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.
No, your post was argumentative, inane, insulting and inflamatory.
Your expertise at lacking intelligibility notwithstanding, my post is direct and to the point for any person of any substantial intelligence: your posts contrive conclusions that are not supported by anything but wild imagination.
Game: “Umbrage” noted.
Get over yourself – especially as the hypocrisy of you telling someone else that they are arrogant while believing that there is some veracity that attaches to your posts merely because you use your real name.
Your post lacks a basic requirement: intelligibility.
Sent from iPhone
“That said, I do believe the drafters of this measure assumed that 101 issues would be included in the new post grant review. Why, because their leaders assumed it, knowing all as they do.”
No matter how hard I squint at this, I cannot see any reason or sensibility there.
“In the end, they may be right‘
Let me get this straight – at the same time you are taking umbrage for being taught something you attempt to say you claimed first, you are taking the position that you may be wrong…?
Likewise, I see no sense in this part of the post.
Paul Harvey, “already brought to my attention.” I think I was the one that originally pointed out that validity under 282 excludes 101.
Paul, it is posts like yours which claim to instruct me as to points I was first raise here on Patently O is what drive me nuts. You guys are both insufferably arrogant and ignorant in one stroke.
That said, I do believe the drafters of this measure assumed that 101 issues would be included in the new post grant review. Why, because their leaders assumed it, knowing all as they do.
In the end, they may be right on this issue, as they have dicta from Graham v. John Deere on their side.
But, Paul, you can take your arrogant attitude and go to H.
“and has required special procedures implemented to have them reviewed for validity purposes.”
most telling: there is no part of this “special procedure” to review those “covered” business methods for 101 subject matter purposes.
Of course, this has already been brought to Ned’s attention (too bad it does not support his agenda).
And that’s the rest of the story.
Good Day.
Night, Benson disparages patenting of “programmed computers” without a new result. I see nothing radical at all about this notion. It is not 18th Century. It is the difference between claiming a mathematical algorithm in the abstract in a mathematical algorithm applied to a practical result.
Now referring to Walker, the claims tagged or “appended” in the words of the US government brief him Prometheus a mathematical algorithm onto an old data-gathering method that involve transformations. There was no limitation in the Walker claim asked to the means or methods for conducting a mathematical algorithm. And as you say, if all that was invented by Walker was a specific apparatus for tuning the soundwaves to enhance the echoes, the process claim could potentially cover all apparatus that performed this function regardless that Walker did not invent such apparatus. So indeed that was the concern of the Supreme Court it could’ve been handled under section 112.
Malcolm, through many posts, has illustrated the problem of a pending a mental steps at the end of data gathering steps. They essentially make the infringement the practice of old technology.
All that being said, I have no specific reason to say that if the claims were limited (expressly or by necessity) to the execution of the mathematical algorithm in a computer, the claims just might be patentable to the extent that they operated on real physical data. I think the Federal Circuit has drawn this distinction a number of cases, and I have no strong objection to this line of thinking.
Night, all you say is true. They did not ban business method patents because there is no well accepted definition of the business method patent. The Supreme Court said so; and the definition of “covered” business method patents implies that there are business methods that are technological in nature that Congress “approves” of patenting. But at the same time, Congress strongly disapproves of business method patents that are not technological in nature and has required special procedures implemented to have them reviewed for validity purposes. See section 18 of the AIA.
Ned,
That was not an apology.
Can you not even read a gentle help to you without twisting it?
Of course, you will not read (much less understand) this post, as you have decided to clench your eyes tight, stick your fingers in your eyes and chant loudly “nah nah nah” over and over again, lest some reason slips through your defense and further rattles your agenda.
actual inventor, I accept your apology. I must admit that when folks repeatedly refuse to acknowledge the congressional hostility to business methods openly displayed I lose it.
Reality Check, no matter how many time you deny it, there are folks here, like AI and a few other sockpuppets who have repeatedly said exactly this. They resisted for multiple threads even acknowledging that the Bilski claims were BMs for the reason that they knew their broad statement of patent eligibility was inconsistent with the actual holding in the case that these claims were unpatentable. As a final defense, the sock puppets propose that the only business method excluded from patentability are hedging methods.
No matter how you parse it, the original proponents of "BMPs are patent eligible," definitely had in mind that a BMP was in fact eligible for patenting, so move on to 102/103/112.
You cannot
deny the truth.
Ned:
May I suggest that the reason why everyone with the exception maybe of mooney, believes you have no integrity is because having lost the debate on the merits you now only re[ply with ad ad hominem attacks.
You completely ignored my answers to your dare and your questions about the Useful Arts, while continuing to ask the same questions and declare no one could answer. When you do reply you call the commenter names rather than simply rebutting with fact law and reason.
