Patentlyo Bits and Bytes by Anthony McCain


On September 24-25, 2015, the Chisum Patent Academy will hold an advanced patent law seminar in Washington, D.C. The two-day seminar will explore blockbuster SCOTUS and CAFC patent decisions of 2014-2015 and debate responsive strategies. The Academy’s unique round table format is geared for experienced practitioners (litigators and patent prosecutors) and is limited to ten participants. All sessions are led by treatise authors and educators Donald Chisum and Janice Mueller. The seminar will meet at the D.C. office of Kaye Scholer LLP. For more information on seminar content and registration, visit or e-mail

Get a Job doing Patent Law

About Anthony McCain

Anthony McCain is a law student at Mizzou where he is focusing on intellectual property; He has a background in mechanical engineering.

9 thoughts on “Patentlyo Bits and Bytes by Anthony McCain

  1. 3

    link to

    ArtistShare tried to convince the judge to allow its patent, claiming that it wasn’t trying to own crowdfunding. ….

    “Defendants’ repetition of words like ‘particular’ and ‘specific’ in bold italics when referring to the claims in the ‘887 Patent does not make them so,” wrote US District Judge Katherine Failla in yesterday’s order. [<– LOL!!! Sound familiar?]

    It was a bit beside the point, since the patent could still be out of bounds even if it described a specific "way" of crowdfunding.

    Indeed. This stuff really isn’t that difficult. What’s difficult is figuring out why so many seemingly intelligent just sat back and cheered while our patent system was turned into an incredible joke.

    “We’re pleased the Court agreed that this patent is invalid, and we’re happy to see this case reach its conclusion,” said Kickstarter Deputy General Counsel Michal Rosenn in a statement on the case. “This is a win for artists, ideas, and creative freedom.”

    Indeed. Now let’s return to our deep thinking and totally serious professional patent addicts and listen to them rant about how the invalidation of this patent is plainly one more step towards a fascist state. LOLOLOLOL!!!

    1. 3.1

      You do realize that your “totally serious meme only like makes you totally and arse chapeau, right Malcolm?

  2. 2

    What? Taking your point to its logical conclusion eliminates software patents, since all software patents are simply collections of rules implemented on a computer. SCOTUS went out of its way to indicate that Alice doesn’t kill software, the Federal Circuit upheld software claims in DDR Holdings, and district courts and the PTAB are still rejecting invalidity contentions.

    1. 2.1

      all software patents are simply collections of rules implemented on a computer

      Thanks for the admission.

      If only everyone were so honest and forthright.

    2. 2.2

      Note that this admission:

      all software patents are simply collections of rules implemented on a computer

      necessarily means that any and every patent claim that merely recites the use of computerized “rules” (generally) in some information processing context is, at best, per se obvious junk and is just as likely ineligible as well.

      That’s what McRo is about and that’s why the claims in that case are d.o.a.

      But go ahead and tell everyone that nobody ever used “rules” before when synching audio to animated lips. Someone else tried that argument here. Funny stuff.

      1. 2.2.1

        Your inability or refusal to address the heart of my post is glaring. Everyone knows software patents include lists of rules. This is nothing new. SCOTUS knew this in Alice when it stated that many software patents are eligible. The Federal Circuit obviously knew this when upholding a software patent comprising rules + general purpose computer. District courts and the PTAB know this as well.

        Try harder, please.


          Everyone knows software patents include lists of rules.

          Pretty sure I did address this: I agreed with you.

          SCOTUS … stated that many software patents are eligible

          That’s nice. Read Bowers v. Hardwick sometime and try not to laugh.

          Here’s the deal: the enforceability of your software patent is directly proportional to the competence of the attorney representing the entity you decide to sue (assuming that attorney’s client isn’t itself invested in preserving the validity/eligibility of junk patents that should never have been granted).

          I’ve been listening to sockpuppets like you for years telling people that virtually everything is eligible for patenting. You were wrong then and you’re going to continue to be wrong. I’m surprised that you haven’t just gotten used to that by now.



            Because Bowers is germane… how exactly…?

            Use those short declarative sentences that you are always on about…

  3. 1

    Re: McRo v. Square Enix, the hacks at Patent Docs are apparently still desperately trying to keep their heads buried in the sand:

    Judge Wu used patent-eligibility to make a written description and enablement argument, and justified it by saying that the claims preempted what is indisputably a very narrow field.

    Remember: the narrowness of the field that is pre-empted by a particular claim is irrelevant to the ineligibility issue. What matters — all that matters — is that, within a field, some ineligible subject matter (e.g., an abstraction) is being removed from the public domain. This key point was recently underscored again by the Federal Circuit.

    Nor did inventiveness make the claims patentable. Not unlike the Federal Circuit in Ultramercial, Judge Wu found that novelty does not necessarily preclude a finding of invalidity under § 101.

    That’s because (surprise!) “the novelty” of the ineligibile subject matter does is irrelevent. Anybody who doesn’t understand why this is the case should not be allowed near a patent [consider: “I claim: a novel set of rules wherein said rules include x, y, and z” <—ineligible]. That the authors of the article at Patent Docs can't be bothered to point this fundamental and critical fact out to their readers in the context of a lengthy discussion about 101 is why those authors are correctly deemed to be "hacks."

    It's an ongoing trend there, of course, where the goal is to replace the Supreme Court's logical framework for evaluating subject matter eligibility with something illogical and unworkable (i.e., the zombie mythology that would simply require the recitation of eligible subject matter anywhere in a claim, regardless of whether that subject matter is in the public domain or not).

Comments are closed.