By Jason Rantanen
One of the ongoing debates involving the Federal Circuit revolves around its performance as a circuit court. Professors Craig Nard and John Duffy, for example, have critiqued the court's basic jurisdictional structure, arguing that court's exclusive jurisdiction fosters an insularity that produces "an isolated and sterile jurisprudence that is increasingly disconnected from the technological communities affected by patent law," and that the solution is to rewrite the court's jurisdiction. These and other arguments criticizing the Federal Circuit's performance are supported by the epithet that the Federal Circuit cites scholarship in its patent opinions at a far lower rate than other circuits do in their intellectual property opinions.
In The End of an Epithet? An Exploration of the Use of Legal Scholarship in Intellectual Property Decisions, recently published in the Houston Law Review, Professors Lee Petherbridge and David L. Schwartz examine this empirical claim about the Federal Circuit's use of scholarship by exploring the U.S. Supreme Court's use of legal scholarship in its patent, trademark, and copyright jurisprudence. They find a substantial difference in the use of scholarship across these areas, with the Court's use of legal scholarship in copyright and trademark decisions being among the highest observed and its use in patent decisions among the lowest. It thus appears that the Supreme Court behaves similar to the Federal Circuit with respect to the use of legal scholarship in patent cases, undercutting the empirical support for the claim that the Federal Circuit is insular. This finding adds to an earlier study by Schwartz and Petherbridge revealing that the Federal Circuit's overall rate of citation to scholarship is within the range of the regional circuits.
In addition to their empirical findings, Petherbridge and Schwartz address the question of why the use of legal scholarship in trademark and copyright jurisprudence is so high, and its use in patent jurisprudence so low. Their answers range from the doctrinal (patent law is more developed, so less need to reference scholarship) to this historical (until recently, perhaps there has just been a lot less patent law scholarship and beyond).
Read the article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2214025
This issue of the Houston Law Review is worth checking out generally. It includes terrific articles by R. Anthony Reese, Greg Vetter, Colleen Chien, Kevin Collins, Paul Janicke, Mark Patterson, and Katherine Strandburg.
Anon, no, what I really am doing is disputing your contention that a program must be in existence and loaded into program memory. A program does not "exist" in any "machine" sense except in program memory. That is when it becomes a program. What it is outside of the computer is – what?
No, you Seem to think that a program in computer memory must have preexisted someplace else before being loaded into memory. That is nonsense.
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I certainly am an expert as I have Actually programmed computers using input switches.
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You are conflating an active act of programming with a program.
Stop kicking up dust.
The statement is wrong for at least the reasons already given.
Yes, I am an expert.
I don’t need a case for the factual basis of what I say.
I have answered your questions. Now answer mine: will you be intellectually honest on this point (my post at 5:50 PM)?
Something to load into the computer? Obviously you don't know anything about computers. You do not need to have something to load into a computer. You can enter the computer program manually using switches and buttons.
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Why is the statement wrong? Are you an expert? Do you rely on a court definition?
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We all STILL await your stopping the dust-kicking.
“When it is loaded into a computer’s program memory, a program is physically part of the machine.”
Nice, but so what? That’s a non-sequitur Ned. You have to have SOMETHING to load into the machine.
This is exactly like the rivets, tires and bullets. Sitting alone and by themselves they are merely actionless components – and yet, every bit as patent eligible.
Software is simply a machine component.
It is equivalent to firmware and equivalent to hardware.
That is a simple and inescapable fact, no matter how hard you try to spin it, that fact will not go away.
Ever.
“a program describes a sequence of machine states.”
WRONG
“Describe” Ned – that is pure hornswaggle. You forgot about the whole functionally related aspect – you know, the item of controlling law that even Malcolm has freely admitted to that provides the exception to the printed matter doctrine.
Gut check time Ned – will you be intellectually honest concerning this point?
a program describes a sequence of machine states.
When it is loaded into a computer's program memory, a program is physically part of the machine.
