VS Tech v. Twitter, 11–cv-0043 (E.D. Virginia 2011)
Trial is set for this week in the patent infringement lawsuit between VS Tech and Twitter. VS’s asserted U.S. Patent No. 6,408,309 claims a “method of creating an interactive virtual community of people in a field of endeavor” and has a February 2000 filing date. The inventor is Dinesh Agarwal who has also been a patent attorney since 1985. VS Tech was formed to pursue the lawsuit and is headquartered in Mr. Agarwal’s law office address. The first two claims of the patent are reproduced below:
What is claimed is:
1. A method of creating an interactive virtual community of people in a field of endeavor, comprising the steps of:
a) selecting a field of endeavor;
b) compiling a list of members in the selected field;
c) selecting a member from the compiled list of members based on a preselected factor;
d) obtaining biographical information about the selected member;
e) processing the biographical information in a preselected format to create a personal profile of the selected member;
f) publishing the profile of the selected member on a machine readable media; and
g) allowing the selected member to interact with the profile.2. The method of claim 1, wherein the step (f) comprises publishing the profile of the selected member on a network of computers.
In his most recent judgment in the case, Judge Morgan denied Twitter’s motion for summary judgment of invalidity under 35 U.S.C. 101, 102 & 103 and non-infringement.
The section 101 decision is interesting in that the judge treated the machine-or-transformation test as a question of fact to be determined by the jury. “In light of all of the foregoing considerations, the Court finds that the evidence is sufficient for a reasonable juror to conclude that the ‘309 patent is linked to a particular machine or apparatus.” Like claim construction and obviousness, patentable subject matter is treated by the courts as a question of law. However, unlike claim construction, the appellate courts have never held that it must be the judge who decides section 101 issues.
- File Attachment: Denial of Summary Judgment (1542 KB)
- File Attachment: Twitter Motion for Summary Judgment (2814 KB)
- File Attachment: VS Tech Opposition Brief (2481 KB)
When the case was filed in January, Patent Law reporter Joe Mullin wrote “The central role of patent lawyers in suits like this raises questions about the health of the U.S. patent system. Patent lawyers are insiders in this system, and an increasing number of them aren’t satisfied just with being very-expensive service providers to patent owners. They’re seeing the millions made by so-called patent trolls and are eager to get into the game themselves. The patent office simply isn’t set up to say no to a persistent applicant, and the patent lawyers know that as well as anybody. Mike Masnick filed his story under the “bang-head-slowly dept.”
The following is the text of Twitter’s proposed jury instructions on what it terms “unpatentable subject matter”:
Even if an invention is both new and not obvious, a patent claim may be invalid if its subject matter is not patentable. The law establishes three categories that are not eligible for patents: laws of nature, physical phenomena, and abstract ideas.
Twitter contends that the asserted claims of the ‘309 patent claim an unpatentable abstract idea. Methods which can be performed mentally, or which are the equivalent of human mental work, are abstract ideas which cannot be patented. An abstract idea is unpatentable even if the patent claim limits the idea’s use to a particular technological environment, or adds insignificant post-solution activity. Systems that depend for their operation on human intelligence alone cannot be patented.
A useful and important clue for determining whether a patent claims unpatentable subject matter is whether the claim is tied to a particular machine or apparatus, or transforms a particular article into a different state or thing. This is called the “machine or transformation test.” To satisfy the machine prong of this test, the use of the machine must also impose meaningful limits on the claim’s scope. If the claim does not satisfy the machine-or-transformation test, this indicates that the claim may be invalid because it claims unpatentable subject matter.
” I interpret interacting as something other than reading.”
Such as… two friends that both read the magazine to talk about it? I’m pretty sure they’re “allowed” by the magazine company to do that.
I’ll take that dare:
“The U.S. Supreme Court, however, rejected the finding that a machine or transformation was a condition of patentability. The Court said that while the machine or transformation test was a “useful and important clue, an investigative tool, for determining whether some claimed inventions are process,” it was not a condition of or “sole test” for determining patentability.
The Court acknowledged that the machine or transformation test was effective for evaluating process patents in the “Industrial Age” (quoting the Court’s opinion), but that there were “reasons to doubt” the test for “determining the patentability of inventions in the Information Age.” The court acknowledged that technological innovations such as “linear programming, data compression, and the manipulation of digital signals” required looking beyond the machine or transformation test to determine patentability.
The Court also specifically acknowledged the viability of business method patents under certain circumstances. On narrow grounds, the court noted that section 273 of the Patent Act talks about “methods of doing or conducting business” as part of a defense to patent infringement. The Court concluded that using this language, patent law acknowledges that business method patents must, “at least in some circumstances” be eligible for patent protection.”
link to newsbreaks.infotoday.com
Worth repeating and asking MM and Ned – Can you you do this?
