108 thoughts on “Per se abstract?

  1. 11

    There are one or two people who care to understand.

    Information processing is a transformation.

    Consider a set of numbers, X, and function that sums X.

    The sum of X is a transformation of X. And the transformation is a physical process that requires space, time, and energy.

    Reality. Reality. Reality.

    Let me guess. The neo-Marxists (Ben, NS II, and so forth) on here are going to claim that this is a white supremacy point as it has to do with science and objective reality.

    1. 11.1

      I’m not a neo-Marxist and I’ve never attributed anything to white supremacy.

      I pity you that you feel the need to make this stuff up. A grown man at the end of his career, throwing accusations online from the safety of his anonymous arm-chair because he is too insecure in his own arguement. It’s disgraceful.

      1. 11.1.1

        Ben, the disgraceful one is you. You tro ll this site like a person paid to push anti-patent rhetoric. You never miss a chance to mischaracterize me or my arguments and so forth.

        You are a total disgrace and obviously a paid blogger. So some non-profit pays you to defame me. And, yes, like it or not, your arguments are from the new left which is neo-Marxists.

      2. 11.1.2


        Maybe you need to open your eyes to the world around you.

        Sure, Night Writer’s statements may NOT apply directly to you. YOU may not think that you ascribe to ALL of the characterizations that flow from a “neo-Marxist” comment.

        But pause and recognize that your comments here — as often as they are geared to being anti-patent – DO tar you with that brush.

        Your reply then is itself every bit as over the top as the umbrage that you may be feeling.

        Worse, YOU then ascribe emotions to Night Writer NOWHERE evident in his choice of characterizations. YOU employ a mindless ad hominem – whereas at least his denigration has some reach to the anti-patent nature of your posts.

        Before you then whine about ‘disgraceful,’ you may want to clean up your own disgraces.


          What you should notice anon is that Ben and NS II goal is to be disruptive when the pro-patent people have a good point.

          Ben has the habit too of accusing others of what he does. His point is to get a large volume of counter posts to be disruptive and make it seem to the casual reader that the points made are contested with reasonable arguments.

          It is the script of the paid blogger. I see it on every site I comment on. You should get on a site like the NY Times and play around. I made anti-vaping comments about eight years ago and was plastered with something like 800 comments against me and my arguments. It was obvious that these were paid bloggers for the vaping industry. My post was contestable regarding the addictive quality of nicotine and the fact that vaping was being used by people 12-17 as a delivery mechanism. Anyway, you don’t get people spending hours and hours contesting those points without being paid to do so.



            And the point is anon that if you want to see how the paid bloggers operate, then go to a hot button issue and post rational mild arguments on an important site like the NY Times and watch the h*ll fire come on you.


              I do not doubt the backlash that you would see there (and pretty much anywhere).

              That being said, there is some disassociation between backlash – and even backlash in volume and “being paid.”

              So while I certainly do not doubt that there ARE paid bloggers, whether or not Ben is one is not so cut and dried. I have shared my view of Ben previously, and would simply note that his posts are more (to me) in view of an anti-patent examiner lemming, than a paid blogger. He does appear to use both script content and techniques, but he uses them rather ineptly, and appears to be more of a copyist than someone whose profession it is to blog.

                1. That would be interesting, and perhaps 6 could pitch in as to whether or not such would violate office policy.

  2. 10

    So just how does one argue “per se” anything as long as SCOTUS (or at least the CAFC) refuses to define “abstract?”

    Sadly for American innovation, this eligibility petition — like all the rest — is D.O.A.

    1. 10.1

      We trace the origins of abstract to the combination of the Latin roots ab-, a prefix meaning “from” or “away,” with the verb trahere, meaning “to pull” or “to draw.” The result was the Latin verb abstrahere, which meant “to remove forcibly” or “to drag away.”

      ~Definition of Abstract by Merriam-Webster

      1. 10.1.1

        “‘to remove forcibly” or “to drag away.'”

        . . . which sounds exactly like what SCOTUS and the CAFC have done with the critically-important, previously-available protection of computer / internet / diagnostic (with, more and more, two or more being found in the same inventions) innovation . . .


          I see it as meaning the consumption of information by a human mind. No human mind, no abstraction.

          That should be the red line, and it would help clean up this mess.

          Abstract inventions should be seen as different than abstract claims. What are abstract ideas and laws of nature anyway? They are information. Nothing more or less. Natural Phenomena are things that aren’t new. The judicial exceptions are nearly entirely focused on information. Dealing with inventions made of information or claims lacking information are two different problems, but the overall problem IS information.

      2. 10.1.2

        The Court explicitly refused to use the dictionary definition of “Abstract.”

        This was not a small or inconsequential step.

    2. 10.2

      >So just how does one argue “per se” anything as long as SCOTUS (or at least the CAFC) refuses to define “abstract?”

