Adaptive Streaming – Not Patent Eligible

by Dennis Crouch

Adaptive Streaming Inc. v. Netflix, Inc. (Fed. Cir. 2020)

In this non-precedential decision, the Federal Circuit has affirmed the lower court’s finding that Adaptive’s asserted claims are ineligible under Section 101. In 2019, Adaptive sued Netflix in C.D. Cal. for patent infringement.  Rather than filing its answer, Netflix immediately filed a motion to dismiss for failure to state a claim. Fed. R. Civ. Pro. 12(b)(6).  That motion was granted — case dismissed.

The patent claims a personal broadcasting system that transcribes an incoming video into a more usable format.  Us7047305 (1999 priority date).  I subscribed to Netflix back in 2001 — receiving rental DVDs in the mail each month.  Netflix has changed dramatically — and one bit of its process appears to be a user-based translation engine.

Claim 39 at issue here requires a “broadcasting server” coupled to a “processor” with the capability of transcoding an incoming video signal from a first compression format into a second compression format “more suitable” for the client device — and available in multiple video stream outputs.  A dependent claim includes the functionality of changing the compression output “in response to a change in bandwidth conditions.”

Abstract Idea: The district court identified the abstract idea here as “collecting information and transcoding it into multiple formats.”

Directed To: With regard to what the claims are directed to, the court looked to the written description coupled with the claim language to deduce the “focus of the claimed advance of over the prior art.” (quoting Solutran (2019) and Affinity Labs 2016).  Here, the court concluded that the focus of the invention is format conversion of incoming video. “The focus is not any specific advance in coding or other techniques for implementing that idea; no such specific technique is required.”

Something more: The court offered a grade for the patent’s performance under Alice Step 2: “The claims also flunk the second step of the Alice inquiry.”  In particular, the court notes the presence of “generic” hardware carrying out its common function known in the art.  That much was admitted in the specification.

Patent Spec.  Regarding novelty + obviousness, the court here reiterated that satisfying those inquiries “does not imply eligibility under § 101, including under the second step of the Alice inquiry, because what may be novel and non-obvious may still be abstract.”

In its reply-brief, the patentee argued also that the commercial success of its invention should be used as evidence of patent eligibility.

[C]ommercial success and industry recognition serves as evidence that the technology underlying the asserted patent is far from well-understood, routine or conventional, and supports that the patent claims are directed to a technological solution to a technological problem.

[Adaptive_Streaming_Inc._v._Net_21]. The court did not consider that argument – considering it forfeited because not raised in the opening brief.

= = = = =

The patent here was originally owned by the dot com LUXXON, a company developing streaming services.  The patents were then assigned to an offshore holding company Hutchison Mediator (Bahamas) as part of an asset sale (part of CK Hutchison Holdings). Then WI-LAN took ownership and transferred rights to Adaptive Streaming, which appears to be a wholly owned subsidiary of WI-LAN (at least no other company owns >10%).


54 thoughts on “Adaptive Streaming – Not Patent Eligible

  1. 6

    How can I, a lowly patent practitioner, with any certainty, draft a claim to cover an invention, knowing full well that when put to the test, a judge will decide which words of the claim do or do not have legal effect. Might as well include the word “optionally” in front of every claim limitation. Judicial subjectivity and unpredictability are sides of a coin. A god-awful shameful application of a god-awful shameful Supreme Court precedent. Why does Congress let justices that it approves steal it’s own power to make the law?

    Why do these “judges” avoid section 103, the right section to evaluate claims such as Adaptive’s? Chicken**** laziness? Arrogance? I don’t know, but it’s clear they prefer the ease of Dance Contest Judges over Federal Jurists burdened with such inconveniences as the rigorous application of objective law.

    It’s time to call this nonsense out for what it is: a choice. A choice by Federal judges to take the easy way out at the cost of predictability and R&D investment.

    [btw, did Malcolm die or something?]

