Flowchart Insuficient Structure to Define Sofware Means-Plus-Function Limitation

In re Aoyama (Fed. Cir. 2011)

Aoyama’s pending application claims a supply chain management system with two elements: “an order controller system” and “a warehouse system.” According to the claim, the order controller generates “transfer data” using “reverse logistic means” and the warehouse receives the transfer data.  The Examiner identified U.S. Patent Application Pub. 2001/0034673 (“Yang”) as fully anticipating and that rejection was affirmed by the Board of Patent Appeals and Interferences (“Board”).

On appeal to the Court of Appeals for the Federal Circuit, a split panel agreed that the claims lacked merit but found them impermissibly indefinite rather than anticipated.

The key to the decision focuses on the means-plus-function “reverse logistic means” limitation. 

Means-plus-function (MPF) claims are deceptive. MPF claims appear to be broadly drafted and without any structural limitations. However, the patent act requires that the actual scope of MPF claims be limited to structures disclosed within their specifications. 35 U.S.C. 112 p6. The court has also repeatedly held that an MPF limitation is considered impermissibly indefinite if the specification does not contain any structure that performs the claimed function.

Here, the claimed “reverse logistic means” generate “transfer data.”  Aoyama pointed to a flow-chart (Figure 8) as providing the necessary structure.  (Shown below).   In reviewing the flow-chart, however, the Federal Circuit could not identify sufficient structure.  In particular, the court noted that the flow-chart identified a number of results, but did not identify any way that “a computer could be programmed to produce the results described in the boxes.”  Quoting both the Examiner and the Board, the Court wrote  that Figure 8 only “presents several results to be obtained, without describing how to achieve those results, and certainly not how to generate transfer data.”

Patent2011017

Importantly, the question of means-plus-function structure is much like that of written description. It does not matter whether one skilled in the art would be able to create a structure to perform the claimed function. Rather, the focus is on whether such structures were disclosed in the specification.

Because the means-plus-function limitation lacked sufficient disclosure of an accompanying structure and are therefore unpatenable.

In dissent, Judge Newman argued (1) that the federal circuit improperly raised the issue of indefiniteness and (2) that the figure and accompanying text should be considered sufficient structural disclosure.

196 thoughts on “Flowchart Insuficient Structure to Define Sofware Means-Plus-Function Limitation

  1. One other thing to note: Congress is about to pass a patent reform bill. Did they put in there that software patents are to be removed under 101? No.

    The three judges should be impeached.

  2. The holding of CYBERSOURCE is just shameful. Let’s by pass Congress, the SCOTUS, the precedent of the Federal Circuit, and rather than cabin Benson as the SCOTUS has done, let’s expand its holding and recite policy reasons for doing this that have not been cited since Benson almost 50 years before.

    And, then let’s just distinguish our holding against all the cases based on sheer nonsense.

    What bothers me so much is that it is not just this case or the holding of the case but the nation as a whole seems to have gone down this rat hole of amoral behavior. There is no shame left. We are in an era that if you can do, then do it. Steal. Cheat. Lie. Rape. Burn. As long as you can do it, then just do it. No morals. No boundaries.

    It scares me that this opinion was written. It crosses the boundary of civil behavior. I believe this case is a mere foreshadowing of what is to come.

    And the fact that the readers here have not as a whole condemed this case is even the more frightening.
    There are so many reasons that this holding is wrong that it boggles the mind to list them.

  3. Newman got it right. Wow, these animals are really going after software. This holding is surely going to raise the cost of writing a software patent for no reason other than these “judges” want to get rid of software patents.

    I read the CYBERSOURCE opinion. Man, that is one of the most twisted bizarre opinions since Benson. Shameful and ridiculous.

    1) Benson is not good law.
    2) Both the GPS case and the graphics mask case could have a data gathering step and then done with a pencil.

    I don’t have time to go into depth, but the biggest reason that this is a bad law is that SCOTUS in Bilski did not hold that if one can perform a method in a human head than a machine that performs the method is not eligible for patentability. That is the holding of Cybersource. If the SCOTUS believed that was a consequence of “abstract” then they would have held as such and not have bothered with all the rest.

    Also, the way they tried to get around the fact that a general purpose computer that is programmed is a particular computer was shameful.

    This case makes me think that what we are headed for is a complete reset of the country. Judges like this that feel no obligation to apply the law are as bad as the politicians and Banksters. You have to believe that our country is going to end badly when Fed. Cir. judges write an opinion like this.

  4. “PRO SE LOLOLOL”

    Correct. To paraphrase Nikon: if the patent matters, the representation matters.

  5. Oh, and one more point, Rader seems to have adopted this same approach even for method claims. See, Research Corporation Technolo-gies, Inc. v. Microsoft Corporation, 627 F.3d 859 (Fed. Cir. 2010)(the patentable end use does not have to be claimed.)

  6. Simple, "Programming is done for a reason and that reason supplies your critical "to".

    It really does not get simpler than that."

    Simple, it not as simple as that.  The "reason," as you say, must within the useful arts, something physical, and not something such as balancing the abstract concept such as risk (Bilski.)

    The critical contribution of Alappat was that the
    technological use did not have to be claimed.  It only had to be disclosed.

  7. And further to my response, I hereby incorporate by reference what Mooney said at 1:13pm, without admitting that any particular argument advanced on the basis of the credible, specific, or substantial utility criteria of 101 is “a loser”.

  8. I’ve been through it specifically on this board more than once, in threads on testing methods, for example.

    And, no need to get testy. I am familiar with not only the US judicial system, but with the operation of big lit firms–which is where you will find many of the real reasons that particular issues are raised and others are not.

  9. many parties choose to settle or pursue other arguments rather than present a “winnning” argument that could damage their own patent portfolio.

    Tinfoil hats to the left (Mooney, stop hoarding).

  10. Not familiar with the US judicial system? It is motivated infringers that present those types of arguments. Considering that these suits involves cases dealing with tens or hundreds of millions of dollars at stake, it is interesting that these issues haven’t been raised. I would venture a guess is that no one bothers raising these issues because those arguments are losers.

    Have you ever been involved in patent litigation? The number of d.o.a. arguments that are presented vastly outweighs the number of “winner” arguments. Another interesting correlation is that greater the number of partners and/or in-house counsel involved in the ligitation, the greater the number of “loser” arguments that will be presented. People with big egos get really attached to their “loser” arguments.

    As has been noted a million times on these threads (perhaps you’re new here), many parties choose to settle or pursue other arguments rather than present a “winnning” argument that could damage their own patent portfolio.

  11. “Just because the specific, substantial, and credible criteria aren’t often used, doesn’t mean that they cannot be very useful. It just takes the court a while to realize these things.”

    Not familiar with the US judicial system? It is motivated infringers that present those types of arguments. Considering that these suits involves cases dealing with tens or hundreds of millions of dollars at stake, it is interesting that these issues haven’t been raised. I would venture a guess is that no one bothers raising these issues because those arguments are losers.

    However, since we are playing this game, what criteria do you want to employ? Credible? Substantial and/or Specific? Care to walk us through how such an argument can be made?

  12. I want to elaborate on my last post a bit. MPF claims are rarely used in most art areas because they are unduly limiting. With a conventional claim, you can disclose one implementation of an invention, and then claim the invention itself. With a MPF limitation, you suddenly limit the claim to subject matter disclosed in the specification.

    That some practitioners like to use MPF language in the software arts has always been a bit weird. I believe that, to a large extent in the software context, the goal of such language is usually to take advantage of abstract disclosure of functionality with little or no structure to get broad coverage on MPF limitations. Given the history and intent of MPF limitations, and their interpretation with respect to other art areas, this made little sense. This opinion appears to recognize this practice, and attempt to shut it down.

  13. “However, the “utility” requirement is on the bottom of the list in terms of usefulness.”

    Until it isn’t.

    Just because the specific, substantial, and credible criteria aren’t often used, doesn’t mean that they cannot be very useful. It just takes the court a while to realize these things.

  14. The biggest problem with this case, as with many of these cases, is the dicta therein that can be used to confuse.

    As far as I can tell from my brief reading (disclaimer: I did not go review this patent), the court simply felt that the flowchart disclosed insufficient structure to support the MPF limitation. From glancing at the flowchart, this doesn’t really seem to be a shocking result.

    The court is clear in that “[s]ufficient structure must simply ‘permit one of ordinary skill in the art to know and understand what structure corresponds to the means limitation’ so that he may ‘perceive the bounds of the invention.'” (quoting Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008).)

    Here, the court simply finds that the flowchart did not provide sufficient structure to be able to understand what is encompassed by the recited “reverse logistic means for generating transfer data”. From my quick review, I can’t say that I am entirely sure either. It wouldn’t surprise me if the applicant was trying to make this broad enough to essentially read on almost any means of generating transfer data. If this was the case, is it really surprising that the court took a negative view of this?

    One interesting angle: if you think that this claim is definite, what exactly do you think limits the “reverse logistic means for generating transfer data”? What sort of reverse logistic means for generating transfer data would NOT be covered by this claim?

  15. Exactly why SCOTUS baulked in Bilski. They thought seriously about telling the American people that pure business (no technology) does not belong to the “useful” arts of the patents clause of the Constitution, and then 5 of them went off that idea.

  16. “For now.”

    You are going to be hard pressed to find any judge that is going to buy an argument that says that a programmed computer doesn’t have a utility. There aren’t a whole lot of arguments you can find to invalidate “software” patents — some, but not a lot. However, the “utility” requirement is on the bottom of the list in terms of usefulness.

