by Dennis Crouch
In re Killian, — F.4th — (Fed. Cir. August 23, 2022)
This decision authored by Judge Chen and joined by Judges Taranto and Clevenger appears as something of a tour-de-force rejecting a large number of spurious eligibility arguments. The court seemingly made the case precedential to help avoid seeing these same arguments arise again.
Jeffrey Killian filed his patent application back in 2014 seeking to patent his computerized algorithm for identifying “overlooked eligibility for social security disability insurance” and other adult-child benefits. The basic approach is to get access to state records of individuals receiving treatment for developmental disabilities or mental illness from a state licensed facility. Those records are then compared against the Federal SSDI rolls. Once an individual is identified, the claims then call for information a GUI to open for a caseworker who inputs various information such as SSN, birth information, family information in order to determine eligibility for benefits. The examiner found the claims novel, non-obvious, and sufficiently definite. But, still, the claims suffered from the fatal defect of being directed toward an abstract idea. The PTAB affirmed the examiner rejection of all pending claims — concluding that the claims were directed to an “abstract mental process.” Although the claim recited various technology, the Board concluded that those were ancillary under Alice Step 1 (“insignificant extra-solution activity”); and under Alice Step 2, those additions were insufficient to transform the unpatentable idea into a patent eligible invention. On appeal, the Federal Circuit has affirmed.
Step 1. At Step 1 of the eligibility exception analysis, the court asks whether the claims are “directed to” an unpatentable exception, such as an abstract idea. In that process, the court endeavors to consider the claimed invention’s “character as a whole.” Here, it found that the “thrust” of the claims is collection and examining of data. Those are steps that humans do regularly in their own mind and, as such, the court found them an unpatentable abstract idea. The claims also recite various computer technology and use of input screens. However, the court the extra activity insufficient under Alice: A claim does not pass muster at step two by “[s]tating an abstract idea while adding the words ‘apply it with a computer.'” Slip Op. (quoting Alice).
Killian argued to the appellate panel that the eligibility standard applied by the USPTO was arbitrary and capricious–thus violating due process and APA requirements, inter alia. The court disagreed and provided two responses. (1) Appeal to Authority: The rules here come from the Supreme Court and therefore are not arbitrary & capricious; (2) Appeal to Reason: The Federal Circuit has provided sufficient guidance on how to apply the doctrine and how to figure out what counts as an abstract idea.
Although there is no single, inflexible rule for the abstract idea inquiry, our court has provided guidance as to what constitutes an abstract idea. We have explained that, first, “[t]he ‘abstract idea’ step of the inquiry calls upon us to look at the ‘focus of the claimed advance over the prior art’ to determine if the claim’s ‘character as a whole’ is directed to excluded subject matter.” Affinity Labs. Once we identify the “focus of the asserted claims,” we may consider whether the claims “fall into a familiar class of claims directed to’ a patent-ineligible concept.” Elec. Power Grp.
We have provided still further guidance for those familiar classes of claims. For example, in the context of claims to results, we have explained that claims that “simply demand[] the production of a desired result . . . without any limitation on how to produce that result” are directed to an abstract idea. Interval Licensing. In the context of mental processes … we have explained that if a claim’s steps “can be performed in the human mind, or by a human using a pen and paper,” and the elements in the claim do not contain a sufficient inventive concept under Alice/Mayo step two, the claim is for a patent-ineligible abstract idea. Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd., 955 F.3d 1317, 1327 (Fed. Cir. 2020) And we have explained that “[i]nformation as such is an intangible”; accordingly, “gathering and analyzing information of a specified content, then displaying the results” without “any particular assertedly inventive technology for performing those functions” is an abstract idea. Elec. Power Grp. We have provided further guidance for “cases involving software innovations,” where the abstract idea “inquiry often turns on whether the claims focus on ‘the specific asserted improvement in computer capabilities . . . or, instead, on a process that qualifies as an “abstract idea” for which computers are invoked merely as a tool.’ ” Finjan.
Our case law also provides guidance as to “inventive concept,” particularly in the context of claims for computer implementations of abstract ideas. We have explained that claims for methods that “improve[] an existing technological process” include an inventive concept at step two. BASCOM. And claims that “recite a specific, discrete implementation of the abstract idea” rather than “preempt[ing] all ways of” achieving an abstract idea using a computer may include an inventive concept. Id. But claims to “an abstract idea implemented on generic computer components, without providing a specific technical solution beyond simply using generic computer concepts in a conventional way” do not pass muster at step
two. Id. “Neither attempting to limit the use of [the idea] to a particular technological environment nor a wholly generic computer implementation is sufficient.” buySAFE.
