2015 Updates to Eligibility Guidelines

The most impactful patent decision in 2014 looks to be Alice Corp. In that case, the Supreme Court outlined its jurisprudential steps for determining whether a claimed innovation is patent eligible. In the process, the court narrowed the scope of eligibility (implicitly invalidating many issued patents) and also seemingly unified the approach to eligibility across the potential subject matter. Alice Corp. applies equally to USPTO administrative procedures as well as to patent challenges in federal courts.

Gaps in the Process: Although the court created a framework for decisionmaking, it also left a number of important gaps that make it quite difficult for a bureaucrat patent examiner to follow the steps without substantial creative legal thinking.

To help fill this whole, in mid-December the USPTO released its 2014 Interim Guidance on Patent Subject Matter Eligibility.  The guidelines where released in “interim-but-final” form and I expect that some amendments to those will come in 2015 in response to both advances in case law as well as commentary from interested parties.  To that end, the USPTO has requested feedback by March 15, 2015 sent to 2014_interim_guidance@uspto.gov.

FORUM: The Office is also holding an public forum on the guidlines at the USPTO main campus in Alexandria on Jan 21, 2015.  Anyone wanting to attend and/or present at the event needs to contact the USPTO (at the same email address above) by Friday January 9, 2015. More info here. According to the release, “only those with an accepted attendance request will be permitted to attend.”

The forum will provide an opportunity to provide specific examples of how the USPTO should be drawing the line between eligible and ineligible subject matter.

226 thoughts on “2015 Updates to Eligibility Guidelines

  1. 10

    It’s been almost a month and we’re still waiting for the USPTO’s “abstract idea examples” to be provided. The January 21 “public forum” is just 9 days away. Wil lthe PTO gets its act together before the March 15 submission deadline at least?

    The website has indicated that the examples are “coming soon” for an increasingly long period of time.

    If the PTO would like to demonstrate a couple ounces of competence in this area, they can begin by reminding everyone that information and data itself are the quintessential examples of ineligible abstractions that can not be protected by patent claims. There is no “creative law making” involved in that statement.

    Next the PTO could state that legal relationships between people (“married” “contractually obliged”) or between people and objects (“owned”) are also quintessentially abstract. There is no “creative law making” there.

    Next the PTO could state that mathematical relationships (e.g., measurements and correlations) and the generalized steps of obtaining those relationships are also abstractions, as are the assigning of abstract “meanings” to both physical objects and other abstractions (e.g., “obtain data about X” or “put X in a spreadsheet table”). There is no “creative law making” there.

    Finally the PTO could recognize as the Supreme Court did in Mayo and Alice that ineligible abstractions such as those listed above are not converted into eligible subject matter merely by salting in prior art technology for its intended purpose (e.g., old data gathering technology or old data processing technology).

    As an alternative, the PTO could continue to bend over backwards for the “stakeholders” who want to prevent people from freely using old information processing technology for its intended purpose. But the PTO should recognize that it’s credibility — and the health of the patent system as a whole — is no longer measured by how many of its “stakeholders” cheer for the opened floodgates.

    Those days are over.

    1. 10.1

      Or alternatively the Google driven propaganda machine could be ignored and real inventions promoted.

  2. 9

    Moved to the top because the format below is cumbersome:

    From what I have noticed actually doing prosecution and interviewing examiners is the following: (1) the standards vary massively by art unit. Some art units I get no Alice rejections where it is software and I can’t see any difference than other art units. (2) That those art units that are giving rejections and citing Alice seem to have to ways out for us. One, integration like Diehr, or two like an EPO argument of an improvement in the operating of the computer.

    And I have had Alice rejections withdrawn.

    That is just one real patent attorney’s take on it. (Swirling nonsense based on swirling nonsense. Benson is the root of all evil in patent law.)

    1. 9.1

      Why do you think Benson was incorrectly decided? The following portion of the opinion seems totally reasonable, even prescient:

      “It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.

      It may be that the patent laws should be extended to cover these programs, a policy matter to which we are not competent to speak. The President’s Commission on the Patent System rejected the proposal that these programs be patentable:

      “Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. Direct attempts to patent programs have been rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further and should not be permitted.

      “The Patent Office now cannot examine applications for programs because of a lack of a classification technique and the requisite search files. Even if these were available, reliable searches would not be feasible or economic because of the tremendous volume of prior art being generated. Without this search, the patenting of programs would be tantamount to mere registration and the presumption of validity would be all but nonexistent.
      “It is noted that the creation of programs has undergone substantial and satisfactory growth in the absence of patent protection and that copyright protection for programs is presently available.”

      If these programs are to be patentable, considerable problems are raised which only committees of Congress can manage, for broad powers of investigation are needed, including hearings which canvass the wide variety of views which those operating in this field entertain. The technological problems tendered in the many briefs before us indicate to us that considered action by the Congress is needed.”

        1. 9.1.1.1

          Anon,

          I posted that portion of the opinion to show that the court’s holding was well reasoned. What portion do you disagree with?

          1. 9.1.1.1.1

            Go, the dicta is NOT well reasoned.

            Try looking at the bigger picture of the political and philosophical forces in work – who on the bench was saying what, whose lead that person was following and note as well that the “good reasoning” would apply to any AND ALL ground breaking innovations.

            Such anti-innovation thinking simply cannot align with the purpose of a patent system that necessarily encourages such breakthroughs.

              1. 9.1.1.1.2.1.1

                Awww…..

                Now why is it that only MM can use words like this? (I am sure if MM responds he will not respond to the substance.)

          2. 9.1.1.1.3

            I also wonder Go if you understand the functioning of our society. The SCOTUS should not be saying that they think the PTO can’t examine applications, so they are going to go ahead and make up some nonsense. That would be the job of the Congress. Not the SCOTUS.

            Benson is one of the worst chapters in American jurisprudence.

          3. 9.1.1.1.4

            It is not well reasons. It is absurd.

            Every claim preempts what is encompassed by the claim.

            Furthermore, the claim didn’t cover every method of converting to BCD. It only covered those methods encompassed by the claims.
            One could still use the prior art method. Not that covering every method should be prohibited. If you invent every method the world couldn’t do it at all before, now they can if they pay you…. whats wrong with that?

            If I find the cure for cancer, I can patent that can’t I? I can patent it even if its the only cure can’t I?

            1. 9.1.1.1.4.1

              “Furthermore, the claim didn’t cover every method of converting to BCD. ”

              That’s not what the patentee admitted…

              “One could still use the prior art method.”

              There was no “prior art method”. He invented machine-implemented binary to BCD. Remember, we’re talking 1950’s sht.

              ” If you invent every method the world couldn’t do it at all before, now they can if they pay you…. whats wrong with that?”

              You’re claiming the abstract idea of BCD binary conversion. As has been explained to you one million times.

                1. I’m pretty sure you can find your way to benson brosef. It’s all over your interbuts. And the claim has already been ruled to have been directed to the abstract idea (as it was literally drafted to be).

                2. Claim 8 reads:

                  Yes, I can. Here is claim 8, the first contested claim. As I hope even you can see, the claim is easyly worked around and does not preempt all BCD conversion.

                  In case you can’t see the easy work around, one could, for example store the binary coded decimal in something other than the reentrant shift register of step (1).

                  Alternatively, one could convert the BCD by mapping the values in each BCD position to a corresponding binary value (like in a look up table) and do binary arithmetic calculations based on those values to arrive at a single binary value.

                  The ruling in Benson is absurd.

                  “The method of converting signals from binary coded decimal form into binary which comprises the steps of

                  “(1) storing the binary coded decimal signals in a reentrant shift register,

                  “(2) shifting the signals to the right by at least three places, until there is a binary `1′ in the second position of said register,

                  “(3) masking out said binary `1′ in said second position of said register,

                  “(4) adding a binary `1′ to the first position of said register,

                  “(5) shifting the signals to the left by two positions,

                  “(6) adding a `1′ to said first position, and

                  “(7) shifting the signals to the right by at least three positions in preparation for a succeeding binary `1′ in the second position of said register.”

                3. The method is simply a subroutine.

                  Note that in most of today’s CPU designs all registers are re-entrant shift registers (except maybe the SP (Stack Pointer), but some specialized CPUs might limit shift capabilities to specific registers. Back then (1960s-1970s) an assembly language might use special names for each type of CPU register. A compiled language would probably have concealed the details of the various registers. The p8cc (portable 8 bit cc) compiler that I used in the 1980s — it was developed for pay telephones –worked in this way as do many compilers developed for DSPs (Digital Signal Processors).

                  The method tells what goes into the subroutine and what comes out. It really does not connect the inputs and outputs with anything. The subroutine only operates on the CPU and improves the CPU in no way, shape, or form.

                  The subroutine described implements an algorithm completely expressible in Church’s lambda calculus and is therefore a programmatic expression of a mathematical formula.

                  It is hard to see how this claim could possibly be allowable.

                  Now if this subroutine were running on a microprocessor reading the outputs of a clock chip and writing the inputs of a BCD LED display in an early electronic clock, it might be possible to transform this attempt to claim a mathematical formula into a legitimate method claim associated with the system consisting of the hardware and software of the electronic clock, and the claim then would no longer be completely expressible in Church’s lambda calculus.

                4. “the claim is easyly worked around and”

                  It doesn’t look “easily” “worked around” to me. Not if we’re still going to be doing binary to bcd conversion via the applicant’s abstract conversion idea. Maybe the patentee could have told the USSC how easy it was to “work around”. O wait, they didn’t!

                  “for example store the binary coded decimal in something other than the reentrant shift register of step (1).”

