“An abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016).
I really have no idea what to make of this quote from Judge Reyna’s opinion, but the PTAB Judges Appear to love it. More than 600 PTAB decisions have included the full quote over the past few years. The citation appears to come into play in two occasion: (1) when the PTAB makes a slight shift from what the examiner identified as the relevant abstract idea; and (2) when the claims appear to be directed to something very specific, but that still fails the Alice test.
In general, if the PTAB quotes Ameranth, it finds the claims abstract. Out of 100 recent PTAB eligibility decisions quoting Ameranth, only 1 sided with the applicant on eligibility grounds.
From the copyright realm, we have this describing different levels of abstraction: “a computer program can often be parsed into at least six levels of generally declining abstraction: (i) the main purpose, (ii) the program structure or architecture, (iii) modules, (iv) algorithms and data structures, (v) source code, and (vi) object code.”
Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 835 (10th Cir. 1993)
The first, the main purpose, is going to be unprotectable, the last two will be protectable. The middle, all gray. I think that is the point.
Oh brother more nonsense.
It is at least good to have a real conversation about the ladders of abstraction.
All these questions have been addressed in the history of patent law. The answer is that claims deserve the scope of enablement.
They deserve the scope of enablement of “(i) main purpose”, which should be termed “main functionality”. If these are too broad, then a 103 argument is present.
You see the problem with your nonsense is that it is a**backwards. The issue is that claims are supposed to be presumed to valid and you have to find a rejection.
Your argument (which is exactly what the CAFC is doing) is that there is an implied abstraction level that is too high (what used to be called pioneering patents) and the CAFC can just invalidate the claims based on their personal assessment of the claims.
It is good, though, that this is starting to be discussed.
And you made my point. Had Reyna (the completely ignorant judge) made the ladders of abstraction explicit in his opinion, then it would have become apparent that the CAFC are policing the levels of abstraction of the ladders of abstraction with Alice.
And ask yourself what is the rejection of a claim that says you are the top of the level of abstraction so I am invalidating the claims?
Where is that in the statute? Where is that in the history of patent law other than these bizarre Benson/Alice cases that are logically and scientifically ridiculous?
The ladders of abstraction lay bare to all to see that the CAFC is policing a level of abstraction that is enabled ’cause they feel it ain’t right to have broad claims even if they are enabled and there is no prior art.
“It is good, though, that this is starting to be discussed.”
Did you notice that even Malcolm appears to want this to be a ‘non-controversial’ thing?
Of course, Malcolm is still of the “the only valid claim is an exceedingly picture claim variety,” and he never bothered to address my counter points to him in regards to “comprising” and exacting physical structure claims (and he still refuses to accept the basic factual nature of software merely being a patent-equivalent design choice of Wares), but hey, baby steps from Mr. P00py Diapers.
“The first, the main purpose, is going to be unprotectable, the last two will be protectable. The middle, all gray. I think that is the point.”
Is this your copyright view?
I ask because it certainly is not applicable to a patent view, and given that patents and copyrights protect entirely different aspects, it simply is not clear what YOU think is the point vis a vis patents.
>>“An abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016).
I think the significance of this quote is that Reyna isn’t using the term ladders of abstraction that is used in engineering. Probably he wants to avoid that term as it invalidates the use of Alice and puts “abstract idea” into perspective.
No person trained in science would violate science/engineering like this without feeling guilty. It takes a person like Reyna to perform these machinations to avoid correctly discussing the ladders of abstraction. But then Reyna would have to ask the question of what is at the bottom of those ladders?
“I think the significance of this quote is that Reyna isn’t using the term ladders of abstraction that is used in engineering. ”
He isn’t even using the term as understood in patent law either.
Don’t forget – for every time you advanced your “engineering” argument, and Greg DeLassus feigned ignorance, I pointed out that there was a similar legal understanding to that term (even provided the text book — see here at post 2.1.1.2).
Why is the fact that things (including abstract things) can be described at different levels of “abstraction” so difficult to accept by some patent attorneys and professors but not all of them?
In this context, “level of abstraction” just means “level of detail” or “level of generality.” That doesn’t seem very controversial.
