PatentlyO clearly has a large iceberg of an audience beyond me, MM, Ned, anon, 6, and the other usual suspects. The paper picked up 700+ views in 24 hours.
As to the substance of the criticism here; there is no particular pattern other than the usual aggression/OCD/ derp, which I take as perverse validation that the ideas are reasonably grounded. Thank-you one and all.
I think I will conclude with the old-but sadly still good listing of today’s litigation outrages, and MM, please do point out which of these will be bounced on Alice grounds and which will escape.
Phoenix Licensing, L.L.C. et al. v. Cigna Corporation, CVS Health Corporation et al., LendingClub Corporation, LoanDepot, Inc., Marriott International, Inc. and a bunch of other companies who are being essentially robbed for hundreds of K or more.
Here are the really important “inventions” involved:
US 8,352,317 System for facilitating production of variable offer communications
US 5,987,434 Apparatus and method for transacting marketing and sales of financial products
US 8,073,735 System and method for automating financial document compliance
US 7,890,366 Personalized communication documents, system and method for preparing same
Here we have:
UnoWeb Virtual, LLC v. Alliance Data Systems Corporation
US 8,140,384 Advertising revenue sharing
US 7,987,139 Advertising revenue sharing
US 7,941,345 Method of presenting contents based on a common relationship
US 8,065,386 Method of identifying and including related content in a requested web page
My test would take care of all this rubbish in the breech- so your next hotel stay or whatnot would cost that much less. Just this slice, just one of hundreds this year, will take a coupla million bucks out of useful effect for the economy.
5.1
You will take from it what you desire to take from it (as opposed to the constructive criticism offered).
That’s not a good thing.
But still, you are making better progress than Malcolm and his Echoes, so there is that.
5.2
“OCD”
It’s OCPD bro, different thing from OCD.
5.2.1
Thank-you 6; precision is desirable.
However, its fairly fuzzy where one ends and another begins, and I might consider some observed behavior here as compulsive.
As I told you, Martin, I don’t even have to look at the claims in those patents to make a very reasonable prediction: precisely none of them will survive a well-drafted challenge brought before an intelligent, educated jurist.
This isn’t rocket science. It isn’t even science. That’s a big part of the problem.
Now let’s cue up the howls from the super serious “personalized document engineers” out there.
It’s a patent on KEYWORDS forchrisake and some sad sack is in for how much in fees already?
Travesty.
4
I don’t see how this would meaningfully constrain ‘worthless’ patents. Most processes can be framed as having a variety of results. So we will just go from bickering over whether there is ‘significantly more’ to bickering over what the ‘result’ is. That doesn’t seem like a good use of political capital.
4.1
Scroll over bounce is a process for management of document edge conditions. The device consumes information directing it how to handle motion near document edges. Eligible?
4.1.1
I dealt with Overbounce in the paper- I think the result would likely be construed as informing a user of reaching a scroll limit, so ineligible.
If there was no indication to the user of the edge condition (i.e. the phone did its thing in the background using that information) the result would be eligible. I contrasted that feature with slide to unlock, which is a user informing the phone they want it to unlock- eligible, but likely obvious.
I think that finding a result is a LOT more useful than finding “something more” and yes, litigation is a form of bickering. The quintessential form, no?
4.1.1.1
I asked about overbounce precisely because you gave it as an example of an ineligible result. Why would your construction stick rather than mine?
Processes can have multiple results.
Good luck getting a reasonable result construction used. Every drafter will explicitly define their result so that their invention passes. Why wouldn’t they, since it doesn’t affect the claims?
A process for providing navigational assistance to drivers on the road becomes a process which results in the conversion of gasoline to CO2. Eligible!
This test, even if the Supremes approved of the concept, would be deemed too manipulatable.
4.1.1.2
Ultramercial… A process which results in a bank account receiving advertising revenue. Eligible!
Diehr… A process which results in alerting users when a mold has cured. Ineligible!
4.1.1.2.1
Bob the same can be said about obviousness. Certainly the same has been said about Alice- that ANY invention can be abstract.
I acknowledged that there would be wrangling about results, but that wrangling would certainly be bounded and would not include converting fuel to combustion gasses to get a GPS invention. Processes must have results- a result is inherent in the word. Any court or jury can be unreasonable at any time on any matter.
If you ask me, trying to find some abstraction is a LOT more fuzzy than trying to figure out how an infringer makes money from an invention.
As to banking, only humans have a use for banking information. In Diehr, the equipment used the algo to control the press. Easy case. Was the algo novel enough? That’s where the argument SHOULD be.
4.1.1.2.1.1
Mr. Snyder,
The point here about “the same can be said” works directly against what you are trying to say.
You do not seem to recognize the impact of your own words being used against your proposed views.
Further, you continue to have a skewed view of utility that is just not helpful. ALL utility in the end must be utility for the human consumer. You have a fundamental lack of understanding of a prominent part of the 101 equation.
4.1.1.2.1.1.1
If all utility is the same, why bother with damages calculations?
If all utility is the same, a produce with multiple patents must divide damages equally?
All utility is to human benefit is the same as all inventions are abstract. Meaningless reductionism.
Some utility happens inside people’s minds, or between people by social convention. That utility is abstract.
…
You do realize that the utility requirement of 101 is not associated with damages, right….?
You are only proving my case that your view is necessarily flawed because you have refused to recognize the terrain upon which you want to do battle.
You manifesto would only be improved if only you would recognize the veracity of what I tell you.
3
You guess wrong 6. I want worthless patents on information killed off, and worthy ones validated.
The test is proposed because Alice is a mess. The Alice test is a crapshoot that means whatever a judge wants it to mean viz. eligibility. It would be better used as an early, mixed test of novelty, obviousness, and complete description.
The test comes from defining the words “process” and “abstract” meaningfully, something which the courts have failed to do so far.
3.1
The Alice test is a crapshoot
No, it’s not. Most of the time it’s pretty easy to predict how the case is going to turn out, especially if there’s a decent attorney on the defense.
Are there cases on the margins? Of course.
The test comes from defining the words “process” and “abstract” meaningfully, something which the courts have failed to do so far.
In the context of applying Alice, the courts are using the term “abstract” in a manner pretty much consonant with the dictionary definition. Once you appreciate that the term “process” doesn’t include “abstract processes” (e.g., logic, as applied to information) then the undesirable tension pretty much vanishes.
3.1.1
“In the context of applying Alice, the courts are using the term “abstract” in a manner pretty much consonant with the dictionary definition.”
You keep on peddling that L I E, and I keep on telling you to go back and look at the actual words the Court used.
They expressly did not use a dictionary definition.
Why do you think that you get to make up your own facts and rewrite what was written?
3.1.1.1
They expressly did not use a dictionary definition.
Show everyone the quote.
You’re a very serious person, “anon!” We’re all dying to agree with you.
3.1.1.1.1
“Show everyone the quote”
Asked and answered.
I show it again, you run away again.
Y
A
W
N
3.1.1.2
Anon: “They expressly did not use a dictionary definition.”
Wrong. They expressly declined to narrow their definition. There was no express mention of a dictionary at all.
In any event, we need not labor to delimit the precise contours of the “abstract ideas” category in this case.
3.1.1.2.1
Of course the good Count Dobu shows up to prove my point – and not even realize it.
Truly classic.
Dobu, you do realize that had the Court wanted to use the dictionary definition, that they would have directly stated it. As it is (thank you) by NOT doing so, they have expressly did not do so.
🙂
3.1.1.2.1.1
The Court: “We don’t have to define it here, so we won’t.”
Patent Maximalist: “A-HA! Now you CAN’T use the dictionary definition! Gist-wax-nose-judicial-activism! The sky is falling!”
Utter nonsense. Nothing’s been waived. The dictionary is still on the table.
3.1.1.2.1.1.1
Dobu – correct, the dictionary definition is still able to be used. However, Anon is also correct. The dictionary definition does not have to be used.
Result – the court can make the term “abstract” mean whatever they want it to mean, and can support their meaning with or without a dictionary definition. There’s your nose of wax.
…
That’s right, “anon”: just turn up the goofiness!
Use more caps and more bold text. It’s s00per persuasive and everybody takes you really seriously!
LOL
That’s right “MM,” just focus more on the form and not the content, because that has worked so well for you…
NOT.
What a putz.
…
xtian: Anon is also correct. The dictionary definition does not have to be used.
Except that nobody is saying that “the dictionary definition had to be used.” Your li’l buddy “anon” called me a l1ar (in using all caps – LOL!) for suggesting that the working definition of the term “abstract” is pretty much in line with the dictionary definition.
