Ultramercial Shoots for the Moon

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In its newly filed petition for writ of certiorari, Ultramercial asks the U.S. Supreme Court:

Whether computer-implemented or software-based claims, reciting novel or non-routine steps with no conventional counterparts, still cover only patent-ineligible “abstract ideas” as this Court has interpreted 35 U.S.C. § 101?

Ultramercial v. Hulu (Supreme Court 2015) (Ultramercial Petition).

U.S. Patent No. 7,346,545 is directed to a method of distributing copyrighted media content over the internet with a consumer receiving a copyrighted product in exchange for watching an advertisement that pays for the content.  Claim 1 is an eleven-step process that spells out the method for accomplishing the aforementioned goals.

The district court originally assigned to the case found the patent invalid as unduly claiming the abstract idea of “advertising as currency.”  The subsequent appellate history is interesting. Initially, the Federal Circuit reversed – finding that the claimed computer programming elements were sufficient to limit the claims in concrete wasy and to avoid the problem of preemption of an entire field or idea. However, after being twice vacated (Following Bilski and Alice) the Federal Circuit changed its opinion – now finding the claims to be lacking patent eligibility.

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160 thoughts on “Ultramercial Shoots for the Moon”

  1. 10

    The economist in me knows that patents work best when they cover inventions with a high cost of R&D (and often a low cost of manufacture) that are easily reverse-engineered, in order to incentivize invention/R&D, and much of what I’ve read suggests most software patents are not of this category; I’ve also seen evidence that software patents help fledgling startup companies, although it is difficult to tell whether this is because of the patents themselves or because of fear of litigation.

    Of course, it seems that nobody here cares what the law “should” be (as most talks concern interpretation of existing law). Instead I see comments like “we can’t change the law, so instead of arguing of what should be, we should argue about what *is*.” And of course, people talk past each other. People who are against software patents are accused for shilling for Google (I think it would be equally fair to brand people in favor of business-method and expansive software patents shills for Big Blue instead of offering replies of any substance, that way the low quality of comments could drop even lower!).

    1. 10.1

      Many people talk about levels of abstraction, which is a useful concept in software development, but, in my opinion (which may or may not be consistent with what the law *is*; frankly, I don’t care, and maybe I should just stop reading patent law blogs because for people who actually want to talk about what *should* be instead of what *is*, the content isn’t really useful), I don’t think the concept of levels of abstraction is helpful to the patent system in general.

      The problems I see with levels of abstraction is this:

      1) It is possible to file patents without actually doing the inventing/R&D

      2) Levels of abstraction often often leave the reader with an “idea” coupled with generic components such as databases, processors, memory. If you presented anyone with the idea contained within the abstract, his/her implementation would no doubt have these elements. However, you could end up with a near-infinite number of specific implementations that would read on the claims, and would without a doubt use the aforementioned generic components.

      Regarding the actual law, it seems to me that the problem with abstractions is the same problem of Morse’s claim 8: they are too broad and cover too much ground, because non-obvious, novel solutions that accomplish the idea set forth in the abstract would infringe.

      1. 10.1.1

        “However, you could end up with a near-infinite number of specific implementations that would read on the claims, and would without a doubt use the aforementioned generic components”.

        Yes, when you take law and practice evolved painstakingly for a world of things, and apply them to a world of ideas, chaos and injustice result.

        Next thing you know, the Supreme Court feels the need to say the words “patent troll” in an otherwise unrelated opinion to remind everyone that there remains a real problem that needs to be solved.

        The court tied trolling to lawsuit abuse, not business model. The problem is not with NPE’s. The problem is with litigation abusers of software/method patents, from whichever quarter they may hail, and the mechanism is poor current law on methods and software.

        Congress tends to mess with just about everything else but not the guts of the problem. That’s what congress does. So here we are.

        1. 10.1.1.1

          Perhaps you should realize that statutory law is not the domain of the Courts and direct your suggestions to your congressional representatives…

          1. 10.1.1.1.1

            Perhaps you should realize that the courts are a co-equal branch of government with explicit legitimacy to determine what the laws mean in actual practice. The word ‘process’ in section 101 is wide-open for such interpretation; reasonable people disagree on its meaning and application, and further clarification from Congress
            is absent.

            And of course, you should realize that sparring with unknown cranks is hardly the sum total of me or my company’s efforts toward patent reform. We do in fact present our concerns to the courts and congress at chosen spots. See for example link to 1drv.ms. We were also amici on the Alice case.

            Of course, simple belief in your own superiority is not a cause worth advocating, as well-suited as patent blogs may be for the purpose….

            I didn’t choose to become invested in this problem in our society, but that’s how change happens. It will be mitigated eventually because its unsustainable without reform. You can keep pretending it’s made-up, trumped up, whatever….but I KNOW better.

            1. 10.1.1.1.1.1

              You don’t get to manufacture your own “ambiguity” in order to rewrite the law.

              Further, you need to understand the clear limitation on judge made law when it comes to statutory law. Maybe you and Ned can watch the movie The Paper Chase together and note the critical passage at the hour and six minute mark.

              Lastly, you quite misunderstand the “belief in my own superiority” – Eppur si mouve. My superiority is just not rooted in a belief – it is rooted in fully understanding the foundations of law.

                1. …

                  Just not in the way that you think, my jester friend.

                  But please, continue to wage battles in terrain of which you are clueless.

        2. 10.1.1.2

          I don’t think litigation abuse is the problem here. Lawyers are supposed to do the best for their clients and publically traded companies are supposed to do the best for their shareholders within our system of laws. Litigation is the tool to accomplish this. When abuse occurs, the courts have other tools to sanction the abusers.

      2. 10.1.2

        2) Levels of abstraction often often leave the reader with an “idea” coupled with generic components such as databases, processors, memory.

        Regarding the actual law, it seems to me that the problem with abstractions is the same problem of Morse’s claim 8: they are too broad and cover too much ground, because non-obvious, novel solutions that accomplish the idea set forth in the abstract would infringe.

        This This and This! Billy is correct.

        1. 10.1.2.1

          Except that he is not (he disdains actually knowing the terrain of law) – knowing what happened in 1952 is critical. Wanting to sleep at a Holiday Inn and only have an incomplete “street view” is decidedly poor judgement. While there is no doubt as to any “ease” in joining a mob rule mentality, doing so goes against the type of critical reasoning that is required here.

          1. 10.1.2.1.1

            Haha it’s funny because you’re alluding to Hotel Security and State Street!

            Also, you seem to be arguing that because software/business methods are patent eligible, that my interpretation is wrong. The way I see it, there are two separate and distinct issues here (breadth and patent eligibility).

            Is there any case law that suggests my interpretation is wrong wrt breadth? If so, please provide it. I would be willing to learn.

            1. 10.1.2.1.1.1

              I am alluding to no such thing. 1952 was the year. The Patent Act was the thing.

              Maybe if you did not disdain what the law IS, you would understand that what you think the law should be is just pure fantasy.

    2. 10.2

      If you don’t like what the law is, there are proper ways of changing the law.

      To change statutory law through the judicial branch is not one of them.

      The Rule of Law is a critical concept to these discussions billy – it appears that you want to wade into a fight on terrain that you just don’t understand. Not so good (for anyone, but especially for you – see Sun Tzu).

