VS Tech v. Twitter: Patentable Subject Matter

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.

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.

 

 

461 thoughts on “VS Tech v. Twitter: Patentable Subject Matter

  1. 460

    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.

  2. 459

    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.

  3. 457

    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.

  4. 456

    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.

  5. 455

    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.

  6. 454

    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.

  7. 453

    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.

  8. 452

    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.

  9. 451

    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.

  10. 450

    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.

  11. 449

    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.

  12. 448

    "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.

  13. 447

    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!

  14. 446

    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.

  15. 445

    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.

  16. 444

    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.

  17. 443

    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.

  18. 442

    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.)

  19. 441

    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?

  20. 440

    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.

  21. 439

    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.

  22. 438

    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 ! ! !

  23. 437

    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.

  24. 436

    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.

  25. 435

    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.

  26. 434

    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

  27. 433

    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.

  28. 432

    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?

  29. 431

    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

  30. 430

    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

  31. 426

    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.

  32. 425

    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.

  33. 424

    Malcolm is epitome of responsible and accountable posters.”

    There is absolutely zero credibility in this statement.

    Zero.

  34. 423

    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.

  35. 422

    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.

  36. 421

    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.

  37. 420

    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!

  38. 416

    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.

  39. 415

    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.

  40. 414

    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!

  41. 413

    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.

  42. 412

    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.

  43. 411

    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.

  44. 409

    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.

  45. 407

    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.

  46. 406

    I don’t recall Ned ever saying any such thing.

    My Gud, yet another hill to run up.

    LOLZ

  47. 405

    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.

  48. 404

    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?)

  49. 402

    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?

  50. 401

    Listen, sockett, the SC has never held that all methods or process are within the UA< ?i>”

    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.

  51. 400

    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 ?

  52. 399

    MM is a sockpuppet – by definition.

    You have now lumped your hero in with your greatest “villians.”

    Do you really want to do that?

  53. 398

    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.

  54. 397

    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?

  55. 396

    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.

  56. 395

    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.
     
     

  57. 394

    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.
     
     

  58. 392

    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.
     
     

  59. 390

    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?

  60. 389

    [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?

  61. 387

    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.

  62. 386

    US7552121 – Autonomic lock escalation in an SQL environment

    Inputs: query
    Outputs: selection of a strategy

    US7395235 – Strategy independent optimization of multi objective functions
    Inputs: portfolio of investments
    Outputs: strategy independent optimization of multi-objective function

    US7343336 – Computerized system and method for optimizing after-tax proceeds
    Inputs: sets of investment strategies
    Outputs: optimal strategy for maximizing after-tax proceeds

    And finally, one for Einstein:
    US5987468 – Structure and method for efficient parallel high-dimensional similarity join
    Inputs: .epsilon.-k-d-B trees
    Outputs: optimized leaf size

  63. 385

    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).

  64. 384

    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?

  65. 383

    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?

  66. 382

    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?

  67. 381

    “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.

  68. 380

    “Name one method within the UA that is not”

    Ned: I do not understand what you mean. Does anyone else????

  69. 379

    “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, 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.

  70. 378

    ” but Congress has not. Congress was urged to and did not. ”

    Congress was urged to stop the corruption in our government by implementing campaign finance reform too. Did that happen? No. Not much good happens in our congress.

  71. 375

    NED: But not all method fall within the useful arts because not all methods relate to methods of making and using machines, articles of manufacture and compositions of matter.

    That could be true, for say, 1800. Fortunately the Constitution says promote the “progress” of the useful arts. See my lecture at Oct 28, 2011 at 05:53 PM.

  72. 373

    Ned there is nothing to fear if you understand what Useful Arts truly means in the context of patents and our Constitution. You see, here in the USA, commerce is useful, and is the core foundation for the application of every invention ever issued a patent. I would go so far as to say commerce is the “Useful Arts!” Indeed this is what sets the Useful Arts apart from the liberal arts and social activity. (Even if you go back to the 1600-1700 hundreds all those first patents were for inventions being applied to commerce.)

