Patentable Subject Matter: Relying on Benson; Construing Claims for Eligibility

By Dennis Crouch

FuzzySharp Tech. Inc. v. 3DLabs Inc. (Fed. Cir. 2011)

In a per curiam opinion marked nonprecedential, the Federal Circuit has vacated and remanded the subject matter invalidity finding of a N.D. California District Court and instead ordered the court to rework its decision in light of Bilski v. Kappos, 130 S. Ct. 3218 (2010) and subsequent Federal Circuit decisions on point. As discussed below, FuzzySharp’s invention relates to compression software for computer graphics. U.S. Patent Nos. 6,172,679 and 6,618,047. The main idea of the invention is to avoid calculations associated with always hidden surfaces. Although the specification explains that its implementation uses “fuzzy” math to calculate always hidden surfaces. However, “fuzzy” limitations are not found in the asserted patent claims. The application was filed in 1997, but claims priority to a 1991 Australian patent application.

FuzzySharp’s appeal was filed after the district court determined that the claimed method failed to pass the machine-or-transformation and therefore, under the prevailing law at the time, the method did not constitute patentable subject matter. In re Bilski, 545 F.3d 943 (2008). In its 2010 Bislki decision, the Supreme Court rejected the notion that the machine-or-transformation test could serve as the exclusive test of the patentable subject matter of a newly invented process. In the new rubric, the machine-or-transformation test offers only an important clue.

In its opinion, the Federal Circuit largely agreed with the lower court’s conclusion that the FuzzySharp claims fail the machine-or-transformation test, but, following the new Bilski rubric, remanded for a determination on the ultimate question of patentable subject matter.

Meaningful Limitations: FuzzySharp’s asserted claims involve two elements that are potentially linked to a machine – computation and computer storage. However, the appellate panel found those elements lacked “meaningful limits” on claim scope in the same way that the recitation of a general-purpose-computer is not a meaningful limitation of a software process that will only be performed on a computer. (Citing Gottshalk v. Benson, 409 U.S. 64 (1972)).

Claim Construction: An important and arising issue is the interplay between claim construction and patentable subject matter. Under Federal Circuit precedent, claim construction appears to be a necessary precursor. However, the Supreme Court has regularly ignored details of claim language in making its determinations – focusing instead on what it saw as the invention.

Here, the court held that some claim construction is necessary: “[W]e conclude that … the patent eligibility of at least one of the asserted claims turns on questions of claim construction that the district court did not have the opportunity to address.” It will be interesting to watch how the parties argue on remand for claim construction results that favor their hoped-for subject matter eligibility outcome.

Notes:

  • The per curiam panel included Judges Bryson, O’Malley, and Reyna.
  • The U.S. application was prosecuted by Carl Oppedahl’s Colorado-based firm.
  • The patentee is represented by Matthew McAndrews from the Niro firm on appeal; Jonathan Baker from Skadden Arps is handling the appellate defense.
  • Here is Claim 12 of the ‘047 patent that the Federal Circuit analyzed:

    12. A method of reducing a step of visibility computations in 3-D computer graphics from a perspective of a viewpoint, the method comprising:

    computing, before said step and from said perspective, the visibility of at least one entity selected from 3-D surfaces and sub-elements of said 3-D surfaces, wherein said computing step comprises:

    employing at least one projection plane for generating projections with said selected set of 3-D surfaces and said sub-elements with respect to said perspective;

    identifying regions on said at least one projection plane, wherein said regions are related to the projections associated with said selected 3-D surfaces, said sub-elements, or bounding volumes of said 3-D surfaces or said sub-elements;

    updating data related to said regions in computer storage; and

    deriving the visibility of at least one of said 3-D surfaces or said sub-elements from the stored data in said computer storage; and

    skipping, at said step of visibility computations, at least an occlusion relationship calculation for at least one entity that has been determined to be invisible in said computing step.

 

 

399 thoughts on “Patentable Subject Matter: Relying on Benson; Construing Claims for Eligibility

  1. See Diehr!!!!!!!!

    Diehr was silent as to any such firmware/software differentiation.

    Your response is nonsense and nonresponsive.

  2. bootstraps

    Translation: WAAAAAH WAAAAAH, I don’t like that law and I am going to ignore it (see? I have my eyes closed).

  3. We all know Rader is a Rich Kool Aid drinker.  We know Rich's agenda and his basic lack of honesty.   He did not recuse himself again and again on the meaning of 112, p.6, when he was part of the drafting process and under circumstances where his proposal to Congress was not adopted, but rather was rejected.  What kind of man drafts legislation and sits in judgement on it, twisting it meaning to what he wanted when what he wanted was rejected?

  4. Ultramercial bootstraps a the legitimate patentability of a dedicated computer operating in a special application using firmware into a general proposition all programmed computers are patent eligible regardless of application.  It is that simple.

  5. Deal with the blows already dealt to you

    If you think I’m going to engage you on that level, apparently before you’ve even read the case law yourself, you can deal me another one.

    The law is very clear and consistent on the functional relationship exception. All you need to do is take that well-settled exception and explain how/why/whether it applies to a computer reading a cookbook (printed on actual paper if Les prefers, or physically represented by ones and zeros if N-Dubz prefers) and carrying out a culinary recipe. I think you’d find it enlightening.

  6. with anon and N-Dubz predictably nowhere to be found.

    You have not answered my question above and I see no reason to pile on you at this point.

    Deal with the blows already dealt to you with the case law – as it is correctly understood , as opposed to how you would incorrectly spin it, then we can talk again.

  7. If the programmed machine is claimed as an element in a combination, in principle, I have no objection.

    Again, a distinction without a difference.

    The component of programming is but one of many components in a larger machine called a computer. Again, see Ultramercial.

    To not recognize this is the height of absurdity.

  8. This response is so inane as to not deserve a substantive response.

    Translation: This response cuts through my silly argument so completely that I am at a loss as to what type of BS to respond with.

    You are welcome.

  9. Firmware is dedicated to the machine. It transforms machine into a special-purpose machine.

    This is a difference without a distinction. Software transforms machine in exactly the same manner.

    “dedicated” – really?

  10. does not justify

    Except it does – that is what “We have held” means.

  11. does not justify

    Except it does – that is what “We have held” means.

  12. A machine that is not properly configured is like handing someone a screwdriver when they ask for a wrench (it’s a different machine).

    Once again, Ned, you miss out on that important different making clause: “configured to

    Once again, you have ignored Ultramercial where the component parts of a machine are simply recognized as being component parts.

    Why is it that you have never addressed the holding behind Ultramercial?

  13. Wow, that’s got to be at least four or five freshly-minted screen names, all created just to unconvincingly tell me I’m wrong on this one point, with anon and N-Dubz predictably nowhere to be found.

    The different states are separately patentable.

    Good to know. We’ll talk some more once you put that goal post back where you found it.

  14. Software and firmware share one thing in common. They're both instructions for a general-purpose computer. But that is the where the commonality ends. Firmware is dedicated to the machine. It transforms machine into a special-purpose machine. 

    Sent from iPhone

  15. without that Littany being printed or published or whatever

    More defelections – the list has been reproduced many many many times. What is ridiculous is the game playing. Ridiculous, but oh so expected.

  16. “What you are actually imagining is a circuit configured to assume two different states, and your ‘change’ is merely selecting one of them.”

    The different states are separately patentable.

    I can easily claim:
    1) An apparatus in state 1.
    2) An apparatus in state 2.
    3) An apparatus configured to change from state 1 to state 2.

    These three claims wouldn’t be rejected under 35 USC 101 for statutory double patenting in view of one another because they are not identical.

    Thus, I can claim “a computer in state 1”, which is different than “a computer in state 0” where state 1 is the programmed computer and state 0 is the unprogrammed computer.

    The fact that a particular state is ‘selected’ (i.e., “merely selecting one of them”). All characteristics of a claimed invention, to some extent, are selected.

    “When the traffic light turns green, is it a different traffic light?”
    Yes it is — it is not identical to a traffic light showing red.

  17. what amounts to a single means claim

    And what grand pompah gets to decide what is a “single means claim”? There exists no modern computer that can rightfully be lumped as a single means. Computers simply are extremely intricate machines composed of many many components and many many means.

    Thus, the subjective fallacy of Ned is revealed: “what amounts to” is what is desired to be outside the realm of patents for no other reason than “because that’s what I want.”

    Policy masquerading (poorly) as fact, defeated by law.

    The paper table folds when pounded.

  18. Ridiculous. One simply can't ask somebody to answer a litany of questions without  that Littany being printed or published or whatever. I am not going to do research to find out exactly what you're talking about when you ask me to answer all your questions however posed, whenever posed, and the like. Again such a request is simply ridiculous

    Sent from iPhone

  19. I agree with much what that article said until skidded off the edge of the world. Alappat claim was justified because the claimed rasterizer was a special-purpose machine specifically adapted for specific application and that was identified and claimed.

    Alappat does not justify the general proposition that all computers programmed for a purpose, are patentable subject matter. Rather like in Diehr, they have to be adapted to a specific purpose and it has to be claimed.

    Sent from iPhone

  20. It is good in combination claims.  It is preferential when claiming old elements. it is not good and it's not preferential when claiming what amounts to a single means claim.

    Sent from iPhone

  21. but it has just as obviously not changed for the purposes of patentability.

    Incorrect – See Alappat.

  22. Is the circuit changed if the gate shunts from in series to in parallel?

    The circuit has obviously changed electrically, but it has just as obviously not changed for the purposes of patentability. What you are actually imagining is a circuit configured to assume two different states, and your “change” is merely selecting one of them.

    When the traffic light turns green, is it a different traffic light? Yes if you’re a driver, no if you’re a patent attorney.

  23. Imagine a circuit that…

    …has a gated arrangement of resistors in series and in parallel.

    Is the circuit changed if the gate shunts from in series to in parallel? Remember, there are no addition or subtraction of parts…

  24. Hard to believe that the academic IANAE’s treatment of actual case law is found wanting?

    Not really.

    Back to the tower with IANAE!

  25. Re: Faulkner v. Gibbs.

    I don't know what your point is talking about a post '52 District Court case of the same name. That case is completely irrelevant to the point I am making. The point I am making is this: Faulkner v. Gibbs clarified that the Supreme Court did not object to the use of means plus function claims in combination claims, where the novelty was in the combination. They reaffirmed Halliburton. They reaffirmed that when a claim was masquerading as a combination claim, in essence, a single means claim because
    it's novel element was expressed functionally, that it was indefinite.

    Now when Congress, shortly after Faulkner v. Gibbs comes down, affirms that means plus function claim elements are proper in combination claims, what are we to think? It seems to anybody with any sense would think that they intended to enact Faulkner v. Gibbs.

  26. “The reply function isn’t working properly in my browser”

    Sounds like a job for an INVENTION!

    1. A reply button that functions wherein the reply button did not function the day before for Hagbard Celine.

    DO NOT INFRINGIN’ ON MAH PATENT D!

  27. I'm sorry, but my views really haven't changed. I have tried to explain to you why, but apparently you do not listen. For example, you might check the report of the AIPLA patent law committee committee on the same topic. I have seen a published here on the web. But the committee voted to amend the statute pretty much as recommended by the article, but with a corresponding amendment to section 282 which would enact the reverse doctrine of equivalents.  Essentially we would move the scope clause out of section 112 and into section 282. We would not remove it from the law, but would make it a defense.

    That was my recommendation. I wrote the committee report alone. Check it's tone.

  28. Night, you keep saying that I say that circuits are not patentable. I keep saying to you back that I disagree with what you're saying about what I am saying. 

    I think circuits patentable. 

    So please stop saying I do not think that.

  29. And just to be clear, the machine he handed you was special purpose machine made so in the same way as the Diehr mold was made into special-purpose mold by the use of the programmed computer.

  30. That, then, IBP only harms you, as you disregard a clear helping hand based on who is saying something rather than on what is being said.

    Your loss. I am not sweating your decision (no matter how much you think I am).

