By Dennis Crouch
On summary judgment, Judge Guilford (C.D.Cal) found Mortgage Grader’s asserted patents[1] ineligible under 35 U.S.C. § 101.[2] On appeal, the Federal Circuit has affirmed this substantive holding as well as the district court’s procedural decision to allow the defendant (First Choice) to re-add its Section 101 contention after first dropping it.[3] The appellate decision here was authored by Chief Judge Stark (D.Del) who was sitting by designation. Judges O’Malley and Taranto joined the unanimous opinion.
A patent is not permitted to effectively claim an abstract idea. In Mayo/Alice, the Supreme Court outlined a two-step process for determining whether this exception applies to Section 101’s otherwise broad eligibility principles: (1) is the claim at issue directed to a patent-ineligible concept and (2) if so, does the claim include an “inventive concept … sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.”[4]
Here, the district court found that the claims-at-issue were generally directed to “anonymous loan shopping” which is an unpatentable abstract idea.[5] According to the court and apart from the computerization claim limits, the “series of steps covered by the asserted claims—borrower applies for a loan, a third party calculates the borrower’s credit grading, lenders provide loan pricing information to the third party based on the borrower’s credit grading, and only thereafter (at the election of the borrower) the borrower discloses its identity to a lender—could all be performed by humans without a computer.” These human-mind-potentials cannot be claimed in the abstract. In step two of Mayo/Alice, the court considered the computerization elements of the claims, but found only “generic computer components such as an ‘interface,’ ‘network,’ and ‘database.’ These generic computer components do not satisfy the inventive concept requirement.”
In the appeal, the patentee argued a factual dispute regarding the history of loan processing in an attempt to show that the process here was not “old.” The appellate panel, however, found the testimony essentially irrelevant to the legal question of whether claim is directed to an abstract idea.
====
On the procedural point, the defendant had dropped its eligibility defense from its contentions. However, following the Supreme Court’s Alice decision added the contention back into place – but well after the court appointed deadline. On appeal, the appellate panel confirmed that the district court did not abuse its discretion in allowing that procedural anomaly because of the significance of the decision:
In Alice, the Supreme Court held that “merely requiring generic computer implementation fails to transform [an] abstract idea into a patent-eligible invention.” 134 S. Ct. at 2352. We recognized the significance of Alice in buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1354–55 (Fed. Cir. 2014), in which we stated that Alice “made clear that a claim directed to an abstract idea does not move into § 101 eligibility territory by merely requiring generic computer implementation” (internal quotation marks omitted). The impact of Alice is also illustrated by our decision in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014) (“Ultramercial III”). Ultramercial had sued WildTangent for infringement of U.S. Patent No. 7,346,545, a patent directed to allowing consumers to view copyrighted media products on the Internet at no cost in exchange for viewing an advertisement. See id. at 712. When the case was first before us, in 2011, we reversed the district court’s grant of WildTangent’s Rule 12(b)(6) motion to dismiss, holding that “as a practical application of the general concept of advertising as currency and an improvement to prior art technology, the claimed invention is not so manifestly abstract as to override the statutory language of § 101.” Ultramercial, LLC v. Hulu, LLC, 657 F.3d 1323, 1330 (Fed. Cir. 2011) (“Ultramercial I”) (internal quotation marks omitted). The Supreme Court granted WildTangent’s petition for certiorari, vacated our order, and remanded for further consideration in light of Mayo. Ultramercial III, 772 F.3d at 713. On remand, we again reversed the district court, holding yet again that the claims were patent-eligible. Ultramercial v. Hulu, 722 F.3d 1335, 1354 (Fed. Cir. 2013) (“Ultramercial II”). Once more, the Supreme Court granted WildTangent’s petition for certiorari, vacated our order, and remanded, this time for further consideration in light of Alice. Id. On this further remand, with the “added benefit of the Supreme Court’s reasoning in Alice,” we affirmed the district court and found the claims to be not patent-eligible. Id. Our conclusion was expressly based on Alice’s holding that “adding a computer to otherwise conventional steps does not make an invention patent-eligible.” Id. at 713, 716–17.