      (the O’Malley article was a link provide by Ned – which he violates what O’Malley advocates is just ironic – but the actual item is behind a paywall.

      2. 10.2.2

        I know there are proper ways.

        Of course, it’s not completely honest to imply this (site as a whole) isn’t the platform when any issue of reform/quality is also an issue of what the law should be (and/or how to change the examination/patent process).

        2. 10.2.2.2

          No one is implying (or even directly saying) that this site is NOT a platform for discussions of law.

          Of course, it helps if the discussions are actually about the law and not about the massive propaganda that the likes of Malcolm and Ned peddle.

          You do know that their drive-by monologues that refuse to take into account basic facts and legal truths is mere propaganda, right?

    3. 10.3

      “although it is difficult to tell whether this is because of the patents themselves or because of fear of litigation.”

      What do you think a patent is? All a patent is, is a license to sue others for infringing activities. The instillation of a fear of litigation in others is the only real economic reason to apply for a patent.

      1. 10.3.1

        Les: The instillation of a fear of litigation in others is the only real economic reason to apply for a patent.

        That’s certainly true when you haven’t inventing anything patent-worthy, or when you don’t have a useful product to sell because, e.g., you lack the skill to make and market the product successfully.

        I think that was the point of the ‘fear of litigation’ comment.

        1. 10.3.1.1

          You do realize the canard of what you are saying and what a patent actually is, right Malcolm?

          Did you forget (again) what the concept of a negative right means? Did you forget that there is NO “must make” requirement, and that for the vast number of patents that are improvement patents that one cannot require a “must make” without potentially infringing someone else’s patent?

          These are basics that you seem only to eager to ig nore in your dissembling haste.

        2. 10.3.1.2

          “That’s certainly true when you haven’t inventing anything patent-worthy, or when you don’t have a useful product to sell because, e.g., you lack the skill to make and market the product successfully.”

          It is equally true when you have and when you do.

          A patent does not give you permission to make and sell something.

          It only gives you permission to stop others from making and selling something….in case you didn’t know that.

      2. 10.3.2

        Correct, but at the same time companies apply for many patents that are narrow to the point of being useless in order to build a portfolio, and turn it into a numbers game (of course, the implication may be that there is something useful for the purposes you mentioned *somewhere* among them).

        My point was more along those lines; sometimes patents may be worthless and easily designed around, but it may be important to tell investors that a company has a patent portfolio/x number of pending patents. Particularly in cases where the generic technology may be obvious, and the real success of the company depends on having a first mover advantage/getting an initial round of funding.

        1. 10.3.2.1

          billy,

          You are now getting basic business concepts all muddled. First mover and initial funding cycles are separate and distinct items.

          1. 10.3.2.1.1

            I know they are. However, initial funding can provide a first mover advantage in many situations.

  4. 7

    On a sidenote, the office is doing training next week on “Functional Software Claims” which should prove entertaining no matter where you sit.

  5. 6

    Someone said “this is too much of a business method”; I’m not sure for what purpose, but I presume he meant too much to be a good test of the question of the patentability of software. But as far as I’m aware, business methods are still in a similar state of limbo–theoretically patentable, in some poorly defined circumstances, but not as a practical matter. In view of the Supreme Court’s decisions, things that pass the machine-or-transformation test probably ought to be patentable, but I doubt that the test is really analytically predictive.

    For example, assume for the sake of argument that I discover an observable, measurable, statistical fact about human psychology that enables me to help them lose weight. It doesn’t work in every case, but I can show that my method is a statistically significant contributor to weight loss. I claim a method that involves using a computer to ask them questions and, based on their responses, play music and show them images, resulting in substantial improvement in weight loss results, say 5 sigma in 85% of people. How would you apply the machine-or-transformation test? My method is having a real-world physical effect. Is it transforming people into lighter people?

    Now, if I’d found a drug that worked this well, clearly, it would be patentable. Should the result be any different if, instead introducing a drug, I only have to play them certain sounds, or show them certain visual images?

    1. 6.1

      I said the claims were too much of a business method. You are correct in that I meant to be a test for “software” (more like data processing) patents.

      Note that I’m not sure what people mean by “software” patents. For instance, one can claim a controller for adjusting a car’s speed. The adjustment is made by “software” in the controller. Is this a “software” patent?

      I’m looking for clarification on what I would classify “data processing” patents, where data is manipulated by a machine. For instance, encryption manipulates unencrypted data to create encrypted data. Encryption is critical to privacy on the internet and is becoming more critical each day. Yet, Alice appears to make inventions in this area unpatentable, but these types of claims have not been directly addressed by the Supreme Court.

      I don’t think much remains of the machine-or-transformation test, particularly if the “machine” is a general purpose computer.

      1. 6.1.1

        “Note that I’m sure what people mean by ‘software’ patents….”

        Software patents are patents. That read on software.

        1. 6.1.1.1

          “That read on software…”

          Go, but the likes of Kappos always give example of improved machines.

          1. 6.1.1.1.1

            Ned, why do you keep at this garbage thinking? You act as if software exists in the spirit world and we are trying to claim a part of your soul.

            Seriously. Software is at a component of the computer. Just like putting a gear box into a machine. Software is equivalent to a special purpose computer.

            Why do you insist on trying to push information processing into your iron age concepts? Patent law is supposed to be about accommodating new technologies.

            Frankly, Ned, you are a shameful person. You shame our profession.

      2. 6.1.2

        You know Patent Bob, I have asked this question of Dennis, and of all the pro-software types lurking this forum and have yet to receive a response, let alone a definition.

        Kappos always argued that improved machines were what he was talking about – i.e. the improved surgical methods or tool operated by improved software.

        Night Writer has always defined what he is talking about in terms of improved machines as well.

        But we all know that what they really want, what their agenda really includes, is patenting business method software. Last year Dennis published a survey of applications that had been delayed after Alice. IBM had the most – and lo and behold they were all business method software type of patent applications. Thus we see the agenda of Kappos on display where he uses bait and switch. He puts out there as questionable subject matter something for which there is no question in order for us to agree that we should allow the patenting of software where his real agenda is to patent business methods and their ilk.

        Of course people who do this intentionally to mislead are little better than liars, cheaters and stealers. You be the judge of whether Kappos said the things intentionally in order to mislead.

        1. 6.1.2.1

          I think the right way to think about this is information processing. A machine that is processing information. The software is a component that makes the general purpose computer equivalent to a special purpose computer.

          You know, if you would progress in your education in these matters, you’d see that what is going on is that a machine that takes space, time, and energy is processing information. That processing information is what we value most about ourselves.

          Sheesh. I have to say Ned it befuddles me when I think that someone is being intellectual honest and doesn’t get this. It is so simple. A machine that processes information. The amount of smoke that is throw at this is incredible.

          Not sure what is so complicated about this. I don’t see it.

          1. 6.1.2.1.1

            I will say that a big part of the confusion from the SCOTUS seems to come from their belief in a spirit world where processing occurs magically. Or a mystic world where math exists outside of ourselves.

            Stevens and the like believe some weird stuff, (just write down the functions you want and give it to a boy to do), Posner (they just naturally invent. Give them a pizza and they are fine), Gingsburg (in the real world –as opposed from the computer world), etc.

            Statements that evince the ignorance of the SCOTUS and I didn’t even get into their belief that any equation is a natural law.

