GUI Menu Structure Found Patent Eligible

by Dennis Crouch

In a split opinion, the Federal Circuit has affirmed Core Wireless win over LG Electronics [DECISION] – finding the asserted patent claimed eligible subject matter and refusing to disturb the district court’s judgment of no-anticipation and infringement. U.S. Patent Nos. 8,713,476; 8,434,020; and 6,415,164 (UK Priority Date of July 2000). The patents here are directed to user-interfaces — basically users are shown a menu of applications; Selecting on an application takes the user to an “application summary” that includes functions of the application and files (“data”) associated with each application that can be selected to launch the application and enable the file to be seen within the application.

LG Challenged Claim 8 of the ‘476 patent – arguing that was improperly directed to an abstract idea. As shown below, the claim stems from independent broad claim 1.

1. A computing device comprising a display screen, the computing device being configured to display on the screen a menu listing one or more applications, and additionally being configured to display on the screen an application summary that can be reached directly from the menu, wherein the application summary displays a limited list of data offered within the one or more applications, each of the data in the list being selectable to launch the respective application and enable the selected data to be seen within the respective application, and wherein the application summary is displayed while the one or more applications are in an un-launched state.

8. The computing device of claim 1 in which the summary further displays a limited list of functions offered in the one or more applications.

Because eligibility is deemed a question of law, it is decided by district court judges (rather than juries) and reviewed de novo on appeal. Here, the district court refused to find an abstract idea – characterizing the claim as directed to “displaying an application summary window while the application is in an unlaunched state.” In the alternative, the district court also held that key innovations of the patent would render the claims eligible under Alice Step 2. In particular, the district court noted the key innovation of “directly” accessing the application summary from the menu while the application is yet “unlaunched.”

On appeal, the Federal Circuit affirmed – finding that the invented approach here is an eligible improvement to a computer system rather than simply the use of computers as a tool.

The asserted claims in this case are directed to an improved user interface for computing devices, not to the abstract idea of an index, as argued by LG on appeal. Although the generic idea of summarizing information certainly existed prior to the invention, these claims are directed to a particular manner of summarizing and presenting information in electronic devices. . . . These limitations disclose a specific manner of displaying a limited set of information to the user, rather than using conventional user interface methods to display a generic index on a computer. Like the improved systems claimed in Enfish, Thales, Visual Memory, and Finjan, these claims recite a specific improvement over prior systems, resulting in an improved user interface for electronic devices.

Holding: Claims are not directed to an abstract idea and therefore are eligible under Alice Step 1.

All judges on the panel agreed with this holding. The disagreement between the majority (Moore & O’Malley) and Dissent-in-Part (Wallach) comes over the definition of the claim term “unlaunched state.” The majority construed the term as “not displayed” while the dissent argues that it should be construed as “not running.” The two definitions result in differing treatment of apps that are running in the background. The changed construction result would likely impact both the infringement and anticipation conclusions. For its part, the majority explained that the patent used the word “launch” in several instances to be synonymous with “displayed” – thus leading to its conclusion.

162 thoughts on “GUI Menu Structure Found Patent Eligible

  1. 10

    And the zombies keep coming because that’s what zombies do. Here’s another one.

    patent leather: The “printer matter” exception could weed out most of these under 102/103

    People, you can’t have it both ways. The so-called “printed matter doctrine” is a subject matter eligibility test, plain and simple. It’s a purely judicial creation and it exists for the exact same reason that the so-called “judicial exceptions” exist, i.e., to keep the patent system from devolving into the realms of absurdity and unconstitutionality. And, as typically applied, it perfectly exemplifies both the necessity and reasonableness of “claim dissection”.

    [quick reminder: the so-called “printed matter doctrine” is not limited to evaluating claims which recite “printing”; it can be applied to any claim which recites any information that is printed, displayed, communicated, broadcast or stored, for any purpose; more below ..,]

    The fact that the same people who complain about endlessly about the alleged vagueness (“I don’t know what abstract means! Wah!”) and “unfairness” (“claims as a whole! Wah!”) of contemporary 101 jurisprudence somehow can manage to support the so-called “printed matter doctrine” just shows that hypocrisy knows no limits. The sole “test” for passing through the so-called “printed matter doctrine” is that the printed matter is “functionally related” to the substrate upon which is printed. On its face, the determination as to when information is “functionally related” is a coin flip. It simply depends on the result that the jurist/factfinder is seeking. Nothing at all radical or new here, by the way; the wishy washiness and woeful inadequacy of the so-called PMD “test” has been admitted and recognized by many of the same people who are unsatisfied with Mayo/Alice.

    The dissatisfaction is going to continue as long as the patenting of logic and information — whether its done through functional claiming or resort to some classification of degrees of non-existent “structure” — remains in the system. That’s why it should simply be expunged. Only then will the patent system return to something resembling “normal”, rather than an exercise in pure scrivening and sweatless speculation (lawyer sweat doesn’t count, folks — sorry about that).

    1. 10.1

      …except for the fact that you do not address (gee, that’s a surprise) the exceptions to the judicial doctrine of printed matter.

      Maybe someone should provide an easy to understand set theory explication and invite comments to that explication?

      What? That was done? Boy, let me see Malcolm’s (obviously important and oh so totally inte11ectually honest) inputs into that dialogue…

      That’s right as well – there were NONE from Malcolm.

      1. 10.1.1

        except … you do not address (gee, that’s a surprise) the exceptions to the judicial doctrine of printed matter.

        Yes I did. It’s not a surprise that you missed it. Here it is again:

        The sole “test” for passing through the so-called “printed matter doctrine” is that the printed matter is “functionally related” to the substrate upon which is printed. On its face, the determination as to when information is “functionally related” is a coin flip. It simply depends on the result that the jurist/factfinder is seeking. Nothing at all radical or new here, by the way; the wishy washiness and woeful inadequacy of the so-called PMD “test” has been admitted and recognized by many of the same people who are unsatisfied with Mayo/Alice.

        And just in case the “nuance” flies over your head, this is the the rank hypocrisy: you can not embrace this ridiculous “test” and simultaneously bemoan the alleged “vagueness” of Mayo/Alice. Those decisions are crystal clear compared to “functionally related”. And that’s not even getting into the abject wrongness of functionally claiming (!) “printed matter” without ever stating what the “printed matter” is.

        1. 10.1.1.1

          You “knowing this better” is evidently NOT the case as you state a “sole test” something that is an exception to the rule, while not bothering to properly set that distinction.

          As mentioned, I provided a very easy to understand – and proper – explication of the rule and the exception.

          I even invited you to partake in a dialogue on my explication.

          Multiple times.

          And guess what happened each and every time I invited you to a dialogue on the merits?

          You
          Ran
          Away

          There is no such “coin flip,” Malcolm, and your empty words here are meaningless.

          There is no such “inadequacy” admitted to here – you are making things up whole cloth.

          There is no such “equal ambiguity” here. Your statement to the contrary has no support.

          More than your empty mouthings is needed Malcolm. More than your usual dissemblings is needed for you to establish any type of legal position here.

    2. 10.2

      Agreed.