“Straight up and without games, can you repeat after me and stop the madness:
BMPs are an eligible class of patent subject matter and whether any particular claim passes 101 must be taken on the merits of that individual claim.”
Can you do it? Can you give answers? After all, we are entitled to answers, aren’t we? (and the truth would be nice)
MM reprises the Col. Jessup role:
link to hark.com
He just doesn’t get that the manner provided actually does matter.
Ned, I’m just riding my hobby horse regarding the “substantial utility” requirement.
My hobby horse is, again, that the “substantial” requirement refers to a required tangibility or corporeality, not merely to a required non-triviality because, among other reasons, the assessment of non-triviality requires subjective considerations.
Yes, of course I KNOW that this view does not comport exactly with precedent–nor does my view that the preamble should always be considered limiting–but these views are part of a coherent system of interpretation of the patent laws, one that is, IMHO, vastly superior to the existing one that was created by the courts and PTO bureaucracy.
I’m just going to keep riding it, under the theory that if people hear it enough times, it begins to be perceived as truth.
Well, if the list was tangible it would qualify as an article of manufacture–however, the eligibility under 101 would depend upon the statement of utility.
Can you provide a statement of the utility you contemplate for the list?
“Carry on.”
Carry on indeed. That is what Shillers do. Do you really expect anything else?
Suddenly ends? Shrug…i think “interacts” implies a bidirectional exchange…reading is part of interaction..but i dont think reading alone is sufficient…. If I were just reading your comments without replying, would we be interacting?
I think not.
Yes that is my position. That is only one reason Benson makes no sense…see my miss addressed reply to Answers above…
Ned,
I think a problem with the Government brief is that applied math does not have to be applied to physical objects to actually still be real applied math.
The government fought (for various reasons – and not all of them ultruistic ones) for a very long time to deny patents to encryption technology.
Yet to deny that encryption technology is the stuff that patents were meant to protect steps off the stage of objective rationality. There is no credibility to be had by taking any opposing position.
It is one thing to recognize and then make a clear conscious decision and say, that for policy reasons, we want to carve out such a subject area from patent eligibility. It is quite another to attempt to somehow cloak such patent eligible items in some “Law of Nature” of “Abstract” cloth. To somehow shoehorn what is clearly man-made applied math to be some basic general math that it just is not.
Until you realize the philosophical result driven nature of such actions, you will not be able to see why most people view Benson as an abomination of a decision, that most people rejoice at what happened to Benson in Diehr as confirmed in Bilski.
Yes, I realize this is very much an idealogical battle and that a straight-forward, simple and honest statement of the arena and the “game” most likely will not be forthcoming for the simple reason that such a statement admits the game being played, and admits that philosophy indeed is the sole driver and that the plain and simple facts and law are just in the way of that philosophy.
But to close your eyes and pretend that such is not the case is rather trying to fight with your eyes closed. Yes, in your mind you can play all types of games to convince yourself that you are winning, but when a punch like Ultramercial hits you squarely on the jaw, and you are laying in the middle of the ring, those cute games you play in your mind will not stop the count to ten.
You will need to try to get up and try to box in a different manner. All I am telling you is to open your eyes if you want to be effective in this philosophical battle. Keeping your eyes closed and pretending is not doing you very well.
What you wrote, MM, is your typical “Do as I say now and agree with me or else you are a troll and a sockie and I am always right” type of BS.
You demand answers instead of replying to someone who has asked simple questions. Is the ability to provide direct ans simple answers beyond you?
When that person calls you out for your insults, you reply “Ha – you are acting just like I predicted and therefore you are officially a less than human thing and I do not have to answer your questions.”
You still have not answered the questions.
And much like the thread with the table-pounding identifier question, you do not even realize that the coward trap has been sprung on you. You blithely and arrogantly walk straight into the trap and then wonder why you are in a cage, boxed in by your own smarmy pride, crying that you are being picked on.
Boo-Fn-Hoo.
Let’s see some real game-free answers from you today, Malcolm. Real, straight forward, simple and game free answers are the key to the trap you have oh-so-willingly walked into. Can you free yourself?
Are you up to it?
MM,
You are a trainwreck all on your own.
Ned,
Do you think it is unethical to purposefully mischaracterize what another poster has said?
Do you think that when Bottom Line says “I don’t have to give you a single example” that this means the same as “I cannot give you a single example?”
“have to” and “can” have a very real difference as I read the comment.
I am puzzled as to how you can think such a shift, such a restatement is anything but a parlor game. Are you not above such games?