  17. “I suspect that many of these deals are broader in scope than the mere IP.”

    Nope — pure IP, no consulting, no “hardware,” nothing but the patents.

  18. “As for the utility requirement, that is one of the easiest requirements to overcome.”

    For now.

  19. You are more than welcome.

    As for me, I have vastly more interesting risks to take on and manage than the vagaries of software/system patents.

  20. EVEN IF one was able to have drafted one of these “well”–that is, in fulfillment of 112, 101, 102, and 103–the resulting coverage would be so narrow as to be practically worthless.

    Then you are not drafting well…

    But I am glad that you are so generous as to leave this business to others, so for that, Thanks!

  21. You are missing lots of critical information regarding my particular clients, of course.

    Things like opportunity cost of patenting, development and product launch schedule, IP portfolio strategy, co-operative development agreements, etc..

    While I appreciate that some entities can, and do, still derive value from software/system patents, that is increasingly due to their particular chosen business practices and less and less due to the place held by software/system patents within the broader patent scheme–that is, it has more to do with the character of the business and less to do with the character of the patents.

    I left lots of $ on the table, but I still feel good about it. EVEN IF one was able to have drafted one of these “well”–that is, in fulfillment of 112, 101, 102, and 103–the resulting coverage would be so narrow as to be practically worthless.

    Having done all the previous opinion work, I felt then, as I feel now, that I knew what I needed to in fact draft one “well”–but my clients generally don’t want narrow patents unless they are a critical piece of a larger portfolio puzzle, and none of my clients were particularly in the business of software, rather software is a mere adjunct to their core businesses.

    And as for software/system patents being sold for millions, well, I believe you if you say it, but I suspect that many of these deals are broader in scope than the mere IP, and include it only as a part of the negotiated purchase. I do know of somebody who recently bundled it with other business properties because they thought that was the only way to extract some value from it–to throw it into the mix–because contemplated longer-term revenue streams from licensing were no longer deemed viable. And they’re going to do it again, and is a practice they are recommending to essentially all of their clients at this point.

    So I guess they’re not completely sunk in some cases, just listing and taking on water. No doubt some entities can still extract value therefrom, but I’m glad that I’m not involved with any at this point.

  22. If one closes their eyes to the fact that software is equivalent to firmware is equivalent to hardware, then the perpetual confusion one finds themselves in should be no surprise.

    And yet, you insist on presenting yourself as a befuddled m0r0n, chasing incorrect doctrines and denying the reality all about you, shocked at the prospect that physical changes actually do happen when a computer is programmed and refusing to accept the norms that are understood by the persons of ordinary skill in the particular art.

  23. THE TUNE OF THE TIN MAN (SING AS IF HIM)
    When I see information,
    and not of that Vocation,
    I’m dumped upon again.

    And if that’s all forgiving,
    when I’ve done not much living
    you must also have no Brain.

  24. Nor me 6. But it is always those specific details that are asserted in these columns, as the new “structure” or the thing that makes the machine “specific” and therefore renders the claimed subject matter patent-eligible. Me, I think the app should include disclosure of the very structure that is relied upon by the prosecuting attorney for eligibility/patentability. Does there not have to be present a written description of what Applicant regards as his invention?

  25. “As AI would now say “Bangs Gavel. Case closed.”

    Hmmm.. I have to check my portfolio but I may a have a copyright, trademark, and pat pend on said process. Keep check on your post for a bill .

  26. “The underlying concepts are nearly as old as human commerce. That’s how sxxxty this p.o.s. application is. It could easily be invalidated under 102, 103, 112 or even 101.”

    If this is true then the claims should be rejected under 102, and 103 at best. But 112, and certainly 101 are separate issues.

  27. The critical language in the majority opinion was the word ‘to’.

    Ned – what do you think the word “programmed” entails, but an inherent “to“?

    Programming is done for a reason and that reason supplies your criticalto“.

    It really does not get simpler than that.

  28. “what I don’t fully understand is many continue to believe that a programmed computer and/or a programmed CRM are patent eligible subject matter regardless that they do not otherwise pass the MOT.”

    Let’s start with the language of the statute: “any new and useful process, MACHINE, manufacture, or composition of matter, or any new and useful IMPROVEMENT THEREOF.” A programmed computer is an “improvement” of the non-programmed computer. Pretty f-n simple.

    Also, regarding Gottschalk v. Benson, the question addressed is whether the method described and claimed is a “process” within the meaning of the Patent Act. Put another way, it wasn’t a “machine” case. MOT doesn’t apply to machines — if it is a machine, it automatically passes the test. Again, pretty f-n simple.

    For someone who suggests that people read “Douglas’s opinion at the Supreme Court,” you need to take your own advice.

    As for the utility requirement, that is one of the easiest requirements to overcome.

  29. Guys, what I don’t fully understand is many continue to believe that a programmed computer and/or a programmed CRM are patent eligible subject matter regardless that they do not otherwise pass the MOT. That issue was the issue on appeal in Benson, and the Benson claims were found not patent eligible. The Benson court, while not fully accepting the MOT as the exclusive test, did say that it was an important clue.

    Rich, in Benson expressly stated that programmed computers were machines within 101 “without” a requirement of a specific use. He was reversed.

    For all the sturm and drang put out by the defenders of an obviously lost cause, Alappat simply cannot overrule Gottschalk v. Benson even if it wanted to.

    I think the point of Alappat was whether the claim was claimable as a machine despite the fact that the claimed machine itself only produced data, data that was used for smoothing a display waveform. The dissent would have said no. The majority held yes. The critical language in the majority opinion was the word “to”. A single word. It modified “produce” as in “produce a useful, concrete and tangible result.” In other words, “to” was acceptable for a machine that only produced data, so long as the specific use disclosed was “useful, concrete and tangible.”

    Readers of Alappat who take away from it some glorious idea that that court endorsed the patent eligibility of all programmed computers without regard to whether they produced data that was useful in a concrete and tangible way are way out there on a limb. The case does not stand for that proposition at all.

    It would be good for doubters to actually read In re Benson to understand Rich’s holding in that case, and then to read once again Douglas’s opinion at the Supreme Court. It is revealing on this point.

  30. “As those app’s would be issuing as patents about around now, or would have just recently issued or still be in progress, professional judgment and integrity carried the day, and I’m sitting pretty.”

    Funny that … I know of clients CURRENTLY selling software/system app patents to extremely sophisticated buyers for millions.

    “Looks like Spam for dinner again!”
    And my clients are eating filet mignon and I’m not doing too badly myself.

    FYI — there is a difference between sloppy application writing and unpatentable subject matter. Just because you cannot overcome the sloppy application writing doesn’t mean that clients cannot obtain extremely valuable patent rights.

    As Dirty Harry once said, “[a] man’s got to know his limitaions.” For your potential client’s sake, I’m glad you knew yours.

  31. FYI the simple minded was not given what she needed to understand. So now i know he published my Patent even though it was morphed over and over before he completely buried me in that FACT! The FACTS being you can not capture back what has been published.. nor can you file a CIP that will be allowed. So now I will Bury Them!

  32. 1) Understand the fallacy of the “all structure” (non)rule.

    2) Understand even absent the ‘all structure” (non)rule, the role of inherency.

    3) Understand that the analogy is not based on “claim details’ in the first place, but rather on the concept of “underlying invention” and “perform entirely in the human mind.”

  33. The only thing I don’t understand is why would they steal just about all my Evidence… and still leave the Newest File..that had no reference to 09/630/926?
    I would say in hindsight that makes them not very smart. I believe that is just what they refer to as more Prima Fascia. And just the mention of UT sends chills down my Spine. But i don’t understand how my sanity can al all be questioned when the evidence was never there to discern from?

  34. Details Details Details! But the details are hidden. So now I know it was Published. The details I missed was how it was done.
    But how can a Pro Se’r miss what they don’t know, or can’t see.. I guess that makes me Blind before my time? TSK TSK TSK!

  35. How can that possibly be? It cannot be, so that interpretation of Alappat must be wrong.

    BS Detector just went off the charts again…

  36. It was around about 4 years ago now that I had my first consultation with a potential client regarding the possibility of drafting and prosecuting a software/system-type patent application.

    After having shredded such claims in opinion work that I had done, I politely declined, and explained to them why I didn’t believe such claims were worth the paper they were written on, and why I couldn’t professionally countenance involvement in any such thing, even if they were willing to pay.

    I’ve since turned down a number of other such requests, and have never drafted or prosecuted a software/system app.

    As those app’s would be issuing as patents about around now, or would have just recently issued or still be in progress, professional judgment and integrity carried the day, and I’m sitting pretty.

    I have received more than one call from people thanking me for having saved them money–and one call just to tell me that I was right, after a potential client went and had somebody else prosecute an app, which the client believes is now essentially worthless.

    Every dog has his day, and today is mine.

    Now if I can just leverage all that goodwill into paying projects, now that nobody is spending any money…

    Looks like Spam for dinner again!

    “Spam–A Good Conscience Product”

  37. How about B claims. Ever seen one that recites a specific arrangement of pits (or even one that was supported by a specification that includes a map of the actual arrangement of laser pits on the disc that programs the computer).

  38. “treat them as processes”

    The implications of this protocol are convoluted, unwieldy, and largely unknown–and most of all, unnecessary.

    Why throw rationality out the window along with economy?

