CLS Bank Int'l v. Alice Corp. (D.D.C. 2011)
In an interesting opinion, DC District Court Judge Rosemary Collyer has ruled Alice Corp's four asserted patents invalid under 35 U.S.C. § 101 for failing to claim patentable subject matter. This case can be seen as flowing from the Supreme Court's recent decision in Bilski v. Kappos, 130 S. Ct. 3218 (2010).
Alice is an Australian company owned largely by the huge National Australian Bank. CLS is a UK company that works with banks to settle foreign exchange accounts – and is involved with about 95% of the global foreign exchange trading. The patents are generally directed at methods and systems for creating and settling debts that uses both credit/debit records and shadow credit/debit records. Claim 1 of Alice's Patent No. 7,149,720 might be seen as an example:
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'720 Patent, Claim 1. A data processing system to enable the exchange of an obligation between parties, the system comprising: a data storage unit having stored therein information about a shadow credit record and shadow debit record for a party, independent from a credit record and a debit record maintained by an exchange institution; and a computer, coupled to said data storage unit, that is configured to (a) receive a transaction; (b) electronically adjust said shadow credit record and/or said shadow debit record in order to effect an exchange obligation arising from said transaction, allowing only those transactions that do not result in a value of said shadow debit record being less than a value of said shadow credit record; and (c) generate an instruction to said exchange institution at the end of a period of time to adjust said credit record and/or said debit record in accordance with the adjustment of said shadow credit record and/or said shadow debit record, wherein said instruction being an irrevocable, time invariant obligation placed on said exchange institution. |
As in Bilski, the district court focused on the question of whether the asserted claims constitute "abstract ideas." In doing so, the court began with an admission that "[t]here is no clear definition of what constitutes an abstract idea." Rather the approach must be by-analogy to Flook, Benson, and Diehr. In the 2010 Federal Circuit case of Research Corp. Techs. v. Microsoft Corp., 627 F.3d 859, 868 (Fed. Cir. 2010), the Federal Circuit offered the additional wisdom that to be disqualifying, the abstractness "should exhibit itself so manifestly as to override the broad statutory categories of eligible subject matter and the statutory context that directs primary attention on the patentability criteria of the rest of the Patent Act."
The court agreed with the patentee that the computer system claim (above) was directed toward a "machine" as enumerated within Section 101. However, the common law exceptions to Section 101 are overriding factors that operate regardless of whether a machine or process can be identified within the claimed subject matter. "Alice's system or product claims [cannot] be saved only by the fact they may nominally recite a 'computer' or 'manufacture.'
In its abstract-idea analysis, the court focused on preemption – holding that the claim "would preempt the use of the abstract concept of employing a neutral intermediary to facilitate simultaneous exchange of obligations in order to minimize risk on any computer which is, as a practical matter, how these processes are likely to be applied." In an apparent effort to bolster its conclusion, the court also suggested that it is likely abstract because it would be infringed by "common and everyday financial transactions."
Notes:
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CLS filed this declaratory judgment action against Alice after Alice had warned CLS (by letter) that "every transaction involving CLS' settlement of foreign exchange transactions is impacted by [our patent] claims" and that CLS was "willfully infringing Alice's intellectual property."
CLS is represented by Kaye Scholer; Alice is represented by Williams & Connolly.
“Much as Dhuey has done with Ping”
Who is Dhuey?
“your posts have not been well-considered, something that shows a total lack of respect for others on this board”
Lol, lol, lol.
Ah, no wait.
Lol, lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol lol, lol, lol, lol, lol.
Like your crrp is “well-considered”? Shot to the Head – you continue to be way way too full of yourself.
Nosebleed much?
No Fei, it is because we dared to be optimistic about something–about the fact that a new face appeared on the board, a fresh face that could be welcomed and hopefully contribute something worthwhile, even if it was only good questions rather than suggested answers.
I could throw out all sorts of adjectives, but the upshot has been that your posts have not been well-considered, something that shows a total lack of respect for others on this board who have given you the benefit of the doubt.
Not-considered posts would be fine if you posted them with qualifiers or caveats, and then accepted responses accordingly–but you haven’t.
In fact, you sound a lot like somebody who used to post here years ago.
Much as Dhuey has done with Ping, I will no longer respond to any of your comments–and yes, we can identify a poster no matter what pseudonym they use.
Good luck “Fei Shen”.
Max, one of the takeaways from the Bilski case should have been that “business methods” are within within the “useful arts”. However, there seems to remain substantial controversy on that point.
It is a wonder that if the real problem with the Bilski claim was that it was directed to a business method, that all nine justices would not have said so. Rather, they seem to have suggested that the problem with the Bilski claim was that it was not claimed in one of the four statutory classes.
Anonymous, may I ask you a simple question?
If a claim has statutory utility, and is claimed in one of the four statutory classes, does the claim claim statutory subject matter?