As for anyone having to prove themselves to you in regards to their knowing what they are talking about (your comment of “Your job is to provide us with some evidence that you actually know what you are talking about“), you have not shown that you know what you are talking about.
You are setting up a false test that only those that believe your version of reality, your version of the facts and your version of the law gain entrance. You have created a job that no sane man or woman would knowingly want.
Good luck with that. Your recruitment efforts are sure to gather those already firmly entrenched in your belief system. Those employees will no doubt never question you and will always goosestep to want you say is the “truth” (even as that “truth” has been exposed for a l_ie).
It’s a nice game to define the rules of your club like that. The rest of us will inhabit the real world where a programmed machine is in fact different from an unprogrammed machine, the real world that requires that if you want that new aspect of the programmed machine, you must actually change the machine to actually be able to have that new aspect, instead of waiting around for the Turing-complete Genie within the machine to somehow magically change itself.
MM, you appear to have gotten meaner over the years. If you drink, I recommend you stop.
6, good job on improving your writing skills and analytical skills. You have a long way to go, and you need to strive for knowledge not power, but good job.
IANAE, you haven’t changed.
Ned, you have too good a mind to waste on shilling this 101 nonsense. Get with the program.
Ned,
How do you handle Ultramercial, given your statement here?
Do you distinguish on the definition of “abstract” (something yet to be actually given, other thanthe famous pornography, I-know-it-when-I-see-it free for all)? It seems a bit difficult to maintain a sense of “abstract” if you are willing to concede that “the method and means were clearly described and even if they involved physical machines and processes” It seems such a concession – by its very nature – means the claim cannot be abstract.
Or do you simply ignore the law on (your) principle (and push your agenda of slipping into Bilski the Alappat over-ruling that never happened)?
Can we get a cogent answer, or will we get a blanket denial bordering on a character attack that Ultramercial should never have happened?
What rule or law of nature is captured here? That is what you have to assert as outlined by the SCOTUS in Bilski. So, boys, if you want to say it is abstract you need to come up with some psychotically generated rule or natural law, which you have not.
Also, boys, you haven’t answered the EE patent question. Shouldn’t we now remove all ee patents according to you? A/D converters, sensors, and general purpose computer can be used to similuate almost any ee circuit, so they are all abstract.
Information takes time, space, and energy to transform. Represented information is like the grains of wheat in Deener.
“autofellations of a hypocritical dxpshxt, then I expect only more restroom stall scribblings from you.”
Easily one of the most self-describing statements being projected onto others this thread has ever seen.
Aside from the longer and more robust rant by the same person, that is.
How very sad.
And likely to produce yet another flacid “ha you must be a troll, you are picking on me, stop picking on me or I’m going to cry” typical response.
It’s almost enough to stop picking on poor MM out of pity, out of the humanity of it all.
Almost. Then you realize the arrogant pr1ck actually believes in his own self-delusions and the continued azz-kickings are justly deserved.
Well, let’s see if he can live up to the “bravery” standard he has supposedly bought into on this thread and answer some of the “simple” questions, and maybe (just maybe, but I advise against holding your breath) maybe affirm the clear and game-free pronouncement on BMPs.
(just between you and me, I don’t think he is up to it)
A “simple” question such as this is guaranteed a non-answer from the bully who demands instant answers to his questions, which questions typically are of the loaded “admit you are wrong or admit that you are incapable of understanding how great I am or else you are a Troll” type – (shudder).
Perhaps someone who knows Malcolm can tell him just how pathetic his posts make him to be.
I think that when you force a 101 discussion and must rely on the MM-Ned to anchor one side of that discussion, the likelihood of a trainwreck is a near certainty.
A massive trainwreck with the shear number of posts, no doubt (which must be a bittersweat payback for Prof. Crouch). Yet another gory azz-kicking for the anti-patent crowd. That’s three multi-hundred thread azz-kickings in a row.
Ouch
One wonders though if the good professor would have an ulterior reward in quietly issuing a strong admonition against either MM or Ned agreeing with the (brave?) direct and uncluttered game-free pronouncements about BMPs. If indeed (as it appears to MM), Ned all along has merely been saying what MM thinks, then the two will readily affirm the statements and the multi-hundred threads can slim down.
But such clarity and directness is just not likely to happen. Not even your smarter than the average bear can force those so infused with Game to be simple and straightforward, much less be able to prevent backsliding into making things up out of whole cloth in order to cover the paper thin table, worn down by the viscious poundings it (and their proponents) have received.
Carry on.
“BMPs may be eligible for patenting provided such claims pass the MOT test that we have approved of for 150 years or some other test (other than the Alappat test) that has yet to be developed.”
Wrong
“BMPs may be eligible for patenting provided such claims like all process claims are an application of a law of nature or mathematical formula to a known structure or process. (Diehr)
Specific applications or improvements to technologies in the marketplace. (Research Corp)
An application of an abstract idea.