Slip Op.
Kilian argued that prior eligibility precedent should not apply to him because he did not have the opportunity to litigate those cases. On appeal the court rejected that attempt to undermine classic common law methodology.
Killian argued that the search for “inventive concept” at Alice Step 2 is improper because the Invention Requirement was eliminated by the 1952 Patent Act. On appeal, the court noted first that the old “invention” requirement is different from the “inventive concept” element of Alice. And, take it up with the Supreme Court.
Killian argued that the “mental steps” doctrine has no foundation. On appeal, the court found that argument “plainly incorrect” based upon statements from the Supreme Court in Mayo (quoting Benson).
Killian argued that the PTO failed to provide any actual evidence that its computer usage was routine and conventional. On appeal, the Federal Circuit pointed to Killian’s patent application statement that the claimed method “may be performed by any suitable computer system.” That said, the appellate court appears to have accepted the implicit judicial notice from the Board that “operations of storing, analyzing, receiving, and writing data are primitive computer operations found in any computer system.” At this very basic level, these issues can really be seen as questions of law (and thus subject to precedential enforcement). “As the Supreme Court has explained, generic computer functions, performed on, as the application itself admits, any generic computer, do not provide an inventive concept.”
If there had been a true question of fact in dispute, then prior precedent regarding similar inventions would not automatically establish those factual conclusions outside of the context of issue preclusion. Here, the patentee’s “specification admits that the computer, which the Board correctly identified as the additional element of the claims, is well-understood, routine, and conventional, no further evidence is needed.” Slip Op.
Rejection affirmed.
Question: Can you do anything to save Killian save his claims? [94488_14450042_03-29-2018_CLM]
= = =
Burman Mathis argued for Killian; Monica Lateef (USPTO Associate Solicitor) argued for the Agency. Lateef is also a member of the Federal Circuit’s advisory council.
How about a Vanda-style amendment to make the claims allowable: “providing SSDI to the person”? (Never mind the divided infringement issue.)
Also, I would love to see this one get enforced (facetiously)–stopping people from getting SSDI…
Professor Crouch, the vast number of Chen’s misrepresentations is truly astonishing
On page 16 of the Panel’s Decision in Killian, the Panel falsely states that “[t]The Supreme Court did not hold in Diehr, Bilski, or any other case that ‘steps performed in a computer are not ‘mental steps’ even if the steps performed in the computer are identical to steps that could theoretically be performed by a human mind,’ as Mr. Killian contends”
However, the entire quote by Killian is the exact opposite of what he is accused of saying. In fact, the sentence in its full context during a discussion of the Diehr holding is as follows:
“That is, despite Justice Steven’s vigorous descent in Diehr, the Supreme Court majority rejected the “mental steps” doctrine. Thus, it is settled law from the top court in the nation that steps performed in a computer are not “mental steps” even if the steps performed in the computer are identical to steps that could theoretically be performed by a human mind.”
This is a shameless decision based on lies
Please excuse my density here, but I do not understand where you perceive the court’s quote to be a misrepresentation of Killian’s argument. In what way does Killian’s actual quote contradict the court’s presentation of the quote?
The big picture on this one (IMHO) is that this is an information processing method. One can make a good argument that it is obvious.
But abstract? How in the world can anyone say that the following is an abstract idea: “a search algorithm for identifying people who may be eligible for SSDI benefits they are not receiving”.
Any patent claim can be held to be invalid under this “directed to an abstract idea” analysis.
It claims a method performed by a machine that takes time, energy, and space.
It is definite and enabled.
So there is simply no boundary to what one can claim to be an “abstract idea” under Alice. That is the core of the problem.
My advice (but don’t take it as legal advice) would be bring it back into prosecution and see if it can be aligned with any of the example eligible claims. That is the only way I’ve been getting out of 101s in 36xx.
Night Writer:
Always good to hear from you.
No 103 rejection because we are tracking the parent for a triggering event. Nobody has ever done this approach in the history of SSDI. The perquisite data is not even collected.
This approach has been overlooked by millions of professionals and experts for decades, it is not obvious.
I think we will get a remand back to the USPTO. But the USPTO has to look at the evidence, the evidence their Board said we should submit and was already on the record.
concerned: Yes, well it doesn’t really matter if you can’t get over the 101 rejection.