  2. 9

    eligibility analysis because the relationship of the claim to the prior art is necessarily changed. This is easy stuff

    Eligibility analysis has ZERO to do with prior art – when that analysis is properly applied.

    THAT is easy stuff.

    1. 9.1

      Wrong wrong wrong anon. You are wrong that you can analyze eligibility without construing an invention, and you can’t construe an invention without some prior art context. You are wrong about a “wide open gate” is that some Rich dicta or do those words appear in a statue somewhere? It’s quite the opposite- Congress has a duty to protect for the public that which rightfully belongs to the public. And wrong about the law as it’s actually practiced and has been for years. 101 requires a view to prior art, and always will, and these many cases that prove it will never, ever be overturned.

      Hat trick!

      1. 9.1.1

        They are separate sections of law for a reason, Marty.

        They do NOT “bleed over” like you are suggesting.

        They simply do not.

        NO ONE is saying that you cannot construe an invention. But the invention – construed – is SEPARATELY evaluated for each of 101, 102, 103 and 112.

        Further, it is NOT “some dicta from Rich” that provides for the wide open gate.

        It is the very nature of innovation (advancing into the unknown) and the will of Congress from which that comes.

        Protect the public…? That is PURE anti-patent pablum that you are spouting. Innovation – and the promotion thereof is what “protects” the public and enriches the public.

        Hat trick?

        For you – not even close. In the opposite direction? Most assuredly.

        1. 9.1.1.1

          Protecting the public…is PURE anti-patent pablum?

          Says he/she who is hypersensitive to other’s hidden biases.

          The results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts

          If it’s NOT “some dicta from Rich” that provides for the wide open gate, it’s your own bias. Show us where the “will of Congress” says otherwise.

          1. 9.1.1.1.1

            YOUR “version” of “protecting the public” is pure anti-patent pablum.

            There is NO bias in that observation.

            I will let you do your own homework as to the will of Congress (and to the nature of innovation), but here is a tidbit: Chakrabarty hinted at it.

            Maybe you will validate why you think such is mere dicta from Rich…

            1. 9.1.1.1.1.1

              (most likely, all that you have done is mindlessly bought into the personal ad hominem spew against Judge Rich that Ned ladles out – instead you should realize that NO OTHER jurist has a better understanding of the intent of Congress, and why that was so).

        2. 9.1.1.2

          But the invention – construed – is SEPARATELY evaluated for each of 101, 102, 103 and 112.

          You can stop shouting your nonsense any time.

          The same construction of the claims applies to each statute.

          And understanding the relationship of the claims to the prior art is necessary for any subject matter eligibility screen to work. Absent a radical change to the manner in which we allow inventions to be claimed, that’s never going to change.

          1. 9.1.1.2.1

            I am not the one shouting nonsense.

            That would be you and your attempts at conflation.

            Yay, Malcolm Meme of Accuse Others…

            Again – and this remains easy – a proper 101 analysis has ZERO to do with prior art.

            The existence (or absence) of prior art does not change something from ineligible to eligible, or eligible to ineligible.

            The other parts of the law are there explicitly for that purpose of dealing with prior art.

            You seem to be hinting at something new in your final paragraph, with a hint at “radical change to the manner in which we allow inventions to be claimed.” Could this be in regards to your oft-dissembling attempts to portray optional claim formats as somehow NOT optional?

            If so, will you (finally) address the counter point put to you that ANY software claim could be written in your “objective physical terms” option and encompass claims spanning tens or even hundreds of pages of “structural terms” that no human being could examine? Such as may be presented with a disc providing full radial sector and spatial indications corresponding to the current terms that are easily recognized by Persons Having Ordinary Skill In The Art?

            1. 9.1.1.2.1.1

              will you (finally) address the counter point put to you that ANY software claim could be written in your “objective physical terms” option and encompass claims spanning tens or even hundreds of pages of “structural terms” that no human being could examine

              That’s been addressed already hundreds of times. In other contexts, the grown ups have dealt with the issue of claiming small things in great detail. Yes, it’s complicated and expensive and requires quite a lot of planning and infrastructure. And, yes, we know that certain people (like you) operate best in a dark unlit room where there isn’t a lot of order. But the lights are going to get turned on eventually. You won’t like it.

              1. 9.1.1.2.1.1.1

                It “requires” that which merely a Person Having Ordinary Skill In The Art would recognize.

                You confuse your own practice art and wish to have alll other art units be costly and expensive.

                This is not only plain (and easy) legal error, it also shows the typical dichotomy that you never seem able to explain with your angst against those with money using the patent system at the same time that you think that any and all answers must be expensive.

                It is just not so.

                1. (and there is absolutely nothing “grown up” about WHAT you want nor the manner you go about demanding WHAT you want – quite the opposite in fact)

                  But you already know that.

            2. 9.1.1.2.1.2

              You seem to be hinting at something new in your final paragraph, with a hint at “radical change to the manner in which we allow inventions to be claimed.” Could this be in regards to your oft-dissembling attempts to portray optional claim formats as somehow NOT optional?

              No, I’m talking about a radical change like instituting mandatory Jepson-style claiming where applicants claim *only* the subject matter that is new and omit the prior art context (e.g., the “computer”). In other words, if you “invent” a new algorithm, then you claim the algorithm. If you “invent” new software, then you claim “new software”. If you “invent” a new logical step, then you claim the new logical step. You don’t get to bury your “invention” in a heap of prior art context (e.g., a “computer” or a “network system” etc) to muddy up the fact of what you’re actually contributing to “the art.”

              The existence (or absence) of prior art does not change something from ineligible to eligible, or eligible to ineligible.

              That’s what Prometheus tried to argue and they were shot down 9-0. Specifically, Prometheus argued that the recitation of the prior art data gathering step *did* turn the otherwise ineligible subject matter (thinking about a correlation) into an eligible claim. Prometheus was wrong. Everybody knows this, by the way, including you. This is why you are a dissembling hack.

              1. 9.1.1.2.1.2.1

                Mandatory Jepson…

                You – as a joke – writes itself.

                1. It’s not clear why you’re laughing since we both agree that such a change is highly highly unlikley.

                  Or do you really have much difficulty keeping up … with the responses to your own questions. I mean … wow.

                2. You are not clear that YOUR wanting a “mandatory Jepson” claim format is not a joke of the highest order….

                  Stop it – I’m splitting my sides.

              2. 9.1.1.2.1.2.2

                And your take-away from Prometheus is simply wrong.

                But you know that as well, eh Malcolm?

                1. your take-away from Prometheus is simply wrong

                  Says the guy who who was wrong about Mayo and who spent years tr 0lling this blog with s0 ckp uppets trying derail any conversation of the case.

                  And then Dennis outed him.

                  Man, that was funny.

              3. 9.1.1.2.1.2.3

                MM, spot on.

        3. 9.1.1.3

          It is the very nature of innovation (advancing into the unknown) and the will of Congress from which that comes.

          Then why have an eligibility requirement at all?

          Thanks for playing.

  3. 8

    Geeze, I thought Lotus v Borland was still good law. Must be the new guys on this panel. Don’t they teach you guys this stuff in law school anymore?