( Ultramercial) Citing Diehr, 450 U.S. at 187 (“an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection”)
::FIXED::
“This is a BMP. It is patent eligible because Bilski held BMPs were patent eligible.
Wrong
This is a process claim.
It is patent eligible because it’s a process, U.S.C. Title 35 101, subject to the conditions and requirements of this title.
Bilski “Upheld” BMPs were patent eligible.
::FIXED::
“If it is your contention that a claim may fail the MOT and still not be abstract, I would expect that you could at least provide us one example.”
Morse’s Claim 5
The system of signs, consisting of dots and spaces, and horizontal lines, for numerals, letters, words, or sentences, substantially as herein set forth and illustrated, for telegraphic purposes.
::DONE::
>>It is not clear that the calculation on one number >>from another number per se can affect entropy at all
Oh yes, this is chrystal clear. And if you were an engineer you know that. Entropy is not changed in one case when you know what is represented in the computer memory is some phyisical object and not in another case because the computer memory is representing a financial transaction. Entropy is changed just the same and your view of what the represented information is does not change that.
With each of your posts Ned you prove yourself more and more a shill.
Shame. Just when our discussion was developing nicely, it suddenly ends. I was wondering whether a machine “interacts” with a profile when it “reads” that profile.
“The case is meant to suggest that any claim that has an abstract output is unpatentable, not just claims that have risk as an abstract output.”
Wrong
.. the Court artificially limits petitioners’ claims to hedging, and then concludes that hedging is an abstract idea rather than a term that describes a category of processes including petitioners’ claims. ( Bilski )
::FIXED::
Yes, thats one reason. Another is the nonsene about blocking others from any use…duh, thats what patents do!…the ruling says if you invent something of no consequence you can get a patent….but if you invent something as earth shattering as a bcd to decimal converter, you dont deserve a patent….nonsense
“Now you may disagree that you did not prove your point that BMPs are expressly authorized by the case law, by Congress or by the Constitution,”
All patents are expressly authorized by the Statute and the US Constitution.
:: Fixed::
“Oversight, all I asked was something to support your assertion. I knew you had nothing. ”
Article. I. Section 8 of the Constitution and U.S.C. Title 35 Sec. 101 is something more than nothing.
::Checked::
“Many of us here understand the so-called ‘Written Matter Doctrine’”
LOLZ!
Coming from the same MM that NAL chased up the hill on this very topic?
She utterly destroyed you on this topic, left you whimpering and exclaiming “Written Matter Doctrine? what’s that? I don’t know what you mean.”
Every four to five months after you thought it was safe to come back out with your a_ssinine Cookbook examples, she would do it all over again. It was like Whack-a-MM.
She was relentless at whipping you to a pulp. She also chased you down with your sockpuppets, even if you did cry to Dennis about how only Dennis knows and Dennis should check ISP addresses – which you have again resurrected (like changing an ISP address is even remotely difficult). She provided word by word, “theory” by “theory” comparisons of “sockies” all saying the same things, each with the exact same idiosyncratic words, phrases and positions.
Now to see you post your “superior knowledge of the doctrine – you are a fricken tool. If there ever was a way for you to lower your credibility, you have just done it.
How many dimensions are there in your time space?
3, 4, 9, 13, 17, 23, 29, 1?
I have heard ardent and sincere believers expound for each of these.
I cannot find anyone who knows, much less agrees to what the “real” number actually is.
Even my numbers, albeit on a different topic, may have been “off.”
And Ned, what about the example given above? What about encryption protocols? Are you still trying to say that encryption protocols somehow do not perform real data transformations?
“I do as I please, when I please and I don’t answer to anyone, least of all to a schmuck like you.”
From a long list of excellent quotes, and excellent posts – quote and post of the day.
That is the singlest most saddest thing I have ever read.
Seriously. I weep rivers.
There must be some redeeming caveat – some hook to this cruel game…
I got it!
Malcolm has never spoken on patent issues! (at least substantively)
That’s it!
So that makes it more like Malcolm is right 0.0000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000001% of the time he actually posts.
Whew. Man, Ned, please don’t shock me like that.
Ned,
“But that is exactly what your post suggests: that some types of abstract ideas are patent eligible while others are not.”
That is not at all what the post suggests. That is not at all what anyone has ever ever suggested.
You are conflating your particular wretched definition of BMP – which to you MUST mean “an abstract method” and ONLY mean “an abtract method.”
You have fraudulantly equated ALL BMPs with the singular example.
