Apple’s European Multi-Touch Patent Revived by the English Court of Appeals

By Dennis Crouch

HTC v. Apple, [2013] EWCA Civ 451 (Court of Appeals of England and Wales 2013)

In a Judgment by Lord Justice Kitchen, the English court of appeals has offered a decision in favor of Apple’s European Patents covering its multi-touch keyboard. See European Patent Nos. 2 098 948 and 1 964 022.

The patents cover technical data-flow solutions to for multi-touch keyboard devices and the lower court held that those claims lacked patent eligibility under Article 52 (2)(c) of the European Patent Convention which indicates that “[t]he following in particular shall not be regarded as inventions … programs for computers.” On appeal, the court reversed that decision — finding that the invention solves a sufficiently technical problem and therefore is patent eligible:

The problem which the patent addresses, namely how to deal with multiple simultaneous touches on one of the new multi-touch devices, is essentially technical, just as were the problems of how to communicate more effectively between programs and files held in different processors within a known network which lay at the heart of the decision in IBM Corporation/Data processing network, and how to provide a visual indication about events occurring in the input/output device of a text processor which lay at the heart of the decision in IBM Corporation/Computer related invention.

In this process, the court focused on what the invention contributed to the art as a “matter of practical reality” rather than focusing on the invention’s relation to computer software. The court went on to hold that a patentable contribution does not become unpatentable simply because a computer program is used to implement that contribution.

In the end, Apple’s claim 2 of its ‘948 patent still stands (claim 1 was obvious as were claims 5 and 17 of the ‘022 patent). The ‘948 claims at issue read as follows:

1. A method for handling touch events at a multi-touch device, comprising:

displaying one or more views;

executing one or more software elements, each software element being associated with a particular view;

associating a multi-touch flag or an exclusive touch flag with each view;

receiving one or more touches at the one or more views; and

selectively sending one or more touch events, each touch event describing a received touch, to one or more of the software elements associated with the one or more views at which a touch was received based on the values of the multi-touch and exclusive touch flags.

2. The method of claim 1, further comprising:

if a multi-touch flag is associated with a particular view, allowing other touch events contemporaneous with a touch event received at the particular view to be sent to software elements associated with the other views.

In his opinion, Lord Justice Lewison described his disappointment in the lack of clarity in the law.

It is, to me at least, regrettable that because these apparently simple words have no clear meaning both our courts and the Technical Boards of Appeal at the EPO have stopped even trying to understand them. However we are so far down that road that “returning were as tedious as go o’er”. Instead we are now engaged on a search for a “technical contribution” or a “technical effect”. Instead of arguing about what the legislation means, we argue about what the gloss means. We do not even know whether these substitute phrases mean the same thing. . . .

So the upshot is that we now ignore the words “computer program … as such” and instead concentrate on whether there is a technical contribution. It is, if I may say so, a singularly unhelpful test because the interaction between hardware and software in a computer is inherently “technical” in the ordinary sense of the word. If I buy a software package that malfunctions the software house will often offer me “technical support”. But that is clearly not enough for the software to qualify as making a “technical contribution”.

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

144 thoughts on “Apple’s European Multi-Touch Patent Revived by the English Court of Appeals

  1. The party may have removed him – but not for altruistic reasons. Politicians are pragmatic. Even the ‘good’ ones. That is their job. The party system we have guarantees that we have the same crp from both parties.

    That is yet another reason why those who insist on posting politics here should stop. I merely point out this article to high light the hypocrisy (as if any more high lighting was actually needed) of those who post the most politics.

    We both know the two parties I am referring to.

  2. anon, but the player piano with music was discussed in Alappat. This is why, I think, Rich carefully limited his discussion of a programmed computer substituted for the claimed circuits to the output data being used for a display. The claim did not stop at the data.

  3. anon, with Nixon, the party removed him.

    I was listening to the Sunday shows. It does appear that liberal Democrats are outraged. Let’s see if the O-man cooperates or stonewalls.

  4. Ned why can’t it be right?

    Suppose you are in the cow milk supply industry and you find out that music with a particular rhythm played to the cows stimulates them to produce more milk.

    Or you are in the business of cultivating orchids, and music with a specific beat serves to stimulate their growth.

    Or you are a doctor and you find that broken bones heal more quickly when they are subject to music (more random than monotone pitch) with a specific beat.

    Your patent application clearly defines and enables the claimed subject matter, and the technical effect is supported by good evidence.

    Why is your Invention not eligible and patentable?

  5. No Ned – you never gave the example of music. Quite in fact, you perpetually attempted to misuse the example of music and I for one perpetually chided you for such misuse.

    There is a fundamental flaw here, alright – but it is in your attempting a strawman that neither Rader nor RIch would use, as nether has ever attempted to incorporate the non-useful arts into an argument as you so do.

    I call B$ on your intellectual dishonesty here.

  6. No Ned – you are missing the big picture.

    The critical year was 1952. What did Congress intend in THAT year? How did the Court skirt that intention and keep their fingers in the patent pie?

    Go back and re-read the Prometheus decision. Pay careful attention to exactly what the Court is refusing to let become ‘dead letters’

      (hint: it is not 101 or the jurisprudence of 101 – it is the Judicial Exceptions of 101).

    This is a critical distinction. The Court has chosen its words extremely carefully dancing around this authority it has granted to itself. It is my humble opinion that this self-anointed power exceeds the interpretation of law and fully lands in the writing of law. After 1952 (the critical date of removal of authority), this type of law making MUST be deemed unconstitutional in itself.

    There is a serious separation of powers issue here, and it is that undercurrent that drives the nose of wax of 101 to be so hideously disfigured. Law purists who see this must be sickened.

    I think your ‘theories regarding both basis – newness (expressly denied in Prometheus) and utility are poorly supported. The manipulation of an abstract idea can be (not “is,” or “must be”), VERY MUCH within the useful arts. Quite in fact, the utility is the very driver of the desire to capture that with a patent. Your position here is not defensible. It is nothing more than a smokescreen for the true issue: the fingers in the pie. But no matter how much smoke is billowed, how much dust is kicked up, the fingers are stained.

  7. If you are trying to make the Republicans out as in any way different, or as sants – I am not buying it Ned.

  8. Anon, at least in my memory if a Republican abuses power, his own party will not support him. When it became clear that Nixon was guilty as charged, the Republican leadership of the Senate went to Nixon and told him he had to resign. He did.

    Then there was some issue about Sarah Palin abusing power while she was governor. I think many Republicans were and still are concerned.

    I look forward to Democratic leadership getting behind a proper investigation of this admitted the abuse of power by the IRS.

  9. Anon, Judge Rader’s emphasis on the word “any” is intended to reject the notion that there are any categorical exclusions. Even points to the revisions the section 100 to support his proposition.

    But the critical question is not 1952, but perhaps 1870, or perhaps even 1836, or perhaps even 1793, or perhaps 1790, wherever the word “any” was introduced. What the Congress intend.

    I would agree that new process, machine, article, or composition that has utility within the useful arts is patentable subject matter. Thus the exclusions must be be based upon the lack of utility or the lack of newness. I do not think that the exclusion is based upon lack of invention, because if the claimed subject matter is in one of the four classes, is new, and has utility, it is an invention, provided it is also nonobvious.

