let me clarify once again, anon, that it is you who does not want to discuss Nazomi. Since I do not understand the case, I simply asked you to brief the case for us so that we who do not understand the case can understand it better.
I have to tell you, that my problem with Nazomi is its discussion of the facts. The fact do not make the role of the software clear.
Your “clarification” rings hollow Ned. It echoes with falsity as you run away.
So we are back now to you ‘not understanding’ is it? Back to wanting me to prep a brief, is it? If you cannot understand the case itself, how is my prepping a brief going to help you?
If you do not understand, then you have no business boasting about how much you know this art.
As I said – you are a m0r0n or a 1iar or both.
I have repeatedly asked Ned Heller for proper citations to his extra-statutory additions to patent law.
He has always run away.
sorry, Mr. Ha, but the reply was misdirected to anon.
But, it would help us understand the issue better if we were to define with precision just what you mean by a computer so that we might determine whether a programmed computer is new. I will assume that such a “new” computer infringes when sold, otherwise we are not dealing with machine, but with the use of a machine.
Just for example, consider a tablet that consists of an OS but no apps. Does it become a new computer if the user runs an app that must be loaded every time from a server in the cloud?
“I will assume that such a “new” computer infringes when sold, otherwise we are not dealing with machine, but with the use of a machine.”
No Ned – there is no justification for this assumption. None whatsoever.
anon, as a general proposition, when making a new machine merges with using an old machine, we are not really taking about making a new machine but using an old machine.
In computers the test is simple. If one turns the computer off and then turns it back on, is the program still resident in the computer. If it is, then it infringes. So, why not require claims to new computers comprising new programming to be include a requirement that the programming be fixed to the machine in a non volatile manner.
If I were writing claims on such, even today I would anticipate the courts holding this way in the future and draft some limitation requiring the programmed be fixed to the computer just like we have non transitory with Beauregard claims.
Ned,
As a general proposition, you cannot use that which is not usable. You first need to change the old machine in order to use that machine for which the use you desire is carried over by the manufacture and machine component of software. This is reflected in the Grand Hall experiment. This is reflected int he Nazomi</i< case. This is reflected in the ITC case. This is reflected everywhere, except by those with an agenda and who refuse to recognize the facts and the law.
You simply have not addressed the manufacture aspect – as I have pointed out with other examples such as rivets, tires and bullets.
There already exists the non-transitory aspect. I think that you are purposefully trying to NOT understand the points that I have presented to you. Your lack of reply to the points is telling. I just wonder why you think that being coy and not addressing those points directly makes you think that the points disappear and that your position survives scrutiny.
“when making a new machine merges with using an old machine, we are not really taking about making a new machine but using an old machine”
In an indirect analogy, Monsanto v. Bowman says the exact opposite. There, the natural use of an item, a seed, was directly considered a making.
So in addition to the impossibility of using something without first making it possible to use, your general proposition, tethered to, well, nothing, falls flat.
anon, on the seed case, what did we just discuss in the other thread about misquoting the holding of a case?
The Supreme Court did not hold that planting was infringement. In fact, it held that Bowman had the right to plant seed he purchased from Monsanto. He simply did not have the right to plant seed produced by those plants, and only then, where the amount he sold exceeded the amount he originally purchased and had a right to plant.
Ned, On the seed case I am not relying on the legal notion of a holding to draw the parallel.
Funny that you want to question me when you provided NO legal backing whatsoever for your ‘proposition.’ Now note how I reacted – instead of kvetching, I simply dismantled your position with cold logic. No kvetching needed.
Nevertheless, the Court did say that the patent infringement was in the making:
“Patent exhaustion does not permit a farmer to reproduce patented seeds through planting and harvesting without the patent holder’s permission.” See Holding at link to en.wikipedia.org. See also Bowman v Monsanto Supreme Court decision slip op 1.
Not the operative word in the sentence is reproduce – or make.
All of this ‘accounting’ you are adding is nowhere in the decision – Bowman was not in trouble for what he bought – as he did not buy anything from Monsanto, and would have been fine using the seed for any other thing – chicken feed, ground into dust, anything. Once again, you are engaging in rewriting what the Court has actually written in order to try to make your position. And once again, you come up well short.
“planting and harvesting” and only under the circumstances of the facts in this case.
