Bits & Bytes from Jonathan Hummel


#1. House Bill Would Exempt USPTO from Sequestration.

  • Tony Dutra at Bloomberg BNA reports a Bill has been introduced into the House that would exempt the USPTO from government cuts forced by sequestration. The Bill, and an accompanying letter signed by several Silicon Valley Congressman urgers Congress to exempt the USPTO because that Office is funded solely by fees paid with the applications it receives. The USPTO stands to lose about $150 million in funding.

#2. Judge's Facebook Friends not grounds for Recusal

  • Venkat Balasubramani at Eric Goldman's Technology & Marketing Law Blog reports on two cases that seek to answer the question whether or not Facebook "friendships" are grounds for Judicial recusal. The two opinions are further evidence of the way the social networking site is affecting the law in very basic ways by defining or redefining relationships.

#3. Library of Congress Logging Blawgs

#4. New Digital Rights Management Technology (& the Fictitious Lillian Virginia Mountweazel).

  • James Bridle at The Observer reports that Germany's Fraunhofer Institute recently revealed that it is working on a new digital rights management system, entitled SiDiM. Regular DRM involves making changes to the code of the media. The proposed SiDiM, however, make literal changes to the content of the media. For example, the word "unhealthy" would automatically change to "not healthy" and thus distinguish a plagiarist's work from a licensed work. Indeed, there is precedence for this: the "Mountweazel" is a made-up word inserted into a dictionary to catch unwary plagiarists, which originates in the fictitious Lillian Virginia Mountweazel who first appeared in the New Columbia Encyclopedia of 1975.


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  • Cardinal Intellectual Property, an Intellectual Property Search and Services company, is seeking a Patent Search Attorney to work in its Evanston, Illinois office.

Patent Attorney / Agent – Law Firm – Fairfax, Va.

  • MG-IP Law, PLLC is accepting resumes for a Patent Attorney or Patent Agent with an electrical or computer science background and at least two years of experience. MG-IP is a growing top 40 IP firm located in the northern Virginia area and offers a flexible work environment.


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27 thoughts on “Bits & Bytes from Jonathan Hummel

  1. 27

    “The “essential to the invention” test? What?”

    Essential in the context of 101 means if you remove, or ignore a step, or element of an invention, the invention will not function. This is especially important to a process invention because every step is equivalent to a mechanical part. Think of a process as a physical thing, like an engine. If you remove a spark plug from an engine it won’t run. The spark plug is essential to the engine. Likewise, if you remove an element from a process, you will not be able to perform all the steps of the process. Every step is essential.

    Any questions?

  2. 26

    MM: “sometimes it’s incredibly easy”

    Actually I agree with you. With the exception of a manifestly claimed law of nature, physical phenomenon, or abstract intellectual concept, a process standing alone is statutorily integrated. Ultramercial’s invention is an Integrated Technological Process, and therefore statutory.

  3. 25

    MM: ” Guess what phrase Rader included at the ellipses? That’s right: “as a whole” — a phrase which adds absolutely nothing to his point.”

    Actually it is the point. Claims as a whole equates to “Integration”. Ultramercials claims are ultimately statutory because the claims as a whole are to an integrated technological process. No one has ever been able to refute this. Especially you Malcolm Mooney.

  4. 24

    MM:””A court cannot go hunting for abstractions by ignoring the concrete, palpable, tangible limitations of the invention the patentee actually claims”, which is absolutely false?”

    It’s true and it’s the law. See: “Aro Mfg. Co., Inc. v. Convertible Top Co. – 365 U.S. 336 (1961); Where the Court made it clear: “ that there is no legally recognizable or protected “essential” element, “gist” or “heart” of the invention in a combination patent”..Ibid

  5. 22

    LOL – Thanks NWPA, and we even have Malcolm admitting to ‘configured to’ = structural.

    Mighty cogent.

  6. 21

    MM,the way I know you are wrong is that your posts are so long. Try to summarize your points. Focus. Try to make a cogent point or two and then we will discuss it.

    Here, I will give you an example:

    1) Software = Structure (I am still hoping Lemley ends up being removed from Stanford for academic integrity violation).

    2) Structure = patent eligible.

    3) MM is a simian that begins with b.

