This week in patent law class

  • This week in patent law class: Left my students confused after discussing Benson, Flook, Chakrabarty, Diehr, and Bilski. I’m somewhat confused as well.
  • Traditionally, a patentee could seek reissue to correct problematic claims if the problems were created “through error without any deceptive intention.”  The new patent act eliminates the “without any deceptive intention” limitation. What’s the impact?

-Dennis Crouch

268 thoughts on “This week in patent law class

  1. 267

    Dennis please note that the reply script is misfiring again.

    Ned,

    I think that you overstate your position somewhat (fair warning notice: I have not read the US brief, so I do not know if it is the US brief or Ned’s rendition that have the overstatements).

    A patent does not have to result in a new physical result for 101 eligibility purposes.

    Trying to hold so does not make sense, because you are implying that a first way IS patent eligible while a way that merely gets to that same result is not patent eligible. This is a classic conflation of 101 and 102/103, where the statutory application to “new” is appropriately placed. This also really does not get to the fact that the first way, the way that is not new, may or may not be it self patent eligible. Your concept just doesn’t fit.

    I think the 102 mental step proposition is close, but still misses. I see somewhat of an equivalency with the Printed Matter Doctrine. If you recall, the printed matter must have some functional relationship to be eligible for patent impact. That functional relationship is NOT proscribed to be a modification of a physical step (recall that the apparatus claims in the hatband case and the glass container case did not in and of themselves modify a physical step, because there were no step elements in the apparatus claims (although such modifications of physical steps, when present in appropriate claims, would clearly qualify as patent eligible). The term “functional relationship” is purposely wide, just as the patent field is meant to be purposefully wide. I would agree with a restatement of your proposition that for 102 purposes, any mental step that is not functionally related to the rest of the claim is ignored.

    Likewise, I think you overstate the 112 position, interestingly, where you state “functional relationship instead of “modify a physical step” (not sure just what inferences I should draw from your change in choice of words here). The 112 relationship may or may not be true. I can easily see where a 112 definiteness explanation or enablement can be met, but itself is somewhat meaningless (given the 102 restatement I provided).

    Let us not forget that mental steps, of themselves have long enjoyed the ability to be included in patent claims and that there is not – nor should there be – any type of all or nothing – mental steps in or out doctrine. It does seem like there is at least here, a very vocal push for such a doctrine, and I do not see any legitimate point of law for such.

  2. 266

    Max, you and I fundamentally agree at this point.  I think the key remains a simple idea:  If a mental step modifies a physical step to produce a new physical step, that new (mental + physical) step is, for the purposes of the patent law, physical as a general proposition.
     
    This was well accepted law in the the US for quite some time.  It seems it is the US position argued to the Supreme Court. 
     
    For 101 purposes, the claim as  a whole must produce a new physical result.
     
    For 102 purposes, any mental step that does not modify a physical step is ignored.
     
    For 112 purposes, any mental step
    that has no functional relation to a phsical step makes the claim indefinite.
     
     
     
     

  3. 265

    All this comes down to abstractions. Read Newman’s dissent in Bilski.

    Engineers are taught to work with abstractions. That is what I was taught with that word, abstraction. Pick the level of abstraction and work at it.

    Claims should be evaluated on whether or not one skilled in the art can practice the invention. An inventor is entitled to the scope of the claims that are enabled.

    It is really that simple. This abstraction business from the Bilski SCOTUS is nonsense. Not patent law and there is no fair way to apply it as it is not a real test. Read the Bilski dissent of Newman where she explains this very well.

  4. 264

    Fact check, cross check and gut check every time a false statement, misrepresentation and out right lie is posted by MM, Ned, 6 and the rest.

    After nearly 700 posts on two threads kicking the living shtt out of the anti-software patent crowd, and even after Prof. Crouch introduces yet another thread (this time with a cream puff 101 argument), the Shilling WILL continue.

    It is guaranteed, in part because the good profesor himself is still “confused” – the only confusion is how to preserve “the agenda” after such a thorough b_ttkicking.

    No wonder the courts look askew at the good Professor’s papers.

    Ned introduces his “experience” as an attempt at legitimacy, not realizing that he tips his hand as to his Shilling source. As Vested notes, Ned has built an entire career on a false proposition, and cannot and will not face the simple truth that he is wrong.

    I wonder why Ned never faced the challenge posted on the threads awhile back, the challenge by Ping I think between the two computers, one, programmed and one not programmed. For that matter, the good academic IANAE never faced that challenge either.

    The “slippery” argument of a switch built to be switched ignores the fact that a machine designed to be changed simply is not the same thing as a changed machine. The hardware analogy of “circuits in parallel being simply different than circuits in series” applies, as the assemblage of switches being reconfigured simply cannot be the same as the assemblage prior to being reconfigured. Swithcing a switch indeed is making use of an existing tool – but switching a switch is quite different from whitch siwtches are switched – what the configuration that must happen to meet the patent claim is actually achieved.

    The anology to molecules has been put forth previously – molecules have always had their atoms bind in the same manner – that is how molecules bind. IANAE’s logic would thus outlaw all pharm patents because there is actually no new binding mechanisms invented. Let me coin this the “Mischaracterizing Magic Microscope Game.” Dive down low enough with the Magic Microscope, pick out an event that occurs “because it is natural to occur (be it a switch designed to switch or a molecule that is designed to bind)” and wallah! No patent for you!

    Ned keeps trying to point out the difference shows up in how the different machine operates, but keeps ignoring the fact that the prior-to-being-reconfigured machine simply cannot perform.

    Having the capability of being changed is simply not enough from a fact standard and a legal standard to ignore what is really going on.

    The games SHALL continue.

  5. 263

    Can’t tell you that Ned but I’m still intrigued by your “Egg-boiling with altitude” hypo.

    looking at:

    A. Diehr (computing molding time)

    B: English Halliburton (iteratively computing an optimal drill tip design)

    C: Prometheus (computing a dosage regime)

    D: Your egg-boiling time increment.

    I distinguish C from A and B on the basis that only a machine intelligence can design the drill or cook the rubber but only a human intelligence can “re-calibrate” the dosage. Thus, A and B are fit to patent but C not.

    D is different, in that you can do it in your head or use a computer.

    The Prometheus protagonists urge that their invention is a new and non-obvious insight that has promoted the progress and so deserves protection. So too did Exxon at the EPO, with their motor fuel additive that reduced friction inside the engine. But the same fuel with the same additive was already known, with the additive in there to inhibit corrosion.

    At the EPO, Exxon still got a patent, for the “use” of the additive for reducing friction.

    Use claims thus meet the need to reward those who promote the progress. Malcolm thinks they are an abomination but they do serve a useful purpose (promoting the progress) and I am not aware of any problems with them in litigation that come anywhere near the level of mischief caused by the plague of “obscure parameter” claims that face us in ever-greater numbers.

    I wonder if the key is in the word “insight”. If that’s as far as you’ve got, you haven’t yet gone far enough to be fit to file.

  6. 262

    Okay so we can add Rader to your list of enemies, along with the truth, facts and law. Anyway, I am on break for a while so shill away! No need to censor the blog or add delete AI buttons. There are plenty of attorneys here to keep you in check and hold your feet to the fire. Though not any that work for me. I pay them too much money to fool with the likes of you.

    Cheerio!

  7. 261

    Anon: “And just as clearly, the direction given by the Supreme Court to the CAFC to rechart its position is clear. That recharted postion is also crystal clear.

    As noted (and as notably avoided in this string), the case of Ultramercial clearly outlines the new position in law on patent eligible subject matter.

    Clearly, the takeaways are – that 101 challenges should be few and far between, and that the wide open gate of 101 is what has been mandated both by the Constitution and by the governing laws as written by Congress; – that business methods and “software” patents are not categorically exlcuded and must be evaluated on their individual merits – exactly like any other patent eligible item; – that Alappat and its specific holdings that a programmed computer is structurally a new machine is binding law; that the equivalency of hardware-frimware-software is siimply undeniable, and thus software must be treated as a component in its own right.”

    Well said, well said indeed. No one wants to address Ultramecial. 6 stumbled into it in the other thread and was quickly dusted up. Ned tried to use a Useful Arts argument and found himself in a dead end alley. They have nothing new to offer. I am going to take a break now as I have real patents to manage and patent applications to prosecute at the PTO.

    But I encourage all to remain vigilant. Fact check, cross check and gut check every time a false statement, misrepresentation and out right lie is posted by MM, Ned, 6 and the rest.

    Though there be much whaling and gnashing of teeth, keep shining the light on the anti patent crowd and slap them mightily in the face with the law!

    Power to the 99%!!!

  8. 260

    My main line of work for 30 years has been in computers and computer architecture

    Thirty years of cluelessness.

    No wonder Ned refuses to face facts.

  9. 259

    Its a stunt to have two separate inventions? Isn’t there a special form to file for such cases at the PTO to prevent double patenting and all? I really don’t get your beef here IANAE.

  10. 258

    AI, "Free to look the dead Emperor Giles Rich in the eye, and declare before the evil State Street Financial Empire:

    My name is Maximus Nedimus Meridius, Commander of the Armies of the
    West, General of theSilicon Valley Legions, loyal servant to the true Chief Justice, John Paul Stevens. Father to a murd ered invention, husband to a mur dered business, and I will have my vengeance, in this blog or the next!."

    Make that that William O. Douglas instead of Stevens, and you have something there.

    Cheers to you too AI.  Perhaps you can play the role as well.  Why not the evil troll Rader, acolyte of the usurper Rich, devious deceiver and plotter, and interpretor of the heretical papers. 

  11. 257

    IANAE, don’t worry. My main line of work for 30 years has been in computers and computer architecture. I worked for CDC on mainframe designs. I have worked extensively on microprocessor designs of all types.

    The computer hardware does not change in response to program execution. Its machine state may. It inputs and outputs may. Thus, its OPERATION changes upon execution. But the underlying machine is unchanged.

    Besides, and this is where the Sophists do not get it, a real machine claim is to a static, unchanging machine. It infringes upon making and upon sale. One does not have to operate the machine to make it infringe.

    The fact that the novelty of a programmed machine is in the computer’s operation never seems to impact the thinking of the Sophists. A program is a sequence of instructions that execute. These instructions may fetch data. They may store data. They may add, subtract multiply or divide or execute logical operations on data. The program is a sequence of steps. The program itself may be fixed, but it is the operation of the program that is new and the real subject matter of the claim.

    A program is no different in substance than a recipe written in a book. The cook or the chemist follows the sequence of steps to produce a new result. The book containing the recipe is not new because of the recipe. The utensils used in the execution of the recipe are not made new because of the recipe. The novelty is in the sequence of steps.

    We often speak here of conflation. The Sophist conflates. They conflate the machine with the machine’s execution. They justify the machine claim by the operations performed by the machine in executing the program. This is Sophistry. Everyone knows it. They put on their dunce caps and rapidly move their magic wands; but still they cannot turn this frog into a prince.

  12. 256

    Ned: “We really need an ignore function here to “delete” posters such as Anon, AI, Um No, etc.”

    Wouldn’t it be nice if you and MM could just post to each other and not have anyone check you on the law, or challenge your personal theories with logic, fact, and reason?

    Just think what a wonderful world it would be if everyone just capitulated to your views.

    Why there would be a MOT requirement.

    Business Methods would be ruled non patentable.

    Diehr would stand for no more than the principles in Benson and Flook.

    Claims as a whole would mean the same as dissecting claims.

    AIA would eliminate all financial services and products as patentable subject matter.

    Useful Arts would be limited to inventions from the iron age and their progeny.

    Computers with software would not be patent eligible machines or machines at all.

    All Steven’s dissents would have the same legal weight as the majority rulings.

    Any dissents that agreed with the above would be controlling case law.

    And in this empty coliseum of a blog, with only MM to applaud, you Ned Heller could take off your Shilling mask and finally be free!

    Free to look the dead Emperor Giles Rich in the eye, and declare before the evil State Street Financial Empire:

    My name is Maximus Nedimus Meridius, Commander of the Armies of the West, General of the Silicon Valley Legions, loyal servant to the true Chief Justice, John Paul Stevens. Father to a murd ered invention, husband to a mur dered business, and I will have my vengeance, in this blog or the next!

    :: sounds of a single hand clappiing::

  13. 255

    AI: “The prairie dog invention is a case in point. I should be able to get a patent on my process”

    Thanks, AI. I knew we’d come to an agreement eventually. That’s exactly what I said at 9:34 AM.

    AI: “It the new use that is the invention, not the machine, […] And then in a separate patent application I should be able to get a patent for the machine itself,”

    If you’re trying to pull a stunt like that, you should at least put another sentence between those two statements so nobody notices.

  14. 254

    Hmmm not sure why I am being taken to task or what for, as I agree with the points you made.

    It seemed to me IANAE was arguing that if you used an old machine, the use or the machine itself was not patent eligible subject matter.

    Both clearly are patent eligible subject matter.

    And though unrelated to the task at hand IANAE has often made an argument against 100 (b). Since such would not confirm a MOT requirement.

    100 ( b) remains an unacknowledged but painful thorn none the less in the sides of the likes of Ned and MM. They desperately want to see 101 limited to a requirement for machine implemented processes ( the machine performs the method steps) yet 100 ( b) clearly allows for processes to be patent eligible even if they are not tied to the machine or the machine itself is not running the process.

    The prairie dog invention is a case in point. I should be able to get a patent on my process for sucking up those doggies regardless if the machine is moms old Hoover, or a street sweeper size behemoth with the power to suck those varmits up at record speeds.

    It the new use that is the invention, not the machine, and not the vacuum process.

    And then in a separate patent application I should be able to get a patent for the machine itself, even if it is just a gigantic vacuum cleaner.

    As far “As Alappat holds (and the facts support), the programming actually does create a new machine. Just because the creation is at a level unseen by human eyes, does not mean the creation of a new machine has not taken place.”

    Well of course! All Actual Inventors know this as fact. I mean just from logic it makes sense. If I add a new fangled tire part to my bicycle, it’s a new a machine as far as I am concerned.

    In fact if I add any new part to any existing machine it becomes a new machine. Software when added to a existing computer is adding a new part to an existing machine, and thus the computer is a new machine.

  15. 253

    IANAE,

    You obviously have no clue as to what goes on in this art area.

    Back to your tower.

  16. 252

    Night, I am familiar with the cases going back to Story and the ice cutting machine. One cannot claim the function or operation of a machine. One can claim the machine. Once can claim a process. But not the operation of a machine.

    Essentially these claims take the form of means for achieving a function or a result. The vices are twofold. If the specification discloses one machine for achieving the function or result and the claim claims all means or methods, the claim is not supported and further is indefinite.

    If, however, the inventor has invented a new process, the process is independent of apparatus. It achieves a new result by a series of steps or acts.

    The battle over claiming far beyond the invention disclosed is a never-ending one, but it is important. The issue here, therefor, is central. It is important. I take it seriously.

    Claiming a programmed machine essentially is claiming a computer for performing the programmed functions. It claims the function of a machine, the programmed steps, but not as a process. As such, its claims are not limited to and cannot be limited to any particular use. They cover all uses, precisely what the law says one cannot do.

    I can go on-and-on on this topic, and I have before. Rich, as you know, has been central to overturning all these well accepted doctrines. At least at the CCPA and Federal Circuit levels he was successful. But any time one of his doctrinal reversals reached/reaches the Supreme Court, he was/is/will be emphatically reversed. That is why I suggest his name will live on in infamy in patent law. He will not be considered its second founder.

  17. 251

    Now consider what Benson actually said and consider whether the Supreme thought there was any difference between a method of programming a digital computer and a programmed digital computer. The difference was discussed in the case, but the Supreme Court gave no indication that their holding would have been affected by the distinction.