Lourie’s view of things was not followed, even though the Supreme Court affirmed the Fed. Cir.’s judgment.
Your post at 9.3.2.1.1.5 is a non-sequitur to our discussion.
Do you want to try to circle back and simply acquiesce the point to me?
Not really, anon.
Now, back to our favorite topic, Monsanto. We see they are patenting plants. Next they are going to improve bees. What next is on their agenda do you believe?
Did you ever read The Windup Girl? Wow, what a book. In this future, genetically modified plants are the only thing left on earth, and they all have genes that prevent reproduction. Several big companies supply the world’s needs for “calories.”
They modified a cat, and it took over the whole cat population in the world. No unmodified cat was left.
When they got to modifying humans, they made them such as not to be able to reproduce. One of these is the Windup Girl of the title.
A few interesting links this morning, offered for your entertainment:
link to bloomberg.com
link to news.yahoo.com
Does it become a new computer if the user runs an app that must be loaded every time from a server in the cloud?
Does a car become a new car every time someone puts the key in and take it out. Without the key, the car is nothing but a couple thousand pound paperweight.
A car with a key is certainly different than a car without a key. What is a light without a light bulb or a stapler without staples?
A computer without the app (assuming that the app causes the computer to be configured in a manner to fall under some patent claims) is not infringing. The computer with the app is infringing. This isn’t a particularly hard concept to comprehend and can be found in both mechanical and electrical devices.
Did you ever read The Windup Girl?
Did you ever see the Happy Days episode when Fonzie jumped the shark?
Too clever by half, Oh no, (that is what those trying so desperately to twist patent law to exclude something that so easily falls under its scope).
To a person having ordinary skill in the art, the key is already a part of the car. Yes, you do have different cars when you have different ignition systems built into the car. I just drove a rental that did not have a key per se – merely an electronic fob. Most definitely a different car than the traditional stick-an-engraved-and-physically-encoded-bar-of-metal-into-a-slot ignition system equipped car.
The bottom line fact so desperately attempted to have dust kicked over it: software is equivalent to firmware and is equivalent to hardware.
“A computer without the app (assuming that the app causes the computer to be configured in a manner to fall under some patent claims) is not infringing. The computer with the app is infringing. This isn’t a particularly hard concept to comprehend and can be found in both mechanical and electrical devices.”
Is there anything more pernicious than willful blindness?
Oh no hits the nail on the head (and the points he notes tie directly to the recent ITC case and the Nazomi case that Ned continues to refuse to allow himself to understand).
One does not have to look too far to see Ned’s vested interests at play and why – as so often has been repeated in our conversations, those conversations are short-circuited and abandoned, obfuscated, found umbrage and stormed off from, by the one side that really does not want to take the conversation to its logical conclusion.
There is a very good reason why the Patently-O posting rules include the notion that posts are to be of a personal nature. Those posts not of a personal nature, that serve merely to shill for third party interests will have a vested interest in NOT reaching logical conclusions. Willful blindness and obfuscation to the truth are the tools of control in attempting to foist a belief system that is just not supported by fact, by law, or even by general policy (see the portions of Benson and Flook that Ned leaves out).
We see this merry-go-round of CRP-run away from valid points raised-CRP again quite often – and it is not too difficult to note which topics, which agendas, which Curse-sades are the targets. Only the two most important patent areas in today’s modern advanced society. The two areas that patents carry the most threat to Large Corp.
Much like the choice between the red pill and the blue pill, my posts are not to control, but to liberation from the control that others wish to subjugate all to. This notion that software and business methods are not proper patent eligible material is the world that has been pulled over your eyes to blind you from the truth. Don’t look too closely at the fraying edges of such “B-b-b-but I have a First Amendment right to engage in policy-only table pounding.”
Lemming 6 reminds me of Cypher, wanting the illusion over the reality, and willing to betray those seeking the truth.
It appears that like Benson, Ned has been less than candid in his protrayal of Flook:
To wit: “Neither the dearth of precedent nor this decision should therefore be interpreted as reflecting a judgment that patent protection of certain novel and useful computer programs will not promote the progress of science and the useful arts, or that such protection is undesirable as a matter of policy.”
Ned’s de facto and per se rules cannot stand.