  7. 20

    When even chum articles get the anti-software-patent advocates so lambasted, it get’s difficult to find articles that get put that agenda in a positive light.

  8. 19

    >U.S. News & World Report
    >See realtime coverage
    >Senate breaks standoff over ‘nuclear option’

    Oh boy, the bourbon drinking liberal arts majors are on the way to the Fed. Cir.

  9. 18

    Hey man, this is ridiculous – post something new already! No matter how long you hold out on us, no one is going to comment in the Judge Linn post!!!

  10. 17

    there is so little information about Martin’s activity immediately preceding the fight or his behavior pattern in general,

    Right. Like for all we know he trained for hours to lure Latino neighborhood patrol citizens into fight-or-die situations. That’s the fantasy of most black teens, as everyone knows. What do you think rap music is, anyway?

  11. 16


    That’s pretty great, actually. My lawyer will be in touch.

    How long will it take Dennis to file a trademark infringement suit?,

    Better yet: tarnishment. 😉

    Will anyone but Malcolm bother reading it?

    I’ll capture the readers turned off by the inevitable “inventive” pop-up ads.

    taking up valuable space

    Bandwidth is getting cheaper all the time. It would be even cheaper if … nah. I’ll save it.

  12. 13

    … and in other news, Malcolm will soon be launching his very own blog … called, appropriately enough given his unquestioned bias against patentable inventions including Ultramercial’s:


    The three biggest resultant questions being:

    1. How long will it take Dennis to file a trademark infringement suit?

    2. Will anyone but Malcolm bother reading it?

    3. Will he do everyone a big favor by discontinuing taking up valuable space here at PatentlyO?

  13. 12

    Rader: it is clear that several steps plainly require that the method be performed through computers, on the internet, and in a cyber-market environment

    Uh … so what? My method of thinking a new thought “clearly requires” that I sit down on a purple couch in an airplane. So what, Judge Rader?

    if the products are offered for sale on the Internet, they must be restricted –step four- by complex computer programming

    “Complex computer programming?” Seriously? That’s funny. More like “old and conventional” programming. And then of course Rader goes on to quote himself (specifically, his beloved Allapat concurrence) saying that “software is hardware” and “the line of demarcation between a dedicated circuit and a computer algorithm accomplishing the identical task is frequently blurred” as if these alleged facts matter somehow.

    Rader: this court and the Patent Office have long acknowledged that “improvements thereof” through interchangeable software or hardware enhancements deserve patent protection.

    Nothing in the claims at issue in Ultramercial here “improves” any computer from anyone’s perspective except from that of the troll with the patent and the slimeball trying to shove his ad in your face. Patents are completely unnecessary for “incentivizing” these people to come up with schemes for making money. That’s what our capitalist system is for. Extracting money from people is not one of the “useful arts” intended to be promoted by patents. If the bar is that low for what constitutes a “useful art”, then the concept of eligible subject matter might as well be flushed down the t–let.

    it claims a particular method for collecting revenue from the distribution of media products over the Internet.

    So “revenue collection” is one of the useful arts? Huh. Not sure the Supreme Court would agree with that. And the use of a computer here is nothing more than old and conventional horsesh-t. Just wait until Judge Rader gets his first iPhone. Then he can re-write this decision in ten years and substitute “hand held networking device” for “computer” and it’ll be equally devoid of substance.

  14. 11

    Due to numerous requests

    LOL – you can only count as one request the requests coming from Malcolm, Keeping It Real, Robert, Francis, Shrivan, Vivika M and all of the other known and unknown svckpuppets of Malcolm’s tortured and splintered psyche.

  15. 10

    Rader: in Prometheus, the Supreme Court recognized that the additional steps were those that anyone wanting to use the natural law would necessarily use.

    Whether anyone would “necessarily” use the independently eligible steps or not is utterly irrelevant, at least when we’re talking about a method claim. All that mattered in Promtheus was whether those steps were old and conventional because the only new matter in the claim was an ineligible mental process (i.e., an abstraction). One could have substitute ANY old and conventional step prior to the step of “thinking about a correlation” and it would have made no difference to the eligibility of the claim. It would have remained ineligible.