I have an application like yours I am prosecuting where the examiner admits there is nothing close to it in the prior art and yet has maintained a 101 rejection. It is maddening. How can something be well known (which seems to be required in Alice) and not obvious?
Dude, it’s worse than you think
I spent dozens of pages demanding the CAFC acknowledge that the PTAB provides no evidence that the underlying business method is abstract.
The CAFC outright lied and said there was support, but curiously declined to show where
Liars all
You are assuming that Chen read any of it and just didn’t look at the claim and said to the law clerks figure out a way …
I assume Chen farmed it all out to a temp agency, and the janitor reviewed it
“How can something be well known (which seems to be required in Alice) and not obvious?”
You think Alice requires everything in the claim to be well-known for the claim to be ineligible?
What year is it for you? It’s 2022 for me.
Ben, again, a sneaky little misrepresentation from you.
I never said “everything in the claim” and I quoted from the opinion what they found the “abstract idea” to be.
I live in a world where I can be sanctioned for lying.
Obviousness is relative to the whole of the claim.
So if you say “how can X be conventional and not obvious” based on the whole claim Y being not obvious, did you not intend to imply X=Y?
I don’t understand what point you’d be making if X!=Y.
Ben, how can the claim be obvious if the abstract idea to which the claim is supposedly directed is not itself obvious?
It may be that the abstract idea is obvious but the claim is not.
But it can’t be that the claim is obvious but the abstract idea is not.
“But it can’t be that the claim is obvious but the abstract idea is not.”
I agree.
It doesn’t follow that the abstract idea need be well-known for the claim to be ineligible.
Alice doesn’t require that the whole claim be well-known to be ineligible.
I repeat:
Ben, again, a sneaky little misrepresentation from you.
I never said “everything in the claim” and I quoted from the opinion what they found the “abstract idea” to be.
Respectfully, I doubt that will work, but Killian need to address this in a continuation application a the PTO will consider the original application dead
Been there, done that
“So there is simply no boundary to what one can claim to be an “abstract idea” under Alice. That is the core of the problem.”
Actually, there is – but its based on evidence. I’m fighting tooth and nail to get the CAFC to acknowledge that there’s no evidence to support the PTAB’s holding, but Judge Chen outright lies in his opinion
Dear Professor Crouch,
Your article, while scathing, it not based on fact. Judge Chen’s distortions of the record is astounding.
For example, despite Chen’s claim that I didn’t expound on the fifty-five documents the PTAB refused to consider (citing SmithKline), there are literally 999 words in my two briefs discussing the issue.
Also – go back and read the In re Bilski en banc decision and compare it to the Supreme Court’s opinion.
“go back and read the In re Bilski en banc decision and compare it to the Supreme Court’s opinion.”
Sage words — especially for those who insist that “whatever the Supreme Court says must be ‘The Law’ — as what the Supreme Court has said started the Gordian Knot of contradictions.
Helluva job B!
My specs did not admit that the computer was routine, well understood and conventional. This statement seems to be not correct. Go look for yourself. Application 14450042.
Martin H Synder: “Yet to me, the current interplay between 103 and 101 is intolerable. How the examiner of this patent found it novel and non-obvious is beyond me.
Anyone off the street, given the problem of finding disabled people who don’t get SSI, would suggest comparing available databases holding data about disabled people.”
The examiner read my Official Record and arguments, that is why no 102 and 103 arguments. You make a very ignorant statement about SSDI eligibility. How would you overcome consent from parties not willing to consent or parties committing fraud?
link to patents.google.com
From the specification: “It should be understood that the calculations may be
performed by any Suitable computer system, Such as the one
shown in FIG. 2.”
Mr. Crouch:
Thank you. And that would be a computer that is interfacing with other governmental agency network and meeting their security requirements for confidential data. Not an “off the shelf” generic computer.
Suitable is the key word.
Right – the court took that statement made it appear to be a greater admission than it really was.
Many thanks again.
The court also said my process was not transformative.
Here we have a dedicated computer network designed specifically for the Social Security Administration. People are being overlooked for their right SSDI benefit because of an application error or omission (,many reasons). The oversights are not being caught for months, perhaps years.
My process is interfaced into the Social Security network and the oversights are caught and corrected.
A person who was not getting a SSDI check has been transformed into a SSDI beneficiary directly by my process and only from my process.
How is that insignificant post solution activity?