Ultramercial III demonstrates that a § 101 defense previously lacking in merit may be meritorious after Alice. This scenario is most likely to occur with respect to patent claims that involve implementations of economic arrangements using generic computer technology, as the claims do here. For example, the asserted claims of the ’694 patent require use of a “computer system” or “computer network” for facilitating anonymous loan shopping and the asserted claim of the ’728 patent requires “programmatically generating” and uses a “network” for shopping for loans. In this context, it was not an abuse of discretion to allow Appellees to inject a § 101 defense into the case after Alice.
= = = = =
[1] U.S. Patent Nos. 7,366,694 (“’694 patent”) and 7,680,728 (“’728 patent”).
[2] Mortgage Grader, Inc. v. Costco Wholesale Corp., 89 F. Supp. 3d 1055, 1065 (C.D. Cal. 2015) (Costco was later dismissed as a party).
[3] Mortgage Grade, Inc. v. First Choice Loan Services, ___ F.3d ___, App. No. 15-1415 (Fed. Cir. 2016) available at http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1415.Opinion.1-15-2016.1.PDF.
[4] Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012) (as clarified by Alice).
[5] Claim 1 of the ‘694 patent, that the court found sufficiently representative is listed as follows:
1. A computer-implemented system for enabling borrowers to anonymously shop for loan packages offered by a plurality of lenders, the system comprising:
a database that stores loan package data specifying loan packages for home loans offered by the lenders, the loan package data specifying, for each of the loan packages, at least a loan type, an interest rate, and a required borrower credit grading; and
a computer system that provides:
a first interface that allows the lenders to securely upload at least some of the loan package data for their respective loan packages to the database over a computer network; and
a second interface that prompts a borrower to enter personal loan evaluation information, and invokes, on a computer, a borrower grading module which uses at least the entered personal loan evaluation information to calculate a credit grading for the borrower, said credit grading being distinct from a credit score of the borrower, and being based on underwriting criteria used by at least some of said lenders;
wherein the second interface provides functionality for the borrower to search the database to identify a set of loan packages for which the borrower qualifies based on the credit grading, and to compare the loan packages within the set, including loan type and interest rate, while remaining anonymous to each of the lenders and without having to post a request to any of the lenders, said second interface configured to display to the borrower an indication of a total cost of each loan package in the set, said total cost including costs of closing services not provided by corresponding lenders;
and wherein the computer-implemented system further enables the borrower to selectively expose at least the personal loan evaluation information to a lender corresponding to a selected loan package.
“nor did they patent the logic of how to pick cotton (pull cotton from plant, put cotton in storage device, deliver storage device to destination, repeat process until field picked).”
PART I By “logic” I presume you mean the mental process. For example, thinking about it, and/or verbally reciting the steps. No one here has argued you can patent a complete series of thinking or reciting steps.
However, according to the 1952 patent act, you can patent a “process” of how to pick cotton. Process in patent law goes beyond thinking and/or verbally reciting steps, it requires a physical application of the steps. (See Diehr).
T-101-E,
All that you are seeing there is the trite attempt to move the goalposts to something that is entirely in the mind, from the actual discussion of things that clearly fall to what Prof. Crouch coined as the Vast Middle Ground.
Clarity is again reached if one remembers the simple adage: software is not the thought of software.
When one realize that even Malcolm’s favorite pet theory of [Old Step]+[New Thought] boils down to nothing more than what is already present in the “Claim as a Whole” doctrine of “no mere aggregations,” one can readily see that all that is going on with such (purposeful) obfuscations and deceptions is the attempted advance of a particular agenda through the same old propaganda.
PART II So according to the law the following process is indeed eligible.
