Supreme Court offers Hope on Eligibility Case

by Dennis Crouch

American Axle & Manufacturing, Inc.,  v. Neapco Holdings LLC (Supreme Court 2021)

The Supreme Court today called for the views of the Solicitor General (CVSG) in this important patent eligibility case. “The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States.”

In a pair of briefs filed in 2019, then Solicitor General Noel Francisco argued that the Court should hear a new eligibility case to clarify its precedent: “the Court’s recent decisions have fostered uncertainty concerning those substantive Section 101 standards.”

These briefs were filed during the Trump Administration and involved substantial cooperation between the SG’s office and the USPTO.  The burning question is whether the Biden Administration will see the issues in the same way.

Federal Circuit Narrows Application of Hooke’s Law, but Still Wields the Ineligibility Hammer

74 thoughts on “Supreme Court offers Hope on Eligibility Case

  1. 6

    I still think this is a bad case to go up to the Scotus as it was really based on the EPO file wrapper and the arguments made at the EPO.

    I guess it is a good case in the sense that it illustrates judges using 101 to invalidate claims based on 101 rather than 112 or 103.

    Still, the application isn’t the greatest one to support the claims and there are a lot of weaknesses in the patent holders camp that wouldn’t be there for some other cases like the MRI case.

    1. 6.1

      I think you’re right here. If I was on the side of easy patents, I’d be worried about SCOTUS reviewing this patent.

    2. 6.2

      Bad case or good case? If it is a “good case” for exploration of the mischief of using 101 to avoid having to address 112, 102, 103, what more could anybody want?

      What other 101 mischiefs do you want SCOTUS to address, for which this case is not well-suited?

      1. 6.2.1

        I think my point is clear Maxdrei.

        1. 6.2.1.1

          OK. I guess you have in mind a case where it is more clear that justice demands that the patent be upheld rather than struck down.

          But why? To increase the chances that the Supreme Ct will feel duty-bound to accept it? Seems to me to be somewhat of a forlorn hope, that such a consideration would weigh in the balance.

          1. 6.2.1.1.1

            Why? I think Ben below gives a good answer.

      2. 6.2.2

        “what more could anybody want?”

        One could want the underlying patent to really teach what it claims. When that’s not true it increases the chance that SCOTUS gets a funny idea about how to deal with the case.

        1. 6.2.2.1

          I’d add too that the last time I looked this application was rejected by the EPO and it seems unseemly for the Scotus to be reversing when the EPO is rejecting an application.

          Plus I did a deep dive on this like a year ago and this thing is a mess for 112 reasons as well as 103 reasons.

          Plus it has the eerier feeling that it might be a reversal of Diehr.

          I don’t know. I agree with Ben that the Scotus might do something funny here as the underlying patent application and the allowed claims aren’t really all that clean.

  2. 5

    “The burning question is whether the Biden Administration will see the issues in the same way.”

    The suspense is terrible! I hope it’ll last!

    1. 5.1

      Spoken like a true government employee.

    2. 5.2

      Biden is the “nothing will fundamentally change” guy. Guess what? Nothing will fundamentally change.

      In any event, anon, AAA, we were discussing on another thread about various leftist policies and CRT things etc. You suggested to avoid the wall of text, and yes indeed I know to, but I get quite carried away on the topic and there is so much to fit into any particular thought. That’s true even on a sentence by sentence basis. I do get the ol’ leftist brain diatribe phenom going on, I will try to control it a bit.

      In any event anon, I would ask you for comment on the video I will post in the next post down below. I would ask AAA as well in fact, but mostly I’m looking for the liberalish position here, NWPA could likely give such as well. The lady (crenshaw, who created the CRT iirc) in the vid states that she thinks that the law/courts stand(s) in the way of implementing most of her desired reforms. Specifically, the rights of white people etc. apparently stand in her way, around 28:00+ (especially at 29:00+). So, what is your response to that overall theme, are white people’s rights standing in the way of leftist, necessary reforms? And does the USSC play an integral role in impossing structural racism (see 32:00+)? And furthermore, along the overall themes, do you not agree that you need to pay reparations? Further when the talk about getting rid of the “plantations” (institutions etc.) and replacing them, do you agree (see 36:00ish)? NWPA, anon?

      Further, do you agree with their idea about essentially “going around” banks to get money to black people (see 38:00)? I guess here they’re basically arguing getting rid of/at least avoiding the federal reserve. Thoughts? Would the banksters squash them like they squash everyone else that messes w/ money and banking issues?

      The thread. I went ahead and responded to AAA there. I will be holding out for a general answer on that AAA for quite awhile even if I have to repeat it and disrupt 100+ threads.

      link to patentlyo.com

        1. 5.2.1.1

          I feel like all of this is too far out of scope of this blog.

