by Dennis Crouch
In re: Janke, Docket No. 22-1274 (Fed. Cir. 2022) (R.36 Judgment)
Mr. Garth Janke is a former HP engineer and now a patent attorney at Garth Janke LLC. Janke is also an inventor. Most recently, he has been pursuing patent protection on his clog-free leaf rake. His Dulcinea. I live in a forest and have a basic rule against raking or blowing leaves–otherwise my grass would grow and then I would need to mow. But, to each his own.
Janke’s invention can be seen in the two drawings above. The Fig. 1 is a traditional prior art rake. Janke’s improvement is shown in Fig. 3. The improvement is to put a hole toward the end of each rake-tine. A user can thread a string-trimmer line through the holes to help prevent leaf-clog. Janke’s claim 1 is directed at a rake with holes through the tines. And he did a nice job of making clear to everyone “the holes through the tines are the only thing about the product of Claim 1 that is new.”
But, Claim 1 isn’t at issue in this appeal. Rather, the appeal focuses on the steps of constructing the rake, which the PTAB concluded lacked eligibility. Claim 21 is directed to putting a 3-d model of the rake on a computer; Dependent claim 26 is adds a step of actually building the rake by printing-out the model using a 3D printer.
21. A process for enabling a clog-resistant feature in a hand-held leaf rake, comprising installing a first mathematical model on a computer [that represents the rake with holes in the tines].
26. The process of claim 21, further comprising applying the first mathematical model on a commercially available 3D printer to result in transforming the first mathematical model into a real leaf rake head product as defined by the first mathematical equations.
The procedure of the case is a bit wonky. Janke agreed with the examiner and the PTAB that the claims lacked eligibility under Section 101 – as interpreted by the Supreme Court. The PTAB thus complied and affirmed the examiner rejections. Janke then brought his appeal to the Federal Circuit, again beginning with an opening statement against his interest:
Appellant agrees with the Patent Office that the Claims 21-35 on appeal fall within the judicial exceptions to the 35 U.S.C. § 101 statutory allowances for patent-eligibility arising from Gottschalk v. Benson and Parker v. Flook.
The brief went-on to argue that two decisions are wrongly decided because and that they create a difficult threshold problem. Representing himself, Janke asks the Federal Circuit to answer the following question:
Starting with the mathematical model itself, i.e., the “first” mathematical model of the leaf rake head product recited in Claim 21, then considering the additional limitation in Claim 21 of installing the model on a computer, then considering the additional limitation in Claim 26 of applying the model on a 3D printer to result in making the product, and finally considering Claim 1 to the product itself, when does the claimed subject matter become patent eligible and why?
Janke Appellate Brief. On appeal, the Federal Circuit did not bite, but rather has simply issued another Rule 36 Affirmance without opinion. I expect Janke will climb back on Rocinante and continue his fight to the the Supreme Court.
Why not place a statement in the specification saying that the claims cover only non-abstract implementations, use your lexicographer super-power to define “non-abstract” as the converse of “abstract”as defined by the courts, and simply add to the claim, “wherein the method is performed in a non-abstract rather than an abstract manner.”
I had to chuckle as I cannot tell you how often I see this exact type of thing on MANY of the low quality specifications that are written by others and transferred to our firm in an attempt to salvage (humbly, our firm has a great reputation for being able to salvage — based largely on my abilities), and I can tell you that your suggested phrasing has never made it into my positions.
Getting!? It’s been quixotic from the moment Justice Thomas confused subject matter eligibility with patentability in Alice.
I claim: the universe and every conceivable method and composition within it, across all possible time scales, wherein said universe comprises my non-obvious refrigerator magnet.
Sweet – obvious (of course) in view of my Big Box of Electrons, Protons, and Neutrons.
I think that it is fair to say that we are reaching the Quixotic stage of the §101 fight. Cases like this one and the recent In re Killian show inventors who feel (somewhat justifiably) aggrieved, who are willing to make silly, frivolous, and/or outrageous arguments just to provoke a reaction from the judges.
The conceit of both cases (and others, but Janke and Killian are the two recent enough that I can still remember the names) seems to be that the appellants have spotted one or more absurdities in the current §101 jurisprudence (have not we all?), and they think that if they lay this absurdity in front of the CAFC, then the judges will be shamed into tearing the whole monstrous edifice down. I expect that deep down they realize that this is not a realistic outcome, but indignation prompts them down this road, mostly as a means of venting their spleens.
It is noteworthy that Killian had an attorney willing to field the appeal pro bono, while Janke was proceeding pro se. Both understood, in other words, that the appeal did not make economic good sense. In neither case was it really about the money. It was about getting a judge to say—on the record—“this §101 stuff is all nonsense.” Of course, plenty of judges have said this by now, but these appellants wanted the judge to say it to them personally.
There is no shortage of individual inventors who feel aggrieved by the current state of §101 (and rightly they should!). It costs very little to prosecute a pro se appeal (look at the fillable form that Prof. Crouch linked above). Therefore, I expect that we will see many more of these Quixotic and somewhat self-indulgent appeals over the coming decade. I wish that one or more of them might actually accomplish something, but there is little evidence so far to bolster such a hope.
Dozens, what you describe is actually a (relatively common) way that change happens.
Some nobody bicycle mechanics decided that they wanted to build a flying machine, and they did.
Some nobody college dropouts decided that they wanted to build an operating system for cheap computers, and they did.
Some nobody Birmingham pastor decided to lead a freedom movement based- in part- on what a then-nobody little man in India did decades previously.
They all knew in their bones that what was generally thought to be true was actually wrong, and that’s that way lots of people feel about the current 101 mess.
As Night points out, 3D model maps for printers are machine components- no more or less- and should be eligible for patenting. But of course since mere variation can’t imbue novelty, unless its a new kind of modeling, every different 3D model is obvious regardless of the novelty of the thing being modeled…
Now marty, here you go again wanting to jump into the terrain of battle that you just do not understand.
The concept that you are reaching for — and badly missing — is covered by the important exceptions to the printed matter doctrine.
Your view here would render ALL inventions obvious (once you change one molecule, you have changed them all; once you have added one widget, you have changed them all).
Different machine components – for different machines — do not render the concept of machine components obvious.
Maybe NOT view the legal terms in your colloquial manner.
Lordy So So Bor ing.
link to casetext.com
It is actually humorous that you post a link to one case AS IF that shows you understand the terrain.
Your ego speaks only to the height of your Mount S.
Yea, just the “one case” that reveals your previous comment to be rando words you pulled out of your a ss. As usual.
Another tell? You are the only one around here nervous about a Pro-Am player not “knowing the terrain” whilst you aren’t even holding the right map.