  18. 250

    From Benson:

    "A digital computer, as distinguished from an analog computer, operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand.[3]Some of the digits
    are stored as components of the computer. Others are introduced into the computer in a form which it is designed to recognize. The computer operates then upon both new and previously stored data. The general-purpose computer is designed to perform operations under many different programs.
    The representation of numbers may be in the form of a time series of electrical impulses, magnetized spots on the surface of tapes, drums, or discs, charged spots on cathode-ray tube screens, the presence or absence of punched holes on paper cards, or other devices. The method or program is a sequence of coded instructions for a digital computer.
    <b>The patent sought is on a method of programming a general-purpose digital computer</b> to convert signals from binary-coded decimal form into pure binary form. A procedure for solving a given type of mathematical problem is known as an
    "algorithm." The procedures set forth in the present claims are of that kind; that is to say, they are a generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another. From the generic formulation, programs may be developed as specific applications.

    "It is said that we have before us a program for a digital computer but extend our holding to programs for analog computers. We have, however, made clear from the start that <b>we deal with a program only for digital computers.</b>

    [And quoting the presidential commission]
    "Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. <b>Direct attempts to patent programs have been rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further and should not be permitted."</b>

  19. 249

    Tell him MM sent you

    Apparently, someone has already made the introductions.

    Gene’s response if fitting:

    Thanks for letting me know BD.

    I have no idea who Malcolm Mooney is, but that it an example of the type of comment that would not be acceptable on IPWatchdog.

    The fact that I engender such hxtred suggests I am doing a lot of things correct. The fact that this person feels the need to attack me personally rather than attack my positions speaks far more about him then me. The fact that Patently-O tolerates such a comments is curious. This is the type of mindless nonesense that makes intellectual dialogue on the Internet nearly impossible.

    Cheers.

    -Gene

  20. 246

    Ned,

    I suggest some law school for you. If the part of Benson (Supreme Court) decision that is something you are depending on, but was not a part of the holding of the case, it is not a matter that the lower court overturned the Benson case.

    Not every minutia out of a Supreme Court case is so binding.

    You may want to review the Benson case again to see what the critical question was that was asked of the Supreme Court, what Their particular answer was to that explicit question, and then realize that anything more was fluff and is merely persuasive authority.

    The current courts have spoken and provided holdings that you just don’t seem to want to take for what they are worth. I understand your renegade feelings, but please stop mischaracterizing law. It seems that your feelings ar running rampant over your rational thoughts.

  21. 245

    Max, the Supreme Court cases are not confusing. They ban the patenting of abstract ideas, etc. When an algorithm is untethered to a specific use as was stated in the opening paragraph of Benson, it claims all uses and that is patenting the abstract idea.

    It is that simple.

    In direct conflict is the Rich line of authority that would hold a programmed computer patentable. That would effectively overturn Benson. In fact, In re Benson held that a programmed computer was patentable. That case was overturned. Alappat reinstated it.

    No you tell me, just how Alappat is good law?

  22. 243

    Ned, you might not be confused by SCOTUS caselaw but Dennis told us at the outset that he was. Was he being disingenuous or have you succeeded in this thread in disabusing him of his confusion.

    As to UK and EPO, I rely on the entire body of caselaw in the two jurisdictions. For the EPO, to meet the eligibility criterion, you need only “technical character”. Prima facie, a business method as such lacks it but a business method claimed as implemented on a computer does have it.

    The UK snorts that this distinction is intellectually dishonest. You (I imagine) would agree.

    The UK has to be “intellectually honest” on eligibility because it lacks the strict obviousness filter that the EPO relies upon to recover from its apparent laxity on eligibility.

  23. 242

    STILL no answers to this question!

    A multi-hundred comment thread, and a new thread along the same 101 lines – and yet, the removal of ethical constraints merits no discussion, no comments…?

    Does anyone else find this alarming?

  24. 241

    Ah, the not-unexpected fallacious arguments of IANAE.

    I do not miss your style of postings, as slippery as they are.

    I do not have to argue merely as you suggest. I only have to argue (correctly) that my changes have created a new machine. (the otherwise let me know has already been let known – please see Ultramercial and please feel free to comment upon that – as I have repeatedly beckoned). [Game noted and avoided]

    It is a simple (and elegant) argument that avoids the briar patch that you beckon with.

    But thank you for the compliment of commitment – no matter how much of a non sequitur it may be, it is polite of you.

    Let’s pretend that we have already taken this line of discussion to the same place that has occurred in the past and realize that your sophistry will not avail you. That way we both can save time and maybe focus on moving an actual discussion forward. I do not think I will convince you to change your ways, and I know your sophistry will not convince me to change mine.

  25. 240

    You say it is a different view anon, but really my view was formed speaking with some of the top people in the field regarding 101.

    And, I think if you give it a try on, you’ll see it reduces all these issues into a modern conceptual framework.

    Ned, I really don’t get why you are so hung up on the process vs. machine business. Re-read Deener and re-read the line of cases for why a method of a machine is needed. A can be build to carry out the software that is special purpose to that particular method. You then have a machine sitting there just like the blowers in Deener that can carry out the method. I just don’t see a difference between Deener and infromation processing. The represented information are the grains of wheat.

    Benson is a monster. What is math? What is a natural law? What are these things but fabrications in your head. They are informatin processing methods and machines that we use to understand the world. That’s it my friend. All of it is artificial artifice and if you recognize that then you see it is all a matter of saying I think this part of your machine is too valuable to allow you a patent, which was exactly the issue in Walker.

  26. 239

    Ned,

    Take note of how MaxDrei has positioned his argument.

    He makes no (well almost no – we will get to this point) fallacious points as foundational elements that are easily knocked away, and thus a discussion can proceed.

    MaxDrei, a qualm I have – and this is more from a lack of understanding on my part on the history and current state of UK/EPO law, is how the current UK decision (that was brought up and discussed on another recent thread) fits into the notion of 101/103 conflation. That is decidedly not the holding that I derived from the UK positon, rather – the holding I obtained was very much in line with a separation of 101 and 103 and a confirmation of the more US stance of a wide open 101.

    The only other qualm is to watch for your tendency to slip from US Law to non-US law and conflate the two. You seem to be well holding that difference so far.

    Otherwise, I am in concurrence with you that the only lack of clarity is the unknown that the future brings (isn’t this always the case?). The existing stance and history of the Supreme Court is very clear. The existing stance of what the law is today is very clear.

    It becomes unclear only for those who want it unclear, for those who want it to be something it is not – the obfuscators, the dust kickers, the blatant l_iars about facts and court holdings.

  27. 238

    Max, Bilksi killed off the Rich business-methods-R-fine era in the US. Prometheus is about to kill off the Rader mini rebellion against the MOT.

    Alappat remains, but it is in conflict with Benson. It too will fall. Give it time.

    All is well here in the US.

    The people who cling to Alappat are what some have described as bitter clingers to an orthodoxy that has had its day, Gone with the Wind, so to speak.

  28. 237

    “adding the additional memory and adding the additional processin gcability and adding the additional programming is clearly changing the machine.”

    LOL, I have to admire your commitment.

    Yes, if you find a new way to improve the processing or memory scalability of the machine, go ahead and claim the machine.

    Otherwise, please let me know when you’re before the Federal Circuit, arguing that your software is patentable under Alappat as a newly-configured computer because it happens to require more RAM than your computer came with (but not more than your computer was built to support). I would love to see that. It’s an even funnier argument than “a human brain wouldn’t be able to do it fast enough”.

  29. 235

    And the entire “Turing-complete” philosphy is deliberately obtuse because adding the additional memory and adding the additional processin gcability and adding the additional programming is clearly changing the machine. There simply is no way around the fact that a new machine results from adding programming that configures a machine. To attempt to hold otherwise must be exposed for the chicanery that it is.

    The fact that a machine is built to be changed in no way captures the fact of just how that machine may be changed. Those future changes deserve their own recognition, their own right to be patented every much as any other set of building blocks. “Deliberately obtuse,” – yes that is a good label for the anti-software patent crowd.

  30. 234

    Can you truthfully say that the physical machine is unchanged if someone decide to change the physical cicuits and make some of the parallel physical circuits into a different configuration of parallel and in series circuits and add/subtract to the circuits not in use, make some of the in series cicutis into a different configuration of in series and parallel circuits and add/substract to the circuits not in use?

    I can truthfully say that.

    Maybe you’ve never seen inside a computer before. The changes you’re talking about are little transistor switches built into the machine, that are designed to be turned on and off. They’re put in at the factory on purpose, so that the machine can be “reconfigured” in pretty much whatever way you like. For the purpose of data processing. Turning them on or off doesn’t make a new machine, it’s making the machine do one of the things it was designed to do in the first place.

    Spend the day at the beach. You get a tan. That’s a physical and chemical change. Are you a whole new person? Of course not. You were always a person configured to respond to sunlight in that way. It’s not even a “new” use, really. It’s a functionality that was always built in, from the moment you popped out of the factory.

  31. 233

    Let me correct the both of you (again – although NWPA is not addressing this point in his attempt to address a different angle of the 101 debate):

    You absolutely acknowledge the basic proposition that the programmed machine is operating differently.

    The programmed machine is operating differently because it is different. In order to reach the point of enabling the process being discussed by NWPA (whose viewpoint onthe issue must be recognized for what it is a – a different view), the machine must be changed. To hold otherwise is to contravene fact and law based on that fact.

    Let’s keep things straight (and honest).

  32. 232

    Reverting to the subject of the thread, Dennis’s confusion, I’m sceptical that there need be any, really.

    It reminds me of the situation in Europe, on patent-eligibility of mental acts and programs for computers. Under pressure from the UK, the British EPO President, Alison Brimelow, asked the EPO Enlarged Board of Appeal to resolve a contradiction in the software caselaw of the EPO Boards of Appeal. Back came the answer “There is no contradiction, just a progression in the caselaw, as technology evolves”.

    I think neutral observers can discern just such a progression in the caselaw of the US Supreme Court. The issue for you is whether one can predict what SCOTUS would decide, if ever your claim were to be up in front of it. People lament that Bilski provides no guidance, but even a 5:4 split is a powerful indicator of what would happen to subject matter that is outside the consensus envelope of what is today eligible and patentable.

    What I’m impatient to learn is how SCOTUS will divide up issuability, between eligibility under 101 and patentability under 103. Will its method be closer to the EPO solution(favoured by Rader CJ) or to the UK approach echoed here by MM.

    Recalling something in a decision – where was it – about business method subject matter needing to be technologically inventive, I would put it another way. If eligible subject matter is technologically obvious, but in some other way (financially, commercially, sociologically, psychologically) ingenious, will this category of ingenuity be enough to get it through to issue despite its being obvious technologically.

    In keen anticipation of the next SCOTUS Decision….

  33. 231

    The machine itself is unchanged.

    Simply and completely, WRONG.

    This is a fact.

    This is a law.

    Ned, you are guilty of misstating both when you posit such.

    You MUST be clear on this. The only sophistry involved here is in the attempts to make this fact and the law based on this fact something that it is not.

    In order to help you bridge your understanding, try to think of a box of physical circuits; some set to be in parallel, some set to be in series, some not even set at all. The machine is the box. Can you truthfully say that the physical machine is unchanged if someone decide to change the physical cicuits and make some of the parallel physical circuits into a different configuration of parallel and in series circuits and add/subtract to the circuits not in use, make some of the in series cicutis into a different configuration of in series and parallel circuits and add/substract to the circuits not in use?

    Ultramercial is clear: the equivalency of software to firmware to hardware is a FACT. The point you strive for in direct contradiction is a point you simply will not be able to own.

    No matter how many times you state otherwise Ned, your statements must be recognized as l_ies and distortions.

    I urge you for your own sake to recognize this and to adapt your pooicy stance to an appropriate view of actual facts and current law.

    I urge you to stop the games.

  34. 230

    “Doing something different.”

    You constantly say this or its variant. Again and again and again. You absolutely acknowledge the basic proposition that the programmed machine is operating differently.

    When you say that information is being transformed, you describe an operation. It is a sequence of steps or acts that take an input, transform it and provide an output. This is an operation. It is a process.

    You say it again and again and again and again and again and again and again and again and again. But you refuse to recognize what you are saying. Think about what you’re saying the next time you say it.

  35. 229

    Almost all machines can be configured to operate differently. All.

    Nearly all molecules can be configured to operate differntly.

    Nearly all chemicals can be configured to operate differently.

    Nearly all mechanical devices can be configured to operare differently.

    Nearly all ANYTHING PATENT ELIGIBLE can be configured to operate differently.

    Your point here FAILS.

  36. 228

    This is not that difficult. The fact is that all of this is made up in your head. There is a machine sitting over there that is doing something useful. And you come along and say that machine cannot be patented as I say it is abstract and a law of nature. And, the other thing you are saying is because I could transform your machien into software plus a general purpose computer I will not give a patent. (And, again under this rule all ee patents go away.)

    All of that is in your head. It boils down to saying, we do not want to allow such a broad claim because what you have is so valuable. OK. That is a discussion we could have when to apply that standard. And as I said information processing does not have the same characteristics as the methods in Walker.

    It is that simple. The rest of this is nonsense fabricated by policy based people who were educated prior to the modern information revolution.

    And, Dennis, if you or your students are confused the whole ball of wax is right in this one post.

  37. 227

    “Wait!!! So are you saying if I use a machine, that is pretty much a vacum cleaner to suck prairie dogs out of their holes, I can’t get a patent on that?”

    Not a valid patent, no. You might get a claim to the method, unless a prairie dog is an obvious modification of the prior art dust bunny.

  38. 226

    “The fallacy of the Turing-complete situationshould also be highlighted, as Turing-complete – in its true sense – can never happen – infinite time and infinite tape can never happen.”

    Now you’re being deliberately obtuse.

    Obviously infinite time and tape can never happen, but you can add as much memory to a garden variety computer as you would ever need, and you’d be amazed at how fast you can cram data through a processor or twelve. Even theoretical Turing machines can’t run on truly infinite tape, because halting is kind of a big deal.

    The term you’re looking for is “finite but unbounded”, which is math speak for “as much as you could ever dream of needing”, and which can actually be done in this context.

  39. 225

    I think the problem is Ned that you do not understand that what you term math and applied math are both just these things that your brain has made up. At the end of the day any method that transform information is not a math in the sense you mean because the sense of math you hold is illusionary. The only issue is whether to prevent someone from claiming an information processing method because it is so valuable. That is the only issue. I wish you would grow a bit in your understanding of these matters.

    Also, in terms of particular machine. Look, again this is a conceptional problem on your part. The general purpose computer is simulating other machines. That is what it is doign. That is irrutable fact. That is how Johnny von Neumann thought of it. One can always build a special purpose machine to run these information processing methods. The problem you are having is that the operations and details are so small physically that you cannot deal with them conceptually.

    Sorry, Ned, but the reality is that either you are a troll or you need to grow and learn to understand these issues. New technology is not meant to be rammed into old conceptual frameworks. The conceptual frameworks must grow.

    You never did answer me about the ee patents all going away under your framework. Ok, so your not Richard Stern. But I’ll bet that you have drank his cool aid regarding 101. Your arguments are very similar to his, and I get the same headache when I read your posts as when I used to argue with him.

  40. 224

    Well if you count Slavery as trickery.. where in there own people sold them out.. Then it must be Slavery.
    But in the real world Slavery needs to be defined by a Contract that is valid, notarized, dated correctly, and not forged.
    And lets not forget the premise where they claim the voided Contracted person is so valuable LOON must mean something else. Who would Box a LOON?

  41. 223

    “Configured to.” That is the question. Whether the machine configured to “operate” differently is a different machine.

    Almost all machines can be configured to operate differently. All. Can we repatent every machine with a new configuration? No. Once this was clearly understood, but not anymore.

    “Configured to” can be the equivalent of for “means for” to define new structure. But, in truth, the Sophists use “configured to” when software is involved solely in the sense that the machine is configured to operate differently. The machine itself is unchanged.

    That said, the machine, configured to operate differently, can be claimed as a process if the operation is inventive. But, we all know the reason the Sophist avoid claiming software inventions this way. The law is clear that the process claims must define a new, real world result. The Sophist avoids this by claiming the “configured to” machine as a new machine, thereby avoiding the requirement of a new result.

