CBT v. Return Path and Cisco (Fed. Cir. 2011)
CBT’s Patent No 6,587,550 covers a system of charging an “advertising fee in return for allowing” e-mail from an authorized sender to pass through an ISP. Return Path’s Bonded Sender program (developed by Cisco) is very similar, except that the program has no advertising fee but rather charges an annual license fee.
On summary judgment, the N.D. Georgia District Court held the asserted claim 13 invalid as indefinite based upon what the court characterized as a “drafting error” made during prosecution. The claim reads as follows:
13. An apparatus for determining whether a sending party sending an electronic mail communication directed to an intended receiving party is an authorized sending party, the apparatus comprising:
a computer in communication with a network, the computer being programmed to detect analyze the electronic mail communication sent by the sending party to determine whether or not the sending party is an authorized sending party or an unauthorized sending party, and
wherein authorized sending parties are parties for whom an agreement to pay an advertising fee in return for allowing an electronic mail communication sent by the sending party to be forwarded over the network to an electronic mail address associated with the intended receiving party has been made.
The claim indicates that the computer is programmed to “detect analyze the electronic mail” and the district court could not determine the meaning of “detect analyze” and therefore held the claim indefinite under 35 U.S.C. § 112.
On appeal, the Federal Circuit has reversed — holding that there is an obvious and correctable drafting error in the claim and that the district court has the power and obligation to correct that error in the claim construction process.
Correcting Drafting Errors in Court: The common law allows district courts to correct obvious errors in patent claims. However, that correction can only apply where “the correction is not subject to reasonable debate based on consideration of the claim language and the specification and (2) the prosecution history does not suggest a different interpretation of the claims.” Novo Industries L.P. v. Micro Molds Corp., 350 F.3d 1348, 1354 (Fed. Cir. 2003). Here, the court goes on to hold that this correction process must be done as part of the claim construction and must take into account how the correction impacts the scope of the claim.
As a claim construction issue, the Federal Circuit reviewed the District Court’s analysis de novo and held that the error was not problematic. In particular, because “detect” and “analyze” are such synonyms in this context that the particular correction made did not make much of a difference, but that the best correction is to add an “and” between the two limiting words.
Certificates of Correction: The patentee could have corrected this by filing a request for a certificate of correction with the USPTO. The chart below shows the number of certificates of correction issued by the USPTO each year since 1995. I include an estimate for the rest of 2011.
Are you serious?
You show why it was quoted (law of nature) and then supply an additional reason and expect that that too was why?
Step 2: Do not overread what you can impute from a case cite in a decision to fish out something else you want to inject.
“i.e. described with sufficient specificity to satisfy the enablement requirement.”
How about described with sufficient specificity to satisfy the WD req?
Indeed, those who claim genus’s in the bio arena are beset on all sides by the WD req. Why do we give them a genus of structures of indeterminate girth whilst telling the bio people “show us some examples tardarse”?
Why are we being told by the USPTO director to clampen down on people doing the same in other arts in our federal register?
I’ll tell you why, because functional claiming has gotten out of hand. And it did so because of the courts giving people the wrong impression that by using functional language you were thus exempt from making sure everyone knows what structure(s) you’re talking about and/or invented. They forgot to mention that everyone better dam well know what structure you’re talking about.
Overreader, Eibel Process was cited in Flook as an example of a patentable use of a law of nature in a new machine, that was new over the prior art because the webb was raised to a significant degree over the prior art so that the webb produced a result different in kind rather than degree.
This of course is a matter of obviousness, which does describe what is necessary for "printed matter" to provide a patentable distinction over the prior art. It must be functionally related to the underlying article in a new way, different in kind. Eibel Process.
“only in insignificant details”
Your own words…
The “what is written” is hardly an insignificant detail, as it is precisly this that changes the machine input component and it is precisely this defines why the machine input component is different.
That’s another touchdown.
Try playing some Defense (and that would include actually addressing the exception to the printed matter doctrine).
As for Eibel, I am not sure how you want to draw a printed matter exception case to a physical machinery case, but I do like this quote:
“General descriptive terms in a patent are not objectionable where it would have been difficult to make them more specific and where the description is sufficient to enable those skilled in the art to apply the invention”
IBP, “Your statement that “When considering the patentablity of a programmed computer, one can almost ignore the computer entirely and simply ask whether the claimed “process” achieves a new, physical result.” is off the mark.
First, the unprogrammed computer must be sufficiently well-described to satisfy 112.
Second, it is not the “physical result” of any “process” that imparts patentability to an article, it is the STRUCTURE.”
IBP, In re Bernhart is not good law. It held the programmed computer was a patentable machine. That case was decided pre-Benson.
Since then, we have the recent en banc cases of Alappat and State Street Bank that considered the patentability of programmed computers. Both cases required that the program computer produce a “useful, concrete and tangible result.” What is clear from both cases is that the structure of the computer is (largely) irrelevant.
Even though both these cases are no longer good law after the Bilski case, see e.g., footnote 19 of the Federal Circuit case, they are still good for the proposition that a programmed computer does not constitute patentable subject matter unless the computer produces a patentable result, e.g., a result within the MOT or some other test that the Federal Circuit has yet to devise where a programmed computer failing the MOT would still be patentable.
This is why I said that when considering programmed computers, where there is nothing special about the computer, that one can treat the claimed subject matter as a process, because that is how the courts treat the claims.
Sorry, I meant 102 (lack of novelty), not 112.
Mooney:
“the apparati are structurally indistinguishable (at least based on the disclosure and claims)”
Exactly. Rejected under 112, without further consideration.
Leopold channelling IANAE:
“the functionality of the medium is defined by the processor, which isn’t defined in the claim”
Precisely correct, which is why any claim so drafted should be rejected for failure to satisfy the 101 “specific utility” requirement.
Like I’ve said before, it’s all about precisely how the claim is drafted.
Ned–
Let’s limit initial discussion to S-M eligibility under 101.
Any outcome of this type of discussion depends entirely upon precisely how the claim in question is drafted.
Let’s get some things straight here:
First, an article claim is all about structure.
Second, that structure must be described in a manner sufficient to satisfy the requirements of 112.
Third, description of structure can be either direct, or indirect (by necessary implication) as in, for instance, MPF limitations.
If a claim recites structural limitations, and if the description of those structural limitations satisfies 112, the “machine, manufacture, or composition of matter” requirement of 101 has been met.
Further analysis would determine if other 101 requirements are met, and also if 102 and 103 requirements are met.
Since the direct and indirect descriptions of structure that are acceptable under 112 encompass basically all ways of describing a structural limitation, the other requirements of 112 should be where the real action occurs–i.e. described with sufficient specificity to satisfy the enablement requirement.
If a claim to a programmed machine is construed as a combination claim with an MPF limitation, the machine that is programmed must be described with sufficient specificity to satisfy enablement, for instance–if not, the claim fails 112.