  2. 5

    I wonder how many turn of the century patents (well regarded as the age of invention and a strong patent system) would survive the Alice “test.” I guess we don’t have to speculate here, because the answer is none under the same ‘gist or heart of the invention’ / “flash of genius,” etc. tests created by the 2nd Circuit. Alice “something more” test is the same – a non-objective and therefore subjective rule (actually non-rule) of law that was exactly the pernicious doctrine purportedly abolished by the ’52 Act (it didn’t work). Indeed, major driver in the creation of the CAFC itself, was the BS subjectively ‘gist’ test coming out of the 2nd circuit. The need to discuss the chain of ownership, IMHO, evidences the guilty mind. Oh, it’s a troll. Break out the strawman – the Alice test – and then burn it. And it’s just patent law, the red headed stepchild of the Constitution, so such matters as equal protection, due process, etc. can just be ignored.

    1. 5.3

      Alice “something more” test is the same – a non-objective and therefore subjective rule (actually non-rule) of law that was exactly the pernicious doctrine purportedly abolished by the ’52 Act (it didn’t work).

      I agree with this 100%, but I do not know why you are confining yourself to a criticism of Alice step 2 here. Step 1 is even more subjective and opaque to rational inquiry.

      How is the dispassionate observer supposed to “know” (merely from reading them, and without the benefit of the CAFC’s opinion here) that the claims at issue here are “directed to the abstract idea of ‘collecting information and transcoding it into multiple formats’”? Surely one might be forgiven for (naïvely) supposing that the claims are directed to “[a] system to broadcast to at least one client device…,” those being the actual words used in the claim. Regrettably, the rest of did not have access to the same set of poultry entrails that the CAFC consulted to augur this legal conclusion.

      1. 5.3.1

        Although no one wants to openly admit it, the “directed to” formulation is really about getting to the “gist” of the invention or the point of novelty. Stated in another way, it means deciding which limitations are important and which ones are excess verbiage. While courts aren’t supposed to ignore claim limitations, the reality is that this is exactly what happens. Although counterintuitive, the most effective way to defeat a 101 challenge seems to be making a prima facie case that a specific aspect of the claims is novel and nonobvious. Anything necessary to make a claim novel must be important and included in the “directed to” formulation. However, arguing about a claim as a whole isn’t likely to change this analysis.

        In this case, if you assume arguendo that the application is directed to “collecting information and transcoding it into multiple formats,” the additional limitations don’t seem to add “something more” (whatever this means). Here, the additional limitations either describe the information that is being transcoded, are inherent in the act of transcoding, or specifies/identifies places for transcoding to occur. Obviously, there is no rule that these types of limitations should be ignored, but it seems hard to argue that they are important enough to expand the scope of the “directed to” formulation. While technically distinct, a claim directed to a “system that transcodes information into multiple formats” isn’t likely to be enough.


          You do realize that Congress expressly removed “Gist of the Invention” (as well as the power of the Supreme Court to determine by Common Law evolution what ‘invention’ was) in the Act of 1952, right?

          Although no one wants to admit” CAN be levied for a FAR MORE pernicious abdication of responsibility.


            [You do realize that Congress expressly removed “Gist of the invention” (as well as the power of the Supreme Court to determine by Common Law evolution what ‘invention’ was) in the Act of 1952, right?] And yet as soon as Renquist passed (he was known as the gatekeeper), SCOTUS got all busy body with patent law again – Breyer must have been giddy like a child – in a few short years – blamo!! The resurrection of the test. And all the other crap they have done to 50, 60, 100 years of patent law. Your view of stripping jurisdiction from SCOTUS is getting sounder with each decision. But what then? Pass the ’52 Act over again with a preamble of – “We Mean It This Time!” Seriously, nothing could be more pellucid than the ’52 Act with the 101,102,103, 112 structure as abolishing the ‘gist’ or heart of the invention test – it even specifically says so in the record. But there we have it – Alice: The gist is resurrected. What a world. What a crappy SCOTUS.


              Jurisdiction stripping and a resetting of the CAFC (to remove the stank of the Supreme Court’s ‘Simian in a Cage’ training.