                  O rly? Such as? Don’t be shy brosef. Tell me (and the USSC and the whole world) all about this other thing that does magical shifting of bits reentrantly (because you’re going to need to do those things to do the abstract idea as set forth by the applicant) and which IS NOT a reentrant shift register.

                  “Alternatively, one could convert the BCD by mapping the values in each BCD position to a corresponding binary value (like in a look up table) and do binary arithmetic calculations based on those values to arrive at a single binary value.”

                  First, if you do it your way then you’re not really using THE (antecedent basis intended) abstract idea of the specific binary to bcd conversion as it was laid out by the inventors which was recounted for you in the decision. You’re just coming up with another abstract idea and using that abstract idea instead. You’re just telling us an alternate way of accomplishing bcd to binary on a compooter that comprises, rather than actually doing THE BCD to binary “conversion” (which they have patented all ways of doing) formula you instead just do binary to bcd “lookup” (and maybe add some other math on at the end). That’s different than actually being able to use the admittedly abstract method of conversion they came up with.

                  Essentially you’re just saying, “nevermind that we’ve patented this abstract idea, there are plenty of other abstract ideas that you could use instead (and don’t worry about doctrine of equivs we’d never try to use thaaaaat!)”.

                  Second, from what I can recall of binary and bcd from my school days what you’re proposing would be an immensely complex undertaking for each little conversion, so much so the computers of the day likely wouldn’t even be able to do it and even if they could do it then you’d likely nullify the whole point of putting things into BCD in the first place (and thus nullify needing to translate them back to binary later) thus making the actual doing of that worthless. Again, you will not have provided a viable alternative for any real world use.

                  Oh and third, doctrine of equivs? Ooooo burn, your method might still infringe!

                  Remember lester, you’re using this:

                  link to en.wikipedia.org

                  Note its nickname, can’t add, doesn’t even try because it had to use lookup tables just to add (in binary I presume) lol.

                  You’re not using the computer you’re talking to me on now.

                  ____________________________

                  Finally Lester, you have to remember that none of your arguments made today were made by the patentee. Even if I was persuaded they done bonked up ON THE FACTS in that case then it wouldn’t matter because they got the law right. And also he was free to so argue and chose not to. An argument (even the “correct” argument) made 50 years too late isn’t timely made. The process goes like this. Guy gets patent and accuses someone. Defendant says but but but it looks like he’s trying to cover all uses of the abstract idea he disclosed! Judge says yeah it does look like that may be the case, do you have anything to say Mr. patentee? If he then remains silent or solely spouts bs, he risks losing his patent.

      1. 9.1.2

        “The Patent Office now cannot examine applications for programs because of a lack of a classification technique and the requisite search files. Even if these were available, reliable searches would not be feasible or economic because of the tremendous volume of prior art being generated. Without this search, the patenting of programs would be tantamount to mere registration and the presumption of validity would be all but nonexistent.”

        So, the SCOTUS is in a position to make a factual finding like this? No they are not. This is one of the most shameful statements in the history of jurisprudence. This one statement illustrates what the public policy of Benson was to generate the nonsense to exclude information processing. Shameful. Read Chisum’s paper on Benson. 16 uses of algorithm. Benson is a shameless hack job.

        1. 9.1.2.1

          “So, the SCOTUS is in a position to make a factual finding like this? No they are not. ”

          They were repeating official reports of the day, the factual content of which was determined by other branches of the gov.

        2. 9.1.2.2

          “Read Chisum’s paper on Benson. 16 uses of algorithm. ”

          Interesting, I don’t recall that in his paper. Post whatever paper you’re talking about.

          And even if it be so, why could the patentee not be bothered to tell us any of these “16 uses” that Chisum is dreaming up 50 years later? Perhaps they were not conceivable at the time?

      2. 9.1.3

        Moreover, Go, let’s talk about reality and not your swirling nonsense. Reality: the USA is the number one country by an order of magnitude in information processing industry. The information processing industry has gone from like 5% of GDP to 20% of the GDP since patents have been given in information processing.

        Your continued nonsense that there is this dire condition that patents have created and that they have destroyed software is just plainly —now here is a word you don’t know–FACTUALLY wrong.

        1. 9.1.3.1

          Go reminds me of a bright enough an eager young lad, who went straight from his comfortable liberal arts undergrad degree right into law school where he excelled at parroting back what the professors wanted to hear, into a large law firm where he cycled through the IP department on his way elsewhere.

          Zero real world experience and the barest scratching of the surface on patent law, with no appreciation whatsoever for the history of innovation.

          Polite enough for a youngster, but head already filled with koolaid and an inability to assess the nonsense that he has been fed since he has no real world experience to judge the nonsense against.

          A person, pleasant enough, but with feet only in the academic world.

          1. 9.1.3.1.1

            Anon,

            Not that it is really relevant, but just so we know one another a little better, that’s not really my background.

            Undergrad in one of the engineering disciplines. Summer internships at several large corporations. Two years in industry before law school. I didn’t even know what a patent was before I entered law school, although I did have to sign several NDAs because several companies I worked for used trade secrets. Admittedly, none of this experience is in computer science. Although I did quite like programming in undergrad.

        2. 9.1.3.2

          Night,

          As we’ve discussed, everyone here agrees that information processing is important to the economy. That factual conclusion does not lead to the conclusion that information processing is eligible under current law. Or at least, that has not been explained.

          1. 9.1.3.2.1

            A claim that information processing is being harmed is the justification for the judicial activism of the SCOTUS and Fed. Cir.

            State Street was good law for many years and the SCOTUS turned down a cert request.

            No real science trained person could think that information processing machines should not be eligible. It is from a 30,000 foot view absurd.

            1. 9.1.3.2.1.1

              Night,

              I think you and I agree more than you might think. I want to stress, again, though, that I don’t think our disagreement has anything to do with technology. We both think information processing machines are very, very important and have a huge impact on our economy. We both think, that a properly claimed information processing machine is eligible.

              Where we seem to differ is on how to properly claim such machines, a purely legal question. And again, I’d like to stress that eligibility problems are not confined to data processing. Mayo is again a great example.

              1. 9.1.3.2.1.1.1

                Maybe. We would have to delve into the disagreement more. I would ask you, though, to incorporate into any argument of yours the way real PHOSITA describe machines on websites like elance.

              2. 9.1.3.2.1.1.2

                Go Arthur: I’d like to stress that eligibility problems are not confined to data processing. Mayo is again a great example.

                I would argue, Go Arthur, that Mayo is a great example of a data processing claim, albeit a non-computerized one (which might be what you were referring to).

                That’s because the only “new” step in Prometheus’ claim was the step of interpreting data in a “new” manner.

            2. 9.1.3.2.1.2

              “State Street was good law for many years and the SCOTUS turned down a cert request.”

              What a blunder. I had been wondering whether the supremes turned down cert. You sure they did?

          2. 9.1.3.2.2

            What reality is Go is that Google wants patents diminished big time. That is part of the public policy statements. They are the biggest giver to Congress. They are getting their way. That is the big picture of what is going on. That is why Obama is appointing ridiculous people to the Fed. Cir. If they had integrity, they would admit that they don’t understand technology and resign.

        3. 9.1.3.3

          Correlation is not causation. A large, complex and rapidly changing industry provides plenty of opportunities to capture incremental profits by pursuing patent activities.

          For example, back in the 80’s when IBM sued Sun over 7 patents. Eventually IBM told them “OK, maybe you don’t infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?”

          IBM is monetizing its patent portfolio, [and making a nice chunk of change] but this 20 million dollar transaction had nothing to do with the growth of the US IT Industry.

          1. 9.1.3.3.1

            That is so simplistic. I was a developer starting back in the late 1970’s for some time.

            I know what the patent system did.

              1. 9.1.3.3.1.1.1

                Must you follow me around and pester me 6. You have been doing it now for like 8+ years. Don’t you tire of pestering me?

      3. 9.1.4

        Benson is one of the worst written cases I’ve ever read. It has so many internal inconsistencies and is particularly egregious given the 50+ years of innovation since then.

        For instance, to me, this statement means nothing implemented by a computer can be patented:

        “It is conceded that one may not patent an idea. But in practical effect that would be the result if the formula for converting BCD numerals to pure binary numerals were patented in this case. The mathematical formula involved here has no substantial practical application except in connection with a digital computer, which means that if the judgment below is affirmed, the patent would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.”

        Yet, they explicitly state that they are not saying that their decision prevents patents that use computers (even though they just said the opposite).

        It’s a terribly written decision that makes Alice look well written.

        Furthermore, if you limit the algorithm for converting binary to BCD to solely implementation on a computer, then why would that be a “patent on the algorithm itself”? You could then perform the algorithm in your head, on paper, in books, etc., but not on a computer. Granted, the claims did not limit themselves to implementation by a computer, but there is indication in Benson that it wouldn’t matter whether the claims were limited to a computer (although, again, the wording in Benson is so hard to read it’s unclear what they were trying to say).

        1. 9.1.4.1

          The problem stems from this statement:

          the “practical effect would be a patent on the algorithm itself” as if that was a problem and as if there was some prohibition against patenting an algorithm.

          Algorithm is just another word for process and processes are patentable…why look…processes are even the first category listed!

      4. 9.1.5

        Go,

        Along the lines of “reasonable, even prescient,” what do you make of this portion of Benson:

        “It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.

        1. 9.1.5.1

          Anon,

          I agree that they so held and that computer programs are not categorically excluded from eligibility.

    2. 9.2

      NWPA Wrote:  That those art units that are giving rejections and citing Alice seem to have two ways out for us. One, integration like Diehr,.”

