More Abstract Ideas for the PTO’s Hopper

ASGHARI-KAMRANI V. UNITED SERVICES AUTOMOBILE ASSOCIATION (Fed. Cir. 2018)

Today the Federal Circuit issued three parallel decisions all stemming from the patent case brought by Asghari-Kamrani. The first two decisions affirm the E.D.Va. judgment-on-the-pleadings.  In those cases, the district court held that the patentee (Asghari-Kamrani) failed to state a plausible claim for relief within her complaint. In particular, the court found that all the asserted claims were invalid for lack of eligibility. On appeal, the Federal Circuit AFFIRMED in a R.36 Judgment Without Opinion. [Link].

The third decision is an order of dismissal of a parallel appeal from the PTAB (CBM Review). The PTAB had found all of the claims unpatentable as obvious or anticipated.  On appeal, though the Federal Circuit dismissed the appeals as moot — and vacated the USPTO decisions.

These appeals [from the PTAB] (Nos. 2018-1040 and 2018-1041) are dismissed as moot, and the decisions of the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board are vacated in view of our affirmance of the U.S. District Court for the Eastern District of Virginia’s judgment of patent ineligibility in Asghari-Kamrani v. United Services Automobile Ass’n, Appeal Nos. 2016-2415, 2017-2101, and 2017-2191, and the parties’ agreement at oral argument that affirmance of the district court’s ineligibility decision has the effect of invalidating all claims of U.S. Patent No. 8,266,432.

I need to think through this further, but for some reason, the automatic vacatur of the PTAB decisions does not sit well with me.

= = = = =

Asghari-Kamrani’s claims are directed to a system for authenticating a user — using a first central computer to general a temporary dynamic code and a second central computer to validate the code when submitted.

25. An apparatus for authenticating a user during an electronic transaction with an external-entity, the apparatus comprising:

a first central-entity computer adapted to: generate a dynamic code for the user in response to a request during the electronic transaction, wherein the dynamic code is valid for a predefined time and becomes invalid after being used; and  provide said dynamic code to the user during the electronic transaction; [and]

a second central-entity computer adapted to validate a digital identity in response to an authentication request from the external-entity, which authentication request includes a user specific information and the dynamic code as the digital identity which dynamic code was received by the user during the electronic transaction and was provided to the external entity by the user during the electronic transaction, and to authenticate the user if the digital identity is valid and to provide a result of the authentication of the user to the external entity during the electronic transaction.

The district court noted that the computers wouldn’t be necessary to run this invention (except for the fact that the claims expressly require a computer). In explaining the abstractness of the claims, the district court explained:

The claims are directed to the abstract idea of using a third party and a random, time-sensitive code to confirm the identity of a participant to a transaction. This formulation is admittedly verbose. It is verbose because the patent claims combine two abstract ideas: the use of a third party intermediary to confirm the identity of a participant to a transaction and the use of a temporary code to confirm the identity of a participant to a transaction. It is an obvious combination, and nothing about the combination removes the patent claims from the realm of the abstract.

As to Alice/Mayo step two – the addition of computers do not somehow turn this abstract idea into a patent eligible invention.

103 thoughts on “More Abstract Ideas for the PTO’s Hopper

  1. 16

    Thanks, no I was considering the import of “adapted to…” language relating more to function in method claims vs. “configured to…” relating more at structure in machine claims.

    1. 16.1

      …difference without a distinction?

  2. 15

    I have a question, instead of the “adapted to” language, would the result have been different perhaps were the language “configured to” employed, and some enabling code included in the spec when it was filed ? thx

    1. 15.1

      Chris,

      Why do you think that “some enabling code” is important? Are you confusing a legal document with an engineering document?

  3. 14

    Dennis says:

    >I need to think through this further, but for some reason, the automatic
    >vacatur of the PTAB decisions does not sit well with me.

    Technically, there was no basis to vacate the PTAB final written decisions. The CAFC should have simply dismissed the appeals as moot as the challenged patent was invalidated in a parallel judicial proceeding before the PTAB appeal was decided. The vacatur is a harmless thing, though, since the outcome is still the same, the patent is dead.

    I hope the PTAB internal statistics don’t count this as a reversal or ding against the PTAB judges who issued the final written decisions, since the vacatur had nothing to do with the merits (and given the outcome of the CAFC decision, it suggests that PTAB was probably right).

    1. 14.1

      LR,

      Help me out here, based only on your comments of “the challenged patent was invalidated… before the PTAB appeal was decided.,” why in the world would the PTAB judges NOT be dinged for proceeding on such? Yet you want: “I hope the PTAB internal statistics don’t count this as a reversal or ding against the PTAB judges who issued the final written decisions

      Regardless of your attempt to insert “vacatur had nothing to do with the merits” IF the matter was already resolved, why are resources being needlessly wasted?

  4. 13

    That’s some “patent quality” right there. Ed Tx dismisses on 101, the PTAB invalidates on 102 and 103. At least the fee and maintenance money spent well on that one… shouldn’t someone have to cough up something for such a cluster?