Was that correct, xtian? Of course it wasn’t. It was just “anon” being his usual a xx h0le self.
the court can make the term “abstract” mean whatever they want it to mean
Really? What’s the name of the id i0t who t0ld you that?
3.1.1.2.1.1.2
The utter nonsense her Dobu is in your mischaracterization of what I have said, while simply not “getting” the importance of not only what I have said, but what the Court also said (and did not say).
I have NOT said “you cannot use.”
I have said “the Court DID NOT use.”
Do you even “get” why it is important to recognize what the Court did – and did >not – do?
Pay better attention Dobu.
xtian,
it is even worse than that. The Court in rewriting the law in its image and providing a truly limitless sword of “Gist/Abstract,” have written a law that is void for vagueness.
Malcolm likes to pretend that there is NO problem whatsoever in the limitlessness and the NON-specified nature of “abstract.”
He does not even have the awareness of the problem of vagueness concerned with this principle t001 that the Court has fashioned to reach its desired ends.
He seeks only to mock those such as PatentBob that call attention to the very real problem that the unlimited sword can be wielded in a “whatever ends ANY particular judge may want to arrive at.”
He mocks by attempting to portray this as some type of “ALL claims must be ‘abstract,'” exaggeration when he should be realizing that it is not – and never has been – about such an “ALL.”
He mocks the fact that some of the claims struck down as abstract were stipulated to have passed the machine prong (which of course means that the optional method of “objective physical structure” could have been used with NO difference to the judicial outcome).
He obscures the fact that claims – as a whole – that clearly are understood to BE machines or manufactures are somehow now parsed and made into “abstract” machines and manufactures, based on some vague “Gist” that is left in the hands of ANY judge to arrive at.
He does not realize the historical parallel to what the Courts of pre-1952 had been doing likewise with “invention,” “gist of the invention,” “spirit of the invention,” or any of the dozens of other like terms that the courts used in the time frame that those selfsame courts had the power of common law evolution of the term “invention” granted to them by a previous Congress. This is the very power stripped from the judicial branch by Congress in 1952. Congress saw the mess the courts had made, saw that common law was just NOT arriving at a better and more clear definition of the term “invention,” and revoked that power from the judicial branch and in its place set up the law of 103.
All of these proper understandings of the means MUST BE in place when we are discussing the desired ends and – the critical issue – of were the ends reached by a court reached through proper means.
…
“anon” these proper understandings
Bow down everybody! “anon” has spoken.
He’s been wrong about pretty much everything up to this point but he’s a very serious person.
lol anon you are such a tattletale. Grow up. As if MM getting off the forum would make you any less wrong about everything.
Professor. Thank you for ignoring anon’s senseless pleas requesting that you sensor MM. I for one appreciate MM’s presence on this forum.
3.1.2
IMO, every process should have a result, and that result should be construed as a matter of law. That step will help narrow any kind of eligibility inquiry.
As to “abstract”, the dictionary definition neither excludes or includes any particular kind of invention, since lack of tangibility was not held in Bilski to automatically result in abstraction.
It’s not easy at all to predict how a case will turn out- esp. at the district level.
3.1.2.1
Martin Synder: As to “abstract”, the dictionary definition neither excludes or includes any particular kind of invention, since lack of tangibility was not held in Bilski to automatically result in abstraction.
That’s an obviously false statement. Even if the Court in Bilski held (incorrectly and readily reversibly) that something intangible could be eligible for patenting, the dictionary definition still plainly excludes subject matter from the scope of “abstract.”
Refresh my memory: did Bilski say anything about a claim to a novel structure or composition, wherein that structure/composition is described in objective structural terms that distinguish the claimed structure from prior art on that basis (i.e., on the basis of recited structure)? Did Bilski suggest that such a claim could still be considered “abstract”?
My memory is really really foggy on that issue. But you must have read the case very recently. What the Court say about claims like that?
It’s not easy at all to predict how a case will turn out- esp. at the district level.
Ah, the ever popular moving of the goalpost. I suppose it’s even “harder to predict” whether a licensee will bother to find a lawyer who is competent enough to make the easy 101 argument that tanks the claim.
That doesn’t change the fact that, in most cases, it’s a pretty straightforward analysis with a predictable outcome. Heck, just reading the preamble of a claim can often give you a pretty good idea of its chances of passing the test in Alice.
3.1.2.1.1
MM my “obviously false statement” that lack of tangibility was not held in Bilski to automatically result in abstraction is hard to square with this rather unambiguous passage from Bilski:
“The machine-or-transformation test may well provide a
sufficient basis for evaluating processes similar to those in
the Industrial Age—for example, inventions grounded in a
physical or other tangible form. But there are reasons to
doubt whether the test should be the sole criterion for
determining the patentability of inventions in the Information
Age”
For one example of an unpredictable outcome, see Genband US LLC v. Metaswitch Networks Corp. (E.D. Tex. 2016).
Or maybe this one:
Motio, Inc. v. BSP Software LLC (E.D. Tex. 2016)
Maybe instead of just cracking wise that the goalposts have moved, we should find briefed cases before the opinions issue and see just how many you (and me) can call ahead of the game.
The truth is that Alice is a fine test for patentability, but lousy for eligibility. The former is inescapably subjective and always will be, while the latter should be just as tight as it can possibly be. The test I propose would accomplish that tightening for computer and biotech inventions far better than the flawed Alice approach ever will.
3.1.2.1.1.1
May I suggest a slightly different approach Mr. Snyder?
Rewrite your piece in a different mode.
Make clear which parts are new and not a part of the law as it is today, where these new parts are identified as to what the drivers are, and set forth these as items that Congress could pick up and use.
As it is, you are simply steeped in the incorrect usage of terms of art and injection of different ways of thinking that show a lack of appreciation and understanding of the law as it is today.
Recognize the terrain for what it is. Recognize what are mountains of granite that you are trying to run through with brute force, and what are cliffs that you gallop over.
I “get” the result that you want to have. The problem comes from your thinking that the existing terrain does not matter in obtaining that result.
I have watched as your “thinking” has evolved and there is no comfort in watching the reaction of Malcolm (being Malcolm) as he att acks you for not following his herd.
A few specifics for you to (continue) pondering:
“while the latter should be just as tight as it can possibly be”
Why?
Do you realize that the front gate IS a wide open gate – and for the express purpose that innovation is just not linear, nor possible of being known a priori? You seem to want stringency at the very point that flexibility is required.
You have identified the weakness of Malcolm’s (and Ned’s) herd mentality of MoT – but you have not yet realized that human interaction is NOT off limits to the patent world. The safe guard that you seem to want really already is there with the safeguard of “claim as a whole,” and the all elements rule. The obfuscating argument of “parsing” as well as the canard of “at the point of novelty” seek to prey on the confusion of this point. You seem to have grasped in some small sense the realization of the weakness there. I invite you to continue growing and realize that it is only those claims that are totally in the mind that are off limits, and that there is nothing wrong – and plenty good – that can and should come from the fruits of the patent system that embraces human interaction as a part of claims that satisfy the Quid Pro Quo.
You have come some distance from your initial posts that sought to glorify the use of 101 as a “cheap replacement” for 103, while not even recognizing that the different sections of law have different purposes.
I congratulate you on noticing that difference – especially when it is a “favorite meme” of some of the most vocal anti-patentists to purposefully obscure those differences in their windmill chases.
It is still less of a “game” of calling ahead of the game, and more of a using the proper means to arrive at whatever desired result is to be arrived at.
3.1.2.1.1.1.1
I agree with the Bilski court that the gate should be wide open to new kinds of inventions. It should be as tight as possible for existing kinds of inventions because sheer weight of lawyering can get lots of junk thru the office, and hurt people badly once litigated, with no merit whatsoever. It’s better now, but not nearly good enough.
My views on software patents have evolved. I actually go further than most patent maximalists by suggesting that new, useful, non-obvious algos (i.e. pure information or “logic”) should be patent eligible. Human interaction within claims, TOWARD a result, is more than acceptable- its essential to enable certain inventions.
However, when the result of a method is processed information, and that information gains its utility by human consumption of the information, that result goes beyond what the patent system should be allowed to exclude.
It’s a bright, easy to find, non-negotiable line, and its been crossed to terrible effect for far too many people.
“Point of novelty” is not a canard. Patents presume inventions. The invention has to be somewhere- it has to be more than an easy or obvious next step from prior art. As for “Claim as a whole”, I agree, and that’s why method patents must have an identified result, construed as a matter of law- to encompass the whole of the claims.
I have never supported the pragmatic extension of 101 – I have described it. It can and should be fixed.
