by Dennis Crouch
In a new Supreme Court petition, Trading Technologies (TT) has again challenged USPTO and Federal Circuit eligibility determinations.
TT v. Lee asks the following question:
Given that 35 U.S.C. § 100(b) sets forth that a patent eligible “process” includes a “new use of a known process, machine, manufacture, composition of matter, or material,” did the Federal Circuit err by holding that an indisputably new and non-obvious use (i.e., game steps) of an existing manufacture (i.e., playing cards) was patent ineligible under Alice Corp. v. CLS Bank Int’l, 134 S.Ct. 2347 (2014)?
The underlying appellate decision In re Smith involves a patent application claiming a new method of playing Blackjack. The new approach offered by offers ability to bet on the occurrence of “natural 0” hands as well as other potential side bets. Claim 1 in particular requires a deck of ‘physical playing cards” that are shuffled and then dealt according to a defined pattern. Bets are then taken with the potential of more dealing and eventually all wagers are resolved. The Federal Circuit affirmed the PTAB/Examiner determinations that the claimed method of playing cards constitutes an unpatentable abstract idea. As I previously wrote:
The court held that a wagering game is roughly identical to fundamental economic practices that the Supreme Court held to be abstract ideas in Alice and Bilski. . . . Following the Board’s lead, the appellate court then found that the “purely conventional steps” associated with the physical act of playing cards do not “supply a sufficiently inventive concept.”
Important for this case, the court noted that some card games are patent eligible, but that universe appears to be limited only to patents claiming “a new or original deck of cards.” Of course, the patent statute expressly states that processes are patent eligible – and that set of eligible processes “includes a new use of a known process, machine, manufacture, composition of matter, or material.” 35 U.S.C. 100(b).
Above the Statute?: An important fundamental question is whether the eligibility exceptions of Alice and Mayo supersede the statute. Some argue that their origins are Constitutional – embedded in the “discoveries” limitation and thus control the law regardless of the statutory text. But the Supreme Court has repeatedly indicated that the abstract idea and law of nature exceptions are grounded in the 35 U. S. C. §101 (despite the absence of express language). Under a plain language interpretation, these atextual exceptions should not be extended so far as to conflict with the statute — especially the express definitions of §100(b). Thus, TT writes:
Under the statute, new processes that use conventional equipment or materials are clearly patent eligible subject matter. 35 U.S.C. § 100(b) (patent eligible processes include “a new use of a known process, machine, manufacture, composition of matter, or material.”). This Court has never abrogated § 100(b). And Alice did nothing to change this. Indeed, to fail the first step of the Alice test, a claim needs to tie up an “abstract idea,” which for purposes of this test was defined to be a preexisting practice that serves as a fundamental “building block of human ingenuity,” such as a “longstanding” and “prevalent” economic practice. . . . The Federal Circuit has improperly extended Alice step one to claims that indisputably recite a new set of game steps that was not preexisting, let alone “fundamental.”
My own take is that the Constitutional intellectual property clause probably does have some teeth and – as an extreme example – would not empower Congress to authorize patents covering abstract ideas as such. That said, Congressional power certainly extends to authorizing the grant of patents covering the types of inventions being identified as abstract ideas under Alice Corp such as the blackjack game at issue here.
DISCLOSURES – The petition was filed by my friends and former colleagues Leif Sigmund and Jennifer Kurcz at the MBHB firm and the firm is a paid sponsor of Patently-O. I also represented TT in other matters up until 2007. That said, I have not discussed this particular case or my here with TT/MBHB other than to request a copy of the petition after I noted its filing.
This is for Professor Crouch. I’m unfamiliar with the expression “cabin-in” and have been unable to find a definition for it. What did you mean by the use of that phrase?
I believe that he may be using that phrase as it was used in the Bilski decision when that case indicated what the case of Diehr did to the prior cases of Flook and Benson (e.g., curtail or limit the applicability or power or reach of).
