by Dennis Crouch
- Notice has been prepared for Subject-Matter-Eligibility Guidance, but the USPTO and White House is reviewing that notice based upon Ultramercial and will be released “as soon as we can.” Will provide an avenue for written and verbal comments from the public.
- RCEs Backlog is again under control.
- Average pendency (filing-to-issuance) is 38 months for FY2014. Only about 11 months of that represents time where the PTO is waiting on applicant responses. Track-One (the fast-track) applications are averaging 16-months to issuance/abandonment.
- 1.1 million utility applications are in the pipeline (not counting provisional or PCT applications) has remained relatively steady. The number of applications awaiting a first action on on the merits has dropped to about 600,000. These figures are major accomplishments considering that more applications are being filed than ever before.
- Patent examiner attrition rate is low <5%. This means that the USPTO needs to take steps to make sure that more experienced examiners continue to do an excellent job.
- Interviews continue to rise – about 30% of applications involve an interview prior to the initial disposal (marked by an allowance, abandonment, RCE).
- USPTO along with the IP5 is rolling out a “Global Dossier” for patent applications filed in the various countries with the hope of facilitating the sharing of information between offices. Expected in FY2015.
- PTAB now has over 200 judges – up from 80 in 2010 with a goal of hiring 60 more judges in FY2015. About half of judge time is spent on ex parte appeals.
- Of the 161 IPRs with final written decisions, in 63% all challenged and instituted claims were found unpatentable while in only 16% of cases were all claims found patentable.
- The backlog of ex parte appeals remains over 25,000 pending cases. Most of these have been waiting 18-months or more.
- In FY2014, the USPTO collected $3.17 billion in user fees. The USPTO’s IT Department (OCIO) has a budget of $670 million.
- USPTO Expects that Congress will address patent reform as well as trade secret reform.
“Notice has been prepared for Subject-Matter-Eligibility Guidance, but the USPTO and White House is reviewing that notice based upon Ultramercial and will be released “as soon as we can.”
I would like the White House and USPTO to address the five gross legal errors committed by the Ultramercial Panel.
1. Failure to consider the claims as an “Integrated Whole” in the concluding analysis.
2. Failure to determine if the alleged abstract idea was preempted by the claims, in step two of the Alice two step test.
3. The creation of a new concept of the invention without the inventors permission, and based on no statutory, or constitutional authority to do so.
4. Failure to identify the initial problem and solution of the invention before declaring elements of the claim as “extra” solution activity, and in effect ignoring those elements in the concluding analysis.
5. The attempt to erect an unconstitutional “entrepreneurial” concept exception to the 101 section of the statute.
It’s disheartening that so many members of the patent bar have remained silent in pointing out these blatant errors simply because they have either an economic interest or ideological bent against software and so called business method patents.
It may very well be a fact that some business methods and software claims will fail to be eligible subject matter when put through a complete and legal Integration Analysis for example, the way it was established in Diehr and demonstrated in Prometheus v Mayo. But to sit by while the whole of patent law is being swallowed and Constitional authority of congress to write those laws is shredded helps no one.
all it takes…
triumph…
the silence of good men…
The words of Edmund Burke come to mind (and no, not the history repeats words).
The words of Edmund Burke come to mind (and no, not the history repeats words).
Deep stuff!
all it takes…
triumph…
the silence of good men…
Thank goodness we have “anon” and a self-described “expert” who is wrong about everything and never saw a claim he couldn’t fluff. Where would we be without these heroes guarding our precious patent rights?
I salute you.
And laugh.
“…never saw a claim he couldn’t fluff.”
Back to denigrating anybody who disagrees with him as a “patent fluffer.” And back to Dennis tolerating it.
So glad to see that the debate here has been elevated.