          It does intersect a legal blog, though, in that CRT would dissolve the legal progress and go from laws to emotions and historical fairness, which is antithetical to all of western civilization and, in fact, civilizations in the ideal in Asia as well.

          CRT is a form of madness that has gripped the nation like the be h e a dings in France during the revolution or the purge of protestants and witches in Europe.

          Key to all of this is that black and white brains are the same and both are capable of racism.

          Always fear people that try to put emotions off to another group to appease their own conscious. CRT and intersectionality is an ideology that will only stand in a totalitarian government.

          If you want to spot a neo-Marxist, ask them about China’s policy of tracking every human within their country and ranking them by how good a citizen they are. Their rights are then given to them in accordance with their score of how good a citizen they are.

          You may be shocked to find out that people that ascribe to CRT and intersectionality think what the Chinese are doing is a good idea. They are neo-Marxists that should be feared.

      1. 5.2.2

        6,

        Since you recognize my prior comment, and ask for my personal opinion, I did try to get through the video you linked to.

        I could not.

        The first four minutes is such nauseating pablum of PC virtue signaling that I had to stop. There was simply no way that I can stomach more than an hour of such tripe.

        I tried to just listen to the other snippets at the time frames you pointed out, but I hesitate to make a pronouncement, as there MUST be other context to support what — at those points — is merely propaganda stated as facts. I can “listen” to a side espouse their view points, but I refuse to accept as facts things that clearly are not so.

        Understanding the larger picture — including the notions of Neo-Liberalism and identity politics – the material you provided is some of the worst Racy ISM that I have ever heard — easily rivaling the stuff of skin heads and WWII propaganda.

        The adage that I would provide: it is good to have an open mind – but not so open that your brain falls out.

        1. 5.2.2.1

          The thing that is amazing about all this is that the representation of African Americans has doubled in the last 20 years at the national level and, yet, these people are acting like no progress has been made or that it is the 1950s.

          It is incredible. What they are trying to do is displace people like me who are liberal Ds and claim no progress has been made and then grab the credit for 50 years of amazing progress.

        2. 5.2.2.2

          Frankly, if you search around and read and listen, you will find that intellectuals say this is neo-Marxism and that you better be very, very afraid.

          The normal defenses against this type of totalitarianism have failed due to “white guilt” and clever marketing and frankly extreme v i o lence on the part of these neo-Marxists. These are highly dangerous people.

          1. 5.2.2.2.1

            “The normal defenses against this type of totalitarianism have failed”

            That is correct NWPA. That’s why we welcome you on the far right for a time.

            “The thing that is amazing about all this is that the representation of African Americans has doubled in the last 20 years at the national level and, yet, these people are acting like no progress has been made or that it is the 1950s.”

            Brosef, they are wanting people that are, in their eyes, more authentic reps of the black communities than the people with black skin color who live in lilly white neighborhoods and are corporatists which you are counting in your 20% nums. And they want a power structure where that 20% is not marginal, and will instead have the POWER to achieve revolutionary action they see as necessary.

            “It is incredible. What they are trying to do is displace people like me who are liberal Ds and claim no progress has been made and then grab the credit for 50 years of amazing progress.”

            Correct. But to be fair, you should have seen that coming, having made a deal with them there leftists for the last 50+ years in order to achieve your goals. Deals with de vils, as it were, seldom work out well.

            1. 5.2.2.2.1.1

              Brosef, they are wanting people that are, in their eyes, more authentic reps

              link to youtube.com

              …”authentic…? Yeah – but according to WHOSE script?

              But to be fair, you should have seen that coming

              LOL – when Joe Rogan is painted as a Right winger, you KNOW that there is NO limit to the LEFT end of Left.

              1. 5.2.2.2.1.1.1

                “Yeah – but according to WHOSE script?”

                According to their script, and according to the script of all of the people who walk around considering some people more authentically black, or less authentically black, and who also want more of the more authentically black(ish) people in power.

                1. LOL – you DO see the problem with merely accepting the veracity of such, do you not?

                  Scoop up your brains from the sidewalk, put them back into your head.

                2. “you DO see the problem with merely accepting the veracity of such, do you not?”

                  Obviously there are problems for people that are within, and/or are benefiting from the ebil white cis hetero etc. system which will be thrown down if this other representation and power are achieved.

                  “when Joe Rogan is painted as a Right winger, you KNOW that there is NO limit to the LEFT end of Left.”

                  Also technically true.

                3. There are “problems” for ANY people who still want to live under the Constitution, or the Rule of Law.

                4. “There are “problems” for ANY people who still want to live under the Constitution, or the Rule of Law.”

                  That’s true.

                  Though to be fair, the country as it currently exists is only marginally “under the constitution”, though the rule of law is somewhat halfway intact.

                5. Though to be fair

                  There is nothing fair in the agenda being advanced.

                  You cannot spin this to achieve anything other than what it is, 6.

                  And I certainly will not abide by any 1984 ISMs you may attempt.