Thank you.
Cabin-In = Limit, confine; enclose tightly; cramp.
So, the real title is “Does the Patent Statute Limit the Abstract Idea Exception? (Yes)”?
I also had no idea what “cabin-in” meant, having never heard of it before. I simply ignored it, since the answer of “Yes” is already there. I could therefore derive the meaning from reading the rest of the text. I also assumed that the title was there merely to provoke people into histrionics.
The problem, though, is that the patent statute seems to be ignored by the Supreme Court. For instance, they seem to have read out the fact that invention could mean discovery. The term discovery is basically gone. Also, they went from “anything under the sun can be patented” to “only those things that fit our ideas of what should be patented can be patented, but we’re going to explain those ideas to you in such arcane language and with such poor reasoning that it’ll be impossible for you to define what is and is not patentable, except in very limited instances.”
As mentioned PatentBob, the word “cabin” has been used previously in the context of patent law (in 101 Supreme Court cases specifically).
No “histrionics” required.
(and yes, your further comments as to the Court muckery are accurate)
Sorry for the confusing languages.
Looking at how disjoint this thread has become, I have to wonder what this thread would look like had the good professor taken my previous advice and merely shunted the dogmatic (and off-topic) rants to some other place on the blog.
I think that there are still some university students down at the local coffeee house who could set that up over the weekend for the small price of a few pizzas.
“Make it so”
😉
OT, but it appears that *none* of the roughly 25 oral arguments heard by various CAFC panels in California last week (Oct. 4-6) were recorded. Either that or there is some extra lengthy delay in getting them uploaded.
If anyone knows whether those hearings were unrecorded, please advise (seems like a pretty easy thing to set up in 2016).
Technical difficulties know no year Mr. “it’s the current year”.
MM,
This happened last time they went on a roadshow. Because they’re not in their usual location, takes some time to get the audio posted. I’d expect the files within a week.
Thanks, Jane!
Almost 300 comments (much more if you count the flushed Malcolm ones and the rebuttals to those), and it appears that only mine and an extremely small handful of others are actually on point to the item of this thread.
Ask yourself what is so threatening about 35 USC 100(b) and the plain definition of process that generate so much dust-kicking?
Since you seem to spend most of your waking day on Patently-O, why don’t you take some of that time to expand your vocabulary. Try looking up “monomania” on an online dictionary. A useful word.
“Repetition is the key to learning,” HOPB…
😉
Regarding the awesomeness of entities owning exclusive rights to “limited” rules as applied to specific situations, what could possibly go wrong with this?
link to autoexpress.co.uk
Future autonomous Mercedes vehicles will prioritise saving their own occupants in no-win traffic situations, its safety executives have told Auto Express.
The tricky moral question continues to be debated by lawmakers, ethicists and lawyers, but for Mercedes’s Manager of Driver Assistance Systems, Active Safety and Ratings, the answer couldn’t be clearer.
“If you know you can save at least one person, at least save that one. Save the one in the car,”
So Mercedes will own the rule that says “When faced with choice between hitting truck head on and wiping out mother pushing baby carriage, hit the mother and child.”
And Prius will own the rule that says “When faced with choice between hitting truck head on and wiping out mother pushing baby carriage, hit the mother and child unless (a) instructed otherwise or (b) data has been received, wherein data indicates that driver has a terminal illness and is going to die soon anyway.”
Limited rules! So awesome. Is it too early to write the obituary for McRo? Of course it isn’t.
After reading your diatribe, I am still unsure what’s wrong with having rights to those “rules”. Could you be more clear?
I am still unsure what’s wrong with having rights to those “rules”.
And this is why I love the fact that Dennis keeps you around.
Priceless.
…in your mind (again).
That must be an “interesting” place (in the sense of the Chinese proverb)
When you drive a mercedes you can rest assured that at least someone thinks you’re better than the plebs around you.
