Revival of Parker v. Flook II

In 2012 I wrote a short essay on what I called “The Revival of Parker v. Flook” and included the following chart of court citations to the much maligned 1978 decision.

The Revival of Parker v. Flook

For patentees, the most difficult aspect of the decision is its focus on an “inventive concept” that is separate from any abstract idea. The court explained that “the discovery of such a [natural phenomenon or mathematical formula] cannot support a patent unless there is some other inventive concept in its application.”  The Flook decision is closely aligned with Alice and Mayo. The difference is that Alice and Mayo are being followed by lower courts, while Flook was essentially rejected by the Federal Circuit who instead followed a broad interpretation of Diehr and Chakrabarty.

The chart below provides a five-year update.

CitationsToFlook

Image result for 1978 fashion

166 thoughts on “Revival of Parker v. Flook II

  1. In response to Ned’s nonsense below:

    Ned, a mathematician invents a new chair on the blackboard explaining with static equations why it is better than old chairs. Has he invented a chair?

    The “new algorithm” is a method for processing information. That is what it is. What in the world do you think your brain is?

    So, of course, he has invented a new machine once the machine is built (either in software or hardware) with the new algorithm.

    What is the matter with you? Why do you think that processing information is different than say the grain in Deener? It is not. The same physical laws are at work. It takes time, space, and energy to process the information (represented information). It takes space, time, and energy to represent the information to process.

    Same thing as the grain.

    And, in Deener, if a mathematician wrote down the method to process grain in Deener, did he/she invent a machine? Well, yes, if they build a machine to perform the process.

    1. What people are not (purposefully) grasping is that every patent – ALL patents – are nothing more than “words on paper.”

      Even patents that have claims solely written in “objective physical structure.”
      Even patents in the “biochem” area.
      Even patents in the “biochem” area with claims solely written in “objective physical structure.”

      Basics are being purposefully ignored and obfuscated by the sAmeones here.

      Another day at the “O” – nothing more.

      1. I know it is ridiculous anon. I think the more ignorant the judges Obama appointed the easier it is for the antis to get away with this stuff.

        1. the judges Obama appointed

          So very serious! “anon”‘s bff, working his magic and totally not tr 0llin’ on behalf of the least credible attorneys who ever walked the earth.

      2. ALL patents – are nothing more than “words on paper.”

        Deep deep stuff here.

        1. It’s the (mindless) poker tells of “deep” and “serious” Malcolm (who cannot be bothered to come up with anything remotely “deep” or “serious” for a counter point).

    2. Night, if I understand it right, your “new” chair is more correctly described as a new way of designing a chair, new in that it uses the math on the blackboard.

      A claim that confines the scope to any newness in chair, as such, as a manufacture, is not what you want. Once you have performed your new design process, the manufacture of your “new” chair, and the chair itself, would be conventional, I suppose. You want exclusive rights to assert against all those who use your new math, even to make a conventional chair in a conventional way, right?.

      In an EPO characterized by claim then, your invention is a method of designing a chair, characterized by the use of (insert the mathematical equations here).

      Or have I misunderstood?

      1. Max, I said the static equations illustrate that the chair is better.

        So, the blackboard description is a schematic of the chair that includes static equations that could be used in the claim.

        (Actually, vacuum cleaners are often designed with equations.)

        1. So? Can you give me an example of an issued US patent with a claim to such an equationed vacuum cleaner?

          1. Not easily without showing you one that I prosecuted. And, then —gasp–you’d know who I am.

          2. I am also getting the feeling we have moved into the distraction stage. I’d like to see you actually address the points of my post.

          3. Max –

            I googled vacuum cleaner equation and this was the second item from the results that I looked at. See, for example, claim 2.

            link to patents.google.com

            The first item I looked at had equations in the spec, but not in the claims.

            1. Thanks Les. Yes, vacuum cleaners regularly have equations.

                1. Please Pardon the Potential (re)Post:

                  0 h – N 0 e s
                  BFFs and what not

                  (in the best Malcolm mindless ad hominem tones)

    3. It takes space, time, and energy to represent the information to process.

      Does real estate information take up more or less space than grandma’s most watched video information?

      For example, consider 32 versus 23. Which takes up more space?

      1. perhaps salvaged:

        Your comment is awaiting moderation.

        January 8, 2018 at 7:00 am

        “Which takes up more space?”

        That’s not the right question – and only shows that you are not “getting” the context of the Night Writer view.

        It is NOT an issue (necessarily) of which takes up more space, as the processing method may dictate which takes up more space (as well as other metadata concerns).

        The point being though, that space IS taken up for both – as well as time and energy for the representing process.

        Maybe if you were not so intent on your ad hominem, you might actually understand the point being presented.

  2. 101 is very easy to understand. Just look at structure.

    All the anti arguments below amount to some characterization of structure that contributes to the functions of a machine as not being eligible ’cause it is part of some category in the human brain.

    And, a new math formula is bad? So, that is like saying well they said there was only a new gear structure or only a new molecule.

    All your games are the same. You take a structure of a machine and say it is not patent eligible because it is a witch (or whatever category you assign it to).

    1. Seriously Night, please stop saying nonsense like this. Math itself is not a process within 101 because it does not make a new machine, manufacture or composition. It merely produces a number. (The Flook process produced only a number.)

      Math, however, is useful to improve existing machines and processes but it must be claimed in that context. Both Diehr and Alappat are examples.

      It is that simple.

      You might want to try reading Flook slowly, from front cover to the back page. A lot of the controversy that has taken place over the last 30 to 40 years can be seen as a result of the C.C.P.A. and the Federal Circuit disagreeing with the Supreme Court in Flook. It is clear that they sought to mischaracterize the case by arguing it was one of dissection (considering only the novel subject matter) when it was not. Indeed, some of the loudest shouters in this thread (wake-up Greg) is soon the characterization by the Federal Circuit is a correct characterization.

      One of the reasons that case is correct is that it relied on Morse which itself relied on Neilson v. Hartford, the English case that approve the patenting of the hot air blast furnace because the inventor had gone beyond merely stating the principle involved but called for a new machine – placing a heated box between the bellows and the furnace whereby the air might be heated. As explained in Flook, the patent cannot be on the unpatentable subject matter but only on an “inventive” application. Reading between the lines, that inventive application itself must be some improvement in machines, manufactures and compositions and processes related thereto.

      1. >>Math itself is not a process within 101 because it does not make a new machine, manufacture or composition. It merely produces a number. (The Flook process produced only a number.)

        See the game? Label structure of a machine as “math” and then declare it as ineligible. It’s a witch!

        1. The only thing being labeled “math” is the math.

          And yes we all do see your game, NW.

          1. Software is not math.
            Business methods are not math.

            The “game” as you put it, is not only seen of Night Writer, but of you, Ned, and anyone else who is anti-patent.

            1. Software is not math.
              Business methods are not math.

              Either is pumpkin pie, pumpkin.

