Physical-Realm: The Federal Circuit’s New Machine-or-Transformation

by Dennis Crouch

In Bilski v. Kappos, the Supreme Court issued three separate opinions — although all the justices agreed that physicality — machine-or-transformation — offers at least an important clue for deciding the issue.

  1. Five Justice majority opinion: “The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible ‘process.’ . . . [Rather, it is] just an important and useful clue.”
  2. Four Justice minority opinion: Arguing that a “business method” is not a “process” under Section 101, and that physicality “is a critical clue” for determining eligibility.
  3. Two Justice minority opinion: Explaining their view that only a “few patentable processes lie beyond” the machine-or-transformation test.

In InvestPic, LLC v. SAP America, Inc., No.  18-1199 (Supreme Court 2019), the question of physicality has been raised again. In that case, the patentee argues that the Federal Circuit has again recreated a physicality test for eligibility.

To reach [its conclusion of ineligibility], the Federal Circuit focused exclusively on whether the patent’s claims encompassed an invention in the “physical realm,” a requirement found nowhere in the Patent Act or this Court’s jurisprudence. The claimed novel process here
is a process that can only be performed by a computer; a human cannot perform the process. The Federal Circuit determined that the computer-executed invention does not touch the “physical realm” and therefore held it patent-ineligible.

With that basis, the patentee has asked the Supreme Court for its guidance on the following question:

Does the Federal Circuit’s “physical realm” test contravene the Patent Act and this Court’s precedent by categorically excluding otherwise patentable processes from patent eligibility?

Looking at the Federal Circuit’s decision in this case — it appears that the court has created a dichotomy with the world of ideas fitting into either (1) the physical realm or (2) the realm of abstract ideas.  The following excerpt from the Fed. Cir. decision is on point:

The claims in McRO were directed to the creation of something physical—namely, the display of “lip synchronization and facial expressions” of animated characters on screens for viewing by human eyes. . . . Similarly, in Thales Visionix Inc. v. United States, 850 F.3d 1343 (Fed. Cir. 2017), the improvement was in a physical tracking system. . . . Here, in contrast, the focus of the claims is not a physical-realm improvement but an improvement in wholly abstract ideas—the selection and mathematical analysis of information, followed by reporting or display of the results. . . . Some of the claims require various databases and processors, which are in the physical realm of things. But it is clear, from the claims themselves and the specification, that these limitations require no improved computer resources InvestPic claims to have invented, just already available computers, with their already available basic functions, to use as tools in executing the claimed process.

Note here, that the court did not give itself Bilski-style wiggle-room by suggesting that its physical-realm identity offered a “clue” to eligibility. Rather, the court held that the invention was not in the physical-realm (other than its use of computers) and therefore was abstract.  Now, to be clear, I believe that the InvestPic decision could be interpreted a different way. However, the easiest reading of the case is that the court meant what it said – the claim is directed either to something abstract or something physical.

In addition to the Bilski analogy above, this case here also runs parallel to Vanda where the court created the if-then rule that treatment claims are eligible.  The petition here also provides a list of Federal Circuit cases that the patentee identifies as not grounded in precedent:

  • Intellectual Ventures I LLC v. Capital One Bank, 792 F.3d 1363 (Fed. Cir. 2015) (using a § 101 analysis as a proxy for the independent § 112 inquiry);
  • Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016) (looking to whether a software program improves computer capabilities);
  • Exergen Corp. v. Kaz USA, Inc., 725 F. App’x 959, 966 (Fed. Cir. 2018) (finding a patent eligible in part because it took “years and millions of dollars” to invent).

The problem for the patentee in this case are the claims themselves.  Claim 1 of U.S. Patent 6,349,291 (as modified by reexamination and certificates of correction) reads as follows:

A method for calculating, analyzing, and displaying investment data comprising the steps of:

(a) selecting a sample space, wherein the sample space includes at least one investment data sample;

(b) generating a distribution function using a re-sampled statistical method and a bias parameter, wherein the bias parameter determines a degree of randomness in sample selection in a resampling process; and

(c) generating a plot of the distribution function.

The idea here is good — use a bootstrapping method to determine an appropriate predictive distribution of investment data rather than rely upon a predetermined distribution (such as the normal distribution).  However, the abstract idea analysis here could look a lot like it did in Bilski.