“Pre,” “post,” or “during,” the partitioning of a claim to dismiss ANY aspect as “extra-solution” is a direct contradiction to the Court’s own “requirement” to take the claim as a whole.
What began as a slipshod – read that as
L
A
Z
Y
way of saying that the patent weight was not “much,” has turned into a practice the Court itself said not to do.
Oh wait, the Court has contradicted itself?
How could that be?
“Right – the court took that statement made it appear to be a greater admission than it really was.”
Professor Crouch, this is what is known in non-legal circles as a “lie.”
… and somehow, attorneys — any and all attorneys — are supposed to be ok with this, because it is coming from a court…?
Let me remind folks (other than you, B), having ethics means having a spine.
Come on. The application explains that Fig. 2 shows a “suitable” computer system. This “suitable” computer system (as illustrated in Fig. 2) comprises (1) ROM, (2) RAM, (3) a CPU, (4) memory, (5) a display, (6) a keyboard, and (7) a network connection. This is just about as “off-the-shelf” as a computer can get. If you really think that there is something special about the computer that is to be used for your claimed method, where did you describe those special features in your application?
You can hardly fault the PTO for not giving credit for the special features of a computer when those special features are never mentioned. You are the one who chose to file an application in which the computer that is designated as “suitable” for use in your method is described (fig. 2) as just about as “off-the-shelf” as it is possible for a computer to be.
This is an additional argument that the application lacks the essential 112 “enablement” required to support claims or alleged invention distinctions by claim interpretations. Arguments made “in the record” for some kind of special novel computer and/or software which is not disclosed in the specification itself do not solve that problem or the “abstraction” rejection.
The “how to” is in the representative claim, all 14 steps. We did not have a 112 rejection.
And the computer requirements Dozens mentioned were just the starting point and for illustration purposes. The other specs point out no design and development until the signed agreements.
We cannot be penalized for computer hardware and software requirements that are unknown at patent filing, but will certainly be imposed at time of entered agreement.
So, if you think naively our figs are the beginning and end, that is wrong.
However, our specs clearly state design and development are dictated by the various State and Federal agreements.
It will not be an “off the shelf” generic computer.
Malcolm’s been pretty quiet on this particular case, but your comment here reminds me of a point of mine to him (that he — or any other anti-computing-patent person) has never answered.
Malcolm’s penchant for ‘exacting physical difference IN claims’ was met — in kind — with a request for this “infamous” generic computer to be Described in that level of detail for “exacting physical description.”
How else would any (honest) person be expected to meet ‘Malcolm’s demands’ if one is not given a baseline from which to describe?
Of course, I have also preempted this (rather silly) “generic computer” ideation with reference to The Grand Hall experiment — it is likely a decade or so old now.
The gist of that Grand Hall experiment was to introduce into a grand and empty hall two physically identical computers, each with NO software whatsoever.
In one — and only one — of the two, the computer is allowed to be changed (and thus no longer a generic computer) and is configured with software.
Only after this point would this computer be compared to any claimed computing claimed invention.
Of course, as this is simply NOT a new concept, I have also tied this to the necessary understanding in the computing arts that ‘wares’ are each patentably equivalent to each other: “soft,” “firm” and “hard” are merely design choices.
It is very easy to note who is inte11ectually honest and who is simply anti-patent as to whether or not these points are acknowledged and integrated into the discussion.
If the government sets requirements for computers accessing their network, wouldn’t computers meeting those requirements necessarily be known at that time?
How would you overcome consent from parties not willing to consent or parties committing fraud?
I would not probably start with the patent system, but if I did, I would be looking for improvements that people with ordinary skill in the disability insurance arts would not be expected to make on their own, given suitable access to the identified resources.
Because surely merely disclosing which databases may have the data you want and suggesting that you integrate with them is not a patentable process.
But good for you for making a run at Alice. Another brick in the wall….
Dozens: The specialty of this suitable computer is the necessary security the Administrating Agencies (fig 1) will put on the network and spec [0119] regarding waiving of consent. (Mr. Snyder there is the answer to my question to you).
Spec [032] of the non-provisional application incorporated the provisional application. On page 10 of the provisional application discusses this security, what is needed from all parties, and BEFORE any software is added.
Off the shelf computers are not suitable as no security (needs added) and certainly no authority to waive consent (needs added.)