It has been clearly, politefully, repeatedly, explained to you that you cannot do this, that there are many BMPs and each must be lloked at on their own to determine whether that particular BMP passes 101. JUST LIKE ANY OTHER (__fill in the blank___) MP, be it MPs for pharmeceutical creation, or anything on the long list that finally made MM see some light (granted, MM has a tendency to shadow over pretty quickly…)
The only possible way you do not see this is if you are clenching your eyes tight and trying not to see it.
I have a headache from your clenching your eyes so tight!
I wonder, is money a useful article of commerce?
I certainly find it very useful. So do my Congressmen!
I am so choked up, I broke a tag.
please, please Mr. Magic Wand Waver, fix my broken tag and give Ned the courage to at last simply and unequivically state:
BMPs are an eligible class of patent subject matter and whether any particular claim passes 101 must be taken on the merits of that individual claim.
I will never never never break another tag under this sockpuppet name.
“It is patent eligible because Bilski held BMPs were patent eligible. Let’s move on to 102/103/112.”
Close Ned, but a nuance off. A small but oh so critical nuance off.
All that anyone has ever said was to give peace a chance. No wait, someone else said that.
All that anyone has ever said was to treat BMPs just like you treat any other category of subject matter. Do not come out with some craziness that because the Bilski claim (singular example) was found to be not patent eligible, then all BMPs must also be not patent elgible.
The Bilski case does hold for that proposition.
Now if you ever manned up and answered the question put to you long ago (the Bilski 11 question – I know there have been so many left unanswered), you would recognize exactly what the majority in Bilski said, and we would have saved literally thousands of posts. Oops, I wasn’t going to draw any conclusion about your bravery (I am so sorry).
Straight up and without games, can you repeat after me and stop the madness:
BMPs are an eligible class of patent subject matter and whether any particular claim passes 101 must be taken on the merits of that individual claim.
Can you do this Ned?
No games, no added caveats – as none are needed – the truth of the statement is in the statement itself. This is it, your big moment, your moment of truth, can you do it?
And I can be kind in return: Thank you for sharing what a minority of two thought onthe subject. How I wish that more of the other Supreme Court Justices cared enough to agree and sign up to that opinion. If only enough did so, it would have made that thought into the majority decision, and we could rejoice with the force of law that such would bring. I share your sadness that it just did not happen.
I also share your sadness that the majority did not say “(other than the Alappat test).” I am truly shocked and oh so disappointed that quite literally, “Alappat” is not mentioned even once in “Bilski,” not even in the very long Stevens’ dissent, oops, sorry, concurrence.
Not once.
So I guess that when the CAFC has done what the Supreme Court asked of it in Bilski and reestablished the 101 jurisprudence, the fact that they have done so with Alappat hurts me deeply as well.
Anyone have a box of tissues they can share?
Oversight, let me elaborate just a bit. There is no suggestion in Bilski, that I can recall, that suggested the reason the claims in that case were held ineligible was because they were a directed to “kind” of abstract idea as opposed to being an abstract idea. But that is exactly what your post suggests: that some types of abstract ideas are patent eligible while others are not.
The claims in Biksi had as an output an abstract concept, in this case risk. The case is meant to suggest that any claim that has an abstract output is unpatentable, not just claims that have risk as an abstract output.
“Actually, I don’t.”
It’s okay, the Supreme Court does.
“appearing to reject the idea that merely because one could identify a process as belonging to a “category” of subject matter, that didn’t mean that the process was per se eligible. I agree with Ned, in that respect.”
If Ned had ever come close to saying that, he would not have been fighting so hard for so long to not answer the questions that have plagued thread after thread. (Questions he still has not answered, but I am not going to jump to any conclusion about Ned’s bravery on that accord).
Wasn’t it Sotomeyer that said, no matter how hard I squint I cannot make out that? MM, in order to bravely complete that legal thought you started, you need to actually complete the thought – repeat after me:
I do recall Ned accepting the FACT that BMPs are a patent eligible class and just because one process that may be identified with that class (Bilski has been ruled ineligible, that the category as a whole has not been ruled per se ineligible.
If Ned ever actually appeared to say such, then your agreeing with Ned will be a cause for quite some jubilation.
How about MM, up for the challenge? How about you say it straight up and with no games. Maybe Ned will be encourged, as you appear to be his hero, and if you can say it straight up with no games, maybe finally Ned will say it as well.
Mind you this should be a walk in the park for you. After all, I am not asking you to say anthing crazy like all purely mental methods are patent eligible, just like I would’nt ask you to say anything crazy like all pharmeceutical making methods are patent eligible because that craziness is the way of the “categorically” trap, and we just got finished with you agreeing with me that such “categorically” nonsense is a game we are not going to play.
What I mean by real is that they are present in time space. A change in something real changes time space in some way, changing the entropy of the universe.
