By Dennis Crouch
Today, the Supreme Court will hear oral arguments in the patent subject matter eligibility case of Alice Corporation Pty. Ltd. v. CLS Bank International. Alice Corp.’s patent covers a computerized escrow system and method that CLS Bank allegedly uses in the process of settling trillions of dollars in transactions each week.
Question presented
Whether claims to computer-implemented inventions-including claims to systems and machines, processes, and items of manufacture-are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court?
As petitioner, the patentee (Alice Corp) will argue first. Respondent’s time will be split between CLS Bank and the US Government who has filed an amicus brief highlighting a misguided argument that “the abstract idea exception is patent law’s sole mechanism for excluding claims directed to manipulation of non-technological concepts and relationships.”
A transcript should be available in the afternoon.
See: Dennis Crouch, Software Patent Eligibility: Alice Corp v. CLS Bank on the Briefs (March 13, 2014).
= = = = =
The Supreme Court is working through a number of patent related decisions this term:
- Alice Corporation Pty. Ltd. v. CLS Bank International (subject matter eligibility of computer implemented inventions and software). Oral arguments March 31, 2014 with decision expected June 2014.
- Teva v. Sandoz (whether a district court’s finding of fact in support of claim construction should be reviewed de novo as required by the Federal Circuit). Petition granted March 31, 2014.
- Lexmark Int’l v. Static Control (allegations of patent infringement against non-competitor can create Lanham Act claim). Decided March 25, 2014.
- Octane Fitness v. Icon Health & Fitness (proper standard for determining an “exceptional case” in the attorney fee shifting context of 35 U.S.C. §285). Oral arguments held February 26, 2014 with decision expected by June 2014.
- Highmark v. Allcare Health Mgmt. (standard of appellate review for fee shifting decisions). Oral arguments held February 26, 2014 with decision expected by June 2014.
- Nautilus v. Biosig (standard for determining when a patent claim is invalid as indefinite). Oral arguments scheduled for April 28, 2014 with decision expected in June 2014.
- Limelight v. Akamai (determining whether inducement should be severely narrowed by the no-joint-infringement doctrine). Oral arguments scheduled for April 30, 2014 with decision expected in June 2014.
- Medtronic v. Mirowski (holding that patentee has the burden of proving infringement even in declaratory judgment actions by a licensee in good standing). Decided January 22, 2014.
- Petrella v. MGM (considering the laches doctrine in the copyright context). Argued January 21, 2014, awaiting decision.
- ABC, Inc., v. Aereo, Inc (when does an internet transmission count as a “public performance” under the copyright laws?). Argument scheduled for April 22, 2014.
- POM Wonderful v. Coca-Cola (who has standing to challenge a food or beverage label as misleading or false under the Lanham Act). Argument scheduled for April 21, 2014.
OT, but something that 6 might enjoy:
link to blogs.discovermagazine.com
Another episode in the “data wants to be freeeee! – trust the government” saga:
link to engadget.com
These searches were authorized by a secret surveillance court in 2011
Secret? I thought all data yearned to be freeeee! ?
http://news.yahoo.com/us-confirms-warrantless-searches-americans-213242088–politics.html
After Round Three (Verrilli), Alice wins.
Verrilli was worse than useless. His repeated emphasis on ‘technology’ simply misses what the current law actually is, and thus was completely lacking in any sense of compelling any effort to change the current law to his preferred viewpoint.
At best, a couple of the judges explored a possible ‘way out’ without making a decision on software at all. Given the slap across the face of the Supreme’s in the Alice en banc non-decision, ANY non-answer from the Court, ANY sense of ducking (again) its responsibility in the mess of 101 jurisprudence, ANY sense of the Court vomiting out a “‘It’s abstract’, just apply it” type of escape ruling will not only not sit well across the patent world landscape, it will seriously impugn the ‘respectability’ [sic] of the Court.
anon, I don’t see how Alice wins given Bilski and Mayo.
But your comment on ducking responsibility hits the mark.
