This Self Referencing Database is Not Patent Eligible

BSG Tech v. BuySeasons, Inc. (Fed. Cir. 2018)

On appeal here, the Federal Circuit affirms a lower court ruling that the claims of BSG’s three asserted patents are invalid as ineligible under 35 U..S.C.  § 101. U.S. Patent Nos. 6,035,294, 6,243,699, and 6,195,652.

The claims relate to indexing a database according to “relative historical usage information.”  Thus, in an automobile database with a “model” parameter, the system could display index by the popularity of the various models.  In the claims, the popularity is measured by prior users of the system.  Note here – the claims don’t technically require indexing by the frequency, only being able to access that information.

The patents here have been asserted in 50+ lawsuits – the vast majority of these cases settled up until E.D.Tex. Judge Schroeder ruled them ineligible.

On appeal, the Federal Circuit made fairly quick work of the patents finding:

  1. The asserted claims are directed to the abstract idea of considering historical usage information while inputting data; and
  2. The claims do not include anything beyond the abstract idea sufficient to transform the claim into a patent-eligible invention.

In making its determination, the court distinguished DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) — holding here that the use of historical information is not “rooted in computer technology.” “Whether labeled as a fundamental, long-prevalent practice or a well-established method of organizing activity, this qualifies as an abstract idea.”

Enfish was a similar case — also involving a self-referential database structure.  That case, the court determined that the focus was on database function and machine efficiency. Here, on the other hand, the historical information is stored just like any other data. “The claims do not recite any improvement to the way in which such databases store or organize information analogous to the self-referential table in Enfish or the adaptable memory caches in Visual Memory.”

Although the court recognized that underlying factual determinations may inform the legal decision of eligibility — especially whether the “something more” is merely routine application of conventional technology — a court is free to decide the issue as a full question of law if the only inventive concept identified in the claim is the ineligible abstract idea.

Here, the only alleged unconventional feature of BSG Tech’s claims is the requirement that users are guided by summary comparison usage information or relative historical usage information. But this simply restates what we have already determined is an abstract idea. At Alice step two, it is irrelevant whether considering historical usage information while inputting data may have been non-routine or unconventional as a factual matter. As a matter of law, narrowing or reformulating an abstract idea does not add “significantly more” to it.

Ineligiblity affirmed.

 

48 thoughts on “This Self Referencing Database is Not Patent Eligible

  1. 9

    Federal Circuit decides a database is patent-ineligible the same day the USPTO’s PALM database goes down impacting 15 systems.

    Now I have to fax file my arguments detailing unconventional features of a document scanner.

  2. 8

    A rule of law that requires a judge to characterize an invention and then judge that characterization is no rule at all. Imagine a judge distilling down a contract, reshaping it to the judge’s own language and opinion of key features, eliminating entire phrases, failing to take into account context or meaning to those in an industry or type of business (i.e., ordinary artisans), and then making a decision based on that characterization instead of applying objective criteria to the language and circumstances of the contract itself? And that characterization requires no evidence or reasoning based on evidence, as though the judge is able to give the claim the meaning that one skilled in the relevant field would give. Patent law, like all law, is about human relations. We will never know how a database programmer would have interpreted the claims in this case.

    The problem is not the outcome in this case. The problem is the subjectivity and arbitrariness of the decision making process and how that unpredictability impacts those who invest in innovation and progress.

    1. 8.1

      that characterization requires no evidence or reasoning based on evidence

      It’s ridiculous “hot takes” like this one that reveal how silly and desperate the maximalists are. There is plenty of reasoning in this case and no shortage of evidence. So it happens to be inconsistent with some other cases out there that make no sense? Well, that inconsistency was predictable and it was, in fact, predicted. It’s what happens when the CAFC goes out of its way to rescue a g@ rbage claim based on a “rule” that was created out of thin air and has no basis in reality.

      Reality = logic is ineligible subject matter.
      Reality = instructions are ineligible subject matter
      Reality = programmable computers for applying logic to data are old

      Start from the basic indisputable facts and work outwards instead of placing your desires first and then making up a fantasy world where your desires for a patent system that protects logic were somehow mandated. Because your desires were definitely not mandated. By anyone.

