En Banc Arguments This Week

by Dennis Crouch

On February 8, 2013 (this Friday), the Federal Circuit will sit en banc and hear arguments on two important patent cases. In CLS Bank v. Alice Corp the court will focus on the patenting of inventions implemented through software. The two particular questions highlighted in the en banc order are:

a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?; and

b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

In addition to the parties, the Federal Circuit has also granted leave for the USPTO to participate at oral arguments. The USPTO’s brief focused on practical mechanisms for the process of determining § 101 eligibility. The agency wrote “the essential question under § 101 is whether the claim, properly construed, incorporates enough meaningful limitations to ensure that it amounts to more than a claim for the abstract idea itself . . . This Court should identify a non-exhaustive list of factors for district courts and examiners to consider in resolving that essential question on a case-by-case basis.”

The second patent case (argued first on the 8th) is that of Robert Bosch v. Pylon Mfg. In Bosch, the court is focusing on the “final judgment rule” that limits a losing party’s right to appeal until the district court judgment is finalized. Particularly, 28 U.S.C. § 1292(c)(2)  indicates that the Federal Circuit has jurisdiction over patent appeals once the case is “final except for an accounting.  The basic question on appeal is: Define “an accounting.”  The en banc order asks two particular questions:

a) Does 28 U.S.C. § 1292(c)(2) confer jurisdiction on this Court to entertain appeals from patent infringement liability determinations when a trial on damages has not yet occurred?

b) Does 28 U.S.C. § 1292(c)(2) confer jurisdiction on this Court to entertain appeals from patent infringement liability determinations when willfulness issues are outstanding and remain undecided?

In its brief of the case, the U.S. Government argued that “accounting” encompasses the damage award. As such, the Government argues that appeal is appropriate once liability is determined. 

At the Supreme Court, oral argument in Bowman v. Monsanto (patent exhaustion doctrine) is scheduled for February 19; and FTC v. Watson (reverse payment settlements) is scheduled for March 25. Arguments for Association for Molecular Pathology v. Myriad Genetics, Inc.
have not yet been scheduled.

409 thoughts on “En Banc Arguments This Week

  1. 409

    I did read that post – but did not want to assume that PSA was the same as Post Solution Activity.

    It is not safe to make assumptions when you are busy spinning.

  2. 408

    Obfuscation, my dear anon, like beauty, is in the mind of the beholder.

    That is truly some bizarre and sickly twisted spin Ned.

    I see that indeed, like BF, actually adhering to intellectual honesty is not something that you yourself are willing to be held to.

  3. 406

    Obfuscation, my dear anon, like beauty, is in the mind of the beholder.

    I think the real question with ineligible subject matter appearing in the claim is whether it is integrated into the claim in a way that modifies the result in a patentable meaning functional manner to produce a new result or whether the ineligible subject matter is purely explanatory of some physical elements that are independently patentable.

  4. 404

    Let’s say the claim is to a player piano where the only thing new is music.

    ARRRGGGGGGHHHHHHH.

    Ned – stop with the canard of trying to inject non-useful arts into the discussion with the double canard of “only thing new” – your attempt to sneak in once again a point of novelty discussion.

    These are not only strawmen, and a weak ones at that, but they obfuscate the issues under discussion and serve no legitimate purpose whatsoever. They are intellectually bankrupt.

    STOP.

  5. 403

    If.

    If it is modified to comply with section 112, then I would agree that it's also pass section 101.

    But in some cases they may not. Let's say the claim is to a player piano where the only thing new is music. The specification describes how to build a player piano and how to use. But that much is old…

    I think we had a similar situation in Prometheus. The claim describes old and new. The specification can describe in detail how to make or perform the old elements. But does the claim comply with section 112 when a new element itself is ineligible and not applied in any way that is different in kind from the past?

    It is difficult I think to come up with universal tests that apply clearly in all situations.

  6. 401

    Insignificant? 
     
    Good point, and Stevens point  as well.  
     
    I think the PSA has to be modified in a non trivial way.   But the courts are not clear on what that is.

     
    Sent from Windows Mail
     

  7. 399

    You mean the claim was invalid because it didn’t recite insignificant post solution activity of applying to the alarm limit to the alarm?

