Common Sense Distinctions in Section 101 Analysis

by Dennis Crouch

In a short opinion, Judge Taranto has affirmed the lower court ruling that Electric Power Group’s asserted claims lacked subject matter eligibility.  U.S. Patent Nos. 7,233,843; 8,060,259; and 8,401,710.  The court writes:

Though lengthy and numerous, the claims do not go beyond requiring the collection, analysis, and display of available information in a particular field, stating those functions in general terms, without limiting them to technical means for performing the functions that are arguably an advance over conventional computer and network technology. The claims, defining a desirable information-based result and not limited to inventive means of achieving the result, fail under § 101.

Electric Power Group, LLC v. Alstom S.A. (Fed. Cir. August 1, 2016) [EPGvsAlstom] (Judges Taranto, Bryson, and Stoll).

PowerGroupThe claims at issue require the reception of real-time data coming in from a wide geographical distribution; analyzing the data for instability that may be indicative of grid stress; displaying visualizations of the stability metrics; storing the data; and deriving a composite indicator of power grid reliability.  According to the court, this sequence – even when taken as a whole – is an abstract idea.  Thus, a collection of abstract ideas is itself likely to be an abstract idea.

In distinguishing Enfish, the court explained that the claims here merely used “existing computers as tools in aid of processes focused on abstract ideas” while Enfish claimed “computer-functionality improvements . . . a particular database technique—in how computers could carry out one of their basic functions of storage and retrieval of data.”   Although line drawing may be admittedly difficult at times it was not difficult for the court here.

In Step-Two of a Alice/Mayo, the courts asks whether the claims require “something more” than the abstract idea that is sufficient to serve as a foundation for the invention.  Although not entirely clear, this “something more” is generally thought to require an inventive concept – a point of novelty sufficient to transform the idea into a patent eligible invention.   Here, the court found that none of the sources of information, analysis & display techniques, or measures were new or inventive.

The claims in this case . . . do not include any requirement for performing the claimed functions of gathering, analyzing, and displaying in real time by use of anything but entirely conventional, generic technology. The claims therefore do not state an arguably inventive concept in the realm of application of the information-based abstract ideas.

According to the patentee, the benefit of the invention was to provide “humanly comprehensible” information regarding an extremely complex system.  The court rejected that result as offering a patent eligible concept:

Merely requiring the selection and manipulation of information—to provide a “humanly comprehensible” amount of information useful for users, by itself does not transform the otherwise-abstract processes of information collection and analysis.

Common Sense Distinction: Perhaps the most important added element of the opinion is the appellate court’s approval of the lower court’s “important common-sense distinction between ends sought and particular means of achieving them, between desired results (functions) and particular ways of achieving (performing) them.”  Here, the court found that the claims were effectively directed to the problem-to-be-solved rather than the actual and concretely defined solution to the problem.  Although the appellate panel acknowledged that this distinction is not the Alice/Mayo test, but rather as “one helpful way of double-checking the application of the Supreme Court’s framework to particular claims.”

Indeed, the essentially result-focused, functional character of claim language has been a frequent feature of claims held ineligible under § 101, especially in the area of using generic computer and network technology to carry out economic transactions. In this case, the district court’s wrap-up description confirms its, and our, conclusion that the claims at issue fail to meet the standard for patent eligibility under § 101.

This statement of the appellate court is designed to further free district courts to apply common sense in their Section 101 analysis.

392 thoughts on “Common Sense Distinctions in Section 101 Analysis

  1. 29

    All of MM’s, Martin’s, and Ned’s arguments can be summed up as:

    Prove you are not a witch.

    1. 29.1

      Night, I think you continue to demonstrate beyond peradventure that you do not know what you are talking about, but instead insist on babbling nonsense and making utterly banal comments on the more informed and articulate commentators here.

      1. 29.1.1

        Ned, you are NOT one of the more informed and articulate commentators here.

        Not by a long shot.

      2. 29.1.2

        Ned, we all know that you are on here just to try and pick up business.

        Sure I don’t know what I am talking about. That is why I beat you to a pulp every time we predict the outcome of cases.

          1. 29.1.2.1.1

            Whatever Ned. You have become a sad figure. Unable to grasp the modern era. Pandering for your alms. Shouting in the town square about witches and how you will help burn them for a fee.

        1. 29.1.2.2

          Night, I have always had a strong interest in patent law. I was, after all, the AIPLA patent law committee chair while patent counsel of a major company.

          1. 29.1.2.2.1

            That was before you became old and desperate for work. Now you peddle your witch law nonsense to pander to the infringing class of clients.

            1. 29.1.2.2.1.2

              Night, you must live in a land of mist and fog because I am decidedly on the side of the patent owner these days. For much of my career, I did work for big corp whose views of the world did not include patents except either as a nuisance, or as a vehicle to honor a company’s engineer inventors.

              It is almost as if you do not bother to read what I right generally, and only focus on business methods patents, which I do oppose.

              1. 29.1.2.2.1.2.1

                No mist or fog, Ned, as it is not just business methods that concerns your Windmill chases, but software as well.

                But even worse than that is your alignment with Malcolm and your (extremely) undue adulation of THE worst blight in these boards (just enjoy his swagger indeed) that stems from your affiliction of “6-is-a-genius-because-he-agrees-with-me.”

                It is also because you do NOT finish conversations the moment that a point is presented that thre@tens your desired views. Instead, you move on to the next thread and merely repeat your same windmill chase as if the counter point was never raised.

              2. 29.1.2.2.1.2.2

                No one can be for patents and back Benson and Alice. Not possible.

                And, Ned, you cannot possible be for patents. You are a judicial activists that is very much against patents. You are unethical as well.

                Let’s see. You say you back MM. MM consistently characterizes patent applicants as grifters. And, yet, anyone that knows anything about patents knows that patents are integrated into every technology company in the country. That every large company (CAT, Intel, etc.) uses the patents to help promote innovation within their companies. That almost all engineers work to a standard of inventing something that is patent worthy.

                That is realty. The fact that you don’t challenge MM, but support his grafter narrative makes you unethicial f1lth.

                1. It’s almost as if Ned’s “pro-patent” efforts are a “false flag” operation.

                  He does seem to support some aspects of being “pro-patent,” but do you ever notice that there appears to be a “peace-treaty” on those points? Malcolm spouts endlessly against anyone else, but there is no “challenge” (except perhaps a weak facile one) when Ned posts.

                  And – as you mention, Ned does not EVER challenge the ridiculous and asinine comments from Malcolm that are ever present on almost every thread (no matter what the actual topic of the thread).

                  It’s like his “criticism” of Benson is tepid at best – and certainly NOT to any meaningful degree as to why that was one of the worst ever patent decisions (and yes, the “company he keeps” bites him on that as well with his “Stern” link; another of those “just enjoy the swagger moments”)

                2. Night, there is no doubt that there is a major gulf between your positions and mine. I am for keeping the cost of obtaining and enforcing patents low. But I am not for bad patents, patents that claim nonstatutory subject matter, patents that have vague and indefinite claims, patents that claim inventions at the level of abstractions.

                  But, trust me, Night, there is not an abuse that I oppose that you do not support. You advocate and promote illegality, unethical practice, abuse of the patent system. You do that in spades, sir. It is not me who is undermining the patent system and making it harder on the rest of us who are truly trying to protect the system from the likes of Google. It is your crassness and banality, as well as your support of abuses and unethical behavior, that is the problem.

                3. You advocate and promote illegality, unethical practice, abuse of the patent system. You do that in spades, sir.

                  Pure B$.

                  Ned, your Windmill chases simply are NOT pure and chaste as you would like the world to believe.

  2. 28

    Martin: I’m waiting on MM to discuss MPEG patents. [1]How are they possible and [2] why is there apparent consensus that they are OK?

    [1] They’re only “possible” because the courts have created a flimsy legal fiction that allows otherwise ineligible logic to be carried out on data if that logic is performed “on a computer”, and thus far nobody’s mounted a well-argued challenge to that legal fiction (even as reams of similar examples of logic “on a computer” have been tanked with the Supreme Court’s approval).

    [2] I have no idea whether there is “apparent consensus” or not. I’ve never consented to “MPEG patents” or any other patent on methods of applying logic to data to minimize the space required to store the data or the time required to transmit the data. Did someone take a poll?

    1. 28.1

      because the courts have created a flimsy legal fiction

      Sounds like you need to read (and understand) the simple set theory explication of the exceptions to the judicial doctrine of printed matter, as you are (once again) confused about what the judicial branch has actually done to the actual words used by Congress (your blaming the wrong people again – even though you are on record as volunteering an admission against your interests in knowing and understanding that controlling law…)

  3. 27

    “Put a shirt on” – classic mansplaining maneuver- yes, clearly I’m too hysterical to have thought through what I’m saying.

    “what you have done is take some strange abstraction in your head and said that the information processing is that abstraction and therefore ineligible. Makes no sense”.

    Yes, some strange judicial exception to abstraction exists in my head, not in the avalanche of Mayo/Alice cases that you and anon like to pretend don’t exist.

    “The reality is that information processing takes time, space, and energy”.

    Of course it does. Anything that happens in our universe takes time, space, and energy. Does it follow that anything that takes time space and energy is or should be patent-eligible? Of course not.

    “represented information is necessarily tangible”

    Information is intangible and no reasonable jurist, lawyer, legislator, or inventor could say otherwise. Your position is unreasonable and unsustainable.

    “Everything else is people’s brains being bothered by these machines for one reason or another”

    Neat little switch there from “information” to “machines”. Nobody is bothered by patents on computers or computing equipment of any kind. Nobody.

    Just in time to switch back to information from machines:

    “Think about it. What is really going on here is that many people don’t understand information processing and what it really is conflicts with a lot of their beliefs”.

    Yes, patents on information consumed by people conflicts with my beliefs in freedom of thought, pursuit of happiness, freedom of association, and freedom of speech, among others, along with the utter injustice of applying patent law to abstractions because they can never be reliably adjudicated or economically apportioned.

    There is a huge problem with patents on inventions whose economic effects (i.e. the value of infringement) arises from the quality of information generated by the invention when that information is used by people.

    That problem is dramatically smaller when the information is used by non-humans, because there is no abstraction in that use, because only humans are capable of abstraction.

    I’ve asked MM two times on this thread already to explain how MPEG patents are supportable – since they are entirely intangible and have no novel physical structure.

    Every court and judge is struggling with the same question: is it a technical effect? A technical solution to a technical problem? Something that improves the use of a computer or is limited to a computing environment?

    My solution is reasonable and makes obvious sense when you don’t have a vested interest in patents on everything that people do.

    Your position(s) are rather less supportable than mine. anon too is reduced to spouting word salad about sets and printed matter and legal terrain, while denying Mayo/Alice even exists.

    I’m waiting on MM to discuss MPEG patents. How are they possible and why is there apparent consensus that they are OK?

    1. 27.1

      Someone spouting a communication theory and “philosophy” as if it were a substitute for patent law is accusing anyone of “word salad” is just way too funny.

      Mr. Snyder, you have a vested interest in your own “world view” and have not bothered to understand patent law or any of the numerous constructive comments that I have provided on this thread alone.

      No one is denying the Supreme Court cases – the issue quite in fact is that those cases have mucked up what Congress set forth as the law under section 101.

      You don’t even get what the issues are. Your picture is apropos: you are way over your head in the deep end.

      1. 27.1.1

        You wish it were the deep end. The intentional obfuscation and “mystery” of patent law serves certain stakeholders very well, but a few years of study here on the Internet’s number 1 patent info source clears things right up for anyone who cares to enter the swamp.

        Good luck disentangling communication theory and philosophy from patent law- or any law- anon. Only a zealot would even consider that a possibility.

        In a way, your posts are like so many Alice patents; they don’t actually carry much in the way of anything new or interesting, but rather ideas about ideas, usually known only to you, repeated ritualistically, and never actually saying anything.

        1. 27.1.1.1

          It’s not a matter of “disentangling” as much as it is a matter of knowing what you are talking about.

          You simply don’t.

          Not about the communication theory/”philosophy” and certainly not about the law.

          You mistake your not understanding the substance with the view that there is not substance.

          That’s a “you” problem.

          1. 27.1.1.1.1

            More doubletalk. Which aspects of the law or the philosophy of semiotics or the plain meaning of the English language don’t comport with my prescription?

            Allow me; ‘asked and answered’ ‘do your own legwork’ ‘you are so far in left field (deep end) that its pointless to identify…etc. and onward.

            Still waiting for the 20 legal errors in my abstract, any month now.

            1. 27.1.1.1.1.1

              Your “prescription” does not fit what you are trying to make it fit.

              Square peg
              Round hole

              That you keep on trying to force fit says you just don’t understand either.

    2. 27.2

      Martin, information processing machines. I think the reaction to them is about the same as the reaction to the machines that took over our physical labor.

      A machine is sitting there performing useful work that many people pay, and yet it cannot be patented. Why again? Because of some abstraction in your head.

      Put a shirt on.

      1. 27.2.1

        Night, a machine that only calculates numbers from numbers performs the useful work of generating heat.

        It can also be used as a boat anchor.

        1. 27.2.1.1

          You really don’t know what you are talking about Ned.

          Let’s talk about encryption….

        2. 27.2.1.2

          Let’s contrast this apparent desire to disregard what happens “in the body” with patents for Pharma.

          These patents – and here let’s talk compositions – are useless (lack utility) until they are internalized. Their only utility occurs once taken INTO the body (and the “laws of nature – that is, natural metabolism; take over).

          Would this “no patent for what happens in the body” extend to remove patents for Pharma? On what “objective physical” basis would one rest for the difference between mind and body?**

          **yes, there is a basis, but as I posted at 26.1.1, a first step necessary in any inte11ectually honest discussion is recognizing that is is NOT “magic” or even “soul” that separates out the basis of what is being attempted – and – the abject failure of the Zombie of the re-animated Mental Steps doctrine needs to be beheaded.

          1. 27.2.1.2.1

            A physical change to a human body as a result of the use of a composition of matter will always be patent eligible.

            The zombie of “mental steps” or not, what happens within people’s minds is also utterly protected by the Constitution, and beyond the reach of any legitimate government authority.

            Good luck with any notion that there is no legal difference between body and mind- in support of patents(!) of all things….

            1. 27.2.1.2.1.1

              You are quite missing the point with your rather bland and conclusory “of course that will always be patent eligible.”

              Try some critical thinking.

      2. 27.2.2

        Night just stop conflating the means of data processing, which to me should be clearly patent eligible, tangible or not tangible, with the results of data-processing.

        Its as if the machines that took over physical labor were also taking over all the various products they produced. Ain’t right. Can’t be. An improved farm plow cannot create exclusive rights in tomatoes and cucumbers.

        Stuff that people consume, if protectable at all, should be handled under the copyright laws.

        Stuff that machines consume are machine parts.

        I’m on the right side of history, logic, and the actual discourse occurring among non-extreme stakeholders.

        1. 27.2.2.1

          Lol – that’s too funny.

          You are an extreme stakeholder, and you actively seek out those things that fit your “world view” even if they don’t fit the actual law, history, or facts.

    3. 27.3

      Martin; I’m waiting on MM to discuss MPEG patents. [1]How are they possible and [2] why is there apparent consensus that they are OK?

      [1] They’re only “possible” because the courts have created a flimsy legal fiction that allows otherwise ineligible logic to be carried out on data if that logic is performed “on a computer”, and thus far nobody’s mounted a well-argued challenge to that legal fiction (even as reams of similar examples of logic “on a computer” have been tanked with the Supreme Court’s approval).

      [2] I have no idea whether there is “apparent consensus” or not. I’ve never consented to “MPEG patents” or any other patent on methods of applying logic to data to minimize the space required to store the data or the time required to transmit the data. Did someone take a poll?

      1. 27.3.1

        That’s a fair response. The pertinent polling would be among the (currently) 19 people who matter; the 11 of the CAFC and 8 of the USSC.

        Among that polling set, there is no plurality to tank MPEG, encryption, or similar patents. What makes them “similar” is the crux of the problem, and has been the problem, and will be the problem.

        “Technical solutions to technical problems” or “improving the function of computers” or “problems limited to the Internet (or insert technical environment) are no more possible to fairly litigate than the Mayo/Alice test for abstraction.

        To be sure, Mayo/Alice is a vital development to combat a mountain of non-inventions made possible by the ordinary use of data processing technology and the ladder of abstraction available to claim drafters because of the open definition of “process” allowable by the patent act.

        As vital as Mayo/Alice is, procedurally it happens at the wrong point in cases, and without a solution to the lack of bounds of “abstract ideas”, it also inevitably becomes a” know it when they see it” judgement.

        MPEG patents look like “it” to enough people that they are never challenged, even though we all know they are 100% abstract. You know this is happening but you don’t have an answer either.

        I will keep pushing  my answer until someone explains why it’s more arbitrary, or less conforming in spirit and letter of the patent law than what is happening now.

        1. 27.3.1.1

          I will keep pushing

          Don’t forget to breath (above water).

          ;-)

          (Just because you don’t like the answers that you have been given, does not mean that you have not been given the answers. Hint: your square peg does not fit the round hole)

  4. 26

    Simple question:

    Does it require a physical process to go from unsort ( list of numbers) –> sorted (list of numbers)?

    Notice that the anti-patent judicial activists will not answer this question. I hope the readers realize that this question is like asking, do you agree the earth is not the center of the universe. It seems that the justices seem to think the answer is no. Certainly, Soot-in-my-ear, Stevens, and Ginsburg incredibly believe the answer is no.

    I think this is a very good question that illustrates that many of the judges and justices are operating on models of physics from the 1800’s.

    1. 26.1

      And, of course, the answer is yes and it is a direct result of the most important law of physics–The Conservation of Information.