      The problem is not the outcome in this case.

      Oh, bal 0ney. If it was the opposite outcome and it was predicated on some made-up nonsense you’d be sitting quietly on your hands or waving your pom-poms around.

      We will never know how a database programmer would have interpreted the claims in this case.

      LOL Wrong. I just asked a database programmer about this decision and he agreed that it makes perfect sense. A claim that differs from the prior art only be virtue of the recitation of a type of information content (e.g., “historical usage information”) is always going to have severe eligibility issues.

      How can this basic stuff not be apparent and understood by alleged patent attorneys in 2018? The greed must be blindingly intense.

      1. 8.1.1

        MM, you define irrational judicial activism. “A claim that differs from the prior art … is always going to have sever eligibility issues.” So now 103 is 101. This is no longer law but witch trials.

        1. 8.1.1.1

          While Malcolm is but an extreme example, ALL those who see no problem with the Supreme Court and what they have done with 101 jurisprudence (along the line here of conflating 101 and 103), are in the same boat as denying what Congress did in the Act of 1952.

          The single jurist who most understood what happened in the Act of 1952 (because he helped write it), Judge Rich, was the one that turned the tide of Benson and Flook, by pushing back against insiduous dicta in those cases directly leading to Chakrabarty and Diehr.

          Sadly, no modern counterpart existed to brook the Supreme judicial activism of this “modern era” in which the form of innovation most abundant and most accessible has been attacked and denigrated.

          People really should look at the players and their philosophies of the history of this overarching issue.

          1. 8.1.1.1.1

            Anton, you are exactly right about the ’52 Act – eliminating the ‘gist, heart of the invention, inventive step, point of novelty, flash of invention, spark of x’ and all the other 2nd Circuit validity tests by breaking the analysis out into 101,102, and 103, to focus on the claimed invention and attempt to create an objective evidentiary standard. This is the most patent hostile SCOTUS since the early 70’s. What a mess they have created. Breyer being the worst and Thomas right there with him.

      2. 8.1.2

        Reality = programmable computers for applying logic to data are old

        Continuing to ploy canards that obfuscate is old.

        See the Grand Hall experiment.
        See the House/Morse reply.
        See 35 USC 101 (and any improvements thereof).

      3. 8.1.3

        Who is this guy? He must be new here. So many fresh ideas and insights!

    2. 8.2

      Yup Hierarchy. That is why I say it is like witch law. That is what they did with witches. Made up a word, witch. Then made up a test that had a tenuous relationship with real criminal law. Then the judge just privately decided guilt or innocence based on whatever they felt like thinking about with their moist warm clothe in their chambers.

    3. 8.3

      The problem is not the outcome in this case. The problem is the subjectivity and arbitrariness of the decision making process and how that unpredictability impacts those who invest in innovation and progress.

      You know, the inventors seem to have a good idea of what they think they invented before the lawyers get ahold of it.

      A lot of lawyers here seem to keep thinking that if lawyers lawyer hard enough they can polish a turd into a diamond, but the Supreme Court makes clear that eligibility does not depend upon the draftsman’s art. What you call “subjectivity and arbitrariness” a person of skill in the art (which is who this is all for) would call an attempt to hide what is a very poor novelty.

      In this case, the specification of the patents themselves described several pieces of prior art, and how they conventionally did things (which covers 90% of the claim language). It then described a problem the prior art had. It then tried to solve that problem. That pretty simply frames the issue. When it’s clear that most of the claim is conventional, consider rewriting the claim in Jepson format, and then asking if the court is being “subjective and arbitrary” in its analysis of claim language.

      Claim 1. In [a conventional system], an improvement comprising: providing subsequent users with the listings of previously used parameters and values, and corresponding summary comparison usage information.

      Here, the only alleged unconventional feature of BSG Tech’s claims is the requirement that users are guided by summary comparison usage information or relative historical usage information. But this simply restates what we have already determined is an abstract idea.