    I believe the basis for exclusion of laws of nature and natural phenomena rests upon lack of newness as opposed to the lack of utility. One cannot really withdraw from the public domain subject matter that is already in the public domain. Laws of nature, even if discovered, are in the public domain.

    But abstract ideas – the manipulation of abstract concepts? I think the legal basis for this may be in the lack of utility. The manipulation of an abstract idea is hardly within the useful arts.

  10. Anon, both Rader in rich operate under the presumption that there are no categorical exclusions. I gave you the example of music. If the novel feature in a claim to a new article of manufacture was music, both Rader and Rich would say that the claim was patentable. But this cannot be right, and because it cannot be right there is something fundamentally flawed in their analysis.

  11. Interesting too that those who insist on injecting political views into this forum are notoriously quiet about this:

    link to news.yahoo.com

    (and for the record, this is not anti-democrat, as I am sure the Republicans are no saints about targeting their opponents)

  12. As far as your continued insistence on blaming Rich and Radar – stop your obvious agenda-pandering.

    They are the ones that have (consistently) gotten things right.

  13. If the prior cases concerning patentable subject matter were based on “101,” Congress did not intend overruled them.

    Ned – you are ignoring (on purpose?) the real effect of the 1952 statute that I have shared with you: the removal of power of the Court to define ‘invention’ based on the use of common law. Congress revoked the Court authority. That is EXPRESSLY why all 101 decisions after 1952 use the very exacting and peculiar language that they do. That is why the Highest Court finds its authority in the implicit words of 101 (as opposed to any other part of the statute). You ignore also the very words of the 9-0 Prometheus case and you CONTINUE to push for a view that the the Supreme Court has expressly said “NO” to.

    You continue to ignore and (thus) conflate that the issue here is (strictly) 101. Stop kicking up dust.

    See my other posts regarding blame and what to do about this.

  14. A few comments:

    Newman got it right about Morse. The actual holding of invalidity was premised upon undue breath. This now, of course, is a section 112 concept.

    Judge Rader agrees that section 282 does not include section 101 among the listed grounds for invalidity, which he now labels statutory invalidity. He then seems to label holding patents invalid under section 101 as nonstatutory. He didn’t seem to understand, I think, the full implications of this statutory construction because the Supreme Court believes it has statutory authorization to hold patents invalid under section 101. If the Supreme Court could be persuaded that section 101 is not a condition of patentability, they may revise the thinking and simply stop invalidating patents on section 101 basis. Obviously, litigators should pay attention.

    The weakness in Judge Rader’s opinion and remarks is that does not seem to understand that section 101 is really a recodifications of earlier statutes without change. He places great emphasis on the word “any.” However, its predecessor that also included the word “any.” All Congress was doing in 1952 was re-codifying section 101 from its earlier versions. Congress did not intend to overrule any prior cases based upon that statute. If the prior cases concerning patentable subject matter were based on “101,” Congress did not intend overruled them.

    Judge Rader further opined that the prior cases on ineligible subject matter were heavily linked to the word “invention” in the predecessors of section 101. He believes that the enactment of section 103 was intended to eliminate all section 101 inquiries into “invention.” Thus if a claimed invention falls in to one of the four statutory classes, and the subject matter claimed is novel, the only remaining inquiry is whether it is obvious.

    This assumes that there is no subject matter that is ineligible regardless of whether or not it is obvious. Thus if all subject matter is patentable in the sense that there is no subject matter ineligible, the statutory framework he proposes, and his predecessor Judge Rich proposed, works.

    Thus if there is no subject matter which is categorically ineligible, then music , just as an example, would be patentable subject matter. A claim, framed within the four classes, that departed from the prior art because of music would be eligible. Assume someone invented a new musical style, take minimalism for an example. A claim to a CD-ROM encoded with minimalist music might be patentable subject matter under Judge Rader’s thinking.

    Obviously there is something wrong with this which implies there something wrong with judge Rader’s formula.

    This implies that there is subject matter which is categorically ineligible. The list includes laws of nature, phenomena of nature and abstract ideas. Claims, normally within the four classes, but which substantially claim any of these excluded subject matters, are claiming subject matter that the Supreme Court has decided is not eligible for patenting.

    But then one must ask another question, why are these listed the exclusions ineligible? Clearly, laws of nature and mathematics are useful in a technological sense, while music and subject matter like music are not. If one discovers that hot air thrown into a blast furnace improves the process, why can’t one simply claim throwing hot air into a blast furnace as a process? I don’t see the problem. One has to recall that O’Reilly v. Morse was decided on the basis of undue breath and not on the basis of some categorical exclusion.

    The manipulation of abstract ideas such as mathematics, and things like risk, not fairly confined to a machine, are not really the subject matter of patents in the first place because one cannot make a mathematical algorithm. One cannot build risk. One, however, can build a computer programmed with a mathematical algorithm. So the question must be asked, and apparently has been asked in this case, why is a programmed computer not eligible for patenting even if that program only manipulates abstract ideas?

    Obviously the question is not easily answered, and the Federal Circuit split 50-50 on this question.

  15. It is worth making the point that:

    (a) four patents were granted to Apple in relation to their smartphone technology including e.g. the swipe to switch on feature we all know from our I-phones; a

    (b) At first instance one patent was held to relate to non-eligible subject-matter, and the other three were held to relate to eligible subject-matter;

    (c) On appeal the decision about the non-eligible subject matter was reversed.

    So the EPO score on patent eligibility for these patents is 100%.

    On unobviousness the EPO score is not so good, but that is of course on a different record form that before the EPO examiners.

  16. Can we move the goal posts back from “assertion of clarity” to “topic of discussion?”

    I guess your direct comments on the “American Music Business” and the (American) “Wall Street” make it hard for you to defend your initial position. Hard? Well, actually impossible.

    And yet, (of course), this is not how you see it.

    Your sight, though, is notorious for its (errant) selectiveness. After all, you never do want actual conversation or actual challenges, do you?

    Lovely soapbox MaxDrei.

  17. birss, in his decision seemed to say that whether by uk or epc law, halliburton was a valid patent so i don’t understand what you mean.

    i feel his decision hinged on his error in believing that a design of a drill bit is concrete! he is wrong. a design of something is abstract. in saying that i mean that the meaning of a design (ie something that is abstract) remains the same irrespective of the form that it takes, whether on paper, on a computer monitor, as bits in the memory of a computer or simply as a thought.

    i’ll have a look for that ic patent.

  18. NWPA, you there? What say you to this assertion from anon that he brought clarity to the discussion up above that we were having, that started with my 09:03 AM posting?

    Not how I see it. You?

  19. Yes, so we are headed for the SCOTUS. Let’s just hope that Obama doesn’t get to put any justice department attorney on the supreme court in the mean time.

  20. Ultimately, what this opinion is is another step towards third world country. We have judges that have just become legislators. The consequence is going to be a lot of people who stop caring about the law. And, generations of judges and attorneys will stop at nothing to get what they want.

    Lourie you have shamed our profession.

  21. No MaxDrei, the discussion I insert myself into is a comparison with US law.

    See my post at 10:38 AM for this important clarification.

  22. Where in the EPC do we find reference to “useful arts”. The discussion into which you insert yourself is about the terms of the EPC. Why then do you assail me with talk of useful arts.