And you are totally unreasonable Ned Heller. When all you can say is, “Shove Bilksi 14”, it’s not even funny anymore. It’s actually quite sad to see how far you have fallen and continue to sink.
"So,… when congress had the direct opportunity to outlaw business method patents following State Street, they chose not to."
They had no clear definition of BM, just as did
the Bilski court. From Bilksi, " Nor is it clear how far a prohibition on business method patents would reach, and whether it would exclude technologies for conducting a business more efficiently. See, e.g., Hall, Business and Financial Method Patents, Innovation, and Policy, 56 Scottish J. Pol. Econ. 443, 445 (2009) ("There is no precise definition of . . . business method patents")."
So, what they did was to remove the implied endorsement in 273, and adopt the new procedure for special review. Congress, by doing this, indicates hostility to BMs not of a technological nature.
I will repeat, as you do not seem to be able to hear anything above your zeal:
No one has ever made this a point of contention except you Ned. Only you are conflating and kicking up such dust.
No one has ever used the “categorically” meaning coupled with inclusion in order to somehow bypass a 101 examination on the merits of a particular method claim.
Now, would you have this same visceral reaction if someone made a comment in passing like:
“Medical method claims are patent eligible matter.”
Would you?
I think not. In fact, when this was put to you, rather than a visceral attack, you went into a rather blasé stupor.
What does that tell you? What do you think that tells everyone else?
Think man!
Hey 6–
What do you know about good faith and fair dealing, ethics, and most importantly, professional responsibility?
NOTHING.
You bear essentially no costs whatsoever for your own errors and omissions–in fact, you can be, and sometimes actually are, rewarded for them.
You know essentially nothing. You’re like a sheltered little kid, totally ignorant of what it takes to survive in a world in which you’re not attached to your mom’s apron strings.
What do you know about professional practice and professional responsibility?
NOTHING.
So stop pontificating on an issue about which you know essentially nothing, and spare us your ignorant blather.
6
Sorry, but since it was you who at 8:34 suggested that caselaw was responsible for the allowance of this claim, the burden is on you to name that caselaw and show precisely how it was responsible in this particular situation–as I requested at 11:23
I’ve already discussed how the claim should have been rejected based at least on 112.
You have not responded with any particular caselaw.
Your caselaw is itself merely imaginary at this point, and you therefore offer no evidentiary support for your argument.
Your argument in a nutshell? “Blah, blah, blah, caselaw, blah, blah, tards, blah, blah, blah…”
Finally, prior art isn’t needed for a 112 rejection.
“They skirt them.”
Projection game. Check.
Don’t answer direct questions game. Check. (Fn cowards)
Mischaractize law game. Check.
LOLZ.
Shades of NAL. Looking for that Sam Hill to run up for more beat down. And the beatdowns will continue because the Shilling shall continue.
And, Ned, etc. did you ever really think about what is going on. Re-read Benson. Benson is clearly very old thinking. Benson disparages computeres.
Don’t you think that the progressive minds of the SCOTUS realized that information processing methods had become more than the theory of operation that they were in Walker and Morse. That it was not longer a theory of operation method for building machines, but rather the method itself was what was importion. Some probably realized too that the arguments in Walker are really scope of enablement arguments (which are what the abstract argument really is, i.e. as discuss in Bilski the abstract argument is to identify the idea or rule that is being captured and determed whether or not the claims are broader than then the scope of enablement. Walker is very good example of going through this logic.)
Diehr realized there was a qualitative change in how information processing methods should be viewed.
Occam’s razor:
Diehr plus the AIA means that without being very radical the SCOTUS cannot rule that business method patents are unconstitutional, which by the way is what their judicial exceptionss are saying.
I think Ned has shown us that he comes at this with a zealot’s perspective and trys to project these same radical feelings on us.
The plain unemotional facts are that Congress just passed the AIA and didn’t ban business method patents, the SCOTUS in Diehr said that old arguments could be used to ban them (in which Walker is a good example of the type of argument they could use), but that these old arguments shouldn’t be used and Congress should decide.
Benson is on the side of banning business method patents, but in Diehr as affirmed by Bilski the SCOTUS over ruled portions of Benson.
Those are the non-teaparty facts. As much as 6, MM, Ned, etc. would like to say that we are the radicals and we are the ones mischaracterizing facts, they simply cannot answer to these facts. They skirt them. They do not answer to the EE patents questions (that is that one can represent almost all circuits as a/d converters and sensors; thus rendering almost all ee patent ineligible for patentability under their logic.)
“On its face, Congress did the opposite.”
So,… when congress had the direct opportunity to outlaw business method patents following State Street, they chose not to.
So,… rather than choosing to outlaw business method patents, congress chose to craft a limited defense against something that Ned thinks are not patent eligible to begin with.
