Network Monitoring and . . .

by Dennis Crouch

It appears that the Federal Circuit has sharpened its blades and is now slicing the bologna extra thin.  This results-oriented decision unfortunately shades-facts and provides no clarity in its legal analysis of eligibility. While I agree that this network security invention should be eligible for patenting – the court’s analysis does not provide a convincing foundation for that result. 

SRI International, Inc. v. Cisco Systems, Inc. (Fed. Cir 2019)

At the close of trial, the jury issued its verdict favoring the patentee and awarding $23 million in reasonable royalty damages that were then doubled by the D.Del. Judge Robinson based upon the adjudged willful infringement.  On appeal, a 2-1 Federal Circuit panel has sided with the patentee on eligibility, but rejected the enhanced damages.

The eligibility outcome here fits expectations with the majority opinion penned by Judge Stoll and joined by Judge O’Malley while Judge Lourie stood in dissent.

SRI’s asserted claims are directed to methods of “hierarchical event monitoring” used within a computer network.  U.S. Patent 6,711,615.  The basic approach is (1) using a “plurality of network monitors” to detect “suspicious network activities”; (2) generate a report at the network monitor levele; and (3) a “hierarchical monitor” “automatically receiving and integrating the report.”  The specification makes clear that the “integrating” step might be simply looking for commonalities in the intrusion reports or might further involve “countermeasures.”  The specification does not appear to define “hierarchical monitor” other than contrasting them with peer-to-peer.

In considering the claims, the Federal Circuit found that the focus of the claim is on “providing a network defense system that monitors netowrk traffic in real-time to automatically detect large scale attacks.”

Contrary to Cisco’s assertion, the claims are not directed to just analyzing data from multiple sources to detect suspicious activity. Instead, the claims are directed to an improvement in computer network technology. Indeed, representative claim 1 recites using network monitors to detect suspicious network activity based on analysis of network traffic data, generating reports of that suspicious activity, and integrating those reports using hierarchical monitors. The “focus of the claims is on the specific asserted improvement in computer capabilities”—that is, providing a network defense system that monitors network traffic in real-time to automatically detect large-scale attacks. Quoting Enfish.

The majority opinion goes on to justify its conclusions based upon platitudes from the specification — that the invention provides “a framework for the recognition of more global threats to inter-domain connectivity, including coordinated attempts
to infiltrate or destroy connectivity across an entire network enterprise.”

Writing in dissent, Judge Lourie argued that the claims are effectively data collection methods.

The claims here recite nothing more than deploying network monitors, detecting suspicious network activity, and generating and handling reports. The detecting of the suspicious activity is based on “analysis” of traffic data, but the claims add nothing concerning specific means for doing so. The claims only recite the moving of information. The computer is used as a tool, and no improvement in computer technology is shown or claimed. There is no specific technique described for improving computer network security.

Lourie drew a tight analogy to the Electric Power Group eligibility decision that invalidated claims directed toward a “method of detecting events on an interconnected electric power grid in real time over a wide area and automatically analyzing the events on the interconnected electric power grid.”  Seemingly, this case here could also be seen as a close analogy to the court’s recent cases distinguishing between methods of diagnosis and methods of treatment. See Vanda and Natural Alternatives.

The Majority opinion here attempted to distinguish Electric Power Group as in invention “using computers as tools to solve a power grid problem, rather than improving the functionality of computers and computer networks themselves.”  What the majority fails to do here is to point to any particular aspects of the claimed invention that provide anything more than what other panels have identified as abstract ideas – receiving data; reporting data; and correlating data.

= = = =

The appellate panel rejected the willfulness finding and, as a consequence, the resulting doubling of damages.

While the jury heard evidence that Cisco was aware of the patents in May 2012, before filing of the lawsuit, we do not see how the record supports a willfulness finding going back to 2000. As the Supreme Court recently observed, “culpability is generally measured against the knowledge of the actor at the time of the challenged conduct.” Halo, 136 S. Ct. at 1933. Similarly, Cisco’s allegedly aggressive litigation tactics cannot support a finding of willful infringement going back to 2000, especially when the litigation did not start until 2012. Finally, Cisco’s decision not to seek an advice-of-counsel defense is legally irrelevant under 35 U.S.C. § 298. . . .

We leave it to the district court to decide in the first instance whether the jury’s presumed finding of willful infringement after May 8, 2012 is supported by substantial evidence.

Although willfulness is missing, the court still affirmed the award of attorney fees to the patentee based dupon Cisco’s litigation tactics.  Judge Robinson had written:

Cisco pursued litigation about as aggressively as the court has seen in its judicial experience. While defending a client aggressively is understandable, if not laudable, in the case at bar, Cisco crossed the line in several regards.

The appellate panel gave deference to district court conclusions on this final point and affirmed the award of fees.

= = = =

Note: In a separate case, Judge Robinson had previously held the claims invalid under 102/103. However, that decision was vacated on appeal SRI International, Inc. v. Internet Security Systems, Inc., 511 F.3d 1186 (Fed. Cir. 2008).  Here, interestingly, Judge Robinson sua sponte issued summary judgment that the claims were not anticipated.  That holding was affirmed here on appeal.