  5. 12

    Section 101 has become the lazy-judge’s 103. A sign of change on the horizon: Ds and Rs are jointly crafting patent re-reform legislation.

    1. 12.2

      Section 101 has become the lazy-judge’s 103.

      It’s as if the Act of 1952 never was passed…

      (most likely, Congress will need to do “substantially more” and exercise their Constitutional power of jurisdiction stripping and remove the non-original jurisdiction of patent appeals from the Supreme Court)

    2. 12.3

      Ds and Rs are jointly crafting patent re-reform legislation

      Go crazy.

      You aren’t going to own “correlations” and computer-implemented junk will still end up in the t 0 ilet.

      People need to get elected and while the patent glibertarian crowd is filled with hypocritical know-nothings who will do and say anything, normal people won’t put up with the h0rseshit.

      The Silly C0n Valley Bros always think the world revolves around them. But they just aren’t that smart. [shrugs] Ah well. There will always be plenty of jobs out there for people who can write instructions for computers.

      1. 12.3.1

        What a bunch of (typical) Accuse Others meme…

      2. 12.3.2

        You might have a little too much emotion invested in this issue. Step away from using your “computer-implemented junk”, go mix up a Mai Mai, and find a hammock, BRO!

    3. 12.4

      Section 101 has become the lazy-judge’s 103.

      Says a lazy commenter who can’t wrap his head around some of the most basic logical constructions in patent law.

      1. 12.4.1

        Says the commenter shouting so loudly with his eyes glued shut that he can no longer see or hear reason.

        1. 12.4.1.1

          I’m not shouting.

          I’d love to hear the “reasoning” that says you should be able to protect abstract and otherwise ineligible subject matter by reciting a prior art structural context for that subject matter (e.g., “wherein said useful and non-obvious information is viewable in a room, wherein said room has lead walls”).

          Go ahead. Let’s hear it. I’ve been waiting fifteen years and all I’ve heard was whining about some rich people not getting richer. Dennis Crouch is almost surely smarter than you and he hasn’t been able to come up with anything. Nobody has. Maybe you’ll be the first. Make everybody’s day and save the world.

          1. 12.4.1.1.1

            Are you done with your fit? your throwing around straw? your assuming your own hackneyed conclusion and then wanting others to make your case?

            Save the world? Maybe save yourself from yourself, deal with the cognitive dissonance that appears to overwhelm you and get into a field in which you can believe in the work product produced. You are doing NO ONE any good being so anti-patent and being (purportedly) in a position trying to create product that protects innovation.

          2. 12.4.1.1.2

            You just confirm my post. This simply sounds like someone with his whining with his head in the sand. As always, thanks for the entertainment.

          3. 12.4.1.1.3

            “nobody has” because you wouldn’t admit it when you saw it. 101 doesn’t say anything about “abstract ideas.”

            Methods are eligible subject matter, even if a machine performs the method. Deal with it.

            1. 12.4.1.1.3.1

              even if a machine performs the method

              I would daresay “ESPECIALLY if a machine performs the method”

        2. 12.4.1.2

          no longer….?

          More than 13 and a half years, Malcolm has been a consistent beacon of blight and lack of critical reasoning.

          1. 12.4.1.2.1

            MM makes me laugh. That’s more than I can say for somepeople.

            1. 12.4.1.2.1.1

              …and your laughter is all that matters…

                1. only in your mind – and THAT is one of your biggest problems as you attempt to interact with other people.

                2. This made me laugh (although it is a truth universally acknowledged that my laughter counts for less than a tinker’s cuss).

  6. 11

    Re: “the automatic vacatur of the PTAB decisions does not sit well with me.”
    I think the issue there should be is whether or not a prior Fed. Cir. sustained invalidity of all claims in suit on Alice FULLY moots the IPR invalidity decisions on the same claims on 103? This is to suggest one situation in which it might not. Suppose a patent owner had a spec with some real meat in it re the same invention, that could have been claimed before but were not. Supposed they filed such amended narrower claims that would distinguish over Alice and the 103 art in a reissue. My understanding [which anyone is free to substantively rebut] is that the PTO would consider the patent owner precluded from now doing so by the IPR decision [if no claim amendment was even attempt there] but not by the Fed. Cir. decision?

    1. 11.1

      All other conditions presumed to be passed (e.g., timing), how is EITHER IPR or court action preclusion of amendments in a reissue?

      1. 11.1.1

        See, e.g., 37 CFR § 42.73: “A patent applicant or owner is precluded from taking action inconsistent with the adverse judgment, including obtaining in any patent: [] A claim that is not patentably distinct from a finally refused or canceled claim”.

        1. 11.1.1.1

          Thanks JCD – but I am not sure that THAT helps, given the premise here that the reissue would be to claims that meet 37 CFR § 42.73 (and would do so in view of either IPR or court decision).

          1. 11.1.1.1.1

            Thanks JCD.

            Anon the “patentably distinct” requirement against recapture in 7 CFR § 42.73 means patentably distinct on a 103 basis from the prior cancelled claims of that same patent in the prior inter partes proceeding.