      That’s because no Examiner, Judge or Attorney can overcome the Supreme Court’s Integration Analysis. Many on this blog have tried. And ALL have failed. But of course you have to get your Examiner, Board or Judge to actually engage in an Integration argument. Most seem to simply ignore it, and use or make up some other test. But that strategy will fail at the Supreme Court, as we will see in the near future.

      1. 9.2.1

        And for those that claim they do not know how to apply Integration Analysis, there is no better text or instruction than the exact words of the Supreme Court itself. We begin with…

        “While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.” Mackay Radio & Telegraph Co. v. Radio Corp. of America, 306 U.S. 86, 94 (1939). 11

        We think this statement in Mackay takes us a long way toward the correct answer in this case. Arrhenius’ equation is not patentable in isolation, but when a process for curing rubber is devised which incorporates (Integrates) in it a more efficient (inventive) solution (application) of the equation, that process is at the very least not barred at the threshold by 101.( Diamond V Diehr) [ Words, integrated, inventive, application , are added from Prometheus case for comparison purposes ]

        In the Prometheus case the Supreme Court reconciled Diehr with Flook and it’s other precedents with
        Integration Analysis. As you read, note the use of the interchangeable keywords that reconcile the two cases.

        Integrated =incorporated
        Inventive = more efficient
        Application = solution

        “Diehr and Flook, the cases most directly on point, both addressed processes using mathematical formulas that, like laws of nature, are not themselves patentable. In Diehr, the overall process was patent eligible because of the way the additional steps of the process integrated ( incorporated) the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive ( more efficient) application (solution) of the formula. But in Flook, the additional steps of the process did not limit the claim to a particular application (solution), and the particular chemical processes at issue were all “well known,” to the point where, putting the formula to the side, there was no “inventive concept” in the claimed application (solution) of the formula. 437 U. S., at 594. Here, the claim presents a case for patentability that is weaker than Diehr’s patent-eligible claim and no stronger than Flook’s unpatentable one. The three steps add nothing specific to the laws of nature other than what is well-understood, routine, conventional activity…”

        By the way, the further you integrate an exception the more you limit it’s reach. This limitation of reach is objectively determined by the preemption inquiry. ( See Diehr, Prometheus)

        Now that we are grounded by Supreme Court case law we can create some basic rules to efficiently and accurately apply the Court’s Integration analysis to actual claims.

        Rule 1. Old concept + inventive application ( more efficient solution or result) = eligible. (For example, a more efficient solution for curring rubber.)

        Rule 2. Inventive concept + old application = eligible. ( Diehr lacked an inventive concept according to Flook, but had an inventive application according to Prometheus, so it was still eligible. )

        Rule 3. Old concept + old application=ineligible subject matter.
        In Prometheus the law of nature, though newly discovered, had always existed and was old and the steps for applying it were well known… The claim was therefore ineligible according to Supreme Court precedent. Had the process been further integrated into an inventive application as in Rule 1 above, the claim would have been eligible subject matter.

        Same rules apply to Alice. Intermediated settlement, like hedging in Bilski was a well-known fundamental economic concept. Integrating the concept into a computer system, Rule 3, was not considered inventive by the Court. But had the inventors integrated the old concept running on a computer system into another process that was producing a more “efficient solution”, as was the case in Diehr, you would have an inventive application, Rule 1, and therefore eligible subject matter. And this is why Ultramercials claims are patent eligible subject matter as well.

        Conclusion

        While applying an Integration Analysis is not as simplistic as the bright line test of MOT, if you take the time to actually “think” it through in an “intellectually honest” manner, you will find that it works in a very fair and efficient way for establishing patent eligible subject matter, that incorporates, and is based purely on Supreme Court precedent.

  3. 8

    Moved to the top because the format below is cumbersome:

    Les: the objective physical structural differences between the prior art and new machine are at the level of the state of charge (number of electrons) at various points in the circuitry

    Great. So let’s get this straight. In response to my earlier point about the special eligibility issues created by the typical computer-implemented information-processing claims (which necessarily raise subject matter eligibility problems because of their relation to ineligible abstractions and the application of logic to those abstractions) you argued that “there was nothing special about computers.”

    Now, apparently, you admit that there is something very special indeed about them. Specically, you argue now that the objective structural difference between a computer ‘configured to perform function X” and “a computer configured to perform function Y” are apparently so tiny that it would be unfair and burdensome to require “innovators” to describe those differences.

    What we seem to be proposing instead is that we should allow judges (“activist judges”, I think, is an accurate description, if I may borrow the phrase) to create a special exception for this class of manufactures. Whereas other apparati need to be distinguished from the prior art on the basis of their objective structural differences, “improved” information processing/storage apparati falling within the exception can be distinguished from the prior art solely through the recitation of some “new” information processing functionality. And the reason for that, again, according to you, is that requiring structural detail would be “impractical.”

    Do I have that correct, Les? I want to be sure because, as someone who has prosecuted applications describing and claiming the 3 dimensional structures of new and highly complex compositions of matter at the atomic level, your argument for this exception isn’t terribly compelling. Let me know.

    1. 8.1

      Because… cumbersome…

      Um sure and how nice that you feel that you can make your own “rules” becuase the site’s system is too ‘cumbersome’ for you.

      Let’s see how many other bogus things you have going on here…

      Well the easy one to see is your false pretense that somehow it is judges that are ‘allowing’ a different claim format that your optional one of “objective physical structure.”

      That’s a big one.

      You also err in your spin about small changes, falsely equating this to inconsequential changes.

      Small does not mean inconsequential and further, you are aware that the claims are to be understood by Persons Having Ordinary Skill In The Art. You appear to want to forget about the last part of that clause (again).

      You do know that it was Congress that blessed the use of terms sounding in function in 1952, and they did so in more than just 35 USC 112(f), right?

      Les is absolutely correct here – the plain law is being used by those claims software inventions in a perfectly ordinary and allowed manner.

      Also, as has been pointed out, a 210 page, painstakingly detailed “objective physical structure” claim is possible or any software claim. But such a claim while meeting your “standards” would be impossible to actually provide any meaning to any reader of the claim, swamping all readers in unnecessary minutia, and virtually making examination truly impossible.

      It is a false statement to say that such “objective physical structure” claims would be readily accepted by you.

      You have been let known.

      1. 8.1.1

        “Also, as has been pointed out, a 210 page, painstakingly detailed “objective physical structure” claim is possible or any software claim. But such a claim while meeting your “standards” would be impossible to actually provide any meaning to any reader of the claim, swamping all readers in unnecessary minutia, and virtually making examination truly impossible.”

        Bro any claim longer than 2 pages usually gets the ol’ allowance treatment pretty quick. If your claim be 200 pages long I wouldn’t doubt that “examination” could proceed fairly rapidly. Especially if we established a database especially for this purpose (just like in the chem arts).

      2. 8.1.2

        “It is a false statement to say that such “objective physical structure” claims would be readily accepted by you.”

        What makes you think MM would be opposed to such “objective physical structure” claims?

        1. 8.1.2.1

          What makes you think MM would be opposed to such “objective physical structure” claims?

          Great question. Particularly when I’ve stated the exact opposite on numerous occasions.

        2. 8.1.2.2

          What makes me think that?

          The games and moving of goalposts coupled with the statement from Malcolm that NO software is patent eligible – whatsoever.

          1. 8.1.2.2.1

            You have a rather profound misunderstanding of what MM and I have argued here for years bro. Profound. I suppose this is to be expected of course since if you did understand us you wouldn’t argue the way you do, constantly setting up this or that tiresome strawman etc.

            But here, let me explain to you anon that MM doesn’t really mind the “software” itself (in so far as “the software” here is just literally for instance a plastic cd disk with pits engraved in it laying on a table somewhere irl) being “eligible”. What he takes issue with is abstracting from that disk with actual irl pits engraved on it to ALL disks with pits engraved any ol whichaway that happens to accomplish a function when combined with a totally different machine (something to read and execute the instructions). You can extrapolate that position on disks with pits engraved to whatever medium you want to through various descriptions. And what he takes double issue with is then making a legal claim to the same. By having done so, you’ve turned the cd with some pits on it irl into an abstraction that you want to patent upon, in essence, the “idea” of a cd/whatever medium that will make a computer do x.

            To be clear, neither do I really, and neither does anyone else, so long as you continued from that point on to follow the same rules as everyone else. AND that also includes at least some of us liking to see PMD eliminate claims such as that from being patentABLE under 103.

            Remember, MM still makes $$$ describing the microstructure of objects for a living and he totally wants those to remain eligible. He doesn’t mind one whit if you’d like to do the same, in just the same fashion as he is made to (quite reasonably). Remember, his art was once “young” in terms of patent law and went through nearly the exact same transformation as software is now.

            Also to be clear, wouldn’t hardly anyone give two shts about your softiewaftie claims if they were limited down in usefulness to the same levels as claims in other arts are. But, as you yourself have noted, most of the “valuable” patents relate to that art, not just because of ubiquity of such devices used/made in society, but because of the comparative ease of establishing huge scope due to the policy of coddling in effect. And nobody would care because, as you and NWPA both concede iirc, your claims would all be worthless. 100% worthless. But then you turn around and use that as an excuse to beg favorable coddlings. And they give them to you. That’s what we protest. And I know, I know, you don’t think they are favorable coddlings.

              1. 8.1.2.2.1.1.1

                My description of my own, and something pretty close if not exactly the same as MM’s, position(s) is “completely off”?

                I see.

                1. Your opinions are your own – anything else, anything substantive is – as I said – off.

                  You do understand how that works, right?

                2. Your opinions are your own – anything else, anything substantive is – as I said – off.

                  You do understand how that works, right?

                  What we all understand, “anon”, is that you’re an a hole pr*ck who can’t reason his way out of a cardboard box.