We all know what bothers a certain subset of the patent bar who never stops complaining about their precious patent rights not being continually expanded.
“patent rights not being continually expanded.”
You have your directions askew yet again.
It is not unhappiness with patent rights not being continually expanded, it is unhappiness that those rights — per the direct words and intent of the Act of 1952 (which rebuked an earlier anti-patent Supreme Court) — are being diminished by the modern Supreme Court (and its fire-hosed, simians-in-a-cage trained CAFC).
Of course, you are fully aware of this and are only dissembling – as usual.
What percentage of all Current PTAB decisions still involve broad claim “abstraction” rejections? Didn’t the PTO Guidelines for such Alice 101 unpatentable subject matter rejections greatly reduce such examiner rejections?
The great answer: it depends.
We still face huge swaths of “it’s my fiefdom” with (apparent) art unit resistance to the 2019 PEG.
I don’t have statistics, but I was surprised that there wasn’t more of an attitude change at PTAB after the 2019 guidance.
I guess Iancu only cared about getting allowances out the door.
Combined with Ben’s anti-software screed, here, he simply blames the wrong person.
Ben is the type of examiner that needs to be expunged from the patent office.
I am not American and I do not wish to insinuate that I know better about American patent law than SCOTUS.
But I am afraid that the “abstract idea” test is simply indefinite, because the independent claim of patent is always, necessarily, abstracted away to some degree from whatever the inventor has actually formed in his mind. If that were not the case, why would anyone ever bother to draft dependent claims?
You are not off – see 2.1.1.2 below.
Most of my posts in the previous thread are now stopped.
So then . . . there can be different levels . . . of that which is . . . undefined.
The Emperor has no clothes . . . and Alice doesn’t live here anymore.
Perhaps they should read my essay Nothing is Patentable.
Why don’t you post a link.
You never know we might decide to tear it apart for entertainment.
A link would be appreciated (even as Risch is one of the few reasonable academics out there).
link to papers.ssrn.com
Danke schoen
I will note that the paragraph AFTER the item quoted actually twists a statement by the Supreme Court 180 degrees from its original meaning.
To wit:
“The Board’s slight revision of its abstract idea analysis does not impact the patentability analysis. The Supreme Court has recognized that “all inventions… embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Alice, 134 S. Ct. at 2354 (quoting Mayo, 132 S. Ct. at 1293). But not all claims are directed to an abstract idea. See, e.g., Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334–36 (Fed. Cir. 2016); McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1316 (Fed. Cir. 2016).”
The reference to the Supreme Court’s “ALL INVENTIONS” was NOT meant to allow ALL INVENTIONS to be deemed to be abstract, and instead was a warning against that very action.
Very good point anon.
But Reyna is perhaps Obama’s most outrageous appointment. A person with no patent law experience. No experience in science or innovation.
He was appointed to take down the patent system.
I find it offensive that a person like this is on the CAFC. Most of us have spent a life time understanding science, technology, innovation, and patent law. And Obama appoints someone that would need at least 10 years of study to catch us. And we are supposed to respect Reyna’s opinions. Just another degrading outrage. Thanks Obama.
It strikes me that the problem for the inferior courts is the Olympian decree from the court at the summit that “not all claims are directed to an abstract idea”. What?
I mean, I have spent the last 40+ years striving to abstract the “inventive concept” which defines my client’s invention, the patentable subject matter and the contribution to the art. I need it because that is what the statute requires of me that that is what one reporuces in material form as ….wait for it…claim 1. I want that “concept” to be as “abstract” as the facts will allow, in order that my client secures the full scope of protection that their inventive insight permits.
So what I want from SCOTUS is an explanation of the difference between a patentable “concept” and an ineligible “idea”. I think I might have to wait for a long time, during which the judges will continue to be obliged to rely on their gut feelings.
A more workable test than “abstract”, in tune with 101’s “useful”, might be: Does the claim define a solution to a technical problem? Or does it merely define the problem to be solved?
>So what I want from SCOTUS is an explanation of the difference between a patentable “concept” and an ineligible “idea”.
IDK. Doesn’t that boil down to whether or not something is a process, machine, manufacture, or composition of matter, or any new and useful improvement thereof?