Nobody knows the terrain: that’s the entire locus of the problem!
What you think is “revealed” only highlights your own height of Mount S.
But thanks for confirming that.
… and you confuse my ridicule of you with “nervous”…
Precious.
Drink deeply from that shallow pool, oh Narcissus.
Above all I think we should salute Mr. Janke for fighting a justifiable fight for some justice to software based inventions.
Many years ago I heard Dan Brinkman, the inventor of the (computerized) spreadsheet respond to a question about how would his life be different if he could have patented his invention. He said he think the answer would be around four. Billion dollars that is.
I think he underestimated, and I also strongly believe he SHOULD have had his invention patentable, and SHOULD have received his reward and more.
As to the connection between law, legal system and justice… Well I better stop here.
MM>>You get what you describe in structural terms distinguishing the allegedly non-obvious structure from the prior art.
The irony here is that this person has spent 20 years trying to get this standard of structure used to access information processing inventions. But, for molecules there is a special out where the molecules may have other molecules attached to them. But it is too complicated and impossible to describe all the molecules that could be attached to the base molecule so they have adopted a policy of only describing the core molecule and allowing any structure that hangs onto the core molecule.
Wow! Gee, that is just like information processing. Where the number of solutions (hanging on molecules) is too large to describe so functional terms are used to capture all the possible solutions.
But still the madness marches on.
I claim a new widget.
I claim steps that result in the generation of my new widget.
I claim machinery “configured to perform the function of generating” my new widget.
I claim taking a picture of my new widget.
I claim plugging my widget into an electrical outlet to supply power to my widget.
Which of these things did I invent? (Hint: There is only one right answer.)
Which of these things did I invent?
Like most things — it depends.
The widget and steps are definitely inventions. The machinery may be inventive depending upon if it needs any changes to make the new widget. The taking a picture is unlikely to be patentable (printed matter). Plugging in the widget (i.e., using the widget) is likely to be patentable.
Now if you disagree, I would like to see case law that supports your position.
I claim a new widget.
This was invented.
I claim steps that result in the generation of my new widget.
I claim machinery “configured to perform the function of generating” my new widget.
The “steps that result in” is perhaps not the clearest language, but I meant it to be similar to the machine, i.e. both statements of statutory category (method, machine) that generate a result without limitation to particular steps or means that achieve the result. These are invalid under Perkin’s Glue, Morse, and any breadth of enablement/description case.
I suppose it is not impossible to invent a function, but it is practically impossible to do so, because your enablement and description would need to commensurate with the full scope of the function. i.e. You would need to actually possess every manner of making something happen. Because science is inductive by nature, that proof is virtually impossible to make. Further, it seems pretty clear that a claim to “a function” absent significant limitations toward particular means for doing so is a claim to an abstraction under Alice.
I claim taking a picture of my new widget.
I claim plugging my widget into an electrical outlet to supply power to my widget.
These were inventions, but not by me. The camera was invented long ago, as was the electrical outlet. I don’t get to re-patent someone else’s invention by changing the subject of its use. This is a key example of why judicial exemptions are needed. Unless you ignore the new widget (which would require a new doctrine with respect to prior art rejections) the claim would issue, as it meets all the other requirements. These claims used to be invalid aggregations that violated point out and particularly claim in pre-52 jurisprudence.
The “steps that result in” is perhaps not the clearest language, but I meant it to be similar to the machine, i.e. both statements of statutory category (method, machine) that generate a result without limitation to particular steps or means that achieve the result. These are invalid under Perkin’s Glue, Morse, and any breadth of enablement/description case.
This is why I wrote “it depends.” Your description is so broad that a dozen different people could interpret it a dozen different ways. Poorly-worded hypotheticals typically result in poor analysis.
I suppose it is not impossible to invent a function, but it is practically impossible to do so, because your enablement and description would need to commensurate with the full scope of the function. i.e. You would need to actually possess every manner of making something happen.
A function is a step. A step is a function. What you are essentially arguing is that method claims that recite steps (i.e., functions) are practically impossible because you don’t “actually possess every manner of making something happen.” Am I right? If not, explain why not.
These were inventions, but not by me.
Here, you err by not considering the invention as a whole. The invention is not merely plugging something into an outlet. Rather, the invention is plugging a novel widget into an outlet. This is not anticipated. This is not obvious. This is not one of the judicially-created exceptions to statutory subject matter. Assuming that there is 112 support, you cannot properly reject such a claim.
If I invent a new jet engine, I can claim an aircraft having that new jet engine. This is basic claim drafting strategy. You may not like it, but you have no basis for making a rejection. See citation from the old MPEP 2173.05(k) — “In re Gustafson, 331 F.2d 905, 141 USPQ 585 (CCPA 1964) (an applicant is entitled to know whether the claims are being rejected under 35 U.S.C. 101, 102, 103, or 112 ).”
These claims used to be invalid aggregations that violated point out and particularly claim in pre-52 jurisprudence.
Maybe, maybe not. But aggregation rejections are not the law. They are non-statutory.
The funny thing here is that is was Random himself that pointed out the MPEP section discussing “aggregation.”
Since that time — several times — he seems to act as if he is not aware of what he provided.
I see below that Random wears his “NO in innovation to protect the public” spiritual chainmail on his fervent desire to ignore the fact that the Act of 1952 was explicitly to correct the wayward Supreme Court, and Congress did NOT use any such fabled “Point of Novelty” in writing the law.
His penchant for confirmation bias has truly warped his understanding.
What you are essentially arguing is that method claims that recite steps (i.e., functions) are practically impossible because you don’t “actually possess every manner of making something happen.” Am I right? If not, explain why not.
It depends on how the function is used and its relationship to the rationale for nonobviousness. When functional language is used to describe old things and the functional language immediately calls the structures that achieves the functions to mind, the functional language is being used for a range of know structures or, in a method, a series of structures. Moreover, the danger overbreadth of the scope is lessened because that is not the relevant feature of the grant. Conversely, when functional language is used as the novelty of an invention, it’s really an attempt to expand the known structures (which are the only things actually grasped by the inventor) into unknown structures which have similar utility.
As a simple example, there’s a big difference between claiming a machine that prints at a distance when you’re Morse inventing the telegraph and that is the point of your invention than when you’re a modern day networking engineer and you a referring to printing at a distance to illustrate the proper context of some networking protocol. To say that Morse possessed the function of printing at a distance would be to give Morse’s claim dominion over the modern day networked printer or SMS text, which he clearly did not posses. To speak about possessing the functionality in a world where the art is well aware of networked printing and SMS texting is to shorthand a wide variety of known structures for their known essential qualities.