    For example: “Method of making a more easy and perfect division in stocking frame-work manufactures,” No. 1417 to John Webb (1784); “Making and preparing potashes and pearl-ashes of materials not before used for the purpose,” No. 1223 to Richard Shannon (1779); “Making salt from sea-water or brine, by steam,” No. 1006 to Daniel Scott (1772); “Milling raw hides and skins so as to be equally good for leather as if tanned,” No. 893 to George Merchant (1768); “Making salt, and removing the corrosive nature of the same, by a separate preparation of the brine,” No. 416 to George Campbell (1717); and “Making good and merchantable tough iron with one-fifth of the expense of charcoal as now used,” No. 113 to Sir Phillibert Vernatt (1637).

    Granted all these patents were for iron age processes. But that just goes to show the start of the Art of commerce as it had progressed circa 18h century. Keeping with the Constitutional mandate to promote the “Useful Arts” there are many new innovations that can and will be patented for commerce in the 21st century so long as we do “promote” and not “regress” the progress of the “Useful Arts.

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

    But when a concept is applied to industry, or a specific marketplace, A.K.A Commerce, that is the realm of patents. The case law that follows both the majority opinions of Bilski and Diehr serve as excellent guidepost for those seeking to find their way.

    ( Diehr) : It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.

    (Research Corp): Indeed, this court notes that inven- tions with specific applications or improvements to technologies in the marketplace are not likely to be so abstract that they override the statutory language and framework of the Patent Act.

    (Ultramercial): an application of an abstract idea may well be deserving of patent protection. See 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”)

    All applications of processes to business/commerce. Each subject to the same conditions and requirements of U.S.C Title 35.

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

  73. 372

    Interesting observation, that last. Step f, and especially when recited more specifically in claim 2, would I think be enough to render the claim eligible at the EPO.

    But then, as many have noted, all sorts of hopeless subject matter gets past the almost non-existent 101 filter at the EPO. Fortunately for society though, the EPO’s 102, 103 and 112 filters are very efficient and effective. Take KSR for example. The EPO file wrapper for the app in that case ends with issue of the FAOM.

  74. 371

    Well IBP, the list has associates people of like charateristics and provides some information about them.  This is valuable.  What I don't know is whether the utility portion of "substantial utility" must be a utility within the useful arts.  That is required, that a list of people may have no different credibility than any printed matter.  But printed matter might be useful.

  75. 370

    What I want?  

    The person who bootstraps is not me.  Anything under the sun thought by man is what you consider patent eligible.  Every decision to the contrary at whatever level is wrong according to you.  You do not have any bright lines, any fuzzy lines or any lines at all between the eligible and the ineligible.   In fact, talking to you on this topic is a complete waste time.

  76. 369

    Ned, you asked a very specific question.

    The precise answer will require very specific facts.

    Please Ned, you’re the one who asked the initial question, so it’s incumbent on you to provide the information upon which a meaningful answer can be based.

    Here’s the deal: I’m aware of the “well-established utility” concept articulated in MPEP 2107…

    HOWEVER, satisfaction of that concept requires 2 things:

    1) immediate appreciation by a PHOSITA, and

    2) THAT THAT UTILITY BE SPECIFIC, SUBSTANTIAL, AND CREDIBLE.

    That should be evident to all of us, but MPEP 2107 provides an illustration that even the PTO understands that the utility must always satisfy the requirements of specificity, substantiality, and credibility.

    So, if I use the commonly understood “well established utility” of a list of people, and I apply my hobby-horse interpretation of “substantial utility”, I would have to say that it fails the substantiality requirement, and would therefore not be patent-eligible under 101.

    Unless you would like to provide a specific statement of utility…

  77. 366

    Agreed.  But the question what is patentable subject matter.  Patentable subject matter consists of machines, articles of manufacture, compositions of matter and methods of making and using them.

  78. 365

    Not all methods fall within the useful arts because not all methods relate to methods of making and using machines, articles of manufacture and compositions of matter.  The question for patent eligibility is whether a BMP is a method of making or using a machine, article of manufacture or composition of matter.

  79. 364

    OS BMPs are methods.  But not all method fall within the useful arts because not all methods relate to methods of making and using machines, articles of manufacture and compositions of matter.

  80. 363

    From BMPs are patent eligible to BMP are Useful Arts.  When will it end?  Over Sight, the extent you will go to justify your position is beyond hysterical.

