Marvell v. Carnegie Mellon: $300 million is a lot, but not $1.5 billion

The Federal Circuit has greatly reduced the $1.5 Billion award to Carnegie Mellon University — leaving a still healthy $278 million to be paid by chip manufacturer Marvell Technology (plus interest) with the potential of additional receipts from a new trial on whether foreign sales are actually US sales. [Read the Decision]

1. Willful Infringement: A portion of the original damage award (~20%) in this case came from enhanced damages.  The statute provides that “the court may increase the damages up to three times the amount found or assessed.”  Although seemingly open-ended, the court has restricted enhanced damages only to the situations involving willful infringement — and further requiring “clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” and “this objectively-defined risk . . . was either known or so obvious that it should have been known.” (quoting Seagate).

The Federal Circuit has ruled that an adjudged infringer who presents an objectively reasonable (though ultimately deficient) defense at trial cannot be held liable for enhanced damages.  Here, the court found that Marvell’s invalidity defense had some merit and was not ‘objectively unreasonable.’

2. Foreign Infringement: The original verdict included damages for all of the chips that resulted from Marvell’s use of the infringing methods sold worldwide – including chips that were manufactured abroad and never imported into the US.  On remand, the Federal Circuit asked the lower court to reconsider particularly whether those chips made and used outside of the US could be considered as “sold” in the U.S. since, at times, the “place of inking” can be the location of the sale even if delivery is at a different location.

3. Laches: Under the equitable doctrine of laches, a patentee who has unreasonably and prejudicially delayed the filing of an infringement lawsuit will be barred from collecting damages for pre-filing infringement.  The non-statutory (and potentially defunct) doctrine of Laches sits atop the statutory limit on collecting back damages that accrued more than six years before the filing of the infringement action.  Here, the district court found that CMU’s six-year delay in filing suit after noticing the infringement was “unreasonable and inexcusable” and that Marvell had suffered some amount of evidentiary prejudice.  However, the district court found that Marvell did not suffer economic prejudice due to the delay because, “Marvell . . . would have gone ahead with its infringement regardless, accepting the risk of liability.”

190 thoughts on “Marvell v. Carnegie Mellon: $300 million is a lot, but not $1.5 billion

  1. 13

    OT for those willing to learn: during oral arguments today in 14-1656 Progressive Casualty Insurance v. Liberty Mutual Insurance Co one of the Federal Circuit judges on the panel (Taranto? Wallach) mocked the idea that the PTAB is acting as a “death squad.” Cue it up around 33:30.

    Live and learn, folks. Live and learn.

    [And dang if those aren’t some incredibly junky patents! Nobody could have predicted that the squeaky clean insurance industry would jump in headfirst when the gates to the swamp were opened …]

    1. 13.1

      More education in 2014-1549 Progressive Casualty Insurance v. Liberty Mutual Insurance Co.

      Judge [in disbelief]: As a basis for a statement in your brief [that the PTAB is a “death squad”] you are citing a press release … that you released?!

      Patentee: Oh .. .er… um … context?

      Judge: Seems very close to improper to me. I’m also disturbed by your statement in your brief that the Board is “predisposed” to invalidate a patent.

      Patentee: Um mumble mumble fair inference mumble …

      Judge [plainly p.o.’d]: So whenever a court rules against you, it’s “prejudiced”? I find that argument disturbing.

      [Later]:

      Patentee: We’re sorry.

      Judge: The lesson learned is that when you make a statement that is unsupported, inaccurate or hyperbolic that it will cost you time to explain it.
      —————————-

      Who in their right mind would put nonsense like that in a brief in the first place? Practitioners: drink all the Internet kool-aid about the “patent ha ters” at the PTO and among the “Royal Nine” but for cripessake don’t waste the Federal Circuit’s time with your tired scripts. You’re much better off focusing on procedural minutiae to save your junky information processing patents.

      The best part about this oral argument, in fact, was not the above exchange but the part where an insurance actuarian was deemed unfit to testify about the “automating” “technology” in the claim. LOL.

      1. 13.1.1

        Sounds like Judge Wallach to me. He often criticizes counsel for hyperbolic arguments in briefs. A good example is footnote 1 in Ministerio Roca Solida v. U.S., No. 2014-5058 (Feb. 26, 2015) (where the appellant suggested that an adverse decision could cause citizens to take up arms in rebellion). That footnote pales in comparison to his criticism of counsel at the beginning of the oral argument.

      2. 13.1.2

        The funniest part is how Malcolm does not recognize his very own posting habits in what he mocks.

        That (banned) acronym comes to mind!

        1. 13.1.2.1

          posting habits

          One key difference, “anon”, is that when I talk about grifting patent attorneys trying to make it rich off the Internet (or any other existing technology which the patent attorney “innovator” had zero to do with) by filing (and endlessly appealing) junky patent claims, I’ve got plenty of examples to support the characterization (and more and more keep popping up all the time — nobody could have predicted!).

          It’s not “hyperbole” just because you wish nobody was pointing it out.

          On the other hand, characterizing the PTAB as a “death squad” with a predetermined bias against patents … and citing some self-serving press release in support of that characterization …?! Wow. Just … wow.

          1. 13.1.2.1.1

            Except I’m talking NOT about “examples of what others do,” but instead I am talking about your bloviating about patent law.

            I don’t give a rip about the examples of the grifters and I typically do NOT defend them at all (you need a definition for that?)

            Instead I discuss the law.

            Maybe you should learn about this thing called law.

  2. 12

    Hypothetical for MM, Ned, Night, et al:

    Imagine a USSC case that overrules Alice as to the test(s) for abstractness, replacing it instead with a bright line rule accepted by almost everyone and easily applied to any method or software patent.

    What, if any, huge problems would remain in the patent system?

    Every thread turns back to subject matter/101. It’s clear that until this difference in philosophy is bridged, the system is bled of legitimacy, the litigation abusers will continue to thrive, and the economic benefits of a working system are squandered.

    1. 12.1

      Martin, since Alice and Hotel Security are virtually identical in terms of a “test,” I see nothing wrong in the general approach where claims have mixed subject matter, some eligible, some not.

      What you might be suggesting is a bright line test for abstractness? Well the MOT came close, but given that the Supremes unanimously rejected that test as a bright line test, I would suggest that you should not hold your breadth looking for a better one.

      I still think the MOT, as a default test, is going to prevail such that if a claim fails the MOT, it would be presumed ineligible.

      But we also have the issue of claiming a result, which is not so much about eligible subject matter as about true abstractness.

      There are a lot of problems in the patent system caused in large measure by very poor decisions from the Federal Circuit in any number of cases. BMC Resources is a prime example. But there are many, many others.

      Then we have the AIA — from one end to the other a mistake.

      1. 12.1.1

        BMC Resources v. Paymentech was about indirect infringement only. How does that figure into the current discussion?

        1. 12.1.1.1

          Troubled, the reference to BMC Resources was an answer to the question of whether there were problems in the patent system other than 101.

    2. 12.2

      Martin: Imagine a USSC case that overrules Alice as to the test(s) for abstractness, replacing it instead with a bright line rule accepted by almost everyone and easily applied to any method or software patent.

      Just for the record, the Supreme Court’s line is already fairly bright and is already accepted by “almost everyone.”

      The fact that some self-interested patentees and their mouthpieces are endlessly slithering around the Internets and screeching about the “Royal Nine” might give the appearance of some huge “controversy” but there isn’t much that’s “controversial” about what the Supreme Court has done. What was “controversial” was what the Federal Circuit did when they blew a giant gaping hole into the hull of the patent system.

      There’s no doubt that there will be further clarifications from the Supreme Court going forward, nor is there any doubt about the ultimate end point. The only question is how fast will we get there? It’s difficult to predict these things but my guess would be “sooner than you think.”

      Of course, if the PTO and academia stepped up their game and started addressing the issues that have been put under their noses in a frank, direct and sensible fashion we’d have a smoother descent to solid ground (pun intended) than we otherwise will. The key is to start with the fundamentals and work outwards rather than assume the desired result and sweep the fundamentals under the rug for the benefit of a tiny, tiny, tiny number of people who don’t need more benefits.

      1. 12.2.1

        MM I think Alice was a sound decision (9-0 means that they had a pretty clear idea of what they wanted to do) but I don’t agree that it offers many bright lines. I know this first hand.

        It’s sound because we can’t have a patent system that patents ideas, as much as the maximalists wish it were so.

        However, the forces of counter-revolution are not limited to the fringe we see here. IBM is stone-cold legitimate, and their opinions about patents carry a lot of weight (hence my utter dismay at their behavior in my case).

        There are legitimate arguments that some kinds of software and business methods should be patent eligible, or the possibility that some future unknown kind of information technology should be – that’s why the USSC is so resistant to using MoT as a bright line test, even though its utility in 99% of situations is evident.

        Your average software PHOSITA off the street probably thinks that especially inventive and useful software could be patent eligible, rather than thinking in terms of how software itself may relate to the patent laws. I’d say the same for the average businessperson. Patenting methods with abstract results sits rather less well with just about everyone outside the patent system, no surprise there.

        Ned, there will always be hard cases and questionable decisions in all areas of law- no human system, esp. one meant to resolve disputes, could avoid that fact.

        So can a bright line test be found that prevents patenting ideas (or results Ned), but still protects structural improvements in information processing machines and meets the Constitutional requirement to protect discovery and invention?

        And if this line can be found, does it return the system to a sound state? I think it does.

        I’ve spend a lot of time in thought about such a test….