            1. 11.1.1.1.1.1

              Not sure if we are talking about the same thing.

              My question was to the preclusion of amendments – not the preclusion of amendments that may try to recapture material LOST as being not patent able.

              I thought it self evident that a specific item deemed not patent able (no matter the forum) is, well, not patent able.

  7. 10

    Why are the judges not castigating the attorneys for not being able to find prior art on these two well known ideas and then arguing 103? 101 is the free pass for lazy attorneys.

    1. 10.1

      lazy attorneys

      The lazy attorneys are the attorneys who are too lazy to make a good argument for ineligibility.

      Because there is literally no “do it on a computer” claim that can’t be tanked under 101. Maybe not on the pleadings, but at some point.

      All you need to do is make the right arguments. Of course, attorneys are not always allowed to make the right arguments for reasons that we’ve discussed here many times.

  8. 9

    The big picture that is missing is that information processing is a physical process.

    These claims can only be practiced by a machine that takes time, energy, and space to practice the invention.

    The judges are just horrendous. IMHO their actions warrant impeachment.

    1. 9.1

      Thinking is a “physical process” too according to your silly criteria.

      Try again.

      1. 9.1.1

        Machines do not think.

        The continued zombification (proxy, anyone?) of the Mental Steps Doctrine is an affront on ACTUAL thinking.

        1. 9.1.1.1

          LOL.

          You’re still desperately missing the point. You realize that your game is transparent, right? “Machine” isn’t a magic word that confers subject matter eligibility. It never will be.

          1. 9.1.1.1.1

            I am not the one desperately missing the point.

            That would be you.

            So very Accuse Others of you, Malcolm.

      2. 9.1.2

        If you look at a fNMR scan, it’s evident that thinking really is a physical process.

        1. 9.1.2.1

          , it’s evident that thinking really is a physical process.

          ….and? So?

        2. 9.1.2.2

          Good point. A few observations:

          (1) This patent nowhere defines “computer” or “code.”
          (2) Claim 36 provides that the first and second entity computers can be the same computer.
          (3) The claim only requires that the computer be “adapted to” generate or validate the code. They do not actually have to generate or validate. They must merely be “adapted to” performing that task.

          A human brain is “adapted to” generating and validating code. Moreover, because the term “computer” is not defined, its BRI should be “something that computes,” which included human brains. Is it possible that this claim reads on human individuals, and it is thus anticipated by any printed description of a human being?

          1. 9.1.2.2.1

            >>Moreover, because the term “computer” is not defined, its BRI should be “something that computes,” which included human brains.

            Greg, this is ridiculous. No person skilled in the art —NOT ONE–would read these claims as including a brain.

            A patent application is supposed to focus on what is new. It is not supposed to have to define the entire field.

            > (3) They must merely be “adapted to” performing that task.

            Again ridiculous. If they put in that it actually did generate the result then it would be mixing methods with apparatuses.

            1. 9.1.2.2.1.1

              No person skilled in the art —NOT ONE–would read these claims as including a brain.

              Fair enough. This is your art field, not mine, so I will defer to you on this point.

            2. 9.1.2.2.1.2

              They must merely be “adapted to” performing that task.

              Again ridiculous. If they put in that it actually did generate the result then it would be mixing methods with apparatuses.

              Hm, here I am going to disagree about the ridiculousness of the assertion. Yes, I agree that reciting “generate” in an apparatus claim would mix method with apparatus, which one must not do. Still and all, any computer is “adapted to” any outcome that the computer can do.

              This merely as much as to say that what the patentee invented here was a method, not a computer, so the patentee should have claimed a method, not a computer. If you invent a method and claim a machine “capable of” or “adapted to” performing the method, you have no one to blame but yourself when the claim later fails because it turns out that a prior art machine is “capable of” or “adapted to” the performance of the (genuinely novel) method.

              1. 9.1.2.2.1.2.1

                Still and all, any computer is “adapted to” any outcome that the computer can do.

                See the Grand Hall Experiment.

                One cannot “just use” a computer (for any new capability by way of software) until first that computer is changed and configured with the software.

                This not being your art field, you should be especially wary of the anti-patent banal rhetoric.

                1. computer is changed and configured with the software.

                  Changed in what manner? Describe these structural changes. For example, describe the structural change to a computer that is configured by software to “authorize” a transaction involving real estate versus a computer that is configured by software to “authorize” a transaction involving car parts.

                  Go ahead.

                  [falls asleep for a million years]

                  Still waiting. Is there a problem? This should be easy for you.

              2. 9.1.2.2.1.2.2

                “Still and all, any computer is “adapted to” any outcome that the computer can do.”

                My computer at home may be capable of certain things, but unless configured or adapted to do so via appropriate software and hardware, it simply can’t and won’t.

                Also, the Fed Circuit has been explicit recently about the difference between “capable of” and “adapted to.” See e.g. In re Giannelli.

                1. [T]he Fed Circuit has been explicit recently about the difference between “capable of” and “adapted to.” See e.g. In re Giannelli.