  39. Over and over I tried to get the info on what was missing on the correction I sent in for 08,546,033. No help just constant letters telling me something must be lost, then more money.. something is missing. This went on and on, Never did the USPTO tell me what was missing. I was PRO SE LOLOLOL. again now I see that this is now where I can see it. I never got a notice that it was requiring an OA NEVER. Now I see it was a Notice of Reissue in the Official Gazette. Now what was Reissued the only embodiment that was allowed me the Jet ski Fender? Not the BLUE one I received that said I had some of what i spoke of to Tamai. Now I ask you if it was the Citings that were missing and now I know that it was… And I was PRO SE! Wasn’t that what I should have been told by Sotelo, instead of letter after letter saying there was something missing? So if I got no mail, not a hint of what it was I needed to do as a PRO SE… then now why is it out there finally for me to see? Is there a reason there? I sure would like to know. But then I was never told as a Pro Se so why would I be told now as a so called Pro Se. How can all that be done to a Pro Se? It can’t.
    Citings missing .. See how easy that is to say! Sotelo called me before to say plenty of things.. why wouldn’t he call the Pro Se”R? Because I wasn’t!

  40. 1) composition claims reciting “instructions” that are “readable” by those machines but which are structurally indistinguishable from prior art compositions,

    Completely false – factually and legally

    You’re not paying attention. We’re talking about patent claims, specifically claims to computer-readable “discs” do not recite any structural features that distinguish the claimed composition from prior art compositions.

    Please go troll some local news website where you will encounter people with capacities for understanding that are similar to your own.

  41. But Alappat did have specific structure, a pair of ALUs and a barrel shifter, IIRC, and it was described.

    Benson also had specific structure, a shifter. That was enough structure for claim 8 according to Rich, writing for the court. Regarding claim 13, it was directed merely to a program. But, there Rich wrote that a programmed computer was a machine and otherwise statutory:

    “Realistically, the process of claim 13 has no practical use other than the more effective operation and utilization of a machine known as a digital computer. It seems beyond question that the machines-the computers-are in the technological field, are a part of one of our best-known technologies, and are in the “useful arts” rather than the “liberal arts.” as are all other types of “business machines,” regardless of the uses to which their users may put them.”

    link to digital-law-online.info

    Benson was overruled by the Supreme Court. The Supreme Court held both Benson claims invalid under 101 because the claimed programmed computer did nothing more than calculate numbers.

    Now are we to understand the very proposition of law put forth by Rich in In re Benson, and which was reversed by the Supreme Court, is now good law again? How can that possibly be? It cannot be, so that interpretation of Alappat must be wrong.

    Let’s look further for clues as to why the claims in Alappat passed 101 muster.

    Alappat also held that the claimed rasterizer did something useful, concrete and tangible. That new use is what made the claim patentable subject matter. Even though that test has been overruled in Bilski, it remains somewhat obvious that Alappat’s claims, treated as a process, did otherwise pass the MOT.

    The bottom line is this: a programmed computer by itself is not 101 eligible. A programmed computer must do something patent eligible as well in order to be patentable subject matter.

  42. I’m objecting to the drawings in a case as we speak, along with other substantive rejections. We’ll see what he comes back with.

  43. 1) composition claims reciting “instructions” that are “readable” by those machines but which are structurally indistinguishable from prior art compositions,

    Completely false – factually and legally. If factually indistingushable, a blank disc would have the same configuring effect as a disc with a program. Legally, well, we all know the correct legal stand still exists, don’t we?

  44. Really? Little electrons can be moved from one end of a gate entirely in the human mind?”

    See, ya tard – have at it.

  45. Paul,

    Making a statement assuming your own conclusions is not very effective. Merely saying that Judge Linn thought the cited case law did not amount to much does not validate the ignoring of the case law. You merely saying that you think Judge Linn was right in doing so is rather meaningless and also does not validate the ignoring of case law. You do not get to simply ignore that which you do not like.

    Further, your statement of “any judge will seek to curtail bad patentsalso applies to Judge Newman, unless sub silentio you wish to disparage that judge at the expense of your preferred judge – and do so without any clear basis for doing so.

    Lastly, I care not one iota whether your concern is drafting for “World requirements [and] not just US requirements.” “We” are not dealing with “World” law. “We” are dealing with US law. “We” are decidedly not less concerned with the legal threshold in any one country – and quite the contrary, that legal threshold is the driving concern on this issue – the only one of legal import that matters in this decision.

  46. Smells knows something is happening here but he just don’t know what it is.

    Nobody wants to prevent new machines for computing from being invented or prevented. What concerns me and others are (1) composition claims reciting “instructions” that are “readable” by those machines but which are structurally indistinguishable from prior art compositions, and (2) method claims that are essentially mental steps rendered patent eligible merely by the generic recitation of the use of the machine in the method.

    Just get rid of this crxp wholesale and start applying 103 rigorously and diligently to the remainder and a lot of other problems will disappear. And that will be the only result. There will be absolutely zero effect on the progress in the “software arts” or Internet commerce or social media, etc, you can bet your life on that.

  47. An invention will be un patentable if it fail’s at one or more of the following steps:

    101

    102

    103

    112

    You are not allowed to mix or skip any of the above. And 101 includes a process as a separate and distinct category from manufacture, and composition.

    Any attempt to absorb processes as a sub category of manufacture or composition was denied by the Supreme Court in Bilski. And thats a fact you Mooney and rest of the anti patent crowd can continue to cry about if you like. But it won’t change a thing.

  48. “Everything an abacus does can be done entirely in the human mind. ”

    Really? Little wooden balls can be moved from one end of a small dowel entirely in the human mind?

    See, ya tard, you focus entirely on “function”. The rest of us focus entirely on “structure” as is good and natural.

  49. ” AI, I think you try too hard to deny that Bilski was, in fact, a business method. ”

    Umm no. I simply read what the Court says and accept it as law. The Court said Bilski’s invention is a process so it’s a process. You on the other hand try to hard to read into the Courts words, opinions they did not express. Or project your own personal beliefs for what you wish the law should be. That’s why you always lose these debates on the blog, and in the Court room when the opinions come down.

  50. I don’t envy the Fed. Cir. judges. Spending all this time & energy trying to figure out how to best trash such ridiculous patents would have made me very depressed.

  51. No, it was not. Everything an abacus does can be done entirely in the human mind. The underlying invention of an abacus is merely the ability to do math. That is ALL an abacus can do.

    Take that and apply the Kantian exercise and tell me what you are left with.

  52. an improved machine

    that should be all the need be said.

    Ned – you need to accept the fact that programming does change the structure of the machine. It provides both a new use and a new structure. This is a holding in Alappat, even if you try to classify it as dicta.

  53. could be described

    could be described

    could be described

    READING people – try it sometime.

  54. a claim to a real machine

    What is “a real machine?” Is a computer “a real machine?” Is an abacus “a real machine?”

    Anytime you start changing what is claimed insearch of “the underlying invention” you run the risk of gatting away from any “real machine.”

    I only hope you can see this very obvious problem with the logic in play. If you are willing to take that step with machines, why not with other building block items? The answer lies in the fact that it only a philosophical choice to outlaw computer realted inventions and not one based in facts or law.

  55. a specific disk with a specific and exact structure of pits/grooves/markings/magnetic residuals

    Right, pits/grooves/markings/magnetic residuals markings that are “specific and exact” but somehow never, ever described.

  56. The “new” abacus probelm was never resolved on the other thread.

    Yes, it was actually.

  57. I’m wondering about the Newman point, that Applicant was deprived of two instances.

    Suppose the Board had found the claim obvious over Adam ‘001 and that the CAFC re-construed the claim wider and so found that Adam deprived it even of novelty. Anything wrong with that?

    Now take a step back towards the present case. Board construes the claim, raises no 112 objection but finds Adam deprives the claim of novelty. CAFC re-construes the claim and finds it indefinite, finds itself unable to proceed to novelty determinations. End of story.

    So why does Newman think the Appellant was treated in any way unfairly? Must the court instead send the case back down with a decision that the claim is indefinite, and that novelty should be re-considered in the light of that finding?

  58. It is amazing just how ludicrous the argument is that the invention is in the particular arrangement of pits on a disk. Tell that to any kindergarten student and you will get a big laugh.

  59. Smells, but information processing is all about calculating numbers with an improved machine. Ditto BM, where method is conducted using machines. The inventions are in the methods, not in the machines.

    When one is claiming a real machine, it has new structure, not a new use.

  60. OK, then. Let’s start with

    1) treat them as processes; and
    2) make them pass the MOT.

    If they do not, then the burden shifts to the applicant/patentee to demonstrate that the claims are necessarily limited to a particular machine.

    The MOT remains a valid test according all nine justices. It is a burden shifter.

  61. Remember Moonley, b4 you get 2 smug, the only difference between a claim directed to the middle of a Twix bar and the middle of a DNA strand is the TWIX bar is man-made (i.e., patentable subject matter).

  62. Your right – it is not compicated, but you are wrong because you seek (no surprise) to confuse the issue and change the subject to an invention of a disk. But it is not just “a” disk at all – it is a specific disk with a specific and exact structure of pits/grooves/markings/magnetic residuals etc. That particualr disk would be structurally different (and claimed so) than other disks.

    The cannard of “structure” needs to be retired.

    Back to the tower with you!

  63. a music CD could be described in exacting and painstakiing physical structure detail, but would still not be a patent eligible item.