When a program executes, the machine cycles from one machine state to another.
Still, what is software?
Ned,
Try again and look at my post of 10:14 PM – you missed a word:
I said: by that definition. That is, by your definition to which I was commenting.
C’mon Ned, at least try to hide your discussion derailment efforts just a little.
It is you who said, "By definition…"
We all await that definition.
It’s your definition at point in this post Ned (your 9:16 PM post).
You are back to kicking up dust again.
Why?
This is a familiar derailment point for you. Lets see your definition, Ned.
I can give you an easy one, but I know that you will not accept it.
"By definition?" Please give us that "definition."
Please define "software."
Thanks.
Please adjust your posts accordingly.
Yes
And yet, you remain silent as to this irrefutable situation. You offer nothing to counter this.
You do not because you cannot.
Still.
Comprises a machine state?
Please Ned, that’s not even close – by that definition, software cannot exist without a machine.
Please come back to this reality. Do not make the discussion derailment so painfully obvious.
Again, So is a computer program (aka software).
Everyone knows that hardware is equivalent to firmware is equivalent to software.
Nice dust-kicking Ned. That does not answer my question at 4:00 PM – do you agree with your hero and I?
It’s a yes or no question.
Again, a bullet is an article of manufacture.
a computer program comprises a machine state.
I think 282 is controlling law.
Still waiting Malcolm.
So is a computer program (aka software).
A bullet is itself an article of manufacture.
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It was a radical departure from precedent. The term radical was the term used be Rich's brethren.
Rich had a view that a claim that the courts had historically held to be ineligible provided an eligible use was disclosed.
The SC specifically disagreed and went further to exclude such claims where the use was set forth in the claim itself. See Benson.
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It’s not a problem – for most everything else outside the confines of the philosophically driven agenda seeking mutineers.
Do you see the same hue and cry over such other machine components as rivets, tires or bullets?
Now ask yourself “why not?” – the intellectually honest answer is directly tied to anthropomorphication. The problem is that computers really do not “think.”
They are just machines.
LOL – but do you agree with Frederico (and by extension, with me)?
Need I remind you that controlling law does not need the official imprimatur of the Supreme Court?
“Leopold shows (once again) that he is merely a hypocrite. His initial post was meant only to slam you 101 Integration Expert, and for all his worldly experience, he has failed in an attempt to best a non-lawyer in this particular area of law.”
Yes, anon I must agree here. I honestly had high hopes that LB would prove to be a better than MM but he is in fact much worse. To put it in his own words, LB was simply in this exchange, to ” simply pound the table and repeatedly mouth self-serving, intellectually bankrupt “analysis.” And then to simply cut and run.
Ned: “The problem with the Rich statement Was that there was no requirement that the subject matter be integrated into a machine at all.”
Rich evidently read the statute, ( which he was involved in creating) and did not see such a requirement. Why was that a problem?
Frederico also drafted 282.
He points out that the change was to align patentability and validity. 101 was excluded.
That was at least one reason Frederico said what he said about "invention" in 103 being the exclusive measure.
However, this issue has not been litigated and decided. But academics agree with Frederico.
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I am riveted by the tireless propaganda that a machine component MUST be integrated at all to be patent eligible. When the bullet of this notion is loaded into the gun of US jurisprudence, how many existing patents across any number of art fields will be gunned down?
It was (and is) the Supreme Court’s position as well.
Study carefully the language they use. Look to the authority they cite.
It was Frederico’s position as well.
I am riveted by the tireless propaganda that a machine component MUST be integrated into a machine (at all) in order to be patent eligible. When that bullet of an idea is finally loaded into the gun of patent jurisprudence, how many existing patents across various art fields will be shot down?
Anon, you keep saying that the ability of the courts to the ability of the court to construe patentable subject matter was revoked in 1952 with the addition of section 103. I see nothing in that statute says that Possible exception of section 282, which seems to exclude section 101 from validity.