                  You might want to go back and re-read In re Giannelli, 739 F.3d 1375, 1379 (Fed. Cir. 2014). It really does not get you where you want to go here.

                  The claims of the ‘261 application specifically require a “first handle portion adapted to be moved from a first position to a second position by a pulling force … in a rowing motion.” Response to Office Action, No. 10/378,261, at 2 (Apr. 12, 2006). We have noted that, “the phrase `adapted to’ is frequently used to mean `made to,’ `designed to,’ or `configured to,’ …” Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1349 (Fed.Cir.2012). Although the phrase can also mean “`capable of’ or `suitable for,'” id., here the written description makes clear that “adapted to,” as used in the ‘261 application, has a narrower meaning, viz., that the claimed machine is designed or constructed to be used as a rowing machine whereby a pulling force is exerted on the handles.

                  In other words, ordinarily “capable of” and “adapted to” would be interchangeable. As it happens, Giannelli troubled to craft his written description in a manner that gave “adapted to” a narrower import than “capable of.”

                  Did Asghari-Kamrani also craft his written description with such care? If not, then your observation is beside the point.

                  This is all merely academic, however. Night Writer’s earlier point about the meaning of “computer” obviates my remarks about anticipation, quite regardless of the “adapted to” issue.

                2. Greg, what this is is anti-patent judicial activist judges using any means to invalidate claims.

                  “adapted to” to one skilled in the art means that the machine has structure to perform the functions described.

                  This whole business of ‘capable of” reminds me of the movie Bedazzled from 1967 with the judges being the devil.

                3. Some good (and ironic) advice for Greg may be found in the Giannelli decision as he himself attempts to use a device in an art field that he admits he does not know or understand:

                  Physical capability alone does not render obvious that
                  which is contraindicated. And, on this record, it is not
                  obvious to modify a machine with handles designed to be
                  pushed to one with handles adapted to be pulled. A chest
                  press machine is not a rowing machine, nor has evidence
                  been shown that it is. In fact, anyone who has used
                  exercise machines knows that a sure-fire way to cause
                  injury is to use a machine in a manner not intended by
                  the manufacturer.

                  See the Grand Hall Experiment.

                  Just because a processor exists that may be made to be changed to any number of different configurations does NOT make all (or even any) of those configurations per se obvious.

                  What you have stumbled into Greg is the canard of the television show House argument, which employs the opposite takeaway of the Morse case.

                  In essence, you want to point to the blank machine and say that the blank machine contains within it – as a matter of patent doctrine of inherency – ALL future innovations possible with the blank machine.

                  As to your pincite for wanting a different takeaway (as if the Giannelli case dictates some special treatment), that pincite actually belongs to Aspex Eyewear, Inc. v.
                  Marchon Eyewear, Inc., 672 F.3d 1335, 1349 (Fed. Cir.
                  2012), the context of that case being vastly different than the legal point in focus here (the “capable of” being an item of actuality, and not an item of potentiality — and the actuality of the items being compared was found to exist, without any “more” to bring the potentiality into being).

                  Thus, this is NOT an item for which applicant would “need” to choose to limit a meaning, as it is an item that is dictated by PHOSTIA. Such are clearly art field specific considerations that are important to recognize and understand. Much like not attempting to use exercise equipment in a manner not intended.

      3. 9.1.3

        >>Thinking is a “physical process” too according to your silly criteria.

        MM, what is the relevance of that statement? In Deener a human body could carry out the method of grain processing. Irrelevant. The process was for machines to carry out.

        Of course, thinking is a physical process. We know that there a bunch of medieval thinkers that are anti-patent that believe they have a mind where the information processing is performed in the spirit world and that information has an ethereal form.

        I will put you down in the medieval thinker category–in pen.

        1. 9.1.3.1

          A better example of “medieval thinking” would be the sort of thinking where wealthy/powerful/entitled people are permitted to tax or jail others who dare to use reasoning in the process of making a decision (because that reasoning is the “exclusive property” of those entitled wealthy people).

          1. 9.1.3.1.1

            Lovely strawman of “using reasoning.”

            You forgot some critical elements of any claim that anyone would (in non-strawland, aka reality) need to have in place — things that would make it so that any actual reasoning would entirely be STILL permitted.

        2. 9.1.3.2

          In Deener a human body could carry out the method of grain processing. Irrelevant.

          Information and information processing is different than processing physical/structural materials.

          Everybody knows this, even if they can’t bring themselves to admit it.

          For example, literally nobody thinks that methods of thinking about data are eligible for patenting or should be eligible for patenting. Nobody.

          That’s because information processing is different.

          It’s why we have a First Amendment protecting “free speech” and not a First Amendment protecting “free material processing.”

          I feel like I’m talking to a fricking kindergartner when I explain this stuff to maximalists. And probably in some cases I am talking to actual kindergartners. That would explain a lot.

          1. 9.1.3.2.1

            Lovely strawman you make for those kindergartners that you want to kick.

            Come back to reality.

          2. 9.1.3.2.2

            “Information” per se and as such is certainly “different;” but no one is stating otherwise.