      In fairness, we shouldn’t really need to know what “abstract” means because should just be an example of something that is not a “process, machine, manufacture, or composition of matter.” The whole judicial exception concept is horrible jurisprudence #textualism

      OTOH, they would need to discuss/define the actual statutory terms (e.g., “process, art or method”).

      1. 10.2.1

        because should just be an example of something that is not a “process, machine, manufacture, or composition of matter.”

        NOT CORRECT – and bludgeons the use — by the Court — of the word “exception.’

        If you are outside of the statutory category, you would NOT be using the word “exception.”

        And yes, OC, what the Court did do was an abomination.

        Both in process, and in result (and hence, a perfect candidate for the Kavanaugh Scissors).

      2. 10.2.2

        The Bilski court specifically declined to define Abstract, other than knowing it when they see it.

        Since every human activity can be characterized as a “process”, there is a wee problem with that statutory category.

        “Processes” that occur within a human mind should be far beyond the reach of any law.


          link to patentlyo.com

          Occurring “within a human mind” – IF your claimed process is entirely within the human mind, that you do not reach the patent sense of utility.

          IF the “useful result of is NOT something that is evaluated “within a human mind” – NO MATTER THE CATEGORY, then the antecedent item will not reach the patent sense of utility.

          This is why your mantra simply does not succeed.

          By the way, claiming a process and claiming a result are in fact two different things. Certainly, a process can lead to a result. But that is not the only category “that leads to.” Things, ‘lead to.’ ANY thing that does NOT ‘lead to’ cannot have the type of utility that is required in the terrain of patent law.

          On another thread, you had a quip of “sharper knife” – link to patentlyo.com

          My response never made it out of the filter. But here is a recap as I recall: your quip does not work, because by sating “knife” you have – in the mind’s eye – given enough reference, and the view of what it may cut is simply not material to the point of patent utility. On the other hand, if you merely stated “sharper edge” you do NOT reach patent utility, as there are plenty of edges that if made sharper would be definite detriments (and again, regardless of what may be cut).

          I am not the one that is confused as you assert with:
          You are confusing the vehicle of a symbol (the physical traffic light) with the interpretation of the symbol (stopping when you see the light) and the reference of the symbol (everyone knowing that you stop at a red light).

          The confusion is in you – and your attempt to move patent law from its terrain to some other place in which you would prefer to have different rules.

          Understanding and applying the concept of utility in the patent sense needs MORE THAN merely “a vehicle,” even though the ‘vehicle may be one OR MORE of the statutory categories. YOU are the one confused, because you would assert that “vehicle” alone suffices and it simply does not.

          In the past I have also instructed you to ask your own counsel – given that you simply do not want to listen to me. But if you want to try to educate yourself (if even only in the smallest sense), let me provide you a citation of sorts: read chapter 3 of Adelman, Rader (yes, Judge Rader), and Thomas’s book: Cases and Materials on Patent Law

          It will not inform you to the level of a trained patent attorney, but at least you won’t be chasing your windmills over all creation.


            Tell me more:

            In Diamond v. Diehr (1981), the court (quoting Cochrane v. Deener [1877]) wrote “That a process may be patentable, irrespective of the particular form of the instrumentalities used, cannot be disputed. . . . A process is a mode of treatment of certain materials to produce a given result”

            No result, no process. Duh.

            As to sharper knives?

            link to patents.justia.com

            The utility of a sharper knife is automatic- in all these granted patents, the reason why sharper knives are better is never disclosed in the spec or claims, nor need it be.

            Taking instruction from you is oxymoronic. Can’t be done.


              You entirely missed the point.

              Read what I actually wrote, not what you may be wanting to see through the prism of your windmill chase.


              A process is a mode of treatment of certain materials to produce a given result”

              this doubly works against your mantra.

              A mode of treatment is just that: the mode.
              It is NOT the result that “OF the mode, which is a separate thing.

              Further, until you show that telepathic ability, your “ALL in the mind” is just not going to be a mode that does any type of producing.

              So – again – it is you that is entirely messed up with the vehicles, the interpretations of and the references of.

              AND as I noted – since you refuse to take instructions from me (even though you get it wrong and try to blame me), I did give you a reference.


                The result of a process is where the location of the utility of a process must be exclusively found. No useful result- no process under 101.

                It should be construed as a matter of law, just like the meanings of words in claims are.

                1. Your “logic” is not consistent.

                  You move the goalpost from the process itself to a “result of.”

                  You do this completely outside any legal notion.

                  You also appear to NOT WANT TO UNDERSTAND just how utility is actually considered under patent law — regardless of the particular statutory category (and if utility is instead a subset of ‘statutory category).


                  What the terrain is that you want to play on, it is not patent law terrain.