  8. 398

    I have to listen to it again because it seems like all they did was argue the system claims, and the methods claims were just assumed to be abstract because, well, they are method claims.

    Since when did system/machines claims become in fact “more” patent eligible subject matter than machine claims?

    I thought all the categories were equal. :-/

  9. 397

    If the claim were rewritten to comply with 112 I submit that there would be no 101 issue — in other words, it should have just been invalidated under 112 (at least if it were litigated today)

  10. 396

    In in sense it is both.  It tells us we cannot patent principles in the abstract like we cannot patent laws of nature.  It adds anther reason why — 112.    Two statutory bases, not one.

     
    Sent from Windows Mail
     

  11. 395

    So, if pea brained deep throated “judge” gets its way, then that means all intelligence methods (since they could be performed by a paper and pencil) and by a general purpose computer (that is the Church Turing Thesis and pea brain must be performing some method), that all of these methods are inelgible for patentability.

    So, a method to perform the duties of a fed. cir. pea brain deep throated “judge” (enabled) would be ineligble under pea brain test.

    R. Stern figure that out. I challenge you to argue with me about the above.

  12. 394

    The deep throated judge apparently doesn’t know the Church Turing Thesis. If the computer is just an adding machine, guess what, it is capable of performing every method that all intelligence is using including what goes on inside your pea brain.

  13. 392

    “Heuristically solving a problem with applied math is not an abstract solution.”

    So true! That’s a fact that will be lost on many anti software folks. Can you post a link to the oral arguments? I would like to listen for myself.

    Thanks!

  14. 390

    You know, I just listened to the oral arguments. What strikes me about this is that there isn’t really any difference between mechanical applications and information processing applications.

    There is always some idea behind the mechanical application. And, some very specific embodiment that we disclose. And, we claim far more than we disclose, but not more than is enabled by anyone skilled in the art could build knowing now the one embodiment and the idea or basic concept of what we are up to.

    Just no difference and I write application to large machines and to information processing and computer architecture (all for the top corporations in the world.)

    Ergo this is a witch hunt. Benson is ridiculous. A mathematical equation is not an abstract concept for one. Heuristically solving a problem with applied math is not an abstract solution.

  15. 389

    Thank you Anon.

    An excellent lesson not only for non lawyers but,
    for lawyers and Judges, and Patent Examiners as well.

  16. 388

    You celebrate one step too early 101 Integration Expert.

    For even a claim fully integrated must still pass ALL of the judicial exceptions to patent eligibility.

    What you have done is successfully rebut the false theory that mental steps cannot have patentable weight as a step in a valid and eligible method patent (and to once again curtail the strawmen – that would be a method patent not entirely performed in one’s mind).

    For a non-lawyer, you have done exceptionally well.

    But all you have done is accomplish what is equivalent to the “as a category” view. You must still overcome the equivalent “at the claim level” view.

    It may help you to understand this by remembering that the process category is on equal footing with the other categories of patent eligible subject matter.

    Equal.

    And less we forget, even the other categories are subject to the judicial exceptions. Yes, a machine is subject to the judicial exceptions. Yes, a product is subject to the judicial exceptions. So, too, is a process.

    One of the great fallacies being expounded is that somehow the process category MUST be treated differently (I have shown one cause of this: the Justice Story bias). For an example of such a fallacy, the law of nature exception as displayed in Prometheus is claimed to have no analogous judicial exception lesson for the non-process categories of patentable subject matter.

    This of course we both know to be simply untrue.

    That analogous judicial exception is the product of nature exception. So, like the very fact that man CAN build a product that does not in fact guarantee that that product is patent eligible – even as it fully falls to one of the legislated categories, man can also devise a process that it too – even as that process falls to one of the legislated categories, does not in fact guarantee that that particular process is patent eligible.

    Machines can fail the eligibility hurdle.
    Products can fail the eligibility hurdle.
    Processes can fail the eligibility hurdle.

