by Dennis Crouch
In re Rudy (Fed. Cir. 2020)
Patent attorney Christopher Rudy has been pursuing his fishing hook and fishing method patent application since 1989. The current set of claims have been deemed ineligible under 35 U.S.C. 101. In particular, the court found the claims directed to the “abstract idea of selecting a fishing hook based on observed water conditions.”
The claim at issue has three basic steps:
- Observe the water and determine whether it is clear, stained, or muddy;
- Measure light transmittance in the water at the depth where the hook will be placed; and
- Use above observation and measurement and the lookup table below to choose a fishing hook color:
In the appeal, the Federal Circuit agreed with the PTO that the hook color selection is a “mental process” that relies upon generalized actions of “collecting” and “analyzing” information.
[The claim] requires nothing more than collecting information (water clarity and light transmittance) and analyzing that information (by applying the chart included in the claim), which collectively amount to the abstract idea of selecting a fishing hook based on the observed water conditions.
Id.
The inventor’s brief explains that the fish are able to make the same color selection, and the process here apparently mimics their color selection preferences. On appeal, the Federal Circuit found that piscatory mental processes tend to suggest that the invention is unpatentable.
While we decline today to adopt a bright-line test that mental processes capable of being performed by fish are not patent eligible, this observation underscores our conclusion that claim 34 is directed to the abstract idea of selecting the color of a fishing hook.
Id. The court does not offer an explanation for its conclusion other than a cite to Elec. Power Grp. (statements regarding human mental processes). Perhaps a cite to Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016).
The court suggested that the claimed method might become patent eligible if the measurement techniques were limited to a particular method or instrumentality. “Because the claims before us are not limited in the way Mr. Rudy suggests, we are not in a position to opine on whether theoretical claims that were so limited would be patent eligible.”
Here, the court repeated its prior statements that the PTO guidance on patent eligibility does not bind or limit the Federal Circuit in any way. “To the extent the Office Guidance contradicts or does not fully accord with our caselaw, it is our caselaw, and the Supreme Court precedent it is based upon, that must control.”
Rudy also envoked the machine-or-transformation test — referring to the fact that the fish was originally free but was then caught. On appeal, the Federal Circuit confirmed that the test remaines a “useful and important clue” to eligibility. However, the claim here does not require actually catching a fish. Rather, as Rudy explained in his own briefing: “Landing a fish is never a sure thing. Many an angler has gone fishing and returned empty handed.” Perhaps the adage here should replace “angler” with “appellant.” No Patent for Rudy (Yet).
MaxDrei has a post on this topic over at Big Jean’s place.
He posts:
“Reminds me of the “Blue squash ball” case of decades ago, in England. The prior art was the conventional black rubber ball for the game of squash racquets. But then somebody discovered (and evidenced) that, against the conventional white walls of the court, a plyer could discern and compute earlier the rapid flight of the ball if the ball were to a blue one rather than a black one.
Objective problem: How to raise playing standards, in the game of squash racquets.
Solution: Have the players play the game with a ball that is blue.
Claim: A blue squash ball.
Eligible? Why not?
Novel: 100%
Obvious? No way.”
Here’s my response (BJ’s site not working):
“Eligible? Why not?”
Because some examiner would “find” that the claim is “directed to” a “natural phenomenon” or a “law of nature” without “significantly more.”
And if the examiner didn’t “find” that then some USDC J or panel of Fed. Cir. J’s would so “find.”
“Obvious?”
Definitely. Obvious to try and select from a finite number of identified, predictable solutions as a person of ordinary skill has good reason to pursue the known options within his/her technical grasp.
I’m not an examiner, but I play one on the internet. And I just tanked your claim in under 2 minutes.
But I need more time to search so I can do a record breaking outstanding quality job.
Nope – your mere assertions do not rise to establish a prima facie case.
You assert (without proof or reasoning of any kind) that the black to blue transition was one of identified and predictable solutions.
There is no evidence whatsoever before the date of filing of the blue, that such a solution was either countenanced, identified, or predictable.
Sure, playing an examiner on the Internet is easy to do — but why would anyone want to spend their time doing that?
Way to miss my point.
… and way to miss mine
… the reply mechanism at IPWatchdog is a bit like several other sites (comments OFTEN do not immediately appear).
This is a change (without any announcement or other indicator when posting) and also is not universally consistent. There are rare occasions in which a comment may immediately appear.