1. Bilski claimed a process.
2. The process resulted in a useful end. Per Benson, it was therefor not abstract.
3. Nevertheless it was held ineligible based on Benson?
The rule given was that Bilski claimed a fundamental economic principle and preempted that. Are fundamental economic principles ineligible? If so, why? And just how did it preempt the principle? The process was detailed and specific to a particular application.
The only explanation that could make sense was that fundamental economic principles are simply ineligible, but the technology to implement them might be eligible. But that still begs the question, why are fundamental economic principles ineligible? Labelling them abstract despite all the detailed, concrete steps defined in the claims is and was nonsensical.
Ned,
My analysis was in response to 6 and his question regarding the oral arguments.
I have reviewed the oral arguments, the proponents and the Justices, and rendered my educated guess as to the effects of the oral arguments.
As to your (yet another) attempt – “the only explanation that could make sense” – to re-write the decision and re-define what the Court actually said. Sorry, but you have hit your limit on merry-go-round rides for the day. Clearly, when your proffered explanations cannot comport with law, it is time for your to stop, think and come up with a different explanation. You keep on thinking that you will get a different result when you apply the same broken thinking time and again (the adage about insanity comes to mind).
Ned vaguely quips “anon, I don’t see how Alice wins given Bilski and Mayo.”
Again, Ned, your untethered reference to Bilski and Prometheus leave me guessing as to why you are thinking as you do.
Looking at your other comments, I then can only summarize that you have (again) incorrectly assumed those briefs and oral arguments that align with your agenda are to be taken as gospel truth and law. That you are (again) assuming the conclusions as proof is simply not compelling. Your continued ‘re-writing’ of the holding of Bilski to fit your agenda is simply not compelling. Your continued over-reading of Benson and Flook (without explaining the quotes in each decision that I have placed before you) is simply not compelling. Your ad nausem repetition of your incomplete legal logic does not make that logic complete – it only highlights the fact that your logic is incomplete and that you continue to refuse to address those aspects that you have no answers for.
As far as “ducking responsibility hits the mark” I do hope that the Court also realizes that. After reading the oral argument transcript again, one can see that certain members of the Court are frantically hoping for a way out of the mess they created without actually taking a firm position.
The first step in any resolution that will have any firmness and clarity going forward will be – must be – the Court taking responsibility for the mess it has created in the 101 jurisprudence.
Like any recovery from any addiction, one must first realize that there is an addiction.
The full scope of what happened in 1952 must be recognized. Section 103 was not created in a vacuum. 103 carved something out of what were the words of 101 in the pre-1952 words of Congress.
I know that you believe that the tool of common law evolution provides the best jurisprudence and the best law. In fact, I would posit that your belief in this is an addiction for you.
The problem is that you do not realize your addiction to this belief. You do not realize that you have to give up this belief when it comes to patent law and specifically the patent law of 101.
Congress really did remove the tool of shaping the 101 definition of ‘invention’ by common law evolution that it had explicitly given to the courts in the early patent acts. You – and the Court – need to realize this inevitable fact. Overcoming the addiction will not happen until that addiction is recognized and admitted – no matter how humbling that admission might be.
Historically, it takes great courage for the Court to admit its past errors. And often, this courage is lacking. Too often, jurisprudence is greatly muddled when the Court seeks to ‘tweek’ what should be flatly rejected. This ‘tweeking’ – instead of creating clarity – merely creates countervailing ammunition that is later used by diametrically opposed philosophical camps in later Supreme Court decisions. Any student of law easily sees this wrangling by the Court on philosophical grounds as duplicitious and denigrating to the respect that the Court should have. Even the Court’s own members engage in sniping, using such terms against each other as “Lochnerian” and “judicial activism stepping beyond the bounds.”
It is far “easier” to engage in judicial appeasement. The 9-0 Prometheus decision can be seen as such an example. Clearly, the Court was fractured in the Bilski decision. Clearly, Breyer was enraged with the treatment by the lower court of his reasoning in the removal from the Court (for improvident grant of certia) of a certain case – the “that has no effect of law” quotes. Look at how the Prometheus case mirrors that earlier case. Clearly, the Court as a whole, threw a bone to Breyer in what can only be called a Neville Chamberlain move. Patent peace for our time.