    Sure it could – if what you invented was the disk itself. You’d hardly need to recite any structure at all, probably. Certainly nothing nearly as specific as what particular information was stored on it.

    It’s simply not patent-eligible as an end-around for claiming the music you recorded on one particular prior art CD.

    This isn’t complicated at all.

  64. But I do like the Cybersource take — if it can be done entirely by humans, it is not patentable subject matter.

    The “new” abacus probelm was never resolved on the other thread.

    What can be done with an abacus that cannot be done entirely by humans? Now take the Kantian view and extend this logic to any art unit using any tools.

    The ‘structure’ argument is a fallacy. As was explained in a prior post (the corrupted one?), a music CD could be described in exacting and painstakiing physical structure detail, but would still not be a patent eligible item. Even given this failure, there simply is no hard and fast law that requires a purely structural approach. Likewise the whole “the real invention is not in the programming, but in the processes” is circular and self-serving logic, easily refuted by postulating that without the programming, there would be no processes. All this is is assuming the point that you want to hold. A lot of mental masturbation is going on here.

  65. Malcolm, it’s all very well talking about vomit and asserting that any competent Exr can refuse using any or all of 101, 102, 103 or 112. The problem remains, how to terminate such stuff quickly and cleanly, without the inventor resenting it, when the prosecuting attorney is zealous and his client is paying his fees.

    So far, I haven’t seen anything more effective than the EPO’s obviousness tool.

    I like the way the EPO handles obviousness. The problem with the USPTO, though, is not the legal standard but the fact that the employees at the office aren’t even close to being on the same page. If everyone agrees on how to handle this xxxx, then it does eventually go away because applicants realize they aren’t going to get anywhere with it. But if there’s 30-50% of Examiners out there who either lack the intellectual capacity to write the correct argument down or who simply refuse to do so (e.g., because the claim has a lot of words or because they are themselves Pxtxnt Txxbxggers), then we aren’t going to get anywhere, ever.

    The steady stream of sxxxt flowing from the USPTO is all the proof anyone needs that Kappos is a miserable failure as a PTO director.

  66. And, every step [of any patent EVER] could be performed by a human using [conventional building blocks of whatever art unit is involved] available.

    Commericiality is a red herring.

    All this is is anti-patent nonsense. Bio is the obvious next target for carving subject matter out of the patent law coverage.

  67. Ned, no, that “can be done entirely by humans” isn’t workable, and is an overly-simplistic concept that is not up to the task required of it.

    Furthermore, it’s unnecessary, and is an unfortunate result of the CAFC panicking as they grope around in the dark room of patent law.

  68. IBP, for a long time now, I have looked at the problem from a numbers in numbers out point of view. Information processing is just that. But I do like the Cybersource take — if it can be done entirely by humans, it is not patentable subject matter. This would include numbers in and numbers out, but a lot more as well. It would help define what is “insignificant” extra solution activity by giving us good criteria for its determination.

    Bilski, both lower and upper courts, decisively turned the tide in this long struggle to patent software. The four Supreme Court justices who signed on to Kennedy’s B-2 and C-2 are holdouts, as well as are Rader and Newman. But they are definitely in the minority now.

    Regarding proof of infringement, if a computer performs the claimed functions of the claim, it must necessarily have the program to do so. So, this whole struggle over 112, p.6, and p.2 is quite funny from the big picture point of view, as the real invention is not in the programming, but in the processes.

    We should, I suggest, simply drop the formalities and state that all programmed computer claims, all B-claims, and all system claims involving programmed computers should be construed as processes unless the applicant/patentee can demonstrate that the claims are directed to specific structure.

  69. Malcolm, it’s all very well talking about vomit and asserting that any competent Exr can refuse using any or all of 101, 102, 103 or 112. The problem remains, how to terminate such stuff quickly and cleanly, without the inventor resenting it, when the prosecuting attorney is zealous and his client is paying his fees.

    So far, I haven’t seen anything more effective than the EPO’s obviousness tool.

    And there is solid basis already, to introduce this tool into the USPTO. I refer to the utterances at CAFC level (was it the CAFC’S predecessor, or was it SCOTUS) that assessing any sort of obviousness other than technological obviousness (like, what new musical composition is “obvious”) is a task one can’t even begin to address. Everybody can see the logic in that.

    If you can’t begin to address obviousness of some particular claimed subject matter, because it is not a contribution to science and “useful arts”, then ergo that subject matter is not susceptible of patent protection. As AI would now say “Bangs Gavel. Case closed.”

    Mind you, you do obviousness of design patents. I see that as a problem. I don’t understand that kind of obviousness either. Hey ho.

  70. Mere accretion of subject-matter old in the art.

    Invalid as obvious under 103.

    Insubstantial utility.

    Patent-ineligible subject-matter under 101.

    Also potential incredible utility, unless substantial scientific research has been performed on “revenue” and “customer satisfaction”.

    Also potential non-specific utility, unless “customer satisfaction” is VERY well defined and repeatable.

  71. Note that architecture and logic can always be discussed in these cases because they are always disclosed either explicitly or by necessary implication in software/system claims.

  72. 8,010,429

    Here’s a lot of words that boil down to very little: a powerful computer brain that uses customer and merchant data to …. calculate a transaction fee! Awesome. Who could have imagined this was filed in November 2008, merely one year after the invention of computers and the creation of the world’s first rudimentary bank?

    A non-transitory computer-readable medium having computer-executable instructions stored thereon that, if executed by a computer for calculating merchant transaction fees, cause the computer to perform operations comprising: receiving, by the computer and from a first sender, a summary of charges (SOC), wherein the first sender comprises at least one of a merchant, a payment processor and an acquiring bank; receiving, by the computer and from a second sender, a plurality of records of charges (ROCs) comprising a first ROC, wherein each ROC in the plurality of ROCs comprises ROC data from a financial transaction, wherein the second sender comprises at least one of a merchant, a payment processor and an acquiring bank, and wherein the first ROC is associated with the SOC and includes first ROC data, wherein the first ROC data comprises a transaction authorization code, a transaction account identifier (TXA-ID), a transaction date and a transaction amount; retrieving, by the computer and from a database, custom transaction fee rules associated with a merchant profile associated with the merchant; determining, by the computer and based upon the SOC and the custom transaction fee rules, that the SOC provides insufficient detail to properly determine a merchant transaction fee based on the SOC and, in response to the determining that the SOC provides insufficient detail, determining second data by at least one of: acquiring, by the computer, a customer ID from a transaction account database using the TXA-ID; correlating, by the computer, the customer ID with at least one of a customer profile, a customer type, a customer transaction history, and a customer location to determine a customer factor, wherein the second data comprises the customer factor; acquiring, by the computer, the merchant profile associated with the merchant ID from a merchant database; correlating, by the computer, the merchant profile with at least one of a merchant type, a merchant transaction history and a merchant location, to determine a merchant factor, wherein the second data comprises the merchant factor; acquiring, by the computer, product data associated with the product ID from a product database; correlating, by the computer, the product data with at least one of a product type, a product transaction history, a product-customer demographic and a product price, to determine a product factor, wherein the second data comprises the product factor; in response to the determining the product factor, dynamically calculating, by the computer, the merchant transaction fee according to the custom transaction fee rules using first ROC data, the SOC and second data, wherein the second data is associated with at least one of the merchant, a consumer, a location, a product, the financial transaction, historical data, current data, projected data, aggregate data, random data, trend data, economic data and third party data.

    You got to love the utility mentioned in the Abstract: The system … enable[s] flexible, innovative and dynamic pricing capabilities that increase revenue and increase customer satisfaction.

    LOLOLOLOLOL!!!!

  73. Yes, I know that I’m assuming that they are all obvious–but I have done enough opinion work to understand what is in these patents, and the quality thereof.

    I think it’s a good assumption.

    The next step in this process should be the invalidation of a software/system claim on 103 grounds (if by some miracle one can be found that survives 112–or better yet, find one and just ignore any 112 issues), in a very general sense, discussing the essential nature of von Neumann architecture and Boolean logic. That should be the final nail in the coffin.

  74. 6 has often raised the point that the PTO requires examiners to address prior art in the FAOM if the claims are indefinite. I wonder if this case will permit the examiner to simply reject under 112, p. 2 and leave it at that.

  75. Max, “Judge Newman helpfully quotes in her last para a case called Atmel v Info Storage, for the proposition that 112/6 should not be interpreted as requiring “disclosure of what everyone in the field knows”.”

    This best illustrates the very confused nature of Fed. Cir. jurisprudence on 112, p. 6. MPF elements can describe old elements. They can describe new. Unless that is kept in mind, the case she cites makes no sense if the claim element is the point of novelty. If it is, one needs full and detailed disclosure of the “invention” being claimed. The problem is both under 112, p. 2 and under 112, p. 1.

  76. There are really 2 main issues raised in this case:

    1) does the “established protocol” of allowing indirect description of physical structure to be achieved by direct description of the action of that physical structure in response to a particular stimulus in a particular environment, optimally further stated policy objectives?

    Newman obviously thinks it is a good “protocol”, and that it ultimately serves “To promote the Progress of Science and useful Arts”. Some agree and some disagree, for many reasons, all related to the promotion of the progress from their particular perspective.

    2) is the protocol of “indirect description” more trouble than it is worth?

    When description of the physical is moved from the actual to the symbolic realm, analyses of secondary concepts relying on that symbolic description–concepts like infringement, claim construction, patentability, and patent-eligibility–are similarly shifted to the symbolic realm, as happened in Cybersource.

