In re Conte (Fed. Cir. 2011)
Patent Attorney Francis Conte's patent application is directed to a fly-swatter in the shape of a pistol. When the trigger is pulled, an elastic lash provides a deadly whip.
The PTO rejected Conte's invention as obvious. On appeal, the Federal Circuit affirmed – holding the patent invalid in light of U.S. Patent No. 1,779,507 ("White") and U.S. Patent No. 2,642,057 ("Watkins"). These two references clearly taught all of the structural elements of the claims, and the court held that "it would have been obvious to one of ordinary skill in the art to combine the features of White and Watkins and arrive at the invention claimed in the '288 application."
All well and good, except for the limitations not discussed by the court. The White and Watkins references were both directed to toy guns. White shot rubber bands. Watkins used a rubber band to shoot a pellet or pea. Neither was used to kill insects with a whip. On the other hand, Conte's claimed invention is direted to an "insect swatter" with a distal end "for being aimed at an insect" and a lash for "whipping … against said insect." Although the Federal Circuit did not address the insect limitations, the government brief noted that the cited prior art is all inherently "capable of being used to shoot insects" and that the claims only require that capability. The government's interepretation here is the more traditional interpretation of functional limitations. However, that interpretation received some push-back in the Federal Circuit's recent Typhoon Touch decision.
Mr. Conte lost a similar Federal Circuit appeal in a predecessor case but was able to narrow his claims sufficiently to receive a patent.
What strawman?
Ned,
Don’t look now, but that was your strawman that was knocked down.
But thanks for playing.
Anonymous Encryption Geek:"You obviously do not understand."No Ned, it is obvious you do not understand.Encryption can be done between machines or within a machine.Please stop using failed arguments. Please stop speaking on topics that you do not understand. Please stop telling others they don't understand when it is clear that you do not understand."
I have never said anything otherwise. This another strawman argument recasting what I said into something different, a strawman, and then knocking that strawman down.
Why don't you pay attention to the point I actually made rather than discussing something which is I did not say. It makes no difference where encryption takes place, only that the encryption operate a data input in provide a data output from the machine. The problem with a programmed machine claim, or a method claim that does not describe the source of the data or the use of the data, is exactly this. It does not describe the source of the data or it's use and therefore has exactly the problem of the claims in Benson.
"When called for."
Needs A Lesson In Understanding When Not To Look Foolish:"is automatically executed because it is part of the machine"This is an artifical distinction – "automatic execution" is introduced only because you want firmware included, but the distinction has no real basis in fact or law. Is the radio not a component of a car because it is not automatically executed when you turn your car on? How about the windshield wipers? How about the trunk unlatch mechanism? Your weasel efforts in your last paragraph betray your trickery, as you want both automatic execution and execution when called for, but those two things simply are not the same things."
I see you miss the additional language I used in my own post: "when called for."
In other words, you once again raise a strawman and knock it down.
Ned Needs A Lesson In Shilling :I have noticed that you find it hard to have a conversation with anyone that disagrees with you.Your comments on compuer operation and encryption show a fundamental misunderstanding of the art.From reading the various comments, I have come to the conclusion that this "misunderstanding" is deliberate and you are a shill.Henceforth, posts by Ned Heller will be accorded their due weight, which is nothing. "
Ridiculous.
“You obviously do not understand.”
No Ned, it is obvious you do not understand.
Encryption can be done between machines or within a machine.
Please stop using failed arguments. Please stop speaking on topics that you do not understand. Please stop telling others they don’t understand when it is clear that you do not understand.
Does a windshield wiper magically become a component of the car only when it is turned on?
Your answer is yet another sign that you see the futility in your premise of “must be automicatically executed” and you are trying to lay down a weasel retreat.
Those of us that actually do know the art can easily see through your charades Ned.
This comes down to the fact that you have no real rebuttal to the legal logic of “Ultamercial.” Your only response to that case is character assassination.
“is automatically executed because it is part of the machine”
This is an artifical distinction – “automatic execution” is introduced only because you want firmware included, but the distinction has no real basis in fact or law. Is the radio not a component of a car because it is not automatically executed when you turn your car on? How about the windshield wipers? How about the trunk unlatch mechanism? Your weasel efforts in your last paragraph betray your trickery, as you want both automatic execution and execution when called for, but those two things simply are not the same things.