I’d even be so bold as to assert patentable concepts should include new uses of a known process, machine, manufacture, composition of matter, or material.
+1 – maybe just follow what Congress wrote (when Congress rebuked the Supreme Court in the Act of 1952).
“I want that “concept” to be as “abstract” as the facts will allow, in order that my client secures the full scope of protection that their inventive insight permits.”
MaxDrei, here in the States (as has been noted for quite some time), this is called the Ladders of Abstraction. I (among several) have explained this legal concept in great depth, but if you need (again) a primer, see Slusky’s “Invention Analysis and Claiming.”
Don’t you think it to be disrespectful to act as if this point has not been presented as often as it has?
“So what I want from SCOTUS is an explanation of the difference between a patentable “concept” and an ineligible “idea”.”
Good luck with that. The actual problem that you ‘edge up to’ (but not quite elucidate), is that there is NO SUCH thing as a difference between “concept” and “idea.” But to state that necessarily brings you to the fact that the Supreme Court is attempting to legislate from the bench (in an ultra vires manner), and that they are usurping the role of Congress in REwriting 35 USC 101 (as opposed to any ‘interpretation’ of what Congress actually wrote.
“A more workable test…, might be…”
And here you go, off the EPO Uber Alles end, doing your own ‘legislating’ to fit your desired Ends. That’s no better than what the Supreme Court has done.
And yes, it is noted that you inserted “technical” in an insulting manner to disregard the difference that our Sovereign has set forth.
Again.
40+ years – around your same small circle, has only worn the path of that circle so deeply, that you can only grasp the rut of that circle.
Without doing any research… I guess I could buy that the ordinary meaning of word “process” requires some sort of technical operation and/or result. The word just screams ‘industrial’ to me vs. alternatives like activity, task, or undertaking. Ditto for “machine” and “manufacture.”
If nothing else, I doubt Congress wanted 101 to include something like “1. A method for proposing marriage, comprising….”
Even an Old Curmudgeon can begin to see the light.
I don’t know about that. If I had a vote, I’d overturn Mayo, Alice, and Myriad. Probably even Bilski.
Ben here is a Link to a section of the EPO’s “White Book” the established case law of the Bds of Appeal of the EPO. The section title is “Problem Inventions”, para 9.11 of the part of the book that deals with the subject of “inventive step”.
Hope it helps you.
link to epo.org
Curmudgeon, are you not indulging in a bit of wishful thinking. I mean, it is not only engineers that these days talk about “going through the process”. One finds processes in all fields of human activity.
What the writers of the patent statute were using the word “process” to mean though, that’s another thing entirely. As they went through the process of thinking about, drafting and then writing the statute, did they suppose that their word “process” would be construed against the background of the English Statute on Monopolies with its choice of words “manner of new manufacture” (which embraces manufacturing processes but not processes in other fields of human endeavour).
…yet again, MaxDrei, you are disrespectful and downright rude as to what our Sovereign has chosen.
“Without doing any research”
I have done the research and understand the foundations of patent law very well.
Those foundations do NOT rest “process” (see 35 USC 100(b)) on either of a “technical” nature or as being necessarily wed to the ‘hard goods” categories.
“Does the claim define a solution to a technical problem? Or does it merely define the problem to be solved?”
How do you guys resolve this without any reliance on gut?
Ben, it’s not unrelated to the enquiry into enablement and sufficiency. How is that enquiry conducted? By the reactions of your gut? By asserting that you know it when you see it?
Or perhaps by reference to the level of knowledge of the notional PHOSITA.
Why is the fact that things (including abstract things) can be described at different levels of “abstraction” so difficult to accept by some patent attorneys and professors but not all of them?
In this context, “level of abstraction” just means “level of detail” or “level of generality.”
I guess it’s just not clearly to me how the PHOSITA helps gauge whether a claim “defines” a solution or a problem, unless of course you’re relying on the gut feeling of one of ordinary skill in yhe art.
Got a link that explains the analysis?
Ben see 211212 above. My post went to the wrong place in the thread.
But here again is the Link:
link to epo.org
My immediate thought:
link to xkcd.com
Comments are closed.