Anon,
I have patiently explained to you that software is a manufacture. You cannot say that it does not fit any of the statutory classes as it easily does.
On the contrary, you have often explained that software is copyrightable. This means it is a literary work, the instructions written down on a page. If you have some other meaning to software, tell us what you mean.
You further misrepresent what ‘eligible’ means with your statement of “A GP digital computer is OLD. That is non statutory under 101.” You provide no basis for saying a machine is not statutorily eligible because it is old. You conflate patent eligiblity and patentability.
If you read section 101, the word new is actually in the statute. In footnote 15 of Flook, the Supreme Court explained that lack of newness was the basis for exclusion of subject matter from eligibility. In that particular case, they were talking about products in nature and laws of nature that were not new even though recently discovered. Surely an old machine is not new in the sense of 101. That it is also not patentable under section 102 is irrelevant.
This statement of yours is pure nonsense: “it did exclude categorically that the recital of a programmed GP digital computer could confer eligibility” as the holding of Benson was to a method – and no inclusion of a machine was a part of that holding. I have patiently explained this to you as well.
You must have missed the point that the limitation of the method claims to a general-purpose digital computer would not be sufficient to confer eligibility. That was an issue both litigated and decided and Benson. It was a holding of the court.
I will remind you (yet again), that the holding in Bilski did not touch business methods, but was instead that the claims in Bilski failed for being abstract.
No doubt the claims were held ineligible because they were abstract. The point I am making is about your denial that the claims in Bilski were business method claims. They were. Thus your statement that Bilski held that business methods were eligible cannot be correct. What the Supreme Court was unwilling to do was to declare the business method claims in that case ineligible because they were claims to business methods.
So the question remains of course whether there are any business methods that are not abstract?
Ned,
Sorry but you misconstrue why I use the aspect of copyright when discussing software.
I use the aspect of copyright to show you that software is not something “totally in the mind” and must have structure – physical, tangible structure. Such is a legal requirement, and the fact that software is given as being able to have copyright establishes that non-abstract nature for other purposes.
You should know that software garners different protections for different aspects under the law.
The copyright aspect is not the same as the patent aspect. Thus, it is only one aspect from copyright that I reference in our discussions – the non-abstract requirement.
As to “literary,” well, Ned, since you have never deigned to grace any conversation about ‘literary’ and the exceptions to the printed matter doctrine, which I have often posted for discussion with you, are you finally ready to discuss this controlling law?
After all, the critical aspect in software for patent purposes (as opposed to the copyright purposes) is the utility and functionality it has. Functionality that provides the patent weight to the manufacture. If it were mere words with no functionality, well, then, it wouldn’t be software, would it? For some unknown reason you refuse to understand and give full credit to what software is.
You ignore the fact that software is equivalent to firmware and is equivalent to hardware. You ignore controlling law. How else do you want me to attempt to hold a conversation with you when you ignore the facts and you ignore the law?
Your reliance on the dicta of footnote 15 in a case that has been limited is not compelling Ned. That was a professor in that footnote by the way, and as I explained on that monster thread, the ‘loose idea’ being used in that discussion should be retired. People like you who tend to over-read and twist things out of context cannot be trusted to understand the point of the dicta.
You cannot conflate eligibility and patentability. See Prometheus. And that is exactly what you are trying to do.
You again repeating ‘the holding’ of Benson as something that it is not is likewise not compelling Ned. All that you are doing is ignoring the point behind my post and merely repeating the conclusion that you have not proven. Benson’s holding only dealt with the method claim the Court addressed – you do not get to expand that as you are attempting to do.
Your attempted point with Bilski is a non sequitur. That the claim is also purported (by you) to be a business method claim simply has no part in the holding. See my post of reduction ad absurdum with Prometheus and medical method claims. You are attempting to over-read what the Court has written – you simply cannot do so. Your point is invalid.
Read again – carefully and slowly what you also said – “Supreme Court was unwilling to do was to declare the business method claims in that case ineligible because they were claims to business methods.”
You are attempting to do what the Court refused to do. You cannot do that. Just like in Benson, your over-reading results in something expressly not HELD – not said – by the Court. For your view to be correct, Stevens would have been in the majority and he simply was not. There was a very simple reason why he failed. And as he failed, so too, here, you fail.
Anon, the copyrightable software exists on the medium where it can be perceived. That is paper or a computer display showing the source code.