[Read the Petition Here]

 

78 thoughts on “Physical-Realm: The Federal Circuit’s New Machine-or-Transformation

  1. 11

    I have not spent nearly enough time reviewing this case and the technology to have a definitive opinion, but when I start to think about this case, I feel like any proponent of eligibility of claim 1 of U.S. Patent 6,349,291 under the current Mayo/Alice framework likely needs to be ready to address some variation of this argument:

    (i) The claim is directed to a mathematical formula for “generating a distribution function using a re-sampled statistical method and a bias parameter, where[] the bias parameter determines a degree of randomness in sample selection in a resampling process”. U.S. Patent No. 6,349,291, claim 1.

    (ii) This mathematical formula represents an ineligible abstract idea under the implicit judicial exception to 35 U.S.C. § 101 for abstract ideas.

    (iii) The claim does not include “‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].'” Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2357 (2014) (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 77-78 (2012)).

    That isn’t to say that I think that this claim is or should be eligible or ineligible (I express no opinion), merely that I think any proponent of eligibility needs to be ready to address this argument.

    1. 11.1

      It’s a method claim, that while using math is NOT directed to claiming the math itself.

      Distinguish:
      math;
      applied math; and
      MathS

      Your suppositions of (1) and (11) are thus in error.

      Anyone can do math and not infringe the claim – as the claim is taken as a whole and as an ordered combination.

      The claim satisfies 35 USC 101 in that both

      1) the invention is claimed in the Congress-dictated form of satisfying the requirement of fitting into at least one statutory category; and

      2) the invention as claimed provides utility within the Useful Arts.

      All else is ultra vires.

      Your supposition of (iii) is ultra vires in that Congress dictated exactly who has the authority (and responsibility) for saying exactly what is the invention. See 35 USC 112. It is simply NOT up to the Court to intrude and for its own policy reasons (even if those policy reasons merely arise to some nebulous “suspicion” and it is simply NOT in the Court’s place to denigrate “drafting efforts” that otherwise FULLY meet the statutory law that has been set forth by Congress.

      IF the Court is to deign that the law is insufficient, then the proper recourse is to THROW OUT THE LAW – the proper recourse is NOT to “rewrite” the law such that otherwise legal claims are deemed invalid.

  2. 10

    That was in reply to anon at 4.1.2.3

  3. 9

    Claim the process if you will.

    I’d just rather see you drop your particular “software is a component” of a computer claim.

    1. 9.1

      What you would “just rather” does not jive with reality.

      Sorry bert, I remain on the side of reality.

      Software is also not the execution of software.

      Just as software may have multiple aspects (thereby earning different IP protection under different IP laws for those different aspects), an innovation may well be expressed in the different modes of the statutory categories.

    2. 9.2

      ??? bert-software is a component of a machine. Reality. Try to deal with it.

        1. 9.2.1.1

          In the patent sense (understand the terrain, please), they MUST.

          No meaning => no utility.

          (your “record” is not the only thing broken)

  4. 8

    The SIIA comment (link to uspto.gov) from the Comments on Examining Computer-Implemented Functional Claim Limitations for Compliance with 35 U.S.C. 112 highlights one possible downfall for software based claims. Some authority just has to recognize a similar standard for “sufficient structure” in the invocation of 112f as they already do for the satisfaction of 112f.

    1. 8.1

      Except reality.

      Why do you think software doesn’t have structure? It is an outrageous claim. The ladders of abstraction and the structure of software are two of the first things taught in intro classes at the top engineering schools in the USA.

      I have degrees from two of the top 5 engineering schools in the USA in Computer Science.

      Reality. Try to deal with it. (And the structure is clear from the equivalence of software and hardware.)

      1. 8.1.1

        You misunderstand. I’m not saying software has no structure but rather the opposite.

        For a 112f limitation to be definite, the specification must disclose sufficient structure for implementing the functionality of the 112f limitation. The CAFC says that in this context, “sufficient structure” means both hardware and an algorothm.

        To avoid invoking 112f, the claim limitation must recite sufficient structure for implementing the functionality of the limitation. In this context, the CAFC says “sufficient structure” only means hardware.

        This arrangement is contradictory, and does not recognize that hardware alone is insufficient for implementing the functions.

        (In case it’s not clear, the above functionality is assumed to be of the ‘special purpose’ type)

        1. 8.1.1.1

          The CAFC says that in this context, “sufficient structure” means both hardware and an algorothm.

