By Jason Rantanen
Ultramercial, LLC v. Hulu, LLC (Fed. Cir. 2011)
Panel: Rader (author), Lourie, O'Malley
The line between patentable processes and unpatentable abstract ideas continues to trouble the Federal Circuit even as the Supreme Court prepares to address the issue for the second time in four years in Mayo v. Prometheus. In Ultramercial, the court—led in this instance by Judge Rader, whose views on patentable subject matter are clear and well known—rejected a challenge based on lack of patentable subject matter in an opinion that draws the line between steps that can be performed in the human mind or by a human using pencil and paper (unpatentable) as opposed to those that require a computer (patentable).
Patent No. 7,346,545 claims a method for distributing copyrighted products over the Internet where the consumer receives a copyrighted product for free in exchange for viewing an advertisement and the advertiser pays for the copyrighted content. The district court granted the accused infringer's motion to dismiss on the ground that the '545 patent does not claim patentable subject matter.
Patentable application not an abstract idea
On appeal, the CAFC reversed. After noting the broadly permissive nature of Section 101, and placing the '545 invention in the "process" category, the court looked to the abstractness of the invention claimed by the '545 patent. Eschewing the "machine or transformation test," the court focused instead on the programming complexity required to carry out the claimed elements. The claimed invention, the court determined, constituted a patentable application rather than an unpatentable abstract idea. While "the mere idea that advertising can be used as a form of currency is abstract, just as the vague, unapplied concept of hedging proved patent-ineligible in Bilski,…the '545 patent does not simply claim the age-old idea that advertising can serve as a currency. Instead, the '545 patent discloses a practical application of this idea." Slip Op. at 10. This statement is followed by identification of the specific steps for monetizing copyrighted products set out in the claims, many of which involve complex computer programming. "Viewing the subject matter as a whole, the invention involves an extensive computer interface." Slip Op. at 11.
Software is patentable
Layered on top of this finding is the court's rejection of the argument that software programming amounts to abstract subject matter. "The digital computer may be considered by some the greatest invention of the twentieth century, and both this court and the Patent Office have long acknowledged that "improvements thereof" through interchangeble software or hardware enhancements deserve patent protection. Far from abstract, advances in computer technology—both hardware and software—drive innovation in every area of scientific and technical endeavor." Slip Op. at 12.
This holding is in tension with the Federal Circuit's recent opinion in Cyber Source Corp. v. Retail Decisions, Inc., No. 2009-1358 (Fed. Cir. Aug. 16, 2011), in which a panel consisting of Judges Bryson, Dyk and Prost concluded that a method of verifying a credit card transaction over the Internet constituted an unpatentable process. While the panel in Ultramercial recognized this tension, it distinguished Cyber Source as an instance of "purely mental steps." Ultramercial Slip Op. at 13 (emphasis in original). The line, at least from the point of view of this panel, thus lies somewhere between logical steps that humans can perform without the aid of a computer versus those that require a computer to carry out.
Exactly, and Nedo might as well sign his name as Mudd.
You are probably right about that 6. The overlords will be operating information processing methods that are likely execute on general purpose computers.
“you can’t read or even acknowledge one single point made, let alone make a rebuttal based on the law and issue being discussed.”
Why do you expect differently? The only accountability he needs is to see his name on the post. Actual honesty and integrity? Bah, those are for lesser beings.
Now. No more moping – do you think Steve would be moping?
1. Too many words.
2. Eviscerate?
Hi Ned:
I used the law to line by line eviscerate every point you have argued in the last year regarding business methods.
Of course you can’t read or even acknowledge one single point made, let alone make a rebuttal based on the law and issue being discussed.
The only thing left to do is evade acknowledging the defeat everyone else can so plainly see for themselves.
So go ahead make as many irrelevant post as you like if it amuses you.
On this solemn day when an great American Actual Inventor has passed people like you that troll on the internet and push an anti patent anti business method/software agenda seem even less important.
AI, you might read Herodotus. He describes a delegate of an attacked people who addressed the Spartan senate in a long speech, explaining who his people were, their cause, and why they needed Spartan help against the invader. At the end of his speech, the Spartans replied that they had no answer to give, as the second have of his speech made no sense because they could not remember the first half. So the delegate retired and thought about his predicament. The next day he returned and addressed the Spartan senate as follows:
"Help!"
the delegate said.
The Spartan senate then conferred and replied, "Granted."
Actually when you have nothing you can respond with it’s best you don’t even respond at all.
As far as you ADHD?
Well, maybe I can invent something for that.
You know, AI, I have not been harassed at all while you enjoyed your vacation. Hmm….
Regarding the rest of your note, I see you are beginning to get it.
If you actually want me to respond to you in the future, I suggest you keep it short. If messages exceed 25 words, I begin to lose the train of thought. The end of the message makes no sense because I can no
longer remember the beginning of the message.
Brevity is the soul of wit, after all.
Hello Ned:
I have been at the beach. How have you been? I see your fellow attorneys are really dogging you on the law like a pack of hounds on a fox eh?