    Integration is still a great victory. But it is not a final victory. Something can be truly integrated, that is a whole that combines or coordinates separate elements so as to provide a harmonious, interrelated whole; or is a whole that is organized or structured so that constituent units function cooperatively and yet that whole may still fail one of the other judicial exceptions. For a far-flung example, a human so fully and completely synthesized
    so as to be indistinguishable from (or even effectively indistinguishable from) that which nature provides is not patent eligible – no matter how technically awe-inspiring (or expensive) that accomplishment would be. On a simpler level, man’s ability to manufacture the exact replica of, oh, say, a DNA strand, does not make that manufacture patent eligible if that manufacture is not different in kind from the product of nature – again, no matter how technically awe-inspiring (or expensive) that accomplishment would be.

    This too, leads to why the MoT, or rather, the over-reliance on the MoT is guaranteed to fail. It stems from treating the process category not as an equal. And not realizing that even as an equal, the judicial exceptions are applied at the claim level.

  17. 387

    IANAE “LOL, lucky Mr. Bilski.”

    Lame IANAE to counter with a red herring.

    This discussion is about the MoT being reversed as the sole test. Just so happens Bilski claimed disembodied math and under no legal analysis or test could he have gotten his patent. But that had nothing to do with whether the MoT was definitive or not. So put that rotten red herring butt back in the can it came from.

    And like it was explained to you in Mayo, “integration” is the proper analysis. Which the Court was compelled to so stated because cult thinkers like yourself just refused to believe that Elvis and the MoT was really, really dead.

    As far as the PTO, they now have ZERO legal authority to use the MoT as the sole test to reject an applicants claims. They can use the MoT as a clue to help affirm statutory subject matter and that is about it, but not as a definitive test, and not ever to reject!

    So if the PTO is using MoT as the sole test to reject as you claim then the PTO is committing a gross violation of the law and yes the Applicant that claims statutory subject matter, ( not one of the implicit exceptions) has a reverse slam dunk case for appeal and will win! If not at the Board for sure at the Supreme Court of the United States of America!!

    You lose.

    We Win.

    We ALWAYS win!

  18. 385

    Ned, and you want me to defer to your view of case law, when you post in such egregious error?

    He said the whole court shared the view about the MOT. The others did not say otherwise.

    You don’t know how to read case law – at least how to read fully and accurately.

    You cannot ignore the very words the Justice uses.

    Breyer – in perspective:

    The proper citation from Breyer is:“ it is MY view that…”

    Even joined by Scalia, that is merely the voice of two – not even rising to dicta.

    We’ve been on this merry-go-round before.

    You cannot ignore the FACT that a Justice signs up to what another Justice says in a concurring opinion by affirmative action – only Scalia did so.

    You do not read case law “in the absence” and say everyone agreed with a concurring opinion because they were silent. If a concurrence or dissent says something clearly incorrect, like “since 6 has been President of the United States for the past twenty years” and no one writes to say “that’s not so” clearly the absence of such written disagreement cannot be taken as an affirmative agreement. You do not read case law in that manner.

    We have been on this merry-go-round before Ned – You were wrong before. You are still wrong.

  19. 384

    Yes, I do. It’s called confidence earned.

    Do you have a substantive reply? Is there a point I have made that you can find fault with (in a substantive manner)? Is there ANY point in law that I am not correct about (and please, no strawmen)?

    AS I have said, EVERY SINGLE THING I have posted on this topic is accurate. You are welcome to have a different opinion – anyone can have an opinion. And you are welcome to be wrong according to how the law really is (you always have the right to be wrong). Just don’t expect me to go along with that wrong reasoning, or sit idly by and let an errant opinion go unchallenged.

  20. 381

    Still looking for that one, MF? According to you, it’s at the top of your High Priority list. Funny then you seem unable to find it or find am answer to an easy question to test your commitment to intellectual honesty:

    Would a reasonable person (obviously not your view) consider you to be a member of the legal academia?

    Please don’t make me chase you around for a week (or more).

  21. 380

    “they didn’t articulate any replacement test,”

    “Integration”

    See my post Feb 08, 2013 at 05:13 PM

    ::Game Over::

  22. 379

    So, I like the way you dim wits say things like so 1+1 is patent eligible. Duh. So, putting two sticks together is patent eligible. So, putting two atoms together is patent eligible. So, putting two pieces of flexible glass is patent eligible.