              Do you have a point? I didn’t think so.

              Just keep polishing Big Jeans b u tt0ns, “anon.” It’s what you do best. You’re his Steven Miller and he luvs you and your dim lifeless eyes.

              1. Do you have a point? I didn’t think so.

                Clench tight those eyes so that you can continue to pretend that you are doing something other than purposefully conflating and misrepresenting patent law, Malcolm.

                And what is you 0bsess10n with Quinn? He has nothing to do with this blog, this post, or this comment thread. You cannot seem to not think about him in your every waking moment… ( ? ? )

            2. anyone else who is anti-patent.

              My gob but you’re a p@ thetic little dweeb. When you jack yourself off on a patent do you take a picture of it and hang it on your wall next to your Luke Skywalker poster?

              1. Stay classy, Dan Diego.

                (as if typical, this does not apply to the single biggest blight on these boards: Malcolm)

              2. MM is so old and out of touch that he doesn’t even know that dweebs are jettisoning star wars because his “muh social justice warrior rawr” can fangirl out over it.

            3. Software is not math.

              Software is logic and ineligible for patenting as a result.

              Business methods are not math.

              “Business methods” (so-called) are ineligible for patenting unless they recite a new machine in objective structural terms or result in a detectable physical change in matter previously undescribed as being the result of the recited steps.

              Basic stuff. If you advise your clients otherwise, you’re basically just stealing their money. And that is your game, “anon.” It’s the game you and your cohorts love to play because, well, you’re not terribly proficient at anything else.

              1. Software is logic and ineligible for patenting as a result.

                Eminently wrong. You do not understand what software is if you really believe that.

                I have tried to make this simple for you with the reply question of “how is your copyright effort on logic coming along?”.

                Since it is well recognized that one can obtain copyright on an aspect of software while one cannot obtain copyright on logic, the difference between the two is not “deep,” and yet is “serious” enough to be real.

                As to: ““Business methods” (so-called) are ineligible for patenting unless they recite a new machine in objective structural terms or result in a detectable physical change in matter previously undescribed as being the result of the recited steps.

                Again, you are eminently wrong.

                You state the “Machine (in the optional claim format) or Transformation” clue as if that “clue” were more than a clue, and the option as being a requirement.

                Basic stuff. If you advise your clients otherwise, you’re basically just stealing their money

                Basically you are wrong on all planks of your comment here, so your conclusion is baseless and simply in error.

                And that is your game

                The “game” here is all of the trying to clench tight eyes and not see that the scoreboard is broken. The “cohorts” plying their “feelings” and “philosophical ends” while ignoring the means chosen to get to those ends are the ones deserving contempt and derision here.

        2. Night, a mathematician invents a new algorithm on the blackboard at school. Has he invented a new machine?

          1. Ned, a mathematician invents a new chair on the blackboard explaining with static equations why it is better than old chairs. Has he invented a chair?

            The “new algorithm” is a method for processing information. That is what it is. What in the world do you think your brain is?

            So, of course, he has invented a new machine once the machine is built (either in software or hardware) with the new algorithm.

            What is the matter with you? Why do you think that processing information is different than say the grain in Deener? It is not. The same physical laws are at work. It takes time, space, and energy to process the information (represented information). It takes space, time, and energy to represent the information to process.

            Same thing as the grain.

            And, in Deener, if a mathematician wrote down the method to process grain in Deener, did he/she invent a machine? Well, yes, if they build a machine to perform the process.

          2. Night, a mathematician invents a new algorithm on the blackboard at school. Has he invented a new machine?

            The continued DIShonesty with this type of posting is remarkable.

            Ned,

            Show me one single machine – no matter how described in a patent that is different than the machine on that blackboard.

            One.

            Of course, you will not because you cannot. EVERY machine (no matter how described) in a patent is just “words on a paper.”

            Every
            Last
            One

            Stop your dishonesty.

            1. But anon, math does nothing but produce numbers in the mind.

              1. And what exactly is a computer Ned? Both a computer and an information process are machines.

                Your argument Ned is that part of a machine can be represented as something a human brain calls math and because it can be represented as math by a human brain that it should not be eligible for patentability.

                That is your argument.

                1. What we have here is the attempted Zombification of a re-animated Mental Steps doctrine, but with one critical flaw: machines do NOT think*** (and “proxy,” as Malcolm would advance, is NOT a block to patent eligibility).

                  Which is why I have to continue to wonder (but not really ) why the academics do not set the record straight by showcasing just how the original doctrine arose (and expired).

                  *** and yes, this does bring about the opportunity for me to share one of my favorite words: anthropomorphication!

        3. Who said processes had to make items from the other eligible categories?

          1. Who said processes had to make items from the other eligible categories?

            You mean, beside Ned (and in contradiction to what Congress actually state)…?

      2. One of the reasons that [Flook] is correct is that it relied on Morse which itself relied on Neilson v. Hartford…

        Two responses:

        (1) I thought that we both agreed that Morse was not really about subject matter eligibility, but was rather better understood as a written description case? Have you changed your mind on that point, or am I just misremembering?

        (2) I suppose that there is a sense in which a case can be said to be “correct” merely because it applies a prior precedent in a manner faithful to the intent and outlook of that earlier precedent. In patent law, however, that is a fairly weak sense in which to call a decision “correct.” Patent law has a fairly straightforward teleology—patents exist to encourage discovery, disclosure, and commercialization. The better sense, therefore, in which a case might be said to be “correct” stands where it can be shown that the decision furthers one or more of the ends that patent law exists to advance.

        Merely noting that Flook is—along some dimension or other—consistent with Morse or Neilson does not really get at this more important aspect of fundamental consistency with the ends that patents must serve if they are to have any value. As I show in 10.3 below, Flook did not serve those ends at all well (as can be seen in the PTO’s reliance on Flook in their Diehr appeal).

        Justice Stevens may well have reached the correct conclusion in Flook, but he got their by an abysmally poor line of reasoning, which, had it been allowed to stand, would have served the nation very poorly. Mercifully, the Court corrected Flook‘s errors in Diehr. Regrettably, the Court was unwilling to own in Diehr that this is what they were doing.

        1. Greg, ultimately one must claim an invention that is a new or improved “manufacture.” The problem with claiming a principle an abstract, even if it is directed to subject matter that is otherwise statutory, is that it does not actually set forth an invention of a new or improved manufacture.

          With nonstatutory subject matter such as mathematics and the like, they too are like principles in the abstract in that they are nonstatutory subject matter; but like principles an abstract they too can be applied to improve basic machines and processes. That is how Morse and Neilson provide guidance here.

          But Flook was special because introduced the concept that one had to discern first what the novel features of the claim were before one left the 101 analysis, otherwise, as observed by Stevens, one can include in the claim nominal subject matter that was statutory but that was not really part of the invention being neither new nor improved.