Functional code exists after compilation of the source code in a computer where the code may be executed from the computer memory.
There may be intermediate forms that are not functional but which can be made functional by compilation or the equivalent.
But, from a patent point of view, the only thing that could possibly be eligible is the fully compiled and executable code resident in a computer memory.
But how can this be a manufacture when its very existence depends upon electric power? Pull the plug, and such software vanishes.
Functional or made functional suffices, Ned – software is the term of art that encompasses all of these things, as is known to a person having ordinary skill in the art for legal purposes.
Your attempted re-defining (again) for “patent purposes” is summarily rejected.
And yes, it very much is a manufacture regardless of any purported dependence on electric power (it means more than what you are attempting to say it means) – further, you make the mistake of thinking that full functionality must ALWAYS be in play – not so. I have routinely provided you examples of other manufactures and machine components that likewise are not always in play: rivets, tires, and bullets. I have pointed out and asked for legal backing for your extra-legal notions repeatedly, and you have repeatedly failed to provide any legal backing. “Pull the plug” and does your Microsoft operating system disk with software disappear?
You have provided NO factual or legitimate legal basis for your attempts to treat software differently than any other manufacture and machine component.
None.
In fact, I have pointed out to you your legal error (repeatedly) in your attempts to mis-characterize the eligibility of the item known as software.
On the contrary, you have often explained that software is copyrightable. This means it is a literary work, the instructions written down on a page. If you have some other meaning to software, tell us what you mean.
What lousy logic. You’ve heard about “art deco”? While I’m sure that people can debate about an exact definition it involves adding artistic touches to functional objects. While it is commonly thought of with regard to architecture, it is also tied to consumer goods. The fact that a functional product can be artistic does not take away that it is still functional and potentially patentable.
anon: “‘The concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook.’ See Bilski, slip op at 15.
.So unless you think the math formula in Benson is also a business method, I do believe that you owe me an apology.”
Not an apology, anon. But I do think this is the weakest part of the case, as I believe Benson and Flook based its exclusion of math as an equivalent to a law of nature. Here is the pull quote from Flook,
“Reasoning that an algorithm, or mathematical formula, is like a law of nature. Benson applied the established rule that a law of nature cannot be the subject of a patent.” Fn. 15 made it clear that the statutory basis for the exclusion was lack of newness. ” Patentable subject matter must be new (novel); not merely heretofore unknown.”
Just how one can assert that a business method is equivalent to law of nature is beyond me. Bilski “perverted” the principles announced in Benson and Flook, so much so as to cause anyone and everyone to doubt whether those cases had any statutory basis at all, because Flook did establish a statutory basis, lack of “newness” for mathematical algorithms.
Are business methods equivalent to a laws of nature? Hardly. So, why are they excluded again Mr. Kennedy?
You seem to want to rewrite the opinion to say something that it did not.
You do that quite often.
When I quote the opinion, anon, at length, the part where Flook explains the legal basis for its holding in Benson, and you say I am wrong, then I am wrong about what?
What do you think Flook said then?
Flook (as well as Benson) have been limited by Diehr. See Bilski.
Even as you now want to jump to Flook, you still have not addressed the specific errors that I have shown you in your reading of Benson, nor of my showing you that Bilski did NOT say about business methods the thing you said that it said.
These are not new concerns with your posting style Ned. You want to take umbrage, yet refuse to take any responsibility for your misrepresentations.
anon, I don’t know what you are talking about.
The assumption you are making about Bilski is that the claims at issue there were not a business method. But, anon, trust me, they were. Yet they were held ineligible, and the state reason is not obviously supported by Benson and Flook — equivalent to a law of nature. A law of nature, or product of nature, is excluded under 101 because they are not NEW, even though not known and discover by the applicant. This is entirely statutory, and makes Benson, Flook, Prometheus and Myriad entirely consistent.
What stands out as inconsistent is Bilski. I do not perceive a business method to be at all like a law of nature.
And, sir, that is the gravamen the Alice brief.
Once again Ned, the Court did not use ‘business method’ in the HOLDING of Bilski, and you are not allowed to rewrite the decision – no matter how many times you try.
Just like your error in Benson that I explained to you in your over-reading in that case and your attempt to do what that Court expressly said not to.