But exactly like the Chamberlain move, the decision has turned into a fiasco. Anyone who understand patent law immediately can see that the decision cannot square itself with the jurisprudence that itself says is most on point.
We need a Churchill – not another Chamberlain.
We need the Court to stand up and recognize its addictive fingers in the 101 nose of wax.
We need the Court to recognize its Constitutional limits. Congress, not the Court has been sanctioned to write patent law. Congress, not the Court must be the one to place limits on ‘any.’
And you need to stop your addiction to re-writing Court decisions, expanding and changing definitions of ‘abstract’ and ‘Useful Arts’ to be plainly something that they are not.
How deep the rabbit hole of “implicit?”
One must ask, how much is that piece of paper worth (in hindsight)?
link to youtube.com
Anon, while I agree with you a couple points. I think the court should link the exceptions into the statute in some way rather than the simply divorcing their cases from statutory framework. I think they did that with respect to mathematical algorithms, equating them to laws of nature and both to something that is not new even though not known. Thus mathematical algorithms and laws of nature and phenomena of nature are neatly linked into the statute. Recall I quote you to language from Myriad where Justice Thomas actually linked the holding to the word “new” in section 101.
Thus mathematical algorithms, products of nature, laws of nature and other phenomena of nature all neatly linked into section 101’s “newness” requirement. But I do not believe that one can say the same about business methods and have said so. The only possible link to section 101 but I can see is that a business method is not within the useful arts. I don’t believe it is a problem of abstractness and have said so before and will say it it here again. The claims in both Bilski and in this case are simply not abstract within the meaning of that term given that by Supreme Court in O’Reilly v. Morse.
That said, Sotomayor did give us your opinion that the claims in this case were functional. As such, they are like the claims in Morse in the statutory problem is not really 101, but 112. But as we have debated this issue with our new friend RandomGuy, I do not believe that claims to programmed computers are the variations are functional, but a simple reason that anyone with any skill in the art can’t write a program to implement the claimed algorithms.
As to reversing a very badly decided case, I would hope that the majority that decided Bilski would recognize its error and join with Breyer and Ginsburg and Sotomayor and hopefully Kagan to decide the issue based upon the only statutory basis available, that a claim to a business method is not within the useful arts as defined by section 101.
Ned,
Your logic falls apart on many places, starting with the fact that the universe is not constant.
The map is not the land.
Your continued attempts to bastardize the Useful Arts has no place in this reality.
Your “wishing to reverse a badly decided case” by invoking a constitutional crises in the separation of powers doctrine by having the Judiciary do what was allocated to the Legislature is downright appalling. Your addiction is out of control.
This notion of yours tying the Constitutional phrase Useful Arts to the words of 101 is a FAIL, Ned.
The phrase in 101 is not “useful process” as a derivative of “useful art.”
The phrase in 101 is “new and useful,” and applies to each category. This can be seen by the parallel construction of “new and useful improvement thereof.” This phrase is understood to represent the utility aspect of 101 (as opposed to the category aspect). As such, you continue to conflate that which I warned you not to conflate.
No one talks of the Useful Machines as a Constitutional notion.
No one talks of the Useful Manufactures as a Constitutional notion.
No one talks of the Useful Compositions of Matter as a Constitutional notion.
Further, your attempted (over) reading yields a circular error. Your attempted (over)reading yields that the Useful Arts is combined total of the Useful Arts and the Useful Machines and the Useful Manufactures and the Useful Compositions of Matter, with the logical error of the second referenced Useful Arts a non-unitary smaller subset of the first referenced Useful Arts.
anon, your concept of intellectual conversation would find approval in certain institutions that warehouse the insane.
There is little doubt in reading the statutes of 1790 and 1793, that Congress was attempting to enact what it viewed as the useful Arts.
That some commentators say that useful Arts is different or broader or whatever is shear speculation. What Congress in fact did it the best evidence.
The words of the stature have except that “process” has substituted for “Art,” remained the same since. Under the doctrine of statutory construction, the meaning of the statute is construed in the contest of the time of its enactment.
