Abstract Idea: What is Your Evidence of Longstanding Practice?

R+L Carriers, Inc. v. Intermec Technologies Corp. (Supreme Court 2018)

In its newly filed petition, R+L asks the Supreme Court to add further depth to the abstract-idea analysis.  Namely, the the patentee asks whether Step 1 of Alice can be performed “without analyzing the requirements of the individual claim steps?” The petition also raises the important question of whether the eligibility analysis allows for any factual inquiry.

R+L’s patent No. 6,401,078 claims a self-identified business method “for transferring shipping documentation data:”

When using the business method claimed … drivers scan each customer’s shipping documents when they pick up the customer’s freight, and wirelessly transmit those documents from the truck to the terminal. Load planners then use the information from those documents, such as the freight’s destination, weight, contents and specific handling instructions, to prepare loading manifests for the freight’s further transport to its next destination.

The district court dismissed the infringement lawsuit against Intermic on summary judgment – holding that the ‘078 Patent is directed to an unpatentable abstract idea. On appeal, the Federal Circuit affirmed without opinion (R.36).

The petition’s main thrust follows:

The District Court’s decision in this case is emblematic of the results produced by the inconsistent and unpredictable application of § 101 precedent. Although the District Court concluded that the ‘078 Patent is directed to an abstract idea, it could not come up with a consistent characterization of what that abstract idea was. It variously described what it considered to be the abstract idea to which the representative claim was directed as (1) “creating an advance loading manifest”; (2) “the process of receiving transportation documentation and producing advance loading manifests therefrom”; (3) “getting shipping information to the load planners faster”; and (4) “it is even possible [that it is] … creating a loading manifest.”

The District Court’s confusion is the product of the contradictory direction by the Federal Circuit on how to determine what the claim is “directed to.” One panel said that courts should look to “capture … the ‘basic thrust’ of the Asserted Claims.” Synopsys Inc. (quoting BASCOM). Yet another panel stated that “courts ‘must be careful to avoid oversimplifying the claims’ by looking at them generally and failing to account for the specific requirements of the claims.” McRO.

Here, the District Court took the high-level approach of attempting to capture the basic thrust of the claims that the Synopsys panel endorsed. In doing so, it arrived at a characterization of the patent that could not be anything but an abstract idea. On the other hand, had the District Court viewed the claims as an ordered combination in accordance with the McRO directive, it would have seen that the patent is directed to a method that employs communication technology to transmit information about an incoming package so that outbound load planning for that package can be accomplished before the package arrives at the terminal. . . .  Since the ‘078 Patent does not merely recite a result, but rather a method with specific structure for achieving the method’s goal in a particular manner, it would have survived the eligibility challenge had the District Court followed the direction of the McRO panel rather than that of the Synopsys panel.

An incorrect characterization of what the claims are directed to has other consequences under Step 1 of the Alice test. Here, the District Court found that “preparing a loading manifest” is a conventional business practice because loading manifests existed before the application date of the ‘078 Patent. If that were an accurate characterization of the representative claim, then R+L would agree with the District Court’s conclusion. But if the District Court had taken into account the specific requirements of the claim and had avoided oversimplifying it, it would have had to find (at least on the summary judgment record before it) that the ‘078 Patent was not directed to “a fundamental economic practice long prevalent in our system of commerce[.]” While loading manifests themselves certainly existed before the ‘078 Patent, the undisputed evidence in the summary judgment record established that the particular method claimed in the patent did not.

R+L Petition.

 

102 thoughts on “Abstract Idea: What is Your Evidence of Longstanding Practice?

  1. 14

    Below, I posted:

    ….just like the Big Box of Protons, Neutrons, and Electrons…

    Outside of the “particular,” all that you have is the “magic” box and a whole lot of three simple elementary particles, of which, it is

    in particular

    a mere “law of nature” (and an ancient one at that) as to how these three elementary particles may be put together.

    The particular configurations of things…

    THAT is where the anti’s stumble.”

    .

    Today, Greg Aharonian’s email brought us a glimpse closer to that proverbial “Big Box of Protons, Neutrons, and Electrons”:

    link to sciencemag.org

  2. 13

    In Deener the method to process grain could be carried out by a human body, and yet it was not abstract (witch).

    1. 13.2

      The DC judge does not fully understand the criteria of 101 ineligibility.

      The pure idea exception of Rubber-Tip Pencil Company is not at issue.

      The natural phenomenon exception of Mayo is not at issue.

      The implicit effective calculability exception of Bilski and Alice is the issue. (Mere computerization of a pencil and paper calculation does not confer eligibility.)

      If we put on our hat for thinking in 18th century Enlightenment mode, we see each case above to be an example of the abstract or (perhaps better said) philosophical idea exception of Boulton.

      Yet R+L Carriers, Inc. truly does own something novel even if the invention fails under effective calculability. The novelty lies in timing, which is something that effective calculability does not address properly from the standpoint of patent law.

      I know that I could write an eligible claim to the invention of R+L Carriers, Inc., but I would have to be prepared to make a case before the PTAB or before the CAFC.