        3. 5.2.2.3

          Anon, NWPA, I guess my original response got eaten and will not show up now. In any event, I appreciate you having taken the time to peruse it, and I’m sorry to hear that you’re too squimish to at least hear the leftists out on their own terms and about their own plans and their perspective. Ultimately anyone that fancies themselves part of the all but extinct kind of individual formerly known as “a liberal” will need to know what is happening, from all angles, in order to stand up and fight it, if such is going to happen.

          I’m also not sure how you jump into proclamations of “propaganda”. I mean, a lot of what they’re talking about seems just routine facts, acknowledged by everyone as far as I’m aware.

          Just to be clear, at 27 mins forward, they’re talking about historical factors having lead to the undervaluing of black people’s real estate/houses/buildings that they own etc. This is just a fact, so far as I’m aware, that reaches back 50+ years or so back into the times when there was explicit segregation, where black people would be forced to buy property over on the “bad side of town” where black people were already relegated to.

          Those properties often run down through the family, and generally tie the family tree somewhat to the area. As the area continues to remain blighted, or becomes more blighted etc, those property values stay low.

          Further, they are discussing the overall role of white people and others not wanting to buy such properties because they do not want to live in majority black areas, often, in their hypothesis, because of ra cism, and some factors which in their hypothesis flow from “white supremacy”, such as the overall elevated crime levels etc. of the areas.

          Then around 28:00 she notes that majorities of various citizenries have come together as political entities to try to do something about these issues over the last 50 years (I presume on mostly state/local level she means), but are often blocked from doing so because of the various rights of white people which would be impinged upon (via the law and legalities). So, along those lines, she states that the courts (the executors of the law/legal process usually) have played a role in maintaining the overall system of black property/housing/buildings valuations even when majorities of various political entities have tried to do something to help prop up those valuations etc. This having been done by repressing the “rights” of the political majority trying to do those things through democratic means, but where those things get blocked by white people’s legal rights. I’m not sure what all specifics she’s referring to here, but I presume she means various local/state laws that have been tried to overall systematically help the valuation of black people’s property/houses/buildings not be undervalued which were then struck down or prevented from going into effect by the courts as violating some individual white person’s legal rights (where the white person was likely in some manner getting dispossesed by the law being enacted in some manner). She mentions the overall creation of subburbs back in the day (a big topic in the anti rac ist literature). And she tells about the GI bill etc. as well. And she goes on to note that nowadays we presume that we can address these issues by things other than direct wealth transfer “policies” or intervening/disrupting in the repair or operation of the overall system, but instead by “fixing people” by addressing their choices or repairing their gendered relationships (aka marriage etc.). And she says that all of this happened because the USSC responded to MLK’s having said in a speech that black people are/were claiming they are owed a debt by saying that we do not have a debtor race (white people) and a race to whom a debt is owed (black people) but rather we have the “american race” (all the people in america).

          So after all of that do you not agree with her that black people are owed this debt mentioned by MLK? Where I presume ultimately she and MLK means the debt promised to black slaves by a military general William Sherman acting as a military governor of areas of the south just after the civil war just during/after emancipation was going through its long process (which he likely had no authority to promise, but anyway, the question remains, is there no such debt?). And do you not think that the legal side of the government, the USSC etc., has played a part in preventing reparations etc. from happening?

          link to legacy.npr.org.,Civil%20War%20ended%20in%201865.

          And just an fyi bros, along these lines, this stuff is def meaningful to patents. To be clear, even if the patent system should survive a woke mini-revolution more or less intact (doubtful), at the very least there would be some large property transfers I would think, even in the IP space.

          1. 5.2.2.3.1

            d I’m sorry to hear that you’re too squimish

            Squimish is NOT the word. I am WELL aware of what the Leftists think of their own position – quite in fact I know it better than most Leftists do – at a deeper level than they typically care to go.

            Low tolerance for absolute B$ is more like it.

            I’m also not sure how you jump into proclamations of “propaganda”.

            Well, clearly YOU do not know this stuff as well as you think that you do. And NO – the ‘routine facts’ are not such. Again – the adage of having a mind not so open that your brain falls out applies.

            And to your final point – NONE of this has even a tangential hold to the IP space as it is.

            None.

            Pursuing the patent path has ALWAYS been an optional path. Choosing not to pursue that path – for whatever reason is and remains a matter of choice.

            Take some PERSONAL responsibility for the choices made – it a completely fair statement to any and all.

            1. 5.2.2.3.1.1

              “lead to the undervaluing of black people’s real estate/houses/buildings that they own etc. ”

              So you do not believe that it is a fact that, historically, black people’s property/real estate/buildings have been undervalued as a factual matter? I mean, bro, it’s currently happening right at this very minute in my city, almost without doubt. Likely even by my own self if I flip open zillow.com real estate and look over some properties. You think that was less of a factor than it is currently back in the day, as a simple fact? You dispute this as a fact?