Well, it’s quite easy to have a discussion with me. All you have to do is…
Answer questions when asked.
Present evidence when requested.
Be honest when expressing your opinions.
Especially when we disagree. For example, you are fond of espousing the very narrow interpretation of Diehr that the CAFC adopted for its sole MOT Test.
And of course anyone familiar with the line of cases knows that this narrow interpretation was the view of the minority in Diehr. Yet you expouse this minority opinion as if it is the majority view and controlling law.
I believe this is why your fellow attorneys get so irate with you. You have the audacity to conflate the law and twist majority and minority opinions right in front of their faces, as if they are too daft to know the difference.
It would be far more appropriate, professional, and conducive to debate and discussion if you would admit and preface your comments with qualifiers that say for example, “This is not the law , or this is only the minority opinion but I believe it should be, or will be the law some day. Such an approach would be far less inflammatory to the sensibilities and intelligence of the legal community in which you claim to be a part.
Yes, I know there are members of the Court that agree with the minority view in Diehr, as championed by Stevens. But you have to face the facts that….
No where in Diehr did the majority say a machine or transformation was the sole requirement for a process to be 101 patent eligible.
Nor did Diehr say the definition of a process was limited to the 1800’s definition of transforming raw materials into a different state or thing.
And no where in Diehr does it say business methods are defined as and limited to transactions, or math equations, and more important that such methods are patent ineligible.
All the above are just plain facts.
In addition, in my opinion, and that of the Supreme Court as well, the CAFC in Bilski went too far.
The CAFC sanctioning of the Dudas Office version of the MOT was not supported by the Majority in Diehr.
For example the Office created the policy that the machine must implement all of the method steps. Yet that was never required in Diehr, nor did Diehrs machines ever do such. In fact Diehrs machine and process required a human operator and pure mental and thinking steps in order for the process to be complete.
And most important, while MOTs where considered a clue, and even “the” clue for 1800 iron age inventions, “applications of concepts” was given at least equal weight by the majority in Diehr.
Finally, in SCOTUS Bilski, the Court had the opportunity to reverse the majority in Diehr or at least put a gloss on it so that it would be interpreted the way you Ned Heller wish it to be. But they did not so hold. In fact they did the exact opposite and explicitly said :
““Finally, in Diehr, the Court established a limitation on the principles articulated in Benson and Flook.” Bilski 14.
I will leave it to you and the attorneys to hash it out, if you have the courage to face them that is, on Bilksi 11, Congressional Intent and the new AIA, which I am not fully up to speed on yet.
But one thing I know for sure, Diehr controls, and all your above arguments to the contrary are impotent conjecture.
Ned,
It does appear that you use the “sockpuppet” excuse to evade answers.
I classify this as part of your “indignation” game.
I notice that your feelings are so hurt that you have failed to actually answer the questions put to you.
Must be nice to decide when to answer questions and when not to.
Although as Publius points out, all this does is extend the same conversation mode into the next thread (and the next and the next)….
I apologize if it seems that I am picking on you, but I too am bored with this thread topic (but not so bored that I don’t want to see the plain words of the law, both legislative and case law recognized for what they actually say ) – and I think if you actually engaged the questions and put away the games everyone would be much happier.
OK, Publius. If you want to make amends, I will as well.
That better?
You are off ignore.
However, stop posting here and try another thread. This thread is way too full as is.
Please read carefully Ned – (another habit that you should improve upon).
I admitted to being my own moniker. I admitted to “jumping on the bandwagon.”
This expressly means that I am not a sockpuppet of any of the other poster. What it means is that you present the opportunity to discuss a favorite topic of mine because it is you that starts these rants and it is you that ends up inviting the bandwagon effect. You invite the Cabal. If you would listen I am telling you how to disperse the cabal. Answer the questions. Head on. Stop your silly games.
You really need to get out of your own way, Ned. You come across as a self-righteous pr1ck who really does deserve to be picked on. You have no one to blame but yourself.
Publius, since you admit to being part of the cabal, I so no need in any further justification for ignoring you.
Why would I be happy when you don’t answer questions?
Why would I be happy when you persist in illogical and fallacious thinking?
I admit to a little jumping on the bandwagon on you, but that is more because it is when you start to rant that you use the “I post in my own name so I am better than you” game.
No one else does that!
You seem to love to post your opinions but they are shallow. You do not stand for anyone posing tough questions back to you, and you use all sorts of gimmicks to avoid a confrontation that would force you to change your long held beliefs.
Why would anyone be happy to let someone else live in a fool’s paradise?
Alternatively, and in a selfish mode, I do get tired of your posting in the same manner and having the same valid counter points raised which you do not answer. It is truly tedious to see you post the same banal opinions with the same flaws that people catch onto and point out to you time and again. One of these days I still hope that you take the time to take these criticisms to heart and really notice why your repeated arguments simply fail.