      Unfortunately, IANAL (I am a patent agent), and I would need to be admitted to practice in federal appellate court. For this reason, I am looking for a job at a firm, where I could read the law (New York, California, Virginia, or Vermont).

      I have worked extensively with lawyers here in Massachusetts with respect to strategy in complex IP cases and have yet to find a lawyer, who can think as well in both the 18th century and also the 21st century as I do and who could properly make the case.

      1. 13.2.1

        Joachim, re: R+L Carriers, improved means for implementing a known method should be patentable. The problem is, most claims to business methods assert novelty in the business method as opposed to the means.

        1. 13.2.1.1

          Ned, business methods have not been held to be unpatentable.

          1. 13.2.1.1.1

            R+L Carriers seems to have stumbled into pitfalls created by the Bilski judgment from the CAFC and by the Alice judgment from SCOTUS.

            [CAFC Bilski]

            The Bilski CAFC judgment states that “hedging is a longstanding commercial practice, …it is a method of organizing human activity not a ‘ truth’ about the natural world.”

            SCOTUS then qualified: “Concerns about attempts to call any form of human activity a “process” can be met by making sure the claim meets the requirements of §101.”

            The “requirements of §101” bring us to the definition in 35 USC §100.

            (b) The term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

            The above statement is undeniably the poster child for a circular definition.

            This sort of material morphed into a section of the 2015 USPTO guidance.

            “Certain Methods of Organizing Human Activity”

            The phrase “certain methods of organizing human activity” is used to describe concepts relating to interpersonal and intrapersonal activities, such as managing relationships or transactions between people, social activities, and human behavior; satisfying or avoiding a legal obligation; advertising, marketing, and sales activities or behaviors; and managing human mental activity. The 2014 IEG uses the term “certain” to qualify this category description, in order to remind examiners that (1) not all methods of organizing human activity are abstract ideas, and (2) this category description is not meant to cover human operation of machines. Like the other categories, some methods of organizing human activities can also be economic practices or “ideas.” For example, the concept of hedging claimed in Bilski was described by the Supreme Court as both a method of organizing human activity and a fundamental economic practice. As shown below, these concepts have common characteristics.

            • Several cases have found concepts relating to managing relation ships or transactions between people abstract, such as creating a contractual relationship (buySAFE), hedging (Bilski), mitigating settlement risk (Alice Corp.), processing loan information (Dealertrack), managing an insurance policy (Bancorp) , managing a game of Bingo (Planet Bingo), allowing players to purchase additional objects during a game (Gametek), and generating rule‐based tasks for processing an insurance claim (Accenture).

            • At least two cases have found concepts relating to satisfying or avoiding a legal obligation abstract, such as tax‐free investing (Fort Properties) or arbitration (In re Comiskey).

            • Several cases have found concepts relating to advertising, marketing and sales activities or behaviors abstract, such as using advertising as an exchange or currency (Ultramercial), structuring a sales force or marketing company (In re Ferguson), using an algorithm for determining the optimal number of visits by a business representative to a client (In re Maucorps), allowing players to purchase additional objects during a game (Gametek), and computing a price for the sale of a fixed income asset and generating a financial analysis output (Freddie Mac).

            • At least two cases have found concepts relating to managing human behavior abstract, such as a mental process that a neurologist should follow when testing a patient for nervous system malfunctions (In re Meyer), and meal planning (DietGoal).

            [SCOTUS Alice]

            The introduction of a computer into the claims does not alter the analysis at Mayo step two. In Benson, for example, we considered a patent that claimed an algorithm implemented on “a general-purpose digital computer.” 409 U. S., at 64. Because the algorithm was an abstract idea, see supra, at 8, the claim had to supply a “‘new and useful’” application of the idea in order to be patent eligible. 409 U. S., at 67. But the computer implementation did not supply the necessary inventive concept; the process could be “carried out in existing computers long in use.” Ibid.

            We accordingly “held that simply implementing a mathematical principle on a physical machine, namely a computer, [i]s not a patentable application of that principle.” Mayo, supra, at ___ (slip op., at 16) (citing Benson, supra, at 64).

            [Commentary]
            An Enlightenment Jurist at the start of the creation of the US and UK patent systems would probably have been initially puzzled by the phrase “concepts relating to interpersonal and intrapersonal activities” but would eventually have realized the USPTO was reasonably excluding processes like military training (transforming civilians in an army) or like schooling (transforming an uneducated child into a member of the society of educated adults) from the definition of a patent-eligible process.

            The same jurist might also have found Ford’s method of manufacturing by assembly line to be patent-eligible when Ford first introduced this method.

            Likewise today’s just-in-time manufacturing would almost certainly represent a patent-eligible improvement.

            R+L Carriers has created a “just-in-time” shipping method which organizes shipping and neither interpersonal nor intrapersonal relations.

            I would have written the independent method claim to comprise asynchronous steps of synchronous submethods executed either by humans or by machines.