As I said when it first came up, this case was wrongly decided. I’m not sure I buy that it was a systemic error, but the subject matter was eligible.
The problem is at pgs 5-6 of the decision where the court concludes “The claims here require shuffling and dealing “physical playing cards,” which Applicants argue bring the claims within patenteligible territory. J.A. 10–11. We disagree. Just as the recitation of computer implementation fell short in Alice, shuffling and dealing a standard deck of cards are “purely conventional” activities.”
It’s true that “shuffling and dealing” are conventional acts, but when considering the claim as a whole the particular order of shuffling, dealing and betting is unconventional in a relevant manner. It should have passed Step Two of Alice.
The court then goes on to say “That is not to say that all inventions in the gaming arts would be foreclosed from patent protection under § 101. We could envisage, for example, claims directed to conducting a game using a new or original deck of cards potentially surviving step two of Alice.”
I don’t think that the presented question fairly tracks the opinion. The opinion said that “shuffling and dealing” were conventional. They are. The claims claimed a particular type of shuffling and dealing which was not considered and is error. But the court did not make a sweeping statement that you necessarily had to have new pieces to achieve eligibility (contrary to what both the presented question and how this site headlined the opinion). The court said that one manner in which you could achieve eligibility would be to do those things.
The case was wrongly decided, but the Supremes don’t take every wrongly decided case. I’m not sure the systemic problem exists here which the petition makes it out to be. The opinion didn’t sweepingly hold that new uses of an existing manufacture are always ineligible, the opinion held that the manufacture was existing, the genus of claimed uses of the manufacture was existing, and (implicitly) found that the specific uses of the manufacture were not enough to be significantly more. The last finding was wrong but is also extremely particular to the facts.
RG the specific uses of the manufacture were not enough to be significantly more. The last finding was wrong
No, it wasn’t. Show everyone the claims. Then posit the simplest scenario upon which the claims read. That’s how you do the analysis.
Given the “technology” here, the CAFC for once didn’t fall into the facile trap of reading the claim as if it was limited to a very complicated situation, as it typically does when presented with a shiny computer claim (e.g., interpreting the claim to apply only to a situation with “millions of users”).
Show everyone the claims.
There’s a link to the previous post. The previous post has a link to the opinion. The opinion has the claims. The claims are 9 particular steps. Most, if not all, of those steps are conventional acts. But when considered as a whole, the act is not conventional. I would assume obviousness was passed based on the claim-as-a-whole here too, rather than a particular non-obvious act.
Given the “technology” here, the CAFC for once didn’t fall into the facile trap of reading the claim as if it was limited to a very complicated situation
Something doesn’t have to be complicated to be directed to an inventive concept. Nor is there any reason to harp on it being directed to the use of a 52 card deck. If I invent a lightsaber, and the lightsaber includes a screw, the claim is eligible whether I couch the subject matter in terms of my unique structure which includes a screw or whether I couch it in terms of my old screw which is put into a unique structure. Eligibility does not depend upon the scrivener’s skill. Either a scope is eligible or not, it doesn’t matter from what angle you view it. It’s not proper to categorically say that an old deck utilizing new methods is ineligible unless you can categorically say that new methods which use old items is ineligible, which clearly is not the case.
RG: Something doesn’t have to be complicated to be directed to an inventive concept.
Nobody is saying otherwise. Certainly I never said that.
I’m saying that if you’re claim reads on a physical situation that is in the prior art, the fact that you’re layering some “new meaning” on top of that situation will never save the claim from ineligibility.
This is a pretty straightforward logical application of fundamental patent law. I’m happy to provide reams more simple examples for you. There are an infinite number of them, of course, and they are very very very easy to devise. That fact is just one of the many reasons that new game rules applied to a standard playing card decks are ineligible. Going further, it’s a great reason to keep games out of the patent system, period (and the utility requirement also helps with that).
The “layering of new meaning” language…
…means what exactly?
That you don’t have to take the claim as a whole?
