USPTO: Software Composition Inventions are Unpatentable under §101 unless they Clearly Disavow that the Storage Mechanism is a Transitory Wave or Signal

By Dennis Crouch

Ex parte Mewherter (PTAB 2013)

The USPTO has recently designated Ex parte Mewherter as a precedential decision with regards to its treatment of rejections under 35 U.S.C. § 101. The opinion basically holds that standard Beauregard claims (computer readable storage media) are not patent eligible because they could encompass transitory signals that are unpatentable under the Federal Circuit’s Nuijten decision.

IBM’s Patent Application Serial No. 10/685,192 is directed to a “system for converting slide show presentations” that converts each slide into “raster imagery” and then extracts contextual data (such as titles) and places those “in proximity to the raster imagery.” The claim at issue here is claim 16, that is written as follows:

16. A machine readable storage medium having stored thereon a computer program for converting a slide show presentation for use with a non-presentation application, the computer program comprising a routine of set instructions for causing the machine to perform the steps of:

Extracting a slide title for a first slide in a slide show presentation produced by a slide show presentation application executing in memory of a computer;

Converting said first slide with said slide title into a raster image;

Disposing both said slide title and said raster image of said slide in a markup language document; and

Repeating said extracting, converting and disposing steps for a selected group of other slides in the slide show presentation.

The examiner rejected the claim under 35 U.S.C. § 101 as claiming non-statutory subject matter. In particular, the examiner indicated that the instructions could be imbedded in a signal or wave and are therefore unpatentable under In re Nuijten (Fed. Cir. 2007). In its appeal to the PTAB, IBM argued that its claimed “machine readable storage medium” is sufficiently fixed to avoid the transitory concerns expressed by the Federal Circuit in Nuijten. In the appeal, however, the PTAB affirmed the examiner’s rejection – finding that under the “broadest reasonable interpretation” a “machine readable storage medium” continues to encompass unpatentable transitory signals. Here, the specification does not particularly define the claim term and IBM did not offer any promise that the claim is limited to non-transitory signals.

In its 2012 examination training, the USPTO offered parallel guidance:

When the specification is silent (no special definition of a CRM provided in original disclosure):

– It is acceptable to amend the claims to exclude the signal embodiment by adding “non-transitory” to modify the computer readable media.

– See “Subject Matter Eligibility of Computer Readable Media” (Jan. ’10)

“Non-transitory” is not a requirement, but simply one option.

– Applicant can choose other ways to amend the claim in accordance with the original disclosure.

– Not acceptable to just add “physical” or “tangible”

– Nuijten’s ineligible signals were physical and tangible.

– Not acceptable to add “storage” absent support in original disclosure because the broadest reasonable interpretation of computer readable storage media based on common usage covers signals/carrier waves.

The bottom line here is that patent applicants must now specifically disclaim transitory waves or signals as their compositional carrier of any software claims.

406 thoughts on “USPTO: Software Composition Inventions are Unpatentable under §101 unless they Clearly Disavow that the Storage Mechanism is a Transitory Wave or Signal

  1. 301

    “Should be shown? Not a hard fast requirement.”

    You mean it isn’t a hard an fast requirement that the author of that opinion was tasked with enforcing. It is a hard and fast requirement for rank-and-file examiners today because of a rule, at least in so far as the structural details are described in the actual claim.

    Do you also lack an understanding of the rules an observer? Or are you more easily able to read them than your fellow, anon, does?

  2. 300

    “I showed you four places that say otherwise”

    Please be so kind so as to repeat these “places” “that say otherwise”. Enumerated if you don’t mind, so I don’t miss any of the four “places”. Because I do not see where you posted these “four places”, nor do I see any “places” myself that “say otherwise”.

    “Have you even bothered to read the case Ex parte Good yet, 6?”

    Are you deaf or just hard of reading? I said I’d read it if you post a link. If not, I’m not going to bother, no. I don’t need to read a decision made a hundred years ago to readily understand the office’s current interpretation which is quite simple and based on the actual words of the rule we have today.

  3. 299

    didn’t even know what the rules said, much less their official interpretation, before this week

    LOL – says the guy who through out a case cite that proved he was wrong.

    Have you even bothered to read the case Ex parte Good yet, 6? It’s doubtful, because you just repeated the same error as you did before.

    saving only for conventional features” LOL – nope, I showed you four places that say otherwise (and you provided a case that also supports my view).

    It shouldn’t strain you too much – it’s about a single page (and likely less then the mess you just posted at 7:42).

  4. 298

    I am pretty sure that Malcolm thinks it means that nobody better kick out the soapbox from under him as he QQ s his widdle heart out about those nasty things called patents and anyone ‘foul’ enough to attempt to enforce them.

  5. 297

    If I write “carbon is an example of a halogen” in 100 different patent applications doesn’t make carbon a halogen.

    But it would mean that super examiners, er, um, Article 1 judges will cite to it as if it does.

    Just the kind of people that I want re-interpreting case law…

    (not)

  6. 296

    You want some civil discourse? Go upthread and defend the claims at issue in this thread
    How is defending claims that aren’t even mine based upon your demand a prerequisite for civil discourse? Do you even know what the term means?

  7. 295

    But a lot of them are
    Hardly — not even close.

    You don’t know what a strawman is.
    ha ha … you are basing your arguments on “telling Grandma that her robot car needs air in the tires, using a handheld device” and other absurd examples — not on the matter at hand. Resorting to outlandish examples is a straw man argument.

    name calling and insults
    Too funny … you BY FAR lead this blog in engaging in name calling and insults.

    That’s because you’ll keep appealing until you get your j*nk claims or the Federal Circuit slaps you down.
    Appeal bad decisions is what any attorney should do — for any type of claim.

    What matters is a [valid] granted claim
    When you learn that lesson, you’ll be a better attorney. The law is what the law is. I’m not in a position to change it. However, I will aggressively work within the framework of the law to get allowed claims. If you aren’t doing that, then you are a poor advocate for your clients.

    You need to be willing to write claims that you absolutely h ate if it is in the best interest of the client. This is why I personally don’t care what the law is … I just want to know what the law is. I need certainty on what is OK and what is not. This allows me to get valid and allowed claims. What I detest is uncertainty in the law created by either the USPTO or the Federal Circuit.

  8. 294

    every applicant (including IBM) was defining the mediums in their specifications as explicitly including signals
    Don’t confuse patent attorneys (often-times poorly) trying to enable a particular form of a claim (e.g., “a signal embodied on a carrier wave”) that was BLESSED by the USPTO with an actual redefining of the technology.

    Terms are interpreted consistent with the meaning those skilled in the art would give them. Poorly-written boilerplate (in a few applications) does not change that meaning.

    If I write “carbon is an example of a halogen” in 100 different patent applications doesn’t make carbon a halogen.

  9. 293

    That’s funny, your bro, (or actually probably just your other psuedonym) anon thinks that the same structures do not function differently

    The simple point (that I thought a simpleton such as yourself would get) was that a 10d nail will hold up a 3 foot 2×4 whereas the same 10d nail would not hold up an engine block. As such, the fact that a computer program loaded onto a PC doesn’t work the same as a computer program loaded onto an Apple shouldn’t be so surprising (although many times, they will work the same).

  10. 292

    Any structural detail that is of sufficient importance to be described should be shown in the drawing
    Should be shown? Not a hard fast requirement.

  11. 291

    “Get your p@nt1es out of a bunch, 6 – insert rule in my post in place of law.”

    Ahh, so you really meant I was ignoring the rules upon which this entire conversation is based? I guess you can assert that if you like, but I’m not ignoring them at all.

    “Then actually read the case you cited ”

    I will read it if you’ll save me the trouble of looking it up. Post me up a link. Again, the quote was put there on a lark, not because of some overwhelming substance.

    “btw, it does not support your “two rule” post above at 2:48″

    Regardless of whether that case does or it doesn’t, the “two rule” “post”, aka the “two rule” “interpretation of the rules”, is the official interpretation and it isn’t going to be changed anytime in the next century. I know this whole “rules” thing is new to you, and you’re unfamiliar with them, and also totally convinced that there is some way out of drawing out a CRM product, but there are some things about the rules that aren’t going to change anytime soon and those are not valid things for us to waste time talking about. And that “two rule” interpretation is one of them. As a reminder, I told you what the “out” is, and it is to get the office to interpret the claim as a method.

    I also know that you feel like you’re on totally solid ground what with the same old rehashed arguments that other people have made before you, and the fact is, people who are paid large sums of money to make those same arguments aren’t having much luck, and keep in mind, we’re talking on the interwebs. Most of the time in real life it’s rather easy to walk a person through the objection and why their arguments have been considered but are not considered either a. relevant to the grounds of objection or b. a misinterpretation of the rule. I have yet to find any attorney who disputes the interpretation of the rule beyond his initial argument because the interpretation is rather set in stone around the whole office and is not really up for debate, we regularly require that claimed features be added to the claims regardless of whether or not they’re essential to the understanding of the invention or not. That is a simple fact of daily life, and it is predicated on the “two rule” interpretation being the official interpretation. But I look forward to the day when one of them petitions, and it is denied, and I may lol.

    “Notwithstanding that, you still cannot have two rules that contradict each other, as you are attempting to do.”

    They do not “contradict” one another. They are separate rules, one is for when drawings are required, and the other is for requiring certain features to be in the drawings when they are provided, specifically it notes that the rulemakers (back in the day) want to see the claimed features.

    There isn’t much else to say on this matter, no attorney I’ve spoken to about the matter presses any further with this whole disputing whether the rules are separate beyond an initial coversation starter for conversations I quickly end by sharing the official interpretation with them. And nobody has even ever brought up that they are supposedly “contrary” when they’re certainly not at all “contrary”. The one says you need to provide drawings when they’re necessary for the understanding of the invention. That’s fairly simple, right? We allow people to submit drawings even when they’re not strictly required, and most folks do, if for no other reason that to give themselves robust written description for later. The other rule says that the drawings you provide must show all of the claimed features saving only for conventional features. Also, very simple. They’re not at all contradictory, and not at all complicated. To assert otherwise is to either not understand the rules and/or what they’re there for, or to simply be convinced that there is a conclusion, aka you don’t have to submit drawings for CRM products, to which whatever interpretation you’re going to take today must lead. Again, this is like MM notes with the creationists, then first find their conclusion, and then shape their interpretations of the premises to fit the conclusion. This thread right here is excellent evidence of you doing just that actually, I just realized.

    “I’ve got more beatdown for you, if you want it.”

    Oooooo, man I’m scereded o ur beatdownin’s oh noes, not that!

    Look listen unless you have something other than these preposterous interpretations of these very simple rules I’m quite done. I’ve talked to people (in the office and outside attorneys) with much more experience in dealing with these sorts of cases on several occasions now and not one of the attorneys has successfully overcome an objection to the drawings without amending to a method. I simply don’t have any more time to fiddle with a random bum that didn’t even know what the rules said, much less their official interpretation, before this week.

  12. 290

    Get your p@nt1es out of a bunch, 6 – insert rule in my post in place of law.

    Then actually read the case you cited – btw, it does not support your “two rule” post above at 2:48. Next time you throw in something ‘just for lol’s, make sure it does not wreck your position, because the LOL’s are on you.

    Notwithstanding that, you still cannot have two rules that contradict each other, as you are attempting to do.

    I’ve got more beatdown for you, if you want it.

  13. 289

    First you need to brush up on what rasterization is.

    link to en.wikipedia.org

    The 3rd limitation is about process of coverting a slide show (think power point presentation) that is supposedly running on a compooter that is supposedly “configured for” “coupling” to a different program (think power point talks to another program) such that it extracts contextual data from a slide (think it extracts “hey this is a picture of a circle”) in the slide show in the “native format” to thus covert the slide to raster imagery for use in the other program and to also place a text from the “contextual data” in proximity of the raster imagery. Don’t ask me how a process is “configured”, I guess you set some options for your computer or something is what they mean.

    Bottom line, they want to take a description of a picture or other vector graphics object, and also a rasterization of the picture or other vector graphics object, and then send both to another program such that they can display the rasterized image along with a little snippet of the discription. Think taking a vectorized circle in powerpoint with a description “hey this is a circle” and then rasterizing the vectored image so that it is now dots instead of vectors, and then displaying those dots along with “circle” in another program.

    He messed up his drafting in a few places though, the claim should have been objected to for informalities.

  14. 288

    Ok so to be clear, you have no specific “law” that I’m “ignoring” and you’d rather change the subject and talk about “my quote”.

    First, I wasn’t aware that “my quote” “follows limitations”. It is just a quote. Nothing more. Quotes don’t “follow limitations”, they’re just words spoken or written by someone. To be sure, the quote from the MPEP I put in just for lols. I’m not staking my assertion upon the case or the quote or even the MPEP, I just tossed in the quote for lols.

    I “state my assertion” or rather, irl, I “make objections” based on the rules. In this thread I have explained to you why nearly every, if not every, B claim case should have been objected to and you have simply decided that it wasn’t worth responding to anything much I wrote about the actual rule I make this objection under other than to say that the rule supposedly doesn’t apply because “that too is modified by: detailed illustration is not essential for a proper understanding” or some such. Thus either implying that the part from the previous rule carries over into this rule, or that you have difficulty in reading all of rule 37 CFR 1.83(a) because the first sentence thereof is quite clear and is not modified with anything even approaching “detailed illustration is not essential for a proper understanding”. Indeed, your position is counter to the official interpretation of these rules, that they are plainly separate rules meant for different things and that is how they are applied all over the office, on a day to day basis.

    Your tar d-mind gets so easily distracted by going off about some “law”, or a “quote”, when we’re just talking about rules. If you have nothing further to say about the actual rules which I base objections to drawings on, then I will simply note that I’m bored of discussing this with you and take my leave. There are actual people in the world facing such objections and they’re doing no better than your “but, but, but that rule is modified by the one before it and but, but, but let’s change the subject to lawls, or to quotes instead!” rational for me waiving the rules would do for them. And the kicker is, I get paid to discuss this with them. And they’re getting paid more than you to come up with arguments.

  15. 286

    LOL – your quote is from the MPEP and follows the limitations that I have already supplied to you.

    Furthermore, did you even bother to read the case from over one hundred years that you are staking your assertion to?

    LOL – Massive 6 FAIL.

  16. 285

    Alright anon, what law am I “ignoring” and why is that “law” relevant to this matter which is completely divorced from “law” and instead involves “rules”?

  17. 284

    Hmmmm, now that you’ve finally read“… ?

    6 – the fact that you are finally getting to a post that proceeds all of your posts today, points out exactly who has reading issues (and that would be you).

    that as an outsider

    LOL – you still are acting like I am someone that I am not. This is part of your reading problem: you rely way too much on (incorrect) assumptions.

    And you are still ignoring all of the law I provided to you.

    Try again.

  18. 283

    “6, that you are relying on 37 CFR 1.83(a)’s use of ‘must,’ as that too is modified by “detailed illustration is not essential for a proper understanding.””

    Is that so?

    Hmmmm, now that you’ve finally read the whole thing I’ll tell you what I see, and we can see if you agree with my assessment (which actually happens to be the official assessment as well). I see two different rules.

    One rule states when a drawing or some drawings need necessarily be present in a case. In most cases with b claims we already have some drawings, so we need not further concern ourselves with it in those cases since we already have drawings. This rule can be used to force them to provide some drawings, in cases where there are no drawings at all (even the tar ds in the softwaftie arts like to see “flow charts” etc.), but that is beyond this discussion.