Hello AAA JJ
Well, I have attempted to elevate the discussion here by pointing out the legal errors in the Ultramercial III case. Surely, if a commentator disagrees they can present a counterpoint to my 5 arguments grounded in the statute, Constitution and/or case law. And more often than not we do get genuine questions and legal arguments. Unfortunately we also have to deal with the juvenile antics of this one MM commentator. I find it best to ignore his/her taunts and to stay focused on the law and the issue at hand, then he/she will usually go away.
Well, MM are we not all self described on this blog? And since you are a self described patent attorney, how about presenting a cogent counter argument to the 5 legal errors I identified in the Ultramercial III case?
Or, if that is just a little too challenging for you perhaps you would like to explain how….. the Ultramercial panel in this case distinguished the method from patents that claim the “‘buildin[g] block[s]’” of human ingenuity and those that “integrate” the building blocks into something more, thereby “transform[ing]” them into a patent-eligible invention?
As the Supreme Court said “MUST” be done.
See…”…in applying the §101 exception, we must distinguish between patents that claim the “‘buildin[g] block[s]’” of human ingenuity and those that “integrate” the building blocks into something more, Mayo, 566 U. S., at ___ (slip op., at 20), thereby “transform[ing]” them into a patent-eligible invention, id., at ___ (slip op., at 3).” [Emphasis Added]
Wealthy proponent of a nuttier patent system Ashley Keller: “The notion that bingo is abstract makes no sense to me”
Because a game where you “win” when some random information matches “your” random information is, like, totally tangible!
Because you can put a bingo card on your desk. Or something.
Yeah right. And thinking occurs in the ether right? In the spirit world.
Information processing is a physical process.
Signal/state processing is a physical process. Information is abstract.
Define abstract.
Whenever I see a patent/application claim which I think is a “junk” claim and should never be allowed or if issued should be invalidated, I say it is no good because it includes an “abstract idea”– because to invalidate/reject it under 102/103/112 can be a lot of hard work.
NWPA,
“Abstract” means existing in thought, but not having a physical existence.
As any dictionary (and a rather large number of recent Patently O responses) will tell you.
“Any meaning assigned to computer memory contents is arbitrary and abstract.”
Except when it is not.
You engage in a fallacy here, Dobu, attempting to ignore the fact that “data” -just like written matter – comes in more than one variety, and that not all data “in a computer” is the same. It very much depends on the configuration and the functionality involved.
Exactly like the difference between Set B printed matter and Set C printed matter.
“Except when it [meaning assigned to computer memory contents] is not [abstract].”
How can meaning possibly be non-abstract? Example, please?
“You engage in a fallacy here,[printed matter doctrine argument].”
No, Anon, I don’t. I do engage in your proposed fallacy elsewhere, but not in this discussion. Here, I am only referring to data in whichever set it is that you deem non-functional.
Example? Easy – Arrhenius.
Other examples? anywhere there is a functional relationship.
So yes, you are engaging in a fallacy.
That you can have data that is analogous to Set B printed matter fails to account for Set C printed matter. Your position here boils down to you pointing at Set B printed matter and nothing more.
Anon,
The Arrhenius equation, relating rubber curing times and temperatures, is math (and therefore abstract) by virtually anyone’s definition. I sincerely hope you are not contesting that.
If you’re trying to say that temperature (e.g.) is non-abstract, fine, we agree. The assigning of meaning to the spoken or written word “temperature”, or to a written or machine-stored record of “temperatures”, is entirely in the mind, and abstract.
Can you hang your hat on a “meaning”? Can you hit a “meaning” with a hammer? Can you look at a “meaning” with a microscope or a telescope?
“That you can have data that is analogous to Set B printed matter fails to account for Set C printed matter. Your position here boils down to you pointing at Set B printed matter and nothing more.”
You’re still not getting it, Anon. This is NOT the “software is abstract” argument that you keep trying to force it to be. This is the “information is abstract” argument (which, frankly, I’m surprised to find open for debate).
I deliberately limited my discussion to non-functional computer-stored information because you and like-minded contributors refuse to wrap your minds around the fact that computer software is also data. (THERE is the “software is abstract” argument, where you like to play your “printed matter set theory” card.)