That you can “Gist” away the parts of the claim that you don’t like?
…that you can move the goalposts and talk as if the claim is ENTIRELY in the mind?***
*** reminiscent of your recent false accusation, which you backtracked on within 24 hours…
As if you can deny doing exactly as I have described…
And yes – you once again attempted to evade the question put to you.
“Go figure Folks”
The “layering of new meaning” language……means what exactly?
It means exactly what I said. Your transparent and feeble attempts to pretend you were born yesterday are going to be ignored. You are free to double down and admit that you are too ign0rant to follow the conversation.
Here’s an even simpler example.
I claim:
1. New structurally distinguished useful object. <- eligible (let's call it "widget")
Afterwards, you claim
1. A game, wherein said game comprises transferring ownership of a widget. <– ineligible
or
2. A method, comprising using said widget to symbolize safety. <– ineligible
Get it? I hope so. I think it's pretty easy to understand why a sane patent system doesn't mess around with junk like the latter two claims but I'm happy to explain that, too, if you can't figure it out for yourself. In fact, it'd be a great exercise for you to tell everyone why this is the case. Then we know that there is a tiny glimmer of hope for you. So go ahead! Make everybody's day.
Like the previous exchange, this has nothing to do with myself and what I may understand.
This is entirely what YOU mean to say.
(you had a really difficult time last time trying to grasp that simple fact – I do not expect your ability to grasp the similar fact this time to be any improved)
Lol right back at you: your first response like totally missed what I replied with and you had to type a second response to try to cover for the fact that you responded completely without thinking.
RG It’s not proper to categorically say that an old deck utilizing new methods is ineligible
Nobody is saying that, either. For starters, it doesn’t even make sense. A deck “utilizing new methods”? Decks don’t “utilize methods.” People use decks to play games and they’ve been doing so for eons without the patent system being involved. Why is that? Because patents don’t promote squat in the context of making up rules. It’s one of the many reasons that it’s very much worth “harping on” the silliness of such patents.
unless you can categorically say that new methods which use old items is ineligible, which clearly is not the case
I agree that, as a categorical matter, it’s “clearly not the case”. But it’s also clearly “not the case” that every method of using an old item is necessarily patent eligible just because at point the “old item” might have been new and eligible. Following along? I hope so. This isn’t very difficult.
“just because at point the “old item” might have been new and eligible.”
You put old item in parenthesis – so that you could weasel out of the rather apparent contradiction…?
I mean, why else would you not type the words normally?
Last time you tried to peddle tht, you were wrong as well.
This question on form here (as well) IS directly tied to the substance.
YOUR predilection on form has to do with mere expressive things like bold, italics and capitalization.
But go ahead and pretend that they are the same. It will be just our little secret how much of an arse you are.
“It’s true that “shuffling and dealing” are conventional acts, but when considering the claim as a whole the particular order of shuffling, dealing and betting is unconventional in a relevant manner. It should have passed Step Two of Alice.”
I lulzed.
“The problem is at pgs 5-6 of the decision where the court concludes “The claims here require shuffling and dealing “physical playing cards,” which Applicants argue bring the claims within patenteligible territory. J.A. 10–11. We disagree. Just as the recitation of computer implementation fell short in Alice, shuffling and dealing a standard deck of cards are “purely conventional” activities.””
I agree that what you quoted is a problem, but not for the reason you addressed, or at least not for ONLY that reason.
It a problem because being purely conventional does NOT make something ABSTRACT.
It a problem because being purely conventional does NOT make something ABSTRACT.
Naturally, I agree, but one will grow old waiting for the Court to acknowledge this truly elementary insight.
Can (should?) this be taken “implicitly?
After all, that is how the Court itself started down this road AFTER the Act of 1952 which created the actual section of 101 happened.
the subject matter was eligible.
Could you refresh everyone on your reasoning? I recall that you had a theory but I also recall that your theory had one gaping factual hole that was a bit problematic.