            Where you have your leave of reason is how you next want to move from “Information” being some “keep out,” to “automatically” making anything at all to do with information processing necessarily something that is outside of patent law protection ON a per se and as such basis.

            All you do after that point is employ your feelings and ad hominem.

  9. 8

    Regardless of how one may feel about authentication or encryption or other computing-intrinsic issues (in whole or as applied), THIS ought to scream out for its Orwellian nature:

    The district court noted that the computers wouldn’t be necessary to run this invention (except for the fact that the claims expressly require a computer).

    Who cares if Congress wrote a statutory law providing authority/responsibility to the applicant for defining the invention (the claims, as a whole, without picking and choosing and eliminating claim elements), the courts (thanks to the Supreme Court) will decide what the invention “really is” by “Gisting.”

    Ignoring the Means here in order to celebrate a desired Ends should be repulsive no matter how (if!) “noble” those Ends may be.

    1. 8.2

      Agreed.

      Also, I would add the unbelievable ignorance of the statement. Saying that a human could perform the method (given 10 followed by one billion zeros years) is meaningless. This is building machines to perform information processing tasks.

      Imagine in Deener if the justices had said these claims read on what a human body could do. These claims will prevent people from processing grain in this way.

    2. 8.3

      Agreed No. 3

    3. 8.4

      I’m more repulsed that the PTO thought, “Use a daily codeword provided by a third-party computer,” was patentable in the first place.

      1. 8.4.1

        ID,

        Patent ABLE of patent eligible….?

        1. 8.4.1.1

          Oops “of” ==> “or”

    4. 8.5

      Your “argument” is nothing more than a debunked rhetorical game.

      All the grown ups have moved beyond your spewage. The fundamentals of the analysis are never going to change for reasons that have been explained countless times already.

      You sound like an idi 0t and that goes for Paul Cole too.

      1. 8.5.1

        Your feelings are noted – as is the absence of any actual “debunking.”

  10. 7

    >I need to think through this further, but for some reason, the automatic vacatur of the PTAB decisions does not sit well with me.

    Wasn’t there a case where the dist. ct. said the patent was valid and infringed, but then the PTO invalidated the claims under 103 and the CAFC vacated the dist. ct. decision?

    So I guess res judicata to invalidate the claims.

  11. 6

    “Abstract idea.” Def abstract: existing in thought or as an idea but not having a physical or concrete existence.
    “abstract concepts such as love or beauty”. Say what you want about the claims under 102 & 103, but IMHO, they read as a “concrete” fully-formed idea. The only thing ‘abstract’ going on is the abstract idea test under Alice.

    1. 6.1

      I agree. If a claim is an abstract idea abstractness is an essential property of the claim. If not abstract, that also eould be an essential property. If it’s obvious due to being disclosed after a prior art publication, i.e., due to the accident of when the claim was filed, it would be logically impossible for obviousness to transform a non-abstract thing into abstract. If a claim were validly patented and the exact same claim were applied for at a later date by a different inventor, how could the first be nonabstract and the second abstract due to obviousness? Filing date cannot render abstract to be non-abstract or vice-versa. Alice/Mayo is a house of cards.

      1. 6.1.1

        Some commenter named “Peter Kramer” is wrong about everything:

        If a claim is an abstract idea abstractness is an essential property of the claim.

        The issue is not whether “the claim is an abstract idea.” That’s hardly ever the issue in an eligibility case because a mediocre patent attorney can scriven around that issue. The issue is whether the claim protects an abstract idea or, even more specifically, the issue is whether the claim would create a risk of infringement around the abstract idea such that the granting of such claims would lead to further legal barriers placed around the abstract idea.

        If it’s obvious due to being disclosed after a prior art publication, i.e., due to the accident of when the claim was filed, it would be logically impossible for obviousness to transform a non-abstract thing into abstract.

        First, claims aren’t filed “by accident.” They are filed intentionally at a particular time. By human beings.

        Second, nobody is suggesting that a “non-abstract thing” is turned into an “abstract thing” by “obviousness.” That’s not what’s being discussed at all. What is being discussed is that you can’t protect an abstraction with a patent claim by placing that abstraction within a context where that context is (1) admittedly in the prior art or (2) belongs in the public domain because it is an obvious variation of the prior art.

        This is not a difficult or radical proposition, by the way. On the contrary, it’s an essential and accepted proposition pretty much everywhere except within the patent tr 0ll-0-sphere.

        If a claim were validly patented and the exact same claim were applied for at a later date by a different inventor, how could the first be nonabstract and the second abstract due to obviousness?

        See above. And note again: this is a simple. You may lack the intelligence to understand it but I guarantee you that most judges don’t. Because most judges are smarter than the average patent maximalist. Waaaaaaaaaaay smarter. Think about that for a bit.

        iling date cannot render abstract to be non-abstract or vice-versa.

        Wrong. You are a walking case of malpractice.

        Alice/Mayo is a house of cards.