    But apart from that, where is “useful arts” defined in such a way as to exclude, say, such music as has an evidenced therapeutic effect?

  23. But MaxDrei – it’s still lame because music is not part of the useful arts. That’s why it’s a strawman.

    This has been covered many many many many times now.

  24. (yes Alun, I know that – that’s part of the fun that I poke MaxDrei with)

    I think he’s on his 41st anniversary of 6 months’ experience.

  25. but anon, we’re talking the Music Business, more, the American Music Business. How much is that worth? More than Wall Street’s Business? Almost as much? How much creativity needs protecting. If they don’t get patents on their innovation it’s the end, isn’t it? in ten years we’ll all be listening to Chinese Music, no?

    The engraved coffee mug, that presents new and clever information is just a handy tool for debating where the bright line lies, between patentable non-obviousness and not patentable non-obviousness.

  26. bob I don’t know who you are but you strike me as pleasingly well-informed.

    There was an EPO case about designing an IC. The direct product of the claimed method was a design of an IC, not an IC as such. But the EPO Board found it patentable. I’m not EE but as far as I know, that’s a case right on the borderline.

    Colin Birss is a good bloke, a good European, but he has to do (English Binding Precedent) what his superiors command, in the English Federal Circuit and SCOTUK. Those guys are recalcitrant; they have not yet tuned in the the EPO way of handling patentability.

  27. The odd thing is that stare decisis actually applies in England to decisions of the Enlarged Board of Appeals

  28. Ah, but England DOEs have stare decisis (although it’s called precedent, i.e. from French, not Latin)

  29. So J. Rader in a single opinion in 1994 (his sixth year on the court) single handedly opened the door to patenting information and abstractions?

    He did a lot of the “leg work”. That’s a foundational opinion, as you are probably aware.

    Of course, we now have the privilege of reading Judge Rader’s “reflections” on his greatest ever contribution to software patent eligibility. I’m guessing we won’t see much remorse.

  30. bob – think about the difference between maths (even “clever” maths) and applied math.

    Not all ‘maths’ are equal.

  31. Anon, thanks. I realise I have to learn what the meaning of “directed towards” and “per se” and “as such” mean in the context of patent law. I was hoping to elicit a nugget or two to help me.

    Max, my paraphrasing of 52(3) is that the items in these categories are excluded only if a claim relates to the item in and of itself. If there is more to it, ie a technical effect, then the item is not excluded.

    I’ve created a transcombobulator – it is a machine which moves Bob from one state, or position, to another – which has in it a program which uses E=mc^2 to calculate the energy required to move Bob and a couple of other well known formulae to calculate the co-ordinates of the new position to which he can be moved. The program will run on a general purpose computer to displayed the energy required and the co-ordinates on a monitor. When run in my machine the video cable is not connected to a monitor but to an difference sort of interface and the machine will move Bob.

    I have 2 applications, the first claiming the program with the general purpose computer, the other is my full transcombobulator.

    My first application should, I think, be unpatentable. It’s just a mathematical calculation which accepts the inertial mass of Bob and distance and direction to move him. My claims have explained what I’m doing and how to do it. No different from a mathematical calculation of tax liability really. Take some inputs, output some text to a monitor. I could, given the time, do both calculations in my head – given the time.

    The second application should be ok, because the software program claims within the application are directed to a technical effect which is more than just the “normal” effect of a program running on a computer.

    After looking at some patents, such as Halliburton which, to me, aligns UKIPO with EPO, I am confused at how these patents are being allowed.

    Halliburton has a computer program which produces a drill bit design based upon the inputs it is given. Yet apparently this is has a “technical” effect beyond the normal physical interation between program and computer. Apparently it is more than just a computer program as such. I disagree. It’s a bit of maths – clever maths I grant – but all it does is produce a design. It doesn’t produce the drill bit. Its effect is to perform some mathematical methods then to present information.

    This is my problem. I cannot reconcile this type of patent with what the law says. I know, I’m not a lawyer so I haven’t had the training, but can you explain better than Judge Birss did in this decision?

  32. The main point here is that the law has a built-in conflict between 52(2) which defines what, inter alia, is not an invention (the list is in principle not exhaustive and a positive definition is not provided in the EPC) and 52(3) that specifies that patentability can be negated only to the extent to which the application or patent relates to 52(2) subject – matter as such.

    If the EPC drafters wanted to exclude any kind of program for computer, they could have introduced them as an exception to patentability under Art. 53 EPC, which says “European patents shall not be granted in respect of […]”. On the contrary, the legislator introduced this interplay between 52(2) and 52(3), that the courts (first and foremost the EPO Boards of Appeal) had to solve in some way.

    The criticism levelled at the framework devised by the EPO Boards often neglects the fact that programs for computer are only one of the exclusions of Art. 52(2). The “technical or not” approach works very well, in my opinion, for all the other exclusions of the list, and has effectively prevented some patents that are “poster children” of anti-patent movements to be issued in Europe.

    However, the approach does not translate equally well in the case of “programs for computers” since excluding them would require a very weird definition of “technical” – which the Board have so far refused to provide. The EPO answer to this was to fudge the “technical or not” approach by requiring that for computer programs a “further” technical effect was needed beyond the normal physical effects involved in the running of a program within a computer. The net effect of this rule is that if are in the position of arguing against the patentability of software under Art 52(2), you can equally well argue lack of novelty or inventive step in the standard way.

    Most of the time, the “technical or not” test kills a software patent not because it is about a computer program, but because it is a business method: in these cases, the data processing involved is technical, but generally is based on known technology (such as a relational database) and the adaptation of said technology to business aims does not lend inventive character to the claim.

  33. 1 No portion of any opinion issued today other than
    our Per Curiam Judgment garners a majority. The court
    is evenly split on the patent eligibility of the system claims. Although a majority of the judges on the court
    agree that the method claims do not recite patent eligible
    subject matter, no majority of those judges agrees as to
    the legal rationale for that conclusion. Accordingly,
    though much is published today discussing the proper
    approach to the patent eligibility inquiry, nothing said
    today beyond our judgment has the weight of precedent.

    As Judge Rader points out. This is also the only time I’ve ever seen a section at the end titled
    “Additional Reflections of Chief Judge Rader”

  34. Bob, US patent law has trouble with patenting printed matter and mathematical equations. EPC Art 52 is simply out to block the same subject matter. I see nothing problematic about that and I don’t understand what your problem is with it. Remember the “as such” of Art 52, which minimises the reach of its eligibility exclusion.

  35. bob,

    Same comment below at 7:47 applies. You err in the “directed towards” <> “per se” understanding.

    Thanks.

  36. 1 If all of the claims of these four patents are
    ineligible, so too are the 320,799 patents which were
    granted from 1998-2011 in the technology area “Electrical
    Computers, Digital Processing Systems, Information
    Security, Error/Fault Handling.” See U.S. Patent &
    Trademark Office, Selected Technology Report, available
    at
    link to uspto.gov
    efh.htm. Every patent in this technology category covers
    inventions directed to computer software or to hardware
    that implements software. In 2011 alone, 42,235 patents
    were granted in this area. Id. This would render
    ineligible nearly 20% of all the patents that actually
    issued in 2011. If the reasoning of Judge Lourie’s opinion
    were adopted, it would decimate the electronics and
    software industries. There are, of course, software,
    financial system, business method and telecom patents in
    other technology classes which would also be at risk. So
    this is quite frankly a low estimate. There has never been a case which could do more damage to the patent system
    than this one.

