Moot Court: Aka Spinning Class at the Law School

by Dennis Crouch

We do a moot court competition every year in my basic patent law course at the University of Missouri.  The students just submitted opening briefs. Responsive briefs are due over the weekend, and oral arguments will be held next week on the 16th and 17th of November. It is a fun capstone for the course, although it is some amount of work for the students.  Folks at McKool Smith have provided some funding and so the winner receives a nice $1,000 check.

[I could use a few more judges — you can sign-up via doodle; or contact my Teaching Assistant Homayoon Rafatijo]

This year’s case is based directly on Judge Gilstrap’s recent patent eligibility decision in  Mad Dogg Athletics v. Peloton Interactive (E.D. Tex. Sept. 15, 2021).   Mad Dogg was the originator of the indoor Spinning market back in the early 1990s (it owns the registered TM on SPINNING and SPINNER).

In the 2000s Mad Dogg entered a new marked for video-led home-indoor cycling and also created its new spinning bicycle that incorporated a touch-screen display and controller.  The patents at issue here cover this new development (2005 priority filing date; 9,694,240 and 10,137,328).   In 2014, Peloton released its own competitor product and has built-up a multi-billion-dollar product line.

In December 2020, Mad Dogg sued in E.D. Tex.  Peloton responded with a 12(b)(6) motion to dismiss for failure to state a claim — arguing that the claimed inventions were improperly directed toward an abstract idea.  And, the district court agreed – dismissing the case.  The court particularly concluded that the claims are directed to the abstract idea of “providing instruction for an exercise bike class.” Regarding Alice Step 2, the court did not actually determine whether the claims recite a sufficient inventive concept, but still dismissed the case — holding that the plaintiff did not plead “enough facts … to avoid a Rule 12(b)(6) dismissal.”

In the real case, Judge Gilstrap dismissed without prejudice–providing Mad Dogg with the opportunity to refile a complaint that asserting additional facts regarding Alice Step 2.  However, I modified the order for our moot court so that the dismissal is with prejudice, thus setting up the appeal. [Read the Case File Here].  In order to facilitate our quick timeline within class, I announced the issues by fiat and required both appellants and appellees to file their briefs simultaneously.

The parties have agreed to limit the appeal to two questions:

  1. Whether the district court erred by placing the burden on the patentee to affirmatively show patent eligibility.
  2. Whether the district court erred by finding that the patentee had failed as to patent eligibility under 35 U.S.C. 101.

As you think about this case, consider claim 1 of the ‘240 patent:

1. An exercise bike, comprising:

a frame that is configured to allow a rider to ride in sitting and standing positions;

a direct drive mechanism that couples a pedal assembly and a flywheel and that facilitates a smooth transition between sitting and standing positions;

a set of handlebars that is coupled to the frame and that provides the rider with at least one hand position;

a mechanism that provides resistance to the flywheel and that is manually adjustable by the rider to vary the pedaling resistance;

a computer that is coupled to the stationary bike, that is configured to connect with the internet or other computer network to access a collection of exercise routines, wherein the exercise routines include instructions regarding cadence, pedaling resistance, and riding positions including sitting and standing positions, and that stores power exerted by the rider;

a display that is coupled to the computer, that displays an exercise routine from the collection of exercise routines so that the rider is provided with instructions for the rider to manually adjust pedaling resistance, and instructions for the rider to vary cadence and riding positions including sitting and standing positions, thereby simulating an instructor-led exercise class, and that displays power exerted by the rider; and

an input device that is coupled to the computer and that enables the rider to input data into the computer.

What do you think of this case? Any thoughts on how you might argue the appeal? Thanks!  Crouch.

74 thoughts on “Moot Court: Aka Spinning Class at the Law School

  1. 13

    Wandering Poo: Infringement 101 — ALL limitations must be practiced by the prior art.

    This is not true for certain method claims reciting “if/then” clauses which lead to two or more alternate steps. That claim is infringed by following just one of the alternate paths and (this is key) such a claim also anticipated by following one of the alternate paths.

    1. 13.1

      I have to chuckle at the deflection from Poopy Diaper.

  2. 12

    This is totally off-topic, but a miracle happened this morning: the District of Delaware ruled a patent invalid on §101, and Judge Dyk joined a decision to reverse that verdict. This has to be a first. My hat is off to George Pazuniak, a true thaumaturge of an appellate lawyer.

    1. 12.1

      Let’s add some context. This is the claim at issue:

      5. A multiple access communication method in a mobile station, comprising the steps of:
      receiving an assignment of at least a first PDCH (packet data channel) and a second PDCH;
      monitoring an assigned PDCH to detect a USF; and
      transmitting on an assigned PDCH corresponding to the USF, wherein
      (i) if shifted USF operation is not used then a first assigned PDCH is monitored to detect a USF corresponding to the first assigned PDCH and (ii) if the shifted USF operation is used then a second assigned PDCH is monitored to detect the USF corresponding to the first assigned PDCH and a USF corresponding to the second assigned PDCH.