It is not clear that the calculation on one number from another number per se can affect entropy at all, unless the number is measured from time space and the resultant number is used to affect something in time space. Just for example, compressing a stream of data on a communications link clearly reduces the energy to transmit the data on the link. Thus, compression algorithms are patentable if they are claimed as processes that include transmitting the compressed data on a communications link.
Now as we move from pure data in, data out to
business, the issues become a little more complicated. Reducing financial risk by hedging contracts ala Bilski might have some affect on reality, but how is not so clear. Do you see my point?
Risk, the output of the Bilski method, is abstract. It is not real.
“Actually, I don’t”
Is anyone surprised? Ned, you need to actually open up your eyes if you want to see.
But given that quite literally thousands of posts have been made attempting to get you to do that very simple thing, what are the chances that this particular post would do the trick?
Please take your time in explaining to Ned (feel free to use the hearing impaired caption technique) that his one BMP has been ruled patent ineligible means all BMP’s must be patent ineligible standard is out the window.
I don’t recall Ned ever saying any such thing. I do recall him appearing to reject the idea that merely because one could identify a process as belonging to a “category” of subject matter, that didn’t mean that the process was per se eligible. I agree with Ned, in that respect.
treat BMP’s just like you would treat any other category of method patents
Right. Like the category of “purely mental methods” that every Supreme Court Justice agrees are not eligible for patenting, and which are certainly encompassed by the all-consuming phrase “ETC ETC ETC”. Sure, I’ll treat ’em like that if you want me to, sockie!
LOL.
Perhaps its just an oversight, Oversight, (get it?) but you needed to qualify the example provided as a working, valid example.
If you just ask for any old type of example, you might be given a decrepit, l_ie of an example, trying to masquerade as something that be taken seriously.
While MM is only too happy to give such (in abundance), the thread has seen enough of those.
I see.
Actually, I don't.
Malcolm is right 99.5% of the time on patents issues, at least in my view. So when he speaks, I listen.
Listen Bottom line, I do not fault you for not being able to provide an example. There are none and neither will there ever be one. The Supreme Court is simply very reluctant to provide categorical exclusions when they are not completely sure, as is the case here.
Oh, I am just too impatient for IANAE to bite and then give my puchline.
If there is no functional relationship with the computer, then the “passive” media would not be able to effect any change and no computer would ever work. All loading of software is done with some sort of this so-called “passive” media. Amazing it is then, how real changes still manage to happen with this “passive” media.
Don’t you just love that transitive property? Which, after all, is just merely a type of functional relationship.
Anyone up for another Merry-Go-Round ride?
I think Benson makes sense, but that the reasoning of Bilski does not. I have explained to you why I think Bilski makes no sense. I assume, and you can correct me if I am wrong, that your position on Benson is as you stated: That the transformation of data bits from one state to another is sufficient for 101 purposes and that is why Benson makes no sense.
Let us say, for the sake of argument, that War and Peace had no functional relationship to the claims at issue. Could they be given weight when considering 102/103?
At least it makes more sense if you just remember what happened to Benson in Diehr as stated in Bilski…
Just saying, not like this has been a question put to anyone to answer, or anything like that…
Perhaps the great Diehr authority MM can answer this question. How about it, MM, up to answer a question? You are not scared are you? How does Diehr change Benson as confirmed in Bilski?
Ooooooh, I just can’t wait for this very brave answer!
Un Fricken Believeable!!! Truly.
A better way, yes.
They say, “This is a BMP. It is patent eligible because Bilski held BMPs were patent eligible. Let’s move on to 102/103/112.”
No matter how many time I confront this argument with the observation that the BMP claims at issue in Bilski were held to be patent ineligible and that for this reason their statement is flat out wrong, they refuse to budge from it.
Look, I will be generous here and fix their statement to align with the Supreme Court’s holding:
“BMPs may be eligible for patenting provided such claims pass the MOT test that we have approved of for 150 years or some other test (other than the Alappat test) that has yet to be developed.”
But, the Justices are not sanguine about the ability to develop such a test. Breyer and Scalia wrote,
“[I]n 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.” 130 S.Ct. 3218, 3259 (2010)
Oh, anti-patent sockie. You aren’t even intelligent enough to understand that “ETC ETC ETC” includes ineligible methods in ANY PARTICULAR ART UNIT, WHICH IS THE ENTIRE POINT OF MY POST.
“Or is your position, sockie, that every claimed process is eligible subject matter”
Quite the reverese – that there simply is NO categorical exclusion of eligible subject matter for ANY category of process, be it a BMP or any other process I listed.
Thanks for proving my point. Thanks for playing.