      (I think that Stevens and his ilk believe that they have minds that exist outside their bodies where all the non-physical thinking goes on. It really is a spiritual issue for some and one of the reason we see such bizarre opinions from the SCOTUS.)

      1. 26.1.1

        Perhaps it is a spiritual issue at some level.

        But it is also an issue easily twisted by noting the other points of conversation here. Specifically, with the “sentience” angle and the fact of the matter that even if one recognizes the physical aspect of “information processing,” there exists an overlap of “information processing” and the (true meaning) of the mental steps doctrine that needs to be addressed.

        Getting people to realize that even human cognition is a physical act is just not enough.

        Without addressing this overlap, the re-animation of the Zombie mental steps doctrine is allowed to run amuck as we all see that THAT re-animated Zombie is used (abused) to broaden the “keep out” zone to any and all things “deemed as proxies,” when such proxies are fully embraced as patent eligible if they meet the actual requirements of 101 as Congress as written that statute (the requirements of utility and belonging to at least one of the broad statutory categories).

        Without addressing this overlap, the philosophy (and this philosophy is really only geared to communication theory) of semiotics is attempted to have its square peg pounded into the round circle of patent law.

        The trap can be seen in the entirely inconsistent Supreme Court treatment of claims that may have portions of the claim that be use mental steps.

        Inventions – under 101 – MUST use the claim as a whole paradigm. This is because it has long been understood that a portion of a claim may very well use a mental step – just so long as the claim as a whole is MORE THAN just a mental step. No one better exemplifies this point of dissembling than Ned and his attempted use of “Point of Novelty” for 101 purposes. I would be remiss at this point that the term coined by Prof. Crouch: the Vast Middle Ground, is the proper patent term to recognize in the discussion.

        ANY discussion point advanced that does not recognize and integrate these things is an attempt at obfuscation.

        When a claim – as chosen to be written by the applicant – the person set out by Congress within the law to be the one defining the invention – read as a whole – and allowed to use mental steps within the claim – is properly taken (per the law as written by Congress), and that claim is taken as a whole (without the attempted parsing by those legislating from the bench and their “directed to” or “gisting” or other ultra vires contrivances because they feel that applicants are “really after something else” and thus a claim is purposefully mangled, THEN the “magic show” and “witch hunt” has begun. This is exactly what preceded the Act of 1952 and is what prompted Congress TO act. It is clear that those “friends of the Court” want the Court to take actions as if the Act of 1952 never happened, that the Court’s pre-1952 common law power to set the meaning of the term “invention” was not taken away and replaced with the concept of obviousness.

        ALL of that is avoided if the legislating from the bench was properly stopped.

        This is entirely a problem of the Court’s making.

        The best Supreme Court decision that comes closest to recognizing this was Chakrabarty.

        It is no accident that Bergy was subsumed into Chakrabarty and the quote I provided below, which properly places the “new” aspect outside of what the legislators wanted to do with 101 – which was reflected in Bergy is thus reflected in the Chakrabarty decision.

        1. 26.1.1.1

          anon, I agree with you. There are two varieties. First, because the computer is doing what a mind could do t try and treat this like a mental step. Absurd. Second, say that the machine is merely doing what the mind is doing so it per se ineligible. Outrageously ridiculous. Half of cognitive science ph.d.’s are about trying to simulate human cognition.

          Both, are just outrageous. I really think that Taranto is little better than a felon. He intentionally misrepresents science and law to further his ends, which is essentially breaking the law with his side-kick Stoll.

        2. 26.1.1.2

          So communication is excised from information just because you say it is?

          So the study of symbols (semiotics), is excised from information because you say so, despite computational results often being models or simulations (i.e. symbols/synecdotes ) of real-world objects?

          So all utility is socially constructed ?(so easily disproved hardly even worth an example)

          Why even have a section 101? Why list “inventions patentable” at all when clearly everything that happens in the world is a process, so therefore anything “useful” in the world is subject to a patent?

          And of course, “useful” is what you say it is too. It’s not a training video, but it is a video game, but it’s not a player piano scroll, but of course it’s a player piano.

          The fact is that the judges of the USSC, CAFC, and district courts, and people in industry, and legislators, and other patent systems have demonstrably widely different philosophies around the relationship between information and patents is completely lost, as it must be, because they have not the vision or education of anon, who sees it all so clearly, or Night, who just knows that information is tangible and physical because a physical process is required to manipulate it.

          Of course, that being the case, nothing is intangible or abstract because brains are physical machines and without brains, what have we?

          1. 26.1.1.2.1

            I forgot the coup de grace:

            “ONLY those things entirely in the mind that are off limits to the patent world”

            Just what the founders intended, no doubt.

            1. 26.1.1.2.1.1

              There is NO “coup de grace” from you, because you still do not recognize the terrain of patent law.

              Your rambling here just shows how lost you really are.

              Take some time (instead of being reactive). THINK about each of the different facets presented to you, and stop trying to jam the square peg into the round hole because you may have thought you have found something that fits your pre-conceived notions.

              Get your head above water first, THEN breath.

          2. 26.1.1.2.2

            It is NOT a matter of “excising communication from information” – it is a matter of you trying to force fit a communication theory or “philosophy” to encompass more than what that theory or “philosophy” is even meant to encompass.

            As I have said, your handle on the “philosophy” is not impressive. It is just no substitute for understanding the actual legal terrain. Your attempts here make the negative connotations of “sophistry” look angelic in comparison (and that’s not a good thing for you).

          3. 26.1.1.2.3

            Put a shirt on. Martin, what you have done is take some strange abstraction in your head and said that the information processing is that abstraction and therefore ineligible. Makes no sense.

            The reality is that information processing takes time, space, and energy. That the laws of physics tells us that it is a physical process and that represented information is necessarily tangible.

            Everything else is people’s brains being bothered by these machines for one reason or another, e.g., economics (Google wants to make sure they can take anything they want), spiritual (Stevens thinks that computers are trying to steal his spirit), abstraction conflict (you, worried that somehow this doesn’t fit your mental models of some abstraction you have in your head, etc.

            Think about it. What is really going on here is that many people don’t understand information processing and what it really is conflicts with a lot of their beliefs.

        3. 26.1.1.3

          Ned and his attempted use of “Point of Novelty” for 101 purposes….

          It is almost as if anon has never read 103.

          But anon, truthfully, “point of novelty” has to do with Halliburton. Halliburton has to do with indefiniteness. That is a 112 issue, not 103.

          1. 26.1.1.3.1

            103…?
            112…?

            Ned, are you simply not paying attention? I am criticizing your attempted uses of “Point of Novelty” in the 101 sense.

            Clearly, your lack of respect for controlling law and the changes that occurred in 1952 continues to taint your comments.

            1. 26.1.1.3.1.1

              anon, PON is a 112 concept and always has been.

              Now, 103 speaks of “differences.” To some degree, this is the same as PON. Graham said so.

              101? WTF are you talking about? I do not have a clue.

              1. 26.1.1.3.1.1.1

                Of course not – but yet you will persist in 101 discussions to invoke a “Point of Novelty” argument…

                Maybe you want to bookmark this thread so that the next time you advance your “Point of Novelty” in a 101 discussion you can eat your words here…

                1. anon, I do not.

                  Novel subject matter is not the same as PON.

                  PON is specific to the Perkins Glue-> Halliburton line of cases. It has to do with and only with indefiniteness.

                2. Then why do you keep on bringing it up in 101 discussions? Please bookmark this page for easy reference the next time you try to use “Point of Novelty” in a 101 discussion.

                  Thanks.

      2. 26.1.2

        Night, for the conservation of information to apply here, the sort must be reversible.

        1. 26.1.2.1

          Ned,

          You continue to show your two dimensional understanding and still cannot step over the circle.

          Ned, if you cannot even handle the rather simple and straight forward set theory explication, you just don’t have the chops and Night Writer would just be wasting his time

          1. 26.1.2.1.1

            anon, explain just how the thermodynamics law of conservation of information applies to a data sort? Some of us mere mortals do not see the connection especially since the requirement that the process be reversible is not preserved with a data sort.

            1. 26.1.2.1.1.1

              Who says that it is not reversible and who says that you need it to be reversible?

              As I have pointed out, you just don’t have the chops to understand this and I won’t waste my time trying to explain this to you. Heck, you won’t even engage on the far far simpler set theory explication of the exceptions to the judicial doctrine of printed matter.

              Pearls before swine, Ned.

              1. 26.1.2.1.1.1.1

                anon, a sort is reversible only if any sort state conserves information about a previous state.

                No sort that I know of does. Night did not condition is argument on the conservation of information. He simply stated that a sort somehow conserved information when clearly it does not in the ordinary case.

                1. It’s his argument – and you just are not grasping the meaning of it.

                  I am not going to try to teach you that subject. As I mentioned to him, that’s like throwing pearls before swine.

    1. 25.1

      Ben,

      Which ones are not – and perhaps more importantly, where in the statute do you find this distinction?

    2. 25.2

      I think the fact that they are physical processes is very important. I do not think the SCOTUS understands this.

  5. 24

    Does it require a physical process to go from unsort ( list of numbers) –> sorted (list of numbers)?

    So, Ned, finally, has said that the answer is yes. We are going to get into the implications of this soon.

    MM: please also tell us your answer.

    1. 24.1

      Does it require a physical process to go from unsort ( list of numbers) –> sorted (list of numbers)?

      Depends.

      What do you mean by “physical process”?

      What does the term “go from” mean in this context?

      Here’s two numbers: 0 1

      Are they sorted or unsorted? Tell everybody.

      Let’s assume they’re sorted, just for sake of argument.

      Now let’s assume they’re not sorted.

      Has a “physical process” just taken place?

      You’re a very serious person, NW! You’ve surely thought about this a lot. Let’s hear your super deep answers.

      1. 24.1.1

        What does the term “go from” mean in this context?

        It’s pretty self-evident that it means that you have a change in order.

        Your rather crappy strawman falls apart immediately when you actually try to be inte11ectually honest about having a conversation on the matter.

        (no one is shocked)

        1. 24.1.2.1

          Night, over the years you have been very insistent on calling others, with whom you disagree, professional blog posters.

          I think you protest too much.

          Readers can draw the wrong conclusions about Night.

      2. 24.1.3

        So, MM, is your thinking a physical process?

        The SCOTUS which works from pre-1920 intellectual advances seems to think not.

      3. 24.1.4

        MM, life I more interesting is how Night can talk about “sorts” and at the same time talk about the physical law of nature known as “conservation of information,” when as we all know at the end of the sort one cannot know what the state of the information was prior to the sort. But the law of conservation information requires us to have a reversible process. But the sort is not reversible.

        Night has never explained to anybody, ever, just how his reliance upon a fundamental physical law of nature has anything to do with data processing, let alone patentable subject matter. He just seems to want us to assume such a linkage without any explanation whatsoever. This is been going on for years here and elsewhere, and no one, to my observation has ever challenge him on this complete nonsense. I wonder why?

  6. 23

    Because black holes exist, we must support junk software patents.

    Deep stuff. And totally not thread hijacking to repeat this nonsense over and over again.

    Discussing actual junk software patents and the ongoing farce at the Federal Circuit. Hush now! This is black holes we’re talking about, baby.

    1. 23.1

      Does it require a physical process to go from unsort ( list of numbers) –> sorted (list of numbers)?

      Notice no answer to this. Just more nonsense.

      1. 23.1.1

        Notice no answer to this.

        The fact that nobody responds to your silliness is evidence that you’re a silly person.

        The fact that you try to read deeper meaning into the lack of response is evidence that you’re a arr0gant and deluded.

        Now maybe we can discuss some interesting stuff that isn’t old news.

        1. 23.1.1.1

          You just responded – and you could not even respond on point…

          What does THAT say about your silliness…?

    2. 23.2

      I think that wha thou are doing Malcolm is called dust kicking.

      Put the discussion back in context please.

      1. 23.2.1

        Put the discussion back in context please.

        LOL

        In the rubber r00m with The Bobbsy Twins? No thanks.

        I’m waiting for you two to bring up the “stars in the night sky” again as justification for patenting “new signals.” That was a lot of fun. Still is fun to remember! You two really are a great comedy team.

        1. 23.2.1.1

          Why are you waiting – did you have anything actually on point to say to that “while you are waiting”…? Funny, you never seem to be able to say anything substantive and on point while those discussions are actually underway.

          Merely the same old type of personal sniping from you – nothing more.

          “Go figure Folks”

        2. 23.2.1.2

          In the rubber r00m with The Bobbsy Twins? No thanks.

          In a nut shell – this is the blight that we all are celebrating a Decade of Decadence with.

          Malcolm feels that staying in context is just not required of him when he deigns to name-call those having a conversation.

          He places himself above any set of “rules” meant to actually have dialogues. And this sA CRP from this sAme person is seen day in and day out, all the while he just doesn’t care what any one thread is about and spews his propaganda on nearly every thread.

          The “rules” are as the “rules” are enforced.

          Yay “ecosystem”

  7. 22

    The anti-patent judicial activists such as Ned will not answer the following question. Regarding the role of the most important law of physics–the conservation of information with information processing patents.

    So, let’s pose a simple question that even Ned won’t be able to wiggle out of:

    Does it require a physical process to go from unsort ( list of numbers) –> sorted (list of numbers)?

    Notice no answer to this.

    The conservation of information means that information is not intangible: it is definite. And it means that to transform the list of numbers requires a physical process.

    1. 22.1

      1. There is no such physical law as conservation of information.

      2. The Second Law of Thermodynamics requires that information cannot even be conserved, except by (rare) processes that consume no free energy. In fact, information is destroyed constantly.

      1. 22.1.2

        Owen, Prof. Suskind 0f Stanford says,

        Proper laws of physics are reversible and therefore preserve the distinctions between states – i.e. information. In this sense, the conservation of information is more fundamental that other physical quantities such as temperature or energy.

        link to theoreticalminimum.com

        Are you suggesting that this is not the case?

        On point 2, of course entropy increases. What does this mean to you, that the reason entropy increases is the loss of information?

        There is the problem of the black hole where an object moves from here to there, across the event horizon. Even thought we cannot see it, the object still exists because we can feel its gravity.

        Black holes disappear over time unless replenished. Some think the mass goes to another universe. But what if the mass in converted into energy in this universe by reason of gravitation?

        1. 22.1.2.1

          So, Ned is going to delve into every tangential issue and not answer the question.

          1. 22.1.2.1.1

            Ned has made it a habit of abandoning any conversation that will lead to him not able to chase his Windmills.

            The times that he chooses silence screams louder than any of his arguments.

            1. 22.1.2.1.1.1

              Absolutely. It illustrates that Ned is unethical and an anti-patent judicial activist.

              It is the same tactic that Lemley, MM, etc. use. And Taranto and Stoll.

              To my mind, these people are basically criminals. They are intentionally misrepresenting science to further their agenda and subverting our legal system. These sort of people are the reason we have Trump. It is going to get much worse.

              1. 22.1.2.1.1.1.1

                The parade of horribles aside,I just want to point out the abuse of this forum by this type of Internet age “shout down” and ad nauseum ad infinitum spewing of propaganda that refuses to engage, acknowledge, and integrate the counter points raised in good faith and the plain fact that the sAme disingenuous “arguments” are then merely parroted on every successive thread by the sAme ones as if the counter points were never presented at all.

                A cycle of blight that has been documented for certain sAmeones here for more than a decade now.

                1. “shout down” and ad nauseum ad infinitum spewing of propaganda

                  Says the hyp0critical psych case who frequently compares critics of junk s0ftware patents to murderers.

                  But he’s a very serious person! We all have to pay attention to him. He’s really imp0rtant and if we don’t listen he’s going to take all this “innovations” away. Boo hoo hoo! How will I ever figure out how many movies are in my watchlist?

                  LOLOLOLOLOL

                2. …and the short script poker tell of “so serious”…

                  Maybe something (anything) on point…?

          2. 22.1.2.1.2

            Night, it is you, not me, that links the law of nature to data processing as if that were important. I simply want to hear from you as to why you link the two.

            1. 22.1.2.1.2.1

              Does it require a physical process to go from unsort ( list of numbers) –> sorted (list of numbers)?

              Notice no answer to this.

              1. 22.1.2.1.2.1.1

                I wonder what the “semiotic” answer is…?

                Especially for a non-sentient machine…

                ;-)

                1. The semiotic analysis might be that the numbers are referents, since there is social agreement of meaning.

                2. ALL utility is touched with that “social agreement of meaning.”

                  You are trying to fit the square peg of philosophy into a round hole of law.

                  (hint: it does not fit)

    2. 22.2

      Conservation of information is “the most important law of physics”? Since when? Can you provide a citation for that? I don’t even think that’s a “law” yet, as its an open question what happens to information in a black hole.

      1. 22.2.1

        Ben, it is and has been abundantly clear to a lot of us for a very long time that Night has no idea what he is talking about.

        1. 22.2.1.1

          Ned, you just refuse to answer the question.

          I will take that as an admission against party interest.

    3. 22.3

      Night, again, the conservation of information, the law of nature you speak of, is a matter that relates to entropy and thermodynamics.

      Regarding a sort, if one were to say data processing information is conserved, one would be able to go both directions in the sort at any time. But, as you and I both know, the result of any sort does not preserve enough information to reverse the process. Thus even in your data processing, example, there is no conservation of information.

      Now suppose the universe has states, 0, 1 and 2, …, at adjacent moments in time. The information conservation principle would require us to know not only the state of the universe in state 2, but in addition enough information for us to to know what the previous state, number 1, was plus its information so that we might know what state 0 might be.