          Flook was careful also to say that inclusion of unpatentable subject matter in the claim was not a per se violation because there could be invention in the otherwise statutory parts of the claim and the non-statutory part could be applied in inventive application – giving examples such as the Eibel process case. The search was for inventive application of the principal – of the nonstatutory subject matter.

          If you take a look at the Neilson case, there is a difference between enablement and claiming in inventive application. There is a good argument that the Neilson specification did not enable the full scope of the claimed invention because the heated box would not actually work efficiently. But what saved it from being a claim in the abstract was that that the inventor did specify a means for carrying out the invention, the heated box between the bellows and the furnace, and claimed it.

          The Morse claim also specified nothing of the inventive means or processes that were disclosed. Morse merely claimed a result. Such claims can be viewed as overbroad, but they are also not claiming an invention that is a new or improved manufacture.

          Of course by manufacture, I mean manufacture in the sense of the Statute of Monopolies and of 101 that includes methods of making manufactures, and machine processes that provide for an improved machine.

          1. ultimately one must claim an invention that is a new or improved “manufacture.”

            WRONG – that is NOT US law, Ned.

      3. Ned, “the math” you talk about is certainly a process and determines a machine to perform the process.

        The math is just like an improved gear combination. It is a component to a machine/process.

        How we know that you are the one that is full of nonsense is that an actual machine has the silicon or software to perform “the math” so it has a physical embodiment.

        1. Night, if you have not been listening to me I will say this again: software can improve a machine or an otherwise statutory process.

          However, simply reciting that a mathematical algorithm be calculated on a generic computer without more is insufficient for eligibility purposes because the generic computer is not improved.

          On this particular point, the result in Alice was a foregone conclusion.

              1. Marty,

                I am not cure why you are responding to a “software is not math” comment with a utility (or right type of utility) comment.

                Maybe because you cannot be bothered to get the nature of software right (even though that appears to be your livelihood).

          1. That goodness you are not correct. Turns out your don’t even need the computer:

            A method comprising:
            obtaining sinusoidal signals comprising components of a first time-domain signal;
            shifting phases of the sinusoidal signals by amounts corresponding to a specified time-shift to produce phase-shifted signals, wherein shifting the phases is performed to more closely align an envelope of the first time-domain signal with an envelope of a second time-domain signal, and wherein the second time-domain signal comprises a variable power signal; and
            converting the phase-shifted signals to time domain signals having the specified time-shift;
            wherein the sinusoidal signals comprise a first harmonic and additional harmonics, each additional harmonic corresponding to an integer times a frequency of the first harmonic; and
            wherein, for each additional harmonic, a phase-shift corresponds to a phase-shift of the first harmonic times the integer.

            link to patents.google.com

  3. Ben: rather than B0(1-F)+PVL(F)+K”, most applicants want, and do not deserve, “determining an updated alarm limit based on a process variable”.

    Here’s the question: when does an ineligible and abstract “process variable” turn into a sufficiently “structural” (and therefore eligible) mathematical formula?

    And how are these non-structural “structures” evaluated against each other in the context of 102/103? For example, is the “structure” of “X/2” different from the “structure” of “Y/2” or “Y/2.000001”? Why or why not? What about B0(1-F)+PVL(F)+K? Is that “structurally” distinct from “B0(1-F)+PVL(F)+X(K)”? Why or why not? Who gets to decide and what tools do they use? Where is the database of “algorithmic structure”?

    A reasonable person who takes the maximalists at face value would assume that the maximalists would be hard at work figuring this stuff out because they’re all about “patent quality”. But reasonable people know better. The miserable failure of the maximalists to even propose, much less implement, anything remotely workable over a time period of 20+ years is all you need to know about their super serious “concerns” about “patent quality.”

    1. “Here’s the question: when does an ineligible and abstract “process variable” turn into a sufficiently “structural” (and therefore eligible) mathematical formula?”

      I don’t know. That doesn’t mean a reasonable standard couldn’t or shouldn’t be developed. The patent system should encourage the person who invents an O(n) fourier transform algorithm to disclose their technique rather than hiding it as a trade secret on their backend servers.

      1. The patent system should encourage the person who invents an O(n) fourier transform algorithm to disclose their technique rather than hiding it as a trade secret

        LOL

        Like those are the only two options.

        Your kind of thinking is a big part of the problem. Like Super Serious Kevin N00nan and his scary stories about the cure for childhood cancer that will never ever happen unless we patent correlations. Give us a break already.

        I don’t know. That doesn’t mean a reasonable standard couldn’t … be developed.

        How long do we need to wait for this “reasonable standard” and how much grift and systemic collapse do we tolerate until then?

    2. Is the structure or mix chemical A with chemical B to get chemical C different than mix chemical D with chemical E to get chemical F?

      Or are you saying that methods for making new chemicals should not be patent eligible either?

      1. “Is the structure or mix chemical A with chemical B to get chemical C different than mix chemical D with chemical E to get chemical F?”

        That’s not really analogous to his question.

        But then again, I think it’s a silly question.

        “X/2” vs “Y/2” depends on the context of the claim. It could be a non-distinction, like “1 inch gear” vs. “2.54 cm gear”. It could be a obvious variation, like two distinct but equivalent gear trains. Or it could be be a non-obvious difference. It would be evaluated in the same way as any other claim element.

        1. It would be evaluated in the same way as any other claim element.

          Does “magnesium” depend on the “context of the claim”?

          Does “circular” depend on the “context of the claim”?

          etc

          The correct answer is “No, unless you want to wade deep into the metaphysical swamp where ‘arguably’ everything and nothing are equal.”

          When you talk about the “structure” of a mathematical equation you’re talking about “structures” that aren’t “structural” at all. They’re more like sentences but even more abstract. They’re pictographic representations of relationships between symbols.

          It’s difficult enough to deal with claim construction and the like when we’re talking about structures that are objectively physical and describable in those terms. Now you want to introduce a huge class of abstractions into the system? Guess what’s going to happen. Oh wait! We don’t have to guess. We know what’s going to happen: the system melts down and “inventing” turns into the lowest common denominator, i.e., pure scrivening. That’s because there is literally nothing easier than innovating an abstraction or new information or “new” logic (where “new” logic is old logic in a “new” context, i.e., old logic described using words that haven’t been used before).

          It’s weird that this even needs to be explained, here of all places. Normal people don’t have trouble with this. Certain patent lawyers do and its because many of them can not get the kool-aid out of their system.

          The world and scientific progress really does not revolve around us or our clients and we should be grateful for that. Also just because you’re rich and know how to program a computer doesn’t mean that you know what you’re talking about when it comes to other subjects and it doesn’t mean that anybody needs to pay attention to you. That’s not directed at you, Ben. It’s definitely directed at these smug Silly Con Valley cl0 wns (young and old) who I run into and who really are about as shallow, dull and uninteresting as a human can get.

