ABA Journal Includes Patently-O in its Blawg 100

For the fourth year in a row, the ABA Journal has selected Patently-O as one of the top 100 legal blogs (Blawgs). The list offers a nice way to find out about other high quality blogs you may have missed. For the first time, the list includes a sub-category of IP-focused legal blogs. Others in the category include the TTABlog (John Welch), TechDirt (Mike Masnick), IPWatchdog (Gene Quinn), IPKat (Jeremy Phillips and team), and Copyrights & Campaigns (Ben Sheffner). Of course, there is a quite long list of very good IP-focused legal blogs that should have made the list.

The annual listing includes a popularity contest and I would appreciate your vote. (A quick registration is required to vote.)

Notes:

 

200 thoughts on “ABA Journal Includes Patently-O in its Blawg 100

  1. 200

    Come on now you all know that K T was the beginning. You all know JRW was there to. And then DT. and then RL claiming to CK that he was the first one to do a Trademark. and it was a fake Facsimile. And then one by one they were all helped I want my FREEDOM!

  2. 199

    I know that when I was called by D.T. to sign a notice I was told to tear up earlier it was him that was involved along with J.W. And then the Whaler was there to catch the Fish.
    I want my FREEDOM. The Patent(s) mine!

  3. 198

    Then why doesn’t he come out and fight like a Man? We know that will never happen. He’s been hiding behind his little man for so long I will now call him shadow.

  4. 197

    You see I know that a person (AHEM) kept telling me I was making no sense.

    Sarah, when you mentioned a “special worm” we knew exactly who you were talking about.

  5. 196

    You see I know that a person (AHEM) kept telling me I was making no sense. So it was a simple deduction as to whommmmm was the culprit. I ain’t STOOOOPIDDD. To whom it soes concern I told you that already. And if you don’t know who I am referring to? Go back and check each thread. but then again it may have been erased.
    A week or so ago I contacted for some help. Haven’t heard back as of yet though.

  6. 194

    Reminds me of plenty that was removed from Patently O to hide what was really written first on my Computer, and maybe a select few others. A special worm just for me.

  7. 192

    Well, it looks like IP Blotchblog creamed Patently No in the popularity contest among lawlyers.

    Yet, when I google “patent blog,” Patently No comes up as the top search result, while the Blotchblog doesn’t show up until page 8.

  8. 189

    IANAE, you are still ducking, for the tenth time,

    Wow, ten times.

    I’d be lying if I said I didn’t think this day would come eventually.

  9. 188

    IANAE, you are still ducking, for the tenth time, the question regarding your explanation as to how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry.

  10. 186

    Nine, you say? I thought surely I’d be up to at least ten by now.

    Oh well, let me know when it reaches ten I guess.

    And thanks for the regular updates. There’s no substitute for good customer service, I always say.

  11. 185

    IANAE, you are still ducking, for the ninth time, the question regarding your explanation as to how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry.

  12. 183

    ping you wouldn’t know a fun game if it involved the hottest womans in the world in a pool of jello in a circumstance whereupon you were then bitten upon the arse.

  13. 182

    IANAE, you are still ducking, for the eighth time,

    Ned’s cousin Joseph would be so proud of this conversation.

    – “I didn’t say you couldn’t find me guilty, sir.”
    – “When?”
    – “When what, sir?”

    – “When didn’t you say we couldn’t find you guilty?”
    – “Late last night in the latrine, sir.”
    – “Is that the only time you didn’t say it?”
    – “No, sir. I always didn’t say you couldn’t find me guilty, sir.”

  14. 181

    IANAE, you are still ducking, for the eighth time, the question regarding your explanation as to how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry.

  15. 180

    BTW, you are still ducking, for the seventh time,

    Oh, is it up to seven already? That’s like a 17% increase since yesterday, isn’t it?

    Sounds serious. Be sure to notify me if it goes any higher.

  16. 179

    For Mr. Beauregard and IANAE,

    See the special basement discount for Sunshine Malcolm’s exponential counting machine with a BIG COMPUTER BRAIN. It includes a phantom answer generator and a See-I-told-you-again module.

    Slightly used.

  17. 178

    BTW, you are still ducking, for the seventh time, the question regarding your explanation as to how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry.

  18. 177

    Man, it’s sad when the most interesting items on the “Recent Comments” list are the postings by “New Jordans” and “Louis Vitton Outlet.”

    I, too, shall remember that happiness day forever.

  19. 176

    BTW, you are still ducking, for the sixth time,

    Well, I’ve answered it more than six times, so I think I’m still ahead of the game.

    And since you’re clearly incapable of reading what I’ve repeatedly posted before, I don’t see why I should expect different results if I post it again.

    But if you enjoy counting past six, by all means keep asking.

  20. 173

    “Any sane person who has read anything else I’ve ever posted anywhere would have realized that this is typical.”

    There, fixed it for you.

    BTW, you are still ducking, for the sixth time, the question regarding your explanation as to how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry.

  21. 172

    Any sane person who has read anything else I’ve ever posted anywhere would have realized that this was a simple typographical error, and moved on.

    Sorry my main man – that be the effects of carpet bombing. No ones can tell what ya gonna really be sayin next.

    Course, that does beg the question from Dim Light – why be the “disk in a box” claims invalid.

  22. 171

    I have to explain to you the problem with suing someone for infringing an invalid claim?

    Any sane person who has read anything else I’ve ever posted anywhere would have realized that this was a simple typographical error, and moved on.

  23. 170

    I have to explain to you the problem with suing someone for infringing a valid claim?

    W

    T

    F

  24. 169

    “Read an old post if you like.”

    Just cut and paste from that old post. Just explain how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry, and just focus on that issue alone.

    How many times have you ducked the question? Four or five already?? This is easy to keep up, since I’ll just be cutting and pasting as well, but I’ll keep a running track as to how many times you’ve ducked the question.

  25. 168

    New Light — thanks for pointing out many of the distortions presented by IANAE.

    He has a point of view that he wants to spread and he’ll stop at nothing to spread his distortions of the law and the facts.

    He is on the wrong side of the law, and he knows it.

  26. 167

    “the PTO suspiciously agrees with you on this point and has for the past decade and a half”

    Contrary to a point underlying much of your analysis, the “PTO” is not a monolith. The USPTO of today is very different than the USPTO of 2 years ago, which is very different than the USPTO before Dudas took over, which is very different than the USPTO when Lowry was decided, and the USPTO caved on Beauregard. Different people have been in power with a varied opinion of what constitutes statutory subject matter and what does not.

    If you want evidence of Beauregard claims being rejected, just look at a few BPAI decisions (easy seach engine on the USPTO website to use) — they are been appealed and some of the rejections are being affirmed. They are using different tactics to reject them, but the reject them nonetheless. Thus, the impetus to reject is there, so why wouldn’t anybody at the USPTO use this seemingly solid rationale that you’ve been espousing?

    “who hasn’t had the courage to challenge this supposed PTO policy by appealing to the Federal Circuit. It only takes one.”
    No need, the law stands on my side, and fixing Beauregard claims based upon the USPTO’s current take on them is easy. I would be more than happy to challenge the USPTO’s current policy on Beauregard claims, but it is far less expensive for the client to make the minor modifications than it is to take a case to the Federal Circuit.

  27. 165

    “I answered it several times. If you want to call it ‘dodging’ that I don’t repeat my answer in every post, go right ahead.”

    Repeat it just one more time … cut and paste from an old post if you like. Just explain how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry. Just focus on that alone.

    I’ll be waiting ………..

  28. 163

    “There’s a big difference between intending a factual consequence and intending a legal consequence. I should have thought this would be obvious to anyone who has attended the first year of law school, but apparently two of you are still mulling it over.”

    I lulzed.

  29. 162

    I like the one about shooting someone in the head, but not to murder them.

    Why, thank you, fake sarah.

    If you shoot someone in the head on purpose, death is a factual consequence that you probably intend. Murder is a legal consequence that you probably don’t intend. You might not even be aware of what exactly the law defines as murder. You probably wouldn’t act differently if the law against murder were repealed. Even if you purposely carry out the actus reus for murder and you know you have the mens rea for murder, you probably don’t intend for the legal consequences to result, and you’d rather they didn’t.

    Besides, there are a variety of situations wherein you might shoot someone in the head (even on purpose) but not even think you’re committing murder. In a self-defense situation, you’d probably be right. In a euthanasia situation, you’d probably be wrong. If you thought the guy’s skull was bulletproof, you’d probably get a free white coat with extra-long sleeves.

    There’s a big difference between intending a factual consequence and intending a legal consequence. I should have thought this would be obvious to anyone who has attended the first year of law school, but apparently two of you are still mulling it over.

  30. 160

    I apologize for the ranting nature of this post,

    If it makes you feel any better, I took no pleasure in attempting to read it.

    I realize that IANAE would have everyone believe that Beauregard claims are no more than words on the outside of a coffee mug, but that simply is not a factual statement. As anyone in the art knows (and surely, this is the PHOSITA baseline), the particular relationship is functional.

    A person skilled in the art would find it relatively simple to design a coffee mug with writing on the outside that infringes any Beauregard claim.

    You might want to go in to slightly more detail as to what you think the big difference is.

    If there were indeed no functional relationship between the program and the readable medium, there could not be any functional relationship between the medium and the computer. Exclaiming that the relationship is with the computer is only a misdirection.

    There’s no functional relationship between the poem and the mug, but there could still be a functional relationship between the poem/mug and the reader.

    The functional relationship between the mug and the coffee inside doesn’t depend on the nature of the coffee either (it’s purely a storage function), but a mug of coffee certainly has a functional effect on the person to whom the mug outputs the coffee.

    In an analogy, inventions claiming new treads on tires need not claim a car even if the functionality of the new tire treads are only realized when the tires are used with a car.

    We’ve discussed tires before, but I’m sure you think you’re clever for raising this seemingly unassailable argument.

    The functionality of the tire treads changes how the tire interacts with whatever surface it’s on. It doesn’t need the car, or even the wheel, to do that. And that’s not even considering that tire treads are claimed structurally. A Beauregard tire tread claim would be something like “a tire having treads formed thereon, the treads being configured to produce (specified traction characteristics) upon interaction with a road surface”, and would be quickly rejected by any examiner. What do you suppose a structural software claim would look like?

    More sophistry: To my comment “There is a real difference between mere written matter and something configured to execute. ”

    Okay, so what do the words “configured to execute” mean to you? Does it mean something other than instructions? Does it mean that the program runs itself automatically? You’re the one supposedly having the honest conversation here, so be a good lexicographer and explain yourself.

    The distortion of actual history was done by IANAE, not the Office.

    I don’t distort the actual history. We all agree on what the PTO historically did. All I said was that they erred in law in doing so, and squandered a perfect opportunity to ask the opinions of three legal experts.

    you will have to share with the rest of us why this there is anything wrong with suing someone who infringes in this manner.

    I have to explain to you the problem with suing someone for infringing a valid claim? I’m not sure I could do that without provoking another well-meaning rant.

  31. 159

    I like the one about shooting someone in the head, but not to murder them.

    Me too. I suppose that if you’re properly licensed, you could call it “surgery.”

  32. 157

    Finally:

    In the midst of what amounts to a large pile of misdirection in reply, IANAE then continues with “because the whole point of Beauregard is that you can sue someone who only sells a disk in a box.” Realizing this is a tangent from the original point (and that original point has not been addressed face to face as it were) we can explore this tangent on its own merits.

    What point here so distresses you IANAE, that you feel compelled to so slyly try to denigrate someone protecting their invention in this manner? I am sure that your attempt at belittling the “disk in a box” appears clever to you, but you will have to share with the rest of us why this there is anything wrong with suing someone who infringes in this manner.

    Have at it IANAE, If you want to respond in a straight forward manner we can attempt to have a conversation. If you want to twist and manipulate, please continue the “conversation” on your own.