      Now I asked you for your opinion about whether it takes energy for the universe to move from one state to another, and if so where does this energy come from? I personally think unless that there is energy being supplied to the universe from an outside source, energy (including mass) content should be constant even though entropy is always increasing. Do you agree or disagree with this notion?

      1. 22.3.1

        Ned, you are saying lots of tangential stuff. I do like talking about this stuff and studied it for years as a graduate student. But, I would like you to answer my question as it is the relevant question for patent law.

        Does it require a physical process to go from unsort ( list of numbers) –> sorted (list of numbers)?

          1. 22.3.1.2.1

            I went to graduate school for AI and theoretical computer science at one of the top schools in the country. In the top 5.

            1. 22.3.1.2.1.1

              Your graduate school classes in computer science and artificial intelligence involved years of study of fairly specialized quantum mechanics? That seems unlikely. I could see it being true for someone specializing in quantum computing, but AI? Unlikely.

              1. 22.3.1.2.1.1.1

                I agree that my graduate training does not qualify me as an expert in quantum mechanics. Although I did spend some time studying quantum computing back in the 1980’s. That was actually something that people in theoretical computer science were interested in.

                Nonetheless, what is relevant for patents is whether represented information is intangible and whether information processes methods are physical.

                1. Ned, you seem to want to take some tangents again. Quantum mechanics is a tangent.

                  Flook: the problem with Flook is easy to understand. It used to be that mathematical equations to use their terms were like tools. They weren’t the end result, but rather things people used to get the result. This is a view that started to change around 1920 –but probably before with IBM punch cards for the 1900 census.

                  But, the big picture is that mathematical algorithms are no longer the tool, but the invention. We have shifted to now working on building information processing machines.

                  Lots of theory could be added to support this.

                2. Ned asks: “Please address Flook.

                  Which version are you referring to, Ned?

                  As I stated below: Consider both Diehr and Bilski which expressly reference that Flook was cabined.

                  A “blind”reference to Flook is unavailing.

                3. Night Writer,

                  You are falling into the Br’er Rabbit trap with your loose talk of “math.”

                  There is “math.”
                  There is “applied math.”
                  There is “MathS.”

                  Loose talk of one of these as being a mere substitute for another only opens the door for anti-software patent obfuscationists to badger you.

                4. Night, the math can be inventive, but it must be applied to do something useful. That is the takeaway from Flook.

                5. Good thing that software is not math then, eh Ned?

                  When was the last time you saw software manufactured “just because” and without a goal for some type of utility?

                6. Ned, math is nothing but a construct our brains has devised. It is just part of the information processing.

                7. Night Writer,

                  You are setting yourself up to be twisted, as you continue to post too loosely in regards to “math.”

                  In the MathS philosophy, which is admittedly an extreme no doubt, but even along the spectrum to that extreme, “math” is external to the human experience. If mankind never arose, one plus one would still equal two.

                  I believe that you want to reference “applied math” which has always been patent eligible as it carries with it the “hand of man” that is required under the utility requirement of 101.

                  Something may exist – something may be made, but without utility, then you do not meet 101.

                  This is what distinguishes a “pure discovery” from a discovery covered under patent law.

                  Sadly, this simple notion has been lost to the Supremes, who very much are caught up in their power addiction and seek to legislate from the bench as to what types of innovation that they deem are to be worthy (a task that simply is NOT their job to perform).

                8. Night, math may be constructed by man, but the laws of nature it describes exist. Therefore, knowing the laws of nature, we can derive, I believe the mathematics of alien races by comparing what they say about these laws with their nomenclature.

                  Regardless, mathematics are essential for describing laws of nature and patenting mathematics can (but not necessarily in every case) effectively preempt scientific investigation into laws of nature.

                  Do you agree or disagree on this.

                9. Ned,

                  You need to understand better what is and what is not preempted by a patent.

                  Scientific exploration?

                  No.

                  Exploitation?

                  Yes.

                  Your FUD needs work.

            2. 22.3.1.2.1.2

              My Dad always liked to point out that Einstein might not be qualified to speak as an expert on topics other than physics.

      2. 22.3.2

        Note too that there are papers written about a minimum amount of energy, time, and space required to sort numbers.

    4. 22.4

      Note too that the another part of ridiculousness of this opinion is saying that information processing is just like people’s cognitive processes.

      One only need to understand how a chess program works to know that is ridiculous. Taranto has no ethics. He intends to burn down the patent system by any means with his pal Stoll.

      1. 22.4.1

        See 13.1 and the new post today at the end of the 13.3.1.1.1.3.2 series.

        ALL of this directly ties to the reanimated Zombie of the mental steps doctrine. A proper explication of that doctrine would be a bucket of sunshine and would disperse the muckery of shadows associated with the dissembling of that Zombie virus.

  8. 21

    Interestingly there is a published PCT application corresponding to the three US patents in issue here, but no attempt was made to nationalize/regionalise that application in the EPO or anywhere else. Either the invention was perceived to be of no commercial interest, which is doubtful having regard to the present litigation, or advice was given that the invention was not patent-eligible.

    I repeat the comments I made on Patent Docs:

    “A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.”

    It is difficult to see anything sufficiently transformative in the claimed method to bring the claimed combination clearly within section 101. A quick look at the specification does not help. What can you do with the information, and how can you better control the grid?

    1. 21.1

      Mr. Cole,

      Whether pursued or not, the mere presence of the corresponding PCT application settles the speculation below as to whether or not a non-publication request was made in the Con children.

      That “result” is now settled as a firm “NO.”

  9. 20

    More incredible junk at issue today. US Bancorp’s CBM petition under 101 was rejected by the PTO in a ridiculous decision (Judge Hughes expresses his puzzlement in the oral argument; perhaps the cheerleaders over at PatentCrocks should take note?).

    Check out this g@rbage, which the PTAB has now deemed non-obvious:

    1. A method for processing paper checks, comprising:

    a) electronically receiving a data file containing data captured at a merchant’s point of purchase, said data including an amount of a transaction associated with MICR information for each paper check, and said data file not including images of
    said checks;

    b) after step a), crediting an account for the merchant;

    c) after step b), receiving said paper checks and scanning said checks with a digital image scanner thereby creating digital images of said checks and, for each said check, associating said digital image with said check’s MICR information; and

    d) comparing by a computer said digital images, with said data in the data file to find matches.

    Welcome to the Farce, folks. Nobody could have predicted that scanning technology and computers could be used to validate checks. Oh but wait! “Merchant’s point of purchase.” That changes everything. Because that’s totally different from “back office conversion” … except not.

    The attorney for Bancorp really, really needs to learn to modulate his speaking voice. It’s grating as all heck. Better still, Bancorp should probably just find some better attorneys because this is some seriously low-hanging fruit that shouldn’t be hanging on the tree next to any skilled patent attorney.

    1. 20.2

      Have you ever thought of starting your own blog instead of the nigh constant thread h1jacks that you engage in here…?

  10. 19

    Anybody want a fresh glimpse at the farce? Check out the oral arguments in Clearplay vs. Customplay. Clearplay believes it invented something called (LOL) a “navigation object” (which isn’t an object at all) which is nothing more than a set of rules for determining when to start and stop “filtering video content”. Sure, the prior art teaches those rules. But not the “object”

    Highlights:

    Patent Attorney (desperately trying to create an issue): “What does ‘start’ mean”?

    “The Board never proved that there was a start position in the prior art. … The beginning frame of a segment [to be filtered] is not a start position because it does not define when to start a filtering action.” <— this is supposed to be compelling and persuasive?

    This is like claiming "a capybara racetrack with a start line and finish line" and arguing that the prior art doesn't teach the recited "starting line" because nobody raced capybaras before. Get a clue, people.

    Note: this junk could and should have been tanked under 101 in two seconds without all this 103 nonsense. The AIA needs to amended to allow institution based on failure to satisfy 101.

    1. 19.2

      Here’s ClearPlay’s incredibly junky claims:

      1. A computing system comprising:

      a first computer readable media including computer executable instructions comprising:

      a multimedia content navigation object comprising:

      a start indicator associated with a first position in a multimedia content presentation;

      an end indicator associated with a second position in the multimedia content presentation;

      at least one content descriptor identifying a type of multimedia content associated with the multimedia content presentation between the first position and the second position;

      at least one filtering action associated with the start indicator and the end indicator, the at least one filtering action comprising a skip filtering action; and

      at least one processor in communication with the first computer readable media and configured to decode and deliver the multimedia content to a display, the at least one processor further configured to monitor a position code of the multimedia content during decoding, the processor executing a skip filtering action when the position code matches the start indicator of the multimedia content navigation object, the skip filtering action causing the processor to discontinue decoding the multimedia content between the start indicator and the end indicator, and to immediately resume decoding and delivering the multimedia content after the end indicator.

      The attorney for Customplay, by the way, did an excellent job blowing ClearPlay’s giant cloud of kicked-up dust out of the room. This should be an easy Rule 36 affirmation. If the CAFC manages to screw this one up, then we can safely write the entire system off.

      Remember this one.

    2. 19.3

      MM, perhaps it would do us all good to ask Plager and Bryson, who together with Rich, gave us State Street Bank, to publicly confess their guilt and to take the Rader approach to solving the problem of their continuing presence on the Federal Circuit.

  11. 18

    Ned is continuing to question the role of the most important law of physics the conservation of information with information processing patents.

    So, let’s pose a simple question that even Ned won’t be able to wiggle out of:

    Does it require a physical process to go from unsort ( list of numbers) –> sorted (list of numbers)?

    Notice no answer to this.

    The conservation of information means that information is not intangible: it is definite.

      1. 18.1.1

        Ned, you didn’t answer my question. You have turned into such a low person. So, now according to the great physicist Ned, a law cannot have to do with information processing and thermodynamics and entropy?

        Answer the question.

        1. 18.1.1.1

          Night, I have never denied that a sort of data in a machine or by a machine requires energy. I have repeatedly agreed that it does. I just do not believe it has anything to do with what the law of nature regarding conservation of information. You keep on saying this as if there was a correlation between data processing and conservation of information and therefore that somehow what you are saying should be self-evident that everybody that knows anything about physics. What I am asking you is to connect the dots. Show us why this particular law of nature has anything the due with proving anything about data processing.

          I think that the only relationship between the law of nature and data processing is the word information, and that you juxtapose these two ideas together only because you do not understand either one of them. You are babbling. You are calling other people idi-o-ts and worse for not agreeing with you. If you were to try to present your arguments to a court of law, not only would the court sanction you for wasting its time, but the bailiff would call the local psychiatric hospital and have you carted off.

  12. 17

    HoPB Information is just another way of measuring and describing the physical world.

    Information doesn’t measure anything. People measure things. Devices measure things. Processes measure things. Your premise is false. Find a better premise.

    The role of information in a claim should be no different than the role of these other theories that are frequently relied on to describe inventions.

    Unfortunately for you, very very few people have ever agreed with this exceedingly strange statement in the history of patent law in this country, or any other country on the planet. In part, that’s because it takes two seconds to imagine where such a policy would lead (and that assumes you were born yesterday and can’t see the damage that was done already).

    You can measure and qualify and quantify … information content.

    Indeed. You can measure and qualify and quantify abstractions (“Bob has 123 friends, and 12 of them owe him more than five dollars”). People have done so for thousands of years. Nevertheless, new information content or new methods of creating information content are not eligible for patenting. They’ve never been eligible for patenting. And again: there are obvious reasons for this restriction.

    modeling the physical world

    Theoretical models are abstractions that don’t belong in the patent system. When a patent system expands to include logic and other abstractions, the system quickly turns into a farce that is easily abused by lawyers and other professional manipulators of information and other abstractions. Those of us who have been following closely know that is exactly what happened in the US. The system went completely off the rails for at least a decade. The result is mess that will take decades to clean up. That’s the process we’re in now (and, no, it’s not a patentable process, nor would granting patents on the specifics of that process accelerate that process).

    If you really, really, really want to grant patents on information and logic, then propose a system for consistently and fairly evaluating what information deserves patent protection in light of the information and logic humans (and other animals) have been successfully using for eons. I wish you lots of luck with that because you’re going to need it. Nobody’s come close to developing a workable system yet. You can be the first! You’ll be famous.

    1. 17.1

      A physical process is required to process information.

      A physical process is required to process information.

      A physical process is required to process information.

        1. 17.1.1.1

          “Old” is just not an eligibility argument, Mr. Snyder (keep your eye on the point of the discussion).

      1. 17.1.2

        So? But, I think, an eligible process would additionally require either or both mass or momentum as an output.

          1. 17.1.2.1.1

            Talk about windmills. you want to excise “new” from 101 based on your feeling that the 1952 act moved the entire novelty inquiry to 102/103. Yet no matter how many cases demonstrate that some reference to prior art is needed from time to time in eligibility analysis, you persist. “Old” is an eligibility argument; the USSC and the CAFC say so repeatedly.

            1. 17.1.2.1.1.1

              Nothing at all about “excising” Mr. Snyder – merely understanding and applying the 1952 law as written (maybe you missed the day where the “new” in 101 was shown to be directed to 102/103….)

              1. 17.1.2.1.1.1.1

                We ALL missed that day. Please point out any memorialization of that day of jubilee. {{{{holding breath}}}}

                1. This is what I was able to find:

                  “Section 101 states three requirements for patentability: novelty, utility, and statutory subject matter. 18 Of these three requirements, however, only utility and statutory subject matter are applied under section 101.19

                  18. See note 4 supra for the text of § 101.
                  19. That the novelty of an invention should be considered under § 102 and not under § 101 is the apparent intent of Congress. A reviser’s note accompanying § 101, when it was enacted in the 1952 Patent Act, stated: “The corresponding section of the existing statute is split into two sections, section 101 relating to the subject matter for which patents may be obtained, and section 102 defining statutory novelty and stating other conditions for patentability.” H.R. REP. No. 1923, 82d Cong., 2d Sess. 6 (1952); S. REP. No. 1979, 82d Cong., 2d Sess. 5 (1952). In Bergy, the court noted that “[tlhe PTO, in administering the patent laws, has, for the most part, consistently applied § 102 in making rejections for lack of novelty. To provide the option of making such a rejection under § 101 or § 102 is confusing and therefore bad law.” 596 F.2d at 961, 201 U.S.P.Q. at 361. The court in Bergy also noted that there have been only two instances where the PTO has made rejections for lack of novelty under § 101. Id., citing In re Bergstrom, 427 F.2d 1394, 166 U.S.P.Q. 256 (C.C.P.A. 1970); In re Seaborg, 328 F.2d 996, 140 U.S.P.Q. 662 (C.C.P.A. 1964).”

                  Last accessed 05/08/2016 from link to via.library.depaul.edu

                  You can breath now.

                2. Some scraps of legislative history (they left the “new” there by the way) and some random dicta by a judge who admits that some cases have been disposed of for lack of novelty under 101 hardly comes close to balancing the manifest reality of Alice/Mayo.

                3. LOL – those “scraps” are far more than what you have (“manifest reality” indeed – you do know which branch of the government the Constitution allots authority to write the statutory law that is patent law, right?).

                  Maybe you want to surface from being under water before you take that breath…

                4. They also left the following in there:

                  subject to the conditions and requirements of this title

                  Spend less time with your mind stroking “philosophy” and more time understanding law.

    2. 17.2

      Theoretical models are abstractions that don’t belong in the patent system.

      This is not a pipe.

    3. 17.3

      MM and his ilk do the following:

      What information processing inventions are ways of processing information that requires time, space, and energy.

      Nothing you wrote above has any relevance to reality MM.

  13. 16

    The “scrivining” in play here appears to be to use “common sense” as a cloak for “common law” type of judicial law writing.

  14. 15

    Ned is continuing to question the role of the most important law of physics the conservation of information with information processing patents.

    So, let’s pose a simple question that even Ned won’t be able to wiggle out of:

    Does it require a physical process to go from unsort ( list of numbers) –> sorted (list of numbers)?

  15. 14

    Bert: “Nobody understand science as good as me do! Judges need spankings because of that.”

    Nan: “The Grand Hall has a proton in a box. Plus that’s a hint.”

    Bert: “Information is conservation! This is why you have to love software patents. Judges are so bad.

    Nan: “Here’s another hint: Chamberlin had a theory about sets, too.”

    Bert: “I’m scared! I’m scared! When do we impeach all the anti-science judges?”

    Nan: “This is just like killing people for religious reasons, except nobody’s getting killed and we’re the craaazy ones.”

    Bert: “Mommy!”

    1. 14.2

      The paid blogger MM had to have the first post to cover my post. My guess is that is part of his guidelines for performing his paid blogging duties.

      1. 14.2.1

        Now come on Night, his characature was pretty funny – and clearly was taking snippets far out of any realistic meaning and context.

        Let’s see the same effort of characature for the anti’s though (and see if his sense of humor works with him under the spotlight).

        I won’t be holding my breath.

  16. 13

    The opinion is based on the following two misrepresentations of science. Shameful. Outrageous. Incredible that in 2016 two judges Taranto and Stoll could write such misrepresentations of science. The Fed. Cir. is supposed to have judges that understand science. Removal would be the appropriate response.

    “In a similar vein, we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category.”

    “Information as such is an intangible.”

    1. 13.1

      The “essentially mental processes” is the Zombie of the old “mental steps doctrine” (as noted below at post 6.3).

    2. 13.2

      Also, to Ned, regarding the most important law of physics which is the conservation of energy.

      The point is that transforming information is a physical process.

      Riddle me how information processing could not be a physical process if it requires a certain amount of energy to sort a list of numbers?

      (I believe that Ned is not intellectual honest person and is tro11ing me on this subject. Let’s see if we get a substantive response form him.)