Ned,
Prometheus concerned a medical method – your logic would dictate that ALL medical methods are no longer patent eligible.
You are simply misreading the actual words of the Court in an extremely contorted manner in an attempt to reach your crusade.
Please stop.
And, anon, you need to be aware that Alice read Flook the same way.
“So, why are they excluded again Mr. Kennedy?”
Easy. They are not.
If they were, then Stevens’ position would have been a majority position, not a dissent dressed as a concurrence, and we would have had a constitutional crises for violations of the separation of powers doctrine.
I am amazed to what lengths you will clench tight your eyes Ned.
“It’s not the act of manufacturing that bothered people — it is the lack of innovation”
No, it is the lack of manufacturing + lawsuits against manufacturers.
Jake2,
That sounds in ‘infringers’ rights,’ especially given the fact that there is not ‘Use’ requirement (nor could there be for improvement patents) in US law.
For the duration of the limited time of the patent grant, if someone wanted to sit on that patent and not let anyone manufacture, that is how our system is built to be.
If you are bothered by this, then you need to come up to speed on the law – it has been this way from the beginning.
Jake2, what would bother me is if the patent were bogus. We once had a problem with form factor patents in the disk drive industry. The entire industry united to complain to the PTO to stop issuing them. What were they? Patents where a particular feature of a disk drive size was claimed: for example, the diameter of a disk, the number of tracks, etc. The problem was, these patents covered every disc drive produced as the technology advanced.
Bogus as all get out.
Then we had guys like Lemelson, you know. It wasn’t that he was an NPE. It was the fact that his patents were bogus.
I never ever had a problem with dealing fairly with patentees that had solid patents on real technology. Never.
One problem Ned in the ongoing discussions is that ‘bogus’ is being defined by you without regard to facts or law.
Software, for example. You are refusing to recognize facts and law. Do I need to provide these points to you (yet again), or will you actually join a conversation on the merits?
By the way, how is your understanding of the Nazomi case coming along?
what is the real gripe seems often to be with patent quality. That’s not solved by looking at who owns a patent, however.
I agree that the problem of “poor patent quality” is not solved by looking at ownership/inventorship. We can certainly gain some insight into the original sources of that problem by studying how the weakest patents are being generated/asserted, and who are the entities/individuals most invested in that activity. I don’t see anything wrong with such analyses — they are typical questions asked in pretty much any Federally sponsored entitlement program, particularly those with potentially huge adverse consequences for the public.
It sounds like it was an interesting conference, in any case. Congrats!
Agree, it does tell us something, but I am not sure the myopia on what the owner of the patent is, or is not, doing ought to be the focus.
On a related note… what do you all make of the fact that (I think it’s about) 90% of post-grant proceedings are being granted (meaning substantial question of patentability, or whatever the buzzword is nowadays), and a majority (or plurality at least from what I’ve heard and seen) of the few so far are being held invalid. Small sample, but doesn’t this mean: (a) people are being smart about picking their targets or (b) the patentability standards have changed or (c) a lot of crummy patents, under existing standards, were issued; or (d) all of the above; or (e) none of the above?
Probably (c)
what do you all make of the fact that (I think it’s about) 90% of post-grant proceedings are being granted (meaning substantial question of patentability, or whatever the buzzword is nowadays), and a majority (or plurality at least from what I’ve heard and seen) of the few so far are being held invalid. Small sample, but doesn’t this mean: (a) people are being smart about picking their targets or (b) the patentability standards have changed or (c) a lot of crummy patents, under existing standards, were issued; or (d) all of the above; or (e) none of the above?
Certainly all of the above are potential explanations. The most likely explanations, I think, are (a) and (c).
The patentability standards haven’t changed that much or we’d have seen a drop in the percentage of applications that result in grants, or a drop in the number of applications filed (as people give up on getting a patent for their unworthy innovations). Unless I’m missing something, neither has happened.
The PTO always does a better job when someone is there to hold its hand, particularly when it come to computer-implemented junk.
Apologies for the formatting goofup. Only the first paragraph should be in italics.
Do you think (loaded question coming) 101 has remained constant? That, I think, has been the basis for undoing a few patents in CBM proceedings….
