Whether the Court should overrule its precedents recognizing the “abstract idea” exception to patent eligibility under the Patent Act of 1952.

Trading Technologies International, Inc. v. IBG LLC, SCT Docket No. 19-353 (Supreme Court 2019)

Before writing this post, I note that while in practice (2003-2007) I represented Trading Technologies and filed a number of infringement lawsuits asserting infringement of patents related to those at issue here. Although I no longer represent Trading Technologies, I continue to be bound by duties owed to a former client.  – Dennis Crouch 

The patented inventions at issue are used by professional stock-market traders buying and selling in a dynamic electronic marketplace.  The patents generally relate to user interfaces (UIs) designed to improve accuracy and speed of offers and bids while also dynamically displaying market-depth (pending offers/bids at higher/lower prices).  U.S. Patents 7,904,374, 7,212,999, and 7,533,056.  These inventions do not make the computer itself run faster or improve the computer’s internal processing or signalling. Rather, the improvement is seated in user interaction.  In its decision, the Federal Circuit characterized the improvement as “focused on improving the trader, not the functioning of the computer.”  And, according to the court, such improvements were effectively non-technological abstract ideas.  “We conclude that the claims are directed to the abstract idea of graphing bids and offers to assist a trader to make an order.”

In its petition for writ of certiorari, Trading Technologies challenges the Federal Circuit’s conclusion that an inventive concept cannot lie in the improved user-functionality and also directly challenges the Supreme Court’s Alice Corp. decision and its progeny. (Note that on the first-point, the Federal Circuit has an inconsistent set of opinions).

Question presented:

In Alice Corp. Pty. Ltd. v. CLS Bank International, 573 U.S. 208 (2014), the Court declined once again to define the scope of the “abstract idea” exception to patent eligibility created by this Court. It did, however, assume that claims that “purport to improve the functioning of the computer itself” would be patent eligible. Here, a panel of the Federal Circuit held, in conflict with other panel decisions, that computer-implemented inventions providing useful functionality to users, but without improving the basic functions of the computer itself in a manner akin to improved hardware, are directed to abstract ideas and therefore patent ineligible.

Accordingly, the questions presented are:

1. Whether computer-implemented inventions that provide useful user functionality but do not improve the basic functions of the computer itself are categorically ineligible for patent protection.

2. Whether the Court should overrule its precedents recognizing the “abstract idea” exception to patent eligibility under the Patent Act of 1952.

Trading Technologies Petition.  On question two – it is important to note that the Supreme Court has identified eligibility as a question of statutory interpretation — but has not directly confronted whether the Patent Act of 1952 rejected or modified the abstract idea test.

71 thoughts on “Whether the Court should overrule its precedents recognizing the “abstract idea” exception to patent eligibility under the Patent Act of 1952.

  1. 8

    How is an improvement in the way a computer displays/communicates information not an improvement in the computer itself?

    1. 8.1

      The better question Les is shown in the direct words of 35 USC 101 itself (emphasis added):

      Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

      That better question is HOW can it be that for a particular type of innovation that — without question — effects an improvement in a statutory category, is there even a question of eligibility raised?

      In several places on the blogosphere Paul Cole has a recurring write-up on how exceptions are not overlapping with the statutory categories.

      A critical problem of course is that the very word itself — “exceptions” — is dependent on overlap.

  2. 7

    >2. Whether the Court should overrule its precedents recognizing the “abstract idea” exception to patent eligibility under the Patent Act of 1952.

    I’ve always wondered where the stand-alone ‘abstract idea exception’ comes from exactly.

    That is, it’s easy to see that an abstract idea wouldn’t be a “new and useful process, machine, manufacture, or composition of matter.” But if it’s inferred from the statute text, we don’t really need a definition/test for “abstract.” We just need tests/definitions for “process” and “manufacture.”

    Ditto, if it’s based on the Constitution. We just need a definition of “Discoveries.”

    If it’s coming from some other source (federal common law?)… then can that source overrule the express statutory text?