This is a sure sign that you are starting to see where you are losing the argument. I will just say this: your now recognizing that you have slid down the slippery slope does not mean that the slippery slope wasn’t there previously, and that you now can just imagine the slippery slope is gone. You have been in the hole of “hardware=firmware=software” since you agreed in principle without understanding the full ramifications of what you agreed to.
Those who are knowledgable in the art immediately recognized the slide you stepped on and immediately knew that any efforts from you to distinguish would be futile. It’s like you saying “I’m not sliding” as you slide down the hill. The truth of the matter cannot be overcome by what you say, and your denial only makes you look foolish.
You have once again gone to the absurdity level in trying to protect what you shill.
“I don’t understand why there’s such violent disagreement here because you go out of your way to say the same thing back to me in different words.”
The violent disagreement comes from you not understanding what you are saying and from not understanding the basics of the art, while vainly protesting that others do not understand.
I have noticed that you find it hard to have a conversation with anyone that disagrees with you.
Your comments on compuer operation and encryption show a fundamental misunderstanding of the art.
From reading the various comments, I have come to the conclusion that this “misunderstanding” is deliberate and you are a shill.
Henceforth, posts by Ned Heller will be accorded their due weight, which is nothing. When you shill, you need to be less obvious about it in order to actually get people to believe what you are trying to shill. This method of yours of “I’m right and everyone else is wrong” won’t convince anyone.
Building, let's agree on this: firmware which modifies the operation of the machine is quite patentable in my opinion.
Let's disagree on this: software which is executed on a machine but which does not modify its operation but merely calculates a number from a number, where the number's source is in the computer itself, and the result is discarded as in the Benson claims, does not modify the operation of the machine. It simply waste time and energy in is totally useless.
Now you rejoin: but the Benson claims were useful in the broader context, were that broader context would be any program they needed to convert BCD to binary. This is true. But the claims in Benson were not tied to any use. They did not receive from an external source any signal or data, and did not transmit its results to an external apparatus for receiving the output. The claim merely called for the execution of the algorithm, with the results not retained at all.
You say you understand how computers operate, but you obviuosly do not. I am finding it very hard to have a conversation with you on computers because you do not understand the basics.
"
What is critical here — and STILL ignored by you — is that the typical claims in question include the phrase "configured to," which IS KNOWN in the art to mean that the machine is changed to include the program AS A COMPONENT – and just as any other HARDWARE or FIRMWARE component, a SOFTWARE component carries the same strength of patentability."
You cannot claim what you do not disclose.
If software is not actually part of the machine, it cannot be considered a component of a machine. If I hand you a machine and it allegedly has software as a component installed on that machine, that software had better be there and be operational.
However, if software is in fact present in is automatically executed because it is part of the machine, a component as you would say, then I would agree that you have defined at least an improved machine, which is a "new" machine within the meaning of section 101.
Missing from most pure software patents, i.e. patents that simply operate on numbers such as a tax program, is any requirement that the machine automatically load and execute software. As such, the software it is not part of the machine, is not a component of the machine, and does not help to find a new machine.
Take the calculator as an example. If the calculator is permanently programmed to take an input, apply certain mathematics, and display an output, it makes no difference whether the mathematics is hardware or software. In contrast, if one manually inputs a sequence of steps by pushing mathematical operations onto a stack, for example, one is programming the calculator, but the program simply is not part of the machine. Rather, the user is using the machine for calculation purposes. There is a difference.
Circling back, one cannot claim that which one does not disclose. If the software is not in fact part of the machine, a component of the machine, then a claim cannot change that fact. Any claim that requires the software to be a component of a machine where the disclosure itself does not require that the software be a component of the machine is not in fact supported by the specification.
When I say I agree in principle that a programmed machine is patentable as a new machine if the program is physically present, permanently, and is automatically loaded and executed (when called for), I don't understand why there's such violent disagreement here because you go out of your way to say the same thing back to me in different words.
“How then can you say that that computer is an improved machine?”
Easily.
“If the machine has a program that operates internally and has no inputs and no outputs, it doesn’t change how the computer operates with respect to the external world.”