…
First point:
“gate should be wide open to new kinds of inventions. It should be as tight as possible for existing kinds of inventions because sheer weight of lawyering can get lots of junk thru the office, ”
you just stepped backwards with your attempt here to contrast “new kinds of inventions and existing kinds of inventions as a function of the front gate.
That function you reference was moved by Congress into the then newly created 103.
When you do not appreciate history, you prove yourself unable to learn from history.
Second point:
Your attempt to change how utility is viewed needs to be better presented. Like your other charging over the precipices without regard to the terrain, you attempt to brute force redefine how utility is viewed. Your attempt is an attempt in a vacuum that just does not exist.
Third Point:
Point of Novelty – as it is attempted to be used IS a canard. You may want it otherwise, but your attempt to not understand the terrain of why it is a canard is simply a terrible drawback for you. You should understand this terrain before you attempt to charge in here. It simply does not matter “where” in a properly integrated claim (read that as “claim as a whole”: already takes care of mere aggregations) ANY so-called point of novelty exists, because it is the claim as a whole that under the microscope. The canard portion is expressly derived from the attempted obfuscation and purposeful smudging of the clarity of law based solely on some desired philosophical ends.
Fourth Point:
Your last sentence carries an incorrect assumption. NONE of this discussion on my part has ANYTHING to do with “extension.”
The “extension” argument is a logical fallacy by those who simply do not want to give the full – and proper – weight to the words as chosen and written by the branch of the government that has been (solely) authorized to write the statutory law that is patent law.
Make no mistake, the legislative branch CAN share its authority with another branch – and under controlled conditions have shared that authority.
But that is simply a far cry (the means really do matter) from celebrating ANY ends – regardless of how “noble” those ends may be – that either comes from the improper means of improper delegation (say for example delegating to the executive branch powers that violate other existing constitutional protections for existing property rights) or for outright power grabbing of one branch of that power that has been rescinded (the judicial branch attempting to use common law power to set the meaning of the word “invention”).
Going Forward:
You are slowly coming to the realization that the rules of law DO in fact exist and that the Rule of Law – as laid down by the Constitution – binds every branch and that NO branch is above the law.
That is why I suggest that you redo your manifesto.
It is NOT that your ideas are “bad” in and of themselves. It is merely that you are still making blunders that can be – and should be – avoided because you still have some indifference (or possibly disdain) for the terrain.
My advice – as it as has always been is to appreciate and apply knowledge.
The notion that claims can ONLY be considered “as a whole” is meaningless. Claims are made of words. Each of the words may be construed. Sets of construed words make up elements of claims, and elements of claims are considered, together, to make up a claim. Claims are considered alone, and in combination. All of these examinations are intended to find, or exclude, an invention.
I am aware of the purposes behind the creation of 103. That purpose did not include any diminishing of what it means to have made an invention or discovery under the Constitution. KSR made this perfectly clear.
And as I have pointed out to you in the past, the question of Equity over Law has been settled for for almost 500 years. Ends matter more than means. That does not mean that any means are acceptable to reach any ends.
In the case of the misuse of 101, the ends do matter more than the means, but it would be better to use better means.
My advice to you is to drop the pedantry and victim blaming and understand just how many people have been harmed unfairly by your beloved, but broken system, which was broken by the rise of information technology and the usual destruction of self-discipline found in virtually every institution of our society.
There has always been patent abuse; there always will be, but the price has gone up, and it’s intolerable.
Your notion of “meaningless” is itself “meaningless.
You are again trying to act as if a vacuum exists, when no such vacuum exists.
Read again and understand that different sections of law mean different things. The canard comes from trying to insert aspects of novelty into portions of the claim, parse out the portions and only look at eligibility from a parsed viewpoint. I am NOT mixing ALL of examination into one view – like your reply indicates.
Your view and “understanding” behind the creation of 103 is contradictory. Clearly you do not understand if you think that this was separate from the court’s long standing unfruitful attempts to use common law to define invention. Your post here is proof in itself that you do not understand that which you claim to understand. KSR is inapposite to this. Anything in KSR that would attempt to speak to this is dicta at best, and does not compare to the words of Congress itself.
Your view of the mix of equity and law is not on point to this discussion. Even in equity, the means still matter. You are only “banking” on your own misunderstanding in a different area of law. You almost grasp this by your attempt to say “better means,” but you are just not there.
You then turn around and accuse me (again, and unjustly again) of “pedantry and victim blaming,” when I have engaged in no such thing. It is your feeling that there is unfair harm in the “broken” system, but that is ONLY your feeling. You simply want to overplay your feelings as to making the entire system be subjectively held to be “bad” because that it the way you feel. This type of subjective “bad” is meaningless. Issues of relative harm are addressed by Congress, and Congress has decided for this law.
As I suggested, you need to recognize this terrain and NOT de facto declare that because of how you feel all the terrain is a nullity. This is decidedly NOT the same as saying that you cannot voice your opinion on how to change it – I encourage you to do so, but also encourage you to do so effectively with the observations that I have made.
You are simply trying TOO hard to ig nore the terrain and contexts that you cannot ig nore.
There is a clear difference between your perception of anyone “victim blaming” and you playing the role of victim and saying because I am the victim, my views need to wipe out all context of existing law. What you personally find intolerable just does not make it so. Accusing anyone that disagrees with your feelings – especially when that person know the law and tries to tell you that your views are faulty for not recognizing the terrain of the law is more than a bit self-defeating.
I have never said that the system is perfect – nor that the system could not be made better.
But your manifesto F A I L s to reach that point and does so for easily avoided reasons that are still quite evidently bound up in your personal feelings of being a victim. It is just NOT victim blaming to point out to you that your feelings of being a victim excuse you of taking not account the terrain. It is imply NOT pedantry to point out to you that the terrain DOES exist and must be accounted for.
Believe it or not, I am NOT your enemy. Your enemy is in fact more so those that would “use” you and lead you astray because of your feelings of being a victim. They may “sound” as if the “noble ends” justify any means (and pretending to be in a vacuum is very much along the lines of “any means”).
Being able to tell you what you don’t want to hear does not make me a villain.
Others telling you what you do want to hear does not make them the hero.
Martin: The notion that claims can ONLY be considered “as a whole” is meaningless.
Of course this is correct, Martin.
Diehrbots like “anon” will never stop pretending, however, and they’ll never stop weeping about “claim dissection” and “conflation”. It’s really all they know how to do.
That was predicted, by the way. By me.
…
“anon” Point of Novelty – as it is attempted to be used IS a canard.
Ah, the Dierhbots and their zombie myths that refuse to die.
Meanwhile, every sane patent system in the universe will continue to compare claims to the prior art to determine the nature of the alleged inventor’s contribution. And that’s not ever going to change.
LOL – have not seen the “Diehrbots meme in awhile.
Tell me Malcolm, do you still think that case to have been wrongly decided?
3.1.2.1.1.2
Martin Snyder: we should find briefed cases before the opinions issue and see just how many you (and me) can call ahead of the game.
I’ve been doing that for years here, Martin, right up to the present. I’ve got a very good track record.
Welcome to the blog.
3.1.2.1.1.3
Martin: MM my “obviously false statement” that lack of tangibility was not held in Bilski to automatically result in abstraction
Martin, I’ve said it before and I’ll say it again: in spite of the presence here of some of the shallowest waders, you’re not in the kiddie pool when you comment here. If you want to play silly strawman-bashing games, do it over at Big G’s echo chamber.
If, on the other hand, you want to challenge something I actually wrote, you need to copy what I actually wrote and respond to what I actually wrote. Thanks. Since it seems difficult for you, here (again) is what you wrote:
As to “abstract”, the dictionary definition neither excludes or includes any particular kind of invention, since lack of tangibility was not held in Bilski to automatically result in abstraction.
And here (again) is what I wrote:
That’s an obviously false statement. Even if the Court in Bilski held (incorrectly and readily reversibly) that something intangible could be eligible for patenting, the dictionary definition still plainly excludes subject matter from the scope of “abstract.”
Do I really need to hold your hand even more firmly and walk you through this? Read my entire comment again. It’s important for you to understand the point if you expect me or anyone else to take you seriously.
The Supreme Court is not nearly as ign0rant as the s0ftware patent l0vers wish it was. You can dr00l all over yourself 24 hours a day with your “information age” baloney but that doesn’t mean the physical world and the structures (new and old) in it have disappeared or have become w0rthless. That’s never going to happen. You know it. I know it. Even “anon” knows it. The Supreme Court definitely knows it.
Time to step out of your bubble and wrap your head around that fact. Otherwise you’re just another chatterer without a clue.