    1. 7.1

      It is in the “whoever invents or discovers” language. You cant invent an abstract idea. Thats why the first step in the 101 analysis is removing conventional stuff and identifying the “inventive concept”, i.e. figuring out “did someone invent something and what is it.”

      Note that in 101 the “invention” is not the “claimed invention” as it is in 102 and 103 (and as people here always want to make it out to be). Thats why you look at what the claims are ‘directed to’ — you are trying to figure out what was invented. The other way to do this is to get stricter on 112– that the claims must distinctly point out the invention, and start requiring two part format claims (where you dont claim conventional components that its clear you didnt invent).

    2. 7.2

      fake reply… Put differently, what is the textualist argument for any of the judicial exceptions?

      1. 7.2.1

        you might want to read some of Paul Cole’s and Sherry Knowles’ writings (as well as my cogent counter points to Paul Cole’s writings).

  3. 6

    At a minimum, an “abstraction” is a non-physical thing

    Intangibility is what abstraction means in the vernacular, but it has different meanings in the different contexts of patent law. Abstract inventions are different from abstract claims.

    At a minimum, an “abstraction” requires a human mind to host it . No human mind, no abstraction.

    The question presented again is sniffing right up to the clear truth here.

    1. Whether computer-implemented inventions that provide useful user functionality but do not improve the basic functions of the computer…

    If the basic function of a computer is to compute, they are implying that “useful user functionality” is something different than computing. Of course it is. A human being’s lived experience is the absolute height of abstraction.

    If a process invention’s sole result is a species of information, and that information’s utility is achieved by direct human consumption of the information, the invention itself is a pure abstraction and should be ineligible. If a process invention’s sole result is a species of information, and that information’s utility is achieved by a non-human actor making use of the information, the invention is a machine component and should be eligible, subject to 102/103/112.

    Eligibility should live in exactly the same procedural neighborhood as claim construction, because they are highly similar inquiries.

    1. 6.1

      but it has different meanings in the different contexts of patent law

      Marty, you would have a lot more credibility if you evidenced understanding of the context of patent law.

      1. 6.1.1

        yea anon try for once. what’s the difference between “useful user functionality” and computing?

        Ya got anything on this that is even a bit insightful about the actual words in the actual petition to the actual court, or just more meaningless quasi-quips about this or that that are not understandable to anyone here?

        1. 6.1.1.1

          yea anon try for once. what’s the difference between “useful user functionality” and computing?

          First, IIRC, this is the very first time you have advanced this question to me.

          Second, the question is asinine. Maybe figure out what you really want to ask and ask that question.

          (and leave out the Malcolm-like Accuse Others as you ask a nonunderstanble question in trying to make some unfathomable point)

          1. 6.1.1.1.1

            The question is asinine? it ain’t my question. Its the question presented to the Supreme Court.

            Once again, left wondering if you have lost the power of reading….

            1. 6.1.1.1.1.1

              Your paraphrase here is NOT the same as above.

              It is not a “my reading” issue.

    2. 6.2

      If a process invention’s sole result is a species of information, and that information’s utility is achieved by direct human consumption of the information, the invention itself is a pure abstraction and should be ineligible.

      Why? I think that this is a fine exposition of the line that separates the eligible from the ineligible in the actual Alice world in which we live. I am less clear as to why this should be the line.

      Why should a benevolent legislator prefer to draw the line here? What public policy end is best served by this line of demarcation?

      1. 6.2.1

        Greg,

        Why should a benevolent legislator prefer to draw the line there? What public policy end is best served by this line of demarcation?

        Any number of reasons. First, when line drawing, it’s very helpful to draw lines that show reasonable contrast- lines that numbers of people will generally discern or argue about in repeatable ways.

        More importantly, it gets to the heart of why patents and abstractions have a fraught relationship.

        A great deal of activity around inventing and the making and using of inventions occurs within human minds. Patent systems have always sought to explicitly separate that activity from the artifacts that patents are intended to protect. We don’t want to patent ideas or results- we want to patent the instrumentality of those things.