              Congress has the authority to apply jurisdiction stripping (even to the Supreme Court) of any matter that falls outside of an original jurisdiction. Patent case at the Supreme Court are one such type of matter.

              I do add that the CAFC would need be overhauled. As it currently stands, it has been browbeaten by the Supreme Court so badly that it cannot serve its original purpose.

              The allusion to Simian training comes from a psychological thought experiment about using a firehose to train simians in a cage. Roughly (and there are better summaries out there): In the cage there is a step ladder at its center, and suspended above the step ladder are a bunch of bananas. Naturally, the simians will want to climb the stepladder to obtain the bananas. The moment they do, the fire hose is used to dissuade them. Introduce a new simian, and if that simian (being untrained) sees the bananas and attempts to climb the step ladder to obtain them, the other simians will pounce on the new simian and beat him to a pulp. Introduce a new simian and the same thing again. One can get to a point with enough introduced simians (and older simians are replaced with each new simian), that NO simian has ever actually been fire-hosed, but will still prevent any new simian from climbing the step ladder to obtain the bananas.

      2. 5.3.2


        Watch out for Trade Secrets Greg. I’ve been saying for 10 years that they are the wet dream of SV and now they have Biden to serve them. He will do far more for them than Obama did.

        And Harris is from SV.

        About to get a lot uglier. If the Ds win the Senate, I think it is possible that patents take another giant hit.


          Since you mentioned it. Under Joey B, here’s what’s coming for IP and competition laws:

          1. Meg Whitman as Commerce Sec. (Favors galor for China & SV)
          1.a – We need to end the Trump “trade wars” it’s hurting farmers and consumers! It’s like a tax! – women and minorities hurt most! China tariffs come off. The drum beat has already started.
          1.b Post office subsidy for imported mail – increased.
          1.c CIFIS – stacked with yes people, you know because diversity or something.
          1.d Statutory or executive ‘reform’ weakening ITC 337 cases or customs enforcement. Those Wilber Ross – importer/enforcement bonds – are going to be abolished – or reduced to a meaningless amount.
          1.e PTO/PTAB stacked with SV riggers and haters. Weaponized. They will be searching your political affiliation and donor records before they rule on your PTAB case. You will need to be connected & a party loyalist to get a case out of PTAB. And you better be better wired in than the petitioner. Again, boom times for the connect class of K St lawyers. We reward our friends and punish our enemies will again be the rule of the roost. And the roost has a pecking order. PTO will need to be lobbied by connected log rollers.
          1.f Some kind of sponsored innovation ‘green deals’ AKA federal slush funds awarded to party connected loyalists. Probably a Co2 (“carbon”) tax, AKA your electric bill, as the funding source.
          1.g A “Department of Innovation” under Commerce, purporting to direct federal research and grant money to spur innovation. This was recommended in the FTC report on innovation under the AIA.

          Weaponized trade secret law.
          2. SV unleashed. FBI and DOJ criminal prosecution under the guise of federal trade secret law – any break away SV start-up. That will send a message, don’t challenge big tech with your own start-up, you will get a SWAT home invasion, prosecution and go to jail. Of course, SV will need to pay-to-play the well paid/connected on K St lawyers. Probably boom years ahead for the likes of Wilmer. Just wait until SV figures out weaponized trade secrets will cut both ways and they need to pay-to-play and pay-for-protection.

          2.a The anti-trust suits will be dismissed with some insider/SV crafted consent decree – that gives SV even more monopoly leverage. Section 230 gets a re-work in SV favor, maybe used as anti-trust shield, certainly used to kill competition.

          3. Unlimited H-1b grants, killing STEM wages. And the cruel message under #2 – there is no escape.

          Education/Research Grants.
          4. School choice and charter schools will be zero’ed on money and regulated out of business.

          5. Federal research grant awards – will again need to include agenda hooks – global warming – patents hurt innovation – STEM shortage – Immigration is super – etc. Agenda set by the new Department of Innovation.