          1. Ben and MM, I want to zoom in on Ben’s word “non-obvious” and talk about context.

            Lots of times, human creativity comes up with something “non-obvious”. The punch line of a good new joke, for example.

            But not everything that is “non-obvious” renders claimed subject matter patentable.

            As the Patents Clause says, the context is the “useful arts”, and their practitioners. As Ned points out, it all goes back the “manner of new manufacture” of the English Statute of Monopolies.

            What is or is not obvious in the context of practising accountancy, the law, logic/math or joke-writing is not relevant to patentability, and it is not serving the interests of the law, or our profession as officers of the court, to pretend that it is. It is dangerous to bring the patent system into disrepute with the public.

            1. You check out the “bringing disrepute above by your “cohort.”

            2. I will now reveal myself as fervently pro-patent. Patents really do promote progress in the useful arts and so make the economy richer. I’m all in favour of them.

              All those new, useful and non-obvious utterances of accountants, joke-writers, logicians, philosophers and mathematicians; however commendable they might be, however much they enrich our society, they are not progress steps within the useful arts and so ought not to be rewarded under the patent statute.

              As the EPO has found out over the last 40 years, the simplest and most effective way to prevent zealous advocates nudging patent rights beyond the useful arts is to use the obviousness filter, requiring as a condition of patentability an inventive step (ie “progress”) that is to be found within the territory of the useful arts. In other words, technical features in combination solving a technical problem in a non-obvious way.

              To grant patents for progress outside the useful arts is un-Constitutional. Not only that, it impedes (with restraints on trade) useful economic activity, competition and growth. Not only that, it brings the patent system into disrepute. All this harms the economy, and so will damage the general welfare. The consequence of that will be a legislative (and perhaps also a judicial) backlash against the patent system. Now nobody here wants that, do they?

              1. Several time snow you have pretended that the EPO deals with “Useful Arts.”

                We both know why that is.

                Twice now, you have attempted to slip by “accountants” and the like.

                YOU are not talking about “Useful Arts” as you use that term.

                Instead, you are talking about what you are familiar with – some notion of “technical arts.”

                The US Sovereign has chosen differently, MaxDrei.

                Please have the respect for our Sovereign’s different choice.

          2. “shallow, dull and uninteresting as a human can get.”

            Another way for a leftist to say that the person being spoken about has 0 victim points.

  4. Fashion trends do change. But history will show that the trend of patenting logic and information was less like 70s fashion trends and more like a moment in time when a certain portion of the patent community thought it was fashionable to wear giant diapers and never change them.

  5. I, for one, enjoy the super-high waistband.

    I don’t enjoy the same old problem on this site that once a good discussion gets going, and points are made,they are all lost to the next thread, so we have to start all over again.

    So my question for the brain trust, stipulating (where we last left it) that information was patent eligible as a manufacture and information processing as a process:

    What, if any, limitations should there be on patenting new and useful information, or improvements of existing information?

    1. I do not think that your restatement here accurately reflects “where we last left it.”

      As I noted on the other thread, the notion of “information” in Night Writer’s “information processing” is at a more subtle point than the “common take” being made as to “information.” See especially the clarification to MaxDrei and his lovely reference to Magritte.

      1. yea well how about explaining at least the outlines of the “subtle point”?

        PS, “subtle points” and major public policy are not happy handmaidens.

        1. perhaps salvaged:

          Your comment is awaiting moderation.

          January 5, 2018 at 7:44 am

          Marty,

          You cannot even understand the nature of software (which your livelihood is connected with), and you want me to hold your hand at a higher level physics/meta-physics discussion?

          Apply yourself first to the basics and get those right. Let me see that you actually understand that which you want to climb atop a soapbox and pontificate upon.

      2. “information” <— in quotes, LOL

        Notice the effort to make sure that nobody can discern what "anon" considers to be the subject matter of the discussion. That way "anon" can move his goalpost freely. Very clever!

        the notion of “information” in Night Writer’s “information processing” is at a more subtle point than the “common take” being made as to “information.”

        Yummy word salad.

        1. Says the guy who MOST moved goalposts….

          Stultifying.

    2. What, if any, limitations should there be on patenting new and useful information, or improvements of existing information?

      An absolute bar, without exceptions.

      In other words, the common sense solution to a problem that was created by chucking common sense into the t 0 i let.

      1. That’s my first choice too MM.

        But if that’s not tenable because just too many people believe in the magic of computers, then what?

        1. It is precisely because computers are NOT magic that makes “your side” untenable.

        2. if that’s not tenable because just too many people believe in the magic of computers, then what

          Not sure why anyone should bother answering this question. The number of people who believe that you should be able to protect information (or protect information in certain pre-existing structural/material contexts) using the patent system is miniscule.

          Sure, they have big mouths. Sure, they’re rich white d @ ddy GOP types who think they’re The Most Important People Ever. Sure, they never stop crying over their entitlements and they never will. That doesn’t matter.

          What matters is that there is no way that the Supreme Court is going to ever say that you can protect information (e.g., a correlation) with a patent unless you put a gag in the mouth of the attorney representing the public interest and the First Amendment.

          It’s a house of cards and the foundation is made of vapor. It’s going to collapse and it will do so lickety split POOF. It’s just a matter of time.

          1. The number may be miniscule, but apparently includes a half dozen CAFC judges and any number of district court judges.

            1. I think though that MM is being too narrow in what he is stating as his belief as he is limiting his comments down strictly to the use of the patent system for said “protecting”. Those half-dozen CAFC judges and any number of district court judges often simply believe that unless they can find a reason to disallow X from the system then it is entitled, regardless of what X is. A very legalistic viewpoint, and a direct result of the system being an entitlement system. Or on the other hand, a few of them think there needs be some manner of protecting “information” (aka software etc.) and that the patent system is the only thing that’ll do that, so they figure meh whatev, do it by patents.

    3. For whatever little my 2¢ are worth, information per se is not patentable and ought not to be patentable. No patent system in the world has ever allowed a patent on pure information (copyright maybe, but not patent), and rightly so. It would be an insupportable intrusion on personal liberty to enforce such a patent (“your thinking these thoughts infringes my patent!”)

      1. Greg every method implemented in software is information per se, what else could it possibly be? The hilarious notion that software=hardware notwithstanding. I don’t think you could implement Google in hardware, but maybe someone could describe how that might work….

        1. Come now. There is literally no statement whose truth cannot be established by resort to philosophical nominalism, but it is a hollow victory to carry your point in that manner.

          As I said elsewhere, any definition of “material” that has been so stretched as to reach information per se is a bald idiosyncracy. Any definition of “information per se,” however, that is so stretched as to reach Google is just as bald an idiosyncracy.

          No one uses the word “information” to describe Google. No one tells Google to their neighbor. No one learns Google. No one does Google in their heads. Google provides information, but Google is not—itself—“information.”