          Not so.

        2. 8.1.1.2

          In this context, the CAFC says “sufficient structure” only means hardware.

          Also, not so.

          I think that you are erring on what is permissible outside of 112(f) and that 112(f) provides for PURELY functional claiming.

          Let me (re)introduce you to a term, coined by Prof. Crouch, that is pertinent here:

          The Vast Midle Ground.

          1. 8.1.1.2.1

            “I think that you are erring on what is permissible outside of 112(f) and that 112(f) provides for PURELY functional claiming.”

            I think it’s abundantly clear that we disagree where the boundary for limitations falling within 112f is.

            And I an extremely comfortable being on the side that thinks “at least 23 silicon atoms configured to provide a graphical user interface” or “a fastener configured to harvest wheat” invokes 112f despite not being “purely” functional.

            1. 8.1.1.2.1.1

              Your comfort is part and parcel of your problem.

              You would be far better off (especially here) of being uncomfortable, and not liking the way that Congress changed the law in the Act of 1952, than indulging your comfort in your desired views.

  5. 7

    Remember all those silly comments about “the pendulum swinging back”?

    I do.

    This is a one way street, folks, and we all know how it ends. If you want to protect methods of instructing computers to do what they were intended to do, that’s fine. But shoehorning information and logic into the utility patent system is and always was a terrible idea.

    1. 7.1

      Remember all that silly “if you ignore half the cases, there are no contradictions in the case law” comments?

      It is LESS about any such “pendulum swinging back” and MORE about the contortions of Common Law law writing as invited by the Supreme Court that shows that the scoreboard is broken.

    2. 7.2

      I don’t think it is a good street to go to the end of, but I tend to agree with you that we (pro patent people) are losing and are going to continue to lose.

      Patent value is down 80 percent since the AIA was passed and patent applications for inventions made in the USA are down. My bet is that patent applications for inventions made in the USA will drop by 40 % in the next downturn.

      The writing is on the wall. No one thinks that patents are worth much anymore. Money is still being spent filing patent applications because many people just can’t believe that the patent system will not be rebuilt and there is a learning curve.

      My guess is that up to 80 percent of patent filings right now are merely the result of the filer not having caught up to what has happened or anticipating that things will get better.

      As soon as it becomes clear that things are only going to get worse, then the bottom will completely fall out.

      1. 7.2.1

        No one thinks that patents are worth much anymore.

        Tons of work in other areas of patent law. Of course, you need to have more skill/experience than writing instructions on a computer to be taken seriously as a working attorney/agent in those areas.

      2. 7.2.2

        “I tend to agree with you that we (pro patent people) are losing and are going to continue to lose.”

        I sincerely hope that once enough people believe this there’ll be a push for a compromise on software which leads to a renewed patent act that strongly protects claims to non-obvious algorithms and unambiguously provides no protection for claims to results.

        1. 7.2.2.1

          Ben, results claiming is claiming the known algorithms for the solution that gets that result. Functional claiming is claiming the known ways.

          I have posted links to textbooks that are used at MIT that say exactly this.

          1. 7.2.2.1.1

            …and let’s distinguish PURE functional claiming and merely using claim terms sounding in function and that otherwise fit into the Prof. Crouch coined phrase Vast Middle Ground.

    3. 7.3

      ” If you want to protect methods of instructing computers to do what they were intended to do, that’s fine. But shoehorning information and logic into the utility patent system is and always was a terrible idea.”

      Why? Because you say so? Because we don’t want to promote advancement in those areas? Please.

      All inventions are made from elements used for what they were intended to do. Inventions include springs because they are springy, screws and bolts because they hold things together, gears because they mesh with and turn other gears.

      That these elements exist does not make every assemblage of them anticipated or obvious.

      1. 7.3.1

        … let alone ineligible.

  6. 6

    Yes, Dennis, using mathematical tools (especially well understood ones!) to process data is a “good idea.” So, too, is the idea of using look up tables to speed up certain data processing tasks.

    Granting patents on such fundamentals data processing methods, however, is i n s a n e and absurd, hence the ongoing farce.

    McRo’s claims, by the way, were destroyed on remand.

    1. 6.1

      destroyed…?

      Are you again confusing and conflating eligibility under 101 and patentability under other sections of law?

      (hint: the answer is yes)

      1. 6.1.1

        I’m not confusing anything, Bildo.

