by Dennis Crouch
Mario and Jose Villena have thus far been stymied in their attempt to obtain patent protection for their claimed “system for distributing real-estate related information.” The pair filed an international PCT application in 2004 followed by a U.S. non-provisional in 2005 that has been abandoned, and finally the present application in 2011. U.S. Patent App. No. 13/294,044.
The Examiner issued a final rejection in 2014 on several grounds – obvious and anticipated / indefinite / failed written description / ineligible subject matter. The PTAB sided with the applicant on most grounds — but affirmed the rejection based on failed eligibility. The Federal Circuit then affirmed — holding that the three claims on appeal “directed to the abstract idea of property valuation and fail to recite any inventive concepts sufficient to transform that abstract idea into a patent-eligible invention.”
The Villenas have now petitioned the U.S. Supreme Court for its views with some interesting questions. [SCT Docket]
Remember, that the Board sided with the applicant on obviousness and anticipation but then held that the claims did not recite any inventive concept. The first question asks the Supreme Court to reconcile these seemingly opposing holdings:
Question: Is it remotely plausible under any noncapricious administration of the Alice/Mayo test that five separate claim limitations can be completely unknown and nonobvious under Titles 35 U.S.C. §§ 102/103, yet at the same time be well-understood, routine, and conventional individually and as an ordered combination under an Alice/Mayo § 101 analysis?
One quirk of the Alice/Mayo framework stems from the disconnect between the purpose of the limitation and the elements of the test itself. As far as purposes, the Court has primarily focused on the potential that patent rights preempt the public use of basic building blocks of society and inquiry. In Alice, for instance, the court wrote: It is “the preemption concern that undergirds our §101 jurisprudence. . . . We have described the concern that drives this exclusionary principle as one of pre-emption.” Although the concern may be preempation, the test itself as implemented by the Federal Circuit does not actually consider preemption in its analysis — going so far as to hold that evidence of no-preemption is irrelevant to the eligibility analysis. In a second question, petitioner addresses this issue:
Does a requirement of “invention” and “improvement” under the Alice/Mayo framework violate the statutory language of Title 35 U.S.C. § 101, legislative intent, and the Supreme Court’s repeated edict … that preemption, not invention or improvement, is the sole criteria for determining exceptions to patent eligibility?
As part of its appeal to the Federal Circuit, the patent applicant also brought Administrative Procedure Act (APA) claims based — arguing that the PTO failed its statutory duty to analyze each claim limitation individually and the claims as a whole; cite substantial evidence; and act impartially. In its appellate decision, the Federal Circuit did not address these claims, and the third question asked in the petition address whether the Federal Circuit’s “refusal to address unlawful abuses by the
USPTO” an abuse of discretion.
Pending Claim 57 is seen as representative. The claim is pretty bold and basically requires a database of pre-processed home valuations within a geographic region and a map-like display of the geographic region showing the valuations. Zillow
57. A system for distributing real-estate related information, comprising:
one or more computers configured to:
receive user-provided information and determine a geographic region based on received user provided information;
produce a plurality of automated valuation method (AVM) values using residential property information, the residential properties being within the geographic region, the AVM values reflecting current market estimates for the residential properties;
provide display information to a remote terminal over a publically accessible network based on the user-provided information, the display information enabling the remote terminal to generate a map-like display for the geographic region, the map-like display containing at least: respective icons for each of a plurality of residential properties within the geographic region, the icons being spatially distributed relative to one another based on geographic information also residing in one or more computer-readable mediums; and an AVM value for at least one of the plurality of residential properties within the map-like display,
wherein each AVM value is pre-processed such that an AVM value for the at least one residential property pre-exists before a user query of the respective property is performed and wherein the one or more computers update each of the AVM values without requiring a user query.
Villena’s attorney Bud Mathis has written several articles on eligibility over the past couple of years for Quinn’s IPWatchdog. [Link]
To Martin’s post:
Please someone tell me of an invention that is more than just the idea?
“the formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention as it is thereafter to be applied in practice….”
So—the invention is a complete working system. How can it be more than this?
(Really sic k of these f il th b a g judges.)
>>Plaintiff also argues that the Patent Office’s continued issuance of substantially identical patents supports its position. (D.I. 30 at 10-11). This argument is similarly unpersuasive. Patent examiners are non-lawyers. An examiner’s opinion on the legal question of patent eligibility does not relieve a patent attorney from her obligation to make an independent assessment based on an evaluation of the relevant law.