A process for picking cotton comprising:
1. Pulling cotton from plant
2. Putting cotton in storage device
3. Delivering storage device to destination
Whereby said process is repeated until field is picked
At 12.3.2 MM writes:
The question is : should a claim to a device that “encrypts data” be eligible for patenting if the only recited difference between the new device and the prior art encryption devices is the “new” functionality, i.e., the specific “new” logic used to “encrypt” the data.
But as far as I’m concerned, he hasn’t quite nailed yet what is or is not “abstract”.
More particularly, I doubt he means a claim of the form:
Data processor, characterized in that it is capable of encrypting data.
I suspect he means instead subject matter a bit less “abstract” perhaps like the following:
Process for transmitting and receiving encrypted data, using a first processor for encrypting the data using an algorithm, and a second processor for de-crypting the encrpted data using the same algorithm, characterized in that the algorithm is…..XYZ.
MM am I anywhere near it? Everybody, is this sort of subject matter eligible in the USA, or is it not?
MaxDrei,
The question is NOT just “Is?”
The question ,I.necessarily also involves “why?” – as in, why is that the answer under the law as written by Congress?
Focusing on just “is?” will lead you directly into the trap of “Ends justify the Means.”
You have to be able to get to the answer of “is?” through the appropriate means. Don’t skip that step.
eligible, or not eligible–that is the question:
Whether to argue thoughts thinkable in the mind can be patented and to suffer
The slings and arrows of outrageous posters
Or to take arms against a sea of troubles
And by opposing end them…..
If only wishing would make it so
Elegantly stated Les – kudos.
lulz
In Ariosa, the fed circuit held that for process claims that recite an abstract idea, the steps themselves must be new and useful. They didn’t ask whether a device that applies the steps are new and useful, or a device that is worked on by steps new and useful.
We need to stop treating system claims and process claims the same way under 101. A system has to be new and useful, regardless of it’s intended use.
If novelty is a question under prong two of Alice, then wouldn’t a business method be patentable if it recites “steps” that are more than mere “fundamental” economic practices? The Supreme Court said that adding a generic computer is not sufficient to make a claim directed to an abstract idea patentable, but they did not hold that a new tangible device is needed. A new set of steps should be sufficient to establish a new and useful process so long as they cannot be performed solely by mental processes.
I think the case above does the U.S. Patent system a great disservice. The court expanded the doctrine against patenting mental processes to now include any process that can be performed by humans. In other words, process that are tangible and outside the scope of being performed mentally now fail under 101.
Mike,
It’s worse than that.
It had been long understood that even steps of a claim – as long as those steps were integrated into the claim as a whole [note: not a mere aggregation] could be mental steps with NO “injury” to – or in other words, infringement could not happen solely “in the mind” – those things outside of the proper domain of patent law.
However, enough conflation (purposeful) and confusion has been gen erated in the kicking of dust to obscure this, and we have now arrived at a broken scoreboard state of affairs.
Of course, this (il)logic is NOT sustainable, and the very thing that raised the ire of Congress in the anti-patent pre-1952 era is once again loosed upon society. The fact that there is NO limit in the new (old) t001 of the “Gist/Abstract” sword, and the fact that such a sword obliterates the very words of Congress by giving the judicial branch the ability to remove the statutory category provision of 101 is – and should be – troubling.
You will here pleas from those who think that software per se should not be protected to those who think that software as a manufacture and machine component in its own right squarely falls within the law to come up with some “fall back’ position.
This is a trap to be avoided.
There is NO such logically consistent “fall back” position to be had.
This is due – in part – to the fact of equivalence (and to the naysayers, yet again , equivalence is NOT “exactly the same as”) of software with hardware.
Instead of “falling back,” what we SHOULD be doing is bringing everyone forward to an understanding of the basics of what software really is.
“Abstract idea” jurisprudence is third world primitive stuff. No one knows what is abstract and what is not until the oracle (equivalently, the paid troll charlatan known as MM) tells them. This is medieval superstition, which frankly raises doubts about evolution. If evolution is valid, why are people getting stupider?