    The other rule states what must be shown in the drawings, regardless of whether or not the applicant was required to submit a drawing at all in the first place under the previous rule. This other rule is applicable to situations where either a. the office is requiring the applicant to submit some drawings under the previous rule because he forgot to file any drawings or b. where drawings have already been filed but where those drawings fail to show a certain something. I think you and I will both agree on that. And as I already noted, with all the B claims before me, and in pretty much all of them that I see, drawings are already furnished, so we need not concern ourselves with a right now with the a situation where we’re requiring a drawing where there were none before (though in an extended discussion I can lay out for you why the situation a can also be remedied). Thus we look to the b situation above, and every single Beauregard claim I’ve ever laid eyes on contains subject matter specified in the claims and not shown in the drawings they provided. I’m sure you can guess what they usually leave out. Thus, objection. Keep in mind that this is the exact same rational that we use day in and day out to require drawings in other cases, we’re not making some sort of special exception and I’m certainly not “twisting” the rule. We require all features specified in the claims to be shown in the drawings, it is that simple, and we do this day in and day out, regardless of whether or not the feature “can be seen by the naked human eye” and regardless of whether or not the depiction is required to understand the invention. Nanotech cases get these objections just the same as bicycle cases I see no reason to give B claims a pass based on the “naked human eye” thing if we don’t give nanotech a pass as well. And cases where the detail is not at all relevant to understanding the invention still get this objection just the same. So I see no reason to give B claims a pass on that prong either.

    In the end anon, and to complete your edumacation on this, the reason people have been getting away with not showing these details is not because they’re “not necessary to understand the invention” it is simple claim construction. The examiners reviewing these things start to think of them as either a. a method claim, or b. some sort of bizarro method/product hybrid claim (which would need to be 101’d btw, but most of them that adopt this construction are too ignorant to know this). So they give them a pass under the traditional exception to the drawing rules for method claims, specifically we don’t usually require drawings for methods unless they’re absolutely necessary, and we don’t require drawings for each step unless they’re absolutely necessary, regardless of what the rules say, because methods, and their steps are necessarily incorporeal and are not visible to the human eye, or microscopes, or anything because they are incorporeal. Since the examiners interpret the claim as to a method, they simply say that the applicant need not show his method/steps under our traditional exception to the rule because methods and steps are incorporeal.

    I realize that as an outsider you may not a. believe this or b. know this because you have not asked the ta rds examining in these “arts” why they don’t object to the drawings. But, again, I do not subscribe to the “method” construction, and neither do outside attorneys enforcing these things, and neither do you. To you, they contain “structure” and they are product claims (aka a component of an apparatus), plain and simple. (one panel on the CAFC deciding differently that they’re methods for the purposes of applying 101 in Cybersource not withstanding) However, if the applicant, clearly and with reckless intent, amends the claims to be a method, or perhaps even if they decide to put clearly on the record that his claim is to a method, or then I will oblige in withdrawing the objection under the traditional exception for methods.

    In any event, a quote you might like, recalling all your arguments about structure:

    “Any structural detail that is of sufficient importance to be described should be shown in the drawing. (Ex parte Good, 1911 C.D. 43, 164 O.G. 739 (Comm’r Pat. 1911).)”

  19. 281

    Ned,

    You are being purposefully obtuse, and such behavior is uncalled for.

    Use a little intellectual honesty and see that you can easily derive ‘abstract’ from common construction techniques (here, parallel construction).

    You are being a bit like 6, who continues to avoid a discussion on the ladders of abstraction, as he knows that his ‘theory’ cannot stand up to the level of scrutiny that such a discussion would entail.

    There is a clear parallel between the top rung of a ‘ladder of abstraction’ and the words used hers: fundamental and original. With such things as fundamental and original, if they are blocked, you can climb the ladder no further. ANY rung lower than that still leaves room to climb, and should not be subject to some ninny’s unsupportable made up view of what is ‘abstract.’ It is ONLY on the top rung that the danger warrants the use of the judicial exception**.

    As such, you evade the discussion that 101 Integration Expert asks of you – as you have evaded discussions that I have attempted to have with you.

    **leaving for a separate discussion whether such exception at all comply with the constiutional directive of who has authority to write patent law, and the questionable nature of making things up as an ‘implicit’ reading of what Congress has written.

  20. 280

    Comedy routine?

    6, the only comedy routine here is by you, who refuses to recognize the actual law I have supplied, and insists on playing a game that does not work for you (heed my post about how law works).

    I have provided four sections that support my position (why are you kicking up dust about any support for you – you have provided none at all, and I have made that perfectly clear). Until you can come forward with even one that supports yours, we will go by what I have provided. Is that not fair? If you disagree, then please provide a substantive point that we can discuss.

    It is difficult to understand why you insist on playing your games and why you do not comply graciously with my request.

  21. 279

    “sorry 6 but your twist here would result in following one rule means violating another.”

    Rules, or are the “rule means”, that “violate” each other? Lol. Keep up the comedy routine anon. Rules, or even “rule means” do not “violate” each other. They’re just rules, and actual people must abide by them or violate them.

    “and pointed out that that part of the rule does not support you.”

    Did I ever say that it “supported” me? Then why would you bring it up? Keep reading until you find the bit that “supports” me.

  22. 278

    101, close.  But all it says is that a principle — in the abstract — is ineligible.  It really does not define what abstract is.  It assume that everyone knows what it is.

     
     
     

  23. 277

    can someone please tell me exactly what that 3rd limitation is?

    It’s no different than the usual “limitation” in a computer-implemented claim: it’s a description of some functionality that the claim drafter thought might be used to threaten someone with, should that someone successfully manage to market actual software with the recited functionality.

  24. 276

    “Also, a signal is not a medium.”

    You must be joking. Before Nuijten, every applicant (including IBM) was defining the mediums in their specifications as explicitly including signals. If you have been practicing, it hasn’t been very long. But thanks for playing.

  25. 275

    And don’t tell me, 6, that you are relying on 37 CFR 1.83(a)’s use of ‘must,’ as that too is modified by “detailed illustration is not essential for a proper understanding.”

    I have now provided four different parts of the MPEP, 6. How many have you?

  26. 274

    LOL – sorry 6 but your twist here would result in following one rule means violating another.

    Now if you ever want to understand law, you will need to realize that you cannot do that.

    Besides which, I already commented on the drawing rule further on about the ‘admits of illustration’ and pointed out that that part of the rule does not support you.

    Don’t be sad that I turned your ‘be a big boy’ line and (properly) used it against you. Take this as a learning opportunity: learn to understand law on more than you ‘should be’ and ‘want to’ feelings and beliefs.

    That is all that you have supporting your position. You cling so tightly and do so with no grounded cause in fact or law.

    As politely as you asked NWPA (and with far more factual and legal support on my side), I ask you again to let it go.

    Please comply graciously.

  27. 273

    One rule is not all the rules that you must comply with. You’ve got to comply with them all. Go ahead and keep reading them. You’ll get there, I promise, you’re a big boy now.

  28. 272

    Ned: “Night, let me agree with you that the Supreme Court has not made clear what it means by “abstract.”

    101 Integration Expert: “The legal definition of abstract from the Court is as follows: “A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.” Benson citing Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 507. ”

    So Ned, what’s so unclear about that? The reason you pretend not to understand the Courts legal definition of abstract is that you wish to invalidate all business methods and software inventions on the grounds they are abstract, but you can’t do that because those processes do not meet the Courts legal definition of abstract. So you feign ignorance. This is also why you refuse to answer the question; Why is Versata’s claim as a whole a legally abstract intellectual concept in the form of a a fundamental truth; an original cause; or motive? You are intellectually backed into a corner with the law and the only way out is to be honest and admit defeat.

  29. 271

    I finally read the case. What a waste of time and effort, on everyone’s part.

    I’m a little surprised nobody has commented on claim 1, even though it was not the focus of the 101 discussion:

    1. A system for converting slide show presentations for use within non-presentation applications, the system comprising:
    a computing system with at least one processor and memory;
    a slide show produced by a slide show presentation application and stored in a native format; and,
    a slide show conversion process executing in the memory of the computing system and configured for coupling to a non-presentation application and programmed both to extract contextual data from a slide from said slide show in its native format, to convert the slide in said slide show to raster imagery for use in said non-presentation application and to place a text form of the contextual data in proximity to the raster imagery of the slide show.

    I get that this an apparatus claim, and I understand what a computing system with a processor and memory is. I also understand that the “slide show” limitation is an arrangement of bits stored in memory. But can someone please tell me exactly what that 3rd limitation is?

  30. 270

    LOL – and this rule says what I said it said.

    In other words, you were wrong. Just admit it like a big boy, and please (finally) let it go.

  31. 269

    “why are you so urgently wanting to move on from the rule that says what I said..?”

    Because there are more rules that say other things…?

  32. 268

    And don’t tell me 6 that you are assuming that ‘admits of illustration’ bears in your favor (hint: it does not)

  33. 267

    LOL – you sidestepped his criticism of you Malcolm.

    Funny, it was the same exact criticism I had.

    Where is my thanks, you ingrate?

  34. 266

    LOL – 6 why don’t you hit Malcolm over the head – he cannot handle the subtleties.

    (he cannot handle being hit over the head either, but it is more fun)

  35. 265

    LOL – why are you so urgently wanting to move on from the rule that says what I said..?

    Do you understand that part of the rule?

  36. 263

    Ron This thread … pertain[s] only to “signals” and 101 patent-eligible subject matter.

    Well, that’s not really for you to decide. We’re talking about a set of pending patent claims that should never be granted. The PTO has given one reason. I’ve given mine. You haven’t yet given yours (perhaps that’s something you choose not to do, for some reason … Maybe you think the claims are just fine?)

    I’ll address your other comments later (in the thread below you’ll find extensive comments about signal eligibility and the PTO’s position regarding claim language that encompasses signals). For now, the weekend calls. I do appreciate that you took the time to comment again.

  37. 258

    “He does.”

    But does he know why you’re “a victor”? Probably not, I drop hints all around him all the time but he doesn’t pick up on them.

  38. 257

    “If you had, then you would have realized that a drawing is not actually required, as the structure may not be seen by the human eye,”

    Well then why do we insist on drawings in nano-tech cases? None of that stuff “can be seen by the human eye”, yet we always require drawings.

    “MPEP 608.2”

    That is not a rule. Again, you need to actually read the rules. I know you’re too ignorant to understand what the patent rules are, but here’s a hint, they start with 37 CFR.

    I really do enjoy watching you learn as you go along, grasshopper. But instead of simply showing us all that you don’t know w t f the patent rules are, why don’t you just go ahead and address what I asked you above?

  39. 256

    MM, I am sorry for the delayed response. I see that much was clarified during the exchanges above. You do admit that you are raising a 103 issue. This thread and my comments above pertain only to “signals” and 101 patent-eligible subject matter. Perhaps if you start another thread about the logic of lodging the printed matter doctrine in section 101 rather than section 102, I may be inclined to comment on why such logic is inappropriate as it introduces potential conflict between the “patentable weight” approach to validity that inheres in the printed matter doctrine and the “claim as a whole” approach to validity that governs contemporary patent-eligibility doctrine.

    You have yet to address the 101 question raised above without conflating it with 103 issues.

  40. 255

    SCB,

    The very second thread in this multi-hundred thread touched on key considerations that are mirrored in your post at 4:22.

    Given that “physical” and “tangible” are no longer on the table, and that the remaining argument centers on “transitory,” several comments can be made about the lack of discussion on these factors:
    1) This is above Malcolm’s head, or he does not want to risk attempting anything substantive on these points at the risk of making yet another agenda-torching admission.
    2) 6, the erstwhile physicist has been strangely quiet, and only hinting at the supremacy of my views on this topic.
    3) Ned, the other one who has debated on this in the past is likewise absent from discussing the ramifications here.
    4) Leopold insists on only making posts trying to take shots at me (in apparent defense of Malcolm).

    So what to make of the CRpfest? Hmm, the last time we saw so much dust-kicking was when Lemley guest hosted a thread and was severely criticized. Malcolm jumped into that fiasco with both flaming feet and tried as hard as he could to railroad the discussion.

  41. 252

    An observer,

    I owe you a coke, and 6 owes you an apology. There was no call for him to be so rude to you.

  42. 251

    And your per usual comment is completely baseless. There is no need to be insulting, as my post is perfectly in line with proper understanding of the discussion.

    Why are you so @ngry at what the law and the facts support?

  43. 250

    6,

    Did you re-read Alappat?

    If you had, then you would have realized that a drawing is not actually required, as the structure may not be seen by the human eye, and drawings are only ‘required’ under MPEP 608.02 when “The applicant shall furnish a drawing where necessary for the understanding of the subject matter to be patented“, and drawings at that level would not aid in the understanding of this art field.

    Let.
    It.
    Go.

    (and letting it go also means letting go of the snide comments like “pathological” which have no place under the controlling law, and only reinforce your belief and desire, without support in fact or law.

    Thank you for your prompt and cheerful compliance.

  44. 249

    So applicants must affirmatively disclaim signals or transitory waves if the subject matter could be imbedded in signals/transitory waves?

    It seems if a patent issued on these claims w/o actually including this limitation in the claims, the limitation would be implied since trying to enforce the issued claims in a way that covered signals or transitory waves would presumably risk invalidating the patent under Nuijten. Either way, should software patent eligibility really be determined by whether the software affirmatively disclaimed signals? Where does the rule say this?

    Nuijten never made much sense to me. If we agree that signals etc are tangible, then in certain applications why don’t they constitute a process, manufacture, or even composition of matter?

  45. 248

    “The exceptions to the printed matter doctrine”

    What do exceptions to the PMD (a doctrine about stuff under 103 ahem) have to do with all B claims going down under 101 (a separate statute if you will recall) if we go ahead and do away with the current formalism that we use in interpreting them? That is, if we do away with the formalism, elevating the form of the claims, aka the skill of the draftsman, over what the claims are actually for. Because you keep bringing up the “exceptions” to the PMD doctrine dealing with 103 in discussions about 101 like all the time now anon. Why is that even relevant to a 101 discussion? Lay it out for me ok?

  46. 247

    The rules don’t distinguish between whether one is needed or not for products. Check them rules brosef.

  47. 246

    ” Regardless, YOU MISSED THE WHOLE POINT, which was the identical structure acts differently depending upon the context it is used.”

    I thought you just said in a previous post that identical structures do not (act) function differently? Could you please pick a postion?

    “The USPTO agrees, the Federal Circuit agrees”

    But will the USSC agree? Nah! And, you might should add that only some in the USPTO “agree”.

  48. 245

    But a lot of them are
    Hardly — not even close.

    You don’t know what a strawman is.
    ha ha … you are basing your arguments on “telling Grandma that her robot car needs air in the tires, using a handheld device” and other absurd examples — not on the matter at hand. Resorting to outlandish examples is a strawman argument.

    name calling and insults
    Too funny … you BY FAR lead this blog in engaging in name calling and insults.

    That’s because you’ll keep appealing until you get your j*nk claims or the Federal Circuit slaps you down.
    Appeal bad decisions is what any attorney should do — for any type of claim.

    What matters is a [valid] granted claim
    When you learn that lesson, you’ll be a better attorney. The law is what the law is. I’m not in a position to change it. However, I will aggressively work within the framework of the law to get allowed claims. If you aren’t doing that, then you are a poor advocate for your clients.

    You need to be willing to write claims that you absolutely h ate if it is in the best interest of the client. This is why I personally don’t care what the law is … I just want to know what the law is. I need certainty on what is OK and what is not. This allows me to get valid and allowed claims. What I detest is uncertainty in the law created by either the USPTO or the Federal Circuit.