  31. Like I said before anon, it is not necessarily the general view of my credibility about which I don’t care–it is YOUR OPINION of the general view of my credibility about which I don’t care.

    I know you’re finding it extremely difficult to deal with this, as you present what you obviously believe to be compelling and persuasive arguments to support your opinion, and you in your certitude feel the need to try to hammer them home in the face of total disregard.

    Sorry, anon. I guess it boils down to this: even if you did have a reasonable point to make, I wouldn’t care, because it was YOU who was making it. Talk about a lack of credibility.

  32. and it equivalents

    This phrase must be accepted for what it says. See NWPA’s position, and note that others have likewise held – those others including the en banc Alappat case as well as the re-confirmed Ultramercial case – that software is equivalent to firmware is equivalent to hardware andt that each is but a mere component in a larger collective machine called a particular computer.

    You seem not to be able to accept this very fundamental fact and point of law, which must at least be acknowledged as such (even if you are only advocating a different policy objective).

  33. The reply function isn’t working properly in my browser – this is in reply to Ned:

    Ned: “You would allow patenting programmed computers in the abstract?”

    a. I don’t know what that means.
    b. Whatever it means, I wasn’t actually advocating anything either way, I was applauding SteveW’s attempt to inject some good sense into the debate: It’s pointless to argue endlessly about how the words of the existing statute apply to software “as such” and programmed computers, when what is really needed is a clear policy on whether software and programmed computers should be patent-eligible at all AND what additional criteria, if any, should apply apart from novelty and non-obviousness – e.g. in terms of the “utility” of the program. Does “utility” include entertainment value? Economic value? Technical value? Some, all or none of these?

  34. Ned,

    You just repeat over and over the same ridiculous arguments.
    1)a programmed general purpose computer is a particular machine. Computer software or information processing defines structure. The abstractions you refer to are for engineers to work. If they were abstractions in the sense you mean then the machine wouldn’t work.
    2) A vacuum is useless until you turn it on.
    3) A record player and music do not have a functional relationship nor does a record store information and then operate on the information. A record player cannot detect the tumor in your brain.
    4) mathematical algorithms as you say from Benson are an illusion. The operation of any machine can be represented by a mathematical algorithm. In Computer Science we have evolved so that we work directly with the a notation that seems to evoke Newton’s laws in the naive and simple minded.
    5) Information is represented and transformed. Transforming information takes space, time, and energy. Information is a fundamental property of nature that has revolutionized physics and science.
    6) Etc. with your nonsense.
    You also keep evoking these capture all and everything and if we let you have a patent for that then noone else could do anything. And, yet you do not actually give examples of inventions that are precluded. It is a mere scare tactic.

  35. Ned,

    You confuse “agreeing” with “listening” – an error of conceit.

    In fact, I would put to you that I have asked you (once agaqin) to answer the litany of questions as evidence that I have listened to you and I recognize that you still have not addressed the issues raised by those questions.

    Do not engage your game of deflections when I am (politely) trying to hold your feet to the fire of addressing difficult issues that you must eventually face.

  36. Your caring about my view of your credibility misses the point completely IBP.

    What you Should< ?i> care about is the general view of your credibility. Making vacuous arguments premised on a platform of “If I repeat a falsehood oftern enough it gains the perception of truth” is a poor avenue to take.

    That is the worthwhile point that I am trying to have you understand.

  37. No IANAE, your move was previously rejected – ans that’s why I included in the post immediately above the point about loading software and changing a computer.

    It is still your move as your treatment of existing case law is found wanting.

    Try again.

  38. any of my previous posts concenring “functional relationship” and how a lack of such would mean that computers would not be able to actually be loaded with software.

    A lack of functional relationship would also mean that countless housewives would not be able to actually bake cakes.

    I will await your actual response to real case law first.

    That answer has been previously provided. The functional relationship is to the substrate (poem to mug; program to disk; recipe to book) and not to any other thing. That’s the whole point of the printed matter doctrine, and it’s borne out by all the real case law.

    If the functional relationship were “the person/thing reading it behaves differently”, the doctrine would not exist at all, because it wouldn’t even cover the poem on the mug.

    Your move. Explain using consistent legal principles why a computer-readable flash drive is patentable but a computer-readable recipe book is not. You may assume, if you wish, that they contain the same recipe.

  39. No, anon, it is you who is missing the point:

    I don’t care about your evaluation of my credibility, nor do I care about your opinion of my credibility in the eyes of new visitors to this board.

    While you started to say something worthwhile at one point, some of the wheels quickly came off your argument and it’s now upside down in the ditch–and I’m driving past, laughing and flipping you the bird.

    Sorry anon.

    Patent law is wide open–not even senior appellate justices can agree on even the most basic concepts. Advocating for plausible interpretations is what we ALL do, including those appellate judges–except in rare instances where there is a well-defined paradigm, such as…

  40. From link to digital-law-online.info.

    To determine the scope of the “mathematical algorithm” exception, Judge Rich examined the three Supreme Court cases on the patentability of software-related inventions:

    A close analysis of Diehr, Flook, and Benson reveals that the Supreme Court never intended to create an overly broad, fourth category of subject matter excluded from Section 101. Rather, at the core of the Court’s analysis in each of these cases lies an attempt by the Court to explain a rather straightforward concept, namely, that certain types of mathematical subject matter, standing alone, represent nothing more than abstract ideas until reduced to some type of practical application, and thus that subject matter is not, in and of itself, entitled to patent protection. . . .

    Given the foregoing, the proper inquiry in dealing with the so called mathematical subject matter exception to Section 101 alleged herein is to see whether the claimed subject matter as a whole is a disembodied mathematical concept, whether categorized as a mathematical formula, mathematical equation, mathematical algorithm, or the like, which in essence represents nothing more than a “law of nature,” “natural phenomenon,” or “abstract idea.” If so, Diehr precludes the patenting of that subject matter. {FN41: 33 F.3d at 1543, 31 USPQ2d at 1556-1557}

    The court concluded that this was not the case in Alappat’s claimed invention, and so the “mathematical algorithm” exception for statutory subject matter did not apply.

    The court found no basis for software-based inventions running on programmed general purpose computers to be per se unpatentable.

    We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.

    … Alappat restricts the Patent Office from treating software-related inventions more strictly under Section 101 than other inventions.

  41. In Ned’s “it must be able to be dropped on my toe” fallacy-land, all patents fail sinec a patent is merely an abstraction, words written on paper that convey a legal right.

    The only “valid” patent would be one that is submitted with a working physical model.

    O so 18th century.

  42. The hardware remains the same for each step.

    Ned, you quite miss the claim as a whole with the changed machine featured by the language “configured to”.

    You have parsed the claim to only the action steps that describe th new configuration and missed (no doubt on purpose) the fact that an unprogrammed machine and the programmed machine simply are not the same machine. One can program a machine and not run that program (thus not engaging in the time-varying steps and still have a machine that violates the claim, as a whole) AND one cannot have a machine that is unprogrammed that can engage in the time-varying steps, and thus your argument is seen to be wrong no matter how you approach it.

    To somehow hold that “programming” does not change a machine is embrace the absurd.

  43. Can the views of Rosseta Stone: “In that document, the conclusion is that functional claiming is a good thing, picked on excessively by the courts and that other avenues now exist to protect (and thus that 112 p6 is not the be all and end all)” be squared with “My views really haven’t changed“?

    I think not.

  44. My views really haven’t changed.

    But your views do not match the tone or meaning of the conclusion you signed up to, that you keep on offering as some kind of “proof” when all it is is a law review article. Big whoop to begin with, and you are not even consistent with that big whoop.

    That’s the point.

    including the recent Faulkner v. Gibbs case, the meaning of the statute is unambiguous

    That’s also the point, the case you quote from is PRE-1952 and the only Faulkner v, Gibbs that was decided after 1952 does not speak at all to what you have claimed.

    Your L_ies have been exposed again.

    You cannot win an argument with your own argumetns and references.

    You are a T O O L

  45. Are you equating a circuit that is fixed with the sequential use of a circuit?

    ?? where is this coming from?

    Ned, you do not know how to read do you? Or are you being purposefully obtuse?

    T O O L

  46. Sure they can. The fact that my computer program is stored only in volatile memory is not (yet) relevant to patent law. Intellectually honest? That’s a little heavy, I’m just trying to jam a hypothetical into a short post.

  47. Ned, just nonsense you type. Shear nonsense. A machine of electric circuits that transforms information that is over 10 percent of our GDP and yet it is useless. OK.

    The abstraction you speak of are not realted to the term abstraction in patent law. The abstraction are only working levels for human conceptualization.

  48. Ok, the next time you fix a car, I will hand you the software.

    Try getting out into the real world Ned – you would see that your statement just proves the opposite of what you think as there as many times now that “handing you the software” IS actually done instead of handing you a wrench.

    T O O L

  49. Are you equating a circuit that is fixed with the sequential use of a circuit?  

    Imagine a circuit that converts a number to a voltage on an output.  Is that circuit changed if I operated the circuit in subsequent time slices to output different voltages at different times?  Absolutely not.  But that is what you say I can do with a computer where the output of an ALU changes every so ofter in response to an instruction appearing in the CPU's instruction register where it is decoded.  It is a new machine, according to you, each time the output of the ALU changes. 

    You have to realize that this is nonsense.  The physical circuits are not changing in either example.  The data in both are
    cause the voltage to change in the one and the output in the other to change.  What you describe is the operation of a machine, not a machine.

  50. “I support MM in the call to stop stealing names. MM is a mean troll, but that doesn’t mean you should steal his name.”

    Easy to accomplish. 6 and Ned have figured it out. Me … meh?

  51. Ignore that namestealer Ned. He is just trying to confuse you.

    Only a person with a GREAT COMPUTER BRAIN can create drivel such as I write.

    Can I get my cookie now?

    “Malcolm, we all know that a programmed computer is claimed as a sequence of steps.”
    Not always.

  52. Sorry Ned, it is (and if there was any doubt, I would remind you of the time that you well-over-the-top thought 6 was doing a great job of examination by merely agreeing with one of your viewpoints).

    Good luck with that.

  53. Take a look at the claim

    One claim does not an argument about “always” makes.

    You are stepping into the delusional medical method claim not being 101 eligile, therefore all medical method claims not being 101 eligible False Argument land, a land where real law does not go.

    Too many unnecessary questions arise if preamble language is considered only sometimes limiting.

    That sir, is your opinion, and one I will fight to the death to protect your right ot have. But, at the end of the day, it is only a mere opinion, and is not persuasive. To post a strawman about triply-nested “prambles” is likewise to venture into the “see my one example, now apply universally” gambit.

    That game is but a game and quite loses its effectiveness whenthe game is noted.

  54. but spaced in time between steps.

    If it were true that only a sinlge on-off were invovled, this might have some plausibility.

    But this fails gloriously when one considers the resistors in series and resistors in parallel idea.

    Sorry Ned, your spaced in time argument is DOA.

  55. and think about what the patentee is really claiming.

    The “essence” of the claim game: noted.

    Just like pornography.

  56. Your considered legal analysis of this particular subject

    No, such an obvious analysis is not one that I would consider a legal analysis.

    It just happens to be the way it is.

  57. Software is neither. Software is abstract.

    No Ned, see Ultramercial. And “Wrench” can too be “abstract” as in, I can envision one in my head – but such is pure obfuscation and game playing – unworthy of our discussion.

  58. SteveW

    Your light bulb example is inapposite. The changes that occur to a computer when software is loaded simply are not comparable to a light bulb. When I turn off my machine at night the changes effected by the loaded software do not evaporate and I do not need to restructure my machine the next day.

    Try to stay intellectually honest.

  59. I have, but not to you.

    A wrench is an article of manufacture or a machine.

    Software is neither.  Software is abstract.

    Software has various levels of abstraction, from the flow chart to the binary.  In the compute, software comprises a sequence of instructions.