              “And to your final point – NONE of this has even a tangential hold to the IP space as it is.”

              Well, that is, “as it is”. This is upcoming developments bro. We revolvin’ up in this house in case you didn’t catch it on the news. The ebil white mane’s system is out, so yesterday. Get with the future my man. We must create an equitable patent system if the patent system is to remain at all. Personally I think a solid 20% ownership stake in any patent assigned to a ebil white mane, to be split up among black and/or brown people would go a long way. What do you think would be truly equitable tho? 20? 40? 50?

              1. 5.2.2.3.1.1.1

                Your first supposition is NOT to a position that I have taken – try to not set up a strawman to knock down.

                Your second supposition is a future projection – and thus, has NO factual basis for the discussion at hand.

                Your “get with it” is a mindless capitulation.

                If THAT is how you feel, please deposit yourself in a different country. I will fight for this one, thank you.

                What do you think would be truly equitable tho?

                I clearly do not accept the premise that ANY such “equitable” redistribution is either at hand, desirable, or in line with the actual precepts of this nation — and those NOTABLY of why we have a patent system in the first place (in a truly Lockean view, as per John Locke influence of the nature of the inchoate right that turns into a real legal property right).

                That you would phrase the discussion as you have shows that you are not being serious here. Flog yourself away, if that is what you want to do.

              2. 5.2.2.3.1.1.2

                “Your first supposition is NOT to a position that I have taken – try to not set up a strawman to knock down.”

                You stated, clearly, ” the ‘routine facts’ are not such”. The routine fact I proposed as being a routine fact above was “historical factors hav[e] lead to the undervaluing of black people’s real estate/houses/buildings that they own etc. “. Am I not understanding you correctly that you do not believe that this is a routine everyday ho hum fact?

                “Your “get with it” is a mindless capitulation.”

                Not at all, I didn’t capitulate, I’m promulgatin’! I stand as fer it. Although it might be capitulation for you.

                “I clearly do not accept the premise that ANY such “equitable” redistribution is either at hand, desirable,”

                That’s a shame. I’m sure someone will duly inform the authorities of this regrettable situation.

                “in line with the actual precepts of this nation”

                Obviously not. Those “precepts” are the ebil white man’s system (or part thereof rather) that is oppressing black and brown people bro, we must throw it down.

                “in a truly Lockean view, as per John Locke influence of the nature of the inchoate right that turns into a real legal property right”

                Bro Locke is an ebil dead white mail of “the worst” anglo kind. We obviously cannot have a system based on his influence stick around. And we surely cannot have inchoate rights inside of white mails minds etc turning into real legal property without equity being done by black and brown people that said white mail is actively oppressing, along with the systems that they have put in place to oppress as well. How would you propose that equity be done by them if not through ownership?

                “That you would phrase the discussion as you have shows that you are not being serious here. ”

                We’ll see just how big your Lockean penor is when the woke gestapo is on your front door or in your office my good sir. I’m taking the situation very very seriously. Perhaps too seriously.

                1. No, 6 – I did not say that.

                  Try again.

                  You want it? That’s even worse than capitulating.

                  The rest of your post is not even worth bothering with.

                2. “I did not say that.”

                  I’m asking you what you are actually trying to say.

                  “You want it? That’s even worse than capitulating.”

                  Well I mean you say that, but let’s play a game anon.

                  6: supports defunding police being tried in dem cities (so long as leftists demand such and liberals are too meek)
                  dem cities: try defunding police, fail, have shootings go up 2.5x and deaths doublish (in one city), cities reverse course, are grateful to their police anew

                  6: supports leftist equity based reallocation of IP ownership on newly issued IP (so long as leftists insist and liberals are too meek to stop them)
                  dems in federal gubmit: ??? (<what goes in this blank and what follows the gubmit's action taken here a few years later?)

                3. I’m asking you what you are actually trying to say.

                  No 6 — that is most definitely NOT what you were attempting to do and why I called out your B$ attempt at your Strawman to attribute a position to me that I did not advocate.

                  Further, I am not interested in any “game” that you may want to play as to picking a side here. I do not tolerate “cuteness” in the face of actual
                  E
                  V
                  I
                  L

                  And make no mistake – the agenda of the Liberal Left (Neo-Liberalism and the embrace of identity politics IS
                  E
                  V
                  I
                  L

                  Sure, I “get” a notion of “letting” a certain level of consequences fall on those already making choices — but I think that you may be giving that side far too much credit in thinking that they might learn from such consequences.

                  They will not.

                4. “but I think that you may be giving that side far too much credit in thinking that they might learn from such consequences.”

                  They won’t learn, tis true. But political backlash will still happen and that’s the prize.