  49. 244

    Maybe you can share them with everyone and we can determine whether they were truly impacted or not
    As I mentioned earlier, you are always asking for examples yet are never willing to provide them yourself. So typical …..

  50. 243

    I’d like to see some drawings of these allegedly new structures if you don’t mind.
    A specification is written for one skilled in the art … not an id iot examiner. One skilled in the art doesn’t need to see the drawings.

  51. 242

    Alright so let’s say I’ve let it go. And I totally agree with the pathological statement you’re making anon. Walk me through how “configured to” being “structural” language somehow gives an examiner free reign to not require a drawing of the structure of the product, as per USPTO rules, just like the rules require for all products. Or did you not understand the post that you were responding to (as per usual)?

  52. 241

    Take a look at who started the CRPfest – that’s right, it was you.

    Uh, on this thread the “CRPfest” appears to have been started by you, at 8:46 PM on August 21. That was the first gratuitous personal attack, and was followed up by another unprovoked drive-by insult at 8:59.

  53. 240

    Of course, this thread has gotten pretty long and stale as a direct result of

    LOL – typical accuse-others-of-that-which-you-do Malcolm.

    Take a look at who started the CRPfest – that’s right, it was you.

    But please, continue your spin,[shrug], and stand by routine.

  54. 239

    You don’t know what a strawman is.

    LOL – more spin from Malcolm. You claimed that before and stopped when I started supplying definitions.

    As I recall even your cheerleader supplied a definition when in one of your ‘moments,’ you could not recall what the term ‘effectively’ meant.

    But please, continue to spin, [shrug], and stand by.

    and every time you immediately slither down to the name calling and insults

    Be like Malcolm: start off with name calling and insults…

  55. 237

    LOL – and maybe we can see some of your ‘perfect’ claims that you have written Malcolm? Aren’t you all about helping others write such wonderful patents?

    I sense a change of eagerness…

  56. 236

    I am the victor here, 6, and your epmty threats of exposing who you think I am are quite meaningless.

    I would much rather see the promised discussion on the ladders of abstraction. But we both know why you refuse to go there.

  57. 235

    6,

    You need to go back and re-read Alappat once more. But I have to kindly ask you: why do you not let this go? The topic has graced many threads on this blog and even Malcolm recognizes that ‘configured to’ is structural language. The case law fully supports this. Why do you repeatedly challenge existing law armed with nothing more than your beliefs and desires? Law and facts have been supplied to you. They still apply. What do you hope to achieve, when all you are going to do is ignore the still good facts and law? Let it go.

  58. 233

    Insults?

    LOL – how exactly did I insult the curious-as-anon poster?

    As to ‘think I understand,’ where do you think I do not understand, as you impliedly state? Come now Malcolm, as this topic is one of your greatest failures, an answer from you on where you think I do not understand this topic should be most ‘enlightening.’

    As to ‘not willing to answer,’ the poster obviously does not have a grasp of the subject matter, and a straight answer will do him less good than a little research on his own. Maybe you heard of the Socratic Method once upon a time. So instead of trying (and failing) to impugn me, perhaps you would like to actually make a comment with some small amount of substnative value?

    LOL – not likely.

  59. 231

    LOL at you Malcolm: you show the truth of my post, and yet claim it to be a 1ie.

    You have lived your spin-[shrug]-stand by mantra for so long, you can no longer tell which end is up.

  60. 230

    Tr0 llb0y: check into Lemley’s connections with ‘Big Data.’

    Please tell everyone what these alleged “connections” are, Tr0 llb0y, and explain to everyone how those connections account for Lemley’s alleged habit of “telling lies”.

    We’re still waiting. I’m pretty sure Gene Quinn would like to check your “work” here. What’s the delay, Tr0 llb0y? Should be easy for you to let us know. It was easy for you to spew the accusation in the first place. What’s the problem, exactly?

  61. 229

    Oh and yeah, that later part of 2011 and the beginning of 2012 was his alleged “bum” period. So he had to pass the time somehow, like trolling people here.

  62. 228

    “(I also wonder when your manager ”

    He was either let go or quit the corporate world a few years back. He then alleges on a personal site that he spent a few years as a “hobo” or “bum” I can’t remember which, though I can’t be sure that he wasn’t just copying my “story” of being a homeless guy on the side of I-95 since he really is quite obsessed with the things we discuss here. Even so, I don’t think him mom is looking out for him, or else we wouldn’t have to put up with him.

  63. 226

    “Not a requirement.”

    Actually it is. I’d like to see some drawings of these allegedly new structures if you don’t mind. Product claim -> drawings please.

  64. 225

    observer: You don’t even attempt to engage in a civil discourse anymore

    You want some civil discourse? Go upthread and defend the claims at issue in this thread, if you think you are up to that task. Or just admit that they are j*nk. I’m happy to “civil discourse” with you or anyone else on that topic. Of course, this thread has gotten pretty long and stale as a direct result of your buddy Tr0 llb0y doing his usual drive-by insults. Somehow Tr0 llb0y doesn’t seem to bother you at all. Hmmm. I wonder why that is …? Maybe you’re used to smelling that really strong cologne he uses from the time you two spend over at Gene’s echo chamber.

  65. 224

    observer: you think that all software patents are akin to “telling Grandma that her robot car needs air in the tires, using a handheld device,”

    No I don’t think all of them are like that. But a lot of them are. The one at issue in this thread is a lot like that. It’s just recycled j*nk with the term “slide presentation” sprinkled in, as if that possibly makes any difference.

    Anybody who continually has to rely upon strawmen to support his opinion

    You don’t know what a strawman is. Just like your little bro’, Tr0 llb0y. Both of you seem to believe that any argument or point that you have difficulty rebutting or that you find challenging is a “strawman.”

    f your opinions had any substance to them, I would give them more thought.

    It doesn’t matter how much “substance” my opinions have, “observer”. We’ve spoken with each other before and every time you immediately slither down to the name calling and insults about how “silly” anyone is who disagrees about the awesomeness of granting patents on computer-implemented j*nk.

    don’t care what you think about what is patentable or patentable at the USPTO.

    Of course you don’t. That’s because you’ll keep appealing until you get your j*nk claims or the Federal Circuit slaps you down. That’s how you guys operate. The validity doesn’t really matter. What matters is a granted claim and a naive stooge that you can threaten with your j*nk claim.

  66. 223

    my comment was directed to how minor the decisions of SCOTUS and the Federal Circuit have been in impacting any claim scope of consequence. They have impacted perhaps a tiny fraction of 1% of patents.

    Right, the bubble keeps growing in spite of the “patent h*ting” Supreme Court decisions that patent puffers like Gene Quinn and Kevin Noonan tell us are going to “destroy” entire industries. In part, that’s because at least some judges on the Federal Circuit and the PTO continue to coddle the softie woftie and business method patentskammers regardless of what the Supreme Court says. In part, it’s due to rank incompetence of the part of the softie woftie attorneys and their enablers at the PTO.

    As for how much of your claims were “impacted”, of course, we’d have to look at the claims. Maybe you can share them with everyone and we can determine whether they were truly impacted or not.

  67. 222

    Tr0 llb0y: You ask a question that has already been answered all the while ignoring that answer.

    Translation: “My script doesn’t permit me to answer that question so I will just l i e, as usual.”

  68. 221

    Tr0 llb0y: Do you want to take another stab at the understanding of that great word: anthropomorphication?

    Do you still think that machines really do think?

    Do you still think that beating your wife is a great idea, Tr0 llb0y?

    the ledger shows how deficient you are

    The “ledger” shows that you are a path0 l0gical l y i n g pr*ck, Tr0ll b0y.

  69. 220

    Everything about this topic, from the opinions to the decisions to the comments on this board, evidences such a profound ignorance of first principles that it’s not even worth my commenting any more.

    I leave you with something more interesting to consider–a quote I found, in light of the impending divorce of a friend, whose wife is a nutjob:

    “Love: a burnt match skating in a urinal.”

    -Hart Crane

  70. 219

    MM

    I’m assuming you missed this question I asked up thread

    I understand you object to the information processing software claims. Does that objection extend to all software claims, for example those that control car engines? If you think that such are patent-eligible do you have an issue regarding such things being claimed as signals?

  71. 218

    Tr0 llb0y: the force necessary to carry the true distinction that the great word of anthropomorphication carries.

    Sounds like Tr0 llb0y took too many of those blue pills this morning.

  72. 217

    No paranoia Malcolm

    It’s too early to tell if Ron is paranoid like you, Tr0 llb0y. Let’s wait and see. Maybe you can drop him a line and let him know that his input here has been requested. You two are good buddies, aren’t you?

    Right, Ron?

  73. 216

    Tr0 llb0y: I suggest that you research the exceptions to the printed matter doctrine in order to understand the context of the current legal discussion.

    LOL. As usual, Tr0 llb0y thinks he understands something and insults another commenter, yet he isn’t willing to answer the straightforward question applying his alleged knowledge to a very normal fact pattern.

    What’s the matter with Tr0 llb0y? He reminds me of a certain kind of Repu kkke politician who is ashamed to go on the record about how much he worships the fetus and how little respect he has for women. You know: the kind that has a chance at getting elected to the Senate, as opposed to the other kind. In short, an incredible l y i n g t 0 0 l.

  74. 215

    Here’s the question again. My, how people do struggle with the simplest of things:

    do you think that under 103 I should be entitled to a claim that recites a “new” kit that differs from an old kit only by the inclusion of new set of instructions

    Note: it’s a kit. And it’s the usual kit for a person and not a robot. The instructions are the usual instructions, printed on a piece of paper in both the old kit and the “new” kit (i.e., the old kit with the “new” instructions). And we’re not talking about 101. We’re talking about 103. I apologize if any of this wasn’t clear. Also, we’re on planet earth, in the United States, in case anyone is confused about that as well.

    So, under Section 103, should someone be entitled to a claim that recites a “new” kit that differs from an old kit only by the inclusion of new set of instructions. If you think it depends, then your answer is “Yes, unless …” or “No, unless …” Be clear about what makes the diference.

  75. 214

    Below, Malcolm boldly and baldly proclaims:

      “Software, of course, isn’t responsible for… its “modernity.””
      .Let’s put Malcolm to his word and place him in a modern world that is completely devoid of software.

      Prof Crouch, are you up for that?

      Malcolm, we will miss you…

      …not.

  76. 213

    Leopold,

    How nice of you to aim at me yet again, while not noticing that some the ‘anon’ comments are not mine and the ones that are – are in response to the CRPfest from Malcolm.

    You feel the urge to comment on ‘literal’ while remaining silent on Malcolm’s butchering of copyright/patent protection and the notion that software has nothing to do with the real world’s modernity…?

    Very curious indeed.

  77. 212

    … a literal diarrhea of 30,000 word mewling QQ fest …

    That’s funny. Except that I don’t think you know what “literal” means.

    17 of the last 20 posts, anon – that’s a new record, isn’t it?

    I wonder when Dennis is going to give his annual update on your posting rate? (I also wonder when your manager [or mom] is going to figure out what you’re doing all day.) As I recall, it was somewhere around 25 comments per day for the first 8 months of 2012. I bet you’ve outdone yourself this year. Onwards and upwards!

  78. 211

    And I would be remiss in not reminding you that a certain recent Supreme Court case (hint: Myriad) had no problem at all understanding the crystal clear English as a second language arguments that I have used).

    Funny that, certain other posters who claim to be much more proficient have had a literal diarrhea of 30,000 word mewling QQ fest and still have not recognized the plain and direct meaning of the Myriad case.

  79. 210

    LOL – you and 6 are the ‘we?’

    The friends you keep…

    LOL – oh the stunning level of legal minds!

  80. 209

    You don’t even attempt to engage in a civil discourse anymore

    Did he ever attempt to do beyond a token 5%?

    And the profanity that is allowed to remain…

    C’est La Vie.

  81. 208

    As I mentioned, your use of an active moniker will most likely cause confusion to others.

    I suggest that you do not use the ‘anon’ moniker.

    There is no such “some combination of 101 and 103.”

    The law just does not work that way.

    Further, I suggest that you research the exceptions to the printed matter doctrine in order to understand the context of the current legal discussion. This is critical.

  82. 207

    Only a few dinosaurs like yourself haven’t figured out the law

    The sad thing is (sad for Malcolm), An observer, is that Malcolm is very much aware of what the law is, as he has volunteered admissions of knowing the controlling law of the exceptions to the printed matter doctrine as well as understanding that ‘configured to’ is structural language.

    And while the dinosaur comment has appeal (since it shows his dissembling use of bogus religious accusations elsewhere), the real issue here is that notwithstanding his admissions to law, Malcolm continues to pursue his agenda in a dissembling manner by purposefully trying to deceive others as to what the current law means. There is nothing wrong with being straight forward and trying to change the law in an intellectually honest manner – but that is expressly not what Malcolm is about.

    The fact that he cannot see this, and that he continues to post in the manner that he does, not realizing the hole that he has dug for himself – and his agenda – is rather amusing. It’s as if he really thinks that digging more furiously will get him out of the hole that he has dug himself into. I am more than happy to provide him with ‘better digging tools’.

  83. 206

    Sorry anon, I don’t follow your reasoning, is a piece of conventional paper with new instructions written thereon not denied patent protection (regardless of what the instructions are) because of some combination of 101 and 103. If not please explain what the basis for denying patent protection to such are.

  84. 203

    Software, of course, isn’t responsible for… its “modernity.”

    The only ‘attempt’ that can be made in the face of such denial of reality is the attempt to have you get into a line of work that does not cause you to have such severe cognitive disassociation from reality.

  85. 202

    I think that a distinction can be made between instructions for humans to carry-out and instructions for machines to carry-out.

    Too nice a response and misses the force necessary to carry the true distinction that the great word of anthropomorphication carries.

    Besides which, Malcolm is already on record as really believing that machines think.

    Further, you miss the fact that you are NOT ALLOWED to conflate 101 and 103, so there is NO ‘some combination of’ that you would desire. I recognize that you may be attempting to appease Malcolm and his propensity for WHATEVER legal thinking, but you would be incorrect to attempt to do so as you are attempting to do.

    (and for the record, the post at 4:05 am is not by me)

  86. 201

    if he shares your paranoia about “stepping in something

    LOL – more of the poor quality attempted spin of what others have said from Malcolm.

    No paranoia Malcolm, especially given the fact that the CRPfest you provide is used to put your own nose back into, why would I have any concern whatsoever of stepping into your CRP?

    Nice meltdown though.

  87. 200

    curious,

    If this is your post, it is not a bad question.

    Not sure though that you will get an answer from Malcolm. He has burned his agendas badly whenever he attempts to give answers in a substantive manner, and you are asking him to discuss real world concerns that are beyond his understanding (like the actual nature of the universe – the real universe).

    I just don’t see him giving any sort of straight forward intellectually honest answer to your question.

    (and for the record, the post at 4:00 AM is not by me)

  88. 199

    You ask a question that has already been answered all the while ignoring that answer.

    You brush aside the critical patent law difference between patent eligibility and patentability and ask a question again?

    And you don’t see the problem in that?

    Your attempted sardonicism fails gloriously when it is you that miss the very basics of patent law. Yes, this is a blog. About patents. But Malcolm, it is you that needs to ‘grow up’ and understand the conversation and it is you that needs to approach these things with some even minute level of intellectual honesty.

  89. 198

    What is difficult for you Malcolm to understand that you are trying to ply a strawman with a ‘purely mental process’ question?

    Do I need to start posting the definitions again for you?

    Do you want to take another stab at the understanding of that great word: anthropomorphication?

    Do you still think that machines really do think?