    Sent from iPhone

  60. IANAE,

    My post was eaten, but the short recap is:

    Take your time, and come up with a better answer than “computers are just different, okay?” or “computers are the future of innovation” – and then we can all agree that you’ve won again.

    The better answers have already been previously provided (hint: see the hat band case and the measuring cup case), as well as any of my previous posts concenring “functional relationship” and how a lack of such would mean that computers would not be able to actually be loaded with software.

    As for your crrp hypo, I will await your actual response to real case law first.

    Your turn.

  61. It’s only “problematical” if our discussions here are limited to discussing only the current state of the law as it has been applied (and interpreted as such by you and your sockpuppet friend(s)).

    Not at all, Maloclm, and you again quite miss the point that credibility is an important aspect of posts.

    Clearly, the reason you miss this is quite obvious.

    The rest of your typical accusations merit the following response” ” “.

  62. it is a risk that I’m willing to take.

    Alas, that very statement incredibly lowers the value of your posts.

    As for the tongue-in-cheek, such humor does not translate well – my apologies for missing such as it is, or meant to be.

  63. Ned,

    I fear that you would be “living outdoors” as the euphemism goes, and would recommend most highly that you do not engage in any wagering.

  64. Ned,

    You are confused about what an “ad hominem attack” is and the point about being pleasant or not.

    I could likewise say that you would be more pleasant if you stopped you rgames so I would not be obliged to call those same games out.

    It is a bit funny – and something I alluded to in our dicussion on the Supreme Court Justices – I am every bit as reasonable and level headed on that subject as I am on this one. It is only your perception that has changed, and that due to the actions and beliefs that you are peddling. This is very much a “you” issue.

  65. IBP I don’t ever remember representing this view as reflecting the current status of the law.

    That’s because you never did, IBP. The sockpuppets are taking you for a ride on their Silly Train where you are only allowed to discuss ideas that they agree with, on their terms, or else you will be accused of dishonestly promoting your nefarious anti-patent agenda.

  66. The point is that the posting-style assumed here is problematice

    It’s only “problematical” if our discussions here are limited to discussing only the current state of the law as it has been applied (and interpreted as such by you and your sockpuppet friend(s)).

    For some strange reason, most of us who use consistent pseudonyms here don’t have a problem with discussing our opinions of the way that patent laws (e.g., judicial rules about claim construction) should be. And we also don’t have a problem discerning the differences between discussions about, e.g., what the law presently is, whether it is being applied correctly, and/or what the law should be (and why).

    The imaginary “problem” is one that you (“anon”) and your sockpuppets obsess over because, obviously, when you have nothing to say, you can always just post the same vapid nonsense (“you’re acting like what you say is the law!!!! waaah! waah”) over and over again. And then lo and behold you’ve created another “train wreck” discussion about your favorite topic: the regular commenters here and their “agendas”.

    Keep trollin’, NAL.

  67. You still have not identified why a wrench is patentable but a computer program is not. “unless the [wrench] is actually claimed in a process, it does, let’s emphasize that, DOES NOTHING!”

    OK

  68. PREAMBLE ALWAYS LIMITING!!!

    Take a look at the claim as it was depicted in the above original post by Dennis, blocks of text highlighted in gray.

    Take a look at the first block…it is text that is generally considered preamble.

    Take a look at the second block…what is it considered by the courts? Is it considered preamble, and hence not necessarily limiting, or is it necessarily limiting? If it IS considered preamble, is the first block now a preamble to the preamble? Is a preamble then considered a preamble to a claim, or a preamble to a part of a claim, or a preamble to a preamble? If it is considered a preamble of a preamble of part of a claim, is it then LESS likely to be considered limiting? If it is a sort of nested preamble, and if considered limiting, is the scope of its limitation applied only to that part of the claim which it preambles, or to the entire claim?

    And what about doubly- or triply-nested “preambles”?

    Too many unnecessary questions arise if preamble language is considered only sometimes limiting.

    This mess can all be cleaned up nicely if preamble language is always considered limiting of the subject-matter that it encompasses as a matter of grammatical construction.

    Note that I have changed my own verbiage from “the preamble”, as I think is most often used by courts, to “preamble language”, recognizing that there can be more than one part of a claim that could be considered “preamble” under a reasonable grammatical construction.

    As a matter of fact, I have seen a claim that included essentially 3 or 4 consecutive sections of preamble language, followed by, IIRC, 1 or 2 limitations. The word “comprising” was used 3 or 4 times. Interestingly, there was no “nesting” as such, they were all just consecutive–that is, there was nothing outside the envelope of that encompassed by the first use of the word “comprising”.

    I will spend a couple of minutes hunting for it later, and hope to find and post it for your enjoyment. I’m sure we’ve all seen claims like this before.

    “Preamble language” is a part of the claim, no matter where in the claim it appears. For all the reasons set forth in this and previous posts, it should ALWAYS BE CONSIDERED LIMITING.

    Now to find that claim…

  69. anon–

    You DO know that I was writing tongue-in-cheek when I said that, right? You know, poking fun at myself?

    If you can, find me one of my preamble-related posts where I unequivocally state that the preamble is legally always considered limiting. I don’t ever remember representing this view as reflecting the current status of the law.

  70. anon–

    If that is indeed the risk that you identify it to be, it is a risk that I’m willing to take.

  71. MM,

    The point is not whether or not IBP “made good points.”

    The point is that the posting-style assumed here is problematice and quite frankly, vacuous.

    If indeed IBP “made good points,” it is those good points that should be pressed – not this ianane repeat-until-assumed-true crrp.

  72. Ned,

    I don’t need to bet my house. Would you bet your house that your evaluation of what is current law on the same subject is actually current law?

    Really?

  73. I disrespectfully suggest

    You can suggest all you want, disrespecfully or otherwise – that won’t change the facts of the situation, nor will such suggestions change the law.

    All you are left with is table pounding, and in that regard, you are indeed “welcome” to Ned’s club.

  74. Ned,

    Accusing others is a game that MM has perfected and that you use quite often.

    The questions put to you are evident in black and white, and my reposting that such are there is no game at all.

    What exactly do you think that I am guilty of in what I say? What am I “accusing others of” that mirror any such crime of my own?

    Tell. Do. Please.

  75. Similar thought experiments have been broadly posted on this website.

    At least 6 of all the regular anti-software patent folk at least attempted to address the challenge.

    (Attempt and fail, but attempt nonetheless).

  76. Malcolm, we all know that a programmed computer is claimed as a sequence of steps.

    Ned, you just replied to a namestealer. Maybe you can ask Dennis nicely to do something about the problem?

  77. The real reason the other side here insists that a programmed computer is patent eligible is precisely to avoid the argument about whether the program is doing something within the Useful Arts or which might be abstract. A computer, after all, is useful. End of discussion they would say.

    That would explain why certain people go guanopsychotic and mumble something about Diehr when a court decides to look past all those drafting shenanigans and think about what the patentee is really claiming.

  78. I tell you what you need to do. You get some geniumus to make the software Hardware. And the only thing your new fangled computer can do is that one thing. TAAADAAA UTILITY! now you have all these new Hardware only computers that only handle that one process.

  79. A machine comprising a combination of physical parts is patentable using MPF language. But the law does not grant coverage of all machines performing the functions recited in the MPF elements. The law provides only that machine disclosed and it equivalents are covered.

    In contrast, a process is independent of the machine. It covers the math per se, but the law requires that the math be put to a useful application. The math cannot be claimed in the abstract.

    This is truly simple. Your constant refrain that my thinking is archaic has nothing to do with the very simple propositions of law we are discussing.

    Just because you can describe a machine or circuit mathematically does not allow you to obtain a patent that covers all machines that perform that math. That is claiming a principle in the abstract and was condemned in so many Supreme Court cases as not being worthing of listing.

    In contrast, the process is independent of machine, but require limitation to a useful application.

  80. I’m not really writing for you, I’m writing for the regular contributors and readers

    I remember the discussion, IBP. You made good points.

  81. Night, the stapler has structure and is patentable as such. If one discovers a new operation for the stapler, that is patentable in a process as a series of steps.

    It is in the statute. 35 USC 100.

    The operation of a stapler is not patentable as a new machine. Period. That is not only non statutory, it is ancient and well understood Supreme Court case law. See, e.g., Corning v. Burden where the difference is discussed.

  82. IANAE, the programmed computer is not sold that way. It infringes on use, exactly the same way a process claim infringes.

    The real reason the other side here insists that a programmed computer is patent eligible is precisely to avoid the argument about whether the program is doing something within the Useful Arts or which might be abstract. A computer, after all, is useful. End of discussion they would say.

    Thus if we were to ban business methods, the other side would say, but this is not a business method, it is a programmed computer, simply bypassing the argument.

    Benson noted the evasions and said that computer programs, programmed computers and processes using computers were not patent eligible. Useful applications of mathematical algorithms, however were. But the other side still wants to patent programs in the abstract. But such practices were condemned by Benson, and remain condemned.

    It is beyond belief that we today, 40 years after Benson are STILL having this argument. Why?

    Shall I name names once again?

    Read the signers of Alappat, but subtract Michel. He changed sides in Bilksi.

  83. Malcolm, we all know that a programmed computer is claimed as a sequence of steps.  The hardware remains the same for each step.  

    The means remains the same.

  84. Steve, the point I am making is that the use of a computer in a new process is quite patentable provided the process is otherwise patent eligible.  But the computer is the same computer regardless of the programming.  A powered computer will execute instructions according to its programs.  A programmed computer does nothing more than process data.  It is when the computer is tied to inputs and outputs that are useful that we get to novel subject matter.  But when a computer is tied to inputs and outputs we are no longer claiming a programmed computer are we?  We are claiming a system or a method.

  85. anon,  my games?  Would you bet your house on Alappat being confirmed by an en banc Federal Circuit or by the Supreme Court when the a programmed computer claim is again at issue?

  86. Of course it defines structure. Each of the steps of the method need structure and the combination of steps needs structure.

    I suppose all the magic of computers that understand human speech, recognize tumors, etc. is done with no structure. None. Magic.

    By the way, I support MM in the call to stop stealing names. MM is a mean troll, but that doesn’t mean you should steal his name.

  87. Computer programs have utility?  Pray tell what?

    A programmed machine has the same utility as a GP digital computer.  It has the capability of processing information.  It has the ability to consume electricity and produce heat.  But unless the programmed computer is actually claimed in a process, it does, let's emphasize that, DOES NOTHING!  It simply sits there, wasting electricity.  It takes data and
    produces data.  An observer sees a box with power on. The box is doing nothing.  It just sits there.  A complete waste.

    Let us move on from the fiction that a programmed computer is useful.  It is not.

  88. Ned — today’s computer processor is comprised of over a trillion transistor. These transistors, depending upon how they are arranged, can create a multitude of different machines. Thus, what is being claimed is not a single physical element.

    A computer processor is no more a single element than an autombile or an airplane.

    Also, few applicants invoke the sixth paragraph of 35 USC 112 in computer claims. Those that do need new counsel.

    OOOXXX

  89. No harm in repeating this reasonable request, I suppose.

    Thanks in advance, Dennis (or whoever has the keys and chooses to do something).

    MM

  90. “You state that X cannot. There is no evidence for that.”

    Step 1: Delete all the “software” on your first computer.
    Step 2: Get a second computer.
    Step 3: With your second computer, write us back as to your observations of your first computer’s capabilities (or lack thereof).
    Step 4: Ponder the evidence in front of you.

  91. Who said regardless of utility? You are the only source of that. You would blanket wipe out computer programs by pretending they all lack utility, rather than just saying that the ones that lack utility lack utility.

    If we call programmed computers machines, there is nothing distinguishing from other machines as far as they have to be useful, novel, and nonobvious. All machines are equally susceptible to the list of evils you describe.

    Try this re-quoted from your post: “You would allow patenting machines in the abstract? Any machine? Regardless of nonsense? Regardless of utility? … The player piano would be patentable under your theory every time someone creates a new song for it, regardless of the melody.” True that last part, too, because the player piano is programmed for a new melody with a physical device capable of description entirely as a machine with certain features geometrically placed in strategic positions that happen to also play a certain melody when operated. In fact, I think that player piano example of yours is more damning to machines in general than to programmed computers.