Ping, just you know, man you cracked me up pretty hard. Thanks for your sanity against the anti-SP gangs. Windmill chasing, LMAO.
Does big D owe you or what? Are you actually on that 25 HOF IP list?
No, you are not Gene, you are Lemley on this board.
OMG, 6, are you pulling the moral suasion trick on me? This is freaking serious accusation.
Hey, this thing is just too time consuming for me. I can’t even educate you. I don’t have the time to educate the world.
See there, I knew we’d get along well.
Btw, can you take over my tutoring obligations around here? It is a largely thankless job, and many of the students don’t want to learn and will probably end up failing when they try to apply what they’ve learned but I’m so tired of the responsibility.
I mean, if you’ll be around, I’ll just point them to you when they have a question about this stuff. So long as you can keep your opinions out of your tutoring responsibilities.
What do you say? Think you’re up to the job?
Are you mad that I try to pick your “test” apart?
I actually think it’s not all that bad. It took you a lot of words, but hey I did learn some. 6 said nobody cared about your test on this board, but I did. I just think you do need some common sense when you craft the “compass”. Not having a compass is better than a compass that points the wrong direction half the time.
Because we wasted time on you.
Ned–
By saying what you did, you were not “concurring” with the holding in Brenner–rather, you were re-stating the holding and logic in Brenner.
Remember this passage:
“Until the process claim has been reduced to production of a product shown to be useful, the metes and bounds of that monopoly are not capable of precise delineation.”
Where is the logic in requiring product utility for method s-m eligibility? Why not focus on the METHOD utility instead?
Apart from having no rational logical basis, the court’s statement suffers from a failure to encourage disclosure.
Another problem with their formulation of “substantiality” is that it requires a value judgment. What if a product is “useless” at the time of claiming of a particular method for its production, yet is found to have tremendous a year later? By denying patent protection based on a current lack of known utility for the product, disclosure is discouraged until such time if and when a use is found for the product, which delay in disclosure does not further the stated policy aims of the patent system.
The ultimate product is inherently defined in the claim, as the inevitable result of the performance of all included method steps, but should be considered only for utility purposes, and not as a limitation. If the method is performed correctly, it will inevitably result, and does not need to be specifically claimed as a limitation. If the performance of the method could result in more than one outcome, the claim could be indefinite under 112, unless the entirety of the disclosure described the utility in terms of all possible outcomes.
The physical things that undergo a change as a result of practice of the method are the physical substances upon which the method operations are performed. The change can be chemical, electronic, crystalline, distributional, whatever, as long as the physical product exhibits physical properties that are different from those of any of the constituents, either alone or in combination.
The utility IS the physical change that results in the particular product being created as a result of the particular method steps performed upon particular constituents. The resulting granted claim may not be worth much when granted if the product has no known use other than its own investigation, but so what? S-M eligibility should not be conditioned upon some threshold of patent value.
Furthermore, the patent could gain in value immensely if a use is subsequently found for the product. Or it could not, as third parties would be free to develop their own non-infringing methods of production, if they choose to do so instead of taking a license.
There is no good logic behind the court’s formulation of their substantiality test for utility, and it should go the way of the 25% rule of thumb. The CAFC’s own statement in Uniloc could used with few changes, to throw out the current test:
“This court now holds as a matter of Federal Circuit [Supreme Court] law that the 25 percent rule of thumb [currently useful product test] is a fundamentally flawed tool for determining a baseline royalty rate in a hypothetical negotiation [the subject-matter eligibility of a method claim]. Evidence relying on the 25 percent rule of thumb [currently useful product test] is thus inadmissible under Daubert and the Federal Rules of Evidence, because it fails to tie a reasonable royalty base [a basic consideration of utility] to the facts of the case at issue.”
After all, one is claiming the METHOD, NOT THE PRODUCT THEREOF.
Argument, please.
The law is whatever you, 6, the almighty think it is!
I don’t know this case and I didn’t understand your explanation except the issue was settled 2v1 in Rader’s favor.
I did meet Rader last Oct. He asked us “who won in Bilski?”, we were all like “You, hands down”. That got a good laugh out of him.
“Disclaimer: I am not saying this is the law.”
K, so now tell us what the law is. And then explain it to broje if you don’t mind.
Why are these guys so mad?
IBP, so not only am I not an attorney, am I not even old enough to hang around here … Hmmm.
Well, I think you need some common sense and an IQ doctor for a fix. You are welcome.
Insults and insults … I did go to ABA credited law school, a pretty good top 20 school for that matter if the U.S. news ranking was worth its salt. Oh, well, what do I know. I must not know the drafting techniques, patent terms, the case law you real legalists have mastered … except you still can’t tell me what an abstract idea is? Bwwwahh
“but the fact that you responded to it the way you did speaks volumes.”
And your responses speak volumes too – cepts you too full of yourself to see that.