Unless there is some new case law that is relevant (which was not cited by the Court), then this is legally incorrect. The statute says the opposite that the lawyer can rely on the issuance of the patent to rely on its validity.
Below, I cited the actual section of law, to which Malcolm attempted to denigrate as he celebrates the LACK of Rule of Law in this decision (and wants more, because this is anti-patent).
Go figure, right?
It is just crazy. Had the judge cited case law between the issuance of the patent and the filing of the infringement action, then there would be an argument. But without citing a case the judge is legally incorrect. Plus, the patent issued fairly recently and definitely after Alice.
(I know how to cite to the statute too, but come one. Everyone knows the presumption of validity.)
“Everyone knows the presumption of validity.”
Except — apparently — those too eager to celebrate a Desired Ends that was reached.
The Means being a flagrant breach of the Rule of Law? Meh, these types just don’t care as long as they have the End align with what they want.
Marty? Well one can see his absolute lack of legal understanding, but Malcolm professes to be an attorney.
Finnavations LLC v. Payoneer, Inc., Civil Action No. 1: 18-cv-00444-RGA and 1: 18-cv-00445-RGA (Mar. 18, 2019)
“The plaintiff argued that the Examiner’s allowance of the ’755 patent after four § 101 rejections showed that it was reasonable to have asserted the patent. The plaintiff also argued “that the Patent Office’s continued issuance of substantially identical patents supports its position.” [b]The court rejected both arguments. Plaintiffs are not relieved of their ability to independently evaluate patents before suing, and patent examiners are not lawyers competent to give legal opinions on patent-eligibility.[/b] And the court was not worried about “a ‘chilling effect’ on patents.” Instead, the court saw benefit in chilling patent assertions “without first assessing the patent’s weaknesses considering current case law.”
Too funny. Someone should inform the PTO. Judge Andrews speaking truth.
“and patent examiners are not lawyers competent to give legal opinions on patent-eligibility.”
That sorta makes the whole process pointless, don’t it…
sigh…
The PTOs continued issuance of ineligible j u n k is the reason that 101 is increasingly important in the courts. The fact that the PTO is presently being managed by a fraud T r um pist only makes the problem worse.
I assume nobody em who reads this blog is surprised by this. There is no swinging back of the pendulum. And there never will be.
[shrugs]
“There is no swinging back of the pendulum. And there never will be.”
There is also no contradictions in the Common Law law writing on 101 from the courts (that is, if you ignore half of the court cases).
Kind of analogous to no swinging of a pendulum, if you discount half of the swings.
Worth printing the whole opinion. Is MM moonlighting as a District of Del. judge? Short enough and interesting enough to print here:
Civil Action No. 1:18-cv-00444-RGA (D. Del. Mar. 18, 2019)
MEMORANDUM
Presently before me are Defendant Payoneer Inc.’s Motion for Exceptional Case and Defendant Stitch Labs, Inc.’s Motion for Attorneys’ Fees Pursuant to 35 U.S.C. § 285. (C.A. 18-444, D.I. 25; C.A. 18-445, D.I. 21). The Parties have fully briefed the issue. (C.A. 18-444, D.I. 26, 30, 32; C.A. 18-445, D.I. 22, 29, 32). For the reasons set out below, Defendants’ Motions are GRANTED.
I. BACKGROUND
Plaintiff filed Complaints against Defendants on March 23, 2018, alleging infringement of U.S. Patent No. 9,569,755 (‘755 Patent). (C.A. 18-444, D.I. 1; C.A. 18-445, D.I. 1). On May 16, 2018, Defendants filed Motions to Dismiss for Failure to State a Claim based on patent ineligibility of the ‘755 Patent under 35 U.S.C. § 101. (C.A. 18-444, D.I. 7, 8; C.A. 18-445, D.I. 9, 10). I heard argument on October 24, 2018 and granted the motions on November 26, 2018. (D.I. 22 ). Specifically, I found that the ‘755 Patent was directed to the patent ineligible abstract idea of bookkeeping and did not contain an inventive concept. (Id. at 7).
Unless otherwise noted, all references to docket items refer to the docket in C.A. 18-444.