    And with you keeping on asking for answers when the ledger shows how deficient you are in giving them, what does that tell you?

  90. 197

    NWPA,

    Malcolm was shown a fork in the road: post with intellectual honesty or continue on his poor quality path and have his head handed to him.

    He chose the path that resulted in his mental breakdown.

    Not all that surprising, given that he insists on staying in a field in which the product of his labors is something that he detests. When someone who is anti-patent has an ethical duty to obtain the most expansive patent protection for their (real) clients, schizophrenia can be a real concern. It is plainly evident that he has lost his grip on this reality, as he goes so far as to say that software has nothing to do with the world’s ‘modernity’ when it is clear that software defines the world’s modernity.

  91. 196

    Just remembered … sensitive
    I don’t care what you think about what is patentable or patentable at the USPTO. I only care what the USPTO thinks and the Federal Circuit.

    If your opinions had any substance to them, I would give them more thought. However, since you think that all software patents are akin to “telling Grandma that her robot car needs air in the tires, using a handheld device,” I have little respect for your opinions. Anybody who continually has to rely upon strawmen to support his opinion has nothing of consequence to say.

    If I do respond to you, it is because you are a tool for me to express an opinion. If Dennis would implement the technology (implemented on other blogs), I would permanently ignore you.

  92. 195

    Curious,

    Do you mean the set of 4 am comments with the use of the ‘anon’ moniker above?

    My first thought is that you will engender confusion by using a moniker in that manner. I have not yet read the comments for content.

  93. 194

    Your comrades …. basically.
    You wasted what, 5 minutes writing a bunch of whi-ny rantings? That’s time you’ll never get back.

    You don’t even attempt to engage in a civil discourse anymore.

  94. 193

    You’re so awesome.
    I am that, thank you. However, my comment was directed to how minor the decisions of SCOTUS and the Federal Circuit have been in impacting any claim scope of consequence. They have impacted perhaps a tiny fraction of 1% of patents.

  95. 192

    contradictory and/or fraudulent assertions
    As the king of contradictory and/or fraudulent assertions on the blog, I guess you have a lot of experience with that.

  96. 191

    It’s the fact that it “functions” to “instruct” an old computer to do “new” things that makes that old media patentable.
    The media itself doesn’t instruct the alleged “old” computer to do anything. The instructions that are stored on the computer do that. Your problem is that you don’t understand the technology well enough to appreciate the differences.

    but you can’t be bothered to describe it because that would be so unfair
    Not a requirement. I only have to distinguish my invention from everything else (see 35 USC 112, 2nd). Your problem is you keep think the law requires more than it does.

    Right, and in every one of those examples you would never be permitted to patent the latter composition over the former unless you identified a structural distinction (as opposed to a “functional” distinction”).
    Wrong … yet again. The law is perfectly clear that functional distinctions are limiting. Regardless, YOU MISSED THE WHOLE POINT, which was the identical structure acts differently depending upon the context it is used.

    Do you really need to be taken by the hand from this point and given an explanation as to why an old storage media is unpatentable over a new storage media
    hahahahahahahaha First, if you are going to make a bogus argument, try not to flipflop your “old storage media” with “new storage media.” Second, new storage media (with a new program) is patentable over old storage media. The USPTO agrees, the Federal Circuit agrees. Only a few dinosaurs like yourself haven’t figured out the law.

  97. 190

    Oh well, I am signing off on this thread. MM: really? You resort to crude sexual jokes? I guess you have to argue the vile when you have no substance. Dennis edits me because I come after the rich and powerful. You malign the weak and powerless, so he doesn’t care.

    You see my tiny brained friends, the zeitgeist of the world plays itself out here in our little theater. Dennis has become the NSA. Malcolm the knife wielding madman that wants to burn baby burn. 6, oddly, appears to have grown and matured through the years. MM we all know has become a beaten dog that lashes out and snarls and bites. A whipped and beaten dog.

    Oh well….

  98. 188

    Well my answer will hopefully be in coherent English but doesn’t begin with a yes or a no I’m afraid. I would say that the answer depends on who the instructions are for. I think that a distinction can be made between instructions for humans to carry-out and instructions for machines to carry-out. For the former some combination of 101 and 103 should not entitle you to a patent regardless of what the instructions are for. With the latter I think it would depend on what the instructions are for as to whetehr 101 and 103 in combination deny you a patent

  99. 187

    MM

    I understand you object to the information processing software claims. Does that objection extend to all software claims, for example those that control car engines? If you think that such are patent-eligible do you have an issue regarding such things being claimed as signals?

  100. 186

    Kind of you, Ron, to put in an appearance and write what you did, especially given that we two are usually at loggerheads.

    Why does the EPO keep open the possibility of allowing patents on inventions manifested in signals? Of course, GATT-TRIPS requires patents to be issued in ALL fields of technology.

  101. 185

    we already figured out why you are allowed to post – it provides an abject lesson about how not to behave.

    Yes, I’m sure that’s it, Tr0 llb0y.

  102. 184

    That you have to ask me to explain shows how little you grasp these legal concepts.,

    Classic Tr0 llb0y. Yes, it’s everyone else’s fault that we can’t follow this genius and his crystal clear “arguments.”

  103. 182

    maybe if you keep on insulting people that don’t even post here, maybe someday you just might insult someone I am related to

    That would be a very special day for you, I’m sure. Maybe you should ask Gene to adopt you? Or better yet, Ray Niro. Then you could inherit a nice car, maybe.

  104. 181

    Same with this question:

    let us know what you think about patenting purely mental processes. Should they be eligible for patenting or not?

    What’s difficult about answering this question? Why would anyone (like Tr0 llb0y, for example) who spends an incredible amount of time insulting people on a patent blog (e.g., for “not thinking”) not care to answer that really straightforward question about patent law, and explain their answer?

  105. 180

    Just so there’s no confusion, here’s one of those “trick” questions that Tr0 llb0y just can’t answer for everyone:

    Should old signals containing new information be eligible for patenting?

    Real simple. Yes or no. Just answer the question and explain your answer.

    It’s easy to see why answering such a question honestly is so incriminating and embarassing. Right? Everyone agrees that this is really controversial, right? It’s like asking a guest whether they believe in a deity at a dinner table. Except this isn’t a dinner table. It’s a blog. About patents.

    So what’s Tr0 llb0y’s problem exactly?

  106. 179

    your taint is obvious

    Please ask your shrink what he thinks about your obsession with my “taint.”

  107. 178

    The archives have this in black and white

    Right. Just like the archives document your infamous arrest while hiding in your bathrobe in the stairwell of the elementary school “in black and white” and “no amount of your spin can change that.”

    Fun game, Tr0 llb0y. Can’t wait to see your next move. The suspense is really k illing me!

  108. 177

    you are denying the very modern world brought to you by software

    I live in a world that includes software.

    Software, of course, isn’t responsible for “the world” or its “modernity.”

    So please try again to explain what “reality” I’m denying, Tr0 llb0y, or retract your latest l i e and insult that you thoughtlessly spewed. Perhaps you might ask someone help you with your English. You seem to be struggling and it’s pretty sad to watch.

    I look forward to your second attempt.

  109. 176

    lay off the poor trick questions

    “Trick questions”? What’s the “trick”, Tr0 llb0y? Please let everyone know what you believe is “tricky” about this question:

    do you think that under 103 I should be entitled to a claim that recites a “new” kit that differs from an old kit only by the inclusion of new set of instructions

    Maybe Ron can lend you a hand, if he shares your paranoia about “stepping in something” should he dare to provide an honest, direct and clear answer to the question.

    Anybody’s welcome to the answer the question, for that matter. Anybody who isn’t afraid to express their opinion and their reasoning, that is. We know that Tr0 llb0y isn’t up to the task. Anyone care to distinguish themselves from Tr0 llb0y and show a little bravery? All you need to be able to do is write a sentence in coherent English, beginning with “yes” or “no”.

  110. 175

    You thought yourself somewhat knowledgable in the field of physics, right 6?

    There sure is a lack of that from the case concerning this post (and Nuitjen as well).

  111. 174

    The exceptions to the printed matter doctrine and the judicial comments toward ‘the art of the draftsman’ are completely unrelated.

    zero connection.

    Like you and the road. Can you even see the road from that far into the weeds?

    That you have to ask me to explain shows how little you grasp these legal concepts. I take it then that you have permanently given up on law school (but I see your charm school homework with your treatment of NWPA, but a tip for you there: don’t be ‘nice’ when you are so wrong about the law as it comes across as an undeserved level of condenscension that offends more than befriends.)

  112. 173

    To the one that lives in 1ies (that would be you and your admitted – [shrug] and stand by your ‘spin’ beliefs), everyone else must 1ie.

    You have spun yourself into such a conniption that you have no clue of reality.

    LOL – Gene’s son? Sorry no. But maybe if you keep on insulting people that don’t even post here, maybe someday you just might insult someone I am related to.

    How many billions of people are alive today? At least you have a good start.

    But I am sure you won’t mind that I won’t be holding my breath as you lose your (ever so slim) hold on sanity and continue your CRPfest.

  113. 172

    Pretty weak attempt to dismiss your actions when at the very time I informed you of what you were doing and gave you every chance to use that ‘fabulous’ English as a first language skill of yours to rescue your ‘pet theory’ from the bonfire of your making,

    But

    You

    Ran

    Away.

    The archives have this in black and white and NO amount of your attempted spin and prevarications can change that.

    And it was kind of fun to see your almost 30,000 mewling word meltdown. The more you struggle, the more obvious it is just how decrepit you are – struggle away Malcolm, struggle away.

  114. 171

    LOL – you cannot even face the truth even now.

    Hilarious.

    And your lowness slinks even lower. Who would believe how low you can go in your abject denial of reality.

  115. 170

    LOL

    You need a running list?

    You so wanted to admit it but you just don’t have the nuts.

    And even not admitting it, your taint is obvious as no one but you has pushed your (now very toasty) bogus [oldstep]+[newthought] ‘theory.’

    So answer the questions Malcolm:
    Why the dissembling?
    Why the incessant QQ ing and then doing it yourself?
    Why the hypocrisy?

    Answers!

  116. 168

    Who was right in the Myriad case and why?

    I was right that Myriad’s isolated DNA was not a product of nature. I was also right that their composition claims were j*nk (just as I was right about the method claims that the Federal Circuit tanked). And I was right about the fact that if the Supreme’s didn’t construe Myriad’s composition claims, they could reach any decision they wanted but that decision wouldn’t make any sense under any previously espoused legal theory and it would open up a can of worms that they will need to quickly fix. And that’s exactly what happened.

    I’m also told that a blind squirrel found a nut and proclaimed itself to be some kind of important figure in the history of the universe. The thing about diseased animals is that it’s usually best just to put them out of their misery. End the suffering, you know. It’s just sad to watch them struggle.

  117. 167

    Why did you QQ incessantly about svckpuppets

    It wasn’t just me who found your s0ckpuppetry revolting, Tr0 llb0y. It was everyone here, including Dennis. Cripes, even NWPA was pretty quick to distance himself from your major a–holery in that regard.

    go and get busted doing the exact same thing

    Busted? Exact same thing? My gob, you are a f*king t 0 0 l.

  118. 166

    you tossed your ‘pet theory’ on a bonfire that is still burning.

    Looks like Tr0 llb0y is spinning his Magic Insult Wheel again. One recycle fantasy after another! Wheee! Look at him go!

  119. 165

    There is even less meaning in your 8:56 post.

    Malcolm, it’s like you have lost all control.

    Well, what passed as control, anyway.

  120. 164

    the guy who never gives clear statements himself

    That’s a l i e, of course. Just read this thread. I’m very clear about where I stand. Crystal clear.

    And you’re the guy who always l i e s. About me and about everyone else. All the time.

    That’s a clear statement. It’s also true.

    But keep telling your l i e s, Tr0 llb0y. I’m right here watching you, keeping track. Your Gene Quinn’s favorite son, aren’t you? Let everyone know how much he approves of what you do here. Because you certainly approve of him, don’t you, Tr0 llb0y? Peas in a pod. Unless maybe Gene thinks otherwise.

  121. 163

    Your projected fantasies.. – LOL talk about retreaded nonsense.

    Come Malcolm, you can at least try.

  122. 161

    pure nutball completely unjustified rantiness

    LOL – more of the typical accuse-others-of-that-which-Malcolm-does.

    See my consolidated post of a few of your choice words that the good professor has willingly chosen to let stand. Hey, it’s his blog, so C’est La Vie.

    And we already figured out why you are allowed to post – it provides an abject lesson about how not to behave. Plus, when I rub your nose in your own CRP, it is evident that your ‘style’ of intellectual dishonesty will never convince anyone of any legal point.

    Ever.

  123. 160

    The archives don’t 1ie Malcolm.

    I know. That’s why I know that the electronic bracelet you have to wear around your ankle isn’t coming off until you move to a country without elementary schools.

  124. 159

    ineligible subject matter like “printed instructions”

    One H311 of a non-sequitur there Malcolm.

    Oh wait – I get it – you are now trying to kick up dust for an attack on the exceptions to the printed matter doctrine.

    LOL – but why the dissembling? Wait – I know, because you did another oopsie and voluntarily admitted that you knew what the controlling law was, and therefore a direct and blatant 1ie would most assuredly end up with you face down in your own CRP (yet again).

    Guess what Malcolm, you will still end up with your face in your own CRP because you cannot control yourself and post in any semblance of intellectual honesty. That’s what the crowd of svckies at PatentDocs say too.

  125. 158

    Tr0 llb0y: Does your comment at 8:27 actually mean anything?

    It means multiple things, Tr0 llb0y. I’ve told you what the controlling law is and I’ve always shared a wonderful idea about how to liven up a drab bathr0om.

  126. 157

    “I am not sure why you are taking a paternal tone with me. ”

    It’s on account of the mental illness you’ve been exhibiting.

    “Now you appear to be using your increased rhetorical powers for the dark side”

    Easy on the paranoia there man.

    But if your views have supposedly not changed then ok, my bad, I’ll totally take that to heart. But the next time you fly off the rails I’m going to remind you that [NWPA is] willing to give him the benefit of the doubt that he [Lemley] thinks this is the right thing to do. I base this on his history where he seems to have taken up his sword long ago. But, his methods are vile.

    Hopefully that might calm you down to recall that.

    It appears now that the only beef you seem to have left is with “his methods”, and not his subjective maliciousness. Methods which you still haven’t detailed for us, or explained why they’re so vile, even though that’s your main beef.

  127. 155

    Does your comment at 8:27 actually mean anything?

    It’s as if you have nothing to say and really don’t care that you have nothing to say.

    It’s almost too pathetic to be funny.

    Almost.

  128. 153

    or actually probably just your other psuedonym) anon

    Nope 6 – Malcolm is the King of the svckpuppets now. With his blatant 1ies, maybe he always has been.

    But wait – you ‘know’ who I really am, right?

    LOL – how do you see over those tall weeds, 6?

  129. 152

    “Please explain how the controlling law related to the exceptions to the printed matter doctrine have been touched by the Supreme Court.”

    They said quite clearly to not elevate the art of the draftsman over the 101 exceptions. The art of the draftsman is the formalism that this fine chap I’m responding to is referring to. Discount the formalism, realize that the only purpose of B claims has only ever been to make instructions patent eligible (and with the bonus of not even saying what they are an instead saying what a compooter does) and the claims sink faster than you can say bob’s your uncle.

  130. 151

    identified a structural distinction

    LOL – a structural distinction like “configured to?”

    LOL – like you volunteered an admission to?

    The archives don’t 1ie Malcolm. No amount of attempted spin can save you from yourself.