    If your argument is that examination with respect to programmed computers is bad, then putting your efforts into 101 fictions is a response that is not related to your described problem. Other areas of the law are potentially subject to bad examination.

  92. Anon, We discussed what to do a lot, as I said.  I favored a very liberal  construction of MPF claims, but I also understood that one could not claim the point of novelty functionally.  112, p. 6 authorized MPF claims only in combinations, thereby automatically addressing the point of novelty problem.  I therefor advocated the position the paper suggests might be the right approach.

    My views really haven't changed.  

    What you do not accept is that the words of 112, p.6, limiting the use of such language to combination claims, means what they say.  When one considers the whole story of 112, p.6, including the recent Faulkner v. Gibbs case, the meaning of the statute is
    unambiguous.

  93. Now, tell me

    Once again, Sorry Ned, not so fast.

    You do not get to escape the round of questions that have ben put to you merely by saying “I have asked the other side to explain the law.”

    The onus has been, and remains on you to provie answers and explain those answers to the list of questions that you have consistently run from (that laundry list includes at least Bilski 11, Bilksi 14, Ultramercial – and related new case law, the AIA – and various provisions that refute your views on statutory construction).

    To say now that you want answers is not your place. You need to provide answers, as it is you that want a different interpretation of the law. You do not get to evade, once again, under the guise of “I am waiting for answers.”

    Bad form. Unacceptable form.

  94. Ned, it beats relying on mere (paper) table pounding.

    What is worse – an utter fo-ol, or one that cannot beat that utter fo-ol with facts and law?

    When you take away your games, it just doesn’t look good for you.

  95. IBP,

    I get where you are coming from and while I admire your honesty about repeating a falsehood until it is accepted as a truth, you should be aware that your posts run the risk of losing credibility when fresh eyes view your advocacy (without the attendant disclaimers that you are actually advocating again) – but that’s a risk with the repeat-until-assumed-true path, and a reason why most resepectabel people do not engage that method (you have to end up defending your method time and again, and when people realize that you were merely advocating to begin with, most recognize the game and you lose respect for gameplaying rather than making your point in more traditional advocacy paths).

    Good luck with that.

  96. I think it more a difference between the respective jurisprudence than the respective “system”. I think there is a live debate in Europe, how effective a filter 101 should be: choose between the UK view and the EPO view. I think there is a similar live debate in the appeal courts of the USA. I think, on the issue whether there is a difference between “useful arts” and “technical character”, a great deal of wishful thinking is apparent from certain contributions to these pages.

  97. you always lose IANAE. Always.

    Do I? I can’t recall ever getting so much as an attempted answer to my question, let alone one good enough for you to claim victory.

    Let’s just jump (again) to the bottom line

    Okay, let’s skip to the end, then. Take your time, and come up with a better answer than “computers are just different, okay?” or “computers are the future of innovation” – and then we can all agree that you’ve won again.

    I would love to hear you explain why a computer-readable cookbook containing novel computer-implemented culinary recipes is not a “functional relationship” exception to the printed matter doctrine.

  98. A light bulb turned on is the same hardware as a light bulb turned off. Except where it isn’t. You pretend certainty where none exists.

  99. If the music serves a specific utility, then there is no problem with your hypothetical. If the music serves the same utility as all other music, then maybe.

    Computer programs clearly have utility. Beyond that – why bother making distinctions, indeed?

  100. Okay, let’s do that dance again.

    Let’s not – you always lose IANAE. Always. Let’s just jump (again) to the bottom line and save everyone from your tripe.

  101. Congress never authorized the patenting of programmed computers per se.

    A fallacious argument Ned – Congress never authorized the patenting of car components per se either – so what?

    See Ultramercial for the official view of computer components before you reply, and please incoroprate the actual law (and leave out your wishful rendition).

  102. differences between the US systems and the Euro system

    The biggest example of this is the difference between useful arts and technical arts.

    But, Ned, you are already know this, do you not?

  103. This might be difficult for a programmed computer claim

    No. Quite in fact the opposite: excessively easy given that any machine of any level of complexity (above that of utmost simplicity) can be described in several components. A programmable computer by its very nature is a complex machine full of component parts. Software is merely one of those component parts.

    Ned, you are jsut chasing semantics in pursuit of an agenda that does not fit the conclusions in the Rosetta Stone paper. Another semantic you chase is this “somehow to a purpose/not to a purpose” notion. It is more than a bit disingenuous as “programming” to those knowledgabel in the art implicitly entails purpose-driven coding and only a pedant would include prupose-less coding in the notion under discussion. It is just a big cloud of dust being kicked up and has no place iin a serious discussion.

    How much of those conclusions are yours and how much are the other author’s?

  104. “Don’t you get that with information processing what has happened is a shift where the methods and machines that are specially built to perform those methods are what is important?”

    I think we get that, but what we don’t get is why we should care.

    “What is captured is the type of machine that is claimed and the structures that can perform each step.”

    So then in other words, you’d like to be able to distinguish a machine in terms of a process. We get it. We also don’t like it.

    “Sorry that can be represened in a mathematical method too. ”

    By all means, lay it out for me.

    “Things have changed and as much as you want to beat them into the old paradigms that just do not fit,”

    Whoa whoa whoa brosky. It is you that are trying to fit these new things into the old paradigm of patent law. Instead, why do we not have “software lawl”? They can have their own set of obviousness rules etc.

  105. “But, the question is what does not fall under this category?”

    I showed you a patent yesterday and you haven’t shown me how it fits in that category. I think it’s because it doesn’t.

  106. Not really though NWPA, because if you go “down to the gate”, then there are 999 times out of a 1000 many different ways to implement whatever “function” you wanted to, so if there are more ways than the specific gate config you’re claiming that can perform the algorithm then you’re probably off the hook. You’re especially off the hook if there are many thousands of gate configurations that are different from the one you claimed.

    Now, if you try to claim every single way of configuring gates to perform the function by way of a certain algorithm then you have a problem.

  107. A programmed computer claim is not authorized by statute.

    Such claims typically take the form of a programmed computer comprising:

    Means for step A;

    Means for step B; and

    So on and so on.

    Such a claim effectively is the following: Computer comprising means for performing algorithm A, a single means claim.

    Such a claim does not describe two physical elements. Therefore, such a claim does not describe a combination within the meaning of section 112 paragraph 6. Such a claim is not authorized by that statute, and presumptively falls afoul of the doctrine of functional claiming at the point of novelty, as the program is the point of novelty.

    For more on 112, p. 6, please see Rosetta Stone, link to highbeam.com, or link to heinonline.org,
    or
    link to litigation-essentials.lexisnexis.com

  108. Night, a new machine is patentable, and can be described using functional language provided the claim is a combination claim as authorized by 112, p.6. That statute requires for machines two machine elements to form the combination. This might be difficult for a programmed computer claim.

  109. The doctrine of Printed Matter addresses this point. The FULL doctrine include the important provisio of “functionally related.”

    Okay, let’s do that dance again.

    Explain why a computer-readable medium containing instructions for a computer to do something is more “functionally related” than a chef-readable medium containing instructions for a chef to do something.

    In particular, I bet it’s relatively trivial to program a computer to read a recipe from a cookbook or off the internet and follow the instructions. What, then, of your “full doctrine”?

    See, this is the real problem with software under 101. It’s not a policy question of whether we want to grant patents in this field. It’s about what implications the rule has in other fields, if we’re going to start applying the same law across the board for a change.

  110. Max, I know.  To the extent that folks do not fully take into account the differences between the US systems and the Euro system, they can recommend to us results that are unfortunate.

  111. Um No, the good Federal Circuit does have to go through the motions of formally overturning an en banc decision, agreed.  But since Bilksi, it is all but a forgone conclusion.

    Only a utter fo–ol would rely on Alappat.

    Um No, are YOU an utter fo–ol?

  112. Which part of this do you think supports your assertion that: “All these cases stand for the proposition that a programmed computer by its lonesome is not patentable as… as a new machine. Period.”?

    It all reads to me as if the court is saying–We don’t know what to do about software–. I see no support for your assertion at all.

  113. Hagbard can speak for himself Ned, but what I think is that Hagbard is on the EPO line, that you need technical character to get over eligibility and then you need to claim technical features solving an objective technical problem in a non-obvious way to get over the 103 hurdle at the EPO.

    What technical problem is solved, when the novelty lies in the particular pattern of slits in a pianola cylinder?

  114. rejected? By whom?

    By Congress, who actually has the authority for writiing any such law that would outlaw what you wish to outlaw.

  115. What Ned is saying is if you have a machine and someone can come up with a mathematical algorithm to describe its function then the patent is invalid.

    You do realize that claims can go down to the level of the gate and scope could be the same as the claim you wrote above it is just a lot more work.

    Form over substance is your argument.

    Ban patenting of known compounds!!!! Clogging the entire PTO. Useless nonsense.

  116. Anony,

    Same theory could apply to a piece of paper with writing on it.

    The doctrine of Printed Matter addresses this point. The FULL doctrine include the important provisio of “functionally related.”

    Lexis has a decent (but not perfect) write-up on this.

  117. Therefore Alappat stands for nothing

    Your reading of case law is abysmal.

    Just because one aspect of a case is overturned does not mean all aspects have been overturned.

    Clearly, as reiterated in Ultramercial, Alappat is indeed good law.

    It is binding law.

    It is the definitive law on this subject.

    No matter how much that rankles you, how much you wish otherwise, merely proclaiming that it is not the law only shoots your own feet, as it shows that you do not understand how the law in reality works.

    Time for you to move on.

  118. Ned you go ’round and ’round on this. Don’t you get that almost any circuit and almost any machine can be claimed just as you have claimed.

    You have a pre-1930’s view of mathematical algorithm. I understand very well what you are saying. It is the fundamental argument in Benson that was very poorly presented in Benson. But, the question is what does not fall under this category?

    Don’t you get that with information processing what has happened is a shift where the methods and machines that are specially built to perform those methods are what is important? This business of the machine capturing all uses and all places etc. is nonsense. What is captured is the type of machine that is claimed and the structures that can perform each step. The methods are actually very limiting. It is merely capturing equivalents.

    What isn’t this? Huh? A tranformer? Sorry that can be represened in a mathematical method too. So a tranfomer should not be eligible for patentability. The fact is that you numbed by the general purpose computer. You do not understnd computer science well enough to know that the structure of the machine is tied to the method.

    That is really what all this comes down to. Things have changed and as much as you want to beat them into the old paradigms that just do not fit, and if you would think about it you should realize that the old paradigms have some big problems. So, no transformer or stapler patents.

  119. “The real question about the patentability of computer programs should be whether we want the world to be a place where programmed computers are patentable or not. Either side pretending that a clean syllogism can be constructed proving that programmed computers are a machine or not is just silliness.”

    I second the motion.

    Also, I propose that what we need is a mechanism by which the courts can put a policy issue such as this directly to the congress and demand a vote for a law settling the matter one way or the other.

  120. ” Two different processes. ”

    I think you’re going to need to write out your claim so that you can tell SPECIFICALLY that it is not a different process TO WHICH I”M REFERRING YOU TARD. I am specifically NOT referring to the process which the machine performs. I am SPECIFICALLY referring to the DIFFERENT process by which you are relying on in order to infer that the machine “must be” different. Simply writing down what the machine does in no way establishes that the machine “must be” different from any other machine. It is only through the use of the word “programmed” or “configured” that you may even begin to infer difference. And those words are signifying that something happened to the machine, a process in and of itself.

    God you are a tard. Maybe if you wrote out this claim to which you’re supposedly referring you could be a bit more clear.

    “Sorry … your reliance upon “magic” doesn’t work.”

    I’m not relying on any magic son, I’m relying on a lack of evidence for you position. Supply some and I would no longer take that position.