                3. Brush aside the vulgarities (love to see Malcolm do that in court), and the baseless opinion of one who has been repeatedly whipped in debates, and you have…

                  … absolutely nothing.

                  How typical.

            1. 8.1.2.2.1.2

              > NWPA both concede iirc, your claims would all be worthless. >100% worthless. But then you turn around and use that as an >excuse to beg favorable coddlings.

              Information processing is coming close to 20% of our GDP under the nurturing of the patent system. A few large companies with lots of money to spend inside the beltway have decided they don’t want patents.

              That simple.

            2. 8.1.2.2.1.3

              ” By having done so, you’ve turned the cd with some pits on it irl into an abstraction that you want to patent upon, in essence, the “idea” of a cd/whatever medium that will make a computer do x. ”

              But no other art is limited to picture claims.

              The Wright Bros. didn’t claim a single flying machine. The claimed every flying machine having a certain set of characteristics…in which some portion of the wing could be moved out of the plane of the wing, to name one characteristic…

              So, why do you feel it is appropriate to limit software to picture claims?

    2. 8.2

      “And the reason for that, again, according to you, is that requiring structural detail would be “impractical.””

      And that is what all this boils down to. Alleged impracticality being used to justify gross over-reach.

      I mean, here’s the thing, if the congress spoke then I’d be all for it. It doesn’t make sense to me, but if the congress backs it then fine.

      Then, people may go to court and have whatever section that the congress thus spake in challenged in open court for all the usual reasons.

      Without the above though I just can’t support this blatantly illegal carryin on.

    3. 8.3

      “improved” information processing/storage apparati … can be distinguished from the prior art solely through the recitation of some “new” information processing functionality.

      Sure, why not? That is, so long as the resulting claim is definite, enabled by the specification, and doesn’t simply preempt all applications of an abstract idea. Where you go wrong in your analysis is your insistence that this is some kind of “exception.” Perhaps they don’t work well in your area, but functional limitations are used in lots of technical areas to objectively define a definite class of structures.

      1. 8.3.1

        “Where you go wrong in your analysis is your insistence that this is some kind of “exception.””

        It is an exception. We don’t allow that nonsense in my art. We don’t allow that nonsense in MM’s art. It isn’t allowed in the kitchen arts. I don’t even know any other arts where such is allowed.

        1. 8.3.1.1

          We don’t allow that nonsense in my art. We don’t allow that nonsense in MM’s art.

          You don’t allow functional limitations in your art? Which art is that?

          If you’re not referring to functional limitations, which “nonsense” exactly is it that you don’t allow? And why not, if you can explain without simply falling back on “it’s nonsense”?

          thanks!

          1. 8.3.1.1.1

            “You don’t allow functional limitations in your art?”

            I didn’t say that we “don’t allow functional limitations in my art”. I said we don’t allow the sht that goes on in the softiewaftie world re functional limitations in my art.

            For art, what we (and the people in MM’s art) do with a functional limitation is the sensible thing to do. We look the spec to see what STRUCTURE (as in the objective physical structure) that the applicant is disclosing as performing that function. Then we go find that, or something else doing that function or which appears would do that function and apply art as appropriate. This is how “examination” hems in functional nonsense. But it can’t in the softiewaftie world because “policy of coddling” is in effect. Should the applicant not have a structure that can perform that function shown, then we will make sure to object to the drawings until it is well depicted, and no, “black boxes” are not acceptable. And if they disclose the structure that performs that function at as a hugely generic structure, then all we’ll find is the hugely generic structure and apply that.

            We will also eval the claims under 112 1st and second and will not hesitate to use 112 1st if the need should arise. If it appears the applicant has not fully described the invention (given us enough species etc.) he may well hang for 112 1st. OOOOOhhhh but wait, if it is on a compooter you don’t need to give any species whatsoever to have fully described the supposed “invention”.

            This is the last time I go around in this circle with you DanH.

          2. 8.3.1.1.2

            You don’t allow functional limitations in your art? Which art is that?

            The last time the Supreme Court spoke on the issue, it was pretty clear that functional claiming was invalid.

            Perhaps they don’t work well in your area, but functional limitations are used in lots of technical areas to objectively define a definite class of structures.

            And this would be the one time that it is valid. Software is definitely not this situation though, and I question whether “lots of technical areas” would fall into your camp here.

            In my experience, the majority of time functional language is used is not because you have all the answers and no other way to convey them, it’s used specifically because you don’t have all the answers and are trying to capture the ones you don’t have. Software is certainly replete with this – the inventor writes one code which achieves the result, doesn’t disclose the method performed to reach it, and then claims it functionally to try and capture every other route anyway. That use of functional language is commonplace today and has always been wrong.

            1. 8.3.1.1.2.1

              The last time the Supreme Court spoke on the issue, it was pretty clear that functional claiming was invalid.

              Cite please.

              (and let’s note the relation to the 1952 Act, which opened up that Vast Middle Ground that you cannot seem to comprehend)

              1. 8.3.1.1.2.1.1

                Halliburton.

                Now let’s cite to where in the 1952 act a vast middle ground was opened up? Because all I see is an optional means-plus style which few avail themselves of.

                1. Halliburton was pre-1952 and abrogated by the words of Congress.

                  This has been explained to you previously (See Frederico)

                2. That’s all anyone else sees, except our dearly departed judge Rich who thought it meant a wild wild west and everyone was like: OK!

            2. 8.3.1.1.2.2

              The last time the Supreme Court spoke on the issue, it was pretty clear that functional claiming was invalid.

              It seems to me that you’ve changed the subject, from “functional limitations” to “functional claiming.”

              I’m not arguing that a claim that is directed to nothing more than a single function is valid.

              1. 8.3.1.1.2.2.1

                Bingo.

                See also the goal post movement activies of trying to switch conversations to claims that are PURELY functional or claims that are undertaken TOTALLY in the mind.

        2. 8.3.1.2

          6 obviously does not understand In re Orthokinetics, much less 35 USC 112(a), (b) in addition to (f).

          1. 8.3.1.2.1

            6 obviously does not understand In re Orthokinetics, much less 35 USC 112(a), (b) in addition to (f).

            That’s possible. Another possibility is that we’re not talking about exactly the same things, so we’re talking past each other. But I suppose your approach gets us to the insults more quickly.

            1. 8.3.1.2.1.1

              That’s not my approach – that’s to whom the approach is going to (sorry, but those outside the Malcolm bubble automatically get insulted).

          2. 8.3.1.2.2

            It doesn’t have anything to do with “not understanding” something out of the federal circuit. I know what their thinking is on the subject quite well. As I have explained at length, the federal circuit, the people on it, and the nonsense pouring out of it is precisely the problem.

            Tho glancing through that decision reveals nothing of special controversy to me.

      2. 8.3.2

        DanH: functional limitations are used in lots of technical areas to objectively define a definite class of structures

        First, there is no “definite class of structures” being “objectively defined” by the recitation of the infinite varities of information or the of varieties logical processing “functionalities” for dealing with that information.

        “Contract”. What’s the “definite class of structures” corresponding to that meaning?

        “Determine if the contract is a housing contract then put a star in the folder.” What’s the “definite class of structures” corresponding to that functionality?

        Where you go wrong in your analysis is your insistence that this is some kind of “exception.”

        On the contrary, it’s a massive glaring exception and it was created with a complete lack of consideration for the problems that any thoughtful person could see coming miles away. It’s the reason why patent trolls became a problem. It’s the reason patent lawyers got into the patent game like never before. It’s the reason for patent reform. It’s the reason for Bilski. It’s the reason for Alice. And, indirectly, it’s the reason for Myriad.

        By effectively removing a requirement for the rectitation of new physical structure or new physical transformation from the system and by allowing instead for abstractions to become “limitations” and “new” logical steps to become “structures”, the patent system fired a shotgun directly into its own face. Neither the case law nor the statutes nor the PTO (especially the PTO!) was set up or designed to deal with the inevitable onslaught of basement level logical “innovations” that pretty much every person on earth can dream up ad nauseum and reasonably expect to get a patent on once this exception for information-processing machines was spontaneously rubber-stamped into existence.

        We all know who benefitted from this: patent attorneys (the least technically skilled ones, especially) and the professional grifters who saw the golden opportunity to get rich before the gates started closing (and who are, predictably, complaining loudly that “we’ll all be sorry” when their milk cow goes dry).

        1. 8.3.2.1

          Sorry, I thought we were talking about all claims that involve information processing, not just those that recite “determine if the contract is a housing contract then put a star in the folder.”

          I agree with you that claims that differentiate themselves only by the information content in whatever data is being processed are not valid. But your statements about software-implemented claims seem to be much more sweeping than that. I haven’t seen anything in Alice or elsewhere that precludes a claim to a computer configured to carry out a new, non-obvious, and useful combination of operations, where those operations have a meaningful connection to something tangible.

          1. 8.3.2.1.1

            DanH, for starters, let me just say that I always enjoy discussing our disagreements and agreements on this issue when it can be accomplished without distraction. Your insights are always welcome and I don’t have to guess about what you are talking about. We both know there are often some major distractions here that prevent a more productive discussion.

            I haven’t seen anything in Alice or elsewhere that precludes a claim to a computer configured to carry out a new, non-obvious, and useful combination of operations, where those operations have a meaningful connection to something tangible.

            I haven’t either. Going forward, of course, everyone’s focus is going to be on the scope of the last clause in your statement: where those operations have a meaningful connection to something tangible.

            I think we both agree that there’s more than a bit of fuzz around that phrase “meaningful connection.” My ongoing concern is that, when it comes to evaluating information processing — including “logical improvements” to existing information processing “structures” — that the determination of when a “connection” to “someting tangible” is “meaningful” or not is something that judges looking at isolated claims are going to have an extraordinarly difficult time with.