Also, depending on browser or device (or both), comments and indicators of comments are NOT consistent. Eventually though, most all comments do post.
Should we refer to the principle of law underlying this decision as Hooke’s Law? I have been searching for something in the decision on which to hang a joke. Or perhaps there is something fishy about the legal reasoning here.
This one is easy in my scheme.
Method? yes
Is the result of performing the method an item of information Yes- the color of hook to be used.
Is the useful result of the method arrived at by human use of the information?
Yes, the angler uses the information to select a hook.
If this were a component of a robot angler, I would suggest that it would be eligible, and the question would turn to a 103 inquiry on what PHOSITA would know about fish hook colors, rather than a 101 question about how a certain item of information (optimized fish hook colors) fit or fails to fit the statutory meaning of “process”.
Your scheme is (and remains) unconnected to the basics of patent law.
I find it interesting that none of the usual Lemming-like, upvote-everything-Malcolm-posts types of commented on the (apparent) passing/retirement of Malcolm and his blight of 15 years…
link to patentlyo.com
I’ve noticed his absence. Hope it’s a retirement and not a passing. Agreed with him on some issues and disagreed on others.
I never viewed you as being in the class of “Lemming-like, upvote-everything-Malcolm-posts” types.
Any ‘agreement’ that I think that I ever saw from you came from independent (and typically NON-patent law) philosophies. I do not recall a single patent law position that Malcolm espoused that had you agreeing with the Means that Malcolm would deign to apply to reach that position.
I don’t think I agreed with him on any of his patent law stances. His disdain for actual evidence and facts and procedure and law made that pretty much impossible.
I agreed with most of his politics.
His taste in music is/was excellent too.
I do not recall his musical inclinations.
In law school long ago, I took an advanced patent law class with one of the top people in the field. We studied how the USSR had set up their patent system. What they did was have a committee of experts in the area the patent was applied for evaluate the patent with no formalism and decide whether it deserved a patent.
As you can image, almost no patents were granted. This is exactly the system we have now at the CAFC where small minded people have decided that all of this is easy and they could have done it with their hindsight.
Only people that have never invented and worked in an area of innovation think like this. We need to wipe the CAFC. Trump might be up for it if re-elected. Just wipe it out and reform it with people that have the proper background and wipe the precedent back to like 2008.
Wipe these people off the judicial face of the planet. Plenty of work more fitting for them in the latrines of the national parks.
“Trump might be up for it if re-elected”
You keep on wanting to offer this as a possibility, but have provided ZERO backing for why this may be so.
It is coming across as an “empty wagon” effect.
And you keep nay saying it. Trump might be up for this.
The “nay saying” is directly related to the fact that you continue to lack ANY basis for your supposition.
But by all means, keep on clanging away…
“Any basis.” I’ve heard rumors that Trump has mentioned the patent court as Obama’s giving in to SV for campaign money. I’ve heard rumors that Trump gets that this is just another stacked court. Trump just needs to understand that he doesn’t have to replace the filth one by one, but can rid us of the filth all at once.
I have heard plenty of rumors of all types.
Be that as it may, my first response to you on this point carried more than just rumors.
Until I see anything of merit from you, this ALL remains wild speculation from you.
Trump is simply not the answer that you (so desperately) want.
… speaking of Trump (and Trump-like behavior),
Have you noticed that Malcolm ended his 14th year of blight with a several week hiatus from posting, and that has now been bookended with an even longer hiatus near the beginning of his 15th year?
It has now been over an entire month without a single post. His last post was March 26 on the ‘A single inartful statement in the prosecution history’ thread. That minor quip came nine days after his next to last post on the ‘Relief Available to Patent and Trademark Applicants, Patentees and Trademark Owners Affected by the Coronavirus Outbreak’ thread.
My pal with the shifting pseudonyms as monikers appeared to try to take up the mantle, but has shown no resiliency.
anon, I think we are running into your spectrum problem.
Let it go. Difference of opinion on this one. Stop the endless nonsense.
I have no problem with a difference of opinion.
I have a problem with an opinion that steadfastly ignores reality ‘just because.’
It appears that YOU have a problem with someone being critical of your ‘just because’ opinion. Maybe you should let it go….
The very first time you ventured forth with this “Trump as Mess-iah” view, I provided a counterpoint that you just haven’t bothered with.