II. LEGAL STANDARD
The Patent Act provides that “in exceptional cases [the court] may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285. Under the statute there are two basic requirements: (1) that the case is “exceptional” and (2) that the party seeking fees is a “prevailing party.” The Supreme Court defines an “exceptional” case as “simply one that stands out from others with respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014).
III. DISCUSSION
It is undisputed that Defendants are prevailing parties. Thus, the only issue is whether the cases are exceptional.
There is no question that the ‘755 Patent is patent ineligible under the Federal Circuit’s current precedent. In fact, the Patent is reminiscent of patents which courts were invalidating in the immediate wake of Alice, five years ago. Since Alice, the law of patent eligibility has perhaps become unpredictable and unclear on the fringes. But one thing has remained true: patents which look like Alice are ineligible. I have rarely been more confident in the patent ineligibility of a set of claims or more confident in the unreasonableness of a Plaintiff’s decision to sue on a patent. Thus, this case fits the bill of “one that stands out from others” with regard to the substantive weakness of Plaintiff’s litigation position.
I have resolved scores of Section 101 motions and seen a wide array of validity arguments. Usually the quality of an argument falls somewhere between good and mediocre. Infrequently, I have encountered arguments which I would classify as bad. Plaintiff’s defense of the validity of the ‘755 Patent was not just mediocre or bad; it was ugly.
Plaintiff informs me that the Examiner allowed the ‘755 Patent despite a remarkable four Section 101 rejections. (D.I. 30 at 2-4). It argues that this supports its position that it was reasonable to assert the patent. (Id.). I do not agree. All patents are issued by the Patent Office. A blanket application of Plaintiff’s position would effectively relieve patentholders from independently evaluating the strength of their patents prior to suing. This is problematic, however, as all plaintiffs have a duty to critically assess the merits of their case prior to suit. I will not adopt a position which relieves patent plaintiffs from that duty. The issuance of a patent cannot and should not be a license to sue with abandon. range
Plaintiff cites Stone Basket Innovations, LLC v. Cook Med. LLC, 892 F.3d 1175, 1180 (Fed. Cir. 2018), for the proposition that a patentholder is entitled to a presumption of good faith in filing an infringement lawsuit. This is not, however, inconsistent with my position. When deciding whether to award attorneys’ fees, “district courts [can] consider a nonexclusive list of factors, including frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.” Octane Fitness, LLC, 572 U.S. at 554 n.6 (cleaned up). The presumption of good faith mentioned in Stone does not bear on the considerations which compel my decision in this case: objective unreasonableness and deterrence.
Additionally, the four Section 101 rejections put Plaintiff on notice that its claims were of dubious patentability. As Defendant Payoneer notes, “four separate rejections on eligibility grounds should have given Finnavations pause before asserting the eventually-issued claims in litigation.” (D.I. 32 at 3). ——–
Plaintiff also argues that the Patent Office’s continued issuance of substantially identical patents supports its position. (D.I. 30 at 10-11). This argument is similarly unpersuasive. Patent examiners are non-lawyers. An examiner’s opinion on the legal question of patent eligibility does not relieve a patent attorney from her obligation to make an independent assessment based on an evaluation of the relevant law.
Plaintiff further argues that the law is unclear and that it made reasonable arguments in response to Defendants’ motions. (D.I. 30 at 11-15). I disagree. As I discussed in my Memorandum Opinion, the claims of the ‘755 Patent are “plainly directed at a patent ineligible concept” and “amount to no more than the underlying idea.” (D.I. 22 at 5). This was not a “borderline case” with an unpredictable result. Any reasonable patent attorney with an understanding of Section 101 law could have predicted the outcome.
Finally, Plaintiff argues that awarding fees will have a “chilling effect” on patents. (D.I. 30 at 19-20). It states, “If attorneys’ fees are awarded under the facts in this case, then there is no situation in which a patent owner could safely assert infringement of a recently issued patent without fear of being subject to attorneys’ fees if the patent is held ineligible for patenting.” This statement is overblown. More accurately put, awarding fees will have a chilling effect on asserting a patent without first assessing the patent’s weaknesses considering current caselaw. I do not view this result as a negative. Rather, it is a result that benefits the public generally by decreasing instances of transparently meritless patent litigation—one of the many goals of the attorneys’ fees provision.