        1. 12.2.1.1

          Martin, do you understand that business methods are not improvements to machines, manufactures or compositions? There are no legitimate arguments that business methods are patentable subject matter. Improvements to machines, manufactures or composition for business purposes are, however, patentable.

          1. 12.2.1.1.1

            Ned, most software patents are putatively methods- that’s what they say at the top anyway…

          2. 12.2.1.1.2

            Ned, your view of methods as a second class category just is not supported by the words of Congress.

          3. 12.2.1.1.3

            What about to “processes”?

            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.

            Isn’t a business method a “process”? (And I’m anti-business-method, but one shouldn’t completely get rid of words of 35 USC 101.)

            1. 12.2.1.1.3.1

              A bright line test for abstractness should encompass the notion that things that people do are “processes” in a patent sense. Or not.

              1. 12.2.1.1.3.1.1

                Martin –

                People do all invented processes. Who else does them? In some cases, they use tools in performing the process, in others they just use their hands and/or brain.

                For example, I’m sure the process for making Lipitor involves combining chemicals (stirring?) and maybe heating them or subjecting them to increased pressure, them maybe filtering and perhaps drying…

                These are all steps carried out by one or more people, in the lab, maybe with beakers, measuring thingies and boson burners and in large scale, perhaps with the use of hoppers and mixers and measuring sensors…

                All invented processes are performed by people in one sense or another.

      2. 12.2.2

        The Supreme Court’s line in Alice is “fairly bright”? What does that even mean? It’s either bright or it’s not. To me, it’s the antithesis of “bright”.

        Also, please, please, please get rid of these obnoxious emails asking me if I want to confirm my subscription to these. I do not. I don’t have time to read the many responses MM is about to post anyway.

        1. 12.2.2.1

          PatentBob,

          When you post a comment, there is a drop-down box below the “Post Comment” button that lets you choose the level of email notifications you will receive regarding your comment. If you choose “Don’t subscribe”, you won’t get the emails.

          Annoyingly, the drop-down is below the button for submitting new comments, so it’s easily missed, and it recently changed (for me, anyway) so that it’s defaulting to subscribing to notifications for every new comment.

          As a suggestion to the good professor for enhancing the user-friendliness of Patently O, perhaps the submitter’s subscription preference could be retained and recalled for subsequent comments?

  3. 11

    A Google factoid: today is the 101 anniversary of the first electric traffic signal system, something not likely to be patent eligible in today’s “Gist/Abstract” judicial environment.

    Stomp on that gas pedal Folks.

    1. 11.1

      And how do you “Gist/Abstract”? Invoke a witch word. The invention is an XXX and XXX are not patent eligible. Rather than actually looking at the elements, the combination of elements, and the claim as a whole.

      The witch burners….

    2. 11.2

      the first electric traffic signal system, something not likely to be patent eligible

      Of course if “anon” and his “patent everything!” cohorts were around then they’d be sitting around in their barns and grifting themselves into a frenzy filing their super techno claims reciting “wherein said traffic is morning traffic”, “wherein said traffic is holiday traffic”, “wherein said traffic comprises a robot car”, “wherein said electricity is provided by a public utility”. Fun times!

      Meanwhile, have a listen to today’s oral arguments in Liberty Mutual where the patents are directed to (try to believe it) “a system for acquiring and processing relevant data for an insured unit of risk”.

      You guys broke the system, “anon”. Nobody needs your help trying to fix it. Just stock up on kleenex, lock yourself in a room for the next couple years, and cry your eyes out.

        1. 11.2.1.1

          he g-g-g-grifters are coming!

          The grifters showed up quite a while ago, “anon.” Have you already forgotten about your bff Scotty and his patent on a new “paradigm”?

          “A company is a physical thing and as such is analogous to a machine.” — so sayeth the desperate grifter as the court’s ring finger leaves a brilliant red mark across his grotesque money-lusting rictus

  4. 10

    Ned –

    You said”

    ” a viterbi detector is a specific, known machine. It can be implemented with circuits, with ASICS, with FPGAs, with programmed DSPs running “firmware.” Perhaps one could program one’s laptop to work in the context of debugging.””

    Couldn’t the DSP instead run “software” and accomplish the same thing? You know cell phones and base stations use Viterbi detectors too. Do you think they have room in those things for a special circuit for Viterbi detect ing or do you think maybe in at least some models one processor does everything?

    “It make no fricken difference HOW a known machine or component is constructed so long as it is a KNOWN machine.”

    OH, I see. If you clam one method “for” a new machine, that’s abstract. If a method for an old machine, that’s patent eligible.

    Wait a minute…. isn’t your main complaint that computers are known?
    Don’t argue every day that a method for a computer is not patent eligible?

    Why doesn’t that apply when the method does rasterizing or the method does Viterbi detection?

    “From a 101 view, the claims improve a known machine. They pass 101.”

    So If Bilski amended the preamble to say “for a Wang office computer” it would have passed 101?

    “These are not claims to the use of a known computer to run calculations that are not used to improve a larger machine or process.”

    Wait a minute…. now “known” is a bad thing? A minute ago you said know computers (Viterbi detectors) were golden.

    Allegedly the claimed method makes a Viterbi detector better at Viterbi detecting. OK fine. That’s why its patent eligible… great

    So, Why isn’t a method that makes a and intermediate settler better at, say intermediate settling patent eligible?

    1. 10.1

      Les, one of my examples was in fact a programmed general-purpose digital computer. And in fact, in the case itself, the court found that using a programmed general-purpose computer while debugging the algorithm was an infringement.

      Regarding the issue of known machines versus new machines, with respect to an old machine all you have to do is name it. With respect to a new machine you have to describe that machine with objective structural limitations in the claim.

      1. 10.1.1

        Its a method. I’m not claiming a device. Since when are processes a second class invention that must be tied to hardware?

        They are listed first, after all…

            1. 10.1.1.1.1.1

              Sure it does. If one is claiming something abstract that is rescued by being a part of a specific machine, that machine must be known so that it can be named or it must be described in the claim in structural terms.

              A computer is not a specific machine. A claim to improving an old computer by adding new functionality to that computer might be a specific machine. Those examples involving FFT circuits or microcode are a good example.

              1. 10.1.1.1.1.1.1

                “A computer is not a specific machine.”

                Why not? Why is a Viterbi-like detector specific but computer is not? You yourself said there are a wide variety of these ASIC, DSP/Firmware, etc embodiments. Clearly some of them don’t include the feature of claim 1 here. Others apparently do. Why is Viterbi-like detector specific enough for your test but computer is not? What is a Viterbi -not-link detector? How is a Viterbi-like detector different from a Viterbi detector?

                Is Automobile specific? Is 1967 Buick Skylark specific?
                Is tractor specific? Is word processor specific (e.g., Wang)? Is word processor specific (E.G. PC running WORD)?

                And who said there has to be a device recited in a method?

                Your logic makes no sense and there is no basis for insisting that a method claim recite a device, known or unknown, “specific” as judged by you or not.

                1. Les, I find is almost baffling that you do not understand simple concepts.

                  The point is that patents are for new or improved machines.

                  Does that help?

                2. Ned –

                  Some patents are for processes. Does that help unbaffle you?

                  Now how about answering my questions.

                  Assuming “specific” is an actual issue, why is a computer not specific while “viterbi-like detector” is specific?

                3. Ned –

                  My point was to provide a response to your assertion that :

                  “The point is that patents are for new or improved machines. “

                4. And, Les, you seem to deny that a process can define the improved structure of a machine or for that matter a system.

                  Processes can define a new or improved machine or define the use of a machine to produce a new, physical result.

                  Where is your problem?

                  But when a computer defined generically, the computer is being used — no new structure is even implied. Thus the process must produce a new physical result, or be part of a larger machine so that it is improved.

                5. Ned – it is amazing that you do not see that “to process” and “to use” are the same thing, leastwise in the context of how those terms are used here.

                6. Ned – you said:

                  “But when a computer defined generically, the computer is being used — no new structure is even implied. Thus the process must produce a new physical result, or be part of a larger machine so that it is improved.”

                  First of all, new function does imply new structure, e.g., a new arrangement of electrons.

                  Second of all, even if it doesn’t, why would one have to define new “structure” IN A METHOD CLAIM?

                7. Les, how does one “name” a structure that does not exist?

                  “1. A method of determining branch metric values for branches of a trellis for a Virterbi-like detector, comprising:”

                  Now assume a Viterbi decoder was unknown. How does one limit the claim to a Viterbi decoder unless one describes what it is?

              2. 10.1.1.1.1.1.2

                But isn’t that known machine simply conventional? What is a specific machine? Is a car a specific machine? A slot machine? An iPhone? Does it matter?

                How can a known, conventional machine in any way shape or form save a claim including an abstract idea? Unless it somehow changes its operation, but then the fact that it’s a specific machine is irrelevant, right?

                1. “but”: How can a known, conventional machine in any way shape or form save a claim including an abstract idea? Unless it somehow changes its operation, but then the fact that it’s a specific machine is irrelevant, right?

                  Very insightful, s0ckie!

                  Ned is reaching for a lifeline made from a single strand of wet cotton.

                  Les, of course, is in far worse shape because he’s trying to build an entire house on that same strand of wet cotton.

                2. but,

                  Improvements to machines are patentable subject matter.

                  DO YOU GET IT?

                  MM, how can these people be so dense?

                3. Software rules are abstract Ned. I don’t have to pay attention to them. Old machines + rules = ineligible. Yawn. Appeal me.