        We now live in an age- the Information Age- where non-human “ideas” and “results” are facts of everyday life. We can’t (yet) concern ourselves with the religious or intellectual freedom of machines, because those things are abstractions, and again: no human mind, no abstraction. Conversely, patents that restrict thinking about things, or responding to information, are anathema to free people, and cannot be tolerated.

        Another value is that of dimensions of infringement. When we use a patented machine tool, each act of infringement carries the same marginal value of an improved widget, or one made with less effort or material, independent of the operator. When we use a bond-trading tool to make decisions about bonds, the value and utility of that tool is unique (utterly abstract and unknowable) to each bond-trader. Dishing justice to always unique situations is the worst possible way to dish it.

        Finally, it just makes perfect intuitive sense once you understand it. Machine components are used by machines to meet their machine needs. Information is used by people to meet their human needs. Patents belong to one of those categories.

        1. 6.2.1.1

          Machine components are used by machines to meet their machine needs. Information is used by people to meet their human needs. Patents belong to one of those categories.

          Thanks, Martin. I am not sure that this really answers my question. More like rephrases it. Why do patents belong to only one of those categories.

          I certainly agree that “when line drawing, it’s very helpful to draw lines that… people will generally discern or argue about in repeatable ways.” It seems to me that one could draw many lines that would answer to that criterion.

          I am thinking very particularly of diagnostic technologies (as is natural in my line). The end product of a diagnostic technology is—at its most basic—“mere” information. Does the patient have the disease or not? Still and all, a lot of people like to have this information, and the provision of a clear answer can make their lives better (“I now know that I do not carry the heritable illness that killed my father, so I feel safer bring children into this world,” or “well, now that I know that I only have 3 more pain-free months of life left, maybe I should take that early retirement package and do that round-the-world voyage I have always wanted,” etc).

          It requires extensive capital investment to discover these diagnostic technologies. It is also possible to make money from such a discovery even without disclosing its scientific basis. Patents are supposed to incentivize both R&D investment and disclosure/dissemination of discoveries, so it would seem that there are good reasons to make these sorts of discoveries fit matter for patenting. And yet you say that we should not make such discoveries patentable, because the end product of the technology is information for human interest. Why? What is the untoward outcome that will supposedly result from granting patents on such technologies?

      2. 6.2.2

        Further, even assuming arguendo that you wanted to draw this line, isn’t the line already being blurred (and will only continue to be further blurred) as technology advances? As image recognition and AI continue to evolve, will there really be a clear line between information for human consumption and information for machine consumption?

        1. 6.2.2.1

          Yes, the line will remain clear. If the information is simultaneously useful to persons or machines, either the human consumption will be non-infringing, or the public gets the Vegas tie.

          I have not seen a cleaner line proposed.

          1. 6.2.2.1.1

            the public gets the Vegas tie.

            Inventors are a part of that “public,” and your view shows an innate anti-patent bias that you seem glibly unaware of.

          2. 6.2.2.1.2

            If by “the public gets the Vegas tie”, you are suggesting that “[i]f the information is simultaneously useful to persons or machines,” a claim should be found ineligible, then it seems like your test is at risk of becoming worthless. Isn’t any information useful to machines (at the moment at least) useful to “persons”?

            1. 6.2.2.1.2.1

              J.Doerre, the law deals with proximity in all kinds of contexts.

              An MPEG compression is not going to be directly consumed by human beings. A lens grinding map with 22.3 million stations is not going to be directly consumed by human beings. The information that maternal plasma contains fetal DNA is going to be directly consumed by a person. A prompt to buy a bond is an item of information that will be directly consumed by a person, but if an invention somehow gained utility from that information for non-human direct use, it could possibly find eligibility.

              Just fire-away with some real cases. I doubt it will be difficult to identify the information consumer in a repeatable way.

              A change to Section 100(b) could implement this test.

              The term “process” means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material. The term “process” excludes any process whose primary purpose is to produce information intended for consumption by human beings, excepting processes that improve information processing without regard to the particular content or meaning of the processed information.

              1. 6.2.2.1.2.1.1

                You continue to want changes without recognizing the terrain upon which you want changes for.