        1. 6.1.1.1

          Ends do not justify the Means.

          Your posts here are the epitome of why this adage fits.

          To admit that you are not confused is to admit that you are purposefully getting these things wrong.

          That’s even worse than ignorance.

  7. 5

    Great result. Abstractions are ineligible. Math applied to data is ineligible.

    1. 5.1

      Math applied to

      Distinguish:
      math
      applied math
      MathS

      The second of which (also known as engineering) is a PRIME eligible factor of most all innovation.

  8. 4

    Bilski both at the CAFC and the SCOTUS is important to read. Had Scalia gone along with the four conservative justices this whole mess would have ended there. And had there been another justice with the liberals, then patents would have been pretty much ended for large areas of technology.

    What Bilski should tell us all is that the SCOTUS should not be making patent policy. They have no idea what they are talking about. Stevens believes that mental processing (i.e., information processing) is carried out in the spirit world. Ginsburg talks of worlds inside her computer that aren’t real as if they are not created by a machine or as if the processing is carried out by magic. Etc.

    Bilski is probably the best case to illustrate that the SCOTUS should be stripped forever of their jurisdiction over patent cases.

    Everyone should read Moore’s dissent (or concurrence) in Bilski as it correctly states that there is no principled way to distinguish between information processing patent claims and circuit claims. That EE is in the same boat as software.

    1. 4.1

      What is the antonym of “Physical Realm?”

      Are energy, heat, light, electricity and the like outside of the “Physical Realm?”

      Must something be able to be dropped on your toe (like an anvil — or a computer) be included in order to induce inclusion of “Physical Realm?”

      These questions (and more) MUST inform the discussion.

      That “more” includes the fact that the thought of software is not software, software is not math, software is a computing “ware,” and a design choice — read that as patently equivalent to the other computing “wares” of hardware and firmware, and let’s not forget either the Grand Hall experiment and anthropomorphication.

      1. 4.1.1

        Anon, the reality is that information requires space, time, and energy to process (and transform). These machines with software are machines to process information. They are in the business of doing the same types of jobs as our brains like the bulldozer did with our body.

        And, of course, light is physical. If we really want to get into it, then we would have to discuss quantum fields.

      2. 4.1.2

        link to digital-law-online.info
        Programs should no more be considered machine parts than videotapes should be considered parts of projectors or phonorecords parts of sound reproduction equipment.

        1. 4.1.2.1

          sorry bert, but this issue was long ago answered in the opposite manner to which you would prefer.

          And for good (and solid reality-wise) reasons.

          1. 4.1.2.1.1

            LOL

            Sorry, Billy: not how it works.

            1. 4.1.2.1.1.1

              See the Grand Hall experiment.

              (You know, another excplication that you have refused to engage and simply run away from).

              And yes, this is not a new counter point; just one that you have yet to engage in an inte11ectually honest manner.

        2. 4.1.2.2

          bert—no. Why is that specious argument made so often? My guess is that because people ignorant of science buy into it because it seems kind of the same to an uneducated mind.

          But we know that a video is not an information processing method. It is merely indicating values to be set on a display. The computer program is defining a method for the computer to perform. Etc.

          1. 4.1.2.2.1

            Why is that specious argument made so often?

            The existence of ASICS and the fact that software is not the thought of software and is but a design choice of computing “wares” (of the set of hardware, firmware, and software) demonstrates the extent of Kool-Aid propaganda that has run rampant.

            There is NO actual physics or “Physical Realm” basis for the exclusion of one of the computing design choice wares.

            Any and all “software” per se could be rendered in an entirely physical patent equivalent hardware form.

            This alone points out that those who are anti-software patent are really nothing more than anti-patent.

        3. 4.1.2.3

          bert,

          Your link does not support your case.

          Try to remember that an item may well have more than one aspect to that item and it is the different aspects to which the different intellectual property laws are geared to protect.

          Copyright: creative expression
          Patent: utility

          Software — as a computing ware — has the luxury of BOTH aspects of creative expression AND utility.

          It is fully reasonable that the different aspects obtain different protections under the different intellectual property protection mechanisms.

    2. 4.2

      Let’s NOT forget either that Stevens lost his slated majority position due in no small part to the fact that his “concurrence” would have directly over-ridden express words of Congress vis a vis an absolute ban on business method patents.