    This raises many questions and uncertainty for the future, such as the following: Can a process be treated as an article, composition, or a manufacture for infringement purposes? After all, any process that is performed is performed ultimately in the physical world, arguably even thought.

    There is an underlying physical structure that corresponds to the performance of any process–why not characterize the process in terms of the structure for infringement purposes? It would be allowed, according to the current “protocol”.

    Now, a process could be translated to structure, and could infringe a structure patent characterized as a process. All well within the accepted “protocol”.

    You can see what I’m getting at. The bigger question is, is the “protocol” the best way to achieve the policy objective, especially since there are potentially other ways of achieving it under different regimes such as trade secret, copyright, or laissez-faire?

    MPF clauses are for claiming economy, NOT for disclosure economy. As we see in this case, 112 insufficiency can be found–but the point is, where does that get us? In furtherance of the policy? EVEN IF “software” and “system” claims CAN be construed to satisfy 112, and EVEN IF the resulting construction DOES satisfy 101, these claims will all be obvious, so like other posters (Mooney) (ugh) have said, it comes down to a matter of administrative economy.

    The policy objectives are not served by an uneconomic system. Right now, software/system claims are a part of that system, much like a tumor is a part of an otherwise healthy tissue or organism. They are taking resources and energy away from the system–actually OUT of the system, as since they are all obvious, the patents are invalid and not a proper part of the system.

    They are parasitic, and should be excised just like a tumor.

    The trick is to perform the operation while minimizing damage to healthy tissue, and this is what the CAFC is attempting to do in its fumbling sort of way.

    To its credit, the CAFC hasn’t just come out with a categorical software exception, which would make matters even worse than they now are. A real solution is difficult, but they are trying, and it is a delicate operation.

    Of course, I’d expect them to have more skill, but with this decision, the process is not a total failure.

  77. 8,010,796

    This one is pretty funny. Sure, putting a digital signature into a file is older than the hills. B-b-b-ut this one uses a POWERFUL COMPUTER BRAIN to check your password first!!!

    6. A non-transitory computer-readable medium having stored thereon instructions that, when executed by a computer, causing the computer to perform a method for digitally signing an electronic document comprising: generating the electronic document to be signed, the electronic document having a signature area for an authorized digital signature; notifying an authorized signer to sign the electronic document by sending a short message or an email after generating the electronic document; receiving an identification and a password input by a user, and validating if the user is the authorized signer for the electronic document according to a digital certificate of the authorized signer stored in a database; obtaining an image including a digital signature of the authorized signer from the database; and resizing the image corresponding to a size of the signature area and inserting the resized image into the signature area of the electronic document upon the condition that the user is the authorized signer.

  78. Another week, another 105 patents granted reciting the term “computer-readable medium” in the claims.

    Let’s look at the “winners”, shall we?

    RE42,665

    This is a classic example of a total p.o.s that the USPTO appears unable to deal with. You know how since pretty much forever a device “setting” can be adjusted so that a particular program or piece of information displays at a certain time? Older than the fxxcking hills. So this “invention” is basically just a rehash except (sit down folks — this will blow your mind) it allows you to determine when a “home page” of your choice appears. CAN YOU BELIEVE IT? I never knew that such things were possible with home pages!!!!!!!!!!!!!!!!!!!!!!!!!!!! OMIGODOMIGODIMOGD!!!!!!

    To date, there has been no demonstration of any device, method, or product that enables more options with respect to configuring a starting web page. There are no provisions for specifying or scheduling a starting page based on the current location or time of the request or for scheduling the access of multiple starting pages at the same time. For instance, there are no options for specifying between a “workpage” or “schoolpage”, etc. depending on the current time instead of accessing the same “homepage”.

    So how, pray tell, is this technology miracle accomplished? Here’s the answser:

    An article of manufacturing including a non-transitory computer-readable medium having instructions stored thereon that cause a computing device to perform operations comprising: generating a request to automatically select and access at least one homepage in response to launching a client program having homepage selection information; retrieving the homepage selection information from the client program and a current time of the request, the homepage selection information including at least one resource identifier corresponding to at least one of a time or time range; and selecting and accessing the at least one homepage using the at least one resource identifier in response to determining that the current time of the request corresponds to the at least one of a time or time range corresponding to the at least one resource identifier

    [insert sound of vomit hitting bottom of trash can]

  79. M Mooney refers us to the Wikipedia entry for “reverse logistics means” from which I gather that reverse logistics is something that everybody “in the field” knew already when this “invention” was made.

    The underlying concepts are nearly as old as human commerce. That’s how sxxxty this p.o.s. application is. It could easily be invalidated under 102, 103, 112 or even 101.

    Take your pick. The important point is that the USPTO destroys every one of these worthless applications quickly, without wasted verbiage. Better still, they should sanction filers who habitually present such crxp.

  80. @The Company

    UK and European practitioners have to draft for World requirements not just US requirements. Hence we are less concerned with the legal threshold in any one country than with having a good in-depth disclosure which will make a favorable impression on examiners, will facilitate grant, and which provides depth to the disclosure when (as inevitably happens) a fall-back position is needed.

    I have not looked at the patent but have looked at the Newman dissent which quotes a number of passages. Apparently Judge Linn thought they did not amount to much, and probably he is right.

    There is no evidence that Richard Linn is looking to curtail patents in general or software patents in particular. But any judge will seek to curtail bad patents.

    On Judge Dyk I have no views.

  81. Paul your post is in opposition to the post above (edited):

    and on the other side you’ve got Linn and Dyk who are looking to curtail patents, in general, and get rid of “software patents,” in particular.

    Read Linn and Dyk’s concurrence in Bilski.
    Read Linn & Dyk in Pefect Web v. InfoUSA
    Read Dyk in Cybersource
    Read Dyk in In re Lovin
    Read Dyk and Linn in In re Jung
    Read Dyk’s dissent in Genetics Institute v. Novartis

    Judicial activism is still judicial activism and any “credibility” impact will be (and should be) set aside. Appelate judges should not be invoking their personal philosophies and subverting established law (in either content or procedure).

    As to the host of “real questions,” your desire for “practical” disclosure misunderstands the actual ‘legal” requirements of the level of disclosure required. Review the cases cited by Newman to gain a proper understanding.

  82. The CAFC has been slapped down before for taking “legal shortcuts.” (injunctions, anyone?)

    This should be no different – Respect for the Law demands no less.

  83. Not sure I agree with Paul Cole’s “take home” message.

    Judge Newman helpfully quotes in her last para a case called Atmel v Info Storage, for the proposition that 112/6 should not be interpreted as requiring “disclosure of what everyone in the field knows”. M Mooney refers us to the Wikipedia entry for “reverse logistics means” from which I gather that reverse logistics is something that everybody “in the field” knew already when this “invention” was made.

    So, the “real” reason for lack of validity is obviousness. Not want of novelty, not indefiniteness, but obviousness.

    But, these days, as the USPTO is all too painfully aware, obviousness is pretty hopeless as a quick and effective filtering tool in ex Parte prosecution. To attack the backlog then, shouldn’t some legal tool be forged, to enable the USPTO to filter out crxp subject matter under 35 USC 103, robustly and quickly, but fairly?

  84. Like you Malcolm, I disagree with Judge Newman’s dissenting view in Abbott v. Sandoz. But you and I definitely part company on our respective views of Judge Newman otherwise. For reasons stated above, the majority’s ruling is “problematic” in Aoyama. This also isn’t the first time the majority should have heeded Newman’s views. Starting with Honeywell International v. Hamilton Sustrand where the majority wrote paragraph 4 out of 35 USC 112, Newman has been the “conscience” of the Federal Circuit that the patent statutes (and procedural rules) should be followed, not ignored when involving inconvenient “truths.” That’s exactly what happened here in Aoyama

  85. She did, AAA JJ, and once more exposes the duplicitous and “problematic” ruling by the majority. As Newman rightly points out, how can the majority rule against the patentee on an issue (“indefiniteness under 35 USC 112, 2nd paragraph) that wasn’t one of the issues on appeal, and for which the patentee had no opportunity to respond to? And Newman’s holding the majority’s “feet to the fire” on this “problematic” ruling also isn’t exalting form over substance, but making sure the form is followed so the substance doesn’t get lost (as happened with the majority). Newman get’s “two thumbs up” from me (again).

  86. Like all these things, it is not the existence of a flowchart but the content that matters. Not a matter of form, but substance. Richard Linn is astute enough to know the difference.

  87. That’s odd. When I was at MIT all the EE freshmen had to take a course called “6.031 Structure and Interpretation of Computer Programs”. There were a lot of flow charts in the text book. I guess that must have been all a waste of time.

  88. You misread the message and then defend your mistake by calling the poster “smarmy” and “uninformed?”

    Leo, put the shovel down…

  89. Procedures resulting in no product of the useful arts have been and justifiably remain unpatentable. Adding the lack of the requirement for the use of any machine and the fact that nothing is manufactured only reinforces the fact that creative claiming on the basis of nothing is not going to be a long-lived scam on the patent system.

    Software is still the ordinary use of a machine for its intended purpose and non-transformative no matter how many and what type of bits are written onto a disk. So-called “business methods” are dead, especially as a means for a patentee to “transform” money in someone else’s pockets into money in his. Cry about it all if you like, but it’s a done deal.

  90. And you might try reading the other half-dozen comments I have made on this particular topic, where I actually engage the details of the opinion instead of relying on hyperbole from a charlatan or on smarmy, uninformed comments like “you might try reading the opinion.”