      1. 13.2.1

        …pearls before swine…

        (It’s difficult enough to try to get Ned to be inte11ectually honest on straight forward patent law items, so your chances with a high-brow high physics concept is next to nothing)

      2. 13.2.2

        Night, when the universe changes state, the physical universe is physically changed. The information contained in the universe is not transformed by some sort of mechanism that requires energy. The information content is rather conserved.

        One observes the explosion. The energy of the explosion is from the chemical processes. But the information from one moment to the next about the explosion is conserved so that one, observing the state of the explosion at a moment in time can determine its state at any time prior.

        But this has nothing to do with eligibility for patent protection. Nor does it have anything to do with information processing. The only reason you get away with linking the two is the word “information.”

        1. 13.2.2.1

          Ned, you did not address the substance of what I wrote, did you?

          That is the pattern with you. Address the riddle I posed.

          And, yes, what you wrote is basically correct except the last part.

          I could pose questions about your example that would illustrate my point, but then I already did that once with sorting and you didn’t address my point.

        2. 13.2.2.2

          I have to say that I am pretty tired of being tro11ed by you Ned. If there was an ignore, I would use it on you.

          The fact is that the information processing is a physical process and the conservation of information makes that clear.

          You get it? You want a state of information A from information B and that isn’t going to happen for free. You will need a physical process that takes time, space, and energy to get to information A.

          So, address that directly and stop your tangential nonsense.

          And, address directly what I said about sorting and the driving.

          All the anti-patent nonsense is based on a proposition that information is intangible and transformed in some non-physical process. Ridiculous.

          But, I am sure you will produce some more tangential nonsense. You must be a paid blogger like MM to be doing this. Or at least you are doing this to advertise your services.

          1. 13.2.2.2.1

            Night, I do no dispute that a physical machine that processes information expends energy.

            But so what?

            And, this has nothing to do with the law of nature regarding conservation of information.

            And neither have anything to do with why subject matter is eligible.

            1. 13.2.2.2.1.1

              Except that it means that the information processing claims are necessarily a physical process.

              There is nothing intangible about them. There is nothing abstract about them. They are a physical process and we know that has to be so because of the conservation of information.

              1. 13.2.2.2.1.1.1

                Night, OK. But, the Supreme Court is using “abstract” completely out of context so that it confuses.

                What matters with respect to any physical process is the result of the process. Now with a computer just computing and not connected with something else like a graphics processor, the output is a number.

                But numbers are not really the kinds of things that are the subject of patents even if the process that produces it consumes energy.

                1. The Supreme Court is surely not the only one here being confused Ned (count yourself as in that group, please, thank you)

                2. Not really the kind of things…

                  Do you want to talk about (in truth, run away from) encryption again Ned?

                3. anon, consider Flook. I think the court was clear that when the output is only a number, that is not enough. Ringing an alarm might have been.

                4. Consider both Diehr and Bilski which expressly reference that Flook was cabined.

                  A “blind”reference to Flook is unavailing.

    3. 13.3

      Absolutely correct. Information is just another way of measuring and describing the physical world. Do a lot of work with your smart phone and feel how hot it gets. That’s information in action. As I’ve said on P-O before, information theory is being used in all fields of science to model physical phenomena. In a sense, information is an “abstraction”, just as, say, pressure is. You can measure and qualify and quantify the pressure of something just as you can with its information content. Nonetheless, information theory, like fluid dynamics theory, entropy theory, and others, is just one of many scientific ways of modeling the physical world. The role of information in a claim should be no different than the role of these other theories that are frequently relied on to describe inventions.

      1. 13.3.1

        Information apprehended by human beings is different from all other information.

        1. 13.3.1.1

          You are engaging in a fallacy Mr. Snyder.

          Does a tree falling in the woods with no human present make a sound?

          Does information only exist if a human is there to “apprehend” it?

          What you are doing is confusing the extant information with the separate processing of that extant information inside of the human mind.

          The baseline extant information exists nonetheless (with or without the additional human mind processing).

          The information remains as is – machines (still being machines) are doing processing. Some just don’t like this and attempt to change the machine into a proxy of the human mind and seek to employ the Zombie of the mental steps doctrine to that proxy.

          This is the foundation of my coined term of anthropomorphication – the attempt to have machines have the same “legal standing” as actual human minds.

          1. 13.3.1.1.1

            It is YOU engaging in fallacy anon. Abstraction only exists in the presence of a human mind.

            A tree falling does not make a sound. Sound is vibration, transmitted to our minds via the mechanics of the ear, and recognized as sound only within our minds The tree will produce waves in a fluid. Those waves are not sound, because if there are no ears, there is no sound. This is very well accepted in both scientific and philosophical communities. QED, you are wrong.

            Likewise, information may be arrayed in the world, but without a mind to perceive it, there is no possibility of abstraction. When a non-human actor consumes information, it does so without abstraction. QED you are also wrong about my proposed solution.

            1. 13.3.1.1.1.1

              MS: When a non-human actor consumes information, it does so without abstraction.

              And if you describe that “non-human actor” in objective physical/structural terms that distinguish that “non-human actor” from other “non-human actors” in the prior art, then you can get a patent on that “non-human actor.” See how that works?

              1. 13.3.1.1.1.1.1

                …and once again Malcolm wants to make an issue out of his canard of trying to make an optional claim format be a de facto NON optional requirement….

                Still struggling with what it means to be “optional,” eh Malcolm?

              2. 13.3.1.1.1.1.2

                Just pick up where we left off below:

                Which objective physical/structural terms distinguish MPEG codecs from the prior art?

                None. So you think the MPEG patent(s) are ineligible, correct?

                And you think there is no policy plurality among judges, the bar, and industry that concludes that the MPEG patents should be eligible- somehow- under an “improving the computer” or “technical solution to technical problem” test? Or you won’t accept that without accurate polling, notwithstanding the demonstration of CAFC and district court opinions?

            2. 13.3.1.1.1.2

              The transmission exist even with no one there to hear them.

              You acquiesce the key point – and likely are unaware that you have done so.

              1. 13.3.1.1.1.2.1

                anon there is a thing called the Internet, and using it, you can find that the question has been explored, and the overwhelming learned consensus is that there is no sound when the tree falls if there is no mind to perceive a sound within range.

                Right now there are waves permeating my environment that contain Rush Limbaugh’s voice, inter alia, but without a radio, those waves have no meaning and surely no economic value.

                So information without a mind or device to use it has a null meaning- and there are large legal, philosophical, and practical differences between human meaning applied to information and the attenuated (or non-meaning) of information when used by a device.

                Terrain and Holiday Inns or something are what you apparently lack on this topic.

                1. You still miss the point, Mr. Snyder by so focusing on “sound” as defined as something within the human mind, as opposed to the extant information before the human mind does its additional processing to that extant information.

                2. So information without a mind or device to use it has a null meaning

                  Absolutely not and the opposite is true.

                  The information is still very much there and still has the same meaning that it always has.

                  You enter a room and turn the lights on.

                  You then leave the room.

                  Do the lights no longer exist because you are not there to “apprehend” them…?

                3. Of course the light exists; light is the information-vehicle- it physically carries the sign/meaning. The vehicle should always be patent-eligible.

                  Some meaning of a lit room is a shared social construct- we all recognize when the lights are on or off and to turn them on in the night and off in the day. That’s the information’s referent. That could sometimes be patent eligible, for example, MPEG or encryption.

                  The value/meaning of the information about the lights to a human being is the information’s interpretant- and that is unique to every individual and should never be patent eligible.

                  Semitoics are an actual branch of philosophy- these are not my personal constructs…

                4. While you were enjoying your mental spank of semiotics, you failed to realize that you just contradicted yourself (the “null value” statement).

                  Congrats.

                  ps: you are not impressing anyone with that “branch” of “philosophy”

                5. Mr. Snyder,

                  Do you know how optical illusions work?

                  They work because the input to the eye is coalesced at the optic nerve prior to transmission to the mind. We have more rod and cone nerve capturing devices than we have neural pathways to the occipital lobe.

                  The point here that you seem unable to grasp is that the information “out there” IS exactly the same prior to any human processing.

                  That same information is “apprehended” by either a human or a machine. It is not “magically” some different information. It is ONLY within the human that human processing makes additional changes.

                  Now, once you understand that, you then need to appreciate that it is ONLY those things entirely in the mind that are off limits to the patent world. The patent world – in claims taken appropriately as a whole – FULLY allows portions of claims to be things that have been processed in the mind.

                  This too is reflected in a proper understanding of the exceptions to the judicial doctrine of printed matter. Do you remember the lines on a measuring cup example that I asked you to consider?

                  The greater aspect of utility that you have not yet grasped is what will set your thinking of patent LAW on the correct track.

            3. 13.3.1.1.1.3

              “Abstraction only exists in the presence of a human mind.”

              So, when the shark smells blood in the water, he has no ability to abstract that there is food nearby?

              There is a converse, Martin. Just because we cannot perceive something does not mean that it does not exist.

              1. 13.3.1.1.1.3.1

                Mr. Martin is stuck in his two-dimensional circle, unable to walk above that continuous and closed loop of a line.

              2. 13.3.1.1.1.3.2

                So far as we can tell, the Shark is operating on instinct, rather than volition. IOW, an existing, coded instruction set, which essentially operates like an expert system. Abstraction requires sentience.

                1. Martin, I don’t by for a second that animal cannot think to some degree. This “instinct” think simply does not compute to anyone who has been around real animals who seem to understand spoken language, can communicate using sign language, and a whole lot more.

                2. I know some pretty smart hounds but i dont think they are capable of creating abstractions per se; lacking symbolic language at the least…

                3. Martin, the issue is not black and white, but grey. The ability to form abstractions, I think, is a matter of degree.

                  Think of Julius Caesar, perhaps the greatest battlefield commander ever. He could take a look at a situation and almost instantly determine what the enemy was going to do and how he could best counteract it. What he did was amazing. I do not know how they estimated precisely, but they estimate his IQ must be in the range of 175.

                  Chess players who can look at a chessboard and almost by instinct know what the enemy is going to do and how to counteract it are doing the same thing as Julius Caesar. Only the best computers can match a good chess player, and this probably by brute force. So one can say that the human is working by abstractions, while the computer is not.

                  But this is an interesting topic for discussion, is it not?

                4. So no one can say that the human is working by abstractions, while the computer is not.

                  Ned – a machine remains a machine. The difference as Mr. Snyder has attempted to impress upon you is sentience. Along with that sentience – for humans – comes other protections of law. And what is NOT present in machines – tied to that same lack of sentience – is precisely why the old “Mental Steps” Doctrine fell apart. It is also where those with a certain philosophical agenda have attempted to re-animate the doctrine into today’s Zombified Mental Steps Doctrine.

                  Much like those who chase Windmills do not want to use the proper patent doctrine of inherency, those sAme people do not want a n accurate historical accounting of the Mental Steps Doctrine.

                5. Abstraction requires sentience.

                  Machines do not have sentience (to Ned’s point, other animals may have some sentience).

                  Machines?

                  No.

                  And that is the cardinal reason why the Zombie of the mental steps doctrine needs to be decapitated.

                  (btw, Mr. Snyder, you might enjoy this “sentience” article by of all entities, Google: link to latino.foxnews.com )

                6. Ned, the nature of mind is endlessly interesting- almost in a circular way ;-)

                  So anon you agree that abstraction requires sentience, and machines lack sentience and likely will for a long time, so you essentially agree that information processed by machines is distinguishable from information processed by human beings- even if it’s notionally the “same” information, such as a simple math equation.

                  It’s possible that some of the most complex animals have degrees of sentience, but for legal, patent purposes, they must be treated as automatons as much as any robot.

                  Symbolic language is the key to abstraction – and understanding how symbols work also clearly points to a gulf between human use of information and all other uses.

                  Finally, I’m still waiting on the identification of new structure in an MPEG patent. I don’t see it. I see a method comprised of information and a result comprised of information, all of it abstract, but somehow OK to patent. How? Why?

                  Easy in my scheme. Interested in how else that baby can be split….

                7. Mr. Snyder – you are becoming imprecise here: the inputs (that are information) ARE the same. The human processing is NOT the same.

                  But your standard (inte11ectually honest) PHOSITA already understands this distinction.

                  That is why I point out every time Malcolm moves the goal posts and tries to take an example with a portion of a claim with some mental step and tries to make it into a claim TOTALLY in the mind.

                  Portions “in the mind” are certainly allowed. There is a world of difference though between just portions and “TOTALLY.”

                  Prof. Crouch coined a term for this awhile back: the Vast Middle Ground.

                8. Symbolic language is the key to abstraction – and understanding how symbols work also clearly points to a gulf between human use of information and all other uses.

                  This is where you go off into the weeds.

                  Think of the very simple patent eligible example of lines scribed on a measuring glass (one of the examples of why we have exceptions to the judicial doctrine of printed matter.

                  Yes, it takes human cognition and processing to come up with the “right” place to put the lines to have a specific “human” AND “real world” meaning, but clearly, the interaction points in a different direction than where you want to go.

                  This is why I expressed to you that you need to take a step back and understand the broader view of utility.

  17. 12

    So, if this isn’t patentable: ” Those patents describe and claim systems and methods for performing real-time performance monitoring of an electric power grid by collecting data from multiple data sources, analyzing the data, and displaying the results”, what else isn’t patentable?

    New MRI system? After all, all it does is display data.
    Any new body imaging system? All they do is display data.
    A new device that processes electrical signals to display them?
    A device that processes network systems and displays info about possible attacks (possibly from Russia ;-) in the network?
    A system that analyses computer code for possible points at which the code can be compromised and displays the code at these points?

    I ha te to break it to people, but these are useful inventions. Just because they “merely” display information doesn’t mean they no longer deserve patent protection.

    (And don’t tell GE that much of what they’re doing is not longer patentable.)

    I really think Congress needs to step in.

    1. 12.1

      There is only one way to cabin the ultra vires judicial muckery:

      Jurisdiction stripping of the non original patent appeal jurisdiction away from the Supreme Court.

      To maintain Marbury (which ONLY requires an Article III review and NOT a Supreme Court review), and since the current Congress appointed Article III court is beyond repair from the Supreme’s brow-beatings (psychological experiment of simians in a cage, being firehosed whenever they reach for the hanging bananas), appoint a NEW patent court within the judicial branch.

      THAT is the only way to stop the power addict of the Supremes from re-legislating from the bench.

    2. 12.2

      PB: these are useful inventions

      Except you haven’t described anything new.

      Serious question: are there any defenders of junky “do it on a computer” claims who can pass the laugh test?

      Because except for the occasional bursts of pure ins@nity, you guys seem hopelessly stuck back in 1993 or thereabouts. Please gr0w up and at least provide some kind of intellectual challenge for the rest of us.

      1. 12.2.1

        Except you haven’t described anything new.

        There you go again, doing that conflating thing….

        1. 12.2.1.1

          There you go again, doing that conflating thing….

          Nobody knows what you’re talking about, “anon.”

          But you’re a very serious person! Keep ranting away and everyone will bow down and start worshipping your awesome insights.

          After all, you’ve had so much success to date.

          1. 12.2.1.1.1

            nobody knows

            …and out pops the short script Vinnie Barbarino meme…

            “Go figure Folks”

          2. 12.2.1.1.2

            MM: Nobody knows what you are talking about….

            Let’s properly rephrase that to the people that Obama appointed to the Fed. Cir. who are completely ignorant of science, technology, and innovation do not know what you are talking about and that is why they were appointed.

            What was the name for the police the USSR used to put in place in satellite countries that wanted to leave the USSR? What the USSR would do is select rural people from a different culture and put them in the cities and tell them all the people that weren’t conforming were ev1l. That is what Obama has done with the Fed. Cir.

            1. 12.2.1.1.2.1

              NW: What was the name for the police the USSR used to put in place in satellite countries that wanted to leave the USSR? What the USSR would do is select rural people from a different culture and put them in the cities and tell them all the people that weren’t conforming were ev1l. That is what Obama has done with the Fed. Cir.

              Priceless and beyond parody.

    3. 12.3

      PB: I really think Congress needs to step in.

      Because Congress loves junky “do it on a computer” claims! And so do the people they represent. That’s why the public outcry in favor of millions more “think about this new correlation!” and “do this on a computer” claims has been so deafening.

      Meanwhile, back on planet Earth …

    4. 12.4

      I agree PatentBob. Taranto and Stoll are Google stooges. I am sure Google picked both of them.

    5. 12.5

      Yet another embarrassing “sky is falling” comment.

      Distinctions? I’ll give you a few, that are fundamental:

      The distinction between posing a problem and solving it (claim the solution not the problem).

      The distinction between a technical feature combination and the technical effect which this combination delivers (describe the effect but claim the combination).

      The distinction between subject matter embodied in a business method and a business method “per se” or “as such”, simpliciter” or as this decision puts it “do not go beyond”.

      There is a good reason why the eligibility provision of the EPC lumps “the presentation of information” in with “programs for computers” and methods of playing games or doing business” as being ineligible when the claim does not go beyond such subject matter. The things that, as such, are ineligible are all things that are, in themselves, not technology, (what in the 18th century was called the useful arts). That’s why they are ineligible.

      But that still leaves all the room in the world to patent every single new, useful and enabled contribution to the useful arts. Any competent drafter can do it standing on their head. It’s what they do.

      I don’t like to worry you, Bob, but you’re getting yourself in a tizzy for no good reason whatsoever.

      1. 12.5.1

        You forgot an even more basic distinction:

        Respect he laws of the sovereign that you are dealing with.

        1. 12.5.1.1

          not technology, (what in the 18th century was called the useful arts)

          You do realize of course that this is a false statement, right?

      2. 12.5.2

        Except Max, the opinion relies on two wrong statements about science. 1) that information is intangible. Represented information is not intangible. Out and out intentional misrepresentation.

        2) Information processing machines are not just like mental processes. Half of all ph.d.’s in cognitive science are about trying to simulate human cognition with computers.

