The recent non-precedential opinion of Automated Tracking Solutions v. Coca Cola provides something of a backstop to AATRIX and Berkheimer. The ATS panel includes Judges Moore and Stoll – the two leading judges pushing for more formality in considering factual conclusions underlying an eligibility decision. In ATS, however, the panel affirmed a district court judgment on the pleadings that the asserted patent lacks eligibility. The panel restated its prior conclusions that “patent eligibility under § 101 is a question of law that may contain underlying issues of fact.” However, in this case the court found no material facts in dispute.
The four asserted ATS patents are all directed to “inventory control” processes using RFID technology. U.S. Patent Nos. 7,551,089; 7,834,766; 8,842,013; and 8,896,449. RFID chips include a transponder that is then identified by a reader that receives a signal via an antenna.
Claim 1 of the ‘766 patent is listed below:
1. A system for locating, identifying and/or tracking of an object, the system comprising:
a first transponder associated with the object;
a reader that is configured to receive first transponder data via a radio frequency (RF) signal from the first transponder;
an antenna in communication with the reader and having a first coverage area;
a processor coupled to the reader, wherein the processor is configured to receive the first transponder data from the reader and to generate detection information based on the received first transponder data, the detection information comprising first sighting and last sighting of the first transponder in the first coverage area; and
a storage device that is configured to store the detection information.
In reviewing this claim, the District Court followed the Alice/Mayo two step framework asking first, whether the claim is directed toward an ineligible abstract idea and if so, whether the claim also includes an inventive step that goes beyond the ineligible aspects to transform the whole into an eligible invention. On appeal here, the Federal Circuit has affirmed. The results:
Step 1: The claim is directed to the process of collecting data, analyzing the data, and determining results based upon the analysis. As stated, that process is an abstract idea.
Step 2: Recognizing that RFID technology was known at the time, the claim adds no inventive step beyond the abstract idea.
The patentee attempted to establish a disputed factual question – whether the RFID technology as used in the claims was “routine and conventional” at the time. In Berkheimer, the Federal Circuit determined that issue to be a question of fact. Here, however, the patentee had failed to make plausible factual allegations in its complaint sufficient to create a dispute here. “The complaint alleges nothing to support ATS’s contention that RFID was a developing technology Nor does the complaint allege that any o the hardware components in the representative claims–either alone or in combination as a system–are anything but well understood, routine, and conventional.” Rather, the specification of the patent states that RFID systems are known and can be quite simple.
Dismissal affirmed.
= = = =
As an aside, I’ll ask why this case was released as non-precedential while the two parallel 101 cases mentioned above were deemed precedential. Professors Lemley and Gugliuzza (BU) have accused the court (members of the court) of attempting to shift the rule by hiding precedent. Can a Court Change the Law by Saying Nothing?
= = = =
And, you have to love the drawings in the patents. You’ll notice the typical corporate shelf in figure 4 above that includes typical documents and files along with weapons, money, and narcotics.
Soooo, where is indisputable the evidence of a computer storing the first and last tracked location of an object? I missed that.
I just rewrote the claim after skimming the specification. If there is not support for
then there is a 112 issue separate from any question of 101-eligibility.
The written description, diagrams, and claims of this issued patent are generally not bad by my standards, but ‘766 Patent Claim 1 does fail by my analysis of 101-eligibility that I describe in a series starting with Administer–”Do Standard Detection”–”Modify Administration” Method Claims and 35 USC § 101 Eligibility Analysis (Part I: Vanda and Prometheus). Part 1 focuses on pharmaceutical issues. Part II may be more relevant to the issue of the abstractness of ‘766 Patent Claim 1.
Anon warns me not to inject non-legal reasoning into the discussion of eligibility, but when I discuss eligibility, I view the patent agent — me — as comparable to a surveyor and Kant’s epistemology as comparable to a modern theodolite. If I were a surveyor, I would not restrict myself to a peg, rope, and groma just because land court judges of the past were familiar with such tools. I would use the most up to date tools that are appropriate for today.
I would have put together the written description slightly differently and would have added some more drawings.
I would have written a claim like the one below. (Actually, I would probably have started with a method claim.) I believe the claim below achieves eligibility by the example of In re Lowry.