  91. AI, I think you try too hard to deny that Bilski was, in fact, a business method.  If you yourself do not think that Bilski was a business method, and that a practical application of mathematics to "non abstract" implementations useful in business, then we are on the same page, not off it.  We agree.

  92. The take-home message from this decision is that mere arm-waving is not enough and a detailed description is needed. In particular it is helpful to start from a real working embodiment and then decide the level of generality that is appropriate. But more than a vague hopeful flowchart, I think.

    The real question is whether the patent provides the skilled person with a real discosure of what he should do that he or she can then go ahead and implement straightforwardly, or whether what is disclosed is in reality an open-ended research project whithout any helpful starting point. It seems that the case in issue was closer to the research project category. How do you really implement this invention? What operating system? Do you need Internet connections, and if so of what type and how secure? What basic programs do you use as starting points for implementing the flowchart, and how do you adapt them? Just because it is a matter of patenting, that does not mean that all matters of issue to practical computer people should be omitted from the specification.

    Readers should be aware that Richard Linn practised as a patent attorney for many years and personally has extensive drafting and prosecution experience before the USPTO. His experience, I believe, is in the mechanical and electrical arts whereas Judge Newman (who is also greatly respected) was a chemist. Judge Linn is perhaps the last person who would be expected to deny protection to a meritorious invention that had been properly disclosed, and if he says that the claimed subject matter is not patentable then he carries a lot of credibility.

  93. Chambers you have told this to us several times now, and as yet I see no response from anybody.

    Can it really be, that the decisive issue, the one on which the whole case turns, is simply the discrepancy between the word (shipping) used in the specification and the different word (transfer) that was used in the claims to refer to the same thing?

    If that were so, is this not going to be a shocking case for each USA-based patent drafter, whenever they eventually realise it?

  94. Well you really have to laugh, don’t you? Because, otherwise, you might have to cry.

    And laughter, Punch, is as you know much better for your health than crying.

    There was was no sarcasm in my comment above. I meant what I wrote. And that’s more good news for your health: for you can now laugh your head off. That would be fine with me.

    Please don’t “leave me alone” again. I love your sarcasm.

  95. This case does NOT dismiss flow charts as providing sufficient structure under 112 para. 6. This case simply says that the specification recites “SHIPPING data”, the claims recite “TRANSFER data”, and the generation of SHIPPING data does not support reverse logisitic means for generating TRANSFER data. The drafter should have written his specification with his/her claims in mind or vice versa.

  96. This case does NOT hold that flowcharts cannot provide structural support under 112 para. 6. This case should teach practioners to correlate their claim language and specification better, which, of course, is an absolute necessity for any patents filed in Europe. The claims recite “TRANSFER data”. The specification recites “SHIPPING data”. The FC simply found that “SHIPPING data” does not provide adequate support for “TRANSFER data”.

  97. I believe the take-away is that your specification language should track your claim language must better, especially for 112 para. 6. The flowchart refers to “SHIPPING DATA”. The claims refer to “TRANSFER DATA”. The Federal Circuit simply found that “SHIPPING DATA” does not support “TRANSFER DATA”. The court did not hold that flow charts cannot provide structural support under 112 para. 6.

  98. This case did NOT generally dismiss flowcharts as supporting structure for 35 USC 112 para. 6. The claims recite “means for generating TRANSFER DATA.” Figure 8 discloses “SHIPPING DATA”. The FC simply found that “SHIPPING DATA” does not provide support 112 para. 6 support for “TRANSFER DATA”.

    The moral of this case should be for means plus function claims, make sure the functions identified in your claims also appear in the specification. Of course, if your practice includes European patents, you know that the EPO and other European countries require quite literal support anyway.

  99. “But you will also note that the failure to pass the MOT was cited as a reason, if not the exclusive reason, why the claims in Benson failed 101 muster.”

    Ned can you back that up with a cite of a direct quote from Benson? Or shall we just mark you down as a liar like Easy boy called you out to be below?

  100. So is there any way which the inventors could have used to disclose their invention which would been upheld by the FedCir???

  101. You might try actually reading the decision itself…

    Most people form their opinions after doing such things…

    Try it – you might like it.

  102. For the practitioner, what is the take-away from this case?

    Provide more detailed flowcharts that show the steps of an algorithm when means-plus-function claims are used?

    Not use means-plus-function in a software case?

  103. Except they are not. And Bilski emphatically denies your “if not the exclusive reason” rationale.

    But if you say the lie often enough you will believe it…

  104. Sorry about that. Since the message you provided is obviously someone’s opinion, unsupported (at least in the excerpt you provide) by any reasoning at all, I read it as a citation to authority, since how else would we critically evaluate the message?

    Oh, now I see.

  105. “Write the method out for me …”

    Don’t do requests …. particularly for those who do not reciprocate.

  106. Me: “‘Do A after B’ is not a decision tree.”

    NBS Sure it is. The other part is if not B then not A.

    Write the method out for me in claim form, reciting the steps. Then tell me the minimum number of steps I need to carry out in order to infringe the claim.

  107. In re Lowry:

    In Lowry’s invention, the stored data adopt no physical “structure” per se. Rather, the stored data exist as a collection of bits having information about relationships between the ADOs. Yet this is the essence of electronic structure.

    Got that? There is no “physical” structure per se, but … that’s the essence of “electronic” stucture … which is like invisible physical structure, or something.

    Then Rader cites Bernhart (an equally illogical case):

    we say that if a <32 USPQ2d 1035> machine is programmed in a certain new and unobvious way, it is physically different from the machine without that program; its memory elements are differently arranged.

    Note the weirdness: the machine is “physically different” only if it’s programmed in a “non-obvious way.”

    Rader again:

    More than mere abstraction, the data structures are specific electrical or magnetic structural elements in a memory.

    Except there is nothing “specific” about the “electrical” or “magnetic” “elements” in Lowry’s claim — they are described in the most vague, general and indirect possible way.

    Lowry is a farce.

  108. LB Nobody (with any real authority) says that algorithm is a structure. Instead, a computer programmed to carry out a particular algorithm has a structure. That’s really not that remarkable a proposition

    The question is: does it have a sufficiently definite structure for 112 purposes, i.e., is the description of the structure sufficiently definite to distinguish its structure from prior art structures?

  109. FYI … In case you’ve forgotten, Stevens is out.

    Who is going to pick up that torch?

  110. If the Court construed Bilski’s invention as being nothing more than the balancing of risk, and balancing of risk requires nothing more than mental processes, and when reduced to practice by Bilski’s specification is nothing more than mathematical formulae, then its a Court created judicial exception and nothing more than that.

    Processes are still patent eligible.

    Processes that specifically improve ways to conduct business are still patent eligible. ( so called business methods)

    Software is is still patent eligible.

    Glad we could finally clear this up!

  111. Listen, AI, I will agree with you that a programmed computer used to perform a task that is within the MOT was deemed patent-eligible in Diehr. But you will also note that the failure to pass the MOT was cited as a reason, if not the exclusive reason, why the claims in Benson failed 101 muster.

    So, there is nothing at all inconsistent between the two cases. Rather they are entirely consistent. Entirely.

  112. That’s all good and well Leo, but what structure specifically does it have? The whole point to 112 6th was to allow people to use functional terms by putting the specific structure in the spec. Literally, that was the entire point. Now apparently that is being disregarded entirely.

    “That’s really not that remarkable a proposition, but I suppose stating the actual state of the law is a lot less fun than mischaracterizing it as “algorithms are structure” or “methods are structure.””

    Did you read Newman’s dissent? Hilariously full of algorithm structures and structure algorithms.

  113. All 9 justices endorsed the MOT for processes, but not as an exclusive test. But Breyer did note that it would be unlikely that any process that failed the MOT would be patent-eligible.

  114. Discarded, but the Diehr dissent did note that the CCPA discarded them and that the doctrines were rooted in Supreme Court cases.  

    Now, please explain to me, and explain to me slowly so I can understand, just where did the CCPA obtain the legal authority to overturn the Supreme Court?

  115. Ned, your secret decoder ring talking to you in your sleep again? Software has not been ruled as patent ineligible. And pullleeeez don’t mention Benson without looking at it through the lens of Diehr

  116. Well yes Aoyama does argue that correctly, the ruling did contradict precedent. It’s a shame that the court dodged addressing that contradicting precedent rather than jumping on over to the 112 2nd bandwagon.

    Right there in your cited passage (one of a couple relevant ones in the decision) however they were simply noting that Aoyama was correct that precedent had been contradicted, not that they were particularly pleased with the precedent.

    But you’re right, lawl schools do teach that nonsense about citing without disapproval etc to be a citation with approval from time to time. Here it’s actually kind of striking that they go through such lengths not to lavish praise upon WMS.

  117. AI, I think we discussed this briefly in connection with Bilski.  

    I will frame the question this way:  

    The Bilski claims were claimed in a statutory class:  as a process.

    The Bilksi claims had a new and specific utility:  they balanced risk in a specific way using a specific algorithm that was new.

    Now, if this specific utility was not automatically, per se, excluded from being a utility within the ambit of 101, then what was possibly wrong with the Bilski claims?

    I agree with you that they should have been patentable if balancing risk was the kind of utiltiy that fell within the ambit of section 101.
     So, the only possible logical conclusion, the only one that can be made from the holding of the unanimous court that the Bilski claims were not patent-eligible, is that a "balancing-of -risk" utility is not, repeat, NOT, within the ambit of section 101.