      This is what the District Court stated: “The district court held claim 5 is “directed to the abstract idea of receiving a USF and transmitting data during the appropriate timeslots.'” Slip at 6.

      The actual analysis presented by the Federal Circuit is the following: “Here, claim 5 is directed to a patent-eligible improvement to computer functionality, namely permitting additional multislot configurations for certain classes of mobile stations using extended bandwidth allocation.” Slip at 8.

      My hat is off to George Pazuniak, a true thaumaturge of an appellate lawyer.
      One does not have to be a miracle workers to have saved these claims.

      Oh, and who was the District Court judge that stated “receiving a USF [uplink status flag] and transmitting data during the appropriate timeslots” is an abstract idea? That would be one Leonard P. Stark. Now certain someones can understand why I expressed doubt as to his appointment to the Federal Circuit. This patent screams technology yet Stark thought it was an abstract idea.

      Judge Dyk joined a decision to reverse that verdict.
      Had Prost replaced either Moore or Lourie, Dyk would have flipped. I suspect that Dyk realized that he couldn’t write a dissent that didn’t make him look like a fool so he just bowed out. Dyk’s joining the majority had nothing to do with any change of his interpretation of the law. The numbers were just against him.

      On a side note, the method claim listed above arguably cannot be infringed. The claims call for “if shifted USF operation is not used [do something] … if the shifted USF operation is used [do something else].” The shift USF operation is used or not used. I cannot see how it can be both (although the claims do not provide a time limit when this occurs). Infringement requires that ALL of the limitations of the claims be met. Not sure if there are any cases on point as to this issue, but I would love to have a cite if someone has one.

      1. 12.1.1

        Good analysis Wandering.

        Probably a standards case where the standard says that the station has to behave as to claim 1 and the manufacturers have to certify that their stations behave has the standard says.

      2. 12.1.2

        Maybe of interest is that the EPO would hold this as a technical problem of using the wireless medium more efficiently.

        So….hmmm…..

      3. 12.1.3

        [T]he method claim listed above arguably cannot be infringed.

        Agreed. I expect that most fact-finders would overlook this point if they think that the alleged infringer really is copying the claimed invention. The case for infringement, however, would have been more solid if the prep & pros team had broken the method into two separate independent claims, rather than this choose-your-own-adventure format.

        1. 12.1.3.1

          They just needed to use “perform one of (i)… or (ii)…”.

          And if you have apparatus, method, and CPP claims, to split this requires 6 independent claims. Then if you have two sides of a communication (sender and receiver), you’d have 12 independent claims. Not many clients will pay that much. None I know, anyway.

          1. 12.1.3.1.1

            You don’t have to split up the apparatus and CPP claims.

            For the apparatus, you can recite: “an apparatus configured to perform x when y happens and perform z when not-y happens.” The same could be done for the CPP claims.

            For the method claims, I would write:
            selecting between X and Z based upon Y/not-Y; and
            performing x based upon not-Y.

            Whether “Y” or “not-Y” is claimed would be dependent upon what limitation is more important for patentability.

      4. 12.1.4

        I really don’t get your argument Wandering that the method can’t be infringed.

        “If shifted USF operation [not ] used …. ”

        You are assuming that “USF operation” is not some type of configuration of “mobile station”. The “mobile station” may have to be configured to operate in both “USF operation” and a non “USF operation”.

        So I really don’t get what you are talking about. The fact is that this type of claim is common in 3GPP/IEEE 802.11 claims and typically reads directly onto the standard where the “mobile station” has to be configured to operation in both modes “USF operation” and non “USF operation” to be certified by the standard.

        Am I missing something? Look this is easy. The “mobile station” just has to be configured to operate both in the “USF operation” and the non “USF operation.”

        1. 12.1.4.1

          The “mobile station” just has to be configured to operate both in the “USF operation” and the non “USF operation.”
          For a device claim this is easy to do (see my comment at 12.1.3.1.1).

          However, as to the method claim, the question becomes does the “wherein …” clause characterize a particular step to be performed (in the method) or does not “wherein …” clause modify the configuration. This isn’t as clean cut of an example as others I have run across. However, this type of claim language could introduce issues that could have been addressed with different claim language.

          1. 12.1.4.1.1

            I think I don’t agree with you. I don’t see a problem with the claims.

            Plus, again, the claims may be directed to a standard which uses the same language.

            I agree that the wherein clause isn’t great but I don’t think it creates the problem you say it does.

            1. 12.1.4.1.1.1

              I don’t think it creates the problem you say it does
              Infringement 101 — ALL limitations must be practiced by the prior art. If the wherein clause refers to an operation being performed, then not all limitations are performed. If the wherein clause refers to a configuration of the computer (i.e., capable of performing both operations), then the wherein clause could be infringed.