That is an assumption you have yet to prove. For example, internal speed and bit-error control can operate internally with no inputs and no outputs (to your external world), yet to anyone with any knowledge in the art, CLEARLY having such is an improved machine.
Oh I do understand how computers operate, it is you that is blind to the FACT that software is equivalent to firmware is equivalent to hardware. You keep on forgetting this FACT.
Further, it is evident that it is you that does not undertand how patent law operates.
A machine can operate internally and generate no outputs and still be a machine, and thus be eligible for patenting.
Your blindness comes from your agenda to add some extra requirements to something that you do not want to be eligible for patenting, without recourse to facts or law to support your pure-policy objective.
At the moment it is programmed.
Sent from iPhone
This post illustrates that you do not understand how computers operate at all. I do not have the patience to explain it to you at this time. a program can operate internally and generate no outputs. The problem with a programmed computer per se is that there is no requirement that it take an input, do anything with that input and then produce an output.
Sent from iPhone
But doing something new or different is critically important to whether the machine is improved. If a Machine doesn't do anything differently than before it is not an improved machine. You said so yourself.
If the machine has a program that operates internally and has no inputs and no outputs, it doesn't change how the computer operates with respect to the external world. How then can you say that that computer is an improved machine?
Sent from iPhone
So Ned, you ARE acquiescing that the programmed machine IS a different machine.
We will address the “improvement” in a second step.
A good first baby step for you!
“They do not change the machine”
Ned, your definition of “program” is in error and is NOT in accord to what is understood in the art.
Previous teachings from what is understood in the art were given to you in the debate thread on the equivalency between firmware and software.
You chose not to engage that conversation (I would say you must have been busy, but we both know that is not true, as you posted all around that point on that thread).
It is well known that when someone makes a point you cannot refute, you ignore that point and pretend nothing was said.
This tendency of yours to ignore only makes you look ignorant.
What is critical here — and STILL ignored by you — is that the typical claims in question include the phrase “configured to,” which IS KNOWN in the art to mean that the machine is changed to include the program AS A COMPONENT – and just as any other HARDWARE or FIRMWARE component, a SOFTWARE component carries the same strength of patentability.
Please understand that this indeed is the law, no matter how much you dislike or disagree with it, your ignoring it only makes you look, well, you know.
You obviously do not understand. The encryption was of an input signal to an output signal. It was not purely within the machine itself.
Sent from iPhone
You're right. I was probably responding to a different post.
Regarding "improvement." The statute authorizes patents on improved machines. But is a different machine that shows no improvement, an improved machine?
Sent from iPhone
A program is a series of steps. The steps use the machine to execute. They do not change the machine. The machine is a whole may operate with respect to the third the external world differently. But that is not what is being claimed.
What is critical here is that the program steps do not modify any external physical step.
Sent from iPhone
We do not disagree. The algorithm itself had utility. The problem was that the claim itself did nothing with the algorithm. It did not claim any use for the algorithm whatsoever. It didn't even claim the use of the algorithm in a computer such that it operated on instructions provided by a program for example. There was no use claimed.
Sent from iPhone
Ned,
You were not reading carefully enough.
Note that the “doing something” you parsed was part of the phrase “to do something.” Note the actual verb of my reply was “having.”
The gist of my sentence, then, was not in the direction you want and I am not reinforcing your argument. The gist of my sentence was to refute your reliance on “improved.”
It appears that you are eager to conflate and twist in order to reach your point.
Just like so many of the bloggers here state.
Have fun with the thread, if you cannot play nice, you play alone.
“numbers in numbers out. Numbers. That is all.”
This argument has already failed – see the conversation about the patentability of encryption techniques.
Please stop using failed arguments.
“Then you would handle”
Huh? That’s a non-sequitur to the “MORE useful” is not comment.
The one has nothing to do with the other.
“If, Why? Read the SG brief. Abstract steps are to be ignored for 102 purposes.”
One – A brief does not law make.
Two – abstract? such cannot be abstract as it changes the machine. You are assuming a point you need to prove in answering my “Why?,” so I will repeat and hope you actually have an answer this time:
Why? The program is what alters the structure and makes the machine a new and different machine. CLEARLY, the program is functionally related, and CLEARLY, there is no legal reason to ignore the program.