                ALL utility in its final measure is a utility for human consumption.

                Show me an example of utility that is otherwise, and I will show you an example of a NON-eligible item.

                The easiest example of this is one I have provided to you in the past: the traffic light.

                A mechanism and system that can change colors in a coordinated manner is NOTHING without the end item of human consumption of those items.

                There would be NO utility in the patent sense with your inane view of machine versus human consumption.

    3. 6.3

      Well, in this case, the invention results the activation of an appropriate set of picture elements. So the end consumer is display electronics and the claims are NOT Abstract.

      1. 6.3.1

        Les, the utility of the invention does not arise from the monitor’s use of the processed information.

        1. 6.3.1.1

          Marty,

          The utility of a traffic light does not arise because mechanisms “change color.”

          You continue to simply not understand what utility means in the patent law context.

          1. 6.3.1.1.1

            A traffic light is not an item of information. A process for using a traffic light would likely be found ineligible, even today.

            1. 6.3.1.1.1.1

              Is a process “an item of information?”

              Your strawman is showing.

              Marty, you remain untethered to principles of patent law.

        2. 6.3.1.2

          Yes it does. But why would that matter?

          The utility of a plow does not arise from the plows ability to sit in a barn. It arises from a humans ability to loosen soil using the plow and plant seeds in the plowed field. That doesn’t make the plow an abstract idea.

          1. 6.3.1.2.1

            A plow is not a process. The process of plowing does not result only in an item of information.

            1. 6.3.1.2.1.1

              as noted above, a process is not an item of information.

              Further, as I have attempted to teach you, ALL utility in the patent sense at the end of the day IS tied to human consumption.

              You have tried to introduce an untethered “proximity” type of feature while at the same time abuse the differences in proximity that the statutory categories ALREADY provide.

              That you do this out of your own personal animus is well-known.

              THAT is not a feature Marty.
              THAT is a bug.

  4. 5

    At a minimum, an “abstraction” is a non-physical thing.

    The issue for the patent system is whether the patent claim protects an abstraction, either “on its face” or indirectly (e.g., in a prior art context).

    If the answer to that inquiry is “yes”, then the claim is ineligible. There are multiple ways to approach/frame the analysis but any approach that bars the use of basic reasoning and/or bars an effort to determine the difference between the claim and the prior art is de@d in the water and nonsensical. And everybody pretending otherwise is full of sh—t or just lacks the intelligence to understand the issue.

    1. 5.1

      Adding: if you want the judiciary to create ad hoc exceptions so your favorite abstraction can still be protected, that’s fine. Just be up front about it and recognize the exception as such. Don’t pretend it was always the intent of the 1952 Congress or (LOL) the Framers to protect your favorite bllcrp. And don’t whine about the “separation on powers” out of the other side of your mealy mouth when the same judiciary cuts back at you in some other respect.

      1. 5.1.1

        if you want the judiciary to create ad hoc exceptions

        This too is fallacious spin from you, as I have provided a simple and direct English explication of both the judicial doctrine of printed matter and the drawing back of that judicial doctrine in the recognized exceptions as merited with the presence of “functionally related.”

        You want to spin the functionally related matter as some addition when — IN FACT — such is not an addition, but merely a refinement of what that judicial branch has carved out.

        It would be breathtakingly amazing if you were to ever treat this FACT in an inte11ectually honest manner instead of trying to spin it to be the opposite of what it is.

    2. 5.2

      Your “or indirectly (e.g., in a prior art context)” is untethered to actual law and stands in direct conflict with the actual words of 35 USC 101:

      or any new and useful improvement thereof,

      You seem unable (or unwilling) to make the proper differentiation and use of prior art with your odd phrasing of “context.”

      You should probably sharpen your understanding of how prior art is to be applied under the patent laws as written by Congress. One item that may help you is to understand the patent doctrine of inherency.

      Of course, these and many other helpful suggestions have been given to you nigh countless times over the years, but you would rather stick your fingers in your ears, clench tight your eyes and keep on chanting that mantra of yours.