  33. 156

    and:

    More sophistry: To my comment “There is a real difference between mere written matter and something configured to execute. ” IANAE attempts to once again redefine by saying “Okay, so what’s written is instructions”. There is a pathological restating of every fact pattern presented. IANAE, it would help if you answered without redefining the positions made. If you stayed with the actual arguments and did not try to manipulate them, we can make some progress. I would be truly amazed if you attempted an answer without manipulation. I am afraid that you really do not want to make progress and want to continue to argue your highly selected phrasing, because otherwise, your philosophy would fail. Constantly rephrasing my position fools no one.
    The dishonesty continues when IANAE parses my words and misapplies them: “but this distorts that actual history in which the Patent Office did apply the test and did decide for itself” to which IANAE responds to his alteration of my words: “Isn’t that what I said?”. The distortion of actual history was done by IANAE, not the Office. So to answer your question, no, that (my statement) isn’t what you said. With this distortion you have simply evaded my point altogether. Another non-answer that objective readers can readily identify. Why do you have such a difficult time when it comes to not distorting other people’s points?

  34. 155

    Still more:

    Addressing IANAE’s comment of “Now, where’s the functional relationship? It’s not with the readable medium. It’s with the computer.” This false statement is an attempt at confusion. If there were indeed no functional relationship between the program and the readable medium, there could not be any functional relationship between the medium and the computer. Exclaiming that the relationship is with the computer is only a misdirection. Trying to differentiate functional relationships is not required. There are functional relationships between the program and the medium as well as between the medium and the computer. In an analogy, inventions claiming new treads on tires need not claim a car even if the functionality of the new tire treads are only realized when the tires are used with a car. The use by IANAE of language such as “deliberately unclaimed” simply misdirects a reader away from the point that a functional relationship exists and thus the printed matter doctrine cannot rule out Beauregard claims.

  35. 154

    More:

    In his reply at 6:01 PM, IANAE starts out of the blocks twisting the facts by stating “ Beauregard claims are along the lines of “instructions stored on a readable medium, the instructions for doing (things)”. We can agree on that, right?” The answer is no, the restatement here is not acceptable as it is not accurate. The twist may be subtle, but none-the-less real. IANAE’s restatement does not represent a Beauregard claim. The passive “stored” and the equally passive “for doing” misrepresent the actual Beauregard claim form. I realize that IANAE would have everyone believe that Beauregard claims are no more than words on the outside of a coffee mug, but that simply is not a factual statement. As anyone in the art knows (and surely, this is the PHOSITA baseline), the particular relationship is functional. Once IANAE accepts this, the rest of his position falls away.

  36. 153

    I apologize for the ranting nature of this post, but IANAE refuses to have an honest conversation.

    While IANAE apologies for any semblance to either Mr Beauregard or 6, I find that he still is quite willing to describe black as white when it comes to actually acknowledging facts, law and arguments on this topic.

    I do not understand why he persists as anyone looking with any objectivity will see his prevarications and recognize his sophistry. I can only reason that actually accepting the facts would mean that he would need to alter his untenable position. I suppose that the reason why IANAE cannot be straightforward is because he has more invested in his position than meets the eye. His trouble in actually answering the points made, makes obvious that he does not have answers. This type of twisting dialogue is neither cute nor clever. It is frustrating to try to hold a normal conversation when IANAE does not (or cannot) answer directly or honestly.

  37. 152

    I see you dodged the question as to how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry.

    I answered it several times. If you want to call it “dodging” that I don’t repeat my answer in every post, go right ahead.

    They reject Beauregard claims all the time.

    But they back down pretty quick, right? That’s what you said, right? So basically they allow Beauregard claims all the time.

    This policy is a top-down driven policy, and you cannot reasonably expect me to believe that in 15 years, there hasn’t been at least one person in power at the USPTO that hasn’t wanted to kill Beuaregard [claims].

    I can reasonably expect you to produce some sort of evidence to back up your belief that at some point in the past 15 years it has been PTO policy to kill Beauregard claims.

    Well, I can’t reasonably expect it. But I can reasonably ask for it.

    Let me tell you, there has been, but they still haven’t pulled the trigger. Why is that?

    Probably because, for all your accusations of me being in league with the PTO, the PTO suspiciously agrees with you on this point and has for the past decade and a half.

    Either that, or you’re one of those fluffy kitties who hasn’t had the courage to challenge this supposed PTO policy by appealing to the Federal Circuit. It only takes one, remember? You could be that hero.

  38. 150

    “All it takes is 1 defendant or the USPTO feeling frisky, but that hasn’t happened in 15 years.”

    How long did it take for Bilski to arise? 15 also? I’ve quite forgotten the date of SS.

    “why hasn’t the USPTO taken the seemingly obvious step of challenging all Beauregard claims, no matter how written?”

    If I had to guess, they’re doing that for the lulz. They want to get a full 20 years of filings in so that they can kill the maximum amount of patents while at the same time having collected fees for them.

    I know I lulzed.

    “They’re not going to make extra rejections on partial claim sets just for the fun of it. ”

    Most of em anyway :)

  39. 149

    “I have. Several times.”

    I see you dodged the question as to how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry.

    “And they haven’t rejected any Beauregard claims because they didn’t like the language, have they?”
    They reject Beauregard claims all the time. Again, do you really practice in this art?

    “requiring that the examiner do extra work for no extra pay”
    Examiners do that ALL THE FING time because that is what they are told to do. Do you practice patent law at all before the USPTO? or are you some litigator or professor who has no clue as to what goes on at the USPTO?

    FYI — the USPTO policy on 101 issues changes all the FING time (multiple times a year). You would know this had you been practicing in the art. This policy is a top-down driven policy, and you cannot reasonably expect me to believe that in 15 years, there hasn’t been at least one person in power at the USPTO that hasn’t wanted to kill Beuaregard kills.

    Let me tell you, there has been, but they still haven’t pulled the trigger. Why is that?

  40. 148

    All it takes is 1 defendant or the USPTO feeling frisky, but that hasn’t happened in 15 years.

    A defendant can only raise the issue if he’s sued or threatened, and will only raise the issue if it benefits him to do so.

    Who gets sued on Beauregard claims? Only software companies. The entire claim format exists for the sole purpose of suing software companies.

    And even if a defendant really felt strongly about invalidating Beauregard claims, he wouldn’t bother if there were non-Beauregard claims asserted in the same action, because it would cost money for no benefit.

    Same goes for an examiner. If he has a Beauregard claim and a method claim before him, he can reject only the Beauregard claim, but then he’ll still have to think of some other reason to reject the method claim, which will apply just as well to the Beauregard claim, and he doesn’t get paid extra for spending extra time to set out the Beauregard rejection that is contrary to his employer’s policy anyway.

    The doctrine doesn’t apply to the computer field.

    Dicta. And wrong in law. And axiomatically wrong, because ink on paper is a kind of computer-readable medium.

    I’m not buying your claim.

    Spoken like a true examiner.

    It pays to read the cases, which you haven’t.

    I have. Several times. All of it, not just the part I wanted to see. Give that a try sometime.

    First, the Federal Circuit gives a blatant warning that they don’t like the printed matter doctrine.

    Neither do I, on the facts of Lowry. Give them a coffee mug with a poem on it, and I assure you the Federal Circuit will have a second honeymoon with the doctrine. The only question is where to draw the line, and Lowry makes it pretty clear that even the old pre-Lowry line permits Lowry and excludes the mug.

    If you are a patent attorney, you don’t practice in the software arts, do you? First, examiners do what they are told, not what they think is right

    Don’t you think In re Beauregard is a pretty clear message to examiners that what they’re told is to permit claims in Beauregard format?

    Also, examiners don’t do what they’re told. They do what they’re paid to do, just like everyone else. They’re not going to make extra rejections on partial claim sets just for the fun of it. They’re paid by the job, and one rejection applicable to all the claims is the quickest way (other than allowance) to do the job.

    I’ve been told many, many times by examiners, while discussing 101 rejections, that the examiner reject the claims, not because they believe the claims should be rejected, but because some QAS or SPE doesn’t like the language.

    And they haven’t rejected any Beauregard claims because they didn’t like the language, have they? Maybe they’ve been told to like that particular language.

    So again, I ask, given this institutional hostility by the USPTO towards software-related patent applications (i.e., applications with every intention of being practiced on a computer, unlike Bilski and other pure business methods), why hasn’t the USPTO taken the seemingly obvious step of challenging all Beauregard claims, no matter how written?

    Because the USPTO has obviously decided that they think Beauregard claims are okay. Not all 101 rejections are the same, you know.

    Ultimately, some applicant will take the case to the Federal Circuit – heck, Bilski and Nuitjen took their claims to the Federal Circuit. Tell me, why hasn’t it happened these last 15 years?

    Because the claim has to be rejected on that basis first (contrary to PTO policy these past 15 years, and requiring that the examiner do extra work for no extra pay), and the rejection sustained by the Board (contrary to PTO policy these past 15 years), without any insurmountable rejection on other grounds in the same case that would render the appeal moot, and furthermore it has to be worth the applicant’s time and money to pursue the appeal. Also, given the current BPAI backlog, even if it happened in the past 5 years you probably wouldn’t know it yet.

  41. 147

    “Of course it stands on questionable legal and logical footing.”

    IANAE FAIL #1 The comment was directed to the doctrine itself, not the particular rejection, as noted by the Federal Circuit “[s]tanding alone, the description of an element of the invention as printed matter tells nothing about the differences between the invention and the prior art or about whether that invention was suggested by the prior art.”

    “Yes, when you extend the doctrine to the computer field you need to be mindful of additional considerations.”
    IANAE FAIL #2 The doctrine doesn’t apply to the computer field.

    “I’ve never worked for the USPTO in any capacity.”
    You’ve got the USPTO stench all over you, so I’m not buying your claim.

    “I’m saying Gulack doesn’t apply in Lowry because the test for the printed matter doctrine is not satisfied.”
    IANAE FAIL #3 It pays to read the cases, which you haven’t. The Federal Circuit in Gulack applied the printed matter test. They found that based upon the printed matter test, that there was a functional relationship between the digits and the band/ring on the which the digits were imprinted. As a result, the Federal Circuit reversed the rejection (“[w]e reject the board’s conclusion that there is no functional relationship between the printed matter and the substrate of the appealed claims”). So explain this to me again, with your tail between your legs crying for yo mama, how “Gulack doesn’t apply in Lowry” based upon your reading of the holding of Lowry.

    Regardless, let me give you the holding of Lowry in a nutshell. First, the Federal Circuit gives a blatant warning that they don’t like the printed matter doctrine. Second, the Federal Circuit states that “printed matter cases have no factual relevance here” because data structure are not analogous to printed matter. In dicta, Lowry states that even if data structures could be considered analogous to printed matter, the Gulack test is passed.

    “And why would an examiner reject a Beauregard claim on a formality that doesn’t apply to co-pending independent claims when he could just as easily write an obviousness rejection that kills them all?”
    If you are a patent attorney, you don’t practice in the software arts, do you? First, examiners do what they are told, not what they think is right – I’ve been told many, many times by examiners, while discussing 101 rejections, that the examiner reject the claims, not because they believe the claims should be rejected, but because some QAS or SPE doesn’t like the language.

    The impetus to kill any type of claim under 101 comes from above, and it is extremely rare to get a first office action on a software invention that does not include a 101 rejection – which has been the case for several years. So again, I ask, given this institutional hostility by the USPTO towards software-related patent applications (i.e., applications with every intention of being practiced on a computer, unlike Bilski and other pure business methods), why hasn’t the USPTO taken the seemingly obvious step of challenging all Beauregard claims, no matter how written? Ultimately, some applicant will take the case to the Federal Circuit – heck, Bilski and Nuitjen took their claims to the Federal Circuit. Tell me, why hasn’t it happened these last 15 years?

    Any explanations?????

  42. 146

    “And I didn’t say they’ve been preventing all defendants from raising that issue.”

    All it takes is 1 defendant or the USPTO feeling frisky, but that hasn’t happened in 15 years.