    Just sad that you dopes won’t address the substance of the arguments and instead resort to 3rd grade tactics.

    You do live in a different world—a sick muddy one that you wallow in.

  23. 378

    Breyer – in perspective:

    The proper citation from Breyer is:“ it is my view that…

    Even joined by Scalia, that is merely the voice of two – not even rising to dicta.

    We’ve been on this merry-go-round before.

  24. 376

    Trust you when it comes to understanding SC decisions?

    Respectfully – No.

    For several reasons:
    – I have shown you to be in error way too many times.
    – You have not earned trust (due to third party posting tactics)
    – You are quite simply wrong in every argument you have posted on this thread. Either wrong in fact, in law, or in arguing strawmen that no one else is arguing.

    I, on the other hand, have been 100% correct in EVERY SINGLE THING I have posted here.

    Pretend to know? NO. I do know.
    Not tell you? Please – I have been crystal clear.

    101 – Ned – C’mon man, look at how the Supremes reference the authority they find: IMPLICIT – does that sound like something “laid out in the statute?

    Trust me on this – I know this way better than you.

  25. 375

    MM: “all claims with mental steps are not eligible. The presence of a “novel” mental step in a claim which otherwise recites only an old conventional step is a good indicator that the claim is ineligible.”

    Wrong.

    Such claims are patent eligible when integrated.

    Why?

    See my post at Feb 08, 2013 at 05:13 PM.

    The argument that can’t be defeated!

  26. 374

    Ned,

    Whether the hardware was new or not was not the point, had nothing to do with the point.

    Again, please stop trying to morph what I say.

  27. 373

    Ned,

    Please do not engage in strawman building that you have been advised now at least four times.

    It is beneath you to engage in such intellectual dishonesty.

  28. 371

    anon: “You also forgot (but no one else has, as it is archived here) that the USPTO also does not believe in your bogus theory. Quite in fact, they believe in 101 Integration Expert’s integration doctrine. You were even the very first person to post a link to that massive self-defeat of yours. That’s archived too. Perhaps even on Sam Hill.”

    Hello anon:

    This is 101 Integration Expert. You are exactly right anon. Integration is an important legal doctrine when it comes to patent subject matter eligibility. First of all we have a Supreme Court Justice writing a 9-0 majority opinion in which it is explicitly explained that the reason claims are statutory subject matter is because the claims are “integrated”.

    And more importantly the case being described is not just a case but “the” case most on point for what “is” statutory subject matter and controlling case law.

    See Justice Breyer writing:

    ( In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps
    transformed the process into an inventive application of the formula. ) [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)

    Now, in the same controlling case law from Diehr the Court writes:

    ““([u]nless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary, common meaning.”) [Diehr, supra, at 182.]

    When one checks the dictionary definition for the ordinary, contemporary, common meaning of “integrated” it says:

    “in·te·grat·ed [in-ti-grey-tid] Show IPA adjective:

    1.combining or coordinating separate elements so as to provide a harmonious, interrelated whole:

    2.organized or structured so that constituent units function cooperatively”

    Hence we know:

    That which is “integrated” is not abstract

    That which is “integrated” is a process

    That which is “integrated” is structured.

    And to extrapolate to the subject at hand , software and computers as “integrated circuits” is defined in the same dictionary as:

    “integrated circuit noun Electronics.
    a circuit of transistors, resistors, and capacitors constructed on a single semiconductor wafer or chip, in which the components are interconnected to perform a given function. Abbreviation: IC”

    Is this not an article of manufacture or a machine?

    Does it not function as a process?

    Therefore when the question is asked, is software integrated with a computer statutory subject matter? There can only be one answer.

    And that answer is an unequivocal, yes!

    So the anti patent and anti software opponents particularly fear the “doctrine of integration” because they have no weapons to form against it.

    They must ignore what they can’t defeat, thus MM obvious silence. And the awkward avoidance of the very issue by the likes of 6, Leopold Bloom, now LB, IANAE, and even Ned Heller. ( yes I am calling you all out by name!) Although Ned does try to dishonestly spin “integration” to be the Machine or Transformation test.

    I therefore encourage all my brethren fighting to maintain the integrity of our patent system, especially when it comes to software, to use “integration” as the bedrock of your defense.