    So what are the real world consequences of claiming software in the form of a programmed machine not tied to a specific application? The answer is quite simple. Without limiting the claim to a particular use, all uses are claimed. This is in effect patenting the software per se, patenting mathematics per se, patenting abstract ideas per se. This is the truth. And everybody knows It.

    The Sophists had Judge Rich in their back pocket. They have Judge Rader in their back pocket. They have the Patent Office in their back pocket. But they do not have the Supreme Court in their back pocket.

    We will call it as we see it. The advocates of re-patenting the computer every time it is programmed to do something new are Sophists and they know it.

  42. 222

    Actual Inventor,

    I will take you to task for falling prey to the sophistry of those wishing to mistate law and facts:

    “After all I am pretty sure the machine is still pretty much doing what it was always capable of.”

    Am unprogrammed machine is not capable of doing what a programmed machine is capable of doing. It must be programmed in order to be capable. Thus there is a new capability gained.

    You have fallen to the “House Fallacy.” What a computer is actually capable of is being changed in a way that is far faster. It is this ability to be changed that is present in a machine (and the fact this ability remains even after successive changes should be kept in mind).

    The fallacy of the Turing-complete situationshould also be highlighted, as Turing-complete – in its true sense – can never happen – infinite time and infinite tape can never happen. By fact and by law the ideals pushed by the anti-software patent crowd in their “turing-complete” agendas simply fall flat and that obfuscating argument is better left for its own multi-hundred comment thread.

    As Alappat holds (and the facts support), the programming actually does create a new machine. Just because the creation is at a level unseen by human eyes, does not mean the creation of a new machine has not taken place. It has. This is a fact. This is the law.

  43. 221

    Note: Fair Warning – this comment is on target for the actual thread content as posted by Dennis and is not meant to be a enjoined in any derailment of mistatements of current law. As such it very well may be the target of those who wish to obfuscate what the law actually holds today.

    I am surprised that Dennis has not identified the political and philosphical battle evident in the string of cases on patent eligible subject matter.

    From an academic standpoint, the fallacy of the highest court of the United Stated being above any such political and philosphical influences can be readily noted in this string of Patent cases (the accusation of the court members that the other side is engaging in unwarranted judicial activism is quite evident in the 5-4 partisan bickerings). The position that Stevens takes is ideal for such a discussion.

    Originally slated to write the majority opinion in Bilski, his detailed “concurrence” (and actual dissent, given the 180 degreee difference from the actual majority position) is a manifesto of a philosophically driven desired outcome.

    Charting Steven’s views and their positional movement from Majority to Minority provides a clear and unmistakable view of just what the law holds as patent eligible subject matter.

    And just as clearly, the direction given by the Supreme Court to the CAFC to rechart its position is clear. That recharted postion is also crystal clear.

    As noted (and as notably avoided in this string), the case of Ultramercial clearly outlines the new position in law on patent eligible subject matter.

    Clearly, the takeaways are – that 101 challenges should be few and far between, and that the wide open gate of 101 is what has been mandated both by the Constitution and by the governing laws as written by Congress; – that business methods and “software” patents are not categorically exlcuded and must be evaluated on their individual merits – exactly like any other patent eligible item; – that Alappat and its specific holdings that a programmed computer is structurally a new machine is binding law; that the equivalency of hardware-frimware-software is siimply undeniable, and thus software must be treated as a component in its own right.

    The 101 issue is difficult only when you close your eyes to what must be. When you open your eyes, it is amazing how clear the picture is.

    It can be captured in a single word: Scoreboard.

  44. 220

    As the thread has breached the 200 comment level, the “reply” strings have predictably started up again.

    Dennis please note.

  45. 219

    But constant misrepresentation and misunderstanding is quite another.

    Game spotted: Accuse the other of your own behavior.

    Game spotted: Delete those that point out the weaknesses in your position.

    C’mon Ned, you can be better than this.

  46. 218

    I am still hopeful that Ned will realize that actually addressing the questions can advance his agenda.

    I am still hopeful that Ned will realize that leaving the questions unanswered leaves the backdoor open to the defense of his kingdom.

    I am still hopeful that Ned will realize that he can actually and objectively evaluate everything before him and be in a better position to advocate the policy changes that he desires.

    I am still hopeful that Ned will realize that trying to change law by misrepresenting that law only works to Ned’s detriment. Postulating facts that have not been accepted (notably on this topic, the holding in Alappat that we have discussed almost civilly on other threads) only leads to an unsustainable position, as those false facts and errant positions of law cannot sustain scrutiny.

    I get that Ned wants a different outcome. I get that Ned believes the law should be different. But Ned, as an advocate, needs to be abale to objectively survey the law and facts of the situation. Ned needs to recognize that others recognize the games he plays and he needs to stop those games.

    Yes, I have been polite and positive to Ned. Yes, I have been obstinate about getting answers.

    Obviously to the Ogres that inhabit this site, this behavour “infringes” on their domain and they are unhappy about it.

    However, only Ned has advanced olive branches. And while I do not accept olive branches with the condition that foundations of discussion not be explored further (the answers must still be forthcoming), only Ned seems to actually want to move forward. When Ned realizes that the discussion he wants to engage in must include the law as it actually is and the facts as they actually are, he will be able to put his policy-driven changes in a proper context of a desired new state of law. When he realizes that he must frame his position appropriately, then that position will not be so attacked. When he realizes that he must approach his desired outcome in a different manner, he will realize just how ineffective the games he plays have been (and there is no doubt he learned this sophistry from Malcolm).

    As for Malcolm and his meltdown, that is one huge “WAAHHHH WAAAHHHHHHH you are picking on me” pile of c_rrp, best shoveled off into the hovel from whence it came.

  47. 217

    Slavery…?

    Really?

    And the connection is…?

    Or are you advocating anarchy and the acceptance of no laws?

    Or just the acceptance of laws you like?

    Please grab your bucket of popcorn and enlighten us.

  48. 216

    Software makes a machine operate differently. Operate. That is the key word. The machine is not new. The operation is. This is simple and self evident. Can we move on?

    No.

    Software mackes a machine operate differently because the machine IS different.

    Accept alappat and then we could move on.

    This is Ned’s offer to move on withot critically looking at his postion once more. A position that has been rocked. A position that has been questioned with no answers forthcoming. The only thing wanted is to “move on” – but to move on with Ned’s incorrect foundation still in play.

    The answer Ned, is no.

    There are simply those who do not accept your version of reality and know, KNOW, the correct way to view the law, based on actual facts.

    The machine is different when “configured to.” That is why it can then operate differently.

    We can move on when you stop misstating the facts. We can move on when you stop misstating the law.

  49. 215

    NOW PING,
    I am about to find out what was soooooooo scary.. was it Gloucester, The two October Letters, The Hog, UT, The three now count em three Logs? The Trade Secret? Or was it the Secret of who I am and what they have been doing with it? Could it be the Trademark? Could it be the Copy Rights,the Coast Guard? The forgeries, the embezzlement, or how about extortion? The Lawyer and the bankruptcy… who is on that bankruptcy? How about all of the above… ?

  50. 214

    Again and again in this and other threads one sees confusion between a machine and the use of a machine, between math and the use of math to produce a new result.

    Because of this, we tend to talk past one another. A good example is my conversation with Night. I agree with him that applied math is patentable. But he never seemed to understand that. Never. The only explanation I have for that is this constant confusion.

    Software makes a machine operate differently. Operate. That is the key word. The machine is not new. The operation is. This is simple and self evident. Can we move on?

  51. 213

    Amen.

    I have stopped talking with Anon, among others, because of their constant distortions. Stubbornness is one thing. Occasional misunderstanding is understandable. But constant misrepresentation and misunderstanding is quite another.

    We really need an ignore function here to “delete” posters such as Anon, AI, Um No, etc.

  52. 211

    IANAE: “Thing is, when your process runs on machines from ten years ago (or would if they were only faster), and when the prior art machine is Turing-complete, it’s pretty difficult to make a convincing case that you’re not just using an old machine to do something it was always capable of doing.”

    Wait!!! So are you saying if I use a machine, that is pretty much a vacum cleaner to suck prairie dogs out of their holes, I can’t get a patent on that?

    After all I am pretty sure the machine is still pretty much doing what it was always capable of.

  53. 210

    “What’s your point, AI?”

    Processes that are so called (Business methods) and Information processing are within “The Useful Arts” and therefore are Constittional.

    Of course I would be glad to elaborate. But warn your buddy Nedo first to cover his eyes because for him this can get very scary.

  54. 209

    NWPA: “Ned are you Richard Stern? You certainly remind me of him.”

    On behalf of Ned I would like to request that you please don’t bring up Stern. That will remind Ned that he once championed Sterns “Useful” Arts theory. And that is the one discussion Ned never wants to take place again. Thus he face humiliation and the total defeat of his agenda.

  55. 207

    Why? Because anon asked you a question?

    Anon just so happens to be the only one left in this patent community that won’t deride and insult you.

    Anon has been polite and positive giving you the benefit of the doubt and trying to get you to post on the issues so you can advance your arguments.

    Now you turn on anon simply because a fact was pointed out that there is a growing list of questions you refused to answer during debate?

    How shallow and immature of you Ned.

    You can’t expect anyone to take you serious with this kind of behavior.

  56. 206

    Don’t get too excited. Ned is terrified of the Constitutional question. He will never step into that ring again. So it remains an irrefutable FACT that business methods are within the “Useful Arts” and there is not a dang thing Ned can say about it. ;-)

  57. 205

    Don’t get too excited. Ned is terrified of the Constitutional question. He will never step into that ring again. So it remains and irrefutable FACT that business methods are within the “Useful Arts” and there is not a dang thing Ned can say about. ;-)

  58. 204

    “Unless of course that one makes the constituion argument, but that does not appear to fly since the SCOTUS had Bilski in front of it and did not so rule.”

    Yes this is correct and the SCOTUS had the Stern Brief and completely ignored it. Business methods, like software is within the useful arts and no one can refute that or will dare try.

    Ned tried once and was quickly shot down. Now if anyone brings up useful arts he goes into a fit like Curly on the Three Stooges.

    That debate is over.

  59. 203

    It’s the famous but rare “I proved you wrong. There I proved it again, there I proved it again 7 tmes now” Malcolm Magic Trick!

    What points do I get for spotting it?

  60. 201

    Yes, but did you see the fight that the Stevens put up?

    It must have irked him so to lose the majority opinion and be relegated to back to back losses on patentable subject matter, after so hoping to pull out another Bensonesque debacle.

    At least he writes long dissents.

  61. 200

    Actually, you know for some reason this reminds me of one of my first serious exposures to Lisp. There was a guru there helping get

    ZZZZZZZZZZZzzzzzzzz.

  62. 199

    Actual Inventard mental thought processes do change the brain’s shape, ( a body part) and therefore are physical acts

    What’s your point? Is your point that the Supreme Court is wrong when they note that processes carried out mentally are not eligible for patenting? Or is your point that the correct use of the machine-or-transformation test requires a finding that processes carried out in the mind are patent eligible (and therefore the Supreme Court is wrong when they state that processes carried out mentally aren’t eligible)?

    What’s your point, AI?

    You’ve been harping for years why we all must listen to the Supreme Court’s majestic holding in Diehr (at least, the holding you imagine). So explain to us now why we must ignore the Supreme Court when they tell us that processes carried out mentally are not patent eligible.

    Either at, or explain to us what your point is.

    [grabs bowl of popcorn]

    I’m looking forward to your response, AI. I’m predicting it will be the usual worthless collection of irrelevant crxp, dxst-kicking and ad hominems. But go ahead and surprise me with something coherent and intelligent. Maybe you’ll even impress your imaginary friends “Les” and “anon” and Shilly Willy who somehow are never there to defend your typically defenseless swill but are always there to join you in the ad hominem pxss contest.

  63. 198

    whether the law is on my side or not is completely irrelevant to you.

    Sorry Malcolm, the law being completely irrelevant is your domain. You even have this branded in the “whatever” conflation game you like to play.

    Anon may be persistent, but his persistence is not in the games you and the Evil One play.

    And as for blog trolls, that term also suits you and your sister in arms better, as you act like Trolls, being offensive and trying to scare away those that point out your weaknesses.

    So your comments accusing Anon of what you do are readily seen as fallacious. As Anon points out, one of your favorite games is the Accuse Game, and we see it here in this comment.

    Didn’t Doctor Freud provide a prognosis of you awhile back? Anyone have that link?

    Anon has also stated that only 6 has been banned. MaxDrei and IANAE had their games quashed and left of their own accord and you and Ned were graciously invited to see how long your hijinks would be tolerated. That’s quite a different story than your “evidently, banned immediately” story. And it’s not “disagreement” that is banned, but rather “intellectually dishonest” games (like the Mischaracterization Game.) And just like the one you just attempted to foist.

    So MM, playing loose with facts and with theory gets you nowhere. That’s the problem with trying to play your games on a law blog – there are bound to be people who will see through your ogre-ish ways and will toy with you or simply smack you down.

    You really aren’t all that clever, and most of the time, you are not even worth the while to engage – but you seem to think that your shotgun posting of the similar comment like what 4 or 5 times throughout this thread may escape attention. I claim this little corner of the blog to sweep you into the trashcan that you belong.

  64. 197

    “Yes, a general purpose computer is a specific machine,”

    It just amazes me that anyone would ask such a question!

    This is not even does the earth revolve around the sun type question.

    It’s common sense!

    Is a washing machine a specific machine?

    Is a sewing machine a specific machine?

    Of course! Ask 100 people on the street and 99.9% will say yes!

    Oh and the rest that say no, have Neds DNA and 6’s IQ

  65. 196

    “For AI to be such an ignoramus and fool, you sure are having a hard time putting together any cogent legal argument with substance to ovecome his point of view.”

    Ned will never EVER broach this subject and we all know why.

    I dare say “Useful Arts” will become Neds version of running up the hill like MM did from NAL and the Printed Matter Doctrine.

  66. 195

    “Strong argument? It was not me who insisted that abstract processes can be patented. You did that, even after both MM and I asked you for confirmation.”

    Oh this rich! Coming from the King of confirmation non compliance!!

    Ned, how many times have you been asked to confirm that

    There is a MOT requirement?

    Business Method exception?

    Technology requirement?

    Mental Steps Doctrine?

    Useful Arts Definition that excludes processes for business or software?

    and not answered anyone?!?!?!?!

    Ned, how many time have you been asked to confirm

    Biski 11?

    Biski 14?

    AIA?

    Diehr CAT and more and just &&%**^^ed everyone off???

    You are the height of obnoxious hypocrisy!

  67. 194

    “If someone invents a new, useful and non-obvious thought process, why shouldn’t it be patentable? Sounds like a new use of an old machine (une noggin)to me (see 35 USC 100).”

    Anyone with even a basic course in Neuro Science or even Cognitive Psyche knows PET scans and other brain imaging technologies have proven the plasticity of the brain. So mental thought processes do change the brain’s shape, ( a body part) and therefore are physical acts.

    Les, while you are right on time with modern nero science you are no doubt ahead of your time in the patent legal world. Nonetheless your thoughts are a breath of fresh air in a blog polluted by MM and Neds daily emission of gas from the anus.

  68. 193

    MM: ” All of the “actions” that follow the ineligible claims we are discussing are in the prior art or covered by the licensed/exhausted patents of third parties.