I am most curious about Malcolm’s opinion of this claim. I believe it is 101-eligible (with appropriately modified written description) even if it may be in this more precise formulation either anticipated or obvious.
I hate “and/or,” “misplaced wherein,” and confusing use of ordinals.
Note the use of at least, each, same, such, selfsame.
Because of the nature of English grammar, I try to write claims in the singular as far as possible.
Two cars may have the same engine, but I have to remove one engine from the one car and put it in the other car if the latter car is to have the selfsame engine that the former car had.
A Porsche has a high performance engine while an Aston-Martin has such a high performance engine, it almost certainly has neither the same engine that the Porsche has or the selfsame engine that the Porsche has.
I will read your latest edition, and hold off on making any comments such as “the man with a hammer sees more nails”
Sorry Joachim – only made it a third of the way through before the hammer fest became overwhelming.
I “get” where your forte is.
The law simply is not built around your paradigm. In trying to “make it fit,” you have to warp it (both the law and the irreconcilable and self-conflicting Court decisions). You end up with something that simply is not a reflection, but a massive transformation.
Reconciling the irreconciliable is more or less what I must do either during patent prosecution or when providing expert consulting in patent litigation. It is also in a sense what I do as an engineer because I am usually hired to debug or to fix something after everyone has given up.
Is any of the discussion of Vanda v West-Ward of value.
I apologize for preliminary whining. I have had an exceptionally bad 5 months.
I do think we should all thank Sarah Kagan for pointing out Vanda v West-Ward.
I will try again over the weekend.
Joachim, if you go down the path of trying to make sense of 101 jurisprudence, then you have lost. It does not make sense and trying to make sense of it is like trying to make sense of tests of whether a woman is a witch.
If you want to understand 101 read Chisum’s paper on Benson. Benson is the core of ev1l of all of patent law. And, read everything that J. Rich as written about 101.
That is all you need. The rest of it is pulling in 112, 102, and 103 into 101, or using equity where the judge is assumed to be an expert in the field.
Plus, under Alice it is easy to hold your claim ineligible. Directed towards: pick your poison. I’d say recognizing “locating, identifying, and tracking objects”. Step 2: all old and well-known. Not eligible.
What you are doing is trying to get around 101 by putting down the details of the steps and the hardware that would be necessary. This gets around the PTO, but not the courts.
Start by understand why Benson is a really bad opinion. Read what Chisum says and what J. Rich says.
I have to try to persuade an examiner from the MPEP.
I go to MPEP 2106 to apply the Alice-Mayo test.
At step 1 I follow the yes path (a system is eligible).
At step 2a I follow the yes path because locating, identifying, or tracking constitutes an abstract idea (judicial exceptions).
At step 2b I choose the yes path because my claim 1 unlike the actual claim 1 recites significantly more because the system creates a data structure in memory (statutory manufacture) and then writes it in a record in a database (statutory manufacture) in a storage device.
I may succeed with the examiner to get past 101 eligibility. It is better than arguing unconventionality of RFID technology (first patents: Mario W. Cardullo and Charles Walton in 1973).
I have some qualms.
MPEP 2106 does not mention In re Lowry. MPEP 2106 does mention In re Warmerdam but only in the following sentence.
A lot of work went into MPEP 2106. I hope the treatment of In re Lowry and of In re Warmerdam is merely an oversight. Both precedents are critically important to the patent-eligibility of a computer implemented invention (CII). Otherwise I would have to conclude the USPTO is secretly attempting to make substantive law in order to render any CII ineligible.
Here is a telling passage from Interim Guidelines for Examination of Patent Applications for Patent Subject Matter Eligibility from United States Patent and Trademark Office OG Notices: 22 November 2005.
The guidance discusses both case law precedents further.
As far as I know, neither precedent has been overruled either by SCOTUS or by CAFC.
Part III of my document (Administer–”Do Standard Detection”–”Modify Administration” Method Claims and 35 USC § 101 Eligibility Analysis (Part III: Kant, Alice, and Mayo)) discusses both cases. The document may be worth reading even if it is somewhat whiny. (I will fix that problem. I was stuck for 5 months in my apartment because of a middle ear problem. It would make anyone whiny.)