Math and applied math – two different things and once you grasp the difference you may be ready to discuss patent law.
As to the difference between “software is abstract” and “information is abstract” discussions, I never said the toe were the same – I did say that they were analogous.
And they are.
I do know what you are attempting to limit yourself too and that is why I posted my message telling you that your own limitation is a fallacy. The analogy from printed matter and software has a corresponding place with information, and you are attempting the ‘logic’ of just treating a subset, when you need to treat all types.
The “drop it on your toe” logic is defective.
“Math and applied math – two different things ….”
No argument from me.
“I do know what you are attempting to limit yourself too and that is why I posted my message ….”
Yet you keep going back to discussing expression. I gladly concede that expression of information is necessarily non-abstract, regardless of how you wish to divide and label your sets. (If there is an exception, I can not think of one at the moment.) The information that might be contained in a work of expression is abstract.
‘The “drop it on your toe” logic is defective.‘
No, it only seems that way because you insist on playing games with the meaning of “abstract”.
The ‘logic’ IS defective and it only seems like ‘games’ to you because you fail to see that the ‘logic’ is defective.
The analogy fits even when you want to scrunch tight your eyes and pretent that it does not.
“And yet it still moves” information is real and exists apart from the human experience of that information. You claim that I am the one playing games with “expression” when it is you that is playing games with the semantics of human labels. You need to look at the total picture and not your artificially (gamed) partial view and selective apportioning.
Dobu: you seem to want to say, gee all information is the same and all information is the same. Nutty. So, why do you go to a medical doctor rather than a mechanic (or clerk at an ice cream store)? It’s all the same, right?
You nutty arguments all completely ignore that information processing is tough and some of it takes a long time and some of it doesn’t. How to process that information makes all the difference.
Fruitcake statements on your part. I can just say well all atoms are the same basically and molecules too. Doesn’t make any different what you make in that test tube. It’s all the same. Any meaning you give to it is arbitrary.
My arguments that you are right out of medieval Europe I am afraid are accurate. The computer is processing information like your brain. Think about that. So, you think that all brains are the same. That your brain is like a rat’s brain. That all information is the same. Doesn’t matter if you pick up a book on how to program in C++ or a book on how to shovel snow.
I don’t believe that you actual believe what you say you believe.
dobu The machine has physical existence. The information does not.
This is way too subtle for these sooper dooper geniuses.
They are busy trying to prevent Stalin from invading the US and turning us all into Amish people and you are trying to discuss basic logic with them. Prepare to be “devastated”!
LOL
And Dobu, what? Actually your views are deeply offensive. It illustrates to me that you do not respect science. And want to play to the mob with bizzarro nonsensical statements.
Now, boy, if you want to continue to argue then tell me if there is a difference between your brain and a rat’s brain. And tell me why you go to a medical doctor rather than the clerk at the ice cream store for medical advice.
MM chimes in with nonsense. MM you have no clue. You deny the equivalence of hardware/software/firmware.
Also please try to resolve the fact that conservation of information is the most important law of physics with your, gee it is all information and all in that there computer thing so it is all the same.
Man you really are filth.
Also, isn’t all that is in your medieval mind just all atoms? Doesn’t have any meaning does it? So you are nothing but a bag of atoms with no meaning all abstract.
Too bad you don’t respect science.
Anon,
“And yet it still moves … ”
Okay, Galileo, it appears we’re done here.
NWPA,
“you seem to want to say, [Warning! Straw man approaching!] gee all information is the same and all information is the same. Nutty. So, why do you go to a medical doctor rather than a mechanic (or clerk at an ice cream store)? It’s all the same, right?”
Obviously, I go to the MD because he has specialized information that would better address my medical needs.
“You nutty arguments all completely ignore that information processing is tough and some of it takes a long time and some of it doesn’t. How to process that information makes all the difference.”