          >Since every human activity can be characterized as a “process”….“Processes” that occur within a human mind should be far beyond the reach of any law.

          If true, then complain to Congress. The courts should interpret the actual patent statute.

          As Roberts once claimed to believe, the role of a judge is to just call the balls and strikes.


            Since anything can be a process, we have a statutory ambiguity. That’s what courts exist to resolve. They have failed to resolve it, and so has Congress. That’s why we are having this discussion.

            If a process results in information only, and the utility of that information is realized via consumption by a human mind, it’s intrinsically abstract, and for 150 years, courts have agreed that abstractions can’t be processes. It would be nice if Congress revised the Patent Act, but that ain’t happening.


                Once again, tell me more…from Bilski

                The Court rejects this submission categorically, on the ground that Ҥ100(b) already explicitly
                defines the term ‘process.’” Ante, at 6. But §100(b) defines the term “process” by using the term “process,” as
                well as several other general terms. This is not a case,
                then, in which we must either “follow” a definition, ante, at
                7, or rely on neighboring words to understand the scope of
                an ambiguous term. The definition itself contains the very
                ambiguous term that we must define…

                1. Your pin cite does not suggest what you want it to suggest.

                  In the MAJORITY position at B I page 7:

                  Respondent urges the Court to look to the other patentable categories in §101— machines, manufactures, and compositions of matter—to confine the meaning of “process” to a machine or transformation, under the doctrine of noscitur a sociis. Under this canon, “an ambiguous term may be given more precise content by the neighboring words with which it is associated.” United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 12) (internal quotation marks omitted). This canon is inapplicable here, for §100(b) already explicitly defines the term “process.” See Burgess v. United States, 553 U. S. 124, 130 (2008) (“When a statute includes an explicit definition, we must follow that definition” (internal quotation marks omitted)).

                  The Court of Appeals incorrectly concluded that this Court has endorsed the machine-or-transformation test as the exclusive test…

                  This is nothing more than the DESCTRUCTION of the CAFC en banc position.

                  Stevens – in concurrence (and thus merely dicta and not a holding) states (first at page 11):

                  The text of the Patent Act does not on its face give much guidance about what constitutes a patentable process. The statute defines the term “process” as a “process, art or method [that] includes a new use of a known process, machine, manufacture, composition of matter, or material.” §100(b). But, this definition is not especially helpful, given that it also uses the term “process” and is therefore somewhat circular.

                  and then at page 12 (your partial cite):

                  Specifically, the Government submits, we may infer “that the term ‘process’ is limited to technological and industrial methods.” Ibid. The Court rejects this submission categorically, on the ground that “§100(b) already explicitly defines the term ‘process.’” Ante, at 6. But §100(b) defines the term “process” by using the term “process,” as well as several other general terms. This is not a case, then, in which we must either “follow” a definition, ante, at 7, or rely on neighboring words to understand the scope of an ambiguous term. The definition itself contains the very ambiguous term that we must define.

                  In my view…

                  Stevens is WRONG. I have already explained to you that the Act of 1952 used the word process in two manners, with the second one being the traditional term of art – there is NOTHING ambiguous here, and it is merely Stevens LACK of patent law understanding (and his own desire to legislate from the bench – veritably, the reason WHY he was writing ‘in concurrence’ while that concurrence sounds like a dissent, and WHY he lost his position to write the majority view of that decision.

                  If you are going to bank on Stevens, you are definitely lost.

                2. Wow – you do understand how the structure of case law works, right?

                  Are you familiar with such words as “holding,” and “dicta?”

                  As I have recommended to you – these are things that you can verify through your own counsel. That way, you can take your snide comment and see the ‘worth’ therein.


              There you go again with that “results in” stuff.

              A mode is not the results of “results in.”

              Other categories have “results in.”

              It is necessary that the aspects of the (various) “results in” ARE determined in the human mind in order to reach the patent sense of utility.


                Sure play your goalpost moving games. Steven’s dicta weighs ten thousand times your personal opinion. The holding in Bilski did not define or disambiguate process’; it merely rejected the MoT test as the sole determinant of an eligible process.

                The ambiguity of the term remains, and there is no holding otherwise. Wouldn’t matter anyways because you never cite cases- the only authority you respect is your own jabbering.

                1. LOL – except not – in multiple ways.

                  One, I moved no goalposts.

                  Two, Stevens LOST his position as majority decision writer, and that makes his dicta especially suspect.

                  Three, as I have suggested, you should check with your own counsel on the difference between holding and dicta.

                  Four, the phrase that you did not include and that I provided from the majority position flatly rejects the dicta of Stevens, so no, this is NOT just an “anon says,” this is a majority of Supreme Court Justices rejecting Stevens’ view.