IV. CONCLUSION
Plaintiff should not have filed suit asserting the clearly patent ineligible claims of the ‘755 Patent. Its decision was unreasonable under the law and its behavior should be deterred. Thus, I will grant Defendant Payoneer Inc.’s Motion for Exceptional Case (D.I. 25) and Defendant Stitch Labs, Inc.’s Motion for Attorneys’ Fees Pursuant to 35 U.S.C. § 285 (C.A. 18-445, D.I. 21).
“asserting the clearly patent ineligible claims of the ‘755 Patent.”
Until actually adjudicated, a granted patent is NEVER “clearly patent ineligible.”
See 35 USC 282(a).
What Bildo fails to appreciate here is that it is “attorneys” like him who end up costing their naive clients a lot of money, as this case proves. Bildo is, ultimately, a pitiful hack and a walking malpractice case.
I mean, just read this and laugh:
a granted patent is NEVER “clearly patent ineligible.”
That’s not how it works, Bildo. Nice try, though.
“What Bildo fails to appreciate here is that it is “attorneys” like him who end up costing their naive clients a lot of money, as this case proves.”
I’m sure some hack said the same thing about Jame’s Diehr’s invention circa 1982.
You can’t even formulate coherent arguments.
You can’t even formulate coherent arguments/I>
“Derp derp derp”
So sayeth Bud Mathis, the least coherent attorney on the planet and one of the worst patent attorneys who ever lived. Take the client’s money and run to the bank, Bud! You’re a very serious person and, as far as you know, you did not get your a$$ totally handed to you in this comment thread, thereby making f 0 0ls out of both yourself and your miserable client.
“So sayeth Bud Mathis, the least coherent attorney on the planet and one of the worst patent attorneys who ever lived.”
Whatever. You are still incapable of setting forth a coherent argument.
Again, you’re not a patent attorney, and you’re no form of attorney. You’re an angry shut-in
“That’s not how it works”
Please do explain how 35 USC 282(a) works, Malcolm.
Odds are zero that Malcolm will provide a cogent, let alone compelling, reply here.
Please do explain how 35 USC 282(a) works, Malcolm.
I’ll do better than that. I’ll explain how our legal system works, Bildo. The PTO grants patents. Those patents are “valid” (i.e., enforceable in court) until they are proven invalid in a court or they are invalidated in an IPR.
Regardless of the standard of proof required to achieve invalidation in those venues, however, skilled attorneys who aren’t in the business of committing malpractice or filing frivolous lawsuits are capable of recognizing a clearly ineligible or invalid patent claim when they see one. This is true regardless of whether the PTO has “granted the patent” or not. For example, if the PTO grants a patent claim to “A method of thinking that Bildo the Commenter on PatentlyO is a pile of toxic waste”, I am going to keep calling you a pile of toxic waste regardless, without fear. That’s because the claim is clearly ineligible and if you try to assert it against me, you will likely find yourself paying me, rather the other way around.
Now go back to your endless w @ nking, Bildo. Bud needs a back rub from you and you’re just the li’l puppy who can administer it with the greatest sincerity.
Contrast what I posted:
Until actually adjudicated,…”
With Malcolm’s backpedaling to my position:
“until they are proven invalid in a court or they are invalidated in an IPR.”
You do realize what 35 USC 282(a) means right?
You STILL have not explained that part.
Here’s what I wrote, you dissembling pile of toxic waste:
Those patents are “valid” (i.e., enforceable in court) until they are proven invalid in a court or they are invalidated in an IPR.
The point being that the legal/technical status of “validity” conferred by a PTO grant is just that, and only that. Claims can be certainly be “clearly ineligible” without being invalidated or “found” to be so by a court of law.
If you can’t understand this, then you’re a walking malpractice case or a con artist. Or both.
You walked back to the position that I had plainly stated in the very beginning and then want to call me dissembling….
That’s a special kind of Accuse Others right there.
“Until they are proven”
You seem to have said this twice now without appreciating what it means.
Maybe instead of getting upset with me (for being right), you might spend your energy understanding what it is that you agreed with me about.
Thanks for sharing, Martin. That’s beautiful and hopefully we’ll see a lot more of that.
I almost feel bad for these naïve people. Nah, I take that back. I don’t feel bad at all. These greedy tr 0lls deserve way worse than what they got. Probably a closer investigation of their operations would end up in prison sentences. Let’s cross our fingers and hope that their next grift fails but causes less damage and uses less public resources.
