Will the Walls Come Tumbling Down: Jericho v. Axiomatics at the Supreme Court

In a new petition for writ of certiorari, Jericho Systems has asked the Supreme Court to review its abstract idea test:

Whether, under this Court’s precedent in Alice Corp. Party Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014), and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012), a patent may be invalidated as an “abstract idea” under 35 U.S.C. § 101 when it claims a specific implementation and does not preempt other uses of the abstract idea.

Jericho Systems Corp v. Axiomatics – Petition for Certiorari.

The district court ended the case with a judgment on the pleadings – finding that the asserted claims of Jericho’s Patent No. 8,560,836 lacked eligibility under Alice and Mayo (focusing on claim 1 as axiomatic).

Using the ‘gist analysis’, the district court found that:

[T]he gist of the claim involves a user entering a request for access, looking up the rule for access, determining what information is needed to apply the rule, obtaining that information, and then applying the information to the rule to make a decision.

This is an abstract idea. The abstract idea being that people who meet certain requirements are allowed to do certain things. This is like Axiomatic’s example of making a determination if somebody is old enough to buy an R rated movie ticket.

Thus, finding that the claim encompasses an abstract idea, the district court moved to Step 2 of the Alice/Mayo analysis – and again sided with the defendant:

As al ready stated, [the claimed invention simply] uses standard computing processes to implement an idea unrelated to computer technology. It does not change [sic] way a computer functions or the way that the internet operates.

On appeal, the Federal Circuit affirmed in a R.36 judgment without opinion.  On this point, the petition cites Jason Rantanen’s recent post indicating that around 50% of Federal Circuit decisions are being resolved without opinion. Jason Rantanen, Data on Federal Circuit Appeals and Decisions, PATENTLY-O (June 2, 2016).

A grant of certiorari in this case would serve as a salutary reminder to the Federal Circuit about the appropriate use of one-word affirmances—which currently resolve over 50 percent of that court’s cases. Rantanen, supra (showing that the percentage of Rule 36 opinions in appeals from district courts has increased from 21 percent to 43 percent in less than a decade). If the Federal Circuit is content to allow district court opinions to effectively substitute for its own opinions at such a high rate, that practice should not be permitted to “cert proof ” issues that are otherwise cleanly presented and worthy of this Court’s review. Cf. Philip P. Mann, When the going gets tough . . . Rule 36!, IP Litigation Blog (Jan. 14, 2016) (arguing that the Federal Circuit relies on summary affirmance under Rule 36 to “sidestep difficult issues on appeal and simply affirm”).

One issue that the district court (and obviously the Federal Circuit) failed to address was that of preemption – what is the relevance of the fact that substantial, practical, an and non-infringing applications of the given abstract idea are available and not covered by the patent.  Petitioner argues that issue is critical to the analysis.  “[T]he lower courts regularly decline any discussion of preemption in favor of rote analysis of patent language at so high a level of generality that the claim language is rendered all but meaningless. This leads to the untenable result that patents—such as the one here—that do not preempt other uses of the alleged “abstract idea” at issue are nevertheless held to violate Alice.”

 

 

206 thoughts on “Will the Walls Come Tumbling Down: Jericho v. Axiomatics at the Supreme Court

  1. Looks like Axiomatics declined to respond. I guess they don’t think much will come of the petition.

  2. If section 101 did not exist, this patent would still be an utter failure for some combination of failing 102/103 and 112. In other words, you don’t need 101 to know that this mess is obvious, anticipated, and useless as a teaching or disclosure for someone trying to solve a specific problem a priori.

    But 101 does exist, and eligibility is thus inherently distinguishable from patentability.

    The current Alice test and this whole line of 101 jurisprudence is an unsustainable random walk because “abstraction” is entirely subjective and “inventive concept” is being litigated without use of the extensive body of doctrine and practice developed for 102/103.

    I disagree with MM that new, useful, fully described and non-obvious information/algos should not be eligible as “processes” under Section 101 merely because they are intangible. Therefore, I don’t believe that “abstract” for legal purposes is limited to intangibility, although all abstractions are intangible. The MoT probably can’t be the patent law of the information age.

    To fix the current doctrine, it needs to be recognized that “abstract” for patent purposes actually has two distinct meanings. The first meaning affects eligibility, and the second meaning affects patentability.

    At eligibility, the abstraction must be intrinsic to the invention-and yet cannot mean merely intangible because too many useful, new inventions rely on pure information for effect. Looking at the root of the word abstract, and it’s meaning in the world, I believe that the ultimate determination of an abstract idea occurs when information is consumed by a human being. Therefore, if the result of a process is information, and the utility of the information arises from human consumption, the invention should not be eligible for a patent.

    At patentability, an abstract idea something else entirely. An abstract patent claim is an expression of ideas that may not be patentable inventions based on a combination of lack of utility, lack of novelty, the lack of ability and/or low probability of one skilled in an identifiable, pertinent art to come up with the invention, or failure to describe the idea with enough detail to enable an invention or useful teaching.

    If KSR were faithfully applied, the kind of junk posted in this thread could go out on 102/103/ 112. Applying 101 is currently far more desirable because it’s early in a case and far cheaper, which solves a major, unremitting problem with justice and the patent system; the costs deny justice for everyone involved for all but the largest disputes. As of now, eligibility is seen as the threshold issue, but in an appropriate procedure, a baseline of patentability should also be a threshold issue, construed just as the terms of a claim are, ideally at the Markman stage, as the usual mixture of factual underpinnings of a legal question.

    This current case is straightforward to me: the invention is a method. The method results in information. The information is consumed by a computer. The method is patent eligible. The method is useless as a teaching and obvious because computers and people have been creating and using that kind of information for centuries, so the claims are an abstraction of an abstraction.

    Invalid, good day sir.

     My legal and historical background for these concepts can be found here

    I have it on good authority that there are 20 legal errors in the abstract alone. I welcome actual criticism.

    1. “Therefore, if the result of a process is information, and the utility of the information arises from human consumption, the invention should not be eligible for a patent. ”

      Why?

      If someone invents a machine that reliably picks the winners at Pimlico 6 hours before the race, or identifies earth crossing asteroids, from data fed into it from elsewhere, for example, why shouldn’t that be patentable?

      1. ALL utility (in the final analysis) is human consumption based.

        That’s just one of Mr. Snyder’s absolute failings.

        1. Everything is made of matter. Ergo all matter is patentable?

          Absolute failings? Do you make any sense to anyone?

          1. Do you make any sense to anyone?

            Absolutely.

            And that things are made of matter does NOT mean that ALL matter meets one of the statutory categories.

            Matter still needs the hand of man for it to fit into a statutory category (leastwise for the category that software fits into: a manufacture).

            You are still trying to fight a battle on terrain that you refuse to understand.

        1. Fine. If someone invents a process that reliably picks the winners at Pimlico 6 hours before the race, or identifies earth crossing asteroids, from data fed into it from elsewhere, for example, why shouldn’t that be patentable?

          1. someone invents a process that reliably picks the winners at Pimlico 6 hours before the race

            versus

            someone …identifies earth crossing asteroids

            Setting aside the fact that logic is ineligible for patenting and always will be (boo hoo for u), the great reason that the first method is ineligible to keep the PTO and the court system and the public free from endless reams of crxppy “maximize chance of winning bets” patents that advance precisely nothing in any useful art and, instead, encourage l0wlife attorneys and similary inclined speculators to race to the b0ttom with “monetization schemes.”

            Does it sound familiar? Gosh, it sure should.

            1. MM yes, winning at the track is not a useful art, but I’d like to answer Les’s point. Let’s substitute the picking the ponies process with a digital currency architecture instead.

              We don’t patent meanings- MM says we should not patent what he calls “logic” and maybe we should not the Platonic sense.

              Yet algorithms that control information processes with real-world effects can reasonably be understood as architectural structure. MM can deny that, but a great many jurists and professors don’t agree.

              The apparently intractable problem is defining when structure is meaningful for patent purposes as either a type of invention or a specific invention, rather than structure as an expression of abstraction as in the design of a novel or a social construct like “winning”

              Winning a horse race is a human social construct. The meaning is in a human mind. Likewise, using a token as a medium of exchange in the currency example is a social convention.

              However, if you have a truly new, non-obvious and fully described algorithm that helps manage digital transactions between non-human actors, those portions not consumed by humans should be patent-eligible. I can’t see why not under the current understanding of Section 101.

              anon, face it, you don’t have one legal argument against my proposal. I know you don’t or you would have used it already.

              1. anon, face it, you don’t have one legal argument against my proposal. I know you don’t or you would have used it already.

                LOL – I have only ripped you apart on the law for what? Years now? To say that I have provided no legal argument is beyond any sense of reason.

                Your proposal is a fallacy. I have not read beyond the abstract of your proposal because that was enough to show me how much fantasy you were engaging in.

                The major point – already shared immediately here with you here before your errant accusation – is that you just don’t get the patent landscape of utility. You seek a false distinction of “consumed by.”

                I will say this though: even though you say that I have brought no “legal points” to your attention, not only have I done so, you have actually “learned” some of those points and you reflect some of what I have taught you (the better path for you of course is to be polite and say “thank you”).

                For a few examples of tidbits that I was the one that impressed upon you:

                But 101 does exist, and eligibility is thus inherently distinguishable from patentability.

                [and yet, how much deliberate conflation do we see by those who supposedly know better (self professed attorneys, who want a different law based on their desired ends)…?]

                The current Alice test and this whole line of 101 jurisprudence is an unsustainable random walk because “abstraction” is entirely subjective and “inventive concept” is being litigated without use of the extensive body of doctrine and practice developed for 102/103.

                [you are almost there to the point of understanding what happened in 1952 with the creation of 103 and the move by the legislative branch (Congress) to remove a prior grant of power to the judicial branch to use the t001 of common law to set the definition of “invention.”]

                The MoT probably can’t be the patent law of the information age.

                [Again, almost there – MoT is NOT the law of ANY age – it is ONLY a clue]

                Applying 101 is currently far more desirable because it’s early in a case and far cheaper, which solves a major, unremitting problem with justice and the patent system; the costs deny justice for everyone involved for all but the largest disputes

                [Here, you are further off, as you once were closer with understanding that 101 CANNOT be a substitute for 102/103/112 – no matter how much more “convenient” that would be.]

                This current case is straightforward to me: the invention is a method… The method is patent eligible.

                [At least you see that (and not be like Ned who clenches tight his eyes to 35 USC 100(b) and what happened in 1952).]

                Yet algorithms that control information processes with real-world effects can reasonably be understood as architectural structure. MM can deny that, but a great many jurists and professors don’t agree.