                  Pull your head out and stop reacting emotionally to “anon says” and try to understand WHAT “anon says.” You are clearly wrong on this point – and have now doubled down with false accusations given that I have taken your own provided case and shown you the proper and more full understanding of that case.

                2. I do wonder if you actually read the rub bish you post…the Bilski holding was specific to the MoT and says nothing of the ambiguity of “process”…and Stevens didn’t “lose” anything…he concurred & he never had any particular birthright to author the opinion anyway.

                  It’s a policy problem & your pointless condescension about your not especially learned little formalism means nothing to me, nor anyone else on this board that I can see…

                3. You need to get out of your own way Marty – as your characterization of ‘ru bb ish’ is objectively false and driven only by your desired world view.

                  The majority in the case that you advanced your Stevens’ point of dicta flatly rejected that dicta.

                  As to Stevens’ original position in the case, I will dismiss your own uniformed rambling and lack of understanding of case law, history of case law at the Supreme Court, and the fact that my view is indeed confirmed with an inside source at the Supreme Court. No one asserted a “natural birthright” but such need not be there for my position to hold.

                  One only has to look at the writing style, format, set-up of principles, and overall content, notice that this WAS his swan song case, note the symmetry with his FIRST case, and simply recognize that Stevens had attempted to push too far and violate actual words of Congress in his anti-business method push.

                  My “condescension” is anything but pointless – it is a well deserved rebuke of your own unwillingness to recognize the terrain upon which you would choose to do battle. If anything, you deserve far more than mere condescension, and your nonsense should be universally panned at precisely the points on utility that you remain in the weeds on, as well as your desire to NOT treat one statutory category as an equal to the other statutory categories.

                  What I have provided is NOT “formalism,” and the fact that you would try to characterize it as such only shows your own level of ig n0r ance. That it also may “mean nothing to you” or to those that you may choose to see ALSO has no bearing on what the LAW actually is.

                  Of course, you may freely choose to remain in your bubble, and only allow in those views that you find agreeable. The consequence of this choice though is NOT up to you.

    3. 10.3

      Abstract was supposed to mean in patent law exactly like it meant in English. That is something that was not concrete or vague. An object of the mind such as a general principle.

      An example is build a machine with fewer parts that operates faster. This is abstract as it doesn’t tell you how to accomplish and a person of ordinary skill in the art would not know how to do this.

      Notice the perversion of the word by the CAFC and Scotus where they have taken part of the meaning of not expressing telling someone how to build the machine and removed the person of ordinary skill. So a claim like Alice is not abstract by conventional definitions as a person of ordinary skill could build the machine.

      Anyway….deaf ears and all.

      1. 10.3.1

        I think that you misapply this in a subtle but important way:

        Claims need not tell you “how to accomplish.”

        Such is purely made-up (and poorly scrivened) legislating from the Bench.


          … I should be more clear: the “misapplication” is what the Court had attempted. I take your comment as being more ‘descriptive’ of that action.


          Actually anon, I think that what I said is exactly what they did with the word abstract.

          I just wish I could find the reference. I am sure there is someplace in very early patent law from England a discussion of the word “abstract” in relation to patents.

          What abstract used to mean was about 112. There is simply no need for the word abstract in how it used to mean prior to Alice. The Scotus recognized this and used it like the rule of reason.


            Night it appears there was always a consensus that ideas were not proper subjects for patenting- that there had to be an invention of some kind built from the idea.

            Again you just make my point: abstraction intrinsic to an invention is a different animal than abstraction in claims. The latter is a 112 issue. The former is a policy issue- unresolved as of now.


              You have only doubled down on an undefined term and now want to use that term in two different manners.

              That you do so from a lack of understanding of the terrain of patent law only makes your windmill chase all the more evident.

      2. 10.3.2

        Exactly. Most claims rejected under 101 as abstract should be rejected under 112(b) as abstract with the same result.


          How could that be done without violating the sacred mantra that “breadth is not indefiniteness”?


            Outcome-drive arguments will always claim violation of some sacred mantra, but whining about breadth vs. indefiniteness will be more manageable than the “anything under the sun” whining.


              LOL – so you think that the maxim that breadth is not indefiniteness is whining?

              Do you have a case cite for that, or is this just you ‘whining’ about how you want the law to be?


              But this approach seems like it really would conflict with “breadth is not indefiniteness.” I’m not asking how to counter whining, I’m asking what is the good faith response to the good faith argument (as rare as such discourse may be).


                Thanks for your good faith argument. My point is that the concept of “abstract” with respect to definiteness is easier to understand and harder to intentionally misunderstand. That being said, abstract is still contextual. My instinct is that claims drawn to information processing must be sufficiently definite that alternate ways of achieving the objective must be cognizable. Otherwise, the claim should be considered drawn to the objective itself and thus indefinite.