        No. The house of cards is a farcical skyscaper built on the premise that data descriptions are the “essence of electronic structure.” That house of cards reached its maximum height at State Street Bank and its been falling apart ever since. When will the catastrophic collapse occur? Could happen any time. Could have happened five years ago (and should have).

  12. 5

    Panel: Dyk, Wallace and Hughes.

    Since these types of decisions are showing a clear ricochet and appear to be highly panel-dependent, why in the world would not the write-up include the members of the panel?

  13. 4

    Before you all get in a huff, reminder that “combining abstraction and abstraction is abstraction” dates at least as far back as Electric Power Group, which held that obtaining info was abstract, and analyzing info was abstract, and displaying info was abstract, and the claim was just those three abstractions right after each other. So the district court isn’t treading new ground there.

    I see we’ve already had one poster take issue with abstract + abstract, so let me ask you all this – Do any of you think that if someone had just taken the Bilski v. Kappos claim and added on the Alice v. CLS Bank claim (e.g. a computer that performed both hedging and intermediated settlement) that the Supremes would have found that claim eligible merely because it was directed to two patent ineligible concepts instead of one? If the function of the analysis is to prevent fundamental acts from being tied up, why is simply nominating two fundamental acts somehow less bad than just nominating one?

    That being said, it’s not clear to me why the district court did what it did – why create the unnecessary combination when it could have just been directed to one of the individuals. Nobody could make a legitimate argument that “using a third party to authenticate” isn’t a conventional act if he had just formulated the abstract idea as “the use of a temporary code to confirm the identity of a participant to a transaction,” so why create the combination that will annoy some people?

    I’ve noticed that the office does this too. For example, the guidance on EPG is “collecting information, analysing it, and displaying certain results of the collection and analysis.” But that doesn’t really track with what the case said – the case said that collecting information is abstract, analysing information is abstract, and displaying information is abstract, and that combining abstractions does not render it non-abstract. I’ve actually had primaries tell me that EPG can’t be cited to an application because the claim *only* collects information and analyzes it (without display), as if the broader claim is somehow more eligible or that EPG would have had an eligible claim if they just cut out the display step. This is what happens when you give someone a law holding but you haven’t trained them to think.

    Another way to say this is that an abstract idea is a fundamental act, which means it is conventional, which means it is not significantly more. There’s no need to get people all riled up by generating “compound” abstract ideas when one can simply nominate a single “basic” abstract idea and call the other basic abstract ideas present in the claim insignificant conventional subject matter. EPG could have been decided by stating that the claim was directed to analysis of data, and that collection of data through conventional means is insignificant pre-solution data gathering per Mayo and that conventional display of data is insignificant post-solution activity. Pulling those steps out of Alice Step One (the directed-to step) and putting them into Step Two (significantly more) doesn’t really make much difference when the thing you’re talking about isn’t even remotely plausibly inventive.

    1. 4.1

      …conventional abstractness…

    2. 4.2

      “Combining abstraction and abstraction is abstraction.” Those are words of wisdom from some on the panel of the Fed. Cir. Too bad it flies in the face of the requirements under the “directed to” inquiry, which requires analyzing the claim as a whole, as well as determining the thrust or idea to which the claim is directed to – NOT – what the claim INVOLVES.

      Some on the panel of the Fed. Cir. have mucked up further an already ridiculous analysis for determining patent eligibility.

      1. 4.2.1

        D —LOL!

        I think the panel doesn’t care. Two of them are Google judges. They write nonsense with the conclusion that all the claims are invalid.

        Thanks Obama.

        1. 4.2.1.1

          I agree about the “not caring” and the Google judges. As for the political slant regarding Obama, I don’t wish to go too far adrift on the issue.

      2. 4.2.2

        Too bad it flies in the face of the requirements under the “directed to” inquiry, which requires analyzing the claim as a whole, as well as determining the thrust or idea to which the claim is directed to – NOT – what the claim INVOLVES.

        Are you saying that the claim can only be “directed to” one particular act? To use EPG as the example – I’m sure that patentability was not premised on the data collection being novel, nor on the analysis being novel (in fact the case explicitly states they are not) nor on displaying information being novel, but upon the combination of acts together as being a non-obvious combination. If the combination of acts was the reason for patentability, why isn’t proper to consider that same combination of acts for eligibility purposes?

        I see no ruling that *requires* the “directed to” analysis to be some atomic level of granularity. Alice itself did not claim “intermediated settlement” – it claimed a series of acts which the court called intermediated settlement. It’s true that two-word phrase looks nicer (and perhaps the fact that it can be expressed so succinctly does matter some in determining whether it is a fundamental act) than the compound phrase this district court used, but it was still a stand in for multiple acts by multiple parties.

        As I said, I’m not a huge fan of what the district court here did, but I don’t know of anything that says that what the court did was wrong. You say the Fed Cir mucked up the analysis, but how does it not comport with Alice itself?

        1. 4.2.2.1

          He’s saying that the “law” needs to be applied like a mo r0n would apply it because that’s how you get the loophole he wants.

        2. 4.2.2.2

          Alice itself did not claim “intermediated settlement” – it claimed a series of acts which the court called intermediated settlement.