I know that that was judge Rich's position. But that was his opinion only.
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The problem with the Rich statement Was that there was no requirement that the subject matter be integrated into a machine at all.
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MM:” Dennis doesn’t”
Hello MM:
Why do you ignore facts and evidence that discredit your assertions? Look, as previously pointed out to you many times, here is the latest article by Professor Dennis Crouch on his view of Integration. Now compare that to your view of dissection in which you ignore elements or steps in the concluding analysis. I see no support for your view in the article.
Please see:
Patents Encompassing a Human Organism
by Dennis Crouch
“Ex Parte Kamrava (PTAB 2012), APN 10/080,177 Download 10080177
Most Section 101 subject matter eligibility problems can be cured by integrating the ineligible subject matter with subject matter that is patent eligible. This works because the fact that an invention encompassing some ineligible material does not preclude patentability – as long as the invention also includes sufficient eligible subject matter. Following this theory, the Supreme Court in Diamond v. Diehr, 450 U.S. 175 (1981), agreed that a practical use of a mathematical formula was patentable.”
MM: “They don’t agree with you with or 101E. With respect to any putative restrictions Diehr ever put on looking at the novelty of individual claim elements in the course of a 101 analysis, they agree agree with the “lawless mutineers”, i.e., Professor Collins and myself: those restrictions no longer exist after Prometheus.”
Hello MM:
First, I believe you are creating what is called a straw man. Making an argument no one has made, so you can knock it down and declare victory. I do not recall saying what can or can’t be “looked at” when analyzing a claim.
You can “look at” and even “consider” anything you want. That is part of the analytical process. But it is what you conclude that matters. And what the Supreme Court has expressly forbade is “ignoring” elements in the concluding analysis. That’s called dissection and it is not allowed under Diehr, or Prometheus. To make sure people like you understood this the Court in Prometheus expressly stated:
” 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″
If your Professor Collins claims the Court did not make the above statement about “Integration” then the Professor is factually wrong. If your Professor Collins ignores the Courts use of “Integration” then any thesis he purports to advance, that so states “ignoring elements is allowed by the Court” is dishonest and Intellectually bankrupt. As far as Professor Crouch, he has most recently gone on record to support the view of Integration and not dissection.
It is only you that is saying what they believe Malcolm.
I am using your own logic against you – EVERYONE believes in me until they expressly post that they do not (and they must show the super double secret code in order to prevent fakes).
What’s the matter Malcolm? Don’t like it when other’s co-opt your third grade logic and use it to destroy you?
Feel the need to kick up dust with a completely off-tangent discussion?
Instead of trying so hard to “parody this S__t,” try to engage with some basic intellectual honesty.
LOL – Like that would ever happen (in the rare occurrences that it does, you end up burning down your dogma with self admitted understandings of controlling law and such – no wonder why you stick to the vitriol and avoid the substantive discussions. It’s more than painfully obvious why when this is brought to your attention all you can do is [shrug] and stand by.
“Do the steps add a novel or non-obvious feature?”
The problem – and a fundamental fact in its own right – is that this does not and cannot cover the law as it really is.
To wit: A fully patent eligible and legitimate claim can contain ONLY and ALL elements that lack “novel” and “non-obvious” features in and of themselves.
This single example destroys your pet theory, as you MUST be able to account for this particular FACT situation. An yet, you remain silent as to this irrefutable situation. You offer nothing to counter this.
You do not because you cannot.
in fact, everyone in the whole world agrees with everything I say.
Still waiting for you to provide a single example of a law firm that uses staff to screen registerered letters directed to its attorneys where upon the finding of a reference to prior art relating to a client’s patent application in the letter, the staff disposes of the letter so the attorney is “shielded” from learning of its contents.
Just one example, anon. Or find me a single other person on the planet who agrees with you. Maybe a law review article by a genius with similarly awesome ideas as yours? That would be nice. I’m especially curious as to how the firms deals with the malpractice liability and whether its insurance carrier is informed of the practice. Since bringing the scheme up, you’ve seen remarkably reluctant to discuss the details.
in fact, everyone in the whole world agrees with everything I say.