    1. 8.1

      I mean you raise an interesting point, but I’m not sure that it’s entirely fair to characterize it as completely disposing of any issue. The First Circuit decision was undisturbed and affirmed in a per curiam opinion as a result of a 4-4 split following Stevens’ recusal. See Lotus Development Corp. v. Borland International, Inc., 516 U.S. 233 (1996).

      And it’s not like the First Circuit decision has been universally followed. The Federal Circuit in Oracle Am., Inc. v. Google Inc. (750 F.3d 1339 (Fed. Cir. 2014)) found that “Lotus is inconsistent with Ninth Circuit case law recognizing that the structure, sequence, and organization of a computer program is eligible for copyright protection where it qualifies as an expression of an idea, rather than the idea itself.” Oracle, 750 F.3d at 1366.

      In Oracle, the Federal Circuit noted that “while the court in Lotus held ‘that expression that is part of a ‘method of operation’ cannot be copyrighted,’ … this court—applying Ninth Circuit law—reached the exact opposite conclusion, finding that copyright protects ‘the expression of [a] process or method.’” Oracle, 750 F.3d at 1366 (citing Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 818 (1st Cir. 1995); Atari Games Corp. v. Nintendo of America Inc, 975 F.2d 832, 838 (Fed. Cir. 1992)).

      The Federal Circuit also noted that “the Tenth Circuit [has] expressly reject[ed] the Lotus ‘method of operation’ analysis, in favor of the Second Circuit’s abstraction-filtration-comparison test.” Oracle, 750 F.3d at 1366 (citing Mitel, Inc. v. Iqtel, Inc., 124 F.3d 1366, 1371 (10th Cir. 1997)).

      Again, none of this is to say that you don’t make an interesting point, just that I can completely understand why Lotus isn’t on the minds of many.

      1. 8.1.1

        “this court—applying Ninth Circuit law—reached the exact opposite conclusion, finding that copyright protects ‘the expression of [a] process or method.’” Oracle, 750 F.3d at 1366 (citing Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 818 (1st Cir. 1995); Atari Games Corp. v. Nintendo of America Inc, 975 F.2d 832, 838 (Fed. Cir. 1992)).” — “copyright protects ‘the expression of [a] process or method.” That part is hauntingly huge in it’s ramifications. Thanks for the edification.

        1. 8.1.1.1

          It’s not as huge as you may think. See below regarding the note to Marty and the concept of unity.

          The expression is all that is protected by copyright. Where there obtains a unity between expression and function, copyright fails to inure. If no unity, then ONLY that expression itself (and NOT the function) is protected by copyright. That expressive protection may be very thin indeed.

          1. 8.1.1.1.1

            In the case of this kind of low rent g@ rbage, who cares?

            1. 8.1.1.1.1.1

              Your feelings are noted.

      2. 8.1.2

        It is a good question. How does Lotus fit into all this.

        1. 8.1.2.1

          Did Alice render Lotus no longer good law?

          1. 8.1.2.1.1

            Alice itself is Void for Vagueness (among other infirmities).

            The faster that fact is realized, that he better off the ENTIRE legal patent ecosphere will be.

  4. 7

    OK, here’s a question for all the 101 abolishers: Assume Einstein never was born and only in 2018 did phinklestein physicist first come up with e=mcc. Phinklestein sees his patent lawyer who files an application with the following claim: “a computer configured to: a) input a mass; b) multiply the mass by 3.45 x 10^10 to get an energy value; c) output the energy value.”

    The claim cannot be obvious as this is one of the most brilliant works done by man. Anyone here really think this is eligible? Wait, I think there are least a couple…

    1. 7.1

      I just ran your comment through my algorithm (using a computer) and came up with “-10 on a scale of 1 to 20”.

      Is my “configured computer” eligible?

      In case you’re wondering, my friend found it entertaining. Helped him a bit, since he has a cancer and, hey, every little bit helps you know.

    2. 7.2

      Patenting logic doesn’t promote better logic.

      Never has. Never will.

      It does make money for a tiny subclass of the least educated patent attorneys out there, however.

      Now guess what’s driving the desire to patent logic? Guess really hard.

      1. 7.2.1

        This guy hates logic. And it shows.

      2. 7.2.2

        i don’t think that claim falls under “logic.” it is clearly just an ineligible law of nature.

        1. 7.2.2.1

          Clearly only if you want to think like someone from 1900. In the information age, we know that this is not a “law of nature.” We know this is a heuristic that an information processing machine (a brain) invented and that the equation is likely wrong.

        2. 7.2.2.2

          Seriously patent leather, the last thing we need is another person with 19th century thinking.

        3. 7.2.2.3

          law of nature?

          Like the aether of Michelson/Morley, or the 18th century phlogiston, or the ancient Greek “four elements,” or how about alchemy or even basic witchcraft or magic?

          Maybe you don’t want to place such feeling so close to the edge of the flat world, in case (you know) a cat knocks them off the edge…

      3. 7.2.3

        I added an atom at the end of an aspirin molecule. Is it patentable? I nailed a new piece of wood on stand. Is it patentable? Etc.

        Just nonsense from you MM.

        1. 7.2.3.1

          Wait a minute – you added an atom?

          What is an atom configured of?

          Protons, neutrons and electrons?

          Those are old.
          Those are fundamental particles.

          How exactly did you add these things?

          That “method” is nothing more than a law of nature.

          Thus – under the “logic” of the anti’s, NO PATENT FOR YOU.

    3. 7.3

      1) The equation is a heuristic equation that was created by a human mind. Its purpose is for the human to able to understand and perform heuristic calculations.

      2) How often does this come up? And how harmful would it be to have a patent to the claim you suggest? It may be that allowing this claim that this would encourage finding more heuristic formulas for humans to use.

      3) It should be possible to identify the black swan event when a new heuristic formula is invented.

      4) Currently, the CAFC and SCOTUS have swallowed all of patent law into your example.

      Would it be so bad to grant a patent on your heuristic equation? Probably not. Probably would encourage fundamental research.

      1. 7.3.1

        And, please, anyone that responds to my comment ry to use philosophy that is not from the 19th century. Please try to use a modern understanding of the brain. Please no arguments about angels and information processing occurring magically, and no arguments about the equation actually being anything other than a heuristic that may or may not be right, but that the human brain likes.

    4. 7.4

      I am sure, patent leather, that your example below is absurd. You contend that if an invention is too simple that it is a witch and should be held ineligible. Again, not a law. This you would perform by the sniff test. You just know one when you see it because you are so smart.

      Please. Try to practice law.

    5. 7.5

      Les used this exact example the other week. He says protect that basic discovery for 20 years so nobody else can use it if Phinklestein says so.

      oops, I guess the war does not end cleanly ’cause you know, no A-bombs.

      1. 7.5.1

        Martin, your conclusion is not supported by the premise. Just silly stuff from you.

    6. 7.6

      The essence of a reductio ad absurdum argument is that the thing that comes out the far end has to be palpably absurd. I just do not see it, here. Maybe I am unusually dense, but what is so ridiculous about the idea of a special purpose machine in which you can input a mass and get an energy figure output? If I invented a mess of gears and switches that could tell you the amount of energy in a given unit of mass, and then claimed that configuration of gears and switches, I doubt that anyone would bat an eye at the §101 eligibility of that claim.