            It seems to me that most of the case law and fundamental considerations that we’ve used (and will continue to use) for evaluating innovations in the physical world are going to come up short when we try to apply them to innovations in logic. In part, my view is colored by the disastrous efforts of our patent system to recognize the easy problems that are presented when such innovations enter the patent system.

            1. 8.3.2.1.1.1

              My ongoing concern is that, when it comes to evaluating information processing — including “logical improvements” to existing information processing “structures” — that the determination of when a “connection” to “something tangible” is “meaningful” or not is something that judges looking at isolated claims are going to have an extraordinarily difficult time with.

              Understood. One good place to start is with the Supreme Court’s acknowledge that the MOT test is a useful tool. We haven’t seen any good cases for developing that idea – so far the high profile 101 cases have all involved claims that were relatively easy pickings on the “abstract idea” front.

              I wish I had more time to discuss it, but I’ve got claims to write…

        2. 8.3.2.2

          You are (again) asserting things as facts without establishing the foundation to do so.

          The last time that I asked (politely even) for you to establish the things that you want to hold out as facts, you ran away in a cloud of insults.

          What are the chances of a repeat performance?

          (As if this has not been happening eight years and running)

        3. 8.3.2.3

          On the contrary, it’s a massive glaring exception… By effectively removing

          Since it was Congress – the branch of the government authorized by the Constitution- that wrote this law, you seriously appear to be deeply confused as to what is an exception to law and what is the law.

          That you might not “like this” really does not change what the law is. That you wish to pass your (typical) foul mouth judgement is also quite immaterial.

          So once again (ahem moderators), we all get to enjoy yet anothe repeat performance of “grifters” from the single person most lacking in any decency in his posting habits.

          Eight years and running – how much of this pain is enough?

    4. 8.4

      “Now, apparently, you admit that there is something very special indeed about them. Specically, you argue now that the objective structural difference between a computer ‘configured to perform function X” and “a computer configured to perform function Y” are apparently so tiny that it would be unfair and burdensome to require “innovators” to describe those differences.”

      No, not at all… You dreamed up the “objective structural difference” requirement. I was merely living within that paradigm for discussion purposes.

      I agree with the courts that algorithms are “structure” for the purposes of patent law.

        1. 8.4.1.1

          They didn’t. They haven’t held that “algorithms are ‘structure'” for any purpose. They have held, however, that a computer processor married to a specific algorithm is a structure, and that it can be a new structure at that.

        2. 8.4.1.2

          link to groups.csail.mit.edu

          My personal favorite early example of this sort of baloney is In re Lowry (CAFC 1994), where the “great” Judge Rich (remember that name!) along with Judge Skelton and Judge Rader (remember him?) stated that “a collection of bits having information about relationships between [“attribute data objects”] … is the essence of electronic structure.” That conclusion, by the way, immediately follows the admission that the “the stored data adopt no physical ‘structure’ per se”.

          Try to believe it. And remember: Judge Rich is the same guy who apparently couldn’t figure out why the subject matter eligibility requirement becomes toothless if you disallow consideration of the prior art when performing the analysis.

          Getting back to In re Lowry, the fact that this “relationship” undescribable in structural terms (and was certainly not recited in the claims) was hand-waved off by reference to a “classic” CCPA case, In Re Bernhard where a claim to a programmed computer was approved by virtue of it having been “changed”, even though those changes were “invisible to the eye.” Left unaddressed by Bernhard (and we all know why) was the fact that all kinds of changes to compositions in other fields are “invisible to the eye” and yet applicants in those other fields are nevertheles required to disclose them.

          And so, just like that, the “art” of dreaming up information-processing “innovations” and claiming them was completely divorced from the art of actually programming one of the myriad different kinds of information processing machines that existed in (and exist now). And four years later Judge Rich blessed us all with State Street Bank. The money line from that case:

          the transformation of data, representing discrete dollar amounts, by a machine through a series of mathematical calculations into a final share price, constitutes a practical application of a mathematical algorithm, formula, or calculation, because it produces ‘a useful, concrete and tangible result’ — a final share price momentarily fixed for recording and reporting purposes and even accepted and relied upon by regulatory authorities and in subsequent trades.

          Someone relied upon a number calculated by a computer! And money! Therefore “concrete” and “tangible.” Therefore: eligible for patenting. It’s almost impossible to believe it actually happened. But that’s the kind of “logician” and deep-thinker that Judge Rich was. A real genius.

      1. 8.4.2

        You dreamed up the “objective structural difference” requirement.

        No, I certainly did not “dream that up”. Thousands upon thousands upon thousands of patent claims are rejected based on the lack of such differences all the time. And that’s going to continue happening … forever.

        I agree with the courts that algorithms are “structure” for the purposes of patent law.

        But algorithms themselves are not eligible, of course. They are abstractions. They have no “structure”.

        So what you are really admitting is what you earlier denied: computers are “special.” And the reason they are “special” is because, as you just finished telling me, the differences between an old computer and a “new” computer are really, really, really, really small.

        But the problem of “tiny” differences is true of other compositions of matter as well and this “function alone is okay” exception doesn’t apply to those compositions of matter. Moreover, those other compositions of matter don’t necessarily implicate subject matter eligibility issues which information-processing “functionalities” always do (because information and logic are ineligible for patent protection).

        I’m glad, though, that at least you’re acknowledging that the legal fiction of “algorithm is structure” was created by the courts. That should help put a cork in your inevitable complaining when the courts realize that they made a gigantic mistake.

        1. 8.4.2.1

          …and yet interestingly enough, you refuse to discuss the legal concept of inherency, the fact that software is a machine component and a manufacture in its own right, nor how an “old box” with no changes can ‘magically’ have a new capability…

          Perhaps you are far too concerned with other peoples’ um ‘corks.’

          1. 8.4.2.1.1

            software is a machine component and a manufacture in its own right

            Really? How much does it weigh?

            1. 8.4.2.1.1.1

              We’ve been over this dust cloud you’ve attempted to kick up before.

              You do realize that the weight of printed matter is not material to any legal point here, right?

            2. 8.4.2.1.1.2

              While electrons have mass and your irrelevant question could be answered for a given embodiment, I would instead note that the configuration of the wood, cloth and rope that Wilbur and Orville claimed was weightless.

              To be clear, the wood, cloth and rope had mass. But the wood, cloth and rope were all old and not patentable by themselves. What made the combination patentable was the new configuration. The configuration was just information and weightless.

        2. 8.4.2.2

          Once again, your interpretation of the law is at odds with that of the patent Office:

          Method and apparatus for inverse fast fourier transform (IFFT) in communication system
          US 8724716 B2

          Application number US 12/327,796
          Publication date May 13, 2014

          1. A method for an Inverse Fast Fourier Transform (IFFT) in a communication system, the method comprising:
          determining an IFFT size based on a number of input information symbols, the IFFT size being the smallest power of two (2) that is greater than or equal to the number of input information symbols; and
          performing an IFFT operation based on the determined IFFT size,
          wherein the performing of the IFFT operation based on the determined IFFT size comprises:
          determining a number of butterfly corresponding to the determined IFFT size, and
          performing a butterfly operation based on the number of butterfly,
          wherein the butterfly operation includes processing the information symbols based on corresponding at least one of radix-22 and radix-2 patterns.

          link to google.com

        3. 8.4.2.3

          “algorithms themselves are not eligible, of course.”

          Processes are eligible. Check the list:

          Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

          The term “process” means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

          Processes, methods etc. are algorithms.

          al·go·rithm
          ˈalɡəˌriT͟Həm/
          noun
          noun: algorithm; plural noun: algorithms

          a process or set of rules to be followed in calculations or other problem-solving operations, especially by a computer.
          “a basic algorithm for division”

          Which briiiingssss usssss baaaaaack toooo Doh!

          1. 8.4.2.3.1

            Les,

            Sorry for restating the obvious, but you do realize the statutory categories have a few ‘exceptions?’ Algorithms arguably fit into a ‘process,’ but also arguably fit into one or more of those exceptions. It is just not as simple as you’d like, I believe.

            1. 8.4.2.3.1.1

              Arthur –

              I am aware that activist judges have attempted to legislate from the bench. However, the statutes are clear…. and processes are algorithms and processes are statutory.

              Additionally, as I noted at 8.4.2.2, the patent office continues to grant patents to algorithms.

              so….

              1. 8.4.2.3.1.1.1

                Les,

                Just curious. Would you advise your client that they could enforce this patent in a federal court?

                1. While my first response awaits moderation, I thought I would answer with this:

                  Altitude and acceleration command altitude hold algorithm for rotorcraft with large center of gravity range
                  US 8855837 B2 Application number US 14/100,526
                  Publication date Oct 7, 2014

                  What is claimed is:
                  1. An Attitude and Acceleration Command/Velocity Hold (AACVH) algorithm for a rotary wing rotorcraft flight control system comprising:
                  an attitude command model logic which generates an attitude command model logic output;
                  an attitude model logic in communication with said attitude command model logic output, said attitude model logic generates an attitude model logic output;
                  an acceleration model logic in communication with said attitude command model logic output, said acceleration model logic generates an acceleration model logic output; and
                  a model following controller embodied on a microprocessor in communication with a cyclic controller, said model following controller in communication with said attitude model logic output and said acceleration model logic output, said model following controller generates an rotorcraft command to determine a trim attitude for a given rotorcraft flight condition, wherein said model following controller holds a constant attitude and a constant acceleration in response to said cyclic controller being held out of a center detent position.

                  link to google.com

  4. 7

    Presumably the PTO will issue its “abstract idea examples” well-before the March 15 submission deadline and, ideally, well before the January 21 forum.