          1. Greg if I have a server and the basic code to run Google, I have Google. That basic code is 100% information. What else could it be?

            If I use the exact same server, but instead I have the basic code to run Bing, I now have Bing, which is also 100% information.

            The differences in method, design, philosophy etc. between Google and Bing are entirely expressed as differences between sets of information.

            All of that information is 100% abstract in the vernacular – no tangible existence or mechanical or chemical structure. Per the judicial exception to the printed matter doctrine, the information does nothing to modify or interact with the substrate.

            per anon, lets instead call all of it a manufacture. How do we practically, reliably, and equitably parse other sets of new, useful information into temporary monopolies that only protected parties may make, use, or sell that information?

            Impossible. Insane. Unworkable. Not promoting progress in the useful arts.

        2. Greg every method implemented in software is information per se, what else could it possibly be?

          How about a manufacture?

          Specifically, a manufacture directly – and solely – a manufacture that is created to be a machine component.

          And yes, one should bite that the patent law deals with “machines” and does not call out any “special heightened treatment” for a machine to get also happens to be a computing machine.

          Machines simply include within the ambit of that category “computing machines.” There is zero legal rational basis for having anything else in the law as written.

          You may “feel” or “want” differently. And those “feelings” and “wants” may come from any number of “philosophical” viewpoints; but it should be clear that any meaningful And inte11ectually honest dialogue gets the foundation correct.

    4. A patent on information? What does that mean? That only the patent owner or licensee could make, use, sell or import the information?

      Well, the information is in the published patent, so what would it mean to “make” the information? Similarly, why would you need to import it? Further, who would buy it when they could just read the patent.

      So, the only reasonable way to infringe such a patent would be to use the information.

      So, as an example, say the information is that E = mCC.

      Yeah, I have no problem with Al being able to sue anyone who uses that information without his permission for 20 years after he files his application. Why would that be a problem? Without Al, it wouldn’t be known as so no one could use it anyway. Even if someone else would have discovered it a year or two later, we want to encourage progress, so work harder next time and beat Al to the discovery.

      1. Yeah, I have no problem with Al being able to sue anyone who uses that information without his permission for 20 years after he files his application.

        Utterly hopeless. Will never, ever, ever, ever happen.

          1. What counter-argument is needed? No reasonable person thinks the Theory of Relativity could, or should be patented. Ever.

            Once you go down that road, all human effort would be subject to government license.

            1. Why is it OK to require a license on say, the internal combustion engine, but not a method for calculating the energy equivalent of a mass?

  6. Parker v. Flook is perhaps best understood as flowing from the Court’s assumption: “We also assume, since respondent does not challenge the examiner’s finding, that the formula is the only novel feature of respondent’s method.” Parker v. Flook, 437 U.S. 584, 588 (1978).

    If you start from that assumption, the result makes a lot more sense. Maybe it’s still not ideal, but I’m not sure how many would want to adopt the position that a conventional method updated to use a new math formula should be patent eligible.

    1. I’m not sure how many would want to adopt the position that a conventional method updated to use a new math formula should be patent eligible.

      I’ll take a guess: about 50 people, and of those 50 maybe only 10 have thought about the issue for more than two seconds.

      1. The question to the Flook Court was not whether a conventional method updated to use a different math formula should be patent eligible. The question was whether such method was patent eligible.
        If you go back to Benson, the Court explained that the kind of method reviewed in Benson was not a traditional process, and that the decision to extend the patent system to this kind of method was for Congress to make, not for the Court. So the Benson Court ruled that this kind of method was not eligible.
        Until now, Congress has not changed a thing (although it could have), so this kind of method is still not eligible. That does not mean that they should not be eligible.

        1. the Court explained that the kind of method reviewed in Benson was not a traditional process

          Mathematical algorithms are older than the Supreme Court and their use to “transform” a set of abstract symbols representing numbers into another set of abstract symbols representing numbers is likewise old.

          What was “non traditional” was the legal strategy of patenting an algorithm and justifying its eligibility on the basis of its utility in the context of machine computation.

          Information processing is ancient. Nothing “non-traditional” about it. As of 2018, digital computing machines are also ancient and pre-exist most people who were alive on earth today. This was also true of calculators and abacuses and there was no grand scheme to patent methods of using those devices to perform mathematical operations. All of this rotten business is driven by a tiny handful of patent attorneys who smell money and care about nothing else.

          1. Do you know what is really ancient?

            Protons, neutrons and electrons.

            Yet, imagine that configurations of these things are eminently patent eligible.

            Of course, this may mean that you will might have to let go of your fallacious “logic”

        2. “It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.” Gottschalk v. Benson, 409 U.S. 63, 71 (1972).

          1. While I appreciated the quote, Benson has to be one of the worst – written Supreme Court cases in this area. At least Alice was somewhat understandable. Benson had conflicting statements within the same paragraph.

            1. worst-written Supreme Court cases in this area

              That is, indeed, a high bar to clear. Supreme Court patent cases are mostly appallingly bad. It has been clear for a long while that the whole nation would be better served if they would just leave well enough alone from patent cases.

          2. “It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.” Gottschalk v. Benson, 409 U.S. 63, 71 (1972).

            Right. It’s common sense and logic that precludes a patent on logic instructions for machines that were built to apply logic to information. The holding of Benson is not the last word on the topic.

            1. You mean MM information processing machines. You know, like your brain. So, a machine that performs the functions of your brain is not eligible, ’cause, ’cause?

              You just make things up. “apply logic to information”? I guess that is one characterization that helps humans think about what is happening.

              So, MM opens the machines and points to a part of it and says that structure that contributes to the function of the machines is only “logic applied to the information” so it is not patent eligible.

              That makes sense at a witch trial.

    2. ONE of the “cabin effects” from Diehr was the notion of “claim as a whole,” which removes the Flook aspect of parsing the claim to focus on a singular limitation and making a 101 decision on that singular limitation.

      (note as well the choice of words “only novel feature” and the inherent conflation of 101 with 102 that is not a correct application of the words of Congress)

      1. the notion of “claim as a whole,” which removes the Flook aspect of parsing the claim

        And yet somehow still allows the claim to be parsed in other contexts, like obviousness, where the term actually appears in the statute.

        The patent maximalists are the laughing stock of the legal community,
        “anon”, and the quoted passage above is the reason why. You guys are just not very intelligent. Desperate, yes. Intelligent, no.

      2. Anon, Diehr pointed out in footnote 12 the fallacy of the argument that Flook had held that if the point of novelty was unpatentable subject matter then the claim as a whole was unpatentable. The court said,

        “It is from this language that the petitioner premises his argument that if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter. The fallacy in this argument is that we did not hold in Flook that the mathematical algorithm could not be considered at all when making the § 101 determination. To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious. ”

        In other words, the court was not cabining Flook. It was clarifying that Flook was misinterpreted by the lower courts.