    BTW, I do agree that many at the USPTO and applicants alike are furry, pettable cats. However, you get that in all walks of life. There are people that will stand up for what they believe and then there are people that will roll over in the face of any opposition. If you are one of the more aggressive types, you won’t know if you are right until your foe is also an aggressive type, and you both fight it out.

    Winning against a furry, pettable cat doesn’t prove you are right … it just proves you are more aggressive.

  43. 145

    To start with, I do sincerely apologize that my position confirms neither Mr. Beauregard’s conspiracy theories nor 6’s.

    [a] ‘printed matter rejection’ under Section 103 stands on questionable legal and logical footing …

    Of course it stands on questionable legal and logical footing. The logic and law of the doctrine depend on there being no functional relationship between the printed matter and the substrate. You don’t need to make new law to make that statement.

    Yes, when you extend the doctrine to the computer field you need to be mindful of additional considerations. Yes, the examiner in Lowry ignored those additional considerations. But the facts of Lowry don’t support the broad generalization the Federal Circuit gave, and Beauregard is the perfect counterexample – except that the Federal Circuit never got to hear Beauregard. Beauregard is as perfect an example of the classical printed matter doctrine as you could ever have, only with fancy metal paper.

    If you are a lawyer, then you are at the USPTO.

    Somebody hasn’t been paying attention. I’ve never worked for the USPTO in any capacity. But that shouldn’t matter anyway, since it doesn’t take more than a year or so of law school to tell dicta from actual reasons.

    You are a maroon. The “functional relationship between the data structures and the functioning of the memory itself” is the printed matter test. If you are saying Gulack doesn’t apply because of the functional relationship blah, blah, blah it means you don’t know your a $ $ from your elbow.

    I’m saying Gulack doesn’t apply in Lowry because the test for the printed matter doctrine is not satisfied. That’s also what the Federal Circuit said in Lowry. I’m surprised you have such trouble understanding that. Legally speaking, it’s about as new and ground-breaking as throwing out a murder case because the victim testified that he is still alive. Questionable legal and logical footing, indeed.

    There have been plenty of regime changes since then, and the Dudas regime was extremely patent hostile — if somebody was inclined to take the issue to the Federal Circuit, they were. However, nobody has. Why is that?

    Because being “extremely patent hostile” doesn’t mean being particularly hostile to one specific type of patents. Because it was PTO policy that Beauregard claims were a valid format, so examiners much preferred to issue easy obviousness rejections rather than quibble over claim structure. Because a fair amount of this “extremely patent hostile” business is and has always been in the applicant’s mind, and a whole lot of patents were being issued even at the worst of times.

    If sofware companies are so powerful as to prevent Beauregard claims from being challenged at the Federal Circuit by the USPTO,

    Who ever said it was a big software company conspiracy? Sure, the software companies probably don’t want their own Beauregard claims invalidated along with the plaintiff’s ones, which means that “so powerful” amounts to either not raising the issue or settling any litigation in which it’s raised. Big deal. Even I have that much power.

    But really, why would you spend money challenging the Beauregard-ness of a claim if a non-Beauregard claim in the exact same patent covering the exact same products was also asserted against you? And why would an examiner reject a Beauregard claim on a formality that doesn’t apply to co-pending independent claims when he could just as easily write an obviousness rejection that kills them all?

  44. 143

    “You must be one of those guys at a bar that all the girls talk about — not because of your looks but because you don’t take “no” for answer — and lord knows, you’ve heard that term stated in so many different ways and forms that you barely notice it anymore.”

    I doubt if girls talk about me that way at the bar. They’re usually more interested in making a pass for my privates (like weekend before this past thanksgiving one).

    Swear to good, girls are so aggressive up here. Not that I mind that much, but it really does bring into sharp focus what people are talking about when they feel like their personal space is violated.

    “In my extensive experience, the Examiners almost always back down. Those that don’t get appealed and then they back down.”

    Lulzers. Is that right? Well, do be so kind to show us these appeals. Surely you know of one, in your extensive experience, that isn’t related to one of your own personal cases.

    But you’re right, most examiners are pussies. Just like applicants. They don’t take pride in their work, its just a job.

    “While you are at it, tell us who shot JFK and what is going on in Area 51. If the best retort you got is to invoke the existence of a secret cabel that keeps all defendents from raising that issue in the Federal courts and then on appeal to the Federal Circuit, then you should go crawl back into AINAE’s hole — he’s going to need the company.”

    Lulz. I didn’t say it was a secret cabal. It is no secret that many “high-powered people” have routine contact with those who actually have the power. And I didn’t say they’ve been preventing all defendants from raising that issue. “all defendants” typically are people who 1. can’t afford to appeal or do not wish to or 2. are other software companies with patents of their own that they’d risk annihilating or 3. one of the above, who is being counseled by a typical attorneytard. Besides that, I’m not privy to the contacts made between many corporations etc. when they’re dealing with patent matters in private before they go to trial or in settlement talks. It could very well be a routinely used settlement maker or preventer of suits being filed in the first place for all I know.

    “Too late now — you are a lifer”

    Idk about that. I almost quit a month ago to take another job. Who knows when another open position, closer to home, will drop into my lap?

    Maybe I should do like that young attorney who made forms for people to fight the RIAA in their mass lawlsuit. I’ll make the forms for people to fight B claims. Maybe IANAE would want to get down on that with me.

  45. 142

    “That doesn’t mean that Gulaglol was shot down.”

    You must be one of those guys at a bar that all the girls talk about — not because of your looks but because you don’t take “no” for answer — and lord knows, you’ve heard that term stated in so many different ways and forms that you barely notice it anymore.

    “Repeat it all you want, I’m going to stick my fingers in my ears and yell ‘nah, nah, nah, nah’ until you stop saying bad things.”

    There, I fixed it for you.

    “At least, that’s been my limited experience so far.”
    In my extensive experience, the Examiners almost always back down. Those that don’t get appealed and then they back down.

    “Maybe they have been preventing that moreso than you know, on the down low.”
    While you are at it, tell us who shot JFK and what is going on in Area 51. If the best retort you got is to invoke the existence of a secret cabel that keeps all defendents from raising that issue in the Federal courts and then on appeal to the Federal Circuit, then you should go crawl back into AINAE’s hole — he’s going to need the company.

    You and AINAE are a perfect example as to why you cannot stay at the USPTO for any length of time — your brain just starts rotting from all the inane legal arguments being bandied about in there.

    Too late now — you are a lifer.

  46. 141

    “xcept that the Court stated that the printed matter doctrine stood on questional legal and logical footing.”

    It did in Lowry. So much so that it ultimately failed to be supported.

    “However, nobody has. Why is that? Could it be that every person, who both seriously looks at the issue and has a law degree, can easily determine that Lowry clearly allows for Beauregard-style claims and that it is a waste of time/money to argue otherwise.

    You need to ask yourself, why does everybody in power disagree with IANAE? It isn’t like the USPTO has been particularly friendly towards software claims the last 5 years. They continue to come up with new ways to reject claims based upon 101 — so much so that it is nearly impossible to draft claims with a reasonable expectation that how you drafted the claims would be OK under 101 3 years later when the first office action is issued. However, despite all this hostility towards software claims, nobody at the USPTO has a big enough set to give the Federal Circuit another chance? Seems odd given the circumstances.

    Or, it could be that everytime someone is sufficiently challenged they back down and the examiner preparing to ream the application never gets the chance because the claims mysterious vanish into a restriction (with no subsequent DIV filing) or cancellation. At least, that’s been my limited experience so far.

    “Why is that? If sofware companies are so powerful as to prevent Beauregard claims from being challenged at the Federal Circuit by the USPTO, why aren’t these software companies powerful enough to prevent all the other shenanigans being pulled by the USPTO regarding 101?”

    Maybe they have been preventing that moreso than you know, on the down low. Remember it was a business method, Bilski, that caused the recent uproar.

    “You have the burden of proof on this one because you are challenging the status quo …. why haven’t these claims been challenged before the Federal Circuit in the last 15 years?”

    Because applicants are pussies and I haven’t personally been sued for infringing an issued one?

  47. 140

    “I think that any view that states that the software claims, as typically put forth in Beauregard form, fail to have the requisite “functional relation to the substrate” stretches the discussion beyond credibility.”

    In other words your achilles heel is exposed and you’d like desperately for nobody to focus upon it.

    I lulzed.

    “Functionality is a given fact.”

    Functionality with the computer or with the substrate?

    “So even granting Gulack as controlling, there is no plausible way for someone to hold Beauregard claims as being non-patentable under the written matter doctrine. ”

    Not “non-patentable”, unpatentable under U.S.C 102 or 103.

    “For one to simply say that the functional relation that software does have to the substrate, and through the substrate, to the computer doesn’t apply to the facts is just not understanding the facts of this art. ”

    No it is understanding them very very well. Better than you.

    Also, I loled again.

    “(and that is all that is needed), ”

    It has to be novel and non-obvious bucko. Everything else in the claim is old (the medium). And so is that “functional relationship”.

    “and second that the actual claim is more than the spitting out – the language following the “configured to execute” is that more than spitting out – and claims are required to be read as a whole.”

    Which claim are we talking about specifically? I’ve yet to see one with this “configured to execute” langauge.

    Even if it is “configured to execute”, what does that have to do with the medium? Nothing.

    “If that “new exception” is critical to the holding, which in this case it was, by definition (textbook or otherwise) it is not dicta.”

    I believe he was saying that it was not critical. You may have missed that lulz.

    “It was precisely on that proper application that the Office realized that it was fighting a losing battle and withdrew.”

    I think it was simple bribery. Or some powerful interested party leaning on the Director. You’d be surprised to know how much of this nonsense is decided behind closed doors and with input of a shady nature.

    Turns out IANAE said pretty much everything I said anyway. So this is kinda just double.

    “Did you? “[a] ‘printed matter rejection’ under Section 103 stands on questionable legal and logical footing … the Board erroneously extended a printed matter rejection under sections 102 and 103 to a new field in this case.” First, the Federal Circuit disparages the use of the printed matter doctrine, and then the Federal Circuit states that the BPAI erroneous extended a printed matter rejection to data structures.”

    That doesn’t mean that Gulaglol was shot down.

    “It isn’t printed, ergo, it isn’t printed matter.”

    Lulzers. Someone needs to familiarize themselves with the actual printed matter doctrine.

    “Let me repeat. “[a] ‘printed matter rejection’ under Section 103 stands on questionable legal and logical footing … the Board erroneously extended a printed matter rejection under sections 102 and 103 to a new field in this case.””

    Repeat it all you want, you’re just showing that you yourself don’t understand how Lowry’s invention differed from a B claim. Specifically, that it is in a different art. It is in the art of determining the actual structure of the data structures. Which is quite different than the art of writing code and affixing it to a cd.

    It’s all very complicated, but I’m confident that if you go read Lowry 4 or 5 times, you’ll start to grasp what you are at present missing.

  48. 139

    “The court arrived at the exact same holding by finding that the good old printed matter doctrine didn’t invalidate the claim.”

    Except that the Court stated that the printed matter doctrine stood on questional legal and logical footing. When the court begins the analysis with that statement, and then states “the Board erroneously extended a printed matter rejection under sections 102 and 103 to a new field in this case” only a MPEP-fed examiner would consider it to be dicta.

    “The PTO got it wrong, and by getting it wrong they deprived the Federal Circuit of the chance to get it right.”

    There have been plenty of regime changes since then, and the Dudas regime was extremely patent hostile — if somebody was inclined to take the issue to the Federal Circuit, they were. However, nobody has. Why is that? Could it be that every person, who both seriously looks at the issue and has a law degree, can easily determine that Lowry clearly allows for Beauregard-style claims and that it is a waste of time/money to argue otherwise.