      1. 7.6.1

        ISTM half the battleground is over which art is subject to PHOSITA analysis. The concept of eligibility has to land on some art, if only to place the putative invention in some context.

        Greg your machine may not be obvious to the mass/energy relationship arts, but very, very obvious to the mechanical calculator arts. Is the invention then one of mass/energy relationships, or mechanical calculators?

        I’ve  advocated for years now that the statutory categories are only really broken in the information age by the process category, since everything people do can be characterized as a “process”.

        The information age also breaks the traditional notions of obviousness, because information is far more malleable than….lets say…..boxes of protons and neutrons.

        Some kind of Markman like procedure to frame the invention in terms of the arts and basic obviousness would remove the equitably demanded stretch of the 12(b)6 in early stages of litigation.

        An expansion of secondary indicia of obviousness to include multiple instances of independent invention should happen too- if 10 or 20 people come up with the same idea, never having been in contact, competition, or knowledge of a patent, you can be quite sure the idea is obvious.

        At any event, enforceable patents on this kind of “innovation” hurts everyone involved except rent-seekers, and delegitimizes the patent system almost totally, when its only a tiny slice of the system that is broken.

        1. 7.6.1.1

          Not sure why you assume Greg’s claim is obvious, Martin. It depends on the details of the claim.

          1. 7.6.1.1.1

            I did not assume it would be obvious to the mass/energy relationship arts or to the mechanical calculator arts, only that the obviousness analysis (and the eligibility analysis) could be very different depending on how the invention was construed.

      2. 7.6.2

        Martin cogently explains why the an assemblage of gears to calculate a particular equation is not per se eligible. As assemblage of gears to calculate can be generally known, the way to modify the gears for a particular equation might equally be known, so that the only possible novelty is in the equation.

        Thus the question is, what is the invention? The machine or the equation?

        This is why people who say programmed computers are like a circuit configured to do the same thing, and because the latter are eligible, so must be the former. But the premise is faulty, because the there may be no invention in the circuitry, just in the equation. Saying, do it in circuitry adds nothing. This is the same as the CD-ROM with new music.

        1. 7.6.2.1

          Thanks Ned.

          FINE ARTS FINE ARTS FINE ARTS.

          But tell me, is stock trading among the useful arts? Sports betting? Online dating?

          1. 7.6.2.1.1

            None of those things fall within the useful arts.

            1. 7.6.2.1.1.1

              Why if it doesn’t include iron than it ain’t no stinking invention.

        2. 7.6.2.2

          Your comment is awaiting moderation.
          January 26, 2018 at 3:41 pm
          Ned,

          This is some serious “6-is-a-geniuis-because-he-agrees-with-me” sickness you have going on here, as Marty is as far away from “cogent” as is humanly possible.

          That you attempt the “music” analogy also shows that you too are as far away as possible.

        3. 7.6.2.3

          Your comment is awaiting moderation.
          January 26, 2018 at 3:41 pm
          Ned,

          This is some serious “6-is-a-geniuis-because-he-agrees-with-me” s1ckness you have going on here, as Marty is as far away from “cogent” as is humanly possible.

          That you attempt the “music” analogy also shows that you too are as far away as possible.

      3. 7.6.3

        “Maybe I am unusually dense, but what is so ridiculous about the idea of a special purpose machine in which you can input a mass and get an energy figure output?”

        Are you also comfortable with this when the machine is a generic computer and the configuration amounts to three lines of code?

        1. 7.6.3.1

          >Are you also comfortable with this when the machine is a generic computer and the configuration amounts to three lines of code?

          This is arrogance–not patent law. Ben sniffed and decided not eligible because he is so smart. No need for 102/103/112. Ben can sniff and tell us what is patentable.

          1. 7.6.3.1.1

            I was simply asking Greg his opinion. You may be unfamiliar with that process, as no one cares about your opinion.

            1. 7.6.3.1.1.1

              Ben,

              Your Malcolm-like attitudes do NOT do you well.

              Here the snide comment is a self-defeating one.

              See if you can figure out why.

              1. 7.6.3.1.1.1.1

                So NWPA insults me over a question directed to someone else, and your only comment is to disapprove of me responding in kind? I suppose you don’t see how policing only those you disagree with would impact your credibility.

                1. Trading insults is rather NOT the point there Ben. Or perhaps better put: learn to insult better.

                  Look again at the insult you brandish.

                  Figure out WHY that insult is self-defeating.

                  “Policing” is not the point there. Insults as a form of communication (much like the Boss Tweed articles of the Yellow Press days) CAN be an intelligent attack.

                  Yours was absence the intelligence.

                  YOU, much like Malcolm, trying to smear my credibility has ZERO effect. Especially when you appear to not be able to get out of your own way.

                2. Ben >>Are you also comfortable with this when the machine is a generic computer and the configuration amounts to three lines of code?

                  Ben, trying to deny that your statements have judged the invention is absurd. At least own up to what you did.

        2. 7.6.3.2

          and the configuration amounts to three lines of code?

          I cannot find anywhere n the patent law as written by Congress any such “no patent for you” if an innovation can be obtained with ANY amount of lines of code.

          Where does this anti-patent bias come from , Ben?

      4. 7.6.4

        Greg what is so ridiculous about the idea of a special purpose machine in which you can input a mass and get an energy figure output

        Nothing.

        if I invented a mess of gears and switches that could tell you the amount of energy in a given unit of mass, and then claimed that configuration of gears and switches

        A new machine claimed in structural terms distinguishing the claimed structure from the prior art structure isn’t abstract. The claim protects that particular machine, not the information processing performed by the machine.

        That’s not the case when you recite only old structures and magic words (i.e., “configured to” [insert ineligible data processing method here]).

        This isn’t difficult stuff.

        1. 7.6.4.1

          claimed in structural terms

          …and yet again, you ploy the dissembling of trying to make an optional claim format be something other than optional.

          THIS isn’t difficult stuff – even as YOU continue to struggle with it.

        2. 7.6.4.2

          MM, slow down. If the machine is old and the only thing new is the routine configuration of the gears to solve a new mathematical problem, we have the same thing as the programmed computer. The details of the old machine are irrelevant.

          1. 7.6.4.2.1

            Your post is not clear Ned. Are you trying to reference an inherency doctrine argument?

            1. 7.6.4.2.1.1

              No, anon. Multiplying the details of the old and conventional structure is not going to get you to where you want to go. Such is not the stuff of a new or improved machine.

              1. 7.6.4.2.1.1.1

                Still not following what legal point you are trying to put forth.

                Are you aiming for an inherency doctrine position?

                OR – (gasp) – are you advocating like Malcolm for a “Mandatory Jepson Claim format”….?

    7. 7.7

      Your scenario is specious. The correct scenario is e=mc^2 is discovered and used to patent a reduced to practice controlled reactor or maybe the A-bomb. No one ever argued the formula was patentable – but devices, machines, inventions etc, that use the formula is a device reduced to practice – is surely patentable. A better example for you would be trellis encoded modulation. Clearly this is man-made made up math, but enormously useful in the context of modulation. These are the core motorola patents. Inventor won the Shannon award.