    The website currently says those examples are “coming soon.”

    If the PTO would like to demonstrate a couple ounces of competence in this area, they can begin by reminding everyone that information and data itself are the quintessential examples of ineligible abstractions that can not be protected by patent claims. There is no “creative law making” involved in that statement.

    Next the PTO could state that legal relationships between people (“married” “contractually obliged”) or between people and objects (“owned”) are also quintessentially abstract. There is no “creative law making” there.

    Next the PTO could state that mathematical relationships (e.g., measurements and correlations) and the generalized steps of obtaining those relationships are also abstractions, as are the assigning of abstract “meanings” to both physical objects and other abstractions (e.g., “obtain data about X” or “put X in a spreadsheet table”). There is no “creative law making” there.

    Finally the PTO could recognize as the Supreme Court did in Mayo and Alice that ineligible abstractions such as those listed above are not converted into eligible subject matter merely by salting in prior art technology for its intended purpose (e.g., old data gathering technology or old data processing technology).

    As an alternative, the PTO could continue to bend over backwards for the “stakeholders” who want to prevent people from freely using old information processing technology for its intended purpose. But the PTO should recognize that it’s credibility — and the health of the patent system as a whole — is no longer measured by how many of its “stakeholders” cheer for the opened floodgates.

    Those days are over.

        1. 7.1.1.1

          It not me but one of the moderators that drew attention to excessive posting, and the trite attempt to gain “footprint” at the top of the thread with a post exactly like another one on the board is clearly an excessive post.

  5. 6

    From what I have noticed actually doing prosecution and interviewing examiners is the following: (1) the standards vary massively by art unit. Some art units I get no Alice rejections where it is software and I can’t see any difference than other art units. (2) That those art units that are giving rejections and citing Alice seem to have to ways out for us. One, integration like Diehr, or two like an EPO argument of an improvement in the operating of the computer.

    And I have had Alice rejections withdrawn.

    That is just one real patent attorney’s take on it. (Swirling nonsense based on swirling nonsense. Benson is the root of all evil in patent law.)

  6. 5

    Welcome back to the land of Bizarro editings.

    Here I was having a pleasant conversation with Go, drawing an important distinction between historical business method patenting and the mere philosophical impression of expanded patent coverage, politely warding off the intrusion from Malcolm, and the whole dialogue is eviscerated – while the plainly speaking outlandish L I E S of 3.1.1.1.1.1 go unchecked.

    Merely read the syllabus of the Bilski case to see that Malcolm is spewing C R P.

    The by line to this site needs to be changed. Let’s call it Malcolm’s Playground and Fantasy Land.

    1. 5.3

      >They are different. But I can think of an infinite number of things that are >more different and you probably could, too.

      It is just bizarre that someone can make statements like the above and not be shouted down. Bill Moyers had a series about this back around 2000. He says that our society lost its ability to deal with outrageously wrong arguments and everything became reality that everyone was apparently entitled to their opinion.

      Supposedly this started when Reagon ran for president the first time. You notice too that people that generally agree with the goal feel no obligation to support a common goal of truth and using scientific reasoning.

      I mean seriously. We are suppose to debate whether information and information processing are very different? Seriously? Let’s just argue whether or not the earth is flat or not or whether we really went to the moon. I can post many people that support both propositions.

      The sad thing about all this is that the judges that are on the fed. cir. with no science background are now being appointed en mass. Shameful. They don’t have the education to even begin to understand these arguments.

        1. 5.3.1.1

          NW Jane is not going to respect me nor is that Silicon Valley Chick.
          …nor is that Lee gal.

          You better take one of those sensitivity classes or you may end up b slapped, disrespecting boy.

      1. 5.3.2

        Another outrageously wrong assertion is about functional claiming. Just go to any website where software is bid out and look at the specifications. They are in the same form as the claims. So, people of ordinary skill in the art are using this functional language to communicate with one another a product design.

        1. 5.3.2.1

          Night Writer, we creators indeed use those types of specs to communicate about a product yet to be developed, or one that we already know. Development is more than design.

          We are taught to first define ideal problems in open neutral terms to promote exploration of multiple and new approaches to find optimal solutions*. This is the just the beginning of an innovation process. Non innovative organizations like the gov’t will typically specify every detail in their bids. Makes it easy to shop by price, impossible to be innovative.

          You have said that this later development is hard and important yet you actually argue out the innovation process as “routine”. This does not compute.

          *Contrary to 6’s recent theory, patented inventions are about useful solutions, of course they must bespecifically described sufficiently for us or the fictional skilled artisan to understand and develop routinely (i.e. without innovation).

      2. 5.3.3

        Or let’s have this argument. Electromagnetic waves are “transitory” according to our genius judges and not eligible for patentability. Radios and T.V. are not too different from electromagnetic waves. Ergo, radios and T.V.s should be ineligible just like those there transitory waves.

        Do you really want to allow your most prolific poster to blast us day in and day out with arguments like this?

        1. 5.3.3.1

          It is less the ‘blasting’ per se and more the refusal to take into account valid counterpoints raised for discussion.

          What you have is the internet age style of shouting down with the drive-by monologue model.

          What the moderators do not seem to grasp is that while the goal of invigorating a diverse ecosystem is a noble one, thinking that all and any opinions should be held to the same regard or should not be critically evaluated is simply not the way to get there.

          You hit the nail on the head Night Writer with your observation that there seems to be a Belieb that “no opinion is wrong” at all. It is a vestige of liberalism and unfortunately directly tied to a loss of ability to employ critical thinking.

          My Uncle Ben had a second saying that fits here: while it is ok to have an open mind, it is not ok to be so open that your brain falls out.

          Editorial policies that ignore this maxim actually diminish the ecosystem while aiming to protect it.

          Well over 90% of the posts here would be vaporized if a policy that prevented the C R P merry go round were to be adopted. If people were prevented from running away and forced to answer (and integrate) valid counterpoints, several well known posters would be silenced with their memes taken away.

          Of course, this is not a new proposition. I identified the exact problem more than two years ago now. Other posters, L O N G before me, also identified the problem.

          The question then becomes somewhat larger: why DO the moderators not take care of the obvious problem?

          Controversy – much like propaganda and the use of sex and violence in advertising – really does work. People say that they don’t want offensive titillation or violence in games, but look at what sells.

          Why would you think this blog is above that? Because it attaches a pretty by-line…?

          1. 5.3.3.1.1

            I was surprised when one of my friends told me that one reason so many people read this blog at the PTO is the enjoy all the fighting. He said it was fun to watch the battles.

            I was also surprised that I was so well-known. I guess I blogged on here thinking that maybe 20 people read what I wrote.

          2. 5.3.3.1.2

            My Uncle Ben had a second saying that fits here: while it is ok to have an open mind, it is not ok to be so open that your brain falls out.

            While I’ll be darned. We now know who you are – you’re Spiderman!

        2. 5.3.3.2

          Or let’s have this argument. Electromagnetic waves are “transitory” according to our genius judges and not eligible for patentability. Radios and T.V. are not too different from electromagnetic waves. Ergo, radios and T.V.s should be ineligible just like those there transitory waves.

          If the only new subject matter recited in a claim to a “new” radio or TV is that the TV/radio is “configured to “broadcast a show about hillbillies to people named Johnson living in states that end with a Y”, then your argument is pretty good.

          I have no idea why anybody would find this difficult or controversial. It’s also clear that people who do find it difficult or controversial are increasingly a shrinking population, particularly among the well-educated classes.

          Keep hacking away.

          1. 5.3.3.2.1

            Really, so a t.v. that could generate a “show about hillbillies to people named Johnson living in states that end with a Y” and then broadcast it shouldn’t be eligible?

            You see the information processing machines are transforming that information.

            >>well-educated classes.

            I’ve noticed that. Obama has to appoint judges without science backgrounds in order to get them to sign onto these arguments. Next he will be recruiting from rural areas without formal education or communication (like the USSR did) to get them to implement the NEW POLICIES.

            1. 5.3.3.2.1.1

              so a t.v. that could generate a “show about hillbillies to people named Johnson living in states that end with a Y” and then broadcast it shouldn’t be eligible?

              My view is more specific than that. A claim reciting a TV in the manner I described is certainly not eligible (and that is as it should be).

              That’s because TVs, radios and TV/radio broadcasting are old. A claim such as the one I described would protect the information that is televised. It turns practitioners of the prior art into infringers based on the information shown on the screen and/or the legal name of the person receiving the information. Of course it’s ineligible. It’s not different than trying to claim a “new” “reading apparatus” where the only new subject matter in the claim is the plot of the story or the identity/location of the reader.

              1. 5.3.3.2.1.1.1

                But that is not a fair characterization of information processing machines. You have done nothing but changed the goal posts to avoid your ridiculous statement that information and information processing machines are about the same.

                The T.V.’s process the received signals (and you are welcome to go back to a T.V. invented in 1950, for me I’ll take a newer one) just like the information processing machines process information.

                You are doing nothing but refusing to argue the point you made.

            2. 5.3.3.2.1.2

              Night,

              Everyone agrees that the first tv was patent eligible. MM’s example specifically stated:

              If the only new subject matter recited in a claim to a “new” radio or TV is that the TV/radio is “configured to “broadcast a show about hillbillies to people named Johnson living in states that end with a Y”, then your argument is pretty good.

                1. Go is, while polite, just as bad as Malcolm for not engaging all the points put up for discussion and is a clear ‘foil’ for Malcolm.

                  Go, do you see and recognize that Malcolm’s pet theory reduces to the b@nal “you cannot claim conglomerations of disparate elements – with or without any elements being of the nature of mental steps?

