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.
“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?
“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.
“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).
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.
“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)
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?
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.
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.
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).
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.
“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.
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.
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.
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.
Sorry Ned – not following your brief post at 2:40. Please explain.
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.
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”?
“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.
“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).)”
Well, Morris told us what it takes to “apply” a principle. Why are we ignoring that?
Sent from Windows Mail
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.
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.
“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.
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.
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.
“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.
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?
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.
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.
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.
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?
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.
“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…?
And don’t tell me 6 that you are assuming that ‘admits of illustration’ bears in your favor (hint: it does not)
LOL – you sidestepped his criticism of you Malcolm.
Funny, it was the same exact criticism I had.
Where is my thanks, you ingrate?
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)
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?
“And so should MM.”
He does. And that is part of what unhinges him so.
Fascinating.
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.
LOL – I learned that Ron K responded exactly like I said.
What did you learn, Malcolm?
I’m aware, now read the rest of the rules. Go ahead, you can do it, you’re a big boy!
103?
Try again.
Hint: link to definitions.uslegal.com
LOL – 6, the section I provide is also word for word from 37 CFR 1.81(a).
Try again.
“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.
“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?
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.
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.
An observer,
Now you owe me a Coke.
Let’s put them both on Malcolm’s tab.
“And so should MM.”
He does. And that is part of what unhinges him so.
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.
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?
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.
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?
“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?
The rules don’t distinguish between whether one is needed or not for products. Check them rules brosef.
” 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”.
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.
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 …..
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.
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)?
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.
“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.
“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…
“I am the victor here”
I know you are 🙂 And so should MM.
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…
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.
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.
Another vacuous reply by Malcolm.
@ta boy.
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.
An empty reply (yet again).
@ta boy Malcolm.
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.
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?
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.
“(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.
Would you like me to go ahead and out ya brosef? I thought you wanted to be the victor here.
“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.
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.
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.
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.
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.”
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.
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