    You need to ask yourself, why does everybody in power disagree with IANAE? It isn’t like the USPTO has been particularly friendly towards software claims the last 5 years. They continue to come up with new ways to reject claims based upon 101 — so much so that it is nearly impossible to draft claims with a reasonable expectation that how you drafted the claims would be OK under 101 3 years later when the first office action is issued. However, despite all this hostility towards software claims, nobody at the USPTO has a big enough set to give the Federal Circuit another chance? Seems odd given the circumstances.

    Why is that? If sofware companies are so powerful as to prevent Beauregard claims from being challenged at the Federal Circuit by the USPTO, why aren’t these software companies powerful enough to prevent all the other shenanigans being pulled by the USPTO regarding 101?

    You have the burden of proof on this one because you are challenging the status quo …. why haven’t these claims been challenged before the Federal Circuit in the last 15 years?

    Why?

    Why?

    Why?

  49. 138

    “Shot down? I think you mean, reaffirmed. Quite explicitly. Did you even bother to read the case?”

    Did you? “[a] ‘printed matter rejection’ under Section 103 stands on questionable legal and logical footing … the Board erroneously extended a printed matter rejection under sections 102 and 103 to a new field in this case.” First, the Federal Circuit disparages the use of the printed matter doctrine, and then the Federal Circuit states that the BPAI erroneous extended a printed matter rejection to data structures.

    “it’s a completely unwarranted generalization” Really, like much of your comments? A computer data structure is not printed matter. It isn’t printed, ergo, it isn’t printed matter.

    “As a lawyer, I can confidently tell you that since Lowry applied the old and well-known exception to the printed matter doctrine, the case was already decided based on existing law and any new exception they purported to create to arrive at the same result is the textbook definition of dicta.”

    Stop with this “[a]s a lawyer cr$%.” If you are a lawyer, then you are at the USPTO. If you are a lawyer at the USPTO, you are likely with the BPAI – which means your lawyering skills are likely little better than the average ambulance-chasing hack.

    “Gulack doesn’t apply to Lowry because, as the Federal Circuit pointed out in Lowry, there is an intimate functional relationship between the data structures and the functioning of the memory itself.”

    You are a maroon. The “functional relationship between the data structures and the functioning of the memory itself” is the printed matter test. If you are saying Gulack doesn’t apply because of the functional relationship blah, blah, blah it means you don’t know your a $ $ from your elbow.

    “It’s the test from Gulack, that was correctly applied in Lowry, and that never got a chance to be correctly applied in Beauregard. No court has ever shot it down, unless you can provide an authority to the contrary.”

    Let me repeat. “[a] ‘printed matter rejection’ under Section 103 stands on questionable legal and logical footing … the Board erroneously extended a printed matter rejection under sections 102 and 103 to a new field in this case.”

    Go crawl back into your hole and stop relying upon the MPEP for your analysis.

    Also, please read the frigg’n case: digital-law-online.info/cases/32PQ2D1031.htm

  50. 136

    Whether Mr. Beauregard’s viewpoint of Gulack as controlling is in fact correct or not, I think that any view that states that the software claims, as typically put forth in Beauregard form, fail to have the requisite “functional relation to the substrate” stretches the discussion beyond credibility.

    Beauregard claims are along the lines of “instructions stored on a readable medium, the instructions for doing (things)”. We can agree on that, right?

    Now, what’s the substrate? To my mind, it can only be the readable medium. The information isn’t written on anything else, and nothing else structural is claimed.

    Now, where’s the functional relationship? It’s not with the readable medium. It’s with the computer. And the computer is deliberately unclaimed, because the whole point of Beauregard is that you can sue someone who only sells a disk in a box.

    There is a real difference between mere written matter and something configured to execute.

    Okay, so what’s written is instructions. Information that specifies to the reader that certain things are to be done. Just like a recipe in a cookbook. Just like a whimsical proverb on a coffee mug. Now, if you want to interpret Beauregard claims as a matter of law to be limited to self-executing instructions, that automatically run when you insert the medium into the computer, I think you’ll find you’ve created a trivial design-around without addressing the real problem that the computer still isn’t the substrate.

    because this ignores the very real fact that first this spitting out itself is is a functional relationship (and that is all that is needed),

    No, that’s not all that is needed. Outputting the information is not functionally related to the information. Outputting the information is the exact same thing a piece of paper does when you look at it. It’s what the medium was configured to do even before the software was written to it. The medium doesn’t know or care what the information is, and it acts exactly the same no matter what program is on it, or even if it’s blank. It responds to read commands from the computer, and that’s it.

    If you don’t mind a tangent to a tangent (and I’m sure you do), getting the software to and from the medium is extra-solution activity. Getting itself read off the medium is not the function of the software, and it’s nothing to do with the invention.

    If that “new exception” is critical to the holding, which in this case it was, by definition (textbook or otherwise) it is not dicta.

    Ah, but it wasn’t “critical to the holding”. The court arrived at the exact same holding by finding that the good old printed matter doctrine didn’t invalidate the claim. Take out all that talk about the doctrine not applying to computers, and the case still makes perfect logical sense while arriving at the exact same result. That’s dicta.

    but this distorts that actual history in which the Patent Office did apply the test and did decide for itself.

    Isn’t that what I said? The PTO decided for itself instead of asking the people whose job it is to tell the PTO what the law is. The PTO got it wrong, and by getting it wrong they deprived the Federal Circuit of the chance to get it right.

  51. 135

    I have not had success in the past trying to hold a conversation with IANAE, and so I write these comments with only a small hope of some meaningful reply this time. Quite frankly, I don’t see how a reply could have substance given the misstatements made and the past history of my interactions.

    In not a small sense, I think the entire Gulack as controlling authority is a red herring. Whether Mr. Beauregard’s viewpoint of Gulack as controlling is in fact correct or not, I think that any view that states that the software claims, as typically put forth in Beauregard form, fail to have the requisite “functional relation to the substrate” stretches the discussion beyond credibility. There is a real difference between mere written matter and something configured to execute. Functionality is a given fact. You cannot not apply that fact. So even granting Gulack as controlling, there is no plausible way for someone to hold Beauregard claims as being non-patentable under the written matter doctrine.

    For one to simply say that the functional relation that software does have to the substrate, and through the substrate, to the computer doesn’t apply to the facts is just not understanding the facts of this art. It is a gross misdirection to merely claim that “the memory does nothing more than store the information and spit it out when requested”, because this ignores the very real fact that first this spitting out itself is is a functional relationship (and that is all that is needed), and second that the actual claim is more than the spitting out – the language following the “configured to executeis that more than spitting out – and claims are required to be read as a whole.

    Misrepresentation of fact is joined by misrepresentation of law. As I read this thread and watched it unravel in the usual manner, I am struck by only what I can label as sheer audacity of some to misrepresent a court’s holding and redefine “dicta.” I really take umbrage at the statement “ As a lawyer, I can confidently tell you that since Lowry applied the old and well-known exception to the printed matter doctrine, the case was already decided based on existing law and any new exception they purported to create to arrive at the same result is the textbook definition of dicta.” Mainly because it is false, and because it is advanced under the guise that it must be true, because a lawyer is saying so. If that “new exception” is critical to the holding, which in this case it was, by definition (textbook or otherwise) it is not dicta.

    IANAE, you are free to not like the holding of the case, but you are not free to misrepresent what the holding is. Granted, we are merely conversing on a blog, but this is just too flagrant to overlook and any credibility to your position vanishes when your argument follows such a false style.

    You further represent that there was no chance for a “correct decision” and that “the test never [had] a chance to be correctly applied”; but this distorts that actual history in which the Patent Office did apply the test and did decide for itself. It was precisely on that proper application that the Office realized that it was fighting a losing battle and withdrew. It doesn’t take a court’s authority beyond that already presented. It is just not credible to re-paint history based on how you want the law to read.

  52. 133

    “and it has been for a very long time.”

    I wouldn’t say that exactly…

    The USSC goes about its daily business knocking off CAFC precedent from much further back than that. Although, Lowry is fairly here to stay I’d say.

    “Regardless, all your “functional relationship to the substrate” talking is legally-unsupported blathering. That is a printed matter test, which has been shot down by the Federal Circuit 15 years ago.”

    Shot down? I think you mean, reaffirmed. Quite explicitly. Did you even bother to read the case?

    “What you (and many on the BPAI) get hung up”

    Nah, they’re just hung up on, if anything, is not understanding what is being claimed. Admittedly, that is easy to misunderstand.

  53. 132

    BTW – what is it about “[t]hey are not analogous to printed matter” that has you confused?

    The bit about how they’re not analogous to printed matter because they’re functionally related to the substrate by changing how data is stored and accessed in the memory itself (which is an exception to the doctrine even for paper substrates), and how it’s a completely unwarranted generalization (and therefore dicta) that a printed matter exemption would apply indiscriminately to all software.

    Wave your hands in the air all you want, but Lowry is controlling law, and it has been for a very long time.

    Yes, it’s controlling law that doesn’t apply on the facts.

    Your assertion that the language was “dicta at best” shows you aren’t very good at reading case law – understandable for an examiner.

    Huh. Maybe that’s why the PTO mistakenly thought Lowry applied in Beauregard. They’re all a bunch of examiners.

    As a lawyer, I can confidently tell you that since Lowry applied the old and well-known exception to the printed matter doctrine, the case was already decided based on existing law and any new exception they purported to create to arrive at the same result is the textbook definition of dicta.

    It’s a shame about Beauregard, really. That would have been a perfect case to refocus the Federal Circuit on the doctrine and make the correct decision in a case that actually depended on it.

    The basis for the BPAI’s rejection was that it was printed matter and the BPAI relied upon Gulack. When the Federal Circuit explicitly says Gulack doesn’t apply and then you rely upon Gulack as support for your analysis, you are up the proverbial creek without a paddle. Good luck citing Gulack to the Federal Circuit.

    Gulack doesn’t apply to Lowry because, as the Federal Circuit pointed out in Lowry, there is an intimate functional relationship between the data structures and the functioning of the memory itself. That’s not a new exception to the printed matter doctrine, it’s the same old exception that has always existed. It’s the same exception that was applied a century ago in all those printed ticket cases we discussed in another thread. It’s also an exception that clearly doesn’t apply to Beauregard claims, because in a Beauregard claim the memory does nothing more than store the information and spit it out when requested.

    Regardless, all your “functional relationship to the substrate” talking is legally-unsupported blathering. That is a printed matter test, which has been shot down by the Federal Circuit 15 years ago.

    It’s the test from Gulack, that was correctly applied in Lowry, and that never got a chance to be correctly applied in Beauregard. No court has ever shot it down, unless you can provide an authority to the contrary.

  54. 131

    “In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983) (“the critical question is whether there exists any new and unobvious functional relationship between the printed matter and the substrate.”); accord In re Ngai, 367 F.3d 1336 (Fed. Cir. 2004).”

    Printed matter cases — try again.

    “According to Lowry, the data structures provide tangible benefits: data stored in accordance with the claimed data structures are more easily accessed, stored, and erased. Lowry further notes that, unlike prior art data structures, Lowry’s data structures simultaneously represent complex data accurately and enable powerful nested operations. In short, Lowry’s data structures are physical entities that provide increased efficiency in computer operation. They are not analogous to printed matter.” Note the lack of mention of tying the alleged printed matter (i.e., the data structure) to the memory (i.e., the substrate).

    BTW – what is it about “[t]hey are not analogous to printed matter” that has you confused? The “new and unobvious functional relationship between the printed matter and the substrate” is the heart of the printed matter test. In re Lowry says (i) data structures are not analogous to printed matter and (ii) “[t]he printed matter cases have no factual relevance here.”

    Wave your hands in the air all you want, but Lowry is controlling law, and it has been for a very long time.

    Your assertion that the language was “dicta at best” shows you aren’t very good at reading case law – understandable for an examiner. The basis for the BPAI’s rejection was that it was printed matter and the BPAI relied upon Gulack. When the Federal Circuit explicitly says Gulack doesn’t apply and then you rely upon Gulack as support for your analysis, you are up the proverbial creek without a paddle. Good luck citing Gulack to the Federal Circuit.