78 thoughts on “Network Monitoring and . . .

  1. 11

    A verbatim quote from Dir. Iancu, made in a recent public appearance:

    “The Supreme Court… did not say that ‘doing it on a computer’ is always patent-ineligible, no matter what the ‘it’ might be.”

    Inventions involving computers can be found ineligible for patents only when the inventions are directed to prohibited categories of subject matter, like abstract ideas, not just because there is a computer involved, Iancu said.

    “Put differently, the court never said that all automation with computers is per se ineligible,” he said. “And why would it be? Where is the statutory authority to draw an eligibility line between automation computers on the one hand and automation with other machines on the other?”

    1. 11.1

      But the approach outlined in the guidance takes into account the nature of technological innovation in the 21st century, [Director Iancu] said.

      “We need to be careful not to decide that automation, which is at the heart of the technologies of the future, is somehow no longer eligible for patenting,” he said. “Just because we are no longer automating using large machines that are tangible and easy to see and feel does not mean that today’s machines and processes should be any less eligible.”

      Bonus points for those that recognize the Kondratiev Fifth Wave (as well as the holding from In re Alappat).

      1. 11.1.1

        Both points of 1) Kondratiev Fifth Wave and 2) continued application of the holding from In re Alappat are universally accepted?

        Nice.

  2. 10

    All general purpose computers (more or less) transform, transmit, receive, store and display arbitrary data. In order to improve a general purpose computer, as a general purpose computer, you need to improve one of those five things for arbitrary data.

    Almost any software you add to a general purpose computer does not do this because the software works with specific data. In the case above it is specifically ‘network traffic data’ which is transformed.

    My use of ‘arbitrary is somewhat arbitrary. For example:

    Image compression algorithms run on arbitrary data, but succeed best on images.

    Data compression algorithms run on arbitrary data but succeed best on text.

    Enfish will work on any data but will succeed best on data with a row-column arrangement (any sequence of data can be described as 1 row with lots of columns so you can always use Enfish even if does not work very well)

    Improving a computer means improving as a computer, not changing it into a machine which monitors network packets for viruses or settles financial transaction or compares cars.

    1. 10.1

      Taking a Malcolm-tactic, I have to wonder what is the “objective physical structure” of this mythological “general purpose computer.”

      Does that “general purpose computer” already come changed from a pure hardware machine with any software loaded into (and configuring) that pure hardware machine?

      1. 10.1.1

        One oddity of general purpose computers is you can install more than one kind of software on the them. You can configure a general purpose computer to be both a ‘network packet monitor’ and a ‘financial settlement system’. The resulting machine is still a general purpose computer which can also perform 2 specialized services.

        So the initial hardware and software that make up a general purpose computer is irrelevant. As long as it can transform, store etc it does not matter how it came from the factor or what has been added since.

        1. 10.1.1.1

          You missed this point as well.

          Malcolm rants about “objective physical structure” as if there were to be a SINGULAR (and fixed) actual physical state that can be described in all its “objective” glory. Your answer here more goes along the line that NO such thing actually exists, and the term is (more or less) an undefinable “objective physical singular” thing.

          Also – and critically – the moment you install anything is the moment that you have reconfigured that mythical “general purpose” thing and in truth, you no longer have a “general purpose” thing — your answer is simply incorrect in that critical regard; as there is no such thing as a “general purpose computer with two specialized functionalities.”

          1. 10.1.1.1.1

            What have I got in my pocket then? If I install a network packet monitor on it can I claim the combination of programs could not be infringing?

            1. 10.1.1.1.1.1

              Adding more to a machine may not let you escape infringement (in the patent context, think: “comprising”).

              The point of course is that once you add capabilities to that mythical “general purpose,” you simply do not have that “general purpose,” and the larger point is that no one has ever objectively determined WHAT that “general purpose” was to begin with.

              Near as I can tell, the courts were being lazy and wanted to create an analogue to juristic persons or legal fictions such as PHOSITA, but the problem of course is that their scientific foundation of understandng was woefully inadequate.

    2. 10.2

      SR,

      I would also note that you do not get to play the “works best” game and try to use software contrary to its teachings.

      That’s more than just “arbitrary.”

      1. 10.2.1

        You can compress any data using an image compression algorithm, it just won’t compress very much because the algorithms work best on images

        1. 10.2.1.1

          What one “can do” misses the point here.

    3. 10.3

      Slashdot, the way to avoid that key ambiguity to to separate data that has meaning to persons from data that has meaning to machines. Human consumption of information imparts meaning. No human mind, no meaning. No human mind, no abstraction.

      In this case, switches and routers consume the data- the method should be eligible. It’s also as obvious as the sunrise and should never have been close to making it out of the office.

    4. 10.4

      “Improving a computer means improving as a computer, not changing it into a machine which monitors network packets for viruses or settles financial transaction or compares cars.”

      Why is modifying a computer so that it can monitor network packets for viruses not an improvement to the computer?

      Why is modifying a computer so that it can settle financial transactions not an improvement to the computer?