But thanks for the chuckles!
“The Feds owe all of use the duty to emphasize that if a claim fails the MOT test, it is presumptively not patentable matter.”
Cite please.
“But, until they do, MOT is “the” test.”
Um, No – in fact that was one of two things all nine Supreme Court Justices agreed on.
Ah the chuckles on how you misunderstand law so badly.
And yet you dare take umbrage at others when they have a utter lack of reasoning – you and Shot inthe head suffer teh same terminal disease with that.
“It’s not fun watching you get roasted, without your even knowing it.”
But it is fun watching you get roasted, Shot in the head – Specially when ya think way way too highly of yourself.
Chuckles enough for everyone – even the new kids on the block.
“No self-respecting attorney would dare try to silence another attorney with the kind of moral suasion you have attempted.”
I take then, Shot in the head, that you too are not a self-respecting attorney – for your “suasion” was far more crass than the newbie Fei’s.
But thanks for posting an insult of yourself – chuckles for everyone.
Thanks for the CAPs. You guys are funny bunch.
This is my point
A software program that only does mathematical calculations, like Benson’s program, is not patentable s-m, although IMHO Benson’s claim probably did more and Benson’s opinion is very wrong, which started the mess we are in now, but oh well I don’t want to give IBP another aneurysm, who knows what else he is going to accuse me of.
A software program that does mathematical calculations to generate some useful information [b]should be[/b] patent s-m, like the optimizer.
Disclaimer: I am not saying this is the law.
Never mind “my” version of the test, you don’t understand even the very basics of U.S. patent law.
What did I say wrong? The preemption part? The U.S. Patent law is not about preempting the idea embodied in a patented invention?
And the moral suasion? what’s that about? Please elucidate?
You are hard to please.
“suasion”
LOL WUT? That’s like half of what lawlyering is about for the good ones. Only the terrible ones would shy away from their greatest tool.
“but also because it’s preemption of of an ABSTRACT IDEA”
Yep. Kind of like your claims that want to preempt an abstract idea in the form of an algorithm.
“The Benson Court deemed BCD conversion abstract b/c it is pure mathematical formula. ”
Yep, man you catch on so much faster than Broje, you should tutor her so I can stop.
“Unlike you, I think IBP’s formulation is intriguing because it does shed some light on real world object. ”
Sure it is “intriguing” but not worth a penny legally.
“The Benson claim is essentially a mathematical formula in abstract w/o referring to real world object. In that light, BCD conversion can be characterized as abstract w/o substantial use unless we say computer memory bits are real world object. ”
That’s true, under IBP’s made up analysis that is likely how things turn out. Not that it matters…
“Therefore it is a practical application of abstract idea (math) to solve a problem, and not abstract.”
So then when you apply an abstract idea TO SOLVE A PROBLEM, BUT DO NOT CLAIM THIS SOLVING OF A PROBLEM IN THE CLAIM then the abstract idea is somehow not abstract anymore? Mhmmmm. Right. Makes total sense! Keep on believin’. Give me that ol time religion, preacher, give me that ol time religion, because miracles be happenin’ up in here!
So then, in your opinion, all Benson had to do was solve a problem, presumably irl somehow, using his algorithm, and then commence to claiming THE EXACT SAME CLAIM AS HE TRIED TO GET? OR is it your opinion he would need to amend the claim so that it is limited ONLY to those practical applications and DOES NOT in practical effect preempt the abstract idea?
If you picked the later then you win sir, your legal understanding is complete on this topic.
If you picked the former, then no, sir. The whole point of the decision was that Benson COULD HAVE come up with some practical applications of his formula and then limited his claims down to those SO LONG AS those claims did not do the same thing as the claim he tried to get, and preempt the entire abstract idea in PRACTICAL EFFECT.
I’m giving you caps so you will hopefully drive your understanding of the situation the rest of the way home and then can commence to teaching the unwashed masses around here. Don’t disappoint me.
It is a procedure, a bunch of steps, aka a method. We are all aware that all methods are abstract by nature and definition.
If you don’t believe me, then consult your chief judge rader who fought lesser judge Newman on this very issue in a recent case. In that case the question was whether or not you could “import” a method into the US. Rader said no silly methods are abstractions that one cannot physically “import”. Newman was like omfg you can so import a method! And Newman advanced for this proposal iirc, the importation of a sheet of paper with the instructions written thereon. She never offered to start an importation service for methods though, similar to the entire IMPORT INDUSTRY that exists for products etc. In any event, the other judge agreed with Rader and the issue was settled by them 2 v 1.
BTW MM do you recall that decision’s name? I totally forgot to bookmark it, it was so funny.
“Why should “sufficient structure” in a claim matters when the core innovation lies in the software?”