That you disagree with this is noted. But you simply disagree. I have the benefit of the law.
Ned, as would yours.
Again, after the trade of comments, will you finally start answering some of the points I provide to you?
I will note that our past discussions on statutory constructions have not yielded any points in your favor.
It has not just been ‘commentators Ned – the judicial and legislative branches also have indicated that the Useful Arts are broader than the technical arts.
You have ZERO benefit of the law, because ALL that you have done is hsown your own odd bendings of that law. You have provided ZERO citations outside of your own fantastical recreation and imaginings.
anon, all I can say is that if congress were to expressly authorize patents on business methods, there would be case, trust me, that would raise the question of congress’s power to do so.
Ned,
There was – See Bilski.
…for some reason that I think we both know 😉 you seem incapable of recognizing why Stevens lost his majority-slated position in the Bilski case.
Clearly, what Stevens wanted to do is exactly what you want to do. You should read the Alice oral transcripts and pay attention to the “otherwise do what failed to have been done in Bilski” line of thought.
4 is not 5.
Still.
Ned,
Your ‘logic’ in ”
1. Bilski claimed a process.
2. The process resulted in a useful end. Per Benson, it was therefor not abstract.
3. Nevertheless it was held ineligible based on Benson?”
is horrendous.
Specifically, your point 2 is completely wack. The ‘abstract’ in Benson was not tethered to “a useful end.” If it were, perhaps the Court would have got that decision right.
Instead, Douglas butchered the law (as was his want) and introduced the notion of pre-emption. Silly Douglas, all claims pre-empt. That is what they do.
What the Court did was stick its finger deep into the 101 nose of wax. Look at the horrendous dicta of that decision and try to hold a straight face and say that a philosophical position was not running amuck. Seriously. It is no wonder that the Benson decision is considered one of the worst patent decisions of all time.
Instead of correcting this mistake, we have the Chamberlain effect of Flook. We have the ignoring of what Diehr was meant to do. We have people actually quoting Benson and Flook without giving credit to what Diehr limited those decisions to. Can you believe that people today would twist the law so badly?
“After Round Three (Verrilli), Alice wins.”
Yeah I’m not really sure where you got that from. The judges ripped alice to shreds while leaving the other two more or less to just stand and speak.
But is this your official prediction?
“I’m not really sure”
Try reading the transcript then.
Of course,it helps to understand what is being said and what the law is…
Verrilli was worse than useless. His repeated emphasis on ‘technology’ simply misses what the current law actually is, and thus was completely lacking in any sense of compelling any effort to change the current law to his preferred viewpoint.
Agreed, anon. Have you read the SG brief? It’s an extended roundabout plea to set up a way to eliminate the worst §103 violations before getting to discovery and Markman. Any pretense of actually reading or interpreting or applying §101 is abandoned.
The SG even endorses the worst and most abstract software patents — “linear programming, data compression, and the manipulation of digital signals” — based on a minority Supreme Court opinion parading itself as a concurrence. Even the things §101 is most essential for protecting from monopolization are specifically included by the SG.
Erasing §101 to double up on §103 is Virrelli’s whole point. Well, that and the usual nonsense that §101 is about whether something seems ‘hard’ or not to judges, regardless of what engineers think.
A naked plea to the Court to engage in explicit law writing rejected in Bilski should have been vehemently denounced by the Court.
I am reminded once again of Chief Judge Rader’s admonition: “When all else fails . . . consult the statute… vindicated the proposition that “all else had failed.”
Wake Up Supreme Court – your implicit and contradictory 101 jurisprudence has wreaked enough havoc. Take some responsibility here. Since you cannot write law, at the least, undo your damage.
After Round Two (Perry), I have the Court even more strongly favoring Alice – at least in the war versus battle aspect.
Perry was much more smooth than Philips, but as mentioned, sacrificed the war to win a less extensive “claim” battle. Since the pressure is on the Court to do more than simply say ” ‘abstract” and apply it,” the sacrifices will work against Perry’s larger cause.