          Bingo! Same in Mayo. Certainly, the claim as a whole approach under the directed to inquiry does not rest on the number of words used. I guess you have trouble with understanding the difference. Also, as a I pointed out to MM – the Supremes did NOT set forth an opinion that determines whether, for each step/act, under the directed to inquiry, whether that step/act is abstract or not. Nor did the Supremes characterize a claim under the directed to inquiry by way of a mere concatenation of each limitation. Wrong – plain and simple – IMO.

    3. 4.3

      Remember before you get in a huff that a witch must be burned for the safety of us all.

    4. 4.4

      The scoreboard is — and remains — broken.

      Electric Power Group, which held that obtaining info was abstract, and analyzing info was abstract, and displaying info was abstract,

      obtaining info — in context —is not abstract
      analyzing info — in context —is not abstract
      displaying info — in any context —is not abstract

      (perhaps a “shortcut” is being taken from the [equally undefined] “something more” to labeling things “abstract”)…

      When one is able to wield an undefined term in an wanton and uncontrolled manner, and critical thinking is not even bothered with, errors will cascade.

      1. 4.4.1

        Obtaining information, analyzing information, and displaying information all take time, space, and energy–and—wait for it—a machine.

      2. 4.4.2

        obtaining info — in context —is not abstract

        Assuming you mean “in context” as “done by a computer,” you know that’s not the analysis. I think there’s no question but that obtaining info is a fundamental act when performed by a human. The same with analyzing info, and with displaying info. Humans have been able to see since forever, to think about what they saw, and both drawing and writing have existed for thousands of years. Alice clearly stands for the proposition that, at a minimum, having a computer perform these functions when there is no technological hurdle in doing so is not eligible.

        It’s okay for you to yell “broken scoreboard” – you’re free to disagree with the court so long as you recognize that the court actually controls. But don’t go acting like there’s some “undefined” ambiguity in the situation. EPG is just like Alice, and once Alice got decided the EPG patentee shouldn’t have been surprised the claim was not valid.

        1. 4.4.2.1

          Machines are not humans.

          or… Anthropomorphication

          But you already knew that, eh?

          As to “but that’s not the analysis” — you quite miss the point that the scoreboard is broken. All that you want to do is not apply any critical thinking and ignore the larger issue.

          1. 4.4.2.1.1

            Programmable Computers are proxies for humans. We built them to carry out logic processing tasks more quickly.

            But logic is still ineligible for patent protection, regardless of context.

            Surprise, surprise, patent law occasionally acknowledges this basic fact about the world.

            1. 4.4.2.1.1.1

              Again with your canards…

              How is that copyright for logic thing coming along?

              Your “choice” of basic facts simply do not align with an inte11ectually honest approach to the subject. Instead, you rely nearly solely on your feelings and ad hominem, your celebration of desired Ends, without regard (critical or otherwise) to the Means to those Ends.

              (and you haven’t figured out yet why anthropomorphication is important and your “proxy” position is a F A I L -things humans build are expressly what the patent system is for)

    5. 4.5

      Good points. It’s good to remember that 101 prohibits protecting ineligible subject matter by scrivening in the prior art and ALSO prohibits protecting the prior art by scrivening in ineligible subject matter.

    6. 4.6

      It seems that in Enfish the abstract concept of a self referential table transformed the claim into being eligible (and therefore not directed to an abstract ides.) Abdtract + abstract = not abstract according to court’s convoluted thinking.

      1. 4.6.1

        Enfish is an incomprehensible joke that was told to prop up a junky ineligible claim that the CAFC was convinced was The Most Important Thing Ever but turned out to be obvious cr @p.

      2. 4.6.2

        It seems that in Enfish the abstract concept of a self referential table transformed the claim into being eligible (and therefore not directed to an abstract ides.) Abdtract + abstract = not abstract according to court’s convoluted thinking.

        The claim was means-plus, it was directed to a particular table with a particular novel structure, not the generalized concept of a self-referential table.

        1. 4.6.2.1

          You say “particular” as if that provides a weight to the table, or distinguishes that 4 chairs and not 6 fit under that table.

          The “means-plus” aspect does not change the point here.

          1. 4.6.2.1.1

            You say “particular” as if that provides a weight to the table, or distinguishes that 4 chairs and not 6 fit under that table.

            The “means-plus” aspect does not change the point here.

            Well that’s an interesting admission.

            1. 4.6.2.1.1.1

              Admission as to what?

              Is it as interesting as your admission as to knowing and understanding the controlling law when it comes to the exceptions to the judicial doctrine of printed matter?

              That same admission by you that you nigh constantly dissemble about with your feelings on innovation concerning the computing arts?

  14. 3

    The district court: the patent claims combine two abstract ideas: the use of a third party intermediary to confirm the identity of a participant to a transaction and the use of a temporary code to confirm the identity of a participant to a transaction. It is an obvious combination, and nothing about the combination removes the patent claims from the realm of the abstract.