Yes there is nothing like an opinion from a judge that says I know I don’t like this and not only that I am not going to follow the law and make you pay expenses.
>>Plaintiff also argues that the Patent Office’s continued issuance of substantially identical patents supports its position. (D.I. 30 at 10-11). This argument is similarly unpersuasive. Patent examiners are non-lawyers. An examiner’s opinion on the legal question of patent eligibility does not relieve a patent attorney from her obligation to make an independent assessment based on an evaluation of the relevant law.
Unless there is some new case law that is relevant (which was not cited by the Court), then this is legally incorrect. The statute says the opposite that the lawyer can rely on the issuance of the patent to rely on its validity.
1. A method for transferring payment information to a personal financial management program comprising:
invoking a financial assistant operating on a network device upon a determination of a transmission of transaction data to a commercial web server configured to conduct online financial transactions;
intercepting, by the financial assistant on the network device, the transaction data in a first data structure comprising a plurality of components of transaction data, the first data structure compatible with conducting an online transaction with the commercial web server;
copying, by the financial assistant on the network device, each component of the transaction data into a second data structure compatible with the personal financial management program, wherein the second data structure differs from the first data structure;
entering, by the financial assistant on the network device, additional transaction data not included in the transmitted transaction data into the second data structure including at least one of a category and remarks; and
transmitting, by the network device, the copied transaction data and the additional transaction data to the personal financial management program.
BYM — just finished reading your writ / brief.
Wow — a masterpiece indeed. Couldn’t be more on point — repeatedly.
If your appeal isn’t accepted by SCOTUS, I don’t what would be.
Best wishes to you and your clients.
And Congress — where are you while this un-American, un-Constitutional 101-property- stealing is going on?
Saving this for posterity. Beyond parody.
Parody is claiming that you’re a patent attorney. You’re not. You’re an angry shut-in trying to impress and infuriate people by constantly taking anti-patent positions.
Thank you, Pro Say.
As I mention in the Petition, as screwed up as the s101 rejection is it is the gold standard for s101 rejections at the USPTO. Further, the CAFC has grown so irresponsible and bizarre that it no longer has credibility. The “we’re constrained by Alice/Mayo” whining doen’t fly b/c they’ve tortured case law and statutory language to reflect their anti-patent sentiments.
In a petition for rehearing I demanded that the Federal Circuit follow their own law and the APA. That was a waste of time.
As to the Supreme Court, it looks like they’re seriously considering two Alice/Mayo cert petitions already. They’ve asked for input from the DoJ. Why? Because nearly ten years after Bilski it’s apparently finally hit them that the Alice/Mayo test is plain stupid. On the other hand it is my belief that the SCOTUS is looking more for some form of intellectual help that will allow them to blame the CAFC and to be able to walk away saying “the lower courts didn’t do what we said.”
Then again the SCOTUS can do what it does best: ignore the problem it created.
You’re welcome BYM.
It’s great — and impressive indeed — to see someone work so very hard for their clients.
You’re very kind, pro say. I drew heavily from Judge Giles Rich, and had an amazing corpus of nonsense to criticize.
I drew heavily from Judge Giles Rich
ROTFLMAO
Your cognitive dissonance is noted.
DC the Federal Circuit does not actually consider preemption in its analysis — going so far as to hold that evidence of no-preemption is irrelevant to the eligibility analysis
The Constitutional and policy consideration underlying eligibility is to prevent restrictions on the public’s freedom to use basic/fundamental building blocks of knowledge in any context. Those fundamental building blocks include logic and information. Some patentees have attempted to argue that their claims are so narrowly limited to a particular prior art context such that (so the argument goes) “there is no pre-emption problem.” But that misses the entire point and the CAFC has at least several times made this crystal clear: once it’s established that an abstraction is being protected in any prior art context (whether that context is anticipated or obvious), then you have an illegal pre-emption. Period. Do not pass go. Note again that the concern is not about the “pre-emption” that is brought about by a particular ineligible claim. The concern is that if the doors are open to the patenting of logic and information in “this context” or “that context”, the gates will be stormed and “stakeholders” in a myriad different contexts will attempt to claim logic and information in all those contexts, separately. That is the problem and the proper application (sweeping and non-judgmental with regards to context) of 101, per Mayo and Alice, is the solution.