                  In any event anon, you don’t even respond to most of the more juicy parts of the overall discussion and it seems to be related to, or outright because of, you leaning on this preoccupation you have with your indoctrination, or “definitely not an indoctrination” into your moral system of good/evil. How much time have you spent deciding on what makes a thing “evil”, philosophically as a moral decision, and how much reflection have you spent in inquiring into where your own beliefs near surely come from? I only question these things here because you seem to short circuit many rather involved questions by just referring to your own internal moral conceptions of good n evil.

                5. In any event anon, you don’t even respond to most of the more juicy parts of the overall discussion

                  Sorry 6, I cannot read your mind. If you want a response to a direct point that I have not provided, please be more clear.

                  I have responded as directly as possible, given that the time snippets you provided do NOT cover any real facts, but instead are mere propaganda speaking points. There is nothing “there” there to be “juicy” about, other than what is already well known at the deeper poli/philosophical levels of Neo-Liberalism and its attendant identity politics.

                  This has FAR less to do with your attempted thrust that my views are “TOO STUCK” in my own viewpoints and far more to do with merely being able to cogitate without losing one’s critical thinking abilities.

                  Again — scoop up your brains from the sidewalk and stick them back into your cranium.

  3. 4

    Supreme Court offers Hope on Eligibility Case
    The interesting question might be to whom “Hope” is being offered? Is this hope in the form of the Supreme Court pushing back on the clear-cutting of the forest of patent eligibility being performed by the Federal Circuit? Or is this hope for those who want the Supreme Court to put a final nail in the coffin entombing patents rights in the US?

    This certainly isn’t the ideal case for those who (rightfully) believe that the dominant technology of this era involves computer-implemented inventions and it is computer-implemented inventions that have been receiving the brunt of the Federal Circuit’s clear-cutting of patent-eligible inventions. However, this is an ideal case to show just how far the Federal Circuit has stepped outside the bounds that the Supreme Court laid down in Alice (“At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. At some level, ‘all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas’” along with “Like the risk hedging in Bilski, the concept of intermediated settlement is ‘ ‘a fundamental economic practice long prevalent in our system of commerce.’ ‘ “)

    Assuming that the Supreme Court is not going to set aside its longstanding exceptions to patentable subject matter jurisprudence, what I would like to see is the Supreme Court more forcefully require an analysis of “preemption” as part of the 101 analysis (i.e., the analysis that the Federal Circuit pays lip service to). Requiring a claimed invention to substantially “preempt” an abstract idea would put an end to much of the Federal Circuit’s shenanigans.

    Of course, one needs to know what constitutes an “an abstract idea” and what counts as “preemption.”

    1. 4.1

      Those are good comments wandering.

      I think particularly relevant is that the CAFC could have easily cabined Alice and the whole notion that this is coming from the Scotus is not true. What the Scotus did was provide a tool for the CAFC to do whatever they wanted in terms of eligibility and what the CAFC did was as you say clear but information processing inventions. (Taranto is also doing the same with 112 and information processing.)

      The notion that the CAFC is, in any way, acting in good faith is ludicrous to anyone that understands patent law.

      1. 4.1.1

        [T]he CAFC could have easily cabined Alice and the whole notion that this is coming from the Scotus is not true… The notion that the CAFC is, in any way, acting in good faith is ludicrous to anyone that understands patent law.

        I do not mean this in an aggressive or hostile fashion, but I think that the above opinion is actually the one that betrays a misunderstanding of the situation. American Axle is merely the latest in a long line of “great hope” cert. petitions that have been filed since Mayo in the hope that the SCotUS will see that it has unleashed a whirlwind. The SCotUS could have stepped in and clipped the CAFC’s wings at multiple points along the line, and yet the SCotUS has repeatedly refused to do so.

        The cossacks work for the Czar. The SCotUS has not acted to stop the CAFC so far because the SCotUS wants (or at least, has wanted up until this point) the CAFC to continue as it is doing. The CAFC is merely following orders. They have cabined Mayo/Alice where they thought that they could get away with it (e.g., Vanda), but that is rare enough. Mostly, though, they have been wrecking §101 jurisprudence because they got the memo that the SCotUS wants them to wreck §101.

        1. 4.1.1.1

          Greg:

          In my opinion, what you are saying is merely your opinion. I will concede that it is an open question whether the Scotus meant for the CAFC to clear cut the patent landscape or use Alice/Mayo as they wish.

          But let’s be clear that it is trivial to cabin Alice. Mayo is a bit more problematic but Alice is trivial to cabin.

          So, did the Scotus mean for Alice to eviscerate patents or for the CAFC to figure out what boundaries they wanted on Alice? I think fair minds would say we won’t know the answer to this without more case law from the Scotus. But, I can say, if I were a CAFC judge, I would easily cabin Alice so that it would apply only in the most rare situations.

          1. 4.1.1.1.1

            [I]f I were a CAFC judge, I would easily cabin Alice so that it would apply only in the most rare situations.