Because that is the way we distinguish apparatuses and products, the exception being product by process claims. Consult your legal handbook on claim drafting for beginners. Or Landis if you prefer. Or the lawl, Ex Parte Lyell iirc is a good one. You’ll also find a few Fed. Circ. cases referring back to it.
“Is this all about drafting?”
Listen to you, catching on so quickly. Other software lawltards take years to achieve this simple understanding. Such wretches populate this very board, see pingerdoodle, broje on occasion, and NWPA. All of them profess to be actual lawltards if you can believe it.
“If the distinction is about abstract idea and practical application of an abstract idea, what is an abstract idea? You or the court can’t tell me it’s unaswerable.”
There are plenty of definitions, most just as good as the others. But if you want to get legal about it consult legal opinions in your country.
“but rather try to point out the law is flawed.”
Well we all know that silly. Currently there are no statutory provisions specifying that software and it’s authorship, are creative works only. Defined thus, and covered by copyright. Likewise, congress has as of yet not mustered the balls to kill business methods. But give them a bit of time, they’re kind of slow.
“but I wouldn’t mind a judicial decision that says they are not useful arts because the political process can then decide.”
That would have been nice in Bilski. But alas we find ourselves here.
Fei–
It’s not fun watching you get roasted, without your even knowing it.
Go find some kids your own age to play with!
Are you pulling this out of your rear, 6!
Algorithm as defined by webster:
: a procedure for solving a mathematical problem (as of finding the greatest common divisor) in a finite number of steps that frequently involves repetition of an operation;
broadly : a step-by-step procedure for solving a problem or accomplishing some end especially by a computer
Do you notice the broad meaning of algorithm? That’s the meaning I am referring to.
Fei–
You are clearly not a U.S. Patent Attorney.
Never mind “my” version of the test, you don’t understand even the very basics of U.S. patent law.
Furthermore, I highly doubt that you’re a U.S. attorney at all.
No self-respecting attorney would dare try to silence another attorney with the kind of moral suasion you have attempted.
Go learn some law and get back to us.
Also Benson’s claim got tossed away not only because the preemption, like I said patent law is about preemption anyways, but also because it’s preemption of of an ABSTRACT IDEA. The Benson Court deemed BCD conversion abstract b/c it is pure mathematical formula. Unlike you, I think IBP’s formulation is intriguing because it does shed some light on real world object. The Benson claim is essentially a mathematical formula in abstract w/o referring to real world object. In that light, BCD conversion can be characterized as abstract w/o substantial use unless we say computer memory bits are real world object.
OTOH, the optimizer doesn’t engage in just pure “useless” mathematical operations, but rather applies mathematical algorithms to generate optimized search plans that minimizes search time. Therefore it is a practical application of abstract idea (math) to solve a problem, and not abstract.
They are not “equivalent to” abstract ideas. They are defined as being a species of such. According to the english language, and according to the nature of the world around us, not just the courts. The courts merely observed the english language and the world around us and determined that such is a proper designation.
It was patently a joke, Ping.
Oops, there’s another!
Of course it wasn’t meant for you, but the fact that you responded to it the way you did speaks volumes.
Fei honey, you need to provide me with a CLAIM.
Take a smoke detector, for instance.
What is it ABOUT the “smoke detector” for which you are applying for monopolistic patent rights?
The s-m eligibility of something depends entirely on how it is CLAIMED.
I don’t think that there is ANYTHING that should be “categorially” excluded from s-m eligibility–each claim should be analyzed on its own merits, after the scope and meaning of the claim are determined with acceptable precision.
Let’s focus on “a smoke detector”.
With just that, all we know is that there exists some physical device or apparatus that is configured to undergo a change that is induced by some property of something known as smoke that is observable to the device or apparatus.
There is no utility stated, and without more, no particular utility can be logically presumed.
This is where the problem lies. Nobody is willing to step up and draft a claim that they think has a good shot of passing.
Why is that? Because a good claim is very difficult to draft, and takes time. You really have to think about WHAT it is that you are claiming, and about HOW you can secure the maximum breadth of protection economically.
I’m surprised that nobody has come forth with an actual patent claim that has undergone a 101 analysis of which they have a particular opinion, in favor of, or against.
“a smoke detector”
112 fail.
Yeah, these are just algorithms, which somehow are equivalent to abstract ideas b/c the court says so. “The wheel on the bus round and round” lol.
MM,
Why should “sufficient structure” in a claim matters when the core innovation lies in the software? Is this all about drafting? If the distinction is about abstract idea and practical application of an abstract idea, what is an abstract idea? You or the court can’t tell me it’s unaswerable.
I am asking this not because I don’t understand what the law is( although I am not so sure that the court will say the optimizer(the software) is unpatentable s-m), but rather try to point out the law is flawed. That’s all.
Now, if I were to decide, I would say both 1 and 2 are patentable subject matter, but I wouldn’t mind a judicial decision that says they are not useful arts because the political process can then decide.