    3. 5.3

      MM: “The issue for the patent system is whether the patent claim protects an abstraction, either ‘on its face’ or indirectly (e.g., in a prior art context).”

      How would you define “abstraction”?

      Claims protect inventions, and the Supreme Court has made clear that “[t]he primary meaning of the word ‘invention’ in the Patent Act unquestionably refers to the inventor’s conception rather than to a physical embodiment of that idea.” Pfaff v. Wells Elecs., Inc., 525 U.S. 55, 60 (1998). This is neither a new development nor an isolated case, as the Court made clear a century earlier that “[i]n every case the idea conceived is the invention.” Gill v. United States, 160 U.S. 426, 434 (1896)

      Because every invention is itself a conceived idea which can be characterized as an abstraction at some level, every claim can arguably be characterized as “protect[ing] an abstraction.”

      This may be why some have suggested that “the phrase ‘abstract ideas’ is a definitional morass.” Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1350 (Fed. Cir. 2018) (Plager, J., concurring-in-part and dissenting-in-part). In this regard, the Supreme Court in Alice declined to “labor to delimit the precise contours of the ‘abstract ideas’ category,” Alice Corp. v. CLS Bank Int’l, 134 S.Ct. 2347, 2357 (2014). While this choice was eminently reasonable, it has left many uncertain as to when to apply the abstract ideas eligibility exception.

      1. 5.3.1

        What idea is NOT an abstract idea?

        Is there even such a thing?

      2. 5.3.2

        True, “[t]he primary meaning of the word ‘invention’ in the Patent Act unquestionably refers to the inventor’s conception rather than to a physical embodiment of that idea.” But it also requires that a conception be more than a statement of a desired result and to include a sufficient enablement to comply with 112, including sufficient support for broad generic claims.

        1. 5.3.2.1

          Exactly. This is why the debate about “abstract ideas” would be much more tractable and intelligible if it were put back in the §112 framework in which it rightly belongs, rather than the §101 framework into which the SCotUS has imprudently shoehorned it.

        2. 5.3.2.2

          As Greg notes Paul – and to which I will add the following:

          35 USC 101 has but two (very low bar) requirements:

          1) Can the invention but put into at least one of the statutory classes, and

          2) Is the utility of the invention that of the Useful Arts.

          That
          Is
          It

          (for 101)

          1. 5.3.2.2.1

            It also requires that someone “invents or discovers something,” which is literally the first element of the statute, and the one at issue here.

        3. 5.3.2.3

          Paul,

          Great point! Do you think § 112 accomplishes this, or is there still a need to use a judicial exception to § 101 to police overbroad claims?

          Supreme Court jurisprudence has certainly included finding claims ineligible based on claiming at a level of abstraction that results in overbroad claiming disproportionate to the scope of disclosure and risks pre-empting future use of the building blocks of human ingenuity. Indeed, many commentators have previously noted and emphasized the role of overbreadth in the Court’s eligibility jurisprudence . See, e.g., Lemley, Risch, Sichelman, & Wagner, Life After Bilski, 63 Stan. L. Rev. 1315 (2011). An emphasis on overbreadth can be seen in the earliest Supreme Court cases which were subsequently characterized as eligibility decisions.

          For example, in O’Reilly v. Morse, 56 U.S. 62 (1853) the Supreme Court indicated that the patentee “claims an exclusive right to use a manner and process which he has not described and indeed had not invented, and therefore could not describe when he obtained his patent.” Morse, 56 U.S. at 113. As noted by the majority in Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1343 (Fed. Cir. 2018), the Supreme Court in Morse made clear that “the claim [was] too broad, and not warranted by law.” Morse, 56 U.S. at 113.

          All of this could be characterized as in accord with the foundational quid pro quo theory of patents, where “the patent system represents a carefully crafted bargain that encourages both the creation and the public disclosure of new and useful advances in technology, in return for an exclusive monopoly for a limited period of time.” Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 63 (citing Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 151 (1989)). Indeed, eligibility jurisprudence can perhaps be understood as using 35 U.S.C. §101 as a vehicle to continue to incorporate the foundational concern that applicants provide sufficient quid pro quo for a patent.