    “There is a difference, and I’m sure everyone from a 6 year old to a Supreme Court Justice could understand that there is necessarily a difference.”

    Well, you say that, but then when you go to the USSC and hear them talk about such subjects… let me just say lulz, you will be unpleasantly surprised.

    “The fact that this eludes you is telling … in a very sad way.”

    No fact eludes me tard, I’m simply playing a lawlyerly game. What, you’re not a fan? Surely you must be.

    “No … X’ is different than X because X’ can perform a process that X cannot”

    Again, a conclusory statement. You state that X cannot. There is no evidence for that. And there wouldn’t be in a hypothetical prosecution. And even if it can perform “a process” which X cannot, that process 99/100 has nothing to do with what is claimed.

  121. Basics – wouldn’t that same theory make an audio CD patentable? A computer is patentable, so a programmed computer also is (ie, the same computer with different bits stored on the hard drive). Then because a CD is patentable (or maybe a stereo witha CD in it), a CD with different bits on it (ie, different songs) is patentable. Same theory could apply to a piece of paper with writing on it.

    Basics — not saying I disagree with your results but I have a hard time following the reasoning with 101. I seem to go in circles a lot; might be because patent law is logically inconsistent.

  122. Night, no.

    A new circuit is a new circuit. However, if it performs math, one might claim the following:

    1. A circuit comprising:

    means for calculating alogorithm A.

    But under the law, the only subject matter actually covered by the claim is the circuit. One cannot actually cover all circuits that perform the math. To do that, one must claim the mathematical algorithm in an otherwise patentable process.

    Night, you say you disagree with me that information processing patents are properly claimed as processes, but you will not say why. I hope you would agree that the claim to the circuit cannot cover subject matter as broadly as you think. Such a claim cannot cover all circuits, all computers, all apparatus that carry out the claimed mathematics or information processing steps. Such breath is reserved the process claims.

  123. And, Ned, you cannot just skip the point. A method of operation of a stapler would under your reasoning capture the mathematical equation. You see that is the problem with Benson is that its views of algorithm and process is pre-1930.
    Your argument is that if the operatio of a machine can be captured by a mathematical method then it is not a machine.

  124. Mud, welcome. It it good to add one more person to this forum who is grounded in reality and not in fiction. Again, welcolme.

    In re Benson, authored by Rich, declared that programmed computers were patentable as machines. That case was overturned by Gottschalk v. Benson, which went out of its way to say that programmed computers, without more (i.e., a useful application), were not patentable subject matter.

    The folks here seem to cling to a theory that somehow Alappat, and en banc Federal Circuit case, held that programmed computers without more are patentable subject matter. We know from Benson that this cannot possibly have been the case. And indeed in Alappat, the Federal Circuit was careful to say that the claimed rasterizer was useful “to” produce a “useful, concrete and tangible result.” Of course, this latter test has been overturned. Therefore Alappat stands for nothing.

  125. Ned, interesting. A core belief of Benson flipped around. I get what you are saying, but I disagree with you. First, I wonder if you realize that most ee patents that I’ve seen could be invalidated under this rule. Second, you seem to rely on your premise that these are nothing but mathematical methods and ergo cannot be machines and therefore must be claimed as methods. You are assuming your premise to prove your premise.

    And, you know, the biggest problem you have is that this whole business of mathematical process and method is flawed. As I have said many times, what can be represented in some mathematical equation is merely a result of what we humans find convenient to represent in that way. The mechanical patent applications I wrote include a method claim. I think that the mechanical devices are nothing more than metal that are carrying out these methods, which they are.

    How would you distinguish the mechanical/ee/cs patent applications? You cannot in a fair way. And, further more the information processing methods could be carried out by mechanical means and not electrical means. So, I just don’t have time at the moment to respond to your comment. I understand very well what you saying, but disagree.

    I think fairly, that under your way of thinking all inventions would be reduced to processes except for something like a new alloy or any non-working machine. Any machine that actually had any type of method to it (including something as simple as a stapler) would be out of eligibility by your way of thinking.

    Ban all those known molecule claims. They are claiming known substances. Get rid of those patents. Total waste and they clog up the patent office.

  126. I don’t understand why you don’t get it?

    He doesn’t want to get it.

    Don’t you think it’s been obvious since the dawn of time that computer programs are methods of using a prior art device? Every programmer knows that software is a series of instructions to perform steps, which means that running software is a process.

    The reason N-Dubz and his ilk don’t like that answer is because they don’t want to sue the person who is actually using the invention. They want to sue the person who is selling the recipe in a neatly-labeled box. And apparently making out a case for inducement or contributory infringement is tricky when your box contains readable instructions in a standard computer language on a computer readable medium, indicated for use on a computer with the specifications listed on the box, that everybody knows the buyer will immediately insert into his computer’s medium-reader to perform the method, which is the only plausible reason why he would buy the box in the first place.

  127. Casual, if it is tied anything, it is tied to a computer graphics processor that displays three-dimensional images. The question is, whether the preamble objective is sufficiently limiting. Parker v. Flook has to be taken into consideration.

  128. You would allow patenting programmed computers in the abstract? Any program? Regardless of nonsense? Regardless of utility? I know you ban business methods in Europe. But we have no section 102/103 filter to clear out the nonsense. The player piano would be patentable under your theory every time someone creates a new song for it, regardless of the melody.

    If the program computer was patentable per se, there would be no filter whatsoever on patentable subject matter involving computers. Anything would be patentable regardless of how stu pid, inane, mundane, profane, in sane, or lame it was. You can’t be serious.

  129. Night, you may think I have not addressed your point about double EE before, but I have, many times.

    If an invention can be implemented in computers, in circuits, or any apparatus, the invention is independent of apparatus. Such inventions can be patented as processes. I have said this before. I say this again. I don’t understand why you don’t get it? I am not saying that you cannot patent information processing inventions. I am just saying that you have to patent them as processes.

  130. “Indeed, but 101 still does tend to get readers going though, doesn’t it?”

    101 … argh …. don’t say that section … argh …. it makes me mad …. [changes into the incredible hulking socket puppet]

  131. SteveW: “Clearly, a programmed computer is a different hardware device than the unprogrammed computer, if you want to be technical about the positions of logic switches, etc.”

    Steve, if you patent programmed computers without regard to utility you can patent any nonsense whatsoever. It would be like patenting the player piano with a new music. Any music. Why bother with making distinctions?

    You’re asking philosophical questions in the abstract. The Constitution authorizes Congress to promote the progress in the useful arts. Surely nonsense is not a useful art.

  132. Ned, you may agree that it is eligible under 101, but again you are trying to come up with some convoluted test so that only a small fraction of special purpose computers that happen to be able to be converted to software and a general purpose computer would be eligible for patentability. You also do not address the direct attack on ee patents.

    I think we should ban all claims to molecules unless someone can prove that there are new bonds or structures that are unexpected. This is completely reasonable. All the difference molecules can easily be generated by a computer, so there is no new compond unless it can’t be generated by known bonds. So, all new componds should be barred. All molecules forming the base pairs of DNA should be barred even those over length 15 as known. This is reasonable. Submit this petition 6 and I will sign it. What a bunch of wankers to sit there and just try every possible molecule and see what it does to the poor mice and then think they are scientist.

    Ned, you do not address the ee patent issue.

  133. Bikski 14.
     
    It was there explained that Flook expanded  the principles of Benson.  Diehr applied the MOT test from Benson.  "Application?"  That too was from Benson. 
     
    I will agree in principle that Diehr cabined Flook to the extent that Flook could be taken to oppose "claim as a whole."  But nothing in Benson suggested that it was not operating on claims as a whole principles.  Benson did not dissect.
     
    So, unless you actually believe the test created by Benson, the MOT, was somehow created by Diehr, when even Diehr attributes the test to Benson, I don't get it.
     
    Now, tell me in
    words exactly how Diehr cabined Benson.  Please.  We can talk.
     
     

  134. I agree. When the Morphing was continually done to hide the Fraud “OOPS” they missed something… When they added Samuels they forgot to list it in the DESCRIPTION OF PRIOR ART.. YOU KNOW THE FAKE ONE THAT IS LIKE NO OTHER, MORE PRIMA FASCIA. “OH MY GOODNESS.”

  135. I disrespectfully suggest that programming a machine changes nothing. I also disrespectfully suggest that the “machine”, if any, does nothing more than carry out exactly its intended and specified functions, exactly as it was devised and constructed to do.

    Both the “machine” and the data operated on are unimproved by the mathematical calculations that might or might not be carried out. There is substantial political action toward the establishment of the nonsense you’ve espoused, but the law on the subject is frankly unsettled. Even a brief scan of the referenced remand makes that rather clear:

    “Fuzzysharp has acknowledged that none of the claims
    result in the transformation of an article into a different
    state. Instead, it argues that its claims are tied to a
    particular machine because they require the use of a
    computer.”

    Nothing is “converted” into anything. Data becomes data by the operation of a preexisting system with the widely known and intentionally disclosed ability to transform data into data by means of widely disclosed and rather notorious logical rulesets.

    “In claim 12, the recitation of general-purpose
    computer storage could encompass any number of dispa-
    rate structures, including hard drives, CD-RWs, and flash
    memory modules. Although the lack of structural attrib-
    utes is not always dispositive under the machine-or-
    transformation test, we find it relevant in this case. The
    references to a computer in claim 12 impose only two
    limitations: the machine must be able to compute, and it
    must be able to store data. Those functions are essen-
    tially synonymous with the term “computer” and thus add
    little or nothing to simply claiming the use of a general
    purpose computer.”

    Once again someone has used a “computer” to “compute” and wants a bit more than a pat on the head for it. This has actually become a bit long in the tooth as an excuse to waste a court’s time.

    Attempting to rescue their failed skyball may or may not pay off:

    “Fuzzysharp argues that some of its unasserted claims
    are tied to particular hardware in the form of z-buffers
    and other specific pieces of computer hardware, e.g., ’679
    patent, claim 32, and that those claims “confirm that the
    methods of the Asserted Claims operate on and in the
    environment of computer graphics hardware systems.” In
    addressing questions of patentable subject matter, how-
    ever, we assess each claim independently. There is no
    basis for looking to other claims except to the extent that
    they inform the meaning of the challenged claims through
    claim differentiation.”

    The lawyers live to bill another day. All’s right with the world. Your computer might infringe if it’s so inclined but it may or may not have started to do so. Computers are capricious that way.

  136. *I paid for

    How can someone that isn’t with the Copy Right Office allow an Atty. that never was my Atty. to change what the Copy Right Office claims can never be done. And if that is in fact TRUE… So obviously the Facts are right there even though I will never understand how you got away with it? And then after changing the CIP to reflect the Trade Secret and a 1 Year Statute expiring… after I am told to show I am living in Tennessee when the Lawyer in Tennessee was not my Atty. but was obviously GODS Atty.even though he was charging me, and had me sign a Paper that was never Notarized either, doesn’t make me scratch my head… But it does make me wonder if Congress writes the Laws.. Why do they allow them to be ignored?

    And don’t EVEN accuse me of being Sacrilegious.

  137. Designing around my Copyrights you didn’t do, but you still used the image. Adding a Strap is Trade Secret theft. Stealing my Copyright Mail so you could add the Trade Secret and make it the CIP instead of the one I aid for when you never were my Atty.WOW.

  138. Ned Heller said in reply to Hagbard Celine…
    It’s the tie to computer graphics, right?

    – Well, yes, of course.

  139. “BOO HOO HOO HOO HOOO!!!!!!”

    That’s no fair. I demand that Dennis ban all of these name stealers and sock puppets. Also, I demand that this website be renamed “www.patently-mm.com”

    I also want a cookie.

  140. we have viable language to describe why programmed computers do not pass a 101-type test.

    Except we don’t. You only reach that level on a reach of policy. The “same set of hardware” fails the inseries/in parallel analogy, fails the actual capability analogy and fails the toy-box analogy. In fact, there is no actual analogy that does work that has not been disposed of.