      1. 7.7.1

        Likewise MPEG compression and various innovative encryption schemes. That’s why to me, the critical, and intuitive dividing line for information/logic eligibility should be human consumption of the information result. If it’s a non-human actor consumer, it should be eligible and move on to a compacted preliminary construction of the invention and PHOSITA / obviousness analysis.

  5. 6

    This case is in severe tension with a number of prior CAFC cases (if you don’t know which ones or understand this, I don’t have the time to explain this to everyone). Of course, the panel here is why this was held statutory, no doubt most of the other judges would have found these claims ineligible.

    I fundamentally agree with the end result here. However, the opinion broadens the “improving the functioning of a computer” to essentially include “improving how one uses a computer.” The latter argument could be applied to most any software. Where the line is drawn still isn’t defined. The current framework of determining what is an “abstract idea” is muddier than ever.

    Many similar interface claims were held ineligible by the USPTO and went abandoned. Now they apparently are eligible. This is the problem of opening “Pandora’s 101 Box.”

    1. 6.1

      One CANNOT “just use” until the machine is re-configured.

      It really is that simple (if you are inte11ectually honest about the reality of what is going on).

      1. 6.1.1

        I don’t have the time to get into a long debate about this. but if mere “reconfiguring” was the test, then basically all uses of a computer would be eligible. Do you really think the following claim should be eligible: “A computer configured to display the following words: roses are red, eggs are cracked, it is now too difficult to determine what is abstract.” Do you really think this should pass 101? I know you’re answer would be “yes.” But this would be getting ridiculous. The “printer matter” exception could weed out most of these under 102/103, but in some cases there could be artistic content allegedly related to the invention making such application very difficult.

        I’ve posted some proposals on past threads of amendments to 101 that are at least a starting point for discussion as to how 101 can be amended to allow for software while excluding the “this is stupid” patents.

        1. 6.1.1.1

          >>Do you really think the following claim should be eligible:

          I really don’t get why people think that simple claims should be ineligible. Do you think that a claim to four pieces of wood hammered together in a certain way should be ineligible?

          Structure. 102/103/112 are sufficient to reject the claims you recite.

      2. 6.1.2

        anon, i posted my response but we’re stuck in the filter again. it is very frustrating.

        1. 6.1.2.1

          Now my response is caught in the “don’t have a dialogue” count filter

          1. 6.1.2.1.1

            Your comment is awaiting moderation.
            January 26, 2018 at 3:51 pm
            My comment regarding TWO prongs to 35 USC 101 appears to be wiped out (even from the ‘in moderation’ limbo).

            Short recap: it is a mistake to think that there is ONLY a statutory category requirement in 101, and NONE of my positions have EVER indicated such.

            There are two – and only two – aspects to 101:
            utility (as in the Useful Arts) , AND
            statutory category.

            Be aware of (and beware of) those who would turn 101 into an anti-patent device from the deliberate attempt by Congress to have a forward-looking (and thus wide-open gate) to the subject matter of patent eligibility.

            Be aware of (and beware of) those attempting to insert some type of “Point of Novelty” into 101 where Congress NEVER indicated anything of the sort.

            1. 6.1.2.1.1.1

              anon, do not forget “new or improved.”

              Also, the main dispute between you and I over 101 is whether using a computer makes an improved computer.

      3. 6.1.3

        There is no “new configuration” recited in any of these grbge claims.

    2. 6.2

      patent leather, good observation. But improving the utility of a computer system does related to user interface, IMHO. Ditto, the OS.

      But, simply using a computer to calculate risk or price or the like without any improvement to to the way the computer does that calculation is not directed to improving the utility of a computer, but using the utility of a computer to improve the risk/price calculation.

      1. 6.2.1

        Utter balderdash, Ned.

        There is NO “just use.”

        What you are suggesting is merely an already extant utility. The proper patent doctrine in that case is inherency.

        But new software brings new utility.

        One cannot DO the “new utility” merely “by magic.” IF you need the software, then you have a changed machine.

      2. 6.2.2

        Reality Ned is that business methods are changed by the way the computer does them in new ways. Reality.

          1. 6.2.2.1.1

            Seems wrong to fire him for this. Constructive engagement.

      3. 6.2.3

        I don’t disagree, Ned. Although some clever claim drafting may be able to couch an ineligible claim as some sort of user interface/experience improvement. If I find more time, I’ll come up with some examples.

        This case flies in the face of Apple v Ameranth. Can you find some way to reconcile them?

        1. 6.2.3.1

          “Clever claim drafting” – as opposed to non clever Court scrivining?

        2. 6.2.3.2

          “some clever claim drafting may be able to couch an ineligible claim as some sort of user interface/experience improvement.”

          Comments like this belong in opinions like Benson.

        3. 6.2.3.3

          patent leather, Ameranth was about data only. Core Wireless is about the displays.

    3. 6.3

      Agreed. Patenting logic carried out by a computer is a terrible idea. Always was. There’s no way to draw a bright line in the ether.

      1. 6.3.1

        Yes, MM, let’s make information processing machines in the information age ineligible for patentability.

        These machines are projected to replace 100’s of millions of jobs over the next 50 to 100 years. But, we know they are a witch so we better not let them in.

        1. 6.3.1.1

          the information age

          It’s the Age of J unk Patents That Destroy the Patent System, not the information age.

          Same “age”, different names. See how that works?

          We can do this all day. Anyone can.

          These machines are projected to replace 100’s of millions of jobs over the next 50 to 100 years.

          So?

          1. 6.3.1.1.1

            Destroy the Patent System

            O
            H

            N
            O
            E
            S

            yep – that be Malcolm shouting nonsense….

      2. 6.3.2

        Malcolm, the EPO allows software claims with a “technical” solution (whatever that means), even if it is based on “logic.” Do you see the EPO patent system exploding? I don’t.

        1. 6.3.2.1

          the EPO allows software claims with a “technical” solution (whatever that means), even if it is based on “logic.” Do you see the EPO patent system exploding?

          The US patent and legal system is very different from the EPO system and is far more susceptible to abuse and applicant/patentee shenanigans which is why the inevitable problems created by logic patenting are worse here. That said, the EPO system would be far better off if it stopped granting logic patents.

        2. 6.3.2.2

          “Exploding” eh?

          Are you one of those “there are too many patents” anti-patentists?

          1. 6.3.2.2.1

            anon, you’ve got my post all wrong. By “exploding” I meant “falling apart.” MM keeps insisting that a patent system that allows claims based on logic will fall apart. My point is that there is no problem with the EPO patent system that I am aware of.

            1. 6.3.2.2.1.1

              Gotcha – my bad, pl.

      3. 6.3.3

        Patenting logic

        Software is not logic.

        How many times do we have to go over this? Can you obtain a copyright on logic?

        carried out by

        LOL – wait, are you admitting that the topic you really are addressing is some “application of” type of thing?

        Try to keep up son. There are real differences between:
        math
        applied math
        MathS (the philosophy)

    4. 6.4

      This case is in severe tension with a number of prior CAFC cases…

      True, but that problem is simply baked into the precedent by now. There really is no way to make Enfish, and Versata, and TLI Communications mutually reconcilable. Some precedent in that mix must be wrong for the other two to be correct. It necessarily follows, then, that each new precedent that comes along can only follow some but not all of those previous three, such that each new §101 precedent will necessarily conflict with one or another previous precedents.