                [Even Malcolm’s propensity for “objective physical structure” is an easily defeated fallacy, as a piece of software very well could be described in exacting “objective physical structure” in claims detailing every pit or demarcation on a physical item (your Beauregard claims in physical terms). The only thing this would do would to have a claim that is largely unintelligible to a human being covering tens or even hundreds of pages long – if you think you heard anti-software people whine before, you would REALLY here them whine if they got “what they wanted” with claims in “objective physical structure.” And remember as well, that this type of “writing” is exactly the type of writing that would pass the exceptions to the judicial doctrine of printed matter. See my very own easy to follow explication using simple Set Theory.]

                Next time, simply say “thank you” and here is my non-lawyerly suggestion for changing patent law.

                1. Like I said, you got nuthin.

                  There is no reason that “abstract ideas” cannot be reasonably held to mean “human consumption of information”, and the judicial exception for “abstract ideas” is on rock-solid legal ground.

                2. LOL – I have everything with the knowledge of law and history – and you have your fantasies.

                  You want ot make that claim of “on legal solid ground” again…? Are you going to say “with real names”…?

                  Please do – and please share those real names.

                  Otherwise, all you have is your own bleating – and we have seen your disconnections from the terrain of law.

                  You are still tripping all over yourself.

              2. I appreciate your desire to answer my question.

                However. You did not.

                I know you want to draw a line at “consumed by humans”. But everything we do is consumed by humans. The light from Edison’s bulb is “consumed by humans”. It is information consumed by the eyes of humans. Contained within the information is the location of the damn coffee table edge….without which our shins are otherwise gouged to hell.

                The cotton from the gin is also consumed by humans, as is Crestor, Lipitor and Viagra.

                ….and of course picking winners or predetermining outcomes is a useful art.

                So, why is consumption by humans a reason to make something ineligible for patenting?

                1. Les, a lightbulb is a manufacture. Ginned Cotton is a manufacture. Drugs are a manufacture. “Authentication” is a kind of information.

                  My rule is limited to information because all information is 100% abstract, but some information is new and useful. It does not apply to “consumption” of tangible goods.

                  Information consumed by humans is impermissibly abstract because it presents problems with other Constitutional rights when attempting to exclude its use, and because it means something different to every person.

                  Information consumed by non-humans means he same thing each and every time, because there is no “meaning” beyond the utility of the information and there is no abstraction. Ever straight mathematics- without human apprehension- is a different thing in the world.

    2. My lack of legal and historical background for these concepts can be found here

      Fixed your editing mistake for you, Mr. Snyder.

      I am also waiting for you to back up your rather arrogant “I-use-my-real-name” boast and supply those real names of attorneys that vouched for your “analysis” to be within the legislative and judicial domain to be implemented with the laws as they currently stand.

      (I have it on good word that Silence Dogood is waiting for those “real names” as well).

      1. If for kicks and shiggles I were to disclose names, which I never, ever would, what difference would it make? None, of course.

        All the time you waste; not a single actual argument about why the idea does not fit current law or doctrine.

        Maybe because you got nuthin?

        1. LOL – YOU are the one that made a brazen boast that you then turn around and refuse to back up.

          Let’s see you back up your hubris – or feel free to retract it.

    3. Martin:

      …new, useful, fully described and non-obvious information/algos should [] be eligible as “processes” under Section 101 [regardless that] they are intangible.

      Huh? Truly? The Supreme Court has twice held that math is like a law of nature. Such cannot be patented in the abstract. Adding that they be conducted on a computer adds nothing. Adding other inputs and output that are purely conventional, as to the source of data or where to store or display the numbers, adds nothing.

      What is remarkable that the PTO continues to issue patents on math, limited only by broad sources of data, trial outputs and that they be conduced on processors. Remarkable and tragic.

            1. anon, what you mean to say is that computer have inputs and outputs that can provide useful work under control of software.

              But simply using a computer to calculate math is not made patentable by calling the algorithm software.

              1. What I mean to say is exactly what I do say – and that is just not what you say that I say.

                Software is a manufacture by the hand of man defined to be a machine component.

                Software is not the thought of software.

                Software is not the execution of software. (emphasized so that you don’t miss it this time).

                Software is a “ware,” and for the Person Having Ordinary Skill In The Art, the “wares” of software, hardware, and firmware are equivalent in the patent sense (note for the goal post movers, this is not the same as “exactly the same as”).

              2. …and once again, let us disabuse you of your fallacy of “But simply using a computer to and remind you that you cannot skip over the first step and “just use” a machine that you first have to change by adding the machine component and manufacture in its own right of software.

                Repeating your error of trying to skip this item does not make your error go away.

                Remember, the proper patent doctrine that you should remember is inherency. Ask yourself of the computer – with NO software – inherently has ALL future improvements to the machine “already in there.”

                We’ve been over this literally hundreds of times Ned. Don’t you think that it is time that you treat these points that I present with some inte11ectual honesty?

                1. Software is not a manufacture. See Allvoice.

                  Software is not a machine component. Try googling “main components of a computer”. Note the lack of “software” making any of those lists.

                  Software and hardware are not equivalent in the patent sense. They do not process data “in substantially the same way” (Doctrine of Equivalents). Ask anyone who has designed digital hardware and authored software.

                  Altering the information stored in the computer (including the set of instructions for the computer to execute) is how you use a computer.

                2. Count Dobu – wrong an all counts (as usual).

                  Software is not a manufacture. See Allvoice.

                  That case just does not hold what you think it holds. I have already seen your Allvoice and distinguished it – I raise you an Alappat (en banc and controlling) and an In re Nazomi. (you not only lose – you are crushed).

                  Try googling “main components of a computer”. Note the lack of “software” making any of those lists.

                  Show me a list you are looking at.
                  Does it say “computer hardware components”?
                  Are you forgetting the part of 101 (any improvement thereof) with your focus on “main”….?
                  Just because a component is designed to be easily exchanged does NOT mean it is any less of a component. Quite in fact, the BOON of software is that the “ware” IS soft and thus easily exchanged. Quite in fact, the versatility that is essential to the modern age of innovation is that “software” is the single BEST component after your “main” (read that as standard) components, and the fact that no one piece of software must be “standard” only shows that each is an improvement of the standard machine. In other words, you raise a point that is in MY favor.

                  Thanks.

                  And make no mistake, hardware IS replicated as software and software can be devised in hardware – each of these are design choices which are IN FACT exchangeable to those In The Art. Which of course, highlights your next miss:

                  Software and hardware are not equivalent in the patent sense. They do not process data “in substantially the same way” (Doctrine of Equivalents). Ask anyone who has designed digital hardware and authored software.

                  You are treating far too narrowly the “substantially” portion. Let me ask me – and I have the answer, and it is not the answer you want. Sorry but those are the facts. Eppur si muove.

                  Also, look up the MathS view – I will bet that you never chased down the writings PoIR over at Techdirt, did you? Even though I informed you of that lead what, more than a year ago?

                  Then we come to:

                  Altering the information stored in the computer (including the set of instructions for the computer to execute) is how you use a computer.

                  This is your most obvious
                  F
                  A
                  I
                  L

                  Try the Grand Hall experiment. You first have to change a machine by re-configuring the machine WITH the machine component called software BEFORE you can use it.

                  “How you use it” is necessarily limited by the components at hand. The proper patent doctrine that you need to recognize on this point is the patent doctrine of inherency. DO you even have an inkling of what that doctrine means?

                  Hint: it means you lose – you have tripped into the House/Morse fallacy. The quip of “all computers are the same” belies the plain fact that an improved machine is quite different from an unimproved machine (the House part according to the false logic of the TV show House). The plain fact of the matter is that NOT all future improvements are “already in there” (the Morse part).

                3. Anon,

                  Your short script is showing. All your oft-repeated misinformation. Fine, let’s dance this dance once more.

                  You failed to distinguish Allvoice.

                  A one-vote majority in Alappat claiming that software magically transforms computers between being general-purpose and special-purpose is hardly the “crushing” blow you seem to think. And Judge Rich’s mistake is being chipped away, year by year, case by case.

                  Nazomi does not hold what you think it holds. The ARM processor in Nazomi is distinguisihable in that it was deliberately designed to make some hardware circuits inaccessible in the absence of particular enabling software. This one instance of software creating a “new machine” is not applicable to the general case.

                  I am not crushed, you are delusional.

                  So look at the lists of computer components that don’t say “hardware”. See how many include “software” as a component. If any. And you think that lack proves a point in your favor? Delusional.

                  If you think hardware and software perform in “substantially the same way”, then you belong with the nay-sayers mocking Galileo. “Eppur si muove” – your self-aggrandizement is laughable, as usual.

                  And your championing of PoIR is your most laughable, remarkable

                  * F * A * I * L * .

                  I have admired PoIR’s writings since the Groklaw days. I would read them the same day they were posted. He wrote extensively about how software is math, and provided tutorials on lambda calculus that were targeted for an audience of legal professionals.

                  In fact, here’s a quote from PoIR on your beloved Alappat:

                  My view as a computer professional is that we can answer the issue in front of the court just by looking at the circuit. It does arithmetic calculations and produces numeric answers. Arithmetic and numbers are clearly mathematics.

                  groklaw.net

                  And your usual Horse/Mouse shenanigans with the word “improvement”. Not even worth (yet another) response.

                4. Your short script is showing. All your oft-repeated misinformation. Fine, let’s dance this dance once more…You failed to distinguish Allvoice.

                  Not at all and wrong on all counts yet again Count.

                  I HAVE distinguished Allvoice and even provided you TWO case cites to your supposed one.

                  My “script” is not a script, and it is not short.

                  I have provided NO misinformation.

                  You seem to want to dance an odd dance my friend – full of accusing me of that which you do. Playing “the mirror” does not work for you because you have an obvious shortfall in that you do not understand either patent law or the reality that the Grand Hall experiment so easily shows.

                  A one-vote majority in Alappat claiming that software magically transforms computers between being general-purpose and special-purpose is hardly the “crushing” blow you seem to think. And Judge Rich’s mistake is being chipped away, year by year, case by case.

                  It is not a “mistake” and there has been NO “chipping away.” Further – it is the opposite of what you claim as far as that “magic” goes, as it is YOUR “version of reality that would force a “magic” to have to happen in that somehow – by magic – ‘old box’ has this mysterious new ability which was not there previously. THIS is exactly why I suggest that you use the patent doctrine of inherency.

                  And your usual Horse/Mouse shenanigans with the word “improvement”. Not even worth (yet another) response.

                  That’s pretty funny as you have NEVER provided a response on point to the “shenanigans” (of which it is evident that you are playing shenanigans with messing up the names). Amateurish comedy is no substitute for you even once taking on the point presented.

                  Nazomi does not hold what you think it holds…This one instance of software creating a “new machine” is not applicable to the general case… I am not crushed, you are delusional.