David, 101 constant? Not from the Federal Circuit or CCPA. After Benson, the Federal Circuit continued to rely on Bernhhart — that a programmed computer was a new machine. This lead to the dicta in Alappat, and to State Street Bank.
Now a central problem with trolls is this “malfeasance” of the Federal Circuit — allowing claims that simply recite a programmed computer or CRM as if the Supreme Court cases on programmed computers did not exist. True there were always some on the Federal Circuit who knew that they were not following the Supreme Court, but heck, defiance of the Supreme Court is exactly what the patent bar wanted because they largely wanted Benson overruled.
Just reading the briefs in Alice, one comes away with an extreme distaste for the organized patent bar that largely eggs on and abets this defiance of the Federal Circuit.
Just before I wrote this note, I was trying to remember how Rich overruled a longstanding practice of the PTO to reject claims to compositions that were no more than products of nature. Rich ruled that there was no 101 novelty, no product of nature exception, and that only 102/103 applied.
Now, of course, this case is overruled by Myriad, and once against Rich’s defiance of the Supreme Court has been overruled.
Do you think (loaded question coming) 101 has remained constant?
For the most part, yes. State Street Bank was a tragic mistake, the knee-capping of which was inevitable and pretty much immediate, leading eventually to the unsurprising tanking of Bilski-esque junk.
Make no mistake: it was the PTO and their client’s expectations of what they were entitled to that has changed most drastically. The PTO simply stopped doing its job and ceased to apply 101 or 103 in a sane manner (the latter statute becoming the major gatekeeper for eligibility concerns with hardly any academics giving a hoot).
Has the PTO started to actually apply 101 (and 103) to the junk claims that are put before it? Yes. They are still not doing a great job, however, when someone is not there to hold their hand. For instance, they still do not seem to understand that information (e.g., correlations) can’t be protected with patents. And they still struggle with identifying and articulating the fact that nearly all information processing performed by a computer is obvious in view of information processing performed by humans.
Rader is a huge part of the problem, of course, because he equates the recitation of computer-implemented functionality with the underlying new “technology” (to the extent any exists — a rarity, in fact) that is disclosed only in the specification or (typically) in the prior art.
The two major changes are (1) the ineligibility of claims to “new signals” (again — was anyone really surprised? just a naked attempt to patent information, yet again); and (2) the ineligibility of isolated DNA molecules reciting only sequences that are identical to contiguous sequences found in the prior art or “in nature” (a narrow holding with immediate implications for very, very, very few biotech applicants).
Ugh! MM, you cannot be serious that the PTO gets it. Do they have guidelines that simply proclaim that programmed GP digital computers and CRMs are not statutory? Until they do, the mess we are in will continue to get worse as more and more ineligible patents continue to be issued.
An there is no doubt that Rader is the most important remaining holdout for the Rich view of 101 on the court. We may never see the problem resolved until he leaves the court.
Ned: Benson overruled”
Perhaps here you will respond to this post…
Ned,
You have (incorrectly) broadly generalized from a specific fact pattern to cover an entire genre, ignoring the fact that the Court explicitly said not to do what you have done.
Do you really need me to hold your hand and explain why you cannot do this?
The fact as the Court in Benson discussed was a singular example of a method that was no more than a single mathematical formula. The Court in Benson reduced the scope of their holding to be no more than ‘you cannot patent a math equation.’
By no reasonable means can this holding be construed to say that any computer programming is de facto or per se ineligible.
As to any larger context, again it is you that falters. The limitation from Diehr must be kept in mind when one seeks to use the holding of either Benson or Flook. See Bilski.
As clear as it is (or should be) the larger context indicating that the notion of software under discussion permits the application of copyright coverage also indicates that no mere single math formula is under consideration in the discussion of software as a patent eligible item.
When one discusses these legal principles, one also keeps in mind that any claims are considered from the vantage point of the legal construct of a person having ordinary skill in the art. This legal construct would recognize that software is more than just a single math formula is being claimed. This legal construct would recognize that more than just something existing totally in the mind is being claimed. This legal construct would fully recognize the fact that software is equivalent to firmware and is equivalent to hardware as a manufacture in its own right and a machine component. And further, this legal construct would recognize that software is generally created for a utilitarian purpose – clearly I am not – nor have I ever – proposed that one can ignore the purpose and skip consideration of that purpose under the 101 analysis.