Your obsession with your own theories is your downfall, and you wear this pious mask that you think makes you look dignified and righteous, but on the outside, it is but a clown mask.
Please feel free to ignor this, or accept it as helpful criticism, the choiuce, as always, is yours.
Publius, the fact that you appear so frequently in posts from obvious sock puppets gives me pause. I am not convinced.
Besides, the fact that I have you on "ignore" should make you happy, not sad.
Sure, if you want those words, a claim to the mathematics wholly preempts the use of the mathematics. A claim, as in Bilski, to hedging using the claimed mathematics wholly preempt the use of the mathematics for the hedging application. The computers are recited as tools used for calculation, as in "mathematical formula" calculated using a particular calculator. The recitation of a particular machine for calculation does not meaningfully limit the claim.
That better?
“In essence, the claims were directed, not to a computer, but the mathematics itself.
”
feel free to use patent law lingo and just come out and say it Ned. The claims were directed, not to a computer, but the mathematics itself, that is, it preempted all uses of the mathematics itself.
“Ned: the only test created in Benson was one that only a psychotic mind could follow.”
Exactly! Well, psychotic or way smarter than NWPA.
” In 100 years, students will read Benson to warned about policy based psychotic reasoning.”
In a 100 years our robot overlords will have no use for patent lawl and will have dismantled it. ‘
Either that or the singularity will happen and negate pretty much all need for more patent law as we’ll all become effectively immortal.
Night, I assume you are a fan of later C.J. Rehnquist, Burger, Steward, White and Powell, who, in a 5-4 decision, said this in Diehr:
“‘That a process may be patentable, irrespective of the particular form of the instrumentalities used, cannot be disputed. . . . A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. In the language of the patent law, it is an art. The machinery pointed out as suitable to perform the process may or may not be new or patentable; whilst the process itself may be altogether new, and produce an entirely new result. The process requires that certain things should be done with certain substances, and in a certain order; but the tools to be used in doing this may be of secondary consequence.” Cochrane v. Deener, 94 U. S. 780, 94 U. S. 787-788 (1877).
Analysis of the eligibility of a claim of patent protection for a “process” did not change with the addition of that term to § 101. Recently, in Gottschalk v. Benson, 409 U. S. 63 (1972), we repeated the above definition recited in Cochrane v. Deener, adding:
‘Transformation and reduction of an article “to a different state or thing” is the clue to the patentability of a process claim that does not include particular machines.'”
450 U. S. at 183-4.
You cannot blame Douglas solely for the MOT. Albeit, it was set forth in Benson by Douglas at the urging of Stern, but it was later adopted full bore in Diehr by the conservative majority. If a claim passed the MOT, it was patent eligible.
If the Benson claims failed in that case, it was because at least some of his claims were not limited to improved computer hardware. They were not claimed in a manner that suggested an improved machine, but simply that a particular machine be used to calculate the result. In essence, the claims were directed, not to a computer, but the mathematics itself.
anon, if want to discuss issues with me, adopt a regular moniker at least. I will no longer discuss issues with anyone without at least a regular moniker, and I will not discuss anything with people who are obvious sock puppets of each other.
If you are a serious poster and you want to participate here, do so in a manner that gives you some accountability.
Ned: the only test created in Benson was one that only a psychotic mind could follow.
An opinion of SCOTUS that will live in infamy as the worst written opinion in patent law. In 100 years, students will read Benson to warned about policy based psychotic reasoning.
You are a shameless man to be quoting from Benson. The paper with the Douglas written (foisted on him by Richard Stern) words on it make excellent carpet stain removal agents. For some reason grim seems to be attracted to the words and attaches itself to the words especially the words mathematical equation and law of nature.
Ned,
If you cannot answer the questions in the face of the actual law – just say so.
Your temper tantrum fools no one. I was polite and direct. You have overreacted to the extreme.
I am not sure how asking you to address the actual issues and the actual laws is “tripe,” or any part of an “endless sockpuppet game.” The ball is squarely in your court for you to address the very specific points. The choice is up to you to answer or keep running. Until you address them, how is it tripe that people, whether sockpuppets or not, press you to give actual answers?
Rather than address these points, you have evaded the questions by descending (once again) into your set of games – indignation, name calling, and accusations – things I explicitly asked you not to do.
Why is it that you are having such a hard time discussing the improper use of “categorically” versus “of a category?”
Why is it that you are having such a hard time discussing the Supreme Court Justice discussion concerning “of a category” at Bilski 11?
Why is it that you are having such a hard time dancing around the fact that 35 USC 273 sanctions method patents of the business method category?
Why is it that you are having such a hard time answering the very new law that you introduced , but did not cover fully – AIA Section 18(e)?
Why is it that you are having such a hard time answering any of the new case law on the subject (except the abberation CyberSource case)?