            Methods of organizing machines are almost always patent-eligible (e.g. transforming a group of separate packeting switching devices into a coherent computer network).

            The R+L Carriers computers and remote devices simply become components in the shipping system just as Diehr’s computer was just another component in Diehr’s vulcanization system.

            In this way I would get around the Alice exclusion of simple computerization of a pencil-and-paper calculation.

            I might also have added a set of game claims describing the shipping process as game that the shipper wins by optimizing the shipping process and lowering his shipping cost relative to non-just-in-time shippers.

            In this way the claims would pass the Alice-Mayo test part 2 because they would encompass substantial (Kantian-sense) synthetic knowledge that would represent considerably more than effectively calculable (Kantian-sense) analytic knowledge associated with computerizing a paper-and-pencil calculation.

            1. 13.2.1.1.1.1

              Joachim, you got it. So long as the claims are directed to improved machines or a machine system, they are statutory.

              The problem is that most patent attorneys still do not get it and try to assert novelty in the business method.

              1. 13.2.1.1.1.1.1

                or a machine system

                In Alice, the Court held otherwise, Ned. I have provided to you repeatedly the fact that the Court did not have before it at issue the fact that claims satisfied the “machine system” statutory category.

                YOU are incorrect here.

                try to assert novelty in the business method

                You are DOUBLY incorrect here, as you attempt to intermingle 102 (novelty) [or rather, you attempt without using the words your “Point of Novelty”] argument AND you attempt to chase your Windmill that “business methods” per se are outside of the statutory categories.

                Not even the Court has held that.

            2. 13.2.1.1.1.2

              Joachim,

              You too remain in the weeds with your attempt to adhere to the witch-words of “associated with computerizing a paper-and-pencil calculation.”

              See:

              1. 13.2.1.1.1.2.1

                It appears that the linking mechanism no longer works.

                See: link to xkcd.com for the pun.

                1. I draft specifications, whose claims I intend

                  (1) to be allowed by an examiner and

                  (2) to be held valid by the Article III Court so that the patent owner can file a complaint when his intellectual property rights are trampled.

                  I try to understand what SCOTUS and the CAFC is telling us. I don’t try to rewrite them.

                  I have been programming computers since the middle 60s. (That statement makes me seem older than I am. I was a prodigy with computers comparable to Mozart in music.) I agree that a program capable of proving the Four Color Theorem is considerably more complex than the Diehr program that opens rubber molds, but SCOTUS has told us that a claim directed only to computerizing a pencil-and-paper calculation is not patent-eligible (Gottschalk v. Benson, 409 U.S. 63 (1972)).

                  In contrast, while Diehr’s computer does a pencil-and-paper calculation, it does considerably more. The Diehr computer opens a rubber mold at precisely the correct moment.

                  The disparity in the SCOTUS treatment of the analytic theorem prover and of the mold controller may seem unfair, but it is what it is, and I must do the best I can by my clients.

                  When I am given authority to change 35 USC §§ 100 and 101, I would make a lot of changes, but as it is, I am stuck with the statutes and with the case law.

                2. kowtowing to the broken scoreboard is an injustice to your clients.

                  Yes, I “get” that there is a pragmatic level in play.

                  But here – and especially in a forum like this – attorneys have a higher duty*** then blindly following the Court pronouncements.

                  I also “get” that you only recently became a patent agent, and thus, may be unfamiliar with that sense of duty (and may even not have that duty as an attorney would).

                  But I would aspire that you aspire for more than merely being a sheep.

                  *** With the notable exception of the state oath for attorneys for the Commonwealth of Massachusetts, state attorneys oaths place a duty to the Constitution ABOVE any fealty to any one of the three co-equal branches of the government that exist UNDER the Constitution.

                3. I find it odd that you would personify natural complexity as you do (and that you would then take that next step to categorize anything complex as “unfairly” so).

                  It is NOT up to humans to decide whether such of nature is “fair.”

      2. 13.2.2

        Sounds like you should go to law school.

        1. 13.2.2.1

          In Vermont, New York, Vermont, or California reading the law works just as well as attending a Law School.

          I found lectures extremely inefficient and painful as an undergraduate.

          1. 13.2.2.1.1

            I found lectures extremely inefficient and painful as an undergraduate.

            I can well imagine.

            Part of that problem is academia itself, where – as here in the US, academia has morphed into a “reason all its own,” a cluster of ideologies more interested in self-promotion of its own guild-like controls than in any true Enlightenment.

            This is a direct casualty of the “Liberal Left” take-over of academia in the US; a problem, by the way, dating back into the post World War II cold war efforts of communism.

            Ideology is a very real fight. Accusations of “tin-hats” are merely the a reflection of Godwin’s Law.

            link to en.wikipedia.org

  3. 12

    Meh, at one point, the ’52 Act, specifically overturned the ‘gist’ or ‘heart of the invention’ test – basically the ‘ignore the claims and erect a strawman for the claim’ in use at the 2nd Circuit by codifying 101, 102, 103 and 112 into a rule of law. Guess they forgot to ban the ‘directed to’ and ‘basic thrust’ test with the ’52 Act. This SCOTUS is an embarrassment.