Even if 112 is satisfied and 101 is satisfied, 102 and 103 hurdles would remain.
And since there is a finite range of discrete functions able to be performed by a programmed general-purpose computer (as it is commonly understood), many of the claimed combinations of functions would fail 102–and even if they somehow survived 102, it is all but impossible to understand how they could satisfy 103.
Your statement that “When considering the patentablity of a programmed computer, one can almost ignore the computer entirely and simply ask whether the claimed “process” achieves a new, physical result.” is off the mark.
First, the unprogrammed computer must be sufficiently well-described to satisfy 112.
Second, it is not the “physical result” of any “process” that imparts patentability to an article, it is the STRUCTURE. Talking about the process steps by using, for example, means-for clauses, is an acceptable way under 112 of talking about the underlying STRUCTURE. It is a description of the process steps themselves–NOT THEIR PHYSICAL RESULTS–that is the description-by-proxy of the underlying structure.
The hardware is NOT unchanged–the relevant inquiry is whether the changes that do exist, as described in the claim, satisfy the criteria of 112, 101, 102, and 103.
Regarding "difference in kind," I invite you to read the Eibel Process case where that issue decided the case.
Difference in kind is required for non obviousness. Otherwise, the claim to item2 is obvious over item2 if they are different only in insignificant details. From a printed matter point of view, the functional relationship of the one item to the media has to be different than other items, else the subject matter is obvious.
Now we do have the problem of whether to classify the issue as one of 103 or 101 or 112, but that is beyond the scope of this discussion unless you want to divert to that as a discussion.
The “dunce” comes to mind as well, Pile On. I suspect you spent many an hour in the corner with your hat on displaying to all that could see you your consummate academic prowess.
Late to the game? Lulz, fool, I’ve been in this game for two or three years now. Me and this other tard had the same conversation you and Ned just had years ago. Still, neither you or he like to talk about what the actual functionality is.
Eventually you’ll get down and tell us that the functionality of the CRM is supposedly to make the machine do the steps listed. But of course that’s outrageous as that is only the function of the instructions on the CRM, not the CRM itself. As can be easily demonstrated by simply programming the computer yourself to perform the steps without using the claimed CRM at all.
Hey mindnumbed robot, pissing into the wind and finding yourself later stiking of excrement and wondering why. Learn to read. Why did I cite the Diehr dissent? For its law?, or for its interpretation of Flook — both were written by Stevens. Steven contended in his dissent that Flook held that if the point of novelty in a claim was a mathematical algorithm, the claim was not patentable. The holding of the Diehr court majority, which is what I actually cited, was that regardless that the only thing new was the mathematical algorithm, the Diehr claim recited a new process when the claimed subject matter was considered as a whole. One could not, they said, dissect and then ignore.
I can only believe that your blind animus had so unhinged your perception of reality that you no longer have the ability to understand the English language. I suggest you wet your finger first and determine which way the wind blows before you let fly.
“Remember bucko the PMD is not something that entitles people to protection, it is something which can be applied to take it away”
6, you are late to the game and clueless as to what is going on. The discussion is on the exception to the PMD which makes up the entire PMD.
You cannot and do not have the PMD without the exception.
Try to keep up.
“not different in kind”
Why do you think “in kind” is a required difference?
Would the printing on the outside of a measuring cup of any Shakespearean sonnet have achieved the functional relationship that permitted patenting in that case?
The difference does not have to be “in kind.” The difference has to be a difference and the difference has to be functionally related. The “what is written” is the driver of the difference, not the “how the written material is read”
You are overreading again.
The phrase “willful ignorance” comes to mind.
“Handwaving. Bootstrapping galore!”
Indeed Ned. And it’s funny that they don’t even realize that they’re doing it.
“The positon is clearly evident. As has been mentioned, the relationship really is there, otherwise discs would not be sold to begin with. ”
Ok, we can accept that it may be there. Now, put it in words tard breath. WHAT IS THE FUNCTIONAL RELATIONSHIP? PUT IT IN WORDS.
“There exists a defacto relationship because the explicit end functioning IS achieved ”
Not the functioning of the CRM though… only the functioning of the information on the CRM. Which is what we’ve been telling you.
“The fact that the mechanism does work is more than enough.”
What mechanism? The CRM? The fact that the CRM “works” somehow makes how you’ve chosen to distinguish it magically ok? Because I’m lost as to how it working does that.
“Quite simply, your reasoning keeps stopping at the point of the exception. You keep on presenting a position that does not reflect the full understanding of the doctrine. You keep stopping just before the critical portion of the debate and you want to draw a conclusion before you actually discuss that critical portion.”
Indeed it does. I’m sure Ned stops his reasoning at that particular point because that is the particular point beyond which no further reasoning is required. There is no reason to discuss whether or not an exception to a printed matter exception exists in regards to 103 if we’re not even talking about 103. Particularly, Ned would appear to be referring to a rejection under 101 or 102. Under which statutes I note the modern printed matter doctrine has no place. As the good judges noted, there was the old school doctrine where PMD was applied to 101 and the new school where it was applied to 103. Critically, it appears Ned would make a rejection under, inter alia, 102, where the PMD doesn’t even show up.
“and you keep on arguing from a pointof the doctrine that is incomplete.”
Lulz, I think he’s arguing without the doctrine because he isn’t trying to apply the doctrine in the first place. Remember bucko the PMD is not something that entitles people to protection, it is something which can be applied to take it away. In other words, it does not give life to claims, they either already have it or not. Ned simply notes that they have no life to begin with, thus, trying to apply the PMD is not needed to kill them.
“Diehr reemphasized Flook’s holding and clarified in that case that an old process could be modified by a new algorithm to produce a new result. Flook was unclear on this point. See, Steven’s dissent in Diehr.”
WOW – Ned – pay attention to who is saying what! You need to recognize that dissents are not law.
PT, I will agree and I believe I have agreed with you that what Benson “held” has been debated over the years. I continues to be debated. The holding was anything but clear.
We can say the same thing about Bilski. While there is a lot of discussion in that case, the actually holding of the five Justices in the majority is opaque. The dissent ridicules it for this, and justly so.
All nine justices agreed that the Bilski claims were abstract, but not a single one explained why.
Back to Benson, all we know is that now, the Supreme Court cites it for the proposition that programmed computer that only produces numbers from numbers is unpatentable. That has been my understanding of the case for a long time as well, although in the beginning, I too was distracted by the “wholly preempt” language.
Flook stands for the proposition that “wholly preempt” of Benson was not the point of that case. Flook held that a claim, “considered as a whole,” that was not directed to a statutory process could not be made patentable by limiting it to particular uses.
Diehr reemphasized Flook’s holding and clarified in that case that an old process could be modified by a new algorithm to produce a new result. Flook was unclear on this point. See, Steven’s dissent in Diehr.
So, regardless of how the cases have been misinterpreted in the past, we now have the Bilksi majority clarifying their interpretation. See, Bilski 14.