The Court said we only made a skeleton argument regarding the 55 separate documents of evidence nobody has addressed to date. The blue brief dedicated 999 words to the same. The court referenced SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (explaining that a party forfeits undeveloped arguments on
appeal). That case says we only have to reference where in the “record” especially when the brief presents a passel of other arguments . . . Judges are not like pigs, hunting for truffles buried in briefs.”).
The blue brief on page 22 of 78 said exactly where to find this evidence (June 10, 2017 in the Official Record) and the oral argument at 1:30 mentions what the evidence says.
We are appealing.
Patent applications can be defective for lots of reasons. Examiners and courts need not detail their reasoning for citing one over another in order to reach a decision to deny/invalidate.
Yet to me, the current interplay between 103 and 101 is intolerable. How the examiner of this patent found it novel and non-obvious is beyond me.
Anyone off the street, given the problem of finding disabled people who don’t get SSI, would suggest comparing available databases holding data about disabled people.
Meanwhile, this case further turns Alice toward being a mere proxy for determining the state of the art, while giving license to judges to simply feel the invention.
The sophistry of saying this is right because the Supreme Court can’t come up with a better answer is….top shelf.
How the examiner of this patent found it novel and non-obvious is beyond me.
Tech Center 3600 works under the principle of why bother spending any effort on a 102/103 rejection, when a 101 rejection will take care of 95% of my workload?
The worst 102/103 rejections, by far, I have ever seen come out of TC3600. It isn’t even marginally close.
Your comment is awaiting moderation.
August 24, 2022 at 12:28 pm
When one allows an “Ends justify the Means” approach, the Means are to be expected to fall to pieces.
(a George Carlin word was initially there instead of “pieces”)
+10,000 for Wandering.
I’ve never seen such wild 103 arguments as they make in the 36xx AUs.
They make absolutely no sense.
““inventive concept” at Alice Step 2…”
That in itself is abstract, vague and indefinite. One can talk about an actual invention, including its elements.
Or, one can talk about the inventive concept.
Contrast discussing an actual invention, vs. the “concept” of it.
The latter is indefinite, abstract.
So, what is present is a rule involving abstract terms, being used to wrongfully discount an actual invention.
It is impermissible to read abstract requirements into rules, unequally applied due to the indefiniteness.
Section 101 makes it clear that the conditions and requirements are found elsewhere in the title, not in sec. 101 itself.
They only harm themselves and their issue, but they’re blinded by something to realizing its full implication or lack foresight to see the eventualities. Typically they come to regret their actions, when its far too late, history shows again and again ad nauseum
Who loves you and who do you love?
Well, Killian’s got no love for 101 case law and CAFC’s got no love for his claims.
The (mere) panel appears to have overturned the Berkheimer decision.
(We’ve moved the goalposts to any combination of computing elements if those elements — strictly taken alone — may be deemed “conventional.”
Watch out folks — this type of logic is not constraintable to only computing inventions.
(Remember that big box of protons, neutrons, and electrons of mine?)
“The Federal Circuit has provided sufficient guidance on how to apply the doctrine and how to figure out what counts as an abstract idea.”
This from the same group of jokers who’ve virtually (correctly so) begged — begged — SCOTUS to provide useful, explainable, actionable eligibility guidance.
A lie repeated over and over and over again — even one that’s been made precedential — doesn’t transform the lie into truth.
Making it precedential changes nothing. Nothing.
It’s still a lie. And they know it.
They should be ashamed.
Congress – are you paying attention?
Basically, here Chen has called Tillis a
L
I
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R
This from the same group of jokers who’ve… begged… SCOTUS to provide useful, explainable, actionable eligibility guidance.
I do not know that this is as much of a burn as you imagine. The last such plea was in 2019. That was then and this is now. There is a more evolved body of case law that has emerged since then. It is not crazy for them to have begged for more guidance back then, but to conclude that such guidance does exist now.
For my part, I consider §101 law to be much less confusing now than I found it back in 2012 when Mayo first dropped. It is still quite nearly as appalling, but far less confusing. A decade ago, I used to think “is X categorically unpatentable in view of Mayo? Is Y categorically unpatentable in view of Mayo? Is Z? Is K? Is W?” Now we have a great deal more clarity (the answer is almost always “yes, X is categorically unpatentable”). Just because the judges are cagey and refuse to say explicitly that X is categorically unpatentable does not mean that we cannot meaningfully tell our clients “do not waste your time trying to patent your invention in art field X, because the CAFC has ruled that art field categorically unpatentable.” It is in the nature of precedent that principles can be extracted from an assemblage of holdings, even when those principles are never articulated in so many words.