    So you admit there are “actions” beyond merely thinking that are part of the process. This literally means we are no longer talking about a mere mental process. The fact that the steps/actions that are physical may be in the prior art is of no legal consequence. Diehr Court told you:

    “The “novelty” of any element or steps in a process, or even of the <450 U.S. 189> process itself, is of no relevance in determining whether the subject matter of a claim falls within the §101 categories of possibly patentable subject matter.12

    It has been urged that novelty is an appropriate consideration under §101. Presumably, this argument results from the language in §101 referring to any “new and useful” process, machine, etc. Section 101, however, is a general statement of the type of subject matter that is eligible for patent protection “subject to the conditions and requirements of this title.” Specific conditions for patentability follow and §102 covers in detail the conditions relating to novelty.13 <450 U.S. 190> The question therefore of whether a particular invention is novel is “fully apart from whether the invention falls into a category of statutory subject matter.” In re Bergey, 596 F.2d 952, 961, 201 USPQ 352, 361 (CCPA 1979). See also Nickolas v. Peterson, 580 F.2d 898, 198 USPQ 385 (CA6 1978). The legislative history of the 1952 Patent Act is in accord with this reasoning. ”

    Further more to even make such a case would require you to dissect the claims into old and new steps. This is NOT allowed. Again, Diehr told you:

    “In determining the eligibility of respondents’ claimed process for patent protection under §101, their claims must be considered as a whole. It is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made”

    Deal with it!

  69. 192

    “Are Ned and MM the same entity? They both fall back on childish name calling and personal attacks when confronted with a strong argument….”

    Well, MM, AKA Malcolm Mooney is the original Sock Puppet Master, and inventor so it’s not impossible. But it’s true neither can handle strong arguments , especially based on logic and fact. Once it becomes apparent they are going to lose they just revert to juvenile name calling.

  70. 191

    “Pitty, there is a wonderful [imaginary] intellectual world out there that you don’t understand.”

    Newsflash, it isn’t that wonderful and it won’t get you that many chics.

    “He said he didn’t know.”

    Which is precisely what dictates your position on this issue today. You simply don’t know. You don’t know what the magic is that makes all these wonderful “information processing” processes new. Here’s a hint, it starts with M and ends with ath. Had he have simply told you on that day perhaps your entire life would have changed. You’d be slightly more disillusioned with programming sure, but overall, you’d be better off for it.

  71. 190

    “In the end, what the Federal Circuit did in Alappat was resurrect In re Benson, In re Bernhardt, both of which had been overruled by Gottschalk v. Benson.”

    Not really. They just called Chuck Testa.

    Just Chuck Testa.

    link to youtube.com

    They’re dead. Chuck Testa doesn’t resurrect, he taxiderms.

  72. 189

    “repeat a lie often enough and it becomes the truth”,

    Which “lie” are you referring to, why are you so afraid of it becoming “the truth”, and why do you believe that comments on this blog will matter one way or the other?

    I thought that your Master Gene Quinn’s blog was the only one that mattered. It seems we’ve identified another, uh, “inconsistency” lurking amongst your many bizarre statements.

  73. 188

    I am “obsessed” with … the proper treatment of legal argument

    All the evidence suggests otherwise.

    let’s just say I am “obsessed” with the truth

    Except you just proved otherwise. Do you want me to prove again where your obsession lies? Shall I start the discussion where you “obsession with the truth” dissolves into vapor and all that remains is your obsession with trolling this blog and attacking those who disagree with you?

    Do you really think Dennis will suffer a 90% drop in postings?

    You really do need to see a doctor.

  74. 186

    anon this sounds from a viewpoint that isn’t law

    As you’ve made perfectly clear, sockie, what matters to you isn’t whether the viewpoint expressed by a commenter is “the law” or not. All that matters to you is satisfying your deep obsession with a few commenters (each of whom “coincidentally” disagree with you) and their mysterious “agenda” which you refuse to discuss.

    Maybe you can ask Supreme Leader Quinn, whom you evidently worship as a paragon of blog management, if he approves of your behavior, i.e., trolling around and attacking commenters under ever-changing pseudonyms. Tell him MM sent you.

  75. 185

    What is imaginary information or data? It has to be processed on some machine be it biological or electrical.

  76. 184

    Well, you certainly put your cards on the table with that comment, Ned. Patent math per se? Well, at least we finally understand your position fully.

    I suspect that you were educated after modern physics and after modern information processing became part of the curriculum. An EE type that didn’t take the computer science classes nor the theory classes in math. Pitty, there is a wonderful intellectual world out there that you don’t understand.

    So, is Siri math per se? Is the software that can beat the world chess champion math per se? Is the software that can beat the Jeopardy champion math per se? Is software that can detect tumors math per se? Are the methods that your brain runs on math per se? Are all those cognitive science programs written in Lisp math per se?

    Actually, you know for some reason this reminds me of one of my first serious exposures to Lisp. There was a guru there helping get started modifying a huge system on a lisp workstation whose name escape me at the momeny. There was a huge page of lisp code on the screen and I asked him what it does. He said he didn’t know. He said it didn’t matter what it did below the level we are working on. All we had to do was focus on the logic of the page and how that was translated to action in the bigger system was not our concern.

    For the record, I did well in calculus and differential equations, and the theory of computation, and applied mathematics, and combinatorial mathematics, and many advanced classes in information theory and mathematics, and aritifical intelligence, etc. I understand the field very well, and have been taught by some of the greats in those fields.

    Cheers! I am off for the night. Yes, a general purpose computer is a specific machine, but after taking such a severe insult I don’t feel like explaining it to you as I suspect you already know my answer. Ned are you Richard Stern? You certainly remind me of him.

  77. 183

    sockie Because only people who have posted here before have any credibility….

    Nice try, sockie. The issue is personally attacking other commenters under numerous new pseudonyms aka blog trolling aka creating a “train wreck” in a comments section for the sole purpose of creating a “train wreck.”

    Have you asked your beloved leader Gene Quinn if he approves of this behavior? You should ask him. Tell him MM sent you with a special question, just for him. Let me know what he says. After all, he runs the best blog out there, according to you.

    Ask Gene what he thinks about such behavior. I’ll buy both of you a big bag of Cheetohs.

  78. 182

    who is obsessed with Ned and me.

    See my post at 4:36 PM (which you should have checked before this immediate post above).

    And you are still welcome.

    As for “obsessed”, let’s just say I am “obsessed” with the truth and the proper treatment of legal argument, of which you and Ned excel at messing up (and on purpose, no less).

    As has been posted – take away the posts of the vocal minority and blog posts on Patently-O instantly drop by 60% (for the vocal minority posts alone) and 90% (for those responding to and keeping in check the wildly incorrect musings of the vocal minority.

    Do you really think Dennis will suffer a 90% drop in postings? Gene, for all the unearned c_rrp you heap on him, has more character than that – and it shows in the qualilty and national reputation that that blog is earning (canyou say personal interviews with a veritable who’s who of the patent field?).

    Funny that, a blog with quality control of posts and you, Ned, 6, MaxDrei and IANAE cannot/will not be involved.

    Now that is a statement with substance!

  79. 181

    far less joy in responding to his posts and highllighting the inanity

    Except you’ve never actually “responded” to any of my comments, sockie, including those that were written specifically in an effort to engage you in the “substantive” discussions which you pretend to crave.

    We can prove that you are a dishonest blog troll with personal grudges and obsessions again, if you like. Let me know if you want to do that. I’ll post something with a conclusion that you disagree with, and you can “respond” with irrelevant goalpost moving gxrbxge. Are you up for that? Or do you just want to call me and Ned names and figure out a new pseudoynm?

    Let me know, sockie.

  80. 180

    Les: I am not arguing with you about what the law is. Im pointing out that the current law is absurd and unfair.

    There is a delicious irony here in that this is exactly what Ned does when current law points out the FACT that business methods and software are patent eligible subject matter.

    Only exception being is that Ned never acknowledges what the current law is and instead will dishonestly twist it to suit his agenda. And when confronted with this FACT he attacks and runs away.

  81. 179

    MM,

    Law on your side…? No.

    As we now all know, sockie, whether the law is on my side or not is completely irrelevant to you. As has become perfectly clear, other people here are free to ignore the law and you will ignore them.

    Your “issue”, quite plainly, is with me and Ned. You are clinically obsessed with everything we write and evidently believe that we have some nefarious “agenda” that must be stopped. And you believe it is up to you to “stop” us. Which would be funny even if you were capable of doing anything except for being a blog troll.

    Maybe you should see a doctor? Or you could simply stop posting here and return to the paradise of Gene Quinn’s cheetoh party where everyone who disagrees with you is, evidently, banned immediately.

  82. 178

    sockie : ?…and you want me to pick on Les

    Sockie, I just wanted you to demonstrate to everyone that you’re a hypocrite and a blog troll who is obsessed with Ned and me.

    Nobody will be surprised, of course, but direct incontrovertible proof of the sort you’ve so graciously provided is hard to come by. I’m sure Gene is proud of you.

  83. 177

    No Ned. It goes to support the fact that so called business methods, and information processing, are both within the useful art of the US Constitution. Now if you want to discuss the substance of that fact in a calm and intellectually honest manner, based on logic and reason, then I would be glad to extrapolate. You can get up to speed by reading my post at Oct 25, 2011 at 03:49 PM.

    However, if you are the truly the troll, and intellectually dishonest shill that your distractors have been able to successfully portray you as, I suspect you will behave as such, and not touch this topic with a ten foot pole.

    What happens next is up to you.

  84. 176

    35 U.S.C. 101 Inventions patentable.

    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

    Assuming the “program” involved is new and useful, when run on an old computer, it makes a new and useful improvement to the old computer and is therefore clearly patentable.

  85. 175

    An incompetent shill would still care

    Not necessarily – especially if the reason why he is incompetent is because he does not care.

    A great example is Ned, who evidently does not care how ineffective he is. If he cared, then he would recognize that actually answering questions would be a beneficial thing. Another example is given by the general adage of “repeat a lie often enough and it becomes the truth”, which is a game often played on these boards (again by Ned and by MM, who also invite those that stop this adage to go play elsewhere).

    We may be dicing up semantics though, as “trolling” and “shilling” may have appreciable overlap, and I am not as certain that a defintion of “shill” must include any degree of effectiveness, as you seem to be.

  86. 174

    “The better assumption is that they simply are incompetent. This would comport with the given evidence.”

    That assumption would comport with a lot of evidence here. But it’s irrelevant. An incompetent shill would still care, he’d just be bad at it. If a poster doesn’t care about shilling, he’s not shilling. He’s here to do what ever he does care about doing, which is most likely trolling.

  87. 173

    Les is not an insufferable pr1ck – and there is far less joy in responding to his posts and highllighting the inanity than there is in taking those who would put themselves up high on pedestals and dumping them on their heads.

    Your Welcome.

  88. 172

    What is Ned’s ‘agenda’…

    Only a fool, a ‘dissembler’ or someone purposefully playing games would ask such a question.

    Oh wait, I see who posted that question and it is self-explanatory.

    As far as “frightens,” more like bores. There is no substance to frighten (much like your typical legal arguments).

    As far as avoiding the “worthless exchanges,” don’t be so quick to judge the value(lessness) of those exhanges – patting yourselves on the back for vacuous statements and misrepresentations of law is nothing to be all jolly about, and I have noted several times you getting cross with Ned on those topics wher eyou are not all buddy-buddy. Further, on those topics of disagreement, neither of you ever end up budging, unless it’s budging from an obvious strawman position (yet another game perfected by the MM School of Logic).

    As far as knowing where the problem lies, that answer may be known to you, but it remains buried under the games that you hide behind. Games you choose, because after pounding tables, that is all that you have.

  89. 171

    Yes,

    Because only people who have posted here before have any credibility….

    no wait.. the Vocal Minority That Use Their Own Names Or Use Consistent Monikers (When Not Getting Caught Using Sockpuppets, That Is) do not have any credibility.

    And MM and Ned never rant about another commenter….

    [eyeroll – the old game of accusing others of what you do – gee, haven’t seen that one in like ten minutes]

    Carry on.

  90. 169

    IANAE, I fully agree.  But Alappat is en banc and the law until overruled.  

    The status of that case out of the PTO may have had an effect on the case.  The PTO wanted to construe the MPF claims as process claims, and at the time, the Federal Circuit had MPF claim construction in the PTO on their radar, pun intended.  They wanted to force the PTO to construe MPF narrowly.  Thus in this case, they construed the MPF claims to read on the ALU and barrel shifters of the CPU, and somewhat ignored the programming which was what was really claimed.

    In the end, what the Federal Circuit did in Alappat was resurrect In re Benson, In re Bernhardt, both of which had been overruled by Gottschalk v. Benson.
     But what is one to do when an en banc court effectively overrules the Supreme Court?

    Hopefully, the PTO takes a case back to the Federal Circuit that will allow it to revisit Alappat — soon.

      

  91. 168

    A flimsy rationalization. Or, if you prefer, “the court got it wrong”.

    Or better yet, the three of you (MM, Ned, and IANAE) are simply stymied because Alappat simply blows away your view of the patent world, and you really don’t know how to respond.

    Here’s a clue:
    Accept what the courts have said.
    Accept what the facts say.
    Stop pounding on tables.

  92. 167

    IANAE,

    Why would you ever make that assumption?

    The better assumption is that they simply are incompetent. This would comport with the given evidence.

  93. 166

    Nice,

    Advanced class of the Malcolm Mooney school of logic – call names and invite the other perosn to go away.

    Wow, that might convince…

    …no one.

    Run along now, Ned – you don’t want to be late for Hyperventilation and Conflation 206.

  94. 165

    For AI to be such an ignoramus and fool, you sure are having a hard time putting together any cogent legal argument with substance to ovecome his point of view.

    And again, don’t shoot the messenger.

  95. 164

    I have not read what Les said at 1:08. But in the past have agreed with everything Les has said. I will now look at this 1:08 that so disturbs you Mooney and tell you what I think.

  96. 162

    A flimsy rationalization. Or, if you prefer, “the court got it wrong”.

    See MM’s posts in this thread (I think) about whether a new CD creates a patentably distinct “programmed” CD player.

    Nobody in the world thinks a programmed general-purpose computer is a “special-purpose computer” or a whole new machine in any respect, unless they’re actively seeking to patent it. Even when those people are at home, they continue to use their “special-purpose” home computer the same way they’d have used a general-purpose one.

    If you’ve invented a method, there’s no reason why you should be entitled to claim “a machine that performs my method”, or “instructions for a machine to perform my method” without more. I think we’re on the same page here.

  97. 161

    Ned can’t answer any question that :

    1. Shines light on his no longer well hidden agenda

    2. Invalidates that agenda and all he is has come to shill for.

  98. 160

    “But, that does not mean or suggest that either the Supreme Court or Congress view BM to be within the Useful Arts. Quite to the contrary, that.”

    There is nothing to the contrary. All we know for a fact on the Constitutional area is that Congress and the Supreme Court has not acted to expressly make this one sub class of processes, ( so called business methods) unconstitutional.

    However, as I pointed out before, there is nothing to fear if you understand what Useful Arts truly means in the context of patents and our Constitution.

    You see, here in the USA, commerce is useful, and is the core foundation for the application of every invention ever issued a patent.

    I would go so far as to say commerce is the “Useful Arts!”

    Indeed this is what sets the Useful Arts apart from the liberal arts and social activity.

    (Even if you go back to 1789 all those first patents were for inventions being applied to commerce.)

    So, when you understand that the Useful Arts are for commerce, people can still do whatever they wish for liberal arts, fun, and social activity, including merely thinking without fear of being sued for patent infringement.

    But when a concept is applied to industry, or a specific marketplace, A.K.A Commerce, that is the realm of patents.

    Indeed, there is a reason our PTO is situated under the Commerce Department.

  99. 158

    that was the same reasction people had when machines become better at physical tasks than humans.

    Right. Was that ancient Rome? The civilization that rotted because of its inadequate patent system?

    One hundred bottles of lulz on the wall …

  100. 157

    Les, perhaps we agree. I am not so sure. Why don’t you read a post in this thread labelled “Night proposes.” I there include a quote from Shrader and a reference to Alappat.

    I think processes involving data transformation of measurements from the real world can be patentable. I am also open to patenting programmed computers that implement such processes disclosed and claimed.

  101. 156

    Malcolm, I find it amazing that Night continuously discusses transformations in time space but still does not recognize that what he wants to patent is math per se, divorced from time space, math that works only on imaginary numbers. Getting him to recognize this has been exceedingly hard. Reminds me of the “dunces” in college that simply could not hack Calculus or differential equations and became doctors instead.