            Sure, and the decision you would have written would have lasted about six months until the SCotUS GVRed it—or worse. There is nothing to be gained in the CAFC waging a futile “resistance” against a SCotUS that holds all the cards. One should not pick fights that one cannot hope to win.

            1. 4.1.1.1.1.1

              >>Sure, and the decision you would have written would have lasted about six months until the SCotUS GVRed it

              No evidence that this is what the Scotus would have done.

              None. Maybe we will see in upcoming cases what the Scotus’s intent was but right now there is no reason to believe that the Scotus would have reversed.

              1. 4.1.1.1.1.1.1

                Even while Greg is one to offer that “absence of evidence is not evidence of absence,” the stark fact that the Supreme Court has turned down, what, over 60 Cert petitions, OUGHT to tell you something about how they feel in regards to what the CAFC (and other courts) are doing.

                1. anon, no.

                  As I said the Scotus may have given the CAFC the ultimate w e a p o n in Mayo/Alice and said let them do as they will and we’ll take a look in few years.

                  As I said them not taking cert is not evidence. Maybe the Scotus would be good too with the CAFC cabining Alice.

                2. You SAY “not taking cert is not evidence.”

                  But saying so and saying that the Court is interested in correcting any deficiencies by the lower courts simply does not pass the smell test.

                  The Court is seeing what it likes. Do you really think that if the Court were unhappy, that they would be idle?

                  Say that out loud to yourself.

                3. anon, try not to be condescending.

                  What I said stands and is probably the most reasonable explanation for Alice/Mayo.

                  Not taking cert –again–merely means that the Scotus let the CAFC do what they wanted for a while with Alice/Mayo.

                4. Condescending?

                  Not at all – why is it that YOU always take a correction as the other person somehow being at fault?

                  Your view here is simply deficient. Realize it, correct it, and move on.

            2. 4.1.1.1.1.2

              >Sure, and the decision you would have written would have lasted about six months until the SCotUS GVRed it

              IDK…I’m not sure SCOTUS knows or cares much about substantive patent law. At the time of Alice/Mayo, there was a lot of pressure to “do something” about “patent trolls.”

              1. 4.1.1.1.1.2.1

                Yes, the HUGE levels of propaganda of “Oh, No Tr011s” had been in high gear for years (and always worth tracing to just WHO employed that mantra – and why).

              2. 4.1.1.1.1.2.2

                Yup OldCurmudgeon.

                The Scotus may have just said let the CAFC do what they will with Mayo/Alice for a while and we will look at it later.

                1. “do what you will” – as long as we like it.

                  C’mon man – look at how the Court reacted to the putdown’s of Breyer when one of his dissents was vocally made clear that a dissent has no controlling effect.

        2. 4.1.1.2

          I do not mean this in an aggressive or hostile fashion, but I think that the above opinion is actually the one that betrays a misunderstanding of the situation. American Axle is merely the latest in a long line of “great hope” cert. petitions that have been filed since Mayo in the hope that the SCotUS will see that it has unleashed a whirlwind. The SCotUS could have stepped in and clipped the CAFC’s wings at multiple points along the line, and yet the SCotUS has repeatedly refused to do so.

          Two points to consider:

          1) This isn’t the same composition of Supreme Court justices as in the past. Different justices can equal different results.
          2) This isn’t a computer-implemented invention or biotech.

          I would be surprised if anybody at the Supreme Court really understands the nitty-gritty of this invention (the district court judge certainly didn’t and neither did most of the Federal Circuit). However, the technology definitely has a look and feel that is different from the panoply of other 101 cases the Supreme Court have passed on in the past.

          While the Supreme Court may not care if computer-implemented inventions and biotech get stomped on by the Federal Circuit, this may have given them pause to reconsider the reach of their prior decisions.

          1. 4.1.1.2.1

            Two points to consider:

            1) This isn’t the same composition of Supreme Court justices as in the past. Different justices can equal different results.
            2) This isn’t a computer-implemented invention or biotech.

            Your overall message in 4.1.1.2 is a hopeful one, and I hope that you are right. Nevertheless, this case will not be that interesting if the only thing that SCOTUS does with it is to distinguish this case from Alice on the grounds that Alice concerned a computer implemented invention and this one does not. After all, the whole reason that people are excited about this case is that we are overdue for a correction that remedies (at least partly) the ill effects of Alice. If the Court merely says “the Alice is entirely correct for computers and biotech, but not for car parts,” that really does not help much to fix the problem.

            In order for this case to be much help, it has to rein in the rule from Alice. Toward that end, your observations about the changes in the Court’s composition are less significant than they might appear at first blush. First, only 3 members of the unanimous Alice court have changed. If everyone sticks with their previous views, the best for which we could hope is a 6/3 loss. Of course, one or more of the new justices could agree with the unanimous Alice court. Therefore, in order for this case really to amount to anything, one would not only need to convince all the new justices that Alice got it wrong, one would also need to convince at least two other justices to change their minds in light of developments since 2014.