These are all very valid questions – your extreme overreaction makes it quite evident that you simply have no answers to these points. The only “logic” that you cling to is the misapplication of your (quite frankly delusional) “categorically” versus “a member of a category.” Your (painfully) obvious prevarications concerning not understanding medical methods simply sits out there for all to see because you cannot back up your position. Your parlor tricks of indignation, name calling and accusations also leave your (good?) name exposed as a charlaton, and as a coward. What response would you expect in a court of law if you reacted to your opponents argument in the gross temper-tantrum like responses you have shown today?
It would be far better for you to simply acquiesce the points than to draw so much attention to the fact that you cannot (nor will not) address the points.
anon, you and your sock puppets are all the same people. You are all worthless tra sh.
I have tried, patiently, repeatedly, to discuss things with you, only to have you pull endless sockpuppet games.
I will not discuss anything with anon, Um, no, Publius, AI, any thing that cites Bilski 14, Annie Mouse, or the like again.
This is ridiculous.
I have had it up to HERE with your tripe.
Please refrain from such over the top dramatics and address the issues as outlined.
“say that only I use the word “category!!!!””
Please read my posts again. Nowhere do I say that you use the word “category” rather than “categorically.” In fact, what I am posting is the request that you do not use the word “categorically” as that word is not appropriate. Do you understand the difference between the two words? Do you understand why your use of “categorically” is simply incorrect?
I do not think that I am unclear in my request to you. I asked you, rather politely and straight forwardly to re-read and reconsider your position leaving out your lynchpin strawman of “categorically” because you are the only one arguing that word. I was being polite in reqesting that you join the actual conversation, and comment on the actual issues and actual laws.
It is very unprofessional of you to respond with a tirade of “You!!! Fricken!!! Insane!!! A-hole.” What kind of accountability does using your name provide when you greet my earnest and straightforward request for you to reconsder your position with a different understanding of what your opponents are saying?
As I asked – Please stay on point and do not divert to indignation, name calling, accusations, and improper restatements of the law. Let’s see you put your best (and most objective) effort into this as, after all, your name is on the line (for whatever that’s worth.)
The only one not engaging in a decent and proper conversation is you Mr. Heller. I suggest you calm down and re-read my posts and follow the directions as I have set forth. I have given you no reason to be so belligerent. If you find it so difficult to actually address the issue and stay on point, that is a “you” problem, and strongly indicates that you cannot address the actual issues and actual law.
Will you comply?
You!!! Fricken!!! Insane!!! A-hole. I post a reply to your sockey Um, no, where he said the following,
“The very same code held by the majority of Justices of the Supreme Court of these United States in Bilski that the category of business methods were patent eligible.”
An you have the AUDACITY, the EFFRONTERY, the GALL to, in the very next post, say that only I use the word “category!!!!”
Trying to engage you frinkin a-holes in any sort of decent conversation is simply impossible.
You sicko, sock puppet.
That would be 35 USC 273, not 271
(I cut and pasted someone else’s error, now my error too)
And after your complete review of Bilski, perhaps then you would do everyone the honor of reviewing your argument against the the particulars of the following sections of law:
35 USC 271
Bilski 11
Bilski 14
recent case law (besides CyberSource) and
AIA Section 18(e)
Please stay on point and do not divert to indignation, name calling, accusations, and improper restatements of the law. Let’s see you put your best (and most objective) effort into this as, after all, your name is on the line (for whatever that’s worth.)
“because I have you would writing. Here.”
I cannot tell what you mean by this Ned.
I further think that no one but you has ever argued about business method patent eligibility using the word “categorically.” That is your strawman and (appearantly) your lynchpin logical link in the arguments you present in the face of both old and new legislative law and current case law.
It is a fallacy only you are chasing.
Most everyone else is simply looking to treat business mthod patents as a category just like any other category of method patents.
It really is as simple as that.
All Bilski held was that that particular application failed the Abstract exception rule of patent eligibility. Bilksi 11 addresses the point you keep trying to bring up. Please re-read Bilksi prior to your next post, think about the difference between “categorically” (your stance) and “as a category” (everyone else’s stance) and update your arguments accordingly.
Looking glass first off I did not make the first statement you quoted above. Secondly, if business methods are patent eligible, the question is whether the Bilski claims were business methods or not.
For if they were business methods they should have been declared patent eligible.
Now what is it? Where the business Bilski claims directed to business methods or not?
Let me help you, a process or method is a series of steps. Were the Bilski claims a series of steps? Yes.
Let me help you further. A process that has a business utility is a business method. Were the Bilski claims directed to a process that had a business utility? Yes
So, if business methods are patent eligible, why were the Bilski claims held not to be patent eligible?
Sent from iPhone
"Categorically patent eligible". Every time I quote you guys, you sock puppets, for your statement that that is what you think Bilski held, you deny it. Well stop denying it, because I have you would writing. Here.
Sent from iPhone
Compare
“The plain (and most direct) reading is that business methods are patent eligible. Does every business method deserve a patent? Clearly no. But the same can be said for any other category of method patents.”
with
“If business methods were patent eligible, the Bilski claims would have been patent eligible.
This logic is so simple that even bliterhin id – iots could understand it.”