    So says Judge Moore, dissenting-in-part.

    Judge Radar has some interesting comments as well.

    CLS v. Alice.

  37. …..Or take a coffee mug rendered new by having imprinted on its outer cylindrical surface the notation of a new and inventive catchy melody. Plenty of new information processing there, no?

    Is the new mug eligible, non-obvious, is it neither or both?

    How does the US patent statute forbid a patent on it, and how the EPC?

    Information processing to yield a sharper image is technical, and patentable in Europe. Processing information to make more money on Wall Street (or in the London City) is not.

  38. Hi Max,

    What I find strange about the EPO and Article 52 is that, as well as computer programs, presentations of information and mathematical methods are excluded too.

    If a new mathematical method is developed and used to create a computer program which is in the technical field of image enhancement, should a patent on (the use of) the program (or the new machine) be possible because claims on any form of image enhancement are directed toward the (re)presentation of information and/or the mathematical methods therein? I’d argue the same with claims in mpeg or cryptography patents.

    Cheers.

  39. You might notice Malcolm’s slip-up of getting “over it” when the law is changed – indicating that he recognizes that a change in law would be required to match his desired agenda.

    You might also notice that any other post by Malcolm intimating that the current controlling law is anything but as you put in your post at 1:15 PM falls under the following definition:

    dissembling present participle of dis·sem·ble (Verb)

    1.Conceal one’s true motives, feelings, or beliefs.
    2.Disguise or conceal (a feeling or intention).

    While we both know it is pretty lame to pretend the law is something other than what it is, Malcolm loves to attempt to disguise his agenda as current controlling law. Why he thinks such petty intellectual dishonesty is not transparent, I cannot fathom.

    Pretty silly of him, but c’est la vie.

  40. NWPA,

    You might realize that while a complete definition of “technical” has not been provided by visiting pundits to these boards, the FACT that the US law provides more extensive coverage of patent eligible material beyond a “technical” test has been well established (both in court decisions as well as through the statutory language of “useful arts”). For whatever odd reason, MaxDrei has never accepted what US jurisprudence means in this area.

  41. And how can information processing not be technical in nature? What is it then? Information processed by a machine. What is that if not technical?

  42. Jake, in the EPC, Article 52(2) declares as ineligible, inter alia, “programs for computers” but Art 52(3) dilutes this prohibition by declaring that the exclusion of (2) is only to the extent that the claim is directed to the computer program “as such”.

    Suppose the program is in the technical field of, say, image enhancement. Then the EPO is going to see eligibility positively. It grants signal claims and Beauregard claims, you know.

    But if the program is to manage tax liability, then the EPO will see its eligibility negatively.

    GATT TRIPS visualises patents in all fields of technology. Accountants who dream up tax-saving methods are not contributing to the progress of technology so why should they get a patent, however ingenious their schemes are?

  43. So J. Rader in a single opinion in 1994 (his sixth year on the court) single handedly opened the door to patenting information and abstractions? And the other 11 judges on the court were powerless to stop him? All in a misguided attempt to coddle industry elites? Who were these inudstry elites in 1994?

    Like I said, fascinating theory.

  44. even though the law specifically says programs for computers shall not be patentable.

    That’s not what it actually says.

    You need to understand the context of “as such” and “per se.”

  45. But aren’t all computer programs “technical”? Therefore, the reasoning could go: programs for computers shall be allowed as patents, even though the law specifically says programs for computers shall not be patentable.

    Maybe if they rewrote the law to say “Programs for computers shall not be patentable. No, really, they won’t. Hey, are you listening – no programs. Ever!”

  46. Sometimes the most useful contributions to a thread are those with the fewest words.

    I can think of a few that would maximize their value to threads by taking this to the extreme.

    ;-P

  47. Thank you janet. I had not noticed that very good point. No need to dispute validity if the claim has not even been asserted.

    Sometimes the most useful contributions to a thread are those with the fewest words.

    So, Malcolm, who knows if you are right, that the subject matter of claim 2 is screamingly obvious. A definitive answer will have to wait, I suppose, till somebody infringes it.

  48. A method of processing information. The SCOTUS just hasn’t completely figured it out yet. Benson–the criminally insane case–needs to be explicitly overturned.

  49. The obviousness of claim 2 was never argued by HTC because it was not alleged that they infringed claim 2.

  50. Another vacuous post.

    Attaboy Malcolm.

    Too bad you torched your agenda yet again below in your answer to the card man.

    As they say, svcks to be you.

  51. And with the exposure of Malcolm’s actual agenda confirmed, this little throw-away topic can be seen for what it is: just more of Malcolm’s dissembling posts.

    Malcolm, do you need me to post the definition of dissembling?

    It is archived (and under similar situations at that).

    I think Prof. Crouch will need to heavily invest in chum articles in order to keep you from having your @$$ kicked all the time (and even then, that won’t help you).

    Malcolm, maybe you should just move your posts over to techdirt or slashdot or some such site that does not care about real law (or at least what the real controlling law is right now in this reality). Your fee-fees may not be hurt all the time and you might find some small spark of happiness for your bitter and withered soul.

    LOL – Life is good.

  52. Malcolm’s response to the card man explains why he does not respond to my accurate capture of the FACTUAL situation.

    Malcolm’s agenda lay exposed.

    Life is good.

  53. Glorious self-defeat and yet another admission of what is current controlling law.

    Those poor fee-fees of yours must hurt so.

  54. Whos is this person or these people who decided, misguidedly, to coddle “the industry elites” (and btw, who are these people exactly?) by deciding, without any basis in the law whatsoever, that BIG POWERFUL COMPUTER BRAINS were patentable?

    1) Who is the judge who wrote In re Lowrey? [Rader, 1994]

    2) Who wrote: “A printed matter rejection under Section 103 stands on questionable legal and logical footing.” [Judge Smith; footnote in In re Gulack – 1983; cited approvingly by Rader in Lowrey; Gulack claimed a “continuous series of numbers” generated by a “non-obvious” algorithm, where the series is imprinted on an object for “educational purposes” or to “create the semblance of magic”]

    3) Who wrote the most nonsensical self-serving sentence ever to appear in a Federal Circuit opinion that didn’t have the word “Prometheus” in the title: “In Lowry’s invention, the stored data adopt no physical structure per se. Rather, the stored data exist as a collection of bits having information about relationships between the ADOs. Yet this is the essence of electronic structure.” [Judge Rader, In re Lowrey, 1994]

    4) Who were the folks running the PTO when the decision was made not to appeal those cases? Who presided over the issuance of the greatest number of barely examined computer-implemented inventions in the history of the USPTO? Who allowed a claim to be granted on a computer-implemented “method of identifying a bird” among reams of other hand-wavey computer-implemented grrb-ge that differs from other hand-wavey computer-implemented grrb-ge only in the recitation of “new” “data structures” (e.g., “available real estate”, “credit”, “contractual obligations”, “law firm rankings”, etc) or “new” receive/transmission locations (“hand held device”, “on a plane”, “self-driving car” etc)?

    Fascinating theory

    Not a theory, really. More like “history.”

    Software is patent eligible subject matter. Get over it.