          6. Oh, and don’t forget – SCOTUS expanded by at least 3. Probably in the bent of individual property right haters (everything already belongs to the government, even your money, and therefore everything is like a revokable license to use – Breyer ‘optimal use’ type judges). You can expect more administrative ‘courts’ as since Oil States kicked down the door. An administrative Trade Secret Criminal & Civil Court at FTC or other Agency is in the equation.



            There you go again, wanting to have ‘facts’ that only get in the way of the desired narrative.


              Look here folks!

              anon thinks it’s a “fact” that under Biden the Supreme Court Court is going to increase in size.


            The anti-trust suits will be dismissed with some insider/SV crafted consent decree…

            I am not happy about this, but I think that this prediction is correct. Unfortunately, this prediction would have been equally accurate even if Pres. Trump had won re-election. The sorts of antitrust suits presently pending against Google & Facebook are very hard to win, in view of the law-&-economics doctrines that successive generations of GOP-appointed judges and justices have installed in our controlling precedents.

            The DOJ has never really had a hope of winning much from either. The suits can end in a precedential loss, or in a settlement. Given that the defendants know that a decision on the merits will likely be a victory for them, they have no incentive to settle on anything other than generous terms, so the settlement (as you say) will likely be something close to the terms that they will dictate.

            Regardless of administration, unless and until Congress uproots the rule-of-reason jurisprudence, antitrust enforcement will lack the tools necessary to do its work. Hopefully the current confluence of Elizabeth Warren and Ted Cruz on this issue means that Congress might just give the DOJ & FTC the tools they need to restore some force to antitrust law.


            “We need to end the Trump “trade wars” it’s hurting farmers and consumers! It’s like a tax!”

            I’d say the President being able to understand who is paying for the tariffs is an improvement (albeit a rather minor one).


            Unlimited H-1b grants…

            From your lips to God’s own ears. Somehow, however, I regard this prediction as unlikely to bear fruit. We did not have unlimited H-1b’s under Pres. Clinton, nor under Pres. Obama. This likely reflects the fact that the statute caps H-1bs at 65K/year, and Pres. Biden has no ability to change this statutory cap even if he wants to.

            But what evidence have we that Pres. Biden might want to? None at all, near as I can see. Pres. Biden has always been very interested in foreign affairs and banking regulations. There is no track record of him taking much of an interest in immigration law. Nor (as recent history has shown) is there much by way of immigration law reform that can pass Congress. Likely, then, there will be no changes to H-1b law (regardless of the desirability of a complete lifting of the statutory cap).

            [E]nd the Trump “trade wars” it’s hurting farmers and consumers! It’s like a tax!

            Tarriffs are not “like” a tax. They are a tax. One would certainly hope that the incoming administration would end the pointlessly futile but surprisingly expensive and domestically destructive “trade war” with China.


              >>unlimited H-1b

              This is actually good for me, but I know a lot of people that have lost their jobs because of it. And the countries that lose the genius programmers are not happy.


                I know a lot of people that have lost their jobs because of it.

                (A) You cannot possibly know anyone who has lost a job because of unlimited H-1b visas. There has never been a moment in your lifetime when there were unlimited H-1b visas.

                (B) Assuming that what you really meant is that you know lots of people who have lost a job to an H-1b visa holder, I would ask you to interrogate this claim with the ordinary level of skepticism that you would bring to any other factual assertion. How do you know that an H-1b visa was a but-for cause of these peoples’ job losses?

                1. >a but-for cause of these peoples’ job losses?

                  That is a ridiculous standard. I know US citizens that have been laid off and replaced with H-1b visa holders. This is fairly common.

                2. Night Writer,

                  This is a common tactic of Greg’s. He will shoot from the hip for his own points (notice a recent correction from Prof. Crouch), but will demand exacting evidence from anyone else who proposes a different point (while simply not accepting common sense – likes jobs being a zero-sum game).

