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.
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).
…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.
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.
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.
Agreed.
“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.
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!
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.
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.
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…
(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).
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.
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?
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.
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.
(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.
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.
Mandatory Jepson…
You – as a joke – writes itself.
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.
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.
And your take-away from Prometheus is simply wrong.
But you know that as well, eh Malcolm?
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.
MM, spot on.
Says the guy that ALSO wants a “mandatory Jepson” edict….
Ah, what a pair.
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.
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?
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.
“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.
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.
In the case of this kind of low rent g@ rbage, who cares?
Your feelings are noted.
It is a good question. How does Lotus fit into all this.
Did Alice render Lotus no longer good law?
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.
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…
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.
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.
This guy hates logic. And it shows.
i don’t think that claim falls under “logic.” it is clearly just an ineligible law of nature.
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.
Seriously patent leather, the last thing we need is another person with 19th century thinking.
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…
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.
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.
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.
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.
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.
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.
Martin, your conclusion is not supported by the premise. Just silly stuff from you.
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.
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.
Not sure why you assume Greg’s claim is obvious, Martin. It depends on the details of the claim.
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.
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.
Thanks Ned.
FINE ARTS FINE ARTS FINE ARTS.
But tell me, is stock trading among the useful arts? Sports betting? Online dating?
None of those things fall within the useful arts.
Why if it doesn’t include iron than it ain’t no stinking invention.
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.
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.
“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?
>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.
I was simply asking Greg his opinion. You may be unfamiliar with that process, as no one cares about your opinion.
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.
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.
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.
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.
“ 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?
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.