            1. 6.1.2.1.1.1

              “I will say that a big part of the confusion from the SCOTUS seems to come from their belief in a spirit world where processing occurs magically.”

              That’s only because that’s how it is claimed brosefus. If people actually included steps of electrons going to point a, being stored for time t, passing through logic gates lmnop and finally ending up at point z then perhaps the supremes would take a less “spiritual” belief.

              1. 6.1.2.1.1.1.1

                Really? The claims are supposed to be BRI at your step. I am sure that “reasonable” doesn’t include the spirit world.

                1. …

                  At my step? We’re talking about at the Supreme step bro.

                  Not to mention that this has nothing to do with the the BRI. If you explicitly write the claim such that it does not involve the thing I mentioned above, and instead recites “determine whether data A is greater than data B” then what you’re calling “spirituality” enters the discussion.

            2. 6.1.2.1.1.2

              I will say that a big part of the confusion from the SCOTUS seems to come from their belief in a spirit world where processing occurs magically. Or a mystic world where math exists outside of ourselves.

              hahaha on the one hand Night wants you to assume that every function is enabled just by mentioning the result you want (i.e. you don’t need to teach them the algorithm) and on the other hand he wants you to be upset that the court uses the same assumption.

              Is the coding a patentable act or not? If so, it needs a teaching. If not, it shouldn’t issue regardless of what is conveyed.

              what is going on is that a machine that takes space, time, and energy is processing information.

              Doing work is not sufficient to constitute invention.

              1. 6.1.2.1.1.2.1

                Could you have put together more red herrings and specious arguments? Probably not. I think you did well for yourself given you low skill level.

            3. 6.1.2.1.1.3

              Calling out the SCOTUS for not having a ‘technical background’ and implying they can’t understand patent law is such a weird move.

              You do not have to have a technical background to understand patent LAW. I’ll repeat, you do not have to have a technical background to understand patent law.

              It is as if people who make this argument think patent law should be this private playground where engineers and scientists make policy and laws that impact the entire country. That has never happened and will never happen.

              Patent law impacts the entire country and it is a GOOD thing that a court with a broad perspective has final jurisdiction over patent law.

              I mean, imagine a world where that thought is carried to its logical conclusion. Only accountants can rule on tax law. Only criminals can rule on criminal law. Only native americans can rule on Indian law. Only environmentalists can rule on EPA legislation. It would be absurd.

              Of course I’ll admit that on certain questions of fact in patent law the SCOTUS is unqualified. Well, fortunately, SCOTUS never? rules on issues of fact in patent law!

              Before the haters pipe up, I have a technical degree and have worked in industry.

              1. 6.1.2.1.1.3.1

                How strange you lot are. Go, saying that someone’s opinion is based on fallacious assumptions is the core of my argument against the SCOTUS. Stevens believes in a spirit world where processing occurs. Stevens believes that math is not something that our brains has manufactured. Stevens education is from about 1920.

                Go, your argument is essentially, gee these people are completely ignorant but we shouldn’t push them to either give up power or educate themselves.

                But, Go, the bigger picture is the SCOTUS is an activist court and they are the servants of big international corps. That is reality. I don’t think they care or even have the slightest understanding of tech. I think they just look at it as patents are bad now ’cause Google says so. Bit trolls roaming the plains of the US hurting the big international corps. SCOTUS need to limit patents.

                I don’t think they care a whit about the science or law. They see themselves as legislators. Just read the transcript of Alice or any of the recent patent cases. Reads like a body of kings/queens deciding what law to enact.

          2. 6.1.2.1.2

            “Is” a machine or “claims” a machine, Night.

            The claim is a method claim. link to cafc.uscourts.gov

            I see nine steps:

            1. receiving IP protected media;
            2. selecting sponsor message;
            3. providing media for sale “at” a website;
            4. restricting access;
            5. offering access on condition of viewing sponsor message;
            6. receiving consumer request for access;
            7. display sponsored message
            8. if not interactive message, allowing consumer access to the media;
            9. if the message is interactive, presenting at least one query and then allowing the consumer access to the media.

            What machine are you talking about and how is that machine improved?

            1. 6.1.2.1.2.1

              How would one skilled in the art construe that claim Ned?

              I am sure that I (an ex software developer) would construe the claim to be performed by a computer. I’d include a special purpose chip in the scope as well as multiple computers performing different steps as well as a general purpose computer improved by the software component.

              1. 6.1.2.1.2.1.1

                Night, I am sure that I (an ex-software developer) would construe the claim to be performed by computer.

                Of course, and you would be right. This is what I’ve been saying all along. A computer is being used. The new use of an old machine can be claimed as a process. But you argued elsewhere in this thread that a new machine was being claimed because it was programmed and became a special purpose computer. In another post you argued that software is structure and that a programmed computer is structurally different than a non-programmed computer.
                This might be true, but only if you control the definition of “structure.” Most people use the ordinary meaning of that term and not the special meaning that you give it. Therefore you’re not talking about the same things.

                Under the law, structure is a physical thing. But you would like to define structure as being logical, mathematical concepts that are little more than abstract ideas. A program calculates an equation. It has numbers in, and numbers out. What it means is abstract. The numbers could be price. The numbers could be quality. The numbers could represent risk.

                I have repeatedly asked you to describe the structure of a “1.” You don’t answer the question except to get mad at me. Yet you repeatedly claim that software has structure when software is nothing but ones and zeros.

                Circling back to the Ultramercial claim, you now admit that a computer is being used. But how does that make the claim patentable subject matter? We have in the Ultramercial claim something essentially unpatentable in a business method. Yet you argue that if you conduct that business method with a machine, it somehow magically is transformed into something patentable. Why? If that was the case, Benson would have been decided differently.

                1. …

                  >> Under the law, structure is a physical thing.

                  Ned, again, garbage thinking. What in the world do you think? That these information processing machines are processing information without structure? The machines are doing what your brain does. What animal brains do. They have structure. Scientifically it is not possible for them to perform the information processing without structure–you know that.

                  That is reality and the big picture. You want to engage in gamesmanship and playing to the ignorance of the mob.

                  Information processing machines take space, time, and energy to transform information. That is physics. That is reality.

                  Your behavior Ned is shames us all just like Lemley’s does.

                2. …

                  NW: The machines are doing what your brain does.

                  And stuff “our brains do” has never been eligible subject matter, anywhere on earth (notwithstanding Prometheus’ failed attempt to change that fact).

                  Tossing into the claim an old “configurable machine” that is a well-known proxy for human brain activity shouldn’t change the outcome (as the Supreme Court already told you in Alice), just as the recitation of a ball-point pen or a calculator or an abacus or a slide rule changes nothing.

                  Progress in computing is promoted by progress in better computing machines. And new machines — like all compositions — need to be distinguished structurally from machines in the prior art or the foundation of the entire patent system erodes and patenting will become a fishing expedition and a playground for grifters. “New functionalities” are not eligible subject matter. There’s a reason for that.

                3. …

                  I think you’re confusing the term “abstract” with “non-material.” I’ll concede that that is one of the several meanings of the term “abstract,” but, I submit, not the one the court was using when it articulated its “abstract idea” standard…since, by that definition, “abstract” would be “mere surplusage.”