Circling back to Benson, I don’t know exactly why you say I am wrong about Benson. I disagree that Benson ever required “wholly” preempt. I think it simply applied the MOT to the result of the calculation, although they didn’t say so clearly.
Another pest.
When a court (any court) makes a speech and the contents of that speech have nothing to do with the interpretation of the law, nothing to do with the rationale that supports the holding of the court applying the interpretation of the law to the facts of the instant case, and the contents of said speech are couched in weasel escape words and phrases…
Then when a lower court applies that which can be applied by the higher court’s ruling (even the highest court), and is not told that such is an express violation of the law…
Then when the higher court (even the the highest court) later changes their mind…
…I guess that “being wrong” is not something that happens in a vacuum of legal jurisprudence.
It might take a lawyer to recognize what a court (even a Court) can and cannot do.
I AM NOT SAYING THAT NED IS WRONG HERE.
I am saying that Ned does not understand how the system works, the parts of a decision by a court (even the highest court) that have legal effect, and what type of legal effect different parts may have (or even that different parts of a court’s decision may have different legal effect).
Anon, join the crowd of those who simply refuse to get it.
Press ignore.
You can take you inane preaching to another corner. Words do count. Meanings do count. "Misquote" and "disagree" are not the same thing.
Overreader, or ping, or whoever, is a fricken liar. I do not mince words.
Anon, "defacto relationship", "is achieved."
Between what and what? You never state! That is the problem.
To define over every other cart, the item must modify the cart. The program has no relationship to the media that is not different in kind than than every other program.
You keep skipping this point as if it were not important.
I have met your kind often in court who seek to prove a fact, a critical fact, of infringement by handwaving, burying the critical fact between two others that are easily proved. You have done just that here.
Handwaving. Bootstrapping galore!
“If he and I were in the same room, he would be in for it, big time.‘
And please, leave the internet tough guy crrp oout of it.
If you do not want to be told that you misquote, then stop misquoting. The misquote is not the words themselves, but how you used those words. Quie simply, you DID misquote. All the huffing and puffing you are doing afterwards just indicates that you are not mature enough to realize your error. Go ahead – keep holding your breath.
If you want to be treated like an adult, then act like one.
Ned,
If that is how you feel, then I am not surprised that you go to such great lengths to avoid recognizing the simple fact that sometimes you are wrong. The phrase “Truth Hurts” never fit better.
You attach far far too much emotion to being right or wrong. This quite literally blinds you and keeps you from admitting when you are wrong.
If you cannot (or more likely as indicated here) will not admit when you are wrong, there is no possibility of having a gentlemanly debate. Do you really think that concedina point in a debate is fraught with as much emotion as you demand to be invested?
The only ignorance here is yours – and the fact that you refuse to change your ignorance only means that you refuse to learn and you are not mature enough to have any type of discussion on the merits. In essence, you are saying that you cannot be wrong and No One better try to tell you that you are wrong or try to correct any errors in your position. The plain fact is that you are wrong on a number of your stated positions. A number of your stated positions DO NOT conform with fact or truth. As Overreaders Anonymous put it – you have a choice when faced with this realization. You can admit your ignorance (and learn), or you cna continue (and knowing that you present non-facts or non-truths, be deceitful). You DO NOT GET to ignore the facts or truth, merely because such are inconvenient for you.
To take such an over-the-top offense is plainly childish. This is a completely unreasonable and childish stand to take. You getting so mad like this is exactly like a child throwing a temper tantrum. One should never be offended by the truth, evn if the truth is presented in a less than optimal manner.
Your understanding of what it means to be “rude” (and your acceptance of truly rude behavior) is unacceptable.
Either continue in your childish rants AND show a little defense, or buck up and address the facts and truths given, or be prepared to have the score continue to be run up.
Ned,
The argument has been presented. I am afraid that you will have to retract your “None. Nada. Zilch… You must state a position.” The positon is clearly evident. As has been mentioned, the relationship really is there, otherwise discs would not be sold to begin with. This is simply reality, and cannot be “cleverly” argued away or just ignored (and in an analagous sense, one only has to point up to the scoreboard on this position). The only way the ball is back in my court is if you are punting and letting me score yet another touchdown.
There exists a defacto relationship because the explicit end functioning IS achieved (on the same end type of computer – there was a bit of dust-kicking by trying to insert end computers that can take any encoding and do something different – but that was a disenguous red herring best left ignored) with an encoding that meets the claims. The fact that the mechanism does work is more than enough. The fact that differently encoded discs actually do create different machines that DO different things is more than enough.
You have punted. I have handed the ball off to my running back and now it is up to you to tackle him. Ignoring this already has resulted in the score being run up. If you want to be in the game, I suggest that you change your tactics.
Who do you thing PT is?
That said, given the long struggle between the CCPA and Federal Circuit and the Supreme Court on this issue, it seems that at least some on these courts felt the Supreme Court was wrong.
Yet the attitude that the lower courts can prevail over the Supreme Court is surprising. The person who wrote the post cannot be a lawyer.
Actually, anon, I have yet to see anyone here, including yourself, actually lay out an argument as to why the program has relationship to the media that is at all related to the claimed functions.
None.
Nada.
Zilch.
Now you went to a lot of trouble to writ all those words and still couldn’t spell out what it the relationship is, well…
Just let this be understood, we, Malcolm and I and 6 and Leo, and perhaps many others, all contend there is no functional relationship that anything to do with the claim limitations regarding the program.
The ball is in your court to explain to us why we are wrong. You cannot just stand there and say we are wrong. You must state a position.
One more point, anon, and I think I know who you really are, that PT post said that I was “corrected.” This lingo itself identifies the poster to me. He has constantly bashed me and, from my observation, cannot engage in non rude discussions with anyone. He constantly is rude.
Also his post says I have been “corrected” about “misquoting” the law. If you look at the thread slice, it was I who quoted the Bilski case verbatim, showing exactly which judges said what regarding the MOT. I did not misquote anything at all. Overreader’s post to the contrary is a complete lie to the extent it suggests that I misquoted anything. If he has a different opinion about what the quoted passage means, he did not say that. He said I misquoted, which is a whole different kettle of fish. He called me a liar.
If he and I were in the same room, he would be in for it, big time. I can hardly understand how such a cretin has survived in this life being so rude to people on a constant basis.
“that one cannot re-patent the cart depending on the item.”
Ned, analogies can be fine items for discussions as long as the limitations of the analogies are understood.
In particular (and this is a point that many have commented upon), the cart analogy fails for B-claims because of the written matter doctrine. (By written matter doctrine, I include the applicable exception).
I hope we can agree on arguing the actual issue before us and not get caught up in arguing a faulty analogy.
Continuing, by description, you seem to reference the mere “words.” This is on point to the writen matter doctrine, but you (again) leave out the exception.