    Regardless, all your “functional relationship to the substrate” talking is legally-unsupported blathering. That is a printed matter test, which has been shot down by the Federal Circuit 15 years ago.

    What you (and many on the BPAI) get hung up is the language in Lowry following this qualifier “”[e]ven assuming, arguendo, that data objects and data structures are analogous to printed matter, the Board erred in its reliance on Gulack.” This is dicta because this is not what the Federal Circuit relied upon in reversing the BPAI. It was a statement that EVEN IF data structures are analogous to printed matter, Gulack still doesn’t apply. Read the entire case – not the little snippets that the PTO likes to publish in the MPEP or what the BPAI cites in its decisions.

  55. 130

    Another step down the path – can a computer program (the printed matter) – as is typically claimed – not be functionally related to the substrate?

    It would seem to be an inherent requirement that the program so claimed must be functionally related, and Iza don’t ever see anyones saying that there is an absence of functional relatin here (well, cepts my main man’s coffee cup examples and I haven’t made up my mind on whether those are meant to be over the top phececious examples, or they be the result of Nazgul feedings).

  56. 129

    “Curious about one thing – if the computer program (the printed matter) is “functionally related to the substrate”, what then?”

    Then In re Lowry?

  57. 128

    Curious about one thing – if the computer program (the printed matter) is “functionally related to the substrate”, what then?

  58. 126

    “In doing so, we do not interpret the board as holding that the printed matter can be ignored because it, by itself, is non-statutory subject matter.”

    Right. We don’t ignore it because it’s non-statutory. We ignore it because it’s not functionally related to the substrate.

  59. 125

    So I suppose that there is some irony that my aim of calling out that egregious nonsense appears to have set you off.

    You really need to get back on whatever medication you’ve recently discontinued, Noise.

    Have a nice weekend.

  60. 124

    I don’t have a particular aim here, other than to… call out some of the more egregious nonsense that appears here

    Cy Nical,

    How nice then, that when I call out the egregious nonsense that appeared here under your pen name, you descend into a cloud of dust, red herrings and name calling. You sir are the noise here – all noise and no signal. If our little conversation approaches an “endless, subject-less argument”, it is only because you are not backing up your opinion as asked. So I suppose that there is some irony that my aim of calling out that egregious nonsense appears to have set you off.

    What do you see in that mirror?

  61. 123

    To put Gulack into perspective, the very next line from that quote:

    In doing so, we do not interpret the board as holding that the printed matter can be ignored because it, by itself, is non-statutory subject matter.

  62. 122

    Cy Nical: I think you’ve already provided the answer to my question.

    To be fair, it was never really in question.

  63. 121

    6,
    You are late to the game and way, way out of your league.

    Actually, he seems to have a decent handle on this one, although Bilski is entirely unnecessary. (This is the same error that got the examiner in trouble in the “financial instrument” application that was allowed.) Nice work, 6 – I’ll give you a B-minus. As easy as this exercise has proved to be, I’m surprised that NoiseWipeA had so much trouble with it.

  64. 120

    The answer to your question is up to you.

    I think you’ve already provided the answer to my question. Thank you.

  65. 119

    6,

    You are late to the game and way, way out of your league.

    Stay quiet and try not to embarass yourself more than usual.

  66. 118

    Well thank you Cy Nical, but that is not appropriate.

    I did not ask for your citation – I asked for IANAE’s. I did not ask for just any citation, I asked for the clown who throws BS and cannot back up his assertions, that would only take ten seconds (per the clown).

    Unless you are IANAE, mind your business. If you are IANAE, stick to the right moniker, so that the record is clear. The answer to your question is up to you.

  67. 117

    “manufactured – manmade; produced by humans rather than nature.”

    Manufactured is not manufacture tard.

    “There is no legal basis for excluding this contemporary common meaning. On what could you possibly base your opinion upon? ”

    Take a look see at how this issue, or a closely analogous one anyway, was handled in Nuijten lulz.

    “The Supreme Court has defined the term “machine” as “a concrete thing, consisting of parts, or of certain devices and combination of devices.” Burr v. Duryee, 68 U.S. (1 Wall.) 531, 570 (1863). This “includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result.” Corning v. Burden, 56 U.S. 252, 267 (1854).”

    I’m not entirely sure that a financial instrument is a concrete thing consisting of parts. And even if it were, in so far as the claim perhaps is limited to a sheet of paper etc, it is irrelevant. Bbbbbbbilski.

    “The Supreme Court has defined “manufacture” (in its verb form) as “the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery.” Diamond v. Chakrabarty, 447 U.S. 303, 308 (1980) (emphasis added) (quoting Am. Fruit Growers, Inc. v. Brogdex Co., 283 U.S. 1, 11 (1931)).5 The term is used in the statute in its noun form, Bayer AG v. Housey Pharms., Inc., 340 F.3d 1367, 1373 (Fed. Cir. 2003), and therefore refers to “articles” resulting from the process of manufacture. The same dictionary the Supreme Court relied on for its definition of “manufacture” in turn defines “article” as “a particular substance or commodity: as, an article of merchandise; an article of clothing; salt is a necessary article.” 1 Century Dictionary 326 (William Dwight Whitney ed., 1895) (emphasis in original).
    These definitions address “articles” of “manufacture” as being tangible articles or commodities.”

    I’m not entirely sure that a financial instrument is a tangible article or commodity. And even if it were, in so far as the claim perhaps is limited to a sheet of paper etc, it is irrelevant. Bbbbbbbilski.

    “Now that we have a definition, and we have properly classified “financial instrument,” can you identify the raw materials that are used in manufacturing these instruments, and the new forms, qualities, properties, or combinations that are given to these raw materials? ”

    Wait wait I can take this one. Paper and written upon paper respectively!

  68. 116

    In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983) (“the critical question is whether there exists any new and unobvious functional relationship between the printed matter and the substrate.”); accord In re Ngai, 367 F.3d 1336 (Fed. Cir. 2004).

    Now you’ve been called out. Who’s a clown?

  69. 115

    You just cannot show me the support for your asserted test because it does not exist.

    If I told you the sky is blue, you’d insist on Federal Circuit authority to back it up. And even if I had such authority, I wouldn’t post it.

  70. 113

    I can’t. I won’t.

    Fixed.

    Face it – you are full of BS, hiding behind the excuse of “it’s trite law“. You just cannot show me the support for your asserted test because it does not exist. You have spent far more than the ten seconds you claim it would take me to find spinning your coy BS and shoveling more on top of it.

    You’ve been called out and you have no answer. You are nothing but a clown.

  71. 112

    If you cannot, then it is clear that your BS has been called. If you can, then we can see how accurate your legal analysis is and if your position is indeed supported.

    I can. I won’t.

    You know it’s trite law that the printed matter has to be functionally related to the substrate. It would take you literally ten seconds to look up an authority on the point. You just refuse to accept it insofar as it applies to Beauregard claims.

    Tell you what, send me a billing address and a deposit, and I’ll dig you up a citation. Unless there’s a conflict of interest, which seems likely now that I think about it.

  72. 111

    IANAE,

    Stop the BS, if you can.

    You claim “the” test:
    Too bad that’s not the test. The test is that the medium must be functionally interrelated with what is written on it.

    The only functional relationship is between the code and the computer, so unless you’re going to claim the computer as the medium you have nothing but unpatentable printed matter.

    Posted by: IANAE | Dec 02, 2010 at 04:59 PM

    – and I asked you to back it up with a legal citation of authority for your position. I did not ask for the Google frontpage. I did not ask for your help for me to find the citation that I asked you to provide.

    Give me one or not.

    If you cannot, then it is clear that your BS has been called. If you can, then we can see how accurate your legal analysis is and if your position is indeed supported.

    Either way is fine – but lose the coy obtuseness, you aonly look like a jcckcss doing that.

  73. 109

    I want the cite I asked for. The only cite I asked for from you.

    You want a cite to the rule that the printed matter doctrine depends on a functional relationship between the printed matter and the substrate?

    You can find it at the link I posted earlier.

  74. 108

    You want a cite to Lowry?

    Your obtuseness here is too shallow.

    I want the cite I asked for. The only cite I asked for from you.

    Are you finding it too difficult to actually back up the BS you spout?

  75. 107

    Still waiting for that proper cite.

    You want a cite to Lowry?

    You can find it at the link I posted earlier.

  76. 106

    That’s dicta at best, an incorrectly-decided case at worst, but most likely an incorrect reading of Lowry. We’ve discussed this at length before.

    Still waiting for that proper cite.

  77. 105

    I do not know what your problem is and why you think that your making all this noise makes your opinion somehow legally sound. What is your aim here? It is your pathology that seems questionable. Can you make or stick to an actual point and stay on topic please?

    The best defense is a good offense, eh, Noise? I don’t have a particular aim here, other than to occasionally point out something I find interesting, or to call out some of the more egregious nonsense that appears here. But my aim is not to get into one of your endless, subject-less arguments. Have a nice life.

  78. 104

    The printed matter cases have no factual relevance here. Nor are the data structures analogous to printed matter. In re Lowry

    That’s dicta at best, an incorrectly-decided case at worst, but most likely an incorrect reading of Lowry. We’ve discussed this at length before.

    Lowry’s claims weren’t Beauregard claims at all. They were claims to a memory that recited the actual structure and function of the memory itself. That’s even arguably why the Federal Circuit distinguished the printed matter doctrine, and it would have distinguished the printed matter doctrine just as well had the medium been a sheet of paper. Lowry changed how the information stored in the memory was processed, which is what got the court’s attention. Beauregard claimed information stored in a memory that is simply sent to some other device when the time comes. That’s as “printed matter” as it gets, even if the PTO doesn’t have the authority or the courage to say so.

    Lowry didn’t claim the computer either, but Lowry didn’t have to. The “printed matter” was functionally related to the memory (the substrate), so the doctrine didn’t apply.

  79. 102

    Cy Nical,

    Your comment “and concluded that the term does not encompass every physical effect that man can produce.” is taken out of context. It is not a comment addressing the breadthof the category of manufacture. It is a comment on the judicial exceptions.

    Stay on topic please and stop trying to cloud the signal with your noise.

  80. 101

    Cy Nical,

    It appears that you are the one making all the noise here. Clearly, your signal is weak and you are trying to draw attention away from your unsubstantiated opinion by asking for citations and pointing out that manufacture is a noun. These red herrings cannot help you. You seem to want to point out that the one particular meaning I point out as a perfectly common and acceptable definition is somehow deficient, that somehow the choice of my meaning affects the breadth of the category. That simply makes no sense. It is quite clear that you are kicking up dust to cover your faulty viewpoint, your position that is all about the noise. Your desire to exclude a common understanding is what you are trying to get away with and what you fail at. The traditional definitions are perfectly acceptable , but that is not the point,. The point is that the definition and common understanding that I provided is also perfectly acceptable. The category simply is larger than you have been willing to accept. You seem to think that you have some legal basis for excluding definitions when the Court has clearly held the opposite.

    I do not know what your problem is and why you think that your making all this noise makes your opinion somehow legally sound. What is your aim here? It is your pathology that seems questionable. Can you make or stick to an actual point and stay on topic please?

  81. 100

    Only if you unmask yourself.

    MM wrote: >It’s either Noise or a similar wonderful human being.

    There I fixed it for you.

  82. 99

    Incidentally, the Bilski court’s very limited discussion of “manufacture” cited (approvingly) Chakrabarty. It’s instructive to see what the Chakrabarty court actually said:

    Guided by these canons of construction, this Court has read the term “manufacture” in §101 in accordance with its dictionary definition to mean “the production of articles for use from raw materials prepared by giving to these materials new forms, qualities, properties, or combinations whether by hand labor or by machinery.”

    The Federal Circuit has discussed at length what an “article” is, and concluded that the term does not encompass every physical effect that man can produce. Whether or not you agree, that suggests that the equation of “manufacture” to “man-made” is debatable.