    What are Useful Arts?  Let me propose a definition that is rather self evident from the first statute passed in 1790.

    Useful arts means machines, articles of manufacture, compositions of matter and methods of making and using them.

    Over Sight Committee has replied to your comment:

    Business methods are the "Useful Arts"
    Useful Arts is expressed in Article. I. Section 8 of the Constitution.
    Useful Arts means the same as processes.
    Processes is expressed in Title 35 Sec. 101, subject to the conditions and requirements of that titled.
    ::Schooled::

  81. 362

    A small step – excising n_aked and unabashed character assinations.

    Removing one Game at a time.

  82. 361

    What you agree with has been found to be irrelevant.

    Here too, the useful arts simply do not mean what you want them to mean and you simply are nothte one to decide.

    Conform to accepted legal principles if you wish to engage in a reasonable manner.

  83. 360

    Ned,

    Yes, your answer previously provided has been ruled irrelevant.

    Unless you enjoy being in your own little dream world, you cannot make up definitions that violate wha the nine justices told you in Bilski.

    Please take that reasonable first step.

  84. 351

    sockie: Please enlighten us as to why you wish to violate the majority opinion of the Supreme Court in Bilski?

    I’m not “violating” anything, sockie. The majority of Supreme Court Justices were crystal clear about the fact that merely categorizing a claimed method a “business method” did not render the claim patent eligible “as a matter of law.”

    Again, sockie, it was you who wrote: “all processes or methods for doing ANY CATEGORY OF PROCESS are patent eligible, as a matter of law.”

    Your statement is plainly false because, among other reasons, purely mental processes (including purely mental “business method” processes) are not patent eligible, as a matter of law.

    As nuances go, this isn’t a particularly difficult one to grasp. But you seem to be struggling with it. That’s unfortunate because it’s an important point.

    As a practical matter, you should also be aware that “business methods” which resemble Bilski’s claimed method are not going to be treated “exactly as any other category of process patents”. For instance, they aren’t going to be treated like new processes for sequencing DNA or new methods of treating humans by administering certain pharmaceutical compounds. Rather, “business methods” that resemble Bilski’s claims are going to be treated like Bilski’s claims. Do you remember how that worked out? Maybe you should inform your clients of that fact rather than making worthless, inane comments that suggest such claims stand on equal footing with claims in other fields.

  85. 350

    under the theory that if people hear it enough times, it begins to be perceived as truth

    Most people are not so comfortable being so open with their games.

  86. 349

    Under your definition, literally every composition of matter that can be used in some way is a “machine.” “This block of iron consists of individual iron atoms. I can use it as a paperweight. Therefore it’s a machine!”

  87. 348

    As a generally accepted category: Bilski 11.

    Now with this settled, each BMP on its own merits must pass the hurdle.

    Stop the l_ies.

  88. 347

    Interesting question. But it does illustrate that the question is NOT whether a BMP is a method. Now, come on, sockie. What then is the proper question?

    Wrong Ned, the interesting question that you duck precisely illustrates that the question is whether a BMP, as a method not to be categorically denied patent eligibility, can be treated any differently than any other generally patent eligible category of methods.

    You are the one wanting such a categorical exclusion – it is up to you to show the legal basis for this (and here is a hint – Bilski 11 proves you wrong).

    Stop the l_ies.

  89. 345

    And you obviously ignored the cite I gave where linguists — the people who have actually studied our language far more extensively than either of us — disagree with you.

    Sorry, that was unclear. They disagree with you on the claim that “which” is ungrammatical to use with nonrestrictive clauses.

  90. 344

    You mean, old enough that we don’t have the name of the guy who made them up?

    No. We have witnessed language formation (see any Creole language), and grammatical rules do not arise from conscious decisions. There are in fact people who study this stuff, and they write papers and books about it; you should look into it, it’s all quite interesting.

    Even spelling wasn’t standardized in Shakespeare’s day, but I don’t see you complaining about that.

    Orthography is not grammar; the mechanisms that shape grammar simply don’t operate upon spelling.

  91. 343

    Davis, you obviously don’t understand grammar sufficiently to appreciate that distinguishing restrictive from nonrestrictive clauses is a linguistic imperative.