                  Trying to unsnarl what the Court meant by an “abstract” idea is, of course, a fools errand. The truth is, not even they knew. At best, they were trying to articulate some inchoate understanding that they couldn’t just say “ideas aren’t patentable”; they had to use at least one word that allowed room for the obvious truth that some ideas are patentable and others are not. Even so, it might be fruitful if we can come up with some rule that might allow us to distinguish between these ideas, and it makes sense for us to start with other meanings of the word “abstract.”

                  I submit that the one that is most promising is “difficult to understand; abstruse.” I am consciously passing over “not applied or practical; theoretical,” on the grounds that it merely begs the question.

                4. …

                  MM> And stuff “our brains do” has never been eligible subject matter, anywhere on earth (notwithstanding Prometheus’ failed attempt to change that fact).

                  MM your entire post is just filled with nonsense. For the above, what? You think information processing —which is what our brains do–is not eligible for patents?

                  Prometheus certainly does not hold that. But, it is good for you to put your cards on the table finally. You actually think that all information processing is ineligible. Incredible.

                5. …

                  Proxy for human brain is a deliberate falsehood.

                  Machines are not people.

                  Anthropomorphication

          3. 6.1.2.1.3

            processing information is what we value most about ourselves.

            And yet no patent system on earth has ever embraced the idea of patenting information or patenting the processing of information per se.

            On the contrary.

            Have you ever put down your pipe and asked yourself: “Why?”

            After all, the only reason patents covering software ever got through the gates is because quite recently some short-sighted, eager-to-impress jurists reached deep into their behinds and pulled out some baloney about the “essence of electronic structure”.

            I know it’s a tough question for you. But give it some thought.

            1. 6.1.2.1.3.1

              Yes I have put down my pipe and asked myself if it makes sense to permit patenting of information processing methods and apparatuses.

              You say that no patent system has “embraced” patenting the “processing of information per se.” Of course the US has been patenting information processing machines since the punch card machines of the late 1890’s. So, without your “embrace” what you say is incorrect.

              What I think is that these are machines. That how they process information is very important to the size and how much energy they use. That they have structure. That software structures the general purpose computer into a special purpose computer. That each of the machines is equivalent to a special purpose computer. All of these are scientific facts that are irrefutable.

              That is reality. You and your lot can continue to fabricate nonsense and feed it to liberal arts judges to limit patentability as judicial activist. But, you can’t change science. You can’t change the purpose of the patent system.

              1. 6.1.2.1.3.1.1

                NW: You say that no patent system has “embraced” patenting the “processing of information per se.” Of course the US has been patenting information processing machines since the punch card machines of the late 1890’s.

                Learn to read English.

                I don’t have any problem whatsoever with the patenting of new information processing machines, provided the new machines are distinguished in structural terms from machines in the prior art (and provided they are non-obvious and fully enabled).

                Once again: the patenting of information processing per se has always been out of the reach of all patent systems, including our own. Software got in through the back door because some short-sighted judges wanted it to happen. One of those judges left the Federal Circuit in disgrace. Do you remember the technology that was involved? I do.

                It’s pretty straightforward reasoning that if an existing machine can carry out logical information processing steps — because it was designed to do that — then describing the functions being carried out by the machine is the patenting of logic. Grasping this basic fact may be above your pay grade but that’s not my problem.

                1. …

                  Software has structure and a machine with a software component is structural different than a machine without the software. That is scientific fact.

                  > information processing per se
                  The method in Ultramercial is performed by a machine. And, 1) information processing is new. The first computers that enabled real information processing were not invented much before the 1952 Patent Act. So, I think it is accurate to say that what has happened is a new technology emerged (which also is the name of the age we live in) and that new technology has not been understood by the judicial system.

                  But, yes, information processing per se should be patent eligible every bit as a method of making a new alloy is patent eligible. We are talking about processing represented information that takes time, energy, and space and the methods of processing the information are inventions.

                  Also, Deener makes clear that methods of processing grain are patent eligible just as method of information processing should be without controversy. And methods of machines like card punch machines are nothing but early versions of information per se being eligible.

                  Reality. You may not like it, but information processing is our future. You really don’t have any arguments that don’t amount to, “it is a witch.”

                2. …

                  NW: Software has structure and a machine with a software component is structural different than a machine without the software. That is scientific fact.

                  Then recite the novel, non-obvious structure in the claims.

                  What’s the problem? Oh right: “it’s too small.”

                  Guess what? People claim really really tiny stuff all the time.

                  Or maybe you think “the claim will be too narrow because entire industries can’t be held hostage if the structure is recited”?

                  Guess what: that’s your problem. Maybe you’re not entitled to be a multimillionaire because someone else actually wrote working software and figured out how to market it. Welcome to earth.

                3. …

                  Again the canard of structure in the claim as if that optional claim format was the only claim format allowed by the law…

          4. 6.1.2.1.4

            “The software is a component that makes the general purpose computer equivalent to a special purpose computer”

            Tautological nonsense. This means the machine is NEVER a general purpose computer because it always runs software.

            A computer is a machine designed and built to execute software instructions. Changing the instructions does not change the machine.

            If the machine does something other than execute software instructions, as a system component itself, the eligibility discussion should start there.

            1. 6.1.2.1.4.1

              >Tautological nonsense. This means the machine is NEVER a >general purpose computer because it always runs software.

              More witch talk. Such sloppy uneducated thinking is not worthy of a response. Go get off burning a witch.

        2. 6.1.2.2

          And seriously Ned, Ultramercial, a machine that is interacting with real people and performing real useful functions is abstract?? How?

          101 is the wrong tool for this. It is a machine —the very heart of patent law—that people are building and selling and using. The machine itself can’t possible be abstract and still be in use. The only thing that could be abstract are the claims. But, then that is a ladders of abstraction argument and scope of enablement argument.

          You see the lot of you are off your rockers…

          1. 6.1.2.2.1

            Notice how the gang of judicial activist never address these arguments…

          2. 6.1.2.2.2

            So people download machines via the Internet?

            Interesting.

            When I download a 3D design to make my machine locally, are the print files the machine, or is the object that comes out of my 3D printer the machine?

            1. 6.1.2.2.2.1

              People can download a component of a machine via the Internet.

              What do you think the Internet is? What exactly do you think processes information? It takes space, time, and energy to transform information. We are building machines to do this.

              Yes, they are a bit different than iron age machines.

              But you keep piling that wood on to try and burn a witch.

              1. 6.1.2.2.2.1.1

                switches, routers, wires, processors, power supplies, memory modules, & interconnects are all machines, and they make the “Internet” happen, and nobody is arguing anywhere that they should not be patent eligible.

                what a riot- someone who wails about scientific illiteracy who cant answer a simple question: When I download a 3D design to make my machine locally, are the print files the machine, or is the object that comes out of my 3D printer the machine?

                Are you saying the print files are a component of the machine that comes out of the printer? Or that the machine used to download the files is part of the machine that comes out of the printer?

                If this is so simple, why not engage the question?

            1. 6.1.2.2.3.1

              >>/facepalm

              So, 6 what part of that do you have a problem with? Facepalm is not the most articulate of posts.

              I do wish you lot would grow up. I speak scientific truths that are irrefutable. You can continue on with your witch burning talk if you like.

        4. 6.1.2.4

          Pure B$ Ned.

          There are four fingers pointing back at you.