      Why is modifying a computer so that it can convert a users speech into text not an improvement to the computer?

      Of course these are all improvements to the computer. To say otherwise is disingenuous.

  3. 9

    The reasoning in Electric Power Group was ridiculous. Apparently the court now sees that and is trying to back pedal. I applaud that.

    1. 9.1

      Agreed

  4. 8

    Laurie needs to retire. He is an ignorant bitter old man.

  5. 7

    If you believe the previous case was wrongly decided, man up and say you refuse to follow precedent because the previous case was wrongly decided.

    The Majority opinion here attempted to distinguish Electric Power Group as in invention “using computers as tools to solve a power grid problem, rather than improving the functionality of computers and computer networks themselves.”

    There is no logical basis for this statement to be distinguishing. There’s like five cases that say *what the information is about* has no bearing on the eligibility. Now this case states that what the information is about is the critical factor in eligibility.

    By this logic, if the network monitors monitored physical buildings and generated reports (i.e. improved the security of a building, an obvious technological advancement) they would be ineligible because the computer is used as “a tool to solve a building security problem, rather than improving the functionality of computers and computer networks themselves.” But if the monitors monitor the computer network itself, they are eligible – as if the cross-pollenation of technology works some sort of ineligibility magic. Either an improvement to a technological field imparts eligibility or it doesn’t, there’s never been a requirement eligibility depends upon what field is improved. What a ridiculous standard.

    And what a terrible loss for the anti-judicial exception people. Now in addition to EPG stating things are ineligible, here’s a case finding claims eligible specifically because they lack an element that will be contained in the vast majority of what computers are used for – information processing about other subjects.

    I, personally, think that when a computer simply processes information about subjects its performing an ineligible act. I’m sure many disagree. But for those people a case which nominates a particular missing feature is terrible. This case pretty much cements 95% of “computers as information processors” as ineligible subject matter – in saving network (and other computer) monitoring the case dropped all non-computer processing like computer business methods, all industry controllers, and all large-scale mathematical analysis (like insurance, medical etc).

    It’s certainly true that computer can process information about computers, but that’s because a computer can process any kind of information, and information about computers is a subset of all information. But it’s hardly the only thing people use computers for or seek patents on, and this case essentially places a hard rule striking those.

    The simple fact of the matter is that the word “analyze” without true limitation is an abstract act. It’s a command to form an opinion using an untold array of mechanisms and is the height of preempting fundamental subject matter. For example, this case will eventually (provided competent counsel) be tossed on 112b grounds because “suspicious activity” is a relative and ambiguous standard, and the reason it is ambiguous is because there is little limitation about what data is interrogated and no limitation on how the interrogation occurs in order to come to the conclusion that “suspicious activity” has taken place. How arrogant of the inventor to walk around claiming he is both the first and the last word in determining what is suspicious activity when Courts have been grappling with the concept for hundreds of years in the real world and still can’t reach a consensus. But the same problem that will lead to a 112b invalidation also renders the underlying subject matter ineligible.

    The only way this case could have been correctly decided as eligible would be to hold that the hierarchical nature of the analysis constituted an inventive concept. That would be wrong, because, you know, multiperson police forces preexisted, but at least it would be wrong in a manner consistent with distinguishing from precedent.

    Yes, the Federal Circuit just upheld something that occurs every day in every multiperson investigative body: a police station, an insurance company, even the courts themselves – deploying a plurality of monitors, detecting suspicious activity based on analysis of the monitors, generating reports of suspicious activity, and integrating those reports – simply applied to in a particular field of use by using conventional software, as non-fundamental eligible invention.

    1. 7.1

      While I agree that this network security invention should be eligible for patenting – the court’s analysis does not provide a convincing foundation for that result.

      Patrolman on foot: “Dispatch I have a robbery suspect running southbound on Elm at 53rd street. Young. Male. White cap.”

      Dispatcher: “Overwatch, we have a suspect fleeing at Elm and 53rd”

      Helicopter: “Roger Dispatch, I see a young male in a white cap turning west down 54th at a pretty fast clip”

      Dispatcher: “Be advised patrol, your suspect is going west down 54th.”

      Now do it on a computer with conventional network monitors.

      If only there was some sort of abstract idea one could think of to really handcuff the essence of what this invention is drawn to. I’ve been investigating prior case law and can’t really detect anything that’s perfect. I may take a break as the work is very arresting. I know it’s a cop out, but I’m secure in the knowledge it will come to me eventually. Also, some pun on the word Police.

      1. 7.2.1

        …let me know about all those patent applications you have examined and made 102 rejections based on “largely but not fully“….

      2. 7.2.2

        If you read “network monitor” broadly enough to cover “IT guy who’s job is to monitor a network”, then you’ve got clear anticipatory prior art in packet sniffing analysis texts going back decades:
        “Deploy a plurality of network monitors” – hire IT staff
        “detect, by the network monitors, suspicious network activity based on analysis of network traffic data” – IT staff notices network is running slow, uses Wireshark or another sniffer to identify that some device is constantly pinging a Chinese server
        “generate report of said suspicious activity” – IT staff writes report
        “automatically receiving and integrating the reports of suspicious activity” – boss adds report to pile of other reports

        Priority date on the patents is November 1998. Wireshark (fka Ethereal) was released in July 1998.