If you want me to “let it go,” then either you should “let go” of making asinine comments or deal with the reasoning provided. Your mere wanting to hold onto an opinion ‘no matter what’ deserves NO break from comments — no matter how many times you want to trot that opinion out.
Spectrum problem.
Your mindless repetition problem Trumps any perceived problems that you may have on my end.
Maybe try to move your mere opinion to being an informed opinion….
Otherwise, I will reserve the right to bash your silly notion any time that you want to float it.
anon, it is definitely a spectrum problem you have. Let it go. Whatever my basis for what I am saying is fine. I say what I have as a basis and it is fine.
It is fine. It is fine. It is fine.
Expect me to keep saying it and it is fine.
“Whatever my basis for what I am saying is fine.”
Except that it is not.
Everyone certainly may have an opinion. Having an uninformed opinion directly in view of an informed opinion being immediately obtainable is something that I will take the opportunity to NOT let go.
Your empty wagon syndrome can easily be rectified.
You also certainly may not like the fact that I point out that YOUR problem is easily rectified. But it is a fallacy to turn and try to put ANY blame on me for pointing out YOUR problem.
And I certainly do not have to let THAT go.
anon, I said the basis for what I am saying is.
So why do you keep brining it up? You aren’t the editor of the blog.
What is ridiculous about this anon is that there is nothing false about what I am saying. It is me trying to drum up support for this remedy and there are rumors that Trump feels the patent court was stacked by Obama.
It doesn’t fit what you like so you just go on and on about it.
Spectrum problem.
Why would I need to be the editor to point out that your “basis” is a mindless “that’s how I feel and I don’t care that you have provided a meaningful counterpoint that shows the vapidity of my position”?
You are certainly free to post such vapid opinions — every bit as much as I am able to remind you of your validity.
If anyone between you and i is trying to act like an editor, it is you who wants me not to post, while you remain free to post.
That’s not going to fly.
Ever.
IF you actually think that there are signs that Trump actually thinks that the CAFC was stacked (whether or not such is the case), then SHOW that evidence.
All (and I do mean ALL) that you have ever done on this point is repeat your feelings.
I “get” the view of stacking.
I have even posted my own confirmations on the Big Tech capture rampant during the Obama administration.
That though is simply NOT the same thing as this rather silly pipe dream of yours that Trump is going to be some sort of “$avior.”
NW, what are you referring to with “spectrum problem”?
Near as I can tell, Ben, Night Writer thinks that just because I do not accept his banal, unsupported feelings (as if those feelings should have weight when faced with a counterpoint presented against what he feels), that somehow my ‘judgment’ suffers from a ‘spectrum’ problem.
As if ALL opinions are due equal weight…
The opposite of having a critical and discerning mind.
Of course, he feels this way because I have rained on the parade of HIS views.
I don’t have to show you evidence anon. I am reporting a rumor. Keep posting all you want about me. I am going to ignore all your further posts regarding this issue and continue to try and drum up support for this remedy.
I am put this out as what it is. A rumor that I’ve heard and a possible remedy that I think might happen if the R’s win the Senate, House, and Presidency.
What is annoying about you is that you keep trying to frame it as if it is inappropriate for me to post this when I don’t make it anymore than what it is. And you ridiculously ask for proof of a rumor and act as if I have asserted more than I have. I am not misrepresenting anything and put it out there as is above.
“and continue to try and drum up support ”
Yay empty wagon…
Tell you what: you would do a FAR better job of gathering support of people that may actually help you (those that can think critically) if you do MORE THAN merely mewl about your feelings.
And your attempted spin here is most odd. NONE of what I have rejoined to you on this issue is that your posts are “inappropriate.”
Wrong word.
It would be very appropriate to discuss Executive action (even though as I already told you, this is a Congress Domain issue – not one for the Executive Branch) that MAY have an effect on patent law matters.
But your inanity does NOT come from any sense of appropriate/non-appropriateness.
It comes from your bleating a personal view without ANY substance, and in the face of push back to you that has been directly on point.
As I said, ANYONE can have any opinion. But try to have an informed opinion — especially if you are also trying to “drum up support.”
In our nano-material future, we will have materials which can sense both depth and water clarity and which can change there color. In this future, would using such a material for a hook and programming it to implement the rules above be obvious over the blog post here?
Over this post? Not likely. This post (as NPL) does not provide for the enablement requirement.
All anon, all the time.