                  It is applicable and you are crushed – and delusional to think otherwise. I need but one example to blow your premise out of the water. There is your equivalency. Deal with it.

                  So look at the lists of computer components that don’t say “hardware”. See how many include “software” as a component. If any. And you think that lack proves a point in your favor? Delusional.

                  Not at all – I note that you did not do as I ask. Instead you merely attempt an insult. Your attempt is empty and meaningless.

                  If you think hardware and software perform in “substantially the same way”, then you belong with the nay-sayers mocking Galileo. “Eppur si muove” – your self-aggrandizement is laughable, as usual.

                  No self-aggrandizement, and I certainly am not the nay-sayer ignoring reality here ( that would be you).

                  And your championing of PoIR is your most laughable, remarkable…I have admired PoIR’s writings since the Groklaw days. I would read them the same day they were posted. He wrote extensively about how software is math, and provided tutorials on lambda calculus that were targeted for an audience of legal professionals.

                  LOL – another great moment in your own failure for what I reference PoIR for: MathS as a philosophy. You ignore the point you do not like (EASE of equivalence) and you do not GET that what the “champion” effuses about is a philosophy. He is one of the greatest failures of anti=software patent muckery because he cannot understand the very basic difference between math and applied math – and that applied math has ALWAYS been patent eligible. The quote and view of Alappat shows that he just does not get it – confusing “does” – the execution – with something that IS.

                  As I have pointed out: the execution of software is not software.

                  You have to understand THAT basic difference to even begin to talk intelligently on this topic.

                  You are not there yet.

                5. …as to Allvoice, let me repeat one of the distinguishing points:

                  That case is marred by the procedural aspects and what THAT applicant stated. JUST AS WITH statements of what is prior art, the applicant’s statements are held against the applicant – whether they are true or not. The important thing here son, is context, legal context – and not the sound-byte that you want to apply.

                6. …and as for PoIR, one can tell the lemmings that follow that philosophical clapCR@P – they are easily misguided and only too readily march right off the cliff.

                7. And now we’re at the “No I don’t, YOU do!” step of the “anon” short script. How tiresome.

                  You keep claiming to have distinguished Allvoice, but you just keep getting it wrong.

                  It was the petitioners who tried to get away with the flawed argument that “software necessarily implies hardware”, and the court slapped them down. But that doesn’t stop you from railing about “thought” or “execution” of software, trying to coerce all who will engage with you to bend to your will, and ignore how the word software is used by an entire worldwide industry, just because you so desperately need software to be a computer component. News flash: it’s not. We do not yield. Eppur si muove.

                  I gave you the means to gather over 100 million lists of what everyone but you considers the main components of a computer. You demand I pick out something from the list for you? Okay, I pick the first 1 million lists. Knock yourself out.

                  Your ONE example is distinguishable in that it ONLY applies to the specially-made processor that is the subject of Nazomi. Not crushed. And you’re getting your arguments mixed up, Nazomi was about “new machine”, not “equivalency”. Delusional.

                  “you have NEVER provided a response on point” — good grief. I have, over half a dozen times, and I grow weary of your repeated prevarications. Or delusions. Take your pick.

                  And I can’t help but laugh — you’ve been praising the writings of PoIR for, what, over a year now? And suddenly he’s chopped liver. Fickle much?

                8. And now we’re at the “No I don’t, YOU do!” step of the “anon” short script. How tiresome.

                  And it is tiresome that you play your mirror games.

                  You keep claiming to have distinguishedAllvoice, but you just keep getting it wrong.

                  Except I do not. I have replied with an additional distinguishment this time. And with not one (controlling) but with two case cites. I see what is really so tiresome for you.

                  It was the petitioners who tried to get away with the flawed argument that “software necessarily implies hardware”, and the court slapped them down.

                  IT was the petitioner’s flawed attempt – after already bungling on the record – a record that is held against that singular person. As I pointed out, when an applicant states something on the record – it is held against them – think about the “admission” of something being prior art (when it is not in fact prior art).

                  But that doesn’t stop you from railing about “thought” or “execution” of software, trying to coerce all who will engage with you to bend to your will, and ignore how the word software is used by an entire worldwide industry, just because you so desperately need software to be a computer component. News flash: it’s not. We do not yield.Eppur si muove.

                  First – you are using the Eppur si muove phrase incorrectly.

                  Second your “will” is not the will of PHOSITA, but rather it is merely the song of the lemming march.

                  Third, It is not I that needs anything – I merely reflect what is (a proper application of Eppur si muove).

                  Fourth, I ignore nothing about “what the entire industry” does – I DO understand the ease of language – but I also DO understand the reality that execution of something is different than the objective something. I DO understand the reality that the thought of something is different than the objective something. “This is not a pipe.” And I do understand (unlike you) that law is involved here – not just some phantastical philospohiscally driven SEGMENT of industry who cannot get out of their own way up Lemming Hill.

                  I gave you the means to gather over 100 million lists of what everyone but you considers the main components of a computer. You demand I pick out something from the list for you? Okay, I pick the first 1 million lists. Knock yourself out.”

                  You choose to hand wave. How nice for you. You did not notice then the question I put to you. GO back and notice, as your handwaving is entirely inconsequential.

                  Your ONE example is distinguishable in that it ONLY applies to the specially-made processor that is the subject of Nazomi. Not crushed. And you’re getting your arguments mixed up, Nazomi was about “new machine”, not “equivalency”. Delusional.

                  Not at all – You missed Alappat and the controlling law as to what happens and makes ALL processors “special” when those processors have been changed – as MUST happen prior to ANY attempt at “just use.”

                  “you have NEVER provided a response on point” — “good grief. I have, over half a dozen times, and I grow weary of your repeated prevarications. Or delusions. Take your pick.

                  Except not – name calling and clutching your own errors are just not on point responses to the points that I have provided.

                  And I can’t help but laugh — you’ve been praising the writings of PoIR for, what, over a year now? And suddenly he’s chopped liver. Fickle much?

                  Once again – you miss the point of exactly why I reference the writings of PoIR. Read my last response which explains that I am using his mantra of MathS against the lemming mentality. Then see – as I have always maintained – that you need to recognize the difference between math and applied math.

                  You have NOT done these things yet. Instead, you hunker down in lemming mode and keep marching up your hill.

      1. “What is remarkable that the PTO continues to issue patents on math, limited only by broad sources of data, trial outputs and that they be conduced on processors. Remarkable and tragic.”

        So if it were a narrow source of data you would be ok with it?

  3. Dennis, would it have been so hard to reproduce some of THE CLAIMS at issue, so we can judge for ourselves the reasonableness, vel non, of the judge’s “gist” analysis? Yeah, I know, there’s a link to the patent, but still…just because SCOTUS has resuscitated the habit of ignoring what the claims actually say doesn’t mean you should go down that rabbit hole.

    1. Atari Man,

      I think that you have a sense of a presence of a rabbit hole, but I think that you are not going to avoid tumbling down that rabbit hole if you too want to see the claims and apply the “Gist” technique yourself.

      The “Gist” (or apparently the ‘politically correct’ phrase of “directed to“) IS the rabbit hole.

    2. Atari Man –

      1) Much to his credit, Dennis included a link to the Google display for the patent in the article. On that page all the claims are displayed and there is a button provided to download the patent.

      2) I pasted claim 1 at 2.4.

  4. DC: Will the Walls Come Tumbling Down

    Nope.

    This has been another edition of straight answers to simple questions.

    But let’s walk through this incredibly junky claim and have a laugh or two, shall we?

    Before we begin, let’s first acknowledge two basic facts.

    First, patent claims are either eligible or they are not eligible. A lack of eligibility of the patent claim doesn’t mean that a real-world machine or method doesn’t (or can’t) exist in the material world. And it doesn’t mean that machine or method is devoid of use. What the lack of eligibility does mean (depending, of course, on the reason for ineligibility) is that the claimed machine or method is f@tally lacking in the recitation of the sorts of novel structural or novel physical transformations that our patent system was designed and intended to protect and promote.

    Second, patent claims in certain “arts” — particularly the so-called “computing arts” — are drafted by lawyers who go to great lengths to obscure the fact that “new” logic is a quintessential example of an abstraction that is ineligible for patenting. Typically that obfuscation is achieved by either larding the claim up with excess verbiage or using jargon that is “structure-esque”to impart physicality to the ineligible abstractions (e.g., in the same way that “new” and useful sentences or arguments might have “beginnings”, “middles” and “ends” — so what? they’re still ineligible). Of course, a combination of these obfuscating t0ols may also be utilized.

    Okay, now let’s proceed to the claim.

    1. A method to process authenticated user requests to access resources, the method comprising:

    We can stop right there and pause for a moment because the red flag is already flying up the flagpole at warp speed. “Authenticating?” The status of being deemed “authentic” is itself an abstraction. There’s no objective measure of “authenticity” such someone can look at something and say “This is authentic” or “this isn’t authentic.” Consider: is this comment “authentic”? The “correct” answer is completely dependent on abstract logical rules that people are free to arbitrarily apply as they wish (and people do that, all the time, every day). So already this junky claim (and every claim like it) is in serious trouble.

    Everyone will also recognize, and it should go without saying, that people have been “authenticating” requests to “access” stuff since as long as people have been on the earth. How did (and do) people perform that task? They use ever evolving infinitely adaptable rules and logic, of course, and they apply those rules and logic to the request based on information (wait for it!) about the request and the requestor. This elementary fact of life presents an additional huge problem for our super genius patentees. After all, the patentees didn’t invent programmable computers, which — as everyone also knows — are merely t0 ols for automating ineligible logical processes.