      I suppose that this means that en banc reconsideration is warranted, but honestly, to what end? The confusion is not really of the CAFC’s creation, it is the SCotUS’ work. Even the en banc CAFC cannot overrule a SCotUS precedent, so there is no way to resolve the mess. We are simply stuck with a welter of unintelligible precedent until either (1) the SCotUS (really unlikely) or (2) the Congress (very unlikely, but more likely than #1) step in to resolve the issue.

      1. 6.4.1

        Yes, Greg, it’s good to see someone else here who has a good handle on the current situation. What a mess. And as I said in my prior post, I’m aware of some pending computer interface claims that went abandoned in view of 101 since it seemed unlikely to prevail on appeal. Under Core Wireless they are now magically statutory! But not under Apple v Ameranth.

        Some here may think I am anti-patent in my opinion that some subject matter (such as golf swings, etc.) should not be eligible. But I am not. In reality, a “middle ground” position is the only one that has any chance of being adopted. Otherwise, I think (unfortunately) all the cases will ultimately go the way of ineligibility over time.

        1. 6.4.1.1

          Your comment is awaiting moderation.
          January 26, 2018 at 1:55 pm
          If you have no principle other than “I feel,” then you ARE being anti-patent.

          You may be less extreme in being anti-patent, but your “means” are no different.

      2. 6.4.2

        Greg, good post. My longer reply got stuck again in the filter. If it doesn’t make it’s way out, at least I tried.

  6. 5

    En banc. Most defendants won’t have the stomach to grind all the way to the Supreme Court, but things are no better than they were in 2014. Sooner or later the court is going to have to lean into this mess.

    The claims are entirely abstract arrangements of “electrons” (not structure Night any more than this sentence has “structure”) and this “invention” such as it is should be protected by copyright, if at all.

    All this opinon does is raise prices and compromise competitiveness. Bad patents are far worse than no patents.

    1. 5.1

      Martin, organizing visual displays in a specific manner seems directed to an improvement to the computer system itself as oppose to a business method or the like where the invention is in the meaning of something.

      1. 5.1.1

        Ned how do you separate the functionality of a particular GUI from the artistic expression of that GUI? So we are to go forth where every non-previously used permutation of graphic design earns a 20 year right to exclude for the first person who draws it or “structures” information on a page? Freaking insane. These are basically linked diagrams- which have never been patentable subject matter and never should be.

        1. 5.1.1.1

          how do you separate the functionality of a particular GUI from the artistic expression of that GUI?

          In case that was a serious question, the answer is the easy one:
          Copyright pertains to the expressive aspect
          Patent pertains to the utilitarian aspect.

          MANY things obtain multiple benefits under the law, to each aspect goes the different type of IP protection.

          Freaking insane

          Your feelings are noted – as is the disassociation of those feelings from the law as written by Congress.

          which have never been

          Clearly, you are wrong. Your feelings otherwise do not change your being wrong into any semblance of NOT being wrong.

          1. 5.1.1.1.1

            The usual pedantry. The expression IS the function- that’s the point of the GUI in many instances. When ornamentation is literally functional, how does your impossible dichotomy work?

            Maybe the very concept of a GUI v. a character driven system, but if THAT can’t get a patent, how can every minor variation of menu design?

            We will see who is wrong in the end- en banc or Supreme Court, this is going to end up resolved sooner or later, because its intolerable.

            1. 5.1.1.1.1.1

              Pedant – expression is not utility.

              Both may exist, there even may be overlap. But if there is unity, guess what: no copyright.

              Learn the terrain that you want to engage upon.

              1. 5.1.1.1.1.1.1

                How about But if there is unity, guess what: no patent.

                Saves everyone millions of dollars. But that hardly matters when the purity of the patent right is questioned.

                1. With no unity you get both types of protection – and deservedly so.

                  Again – try to understand the terrain you want to play in.

      2. 5.1.2

        “where the invention is in the meaning of something.” Ned.

        That is a ridiculous characterization Ned. Just offensively simplistic and absurd.

        Come on.

      3. 5.1.3

        Nothing special about a computer display. They old. They display stuff.

        “Arranging” the layout of info ain’t inventing.

    2. 5.2

      because “arrangement of electrons” is without structure….?

      Shall we again visit the simple analogy of two sets of three resistors?

  7. 4

    Structure. Stop using 101 for 102/103/112. The most respected academics scoff at Alice and say it is nonsensical.

    Structure is not a witch.

    1. 4.1

      The most respected academics

      LOL Okay, Dernuld. You can stop tweeting now.

    2. 4.2

      Along with how you are using the term “structure” (which by the way has a multitude of optional claim formats that can be used to describe that structure), comes the patent doctrine of inherency.

      And along with the patent doctrine of inherency, comes the notion that software is NOT “magic.”

      New or changed capabilities do not occur “by magic” and do not occur with no actual physical change.

      A computing device with NO software has all the functionality of a paperweight or a heat generator.

      A computing device re-configured with the manufacture of software has a different functionality.

      This, of course, was the lesson of the Grand Hall Experiment (which remains an item that NO anti-software patent person has even come close to surmounting).

      And yet again, if we insist on inte11ectual honesty and the physics of the real world to guide the patent discussions (and corral the “feelings” of those who are anti-software patent), we can dispense with the chicanery of those (with their own and perhaps varied ideological drivers) who WOULD play the “witch” game.

      ALL participants in the discussion of patent eligibility for software should have to pass the basic inte11ectual honesty test. Otherwise it is not reality that they are peddling.

      1. 4.2.1

        New or changed capabilities [of a general purpose programmable computer] do not occur “by magic”

        Tell everyone how they occur, Billy. It must be a very important and technical process.

        So tell everyone what that process is. How does it begin, for example? You turn on the prior art general purpose programmable computer and … then what do you do?

        1. 4.2.1.1

          First: do you agree or disagree with the statement? And why?

          1. 4.2.1.1.1

            Nobody thinks that computers program themselves, except — apparently — for the dr0p 0uts who describe “new” information displayed on a computer monitor and confuse that description with “inventing.”

            1. 4.2.1.1.1.1

              What does any type of self-programming have to do with the issue here?

              Try again – stay on point.

      2. 4.2.2

        I did a Google search on “Grand Hall Experiment” and found mostly just your various comments which envoke the phrase. Can you provide a link or some reference for what exactly is the Grand Hall Experiment? I get the gist of it based on the context of use, but would appreciate the whole backstory.

        1. 4.2.2.1

          You might try less Google and try more of the archives of this blog.

    3. 4.3

      hahahahaha

    4. 4.4

      Night, as the evidence grows that the courts will find software inventions eligible so long as they are directed to improving machines, etc., why do you still resist? A claim to invention that is not directed to an improved machine, etc., is not statutory, period. The courts will find a way to nix it.

      1. 4.4.1

        Resistance is futile. Eh, Ned? Structure. Alice and Benson are absurd decisions. Just absurd.