In all of our long-standing 101 discussions, I have always made clear that this requirement remains. I am truly disgusted that you would seek to play some type of Crybaby Veto and purposefully and deceptively mischaracterize my well established position in your attempts to kick up dust and refuse to address the points that I bring up in our discussion.
If we were in court, there would be sanctions sought – but not the sanctions you think of, and most definitely, not against the party that you have in mind.
Anon, the use of a programmed computer to modify a conventional process was approved in Diehr. The use of a programmed computer to modify a graphics unit was approved in Alappat.
But programming is non statutory. So is a programmed computer, per se. Simply reciting programming in a computer or CRM does not ipso facto render that subject matter eligible. If that was not already abundantly clear under Benson, the Supreme WILL, I believe, make it abundantly clear in Alice v. CLS Bank.
To the extent the PTO does not have blanket exclusions regarding programmed computers and CRMs as being ineligible, the PTO is doing a disservice to all.
Somewhere in the ’90s, about the time of Donaldson and Alappat, the PTO simply gave up fighting Rich. The floodgates opened. Junk patents flowed out of the PTO to the great damage of America, and created the troll problem The people who made those decisions were perhaps simply exhausted by Rich, but when they gave up, they shirked their duty to all of us.
Ned: “But programming is non statutory”
Malcolm says that no one – not even you – say that. See his post 20.1.1.2.1 at link to patentlyo.com
Ned, you have offered no legal citation for this. None. This is most definitely not the holding in Benson, as that case expressly says that such is not the holding. If you want to be a stickler for legal discussion, this would be a good point to start.
anon, but programming consists simply of instructions for a machine. They are not a machine, process, manufacture nor composition. They are not even within the four classes.
A GP digital computer is OLD. That is non statutory under 101.
While Benson did not categorically exclude programmed computers, it did exclude categorically that the recital of a programmed GP digital computer could confer eligibility.
Thus, the PTO should categorically exclude claims to programs directly or indirectly recited, e.g., CRM.
They should categorically exclude claims to programmed computers per se, as that IS consistent with Benson, but do not categorically exclude claims to subject matter that includes a programmed computer. See, Diehr and Alappat.
I hope you see these distinctions. We had a hard time with Bilski with your continuous insistence that business method ARE eligible when that statement is flat out inconsistent with the holding in Bilski. That the likes of Hal Wegner said this too only brings into question either his intelligence or his agenda.
Ned,
I have patiently explained to you that software is a manufacture. You cannot say that it does not fit any of the statutory classes as it easily does.
You further misrepresent what ‘eligible’ means with your statement of “A GP digital computer is OLD. That is non statutory under 101.” You provide no basis for saying a machine is not statutorily eligible because it is old. You conflate patent eligiblity and patentability.
This statement of yours is pure nonsense: “it did exclude categorically that the recital of a programmed GP digital computer could confer eligibility” as the holding of Benson was to a method – and no inclusion of a machine was a part of that holding. I have patiently explained this to you as well. I repeat this from my post above:
The fact as the Court in Benson discussed was a singular example of a method that was no more than a single mathematical formula. The Court in Benson reduced the scope of their holding to be no more than ‘you cannot patent a math equation.’
What you feel they should do is nothing more than your attempt to rewrite what they actually did to fit your well known agenda. This too, has been patiently pointed out to you as not proper under the law.
Lastly, – you (again) misremember our discussions on Bilski with “We had a hard time with Bilski with your continuous insistence that business method ARE eligible when that statement is flat out inconsistent with the holding in Bilski.” as it was I that showed you – with your own source on how to understand Holding versus Dicta – that it was you that was incorrectly stating the holding of Bilski. I will remind you (yet again), that the holding in Bilski did not touch business methods, but was instead that the claims in Bilski failed for being abstract. I have consistently corrected you on this and your attempts to redefine the definitions of abstract and business methods. I have further consistently point out to you that Stevens lost his majority position and his dissent dressed as a concurrence has not force of law (and in fact would create a constitutional crises had it the force of law, as it would have directly violated the separation of powers with the judiciary explicitly writing patent law when that authority was given to Congress (and again, you need to understand what happened in 1952 with Congress removing the common law evolution tool of the courts to define the 101 aspect of invention).
All of these points Ned have been presented to you in the past.