    So let’s see the rest of this awesome logical process that these junk patent w0rshippers are crying about all the way to the Supreme Court:

    receiving from a user a request

    LOL. Yes, well, that’s usually how it begins. Well done, scriveners! Juice up the claim with needless verbiage! It looks so much “bigger” that way. And bigger is usually better (at the PTO, at least).

    to perform an action on a resource;

    Oooh! There’s an “action” in the claim! On a “resource”! Simple minds may find themselves confused already. The rest of us will appreciate the fact that (1) this “action” need never be performed and is irrelevant to the claimed “innovation” and (2) the “resource” is information. Yup. More problems for our brilliant “innovators.” But they’re very serious people! They have a Supreme Court case! There must be some meat here, right? So let’s soldier on.

    receiving, by a server, a rule associated with the action, wherein the server comprises a processor and operatively associated memory

    Ah, so we’re in the mystical magical realm of super techn0 “do it on a comp00ter” stuff! Whoo hoo! It’s like rocket science except without the rocket and without the science. Yes, folks, comp00ters are sometimes called “servers” and, yes, they comprise “processors” (for computing — w0wee z0wee!) and memories. That’s all ancient stuff. But our scriveners needed to recite that just in case anybody forgot (riiiight). As for the “rule associated with the action”, that’s just more abstraction. “Associated” with? Is that a covalent “association” or an ionic “association”? Just kidding! The correct answer is that there’s no “association” other than in the abstract sense that a “rule” exists which our ancient rule-applying t0 0l (i.e., the comp00ter) is going to be apply to process requests for particular “actions”. As noted above, all this “rule applying” is just ancient (and ineligible) logic, as old as civilization itself.

    determining a plurality of attributes required to evaluate the rule;

    More logic! The claim is poorly written (to say the least) and here it seems to suggest that our rule-applying t0 0l (i.e., the comp00ter) is at some point going to use l0gic (and rules) to “evaluate” the “received” rule (remember that “rule”? it’s the “rule” that was “associated” with the “action” that was requested by the user). But that’s not what happens. It’s the “request” that will be “evaluated.” Setting the gaping drafting incompetence aside (after all, this is a Supreme Court case — LOL), what we do know is that the comp00ter will “determine” at least two “attributes”. Now, as written, this clause would seem to refer to “attributes” of “the rule” but a quick glance at the h0rrifically written specification reveals that the “attributes” are “attributes” of the user (e.g., “safe” or “dangerous”) or “attributes” of the resource that is the object of the request (e.g., “safe” or “dangerous”). Oddly, the claim doesn’t bother to tell us how the comp00ter makes this “determination” but presumably the comp00ter is going to … apply rules and logic to make that determination (remember, kids: that’s what comp00ters do!).

    And now at last we’ve come to the most amazing part of the “innovation.” You probably want to sit down for this because your mind will be blown.

    classifying at least a portion of the plurality of attributes by connector, wherein each connector is in communication with an associated remote data source comprising values for attributes classified with the connector;

    We’re going remote! We’re going remote! Oh my goodness nobody could have seen that coming. Yes, children, comp00ters can be connected remotely to each other, and each of those comp00ters can be provided with rules (!) about how and when to process data that one or the other comp00ter (or both!) has received or transmitted. And the timing and providing of those rules can also be governed by rules! And the providing of the rules to provide the rules can also be governed by rules! And it can all be done remotely! Or not. Oh my oh my it’s enough to make an eight year old’s head explode.

    So what is our s00per awesome comp00ter going to do? It’s going to look for those “attributes” that it previously “determined” that it needs. Now, if you’re looking for details about “attributes” so you can apply a “rule” that you received, where are you going to look? Well, gee whiz, why not ask the source of the “rule”? Seems reasonable, to say the least. Beyond that, it’s something that pretty much every rule-receiving human has done since the beginning of time because … reasonable. Like “no d u h” reasonable. Like “why would anyone waste time even discussing it” reasonable.

    for a first portion of the plurality of attributes classified with a first connector:
    for each of the first portion of the plurality of attributes, determining whether an attribute value for the attribute is present at the server;

    Whoa! Nobody could have predicted that. But wait: there’s more! What if the server which provided “the rule” doesn’t have the “attribute value” that is “required” to apply the rule to the user’s request? What then? Self-destruct? The comp00ter sends a prayer to the Pope? The comp00ter shows a 3-D animated movie to “the user”? Or maybe an advertisement!

    Or maybe … just maybe … look elsewhere! Can you imagine? Try to believe it, folks:

    ge nerating a first connector request, wherein the first connector request comprises each of the first portion of the plurality of attributes that lacks an attribute value at the server; and requesting attribute values for each attribute included in the first connector request, wherein the requesting takes place via the first connector and is directed to the remote data source associated with the first connector;

    That’s some s00per d00per techno right there. Why, you almost need a fancy fl0w chart to figure out what’s going on! A decision tree or something (hey, maybe these guys should have applied for a plant patent … because “tree”!).

    And last but not least, the wrap up:

    evaluating, by the server, the user request to determine whether the user is authorized to perform the action on the resource, wherein the evaluating comprises applying the rule considering the values for the plurality of attributes; and

    returning an authorization decision.

    Yes, we all knew that was coming just from reading the preamble. So now that we’ve bl0wn through all the scrivening g@rbage, let’s just summarize what’s going on, just like the patentee did when he/she wrote the specification. The method requires receiving a user’s request for access and receiving “a rule” for determining whether the user’s request is authorized. To apply the rule, you need to get info (“attributes”) about the request and/or the user (when isn’t that the case with authorization rules?). You get that info from the source of the rule or from some other source. That’s it.

    This isn’t the “gist” of the claimed “innovation.” It is the claimed “innovation”, just rewritten to eliminate the fancy techn0 terms and redundant silliness that the patent attorney baked into the claim. And it’s abstract ineligible cr@p. Good riddance.

    This cert petition is d.o.a. Thanks for the laughs, though.

    1. As others have noted, the patentees who are petitioning here are cl ueless are pounding the strawman of “pre-emption.”

      You can’t take an ineligible abstraction (e.g., apply rules to decide whether something is “authorized”) and make it eligible by larding the claim up with “use a computer” bal0ney (and that includes “use remotely connected computers” bal0ney or “use a mobile computer” baloney or “get some info for applying the rule here and some other info there” bal0ney) or any other ancient bal0ney.

      Quite frankly, just as is the case with the most vociferous defenders of junk like this, you really have to wonder: do these people think everyone else was b0rn yesterday, or are they just t00 st0 0pit to figure this stuff out? Or both? If it’s not one of those, then we’re left with ridiculously greedy, entitled, and dishonest hacks. And we know that there’s sooooo few of those in the comp00ter patent biz … LOL

    2. From their laughably jargon-bloated website: Jericho Systems provides … externalized authorization

      Wowee zowee! Super impressive stuff. ROTFLMAO

      Jericho Systems makes customized content decisions during every transaction; online, in-store, and over the phone.

      What? No customized content decisions during a transaction by snail mail? Why not? Oh, I guess that’s included in “every transaction.”

      Of course, if the term “every transaction” shows up in the prior art, you can bet your life that Jericho Systems will do backflips pretending that the art couldn’t possibly include the s00per techn0 “transactions” that they’re trying to tie up with their ridiculous junk patents.

    3. Yay for Malcolm (once again) attempting to make an issue out of his FALSE legal propositions.

      Namely: “the claimed machine or method is f@tally lacking in the recitation of the sorts of novel structural or novel physical transformations

      He doubles down on his usual “objective physical structure” optional claim format somehow NOT being optional with a token to the 9-0 defeated MoT as a law instead of a clue CR@P.

      Everything else he wrote is out the window because he insists on building his tower on a foundation of sand.

      1. If you’re suggesting that this junk claim is eligible, “anon,” I’d love to hear you make the argument. Jericho needs your deep wisdom and insight! So let’s hear it. You’re a very serious person, after all. Just step up and defend this ridiculous junk and make your c0h0rts proud.

        As for this “tower”, I’m not sure what you’re referring to. I’m not interested in building a tower. I’m very interested in tearing one down, however, for great reasons that are shared by many reasonable people.

        That “tower” is the “tower” of computer-implemented junk patents. That “tower” wasn’t built on anything remotely as solid as “sand.” It was built instead on the proposition that information and logic is “the essence of electronic structure”. And that “essence”, as we all know, was pulled out a judge’s behind. Some foundation!

        Let’s watch it some crumble some more. That’s the one thing that’s absolutely guaranteed, of course: the tower of computer-implemented junk is going to continue to crumble. It might collapse catastrophically (which would be awesome) or it might teeter this way and that, dropping bricks by the ton-load until it’s reduced to a chicken shack. But it’s going to continue crumbling. And the patent system and everything associated with it will be better off for that.

        And all this was predicted many years ago.

        [shrugs]

        1. I am not suggesting ANYTHING about the claim.

          I am suggesting exactly what I stated: YOUR handle on the law is deficient.

          I do not need to even begin to defend ANY claim to point that out.

          1. am not suggesting ANYTHING about the claim.

            Another winning strategy for you!

            Simply ignore how your legal fantasies relate to reality and to the actual fact patterns that will routinely be presented, thousands of times over. What could possibly go wrong?

            LOL

            1. Maybe you should start with an understanding of the law before your “dive” into the rye fields and talking about ANY particular claims.

              Understanding the law is NOT how you are attempting to spin it here as some type of “legal fantasy” – it is quite the opposite.

              (and we both know why you have an aversion to the actual law, don’t we? Reminds me of your volunteered admissions against interests pertaining to the exceptions to the judicial doctrine of printed matter – the actual law is just too darn “inconvenient” for you and your short scripted rants)

                1. LOL – that figures that you would nod off when the important stuff is at point.

                  Watching over those fields of rye must be tiring work for you.

                  Do’h! (said in the best Homer Simpson tones)

                2. Wake me up when you start babbling about “Chamberlain” like you used to every day. That was funny.

                  It’d be sad if I had to go to IP Crockdog to see you do the full Vegas act.

                3. I shouldn’t have to wake you up while you chose to doze when the important topic of the actual law is at hand.

                  Maybe try less dissembling and try more to be awake, aware, and on point concerning the law.

                  (I realize that is not on your short script, so I will not be holding my breath)

                  …and why are you 0bsessing over Quinn again…? Most odd.

    4. The one thing in the claim that may have tended to define patentable subject matter (“determining a plurality of attributes required to evaluate the rule”) was stated at such a high level of abstraction that it could essentially be anything. Now, if the determination required the requestor to recite a phrase, and the claim required novel apparatus to listen to the requestor to identify him, then we might have had something.

      This kind of claim also illustrates why software claims cannot be effectively examined. They are use non standard language throughout so that the same thing might already be disclosed elsewhere and described using entirely different language.

      1. “This kind of claim also illustrates why software claims cannot be effectively examined. They are use non standard language throughout so that the same thing might already be disclosed elsewhere and described using entirely different language.”

        Ned, the same could be said of any claim, such as a mechanical claim, for example.

        A DEVICE FOR REGULATING A FRICTION TRANSMISSION OF VARIABLE VELOCITY RATIO, THE DEVICE COMPRISING A TUBE FORMED WITH A SLOT EXTENDING ALONG THE TUBE, A SUPPORT SLIDABLY AND CIRCUMFERENTIALLY MOUNTED ON THE EXTERIOR OF THE TUBE, A ROLLER ELEMENT CARRIED ON SAID SUPPORT AND WHOSE MOVEMENT CHANGES THE VELOCITY RATIO OF THE TRANSMISSION, A ROTATABLE SCREW DISPOSED WITHIN THE TUBE AND EXTENDING ALONG SAME, A NUT THREADED ON THE SCREW, AND MEANS CONNECTING SAID NUT AND SAID SUPPORT THROUGH SAID SLOT.