Sure – within the art of wagering, the manner in which one wagers is relevant. The art distinguishes between Texas Hold’em and Omaha and Blackjack and any other number of games despite the fact that they all “shuffle” and “deal” and “bet.” The particular order and manner of performing those acts is extremely relevant to one of skill. It’s an improper generalization to say that “all shuffles and deals” are the same in the same way it would be improper to say that a pen and paper allow you to write anything and therefore all books are the same, or that all computer codings are the same because they all use the same coding language.
It was error to say that the acts being performed were conventional and not consider that when the claim was considered as a whole – that the acts were performed in a certain order – it was not conventional. Changing the order and type of shuffling, dealing and betting is not some ancillary feature or uninventive act *as far as the art is concerned*. It constitutes significantly more.
This isn’t to say that all changes of shuffling, dealing and betting would be eligible. If one played a hold’em game with an extra card in hand (kind of a half way between hold’em and omaha) that game would not be significantly more, because it’s already been shown to be conventional that one can vary the starting hand size. But its a decision on the particular facts, and the court dismissed the particular facts by saying the genus itself (shuffling, dealing, betting) is conventional.
tl;dr – Some rule changes are eligible. Some rule changes are not eligible. It’s a fact based question. Summarily stating that a rule change is not eligible because it uses conventional acts is error when the court fails to consider the claim as a whole and ask if the ordering of the conventional acts would be an inventive concept to the art. Nobody sits down at a table because they’ll be performing “shuffling and dealing” with a 52 card deck. People sit down to play a particular game, because the particular type of shuffling and dealing is relevant.
the art of gambling on card games
Promote the progress!
The art distinguishes between Texas Hold’em and Omaha and Blackjack and any other number of games despite the fact that they all “shuffle” and “deal” and “bet.”
It’s not relevant to eligibility that some “art” “distinguishes” between different rules for different games.
It’s an improper generalization to say that “all shuffles and deals” are the same in the same way
Nobody is saying that. Certainly it’s not what I’m saying. Read exactly what I said in 25.1.1.
You can’t take an old act and make it eligible by layering a new meaning on top of it. If the simplest game scenario according to the “new rules” is indistinguishable from a prior art scenario except for the “new meaning” layered on top of the scenario, then the claim is ineligible. Basic stuff.
Let’s look at a simple example. Old card game (“Kings Three”) the first physical act is deal three cards face up to another player. If the three cards are kings, you stop dealing and the dealer wins. Otherwise a “bet is placed” (ineligible subject matter, fyi) and a fourth card is dealt face down. Got it? Now you come along with your super awesome “new” card game called Triple Death. In your card game, the dealer deals three cards face up. In your “new” card game, if three cards are a triple, then the player wins and dealer loses. We don’t need to know the rest of the rules because right there your claim is ineligible. You can’t use patents to “own” (and create liability for) what people are thinking or saying about the “meaning” of cards, period. End of analysis.
This type of problem isn’t unique to playing cards, by the way.
Your “basic stuff” is only in your mind and has no tie to the law as written by Congress.
That’s kind of the point here with the immediate case.
Maybe instead of just mindlessly repeating your mantra (no matter what else has been said by anybody), you actually look at the arguments and points presented in this case…
Your “basic stuff” is only in your mind
And this is where you are 100% wrong and — again — it’s why you and your c0horts are l0sing case after case after case, and it’s why you are going to continue to lose.
This “basic stuff” is the mind of every member of the Supreme Court, it’s in the minds of nearly every thoughtful jurist out there, it’s in the minds of tons of practitioners (like myself), it’s in the minds of tons of non-practioners who have spent more than five seconds thinking about it, and it’s in the minds of some of the smartest academics.
The only “minds” that haven’t digested this stuff are the minds that are willfully closed (because of self preservation) or who haven’t thought about it all or who lack the brainp0wer to deal with it. Or a combination of those.