        The opinion is based on those two 1ies. And yes they are 1ies. Taranto and Stoll should be up for impeachment.

        1. 12.5.2.1

          B-b-but that shouldn’t matter because those L I E S align with the desired Ends, and (dontcha know) the Ends justify any means…?

          /off sardonic bemusement

        2. 12.5.2.2

          Except, Night, you draw a distinction now, between “information” and “represented information”. Would that be like the distinction in copyright law, between the idea and its reduction to material form? In physics, is there a basic law of conservation of ideas? In patent law, are ideas patentable?

          Are human brains data processors? Do they have that much in common with digital computers? Is that why people think it worth trying to get a computer to emulate a brain? How can you possibly deny that brains are not “like” man-made data processors, in that they are both data processors?

          Or are you hanging your hat on the qualifier “just”? Is that it? We all know that the human brain architecture is not identical to that of a digital computer. So what?

          You have a long way to go before I can understand how you get to the point of announcing that the judges are deliberately uttering what is not truthful.

          1. 12.5.2.2.1

            e all know that the human brain architecture is not identical to that of a digital computer. So what?

            So the basis for the old mental steps doctrine (or at least how the Zombie of that doctrine) is being attempted to be played out has no viable nexus with the law.

            It’s just a major flaw at the very foundation of the anti-software agenda.

            That’s so what.

      3. 12.5.3

        And Max since you said what you did, then try backing up their nonsense.

        There two outrageous contentions 1) that represented information is intangible, and 2) that information processing machines are the same as the mental steps.

        Go on then Max. You are the embarrassment to support statements like this.

    6. 12.6

      I ha te to break it to people, but these are useful inventions.

      Good thing they’re not utility invalidations then

      if this isn’t patentable: ” Those patents describe and claim systems and methods for performing real-time performance monitoring of an electric power grid by collecting data from multiple data sources, analyzing the data, and displaying the results”, what else isn’t patentable?

      You have to put it in context – both the machines for real time monitoring and the analysis pre-existed. The “invention” was the idea of using computer networking to get data to a computer “in real time” for performing a conventional analysis. He could have invented the sensor, or the networking, or a new analysis model and it would have be eligible, but he didn’t do that, he just came up with the idea of using computer networking for power grid data the same way computer networking is used for all other data.

        1. 12.6.1.1

          Random, That’s not an eligibility argument.

          Yes, it certainly is.

          But go ahead and pretend that Alice never happened.

          1. 12.6.1.1.1

            Random’s post does not reflect Alice.

            (and that’s even spotting you the broken score board case)

  18. 11

    So… Electric Power Group’s panel was Taranto, Bryson, and Stoll… and McRo’s panel was Taranto, Renya, and Stoll…

    Ouch.

      1. 11.1.1

        No bearing?

        Your definitions are detached from reality.

        This opinion will have tremendous effect on a lot of patent applications.

        Energy Power Group will wipe out all the ‘progress’ of DDR, Enfish, and Bascom.

        1. 11.1.1.1

          Ben,

          I do believe that he was referencing the underlying physical reality and NOT the “reality” of broken scoreboards.

        2. 11.1.1.2

          Except Ben, represented information is not intangible and information processing machines are just like mental steps. Those are two 1ies that Taranto is pushing and stooge Stoll is backing.

          Those two 1ies are outrageous and at the level of judge telling us that we are to go forward and accept the fact that the earth is at the center of the universe.

          It is outrageous.

  19. 10

    Re-posted for formatting. So, Taranto is the one that said that a computer that is merely simulating a mental process is per se ineligible (as being obvious). And yet most Ph.D.s in cognitive science are based on trying to simulate mental processes. =><=

    In this opinion, we have this logic: "In a similar vein, we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category." A machine's processes are not "essentially mental processes."

    We should all note that Taranto is being paid to input information, process the information, and output text.

    And, Taranto is again bending the truth with his characterization of information as intangible when this is not information in general, but represented information that is definite.

    Taranto—the best judge Google bucks can buy.

    1. 10.1

      There is no principled way to distinguish Taranto’s nonsense from invalidating all circuit patents too.

      Let’s all just remember too that information processing is the one thing that we value most about us. The only difference between an uneducated alcoholic and Taranto is Taranto’s ability to process information better for the purpose at hand. And, yet, Taranto believes that processing information should be ineligible from patentability. And has fabricated reasons for this. Weird.

      1. 10.1.1

        Everyone should also take a moment to contemplate that nothing is really won by mischaracterizing patent law and science. Yes, you can wipe out patent law, but at what cost? It is this sort of behavior from Taranto that has brought us Trump. It is only going to get worse because what Taranto is showing us is that only power matters. That there is no law. No reason. Whoever in charge is going to do whatever they want to get what they want.

        Taranto is contributing heavily to the destruction of our society.

      2. 10.1.2

        no principled way to distinguish Taranto’s nonsense from invalidating all circuit patents too.

        Absolutely correct – and immediately flows from the legal concept within patent law of equivalence.

        Some (still) refuse to recognize the plain truth of the wares.

        To some, three resistors is just three resistors, and it just does not matter to their philosophical belief system that those selfsame resistors in parallel are different than those resistors in series.

        1. 10.1.2.1

          The Bobbsy Twins: “no principled way to distinguish Taranto’s nonsense from invalidating all circuit patents too.”

          Absolutely correct

          Funniest comment ever from the two tr0lliest bl0gtr0lls in the history of the patent bl0gosphere.

          Keep the laughs coming, guys.

          1. 10.1.2.1.1

            No one is more “tr0lliest bl0gtr0lls in the history of the patent bl0gosphere” than you Malcolm.

            Happy Decade of Decadence (as you celebrate with your number one meme of AccuseOthersOfThatWhichMalcolmDoes).

            Yay ecosystem!

            1. 10.1.2.1.1.1

              “anon” the plain truth of the wares.

              It’s a shame the inventors of software didn’t call it “softmanufacture” or “softapparatus”. Your awesome argument would be so much more awesome and compelling if that were the case.

              1. 10.1.2.1.1.1.1

                What is your point? Are you seriously doubting the linguistic evolution of the term “software”….?

                What s putz.

                1. Are you seriously doubting the linguistic evolution of the term “software”….?

                  LOLOLOLOLOLOL

                  Tell everyone about the “linguistic evolution of the term ‘software'”, “anon.” You’re a very serious person! If only we all knew more about that “linguistic evolution” maybe we’d have some idea about the super serious “argument” you’re making.

                  But probably not. Still, that’s never stopped you before. So please, please share your deep knowledge with us.

                2. People use the internet all the time to do their own legwork Malcolm.

                  Maybe instead of (yet more) gratuitous personal sniping, you actually checked things out on your own…?

                  Here’s a start:

                  link to google.com

                  One snippet from the links:

                  An intense man who liked to argue and was fond of helping other researchers, Mr. Tukey was also an amateur linguist who made significant contributions to the language of modern times. In a 1958 article in American Mathematical Monthly, he became the first person to define the programs on which electronic calculators ran, said Fred R. Shapiro, a librarian at Yale Law School who is editing a book on the origin of terms. Three decades before the founding of Microsoft, Mr. Tukey saw that ”software,” as he called it, was gaining prominence. ”Today,” he wrote at the time, it is ”at least as important” as the ” ‘hardware’ of tubes, transistors, wires, tapes and the like.”

    2. 10.2

      Everyone should also try to understand that the most important law in physics is conservation of information. There is nothing indefinite about information. Transforming information follows the same laws of physics as transforming matter.

        1. 10.2.1.1

          But, NSII, Night never even connects the dots from this law (which specifies the state of the universe) to how it relates to data (information) transformation, or whatever, and why that takes energy, or why that is even relevant to whether idea, or whatever, transformation is eligible subject matter. But of course, anyone who does not understand this linkage is a Neanderthal or worse, a Supreme Court justice and further, is unethical. Just ask Night.

          1. 10.2.1.1.1

            Ned, I don’t believe that you don’t understand this. I think you are trolling.

            Obviously, the conservation of information is important as it means that information has a physical meaning. And that it takes energy to transform the information, which in our case comes from electrical power plants.

            Etc. I know you understand Ned.

            1. 10.2.1.1.1.1

              But, Night, what do you mean by “transform the information.” Information are facts. They simply exist.

              1. 10.2.1.1.1.1.1

                Ned I think you are intentionally playing dxm.

                If you start with represented information X, and the information processing machine, derives information Y, then what physics tells us is that this is a physical process.

                It will take time, energy, and space. And, there are theories about such things as a minimum amount of energy necessary to sort a list of numbers.

                Physical process. Not angels on pins like Stevens tells us. Not intangible as Taranto would tell us. Taking information in, and controlling your body to drive is a physical process. Part of that physical process is processing information.

                But you know all this don’t you? Tro11.

        2. 10.2.1.2

          Yeah. Non Sequitur II. Look it up on the Internet. Many very high level physicists say that.

          1. 10.2.1.2.1

            Night Writer,

            May I suggest that your argument is like pearls before swine…?

            The high level that you take for granted is clearly not grasped by the likes of Ned and the other anti’s.

            1. 10.2.1.2.1.1

              anon, may I suggest that Night has no understanding of what he is talking and is rather babbling absurdities.

              1. 10.2.1.2.1.1.1

                Since I am aware of the “higher physics” concepts that he is referencing, Ned, the opposite is true.

                You are the one without understanding here. He certainly is NOT “babbling absurdities,” but is rather throwing pearls before swine.

                This forum just is not the right forum for his argument because – and you are very much part of the problem here – mischaracterizations and “into the weeds” are just too common of the obfuscatory tactics employed by those chasing Windmills.

      1. 10.2.2

        Night consider the Universe in State 1. It moves to State 2. The information of State 1 is conserved in State 2.

        Does the universe require energy to move from State 1 to State 2?

        And if your answer is yes, where it the source of this energy?

  20. 9

    Can we talk for a second about obviousness and what people like 6 have to say about it. Here’s Claim 12, comprising two pages of the slip op:

    12. A method of detecting events on an interconnected
    electric power grid in real time over a
    wide area and automatically analyzing the events
    on the interconnected electric power grid, the
    method comprising:
    receiving a plurality of data streams, each of the
    data streams comprising sub-second, time
    stamped
    synchronized phasor measurements
    wherein the measurements in each stream are
    collected in real time at geographically distinct
    points
    over the wide area of the interconnected
    electric power grid, the wide area comprising
    at least two elements from among control areas,
    transmission companies, utilities, regional
    reliability coordinators, and reliability jurisdictions;

    receiving data from other power system data
    sources, the other power system data sources
    comprising at least one of transmission maps,
    power plant locations, EMS/SCADA systems;

    receiving data from a plurality of non-grid data
    sources;
    detecting and analyzing events in real-time from
    the plurality of data streams from the wide area
    based on at least one of limits, sensitivities
    and rates of change
    for one or more measurements
    from the data streams and dynamic
    stability metrics derived from analysis of the
    measurements from the data streams including
    at least one of frequency instability, voltages,
    power flows, phase angles, damping, and
    oscillation modes,
    derived from the phasor
    measurements and the other power system data
    sources in which the metrics are indicative
    of
    events, grid stress, and/or grid instability,
    over the wide area;
    displaying the event analysis results and diagnoses
    of events and associated ones of the metrics
    from different categories of data and the
    derived metrics in visuals, tables, charts, or
    combinations thereof, the data comprising at
    least one of monitoring data, tracking data,
    historical data, prediction data, and summary
    data;

    displaying concurrent visualization of measurements
    from the data streams and the dynamic
    stability metrics directed to the wide area of
    the interconnected electric power grid;
    accumulating and updating the measurements
    from the data streams and the dynamic stability
    metrics, grid data, and non-grid data in real
    time as to wide area and local area portions

    of the interconnected electric power grid; and
    deriving a composite indicator of reliability that
    is an indicator of power grid vulnerability
    and
    is derived from a combination of one or more
    real time measurements or computations of
    measurements from the data streams and the
    dynamic stability metrics covering the wide
    area as well as non-power grid data received
    from the non-grid data source.

    This claim is a masterstroke in putting in useless junk which non-limits the claim (it limits power system data sources to power plants, transmission maps and EMS systems? SO LIMITING!) while keeping the actual step actions as vague and generic. The prosecution attorney should be given a medal and put out to stud. I count at least half a dozen things which may require their own references wholly independent from a reference which could theoretically anticipate the entire analysis method (which itself would need to be joined with a computer networking reference).

    There’s no doubt in my mind that this claim was allowed because there are those in the office that ignore the MPEP and, like 6, follow a rule that the number of references or modifications necessary to achieve a result is a per se indicator of non-obviousness. What did the judge say? “Have you ever seen four references for something to be obvious? I haven’t”?

    This application is not suggesting that it is the first to analyze data to determine grid reliability. Nor does it claim to invent computer networking such that data could be transferred in “real time.” Nor does it suggest that display of information, once analyzed, is inventive, as it isn’t. The claim does nothing more than marry computer networking with traditional analytics to achieve the same result one would expect to achieve if a human analyst had the conventional processing speed of a processor and the information reception speed of a conventional ethernet cable.

    Many have leveled the charge that 101 could be ignored because 103 handles the slack. The office would never find a claim this long obvious. That’s part of the problem with the office. It would be a forgivable sin but for the fact that some on the federal circuit might uphold the claim as well. The specification teaches nothing, all it does is arrange the analytic tools known to the art with computer networking tools to compile information and a display for displaying the results. That’s not invention, that’s aggregation.

    The claim is obvious, but that office would never call it so and I suspect the federal circuit wouldn’t either. 101 and 103 are not the same analysis, and you can’t toss 101 because 103 does not always save the day. Further, you have to apply 103 correctly – if a hypothetical person of skill knew about something and had a means and a motive to apply it, the application is obvious, and it’s obvious no matter how many other times you’ve applied a modification.

    1. 9.1

      RG: This application is not suggesting that it is the first to analyze data to determine grid reliability.

      But it’s so much faster! Why do you h@te efficiency? What did computers ever do to you?

      Seriously, I’m shocked that there is no mention of the display being “customized” for the user. That’s, like, the really coolest stuff. Then you can put those user preferences in a table that’s updated “dynamically” on a remote server. I guarantee Judge Moore doesn’t remember that from her undergrad days. Therefore, totally eligible.

    2. 9.2

      Masterful use of the old “at least one of” claiming technique to pass the “span test” by several giant hands yet make everything other than the broadest or vaguest one of the “one of’s” completely non-limiting.

      But what is in the spec enabling the claimed “sub-second, time stamped synchronized phasor measurements”?

    3. 9.3

      What an interesting post from RG, that:

      “….you can’t toss 101 because 103 does not always save the day. ”

      Curious then, that the EPO has more or less “tossed” its 101 eligibility provision, precisely because its 103 filter works so economically and incisively. Cases routinely get over all the hurdles except the last, the 103 test (Art 56, EPC) and then they go down, in very short order. But that’s exactly what you’d expect of a correctly functioning patent system, isn’t it, in a system populated by clever and assiduous drafters, making the best of what their clients bring them for patenting. You can draft around all the other hurdles, but you can’t, as a drafter, turn lead to gold, or obvious subject matter into inventive.

      Now that the USA has switched to a First to File law, and SCOTUS has taught how to do eligibility, there is nothing standing any longer in the way of adoption in the USA of the EPO approach to obviousness.

      But who is capable of explaining it to SCOTUS, when even the English patent judges seem unable to grasp it? Max Planck was right, I think, that no established expert ever switches to a new theory. The new theory takes over when younger colleagues, steeped in the new theory, rise to the positions of power and influence.

      1. 9.3.1

        Planck was right, I think, that no established expert ever switches to a new theory.

        This applies not only to “experts,” but also to non-experts who blandly just repeat the same old script ad infinitum as nauseum….

        ;-)

      2. 9.3.2

        Curious then, that the EPO has more or less “tossed” its 101 eligibility provision, precisely because its 103 filter works

        As everyone knows, the EPO just calls “eligibility” something else.

        And you’ve been told this before, MD. Hundreds of times maybe?

        Nice try, though! Feel free to flush more of your credibility down the t0ilet at any time.

        1. 9.3.2.1

          The EPO draws a distinction between its 101 provision, Art 52, and its novelty (Art 54) and obviousness (Art 56) provisions. Patentability is relative to the prior art, eligibility not. If you claim a business method per se or a computer program per se, the EPO will refuse it as ineligible, without getting into any discusion of whether any or all of the features in the claim are old. You claim “A digital computer” at the EPO. It’s eligible because it has “technical character” and does not fall within the ambit of any of the things recited by Art 52 EPC as ineligible.

          No idea what you mean, MM, by “hundreds of times” or “credibility”. It’s the other way round. I’ve lost count of the number of times I’ve repeated what I am writing now.

          1. 9.3.2.1.1

            You claim “A digital computer” at the EPO. It’s eligible because it has “technical character”

            That’s nice. What if the novel “problem solving” part of the claim doesn’t have “technical character”? What happens then, MD?

            As if you didn’t know what I was talking about.

            1. 9.3.2.1.1.1

              MM We both know that the EPO uses 103 as its active filter. We both know that the EPO eligibility filter is absolute and time-invariable, rather than relative to the prior art and therefore varying with time.

              To answer your question though, non-obviousness in areas outwith the useful arts is of no help to you at the EPO when trying to get over its (objective technical problem) “technical effect” 103 hurdle. You already know this of course, but I write it here (yet again) because both of us are using this dialogue (that is ostensibly between just us two) to reach other readers of this thread. Fair enough, I say.

              1. 9.3.2.1.1.1.1

                We both know that the EPO eligibility filter is absolute and time-invariable, rather than relative to the prior art and therefore varying with time.