“Numbers that are discarded because they were not used.”
If so, both you and SCOTUS lack common sense.
You are saying that the inventors developed this algorithm to do nothing? That there was no purpose behind this algorithm? Are you saying the inventors were simply showing off their programming prowess to create an algorithm that had no purpose (i.e., use)? As a matter of common sense, the BCD algorithm was created because it had utility. But you don’t have to take my word for it, you can just check out the first link I provided to confirm it.
There is difference between having “no utility” and not reciting a specific utility. This gets back to the whole “preemption” thing that I really don’t care about. Patented claims, by definition, preempt the use of what is being claimed. Regardless, the BCD algorithm had utility, and I’m sure its utility was described in the specification – however, I’ve never seen the specification, as I would like to confirm that.
“The claim ended with a converted number.”
I’ve told you this at least once before, there is a difference between the 1st and 2nd paragraphs of 35 USC 112. Claims need only distinguish the claimed invention … enablement is for the specification, and there is no requirement that a specific utility be spelled out within the claims (i.e., see the second link I provided).
Let's now we are into reading comprehension. We see the same words and come away from the reading with a completely different understanding of what was just said.
I think the majority view is consistent with my view. The Benson claims were not limited to any particular use. This means they were not actually used for anything in particular. This means the result of the calculation was not actually used at all. It just stood there: a number.
The claim ended with a converted number. The claim did not require that the converted number be used for anything. It was not stored. It was not retained. It was not passed on to a next process. It was not used period. If something is not used for anything, what does that mean?
It was effectively discarded.
Bilski described Benson as numbers in numbers out. Numbers. That is all. Numbers that are discarded because they were not used.
If, Why? Read the SG brief. Abstract steps are to be ignored for 102 purposes.
Turning to the programmed computer, it is what the computer actually does physically that is important for novelty purposes, at least according to the government brief. Everything else can be ignored.
Thus, the programmed machine might be a machine for 101 purposes, but it is not new for 102 purposes unless it does something new.
“It’s opening paragraph made the point that the claimed BCD method was not used for anything.”
No … it did not. The relevant portion of the opening paragraph is the following:
“They claimed a method for converting binary-coded decimal (BCD) numerals into pure binary numerals. The claims were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use. They purported to cover any use of the claimed method in a general-purpose digital computer of any type.”
Saying that the claims did not limit the invention to a particular utility is not the same as “the claimed BCD method was not used for anything.”
“Because the Benson algorithm was not tied to anything useful, but simply calculated a number, which was then discarded (meaning not used), the Benson claim was abstract.”
As far as I can tell, there was nothing in the record about the number being discarded.
I suggest you read:
link to en.wikipedia.org
link to uspto.gov
Referring to the first link, BCD has utility. Referring to the second link, there is nothing about having to explicitly claim a specific utility.
The fact of the matter is that the BCD algorithm has a utility but SCOTUS didn’t understand it and equated it to some “scientific truth” or “fundamental truth.” This is understandable since SCOTUS and 99.99999% of the people living on the planet at that time had very little understanding about/experience with computers.
Benson would be good law if SCOTUS understood the facts – however, they did not.
“because one has to ignore the program”
Why? The program is what alters the structure and makes the machine a new and different machine. CLEARLY, the program is functionally related, and CLEARLY, there is no legal reason to ignore the program.
I see.
Doing something.
You said that, not me.
Then you would handle the programmed computer as would the government in Prometeus. Pass muster under 101, and fail novelty under 102 because one has to ignore the program.
“But, is the “different machine” “improved?””
Having a multitude of different ways to do something IS an improvement.
Usefulness is required – yes.
“MORE useful” is not.
Let's, I meant "You may want to read Benson." Dragon got me one more time. Sorry.
Let's, wanted to actually read Benson one more time. It's opening paragraph made the point that the claimed BCD method was not used for anything. You seem to have discovered this fact the very first time.
Benson went on to ask the state that patents were given for useful applications of abstract ideas, not abstract ideas per se. I think you are now beginning to understand Benson. It was all about utility. An abstract idea not tied to any specific use is potentially useful for a lot of things, but patents are not granted for potentially useful things, only for useful things and for useful application of abstract ideas.