I didn’t say pet project. I said a pet name for a computer running your “optimizer” software.
Nevertheless, now that you’ve told me that it will be insulting, I will insult your PhD buddies for the he ll of it. So… pet project.
And sure, claims to THE COMPUTER on which the optimizer software might at some point (even concurrently) be run are patentable, just as patenting a toaster is patentable subject matter. But the optimizer software, or a computer “running” optimizer software, or “configured to run” optimizer software, or a disk holding optimizer software are probably not. They’re all just meant to have the practical effect of preempting the software per se, not to even mention, if we want to do an abstract idea analysis they’re meant to preempt the “optimizer algorithm”. That is the blatant goal in obtaining those claims is it not? That is the whole reason you want the claims at all. And that is precisely why Benson’s claim got tossed in the gar bage by our highest court.
What’s the difference between a GPS and an “optimizer machine”, if you will, in 101 terms?
As IBP has been pointing out to you, Fei, it’s an unanswerable question in the abstract. Certainly one claim a GPS machine or an optimizer in such a way that 101 would not be implicated, i.e., sufficiently structurally that it can be distinguished from the prior art on the basis of said recited structure, i.e., the way that all compositions of matter must be claimed in order to be enforced as such (i.e., as compositions of matter, and not methods).
You might also ask yourself this question: what is the difference between these two claims:
1. A method of determining one’s exact location, comprising collecting one or more new bits of information about one’s surroundings, comparing said one or more new bits of information with previously collected bits of information corresponding to one or more exact locations, wherein a threshold of matches between said one or more new bits and said previously collected bits is indicative of one’s exact location.
VERSUS
2. A computerized method of determining one’s exact location, comprising collecting one or more new bits of information about one’s surroundings, comparing said one or more new bits of information with previously collected bits of information corresponding to one or more exact locations, wherein a threshold of matches between said one or more new bits and said previously collected bits is indicative of one’s exact location, wherein said collecting and comparing steps are carried out by a computer.
What is the difference between these two claims for 101 purposes? 101 says nothing about a purely mental method being unpatentable. A “mathematical algorithm” is “implicit” in both methods, according to your own logic.
And yet, there isn’t a justice, judge or PTO examiner in the country who would find claim 1 eligible for patenting under 101. Yet you might be able to find one lazy confused examiner or judge to let claim 2 go. Why? What is the difference? Surely the structural differences between a brain capable of carrying out claim 1 and a brain capable of carrying out claim 2 are no less “real” than the differences between two equally distinct computers.
So it is not patentable, IYO. Well, you just killed most software innovations.
Is a GPS like the one in your car a structure? At core, it is a computer that receives instructions, applies some math, and generates voice routing commands? What’s the difference between a GPS and an “optimizer machine”, if you will, in 101 terms?
🙂 …
Yes, I was a programmer and it was not that fun as a job for me. I did a lot of network, C, and Unix stuff. A lot of repetitive and tedious work.
What about GPS, smoke detector, network switch, device monitoring seismic activities? They are just few examples that receives input, processes circuitry logic based on the input, and generates useful information as output. You don’t think they are substantial useful if claimed standing on their own?
before law school and the patent fun, I had been a software engineer for almost a decade.
You mean a programmer?
I was a programmer, too, for about five years back in middle school and high school. It was fun.
An optimizer is essentially a software program
Okay, so no structure. Thanks.
So the “critical component” of this thing you are describing is a set of instructions, where the instructions are defined vaguely by the result achieved when you follow the instructions.
Sounds abstract to me. Also sounds abstract to most non-wankers.
Ping … responding to your earlier post …
I don’t get upset when you and MM pointed out I misunderstood the case. This forum is not the court where my client’s interest is on the line. I come here to discuss and learn. I do enjoy intellectual stimulation in trying to understanding other’s points. If next time you could point out where I got it wrong, I would really appreciate. I may be slow at times, so please bear with me if your point doesn’t register with me right away.
Yeah, before law school and the patent fun, I had been a software engineer for almost a decade.
Forget IBP’s test, Do you think an optimizer is patentable, and why?
To say an optimizer is a pet project is an insult to the PHDs working on it in my old software company. Or you may say PHD, as the title suggests, engages in philosophic abstract thinking only.
Good point Anon. The PTO person has other tasks of higher priority. If I remember rightly, leading the world was down at about number 6 on the task list that went with the job. About right, I should think.
Meanwhile, back in Europe, the Supreme Courts of at least Germany and the UK get their marching drumbeat on substantive patent law from the EBA in DG3 at the EPO in Munich. Tail wagging the dog, perhaps?
But surprisingly, it works rather well, as the Japanese for one have recently noticed.
MaxDrei,
You are welcome. I believe that, as Ned Heller alludes to, we are in the realm of unknown unknowns as the Bilski decision was a bit sparse as to providing test details.