3.1.2.1.1.3.1
“doesn’t mean the physical world and the structures (new and old) in it have disappeared or have become w0rthless. That’s never going to happen”
Talk about your (off point) strawman.
…
My comment about the importance of physical structures to humankind is directly on point to the discussion I’m having with Martin.
That discussion, as English-literate readers will readily understand, is about the continued and absolutely unassailed eligibility of claims to novel structures that distinguish themselves from the prior art in objective structural terms.
Those claims are not “abstract”. No court — and certainly not the Supreme Court — has even come remotely close to suggesting otherwise. For that reason alone, the g00fballs who come here and assert that “everything is abstract” are best ign0red. And, yes, “anon”, you’re definitely one of those g00fballs.
But we knew all this already.
Your post was a strawman because you fabricated out of whole cloth a position that no one has ever advanced only to knock that position down as if that made position had any consequence.
The emergence of the wave of innovation that is recognized as the information age simply does NOT dictate that physical items and structures would “disappear.”
Your faux argument merely serves as a segue to an equally faux view on one optional form of claim.
Or are you still pretending that such is more than just an option?
“anon” The emergence of the wave of innovation that is recognized as the information age simply does NOT dictate that physical items and structures would “disappear.”
Golly, thanks for repeating what I already wrote (except you left out the important “or become worthless” part — go figure).
Now, if you continue reading the discussion I’m having with Martin with an intent to understand you’ll realize that this point was made to focus Martin’s attention on the fact that regardless of how “important” information is today (for argument’s sake, let’s say it’s sooper dooper kooper looper important with a cherry on top!) it doesn’t change the fact that (SURPRISE!) physical structures are still really important. And there is nothing — absolutely nothing — in any of the Supreme Court’s patent cases to suggest that when they address the issues created by the claiming of “abstract” subject matter they are defining the term “abstract” to encompass claims to physical objects distinguished from the prior art using objective physical terms.
Got that? Gee, I hope so. It’s only lke the thousandth time I’ve said it in response to the sycophantic “everything is abstract” inanity that you and your cohorts continually spew here.
“(except you left out the important “or become worthless” part — go figure).”
?
How bizarre of you.
Even going along with your discussion with Martin, your comment is STILL a strawman – and for the very easy to understand and direct explanation in English that I provided.
It just does not matter that you are “using” that strawman in a conversation with Mr. Snyder or not – it remains a strawman.
…and you forgot to answer my question to you.
Here let me repeat it so you can be sure to see it:
Or are you still pretending that such is more than just an option?
3.1.2.2
I personally have an incredibly hard time counseling clients as to which claims will or will not be subject to a possible Alice rejection and/or court decision. I gave a presentation and preparation for the presentation asked attorneys here to evaluate claims under Alice, as I did. We got a mixture of patentable and not patentable under Alice, and these are for claims the patent office itself says are patentable under Alice!!
For instance, the PTO thinks this claim is patentable under Alice. All of us thought this claim was not patentable under Alice.
1. A computer-implemented method for halftoning a gray scale image, comprising the steps of:
generating, with a processor, a blue noise mask by encoding changes in pixel values across a plurality of blue noise filtered dot profiles at varying gray levels;
storing the blue noise mask in a first memory location;
receiving a gray scale image and storing the gray scale image in a second memory location;
comparing, with a processor on a pixel-by-pixel basis, each pixel of the gray scale image to a threshold number in the corresponding position of the blue noise mask to produce a binary image array; and
converting the binary image array to a halftoned image.
Now, I can make arguments for and against patentability of this claim, but I can’t decide which one would win (and note that this claim is based on a case that occurred BEFORE Alice and one that I think wouldn’t have the same result under Alice). And these claims occur all the time in patent prosecution.
3.1.2.2.1
I should also note that when I gave the presentation to a group of patent attorneys, there were yet more views as to whether this claim was or was not patentable under Alice.
It’s like I always say: Ask 100 attorneys for their opinions on a matter, and you’ll get 110 different opinions. 😉
But from being in the “trenches”, Alice is bad. To me, “concrete, useful, and tangible” or even “machine or transformation” made sense. Alice does not. I do not feel comfortable giving guidance for Alice.
3.1.2.2.1.1
Be prepared for the “advice” from Malcolm on your level of discomfort in giving advice on something that is inherently suffers from the void for vagueness syndrome.
3.1.2.2.2
Easily eligible under my test because the result of the method is information, and the consumer of the information is an image rendering system.
Now is it new, non-obvious, and fully described? That’s a more subtle question. The algo is a one-step comparison which is probably pretty obvious, and the coding to accomplish it is trivial.
3.1.2.2.2.1
baby steps, I suppose, are good.
(you do seem to be aware of the non-human factor of “consuming,” as the use of language that merely “sounds” in being human – but is not human – should be carefully noted and not [purposefully] obfuscated with any sense of the old Mental Steps doctrine)
3.1.2.2.2.1.1
(..and yes, that great word of anthropomophism applies)
😉
Machines really are not people – and do not obtain the same protections that people obtain. It is simply unhelpful to try to read claims NOT as a Person Having Ordinary Skill In The Art would read them and to try to read into the claims those things that are TOTALLY in the human mind. This is one of the very real dangers of “gisting,” of NOT taking claims as a whole.
…
Machines really are not people – and do not obtain the same protections that people obtain.
I don’t know what we’d do without you, anon.
All of your snark aside, DanH, you really should pay attention to some of what Malcolm attempts to foist that carries that very simple error of attempting to mix the human and the machine.
3.1.2.2.2.2
Well, the PTO dumbed down this claim for some reason. This is one of the “real” claims:
1. A method for the halftoning of gray scale images by utilizing a pixel-by-pixel comparison of the image against a blue noise mask in which the blue noise mask is comprised of a random non-deterministic, non-white noise single valued function which is designed to produce visually pleasing dot profiles when thresholded at any level of said gray scale images.
The pre-Alice case is Research Corporation Technologies Inc. v. Microsoft Corp., 97 USPQ2d 1274 (Fed. Cir. 2010). To me, this claim isn’t patentable under Alice, either. However, the invention was the part about the “random non-deterministic, non-white noise single valued function which is designed to produce visually pleasing dot profiles when thresholded at any level of said gray scale images”.
3.1.2.2.2.2.1
PB, that second version may pass the 103 inquiry under KSR.
I don’t know, but I think the eligibility of the earlier version claim should not even be a close question.
The second version would probably be ineligible if the result is construed to “produce visually pleasing dot profiles when thresholded at any level of said gray scale images”.
Under my proposed test, infringement can’t be from human consumption, but only arise from the rendering system performing the method.
The second version tanks anyway because what is “visually pleasing” is clearly indefinite under Nautilus et al.
3.1.2.2.3
“For instance, the PTO thinks this claim is patentable under Alice. ”
Nah, that’s just PTO incompetence bowing to the federal circuit’s “authority” on the matter. Obviously that case would have been decimated by the supremes.
3.1.2.2.4
PatentBob, image in, image out. What is there about this that is not patentable subject matter?
3.1.2.3
“It’s not easy at all to predict how a case will turn out- esp. at the district level.”
It usually takes me about an hour max to know what the proper legal result is, regardless of how often the DC courts would actually get that proper legal result. Especially if someone is on hand to tell me about the facts. Now, if you’re complaining about the incompetence of DC courts to decide the matter and get the right legal result, then that is a real concern.
3.1.3
“No, it’s not.”
Exactly.
3.2
I’m going to respectfully disagree with you there bro, it’s no crpshoot, the only problem with the Alice test is that it can be hard to dig up the abstraction etc. the applicant is so often burying (either intentionally or not). And of course that there will be close cases, like MM discusses below. But that’s the same as with obviousness so meh, that’s just how questions of law go.
“I want worthless patents on information killed off, and worthy ones validated.”
You mean you just want some certainty as to which of them are worthless and which are worthy? Because otherwise I don’t understand how you’re pre-judging which are worth something and which are worthless. As in, I don’t understand how you’re building that value determination into the law with your proposal.
“The test comes from defining the words “process” and “abstract” meaningfully, something which the courts have failed to do so far.”
Mmmm, I’m just going to disagree with you there. They’re defined meaningfully, very meaningfully. Invalidatingly meaningfully in fact for many claims. Abstract is just the normal usage of the word and encompasses anything that can reasonably be put within. Process is also just the normal use of the word.
2
“The proposed eligibility test requires that the information-consumer of a process-based invention’s result may not be a human
being.”