    That software running on a computer is inherently “integrated” is “the” legal argument and doctrine that can’t be defeated.

  29. 370

    Les, if mental steps are process steps, you could patent 1 + 1 = 2 as performed by man.

    Now think.

    How do you make 1 + 1 = 2?

    What physical thing is produced by 1 + 1 = 2?

    Do you even need a specification on how to make and use 1 + 1 = 2?

    Why don't you simply state the equation in a claim?

    I hope you can begin to see the problem.

  30. 369

    anon, you pretend to know, but you studioiusly do not tell us what that is.

    Trust me, the SC is not going to have a claim as a whole test for 101 different from the test laid out in the statute.

  31. 366

    MM, as Breyer noted, the Supreme Court was unanimous that the MOT was a valuable test. They simply did not want to exclude the possibility that subject matter that failed the test could be excluded.

    Then we learned from Prometheus, that the test really invovles not just transformations, but new transformations. (You were ahead of the curve on that one, Malcolm.)

  32. 365

    “if a computer-implemented method recites only old steps” … then it is unpatentable under 102/103.

  33. 364

    Les, "Is the claimed item a list of steps? Tada, its a process. MOVE ON to 102 and 103."

    Well that certainly was THE argument in Bilski to the Supreme Court. But, the problem is that if mental steps qualified as process steps, a claim could validly issue on wholely mental process. Ditto if the only new step was the final step as in Prometheus. Or where the new step was mental and provided no new functionality, i.e., it was not integrated to produce somethine new as in Diehr.

    The rule you advocate was the position of Rich. It has been rejected, time and again. But it is also a cat that has nine lives.

  34. 361

    Bilski: MoT not necessary.

    That would have been the holding in Bilski, had the Supremes allowed the claims.

    Sane people understand that “fails MOT, fails 101” is not a data point for “MOT not necessary”. Until you have a claim that fails MOT but passes 101, you have no authority for a holding of “MOT not necessary”.

  35. 360

    But anon understands:

    What I want to understand:

    Let’s start with an easy question to test your commitment to intellectual honesty – Would a reasonable person (obviously not your view) consider you to be a member of the legal academia?

    Please don’t make me chase you around for a week (or more).

  36. 359

    Later on, Prometheus passed MOT

    You are still having trouble with the big picture, IANAE.

    Bilski: MoT not necessary.
    Prometheus: MoT not sufficient.

    THE clue –> ‘a’ clue –> a less important clue (and definitely not a test).

    Lucky for you, some of us don’t mind holding your hand, and we are helpful – even to @$$es.

  37. 357

    you were the one who insisted that an applicant losing a case could never be a victory for the patent community, weren’t you?

    Yup.

    The Supremes decided that MOT isn’t the test, but it’s basically the test, they didn’t articulate any replacement test, and Bilski’s claims that failed the test also failed 101. That whole “MOT isn’t really the test” thing is what we call “dicta”. Because it wasn’t necessary to reach the end result. And MOT is still the best test we have. And the PTO still uses it. And it hasn’t given a false negative yet.

    Plus, Bilski is apparent authority that a claim can be rejected or invalidated under 101 “just because”.

    Later on, Prometheus passed MOT and failed 101. Despite a presumption of validity. Shame it’s not “the test” anymore, but at least in Prometheus it’s finally a holding. Big help for patentees, that.

  38. 356

    MF,

    Let’s start with an easy question to test your commitment to intellectual honesty:

    Would a reasonable person (obviously not your view) consider you to be a member of the legal academia?

    Please don’t make me chase you around for a week (or more).

  39. 354

    since the universe was probably a few seconds old.

    i.e., a bit more than 6,000 years ago if you live in Texas, where they just luuuuuuurv them some software patents!

    “Arbitrary” is definitely not the word you want

    Humpty Dumpty has spoken! Your head will be returned to you when Humpty has finished amusing himself with it. Bow down!!!

  40. 353

    MF,

    Let’s start with an easy question to test your commitment to intellectual honesty:

    Would a reasonable person (obviously not your view) consider you to be a member of the legal academia?

    Please don’t make me chase you around for a week (or more).