        1. 4.4.1.1

          The Supreme Court likes it vague, for some reason. It likes defining a number of factors and giving them weight. Scalia didn’t like that at all — not really the law. The law needs a clear rule. Equity is about balancing and weighing factors.

          Night, what we know are the facts in the various cases and the final result. That is what is really important.

          There is no doubt that Benson and its “preemption” made no sense. All that is followed today is that math is not eligible unless applied.

          1. 4.4.1.1.1

            and the final result

            MORE B $.

            The ends do not justify the means, Ned. And the fact of the matter is that the Supreme Court is W A Y out of line.

            (by the way, software is not math – you SHOULD know that)

          2. 4.4.1.1.2

            Ned, I think you are doing a good job at coming up with a narrative that would help the courts find a way to limit information processing. I completely disagree with you that this should be done and I think you are disingenuous in not admitting you are doing this for money.

            Nonetheless, your narrative is good (which is bad for my side.)

            1. 4.4.1.1.2.1

              Ned’s “narrative” can be more plainly put in that the Supreme Court is addicted to its pre-1952 power to use common law and put its collective fingers into the wax nose of 101.

              What he does not do – and this is NOT good for “his side” is recognize the absolute mess of the law that such mashing of the nose of wax of 101 has resulted in.

              ALL of this consternation is directly traceable to the Supreme Court and its machinations to hold onto something that Congress removed in 1952.

              You want to see Ned’s “narrative” fall apart? Push him on the particulars of the Act of 1952 and the fact that Congress has been awaken by a virulently anti-patent Court of the 1930’s and 1940’s.

              It’s not like he has not been led down that path with painstakingly provided details before (I know, because I was the one that attempted to take him down that path, baby step by baby step).

            2. 4.4.1.1.2.2

              Actually, Night, I have no irons in this fire except the Federal Circuit and its handling of MPF. I think they are much too crabbed in their handling of old elements functionally expressed.

              When State Street Bank first came out, I was simply puzzled how the Federal Circuit thought it could get away with what it was trying to do. I was right. They did not get away with it. But when Bilski went up to the Federal Circuit en banc, at first, I didn’t even follow the case because it very little affected my practice. It still doesn’t, as I deal in hardware, not software. But the topic fascinated to me, and I enjoy the discussion.

  8. 3

    These limitations disclose a specific manner of displaying a limited set of information to the user, rather than using conventional user interface methods to display a generic index on a computer.

    What the claim says is “wherein the application summary displays a limited list of data offered within the one or more applications.”

    I suppose that limits the claim to, you know, less than all the data, but I wouldn’t call that a specific manner of display. It sure *seems* like an index conveyed in the conventional ubiquitous manner of a computer menu. Regardless, “a limited list of data” certainly doesn’t distinguish it from an index. Could you imagine if someone tried to patent a contacts list “on a computer” and differentiated it based on the contact profile having “a limited list of data about the person,” as if not including that someone has blue eyes and likes long walks on the beach renders the profile not part of an index?

    I guess it doesn’t matter as its clearly obvious. There isn’t a claim to a particular novel piece of data, so it’s just a rearrangement of conventional data on a conventional technique of displaying data (a menu) for expected results. Good example of how the office can cause trouble by letting low quality patents through by applying the “if 3-4 references needed to reject, allow” rule.

    The disagreement between the majority (Moore & O’Malley) and Dissent-in-Part (Wallach) comes over the definition of the claim term “unlaunched state.” The majority construed the term as “not displayed” while the dissent argues that it should be construed as “not running.”

    Good thing we have experts like the CAFC here, because not only any person of skill but even any person born after 1980 would tell you different.

    For its part, the majority explained that the patent used the word “launch” in several instances to be synonymous with “displayed” – thus leading to its conclusion.

    That’s not the standard. The question isn’t what does it appear to be associated with. Words are given their plain meaning unless they conflict with the specification. The fact that you can launch a process which generates a display doesn’t make the launch and the display the same thing, any more than me consistently pointing out I put my key in to turn on my car engine doesn’t mean my engine runs on keys.

    If the patentee intended “unlaunched” to mean “not running,” it knew how to express as much.

    Only a CAFC judge is special enough to look at a claim which uses the word “display” *five* times in conjunction with “unlaunched” and write a statement that “if the patentee intended unlaunched to mean “not running” it knew how to express as much.”

    1. A computing device comprising a launch screen…

    1. 3.1

      “The presently disclosed embodiments offer, in one implementation, a snap-shot view which brings together, in one summary window, a limited list of common functions and commonly accessed stored data which itself can he reached directly from the main menu listing some or all applications. This yields many advantages in ease and speed of navigation, particularly on small screen devices. For example, a user can get to the summary window in just two steps—first,launch a main view which shows various applications; then, launch the appropriate summary window for the application of interest. This is far faster and easier than conventional navigation approaches. Once the summary window is launched, core data/functionality is displayed and can be accessed in more detail and can typically be reached simply by selecting that data/functionality. Hence, only three steps may be needed from start up to reaching the required data/functionality; navigating from between each step is clear and straightforward.”

      It looks like launch is used synchronously with display to me….

      link to google.com

      1. 3.1.1

        That’s a pretty quote from the spec, but if you evaluated *the claim* for the same associative markers you’re applying to the spec you’d get the opposite answer:

        1. A computing device comprising a display screen, the computing device being configured to display on the screen a menu listing one or more applications, and additionally being configured to display on the screen an application summary that can be reached directly from the menu, wherein the application summary displays a limited list of data offered within the one or more applications, each of the data in the list being selectable to launch the respective application and enable the selected data to be seen within the respective application, and wherein the application summary is displayed while the one or more applications are in an un-launched state.

        If display = launch, the claim doesn’t need to use the word “launch” as its already used “display” multiple times.

        Then consider the claim as the CAFC would construe it:

        “display on the screen a menu listing one or more applications [] display on the screen an application summary [] wherein the application summary displays a limited list of data [] each of the data in the list being selectable to display the respective application and enable the selected data to be seen within the respective application, and wherein the application summary is displayed while the one more applications is not displayed.”

        Is it possible to “enable the selected data to be seen within the respective application” by “displaying the application”? No, of course not. You need to start (i.e. launch) the application in order to enable the selected data to be seen within the respective application.

        But the above is beside the point – It doesn’t matter what the patentee intended, the plain meaning applies unless the plain meaning would cause an inconsistency. Claim 1 as written, which launch meaning launch, has internal consistency. Nothing within the specification defeats that consistency, and the specification does not define the term as something else. The CAFC is trying to create a 112b issue where none exists.

        1. 3.1.1.1

          Claim 1 as written, which launch meaning launch, has internal consistency. Nothing within the specification defeats that consistency, and the specification does not define the term as something else.

          Yup.

      2. 3.1.2

        launch the appropriate summary window for the application of interest.

        Like it was written by a three year old.

    2. 3.2

      Protip for practicioners: If you use a word that describes a quality, like “healthy” and you want to express its non-appearance, you can put the word “not” in front of it – “not healthy.” This trick applies almost universally!

      You can even (despite it often being grammatically incorrect) just put an un- or an in- in front of the word (“unhealthy” or even “inhealthy”).