    Nope. I’ll “be over it” when the law is changed. In the meantime, I’m happy to explain why the law should be changed. And for obvious reasons I’m not terribly interested in the opinions of patent prosecutors, pundits and/or industry insiders who are deeply invested in the status quo (or who wish to see more of the same). That’s not to say that I am unaware of the opinions.

    If your issue is with the PTO’s failure to rigorously examine software applications under sections 101, 102, 103 and 112, then you have plenty of company.

    That is certainly a related issue. I’m aware that I have company.

  55. No Leopold, it is merely an observation of what seems to drive you and your choice of comments.

    Do we need to revisit the math you yourself provided that proved the point that you are FAR more likely to troll me? Or did you conveniently forget that little tidbit? You tend to forget those types of things too easily. And then you tend to ‘forget’ to address the items asked of you that places the entire conversation in the proper context.

    You tend to ‘not see’ and it is evident that this happens because you don’t want to see.

    Your alignment with Malcolm – now that is beyond creepy.

  56. Does this mean that you are not going to actually [sic] the points raised to you?

    What are you talking about?

    Should I really be surprised that you don’t want to give answers and that you really only want to play your Malcolm cheerleader role (yet again)? (Do you wear a special outfit when you do this?)

    This weird obsession with Malcolm, cheerleading outfits, and “swagger” is beyond creepy, anon.

  57. There you go agai wanting someone else to do something that you should be doing.

    What this confirms is that you don’t understand this area of law.

    I suggest you take a refresher course and then that you post what the difference I coverage is.

    (You can even explore the archives here, as I have ALREADY explained this clearly and very succinctly). You may not recognize this, as it was answers given (and answers that did not torch any agendas). That, you do recognize.

  58. Isn’t it funny that Malcolm expends SO much effort on something that he thinks is so worthless?

    If truly ‘worthless,’ then why the angst – and such extreme angst it is?!

  59. Sorry Malcolm – the admission was freely made by you. I merely noted that you made such an admission and pointe out how such an admission torches your agenda.

    If you don’t like it, you only have yourself to blame.

  60. Sorry too Leopold that a simple truth is so hard for you to accept.

    Does this mean that you are not going to actually the points raised to you?

    Should I really be surprised that you don’t want to give answers and that you really only want to play your Malcolm cheerleader role (yet again)? (Do you wear a special outfit when you do this?)

    Maybe you want to aim your arrow again at the wrong target and tell me to just shot-up again like you did before?

  61. It is not a lie. Your entire reply is meaningless based on that simple fact.

    Sorry that you don’t like it, but that is the way it is.

  62. one has to do with functionality/ utility and one has to do with expression

    That’s nice. Explain the difference to everybody.

    In your explanation, please explain whether or when an image of David Kappos’ shiny head imprinted on an object “has to do with expression” as opposed to being “functional.”

    your own admissions about controlling law concerning the exceptions to the printed matter doctrine?

    The only “admission” I recall, Trollboy, was and is that the “controlling law” regarding the “exceptions” to the “printed matter doctrine” is a pile of nonsensical g-r-bage that would never stand up to Supreme Court scrutiny (unless, of course, we let one of those “Supreme Court” attorneys argue the case). Do let us know if you are referring to some other “admission.” More likely you are simply engaging in another of your fabulous l i e s.

  63. What’s “funny” is that you accuse others of reflexively disagreeing with you at the same time you continuously attack them personally, even if they have not commented on a particular thread.

    What the Sam Hill are you talking about?

    Is it anything like your open attacks on Gene Quinn, whom has never even conversed with you on ANY thread?

    You do like living dangerously in your glass house, don’t you?

    (and btw, I have previously distinguished open attacks and those attacks on people who have -through their actions – earned attacks – like you have earned attacks through your repeated ‘twists’ and ‘spin’ done solely to advance your agenda in complete disregard to any established law, or fact or what others have actually said.

    In short: you are getting what you deserve from me and your actions towards Quinn are simply not comparable. That is why you have a closer comparability to the recent antics of Mr. Schroeder than anyone else.

  64. Do you really care to archive a lie that you did not make such an admission?

    Do you really care to archive a lie about when you stopped beating your wife?

  65. What’s funny about this is that my posts are not pro-Gene as much as they are anti-Malcolm.

    What’s “funny” is that you accuse others of reflexively disagreeing with you at the same time you continuously attack them personally, even if they have not commented on a particular thread.

    What “lesson” is to be gathered from that, Trollboy?

  66. That is not a lie.

    Yes it is. If it wasn’t a lie, Trollboy, you could explain to us how your counsel is screened from “anything that looks like unsolicited prior art.” In particular, you could explain to us how your counsel avoids learning about the contents of registered letters addressed to your counsel and sent to your counsel by other law firms.

    But you can’t explain how that’s done. Or you simply refuse to do so because you’ll look like an absolute f00l. And you also can’t identify a single other firm besides “your counsel’s firm” who implements such a screening strategy. Meanwhile, no such screening of registered letters appears to take place at any respectable patent law firm, nor has such a strategy ever been discussed (that I can find) publicly in spite of the fact that the practice of alerting lawyers to prior art using registered mail is rather old and established.

    So the extent of your “intellectual honesty,” Trollboy, is to l i e about a topic (usually about something that someone you disagree with said), then desperately attempt to change the subject when you are busted, and then pretend that all questions pertaining to your falsehood were “asked and answered.” Rinse. Repeat.

    Maybe you can tell us, Trollboy, what your hero Gene Quinn thinks of your strategy and whether he believes that “your counsel” actually implements it in a manner that successfully achieved what you like to pretend that it achieves. Go ahead and ask him.

  67. Right, and explicitly what there is ineligible? At least in the US, the algorithm. I’m guessing that is probably covered by the EU’s ban too, but apparently judges just can’t figure it out so the legislature will have to bring its boot down.

  68. “With EE I can imagine the drafting challenge is also to claim at the highest level of conceptuality one can seriously defend”

    That is only a challenge in EE if you choose, as a ta rd, to make it your challenge.

  69. “is there not an infinity of intermediate Levels of generality, that one might characterise as architecture?”

    Yes, if you are interested in the field of sophistry.

    This “well but we can look at it at a different level” nonsense is just an attempt to throw attention away from the true intention of getting the claim, i.e. to cover you up some software, which was specifically forbidden it seems.

  70. What does your question have to do with my answer?

    (Hint: nothing. Your Calvinball face sp1ke awaits)

  71. It’s absurd on its face. It’s absurd because “this discussion” involves screening lawyers from receiving registered letters from law firms, and law firms don’t send registered letters by email. It’s absurd because even if you had an automated screening system that applied to registered letters, you’d have to be really dim to program that automated screening system to discard registered letters sent to you from law firms, even (and especially) anything that looks like unsolicited prior art.

    So, you’re still maintaining that “your counsel” trains its mailroom staff to discard registered letters from other law firms? Of any sort?

    Why won’t you answer the question?

  72. Is that a ‘serious defense’ that includes your own admissions about controlling law concerning the exceptions to the printed matter doctrine?

    What does “I’m all ears” mean in this sense? I think that a different body part would be much more appropriate.

    Or are you going to ‘wow’ us again with your ignorance between the types of protection afforded by patents and copyrights?

    You do realize that one has to do with functionality/ utility and one has to do with expression, right?