    While we are at it, who was right in the Myriad case and why?

  131. 150

    Here’s an easy honest question for you: Who was right in the Myriad case and why?

    Here’s another easy honest question for you: Why did you QQ incessantly about svckpuppets and then go and get busted doing the exact same thing – and then blatantly 1ie about it?

    Why the dissembling? Why the hypocrisy?

  132. 149

    This was a visceral slap at the very anti-patent Supreme Court

    Personally, I sort of prefer a good medieval battle metaphor. You know, the polished armor, the arrows, the storming of the gates, the capture of the tower, the black knights, and especially the moat with the alligators.

    Congress plainly revoked the ability of the judiciary to decide ‘invention’ and purposely used obviousness instead.

    Oh, right, that’s why they put the stuff in 103 about looking at the “claims as a whole” except that you need to dissect them first to see if there’s ineligible subject matter like “printed instructions” lurking there.

  133. 148

    “A 10d nail holding up a 3 foot 2×4 functions differently than the same 10d nail holding up an engine block for a 57 Chevy.”

    That’s funny, your bro, (or actually probably just your other psuedonym) anon thinks that the same structures do not function differently. Maybe you guys should hold a conference (maybe in your mind lol) to sort out which way it really is.

  134. 147

    the rulebook for the teab-gg-rs is to never make any definitive clear statement

    LOL – says the guy who never gives clear statements himself (unless he is accidently setting his agenda on fire with his oopsie volunteered admissions).

    It took you how long Malcolm to venture forth with a first substantive attempt to square prometheus with the precedent case most on point, and what did you and your English as a first language skills do? LOL – you tossed your ‘pet theory’ on a bonfire that is still burning.

    As they say, svcks to be you.

  135. 146

    Easy Malcolm, you are denying the very modern world brought to you by software.

    And your use of expletives must make your mommy really proud.

  136. 145

    LOL – Let’s check the talley on who owes the other answers…

    Yup – Malcolm way behind.

    Let’s start with a real real real easy one: Who was right in the Myriad case and why?

    LOL

    And what the H does any of ‘answers’ have to do with ‘creatard?’ Nothing like force feeding a bad punch line.

    That laughter you hear is not laughter with you.

  137. 144

    controlling law

    The “controlling law” is that you can patent a t–let seat by printing Tr0 llb0ys face on it because that “new” seat allows you to express yourself in a creative way.

    But the Supreme Court was never asked for their opinion about that. Gosh, I wonder what they’d say.

  138. 143

    Just remembered another all-time fave argument by one of the softie wofties: using a computer to determine which programs *weren’t* watched by a group of people whose TV watching habits were documented was “completely different” from using a computer to determine which programs *were* watched. This was an argument about non-obviousness, mind you.

    That’s pretty much the level of practice of the typical attorney in this exhalted area (many of whom never achieved a darn thing in the “technical” field they claim to be “experts” in). No wonder they’re so sensitive.

  139. 142

    according to the Board, in 2002 the art-recognized meaning of “storage medium” was magically transformed to include transitory, propagating signals per se. Who made this transformation and why?

    Your comrades in the greedy softie woftie community.

    You know, the same guys who told everyone for years that anybody could code once they knew what function to code for so they were entitled to merely recite in their claims whatever “new” function for a computer they could dream up (but now that there is more prior art out there they want to argue that mere recitation of the function isn’t “enabling” unless the PTO can “prove it” — go figure!).

    That’s why “identifying available real estate with a computer” is somehow patentable over “identifying available dog food on a shelf”. Only in the coddled world of the softie wofties patentistas, the ever-expanding group of technological geniuses whose great knowledge of science is never given the recognition they deserve by the “no-nothings” at the PTO. This is in spite of the fact that they are so busy working on really difficult “technology” like “telling Grandma that her robot car needs air in the tires, using a handheld device” or “making a smiley face on a touch-screen to communicate a feeling to second user, wherein the second user is notified of the communication by a signal sent by a portable device”. You know, rocket science, basically.

  140. 141

    “The computer that retrieves the computer program may operate differently but the media doesn’t.”

    Hmmm that’s quite an “admission” anon, that identical media do not function differently. I think I’ll keep it in my back pocket for now.

    It’s remarkable only because the rulebook for the teab-gg-rs is to never make any definitive clear statement about anything that could possibly undercut the softie woftie script.

    That’s why Tr0 llb0y always resorts to innuendo instead and would much rather fling insults than engage in an honest discussion about anything.

    Tr0 llb0y knows that “observer” has strayed from the script or maybe it’s the case that “observer” has a couple ounces more integrity than Tr0 llb0y (also not terribly impressive).

    So what about it, Tr0 llb0y? Did “observer” speak the truth when he noted that the “new” media in B-claims “operates” in the same way regardless of the instructions that are printed on the media? i.e., it simply stores the instructions, in the exact manner that the old media did? So that the only difference between the new media and the old media is the new instructions printed on the old meida? The instructions that we are merely told cause another generically recited device (not the claimed invention) to “function” differently, but which have no corresponding structure that either of our two “tech” geniuses are willing or capable to describe to us? The generically recited device that includes untold number of different species which (wait for it) “operate differently” and which require very specific structure to be printed on the old media that is nowhere recited in the claim or disclosed in the application?

    Get ready for these two to start kicking up a lot of dust. Again. Maybe they’ll try to tell us that coding is really easy and everyone can do it so all you need to do is recite the function and it’s enabled. Oh wait …. oops!

    (and of course watch Tr0 llb0y give his Magic Insult Wheel another spin — wheee!!! which of the re-treads will come up next? )

  141. 139

    Shorter “observer”: “Ha ha! You missed the moving goalpost again, silly!”

    But I’m sure the prosecution histories this guy creates are really clean and devoid of contradictory and/or fraudulent assertions. Yes, you can bet on that.

  142. 138

    Tr0 llb0y: t is you that is doing the ‘fundamentalist’ denial of reality thing here

    Summon up your best English skills, Tr0 llb0y (get help from your mommy upstairs), and articulate for everone exactly what “reality” I am “denying” in my 9:17 pm comment.

    Or just go and f*k yourself. The latter choice has the option of being very easy for you.

  143. 137

    Shorter Tr0 llb0y: “I can’t answer the question because the answer is not in my script.”

    Just like a creatard.

  144. 136

    he is not a neutral observer.

    Pretty funny coming from Tr0 llb0y, one of Gene “Patnet Apologist” Quinn’s favorite li’l water carriers. Better go and retrieve your cookie, Tr0 llb0y, while it’s still warm.

  145. 135

    Tr0 llb0y: it is safe to say that it is not your language that offends Leopold.

    And its safe to say that’s it not NWPA’s “language” that offends Dennis.

    It’s the pure nutball completely unjustified rantiness that offends. Of course, that raises the question why Dennis tolerates your typical contributions here, Tr0 llb0y.

    Like this one:

    check into Lemley’s connections with ‘Big Data.’

    Please tell everyone what these alleged “connections” are, Tr0 llb0y, and explain to everyone how those connections account for Lemley’s alleged habit of “telling lies”. Go ahead, Tr0 llb0y. Let’s see you back up your big talk. NWPA will give you a tasty treat if you lend him the helping hand he needs.

    Everyone is waiting for your big scoop. Make Gene Quinn proud, Tr0 llb0y. He loves you already but that doesn’t mean he can’t love you even more. And we know you want that more than anything.

  146. 134

    My position and views have not changed. I am not sure why you are taking a paternal tone with me. I liked you better when you couldn’t put together two sentences with major grammatical mistakes.

    Now you appear to be using your increased rhetorical powers for the dark side.

  147. 133

    There isn’t a software application that I have had any dealings with in the last decade that is negatively impacted by any of the decisions of SCOTUS or the Federal Circuit.

    You’re so awesome.

  148. 132

    observer: The two identical media do not function differently. They both store the media in the same way.

    If it’s an old storage media and it functions the same way then the media is surely anticipated. Why is it that you softie woftie types put so many words in the claim if you all you are claiming is the function of “storage”?

    Seriously, you’re going to have to do much better than this. Everybody knows that the media is old and it’s the recited and allegedly “new” function of the computer that will ultimately read the allegedly new information on your old media that you folks rely on to distinguish your “new” storage media from the “old media.”

    The computer that retrieves the computer program may operate differently but the media doesn’t.

    As noted above, the “media” certainly does “function” differently. We’ve been told that by you softie woftie folks for years. It’s the fact that it “functions” to “instruct” an old computer to do “new” things that makes that old media patentable. The problem, as you know, is that there is no structural distinction between that old media and the one you are trying to claim. So you wave your hands about, kick up some dust, and (when the rubber hits the road) mumble about “corresponding electronic structure” that must exist … but you can’t be bothered to describe it because that would be so unfair (meanwhile, everybody else has to describe the physical structure that distinguishes their new composition from old compostions … and everybody else manages to “progress” just fine).

    A 10d nail holding up a 3 foot 2×4 functions differently than the same 10d nail holding up an engine block for a 57 Chevy. A timer for your Christmas tree lights works differently than if the timer was used to regulate flow of electricity in a power line. I can think of hundreds of examples where the same structure performs differently in different contexts/environments.

    Right, and in every one of those examples you would never be permitted to patent the latter composition over the former unless you identified a structural distinction (as opposed to a “functional” distinction”). Now we’re on the same page! I’m glad you are following along, albeit reluctantly.

    Do you really need to be taken by the hand from this point and given an explanation as to why an old storage media is unpatentable over a new storage media merely because you recite some new “function” for the new storage media (at the same time you admit that the actual “function” of the media is old as the hills: to store information)? Seriously?

  149. 131

    My question to you is whether you believe that one should be able to obtain a patent to a medium (e.g., air, water, wire, vacuum) through which a signal is continuously propogated, wherein that signal contains new, useful and non-obvious information, wherein that information is instructions for a computer?
    I have no opinion on that. You are talking about a claim to a transmission medium, which is different than a storage medium. My comments are directed to storage mediums.

    However, I will say that anybody attempting to get a claim on a transmission medium that is distinguishable over another transmission medium solely based upon the signal propagating through it isn’t likely to have much luck at either the USPTO or the Federal Circuit.

  150. 130

    Me: Certainly things can be stored in air or water.

    Observer: We are NOT talking about generic “things” … the claims refer to storing a computer program.

    Right, but earlier you said that “Air and water were not examples of a storage medium,” period. You were mistaken. I pointed that out. I pointed that out because you act like an arrogant pr*ck commenting about how “silly” other people are and yet you say silly things yourself. Just take your time and we can avoid these digressions. Or you can choose to nitpick (that seems to be a pasttime of yours) in which case your arguments will fairly be subjected to nitpicking. See how that works?

    What does air and water being mediums have anything to do with a signal not being a medium?

    We’re talking about patent claims and what sorts of claims should be eligible or not. You seem to believe that a signal isn’t a “medium”. Okay, let’s start from that point. A signal is not a medium. But air is a medium and signals travel through air. Same with water. My question to you is whether you believe that one should be able to obtain a patent to a medium (e.g., air, water, wire, vacuum) through which a signal is continuously propogated, wherein that signal contains new, useful and non-obvious information, wherein that information is instructions for a computer?

    Let me know if the question is too difficult for you and I will try to phrase it for you using smaller words.

  151. 129

    It appears that even though you recognize the controlling law as related to the exceptions to the printed matter doctrine (one of your oopsie self volunteered admissions), you now seem intent to bungle that up and have someone else read your mind as to why you think it wrong.

    That’s some (delusional) trick.

  152. 128

    It does mean that you don’t understand the difference when you give such p1sspoor advice as you did at 8:39.

    Try again – but learn the basics first.

  153. 127

    Eligible is the wrong word.

    Patentable and eligible are different concepts – one you would do well to understand (come to think of it, that is exactly what Ron Katznelson – in one of his rare appearances – advised you to do).

    Lucky you.

  154. 126

    Ron MM: …for “automatically” collecting data and “automatically” telling you to do what anybody would do if they had immediate access to the data and a brain with the processing power of a computer.

    That sounds like a 103 obviousness argument.

    Yes, it does.

    Please do not do what some of our esteemed members of the judiciary do – conflate obviousness 103 issues with subject matter eligibility 101 issues.

    Two points, Ron: first of all, I wasn’t conflating anything. I was merely explaining why most softie woftie claims are obvious g*rb*ge.

    Second, Ron, if you’re so concerned about “conflation” of 101 and 103, then where in your extensive writings can I find you complaining about the printed matter doctrine? Or do you think that under 103 I should be entitled to a claim that recites a “new” kit that differs from an old kit only by the inclusion of new set of instructions?

    Please share with everyone your thoughtful and detailed answer to that question, Ron. I mean, I’m sure you’ve thought about it a lot because you seem really uptight about this “conflation” issue.

    Thanks in advance, Ron.

  155. 125

    you just have to know the difference between the two.

    I know the difference between copyrights and patents, Tr0 llb0y. Just because you disagree with me about patent protection for software doesn’t mean that I don’t understand patents or the difference between patents and copyright.

    try not to look like an absolute doofus

    How about you just go fk yourself?

  156. 124

    Question for Tr0 llb0y and his li’l buddy Night Wiper:

    Should old signals containing new information be eligible for patenting?

    Real simple. Yes or no. Just answer the question and explain your answer.

    I don’t think they should be eligible. I think eliminating signals from eligible subject matter was a great idea at least because holding otherwise would open the door to too much cr*p that doesn’t promote “progress” at all but merely promotes gambling at the patent casino and the granting of g*rb*ge claims that would make 99% of the modestly educated public puke their guts out.

    So … do you think old signals containing new information should be eligible for patenting?

    Or will you refuse to answer this straightforward question?

    While you’re at it, Tr0 llb0y, you can let us know what you think about patenting purely mental processes. Your fellow patent teab-gger Les thinks purely mental processes should be eligible for patenting. What about you? Last time you were asked this question, you refused to answer it. As if you were ashamed to answer it. What’s the problem, Tr0 llb0y? Too much “reality” for you?

  157. 123

    And then feel free to acknowledge the only remaining argument of ‘transitory’ is simply bogus (as well as acknowledge the ‘physical’ and ‘tangible’ arguments as withdrawn).

  158. 122

    Regarding 271(c), just for example, if party A makes the final assembly, he directly infringes. If he buys a component from B, then B may infringe as well if B supplies the component comprising the novel features of the invention — what causes exhaustion if done by the patentee — by contract (or by subcontract) with direct infringer. In parlance, this is known as “have made.” It should be considered “making” and an infringement, but the creation of 271 (a), (b) and (c) really messed that up.

    271(c) should have been an “additional” way to infringe It should have applied when placing a component into the stream of commerce, comprising a material part of the invention, when the only substantial use is the patented use. That is what 271(c) was intended to cover. But the “knowing” part was completely unnecessary and wrongly included. And, it should have been made clear that it was not intended to cover the “have made” situation of directly contracting parties.

    But the contract “have made” arrangement appears to be primary way direct infringement happens. When parties have direct contract relationships, proof of substantial non infringing used, etc., should not have been required.

    But all this was somehow lost in translation when the framers of ’52 did their thing. Now the law regarding contributory infringement is really messed up.

  159. 121

    Quite a fantasy there 6. Please explain how the controlling law related to the exceptions to the printed matter doctrine have been touched by the Supreme Court.

    (Note that even the anti-patent Malcolm recognizes the controlling law in this regard).

    Then feel free to explain why you seem to be unable to let this point go, that you seem unable to recognize the actual law here.

  160. 120

    I have gone over this before.