Uh, oh. Mistake. You got a bit too specific there about a point of patent law, Snowflake.
What tribunal(s) require(s) that NPL meets “the enablement requirement?” Extra credit — upon what party falls the burden to show that “enablement requirement?”
You will not, because cannot, answer, of course. You will not find the answer in Wikipedia.
Now, do what it is that you are paid to do.
Extra credit: avoid the tells if you think you can.
Hi Shifty.
by the by, a past discussion already explored the cases that showed the presumption of enablement was due to granted patents.
NPL simply lacks that aspect.
Sure, some NPL may sufficiently have enough within its four corners to satisfy enablement lacking that presumption.
But you were (yet again) FAR too eager to play ‘gotcha,’ as the comment was to this blog, and this blog — on its own — clearly lacks enablement.
So, yet again, hi Shifty.
(Your usual memes await, I suppose)
You cannot answer a substantive question about patent law, of course. It was just a note to Slashdot Reader. He may have not known that you have no idea what you were typing about. Until now.
In view of your hurry again to play the “gotcha” game, and in view of your typical lack of success doing so, I have a new historical pseudonym for you:
W. E. Coyote
You confuse the Br’er Rabbit game of asking again that which has already been explained with not being able to answer.
Your games begin again.
Weeeeee!
The only thing understandable from your gibberish is “Br’er Rabbit.” So, in your mind, are you Br’er Fox or are you Tar Baby?
Now do what you are paid to do.
Paid?
Is this a new game from you – to suggest that I am paid to post?
That one is easy to dispose of: I am not paid to post.
As to what you view as gibberish, meh, you have already made clear that you are only too willing to project onto others your own personal lack of understanding. So too here, what you claim as gibberish is merely more of your personal lack.
That’s rather b00r1ng.
SR, I see you understand the issues but it seems nobody can answer your question. The answer is yes. Your blog post is not enabling per se but it can serve as a teaching, suggestion, or motivation to do something that one day one of ordinary skill in the art would be able to do without undue experimentation.
Shifty – you are mixing the colloquial with the legal.
It can NOT serve as a teaching suggestion or motivation – as those legal terms are to be understood in law, in the application of references to establish a legal point of obviousness/non-obviousness.
Further, your own phrasing is incorrect (at the point of added emphasis):
“Your blog post is not enabling per se but it can serve as a teaching, suggestion, or motivation to do something that one day one of ordinary skill in the art would be able to do ”
This type of ‘one day’ is the exact opposite of the legal point at hand.
… per Shifty’s “logic,” the following statement ‘makes obvious’ ALL pharma inventions:
Gee, I wish that there was a remedy for any and all ailments that currently or may in the future arise that afflict humans.
A reference (e.g., blog post) must enable someone to practice the invention in order to anticipate under Sec. 102. But obviousness is determined with respect to the date of invention, not the dates of any prior art teachings. You might take a look at Amgen Inc. v. Hoechst Marion Roussel, Inc. (Fed. Cir. 2003) and the cases cited therein. Under Sec. 103, a reference need not be enabled; it qualifies as prior art for all that it teaches or discloses.
… for all that it teaches…
You miss what that actually means.
Ok, Tar Baby. So, in your mind, what do you think it means?
Oh no, Mr. W.E. Coyote, you need to explain your own attempted use of a (pseudo) case cite.
What do you think “for all that it teaches” means?
I’m just pointing out that your quote necessitates an understanding of what that term means.
You used it, go ahead and explain how this blog as a references teaches enough — on its own merits — to serve as a proper piece of prior art in an obviousness rejection.
What exactly do you think is “being taught” here?
(other than you getting taken to the woodshed, as usual, I mean)
“go ahead and explain how this blog as a references teaches enough — on its own merits — to serve as a proper piece of prior art in an obviousness rejection.”
Read Amgen Inc. v. Hoechst Marion Roussel, Inc. (Fed. Cir. 2003) and the cases cited therein. Then we can talk.
Read them — go ahead.
Fill this room with your intelligence.
Of course, you will not. You will not have anything resembling a substantive answer regarding what it “actually” means.
Patent law is really hard, isn’t it?
QED.
abc
Gee, that was fun.
You used it, go ahead and explain how this blog as a references teaches enough — on its own merits — to serve as a proper piece of prior art in an obviousness rejection.