Because
1) a good number of senior USPTO officials are almost certainly crooks (I have a lot of internal USPTO emails, which were never meant to become public) and
2) a good number of APJs are clowns willing at the behest of the crooks
a) to declare essential features of the English language to be indefinite or
b) to lie in written decisions for the purpose of materially affecting appeals to the CAFC (criminal violation of 18 USC 1001),
it is worthwhile to be prepared for 35 U.S. Code § 141 – Appeal to Court of Appeals for the Federal Circuit.
Merely an oversight?
Don’t count on it. But take heart: the MPEP does not have the force of law. I have successfully countered many “snippets” of case cites that are boiler-plated out of the MPEP and simply do not hold what the MPEP wants the snippet to hold.
I’d have to look at the rejection. But, I’ve only had a problem with 101 maybe twice outside of 3600.
I would ask the examiner if he/she has a suggestion for overcoming 101. Plus, I would focus on the 102/103 issues. Get the 102/103 out of the way and they always seem to find some way to get around 101.
You are doing too much work.
Nowadays, I not only try to bring an application to issuance, but I try to make sure that the issued patent claims are as immune or resistant to post-grant review proceedings as possible.
I recommend that a patent owner
a) review any patent for possible post-grant challenge before attempting to enforce patent rights in federal district court and, if necessary,
b) inoculate the patent claims via reissue application.
Indeed it is all a lot more work (and more expensive), but the environment of the US patent system has become a lot less favorable to the patent owner.
“And, you have to love the drawings in the patents. You’ll notice the typical corporate shelf in figure 4 above that includes typical documents and files along with weapons, money, and narcotics. ”
Dennis, it also says container of evidence. I think it is clear to everyone else from looking at the drawing that this is tracking of objects in law enforcement evidence rooms–sorry to burst your bubble.
Oh yeah, an antenna is definitely abstract. *Everybody* knows that. Can’t hold an antenna in your hand, you know.
Comments like this only demonstrate to everyone that you have absolutely no clue about subject matter eligibility and the legal analysis for evaluating where a claim is eligible.
It might sound great in your echo chamber over at Big Jeans place but it just lands with a big thud here.
And that’s not going to change. So maybe think about stepping it up, or just clamming up if you have nothing to add except drivel.
“stepping it up, or just clamming up if you have nothing to add except drivel.”
The irony is absolutely stultifying.
By the way, I’ve never seen AM at “big gene’s,” so your obsess10n needs to be tucked back in.
I didn’t hear any thud. I think its a perfectly valid point. The pronouncements of this Court are absurd.
Abstract was supposed to mean that it was not enabled.
Something like make a machine with fewer parts but that functions the same.
That was what abstract was meant to cover.
“Abstract was supposed to mean that it was not enabled.”
Citation please.
I can give you a citation directly from Alice that clearly states something else. But you already know that citation.
I don’t have a citation. I am sure long ago that when I read all the patent cases I could find that one of them said that. It may have been from England.
I am still looking for the citation.
no problem, Night Writer – I can guarantee you that my citation is not only far more relevant, it is also very much closer in time to the current mess that the Supreme Court is making out of patent law.
“I didn’t hear any thud.”
I heard a thud.
It was Malcolm though.
Anything interesting going on in Missouri politics these days?
LOL
Forcing a defendant to burn their JMOL card for a 101 inquiry (held repeatedly by higher courts to be a “threshold issue”) is a total waste of resources and inherently unfair. A 12(b)6 motion for 101 is inherently unfair to the plaintiff, who can get zero facts into the record (unless it’s being fudged, which happens all the time) or totally unfair to the defendant, because the assertion of any fact by the plaintiff must be considered true, and should kill the motion with trivial ease.
“patent eligibility under § 101 is a question of law that may contain underlying issues of fact” is the identical situation with claim construction, and speaks again to the absolute appropriateness of using the Markman procedure as both the eligibility and construction step.
Maybe Congress should just write that into the FRCP. Or maybe the Supreme Court will do so constructively once one or more of these cases winds up there….
MS a 101 inquiry (held repeatedly by higher courts to be a “threshold issue”)
Let’s be clear: it certainly can be a threshold issue (e.g., if it’s visible at the threshold) but it’s not necessarily only a threshold issue.
It’s perfectly reasonable (and not uncommon) for an eligibility problem to be most apparent and readily disposed of only after claim construction, discovery, and an analysis of the relationship of the claim to the prior art.