    Let’s pause and recognize that this rock solid reasoning destroys vast numbers of already granted “do it on a computer” patents and an equally huge fraction of pending claims. Kind of like an atom bomb dropped on a leaky water balloon will not only prevent the balloon from holding water but it will also vaporize the water. POOF. Gone.

    That’s because here’s what else wouldn’t remove the patent claims from the realm of the abstract: specifying a non-obvious third party; specifying a non-obvious participant; specifying a non-obvious transaction; specifying a non-obvious time; specifying a non-obvious code. Unfortunately, that’s how most patent claims in this out-of-place field end up weaseling through the system.

    Now, it might be possible to remove the patent claims from the abstract by specifying a non-obvious method of signaling authentication. But if you’ve come up with a non-obvious and eligible method of signaling information, it would be more than a bit of malpractice to limit such method claims to some random silly context like “authentication.”

    1. 3.1

      …authentication is a “random silly context”…?

    2. 3.2

      Please, please, please feel free to do without these things that you would nuke.

      Oh wait, this is the guy that opted for the maximum security level in the short-term DISQUS editorial controls in order that his rants were not easily collected in one place…

    3. 3.3

      recognize that this rock solid reasoning

      Happy Opposite Day.

  15. 2

    And yet another improper patent-stealing 101 analysis among many . . .

    As the Supreme Court clearly, explicitly, and unambiguously repeatedly instructs in Alice, Mayo, and Bilski (note just one stated idea / concept in each Court decision with said one idea / concept being directed to all the claims at issue):

    “We hold that the claims at issue are drawn to the abstract idea of intermediated settlement …” Alice at 2352

    “First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Alice at 2355

    “We must first determine whether the claims at issue are directed to a patent-ineligible concept.” Alice at 2355

    “The claims at issue in Bilski described a method for hedging against the financial risk of price fluctuations.” Alice at 2355

    “It follows from our prior cases, and Bilski in particular, that the claims at issue here are directed to an abstract idea.” Alice at 2356

    “Because the claims at issue are directed to the abstract idea of intermediated settlement …”Alice at 2357

    “First, we determine whether the claims at issue are directed to one of those patent-ineligible concepts.” Mayo at 1296-1297

    Make no mistake — the difference and distinction between one and who knows how many concepts is a critical Alice / Mayo analytical factor indeed.

    Arguably the most important factor.

    Parties – including the Patent Office and the Courts – trying to deal with multiple-abstract-concept assertions – going against the Supreme Court’s express dictate and directive when they do so — would quickly find themselves mired in a due-process-denying (and unconstitutional) factual and legal morass.

    Swallowing all of patent law in the process:

    “At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law.” Mayo, 566 U.S., at ___, 132 S.Ct., at 1293-1294 (as quoted in Alice at 2354)

    How about two concepts directed to the claims at issue being acceptable (as was improperly done here)? Would three concepts be O.K.? What about four? Five? Ten?

    Or how about one concept for each claim? Two for each claim? Three? Four? Five? Ten?

    Why not one for each limitation? Two? Three? Four, five, ten or more?

    Maybe one or more for each element? Would that be O.K.?

    Where would such patent madness end? All of patent law would indeed be swallowed. As is happening.

    With America on the road to becoming an intellectual property third world country. As we are.

    China and Europe are eating our lunch.

    Enough is enough. There’s no confusion here. No subjectivity. No uncertainty. No gray area. No interpretation.

    The Supreme Court said what it means and means what it says:

    One abstract idea. All the claims at issue.

    One can’t be identified? Then the claims are § 101 eligible.

    The Alice / Mayo analysis stops there. Step two is moot.

    Simple as that.

    Asghari-Kamrani was robbed.

    Simple. As. That.

    1. 2.1

      Swallowing all of patent law

      Except there’s plenty of non-abstract innovations going on. And room for lots more. If only there was a way to direct more money towards those innovations (infrastructure, anyone?). Nah. Bingo management and algorithms for finding your “perfect mate” are far more important. Not to mention algorithms for figuring out where to invest your money because, hey, computers know best. We can trust them!

    2. 2.2

      Asghari-Kamrani was robbed. Simple. As. That.

      This message brought you to by the Asghari-Kamrani Foundation for Junk Patents.

  16. 1

    the addition of computers do not somehow turn this abstract idea into a patent eligible invention.

    “The addition of pieces of paper with the codes printed on them do not somehow turn this abstract idea into a patent eligible invention.”

    “The addition of rooms with walls and breathable oxygen do not somehow turn this abstract idea into a patent eligible invention.”

    Rather than inject mystery into this reasonable and predictable (and correct) result, how about we recognize that “authenticating” or “designating something as permitted” is an abstraction and it doesn’t matter what the “thing” is or whether the “authenticating” step is carried out by a person or a prior art instructable machine that was built to carry out exactly these sorts of logical operations on data (e.g., comparing stuff). Is there something even vaguely radical or baffling about this proposition? If so, what is it about the proposition that is so confounding?

    Does the phrase “essence of electronic structure” leap immediately into the mind of reasonable people? I didn’t think so either.

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