    Congress plainly revoked the ability of the judiciary to decide ‘invention’ and purposely used obviousness instead. This was a visceral slap at the very anti-patent Supreme Court (the only valid patent being one not yet appearing before the Court).

    Whether you are ‘persuaded’ is immaterial.

  161. 119

    It was more likely the (far, far, far) lesser of two evils.

    Stevens would have outright rewritten the law as written by Congress.

    What is a real travesty is that Stevens was able to have anyone remain with his nose-twisting opinion. Judicial activism at its worst and most egregious.

  162. 118

    Patents Invalid?

    Not really … just the Beauregard claims. The patents will also typically have machine, system or method claims as well. It is these latter claims that are asserted in court and which carry the day.

    This whole fight about Beauregard claims is about contributory infringement and the way 271(c) is phrased. It requires proofs, at least as interpreted by the courts, that really should not be there.

    In retrospect, if something needed to be done to overturn Mercoid, 271(c) was not the way to do it.

  163. 117

    “The bottom line here is that patent applicants must now specifically disclaim . . .”

    “Must now?” Seems to me to be retroactive,which would imply that a whole lotta patents claims out there are invalid and will remain so until either the Supremes reverse or everybody comes up with the cash to have all their patents reeaxamined or reissued. Given the result in Marine Polymer, I would recommend reexamination.

    — JCV

  164. 116

    “Nonetheless, I am willing to give him the benefit of the doubt that he thinks this is the right thing to do. ”

    I’m glad to hear that you’ve finally come to this conclusion. Perhaps your posts on the topic will become a bit more mild, and you can use any additional posts on the topic to detail just what his methods are and why they’re so horrendous and offensive.

  165. 115

    “Whatever you think of software patents, this is a crazy rule that plainly violates repeated comments fro mthe courts not to proceeed “overly formalistic”.”

    I agree, we should discount all the formalism present in B claims and sink the lot of them for claiming instructions, since they are plainly naked attempts to make instructions into patent-eligible subject matter. Do away with the formalism and you save yourself having to deal with the claims at all. The USSC even recently went ahead and told us to do that, but the PTO doesn’t want to go that far just yet.

  166. 114

    I agree anon that Lemley is making big money with his views. And, it is true that Lemley is the “modern” academic that uses his position to further his career outside of academia. I.e. he has consulting business and law firm. The money he gets from being a professor I am sure is a tiny fraction of the money he makes each year.

    Nonetheless, I am willing to give him the benefit of the doubt that he thinks this is the right thing to do. I base this on his history where he seems to have taken up his sword long ago. But, his methods are vile.

  167. 113

    anon, my point being that the SC in Bilski was not clear on what it meant by Abstract. This defect was pointed out by Stevens and and his co-signers as well.

    It is embarrassing that a brain such as Scalia joined with the Kennedy opinion. He must have crossed his fingers behind his back and held his nose as well.

  168. 112

    anon, “common law” and ineligible subject matter?

    You might be right, but Congress was anything but clear on this point. I would add to the codification of “invention,” the narrowing of grounds for invalidity to exclude 101. Now that combination of arguments begins to persuade.

  169. 111

    Ned,

    You have not yet refreshed your memory with the Bilski case I see.

    Start up the merry-go-round…

  170. 110

    the ’52 Patent Act was intended by Congress as a codification of the prior patent acts as interpreted by the Supreme Court.

    It was mostly that, but not limited to that Ned – we both know this, so kindly do not misstate that point here.

    You are quite incorrect about addressing ineligible subject matter. The Congress revoked the Judiciary common law ability with that act.

  171. 109

    Night, let me agree with you that the Supreme Court has not made clear what it means by “abstract.” That is part of the reason everyone has an opinion on this issue and the more recent Supreme Court cases can support any view.

    Benson/Diehr, though, seem clear.

  172. 108

    LOL – not when more means better, IANAE.

    That’s a critical difference with the patent power.

    Thank you for supplying comparisons that prove my point.

  173. 107

    Night, the ’52 Patent Act was intended by Congress as a codification of the prior patent acts as interpreted by the Supreme Court.

    The Bar intended to specifically codify Hotchkiss v. Greenway (work of the skilled artisan), and overturn Cuno (Flash of Genius), Mercoid and Halliburton. Nothing in the ’52 Act was intended to address eligible subject matter. That statute continued in substantially the same form as it existed in 1790/93.

    Hope this helps.

  174. 106

    You must have missed the day they covered this in history and discussed how the founding fathers thought that patents were such a good thing that they assigned the power to have patents directly into the constitution.

    Not to mention pointless wars, crippling debt, and snail mail.

    The power to do something means that the thing can’t possibly get out of hand or outgrow its usefulness, right?

  175. 105

    sorry my language may offend you

    NWPA,

    Leopold is head cheerleader for Malcolm. There is no language you can use that compares in offensive character, so it is safe to say that it is not your language that offends Leopold.

  176. 104

    Not saying that anything untowards is to be taken from this, but check into Lemley’s connections with ‘Big Data.’

    One can safely say that he is not a neutral observer.

  177. 103

    Yeah well nobody has as of yet stood up to the bullies in the government that keep on enforcing those things called “patents”.

    You must have missed the day they covered this in history and discussed how the founding fathers thought that patents were such a good thing that they assigned the power to have patents directly into the constitution.

    Not sure why you would think this even remotely calls for the use of the word ‘bullies.’

  178. 102

    Plurality, dude you have to understand, even if you accept his new challenge he will not yeild. Just as with the rest of his deeply-held beliefs, facts about how the patent system is currently being used will not be able to change them.

  179. 101

    Oh and LB, try to answer my question in the context of the U.S. political system that recently saw the repeal of financial regulation that led to our biggest disaster since the great depression. The political maneuvering was very similar to what we are seeing with patents. Big something with money wants something and they get it despite the wise heads saying that it is a bad idea. And, they roll over people and threaten people. We see that post-disaster with the financial industry and we are seeing the same thing now with patents.

    I am sorry my language may offend you but it reflects the political reality of our society.

  180. 99

    From what I’ve seen Lemley seems to believe in what he is doing, and I think he believes he is doing good.

  181. 98

    Well that was certainly a fair characterization of my positions. (major eye roll.)

    You think I mischaracterized your “positions”?

    Here is my characterization: “Lemley-is-evil-and-Obama-is-controlled-by-Lemley-and-Stanford-and-has-appointed-anti-patent-goons-that-are-destroying-the-patent-system.”

    Below are some excerpts from your posts from just a couple of weeks ago. Go ahead, please tell me where I misunderstood you.

    Notice that this fits very well with what I have been saying about Obama. Remove Kappos and send in three henchmen. Obama is trying to cripple the patent system in his own incompetent way.

    The point is that Obama doesn’t understand the patent system. Has said nutty things. Has obviously ceded power to others because he is incapable of evaluating solutions. The “others” are using this opportunity to burn us down.

    And we have “intellectuals” like Lemley that lie in law journals and are amoral that are the intellectual foundation of the burning.

    I am dumbfounded that you and others don’t see that the three henchmen will make this happen in the next en banc case. A question for you is how in the world do you think that Newman/Rader/Moore/O’Malley are going to stop them when they are out numbered?
    The henchmen–I will bet–were appointed with the understanding that they would put patents under control.

    At this point, Obama is clearly being controlled just as he was in the financial crisis when he turned to the very people that made the problem.

    Just don’t be surprised when I say I told you so after a few “decisions” by the henchmen.

    Obama has ceded control to bought off intellectuals just like he did with the financial sector. Burn baby burn.

  182. 97

    NWPA, I am curious. Do you know why Lemley takes the positions he does? Is it his genuine belief or does it serve his economic interests? This is a genuine question, because I do not know myself. All I do know is every time I read some of his stuff I want to dig a hole and climb in.

  183. 96

    MM: …for “automatically” collecting data and “automatically” telling you to do what anybody would do if they had immediate access to the data and a brain with the processing power of a computer.

    That sounds like a 103 obviousness argument. Please do not do what some of our esteemed members of the judiciary do – conflate obviousness 103 issues with subject matter eligibility 101 issues.

  184. 94

    And, Lemley will never address the accusations unless forced to before Stanford faculty senate because he cannot address them without admitting guilt that would more than tarnish his name.

  185. 92

    And, you will notice that rather than Lemley addressing my accusations he is trying to silence me.

  186. 91

    Well that was certainly a fair characterization of my positions. (major eye roll.)

    Let’s see: I have stated a factual situation that if held so by his peers would mean that the SCOTUS would never ever quote from Lemley again. Fairly serious transgression and one that was calculated to remove information processing from 101. I’d say that is about as serious as it gets in the academic circles.

    Let’s see: Kappos is asked to leave because he is pro-patent (so I hear through the grape vine.) New judges are appointed that have a history of being anti-patent.

    But, nice of you to fairly characterize my positions. (Major eye roll.)

  187. 90

    Dennis, I think that you’re probably filtering the outbursts from our friend over in Tennessee. I submit that the Lemley-is-evil-and-Obama-is-controlled-by-Lemley-and-Stanford-and-has-appointed-anti-patent-goons-that-are-destroying-the-patent-system rants are only marginally more connected to reality.

    I’m just saying.

  188. 89

    Hmmm that’s quite an “admission” anon

    LOL – check again.

    Do you admit that you know how to read? You might want to do that before you put anything into any pocket.

  189. 88

    Well-said Max. Most of Section 101 nonsense we get here in the U.S. comes from those in the judiciary who have no clue on the real technology world.

  190. 87

    “The problem we have is that no one stands up to these bullies. ”

    Yeah well nobody has as of yet stood up to the bullies in the government that keep on enforcing those things called “patents”.

  191. 86

    Here’s the thing NWPA, I agree that it was once tailored to be narrowly applied. And for a long time it was. Not many people tried to patent rubbish that would get caught. But then the Fed. Circ. opened the floodgates to this narrow sectioned off portion, which was sectioned off because it is so juicy, too juicy for the contribution made, so everyone and their grandma tried to get in that narrow excepted area because the Fed. Circ. said they could. Once we’ve had a period of calming down the masses, then it will no doubt go back to being narrowly applied.

    For instance, my art is a good comparison, people there never really started a land grab into the abstract/natural phen/natural lawls because we’d shut them down immediately. And lo and behold, the exceptions are narrowly applied. If that had happened in all other arts it would still be so narrowly applied.

    I have one question for you though, why can you not just let this issue go bro? Do you wake up in the morning with this on your mind or what? Do you make a post everytime you receive a 101 from the office? What gives man?

  192. 84

    if Lemley was found to have committed the act I have described before, the SCOTUS would never quote from him again–never ever.

    All that for not citing one of their daughters? Seems a bit harsh.

  193. 83

    And, be certain 6 that if Lemley was found to have committed the act I have described before, the SCOTUS would never quote from him again–never ever.

  194. 82

    6, a judicial exception is supposed to be created in rare circumstances to “fix” the law. It is like equity. Narrow and tailored for a specific situation. A judicial exception is not supposed substitute for the law and replace an entire act of Congress as is the case here.

    Yes, it applies to 101, but that does not change the fact that 112 was written to deal with the same issue and the SCOTUS should respect the 1952 Act.

    And, the sheer nonsense of the reasoning floors me. The 1952 Act has the concept of gateway and 112, now we think that the gateway should include 112, so we are going to negate the 1952 112 and put it into 101 with a judicial exception. Outrageous. The problem we have is that no one stands up to these bullies. Everyone is just getting their own. It is the same reason why we have “professors” post on this board about ethics, but take no interest in enforcing real world violations from notable academics (but, the bulk of its money comes from its law practice and speaking tours.)

  195. 81

    “Dear software producers, you are free to send clearly infringing executables into the United States and avoid liability for direct infringement.” (The PTAB, 2013)

  196. 79

    “that “abstract” should be used before 112?”

    Well the abstract determination is in 101, so it’s that whole gateway thing.

    But if you’re at the office, we can hit you with them all at the same time if that makes you happy.

  197. 78

    “Too bad the fed. cir. is packed with bozos.”

    Well, at least we’re agreed on something. Those are the bozos that let you get your foot in the door in the first place, remember?

  198. 77

    “The computer that retrieves the computer program may operate differently but the media doesn’t.”

    Hmmm that’s quite an “admission” anon, that identical media do not function differently. I think I’ll keep it in my back pocket for now.

    But in any event, even if, as you assert, they do not (which I’m not entirely sure I agree with just yet), you’re forgetting that the “function” at issue in the claim is actually how the compooter functions. Don’t you remember the very basis for the whole B claim regime? If I do recall correctly that was the case that talked about table clamps and how it was totally legit to specify the “structure” of a separate device (an add-on to the clamp iirc) in terms of the function ultimately produced by the clamp? I have that case faved somewhere, I’m surprised I forgot it. Wasn’t that the whole basis for the whole B claim regime? Or did you never hear about the history of B claims?

  199. 76

    Thanks for the cite. I haven’t seen that one before. However, Mewherter distinguished 3 other PTAB decisions that came out the other way. I suspect they would have done the same with Ludtke.

  200. 75

    “Air or water are storage mediums capable of storing a computer program?”

    Actually simpler than you might think. Find CD. Drop CD into a tank of water. Presto, the water is storing a computer program. Though there are more convoluted ways of doing that as well.

  201. 74

    Your request didn’t specify that the spec had to say “computer-readable *storage* medium”.
    That is what this decision is about … storage mediums. Regardless, thanks for finding so many publications that don’t support the USPTO’s position.

  202. 72

    I have used Ex Parte Ludtke (application no. 09/794,677) in my traversal of this kind of rejection

  203. 71

    An electromagnetic wave traveling in a vacuum through a specific area of space-time is the most transitory form of energy in the known universe.
    If the refractive index of a material in question is high enough maybe we can patent a non-transitory electromagnetic wave.

    I couldn’t resist a chance to make a physics-patent joke.

  204. 70

    Scroll up. Your request didn’t specify that the spec had to say “computer-readable *storage* medium”.

  205. 68

    2010/0318343. “The term “machine-readable medium” shall accordingly be taken to include, but not be limited to, solid-state memories, optical and magnetic media, and electromagnetic signals.” Doesn’t refer to a storage medium, and doesn’t refer to transitory, propagating signals per se.
    2010/0318387. “Software may also be implemented as a computer program product, i.e., one or more computer programs tangibly embodied on a computer-readable medium, such as a storage device or a propagated signal.” Distinguishes between a storage medium (i.e., a storage medium) and a propagating signal per se.
    2010/0318403. “The logic, circuitry, and processing described above may be encoded in a computer-readable medium such as a CDROM, disk, flash memory, RAM or ROM, an electromagnetic signal, or other machine-readable medium as instructions for execution by a processor.” Refers to a medium – not a storage medium.
    2010/0318410. Identical to 2010/0318343
    2010/0318504. “Any of the above can be embodied on a computer readable medium, which include storage devices and signals.” Yet again, a distinction is made between a storage device (i.e., storage medium) and a signal.
    2010/0318622. “The information carrier is a computer- or machine-readable medium, such as the memory 1310, the storage device 1330, or a propagated signal.” Yet again, another distinction made between a propagated signal and storage device/medium.
    2010/0318761. “Computer readable media may include, for example and without limitation, any number of the following: magnetic storage media including disk and tape storage media; optical storage media such as compact disk media (e.g., CD-ROM, CD-R, etc.) and digital video disk storage media; nonvolatile memory storage media including semiconductor-based memory units such as FLASH memory, EEPROM, EPROM, ROM; ferromagnetic digital memories; MRAM; volatile storage media including registers, buffers or caches, main memory, RAM, etc.; and tangible media used for storage incident to data transmission via computer networks, point-to-point telecommunication equipment, and carrier waves or signals, just to name a few.” Talks about examples of computer-readable mediums – not storage mediums.
    2010/0318908. “Although the exemplary environment described herein employs a hard disk, it should be appreciated by those skilled in the art that other types of computer readable media which can store data that is accessible by a computer, such as magnetic cassettes, flash memory cards, digital versatile disks, cartridges, random access memories (RAMs), read only memory (ROM), a cable or wireless signal containing a bit stream and the like, may also be used in the exemplary operating environment.” Hey — you found one that implies a wireless signal stores data. However, it doesn’t state that a wireless signal is storage medium.
    2010/0318923. “The computer-readable medium may include a ROM, a RAM, a CD-ROM, a magnetic tape, a floppy disk, an optical data storage device, and the like. The computer-readable medium also includes implementations in the form of carrier waves or signals (e.g., transmission via the Internet).” Yet another distinction made between storage medium and signals.
    2010/0319029. “The computer-readable record media may include a hardware apparatus especially designed to store and execute the program command, for example, magnetic media such as hard disk, floppy disk and magnetic tape; optical media such as CD-ROM and DVD; magneto-optical media such as floptical disk; ROM; RAM; flash memory, and etc. In the meantime, the record media may be an optical wire, a metal wire, or a waveguide including carrier wave to transmit a signal for designating the program command and data structure.” Sloppily written but doesn’t describe either a storage medium or signal per se. Instead, it describes “a waveguide including carrier wave to transmit a signal” – definitely not a signal per se.