        Sorry about the caps. Their Google’s not mine.

        link to patents.google.com

        What the heck is a friction transmission? Something the transmits friction? Whats a means for connecting a nut and a support through a slot? Whats a roller element? Is that what their called in the Granger catalog?

        What about this functional doozy: A ROLLER ELEMENT CARRIED ON SAID SUPPORT AND WHOSE MOVEMENT CHANGES THE VELOCITY RATIO OF THE TRANSMISSION.

        …this is just the first one I looked at after searching for “transmission”.

        so…. you know….

        1. “What the heck is a friction transmission? Something the transmits friction?”

          Um nah bro, a friction transmission is simply an occurrence of when friction is transmitted.

          Set everything else you’re talking about aside, it is still a transmission, and can easily have a decent search performed upon it in the “transmission” subgroups/classes. Try classifying the instant claim MM is talking about. Where does it go? In the “software authorization” sub-group? lol does that even exist?

          1. subgroup? you donneednostinking subgroups. You’re doing computer searches.

            You search for user authorization rules remote data source, or some such.

            If you need subgroups, you develop them. Computers have been around since, what, a coupla days after Roswell? 60, 70 some years? Maybe its time to get your act together PTO…

            1. You search for user authorization rules remote data source, or some such.

              Yes, but this claim has attribute values classified at a connector.

              And they’re used to evaluate a rule. Oops, I meant apply a rule. Except when I wrote the claim I didn’t say it that way the first time. Totall unintentional! Not trying to kick up dust or confuse anybody, especially an Examiner. Why would I do that (other than to make money and spout off about “presumed valid! presumed valid!”)? Seriously: why?

              That’s why I defined all the terms in the claim and provided examples of the simplest concrete embodiments and the simplest instances of logic processing that fall within the claims’ scope. Oops! I take that back. I didn’t define any of those things. They just kinda show up in the claims. And my examples are worthless.

              But it’s all good. Thanks to us, your data is totally safe. That wasn’t true before. You can trust us.

              / B0 z0 the Innovator off

            2. “If you need subgroups, you develop them. Computers have been around since, what, a coupla days after Roswell? 60, 70 some years? Maybe its time to get your act together PTO…”

              Sure thing, but they’ll still be just as woefully inadequate as the ones that we would have had in the 60’s or 70’s, because softiewaftieware isn’t tethered to the same kinds of constraints that normal subclasses are. You’re right that we could make one, and then what? It’ll have a million refs in it in a few years? lulz.

              You’re right we don’t need such subclasses, because we shouldn’t even be in the business of examining such things in the first place. But, you guys are dead set on having us do so.

                1. Don’t use East or West. Use Google.

                  Because it’s impossible to make up new data processing jargon that avoids relevant Google hits.

                  You guys really are a crack up.

              1. Ah it actually is one of those odd drives that Ned found below. Interesting old timey gadget. It is indeed a small device to regulate such an engine.

                still:

                #anonfailedphysics

                1. You figure out that you were the one wrong, and you STILL want to claim I failed…?

                  Too funny (and not in a good way)

                2. “STILL want to claim I failed…?”

                  Failing your physics classes isn’t the same thing as your viewing ned’s googling a term.

                3. Your accusation is entirely out of place.

                  It isn’t about “googling Ned’s whatever – it’s about you being a schmuck and reacting poorly when I noted your buff00nery)

                  (and I bet I know far more about physics than you)

                4. “and I bet I know far more about physics than you”

                  Lulz, do ya now? For how much do you bet that?

                  #makingmoney

              1. I don’t think that he was “joking” (his follow-on note shows that he was NOT joking), and even if he was, that type of “joking” is a blight due to its consistent (and consistently off) nature.

                No thank you to your advice of “lighten up.”

                1. Sigh.

                  In the first paragraph, he jokes and uses transmission in the sense of a radio transmission. …. the occurrence of a transmission of friction.

                  In the second paragraph he uses transmission in the mechanical device sense and provides a legitimate response to my post.

                  …. I didn’t really expect you would take the advice… but I’ll repeat it any way.

                  link to youtube.com

                2. The two posts (not paragraphs) are NOT as you would have it – he actually DID mean his first post – just look at how he reacted to my post in between his two posts (the “Nuff said” post).

                  Your advice is off kilter.

                3. One Post at 6.4.2.2, two paragraphs, quoted here:

                  “Um nah bro, a friction transmission is simply an occurrence of when friction is transmitted.

                  Set everything else you’re talking about aside, it is still a transmission, and can easily have a decent search performed upon it in the “transmission” subgroups/classes. Try classifying the instant claim MM is talking about. Where does it go? In the “software authorization” sub-group? lol does that even exist?”

                  to which your responded at 6.4.2.2 calling the first paragraph inept.

                  The advice is on kilter.

                4. No Les – do not twist what I was referring to – I just got done TELLING you what I was referring to.

              2. Nah les, wasn’t kidding, at least not halfway, I was just reading from context. It looked from the context that was how the term was being used. But now ivo Ned’s reference the context is blatantly one of those ancient machines, or rather the invention you cited is a regulator for such a friction drive/engine/transmission. Machines which, however, turn out to be exactly what I said anyway. The machine Ned found is literally a mechanical transmission that transmits power from one object to another via transmission of friction, as in, Ned’s device is literally an instance of transmission of friction from the one circular piece to the receiving circular piece. Which is why it is named a friction transmission/ drive/ engine. They use the force that resists the relative motion of the two pieces (aka friction) to drive the second piece. And the device you cited regulates one of those devices.

                1. Nah les, wasn’t kidding, at least not halfway,

                  6 being 6 – the jester in the court, playing the f001 as he does best.

                2. That is not an instance of a transmission of friction. It is a transmission of motion through friction. Friction occurs at the interface between two surfaces, it doesn’t get transmitted across a room or across town.

        2. “Friction”, “authorization”. Whatevs! It’s all just words. There’s no difference between those two things. The experts have spoken!

          It’s like “hardware” and “software”. They’re “equivalent” because … they’re both words!

          It’s all starting to make sense now.

      2. Ned Now, if the determination required … required novel apparatus to listen to the requestor to identify him, then we might have had something.

        Right. You’d have a novel apparatus that was perfectly eligible and valid, assuming that the apparatus was claimed in structural terms distinguishing it from prior art apparati rather than solely in terms of its “new functionality.”

        And nobody would be complaining. Of course, it’d be harder for some patent attorney sitting at home on a Sunday to whip out such a claim and extort tens of thousands of dollars each from a hundred different companies while renting a broom closet in an office building in East Texas. And that’s something we all need to be concerned about. Oh, and the communist menace. Don’t forget that.

        1. …in structural terms…

          Yay Banal misapplication of law attempting to make an optional claim format somehow be NOT an option/

    5. “There’s no objective measure of “authenticity” such someone can look at something and say “This is authentic” or “this isn’t authentic.” Consider: is this comment “authentic”? The “correct” answer is completely dependent on abstract logical rules that people are free to arbitrarily apply as they wish (and people do that, all the time, every day). So already this junky claim (and every claim like it) is in serious trouble.”

      1) Yes, I can guarantee that this is a 100% authentic MM comment.

      2) I dare say that all of civilization is based on being able to say “This is authentic.” If one couldn’t determine that, say a $20 bill was authentic and that bank transactions were authentic, the world economy would collapse and take all of civilization with it.

      1. …and yet another person who needs to recognize the patent eligible innovation of encryption (that would be Malcolm)

      2. Les you can’t determine whether or not a given 20 in your wallet is authentic as is. And you certainly would have had even more trouble doing so 30 years ago.

        1. Do you do any banking or any other financial transactions online (or to use the current vernacular: in the cloud)…?

          Do you really think authentication is not important?

          (and for a physics angle, what do you think will happen with qubits -and the coming quantum computers?)

        2. I can’t no. I’m not trained in it and I don’t have one of those special pens or a UV light that the cashiers at the grocery store whip out when ever they see me coming . But I’m sure their is a guy at the FBI or Treasury Department who’s job it is to authenticate currency. Currency can be authenticated. Else, how could anyone ever be charged with counterfeiting.

  5. The argument here that a Rule 36 judgment without a formal opinion by the Fed. Cir. makes a case “cert proof” is disproved by the Sup. Ct. taking and deciding the KSR case.
    Of course the absence of a persuasive dissenting opinion or a disagreement between different circuits does not improve the normal 300 to 1 odds of a cert denial. But how likely is a Rule 36 judgment to be entered if one of the three Fed. Cir. panel members on the case wanted to write a strong dissent?

    1. When there is no opinion, and the appeal involved a number of issues, it is not clear why the appellant lost.

      That primarily is Cooper’s problem.

    2. KSR wasn’t a Rule 36 case. There was a non-precedential opinion in that case, but there *was* an opinion.
      link to cafc.uscourts.gov

      If a judge wanted to write a dissent, and the majority wanted to issue a Rule 36 disposition, the majority would have to write an opinion. The Federal Circuit’s internal operating procedures require unanimity for a R36 disposition.
      link to cafc.uscourts.gov

      Rule 36 is annoying to the losing side, and if the CAFC is really deciding 50% of its cases that way, then that’s cause for concern… but anyone who’s followed Hal Wegner’s newsletter for more than a few years knows that the Supreme Court has approved of courts of appeals deciding cases without opinions and has consistently rejected cert petitions that ask the Supreme Court to slap the Federal Circuit for its R36 practice.

      50% sounds like a lot, but in general, Federal Circuit appeals follow Sturgeon’s law, and there’s no shortage of Federal Circuit opinions out there.

    3. If you listen to oral arguments regularly, you get a better feeling for why so many Rule 36 opinions are issued: the appellant’s arguments border on the sanctionable.

      The CAFC judges literally play with some l0ser patentees like a cat plays with a insect. The patentees have no idea what’s going on half the time. But they are being laughed at and from the first word of the oral arguments, they have zero chance.

      But hey! At least the attorneys are getting paid and that’s crtitically important to the economy. All that money thrown at “appeal!appeal!appeal!” patent attorneys who never saw a junk patent they couldn’t embrace trickles down and helps everyone. More patents equals more jobs. And better software! Much much better software.

      LOLOLOLOLOL

      1. In a way, MM, a Rule 36 affirmation is a form of sanction. It is an embarrassment to the litigator, and is hard to explain to the client.

        Some years ago, before I joined my current client, they had lost a case on claim construction and had taken the issue to the Federal Circuit. I read the appeal brief and could make neither heads or tails of it. Rule 36. And of course, as you said, the lawyers were being paid and somehow suggested to the client that they could win.

        1. I should hope that it wouldn’t be hard to explain to the client, if the attorney is any good then they should have told the client that a rule 36 was a distinct possibility from the get go on filing the appeal.