                3. Ok, forgive my hyperbole on ‘unlimited’ h-1b, how about just enough h-1b’s to fill the desired amount by big tech (they can set some estimated # goal with the Admin and get waivers for the rest) to create a perfect balance of tech talent and third world brain drain to make all right with the world and the unicorns to sing in unison. Perfect optimal result (sound familiar). Is that better for you? . . . aaannd . . . it will still depress American STEM wages (the desired result) but it sounds peachy. Something about p**** on me and telling me it’s raining springs to mind.


              [Tarriffs are not “like” a tax. They are a tax. One would certainly hope that the incoming administration would end the pointlessly futile but surprisingly expensive and domestically destructive “trade war” with China.]

              Wow. I have a scientist friend at EPA – programs super computers in FORTRAN for hydrology modeling, ph.d., etc – that holds those views as well. Over simplistically calling a tariff a tax, is the same logical fallacy as declaring a patent a monopoly – when we all know (well at least people informed on the further complexity of IP/competition policy) nothing could be further from the truth.

              I suppose in a perfect world the US could drop the China tariffs (should we assume that China and the EU will drop their tariffs as well?) and embrace Friedman “The world is flat” race to the wage bottom. Of course we would also need to assume that the CCP is just some benevolent force – and not one bent on world domination.

              On a lighter note. In anticipation of incoming Biden administration, Rosetta Stone is having a sale on it’s mandarin programs, you know, that way we can understand what the guards are screaming at us in the labor camps.

              Maybe you should read some Pat Choate to better inform your views of how the world works. link to


                iwasthere – this stems directly from Greg’s “Big Pharma” view of the world (and the LACK of a corresponding appreciation of – as 6 may put it – Murica.

                pssst – ask him for some ‘evidence’ for his hackneyed world views…


                I suppose in a perfect world the US could drop the China tariffs (should we assume that China and the EU will drop their tariffs as well?)

                Who cares whether they do or not? The governments of China and Europe need to collect tax from their citizens just like any other government. If they care to make the incidence of those taxes fall on purchases of imports, it is nothing to any of us. As Bastiat observed, we do not add obstacles to our own ports just because some nations have rocks in their ports.

                [W]e would also need to assume that the CCP is just some benevolent force – and not one bent on world domination.

                It is precisely because I regard the CCP as dangerous that I want to do away with the statutory cap on H-1b visas. Indeed, if (as you imply) you are concerned about China’s growing and unwelcome hegemony, I am hard pressed to understand your professed worry about “ third world brain drain.” I want to poach away the best talent from the rest of the world to the benefit of the United States. How else are we to beat China?

                I want them to be outnumbered in engineering 10 to 1. And I want the talented engineers of the rest of the world to regard America as such a welcoming nation that every competent engineer in China decides to come here to work.

                [J]ust enough h-1b’s… will still depress American STEM wages

                A) Color me skeptical of this putative wage suppressing effect. There are at lot more aeronautical engineers in Seattle than in Sioux City, and yet the prevailing wage for such work is higher in Seattle. Markets are complicated. Simplistic models like “more H-1bs suppress wages” have little actual data to support them.

                B) Are you serious about beating China or not? Do you think that American STEM workers will be better off in a world controlled by the CCP? America needs to be serious if we do not mean to be run over. Empty gesture posturing of “strength”—such as tarriffs and immigration restrictions—are no substitute for real strength like tech superiority and international regard as being a desirable place to live and work.

                1. The CCP collects taxes? Sounds rather redundant since the CCP owns the means of production. So we will just ‘facebook’ and ‘google’ the CCP to death with our vast # H-1B STEM army and tech superiority? All that superior facebook storage and data mining technology isn’t going to stop a single tank or build a single tank. How about tariffs to keep our industrial base? Guess all those rubes in flyover country can just “learn to code” as the CCP (and the rest of the world for that matter) systematically bleeds out our manufacturing base.

                2. Greg’s macro-economics views are even worse than his computing innovation protection views (if that were even possible).

                3. Guess all those rubes in flyover country can just “learn to code”…

                  “Rubes in flyover country”? Lord have mercy, man. What are you talking about?