    There is no other possible logical conclusion.

    If you can think of one, I am all ears.

  118. Leo – you misread the message for the messenger – the authority is Newman – the CAFC judge who “gets it.”

  119. “Judge Newman thought the holding was unfair to “innovators” who were unable to describe what they had invented. Think about that.”

    Hmmm what? A Judge that is on the side on Actual Inventors that Actually invent and innovate? I think we need more judges like that!

  120. So your authority to counter the “yahoos” is a guy who appears to have made a career out of the unauthorized practice of law? Surely we can do better than that.

  121. The court is bringing the discarded doctrines back from the dead in cases such as Cybersource and Aoyama.

    Yes, but arguably doing so illegally – these doctrines are discussed as being discarded (in all places) in the dissent of Diehr – and Diehr is still binding law, making the doctrines still discarded.

    This is a case of the pendulum swinging back way way too far in excess.

    Expect this overcorrection to be corrected itself.

  122. It may be worthy to note that Kennedy, Alito, Roberts, Thomas, Rader and Newman are all Republicans. It does appear that there is a political element to this story.

    Stevens is as well, but that is another story.

  123. “I assume you also think a programmed computer that only produces “transfer data”, or a warehouse system that uses the transfer data to produce “shipping data” defines a patent-eligible invention?”

    Well, I don’t have Neds Secret Decorder Ring. pressumably Pat Pend. So who knows what you are thinking. But, if we go by at least the CAFC Thinking which is:

    ” “[I]nventions with specific applications or improvements to technologies in the marketplace are not likely to be so abstract that they override the statutory language and framework of the Patent Act”; United States Court of Appeals for the Federal Circuit RESEARCH CORPORATION TECHNOLOGIES, INC., Plaintiff-Appellant,v. MICROSOFT CORPORATION, Defendant-Appellee. 2010-103 ”

    then….we have to at least asked the question..

    Is a a programmed computer producing and defining data an application or improvement to technologies in the marketplace ?

    The answer on the suraface seems to be yes.

  124. It ain’t over, I also find it significant that Scalia did not buy into the “Information Age” fluff from Kennedy’s opinion set out in B-2 and C-2. A 5-4 majority of the court stands solidly on the side of the MOT as the almost-exclusive test and does not share the concern expressed by Rader and Newman concerning Information Age “inventions” such as software and diagnostic method, data compression and the like. Just to refresh, this from B-2.

    Kennedy, Alito, Roberts and Thomas but not Scalia:
    “The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age—for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals. See, e.g., Brief for Business Software Alliance 24-25; Brief for Biotechnology Industry Organization et al. 14-27; Brief for Boston Patent Law Association 8-15; Brief for Houston Intellectual Property Law Association 17-22; Brief for Dolby Labs., Inc., et al. 9-10.

    In the course of applying the machine-or-transformation test to emerging technologies, courts may pose questions of such intricacy and refinement that they risk obscuring the larger object of securing patents for valuable inventions without transgressing the public domain. The dissent by Judge Rader refers to some of these difficulties. 545 F.3d, at 1015. As a result, in deciding whether previously unforeseen inventions qualify as patentable 3228*3228 “process[es],” it may not make sense to require courts to confine themselves to asking the questions posed by the machine-or-transformation test. Section 101’s terms suggest that new technologies may call for new inquiries. See Benson, supra, at 71, 93 S.Ct. 253 (to “freeze process patents to old technologies, leaving no room for the revelations of the new, onrushing technology[,] . . . is not our purpose”).”

  125. I don’t know if I’d go so far as to say “approvingly”.

    Below is what the court said about those two cases. I was taught that when a court cites a case for the state of the law, without saying that it’s wrong or trying to distinguish over it, that’s an approving citation. But maybe it’s different at your law school. And no, WMS Gaming was not a BPAI appeal.

    Moreover, when the disclosed structure is a computer programmed to carry out an algorithm, “the disclosed structure is not the general purpose computer, but rather the special purpose computer programmed to perform the disclosed algo-rithm.” WMS Gaming, 184 F.3d at 1349 (citing In re Alappat, 33 F.3d 1526, 1545 (Fed. Cir. 1994) (en banc)).

    Aoyama argues, correctly, that this ruling contradicts precedent, for “any working computer” is not a programmed special purpose computer as the specification contemplated. See, e.g., WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999) (“In a means-plus-function claim in which the disclosed structure is a computer, or microprocessor, programmed to carry out an algorithm, the disclosed structure is not the general purpose computer, but rather the special purpose computer programmed to perform the disclosed algorithm.”); Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1253 (Fed. Cir. 2005) (“A computer-implemented means-plus-function term is limited to the corresponding structure disclosed in the specification and equivalents thereof, and the corresponding structure is the algorithm.”).

  126. The examiner at the PTO was typically feeble in examination, as was the patent board. At the CAFC, Judges Linn and Gajarsa illicitly ran over the claims. In dissent, Judge Newman was the only competent party in the chain of adjudication. One more chip on the plentiful pile of evidence that the U.S. patent system is dysfunctional and corrupted.

    …as the yahoos celebrate teh “whatever”

  127. “‘Do A after B’ is not a decision tree.”
    Sure it is. The other part is if not B then not A.

    “If A is not a novel step, your claim is very likely invalid. If A is a novel step, best to try to claim it without reference to B.”
    No …. it is the relationship (i.e., the invention as a whole) that is important, not the individual elements.

    “If A is a novel step, best to try to claim it without reference to B.”
    True … but that wasn’t part of the hypo.

  128. Nobody (with any real authority) says that algorithm is a structure. Instead, a computer programmed to carry out a particular algorithm has a structure. That’s really not that remarkable a proposition, but I suppose stating the actual state of the law is a lot less fun than mischaracterizing it as “algorithms are structure” or “methods are structure.” So have it your way.

  129. Possibly. I think the real problem here is that the means element was equivalent in scope to the a single flow chart element such that was not actually an algorithm, but a claimed result. The specification text also provided no algorithm, but again simply stated a result.

    So the takeaway here may be that the a means element must have some algorithm corresponding to it, not just the desired result from employing an algorithm.

  130. I think that’s exactly right, Ned. Given how rarely means claims are used these days, this is not that momentous a case.

  131. Possibly. I think the real problem here is that the means element was equivalent in scope to the a single flow chart element such that was not actually an algorithm, but a result claimed result. The text provided no algorithm, but again simply stated a result.

    So the takeaway here may be that the a means element must have some algorithm corresponding to it, not just the desired result from employing an algorithm.

  132. I’ve been leaving Max alone for some time now, but his sarcasm here was a real gem:

    “I suspect that it is the pressure generated by the clear “technical” line of EPO caselaw that explains the reluctance of the higher US courts to write their own bright line stare decisis rule on any of these matters of claim validity.”

    Hilarious!

  133. Almost all methods are some type of decision tree.

    Actually most claimed methods are not “some type of” decision tree. Go see for yourself.

    do A after B.

    “Do A after B” is not a decision tree.

    In these instances, identifying the relationship between A and B and the result of doing A is the “core” of the invention.

    do A if B happens

    If A is not a novel step, your claim is very likely invalid. If A is a novel step, best to try to claim it without reference to B.

  134. “No … only some methods are eligible subject matter.”

    You have trouble reading my post and 35 USC 100, 101? I explicitly noted the exception to patentable subject matter and 35 USC 101 states that processes are patentable subect matter and 35 USC 100 states that a “process” is defined to include a method.

    So, what was it that I posted that was incorrect?

    “are the sort of methods that are best described as ‘decision trees'”
    ?????? Almost all methods are some type of decision tree. E.g., do A if B happens or do A after B. In these instances, identifying the relationship between A and B and the result of doing A is the “core” of the invention.

  135. “Why don’t they just come out and say “Software isn’t patentable” instead of killing it with a thousand cuts.”

    Brenda Lee had the answer back in the early 1960’s:

    link to youtube.com

  136. I don’t know if I’d go so far as to say “approvingly”. They say specifically something along the lines of “the pto doesn’t argue this way x because that would be against our precedent”. Lol, well maybe they should have argued that way and then taken the case to the USSC. Although that ship don past I do believe. Wasn’t WMS gaming against the PTO also? I can’t recall.

  137. I don’t think you are reading the same decision I read. The panel said that the PTO was wrong, and that WMS Gaming is still good law. My experience with the PTO is that they never follow WMS Gaming, this case says that they are wrong not to. How is that harming software patents?

  138. a method is patentable subject matter.

    No … only some methods are eligible subject matter. A lot of methods are not eligible. A lot of methods that aren’t eligible subject matter are the sort of methods that are best described as “decision trees”, which typically show up in computer-implemented and/or “business method” type applications.

  139. I’m not chem/bio and you are Malcolm so I’m out of my depth here, but:

    For an “obtainable” product claim to get issued by the EPO, Applicant must show that its product has new characteristics, recited in the app, that distinguish it from the prior art product that was made in a different way.

    As to infringement, if the accused embodiment has the same characteristics that are recited in the app as filed, and lacks the characteristics of the product made in the old way, there is a rebuttable presumption that it IS the claimed product. Is there not in US law a similar rebuttable presumption about whether a product on the market was made by a patented method?

    Still not convinced? Like you remain unconvinced about European “use” claims? Granted, Europe is a strange alien world for Americans.

  140. closed “consisting of” steps, as intervening steps could/would obviously alter the composition in an infinite number of fundamental ways.