    2. 7.3

      I think there is a valid difference. Using a computer as a tool to solve a non-computer problem is different than configuring a computer to specifically solve a computer-based problem.

      Monitoring a building or providing building security is not a computer problem.

      Configuring a computer used to monitor building security to prevent a burglar from being able to disable the computer improves the security operation of the computer itself.

      The first is not eligible and the second should be.

      1. 7.3.1

        The “x operation of the computer” language gives away the game. As RG and I and many others have been pointing out since forever, computers exist to carry out logic operations on received or stored data. The computing machine doesn’t care about the content of the data or the meaning of the data or the purpose of the data.

        A claim that describes an improvement to a computer’s functionality will not include terms like “security” or “suspicious” or “bingo” or “cancer” or “authentic” or “video”. As soon as any data-descriptive terms start showing up, that’s a red flag that computing itself is not being improved. Rather, the computer is just being used to do what it’s always been intended to do: process data, any data, according to instructions given to it.

        1. 7.3.1.1

          I am sorry but where in the version of 35 USC 101 that Congress wrote do you see that such may not be eligible for patenting?

          And please base your answer on the proper understanding of the two parts of 101:

          Is the claimed invention placed in at least one of the statutory categories?

          and

          Is the utility presented that of the Useful Arts?

          Anything else from you is merely mockery (and placing yourself in the same ‘class’ as Random is not a feature, but a bug.

          1. 7.3.1.1.1

            I don’t see “logic” or “information” listed in 101 as eligible subject matter for protection by the patent system. Nor has Congress ever stated that those classes of things should be the subject of the utility patent system.

            Thanks for proving my point about the typical born yesterday trolling games that you play, by the way.

            1. 7.3.1.1.1.1

              Great – you do realize that software innovation is not “logic” or “math” – as I have tried to engage with you in an inte11ectually honest manner for several years now, right?

              Your attempt to dissemble otherwise is well known. As is the number one meme of yours of Accuse Others. Anytime that YOU want to stop Tr011ing, please do so.

              1. 7.3.1.1.1.1.1

                Yawn. The endless mindless trolling by Dennis’ favorite son continues.

                Self-serving conclusory statements that contradict reality are notwinning arguments, Bildo.

                Try again.

                1. Self-serving conclusory statements that contradict reality are notwinning arguments,

                  Malcolm’s Accuse Others meme – to a perfection.

              2. 7.3.1.1.1.1.2

                software innovation is not “logic” or “math”

                That contradicts what ordinary artisans have admitted to the PTO for years, and it also contradicts what skilled artisans tell me and their “investors” all the time. Heck, software companies routinely incorporate variations of “logic” into their company’s names.

                But it is a wonderfully self-serving conclusory statement that must sound like music to the ears of someone like you who has chosen to avoid engaging in any discussion on the merits for years (choosing instead to tr 0ll this blog with and endless stream of sockpuppets instead). Now go cry yourself another river.

                1. We’ve been over this many times now, Malcolm – you are attempting to NOT take terms of art as they are understood to a Person Having Ordinary Skill IN THE ART.

                  In other words, you are dissembling.

                  Of course, I point this out to you with reference to that self-same described terminology and the another different aspect that warrants a different form of IP protection (copyright, and the FACT that you may not have copyright on math or logic).

                  There is NOTHING “wonderfully self-serving conclusory” about MY contributions to the dialogue.

                  Lastly, you (yet again) dip into a meme that better describes you with the stream of sockupppets, seeing as you have used FAR MORE THAN I in the last seven years, spanning not only this blog but the PatentDocs blog.

                  You “conveniently” forgot about that, eh?

                2. The fact that you don’t like what is said does not mean that what is said is gibberish.

                  YOU may be merely experiencing an offshoot of that “one-bucketing” thing you do in being unable to comprehend a view outside of how you feel.

        2. 7.3.1.2

          You don’t get to police the terms of patent claims. They are to be interpreted as understood by those skilled in the relevant art. In many scenarios terms like “security” have very specific and definite meanings; everyone in field knows what it means. For instance a “security token” in an brokered authentication system … everyone in that field knows what the word “security” means. For that matter, everyone knows what “video” is. You can look at any real world object and say, “yes”, that’s video, or “no it’s not video”. There’s no uncertainty and nothing abstract. A term like “suspicious” has no place in a patent claim. Sorry, but data-descriptive terms are fine and going nowhere. If a claim recites a “prime number”, everyone knows what it means and it ain’t abstract. If a claim recites a hash of a file, it’s pretty clear.

          “The computing machine doesn’t care about the content of the data or the meaning of the data or the purpose of the data.” Is that what you call reasoning? Thanks for yet another laugh. Machines don’t “care”. And they don’t need to know the nature of any piece of data. That’s a non sequitor. It’s enough that the world of would-be infringers know the nature of the data _they_ are using and whether it meets the language of the claim.

      2. 7.3.2

        Why?