                4. So we will just ‘facebook’ and ‘google’ the CCP to death with our vast # H-1B STEM army and tech superiority? All that superior facebook storage and data mining technology isn’t going to stop a single tank or build a single tank.

                  Do you mean to suggest that our domestic defense industry will collapse without tariffs to protect it from foreign competition? This intimation seems… ill-supported. There are governments around the world petitioning our government for the privilege of being allowed to buy the wares of our armament manufacturers. This does not appear like an industry in urgent need of protection from competition on the international market.


            People have no idea how powerful Trade Secrets can be to lock in employees.

            And let’s not forget that the SV companies pled GUILTY to colluding to reduce the salaries of their tech workers.


              Agreed. Patent protection is much the better way to incentivize tech innovation because patents do not create an anticompetitive obstacle to the movement of talented workers among prospective employers. The wage-increasing effect of curtailing the ability of employers to tie employees down with trade secret laws would dwarf the (hypothetical) wage-suppressing effect of raising the H-1b cap.


            Actually, iwasthere
            >They will be searching your political affiliation and donor records before they rule on your PTAB case.

            I believe this and think this is far worse than anything else they could ever do.

            I think any employee of the USPTO that does this should get life imprisonment.


              I believe this and think this is far worse than anything else they could ever do.

              I do not believe that the PTAB presently behaves in this manner, but I share your concern that there is very little in the law as currently formulated to stop it from happening.

              The way to correct this is to hive the PTAB off of the USPTO and move it into the Art III courts. Draft a special set of FRCP and FRE for the PTAB so as to maintain the low-cost and high velocity of PTAB litigation compared with other Art III courts. That way the PTAB judges would not be political appointees answerable to the political motives of a political branch.


                I agree Greg. The more independent the PTAB the better.

                Basically it could just be the district court level equivalent of the CAFC.

                1. As I have noted in the past, Administrative Agency tribunals have a range of ‘independence’ of the pseudo-judicial aspect from the (necessarily) ‘executive’ aspects.

                  The Patent Office is FAR down on that spectrum for LACK of true ‘judicial independence.’

                  Whether or not “belief in that the PTAB presently behaves” is absolutely immaterial to the capability of political influence.

                  (note as well that Greg OFTEN plays the naysayer on such things having dismissed out of hand the MANY discussions from the IPWatchdog site on the improprieties of the PTAB ‘judges.’)

                2. Would only the post-grant portion be spun off, or would you also have it handle the ex parte appeals? If it did, could 145 appeals perhaps be eliminated?

                3. [W]ould you also have it handle the ex parte appeals?

                  It is an interesting question. A board of political appointees has been deciding ex parte patent appeals for well over a century now, and there have been notably few examples of political interests intruding on those appeals in any discernible manner. That is an argument for leaving ex parte appeals where they stand.

                  On the other hand, we have spent the last four years pushing the bounds of federal corruption well past whither even the wildest TDS partisans had predicted we would go. I fear, therefore, that a long history of lack of corruption is too weak an argument any more for leaving well alone.

                  On balance, I would favor moving the whole work of the PTAB—ex parte appeals included. As you note, §145 appeals would become superfluous in such instance. It might make sense, however, to offer the patentee an option for appeal from the examiner purely on the administrative record, or with the PTAB to sit as a trier of fact with new evidence.


                You don’t think PTAB takes a look at the ownership? Certainly the petitioner will jump up and down pointing that out. Don’t you understand there are good owners and bad owners? Bad owners get the shunt, good owners get a hearing. It’s the Justice Breyer ‘test’ Alice and KSR – “common sense” AKA, hindsight 103 – for the Bad owners because that achieves the desired optimal societal solution, and that is how a Judge should rule. Seriously, he even wrote a book about this judicial philosophy. Doesn’t anybody read books anymore?



              As an Executive Branch action (and let’s say that only public information is in play), would this even be “against the law,” or MERELY application of a Rational Actor model (with the real fault being instead concentrating power in the “4th branch”…..?)