  6. “One issue that the district court (and obviously the Federal Circuit) failed to address was that of preemption – what is the relevance of the fact that substantial, practical, an and non-infringing applications of the given abstract idea are available and not covered by the patent. Petitioner argues that issue is critical to the analysis.”

    When the problem is that the claim is directed to subject matter that is nonstatutory, the amount of detail is irrelevant. Take Math. Does it really matter, at all, just how detailed the mathematical procedure is? At all?

    Benson, then Bilski confused everyone by conflating scope with statutory subject matter. Gradually the courts beginning to understand that if the problem with the claim is that it is directed to nonstatutory subject matter, preemption is hardly the issue. What really matters is whether the nonstatutory subject matter is applied in any way to improve subject matter otherwise statutory. There must be functional relationship between the nonstatutory subject matter and the statutory, as in Diehr, such that the statutory subject matter is at least improved.

    1. Are all composition claims “directed to” nothing more than a configuration of protons, neutrons, and electrons…?

      1. Are all composition claims “directed to” nothing more than a configuration of protons, neutrons, and electrons…?

        In valid eligible claims, the new and non-obvious configuration is recited in the claim.

        That’s not the case with the s0ftware junk that you love so much. In the case of the s0ftware junk that you love so much, the “configuration” is just a magic word that precedes the recitation of some desired function.

        But the big entitled babies (i.e., you) l0ve it that way. And you’re a super serious person! Sure you are. So we all have to pay attention to your endless whining.

        1. Yay! – the attempt to portray an optional claim format as somehow NOT being optional, topped with the “poker tell” of “super serious.”

          Gee, we haven’t seen this CR@P type of “argument” before – like a gazillion times – have we?

          Maybe you want to have a better “argument”…?

          1. Maybe you want to have a better “argument”…?

            I don’t think I need one, “anon.”

            After all, Jericho’s claim (and every claim like it) is junk for the reasons I articulated.

            Just hope that I don’t come after your client’s junk. Oh wait, I forgot: you don’t have any clients. You work in the mail room screening letters to the lawyers you work for so they can keep pretending that there’s no prior art out there.

            LOLOLOLOLOLOL

            1. That you “don’t think” is very much part of the problem.

              When you do decide to think – and you realize that you DO need a better argument, maybe you will then apply yourself and come up with something worthwhile.

              (Given the Decade of Decadence from you, the likelihood of that is zero)

    2. I find it immensely amusing that Ned still has not come to grips in that his beloved “Point of Novelty” in Diehr was software.

        1. You read the case – thermocouples were old in the art (and there was nothing new or “Point of Novelty” about how they operated).

    3. Math isn’t patentable?

      Maybe not, but methods of doing things, like methods of data reconstruction are:

      1. A method for data reconstruction or deconstruction, comprising:
      (a) acquiring, by inputting into a processing device or storing in a memory, a starting-space data set comprising a plurality of N-dimensional starting-space sample points selected by a user or a computer from an acquired image, audio, video, or molecular analysis data superset, wherein each N-dimensional starting-space sample point comprises a set of associated sample-point component numbers, each set of sample-point component numbers notated herein as {kx, ky, k3, k4, k5, . . . , kN; a, b}, and wherein starting-space is either frequency-space or inverse frequency-space;
      (b) applying at least one density-compensation function, by calculating on a processor or storing in the memory, at least one additional starting-space data value, wherein each additional starting-space data value comprises a complex number computed based on at least one sample-point component number in the starting-space data set;
      (c) calculating, on the processor, for each of at least one user-selected or computer-selected x-coordinate px in target-space, an associated horizontal key res1 comprising at least one horizontal key element, wherein target-space is frequency-space when starting-space is inverse frequency-space and is inverse frequency-space when starting-space is frequency-space, and wherein each horizontal key element is notated as res1i and comprises at least one term of the sum:
      ∑ z = r 1 r 2 ⁢ ( ⅇ j ⁢ ⁢ 2 ⁢ π ⁢ ⁢ k ⁢ ⁢ y i , z ⁢ E 1 ⁢ p x ⁢ E 2 * 〈 a i , z , b i , z 〉 )
      wherein j2=−1, index z is a positive integer, and r1=1 and r2=Li, wherein Li is a number of ky values paired with at least one of the kx-notated values in the starting-space data set, and further wherein E1 and E2 are each a region scaling factor, kyi,z is one of the sample-point component numbers in the starting-space data set, is one of a plurality of complex-number starting-space data values in the starting-space data set, and wherein * represents complex-number multiplication;
      (d) calculating, on the processor, for each of at least one user-selected or computer-selected target-space point (px, py) comprising a current target-space x-coordinate px and a current target-space y-coordinate py, a color, wherein the color comprises at least one term of the sum:
      ∑ i = r 3 r 4 ⁢ ( ⅇ j ⁢ ⁢ 2 ⁢ π ⁢ ⁢ p y ⁢ E 5 ⁢ k ⁢ ⁢ x i ⁢ E 6 * res ⁢ ⁢ 1 i )
      wherein j2=−1, index i is a positive integer, r3=1 and r4=n, wherein n is a number of kx values in the starting-space data set, and further wherein E5 and E6 are each a region scaling factor, kxi is one of the sample-point component numbers in the starting-space data set, res1i is one of the horizontal key elements associated with at least one of the horizontal keys, and wherein * represents complex-number multiplication; and
      (e) forming, by storing in the memory, outputting to a display device, storing on a storage device, or outputting to an output device, target-space data comprising at least one of the computed colors, thereby generating target-space data having a resolution corresponding to a number or density of the selected target-space points.

      1. A method for data reconstruction or deconstruction, comprising:
      (a) acquiring, by inputting into a processing device or storing in a memory, a starting-space data set comprising a plurality of N-dimensional starting-space sample points selected by a user or a computer from an acquired image, audio, video, or molecular analysis data superset, wherein each N-dimensional starting-space sample point comprises a set of associated sample-point component numbers, each set of sample-point component numbers notated herein as {kx, ky, k3, k4, k5, . . . , kN; a, b}, and wherein starting-space is either frequency-space or inverse frequency-space;
      (b) applying at least one density-compensation function, by calculating on a processor or storing in the memory, at least one additional starting-space data value, wherein each additional starting-space data value comprises a complex number computed based on at least one sample-point component number in the starting-space data set;
      (c) calculating, on the processor, for each of at least one user-selected or computer-selected x-coordinate px in target-space, an associated horizontal key res1 comprising at least one horizontal key element, wherein target-space is frequency-space when starting-space is inverse frequency-space and is inverse frequency-space when starting-space is frequency-space, and wherein each horizontal key element is notated as res1i and comprises at least one term of the sum:
      ∑ z = r 1 r 2 ⁢ ( ⅇ j ⁢ ⁢ 2 ⁢ π ⁢ ⁢ k ⁢ ⁢ y i , z ⁢ E 1 ⁢ p x ⁢ E 2 * 〈 a i , z , b i , z 〉 )
      wherein j2=−1, index z is a positive integer, and r1=1 and r2=Li, wherein Li is a number of ky values paired with at least one of the kx-notated values in the starting-space data set, and further wherein E1 and E2 are each a region scaling factor, kyi,z is one of the sample-point component numbers in the starting-space data set, is one of a plurality of complex-number starting-space data values in the starting-space data set, and wherein * represents complex-number multiplication;
      (d) calculating, on the processor, for each of at least one user-selected or computer-selected target-space point (px, py) comprising a current target-space x-coordinate px and a current target-space y-coordinate py, a color, wherein the color comprises at least one term of the sum:
      ∑ i = r 3 r 4 ⁢ ( ⅇ j ⁢ ⁢ 2 ⁢ π ⁢ ⁢ p y ⁢ E 5 ⁢ k ⁢ ⁢ x i ⁢ E 6 * res ⁢ ⁢ 1 i )
      wherein j2=−1, index i is a positive integer, r3=1 and r4=n, wherein n is a number of kx values in the starting-space data set, and further wherein E5 and E6 are each a region scaling factor, kxi is one of the sample-point component numbers in the starting-space data set, res1i is one of the horizontal key elements associated with at least one of the horizontal keys, and wherein * represents complex-number multiplication; and
      (e) forming, by storing in the memory, outputting to a display device, storing on a storage device, or outputting to an output device, target-space data comprising at least one of the computed colors, thereby generating target-space data having a resolution corresponding to a number or density of the selected target-space points.

      US9251566B1
      Publication date
      2016-02-02

      link to patents.google.com

        1. anon, if you think Les’ patent relates to encryption, then the “oops moment” belongs to you.

          Transitions between frequency and time (period) domains for signal processing purposes, yes. Encryption, not so much.

          1. You are correct t- I should have been a bit more precise – I did not mean to imply that the exact example that Les provided was an example of encryption, but rather, it was LIKE encryption which is applied math, and thusly, eminently patent eligible.

            Let me know if you think otherwise.

      1. Les, on first blush, the claims do seem to be to math and the processor is simply used. I am simply flabbergasted that the PTO still issues these Rich-style claims.

      2. Les,

        You more than likely should differentiate between math, applied math (and perhaps even MathS) instead of just using the single term “math.”

        1. Your precision is exhausting. I know what Ned means and Ned knows what I mean. Ned means that the claim I posted is not eligible. I mean that it is and should be.

          1. The precision is obviously necessary so as to point out WHY your view is correct and Ned’s is not correct.

            Lack of precision here only encourages the obfuscation.

      3. Not that these claims don’t rebut Ned’s point, but I love how Les refutes an invalidity argument by pointing to an issued patent rather than a court case, as if the existence of an issued claim means the law has to conform to it being valid rather than the simple fact that the office often issues invalid claims. Every claim the court has struck down was once a valid issued patent claim.

      4. Wow. Well, Les, when you’re right, you’re right. You have absolutely identified a patent on theoretical, abstract math. Color me impressed.

        I’d love to see an attempted enforcement action on this one, though.

        1. …hence my admonition to be a bit more precise about “math,” “applied math” and “MathS” because of those like you, Dobu.

            1. I “actually read” and responded to your post 4.4.

              Do you want to point out where in that post you used the “math/applied math” notation?

              Hint: you did not.

              1. “Math isn’t patentable?

                Maybe not, but methods of doing things, like methods of data reconstruction are:”

                Dial down the arrogance a coupla notches.

                1. Dial it down yourself: you did not do as you claimed – hence my original clarification is entirely in order.

                  Your better path here would have been to say “Thank you, anon, you are correct and there is a real difference between math and applied math that is should have been more clear about.”

                  It’s not “arrogance” to be right about something and to try to help you be precise at the exact point that others will try to obfuscate.

        2. Doby, you are not suggesting that patents on math are valid? I urge you to consider Parker v. Flook that emphasized that math is unpatentable, and the addition of trivial post solution activity adds nothing. link to scholar.google.com

          I see nothing in the claims posted by Les that is other than math except the limitation to using a processor — not enough in Benson and Alice, and other that generalized data gathering and post-solution activity that is trivial or conventional. Notably the data is not actually used to do anything once computed.