    Now, who is being intellectually dishonest, NWPA? If you ask me, intellectual dishonesty is a good term to describe those who enter every debate with a proclamation that “there is no debate.”

    Now that we have a definition, and we have properly classified “financial instrument,” can you identify the raw materials that are used in manufacturing these instruments, and the new forms, qualities, properties, or combinations that are given to these raw materials? Thanks.

  83. 98

    Given the Supreme Court’s majority view on how to define manufacture (as cited in Bilski), there is no debate.

    Right. The Bilski court said that it has read the term “manufacture” (which is a noun, by the way, in the statute) in accordance with dictionary definitions. And you understand that to mean that you can unilaterally select the “wiktionary” definition of your choice, even if it’s the definition for a different word.

    You do not have a legal basis for holding your opinion. If you have one, let’s see it.

    See, this is how we can tell that it’s Noise. Non sequiturs like this one, plus mangled syntax like “This dependence on dictionary meaning is nowhere limited to the traditional view you espouse” are pretty distinctive. It’s either Noise or a similar pathology.

  84. 97

    Well, IANAE,

    Are you ready to stop your BS and actually post a cite to your interpretation of the written matter doctrine test?

    Let’s see you back your philosophy with some small modicum of actual legal precedent.

  85. 96

    Where’s the problem. “Manufacture” means “making things”. Always has, always will. The Wikipedia link confirms.

    We can have a debate about “thing” if you like.

    When we do, I imagine the word “abstract” will feature.

  86. 95

    Cyn i cal: have you no shame? Intellectual dishonesty is a sin.

    And you are one of the Rust Brain of the blog.

  87. 94

    Cy Nical,

    The citation for this common contemporary meaning of manufacture is link to en.wiktionary.org
    Does it matter that much?

    You should be more concerned about the cite to Bilski – that cite damns your opinion. If you do not understand what I said, let me restate it. Your opinion is based on a traditional view of manufacture. That view simply is not all inclusive of the legal meanings that word has, and clearly the class is a lot larger than you think it is. Given the Supreme Court’s majority view on how to define manufacture (as cited in Bilski), there is no debate. You do not have a legal basis for holding your opinion. If you have one, let’s see it.

    I do not think this is noise. I am pretty sure my signal is clear.

  88. 93

    This dependence on dictionary meaning is nowhere limited to the traditional view you espouse.

    This sentence makes no sense. And how do you know what I espouse? All I did was suggest that it was up for debate.

    manufactured – manmade; produced by humans rather than nature.

    Citation, please?

    Welcome back, Noise.

  89. 92

    whether “man-made” = “manufactured” is up for debate, in my humble opinion.

    Why?

    Bilski, slip op at page 6 (within the majority opinion):

    In patent law, as in all statutory construction, “[u]nless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary, common meaning.’” Diehr, supra, at 182 (quoting Perrin v. United States, 444 U. S. 37, 42 (1979)). The Court has read the §101 term “manufacture” in accordance with dictionary definitions, see Chakrabarty, supra, at 308 (citing American Fruit Growers, Inc. v. Brogdex Co., 283 U. S. 1, 11 (1931))…

    This dependence on dictionary meaning is nowhere limited to the traditional view you espouse. It also includes this definition:

    manufactured – manmade; produced by humans rather than nature.

    The repeated references back to the Chakrabarty and the driving thought of “anything under the sun, made by man” clearly defeats your humble opinion. There is no legal basis for excluding this contemporary common meaning. On what could you possibly base your opinion upon?

    It is truly time to leave the 19th century behind.

  90. 91

    Mr. Beauregard,

    The directive to try again for a legitimate cite was not aimed at your use of In re Lowry, but rather to IANAE’s preposterous link to Google as a citation to his proclamation of just what “the test” is.

    IANAE is clearly outside the depths of his knowledge here.

  91. 90

    “Cite not accepted – lacks legal foundation.”

    Next time you are at the Federal Circuit, you can explain to them how they got it wrong. Until then, it is precedential case law that applies to the USPTO, BPAI, and U.S. District Courts.

    Nice try, crawl back into your hole.

  92. 89

    A manufacture of course. Cy, sockie.

    Well, now we’re getting somewhere. Now, are we talking about printed documents and financial instruments instantiated in computer-readable-media, or do we mean something broader than that? If the former, then why doesn’t the printed matter doctrine apply?

    What about my lusty, I mean sleepy, thoughts and hopeful prayers? Are those patentable, so long as they’re not printed?

  93. 87

    So, what? The point is that IANAE’s example illustrates that the medium is not causing the computer to take those specific steps that are listed, but to take different steps that are then changed by the computer into the infringing steps.

  94. 86

    “Printed matter doctrine.”

    The printed matter cases have no factual relevance where “the invention as defined by the claims requires that the information be processed not by the mind but by a machine, the computer.” In re Lowry.

    The printed matter cases have no factual relevance here. Nor are the data structures analogous to printed matter. In re Lowry

    Nice try … move along.

  95. 85

    “computer readable medium is functionally interrelated with the computer”

    So wut? Is the computer at issue in the claim? I don’t believe that I’ve ever seen one where it is.

  96. 81

    The computer readable medium is functionally interrelated with the computer and causes the specific steps to be performed.

    Ah, now that would be your old nonsense argument about Beauregard claims.

    Too bad that’s not the test. The test is that the medium must be functionally interrelated with what is written on it.

    The only functional relationship is between the code and the computer, so unless you’re going to claim the computer as the medium you have nothing but unpatentable printed matter.

  97. 80

    I wonder how much longer it is going to be until MM starts to cry that he isn’t a rust brain and it isn’t fair that that mean and nasty NWPA keeps calling him a rust brain.

  98. 79

    And, IANAE, come now: you aren’t going to try your old nonsense arguemnt about Beuaregard claims are you?

    The computer readable medium is functionally interrelated with the computer and causes the specific steps to be performed. Now don’t make me spend the time to go through this AGAIN with you.
    Rust brain.

  99. 77

    Mah bad, that was actually patent docs that had Mkkilineni v. Stoll.

    Nice – I hadn’t read that one.

    For those of you following along at home, here’s a portion of published claim 1.

    1. A method of inducing sleep, comprising the steps of:(a) placing on the nose of a user a nose-band with adhesive end-cups that stick to the skin; … (c) initiating tuning of the user’s brain by concentrating the mind upon one principal thought, generating a set of positive-signals in the mind, inputting the positive-signals into neurons in the brain, tuning the new-signals replacing the old-signals in the brain, and decreasing the frequency of excited-signals in the cortex to calm the mind and cause the brain to produce melatonin; …

    6, this guy’s problem is that he claimed a process. Instead, he should have claimed “a sleepy thought.” Because sleepy thoughts aren’t processes, Bilski (and the Interim Guidelines) don’t apply, at least under the successful approach taken by the “financial instrument” guy above.

    How about:

    1. A sleepy thought, comprising:
    a bevy of Victoria’s Secret models cavorting about in various states of undress; and

    Oh, wait, that’s not a sleepy thought at all!

  100. 75

    Cy But I do have a bias against non-statutory claims that purport to exclude me from entering into various relationships, even in the absence of any physical steps or documentation of those relationships. Those cross a line, even if it’s a fuzzy, non-tangible, transitory line.

    Why do you hxte progress?

    /patent txabxgger off

  101. 71

    but no sane person would consider it manufactured.

    W

    T

    F

    Because something is solely made by a human instrument (vocal chords) means that it is not a manufacture?

    This is utter nonsense.

  102. 70

    And as far as I’m concerned, you win this non-debate.

    Awesome. I’ve never won nothing like this before.

  103. 69

    The nice things about my US colleagues is how much they learn from their college courses in computer science and in law (including patent law?), and how they manage to forget it all when they start professional practice.

    The nice thing about skeptical Englishmen (and I mean this sincerely) is how withering and reserved they can be, at the same time. My favorite furriners, they are…

  104. 68

    I don’t think it’s debatable at all. It’s pretty easy to think of something that’s man-made but not “manufactured”, and a single counterexample disproves the identity.

    And as far as I’m concerned, you win this non-debate.

  105. 67

    but whether “man-made” = “manufactured” is up for debate, in my humble opinion.

    I don’t think it’s debatable at all. It’s pretty easy to think of something that’s man-made but not “manufactured”, and a single counterexample disproves the identity.

    When you speak, the sound of your voice is man-made, but no sane person would consider it manufactured. Probably not unrelated to the fact that the sound is a transitory waveform, and “manufacture” has implications of both assembly and physicality.

    Now, the little tape recorder that records your speech, that’s manufactured.

  106. 66

    However, as you havent made that same proclamation, are ya goin to answer my question?

    My apologies – I thought it was a rhetorical question. But I’ll have to concede defeat on the “transitory” question – I can’t define it precisely either.

    … unless I were to assume that you agree that Nuijten is simply wrong. Is that a correct assumption?

    I agree that the reasoning in Nuijten was unsatisfactory. I also agree that Nuijten clearly dealt with man-made waveforms, but whether “man-made” = “manufactured” is up for debate, in my humble opinion.

    Are business method patents categorically unpatentable?

    Of course not. To the contrary, if they’re directed to methods, they’re categorically patentable, unless they fall within one of the judicially-created exceptions to patentable subject matter. But what does this have to do with financial instruments or propagated signals? Oh wait, I see.

    … judges have explicitly stated that which category something fits in is only of secondary importance.

    I’m working from memory here, but I believe that judges have (once?) stated that the category is of secondary importance when determining whether it is directed to a pre-emptive realization of an abstract concept. However, I’m pretty certain that judges have repeatedly stated that claimed subject matter has to fall into some category. I think it’s interesting that nobody will identify the category that “financial instrument” belongs in.

    That bias simply is not supported by law (which causes all sorts of consternation for windmill chasers).

    I’m not sure where you detect a bias against “non-hard sciences” in me. Or consternation, for that matter. I think economics is a lot of fun, for instance. I also am a pragmatic fellow, more concerned with what the law is than what it should be, so I don’t spend a lot of emotional energy worrying about the fate of transitory electromagnetic signals, encoded computer-readable-media, or abstract business method claims. But I do have a bias against non-statutory claims that purport to exclude me from entering into various relationships, even in the absence of any physical steps or documentation of those relationships. Those cross a line, even if it’s a fuzzy, non-tangible, transitory line.

  107. 65

    The nice things about my US colleagues is how much they learn from their college courses in computer science and in law (including patent law?), and how they manage to forget it all when they start professional practice.

  108. 64

    Malcolm: PTO’s current position in a nutshell:

    That proves their position is nuts.

    NWPA: IANAE’s argument is wrong. causing a computer to execute a method means the particular steps are caused by the computer readable medium. IANAE’s argument is nonsense as usual.

    If inserting the medium into the computer results in the steps being performed, and not inserting the medium into the computer does not result in the steps being performed, the medium has caused the steps to be performed. That’s the test for whether off-the-shelf software infringes, right? Put the disk in, see what happens.

    Funny how you insist Bilski was a 112 issue, but you refuse to tackle the real 112 issues when they stare you in the face. Just keep repeating “IANAE is wrong” until you believe it.

    NWPA: If a method that makes a financial instrument isn’t per se ineligible, then a financial instrucment isn’t per se ineligible either.

    That would be the MoT test in reverse, right? If a method is eligible, it must be tied to one of the other statutory classes, and therefore the product of that method is statutory for some reason. Too bad MoT isn’t the only test, or it would have worked in reverse.

    A method of producing a transient signal is statutory. The signal thereby produced is not.

    Which brings us back to the real question: What statutory class is a financial instrument, again?

  109. 63

    Thanks so much, Cy for rememberin. So many chuckleheads havta be reminded.

    However, as you havent made that same proclamation, are ya goin to answer my question? Iza pretty sure that “I’m not a huge fan of Nuijten either” is not an actual answer – unless I were to assume that you agree that Nuijten is simply wrong. Is that a correct assumption?

    And since ya showed such awareness to remember my position, let me offer a few other observations/questions:

    Are business method patents categorically unpatentable?