But that’s not always the case. In some cases the eligibility problem is so severe and apparent that it stinks up the entire courtroom and the courtroom down the hall.
Given these facts there is no reason for a “one size fits all” prohibition on finding ineligibility at the pleadings stage, nor an absolute requirement that 101 can be raised only “at the threshold” (whatever that means). And — for clarity — I note again that this latter requirement does not exist. Which is a good thing.
Sure, hard not to agree that it’s perfectly reasonable (and not uncommon) for an eligibility problem to be most apparent and readily disposed of only after claim construction, discovery, and an analysis of the relationship of the claim to the prior art.
But dayum it’s expensive. And I’m pretty sure that many, many times that inquiry could be competently handled within the Markman context.
“But dayum it’s expensive. ”
So of course that means that the law should be sacrificed, and like a nose of wax, mashed so as to make it “easy” or “convenient” or “cheap.”
No.
Wait.
We’ve had this discussion before.
No, it means court procedure should be updated to improve judicial economy in ways that are perfectly in accord with developed doctrine on the matters at hand. You have a problem with that?
Not at all – as long as THAT does not violate other Constitutional protections (including, but not limited to the Separation of Powers).
And yes, I KNOW that YOU have a problem with that.
>>Forcing a defendant to burn their JMOL card
The point is that they never should have had a JMOL card.
Dennis I’ll ask why this case was released as non-precedential while the two parallel 101 cases mentioned above were deemed precedential.
Does this question really need to be asked? We all know the answer. We’ve been watching this asymmetry in real time for years.
Best part: while this is going on, the maximalists are shrieking about the PTO “taking a mile” when given an inch.
As I noted already, I highly doubt that Moore and her minority of teary-eyed “app”-worshippers on the CAFC are playing some kind of “long game” here. They just have sympathy for certain junk-wielding patentees and not others and they want to be able to help those junk-wielding patentees by any means necessary.
Those means will necessarily include, of course, relying heavily on absurd falsehoods that the CAFC itself has created for the sole purpose of keeping the farce of logic patenting on life support. So soon enough (assuming it hasn’t happened already) we’ll be seeing “factual disputes” created out of thin air as to whether a “data file” or a “list of rules” or an “algorithm” (which can be described in any manner) or “virtual object” has a “non-conventional” ….. structure.
This will get to the Supreme Court soon enough. And then the hammer is coming down.
“and not others ”
You mean the public?
“and not others ”
You mean the public?
Well, that too, to a large extent. But I was referring to “other patentees”. You know, the ones who have the “cool” apps that Judge Moore’s kids like.
Maybe the shelf is in a police station, where they store the contraband seized from criminals.
“The claim is directed to the process of collecting data, analyzing the data, and determining results based upon the analysis. As stated, that process is an abstract idea. ”
I’m sorry, why is that an abstract idea?
Why is putting reactants in a reaction chamber, heating and stirring the reactants and withdrawing the results from the chamber not an abstract idea?
” Recognizing that RFID technology was known at the time, the claim adds no inventive step beyond the abstract idea. ”
Oh I see, its abstract because we say it is old….
If its old, why wasn’t it rejected under 102?
Les, with his head deep in the sand: “The claim is directed to the process of collecting data, analyzing the data, and determining results based upon the analysis. As stated, that process is an abstract idea. ”
I’m sorry, why is that an abstract idea?
Well, just for starters, that’s something you can do entirely in your mind. That’s a huge class of ineligible abstractions right there. There’s no structure to it, and there’s no objectively describable physical transformation of matter. (this latter sentence applies to all logic, by the way)
” Recognizing that RFID technology was known at the time, the claim adds no inventive step beyond the abstract idea. ”
Oh I see, its abstract because we say it is old….
No. This is a rhetorical game that you play all the time. You are intentionally confusing the conclusion of the claim analysis with an intermediate step. The conclusion is that the claim is ineligible. The claim is ineligible because it describes an ineligible abstract process (see above) and fails to add anything more to that process beyond the recitation of prior art technology that existed for the purpose of carrying out this ineligible process.
why wasn’t it rejected under 102?
It could have been rejected in all kinds of ways. It was rejected on the pleadings under 101 because it was fast and easy to do it that way.