It is not a cheerful clarity that has built up in the time since the CAFC’s last en banc plea to the SCOTUS. It is a species of clarity, nevertheless.
^^^ talk about spurious
That is a pretty thorough trashing of Killian’s arguments by CAFC. Wholly expected. SCOTUS will surely deny cert if he tries that route, too.
They should probably rethink this: “We have explained that claims for methods that ‘improve[] an existing technological process’ include an inventive concept at step two. BASCOM.”
Plenty of their cases seem to have a method that improves an existing technological process, but if you get the wrong set of judges, it doesn’t seem to matter. Short list: a garage door opener; a video-transcoding patent; a camera; given time, I could easily point out 10 more.
Bottom line: the reason why Iancu attempted to give the patent examiners multiple off-ramps is because the courts have created a literal Gordian Knot of conflicting law.
Nothing in this decision cuts that knot.
Plenty of their cases seem to have a method that improves an existing technological process, but if you get the wrong set of judges, it doesn’t seem to matter. Short list: a garage door opener; a video-transcoding patent; a camera; given time, I could easily point out 10 more.
One person’s improvement to technology is another person’s improvement to an abstract idea using technology. It all depends upon the desired result. The case law is set up so that the desired result (thumbs up or thumbs down) can be arrived at based upon a subjective belief as to improvement.
That point aside, I don’t see how these claims could be declared to be an improvement to technology.
Do we have a technological arts test?
Hint: no such thing has been written by Congress – or is reflected by the term Useful Arts.
Stevens dissent dressed up as a concurrence has not changed.
Do we have a technological arts test?
It is one of the offramps that the Federal Circuit provides, and my comment was directed to that specific offramp.
As an off-ramp (read that as sufficient but not necessary), I don’t have a problem with “technology” — but that clearly is different than a “must fit” technological arts test.
My point stands.
I really like that distinction you observe, WT, as a litmus test of eligibility, that:
“One person’s improvement to technology is another person’s improvement to an abstract idea using technology.”
Because it immediately rings true and so exposes nicely how poorly adapted the notion of “abstract idea” is for determining eligibility.
Did you formulate it yourself, or are you merely repeating what everybody is now saying?
Did you formulate it yourself, or are you merely repeating what everybody is now saying?
That was created by myself. Here is another:
One person’s incorporating limitations from the specification is another person’s interpreting limitations in view of the specification.
These statements reflect my observation that sufficient case law exists (on many issues in patent law) that a judge need only characterize an issue one way or the other to obtain the judge’s desired result.
BobM, I wrote an article on that garage door opening opinion Chen wrote as well as an article on that camera case Taranto wrote.
Chamberlain was an exercise in dishonesty. My client was “chen’ed”
Zhang was an exercise in abject stupidity – especially if you have a history in photography prior to CCD-based cameras.
Just because everyone says Alice is vague and idiosyncratic doesn’t make it so.
+1 at juxtposing this article with the next one:
In one, the applicant’s attempt to link 50 obsolete state database schemas with an equally obsolete federal database schema is considered routine and conventional, and thus, completely unworthy of patent protection …
In the other, the Federal Circuit realizes that simply making its old appeallate records available online is so difficult a task as to be “impracticable.”
+1 at juxtposing this article with the next one:
LOL — good point.
Ha!
I’d think you’d have a point if Killian actually implemented the claimed system.
What evidence do you have that he hasn’t?
Why would an examiner – ANY examiner leap to such a “actually implemented” view?
Can you do anything to [help] Killian save his claims?
Not anything useful, no. It is possible that there are amendments that could push this across the line to eligibility under the current legal standards, but not without gutting any commercial relevance that the claims might have.
In fact, there may not even be a set of amendments that could make these claims §101 compliant, because I have doubts that there is even utility within the patent law sense here. If all you have to show for your efforts at the end of method is that you know something about money, is that really part of the “useful arts”? I do not know that we actually have still applicable case law that answers that question.
“for your efforts at the end of method is that you know something about money, is that really part of the “useful arts”? I do not know that we actually have still applicable case law that answers that question.”
Let’s see – did the Bilski case on the LOS1NG side (Steven’s dissent dressed as a concurrence) get reclassified by the Supreme Court to be the winning holding?
Surely the claims at least have patent law utility. But eligible subject matter? I think it’s hopeless.
The void-for-vagueness argument against Alice failed. See slip op. at 11. Another futile constitutional argument tried and failed.