    1. 12.1

      Congress did NOT forget.

      SCOTUS has seized power from the Legislative Branch and has ignored what Congress has done.

    2. 12.2

      iwathere, there is a difference between novelty and whether the invention is direct to an eligible invention in the first place.

      1. 12.2.1

        Ned,

        I invite you to reread iwasthere’s comment.

        Your reply of “there is a difference between novelty…” completely misses the mark.

        Rather typical when it comes to this topic.

        1. 12.2.1.1

          Anon, the fact that you cannot distinguish between whether the invention is new or not new, and whether the invention itself is a new or improved machine, etc. I, is not surprising to me at all. After all, new music is novel, but not within the 4 classes.

          1. 12.2.1.1.1

            You are delving into that Accuse Others Malcolm land…

            (and once again – you are missing the point presented by iwasthere)

      2. 12.2.2

        “iwathere, there is a difference between novelty and whether the invention is direct to an eligible invention in the first place.”

        Yes – no evidence required for 101 rejections. NONE.

    3. 12.3

      IWASTHERE:

      I think this is exactly right. The SCOTUS just reinvented a way to invalidate any claim at SJ.

  4. 11

    The fact that we are still dealing with the 101 question after so many years really goes to show just how much of TRIP Alice took through the Myriad of Mayo. Congress and USPTO PLEASE step in.

    1. 11.1

      Rick, the patent system is suffering from a sickness that has but a singular source: G. S. Rich. He invented nominalism, and pushed it for a very long time.

      You have to understand, and he never understood, that the invention must be directed to a new or improved machine, manufacture etc. Simply using an old machine is not an invention of a new or improved machine.

      1. 11.1.1

        a sickness that has but a singular source: G. S. Rich. He invented nominalism

        AND once again Ned ploys out his Windmill Chase and denigrate the architect of what Congress must take responsibility for….

        Shameful Ned.

        (then he doubles down with the incorrect “just use” as if software were “magic” and need not even be present)

        And his rant even gets 35 USC 100(b) wrong – “simply using” MAY in fact signify an invention.

        So Ned is wrong wrong wrong.

        As usual.

      2. 11.1.2

        The “sickness” is Benson.

        1. 11.1.2.1

          Nothing more than the Court attempting to stick its fingers into the Nose of Wax of 101, after Congress reset things with the Act of 1952.

          That the patent bar at that time did not explode with indignation and attempt to hold the Court to its proper – and limited – authority is a shame on the members of the bar at that time.

  5. 10

    I sense an impending meltdown of the “just data” that runs the comment section on this blog.

    Anyone else see connection issues starting earlier this week, now escalating into comments that appear, disappear, and then reappear?

    1. 10.1

      Another “hiccup” this morning as access to all comments went null for a spell….

  6. 9

    I have yet to meet a reputable scholar who thinks that Alice/Mayo makes any sense or that there is anyway to apply the cases fairly. Not one and I’ve met the ones and taken classes from the best.

    102 / 103 should be used if a claim is old or obvious. How can anyone say, in this case, that sending information to a second location before removing the package from the truck? That certainly does not predate the information age.

    None of the antis will respond to this. I can hook-up a general purpose computer to a machine that makes molecules. By the reasoning of the antis every molecule that is possible is anticipated by the GPC that controls the machine to make molecules.

    1. 9.1

      Again- no improvements to computers or programming techniques. Why buy a wireless device at all? Why buy a computer at all?

      They are inert until “configured” and every different use to which they are put belongs to the first person who put them to the uses for which they were made.

      If you buy a shovel, you can patent round holes, square holes, long holes, ditches, berms, and piles, so long as you were the first one to dig them.

      That sending information to a second location before removing the package from the truck? I happened to be in the logistics tech business 25 years ago, and you know how it was done then? Unloaders used this thing called the “telephone” to call the dispatch office, then a fax list was used to match backhauls and organize the pallets for LTL (less than loaded) transactions.

      If you handed us a wireless device back then, there would have been zero mystery as to what you could do with it. This patent is ridiculous and computers+ greed have made much of this patent system ridiculous.

      1. 9.1.1

        You didn’t address my question. And, again, all you have done is privately evaluated the claims and determined they should be invalidated. Maybe you are right. Maybe you are not right.

        That is not law. That is what peasants sought to move away from with the Magna Carta. Alice/Mayo is you come before the sovereign and they proclaim your fate.

        1. 9.1.1.1

          If the USPTO had not spent 20+ years spewing rivers of immoral economic weapons of mass cash destruction, and there was a civil procedure located between a $25,000 12(b)6 and a $1, 250, 000 Section 103 defense, maybe I would think differently about stretching 101.

          But I don’t. I think the statutory categories should be respected and crazy obvious “inventions” invalidated in an expanded Markman type procedure.

          1. 9.1.1.1.1

            LOL – once again, the “money means that law should be mucked up” line of pure B$.