                  Malcolm has forever and a day refused to discuss this in an intellectually honest manner.

                2. Anon,

                  No.

                  My understanding is that his position is that a claim, where the only new aspect of the claim is ineligible, is itself ineligible. I think his example shows that well. In my mind, his example of a tv configured to display a new type of programming is a pretty analogous to a computer configured to display a new type of information. In both cases, the new aspect of the claim is ineligible.

                  If you disagree, please explain why.

                3. I have already explained why his pet theory is a joke.

                  Use the archive function and educate yourself. The problem appears to be in your lack of understanding.

                  (His example works only for the b@nal reduction as I have pointed out). It is with such conglomerates claims that the claim as a whole aspect does not rescue. You are aware, are you not, that Malcolm fully Beliebs that Dier was decided wrongly and ‘should not’ be considered good law, right?

                4. Go Arthur: My understanding is that his position is that a claim, where the only new aspect of the claim is ineligible, is itself ineligible. I think his example shows that well.

                  Of course that’s my position and of course my example shows that well.

                  Welcome to the cl 0wn show, Go Arthur. Just step back and ask yourself: are these jackholes really as illiterate as they seem? Or are they just l i ars?

                  It’s tough to tell sometimes. The best guess is a little of both.

                5. “anon”: The problem appears to be in [Go Arthur’s] lack of understanding.

                  It’s always going to come back to this, Go Arthur. Either you don’t understand the “actual law” or you don’t understand the technology.

                  Because these two guys are “right.” How do we know that? Because they told you so! Just “pay attention” and stop asking them questions.

                6. “anon” : It is with such conglomerates claims that the claim as a whole aspect does not rescue.

                  Deep, deep stuff.

                  Really compelling.

  7. 4

    Presumably the PTO will issue its “abstract idea examples” well-before the March 15 submission deadline and, ideally, well before the January 21 forum.

    The website currently says those examples are “coming soon.”

    If the PTO would like to demonstrate a couple ounces of competence in this area, they can begin by reminding everyone that information and data itself are the quintessential examples of ineligible abstractions that can not be protected by patent claims. There is no “creative law making” involved in that statement.

    Next the PTO could state that legal relationships between people (“married” “contractually obliged”) or between people and objects (“owned”) are also quintessentially abstract. There is no “creative law making” there.

    Next the PTO could state that mathematical relationships (e.g., measurements and correlations) and the generalized steps of obtaining those relationships are also abstractions, as are the assigning of abstract “meanings” to both physical objects and other abstractions (e.g., “obtain data about X” or “put X in a spreadsheet table”). There is no “creative law making” there.

    Finally the PTO could recognize as the Supreme Court did in Mayo and Alice that ineligible abstractions such as those listed above are not converted into eligible subject matter merely by salting in prior art technology for its intended purpose (e.g., old data gathering technology or old data processing technology).

    As an alternative, the PTO could continue to bend over backwards for the “stakeholders” who want to prevent people from freely using old information processing technology for its intended purpose. But the PTO should recognize that it’s credibility — and the health of the patent system as a whole — is no longer measured by how many of its “stakeholders” cheer for the opened floodgates.

    Those days are over.

    1. 4.1

      All inventions comprise components that are used for their intended purpose.

      There is nothing special about computers that should prevent inventions from being patented because they are implemented using a computer for computation.

      The Wright Flyer was comprised or wood, cloth, rope and pulleys all being used for their intended purpose. That doesn’t make the Wright Flyer unpatenable subject matter.

      1. 4.1.1

        There is nothing special about computers

        Yes there is: programmable computers were created for the purpose of receiving, storing, processing and transmitting information in lieu of doing it with our brains and/or pencil and paper.

        Given the fact that abstractions such as information and logic are not eligible for patenting, the subject matter eligibility issues raised by claims that recite the old computers and “new” information or “new” logic are direct and obvious to attorneys and lay people alike.

        That simply isn’t true of new flying machines described in objective structural terms.

        I have explained this to you for many years and I am happy to keep doing so. Eventually pretty much everyone will “get it.” We’re getting closer to that goal all the time.

        1. 4.1.1.1

          Wood is used for structural framing.

          Cloth is used to harness the wind.

          Rope is used to pull and apply tension.

          These are all known components used to do what they were intended to do.

          Programming (configuration) to do a new thing and physical arrangement (configuration) to do a new thing are analogous.

          There is nothing special about computers that justifies special treatment.

          1. 4.1.1.1.2

            Les: There is nothing special about computers that justifies special treatment.

            You’re not responding to my comment, Les. You are just repeating your conclusion and doubling down on a deeply flawed argument.

            Programming (configuration) to do a new thing and physical arrangement (configuration) to do a new thing are analogous.

            The problem with this “argument” is that it’s the allegedly “new thing” that is raising the subject matter eligibility concerns, as I’ve already stated. Specifically, it’s the recitation of otherwise ineligible information or logical information processing steps that is invariably “new” in the typical computer-implemented claim.

            Nobody is disputing that the eligibility issue can be abated in most instances (but not all) by reciting a new physical configuration in objective structural terms. For example, if you want to a new flying machine, and you define the new configuration of material in this flying machine in objective structural terms, then you should free to include an additional limitation about performing a math equation while sitting in the pilot’s seat. After all, if I’m in the pilot seat I’m already an infringer so what difference does it make to me if you throw in some ineligible subject matter? None at all. That just gives me a chance to avoid infringement.
            On the other hand, if all that you’re adding to your recitation of the ineligible, information-related “innovation” is old technology, then you’re protecting the ineligible innovation — at least with respect to people (like me) who are already in possession of the old technology.

            This is the Mayo problem. It’s never going to go away. On the contrary.

            1. 4.1.1.1.2.1

              MM: “You’re not responding to my comment, Les. You are just repeating your conclusion and doubling down on a deeply flawed argument.

              Programming (configuration) to do a new thing and physical arrangement (configuration) to do a new thing are analogous.

              The problem with this “argument” is that it’s the allegedly “new thing” that is raising the subject matter eligibility concerns, as I’ve already stated. Specifically, it’s the recitation of otherwise ineligible information or logical information processing steps that is invariably “new” in the typical computer-implemented claim.”

              1. A am responding to your comment. That’s why you bothered to respond to me.

              2. There is no problem with my argument.

              The Wrights claimed wood, rope and cloth (known components) configured in a new particular way to make a machine that files. You accept that that was patentable

              Some inventors claim known computing components configured in new particular ways (e.g., through software) to do make a machine that performs particular tasks. You assert that this should not be allowed because a computer is a known component. This makes no sense, because wood, cloth and rope were known components and you accept that particular configurations of those known components are patent eligible subject matter.

              1. 4.1.1.1.2.1.2

                Some inventors claim known computing components configured in new particular ways

                Again: merely saying that something is configured in a “new particular way” is completely different than describing that configuration in objective structural terms.

                The fact that you can’t understand this (much less admit it) is a serious problem for your position.

                A am responding to your comment. That’s why you bothered to respond to me.

                I’m responding to you so that everyone can see that you are incapable of addressing the issue I’m discussing directly. And that failure is going to come back to bite you (meaning everyone that defends the lowest form of innovation) in a very big way.

                Just wait and see. It’s not like my predictions about where we’re heading haven’t been validated over and over again. The writing is one the wall.

                1. I don’t know what you mean by “objective structural terms”. Software does not involve lumber. But if you mean the claim should outline the algorithm or processing steps, such as receive A, Filter A to generate B, massage B to arrive at C, combine C with D to arrive at E, in a manner analogous to how the components of a mechanical machine might be described in a claim ….A is connect to B at C with D, B rotationally meshes with E etc…. I have no problem with that.

                2. …and likewise – again – you seek to make an issue out of one optional manner of claim format, implying that such is not an option, but a requirement.

                  How long do we readers need I put up with such obvious gamesmanship? How does this advance legal discussions here?

                3. I don’t know what you mean by “objective structural terms”.

                  Which part is the most confusing to you? The word “structural”, the word “objective” or the word “terms”? I’m talking about physical objects whose structure is objectively evident to skilled artisans from a written description of the structure. If it helps, I’ll use the phrase “objective physical structure” to avoid any confusion you might be experiencing.

                  One way to think about it is the opposite of “subjective physical structure.” I might know the structure of a “farfoogle” (a word I just made up to describe a new structure that separates water from cheese) but you don’t. But I could describe my “farfoogle” using objective terms so that, say, ten people who never knew its structure now have a clear idea of what the structure is and how that structure is distinct from those in the prior art.

                  I assume, by the way, that you understand English pretty well. Let me know if that’s an unreasonable assumption.

                  the claim should outline the algorithm or processing steps

                  We’re discussing a claim to a new apparatus (that’s why you brought up your little airplane story, remember?). “Steps” and “algorithms” aren’t objective physical structures, as you surely understand already.

                4. “We’re discussing a claim to a new apparatus (that’s why you brought up your little airplane story, remember?). “Steps” and “algorithms” aren’t objective physical structures, as you surely understand already.”

                  Well then, the objective physical structural differences between the prior art and new machine are at the level of the state of charge (number of electrons) at various points in the circuitry and those would change with various processors, memory or storage component type and particular embodiments. It simply is not practical to describe inventions at that level of detail in the specification, or in the claims.

                  Fortunately, patent law allows for disclosure and claiming at a higher level, as long as one of ordinary skill in the art would understand how to make and use the invention….

                5. “Well then, the objective physical structural differences between the prior art and new machine are at the level of the state of charge (number of electrons) at various points in the circuitry and those would change with various processors, memory or storage component type and particular embodiments.”