      Seems like a pretty unsubjective and non-arbitrary holding to me. The only “distilling” “restating” and “eliminating” that goes on is to remove the bs that the Specification admits the prior art conventionally did. Because the inventor screwed up? No, to un-screw the legal handwaving that occurred.

      This case isn’t even remotely wrong in either procedure or conclusion. Any confusion about the patentability of the claims occurred 100% because of the prosecuting attorney.

      1. 8.3.1

        I caught My Cousin Vinny on tv the other day, and I’m reminded of this scene, which I think prosecution attorneys would do well to think of, simply replacing a criminal case with a claim –

        link to youtube.com

        1. 8.3.1.1

          You completely miss the point RandomGuy. In the scene from My Cousin Vinny, Vinny is talking about building a case with evidence. 101 has no evidence. The judge need only their moist warm clothe and their private chambers to invalidate the claims with 101.

          Again, I get that feeling that you have mental illness. You don’t seem to be able to communicate with others.

          1. 8.3.1.1.1

            In the scene from My Cousin Vinny, Vinny is talking about building a case with evidence. 101 has no evidence.

            Nah there’s plenty of evidence, but I understand your reading comprehension is poor so I’ll spell it out for you.

            The Specification nominates a bunch of prior art which discusses the conventional way of doing things. The specification acknowledges this conventionality. Specifications, unsurprisingly, are evidence.

            Consistent with their specification, the patentee did not argue that things the specification said were conventional were not conventional, which was smart of them to do, since the specification is an admission by them. Consequently, “BSG Tech does not argue that other, non-abstract features of the claimed inventions, alone or in combination, are not well-understood, routine and conventional database structures and activities. Accordingly, the district court did not err in determining that the asserted claims lack an inventive concept.

            Now, arguments are not evidence, but they do frame the issues to be considered by a court. If you had gotten a law degree from an accredited school you’d probably know this.

            Given that all the evidence was that there was only one element that was possibly novel, and the applicant did not argue for the unconventionality of the other elements, it is unsurprising that the court ruled that that element was what the claim was directed to, and that the other elements were just conventional subject matter not entitled to significantly more.

            This is literally a case where the applicant said “I’m claiming A-G, but I want you to know that I didn’t invent A-C or E-G.” Applicant doesn’t argue that D is what he invented, or that D isn’t what the claim is directed to.

            The only thing this court had to do was a) Come to the correct conclusion that guidance by people who have done something before is a fundamental act, which should not be a difficult conclusion for anyone trained in, you know, law to come to; and b) Not misapply the two-step framework of Alice. Surprisingly (as you know I usually don’t think very highly of the CAFC) they managed to do both.

            Poor Hierarchy and You, just making the same argument every time irrespective of what the facts of the case or the procedure is. The patentee walked into court saying “Hey I already did Step Two of Alice for you and I’m not even going to argue it” and you sit there and say that they’re gisting the claims and there’s no evidence.

            Again, I get that feeling that you have mental illness. You don’t seem to be able to communicate with others.

            It’s true, I lack sufficient monosyllabic words to put my thoughts in terms you would be capable of understanding. If you need some help with the bigger ones I know of some judges that can introduce you to Google.

      2. 8.3.2

        You know, the inventors seem to have a good idea of what they think they invented before the lawyers get ahold of it.

        An interesting choice for a lead in – displaying a “blame the lawyer” attitude.

        But then you go into the weeds by embracing the turd of the Supreme Court with their “scrivener 0h n0es” mantra.

        You quite miss the fact that the largest turd of all comes from the body doing the most horrible scrivining.

        It matters little the details and fate of one patent when the re-writing of law by the Supremes affects the entire system.

        By the by, you never circle back to what that good idea was that was messed up by the lawyers. By your writing, there was nothing “there” anyway.

        Further by the by, you embrace the turd that somehow conventional components “doom a claim.” This is nothing more than the Big Box of Protons, Neutrons, and Electrons “logic.”

        1. 8.3.2.1

          An interesting choice for a lead in – displaying a “blame the lawyer” attitude.

          Blame goes where it’s deserved, often it is the CAFC or the office, today its the lawyers. I know you’re trying to insinuate I’m anti-lawyer here, so I’ll remind the peanut gallery I am a lawyer.