Will someone explain the logic involved in thinking that something not patent eligible to begin with needs a defense?
Anyone want to give this a shot?
And then show how this is opposite allowing business method patents to continue as eligible subject matter. Because if you ask me, if you really are hostile to something, and you have a chance to simply say – “business method patents are not patent elgible,” you simply say that directly. ANd if you have a chance to say that and don’t, and instead treat the matter as one of fact, then it is plainly clear that business methods are patent eligible.
What you don’t do is create a defense that automatically means that the eligibility is affirmed to exist. This is the explicit reasoning used by the majority of the U.S. Supreme Court in Bilski. As far as I know, there is zero evidence that the congress in AIA indicated that they were overturning this aspect of a Supreme Court majority decision.
That would make another good question – why the silence on this matter in the record of the AIA?
Your Excellency, you can’t handle the truth. Deal with Congressional wrath. Deal with the repeal of Section 273. Deal with the new special handling of BMPs, set up for special reexamination. Deal with a new definition that specifically forbids the courts to do what happened in Bilski 14. Deal with the truth instead of your fantasies.
You know, your Excellency, you post is downright pitiful. Repeat the mantra, shall we? Bilski 14?
Yeah sure.
Congress repealed 273 and replaced it with a definition of BMPs.
So there.
Take Bilski 14 and shove it.
OMFG
I nearly died from laughter.
9-count? Ned won’t come to any time soon. To say that Ned has taken a beating would be the understatement of the millennium. The police were called in and were not even sure that the remains were human! Myself, not sure they were human to begin with, I thought more like jackal.
The beating was so savage, even Genghis Kahn was seen whimpering.
Not only that, but the whole bunch of anti-patent freaks including MM and IANAE were shamed and silenced completely, their cowardice ringing out with their refusal to answer questions (the old cut and run), or left only with mindless jellyfish babble (sometimes that sounds like they usually do – but the stoppage of that babble is sweet surrender. Ned’s threats of future SC reversals of current law sound like he is playing more than one role in his Wizard of Oz patent world, switching from the man behind the curtain to the Wicked Witch of the West with his cackling “I’ll get you, my pretty, and your little dog, too!” At least it makes cleaning up Ned’s remains easy – they will just melt away with a bucket of water. His treatment of 273 is the smoke from the man behind the curtain. He ignores the statutory constructions and ignores the fact that congress rather than outright ignoring business methodds after State Street – which they could have and would have if his delusions were correct, created a defense. One does not need a defense against something that is not patent eligible in the first place. You ever notice Ned’s silence on the truly salient points? He just tuns a few more knobs, leans over into the microphone and bellows – pay no attention to those gaping holes in my theory, pay no attnetion to the fact that I don’t answer questions or that I evade important canons of statutory construction in order to keep those visions in my head dancing away.
I will tell you this for sure. If we had this crew sent to Washington to write laws with the same ruthless dispatch, yet honest and fair-mindedness shown here, not only would the patent law be a thing of beauty, but the war on drugs, the war on poverty, the war on racism and the war on terror would all be over.
Oh, and
! ! ! BILSKI 14 ! ! !
And I will add the new cry:
! ! ! BILSKI 11 ! ! !
I might even add
! AIA !
I am going to now re read the entire blog. Then I am going to read it again.
! ! ! BILSKI 14 ! ! !
Night, I beg to differ on 273. Congress had no intention to suggest when it passed 273 that it endorsed State Street Bank. When 273 was misused by the Bilski supporters, they replaced the old 273, and provided a special defense to BMPs, that defined them and in the same breadth said that that definition was not to be taken as Congress’ endorsement of the thought that BMPs were patentable subject matter. The pattern is as I state it. Nothing in the pattern suggests that Congress wanted to endorse State Street Bank. Just to the contrary.
Now the reason why they did not ban BMPs, is probably for the same reason the SC did not ban them — there is no good definition of a BMP, one that would include only the bannable BMPs and exclude the so-called technological BMPs. They left that to the courts.
Ned, your characterization of how 273 was changed and what it means the courts is in simple fact outrageous. The fact that Congress knows that many patents are granted for business methods and has passed new legislation that did not exclude them from 101, means that unless they are unconstitutional that the SCOTUS has no right to exclude them from 101.
That, Ned, is the way our laws work. You write a nice little story about poor Congress and how the SCOTUS needs to help them out. That is not the way it works. That is con law 101.
And, let’s fact it, in Diehr the SCOTUS already spoke on this issue. They said that they could construe some argument based on old technology and old arguments, but that they shouldn’t and that Congress should decide. So, Ned, you are factually just wrong and ridiculus.