              Consider the following two alternative claims:
              Claim 1:
              transmitting on an assigned PDCH corresponding to the USF;
              monitoring a first assigned PDCH to detect a USF corresponding to the first assigned PDCH if a shifted USF operation is not used (ii)
              monitoring a second assigned PDCH to detect the USF corresponding to the first assigned PDCH and a USF corresponding to the second assigned PDCH if the shifted USF operation is used.

              versus Claim 2:
              monitoring an assigned PDCH to detect a USF; and
              transmitting on an assigned PDCH corresponding to the USF, wherein the mobile station is configured to perform:
              (i) if shifted USF operation is not used then a first assigned PDCH is monitored to detect a USF corresponding to the first assigned PDCH and (ii) if the shifted USF operation is used then a second assigned PDCH is monitored to detect the USF corresponding to the first assigned PDCH and a USF corresponding to the second assigned PDCH.

              Claim 1 cannot be infringed.* Claim 2 can be infringed.

              * Actually it is possible if the “shifted USF operation” can both be used and not used — albeit at different times. This, however, does not seem probable.

    2. 12.2

      Intriguingly, the lawsuit being appealed was filed on 28 (against DiGi) & 29 (against EloTouch) Dec 2020, but the patent being asserted expired 4 Oct 2017. There is no possibility of an injunction for an expired patent, so the most that the patentee can be hoping for here is back damages between Dec 2013 and Oct 2017. Fair enough, of course, but somewhat strange.

      1. 12.2.1

        Sorry, Dec 2014, not 2013.

      2. 12.2.2

        Those are some weird dates.

  3. 11

    Not reading through all the comments, but a computer “that stores power exerted by the rider” is suboptimal wording. A computer that stores information indicating power exerted by the rider is another thing entirely. This reminds me of the case (Chef America?) in which the claims recited cooking dough to between 400-800 degrees for 5 minutes (or something similar). Claim what you mean.

  4. 10

    Bros idk if you guys saw this announced but they invented a person-sized and seemingly somewhat safe drone-copter.

    link to youtube.com

    It’s only 92k but sold out for 2022 run.

    link to jetsonaero.com

    What’s funny is this comes right after Neil Tyson predicts this is NOT the wave of the future like 2 years ago. Idk, it could be come all the rage with rich people with short commutes.

    1. 10.1

      In still other tech news, it looks like the chad space rocket-thrower might be developed here shortly, looking promising.

      link to youtube.com

      Note however the distinct lack of diversity :((((( I fear that the evil ones are trying to oppress.

    2. 10.2

      That drone needs a free-wheeling (maybe folding) rotor like a Gyroplane & a ballistic parachute right above that.

      Ability to auto-rotate to a power-out landing or pull the cord would add a major safety dimension and probably aero-performance too.

      1. 10.2.1

        “That drone needs a free-wheeling (maybe folding) rotor like a Gyroplane”

        What for?

        “Ability to auto-rotate to a power-out landing ”

        If that is why you’re suggesting the folding/free wheeling rotor, then it might be worth it, but the added weight might not be permissible at the current time (flight time already only 20 mins probably with top notch batteries) until better battery tech can be had. So many things hinge on better batteries in the current day. If they could add a super light weight one that would help unpowered decent then that would be good tho.

        “a ballistic parachute right above that”

        It has a ballistic parachute already, not sure where it pops out tho. So it already has the ability to “pull the cord”. And I think it auto-pulls it under some circumstances.

        1. 10.2.1.1

          The freewheeling rotor would nullify it’s own weight via lift with slight forward motion- it may hurt purely vertical liftoff but gyros can bounce off within a few lengths….save battery life…increase top speed if the current lift motors can be used for forward propulsion in cruise

          1. 10.2.1.1.1

            “it may hurt purely vertical liftoff but gyros can bounce off within a few lengths…”

            Pretty sure it is 100% vertical liftoff. It’s fixed engine position drone style for now I think.

            “increase top speed if the current lift motors can be used for forward propulsion in cruise”

            I don’t think the motors/blades- can be adjusted to be positioned “forwards” all that much, they only face more or less “upwards” like normal fixed blade position drones. At present I think. But maybe next build.

  5. 9

    If Mad Dogg’s US 9,694,240 and US 10,137,328 get invalidated as being subject matter ineligible, then they were pretty much moot patent examinations.

  6. 8

    displays an exercise routine from the collection of exercise routines so that the rider is provided with instructions for the rider to manually adjust pedaling resistance, and instructions for the rider to vary cadence and riding positions including sitting and standing positions, thereby simulating an instructor-led exercise class, and that displays power exerted by the rider
    Some ugly claim language there. Probably unnecessary but since I haven’t seen the prior art, I’m only speculating (I addressed this speculation below).