    The easy observation here is emphatically “no”. But the question is not geared to business “methods” you might say, and that would be correct as far as that goes. However, I would rejoin with the observation that a skilled practicioner can lay a claim in one category that parallels another category, and that judges have explicitly stated that which category something fits in is only of secondary importance. Then circle back to the “business” side and realize that without a per se exclusion, what this means is that the “hard” physical sciences are no more (and no less) right for patenting than the soft, non-physical sciences. That bias simply is not supported by law (which causes all sorts of consternation for windmill chasers).

    Ya still with me, Cy?

    Lastly, I would ask ya to show me where a manufacture must be a “tangible”, hard physical thing. Roll up the basis for your unhappiness with Nuijten (which by the way clearly dealt with a man-made manufactured wave form), and tear down this wall of bias against a non-hard “science”.

    Where does that path logically lead ya?

    Happy trails.

  110. 62

    Show me something that is not transitory. Anything. Will somebody cognitively explain what the state of “transitory” has to do with anything?

    I’m not a huge fan of Nuijten either. But notwithstanding the imprecision of language and (abstract) concepts like “abstract” and “transitory,” surely you’ll agree that there is something fundamentally different between an electromagnetic signal making its way through space and a CD with a computer program burned onto it. Or not?

    As to the rest of your post, I’m afraid I don’t get it. Are you really defending “financial instrument” claims?

    Oh, I forgot, you don’t do answers.

  111. 61

    If a method that makes a financial instrument isn’t per se ineligible, then a financial instrucment isn’t per se ineligible either.

    Right – show me where that is written!
    That’s not only breathtakingly bad logic, it also fails to address the question. I answered your question, now please answer mine: in which of the four statutory categories does a “financial instrument” belong?

  112. 59

    I remember in 97′ as I was about to go,
    I see out a window, a Monkey moving wires too and fro.
    And on the phone that week, a Lawyer told me so,
    That collusion it was legal, so there now you know.
    The Lawyer then as quickly, left the unnamed Bar,
    Did you know that story, whom ever you think you are?

  113. 58

    considering In re Nuijten

    Yes, let’s consider that.

    Show me something that is not transitory. Anything. Will somebody cognitively explain what the state of “transitory” has to do with anything?

    What weza got here is a reloading of my main man’s carpet bombing inventory with the “abstract” word. Everything is abstract at different levels – currency is abstract and yet the twenty dollar bill in my pocket is most definitely not abstract and yet, still, currency. Everything is building blocks and abstractions – it is all gobblygook. As shown by the multitude here, when you don’t get what is going on, you don’t understand the art, it is far to easy to sneer at it.

    The multitudes here who just don’t get what the written matter doctrine means is astounding. And more to the point, the edges of that doctrine, the case law that makes the difference is blindly ignored by those who choose to chase windmills.

    Still waiting for Ned-ogram to do his homework here – there be polenty of easy to understand case law on that written matter doctrine defining edge.

  114. 56

    >>in which category does a “financial instrument”

    If a method that makes a financial instrument isn’t per se ineligible, then a financial instrucment isn’t per se ineligible either.

  115. 55

    >>a “financial instrument” falls completely >>outside the statutory classes of subject matter.
    Cy sockie, where is that written?

    Section 101 of Title 35. You tell me, NWPA, in which category does a “financial instrument” belong? While we’re at it, considering In re Nuijten, is the term “financial instrument,” presuming it’s not a process, limited to a tangible thing at all?

    We might as well be claiming “A cheery thought” or “A hopeful prayer”.

    Or how about:

    1. An ambitious plan, comprising:
    first and second objectives, wherein completion of the first and second objectives constitute success of the plan;
    an allocation of financial resources to the first and second objectives, wherein the allocation among the first and second objectives is unequal and wherein the allocation comprises weighted sub-allocations of financial commitments from at least 4, but no more than 8, sponsors; and
    first and second schedules corresponding to the first and second objectives, respectively, wherein each of the first and second schedules comprises a plurality of sub-objectives, and wherein at least one of the sub-objectives on the first schedule is common to at least one sub-objective on the second schedule.

    This claim meets the “transformation” prong of Bilski’s (helpful but not exclusive) test, because it transforms the relationship between the sponsors and their financial assets. Or something like that. And besides, Bilski only applies to processes. And a plan is not a process.

    Now, I wonder if “ambitious” is limiting, in this claim?

  116. 54

    As with Beauregard claims, the proper analysis is to simply ignore the non-structural “limitations” (e.g., the unpatentable abstract relationships and/or written instructions) and evaluate the claimed structure against the prior art structure. Then you fail under 102 or 103. Buh-bye claim.

    Cite it or it aint true.

  117. 53

    … and now; back to the subject of the post …

    Congratulations Dennis for the well-deserved inclusion of your PatentlyO.

    Thanks for all your hard work.

    May you have the desire & energy to continue on for many years to come.

    … now; where did I put that popcorn …

  118. 52

    MM: you are making things up. relationship between a computer and a person? No. You know that is wrong.

    >>a “financial instrument” falls completely >>outside the statutory classes of subject matter.
    Cy sockie, where is that written?

    IANAE’s argument is wrong. causing a computer to execute a method means the particular steps are caused by the computer readable medium. IANAE’s argument is nonsense as usual.

  119. 51

    Frankly, I don’t see where it’s even necessary to invoke Bilski. As with Beauregard claims, the proper analysis is to simply ignore the non-structural “limitations” (e.g., the unpatentable abstract relationships and/or written instructions) and evaluate the claimed structure against the prior art structure. Then you fail under 102 or 103. Buh-bye claim.

    You’re at least half right. It’s not necessary to invoke Bilski because a “financial instrument” falls completely outside the statutory classes of subject matter. As to the rest, I like IANAE’s argument better: Give me any Beauregard claim and a 40-year-old computer-readable-tape, and I’ll write you an interpreter that makes that old tape infringe. That suggests a 112 problem.

  120. 50

    PTO’s current position in a nutshell:

    An “instrument” that determines the relationship between a company and a person without setting forth any limiting structure is abstract and not eligible for patenting under Bilski.

    An “instrument” that determines the relationship between a computer and a person without setting forth any limiting structure is eligible because, well, just because, darn it.

  121. 49

    >>>Ham
    >>NWPA actually studied law as opposed to the >>rust brains and had a minor in dead beat >>flogging.

    Fixed it for, Ham I am. And, nertz to you too.

    Cy: come on. That is the take I’ve heard from many people on Bilski.

    SCOTUS said:
    These claims attempt to patent the use of the abstract idea of hedging risk in the energy market and then instruct the use of well-known random analysis techniques to help establish some of the inputs into the equation.

  122. 48

    NWPA, can you please point out for me where “the SCOTUS said it was the application of an abstract solution to the problem that excluded [Bilski’s claimed method] from 101”?

  123. 47

    Cy Nical — just so it’s clear, the BPAI has denied one “financial instrument” claim where the applicant argued it was a just like a Beauregard claim and granted a patent (see the first claim upthread) to another “financial instrument” claim that is legally indistinguishable from the claim that was denied.

    Frankly, I don’t see where it’s even necessary to invoke Bilski. As with Beauregard claims, the proper analysis is to simply ignore the non-structural “limitations” (e.g., the unpatentable abstract relationships and/or written instructions) and evaluate the claimed structure against the prior art structure. Then you fail under 102 or 103. Buh-bye claim.

  124. 45

    Is the amount of money in your bank account abstract?

    Depends on where you are standing when the bank fails. Perhaps you missed George Bailey’s lecture to the citizens of Bedford Falls.

  125. 44

    If they don’t want inventions that include financial instruments, they should exclude them through legislation and not through invoking the magic word “abstract.”

    Uh, they did. The claim above doesn’t define a process, machine, manufacture, or composition of matter. The logic of Beauregard is that the computer-readable disk is a machine, because it it is a physical device that makes other devices act in sometimes interesting ways. Is someone seriously arguing that a “financial instrument” is a machine?

    Furthermore, it’s not clear that the claimed financial instrument is even as tangible as a (non-transitory) computer-readable medium. When I say “mortgage” do I mean the piece of paper that everyone signs, or do I mean the relationship defined by that piece of paper?

    The examiner was apparently hoodwinked by the argument that (a) Bilski applies only to process claims and a financial instrument isn’t a process, therefore Bilski doesn’t apply to financial instrument claims. Nice.

    It’s truly sad that the PTO can claim to have quality control and yet still let losers like this one through. This was low-hanging fruit.

  126. 43

    >>News flash: Bilski wasn’t about 112.

    News flash: Bilski’s claims had all these supposedly abstract ideas of contracts and money and yet the SCOTUS said it was the application of an abstract solution to the problem that excluded it from 101. So, where is the reasoning applied here supported in law?

  127. 42

    That looks a lot like Someone I have seen before. It may even have been the same person that was hiding in the back of a stretch Limo that asked his Driver to ask me for directions in Pensacola back in 1997. I think I heard a MEOOWWWW. Yup, I’m sure of it.

  128. 40

    “OK, 6, let’s hear it from you: what is the meaning of abstract in patent law?”

    I’ve told you already. I even told you to fav the thread. If you didn’t then that is your fault. I’m not telling you again and again.

    Btw, your personal opinion on how “narrowly” that exception should be applied is nothing but your opinion. In my opinion it should be applied precisely as narrowly or as broadly as is needed to rid our patent system of the subject matter which was excluded. That is to say, it should not be up to us to arbitrarily determine how narrowly or broadly it is applied. It should be applied according to the terms which were used and in the same spirit.

    “Yes, Examiner Mooney, we wouldn’t want innovation in financial markets now would we.”

    To be 100% honest, no, I would not. “Innovation” in those markets is generally just something that allows people to do things that they are otherwise prevented from doing by law by doing it slightly differently. On the rare occasion that innovation in those sectors happens such that a benefit is created for all without fing someone, then sure, innovate away. But don’t expect a patent for your non-Useful Arts triffling “innovations”.

    “I wrote applications for the “banksters” or did”

    Dabbled in all manner of snake oil have you sir?

    Overall NWPA, while we all know that you have problems thinking, and with the basic law, we all have to be impressed that you haven’t been completely shut down. For that at least, you do deserve some respect.

  129. 39

    NWPA I think the questino is can someone practice the invention? Is it enabled? And are the meets and bounds of the claim reasonably clear.

    News flash: Bilski wasn’t about 112.

  130. 38

    In Bilski they didn’t say that his claims were abstract, but rather that it was the application of an abtract idea.

    Which, means that the claim above is not abstract under Bilski at least as argued.

    If you think the claims we are discussing would be validated by the Supremes, you are unsane.

    Moving on, I’d love to know if the banksters have been filing patents on their innovative methods of foreclosing on people. They do seem to be shameless about such things.

    It seems sort of fundamental that when these banksters were bailed out that their patent filing days should have ended more or less permanently. That would have been a welcome restriction on their activities that would have harmed absolutely nobody and it certainly would have helped the PTO and other applicants by removing the crxpola from the system.

  131. 37

    I think the questino is can someone practice the invention? Is it enabled? And are the meets and bounds of the claim reasonably clear.

    Bilski satisfies your test, and yet for some reason his claims are non-statutory for being abstract. Clearly your test is wrong.

    Also, “metes”.

    Isn’t a molecule an abstraction? Yes it is.

    That’s a good one. You should team up with AI, who insists that a molecule is a business method.

  132. 36

    >>as abstract as Bilski’s

    Witch hunter words. I summarized fairly how the word “abstract” was used in Bilski. I think the questino is can someone practice the invention? Is it enabled? And are the meets and bounds of the claim reasonably clear.

    Abstraction. Isn’t a molecule an abstraction? Yes it is.

  133. 35

    Which, means that the claim above is not abstract under Bilski at least as argued.

    You can split hairs all you want, but if the claim is as abstract as Bilski’s claim it’s non-statutory.

  134. 34

    In Bilski they didn’t say that his claims were abstract, but rather that it was the application of an abtract idea.