And this is not news.
Mindlessly repeated (yet again): “You are wrong because Malcolm declares it so, so you and your cohorts take that”
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And yet, you evaded what I asked here and actually engaged the legal arguments on the table.
Shockers.
(actually did NOT engage – as was asked of you)
Except my statement is true.
That throws a curve to you and your ad hominem.
…and the focus is NOT “that I am engaged;” rather, the focus is on YOU and your lack of engaging.
You are far too mired in your number one meme of
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and need to NOT reflexively change out the subject of the focus like that.
Move the goal posts back please.
Just to be clear, when you say “this case was wrongly decided,” do you mean:
(1) merely that these claims should have survived Alice step 2; or
(2) that these claims really are §101 compliant?
That is to ask, do you mean to disagree with the point I make below about failing the substantial utility test under Brenner v. Manson, or do you just mean that they should not have failed under Alice?
I suppose 1. I take no position on whether gaming as a whole meets substantial utility. If the court is going to throw out gaming or entertainment subject matter (which is what I think you’re getting at), I could understand that. If they don’t, I could understand that too. But if you’re going to allow gaming patents then this one qualifies.
Got it. I wonder if any authoritative court has acknowledged gaming to be a substantial utility (bracket Juicy Whip for the moment because the discussion of slot machines in that case seems to me to be (1) contrary to higher authority and (2) mere dictum in any event). I know that Callison v. Dean, 70 F.2d 55, 58 (10th Cir. 1934) held that a coin-operated carnival game (a shoot-the-ball type of affair) had substantial utility, but CA10 precedent is not binding on the CAFC.
I have noted that your SC case and its views on “morals” was likewise dictum, Greg.
I take no position on whether gaming as a whole meets substantial utility… But if you’re going to allow gaming patents then this one qualifies.
As it happens, I do take a position on whether gaming meets substantial utility requirements. I think that gaming is not a substantial utility. That said, your argument above convinces me that you are correct. If one were to allow gaming patents, then this one should be 101-eligible.
Greg,
I do not think that your substantial utility view is correct.
You have not commented on the Juicy Whip case, and the instant case makes a valid point about the utility of the gaming industry.
Unless you want to set yourself up as Supreme Dictator and Evaluator of Morals, I don’t see how your opinion of what has substantial utility can carry any weight.
Care to share your response?
Worth posting on top:
Worth noting – and inviting the particular regulars who so often avoid discussing 35 USC 100(b) – most notably Ned Heller – just how extensive this change in statutory category was in 1952, moving the understanding of “process” in just one sense (the “arts,” or mere handmaiden of the hard good categories) into the more modern day understanding of the co-equal and “ordinary” “process as use.”
No longer “just” a handmaiden.
Part and parcel as to why Machine or Transformation (MoT) is NOT the law, but merely a clue.
These are direct words of Congress – and some of us here have long sought a substantive discussion on the merits of these words (while others have routinely ran away from any such discussion).
(slight change in emphasis)
Personally, I understood “machine or transformation” (or even better, a “concrete, useful, and tangible” result). Meanwhile, I have no idea what’s patentable after Alice.
It amazes me that after 50+ years, we still have no idea what to do with software (and the hardware that runs that software). Can we (meaning the courts, including the Supremes) meet this concept head-on, instead of running away from it and putting out rules that make no sense?
The words of Congress – without the scrivining of the Court – makes sense.
Especially if one understands that the law regarding innovation must be open to changes that innovation quite naturally brings with it (the law cannot know a priori what tomorrow’s innovation will look like).
I definitely agree that I knew what was and was not 101 eligible under “machine or transformation,” and that it is a lot harder to know under the Mayo/Alice test. One could say the same thing, incidentally, about TSM and KSR.