    And you obviously ignored the cite I gave where linguists — the people who have actually studied our language far more extensively than either of us — disagree with you. I’ve studied just enough linguistics myself to be fed up with people who insist their understanding of what the “rules” are is determinative.

    Also, you’re clearly misinterpreting me if you think I’m claiming that there’s no difference between restrictive and non-restrictive clauses. What’s incorrect is the claim that “which” is ungrammatical when used in a non-restrictive clause. Or do you think “That which does not kill us makes us stronger” is ungrammatical?

  92. 342

    OS, my how we conflate and dodge. No one has ever contended that BMPs were not methods.

    WRONG

    OS, now Ned Heller will conflate and dodge by saying,” No one has ever contended that BMPs were not methods.”

    ::FIXED::

  93. 341

    An improvement to an old, ineligible BMP does not make a new BMP eligible. That is “typical” complete “Red Herring” nonsense.

    ::FIXED::

  94. 340

    Is my memory going funny again, or did Ned comment on Giles Rich, with a response by je?

    Both Seem to have been removed. Are criticisms of past CAFC judges verbotten?

  95. 339

    Business methods are the “Useful Arts”

    Useful Arts is expressed in Article. I. Section 8 of the Constitution.

    Useful Arts means the same as processes.

    Processes is expressed in Title 35 Sec. 101, subject to the conditions and requirements of that titled.

    ::Schooled::

  96. 338

    Hear this, you foolish and senseless people, who have eyes but do not see, who have ears but do not hear:

    There is no categorical exclusion of Business Method Patents.

    This is the law.

    Period. End of Story. Full Stop.

    This means that each Business Method Patent must face the 101 test on its own merits.

    Anything else said, any other theory is a bold faced l_ie.

  97. 337

    Bad example IANAE.

    Perpetual machines have been explicitly categorized as different. BMPs have been explicitly categorized as NOT to be treated differently.

    EPIC FAIL

    Back to the Tower with you.

  98. 336

    What right – by case law or legislative law – do you have for tring to treat one type of methods differently than any other type of methods?

    Business methods are methods. That’s nice. Perpetual motion machines are machines. What right do we have for treating them differently as a sub-category of machines?

    Oh, right. It’s because the defining characteristic of that sub-category is inherently problematic when it comes to 101 eligibility.

    Got any less simple questions?

  99. 335

    Ned,

    Perhaps because this question is safely within a known zone, and thus has no bearing on the current discussion which is trying to find an edge that both sides can agree to.

  100. 334

    Ned,

    Einstein’s post may have gone over your head.

    The point I believe he was trying to make is that you have retreated to a “time space” frame of reference and the real physical universe has not been figured out. There may be 8 different dimensions in real time space. There may be only 1.

    No one knows for sure. It is difficult, then to boldly claim “time space” as a requirement for “real.”

    Getting back to real transformations though – I am not clear on your position to Funny Thing About Circles’ post, or the other posts on this thread that go into more detail on the real data transformations of applied math, wherein the application of applied mathis not on physical objects.

    Are you holding that this type of applied math is not applied math?

  101. 333

    The Useful Arts retreat.

    This avenue has also been shut down. Cites previously presented.

    This is a petty stalling tactic Ned. You are still lieing on the canvas. The count is up to 7. OPen your eyes, stand up and box in a different manner.

  102. 332

    that does not pass the MOT

    You have been shown that all nine justices in Bilski reject the MOT as a requirement. If the MOT is not a requirement, passing the MOT cannot be a requirement. (Do we really need to revisit your non-answering of the requests to show MOT as a reuirement?)

    Thus, you cannot have this as part of your definition.

    Your answer of “No” is rejected as non-compliant and without reasonable basis.

    Please take that first step in a showing of good faith.

  103. 331

    Although, Ned, I will say that you encouraged me to read a few cases from the 1800’s that were very interesting. So, thanks for that.

  104. 330

    What right – by case law or legislative law – do you have for tring to treat one type of methods differently than any other type of methods?

    Each individual method (NOT as a category) approaches and survives (or not) the 101 filter. Each individual method (NOT as a category) approaches and survives (or not) the remaining 102/103/112 filters.

    Where do you get off creating a categorical rejection of BMPs at the 101 level?