Because the Benson algorithm was not tied to anything useful, but simply calculated a number, which
was then discarded (meaning not used), the Benson claim was abstract.
But, is the "different machine" "improved?"
"Story for the wrong blog has replied to your comment:
"professor X then asks, "Which is the more useful?""
How is that a patent question?"
Usefulness is required to make an application of an abstract idea patentable subject matter. See e.g., Benson, Flook, Diehr and Bilski for
more.
“But computing a result and then discarding it as in Benson is hardly useful at all.”
Just so I’m clear, you are stating that the method claimed in Benson was being performed for no purpose whatsoever (i.e., it had no use)? The claimed process was merely the equivalent of somebody seeing how many blocks can be stacked on top of one another before they topple over. It was a meaningless exercise that was not useful?
If you are saying that there was no use derived from practicing the method of Benson, then the claims should have been rejected under 35 USC 101 for lacking utility.
However ….. I doubt that the process was entirely useless.
“They do not listen.”
Maybe because it’s the wrong point. Maybe building the different machine to compute is the point.
“professor X then asks, “Which is the more useful?””
How is that a patent question?
Day in Court?
That depends Rights!
Is there Law?
ROFL
What a great bunch of straw Ned – I have the perfect use for your fairy tale – here’s a match.
Let’s when I was young, I was taught to dislike Douglas for any number of reasons. But now, I think he was right more often than not.
He may have gotten a little off track in Benson with “wholly preempt.” But even Flook said that that portion of the decision was not to be followed as preemption was not the point.
I have begun to reconsider another of his cases: Mercoid. I have often wondered just why the patentee could not have claimed the stocker switches, and why he had to rely on contributory infringement.
Had Mercoid survived, the bar would have adapted it claims to actually claim the likes of the stoker switch directly.
The absurdity, if by “them” you mean me, I find your remarks a little off the mark as I am the one who consistently argues that “functionality” as in doing something is what makes programmed computers truly useful. They must do something that is otherwise patentable, such as modify a process, or be part of a machine so that the machine as a whole functions differently.
But computing a result and then discarding it as in Benson is hardly useful at all.
The the programmed computer bigots do not seemed to understand the difference, no matter how many different way you try to explain things to them. They do not listen.
Really? Ping's ding-a-ling?
OK, let's put three computers in a tent. One runs no-ops. A second runs the Benson algorithm from firmware, it computes binary from BCD and discards the result. A third runs the Benson algorithm, loaded from a computer readable medium. It too computes binary from BCD and discards the result.
In walks Ping-a-ling. He is asked to identify the difference in the three computers. He sees there on the table three black boxes consuming electricity and generating heat. He declares, like the observant ping-a-ding he is, that he cannot tell the difference.
The announcer, one Anon, says congratulations, ping. You have just proven that the programmed computer is a new computer and patentable as such.
Then Anon passes the microphone to professor X, who whispers softly into the microphone, "I have one more question, if you would be so kind, Mr. Ping."
Ping smiles, says, "Why, go right ahead and ask."
professor X then asks, "Which is the more useful?"
Ping, pauses and considers the three boxes. They all are computers. They all appear to be doing nothing. "Hmm….," he intones.
I think they are all equally useful — as computers.
the professor says, "You are right, Mr. Ping." But, what I really want to know is what is more useful because of its programming?
Ping replies, "I cannot tell the difference. They all seem to be generating heat. If they are doing anything else, no one can tell."
The good professor gives Ping a medal.
“Let’s, I am taking law.”
You are talking about law written by a 74 year old Douglas who likely never saw or used a computer in his entire 74 years. I’m sorry, Benson is bad law because it was written by somebody who didn’t understand the facts. Even 40 years later there are still justices that don’t understand the facts. However, in another 10 years, I doubt any justice in the Supreme Court will think software is nothing but an “abstract idea.”
“You are going to be hard pressed to convince these people that software is nothing more than “an abstract idea” with no tie to a practical application.”
You are going to be even more hard pressed to convince people that they do not need the software components and yet have the same functionality.
Try telling them the the software-less machine is the same when they cannot do what they want to do. Try telling them that what they want is already in there. Give them a magic wand and a chantbook and tell them they need nothing else to enjoy the same machine that has been configured with software.
Can we capture this on film and send it to Stephen Colbert?
