A Mathematical Model of a Rake

Janke v. Vidal (Supreme Court 2023)

Some of you may know Oregon patent attorney Garth Janke.  Janke’s new petition for certiorari offers a philosophical inquiry into the scope of patent eligibility.  It all started with Janke’s invention of an improved leaf rake, which the USPTO found patentable. But, Janke also invented a method of manufacture and hit an eligibility roadblock in his attempt to patent aspects of that process.  The following three claims are representative:

  • 1. A leafrake head product, as described above.
  • 21. Installing a mathematical model of the same leaf rake head product defined in Claim 1 on a computer.
  • 26. Applying the mathematical model of Claim 21 on a conventional 3D printer to result in making the same leaf rake head product defined in Claim 1.

The USPTO found claims 21 and 26 directed to abstract ideas and that judgment was affirmed on appeal. Now, Janke has petitioned the US Supreme Court for certiorari with the following two questions:

  • Can a known patentable product become ineligible for patenting when it is claimed to be made by applying a mathematical model of the product on a 3D
    printer?
  • Can it be too much patent “monopoly” to preempt (in practical effect) a mathematical model of a product, as no one is disputing follows from Gottschalk v. Benson, when it is known that it is not too much patent monopoly to pre-empt the real product itself?

Petition.

47 thoughts on “A Mathematical Model of a Rake

  1. 8

    Darn! I saw “ibid”, and misundertook it for ” I bid” and was expecting to see a dollar value. ugh, I’ve apparently got “commerce on the mind’ syndrome. I blame ebay for 50% of my malady, cuz I coulnt’a bid without ’em. !!

    The words “patentably distinct” kept popping to mind last week, not sure why. hah, thought just popped up to ponder whether, or when and how, a claimed invention could meet requirement for being patentably-distinct, and yet rightfully-deemed abstract, at the same time.

  2. 7

    So, he was trying for a product-by-process claim. Those are common in chem. arts when you don’t know how else to describe the final product in other ways. In this instance can the final product be patentably-distinctly described in other ways, than by a product-by-process claim ? Some probably believe it so. 🙂

    1. 7.1

      Not sure that “product by process” is applicable….

      1. 7.1.1

        Hey Anon, Maybe not as originally viewed, but inescapably the result of combining cls. 21, 26 is a product-by-process. So, maybe some of the reasons a product-by-process claim is sometimes unwise find a parallel here.

        If there were facts suggesting no other way to make the rake, I might think such claiming would be more permissible.

        note to self: Cl. 26 attempts to claim a result, so maybe its not so good for that reason alone as well.

  3. 6

    Is this just an old problem in new clothes? In the past, individual artisans were capable of making and using patented inventions. Was it worth it for the patentee to attempt to assert the patent against these individuals on a practical basis?

    The 3D printing revolution means that the raw number of these “artisans” has exploded, but the problem is basically the same.

    Efficient Infringement indeed.

    Maybe some mild criminal penalty for stealing a patented design?

    1. 6.1

      Lol marty – patent has no equivalent to copyright’s criminal penalties.

      Indeed, perhaps they should.

  4. 5

    Dependent claims depend on other claims. How can a dependent claim be ineligible, but the parent is not, when it includes all the parent limitations?

    1. 5.1

      . . . because . . . government.

    2. 5.2

      I’m not sure what claim 26 is, other than indefinite. Claim 21 would be treated by the PTO as a dependent claim for filing fee purposes but as an independent claim during examination because it purports to be in a different statutory class from that of claim 1. But apparently the PTAB determined that claim 21 was not in a statutory class so your mileage might vary.

      1. 5.2.1

        Respectfully, my friend with the shifting historical pseudonym, you might want to check your statement of, “But apparently the PTAB determined that claim 21 was not in a statutory class…

        Asserted to fail patent eligibility under 35 USC 101 is NOT the same thing (necessarily) as having a claim to something not within the statutory categories.

        The case law (e.g., Alice) was abundantly clear that the Supreme Court was (re)writing the statutory law so that things — on the record, and contested by neither side [so would only be an advisory opinion] — were in fact TO a statutory category. Hence, the Court’s use of the word “exception.”