        They are both eligible. The work piece doesn’t matter.

        You think building security should not be eligible because you think its known to use a computer to monitor building security. You think computer security hasn’t been perfected yet, so you accept that there might be new ways to do that that should be patentable.

        But a new way to use a computer to monitor building security should be eligible for patenting too.

        1. 7.3.2.1

          They are both eligible. The work piece doesn’t matter.

          They both stand or fall together, that’s for sure. I agree that as a matter of first impression one could come out the other way (obviously I personally disagree and think EPG was rightly decided) Unfortunately, this is not a case of first impression, and the previous case was ruled ineligible.

          But a new way to use a computer to monitor building security should be eligible for patenting too.

          A new way to do something only speaks to whether something is anticipated. The question is whether conventional analysis such as integrating information from two disparate sources is eligible subject matter when the integration posed no technological difficulty in achieving. Being able to put two disparate pieces of information together is a fundamental act of consciousness that nobody invented, and it does not make sense that it should be subject to continual re-monopolization just because it keeps being performed in different conventional contexts.

          The question is whether the founders intended a society where whenever someone invents a non-obvious tv or car they can also claim “evaluating my non-obvious tv” or “putting together two reports about my non-obvious tv” or “mathematically calculating the cost of my non-obvious tv” or “advertising my non-obvious tv” or even “shining a light or taking a picture of my new non-obvious tv” such that acts such as evaluating or integrating information or even using a camera that have been available to us for long periods of time get constantly taken away from us over and over and over again. The supreme court says they did not.

          If I have a 20+ year old camera, the suggestion that the only reason I can actually use it to take a picture of something is because inventors have not been asserting the full scope of their rights is ludicrous. Everywhere you look people are utilizing non-obvious technology that is less than 20 years old. And yet when I take a picture that happens to capture an image of a new smart phone, it’s not because the smart phone inventor has dedicated some of his rights (a method of taking a picture of my non-obvious smartphone) to the public that makes my act non-infringing, but because the inventor was never able to use his non-obvious invention as a vehicle to really scoop up my dedicated-to-the-public camera usage in the first place. The law is capable of seeing that attempt to re-monopolize my camera for what it is – the smartphone operator is compensated for his invention by restricting the making and using of the smartphone, not by restricting the use of my camera.

          Similarly, the law under EPG is that one cannot remonopolize conventional analysis (which, just like the camera has already been dedicated to another inventor or to the public) just because the analysis is performed by a conventional tool for helping us to analyze things. This is not a case where the art needed a technological teaching in order to achieve analysis. The art already could make the processor perform the analysis. This is a situation where something is allegedly non-obvious because there is a new non-obvious target of conventional analysis. The non-obvious target (suspicious computer network activity) does not allow remonopolization of the conventional act (integrating information) just because the conventional act always has utility. This guy didn’t invent integration of information, and there is no problem in ordering a computer to integrate information, so he can’t have a patent on a computer integrating information, regardless of how non-obvious the subject of the information integration act is or how useful (and this will ALWAYS be the case for all time) it is to use a second point of information when thinking about things.

          Analysis, like math (for example) always has a benefit. As I sit here right now I will tell you that you can analyze any invention that will even be invented, even though I don’t know what the inventions are yet. You can perform statistics on any invention that will ever be invented. And yet, a claim that includes a new non-obvious invention as a subject or target can’t be rejected under obviousness. It needs a 101 rejection in order to keep the analysis and statistics that I already know can be applied to anything free to use.

      3. 7.3.3

        Using a computer as a tool to solve a non-computer problem is different than configuring a computer to specifically solve a computer-based problem.

        That’s a difference in fact but not a legal difference. Ineligibility is not a question of “does this improve a computer” as “improving a computer” is not the only means that an invention that includes a computer can be eligible. The logic you’re referencing is DDR Holdings, which held that the claim did not merely describe an analog business practice in the digital world, the claim was eligible because in the act of porting the analog practice to the digital world, a specific computer-only problem presented itself, and the specification taught a solution to that problem. Because the invention solved a technological problem, it was not directed to the ineligible act of a preexisting business practice simply “applied on a computer.”

        The logic was not that improving a computer as opposed to, e.g. improving a power grid has some extra eligibility. The logic was that because a technical problem was being overcome, the claim was not JUST the act of moving an analog act to the digital world. Machinery that assists in security is a technological art. Solving an issue with that machinery is just as eligible as solving an issue with computers.

      4. 7.3.4

        “Monitoring a building or providing building security is not a computer problem. ” I have written patents on this subject. There are many novel ways a computer can assist in monitoring a building. Of course, if you just call it “monitoring a building, on a computer”, that’s out. But there are many different ways that the goal can be patentably furthered.

    3. 7.4

      You are not paying attention.

      The larger issue here is that the scoreboard is broken.

      This is the very type of “ping-pong” that I have been trying to put your nose to since the Judicial Branch got their paddles out and started the volley of Common Law law writing.

      As written by Congress, 101 is much more simple and direct, with only two (very low) bars:

      Define the claimed invention in at least one statutory category.

      Have utility within the Useful Arts.

      All else is muckery.