          (a) acquiring, by inputting into a processing device or storing in a memory, a starting-space data set comprising a plurality of N-dimensional starting-space sample points selected by a user or a computer from an acquired image, audio, video, or molecular analysis data superset

          “e) forming, by storing in the memory, outputting to a display device, storing on a storage device, or outputting to an output device, target-space data comprising at least one of the computed colors, thereby generating target-space data having a resolution corresponding to a number or density of the selected target-space points.”

          1. “Doby, you are not suggesting that patents on math are valid?”

            Assuming that’s addressed to me, . . . Good lord, no! I am dismayed this patent on math (not even “applied math”) was actually granted.

            I mentioned looking forward to attempted enforcement because this thing could not possibly (well . . . not reasonably, maybe?) survive re-examination.

            1. Dobu, reexamination? WTF? 101 is not an issue in reexaminations. Neither IPRs. These patent well may have novel and nonobvious subject matter in them.

              These claims, however, will never be enforced because no respectable attorney would ever file a lawsuit on them. They would not survive 12(b), and sanctions and attorneys feed will be demanded and probably awarded.

              But I agree, just how the PTO continues to issue patents on math is a wonder?

              1. …and someone is forgetting about the legal presumption of validity once again (gee, and that aligns with the Ned-convenience factor – go figure)

    4. Ned said: “When the problem is that the claim is directed to subject matter that is nonstatutory, the amount of detail is irrelevant. ”

      When something is allegedly non-statutory because it is allegedly and “abstract idea”, then the amount of detail is absolutely relevant.

      A method for repairing a car comprising: removing and engine of the car; repairing the engine; and reinstalling the engine may be directed to an abstract idea.

      A method for repairing a 1967 Mustang comprising: locating engine mounts A – E; Disconnecting electrical connectores 22A – 25C; unbolting transmission attachments 17G – 17L; Placing a lift frame over the engine compartment; wrapping an engine hammock around the engine block; attaching said hammock to said lift frame….etc

      is not an abstract idea.

      1. Les, “When something is allegedly non-statutory because it is allegedly and “abstract idea”, then the amount of detail is absolutely relevant.”

        Something is non statutory because it is not within the four classes; and a process is not simply any steps, but steps that make things — manufactures, i.e., transform. That is what Congress intended in 1790.

        1. Steps that makes things.

          Except not.

          See 35 USC 100(b).

          I see that you are still being dishonest and attempting to make the method category a sub-category of the hard-goods items.

          For shame Ned.

        2. Yeah Ned, what he said. If congress meant process that make things, they could have included “that make things” in the statute. They didn’t. So, you know…

          Anyway. I can’t think of any process that doesn’t make something…any computer process, at a minimum, makes electrons move from here to there…so, they make piles of electrons, or piles of holes…

          1. Les, the English Statute of Monopolies had been limited to “manufactures.” But court decisions had extended it to engines, compositions, machines and the art behind making manufactures. The early patent acts were crafted to include all of this.

            It really was unnecessary to include machines and compositions, because these also are manufactures and were treated that way in England.

            But, what Congress was trying to do in embody in the statutes the lasted in the holdings of the common law courts of England.

            1. Still waiting for you to recognize OUR law Ned – I even gave you the pertinent section.

              Let me give it to you again (it is from the controlling law as written by Congress in 1952):

              35 USC 100(b)

              (This is not the first time that you have “run away” from this section of the law)

        3. Ned: “Something is non statutory because it is not within the four classes;”

          Something is non statutory because … is a moving target. Processes are a statutory class co-equal with the others and even listed first in the statute….as if more important that the rest (at least clearly not less important or reliant on the others)…. Kinda like “I am the Lord thy God…”

          link to youtube.com

          1. Les, England!

            Statute of Monopolies!

            English cases!

            All these are highly relevant to what is within a patentable process.

            Congress never changed the essence of what a patentable process was. The codified the case law in 1952 — they did not overrule it despite what anon urges to the contrary.

            Something has to be made, whether a new machine, composition or manufacture. A new use of an old machine must actually produce something new or improved.

            The furthest the Supreme Court has ever gone is to allow the patent on method of producing a telephone signal form sound. But the signal is a physical thing, even though transitory.

            1. Ned,

              Your “version” of the law and of history is wrong.

              We’ve gone over how the Act of 1952 simply was NOT a mere codification.

              You wannt to insert “relevane,” all the while you STILL do not even come close to addressing what Congress did with 35 USC 100(b) – not sure how much MORE relevant one can get!

              There is NO “overruling” needed – you were simply wrong pre-1952 in attempting to make the method category be some type of subset (and not a full category unto itself).

            2. Ned, If I can’t read limitations from the specification into my claim, you can’t read philosophy from the 16th or 17th Century and across an Ocean into the statute. Not when 3 extra words (that make things”) would have removed the ambiguity.

              1. Les, the only problem with that is that our founders based the 1790/1793 statute on English common law. Pennock v. Dialogue. The meaning of the terms of statute is the meaning they had at the time of enactment.

                Process does not mean anything but what the founders meant by Art, plus subsequent Supreme Court case law.

                1. Uh hu.. What would Congress have to do to 35 USC 101 (and/or 100) to identify the 4 categories of eligible subject matter as I believe that are already defined. In particular, what would the definition of process be to include processes that, say fine tune the color production parameters of an imaging device. Not print or display an image mind you, just a process that adjusts the settings.

                  If process means process and other things doesn’t cover it, what would?

                2. Les, you asked for a response below. However, Congress did not intend to change the law regarding 101 in ’52. That much is obvious from this text of the new 101 and of 100(b).

                  This talking to members of Congress, including Senators, they are not about to change the fundamental patent statute of the United States lightly. It is been the foundation of American patent law since 1790/93. People talk about doing away, or amending 101, are simply out of their minds. People who talk about 101 as if it were modified by Congress in ’52 do not understand that Congress had no intention of modifying this basic law.

                3. Wow Ned – talk about a “nominalist” approach….

                  Except for the fact that you have several other items going on telling you that Congress DID intend to change the single paragraph into several different sections.

                  You seem to stop “looking” once things do not point to your desired end view of what actually happened in 1952.

                  Open your eyes son.

                4. Ned (again) refuses to give full weight to the plain words of the Act of 1952.

                  So very sad – so very unethical.

                5. anon, I find it astounding, truly astounding, that you continue to believe that Congress was trying to change 101 in any way, other than moving prior art to 102. Section 100 was not intended as a change either. There simply is no support at all for your theories. None.

                  But you continue to say things like the “plain words” of the ’52 Act override and replace the meaning of the words in 101 that have been their since 1790/1793, as interpreted by the Supreme Court. Nonsense.

                  But, to your support you do have the very incredible decision of Bilski whose opinion spent no time at all on the historical analysis as to what Art/Process meant, and simply slapped on the Abstract limiter without explaining what that meant. That is one of the reasons I continue to call Bilski one of the worst patent law decisions of all time. Absolutely everyone is upset with “abstract.”

                  Stevens dissent was right and also was right. The later cases are trending to Stevens’ point of view.

                  Now, I saw your list of bad Supreme Court justices for patent law, and you identified Douglas, Stevens and Breyer. But you did not identify Kennedy. That simply tells me that you have no clue.

                6. There is EVERY support for my correct view of what happened in 1952.

                  There was NO “101” prior to 1952***, and the words of a single paragraph were modified in meaning and intent (even as some of the same words remained) because Congress (not Rich) broke up that single paragraph and formed several separate and distinct sections of law.

                  Your “fealty” to the Supreme Court is grossly misplaced in part because Congress (again, not Rich) were reacting AGAINST a Supreme Court that had become so anti-patent that even its own members stated: “The only valid patent is one that has not yet appeared before us.”

                  Your recollection of history is decidedly incomplete Ned.

                  To the point even that ANY of your advocating on law to fit your agenda is IN FACT unethical.

                  In Bilski Stevens’ concurrence (the psuedo-dissent) was NOT correct in what he wanted to say – which resulted in his losing the majority position that he was slated to write, and would have resulted in an EXPRESS violation of the Constitutional separation of powers as he would have expressly over-ruled the actual words of Congress.

                  AS to Kennedy, – your “opinion” is also menaingless, as bad as you think he is, he is nowhere as bad as any of Douglas, Stevens and Breyer.

                  Under the Constitution that you swore to uphold as an attorney, your state oath does NOT place the Supreme Court ABOVE the law and outside of the limits of that Constitution (with the incumbent doctrine of separation of powers).

                  ***which is why you have failed to provide what I asked of you on a recent thread, and instead attempted the chicanery that I predicted that you would attempt.

                7. anon, “There was NO “101” prior to 1952***, and the words of a single paragraph were modified in meaning and intent”

                  Incredible.

                8. It is incredible that you feel otherwise – and continue to ignore the plain reality of what happened in 1952.

                9. Les,

                  My replies are far more damaging to his “credibility” because deep down in his heart he know that I am correct from the historical and factual viewpoints.

                10. anon, how many times must the Supreme Court actually state that there was no intention to change the law before you begin to listen? Even 103 they treated as a mere codification.

                11. The thing is Ned – the Supreme Court saying that is meaningless dicta at best, and at middle, nothing more than a power addicted branch of the government offering up self-serving b@lony.

                  Just because they say it, it is not law, nor is it true.

  7. in favor of rote analysis of patent language at so high a level of generality that the claim language is rendered all but meaningless.

    That’s according to the unlimited power of “Gisting” provided by the Court.

    Combine that with eh undefined ability to label “Abstract,” and you have the raw power of being able to eliminate the actual words of Congress in 101 with the sword of “Gist/Abstract.”

    And you want the Court to give up its own power….?

  8. Whether…a patent may be invalidated as an “abstract idea” under 35 U.S.C. § 101 when it claims a specific implementation

    If only that was this case though.

    that practice should not be permitted to “cert proof ” issues that are otherwise cleanly presented and worthy of this Court’s review

    If only that was this case though.

    preemption – what is the relevance of the fact that substantial, practical, an and non-infringing applications of the given abstract idea are available and not covered by the patent. Petitioner argues that issue is critical to the analysis…This leads to the untenable result that patents—such as the one here—that do not preempt other uses of the alleged “abstract idea” at issue are nevertheless held to violate Alice.

    This misunderstands what the preemption is. The preemption issue is not that other means can be used to achieve a similar result. The preemption issue came in as soon as the claim claimed “rules” without limiting itself to a particular rule. One cannot build a concrete machine that interrogates a “generic” rule, because one cannot provide an answer without knowing what the question is. The only way to have a concrete machine is to limit the machine to a particular rule, then you can discover particular actual facts and apply a particular actual analysis to achieve a result.