  41. 352

    LOL – like IANAE knows anything about rope…

    Oh wait, he is also th eone that thinks he makes a point by not saying anything.

    I would ask you how that is working for you IANAE, but I am certain that you are clueless.

  42. 351

    LOL, lucky Mr. Bilski.

    LOL right back, you were the one who insisted that an applicant losing a case could never be a victory for the patent community, weren’t you?

    This awareness of legal implications thing is a bit over your head, IANAE, isn’t it?

  43. 350

    You do realize (I hope better than the non-lawyer 101 Integration Expert) that “judgment affirmed” and “a rationale for judgment denied” have some very real and different legal implications, right IANAE?

    Once again – missing the smart.

    You would think that you would catch on to this problem of yours by now…

  44. 349

    Not because of the MoT.

    LOL, lucky Mr. Bilski.

    I can imagine his lawyer reporting the decision. “Congratulations, it was a slam dunk reversal. No, the decision didn’t get reversed. No, you didn’t get your patent. No, the Supreme Court actually used the word ‘affirmed’. But I’m going to recommend to all my clients that they keep appealing everything till they lose for this particular reason. It’s basically a sure thing!”

    Actually, that sounds kinda familiar.

  45. 347

    “The judgment of the Court of Appeals is affirmed.”

    Not because of the MoT.

    ::Case Closed::

  46. 346

    NSII: Physicality is shown by the fundamental nature of information that it cannot be destroyed. Plus, by your own statements there is a physicality to the representation of the information in the medium of choice.

    The space, time, and energy illustrates that it takes this to make a transformation.

    So, we have a fundamental property of physics that is being changed from state 1 to state 2. There is a physicality to the change. The transformation requires space, time, and energy.

    That meets all the criteria of a transformation and is a transformation.

  47. 345

    Now you are just asserting that information processing is patentable under your definition of “fundamental change” and transformation. Your analogy to a chemical process assumes what you were trying to prove. No matter how many times you assert your chemical bond analogy, it doesn’t transform it from a bare assertion to a useful analogy. Physicality may not be a requirement for patentability, but chemical bonds have it and information does not. Disregarding this fundamental distinction doesn’t make it go away.

    I have no idea what you are trying to show by “time, space, and energy”, since those aren’t conditions of patentability. Anyway, as I understand your argument, calculating 1+1 meets those requirements, which I suppose you consider to be patentable subject matter. “1+1” is information that can be transformed to “2” or “II” or “3-1”, etc.

    I agree that I lose, but it has nothing to do with the content of my posts. We live in different realities apparently.

  48. 344

    NSII: Information is abstract and its physical representation is arbitrary.

    anon: “Arbitrary” is definitely not the word you want, as an “arbitrary” configuration indicates a random and unorganized configuration, the very opposite of what it takes.

    NSII: Random is not the same as arbitrary. The choice of rolling a red die vs. a blue die is arbitrary, but the outcome of whatever die you roll is random.

    /LB, deeply appreciative of anon’s tireless efforts to promote clarity and understanding, grabs popcorn and eagerly awaits substantive response./

  49. 343

    Ned: “Read it.”

    First, please show “relevance” to the argument you are making, along with the citations to current law from the brief, that support what you are asserting.

    Thank You.

  50. 342

    Random is not the same as arbitrary. The choice of rolling a red die vs. a blue die is arbitrary, but the outcome of whatever die you roll is random.

  51. 341

    “Just like Bilski got reversed on appeal, right?”

    Right. By the Supreme Court of the United States of America, 9-0.

    Any questions?

    Yes, actually. How come the Supreme Court judgment ends with the words “The judgment of the Court of Appeals is affirmed.”?

    I realize you’re not a practicing patent agent, but there’s a big difference between “you have a slam dunk reversal on appeal” and “you’ll easily get the appellate court to rephrase your rejection”.

  52. 339

    In contrast, a chemical bond is specific and distinct from other chemical bonds.

    Actually the precise nature of a chemical bond is anything but distinct. Such involves the identical properties of physics, and has since the universe was probably a few seconds old.

    and its physical representation is arbitrary.

    LOL – keep that in mind the next time you attempt to configure your machine to engage in a particular task. “Arbitrary” is definitely not the word you want, as an “arbitrary” configuration indicates a random and unorganized configuration, the very opposite of what it takes.