                4. Software? Whose talking about software?

                  Software does not improve a computer. A programmed computer in the context of a larger machine or process however is a horse of a different color.

                  It is simply amazing that we can explain these things 100Million times and it still does not sink in to some of you.

                5. Ned –

                  The claims at issue here include method claims.

                  1. A method of determining branch metric values for branches of a trellis for a Virterbi-like detector, comprising:
                  selecting a branch metric function for each of the branches at a certain time index; and
                  applying each of said selected functions to a plurality of signal samples to determine the metric value corresponding to the branch for which the applied branch metric function was selected, wherein each sample corresponds to a different sampling time instant.

                  The selecting and applying are clearly intended to be done by a processor (e.g. DSP). Else, this would be a recitation of “mental step” and we would be dealing with that nonsense… hence we are talking about a method that can be implemented in software, so, in that sense we are talking about software.

                6. Ned –

                  The point was to provide a response to your assertion that :

                  “The point is that patents are for new or improved machines. “

              3. 10.1.1.1.1.1.3

                Ned –

                1) You haven’t answered why a computer is not specific but Viterbi-like detector is.

                2) You are dropping the “-like”.

                3) You are switching from the recited detector to the actually know decoder…

                4) Its a method claim. Those recite steps not devices. Field of use “limitations” don’t save an abstract claim any more.

                I think if a Viterbi-like detector were known it would have its own name, don’t you?

                Is a Viterbi detector encompassed by “Viterbi-like detector” or are Viterbi-like detectors not quite Viterbi detectors and therefore ones detector can be in one category but not both?

                1. Les, where the computer is improved, certainly the claim is eligible.

                  But where the computer is simply being used for its intended purpose, the method does not define any improvement to the computer.

                  These distinctions abound in the case law, except when reading something from the CCPA and Federal Circuit until recently.

                  The machine must be improved. A method of using a machine does not define a new machine. But even here the claim might define patentable subject matter if the process produces a new physical result.

                2. “But where the computer is simply being used for its intended purpose, the method does not define any improvement to the computer.”

                  What is the intended purpose of a computer Ned?

                  What is an improvement to a computer Ned?

                  Is Windows 10 an improvement to a computer?

                  Does installing WORD on a computer improve the word processing capabilities of the computer? I sure think so.

                  You STILL haven’t explained why Viterbi-like detector is particular and Computer is not.

      2. 10.1.2

        Two massive call outs of Ned B$ here:

        Contrast the plain and direct post below at 3.1.1 (“A programmed computer is not a particular machine.“) with Ned ‘s post here – whaaaaaat?

        Take Ned’s usual C R P of Jepson style claim format as somehow being a required claim format and exchange it for the equally vap1d – and equally wrong – Malcolm canard of the option of “objective physical structure” as somehow being more than just an option – and directly denied by none other than Prof. Crouch’s coined term of Vast Middle Ground, and take the fact that these discussion points have been provided to Ned many times, and you are left with one rather unsavory conclusion of Ned’s advocacy efforts here.

        Then, as if that were not enough, and to fold in Les’s “I am claiming a method” point, the Act of 1952 explicitly pointed out that method claims involving use of old things is “entirely” eligible.

        So even if for arguments sake we let Ned get away with his purposeful obfuscation of trying to make software the execution of software, his point STILL does not reach under a proper view of the law as written by Congress.

        1. 10.1.2.1

          “anon” the Act of 1952 explicitly pointed out that method claims involving use of old things is “entirely” eligible.

          LOLOLOLOLOLOLOL

          Run with that one.

          1. 10.1.2.1.1

            Feel free to make an actual point on that part of the Act of 1952, Malcolm.

            But before you “spin,” note in context both the quotes and my well eatablished position of 101’s other requirement of proper utility.

            Try saying something intelligent that is not a mischaracterization.

            Pretend that you have some ethics.

            1. 10.1.2.1.1.1

              note in context both the quotes and my well eatablished position of 101’s other requirement of proper utility.

              All methods aren’t patent-eligible, nor are all methods of using old apparati patent-eligible. That’s what’s “well-established”.

              Be sure to educate your clients now that you’ve been educated.

              1. 10.1.2.1.1.1.1

                Your “response” does not address my post at 10.1.2.1 – at all.

                What exactly do you think that I should “learn” from such vap1dity? Is that really your idea of “educating” someone?

                Maybe you want to try again and actually pay attention to what I write.


                1. somehow not a “common form of argument and is an informal fallacy based on giving the impression of refuting an opponent’s argument, while actually refuting an argument which was not advanced by that opponent.“…

                  Ring a bell?

              2. 10.1.2.1.1.1.2

                Here is what is “well-established”

                35 U.S. Code § 100 – Definitions
                (b) The term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

                The key is to start with the fundamentals and work outwards rather than assume the desired result and sweep the fundamentals under the rug for the benefit of a tiny, tiny, tiny number of people who simply want their philosophy installed.

                The problem you have Malcolm is that you want a different set of laws and it is YOU that is not starting with the actual fundamentals.

                The tactic that you employ is one of obfuscation as to the actual law, attempting to make what you want to be the law seem as if that were the law already, and that that law was being violated.

                It just is not so.

                I “get” you want a different law. I have NO problem with your opinion of what you want that different law to be. I have EVERY problem with your dishonest tactics of portraying “the basics.”

                Everyone should have a problem with your tactics. They are the epitome of a lack of ethics. They are the very worst of the “ends justify the means” human condition that permeates most injustices in this world. Someone ALWAYS has a different viewpoint of the desired ends – it is NEVER acceptable to have those ends justify “whatever” means.

  5. 9

    Having observed for 20 years or so the passionate Munich versus London to-and-fro debate about eligibility under the EPC, on the “claim dissection” issue “, I’m reading this thread and am reminded of the story of Good Old King Canute and the tide. Why? Because even I can see that in the USA, on the eligibility issue, the tide has turned, and is now a rip-tide in the other direction. Does any self-respecting officer of the court, in house or in private practive, seriously think that it can be turned back? Or do they know it can’t but nevertheless doggedly continue to try the patience of the court because of some higher imperative, like protecting the reputation (and financial well-being) of the guy that put them into the unfortunate position in which they all find themselves, now that the tide has turned so decisively.

    Besides, for a great many people, railing at the iniquity of it all is a great comfort.

    1. 9.1

      Not sure the point you want to make there MaxDrei, other than perhaps you once again don’t grasp the situation.

      It appears that with a description like riptide and the implication that things won’t come back that you view this as not a cycle – but the tides are a cycle – one of the most repeatable ones. Whatever the laments at low tide, you can surely count on a high tide to follow.

      As night follows day.

      As pro-patent follows anti-patent.

      1. 9.1.1

        Anon and MaxDrei,

        So far, there isn’t much of a tide. One would think that a dire state of affairs would cause a drop-off in patent filings. According to the PTO Dashboard, post Alice, Class 705 (business method) new patent applications have dropped from abut 1200 per month to about 900, but overall fillings are still running about 30,000 – 40,000 per month. The National Science Foundation provides statistics on R&D expenditures. Unfortunately, there is a lag of about two years. If R&D does not start declining, then it will be hard to make the case that a busted patent system is damaging the US economic future. Rate of start-up formation should be a useful early indicator, but I don’t have data at the moment. Perhaps someone else can chime in.

        1. 9.1.1.2

          As anon points out, after the tide goes out, it comes back in again. Any judicial over-enthusiasm, to find subject matter to be nothing significantly more than “abstract”, will surely abate, as night follows day. Then, when folks learn how to draft their patent applications in such a way that the “abstract” objection isn’t raised at all, the tide will come back in again.

          Wasn’t it Night Writer who suggested that drafters cannot do any better now than to follow European drafting style, to shoehorn their clients’ subject matter into the technological arts? Once you have filed though, it’s a bit late (under First Inventor to File) to patch the drafting style. So it will take quite some time for the pendulum to swing back.

          And so the tide ebbs and flows. You have to shut your eyes though, to not see the tide running, before your very eyes.

          1. 9.1.1.2.1

            And once the tide is in again, and the Court “feels” that scriveners are “taking too much” by hewing to the mere words of the statute, they will stick their fingers into the Wax Nose again…

            Unless we try to stop and learn from history….

          2. 9.1.1.2.2

            MD: As anon points out, after the tide goes out, it comes back in again.

            And the South is going to rise again!

            LOL

        2. 9.1.1.3

          Why would the debate about business method patents have anything to do with providing a disincentive to file patents on circuits, drugs, machines, or anything else?

          Even so, it is a wonder to me that anybody is fine anything in the business method area.

          What is killing the patent system more than the cases on eligible subject matter are IPRs.

          1. 9.1.1.3.1

            Ned,

            Based on the undiminished rate of new applications, would you say the word has not yet gotten out.

            1. 9.1.1.3.1.1

              Troubled, one can only wonder why anyone would file a business method patent today, especially after what happened to Versata.

    2. 9.2

      Max, this very case demonstrates that for patents on real and commercially valuable inventions that are ripped off the infringement damages recoveries can still be punitively very large. Far larger than taking a license back when they could have.

      No question there is a reduction on being able to sue on any patent with any claims at little cost, expecting that almost all defendants will settle to avoid high litigation costs, especially discovery. But the current flood of Alice 101 preliminary suit dismissals [on software related patents] is somewhat misleading. It should drop significantly once the backlog of such vulnerable patents is worked off. Also, as others have noted, most of the many patents shot down on Alice 101 lately could have been 103 challenged as well if IPRs had been available at the time those patent suits were initiated on their over-broad claims.
      Before IPRs, an effective 103 defense required going through an entire patent jury trial on every possible issue and then an appeal to the Fed. Cir. because granted and sustained summary judgement on 103 was infrequent.
      Note that the patent in suit here was not even challenged on a 101 basis.