    Which, means that the claim above is not abstract under Bilski at least as argued.

    Examiner Mooney time to run. I will follow your trail of rust particles to the next blog.

  135. 33

    NWPA “relating to an idea that is intangible or otherwise not physically measurable by fixed, objective criteria”

    Well, that isn’t how the supreme court used it in Bilski.

    Really? How did they use it in Bilski?

  136. 32

    Well, that isn’t how the supreme court used it in Bilski.

    You can’t say that with any degree of confidence, because the Supremes didn’t actually say how they were using it. For all you know, they all agreed with Malcolm. The Bilski claims are the only data point we have to go on, and that data point is perfectly consistent with Malcolm’s definition.

    And since it is supposed to be a narrow judicial exception to 101, your definition is too broad.

    That’s a meaningless assertion. You could say anything is “too broad because it’s supposed to be narrow”, but it’s only really true and meaningful in differential calculus or where “narrow” is well-defined.

    Is the amount of money in your bank account abstract?

    Isn’t it? Currency is abstract to begin with, and a number representing some quantity of that currency that the bank isn’t even required to physically possess is doubly so. A method of making that number bigger is way past the end of the abstract scale.

  137. 31

    NWPA The fact is the claim recites steps that are not abstract

    As IANAE noted, it’s a composition claim. There are no steps (at least none that are limiting).

    It’s more like a contract. It’s funny that the applicant chose to compare the “instrument” to a Beauregard claim rather than to a loan, which is what it most closely resembles. But of course you can’t patent a loan.

    Except when the PTO screws up (e.g., 7,818,225).

    Maybe I should try patenting my ideas as “mental instruments.” Worth a shot, at least, especially if the government is giving me billions of dollars in exchange for pure junk.

  138. 30

    See, MM, the way I remember it ending is you calling me names and then running when the nub of the argument came down to the definition of abstract.

  139. 29

    >>Say, we’ve been through this before, NWPA! And >>now I remember how the conversation ends: you >>end up moving the goalpost and then you call >>people names.

    Oh boy that is you MM.

    “relating to an idea that is intangible or otherwise not physically measurable by fixed, objective criteria”

    Well, that isn’t how the supreme court used it in Bilski. And since it is supposed to be a narrow judicial exception to 101, your definition is too broad. And, are the claims above an “idea”? Is the amount of money in your bank account abstract? Is it an “idea”?

    And, you said I had a hard time being honest, which I would include as name calling.

  140. 28

    A judicial exception that should be very narrowly applied is now being used to wipe out vast swaths of subject matter.

    If it’s narrowly applied but there are a whole lot of patent claims directed to the narrow scope of its application (claims drafted in a popular but inherently abstract format, for example), whose fault is that?

    That’s like arguing that waterboarding isn’t cruel and unusual punishment because we do it so much that it’s usual now.

    The problems with the financial system have been made less severe due to patents.

    It’s true. There hasn’t been a market crash on American soil since 2008.

  141. 27

    NWPA I wrote applications for the “banksters” or did.

    That explains the bias.

    The problems with the financial system have been made less severe due to patents.

    A generic and meaningless claim if I ever saw one.

  142. 26

    >>neither one of us is a bankster

    I wrote applications for the “banksters” or did. I think the patent system did promote innovation and actually likely helped the average person. The problems with the financial system have been made less severe due to patents.

  143. 25

    Abstract, what does that mean Mooney? I mean really. Shake the rust out of that brain of yours and tell us what is the meaning of abstract in patent law?

    Oh, I dunno. How about “relating to an idea that is intangible or otherwise not physically measurable by fixed, objective criteria.”

    Seems like it would take care of the above claims.

    Say, we’ve been through this before, NWPA! And now I remember how the conversation ends: you end up moving the goalpost and then you call people names.

  144. 24

    IANAE, 6, MM (also known as witch burners):

    what is the meaning of this word “abstract” in patent law?

    Rustboys.

  145. 23

    OK, 6, let’s hear it from you: what is the meaning of abstract in patent law? A judicial exception that should be very narrowly applied is now being used to wipe out vast swaths of subject matter.

    Outrageous. The rust brains of the world always seem to join up to try and kill the gifted.

  146. 22

    The new witch burning word “abstract.” What word is not abstract?

    Words printed on paper (or on “financial instruments”) are abstract because paper is made out of wood, and is therefore a witch.

    Therefore, Beauregard claims are statutory because the readable medium doesn’t float. Brilliant.

    The fact is the claim recites steps that are not abstract

    The claim does not recite steps. There are no steps in a product claim. The fact is the claim recites instructions to perform steps, which are abstract no matter what the underlying steps would be. A set of instructions for baking a perfectly statutory cake according to a perfectly statutory method is itself non-statutory, because the set of instructions is neither the cake nor the method.

  147. 21

    Examiner Mooney, we wouldn’t want innovation in financial markets now would we

    No, we don’t, unless of course “we” are banksters trying to stay afloat on top of a sea of worthless junk that “we” created.

    And let’s be honest, NWPA (hard for you, I know): neither one of us is a bankster.

  148. 20

    If they don’t want inventions that include financial instruments, they should exclude them through legislation and not through invoking the magic word “abstract.” Abstract, what does that mean Mooney? I mean really. Shake the rust out of that brain of yours and tell us what is the meaning of abstract in patent law?

  149. 19

    Yes, Examiner Mooney, we wouldn’t want innovation in financial markets now would we.

  150. 18

    “Oh well, at least patent agents are keeping busy in these tough economic times.”

    Snake oil is always in fashion. Always.

  151. 17

    >>It is merely an abstract idea of how to make >>money.

    The new witch burning word “abstract.” What word is not abstract? The fact is the claim recites steps that are not abstract that one of ordinary skill in the art would konw the meets and bounds of the claim and a claim that is enabled.

    Abstract–smabstract. What a joke.

  152. 16

    Think of it: B of A is peddling this crxp to the PTO and sucking up PTO bandwidth that could be going to a company that makes a useful product and at the same time B of A is begging for money from the government to bail it out because of all the crxppy “financial instruments” it previously “invented.”

  153. 15

    The applicant very reasonably tried to argue that these “instruments” were just like the disks Beauregard claims!

    On a purely theoretical level, had the applicant been successful, would that have limited the scope of “instruments” to readable printed media? Would the claim then be to a written document physically sent to somebody who physically holds it (note the two-party infringement), the document itself having a market price and having the provisions printed thereon?

    Because I’m having difficulty understanding how a provision could be written on a financial instrument itself, or how a provision could be structurally related to something that has no structure.

    What they really should have done was amended the claim to recite “a provision that, when read, causes a financial institution/bank/computer/company/composition of matter to repay (etc.)”

    Oh well, at least patent agents are keeping busy in these tough economic times.

  154. 14

    ” it’s that your windmill escapades are as about as exciting as 6’s (thankfully) short stint at IDS reportin. ”

    Dude I totally forgot about that sht when I went on a little vacation.

    Where were we?

    “Ex Parte Birle”

    Yeah that was a pretty good one.

  155. 12

    Let’s take another look at Ex Parte Birle, shall we?

    10. A financial instrument issued by a stock company and held by a holder, shares of stock of the company trading at a price, the instrument having a market price, the instrument comprising:

    a provision obligating the company to repay the principal according to a predetermined term;
    a provision making the instrument convertible into a predetermined number of shares of stock of the company at a predetermined conversion price;

    a provision obligating the company to make a payment to the holder with respect to passage of a time interval in the event the market price of the instrument is in a predetermined relationship to an accreted value thereof, the accreted value defined as the issue price of the instrument plus an economic accrual of a portion of a difference between the issue price and the principal amount at maturity.

    The Examiner rightfull shot this pile of crxp down. How did the applicants respond in its appeal brief? You gotta love this! The applicant very reasonably tried to argue that these “instruments” were just like the disks Beauregard claims!

    By analogy, when functional descriptive material, such as the material set forth in the present rejected claims, is recorded on a “financial instrument” or an “offering document,” it likewise “becomes structurally and functionally interrelated to the medium and will be statutory in most cases.” Use of the financial instruments or offering documents “permits the function of the descriptive material to be realized.”

    Without addressing the “logic” of Beauregard claims or In re Lowry (a wise choice by the PTO, since there isn’t any to be found), the BPAI smashed the applicant’s argument to bits.

    with the exception of the recitation in the preamble of the claims of a “financial instrument” or “offering document,” all the elements of the claims relate to a mental concept or an abstract idea of how to make money. In this regard, the claims relate to an idea related to a financial arrangement between a stock company and a holder of shares of the stock. The claims recite various ways that a holder of shares of stock can make money by, for instance, receiving principal paid according to a predetermined term, receiving a share of stock of a company and receiving money in accordance with an accredited value. In this way, the claims recite a way of converting money paid to a company for value in terms of shares of stock, or accredited value. It is merely an abstract idea of how to make money.

    Baby steps, people.

  156. 10

    You be the one whinin’,

    in the words of your favorite President:

    “Well, there you go again”

    You be whinin. I done told you that if ya want to do more than mere be otch, there are several ways of ya actually makin a difference (not that you really really want to make a difference). Ya can anonymously file re-exams on all these O-so criminallly bad patents. Ya can even use your favorite pen name of Malcolm Mooney. Ya can even join the voluminous flood of those using Peer-to-Patent [crickets]. Sunshine, you yourself have said that this is a mere comment section of a blog.

    And to get to the point of the matter, it aint that I be annoyed that ya pointin out how bad the Office is (ya do read my stuff, doncha?) – it’s that your windmill escapades are as about as exciting as 6’s (thankfully) short stint at IDS reportin. Ya gotta remember – I’m here for the chuckles.

  157. 8

    Examiner Mooney

    See, that’s the problem with name-calling. It’s the Tragedy of the Commons all over again. The conversation goes better for everybody if there’s no name-calling at all, but if names are going to be called you only win if you go first.

    It’s pretty much the same reason the Democrats keep losing elections.

  158. 7

    “Maybe you work there?”

    Ping probably does. His office is right next to your office, Examiner Mooney.

    Lulz

  159. 6

    stop your whinin already.

    You be the one whinin’, pingaling.

    I’m just providing stark evidence of the PTO’s incompetence. Funny how that seems to annoy you to no end. Maybe you work there?

  160. 4

    maybe you can explain why

    or are you

    Or maybe neither – And maybe I just dont care to join you on your windmill hunts Sunshine.

    Just get a life and stop your whinin already.

  161. 3

    Hey pingaling, maybe you can explain why the above claim is valid in view of any other “financial instrument” in the prior art, e.g., a loan with certain terms.

    Or in light of Bilski. And don’t forget to discuss this:

    link to 1201tuesday.com

    Otherwise you sort of come across like a pathetic angry dxpshit who can’t stop obsessing about yours truly. What do you think? Do you love the claim, or are you just an angry dxpshit?

  162. 2

    My favorite blog is still Windmill-Chasers-R-Us, because it lets me be otch and not do anything else in a substantive matter to make things better”

    Fixed for the crybaby.

    Oh lookie, another windmill.

  163. 1

    My favorite blog is still 12:01 Tuesday. Pity that it isn’t updated as often as this blog is, but so it goes. They’ve been on a role lately. I hope everyone saw this:

    7,818,225

    1. A financial instrument of an entity, said financial instrument comprising:

    a conventional investment instrument;

    a penalty feature added to the conventional investment instrument; and

    a dividend feature added to the conventional investment instrument,
    said penalty feature characterized by a penalty assessed against a holder of at least one share of the financial instrument who sells the at least one share on a date of sale that precedes an extinguish date associated with the financial instrument,

    said dividend feature characterized by a dividend adapted to be distributed, on a date subsequent to the date of sale, to all Holders of Record of the financial instrument on the date of sale,

    said dividend being derived from said penalty,

    said financial instrument adapted to be acquired by a plurality of investors.

    Issued: October 19, 2010

    Our PTO is a joke.

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