                That is how the US law is supposed to work as well, MaxDrei.

              2. 9.3.2.1.1.1.2

                because both of us are using this dialogue (that is ostensibly between just us two) to reach other readers of this thread

                and

                outwith the useful arts

                You are not treating the sovereign difference between Useful Arts and Technical Arts correctly again.

                Calling them the same (even repeatedly) will not make them the same.

                You already know this of course, but I write it here (yet again)…Fair enough, I say.

              3. 9.3.2.1.1.1.3

                MD To answer your question though, non-obviousness in areas outwith the useful arts is of no help to you at the EPO when trying to get over its (objective technical problem) “technical effect” 103 hurdle. You already know this of course

                And so did you. Improvements that fall “outside the “useful arts” or are “not technical” are just different terms for what we call in the US “ineligible subject matter”.

                the EPO eligibility filter is absolute and time-invariable

                Again, that’s just misleading because what constitutes a “technical improvement” absolutely depends on the prior art. Assuming the current laws were in place and assuming digital computers hadn’t yet been described, a digital computer comprising a stored copy of Moby Duck (a new non-obvious story) could, theoretically, have been patented in the EPO. But if the digital computer had already been described then you can’t patent it. That’s a perfect example of time/art dependency on “eligibility” of a new claim. The recited claim doesn’t fail becuase it’s not new, nor does it fail because it’s “obvious” or “it doesn’t solve a problem.”. It fails because the improvement is ineligible subject matter. The same logic applies in the US (albeit using different words).

                Abstractions are abstractions. Information is information. Facts are facts. Natural laws are natural laws. They’re no more or less “time-dependent” than the “non useful arts” and “non technology” is in the EPO. If anything, the US is becoming more consistent in its approach to subject matter eligibility while the EPO continues to play word games.

                1. 101 and subject matter eligibility is NOT drawn to an element by element test like that Malcolm.

                  Elsewise, you could not have ANY non-eligible element in a claim whatsoever as that would taint the entire claim.

                  (do you want to double down and try for the canard of the “Point of Novelty” for 101 purposes…?)

                  It appears that you want to play with the canard of the example from the non-useful arts – so maybe you are into your “canard” play pen….

                2. MM, you write that:

                  “The recited claim doesn’t fail becuase it’s not new, nor does it fail because it’s “obvious” or “it doesn’t solve a problem.”. It fails because the improvement is ineligible subject matter.”

                  and I say in reply that it isn’t quite like that, at the EPO. One has to be careful about dismissing patentability just because the feature that confers novelty appears not to be technical.

                  You use as example a digital computer. I prefer my old example of the “Squash racquets ball, characterized in that it is blue.”

                  Is the “improvement” eligible? I assume most people would think it isn’t.

                  But is the claimed ball a non-obvious solution to a real objective technical problem? Yes it is. How to raise the standard of play in squash tournaments. Against a white background, the human brain picks up and assesses the flight of a blue projectile faster than it can a black projectile: fact.

                  When claimed subject matter has technical character, is new, useful and is a non-obvious solution to an objective technical problem, and is enabled, at the EPO it’s patentable.

                  In “2nd medical use” technology, there are similar issues when the “improvement” is text on the packaging of the medication.

                  For the EPO, what counts is that those who promote the progress in the useful arts ought to be in line for a patent with a scope commensurate with their contribution to the art. We all of us have an interest in promoting progress in the useful arts.

                  But thanks for the time you are taking. I see now that the EPO, in its “103” jurisprudence, is indeed relying upon a time-independent filter, namely, whether the problem allegedly solved by the claimed subject matter is or is not “technical”. In that sense, the crux issue, which the USA faces squarely at the eligibility stage, the EPO defers until it addresses obviousness. Immersed as I am in EPO jurisprudence, it seems to me no more than commonsense, that the only sort of non-obviousness that ought to count towards patentability is non-obviousness within the useful arts. I regret that you can’t agree.

                3. Once again the mere repetition of “useful arts” for the EP – as if that repetition makes useful arts the same as technical arts – is at best legal error and more likely shameless dissembling propaganda.

                  Respect the sovereign choices.

      1. 9.4.1

        That’s because they don’t have any substantive replies. That’s been their major problem since day 1.

        It’s one thing to ask for a handout and get it because “entitled” and “expectations.” It’s another thing to justify the millionth handout with reasons that make sense.

        The latter tends to be a huge stumbling block for this eternally whining crowd.

    4. 9.5

      “This claim is a masterstroke in putting in useless junk which non-limits the claim ”

      Ok? So?

      “I count at least half a dozen things which may require their own references wholly independent from a reference which could theoretically anticipate the entire analysis method”

      Ok? So?

      “There’s no doubt in my mind that this claim was allowed because there are those in the office that ignore the MPEP and, like 6, follow a rule that the number of references or modifications necessary to achieve a result is a per se indicator of non-obviousness.”

      Or it could just be non-obvious based upon the references o record. What’s the matter with that?

      “This application is not suggesting that it is the first to analyze data to determine grid reliability. Nor does it claim to invent computer networking such that data could be transferred in “real time.” Nor does it suggest that display of information, once analyzed, is inventive, as it isn’t”

      Ok? So?

      “The office would never find a claim this long obvious.”

      There’s your answer. And good for them. Although I beg to differ slightly in so far as if they had a perfect reference that was but one or two limitations away they surely would see if they could find a 2ndary and tertiary. And if they did then they would reject it. I have rejected more complicated “long” claims than this (that maybe had slightly less bloating verbiage). And properly so.

      “That’s not invention, that’s aggregation.”

      Take that up with legal scholars and the director. According to ye olde Judge Rich “invention” was just the act of creation of the invention. If that be the case, then it looks like this is “invention” even if it is “aggregation”.

      “The claim is obvious,”

      Well, find some refs and file for a post grant review.

      “but that office would never call it so and I suspect the federal circuit wouldn’t either.”

      Then maybe it isn’t obvious to one of ordinary skill in the art based solely upon the record before it. You know, that whole part about the ol lawl being an issue.

      ” 101 and 103 are not the same analysis, and you can’t toss 101 because 103 does not always save the day.”

      True.

      ” if a hypothetical person of skill knew about something and had a means and a motive to apply it, the application is obvious, and it’s obvious no matter how many other times you’ve applied a modification.”

      Mmm, I have yet to see your evidenciaries establishing what this hypothetical man (in which particular art again?) knew about. Or your in depth 103 analysis.

    5. 9.6

      Random I should add for you bro that if you’re simply upset about the small scope of things that will get blocked legally by 103 as written and interpreted (and developed throughout the centuries) then I’m in agreement with you brosef. I too am somewhat upset, and would have been beside myself when I first started at the office if you told me such an entitlement program existed in my gubmit. Ever since I found out about the small scope of things that get legit blocked by 103 I was indeed rather beside myself. But brosef, that is on the congress and/or the courts. It isn’t up to us in the office to fix the entire system for them by executive fiat. If they want to exclude more things from patentability (for instance things that would be generically ‘obvious’ to just any old person in view of everything it could be proved they ‘knew about’ across all arts) then they can. It’s a very simple legislative fix, simply strike like 1/2 of the statute 35 U.S.C 103 and fix the language. It could read:

      “A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the claimed invention as a whole would have been obvious to someone before the effective filing date of the claimed invention” Period, the end of the statute.

      Or something like that. We could employ actual drafting experts to help tidy up the as amended statute.

      Indeed, I have been searching for the exact thing that I would propose as a replacement for 103 for many years ever since patent hawk challenged me to do so. Somewhat surprisingly to me the more I try to think of the perfect replacement the more I like the current setup which does not exclude the lesser man amongst us from our entitlement program and allows experts to get patents practically at their whim, so long as they’ll put in effort and disclose. Especially in my own art. Though I might still advocate for the setting up of a different system (other than patents) for software which has a much higher “103” threshold.

      1. 9.6.1

        Lots of chuckles here – and let me repeat a comment that I posted on a previous exchange between Random and 6: we have found a way to make 6 look good.

      2. 9.6.2

        6, I really would better like legal test to be objective, such as the test specified by Hotchkiss v. Greenwood and its progeny because obviousness, like beauty, is in the eye of the beholder.

        If clay was known to work as a knob, and there was no new functional relationship of the clay to the knob mechanism, the claim to the clay doorknob is the work of the ordinary mechanic. Everything provable with evidence.

        1. 9.6.2.1

          Idk brosef I think the obviousness test is fairly objective as it is so long as everyone is on the same page with their legal understanding. If they aren’t then you start to run into massive problems. Which is the real issue, the statute, as written, doesn’t incorporate the pages upon books upon treatises of legal tom-writing that never made it into the statute but which is supposedly legally binding. If the statute itself spelled out everything that had to go into an obviousness test then there would be much less confusion and much more objectivity.

      3. 9.6.3

        To quote Ben (in reply to 6’s reply):

        Nothing in the way of substantive replies from the opposition…

        ;-)

  21. 8

    The claims, defining a desirable information-based result and not limited to inventive means of achieving the result, fail under § 101.

    I felt a great disturbance in the Force, as if millions of claims on RandomGuy’s docket suddenly cried out in terror and were suddenly silenced.

  22. 7

    In case there’s any confusion, the “strategy” of distinguishing one “do it on a computer” method from another by virtue of the information content being received/transmitted/stored just got another nail put in its coffin.

    That makes about 500 titanium nails at this point.

    But wait! You can still get tons of mileaage by throwing in some limitation about a “remote server.” Especially if that remote server is wirelessly connected to a 3-D printer configured to print jewelry in personalized fluorescent colors which is, like, pretty much unheard of until just now.

    1. 7.1

      Information processing takes time, space, and energy. The conservation of information is the most important law in physics.

      Taranto has exhibited such an ignorance of science and technology that we should request that he be removed to a circuit more appropriate for his skill set.

      1. 7.1.1

        Night, you keep saying this but do not collect the dots.

        Just why does the conservation of information have anything at all to do with patentable subject matter. The point of the rule is that the state of the universe from a prior time is conserved so that one might equally go back in time to a prior state as from that prior time to the present.

        But just how this connects to whether 1+1=2 should be the stuff of patents is lost on me, and I suspect, everyone else. Patents are for the creations of man. Patents do not protect facts. That 1+1=2 is a fact.

        Furthermore the information state of the universe is a fact. It is not the creation of man.

        1. 7.1.1.1

          Ned, what you wrote is nonsensical. The conservation of information is important for patents because it illustrates that information processing machines are performing a physical process that takes time, energy, and space. That information processing is as much a physical process as making an alloy.

          1. 7.1.1.1.1

            But Night, the information state of the Universe has nothing to do with a physical process. It has to do with the state of the Universe for one moment to another so that we know what a previous state was. It simply is information.

            1. 7.1.1.1.1.1

              Ned, and does information processing change the state of the universe. Yes. And what is information processing doing? It is transforming information just like a making an alloy.

              1. 7.1.1.1.1.1.1

                Night, what does the physics rule about conservation of information have to do with information processing except they use a common word?

                1. Only reality.

                  Which is something that you appear ready to dispense with any time your Windmill chase harkens.

                2. Again, the state of the universe defines its information. The theory is that this information is conserved so that it does not change as the physical state of the universe changes. For example, a small universe is hot, a large cool. So, there is an aggregate relationship between the size, mass and energy of the universe that does not change.

                  There is no “information” processing when talking about the state of the universe.

                3. Again, Ned, you are muddling different concepts (or at least trying to disassociate what Night Writer is talking about).

                4. anon, I am doing no such thing. It is Night that argues that patent eligibility is somehow related to law of nature. He is babbling.

                5. He is not babbling.

                  He IS trying to use concepts that you plainly just do not grasp.

                  It is as if he was trying to explain a three dimensional world to s two-dimensional being.

                  You remain trapped in the circle, unable to step above that circle.

            2. 7.1.1.1.1.2

              You clearly are not grasping the concept Ned.

              Your “version” dissociates the “what” about the actual from the actual and attempts to treat that “what about” as some posterior separate thing that exists outside of the actual (and only in our heads).

              That just is NOT what Night Writer is talking about.

  23. 6

    So, Taranto is the one that said that a computer that is merely simulating a mental process is per se ineligible (as being obvious). And yet most Ph.D.s in cognitive science are based on trying to simulate mental processes. =><=

    In this opinion, we have this logic: "In a similar vein, we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category." A machine's processes are not "essentially mental processes."

    We should all note that Taranto is being paid to input information, process the information, and output text.

    And, Taranto is again bending the truth with his characterization of information as intangible when this is not information in general, but represented information that is definite.

    Taranto—the best judge Google bucks can buy.

    1. 6.1

      Very disappointed that Stoll is backing this nonsense. But then from personal knowledge of her, I’d say she is not very bright and is slippery at best. Terrible choice for the Fed. Cir. Except we all know that Google picked her with Obama’s criteria that she had to be a practicing patent attorney.

    2. 6.2

      Does anyone believe that information that is represented in a computer memory is intangible? Taranto is smart and intentionally left the part out of being represented.

      Does anyone believe that methods on a computer are essentially mental processes? That is conflation–obviously. And is equivalent to saying that a bulldozer is really just a hand of a human pushing dirt.

      1. 6.2.1

        Night, you distinguish between the circuit and the information when the claim is to the information. Why do you always do this?

        1. 6.2.1.1

          Because the circuit is there to represent the information in this particularly example where Taranto’s game was to conflate information in general with represented information that is being represented and processed.

          Obviously, circuits may perform methods and circuits are patent eligible. And, let’s face it. You are all are baboons anyway.

          1. 6.2.1.1.1

            Night, but the claim is not to any circuit.

            I claim hitting a baseball with a bat. Is the claim to a bat, a baseball or to something else?

            1. 6.2.1.1.1.1

              Ned, again nonsensical. Is the claim enabled? Or would you rather not involved patent law.

              1. 6.2.1.1.1.1.1

                Night, honestly, the way you babble complete nonsense is embarrassing, not only to you, but to this blog.

                Do you know that if you claim something that you have to describe it in the specification? Enablement is simply not the issue.

                1. He irony Ned: what you accuse Night Writer of – of being an embarrassment – applies to you (and in spades).

        2. 6.2.1.2

          when the claim is to the information

          Except not – that’s only the result of your twisting and parsing and NOT taking the claim as a whole, as put forth by the applicant under the direction from Congress as to exactly whom sets the “invention” (hint: Congress did NOT give that authority to the court).

    3. 6.3

      I have repeatedly asked the good professor or one of his academic friends to lay out the patent doctrine of “mental steps.”

      Such – it appears – would have been invaluable for the judges of this panel of the CAFC.

      …as it is, more broken score boards…

      1. 6.3.1

        Taranto is our worse nightmare. He is smart. He is completely ignorant of science as he has admitted in person. And he is unethical. He obviously is a judicial activist that will bend the truth to anything that gets the results he wants.

        Thanks Obama.

        1. 6.3.1.1

          Night, well, no one would accuse you of being any of the things of which you accuse Taranto.

      2. 6.3.2

        “anon” I have repeatedly asked the good professor or one of his academic friends to lay out the patent doctrine of “mental steps.”

        Because you can’t do it yourself? Or because you’re too lazy to do it yourself?

        It seems a bit odd for you, of all people, to beg at the doorstep of the “ivory tower”.

        1. 6.3.2.1

          You assume incorrectly Malcolm.

          Sure I could provide the explication – and do so well.

          But you “and your cohorts” will pay attention to what the “academics” say. Witness how you run away from other very easy to understand explications of mine (e.g., the simple set theory explication of the exceptions to the judicial doctrine of printed matter).

          It’s quite simple – and far less nefarious or incompetent – to have a source that you are likely to trust provide the historical basis so ALL can see how that old doctrine has been zombified and is currently being used (hint: it calls into play my fav coined word of anthropomorphication).

          Try less personal sniping and try more critical thinking.

    4. 6.4

      So you basically respect a distinction between a human being processing some information or a machine processing some information?

      “we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category.”

      A machine’s processes are not “essentially mental processes.”

        1. 6.4.1.1

          put a shirt on

          You might try reading what Mr. Snyder said here Night Writer – it is actually (in principle) in agreement with your views.

          He is saying that machines really do NOT think, and thus (if I may take that one step further), the attempted legal doctrine of mental steps does not apply.

          Of course, anyone looking at the plain and direct words of Congress would realize that a stay roe category (machine) cannot be “wiped out” just because the machine serves as a proxy for something else.

          Machines remain machines.

          No matter what the officious muckrakers want to “gist” or “direct to” the plain words of the claim into.

          1. 6.4.1.1.1

            Quite right. Mr. Snyder makes a good point. It would be better if he put a shirt on.

            Now, Mr. Snyder please address the second wave of nonsense from Taranto about information being intangible. This is also from Taranto trying to make his thinking equivalent to a computer processing information.

            Taranto should be removed from the Fed. Cir. His ignorance of science is unbelievable. Thanks Obama. I hope Obama you got a big pay day for putting this destroyer of reason on the Fed. Cir.

            1. 6.4.1.1.1.1

              I write “I owe the Easter Bunny 2 + 3 dragon eggs” on a piece of paper. Now, magically, the Easter Bunny, debts, numbers, math, and dragons are no longer abstract, because they are “represented” by physical changes (pencil marks) to a real-world object (paper).

              Simply incredible.

              1. 6.4.1.1.1.1.1

                You have a highly underdeveloped mind Dobu. My suggestion to you is go back to college. It would be easier to explain why what you wrote is wrong to a six year old than you.

              2. 6.4.1.1.1.1.2

                Count Dobu – enough with the strawman, as you know (or should know) that mere writing is just not the same.

                Set C printed matter.
                Set B printed matter.