  53. 337

    “Just like Bilski got reversed on appeal, right?”

    Right. By the Supreme Court of the United States of America, 9-0.

    Any questions?

    I am here to help

  54. 336

    NSII: How the information is represented does not change the argument, and the differences with chemical bonds does not change the argument either. No matter how the information is represented it is being transformed. That transformation is a fundamental change in ever sense of a new chemical bond being formed. The transformation of the information takes time, space, and energy.

    Sorry but you lose. Funny, isn’t it. No matter how your crowd tries to squirm its way around reality it always comes back to bite you.

  55. 335

    Ned, It’s quite clear that IANAE thinks people can only discuss those things IANAE thinks are appropriate. Please don’t let IANAE tell you what conversations to have and which not to have.

  56. 334

    This is unrelated to your first comment because now you are talking about the physical changes that represent information in a computer, which in some cases is merely the temporal location of charge. At least, this is the theory previously adopted by the Federal Circuit. Although weak, this is a slightly better “physics”-based argument.

    The problem with this argument is that information, as used by a computer, is not limited to a particular physical embodiment. A computer-implemented method is the same regardless of whether magnetic media, flash memory, DRAM, or any other type of information storage medium that exists or will ever be invented is used. Information is abstract and its physical representation is arbitrary.

    In contrast, a chemical bond is specific and distinct from other chemical bonds. A method of making a chemical requires specific ingredients that are not arbitrary and generally not interchangeable. Both the inputs and outputs of chemical process are necessarily tangible.

  57. 333

    IANAE: I am not going to bite and spend a lot of time explaining information to you. You spent at most 9 minutes considering that webpage. That was a jump point for you. Information theory is complicated and a vast subject.

    Information processing methods transform information just as your silly little atoms are transformed by bonding with other atoms.

  58. 332

    I cited a very specific and well-accepted fundamental principle of physics

    You cited that very specific and well-accepted fundamental principle incorrectly and in a very un-accepted context, once again in an attempt to be a smart-@$$.

    And once again, you missed the smart.

    You really shold rethink your tactics. They are in fact not working out too well for you (unless of course, looking like a buffoon is what you consider “working out well for you”).

  59. 331

    Webster’s defines

    Ned, it’s quite clear that Les has no interest in thinking about what all these terms mean in a patent law context, or having a discussion that is remotely relevant to the state of the law on the concepts they represent.

    I don’t understand why you insist on playing “NO U!” with these three clowns. And under your real name, no less.

    Please, please stop helping. Give them the rope they need, and walk away.

  60. 330

    Well you can start here:

    LOL, and you call me an ineffective troll?

    Okay, black holes aren’t well understood. So that makes information processing patentable? It’s not even about the same kind of information.

    For your next trick, try citing the twin paradox to get out of filing a terminal disclaimer.

  61. 329

    I do not see myself as witty.

    And most of the time, you would be correct. It’s ironic then, that this time, with your purposeful and focused choices of different words, you do actually display some wit.

    Perhaps you should apply that same care to legal principles.

  62. 328

    Rather than focusing on the trees of using words right, MD, you should first note the forest of getting the law right.

    It does you absolutely no good to say something legally nonsensical with perfect grammar.

    And quite on the other hand, this is a blog and minor things like typos and imperfect use of words (especially when the context is clear) is perfectly acceptable. Even more especially when the forests of legal nonsense are ablaze (and Leopold is trying so hard not to pick up his quiver).

  63. 327

    “101, the courts will also consistently held a mental steps are not process steps. A method that involves manipulation of mathematical representations of value, quantity, price, risk, and the like are not process steps.”

    Yes, the courts may have so held. However, the courts are clearly wrong. Mental steps are a process. That ‘swhy we have phrases such as “thought process” and why Webster’s defines thought as the process of thinking:cogitating.

  64. 326

    NSII: sure they are related. Because what it illustrates is that something is being done by transforming information in a computer memory. Just as something is being done by new chemical bonds being formed.

  65. 325

    That’s not what I asked Ned – you are at it again, trying to morph and twist.