    BTW — Gilstrap knows his 12b6 jurisprudence. The typical remedy for a 12b6 motion to dismiss is to all the application to refile the complaint. A 12b6 motion is about the sufficiency of the complaint. It isn’t supposed to be an evaluation of an affirmative defense. Or at least that’s how it is interpreted by every court in the land except the Federal Circuit. In essence, the finding associated with a 12b6 motion is that there hasn’t been enough facts alleged that make out a particular claim. Citing Ashcroft v. Iqbal (2009 Supreme Court decision), “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Is that how the Federal Circuit handles a 12b6 motion? Clearly not and clearly inconsistent with Supreme Court precedent.

    To answer, the question of what the Federal Circuit would do on appeal, my first question would be to ask who was on the panel. In most instances, the composition of the panel would result in the claims being invalidated under 35 USC 101. However, in other instances, this invention would pass muster under 35 USC 101. In other words, the results are PANEL DEPENDENT — as is with most 101 cases. The law is so messed up that any judge can pick a particular past decision to support the decision that he or she wants to make. To be clear, there is no 101 law. There are only judge preferences as to what should or should not be patentable.

    As it turns out, after looking at the prosecution history, the claim language that was added in the ‘240 Patent to get this allowable was that the “computer … stores power exerted by the rider,” and the “display … displays power exerted by the rider.” Forgetting the minor antecedent basis issue here (as well as a possibly major enablement issue), the argument presented in the ‘240 Patent was that the applied prior art “does not disclose or otherwise teach anything about the measure or display of power exerted, let alone in the context of an indoor cycle.”

    If the measuring/displaying of power exerted in a cycle was not previously disclosed or rendered obvious by the prior art, then this invention should be patentable AND patent eligible. The whole “instructions for the rider to vary cadence and riding positions including sitting and standing positions, thereby simulating an instructor-led exercise class, and that displays power exerted by the rider” limitations are a red herring. They probably should have been deleted from the claims (few attorneys actually think to remove limitations that were previously added to distinguish over the prior art yet later on proved to be ineffective for the task). If I invented a brand new particle accelerator and at the end of the claims included the language (“and attached thereto are instructions for operating the particle accelerator”), these instructions do not transform an otherwise patent eligible invention into a patent ineligible invention.

    To answer the actual questions posed:

    Whether the district court erred by placing the burden on the patentee to affirmatively show patent eligibility.
    Yes, patent ineligibility must be shown by clear and convincing EVIDENCE. That burden rests with the accused infringer (Microsoft v. i4i). Since a 12b6 motion is prior to EVIDENCE being submitted, it is inappropriate to rule on the defense of patent eligibility. However, while this is the LAW, the Federal Circuit doesn’t follow the LAW. Rather, they proceed to dispense with the EVIDENCE. This was somewhat corrected by Berkheimer, but Berkheimer has been essentially ignored the last couple of years at the Federal Circuit.

    Whether the district court erred by finding that the patentee had failed as to patent eligibility under 35 U.S.C. 101.
    That question missing some words? “the patentee had failed as to patent eligibility.” Patent claims are patent eligible (or not) — not the patentee. Regardless, this question goes back to what a 12b6 motion is all about. It is about failure to state a claim. FYI, I found this quote rather amusing: “As a practical matter, Rule 12(b)(6) motions are rarely successful, and when they are, their success usually has more to do with the judge than the law.” That sums it up quite nicely with regard to the Federal Circuit. Berkheimer says that patent eligibility can rest of facts. A 12b6 motion is before evidence is presented. Consequently, the district court ALWAYS ERRS in invalidating a patent on a 12b6 motion. This would be the law in any other court in the law except the Federal Circuit — who like to make up their own law.

    1. 8.1

      Wandering through, I did not follow your reasoning, or I did not understand your position. Your reasoning seem to indicate that the complaint should contain facts that support the eligibility of the asserted claims

      1. 8.1.1

        Your reasoning seem to indicate that the complaint should contain facts that support the eligibility of the asserted claims
        It does not. A complaint should contain facts that supports the claim. What is the claim in this instance? In this instance, the claim is for patent infringement. Hence, the facts being plead must go to the elements of patent infringement. Also, the claim, based upon the facts, must be plausible on its face. Referring to Scheuer v. Rhodes (Supreme Court 1974), the issue is “not whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims.”

        The Federal Circuit actually correctly applied the 12b6 standard in Disc Disease solutions v. VGH solutions, 888 F.3d 1260 (2018). As they wrote then:
        Under Iqbal / Twombly , Disc Disease was required to “state a claim to relief that is plausible on its face.” [] This plausibility standard is met when “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” [] “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the … claim is and the ground upon which it rests.’ ” []” (citations omitted).

        This is how a 12b6 motion to dismiss should be evaluated. As the Federal Circuit subsequently found in Disc Disease:
        The asserted patents, which were attached to the complaint, consist of only four independent claims. The complaint specifically identified the three accused products—by name and by attaching photos of the product packaging as exhibits—and alleged that the accused products meet “each and every element of at least one claim of the ‘113 [or ‘509 ] Patent, either literally or equivalently.” J.A. 54–55. These disclosures and allegations are enough to provide VGH Solutions fair notice of infringement of the asserted patents. The district court, therefore, erred in dismissing Disc Disease’s complaint for failure to state a claim.