W
T
F
Ned – where the h_ell is your logic? A group or category can be patent eligible while a member of the group can still be patent ineligible. This was brought home to you starkly wqith medical methods.
Stop playig the fool and then turning around and accusing others of being fools by not being able to read or apply logic.
THINK MAN
group = eligible and
member ≠ eligible
is perfectly logical.
There is a reason why “abstract” is called an exception.
Will you drop this bizarre stand already?
“see section 18 of the new statute”
What the L_I_A_R Ned won’t tell is what Section 18(e) actually says:
(e) RULE OF CONSTRUCTION – Nothing in this section shall be construed as amending or intrepreting categories (that is plural of category and not categorically) of patent-eligible matter set forth under section 101 of title 35, United States Code.”
The very same code held by the majority of Justices of the Supreme Court of these United States in Bilski that the category of business methods were patent eligible.
You have the audacity to L_I_E and parade the very section of NEW law that destroys your pathetic philosphy. Do you even know how to read? Did you not check Section 18 thoroughly before you decided to ask other people to read it? All you have done is added yet another section of law that your philosophy FAILS against.
You are shameless.
“ it would be better if you would simply stop posting here”
Take it from Ned – do you know how many times he has been told this?
If business methods were patent eligible, the Bilski claims would have been patent eligible.
This logic is so simple that even bliterhin id – iots could understand it. Why don't you guys understand it?
No they did not and for reasons I previously explained. What are you? Some kind of Smart Alec?
Ned,
You appear to quibble at the edges and avoid the central spotlight.
When you have to posit thoughts in double or triple negatives, you should stop and ask yourself why.
The plain (and most direct) reading is that business methods are patent eligible. Does every business method deserve a patent? Clearly no. But the same can be said for any other category of method patents.
The plain and direct reading of 35 USC 273 is that Congress had a direct opportunity to outlaw business method patents and chose not to.
The plain and direct reading of the AIA act, incorporating as it does the reatining of 35 USC 273 – and notwithstanding the section 18 which you point out (and if you read carefully has some very interesting things to say – especially the section e) and which is most pertient to the discussion here. Congress once again had the direct opportunity to outlaw business method patents and chose not to.
It is important that you acknowledge these items as facts. Notwithstanding the fact that you post under your own name, there is no accountability if you dodge, duck, prevaricate or otherwise obfuscate these direct facts.
The next move is yours.
AI, it would be better if you would simply stop posting here. It really is impossible to have a discussion with you.
“All in all, Congress has reacted to State Street Bank in a manner that is not consistent with approval of that decision.”
Sounds like a mighty fine dance. Did they actually outright outlaw business method patents or not in reaction to the State Street Bank case? Did they actually outright outlaw business method patents or not in reaction to the Bilski case?
(these are yes or no questions)
Nice cop out. Unless I agree with you, I simply don’t understand. That’s what people who have actually lost a debate end up saying.
I could same the same of you and what would make your position anymore valid than mine?
You know Ned, you really should not make claims you can’t back up. Or when you lose on the merits simply admit it and move on.
Publius, Congress, after State Street Bank, passed 35 USC §273, which granted prior user rights but only with respect to business methods patents. In th most recent legislation, they passed special post-grant procedures for business method patents essentially allowing them to be re-examined by the patent office in a special post-grant review proceeding. see section 18 of the new statute.
This section recognizes that a business utility by itself does not render unpatentable a business method claim so long as the claim is directed to technology.
All in all, Congress has reacted to State Street Bank in a manner that is not consistent with approval of that decision. However it also indicates that Congress has no good method of banning Business Methods, because it recognizes that some inventions can be technological even if they have business utility. I would suggest the programmed digital computer has business utility, but clearly is technological in nature.
So I see both disapproval of business methods by Congress and its caution about how to deal with them so as not to render unpatentable inventions that technological in nature but that had business utility.
in the US of A, you can have abstract ideas incorporated into your claims.
Have fun with your strawman, dxxxfxxx.
Why can’t these sockpuppets learn to read?
Actual Inventor,
You are mistaken – I have not called Ned a hypocrite. I merely disagree with both sides of his premise on the use of pseudonyms (anonymous blogging) and the use of one’s own name invoking any type of accountability.
I would like to see Ned address the points raised against his view, notably the Bilski 11 quote and the lack of Congressional action on the outlawing of business method patents (related to the Bilski decision). I think the legal affect is not fully appreciated (yet). I think that when Ned accepts the law in this area, he will wonder why he fought so long and so hard.
anon, I do not object to anonimity. I object to sock puppetry.
Dennis really needs to figure out how to control it, IMO.
Ned,
I agree that anonymity and sock puppetry are not the same thing. This is how I deal with that:
I evaluate the actual content (the message) and pay less attention to the deliverer (the messenger).
Those that actually want to have a conversation versus those that only want to proselytize will be apparent quickly enough. If one addresses his own points, then it matters far less if sockpuppets are involved or not. In other words, don’t get hung up on the “who,” but pay attention to the “what.”