“legal use of an old computer.”
Then why did you never take Ping’s Grand Hall programmed versus unprogrammed computer test?
I will tell you why – because you would FAIL. Just as every single person previously has failed.
Go ahead and “use” the unprogrammed computer. You cannot reach the same result unless you change the machine. This is a bedrock fact.
You keep on avoiding the part of the claim that the old computer is made into a new computer by the term “configured to.”
This is not metaphysics.
This was explained in law, and the court has ruled (now both before and after Bilski; see Alappat, see Ultramerical) that this was a holding in law. No matter how much you dislike this, you cannot change the words the court itself has chosen to use.
That's right your excellency. There is a lot of game playing BS going on here. Join the BS crowd, shall we?
Let's, I am taking law. You, in contrast, talk metaphysics.
A writing partial results on a piece of paper is legally using the piece of paper. It legally does not create a new piece of paper.
You should instantly see that your metaphysical creation of a new computer is a legal use of an old computer.
Ned’s game noted: accuse the other side of what you do.
refuse to seriously discuss…?
Ned – that’s a staple of yours – you have been chased over hundreds of posts spanning months of threads to actually discuss the issues, AND YOU NEVER DO.
The chant is used, becuase the chant works – it is law! It is up to you to overcome that law and you never do.
! ! ! BILSKI 14 ! ! !
and yes, we can add the second chant which destroys your awful logic of apllying a seingle exampel to overule an entire category:
! ! ! BILSKI 11 ! ! !
and yes, your typical game of I am Ned Heller and how dare you talk to me like that is once again played out. You need to get over yourself, everyone else already has.
! ! ! BILSKI 14 ! ! !
“That doesn’t convert the storage medium into a “new storage medium” or the paper into a new piece of paper.”
Wrong … it is different, hence new.
“I am still using a machine and not creating a new machine.”
In patent terms … maybe, maybe not. It all depends upon how the machine is claimed, and claiming a state of a machine is one way of doing it. If you claim the machine having a particular state, then a machine having a different state constitutes a new machine.
“I do not create a new shift register. Rather I use shift register.”
That’s where we disagree, and I feel very comfortable explaining to the average technological layperson (i.e., the people that would be making the decisions on the patentability of software), that a computer with no software on it is very DIFFERENT than a computer with software on it. Combine that with the knowledge that the new software is going to cost you money, and I think the average person will treat the addition of software as comparable to adding additional memory or not.
Case in point, a lot of people of buy computers online (e.g., Dell) and when you are configuring your computer to purchase, you have the option of adding both software and hardware. Both cost money, and both change the functionality of the computer. You are going to be hard pressed to convince these people that software is nothing more than “an abstract idea” with no tie to a practical application.
The problem with your metaphysical, philosophical arguments is that they don’t square with the real world that everybody lives in.
“I think would agree that the Benson claims …”
Why do you keep dodging me on this issue? The Benson claims, if presented today at the USPTO, would sail through 101 untouched. Benson is very limited on its facts (i.e., to a process that was allegedly directed to some fundamental idea/principle). Benson is easily distinguishable from all claims directed to computer-implemented inventions. I don’t care about Benson.
AI, where you get all this is beyond me. You really live in a fantasy world of your own creation. Really.
The MOT is word for word from Benson, not the PTO.
Cabined Bension. You do not even know how.
Your description of Diehr is ridiculous.
Your summary of Bilksi that it held that business methods ARE patent eligible, is ridiculous.
You refuse to seriously discuss the law, but simply fall back and begin reciting your chant. Bilski 14. Benson cabined. Mindlessly repeated, as a monk recites at a prayer wheel. Words. Repeated over and over. With no understanding of what they mean.
And then, you have the effrontery to accuse me of the very s h it that you are guilty of. You piece of s hit.
The references to natural animals is quite misplaced.
Or do you think a man made contraption that mimics birds (an aeroplane) or fish (a submarine) are not the subjects of patents?
DC: you should really consider finding a way for us to spot the shills.
Is it so hard to spot Ned and Mooney?
“Well, I think the combination would certainly be obvious to my sons (ages 4 and 6) who just last week used toy guns (the kind that shoot foam bullets) to shoot and kill flies.”