        Particularly, Flook stood for the proposition that one had to determine what subject matter sought to be patented was, because the court recognized that the claim could include both unpatentable subject matter and patentable subject matter together. But the invention had to be in the patentable subject matter. The court clarified in Diehr that simply including unpatentable subject matter in the claim did not automatically make the claim as a whole ineligible. One still had to determine whether there was invention in the otherwise patentable subject matter.

        Later this analysis was extended and applied in both Mayo and Alice to hold that the otherwise unpatentable subject matter could be applied in and inventive application. Clearly, the mathematical algorithm used in Diehr improved that otherwise eligible process such as to make the entire process a statutory process within 101.

        1. Your attempted spin is simply not compelling.

          That you think there be no conflict in the Supreme Court decisions only confirms that you do not understand those decisions.

        2. Ned, thanks for your:

          “Flook stood for the proposition that one had to determine what subject matter sought to be patented was, because the court recognized that the claim could include both unpatentable subject matter and patentable subject matter together. But the invention had to be in the patentable subject matter.”

          I think that, when it filters patentability using Art 56 EPC (its 103 provision), the EPO since 1978 has been doggedly, assiduously tracking Flook, in requiring for patentability that the non-obviousness simply has to be within the ambit of the useful arts.

          1. Max, I wish that the US patent bar would finally start to understand this very simple concept. For too long they, and members of the CCPA and Federal circuit, warred against the idea that invention had to be in the useful arts. Just look at the way Rich dismissed the business method exception in State Street Bank:

            We take this opportunity to lay this ill-conceived exception to rest. Since its inception, the “business method” exception has merely represented the application of some general, but no longer applicable legal principle, perhaps arising out of the “requirement for invention” — which was eliminated by § 103.

            State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998) at 1375.

            Time and again, Rich and his cohorts would say that all that is required to pass 101 was that a invention as a whole had to be within the four classes leading to its preference for nominalism. That view still is held by the vast majority of American practitioners who still “resist” and who are even today hoping for a Congressional overrule.

            1. Yes and No, Ned. Look again at your Rich quote and compare with what I write about life at the EPO. You see, both Judge Rich and the EPO use a 103 filter. Only the EPO, however, confines to the ambit of the useful arts the sort of inventive activity that can evidence the presence of an “invention” eligible for patent protection.

              1. Max, there is a subject matter filter in the EPO and with the Supreme Court; but Rich all but read 101 out of the statute by moving on to 102/103 where all limitations were given weight.

                1. There you go ahead trying to malign Rich when all that Rich did was faithfully follow what Congress did.

                  No inte11ectual honesty from you at all Ned.

                2. Ned the sm filter in the EPC is its Art 52. To get through it at the EPO, all you need in the claim is “..on a computer” or “..over the internet”. The established caselaw of the EPO “all but” reads it out.

                  A bit like Judge Rich, I suspect.

                  The difference is that the EPO, but not Rich, demands that the “progress”, the inventive step, be within the useful arts.

    3. Yes, that is the best way to understand Flook, which is precisely why Flook is so awful. I take no particular umbrage with the Court’s conclusion that Flook’s claim is not §101 eligible. Judge Baldwin’s opinion for the C.C.P.A. below holding that the claim is §101 eligible is not a model of lucid reasoning. It seems to me that there is a fine argument to be made that Flook’s claimed method reads on subject matter that is not useful, because it all occurs totally in one’s head.

      Unfortunately, that is not the basis on which the Court reversed. Instead, Justice Stevens sketched out a mode of §101 analysis in which you tease apart the claims into novel and not-novel aspects, and then run the §101 analysis on those novel aspects. The claim only makes it to §§102/103 if the novel bits are §101 eligible.

      This is a terrible way to do patent law. The name of the game is the claim, not the arbitrarily chosen fragments of a claim. The whole point of patent law is to incentivize innovation, and the Flook mode of analysis hobbles that incentive.

      Imagine that I go to the pacific northwest and discover a compound in a tree root up there that cures eczema. Under Myriad, I cannot claim the compound per se, because the compound is just an isolated natural product. I try to patent “a method of treating eczema in a subject in need thereof, the method comprising administering a compound of foruma I to the subject,” where formula I shows my newly isolated compound. Under the Flook reasoning, I say to myself “well, people administer compounds to eczema patients all the time, so the only new bit is the isolated natural compound, but that is an ineligible product of nature.

      The take-away is that my new, useful, and nonobvious discovery is not patent eligible. The further take away from that is that no one is ever going to invest the capital necessary to take my newly discovered compound through the FDA approval process, so this drug will never get to patients. Socially sub-optimal deadweight loss in spades!

      From this we can see that the Flook analysis is a species of poor legal reasoning, because it defeats the purpose that the law was meant to encourage. The Diehr reasoning, by contrast, arrives at a socially useful outcome, because it mandates that one analyze the claim as-a-whole.

      Diehr good, Flook bad. It really is that simple.

      1. [T]here is a fine argument to be made that Flook’s claimed method reads on subject matter that is not useful, because it all occurs totally in one’s head.

        In other words, Flook’s claim should have been decided as a utility case, not a subject matter eligibility case.

        1. [T]here is a fine argument to be made that Flook’s claimed method reads on subject matter that is not useful, because it all occurs totally in one’s head.

          Thinking is not useful?

          Hmm. Doesn’t sound like a “fine argument” to me. Quite the opposite.

      2. Greg: The whole point of patent law is to incentivize innovation

        The point is to incentivize the commercialization of certain kinds of innovations.

        Most innovations don’t need patent protection as an “incentive”. Necessity is the mother of invention, after all, not patents. When patents become necessary for progress in a given field, that is a sure sign that there are bigger systemic problems that need to be addressed. When patents become a playground for lawyers to engage in speculative tr 0lling schemes, that is a sure sign that the patent system is failing miserably.

        Greg: Under the Flook reasoning, I say to myself “well, people administer compounds to eczema patients all the time, so the only new bit is the isolated natural compound, but that is an ineligible product of nature.

        Is that what you tell your clients?

      3. Greg: Diehr good, Flook bad. It really is that simple.

        Oh, brother.

      4. A new medical use of a known or natural compound is eligible. Am I missing something?

        1. No, you are not missing anything. That is my point. If we follow the logic of Flook, then a novel and non-obvious use of a natural compound must be ineligible. But no one acts like taxol for breast cancer was ineligible, and you can count on one hand the number of folks who suggest that it ought not to be. Which just goes to show that—at some level—we all know that Flook was a horrible ruling.

          We should all thank heaven that Diehr bent the course of the law straight again, to remedy the deformity worked by Flook. Unfortunately, the inexplicable itch that prods certain jurists to reinstate the Flook mistake is still about in the world, because that is just what Justice Breyer did in Mayo.

        2. But isn’t the medical activity of the natural compound a natural phenomenon; and even though newly discovered, therefore not eligible?