                  Just fyi, changes to the number of electrons do not change the “structure” (aka atoms and their arrangement) of the structure. Which is yet another reason why none of this is even an invention at all, at least in device terms. It’s just moving/reciting the position of electrons, not changing the atoms themselves. The movement or positioning of electrons is a method at most.

                  “It simply is not practical to describe inventions at that level of detail in the specification, or in the claims.”

                  First of all that is because you didn’t invent all that. All you “invented” (serious quotation marks there) is an abstraction about all that. Not a generalization about all that, not a genericification of all that. An abstraction about all that. (at least according to your patent lawyer anyway, irl you may have invented one or a few embodiments of that). That’s not to say of course that you couldn’t GO ON to invent all that just from your disclosure, but nobody would bother to do that.

                6. The electron mass is reportedly 9.10938291 × 10-31 kilograms.

                  That clearly means that the presence or absence of an electron is objectively physical. If nothing else, the weight of the machine changes from the prior art programmed state. Moreover, the mass or density at various points in the circuitry changes, as does the center of mass… all of which is objectively physical.

          2. 4.1.1.1.3

            And for the record, Les, I’m ignoring for the moment the fact that there is very little that is “analogous”, from a patent law perspective, between merely stating that something is “configured” to do something allegedly new (one one hand) versus describing the actual new physical configuration which achieves that new result in objective structural terms (on the other).

            The latter typically requires some actual skill in the art, as anyone can see. And computer-implemented innovations, as claimed, pretty much never fit into that latter category.

            1. 4.1.1.1.3.1

              The specification is what is judges as showing whether or not the inventor “had the invention”. If the inventor doesn’t have the invention, don’t grant the patent. But don’t deny protection to any invention simply because a computer is a component of the invention.

              1. 4.1.1.1.3.1.1

                MM don’t deny protection to any invention simply because a computer is a component of the invention.

                Nobody is proposing any such thing.

                Attacking a ridiculous strawman like that is a sign of desperation or a sign that you don’t understand the topic that is being discussed.

                [shrugs]

                1. “neither does typing.”

                  Last I checked typing was authorship. And so was programming. That’s why they call computer “programmers” the author of the program.

    1. 3.1

      Data has been around and useful to people for as long as people were capable of communicating information to one other.

      But data has never been eligible for patenting and it never will be.

        1. 3.1.1.1

          Data shaping and data per se are two VERY different things

          They are different. But I can think of an infinite number of things that are more different and you probably could, too. Putting “very” in all caps adds nothing to the utterly banal point that, in the everday manner of thinking about stuff, different things (whether abstract or not) are, well, “different”.

          In response to this banal point, I’ll add simply that the difference is not one that should matter when considering the eligibility of a patent claim, absent the recitation of a new machine described in objective structural terms or a new physical transformation of matter.

          The US patent system has long recognized this, by the way. A new number is not eligible for patenting. Neither is a method of changing that number into another number by performing math on the number. Does it matter if I call the number a “the weight of a farfoogle”? Nope.

          Has the PTO forgotten this and become hopelessly lost, resulting in great damage to the credibility and functioning of the patent system? You bet it has.

          1. 3.1.1.1.1

            should matter when considering the eligibility of a patent claim, absent the recitation of a new machine described in objective structural terms or a new physical transformation of matter.

            Aside from the fact that you are doing that mindless volume repeat thing about one claim form option, your view here was expressly denied by the Court (9-0, one of two 9-0 takeaways from Bilski).

            And btw, software is not math. You should avoid inviting that confusion (and dust kicking) again.

            1. 3.1.1.1.1.1

              software is not math

              That’s a debatable point. You better get used to that fact. In any event, I didn’t make the assertion so you’re just pounding on a strawman again. I’m not impressed.

              you are doing that mindless volume repeat thing

              Nothing mindless about it. I repeated my point because it’s an important point. Again: get used to it. It’s not going away, ever. On the contrary, you will see my point being made by more and more influential and important people with greater frequency. Bank on it.

              your view here was expressly denied by the Court

              No it wasn’t. And don’t bother looking for the cite because you won’t find it.

              1. 3.1.1.1.1.1.1

                >>That’s a debatable point.

                No it isn’t. You can debate, but it is absurd. An information processing machine with structure is not maths.

                By the way, what is math? Please tell us. Where is math, by the way? Does math have structure? Where did it come from? How is it used?

                Information processing machines are not hard to understand. They are machines that represent and then transform information. They require energy, space, and time. The most important law of physics is the conversation of information. There are theories about how much energy it takes to transform information.

                Information processing is what we hold most dear about ourselves.

                1. An information processing machine with structure is not maths.

                  Indeed. And when you start describing the new, non-obvious structures of those machines in objective structural terms in your patent claims, then this debate will become moot.

                  Good luck.

                2. “An information processing machine with structure is not maths.”

                  Of course not, but practically nobody ever claims one of those. At least not the people we’re discussing at present.

                3. They do claim those 6 as seen by a person of ordinary skill.

                  Or do you image that those websites where software is bid out across the world are all based on abstract meaningless language?

                  Just bizarre that these arguments can be made over and over. They offend human decency.

                4. “They do claim those 6 as seen by a person of ordinary skill.”

                  All they have to do is put it in ordinary language, make their claim worthless, and they’ll get a patent.

                  It’s quite alright with me.

          2. 3.1.1.1.2

            >They are different. But I can think of an infinite number of things >that are more different and you probably could, too.

            Information and information processing are about as similar as electromagnetic waves and televisions are.

  8. 2

    “The most impactful patent decision in 2014 looks to be Alice Corp. ”

    Did your English professor teach you to use the word “impactful?” I bet the work “like” appears in your conversation, too, in, like, every sentence.

    1. 2.2

      I’m not a fan of the word (which is of fairly recent invention) and I avoid using it for that personal reason.

      But it is now a recognized word in the Merriam-Webster dictionary. Is there a different single word that conveys the meaning Dennis is looking for? I couldn’t come up with one quickly. Some hyphenated phrases might be substituted, I suppose.

      1. 2.2.1

        Is there a different single word that conveys the meaning Dennis is looking for?

        “Influential” and “powerful” come to mind and are older words, but I still don’t think the word “impactful” is so bad as to merit mockery.

        1. 2.2.1.1

          I still don’t think the word “impactful” is so bad as to merit mockery.

          Me neither. I just wrinkle my nose a bit.

          But I have encountered numerous people who react with strong negative feelings whenever they hear/read it. I wouldn’t advice using it in a legal brief … yet.

    2. 2.3

      Over focusing on words (on grammar) ignores the maxim that Prof. Crouch laid down here.

      I can give you the quote, if you like…

    3. 2.4

      I believe that this is my first time using the “Impactful” word in writing and I don’t believe that I’ve ever used it in conversation. After I typed the word, I was concerned about whether I had written it correctly so looked-it up in a dictionary. I will also note that Dave Kappos used the term in his 2014 guest post, so I’m just following our dear leader. (link to patentlyo.com).

    4. 2.5

      The word “impactful” has a clear and unambiguous meaning even if you have never heard it before.

      Then there is the word “undoable.”

      It used to be that “undoable” unambiguously meant something that could not be done.

      Then came computer programs, especially word processing programs.

      They came with an “undo” command so you could reverse an operation that you wish you hadn’t performed.

      Nowadays, if something is “undoable” it might mean either:

      1. Something that cannot be done; or
      2. Something that can be undone.

      I have seen examples where it could not be unambiguously resolved by context, only by the age of the writer.

    5. 2.6

      OK, but most of these blog entries are written with little time for review. I’m surprised there are as few errors or poor word choices as there are. And I have no problem with “impactful” (though apparently my spell checker doesn’t like it).

      To me, it’s more important to get the concepts on “paper” than it is to use the best language. One can always rewrite, although blogs tend not to be rewritten.

  9. 1

    I think it is a good thing that the USPTO will have a public forum. One concern though, is that only one viewpoint will be represented. Maybe I’m wrong, but I strongly suspect the crowd will be dominated by those who favor expanding eligibility and/or limiting the impact of Mayo/Alice. Who knows, wish I could be there.

    1. 1.1

      The amount and quality of information presented at any such forum is always going to be limited and compromised by the constraints inherent to such presentations. In addition, as you note, the viewpoints presented are going to be biased in favor of those who can afford to prepare the presentations and travel to Alexandria to present them.

      Submission of feedback by the March 15 deadline is the average “stakeholder’s” best bet to make a difference.

    2. 1.2

      …as for the idea of having a public forum (as a function of “policy” setting law outside of the bounds of Congress, my pal Hal’s email message today provided a great synopsis: “Gong Show”

      1. 1.2.1

        I’m genuinely curious, anon. Is your pal Hal aware that he is your pal? Is he aware that you’re referring to him as your pal here? I’ve never met him, so I can only assume that he is or would be gratified.

        1. 1.2.1.1

          Your curiosity is immaterial to this post and any discussion herein.

          Exactly why are you so curious, and what point are you driving at here?

          Do you receive Hal’s emails? Do you think that I have somehow misrepresented his view?

          And to answer your questions, yes, Hal is aware that he is my pal. I do not know if he is aware that I refer to him as such on this blog as the topic has never come up in conversation while he does know that I do make comments here. I see no bias for you to make ANY assumptions as to how Hal may feel / gratified, mortified, indifferent or any other emotion, not do I see why it is at all pertinent for you to make and express your feelings on the matter, as such as no nexus with the topics here. It appears that all that you hope to do is kick up dust with such a post. That you do so when “anon says” also seems to reflect your oft noted predisposition towards comments on certain posters as opposed to the topics of conversation. May I suggest instead that you expend your energies on the ‘what’ of the topic instead of the ‘who’ of the conversation participants?

Comments are closed.