                NOTE: The reason I am singling out information processing claims from other methods (assuming that they are methods) is that information processing is incapable of producing something that is patentable subject matter. To be clear, I understand that a new method of producing an old tangible product is patentable, but the product of this new method would still be patentable subject matter even it isn’t patentable for other reasons.

                1. is incapable of producing something that is patentable subject matter

                  Is itself clearly nowhere near being “good faith.”


            What is always missing from these arguments is facts. What set of claims is too broad or abstract?

            Every claim I have seen being invalidated defined a set of solutions that was clearly understood by one skilled in the art.

  3. 9

    For me, the weakness of the Petition is to be seen in the passage that discusses the Cardionet case, in which the claim at issue was to:

    “…a specific means or method that
    improves” cardiac monitoring technology…”

    The Petition seeks to hitch a ride on Cardionet, asserting that the claims of the 107 patent are “not unlike” the Cardionet claims, and that:

    “Similarly, the specification of
    the ‘107 patent are more akin to a technological
    improvement, an unconventional network computer
    implemented social network that facilitates people
    with life issues, by for example making relocation a
    success. ”

    No reasoning. Just pure assertion. “Not unlike”? “Similar”? “more akin”? “Technological improvement”? Both cases are in the field of “life issues”?

    Do they seriously expect to be taken seriously? Really? How does a Petition such as this achieve anything else but set back the drive towards reform of 35 USC 101?

    1. 9.1

      This essentially reads like every generic 101 response, where you say the word “specific” a lot of times and then just repeat the claims with the action words italicized.

      “Rather than reciting an abstract idea, the claims are directed toward a specific method of achieving a specific result, and in particularly toward recieving, at a computer, data; processing, with the computer, the data, etc. etc.”.

      1. 9.1.1

        “where you say the word “specific” a lot of times and then just repeat the claims with the action words italicized”

        To be fair, initial drafts of the Iancu test identified such italicization as integrating an abstract idea into a practical application.

  4. 8

    Information processing is a physical process that takes time, energy, and space.

    Full stop.

    1. 8.1

      So to analogize the Scotus current jurisprudence to a process they recognize as physical their current jurisprudence for information processing is like saying a step of adding .001 zinc is abstract. Merely including a step of adding the abstract concept of zinc cannot save this method from being abstract.

      Merely reciting a generic oven does not add anything to this method.

      1. 8.1.1

        And for the science challenged, no zinc is not abstract–but guess what? When a method recites performing information processing that is also not abstract. It takes time, energy, and space to represent and process the information.

        But then that is just reality and we all know that has little to do with the modern world.

    2. 8.2

      What does this have to do with patentable subject matter? When did “time, energy, and space” become the standard?


            That means you can’t think? I agree.

            Anyone that knows the first thing about patent law immediately knows the implication of saying that information processing is a physical process.


            Plus NS II you are so full of s hite.

            I have explained this to you and many others on this blog numerous times in great detail and how it affects the main cases. You are playing the amnesia game where you just wipe the slate blank with each new post hoping to tire us out answering the same questions over and over again.

            Tro ll b oy–go back and read.


              “You are playing the amnesia game where you just wipe the slate blank with each new post hoping to tire us out”

              Excellent example of irony. Well done!!

              You keep posting your “time, energy, space” argument, and it still isn’t the test for patentable subject matter. Maybe it will work next time. Keep trying.

                1. Plus, I will add one way.

                  When viewed properly then information processing is a transformation in the eligibility sense.

                  So, adding a series of numbers is a transformation that has provable bounds on how much space, time, and energy is required to perform the transformation of a set of number to a number representing the sum of all the numbers in the set.

                  NS II you are such a l iar. Disgusting that you get on here li e.


              If someone cared about transmission of information rather than displays of volume, they’d presumably bookmark those posts where they explained their position, and then link to those posts when queried.


                Or not.

                Ben, do you realize how often the “Br’er Rabbit” game has been played?

                Do you realize that I did that very thing that you suggest to Malcolm’s game playing and he STILL played his game.

                Wake up son.

                The FAR BETTER thing to do was the suggestion that I gave to Prof. Crouch years and years ago (in one of those fits of “let’s get along): give the game player a chance to play fairly. If they continued their game playing, band them until they legitimately treat counterpoints presented.


                You are such a tr oll Ben. And transparent.

                If you really cared, then take a position on the issue. Have I been through this before over and over again on this blog?

                You tro ll. You spend endless hours on this blog and must be able to take a position as to the veracity of NS II position.

                You are such a w orm.

                1. My position is that your declarations that you’ve already explained assertions and provided evidence are incredibly unhelpful. I’m just saying that on the off chance you ever deign to provide evidence for an assertion again, it’d be helpful for you to bookmark it. Using that for a response would be both more effective and less time consuming than a post like the screeching of Do it for us, do it for yourself.