      1. 7.4.1

        Yep – this is all very solvable with 102 & 103.

        By now using a computer as simply a tool to apply a prior process is obvious. I think most would agree with that.

        1. 7.4.1.1

          See the XKCD panel on “tasks.”

          The “its only automating” should not be allowed to persist, as it is too much of a lazy manner.

        2. 7.4.1.2

          That’s been the case for easily over a half century now.

        3. 7.4.1.3

          “Solvable”? What are you suggesting is the problem?

          The proponents of software patents have historically howled like little spoiled babies at every reasonable effort to rein in the chaos.

          Of course using a computer for its intended purpose is an obvious use of the computer. That kind of reasoning has historically been ignored because it doesn’t yield the desired result.

          1. 7.4.1.3.1

            please stop the Tr011ing, Malcolm.

            Your attempted dissembling here as been disposed of at least as far back as the Grand Hall experiment.

            What you attempt here is some untenable “global” treatment of lumping ALL action (of a type) to be nothing more than the same action.

            There is NO legal, rational, or factual ground for such treatment.

            This is also directly related to my put-down of you vis a vis the “logic” of the Big Box of Protons, Neutrons, and Electrons, as any such “Big Box” (according to your ‘logic’), makes obvious ANY and ALL future configurations of protons, neutrons, and electrons.

        4. 7.4.1.4

          And 112(f) as well. If more method claims, like “integrating the data,” or “processing the data,” was read as 112(f) step-for claims (“A step for processing the data”) then a lot of this would go away.

          The fact we are in now is that: “an apparatus comprising: a processing module configured to process data” is likely to be read as 112(f) and limited to the processing algorithm disclosed, whereas

          “a method comprising: processing data using a processing model” is for some reason not likely to be read as 112(f), and would not be limited to nay specific algorithm.

          1. 7.4.1.4.1

            KSmith,

            That is nothing new, and traces directly back to the Act of 1952 and the abrogation of Haliburton. Federico himself noted that Congress opened up the spigots on the use of terms sounding in function (and let me remind you, that this attribute is NOT limited to 112(f), as many here seem to errantly believe).

      2. 7.4.2

        And like clockwork, the silly whining about the Supreme Court is dropped.

        Yawn.

        1. 7.4.2.1

          Your mindless and empty ad hominem is noted.

      3. 7.4.3

        The larger issue here is that the scoreboard is broken.

        “I don’t like the Supreme Court”

        As written by Congress, 101 is much more simple and direct, with only two (very low) bars:

        “Therefore, I reject the Court’s authority to construe statutes and substitute my own construction.”

        This is the very type of “ping-pong” that I have been trying to put your nose to since the Judicial Branch got their paddles out and started the volley of Common Law law writing.

        “And because the lower court does not like it either, our combined failure to follow the Supreme Court means that there is now a dispute which justifies us overruling the Supreme Court.”

        Alice was now decided almost five years ago. Congress knows what the court said. Congress has not acted. The Court had the power to construe the statute in the first place, and Congress’ failure to redress the Court means the Court’s interpretation was correct. The fact that YOU disagree with the Court doesn’t mean you get to grab Congress and say “they agree with me” when their inaction shows that they do not.

        There are patents whose life term is a quarter over who have never been subject to anything other than “broken scoreboard” Alice logic. How long will it be before you accept that things are what they are?

        I would call you a terrible lawyer except I don’t think anyone here who matters has any thought that you might be otherwise. Anyone who actually gave your advice to clients would end up disbarred. The Supreme Court, whether you like it or not, is superior to the federal circuit and most certainly to an anonymous internet troll in its ability to construe section 101, and Congress does not move to rebuke their interpretation. This is what 101 is.

        Go take your ball and go home for a good cry and nap time. Actual people want to discuss things.

        1. 7.4.3.1

          Therefore, I reject the Court’s authority to construe statutes…

          S I G H

          This has nothing to do with either of this merely being something I like or not, or with the Court “construing” the Statute.

          This is not a matter of “interpretation,” as it is a matter of the Court writing patent law in the first instance (according to the Court’s desired policy aims).

          This is not a new point and one that you should not be misrepresenting.

    4. 7.5

      Ten paragraphs from Random at post 7 and only the second (which is not written by Random) stands without blatant error.

      It’s downright scary that your job is examining patents.

    5. 7.6

      “Yes, the Federal Circuit just upheld something that occurs every day in every multiperson investigative body: a police station, an insurance company, even the courts themselves – deploying a plurality of monitors, detecting suspicious activity based on analysis of the monitors, generating reports of suspicious activity, and integrating those reports – simply applied to in a particular field of use by using conventional software, as non-fundamental eligible invention.”

      Don’t look now, but you are arguing that it should not be eligible because it is known/obvious.

      Please don’t conflate 101 with 102/103.

      1. 7.6.1

        Don’t look now, but you are arguing that it should not be eligible because it is known/obvious.