Exactly. It is really an equity test with 102/103/112/101 all rolled into one with a judge making findings of fact and taking judicial notice without a trial. It is really against our Constitution and rights.
This patent claim and this Fed. Cir. decision are simply not worth the more than these 104 comments on it here. It appears to be just another example of a claim that should never have issued if it had had a decent 103 examination, and would not survive a valid IPR . So the objections here are actually mostly procedural rather than substantive. That is, objecting to killing such claims based on the Alice-101 ambiguous “abstraction plus nothing new” test instead of 103 or 112. But that rejection will continue to be used because summary judgments based on 103 are extremely difficult to get in a D.C. and be sustained by the Fed. Cir. What is needed is sustained legal challenges to Alice-101 decisions from patents with claims and specifications that could pass a 103 test and might draw some boundaries around “abstract.” Not just more useless complaints or denials about unanimous Sup. Ct. decisions that are not going to get reversed.
“ are simply not worth the more than these 104 comments on it here. ”
Great. Now maybe pay attention to the comments and the fact that more than just a few are dealing with larger issues of the law itself.
You know, the types of things that you don’t want to comment on but are in fact pertinent to the issues of today. And in contrast to your bald assertions (probably because you don’t “like” the possible conclusions), these are NOT “useless.”
Since no comments here that are mere personal attacks on decisions of the Sup. Ct. or Congress are from anyone with any real influence over Congress or the Sup. Ct., that is definitely not “DEALING with larger issues of the law itself.”
As for the argument by your doppelganger that it is perfectly clear what claim elements are”abstractions” or not, several members of the Fed. Cir. clearly do not find it that clear. I also hear that numerous strange 101 application rejections from confused examiners are headed to the Board and then to the Fed. Cir. That, as indicated, may establish some boundaries?
Paul several members of the Fed. Cir. clearly do not find it that clear.
It’s clear enough, at least, for a steady stream of Rule 36 affirmances, and clear enough for most reasonable attorneys to accurately predict the outcomes for challenged patents based on a quick review of the claims.
As for “confused examiners,” that’s a problem that’s never going to go away. The law is always changing and there are always going to be folks who have a harder time keeping up with the changes than others. That’s one of the reasons it’s good to step back and try to understand why those changes are occurring.
The biggest source of “confusion” in the 101 world right now is DDR Holdings. The opinion, of course, was the CAFC putting its thumb in the Supreme Court’s eye on behalf of its favorite stakeholders. The same judges who foisted that decision upon the world are going to try to shoehorn it into greater protection. But all of that dancing is taking place in a surreal vacuum where the major corrosive issue — the ineligibility of logic — is simply ignored. Golly, I wonder how it will all turn out.
Just kidding. I know how it’s going to turn out. The only question is how long will the screaming last.
What’s the difference between a process and logic? If 101 didn’t include processes as a statutory category I would understand the argument that a series of steps (i.e. logic) is not patentable per se. A process is not something tangible, it’s an action, but processes are statutory under 101. I’m just having trouble seeing how any and all processes wouldn’t necessarily fail Alice.
mike A process is not something tangible, it’s an action, but processes are statutory under 101.
Here on planet earth, the Supreme Court interprets statutes and you need to read the cases and try to understand them instead of spewing some kindergarten script you picked up from a professional patent apologists. It’s 2016, not 1792. Check your calendar if you’re confused.
What’s the difference between a process and logic?
Logical processes are a sub-category of processes, for starters. You didn’t know that? Really?
I can hardly wait for the next question.
Maybe instead of your own spewing, you want to answer that first question…?
(you haven’t given a legitimate answer yet, as both know)
mike I’m just having trouble seeing how any and all processes wouldn’t necessarily fail Alice.
And I have to assume you are not an attorney and you’re not practicing patent law. If so, you are likely committing malpractice.
Send that comment to your clients. Probably one of them is smart enough to help you out and hopefully smart enough to dump you.
Man. I was just asking a question. No need to be rude.
mike,
Your question is the type of question that Malcolm (“MM”) has always been rude to.