      1. 9.2.1

        My reply to Paul is “awaiting moderation”. No idea why. Can the moderator release it please?

      2. 9.2.2

        Paul, it remains incredible to me that you don’t see why IPRs is so unfair to patent owners. Think about claim construction in court. In court, accused infringers routinely try to narrow the claims as best as possible in order to avoid infringement. It is on this claim construction validity is judged.

        In the PTO however, the petitioner adopts the broadest reasonable interpretation unrestrained by infringement issues, and this broadest reasonable interpretation is specifically adapted to read on the prior art. The whole point of the IPR is to kill patents unfairly, and that objective is succeeding.

        A myopic focus on some ambulance chasers who use the high cost of litigation the force settlements with no intention ever of litigating in court should not provide an excuse to almost makes it impossible for small patent owners, which are normally comprised of startups, to enforce their patents against infringers.

        You don’t hold how many small businesses and inventors have called me telling me they are abandoning a patent system solely because of IPRs.

        1. 9.2.2.1

          Ned, as you know, one of the first things one learns in any good law school is that one’s mere personal opinion that a case or statute is “unfair” is entitled to zero credit. It is irrelevant.
          One does not need to either like IPRs or consider them fair to face the reality that they exist and that many defendants are foolish and ill advised not to use them whenever possible rather than to spend millions of dollars on full blown patent litigation or a costly settlement. Nor is the huge demonstrated difference in % outcomes between a 103 S.J. motion and and IPRs open to any debate. I do not see any good reason legal blog comments should constantly confuse “wish lists” with existing realities, and confuse expressions of reality with personal opinions.

          1. 9.2.2.1.1

            So, you do not consider there to be anything at all “wrong” with stripping patent owners of legal and constitutional rights?

            1. 9.2.2.1.1.1

              And again, that is an expression of your personal view, not current law, and hence my own opinion on that question is equally irrelevant. The law would have to be changed by Congress or the Supreme Court, for which, objectively, the odds are extremely slim. Especially, the odds of having a bi-partisan patent act of Congress declared unconstitutional by the present conservative Supreme Court, a court that has now supported several new challenges to patent validity.

              1. 9.2.2.1.1.1.1

                Ned “excels” in Ned-IMHO law.

                A lot like you Paul and your blindedness about Infringer’s Rights…

      3. 9.2.3

        Paul said Note that the patent in suit here was not even challenged on a 101 basis.

        The suit was filed in 2009. I don’t know enough about litigation to know if a 101 issue could have been raised later in the lawsuit, but I’m guessing not. I think if the lawsuit was filed today then a 101 challenge would be raised because to me this claim clearly seems to be in the 101 grey area.

    3. 9.3

      MD Does any self-respecting officer of the court, in house or in private practive, seriously think that it can be turned back?

      No doubt there are such people Ned. And we also know that such people are some of the least intelligent and intellectually bankrupt attorneys and agents that ever practiced.

      Anyone who believes that the US patent system will return to the free-for-all State Street days is two nickels short of a dime. The fact that some patent attorneys are still accepting money from clients and attempting to scriven their way around the prohibitions laid down by the Supremes just shows how greedy and corrupt those patent attorneys are. But we already knew they were corrupt and greedy!

      Grifters gotta grift. If you can’t understand Prometheus v. Mayo, then you almost certainly lack the intelligence to understand what’s going on with the other patent statutes. What’s left to is to feed off the b0ttom of the b0tt0m and that’s something that plenty of patent attorneys and agents have no problem at all doing.

      1. 9.3.1

        Because those self same ACTUAL attorneys already recognize that as officers of the court, they owe their fealty NOT to the court itself, but to the constitution.

        Real attorneys recognize the oaths they have taken,
        Real attorneys recognize that the Court is one leg of the three branches – not a branch above the law, above the other two , and above the separation of powers.

        Heck even O’Malley wrote about this in Ned’s own link…

        Maybe you should be less Catcher-In-The-Rye about those Oh NOES grifters, and more knowledgeable about this law thing…. That way too you won’t be so obsessed and h@teful of the very profession you claim to be a part of….

  6. 8

    Ned –

    I’d like to see the court do a 101 analysis of the claim in the Marvell case. The phrase “for XYZ” in the pre-amble sounds like a field of use limitation and I thought that did not turn an otherwise ineligible claim into an eligible claim.

    I’m guessing that this case was filed before Alice. When the case goes back to the district court can Marvell raise the 101 issue or are they restricted to only those issues that were filed in the original complaint?

    Also, I’d like your view on the patent eligibility of claim 1 in USPN 9066049 and claim 1 in USPN 9024938. The way I see it, these claims relate to purely software products that execute on generic computers. I’m almost 99% sure that these claims are not patent eligible in your view, but I just want to make sure in case I misunderstood your position.

    Cheers,
    Genghis.

    1. 8.1

      BTW, I chose these two patents because they are from Adobe which is a typical software company. I don’t have any hidden agenda for choosing Adobe; I might as well have chosen another software company.

        1. 8.1.1.1

          Here’s one –

          1. A method, comprising: extracting script words indicative of dialogue words from provided script data; obtaining timecodes included in recorded dialogue audio data corresponding to at least a portion of the script words, the timecodes associated with recorded audio dialogue words; matching one or more script words to one or more recorded audio dialogue words, the matching comprising merging an N-gram of the script data to an N-gram of the recorded dialogue audio data; determining hard and soft alignment points based, at least in part, on the matching, the hard alignment point being indicative of a point at which the one or more recorded audio dialogue words match to the one or more script words and the soft alignment point being indicative of a point at which the one or more recorded audio dialogue words partially match to the one or more script words; defining boundaries of a sub-matrix using the hard alignment point, the sub-matrix including a block of text corresponding to the one or more recorded audio dialogue words matched to the one or more script words; determining whether an unmatched recorded audio dialogue word is to be included in time-aligned script data based, at least in part, on a threshold word rate; and generating time-aligned script data that includes the script words and their corresponding timecodes based, at least in part, on the sub-matrix.

          1. 8.1.1.1.2

            Genghis, what I see is a method of generating data: “generating time-aligned script data….”

            Fail 101.

            1. 8.1.1.1.2.1

              Genghis,

              Ned still thinks MoT IS the law. If you view his response through the Ned “version” filter of what he wants the law to be, you are only partially on the way to what the law actually is.

              He also is stuck in a Justice Story “process is a second-class type of patent eligible category” mindset. To Ned, the process category is not on equal footing with the “hard goods” categories.

              He simply does not care that he is absolutely wrong in this thinking.

        2. 8.1.1.2

          And the other one –

          1. A method, comprising: receiving an input of a three-dimensional (3-D) model configured for freeform deformation; initializing, by a computer, two or more sweep paths for the 3-D model, each of the two or more sweep paths having an associated two or more deformation parameters for applying deformations to the respective sweep path, at least one of the deformation parameters comprising a scale factor parameter that controls scale along the respective sweep path, said initializing at least two of the sweep paths comprising independently fitting all of the 3-D model to each of the at least two sweep paths; initializing, by the computer, one or more sweep path points along each of the two or more sweep paths, and two basis vectors fitted to each of the one or more sweep path points which are mutually orthogonal to the respective sweep path; computing, by the computer, 3-D coordinates for one or more 3-D model points of the 3-D model with respect to the sweep path for each of the two or more sweep paths; and iteratively performing, by the computer: obtaining input modifying a value of one of the deformation parameters for one of the two or more sweep paths; obtaining, for each sweep path, deformed basis vectors for each sweep path point along the respective sweep path; and deforming the 3-D model according to the modified value of the deformation parameter for the sweep path.

          1. 8.1.1.2.1

            Genghis, what this does is “deform[] the 3-D model.” A 3-D model is data.

            101 fail.

            1. 8.1.1.2.1.1

              Both of these Adobe patents issued in 2015, i.e., after Alice. I checked the prosecution history and no Alice 101 rejection was raised by the USPTO. So it is fair to assume that in view of the USPTO this claim is clearly eligible because if it were in the 101 grey area then I believe the USPTO definitely would have rejected it under 101.

              1. 8.1.1.2.1.1.1

                My take, Genghis, is that PTO still does not get it on 101 and that there continues to be a major management problem at the PTO.

                The guy responsible for 101, and the PTO issuing so many 101 ineligible patents, just got promoted to Commissioner. What does that tell us?

                1. Ned, it is you that does not “get” 101 (or 100(b) for that matter) – nor “get” that the thing that O’Malley warned about (in the link that YOU provided, no less) is what is going on.

      1. 8.2.1

        I read through it. If the claim was directed to a Viterbi-like detector and the claim body then explained how the metric values were determined, then I see how this is similar to Diehr. But to say that a method claim is eligible simply because you add the phrase “for XYZ” in the preamble sounds like a very flaky 101 law.

        According to you the following claim would be eligible –

        1. A method of determining a completion metric for operating a rubber-molding press for precision molded compounds, comprising:

        repetitively performing in a computer, at frequent intervals, integrations to calculate from a series of temperature determinations from sensors the Arrhenius equation for reaction time during a cure, which is ln(v)=CZ+x where v is the total required cure time,

        repetitively comparing in the computer at frequent intervals during the cure each said calculation of the total required cure time calculated with the Arrhenius equation and said elapsed time, and

        determining a completion metric automatically when a said comparison indicates completion of curing.