          Your post here is beyond desp1c able.

          1. 6.1.2.4.1

            anon, those who willfully, maliciously and perversely lie, cheat and steal are the one’s that need to be reprimanded.

            Bait and switch, anon. I’ve seen disingenuous arguments galore from those whose real agenda lies in patenting business methods. Once someone lies to you, anything and everything they say to you in the future must be considered to be a lie as well. These people are little better that knife wielding highwaymen, but they dress in fancy suits, drive nice cars and get appointed to high positions.

            Luke 16:11.

            1. 6.1.2.4.1.1

              As I said Ned – four fingers point at you and your 1ies against business methods and software patents.

              Dante has a special ring for you.

                1. …

                  Ned’s merry Go Round path is one that is well worn.

                  That he attempts a “high horse” accusation when he is the one 1ying should offend everyone.

            2. 6.1.2.4.1.2

              You must be kidding Ned. If ever there was a judicial activist it was Mark Lemley your spiritual leader.

        5. 6.1.2.5

          Ned –

          The purpose of software is to improve a machine., to get the machine to do something it didn’t do before or to do something (in the abstract) that it did do before better (from some point of view).

          The reason software is claimed as a method and a CRM thereof, rather than as an improved machine is because those that make and sell software are not always the same people that make and sell the end machine and it is better to have a tool to defend yourself against your competitors directly rather than suing your potential customers (the machine manufacturers).

          Why is that so terrible?

          1. 6.1.2.5.1

            Les, a computer executing software IS doing what it did before. Where do you get the idea that a generic computer calculating an equation, just for example can drive a car, just for example?

            When you say “do,” you have to qualify what you mean by that. Are you talking about a computer integrated into a process that molds rubber? Are you talking about a computer integrated into a larger machine that drives a car? Or are you simply talking about a computer that calculates numbers from numbers?

            In all these cases, the computer is not changed. In the case of the process however the process is improved. In the case of the car, the car is improved. But the latter case, there is no larger machine or larger process that is improved and the computer is doing exactly what it is supposed to do and what has always done – calculate numbers from numbers.

            1. 6.1.2.5.1.1

              ” But the latter case, there is no larger machine or larger process that is improved and the computer is doing exactly what it is supposed to do and what has always done – calculate numbers from numbers.”

              “the computer is doing exactly what it is supposed to do and what has always done – calculate numbers from numbers.”

              That is impermissible “gist” type reasoning Ned. You are considering the invention only in the ABSTRACT. There is something new going on. A machine is evaluating sensor information and generating set-points on the fly to avoid crushing kittens and small children. The fact that brakes are applied and wheels are turned as a result is merely insignificant post solution activity.

              The machine is improved because it couldn’t calculate those particular set-points before. Now it can.

              1. 6.1.2.5.1.1.1

                “You are considering the invention only in the ABSTRACT.”

                That’s because it will be recited in the claims in the abstract.

                “There is something new going on.”

                Allegedly. We just never hear about it in the claims.

                “The machine is improved because it couldn’t calculate those particular set-points before.”

                It couldn’t? You sure bro? Could not? Or was it just never applied to doing that?

                1. …

                  6, your “applied to doing that” is called invention. It is what the patent system was created to protect.

                  Like Malcolm, you are invited to abstain from the things that you would deny protection to.

                2. …

                  Could not. Without software, ya turn it on, all it does is fetch NOPs. It cant do anything else.

                  When you were born, you couldn’t type. Now, it seems you can, at least after a fashion.

            2. 6.1.2.5.1.2

              “a computer executing software IS doing what it did before. ”

              Ned, this is the SAME logic as my big box of electrons, protons, and neutrons. My big box does with these elementary particles what those particles have been doing since the dawn of time. With your logic, nothing at all is patent eligible.

              The legal argument that exposes your fallacy is inherency. Your statement here requires that all future improvements to the machine by way of the component of software (a manufacture in its own right), must be (not just considered to be, but must actually be) “already in there.” You merely retread the House/Morse fallacy again and again and again in your internet style shout down drive-by monologue.

    2. 6.2

      ?

      Claim 1 A method comprising:

      a) testing subject for being a human being; and
      b) if the subject is a human being, playing them music; whereby subject is caused to lose weight.

      Prior art or ineligible law of nature: human beings who listen to music lose weight.

      Prior art: people who respond to questions are human.

      Hmm….

      So, the PTO grants you a patent and you sue anybody who plays music for other human beings as infringers because of your discovery that music causes people to lose weight.

      Seems reasonable to me.

      1. 6.2.1

        I’m not sure if my failure was to adequately describe or to precisely the claim… Regardless, what I am hypothesizing is the discovery that by choosing specific music and/or images, based on answers to certain questions, a substantial change in the ability to lose weight can be effected.

    3. 6.3

      if I’d found a drug that worked this well, clearly, it would be patentable.

      And you’d be forced to claim the drug in structural terms to distinguish it from the drugs in the prior art.

      My method is having a real-world physical effect

      Your method exists only in your imagination. Suffice it to say that if you could prove that “playing certain sounds” or “showing certain images” to certain people would decrease their weight in some unexpected way, and if you could show that your method was not inherently anticipated, you might be onto something.

      Of course, a method of inducing people to “buy stuff” that fails to describe a new machine or a new drug in structural terms and results in only a mental change — the purpose of a fair amount of the worst information processing junk out there — is a rather different “art” than medicine, isn’t it?

      1. 6.3.1

        …and yet again the canard that is Malcolm making an issue of one optional claim form – dissembling as if that one optional form is somehow the only legitimate legal claim form…

        Nine years and running of this type of deception.

      2. 6.3.2

        Hey, MM, I discovered, quite by accident, that if one ties 99 red balloons to a baby that the baby floats. Can I get a patent? Can I sue the author of the song 99 Red Balloons for inducing patent infringement?

        My preferred claim is,

        1. Baby flotation device comprising 99 red balloons.

        1. 6.3.2.1

          Can I sue the author of the song 99 Red Balloons for inducing patent infringement?

          Is that what song is about??

          Germans is weird.

          1. 6.3.2.1.1

            99 Red Balloons floating over the Berlin wall. What else could it float across but a baby?

          2. 6.3.2.1.2

            I always thought it was about the tragic results from not keeping packaged items together.

        2. 6.3.2.2

          Don’t be silly Ned. 99 luftballons is prior art.

          The more interesting IP question is, Is the reference to “Captain
          Kirk” fair use or copyright infringement.

          :-p

      3. 6.3.3

        Again, to clarify, my hypothetical posits that people are losing weight for the usual reasons–their bodies are burning more calories than they are processing. The benefit of the sounds and images is an effect on the minds of the listeners/viewers, which is making them more able to carry out their desired programs of dieting and exercise. My guess is that the most relevant prior art would be hypnotism, though I submit that my method, if it passes 101 muster, would be patentable over it, as I am unaware of any enabling disclosure of hypnotism.

  6. 5

    Ultramercial’s claims merely implement sponsored access to media on a computer through the internet. Nothing significant. Cert will be denied.

    2. 5.2

      The Wright’s claims merely implement a control surface on a wing of a flying machine through ropes and pulleys. Nothing significant.

      Everything can be dismissed as merely something.

  7. 4

    The claim looks like pseudo-code for a short node.js web server built with the Express framework. It could probably be coded and debugged in 2-4 days.