I’ll say it again: every time that a patentee presents a claim with a data processing component being relied on for novelty, there is a serious eligibility issue in that claim. Period. That’s never going to change. Any defense attorney who fails to raise the issue in that instance is either committing malpractice, or you can bet that his/her hands are tied because the client is attempting to obtain or has obtained similar patents.
“. There’s no structure to it, and there’s no objectively describable physical transformation of matter. (this latter sentence applies to all logic, by the way)”
Of course there is no structure to it. The Court gisted all the structure out.
I notice you did not respond answer my question. A method is not abstract because a computing device is involved in the doing of it.
I notice you did not respond answer my question.
I notice that you can’t read.
A method is not abstract because a computing device is involved in the doing of it.
In the context of this discussion, this sentence is gobbledyg00k. You need to learn to write clearly or stop kicking up dust. I recognize that the latter is an important rhetorical strategy for defenders of logic patents. That recognition, of course, is the first step in a process that will end with you sitting in the corner facing away from the rest of the class.
Minnie Mouse’s responses are always good for a laugh. They don’t contain any more worth than their entertainment value.
“You need to learn to write clearly or stop kicking up dust. I recognize that the latter is an important rhetorical strategy for defenders of logic patents.”
Stultifying – as if “logic patents” is not the very “kicking up dust” and LACK of “writing clearly” that Malcolm Accuses Others…
Wow. Thanks for all the support.
In truth, 4.1.1 was accidentally posted before I had finished drafting it.
However, the question was in the original post….
“Why is putting reactants in a reaction chamber, heating and stirring the reactants and withdrawing the results from the chamber not an abstract idea?”
Isn’t Alice a two way street? The more you have “..gisted all the structure out…” , the more you have available to be ‘something more’.
For example, from the Wright brother patent, I can gist out everything to get to an abstract idea, but that leaves lots of structure in the ‘something more’.
Abstract idea: Change the shape of the flying-machine so that it does not tip over.
Something more: Change the shape of the plane by having lateral marginal portions capable of movement to different positions above or blow the normal plane of the body of the aeroplane, such movement being about an axis transverse to the line of flight
Well, the antennas, transponders and processor in this case would appear to be substantial components (not abstract) but they were not “something more.” So… no, not in practice.
Les,
they ARE “something more.”
However, I believe that you meant to say was that “they are not substantially more.”
Of course, that notion of what is meant by “substantially” is NOT DEFINED – and in fact is ultra vires as Congress nowhere included that item as a condition for patent eligibility. (all kinds of problems there: including, but not limited to: violation of Separation of Powers, violation against prospective and subjective future views, and violation of the Void for Vagueness doctrines).
So… the Court (in their ever “Supremeness”) simply fudged things, mashed the good ‘ol nose of wax, and essentially removed the statutory category aspect of 101 – as can be seen clearly here in this case where the “exception” swallows actual honest to goodness hardware that you can drop on your toe, and even describe in “objective physical structure” IF you wanted to take that optional path.
Now Ned has whined that actually adhering to the statutory categories (and not “Gisting” them away) is merely the scrivener trick of “nominalism.”
My view of that is that such is actually following the law as written by Congress.
And before the undies get all bunched by the usual people, let me remind those “folks” that 101 has always had two prongs:
the statutory category prong, and
the utility prong.
That is ALL that 101 was supposed to do.
Instead, the wax-addicted Court has insisted on breaking the score board with their attempts to continue to do what Congress str1pped from them in the Act of 1952 wherein Congress removed the power to set the meaning of the term “invention” by the tool of common law law writing and in its place opted instead to create the new section of 103.
And yes, this is an historical fact, so no, Ned is not free to pretend that such did not happen.
that notion of what is meant by “substantially” is NOT DEFINED
Seems pretty clear to me. At the very least, we know that it doesn’t include prior art technology like “an antennae”.
Wrong – eligible claims contain prior art technology all the time.
Stop lecturing others when you yourself can’t get the basics right.
“Isn’t Alice a two way street? The more you have “..gisted all the structure out…” , the more you have available to be ‘something more’. ”
An excellent point SR – and one that I have directly in front of an examiner who is attempting to use two different statements of what “the abstract idea” is.