                  Or don’t, because there never was any evidence and the argument is better hidden out of sight.

                2. Ben,

                  Your suggestion simply will not work with those that refuse to engage in an inte11ectually honest manner.

                  I ran roughshod over Malcolm with such direct hyperlinks, and heck, even reprinted whole the position, and he simply pretended nothing at all was ever explained.

                  Br’er Rabbiting was just a game (force repetition after repetition and then seize on any error no matter how small – if no error, then pretend what is presented was never presented and play again)

                3. anon, I think Ben knows that.

                  Ben simply did not address my direct point or at least not honestly.

                  He surely remembers me going over the why before.

                4. Besides the fact that it is self efficient that if information processing is properly seen as a physical process that the “process” is a transformation.

                  Additionally, when seen as a physical process the question of 112/abstract melt away as the claims either are enabled for a machine to perform the transformation or not.

                  They ignore this anon.

                5. preaching to the choir here, Night Writer.

                  My longest standing ‘beef’ on these boards is that the people that I engage refuse to ACTUALLY engage on the points provided.

                  Malcolm Mooney of course was one of the worst. But there is no shortage of those who do NOT engage – and choose to employ this tactic to avoid the points presented (and then some also effect ‘cover stories’ based on (gasp) rudeness or some other false umbrage).

                  Long ago I had suggested a suitable control mechanism that would move conversations forward, and that dealt directly with the propaganda spewing without regard to counter points that generate the baseless activity that you see here in regards to your scientific observation on the reality of information processing. While what you point out is very high brow, it is NOT a coincidence that it is the SAME people that would seek to denigrate your position – without actually engaging that position.

                6. please pardon potential (re)peat (hitting count filter or George Carlin filter)…

                  preaching to the choir here, Night Writer.

                  My longest standing ‘beef’ on these boards is that the people that I engage refuse to ACTUALLY engage on the points provided.

                  Malcolm Mooney of course was one of the worst. But there is no shortage of those who do NOT engage – and choose to employ this tactic to avoid the points presented (and then some also effect ‘cover stories’ based on (gasp) ru de ness or some other fa1se umbrage).

                  Long ago I had suggested a suitable control mechanism that would move conversations forward, and that dealt directly with the pr0p aganda spew1ng without regard to counter points that generate the baseless activity that you see here in regards to your scientific observation on the reality of information processing. While what you point out is very high brow, it is NOT a coincidence that it is the SAME people that would seek to den1grate your position – without actually engaging that position.

    3. 8.3

      To close the loop on this, if you are claiming that your “time, energy and space” argument has been successfully applied, please provide a citation. Otherwise, I understand that you are merely expressing your view on what the law should be. Full Stop.

      1. 8.3.1

        Are you going to pretend (still) that you do not understand the point (even IF it is but how he feels the law should be), or are you going to actually engage the conversation on that point?

      2. 8.3.2

        NS II: So you change the goal posts and won’t admit that you know my arguments have been presented before and implicitly admit that you have played the amnesia game.

        Then you build a strawman and change what I said.

        Read what I wrote. My argument is that the science is that information processing takes time, energy, and space. The science is wrong at the Scotus and the CAFC.

        I’ve gone through this with you about 10 times NS II.

        You are intentionally just wasting my time.


          I finally understand your logical error. For some reason you think that “science” defines the scope of patentable subject matter. That is so absurd, it never occurred to me that your assertion was part of an argument.

          You are wasting everyone’s time including your own.


            LOL – Because things like science, math and facts are simply “wasting everyone’s time.”

            And you want to accuse Night Writer of a “logical error?”

            Do you even bother to stop and think about what you say, NS II?

  5. 7

    All of the 101 in regards to information processing is brain dead.

    Information processing is a physical process that takes time, space, and energy.

    It is not as contended by the judges like Dyke and Stevens something that is performed in the spirit world.

  6. 6

    Is not the answer something like: it all depends.

    My viewpoint is in Europe, where “abstract” seems ill-adapted to distinguish eligible from ineligible matter. You see, I have no idea what “abstract” means.

    But also, for me, it depends on what sort of “human activity”. Suppose it is the flow of individuals in crowds and how to manage that flow to minimise the risk of injury to individuals when, for example, red lights flash and everybody is ordered to vacate the building. To me, that seems anything but “abstract”.

    Then there is the notion of “rating”. What sort of “rating” would that be? Suppose the invention rates an individual metabolism for suitability for each of a range of different available oncology regimes, whereby the one optimal for that particular individual is flagged up. That invention strikes me as eligible.

    Whereas a “rating” system running on a dating app, for “rating” various candidates for their dating potential, strikes me as amounting to “nothing more” than human activity and therefore ineligible.

    1. 6.1

      There is human activity in both of your examples – and as listed, each of them are “nothing more.”