        (No nitpicking allowed – I spent may be 5 minutes on this claim. I basically took the Diehr claim, removed all “non-software” stuff, and added a “for XYZ” in the preamble.)

        1. 8.2.1.1

          I cleaned up the claim some more. Eligible?

          1. A method of determining a completion metric for operating a rubber-molding press for precision molded compounds, comprising:

          repetitively performing in a computer, at frequent intervals, integrations to calculate from a series of temperature determinations a total required cure time,

          repetitively comparing in the computer, at frequent intervals, the calculated total required cure time and an elapsed time, and

          determining a completion metric automatically when the elapsed time is greater than or equal to the calculated total required time.

        2. 8.2.1.2

          Genghis, because you add the phrase “for XYZ”.

          If that is what you got from the thread, then something went horribly wrong there.

          A Viterbi detector is a known machine that is improved. The Viterbi detector takes noisy analog signals and reduces that noise dramatically. A such, the Viterbi detector is a machine that does useful work.

          The detector operates using a trellis of most likely estimations. The improvement claimed adds a function from a set according to the signal. As such, the machine is improved.

          From Diehr:

          “On the other hand, when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101.”

          1. 8.2.1.2.1

            If you remove the “for a Viterbi-like detector” phrase from the claim then the claim is merely a bunch of mathematical manipulations. That is clearly not eligible in your view. So the only thing that makes this eligible in your view is the phrase “for a Viterbi-like detector,” which is a field of use limitation.

            To be clear – if the claim is rewritten so that the metric determination process is clearly within the context of a hardware-based Viterbi-like detector then I think the eligibility argument based on Diehr would be much stronger, but the way the claim is currently written, the Diehr-based eligibility argument seems pretty weak to me.

            1. 8.2.1.2.1.1

              Ned refuses one of the principle (and principled) baseline fundamentals:

              Software is equivalent to hardware and is equivalent to firmware.

              He keeps on chanting “it’s a machine,” when that “machine” is merely a software manufacture within a machine.

              I really think that he is just not allowing himself to understand what is going on because such would simply overwhelm his worldview.

              1. 8.2.1.2.1.1.1

                Software is equivalent to hardware and is equivalent to firmware.

                Yes, in the sense that the same functionality can be implemented in different ways. But, I don’t see that as being inconsistent with a law that says that you can only patent software as part of a hardware-based system that is designed to do something other than just perform computations.

                If the SCOTUS wanted to say that purely software inventions (such as the Adobe patents) were not patent eligible, they could have simply said that in Alice. However, they didn’t even use the word “software” in the Alice decision.

                1. The “something other than” falls to the other part of 101: the right type of utility.

                  Think “just numbers” for encryption.

            2. 8.2.1.2.1.2

              Genghis, “field?”

              Hardly. These are known machines. I think this is sufficient.

              1. 8.2.1.2.1.2.1

                Not “field,” I said “field of use.” E.g., a loaf of bread “for grandma Viterbi.” The phrase merely describes an intended use of the bread, but grandma Viterbi stays hungry until she actually eats the bread. I think the software needs to be more clearly embedded in the machine (and the bread needs to be more clearly embedded in grandma Viterbi’s tummy) to make a persuasive Diehr based 101 argument.

                1. Genghis, well, we do have Alappat. Its claim began:

                  “A rasterizer for converting vector list data representing sample magnitudes of an input waveform into anti-aliased pixel illumination intensity data to be displayed on a display means comprising:”

                  There is a subtle difference, given Flook, is that even important?

                  Flook,

                  “1. A method for updating the value of at least one alarm limit on at least one process variable involved in a process”

                  “An “alarm limit” is a number.” …. “Respondent’s patent application describes a method of updating alarm limits.”

                  Alappat — Rasterizer for … Flook — alarm limit … process, but no specific process.

                  The present case is much closer to Alappat.

                2. Sorry, but Flook’s “A method for updating the value …” is very close to “A method of determining branch metric values …”

                  Alappat starts off by claiming “A rasterizer …” Very different.

                  The Flook/Alappat comparison has convinced me that the CMU claim has some serious 101 issues.

  7. 7

    There is nothing in this decision to support”laches” being “potentially defunct” for inexcusable patent assertion delays of more than six years*, as here. Rather the Court relied on established facts of the defendant willfully proceeding to infringe throughout with knowledge of the invention and the patents, the D.C. judge’s careful consideration of this issue, and the inherent discretion of judges in making equitable decisions.
    *Laches only affects pre-suit or “back” damages. Six years does not differ from the statutory restriction on back damages recoveries whenever it is applicable.

  8. 6

    Think, gentlemen — do we way forward from Akamai, or do we have the makings of a second Supreme Court reversal?

    I think the Federal Circuit just held that Marvel was liable under 271(a) for domestic sales of a product that practiced the method on use, but where use occurred abroad — and cited Quanta as its authority. Of course, Quanta cited Univis Lens where the lens blanks embodied the essential novelty of the patent. Thus, it appears that the sale of a component embodying the essential novelty (even of a method claim) is an infringement under 271(a) even though the court suggested that the sale of such a component was not itself an infringement of the method. But, since one cannot be liable for an act that is not an infringement – at least according to the Supreme Court. The court’s holding here may violate Akamai.

    For the present context, we think that § 271(a) provides the basis for drawing the needed line. It states a clear definition of what conduct Congress intended to reach—making or using or selling in the United States or importing into the United States, even if one or more of those activities also occur abroad. Where a physical product is being employed to measure damages for the infringing use of patented methods, we conclude, territoriality is satisfied when and only when any one of those domestic actions for that unit (e.g., sale) is proved to be present, even if others of the listed activities for that unit (e.g., making, using) take place abroad. Significantly, once one extends the extraterritoriality principle to confining how damages are calculated, it makes no sense to insist that the action respecting the product being used for measurement itself be an infringing action. Thus, here the claim is a method claim, but the damages measuring product practices the method in its normal intended use, cf. Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008) (applying exhaustion to sale of unit that sufficiently embodies a method claim); and the
    hypothetical negotiation would have employed the number of units sold to measure the value of the method’s domestic use (before production and after), as discussed above. In these circumstances, the inquiry is whether any of the § 271(a)-listed activities with respect to that product occur domestically.”

    Slip at *37-38

    If the sale of chip embodying the method is not an infringement, then there can be no liability. Therefor, this case must stand for the proposition that a the sale of a component embodying the method is an infringement under 271(a).

    If not, the Supreme Court is going to reverse once again.

    As Cato said for so many years, “Carthage must be destroyed.” That is my feeling about BMC Resources.

  9. 5

    The remand here needs to settle another legal issue. The defendant’s activities here were in CA. So should not the Court indicated determination on this remand of whether or not an infringing commercial sale occurred [so as to add even products made and maintained outside of the U.S. in infringement damages calculations?] be governed by CA contract law? Did not the Sup. Ct. Erie v. Tomkins decision end federal courts applying their own views of contract law some 76 years ago? Even though some Fed. Cir. judges still ignore this fundamental issue? E.g., Gellman v. Telular Corp. (Fed. Cir. 2011), and Board of Trustees of the Leland Stanford Jr. University v. Roche Molecular Systems, Inc., (Fed. Cir. 2009).

    1. 5.1

      Paul, I don’t think there is any substantial question that there was a contract. The question really is one of patent law, whether the US sale of a product embodying a patented method is an infringement under 271(a) where practice of the method occurs abroad. The court wanted to sidestep this issue, but I think it cannot.

      1. 5.1.1

        They did not just side step that issue, they suggested that even if merely the contract for sale was in the U.S. that it could be an infringement.

    2. 5.2

      Your reference to Roche is seriously flawed.

      That “infringer’s rights” bias is showing again

  10. 4

    The original verdict, which included damages for all of the chips even the ones that were manufactured overseas and never imported into the US, seems harsh.

  11. 3

    MM, can you believe the applicant in In re Karpf, 2014-1773 actually argued to the panel today that his claims passed 101, at least in part, because his claims were directed to an “article of manufacture,” to wit, a programmed computer.

    The panel reacted with derision, stating that Alice had overruled all prior cases that had based eligibility nominally being directed to a programmed computer.

    Oral argument: link to oralarguments.cafc.uscourts.gov

    1. 3.1

      Image the nerve of some people attempting to rely on logic and reason in the age of through-the-looking-glass Alice laced pronouncements.

      Not surprising how the Board reacted with “off with his head.”

      But seriously…. can a machine be an article of manufacture?

      Is it one of those, all machines are articles of manufacture, but not all articles of manufacture are machines type thingies?

        1. 3.1.1.1

          Alappat admits that claim 15 would read on a general purpose computer programmed to carry out the claimed invention, but argues that this alone also does not justify holding claim 15 unpatentable as directed to nonstatutory subject matter. We agree. We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software. In re Freeman, 573 F.2d 1237, 1247 n. 11, 197 USPQ 464, 472 n. 11 (CCPA 1978); In re Noll, 545 F.2d 141, 148, 191 USPQ 721, 726 (CCPA 1976); In re Prater, 415 F.2d at 1403 n. 29, 162 USPQ at 549-50 n. 29.