          How is the discovery of the medical use of a natural compound any different than the discovery of a diagnostic “natural correlation” correlation?

          They both look like, lookie: do this, get that result sorts of things to me.

    4. “I’m not sure how many would want to adopt the position that a conventional method updated to use a new math formula should be patent eligible.”

      That sounds like exactly what the patent system is intended to reward.

      The problem is that instead of “determining an updated alarm limit which is defined as B0(1-F)+PVL(F)+K”, most applicants want, and do not deserve, “determining an updated alarm limit based on a process variable”.

      1. Well, but if no one has every determined an updated alarm limit based on a process variable before, why should that claim not be allowable?

        Further, what if its based on process variable K (in particular). Would you be ok with it then? The prior art didn’t suggest that when K is low, the alarm limit can be/should be raised. Why if the preferred alarm limit to K function is dependent on the desired results (e.g., light toast or dark toast)? Does my claim now have to have a markush group of fuctions to cover all the conceivable desired results?

        1. “why should that claim not be allowable?”

          Because they don’t have posession of the full scope of what they’re claiming, and by allowing disproportionate grants you’re impeding the progress of the art.

          1. Yes they do. They have possession of K being related to the perfect alarm limit in a manner that is based on the desired result and they have shown the relationship for the extremes of the desired result range and for an intermediate desired result.

          2. Even if you were correct, which your are not, possession is not an issue under 101. This issue in thread 10 here is eligibility.

  7. I BEG TO DIFFER THAT IS THE LATE 60’S. THE NARU IS THE VERY LATE 60’S TO THE VERY EARLY 70’S. ALTHOUGH THE PLATFORM SHOE HELD ON, AND IS NOW AGAIN BIG. WHERE IS THE NARU? MUST BE AN ETHNIC THING ( SADLY I AM SURE) THAT SHOWS AS USUAL IN THIS US CULTURE ONE STEP FORWARD AND TWO STEPS BACK. MAYBE THIS ME TOO MOVEMENT WILL CHANGE ALL OF THAT? WE CAN ONLY HOPE.
    I SURE WOULD LIKE TO KNOW WHY YOU DON’T ADJUST THE TIME THEY WERE HERE VERSES ALL OF US OTHER IMMIGRANTS? DOESN’T SENIORITY MATTER EVERYWHERE ELSE?

    1. Your attribution of the sources of these “fashions” as from the late 60s-early 70s is correct, but the photo is of how those formerly cutting edge fashions had penetrated into mainstream clothing of the late 70s (which is what is depicted in the phot0).

  8. hilarious picture!!!!! keep ’em coming

  9. Flook is not “much maligned.” “Much maligned” is what one says when the speaker believes that the criticism is overstated or unjust. Flook rightly merits every ounce of obloquy it has suffered.

    My only regret about Flook is that Justice Rehnquist, as was his style, was too coy to say that the Court was over-ruling Flook in Diehr. Justice Stevens—Flook‘s author—was not fooled. His Diehr dissent made clear that he could see that Diehr effectively over-ruled Flook. However, because Justice Rehnquist pretended not to over-rule Flook, Justice Breyer was later able to do-unto-Diehr as Diehr had done-unto-Flook—over-rule it while pretending not to.

    Now we are stuck with a hopelessly unworkable mess of legal pottage, at least until some higher authority (Congress or a future Court) goes in and makes plain that one of these lines of irreconcilable authority (the Flook/Mayo/Alice line or the Diehr/Chakrabarty line) are dead-letters.

    Precisely because I think Flook is not “much maligned,” but rather justly maligned, I hope that this hypothetical higher authority chucks out the Flook line.

    1. The problem, Greg, is that you can’t over-rule basic logic and that’s what Flook rests on. The logic is that within the framework of our patent statute, it’s impossible to have the subject matter eligibility of a claim depend solely on whether the claim is presented as “a process.”

      From Flook: This assumption is based on respondent’s narrow reading of Benson, and is as untenable in the context of § 101 as it is in the context of that case. It would make the determination of patentable subject matter depend simply on the draftsman’s art and would ill serve the principles underlying the prohibition against patents for “ideas” or phenomena of nature.

      Rehnquist didn’t overturn Flook because he couldn’t without becoming a cl 0wn. Diehr stood for a much narrower proposition: that the mere presence of ineligible subject matter in a claim could render the claim ineligible. Yes, Diehr could have been written more clearly. The CAFC should have cleaned up the mess Rehnquist made but instead Judge Rich — one of the worst jurists in the history of patent law — took that mess and smeared it all over his entitled face and gave the profession a big greasy kiss. Heckuva job.

      1. Diehr stood for a much narrower proposition: that the mere presence of ineligible subject matter in a claim could render the claim ineligible.

        ineligible“…

        By the way, you are incorrect in BOTH your view of Diehr “being narrow” and in your apparent disagreement with Greg that the Court has ended up conflicting itself.

        but instead Judge Rich — one of the worst jurists in the history of patent law

        LOL – the one single jurist with the single most knowledge of the actual and intended patent law as passed by Congress in the Act of 1952, and your “portrayal” (read that as smear) says FAR MORE about you than about him.

        But that is not a surprise to anyone that has endured your almost dozen years of blight, now is it?

        1. Apologies, I was unclear. Should have said:

          “Diehr stood for a much narrower proposition: that the mere presence of ineligible subject matter in a claim was not sufficient to automatically render the claim ineligible. ”

          This holding stands today. And it always will.

      2. MM: “you can’t over-rule basic logic”

        But you can patent a process or method that implements it.

    2. Well said Greg.

      MM: again, you just refuse to actually address real issues.

  10. As everyone including Dennis knows, the CAFCs “broad interpretation” of Diehr was nonsensical on its face and conflicted with the CAFCs own case law.

    Hence the hammer that came down in Mayo.

    1. LOL – says the guy that predicted that Bilski would end the “Diehr-bots.”

      You have that “nonsensical” and “conflicted with” in the wrong place.

      And it’s not cute.

      1. the guy that predicted that Bilski would end the “Diehr-bots.”

        Well, nothing will ever end the “Diehr-bot”. That’s what the “bot” is all about.

        Glibertarians, Tr u mpkins and their close cousins the patent maximalists never learn. They just recycle their scripts. That’s because they only care about one thing: enriching themselves and being an @ h0le to everyone else. Once you appreciate that, all the ridiculous things that they (i.e., you) do and say make perfect sense.

        This is old news, by the way, but I’m happy to present it again for the newbies out there.

        1. You are doing that “one-bucketing” thing again with your ISMs.

          You should try some Adam Smith in this New Year. After all, your clients aim for the very thing that you so apparently disdain.

          Either that, or obtain some relief for that cognitive dissonance of yours by doing something else other than patent law.

          1. You are doing that “one-bucketing” thing again with your ISMs.

            I explicitly set forth three buckets. The fact they overlap is your problem, not mine.