    3. 4.3

      So who should be making policy? For Europe, I propose the Enlarged Board of Appeal of the EPO. At least it has an idea what it is talking about. As can be seen from the trail of decisions left in its wake.

      1. 4.3.1

        MacDrei,

        Your proposal alights upon the differences in Sovereigns and how each Sovereign not only may, but had set for itself which element (branch) within its sovereign structure had the requisite authority to write any such law.

        In the US Sovereign, the writing (as distinguished from a true interpretative mode) has been singularly allocated – and that allocation was NOT to the judicial branch (and not even — or especially — to the Supreme level of that Branch).

        These are critical considerations in the coined term of the Kavanaugh Scissors.

    4. 4.4

      “There is no A principled way to distinguish between information processing patent claims and circuit claims.

      Novel circuits are those that would be non-obvious to a PHOSITA, and that person would clearly be a circuit designer. If the PHOSITA in the information case would be a designer of information processing instructions, rather than a skilled stock trader, or skilled mouth-animator, or skilled movie coupon schemer, you might have something. If the utility of the information processed turns on its meaning, we have a problem. We have a problem because meanings are constitutionally protected and entirely non-structural. Structure is important because all of patent law before the information age was targeted toward physical differences in the arts. Yet for policy reasons, we may want patents for non-physical results such as encryption, MPEG, various IT standards, etc.

      That problem is solved by understanding that meaning can only occur in a human mind. No human consumption of the information to achieve utility necessarily demands that the utility arises from something other than meaning and is more akin to a machine component or mechanistic process.

      Y’all know what I’m saying. Nobody has undone me yet, notwithstanding anon’s active….fantasy life…..people with open minds tend to come around to it because it works, it is principled, and it intuitively makes sense based on the structure of the patent act.

      1. 4.4.1

        What’s the “policy reason” for granting patents on math and logic, Martin?

        1. 4.4.1.1

          How goes your copyright project on math and logic…?

        2. 4.4.1.2

          MM, the policy reason for something like an MPEG standard or encryption scheme is to promote the doing of the work, so that when the work is done, the group(s) that make the investments can avoid free-riders, and the many users of the work could enjoy it’s utility where a business case would not otherwise exist to create that utility.

          FRAND is an important concept in that aspect. The work need not be creative- it’s usually is labor and communications intensive- but will not be non-obvious not in sense that PHOSITA would not think of doing it or know how to do it, but in the sense that the chosen form could not be arrived at randomly or independently.

          This is a serious policy consideration that even people in the business are willing to entertain, and just waving it away does not seem likely given the composition of the many district courts, CAFC, and USSC.

          1. 4.4.1.2.1

            a business case would not otherwise exist to create that utility.

            What utility? Data compression? You’re suggesting that there aren’t “business cases” for compressing data and, as a result, utility patents (?!?!) are necessary to motivate people to logically determine logical processes for compressing data?

            That’s a rather absurd proposition, Martin.

            Bringing up “standards” as a justification for logic patents is even more bizarre. The government could, you know, simply award the developers of the standard with some money. What’s the problem with that?

      2. 4.4.2

        LOL – I am not the one here in the active fantasy mode Marty – that would be you.

      3. 4.4.3

        Martin,

        Software has structure. EVERYONE in computer science agrees with this and it can be seen by the equivalence of hardware and software.

        Meaning to human being has always been given patent weight. According to you gauges would not be eligible for patentability. Plus, meaning has no patentable weight? What? So information like you have a cancerous tumor vs. a benign tumor aren’t important? Information like you are about to hit a child with your car are not important? Information like your engine is overheating is not important?

        What?

        1. 4.4.3.1

          Marty has never grasped what utility in the patent sense means.

          He wants to wage war on a terrain that he refuses to recognize.

        2. 4.4.3.2

          Gauges are machines, with structure. A new, non-obvious speedometer should get a patent.

          No, the scientific fact that you have a tumor should not get a legal monopoly. A machine that finds tumors, yes. My proposal starts and ends with methods, not machines, compositions, or manufactures.

          A new thermostat for my car is entirely eligible. The information that my car is hot, if used by my car for its own purposes, could be eligible if that information was part of a method that was otherwise patentable. Telling me that my car is hot cannot be protected by a legal monopoly.

          If you dont understand the distinction between a speedometer and the act of reading the speed from a speedometer, there is not much more I can do trying to explain my proposed doctrine.