          In this regard, eligibility decisions in which claims were found ineligible based on claiming at a level of abstraction that results in overbroad claiming disproportionate to the scope of disclosure can be characterized as finding insufficient quid to support the quo of a patent claim. In contrast, eligibility decisions based on a bright-line prohibition for specific subject matter, such as laws of nature and mathematical formula, can be characterized as finding a patent claim to be directed to subject matter which cannot be the quid to support the quo of a patent.

          The latter situation remains a problem, and it perhaps makes sense to continue to maintain an implicit exception to § 101 to address this situation.

          With respect to the former situation, however, 35 U.S.C. § 112 seems to have been designed to address it, and jurisprudence has indeed evolved to address this issue under § 112.

          For example, in Lizardtech, Inc. v. Earth Resource Mapping, 424 F.3d 1336, 1344 (Fed. Cir. 2005), the Federal Circuit emphasized that “section 112 of the Patent Act requires a patent specification … to contain ‘a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art . . . to make and use the same.’” Lizardtech, 424 F.3d at 1344. The court specifically noted that “[t]hat obligation… forms an essential part of the quid pro quo of the patent bargain,” Id., and indicated that “[t]he trouble with allowing claim 21 … is that there is no support for such a broad claim in the specification.” Lizardtech, 424 F.3d at 1344 (citing Morse, 56 U.S. at 112-113).

          Notably, the court in Lizardtech cited to Morse in its decision, characterizing the Supreme Court in Morse as “denying a claim for use of ‘electro-magnetism, however developed for marking or printing intelligible characters . . . at any distances’ because others ‘may discover a mode of writing or printing at a distance . . . without using any part of the process or combination set forth in the plaintiff’s specification.’” Lizardtech, 424 F.3d at 1344 (citing Morse, 56 U.S. at 112-113).

          The citation to Morse makes a lot of sense, as the Court in Morse was focused on many of the same issues that have since come to be associated with 35 U.S.C. § 112. The Court in Morse was in fact very explicit in articulating its reasoning, noting that “[t]he act of Congress … requires that the invention shall be so described that a person skilled in the science to which it appertains … shall be able to construct the improvement from the description given by the inventor,” and indicating that the “[t]he words of the acts of Congress … show that no patent can lawfully issue upon such a claim … [f]or he claims what he has not described in the manner required by law.” Morse, 56 U.S. at 120.

          When Morse was decided, there was no 35 U.S.C. § 112, and there was less emphasis on creating clear delineations between various rationales for finding a claim improper. To at least some extent, however, the enactment of 35 U.S.C. § 112 and development of jurisprudence under that section serves to address and police many of the same overbreadth issues that the Court in Morse was concerned about. See, e.g., Lizardtech, 424 F.3d 1336; ICU v. Alaris Medical, 558 F.3d 1368 (Fed. Cir. 2009).

          1. 5.3.2.3.1

            I’m reminded of the January 2019 guidance for examining computer-implemented functional claims. 112 will solve the problem! Nine months later the office is even happier to issue “processor configured to [desired result]” claims.

            LizardTech is 14 years old. If LizardTech was the remedy, why don’t we see more we see more defenses against “processor configured to [desired result]” claims based on LizardTech?

            1. 5.3.2.3.1.1

              LizardTech is 14 years old. If LizardTech was the remedy, why don’t we see more we see more defenses against “processor configured to [desired result]” claims based on LizardTech?

              That is the genuinely mysterious part to me? The proximate answer to your question is “people make Alice challenges instead of Lizard Tech challenges because the Supreme Court has expressly ordered the CAFC to decide these cases on §101 grounds instead of §112.” That does not really answer the question, however, so much as just moves the question off one degree.

              Why did the Supreme Court tell the CAFC to do that? The proximate answer to that question is that the Mayo Clinic predicated their invalidity defense on §101 grounds rather than §112 grounds, so that is how the case presented to the SCotUS. Once again, this does not really answer the question, so much as move it one degree further off?