    In fact, to equate the two only happens if you ingore the facts and ignore the law, and then turn a blind eye to the actual policy of what patents are for and purely decide to limit patents in a particular art field.

    It simply does not make sense.

  141. There is a “machine” of sorts here, comprising an eyeball and a 3D scene, and the claim is tied to it.

    Uh uh.

    A method of drawing a picture of a room comprising figuring out a perspective and drawing the room from said perspective.

    Oh but wait! Here’s an improvement.

    A method of drawing a picture of a room comprising figuruing out a perspective and drawing the room from said perspective except you don’t draw the stuff that you can’t see from said perspective.

    Of course, this is just for making a 2-D drawing. If you want to render something in 3-D, it’s like 5 trillion times harder which is why suicide rates among video game designers are higher than any other profession.

  142. The claim is for an algorithm that runs on a general purpose digital computer. But it seems to me that the algorithm differs from a purely mathematical algorithm, in that it is performing a calculation to model a physical system, i.e. human vision of 3D objects. It is strongly tied to a physical model of vision, and solves a problem of rendering scenes in accordance with the model, in a non-trivial manner. There is a “machine” of sorts here, comprising an eyeball and a 3D scene, and the claim is tied to it. It is a modelled machine, to be sure, but one modelled to be realistic. I think a claim such as this is sufficiently tied to a physical framework to avoid being characterized as merely abstract.

  143. helpful–

    I’m not really writing for you, I’m writing for the regular contributors and readers, who are likely to remember that I did exactly what you recommend quite some time ago, on another thread. At length.

    One of the earlier threads on this can be found here:

    link to patentlyo.com

    There are other threads as well.

    Go crazy, helpful.

  144. I think I have JUST CAUSE! If the ATTY. of RECORD on “MY” Patents was put out there… then why wasn’t the Oath out there too? That doesn’t seem fair. as a matter of fact it ain’t! Is that how you got to keep me in the box for another year? but you are forgetting the most important thing! There was no legitimate POWER! Whether the Congress wanted it or not.. 16 years with no Power?

  145. “You are the one relying on the supposed fact (for which no evidence exists) that there.”
    Sorry … your reliance upon “magic” doesn’t work. There is a difference, and I’m sure everyone from a 6 year old to a Supreme Court Justice could understand that there is necessarily a difference.

    This was all very carefully explained in Alappat – a holding then and now, once again (thanks to Ultramercial) a holding that is still good law in the Post-Bilski era.

    Not hard to understand – if you choose to pull your head out of your _ss, that is.

  146. an obscenity. A gross distortion of the facts

    Sorry Ned, the posts – all hundreds of them don’t l_ie. You’ve been running and running and spinning and juking and jiving and palying game after game.

    Anon is simply too polite to let you have it with both barrels.

    By the way, the cabin is the Bilski 14 portion that if you ever got around to answerign he litany of questions put to you, you would have recognized.

  147. Don’t know when you may have made that clear to anon, and don’t know which thread, but it sure as heck was not made clear here and now, in fact, your pretensions point to the opposite.

    If indeed you are advocating, your advocacy has a fatal flaw – you present your position as if it were so and those that know, know you are full of it.

    You might consider it more effective to clearly indicate that you are advocating for a change, what the current law is and why your change overcomes the existing status quo. You might consider saying that each time the nonsense appears, stop acting like what you say is law and stop posting comments that what you want not being law is some type of absurdity.

    Just a thought.

    Maybe, just maybe, what you say won’t be so easily dismissed as some wanna be restatement of law – Lord knows we have enough of that already.

  148. Sockpuppet, mockpuppet, lockpuppet, baboonpuppet, whose puppet are you? I’m a puppet, you’re a puppet, lets puppet together. Tra la la, fa la la, who needs to make sense. [screeching monkey noises]

  149. “So you say in this breath, but in the previous breath you’re relying on that process to distinguish your product x prime (i.e. claiming it “must be” different). Which position do you prefer to take?”

    What an id-iot. Two different processes. The process performed by the machine (i.e., a machine programmed to ….) is different than the process used to create the machine (i.e., “distinguish the machine by the process by which it supposedly has been created”). When you pass Reading Comprehension 101, come back and talk to us.

    “I’m not saying they are [different].”
    Hmmm … in your first comment, you were taking me to task for saying that they were different. You didn’t pass Logic 101 either.

    “You are the one relying on the supposed fact (for which no evidence exists) that there.”
    Sorry … your reliance upon “magic” doesn’t work. There is a difference, and I’m sure everyone from a 6 year old to a Supreme Court Justice could understand that there is necessarily a difference. The fact that this eludes you is telling … in a very sad way.

    “it is you who are making a conclusory statement that X’ is different from X simply because a process is performed upon it where the process isn’t even stated.”
    No … X’ is different than X because X’ can perform a process that X cannot. It appears that you didn’t even make it past remedial Reading Comprehension.

  150. The President’s Commission on the Patent System[4]rejected the proposal that these programs be patentable:[5]

    Does it count if the President’s Commission on the Patent System was itself rejected?

    Why not?

    The old “mantra” of it would make our jobs too difficult is decidely a poor reason to excllude subject matter. That’s how it went down then. Nothing ahas changed in this regard.

  151. anon–

    You haven’t noticed the obvious–I’m ADVOCATING that the preamble SHOULD always be considered limiting, NOT STATING THAT IT CURRENTLY IS UNDER THE LAW.

    Haven’t I made this clear to you before?

  152. Did you read Rosetta Stone?

    Did you?

    Can’t tell from the difference in that document and the conclusions you peddle here.

    In that document, the conclusion is that functional claiming is a good thing, picked on excessively by the courts and that other avenues now exist to protect (and thus that 112 p6 is not the be all and end all).

    Here, this rendition never cease to proclaim the evils of functional claiming, indicates that eh courts have done more than they actually have (and that such over reach by the courts is good) and thinks the only thinkg that is connected to functional claiming – the absloute be all and end all is 112 p6.

    There is a comedic gross distortion between the two.

    Seriously, it’s as if there are two different Ned Hellers.

  153. IMAGINE ASKING FOR A BIRTH CERTIFICATE FOR MY MARRIED NAME. I WONDER WHY HE DIDN’T HEAR MY HEAD BLOW UP WHEN HE FED ME THAT LINE?
    NOW I WILL ALSO FILE UNDER THE LARCENY STATUTES IN MASS, TENNESSEE, FLORIDA, AND VIRGINIA. I’M BOUND TO HIT THE CORRECT JURISDICTION. AGAIN THE CORRECT STATUTES MATTER.

  154. “It would be a mistake to suppose that because its results are given in the notation of a more restricted science, its processes are therefore restricted to those of that science.”

    Linda Lovelace.

  155. The real question about the patentability of computer programs should be whether we want the world to be a place where programmed computers are patentable or not. Either side pretending that a clean syllogism can be constructed proving that programmed computers are a machine or not is just silliness.

    Clearly, a programmed computer is a different hardware device than the unprogrammed computer, if you want to be technical about the positions of logic switches, etc. Further, it’s clear that a description of the programming logic is sufficient for one of skill in the art to build such a computer. Accordingly, if we live in a world where programmed computers SHOULD be patentable, we have a ready description for how a 101-type test is met by it.

    We can also say that a programmed computer is just the same set of hardware as an unprogrammed computer, if we want to ignore the positions of logic switches or data bits (e.g. we can call them mere signals or transient information). Accordingly, if we live in a world where programmed computers SHOULD NOT be patentable, we have viable language to describe why programmed computers do not pass a 101-type test.

    When we pretend we are talking about logic instead of policy, the debate degenerates to name calling rather than useful discussion about how the world should be and why (i.e. if you don’t understand my logical argument, you must be an unreasonable person). This is no way to develop an area of law, and it’s particularly sad that practitioners in our supposedly intellectual area of the law cannot rise above that.

  156. Ned, you’re attempting to have a discussion with sockpuppet nxtcases whose only consistent position is that every machine is 101 eligible and every process is 101 eligible unless the Supreme Court has looked at the particular claim at issue and says “No, it isn’t,” in which the case the Supreme Court (according to the sockpuppets) most likely got it wrong.

    Other than repeating their mantra, they have no interest in “discussing” any subject with you or anybody else, and they never will.

  157. Anon, this is an obscenity.  A gross distortion of the facts.  You should know better.

    The other side in this convo has repeatedly stated that Benson has been cabined, but has yet to even once say how.  Even once.

  158. Benson:

    "We have, however, made clear from the start that we deal with a program only for digital computers. "

    "It may be that the patent laws should be extended
    to cover these programs, a policy matter to which we are not competent to speak. The President's Commission on the Patent System[4]rejected the proposal that these programs be patentable:[5]
    "Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. Direct attempts to patent programs have been
    rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further and should not be permitted."…
     If these programs are to be patentable,[6] considerable problems are raised which only committees of Congress can manage, for broad powers of
    investigation are needed, including hearings which canvass the wide variety of views which those operating in this field entertain. The technological problems tendered in the many briefs before us[7] indicate to us that considered action by the Congress is needed.

  159. Also, shouldn't Rich have recused himself when the issue of interpretation of 112, p. 6 came up?  After all, he proposed legislation that would have overturned Halliburton.  That legislation was not adopted.  Yet, he insists that the "effect" of the legislation that was adopted is the same as the legislation that was not.

  160. In part, that’s why Congress passed the DMCA.

    Aside from the ignorant conflation of patent and copyright law, perhaps what MM wants is this:

    Bill: H.R. 3261

    One line of reasoning taken by the bill’s critics said that this bill showed that the idea of using DNS blocks to combat rogue sites was “so weak” that it became necessary to take the extra step to assist sites in bypassing DNS interdiction.

    The public interest group Public Knowledge issued a missive to its supporters stating, “A dangerous bill has been introduced in the House of Representatives that seriously screws with the internet. By short-circuiting the legal system, it gives rightsholders a fast-track to shutting down websites. By creating conflicts between ‘DNS’ servers, it would make you more vulnerable to hackers, identity theft, and cyberattacks. By sanctioning government interference with the internet, it would make the internet more censored, akin to that of China and Syria.”

    Perhaps other leftist anti-IP forces care to chime in?

  161. Les,

    See my post at 4:59 PM – more than simply “chapter and verse” is required and more has been asked. Repeatedly.

  162. Your quotes are bogus and do not take into account the law as it is today.

    Anyone can quote an old decision. The trick is to understand when that quote matters.

  163. IBP,

    I think you assume a stipulation that you have to prove.

    You are treating a preamble as if it must be a limitation.

    “Must” is too strong and is unwarranted. It may be, but it also may not be – and that is the entire point of the discussion. It is you that is being an obscurantist, drawing unnecessary and unwarranted conclusions, and missing the mark entirely.

    Try again.

  164. Sorry looking glass, MM is a lost cause.

    Did you not notice that he refused answers after stepping into the “cowards do not provide answers” trap?

    To expect anything but his crybaby postings is to expect too much.

  165. Sorry Ned, not so fast.

    You do not get to escape the round of questions that have ben put to you merely by saying “I have asked the other side to explain the law.

    The onus has been, and remains on you to provie answers and explain those answers to the list of questions that you have consistently run from (that laundry list includes at least Bilski 11, Bilksi 14, Ultramercial – and related new case law, the AIA – and various provisions that refute your views on statutory construction).

    To say now that you want answers is not your place. You need to provide answers, as it is you that want a different interpretation of the law. You do not get to evade, once again, under the guise of “I am waiting for answers.”

    Bad form. Unacceptable form.

  166. I’m not really sure, but is the (2) ignoring portion being performed DURING the visibility computations, which is expressely against what they said: the method being performed BEFORE the visibility computations?

    LOL. The EP claim is far better than the US claim, but I agree with 6: the phrase “the method being performed before said visibility computations” should be deleted. It makes so sense.