I skimmed the whole thing and don’t understand where this “test” came from, why it is being proposed, or anything of that sort. Unless we count “The simple elegance and universal human-rights orientation of this approach may help reestablish America’s leadership in protecting both freedom and the economic value of
information innovations in this still new Age. ” <the ending. Where that just apparently means "Martin et al. can tots make some money".
2.1
“tots”?
You must be pushing 30 or so, right, 6?
2.1.1
You think millennial vocab is going to magically change because we get older?
2.1.1.1
One can only hope…
1
“New Approach to Section 101 Analysis”
Let me guess, it’s one that allows all of the claims Martin tots wants!
PatentlyO clearly has a large iceberg of an audience beyond me, MM, Ned, anon, 6, and the other usual suspects. The paper picked up 700+ views in 24 hours.
As to the substance of the criticism here; there is no particular pattern other than the usual aggression/OCD/ derp, which I take as perverse validation that the ideas are reasonably grounded. Thank-you one and all.
I think I will conclude with the old-but sadly still good listing of today’s litigation outrages, and MM, please do point out which of these will be bounced on Alice grounds and which will escape.
Phoenix Licensing, L.L.C. et al. v. Cigna Corporation, CVS Health Corporation et al., LendingClub Corporation, LoanDepot, Inc., Marriott International, Inc. and a bunch of other companies who are being essentially robbed for hundreds of K or more.
Here are the really important “inventions” involved:
US 8,352,317 System for facilitating production of variable offer communications
US 5,987,434 Apparatus and method for transacting marketing and sales of financial products
US 8,073,735 System and method for automating financial document compliance
US 7,890,366 Personalized communication documents, system and method for preparing same
Here we have:
UnoWeb Virtual, LLC v. Alliance Data Systems Corporation
US 8,140,384 Advertising revenue sharing
US 7,987,139 Advertising revenue sharing
US 7,941,345 Method of presenting contents based on a common relationship
US 8,065,386 Method of identifying and including related content in a requested web page
My test would take care of all this rubbish in the breech- so your next hotel stay or whatnot would cost that much less. Just this slice, just one of hundreds this year, will take a coupla million bucks out of useful effect for the economy.
You will take from it what you desire to take from it (as opposed to the constructive criticism offered).
That’s not a good thing.
But still, you are making better progress than Malcolm and his Echoes, so there is that.
“OCD”
It’s OCPD bro, different thing from OCD.
Thank-you 6; precision is desirable.
However, its fairly fuzzy where one ends and another begins, and I might consider some observed behavior here as compulsive.
link to ocd.about.com
As I told you, Martin, I don’t even have to look at the claims in those patents to make a very reasonable prediction: precisely none of them will survive a well-drafted challenge brought before an intelligent, educated jurist.
This isn’t rocket science. It isn’t even science. That’s a big part of the problem.
Now let’s cue up the howls from the super serious “personalized document engineers” out there.
Yea, explain this?
link to patentdocs.org
It’s a patent on KEYWORDS forchrisake and some sad sack is in for how much in fees already?
Travesty.
I don’t see how this would meaningfully constrain ‘worthless’ patents. Most processes can be framed as having a variety of results. So we will just go from bickering over whether there is ‘significantly more’ to bickering over what the ‘result’ is. That doesn’t seem like a good use of political capital.
Scroll over bounce is a process for management of document edge conditions. The device consumes information directing it how to handle motion near document edges. Eligible?
I dealt with Overbounce in the paper- I think the result would likely be construed as informing a user of reaching a scroll limit, so ineligible.
If there was no indication to the user of the edge condition (i.e. the phone did its thing in the background using that information) the result would be eligible. I contrasted that feature with slide to unlock, which is a user informing the phone they want it to unlock- eligible, but likely obvious.
I think that finding a result is a LOT more useful than finding “something more” and yes, litigation is a form of bickering. The quintessential form, no?
I asked about overbounce precisely because you gave it as an example of an ineligible result. Why would your construction stick rather than mine?
Processes can have multiple results.
Good luck getting a reasonable result construction used. Every drafter will explicitly define their result so that their invention passes. Why wouldn’t they, since it doesn’t affect the claims?
A process for providing navigational assistance to drivers on the road becomes a process which results in the conversion of gasoline to CO2. Eligible!
This test, even if the Supremes approved of the concept, would be deemed too manipulatable.
Ultramercial… A process which results in a bank account receiving advertising revenue. Eligible!
Diehr… A process which results in alerting users when a mold has cured. Ineligible!
Bob the same can be said about obviousness. Certainly the same has been said about Alice- that ANY invention can be abstract.
I acknowledged that there would be wrangling about results, but that wrangling would certainly be bounded and would not include converting fuel to combustion gasses to get a GPS invention. Processes must have results- a result is inherent in the word. Any court or jury can be unreasonable at any time on any matter.
If you ask me, trying to find some abstraction is a LOT more fuzzy than trying to figure out how an infringer makes money from an invention.
As to banking, only humans have a use for banking information. In Diehr, the equipment used the algo to control the press. Easy case. Was the algo novel enough? That’s where the argument SHOULD be.
Mr. Snyder,
The point here about “the same can be said” works directly against what you are trying to say.
You do not seem to recognize the impact of your own words being used against your proposed views.
Further, you continue to have a skewed view of utility that is just not helpful. ALL utility in the end must be utility for the human consumer. You have a fundamental lack of understanding of a prominent part of the 101 equation.
If all utility is the same, why bother with damages calculations?
If all utility is the same, a produce with multiple patents must divide damages equally?
All utility is to human benefit is the same as all inventions are abstract. Meaningless reductionism.
Some utility happens inside people’s minds, or between people by social convention. That utility is abstract.
You do realize that the utility requirement of 101 is not associated with damages, right….?
You are only proving my case that your view is necessarily flawed because you have refused to recognize the terrain upon which you want to do battle.
You manifesto would only be improved if only you would recognize the veracity of what I tell you.
You guess wrong 6. I want worthless patents on information killed off, and worthy ones validated.
The test is proposed because Alice is a mess. The Alice test is a crapshoot that means whatever a judge wants it to mean viz. eligibility. It would be better used as an early, mixed test of novelty, obviousness, and complete description.
The test comes from defining the words “process” and “abstract” meaningfully, something which the courts have failed to do so far.
The Alice test is a crapshoot
No, it’s not. Most of the time it’s pretty easy to predict how the case is going to turn out, especially if there’s a decent attorney on the defense.
Are there cases on the margins? Of course.
The test comes from defining the words “process” and “abstract” meaningfully, something which the courts have failed to do so far.
In the context of applying Alice, the courts are using the term “abstract” in a manner pretty much consonant with the dictionary definition. Once you appreciate that the term “process” doesn’t include “abstract processes” (e.g., logic, as applied to information) then the undesirable tension pretty much vanishes.
“In the context of applying Alice, the courts are using the term “abstract” in a manner pretty much consonant with the dictionary definition.”
You keep on peddling that L I E, and I keep on telling you to go back and look at the actual words the Court used.
They expressly did not use a dictionary definition.
Why do you think that you get to make up your own facts and rewrite what was written?
They expressly did not use a dictionary definition.
Show everyone the quote.
You’re a very serious person, “anon!” We’re all dying to agree with you.
“Show everyone the quote”
Asked and answered.
I show it again, you run away again.
Y
A
W
N
Anon: “They expressly did not use a dictionary definition.”
Wrong. They expressly declined to narrow their definition. There was no express mention of a dictionary at all.
Of course the good Count Dobu shows up to prove my point – and not even realize it.
Truly classic.
Dobu, you do realize that had the Court wanted to use the dictionary definition, that they would have directly stated it. As it is (thank you) by NOT doing so, they have expressly did not do so.
🙂
The Court: “We don’t have to define it here, so we won’t.”
Patent Maximalist: “A-HA! Now you CAN’T use the dictionary definition! Gist-wax-nose-judicial-activism! The sky is falling!”
Utter nonsense. Nothing’s been waived. The dictionary is still on the table.
Dobu – correct, the dictionary definition is still able to be used. However, Anon is also correct. The dictionary definition does not have to be used.
Result – the court can make the term “abstract” mean whatever they want it to mean, and can support their meaning with or without a dictionary definition. There’s your nose of wax.
That’s right, “anon”: just turn up the goofiness!
Use more caps and more bold text. It’s s00per persuasive and everybody takes you really seriously!
LOL
That’s right “MM,” just focus more on the form and not the content, because that has worked so well for you…
NOT.
What a putz.
xtian: Anon is also correct. The dictionary definition does not have to be used.
