Patently-O Bits and Bytes by Juvan Bonni

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23 thoughts on “Patently-O Bits and Bytes by Juvan Bonni

  1. 2

    Night Writer>>It is like invalidating a forklift because a human could do something similar.

    Ben >> This analogy only works if the forklift is claimed as “metal; configured to lift objects”. In which case, the rejection sounds much less silly.

    Now see this goes to intellectual dis honesty on the part of Ben. The issue here is 112 enablement. The issue is that with information processing and most modern technologies there are so many solutions to individual problems that functional language is used to express the many solutions. Those skilled in the art know the set of solutions. Ben and I have been through this many times.

    Lemley, the Scotus and other anti-patent groups and people try to push this false narrative that has nothing to do with real science, engineering, or innovation. I have quoted from textbooks used at MIT that expressly state that functional language is used to express known solutions, which may include the new part of the disclosure as well as it is now known.

    Ben keeps pushing this iron age thinking. He knows he is wrong and is doing it as it is one of the talking points of the anti-patent judicial activists. This type of behavior indicates that this is not a real debate, but rather rhetoric being pushed by anti-patent groups.

  2. 1

    Anon, Alice does not support a holding that the claims must recite an improvement to the operation of the computer.

    I think you misread the second portion of Alice. The CAFC case law is not supported by Alice.

    1. 1.1

      You posted on the wrong thread, but no biggie – do you understand the proposition that I provided in my answer (before you seek to dismiss that proposition)?

      IF the Supreme Court in Alice eliminated claims that BOTH sides of a disagreement already acquiesced as to meeting the statutory category of ‘machine,’ THEN what do you think that provides for the lower court?

      This is NOT saying that there is a holding directly on point — but you did not ask for such a holding. This is more an open invitation from the Supreme Court to which the action of the lower court follows the “simian-having-been-firehosed” training. THAT is the type of support from Alice that the CAFC case law is supported by.


          Not at all. I merely clarify the distinction between “support” and direct “holding.”

          You do realize that the lower courts continually (across a full spectrum of legal issues) act outside of direct holdings, right? All of those actions would not reasonably be said to be without support.


            I would ask for what you think is the best support for this holding? Which portion of Alice?


              Your new question mixes things up – you insert “holding” while still talking about support.

              As I just noted, these are two different things.

              While certainly, a holding is a massively powerful form of support. But by no means is holding the only form of support.

              Are you really asking a different question of “Can you tie the holding of Alice to the immediate proposition of the CAFC (holding of the present case, if you like)?”

              Perhaps I could.

              Can you recognize (first) the support as I have used the term and the fact from the Alice case that I have presented?


                I think my assertion has not changed. The holding below has no support from Scotus precedent.

                >To be a patent-eligible improvement to computer functionality, we have required the claims to be directed to an improvement in the functionality of the computer or network platform itself. . . . [I]t is not enough,

                1. Your assertion has not changed.

                  But you are still ignoring the differences as I have presented (and you still confuse ‘holding’ and ‘support’). There is little wonder that you will (again) exclaim ‘runaround,’ as we are right back at the start (without you actually engaging on the point that I presented).

                  When you want to engage and consider that ‘holding’ and ‘support’ are two different things, you know where to find the comment string.

                2. anon, my assertion stands on its own. You can respond to it with whatever you feel can be used to justify the holding of the CAFC, but the assertion stands.


            If the Fed. Cir. was really running amok on sua sponte 101 decisions contrary to both Bilski and Alice Sup. Ct. decisions on claims 112 and otherwise patentable] should not at least one of the many 101 cert attempts since have been more successful?



              It’s beyond clear that the perpetrators are not going to ‘fess up’ just because someone asks them to.


              … and I will also remind you Paul that members (senior members at that) of all three branches of the government have asserted that the Supreme Court created mess is very real.

              It’s more than a bit asinine to try to pretend otherwise.


                Anon, that was not in dispute, and you missed my point, which was in support of your argument that the 101 mess was primarily created by Sup. Ct. decisions, not by inconsistent Fed. Cir. decisions.