              Why did the Mayo Clinic present this as a §101 question based on Flook and Bilski rather than as a §112 question based on Lizard Tech? Honestly, I do not know. It is strange to me. Clearly, Mayo won, so I cannot say that they were wrong to present their case this way. Still and all, they would have been no worse off had they predicated their defense on Lizard Tech, and the patent law field as a whole would be a deal better off had they done so.

              1. 5.3.2.3.1.1.1

                That is the genuinely mysterious part to me?… Once again, this does not really answer the question, so much as move it one degree further off?

                The other genuinely mysterious part is why I put question marks at the end of sentences that were clearly intended as statements. Ah well, you know what I meant. Mea culpa.

              2. 5.3.2.3.1.1.2

                “they would have been no worse off had they predicated their defense on Lizard Tech”

                Perhaps their outcome would have been the same, but I doubt the same would have been true for CLS Bank. At least for software, LizardTech is the exception rather than the rule.

              3. 5.3.2.3.1.1.3

                “That is the genuinely mysterious part to me? The proximate answer to your question is “people make Alice challenges instead of Lizard Tech challenges because the Supreme Court has expressly ordered the CAFC to decide these cases on §101 grounds instead of §112.””

                Not that I have the answer*, but this avoids the nine intervening year when people seemed to be near peak concern about bad software patents.

                *Though I suspect the answer is the ligitators of the period all recognized that the court so hopelessly biased in favor of software that it found “circuit+[function]” sufficiently definite structure was much more likely than not to ignore LizardTech and to presume software results described is software sufficiently supported.

                1. recognized that the court so hopelessly biased in favor of software that

                  Ben, you divulge more bias than you are probably aware of with a statement like that.

              4. 5.3.2.3.1.1.4

                It strikes me that although Mayo may have dealt with claiming at a level of abstraction that results in overbroad claiming disproportionate to the scope of disclosure (i.e. insufficient quid to support the quo of a patent claim), Mayo also implicated the issue of a bright-line prohibition for laws of nature, i.e. the situation where a patent claim is alleged to be directed to subject matter which cannot be the quid to support the quo of a patent.

                Perhaps Mayo could have been disposed of entirely under § 112, but it does seem like the latter issue would remain a problem, and it perhaps made sense to emphasize the implicit exception to § 101 designed to address this situation.

                In terms of why § 101 was a preferred vehicle, I certainly can’t speak to the litigating strategy, but I would note that the sufficiency of the written description is a question of fact, while patent eligibility is a question of law.

  5. 4

    Kudos to Dennis for finally admitting the conflict that has caused this blog to kinda s-ck for quite a while.

    You could have just asked someone else to educate your readers, Dennis. Or would that still be a conflict?

    In any event, such concerns are … quaint, in 2019, to say the least. This country is a rotten sh-th0le right now. Thanks, Missouri, for leading the way.

    1. 4.1

      That you don’t recognize your own blight is soooo Trump of you, Malcolm.

    2. 4.2

      It is incorrect to suggest that Crouch has not previously noted his relationship with Trading Technologies.

      link to patentlyo.com

      1. 4.2.1

        Malcolm’s Post was not meant to be constrained to just TT, but was meant to implicate the entire topic.

      2. 4.2.2

        You’re right. Dennis admitted it before. But I didn’t appreciate at the time that this “conflict” would preclude him (or anybody) from acknowledging simple facts and logic (or dissociating himself from falsehoods and nonsense).

        Quite a profession, isn’t it?

        1. 4.2.2.1

          Also: ask for a flippin waiver, at least, if it’s really a concern.

        2. 4.2.2.2

          preclude him (or anybody) from acknowledging simple facts and logic (or dissociating himself from falsehoods and nonsense).

          Your Accuse Others meme is noted.

    3. 4.3

      MM your bile-to-content ratio has been slipping. DC generously provides you with a platform, which you clearly enjoy. I’ve never seen him say anything sharp. Show a little grace wouldya?

      1. 4.3.1

        …slipping?