        When one does the legal research as to how 12b6 motions are supposed to be handled versus how the Federal Circuit allows them to be handled, you’ll understand why I have been exceptionally critical of the Federal Circuit. They are loose cannons who have remade the law to fit their intent — to more efficiently invalidate patents.

        1. 8.1.1.1

          Wt,

          Excellent points – with the additional point being that ANY patent being sought to be enforced enjoys a statutory presence and level of a presumption of validity.

          Your reference to the i4I case is highly pertinent, and is simply not even being considered in the 12B6 dismissals for eligibility.

    2. 8.2

      +1

    3. 8.3

      Loved the “red herring” paragraph. It is my experience too, that prosecutors can be thoughtless enough to leave in place claim amendments from a previous round, unhelpful amendments that turned out to be unfit for purpose.

  7. 7

    For anyone who might be enamored of Marty’s overly simplistic (and also plain wrong) view of the eligibility analysis, please take five seconds to consider how the analysis works if (1) everything about this exercise bike is in the prior art, exactly as claimed EXCEPT (2) the display screen displays text wherein the text comprises non-obvious content.

    In other words, you can’t rely on 103 to avoid the eligibility issue which should be slapping you in the face if you are a normal non-patent huffing person.

    So what’s the proper 101 analysis? Feel free to state any additional/alternate assumptions that affect the result. Please also be aware that the so-called “printed matter doctrine” is an eligibility test.

    1. 7.1

      Your understanding of the Printed Matter Doctrine is known to be woefully inadequate.

      Cue the reminder of the plethora of times that I invited your engagement, starting with the Hricik side of the blog, hyperlinks to that side, and even multiple full-on repeats on this side.

      Your (repeat) drive-by poopy diaper routine impresses no one.

      1. 7.1.1

        Okay so the cowardly lying sack Billy refuses to step up. Any other of Kwouch’s Kwazy Kids want to step up or are you all just going to fill your diapers like Billy?

        Oh and for the record note that Billy couldn’t even bring himself to admit that the PMD is an eligibility test. Truly a serious and substantial thinker about this subject.

        1. 7.1.1.1

          LOL – more of that Malcolm specialty of
          Accuse
          Others
          Of
          That
          Which
          Malcolm
          Does

          I have LONG “stepped up” to your shenanigans, Malcolm.
          I will continue to do so, as you making a mockery of yourself provides a certain level of delight.

    2. 7.2

      (2) the display screen displays text wherein the text comprises non-obvious content.

      Probably not even so. From my cursory reading of the applications, the screen displays the same thing as instructors would say.

      1. 7.2.1

        For that matter, I’d be surprised if you couldn’t find a “workout of the day” website, message board, mailing list by 2005.

    3. 7.3

      Firstly Non-Prophet, spouting “wrong” -anon style- regarding eligibility is simply wrong.

      The law of eligibility is barely written and completely unsettled. It’s a basic political policy problem squeezed into a lot of ancient law & reliance interests and lately misused- lately being the last 30 years or so.

      Many reasonable people, including past and current Supreme Court and CAFC judges and numberless lower court judges have idiosyncratic views about Section 101 and its relation to the rest of the act.

      What you are doing- taking an exercise bike and reducing it to whatever is new, then characterizing just the new as the subject matter of the invention- and doing so essentially at the whim of the jurist- is hardly universally applauded as the rightapproach.

      So boo hoo my lack of legal training. I’ve got enough to see this hairball for what it is.

      And what I see is a necessity to construe inventions in the same way as claims are construed- as a matter of law, in an adversarial manner and not in this uselessly mercurial 12(b)6 regime.

      This invention could be an improved exercise bike- a machine- and if that’s what the inventors want to claim, they should be able to claim it as such. It’s beyond obvious as a machine & will be rejected but that’s a reasonable eligibility analysis.

      On the other hand, if the inventors claim it as an improved method of exercise, its the same gear, but now we have a different eligibility analyses, don’t we?

      Obviously there has to be some kind of estoppel so that the invention claimed at the USPTO is the same claimed in court.

      Is our PHOSITA, when they finally show up, going to be skilled in the bicycle building arts or the exercising arts? Perhaps in the personal motivation arts? It’s the same with a million digitized processes. Which art? What is the actual invention?

      How does that actual invention map to Section 101, or are we not even mapping to the four categories because we do eligibility now as a compact obviousness / WD test, without pesky PHOSITA or papers outside of the patent and the complaint?

      Waa waa waa. If this is a bike, its eligible. If this is a method to motivate cyclists with networked data, it really should not be eligible.

      I’m not wrong.

      1. 7.3.1

        So boo hoo my lack of legal training. I’ve got enough to see this hairball for what it is.

        Point to Marty.

        That being said, recognizing that Malcolm is in the weeds does NOT mean that Marty recognizes the terrain of what the path itself looks like.