Irrelevant to the discussion of abstractness. Spreadsheets existed before computing machines did, and the information being processed by those human computers was also abstract. On sensitive projects, they would not even know the meaning behind the numbers they were processing. They didn’t need to. The information and the reality are not the same thing.
“Fruitcake statements on your part. I can just say well all atoms are the same basically and molecules too.”
Yeah, that would be a fruitcake statement, all right. Good thing the medical industry knows the difference between abstract and non-abstract.
“ So, you think that [Warning! Straw man approaching!] all brains are the same. That your brain is like a rat’s brain.”
What an odd conclusion. I’ve seen you post this before, but I missed the first one, and frankly, I do not follow your logic here.
“That all information is the same. Doesn’t matter if you pick up a book on how to program in C++ or a book on how to shovel snow.”
I do not believe all information is the same.
“I don’t believe that you actual believe what you say you believe.”
I absolutely believe what I say I believe. I do not believe what you say I say I believe.
“ Actually your views are deeply offensive. It illustrates to me that you do not respect science. And want to play to the mob with bizzarro nonsensical statements.”
I can’t really tell if it’s my views or your straw man’s views that are offending you, but you should learn not to take everything so personally if you want to engage in public discourse.
“Now, boy, if you want to continue to argue then tell me if there is a difference between your brain and a rat’s brain. And tell me why you go to a medical doctor rather than the clerk at the ice cream store for medical advice.”
Heh. “Boy”. Make me feel young again. Anatomy is not my forte, but I would expect my brain to be larger than most rat’s, composed of cells containing different DNA, forming a different electro-chemical network of neurons. I like to think I’m smarter than most rats, too. I addressed “MD vs. clerk” above, in this post.
“Also please try to resolve the fact that conservation of information is the most important law of physics with your, gee it is all information and all in that there computer thing so it is all the same.”
Easy. You are obviously conflating quantum information theory with classical information theory.
“Man you really are filth.”
Ouch. I guess I’ll just have to comfort myself with knowing I have better manners than an attorney from a prestigious university.
“Also, isn’t all that is in your medieval mind just all atoms? Doesn’t have any meaning does it? So you are nothing but a bag of atoms with no meaning all abstract.”
No. There are atoms in my brain, but the mind (where meaning resides) is abstract.
“[Warning! Straw man approaching!]Too bad you don’t respect science.”
It’s just your views that I do not respect. But, you’re entitled to them.
Dobu: you didn’t answer any of the questions –really.
I am not mixing up anything with the conservation of information.
Your arguments are just absurd on their face. Information is input into a computer (say an x-ray), the information is processed (say identify a fracture), and a diagnoses is output. What is abstract about that?
The conservation of information applies in this case. A physical process that is bound by the laws of physics just occurred that took energy, time, and space. There are bounds on how much information can be processed for a given amount of energy.
Where is the “abstract” or should I say “witch”?
dobu, so please reconsider your nonsense and stop going on witch hunts. “Abstract” makes no sense for an invention that is automating information processing. Your use of abstract has no meaning.
Do you know what the ladders of abstraction are?
NWPA,
Once again Dobu fails miserably, in part (whether he recognizes this or not) based on an over-reliance of the mental steps doctrine. To him, this notion of “abstract” is a human cognition thing; but he simply cannot grasp the fact that a machine cannot think (yes, my favorite word once again fits: anthropomorphication), and thus the human cognitive aspect of “abstract” simply is not what theses claims are about.
And before Ned gets all hot and bothered with his “nominalist” CRP, let me remind him that he cannot be a little bit pregnant and his gamesmanship of using a shortened “statutory” instead of “statutory category” has been called out for the B$ that it is.
Yeah anon, they just don’t have an argument. They deny the basic science of information processing. Only in a world where we have a Fed. Cir. stacked with judges that have never shown any interest in science can this happen.
A machine that is automating information processing is claimed by the mob to really be thinking and as such is a witch.
NWPA,
“Your arguments are just absurd on their face. Information is input into a computer (say an x-ray), the information is processed (say identify a fracture), and a diagnoses is output. What is abstract about that?”