In essense, your position resolves to eliminating the exception and then saying the doctrine is as you want it to be. You are not dealing with what the exception is. You are note dealing with the actual full doctrine. You limit your understanding to the cart analogy.
As to “the description,” it is very clear that what those words are have a very real, very functional relationship to the media itself. Please note the subtle change in Malcolm’s recent post in that he uses the word “encodes” rather than merely “written.” This subtle switch is an important point because “encode” means something different than merely “written.” “Encode” implies the as-claimed necessary “condition antecedent” (as Overreaders Anonymous puts it). If you do not include this in your argument, then we are not discussing the same B-claim items and we will only talk past one another.
The “what the words say” portion simply cannot be ignored, because it is that portion that conveys the function claimed (and I am being a bit loose in my phrasing here, fully recognizing that the claim is to a product rather than a process – I am able to not conflate “function” as a process with “functionally related” as a doctrine). It would be as if the measuring cup case had Shakepeare quotes instead of the actual indications that it did have. You do not get to ignore what the words are in your analysis.
Quite simply, your reasoning keeps stopping at the point of the exception. You keep on presenting a position that does not reflect the full understanding of the doctrine. You keep stopping just before the critical portion of the debate and you want to draw a conclusion before you actually discuss that critical portion.
Further, you simply make a blanket, conclusory remark of “I think that all that is necessary is that the program the executable from the media.” and I do not see on what basis you are making this a necessary requirement for the full printed matter doctrine to apply.
I can see why people get more than a bit gruff with you. You have not taken the many many times suggested understanding of what the full doctrine actually says and you keep on arguing from a pointof the doctrine that is incomplete.
Take some time to understand and accept the full doctrine and then reconfigure [pun intended] your argument in that proper light.
“Wrong?”
You know what that means? I will give you a definition:
“wrong (rông, rng)
adj.
1. Not in conformity with fact or truth;”
When you accuse somebody of being wrong, you accuse somebody of being, factually wrong, a liar. It is offensive, and it is intended to offend. People who use such language in discourse and who do not know that such language offends are are ignorant boobs.
If you disagree with somebody else’s opinion, you do not call them wrong, you state that you disagree with their opinion and state why. You do not call them wrong, because that is intended to smear the person to whom you are speaking, and to inflame emotions, and to be rude.
Anon, let’s first talk about the cart. It carries items. I hope we can agree on this much: that one cannot re-patent the cart depending on the item. Simply adding that the cart can be unloaded into a destination in an automatic fashion changes nothing about the relationship between the item and the cart.
If the item, however, changes the cart in some nonobvious way, the improved card might be patentable. But that would imply that the item has functionality with respect to the cart.
A description of the item does not add that functionality. A description of the item and how it works with other machines does not add that functionality. What would add that functionality would be something like discussed in In re Lowry. If the claim required the items to be distributed about the cart in a fashion to improve its loadbearing capacity, the distribution of the items would be functional with respect to the cart and patentable.
From the above what do we learn? That a program on a medium has no relationship to the medium except for being carried by the medium. That it may have some functionality with respect to a computer, for example, is irrelevant to whether it has any different functionality with respect to the media. A description of how that program may function in a computer, is simply a description of the program. It does not change the relationship of the program to the media.
In order to be patentable, the program functionality qua program must be have functional relationship to the computer, such that the media becomes more than just a bearer of the program to the computer, but rather instead becomes an integral part of the computer. In order to provide this “program” functionality, I think that all that is necessary is that the program the executable from the media.
Obviously, this presents a problem in that 99% of all programs are not executed from the media, so asking people with these limitations into the claims is a nonstarter.
Ned,
What kind of gentleman’s debate are you trying to have if you ignore the fact that sometimes you are wrong?
Your tendency to mirror Malcolm (chi chi then, now boob) does not speak well of either “gentleman” nor “debate,” but more of a childish emotional outburst that is typically characterized by stubbornness, crying, screaming, defiance, angry ranting and a resistance to attempts at pacification: a temper tantrum.
“Says it all” indeed – but not quite, I think, what you think it says.
Ned,
Before I jump to a conclusion and read something that you may not have intended, are you saying that the claim functionality must be the same “functionally related” that allows the exception to the printed matter doctrine to apply?
Please clarify.
The program is functionally related to the computer.
For the recorded media to be justified as a component of the computer, the claim must recite or at least provide that functionality. Most B-claims fall short.
Sent from iPhone
"You have been corrected…."
Says it all. A familiar boob.
Press ignore.
Sent from iPhone
Ned,
That’s take a step away from your many fans and discuss B-claims in a calm and civilized manner.
We can start with your proposition:
“Beauregard claims, as a general matter, do not require that the program recorded on the medium be executed or be executable from the medium.”
It appears that you think the “executed or be executable from the medium” is an important point.
Can you elaborate?
Are you thinking that “functionally related” must mean “executable”?
In truth, the Court was not competent to speak to limiting protection away from these programs, rather than in “extending” to cover them. As there was no existing basis in law to make the limitation
LOL. Yet somehow the case made it to the Supreme Court. And somehow there’s legions of folks even within the software industry who think that these patents are a sxck jxke.
Software patent fundies. They never cease to make me laugh.
Ned,
In case you misunderstood, the message of my post was that the Supreme Court does not have the authority to legislate law, and the verbage laid down in Benson by Justice Douglas could be and was ignored by subsequent lower courts for the very reason that such verbiage has no legal effect. The lower courts did not “expand” protection, because there was no need to “expand.”
That is why there is no such Supreme Court effect of “expanding” patent coverage, because no such effect was necessary. And since no such effect was necessary, Congress did not need to act on what you somehow see as a request from the Supreme Court to do so. Congress did not need to act as you seem they think to.
Quite simply, not everything out of the Supreme Court is the Law of the Land.
Secondarily, you have already been corrected on the MOT issue. See the exchange between you and Overreaders Anonymous at:
Aug 13, 2011 at 09:38 AM
Aug 13, 2011 at 11:19 AM
Aug 13, 2011 at 02:37 PM
Aug 13, 2011 at 02:56 PM
I do not understand your obsession with misquoting law, and then ignoring those that correct you.
Ned,
Make your choice and maybe when you answer a simple question I will answer one in return.
Are you being deceitful or ignorant?
LET ME TAKE A STAB AT THAT.
When you have the Art that applies to an application, and then someone decides to steal by designing around it. And with that Fraud in essence becomes the Art that trashes your Application? So then the fake Design around becomes “Prior Art,” that really was never the Art to begin with?
Um no, you are on ignore for a very good reason and you know it.
Ned,
Every accusation you make today applies to you and your pal Malcolm.
A total lack of facts and actual law is all anyone gets from you two.
Malcolm is the King of the ad hominem and you are the King of the misrepresentation. There is definitely a fundamental dishonesty going on here and A New Light nails exactly who that dishonesty is coming from.
Quite the pair. Neither of you will actually discuss the actual issues, or even plainly state what the issue is with the actual law.