I read NO justices firmly in the anti-software camp from the Perry exchange. Even while Perry obviously pandered to both Breyer and Ginsburg, I did not see any signs that Perry carried an anti-software argument successfully with these two.
Instead, as with the first set, Kagan is on the fence and now is joined on that fence by Breyer and Ginsburg.
The pro-software patent side remains a strong six of Sotomayor, Kennedy, Scalia, Alito, Roberts and Thomas. Kennedy’s repeated requests for examples of business method patents pierced the silver tongue of Perry. Perry’s critical directive to Scalia about the scope of the Useful Arts will only blow up in Perry’s face. And Roberts was clearly not impressed with the notion that just because a solution may technically be carried out by people, if that carrying out takes 20 people 100 years, there is something amiss with trying to rule out patent eligibility.
anon, I don’t know what “issue” you are talking about, but “software” per se is not at issue in this case. Furthermore, I don’t think even you are seriously contending that the court will overturn both Bilski and Mayo.
So, I really do not understand where you think the Supreme Court is going to come out in this case.
There are none so blind as those that refuse to see.
Given how you still refuse to see the Nazomi case Ned, I am not surprised by your unwillingness to understand my posts.
LOL – maybe you can prepare a brief and post it outlining what you see as the “issue” in this case.
Beyond that, your comment about somehow thinking that I am advocating overturning both Bilski and Prometheus seems rather untethered.
“sacrificed the war”
Perhaps you can tell us all how Perry is able to sacrifice the “war” on behalf of everyone else?
“I read NO justices firmly in the anti-software camp from the Perry exchange. ”
Of course, they all still want industrial software like in Diehr.
LOL – clearly 6, Perry offered more than just Diehr.
You apparently need to learn to read for understanding.
“Perry offered more than just Diehr.”
Perry may have, nobody cares except you and some other tards.
Those “tards” 6 include the Supreme Court for whom the record includes what Perry offered.
That’s rather important. Do you understand why?
“Those “tards” 6 include the Supreme Court for whom the record includes what Perry offered.”
Inability to understand the thoughts or feelings of others.
Nope – you are still not understanding 6.
(but you do seem to be in your projecting mode)
I don’t know how you come to the conclusion that Sotomayor is pro-software. Ginsberg had to stop her from saying that Alice is proving that business methods should be tossed completely.
Random Examiner,
I think that you misunderstand what Sotomayor was driving at. She was driving at confirming whether the advocate was committed to a view that was not in accord with the majority decision in Bilski. It was not her view that she was confirming, her own belief, but rather that it was the advocate’s belief that all business methods should be tossed completely.
You have assumed that she has maintained her position as a newbie on the bench, a newbie whose mentor was Stevens, a newbie, whose mentor Stevens had been slated to write the majority position for the Bilski case, but whose mentor Stevens lost that majority position because that mentor would have crossed the constitutional separation of powers line to explicitly re-write patent law in order to toss completely all business methods.
Think, my examiner friend think – you are resting on your assumptions. Assumptions that rest on very shaky grounds. Sotomayor is not locked in stone to her first Supreme Court decision. Sotomayor very much depends on the advocates in front of her. And while Philips had a shaky start, he did swing Sotomayor. If anything, the direct (and in error) Verrilli ‘advocacy’ locked Sotomayor in against a Court explicit re-writing of the words of Congress and an achieving of what was attempted (and failed) in Bilski by an even more circumlocutionary route.
The point is not whether Sotomayor is pro-software. The point is that Sotomayor has matured and stands on her own judicial legs without leaning on the Stevens viewpoint.
anon, Sotomayor thinks that Alice is trying to patent a function. Now that is a better way of expressing the problem with these claims then calling them “abstract.”
Tell me about Deener, Ned.
While I personally question the propriety for using 101 to get rid of these junk patents (I think 103, 112, 1st and 112, 2nd are more appropriate, but of course I don’t have to foot the bill on that) I think it’s pretty obvious that if Kennedy’s line of thinking stands it’s curtains for the pro-patentability crowd.