It is part and parcel of the “swagger” that he has foisted on this “ecosystem” for nearing a full decade (February).
And you can see by his nonsense answer (“Logical processes are a sub-category of processes, for starters. You didn’t know that? Really?“) that he really does not have any answers to your question. A “sub-category” does not explain how the so-called “sub” is different in a patent law sense. He gives a non-answer and then immediately jumps to ad hominem – and you are new here and have shown no reason to have been rude to (other than you apparently do not Belieb what he Beliebs).
Then again, he wrote that software IS logic, and by deduction from his direct statement, he must believe that one can then copyright logic (he has never shown an ability to grasp copyright law either).
mike –
logic is a set of rules.
apply logic in a sequence to solve a particular class of problems, now you do have a process…
also:
process encompasses things like: A process for making Crestor; A process for making sliced bread (as in the greatest thing since sliced bread) on an industrial scale; A process for rolling cigarettes (on an industrial scale) etc…
link to patents.google.com
…alas, you are correct…any process described in claim format can be declared to be directed to an abstract idea and fail Alice.
Is “doppelganger” anything like “cohort”…?
Or do you have to be a “Paul F. Morgan – not registered patent attorney to “have any real influence.”
Can you say “pretentious overblown w1ndbag” Paul?
What is needed is sustained legal challenges to Alice-101 decisions from patents with claims and specifications that could pass a 103 test and might draw some boundaries around “abstract.”
Boundaries? Gee, Paul, that would assume that the term “abstract” is nothing more than a nonsense word.
But the Super Serious People here who never saw a junk patent they couldn’t defend have assured us that “abstract” is a meaningless term that can be applied to everything under the sun. That’s right: everything is abstract! Up is equal to down and black is equal to white and the structure of a physical object is just like the structure of a logical argument. They told us so!
Yes, the term “abstract” is in the dictionary but that would require an actual attempt to understand what’s going on, rather than an attempt to simply shriek endlessly about how technology will stop evolving unless we grant patents on “new” logic, “new” methods of shoving ads in your face, and “new” methods of making a profit. On top of knowing how to use a dictionary, you also have to be able to use basic logic to understand how the prior art affects the subject matter eligibility analysis. Its really really really hard to do that! Like you have to be able to reason at a ninth grade level. Maybe tenth grade even!
“Yes, the term “abstract” is in the dictionary”
You have said this before, and like last time, this is a non sequitur.
READ what the Justices said in their decision. They did NOT say “we are using the dictionary definition.” You do not get to change their words into something that you feel that they should have said.
Paul, the subject matter here is not eligible. The PTO should not have wasted its time and our fees on this junk.
A great many people find fault with an eligibility test built around the notion of “abstract”. They say it is hard to tell, in borderline cases, whether the subject matter of any particular claim is or is not significantly more than “abstract”. So the test is fuzzy rather than a bright line of zero width.
Perhaps SCOTUS chose deliberately to make it fuzzy, so as not to foreclose unfairly the chances for deserving inventors to get patents on their new useful and unobvious inventive concepts.
But if we just set aside the fuzziness issue, does anybody quarrel with the notion that, if the subject matter of a claim is indeed abstract, or insignificantly different from abstract, then it is not fit subject matter to issue as a patent?
Nobody is urging that the PTO grant patents on abstract ideas. Or are they?
The answer depends on the definition of “abstract”, which is the very heart of this issue.
One of the things “said,” is that “hard to tell” is more than just at the borderline cases because the Court expressly refused to define “abstract.”
Note that Malcolm’s comment about “use the dictionary” is NOT pertinent as that option available to the Court was not one taken by the Court.
The notion of “not to foreclose unfairly… deserving inventors” is unjustly polly-annaistic all sunshine and goodness. There is nothing “positive” about the Court’s actions as they are written, and as they applied by the lower courts.