    If a method is nothing more than pseudo-code, isn’t it claiming every possible sequence of software instructions implementing that pseudo-code?

    There are no data structure or device limitations whatsoever in the claim.

    In addition, in the first step I am not sure which word is the modificand of “wherein”. If I had been the examiner of the application, I would not have considered granting the application without first making the applicant rewrite “step one” for more clarity.

    1. 4.1

      Every patent claims every way of doing exactly what it claims.

      That’s what patents are.

      The patent for the Wright Flyer claimed every plane with a way to warp a part of the wing out of the plane of the wing.

      A claim for a method for making a chemical that has as a step: stir the mixture until it thickens claims every way of stirring, from wooden spoon to mix-master to blender to using your finger to those magic magnetically coupled thingies…

      So, yes. There is no point to claiming a method so specifically that someone could “coded and debugged in 2-4 days” an alternative not covered by the claim. Therefore claims are intended to cover all embodiments of what their words encompass.

    2. 4.2

      This isn’t a great claim to test the Alice rules. The claim is too much a business method and not enough data processing/hardware. I’d rather see something like encryption (taking unencrypted data and encrypting the data — basically “data processing”), modulation (again, taking data and applying a mathematical algorithm to it), digital predistortion for an amplifier, any number of other scientific areas where data is processed in new and novel ways, but the output — at least at one level — is “merely” changed data.

    3. 4.3

      device limitations

      You’ll never see a novel structural limitation in a software claim because then it would be hardware.

      And the changes in hardware are soooooo small that it’s impractical to claim them. Or so we’ve been told by people who wish, more than anything else, to claim new configurations of configurable machines in functional terms.

      2. 4.3.2

        You use that word a lot. I do not thinitmeans what you thinitmeans.

        See for example, definitions 4c and 5:

        “4
        c : coherent form or organization
        5
        : the aggregate of elements of an entity in their relationships to each other ”

        link to merriam-webster.com

  8. 3

    This is the wrong question. The more appropriate and strategically better question should be as follows:

    Did the CAFC err by ignoring the Supreme Courts reconciliation of 101 precedent in Prometheus, when the Court reasoned a process “integrated” to the point it no longer preempts the concept it applies, satisfies the statute at least at 101?

    Since this is a question regarding the Court’s own Integration Analysis it stands a reasonable chance of being accepted, so that the Court could clarify its intent here.

    Ultramercial stands a better chance of it’s claim being upheld as patent eligible subject matter under Integration Analysis than any other argument. After all no one has ever been able to defeat the “Integration Analysis” argument in the history of this blog.

  9. 2

    Whether computer-implemented or software-based claims, reciting novel or non-routine steps with no conventional counterparts, still cover only patent-ineligible “abstract ideas” as this Court has interpreted 35 U.S.C. § 101?

    The answer is of course “yes, they can be.” The fact that they even ask the question just shows how bad they are at understanding things.

    Plus, just from a pragmatic standpoint, they kept holding your case up until they finally got the abstract idea result they wanted, what could possibly make Ultramercial think they will prevail?

    1. 2.1

      You know what would be great? If they took the case and then upheld it 9-0 as that is what it would be, just to drive their point home.

    2. 2.2

      You serious? The PTO is in disarray re: 101, and district courts are split partially on this issue and how to apply the horribly written and (apparently intentionally) ill-defined “test” in Alice. What is it with people not wanting further (or any, really) clarity?

      In fact, the anti-software patent types should BEG the Court to take this up to end the question once and for all, especially since it’s so “clear” post-Alice. What are you afraid of?

      1. 2.2.1

        In fact, the anti-software patent types should BEG the Court to take this up to end the question once and for all, especially since it’s so “clear” post-Alice. What are you afraid of?

        You dont understand either clearly. It has nothing to do with software. Morse UNQUESTIONABLY had a novel non-obvious machine and his CLAIM was still invalid because what he CLAIMED was way broader than what he INVENTED.

        Ultramercial probably has algorithms which carry out those steps. That’s great. They have to claim THOSE ALGORITHMS. They can’t claim any algorithm that achieves the result just like Morse couldn’t claim every machine that prints at a distance.

        It’s not hard. Really it’s not.

        The PTO is in disarray re: 101,

        To the extent the PTO is in disarray about most anything except BRI, the problem lies squarely at the feet of the Fed Cir being terrible. The PTO lacks the ability to do other than what the Fed Cir lays out, no matter how bad they are at what they do.

        1. 2.2.1.1

          Random,

          100% with you. Applicants/their attorneys are unable/unwilling to distinguish between a) what they actually invented and b) the claims they asked for. You see it here every day. That fact is the root of most problems, which 101 and 112 are (finally) beginning to address.

        2. 2.2.1.2

          Random, do me a favour can you? On the basis of how Europe manages such issues, I’m curious.

          I’m postulating something genuinely new and genuinely not obvious, something that lies outside the ambit of the “useful arts”, something that is computer -implemented and is claimed as a programmed computer. The scope of the said claim is commensurate with the contribution to the “art” (which is not a “useful” art), the algorithm if you like. The specification is enabling, sufficient and provides adequate “written description”. No problem for the person of ordinary skill to implement the claimed matter.

          Question for you. Can this “thing” exist and, if it can, is it susceptible of patent protection in the USA? Y/N, and why, please.

          1. 2.2.1.2.1

            Strawman of the day:

            “something that lies outside the ambit of the “useful arts”, something that is computer -implemented and is claimed as a programmed computer. ”

            Way to postulate a false question, MaxDrei.

            Your loaded question demands its corollary:

            something that lies within the ambit of the “useful arts”, something that is computer -implemented and is claimed as a programmed computer.

            After all, software is first manufactured for a utilitarian purpose (by and large – much, much, much larger than the possible case of software being manufactured for a non-utilitarian purpose)

          2. 2.2.1.2.2

            To say it’s outside of the useful arts is to be conclusory. I’m not sure anything that performs a function is outside the useful arts. To get at your more basic question – I don’t think software as a class is something that lacks eligibility. I do think, however, that applying the laws to software results in much smaller scopes than pretty much every practicioner believes.

            The Oracle copyright case is an interesting contrast. It’s the position of the fed cir that software is copyrightable because it can be expressed in multiple different ways. Yet its the position of a lot of patent practicioners that disclosure of one expression is the same as disclosing every expression. Regardless of that, however, the only thing one is entitled to is their disclosed embodiments and the equivalents of those embodiments. Most software specifications disclose zero embodiments. Those that do don’t disclose enough to fill the scope of their functional claim language. It’s not that you can’t protect software, its that the claims to software are routinely overbroad.

            1. 2.2.1.2.2.1

              I’m not sure anything that performs a function is outside the useful arts.

              Pretty sure it depends on the “function” in question.

        3. 2.2.1.3

          But I think you’re the one who’s missing the important issue. Because the hypothetical claim to which you say Morse was entitled would not have provided commercially valuable protection. Having seen his invention and read his patent, his competitors could (I assert) easily have designed around his claim. That is because, contrary to your assertion, he really invented too things. His big, important invention was the more general idea, and his small, unimportant invention was the machine he used to perform it. And because the entire concept of patents is justified by a constitutional imperative to promote the useful arts, one should not be so cavalier about failing to provide commercially useful protection.