        No I’m arguing that it should not be eligible because it is fundamental. You have the ability to consider two pieces of information (two “reports” if you will) about any subject you wish. You know that you can consider two pieces of information about old things. You know that you can consider two pieces of information about new things. You know that you can consider two pieces of information about things of which you do not currently have any knowledge and indeed may not even yet exist, because the *subject* of thing about which you think does not fundamentally alter your ability to combine two pieces of information. You cannot live in an ordered society if every time someone invents a new technology, they can encroach upon your fundamental analysis by claiming their new non-obvious widget as the subject of your conventional analysis act.

        Either you believe mental steps are eligible for patenting or you don’t. If you do, you simply live in a fundamentally different world than the Supremes, one where the state has been given the authority to allow others to encroach upon your preexisting mental analysis, and we’re at an impasse. If you conclude that the mental act cannot be the subject of patent protection even if the claim as a whole contains non-obvious subject matter, then you’ve already crossed the relevant rubicon in the analysis. The fact that a computer aids in the analysis because a processor can simulate logical processes makes no difference *if the art had no technical problem in getting the processor to perform the analysis.* Preexisting thought should not become controllable by the state because a conventional processor is used to aid in the analysis any more than a person’s sight should become controllable by the state just because a person wears conventional glasses.

        In other words, I suppose there are some people who would say that “Looking at my non-obvious widget” is a valid method claim, but probably not many – most people would realize that one’s invention of the widget was not intended to give them power over another’s eyes. It makes little sense to then say “Looking at my non-obvious widget, where the looking is performed with the conventional aid of glasses” is more valid – the widget inventor had as little to do with creating the glasses as he did with creating the eyeball. Similarly, “Thinking about the security of my non-obvious widget” is ineligible, as is “Thinking about the security of my non-obvious widget, where the thinking is performed with the conventional aid of a processor” seems just as invalid.

        Moving the mental step from the user’s head to a computer that can simulate the mental step, when no technical problem exists in performing the move, is an attempt to remonopolize the dedicated-to-the-public processor to perform the fundamental dedicated-to-the-public mental act, just as the glasses claim is an attempt to remonopolize glasses to get at the fundamental act of seeing, even though all you did was invent a widget.

        In short, I argue for the entirely unsurprisingly conclusion that the intent of the founders was that the reward of the patent has to have some reasonable nexus to what was actually invented, and that a smart lawyer can’t game the system to direct a claim to something they had no hand in creating (the fundamental act of integrating information) and only tangentially includes what they did (apply it in a particular field of use with a particular subject of the analysis).

        1. 7.6.1.1

          Fundamental?

          No.

          Sorry, but:

          deploying a plurality of network monitors in the enterprise network;
          detecting, by the network monitors, suspicious network activity based on analysis of network traffic data selected from one or more of the following categories: {network packet data transfer commands, network packet data transfer errors, network packet data volume, network connection requests, network connection denials, error codes included in a network packet, network connection acknowledgements, and network packets indicative of well-known network-service protocols};
          generating, by the monitors, reports of said suspicious activity; and
          automatically receiving and integrating the reports of suspicious activity, by one or more hierarchical monitors.

          is not a fundamental building block of human ingenuity.

          You are distilling the claim down to a gist or abstract idea and then calling the gist or abstract idea an abstract idea.

          This claim clearly improves computers to deal with a problem created by the use of computers. It represents eligible subject matter, even if we didn’t Enfish to point to.

  6. 6

    “This results-oriented decision”

    The CAFC in a nut-shell. Too busy second-guessing fact finders to “do law” like the other Circuits.

    1. 6.1

      Maybe they learned that lesson from the fire-hose wielding Supremes…

  7. 5

    I was curious as to what this decision says about the apparent award of full billing rate attorney fees to the patent owner [a significant win here, with only minor Court required modifications], so here it is: “The district court further explained that “Cisco’s litigation strategies in the case at bar created a substantial amount of work for both SRI and the court, much of which work was needlessly repetitive or irrelevant or frivolous.”
    “Indeed, the district court inventoried Cisco’s aggressive tactics, including maintaining nineteen invalidity theories until the eve of trial but only presenting two at trial and pursuing defenses at trial that were contrary to the court’s rulings or Cisco’s internal documents.”
    The attorneys are not named, even though that might be of interest to some future more cost sensitive defendants?

  8. 4

    Just a reminder that Judge Stoll was part of the Electric Power Group panel (with Taranto and Bryson).

    1. 4.1

      … that would seem to imply an even greater reaction against how EPG has been abused and over-applied.

  9. 3

    The very serious Dennis Crouch:

    I agree that this network security invention should be eligible for patenting

    … because why? Because people won’t process data collected by sensors unless we hand out 20 year monopolies on logic? There’s just not enough money or interest in data processing or protecting information without 20 year monopolies on logic, arbitrarily handed out by a patent office which has shown ZERO interest over the past quarter century in developing any formal constraints on the manner in which logic is described and examined?

    Gosh knows, Dennis, that you’ve never provided any helpful guidance in that regard (at least that I can recall). Except, of course, for your “feelings” that certain shiny things just deserve to be protected by the same utility patent system that was designed for an utterly different purpose.

    this case here could also be seen as a close analogy to the court’s recent cases distinguishing between methods of diagnosis and methods of treatment.