How many times have I read now you being asked to explain the exception to the printed matter doctrine and you HAVE NEVER DONE SO.
You say it is time to put others on “ignore”, yet you have been doing this consistently to anyone that challenges your bizarre viewpoints.
Do everyone a favor, talk about the issues, and only the issues, and do not falsify the legal holdings when you do talk about the issues.
Malcolm already has the habit of saying others do the dirty tricks that he does – you do not need to join him in that habit.
Malcolm, who are these folks? When they get cornered they stop discussing the issues, and resort instead to — well how would you describe it? But it generally consists of ad hominem attacks or name calling.
This pattern tells me there is something fundamentally dishonest about them. Recall, that ad hominem attacks are essential to propagandists.
Regardless, I wish there were some way we could simply avoid them, but that has become more difficult all the time due their shape shifting monikers. Ping is gone but I think ping is still here, but using different monikers.
I don’t know about you, but as soon as I identify one of them by their knowledge of posts months and years ago, it is time to call them on their deception and put them on “ignore.”
I notice Overachiever, that you decline to answer a simple question. Why? Why do you simply refuse to engage in serious discussions?
A PT, but Benson has become the law of the land because Congress never acted and the Supreme Court continues to follow the MOT it announced. The programmed machine must do something physical (clue) rather than just calculate a number that might be useful, but not used.
Benson left the decision to change the law to Congress. Congress never acted to expand protection to computer programs that only produced data. It reacted in horror to State Street Bank when it was announced, and, if one listens in on the debates in Congress, they are not too happy about trolls which typically employ “software” patents.
But you are also quite right that the Federal Circuit thought it was the Supreme Court and did it damndest to expand protection of Software while ignoring, as best it could, the Supreme Court.
They did so just again in the last few months in Prometheus in a 101 case that, while not a software case, had similar issues.
“we are discussing here why “the exception” is illogical, both factually and legally.”
Hey Malcolm, look up at the scoreboard.
You have shown no offense and no defense. Only table pounding.
What “facts” make the exception illogical?
What “laws” make the exception illogical?
You will have to speak up over the noise of the table pounding.
TA: The typical Beauregard claim is not merely reading something from a computer readable media
The typical Beauregard claim is a composition claim. There is no “reading” required to infringe a Beauregard claim. There is no “programming” required to infringe a Beauregard claim. All you need to do is sell a computer-readable disc encoding the recited instructions.
To stop there is to not include the exception to the printed matter doctrine
Dear Clxxlxss Rxtxrd – we are discussing here why “the exception” is illogical, both factually and legally. If you can’t process this basic information, then you are far too stxpxt to be having this conversation in the first place.
Benson was ignored by the lower courts – and rightly so – because Douglas overstepped the function of the Supreme Court in deciding what the law as written should be (in essence, re-writing the law) as opposed to determining or interpreting what the law as written was.
The flaws in that decision are most vividly captured at the end of the decision:
“It may be that the patent laws should be extended to cover these programs, a policy matter to which we are not competent to speak.”
In truth, the Court was not competent to speak to limiting protection away from these programs, rather than in “extending” to cover them. As there was no existing basis in law to make the limitation, any Supreme Court direction to that effect does not have the force of law and that is why the lower courts could rule as they did following Benson. If the lower courts could not do so, then subsequent Supreme Court cases would merely need to point this out and reiterate Benson directly.
The flaw continues:
“The President’s Commission on the Patent System rejected the proposal that these programs be patentable:
‘Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. Direct attempts to patent programs have been rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further, and should not be permitted.’ ”
The President’s Commisssion did not have the authority to make law and its recommendation did not make law. The Court misstepped by giving that commission’s results the de facto power of setting the law.
The flaw continues:
“ ‘The Patent Office now cannot examine applications for programs because of a lack of a classification technique and the requisite search files. Even if these were available, reliable searches would not be feasible or economic because of the tremendous volume of prior art being generated. Without this search, the patenting of programs would be tantamount to mere registration, and the presumption of validity would be all but nonexistent.’
‘It is noted that the creation of programs has undergone substantial and satisfactory growth in the absence of patent protection, and that copyright protection for programs is presently available.’
If these programs are to be patentable, considerable problems are raised which only committees of Congress can manage, for broad powers of investigation are needed, including hearings which canvass the wide variety of views which those operating in this field entertain. The technological problems tendered in the many briefs before us indicate to us that considered action by the Congress is needed.”
Douglas was basing a right on a commission’s view of an administrative agency’s convenience factor – the tail wagging the dog.
Ned,
You are either spouting non-sequiturs and purposefully being misleading or you are in error of your understanding of what a Beauregard claim is and even what the issue surrounding such a claim is.
Your choice: deceitful or ignorant.
Overreaders Anonymous, while there is nothing literally wrong with your post, it nevertheless misrepresents what I said.
What I said is that “I have never seen a B-claim that required that the program be executed or even be executable from the medium. That article/machine cooperation is not claimed.”
Now I hope that you least agree to this short, two sentence proposition, as a statement of fact.
Beauregard claims, as a general matter, do not require that the program recorded on the medium be executed or be executable from the medium.
“From the medium.”
Nice that you don’t expect a reply, but everything you post above in 1) proves my point.
Thanks for playing. Now run along.
Please read the court’s own words.
1) The MOT
Kennedy, Alito, Thomas, Roberts, Scalia
“This Court’s precedents establish that the machine-ortransformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under §101. The machine-or transformation test is not the sole test for deciding whether an invention is a patent-eligible “process.”
Breyer, Scalia
“In sum, it is my view that, in reemphasizing that the “machine-or-transformation” test is not necessarily the sole test of patentability, the Court intends neither to deemphasize the test’s usefulness nor to suggest that many patentable processes lie beyond its reach.
Stevens, Ginsburg, Breyer, Sotomayor
“…[A]lthough the machine-or-transformation test is reliable in most cases, it is not the exclusive test.
2) Why are Bilski’s claims abstract?
Regarding how the majority decided that the Bilski claims were abstract, I await your views. However consider the words of four Supreme Court justices who observed,
“The Court, in sum, never provides a satisfying account of what constitutes an unpatentable abstract idea. Indeed, the Court does not even explain if it is using the machine-or-transformation criteria. The Court essentially asserts its conclusion that petitioners’ application claims an abstract idea. This mode of analysis (or lack thereof) may have led to the correct outcome in this case, but it
also means that the Court’s musings on this issue stand for very little. ”
) Do the Bilski claims pass he MOT?
Obviously, in my view, the Bilski claims did not pass the MOT. They are not directed to a particular machine. They do not transform an article from one state to another, or to a new thing. The claimed subject matter produces a result that is determined by a novel mathematical algorithm, a number that represents balanced risk. This is the very kind of claim condemned in Benson and in Flook. It does not appear to pass the MOT for this reason.