I am not aware of any appoitnment to the USPTO whose job it would be to lead on matters of substantive patent law. I see any such appointment or leadership fraught with peril, though, as the Office explicitly does not have authority to decide matters of substantive patent law.
Thanks for that Anon. Obviously, as you say. Pity.
So, to summarise, what we do know for sure is that MoT (whatever else it might be) is NOT the test of patent-eligibility.
I wonder then, in patent-eligibility, are we in the realm of known unknowns, or unknown unknowns?
Remind me. Was there not recently a new appointment to the USPTO, with the job responsibility of leading the world, on matters of substantive patent law. Can that person help us here? I want to know if my technology, my useful image enhancement algorithm, is “abstract” 1) as such or 2) when it is expressed in code carried on a disc.
MaxDrei,
Your question was mooted by Bilski which held that the concern of the invention being either “machine” or “transformation” was merely an important clue and not the test of patent eligibility.
In this case, the District Judge obviously misapplied the Supreme Court decision.
Coming from the EPO jurisprudence, where the patent-eligibility of a computer program on a carrier is beyond dispute, I’m curious. Suppose you invent an algorithm to enhance (or otherwise manipulate) data that define aesthetically pleasing pictorial images displayed on screen. In what manifestations is that algorithm patent-eligible? How about on a conventional CD or DVD, to be read by a computer? In your country, for example, what (if any) is the “machine” and what (if any) is the “transformation”?
IBP – ya simply fail – no USC section required – in at lleast that ya dont recognize that comments on a mere blog dont need ta meet 35 USC Anything.
Your jealousy be showin.
“but you still have not provided a claim”
Well no duh – once again check your reading comprehension there Sunshine.
The only “kick and scream and wave your arms about” be you and your desire to have a specific claim. Cmon dude – fix the holes in your logic before ya get to any claim analysis.
Deal (with some attempt at actually being effective).
Ping’s comment fails under 112.
Again.
I am dealing with it, Ping.
You can kick and scream and wave your arms about all you want, but you still have not provided a claim that admits of any analysis other than easy disposal under 112.
What could be better than me quoting me – quoting me:
“n fact – let me quote the ever impressive and wonderful me (why not – the best legal brief writers are doing it)”
The Eskimo faving my observations:
link to ipwatchdog.com
Well, OK, that’s not technically “better” – it be more like the garnish on the plate that makes the presentation O so yummy.
loud beeps make me very very angry
Let me get this straight, fel says in reply to IBP telling us all about this new fangled utility analysis which he’s worked out on his very own:
“A data processing system comprising:
1) A storage
2) A computer is configured to
a) recieve input data query from a client
b) apply a set of complex data query analysis based on the input
c) generate instructions based on the result of b) to execute data query in the most optimal way and sends the instructions back to the client
Tell me what the real world object and where the transformation is? This is a critical component called optimizer in a database system. ”
Basically inquring as to how his sample claim fares under IBP’s made up analysis which nobody cares about. To that end, he wonders what the “real world object” and the “transformation” is in this claim he made up to describe some “optimizer” software program executing on (we presume) a generic computer. Fel notes that this “optimizer”, which is his pet name for a computer running “optimizer” software, is CRUCIAL in some database system somewhere on the face of our real world.
So Malcolm asks fel which STRUCTURE he is talking about, and fel responds by telling him all about the PROGRAM?
Jes us god. MM, the STRUCTURE is the computer upon which he is executing the optimizer software, where the computer apparently is part of a bigger “database”, which we presume is either a network of computers to which the “optimizer” computer is attached, or one big machine holding the “optimer computer”.
The answer to your question Fel, is that there probably is no “real world object” and there likely is no “transformation” at least in so far as anyone here is interested in. Although one cannot be sure, because IBP’s “analysis” that he made up is just that, made up. But, that isn’t to say that there might not be a transformation in there that might matter for, say, the MoT test if one were so inclined to bother with it.
“Sounds a lot like non-obvious mental steps, huh?”
Indeed, your claim does.
“You didn’t ask me whether Courts would expect it to be patentable. ”
What one expects a court to believe the law to be is pretty much always implicit in questions at hand on this blog. Your personal opinions matter very little.
“I find discussions with you very unproductive.”
Because you refuse to accept the hand holding through the proper analysis which we have so kindly offered.
But do come again Fel, even though you’re new, and getting yourself into a conversation that started well before you got here, you at least show promise in that your misunderstanding of caselaw is not intentional. Or at least, that’s the way it seems. Perhaps you are a software lawlyer?
“Well, how about this one then
A system comprising
1) a circuitry is configured to
a) Receieve geo-coordinates representing destination, and current location
b) Generate routing information onto the screen”
112 2nd paragraph lack of antecedant basis for “the screen”.