    So, the above “analysis” is the foundation Rader lays for his more specific investigation of the eligibility of computer-implemented j—k. What could possibly go wrong, right? After all, now Rader can rely on his work because his views on computer-implementation haven’t yet been squashed by the Supreme Court. He never bothers to discuss what computers are and what they do and the fact that they are now as ancient as the horse drawn carriage was in 1960. Let’s just jump to the thrilling (unsuprising) conclusion:

    with a claim tied to a computer in a specific way, such that the computer plays a meaningful role in the performance of the claimed invention, it is as a matter of fact not likely to pre-empt virtually all uses of an underlying abstract idea, leaving the invention patent eligible.

    “Tied in a specific way”? “Meaningful role in the performance”? “As a matter of fact not likely”? LOL. Thanks for clearing everything up, Judge Rader.

  16. 9

    Rader: This analysis is not easy

    In fact, Judge Rader, sometimes it’s incredibly easy. For some reason, Judge Rader has great difficult admitting this.

    Rader’s “pre-emption analysis” summary is mostly worthless drivel because Rader, evidently, lacks the imagination to provide any examples of what he thinks he’s talking about. Instead, he tries to cobble something meaningful together from the Supreme Court 101 decisions which are nearly all horribly written and contradict each other.

    And then when it comes to the easy business of describing the machine-or-transformation test, Rader stunningly manages to fudge it. Try to believe Rader wrote this: “[A] claim is meaningfully limited if it requires a particular machine implementing a process or a particular transformation of matter.” Then he quotes Bilski which crucially qualifies his incorrect statement by holding that the MoT test provides merely “an important clue” to eligiblity. Gosh, I wonder why Rader would do something like that. We can only guess.

    claim also will be limited meaningfully when, in addition to the abstract idea, the claim recites added limitations which are essential to the invention.

    The “essential to the invention” test? What? Don’t even bother trying to understand what it means. Gobblydegook. Then Rader goes completely off the rails, demonstrating that he still does not “get it”. Judge Rich’s kool-aid has stained his soul and, apparently, the mark can not be removed. Here’s Rader with another one of his thoughtless “pronouncements”:

    because a new combination of old steps is patentable, as is a new process using an old machine or composition, subject matter eligibility must exist even if it was obvious to use the old steps with the new machine or composition

    No. No. No. And no. Wrong. False. And frankly just plain d-mb. Just look at the premise from which Rader launches his analysis analysis: “a new combination of old steps is patentable.” That statement is only true in some circumstances. This is the very subject he’s supposed to be addressing, for cripesake! And it’s downhill from there. A new machine may be eligible for patenting (if it’s properly claimed as a new machine and not as abtraction). But that doesn’t mean that every claim reciting that machine in a method is forever eligible. Once that machine is old and conventional, friend, all bets are off. The only question I have about this is whether Rader’s ignorance on this point if feigned. I suspect that it’s not, which is perhaps more frightening than the alternative.

  17. 8

    Continuing on with the analysis of Rader’s “analysis”:

    the Supreme Court has cautioned that, to avoid improper restraints on statutory language, acknowledged exceptions thereto must be rare.

    There it is again, that strange “statistical” approach to subject matter eligibility. Logic suggests that the “rarity” of a court’s finding a patent (or type of subject matter) ineligible is directly related to the frequencies at which such ineligible patents are sought, obtained and asserted in a lawsuit. This is a constantly evolving situation and these points about “rarity” are red herrings. What is “rare” anyway? Is there any serious person who believes that most patents are ineligible under 101? Even 10% of patents?

    this court gives substantial weight to the statutory reluctance

    “Statutory reluctance”?? I just threw up in my mouth a little bit. After that massive dust-kicking session, Rader finally gets to the interesting questions. Let’s share in the laughter, shall we?

    Technology without anchors in physical structures and mechanical steps defy easy classification under the machine-or-transformation categories.

    Technology “without anchors in physical structures”? Methods without “mechanical” steps (presumably referring to methods which lack steps where physical matter is moved or transformed)? Hmm. What kind of composition or manufacture is he referring to that “lacks anchors” in a “physical structure”? Non-boat “technology, maybe? Why not just come out and say it, Judge Rader: “methods of receiving, processing, storing and/or transmitting information.”