I don’t expect a reply to this post from you because because I believe your only purpose in making the above post was to demonstrate your animosity to me personally.
Chi Chi…?
Hey Malcolm, Look up at the scoreboard.
“The Supreme Court in turn basically affirmed that that test is all but exclusive.”
That about says it all: You have no clue as to what you are talking about.
There are at least these two solid takeaways from Bilski:
1) Bilski tried to claim an abstract idea and was rejected.
2) MOT is not “all but exclusive.”
Step One Ned – learn when you are way over the limit of a reasonable interpretation of what you read.
Your choice of words is excessively poor.
Bootstrapping or booting refers to a group of metaphors that share a common meaning: a self-sustaining process that proceeds without external help.
If the claim states such and such as a limitation, then such and such is not beyond the scope of the claim. Condition antecedent is still condition required.
Once again Ned, you have let your preconceived notions run away from the actual situation.
You are misunderstanding, misstating and overreading.
What you want is just not an appropriate match for what it is.
A new light, I see that Stevens got a bit off track in his dissent in Diehr. He intepreted Flook to hold that if the only thing new in a claim was an algorithm, that that claim was unpatentable. His dissent is an odd interpretation of Flook, because his majority opinion in Flook went out its way to show that applications of laws of nature to produce new results was patentable, citing the Eibel Process case. That understanding of Flook was the basis of the majority holding in Diehr.
That said, Steven’s dissent in Diehr described a war between the Supreme Court and the CCPA/Federal Circuit concerning 101. The CCPA had, before Benson, simply declared that programmed computers were new machines* and, then after Benson, maintained that view despite it being flagrantly inconsistent with Benson. The CCPA limited Benson to “wholly preempt” ignoring Benson’s discussion of the MOT. Even while Flook struck down that crabbed interpretation of Benson, it remains good law to some even today.
This consistent disregard of the Supreme Court by the CCPA and the Federal Circuit eventually led to Alappat and State Street Bank, two decisions now overturned to the extent they relied on “useful, concrete, tangible result.” Those two cases opened the floodgates to pure software and business method patents that have nearly brought down the patent system.
Shocked by what happened (including the troll phenomena spawned by Alappat and State Street) and the reaction of the American people and Congress, the Feds did a 180 and finally recognized the MOT test announced in Benson. The Supreme Court in turn basically affirmed that that test is all but exclusive.
So, I find it somewhat remarkable that there are folks here that still believe that In re Bernhart is good law. It is not, and has not been good law since Benson. But that they still believe is itself remarkable indeed.
* In re Bernhart, 57 C. C. P. A. (Pat.) 737, 417 F.2d 1395 (1969), the court reaffirmed Prater, and indicated that all that remained of the mental-steps doctrine was a prohibition on the granting of a patent that would confer a monopoly on all uses of a scientific principle or mathematical equation. Id., at 743, 417 F.2d, at 1399. The court also announced that a computer programmed with a new and unobvious program was physically different from the same computer without that program; the programmed computer was a new machine or at least a new improvement over the unprogrammed computer. Id., at 744, 417 F.2d, at 1400. Therefore, patent protection could be obtained for new computer programs if the patent claims were drafted in apparatus form.”
“To stop there is to miss the point of the claim and to confuse the “reading” and “writing” by only partially anthropomorphizing what the machine and article of manufactures are and do. To stop there is to not include the exception to the printed matter doctrine – while persistently attempted, those attempts are attempts at arguing something that is not what matters.”
I sense a lot of bootstrapping going on here. The claim is to a computer readable medium bearing a program of a particular description. I have never seen a B-claim that required that the program be executed or even be executable from the medium. That article/machine cooperation is not claimed. So, please, stop talking as if this requirement was actually there, it is not.
Arguing that this or that functionality distinguishes the claim is beyond the scope if the claim does not require such functionality. How many times have I encountered such arguments (in cases I have reviewed) where the applicant has made arguments beyond the scope of the claim? So often I cannot count. Most examiners quickly catch on, and make the observation that the applicant’s argument is beyond the scope of the claim.
Nothing in B-claims requires execution of any program by any machine. That is beyond the scope of the claim, so quit it with your bootstrapping arguments.
“It’s close enough.
merely reading a disk is not the same a programming a computer.
Nobody is claiming otherwise.”
Actually, by saying “It’s close enough” you are claiming otherwise.
The typical Beauregard claim is not merely reading something from a computer readable media – there is an attendant aspect that must also be included.
To stop there is to miss the point of the claim and to confuse the “reading” and “writing” by only partially anthropomorphizing what the machine and article of manufactures are and do. To stop there is to not include the exception to the printed matter doctrine – while persistently attempted, those attempts are attempts at arguing something that is not what matters.
I was over on another thread, and I read some things American Cowboy wrote. And then read some others remarks. I agree with a lot that was stated. And I might add being 2011 and a world of difference form the 70’s,
the only way this Country free of Patents would work is if it were gated. And we only bought and sold to ourselves. So why don’t we consider that we must come back to the center a little. In order for this Country to remain great is for fairness. It is fair that we put people to work. It is fair that we manufacture our ideas in this Country. It is fair that if you file in another country you must pay 10x the amount you would have paid to file in this Country. Now that is not being deceptive or biased. That is helping curtail Deception. And what is good for the USPTO is good for America. And PATENTS are good for America.
Now some may choose to File in another country while paying the high fees. But if they do it will be either a Red Flag or a choice they have made.
A little Poetry to soothe the savage in your beat.
I will sign this one because it has a melody that all should listen to.
You should listen to the Snowflake, not the flakes.
There was a little Snowflake,,
And it came falling down.
But as it did it grabbed another,
As both Flakes hit the ground.
And when They hit the ground,
They fell on Flakes three and four.
Now Snowflake number one,
was small no more for sure.
Along comes a little girl,
She picked the four flakes up.
She blew them up into the sky.
from her hands that formed a Cup.
And now it was still snowing,
flakes attaching making bigger,
the Story that you all were told,
She’s Dumb ,She can not figure.
But did you ever stop to listen,
to the Girl that cupped the Flakes?
She knows each side like everyone,
They made a huge Mistake.
I Mistake that “She” has paid for,
And now so much time has passed,
In time the Flakes they figure,
She’s never gonna last.
But just like Benji Button,
She really does exist.
It’s been going on her whole life,
But no one gave a —-.
This didn’t just start yesterday,
or the day before.
It’s been going on her whole life.
But others chose her score.
Sort of like the Snob,
that tells you , you can’t do it.
And then just like he’s done before,
He’s wrong, and He just blew it.
But because he is a Snob,
Or his life has now passed.
Again I get no recourse,
But I do get the last Laugh!
Do you know what the Scoreboard Move is?
Have you ever played organized football?
Welcome to the Chi Phi Patent Forum. Quarters anyone?
It is late and I am finally home. I have had plenty of time to read and reflect on the many posts on this thread.
I hesitate to write.