This is definitely a bug, not a feature. The law is supposed to provide stable and predictable forward guidance so that market actors can plan accordingly. The whole point of the patent system is to incentivize R&D investment, and investment is necessarily a forward looking activity. To the extent that one cannot foresee how the law will treat patents 5, 10, 20 years out, this suppresses investment, which is 180° opposite of the intent of the patent system.
I do wish to quibble slightly, however, with your remark Bob. While I can agree with you that ‘machine or transformation’ is more intelligible than the current standard, I cannot agree that ‘useful, concrete, and tangible’ was somehow “even better.” “Useful, concrete, & tangible” is really just as vague a boundary as Alice. The only difference between the two is “we don’t know the boundary, but the patentee wins” as opposed to “we don’t know the boundary, but the patentee loses.”
There is nothing about the Alice or Mayo tests that isn’t “forward looking”. Put another way, a wide open toothless 101 is not “forward looking”. It’s a disaster waiting to happen. And it did happen.
If you want a “better” test, the tell everyone exactly what that test is because there is no turning back.
FYI, you guys can have your whine fest “discussion” about the supreme courts 101 jurisprudence anywhere. You know that right?
I see nothing here from Malcolm of any substantive nature.
I see “feelings” about what a proper view of 101 would result in.
I see “ego” in the proclamation that the “Ends” reached by the court will “never change.”
I see an invitation to NOT discuss things here (in Malcolm’s litter box).
I see an invitation for others to “do the thinking” and come up with a different system.
In other words, no change at all from Malcolm’s script; no thinking at all from Malcolm; and total avoidance of any point that Malcolm “feels” to be beneath his desired Ends.
I see “feelings”
That’s your problem, “anon.” There’s just as much, if not more, substantive analysis in my comment as your handwaving (in 2017!!) about the “direct words of Congress circa 70 years ago that, on their face, make no sense at all.
I see an invitation for others to “do the thinking”
Oh, I did plenty of thinking on your behalf for literally years here. In fact, long, long before DDR was decided I suggested some sort of “improves data processing functionality” test as a moderately reasonable backstop to keep something viable while the rest of your “do it on a computer” junk gets tossed into the acid bath. And I pleaded with you guys to come up with more refined tests in that direction but — other than Ned and one commenter whose name I forget — nobody bit. On the contrary, the response was just the usual foot-stamping and insults from the “patent everything” crowd.
This is actually a rather obvious political problem for the luvvers of software patents. You can’t get your heads together to make a reasonable argument because your base is dominated by loudmouthed know-nothings who demand the world. The result is a steady weakening in support, from all sides.
As I noted downthread already, this case is a perfect example. You’re going to attack some 9-0 Supreme Court decisions that are never, ever going to be overturned with a claim that protects new rules for a standard card deck? I mean … wow.
Just one example of what I’m talking about:
We will never abdicate. We will not go quietly into the night. We fight for our constitutional rights. We will fight for our dreams. And God so help us, we shall live them!
Because freedom and patents on “new” card game rules are inseverable! It’s just like the civil rights movement, except this movement consists pretty much entirely of the same entitled rich white people who have wanted to own everything since forever! Where is the love? LOL
?
Great. You pulled a quote.
So what?
So true. I try to advise clients on 101 rejections, and all I can say is, “the Examiner isn’t wrong, and the Examiner isn’t right.” Make your best argument and move on.
“process as use” is fine, but did they foresee useful processes that were entirely composed of information? I don’t think so.
As to the hardware/software equivalence- that works against software patent lovers because each new arrangement of circuits (i.e. a program done in hardware) is not novel merely because it is different. Every variation of a basic idea does not get a patent.
You love saying the idea of software is not software. How about the clear truth that the execution of software does not deliver the utility of software- some act of use (i.e. consumption) of the processed information needs to occur. Those acts cannot fall into the “process as use” because they are not claimed.
No software patents, but lots and lots of software defendants.
Composed entirely of information…?
Sounds like you stepped backwards and moved into something that is TOTALLY in the mind.
Let me remind you: the thought of software is not software.