Ideas – in and of themselves are not on the table – let alone abstract ones. These are claims to items within the statutory categories and that have the utility as inclusive within the Useful Arts. ALL other uses of 101 to ploy some non-Congressional “policy,” agenda, or philosophy is ultra vires.
Some serious Wah from you Malcolm.
I guess it depends on what you mean by “abstract”.
In Europe, would a claim directed to a device for encrypting data using a “new” (or being novel and having inventive step) and “useful” encryption scheme be patentable? In the US, it might not be, as an encryption scheme is arguably “abstract” and the device does nothing that’s “significantly more” than the abstract idea. Yet, should a device encrypting data not be allowed patentability?
There are many more examples we could posit.
Oh, I guess “useful” = “having technical effect”.
PB should a device encrypting data not be allowed patentability
Wrong question.
The question is : should a claim to a device that “encrypts data” be eligible for patenting if the only recited difference between the new device and the prior art encryption devices is the “new” functionality, i.e., the specific “new” logic used to “encrypt” the data.
That’s the question. Nobody is suggesting that a claim to a new structurally distinct device, claimed in structural terms, and useful for encrypting data would not be eligible for patenting.
Do you understand this distinction, PB? A simple yes or no answer will suffice. If you can’t understand the distinction, you’re not up the task of participating in the conversation in a meaningful way. You’re just contributing noise.
Because the notion of inherency doctrine is like totally absent from Malcolm’s mind and it is only “magic” that [Old box} has all such future innovations “already in there.”
Talk about being W A Y back deep in the cave….
PatentBob, may I conjecture that what the court means by “abstract” is the same thing as the printed matter doctrine: the claimed subject matter depends upon the meaning, and that is inherently abstract.
Also, the court is using it to refer to subject matter that is claimed at the level of an idea.
“ same thing as the printed matter doctrine”
Ned,
I am STILL waiting for your inte11ectually honest treatment of the exeptions to the judicial doctrine of printed matter and some meaningful rebuttal to my very direct and simple explanation to you using simple set theory.
PatentBob, a claim to a device, having digital signal inputs and digital signal outputs where a circuit/programmed computer or the like encrypts the input and provides it to an output — well that should be patentable.
But claiming the math alone?
You do know that applied math is not the same as “Math$ or even maths, right Ned?
Let’s use a ready analogy:
Can you patent electrons?
Can you patent protons?
Can you patent neutrons?
Ah now, can you patents configurations of these things?
Max, Bilski was 5-4, and Scalia flipped his vote.
Ned,
Styevens lost his majority writing position – and we both know why.
Further the dissent dressed as a concurrence further lost ground in a subsequent decision dropping from 4 to 3.
And yet, we continue to have act otherwise.
Why is that?
I object to 35 USC 101 being interpreted as saying something about abstractness, when it does not.
I’m also not sure what the difference is between being abstract and being overly broad. If they are then same (and I think they are) then we have tools to deal with overly broad. They are 35 USC 102 and 103. I object to using 101 in their stead.
““anonymous loan shopping” is an unpatentable abstract idea.”
Why? Other than a single human declared that it was. Only possible conclusion. There being no definition of “abstract idea”.
The opinion is pornography, because I know it when I see it.
Why? Other than a single human declared that it was.
You could say the same thing for how the patent got allowed.
Yup. This is why we need Congress to amend 101 to expressly prohibit patents that are primarily made used or sold in cyberspace.
Fundamental differences between IP in meatspace and cyberspace exist. Patent protection works in the former, not the latter
Ryan, how about reality. Reality: the US has the strongest IP in Cyberspace and has the strongest Cyberspace by about a factor of 10. All of this was built under strong IP for software.
That is reality. Your nonsense is K Street propaganda that fires up the ignorant. Anyone, like me, that has worked in this field for many years knows that patents are what have made this country so great in software.
That is all conjecture and anecdotal evidence.
The actual numbers show that in the software industry, patents are a deadweight loss.
What numbers?