Professor Collins doesn’t. Dennis doesn’t. Jason doesn’t. LB doesnt. Ned doesn’t. MD doesn’t.
Not even Noonan and EG agree with you on the issue we’re discussing. For that matter, I’m quite sure that AAA JJ and Just Asking also disagree with you on this issue. Your beloved USPTO even disagrees with you, as I showed you above. Gene Quinn, too, I’m sure, also disagrees with you.
Except for 101E, you’re on an island all by your lonesome, anon. The rest of “lawless mutineers” have moved on and understand that what Collins wrote is correct. Indeed, to the extent it’s not prophetic, you might as well just call it what it is: the “actual law”.
“Echo chamber” is meant as a derogatory reference for two (or more) people agreeing with each other.
It is out of place in a discussion of those trying to engage in an exchange of ideas with “smart” people having a variety of backgrounds, training, and perspectives. Again, those who would wield the Crybaby’s Veto are those contributing most to low quality blogging.
Leopold shows (once again) that he is merely a hypocrite. His initial post was meant only to slam you 101 Integration Expert, and for all his worldly experience, he has failed in an attempt to best a non-lawyer in this particular area of law.
All of his arrows are aimed at one viewpoint. All of them land at his own feet. Maybe he can borrow that wonderful hammer of yours and pound those arrows into the ground so that he does not continuously trip over them.
It is quite dubious that you would skirt this opportunity to show true legal skill and foresight to in effect hide behind a technicality.
LOL. Impossible to parody this s–t.
The bogeyman of “it can be performed in the human mind” is used to obfuscate the reality that a machine does not have a mind.
Anthropomorphication runs amuck.
“I guarantee you a lot of judges and their clerks will be reading it”
reading comprehension FAIL
From Prof. Rantanen’s post: “why the use of legal scholarship in trademark and copyright jurisprudence is so high, and its use in patent jurisprudence so low.” (emphasis added).
There are obvious reasons why the patent use is low.
Academic patent articles are infected with a certain cloying bias. A high level of inbred cites leads to a circular motion that induces delusion and a detachment from reality. The “bogeyman” of patents is everywhere.
Couple this with the purposeful denigration of patents from Big Corp (for whom, other size-related market powers would be preferable), and you have what I posted long ago: attacks from both the Left and the Right.
Even people with English as a second language can understand this.
Ned Heller : “Yeah, sure. You claim a mathematical algorithm and disclose a computer for doing it. Rich says, who cares if it can be performed entirely in the mind? ”
Why wouldn’t an algorithm integrated in a software program, that is integrated in a digital computer, that is “integrated into a process as a whole be statutory subject matter?
After all, that is essentially the make up of the Diehr case, and as we all know that invention was statutory subject matter, and remains the case most on point.
MM “You should read Collins’ article. It’s good. I guarantee you a lot of judges and their clerks will be reading it. ”
I presume you read it then. So tell me this, did Collins reconcile Prometheus “Integration” with the Courts precedents?
Or did Collins just skip over that part. You know like you did and have run from for an entire year?
:: Silence::
LB: “Yeah, one of those is probably it. Enjoy your echo chamber!”
I do not know what “echo chamber” is supposed to mean.
Look, you said it was non sense to apply Integration Analysis to Ultramercials claim. After initially saying, “Give me a claim, 101IE, and I’ll be happy to oblige. I’ll even waive my customary fee.” You now say, it doesn’t make sense is view of Bilski.
But the Supreme Court GVRed Ultramercial in view of Prometheus Integration, not Bilski.
So my question to you, is if the Supreme Court believes it’s proper to apply “Integration Analysis” to Ultramercials claims, why don’t you agree?