          By the by, you never circle back to what that good idea was that was messed up by the lawyers. By your writing, there was nothing “there” anyway.

          I’ll explain this below 8.3.3 below so I’m doing it in one place.

          Further by the by, you embrace the turd that somehow conventional components “doom a claim.”

          On the contrary, rarely do conventional components matter at all. They rarely have any bearing on determining a claim is non-obvious, and unless someone argues stupidly they don’t cause rejections either.

          1. 8.3.2.1.1

            Dated the 17rh, but was this in “purgatory?”

            Seems to reference another post, not (yet) visible….

      3. 8.3.3

        As I said, my issue is not the outcome. My issue is with the process. If the invention was obvious in view of admitted prior art, why was 101 used? Sure, current 101 law is a handy axe to kill bad patents (again, no opinion about this patent), but it is an Axe Of The Gods that can strike down immortal patents as well as mortal ones.

    4. 8.4

      Erect Strawman, light and burn. It’s pathetic. Hard to believe the CAFC goes along with this openly non-objective ‘legal’ standard.

  3. 7

    I haven’t had the time to read through the patents.

    I have the impression that the patents purport to describe inventions in the technological art of Distributed Database Systems (DDSs) in combination with RESTful Web Services (WSs). (RESTful refers to REpresentational State Transfer.) The databases in question are probably SQL or NOSQL (Not Only SQL).

    When I read Claim 1 of the ‘699 patent (in graphic above), I have to question whether the inventor actually staked out a claim to a statutory category. In other words, is that recitation of providing-steps a genuine process? Have a set of random activities been drafted to look like a process?

    Claim 10 of the ‘294 patent looks more like a genuine process (it may not be), but it is difficult to parse out exactly who or what is the actor that undertakes each step. The terminology is somewhat non-standard. I assume the terminology of the claim is explained in the written description or in the drawings.

    “Item” is probably either a record (SQL database) or a document (NOSQL database — I can’t state with certainty that this terminology is standard over all NOSQL database systems). An index is a structure created and associated with a Database (or Datastream) system. The index makes it possible to access items more quickly.

    Consider a database index to be analogous to the index of a book.

    The index is based on values of a key. The index is sorted in some way (just as the index of a book is sorted alphabetically).

    The first step (“providing …”) is undertaken by the database designer.

    The second step (“guiding … specific …”) is probably undertaken by the Web Service (“WS”).

    The third step (“storing the item …”) is probably undertaken by the user by means of the WS.

    The fourth step (“guiding … at least one …”) is probably undertaken by the Web service but seems hopelessly indefinite.

    If after reading the specification in detail, I decide that eligibility is not self-evident, I would move onto step 2a and step 2b. Because Claim 10 uses the magic word “structure,” I must in detail both read the written description and also evaluate the drawings altogether to determine whether the claim is directed to something new (not novel — I am not doing analysis for patentability), which is significantly more that a judicial exception.

    By my standards the decision looks a little lazy, but I have not read the briefs and documents on which it is based. The laziness of the decision may be a function of the material put before the CAFC.

    1. 7.1

      Because Claim 10 uses the magic word “structure,”

      The word “structure” by itself imparts nothing of legal significance to a patent claim. There is no “magic” there.

    2. 7.2

      I went through the patents and decision more carefully. I might have highlighted the issues differently, but overall the CAFC did a thorough job and explained the problems with the patents relative to current SCOTUS jurisprudence quite well.

      1. 7.2.1

        Joachim, I agree with you in that it does appear to be a thorough job, but the problem is that it is based on the judge’s analysis. Basically, what is happening is a judge with no technical expertise is analyzing an invention and then making private findings of fact and coming to conclusions where they are all made in a vacuum.

        I do agree that they were no horrendously wrong in the analysis from what I could tell, but the problem again is that this is not applying a law but a judge going back in their cambers with a moist warm clothe and determining the fate of the patent claims on their own.

        In no way should the judge be doing this. This is king and queen law where we peons have no rights.

  4. 6

    Dennis, when reporting cases please list the judges on the panel. This one had Wallace, Reyna and Hughes.