Computer, x-ray image digitizer, fractured bone, output display: concrete.
Assigning symbols to charge levels on collections of micro-capacitors: abstract. Nothing in the physical world mandates that a high charge should be a “one” or a “zero”, or that a low charge should be a zero or a one. Those numerical assignments are abstract. Same applies to assigning symbols (e.g., integers) to combinations of charges in a collection of capacitors. Do all the capacitors in a group having a high charge indicate maxium luminosity in the x-ray? Or maximum occlusion? Totally arbitrary choice, and abstract. Want to store a pattern in memory for use in identifying fractures in the x-ray image? The memory is still concrete, but interpreting the contents to mean they are a fracture-matching pattern? Abstract.
“The conservation of information applies in this case. A physical process that is bound by the laws of physics just occurred that took energy, time, and space. There are bounds on how much information can be processed for a given amount of energy.”
The quantum no-deleting theorem (a.k.a., “conservation of information”) specifically applies to quantum states. The charge on a micro-capacitor, or the alignment of a magnetic domain on a hard disk platter, or the structure of a microscopic crystal in a flash drive are not quantum states.
There is no “conservation of information” in classical information theory (which is what applies to modern models of information processing machines). That’s why we make back-up copies of our information. Were you aware that the “conservation of information” theorem is closely related to the “no-cloning theorem” of quantum information theory, which tells us that it is IMPOSSIBLE to copy arbitrary quantum states? Yet, the cautious among us copy classical information all the time.
‘Where is the “abstract” or should I say “witch”?‘
Anywhere you arbitrarily assign symbolic meaning to a physical state, you will find “abstract”.
‘“Abstract” makes no sense for an invention that is automating information processing. Your use of abstract has no meaning.‘
And, we’re back to where we started. To repeat myself:”Signal/state processing is a physical process. Information is abstract.”
And I’m using the dictionary meaning of “abstract”.
“Do you know what the ladders of abstraction are?”
Yes. It is a study in scope that you and Anon like to bring up in order to try and bend the meaning of the word “abstract”. Anon’s favorite example is kitchen tables. If we wish to traverse the “ladder” for that “abstraction”, we can discuss wooden kitchen tables. Three-foot-tall wooden kitchen tables. 3′-tall wooden kitchen tables with removable leaves. 3′-tall kitchen tables with removable leaves and round legs. […] A specific 3′-tall wooden kitchen table with removable leaves and round legs and radiused corners and on sale in the downtown Springfield “Tables-R-Us”. Trying to claim that none of those tables exist except the last one does NOT make “kitchen table” into an abstract noun.
“They deny the basic science of information processing.”
This would carry more weight from someone who could tell the difference between quantum information and classical information theory.
“A machine that is automating information processing is claimed by the mob to really be thinking and as such is a witch.”
I agree, that mob of yours could not be more wrong, claiming that computers “think”. As if a computer would “know” the difference between “42” as a shadow account balance or “42” as a bingo card number. Yeah, that mob is full of absurd, nutty fruitcakes assigning abstract meaning to computer memory contents and claiming that makes the information concrete.
Anon,
“Once again Dobu fails miserably …”
If you say so, Galileo.
“To him, this notion of “abstract” is a human cognition thing;”
Pick up a dictionary already. “Abstract” is a human cognition thing for English-speaking peoples.
“… but he simply cannot grasp the fact that a machine cannot think (yes, my favorite word once again fits: anthropomorphication)”
Utter nonsense. I am quite knowledgeable about the functioning of computers at the hardware level. You want an actual example of “anthropomorphization”? How about holding that computers somehow “know” the difference between a shadow account balance and a bingo card number?
“… and thus the human cognitive aspect of “abstract” simply is not what theses claims are about.”
Since you have decided to reject the dictionary definition of “abstract” that the rest of the English-speaking world is using, and Black’s law dictionary has no term-of-art entry for “abstract”, would you mind supplying your definition of “abstract” that includes aspects beyond human cognition?