    The invention is properly and succinctly described as follows:

    “1. A method of performing visibility computations in 3-D computer graphics, wherein said visibility computations are performed on 3-D surfaces or their sub-elements, or a selected set of both, the method comprising (1) for a selected group of viewpoints, determining which of said 3-D surfaces or their sub-elements are always invisible to said group of viewpoints; and (2) ignoring always invisible 3-D surfaces or their sub-elements during said visibility computations.”

    On an honest planet, everyone involved with this patent would feel ashamed.

  167. 6 perhaps it helps to factor in Europe’s language stew. 40 EPO Member States and nearly as many languages, with very few in the patent litigation community having English as first language.

    That might explain the European Principle of Synthetical Propensity (construe the claim with a mind willing to understand….building up meaning rather than breaking it down). Then, in London, the way to construe claims is to ask “What was the claim writer using the language of the claim to mean (to a PHOSITA)”.

    Under such construction regimes, many clarity “problems” aren’t problems at all.

  168. Yeah, what tall tales said.

    Show me where even one of them said that a programmed computer by its lonesome is not patentable as a process or as a new machine please.

    Such a finding would directly contradict the statute:

    35 U.S.C. 101 Inventions patentable.

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

  169. Prof. Crouch,

    The “main” landing page still shows that there are 68 comments to the thread “Federal Circuit Again Declines to Revisit Cybor,” but those comments will not show by jumping to the link from either the “Recent Posts” or “Recent Comments” sections.

  170. All these cases stand for the proposition that a programmed computer by its lonesome is not patentable as… as a new machine. Period.

    False.

    Particular claims were held to be nothing but abstractions (there were no programmed computer claims in any of those cases).

    The stretch you want is not supported.

  171. Much better Max, and indeed it shows a more easily 101ed format.

    Determining some surfaces that are always invisible from a group of viewpoints and ignoring them in a visibility computation.

    Also, I’m not really sure, but is the (2) ignoring portion being performed DURING the visibility computations, which is expressely against what they said: the method being performed BEFORE the visibility computations? Again, impossibilities built in lead to 112 1st issues of enablement.

    Learning to draft would be good for these folks. But then, the EPO’s failure to catch problems like this is not surprising to me, I’ve seen some dooseys come out o there.

  172. Yes they do.

    Your turn to repeat the mantra.  (Picture the monk at a prayer wheel, spinning and chanting.)  

    All these cases stand for the proposition that a programmed computer by its lonesome is not patentable as a process or as a new machine.  Period.

  173. The Shilling, you have got to be kidding.  I have asked countless times for anyone on your side of the argument to explain what they mean when they say Benson was changed or cabined or whatever.  I have yet to receive a substantive response.

    I invite you, Shilling, to tell us here and now how Benson was cabined, changed, limited, reduced, or whatever you want to call it.  Tell us, please.

  174. How about the claim the EPO issued? It reads:

    “1. A method of reducing the visibility computations in 3-D computer graphics, the visibility computations being performed on 3-D surfaces or their sub-elements, or a selected set of both, the method being performed before said visibility computations, the method comprising (1) for a selected group of viewpoints, determining which of said 3-D surfaces or their sub-elements are always invisible to said group of viewpoints; and (2) ignoring always invisible 3-D surfaces or their sub-elements during said visibility computations.”

    Well, the EPO thought it clear enough. It is, isn’t it?

    The EPO-issued claim is much shorter than any independent claim of the as-filed PCT application. That’s weird.

  175. “What that process is doesn’t matter.”

    So you say in this breath, but in the previous breath you’re relying on that process to distinguish your product x prime (i.e. claiming it “must be” different). Which position do you prefer to take?

    “Also, what the change is doesn’t matter, EXCEPT IN THIS VERY IMPORTANT STEP I’M ABOUT TO MENTION”

    So it matters in one (or more?) of the most important steps of determining patentability but we should allow claims (even whole applications) to never even tell us about it?

    Great idea Einstein. Way to setup a totally respectable patent system. Had enough sarcasm yet?

    And guess what, it matters in more than 103. It matters in 102 as well (and maybe 101 and 112 but we’ll set them aside for a second). Perhaps that change had already been made inherently in another computer but we’ll never even know because the person submitting the patent app didn’t tell us anything about it, and neither did the applicant who submitted for a patent in the reference because courts didn’t make him in order to get his patent.

    “What is being claimed is not the product of a claimed process but a machine that performs a process. They aren’t the same.”

    I’m not saying they are. You are the one relying on the supposed fact (for which no evidence exists) that there “must be” a difference as a result of the programming. Fine, there may very well be such a difference, so tell us all about this programming and/or what effects this programming has on the structure of the machine and we’ll determine that for ourselves.

    If you do not wish to rely upon that then that is also fine, take your 102 and be happy with it.

    In other words, it is you who are making a conclusory statement that X’ is different from X simply because a process is performed upon it where the process isn’t even stated and then basing your entire position on that conclusory statement.

  176. It is a very strange claim indeed.

    Let’s break it down a bit.

    12. A method of reducing a step of visibility computations in 3-D computer graphics from a perspective of a viewpoint, the method comprising:

    computing, before said step and from said perspective, the visibility of at least one entity selected from 3-D surfaces and sub-elements of said 3-D surfaces, wherein said computing step comprises:



    deriving the visibility of at least one of said 3-D surfaces or said sub-elements from the stored data in said computer storage; and

    skipping, at said step of visibility computations [i.e., the step referred to in the preamble] at least an occlusion relationship calculation for at least one entity that has been determined to be invisible in said computing step.

    This claim is a bad joke.

  177. Actually after having read the post the claim appears to suffer from several fatal defects. First of all, one may not “reduce” a step. It is unpossible, as the “reduction” of a step is simply creating a different step (which notably is absent from the claim), and unpossible things generally get the 112 1st enablement. Once that fatal flaw is sorted out the claim will necessarily fall into a more easily invalidated form under 101. Although the ultimate validity of this claim or any other under 112 1st or 101 is a question for a court and I express no opinion on the matter.

    And to the extent that they’re simply taking a round about stup id way of claiming a method, disregarding their fed up preamble, and the effect of that fin up the preamble, the claim still seems wide open to a 101. It would take about 5-10 minutes which I choose to not spend in order to figure out how to properly word the abstraction being claimed it seems. I presume the defendant already spelled it out in his briefs. But again, the ultimate validity is a question for a court and I express no opinion on the matter.

  178. Tell us, sir, just how Benson was “changed.”

    It would be better for all if you told us Ned. Tons of people have already told you and yet you keep on making these same mistakes.

    Adding yet another telling you won’t stop you from doing the same yet again.

    Actually, nothing will, for these are the Shilling Grounds.

  179. Can anybody else not see the comments on the immediately preceding Retractable Technologies thread?

  180. “So, please state the rule that is being claimed in the abstract? ”

    I take no position on the instant case. Nor do I plan to as it is entirely boring and will being going back to the DC. If it should wind back up to the CAFC then I’ll take a swing at er.

    Oh and btw, if you don’t mind, please tell me how to express the following randomly choosen invention by a friend of mine from a case he’s working as a mathematical equation: 4369458

    I’m eager to hear all about it. Set it forth.

    And what is so wrong with suiting our legitimate policy needs?

    Btw, did you sign the petition yet?

  181. sockie: What is being claimed is … a machine that performs a process.

    A tractor, wherein the tractor is used for hauling gravel only in months with an “R” in them and only people with a “B” in their name are permitted to operate it.

    I can haz patent now?

  182. Information takes space, time, and energy to transform.

    Transforming information is every bit as much as a transformation as MM adding a hydrogen atom to the tip of his red nose.

  183. I can just imagine the endless nonsense that MM, 6, and Ned will write in this thread. Just saying the same nonsense over and over and not addressing the substance of the arguments others have presented.

    A little microenvironment of our nation. The let it burn crowd trying to burn down the patent system for their own advantage while sticking dogmatically to their arguments while refusing to address substantive arguments of their opponents.

  184. “Your lack of understanding of how Benson has been changed with subsequent case law is a monumental testament to Mankind’s pig-headed refusal to understand.”

    This is Rich. [Pun intended.]

    Tell us, sir, just how Benson was “changed.”

  185. “That is an attempt to distinguish the machine by the process by which it supposedly has been created.”

    Your logic isn’t sound. Something (e.g., “X'”) that is different from a precursor (e.g., “X”) is different because some process has changed it. Some process must necessarily be performed. What that process is doesn’t matter. Also, what the change is doesn’t matter (so long as its not obvious).

    What is being claimed is not the product of a claimed process but a machine that performs a process. They aren’t the same.

    “A machine being programmed is an action performed upon the machine it is not a state of a machine.”
    The programmed machine is in a different state than a non-programmed machine.

  186. I see that 6, MM, and Ned are up to no good again. Going back to Benson and expanding it are we? So, please state the rule that is being claimed in the abstract?

    And, please try to update your minds to at least the 20th century and figure out that any invention could be expressed as a mathematical equation.

    The never ending saga of the shills trying to get that PTO to themselves. And, Ned, EE patents? Most of your disk drive patent are invalid under your reasoning. You just want to maintain an illusory distinction between software and hardware that no one in the field that actually invents maintains.

    What I hear from top inventors with ph.d.’s in (EE/CS/physics): there is no difference between software and hardware. We need to make sure to claim this right since any part of this could be pushed into software or pulled out into the hardware.

    But, then that is reality and Benson is the fiction of pyschotic madmen making up terms and thoughts to suit their needs–policy needs.

  187. Yes, views can differ–which of course precludes the conception of any general “federal circuit precedent”, as suggested by Dennis.

    Also, Fuzzysharp is expressly marked “nonprecedential”, whereas Ultramercial is expressly marked “precedential”.

  188. “You also seem to forget MPEP 2173.05(g) ”

    A machine being programmed has nothing to do with any function even if a functional limitation should follow the recitation of the machine being programmed (implicit or explicit). A machine being programmed is an action performed upon the machine it is not a state of a machine.

    “this isn’t a product by process claim. As such, your last paragraph was a waste of time.

    I agree, but they’re making hypothetical claims where the machine “must be” changed based upon some method which is performed upon it (i.e. the programming). That is an attempt to distinguish the machine by the process by which it supposedly has been created.

  189. I am pretty sure that such descriptors as “bizarre, nonsensical, utterly result-driven” are not historical facts and are instead very much indicative of crying, “Sockie.”

    You are without a doubt, the site’s biggest crybaby.

    Grow up already.

  190. basics–

    All this unnecessarily confusing verbiage:

    “breathes necessary life into the claim”!!

    “meaningful limitation”!!

    is totally obscurantist, unnecessary, and misses the mark entirely.

    It just shifts the inquiry to an ever-expanding scope: What is now necessary, to breathe life? What is meant by meaningful? The rules you and the court have articulated do not provide answers–they merely rephrase the question: should the preamble be considered limiting? in an unnecessary complicated and ultimately inconsistent manner.

    How about an answer instead? YES, the preamble should always be considered limiting.

    The preamble is not a preamble “to” the claim, it is a preamble “of” the claim. It consists of limitations, and is a preamble to a set of further, often more detailed limitations. It comes AFTER the verb “claim”, as in “I claim…(preamble).” It is added at the sole discretion of the applicant, and need consist of no more than “an article comprising”, or “a method comprising”.

    It is a part of the claim, its inclusion was decided by exclusively the applicant, and therefore should always be considered limiting.

    What, now there is more than one class of limitation? Meaningful and non-meaningful? “Breathes life into”? “Patentable quality”?

    Any and all limitations are “meaningful”. They either impart, in combination with other limitations, novelty, utility, or non-obviousness, or they do not. The claim must be considered as a whole. The differences between the claim and the PA must be ascertained. There can be no such thing as a “meaningless limitation”. Something is either a limitation, or it is not. If it is, it limits the claim scope–if it is not, it does not limit the claim scope.

    ARRRRGH!

  191. Given Rader’s opinion to the contrary when writing for the panel in Ultramercial, what is your evidence for this assertion?