        1. 7.3.1.1

          I am sure Marty has hit a nerve there. I also just found out that when a case is closed with prejudice it just means the same issue can’t be brought before the judge. So when the case was filed claiming i allowed it, only means one thing. When he filed it the substance of the complaint in the court case had to do with identity, and an identity thief. My Stroud SS CARD was stolen and used by the holder of my SS CARD.
          The reason i know this is because when I won 1,000.00,enough to have to send to the lottery I was repeatedly told to resend all kinds of proof. this was of course used by my identity thief and when I had to sign for the check, Robin would not let me see the person who sent it to me. But i did see whose hand writing it was.
          I also found out that ancestry says Judy lived in Plymouth when I did? NO she didn’t. I also paid to research Judy’s property. It said she owned 3 homes in Massachusetts. NO SHE DIDN’T OWN THEM She had my Homes. John and Judy were twins as well as my sister and I were. But we were identical twins.
          Why would Mickey and Susan who even visited me in Plymouth have Judy listed as living there. Judy didn’t even visit me there or here. She called me to apologize. Can you imagine that. now that I just found out they claimed she was living in Plymouth. Those SSI checks were being sent to a PO BOX there, and Richard Egan was picking them up. I am sure that is not only federal fraud but conspiracy. to commit fraud.

          1. 7.3.1.1.1

            This is why she moved to Mississippi and Rchard Egan went there to establish residency. then he moved to Jackson. Schaeffer;’ former paralegal Robin Steward left his employ, when I faxed the Express mail receipts firing Berkenstock with the commissioner of Patents and to him personally were faxed to the office. They were switch the USPS criminally which then showed Berkenstock was not fired, and probably told the Commissioner of Patents he was Atty. of record. Steward then went to Memphis State and got her law license in Mississippi and TN.
            All of this using my incorrect identity that is technical enough to keep the door open in court(s) for me to get my due process, under my real identiy.
            An Essex county law firm wanted me to not sue??? So this means Guerwood J. Lewis and Raymona were there at that time. It also means that 53 myrtle Street that was mine Richard Egan changed the day he had me go with him. Funny thing the realtor that was set to deal with me while Ricahrd Egan was out, and spoke to me as if it was my home, was really dealing with me as the homeowner. This is why I am still listed as living there as Sarah Stroud the only evidence of me as Sarah Stroud. and again this also boils down to conspiracy. I just don’t see much of this being a common law issue. This of course is why Silva and Salinas said the magic phrase.

            1. 7.3.1.1.1.1

              JUDY was the subject in the first line. And Richard Egan is the correct spelling.

    4. 7.4

      >text comprises non-obvious content.

      If you are factually correct, then there is presumably an eligible software invention lurking in there somewhere. Does limiting that invention to an exercise bike (i.e., by adding a bunch of mechanical limitations) somehow make it less patentable?

  8. 6

    Looks like the claim is deficient. The invention seems to be in ‘transforming’ a stationary bike into a virtual exercise class via computer. Should overcome #2alice, except the claim is defective.

  9. 5

    Definitely should not have been dismissed on 12(b)(6) on patent ineligibility. Other issues should be considered (102, 103, etc.).

    It is not directed to an abstract idea, but to an improvement to existing technologies (cycling machines). It doesn’t preempt the field, as it leaves room for additional improvements in the area. It also appears to be a practical application, even if there is an abstract idea in there.

  10. 4

    There is a high chance that nothing on the record states that “a computer that … stores power exerted by the rider” was done in prior art. The defendant might argue that this limitation means that the computer stores the information how much power was exerted by the rider, but that would require claim construction and is not allowed at this stage. Instead, in a view most favorable for the plaintiff, the plain meaning of the claim limitation is that the computer stores the power generated by the rider. Without fact checking it is not possible to understand whether that was the case with prior art solutions. It would probably be worth to take a deep look at the prior art mentioned in the specification to find out whether prior art solutions were storing energy or simply used the energy that was generated by the rider during use of the prior art solution.

  11. 3

    The subject matter of the claims appears to be an improved exercise bicycle, which should be eligible as a machine under Section 101.

    The flamboyant obviousness of the claims is another question. KSR style “Common Sense”, clearly.

    1. 3.1

      Thanks attorney Snyder,

      Oh wait…

      Thanks armchair-quarterback-who-can’t-be-bothered-with-understanding-patent-law-terrain Snyder.

  12. 2

    I think that America is a better place when people who would “invent” similar “inventions” see this “inventor” receive nothing but a rude dismissal.

    1. 2.1

      Depends how you get there.

      If you advocate for a w a n k i e like yourself to hold the invention as obvious based on having their hand down their pants and making a proclamation, then no boy. Go w a n k off in private.

      If you advocate for (a professional ) applying the law and finding that the claims are obvious as whole over the prior art, then yes hold it should be held to be obvious over the prior art.

      1. 2.1.1

        Yup -it’s the canard of “invent similar so must not be worthy of a patent” type of surface analysis.