    When the patentee refused to that, he necessarily had to venture into the realm of the abstract, and his claim is just a framework for rule application rather than any particular rule. The “preemption” fear comes in because the scope embraces all interrogations of all rules and the only support for it comes in the form of “apply my abstract framework to whatever particular situation you wish.”

    1. This misunderstands what the preemption is.

      That is not what “preemption” means. Your view here eliminates completely the doctrine of equivalence.

      1. There is no equivalence in interrogating a non-limited rule, that is the point. It would be like saying “All science is the same” because every embodiment of science engages in the same vague steps of the scientific method.

        If your authorization check is “Is the person old enough to drink” the information that you need a driver’s license and the test is determining if someone is over 21. But if the authorization check is “Will this person be a disruption” the information you need is a visual and behavioral assessment, while if the check is “Do we violate the fire code” the information lies in a count of people inside. They all follow a generic gather, compare, conclude method but they are not equivalent. You’re like Morse, disclosing a scientific principle and then saying “Every use of this principle is basically the same, so I claim all of them.” It doesn’t work like that – an abstract framework isn’t transmuted into a concrete invention + equivalents just because you say so. There is either similarity in the generic field or there isn’t.

        1. There is no equivalence in interrogating a non-limited rule, that is the point.

          Once more please – that just does not make sense.

          Try to remember (or remember to learn about) the ladders of abstraction and that such ladders simply are not one-rung ladders.

          1. such ladders simply are not one-rung ladders

            How many rungs are there? And where can I buy one?

            LOLOLOLOL

            Too bad you can’t patent one of these “ladders.” Oh but wait! In your fantasy world you surely can. You just need to describe them functionally and toss in some computer-implemented bal0ney.

            1. LOL right back atcha – your echo once challenged me on the concept of ladders of abstraction and ended up with his tale tucked between his legs.

              Maybe you need to broaden your horizons a bit if you don’t understand this concept (and if it helps, this is NOT an “anon” concept).

              What a schmuck.

                1. Do you realize that your question is meaningless?

                  I’m not “authorized” to say.

                  LOLOLOLOLOLOLOLOL

            2. In fact you can:

              1. A method of attaching a ladder stand to a post, the method comprising the steps of:
              attaching a platform assembly to a ladder, wherein the platform assembly comprises a platform with a top surface forming a major plane of said platform;
              positioning a pair of lateral support members onto opposite sides of the platform via swivel brackets, the swivel brackets providing the lateral support members at least two rotational degrees of freedom during the positioning step so that the lateral support members respectively can pivot with respect to said platform in a horizontal direction parallel with the major plane of said platform and pivot with respect to said platform in a vertical direction parallel with a vertical plane positioned orthogonal to the major plane of said platform;
              moving the lateral support members independently from each other through the at least two degrees of freedom relative to the platform so the lateral support members are oriented at a downward angle relative to the platform on opposite sides of the post;
              securing distal ends of the lateral support members to the post with at least one strap;
              connecting a stabilizing member to an intermediate portion of the ladder;
              securing a stabilizing plate of the stabilizing member to the post; and
              attaching a first end of the at least one strap to the distal ends of the lateral support members and attaching a second end of the at least one strap to the stabilizing member to connect the distal ends of the lateral supports with the stabilizing member.

              link to patents.google.com

    2. You are also conflating a “particularity” argument (112) with an eligibility argument (101), and then doubling down and getting the “particularity” argument wrong (breadth is not indefinite – the world is not made up of single rung ladders, and the degree of particularity that you appear to seek is just not the legal requirement.

      This of course has long been shared with you, and yet there you are, eyes clenched tight, not seeing what you do not want to see.

      1. This of course has long been shared with you, and yet there you are, eyes clenched tight, not seeing what you do not want to see.

        Scoreboard. By the way, what is the current holding in this case? Because the argument that SCOTUS is off the deep end of anti- behavior doesn’t bode well for you when both lower courts also said that it was abstract, with no dissenting opinion either. But no I’m sure everyone is wrong and anon is right.

        1. Broken scoreboard

          There – fixed your quote for you.

          As far as THIS case – bah, I am not defending these claims – I AM talking about the underlying law though. I suggest that you get that right first, before you gloom some mistaken view of law onto this set of claims.

          1. “anon” I am not defending these claims

            Sure seems like you are.

            I AM talking about the underlying law though.

            You’re doing a lot of talking but as usual you’re not saying anything. Maybe the voices from your fillings are too faint this week. Have you tried standing further away from your microwave?

            1. Sure seems like you are

              That is pure B$ – I am talking about the law – not the claims – that’s no surprise that you “feel” that I am “not saying anything” because of your lack of recognition and grasp of the actual law.

              Let’s see you improve your “game,” drop your silly short script of ad hominem and show that you really do understand the law.

              (I won’t be holding my breath)

    3. Random, I think the problem also is that the subject matter here does not improve a computer, computer system or the internet, but simply uses those systems. One almost needs to start at step two at times. Compare Enfish, where claim actually directed at improved computer systems was found to pass step 1.

      1. Yo cannot “just use” until you first change what you are “just using.”

        Ned, you are attempting to forget that first step (again), and use a fallacious argument – one that has been debunked and pointed out to you.

        Your “just use” comes down to the patent doctrine of inherency.

        If you are going to persist in your Windmill chases, at the very least, please use the proper patent doctrines to build your case (instead of the sound bytes of “just use” that omits certain things).

        Thanks.

        1. anon, you position is the same as that of Rich. At some time, you are going to have to get over it. The Rich era is Gone with the Wind.

          1. My position is consistent with what Congress – not your attempted scape goating of Rich – did in 1952.

            That Rich also viewed what Congress did in a certain way is rather a non sequitur to what Congress did.

            When you say “is gone,” AND that coincides with a Supreme Court abusing its powers and attempting to be above the Constitution and the separation of powers, well Ned, defending the Constitution is NEVER “Gone with the Wind,” and to your attempts to place the Court above the Constitution, NOT engage in discussions on the merits of the counter points presented, and merely mouth your same drive-by monologue, my response is: frankly I don’t give a damm.

            1. Anon, the Supreme Court has emphatically declared that State Street Bank is one of those cases that must live in infamy. Unless and until you amend the Constitution, you are going to get nowhere trying to argue Rich’s position. It is a lost cause.

              For generations, nay for hundreds of years, the Romans in the Empire longed to return to the days of the Republic. It never happened.

              1. That’s great, but you missed the point that I am NOT depending on State Street in any way, but instead I am depending on the original work of Congress in the Act of 1952 (among other controlling items of law).

                This is not the first time that you have attempted to portray my words as from State Street AND I have corrected your error.

                Please stop the inte11ectually dishonest tactics.

                You provide no clue whatsoever to this “amend the Constitution” thought that you are floating here.

          2. Further, your “response” here is a diversion to the points that I present to you at post 2.3.1.

            Please actually address the points presented in your “response,” rather than attempt to avoid those points.

            C’mon Ned – give it an (inte11ectually) honest try.

      2. Enfish is not a particularly useful case in any context. Enfish stands for nothing more than the proposition that software can improve a computer-qua-computer just like hardware can, which one already knew if they were following the Supreme’s pre-Alice 101 jurisprudence anyway.

        You don’t need a court to tell you that means claims which are drawn to a very particular method can help avoid 101 scrutiny by being very particular.

        1. …and once again you confuse particularity (112) with a eligibility (101) discussion…

          Do you realize that by doing so, that you show that you understand neither 101 nor 112?

    4. “The only way to have a concrete machine is to limit the machine to a particular rule”

      Nonsense. That’s like saying the only picture claims encompassing a single embodiment are allowable. …Like the claims to the Wright Flyer don’t read on the same plane but made of aluminum, even though the wings be warp able in the same exact manner claimed.

      The “rules” in this claim are not what makes the claim novel. I expect the novelty has something to do with determining what information is still missing and only asking remote devices for the specific missing information. If I am correct, I would note that THAT is spelled out fairly specifically, and not that it has to be, but clearly would be, contrary to the assertions of the lower court, a change in way computers operate.

      1. A method to process authenticated user requests to access resources, the method comprising:
      receiving from a user a request to perform an action on a resource;
      receiving, by a server, a rule associated with the action, wherein the server comprises a processor and operatively associated memory, and wherein the rule indicates conditions under which a request to perform the action on the resource should be granted;
      determining a plurality of attributes required to evaluate the rule;
      classifying at least a portion of the plurality of attributes by connector, wherein each connector is in communication with an associated remote data source comprising values for attributes classified with the connector;
      for a first portion of the plurality of attributes classified with a first connector:
      for each of the first portion of the plurality of attributes, determining whether an attribute value for the attribute is present at the server;
      generating a first connector request, wherein the first connector request comprises each of the first portion of the plurality of attributes that lacks an attribute value at the server; and
      requesting attribute values for each attribute included in the first connector request, wherein the requesting takes place via the first connector and is directed to the remote data source associated with the first connector;
      evaluating, by the server, the user request to determine whether the user is authorized to perform the action on the resource, wherein the evaluating comprises applying the rule considering the values for the plurality of attributes; and
      returning an authorization decision.

      1. Les: I expect the novelty has something to do with determining what information is still missing and only asking remote devices for the specific missing information.

        Looking elsewhere for missing information is novel?

        LOL

  9. Just this week, the Supreme Court denied cert. in a petition following a Rule 36 affirmance — with a petition that I thought made a really strong case for reviewing a Rule 36 affirmance. Newegg v. Macrosolve, No. 15-1369.
    link to supremecourt.gov

      1. link to patentlyo.com See pp. 40-41 for the discussion of Rule 36. Decent petition, but Macrosolve waived a response, and the Supreme Court denied without asking for one. Questions presented are below.

        1. Whether, in resolving a motion for attorneys’ fees under 35 U.S.C. § 285 brought by a defendant, the Eastern District of Texas and the Federal Circuit may disregard this Court’s analytical framework provided in Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014) (“Octane”), and create and apply a special,
        heightened burden of proof whenever the patent plaintiff avoids adjudication on the merits by unilaterally dismissing its case before judgment?

        2. Whether the Eastern District of Texas rule requiring proof by clear and convincing evidence that a lawsuit is frivolous improperly limits or circumvents Octane, in which this Court rejected both requirements?

        1. Reading between the lines, the patent owner got an unfavorable Markman and decided to call it quits. The DC then decided that the patent owners position on claim construction was arguable, even if they lost. The claim construction order is reported here: MACROSOLVE, INC. v. ANTENNA SOFTWARE, INC., No. 6: 11-cv-287 MHS-KNM (E.D. Tex. Jan. 21, 2014). link to scholar.google.com

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