      Conversely, you can use a word whose plain meaning is the opposite of the word you previously used, like “sick” or “ill.” Take care with this latter act, because the two states do not always fill the breadth of the entire condition. It’s possible, for example, to be unhealthy while also being not sick.

      What you can’t do is use the opposite of a word that is associated with the first word, but isn’t the first word. For example, many healthy people work, and thus are employed. But you can’t say “unemployed” when you mean “unhealthy” or “sick.” Sick and unemployed are two different things, regardless of the strength of the correlation between health and employment. Even if all healthy people everywhere were employed, being unemployed does not make one sick, nor does being sick make one unemployed.

      The fine attorneys for Samsung obviously forgot this fourth-grade logic truism, and thus had to deal with a frivolous attack on their claim. Fortunately, the CAFC, in their wisdom, could see through this clearly unintended diction and were able to divine the proper meanings in this case.

    3. 3.3

      Could you imagine if someone tried to patent a contacts list “on a computer” and differentiated it based on the contact profile having “a limited list of data about the person,” as if not including that someone has blue eyes and likes long walks on the beach renders the profile not part of an index?

      That’s very easy to imagine. In fact, it sounds like a typical patent claim describing a “new” “app”.

      Remember: these are the same “skilled artisans” who will argue that presenting a sub-list of stuff that a user did not select from a larger list is “totally different” from presenting a sub-list of stuff that the user did select. Got that? “Totally different.”

      That’s the universe these guys operate in. Unfortuntely for them, they don’t have any other choice. Logic is, well, logical.

      Computer displays … display stuff. There’s nothing unexpected or unpredictable or “inventive” about writing a sentence that describes some “new” information that is put in front of a user’s face. But darn those machines are so shiny and look it fits right in your hand so let’s all pretend we were born yesterday. OMG look at that car! It parked itself without a driver and only caused some minor scrapes to the legacy vehicle. Miracles will never cease.

    4. 3.4

      the “if 3-4 references needed to reject, allow” rule.

      Wow. Things must be very different in your art unit than in the ones that I know. Nobody blinks at a four reference obviousness rejection in the applications that I handle. If one alludes in one’s response to the large number of references necessary to make the rejection, that argument gets nothing more than a pro forma quotation from MPEP §2145.V (“Reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention”).

      1. 3.4.1

        Things must be very different in your art unit than in the ones that I know. Nobody blinks at a four reference obviousness rejection in the applications that I handle.

        Neither do I, because the number of references is irrelevant legally. But if I tire of rejecting something I can be sure that if it took me four references to reject the independent, that independent will be deemed allowable if I no longer want to do the work of rejecting it. I come to it with a viewpoint on having to have a rationale beyond “aggregating a bunch of known uses” and others do not – others do, as the office teaches you when you arrive – that you should get to allowance as soon as possible.

        The fact that the defendants only missed a 102 because the CAFC pulled some ridiculous claim construction (which I assure you the examiner did not) shows how easy a 103 this was. This claim smells of a person who was following office guidance to make our shareholders happy by compacting prosecution.

        1. 3.4.1.1

          if I no longer want to do the work

          LOL – anyone else see the real problem here?

        2. 3.4.1.2

          “compact prosecution” does NOT mean ANY type of rubber stamping.

          Be that rubber stamping Accept Accept Accept
          Be that rubber stamping Reject Reject Reject

          Do your Fn job.

  9. 2

    the invented approach here is an eligible improvement to a computer system rather than simply the use of computers as a tool.

    This is a meaningless distinction given the CAFC’s own precedent.

    1. 2.1

      This is a meaningless distinction given the CAFC’s own precedent.

      Your statement is indefinite.

      Seriously though, the hand-waving that goes on between the statement “simply the use of computers as a tool” and the statement “improvement to a computer system” should be eliminated when one considers that to use ANY improvement to a computer system that derives from software, one MUST first change the pre-existing computing system by loading and re-configuring that pre-existing computing system WITH the software.

      No one anywhere – and I mean absolutely no one – has ever been able to “magically” just use a computing system without that first step of changing the system to add the computer system component of software.

      The “meaninglessness” that you appear to be whining about does NOT go in your favor, Malcolm.

      1. 2.1.1

        first step of changing the system

        aka known as typing instructions.

        1. 2.1.1.1

          typing instructions

          ..and tell me again how in a conversation with David Stein you stuck your foot in your mouth by admitting (against your interests) that you knew and understood the exceptions to the judicial doctrine of printed matter.

          You seem to be dissembling contrary to your own admission (again).

          1. 2.1.1.1.1

            I understand the so-called “doctrine” better than you or David and that’s always been the case.

            [shrugs]

            Seriously, do you want me to run circles around you again? In front of everybody? While you defend *this* miserable pile of cr@p claim?

            LOL

            Just ask, bro’.

            1. 2.1.1.1.1.1

              LOL – you running circles, even as you are afraid to engage in a conversation on the merits.

              Way too funny.

              While you defend *this* miserable pile of cr@p claim?

              No such thing. Let me remind you yet again that I am not diving into the weeds for you and defending ANY particular claim.

              My comments are geared to the law – and NOT to the level of the minutia that you want to kick up dust with.

              and that’s why you do not engage in anything remotely resembling inte11ectual honesty with the points that I present.

              As usual for you.

      2. 2.1.2

        anon, the idea that loading a program by itself is sufficient to confer eligibility on claim is like the idea that the Titanic is still a viable and working cruise ship.

        1. 2.1.2.1

          You seriously need to grasp what it means to “load a program.”

          1. 2.1.2.1.1

            Define “it.”

            Without knowing what “it” is, I have no idea what you mean. However, if you are speaking about what “you” mean, just come out and tell us what you mean.

            1. 2.1.2.1.1.1

              STOP being pedantic.

              The “defining of it” has ALREADY been put to you: see the Grand Hall experiment.

              Let’s have you try some inte11ectual honesty instead Ned.

              1. 2.1.2.1.1.1.1

                How can we have a conversation if neither I, nor any reader, knows what you are talking about?

                1. More B$ from you Ned.

                  I have provided MANY times clear, concise and even elegant explications, and have invited you to discuss the merits in an inte11ectually honest manner.

                  ALL we see from you is obfuscation, dust-kicking, and when pressed, running away.

  10. 1

    The disagreement between the majority (Moore & O’Malley) and Dissent-in-Part (Wallach) comes over the definition of the claim term “unlaunched state.”

    Because that’s a really technical term! So difficult. Nobody has any idea what it could possibly mean in the context of programmable computers.

    The majority construed the term as “not displayed” while the dissent argues that it should be construed as “not running.” …[T]he majority explained that the patent used the word “launch” in several instances to be synonymous with “displayed” – thus leading to its conclusion.

    LOL “Several instances”! Very serious stuff.

    Odd that this critical terms was left undefined. But then again we’re dealing with inexperienced children here. The s0 fties w0 fties need a lot of hand holding.

    The changed construction result would likely impact both the infringement and anticipation conclusions.

    And also the eligibility analysis because the relationship of the claim to the prior art is necessarily changed. This is easy stuff, Dennis. Educate your readers.

Leave a Reply

Your email address will not be published. Required fields are marked *

 Notify me of followup comments via e-mail.

You can click here to Subscribe without commenting

Add a picture