  105. 329

    I’m not sure what your point is Ned, except maybe to make me try to find the text of the actual decision and cite chapter and verse. You issued a dare and I accepted it.

  106. 328

    MM,

    A completely vapid and useless comback.

    You offer no support why such a statement – admittedly not of Ned or yours (why would you be asked to affirmatively say something so clear and game free if you had alreay said it?) is as you claim vapid, inane, meaningless and confused.

    Do you have a valid, cogent, legal argument for NOT trating BMPs just like you would any other category of MPs?

    Please enlighten us as to why you wish to violate the majority opinion of the Supreme Court in Bilski?

    We await you enlightened, game free, expletive free, substance response. (But you will pardon me if I do other things waiting for your mythical creation).

  107. 326

    Ned,

    Stop the falsehoods. We both know that there is a world of difference between expand and repeal.

    If you insist on using a false representation, you need to show the express intent involved in “repeal” and its subsequent indication to annul any case law depending on such a repealed section of law.

    You won’t because you can’t.

  108. 324

    OS, the issue is not whether BMPs were method claims.  It was whether, really, BMP were within the UA.

    Unless one addresses THAT issue, of course congress did not categorically exclude BMP methods.  But it is not what CONGRESS did or did not do that is the real question.  It is whether BMPs are within the Useful Arts.

  109. 323

    We can agree that your definition – that the bilski MP is the only type of BMP is completely and utterly false.

    Are you willing to take that first step, Ned? Are you?

    This means that you must renounce your anti-logical one sample leads to a categorically complete negation of patent eligible subject matter. Please do so in a clear affirmative statement (and then refrain from backsliding into such an unworthy game).

    We can take the next step of debunking your fallacious logic if you can show some good faith effort of setting aside your games.

  110. 320

    sockie, it was you who made the following vapid, inane, meaningless and confused statement:

    treat BMP’s just like you would treat any other category of method patents

    Not me. Not Ned.

    You.

  111. 319

    You Ned, have you ever thought the big picture here is that yes the SCOTUS could exclude all software and business methods, but Congress has not. Congress was urged to and did not. The SCOTUS also in Diehr said that they could exclude these types of inventions under old case law, but that case law in patent law was meant to adapt to new technology. Does that make all your swirling statements from the 1800’s seem kind of silly? Plus don’t you find Stevens concurring opinion in Bilski a bit odd in that it goes back into the 1700’s? It also dismisses business method patents that were granted back in the time when he says they weren’t allowed a bit too easily.

    Let’s fact it—bottom line: a policy issue and guess which branch of the government should be deciding that issue?

  112. 317

    Les, you do know that Rader was quote largely from the portion of the opinion that Scalia did not join and that Congress has repealed the old Section 273.

  113. 316

    Your post is a non-answer.

    You cannot provide the clear and game-free answer, can you? (hint – it’s not a quote to any sockie that is desired – what is desired is the content that simply does not depend on who is saying it).

    Clean clear and siimple – the words have been given to you. Cut and past. Or simply affirm. No need to add caveats or intriduce unnecessary double negatives.

    Affirm or Deny, but do not prevaricate. Do not add, spindle or mutilate.

    You cling to the anti-BMP agenda, afraid to let go.

  114. 315

    I thought I had.  Compiling social registers, Who's Who, lists of attorneys, doctors, babysitter, or whatever.

    Telephone books.

    The lists have utility.  Like databases.

  115. 313

    Night, all I can ask is why you refuse to understand that I agree with you.  Information transformation that reduces entropy in time space are patentable.  You have been say this.  So have I.

  116. 312

    Weird how people interpret Bilski.  Stevens was right that the majority decision was a simple declaration, without reason.  Into that declaration, anybody, it seems can read anything as the "real" reason for the holding.

  117. 309

    Ah, real vs. imaginary numbers.  

    No, we are talking about subject matter that exists in this universe.  Numbers are all imaginary.  Yet they can represent things that exist.  That is what we are talking about.

  118. 308

    The problem with you whole line of argument, sockie, is that it operates on assumptions about what a BMP is.  Since you have never agreed with any definition, your meaning of BMP changes to fit your argument.