Keep in mind I am not asking you to perform the analysis anymore. I know you are too afraid for that. I am simply asking why don’t agree with the Supreme Court?
Yeah, sure.
You claim a mathematical algorithm and disclose a computer for doing it. Rich says, who cares if it can be performed entirely in the mind?
Now that was indeed a radical shift from all prior precedent — all of it to the contrary. Where did he get his authority? None was cited. Was he a god? Or did he just have a god complex?
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anon: “You are ducking the 2:53 post as to which case was referenced in the GVR.”
Yes LB did duck this issue, just like he ducked applying “Integration Analysis” to Ultramercials claim. In that regard he is no better than MM, who cuts and runs.
LB: “It is not Office Policy to use Bilski’s MoT as the sole test for claims like Ultramercial’s.”
101 Integration Expert: Oh, is there another test? Please do tell. You already say we can’t use Integration Analysis, so that can’t be your answer.
LB: So let me get this straight – the USPTO Memo in view of Prometheus proves that “Integration Analysis” is the bomb.
101 Integration Expert: No. What the Office Guidance on Integration, in view of Prometheus demonstrates, among other things, is that various dissection theories in which you strip away and ignore elements in the concluding analysis are incorrect. It also serves as basic guidelines for Examiners to apply “Integration Analysis” to claims. However the guidance should be taken into consideration along with Prometheus’ instructions, and Diehr’s claims as a whole and no dissection mandates.
LB: but it’s perfectly OK to ignore everything that the this memo says about the limited applicability of integration analysis.
The memo has no authority to limit Integration Analysis. Nor does it say anything about the application of Integration Analysis being limited. That authority rest with the Court.
As previously explained to you, what the guidance does is essentially instruct Office Personnel to wait on the out come of cases before the CAFC, namely Ultramercial, before using Integration for claims different from the type in Mayo v Prometheus.
I really don’t see what you intend to accomplish with all this dust kicking about the MoT. We ( The Patent Community and Courts) already had this debate . It’s over. The new frontier is “Integration”.
Deal with it.
“Haven’t seen anyone but you actually say they agree with Collins.”
Outside of the little circle, still haven’t.
“They are free to disagree with me and I’m quite sure that they would if they felt I was misrepresenting their views.”
LOL – Are you in third grade again?
Let’s do the “everyone agrees with me and if they don’t they can say so” B$.
Point in fact – you said people agreed and I asked you to point out hte specific timestaqmps.
YOU CANNOT – you are (yet again) caught in a blatant lie.
Nice job.
And by the way, in fact, everyone in the whole world agrees with everything I say.TM
So now we have it – only those that EXPLICITLY come to this thread and post (of course, to avoid fakes, they also have to post and provide the double-secret keyword) to disagree with me, OBVIOUSLY fully, completely, and forever agree with me.
Gee, what’s wrong with that logic?
You quite miss the point of this whole thread Malcolm – there is a serious disconnect between the “Academic Intelligentsia” and reality.
In fact, everyone in the whole world agrees with everything I say.TM
anon: all of this could be simply handled by simply stating that no matter how a claim reads, a person performing a claim entirely in their head cannot be found to be infringing.
What is “all of this”? Who does this “simply stating”? Do they provide any reasoning or do they just “simply state it”, like you just did. Do you believe that it is axiomatic that a mental process can not be found infringing? Is it an evidentiary issue? A First Amendment issue?
Rich was not only right
In fact, he was quite wrong, which is why the Supreme Court just drove a 9-wheeled cement truck over his corpse. You should read Collins’ article. It’s good. I guarantee you a lot of judges and their clerks will be reading it. Those people don’t care at all about your “simple statements”.
Malcolm you have still failed to provide the date stamps of these so-called everyone agreeing with you and/or Collins.
They are free to disagree with me and I’m quite sure that they would if they felt I was misrepresenting their views. They’ve expressed their views before on this subject. They don’t agree with you with or 101E. With respect to any putative restrictions Diehr ever put on looking at the novelty of individual claim elements in the course of a 101 analysis, they agree agree with the “lawless mutineers”, i.e., Professor Collins and myself: those restrictions no longer exist after Prometheus.