Ponding, a sequence of steps is a program, and a program is patentable as a process provided it claims a new result. A sequence of steps is not claimable as a new machine or an article manufacture despite Alappat. Alappat is flatly inconsistent with Benson and cannot stand.
Scanning an image into a computer and printing about on a shirt sounds to me like a patentable process. Now if your embroidery machine was modified to include a scanner and a silkscreen printer, the combination might be patentable as a new machine.
Pants position is that Congress has endorsed business method patents by providing a singular defense against them when it passed section 273 in the 90s. On its face, Congress did the opposite.
Regardless, Congress noted that the argument was made in Bilski that somehow section 273 represented congresses recognition that business methods were patent eligible. Congress reacted by repealing section 273 and replacing it entirely with the difference statute. They moved their defense to business methods into a new statute, section 18 of the AIA if I recall correctly. In this new defensive statute, they defined business methods but expressly excluded the use of this definition to imply any congressional endorsement that business methods were
patent eligible.
I think the record in Congress is clear. Congress is hostile to business method patents. They provided a defense in section 273 in response to State Street Bank. When their defensive statute was warped by advocates of business method patents into an endorsement, they reacted forcefully to repeal section 273 and replace it with a even harsher statute against business methods, but this time with a direct prohibition on the courts to construe their defensive statute as an endorsement by Congress of the concept that business methods were patent eligible subject matter.
From: TypePad
Where we are.
The BMP in Bilski failed the MOT (as determined by the Federal Circuit en banc). It was held, unanimously by the Supreme Court, to be directed to unpatentable subject matter. Four of the justices would have proscribed the claims before it on the basis that they were directed to business methods regardless that the claims passed or did not pass the MOT. Breyer and Scalia noted that all nine justices agreed that while the MOT was not an exclusive test, it was an important test. Breyer and Scalia further expressed the opinion that any claim that failed MOT would probably not be directed to patentable subject matter.
Stevens has been replaced by Kagan. We can expect that there will remain at least four votes on the Supreme Court to ban business methods patents as a category as unconstitutional. However, it is equally clear that the Supreme Court will remain unanimous that any claim that fails MOT will not, in all likelihood, be held patent eligible.
“Pants is wrong. That better?”
How exactly does this actually address the points that Pants made?
Are you purposefully being an a_ss?
Do you know what it means to address the points of an argument?
Are you being an a_ss because you cannot address those points?
Bull. For The longest time there are posters here that have made statements that BMPs are patent eligible. There was no qualification whatsoever in these statements.
Sent from iPhone
I've just taken my meds . I can now see reality the way it is.
In my new reality, all BMPs are patent eligible . Let's move on to 102 /103/112.
And let's add that a sequence of program steps is claimable as a new machine or article manufacture.
Sent from iPhone
Agreement with is not the same as agreeing that Malcolm is serious and is not playing games.
Sent from iPhone
Pants is wrong.
That better?
Sent from iPhone
I have no idea what you are talking about as I no longer read or care or even listen to any post about Anon.
Sent from iPhone
“you conflate categorical exclusion with categorical inclusion.”
No one has ever made this a point of contention except you Ned. Only you are conflating and kicking up such dust.
No one has ever used the “categorically” meaning coupled with inclusion in order to somehow bypass a 101 examination on the merits of a particular method claim.
You are being daft and obtuse, and your word-spinning is only making you look silly.
Business method patents, like the long, long, long list of other types (or other categories) of method patents, each must still face and pass the 101 test.
No one, except you Ned, has ever indicated otherwise. No one has ever exclaimed that business method patents are different that other types of method patents and deserve special treatment, the position that you are railing against is not that position. The position that you are railing against is that business method patents are on the same footing as other types of, other categories of, method patents. No more, no less.
You are deceitful for continuously trying to spin the opposing side’s position into something that you have a chance of fighting.
No one is fooled by this petty parlor trick, this game of yours. Your reshuffled fight is only in your head. Your reshuffled fight may be more comfortable for you, but you should pay attention to the actual fight going on. You are being destoyed in the actual fight.
Ned,
Your denial of reality is pervasive.
You are indeed quite delusional.
Maybe that bell ringing now that the count to ten has been reached will wake you. Maybe the smelling salts will wake you. Maybe, you are a lost cause and nothing will wake you.
“Malcolm is epitome of responsible and accountable posters.”
There is absolutely zero credibility in this statement.
Zero.
Ned,
How about actually addressing the points that Pants On Fire makes, rather than just making a flippant comment about a wrecked BMW?
I would appreciate it if you would not be so cavalier with someone who obviously is trying to hold a serious conversation. The canons of construction presented make a strong case against you, and being flippant in return indicates that you have no case to make in defense of your position.