Everything is obvious to kids who at that age are natural inventors and geniuses. He ll when I was 6 I had already conceptualized email, internets, and the toy called, Transformers. All decades before they were even invented.
NED: “Sure. That is why an En BANC Federal Circuit adopted its MOT test, and the SC said that test is all but exclusive.”
Except the CAFC adopted a PTO created test and the SC never said such.
NED: Benson remains solid law at the highest levels. It has always been the anathema of the patent par, however; lead by Rich.
Except Benson has been cabined by Diehr. See Bilski 14.
::Facts Fixed. Delusions still need wrk::
Keep arguing Benson all you want, but you are arguing a dead case. People mock Benson because it has no teeth.
Replace “Benson” with “Ned” and truer words will never be spoken.
“shall I attempt to find Simple Questions’ on-point view of this”
Not needed. MM failed the simple questions tactic I employ. He clearly is not mentally stable, seeing trolls and sockpuppets everywhere (some even say like in Macbeth with blood spots).
Let him boast, it is quite meaningless.
Look Malcolm, we seem to agree on the law. Let's leave it at that.
Sent from iPhone
The issue is not whether this invention is obvious, but whether the Feds got the law correct on this art.
Sent from iPhone
others would have loved it if you were a fly on the wall after Conte had built a working prototype…
Huh. You really think there are “others” who wish bodily harm to IANAE? Like who exactly?
It goes very tiring beating you over and over only to have your return in the next thread. Sure sign of a paid shill.
Your lack of self-awareness is showing again, N-Dubz.
I’ve pointed this out to you over and over, but for some reason you have returned in this thread.
On the other hand, you do insist that you’re not a paid shill, and since you’re anonymous and most of what you say turns out to be inaccurate at best, we have no choice but to take you at your word.
The whole post states that the mere presence of the elements in the prior art is not enough to demonstrate obviousness. Neither is the ease of combining them. … You may have misunderstood.
Oh, so when you WROTE that “the ease of combining elements in the prior art is irrelevant” when determining obviousness, you actually MEANT that “the ease of combining elements in the prior art, by itself, is insufficient to prove obviousness.”
I stand by my original comment, Ned. I certainly did “misunderstand” you in the sense that I was unable to read your fxxxing mind. This was entirely your own fault because what you WROTE and what you MEANT were two different and contradictory things.
(With thanks to Hagbard above, on Nov 18) Ned, how fast would you say is the tongue of Conte’s pet chameleon? Fast enough to count as a lash?
Ned, in the patent, did Conte address that art? To be charitable, perhaps he thought it irrelevant to innovation in the very specialist technical field of fly hunting equipment.
Listen, anon, if you go back to the Rosetta Stone article, you can see there that I have found this whole topic fascinating for quite some time. I write out of intellectual curiosity rather than of financial interest.
You might wish to note that my original interest in this topic sprang from a Federal Circuit decision in 1992 that I disagreed with. It was heightened by In re Donaldson and In re Alappat. I was amazed (appalled really) by State Street Bank.
During this time, I have had a number of different employers. You figure it out. Have I been secretly employed by somebody to post on this topic since 1992? Really? Is that what you think?
Malcolm, taken out of context. The whole post states that the mere presence of the elements in the prior art is not enough to demonstrate obviousness. Neither is the ease of combining them. The post was the culmination of a series of posts and conversations I was having with 6. You may have misunderstood.
But the Federal Circuit in this case simply found the elements in the prior art, and noted the triviality of combining them. That was error. It was the same error committed by the in the lower courts in Eibel Process. The mere presence of the elements in the prior art, or the triviality of their combination once a reason to combine them is known, is by itself, not sufficient to prove obviousness.
There has to be a reason to combine them in the way the inventor did. The reason itself must be in the prior art and cannot be adduced from the inventor’s own statement of the problem he is solving, unless the problem he is solving was a known problem. In the latter case, the triviality of the solution is indeed relevant.
True KSR did say that the statement of the problem being solved by the inventor does not limit inquiry. The problem known to the art might be a slightly different problem. But, here the Federal Circuit never demonstrated any hint or suggestion that the combination claimed by the inventor here was suggested in any way by the prior art. The prior art wanted to get that fly. It it showed methods of slapping the fly with a swatter (admitted prior art). It showed methods of shooting the fly. But it did not show anything remotely like the whip/lash of the invention that solved the problem of speed identified by the inventor as the critical problem he was solving, but did not have the drawback of smear if one hit the fly with a swatter or propelled object.