That being said, Publius has some good points, and quite frankly, I also just do not see what posting in your own name brings to the table. It simply does not lessen the sophistry or tricks used in debates on these threads, nor does it guarantee any type of accuracy or accountability in the legal arguments used.
I am sorry for you AI. You cannot read a case and understand its holding.
anon, I (we) have been dealing with sock puppets. I hope you know what that means. Sock puppetry is reprehensible, IMHO.
I can only wish that Dennis would ban, in some fashion, his allowance of sock puppetry. Anonimity and sock puppetry are not the same thing, not at all.
From: TypePad
This reply has nothing to do with the topic at hand.
Umm so? Just posting this statement is irrelevant when you have made no rebuttal to the arguments in any of our debates nor have you answered any of the questions I have asked.
How about you answer the most recent for September 25th below…
>>>>>>>
Actual Inventor said in reply to Ned Heller…
Ned: “Ultramercial held that claims that both fail the MOT and can be performed by a human are abstract. ”
Where does it say that in Ultramercial? I need that exact quote.
( Not how you read it. Not your interpretation.)
Reply Sep 25, 2011 at 05:50 AM
“Why should I bother replying to you at all?”
Maybe because Publius raises some good points?
Maybe so that you don’t appear to be a hypocrite?
Maybe because you might want to address the points raised against your position, otherwise known as defending your position?
Maybe because answering the points might add some value to your own understanding?
Maybe because that is what a gentleman would do in a debate?
Maybe because you might be tired of being slapped in the face with the law?
Shall I continue?
And I explained to you before that Diehr cabined both Flook and Benson.
::Bilski 14! ::
Now how about providing the quote from Ultramercial I asked you for on the 25th?
Why should I bother replying to you at all?
From:
This is ridiculous. I have explained to you numbers of times that the MOT test was created by the Supreme Court in Benson. I even quoted to you numbers of times the passage from Diehr that said so.
Now stop this nonsense, please!
From:
This is ridiculous. I have explained to you numbers of times that the MOT test was created by the Supreme Court in Benson. I even quoted to you numbers of times the passage from Diehr that said so.
Now stop this nonsense, please!
From:
This is ridiculous. I have explained to you numbers of times that the MOT test was created by the Supreme Court in Benson. I even quoted to you numbers of times the passage from Diehr that said so.
Now stop this nonsense, please!
From:
This is soooo true about Ned. I do not believe he has even acknowledged Bilski 14. And of course soon as it became clear Congress was not going to eliminate business methods or software he stopped even discussing 271. Bilski 11 is just the nail in his coffin of anti business method dreams.
Ned, like 6, and Malcolm can’t participate in a discussion about business methods, or software for that matter, and take the debate all the way to it’s final conclusion.
Because as soon as it becomes apparent they are losing they simply burst out in ad ad hominem attacks and don’t answer the final point that discredits their theories and exposes their bias.
MM: Can’t admit his dissecting claims at 101, 102, and 103 is not allowed by Diehr. Thus he can continue his crusade to eliminate software, and all processes, especially business methods without having to face the reality of current law.
6: Cant provide one example from actual case law ( Ultramercial currently ) of a claim pre-empting all uses of an abstract idea. Thus he avoids having to admit the fatal flaw in his phony pre-emption theory
Ned: Cant admit, among many things, that the MOT as created and applied in CAFC Bilski is not the same as the use of a Machine or Transformation in Diehr. Thus he keeps his false belief alive that Bilski upheld the MOT as the sole test, and ruled business methods ineligible.
And those are just plain facts. Each time we have a case like this I will back to slap them all in the face with the law.
Publius, nice calling out of Ned for being a hypocrite. I highly doubt he will answer , at least not with any honesty and integrity.
Let me interject some “reality” here.
Ned, the “post under your real name” game is old and stale. Please refrain from such.
Need I remind you that you never finished our earlier conversation about how using your real name actually holds you to a certain standard of posting? You still have not shown how any such Posting-Under-A Real-Name enforces a better conversation, one without ad hominem and one only grounded in actual facts and true holdings of law.
In fact, why don’t you explain your position in light of the references above?
Here we go. Show me in the statute or case law where this so called ” traditional processes” of yours in explained as being what the MOT stood for?
I need the exact quote.
And then, most important, show me how this mythical definition, ( which it is if you dont cite as requested) makes MOT still the sole or required test, and Business Methods non statutory?
As it stands now there is no machine or transformation requirement in the statute, or the case law, including Supreme Court precedent in Diehr.
Actually Ned, there are no sock puppets for me. No need since I only discuss one topic here and regular commenters know my position. But how about less diversion on your part and some honesty for a change?
You have implied a theory that Ultramercial has resurrected the CAFC MOT test as the exclusive test. At best that would be a very narrow reading of the case which does not at all seek to narrow 101, as you would like.
As it stands now there is no machine or transformation in the statute, or the case law, including Supreme Court precedent in Diehr.