            Translation of Marty’s rant: “Wah, my feelings are hurt as my personal experience did not have a nexus with how the law actually is.”

          2. 9.1.1.1.2

            Has your company been the object of lawsuits, Martin? Does your company file a lot of patents?

            Also, you know that the only branch of the government that used to have any credibility the OMB said that there was no troll problem and no problem with patents. We do know that many academics simply don’t want patents and have fabricated numbers.

            1. 9.1.1.1.2.1

              Sure. The term “Patent Troll” entered the common everyday vernacular because there was no problem at all.

              Naturally.

              1. 9.1.1.1.2.1.1

                You are aware (or should be) exactly how that propaganda was foisted (and who did the foisting), eh?

      2. 9.1.2

        “If you buy a shovel, you can patent round holes, square holes, long holes, ditches, berms, and piles, so long as you were the first one to dig them. ”

        Yeah. And if you buy lumber and sail cloth and build a plane with it, you can patent that.

        And if you buy chemicals and combine them in new reactions to make other chemicals you can patent the new chemicals and the new reactions to make the chemicals.

        Why is this so tough for you to wrap your head around?

        1. 9.1.2.1

          Les,

          He has a vested (and emotional) interest in NOT wrapping his head around it.

        2. 9.1.2.2

          Les because shovels are for digging holes, particularly, and lumber is not for building airplanes, particularly. Not sure why this is so difficult for you. If you can use a shovel to build an airplane, you should get a patent.

          As to the success of Patent Troll propagandists, that must be the most successful disinformation campaign in the history of the world. Or maybe it’s because a lot of people were drilled by ridiculous patent litigation. Hmmmmmmm.

          1. 9.1.2.2.1

            that must be the most successful disinformation campaign in the history of the world.

            Not even close.

            But it has been very successful. You are not even aware that you sport the Kool-Aid marks.

          2. 9.1.2.2.2

            “Les because shovels are for digging holes, particularly, and lumber is not for building airplanes, particularly. ”

            Likewise, computers are not for transferring shipping data particularly.

            Not sure why this is so difficult for you.

            Lumber is for building structures particularly. Sail cloth is for harnessing the wind particularly.

            How’d you do on the SATs?

            You want to look at every application of a computer abstractly and call it “just calculations.” But for claim elements of any non-computer related claim your happy to look at the specifics of the use. Why?

            The lumber doesn’t come out of home depot configured to fly and the computer doesn’t come out of the store configured for every eventual purpose it might be put.

            1. 9.1.2.2.2.1

              arrrgh … you’re

            2. 9.1.2.2.2.2

              ….just like the Big Box of Protons, Neutrons, and Electrons…

              Outside of the “particular,” all that you have is the “magic” box and a whole lot of three simple elementary particles, of which, it is

              in particular

              a mere “law of nature” (and an ancient one at that) as to how these three elementary particles may be put together.

              The particular configurations of things…

              THAT is where the anti’s stumble.

            3. 9.1.2.2.2.3

              Likewise, computers are not for transferring shipping data particularly. Yes they are Les. That’s why they are purchased and plugged into the wall.

              What else are they used for? Shipping data is data. The shipping part only has meaning to the people using it. That meaning has no business in the patent system, and guess what? It won’t be in the patent system for much longer.

              1. 9.1.2.2.2.3.1

                “Likewise, computers are not for transferring shipping data particularly. Yes they are Les. That’s why they are purchased and plugged into the wall. ”

                No they aren’t. Like lumber, they are purchased for lots of reasons. Often lumber is purchased for the abstract purpose of building something. Likewise, computers are often purchased for the abstract purpose of processing data.

                However, until the invention of the subject claimed subject matter, they were not configured for the precise and particular function of scanning packages as they are tossed on a truck and immediately sending that information to the home office. You can argue that the claimed method is obvious. However, methods are not abstract ideas merely because they are implemented using computers and claimed broadly. Attack breadth under 102 and 103.

                Alternatively, attack every apparatus and every composition of matter claim as merely using the sub-components for what the sub-components were meant.

                1. No Les, not every attack every apparatus and every composition of matter claim , in fact none of them. As MM notes every single day, if the apparatus or composition of matter includes novel structure, particularly claimed, a patent should issue.

                  These are “process” claims I am talking about. The computer does not change, nor does the art of programming in virtually all of these claims. All that changes is the use of the data- which the machine and instructions were designed to process. Doing clever things with logic and information is not what patents are intended for, nor were ever intended to protect.

                  Clearly you are on the wrong side of this argument, as now hundreds of cases show. I may not understand patent law, but y’all don’t either, so what of it?

                2. Marty,

                  You have no clue as to what you are talking about.

                  Software is not a process.

                  The execution of software may enact a process.

                  Maybe you want to get a different role model than Malcolm.

                3. Martin: “These are “process” claims I am talking about. The computer does not change, nor does the art of programming in virtually all of these claims. ”

                  Yes, they are process claims. But you are attacking them because the individual steps or operations (move, shift, add, multiply, rotate, jump) are inherent in the machine. The point is that the overall method is new even if the sub-components are old and come with the computer.