    I’m guessing the evidence is opinions like the one Dennis posted about upthread, which show that views may differ about the necessity of claim construction prior to 101 analysis.

  192. Dennis: “An important and arising issue is the interplay between claim construction and patentable subject matter. Under Federal Circuit precedent, claim construction appears to be a necessary precursor.”

    Given Rader’s opinion to the contrary when writing for the panel in Ultramercial, what is your evidence for this assertion?

    I suggested in another thread that it WAS in fact a necessary precursor, and that Rader was wrong in his opinion to the contrary.

  193. There’s a big difference between crying (“Does any other machine suffer the same exacting and ultra vires scrutiny of whine whine whine …?”) and noting a historical fact, sockie.

    But you’ll never admit that.

  194. MM: “It finds its “footing” in a series of bizarre, nonsensical, utterly result-driven decisions…

    MM: “BOO HOO HOO HOO HOOO!!!!!!

    W

    T

    F

    At least try to do your own crying in a different post than the one you make fun of others crying, lest you not only look a fool and a hypocrite, but prove that you are so.

  195. It is description enough. MM’s level of ignorance also does not define the level of description that must be in a patent application (Thank the Lord Above).

    Or do you also think that claims must enable the application as well?

  196. Add MM to the list of those who need to read and understand not only the law, but the MPEP 2173.05(g) and the case law discussed therein.

  197. OK, read Benson.

    OK, seriously?

    Your lack of understanding of how Benson has been changed with subsequent case law is a monumental testament to Mankind’s pig-headed refusal to understand.

    OK, read, and understand Diehr, Bilski, and the ensuing rewrites in Research Crop. and Ultramercial.

    Come back when you have understood what the law actually says.

  198. “it is programmed” tells you how it must be changed.

    No, it just tells us that it has been programmed. It does not tell us how the computer “must” be changed relative to another general purpose computer.

    According to your logic, the term “it is modified” arguably achieves the same thing for any other composition. According to your logic, sockie, all anyone has to do to satisfy 112 is claim a new functionality of the old composition, preceded by the term “it is modified.”

    Of course, you could argue that “computers are different.” And indeed they are. In part, that’s why Congress passed the DMCA. Of course, being a copyright troll is not nearly as much fun as being a patent troll.

  199. Ned should read that section of the MPEP and the associated case law as well, as he seems to think that only 112 p6 applies to functional claiming, and all functional claiming is completely ruled by 112 p6.

    Of course, he is wrong, but what else do you expect from Ned?

  200. “No, it just goes to show what a farce Research Corp was. Improper factual findings. Looking to other claims to see if instant claims are patentable. Ineptitude regarding the totality of the subject matter and claim construction. Ridiculous”

    BOO HOO HOO HOO HOOO!!!!!!

  201. “Your level of ignorance does not define the level of description that must be in a patent application.”

    Hahahahahaha

  202. “Well that’s fine so long as you tell us how it changed the machine. But in so far as you are unable to or decline to you’ll still be faced with people telling you to eat out at their arse.”

    So says the person who thought electrons would fall out of a wire if you tipped it on its end. hahahahahaha

    Of course, the answer to how the machine “must be” changed is MAGIC, which fits nicely into Arthur C. Clarke’s statement that “[a]ny sufficiently advanced technology is indistinguishable from magic.”

    You also seem to forget MPEP 2173.05(g) and the case law discussed therein.

    FYI — this isn’t a product by process claim. As such, your last paragraph was a waste of time.

  203. It is description enough. Your level of ignorance does not define the level of description that must be in a patent application (Thank the Lord Above).

  204. Does any other machine suffer the same exacting and ultra vires scrutiny of applying 101 to a “general purpose” version and making patent eligibility decisions from that scrutiny?

    BOO HOO HOO HOO HOOO!!!!!!

    Does any other machine (or composition of matter) enjoy the incredibly relaxed requirements under 112 and extraordinarily thoughtless examination under 102/103?

    Where does this “general purpose” anything find its footing?

    It finds its “footing” in a series of bizarre, nonsensical, utterly result-driven decisions that have had the effect over the years of allowing applicants to claim “new” computers/”readable media” in terms that are completely devoid of descriptions of structures that would distinguish the “new” computers/”readable media” from those in the prior art.

  205. Try reading – “it is programmed” tells you how it must be changed.

  206. “age old argument with age old refute: Answer as to how: “it is programmed””

    And an age old refute: That is not a description of how the machine is changed.

  207. desire to reframe the perspective to one of action misses the point that the machine must be changed in order for that action to be able to take place

    Point equally missed by 6 on his rush into the weeds.

  208. so long as you tell us how

    (sigh) – age old argument with age old refute: Answer as to how: “it is programmed”

    And no, this is not a product by process. That, in fact is quite the point in that many different types of ‘process” as you would use it can lead to the same “it is programmed.”

    Talk about diving into the weeds.

  209. “I respectfully suggest, joining a chorus of people who have likewise suggested, that programming a machine changes the machine.”

    Well that’s fine so long as you tell us how it changed the machine. But in so far as you are unable to or decline to you’ll still be faced with people telling you to eat out at their arse.

    “the point that the machine must be changed in order for that action to be able to take place.”

    That point is irrelevant if you cannot or decline to tell us how the machine “must be” changed in order for that action to be able to take place.

    Not only that, but if you’re intending to improperly use a product by process claim to claim such by neglecting that product by process claims are for products MADE BY the stated process as opposed to a product PERFORMING the stated process you’ll still have trouble. Even in a product by process claim the machine must be demonstrably structurally different, and the burden falls to the applicant to show such when confronted by the office with a machine it believes to fit the bill. Because we simply do not have the machinery to do your job for you and figure out how the machine “must be” different.

  210. I respectfully suggest, one more time, that a claim to an old machine performing a series of operations is not a new machine

    I respectfully suggest, joining a chorus of people who have likewise suggested, that programming a machine changes the machine.

    An unprogrammed machine cannot perform the series of operations. Your desire to reframe the perspective to one of action misses the point that the machine must be changed in order for that action to be able to take place. Therefore, you invoke a false premise into your position: the claim is not to an old machine.

    This is as the law stands.

  211. “However, the Supreme Court has regularly ignored details of claim language in making its determinations – focusing instead on what it saw as the invention. ”

    I would argue otherwise D. They do claim construction, but they also go beyond claim construction to see what it is precisely that the applicant is attempting to cordon off. As is wise and prudent.

    “That statement did not change the long-standing rule that each claim must be limited to patentable subject matter.”

    ^from the decision.

    No, it just goes to show what a farce Research Corp was. Improper factual findings. Looking to other claims to see if instant claims are patentable. Ineptitude regarding the totality of the subject matter and claim construction. Ridiculous.

  212. Les, it is a transformation, but what is transformed is the display. That is what make it physical and patentable. The tie to computer graphics is the key here.

  213. Basics, regarding your digression into the patentability of the programmed general purpose computer, I respectfully suggest, one more time, that a claim to an old machine performing a series of operations is not a new machine. It used to be well accepted law that one can not claim the operation of a machine. See for example Corning v. Burton. As far as I know, that well accepted and well-established Supreme Court case law has not been overturned.

    In contrast, a series of steps, physical steps, can be claimed as a process. The process claim is substantially independent of apparatus used to implement the process.

    I think because of all the controversy involving computers and software, that these simple principles have been blurred. Still, I believe what I am saying here is good law.

    In essence, the operation of a computer cannot be patented as a process or as a machine. One can claim a machine, but a general purpose computer is not new. One can claim a process, but the process must include more than just the operation of the computer.

  214. How is transforming data from data to updated data not a transformation?

    –updating data related to said regions in computer storage–

    When a claim recites transforming or reducing an article to a different state or thing), then the claims satisfies the requirements of §101.

    How is a byte of data say, not an article?

    Claim 24 clearly passes even the MOT.

  215. Basics, I reviewed the decision and found no argument that premised patentability on the preamble. Perhaps you can enlighten us where that argument took place. However, I do agree with you that the preamble here might be critical in determining that this claim is limited to a patentable process, and by that I mean that the data is actually used in a display.

    What I had in mind was this: a patentable process involving a display would take data from a source, perform some transformation on the data and then display the resulting data on a computer display device. The source can be a database stored on a computer storage medium for example. The display can be any computer display or television monitor. A process having a source and a destination both in the physical world should be patentable if the data is transformed by the calculations in the computer.

    But what if the claimed subject matter takes a portion of those calculations and improves them. So long as the claim fairly well ties the improved calculations to the overall process, I think the claim might be patent eligible. I do not think that a claim involving improved calculations has to itself call for the display of the resulting data. That data is only input to further calculations, which are eventually displayed. So viewed, improved calculations should be patentable so long as the preamble fairly well ties the claimed output into otherwise patent eligible process, a process that calls for the display of the data.

    I think that this claim comes very close, very close, and it may be patent eligible.

  216. Looking at the patent family in the EPO’s 591325 file, there is one patent in each country, except for the USA where there are three.

    The IPER and the EPO had no objection to the application on any of its 101, 102 or 103 provisions.

    Me, I think much of the disarray at the level of CAFC and SCOTUS arises from an uncomfortable feeling that if the US is refusing, as ineligible, stuff on which the PTO’s and patents courts of the ROW have no issue (especially stuff in the useful arts, and in software, where the USA prides itself as having an edge over the ROW) then something ain’t right.

  217. In a nod to (at?) IBP,

    The rule (the actual rule) on discerning whether a preamble is limiting or not is whether that preamble breathes necessary life into the claim (such is not always the case and therefore pushing one way or the other for a hard and fast rule is a fool’s errand – this is yet just another area that each application – and each claim – must be taken on its own merits, and that is Supreme Court lesson that keeps on being reinforced).

    Here, the preamble’s “reducing a step of visibility computations in 3-D computer graphics from a perspective of a viewpoint appears to do just that, notwithstanding the per curiam’s (and argued) position that there is indeed no “meaningful limitation.”

    The actual question here should be: Where is the line between a field of use limitation (nonsaving) and a meaningful limitation (saving)? The whole “field of use” doctrine is sketchy at best and needs some sound reasoning injected.

    The other item that needs to be put to rest is the whole “general purpose computer” line of reasoning. This is an aberration from all other 101 patentable subject matter discussions on improvements to fully eligible machines which are covered without question under patent law (the or any new and useful improvement thereof clause). Is not a “general purpose computer” different than a plow share? different from a bicycle?

    Does any other machine suffer the same exacting and ultra vires scrutiny of applying 101 to a “general purpose” version and making patent eligibility decisions from that scrutiny?

    Is there really a general purpose bicycle test that renders improvements to the general purpose bicycle not even elligible for patent consideration? Why this machine? What logical and legally supportable reasoning is there? How long must we continue to suffer this philosophical battle that has no place in the patent universe? Is a computer somehow more than just a machine? Really?

    Any “philosophical” battle boils down to just a simple question: Are improvements to machines patent eligible subject matter? Yes, or No.

    There is a need for some serious smoke clearing, dust settling step-backed view of why this fight has not died long ago. To paraphrase William Shatner, “I’d just like to say… get a life, will you people? I mean, for crying out loud, it’s just a machine!”

    Where does this “general purpose” anything find its footing?

  218. Indeed, but 101 still does tend to get readers going though, doesn’t it?

    I suppose AI will tell us that this is yet another “business method” case but, for me, it isn’t. And that is exactly why, to me, it’s worth running, even after so many other Dennis 101 threads.

    At least in this thread it is beyond dispute (I tentatively suggest) that this subject matter is within the “useful arts”.

    I wonder how the issued EPO claims read.

  219. Seems to me that this is clearly a technical solution to a technical problem that would therefore be patentable under European practice. Indeed, there is at least one corresponding, granted EP patent, with a ehat looks like a rather broader claim (EP0591325).
    It would strike me as very odd indeed if computer-related subject matter found patentable by the EPO was held to be ineligible in the USA.

  220. Gee, another 101 computer related storyline (feed that rumor that DC and MM are related).

    There is more to the patent world than this subject!

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