Calculating a value and giving the value a name isn’t “inventing”. It’s math. It doesn’t matter how important the value is, and it doesn’t matter how clever the name is.
“Pre-calculating” a value is also not inventing. Displaying pre-calculated values changes nothing, and that’s true regardless of whether those values are displayed over a bird’s eye picture of some house, or my cousin’s picture of her kitty cats.
Maybe Bud will be along to tell everyone why calling a number “real estate information” changes everything about calculating a number. Do numbers become more difficult to multiply or add when they are “associated” with a piece of property? That’s not how my calculator works. Maybe Bud is some kind of super computer expert and he can explain what happens to data when the computer discovers that the data “relates to” real estate data. Or to bingo games. This is very serious highly technical stuff, after all and I’m sure there’s a very serious and highly technical answer forthcoming. Sure there is.
And you gotta love this from down below:
appraisals/assessments are not AVMs and are not fungible.
In fact, those two numbers are perfectly “fungible” in the only context that matters: pre-calculating them and displaying them over a map. And it’s this kind of silly low-level rhetorical game playing that has turned the patent system into a cessp 0 0l where people like Bud thrive. Expunge the source and end the tr 0lling.
Joachim: Twitter, Inc. suspended me, and I am suing Twitter, Inc. for multiple reasons.
ROTFLMAO
Heckuva blog, D. You know what’s missing? More glibertarian white supremacist types drunk on Faux News fumes. Golly, I miss Ned Heller with his super deep insights.
Anon,
Thanks for the heads up about the Smith PTAB decision that you mention on the other blog.
Perhaps this is oversimplified, but there is not a contradiction between saying something is novel and non-obvious and still patent ineligible.
E=MC2 was novel and non-obvious when Albert Einstein announced it, but it was not patent eligible. The novelty and non-obviousness inhered in the abstract idea, but there was no practical application to the real world.
One can similarly conceive of a novel and non-obvious algorithm or formula, but its application (through a computer and other standard tools) is still ineligible. (If I solved the famous traveling-salesman problem in geometry I would be a mathematical genius. But its application, through a computer and Google maps would still be ineligible.)
Wolfgang Pauli: not even wrong.
(You cannot ignore the contextual legal meaning of the terms “novel” and “non-obvious”)
anon has it right in this string of comments.
The reason ineligibility and non-obvious are a contradiction–in this case–is that the ineligibility is based on a judicial exception of abstraction that requires the claims to be notoriously well-known, which they cannot be if they are nonobvious.
The arguments that are somehow trying to say that this is for a class of problems are specious. All of patent law is about particularity. One cannot say that information processing is notorious well known and have it encompass all of information processing that is a subject matter exclusion not an exclusion based on being abstract.
For the reasons that Anon & Night Writer have explained, I argue that SCOTUS along with the CAFC have introduced a fourth judicial exception, which is praxis (well-understood, conventional, routine activity [or element]), and have not bothered to tell anyone.
The new eligibility guidance almost acknowledges the 4th judicial exception. It tells us that abstract ideas are primarily mathematical ideas. (I would have written that the only abstract ideas are purely mathematical.) Then the guidances goes on to discuss judicial decisions that incorrectly call praxis an abstract idea.
Because praxis is almost the opposite of abstract idea, § 101-eligibility doctrine remains hopelessly confused and confusing.
I discuss praxis in my response to the RFC on eligibility.
The section explicitly discussing praxis qua 4th judicial exception starts on page 12, but I have to recommend reading the previous 11 pages.
link to lnkd.in
You give too much credit to the Court in your (continued) attempts to make sense of the Gordian Knot that they have created.
It is my tendency to try to create rationality out of chaos.
It another forum (Dorchester Municipal Court Division of the Trial Court of Massachusetts) I am trying to make sense of 47 U.S. Code § 230 (Protection for private blocking and screening of offensive material), Telecommunications Common Carriage, Recent FCC rulings on SMS & MMS, Massachusetts Common Carriage Law, Massachusetts Libel Law, and the Massachusetts Civil Rights Act.
Twitter, Inc. suspended me, and I am suing Twitter, Inc. for multiple reasons.
We are in the preliminary motion phase. If anyone is interested to take a peak, he can click the URL below.
link to linkedin.com
At one time I was supposed to be an expert in the technologies to which Title 47 applied.