          Under the Board majority’s reasoning, a programmed general purpose computer could never be viewed as patentable subject matter under § 101. This reasoning is without basis in the law. The Supreme Court has never held that a programmed computer may never be entitled to patent protection. Indeed, the Benson court specifically stated that its decision therein did not preclude “a patent for any program servicing a computer.” Benson, 409 U.S. at 71, 93 S.Ct. at 257. Consequently, a computer operating pursuant to software may represent patentable subject matter, provided, of course, that the claimed subject matter meets all of the other requirements of Title 35. In any case, a computer, like a rasterizer, is apparatus not mathematics.

          1. 3.1.1.1.1

            Thanks, yee haw for citing to the dicta in Alappat that has been overruled instead of citing to its holding.

            1. 3.1.1.1.1.1

              Because Ned says so, dabnit Gumby.

              Never mind the fact that I long ago explained to Ned why such was in fact a holding of the case (the point alone would have reversed the decision).

              Ned’s lack of inte11ectual honesty is not challenged in his version of “No tr011s**” echo chamber nirvana.

              **defined as anyone that does not align with Ned’s curse-ades.

              1. 3.1.1.1.1.1.1

                Because Ned says so,

                Uh, no. Because the remaining judges on the CAFC aren’t as willing to make complete f00ls out of themselves to protect a “legacy” that isn’t worth owning.

                You should spend some time listening to these oral arguments, “anon”. The Rule 36 tanking of a lot of these 101 cases are unfortunate, in a way, because folks who don’t pay attention miss just how little credit judges give to the desperate junk patentees you love so much. On the other hand, it’s good to see that the CAFC doesn’t even believe it’s worth their time to re-broadcast the patentee’s d.o.a. arguments for them.

                1. Let me know when you understand simple set theory and when these Supreme-brow-beaten judges are elected to the legislature.

                  What a chump.

          2. 3.1.1.1.2

            yee haw

            These are the same folks who cite Diehr for the proposition that “you can’t dissect claims in a 101 analysis.” Desperate, ign0rant people.

        2. 3.1.1.2

          What is the difference between a machine and a particular machine?

          The programed computer with which I am typing this seems like a particular machine to me. I mean, there are many like it, but this particular one is mine.

          Anyway, 101 say machine, not particular machine. It also say improvement thereof…

          1. 3.1.1.2.1

            Les, a rasterizer (Alappat) is a particular machine — at least insofar as it is a known machine.

            A generic computer is not a particular machine.

            1. 3.1.1.2.1.1

              “A generic computer is not a particular machine.”

              Of course it is. For example, it is particular compared to a toaster.

              Moreover, when you program a “generic computer” to rasterize image date it becomes a rasterizer, which even you acknowledge is a particular machine!

              1. 3.1.1.2.1.1.1

                Give up now.

                He and MM believe in pseudo-science. They believe that non-physical changes to a computer cause it to perform operations. They don’t acknowledge that software can cause real physical changes to not only the computer itself (even if at least in memory), but how the computer actually behaves in the real world. As I’ve said before, it’s worse than believing in magic.

                1. Installing a program changes a computer in the same manner as entering a cooking schedule changes a microwave oven.

                2. They don’t acknowledge that software can cause real physical changes to not only the computer itself (even if at least in memory),

                  Ah, Bluto, always ready with the quick and blatant l i e. After all, what else does he have? He lacks the intelligence to understand that the issue is not whether a magical machine with “new” functionality is has “real” physical changes. The issue is that those “real” physical changes are never recited in the patent claim. If the “real” physical changes were recited in the patent claim then we wouldn’t be dealing with abstractions.

                  This is kid’s stuff. But Bluto’s just a five year old scribbling “you can’t dissect claims!” on the kitchen wall so we’ll forgive him this time.

                3. software can cause real physical changes to not only the computer itself (even if at least in memory), but how the computer actually behaves

                  Writing on a blank of piece of paper causes real physical changes to the paper and can dramatically affect the utility of the paper.

                  So. Effing. What.

                  Grow up, Bluto. And please grow up fast because this is getting really tiresome.

                4. Is that like lines on a measuring cup, or numbers on a hatband, Malcolm?

                  You know those non-software thingies that wreck your “argument”…

                  Still pretending that you don’t understand the legal terrain (when you have volunteered an admission against interests otherwise)…?

                  What a chump.

                5. Installing a program changes a computer in the same manner as entering a cooking schedule changes a microwave oven.

                  Consider a canal with a lock system. When the lock is closed, we have a dam. When the lock is open, we have an unrestricted waterway. They are different structures with different functions.

                  There is a difference between a mousetrap that is loaded and ready to activate and an unloaded mousetrap. In their current states one is capable of trapping a mouse and one is not. I can draft two claims — respectively directed to each state that does not cover the other state. However, I can also draft a claim that covers both states. I can do the same using your microwave example.

                  These are just a couple of examples of machines that are capable of being configured into multiple, different states. The hallmark of a programmable computer is its ability to be programmed into an untold number of different states — with each state representing a different machine and achieving different functionality.

                6. And somehow, all future improvements are “already in there.”

                  Yet, reality intrudes. Improvements to the machine with the addition of the machine component and manufacture in its own right of software creates new capabilities all the time.

                  People are even (gasp) paid to create these new capabilities that machines just did not have.

                  As I have slammed Count Dobu before, the proper analogy is not a device with settings, debating on which setting to use, but rather on a device that does not have settings, but could have settings added to it.

                  The inte11ectually honest recognize the lesson of the Grand Hall experiment. Those who wish to merely push a philosophical “not want” do not.

                  It’s that simple.

                7. “anon” Improvements to the machine with the addition of the machine component

                  Sure, “components” like “public” or “previously viewed” or “copyrightable” or “legally binding” or “medical”.

                  Helpful hint for you “anon”: find a new script.

                8. In response to Think:

                  Once the lock system is built, it is a known machine, with known inherent states (open or closed). Future “improvements” to that system will need to do more than just recite a canal lock in one of its known states.

                  Mousetrap – future “improvements” don’t get to just cite the mousetrap in one of its previously known, inherent states.

                  Your mistake is thinking that a computer can be programmed “into an untold number of different states”. The number of states is fixed when the computer is assembled. It has a fixed number of memory locations, each of which can contain only one of a fixed number of values at a given time. If the “improvement” or “new functionality” from programming the computer is just the abstract assignment of meaning to those locations, you have not created any new “states” for the computer, and you’re in the realm of the abstract.

                  In response to Anon:

                  Again, software is not a manufacture. Allvoice v. Microsoft. “[t]o qualify as a manufacture, the invention must be a tangible article that is given a new form, quality, property, or combination through man-made or artificial means.” [emphasis added].

                  People get paid to use ovens, too. So what?

                  As I have slammed Count Dobu before…“. Grow up already, Anonileo.

                  the proper analogy is not a device with settings, debating on which setting to use…
                  You are so fixated on your short script that you don’t even recognize when it doesn’t apply. The comment was in response to Bluto’s “software can cause real physical changes”, and as such, the button-pushing microwave analogy is entirely analogous to inputting numbers into computer memory.

                  Grand Hall
                  Which has nothing to do with how software physically affects the computer. But I guess you have to stick to your script.

                9. Count Dobu,

                  You are flawed beyond belief.

                  You want to delve into magic for having new capabilities somehow “divorced” from physical change…

                  You want to count possible future alignments as actual alignments (see my big box of electrons, protons, and neutrons which blows your “logic” away…

                  Software IS a manufacture – I have distinguished your attempt to use Allvoice – several times now… (Tell me again about your copyright for that “software in your mind”)…

                  I not the one with the short script and bad use of analogies – I corrected your bad use (wake up son)…

                  You don’t “get” the Grand Hall experiment – at all. Once again, the new capabilities are not grounded in “magic,” and you very much add components to a computer with the addition of software.

                10. Future “improvements” to that system will need to do more than just recite a canal lock in one of its known states.
                  How about future improvements will recite a previously unknown state? Perhaps an intermediate state in which instead of having the lock doors fold outwards, they can slide up and down? Regardless, I’m not seeing the point you are trying to make.

                  Mousetrap – future “improvements” don’t get to just cite the mousetrap in one of its previously known, inherent states
                  Known? In the context of computer systems, what are known and what are unknown states? BTW — if it was “previously known,” it isn’t patentable.

                  Your mistake is thinking that a computer can be programmed “into an untold number of different states”. The number of states is fixed when the computer is assembled.
                  Perhaps, can you tell me the number of states your computer is capable of being fixed at? Then again, when the universe was created, I’m sure there was a number of fixed states of compositions of matter. That still doesn’t prevent us from allowing new compositions of matter from being patented.

                  If the “improvement” or “new functionality” from programming the computer is just the abstract assignment of meaning to those locations, you have not created any new “states” for the computer, and you’re in the realm of the abstract.
                  Try to get away from abstract descriptions and provide something a little more tangible in your assertion. What do you mean by “abstract assignment of meaning to those locations”?

                  software is not a manufacture
                  You need to read the decision. The court states “the disputed claims merely claim software instructions without any hardware limitations.” Anon (and I) were talking about machines – not software instructions per se.

                11. Anonileo,

                  You claim to have no script, but here we are with “software is a component and manufacture, my box of particles, copyrighting software in you mind, etc. etc.”. I guess we can add claiming to have no script to your script.

                  Your silly box of particles has an infinite number of configurations (analog). A computer has only finite configurations (digital). I keep explaining this to you, but you refuse to get it.

                  Your attempt to distinguish Allvoice was attempting to cover your equivocation with a difference without a distinction, and you keep wanting patents on things that exist “only in your mind”, so your copyright protestations are a non-starter.