You seem to make a lot of calls for order rather than chaos, but only too easily you play games and make chaos instead of addressing points in an orderly manner. Where I come from, that’s called being disingenuous, and is not a very convincing position from which to hold a conversation – or to convince anyone that your position is the correct one. Rather, as has been noted – it is quite the reverse.
“the Court seems to side with their own precedent and not with Rich.”
That would be correct only if Stevens had written the majority opinion in Bilski.”
He did not.
Many who have stakes in preserving the status quo raise the spector of “chaos” as a bogeyman. Patents are and should be a scary thing for those types of people because patents are all about upsetting the status quo with new and exciting – even game changing (to play a pun) – ideas in each of the equal categories of patent eligible subject matter.
Sorry Ned for the losses to the doctrines that you merely wish constrained patent law. As evidenced in the position that Stevens was forced to take (and I have inside word that such was not taken easily), Stevens view – and your view – are minority postions which are not the law, no matter how many times you state otherwise.
In fact, Anon has rather kindly pointed out that your insistence on making a position that is not so (the reality of what is the law) only mars your credibility. To use another analogy, digging deeper will not get you out of that hole you are in and there are plenty of people who will point out that you are moving farther away from escaping that hole with your zeal.
Now don’t tell me that the design on the Cup is typed on each paper…. I thought it was more like they do with Wallpaper or Fabric like the Patentater told me he did. See… there I go I learned something SOLO CUP should have filed for a Copy Right.
I’m talking about the Solo Cup Case. Although I did also read the Biliski Case too.
I’m not a Lawyer and you all know that… But A sewing Machine and an Embroidery Machine have already been invented. But the Programmed Disc that makes the design needs the Sewing Machine to function.And i can touch it and feel it. and it functions as an added design on my Shirt. It may not be Utility but it is a Design. I don’t know where it would fit.
And Biliski is just a bunch of information that is man produced and put on a Disc also that is put into a Computer that was already invented.. But what it spits out is all man produced. Sure the Computer puts it in a fast form and also is put together by many men that are usually pretty smart but it is all interaction that is not tangible. I can’t use it on the side of my Boat? I can’t get it to play music. But I can do one thing with it though…
And along the way as the SC says you have to judge each individually. To me the program that cured the Rubber in time helped the Patent to be Patent eligible. But that is why I hired Lawyers LOLOLOL.. And it still ain’t right!
I did read it Ned.
Babble Boy, no. The posts are still there for me.
As to Giles Sutherland Rich, I should write a book.
Jeramiah, there is not categorical exclusion by Congress. Read Bilski.
Night, thank you for reading the cases.
You say I sound like Richard Stern? Well, it was he who taught me to read and understand the Supreme Court cases to understand patent law. As you think me, I thank him.
Night, the patent office in response to the presidential commission determined that software related inventions that produced a new result would be patentable as processes. Judge Rich fought the patent office tooth and nail, and then fought the Supreme Court. Judge Rich has all but lost the battle on all fronts. The mopping up operations are underway. The patent office position was right in the beginning, is right now, and has prevailed.
Surprise, obviously you are very optimistic. While he Supreme Court held that BMPs are not categorically excluded, they held the BMP before it in that case to be ineligible. One cannot read this case and accept the proposition that BMPs are generally patent eligible. Not one single example of a BMP has ever been approved by the Supreme Court. Not one!
Night, I actually have seen you come around just a bit in our conversations. You now know that I am not categorically against patenting mathematical inventions. I simply favor patenting them as processes because in mathematics is independent of the machine, of the circuit, or even of the biological process that may perform the calculations.
I hope you also have begun to understand that simply because an old machine is being used to perform a new use, that the machine is not patentable as a new or as an improved machine. The doctrine was well established once upon a time that one could not claim the function of a machine, i.e., its operation. The function of a machine means applying an old machine to a new use of the old machine.
At some point in time in the future, the issue of Alappat will be squarely presented, and that case will be overturned. Claiming a sequence of steps performed by machine should not be patentable as a machine. This is obvious.
Listen, evolution, I am not going to even read your post as is is filled with misrepresentations and distortions beyond description.
Simply put, the Supreme Court in Bilski chose not to decide the constitutional question. This does not mean that they decided the constitutional question as you apparently contend. Get it through your thick skull that the constitutional question remains open. There are many, many tourists beyond simply Stevens and his minority that believe that business methods are not within the useful arts. There may be a case sometime in the future which forces the Supreme Court to address the constitutional issue. Until then, they will avoid it.
What Supreme Court decided was that Congress did not categorically exclude business
methods. That is all it decided in Bilski. You cannot rationally elevate this decision into a decision that decides the constitutional question. That is irrational, but it is consistent with your lack of thinking capability so grossly on display in so many many posts.