The only people who disagree are you and 101E. And the best part about that is you are going to get served over and over and over. Speaking of which, with respect to the USPTO’s guidelines, take a good look at them:
slide 20: – The “judicial exceptions” to eligibility are typically identified as
abstract ideas (e.g., mental processes)
Yup. As I’ve been saying. As Collins said. Then check out slide 40 which lists “hints” about when additional steps might render a claim eligible, in spite of the presence of a judicial exception in the claim.
slide 40: Do the steps add a novel or non-obvious feature?
Just like I’ve been saying for years. Just like Professor Collins says. Just like Dennis said when he first wrote about the Prometheus decision. Just like Jason said long before the Supreme Court decision was decided. Everybody agrees about this simple, fundamental fact … except for you and your WonderTwin, 101E (formerly “Actual Inventerd”). Do let us know when you come to your senses.
“with the time-honored judicial practice of resolving important questions of law on a case-by-case basis”
The ability of the courts to define “invention” through a common law mechanism was revoked by the 1952 Act and “invention” was replaced by “non-obviousness” and 103.
The courts – as exemplified here by the dissenter in Musgrave – could not break their patent pie addiction.
LOL – talk about QQ’ing and using less then dicta from a dissent to bolster your own agenda…
Jealousy over a man who helped write law – who intimately knew what that law meant – and then was a judge who interpreted that which he knew is so transparent in your posts.
Yes – the 1952 Act WAS a radical shift in this area of law.
Yes – machines that APPEAR to cover things previously covered bythe mental steps doctrine was (and obviously still is) a scary concept for certain people.
GET OVER IT.
Stop with the anthropomorphications – machines are not people. They do not think. They are not to be confused with mental steps.
Stop the scare tactics. Stop the medieval patent voodoo in some insipid attempt to restore a mental steps doctrine.
Rich was not only right – and all of this could be simply handled by simply stating that no matter how a claim reads, a person performing a claim entirely in their head cannot be found to be infringing.
I really liked how Collins compared the compared the ’51 CCPA Abrams (mental steps) case to Prometheus, saying they were the exact same case, separated by 60 years, but not separated in result. Both cases involved conventional data gathering steps and a wherein clause that expressed a truism defined by nature.
Collins noted the demise of the mental steps doctrine, ending in Musgrave, a case authored by Rich and roundly condemned by the dissent in that case. We discussed that case here before and just how bad it was.
Rich said in Musgrave,
“We cannot agree with the board that these claims (all the steps of which can be carried out by the disclosed apparatus) are directed to non-statutory processes merely because some or all the steps therein can also be carried out in or with the aid of the human mind or because it may be necessary for one performing the processes to think. All that is necessary, in our view, to make a sequence of operational steps a statutory “process” within 35 U.S.C. § 101 is that it be in the technological arts so as to be in consonance with the Constitutional purpose to promote the progress of “useful arts.” Const. Art. 1, sec. 8.”
Now that is exactly the position of NWPA, and perhaps others here.
It is good to also read what the dissent in Musgrave said about Rich,
“I feel compelled to speak out against the majority opinion. It is my position that the doctrine promulgated by that opinion, which constitutes a major and radical shift in this area of the law, is a serious breach with the time-honored judicial practice of resolving important questions of law on a case-by-case basis.”
Now, what have I been saying about the Rich era and about the problem of the Federal Circuit as a whole. Rich and his fellows write large on small canvsases. The act like gods who are so self important that they can simply declare what the law is like a legislature. They are not judges who decide the cases before them. They do not seek justice in the particular case. They are the opposite of that. They care more about their egos than about anything else.
The Rich era may be the worst in judicial history in this or any other court. We really need to consider reforming the Federal Circuit in some fashion so that panels simply do not have the power to declare law like gods.