  102. 155

    Les, we will agree that “natural phenomena, law of nature and abstract ideas” are not in the statute. I find it amazing that anybody serious contends that these atextual exclusions are to be found in 101.

    They are non statutory.

    I think Rich, in cleverly excluding 101 from Section 282 in drafting the new statute want to suggest to the Supreme court that patentable subject matter is a topic better handled in 102/103/112.

  103. 153

    “If one invents a new process, can one claim the machinery configured to automatically perform at least one step in that process?”

    Sure, if it’s a new machine. That’s always been the case, in every art, since the dawn of patents.

    Thing is, when your process runs on machines from ten years ago (or would if they were only faster), and when the prior art machine is Turing-complete, it’s pretty difficult to make a convincing case that you’re not just using an old machine to do something it was always capable of doing.

  104. 152

    But the method of Deener transformed matter regardless that it was performed by a human.

    I have been careful to limit my comments on this topic to claims that do not pass the MOT in the first instance. If a mental step or law of nature or some such is actually used to modify a physical step, then the claim passes the MOT and is patent eligible.

  105. 150

    That is the question …and that is essentially the question before the court in Alappat. If one invents a new process, can one claim the machinery configured to automatically perform at least one step in that process?

  106. 149

    Night, machine performing …

    Read your own words. Read them, by God.

    There is a difference between a machine and the machine doing something. One is apparatus that is capable of doing something. The other is a process.

  107. 148

    Night, regarding “All of EE can be reduced to A/D converters, a few fundamental components, and sensors with a general purpose computer doing all the reset. With your view of the world all the EE patens go away. Did you ever think of that?”

    Really? I have been consistently point out the patentability of methods that can be implemented on any of computers or circuits or the like. When the invention is independent of hardware, but transforms information representing physical phenomena, the invention is a process.

    Inventions related to computers, to circuits, to sensors, and everything like that, remain patentable. It is just that the invention of a circuit does not entitle one to claim all circuits/computers or brain implementations that can achieve the same result. There is a real difference between the improved circuit and a process.

  108. 147

    Night, when you say “Information takes time, energy, and space to transform. Information is being transform by the machine that performs the method,” I agree with you. I have given numerous examples of the kind of subject matter that clearly transforms information signals from one state to another. The only question we have is the form of the claim, and whether a programmed computer is patentable if it is part of a disclosed process that transforms signals.

    But when you say the Bilksi claims are patentable, you push the envelope, n’est pas? There were no machines involved in the Bilski claims.

  109. 146

    I do not see misrepresentations of any sort from Anon.

    Why should anyone care what you see? You’ve never posted here before and your comment is nothing but the usual sockpuppet ranting about another commenter.

  110. 145

    Night, you are of course right that the reason Congress did not ban BMPs is probably for the same reason the Supreme Court chose not to ban them: there was no clear definition of where BMP began and ended. Many briefs to the Supreme Court, and a lot of case law, said that while methods of doing business were not the stuff of patents, the technology that enables business is. Where is the dividing line?

    So, unless one is sure of a dividing line, best be careful. Both Congress and the Supreme Court are being careful.

    But, that does not mean or suggest that either the Supreme Court or Congress view BM to be within the Useful Arts. Quite to the contrary, that.

  111. 144

    “They do not care even if their Shilling is effective or not.

    They are here to Shill.”

    Protip: If they don’t care whether what they’re doing is successful, they’re actually doing some other thing.

  112. 143

    sockie, please see the following:

    Les 1:08 pm October 25:

    The Supremes got it wrong.

    Please prove that you aren’t a hypocrite
    (in addition to being a toxic blogtrxll) and start needling Les with your usual self-righteous baloney about following “the law”. Thanks.

  113. 142

    Shilly Willy: Those who Shill, do so relentlessly and do not … care for the law,

    Please see the following:

    Les 1:08 pm October 25:

    The Supremes got it wrong.

    Sockpuppets, please prove that you aren’t hypocrites and start needling Les with your usual worthless comments. Thanks.

  114. 141

    Les 1:08 pm October 25

    The Supremes got it wrong.

    Sockpuppets, please prove that you aren’t hypocrites and start needling Les with your usual worthless comments. Thanks.

  115. 140

    From a patentable subject matter perspective (35 USC 101), there was nothing wrong with the claims in Bilski. The Supremes got it wrong.

    What? The Supreme Court got a case wrong?????????!?!??!?!!??!?!?! Oh, heavens!!! The sockpuppets are going to come after you now, Les!!!!! The Supreme Court got a case wrong?!???! Wow. Just wow. You are in for a shxtstxrm, Les, because the sockpuppets simply do not allow people to ignore the law around here. And by all means stay away from Quinn’s blog. He’ll ban you immediately. The dude does not abide such blatant ignorance. Here come the sockpuppets, Les!!!

    [crickets]

  116. 139

    He has constantly slipped back into his agenda

    What is Ned’s “agenda”, sockie, and what aspect of Ned’s “agenda” frightens you so? As Ned has noted, we disagree about a great deal of things but somehow he and I manage to avoid the worthless exchanges that seem to inevitably occur when you, AI, or one of your other pseudonyms attempts to “discuss” anything. I say “somehow” out of kindness to you. I know exactly where the problem lies.

    As others have entreated, why not just return to your haven and stop stinking up this place with your incessant dxckheadedness.

  117. 138

    What Ned is neglecting to say is that because this is “nontextual”, which is also known as judicial exception or judicial doctrine. It means the SCOTUS should apply this only very rarely and with only the utmost need. And, since Congress did not exclude business methods and business methods have been eligible for patentability for a long time prior to the passage of the AIA that the SCOTUS should not under the current circumstances exclude business methods. It would be completely inappropriate.

    But, ole Ned there made it sound like Congress is going to rid him of business methods and the SCOTUS would just be doing Congress a favor. That way of thinking is not our system of governance.

    But, think whenever you read any of these arguments that the standard is that business methods are patent eligible and to exclude them would require the utmost need and the SCOTUS should apply exclusions as narrowly as possible. The SCOTUS is essentially acting like legislators when they do this and as such have to do it only when absolutely necessary and only in the narrowest way possible.

    Unless of course that one makes the constituion argument, but that does not appear to fly since the SCOTUS had Bilski in front of it and did not so rule.

  118. 137

    at the same time, expressly exclude business methods as well.

    A concession – of sorts.

    Ned, you are inching towards the light.

  119. 136

    Dear Canadian,

    I am afraid it is you that is reading past Ned’s views. Granted, the reading you would attribute is what a reasonable person would hold, but as you have read Ned’s rants, you would realize that he is anything but reasonable.

    So, I am afraid that Ned does not mean “but IS NOT THE EXCLUSIVE TEST. ” as you suggest. He has constantly slipped back into his agenda and pushed a meaning contrary to the one you and I would take. It is not merely enough that MOT is a clue, MOT is a requirement. Severla people have asked Ned to identify once and for all the legal basis of elevating this clue to his Shilled “requirement,” and he has steadfastfully refused to address the issue – either by once and for stating the actual legal basis of his position, or by surrendering that position as not legally supported.

    I wish he did mean that. I really do. I wish he would be clear and answer the questions put to him. I really do. You are not the only getting tired of Ned’s antics.

  120. 135

    James, and I might add that the exclusions (conditions of patent eligibility, not of patentability) of ” phenomena of nature, laws of nature and abstract ideas” is nowhere to be found in the statutes. Like double patenting, it is atextual. But, recently, of the professor posters here, IIRC, argued that Congress missed a great opportunity in the AIA to enact these exclusions into the statutory framework, and perhaps, at the same time, expressly exclude business methods as well.

  121. 134

    a cheap shot

    LOL. Because it is so unfair to expect Medicare recipients (at least those who aren’t in a coma) to understand that Medicare is a Federal program.

    Everything I said about proponents of software patenting is true. I’d love to discuss the distinction between, on one hand, CD players that behave in particular ways and have objectively distinct functionalities only because they comprise different CDs, and, on the other hand, computers that behave in particular ways and have objectively distinct functionalities only because they have comprise different software. I’d be happy to be discuss the issues with any non-sockpuppet commenter but not, of course, with Les, NWPA or AI because they are too dishonest and, quite frankly, too ignorant to carry on the conversation.

    Maybe Alun Palmer will return to pick up where he left off.

  122. 133

    From a patentable subject matter perspective (35 USC 101), there was nothing wrong with the claims in Bilski. The Supremes got it wrong. They kept confusing the issue with novelty and non- obviousness, which their guts seemed to tell them the Bilski claims did not meet. They wanted to reject because of obviousness (“isn’t this just hedging”?) and they made up some nonsense about undefined “abstractness”, which isn’t in the statute, in order to justify a finding against…

  123. 132

    “They are.”

    You guys probably thought that info processing methods where eligible for patenting.

    Nope.

    Just Chuck Testa.

    link to youtube.com

    Now I know why you guys keep thinking that info processing methods are patent eligible. You guys took em to Chuck Testa.

  124. 131

    MM Said: “The proponents of software patents remind me a lot of those strange white people who marched into public meetings not so long ago and demanded that the Federal government stay out of Medicare: simple-minded, obnoxious, and so invested in their ideology that they are completely unable to comprehend how confused they are and unable to coherently address any criticism directed at their inane ramblings.”

    Nice, take an unrelated subject and throw a cheap shot at a group of people who voiced their opinions as citizens of your country. I do not know who they were, but your condescending tone says it all about you. Doooooschhhy

  125. 130

    Anon, Ned.
    It is getting rather frustrating reading you two.

    Sometimes there is genuine disagreement and I do not mind seeing such (although the implied insults within the “civility” and direct insults are tiresome).

    However, much of the time, like here, you are simply reading past each other and not realizing that neither has understood what the other is saying.

    Ned said that the MOT was “the proper, if not exclusive” test. By this he meant it was an appropriate test that gives important clues, but IS NOT THE EXCLUSIVE TEST. Therefore, it is proper, but not exclusive. I understand how you, anon, might misread this as implying that the MOT might be the exclusive test, but that is clearly not what he is saying if you have read his other posts and even just the quotations Ned provided in this thread.

    For example, Ned quoted the following “Third, while the machine-or-transformation test has always been a “useful and important clue,” it has never been the “sole test” for determining patentability.”

    This was what you criticized and wanted him to admit. He never meant otherwise.

    This misreading of one another’s words happens time and time again. I respect that you both keep posting despite it. But maybe try a little harder to understand.

    If either or both of you are just arguing for the sake of it. Or as that one poster says (or one of their names at least) you are just “shilling”, then by all means carry on.

    It seems to me you are actually both trying however. If so, make an effort to drop the immediate, unreasoned bias (reasoned bias – not a problem with me) against what each other posts and I/we can get back to reading your interesting discussions.

  126. 129

    “That you are challenged by the computer and thus trying to put it down.”

    Well they’re sure better than you, is that the reason you want to own them as property?

  127. 127

    There is no stopping the games. There is no stopping the nonsense. Those who Shill, do so relentlessly and do not care for the facts, do not care for the law, do not care for any type of actual discussion. They do not care even if their Shilling is effective or not.

    They are here to Shill. That is all.

  128. 126

    I do not see misrepresentations of any sort from Anon.

    None.

    If you see misrepresentations, perhaps you can highlight a few. Ulp! – that would mean that you would be giving answers of a sort, and well, we won’t be seeing that anytime soon….

    And it is really hard to see the asking of questions (which is the only constant) getting in the way of you answering those questions. Yes, I can see why that would be difficult. (???)

    Ned, this is just another BS line in a long line of BS from you. You are just full of BS and only have BS to offer. You are prevented from answering the questions that have been put to you repeatedly? I just cannot see it and I am getting tired of seeing your same CRRP games while you indigently call out for control of posting. The control needed is to screen out all the BS games, starting with you.

    Every time I look at the exchange between Anon and you I see Anon pursing a legitimate course of legal discussion and you throwing out your view and then evading ANY discussion. EVERY TIME. WITHOUT FAIL. It is you playing the games OVER AND OVER.

  129. 125

    TAG FIX try2

    Anon is a jerk because you don’t answer questions and he calls you out for it?

    What adjective, then, should be reserved for you?

  130. 124

    TAG FIX

    Anon is a jerk because you don’t answer questions and he calls you out for it?

    What adjective, then, should be reserved for you?

  131. 122

    in In re Alappat. But I’m not so sure that is good law anymore

    As noted in this thread, the CAFC, at the direction of the Supreme Court, has taken on the task of redefining this jurisprdence.

    Per the decision in Ultramercial, Alappat AND ESPECIALLY THIS POINT IN ALAPPAT have been reconfirmed as good law.

    As so many suggest, DEAL WITH IT.

  132. 121

    So, if the sole novelty in the claim

    This CRRP seeps in at every chance – there is no such “sole novelty of a claim” in a 101 analysis. To do such is to impermissibly parse the claim. To do so is to impermissibly conflate the 101 analysis with 102/103.

    STOP THE GAMES

  133. 120

    They seem to think that patenting the equation is the same thing as a real process that converts mass into energy, a process that we know exists in stars, but do not know how to do in any practical apparatus.

    Uranium goes in, electricity comes out. You can’t explain that.

    Okay, maybe “practical” is stretching it a bit, but if Rube Goldberg ever fancies a cup of tea…

  134. 119

    All of EE can be reduced to A/D converters, a few fundamental components, and sensors with a general purpose computer doing all the reset. With your view of the world all the EE patens go away. Did you ever think of that?

    If that’s all there is to the entire field, maybe all those patents should go away. Did you ever think of that?

  135. 118

    You continue to repeat what the current law is as if the fact that it IS makes it right. I am not arguing with you about what the law is. Im pointing out that the current law is absurd and unfair.

  136. 117

    Actually, I figured out what you remind me of MM, the birthers. You keep saying that information processing methods have no transformation, but they do. They transform information that requires space, time, and energy. But, because the average person has trouble with this concept you just keep pushing it.

    Donald “MM” Trump, the monkey.

  137. 116

    The math of thinking Ned? The point is that just as in Deener an information processing method is independent of the machine that is used to perform it. Whether it be a computer or a brain. Whether or not a brain performing the method should count as infringement is a policy question. The method in Deener could be performed by a human body.

    That is the point. Abstract method? What exactly is that? If it is enabled and one skilled in the art can perform the method, how is it abstract?

  138. 115

    And, MM, you are such a dope. You want to continue to try and say that a geneneral purpose computer is like a music player and computer programs like music. Sure buddy. And the Church Turing thesis is nonsense. I get the feeling MM the problem you have is the sense that the computer is better than you are. That you are challenged by the computer and thus trying to put it down.

    You know, it is interesting your reaction because that was the same reasction people had when machines become better at physical tasks than humans. Get over it MM. Move on.

    One different MM is that the music is not operating on represented information is it? So, there is no memory that the music then instructs the music player to examine and then take different action according to what is in the repreented informtion? Nor does the music player instruct that represetned information be transformed in particular ways.

    But, of course, the troll that you are will never respond to these objections to your argument in a substantive manner. No quality argument from you.

  139. 114

    >>According to the MOT, a process that transforms an input to >>produce a transformed output is patentable subject matter. >>From In re Schrader

    And there you go. So, represented information is transformed. That means that all information processing methods are eligible as they are acting on represented infomration and performing transfomrations. One cannot say the representation in the computer memory has to be an outside physical object to count as a transofrmation. That is elementary school physics.

    Sorry boys, it takes time, energy,and space to transform information. (Although, MM, because I am afraid you will go postal, you are free to continue to believe that all information is processed by angels spinning on the top of pins.)

  140. 113

    >>So, if the sole novelty in the claim is in the mathematical >>algorithm that is executed on a computer, can one claim the >>programmed computer per se where the disclosed, but >>unclaimed, physical application is in the process?

    So, if the sole novelty in the claim is in the method of processing grain that is executed by machines, can one claim the machines configured to perform the method?

  141. 112

    Strong argument? It was not me who insisted that abstract processes can be patented. You did that, even after both MM and I asked you for confirmation.

    If there is anything that Bilski reaffirmed is that abstract processes are not patentable subject matter.