                1. Your post was in support of my view…?

                  That certainly was not clear. All I got out of it was to NOT blame the CAFC. My view is that the primary blame goes elsewhere, but the CAFC is certainly NOT blameless.

                  Elsewhere I recently, posted to the effect that the CAFC lacks leadership and moral integrity to push back at the Supremes as they should.

                  Michel realized too late.
                  Radar mussed up his chance (and ended up with mere “additional views”).
                  Prost has NO leadership ability.


              Paul, what I think is that the Scotus gave the CAFC carte blanch to get those patents under control. Right now the Scotus is going to let things fester to see how they work out. This is the same thing they did last time where they waited what 15 years before overturning 101 jurisprudence of the CAFC.

              So just because the Scotus hasn’t corrected the CAFC yet, doesn’t mean they won’t. And the fact that so many of these 101 of the CAFC have no foundation from Scotus cases just means that they are unstable. Where, again, is the justification for saying that an improvement to computer has to be directed to a hardware functionality of the computer? That is simply not in the Scotus jurisprudence in Alice step 2.


                Some form of that did show up in the CBM statute, but that is not relevant to cases the CAFC has trotted out their private little thinking on this matter.

                And–again–the key point is that information processing is a physical process. The CAFC case law treats information processing as if it is not a physical process.


                what I think is that the Scotus gave the CAFC carte blanch to get those patents under control.

                … this seems, well, exactly what I have been saying vis a vis ‘support.’


                Regarding: “And the fact that so many of these 101 of the CAFC have no foundation from Scotus cases just means that they are unstable.”…

                … there are two factors that need adjustment here.

                There is indeed ‘instability.’ But that instability is NOT from a ‘lack of foundation from SCOTUS cases.’ ‘Foundation,’ like ‘support’ simply need not be the ‘higher level’ of a direct tie to a holding. Rather, the ‘foundation’ TO the SCOTUS cases may merely be what SCOTUS has provided.

                The real instability traces back to what SCOTUS itself has done. The unsteady foundation then is NOT the foundation of the CAFC, but is instead the foundation of the first driver, and that first driver is SCOTUS.

                The second aspect that needs correction is that — like SCOTUS — the results of the SCOTUS-re-written-and-ever-evolving-Common-Law approach has rendered a host of directly conflicting case law (a veritable Gordian Knot).

                One can readily see case law Common Law results that are in direct conflict from case to case. This conflict can be seen at every level of the judicial branch, has been noted many times by the judges of the CAFC, by Director Iancu, and even by Senators in their hearings about the mess created by the Supreme Court.

                The instability of this “common law” approach even carries with it a long historical reflection in the pre-1952 allotment by a Congress to the judicial branch for “invention.” This is a history that resulted in the carving up of the pre-1952 paragraph, and the creation of the concept of ‘obviousness’ instead of the Court’s Common Law approach to “invention” (due in part to the realization that the Court was NOT using that Common Law power to create an ever more clear understanding of ‘invention,’ but instead had turned into the self-described “the only valid patent is one that has not yet appeared before us.”

                The historical parallels are uncanny.

                Sadly, those that today fall into my description of “anti-patent” mirror that same wayward path of pre-1952 “Gist of the Invention” (with imbued “Flash of Genius” and “patents are bad” tones).

                1. Meh, I’ve read what you offered and understand it fully.

                  That’s why I have provided counter points to your posts.

                  It is you that needs to stop and contemplate those counters (without wanting to stick to your original posts so much). You are the one ‘not reading and understanding.’

                  Great example is that TM discussion over at IPWatchdog. When you finally took the time to read my position fully (and let go of defending your own conclusory statements), you did move (most likely because you did stop and think — even possibly learning something).

                2. Night Writer,

                  If you have any actual point to make — some specific aspect of my response to which you feel that point actually reflects a lack of ‘reading’ or understanding, you would be FAR better off making that specific post rather than your rather conclusory and far overbroad accusation. You should be aware that this path of yours only comes across as you merely not liking the fact that I may be disagreeing with a stand that you may have on an issue. Not only is this type of overbroad statement not helpful to advancing a conversation, it hurts YOUR credibility.

                  I suggest that you refrain from such a path.

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