Please take your time in explaining to Ned (feel free to use the hearing impaired caption technique) that his one BMP has been ruled patent ineligible means all BMP’s must be patent ineligible standard is out the window.
I know so sad, I am so verklempt. Pass me a tissue please
and treat BMP’s just like you would treat any other category of method patents.
“Monkey”
Monkey? Are you allowed to say Monkey?
Where are the blog police before MM wets himself?
I’m surprised Twitter didn’t make additional non-infringement arguments. Namely, steps (a) and (b):
a) selecting a field of endeavor;
b) compiling a list of members in the selected field
I’ve used twitter and don’t recall seeing anything like (a) and (b), although I haven’t read the patent.
Above a question was put to MM, who has not answered (draw your own conclusions).
Reprinted here for your ease of enjoyment:
MM said in reply to Les…
The claims says nothing of paper. It says machine readable media.
Paper is machine-readable media, Les.
Welcome to the 20th century. That’s right. The 20th century.
Reply Oct 27, 2011 at 12:26 PM
Help Me said in reply to MM…
“Paper is machine-readable, Les”
That would be indicative of a functional relationship, wouldn’t it?
Well then, you obviously fail the (c’mon you’all are intelligent) part
Oh, sockie. You aren’t even intelligent enough to understand that “ETC ETC ETC” includes ineligible methods. Certainly some business methods are just as ineligible as those methods (indeed, some business methods fall within those classes of ineligible methods and are ineligible per se). Or is your position, sockie, that every claimed process is eligible subject matter? … because you believe it to be so?
Here’s a kleenex, sockie. Your crying is about to begin … again.
Oversight, I believe the brief did say that a process claim’s steps have to exist in the physical world. This clearly implies that mental steps can be ignored. But they did provide a caveat that mental steps that modified physical steps can be given weight. See below.
From the brief, at 28,
“To be patentable over the prior art, a process claim must recite a series of steps in the physical world that differs from any series of steps that was previously known.”
FN. 8, “This does not mean that every process claim that recites a mental step is unpatentable. Claims that recite concrete processes with a “decision tree” structure (e.g., “Perform steps A and B, and then do
either C or D, depending on the results of A and B.”) are both common and acceptable. In that sort of process, the mental step affects the physical steps to be performed. But the mere recitation of a mental
inference at the end of a claimed process—in effect, a guide to interpreting the results—does not distinguish the process from the prior art.”
Like the boiling egg example, the decision to pull the egg from the boiling water may be based on a mental step because the physical step is modified by the mental step.
“a real transformation in data occurs when the data source or data output, or both, are real”
What does it mean to say that the data source is not real?
What does it mean to say that the data output is not real?
Real what? A real data source? A real data output?
This is actually not an outrageous putdown. A real transformation of data is merely a transformation of “real” data. “Real” data can be data about “real” things, but it can also be data about completely imaginary things (like the legal content of MM postings – who will no doubt quip quite brainlessly that these are not the stuff patents are for).
For example, no one in their right mind would claim that the very real data transformations that allow real commerce to happen over the internet with selected encryption protocols are not in fact real transformations (and to think that one offshoot if this were in fact not the case, is that this blog would not exist – then where would allof us be?). Yet the inputs to those very real data transformations, such as keys, passwords and user ID’s may not be real in the sense that Ned would indicate. Clearly, the inputs being “real” do not (or more correctly, may not) matter to the very real data transformations.
Wrong
No such example has been provided.
:: Fixed::
“OK, then. please give me the quote from the
Constitution. I assume we agree that we are talking about the U.S. Constitution.”
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” Article. I. Section 8
“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.” U.S.C. Title 35 Sec. 101
::DONE::
There is nothing more immaterial than what “Malcolm believes“.
And I can assure you that at least one satisfies your, no wait, IANAE’s fallacious request.
The bottom line is no one has to give you even a single one – because the law says what it says regardless of anyone giving you even a single one.
Now you understanding that this is so may be another question.
But if you don’t understand that, then even anyone giving you your single example will not likely satisfy your blind disregard for what the law is.
Oh!!! Yo, Ned!! Go!!!
Finally someone with the diameter to say it the way it is. When I retire, I’m sending all my clients to you. Both of them.
(Uh . . . please don’t forget Pasquale J. Federico, who was equally responsible for that scrwup we call the Patent Act of 1952, now amplified by the scrwup we call the Leahy-Smith America Invents Act of 2011.)
“ Easy mo fin’ peasy. Enact it and see this sht go away.”
Close the doors and watch all those claims go away.
That would be quite easy. But that does not address just who is falling down on the job does it?
There are many things wrong with Benson. Thats just one of them. Im here to till you that court decisions are inconsistent and contradictory. Didnt you just agree with me that the SCOTUS Bilski decison doesnt make sense? Benson makes even less sense.