  73. What’s funny about this is that my posts are not pro-Gene as much as they are anti-Malcolm.

    Gene is not right about everything he posts.

    But he does approach things in an intellectually honest manner and draws a bright line against the purposeful misrepresentations of law, fact, or what others post.

    Funny how this type of honesty draws your ire.

    Tell me what is the lesson to be gathered from this?

    Just [shrug] and stand by your dishonesty.

    Thanks.

  74. It comes with a shiny metal hat that Malcolm himself has personally buffed. Sign up now for membership in the little circle club and have your hat autographed by your choice of any of Malcolm’s svckies (that he does not use – wink wink). My favorite is ‘Keeping It Real,’ just for the irony).

  75. Without such limitations

    …so a lawless, gut-feel ‘policy’ concern is your driver for purposefully twisting what the law actually is.

    Got it.

  76. I ask you to show me the actual lie, you run away and refuse to give any answers.

    “our counsel is screened from unsolicited mail, even (and especially) anything that looks like unsolicited prior art.”

  77. an automated screening procedure is exactly equivalent to a non-automated one for the purposes of the discussion.

    HUMPTY HAS SPOKEN!!!!! BOW DOWN!!!!!

    BASK IN THE DEEP CLEAR POOL OF INTELLECTUAL HONESTY!!!!!

  78. “Not at all. Without such limitations on patenting the door is opened to protecting information and abstractions with patents (e.g., claiming “new” devices or methods according to their desired “new” functions or results).”

    We have the judicially created exceptions to patent eligible subject matter under 101. The PTO should be able to apply those in a reasonable manner. But they don’t. And have consistently demonstrated over and over again that they can’t. Probably because SCOTUS prefers to keep for itself the power to say, “We know abstract when we see it.”

    Software is patent eligible subject matter. Get over it. If your issue is with the PTO’s failure to rigorously examine software applications under sections 101, 102, 103 and 112, then you have plenty of company.

    “It’s also the system that has evolved to protect so-called computer-implemented ‘inventions’.”

    They are inventions. The fact that you don’t think they are, or should be because it doesn’t take as much skill to “invent” one as it does to chop DNA and protein into fragments and bits doesn’t negate that fact.

    “That evolution did not occur out of necessity or by a straightforward application of legal principles…”

    It didn’t? Why not?

    “…but out of a misguided desire to coddle the industry elites who like to play at the Great Patent Casino.”

    Whose misguided desire? Whos is this person or these people who decided, misguidedly, to coddle “the industry elites” (and btw, who are these people exactly?) by deciding, without any basis in the law whatsoever, that BIG POWERFUL COMPUTER BRAINS were patentable?

    Fascinating theory though.

  79. every time you claim this and I ask you to show me the actual lie,

    “our counsel is screened from unsolicited mail, even (and especially) anything that looks like unsolicited prior art.”

  80. Let me know when you realize that an automated screening procedure is exactly equivalent to a non-automated one for the purposes of the discussion.

    That’s absurd. So you’re still maintaining that “your counsel” trains its mailroom staff to discard registered letters from other law firms? Of any sort?

    Yes? No?

  81. Once again you claim I have lied.

    And every time you claim this and I ask you to show me the actual lie, you run away and refuse to give any answers.

    On the other hand, your lies are quite readily available and have been presented many times. Your lies in dealing with the fact that you know what is controlling law when it comes to the exceptions to the printed matter doctrine and that “configured to” is structural language (both admissions you have volunteered) do not stop you from making blatant lies in pursuit of your anti-software patent agenda.

    Try a little intellectual honesty Malcolm.

    Just a little.

  82. But what has any of that to do with the ridiculous screening procedure

    Everything.

    Think about it. Let me know when you realize that an automated screening procedure is exactly equivalent to a non-automated one for the purposes of the discussion.

    Try to open your eyes enough to see the complete picture (and not trip over the arrows at your feet)

  83. You keep on throwing out this comment as if it makes some sort if point for you.

    Trollboy, it makes the point that you are full of —t. You brought this strategy up yourself as an implemented solution to what you described as the “unethical” practice of a third party sending a prosecutor prior art by registered mail.

    You keep on forgetting to answer the question as to how you ever get by without a spam filter on your email

    As has been explained to you, Trollboy, your question is not relevant to the fact of your l-ying. I’m not “forgetting to answer” anything. I’m simply ignoring your transparent attempt to change the subject. That subject again: you’re a l y i n g t 0 0 l.

    And I wouldn’t need to keep bringing up that fact if you didn’t insist on climbing up onto your tiny white pony and insulting everybody who disagrees with you about anything as being “intellectually dishonest.”

    Imagine the quality of a blog where such mischaracterizations were controlled.

    You’ll always be Gene’s favorite, Trollboy. You can stop kissing his ring, at least for today.

  84. You’re talking about intellectual honesty? And accusing MM of using a “strawman caricature”?

    Hmmm… Let’s go to the archives:

    Chas said…
    I’ve historically done “third-party submissions” by simply mailing the prior art to counsel for the applicant with a note explaining why it is material (this can be done anonymously by having a friend at a distant law firm send the letter).

    anon said…
    There’s a reason why our counsel is screened from unsolicited mail, even (and especially) anything that looks like unsolicited prior art. I certainly hope that most major firms protect themselves this way.

    MM said…
    How does one tell whether an unsolicited registered letter contains prior art or not? Just curious. How much mail does your counsel refuse to accept?

    anon said…
    It’s not difficult to screen this type of incoming material – you might have to have staff that can read.

    MM said…
    LOLOLOL!!!!! And exactly what do you tell your “staff” to look for when they receive and open these letters?
    You do realize that your counsel will be sent the letter registered and the receipt will show that your counsel received the letter. When you claim to have not known about the material reference at trial, the receipt showing that the letter was received will be put into evidence. Then you can explain to the judge your procedures and reasoning for hiring “staff” to screen out material prior art to the judge.

    anon said…
    You haven’t worked in a firm with a mailroom, have you MM? You have no idea how a spam filter would work with snail mail, do you?

    MM said…
    I’ve never received spam by registered mail. Tell me exactly how your counsels “spam filter” works, anon, to screen out “bad” letters sent by registered mail from “good” letters sent by registered mail. This is the second time I’ve asked you to answer this question. Are you going to keep ducking?

    anon said in reply to MM…
    Do you really think that just by sending a letter registered mail that you can dupe a system of screening attorneys from the unsavory practice of trying to trick them? Really? Does that actually need an answer? (Or more likely, as such an easy step never occurred to you?)

    MM said…
    Answer the question.

    anon said…
    I did: Do you really think that just by sending a letter registered mail that you can dupe a system of screening attorneys from the unsavory practice of trying to trick them? Really? Does that actually need an answer? (Or more likely, as such an easy step never occurred to you?)
    (you might try understanding the difference between personal and business mail, and what a firm is allowed to handle (regardless of registered mail address), and then check to see where you misplaced your ethics in thinking that such a slimy trick is “ok.”

    I think that speaks for itself, despite your silly (and futile) attempts to pretend you said something other than what you did. I don’t know about MM, but sure, I use spam filters on my email, but I haven’t always. No, I don’t personally open every piece of mail that is addressed to me. But what has any of that to do with the ridiculous screening procedure that you claimed “your counsel” uses?