May I suggest, actual integrity, that anyone who seriously argues, as do you apparently, that business methods are within the useful arts, either is completely irrational, or if rational, lacks integrity. You have a great deal of gall to suggest that I lack integrity by suggesting that BMPs have never been considered to be within the useful arts. You are completely and totally… Let me stop there. You can fill in the blanks.
It was a Station Wagon.
Legal basis? Simple: machines and articles of manufacture were listed in the first act of 1790. They are so evidently included within the useful arts. Compositions of matter were added later, these are clearly within useful arts. Processes were added by the courts in due course: they comprise a series of steps that have a practical result within the useful arts, i.e., transforming an article into a new state or thing. In the same time period , courts have distinguished between the operation of the machine and process.
Alone among the three categories, processes are not categorically
within the useful arts as there are processes that are not and never have been of the kind that one would consider to have a practical physical result.
With the other categories, the question is whether the claim is to a machine, article or composition. With processes, simply saying it is process is not enough. It further must be within the Useful Arts. We know however, that a process that falls within the MOT fairly announced in Corning v. Burden, Cochrane v. Deener and Gottschalk v. Benson are within the Useful Arts.
Central to the modern chaos in all
this is Giles Sutherland Rich. He was the one behind the trashing the function of a machine doctrine, the mental steps doctrine, the exclusion of business methods, and of the MOT. However, as these trashed doctrines reach Supreme Court, the Court seems to side with their own precedent and not with Rich.
Malcolm is epitome of responsible and accountable posters.
Pants, if you think the Congressional record on BMs can be construed as a happy embrace, think how you would be received by your father on returning home after wrecking his new BMW on a joyride? That is just how Congress feels about BMs.
“I don’t recall Ned ever saying any such thing.”
My Gud, yet another hill to run up.
LOLZ
“So, when I talk about…
…not SC precedent…
…the SC has yet to address…”
Hmmm.
In other words, Ned’s entire legal foundation – rocked to and fro by an unmerciless onslaught of honesty – is left to his pure conjecture and a minority view (Stevens) – a minority view that was a loser in back to back SC decisions.
Talk about putting all your eggs into one basket, and that being the wrong basket.
The problem you have with that basket Ned is that the issue was before the SC, and they ruled that business method patents must be analyzed just like any other method patent (yes, the majority position at Bilski 11).
If, as you would like to believe, if such an alternative universe theory like business method patents are outside of the useful arts governed by patent law, then, then the Supreme Court would not, could not, have ruled as the majority did in allowing even some business method patents to be patent eligible subject matter. To allow even some business method patents to be patent eligible subject matter, then they would have violated the Constitutional guideline of “useful arts” and they would have explicitly stated that business method patents violate the “useful arts” (as you so helplessly whimper).
They did not explicitly state so
Svcks to be you.
Ned, the count is at 9.
You are still laying in the middle of the squared circle, flat on your back, eyes closed and with a dazed and quite silly grin on your face. That’s quite some “victory” you are playing in your head – it is going to be quite a shock when you finally open your eyes and realize your game is over.
Ned states:
“the SC… held that CONGRESS did not categorically exclude any process.”
So the Supreme Court held that CONGRESS did not categorically exclude any process.
So the Supreme Court HELD that Congress did not categorically exclude any methods, which are a subset of the statutory category of process.
So the Supreme Court HELD that Congress did NOT categorically exclude any business methods, which are a subset of the subset methods, which are a subset of the statutory category of process.
So the Supreme Court HELD that business methods are NOT categorically excluded by Congress when Congress set the statutory categories of patent eligible subject matter.
Well, since everyone knows that if something is not categorically excluded, then it must be included as a category, because if the category itself is not included, then it would be categorically excluded.
So the Supreme Court HELD that business methods ARE included by Congress when Congress set the statutory categories of patent eligible subject matter.
Well, Ned, why didn’t you just say so to begin with?
Now then, with this understanding finally in place, we can visit the actual reason why the Bilski claims were ruled patent ineligible: they were abstract.
Funny that, I bet that all kinds of other types of method claims can be ruled abstract. Medical method claims can be ruled abstract. Pharmeceutical method claims can be ruled abstract. DNA sequencing method claims can be ruled abstract. Organics compound method claims can be ruled abstract. Chemical arts method claims can be ruled abstract. Mechanical arts method claims can be ruled abstract. Optical arts method claims can be ruled abstract.
Why we could just go on and on and on. There is no limit to the types of method claims that can be ruled abstract. There is no limit to the categories of method claims that can be ruled abstract.
There is a limit of how credible Ned is, as he continues seeking his agenda against business method claims. As Ned as shown, it is a limit he blows through with quite some regularity. A shame really that Mm doesn’t appear to ever recognize this. Much like Ned doesn’t appear to recognize the denials and non-answered questions pertaining to MM.
A mutually blind couple, hand in hand, creating their own world.