      You seem to be adding “something more” TO the human activity.

      Perhaps you would like to amend your oncology example to include a positively recited step of “applying” the rated regime (but you would then step into our Supreme Court thicket of “just apply it“).

      The one has a ‘veneer’ of medical, so you want to see it as something more than what it is. The other has a ‘veneer’ of ‘meh, superficiality,’ so you want to see it as not ‘enough.’ But what if there is a scientific study establishing a real link between health and life expectancy and that “right dating” thing? Does it then ‘move the needle’ for you?

      1. 6.1.1

        All fair questions, anon. What drives my formulation of hypotheticals is the notion that what is eligible should be confined to subject matter that is plausibly a technical solution to a technical problem. If you can write a patent application which makes it plausible that the rating/dating claim solves a problem in technology then, for me, you are well on the way to rendering that claim eligible.

        Managing the flow of live animals in a meat factory in a way that preserves calm strikes me as a problem in technology. Ergo, managing the flow of people in a burning theatre. But for me (of course) it all depends on the claim, and the supporting disclosure of specific problem addressed, and specific solution claimed.


          Ah, are we thus back at the old saw of “define technical?”

          Is this where we (again) hear the unsatisfying “we don’t define because of the onrush of new innovation?”

          Or is this (again) where we treated to circular definitions?

          Perhaps some ‘specificity’ is in order…


            The proof of the pudding is in the eating. At the EPO, 40 years, and counting. The litmus test “abstract” doesn’t work but if instead for eligibility you use GATT-TRIPS “technical”, it does.

            Whatever definition you nominate, there will inevitably be cases on the edge of eligibility. there’s no getting away from that.

            But good so, for arguing these cases is what brings increasing legal certainty, what is eligible and what is not.

    2. 6.2

      [A] “rating” system running on a dating app, for “rating” various candidates for their dating potential, strikes me as amounting to “nothing more” than human activity and therefore ineligible.

      I am with you that such a claim is likely unpatentable, but I am less clear why one might want to use subject matter ineligibility as the mechanism to exclude this invention. The hypo you give looks more to me like an inventive step failure (arbitrary alteration to the prior art that achieves no unexpected technical effect) than a subject matter eligibility failure. That is to say, if the dating rating scheme really does achieve an unexpected technical effect, then society should want that invention to be patentable—not categorically excluded from patentability.

      1. 6.2.1

        Greg, what would you like me to write in reply? The EPO filters out with its inventive step filter much subject matter that the courts in England and the USA filter out using the respective eligibility provision. The EPO criticises England for muddying the consideration of eligibility with considerations of the prior art while the judges in England disparage the EPO approach as “intellectually dishonest”. I think the argument between the two approaches can expose the flaws in both approaches but, for me, the clincher is that eligibility ought to be judged independent of the prior art as it is on the date of the claim.

        Hundreds of years ago, a leading English judge propounded the idea that, in jurisprudence, legal certainty is to be striven for, whereby choosing a Rule that is commonsense, clear and definite outweighs considerations whether that Rule is perfectly fair in every case. Some loss of fairness is a sacrifice worth making, if it delivers the greater good, of legal certainty. Lord Mansfield, I think it was.

  7. 5

    Is it hot or not? My per se test:

    Is it a method? Yes

    Is the useful result of the method information only? Yes

    Does the utility of the information arise from consumption by a human being? Yes


      1. 5.1.1

        Society gains clarity on which information inventions will and will not be eligible for patents. It gains clarity on diagnostic methods. It resolves a great deal of the random, unjust “know it when they see it” jurisprudence that both patentees and accused infringers currently suffer. It provides a liberty interest in factual discoveries but protects investments in robotics, AI, and other future technologies where non-human use of information provides utility for human needs.

        Night, lets try your computer example.

        Is it a method? No.


        Boy, that took a lot of time. Computers are vehicles, not results. New and improved vehicles should be eligible. If you have a language processing algorithm that operates without regard to the meaning of the language processed, and outputs to a processor, that method should be eligible.

        f you have a software program that spits out verdicts so that people can order their affairs, it should not be eligible, not is it an improved vehicle.

        The utility is in the meaning of the verdict, and no matter how new, useful and non-obvious the method used to process information arrive at that verdict, there is no improvement to the vehicle- only to the meaning conveyed by the verdict, and meanings should not be protected by patents.

    1. 5.2

      And thus, patents on processes performed by smoke detectors, intrusion detection systems, and thermometers were invalidated as abstract.

    2. 5.3

      I like the absurdity of the implication that the result of the method is merely “information.”

      Martin you are paid to process information. The outcome of your life that you have been paid for is information.

      The justices and the judges are all paid for information processing and, under their current laws, a program that performed their jobs would be ineligible.