    Math or thinking (mental steps) applied to physical signals or steps to produce modified physical signals or steps is the stuff of patents. The math or thinking itself cannot be patented.

    You might try reading the government brief in Prometheus. Also see the quote from Curtis in this thread. Also see the quote from In re Shrader in this thread.

  142. 111

    Let’s face it Ned, what it comes down to is you looking at a machine that is performing a useful task and saying that there is a magical machine. It has captured nature and is abstract. Insane.

  143. 110

    It really is odd that you guys just cannot accept that an informatin procesing method can be carried out by a general purpose computer, but at a heavy cost in performance. The information processing method is better performed by a machien build to carry out that information processing method. The general purpose computer is indeed quite an invention that can simulate other machines at a heavy cost in time and space and energy.

    You guys just don’t want information processing methods to be eligible for patentability just as in Walker and you will spend endless time trying to get your way. Really is remarkable just how powerfully horrible Benson is.

  144. 109

    Are Ned and MM the same entity? They both fall back on childish name calling and personal attacks when confronted with a strong argument….

  145. 108

    Ned, all of this comes down to you wanting to say that information processing methods are not eligible for patentability. They are.

    Information takes time, energy, and space to transform. Information is being transform by the machine that performs the method.

    What have you against information processing methods? If an physical object is represented in memory and then the representation is transformed and courts say that counts as a transformation, then all information transformed in the computer memory is a transformation.

    All of EE can be reduced to A/D converters, a few fundamental components, and sensors with a general purpose computer doing all the reset. With your view of the world all the EE patens go away. Did you ever think of that?

    Really, it is incredible that you waste years and billions of dollars trying to push forth policy arguments to exclude machiens and processes that are clearly patent eligible for policy reasons. Go to Congress and get out of the courts.

    Who says there was anything wrong with Bilski’s claims? The standard should have been whether or not Bilski was entitled to the scope of the claims.

  146. 103

    And this is for all you extremists, if a programmed computer is patentable subject matter, is it your position that the only thing wrong with the Bilski claims is that they were recited as a process and not as a programmed computer?

  147. 102

    Anon, It is because of your constant, and I mean constant, misreprepresentations and other lying behavior of yours that prevents me from even attempting to engage in any meaningful dialog with you.

  148. 101

    Proposition by Night: a programmed computer is patentable subject matter if the specification discloses a patentable process that employs the programmed computer in transforming physical signals.

    According to the MOT, a process that transforms an input to produce a transformed output is patentable subject matter. From In re Schrader, “The claims in Arrythmia involved the manipulation of electrical signals and data representative of human cardiac activity; it was held that they recited patentable subject matter. 958 F.2d at 1053, 22 USPQ2d at 1033. For purposes of Section 101, the claims were indistinguishable from the claims involving the manipulation of data representing CAT scan images held patentable in In re Abele, 684 F.2d 902, 214 USPQ 682 (CCPA 1982); or the claims involving the manipulation of signals representative of reflected seismic energy held patentable in In re Taner, 681 F.2d 787, 214 USPQ 678 (CCPA 1982).

    These claims all involved the transformation or conversion of subject matter representative of or constituting physical activity or objects. In Arrythmia, it was electrocardiograph signals representative of human cardiac activity; in Abele, it was X-ray attenuation data representative of CAT scan images of physical objects; and in Taner,it was seismic reflection signals representative of discontinuities below the earth’s surface. Schrader’s claims, except for incidental changes to a “record,” do not reflect any transformation or conversion of subject matter representative of or constituting physical activity or objects.” link to digital-law-online.info

    So, if the sole novelty in the claim is in the mathematical algorithm that is executed on a computer, can one claim the programmed computer per se where the disclosed, but unclaimed, physical application is in the process?

    (Actually, I think they did, in In re Alappat. But I’m not so sure that is good law anymore.)

  149. 100

    If you simply stop fighting it

    Sort of like the “stop fighting” that accompanies the gamesmanship surrounding Diehr and Bilksi, correct? That accompanies Ultramercial and now Alappat reaffirmed post-Bilski?

    6, sort of like that “stop fighting?”

    Funny isn’t it how so much like MM’s advice of “Deal with it” this sounds from a viewpoint that isn’t law and does not have the facts to support the position. And much like Ned’s drawn swords – the game here is to simply claim victory and hope the other side doesn’t say anything. There is simply no intellectual honesty from this camp. None.

    Don’t you guys realize how weak an argument this is?

  150. 99

    Another dissent view posed as the rule of law… (sigh).

    Ned, Ned, Ned, When will you learn?

    And for Malcolm, the phrase is simply: “Scoreboard“.

    Those few points scored in August seem like so long ago now.

    Ultramercial” is a huge setback for the anti-software patent crowd, as it (rightfully) both reinforces the holding (sorry Ned – that was a holding) of Alappat and (rightfully) acknowledges the simple fact that programming is just like any other “physical” component of a machine.

    Malcolm and his patent-creationist stand can only pound their tables as the law and the facts speak against their views. Tables so worn thin from the pounding as to be like paper.

  151. 97

    Ned,

    You cannot be serious as to think that a two person minority view has the same force of law (has any effective force of law) as a majority view.

    Do you really think so?

    I am not sure why you think it effective to bring out such a weak point. Do you not realize that this two-person view actually works against you? You seem to have this legal reasoning flaw with your penchant for minority views.

  152. 95

    Deal with it.

    Funny advice coming from someone who obviously cannot Deal with it.

    [table pounding to ensue]

  153. 94

    MM,

    Law on your side…? No.
    Facts on your side…? No.

    Well, you can pound your table – and here we go again.

  154. 92

    Hey Ned:

    What is the reason the PTO is situated under the Commerce Department?

  155. 91

    with drawn swords

    Just like you Ned to come to a gun fight with a sword.

    Good luck with that

  156. 88

    Oh well in that case I bow to your victory sir. Strange that the USSC didn’t simply point out that all Benson needed to do was say that his information processing method was like grain, or indeed, the very same as processing grain. If only the USSC had been made aware of this crucial factor we could have avoided this whole discussion!

    /sarcasm

    “What was that case where something was represented in a computer memory then worked on and then output and it was held to be a transformation in the MOT sense?”

    You mean that case from your patent protectionist/expansionist inferior court? That one? I’m just not sure which one you’re talking about, could you be more specific?

    Dam my sarcasm key keeps getting stuck.

  157. 84

    Ken, imagine yourself a judge who can only apply the law. Unless what Congress did was unconstitutional, you must apply the law. You have no option.

    So regardless of one’s private intention, failure to include best mode is statutorily excluded from validity. Period.

    Regarding unclean hands, one would, I believe, have to prove something really nasty before a court would kick you out of court. That’s just my opinion.

  158. 83

    From Curtis, preliminary observations, xxviii-xxix:

    “It is apparent, then, that the mere novel arrangement
    of matter, irrespective of the purpose and effect accomplished
    by such arrangement through the agency of natural
    forces or laws, or the properties of matter, is not the
    whole of invention; but that the purpose; effect, or result,
    and the application of the law, force, or property by menns
    of which it is produced, are embraced in the complex idea
    of invention, and give the subject of the invention its peculiar
    character or essence. And if this is true, it is easy,and
    as correct as it is easy, – to advance to the position
    that the discovery and application of a new force or law of
    nature, as a means of producing an effect or result in matter
    never before produced, may in some cases be the subject
    of a patentable invention. When it has been laid
    down that a ” principle,” – meaning by this use of the term
    a law of nature, or a general property of matter, or rule of
    abstract science, – cannot be the subject of a patent, the
    doctrine, rightly understood, asserts only that a law, property,
    or rule cannot, in the abstract, be appropriated by
    any man; but if an inventor or discoverer for the first time
    produces an effect or result, practically, by the application
    of a law, he may so far appropriate that law, as to be entitled
    to say, that whoever applies the same law to produce
    the same effect or result, however the means, apparatus,
    forms, or arrangements of matter may be varied, practises
    or makes use of his invention, unless the variation of means,
    apparatus, method, form, or arrangement of matter introduces
    some new law, or creates some new characteristic,
    which produces or constitutes a substa~tially different result.
    For, in all such cases, the peculiarity of the invention
    consists in the effect produced by the application of the
    natural law, as an agent; and this effect is not changed by
    the use of different vehicles for the action of the agent,
    provided there is still the same agent operating substantially
    in the same way, to produce substantially the same
    effect or result.”

  159. 82

    James, the Supreme Court, in Diehr, references the predecessor statute, Section 4886 of the Act of 1874. That section reads,

    “SECTION 4886. Any person who has invented or discovered
    auy new and useful art, machinc, manufacture or composition
    of matter, or any new and useful improvement thereof, not
    known or used by others in this country, and not patented or
    described in any printed publication in this or any foreign
    country, before his invention or discovery thereof, and not in
    public use or on sale for more than two years prior to his application,
    unless the same is proved to have becn abandoned,
    may, upon payment of the fees required by law, and other
    due proceedings had, obtain a patent therefor. [See prior
    patent statutes: Section 24, 1870; Sections 6 and 7, 1836 ;.
    Section 1, 1800; Section 1, 1793.]”

    So, it looks like the 1952 update, authored by Rich, may have had a scrivener’s error. Or was the specific reference to Conditions for Patentability intended by Rich to remove the whole topic of patentable subject matter from validity? Knowing his subsequent attitude on the topic, shared by his minion Rader, I think Rich fully intended that 101 not be included in 282 (2).

    Just for example, read his opinions on double patenting. He does not refer to Section 101, but to a-textual Supreme Court opinions that do not reference 101 or any prior statute at all. They reference instead the Constitutional provision about “limited times.” Clearly, Rich did not believe that 101 set forth conditions for patentability.

    In fact, if you look to the Supreme Court cases on patentable subject matter, they too generally reference general principles garnered from case law. See the line of cases going from Benson to Funk Bros., to The Telephone cases, and backwards. Indeed, they all may be following Curtis on patents, which I quote from below.

    Unfortunately for him, the Supreme Court in dicta may have decided the issue by suggesting that the new act did not intend to change the existing law on which topics were subject to validity.

    That being said, the statutory language is clear on its face. It requires some gloss to read out of it the very clear language I quoted.

  160. 81

    I was talking about Les who absolutely insists that abstract subject matter can be patented.

    You, Night, have always insistent that there be a real transformation in data, in the sense that the entropy of real signals is reduced. We are discussing, I believe, how to claim this subject matter, which we agree should be patentable.

  161. 80

    Ned don’t be ridiculous. Do you really think that is my position? Or are you baiting and misrepresenting?

    One danger of monkeying around with MM is that your IQ drops and your humanity disappears.

  162. 79

    6 in Deener there are no machines recited. It is a method of processing grains. Information processing methods are the same. They are methods of transforming information. The structure is in how the information is transformed.

    What was that case where something was represented in a computer memory then worked on and then output and it was held to be a transformation in the MOT sense? That case pretty much proves my point and the Cybersource three went against that case.

    MM, those CD examples are lame and have been refuted over and over. Face it represented information is being transformed.

    Face it boys, you lose. Represented information is like the grains in Deener.

  163. 78

    One is clearly technical, the other is clearly of the liberal arts!

    Thanks for proving the case against your position!

    Nice try, AI.

  164. 77

    That’s an interesting argument, Ned, but no dice. Existing § 282 uses the same language, and the Federal Circuit has been pretty adamant that satisfying § 101 is nonetheless a condition for patentability. “It has long been understood that the Patent Act sets out the conditions for patentability in three sections: sections 101, 102, and 103.” Aristocrat Technologies Australia PTY Limited v. Intern. Game Technology, 543 F. 3d 657, 661 (Fed. Cir. 2008) (citing Graham v. John Deere, 383 U.S. 1, 12 (1966)).

  165. 76

    I still submit that if the failure to describe the best mode amounts to a fraud on the public then the patent could be held to be invalid. In short, I believe that the patent act did was to vitiate accidental omission of best mode as a means of invalidating a patent. I believe that if an inventor intentionally omits best mode with the subjective intent of slowing down competition that is prima facie fraud and grounds for invalidating a patent.

  166. 75

    Sock puppets declare as their last troops are cleared from the battlements and the enemy surrounds their persons with drawn swords, “You guys don’t have a chance. Better surrender now before it is too late.”

  167. 74

    Malcolm, while you and I will vigorously discuss with each other nuances of this topic, we both seem to understand the fundamentals.

    So I do find in interesting that many, including Les, apparently are unwilling to accept the fundamentals. There is a difference between the representation of a phenomena using E=MCsquared and actually converting mass into energy. They seem to think that patenting the equation is the same thing as a real process that converts mass into energy, a process that we know exists in stars, but do not know how to do in any practical apparatus. Thus, in their minds, Einstein would have been entitled to patent the conversion before anyone discovered how to make it practicable.

    Once upon a time, I was bemused by some lawyers who confused title in a copy and title to a copyright, or who could not distinguish between the title to a car and the car itself. Les might be one of these.

    But at times, it pays to be less than accurate, every pun intended. When evading customs duties on software, it is common to declare the value of the software to be the cost of the blank disk on which it is encoded. It appears Les might be in the business of selling vaporware.

  168. 73

    Those types of controls, though my dear Micky Mouse, are the types of innovations that deserve patent protection – as opposed to the music itself.

    One is clearly technical, the other is clearly of the liberal arts!

    Thanks for proving the case against your position!

  169. 72

    Isn’t this from the same guy that thought that bilski was going to be that very whole bowl coming the way for the Diehrbots?

    How did that work out for you?

    (What’s the phrase? Look up at the scoreboard?)

  170. 71

    Like moving the Abacus bead in response to a position of another bead in another column being in a certain position?

    Certainly, this does tie the method to a specific implementation.

    I haven’t read the claims in Benson, but had they emphasized the claim with the shifter and this argument, they might well have prevailed.

    But, that was not their business objective, was it?

  171. 70

    Question:
    If that were the case, then why did not more justices actually sign up to their view of the matter?

    Answer:
    Because they did not believe what the two were actually saying – not even the others on the same side of four as the two would sign that drivel!

  172. 69

    Note, Breyer and Scalia were discussing points of agreement of all nine justices:

    “I write separately, however, in order to highlight the substantial agreement among many Members of the Court on many of the fundamental issues of patent law raised by this case. In light of the need for clarity and settled law in this highly technical area, I think it appropriate to do so.

    “It is my view that the following four points are consistent with both the opinion of the Court and Justice STEVENS’ opinion concurring in the judgment.”

    Among the points discussed by Breyer, of course, is that all nine agree that the MOT is not exclusive. But they all agree that it is important and, in the words of Breyer, ‘[T]he Court intends neither to de-emphasize the test’s usefulness nor to suggest that many patentable processes lie beyond its reach.'”

  173. 68

    the music CD does not control the operation of the record player.

    Of course it does. The CD “controls” when the CD player stops spinning the disc. That can occur immediately after the music ends or it can occur long after. It “controls” whether the CD player displays 25 tracks or just one, and when those track number are displayed (regardless of how many different “songs” the CD encodes). And of course it “controls” what music is played.

    if it included instructions to jump between tracks out of sequence or play them backwards without resorting to the manual controls, you might have a true anaology.

    One could easily make a CD player that recognized certain instructions, e.g., when encoded as musical “cues”. In fact, I just did. So if I put a CD of ocean waves into my CD player is it a “new machine” relative to the my CD player comprising a CD with cookie monster metal? Or is it necessary for the CD to contain those musical cues that instruct my CD player to play music backwards in order for my CD player to be a “new” machine relative to the same player with an ocean wave machine in it? Seems just a tad arbitrary. What’s so critical about “playing a track out of sequence”?

    The bottom line, Alun, is that your entire “rebuttal” of my statement about the two different CD machines just attempts to shift the question of what is a “new machine” to a discussion about when a component of a machine substantially “controls” the machine’s behavior. This is the “dishonesty and/or goalpost moving” I was talking about. In fact, a “programmed computer” includes computers that do far less substantial activities than those performed by a CD player with a CD in it. Deal with it.