There you go again Dobu, parsing what I say and confusing yourself (I have changed no dictionary definitions).
Let’s cut to the chase and water down your dust kicking:
Do machines think? Yes or no.
It’s a simple question.
“Let’s cut to the chase and water down your dust kicking:”
My dust-kicking? I’m providing straight-forward answers to each question asked. You are the one kicking up dust, dancing around alleged non-cognitive aspects of the word “abstract”. Accuse others of that which Anon does, much?
“Do machines think? Yes or no.
It’s a simple question.”
Here’s a simple answer: NO, of course they don’t.
(I think you might get some argument on that topic from NWPA, since he likes to discuss machine cognition, neural networks, neuron simulation, etc., when addressing “medieval” thinkers such as myself.)
Tell me again how these computers that do not think are entertaining your abstract ideas.
Already addressed, much earlier in this conversation. Computers process signals and states.
The abstract ideas come into play when we assign symbols to collections of those signals and states (e.g., “42”, “shadow account balance”, “bingo card number”, “x-ray luminosity/occlusion amount”, etc.).
Also already addressed much earlier in the conversation – you forgot (even after I reminded you) about the functional relationship and the analogy to the printed matter doctrine that fits here.
Open your eyes and stop trying to parse this to a Set B state of being.
The physical state of a memory cell affects how a computer functions, but the meaning we assign to that state does not. If you want to change what a memory location represents, you will (in most cases) also have to change the how the computer functions, to support that new definition. The meaning itself does NOT have a functional relationship with the computer, and your printed-matter sets have no bearing.
Dead wrong yet again Dobu.
Exactly like the analogy, when the assigned meanings have functional relationships – and they do especially when configured so, the sets have immediate bearing.
And yes, it does in fact still move.
A resistor can have an “assigned state.”
Two groups of three identical resistors each can have identical “assigned states.”
The differently configured set in parallel will be different than the configured set in series.
Information does in fact exist outside the human mind.
It still moves.
Your steadfast determination in maintaining your willful blindness does not change reality, Anon/”Galileo”.
“Assigned state”? Where did that come from? We were talking about assigned meaning, or configured state.
You can configure the “state” for the resistors to be parallel or serial. (Concrete.) You can’t “assign” parallel or serial alignment for this circuitry hardware. It’s “state” is entirely how you configured it.
You could assign a “one” to the resistance for the parallel “state”, and “zero” to the serial “state”. Or vice versa, since it’s entirely arbitrary, and only in the mind. (Abstract.)
With that understanding, you can even store a “one” in your resistor network by configuring them in the state to which you assigned the “one” symbol. But that “one” (and whatever it is you’re counting with that “one”) is information, and as such, abstract.
Sorry Dobu, but you are the one being willfully blind and ignoring reality.
The reality is that information is in fact real and exists outside of the human mind.
The reality is that claims that use functional relationships of information also exist outside of the human mind.
The reality is that you are merely playing a pedantic “labeling” game, attempting to parse the conversation down to a Set B version when you need to recognize that there is more than Set B.
Yiu can claim that I am being willfully blind all tha you want (without really saying anything about what I am being blind about), all the while it remains you with eyes closed, attempting to parse down to an incomplete picture, but the stark evidence is that it is you with the eyes closed here.
Anon,
You are refusing to see that information and expressions/recordings of information are not the same thing.
I am not refusing that at all.
You are refusing to see the analogy of Set B and Set C information.
You are refusing to see that information does exist outside of the human mind.
You are refusing to see that a machine cannot be “abstract” because a machine cannot think, and in the patent context, it is the human cognition of abstract that is deemed off limits from patent protection – and not the machine.
Simple point really – the mental steps doctrine (tied to abstract) fails because that doctrine is geared to safeguard human cognition, and just does not apply to machines.
I am not sure why you cannot see what my position is on this matter, and can only conclude that you don’t want to see it.