                  If your logic makes sense against methods, then the same logic make sense against apparatuses and drugs.

                  The sub-components of the light bulb were old. The inventor configured them in a new way and put them to a new use. The sub-components of the Wright Flyer were old. It was the configuration and use that were new. The sub-components of Crestor and Lipitor were old. It was the configuration and use that made the patent eligible.

              2. 9.1.2.2.2.3.2

                Marty continues to simply not understand patent law.

  7. 8

    the patent is directed to a method that employs communication technology to transmit information

    Where is the improvement to a machine or a traditional process?

    If there is one thing common to these petitions is that the writers of the briefs and petitions certainly have no clue whatsoever about what is important to the eligibility analysis.

    1. 8.2

      >>Where is the improvement to a machine or a traditional process?

      So, only improvements to “traditional” processes count. What nonsense. An innovation, but only if it applies to “traditional” processes, i.e., iron age processes.

    2. 8.3

      Also, Ned, your question is nonsensical. The process is obviously delivering a package. the question of “something more” or “improvement” should be a 103 argument.

      1. 8.3.1

        …because innovation and tradition are meant to be so closely tied…

    3. 8.4

      a method that employs communication technology to transmit information

      So impressive!

      You know what would make it a zillion times more awesome? A proxy server.

      LOL

    4. 8.5

      The inventors truly did improve a method of package handling and of logistics operations. I worked Navy logistics system that provided similar improvements back in the middle 80s.

      I also understand why the petitioners are so completely baffled because the logistics problem, whose solution is being improved, is completely concrete to anyone that has worked in logistics or in operations research.

      The petitioners are also completely correct that Alice Mayo Two Step analysis is inadequate to explaining why the claims are ineligible.

      The Alice Mayo test doesn’t work too well mostly because it

      (1) does not define “abstract idea”;

      (2) does not distinguish clearly between natural law and natural phenomenon;

      (3) does not clearly address effective calculability (computerization of pencil and paper calculations), Turing machines, or Church’s lambda calculus;

      (4) does not show sufficient (maybe any) awareness of distributed computer systems and distributed computerization;

      (5) does not understand that for the most part the World Wide Web of web browsers, web servers, and applications that communicate with browsers and servers functions as a huge distributed multi-computer, which can all be termed a giant metacomputer;

      (6) does not provide much of a shield to prevent the wow factor from overwhelming correct application of the test;

      (7) does not distinguish between unstandardized technology, which like Natural Language Processing (NLP) covers an immense range of implementations, and standardized technology, which like MAC Bridges are specified in minute detail in terms of structure;

      (8) does not distinguish between improving a data structure and improving a computer system; and

      (9) does not distinguish among a programmable, a program-executing device, and an hybrid of the two types of devices.

      [Such are the inadequacies that I see from the standpoint of hardware and software engineering. Specialists in the other technological arts may be able to identify other equally difficult issues.]

      If a reader can identify other problems with the Alice Mayo test, please comment because I am trying to put together a note for Linkedin on the issues.

      Anyway, I hate the phrase “abstract idea.” The phrase was not even used in the Rubber-Tip Pencil Company v. Howard, 87 U.S. 498 (1874) decision.

      But the cavity must be made smaller than the pencil and so constructed as to encompass its sides and be held thereon by the inherent elasticity of the rubber. This adds nothing to the patentable character of the invention. Everybody knew when the patent was applied for that if a solid substance was inserted into a cavity in a piece of rubber smaller than itself, the rubber would cling to it. The small opening in the piece of rubber not limited in form or shape, was not patentable, neither was the elasticity of the rubber. What, therefore, is left for this patentee but the idea that if a pencil is inserted into a cavity in a piece of rubber smaller than itself the rubber will attach itself to the pencil, and when so attached become convenient for use as an eraser?

      An idea of itself is not patentable, but a new device by which it may be made practically useful is. The idea of this patentee was a good one, but his device to give it effect, though useful, was not new. Consequently he took nothing by his patent.

      The idea of sticking a blunt end of a pencil into a rubber eraser obviously corresponds to a concrete action.

      An abstract idea is something like the wave-particle duality, the Principle of Equivalence (General Relativity), the invariance of time (an incorrect idea of classical physics), or the non-teleological nature of Darwinian evolution.

      In the Rubber-Tip case, SCOTUS simply found that the claim included no novel synthetic knowledge and was therefore completely vacuous.

      There is nothing abstract about the patent claims of R+L Carriers, Inc.. I understand why the patent owners might be upset that the Court articulates the ineligibility so badly. The patent owner is probably immensely proud of the system that the inventor created.

      Yet that system merely enters bills of lading or pictures of items shipped remotely into a computer system. Then the computer or a combination of the computer and humans generates manifests. We are looking at the computerization or semi-computerization of a pencil and paper calculation.