There seems to be a race between Title 47 and Title 35 law to see which area of law can reach maximum entropy first.
Good question. At least at the EPO, the distinction is understood.
Everywhere, one readily distinguishes between what is”novel”and what enjoys patentable novelty. Likewise, one can distinguish (if one is so minded) between what is not obvious and what is patentably not obvious.
I mean, loads of stuff is not obvious without being patentably not obvious. Consider an Agatha Christie novel. It is (one hopes) not “obvious” who is the perp. But that does not mean that Agatha Christie has made a patentable invention.
At the EPO, the obviousness enquiry is confined to that which is or is not obvious within the purview of the useful arts. What is or is nor commercially or artistically obvious is irrelevant. The only thing that counts is what is or is not technologically obvious.
Hence, at the EPO, eligibility can be reduced to the question whether the claimed subject matter exhibits “technical character”. Eligible, for example, would be a claim to: “A digital computer.”
Some say that the EPO approach is “oversimplified”. Not me though. I say it is simple, as simple as possible, but definitely not over-simple.
Yet again, MaxDrei, you attempt to equate Technical Arts and Useful Arts.
It just is not so.
Please stop trying to dissemble on that point.
“E=MC2 was novel and non-obvious when Albert Einstein announced it, but it was not patent eligible.”
But the legal underpinning of this case relies on faulty assertion(s) that the method is “well-know, ordinary…blah”. There was nothing well-known about E=MC2. It’s contradictory to assert that a claim is novel but at the same time well-known. Figure out other grounds for ineligibility, but these two things can’t coexist. The law of non-contradiction applies to the everything, including the law.
It’s contradictory to assert that a claim is novel but at the same time well-known. Figure out other grounds for ineligibility, but these two things can’t coexist. The law of non-contradiction applies to the everything, including the law.
No, it’s not contradictory, because you’re not measuring the same thing. Novelty refers to the entire sum of the claim, or (when it is used as a stand in for “point of novelty”) a particular element that is new. Well-known is directed to a subset of the claim – the part of the claim that is not the ineligible subject matter.
It’s entirely possible for a claim to be novel and yet to have only well-known subject matter under Alice Step Two. In fact, one can point to a categorical time – the time when the ineligible subject matter is the thing which imparts novelty to the claim.
Conventionality is expressly NOT – as you attempt here Random – limited to “subset.”
Conventionality also is not shown with merely using art that shows lack of novelty (or for 103, art that shows obviousness).
You are clearly incorrect in your views here.
It certainly was limited to a subset in Mayo. The admittedly routine and conventional data gathering step in Prometheus claims is the only reason the language is used by courts.
Translation: “The scoreboard is broken.”
Thanks, Malcolm, we already knew that.
The results of special relativity follow from applying the Lorentzian transformations instead of Galilean transformations in describing the parameters of one inertial frame in relation to those parameters in another inertial frame.
Once Mach (and others) began asking what time really means, one could argue the result was mathematically obvious even though Einstein was the first to drive the redefinition of time (and the experimental result that the speed of light in a vacuum is invariant in all inertial frames) to the logical conclusion.
Mathematically obvious probably means something different from obvious in the sense of patent law.
Why should a process for determining the energy equivalent of an object be ineligible?
1. A method for determining the energy equivalent of an object, the method comprising:
determining a mass of the object in kilograms;
multiplying the determined mass by 8.98755179 meters squared per second squared to arrive at a product, the product being the energy equivalent of the object expressed in Joules.
Why don’t we want to promote this sort of discovery? Discoveries are eligible, by the way. Its a process isn’t it? No one knew how to do it or even that mass and energy WERE equivalent prior to the discovery. So, even if Al refused to license the method after patenting for 20 years, the world would have been no worse off than if he hadn’t discovered it.
If your arguments is that someone else may have discovered it 3 weeks later, my response is, well, if it were recognized as patentable, it may have been discovered 3 years earlier.
The formula might not be eligible, but processes based on it are.
This is the thread that comes to mind about what you are saying Les.
link to patentlyo.com
Essentially the argument is that “discovery” in the modern vernacular is not what it was at the time of the drafting of the Constitution.
Over 300 comments so lots of ideas on that topic.
Marty,
Essentially Congress acted on this in the Act of 1952 (you know, in the section that you do not want to understand the terrain, and yet want to merely declare ‘tautology’: 35 USC 100).