I hesitate to write because it may seem like I am trying to convert those that will not be converted.
That is not why I write. That is not why I overcome my hesitancy.
I write because those that will not be converted have provided the very items that should be read to show why the positions they espouse are indeed bad law. And I feel strongly that bad law should not be espoused in a way that confuses bad law with good law. And by good law, I do not mean a value-judgment good law. I mean an active this-is-real law.
Those that will not be converted have slipped again into quoting law and twisting its meaning to be the opposite of its actual real meaning. I am compelled to make note of this error and to more than chastise those who commit this error, to point out that the error is evident from the case law itself.
The trilogy of cases, from Benson to Flook to Diehr does not tell the tale of a straight line, with only minor corrections or refinements as some who are quite vocal here would have you believe. It is important for everyone to take the time to read the cases (and if possible, read the lower court cases as well).
But just as important as it is to read the actual cases, it is important to place the authors of the opinions in the context of time and philosophy.
It has been pointed out for the benefit of newer readers that this is a story of “value” and that is indeed true. There has been a great tug-of-war when it comes to “value” and Section 101 has played the albeit infrequent, but quite visceral centerstage attraction, and the star player of that attraction is best personified in Justice Stevens.
Justice Stevens is an extremely attentive and extremely diligant man. Unfortunately, Justice Stevens is also an extremely passionate, biased and activist man. Decisions before him were less about what the law meant and more about what he thought the law should mean.
It is absolutely critical to note on which side of the decision Justice Stevens writes from, as this most exemplifies the seesaw battle over “values” as played out on the center stage of the Nation’s Highest Court.
And Stevens has proven his consistency of philosophy, even to the bitter end of his career, in the culmination as a losing side in Bilski. Throughout the pitched battle, one can tell whether the Stevens Views were ascendant or not by where Stevens opinion lay.
Interwoven in the drama is the subplot of the CAFC and its predecessor, each of which courts aimed to be the definitive word on patent law, a role (that of being the definitive arbiter on any law) that is jealously guarded by the Supreme Court.
In any event, Stevens has always written, even in defeat, as if his view is what the law should be.
But that is not how law works. The law as written by the dissent (and in Bilski, make no mistake, Stevens’ opinion is a dissent in every way except for name), is, when in contrast to the majority opinion, and these cases are all studies in sharp contrast, great examples of bad law.
It is not as if the majority views and the dissenting views are mere shades apart.
They are not.
They are as starkly contrasting as night and day.
It is thus painful to see those who post on the topic try to co-opt the majority views and elevate the dissenting views to recast what the current state of the law actually is.
It is painful and it is extremely dishonest.
An attorney is under an ethical obligation to acknowledge controlling law. I believe that even on blogs, that ethical duty exists, and in fact, since there is no judge to chastise and control the attorney, the ethical need to be diligant, to be honest, is even more pronounced.
I think it is fully legitimate to disagree with the law and to argue for its change. But it is imperative that the meaning of the law not be bent so badly as to make dissenting views ascendant. Such is a travesty of justice because even though we discuss law and its merit without being in an actual courtroom, we all should be aware that our words, even on blogs do become reflected throughout society, in the media, in the common man’s understanding, in the views championed and challenged by academia and yes, even reverberate back in the courtroom itself.
We owe justice more than our feelings and convictions, more than our personal beliefs and philosophies. We owe justice the courtesy and respect to recognize what the law actually is at any point in time.
To this end, I heartily encourage all to actively read (and re-read) the cases of the trilogy and the capstone Bilski. And as you read, be aware of the differences in time and opinion of the writers – and critically important, which writers are writing from which end of “the scoreboard.”
In damming prose, in particular, the dissents from the last two cases, the losing side view of the last two cases, those of Diehr and Bilski, those words as written by Stevens should be studied carefully for what Stevens says the law should be.
Study this carefully to arrive at exactly what the law is not.
Many of the themes that have been played out to the audience of this blog, which have been perpetrated as good law will find a vibrant home in these last two dissents.
These items are not good law. Those that would misrepresent what the law means does a disservice to all, to each common man, to each attonery, to each academic, to each judge, and even, to himself. Those who wish to understand why bad law should not be characterized as good law are recommended to read, study and contrast the views expressed not only in each decision, but how each decision changes who is on top. And who is not.
Thank you for reading this. But thank you more for honestly discussing what the law is.
“We’re not talking about our favorite baseball players for fxckssake. Go post to some CNN article on patent reform if you can’t stand being criticized here for lack of clarity.‘
Oh I can take criticism for lack of clarity. But that’s not what you are dishing to me. All you got for me is talking smack, when you have not shown that ability.
Do you know what the Scoreboard Move is?
Have you ever played organized football?
I doubt it, but let’s pretend you can understand my story anyway.
Imagine a game and your opponent just loves to talk smack. That’s cool, you know that you are better and you prove so on the field, play after play you beat the shtt out of him. Yet he continues to talk smack. SO you continue to beat the shtt out of him. Your team is up 35-0 and it is not even half time. You have owned the punk on both sides of the ball, on offense and on defense. Yet he continues to talk the same smack.
What do you do?
You pull him aside, take off your helmet, offer the biggest grin you can until he stops talking smack and then you raise your arm and point to the scoreboard.
There is nothing more satisfying than the seeing the realization on the punk’s face that all the punk has is his smack talk.
Guess what, Malcolm [I lift my arm and point ot the scoreboard], it’s 35-0 and its not even halftime and all you have is your smack talk.
I have the offense – the law.
I have the defense – the facts.
All you have is your pounding the table.
Do you know how silly you look?
“This is a discussion about the legal basis for certain (in some cases arcane) types of claims issued by the USPTO.”
It certainly is. When are you going to actually get into the game?
Your cheerleader Ned, with his tired retreads from dissents (which only reinforce the fact that his position is bad law, is certainly not going to get you up on the scoreboard.
anon,
I claim:
computer program on a computer readable media.
The function of a computer program is to provide executable instructions to a computer. The functionality requires that the computer be able to access and execute the instructions.
If the computer program cannot be read and executed from the readable media, there is a failure in claimed program functionality.
Now, we know that most, if not all, programs on computer readable media are not executed from the transportable media, and that the media only bears the programs to the computer. The claims seem to not have some essential functionalilty related to executability that needs to be expressed to make them definite to the extent they could validly claim statutory subject matter.
For 101 purposes, though, I think we should take the broadest reasonable construction to see if the claims read on unpatentable subject matter. We quickly see, that without any requirement for executability from the transportable media, that the claims read on what we would affectionately call printed matter because the claimed program functionality has nothing to do with any functionality the program may have with the media qua media.
In essence, B-claims are either indefinite or non statutory.
You might want to remember that some of the tech people may have English as a second language and be mmore careful about what you say you agree with.