    While some of this boilerplate implies that signals are an example of a medium. This is incorrect. However, this is what happens when you have attorneys (not skilled in the art) putting together boilerplate language to enable a claim type (e.g., a data signal embodied in a carrier wave) that was blessed by the USPTO as late as 2004. However, what is pretty clear is that most of the boilerplate you identified is distinguishing between storage mediums and signals.

    The USPTO has latched onto poorly written boilerplate language that was intended to cover both storage mediums (e.g., hard drives, memory, disks, etc.), transmission mediums (e.g., fiber/copper cables), and “signals embodied in a carrier wave.” While many attorneys appreciated the difference between storage mediums and transmission mediums, between carrier waves and transmission mediums, and carrier waves and signals, some attorneys did not. As such, you see instances where an attorney tacked onto the boilerplate language regarding computer readable mediums the statement “… and includes signals embodied on a carrier wave” (or some variation thereof). However, this does not change the art-recognized meaning of the term “storage medium.” Instead, this poorly-written boilerplate should have created “special meanings” of the claim language (i.e., meanings that are inconsistent with how these terms are normally interpreted). However, what the USPTO has done (with their training guidelines in 2012) and in Mewherter is transform the “special meaning” into the “art-recognized meaning.” Thus, Applicants who have used the terms correctly are put into a bind because they are saddled with a “special” claim interpretation they never endorsed.

  206. 66

    The above blog discussion is the reason why I have quit reading the comments on patentlyo. I read this one becuase I thought it would be enlightening as I have numerous computer and telecom clients. HOwever only a few of the many commnets raised useful legal commentary.

    Dennis thanks for the good timely posts that identify recent case holdings to pull and read, but I no longer bear to read your blog comment section. The blog comments are worthless diatribe dominated by a few that is a waste of time to anyone of practices patent law.

  207. 65

    Leopold,

    Do you have a point or a comment that you would like to share? Perhaps you would like to help your beloved understand the different protections afforded by copyright and patent law.

    As it is, your apparent adulation of me is recognized and I offer a most humble reply of Thank You.

  208. 64

    Challenge accepted!

    2010/0318343
    2010/0318387
    2010/0318403
    2010/0318410
    2010/0318504
    2010/0318622
    2010/0318761
    2010/0318908
    2010/0318923
    2010/0319029

    I think these are all from different applicants (i.e., no continuations), and I picked out cases where the applicant made no effort to subcategorize computer-readable media into the “signal” kinds of media and the “hard drive, memory, CD-ROM, etc.” kinds of media. Keep in mind that I only had to sift through 100 or so documents manually to get these 10, whereas I had well over 100,000 hits from the pre-grant pub database that matched my text search.

  209. 63

    Why not just claim “A statutory medium comprising…” Then it can change as the law changes.

  210. 62

    I know this is rude, but you should probably read the opinion before mouthing off about its stink.
    The Examiner had made a surprisingly good 101 rejection, which the PTAB fully affirmed.

    I see you didn’t read it. Page 1 — “[w]e affirm and designate our affirmance of the rejection under 35 U.S.C. 101 a new ground of rejection.” Do you see that part about “new ground of rejection.” It means that the PTAB isn’t using the Examiner’s reasoning.

    This is what the Examiner wrote in the appealed rejection: “[t]he Specification fails to express limit the recited “medium” to a statutory embodiment. Thus, the plain and ordinary meaning of the recited “medium” includes signals, carrier waves, etc.” Classic, USPTO conclusory non-analysis. The claim was to a storage medium – not a medium. Moreover, signals are not mediums. Electromagnetic signals (of the type describe in Nuijten) propagate through mediums.

    The PTAB gave the Applicant a gift by designating the affirmance as a new ground of rejection in light of their introduction of extrinsic evidence to further support the rejection. The PTAB really went out of their way to find pages worth of extrinsic evidence directly on point.
    Poorly written attorney boilerplate is extrinsic evidence of the meaning of a term to one skilled in the art? You have to be f ing joking. The Board admits (FN5) that they have no evidence of their meaning before 2002. Apparently, according to the Board, in 2002 the art-recognized meaning of “storage medium” was magically transformed to include transitory, propagating signals per se. Who made this transformation and why? The Board doesn’t say, but they point to a handful of misinterpreted published applications/patents – nearly all of which are silent as to transitory, propagating signal per se.

    The Board relies upon Nuijten for stating that a storage medium is a signal but this is what the Federal Circuit wrote in Nuijten: “Of course, such a signal could be stored for later use, but the result of such storage would be a “storage medium” containing the signal. Such a storage medium would likely be covered by allowed Claim 15 of Nuijten’s application, which is not before us on appeal.”

  211. 60

    A notion similar to this had been advanced previously (by me) as a way to help those who want to kick up the dust of ‘mental steps’ and who cannot seem to understand that awesome word: Anthropomorphication

  212. 59

    How about if we insert in the spec something like this:

    Wouldn’t it be simpler to claim “statutory subject matter, comprising:”? Or better still, “novel, inventive, statutory subject matter, comprising:”?

    It sure would save a lot of time at trial.

  213. 57

    How about if we insert in the spec something like this: “Applicant hereby expressly disclaims any interpretation the claims of this patent application or any patent issuing therefrom of subject matter that is not patent eligible under 35 USC 101?”

    That way the broadest reasonable construction must be limited to statutory subject matter and we avoid all of this sophistry.

  214. 56

    The Justices have made clear that no matter what, they will keep their fingers in the nose of wax of reading the implicit words of 101 through their exceptions which they will not allow to become dead letters (instant archive lesson recap: it was the judicial exceptions that would not be allowed to be turned into dead letters in the Prometheus decision. See 566 U.S. ____ (2012) at 21).

    You are welcome, Malcolm.

  215. 55

    And let’s not forget the 9-0 dance a jig baby Prometheus decision that declared that the WHATEVER approach of conflating 102/103/112 with 101 is not to be permitted.

  216. 54

    “For that reason, we hold that the description of one method for creating a seamless DWT does not entitle the inventor of the ‘835 patent to claim any and all means for achieving that objective.”

    How can a judge use a judicial exception when there is this holding regarding 112? It is not right.

  217. 53

    NWPA,

    Do you think that we will finally see 6 defend his ‘abstraction theory’ in conjunction with the well-known engineering doctrine of the ladders of abstraction as he promised, or will he continue to run away?

  218. 52

    Your comment Red Monkey brings home the fact the courts are the ones that cause so much trouble—not the attorneys.

  219. 51

    so as to keep up the ruse of objectivity at the court.

    They are not doing a very good job at that.

  220. 50

    That wouldn’t cover it Red. It would have to be statutory as of the date of the notice of allowance. They change the rules in the middle of the game all the time.

  221. 49

    Before you return to techdirt, perhaps you want to back up that statement with a factual, legally sound, and cogent reasoning.

    Or just append your blathering with some such proper clarification as ‘in my opinion, which has no factual, legally sound or cogent reasoning.’

    Thanks.

  222. 48

    As a policy making administrative ‘court’ – one would think that overturning Beauregard – would have been the most direct path to the PTO’s apparent policy goal.

    One can only surmise that PTO is keeping a low profile on the policy functions of PTAB, so as to keep up the ruse of objectivity at the court.

  223. 47

    Don’t be silly Ned. IBM’s objective was to have a claim drafted before the ridiculous decision in Nuijten allowed. Additionally, IBM would like for an infringer not to get around their patent by simply storing their software in DRAM, and then arguing that Dynamic RAM is transitory and the claim was amended to say non-transitory.

  224. 46

    Not to worry Max. The point is so good, it is worthy of a double posting.

    What part of “storage” don’t they understand?

    Moreover,the decision in Nuijten was absurd as well.

  225. 44

    The point is that “abstract” and preemption should not be used. They are ignoring our laws and our cases.

    Can any of you trol$$s make even a colorable argument that “abstract” should be used before 112?

  226. 43

    By analogy, suppose that an inventor created a particular fuel-efficient automobile engine and described the engine in such detail in the specification that a person of ordinary skill in the art would be able to build the engine. Although the specification would meet the requirements of section 112 with respect to a claim directed to that particular engine, it would not necessarily support a broad claim to every possible type of fuel-efficient engine, no matter how different in structure or operation from the inventor’s engine. The single embodiment would support such a generic claim only if the specification would “reasonably convey to a person skilled in the art that [the inventor] had possession of the claimed subject matter at the time of filing,” Bilstad v. Wakalopulos, 386 F.3d 1116, 1125 (Fed.Cir.2004), and would “enable one of ordinary skill to practice `the full scope of the claimed invention,'” Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1253 (Fed.Cir.2004), quoting In re Wright, 999 F.2d 1557, 1561 (Fed.Cir.1993); PPG Indus., Inc. v. Guardian Indus. Corp., 75 F.3d 1558, 1564 (Fed.Cir.1996). To hold otherwise would violate the Supreme Court’s directive that “[i]t seems to us that nothing can be more just and fair, both to the patentee and the public, than that the former should understand, and correctly describe, just what he has invented, and for what he claims a patent.” Merrill v. Yeomans, 4 Otto 568, 94 U.S. 568, 573-74, 24 L.Ed. 235 (1876); see also Phillips, 415 F.3d at 1321 (“The patent system is based on the proposition that the claims cover only the invented subject matter.”); AK Steel Corp., 344 F.3d at 1244 (“as part of the quid pro quo of the patent bargain, the applicant’s specification must enable one of ordinary skill in the art to practice the full scope of the claimed invention”). Thus, a patentee cannot always satisfy the requirements of section 112, in supporting expansive claim language, merely by clearly describing one embodiment of the thing claimed. For that reason, we hold that the description of one method for creating a seamless DWT does not entitle the inventor of the ‘835 patent to claim any and all means for achieving that objective.

  227. 42

    My point the other day, is that this preemption nonsense is a judicial created exception that should only be applied if in the narrowest of circumstances. The quote below makes it abundantly clear that 112 is supposed to police the scope of the claims and using “abstract” is again the SCOTUS ignoring the 1952 act and trying to govern patent law with their common law of judicial exceptions. The SCOTUS’s position is not defensible. Too bad the fed. cir. is packed with bozos.

    The trouble with allowing claim 21 to cover all ways of performing DWT-based compression processes that lead to a seamless DWT is that there is no support for such a broad claim in the specification. The specification provides only a single way of creating a seamless DWT, which is by maintaining updated sums of DWT coefficients. There is no evidence that the specification contemplates a more generic way of creating a seamless array of DWT coefficients. LizardTech, 424 F.3d 1336 (2005).

    Whether the flaw in the specification is regarded as a failure to demonstrate that the patentee possessed the full scope of the invention recited in claim 21 or a failure to enable the full breadth of that claim, the specification provides inadequate support for the claim under section 112, paragraph one.

  228. 41

    It is not as much as an affirmation as you think Michael, as the PTAB gave the designation because the case presented by the examiner was not sufficient. The PTAB arriving at the same conclusion does NOT mean that the holding was in any way a ‘gift.’

  229. 40

    given the state of the jurisprudence

    LOL – and who is to blame for that? You got it, the Supremes.

    Go ask Alice.

  230. 38

    Why not cut to the chase and have preambles that say “A computer readable medium of the type that is deemed statutory under 101 as of the filing date of this application, the medium comprising…”

    I suppose the downside is that, ironically,, given the state of the jurisprudence on this topic, that might trigger a 112 rejection for indefiniteness.

  231. 37

    I know this is rude, but you should probably read the opinion before mouthing off about its stink.

    The Examiner had made a surprisingly good 101 rejection, which the PTAB fully affirmed.

    The PTAB gave the Applicant a gift by designating the affirmance as a new ground of rejection in light of their introduction of extrinsic evidence to further support the rejection. The PTAB really went out of their way to find pages worth of extrinsic evidence directly on point.

  232. 36

    RB, from your past stance being against all patents, I summarily dismiss your implied notion of *trick*.

    But you are right in that any attempt at a distinction is merely formalistic game-playing. As clearly, a signal is a manufacture. The surrender here of ‘physical’ and ‘tangible,’ leaving only the bogus argument of ‘transitory’ hopefully will open the judiciary’s eyes.

  233. 35

    Malcolm’s observation is not completely meaningless.

    It continues to show the depths of his dissembling in order for him to pursue his anti-patent agenda.

  234. 34

    The ‘everything is transitory’ part is not even the real story.

    The real story is that the so-called transitory part that is being disallowed has greater durability than the anvils that the ‘creationist-minded’ would drop on their toes.

    Check out link to dailymail.co.uk

    Then realize that the fact that we have the picture means that the so-called ‘transitory’ medium of light (which has natural configurations that we decipher to learn about the distant bodies) has been transitory for 118,800 years – and that’s just for the immediate galaxy.

    As I posted, ‘transitory’ is a bogus argument. It is downright shameful that we allow such ignorance to be maintained as law.

  235. 33

    Whatever you think of software patents, this is a crazy rule that plainly violates repeated comments fro mthe courts not to proceeed “overly formalistic”.

    An invention basically is a *trick*, bith in case of product and process patents. Signals may not be “things”, but encoding definitely may be a “trick”.

  236. 32

    Interesting point – nothing lasts forever, so it’s all transitory. I’ve seen the PTO make a similar argument rejecting the use of the term “disposable” distinguish over the prior art, saying that everything is disposable.

  237. 31

    Irrelevancy is a speciality of Malcolm’s. He thinks that such spin, strawmen and dissembling is somehow ‘charming.’

    Maybe he got that notion from ‘Keeping It Real.’

    (Yeah, I know the inadvertent irony of his svckie is hilarious)

  238. 30

    like a creationist love to talk about the dinosaur

    Funny that – it is you that is doing the ‘fundamentalist’ denial of reality thing here Malcolm.

    Wake up to the modern world.

  239. 29

    Ah, the goalpost has been moved slightly. Earlier you asserted that “a signal was not a medium”. That was the comment to which I was responding. Air and water are certainly “mediums.”
    What is your point? What does air and water being mediums have anything to do with a signal not being a medium? Are you saying air and water are signals?

    Perhaps you should Google “air as a storage medium” or “water as a storage medium” to confirm this
    Air or water are storage mediums capable of storing a computer program? Hilarious (or path etic).