                There is a clear and unmistakable difference. Anyone who is anyone already knows and understands this. Heck, even Malcolm has volunteered an admission as to knowing and understanding this controlling law.

                1. My comment was addressing Night’s complaint regarding information being held abstract, and was therefore on-topic and not a strawman. Nice try moving the goalposts.

                  And, since you bring it up, information (even information in the category of “software”) is not in “Set C”.

                2. All information is intangible- thats why its called information. Some information should be patent-eligible, despite its intangibility, because it’s new, useful, fully-described, and generated by a process, which is one of the four categories which the patent act allows.

                  The judicial exception for abstraction was placed there to limit the patenting of ideas AND information, but the rise of the information age threw a monkey in the wrench.

                  So we have this problem distinguishing between kinds of information to allow patents on.

                  As to anon’s set theory, it makes less sense than the  basic semiotic theory presented by Collins- seperating symbols into the components of the vehicle, the referent, and the interpretent.

                  The vehicle, and sometimes the referent, should be possible to patent. The interpretent should never be eligible, because it exists entirely in the mind of a individual person.

                3. it makes less sense

                  LOL – quite the opposite, Mr. Snyder. It makes eminent sense and is easily understandable.

                  Collins’ muckraking and psy-babble is an embarrassment.

                4. Your “written on paper” diverges from what Night Writer is discussing, so no, quite frankly, you are simply – and completely – wrong.

                  Try something else.

                5. MS: Some information should be patent-eligible, despite its intangibility, because it’s new, useful, fully-described, and generated by a process

                  Wow.

                  I mean … wow.

                  First of all, there’s an infinite amount of information that fits into that category, not merely “some”.

                  Second of all, it’s a d.o.a. position to take. If you end up there, nobody is going to take you seriously.

                  New and useful information, created by a process, should be patentable?! Good luck with that. You’re going to need a lot of luck because, as a matter of policy, you’re not going to find any support. But maybe Congress will all get really high on that one day when they vote on your bill. That would be lucky indeed! Also, try praying really really deeply and sincerely. That sometimes helps in these situations, or so I’m told.

  24. 5

    [repost to correct formatting]

    This is an excellent result and a concise summary of where we’re at. It’s also clear that the closer these judges get to facing the abyss of logic claiming, the more frightening it must be to talk about what they see:

    The claims in this case do not even require a new source or type of information, or new techniques for analyzing it. As a result, they do not require an arguably inventive set of components or methods, such as measurement devices or techniques, that would generate new data.

    This is an important and accurate point to be made. This failing (a lack of inventive sensor or measurement devices/components or new physically transformative methods) applies to a vast number of “do it on a computer” claims. New measurement/sensor devices, of course — when described in objective structural terms distinguishing from the prior art — remain eligible and always will be. That’s where the system should be focused, not on junky methods of using existing technology and a computer to “measure this” and “analyze that”.

    CAFC: They [claims at issue] do not invoke any assertedly inventive programming.

    Instructions for a computer (aka software) aren’t eligible for patenting, so it’s more than a bit odd to suggest that a method of typing out logic instructions for a computer (aka “programming”) would be eligible for patenting. This is where the CAFC is going to continue to shoot the patent system in the foot until the facts and internal contradictions force it to surrender.

    The “common sense” line that the CAFC has drawn for itself (“abstract logic that improves computing generally is eligible, but abstract logic that improves processing of particular information content isn’t eligible”) is going to work right up until the point that the farcical nature of that line-drawing becomes crystal clear. And we’re going to approach that point fairly quickly, I think.

    Even here, the distinctions the CAFC attempts to draw between these junky claims and one of their standard bearers for “do it on a computer” eligibility (i.e., DDR) isn’t very convincing. Consider:

    The claims at issue here do not require an arguably inventive device or technique for displaying information, unlike the claims at issue in DDR Holdings… (at JMOL stage finding inventive concept in modification of conventional mechanics behind website display to produce dual-source integrated hybrid display).

    There were novel mechanics behind the website display that were recited in DDR Holdings’ claims? Really? When did those show up? Because the term “mechanics” doesn’t even appear in the DDR Holdings decision. Nice try, guys.

    1. 5.3

      MM, assuming arguendo that a novel data processing technique was claimed (the information and sources remaining old), is it you position that the Feds will still hold the claims ineligible because all they require is that the information be displayed?

      Compare to Flook where setting the alarm limit was not enough, but setting off an alarm might have been enough.

      1. 5.3.1

        Ned: assuming arguendo that a novel data processing technique was claimed (the information and sources remaining old), is it you position that the Feds will still hold the claims ineligible because all they require is that the information be displayed?

        I think that’s where the best arguments necessarily end up so, yes, that is my position.

        In advance of the “arguments” that are forthcoming, I’ll note that I don’t have anything against “data processing”. I just don’t think anything remotely like the patent system we have is capable of fairly (e.g., consistently, objectively) examining the merits of “new” “process this kind of data this way” claims in view of the infinite variety of data processing steps already in the prior art.

        Compare to Flook where setting the alarm limit was not enough, but setting off an alarm might have been enough.

        Right. I’m not sure why or whether the ancient step of “alerting” someone of a fact (e.g., the result of a “new” mathematical algorithm applied to data) can ever make the difference between an ineligible invention and an eligible (or patentable) one. The caveat, which is not really a caveat but the key point, is that if you invent a new structurally distinct sensor or measuring device and claim that sensor/device in structural terms, then you can add all the limitations about algorithms and alarms that you want.

        Yes, it’s more difficult to invent those kinds of things. You need to actually know something about science and you need to skilled in the art of making real things, as opposed to merely being good at math or realizing that (surprise!) collecting data and processing it with a computer is “valuable”.

        1. 5.3.1.1

          The caveat, which is not really a caveat but the key point, is that if you invent a new structurally distinct sensor or measuring device and claim that sensor/device in structural terms, then you can add all the limitations about algorithms and alarms that you want.

          But why would you? If you can get claims to your novel machine, then why bother adding limitations on its use?
          Furthermore, doesn’t this ignore 35 USC 100(b)’s definition of a patent eligible process including a new use for a known machine? What if we apply that to your pharmaceutical arts – all of those elements are well known (not to mention the molecules disclosed in the Merck index), so your new “use” of treating a disease with a known compound would be an abstract idea, no?

          1. 5.3.1.1.1

            What if we apply that to your pharmaceutical arts – all of those elements are well known (not to mention the molecules disclosed in the Merck index)

            You are repeating the basic thrust behind the purely logical extension of what I have playfully coined as the “Big Box of protons, neutrons, and electrons” “logic.” One does not need to rely on any Merck index, as the very same “logic” applies one rung down to the (non-eligible) basic constituents of every atom.

            Yes – if you apply Malcolm’s very own “logic” to its ends, you end up with simple nonsense.

            And yet, his eyes remain tightly clenched as to that being HIS “logic.”

          2. 5.3.1.1.2

            doesn’t this ignore 35 USC 100(b)’s definition of a patent eligible process including a new use for a known machine

            No. There’s no reason to believe that all “new uses” for a known machine are per se eligible. That makes so sense whatsoever. The statute — as everyone knows — makes no sense unless it’s read in light of the judicial exceptions.

            1. 5.3.1.1.2.1

              No. There’s no reason to believe that all “new uses” for a known machine are per se eligible.

              First, I note that you didn’t answer my first question regarding adding spurious limitations about algorithms and alarms to your new machine: “If you can get claims to your novel machine, then why bother adding limitations on its use?”
              I suspect that’s because you know the answer is “of course, you wouldn’t.”

              Second, your answer here doesn’t answer my question, except in the scantest, most meaningless way possible. I asked whether your statement that you must have a new machine in order to get a patentable process ignores the statutory definition of a process as a new use for a known machine, and your answer is that not all processes are patentable.
              Well, sure, but that doesn’t address the question, which I rephrase here for an explicit yes or no response from you: “in your opinion, does every process require a new machine to be patentable?”

              Your answer that some new uses are not patentable does not answer that question. We all know about 35 USC 102, 103, and 112. The question is whether or not there could ever be a new use of a known machine that would be patent eligible. Your previous statements suggest no, while the statute explicitly says yes.

              1. 5.3.1.1.2.1.1

                Abstract iDan,

                That part of the law as written by Congress ALSO confounds the other Windmill Chaser: Ned Heller.

                He has never – and I do mean never – come to grips with what Congress did at the definition stage of 35 USC 100 for process being broadened from his smaller view of “arts” to this direct refuting of the wayward, anti-patent Supreme Court with simple “use.”

              2. 5.3.1.1.2.1.2

                iDan: “If you can get claims to your novel machine, then why bother adding limitations on its use?”
                I suspect that’s because you know the answer is “of course, you wouldn’t.”

                Indeed. I assumed it was a rhetorical question. It’s certainly a rhetorical question I’ve posted here numerous times myself!

                “in your opinion, does every process require a new machine to be patentable?”

                Of course not.

                The question is whether or not there could ever be a new use of a known machine that would be patent eligible.

                I don’t see why not.

                Your previous statements suggest no,

                I don’t see that but I hope this clarifies things for you.

                1. LOL – you “not seeing” is supposed to bring clarity…?

                  Did you mean to speak nonsense like that?

            2. 5.3.1.1.2.2

              There’s no reason to believe that all “new uses” for a known machine are per se eligible.

              Move the goal posts back – and lose the false equivalancy.

              (gee, Malcolm doing what he so readily accuses others of doing – what shockers)

          3. 5.3.1.1.3

            And, let us not forget that the likes of anon and Night insist that a new use of an old computer makes the computer new.

            1. 5.3.1.1.3.1

              WRONG Ned.

              In several ways.

              First and foremost, you violate the patent law of inherency.

              Second, you engage once again in the fallacy of “just using” without the proper recognition that you cannot use a machine until you first CHANGE that machine and re-configure that machine with the software (the manufactured component) that you want to “just use.”

              Third, you omit the holding of Alappat (which is based on the reality of inherency).

              Fourth, you seek (once again) to ignore the plain and direct words of Congress in 35 USC 100(b).

              Shall I go on?

    2. 5.4

      What are you talking about? The word mechanics doesn’t need to be in DDR. The “modification of conventional mechanics behind website display” refers to how the claimed invention of DDR holdings modifies a linked website using appearance elements from the host website; or as the Fed Circuit describes it:

      “The patents-in-suit disclose a system that provides a solution to this problem (for the host) by creating a new web page that permits a website visitor, in a sense, to be in two places at the same time… [T]he host website can display a third-party merchant’s products, but retain its visitor traffic by displaying this product information from within a generated web page that ‘gives the viewer of the page the impression that she is viewing pages served by the host’ website.” [The system] instructs an Internet web server of an “outsource provider” to construct and serve to the visitor a new, hybrid web page that merges content associated with the products of the third-party merchant with the stored “visually perceptible elements” from the identified host website.”

  25. 4

    “The claims, defining a desirable information-based result and not limited to inventive means of achieving the result, fail under § 101”.

    Gratifying to see that the CAFC is coming around to the idea that the form of the results of a method claim are essential to a repeatable, reliable subject matter eligibility analysis.

    Next step: better line drawing when the results of a method are new, useful, and fully described information. All information is abstract, but if 101 is seen as the “wide gate” that Bilski says it is, some information may be patent eligible.

     I believe the proper line is easy to find. Hopefully the court will swing around to it if/when the concept is presented to a panel or en banc.

    1. 4.1

      f 101 is seen as the “wide gate” that Bilski says it is

      The perceived “width” of an abstract non-existent “gate” is entirely dependent on the volume of junk that you try to shove through it.

      1. 4.1.1

        I would be pleased if all results that comprise information are ineligible as abstractions. OTH, a reasonable case can be made that some information results should be eligible to accord with the law and doctrine we actually have; that case appears as technological test or similar, and appears mighty attractive to a plurality of the CAFC.

        Regardless of how that baby is eventually split, surely it should be recognized that overbreadth (i.e. a claim that is an idea about a kind of invention) is a different question than the intrinsic abstraction of a method invention that results in new and useful (processed) information.

        1. 4.1.1.1

          MS I would be pleased if all results that comprise information are ineligible as abstractions.

          That makes some sense if you are merely claiming “a result.” But the fact that a particularly claimed method results in information or the fact that a particularly claimed machine’s only purpose is to generate information is surely not a good reason to find that method or that machine ineligible per se.

          In other words, focusing on “the result” of a claim to determine its eligibility is a non-starter at worst, and a dead end at best.

          1. 4.1.1.2.1

            “broad vs narrow is not equivalent to tangible vs abstract”

            I completely agree. The judges of the CAFC conflate them constantly.

      2. 4.1.2

        I don’t know if you noticed, Martin, but this statement from the decision (among others) would seem to cut against your proposal to limit the eligibillity of “do it on a computer” claims to those methods that result in information of use only to machines:

        Merely requiring the selection and manipulation of information—to provide a “humanly comprehensible” amount of information useful for users, Reply Br. at 6; Electric Power Group Br. at 14–15—by itself does not transform the otherwise-abstract processes of information collection and analysis.

        Note the term “by itself”, referring to the limitation regarding “humanly comprehensible”. As I’ve said before, I don’t see the CAFC or the Supreme’s ever buying into the distinction that you proposed (much less the general public or Congress).

        1. 4.1.2.1

          MM “by itself does not transform” means that well understood act of information processing can’t itself be the invention. I seek no changes to the law or doctrine of obviousness/novelty other than their incorporation into a preliminary patentability review as part of the Markman procedure, based on Alice, focused on breadth and preemption, and designed to avoid the restrictive (to both sides) need for the 12(b)6 procedure.

          In my view, for an information result to be a patentable invention, it would have be new, non-obvious, fully described, where the value of the infringement may not be found in the use of the information by a person.

          1. 4.1.2.1.1

            Also MM, this line at human involvement keeps cropping up in different places, like the printed matter doctrine; the “technological” test for CBM review, the mental steps doctrine, inter alia.

            Abstract means perceived by a human being- that’s the irreducible definition of the word. Sooner or later that’s going to have to be dealt with….

          2. 4.1.2.1.2

            MS for an information result to be a patentable invention

            “Results” are already ineligible for patenting. And so is information.

            So it’s not clear what you’re talking about, Martin.

            1. 4.1.2.1.2.1

              US 4,472,747 and many others- this is an MPEG patent.

              If the result of the method is not information, what is it?

              If the result is not the subject of the patent, what is?

              1. 4.1.2.1.2.1.1

                Martin, you’re missing the point or moving the goalpost.

                You talked about “an information result” being a “patentable invention.”

                Information isn’t eligible for patenting. Results, claimed as such, without structurally distinguishing the result from the prior art, are also not eligible (e.g., “a cancer free dog following treatment with dilute aspirin”, “a machine that, after manufacturing, weighs less than two pounds and can fly 700 miles per hour”).

                So what’s your point with the MPEG patent?

                MS: If the result is not the subject of the patent, what is?

                Usually it’s the process of achieving the result. That result may or may not be eligible, depending on kinds of fact questions.

                1. Martin, you’re missing the point or moving the goalpost.

                  From the master of doing just that….

                  Oh, the irony.

                2. MM, where is the new, described structure in the MPEG patent?

                  The entire thing is made of information- the technique itself is information, the steps of the process are all information based, and the result, if it were to be construed, could only be an abstraction.

                  In my scheme, the consumer of the method is an MPEG decoder, a non-human actor, and therefore the method should be eligible.

                  When I suggest that every method should have a result construed as matter of law, it’s not the particulars of the result that matter – its the form of the result. If the result is information, then how is abstraction avoided unless there are distinguishable differences between kinds of information that change the degree or character of the abstraction?

                  “moving the goalposts” is a handy accusation when you are in a corner- but MPEG, encryption, and other data techniques are widely seen as desirable to patent and I don’t see how we can get away from it.

                3. MS MPEG, encryption, and other data techniques are widely seen as desirable to patent

                  Really? Did you take a poll? Let’s see the poll. Otherwise it seems likely to me that you’re just spouting the old “entitlement/expectation” argument for your favorite logic patents.

                  where is the new, described structure in the MPEG patent?

                  There isn’t any. Again, since you seem to want to walk away from the facts, here they are again:

                  Information isn’t eligible for patenting. Results, claimed as such, without structurally distinguishing the result from the prior art, are also not eligible (e.g., “a cancer free dog following treatment with dilute aspirin”, “a machine that, after manufacturing, weighs less than two pounds and can fly 700 miles per hour”).

                  Got it? It’s not a difficult point.

                  As for this question you asked: If the result is information, then how is abstraction avoided

                  I want to first make sure that you’ve tried to answer it yourself. Have you tried to answer it yourself? Because there’s two easy answers (at least). I’d like to hear you first admit that you aren’t able to come up with those answers on your own. That shouldn’t be a problem for you, right? Because you are interested in learning, presumably. Just let me know.

                  Otherwise it’s safe to assume you’re just tr0lling. I’m sure you understand, Mr. MPEG luvver.

                4. MS MPEG, encryption, and other data techniques are widely seen as desirable to patent

                  “Really? Did you take a poll?”

                  One can read regular polls of the 11 people whose opinion counts every time they are posted. They keep saying so, despite your advice.

                  I’ll note that mpeg patents exist and are widely licensed without a lot of litigation activity, so licensees must assume strong claims.

                  At some level, if you have an invention that meets the requirements of the statue and doctrine, you are entitled to a patent. Is that controversial?

                  “where is the new, described structure in the MPEG patent?

                  “There isn’t any. Again, since you seem to want to walk away from the facts, here they are again:

                  “Information isn’t eligible for patenting”.

                  And yet thousands of patents on information exist, including this one.

                  Results, claimed as such, without structurally distinguishing the result from the prior art, are also not eligible (e.g., “a cancer free dog following treatment with dilute aspirin”, “a machine that, after manufacturing, weighs less than two pounds and can fly 700 miles per hour”).