          1. 4.4.3.2.1

            I don’t think you are being consistent. What about a display where you step in and it read tumor or no tumor?

            Why is that different than a speedometer? Plus you say it has structure on the gauge and speedometer, but you did not address the point that software has structure. And you gloss over that the speedometer may just be numbers on a general purpose display like in a Tesla.

        3. 4.4.3.3

          Ask Marty how his views treat traffic lights that — well before software — were patented for various improvements and were clearly meant to only provide information for human consumption.

          1. 4.4.3.3.1

            A traffic light is a machine or manufacture. A method of showing colored lights to drivers to tell them to stop is a social convention, and should not, by itself, be a patent eligible method. A new, useful, non-obvious construction of a traffic light should get a patent, and has zero to do with the information content of the traffic light.

            A traffic light is a classic semiotic case: The light is the vehicle, which should be patent eligible because the vehicle has no meaning in and of itself. Its metal and wire and such. The knowledge to stop is a social convention- an agreement among people about a meaning. It cannot be constitutionally monopolized without potentially running afoul of freedom of speech and association, at least, but if such a convention were established for machines to use- e.g. your car responding to the light- I could see eligibility. The meaning of traffic lights to society is entirely in the opinion of the beholder, and is even farther removed from patents.

            A speedometer is not a method. Using a normal speedometer output and placing it on a general purpose display in a Tesla, absent some new structure or new, non obvious, non human consumed information, is not an invention at all. Its simply the obvious and intended use of a monitor to display data fed to it, but you could dispose of it at 101 with my doctrine or use 103 in the normal course. Either way, no patent.

            1. 4.4.3.3.1.1

              I love how you are so eager to display your lack of the terrain vis a vis utility…

              classic semiotic case: The light is the vehicle, which should be patent eligible because the vehicle has no meaning in and of itself.

              IF the vehicle has no meaning, then it cannot possibly have utility in the patent sense.

              Wake up son.

        4. 4.4.3.4

          Bit of a naff argument. I’m sure every author would say that a novel has structure. And yet…

          1. 4.4.3.4.1

            Utility of the Useful Arts.

            Step up to the plate bert and accept what patent law is.

      4. 4.4.4

        No. I doesn’t make sense. Processes are eligible.

  9. 3

    Did you bunch of inventor nerds catch that the flick wrist axe is officially reduced to practice?

    link to youtube.com

    1. 3.1

      We British always knew we are the most inventive people on Earth. Shame about this particular inventor’s name though:

      link to linguee.com

      1. 3.1.1

        lulz he should have put fartz down as his channel name.

  10. 2

    The claims in McRO were directed to the creation of something physical—namely, the display of “lip synchronization and facial expressions” of animated characters on screens for viewing by human eyes. . . .Here, in contrast, the focus of the claims is not a physical-realm improvement but an improvement in wholly abstract ideas—the selection and mathematical analysis of information, followed by reporting or display of the results. . . .

    Did they literally try and distinguish the display of a mouth from the display of text or numbers? The display of animated characters “for viewing by human eyes” – who do they think the display of results is for?

    There is a reason to distinguish McRO, but that isn’t it.

    McRO is (allegedly, as I say I tend to disagree on the facts, but we’re talking about the legal logic here) a case where the patentee’s provided a technical teaching to the art of computers to actually allow them to code something they could not code before – a simulation of lip synchronization.

    This is a case where they’re applying math to data using a processor to process. The claims are entirely functional and not limited to particular steps at all. I’m willing to bet the specification contains no technical teaching, because its not difficult to code calculating machines to calculate math.

    Regardless, it’s clear what the Federal Circuit is doing here. They don’t like the fact that the vast range of subject matter they have to review does not lend itself to bright line tests, so they’re trying to force the Supreme Court to generate a test for them by using obviously-improper tests themselves.

    1. 2.1

      In McRo, what is it that is in “the physical realm”? Is it the display or is it lip movement synchronisation?

      I ask because if it is the display that is physical, well then so is, just as much, a display of “investment data”.

      I can see though, that lip movement synchronisation is more “physical” than investment data. More “technical” too.

      1. 2.1.1

        In McRo, what is it that is in “the physical realm”? Is it the display or is it lip movement synchronisation?

        The point is that “the physical realm” has no bearing on 101. Some of the court in Alice wanted to distinguish the computer from the method because of the clear physicality of the computer, but that didn’t save any of those claims. Physical has nothing to do with it.