        You obviously have a filter on and don’t recognize the consistency of Malcolm’s bile.

        Once upon a time. The blog system here was run under a DYSQUS system that co-located all of a poster’s comments.

        When reference was made to that feature (and one could easily see the amount of mindless bile from Malcolm all in one place), instead of acting to put his emotions under some semblance of control, Malcolm instead opted to go in and turn on a Maximum privacy setting.

        Further, as was objectively shown during another “let’s have a nice ecosystem” spell, Malcolm has been a consistent blight for more than 14 and a half years now.

        Do you really think that he is going to listen to you Marty?

        Just yesterday he added to his prodigious level of expunged posts (he has more posts expunged for being inappropriate than all others combined).

        Whatever the remedy is, it is NOT asking nicely.

        1. 4.3.1.1

          I think he goes off his medication from time to time — particularly on Fridays and near the end of the month. A very unhappy fellow.

  6. 3

    Re: “..not directly confronted whether the Patent Act of 1952 rejected or modified the abstract idea test.”
    ? Did you mean the literal language of 101? Surely that must have come up in the several 101 decisions of the Sup. Ct. since 1952 which have reiterated their traditional case law list of unpatentable subject matters.

  7. 2

    Very silly questions, asked by very silly people who are overpaying their very silly attorneys.

    My goodness there might actually be a good very question lurking in this case. It these aren’t it.

    1. 2.1

      Progress in spell-check technology plainly not being promoted by anything these days (not that patents ever helped).

      But, sure, let’s let computers pilot three ton machines on a busy highway. What could go wrong?

      1. 2.1.1

        “What could go wrong?”

        The same things that go wrong these days, but less so.

        1. 2.1.1.1

          Can somebody look up the number of deaths annually from both automobiles and guns?

          1. 2.1.1.1.1

            “For 2016 specifically, National Highway Traffic Safety Administration (NHTSA) data shows 37,461 people were killed in 34,436 motor vehicle crashes, an average of 102 per day”

            “In 2013, there were 73,505 nonfatal firearm injuries (23.2 injuries per 100,000 persons),[6][7] and 33,636 deaths due to “injury by firearms” (10.6 deaths per 100,000 persons).[8] These deaths included 21,175 suicides,[8] 11,208 homicides,[9] 505 deaths due to accidental or negligent discharge of a firearm, and 281 deaths due to firearms use with “undetermined intent”.[8] In 2017, gun deaths reached their highest level since 1968 with 39,773 deaths by firearm, of which 23,854 were by suicide and 14,542 were homicides.[10] ”

            There are some nums.

            1. 2.1.1.1.1.1

              So based on these numbers (you don’t give an actual year to year) the death comparison is 39 K guns versus 37 K cars.

              Of that 39 K though, approx 24 K were from people choosing to exit life, leaving about 15 K in comparison — and more than double the risk to others/inadvertent death from autos…?

              Funny that autos don’t even carry a Constitutional right aspect and you have Malcolm fixated on “anti-auto control” but certainly applauding any sense of gun control.

  8. 1

    Um, o.k.

    This seems… unlikely to succeed.

    1. 1.1

      Or, rephrased in an idiom suitable to today’s holiday…

      Argh, this rickety tub seems sure to go down to Davy Jones’ locker.

    2. 1.2

      “1. Whether computer-implemented inventions that provide useful user functionality but do not improve the basic functions of the computer itself are categorically ineligible for patent protection.”

      Is this aggressive framing or just a badly posed question? They are prompting a trivial answer: “No, because they are eligible if they include some other element that adds significantly more”.

      1. 1.2.1

        Bah. Didn’t mean for this to be a reply post.

      2. 1.2.2

        I read it as aggressive framing. At the point where you are asking the Court to reverse a set of precedents that it announced unanimously just a few years ago, there is no sense in being timid in the way that you frame the question.

    3. 1.3

      My reaction was, might as well ask for a pink pony while you are at it.

      1. 1.3.1

        The pink pony has already been requested – it is in the proposed Senate legislation previously noted.

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