What are the Rules for Assessing Patent Eligibility?

In Front Row Tech. v. MLB Advanced Media, the patentee has filed a petition for writ of certiorari – asking the Supreme Court flip the lower court rulings on its sports-data-app patents. [Petition including Lower Court Decisions][Supplemental Appendix Including the Patents]

The petition asks two questions:

1. What are the rules, both procedural and substantive, for assessing patent-eligible subject matter under 35 U.S.C. § 101 for patents claiming inventions described as new and useful combinations of existing components and technologies?

2. Should the Federal Circuit be required to revisit its decision in this case in light of its Berkheimer and Aatrix Software decisions?

In this case, the New Mexico district court granted the accused infringer’s motion for judgment on the pleadings (R.12(c)) based upon the only evidence of record – the patents themselves. In making its decision, the court ruled that it was empowered to make a number of factual findings on the pleadings and without the submission of evidence — noting that “courts routinely make similar findings while evaluating§ 101 challenges.”  On appeal, the Federal Circuit affirmed without opinion.

 

Asserted Claim 15 of Patent No. 7,812,856 is shown below:

15. A method for displaying a particular perspective of a venue-based activity at least one authorized hand held device having a display screen, said method comprising the steps of:

simultaneously capturing a plurality of video perspectives of a venue-based activity utilizing more than one camera located at a sports and entertainment venue;

processing said plurality of video perspectives at a server into encrypted video data packet for display on a touch-sensitive display screen associated with said at least one authorized hand held device provided in the form of at least a smart phone or personal digital assistance, said at least one hand held device further comprising at least one 802.11 wireless module for access to a wireless local area network and a cellular communications module for communication with a wireless cellular communications network;

wirelessly transmitting said encrypted video packet over an 802.11 wireless local area network to said at least one authorized hand held device said plurality of video perspectives of a venue-based activity from said server;

processing said plurality of video perspectives at said at least one authorized hand held device into decrypted video data packet for display on said touch-sensitive display screen associated with said at least one authorized hand held device; and

displaying a particular video perspective on said touch-sensitive display screen, in response to a user selection of said particular video perspective from among said plurality of video perspectives.

The petition was filed by Michael Shore and his team at Shore Chan DePumpo

31 thoughts on “What are the Rules for Assessing Patent Eligibility?

    1. 7.2

      “That relationship is central to a rapidly advancing field in physics, quantum information theory. It posits a new thermodynamic perspective in which information and energy are linked—in other words, that information is physical,”

      New positations in a theoretical field do not establish that they are so.

      NWPA: See there’s this new positation in a THEORY (more like hypo-thesis, but we can be generous and say theory) so that means that information is physical, see you guys, see? That means that patents should cover information!1111 1eleventyone!!!!111

      Why are you constantly confuzzleded about physics NWPA?

    2. 7.3

      “That relationship is central to a rapidly advancing field in physics, quantum information theory. It posits a new thermodynamic perspective in which information and energy are linked—in other words, that information is physical,”

      New posita tions in a theoretical field do not establish that they are so.

      NWPA: See there’s this new pos itation in a THEORY (more like hypo-thesis, but we can be generous and say theory) so that means that information is physical, see you guys, see? That means that patents should cover information!

      Why are you constantly conf uzzle ded about physics NWPA?

      1. 7.3.1

        Do you want it both ways with the “laws of nature” concept, 6?

        It appears so.

        Please choose one.

  1. 6

    Cert denied.

    The first question presented in the petition is: “What are the rules, both procedural and substantive, for assessing patent-eligible subject matter under 35 U.S.C. § 101 for patents claiming inventions described as new and useful combinations of existing components and technologies.” Probably the dumbest way to phrase a cert question, ever. Effective cert petitions present narrow and focused questions but are phrased in a way to suggest broad applicability. A question saying, “golly gee, judges, what are the rules?” will get you nowhere.

    1. 6.1

      Probably the dumbest way to phrase a cert question, ever.

      Well, right.

      But these people aren’t exactly known for the legal skills or intelligence, generally.

      Heck, we’ve got people who’ve been running around here for years who still can’t tell the difference between a patent claim and an object falling within the scope of the claim. Or who can’t discern a difference between “a list of rules” and “a protein”. They “have no idea” what the term “abstract” means (“everything is abstract” <– actual script passage recited daily), even when examples are constantly being presented to them and … the word is in the dictionary. The still can't tell you what Prometheus v. Mayo was about even when the case has been broken down in the simplest terms to them a hundred times.

      Of course they're "confused". They always will be because they are the kind of m0 uth-breathing t 0 0 ls who believe they are entitled to whatever they ask for. If they don't get what they want, that "confuses" them. I mean, something must be wrong! Probably a brown person somewhere must be getting the benefit instead so we have to find them and kick them out of the country.

      1. 6.1.1

        If the dictionary definition were intended to be the one that the Court wanted, they would have said so.

        They said something rather remarkably different.

        Maybe try to have a clue about the patent issues here (instead of the Accuse Others meme of “aren’t exactly known for the legal skills or intelligence“.

        Stultifying.