Very few inventor are as important as Morse, who did not invent a function. He invented one machine whose use brought about a functional result. But he did not possess the entirety of the function. I would argue the function is an abstract that cannot be invented, but even if you think that functions can be invented you cannot escape the fact that the scope of a claim must be commensurate with the breadth possessed. To possess the breadth of a function one of ordinary skill would need to know all of the ways the function could manifest (which is something you cannot know) and then confirm that you possess examples sufficient to cover the entire breadth (which nobody ever does). Every good scientist knows you can never say you’re the last word in any field.
Here, you err by not considering the invention as a whole. The invention is not merely plugging something into an outlet. Rather, the invention is plugging a novel widget into an outlet.
No, this is where attorneys allow misreading of doctrine to run riot in place of common sense. If someone comes up with an improved battery, they are justly enriched by a claim that covers their battery. But if you hook that battery up to a car in the same manner that every other car battery is hooked up, you haven’t invented a new connection, or a new method of installing a battery. You’ve got the same old connection. A claim to “putting my [novel battery structure] in a car using conventional means” is an attempt to unjustly enrich the battery inventor by piggybacking on the car battery holder inventor. So too would be a claim to conventional testing of my novel car battery and valet parking a car that is powered by my novel car battery.
Let me explain it in a manner that may make more judicial sense to you. If instead of a widget or a battery I invent a new computer processor, do you think the Supreme court is going to let you claim all of the conventional things you could do with pen and paper, or with earlier processors, but again rededicated to you because your claim “as a whole” includes your novel processor structure? How did that work out for the patentee in Alice? It sure seems like the Court told patentee that they had no invention. And why is that? It’s because the conventional fundamental business practice was not going to be constantly rededicated to everyone who invents a novel computer/processor/widget, etc.
It’s just common sense. If you could point to the “claim as a whole” to recapture the conventional use of a camera directed toward your product, the natural effect is that nobody could ever take a picture of anything in society without bumping up on someone’s patent. The camera would never get dedicated to the public. It is outside of Congress’ power to scheme the camera to never be dedicated to the public, even if they wanted it to (which they almost surely did not). So regardless of what kind of widget you’re talking about, if your novel widget interacts with conventional matter in the conventional way your claim is invalid because you didn’t invent the underlying thing.
Again this was clear supreme court precedent, it was just ignored by the CPA post-52 and the supreme court has never revisited it. “Point out and particularly claim” prevents you from claiming conventional subject matter that is not modified by your novelty.
This is not one of the judicially-created exceptions to statutory subject matter.
Don’t confuse the fact that the office won’t reject this claim – and I agree with you they wouldn’t reject a claim to “conventional usage of my novel widget” – with whether it would be upheld. How did Sequenom fair with “conventional [camera] pointed at a nonobvious subject”? How about Hulu with advertising on a new medium? I would think twice before you hang your hat on the validity of conventional acts that behave exactly the same when your new widget is involved. You think someone isn’t smart enough to argue “Hey plugging something into an outlet is really just using the natural laws relating to electricity and current and the additional nonobvious widget structure is not significantly more because it behaves in an entirely conventional way”? That being said, people seem to forget that we consider and then toss parts of claims in all sorts of contexts, and I agree 101 is not the best fit here.
If I invent a new jet engine, I can claim an aircraft having that new jet engine. This is basic claim drafting strategy. You may not like it, but you have no basis for making a rejection.
I don’t think an aircraft having the new jet engine is ridiculous, as the different properties of the engine clearly affects the use of the aircraft. What I do think is ridiculous is inventing a new doorknob grip, claiming the doorknob grip in concert with the doorknob, the door, the wall, and the building, and then marking the building. The grip at most affects the doorknob, and would treat the door, wall and building in the same manner as any other doorknob grip. That does not provide notice for the grip, and it is an attempt to make an inventing molehill into a mountain. Embrace the molehill. The modern world was built by molehills standing astride the shoulders of giants. I only have no basis for rejection for the same reason I have no basis for a lot of 101 rejections or best mode rejections – it’s because the MPEP tells me I can’t do it, not because it’s not the law.
See citation from the old MPEP 2173.05(k) — “In re Gustafson, 331 F.2d 905, 141 USPQ 585 (CCPA 1964) (an applicant is entitled to know whether the claims are being rejected under 35 U.S.C. 101, 102, 103, or 112 ).”
You cite these as if I aren’t aware of them. I’m not only aware but I have actually read them. Have you? Gustafson merely points out that “aggregation” had been used in both 112b and 103 contexts – the former for including unrelated elements and the latter as a juxtaposition to nonobvious combination. It does not dispute the logic that inclusion of features unrelated to the nonobviousness is a violation of 112b. Collier, also cited there, in the same paragraph that said aggregation rejections are non-statutory upheld a 112, 2nd rejection on the aggregation logic.
This section of the MPEP simply stands for the proposition that calling the deficiency an aggregation is not a proper rejection. It is not a statement that aggregating unrelated features into a claim does not violate 112b. However, the section you are looking for does exist, see MPEP 2173.05j.
Specifically, read 2173.05j, then read Bernhart, and then read Radio Steel, and ask yourself if the conclusion in the MPEP could possibly be correctly drawn from the language in Bernhard or Radio Steel, or if the MPEP is just attempting to make its opinion in Ex parte Barber be controlling despite no court saying that. You may be amenable to this view, since it would be of a kind with your view on conditional limitations with the office just making up law.
Maybe, maybe not. But aggregation rejections are not the law. They are non-statutory.
Let’s be clear – the last thing the supreme court said on aggregation rejections is that they are the law and they violate what is now 112b. See Lincoln Engineering and the many cases in its footnote 6. The federal circuit has chosen post-52 not to follow the supreme court jurisprudence, instead finding a way to distinguish what is effectively the same statutory language. The fact that nobody has called on the supreme court to reassert Lincoln doesn’t mean that the CPA overruled Lincoln. Nor does the fact that the MPEP follows the CPA case mean that the Office overruled Lincoln. Nor, most importantly, does the logic of the holding disappear. One cannot say they are pointing out and particularly claiming what is their invention when they intentionally add conventional subject matter that has no new function in order to seek additional contributory infringers, or increase their damages, or avoid notice, or whatever else you all like to dream up in place of faithfully describing what this person’s contribution to society was. You’re intentionally avoiding a claim to the actual improvement in order to unjustly enrich your clients. The fact that you can get away with it (largely because a lot of the victims of this behavior are themselves perpetrators) doesn’t mean its in compliance with the law.
Lincoln: the improvement of one part of an old combination gives no right to claim that improvement in combination with other old parts which perform no new function in the combination.