How touching.
Someone have a box of kleenex? (and a gallon of bleach?)
tag
Indeed, there is a display of profound ignorance going on.
But that display is not by simple questions. It is by Ned Heller.
At least, Ned, profound ignorance is one choice. The other is outright deception.
Either way, your “good” name bears the load. A pity then, that by using your own real name, no veracity or accuracy of post content attaches (especially on posts to mere blog pages, where the duties that normally attach to what an attorney says attach). A shame on that, wouldn’t you say?
“Listen, sockett, the SC has never held that all methods or process are within the UA”
Listen, Ned. Once again you veer off point and into the deep weeds.
You are the one wanting such a categorical exclusion – it is up to you to show the legal basis for this. Overcome Bilski 11. Stop trying to goosestep around the actual point. A minority position – especially Steven’s minority position in Bilski does not overcome the majority opinion. It cannot – thus your post here FAILS.
Show the basis or STFU.
“As normal, you erect a strawman ”
Actually, he just exposed a strawman.
Yours.
Where is the legal basis for dividing out one of the 101 statutory categories of patent eligible subject matter from the other statutory categories of patent eligible subject matter based on the consitutional phrase “Useful Arts” ? Who made the choice of why one, and not another ? On what grounds ?
MM is a sockpuppet – by definition.
You have now lumped your hero in with your greatest “villians.”
Do you really want to do that?
“In contrast, Congressional HOSTILITY to BMs was reaffirmed with the new special procedure to have them revoked, a procedure specially reserved to BMs and BMs only.”
One very fatal flaw in your logic:
You are expressly trying to do what Congress says expresly not to do.
Sec. 18(e) RULE OF CONSTRUCTION. — Nothing in this section shall be construed as amending or interpreting categories of patent-eligible subject matter set forth under section 101 of title 35, United States Code.
I know that this is the second time that you have expressed a portion of law – THIS PORTION – with the intent to deceive as to what this law means.
The first time may be allowed that you were simply mistaken. A second time means that you have been caught in a purposeful l_ie.
You seem to expressly do things that the law says not to do. Congress. the Supreme Court. You create and maintain your own personal definitions, your own personal law.
A second fatal flaw is that your false version of “repeal” violates a standard canon of statutory construction. Let’s take a look at two items from the CRS Report for Congress (Order Code 97-589), titled “Statutory Interpretation: General Principles and Recent Trends”:
1)The various canons of interpretation and presumptions as to substantive results are usually subordinated to interpretations that further a clearly expressed congressional purpose.
There is no clearly expressed congressional purpose to repeal as opposed to expand. On this point, you are clearly wrong. ALL commentary on the Section 273 change speaks to EXPANDING based on the change to First Inventor To FIle. There are no exceptions to this expressed intent. None.
2) A commonly invoked presumption is that Congress does not intend to change judge-made law.
Unless thre is a clear and unequivical sign otherwise, the judge-made law survives. In fact, the portion of the law that you left out (AGAIN), clearly indicates that Congress, in fact, did not intend to change the law on this important point. They could have quite easily added the words “Business Methods are not patent eligible subject matter.”
They did not.
In fact, had they done so, had they done as you suggest, then the entire section of Sec. 18(e) would be meaningless and would not have had to have been even present (yet another violation of statutory interpretation canons.
Is there any doubt as to why your postings are rejected? You live in a fantasy land of your own making. To reach your tortured viewpoint you must violate at least three canons of statutory interpretation and you have yet to supply ANY support for your view except your own wishful thinking.
FURTHER, if you care to dive deeper into that section 18, you will notice that it calls for a REVIEW. Further, this REVIEW is for a SUBSET of Business Method patents labeled COVERED and per (C), is a review ONLY against 102 and 103 – NOT 101.
Nowhere, except deep in your own imagination can this section be thought of as to overrule a Supreme Court decision on Business Method Patents as a category of eligible subject matter under 101.
Now, STOP L_IEING.
To Ned and simple questions,
After some thought I “NOW realize” that the Program I use in my Embroidery machine makes something tangible on the Shirt so the Program Disk is patentable… But what about the “Silk Screening Process?” You can scan a picture into the scanner, and silk screen what you scanned by just using the scanned Picture, which then dumps the image on the shirt. Isn’t that the same as printing the same saying on the Cup? Would the fact that you scanned the medium onto the Shirt make it different from embroidering the same image on a Shirt? Or is the Scanner like the Computer (both already invented) not allowed to be claimed to proceed in the process?
Socket, the problem with sockpuppets is that one cannot tell one from another. Therefor, one sockpuppet speaks for all sockpuppets. There is no other way.