    I have said before, continuing this discussion is fruitless unless and until we agree on a defintion.  Since you will not, we have to stop.

  119. 307

    Interesting question.  But it does illustrate that the question is NOT whether a BMP is a method.  

    Now, come on, sockie.  What then is the proper question?

  120. 305

    All “elemental steps” of a claimed process are limitations of the scope of that claim.

    This place has become a nuthouse, with most posters doing nothing other than incorrectly articulating well-understood concepts, and attacking other posters, and responding to said attacks.

    Let’s stick to substance, and avoid the ill-considered attacks that demand time-wasting responses, and the obviously incorrect statements of law and fact–unless you QUALIFY your statements as known to be wrong in the first place, and use them for argumentative or illustrative purposes.

    Surely we all know, Babble, that claim steps or elements are limitations on the scope of a claim.

    Just because you have stated your same ill-considered opinion to the contrary on a previous occasion doesn’t make it any less meaningless the second time around.

    It doesn’t matter what you choose to call it–you’re picking a fight where none exists, manufacturing a meaningless conflict.

    Creating a distinction without a difference.

    Claim steps, or claim elements, or claim features are all limitations on the scope of a claim.

    Wow, are Pedantic Pete and Babbble Boy the same poster?

    I need to become more efficient on knowing which pseudonyms to ignore.

  121. 304

    The problem with sock puppets is that we cannot quote them.  

    In this thread, one of the sockies did say, that the claim at bar in the OP is a BMP, BMPs are patent eligible, so let's move on to 102, etc.

    Now, when one says this, the meaning is unambiguous.

    When one says claims to new machines are patent eligible, we understand that we move on to 102, etc.

    When one says claims to new articles of manufacture are patent eligible, we understand that we move on to 102, etc.

    When one says claims to new compositions of matter are patent eligible, we
    understand that we move on to 102, etc.

    When one say that BMPs are patent eligible, why are we to understand the term in any sense differently?

    You may lecture all you want on the nuances you intend, but if you actually intend the nuances you would say,

    "BMPs are not categorically patent ineligible." 

    Which is what the Supreme Court actually held.

  122. 303

    OK Pete, to satisfy your expressed need for pedantry:

    My first 3 paragraphs stated:

    “Let’s take a look at the actual claim.

    Let’s do this without considering the spec, and by construing the claim in favor of resolving any ambiguity in favor of patentability.

    Why not look at the spec? As it will turn out, I don’t think it will be required.”

    Clearly, “Let’s [take a look at the actual claim] without considering the spec..” necessarily implies that “the spec” refers to “those parts of the spec other than the claim”.

    That use of “the spec” should be contrasted to the use of “the spec” in my subsequent post, where I stated that “The claim is a part of the spec.”, which necessarily implies that “the spec” refers to the entire spec, including the claim.

    So I used “the spec” to mean 2 different things in 2 different posts, a fact that was clear to anybody actually interested in the substance of the posts. However, to somebody who is merely argumentative like yourself, the posts provide material that is sufficiently nuanced that it will almost certainly not be understood correctly.

    You evidenced that lack of understanding when you stated incorrectly that “At 1:53 PM you want to read the claims without the spec, and now in a defense against your poorly written post, you want to claw that back.”

    What I actually said at 1:53 was that I would look at the claim without considering those parts of the spec other than the claim. This is absolutely consistent with everything I said at 2:17, as reinforced by my use of the term “remainder of the spec” thrice in that post.

    Nice try, Pedantic.

    In your own words of 2:30, “Just an idea: Think more. Post when ready.”

    But I was off the mark when I said that you supported the claim.

    The truth is, given the total inadequacy of your analysis of my own posts, I’m completely uninterested in what you think of the claim at issue.

  123. 302

    Les I’m supposing that the profile is not accurate, no longer up to date, or simply not laudatory enough. I’m supposing the profilee doesn’t just read it but also writes to the editor asking for an edit, and the editor then incorporates the edited version in the next edition of his Martindale Hubble (or whatever).

    By my reckoning, when you organise the claim in EPO “characterized in that” relative to old (say) Martindale Hubble, all you have for your characterizing portion is the single word “virtual”.

    I like that thought. Seems to like a somewhat insubstantial basis for recognising patentability.

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