“they do especially when configured so”
What anon means here is “formed so”. He’s really just importing in “programmed to” in other language. It’s all a round about attempt to import product by process limitations indirectly. As many other attorneys have since admitted to me.
dobu: your arguments are –simply–ridiculous. You’ve generated this word “abstract” like “witch” and then have this definition that suits you that has no correspondence to reality. Under your definition anything can be abstract if you like it so.
And, it is a machine performing useful work. It sits there and does useful things, takes space, needs time and energy. There is nothing abstract about the machine anymore than a molecule is abstract. Information is being transformed.
And it is nice that you want to claim there is no conservation of information for macro events, but there is. I’ve posted links on here explaining it. You can find it on the Internet.
Again, big picture–what is your brain for? Why is it there? What is the computer doing? Just psycho arguments you present—terrifying that modern humans could hold such thoughts. Devoid of any perspective of what is going on and clinging to a spirit world. Your “thoughts” by the way are for what? Those things that you seem to think exist in an abstract spirit world are there why? Do you think they could actually be part of the information processing of your brain? What century are you from? My guess is you are trained in technology and not the humanities. No understanding of cognitive psychology.
Do you understand that if I write a claim down that it conveys meaning to one skilled in the art that can then go and build a machine to do the information processing?
So, abstract means what?
It is truly terrifying that humans like you exist. And, I am afraid, a sign of the times. You are part of the 99 percent. The ruled. The ones with slave minds.
At 9:14 PM, 6 states “attempt to import product by process limitations indirectly”
and
“since admitted to me”
While 6’s veracity is highly questionable (myself catching him in outright making things up several times), there is an interesting – albeit incorrect – view in his comment here.
That view is that software is an action.
It is not.
Executing software is an action.
This distinction is clear, but can become muddled because of the limitations of language. This is also reflected in the inordinate attempts to (incorrectly) portray the use of functional language as somehow not being allowed under the law (or artificially constrained to 112(f)).
The “vast middle ground” and the fact that a claim NOT TOTALLY using functional language is permissible under the law -outside of 112(f) (that OPTIONAL section allows purely – note and hold onto that word – functional claims.
As I have posted previously, this “hybrid” occurs in many art fields (so the “software is bad” scare tactic does not work), and further, Frederico himself has discussed the permissible wider use of functional descriptions within claims, as a direct object of the Patent Act of 1952.
Yes, it can be (and should be) noted that the anti-patent forces have first attacked this change in law in the software arts; due no doubt at least in part to the ease of using language of action as a description for the manufactured item that is software (hence the warning to 6), but any level of critical thinking shows that this line if thought is not and cannot be constrained just against software.
This line of attack is not just anti-software patent. It is anti-patent, period.
Of the 161 IPRs with final written decisions, in 63% all challenged and instituted claims were found unpatentable while in only 16% of cases were all claims found patentable. <— That is a pretty shocking statistic.
CJ Rader called the patent judges at the PTO “death squads.”
On 101, I wonder if they are going to separately address Beauregard claims?
Someone, sometime has to take this claim format to the courts for a decision. The PTO cannot and should not simply issue patents in this claim format that has never been approved by any court.
Fantastic point. It’s amazing to me how these claims have been around for so long, yet no court has reviewed the patentability of these claims. Of course, one reason this is likely so is that everyone (every business) wants them to be patentable. What business is going to sue on the basis of the unpatentability of Beauregard claims, when that business likely has patents with these claims?
Any guesses on their patentability under 101? I’d hazard a guess they are not patentable, particularly if the case gets to the Supreme Court.
PatentBob, and it is not as if the claim format has not been the subject of serious debate. The validity of the format has long been debated here.
“Of course, one reason this is likely so is that everyone (every business) wants them to be patentable. What business is going to sue on the basis of the unpatentability of Beauregard claims, when that business likely has patents with these claims?”
That’s exactly right, but you’d think that some upstart would have challenged them already. One wonders how many people were challenged before litigation and they just never brought suit.