            That is not impossible, but it is a tall order. I would be delighted if it were to happen, but I am not terribly sanguine about the likelihood.

            1. 4.1.1.2.1.1

              Nevertheless, this case will not be that interesting if the only thing that SCOTUS does with it is to distinguish this case from Alice on the grounds that Alice concerned a computer implemented invention and this one does not.
              That is unlikely as I have serious doubts that the Supreme Court will explicitly pick winners and losers when it comes to technology. That is more likely to poke (and wake) the bear (Congress) than not. Rather, if they are going to pick winners and losers they’ll likely do so with “supposedly” subject-matter neutral language.

              First, only 3 members of the unanimous Alice court have changed. If everyone sticks with their previous views, the best for which we could hope is a 6/3 loss.
              I encourage you to re-read Alice. Alice was not as far-reaching as the Federal Circuit makes it out to be. The invention of Alice was unpatentable subject matter for the same reason of Bilski —
              “Like the risk hedging in Bilski, the concept of intermediated settlement is ‘ ‘a fundamental economic practice long prevalent in our system of commerce.’ ‘ “ SCOTUS didn’t expand upon what they considered to be an abstract idea — they just let it be undefined and said that Alice’s invention was little different from the one in Bilski.

              The Supreme Court could still deem Alice to be good law yet reign in how the Federal Circuit is applying it.

              One way of reading Alice is that a fundamental economic practice long prevalent in our system of commerce using a generic computer is unpatentable under 35 USC 101. If Alice was cabined in this manner, then that changes everything. I doubt that SCOTUS will reign in Alice that much, but they could still reign it in.

              When it comes to SCOTUS, I still don’t hold out a lot of hope that things will be better. However, interest in change necessarily precedes change itself. We’ve got the first step since SCOTUS has now expressed some interest in the issue.

        3. 4.1.1.3

          No Greg. The court steps in when it has a vision or a preference. It avoids that which befuddles for as long as possible, and still lacking clarity, listens to arguments in cases from time to time and issues placeholder opinions. Befuddlement is not nearly the same as disagreement- because none of them have a dog in the fight. Patent eligibility has no political valence; it afflicts the weak and the strong, the left and the right. It only has vexing philosophical permutations, and the unartful statutory language of the patent act is an effect, rather than a cause, of the problem.

          And what exactly is the problem? Information is the problem. Information in claims that’s too abstract to carry the invention, and inventions that are made entirely of potentially useful information.

          Its only for sure, without fail useful and non abstract if a non-human uses it. Otherwise, it just might not be useful or it may not actually be new (enough) to deserve a patent.

          The axle case? Easy peasy. Axles aren’t made of information, and the result of the method is an axle in a certain configuration. It may be obvious, it may be not fully described, but it surely should be eligible amirite?

          PS, isn’t preemption really concerned with written description and/or enablement? Or more broadly, isn’t avoiding preemptive patents a policy goal in-line with not patenting ideas, and only patenting things in the world, as a general concept?

          1. 4.1.1.3.1

            Axles aren’t made of information
            Computers aren’t made of information either. While a computer uses information, so does the axle tuning process at issue in American Axle.

            PS, isn’t preemption really concerned with written description and/or enablement?
            O’Reilly v. Morse was really about lack of enablement (and/or written description). It took Justice Douglas (someone who believed that trees should have standing) to transform O’Reilly v. Morse from an enablement case to a patentable subject matter case within Gottschalk v. Benson. We’ve been left dealing with that mess ever since.

            1. 4.1.1.3.1.1

              Axles aren’t made of information. Yes, we agree.

              Computers aren’t made of information either. Yes, we agree again.

              While a computer uses information, so does the axle tuning process at issue in American Axle.

              The result of the process is a tuned axle. A tuned axle is not an item of information. The process should be eligible.

              If the end result of the process is a tuning spec, the axle is the consumer of the information.

              When the utility of information arises from human meaning, it must be beyond the reach of the patent law.

              Which stock trade to make or hey there is fetal DNA in that maternal plasma or where in the mall am I standing all have different meanings, and thus value- UTILITY to every person. They are abstractions- ideas. Non humans, like axles and rubber presses, all get the identical value from information, and that information is a machine component, not an abstraction.

              No human mind= no abstraction.

              1. 4.1.1.3.1.1.1

                At the end of the day, no human mind = no utility in the patent sense of the word.

    2. 4.2

      Thanks Wandering.

      “Requiring a claimed invention to substantially “preempt” an abstract idea would put an end to much of the Federal Circuit’s shenanigans.”

      I’d take that . . . along with a dictate that when they said to identify ONE abstract idea, they meant one and only one. They shouldn’t have to do so given the number of times they said and indicated “one” in Alice, but the CAFC, other courts, even the Patent Office has gone way off the rails with their alleging / permitting multiple abstract ideas to be alleged . . . against the very same set of claims.