More over, the preemption BS is just, well, just BS. Patent law is all about preemption anyways. It’s preemption of ABSTRACT IDEAS that is outlawed. Without proving what’s preempted are ABSTRACT IDEAS the preemption logic just doesn’t fly not matter how buzzy it may sound.
Ned: Now we are presented with the present case where the business utility claim is tied to a physical machine. The claim is framed as a machine, within the statutory classes. It has a specific utility — albeit, a business utility. Yet the claim is declared “abstract.”
Spot on!
Are you going to listen? I have been wasting too much time going in circles with you guys …
One more time
A data query is in the form of Boolean logic like select (（a and b) or c) and d but not (e and f) … known as SQL. There are many ways to do searches based on this logic.
An optimizer is essentially a software program that can break this boolean logic down, applies some really really fancy math, set theory, moon dance, and what not in reference with past query histories, and then generates an optimal search strategy/intsrcutrctions that minimize search time or other preset criteria. This piece of program could reside on the computer system where the database resides or reside on a stand alone system in the network somewhere.
link to en.wikipedia.org
Sounds a lot like non-obvious mental steps, huh?
Well if we don’t, or didn’t, then we’d off ourselves in this stressful nonsensical world you grown ups would bequeath to us. Well, I guess to be more exact, “country” instead of “world”.
And in fact, those of us that don’t feel rather good about ourselves are put in mental institutions or kill themselves.
Well, how about this one then
A system comprising
1) a circuitry is configured to
a) Receieve geo-coordinates representing destination, and current location
b) Generate routing information onto the screen
I.e. a GPS.
Another one …
A machine that assists anger management by detecting one’s speech speed and volume and generates a loud beep if a preset threshold is crossed.
“And that type of practical effect is verboten in our patent laws”
Is that before or after “claims must be taken as a whole”?
I just gotta bookmark me that verboten patent law thingiee
mmm – some most excellent fluffiness. Cepts ya gonna have a problem with that there “most optimal way” line.
“What is the “‘claim as a whole’ show” that you wish for me to provide?”
I done show you Sunshine. Now I done show you fifteen times.
Better up your meds boy.
Sunshine,
Yet more nonsense from you: “is what is *right* about the claim.
But is fun to watch pingaling do his best flxff it up.”
Cepts – tell me when Iza actually even said anything about the claim? Ya cant cause I havnt.
In fact – let me quote the ever impressive and wonderful me (why not – the best legal brief writers are doing it):
“ping said…
“Love this decision.”
‘Natch.
Coming to a backyard near you soon (a la TINLA).
Keep the chuckles goin (while ya can).
btw Sunshine – I don’t give answers to specific claims – no matter how muych ya keep sayin I keep those things “fluffy”.
Reply Mar 18, 2011 at 01:48 PM ”
Nows I recognize that ya have problems rememberin things ya say when they just be thirteen minutes apart and this was almost a week ago, but try to keep up Sunshine. And by the by – changin “fluff” to “flxff” is pretty amatuerish. In fact, it be downright fluffy.
AI And who do you think America itself, goes too when it wants more money for it’s poor people? Other poor people? No, it goes to the wealthy for more taxes.
What planet are you from? Not Earth, obviously.
The “practical effect” language is key. It’s the reason that old “transformative” steps can’t be used to turn an unpatentable (but new and non-obvious) mental step or series of mental steps into a patent-eligible claim: the practical effect of such claims is to preclude people who are merely practicing transformative steps in the prior art from thinking “new” thoughts while doing so (at least, it precludes them as long they do not wish to be patent infringers).
And that type of practical effect is verboten in our patent laws.
Ask anybody. Anybody except a patent txxbxgger, that is.
And if so, I feel rather good about that.
That’s what great about all these kids who grew up in the self-esteem age. No matter what, they feel rather good about themselves.
Logic “games” are the only thing I have trouble with. In other words, applying that which I have a great understanding of to particular factual situations. And I admit, I’m rather bad at that irl. Conceptually I understand abstract concepts much better than your average lawltard, but I can’t apply it QUICKLY to facts to save my life. And really it isn’t that I’m not good at it, it is just that I’m not quick at it. I have to put effort into it and it takes awhile, and sometimes a sheet of paper. They want you to be able to do that in your head quick as can be. I’m getting faster I think actually, but meh.
Wow. Just wow.
“No wonder you can’t pass the logical reasoning section on the LSAT.”
As you well know I dominate the logical reasonings tardface. Logic “games” are the only thing I have trouble with. In other words, applying that which I have a great understanding of to particular factual situations. And I admit, I’m rather bad at that irl. Conceptually I understand abstract concepts much better than your average lawltard, but I can’t apply it QUICKLY to facts to save my life. And really it isn’t that I’m not good at it, it is just that I’m not quick at it. I have to put effort into it and it takes awhile, and sometimes a sheet of paper. They want you to be able to do that in your head quick as can be. I’m getting faster I think actually, but meh.
“Go read your comment several times until you see how ridiculous your position is.”