    Then Rader pretends that Prometheus never happened, just before he admits the opposite. What is the point of writing this: “A court cannot go hunting for abstractions by ignoring the concrete, palpable, tangible limitations of the invention the patentee actually claims”, which is absolutely false? In the very next sentence, Rader contradicts himself: “the relevant inquiry is whether a claim … includes meaningful limitations restricting it to an application, rather than merely an abstract idea.” Guess what phrase Rader included at the ellipses? That’s right: “as a whole” — a phrase which adds absolutely nothing to his point but by golly he’s going to say it. It’s a purty little present to those special folks “in the industry” who have trouble remembering rules with more than four words.

  18. 7

    Due to numerous requests, let’s walk again through Rader’s “reasoned” opinion in Ultramercial and count how many self-serving, wrong and/or contradictory statements he makes on his path to keep Ultramercial’s j–k patent afloat:

    The district court dismissed Ultramercial’s claims for failure to claim statutory subject matter without formally construing the claims

    … right, exactly like the Federal Circuit and the Supreme Court did in Myriad. Why the sudden concern about this? Hilariously, further down in the opinion, Rader notes that the CAFC has never made a “bright line rule requiring claim construction.” Let’s just cut the cr-p: some attempt at a partial claim construction at least is always required before analyzing the claims under the patent statutes. How else can a jurist explain why the claims are being approved of or invalidated?

    the only plausible reading of the patent must be that there is clear and convincing evidence of ineligibility.

    There’s some more of that Therasense-style wa nking. Rader’s telling everyone that if he can think up a “plausible” construction that would make the claim eligible, then the case shouldn’t be dismissed. That’s the patent crack talking.

    there is no doubt the § 101 inquiry requires a search for limitations in the claims that narrow or tie the claims to specific applications of an otherwise abstract concept.

    Rader’s already muffing it badly and we’re only on page 6! Let’s fix the error in his statement: “there is no doubt the § 101 inquiry requires a search for novel and non-obvious and, most importantly, eligible subject matter in the claims that narrow or tie the claims to specific applications of an otherwise abstract concept.” There. That was easy.

    The presence of factual issues coupled with the requirement for clear and convincing evidence normally will render dismissal under Rule 12(b)(6) improper.

    This is just wa nking again. Courts shouldn’t be worrying about whether too many claims are being correctly found invalid or ineligible. There shouldn’t be any consideration along the lines of “I just dismissed that other junky patent case under 12(b)(6) last week and now here’s another jnky claim … maybe I’m doing this wrong?” Just follow the law as best as you understand it and make a good coherent argument. You’d think if anyone should be aware of that it would the Federal Circuit.

    if there are factual disputes, claim construction should be required.

    Uh … no kidding, Randy. How much are the taxpayers paying Rader for this banality?

  19. 6

    But Fish, that would deprive 6 of his excuses from discussing what ladders of abstraction mean.

    And that would mean yet another bonfire of little circle club agendas.

    (and lest 6 think that I am – gasp – tr011ing him, this is merely something that he said he would provide, and then made excuses for not providing it until a special thread was dedicated to that particular case)

  20. 3

    this goes a step beyond mountweazels, unless a dictionary publisher issued individualized dictionaries with a different fake word in each.

    That’s an unbelievably tiny and trivial “step” in the age of digital information.

  21. 2

    Venkat Balasubramani at Eric Goldman’s Technology & Marketing Law Blog reports on two cases that seek to answer the question whether or not Facebook “friendships” are grounds for Judicial recusal.

    Was the Facebook “friending” the only evidence of a conflict of interest?

    If so, the lawyers who wanted the judge to recuse himself are unbelievably pathetic.

  22. 1

    The DRM article does a poor job of explaining what Fraunhofer is trying to do. Basically, they are using all of these semantically-neutral word variations to watermark the text with a unique code corresponding to the licensee, so if the licensee distributes the protected document, the watermark can be recovered and the licensee’s identity can be determined. This would ostensibly allow for the protection of the text itself (as opposed to protecting specific file formats like PDF), but it sounds extremely easy to defeat.

    Anyway, this goes a step beyond mountweazels, unless a dictionary publisher issued individualized dictionaries with a different fake word in each.

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