As it stands now business methods are legal and statutory and have been explicitly upheld by the Supreme Court.
As it stands now you have lost on every court case since Bilski and continue to lose every time you cut and run, attack, and lie in discussions on his blog.
And rest assured, every time you appear here and speak on 101 subject matter eligibilty I will be right here to hold you to the law and your feet to the fire!
Ned,
I see you have time to participate in Ad Homien attacks but can’t be bothered to follow up and respond to points of law that discredit and invalidate your legal theories and personal philosophy of what you wish the law to be.
While you are here care to explain why you believe the the CAFC created MOT Test is the same test in Diehr?
How about acknowledging Bilkski 11, or even Bilski 14?
Oh silly &%$$ me. Ned does not do answers, or at least reply honestly.
Oh and if you are going to reject applicants claims on the basis the claim pre-empt all uses of an abstract idea, you will eventually have to give a real world example, in order to establish a prima facie case.
When I have asked you to do this in the past you have wilted, including for Ultramercial in this thread.
So your so called pre-emtion theory is essentially impotent.
“All uses of an abstract idea” is not equivalent to, and is not the same thing as “an entire field”
Okay we have it on the blog record that you are now limiting your pre-emption theory to all uses of an abstract idea. Let’s look at that. All uses of an abstract idea would encompass both the mental concept, (just thinking about the process), and the application, performing the process.
While The Supreme Court has said you can’t get a patent on just thinking about a process, you can get a patent on the application of the process, even if it includes mental steps. ( Diehr).
So your pre-emption theory would counter the Supreme Court’s controlling precedent on 101 subject matter eligibility established in Diehr. You would also fail at the Fed Cir in at least Ultramercial, and Researh Corp. Face it 6, your pe-emption theory does not have a legal leg to stand on.
And Yes 6, it is just a theory and your particular theory, until of course it has been adopted by the courts and ruled as law.
I’m vry srs sir, I will not stand for your lies and slander!
I demand a duel at high noon tomorrow outside starbucks adjacent the office! Bring your own pistol!
Um, no, post under you real name so that we can tell who you are. You seem a smarmy sock puppet of any number of posters who post the exact same c r a p.
Um, no, apparently is a sock puppet for AI, or is AI the sock puppet for Um, no. Regardless, the two are indistinguishable. Trying to talk to them is to get into bed with maggot-infested, diseased, drug addled, foul mouthed effluvia. They all are unpleasant in their smarminess regardless of their manifestation.
“discussed by serious people, such as 6 or Malcolm MM…”
You could not have picked two people that should be taken less seriously.
What you do not understand, AI, is that the MOT describes traditional processes. It is your continuing failure to recognize this that is causing you to malfunction.
As to the “controlled by” test. I think Rader has something here and it needs to be discussed by serious people, such as 6 or Malcolm MM or EG or Night Writer, or any other regular poster here but you, as you really do no get it an apparently never will.
6 to AI: “Go d dam you are stu pid.”
My thoughts exactly. Trying to carry on a discussion with this gentlemen is nigh on impossible. Whether it is his genetic deficiencies at work, or his lack of an education, he consistently demonstrates that he really is a complete waste of our time.
“Your being wedded to the discarded “[anything non-Diehr, non-software, anti-business method]” test is you blind spot.”
This prevents any meaningful discussions on this topic between you and me.”
Agreed – Ned cannot have a meaningful discussion on those things he refuses to acknowledge.
35 USC 271
Bilski 11
Bilski 14
recent case law (besides CyberSource
Ned is not interested in actually having a discussion. He is only interested in pushing his agenda.
“All pioneering inventions in one of the enumerated categories, and that does not fall in one of the judicial exceptions of law of nature, or natural phenomenon, will now be abstract ideas under your pe-emption theory/test”
Hardly tard. I routinely approve “pioneering inventions” in so far as those words hold any meaning at all.
Just because you don’t understand the analysis doesn’t mean that whatever nonsensical result you can think of would happen irl AI.
“Of course that is just one of the many holes in your theory. ”
It isn’t a “theory” ya jackwad. It’s what the USSC decided.
“ever give an example of how a claim pre-empts an entire field.”
Why in the f would I ever say that a claim preempt an “entire field”? “All uses of an abstract idea” is not equivalent to, and is not the same thing as “an entire field” you tard.
God dam mit AI, talking you is like talking to a 5 year old child. You keep making up irrelevant nonsense off the top of your head to “support” your position.
“Seriously 6, how do you think you will ever get this theory pass the BPAI, let alone the Fed Circuit?”
I don’t have to. Companies will do it for me. Like they already have. And they win sometimes, and they lose sometimes based on the panel deciding the case. Go d dam you are stu pid.
And what exactly is this counter to from the Supreme Court?
“Strict?
All I ever did was point out to you that Diehr was about the MOT when you denied that it was involved at all.”