Kennedy: “Well, let me put it this way. If you describe that to a second year college class in engineering and said here’s my idea, now you go home and you program over this weekend, my guess is that that would be fairly easy to program.”
Kennedy views the claim in two parts: the idea (a trusted broker) and the implementation (the programming). The latter is not expressed in the claims (as it’s claimed by the admittedly easily achievable functional result) and the former is abstract. Under that line of thinking there’s nothing patentable in a lot of software programming.
This is the danger that I’ve seen so many on this board dance around. It’s very hard to argue that you have a new idea that is very easy to implement and is entitled to monopolistic protection. You’ll notice how Alice’s lawyer kept discussing the complexity of the program, as if complexity means it’s not abstract.
If I had to guess, I would say the court will hold that a general purpose computer that is modified only by being able to perform a calculation, barring specific evidence to the contrary, is abstract. i.e. adding a processor to a well-known method will be insufficient under 101. The court tends to follow the suggestion of the US.
Someone will likely remind Kennedy that his question is a question already answered under 35 USC 103 (“Patentability shall not be negated by the manner in which the invention was made.“).
It has nothing to do with how it was made. The claim contains no limitation regarding implementation, it embraces all implementations, and Kennedy sees the only other contribution as an idea. It’s a question of ends, not means.
It has everything to do with ho wit was made. You are missing the point of the comment completely.
RandomGuy, If I had to guess, I would say the court will hold that a general purpose computer that is modified only by being able to perform a calculation, barring specific evidence to the contrary, is abstract. i.e. adding a processor to a well-known method will be insufficient under 101.
Random, You should have said that an otherwise ineligible process cannot be made eligible by simply adding in a computer. I don’t think you said that in the above quote.
The problem is and has remained exactly how one determines that a particular process is otherwise ineligible. The Kennedy opinion in Bilski gave us no information. The extent they gave us information it was inconsistent with the holdings in Benson and Flook. In those two cases mathematics was deemed equivalent to laws of nature and therefore old, not new as required by section 101. See Flook at footnote 15. But why business methods are ineligible is not clear at all from simply reading Benson and Flook. They are ineligible because they are not within the useful arts. But wasn’t that issue decided in Bilski?
We are left with a conundrum and a puzzle by Bilski. What was the basis for holding the business method and that case ineligible. I think that is why the court asked the solicitor general at the end to provide a definition for abstract idea. He did. I think that was the best part of the whole oral argument and will provide the Supreme Court a context for discussion.
“inconsistent with the holdings in Benson and Flook”
LOL – how about Diehr‘s limitations on Benson and Flook? (See Bilski).
How about treating both Benson and Flook honestly and incorporate the quotes from those cases that I have presented to you?
How about you stop trying to redefine Useful Arts to only fit your agenda? How about you treat with respect what was actually said in Bilski instead of your constant attempts to re-write that decision and make the Stevens 4 into a majority position?
Shameful how you are carrying on, Ned. Absolutely shameful.
After Round One (Philips), with a brutal start (but with a deft turning of Sotomayor), I have the count favoring Alice
Against (the remnants of the ‘we don’t care that we were over-ruled, and would invoke a Constitutional crises by outlawing business methods per se’:
Breyer and Ginsburg
Too close to call (but leaning towards above if she could get away with dissecting the claim and splitting the baby:
Kagan
For (with the gentle reminder that what is being attempted is another stab at Bilski and elimination of business methods):
Kennedy, Scalia, Alito, Roberts, Thomas and the surprise (well, not to me for reasons previously posted) Sotomayor.
Granted, this is only after round one and the overall leanings may change.
Well, except for Sotomayor, I mostly agree. Our wise latina will stick with the other wise moderates on this one.
And Kennedy, Alito, Roberts, and Thomas aren’t going to rule in favor of Alice. They’re going to rule in a 9-0 decision that Alice is invalid for being abstract but refuse to articulate a broad and clear rule to keep future abstractions from being patented. Think of them as the Lourie wing of the Supreme Court — radical patent maximalists but not utterly corrupt. Alice is just too offensive to the nose of reasonable people for the patent to survive any kind of review.