                  I’m wide awake, and your corrections are lacking, “dad”.

                  I get the attempted, but woefully ignorant, point of the Grand Hall experiment. This computer without software can’t do anything . . . this computer with software can do something! Presto! They’re not the same machine any more!
                  [sarcasm] Just like an empty paint sprayer and a filled paint sprayer aren’t the same machine, or a programmed microwave and an unplugged microwave, etc. [/sarcasm]

                12. A quote from someone else has been caught in the filter…

                  My witless count, I suggest then that you travel to the source and read comment 3: link to ipwatchdog.com

                  Let me know if you have trouble recognizing the MathS philosophy that you self-immolated upon last we exchanged pleasantries.

                13. Just like an empty paint sprayer and a filled paint sprayer aren’t the same machine, or a programmed microwave and an unplugged microwave, etc
                  They are not. A gun without bullets is a scary paperweight … a gun with bullets is a deadly weapon at distance. A gun with the safety depressed is not the same machine as the gun with the safety off. A sealed envelope is not the same manufacture as an envelope that has been opened with a letter opener. One thing that separates most “mechanical devices” from programmable computers is the number of states each are capable of being configured into. I’ve discussed mechanical devices to show that what can be said about computers can also be said about these mechanical devices.
                  Your attempt to distinguish Allvoice was attempting to cover your equivocation with a difference without a distinction
                  Try to make a cogent argument next time. The point still remains, we are talking about machines. You cited case law to support one of your points, but your cited case law is directed to something that was explicitly stated as not being part of the machine.
                  As an aside, “computer instructions” – either written on a piece of paper or envisioned in one’s brain is just a representation of what is contained in the computer. While the representation and the modification to the computer may both be referred to as “software,” they are not the same, and the law doesn’t treat them the same.

                14. Think,

                  You provided the canal lock as an example of a system with multiple known states, where the states constitute individual inventions. (At least, that was my understanding of your presentation.) The point I was trying to make was that a claim to an “improved” canal lock, where the “improvement” is one of it’s configurable states, is not an invention.

                  Computer system known states: with respect to the topic being discussed (Bluto’s comment on how loading software physically changes memory contents), byte memory address zero could store one of 256 different numeric values. Memory addres two, the same. I’ll stop there, hoping the point is understood.

                  if it was ‘previously known,’ it isn’t patentable.” Whole-hearted agreement from me, Think.

                  Number of possible states for my computer: Considering programs and data loaded into 8GB main memory, 256 possible values per byte, about 2.2 trillion states. More if you want to consider run-time interaction with secondary storage.

                  Finite number of fixed states for combinations of matter: I’m not so convinced of that. Is there a maximum possible length for a polymer chain? Let’s throw in dark matter, exotic particles, the infinitissimally small universe of the Big Bang . . . I just don’t know.

                  “abstract assignment of meaning” – e.g., these memory locations store a number that I decided represents the balance of a shadow account. Those memory locations store a number that represents a randomly chosen Bingo card number. These assignments do not affect how the computer operates. It will step through the program located at the memory address contained in the instruction counter, regardless of how we think of the data it’s processing.

                  I did read the Allvoice decision. Allvoice tried to argue that software must be in a physical, machine-readable state to exist. The court rejected that argument, which goes against Anon’s oft-repeated mantra that software is a manufacture. I will grant that a medium containing software will usually be a manufacture.

                15. Anon,

                  A human with a pile of rocks can meet the definition of a von Neumann machine. Good luck getting your patent.

                  Witless? Self-immolated? Good lord, man, do you try to be contemptible? Or does it just come naturally?

                16. Think,

                  I suspect very few people would consider preparing a machine for use, in the manner in which it is intended to be prepared and used, to be creating a new machine. I find this position extreme, unsupportable, and not really worth further discussion. It’s been lively, though, and I appreciate your maintaining a respectful demeanor.

                  Regarding “try to make a cogent argument next time”: Sorry if the brief version lacks cogency, but I was continuing an earlier argument between anon and me, and the comment was addressed to anon. I didn’t include as much elaboration as in the original discussion.

                  As an aside, ‘computer instructions’ – either written on a piece of paper or envisioned in one’s brain is just a representation of what is contained in the computer“. That’s just completely backwards. The computer’s contents are just a representation of what was envisioned in the programmer’s brain.

                17. Dobu,

                  It merely comes down to your Belieb system that software per se is not patent eligible.

                  You can freely have that opinion. But that opinion just is not in accord with the law as written by Congress. Nor is it supported by the facts that you bring into this battle. Your desire to stress “unlimited” from an “analogue” beginning state is simply factually flawed. The computer baseline simply is NOT the static set that you think it is, and even if the “toy box” were limited, such is NOT the same as saying all future configurations are “already in there.” You FAIL for exactly the same logic that I make fun of with my big box of electrons, protons, and neutrons – until you can come to grips with WHY you fail, you will not be able to understand just why you are so very wrong on this battlefield.

                  You need to understand the terrain.

                  You need to understand WHY you need to understand the terrain.

                  You are not even close to being able to have an informed and inte11igent discussion on the merits here.

                18. I suspect very few people would consider preparing a machine for use, in the manner in which it is intended to be prepared and used, to be creating a new machine.
                  I should refer you to a comment Dennis made some time ago, when he asked the question to his young daughter. Her answer was something to the effect that “yes … its different, it has a new brain.” It is a very easy concept to get.

                  in the manner in which it is intended to be prepared and used
                  I can make a new, patentable machine out of an erector set — the fact that the erector set is intended to be put together in so many ways does not negate that there can be some ways that are new and non obvious and hence patentable<– BTW … that is the standard.

                  I find this position extreme, unsupportable, and not really worth further discussion.
                  You are the one that has the position that is on the outside looking in. If you want to the change that you are advocating for, you had better be prepared to make your case.

                  That’s just completely backwards. The computer’s contents are just a representation of what was envisioned in the programmer’s brain.
                  It has to be one or the other? Regardless, one is an abstract the other is not — they are not the same (the point you seemingly overlooked)

                19. Anon,

                  Your desperation to continue patenting the abstract blinds you to the fact that a computer does nothing but copy numbers between memory locations, optionally applying mathematical operations to the copied numbers, based on an ordered list of instructions from a limited instruction set. That’s it. That’s the “machine”.

                  Since we’ve reached the “everybody who disagrees with me FAILS” part of your script, I expect we’ll see the usual “You FAIL! You FAIL! You FAIL!” loop from this point.

                20. Think,

                  I’ll grant that it is sometimes charming to view the world through a child’s eyes, but I do not find the argument “This child’s view aligns with mine, so it must be the right one” to be a very convincing argument.

                  Yes, you can build tangible, patentable things with erector sets. I hope your claim doesn’t start with “An erector set, configured to ….” I don’t see that as likely to get much traction.

                  If you want … the change that you are advocating for, you had better be prepared to make your case.
                  I am not interested in arguing over that which I believe any reasonable person would not contest. (E.g., known paint sprayer + known paint = new machine.) If we can’t agree at that level, further discussion is likely pointless. (Yet, I keep replying. Call me stubborn.)

                  one is abstract, the other is not – they are not the same ….
                  They are both abstract (and not the same), unless you’re taking an overly-literal interpretation of “the computer’s contents”. I was referring to the compiled, executable data (which is abstract), not the hardware itself, nor electrical charges or magnetic domain alignments.

                21. Dobu,

                  No desperation on my side – you’ve been failing all along and you have done nothing to change that.

                  You STILL don’t grasp the terrain of law (or for that matter, the Tech either).

                  The world yet turns.

                22. nor electrical charges or magnetic domain alignments.

                  How convenient.

                  Wrong, but convenient.

                  On this terrain, that loses you the battle.

                  You might enjoy reading a little Sun Tzu.

                23. Anonileo,

                  And, there it is, as predicted.

                  You’re so eager to get to the “You FAIL! I Win! Nobody knows as much as me!” ending of your self-aggrandizing short script that you don’t even remember what the discussion was about.

                24. Except for the fact that I showed you a snippet…

                  Gee Dobu, looks like you are trying that tired Malcolm thingie of AaccuseOthersOfThatWhichMalcomDoes…

                  (hint: it doesnt work for him either)

        3. 3.1.1.3

          A programmed computer is not a particular machine.”

          See in re Nazomi.

          Oops.

          Also see the Grand Hall Experiment.

          See Ned run away.

          1. 3.1.1.3.1

            see the Grand Hall Experiment.

            See Ned run away.

            LOL. We’re right here “anon”. Like pretty much everyone else, nobody really cares what you think about anything because you don’t make much sense. Ever.

            Please take a listen to the oral arguments we’ve been discussing. These aren’t the first oral arguments where the CAFC heard your b.s. and responded with outright derision or bored, irritated silence.

            1. 3.1.1.3.1.1

              I’ve recently left the patent field to pursue a different legal career. I will, however, remain interested in the topic and will follow these boards.

              I just want to say thank you, MM, for making common sense arguments against the very worst patents.

              And just a reminder to everyone. Pretty much nobody outside of the patent prosecution field (and some of their clients) thinks information processing/software belongs within the patent system.

              Instead, most people are (rightly) skeptical of patents entirely, but can be persuaded that patents can be a useful social tool when narrowly applied to advances in the technological arts.

      1. 3.1.2

        Les: all machines are articles of manufacture, but not all articles of manufacture are machines type thingies?

        It’s 2015 and Les still hasn’t figured out that just because something is claimed as a “manufacture”, it isn’t automatically eligible for patenting.