      Are 2 ideas O.K.? How ’bout 3? If 3, why not 4? 5 is just one more that 4, right? 6 . . . or more?

      Sickening.

      1. 4.2.1

        When is an idea simply “one idea?”

        How many times do ideas have sub-parts, of which, those sub-parts may (rightfully) labelled as ‘ideas’ in and of themselves?

        Pro Say – this is a VERY odd hobby horse of yours – and you do NO ONE any good by pursuing it. All that you do is cast yourself as a rube, whose opinions (on other matters, with varying degrees of veracity) will only be discarded.

        Let me close with my adage:
        “Not everyone who disagrees with you is your enemy. Not everyone who agrees with you is your friend.”

        1. 4.2.1.1

          Harrumph. Since when did “one” no longer mean “one?”

          As this is a simple concept, surprised you (apparently) don’t agree.

          Your (apparent) approach (idea sub-parts of idea sub-parts is O.K. to allege) fits right in with the CAFC’s mambo-jumbo”logic” whenever they’re handed an invention that they’re “just so sure” that isn’t eligible for protection.

          Hopefully for us all they don’t see your “suggestion.”

          Oh, well.

          1. 4.2.1.1.1

            Since when did “one” no longer mean “one?”

            Often – in legal writing.

            Simplicity does NOT control – as is your want . Words from Einstein to comfort you: “Everything should be made as simple as possible, but no simpler.”

            1. 4.2.1.1.1.1

              Well my friend, if I don’t stop scratching my head over your comments on this point soon . . . I’m sure to reach brain tissue . . .

              Let’s try this: Even though SCOTUS explicitly ruled to identify one abstract idea / concept which all the claims at issue are directed to, is there in your mind any limit to how many the claims may be alleged as being directed to?

              1. 4.2.1.1.1.1.1

                Asked and answered: with the question of “Can one idea have many separate sub-ideas?”

                Further – and more to the point of your colloquial point of view: your view of “one” simply does not control the legal use of “one.”

                You seem to want to insist on treating law as if legal terms of art do not apply. I “get” that you are pro se – but this is a point that you should simply recognize: legal terms of art are legal terms of art, and the “normal” or colloquial meanings just do not control (no matter how much you would like them to).

  4. 3

    Lemley will be working overtime to try and figure out some way to derail this.

    1. 3.1

      Or imagine Chien in Biden’s office telling him that Trade Secrets are the way to go that patents are evil and what we need is stronger Trade Secrets.

      You tech dirt people should figure this out. Your salaries are going to drop by 50-80 percent when Chien does the bidding of SV and gets stronger Trade Secrets.

      No moving to another job without changing your area of expertise. No more papers in conferences unless your new Trade Secret owners say it is OK, which they won’t.

      Chien is probably telling Biden that Alice is good law and not to interfere with it.

      1. 3.1.1

        I just wish that these large corporate representatives would stop claiming to be professors doing scholarly work.

        1. 3.1.1.1

          “the power of peer review”

          …does not matter much when most ALL the peers are equally ‘corrupt.’

  5. 2

    We are overdue for a Diehr to Alice‘s Flook. Here’s hoping (against my expectations) that American Axle will be the vehicle for a needed course correction.

    1. 2.1

      Indeed. Here’s hoping. As I have observed previously, Axle is a case where the Justices need have no fears that, if they take the case, they might reveal the depths of their ignorance of the subject technology. Everybody knows what vibrations are, what resonance is, and how irritating (or lyrical) vibrations can be. Nobody need have any inhibitions about grasping and then commenting on the problem of vibration in a vehicle drivetrain.

      When will SCOTUS ever get again such an excellent case for fixing the total shambles that is eligibility as it stands today?

      1. 2.1.1

        Do you think the elite class has experience with out of balance drive shafts? Did any of these Justices ever have to diagnose and replace a worn u-joint in a used Chevy they bought with cash earned while working their way through school? Perhaps they assume that mechanics and engineers solve such problems for donuts just like programmers.

    2. 2.2

      Scotus just asked the DOJ to file a brief in American Axle.

    3. 2.3

      I think it’d be better to wait another ten or thirty years for congress to figure out and pass a permanent and comprehensive
      solution, than to get another judicial overruling-but-not-overruling bandaid on 101.

    4. 2.4

      +1

  6. 1

    Is Biden’s choice for the empty CAFC place an early indication of orderly legal thinking? Hope so.

    1. 1.1

      It’s as if you had a mind unwilling to understand in your eagerness to emphasize Biden’s “orderly legal thinking“…..

      While THIS choice may well be a top notch choice, the past RAGING discussions on the influence of ISMs absolutely removes the notion of “Biden’s orderly legal thinking.”

      Or are you just flinging feces again?

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