He wants the “Gisted” one to reach a point where he can draw a parallel to an actual court case (he does not reach otherwise), and he then switches gears [in the abstract sense – see what I did there
] and uses a different, NON-Gisted statement of “the abstract idea” in an attempt to not deal with nearly a page of claim details.
I will let you know the response (if I remember to do so).
Only two? I’ve had them mumble and hand wave through 5 different assertions and implied assertions regarding what the alleged abstract Idea is and cite as many as 7 conflicting court decisions.
anon,
I’ve seen something similar, particularly when an examiner alleges that a claim is directed to a really broad abstract idea (like “comparing new and stored information and using rules”), and then tries to dismiss/ignore some of the claim recitation as an implementation of that super broad abstract idea. Here’s some random language I’ve used:
x. The fact that recited limitations can be characterized as a particular application of an identified idea cannot possibly mean that they can be ignored for the inventive concept analysis, as the eligibility inquiry itself is designed to distinguish between an ineligible idea and a practical application of an idea.
The Office Action seems to suggest that much of the claim recitation merely represents a particular implementation of a concept and can thus be ignored for purposes of the search for an inventive concept. However, the Supreme Court has made clear that Mayo “set forth a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice Corp. v. CLS Bank International, 573 U.S. ___, 134 S.Ct. 2347, 2355 (2014).
Given that the Mayo framework is focused on distinguishing between claiming an abstract idea and a patent-eligible application of an abstract idea, it seems abundantly clear that a specific combination of recited limitations which represent a particular application of an idea cannot be dismissed or ignored for purposes of determining whether the claim is claiming that idea or an application of that idea. The presence of the limitations which represent a particular application of the abstract idea itself evidence that the claim is claiming not the abstract idea itself, but rather that particular application.
This is in accord with the Supreme Court’s guidance in Alice to “consider the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Alice Corp. v. CLS Bank International, 573 U.S. ___, 134 S.Ct. 2347, 2355 (2014). This is even in accord with the PTO’s own guidance which is concerned with whether a “claim describes a process or product that __applies the exception__ in a meaningful way, such that it is more than a drafting effort designed to monopolize the exception.” Federal Register, Vol. 79, No. 241, p. 74624, col. 1, lines 58-66 (Dec. 16, 2014) (emphasis added). (FN – Applicant notes as an aside that it wouldn’t be enough to simply allege that the claim is a combination of multiple abstract ideas, as the Supreme Court has made clear that “in applying the § 101 exception, we must distinguish between patents that claim the `buildin[g] block[s]’ of human ingenuity and those that integrate the building blocks into something more”. Alice Corp. v. CLS Bank International, 573 U.S. ___, 134 S.Ct. 2347, 2354 (2014). The integration of multiple abstract ideas could well represent an inventive concept sufficient to signal eligibility. Notably in this regard, an inventive concept is itself by definition an “abstract idea”, but it can be characterized as an abstract idea that can properly be preempted, in contradistinction to abstract ideas that represent “`buildin[g] block[s]’ of human ingenuity”.)
Here, the claim recitation dismissed by the Office Action represents an “inventive concept” that evidences that the claim is claiming a patent-eligible application of the identified concept(s) of “x”, rather than any identified concept itself.
Great insight. I frequently note in my responses and briefs that although an examiner can certainly look at a claim and allege that it can in theory be characterized as being directed to an incredibly broad abstract idea, the Mayo/Alice test requires him or her to continue looking at the claim and determine whether the claim includes additional features to ensure that the claim is more than a drafting effort designed to monopolize that abstract idea.
In cases where the examiner alleges a really broad abstract idea, I’ll say something like “claim 1 was rejected under 35 U.S.C. § 101 as being directed to ‘x’, however, Applicant respectfully submits that it is abundantly clear that the claim includes additional features that ensure that the claim is not a drafting effort designed to monopolize this identified idea. For example, the claim recites …”
Not sure if correct. How is the following done “entirely in the mind”?
See claim below and notice the different elements required in the claim (e.g., “a first transponder associated with the object”, “a reader”, “an antenna”, “a processor” and “storage device”).
If not novel or non-obvious, okay. But to apply 101 here makes zero sense and ignores claim limitations, IMHO.
In the future, we’ll all look back on these decisions and laugh at them (e.g., recall the “old” clueless “flash of genius” test). Just saying.