        McRO is relevant in that it distinguishes someone who advances the art of computers by teaching coders how to code versus someone who uses a processor to process without having to teach the art anything. The former is eligible, the latter is not.

        I can see though, that lip movement synchronisation is more “physical” than investment data. More “technical” too.

        Why? Because you like pictures? What makes the picture identified as a mouth more eligible than a picture identified as representing two of something?

        The meaning (to a human) of information is also irrelevant, so long as it is conventional.

        1. 2.1.1.1

          You ask: why is the synchronisation of sounds and lip movements more “physical” than representations of stock prices on screen?

          My view of eligibility is influenced by i) the notion that technology is the application of the sciences of nature ii) sounds and lip movement are within the natural world iii) the EPC excludes from eligibility such things as methods of doing business, playing games and the mere presentation of information, and iv) thinking at SCOTUS/CAFC level (perhaps I’m imagining things here) that ways in which humans interact with each other ought not to be patented.

          Rightly or wrongly, I see physical sounds and physical movements as “physical” but stock pricing info as not really “physical”.

          1. 2.1.1.1.1

            MaxDrei,

            your iii) is missing the important “per se” and “as such” caveats (noting that lots of patents issue in through the EPC for the very things that you would indicate otherwise).

            and any “policy” driver from SCOTUS?CAFC as to “human interactions” is both fundamentally wrong in and of itself as well as an example of the wrong Branch of our Sovereign making law.

            I would “hesitate” to say that you have finally offered a definition of “technology” with your statement of: ‘technology is the application of the sciences of nature‘ but I would question you as to WHY you have the last two words in your quasi-definition. Why not just “application of science?” What in the universe is not (at bottom) of nature? magic?

            1. 2.1.1.1.1.1

              link to en.wikipedia.org

              Three branches to “modern science”: natural science, social science, formal science.

              In the Patents Clause of the Constitution of the USA, what does “science” mean? Specifically, did it mean anything other wider than natural science? SCOTUS, please tell us.

              1. 2.1.1.1.1.1.1

                I asked YOU why you would limit science to only natural science.

                You asking me what SCOTUS is doing is not an answer.

              2. 2.1.1.1.1.1.2

                Something that you may find interesting in formulating your own answer, MaxDrei (from that other blog):

                “It is settled science that software transforms computer systems into new quantum states that are functionally and demonstrably different. Indeed, the physical transformation of computer systems by software is the only explanation for how computers are actually useful.

    2. 2.2

      There is a lot of junk posted in the comments on this site (who knew patent attorneys were such an angry population), but you are consistently on point .

      1. 2.2.1

        Random is consistently OFF point – and refuses to engage on the merits of the counterpoints presented as to why he is off point (hence, what you may be picking up as “ang er”).

      2. 2.2.2

        Out of the total population of patent attorneys, how many per cent do the angry posters make up? Is it not a bit of a stretch to supppose that the population is angry. Seems to me it is about 3 angry ones in a population of, say, 30 thousand.

    3. 2.3

      Nothing wrong with sensible bright line tests as long as they are applied consistently. A prohibition on using patents to protect abstractions (in any context) makes good sense and it’s perfectly workable. If the Supremes dont like it, the CAFC simply needs to ask the Supremes to give an example of an eligible abstraction (i.e. a process carried out without a non-obvious transformation of matter and without the recitation of any non obvious objective structure) and to explain why THAT abstraction deserves to be excepted.

      1. 2.3.1

        You are asking for a lot of law writing from the wrong branch of the government.

        1. 2.3.1.1

          No writing required at all. “Abstractions” aren’t eligible subject matter according to the statute.

          [shrugs]

          And the Supreme Court and other courts interpret statutes all the time. It’s part of their job.

          [shrugs]

          1. 2.3.1.1.1

            Your shrugging here belies the fact that you have made posts fully indicating that what the Supreme Court has done is NOT mere interpretations.

            Or are you going to continue to dissemble as to how this Common Law law writing is entirely “OK,” and NOT producing conflicting and contradictory case law?

            Do you really want to display your lack of legal knowledge and abilities based on your uncontrolled feelings for a particular form of innovation?

  11. 1

    That’s some serious rewriting of history, given that all nine Justices rejected the CAFC MoT test.

    A clue is simply not a test.

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