I have no problem with a claim to a jet engine in an aircraft because I think it’s reasonably clear that the improved features in the novel engine cause new functionality for the aircraft as a whole. Do not confuse that with camera taking a picture of new widget, or plugging new widget into an outlet to power new widget, or valet parking car powered by my new widget, all of which are wholly unaffected by the novelty of the widget. Just because you can get that claim doesn’t mean it’s a valid claim if it were properly tested.
Moreover, the danger overbreadth of the scope is lessened because that is not the relevant feature of the grant. Conversely, when functional language is used as the novelty of an invention, it’s really an attempt to expand the known structures (which are the only things actually grasped by the inventor) into unknown structures which have similar utility.
Novelty of an invention? What happened to considering the invention as a whole?
To say that Morse possessed the function of printing at a distance would be to give Morse’s claim dominion over the modern day networked printer or SMS text, which he clearly did not posses.
No one ever possesses all of the possible improvements, yet we grant patents on the original idea as well as the improvement.
But if you hook that battery up to a car in the same manner that every other car battery is hooked up, you haven’t invented a new connection, or a new method of installing a battery. You’ve got the same old connection.
I’ve invented a new battery/car combination – again, that’s the invention as a whole.
Let me explain it in a manner that may make more judicial sense to you.
How about you just cite a real case, and let the judge “make more judicial sense” to me.
How did that work out for the patentee in Alice?
We aren’t talking about 101. Stay on point.
It sure seems like the Court told patentee that they had no invention.
No. They said that the invention was not patent eligible.
If you could point to the “claim as a whole” to recapture the conventional use of a camera directed toward your product, the natural effect is that nobody could ever take a picture of anything in society without bumping up on someone’s patent.
Nice strawman argument. This is the first time that this hypothetical is put into the discussion. You also seem unaware of the Federal Circuit’s observation that “virtually all [inventions] are combinations of old elements.” Are we “recapturing[ing] the conventional use of [these old elements]”? Novel and non-obvious combinations of conventional elements are still patentable.
Regardless, your example of taking a picture of a widget would be obvious. The camera does not interact with the widget and it would be obvious to one skilled in the art to take a picture of any thing (whether that “thing” was known or unknown).
if your novel widget interacts with conventional matter in the conventional way your claim is invalid because you didn’t invent the underlying thing
And your case law support for this is?
the last thing the supreme court said on aggregation rejections is that they are the law
When did the Supreme Court say that? Regardless, it is inconsistent with MPEP 2173.05(k) so good luck making that rejection. A quick call to your SPE would dispose of that rejection rather quickly.
Do not confuse that with camera taking a picture of new widget, or plugging new widget into an outlet to power new widget, or valet parking car powered by my new widget, all of which are wholly unaffected by the novelty of the widget.
Again, none of these were hypotheticals you identified above. If plugging the new widget into an outlet definitely impacts the functionality of the widget. I have no idea what you are driving at with your valet parking car example.
Novelty of an invention? What happened to considering the invention as a whole?
Anon says this all the time too. These are not conflicting things. I consider the entire claim, but the office tells me to identify what made a claim novel and nonobvious. Is that wrong? Enablement considers the whole claim, but treats the disclosure requirements differently for known features. Is that wrong? Alice considers the entire claim, but pays special attention to what the claim is directed to. Is that wrong?
Considering the invention as a whole does not mean all the elements are equally important.
No one ever possesses all of the possible improvements, yet we grant patents on the original idea as well as the improvement.
I’m not sure what you mean by “we grant patents on.” It is factually true that we grant those patents. That does not mean they are proper. That’s the whole point of Morse – if you could write claims in a manner that covered all the possible ways of doing something, there’s no incentive for someone else to disclose a better way.
We aren’t talking about 101. Stay on point.
Prior to the CAFC “discovering” written description around 2000 the main mechanism for policing overbreadth not violative of enablement was to place the patentee between the hammer of “particularly pointing out” and the anvil of “abstraction.” When the patentee used functional language they defended it in one of two ways – (1) My disclosure discloses a concrete embodiment, and these claims describe that embodiment or (2) My disclosure discloses some sort of fundamental truth, and therefore my invention is that fundamental thing, in all its shapes and forms. (1) was policed by stating that functional claim language does not point out and particularly claim the embodiment (i.e. a 112b rejection, see GE v Wabash, Perkin’s Glue). (2) was policed by stating that thing cannot be the subject of a patent (i.e. a 101 judicial exception, see Morse). I’m simply awakening you to the fact that when people have previously tried to say “I am allowed to write my own scope and call whatever I want my invention” the response to that has been “okay, we’ll just exempt that from patentability.” But fair enough, it’s a 112b discussion.
No. They said that the invention was not patent eligible.
haha. Fine fair enough.
You also seem unaware of the Federal Circuit’s observation that “virtually all [inventions] are combinations of old elements.”
I am aware, I’m also aware that the supreme court explicitly pointed out that adding old elements to a combination “easily lends itself to abuse” and that those claims should be “viewed with close scrutiny.”
Are we “recapturing[ing] the conventional use of [these old elements]”? Novel and non-obvious combinations of conventional elements are still patentable.
You can’t receive a patent for combining old elements which each doing what it was known to do, as that is one example of what obviousness is. There is no such thing as a patent which issues because of a combination of old things that are being put to their conventional uses.
Regardless, your example of taking a picture of a widget would be obvious. The camera does not interact with the widget and it would be obvious to one skilled in the art to take a picture of any thing (whether that “thing” was known or unknown).
What? The camera flashes light at the widget and reads a response. The camera interacts with the widget just as much as the electrical outlet does, which is to say “in its conventional manner.” There is absolutely no theory in obviousness that allows you to ignore system limitations (“whether that thing was known or unknown”). You *CAN* find the use of known technique obvious, but it has to be applied to a known thing, see MPEP 2143(I)(C) and (D) and KSR.
Regardless, this is admitting the issue – if your point is that I can’t reject camera pointing at a new widget under 112b, but I can ignore the new widget limitations in the claim and reject it under 103, I would be happy to concede that is a valid way of resolving the concern. There is, of course, no caselaw saying this, so I don’t know why you’d suggest it, but I agree they pulled “printed matter” out of their behinds without statutory support to ignore those limitations for 103 so it’s not like its coming out of left field.
Again, none of these were hypotheticals you identified above. If plugging the new widget into an outlet definitely impacts the functionality of the widget. I have no idea what you are driving at with your valet parking car example.
They’re driving at the same thing, which is if you invent new widget, you don’t get to re-patent all the conventional subject matter that performs in same way despite your widget. In other words, the fact that a claim to a system comprising your novel widget will not violate 102/103/112/101, that does not inherently mean that a system comprising your novel widget + conventional subject matter will not violate 102/103/112/101, despite it nominally being more limited.