    Certainly things can be stored in air or water.
    We are NOT talking about generic “things” … the claims refer to storing a computer program.

  240. 28

    You’re quite wrong about that. Prometheus was biotech. Myriad was biotech.
    Work on your logic and reading comprehension. My statement was about non-biotech things. Your thoughts about Prometheus and Myriad are not relevant to my statement.

    We’ve already seen many software patents “go somewhere”: down the t—let
    Many?????? Hardly. There isn’t a software application that I have had any dealings with in the last decade that is negatively impacted by any of the decisions of SCOTUS or the Federal Circuit.

  241. 27

    You’ve been annoyed at anything that isn’t biotech for at least 7 or 8 years now on this blog?

    You’re quite wrong about that. Prometheus was biotech. Myriad was biotech. Their claims were no less annoying and I was quite clear about that (as I will continue to be with the j*nk that Myriad continues to assert). In short, you’re very wrong about me.

    Let me clue you into something — software patents aren’t going anywhere.

    Maybe you’re right about some software patents. But I’m sure that you’re very wrong about others. We’ve already seen many software patents “go somewhere”: down the t—let, where they belong. And there’s more to come. You can take that to the bank (on State Street! LOL! <-- some patent humor there). Golly, it's been a long day.

  242. 26

    Air and water are not examples of a storage medium.

    Ah, the goalpost has been moved slightly. Earlier you asserted that “a signal was not a medium”. That was the comment to which I was responding. Air and water are certainly “mediums.” A “storage medium” is simply any medium in which something can be stored, i.e., a medium into which something can be replaced and then subsequently retrieved at any later moment in time. Certainly things can be stored in air or water. Perhaps you should Google “air as a storage medium” or “water as a storage medium” to confirm this.

    I seem to recall software applicants stating in their specifications that propagating signals expressly fell within their definition of a “computer-readable medium.”

    You recall that?

    Yes.

    Name 10 patent numbers.

    LOL. Is it that hard for you to believe? Is that because applicants of computer-implemented applications are super smart and science-y? Is that why they know so much about real estate and where Junior uses his credit card on spring break?

    your silly little rant means nothing

    Of course it means nothing to you, friend. That’s because you “know” that the “real problem” is the “no-nothings” at the PTAB who grant record numbers of computer-implemented j*nk every year but apparently it’s still not enough for technological superbeings like you.

    Nothing wrong with functional limitations so long as they correspond to a difference in structure, which is what happens when you store different programs on a storage medium.

    What’s the “structure” that corresponds to the function “Grandma needs to click twice before she can view the copyrighted video content that was forwarded to her by email” and how does it necessarily differ from the “structure” that correponds to the function “Grandma needs to click twice before she can view the non-copyrighted video content that was forwarded to her by email.”

    Also you can try explaining how your statement squares with the little known and very obscure fact that two identical “media” containing the exact same computer-readable information function differently depending on the computer I use to read the media (you know, two ordinary members of that giant computer genus that appears in all the softie woftie claims). What’s up that? Same structure. Different function. Doesn’t seem to be much “correspondence” there.

    your silly little brain

    You do realize that B-claims are construed as method claims because everybody knows there is no distinguishing “structure” there. Right? I mean, it’s just the Federal Circuit’s way of coddling the industry until they pull the plug because nobody can take the bullcr*p anymore.

  243. 24

    And I don’t think we were talking about apparatuses here. We’re talking products.
    We are talking about a component of an apparatus.

  244. 22

    I’m annoyed by those “no-nothings”, too.
    You’ve been annoyed at anything that isn’t biotech for at least 7 or 8 years now on this blog? Let me clue you into something — software patents aren’t going anywhere.

    What is sad is that Examiner 6K and Max Drei has been on this blog for just as long.

  245. 21

    “Nothing wrong with functional limitations so long as they correspond to a difference in structure, which is what happens when you store different programs on a storage medium.”

    Which is actually not what that section says. And I don’t think we were talking about apparatuses here. We’re talking products.

  246. 20

    “You recall that? Name 10 patent numbers.”

    Brosef they’re all over the place. He’s not your secretary. Have them do it.

    “Air and water are not examples of a storage medium. ”

    Unless MM specifically designates them as such in his specification for his awesome new air/water medium, which frankly I cannot wait to get my hands on. I hope it goes into production early next year!

  247. 19

    “how can applicants be claiming old mediums”

    Exactly like chemists claim things made out of old elements.

    LOL! Tr0 llb0y loves this joke so he keeps telling it, just like a creationist love to talk about the dinosaur and human footprints found side by side in a fossil.

    Maybe if Tr0 llb0y can find, say, 1000 examples of a chemist obtaining a claim to an old composition by reciting just the old composition and its new function we’ll be mildly persuaded that he’s onto something. That would, of course, still be a drop in the bucket compared to the vastly greater number of “exactly similar” claims that are rejected by the PTO with no hope of being saved or never filed in the first place because the attorney doesn’t want to waste the client’s time and money.

    we know because you made a major oops and voluntarily admitted such

    Awww, and we were all so desperately hoping that you’re s0 ci0path l y ing tendencies were on the mend.

    LOL. You know what to do, Tr0 llb0y. I think there’s a rolling donut over by the elementary school with your name on it.

  248. 18

    I seem to recall software applicants stating in their specifications that propagating signals expressly fell within their definition of a “computer-readable medium.”
    You recall that? Name 10 patent numbers.

    Whether my memory fails me or whether those applicants were incorrect, the question arises: how can applicants be claiming old mediums? Can I can claim “A new air or water medium, wherein said air or water medium comprising a propagating signal, wherein said propagating signal comprises instructions for a computer, wherein said instructions [insert new awesome kind of advertisement that you need to click through here]”? I don’t think that claim is eligible
    You need to read the case. The language was to a storage medium — not a transmission medium. Air and water are not examples of a storage medium. As such, your silly little rant means nothing.

    Because the medium is old and there isn’t any distinguishing structure recited in the claim to distinguish this new media from old media.
    From MPEP 2114. While features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997). Nothing wrong with functional limitations so long as they correspond to a difference in structure, which is what happens when you store different programs on a storage medium.

    It’s quite magical, really.
    Only in your silly little brain.

  249. 17

    the no-nothings at the PTAB

    You mean the same “no-nothings” who are responsible for record numbers of thoughtlessly “examined” computer-implemented claims being granted year after year?

    The “no-nothings” who granted a claim on a method of rubbing your old finger in an old way on an old touch-screen for the old purpose of causing an old computer to perform an old task in an utterly predictable way? Those “no-nothings”?

    The guys who keep their heads as deep in the sand as possible so the PTO’s computer-implementin’ “clients” are kept as happy as possible until the Supreme Court says “Hey, you no-nothings, time to get your heads out of the sand already”?

    I’m annoyed by those “no-nothings”, too.

  250. 16

    how can applicants be claiming old mediums

    Exactly like chemists claim things made out of old elements.

    It’s called ‘configured’

    But you already knew that (and we know because you made a major oops and voluntarily admitted such).

    As they say, svcks to be you!

  251. 15

    a signal is not a medium.

    I seem to recall software applicants stating in their specifications that propagating signals expressly fell within their definition of a “computer-readable medium.”

    Whether my memory fails me or whether those applicants were incorrect, the question arises: how can applicants be claiming old mediums? Can I can claim “A new air or water medium, wherein said air or water medium comprising a propagating signal, wherein said propagating signal comprises instructions for a computer, wherein said instructions [insert new awesome kind of advertisement that you need to click through here]”? I don’t think that claim is eligible.

    But if the “medium” comprises silicon or magnetic particles and I mention that a computer exists that can “read” the media, somehow the information on the medium (i.e., the instructions for the computer) can be protected by a composition claim … or is it a method claim? Right, it’s a method claim. Because the medium is old and there isn’t any distinguishing structure recited in the claim to distinguish this new media from old media. So we pretend that it’s a method and then we don’t have to sweat these silly legal details. It’s quite magical, really.

  252. 14

    let people rely on copyright

    LOL – back to butcher the copyright/patent difference yet again, Malcolm?

    Seriously, you just have to know the difference between the two.

    Read slowly:
    C o p y r i g h t p r o t e c t s e x p r e s s i o n.
    P a t e n t s (by and large) p r o t e c t f u n c t i o n s a n d t h i n g s.

    Try again, and try not to look like an absolute doofus.

  253. 13

    Me thinks you meant non-transitory mediums rather than non-transitory signals.

    Methinks you need to reed In re Nuijten. Nuijten declares that transitory, propagating signals per se are not statutory. They say nothing about mediums. Also, a signal is not a medium. Unfortunately, the no-nothings at the PTAB never bothered to do any substantive research on the issue.

  254. 12

    What I think we need to do is to reform 271(b) and (c) to clarify that a seller is an infringer regardless that he knows of the patent.

    Or just get rid of patent claims drawn to instructions for computers and to computers running those instructions and let people rely on copyright to protect their awesome new methods for shoving advertisements in people’s faces or for “automatically” collecting data and “automatically” telling you to do what anybody would do if they had immediate access to the data and a brain with the processing power of a computer. I seem to recall the lovers of computer-implemented methods and associated products demanding very special protection from Congress and those protections were given to them, over the objections of many. Somehow that wasn’t enough, though. They want more. And if they don’t keep getting it, they threaten to take our special toys away.

    They can’t own the Internet, the computer, or the general concept of computing. So the next best thing is to control through any means necessary (patents or otherwise) who gets to use computing devices to access the Internet (or whatever you want to call the massive and exponentially growing cloud of unpatentable information), when you get to use those computers, where you get to use them, what you are allowed to see, and how many advertisements you have to wade through in order to see what you want to see. It’s not about “progress” in developing and manufacturing “new technology.” It’s about controlling information and how that information is made accessible through whatever existing “computing devices” happen to exist (be they “desktop,” “portable,” “handheld”, “wearable”, “implanted”, “mobile”, “levitating”, “disposable”, whatever). The unfortunate (but hopefully temporary) involvement of the patent system in this free-for-all is something that historians and law professors will surely continue to analyze for many years to come.

  255. 11

    FYI — the rejection was designated as a new grounds of rejection (i.e., the PTAB presented the rejection without the issues raised by the PTAB being briefed by Appellant).

    Why does the notion of the PTAB designating something as precedential without any input from Appellants smell like dead fish? Also, why does the PTAB designating an opinion as precedential on substantive law smell the same?

  256. 10

    “IBM did not offer any promise that the claim is limited to non-transitory signals”

    Me thinks you meant non-transitory mediums rather than non-transitory signals.

    P.S. Looking forward to my IBM appeals all coming back at least affirmed in part.

  257. 8

    MD Disclaim waves and signals to get within the ambit of useful arts? Because that is the line laid down by the Federal Circuit in the Nuitjen case?

    Pretty much, although the Federal Circuit’s decision had less to do with the “useful art” of developing methods for generating improved signals (still perfectly acceptable subject matter, last time I checked) than with the (poorly articulated) desire to keep greedy applicants from attempting to protect the underlying information carried by the “new” signals. In that regard, the Federal Circuit could stand to catch up with itself and do something about the endless parade of software j*nk that at least some of the judges seem increasingly desperate to defend.

    some overseeing court that makes the law on eligibility/patentability ever more needlessly complicated

    I can think of one pretty awesome solution. It has the dual effect of getting rid of a huge chunk of the PTO appeals backlog, too.

  258. 7

    16. A machine readable storage medium having stored thereon a computer program for converting a slide show presentation for use with a non-presentation application, the computer program comprising a routine of set instructions for causing the machine to perform the steps of:

    Extracting a slide title for a first slide in a slide show presentation produced by a slide show presentation application executing in memory of a computer;

    Converting said first slide with said slide title into a raster image;

    Disposing both said slide title and said raster image of said slide in a markup language document; and

    Repeating said extracting, converting and disposing steps for a selected group of other slides in the slide show presentation.

    This is a rather quintessential piece of functionally claimed j*nk, regardless of the inherent failings of B-claims. Let’s ignore the fact that the claim recites “instructions for a computer to make the computer do something but I’m not going to ell you what the instructions are I’m just going to tell you what the computer will do after you figure out how to write the code which is something I can’t be bothered to disclose to you because, hey, I just want to own the concept after all this is America and I came up with this first unless someone else did in which case that previous description wasn’t enabled.”

    Let’s just look at the ridiculous “limitations” littering this sad mess.

    “a computer program for converting a slide show presentation for use with a non-presentation application” — what in heck difference could it make for patentability what use the converted presentation is intended for?

    For that matter what patentable difference could it possibly make whether the data being “converted” by the computer is part of a “slide show presentation” or any other type of presentation? Is “contextual” data associated with a “slide show presentation” fundamentally different from other kinds of data? Is a “slide show presentation” with one slide fundamentally different from data associated with a titled picture? Do computers struggle with rasterizing “slide show presentation” data in particular for some mysterious reason?

    Or is this yet another misguided attempt to claim the use of an old computer for processing information in a certain context, wherein the use of the computer in that particular context (converting data in a “slide show presentation” for “use” in a non-presentation” setting) is somehow “inventive” because … it’s never been described before (unless it has, in which case the applicant will simply narrow the context by reciting a more limited type of information for “conversion”)?

    Rasterization is old as the hills. Extracting data from a file to be rasterized is old as the hills. Presenting mark up documents is old as the hills. The intended use of the file or the “content” of the data (“slide show presentation”, “automobile blueprint”, “grandma’s DVD collection,” “junior’s credit card account access status”) doesn’t make a hill of beans of difference to the computer. Computers don’t care. Computers receive, store, process and transmit information — any information — that they are instructed to receive, store, process and transmit.

    How many more thousands of slices of this regurgitated pie is the PTO going to hand out before it comes to its senses?

  259. 6

    What is IBM’s objective here? They created B-claims in the first place to avoid the additional proofs required by 271(b) and (c).

    When one transmits software for use on a computer, who is the infringer? I think the end user is a direct infringer and the transmitter is an inducer or contributory infringer. So we see IBM trying to conduct another end run around 271(b) and (c).

    What I think we need to do is to reform 271(b) and (c) to clarify that a seller is an infringer regardless that he knows of the patent. He is liable in damages, or at least should be, to the same extent as the direct infringer

  260. 4

    Disclaim waves and signals to get within the ambit of useful arts? Because that is the line laid down by the Federal Circuit in the Nuitjen case? Henceforth, no carrier claim that lacks a disclaimer can go through to issue?

    What good fortune the EPO has; to be free to generate its own eligibility/patentability tests, without being told what they are by some overseeing court that makes the law on eligibility/patentability ever more needlessly complicated.

  261. 3

    Disclaim waves and signals to get within the ambit of useful arts? Because that is the line laid down by the Federal Circuit in the Nuitjen case? Henceforth, no carrier claim that lacks a disclaimer can go through to issue? Bonkers.

    What good fortune the EPO has; to be free to generate its own eligibility/patentability tests, without being told what they are by some incompetent meddling overseeing court that makes the law on eligibility/patentability ever more needlessly complicated.

    Only asking.

  262. 2

    Interesting to note the position shies away from “physical” and “tangible” and relies on “transitory.” (as I have posted in the past).

    Interesting too that “transitory’ is a bogus argument, as many things considered non-transitory have ‘shelf-lives’ far far far shorter than the ‘transitory’ things that are visibile on a clear night.

    I will add another interesting note – as shared by Hal Wegner: PTAB does not reference ANY Supreme Court cases in this decision.

  263. 1

    More form over substance jibberish. The beauracrats are overthrowing the technology people at the PTO.

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