        Wow.

        1. 3.1.2.1

          I think that he is pursuing the legal reasoning that legitimately flows from the words of Congress.

          funny how some people kind of try to reflect “America’s leading patent law source” to its actual constitutionally authorized source.

          Insert [shrug] here.

    2. 3.2

      Ned: can you believe the applicant in In re Karpf, 2014-1773 actually argued to the panel today that his claims passed 101, at least in part, because his claims were directed to an “article of manufacture,” to wit, a programmed computer.

      The panel reacted with derision, stating that Alice had overruled all prior cases that had based eligibility nominally being directed to a programmed computer.

      Yes, I can believe it because the exact same thing — the argument and the response — happened yesterday.

      It’s kinda funny to watch patentees grab their talking points from Big Q’s echo chamber and run from them … straight into a brick wall.

      But they’re super serious people! They know what the “actual law” is because some guy who’s wrong about everything told him all about in the comments section of a blog that is basically one giant advertisement for the “services” of the self-absorbed tongue-wagging shill who runs it.

  12. 2

    Regarding willfulness, this is interesting on page 28: “On that basis we have repeatedly assessed objective reasonableness of a defense without requiring that the infringer had the defense in mind before the litigation.”

    1. 2.1

      Troubled, I agree that allowing trial defenses to excuse willful pirating all but erases willful infringement from the law.

      1. 2.1.1

        Ned,

        This is a less than satisfactory state of affairs and Judge O’Malley agrees. The statement relies on Halo Electronics v. Pulse Electronics for authority. There, Halo argued that Pulse did not rely on its obviousness defense until after the lawsuit was filed. Pulse responded that its engineers were of the opinion that the Halo patents were invalid based on prior art Pulse products. Nonetheless, the lack of willfulness seems to have been based on a reasonable obviousness argument presented at trial. The instant case is more extreme. At page 26: “Indeed, the weakness of Marvell’s responses tends to confirm the strength of the evidence on what Marvell knew and should have known.” Again a fortuitous discovery of analogous prior by the time of trial saved them.

        Meanwhile, Halo’s petition for a rehearing en banc was denied on March 23, 2015. “The only enhancement-related question that Halo presents for en banc review is whether the objective reasonableness of Pulse’s invalidity position must be judged only on the basis of Pulse’s beliefs before the infringement took place.” The reason for the denial seems to be that en banc review is rare and the time is not ripe.

        Judge O’Malley, joined by Judge Hughes, dissented. Arguing that an award of attorney’s fees under section 285 is analogous to willful infringement awards under section 284, she says the Supreme Court in Octane Fitness rejected the CAFC’s rigid approach to section 285 and the same should apply to section 284. So someday, infringers may not be able to dig up prior art at the time of trail and defeat the award.

  13. 1

    So, why isn’t this bad boy directed to an abstract idea? Seems kinda mathy to me…. kinda selecty and applyy…

    1. A method of determining branch metric values for branches of a trellis for a Virterbi-like detector, comprising:
    selecting a branch metric function for each of the branches at a certain time index; and
    applying each of said selected functions to a plurality of signal samples to determine the metric value corresponding to the branch for which the applied branch metric function was selected, wherein each sample corresponds to a different sampling time instant.

    link to google.com

        1. 1.1.2.1

          wtf, are you kidding me? You don’t know the law on this. Really?

          This post has to be a joke, wtf.

          1. 1.1.2.1.1

            Yawn. Abstract idea of picking a function and applying it. Type of function irrelevant. Limited to field of use. Appeal me.

            See how easy it is to be an Examiner nowadays?

            1. 1.1.2.1.1.1

              I want to say this as politely as I can.

              Alappat.

              Specific machine.

              Alappat is still good law. What was the specific machine in Alappat?

          2. 1.1.2.1.3

            Ned – Of which post do you keep asking or asserting about its jokiness?

            If you mean my post (1.0) then no, its not a joke. That is claim 1 of one of the two patents at issue and I would like to know why it wasn’t challenged or invalidated under 101. Not, of course, that I think it should be. But under the through the looking glass current environment, why wasn’t it?

            1. 1.1.2.1.3.1

              Les, I answered your 1.0 question at 1.1.

              I consider wtf’s posts to be absurd.

              I do not address the posts of the troll.

              1. 1.1.2.1.3.1.1

                You think the phrase “for a Virterbi-like detector” in the preamble makes it patent eligible? If they left that phrase out then it becomes abstract?

                Why?

                ….by the way, you know a Virterbi detector is an algorithm right?

                link to homepages.cae.wisc.edu

                1. Les, Virterbi detectors are known machines. They are used in disk drives, in cell phones, in space communications, and in many different noisy communication applications.

                  If the phrase was left out, then there is no specific machine and thus no application. See that recent Fed. Claims case involving “sensors.”

                  Afterbirth detectors operate on the principles of the Virterbi algorithm. But they are specific machines.

                2. So now I can just tag a known non-general purpose computer to an abstract idea and I’m OK? That’s it?

                3. Its an algorithm Ned. An algorithm run on a processor or DSP to be sure, But a Virterbi detector is an algorithm run on a general purpose micro-processor or general purpose digital signal processor.

                4. Why isn’t “for a Virterbi-like detector” just a field of use that does not make an abstract idea patent eligible?

                5. trolo, tag?

                  Hardly.

                  Rasterizers are known components of a graphics unit.

                  Virterbi detectors are known components of signal processors in many different applications.

                  “Tags” implies that the computer is generic and not a known component of a larger machine or process.

                6. Les, I am being humbled here by the depth of your personal experience with Virterbi decoders.

                  You do recall I that I was chief patent counsel of the largest disk drive company in the world and that I know what I am talking about from direct knowledge. These decoders are placed in read channels and must real-time convert very noisy analog signal into digital signals. That they operate on math is almost beside the point. They are known machines.

                7. What are the components of those “machines” Ned?

                  Can they be made with generic digital signal processors and programming?

                  youbetcha.

                  How else could the claimed method be “for” something “like” them?

                8. Never mind the parts list Ned. I found one at the PTO:

                  link to google.com

                  10. A Viterbi detector for a partial response class IV, maximum likelihood data channel comprising:
                  a data sample input for receiving digital data samples from a source thereof, the data samples taken of data which has been coded in a predetermined data code format and which has been passed through a data degrading channel,
                  an odd interleave Viterbi decoder, and an even interleave Viterbi decoder, each decoder being clocked at a rate one half of a data sample clocking rate and including:
                  delay means for delaying the data samples received at the data sample input to produce delayed data samples,
                  delay selector means for controlling an output of the delay means in accordance with a feedback control bit value,
                  adder means for combining data samples from the data sample input with the delayed data samples from the delay means to produce a sum,
                  a threshold input for receiving programmable positive and negative data threshold values,
                  threshold selector means for selectively putting out the positive and negative data threshold values in accordance with a sign bit control value,
                  comparator means for comparing the sum with a selected one of the threshold values and for putting out a logical value based upon comparison thereof,
                  Viterbi decision state logic means for determining the sign bit control value, the feedback control bit value, and two raw data bits for each incoming data sample,
                  memory path means for decoding a sequence of consecutive values of said two raw data bits per incoming data sample in accordance with a predetermined maximum likelihood trellis decode logic table related to said predetermined data code format and for thereupon putting out a sequence of detected code bits for said interleave, the Viterbi detector further including combiner means for combining the outputs from the odd interleave Viterbi decoder and the even interleave Viterbi decoder, the combiner means having an output clocked at the data sample clocking rate.

                  sounds like a programmed processor to me.

                9. Les, are you ignoring the fact these units are actual, physical components of larger machines such as disk drives or cell phones?

                  Rasterizer — a known component of a graphics unit for a display.

                  Virtebi detector — a known component of a signal processor that receives noisy analog signals and converts them into digital signals.

                10. No Ned, I’m not ignoring that.

                  Are you ignoring the fact that they are all made by programming generic computers (generic off the shelf processors in the case of the detectors, generic PCs in the case of photocopiers and printers and rasterizers thereof)?

                11. Les, a viterbi detector is a specific, known machine. It can be implemented with circuits, with ASICS, with FPGAs, with programmed DSPs running “firmware.” Perhaps one could program one’s laptop to work in the context of debugging.

                  It make no fricken difference HOW a known machine or component is constructed so long as it is a KNOWN machine.

                  From a 101 view, the claims improve a known machine. They pass 101.

                  These are not claims to the use of a known computer to run calculations that are not used to improve a larger machine or process.

                  I frankly am amazed that we are even discussing these distinctions anymore. But amazed we are because some I D I O T actually made such an argument today at the Federal Circuit and was laughed at by the court.

                12. with circuits, with ASICS, with FPGAs, with programmed DSPs running “firmware.”

                  You quite selectively left one out mr high and mighty B$er.

    1. 1.2

      Seems like these claims (and some others), boil down to:

      A method of determining ???, comprising using the scientific method to determine ???. I’m not seeing the inventiveness generally.

      1. 1.2.1

        I’m educated guessing that the inventiveness is in:

        selecting a branch metric function for each of the branches at a certain time index; and
        applying each of said selected functions to a plurality of signal samples to determine the metric value corresponding to the branch for which the applied branch metric function was selected, wherein each sample corresponds to a different sampling time instant.

        1. 1.2.1.1

          B-b-b-but time is an ineligible thing, and time indexes and time instants are only abstractions…

          How much do those things weigh?

          /off sardonic bemusement

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