To re-tie it to the original post, the fact that this guy invented a rake does not inherently mean that he can claim “machinery configured to generate my new rake” and “computer code for generating my new rake.” That *may* be the case, but not necessarily so. For example, I’m wondering if you would say the same thing about computer code driving a 3d printer that you just did about the camera. The 3d printer is reading different mathematical algorithms just as the camera is reading different light, and presumably the structure of the algorithms is as nonobvious as the structure of the widget in the camera example. Indeed, if it was a digital camera the only distinctions we’re talking about in terms of use is a nonobvious string of 1s and 0s, just like with the 3d rake algorithm. Would you also say that a 3d printer will print whatever you tell it to and it would be obvious to the art to print anything? Why can you say that it is obvious to point the camera at anything and generate nonobvious 1s and 0s but you can’t say that its obvious to have the 3d printer read nonobvious 1s and 0s? Or are they similar and both are obvious despite the end result including nonobvious structure?
The funny thing is, you have no understanding of what you speak of and thus cannot tell the items to which you are correct from the items that you are absolutely wrong about.
From my non-PC, meritocracy days of school, in which “guessing” was not rewarded, you would
F
A
I
L
for not showing your work (your diatribe is just not “the work” that would earn credit).
Considering the invention as a whole does not mean all the elements are equally important.
ALL of them are equally important. You should 99 limitations out of my claimed 100 are obvious but you miss the 100th, then the claims are patentable – not matter which limitation you missed.
It is factually true that we grant those patents. That does not mean they are proper.
You are freak’n clueless. Most patents are improvement patents.
That’s the whole point of Morse – if you could write claims in a manner that covered all the possible ways of doing something, there’s no incentive for someone else to disclose a better way.
Clueless again. Morse was about enablement (and lack thereof). Regardless, even if Morse’s claim was patentable, there would still be incentive for people to invent. Anyone who has experience with mechanical/electrical/computer technology and how it evolves knows that the first iteration of an invention is infrequently the commercialized iteration. Once you have the base idea down, you continually improve upon it. As a great example, I had an opportunity to review a portion of the patent portfolio generated by Gary Michelson. He is an orthopedic spinal surgeon that worked on spinal implants. The guy got 100s of patents and if you read them they started out simple and he continually improved them as time went on. This is how technology progress. You start with an idea and then you (and/or others) continually build upon it. Seriously, you have no freak’n clue what goes on in the real world.
Prior to the CAFC “discovering” written description around 2000 the main mechanism for policing overbreadth not violative of enablement was to place the patentee between the hammer of “particularly pointing out” and the anvil of “abstraction.”
Whatever dude. 101 was essentially dead law until Bilski revived it. As for the “particularly pointing out,” that has always been a pretty easy standard to overcome. If anyone at the USPTO did what you suggest, they were going rogue.
I’m simply awakening you to the fact that when people have previously tried to say “I am allowed to write my own scope and call whatever I want my invention” the response to that has been “okay, we’ll just exempt that from patentability.”
And that “rejection” would get slapped down at the PTAB (or BPAI) for being inconsistent with the law. I’m always amused by patent examiners pretending to be attorneys when they know next to nothing about how the law should be interpreted.
I am aware, I’m also aware that the supreme court explicitly pointed out that adding old elements to a combination “easily lends itself to abuse” and that those claims should be “viewed with close scrutiny.”
Not you are not aware. Virtually all inventions employ old elements. That’s recognized by the Supreme Court in KSR who wrote “[I]nventions in most, if not all, instances rely upon building blocks long since uncovered, and claimed discoveries almost of necessity will be combinations of what, in some sense, is already known.”
The camera interacts with the widget just as much as the electrical outlet does, which is to say “in its conventional manner.”
Do you have an engineering degree? Or are you some admin person at the USPTO? The widget works without the camera. The camera works without the widget. The widget, however, doesn’t work without being plugged into the electrical outlet. So no – it isn’t the same.
I agree they pulled “printed matter” out of their behinds without statutory support to ignore those limitations for 103 so it’s not like its coming out of left field
My comments weren’t directed to printed matter, which if you follow the case law long enough (which I HIGHLY DOUBT), printed matter rejections are more akin to ‘abstract idea’ rejections than anything.
if you invent new widget, you don’t get to re-patent all the conventional subject matter that performs in same way despite your widget
I hate to break it to you, if claimed properly, you can. You can make that rejection if you want, but you’ll lose badly at Board. The reasons is that one is NOT “re-patenting all the convention subject matter.” Rather, one is patenting a new and nonobvious combination.
To re-tie it to the original post, the fact that this guy invented a rake does not inherently mean that he can claim “machinery configured to generate my new rake” and “computer code for generating my new rake.”
Admissions of unpatentability based upon Supreme Court law (i.e., “Appellant agrees with the Patent Office that the Claims 21-35 on appeal fall within the judicial exceptions to the 35 U.S.C. § 101 statutory allowances for patent-eligibility arising from Gottschalk v. Benson and Parker v. Flook.”) will surely sink a claim at the Federal Circuit. That’s the only thing I’m taking from this Rule 36 affirmance.
Would you also say that a 3d printer will print whatever you tell it to and it would be obvious to the art to print anything?
A 3D printer is not a camera. A 3D printer is more akin to a specially-configured processor. I suggest you read Typhoon Touch v. Dell and Nazomi v. Nokia.
ALL of them are equally important. You should 99 limitations out of my claimed 100 are obvious but you miss the 100th, then the claims are patentable – not matter which limitation you missed.
Unless the 100th is printed matter, or a branched conditional, or ineligible subject matter when the other 99 are conventional, or not particularly enabled when novel, or any other number of reasons a limitation is treated differently.
Morse was about enablement (and lack thereof).
What? Then why did the supreme court cite it in alice explaining about judicial exceptions? Morse explained how the principle worked, he just wanted every possible application of it. At best it could be construed as a WD case, but most people (including, relevantly, the supreme court) consider it a 101 case.
Regardless, even if Morse’s claim was patentable, there would still be incentive for people to invent. Anyone who has experience with mechanical/electrical/computer technology and how it evolves knows that the first iteration of an invention is infrequently the commercialized iteration.
The improved people could invent all they want, they can’t bring their product to market without the original person, no matter how different the structure is. You invent a bow, claim a machine that fires projectiles, and I can’t market my gun regardless of the fact that my gun relies upon an entirely different principle of operation that happens to produce a vaguely familiar result. I have no incentive to disclose my gun, as I can’t sell my gun, as my gun “infringes” your bow. Now you *may* (if you’re feeling lazy) license to allow my gun to market, but thats only if you think you can extract more in licensing fees from my genius than your own. It does not serve the goals of patent law for the first person to be issued an overbroad scope.