Pants, what is very clear is that Congress was aware that 273 was used in Bilski to suggest Congressional endorsement. They repealed the old 273 and replaced it. The replacement does not mention BMs. In contrast, Congressional HOSTILITY to BMs was reaffirmed with the new special procedure to have them revoked, a procedure specially reserved to BMs and BMs only.
Do on even think that Congress did the opposite of what they did. They want to kill off any BM that is not technological — and technological essentially means the claim passes the MOT.
Listen, sockett, the SC has never held that all methods or process are within the UA. They held that
CONGRESS
did not categorically exclude any process.
So, when I talk about the
CONSTITUTION
do NOT divert the topic back to what Congress had to say or did not say.
Please.
The SC has yet to address the UA clause of the Constitution. The Stevens minority did. So what I say about the Constitution is based upon historical analysis,
not SC precedent.
Answered elsewhere.
But simply, not all processes are within the UA.
Not all processes are within the UA. Machines, articles and compositions are. Processes are not.
This is self-evident, evident from historical development, evident from all current case law. To even ask this question is to display a profound ignorance of the topic.
Nothing. As normal, you erect a strawman.
“that the claim at bar in the OP is a BMP, BMPs are patent eligible, so let’s move on to 102, etc.”
To the extent that someone thinks that 101 can be skipped – for anything – that person is incorrect.
To the extent that someone thinks that a BMP must be abstract and therefore cannot meet 101 – that person is incorrect.
Can we move on now?
“[Ned’s] 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.”
Classic MM denial. Just classic.
Ned, any comment on your hero’s recollection capability?
Ned,
Non-sequitur (review the Congressional Record as to why).
Bite again.
“The question…”
No. Stick to the point.
You are the one wanting such a categorical exclusion – it is up to you to show the legal basis for this. Overcome Bilski 11. Stop trying to goosestep around the actual point.
Show the basis or STFU.
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MM,
Your obsession with Gene is more than just a mere allusion to any facts. There is an abiding h_atred in every reference you make, and it is not limited to the “sockies” you also obsess about. I saw his reply to someone notifying him of your earlier unwarranted attack. He has no idea who you are. Clearly, this is something in you.
And given that you reacted so violently (and so incorrectly) to me, I am pretty sure that the one supports the other.
I generally don’t engage in lengthy debates as I find it more telling to ask a simple question and see the response.
Simple questions are far less susceptible to manipulation and obfuscation.
If a person has a difficult time answering a simple question, then chances are good that person is up to no good.
Further, your reference to my focusing on you as “trolling” is another obsesive reaction of yours. You seem to have a real issue with anyone questioning you, anyone at all. And the way that you put yourself up so tall on a pedastal, yet feel threatened so quickly is just not a healthy reaction.
Lastly, you made a very big deal about my immediately answering you (even ignoring the fact that you did not first answer my questions, which I asked first) and labeled my lack of an immediate response as a reprehensible and cowardly act, with disdain and insults. Yet, you still have not answered my questions. I see that you have been on the boards today. You also did not answer any of the other questions put to you (except to offer some flimsy and flippant remark). I do expect real answers to the questions I ask, and I am sure that real answers were expected of the other questions.
If you are too afraid to answer, it is OK to say so. If you do not know the answers, then it is OK to say that as well. But to not even answer the questions, after you made such a big deal about answering questions in such an immediate and forceful manner does not portray you as someone that should be paid any serious attention to (perhaps this is a common occurence for you, in which case, you might want to try some different tactics).
What happened to the class of patent eligible subject matter “processes” for which the M for Method in the shorthand BMP belongs to? Has 101 and 100 been rewritten?
What happened to the class of patent eligible subject matter “processes” for which the M for Method in the shorthand BMP belongs to? Has 101 and 100 been rewritten?
What happened to the class of patent eligible subject matter “processes” for which the M for Method in the shorthand BMP belongs to? Has 101 and 100 been rewritten?
““BMPs are not categorically patent ineligible.”
Which is what the Supreme Court actually held.”
Not to be a smarta_$$, but how is “not categorically ineligible” different from “as a category, eligible” picked from a long distant thread?
The two camps seem to be locked in a mindless speak-past-each other. Ned – here especially bottle is seeking reasonableness. Answers of essentially my definition or incoherent ramblings don’t reflect well on you. Or do you think it valid for you make things up however you see fit?
Ned, how do you move from this explicit “”BMPs are not categorically patent ineligible” somehow to the very opposite of that with “BMPs are categorically patent ineligible”?
Looking at how you refuse to be reasonable with your definition of BMP, I see how you end up where you end up, but your definition clearly cannot stand with the Supreme Court holding that you post immediately above at 12:02 PM.
Your definition must go. It cannot be reconciled with the holding you yourself post.
“Name one method within the UA that is not”
Ned: I do not understand what you mean. Does anyone else????