        1. 5.2.1.1

          And in what statutory class is an abstract idea?

          Self-aware much?

          1. 5.2.1.1.1

            Far less need for ME to be self aware here and far more for you to understand that the Supreme Court determined claims unabashedly given to BE to a statutory class and still be deemed to be that “Abstract Idea” label that you use.

            As typical, you are in too much of a hurry (or unable, or both) to recognize that I have the far better legal point.

            1. 5.2.1.1.1.1

              Froth at the mouth much?

              1. 5.2.1.1.1.1.1

                Shifty, here I am calmly directing you to the facts and words of the Alice case and it is you that is getting all frothy.

                Take a breath.

                Now, what part of the Supreme Court using “exception” to claims admitted on the record by all parties to be directly covered by statutory categories are you having difficulty with?

                1. That’s the wrong question, Shifty.

                  Now if you simply referred to what the Supreme’s wrote in Alice, in THAT case it was claims fully admitted to be in the statutory category of Manufactures that were deemed to be Abstract Ideas.

                  The courts have taken claims fully admitted to belong to other statutory categories and labeled them as Abstract Ideas as well.

                  In other words, the one of Abstract Ideas has been mapped to the many of most ALL of the Statutory Categories.

                2. It’s not difficult for you to read the case is it?

                  Plus this way, you don’t have to try for any of that lame “broken link” stuff.

                  A win-win!

  5. 4

    Seems like 112 is a greater problem than 101. But then again, why bother with putting in the necessary 112 examination work when you’ve got the “swallowed 112” 101 at the ready.

  6. 3

    This “Rake’s Progress” makes for another interesting opera, but not being the one by Stravinsky is unlikely to get further staged.

    1. 3.1

      Also, as a practical matter, there is still a significant UMC and speed difference in the mass production of articles that can be stamped from sheet metal or injection-molded as compared to 3D printing.

      1. 3.1.1

        I suspect their concern is that someone will sell the *model* direct-to-consumers, who will print it themselves. So, is the unit cost still less after subtracting license fees for the patented design + Home Depot’s inventory/shipping costs + HD’s standard markup?

        Imho, the patentee’s bigger problem is likely to be the file-sharing norm, not direct-to-consumer model sales, but extra claims are still fairly cheap….

      2. 3.1.2

        Much like early “forecasts” as to personal computers, 3D printing (apparently) still suffers from a “who would need such a thing in a home” myopia.

  7. 2

    Math and mathematical models are ineligible for patenting (and always have been) because math and mathematical modeling (like logic) are fundamental parts of knowledge required for progress in the first place.

    The idea that a person who invents a widget can use their utility patent to prevent me from writing about or drawing or modeling their widget is absurd and disgusting. But it is the sort of idea we’ve gotten used to hearing from the eternally whining “libertarian property rights” (lol!) stenchpool.

    1. 2.1

      Not sure that there is any need to get into debates about math and logic. Is not the age-old “Library at Alexandria” argument sufficient to dispose of such claims?

      Concerning the books in the Library, the Caliph declared they should be burnt forthwith. Either they are compatible with the Koran, in which case they are superfluous. Or they contradict the Koran, in which case they are blasphemous. Either way: it is proper to burn them.

      Here, we have a claim to a thing X. The rights given by that claim extend to making, using, importing or selling X. If claim 21 or 36 do not extend the scope of protection, they are superfluous but if they do then they grant a wider scope of protection than the statute allows.

      1. 2.1.1

        Sufficient to dispose…?

        Why?

        Are you really that c1ue1ess as to not understand that a single innovation may well take the form of one or more of the statutory categories?

    2. 2.2

      … and for like the billionth time, Malcolm (purposefully) misconstrues the nature of the innovation.

      Reminder: each of the following are very different things, notwithstanding the four letters present in each:

      math (as in basic math)
      applied math (as in most all engineering)
      Math(S) (as in the philosophy of both math and applied math).

      The term “mathematical model” then would be understood (by anyone interested in being inte11ectually honest) to fall into the category of applied math, and certainly is a man-made construct worthy of innovation protection.

      As another reminder, take encryption for example: Malcolm please feel free to abstain from any use of any innovation that you would not want to provide innovation protection to.