Could you also define what you mean by “software”? For instance, is the “software” that was recently sent to Tesla cars that allows those cars to park themselves when they couldn’t previously do so what you think of for “software”?
link to cbsnews.com
Or since it’s being added to an engine control unit and controls a car, it’s not “software”?
I think the Supreme Court does everyone a disservice when they don’t clearly delineate their reasoning and their rules. For instance, is encryption performed by a single entity no longer patentable? Encryption, at some level, is just “math” applied to data. You take data in, you encrypt it, you get data out. It’s abstract at some level. Assuming an encryption scheme is “new” and “useful”, then why is a claim directed to performing encryption on a machine such as a smartphone not patentable under Alice? I don’t know about you, but I’d love to have all of my data I send be encrypted. It’s incredibly useful to me. Or is it patentable under Alice? It’s unclear, and reading Alice provides no clear guidance.
PatentBob is really really really impressed by “smart cars”.
Never mind that people have been using computers to control vehicles for half a century. Cars are c00l! PatentBob loves them so he’s going to keep bringing them up as if somehow it changes the discussion.
The CBO report for one. Not to mention countless empirical studies from both economics and law professors.
Software is easy to distinguish from hardware.
Software is something that runs hardware but does not exist (as a ‘thing’) independently of the hardware.
Hardware is a physical object that may or may not be acted on by software.
Here in the domain of law we have this important concept called equivalence.
That concept is NOT called “exactly equal” for a reason.
Ryan, your logic is flawed because you want to address “exactly” equal” when you need to be addressing “equivalence.”
Ryan, software is not easy to distinguish from hardware. Reason? Because I can take any part of hardware (almost) and make it software. And I can take any part of software and make it hardware.
So, what you said is typical nonsense from people that are ignorant of the art field and the actual practice. I’ve written patent application for real consumer devices that are licensed for many millions. The problem is that any part of it except for generic sensors could be moved from hardware to software or visa-versa.
That is reality boys and girls. The little horrible judicial activist can continue to spout nonsense that is not reality and get their way in court and Congress, but science and reality won’t change. Your warped little minds may, but not reality and science.
Ryan also quips about still needing hardware to be able to use software – as opposed to some difference of having hardware without software…
This is error in multiple ways.
First, it is an implicit admission that software is in fact a machine component. Software is ONLY created for the utility of being a machine component. Show me “software” that is not so and I will show you someone who does not understand what software is.
Second, many machines without software CANNOT obtain any utility (other than perhaps as a paperweight or as a heat generator) – those utilities decidedly not the “intended” utility of the machine.
Third, the embraces the logical error of mistaking the “use of software” with software. Software is not “the use of software.” It can be readily recognized that due to limitation of language, it is far easier to understand software in terms of “action,” but there is still a very clear and real difference between the description in terms of action for a manufacture, and the different statutory category of actual “in use” (process).
Fourth, machines without software do NOT have the utility of machines with software. This point of FACT has been well established in many ways, from the Grand Hall experiment to In re Nazomi. Not a single anti-patent Belieber has overcome this fact.
Anon.
First, you are the one who claims software is a “machine component.” And so what if it is?
Second, nothing has utility unless it is used. The means of operating the invention, whether it be a human or source code, does not render the invention itself useless. This point is also irrelevant.
Third software is the use of hardware. More specifically it is one means of using hardware.
Fourth you repeated your second point.
Good stuff anon.
“And so what if it is?”
It then meets one of the two parts of 101.
You new here?
“Second, nothing has utility unless it is used.”
Please be aware that you are on a legal blog, with terms of art that have legal meanings. You are slipping into a “colloquialism” that shows a lack of understanding on basic principles – I suggest that you obtain some basic understanding and then come back and attempt your “battle” in this terrain. For all of your attempted “ontological” desires, you seem to lack a basic understanding of the context here.
Software is most definitely NOT “the use of” – you are imbibing in the very error that I am pointing out.
My fourth point is not a mere repeat – again, when you understand the terrain, you can pick up on the nuances.
Let me point out Prof – that this is one reason why the blight of Malcolm is unhealthy.