            1. The fact they overlap is your problem, not mine.

              It is not that “they overlap” – it IS as you treat them as completely interchangeable in your mindless ad hominem.

          2. Or he’s lying about all the prosecution work coming out of his ears and, in reality, doesn’t have a reg number at all.

        2. “That’s because they only care about one thing: enriching themselves and being an @ h0le to everyone else. ”

          Only “from a certain point of view”.

  11. Parker v. Flook is an extremely well reasoned opinion that was prescient in predicting the future, particularly when it criticized the argument that the Supreme Court was importing “inventiveness” into consideration of patentable subject matter when those where the proper concerns of 102 and 103.

    First, respondent incorrectly assumes that if a process application implements a principle in some specific fashion, it automatically falls within the patentable subject matter of § 101 and the substantive patentability of the particular process can then be determined by the conditions of §§ 102 and 103. This assumption is based on respondent’s narrow reading of Benson, and is as untenable in the context of § 101 as it is in the context of that case. It would make the determination of patentable subject matter depend simply on the draftsman’s art and would ill serve the principles underlying the prohibition against patents for “ideas” or phenomena of nature. The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of “discoveries” that the statute was enacted to protect.[15] The obligation to determine what type of discovery is sought to be patented must precede the determination of whether that discovery is, in fact, new or obvious.

    Indeed, in the years subsequent, the Federal Circuit and clearly the patent office all but adopted nominalism whereby if the claim recited the performance of an algorithm on a computer or that software was embodied in a computer readable medium, the claim recited eligible subject matter. That led to State Street Bank, and to all the troubles we have had in the patent system since, including the backlash that is AIA and IPR.

      1. .is an attempt at revisionist history.

        Not a surprise then, that you agree with Ned’s Windmill Chase here.

    1. “The rule that the discovery of a law of nature cannot be patented rests, not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of “discoveries”

      Really now. What is there to discover BUT natural phenomena?

      1. What is there to discover BUT natural phenomena?

        Nobody is suggesting otherwise.

        Either you lack the intelligence to understand the issue, or you are simply tr 0 lling, or both.

        My bet is on the latter.

        1. The court was suggesting otherwise. If THEY “are not the kind of “discoveries”,” then THEY must be some other kind of “discoveries.” What other kind is there?

          Capice?

    2. Ned, I can understand you trying to codify how the iron-age judges think, but your justification of nonsense (e.g., that all information processing is a natural law) is reprehensible.

      Information processing is necessarily a physical process.

      1. Tegmark even places the “philosophical” MathS into the “real” physical world…

        (Just saying )

      2. Information processing is necessarily a physical process.

        Super deep! Very serious stuff.

      3. Night writer, I am not saying that information processing is a natural law. What I am saying is that information process is not the making of a machine, manufacture, or composition, nor does it necessarily improve a machine, a machine process, or a process for making a manufacture or composition. In context, information processing can in fact improved machines and processes for making manufactures, etc.

        1. for making a manufacture or composition

          THAT is not US law.





  12. More big Alice 101 internet software related fights may be coming up in the reported IBM Corp. suit against Expedia for infringing several patents, including patents on ad technology and sign-on processes.

  13. whats with the men’s fashion image? I think I may be missing an inside joke.

    1. Flook: symbolic of those great ‘70’s fashions.

  14. Would love to see a corresponding chart in which the noted Flook citations are matched with Diehr citations, which – as noted in Bilski – served to cabin Flook (as well as Benson).

    How often are those sets of words being disregarded in what can be best termed as a reanimation if the PRE-Diehr Flook-zombie.

    Much like the reanimation of the Mental Steps zombie.

    And yes, the lack of an Academic review of the actual history of THAT doctrine remains noticeably lacking.

    Bottom line here is that the Supreme Court has written itself into an untangleable and self-conflicting Gordian Knot.

    Wake up Congress.

    1. Just incredible that arguments that are based on science prior to the information age are being trotted out.

      Just remember that those that are trying to resurrect Benson and Flook are tools of Google.

    2. Anon, can you explain to all of us exactly what you mean and what you think the courts mean when they say that Diehr cabined Flook?

      1. Ned,

        You cannot be serious with this type of Br’er Rabbit type of question.

        See link to dictionary.com

        Especially 9., verb (used with object)
        to confine; enclose tightly; cramp.

        Are you trying to imply that the Court did not say that Diehr confined or limited Flook and Benson?

        I would not be surprised with such a revisionist attempt from you.

        1. In what way, anon? Into you answer that question I cannot answer your question. It seems to me that Diehr is entirely consistent with Flook.

          1. It seems to me that Diehr is entirely consistent with Flook.

            Unglaublich.

        2. What changed was a Flook cabining Benson – which seem to rely on wholly preempt. Flook made it clear that preemption was not an issue at all when speaking about nonstatutory subject matter being the subject matter being patented.

      2. The SCOTUS said “cabined” in one of the recent 101 cases. Can’t remember which one, but it was before Alice.

  15. Yes. Let’s get back to the iron age. This has nothing to do with large corporations wanting to eviscerate the patent system. Let me give you a hint. The intellectual arguments presented in Benson are from the 18th century and have nothing to do with modern science.

    1. Those that are established and would rather NOT compete on innovation factors (in the modern world’s most prolific And accessible area of innovation) thank you.

    2. You two are soooooo cute!

        1. Test:

          As happens again – the APPLICATION of the “conversations are not allowed” filter happens to be biased.

          On the latest thread, I have been capped.
          My usual moniker is associated with 7 posts.
          My secondary moniker (which I try to save for “conversations” with Ned) has also been capped with 7 posts.

          On the other hand, the person who does NOT engage in ANY conversation on the merits, and is the Queen of blight, Malcolm, has TWENTY posts on the new thread.

          At a nearly THREE to ONE ratio (per log-in), the single one person that provides the most blight on this blog – and the same one that has done this for nearly twelve years now – runs amuck.

          This type of agenda pushing, narrative shaping editorial-assisted C R P does not go unnoticed.

          1. I think if Crouch wanted to shape the narrative, he would be better off muting MM. Like how NWPA frequently comes off as a pro-software-patent caricature, MM usually does little for his side.

            1. My answer Ben, has been expunged.

              Funny that – the only thing that should have “felt bad” from that answer are those things that SHOULD “feel bad.”

              Not fitting the pre-ordained narrative is (apparently) more “offensive” than Malcolm.

              Good luck with that!

            2. perhaps salvaged now…

              Your comment is awaiting moderation.

              January 5, 2018 at 12:52 pm

              Better yet would be to simply apply the SAME RULES evenly and objectively.

              But as noted, that does not happen.

              (and yes, while I would agree with you that Malcolm’s car1cature effect is damaging to his “side,” the unfortunate incidence (and workings of propaganda generally) is that “repeating L I E S often enough, they will garner the semblance of truth” and we have seen those less sophisticated here simply eat up this slop and believe in it).

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