  5. 5

    As a matter of law, the statement:

    As a matter of law, narrowing or reformulating an abstract idea does not add “significantly more” to it.

    Is Void for Vagueness.

    It doesn’t matter if you put “significantly more” in quotes, the statement here is a morass of undefined terms.

    See [Interval Licensing LLC v. AOL, Inc., no. 2016-2502, concurrence slip op. at 1-2 (Fed. Cir. July 20, 2018) (Plager, J., concurring-in-part and dissenting-in-part): dissent from [the] court’s continued application of this incoherent body of doctrine.”

    1. 5.1

      That is actually interesting anon. Are they saying that narrowing cannot as a matter of law provide “significantly more”? If so that is clear error to anyone with a science background and actually absurd. One could take any claim that was allowed for providing “significantly more” and remove the elements that contributed to the “significantly more” and have a broader claim that fails Alice. Then add the elements back in “narrow” the claim and it would pass the “significantly more” test.

      (note that even just thinking within the framework of Alice makes me vo mit.)

      Also note that we consistently get contradictory statements and biza arro logic whenever we start with Alice.

  6. 4

    Reyna, Wallach, Hughes.

    1. 4.1

      That does pretty much say it all. Reyna is the number one for invalidating under 101 not reversing.

      1. 4.1.1

        Note that Reyna is also the one that admitted knowing nothing of science or patent law at his confirmation hearing and that in all likely hood Google selected Reyna for his lack of ethics (i.e., judicial activism and rabid dislike of patents despite being completely ignorant of them.)

        1. 4.1.1.1

          I hear the Reyna is actually a humanoid lizard wearing stitched together human flesh.

    2. 4.2

      The fact that the law is judge dependent in the courts and examiner and art unit dependent at the PTO goes to show that the law is bad and unworkable. But of course some like it this way.

  7. 3

    The claims do not recite any improvement to the way in which such databases store or organize information analogous to the self-referential table in Enfish

    … which was not an invention. Odd that the CAFC keeps bringing Enfish up. It’s nonsense, from top to bottom, and it only makes matter worse to pretend that there are “analogous improvements”. There aren’t “analogous improvements” to the Enfish’s alleged “improvement” because — as many of us knew immediately — there was no legally discernable, i.e., inventive, “improvement” to any computer technology described in Enfish’s cr @p claims.

    This is, of course, true of most alleged “improvements” to logic operations, whether carried out on a computer or not. Why is that? Because logic isn’t eligible for patenting. Once that fundamental fact is recognized, then the farce of trying to patent logic instructions for instructable machines designed to carry out logic becomes evident. There is no “there” there, and there never will be.

    1. 3.1

      Put another way, there is no such thing as a patent-eligible new “rule.” But that’s the only difference between “new” data-processing instructions and “old” data-processing instructions: a “new rule” that says “when you see this data, do this instead.”

      1. 3.1.1

        The only difference between two sets of three identical resistors per each set with the first set configured in series and the second set configured in parallel…

        Go ahead and reformat your hard drive. Don’t worry – you have your Britney Spears cd…

      2. 3.1.2

        There is no such thing as a patent eligible new (or old) proton.

        There is no such thing as a patent eligible new (or old) neutron

        There is no such thing as a patent eligible new (or old) electron

        And yet, when we look at ordered combinations (and claims as a whole) configurations of these ineligible things are eminently eligible.

        Imagine that.

        1. 3.1.2.1

          And yet, when we look at ordered combinations (and claims as a whole) configurations of these ineligible things are eminently eligible.

          No, it’s not. A configuration of PNE to do something is an invalid single means claim. If it weren’t, every claim would be a structureless claim to utility akin to “a machine for printing at a distance.”

          1. 3.1.2.1.1

            Random – that is not pertinent to the discussion.

            So while it is true that single means claims are not allowed, NO ONE here is talking about that as the item at point.

  8. 2

    the use of historical information is not “rooted in computer technology.”

    This perfectly sensible kindergarten-level observation, all by itself, pretty much decimates 99% of the computer-implemented g@ rbage claims presently running around apeshirt in Patentland.