  85. A technical solution should, at least, involve a new transformation of matter as the desired result of the method, or (in the case of machines or compositions) a structurally recited difference when compared to the prior art.

    Why? Because you say so?

    Not at all. Without such limitations on patenting the door is opened to protecting information and abstractions with patents (e.g., claiming “new” devices or methods according to their desired “new” functions or results). If you like, we can discuss the costs/benefits of a system where that door is opened. That’s the system advocated by Les and other like-minded pro-patent “commenters.” It’s also the system that has evolved to protect so-called computer-implemented “inventions”. That evolution did not occur out of necessity or by a straightforward application of legal principles but out of a misguided desire to coddle the industry elites who like to play at the Great Patent Casino.

  86. Hmm..interesting comment MD. Internationalize the spec. Have to think that one over.

    But, as for me, I took over prosecution of a company that had patents drafted by European Patent Attorneys. And, I know a fair bit about drafting claims and spec for Europe. Probably not nearly as much as I should know, though.

    From one large client we had, what the difference seemed to was lots of money will get you into “technical”.

    I’ve had lots of different experiences in U.K. and at the EPO. Some wins some loses. Seems to me money and big corp. seem to win.

  87. Because the Supreme Court said so.

    No wait, they did not.

    What did they say?

    That’s right:
    Bilski: MoT not required
    Prometheus: MoT not sufficient.

    Don’t you remember the famous Malcolm Bilski Prediction: Diehrbots crushed, software and business methods found illegal?

    LOL – that was a pretty peaceful 3-4 months when Malcolm disappeared after Bilski came out.

  88. You keep on throwing out this comment as if it makes some sort if point for you.

    It does not.

    You keep on neglecting to take into account the entire conversation.
    You keep on forgetting to answer the question as to how you ever get by without a spam filter on your email, as of course by your ‘reasoning’ you personally open each and every ‘letter’ addressed to you.

    Funny how it is that you don’t have enough intellectual honesty to actually address the points that I really do make instead of the strawman caricatures you keep on bringing up.

    Imagine the quality of a blog where such mischaracterizations were controlled. Oh my, the real conversations that could be had. The number of actual answers that Malcolm might actually provide.

    C’est la vie.

  89. Your admission is archived.

    Do you really care to archive a lie that you did not make such an admission?

    Really?

  90. in MechE, I have to fix the underlying “inventive concept” and claim it at the highest level of generality I can manage.

    This is true of prosecution in every field, MD.

    I can imagine the drafting challenge is also to claim at the highest level of conceptuality one can seriously defend.

    No doubt. I’m still waiting for a “serious defense” of, say, a typical Beauregard claim. Are you here to present one? Are you going to present a “serious defense” for the functional claiming of computer-implemented information processing methods? Go ahead. I’m all ears.

    Hopefully it’ll be something more substantive than “that’s what the industry wants” or “innovation in the computer arts will be drastically slowed if they are left only with copyright protection for software.”

  91. There is no Sniff test that Malcolm does not like, and he does not care how vacuous he is, or in front of whom he is vacuous.

    He is quite shameless like that. It’s part of his ‘swagger.’

  92. Tell me about it NWPA. Because I don’t understand.

    To succeed in Europe, invest in drafting skills. Understand that US-style drafting will get you a long way in the USA but will hurt you everywhere else.

    Those times you lost in Europe. Any idea why? Would it have made any difference if your EPO counsel had been given a chance to internationalise the drafting of your specification, before the end of the Paris year?

  93. The choice as I see it is not inevitably between i) the bare concept as such and ii) the specific implementation in code.

    I don’t see these as the only two choices either, but they are certainly among the choices. The bare concept is pretty much all that is needed, at present. Certainly that’s all that’s needed in the claims for softie-woftie inventions. All you need to do is vary the name given to the type of information being received or identify a “new” person or destination for the information or (if you’re really clever) find a “new” way to sort or “process” the information (recited as generally as possible, of course).

    Your touch-screen recognizes two finger touches and a swipe contemporanously? Mine recognizes a finger touch and an eye blink or brainwaves to trigger a field responsive image flag associated with a screen event. Can I has patent now?

  94. So, in other words, if you have lots of money and pull you can get your stuff into the technical arts.

    That has been my personal experience dealing with this issue in Europe where I have both won and lost.

  95. Don’t understand you Malcolm. You are chem/bio, right. Claiming in that field seems to me relatively straightforward. It is “Molecule X” and downstream derivatives. But in MechE, I have to fix the underlying “inventive concept” and claim it at the highest level of generality I can manage. Of couse i would, wouldn’t I, but I think that is intellectually more of a challenge and so much more fun.

    With EE I can imagine the drafting challenge is also to claim at the highest level of conceptuality one can seriously defend. I see that as legitimate, you apparently not. That confirms me in my suspicion that engineering is very different from chem/bio.

  96. “A technical solution should, at least, involve a new transformation of matter as the desired result of the method…”

    Why? Because you say so?

  97. Malcolm I think the EPC is careful never to define what is meant by “an invention”. No need.

    I think the EPO chooses also not to define what is meant by “technical” for fear that the Definition will soon be out of date. With more than a thousand unappealable Decisions at the EPO per year, a Consensus has emerged, what “technical” means, which Appeal Board members and advocates understand and share. There is freedom for that Consensus to get progressively ever more refined.

    There is no stare decisis at the EPO, so no need to lay down any authoritative Definition. DG3’s instinct is to stay loose.

  98. The functional claiming is the algorithm that is not easily done. The implementation of the functional claiming can be accomplished by anyone skilled in the art.

    What I said is a lot different than what you said.

  99. is there not an infinity of intermediate Levels of generality, that one might characterise as architecture?

    One might characterize an argument as “architecture”. Can we patent arguments, too? Maybe if I write them down. Look! There are indentations on the paper! And they are useful. If it’s a good argument, the person reading it will be able to defeat their opponent in a debate. So … function! Yummy “logic.”

  100. and you have admitted to as such – configured to is structural language.

    Oh right. That was the same day you admitted that you like to strip down to your underoos and hide behind a bush near the elementary school. How do I keep forgetting that?

  101. Heaven forfend, Malcolm, that you argue from a false dichotomy. The choice as I see it is not inevitably between i) the bare concept as such and ii) the specific implementation in code. I’m not a program person but is there not an infinity of intermediate Levels of generality, that one might characterise as architecture?

    Indeed, until somebody proves me wrong, I will suppose that inventive contributions are more often found at the level of architecture than in the idea as such or the precise code that implements the concept.

  102. intellectually dishonest

    Say, Trollboy, have you found the name of a single law firm that uses mail room staff to screen registered letters to attorneys and then throws those letters away if they contain prior art relevant to an application being prosecuted by that attorney?

    Please let us know the name of that firm before you struggle to saddle yourself on your tiny white pony.

  103. With respect, you were not there during those days of cross-examination. You are not going to put your instant judgement of what was obvious back then higher than that of Christopher Floyd QC are you?

    Pretty sure I am going to do that, MD.

    Please tell him I said so, too. Thanks.

  104. The worthless art: “anybody can code….”. LOL!!!!!!!!!! LOL!!!!!!!!!!!!!

    Sorry, friend, but that’s the built in presumption that allows you (or me, or even some wife of a managing partner in a law firm who’s never written a line of code in her life) to “invent” computer-implemented methods and compositions and claim them functionally.