  2. 5

    A lot of these scrivened claims have a cookie cutter format that is instantly recognizable. It goes like this: (1) Recite a preamble that is basically the entire invention, (2) throw in a bunch of obvious (and usually obviously necessary) prior art nonsense described in a manner that employs as much arcane and excessive verbiage as humanly possible in a vain attempt to give the claim the weight and (3) conclude with a result that is pretty much exactly what was described in the preamble.

    Hence:

    15. A method for displaying a particular perspective of a venue-based activity at least one authorized hand held device having a display screen, said method comprising the steps of:

    …[capture, process, transmit] and

    displaying a particular video perspective on said touch-sensitive display screen, in response to a user selection of said particular video perspective.

    Sure, let’s go to the Supreme Court with this! After all, the “select a perspective” arts will never improve otherwise, right?

    Patent maximalists who don’t understand 101 = children who steal other kid’s crayons

    1. 5.1

      displaying a … venue-based activity

      LOLOLOLOLOLOLOLOLOLOLOLOLOLOL

      “Venue-based”. Super techno!

    2. 5.2

      MM, interesting observation and probably correct. There seems to be an academy out there schooling patent attorneys on how to hide the ball.

      1. 5.2.1

        …as opposed to the (what is it now, less than .5%?) of claim writers employing Ned’s “preferred” “non-ball-hiding” Jepson claim format….

              1. 5.2.1.1.1.1.1

                My how circular you are.

                ‘Course, since your view is known to be biased and not in accord with the law as written by Congress, your statement is just not worth very much.

                1. But anon, at least I know that what I work on in otherwise patentable subject matter.

                2. in otherwise patentable

                  First, you appear to be messing up patentable and patent eligible.

                  Second, your “argument” is nothing more than the vapid Big Box of Protons, Neutrons, and Electrons fallacy.

            1. 5.2.1.1.1.2

              what is “the abstract arts” anyway?

              The “arts” where you apply logic to data (directly or through the use of a prior art machine).

              The arts where you think new thoughts about old data.

              Just for starters.

              Confused? Of course you are derp derp derp Big Jeans Sc ript derp derp derp derp.

              1. 5.2.1.1.1.2.1

                Your “prior art machine” “logic” needs to get by the patent doctrine of inherency.

                Let me know when you advance a cogent position that accomplishes that.

                (I won’t be holding my breath)

                think new thoughts

                Software is not the thought of software.

                At least try, Malcolm.

                1. So the usual dust-kicking and incoherency and strawmen in response to direct answers to your question.

                  We know the game your playing, “anon.” We can all see it. It’s transparent.

                  But pretending that “abstract” doesn’t mean anything at all to anybody is the sort of thing that an eight world would do when he realizes he’s backed himself into a corner. Truly p@ thetic but, hey, we understand why you throw tantrums. It’s a tough time to be a patent maximalist. And it’s only going to get worse.

                2. Your “prior art machine” “logic” needs to get by the patent doctrine of inherency.

                  Nobody has any idea what your talking about, Billy. “Inherency” isn’t that big of a word so it’s unclear why you think any of us would be impressed by it.

                3. So the usual dust-kicking and incoherency and strawmen in response to direct answers to your question.

                  More vapid Accuse Others….

                  Nobody has any idea what your talking about

                  followed by:

                  isn’t that big of a word

                  Apparently, it is too big of a word for you and your projected “nobody.”

                  Stultifying.

  3. 4

    Seems like they should be circling their wagons to petition the tribal immunity decision ruling instead…..

  4. 3

    Slightly off-topic, but worth noting given the (predicted) “retreat” from restraint shown recently by the PTAB (emphasis added):

    In this case, the New Mexico district court granted the accused infringer’s motion for judgment on the pleadings (R.12(c))… noting that “courts routinely make similar findings while evaluating § 101 challenges.

    The PTAB is not an Article III court and does not have the effective “substantive rule making authority” that an Article III court may have in the way of the tool of common law evolution.

    When “assessing” becomes more than a strict mirror image of what a “proper” Article III court has looked at and determined – vis a vis 35 USC 101 (including ALL factual predicate elements) – then that “assessing” may very well be beyond the power of the administrative agency of the Executive branch.

    This may be a fundamental flaw in the “procedural” aspect of how that same administrative agency of the Executive branch has adopted the Article III mechanism.

    Perhaps the “gift” of the “Gist/Abstract” sword is a weapon that the Separation of Powers precludes the Executive branch from wielding.

    It’s bad enough that the courts of Article III nature may be mashing the nose of wax of 35 USC 101 with a common law approach rescinded by Congress in the Act of 1952, but when that is compounded by a political agency unfettered by anything not of “first impression” within its own little fiefdom, we have the recipe for unmitigated disaster; and this type of question should be explicitly be being put to the Article III courts.

    1. 2.1

      I tend to agree – especially question 2, which is not particular enough as to why those CAFC decisions would call for a “revisit.”

      1. 2.1.1

        That’s probably a good thing. That’s a terrible claim, and bad claims make for bad law.

  5. 1

    Is the preamble of claim 15 correctly transcribed? I’ve read it several times and it seems as if a word is missing. The word might be “on” after –activity– and before –at least one–.

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