As to the many posts there – many of those items put on the table for discussion by yours truly were simply not being treated with inte11ectual honesty and many posts were made in attempt to get those not treating the posts in such a manner TO recognize what the points were and why they were important.
Five years out, my views remain rock solid.
That is literally gibberish.
The argument is that something “discovered” was not new in the world, but something not yet known to people in the world, as opposed to invention, which was something new in the world and so not possible to have been known to people in the world.
“Discovery” in the vernacular is newly known information about something in the world.
My view is that the act of 1952 is silent on both the nature of discovery, and the nature of information in relationship to the four allowable kinds of inventions.
Whatever your view is, you don’t seem able to articulate it in a discoverable way.
Yet again, your lack of understanding does not make my comment to be gibberish. It merely reflects that YOU lack understanding.
This is exactly like your error with 35 USC 100(b).
Bored Lawyer >>But its application, through a computer and Google maps would still be ineligible.)
It weird the way people make these proclamations as if by saying it there is some law that they are using as authority, but they never state the law or justification. They just make proclamations.
BYM, read this, and tell me why it’s unworkable.
link to papers.ssrn.com
FYI, I think you hit the “mental steps” doctrine perfectly on the sweet spot. The human mind should be free of patent coverage. There’s some good CAFC decisions on this
Sadly, the Mental Steps Doctrine is an area of patent law that has seen a recent Zombie Re-animation attempt that falls short of understanding the technical nature of modern computing machines (and lacks understanding of one of my favorite words: anthropomorphication).
I have called for academics*** to set the understanding of this area back on its proper tracks, to no avail.
*** I could do this, but those most in need of this understanding would simply reject what I say because I would be the one saying it.
The technical nature of modern computing machines has jack-all to do with stock quotes, house prices, store coupons, ladies night, online bingo, or virtually anything else that people consume. If the nature of the information is the source of its utility, rather than the nature of mechanistic, non-humanly meaning processing, it should be nowhere near the patent system.
Go ahead and set this (mis?)understanding on some kind of track. How long could it take?
Your inability to understand the patent context of Utility runs rampant.
Sorry Marty, but you continue to want to wage war on a terrain that you just don’t bother to understand.
See Sun Tzu.
“Sadly, the Mental Steps Doctrine is an area of patent law that has seen a recent Zombie Re-animation attempt that falls short of understanding the technical nature . . . ”
True that. You can thank Justice Stevens for that nonsense, which was reanimated decades ago in Flook.
That said, there is a position that a claim should not be able to read on actual mental steps of an actual human, which I agree with. Besides, how does one get the necessary evidence to prove infringement.
I can see that point – but that would ONLY be to a claim – as a whole – that is ENTIRELY something “within the mind.”
And just as you point out (how does one prove infringement), THAT too indicates that such a claim does NOT reach the proper Utility sense of being within the Useful Arts (claims of pure thinking are not in the Useful Arts).
Very Serious Person Bud: how does one get the necessary evidence to prove infringement.
You could ask the person directly “what you were thinking” while they are under oath. Or you record them discussing their thought process. Or you observe them and infer. Just a few of many possibilities.
Determining what a person was thinking is something that judges and jurors do routinely. Most attorneys are aware of this.
Of course, pretending that one was born yesterday is something that certain patent attorneys do routinely. What was Bud thinking when he typed out his comment? Perhaps he wasn’t thinking at all. That would explain a lot.
a claim should not be able to read on actual mental steps of an actual human, which I agree with
Ah, very interesting. So, Bud, what about if there is a prior art physical transformation in the claimed process (e.g., “drinking a glass of milk”), in addition to the “actual mental step”? In that case, the claim “reads on” the mental step in that prior art context. Presumably you have a problem with that also. If not, I’d love to hear your thoughtful, reasoned explanation as to why that kind of claim is somehow “okay” but a process claim reciting a mental step but which doesn’t recite a prior art context is not okay. You can be the very first person on earth to provide that explanation (many have been asked). Good luck.
“I’d love to hear your thoughtful, reasoned explanation as to why that kind of claim is somehow “okay” but a process claim reciting a mental step but which doesn’t recite a prior art context is not okay.”
I’ve already addressed that issue.
Does anyone in real life take anything you ever say seriously?