    Another Azz_clown who does not understand the difference in claim scope affected by the word “comprising.”

  141. “An algorithm in simple terms is a method.”

    No … an algorithm is one of the exceptions to patentable subject matter, while a method is patentable subject matter.

  142. 6 f does Rader square his holding that methods are non-corporeal and then holding that they’re structural

    It’s in one of those awful printed matter cases, as I recall. He simply asserts that the recited steps of the algorithm are the “electronic” structure of the programmed computer.

  143. MD occasionally, a product invention comes along which can be clearly defined only in terms of the way it is made

    If that’s the only way the composition can be defined, then it is certainly not “clearly defined.” The method of making it may be “clearly defined”, but the composition is not. It is of course impossible to know if one’s own composition is infringing such a claim, absent carrying out the recited steps. Even then, identity would still not be “clear” unless the process is written in closed “consisting of” steps, as intervening steps could/would obviously alter the composition in an infinite number of fundamental ways.

  144. “To do so would flatly contradict this court’s precedent.”

    Which should be contradicted before someone gets it to the USSC and announces to the world how bad of a sham WMS gaming was.

    “(“If a claim is indefinite, the claim, by definition, cannot be construed. Without a discernable claim construction, an anticipation analysis cannot be performed.”).”

    Where did they get that? Not that I disagree…

    “and the descriptive text as a structural algorithm that could be routinely programmed to perform the function of generating transfer data.”

    While there was a lot of good stuff in Newman’s dissent that piece right there was lolworthy. A “structural algorithm”. Lulz. Does Newman even know what an algorithm is? An algorithm in simple terms is a method. Just how the f does Rader square his holding that methods are non-corporeal and then holding that they’re structural?

  145. 11. A system for supply chain management comprising:

    an order controller system including reverse logistics means for generating transfer data; and

    a warehouse system receiving the transfer data and generating shipping data.

    This claim is so horrifyingly banal that it’s not difficult to imagine it going down under 101. Obviously, the “reverse logistics means” is the only possible contribution to Aoyama’s claimed “system” relative to prior art systems. Here’s Wikipedia’s definition of “reverse logistics.”

    Reverse logistics stands for all operations related to the reuse of products and materials. It is “the process of planning, implementing, and controlling the efficient, cost effective flow of raw materials, in-process inventory, finished goods and related information from the point of consumption to the point of origin for the purpose of recapturing value or proper disposal. More precisely, reverse logistics is the process of moving goods from their typical final destination for the purpose of capturing value, or proper disposal. Remanufacturing and refurbishing activities also may be included in the definition of reverse logistics.”[1] The reverse logistics process includes the management and the sale of surplus as well as returned equipment and machines from the hardware leasing business. Normally, logistics deal with events that bring the product towards the customer. In the case of reverse, the resource goes at least one step back in the supply chain. For instance, goods move from the customer to the distributor or to the manufacturer.

    Cites for the term “reverse logistics” on Wikipedia go back to 2002. Of course, it’s well-known the the 1990s marked the first time in human history that a product was ever returned to a business by a customer for any purpose!!!!

    Priority for this p.o.cxxp is 2004 (a solid five years before computers were ever considered for use in keeping track of goods coming into and out of warehouses!!!!!!).

    The fact that applicants even bothered to appeal this p.o.s. should make all reasonable people sick to their stomachs. It’s a symptom of a disease that has been consuming the US patent system at an ever-increasing rate for years. It’s an old disease with an old name.

  146. All it takes to understand these cases is to NOT look at the underlying case law but who is on the panel. On one side, you’ve got Newman and Rader who are supporting an expansive interpretation of 35 USC 101, and on the other side you’ve got Linn and Dyk who are looking to curtail patents, in general, and get rid of “software patents,” in particular.

    Read Linn and Dyk’s concurrence in Bilski.
    Read Linn & Dyk in Pefect Web v. InfoUSA
    Read Dyk in Cybersource
    Read Dyk in In re Lovin
    Read Dyk and Linn in In re Jung
    Read Dyk’s dissent in Genetics Institute v. Novartis

    It isn’t rocket science here. You’ve got two sides battling it out. Until we get a en banc decision by the Federal Circuit (or SCOTUS) on some of these issues, you’ll be seeing competing decisions from the different camps that’ll require a magnifying glass to identify the fine line that distinguishes one case from another.

  147. As an in-house USPTO man, Malcolm, you will of course be as familiar as Pauline Newman is, with the EPO line on product by process claims and that in that place, just occasionally, a product invention comes along which can be clearly defined only in terms of the way it is made and that, for those rare cases, a claim in “obtainable by” form, to the product per se, is appropriate to allow.

    As with all other claim validity cases, like business methods and Beauregard claims, the judgement lies in knowing where to draw the line.

    I suspect that it is the pressure generated by the clear “technical” line of EPO caselaw that explains the reluctance of the higher US courts to write their own bright line stare decisis rule on any of these matters of claim validity. They know they might get it wrong.

    Only saying.

  148. Celebrating lawlessness – bunch of azz_clowns.

    Have any of you actually read the decision through yet?

  149. B-b-b-ut Figure 8 is an algorithm!!!! And algorithms are st-st-structure!!!!

    Nice try, Newman.

    Back on earth, though, Aoyama’s patent application is a typical example of the trash that is clogging up the USPTO and ruining the US patent system for innovotors.

    11. A system for supply chain management comprising:

    an order controller system including reverse logistics means for generating transfer data; and

    a warehouse system receiving the transfer data and generating shipping data.

    Some classic nuggets from Newman:

    The majority opinion does not address whether a person of ordinary skill in computer programming would understand Figure 8 and the descriptive text as a structural algorithm

    News flash: using the word “structure” to describe a method does not impart actual structure to the method.

    Computer-implemented innovation has generated a well-established protocol that takes cognizance of the blah blah blah blah blah

    Judge Newman needs to wake up and smell the backlog. Federal Circuit “precedence” on the issue of what constitutes sufficient 112P6 structure is a joke.

    In no case was computer code included in the patent specification; neither machine code nor source code is required to provide structure to a description of the claim function.

    Yes, Aristocrat was a terrible decision.

    The standard of whether the disclosure is sufficiently “definite” is whether a person of ordinary skill could pro-gram the computer to perform the stated function based on that disclosure.

    Remember, this is the only judge on the Federal Circuit who dissented from the majority opinion in Abbott v. Sandoz, which held that a product claimed according to the process of its manufacture is infringed only when the recited process steps are carried out. It is one of the most reasonable and well-considered opinions in the history of the Federal Circuit. Judge Newman thought the holding was unfair to “innovators” who were unable to describe what they had invented. Think about that.

  150. Ned, I suggest that you go back and read WMS Gaming and Harris v. Ericsson, which are both cited approvingly in this case. The patentability of properly written and supported computer-implemented claims is not in serious jeopardy here. Unless you’ve got some secret decoder ring for that wall handwriting that I don’t have.

  151. IBP, would it be better to treat all these claims (programmed computer, and/or systems formed from programmed computers) as process claims from the get go, or is it better to force this result by requiring that the hardware/software actually be described, which disclosure can be avoided by claiming the processes as processes in the first place?

    I tend to look at these claims from the view of proving infringement. Typically, the proof of infringement involves showing simply that the process steps are performed, nothing more. Thus, for infringement purposes, they are treated as process claims in court. Why shouldn’t they be treated as process claims regardless of the nominal class the drafter said they were?

    But, the alternative view being pursued by the Feds now seems to be to make it all but impossible to claim them as machines?

    From a big picture point of view, we have come full circle since the late ’60s, when the function of a machine and the mental steps doctrine were thrown into the ash can by Rich and his fellow henchmen. The court is bringing the discarded doctrines back from the dead in cases such as Cybersource and Aoyama.

  152. Why don’t they just come out and say “Software isn’t patentable” instead of killing it with a thousand cuts.

    Because it’s a lot more fun to watch ’em die this way.

    August 2011: Greatest Month Ever in the History of Patent Law

  153. Hmm… I don’t see that this case has anything to do with “forcing people to stop claiming processes as apparatus,” or with patentable subject matter, or with the patentability of system claims in general. This is simply about how to analyze means-plus-function claims when the means is a computing device. Nothing radical here – the case should not have been appealed. Judge Newman is wrong on the question of whether Figure 8 actually discloses structure for the function that is recited, but is probably right that this should have been an outright reversal.

  154. First transformation requirements for section 101 status. Then we kill Bearegard claims. Then we dismiss flow charts as insufficient disclosure.
    Why don’t they just come out and say “Software isn’t patentable” instead of killing it with a thousand cuts.

  155. Nice to see the beginning of the end for ill-defined “system” claims. Like I said on the Cybersource thread, they should be the next “genus” to bite the dust.

    So easy to 112. See CAFC?

  156. This should have been the opinion in the Cybersource decision.

    Better late than never, I guess, although that piece of crxp Cybersource is still out there…

  157. I haven’t bothered to read the decision, but I’m just going to assume that Newman got it right. Again.

  158. I assume you also think a programmed computer that only produces “transfer data”, or a warehouse system that uses the transfer data to produce “shipping data” defines a patent-eligible invention?

    But I agree, let’s simply define them as indefinite in the case of MPF, or without sufficient written description in the case of the warehouse system.

    This subject matter is patentable? What a joke.

  159. Amazingly good opinion. It looks like, to me, that the Feds are going to force people to stop claiming processes as apparatus. Good job Fed Cir.

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