It is about as “ridiculous” as the lawl is broje. Sorry you don’t like it.
Until you’ve read Benson at least another 4 times we’re done here.
“The algorithm steps were register shifts.”
No, the “algorithm steps” were “shifting” abstractly, aka on paper, in your head, or anywhere, possibly a register. For god’s sake just read the decision! His implementation was in shift registers. That happened to be the ONLY way to implement the abstract idea of shifting at the time which the court could conceive of (and I’m sure someone would have filled them in if there was another they could imagine back then). The court then said, “Hey! You’re trying to patent the abstract idea by getting all the practical applications of it! OMFG YOU CAN’T DO THAT!” I might have paraphrased that last part.
In any case, like I said, until you read the decision we’re done here.
“The idea was an algorithm made up of register shifts,”
Algorithms are not made up of physical objects. Much less shift registers. O M G. How can you have been a lawltard this long and not know this? Algorithms are methods which are themselves abstract, or abstractions of those same methods which are themselves abstract.
link to en.wikipedia.org
And if you don’t believe me that every single method in the world is abstract then you can consult your Chief Judge who fought, and won, this very battle against Newman in that import case.
Here, I’m just going to go and help you out.
“The method sought to be patented varies the ordinary arithmetic steps a human would use by changing the order of the steps, changing the symbolism for writing the multiplier used in some steps, and by taking subtotals after each successive operation. The mathematical procedures can be carried out in existing computers long in use, no new machinery being necessary. And, as noted, they can also be performed without a computer.”
^that was benson’s new abstract algorithm or as the court calls it “arithmetic steps” aka an algorithm. Taking the old method of BCD conversion, swapping the order of the steps, changing symbolisms, and taking subtotals after each successive operation. Notably the court neglects to recite for you the old algorithm that had come before benson switched it up a bit, but I’m sure you can look it up if you’re curious.
“Here the “process” claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion.”
^his claim covered both known and unknown uses of BENSON’S BDC to pure binary conversion. Read in context. “the bcd to pure binary conversion” is antecedent basis reference back to the previously mentioned bcd to pure binary conversion recited already.
And the holding:
“It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. ”
Note the “PRACTICAL EFFECT” part.
The PRACTICAL EFFECT of the claim in the instant case APPEARS to be that it likewise would be a claim to an idea underlying the operation of the recited machines. If you feel otherwise, that is, if you feel this would not be the PRACTICAL EFFECT then simply state why.
Either way, that’s quite enough out of your insolent mouth for today and I’m done speaking to you on the issue. You know good and well benson’s invention had a new algorithm underlying it and that his claim was fully intended to cover every single thing which a claim to the algorithm itself would have covered. That was the whole point of Benson’s decision, ferreting out that nonsense and then smacking it down.
Now now NWPA, claims are not property. Patents are property.
FS This is a critical component called optimizer in a database system.
When you say “this” “component”, Fei Shei, what structure are you referring to?
A data processing system comprising:
1) A storage
2) A computer is configured to
a) recieve input data query from a client
b) apply a set of complex data query analysis based on the input
c) generate instructions based on the result of b) to execute data query in the most optimal way and sends the instructions back to the client
Tell me what the real world object and where the transformation is? This is a critical component called optimizer in a database system.
A better question, Ned, is what is *right* about the claim.
But is fun to watch pingaling do his best flxff it up. None of us can wait until this wonderful claim is found to be eligible subject matter! It’s so important that it be so, for everyone that really matters. The American economy can’t abide such a tragedy.
allowing only those transactions that do not result in a value of X being less than a value of X
LOLOLOLOLOLOL. Pure gxrbage, top to bottom.
ping Don’t tempt me to invite all the Diehrists from under the rocks to come and ki_ck your ass.
Fixed.
And please bring it on. I need the laughs.
The best available logic, ping, says that you don’t understand what you wrote. You said (and this is a direct quote:
I’ll take a look at what you want ta show – as long as you first provide the “claim as a whole” show.
The last part of that comment is incomprehensible. What is the “‘claim as a whole’ show” that you wish for me to provide?
“furnish me with sample claims”
You taking reading comprehension lessons from 6 now Shot in the Head?
Re-read my posts – you dont need sample claims. You have the holes to fix before you go about applying any of your crackpot analysis.
Why would I waste time giving you something you cant handle?
The ball is most definitely in your court – you just need to realize which sport it is – sportO
And dont go all sobbing how your feelings are hurt.
“LOL. Nice try.”
LOL – It was better than that. Don’t tempt me to invite all the Diehrists outa the woods to come and ki_ck your ass.
“what is wrong with this claim?”
Wrong question. Right question: What is wrong with this Judge?
You are so close Ned – the Judge has not correctly applied Bilski. Thus – legal error. Thus – the basis for overturn/remand.
It really is that simple.
Just an observation.