    I will not stand for it. Let me repeat the question: You do know that claim as a whole is not limited to 103, right Ned?

    We both know that a “claim as a whole analysis” is in 101, per the Supreme Court and its implicit reading.

    Unless of course, you are (again) mutinying against the Supreme Court. Are you doing that again Ned?

    Ned, you are boxed in by what the law is and my knowledge of what the law is. There is no escape.

  66. 323

    D_@mm those SC Activist justices, twisting the patent nose of wax in order to arrive at their desired holding.

    (and we did not even have to venture into the oops of claim 8 and the disection of the shift register – which of course spawned the 101 Claims as a Whole retaliation in Diehr)

  67. 321

    Would that were the case LB. I do not see myself as witty. But words are the tools of our trade as patent attorneys, and so I like to see them used right. This morning I just happened to be on a roll, that’s awl.

  68. 320

    Nice smokescreen IANAE – you forgot the little MF circle.

    And as for people who agree with me, well, that’s a mighty big circle, as anyone who understand law de facto agrees with me.

    You missed having those Calvinball spikes to the face, didn’t you?

  69. 319

    MF,

    Let’s start with an easy question to test your commitment to intellectual honesty:

    Would a reasonable person (obviously not your view) consider you to be a member of the legal academia?

    Please don’t make me chase you around for a week (or more).

  70. 316

    I get that you believe information processing to be patentable, but please to don’t mash together unrelated concepts. Information processing, as that term is commonly understood has nothing to do with the “law of conservation of information,” which has not been widely accepted. Moreover, information itself is far from a fundamental principle of physics.

  71. 314

    Please do better.

    I’ll rephrase.

    You alluded to a “fundamental law of the conservation of information”, a “fundamental principle of physics”. You didn’t say what physics principle that was.

    I cited a very specific and well-accepted fundamental principle of physics that says information is not conserved. I then asked you what principle you were talking about. Instead of sharing your alleged physics knowledge, you started shouting “troll”.

    One more try. What fundamental principle of physics is responsible for the conservation of information?

  72. 312

    No one outside of your little cirle has ever agreed with you.

    Apart from the people who agree with you, nobody agrees with you.

  73. 309

    You amaze me MM. So, a machine driving a car isn’t worthy of being patent eligible. I suppose no type of information processing is. So, what we do and hold so dear–think–isn’t worthy of patent eligibility.

  74. 308

    Ned – You are retreating again. Please review the thread and see that I set the stage for our discussion appropriately by noting that claims completely to mental steps was NOT what we were discussing. I have mentioned this now at least three times.

    You are trying to create a strawman – very dangerous given your ember-like condition.

  75. 307

    we have yet to see

    Um, you do understand how law works right?

    When all nine Justices say that MoT is not a test, but only a clue, you do not get to re-charactize MoT as the test that was just overruled.

    That’s called a blatant lie.

    MoT: neither necessary nor sufficient.

    Try to keep your “characterizations” from being ones that give a false or misleading appearance to; or conceal the truth or real nature of the actual item.

    btw:
    dis·sem·ble
    dih-sem-buhl
    verb (used with object)
    1. to give a false or misleading appearance to; conceal the truth or real nature of

    MM legal academia member FAIL

  76. 306

    The information processing that drives cars

    “New” methods of driving a car using a POWERFUL COMPUTER BRAIN will be all the rage for years to come, you can bet on that. And they’ll all be j-nk.

  77. 305

    Les is the ultimate patent t–b–gger. He’s the kind of the guy that gives “reasonable” people like Gene Quinn and Kevin Noonan nightmares at night.

    But anon understands: you have to appease the “base”.

  78. 303

    I think the MOT is a viable test which, when properly applied, will tell us whether the claim is eligible.

    It’s certainly an excellent clue, especially when the transformation is a new physical transformation of matter. In the wake of the development of the MoT test, we have yet to see a claim that fails the test survive a successful challenge to its eligibility in court.

  79. 302

    You wanted to SHIFT the conversation to the printed matter doctrine (e.g., Ngai).

    Uh … no. I simply wanted to remind you that your assertion (“All limitations must be given patentable weight”) was false.

    That’s when you started digging. Let me know when you get to China, “haha”.

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