                  Got it? It’s not a difficult point.”

                  So if a result is not a patentable subject, how is a patent on a new use for an old drug justified?

                  “As for this question you asked: If the result is information, then how is abstraction avoided”
                  That shouldn’t be a problem for you, right? Because you are interested in learning, presumably. Just let me know.”

                  VERY interested in learning, naturally.

                  So as to the question:

                  “As for this question you asked: If the result is information, then how is abstraction avoided?”

                  One answer would be it can’t be avoided, and need not be, because patents are on steps in processes and not results.

                  Another would be if there was some inventive step involving an apparatus or composition of matter that leads to the information result.

                  My scheme deals with those answers. The acceptance of abstractions in the patent system is ultimately a political question, because at the time of the framing and in 1952, it was unforeseen that abstractions would be overwhelming utility elements of the future industrial world, but even more basically, without limitation on abstractions, patent law would swallow economic liberty. My scheme works perfectly as a political answer, and as a logical, literal bright line in how to deal with abstractions.

                  The second case is easy; judges need to construe the results of method patents. It’s being done now with Alice. The result needs to be analyzed for abstraction i.e. is it information? and it’s relationship to the steps of the method (are the steps all abstract?) and of course the claims themselves have to be looked at for breadth and definiteness.

                  Most times, the result will construed as not pertinent to infringement. Sometimes, when the result is information consumed by people, the value of infringement must be indefinite- the subject matter is abstract and therefore the claims ineligible under 101.

                  Otherwise it’s safe to assume you’re just tr0lling. I’m sure you understand, Mr. MPEG luvver.

                  I’ve been on this board for years now. You know I’m not a troll and you know I have a very specific agenda, which I am going to advocate repeatedly and widely until I drop or someone convinces me that my scheme is any more defective than anything in current law or doctrine.

                  I have said before and I will say again; to me, if every patent on information was automatically invalid, I would be happy and comfortable that is the best thing for the USA.

                  I think that outcome is politically impossible. To avoid it, we now have levels of judicial roulette not seen in the patent system at least in the last 75 years. The game is unfixable without a definition of abstraction and a Markman like step for patentability based on Alice.

                  Please, teach me about MPEG patents- I really want to know. To you, are they presumptively invalid?

                5. To you, are they presumptively invalid?

                  Mr. Snyder, Malcolm is on record here as believing that any and all software patents are not eligible.

                  Period.

  26. 3

    MM, someone’s been reading our posts.

    “Information as such is an intangible. … Accordingly, we have treated collecting
    information, including when limited to particular content (which does not change its character as information), as within the realm of abstract ideas.”

    “In a similar vein, we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category.”

    “And we have recognized that merely presenting the results of abstract processes of collecting and analyzing information, without more (such as identifying a particular tool for presentation), is abstract as an ancillary part of such collection and analysis.”

    “[T]he focus of the claims is not on such an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools.”

    And, harkening to Rubber-Tip Pencil,

    “The court identified the problem
    addressed by the patents: “Here, the problem is the need
    to monitor and analyze data from multiple distinct parts
    of a power grid.” J.A. 30. But, the court reasoned, “there
    is a critical difference between patenting a particular
    concrete solution to a problem and attempting to patent
    the abstract idea of a solution to the problem in general.”
    Id. Electric Power Group’s asserted claims, the court
    observed, do the latter: rather than claiming “some specific
    way of enabling a computer to monitor data from multiple
    sources across an electric power grid,” some
    “particular implementation,” they “purport to monopolize
    every potential solution to the problem”—any way of
    effectively monitoring multiple sources on a power grid.
    Id. Whereas patenting a particular solution “would
    incentivize further innovation in the form of alternative
    methods for achieving the same result,” the court concluded,
    allowing claims like Electric Power Group’s claims
    here would “inhibit[ ] innovation by prohibiting other
    inventors from developing their own solutions to the
    problem without first licensing the abstract idea.” Id.

    1. 2.1

      “A patent is not good for an effect, or the result of a certain process, as that would prohibit all other persons from making the same thing by any means whatsoever. This, by creating monopolies, would discourage arts and manufactures, against the avowed policy of the patent laws.”

      LE ROY ET AL. v. TATHAM ET AL., 55 U.S. 156, 175, 14 L. Ed. 367 (1852).

      link to scholar.google.com

      1. 2.1.1

        Ned –

        Could it be that in 1852, one needed explicit recitation of gears, levers etc. to understand how to build the claimed machine, but that in the computer age, when it is explained that the invention is implemented using a processor configured to perform certain functions, that that is sufficient for one of ordinary skill in the art to make and use the invention without undue experimentation?

        Furthermore, was it not entirely acceptable in 1852 for a claim to recite: the first member being attached by a fastener to a second member?

        Nevertheless, would that not :prohibit all other persons from making the same thing by any means of fastening whatsoever?

        How is that any different than recitation of, for example —configured to filter third and fourth harmonics from the signal to reduce an amplitude of the harmonics in an output of the filter by at least about 30 db as compared to an amplitude of the harmonics in the input signal to the filter— ?

        In the first case we know some type of fastener is used, but the claim isn’t limited to a particular type or set of types, the point is, the elements are fastened together. In the second case we know some type of filter is used but the claim isn’t limited to a particular type or set of types, the point is, the harmonics are filtered.

        1. 2.1.1.1

          It is not any different. Anyone that looks through some old patents knows that Lemley misrepresented just about everything in his vanity published piece on functional claiming.

          Les, you are dealing with unethical judicial activists. Reality means nothing to them. They are being paid to burn the patent system down.

        2. 2.1.1.2

          Les, “how to build the claimed machine….”

          Les, we are not talking about claiming the machine here, but what the machine does. The problem is the scope of the claim as it covers all machines that do the same thing. The claim is not really to the machine, but to the result.

          Now, we have 112(6). If there were particular machine described, perhaps the construction would have limited the claim to that machine to save the claim. Otherwise, the claim violates the pith and essence of Le Roy v. Tatham and all the cases that followed it that one cannot claim results.

            1. 2.1.1.2.1.1

              Ned never does. He just acts as if he is polite and knowledgeable and reasonable and then lights the fire to burn the witch.

            2. 2.1.1.2.1.2

              Les: How is that any different than recitation of, for example —configured to filter third and fourth harmonics from the signal to reduce an amplitude of the harmonics in an output of the filter by at least about 30 db as compared to an amplitude of the harmonics in the input signal to the filter— ?

              Les, the problem here is that if one claims structure one has to describe that structure. It is not a question of enablement.

              With the claim in question, the configuration is what is being claimed, not the function. That configuration must be described. In most specifications it is not described because how to perform the function is not the invention and it is a given that it is well within the skill of the art to create code to perform any function that can be describe. But when one claims the structure that performs the function, one has to describe that structure.

              In order to avoid having to describe the structure of software, one simply has to claim the software in a method claim where the steps involved are independent of any code.

              There is a difference between claiming a screw and an act of attaching one thing to another. I can claim two pieces of wood attached to one another. It does not make any difference how they are attached, so long as they are attached. In contrast if I claim two pieces of wood and a screw connected between the two pieces of wood to attach them together, I have to disclose a screw.

              1. 2.1.1.2.1.2.1

                In most specifications it is not described because how to perform the function is not the invention and it is a given that it is well within the skill of the art to create code to perform any function that can be describe.

                You go too far. Method claims generally rise and fall with system claims under 101. When you don’t limit the software’s functional result properly, you’re also not limiting the method properly.

                1. Random, the system claims follow the method, not the other way around.

                  The method can be independent of any software as the it is the result of the process that counts. That result must be within the useful arts and physical. The individual steps can be performed by trained monkeys, pen and paper or by a computer.

                  Consider Diehr. It involved a programmed computer. But the claim could have simply said, take the inputs, X, calculate Y from X using formula Z, and then open the mold when time = Y. That method could have been equally performed by said trained monkeys, by circuits or by a programmed computer. The means is irrelevant.

                  I would say that “do the math on a computer”is sufficient just as it was in Diehr.

                2. Random, the system claims follow the method, not the other way around.

                  Doesn’t matter, the method claims are invalid under 101 too. Alice put that to rest.

                  That method could have been equally performed by said trained monkeys, by circuits or by a programmed computer. The means is irrelevant.

                  Oh come now, you’re smarter than to say that the means are irrelevant. Are you seriously suggesting that if you actually had that claim scope you would go before a judge and say “Well look, we disclose a processor embodiment, but the claim encompasses a monkey embodiment, something which we have no enablement for *and would require wildly different enablement* but the act is not abstract”?

                  Diehr, in Alice parlance, at a minimum found the press components to be significantly more or at most found that the claim as a whole constituted significantly more, you can’t remove the machine features and categorically say that the claim would have survived. Your argument requires a “take the inputs” step which is tied to specific machinery and “open the mold” which requires the features of the machine.

                3. Random, System claims can claim apparatus functionally and be invalid under 101. Method claims do not claim apparatus at all, at least, not proper method claims. They do not suffer under 101 (unless drawn to non statutory subject matter like math) or unless they claim a result and not a process.

                4. They do not suffer under 101 (unless drawn to non statutory subject matter like math) or unless they claim a result and not a process.

                  No. The fact that they assert a process on their face is not dispositive of 101 in the same manner that asserting a processor does not inherently make something a machine under 101. The question is what is the gravity of the claim drawn to and what additional elements are included.

                  “Steps” just like “elements” or “apparatuses” can be claimed functionally, it’s just harder to see when they are functions. But when they are functions they will trigger 101 just like anything else.

                  There is no difference, for example, between a claim to code that directs a computer to “determine” or “analyze” something in a broad generic manner and a process step that orders one to determine or analyze. You can’t “do” analysis, you can do (a wide variety of different) steps which in the aggregate would be called an analysis, but “analyze” is a functional term. A step calling for analysis is a functional step, and is broad and vague enough to trigger an abstract idea inquiry.

                  For example: A method for drinking clean water, comprising:
                  Acquiring water
                  Determining if the water is clean
                  If the water is clean, drinking the water
                  If the water is not clear, disposing of the water

                  That is undeniably a “process” in that it is a series of steps, but it fails 101. That method is abstract, because the inventive aspect is “determining if the water is clean” and there is no concrete test or algorithm for achieving that function. It’s abstract if claimed as a method. It’s abstract if claimed as a computer-implemented method. It’s abstract if its claimed as a system with a processor and code to perform the steps.

                5. gravity of the claim drawn to

                  Oy vey.

                  The invention is what the applicant states in the claim.

                  All this “gravity” plainly s ucks (as well as the “directed to” and “Gisting” which is exactly what Congress was reacting against in the Act of 1952 when they removed the power of common law evolution to set the meaning of “invention” from the courts and broke what was one single paragraph into multiple sections of law.

                  When all else fails, read (and understand) the statute.

                6. As I said, Random, method claims that do not specify acts, but the result to be achieved, claim results. Unless protected by 112(f), they are indefinite on their face per Perkins Glue. If protected by 112(f), they cover the corresponding structure, materials and acts described in the specification and equivalents. If there is no such structure, etc., described, the claim is indefinite.

                  This is not, nor should it be, a 101 issue. It is a 112 issue.

                  But, as we ALL know, the Federal Circuit, lead by GS Rich, believed that Congress had authorized functional claiming. But has we currently see, the Feds are now putting teeth into 112(b), where the Supreme Court would have historically simply held the claims invalid. They still might, given the commands of Nautilus, which I think they take seriously and which the Federal Circuit also now seems to take seriously as well.

                  So, when I speak of method claims, I mean real method claim that describe acts, as in a mathematical algorithm, or in a method of cooking eggs.

                7. There Ned goes again – with personal attacks on Judge Rich instead of realizing that Judge Rich was the single most knowledgeable person about what Congress did….

              2. 2.1.1.2.1.2.2

                Yes Ned let’s just ignore known solutions and enablement.

                Let’s just ignore reality for that matter go into the world of the witch hunters…

              3. 2.1.1.2.1.2.3

                Ned –

                These discussions are difficult enough to follow without you changing the subject. In my example, both claims were to apparatuses. We focused on one element in each claim:

                1852 claim: the first member being attached by a fastener to a second member

                modern claim: a processor configured to: filter third and fourth harmonics from the signal to reduce an amplitude of the harmonics in an output of the filter by at least about 30 db as compared to an amplitude of the harmonics in the input signal to the filter—

                Both claim structure. The 1852 claim recites first and second members that are fastened together. The modern claim recites a processor configured in a particular way (to perform a particular function).

                Just as the 1852 claim reads on many fasteners, the modern claim reads on many implementations/embodiments.

                Why is the structure of the modern claim any less described than the structure of the 1852 claim? The modern claim specifies a 30 dB reduction in amplitude of third and fourth harmonics. The 1852 claim doesn’t even specify screw, bolt, glue or Duck Tape.

                I know there is a difference between “claiming a screw and an act of attaching one thing to another. ” Those weren’t the things I compared. Yes, if you claim the screw you need to describe the screw. The example does not claim a screw. It claims two elements attached with a fastener.

                I think you agree that my 1852 element recital is/was acceptable.

                I think you think my modern claim element is not acceptable.

                I would like to know what difference you see between them.

                The both seem to be eligible if broad functionally claimed apparatus claims to me.

                1. Les, neither fastener, nor the processor configuration, claim known structure so that one would not have to look to the spec to see exactly what it was. Both are examples of the functional claim element. The historical construction would be to construe the claim to cover the corresponding structure. Today, we have the command of 112(f).

                  Now, if the particular structure of the fastener is not important, just claim members fastened together.

                  But the processor claim suffers from another problem: it does not claim any structure or series of steps/act, just the result. As such, 112(f) clearly applies and the claim covers the corresponding structure or acts that accomplish the result. If that is not described at all, but just a black box that achieves the result, then the claim is indefinite. Enablement is not the issue. It is a complete failure to describe the structure or steps.

                2. just claim members fastened together

                  /face palm

                  You have badly missed the point, Ned.

                  Again.

                3. Today, we have the command of 112(f).

                  And yet another miss, as the use of terms sounding in function are allowed per the Act of 1952 outside of just 112(f).

                  To use Professor Crouch’s coined term: this is the Vast Middle Ground.

                  This drive-by internet style shout down of yours Ned has just got to stop.

                4. Ned – The filter is but one component. The processor is configured to do other things. The processor is configured to perform a plurality of steps. While the order of the steps my be optional, they can be thought of as a series of steps. Filtering is a step Ned.

                  Would the claim be eligible if it just recited: filter the input signal —without specifying the filter characteristics of the filter by the desired result?

                  Would the claim be eligible if it just recited: filter the input signal using the Chubichev technique?

                  Would the claim be eligible if it just recited: filter the input signal using at least one of a Chebyshev, Gaussian, Bayesian, low pass, high pass, band pass technique?

                  What if the spec listed all of these and also said or any technique for reducing the amplitude of third and fourth harmonics at least 30 dB?

                  Just as they didn’t have to list every fastener in 1852, we shouldn’t have to list every method for filtering now.

                  Filter is a broad word. If its too broad, find a document that filters third and fourth harmonics at least 30 dB in combination with the other activities of the processor recited in my claim.

                5. Les,

                  Your exchange highlights the fact that some are attempting to conflate eligibility (101) with patentability (102/103/112).

                  Congress (Note, Ned, NOT your attempted muckraking of a certain writer for Congress and later judge) – but Congress – acted in 1952 to take the single pre-1952 paragraph and break that paragraph into seperate sections of law.

                  What we see is the vestiges of the Court (and those that favor the addicted ways of the Court) trying to maintain its pre-1952 common law power to set the meaning of the word “invention” in the pre-1952 single paragraph sense of the (old and not longer in play) law.

                6. Anon, yes they broke it into two pieces so that they could bring into the new 102 all the defenses to infringement and make them a condition of patentability. That is what Federico said.

                7. Not just that Ned – as Federico also explained.

                  (you also need to venture into the definition section of 35 USC 100 – something that you also seem to disappear from)

        3. 2.1.1.3

          In the first case, the claim is not asserting to have invented “a fastener.” If the invention *was* a new type of fastener then reference to it by its function (“a fastener”) violates 101.

          In the second case, the claim will be construed to be referencing a particular structure in the specification. If the claim was construed outside of means-plus (i.e. any element which had the effect of performing the novel function) then the claim would be invalid under 101.

          There is no inherent problem with functional language (as pretty much everyone on this board has always agreed) but when functionality appears at the point of novelty then the claim runs into a whole host of issues under 101, 112a and 112b (which some have trouble grasping). You can’t invent a functional result, all you can do is invent a particular machine that achieves the result in a particular way and claim that.

          1. 2.1.1.3.1

            And you can claim a process that achieves a result independent of any particular means.

            1. 2.1.1.3.1.1

              But with enablement it is not independent of any means, is it?

              Ned, why do you play such ridiculous games?

            2. 2.1.1.3.1.2

              No you can’t Ned. A claim to a result absent means is a claim to the result itself and the result is not an invention.

                1. Ned,

                  You are not saying what you think that you are saying.

                  If polar opposites Random and Night both take issues with your statements, it is time for you to take a look at your statements.

                  Just saying.

                1. Les, 112(f) applies. If there is sufficient corresponding structure, yes. Otherwise the claim is indefinite.

                  I don’t see why one should get to 101.

  27. 1

    12. The performance monitoring system of claim 1, wherein the monitor computer activates an alarm when a performance abnormality is detected in at least one metric of the monitored metrics.

    If only the claim recited opening a mold oven door instead of just activating an alarm.

    1. 1.1

      Les, it is interesting that actually ringing the alarm — or not — was the focus of the Court in Flook.

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