This is a discussion about the legal basis for certain (in some cases arcane) types of claims issued by the USPTO. We’re not talking about our favorite baseball players for fxckssake. Go post to some CNN article on patent reform if you can’t stand being criticized here for lack of clarity.
if you want to claim a method of programming a computer”
Where did you get this from?
From New Anon’s 1:39 post. The correct question (as asked already by yours truly) is why is New Anon talking about “programming a computer”? Honestly, I don’t think New Anon is capable of articulating an answer to the question. I’d just drop it if I were you.
you don’t agree with that portion of the doctrine, so it must be wrong…
No, I don’t agree with that portion of the doctrine for the reasons that I’ve given here in this thread and elsewhere. You, on the other hand, seem to care less about the “logic” used to establish the exception and are satisfied with simply referring to it endlessly as if that somehow makes everything special and wonderful.
Quite right there. My bad. I intended to say the dissent in Flook.
In part, that dissent said,
“The present case is a far different one. The issue here is whether a claimed process [Footnote 2/2] loses its status of subject matter patentability simply because one step in the process would not be patentable subject matter if considered in isolation. The Court of Customs and Patent Appeals held that the process is patentable subject matter, Benson being inapplicable, since
“[t]he present claims do not preempt the formula or algorithm contained therein, because solution of the algorithm, per se, would not infringe the claims.”
…
“…[I]t strikes what seems to me an equally damaging blow at basic principles of patent law by importing into its inquiry under 35 U.S.C. § 101 the criteria of novelty and inventiveness. Section 101 is concerned only with subject matter patentability. Whether a patent will actually issue depends upon the criteria of §§ 102 and 103, which include novelty and inventiveness, among many others. ”
anon, you should know that Malcolm and I disagree on this: that the structure of DNA, isolated or cNA, is sufficient by itself to confer patentability. I think one must still do a 101 analysis based on the claimed subject matter as a whole to determine what was being patented,the chemical structure or the information.
I think it is the information, just as does Judge Sweet. Malcolm wholeheartedly approves of Judge Lourie’s opinion.
Malcolm and I know each other’s positions. They are being hotly debated even now and will eventually be decided by the Supreme Court.
In computer law, the whole issue of patentability of software and Beauregard claims is still on the table given Bilski. Even whether software can be patented as a machine (when the machine only produces data) and not as a process that is actually tied to a specific, patentable use, is an issue that has to again be addressed now that Alappat and State Street are no longer good law.
anon, I can understand that Malcolm can be a bit rough on people. So can 6. So can I. However, I agreed with the substance of what Malcolm wrote. Malcolm’s point was that music made a CD-ROM different just as much as a program made a computer different. I amplified the point in my own post.
Archer made the exact same point in his dissent in Alappat when he discussed music on a CD-ROM or on the roll for a player piano. There is nothing insulting in this at all. It is a serious point. It was again, the point I amplified in my post.
Malcolm’s post, which I supported, next expressed exasperation with that portion of New Anon’s sarcastic reference to DNA. The original snideness came from New Anon, not from Malcolm. The snideness in New Anon’s post suggest long familiarity with Malcolm’s position on structure and DNA, and that New Anon was not so new after all.
My own post was polite and serious, and for that, I got an F off. This overblown heat seems to prove that New Anon is an old poster who has grudges to bear, just as Malcolm suggested. I don’t care who he is, he is not worth talking to, IMHO.
Malcolm.
Try harder. Try without the preconceived “it must be wrong” passion. Keep trying until you get it.
Ned,
Steven’s dissent in Diamond v. Diehr is nothing like New Anon’s statements and questions.
“Yes, a general purpose computer and a disc are both patentable subject matter in the first instance.”
I think I see where New Anon may be getting further lost.
If, as Leopold states, a baseline machine and article of manufacture are patentable subject matter, and if, as the law states, any new and useful improvement thereof are also patentable subject matter, then why is such a fuss being made about the present subject?
Rather than throwing insults, let’s see some helpful comments in reply.
I’ll start: New Anon, what you see is the result of a philosophical battle and has really very little to do with actual law. Another poster had remarked that the debate has to do with “values,” and was entirely correct.
The problem with arguing from “values” is that that is worse than pounding tables, because “values” tend to be ir_rational, and even an attempt at conducting a gentlemanly reasonable discussion will not be fruitful.
Most likely, such attempts will be met with insults and purposeful obfuscation.
“Yes, a general purpose computer and a disc are both patentable subject matter in the first instance.”
I think I see where New Anon may be getting further lost.
If, as Leopold states, a baseline machine and article of manufacture or patentable subject matter, and if, as the law states any new and useful improvement thereof are also patentable subject matter, then why is such a fuss being made about the present subject?
Rather than throwing insults, let’s see some helpful comments in reply.
I’ll start: New Anon, what you see is the result of a philosophical battle and has really very little to do with actual law. Another poster had remarked that the debate has to do with “values,” and was entirely correct.
The problem with arguing from “values” is that that is worse than pounding tables, because “values” tend to be irrational, and even an attempt at conducting a gentlemanly reasonable discussion will not be fruitful.
Most likely, such attempts will be met with insults and purposeful obfuscation.
“there does not have to be a functional relationship between the elements of a claim.”
Ned,
You are mistaking the discussion of a doctrine with a discussion of claims. Actually, a discussion of an exception to a doctrine.
You seem to have quite some difficulty in discussing doctrines of law. This was noticable in the discussions on IC doctrine as well.
I advise you to engage in some research on this matter prior to commenting further.
Leopold,
What exactly did I mistake by pointing out the fallacy of an early part of your position?
You realize that you merely assumed that I did not read past the “writing” part.
Bad assumption.
The writing part in quotes happens to hit uponthe exception to the written matter doctrine which is pivotal to the entire discussion now raging across two threads. It is that unwillingeness to understand or accept or both the implications of what it means to “write” and when such is fully permissible under the patent rules that impedes the smallminded people who pursue their philosophies with such reckless abandon.
There are lot’s of reasons to not like the exception – but none those can be combined with any degree of intellectual honesty in not acknowlesging and accepting what the full doctrine means.
I really do “get” why people feel the need to play such games on these boards, and how painful it must be for them to recognize that they are arguing a different philosphy that is currently embedded in the patent law. But the tact (or lack thereof) employed really only convinces themselve moreso and prevents them from realizing just how foolish they are.
So now if you have managed to follow your own guidance and read through my complete post, please tell me what “clear mistake” I made in my comment. Tell me why what I point to is not “the key” to the debate.
“pure ignorance on display”
Actually, the analogy of one art’s building blocks to another art’s building blocks is pretty good for an English as a second language poster.
I recognize that that set off the NIMBY effect for you, but if you try really hard, you may be able to handle those feelings without throwing a temper tantrum or hitting those sitting by you.
“based on bad logic.”
It really depends on if you are just being a sore loser and being upset because “what you want” is not being given to you.
In that case, the exceptions are simply proper and just.
Try to grow up a little bit and accept reality.