[Sigh]. Read, for the first time, Amgen Inc. v. Hoechst Marion Roussel, Inc. (Fed. Cir. 2003) and the cases cited therein. Then we can talk. But, it’s not on Wikipedia, so.
You realize you’re not making a good first impression to SR, though he knew from the git go you don’t know what you’re typing about. Patent law is really hard, isn’t it?
Now, do the thing you are paid to do. Res ispa loquitur.
Pardon Potential repost (due to George Carlin Filter for having the word “a” precede the word “hole”)…
As already mentioned – read it. STILL your turn.
As to ANY view (of yours) as to making impressions, your LONG history of fu ti1e “g0tcha” attempts already shows that such views are without meaning.
As is your insistence on a meme that I have refuted (being paid). But hey, you employing your memes have never relied on those memes actually being accurate….
(the Latin phrase works against you here, by the way – and brings to mind our previous engagements about you trying furiously to dig yourself OUT of a deep hole that you have dug yourself into)
You’re no longer being paid? So, they were correct. It is the mental illness.
Three strikes in one post.
Asserting falsities and then retracting them with other falsities is a rather trite rhetorical trick.
Waiting five days to do so just makes you look desperate to come up on top in our exchanges.
Out of the (quite literally) hundreds of your dedicated posts to me, your coming out on top has never happened.
Persistence alone simply won’t do. We both know that I am far more persistent than you.
You are persistent? You seem to be proud of some really strange things. More of the mental illness?
[thinks nobody notices how he changed the subject to avoid answering the question. don’t tell him; could trigger.]
link to patentlyo.com
Do you not have any new games to play?
You cite to the written record where I cite to the written record showing you were so confused you called yourself a liar?
You’re not very good at this, are you?
More of the mental illness?
[thinks nobody notices how he changed the subject to avoid answering the question. don’t tell him; could trigger.]
The point to the record in which your same style games were exposed.
Again.
Don’t you have any creativity?
[sigh]
The cited “same style games,” as labelled by this round of the mental illness:
“Excuse me, so you say you did not disagree with yourself?
[sigh]
But there’s that pesky written record: Patently-O Bits and Bytes, March 30, 2020. A. Lincoln, April 8, 2020 at 6:23 pm, Comment 5.1.1:
— Interesting. Are you the person who said “Yes, you ‘quoted’ me at the same time attempted a game of ignoring the meaning of the quote and tried to duck around the fact that YOU made up the notion that somehow MY ‘direct quote” was an attempt to directly quote you — which was never the case.” —
[a verbatim quote of what anon typed on April 4, 2020 at 7:49 pm, under Patently O, “Sarnoff on After-Arising Technologies and the Doctrine of Equivalents.” Hence, the quotation marks.]
— to which anon replied, April 8, 2020 at 7:13 pm Comment 5.1.1.2:
“… that last line of yours (was never the case) is an outright
L
I
E”. —
Should one believe anything that you type? Now pound the table and make some more stuff up, Your Majesty.”
[and yet, somehow, still thinks nobody notices how he changed the subject to avoid answering the question. don’t tell him; could trigger.]
The ‘majesty’ meme only shows how wrong you are here.
Here’s a hint for you: context.
Maybe use the pandemic time to do something useful…
If what you say is true, your Majesty, is there a context in which you do not consider yourself a liar?
[and still thinks nobody notices how he tried to change the subject to avoid answering the question.]
[don’t tell him; could trigger.]
The link provided link to patentlyo.com has to do with the use of rhetoric of the TYPE of questions such as:
Have you stopped bearing your wife twice a day?
Do you understand why this TYPE of question is a bogus question that need not be answered?
When you are busted playing this banal game, the answer is NOT to double down.
But that is what you attempt to do.
This is why the meme of self-flagellation fits you so well.
I suppose that you must seek victory where you can find it, even if it is only over yourself.
But I will share that the Beavis level of your game playing is like sh00t1ng fish in a barrel to debunk.
Other games you insist on playing (I.e., the illness accusation) are shadows of memes that were played out SEVEN YEARS AGO (and as pointed out with link to MaxDrei’s post of:
link to patentlyo.com
that itself leads to this post:
link to patentlyo.com
I took just over seven years for Malcolm to take my advice – and you are more than a bit slower than he ever was (although, I tend to doubt that you have seven years left….)
Ding Ding Ding!! “games” !!!
And there it is! He just can’t help it with the tells!!