    Because you know what else is “not rooted in computer technology”?

    Games of chance.
    Games of skill.
    Lip movements.
    Images in a defined space.
    Accounting.
    Banking.
    Renting an adult movie.
    Advertising.
    Listening to music.
    Listening to someone talking.
    Watching a “program.”
    Correlating identifiable traits with disease states or the likelihood thereof.
    Sending content-defined information to any person or thing.
    Regulating access to information about any topic.

    My goodness, maybe the CAFC is finally “getting it.”

    1. 2.1

      Where is that XLCD task link again…

  9. 1

    The patents here have been asserted in 50+ lawsuits – the vast majority of these cases settled

    Talk about malpractice.

    1. 1.1

      That’s not malpractice, it is the PAE business model,* which continues to thrive on the indisputable fact that most defendants will pay the patent owner a settlement fee to get out of a patent suit if the amount is substantially less than actual defense costs. Whereby the validity of the patent never even gets legally challenged until the patent owner makes the mistake of suing a company willing to at least challenge the patent at the initial motions stage, and/or file an IPR if it can, or the relatively rare companies we all know that plays litigation hardball as a standard practice.

      1. 1.1.1

        most defendants will pay the patent owner a settlement fee to get out of a patent suit if the amount is substantially less than actual defense costs.

        I guess I just wonder what how low these fees get because tanking g@ rbage like this is something I could do on weekend mornings while taking a dump. I wouldn’t charge much at all. Way, way, way easier than navigating claims to a therapeutic through the prior art and a well-credentialed Examination corp.

        I think the problem many of these defendants have is their own patent portfolios are built on the same vaporous foundation that this j u nk patent was built on.

        1. 1.1.1.1

          If it was that really that easy for a defendant to get out of a patent suit without paying something significant to the patent owner before discovery and other litigation defense costs mount up it would be done a lot more often. Especially when plural patents are sued on. And it has nothing to do with the defendant’s own patents. The % of all patent suits quickly initially decided on 101 motions is small, and S.J. before a Markman is rare.

          1. 1.1.1.1.1

            The % of all patent suits quickly initially decided on 101 motions is small, and S.J. before a Markman is rare.

            But the stats on j unk like this getting tanked under 101 before a Markman are substantially different.

            If it was that really that easy for a defendant to get out of a patent suit without paying something significant to the patent owner before discovery and other litigation defense costs mount up it would be done a lot more often.

            It becomes expensive if you play the game like you have a chance of losing. If you go into the game as if the patentee is going to be the big l 0 ser — and they will be — it need not be expensive at all. Just turn the tables. Take infringement off the table because it’s irrelevant (the patent is cr @p). Turn the case into a case about inequitable conduct and abuse of the legal system. Shove the gun barrel of the legal system into the face of these charlatans and ask them if they feel lucky. Broadcast the patentee’s j u nky patent and its s k um b@g behavior all over the Internet. Make them aware that the reputation of their company and their attorneys is going to be forever tainted by their @ h 0le behavior. That costs peanuts.

            When you’re confronted with patent claims like this, you are literally dealing with a pile of dogshirt in human clothing. You don’t need to call the army. Just get a bottle of beach and a big spray bottle.

            1. 1.1.1.1.1.1

              Yea I know that checklist. Sorry, you lose by playing. Sorry, you don’t have a choice if you are going to play or not. If your random number comes up (and it eventually will), sorry, you better pay your tribute into the racket before depositions start, or you are beyond effed. Yes you get some pleasure trashing bad actors, but it’s spendier than it’s worth.

        2. 1.1.1.2

          I recently be sued by troll. Cannot much money to defend please help.

    2. 1.2

      You mean for the lawyers who did not pressure their clients to settle? Because settling v. dying of legal fee bankruptcy is not much of a choice…

      1. 1.2.1

        Yes, more than $1000/hr. of client billing for expert patent trial counsel [per se or with associates] can add up to real money in a real hurry. Nor is that inherently a strong motivation [in contrast to the corporate counsel who’s budget is being bled] to urge fast and up front settlement.

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