1. A system for locating, identifying and/or tracking of an object, the system comprising:
a first transponder associated with the object;
a reader that is configured to receive first transponder data via a radio frequency (RF) signal from the first transponder;
an antenna in communication with the reader and having a first coverage area;
a processor coupled to the reader, wherein the processor is configured to receive the first transponder data from the reader and to generate detection information based on the received first transponder data, the detection information comprising first sighting and last sighting of the first transponder in the first coverage area; and
a storage device that is configured to store the detection information.
if you “Gist” hard enough….
“Well, just for starters, that’s something you can do entirely in your mind. That’s a huge class of ineligible abstractions right there.”
No it isn’t. You can’t collect data entirely in your mind. That would be … i dunno… daydreaming.
Furthermore, the claim is directed to a system with antennas and stuff. The claim is not directed to doing something in someones mind.
This is basic stuff.
For Malcolm:
LESS of “I’ll say it again:”
and MORE of:
stop, read and listen, understand, acknowledge, and incorporate.
Until you can do that, ALL of what you write is mindlessness.
“If its old, why wasn’t it rejected under 102?”
Les, stop asking good questions.
Attempt to salvage another item:
Your comment is awaiting moderation.
February 23, 2018 at 6:36 am
In light of the recent string of cases concerning the factual predicate to the 101 legal question, the question from Les is good, but there is a better one:
What is the evidence of the factual predicate (for 101) of conventional use?
Merely “old” does not suffice for the different factual predicate of 101 – you need more than merely “old.”
“Old” (with other factors, separate from the point here) may suffice for 102.
“Old” (with other factors, separate from the point here) may suffice for 103.
But even if the “old” PLUS those other factors were to be provided through the necessary showing of evidentiary support for either of 102 or 103, such showing may very well remain insufficient for the required showing for 101.
Here, however, the patentee had failed to make plausible factual allegations in its complaint sufficient to create a dispute here.
This is bizarre. The issued patent is not evidence that the claimed invention was patentable? Why and how would a patent owner have to plead more facts than that?
The issued patent is not evidence that the claimed invention was patentable?
Funny stuff floating in from deep in the weed patch out there in right field.
Have I mentioned lately how many strong similarities exist between the rhetorical/legal strategies employed by US ammo se x u als and the patent maximalists?
And it’s not a coincidence.
…as to Lemley, the fallacies continue to abound.
Including the fallacy that somehow precedential opinions “need” to be symmetric as to whether or not they are written when a patent holder prevails.
There is zero logical basis for that ASSumption, and what we see is simply more innate bias being shoveled out.
So while I “get” the appeal to Prof. Crouch (he is cited for his articles on Rule 36), there is no “there” there in the Lemley claptrap.
Lemley’s article is not worth anything.
Again.
And this is where it’s essential for sanctions to be handed down routinely to the patentees who lie.
Because they will lie. Routinely. They “don’t have a choice”, in their warped little minds.
This post coming from Malcolm: the irony is stultifying.
Do you have an actual response to the thesis that the composition of precedential decisions regarding post-Alice eligibility could altering the law, or do you want to keep playing with your strawman that Lemley says “precedential opinions ‘need’ to be symmetric”?
Knocking out the “basis” for the opinions being formed is not a strawman.
Do you want to ask your question again? Maybe this time use a correct term? Maybe realize that applying critical thinking and debunking the hogwash IS “an actual response to the thesis.”
The proper question is whether an appellate court’s marking of decisions as precedential needs to NOT be heavily skewed towards decisions in favor of patentees.
“anon” [the ASSumption precedential opinions “need” to be symmetric]
You’re the one making that “assumption”, derpwad. As Ben pointed out, it’s a strawman. That’s your favorite kind of man, other than the kind of man who parrots your inane cr @p.
The assertion of the contra-positive is a logical fallacy.
And no – what Ben points out is NOT a strawman.
Do I need to hold your hand and lead you through a definition, dot by dot (like I have in the past)…?
If it’s not straw, can you quote where Lemley asserts it?
Try reading the paper Ben and then using just a little critical thinking.
Then read what I actually posted: “Knocking out the “basis” for the opinions being formed is not a strawman.”
One does NOT need something to be a direct assertion in order for it to be “not straw.”
“No” would’ve been faster to type and wouldn’t have advanced your reputation as a weasle.