      As far as I can determine, while the computerization or semi-computerization of a pencil and paper calculation may be novel and non-obvious, SCOTUS holds that a claim directed to such computerization or semi-computerization is not eligible.

      I would be happier if SCOTUS were much more explicit with respect to list items (3), (4), (5), and (6) in the itemized list above, but I don’t expect SCOTUS to provide much more guidance than it has already.

      After reading US6401078B1, Bill of lading transmission and processing system for less than a load carriers, I believe that I might have been able to have provided a written description, which provided support for claims that would have been patent eligible, but I admit it might have been difficult.

      1. 8.5.1

        The inventors truly did improve a method of package handling and of logistics operations.

        Maybe they should try to claim it next time.

      2. 8.5.2

        logistics operations

        LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

        1. 8.5.2.1

          I don’t understand what is so funny. It is proverbial among the upper ranks of military personnel that generals and admirals, who don’t pay sufficient attention to logistics, lose wars.

          1. 8.5.2.1.1

            Joachim, so true. Even though my dad was a company commander in the Pacific War and would always say something about logistics, I never really understood the big picture problem of logistics until I read Thucydides history of the Peloponnesian War. The Spartan’s, unbeatable on the battlefield, simply could not defeat the Athenian’s because they had no logistics. The tied turned when the Persians began to supply them.

            One recalls the efforts of the Americans and the British to supply the Russians during World War II.

    5. 8.6

      Whats the improvement? Isn’t that obvious?

      The improvement is that as soon as you toss the box on the truck, the shipping info is scanned from the label on the box and sent to the sorting station so they can figure out what truck to put it on next. In the past, that was a manual process and had to wait for the truck to get to the sorting station and for the driver to hand a clerk a fist full of forms for the clerk to process.

  8. 7

    As an FYI, you can link to the clean copy of the filed cert petition via the SCOTUS website: link to supremecourt.gov

  9. 6

    utilizing said documentation data

    And it’s over. Lower the casket, gentle people.

    1. 6.1

      shipping documentation data

      Data is data is data.

      When you see the content of data being relied on a claim, the odds are close to 100% that the claim is pure unadulterated cr @p and it will take a good lawyer about five minutes to explain to an intelliigent judge why that’s the case.

      1. 6.1.1

        Here is a better one: A fastener is a fastener is a fastener.

        Better not try filing new patents on pedicle screws or other mechanical fasteners.

        1. 6.1.1.1

          Here is an even better one:
          protons are protons are protons,
          neutrons are neutrons are neutrons,
          electrons are electrons are electrons,

          Better not try filing new patents on any configuration of these things.

          1. 6.1.1.1.1

            Better not try filing new patents on any configuration of these things.

            That’s correct if you try to file patents to “any configuration that achieves [insert “new” function]”. You will be wasting your client’s money.

            1. 6.1.1.1.1.1

              That very much depends on the art and ALL of the options of claim form, eh Malcolm?

              Then again, you already know that – as your attempts to make one optional claim format to be something other than a mere option are well noted.

        2. 6.1.1.2

          010101000100111001
          010010010100010010
          010100010010010000

          First line is password data. Second line is baby name data. Third line is real estate data.

          Which one is the most difficult to transmit? Which one is the most difficult to receive? Which one is the most difficult to store? Which one is the most difficult to compare to a look up table?

          You’re a very serious person and a very deep thinker. Please explain your answer.

          1. 6.1.1.2.1

            The claims recited don’t even remotely resemble the false narrative you have. Have fun burning that straw.

            1. 6.1.1.2.1.1

            2. 6.1.1.2.1.2

              The claims recited

              … are exactly the sort of claims that I was telling everyone were pure cr @p ten years ago.

              Someone who files a petition this d.o.a. truly has a lot of money to flush down the twahlet. An intelligent person could do something useful with that money. Instead they give it to a patent attorney who couldn’t argue his/her way out of a p@per bag? That’s just s a d. Someone’s running a big c o n game here. How long until it comes to a sudden screeching halt? Anybody’s guess but the writing is most definitely on the wall and has been for some time. Better grab that cash fast …

          2. 6.1.1.2.2

            And also MM each line of data requires time, space, and energy to represent. And, time, space, and energy to process.

            Let’s see: 0100101010 those ones and zeros represent not to apply the brakes. 1010100110111 those one and zeros represent to apply the brakes.

            MM, your arguments are nonsensical.

            1. 6.1.1.2.2.1

              Each line of physical text also requires space, energy, and matter to represent, and yet “A process of creating a document comprising: writing symbols on a piece of paper, wherein said symbols comprise text that define instructions to put together a TV” would never pass 101.

              1. 6.1.1.2.2.1.1

                wherein said symbols comprise text that define instructions

                Strawman much?

                Maybe you should check out the Hricik side of the blog (or this side, since I posted the item on both) for the easy to understand Set Theory explication of the exceptions to the judicial doctrine of printed matter, and your rather silly post here is – and has been – taken care of by that explication.

              2. 6.1.1.2.2.1.2

                A process of human performing the processing of processing grain would also under current law fail 101.