              Well isn’t the CAFC already doing that – when they feel the need to list the patent ownership chain before taking the Alice blow torch to the patent?

    2. 5.4

      ? You will hardly find being issued in the early 1900’s software and data manipulation or display patents functionally claimed like this that now get Alice 101 rejections.
      If you-all would something to really obsess about, here is an academic quote about other patent academics that I saw yesterday: “In recent years, patent scholars [such as Janet Freilich and Lisa Ouellette] have [observed that, thanks to lax disclosure and enablement rules] patent examiners are allowing inventors to achieve patents on what seems, quite literally, like “science fiction.”

      1. 5.4.1

        … those same “lax disclosure and enablement rules” that are a direct and necessary outflow of the Supreme Court’s empowering of PHOSITA….

        Is that what you mean, Paul?

      2. 5.4.2

        Oh I’m sure there are plenty of examples of the turn of the century patents being ‘abstract’ – a/c power? Means for electro-magnetic communication? Sounds rather an abstract/conceptual think – just math. Recall recent the f-35 helmet case – using all that trig ‘math’ as the pilot turns his head to keep the visor projected data displays from disorienting the pilot. Wasn’t that an alice punch out? Yes, as i recall it was. Sticking an iron core in oil? (an example of a famously litigated patent – SCOTUS double header). Is there something “more?” Some inventive step? Some flash of genius? The problem being with all the gist, heart, alice – ‘tests’ – is the non-objective nature of the ‘test’ (and I agree with the above – the first alice fault is ignoring the claim – which is true of all these ‘tests’). No patent or more specifically patent claim – survives this test. Because the first step is in practice: step (1) ignore the claim and erect a straw-man (gist, heart, abstract, inventive concept – it’s all the same sin of ignoring the claim language) then (2) burn the straw man – can’t find something “more.” You flunk.

    3. 5.5


      Is your use of the phrase “turn of the century” meant to be taken in accord with the Kondratiev waves of innovation?

  3. 4

    At this point it is just naked judicial activism. Taranto is openly hostile to patents and will do anything he can to burn them down.

  4. 3

    From the decision: “The claims also flunk the second step of the Alice inquiry”

    Wrong. The claims all easily pass at least the second step.

    The flunking grade belongs instead to these three judges.

    How do these — and the other like-minded anti-patent CAFC judges — sleep at night?

    They should be ashamed of the judicial swill they repeatedly spew.


    1. 3.1

      Pro say you don’t get it. We moved from integrity and the rule of law to do whatever you have to get what you think is right.

      These are the type of people you deal with in third-world countries.

      They are trash.

  5. 2

    Another easy one, another decision simply in the eye of the beholder of the reviewing court.

    In my scheme, this patent is easily eligible because the result of the method is information and the utility of the information is realized by a non-human actor (in this case the decoding engine on the target device).

    This patent is still weak on its face, both obvious and ill-described, so the policy problem is how to defeat it prior to depositions/ experts, because the unjust but efficient Aliceregime will need some kind of replacement. 12(b)6 is simply not fair to the parties.

    Yet, on similar plane, if some claim term were dispositive, the case would effectively end at claim construction. A now-missing step is needed to construe the invention as a matter of law. It should happen during the claim construction process.

    That’s where Alice could be used fairly, with adequate adversarial briefing and presentation that doesn’t blow the JMOL card.

    I can just start making my point as a series of propositions:

    Claims and Inventions are distinguishable
    A Process must have a result as a matter of law
    Newly processed information is a kind of result
    All information is abstract
    The latin root of Abstract means to consume
    No human mind, no abstraction
    Abstract inventions are intrinsically abstract
    Abstract claims are extrinsically abstract

  6. 1

    As for the broad concept of “systems that can receive a video
    signal in one format and broadcast [in another],” that was necessarily done for a long time before that in converting European TV signals into U.S. TV signals, since they used different numbers of scan lines per screen display.

    1. 1.1

      “that was necessarily done for a long time ”

      Meaning that the claims should fallen on 102 or 103; not 101.

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