Regardless, you’re not arguing with me, you’re arguing with the supreme court. I’m just repeating what they said in Morse. Go tell them they’re clueless about patent law. But now we’re just getting into what’s wrong with functional language.
And that “rejection” would get slapped down at the PTAB (or BPAI) for being inconsistent with the law.
Chemical makes sequenom rejections all the time that get upheld. You just got through saying I could actually make a rejection on this, you just call it a 103 rejection.
The widget works without the camera. The camera works without the widget. The widget, however, doesn’t work without being plugged into the electrical outlet.
“The widget can be supplied power by something other than an electrical outlet. The electrical outlet can supply power to things that are not the widget.” Do YOU have an engineering degree? Do you think plugging something into the wall is the only way to power it?
But just to be clear here – are you saying you can ignore limitations whenever there is a substitute element? If you invent a new car battery, can I reject a system comprising new car battery + car by pointing out that “Cars work without the new battery, and batteries power things besides cars”? Cause let me tell you, I’d be able to reject everything there. I’m trying to understand your thinking here.
My comments weren’t directed to printed matter, which if you follow the case law long enough (which I HIGHLY DOUBT), printed matter rejections are more akin to ‘abstract idea’ rejections than anything.
Oh I agree that they are akin to abstract idea rejections. They are judicially created atextual mechanisms for making sure that a claim does not issue because of something we don’t want to protect, regardless of whether a statutory class is being claimed. Whether its done within the rubric of 101 or 103 is not really relevant to me.
I hate to break it to you, if claimed properly, you can. You can make that rejection if you want, but you’ll lose badly at Board…A 3D printer is not a camera. A 3D printer is more akin to a specially-configured processor.
Wait what? You just told me I could reject it. It’s right up there at 5.1.1.1.2.1. Here I’ll quote it for you:
Regardless, your example of taking a picture of a widget would be obvious. The camera does not interact with the widget and it would be obvious to one skilled in the art to take a picture of any thing (whether that “thing” was known or unknown).
So can I reject the camera taking a picture of the new widget or not?
And I noticed you never answered my question. Why can I ignore the widget for the camera method but not the coding algorithm for a 3d printer generating a rake? Is it because one is writing nonobvious information and the other is reading nonobvious information? Is it because the end result of the methods are that one generates a nonobvious rake and the other makes a nonobvious picture and you think one element has more value than the other? Is it because the camera can work without the widget and the widget can work without the camera, but you think the 3d printer can’t work without the rake algorithm and the rake algorithm can’t work without the 3d printer? Explain to me why I can ignore the limitations in one and still find it obvious and not ignore the limitations in the other.
Unless the 100th is printed matter, or a branched conditional, or ineligible subject matter when the other 99 are conventional, or not particularly enabled when novel, or any other number of reasons a limitation is treated differently.
Printed matter rejections are exceptionally rare. As for branched conditional rejections, they could be ignored if they are optional – otherwise not proper. The fact that a single limitation is “ineligible subject matter” is not necessarily dispositive.
What? Then why did the supreme court cite it in alice explaining about judicial exceptions?
Because the law clerks don’t understand enablement and don’t understand Morse.
At best it could be construed as a WD case, but most people (including, relevantly, the supreme court) consider it a 101 case.
Not written description.
I have no incentive to disclose my gun, as I can’t sell my gun, as my gun “infringes” your bow
Again, your knowledge of the real world is exceptionally limited. The inventor of the gun would still bring it to market. Maybe the bow patent owner discovers the gun and sues – maybe not. If so, the inventor of the bow sees the value of the gun and wants to sell guns as well but he cannot because the gun patent exists. In this instance, maybe there is a cross license. Maybe just the gun patent owner licenses the bow patent.
It does not serve the goals of patent law for the first person to be issued an overbroad scope.
Only in the mind of someone who doesn’t know how the real world works.
Regardless, you’re not arguing with me, you’re arguing with the supreme court. I’m just repeating what they said in Morse.
I doubt you’ve read Morse or even understand it. Don’t worry, it is an exceptionally poorly written opinion, which is typical of those days where judges were fond of writing a lot more than necessary.
Do you think plugging something into the wall is the only way to power it?
That wasn’t the hypothetical you presented. If it is capable of being plugged into a wall, this means it is configured to be operational based upon its use.
if you invent a new car battery, can I reject a system comprising new car battery + car by pointing out that “Cars work without the new battery, and batteries power things besides cars”?
Most cars don’t work without a battery … period. A camera doesn’t need any particular widget (regardless of the type) to work.
Wait what? You just told me I could reject it. It’s right up there at 5.1.1.1.2.1. Here I’ll quote it for you:
A 3d printer is not a camera – analogy doesn’t apply.
Why can I ignore the widget for the camera method but not the coding algorithm for a 3d printer generating a rake?
Read Nazomi and Typhoon Touch. For the 3D printer to generate the rake, it has to be specifically configured to do so. Not necessary for the camera. Also, the 3d printer makes the rake. The camera does not make the widget. If you cannot see the difference, I cannot help you.
Perform the same exercise with the following progression of claims:
1. Steam whistle with feature X.
2. Battleship, fitted with the whistle.
3. Flotilla, including that battleship.
4. Navy, including that flotilla.
I invented only the whistle but on basis do I claim compensation for unlicensed use of my whistle?
clever – steam whistle etc.! I like it
Except Max that is not the issue at all.
Try:
1. A steam whistle with feature X.
2. A method of manufacturing the steam whistle with feature X.
3. A mathematical model that can be used by a computer-controlled manufacturing process to manufacture the whistle with feature X.
If I had invented a new method of manufacturing, my claim 1 would certainly not be directed to a steam whistle. If I had invented a mathematical model, useful throughout manufacturing industry, I would have claimed that. I would have gone on to claim its use in a method of manufacturing. Then I would have claimed any product made by the new and useful non-obvious method of manufacture. A claim to a steam whistle as a product of my inventive process, if present, would appear around claim 99,999.
Some may choose otherwise — does this difference in choice make them incorrect?
I invented only the whistle but on basis do I claim compensation for unlicensed use of my whistle?
Assuming your claims are all valid, your compensation is going to be likely based upon the value of the steam whistle. You can argue that it could be based upon the value of the battleship, for example, but you are going to have a hard time arguing that the battleship is more valuable with your whistle than without your whistle.