                The case law becomes bizarre when a human is added.

      2. 6.1.2

        Data is data is data.

        Unless, of course, it is functionally related….

        Have you tried to reinstall your operating system with your Britney Spears CD?

      3. 6.1.3

        >>Data is data is data.

        Then why do you bother to type out words MM? You have never addressed what I am saying to you.

        Documents are documents are documents. So, why not just submit random words in an appeal brief?

        1. 6.1.3.1

          If your inventive step depends on the properties of words written in your document, then you have no invention.

          “An appeal brief comprising text, where the text includes at least 10 adjectives that are three syllables or more.” is not patent eligible. Neither is “wherein the text includes information related to a customer”, neither is “wherein the text includes information related to transportation of a shipping container”.

          1. 6.1.3.1.1

            A tip to the newbie (evidently a Slashdot anti-software person who has lost his way):

            ALL patents have “inventive steps” (how Euro) that depend on the properties of words written in your document.

            That is ALL that the patent document has: words.

  10. 5

    From the petition: Here, the District Court took the high-level approach of attempting to capture the basic thrust of the claims

    Because the claims are super detailed with tons of objective structural limitations distinguishing the subject matter from the prior art! Right.

    Here’s the deal folks: when you claim at a “high level” (e.g., using functional language and basic logic as “limitations”) you get the “high level” approach you deserve. You want more “detailed” analysis? Put the details in your claims.

    And “detail” doesn’t mean scrivening with four syllable words hij@cked from another logic context. It means reciting objective structure, in objective structural terms.

    Otherwise you’re “method” is just using old logic in some old context “on a computer.” That’s the quintessential “essence” (LOL) of a g@ rbage patent claim.

    1. 5.1

      1. A method of synthesizing a 1-(acyloxy)-alkyl compound of Formula (II), comprising contacting a compound of Formula (I) with an anhydrous oxidant,

      with the rest of the claim just reciting different compounds that meet Formulas I and II…

      link to patents.google.com

      Contacting compounds is old. Nothing new here but the work pieces. Nothing new but the data…. and yet the result is new. Why should one be eligible and the other not?

      1. 5.1.1

        Les, you should stay on the path. The answer may be that it should be invalidated under 102 or 103, but just a judge waving his/her hands and saying, gee I don’t think that there is an invention is not law.

        Alice/Mayo is like we are peasants going before a king/queen to rule.

        1. 5.1.1.1

          Do you think I have strayed from the path? My point is that of coarse the chemical method claim is valid and that its form is similar to many other method claims. If the form is eligible when making chemicals it should also be eligible when making package handling more efficient.

          1. 5.1.1.1.1

            errr course….

    2. 5.2

      Because the claims are super detailed with tons of objective structural limitations distinguishing…

      Yet again, with the fallacy of an optional claim format somehow being more than merely optional…

  11. 4

    Ya had me right up to the point I read the actual claim:

    1. A method for transferring shipping documentation data for a package from a transporting vehicle to a remote processing center:
    placing a package on the transporting vehicle;
    using a portable document scanner to scan an image of the documentation data for the package, said image including shipping details of the package;
    providing a portable image processor capable of wirelessly transferring the image from the transporting vehicle;
    wirelessly sending the image to a remote processing center;
    receiving the image at said remote processing center; and
    prior to the package being removed from the transporting vehicle, utilizing said documentation data at said remote processing center to prepare a loading manifest which includes said package for further transport of the package on another transporting vehicle.

    Great argument fellas. I just wish it was in regard to a better claim.

    link to patents.google.com

    1. 4.1

      “But our logic is performed remotely, your honor!”

      My goodness but it’s time to grow up already.

      1. 4.1.1

        time to grow up already.

        Says the least grown up person posting on these boards…

        Stultifying.

      2. 4.1.2

        …One of ordinary skill IN THE ART of package handling….

    2. 4.2

      The “procedural” arguments (an administrative agency limited by its stature under the APA and NOT being an Article III Court having to actually base its decisions on solid facts is a rather important legal point to make (regardless of the strength of the claims).

  12. 3

    Dennis: The petition also raises the important question of whether the eligibility analysis allows for any factual inquiry.

    Of course the analysis allows for “factual inquiry.”

    What facts were in dispute here? Answer: none of them.

  13. 2

    While loading manifests themselves certainly existed before the ‘078 Patent, the undisputed evidence in the summary judgment record established that the particular method claimed in the patent did not.

    LOL

    You really do have to try incredibly hard to miss the point this badly.

    What an incredible amount of money was wasted by these patentees. Nothing better to spend it on? Really? That’s disgusting, frankly.

  14. 1

    From the petition: The District Court’s decision in this case is emblematic of the results produced by the inconsistent and unpredictable application of § 101 precedent.

    There was absolutely nothing unpredictable or inconsistent about this decision.

    The petulant dust-kicking by the patentee was predictable, by the way.

    It is very nice to see the absurdity and uselessness of the McRo “analysis” highlighted for everyone, though! Well done, patentees! LOL

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