      How can it be that a computer performing a physical process that does the same thing that a highly-paid professional human performs can be ineligible?

      1. 5.3.2

        This particular point is nonsense. Whether something has monetary or economic value has absolutely no baring on whether it should be patent eligible. Patents are not tools merely used for rent seeking.

        Now, we could have and do have an interesting debate whether granting patents on information processing promotes the useful arts. I would argue that business opportunity, not patents, are the main driver of a majority of information processing and that a reward of a patent is not necessary or, in a lot of cases just, to protect the investment in information processing enough to be a true driver of the field. You have the opposite opinion. But nothing in there talks about deserving a patent just because something is valuable or makes money.


          Ordinary, no. What has bearing is the computer is doing what people do–information processing.

          And the information processing is useful.


            Ah, yes, in the olden days, we would have Malcolm popping up at this point and in rebuttal, I would be able to trot out one of my favorite words: anthropomorphication.

            It’s been awhile since I have had occasion to use that word – and it clearly fits here in which your point is that a machine — unambiguously within the statutory categories – has a utility that appears to be ‘too human,’ and the Luddites react in shear panic.

    3. 5.4

      useful result of

      ==> down the same path of terrain as has been previously pointed out.

      Utility and “useful result of” is ONLY viewed in relation to “consumption” by a human being. Such is the only measurement of ‘utility’ in the patent sense. If you don’t have that, you do not pass the patent requirement of utility.

  8. 4

    >per se unpatentable

    I doubt you’d get more than 1 vote (Thomas) for any per se rule on any issue. It’s all balancing tests nowadays.

  9. 3

    As an ex-practicing engineer, its a bit annoying and upsetting to see the disparagement of innovations that run on “generic computer systems.” Back in the day, when we wrote code, it was often machine-specific because there weren’t great compilers to translate your “method” into a different format. So whatever we wrote for one microprocessor (6502) didn’t work on another (Z80). The notion of portability, to write code in a higher level language (C) so that it could be ported and run on ANY computing machine was kinda the hallmark of a great piece of work. Now we have technology-arrested judges – brainwashed and motivated by poor SCOTUS reasoning – killing anything SW patent related, on the primary basis that “hey… it just RUNS ON ANY GENERIC COMPUTER so it cant’t be patentable.” Never mind, too, that § 100 SPECIFICALLY declares “…. a new use of a known process, machine” as eligible. From both a technical and legal perspective, the bulk of the current § 100 jurisprudence is entirely unsupportable, incorrect, and depressingly bad.

    1. 3.1

      From both a technical and legal perspective, the bulk of the current § 10[1] jurisprudence is entirely unsupportable, incorrect, and depressingly bad.

      Yep, pretty much…

    2. 3.2

      I’m not sure I understand how your opening statement leads to your conclusion. The development of what we could call “general purpose computing” is certainly a technological achievement, it is not related to a lot of the patent applications at issue. If application actually claimed any sort of technical features, then fine. For examples, a lot of the patents surrounding MPEG-4 are software based. However, we could get into a philosophical debate on whether, now you have a general purpose data processing machine, processing specific data is actually a new use for that machine, especially if processed by already existing capabilities of that machine.

      1. 3.2.1

        Three resistors.

        They have ALL of their “existing capabilities” extant.

        First configuration – in series.

        Second configuration – in parallel.

        Is the second NOT a new use?

  10. 2

    Per se unpatentable? I guess the discussion of eligibility has devolved to its “logical” endpoint.

  11. 1

    Read the Petition
    Not much to it. There have been far better petitions denied already, and there is nothing there that leads me to believe that such a denial is already in the cards for this one.

    Is the addition of a network computer implemented social network, with a novel and unconventional rating system, to a method of organizing human activity per se unpatentable as directed to an abstract idea?
    This repeats Question 1 that was presented and I doubt SCOTUS is going to bite on that. Personally, I wouldn’t have led with that question.

    The better argument — one pretty much ignored in the Federal Circuit decision and given little attention in the Petition — involves the 12b6 issue. 12b6 is about failure to state a claim — not the evaluation of an affirmative defense for which plaintiff has no opportunity to present evidence. Moreover, when the plaintiff did make factual allegations that supported their position, the Federal Circuit ignored them — contrary to Berkheimer and Aatrix (and 12b6 case law). I’m still amazed that the Federal Circuit gets away with transforming 12b6 into something it was never meant to be.

    Looking at the claims, maybe with some slight modifications (or perhaps even as is) this claim could pass under the USPTO’s 2019 Patent Eligibility Guidelines. However, it is a close call. There is certainly more there than applying a computer implemented social network to a a method or organizing human activity. I would have phrased it much differently, but in the end, I don’t think it matters.

    I know an attorney has to act in the best interests of his/her client. However, in the best interests of patent law, I believe this petition should not be granted.

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