Still waiting Malcolm.
… or is it that you are the nail here and are being hammered….?
LOL, maybe someone with English as a first language can explain why Leopold loses in this discussion.
By the way, have you seen my lovely red cape, Leopold?
You are ducking the 2:53 post as to which case was referenced in the GVR.
It’s a nice hammer and not everything is a nail – but you certainly (and rightfully) are being nailed here.
“lain why he or Dennis or Jason or I or Ned or LB”
Outside the little circle (for obvious reasons), Malcolm you have still failed to provide the date stamps of these so-called everyone agreeing with you and/or Collins.
Still waiting for that, mind you.
I am referring to the Office Policy to use Bilski’s MoT as the sole test for claims like Ultramercials.
You are still mistaken, my friend. It is not Office Policy to use Bilski’s MoT as the sole test for claims like Ultramercial’s. The instruction in the USPTO memo on Integration points to guidelines that are based on the Supreme Court’s holding in Bilski. Those guidelines most definitely do not promote the MoT test as the sole test for abstractness.
So let me get this straight – the USPTO Memo in view of Prometheus proves that “Integration Analysis” is the bomb, but it’s perfectly OK to ignore everything that the this memo says about the limited applicability of integration analysis and about the use of the Bilski guidelines to analyze claims under Section 101?
You’ve got a really nice hammer (integration analysis), 101 IE. However, that doesn’t mean that every claim is a nail.
those who present the law as it actually is
Like Professor Collins, who you smeared as a “lawless mutineer,” but refused to explain why he or Dennis or Jason or I or Ned or LB are deserving of the epithet, at least with respect to our understanding and appreciation of the accuracy of the Collins quote upthread. Here it is again:
By adopting and defending the bracket-and-distinguish analysis in Prometheus Laboratories —
the functional equivalent of a point-of-
novelty analysis — the Supreme Court has in effect, if not in express language, repudiated its earlier position in Diehr, undermined the CAFC’s position on the mental steps doctrine, and cleared the way for the doctrine’s revival.
Lawless mutineering? Nope. Just plain old rock solid reasoning.
But keep fighting it, anon. As I’ve said before, there’s much more of this to come. And you’re not going to like it.
101 Integration Expert: “And yes, just skip the virtually meaningless policy that says use Bilski. As we know that does not apply to us here on this blog, and has no force of law in the real world either.”
LB: Bilski has no force of law in the real world?
101 Integration Expert: That’s not what I said. I am referring to the Office Policy to use Bilski’s MoT as the sole test for claims like Ultramercials. This was your excuse for ducking the challenge to apply “Integration Anaysis” to Ultramercials claims, remember?
LB: “I think you are mistaken, my friend – we’re talking about the Supreme Court’s decision in Bilski, not the CAFC’s. Bilski”
101 Integration Expert: And the supreme Court in Bilski said the CAFC’s Bilski MoT test was not the sole test. So there is nothing to debate here. Don’t kick up dust my friend.
LB: “The Supreme Court’s GVR in Ultramercial doesn’t even begin to suggest otherwise.”
101 Integration Expert: The fact that the GVR was in view of Prometheus and not Bilski, suggest the analysis in Prometheus is most on point. Which of course takes us right back to where you fear to tread, “Integration Analysis”.
“Enjoy your echo chamber!”
Coming from someone who is the echo chamber of Malcolm, your posts have an ironic sense of humor, but you are probably not aware of that, are you Leopold?
LB: I already explained my thoughts on the Ultramercial claim above, with respect to whether it is an abstract idea.
101 Integration Expert: Yes, you have. But that was not the challenge you so boldly decided to take on is it? But as I have already made clear, you have every right to not accept the challenge, or to quit for what ever reason you want. So the nightmare is over for you.
LB: I don’t think anon has performed any public integration analysis yet – why don’t you ask him to give it a try?