  105. …and it’s a good thing that technical and useful arts are not the same thing.

    (of course, we all know that Malcolm would never do an unethical or intellectually dishonest thing like try to obfuscate this fact)

  106. Malcolm, in England, issues go all the way to trial when both sides sincerely think they will win. I am not going to argue with you, that Claim 2 might be a borderline case on obviousness.

    But the trial judge had the benefit of many hours of live cross-examination of the opposing technical experts at the trial. And he (Christopher Floyd) is a man with 20 years of experience as an advocate, doing nothing else but IPR cases, before stepping up to judging such cases. On obviousness, the court of appeal will reverse him only if he went wrong “in principle”. David Kitchen LJ (younger than Floyd, I believe) found that he did not. End of Story (but I dare say it could easily have gone the other way).

    With respect, you were not there during those days of cross-examination. You are not going to put your instant judgement of what was obvious back then higher than that of Christopher Floyd QC are you?

  107. here a clear indication that patents do promote innovation. Some industries want their technologies included in technical.

    If “some industries” want something thing, then that thing clearly “promotes innovation”? Is that your logic? Fascinating.

  108. So, here we go, MM off to the moon with nonsense.

    (1) The worthless art: “anybody can code….”. LOL!!!!!!!!!! LOL!!!!!!!!!!!!! Boy, read Donald Knuth’s experience when he first tried to code a random number generator. He cycled through less than 10 numbers before repeating. Boy.

    Etc. No use arguing with a bot in the brain king of the trolls.

  109. Good thing software is structurally different.

    Too bad those differences aren’t recited in the claims.

  110. Apple’s multi-touch interface is anticipated by mechanical typewriters?

    More like obvious. And a typewriter, of course, is just one example of a very old device controlled by “contemporaneous” touching. I think there were keyboards on more recent devices called “computers” that kind of looked like typewriters, too.

    The concept of using multiple touches to control a device is old. And it’s the concept that is being claimed, not the solution (which is the code). The game played by the softie-wofties is to re-define everything so it seems so very different. At the same time, the user interfaces are designed in nearly every instance to look and behave like idealized mechanical devices (gee, I wonder why?).

  111. You don’t understand? Well, guess what boys and girls, here a clear indication that patents do promote innovation. Some industries want their technologies included in technical.

    Good thing software is structurally different.

  112. I’ve never understood the difficulty with fashioning a working definition of “technical.” I do understand that certain industry groups will lobby hard to have their “technology” included within the definition, and pleasing them all will be impossible. But a meaningful, reasonable, working definition of “technical” seems pretty straightforward.

    A technical solution should, at least, involve a new transformation of matter as the desired result of the method, or (in the case of machines or compositions) a structurally recited difference when compared to the prior art.

  113. I suppose it’s understandable that the Patent Office missed this. The examiners are all much to young to recognize the uncanny resemblance between the iPad and the Royal Tab-o-Matic.

  114. Well, first, let’s recognize that claim 1 was obvious g-rbage. Nothing there is any more patent-worthy than a claim to a method of drinking water on a brown ship heading east while standing next to Justin Bieber.

    Claim 2, then, needs to teach a non-obvious technical solution to a new problem.

    Here’s claim 2.

    if a multi-touch flag is associated with a particular view, allowing other touch events contemporaneous with a touch event received at the particular view to be sent to software elements associated with the other views.

    This is just a restatement of a function of the device and is not a “technical solution” to any problem. The “technical solution” is the implementation of this feature. But of course that solution is “worthless” to these computer folks because (we are told) any goon can write the code in a day or two. But patents are super-important for this “technology” because otherwise nobody would innovate anything. Right. That makes sense.

    The “problem” addressed here, by the way, is neither new or non-obvious. Traditional mechanical devices, e.g., typewriters, have embodied solutions to the “problem” of “how to deal with” “multi-touch” user interfaces.

  115. Malcolm, thanks for the useful comment, but I’m not following you.

    The claim on which the trial judge was reversed (on eligibility) was Claim 2 of the ‘948 patent. For its text see para 31 and 2 of the judgement. The Claim burbles on about flags and views. I took this recitation to be specific enough to Count as the solution to the objective technical problem, which falls to be implemented in software.

    I infer that you see it otherwise. In what way though?

  116. The English Court: The problem which the patent addresses, namely how to deal with multiple simultaneous touches on one of the new multi-touch devices, is essentially technical

    How odd that the claims don’t describe “how to deal with” (is that how the English write “solve”?) this “technical problem.”

  117. Your computer is illustrating to you the dangers of inconsistency so that you will change your opinions of 101.

  118. I thought the ‘glory’ of your system was that there was no Stare Decisis?

    You ask “how long” as if you want stare decisis.

    Without it, the answer to your question is “Never,” for each case brings with it the possibility of reverting backwards.

    Unless of course, you do have stare decisis after all…

  119. MaxDrei,

    Wasn’t there a ‘101’ case you tried to bring to everyone’s attention awhile back for which I pointed out that “integration” was the key?

    Do you remember that case?

  120. Hah! Your go now, NWPA.

    BTW readers, sorry about the upper case that sprout everywhere in my postings. No idea why my machine now insists on imposing them, contrary to what I am keying in.

    Perhaps it is trying to help me write my stuff in German??

  121. I jump in to make an observation on the remarks of Lewison LJ, picked out above by Dennis.

    It was Kitchen LJ who first gives the leading opinion in this unamimous decision, in 139 paragraphs. But Lewison LJ takes the opportunity, in 15 paragraphs, to vent his frustration on the dissonance between the caselaw of the EPO and that of the English Courts.

    He is not the first EWCA LJ to do so and, like the previous ones, reveals that he doesn’t yet “get” the EPO way. That is a pity, because the Enlarged Board of Appeal of the EPO is more of a European Supreme Court, in matters of substantive patentability under the EPC, than is his court, the English Court of Appeal.

    To help readers here, and Lewison LJ, the EPO distinguishes betweeen eligibility, under Art 52 EPC and patentability over the art, Articles 54 and 56 EPC.

    Eligibility Comes first, before we look at the Prior art. The subject matter of the Claim must have “technical character”. Some things (like pure financial methods, as such) do not have technical character but a Computer (or an Information carrier) does. Really, not difficult.

    Novelty is easy, but obviousness is harder because inventiveness is all around us, not just in matters technological.

    To deal with that conundrum, the EPO (since 1978) uses ist “Problem and Solution Approach. Would that the English Courts would too, but that’s until now too much for them to swallow. Under PSA, the EPO examines obviousness that is technological, Setting aside any artistic or financial or Commercial inventiveness. To be patentable at the EPO, the subject matter of Claims must correspond to the solution to an objective problem that is technical (as opposed to, say, commercial). That’s all there is to it.

    This has been well understood at the EPO for decades. One Looks on bemused. How Long, Lord Justices of Appeal, how long, before the English judges accept the established law of obviousness under the EPC, bend the knee to the EBA line, realise how simple and elegant it really is.

  122. Well, a breath of fresh air. The European Patent Attorneys that get on here and claim that their 101 issues are sorted have certainly been appropriately slapped down.

    Benson is criminally wrong and put us on this course of madness.

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