“who somehow only manages to find fault with my arguments and never with those of”
Well, can you blame him? Yours are so easy to see and so plentiful. They are there every time you post!
IBP, your not processing this whole thing. Snort something and try again.
The “allowing” is not a “limitation” at all. It is an element — a step — a gerund, as OSC points out.
Limitations are adjectives or adverbs. A limitation tells you something about the element it modifies. “Allowing” is not modifying anything because it is an elemental step of the claimed process.
Not so fast – there may be a functional relationship with one or more of those steps and the explicit book War and Peace. It may not be substantially irrelevant at all. Limited, maybe. But not irrelevant.
You need to be a bit more explicit about what those steps are.
I don’t think he did – he is missing the point that if there is no functional relationship, then the printed matter can have no functional relationship with the computer.
I think it’s called the transitive property (you have to put these things in simple math terms).
Davis, you obviously don’t understand grammar sufficiently to appreciate that distinguishing restrictive from nonrestrictive clauses is a linguistic imperative. It is not “fiction.”
” . . . are abstract ideas that cannot be patented.”
is a totally different thought from:
” . . . are abstract ideas, which cannot be patented.”
The grammatical Genghis Kahn that drafted Twitter’s jury instruction actually said:
” . . . are abstract ideas which cannot be patented.”
Consequently, one can’t determine which meaning was intended. (In this example, the flaw is more in the missing comma — the choice of “which” was correct, assuming he/she was pointing out the legal rule that no abstract idea can be patented.)
But your position that the restrictive/ nonrestrictive distinction is “fiction” is laughable. It’s also dangerous to your clients’ interests.
Davis’ clients, please take note.
“with the substrate the matter is printed on”
Except that added item isn’t what the exception says.
But then again, you knew that.
“They say that BMPs are not categorically excluded, and in same breath, exclude them nevertheless by declaring the claims at bar, which were classic BMPs, to be patent ineligible. ”
Wrong.
The Court excluded one particular method of Hedging.
Hedging is not representative of all BMPs.
Therefore the Court did not exclude BMPs.
::FIXED::
“Or would you just like to continue trolling?”
Dammit Gumbie, that’s MM’s job.
Maybe you don’t listen so well, MM –
I’m a great listener, sockie. I know exactly what PP said. I also know he’s full of xhxt and he’s incapable of doing what he claimed, at least not under his PP pseudonym. Hence my reply to PP. Keep trollin’, sockie. Maybe you and PP can be friends someday and share the cheetoh bag together at the magical blog comments section of your dreams. Wouldn’t that be special?
Well then, you obviously fail the (c’mon you’all are intelligent) part.
No, thank you for playing anti-patent txxbagging sockie.
Too Easy, “fail the MOT and not be abstract?” I am sure your reference to Tuesday and MM suggest that he believes that the patents that issue on Tuesday are not abstract, at least not the ones directed to business methods. However, I can assure you that Malcolm believes the opposite.
meaning a process or method of making pharmeceuticals, are patent eligible, leaving only the questions of 102/103/112…
Do you mean like that type of question?
I think PP likes to piss on little targets. He pissed all over you.
This is of course different than liking little PP’s. MM has that market cornered.
Your job is to provide us with some evidence that you actually know what you are talking about. If it is your contention that a claim may fail the MOT and still not be abstract, I would expect that you could at least provide us one example. But since you cannot, then either such is not possible, or your contention that it is possible is incredible.
sockie: Maybe if you actually supplied a valid legal argument you could end your dealings.
Oh, look it’s the “Valid Legal Argument” Concern Troll again who somehow only manages to find fault with my arguments and never with those of the Quinn-lovin’ pxtxnt txxbxgger ignorati.
In fact, sockie, I’ve posted numerous “valid legal arguments” in this thread already, including one of the first comments to thread, i.e., my October 26 12:54 pm argument about the obviousness of the claim. Tell me why you think it’s not a “valid” argument, sockie. Better yet, ask your Dear Leader Senor Quinn what he thinks about it. Be sure to tell him that MM sent you, and be sure to tell him that you were trollin’ here with your name-callin’ bxllxhxt sockie.
Maybe you don’t listen so well, MM – PP just finished saying he doesn’t play your game by your edicts.
Are your ears full of wax, or something else?
Les, I would just like to reiterate that if claim elements have no function relationship to other claim elements, they either render the claim invalid under 112, or they can be ignored under 102/103. Do we agree on this much.
I give you an example once again. A method of printing a book comprising steps A through Z, wherein the book is War and Peace. I would presume that you would agree that which book is printed is substantially irrelevant to the claim's novelty. Why? Because which book has no functional relationship to any physical step.