Except that nobody is saying that “the dictionary definition had to be used.” Your li’l buddy “anon” called me a l1ar (in using all caps – LOL!) for suggesting that the working definition of the term “abstract” is pretty much in line with the dictionary definition.
Was that correct, xtian? Of course it wasn’t. It was just “anon” being his usual a xx h0le self.
the court can make the term “abstract” mean whatever they want it to mean
Really? What’s the name of the id i0t who t0ld you that?
The utter nonsense her Dobu is in your mischaracterization of what I have said, while simply not “getting” the importance of not only what I have said, but what the Court also said (and did not say).
I have NOT said “you cannot use.”
I have said “the Court DID NOT use.”
Do you even “get” why it is important to recognize what the Court did – and did >not – do?
Pay better attention Dobu.
xtian,
it is even worse than that. The Court in rewriting the law in its image and providing a truly limitless sword of “Gist/Abstract,” have written a law that is void for vagueness.
Malcolm likes to pretend that there is NO problem whatsoever in the limitlessness and the NON-specified nature of “abstract.”
He does not even have the awareness of the problem of vagueness concerned with this principle t001 that the Court has fashioned to reach its desired ends.
He seeks only to mock those such as PatentBob that call attention to the very real problem that the unlimited sword can be wielded in a “whatever ends ANY particular judge may want to arrive at.”
He mocks by attempting to portray this as some type of “ALL claims must be ‘abstract,'” exaggeration when he should be realizing that it is not – and never has been – about such an “ALL.”
He mocks the fact that some of the claims struck down as abstract were stipulated to have passed the machine prong (which of course means that the optional method of “objective physical structure” could have been used with NO difference to the judicial outcome).
He obscures the fact that claims – as a whole – that clearly are understood to BE machines or manufactures are somehow now parsed and made into “abstract” machines and manufactures, based on some vague “Gist” that is left in the hands of ANY judge to arrive at.
He does not realize the historical parallel to what the Courts of pre-1952 had been doing likewise with “invention,” “gist of the invention,” “spirit of the invention,” or any of the dozens of other like terms that the courts used in the time frame that those selfsame courts had the power of common law evolution of the term “invention” granted to them by a previous Congress. This is the very power stripped from the judicial branch by Congress in 1952. Congress saw the mess the courts had made, saw that common law was just NOT arriving at a better and more clear definition of the term “invention,” and revoked that power from the judicial branch and in its place set up the law of 103.
All of these proper understandings of the means MUST BE in place when we are discussing the desired ends and – the critical issue – of were the ends reached by a court reached through proper means.
“anon” these proper understandings
Bow down everybody! “anon” has spoken.
He’s been wrong about pretty much everything up to this point but he’s a very serious person.
lol anon you are such a tattletale. Grow up. As if MM getting off the forum would make you any less wrong about everything.
Professor. Thank you for ignoring anon’s senseless pleas requesting that you sensor MM. I for one appreciate MM’s presence on this forum.
IMO, every process should have a result, and that result should be construed as a matter of law. That step will help narrow any kind of eligibility inquiry.
As to “abstract”, the dictionary definition neither excludes or includes any particular kind of invention, since lack of tangibility was not held in Bilski to automatically result in abstraction.
It’s not easy at all to predict how a case will turn out- esp. at the district level.
Martin Synder: As to “abstract”, the dictionary definition neither excludes or includes any particular kind of invention, since lack of tangibility was not held in Bilski to automatically result in abstraction.
That’s an obviously false statement. Even if the Court in Bilski held (incorrectly and readily reversibly) that something intangible could be eligible for patenting, the dictionary definition still plainly excludes subject matter from the scope of “abstract.”
Refresh my memory: did Bilski say anything about a claim to a novel structure or composition, wherein that structure/composition is described in objective structural terms that distinguish the claimed structure from prior art on that basis (i.e., on the basis of recited structure)? Did Bilski suggest that such a claim could still be considered “abstract”?
My memory is really really foggy on that issue. But you must have read the case very recently. What the Court say about claims like that?
It’s not easy at all to predict how a case will turn out- esp. at the district level.
Ah, the ever popular moving of the goalpost. I suppose it’s even “harder to predict” whether a licensee will bother to find a lawyer who is competent enough to make the easy 101 argument that tanks the claim.
That doesn’t change the fact that, in most cases, it’s a pretty straightforward analysis with a predictable outcome. Heck, just reading the preamble of a claim can often give you a pretty good idea of its chances of passing the test in Alice.
MM my “obviously false statement” that lack of tangibility was not held in Bilski to automatically result in abstraction is hard to square with this rather unambiguous passage from Bilski:
“The machine-or-transformation test may well provide a
sufficient basis for evaluating processes similar to those in
the Industrial Age—for example, inventions grounded in a
physical or other tangible form. But there are reasons to
doubt whether the test should be the sole criterion for
determining the patentability of inventions in the Information
Age”
For one example of an unpredictable outcome, see Genband US LLC v. Metaswitch Networks Corp. (E.D. Tex. 2016).
Or maybe this one:
Motio, Inc. v. BSP Software LLC (E.D. Tex. 2016)
Maybe instead of just cracking wise that the goalposts have moved, we should find briefed cases before the opinions issue and see just how many you (and me) can call ahead of the game.
The truth is that Alice is a fine test for patentability, but lousy for eligibility. The former is inescapably subjective and always will be, while the latter should be just as tight as it can possibly be. The test I propose would accomplish that tightening for computer and biotech inventions far better than the flawed Alice approach ever will.
May I suggest a slightly different approach Mr. Snyder?
Rewrite your piece in a different mode.
Make clear which parts are new and not a part of the law as it is today, where these new parts are identified as to what the drivers are, and set forth these as items that Congress could pick up and use.
As it is, you are simply steeped in the incorrect usage of terms of art and injection of different ways of thinking that show a lack of appreciation and understanding of the law as it is today.
Recognize the terrain for what it is. Recognize what are mountains of granite that you are trying to run through with brute force, and what are cliffs that you gallop over.
I “get” the result that you want to have. The problem comes from your thinking that the existing terrain does not matter in obtaining that result.
I have watched as your “thinking” has evolved and there is no comfort in watching the reaction of Malcolm (being Malcolm) as he att acks you for not following his herd.
A few specifics for you to (continue) pondering:
“while the latter should be just as tight as it can possibly be”
Why?
Do you realize that the front gate IS a wide open gate – and for the express purpose that innovation is just not linear, nor possible of being known a priori? You seem to want stringency at the very point that flexibility is required.
You have identified the weakness of Malcolm’s (and Ned’s) herd mentality of MoT – but you have not yet realized that human interaction is NOT off limits to the patent world. The safe guard that you seem to want really already is there with the safeguard of “claim as a whole,” and the all elements rule. The obfuscating argument of “parsing” as well as the canard of “at the point of novelty” seek to prey on the confusion of this point. You seem to have grasped in some small sense the realization of the weakness there. I invite you to continue growing and realize that it is only those claims that are totally in the mind that are off limits, and that there is nothing wrong – and plenty good – that can and should come from the fruits of the patent system that embraces human interaction as a part of claims that satisfy the Quid Pro Quo.
You have come some distance from your initial posts that sought to glorify the use of 101 as a “cheap replacement” for 103, while not even recognizing that the different sections of law have different purposes.
I congratulate you on noticing that difference – especially when it is a “favorite meme” of some of the most vocal anti-patentists to purposefully obscure those differences in their windmill chases.
It is still less of a “game” of calling ahead of the game, and more of a using the proper means to arrive at whatever desired result is to be arrived at.
I agree with the Bilski court that the gate should be wide open to new kinds of inventions. It should be as tight as possible for existing kinds of inventions because sheer weight of lawyering can get lots of junk thru the office, and hurt people badly once litigated, with no merit whatsoever. It’s better now, but not nearly good enough.
My views on software patents have evolved. I actually go further than most patent maximalists by suggesting that new, useful, non-obvious algos (i.e. pure information or “logic”) should be patent eligible. Human interaction within claims, TOWARD a result, is more than acceptable- its essential to enable certain inventions.
However, when the result of a method is processed information, and that information gains its utility by human consumption of the information, that result goes beyond what the patent system should be allowed to exclude.
It’s a bright, easy to find, non-negotiable line, and its been crossed to terrible effect for far too many people.
“Point of novelty” is not a canard. Patents presume inventions. The invention has to be somewhere- it has to be more than an easy or obvious next step from prior art. As for “Claim as a whole”, I agree, and that’s why method patents must have an identified result, construed as a matter of law- to encompass the whole of the claims.
I have never supported the pragmatic extension of 101 – I have described it. It can and should be fixed.