NAL left because she was tired of wasting her time with you
LOL.
sockwad You never show why things are false or silly.
False. I show/explain why “things” are false or silly all the time, week in and week out.
And you know what the best part is, sockwad? The archives of this blog prove it. Once again: I’m right, you’re wrong. And you’ll never admit it.
Keep trollin’, sockie!
NAL left because she was tired of wasting her time with you, which is the same reason most people stop interacting with you.
It goes very tiring beating you over and over only to have your return in the next thread. Sure sign of a paid shill.
Yes, Ned,
Pay attention to how Malcolm carefully composes his posts so that they contain only tightly legal arguments based on fact and law.
No, wait….
Malcolm,
Your response makes no sense. No surprise there.
I have explained the difference and options in responding to you previously.
It is you that has these “obsessessions” – shall I attempt to find Simple Questions’ on-point view of this? According to you, everyone is either obssesed – because they answer you, or they are insane and have moed on, losing to your brilliance. More to the truth, is my point that you are a mindless, incessant Troll and most people realize that there is no point in trying to talk with you – or – as I have suggested – make fun of you and your delusions from time to time.
It’s that simple – really.
You again make this magic wand “false/silly” accusation, yet it is you that never seems to be able to do more than make accusations. You never show why things are false or silly. Even when asked. Especially when asked. This thread yet another case in point. Big on talk you are, but when it comes to any intellectual backup to talk, you disappear like the coward you are.
Your “track record” of promotions was shown for what it is in August this year, when you crowed ceaselessly. Well, that is until September, when your “track record” of promotions returned to its normal trends.
Also, as I pointed out, the comparison between you and Ping is especially apt. Both foul-mouthed gutter dwellers, but Ping delivered on substance. There was a point by point comparison on your respective changes in the law, and you were well, well deficient to the other gutter-dweller.
Plus, you might (just might) be able to claim some credit for the evolution of law, if you had any substance to your posts. You don’t. Thus, if a law does change, there is no rationale for saying that you were in anyway involved in effecting that change. You are like a broken clock in that regard, and occasionally beign right has nothing to do with you and your vaunted stubborn and mindless postings. Such is yet another of your (self)delusions.
And lastly, for all of your smack-talk, you STILL have not answered any questions!
You do know the response to mindless smacktalk, right? (I am pointing to the scoreboard).
A launcher that lashes? Like, a lash?
this is where I think you did not understand what I said
What you said, Ned, was “the ease of combining [elements in the prior art] is irrelevant.”
This is a broad, sweeping, generalized and (most importantly) false statement.
If you wish to qualify and clarify it, Ned, please be my guest. Maybe next time you can just take your time and write a comment that doesn’t contain broad, sweeping, generalized and false statements.
It is a primary reason you are so ineffective
LOL. If I was so “ineffective”, sockwad, you and shillywilly wouldn’t be so obsessed with responding to my comments (an obsession which causes you to make false/silly comments on a regular basis). In fact, as you are certainly aware, many of the changes in the law I have been promoting over the years have occurred. And more to come! Better buy another box of kleenex, sockwad.
And as for “policy-style positions of how he would like the law to be – Oh noes!!!!! The worst thing ever! LOL.”
You still don’t get the table-pounding paradigm of those that have facts, pound facts, those that have the law, pound law, those who have neither, pound tables.
It is a primary reason you are so ineffective.
I have pointed this out to you more than once, but you are only more than happy to follow your ineffective games and do the same stuff year after year after after year. In fact, you take pride in your ineffectiveness. Goody for you.
Here’s a hint: you are not becoming more effective by boring people to death. Outlasting people on a blog is not a sign of effectiveness, nor a sign of “being right.”
You outlast most people because they realize that you are a mindless, repeating machine who really does not care to engage in reason (and hence, the reason you do not answer actual questions).
Sure, it’s fun to push your buttons every once in while, but your delusions are quite well understood by most “regulars” here.
Any time you want to surprise anyone and actually start showing some true intellect, by all means, have at it.