Clearly, we have people with a lack of understanding of the legal context involved in patent law. Malcolm should know better (having professed to being an attorney – of course, you know whether that is a falsehood or not).
And yet, Malcolm will “play” to the lack of understanding of patent law in his advocacy attempts on this blog, knowing full well how misleading that is.
You want a better “ecosystem” Prof?
Really?
Your “rules” are what you allow – and you have been allowing the Malcolm type of advocacy for nigh a decade.
If what you “want” is not congruent with what you persistently allow, please do not feign surprise that you have the “ecosystem” that you have.
You mad lol?
You are also wrong. You can’t make hardware into software or vice versa.
You can make hardware run software. But you can’t make it into software.
It is impossible to make software into hardware because software is for all PRACTICAL purposes, immaterial.
You can have as much technical experience as you want, but your unwillingness to understand simple ontological distinctions is easy to see.
Well I don’t know if Night Writer would agree but, I think most people with industry experience would agree that Adobe Systems, Inc. would be good example of a company that would not exist today but for software patents.
Adobe Systems, Inc. would be good example of a company that would not exist today but for software patents.
Don’t forget Pets.com! They sold pet food. Over the Internet.
If only the PTO had granted them more patents and made them easier to enforce! Can you imagine how easy it would buy pet food online in that case? It’d be like some kind of incredible miracle, even more astonishing than the technology that keeps the ad right in your face when you try to scroll past it.
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same old C R P – nice ecosystem Prof.
Nobody ever said a little protectionism couldn’t make a sector strong NWPA. Protectionism could most likely, right at this very moment, bring back manufacturing to the US in a strong roaring way.
The issue is not that protectionism doesn’t necessarily lead to strong sectors. The issue is what sort of protectionism is being engaged in, and what is the overall effect of the protectionism?
The issue is what sort of protectionism is being engaged in, and what is the overall effect of the protectionism?
And maybe there’s some other areas vastly more deserving of the sort of “protectionism” that patents provide.
Nah. What am I saying? A website that allows NWPA to confirm that his mommy’s face really is his mommy’s face and not just someone pretending to be his mommy probably is the most important thing ever.
Infrastructure? That’s iron age stuff. Let the Amish figure it out.
LOL – way to get the Amish rip on you completely wrong.
What a chump.
Ryan,
I don’t nothing that you have the “in cyberspace” thing quite right.
The distinction, based properly in the utility aspect of 101, is directly related to the proper understanding that software is not the thought of software.
Even your “in cyberspace” deals with being functionally related to your “meatspace.”
Far far too often this aspect of the law is (willfully) ig nored on these boards, rendering views that are not inte11ectually honest, nor helpful to any meaningful dialogue.
Lol, damm autocorrect..
The first line should read:
I don’t think that you have…
anon. Are you talking about the law as currently written? If so, then you are making a blatantly obvious point.
Of course the law, as written and interpreted currently, makes no meaningful distinction between cyberspace and meatspace. My point is that this is the implicit policy motivation behind 101.
Congress should just codify it already and end the confusion.
Ryan, there is no meaningful way to make a distinction between software and hardware. Anyone that knows the field knows that. All software is really hardware and all CPUs are really simulators of other hardware.
That is just reality. I can make a special purpose computer for any software system. It will be more expensive, but much faster. Again, K Street now owns the paper headlines.
NW there is no meaningful way to make a distinction between software and hardware.
ROTFLMAO
Meet the Super Serious People who think know everything about computers. You gotta love the conclusory b.s. Has there ever been a time in the miserable history of US software patenting when its defenders were not willing to say anything, no matter how ridiculous, if they thought it served their purposes.
Yes, folks, you can’t distinguish between hardware and software. Impossible! You heard it here first and you’ll keep hearing it probably forever, years after the issue was laughed out of the courtrooms.
I agree that software is really hardware is a bit of an overstatement.
But neither has utility without the other. Hardware with new software has new utility it did not previously have.