First point:
“gate should be wide open to new kinds of inventions. It should be as tight as possible for existing kinds of inventions because sheer weight of lawyering can get lots of junk thru the office, ”
you just stepped backwards with your attempt here to contrast “new kinds of inventions and existing kinds of inventions as a function of the front gate.
That function you reference was moved by Congress into the then newly created 103.
When you do not appreciate history, you prove yourself unable to learn from history.
Second point:
Your attempt to change how utility is viewed needs to be better presented. Like your other charging over the precipices without regard to the terrain, you attempt to brute force redefine how utility is viewed. Your attempt is an attempt in a vacuum that just does not exist.
Third Point:
Point of Novelty – as it is attempted to be used IS a canard. You may want it otherwise, but your attempt to not understand the terrain of why it is a canard is simply a terrible drawback for you. You should understand this terrain before you attempt to charge in here. It simply does not matter “where” in a properly integrated claim (read that as “claim as a whole”: already takes care of mere aggregations) ANY so-called point of novelty exists, because it is the claim as a whole that under the microscope. The canard portion is expressly derived from the attempted obfuscation and purposeful smudging of the clarity of law based solely on some desired philosophical ends.
Fourth Point:
Your last sentence carries an incorrect assumption. NONE of this discussion on my part has ANYTHING to do with “extension.”
The “extension” argument is a logical fallacy by those who simply do not want to give the full – and proper – weight to the words as chosen and written by the branch of the government that has been (solely) authorized to write the statutory law that is patent law.
Make no mistake, the legislative branch CAN share its authority with another branch – and under controlled conditions have shared that authority.
But that is simply a far cry (the means really do matter) from celebrating ANY ends – regardless of how “noble” those ends may be – that either comes from the improper means of improper delegation (say for example delegating to the executive branch powers that violate other existing constitutional protections for existing property rights) or for outright power grabbing of one branch of that power that has been rescinded (the judicial branch attempting to use common law power to set the meaning of the word “invention”).
Going Forward:
You are slowly coming to the realization that the rules of law DO in fact exist and that the Rule of Law – as laid down by the Constitution – binds every branch and that NO branch is above the law.
That is why I suggest that you redo your manifesto.
It is NOT that your ideas are “bad” in and of themselves. It is merely that you are still making blunders that can be – and should be – avoided because you still have some indifference (or possibly disdain) for the terrain.
My advice – as it as has always been is to appreciate and apply knowledge.
The notion that claims can ONLY be considered “as a whole” is meaningless. Claims are made of words. Each of the words may be construed. Sets of construed words make up elements of claims, and elements of claims are considered, together, to make up a claim. Claims are considered alone, and in combination. All of these examinations are intended to find, or exclude, an invention.
I am aware of the purposes behind the creation of 103. That purpose did not include any diminishing of what it means to have made an invention or discovery under the Constitution. KSR made this perfectly clear.
And as I have pointed out to you in the past, the question of Equity over Law has been settled for for almost 500 years. Ends matter more than means. That does not mean that any means are acceptable to reach any ends.
In the case of the misuse of 101, the ends do matter more than the means, but it would be better to use better means.
My advice to you is to drop the pedantry and victim blaming and understand just how many people have been harmed unfairly by your beloved, but broken system, which was broken by the rise of information technology and the usual destruction of self-discipline found in virtually every institution of our society.
There has always been patent abuse; there always will be, but the price has gone up, and it’s intolerable.
Your notion of “meaningless” is itself “meaningless.
You are again trying to act as if a vacuum exists, when no such vacuum exists.
Read again and understand that different sections of law mean different things. The canard comes from trying to insert aspects of novelty into portions of the claim, parse out the portions and only look at eligibility from a parsed viewpoint. I am NOT mixing ALL of examination into one view – like your reply indicates.
Your view and “understanding” behind the creation of 103 is contradictory. Clearly you do not understand if you think that this was separate from the court’s long standing unfruitful attempts to use common law to define invention. Your post here is proof in itself that you do not understand that which you claim to understand. KSR is inapposite to this. Anything in KSR that would attempt to speak to this is dicta at best, and does not compare to the words of Congress itself.
Your view of the mix of equity and law is not on point to this discussion. Even in equity, the means still matter. You are only “banking” on your own misunderstanding in a different area of law. You almost grasp this by your attempt to say “better means,” but you are just not there.
You then turn around and accuse me (again, and unjustly again) of “pedantry and victim blaming,” when I have engaged in no such thing. It is your feeling that there is unfair harm in the “broken” system, but that is ONLY your feeling. You simply want to overplay your feelings as to making the entire system be subjectively held to be “bad” because that it the way you feel. This type of subjective “bad” is meaningless. Issues of relative harm are addressed by Congress, and Congress has decided for this law.
As I suggested, you need to recognize this terrain and NOT de facto declare that because of how you feel all the terrain is a nullity. This is decidedly NOT the same as saying that you cannot voice your opinion on how to change it – I encourage you to do so, but also encourage you to do so effectively with the observations that I have made.
You are simply trying TOO hard to ig nore the terrain and contexts that you cannot ig nore.
There is a clear difference between your perception of anyone “victim blaming” and you playing the role of victim and saying because I am the victim, my views need to wipe out all context of existing law. What you personally find intolerable just does not make it so. Accusing anyone that disagrees with your feelings – especially when that person know the law and tries to tell you that your views are faulty for not recognizing the terrain of the law is more than a bit self-defeating.
I have never said that the system is perfect – nor that the system could not be made better.
But your manifesto F A I L s to reach that point and does so for easily avoided reasons that are still quite evidently bound up in your personal feelings of being a victim. It is just NOT victim blaming to point out to you that your feelings of being a victim excuse you of taking not account the terrain. It is imply NOT pedantry to point out to you that the terrain DOES exist and must be accounted for.
Believe it or not, I am NOT your enemy. Your enemy is in fact more so those that would “use” you and lead you astray because of your feelings of being a victim. They may “sound” as if the “noble ends” justify any means (and pretending to be in a vacuum is very much along the lines of “any means”).
Being able to tell you what you don’t want to hear does not make me a villain.
Others telling you what you do want to hear does not make them the hero.
Martin: The notion that claims can ONLY be considered “as a whole” is meaningless.
Of course this is correct, Martin.
Diehrbots like “anon” will never stop pretending, however, and they’ll never stop weeping about “claim dissection” and “conflation”. It’s really all they know how to do.
That was predicted, by the way. By me.
“anon” Point of Novelty – as it is attempted to be used IS a canard.
Ah, the Dierhbots and their zombie myths that refuse to die.
Meanwhile, every sane patent system in the universe will continue to compare claims to the prior art to determine the nature of the alleged inventor’s contribution. And that’s not ever going to change.
LOL – have not seen the “Diehrbots meme in awhile.
Tell me Malcolm, do you still think that case to have been wrongly decided?
Martin Snyder: we should find briefed cases before the opinions issue and see just how many you (and me) can call ahead of the game.
I’ve been doing that for years here, Martin, right up to the present. I’ve got a very good track record.
Welcome to the blog.
Martin: MM my “obviously false statement” that lack of tangibility was not held in Bilski to automatically result in abstraction
Martin, I’ve said it before and I’ll say it again: in spite of the presence here of some of the shallowest waders, you’re not in the kiddie pool when you comment here. If you want to play silly strawman-bashing games, do it over at Big G’s echo chamber.
If, on the other hand, you want to challenge something I actually wrote, you need to copy what I actually wrote and respond to what I actually wrote. Thanks. Since it seems difficult for you, here (again) is what you wrote:
As to “abstract”, the dictionary definition neither excludes or includes any particular kind of invention, since lack of tangibility was not held in Bilski to automatically result in abstraction.
And here (again) is what I wrote:
That’s an obviously false statement. Even if the Court in Bilski held (incorrectly and readily reversibly) that something intangible could be eligible for patenting, the dictionary definition still plainly excludes subject matter from the scope of “abstract.”
Do I really need to hold your hand even more firmly and walk you through this? Read my entire comment again. It’s important for you to understand the point if you expect me or anyone else to take you seriously.
The Supreme Court is not nearly as ign0rant as the s0ftware patent l0vers wish it was. You can dr00l all over yourself 24 hours a day with your “information age” baloney but that doesn’t mean the physical world and the structures (new and old) in it have disappeared or have become w0rthless. That’s never going to happen. You know it. I know it. Even “anon” knows it. The Supreme Court definitely knows it.
Time to step out of your bubble and wrap your head around that fact. Otherwise you’re just another chatterer without a clue.
“doesn’t mean the physical world and the structures (new and old) in it have disappeared or have become w0rthless. That’s never going to happen”
Talk about your (off point) strawman.