101 Integration Expert: Anon is not the one that said “Give me a claim, 101IE, and I’ll be happy to oblige. I’ll even waive my customary fee.”
You LB, Leopold Bloom, said that!
Apparently you were NOT “so happy to oblige” as you once so boldly declared
But look, it’s over.
You chose NOT to take the challenge.
You failed.
You wilted.
You took the chicken exit.
And there is no shame in any of the above. Just stop making excuses already. And leave anon out of it. As anon is not the blame, or responsible for any of your choices.
“why don’t you ask him to give it a try?”
Asked and answered – why do I need to try something I agree with? I’m not the one trying to say that the official view of the USPTO on how to apply the lessons learned from Prometheus is anything different than what they are (by the way, thanks again for the first gloriouslink Malcolm).
For some unknown reason Leopold, you think that those who want changes in law need not provide any backing, and that those who present the law as it actually is must provide some type of analysis.
Why is that? Why are you constantly shooting arrows at the wrong targets?
But apparently this is beyond your abilities, or perhaps you simply have no interest in as you say “engaging in an exchange of ideas with smart people having a variety of backgrounds, training, and perspectives”.
Yeah, one of those is probably it. Enjoy your echo chamber!
anon: “Here’s a guarantee:Not one of the little circle will take you up on the challenge.”
As anyone can see from the exchange with LB, you are 100% right.
LB: “Well sure, I could make up anything I want, based on a single use of the word “integration” in Prometheus,”
101 Integration Expert: No, you are not free to make up anything you want. The Court in Prometheus used “integration” in a very specific legal context, and referenced it to Diehr. As we now know it was not just an inconsequential use of a word, and therefore can’t be evaluated as such.
If you engage in “Integration Analysis” pro or con, I would fully expect you to be able to elaborate and show your reasoning and rationale, based on evidence from the Court and it’s precedents, as well as other pertinent sources.
In other words you will be required to put your intellect on display and be judged by what you say and write.
But apparently this is beyond your abilities, or perhaps you simply have no interest in as you say “engaging in an exchange of ideas with smart people having a variety of backgrounds, training, and perspectives” Either way you sure kicked up a lot of dust for nothing.
And yes, just skip the virtually meaningless policy that says use Bilski. As we know that does not apply to us here on this blog, and has no force of law in the real world either.
Bilski has no force of law in the real world? I think you are mistaken, my friend – we’re talking about the Supreme Court’s decision in Bilski, not the CAFC’s. Bilski and the USPTO’s guidance on applying Bilski are both much more relevant to the Ultramercial claims than the USPTO’s guidance on “integration analysis.” The Supreme Court’s GVR in Ultramercial doesn’t even begin to suggest otherwise.
LB: “Whose analysis of the Ultramercial claim is truer to the USPTO’s guidance on “integration analysis,” mine or 101 IE’s?”
Yes, it’s true, the USPTO’s guidance instructs you to not apply “Integration Analysis” to claims such as Ultramercial, and therefore you did not.
So you win on the great debate to the answer of your question.
But you lose by default in the challenge to apply “Integration Analysis” to Ultramercials Claim.
In the end you have accomplished no more than when you accepted the challenge.
But such is not our situation. And therefore we are not bound by Office policy. We are free on this blog to apply “Integration Analysis” to any claims we so chose, including, Ultramercials.
Well sure, I could make up anything I want, based on a single use of the word “integration” in Prometheus, in a discussion of claim directed to the use of a mathematical equation, which the Court said was “like a law of nature.” But then you and your friend anon will accuse me of dishonesty, l^ying, misrepresenting the law, and so on. Thank you, but no.
I already explained my thoughts on the Ultramercial claim above, with respect to whether it is an abstract idea. If I were to force that same analysis into an artificial “Integration Analysis” form, I wouldn’t expect the reasoning or the conclusion to be much different.
I don’t expect this to satisfy you, but it’s the best I can do. I don’t think anon has performed any public integration analysis yet – why don’t you ask him to give it a try?