    [eye roll]

    What’s the “close analogy” exactly? On one hand (this hand) we have the CAFC muddling its way through their own utterly incoherent mess of cases dealing with the (illegal) patenting of logic executed by a computer. On other hand (let’s call it the “Vanda” hand), we have a CAFC panel clumsily attempting to draw a distinction between plainly ineligible “determine and infer” claims and claims that (allegedly) describe a non-obvious transformation of tissue brought about by the administration of a composition. So what’s the “close analogy”?

    1. 3.1

      Quit pretending you can have any kind of reasoned discussion about eligibility, or that there are any right or wrong decisions. The entire bar is in agreement that the body of law is wildly subjective. Quit your complaining. Your myopic view about modern technology is fun, though. It’s like seeing a Neanderthal man at the Wax Museum.

      1. 3.1.1

        Quit pretending you can have any kind of reasoned discussion about eligibility,

        LOL What?

        The entire bar is in agreement that the body of law is wildly subjective.

        What was “subjective” about the ineligibility of the claim in Prometheus v. Mayo? Or any claim that recites (1) obtaining data using prior art tech and then (2) thinking about what it means?

        And if these things are so “subjective”, why is it the case that a lot of patent attorneys can predict the outcome of most ineligibility cases with high certainty? Golly, I fear for your clients.

        Your myopic view about typing instructions into a computer is fun.

        Fixed for accuracy. Is typing instructions into a programmable computer an example of “modern technology”? Tell everyone. If the answer if yes, then explain to everyone why all methods of typing instructions into a programmable computer are ineligible, as are the instructions themselves. Can you name another “art” where the process of creating the “technology” is ineligible across the board (a fact about typing instructions for carrying out logic that isn’t even controversial!), but (bizarrely) but the “technology” so created is (sometimes!) eligible?

        It all seems more than a bit odd when we are constantly told here by self-important “tech” bl0whards like yourself that information and data processing are “just like every other technology” … except hotter and trendier (and therefore so important that we must never question it’s suitability for inclusion in a patent system that was created for something entirely different). Talk about being “myopic.” Step out of the patent system for a second and appreciate that most of the people doing the work in this “art” think that patenting software is an incredibly silly idea. The most vehement opposition to that view comes from the people who have the most to lose: i.e., patent attorneys who stink at everything except for churning out the j u n k i est provisional applications ever written in the history of the universe for the worst companies in the history of the universe.

        1. 3.1.1.1

          Big
          Box of
          Protons,
          Neutrons, and
          Electrons…

        2. 3.1.1.2

          That’s your idea of a “reasoned discourse”…?

      2. 3.1.2

        Yes it’s difficult to have “reasoned discourse” about the patenting of logic when tr o lls like Bildo et al disrupt every effort to do so and absolutely refuse to engage beyond screeching that the “Supreme Court is teh bad!” and “the statute says ‘process’!”

        1. 3.1.2.1

          Lovely Accuse Others from you Malcolm – as I have been one trying to drag you to actually have a dialogue — in an inte11ectually honest manner — on the substantive points.

          Instead, it is YOU that employs an “internet-style shoutdown” by mouthing the exact same script and NOT engaging on the counter points presented.

          The difficulty is decidedly NOT how you attempt to spin things here.

    2. 3.2

      “because why”

      Probably because he sees it as analogous to a physical lock placed on a typewriter from the 40’s.

      1. 3.2.1

        Missouri grass will do that to you.

        LOL

        Get out of the darkness, Dennis.

      2. 3.2.2

        6,

        The analogy you allude to would most definitely distinguish between patent eligibility and patentability.

        Which of course, is part of the larger picture here in how the Supreme Court broke the scoreboard.

  10. 2

    Network Monitoring and what?

    1. 2.1

      Perhaps inadvertent, but perhaps intentionally omitting ANY “and” and leaving the deciding factor to be “enough” in the first two words of the tile (thereby pointing out that the cabining of EPG is due to the MERE fact that this case is directed to computing systems (as opposed to being directed to electric power grids).

  11. 1

    Under the new protocol, EPG is NOT to be used as has been used — and notably, as indicated to be used by the comment of “What the majority fails to do here is to point to any particular aspects of the claimed invention that provide anything more than what other panels have identified as abstract ideas – receiving data; reporting data; and correlating data.

    That being said for work in the administrative agency, what this does in the land of Article III is further cabin EPG.

    1. 1.1

      Under the new guidance, EPG should not receive a 101 rejection.

      1. 1.1.1

        You are correct, Ben.

        Note as well on the previous thread that Malcolm should be (and is) taken to task for his strawman “argument” about a pendulum swing – and my reply (ever so timely) is exquisitely reflected in the immediate case.

      2. 1.1.2

        Under the new guidance, EPG should not receive a 101 rejection.

        Under the new guidance, it’s questionable whether Alice should receive a 101 rejection.

        1. 1.1.2.1

          See my very first posts on the new eligibility protocol.

        2. 1.1.2.2

          Agreed.

        3. 1.1.2.3

          It’s “practical”, after all. Fraud Iancu is pleased.

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