My comment about the importance of physical structures to humankind is directly on point to the discussion I’m having with Martin.
That discussion, as English-literate readers will readily understand, is about the continued and absolutely unassailed eligibility of claims to novel structures that distinguish themselves from the prior art in objective structural terms.
Those claims are not “abstract”. No court — and certainly not the Supreme Court — has even come remotely close to suggesting otherwise. For that reason alone, the g00fballs who come here and assert that “everything is abstract” are best ign0red. And, yes, “anon”, you’re definitely one of those g00fballs.
But we knew all this already.
Your post was a strawman because you fabricated out of whole cloth a position that no one has ever advanced only to knock that position down as if that made position had any consequence.
The emergence of the wave of innovation that is recognized as the information age simply does NOT dictate that physical items and structures would “disappear.”
Your faux argument merely serves as a segue to an equally faux view on one optional form of claim.
Or are you still pretending that such is more than just an option?
“anon” The emergence of the wave of innovation that is recognized as the information age simply does NOT dictate that physical items and structures would “disappear.”
Golly, thanks for repeating what I already wrote (except you left out the important “or become worthless” part — go figure).
Now, if you continue reading the discussion I’m having with Martin with an intent to understand you’ll realize that this point was made to focus Martin’s attention on the fact that regardless of how “important” information is today (for argument’s sake, let’s say it’s sooper dooper kooper looper important with a cherry on top!) it doesn’t change the fact that (SURPRISE!) physical structures are still really important. And there is nothing — absolutely nothing — in any of the Supreme Court’s patent cases to suggest that when they address the issues created by the claiming of “abstract” subject matter they are defining the term “abstract” to encompass claims to physical objects distinguished from the prior art using objective physical terms.
Got that? Gee, I hope so. It’s only lke the thousandth time I’ve said it in response to the sycophantic “everything is abstract” inanity that you and your cohorts continually spew here.
“(except you left out the important “or become worthless” part — go figure).”
?
How bizarre of you.
Even going along with your discussion with Martin, your comment is STILL a strawman – and for the very easy to understand and direct explanation in English that I provided.
It just does not matter that you are “using” that strawman in a conversation with Mr. Snyder or not – it remains a strawman.
…and you forgot to answer my question to you.
Here let me repeat it so you can be sure to see it:
Or are you still pretending that such is more than just an option?
I personally have an incredibly hard time counseling clients as to which claims will or will not be subject to a possible Alice rejection and/or court decision. I gave a presentation and preparation for the presentation asked attorneys here to evaluate claims under Alice, as I did. We got a mixture of patentable and not patentable under Alice, and these are for claims the patent office itself says are patentable under Alice!!
For instance, the PTO thinks this claim is patentable under Alice. All of us thought this claim was not patentable under Alice.
1. A computer-implemented method for halftoning a gray scale image, comprising the steps of:
generating, with a processor, a blue noise mask by encoding changes in pixel values across a plurality of blue noise filtered dot profiles at varying gray levels;
storing the blue noise mask in a first memory location;
receiving a gray scale image and storing the gray scale image in a second memory location;
comparing, with a processor on a pixel-by-pixel basis, each pixel of the gray scale image to a threshold number in the corresponding position of the blue noise mask to produce a binary image array; and
converting the binary image array to a halftoned image.
Now, I can make arguments for and against patentability of this claim, but I can’t decide which one would win (and note that this claim is based on a case that occurred BEFORE Alice and one that I think wouldn’t have the same result under Alice). And these claims occur all the time in patent prosecution.
I should also note that when I gave the presentation to a group of patent attorneys, there were yet more views as to whether this claim was or was not patentable under Alice.
It’s like I always say: Ask 100 attorneys for their opinions on a matter, and you’ll get 110 different opinions. 😉
But from being in the “trenches”, Alice is bad. To me, “concrete, useful, and tangible” or even “machine or transformation” made sense. Alice does not. I do not feel comfortable giving guidance for Alice.
Be prepared for the “advice” from Malcolm on your level of discomfort in giving advice on something that is inherently suffers from the void for vagueness syndrome.
Easily eligible under my test because the result of the method is information, and the consumer of the information is an image rendering system.
Now is it new, non-obvious, and fully described? That’s a more subtle question. The algo is a one-step comparison which is probably pretty obvious, and the coding to accomplish it is trivial.
baby steps, I suppose, are good.
(you do seem to be aware of the non-human factor of “consuming,” as the use of language that merely “sounds” in being human – but is not human – should be carefully noted and not [purposefully] obfuscated with any sense of the old Mental Steps doctrine)
(..and yes, that great word of anthropomophism applies)
😉
Machines really are not people – and do not obtain the same protections that people obtain. It is simply unhelpful to try to read claims NOT as a Person Having Ordinary Skill In The Art would read them and to try to read into the claims those things that are TOTALLY in the human mind. This is one of the very real dangers of “gisting,” of NOT taking claims as a whole.
Machines really are not people – and do not obtain the same protections that people obtain.
I don’t know what we’d do without you, anon.
All of your snark aside, DanH, you really should pay attention to some of what Malcolm attempts to foist that carries that very simple error of attempting to mix the human and the machine.
Well, the PTO dumbed down this claim for some reason. This is one of the “real” claims:
1. A method for the halftoning of gray scale images by utilizing a pixel-by-pixel comparison of the image against a blue noise mask in which the blue noise mask is comprised of a random non-deterministic, non-white noise single valued function which is designed to produce visually pleasing dot profiles when thresholded at any level of said gray scale images.
The pre-Alice case is Research Corporation Technologies Inc. v. Microsoft Corp., 97 USPQ2d 1274 (Fed. Cir. 2010). To me, this claim isn’t patentable under Alice, either. However, the invention was the part about the “random non-deterministic, non-white noise single valued function which is designed to produce visually pleasing dot profiles when thresholded at any level of said gray scale images”.
PB, that second version may pass the 103 inquiry under KSR.
I don’t know, but I think the eligibility of the earlier version claim should not even be a close question.
The second version would probably be ineligible if the result is construed to “produce visually pleasing dot profiles when thresholded at any level of said gray scale images”.
Under my proposed test, infringement can’t be from human consumption, but only arise from the rendering system performing the method.
The second version tanks anyway because what is “visually pleasing” is clearly indefinite under Nautilus et al.
“For instance, the PTO thinks this claim is patentable under Alice. ”
Nah, that’s just PTO incompetence bowing to the federal circuit’s “authority” on the matter. Obviously that case would have been decimated by the supremes.
PatentBob, image in, image out. What is there about this that is not patentable subject matter?
“It’s not easy at all to predict how a case will turn out- esp. at the district level.”
It usually takes me about an hour max to know what the proper legal result is, regardless of how often the DC courts would actually get that proper legal result. Especially if someone is on hand to tell me about the facts. Now, if you’re complaining about the incompetence of DC courts to decide the matter and get the right legal result, then that is a real concern.
“No, it’s not.”
Exactly.
I’m going to respectfully disagree with you there bro, it’s no crpshoot, the only problem with the Alice test is that it can be hard to dig up the abstraction etc. the applicant is so often burying (either intentionally or not). And of course that there will be close cases, like MM discusses below. But that’s the same as with obviousness so meh, that’s just how questions of law go.
“I want worthless patents on information killed off, and worthy ones validated.”
You mean you just want some certainty as to which of them are worthless and which are worthy? Because otherwise I don’t understand how you’re pre-judging which are worth something and which are worthless. As in, I don’t understand how you’re building that value determination into the law with your proposal.
“The test comes from defining the words “process” and “abstract” meaningfully, something which the courts have failed to do so far.”
Mmmm, I’m just going to disagree with you there. They’re defined meaningfully, very meaningfully. Invalidatingly meaningfully in fact for many claims. Abstract is just the normal usage of the word and encompasses anything that can reasonably be put within. Process is also just the normal use of the word.
“The proposed eligibility test requires that the information-consumer of a process-based invention’s result may not be a human
being.”
I skimmed the whole thing and don’t understand where this “test” came from, why it is being proposed, or anything of that sort. Unless we count “The simple elegance and universal human-rights orientation of this approach may help reestablish America’s leadership in protecting both freedom and the economic value of
information innovations in this still new Age. ” <the ending. Where that just apparently means "Martin et al. can tots make some money".
“tots”?
You must be pushing 30 or so, right, 6?
You think millennial vocab is going to magically change because we get older?
One can only hope…
“New Approach to Section 101 Analysis”
Let me guess, it’s one that allows all of the claims Martin tots wants!
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