But you’re right that the right-wing patent maximalist radicals will refuse to being the CAFC to heel. It’s just that even they can’t abide the odure of calling Alice eligible. Honest people will just have to hope that Kennedy or someone decides to spend more time with his family before Obama retires from office.
Owen,
Your sense of ‘moderates’ is bizarre. As is your continued “maximalist” mantra. Stop drinking the kool-aid my friend. Your taint about what is ‘reasonable’ and ‘honest’ show that you are being neither.
Further, Kennedy is more likely to vote with those that would invoke a constitutional crises than Sotomayor. Sotomayor is very much a judge that wants counsel to make their case – and while Philips stumbled and bumbled through the rapid fire questioning, he turned her, and Perry, -without the interfering questions – came across more like silk, the content of what he said, and importantly what he sacrificed (hint: claims purely on data transformation and no physical effect are patent eligible – yet quizzically pass the ‘abstract’ filter) will mean that the Court will not brightline rule out software.
Since Perry abandoned all but a small subset in his aim for winning the battle, the battle may be won and the war lost.
“Philips stumbled and bumbled through the rapid fire questioning, he turned her, and Perry, -without the interfering questions – came across more like silk, the content of what he said, and importantly what he sacrificed”
They were both highly compensated bumblers and both irrelevant. The SG was even worse. All eight wakeful justices agree with Clarence Thomas about oral argument: they consider it a circus and a waste of time when the important work of the court needs to be thoughtful and should be handled in carefully prepared and detailed written arguments. The difference is that eight of them consider it free entertainment for judges while to Thomas it’s a snoozefest.
It’s a way for the court to debate with each other.
It is more than that.
Let me share a personal note with you: I have discussed this with her Honor Sotomayor (prior to this case being before the bench), and that is why I share my educated opinion that she has left the Bilski 4 based on the content of the oral argument transcripts.
anon, you may be right then.
I also think the Justice may simply be following precedent as she should.
“I also think the Justice may simply be following precedent as she should.”
Would that be the “4 is not 5” precedent? You know the one, the one that you are advocating that this Court break?
Words fail me.
It also seems to me that Alice would have done well to have oral argument counsel that actually understood the invention in a meaningful way. Or could at least pretend to.
Well, if a troll patents software without actually inventing anything, and hasn’t even written the software that performs the function he’s patenting, then it’s not copyrighted.
Why should he bother to write the software? The CAFC considers it trivial and unimportant to actually create it and doesn’t consider whether it exists. The PTO doesn’t care. The patent itself covers only the function declared and not the means of performing it. And the troll isn’t planning to go into any business but speculative litigation.
Software is copyrighted as soon as it’s written, by law. No sooner. Patents have no such requirement. So trolls don’t write it.
Non-existent software is “not copyrighted” in the same sense that it is “not 10,000 lines long” or “not written in Java.” All true statements (in some philosophical sense), but not very meaningful.
But anyway, that’s not how the petitioner answered the question. He did not say “we do not own any software.” He said “No, I don’t believe our software is copyrighted.” This implies that such software does exist (since non-existent software cannot be owned) but is not copyrighted. This strikes me as highly unlikely, assuming such software does exist.
For its part the respondent claimed that the petitioner does not own any software. If that is true then the petitioner’s answer was at best strange and at worst either misleading or reflecting of a poor understanding of copyright law.
It’s probably far from the most important exchange in the oral argument, but it was a striking one, to me at least.
Perhaps the (unspoken) distinction is registered for copyright versus having copyright.
The Court asked at one point if Bilski and Mayo were so clear, then why is the Federal Circuit so fractured in its views.
Perry answered simply, “Resistance.” He noted that there is a faction in the Federal Circuit that simply disagrees with Mayo. He said that to back off from Bilski and Mayo would reward intransigence.
I could not of said it better myself. Perry should have noted that the same faction has long been resisting not just Mayo, but Benson.
Perry cited with special opprobrium, State Street Bank. We all know wrote that opinion. And we all know who leads the opposition to Mayo. And we all know which of the judges of the Federal Circuit who are the greatest heroes of the patent bar.