  174. 67

    AI, Breyer concludes, "In sum, it is my view that, in reemphasizing that the "machine-or-transformation" test is not necessarily the sole test of patentability, the Court intends neither to de-emphasize the test's usefulness nor to suggest that many patentable processes lie beyond its reach."

  175. 66

    “In contrast, knowing how much energy can be produced from a given mass is abstract.”

    No its not. But even if it were, so what?

    Further more, the claim I referred to was not directed to mere knowing, it was directed to a method of determining. Also, not abstract…instead, a particular solution to a particular problem.

  176. 64

    What you fail to see, my dear Mickey Mouse (is that not what MM stands for?) is that the music C does not control the operation of the record player. Now, if it included instructions to jump between tracks out of sequence or play them backwards without resorting to the manual controls, you might have a true anaology.

  177. 63

    Except it does – See Alappat. See Ultramercial.

    LOL. It’s easy to imagine sockie the sockpuppet back in 1858 holding up the Dredd Scott decision and righteously telling his once-free slaves, “See – you ARE my property! Now stop all this talk about rights and such.”

    the very fundamental basis of the court’s error

    Fixed.

    And let’s face it: you thought Bilski’s claim was eligible for patenting, too, according to your precious case law. Guess what? You were wrong. I was right. I hope you liked that spoonful from the Supremes because you’ve got a whole bowl coming your way soon.

  178. 62

    such configuration does not necessarily and unambiguously convert the old machine into a new machine for patentability purposes.

    Except it does – See Alappat. See Ultramercial.

    When you cannot see the very fundamental basis of your error, what hope is there that you will understand the subject?

  179. 60

    Please do not misrepresent a two-person minority view as having the effect on par with the majority (all nine) view that I gave to you.

    I tire of your silly games. At least try to think of something that will take me more than two seconds to shoot it down as an improper proposition of law.

  180. 59

    I see no reason that it need to be applied to a physical process.

    More accurately, Les is incapable of seeing any reason to deny patents to new mental processes. He’s a genuine pxtxnt txxbxgger.

    You’ve been warned, Ned.

  181. 58

    Les, converting mass to energy and energy to mass certainly is transformative.  

    In contrast, knowing how much energy can be produced from a given mass is abstract.

    But, now we get to the hard point, do we not?  Can we re-patent the measurement of mass if we add on the mental knowing step?

  182. 56

    Ned: “Diehr finally resolved the confusion by simply stating that the MOT was the proper, if not the exclusive, test.”

    No Ned, this is not correct.

    You are stating a falsehood, a known lie.

    You can’t provide that exact quote.

    Ned: “It appears that the Bilski court continued with the Diehr understanding and limitation on Benson.”

    Since what you claim is ” the Diehr understanding” is false, it can’t be the correct reason for the limitation ( cabining) of Benson either.

    Ned, please stop trying to twist the law to your own agenda.

  183. 55

    sockpuppet geek: The very essence of “programmed to” means that the change has taken place (otherwise, you would no thave your “programmed to”).

    Of course, as time passes the 2nd Law of Thermodynamics ensures that all machines will decay and their functionality will change in measurable ways, provided that we measure accurately enough. Thus, every machine as it exists in now is “new” relative to itself, as it existed moments earlier. Does that make sense to you? I hope not. It is, however, just as sensical as the lame argument you just floated.

    “Programmed to” for a computer is equivalent to “configured to” for a machine. If an old machine is “configured” to do something characterized as “new”, such configuration does not necessarily and unambiguously convert the old machine into a new machine for patentability purposes. The structure of the machine is unchanged, i.e., the computer is still a computer. The CD player comprising a disc consisting of 60 minutes of barely audible ocean waves is identical, for patenting purposes, to a CD player with a disc comprising 60 minutes of cookie monster metal recorded in the red. This is uncontroversial, regardless of the indisputable fact that the functions of the two machines are completely different, as may be demonstrated scientifically by turning on the machines in numerous different environments.

    Attempts to distinguish “programmed” computers from this situation inevitably require dishonesty and/or goalpost moving. The belief that programmed computers are “new” machines and must be considered as such by patent law is invariably rooted in self-interest. The primary proponents of the view are patent trolls/programmers/lawyers who are invested in manipulating the patent system for their personal benefit. The evidence that patents on new computer programs is necessary to promote the development of computer programs is non-existent. Information processing is the only area of patent law where one can find many (most) patent attorneys and practitioners who work in the relevant field who disapprove of the granting of such patents, even though such patents are alleged by their proponents to be critical for the survival of the technology.

    The proponents of software patents remind me a lot of those strange white people who marched into public meetings not so long ago and demanded that the Federal government stay out of Medicare: simple-minded, obnoxious, and so invested in their ideology that they are completely unable to comprehend how confused they are and unable to coherently address any criticism directed at their inane ramblings.

  184. 54

    Ned – We are in agreement, I think. Where we might disagree is, I see no reason that it need to be applied to a physical process. It is enough that AE teach us a method to calculate the Energy equivalent of mass comprises:
    determining the mass amount;
    multiplying the mass about by the speed of light squared, thereby determining the energy equivalent of the mass.

  185. 53

    There is nothing abstract about mathematical equations.

    Poetry is abstract

    Art is abstract

    The meaning of life is abstract.

    Mathematical equation have a solution, and if you don’t know it, you fail.

  186. 52

    6, thanks.  I know the shift register is used as part of the calculation.  In truth, it is substitute for multiplication or division as shifting a value by 1 position is effectively a multiplication or division by 2. (One has to deal, of course, with the carry.)

  187. 51

    Les, “If your claim can be construed to read on a mental step …it is unpatentable.”

    I daresay, if this were what the cases held, then I would agree with you. But the Court always said a application of a law of nature or abstract idea to a physical process could be patentable. What does this mean? I think it means what I said it to mean in my earlier post. The mental step must modify a physical step in some substantial way. Thus the mere presence of a mental step will not necessary render unpatentable a process claim. But it will if the mental step is the only thing new and it does not modify a physical step.

  188. 50

    “as the shifter is an applied multiplication step”

    A “shifter” (aka a shift register) is an applied multiplication step? Hmmmm, I thought it was some hardware. I also think you’re a tard. Possibly an Actual Inventard.

    “The word applied is critical”

    Oh really, and why is it critical?

    “and takes this from a pure math world to an applied math world and applied math is (and should be) patent eligible”

    Says whom?

  189. 49

    Breyer and Scalia:

    “In addition to the Court’s unanimous agreement that the claims at issue here are unpatentable abstract ideas, it is my view that the following four points are consistent with both the opinion of the Court and Justice STEVENS’ opinion concurring in the judgment:

    “Second, in a series of cases that extend back over a century, the Court has stated that “[t]ransformation 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.” Diehr, supra, at 184, 101 S.Ct. 1048 (emphasis added; internal quotation marks omitted); see also, e.g., Benson, supra, at 70, 93 S.Ct. 253; Parker v. Flook, 437 U.S. 584, 588, n. 9, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978); Cochrane v. Deener, 94 U.S. 780, 788, 24 L.Ed. 139 (1877). Application of this test, the so-called “machine-ortransformation test,” has thus repeatedly helped the Court to determine what is “a patentable `process.'” Flook, supra, at 589, 98 S.Ct. 2522.

    “Third, while the machine-or-transformation test has always been a “useful and important clue,” it has never been the “sole test” for determining patentability. Ante, at 3227; see also ante, at 3231-3232 (STEVENS, J., concurring in judgment); …Rather, the Court has emphasized that a process claim meets the requirements of § 101 when, “considered as a whole,” it “is performing a function which the patent laws were designed to protect (e.g., transforming or reducing an article to a different state or thing).” Diehr, supra, at 192, 101 3259*3259 S.Ct. 1048. The machine-or-transformation test is thus an important example of how a court can determine patentability under § 101, but the Federal Circuit erred in this case by treating it as the exclusive test.

    “Fourth, although the machine-or-transformation test is not the only test for patentability, this by no means indicates that anything which produces a “`useful, concrete, and tangible result,'” State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368, 1373 (C.A.Fed.1998), is patentable. …Indeed, the introduction of the “useful, concrete, and tangible result” approach to patentability, associated with the Federal Circuit’s State Street decision, preceded the granting of patents that “ranged from the somewhat ridiculous to the truly absurd.” In re Bilski, 545 F.3d 943, 1004 (C.A.Fed.2008) (Mayer, J., dissenting) (citing patents on, inter alia, a “method of training janitors to dust and vacuum using video displays,” a “system for toilet reservations,” and a “method of using color-coded bracelets to designate dating status in order to limit `the embarrassment of rejection'”); see also Brief for Respondent 40-41, and n. 20 (listing dubious patents). To the extent that the Federal Circuit’s decision in this case rejected that approach, nothing in today’s decision should be taken as disapproving of that determination. See ante, at 3231; ante, at 3232, n. 1 (STEVENS, J., concurring in judgment).

    “In sum, it is my view that, in reemphasizing that the “machine-or-transformation” test is not necessarily the sole test of patentability, the Court intends neither to de-emphasize the test’s usefulness nor to suggest that many patentable processes lie beyond its reach.

  190. 48

    “it really depends on whether they were claiming new hardware”

    They were not. Read the claim. Read the decision. ” The mathematical procedures can be carried out in existing computers long in use, no new machinery being necessary.”

    ” or just using the shifter to masquerade as multiplication step.

    They were not.

    You obviously have not been exposed to binary math or binary to bcd conversion (which is a subsection of binary math).

    The shift register was simply used in a shifting step it was “masquerading” as anything.

    The bottom line regarding that limitation in that decision was that the limitation to a shift register did not narrow the claim in so far as its applications were concerned because every application concievable would require a shift register. In other words, tossing in a shift register didn’t modify the scope of the claim in the least in terms of what it would cover irl as opposed to what it would cover intellectually.

    Again, it is your fundamentally choosing to not take Benson’s holding at its word that is causing you issues. If you simply stop fighting it and give in to the proper interpretation everything falls into place quite nicely.

  191. 47

    In Mriad, for example, people are doing more than just thinking thoughts, they are then acting on those thoughts, so their thoughts were discovered.

    That’s nice. The asserted claims we are discussing didn’t require any actions, however.

    by their actions made it known

    LOL. All of the “actions” that follow the ineligible claims we are discussing are in the prior art or covered by the licensed/exhausted patents of third parties.

    The only party who was “busted” in Myriad was … Myriad.

    In any event, Les, your statement was false, as I indicated. Myriad asserted claims that were infringed merely by thinking about data. So did Classen. Those claims were found ineligible. But they were certainly asserted.

    You were wrong. Let it sink in Les. You were wrong. And I corrected you. Again.

  192. 46

    Night, “A circuit that performs a method is not eligible for patentability because it has some of those math symbols and then is a law of nature or anything with a math symbol is the type of thing that isn’t eligible for patentability.”

    Just to clarify, a claim to new circuitry that can perform a function is different from claiming all circuitry that can perform that function. In the one case, the claim is to the circuit. In the other, the claim is to the function. There is a difference.

    Regardless of 101, the law has since the earliest days of the Republic made this distinction. Statutes had been repeatedly crafted to constrain claims to the scope of the invention. Still the problem remains.

    Historically and even today to some extent, the courts recognize that if the invention is independent of the hardware such that it can be implemented in computers, circuits or their equivalents, the invention is to a process. On the contrary, if the process is broadly old or obvious, the invention, if anything, is in the circuitry.

    IMHO, a claim to a programmed computer is indefinite. Regardless of addressing that issue, the courts have treated such claims as claims to a process, and rightly so.

  193. 45

    You miss the point. In Mriad, for example, people are doing more than just thinking thoughts, they are then acting on those thoughts, so their thoughts were discovered. They infringed the claimed thought process (if indeed a thought process is claimed) and, by their actions made it known and were therefore busted.

    If someone invents a new, useful and non-obvious thought process, why shouldn’t it be patentable? Sounds like a new use of an old machine (une noggin)to me (see 35 USC 100).

    If your argument is that the claimed thought process is not new…well…that’s a horse of a different color.

  194. 44

    Ned –
    In case you missed it, my point was the subject rulings are absurd. Classen is no exception. If the method of the assessment is new and not obvious (e.g. the assessment of energy equivalent of a mass; i.e E=mCC), then there is no reasonable reason that method should not be patentable.

  195. 43

    Actually there is no such thing as a masquerade in this instance, as the shifter is an applied multiplication step.

    The word applied is critical and takes this from a pure math world to an applied math world and applied math is (and should be) patent eligible, if for no other reason than applied math means that a person has made a conscious decision to do something with the math tool and that is enough to be captured under what patents are for.

  196. 42

    programmed to transform the data patentable as a new machine as such a claim actually does not require any transformations to take place

    Except Archer was wrong.

    The very essence of “programmed to” means that the change has taken place (otherwise, you would no thave your “programmed to”).

    Please understand the art if you are going to speak to this subject.

  197. 41

    Les, at one time the Feds had figured it out fairly well. If the output of the abstract “steps” were functionally tied to or modified a real process step, that was sufficient to potentially create a new process.

    So, when the abstract steps do nothing more than assess or calculate data from data gathering steps, the claims are not directed to patentable subject matter. See, Classen.

    Note, updating an alarm limit is not the same thing as ringing an alarm in response to some condition. Close, but not the same.

  198. 39

    MA == a process involving at least one step that has as inputs data and as an output as data, where the step is a mathematical or logical operation.

    Did you have something else in mind?

  199. 38

    Actually, Night and I were discussing this very point. I think a claim to transformation of data from one state to another (a process) may well define patentable subject matter.

    However, that still does not make a machine programmed to transform the data patentable as a new machine as such a claim actually does not require any transformations to take place. Cf, Archer’s dissent in Alappat.

  200. 37

    It’s Les!

    No one is ever going to be sued for infringement that merely thinks the claimed thoughts.

    The apex of naivety has been reached. Les plants his flag on the summit. Congratulations!

    From the perspective of one practicing the prior art, there is no difference between being sued for “merely thinking” and being sued for practicing the prior art (perfectly legal and unpatentable) while “merely thinking” about if/when to engage in said practice.

    People have already been sued for the doing the latter. As noted (and it’s an irrefutable proposition), the defendants in such cases are, for all practical purposes, being sued “merely for thinking.”

    Claims have issued and surely will continue to issue on methods that can be infringed merely by thinking about data (i.e, the infringer does not need to produce the data). Both Classen and Myriad saw such claims obliterated by the Federal Circuit, which is surely the most friendly place on earth for poorly drafted claims.

  201. 36

    The new statute also allows the applicant to name anybody as an inventor regardless of whether he is or is not technically an inventor. This solves the political problem of naming the boss. Just do so. It will not affect the validity of the patent.

  202. 35

    “Information processing is the invention. That is why 6. ”

    Well if you persist in designating non-inventions as “the invention” then courts simply have to smack you down NWPA. It really is that simple and you know it.

    “The machine that implements the information processing is not the invention.”

    Says you…

    “There are thousands if not millions of variations of the machine to implement the information processing, but the invention is the information processing method.”

    Well then go ahead and try to claim it as an information processing method.

    “So, why is the invention excluded?”

    Probably because information processing methods, or at least the ones at issue, are inherently abstract ideas and we have a prohibition on the patenting of such?

    Fact is this NWPA, you don’t want to limit yourself to any specific application of the abstraction. That would be an invention, which you very well understand and know. But, of course, that would also allow for others to design around (like the patent system is SUPPOSEDLY supposed to allow for) and you don’t like that. That is pretty much all it boils down to. The patent system operating as it should and your simply not being happy with it.

    But hey, I’ve already offered to let you join us in the protests. To come down, and spread your propaganda right beside my own and let the people decide and then lead a little rally. As of yet you haven’t decided to come on down.

  203. 34

    Dennis, I bought your e-book. In describing new Section 321, you say,

    “New sections 321-329 define a new post grant review proceeding allows a third party to request review of recently issued patents based upon virtually any invalidity ground, including failure to satisfy the requirements of sections 101, 102, 103, or 112 (except for best mode).”