“Any guesses on their patentability under 101? I’d hazard a guess they are not patentable, particularly if the case gets to the Supreme Court.”
Blatantly not. Claiming a bunch of 1’s and 0’s functionally. That’s about as likely to pass muster under USSC review as I am able to jump 30 ft laterally.
Aren’t there usually claims like,
Independent claim #1: A computer readable medium that {abstract}.
and
Independent claim #2: A system that {abstract}.
and
Independent claim #3: A computer configured to {abstract}.
You won’t get anywhere just blocking #1 when the other two are there. And the CAFC all agrees that such claims fall or survive together in Alice.
And since nobody distributes computer readable media anymore, you’ve got a small chance to win on noninfringement if somebody brings a case with such claims.
…because a medium is “abstract”…
Um, no wait.
The really odd thing about these abstract arguments is that these posters supposedly have brains. Exactly what do they think the computer is doing? It is processing information like their brain does.
Bizarre nasty people.
I think you’ll find there are plenty of patents with just Beauregard claims. For instance, somewhere here used to believe one of our clients placed an emphasis on Beauregard claims, so they wrote entire applications solely with Beauregard claims. There may be a second case with apparatus/method claims, though.
Personally, I reached the conclusion a long time ago these claims were on shaky legal footing, so I do not place emphasis on using these claims. I also believe they’re invalid, particularly under the current Supreme Court “guidance”. Regardless, clients still request them.
Oops, should say “someone here” not “somewhere here”.
Last I checked, statutory law does not blessing by the court to be emforceable law.
anon, the basic problem with B-claims is that they end-run 271(c).
The discussion point here Ned is 101.
anon, Your discussion point here is 101. Mine is a broader canvas.
271(c) is why IBM proposed B-claims — to get around proving knowledge of infringement and All That Jazz. We should bring up and quote Vic Siber’s original publications on that topic.
You do like kicking up dust and not actually addressing the point at hand, dontcha?
On the recent copyright thread you went on and on about the functionality involved.
Are you going to now pretent that that has no impact in patent law, where functionality is the precise aspect meant to be protected by patent law?
functionality is the precise aspect meant to be protected by patent law
Is that the argument? Or your conclusion?
Did you have a point, or are just tr011ing again?
Honest question.
Given that the context here is the distinction between patent law and copyright law, what exactly is the point of your question?
You don’t have to answer it.
…and obviously neither do you.
Patent examiner attrition rate is low <5%. This means that the USPTO needs to take steps to make sure that more experienced examiners continue to do an excellent job.
How long an examiner is working at the office does not necessarily correllate to 1) how much authority they have or 2) how much work or quality is required of them.
Authority, production level, and which areas of the patent they personally are responsible for are solely a function of GS level. Moving up in GS is time-limited (i.e. you can only be promoted once a year, generally) and that provides correllation, but it is entirely common for examiners who are here 10 years to be at the same GS level as examiners who are here two years.
Retention affects promotability which affects GS level, but not all who are here a long time are primaries.
Notice has been prepared for Subject-Matter-Eligibility Guidance, but the USPTO and White House is reviewing that notice based upon Ultramercial and will be released “as soon as we can.” Will provide an avenue for written and verbal comments from the public.
I was away for the Ultramercial discussion, but having read it now they basically need to just rewrite the last paragraph on page 9 through second IV. I don’t believe its necessarily a good idea to have a technical arts test, but the statement about what is required (claims require a precise set of instructions for achievement) is correct, as I’ve been saying on this board for quite a while. You can claim your way, and then use DoE to reach similar infringers, you cannot claim the end result of your method and summarily state that every other method that achieves the same result is similar enough to you to warrant infringement. The former is a claim on an invention, the latter is functional claiming which has always been improper. Good to see its working out.
RandomGuy: I don’t believe its necessarily a good idea to have a technical arts test,
If you find the time to explain further, RG, I’d love to hear your reasons.