          1. 2.2.1.3.1

            Morse got claims to his system of marks and spaces and they were found to be infringed by a competitor who used a different code.

            As to Morse’s apparatus, there were two essential features: the machinery for making the markings and spaces and the repeater system whereby one circuit closed the next.

            The repeater system and the mark space system were the most important inventions.

            1. 2.2.1.3.1.1

              How much did that space weigh, Ned?

              (Still “waiting” for your answer. Why don’t you answer Ned?)

              /off sardonic bemusement

          2. 2.2.1.3.2

            His big, important invention was the more ge neral idea, and his small, unimportant invention was the machine he used to perform it.

            The ge neral idea wasn’t an invention at all, that’s the point. Congress lacks the power to restrict the flow of ideas. Ideas and inventions are not the same thing.

            Whether the Morse telegraph was “small” and “unimportant” and “easily designed around” is irrelevant. If it was easily designed around then Morse is just as well situated (and more so nowadays, as there is a lag in publication time) as anyone else to lay claim to the designed-around embodiments. If his machine was small and unimportant then his patent should be too.t He changed our way of looking at the world, but that is not something that patent law compensates for. Kennedy said we should go to the moon in this decade, that doesn’t make him the inventor of the spaceship that got us there.

            Nobody considers Morse the inventor of the television or the cell phone text or the internet computer, so I don’t know what makes you think that he should be entitled to a scope that reads on them. You don’t advance the art by foreclosing entirely new fields of invention by granting an overbroad scope to someone.

      2. 2.2.2

        Not to mention if you perform an analysis of the caselaw and the PTO’s understanding of it, you’ll realize it’s completely incomprehensible.

        Consider the following claim:

        Claim A. A computer-implemented method for halftoning a gray scale image, comprising the steps of:
        generating, with a processor, a blue noise mask by encoding changes in pixel values across a plurality of blue noise filtered dot profiles at varying gray levels;
        storing the blue noise mask in a first memory location;
        receiving a gray scale image and storing the gray scale image in a second memory location;
        comparing, with a processor on a pixel-by-pixel basis, each pixel of the gray scale image to a threshold number in the corresponding position of the blue noise mask to produce a binary image array; and
        converting the binary image array to a halftoned image.

        To me, this claim is entirely mathematical. There is nothing in the claim to indicate there is an output on a computer (the “halftoned image” can be stored or discarded or be in “transitory” memory). One could easily invalidate this claim under Alice, in my opinion.

        Yet, this claim is apparently OK under Alice. See the Examples produced by the PTO.

        Consider this claim also in the Examples:

        Claim B. A method of generating a device profile that describes properties of a device in a digital image reproduction system for capturing, transforming or rendering an image, said method comprising:
        generating first data for describing a device dependent transformation of color information content of the image to a device independent color space through use of measured chromatic stimuli and device response characteristic functions;
        generating second data for describing a device dependent transformation of spatial information content of the image in said device independent color space through use of spatial stimuli and device response characteristic functions; and
        combining said first and second data into the device profile.

        Now, this claim is also (according to the PTO) not patentable.

        What’s the difference between Claim A and Claim B? What makes Claim A patentable and Claim B unpatentable?

        I’m at a loss to determine the difference.

        If I’m at a loss to determine the difference, and I’ve gone through law school, read hundreds if not thousands of court cases, and have many years of experience, how are Examiners, with no legal training, supposed to apply these rules?

        And how am I to counsel my clients when I cannot determine what the rules are?

        1. 2.2.2.1

          It all comes down to (1) the abstract idea is defined, and (2) which claim elements are ignored when searching for “something more.”

          Claim A is a terrible example by the USPTO. They allege that the “generating” step is the abstract idea, but just as easily could find the claim ineligible by defining the abstract idea as simply “halftoning a gray scale image.” Underscores that the USPTO has no idea what it is doing.

        2. 2.2.2.2

          “There is nothing in the claim to indicate there is an output on a computer”

          Why does there have to be a output “on a computer”?

          Why isn’t it sufficient to have “output” reside in the memory of the machine? Isn’t displaying or printing just insignificant post solution activity?

        3. 2.2.2.3

          “What’s the difference between Claim A and Claim B? What makes Claim A patentable and Claim B unpatentable?

          I’m at a loss to determine the difference.”

          The difference is in specificity.

          “first data” verses a blue noise mask generated in a particular way.

          “spatial stimuli and device response characteristic functions” verses compare it to a threshold value from a corresponding position in the blue noise mask.

          “the use of measured chromatic stimuli” with no indication as to how the stimuli are used.

          1. 2.2.2.3.1

            As I have already noted, there is no way to factually reconcile pre alice eligible claims with post alice ineligible claims like those listed in the “guidelines.”

            Its a total scam.

            So how do you use it you may ask? Well because it is a total scam you cant build a factual or legal framework using it.

            Rather, you can only point to an eligible claim example in your remarks and state that your alice rejected claim is similar for [X] reasons and therefore should not be rejected under 101.

            Thats it.

            This isn’t rocket science.

        4. 2.2.2.4

          Yet, this claim is apparently OK under Alice.

          LOL. Who says? The PTO?

          Funny stuff. The PTO also thought Prometheus’ claims were “okay”, although they couldn’t say why.

          1. 2.2.2.4.1

            Further evidence that clarity is needed. Everyone would love a nice easy test, yet SCOTUS doesn’t seem to want to comply.

        5. 2.2.2.5

          The PTO was under tremendous pressure by some elements of the bar (who are now *starting* to see the writing on the wall) to provide “positive” examples to “guide” examiners. The topography post-alice wasn’t/isn’t exactly lousy with “positive” examples, so the PTO reached back to claims found eligible in pre-alice cases to make up said “positive” examples.

          There is no way to reconcile them. Those nonsense pre-alice examples are there so that the PTO can provide cover to its allowance machines so that they can keep allowing.

          That is all.

          Feel honored – you can now point to an example claim in the guidelines and say things in an interview like: “i just don’t understand how our claim is different from that (pre-alice) example…” You might even be able to keep a straight face while doing it.

          Crooked and broken, but its just business as usual.

            1. 2.2.2.5.1.1

              Coming soon to a law firm near you:

              stealth layoffs, then just layoffs.

              1. 2.2.2.5.1.1.1

                Examiners will absolutely love this. Until the PTO begins laying them off in droves.

                1. …

                  Any examiner with a working head on his shoulders would be dreading this for exactly the reason you provided.

                2. …

                  Just because the courts blow up 101 on applicants doesn’t mean there still won’t be hordes of people trying to get themselves a 101 rejection.

                3. …

                  6,

                  I think law firms will layoff first, but the PTO will not be that far behind. The backlog is already in decline. Turn down filing even further and you will see it decline even faster.

                  And yes, the PTO has an effective tool for stealth layoffs as well. Its called SPE “quality reviews” – coming to an art unit near you. They can easily cull 5-10% of the corps citing “quality.” All it takes is a little nudge and examiners fall into a production-quality death spiral.

                  And that will happen long before RIFs are even discussed with POPA.

                  If you think Examiners will be immune from the coming p@in, you are wrong.

                4. …

                  “And yes, the PTO has an effective tool for stealth layoffs as well. Its called SPE “quality reviews” – coming to an art unit near you. They can easily cull 5-10% of the corps citing “quality.” All it takes is a little nudge and examiners fall into a production-quality death spiral.”