    2. 2.2

      Oh c’mon Ben this kind of silly claim should provide the patentee with a modest income sufficient to buy a house in Texas and should require at least five attorneys and a few hundred hours of a Federal judge’s time to destroy. Anything less than that is basically just denying the existence of personal property rights.

    3. 2.3

      I think that America is a better place when people who would “invent” similar “inventions” see this “inventor” receive nothing but a rude dismissal.
      You have an opinion not shared by most in this country.

      When people learn what I do for a living, a substantial portion tell me about inventions they have. Mind you, I have NEVER even entertained representing any of them for several reasons. First, there inventions are terrible. Two, no individuals could afford my services (heck, I could barely afford my services). Third (and more recently), the whole US patent system is so biased against small-time inventors that I would feel really bad about taking their money and getting up their hopes when it is near impossible for a small-time inventor to assert their patent. That being said, every one of them would be shocked to learn that what many people consider to be the distinguishing characteristic of a Peloton bike couldn’t be patented.

      For being a patent blog (presumably for the benefit of patent law), the most virulent anti-patent people I have ever encountered in my life can be found here and 717 Madison Place (not the blog but the DC address).

      1. 2.3.1

        +1

        Well said.

      2. 2.3.2

        … and one of the most virus-laden (virulent) of those — named conventionally as Malcolm, and currently as The Prophet — whines incessantly that the authors are in that “one bucket” of the most extreme Right Wingers ever imaginable.

        Granted, Wt’s tenure here seems to have started pretty much within the last year and a half, and during that time was when Malcolm had taken a just over a year long leave of absence. Wt probably has not witnessed (too much) the anti-patentist with the most nonsensical vitriol.

        1. 2.3.2.2

          I remember when MM was Mal colm Moon ey and there was a time he was civil. However, that was well over a decade ago. That aside, there is a hidden ignore function here. If you know how to use it, you can ignore anybody’s posts. I only use it for a single person — I’ll let people guess who that happens to be.

          BTW — don’t ask me how to use the ignore function. Its my secret.

          1. 2.3.2.2.1

            LOL – Even if I knew the ign0re function, I would not use it.

            I like to engage — even those like Malcolm that engage empty-headed.

          2. 2.3.2.2.2

            And by the by, I do not think that Malcolm was EVER civil (or perhaps you are thinking of the rare occasion when he actually engages on a point of law without his short script).

            At about the time of his disappearance, he was about to celebrate a milestone of vile posting (uncovered due in part to Night Writer’s pointing out that Malcolm had posted in a certain manner dating back to the beginning of this blog, and a subsequent crawl of the archives available).

      3. 2.3.3

        “You have an opinion not shared by most in this country.”

        I don’t think this is true.

        Of course you could describe the context in a way that persuaded the everyman of the investor’s great accomplishment.

        And of course I could describe the context (focusing on how the inventor added nothing to screen or bike technology, but rather slapped two things together the way a child might) in a way that would persuade the everyman that the inventor deserves nothing.

        More relevantly, if the everyman heard both our versions, I’d bet that they wouldn’t think this inventor deserves a dime.

        1. 2.3.3.1

          That’s a bet that you would lose.

          You forget, Ben, that you have this habit of confirmation bias, so that “Just Say No” Office training gets in your way.

        2. 2.3.3.2

          [I]f the everyman heard both our versions, I’d bet that they wouldn’t think this inventor deserves a dime.

          Maybe. Maybe not. Hard to say. Richard Feynman once said, “The first principle is that you must not fool yourself, and you are the easiest person to fool.” I regard the conversations on this board—on all sides, myself included—as daily empirical confirmation of Feynman’s intuition.

          1. 2.3.3.2.1

            Why was TSM developed, Greg?

            Was it not because it’s far too easy to look at an invention and conclude that it was obvious? I thought this was a tenant of the patent bar.

            And now I hear skepticism that an everyman might not be impression by sticking an exercise bike and a computer monitor together!

            That seems convenient.

            1. 2.3.3.2.1.1

              At the 2:18 to 2:40 mark

              link to youtube.com

              Ben, through his Confirmation Bias filters, does not quite what is and what is not “convenient.”

        3. 2.3.3.3

          And of course I could describe the context (focusing on how the inventor added nothing to screen or bike technology, but rather slapped two things together the way a child might) in a way that would persuade the everyman that the inventor deserves nothing.
          You obviously haven’t been around the lay person or have a marginal grasp of what the lay person thinks is patent eligible. Let me give you a hint, the lay person considers the scope of patent eligible to be FAR GREATER than what is currently provided by the Federal Circuit — this applied even prior to Bilski.

          rather slapped two things together the way a child might
          That’s Examiner-think at its best (worst?) right there. Nearly everything that is new is made of combinations of the old.