Playing du mb again Nedo? What you did was claim Diehr only received his patent because it involved a machine and transformation. I pointed out the FACT , using quotes from the case, that Diehr received his patent because it’s was a concept with a specific application to a specific industrial process. DCAT for short. While the machine and transformation was a clue in Diehr, and helped, lack of the machine or transformation did not hurt.
“Regarding the U case, the “controlled by” was the only “test” in the case.”
That’s not a specific quote. You just plucked a couple words from the case and applied your theory to the words. You know better than this Ned, but you don’t give a sheet.
I am sick of you! You have no honor.
Strict?
All I ever did was point out to you that Diehr was about the MOT when you denied that it was involved at all.
Regarding the U case, the “controlled by” was the only “test” in the case.
“Can you quote one point of law created from this case that is counter to the Supreme Courts ruling?”
Sure thing bro.
“With this in mind, this court does “not presume to define ‘ab-stract’ beyond the recognition that this disqualifying characteristic should exhibit itself so manifestly as to override the broad statutory categories of eligible subject matter and the statutory context that directs primary attention on the patentability criteria of the rest of the Patent Act.”
And that’s just for starters.
I think you mean “counter to” not “backed by”.
Can you quote one point of law created from this case that is counter to the Supreme Courts ruling?
::The Usual Silence::
You Ned and MM have been totally beach slapped, cornered and cowed by LAW as usual. All of you have cut and run.
See ya for the next 101 case for another good ole fashion but kickin.
My job is done here.
:: Goes To The Beach::
“Rader’s “controlled interaction with a machine” test appears to be a good test.”
What you forgot to do is preface your statement with, “As I read the case…” This way it’s clear to all that what you are saying is merely your interpretation, and not the actual law. Since it’s fact that no such holding exist in Ultramecial.
But this is a pattern for you isn’t it Ned? Just like your claim Diehr teaches a strict machine and transformation test, and Bilski eliminates business methods as eligible subject matter.
But then again it’s Ned. The commenter that has no moral values or integrity when commenting on a blog.
Ned: “Ultramercial held that claims that both fail the MOT and can be performed by a human are abstract. ”
Where does it say that in Ultramercial? I need that exact quote.
( Not how you read it. Not your interpretation.)
Nice post AI.
It is clear that Rader still wants UCATR ("useful concrete…"). But he concedes that Ultamercial is precedent.
Ultramercial held that claims that both fail the MOT and can be performed by a human are abstract. Rader's "controlled interaction with a machine" test appears to be a good test.
Sent from iPhone
“Did I say that? No, I did not. SOME “pioneering” just like SOME “normal” inventions do not pass as eligible because they are excepted. The test does not discriminate or reward a certain claim being “pioneering” or not.”
All pioneering inventions in one of the enumerated categories, and that does not fall in one of the judicial exceptions of law of nature, or natural phenomenon, will now be abstract ideas under your pe-emption theory/test.
6 you just wiped out a big swath of innovation. So accordingly I must say this pre-emption theory of yours is clearly anti-progress on it’s face.
Of course that is just one of the many holes in your theory.
The real feet of clay is your inability to ever give an example of how a claim pre-empts an entire field. You always wilt when faced with that question and ignore it. Just like you did up thread when I asked you for an example of how Ultramercial’s claims pre-empt the entire field of transactions, and therefore according to your theory are abstract.
Seriously 6, how do you think you will ever get this theory pass the BPAI, let alone the Fed Circuit?
Thank you for your vote. Ned likes to slip in backhanded ad hominems to distract from the facts at hand when it becomes obvious he will lose on those facts. He also likes to pretend to be d um b, or simply ignore the argument altogether and no longer respond.
Unlike Ned or 6, I don’t claim or pretend to be a patent attorney. I am an Actual Inventor that simply accepts the current law as it’s ruled on. Even when it’s not to my benefit. I accepted the CAFC Bilski test as the sole test, and narrow interpretation that machines had to implement the claims. When that was overturned, by the Supreme Court, on the precedent of Diehr, I accepted that as well.
Ned, 6 and the like all have their own theories and ideas of what the law should be and that interferes with their ability to be honest and accept what the law currently is based on the cases. So it’s Ned who is idealistic. It is Nedo and 6 that have quixotic philosophies and theories to advance , not us Actual Inventors.
We just want to know what the law is today so we can draft our applications appropriately. And it just so happens that the law has been coming down on the side of Actual Inventors and not the likes of Ned, 6, MM, and the rest.
I think Ned just has a really hard time accepting that, like any idealist would when his cause is set back.
I did not insert the world “useful” into this discussion. So put away the red herring of State Street being overturned and let’s stick to the law as it has been ruled on. Here is what this panel said in the Ultramercial oral hearings..
1. You have to focus on the claims.
2. There is no way to know if a claim is abstract until you construe the claims.
3. We have to look at the steps and see if they are abstract or concrete steps.
The Supreme Court did not define abstract or create a test.
So if you now say concrete and tangible is gone, how can we tell if the steps or concrete or abstract?
In other words Ned, why is Rader and this panel wrong and you are right?