Moreover, your hypothetical is a poor one since a single entity possesses the battleship, flotilla, and navy. A better example would be one in which different entities own the differently-claimed objects. However (and I’m not a damages expert so don’t take this as gospel), if you licensed the first user, it is likely that that license will extend to all of the end-use users as well (if the license was drafted by competent counsel). Additionally/alternatively, the first user may indemnify downstream users such that if there is an infringement action the first user will negotiate a license that covers everyone. Regardless, this is a licensing/damages issue
MaxDrei has floated this type of hypothetical before, and it has more to do with “proper claim scope” of an invention.
I think that this draws to his ipso facto “the difference characterized by” (pseudo) Jepson tendency.
Did the inventor of the piece part “really” invent” an improved (larger) device?”
Even though differences in US practice have been pointed out (both in law and remedy), he does not have a mind open to understanding.
Perhaps there is something special about the whistle that is especially pertinent to marine applications.
Perhaps it’s merely a contrivance to aim for a larger value of good of any transgressor.
But in either case, so what? The converse of MaxDrie’s position is that a battleship is so large, they could literally get away with infringement of ANY small thing by adding it to the battleship.
** there is a second concept that comes to mind: damages assessment for items that may well have hundreds of patents related therein. Think cell phones.
WT, you have nailed it. It is a licensing/damages hypo. I didn’t conceive it. Instead I borrowed it from a now-retired English patent judge called Robin Jacob. He used it in a pharmaceuticals case where the issue was indeed licensing. In RJ’s hypo, and in the context of licensing revenue, claims 2, 3 and 4 are know as “Reach Through” claims.
I just thought that here, in the context of the enquiry “what is the invention”, the notion of a Reach Through claim might add something to the discussion. That it’s not royalty-bearing demonstrates that, whatever it might be, it certainly isn’t “your” invention.
That it’s not royalty-bearing demonstrates that, whatever it might be, it certainly isn’t “your” invention.
It all depends.
A small device placed on a much larger airplane that saves 20% in fuel costs might generate incredibly large royalties.
Royalties are NOT about whether it is “‘your’ invention.” Rather royalties are about what your invention adds to the whole.
Let’s not forget — “invention as claimed.”
MaxDrei, you keep on wanting to apply non-US law to US law discussions.
(Continual) backtracking on your part to identify your comment as pertaining to non-US law only makes you look inept.
For the amount of time that you spend on US law blogs, one would figure that you would have figured this out by now.
However (and I’m not a damages expert so don’t take this as gospel), if you licensed the first user, it is likely that that license will extend to all of the end-use users as well (if the license was drafted by competent counsel).
Good, now try considering what happens to the innocent third party when you don’t license the first user. How about claim 5 – providing legal advice to a client who lives in a country protected by the navy containing the inventive whistle. I’m just curious if you think you can be hauled into federal court based upon whether or not someone else properly licensed a widget wholly unrelated to you.
Additionally/alternatively, the first user may indemnify downstream users such that if there is an infringement action the first user will negotiate a license that covers everyone.
But why oh why would someone spend their money to license claims they aren’t interested in infringing? You’re so close to hitting on why this practice is wrong.
Regardless, this is a licensing/damages issue
It’s a very simple question – was congress granted the police power to set up any statutory scheme covering any set of liability so long as (1) someone, somewhere invented something at some time and (2) that third party is the enforcement mechanism? That’s the natural outcome of the thought process that Congress could, and did, grant the patentee the ability to write a claim scope unbounded in breadth so long as at least one corner of it contains a nonobvious invention. The notion that you can call any scope “your invention” without limitation obviously flies in the face of either the statutory scheme (and its clearly found in either 101 or 112b) or the constitutional scheme.
According to this line of thinking, while Congress’ commercial power doesn’t let them regulate guns near schools, their patent power would allow whoever invented a new gun to claim the method of use of discharging (or maybe even possessing) a gun near a school. Just have someone file a patent on gun + GPS technology, get your PTO to declare it nonobvious, write constitutional gun sale legislation requiring all guns sold to have the tech, and then make sure the patent finds its way to the Sandy Hook parents who decline to issue licenses. Voila, federal regulation of guns near schools.
All these people spending millions to lobby for regulation being passed are really barking up the wrong tree – for a fraction of the cost you could purchase patent prosecution rights in the right invention, write citizen legislation through the PTO, and even selectively enforce it according to your own biases. Why compromise to pass a law that has to be applied fairly when you can achieve similar regulation by writing the law yourself and exempting your friends for bribes? The people’s representatives are really unnecessary middlemen, right?
^^^ the “righteous protector” — all the children are safe in the fields of rye tonight !
How about claim 5 – providing legal advice to a client who lives in a country protected by the navy containing the inventive whistle.
Why don’t you work with an even halfway-plausible hypothetical?
I’m just curious if you think you can be hauled into federal court based upon whether or not someone else properly licensed a widget wholly unrelated to you.
Asking that question is evidence of your cluelessness.
The rest of your post is just gibberish.
haha okay. Claim 5, a method of use of a novel steam whistle comprising: a first naval vessel receiving a steam whistle signal issued from [novel steam whistle, w/novel characteristics] originating from a second naval vessel; and, the first naval vessel changing a heading of the first naval vessel based, at least in part, on receipt of the steam whistle signal.
You, like every other seagoing vessel, change course in response to warning whistles. Someone uses an unlicensed whistle to clear their path and you change heading. Explain why you can’t be hauled into court. (This is, in fact, no different from conventional law practicing in the same country. I’ve simply swapped one conventional act in a conventional profession for another, but apparently you needed a stronger fake nexus between the inventor and the infringer to be able to take a position.)
And lest you consider this not plausible, you should know that I see this type of claim all the time in the field in which I examine.
And just so the hypo is clear so you don’t try and take any silly offramps: The whistle has a nonobvious structure that causes a marginally different and somehow improved sound to be output. I, as the recipient, do not care about the marginal difference – I would change course if I saw a boat sending a fog horn or playing mariachi music. The inventive aspect of the whistle is entirely irrelevant to me and how I do my work.
In the event you have some issue with this particular claim, assume similar claims where the whistle is used to signal a dock attendant to fuel the ship, or a tugboat to assist in docking the ship, or any other of a hundred other jobs that are unimpacted by the improvement and behave in exactly the same way if a generic steam whistle were involved. In other words, assume an unlimited number of claims wherein the patentee claims a conventional steam whistle being used for known conventional steam whistle acts, and then substitutes their novel whistle in the claims for the conventional steam whistle.
Your “caring” has what tether to infringement….?
By the way, your dedication to confirmation bias is quite impressive!
I’m sorry, I’ve stopped reading your silly hypotheticals.
Damm – I was having fun watching him dig deeper and deeper and deeper (all the while he was admiring how fast he was getting out of that hole).