Hopefully, this case once and for all sends these revolutionaries a clear message.
Maybe Ned will be taking up the mantle of “Impeach the Judges”…
anon, do you know whether the Supreme Court may remove a judge for systematic refusal to follow its rulings?
I do not, in spite of the Malcolm blatherings to that effect, I am not one who has looked into that.
Phillips As to the frequent flier program, it’s pretty clear to me that even though it was a novel idea in some sense, the concept itself would have been viewed in in the KSR fashion as quite obvious as a means of improving customer loyalty.
ROTFLMAO. “B-b-b-but if it was so obvious, why didn’t the other airline think of it f-f-f-first?”
The hypocricy of the patent teabaggers is boundless.
Oh boy, the ignorant APEs (anti-patent entrepreneurs) are having a field day on this blog.
I doubt you are going to get the decision you want.
I doubt you are going to get the decision you want.
It’s all about baby steps and an inexorable trend towards forcing the computer-implenters to grow up, in addition to getting the bottom-feeders and grifters out of the system.
So I’m afraid I’m going to continue to get what I want, more or less, for many months to come. You see, nobody really wants bottom-feeders like Alice to be part of the patent system. They contribute nothing towards progress in anything except lining patent attorney pockets. The more people see and hear about such folks, the more such folks will be reviled. As they should be.
You can scream at the sky all you want. People will continue to write software and new information-processing applications for computers whether or not patents exist to “promote” such activity. Only a complete m0r0n would ever suppose otherwise.
Whether or not software wil be continue to be written is a strawman.
It goes well with your “but for” fallacy of having a patent system.
As to the frequent flier program, it’s pretty clear to me that even though it was a novel idea in some sense, the concept itself would have been viewed in in the KSR fashion as quite obvious as a means of improving customer loyalty.
Just like allowing a customer to “register” so he/she can order something more quickly is totally obvious as a means for improving customer loyalty.
Right? Oh, wait …
There’s nothing quite like the childlike-like world of the computer-implemented junksters. Do they really believe their own scripts? C’mon, people.
“The hypocricy of the patent teabaggers is boundless.”
KA-BLOOEY – another irony factory goes up in flames and explosions.
Check it out: “the magical box” analogy for functionally claimed computer-implemented junk makes an appearance, and none of the Justices disapprove:
Perry: What the applicant or patentee must do must not do is simply describe the desired result. That would take us back to State Street. That would simply say: I claim a magic box that buys high and sells low or vice versa, I suppose, I claim a magic box for investing. That’s what these patents do. Then to put it in the affirmative and in the language of Mayo, the claim has to recite something significantly more, something significantly more than the abstract idea itself.
Also this:
Perry: Your Honor, I think there’s a
significant element to the Federal Circuit that disagrees with Mayo and has been resistant in applying it.
Yup. It’s time for another spanking and a firm reminder that Prometheus was a 9-0 case that will never, ever be overturned.
Nobody could have predicted.
“Check it out: “the magical box” analogy for functionally claimed computer-implemented junk makes an appearance, and none of the Justices disapprove:”
LOL – be very careful with your NIMBY wishes for magical boxes…
“Mr. Phillips, on the abstract idea, you know that the Bilski case held that hedging qualified as an abstract idea. So how is intermediate settlement a less abstract than hedging?”
epic question out the gate.
“JUSTICE KENNEDY: Well, let me put it this way. If you describe that to a secondyear college class in engineering and said here’s here’s my idea, now you go home and you program over this weekend, my guess is my guess is that that would be fairly easy to program.
MR. PHILLIPS: I don’t disagree with it,
Justice ”
So epic!
“JUSTICE KENNEDY: So the fact that the computer is involved, it it seems to me, is necessary to make it work. But the -but the innovative aspect is certainly not in the creation of the program to make that work. All you’re talking about is if I can use the word an “idea.”
MR. PHILLIPS: I prefer not to use that word for obvious reasons.”
It just gets more epic by the minute! That guy’s got to be sweating balls!