                  We’ll see I suppose. There is a rather lengthy procedure to go through for such “quality reviews”.

                  It would likely be easier for the PTO to just stop hiring if it’s going to be that big of a deal. And last I heard, we’re still hiring.

            2. 2.2.2.5.1.2

              What amazes me the most is how obvious of a scam this was – and that no one is angry about it.

              No one.

              The PTO had absolutely no business putting out those examples. They are knowingly misleading.

              Has the bar degraded so far that we are willing (even joyfully so) to accept poisoned fruit just to have something to peddle?

              What the h&ll happened to us?

              1. 2.2.2.5.1.2.1

                Husbands, wives, children, mortgages, etc. Feel free to fight the good fight.

        6. 2.2.2.6

          The half-toned image is raw data that is untethered to anything physical. The claim does not describe any limits on how the image is obtained (e.g., a photograph) or what it might represent (e.g., EKG data). The only limit on an image is how the data is formatted.

          In contrast, the device profile is linked to some type of device that at least could be tangible.

          1. 2.2.2.6.1

            Really NS2, did you not read what I wrote above?

            It was made up. Its complete fantasy.

            I will say that one more time for the sl0wer members of the audience:

            It was made up. Its complete fantasy.

            There is no way of factually reconciling the eligibility of those example claims from pre-alice cases to those examples found ineligible post-alice.

            None. The patentability standard changed. That’s it. The rest is nonsense.

                2. …

                  Not sure what point you are trying to make, sad – unless you do not think law is an important point (on a patent law blog)…

          2. 2.2.2.6.2

            “The half-toned image is raw data that is untethered to anything physical. The claim does not describe any limits on how the image is obtained (e.g., a photograph) or what it might represent (e.g., EKG data). The only limit on an image is how the data is formatted.”

            Of what significance is the source of the work piece? The method is versatile. It works no matter the source of the image. Why does or should that render the invention unpatentable?

        7. 2.2.2.7

          The example may have been garbled when the claim was copied from the original patent (US5111310, Parker ‘310).

          Here is the claim as it appeared in the patent.

          13. A method of halftoning a gray scale image by utilizing a pixel-by-pixel comparison of said image against a blue noise mask array stored in a first memory, comprising the steps of:
          a) scanning said gray scale image to be halftoned to create a gray scale image array on a pixel-by-pixel basis;
          b) storing said gray scale image array in a second memory;
          c) comparing, on a pixel-by-pixel basis, the value of each corresponding pixel in said blue noise mask array and said gray scale image array to produce a binary image array; and
          d) converting said binary image array to the desired halftoned image.

          One can’t scan a document mentally.

    3. 2.3

      Random, of course a claim having a programmed computer in it can recite patentable subject matter. We saw this in Diehr.

      What the questions appears to be an asking rather is the following: Does a generic computer, programmed with novel software, categorically recite patentable subject matter?

      I too share your amazement that Ultramercial would have the temerity to even ask that question of the Supreme Court after Benson and Alice. However, we have to note that the Federal Circuit for a very long time, since Application of Bernhart, that a programmed computer recited eligible subject matter without more. They even instructed the patent office in Alappat to issue claims to programmed computers. That led to the avalanche that so vexes today’s patent system.

      Hopefully, both the Federal Circuit and the patent office have learned their lesson that a programmed computer by itself, without more, cannot recite patentable subject matter.

      1. 2.3.1

        Careful what you wish for Ned – that “Gist/Abstract” sword from the Royal Nine came with no limitations.

      2. 2.3.2

        What the questions appears to be an asking rather is the following: Does a generic computer, programmed with novel software, categorically recite patentable subject matter?

        You must have misread what I said. The answer is to this question is no, because its entirely possible to be novel and overbroad (which is why “yes, possibly” was the answer to the last one).

        1. 2.3.2.1

          The way I see the question presented is that Ultramercial wants a ruling that a programmed computer is categorically eligible when the novelty of the software-implement steps is a given — without any limitation on what those steps are –; and because of that lack of limitation, the request extends to all programs, for any computer, including those described in Benson and Flook.

          “Whether computer-implemented or software-based claims, reciting novel or non-routine steps with no conventional counterparts, still cover only patent-ineligible “abstract ideas” as this Court has interpreted 35 U.S.C. § 101?”

          1. 2.3.2.1.1

            Benson was not about a computer.

            Further, in Benson we have this gem that you conveniently never remember:

            “We do not so hold”

            Oops.

    1. 1.1

      Just like they won’t define “abstract,” or set pretty much any brightline rule: they are addicted to the policy-setting power of sticking their fingers into the nose of wax.

      We need a redux of 1952. We need a Churchchill, not a Chamberlain. Perhaps O’Malley from within the judicial branch could be that champion of the Rule of Law…

      1. 1.1.1

        We need a decision. Black-and-white. Software is not patentable. Or all software is patentable. Or software is not patentable except in instances (1), (2), and (3). Or ineligible if no novel/non-obvious hardware. Or something, anything really. Stop pu$$yfooting around the issue and make a decision.

        1. 1.1.1.1

          You won’t get that because to get there one has to employ critical thinking, inte11ectual honesty, and the recognition and incorporation into all of the “emotion/feelings/opinion/philosophy” such necessary foundational observations as:
          -software is a machine component and manufacture in its own right
          -software is equivalent to hardware and is equivalent to firmware.

          To get to that place of “black and white,” you would need to eliminate the spin of the anti’s. That just won’t happen.

            1. 1.1.1.1.1.1

              Misplaced question more like it, my “reflecting” friend.

              (otherwise known as:
              Accuse Others Of That Which Malcolm Does

              Got any funny gifs?

        2. 1.1.1.2

          hm,

          Let me be frank, speaking from a purely self-interested point of view, no we do not need a decision. In fact we do not even want a decision.

          We know that the percent of software claims that are potentially eligible ranges from 99.99999999%(infinite) to 0% (but not 100% from bilski and alice).

          We also know that the post alice topography suggests that the number is currently closer to the 0% mark than the 100% mark.

          Further, if corp clients adjust their behavior and slow filing/abandoning apps even slightly in response to the current topography, there are going to be non-insubstantial layoffs.

          So… We currently exist in a manufactured twilight (thanks to some very intelligent people with more than a little foresight and pull at the PTO) where we can pretend, due to the corrupt and broken PTO and their “guidelines” scam, that the percent of eligible claims is almost 100%.

          A decision only hastens the end of this twilight.

          Like I said, we do not need a decision.

          If you think about it, we do not even want a decision.

          1. 1.1.1.2.1

            You realize that 99.9999(infinite) = 100% right? Here is the proof:

            99.9999(infinite) = 99+.9999(infinite)

            .999(infinite)/9 = .11111(infinite)

            .111111(infinite)=1/9

            9*(.9999999(infinite)/9)=.999(infinite) = 9*.111(infinite) = 9*1/9 = 1

            99+.99999(infinite) = 99+1 =100.

            1. 1.1.1.2.1.1

              From step two to step three in your proof you introduced an error in assuming that .999(infinite) = 1.

              It does not. It may well approximate 1, but it is not equal to 1.

              Your choice of moniker reveals more than you perhaps wanted it to.

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