    3. 2.3

      hypo

      Claimed is a composition of the formula: AxByCz ,

      in which A is selected from i,j,k ,
      B is c or m, and
      C is l, p, q or z,
      further proviso’d that
      x+y is in the range of about 1.0 to 5.0
      x+z is in the range 2.0 – 6.0
      but x can never equal y,
      etc.

      Do these types of claims define algorithms ? It seems rather…. oh… soooo mathematical to me ! 🙂

  8. 1

    IDK. On one hand, it’s a good thing(tm) to allow patentees to sue the real party at interest directly, rather than forcing them to drag small end-users into the lawsuit. E.g., computer readable media claims. So, if we’re going to have “judicially created exceptions” to the patent statue, we might as well have sensible ones…

    One the other hand, the “installing” and “applying” limitations makes this specific legal issue uninteresting. The patentee should have just went with conventional CRM claims.

    1. 1.1

      > uninteresting

      I’ll take that part back. Already, there are many companies that provide 3D printing services (i.e., their customers rent time on expensive machines). These claims probably read on those companies.

      Continuing my analysis above…it’s a little unfair, as those companies don’t care about whether the printed product is a patented rake, an old sailboat part, or an original work of art. But…they may be the only reasonable entity to license. See also the old copyright wars over Kinkos services.

      1. 1.1.1

        Yes, but are not companies providing 3D printed objects from software provided by others unlikely to provide enough patent infringement from printing for individuals to be worth suing for patent infringement for those print jobs unless the same print job was ordered by a large number of such individuals ?

        1. 1.1.1.1

          That “enough to sue” is very much a driving issue (especially upon maturation and 3D printers in the home)…

          1. 1.1.1.1.1

            Chinese or Russian disinformation. You said Chinese so it’s Russian.

            1. 1.1.1.1.1.1

              Hi shifty, we haven’t seen Tommy in awhile, so it’s nice to see that segment of you appears to be ok.

              And thank$ – you choosing to post to some random past conversation with your choice of nonsense is definitely an item that I have set up an enterprise from.

              1. 1.1.1.1.1.1.1

                You’re getting savaged over on the other thread. Need a lifeline?

                1. This goes along with your “frothy,” as is typical, your view of just whom is getting savaged is just off.

                2. The tu quoque fallacy is an attempt to divert blame. The fallacy usually occurs when the arguer uses apparent hypocrisy to neutralize criticism and distract from the issue.

                3. Lol / you need do more than identify a type of fallacy and accuse others of doing that.

                  Baseless accusations of yours fall to the very thing that you accuse — and not the first time that you exhibit such irony with your 0bsess10n over me.

                4. You mean “ditto”…?

                  You are not very good at this, repeating your mistake does not make it into a non-mistake.

                  But you be you, I will continue to enterpri$€ off of your choices.

                5. No, I meant Ibid. I agree with the consensus that you never went to law school. At least a U.S. law school.

                  Now change the subject.

                6. Here:

                  link to research.wou.edu

                  It is also for footnotes or endnotes – neither of which you used.

                  But to the actual point at hand, you need do more than identify a type of fallacy and accuse others of doing that.
                  Baseless accusations of yours fall to the very thing that you accuse — and not the first time that you exhibit such irony with your 0bsess10n over me.

                7. Broken link again. Can’t do the internets. Don’t know the law. Where did you go to law school? Direct question. It will not “out” you. If you went to law school.

                  Now change the subject.

                8. Thank$$$ for the multiple payout of your choices, Shifty.

                  No broken link (check)

                  repeat falsehoods of your post (check)

                  repeat false assertion – change the subject (check)

                  My replies have been and continue to be directly on the subject to which they are replying to.

                  This is classic 0bsess10n from you. And why my enterprising from YOUR choices works so well.

        2. 1.1.1.2

          I can image many several technical and legal solutions, so as a prosecuting attorney, I don’t want to waive my rights up front.

          I’ll again note that we have deployed some good-enough solutions to similar problems in the copyright area.

Leave a Reply

Your email address will not be published. Required fields are marked *

You can click here to Subscribe without commenting

Add a picture