Why not a method claim for writing a book with instructions for making the rake, and a dependent claim for following those instructions “resulting in the rake”?
What’s the legal difference between those claims and these?
The larger question seems to be: if you’ve got a valid claim to an eligible object, what’s to be gained by reciting method claims along the lines of “make the structure using a known method for making the structure”
Making the structure infringes the structure claim. It seems pointless if you’ve got the structure claim to introduce nonsense like “A method for making the structure comprising making a phone call to a parts supplier” etc.
Put another way, if you invent a structure and obtain a patent claim, you are entitled to prevent others from making, using and selling the structure.
You aren’t entitled to sue people for thinking about the structure, describing the structure, for describing how to make it, for drawing it, or “modeling it” in an abstract form on any medium. All that stuff is dedicated to the public forever the moment that the patent application is published.
This is the relatively interesting question and it’s not even that interesting: “considering the additional limitation in Claim 26 of applying the model on a 3D printer to result in making the product”
There’s nothing properly described in the claims that is new and distinguishable from well-known prior art methods of making stuff EXCEPT for the recitation of the desired end product. That’s the problem. You can call it a 101 problem (by ignoring the desired result, which is doctrinally permitted, and realizing that there is no inventive method) or you can call it a 112 problem.
“finally considering Claim 1 to the product itself, when does the claimed subject matter become patent eligible and why?”
The rake is eligible because it’s a physical structure described in structural (not functional) terms which distinguish it from the prior art. The method claims are problematic because of the reasons set forth above. You can invent a structure and claim a structure by describing one method of making it. By doing so, you aren’t entitled to CLAIM at an abstracted level every process that can be generically described which results in your product.
Look at this way: I can theoretically obtain a patent on a non-obvious method of making your rake that utilizes a 3-d printer (or “a factory”) UNLESS you previously described those methods in sufficient detail that you can claim the genus. That doesn’t mean I am entitled to make your rake (if your patent on the rake is valid). It just means that you don’t own the patent rights to my method.
Method claim … for writing a book…
Malcolm why do you insist on your canards when those canards have been destroyed in the past — with invitations to you to discuss on the merits the legal concepts involved (for example, the printed matter doctrine and its important exceptions)….?
The model is effectively instructions for controlling the 3D printer and thus has a functional relationship with the machine of the 3D printer.
You should be able to patent the model used by the 3D printer to create the manufacture.
Full stop. I am sure the Moonies will disagree.
Ignoring the 101 issue, what about other issues? Code-controlled 3D printing of all kinds of structures with holes is not new. Is everyone who gets a patent claim on a new structure also entitled to get patent claims on math code for making it on a 3D printer in the same patent? Shouldn’t there have been a restriction requirement? Is that an allegedly novel improved method of operating a 3D printer?
“ Is everyone who gets a patent claim on a new structure also entitled to get patent claims on math code for making it on a 3D printer in the same patent?”
The so-called (and correctly called, and now defunct) “antibody exception” comes to mind.
You get what you describe in structural terms distinguishing the allegedly non-obvious structure from the prior art. That’s the only rule that ever made sense.
So, you want to impose structural terms of a virus to the structure of information processing inventions.
I get it now. What a pinhead idea.
Paul, it the issues are all the same. It is very much like a CRM claim.
Seems to me that the public policy should be you would want to protect the mathematical model that would generate the manufacture otherwise it would be almost impossible to protect the manufacture as more and more manufactures are based on machines that make the manufacture based on received models.
I don’t get why you should care. If the manufacture is patented, what is the big deal to allow protection for the mathematical model to build the manufacture?
“ If the manufacture is patented, what is the big deal to allow protection for the mathematical model to build the manufacture?”
The correct term here is “all mathematical models” and most people will understand the issue when the correct term is used.
Beyond that, “mathematical models” aren’t eligible subject matter and they ne er have been and, yes, they’ve been around for a long, long time.
Oh brother. And all “mathematical models” are the same no doubt under your virus structure test.
I have no idea what you are talking about (as usual) when you refer to “your viral structure test.” Learn to write clearly or stop creating strawman.
Beyond that, yes, all “mathematical models” are ineligible for patent protection regardless of the nature of this undefined “viral structure test” you refer to. This isn’t even remotely controversial in the world of normal people who model stuff using math every day.
MM>>You get what you describe in structural terms distinguishing the allegedly non-obvious structure from the prior art.
Right, you don’t know what I am talking about. What you want to do is use a structural test for molecules on information processing inventions. Just f’ing crazy. And, also you are misrepresenting the structural test on molecules because the extra hanging off additions to molecules that could never be enumerated are abstracted away in your molecule test.
And,
>>>This isn’t even remotely controversial in the world of normal people who model stuff using math every day.
is total rubbish.
Without even recognizing it, Malcolm stumbles.
Here’s a hint:
1) math
2) applied math
3) MathS
Night Writer,
While certainly no Moonie, current controlling law does present a problem with this particular machine component. See In re Nuitjen.
… there was also a dentures case, iirc
I know the case law is against me.
But I am just trying to put it into perspective.
All the public policy says that you should be able to protect the unique instructions to generate your patented manufacture.
If the CAFC wasn’t so anti-patent, then they would have found a way to protect the instructions. Basically, it may eventually make it impossible to protect your invention.
Actually, you what is close today is electronic files for Autocad. Inventors I deal with at large corporations guard those files like they are their bank passwords. Why? Because it makes it trivial for their products to be copied. You just send those files to a factory in India and you have the product.
I hit a filter – here’s hoping it is a count filter rather than a George Carlin filter…
Your comment is awaiting moderation.
October 8, 2022 at 4:36 pm
Your last paragraph is very much on point to what I remember from the “files” for the denture case (there, I believe that “infringement” was avoided because the “data component” was streamed from servers just over the border in Canada).
Other societal issues have intruded, but I easily see the point in the future in which the Star Trek Replicator type of “digital printing” brings “the factory” into the pr1 vacy of every home — if pr1 vacy even remains a thing unto itself.
The biggest thing with 101 that is going on now is the Congressional bill to change the wording of 101 that would effectively end all EE/CS patents.
And help pharma patents.
“ the Congressional bill to change the wording of 101 that would effectively end all EE/CS patents.”
Wait, there is an important bill before Congress that would dramatically improve the patent system and instantly make the United States a better place? Tell us more.
As usual Malcolm, you are invited to NOT use any innovation to which you would seek to deny patent protection to.
I would return your quip of “tell me more,” but such a choice by you would mean that you would abstain from posting comments, or any other partaking in internet communications.
Are you stringing us along or raking us over with these bad pun invitations?