    The statute says, “under paragraph (2) or (3) of section 282(b) (relating to invalidity of the patent or any claim).”

    Paragraphs 2 and 3 of 282(b) say,
    “(2) Invalidity of the patent or any claim in suit on any ground specified in part II of this title as a condition for patentability.
    (3) Invalidity of the patent or any claim in suit for failure to comply with–
    (A) any requirement of sections section 112, except that the failure to disclose the best mode shall not be a basis on which any claim of a patent may be canceled or 251 held invalid or otherwise unenforceable; or
    (B) any requirement of this title,section 251.”

    Part II states (in material part)
    “100 Definitions.
    101 Inventions patentable.
    102 Conditions for patentability; novelty and loss of right
    to patent.
    103 Conditions for patentability; non-obvious subject
    matter.”

    The bottom line, reading all together, 321 is limited to

    1. Condidtions for patentability: 102/103
    2. Section 112, but not best mode; and
    3. Section 251.

    Section 101 is not included by statute. Section 251, however, is.

  204. 33

    Information processing is the invention. That is why 6. The machine that implements the information processing is not the invention. There are thousands if not millions of variations of the machine to implement the information processing, but the invention is the information processing method. So, why is the invention excluded? It does not fit the Walker fact pattern, even if one wants to live in the 1920’s.

    And you should care if MM is still a simian.

  205. 32

    Les–

    Your point raises an interesting issue regarding the sufficiency of a statement of claim, as well as all sorts of interesting evidentiary issues.

    I could envision the situation where not only could a statement of claim be found sufficient in a general sense, but also where circumstantial evidence of the required thoughts could be admitted, and be considered sufficient to sustain a finding of infringement.

    If I had such a patent I, for one, would bring suit. With a sufficient statement of claim and the resulting powers of discovery, I’d put together the best case I could, and give it a shot.

    It would essentially be no different from any other case where there is no direct evidence of infringement–more difficult, but not necessarily impossible.

  206. 31

    “because it the author thought that the “mathematical equations” were what was needed to make competiting machines.”

    Very perceptive NWPA. And I think very close to the mark. However, there is nothing “wrong” with this.

    Why is there nothing wrong with this?

    Because there is nothing wrong with this:

    ” clever patent attorneys could just design around any structural specficiation of a machine. ”

    You spout the following without any explanation:

    “This is also the core of this “abstract” business. But, this should not apply to methods of a machine which is what software, information processing methods, are.”

    And leave it to us readers to figure out why this should not apply.

    “Don’t forget: information transfomrations take space, time, and energy. Information transformations are a transformation every bit as much as what goes on in MM’s smelly test tubes. MM is still a simian.”

    ^Who cares?

  207. 30

    If you and your students are confused by Benson, Flook, Chakrabarty, Diehr, and Bilski, you can all relax. Your confusion only means that you have a firm grasp of the subject matter. The rulings taken alone or in combination are absurd.

    One case says a method is patentable because it results in the automatic opening of a door (insignificant post solution activity if ever I saw it). Another case says if you take the two wires that drive the door opening motor and instead tie them to an alarm, to notify an operator to open the door, that isn’t patentable.

    None-sense.

    All of this stems from one bad decision that resulted in an edict that states, if your claim can be interpreted as reading on mental steps, then it isn’t patentable.

    That was a flawed decision and has resulted in I don’t know how many years of bad patent law. Why shouldn’t mental steps be patentable? Why can I patent a claim that recites stirring a pot, but I can’t patent a claim that recites figuring out how long to stir? No one is ever going to be sued for infringement that merely thinks the claimed thoughts…no one would ever know they thunk the infringing thoughts…so, its silly to ban claims that read on thinking thoughts….If we had words that described what a computer does that we tend to describe with words that relate to thinking, none of this would be at issue. To make it an issue is just childish…

  208. 29

    “Night, I would agree with you that the claim that specifically included the shifter should not have been construed so broadly as the court construed the claim.”

    And why is that Ned? What meaningful limitation on the scope of the claim did that element have? Every single application of the abstract idea at issue in Benson would have required such a shifter, indeed, applicant admitted to such iirc.

    ” They did not construe the claim to cover specific hardware, but rather construed the claims broadly as to cover the mathematics. ”

    Which was wise because the claimed hardware did not affect the scope of the claim in the slightest in terms of what it would have actually covered.

  209. 28

    “This week in patent law class: Left my students confused after discussing Benson, Flook, Chakrabarty, Diehr, and Bilski. I’m somewhat confused as well.”

    What exactly confuzzled you? They’re pretty simple. I am of course available to make a guest appearance and lecture for you D.

  210. 26

    Night, I would agree with you that the claim that specifically included the shifter should not have been construed so broadly as the court construed the claim. With the shifter included, the claim it appears to have been claiming specific hardware in a computer. If it was claiming specific hardware, and not the algorithm, the claim should have passed muster.

    However, in interpreting Supreme Court cases involving patents, is important to not read into the opinion something which the Supreme Court did not say. They did not construe the claim to cover specific hardware, but rather construed the claims broadly as to cover the mathematics. That is the take away from the case.

  211. 25

    I think Walker explains Benson very well, Ned. Just throw in some 15 pages of 1920’s thinking and some goal oriented policy based reasoning and you have Benson.

    >Yet if Walker’s blanket claims be valid, no device to >clarify echo waves, now known or hereafter invented, whether >the device be an actual equivalent of Walker’s ingredient or >not, could be used in a combination such as this, during the >life of Walker’s patent.

  212. 24

    what is a mathematical algorithm? And please try not to fall back before 1950 science and information theory.

  213. 23

    Ned, what? What Benson boils down to is the court saying that such a method shouldn’t be eligible because it could be used for other things. It is a law of nature or abstract.

    One of the claims in Benson was the actual ee circuit that performed the information processing method of Benson.

    So, how is Benson justified exactly? A circuit that performs a method is not eligible for patentability because it has some of those math symbols and then is a law of nature or anything with a math symbol is the type of thing that isn’t eligible for patentability. Nice 1920’s thinking about math symbols. Tranformation argument is 1920’s thinking about information.

    The basic idea in Benson is that the SCOTUS didn’t want methods claims that it thought would limit other from making other machines to perform the method. That is what they were up to. A policy based argument.

    With just a little thought one can see why their thinking is wrong for information processing algorithms. And, how a method of a machine plays into this. The idea should be that the information processing method is the invention and which machine is built to carry it out is secondary. The fact that there are math and symbols seems to have confused their 1920’s brains. The fact that infromation was invovled rather than a smelly chemical seems to have confused their 1920’s brains.

    Information takes time, energy, and space to transform. 5 + 1 = 6 is a transformation every bit as MM’s smelly chemicals.

  214. 22

    Rob,

    I note your comment is tagged to my “political/philosophical post, rather than to the “without deceptive intent” post, but I presume that the “without deceptive intent” is the point of your comment.

    However, whether such is a technical expansion misses the point. The point is that “deceptive intent” should never have been removed, as there is absolutely no reason why such a removal comports with any legislative intent, nor can it.

    Allowing deceptive intent simply is not defensible.

    If you say this just mirrors a change in other parts of the AIA, the question still remains why those other parts are removing something that should not be removed.

  215. 21

    the proper, if not the exclusive

    Ned,

    Please drop the “if not exclusive” tag as all nine of the justice in Bilski agreed that MOT is not the exclusive test.

    This is only one of two things that all nine agreed to, and your continued (incorrect) insertion of this point is more than annoying.

  216. 20

    I guess the change also now allows for an original patentee to engage in IC that allows for the original patent to issue with claims that are invalid (say, overbroad). Such an error could not be corrected by reissue under the old statute (presumably, even if the patent was assigned to a third party).

    Now the error could be corrected and it seems that there would be no penalty for the prior misconduct after the correction (unless the prior conduct was “egregious”?).

  217. 19

    The change to Section 251 — removing the restriction that one could seek reissue only for facts arising “without any deceptive intention” — was introduced in Section 20 of the AIA as part of technical amendments (generally necessitated by other substantive changes). Note that the supplemental examination procedure was added as Section 257, and this change to 251 was probably just intended to mirror and extend that supplemental exam provision — i.e., if we’re going to allow you to make up for real substantive inequitable conduct (including regarding novelty/obviousness issues), it would be silly to still prohibit correction of inequitable conduct in connection with technicalities, defective specs/claims, section 112 issues, etc. So this appears to be just a mirror of the new supplemental exam procedure extended to all validity/enforceability issues.

  218. 18

    Dennis, join the crowd of the confused. Judge Rich generally was confused by the Supreme Court precedent and said so. Ditto Rader.

    I personally think Benson and Flook were confusing in how they use the term “use.” After having explained that the mathematical algorithm under consideration could be “used” on a variety of apparatus to calculate the algorithm, including humans using pen and paper, it was clear that their usage of the term “use” was in the sense that these mechanisms were used as tools. But they were not used in the sense of the MOT, which they also announced as a general rule in the case, whereby a tool can be used as part of a process to produce a new result. Simply defining a tool as a use in this context is confusing.

    Thus the ultimate holding the case is confusing because they conflated the use of a tool with the end result produced by claim.

    Flook continued the confusion. Diehr finally resolved the confusion by simply stating that the MOT was the proper, if not the exclusive, test. It appears that the Bilski court continued with the Diehr understanding and limitation on Benson. Benson really was about the MOT, and that the problem with the Benson claim, as is clear from the Bilski court’s description of Benson, was that it did not produce a new result, but rather simply claimed the calculation per se, numbers and the numbers out. So understood, the computer of Benson was simply a tool.

  219. 17

    Night, to be fair, the linkage in Benson was not between mathematics and laws of nature but between mathematics and abstract ideas. The three broad exclusions of the Supreme Court are phenomena of nature, laws of nature, and abstract ideas. Mathematical algorithms fall into the latter category.

  220. 16

    Night, if the calculation can be done in the computer, can be done mechanically, can be done in circuits, the equivalency is not in the means but in the method.

  221. 15

    Night, just the place in the context some of the facts involved in Walker and is later discussed in the Supreme Court Halliburton case, the claim in Walker was to the method of counting tubing collars in an oil well to determine the depth of the oil well. The prior art had disclosed a method of inducing soundwaves into the well, detecting echoes, and drawing them out on a piece of paper. The prior art was deficient in that the tubing collar echoes were indistinct. But they were visible nevertheless.

    The invention of Walker was to provide an adjustable mechanism at the top of the oil well to enhance the tubing echoes so they may be easily counted.

    Both the Walker ninth circuit case and that Halliburton Supreme Court case believed that the mechanical tuner was all that Halliburton had actually invented. So they balked in the Supreme Court when he claimed all mechanisms for enhancing the echoes of a tubing collar. They balked in the Ninth Circuit when he claimed the simple mathematics to compute the depth of the oil well. The mathematics themselves essentially were obvious in view of the Ninth Circuit.

    So understood, what was going on in the Walker case and in the Halliburton case is clear. It has nothing to do with the broad propositions of 18th-century thinking about information processing. It has to do rather with about a patentee trying to claim far broader than his invention.

  222. 14

    One thing I can tell you is that from somone who writes applciations for mechanical, ee, cs, biotech, that the methods aren’t different. The issues aren’t different. It is just that somehow or another in Benson we got this psychotic linkage between “mathematical equation” or “algorithm” and “laws of nature.” I think it was a deliberate mischaracterization to achieve a policy.

    Certainly for example in mechanical cases when I claim a method for the operation of the machine, one could simply come up with a symbolic way of represeting the operation of the machine and then according to Benson’s psychotic reasoning it would become a law of nature, or the Bilski abstraction.

    Down with the Cybersource three!!!

  223. 13

    One of the odd things about 101 jurisprudence is how the symbols used in information processing methods has almost psychotically been attached to “laws of nature.” It is also very odd that information processing has been under heavy attack and yet the method of information processing look almost exactly like those of mechanical, electrical engineering, and biotech.

  224. 12

    OH and by the WAY?
    My Grades were fine. I was nosy. That was a comment on my Card. So when Ms. Crayon came in and there was never a problem with my reading before… and being bored I pretend to not read well… She must have needed to fill a seat in order to continue the Class?
    So if I did have FAS LOLOLOL… then why was I in the regular Population?
    And also was this FAS idea before or after I mentioned a friend of mines Children?

  225. 11

    The new patent act eliminates the “without any deceptive intention” limitation. What’s the impact?

    A better question: Why was this done at all?

  226. 10

    Benson is essentially Walker. It is trying, although through deception and dishonesty, to exclude methods because it the author thought that the “mathematical equations” were what was needed to make competiting machines. What is wrong with this? Well, besides the out and out lies and mischaracterizations and 1920’s science, the problem is that patent law had recognized that it needed to allow methods of a machine or clever patent attorneys could just design around any structural specficiation of a machine. The information processing methods are really methods of a machine. And that is why they should not be excluded. Benson is old timer thinking that is not applicable to information processing methods.

    Take this to the bank!! This is the core concept of why Benson was written and why it is wrong. This is also the core of this “abstract” business. But, this should not apply to methods of a machine which is what software, information processing methods, are.

    Don’t forget: information transfomrations take space, time, and energy. Information transformations are a transformation every bit as much as what goes on in MM’s smelly test tubes. MM is still a simian.

  227. 9

    I was told to call an Atty. in Tennessee. He told me to send all the Originals… Of course I didn’t. My Telephone went dead while I was waiting for him to tell me whether he would help me or not. The line came back after he sent back my Evidence. If he is involved in the Case I imagine he is a “Sorry @ss now. And I am sure the only person I was speaking with at the time was the Lawyer that was supposed to be charging me for Marketing. And I was marketing NOTHING! POUND!

  228. 8

    And that is all it is going to take. And with that information and the Log and a host of Deceptive Intent, I will get a Lawyer.

  229. 7

    The University of Tennessee connection must be with a Relative of mine. And maybe he is being paid in Royalties to keep me in the Box. And of course let them steal my Keys. He asked another Family member for a Key. The member said NO! I can imagine why. But they still somehow got into his Home anyway!

  230. 6

    This week in patent class

    Dennis,

    Did you focus on the law to the exclusion of the politics and philosophical differences of the Jurists involved?

  231. 5

    And the “greatest thing of all” is for some reason R.C.L.and the others thought they could just leave the writing about the Cuff being another means and I would never go to Court even after J.R.W. was canned as long as they gave some of the monies for my Idea to the Coast Guard. And the Congress has my LOG or at least looked at it!

  232. 4

    Has anyone ever made the argument that computers transform matter because: (1) they change entropy by rearranging data; (2) a change in entropy amounts to a change in free energy (recall G=H-TS from physical chemistry; (3) energy and matter are equivalent (E=mc**2); therefore change in entropy=change in matter? It seems logically sound.

  233. 3

    One positive outcome: Say an inventor was adversely impacted by an entity (one or more joint inventors or unlawful assignee, or disgruntled assignee) who did so with deceptive intent.

    For example, an assignee makes a claim amendment, attributes that as the only subject matter an inventor contributed and then removes that inventor from the patent. If that is not the inventors only contribution to the claims then the assignee makes that amendment with deceptive intent (arguably). Under the current system, the inventor has no way of adding that subject matter back in to the claims and being renamed on the patent. Under the new system, the inventor can “right the wrong” even though there was initially deceptive intent.

  234. 2

    Question for the class,
    What happens after the Judge excuses himself and rightly so, but later an Elephant enters the room. A really big one. And even the reason the Judge stepped down looms larger now?
    And now the the Elephant has a buddy who is also a relative of the person and now a relative of the Elephant too. And because of this has now made the problem so huge that the Room is now made larger and walls are torn down to hold this Elephant.And the saddest thing of all is the Relative knows things that the Person should have known many many years ago. And that information in itself may make the Elephant case a Family of very large Elephants. And a few may even be Rogue.

  235. 1

    Whatever became of the survey regarding issues unresolved by Bilski? If the results are never to be released, it would be nice to know why. Seemed like a realy interesting question to pose.

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