          More relevantly, if the everyman heard both our versions, I’d bet that they wouldn’t think this inventor deserves a dime.
          I suggest you query 20 acquittances who don’t have any skin in the game (e.g., they aren’t ‘free software for all’ types who don’t believe in intellectual property), and ask them this question: Should you be able to get a patent on a stationary bicycle that displays videos of workouts — assuming that nobody has thought of that combination before? You can mention the Peloton bike as a reference. I suspect you (but not I) would be very surprised with the answers.

          Not only does the lay person have a far more liberal definition of patent eligible subject matter, they are far less likely to believe something to be unpatentable based upon the obviousness standard of 35 USC 103.

          1. 2.3.3.3.1

            “Let me give you a hint, the lay person considers the scope of patent eligible to be FAR GREATER than what is currently provided by the Federal Circuit”

            I’m not talking about eligibility here.

            “I suggest you query 20 acquittances…”

            I already agreed that the right wording would get a favorable response, so don’t break your arm off patting yourself on the back. You’ve managed to agree with me while dancing away from my point.

            Since this is likely fruitless, let’s look at another angle.

            Why was the “obviousness” portion of the 1952 law passed? Was it because non-patent types have a super strong appreciation for the inventiveness of simple combinations?

            1. 2.3.3.3.1.1

              I already agreed that the right wording would get a favorable response, so don’t break your arm off patting yourself on the back.
              My wording [of the question] did not attempt to persuade the listener as to the correct answer. To me, it isn’t about what you can persuade the everyman to think. Rather, the point I originally raised involved what the everyman thinks already.

              When people ask what I do for a living, I don’t say “I’m a patent attorney.” That is too off-putting for many because attorneys can be intimidating to those who are unaccustomed to them. Rather, I say “I help people get patents.” That frequently elicits a response of “oh, I have this idea that I always wanted to patent” [oftentimes with references to Shark Tank — a show I’ve probably spent 10 minutes watching in my entire life]. I usually avoid any further discussion on their idea, but sometimes they persist. It is from hearing those ideas that I’m comfortable stating that the average person has a very high threshold for being obvious (conversely, a very low threshold for being non-obvious). It is near a novelty-like requirement. This is been my experience for decades now.

              Whether you believe me or not, it really doesn’t matter to me. However, I have no reason to misrepresent my experiences.

              Why was the “obviousness” portion of the 1952 law passed?
              Read the Federico commentaries. This is what he stated with regard to obviousness:
              While it is not believed that Congress intended any radical change in the level of invention or patentable novelty, nevertheless, it is believed that some modification was intended in the direction of moderating the extreme degrees of strictness exhibited by a number of judicial opinions over the past dozen or more years; that is, that some change of attitude more favorable to patents was hoped for.
              To be obvious doesn’t mean “oh, now that I’ve seen that, I could have done that myself” (e.g., the supposed combination of workout videos and bicycles).

              Was it because non-patent types have a super strong appreciation for the inventiveness of simple combinations?
              That question needs rewording.

              1. 2.3.3.3.1.1.1

                While it is not believed that Congress intended any radical change in the level of invention or patentable novelty, nevertheless, it is believed that some modification was intended in the direction of moderating the extreme degrees of strictness exhibited by a number of judicial opinions over the past dozen or more years; that is, that some change of attitude more favorable to patents was hoped for

                This DIRECTLY ties to the self-christened label for the Supreme Court of, “The only valid patent is one that has not yet appeared before us” and THAT Court’s constant m0n key1ng around with “Gist,” “Gist of the Invention,” Inventive Gist,” or other of a dozen or so variations thereof.

                ALL of this of course directly refutes the attempts of Paul and others to demand that the Act of 1952 was strictly there to codify what the wayward Judicial Branch had been wreaking.

                Ben is not the only one stuck in a cognitively challenged bias.

              2. 2.3.3.3.1.1.2

                “That frequently elicits a response of “oh, I have this idea that I always wanted to patent” [oftentimes with references to Shark Tank — a show I’ve probably spent 10 minutes watching in my entire life]. … It is from hearing those ideas that I’m comfortable stating that the average person has a very high threshold for being obvious (conversely, a very low threshold for being non-obvious).”

                I appreciate you sharing the context of your data gathering, so I am trying to not be too harsh.

                Do you really so no issue here?

                What would you say to someone modeling what constitutes a cute baby, based on a survey of parents on how cute their baby is?

                1. ben,

                  That really is some peak of a Mount S you have there.

                  You ‘trying to be gentle‘ while simply missing the point of what is being presented to you….

                  Here’s a hint: YOU are being schooled. YOU are not the school teacher.

  13. 1

    Re the first question: “What do you think of this case?” First, the defendant is lucky to be in Marshall rather than Waco. I also wonder if the defendants promptly did a good prior art search to find other exercise machine patents with similar features and promptly filed that art here and in an IPR petition of record, rather than just relying on the 12(b)(6) patent eligibility motion, that they may have gotten this case settled without this motion appeal cost, or precluded an Alice step 2 argument against the motion, irrespective of the alleged burden-shifting error, getting the appeal denied rather than possibly remanded?

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