The following is a really wonderful Guest Post from UC San Francisco Law School Professor Jeffrey Lefstin focusing on a recent ITC decision finding a claimed drill bit abstract because of its functional limitations.
Not too long after the Supreme Court decided Mayo v. Prometheus, I wrote an article suggesting, based on some of the history that followed Funk Brothers, that patents on ordinary industrial processes and compositions could become ineligible in Mayo’s wake. As the Federal Circuit has interpreted Mayo and Alice, some of that has come to pass. In the controversial case of American Axle v. Neapco, the Federal Circuit held claims to a process of manufacturing automobile driveshafts ineligible under § 101, because the claims were directed to ‘laws of nature’ and nothing more. And in Yu v. Apple, the Federal Circuit held claims directed to a digital camera ineligible as “abstract ideas.”
The latest development in that trend is the International Trade Commission’s decision in a section 337 investigation, In The Matter of Certain Polycrystalline Diamond Compacts and Articles Containing Same. [2022-10-26 [DI 783166].Commission Opinion] Affirming the Initial Determination, the ITC found that all of the asserted claims, directed to diamond composites that can be used in drill bits, were ineligible ‘abstract ideas’ under § 101.
The claims in the case were directed to polycrystalline diamond compacts (PDCs), which can be used as the cutting elements in tools such rotary drill bits. A PDC is composed of a diamond-containing layer (a “table”) bonded to a substrate. The diamond table is fabricated by mixing diamond grains with a metal-solvent catalyst, usually including cobalt. When the substrate and the diamond-catalyst mixture is subjected to heat and pressure, the diamond grains become bonded to each other and to the substrate.
The patents are based on the technique of fabricating the PDC at elevated pressures, at least 7.5 GPa. According to the patent specifications, PDCs fabricated under those conditions show improved diamond bonding and density, resulting in higher thermal stability and resistance to wear.
The asserted claims define the diamond table in terms of three kinds of properties: (i) structural properties, such as the size of the diamond grains; (ii) performance measures, such as the degree of thermal stability or wear resistance achieved in a compact; and (iii) other parameters, such as electrical conductivity or magnetic coercivity of the table, that are said to reflect the amount of remaining metal-solvent catalyst or the distance between the diamond grains in the table.[1] A representative claim is from patent US10507565, with the claim limitations at issue in the case highlighted:
18. A polycrystalline diamond compact, comprising:
a polycrystalline diamond table, at least an unleached portion of the polycrystalline diamond table including:
a plurality of diamond grains directly bonded together via diamond-to-diamond bonding to define interstitial regions, the plurality of diamond grains exhibiting an average grain size of about 30 μm or less;
a catalyst occupying at least a portion of the interstitial regions;
wherein the unleached portion of the polycrystalline diamond table exhibits a coercivity of about 115 Oe to about 175 Oe;
wherein the unleached portion of the polycrystalline diamond table exhibits an average electrical conductivity of less than about 1200 S/m; and
wherein the unleached portion of the polycrystalline diamond table exhibits a thermal stability, as determined by distance cut, prior to failure in a vertical lathe test, of at least about 1300 m.
All the asserted claims were upheld against enablement challenges under § 112. However, the Initial Determination found, and the Commission affirmed, that all the asserted claims were directed to “abstract ideas” and thus not patent-eligible subject matter under § 101.
How could the ITC reach such a result? While the reasoning is not always easy to follow (the Initial Determination dismissed the electrical and magnetic properties recited by the claim as “gratuitous rather than inventive”), the crux of the Commission’s decision is its finding that the claims recite desired properties but not the way to achieve those properties:
The claims here cover a set of goals for the PDCs that the specifications posit may be derived from enhanced diamond-to-diamond bonding. The claims do not recite a way of achieving the claimed characteristics; they simply recite the desired range of values for each characteristic.
The Commission acknowledged that the specification may have taught the conditions and input materials needed to make PDCs with the recited properties – consistent with its finding that lack of enablement had not been shown. But those conditions were not recited by the claims. According to the Commission, under the Federal Circuit’s decision in American Axle v. Neapco, “unclaimed features of the manufacturing process ‘cannot function to remove [the claims] from the realm of ineligible subject matter.’” (quoting American Axle). The claims were therefore directed only to the result or goal of a diamond table with the desired properties – an abstract idea under § 101.
The Commission thus held that a composition of matter or manufacture claim, which defines subject matter in part by effect or result, is patent-eligible under § 101 only if it additionally recites the process by which the claimed material is made. Otherwise, the claim is only directed to the abstract idea of achieving that result.
That is a remarkable proposition, and would represent a drastic change in the law. For it has long been settled that composition or manufacture claims may be defined in part by function or result, so long as the claims meet the definiteness and disclosure requirements now embodied in § 112.
It is true that for a time after the Supreme Court’s condemnation of “conveniently functional language at the exact point of novelty” in General Electric v. Wabash Appliance, 304 U.S. 364 (1938), the Patent Office and the courts were hostile to the use of ‘functional’ limitations to define compositions. In In re Fullam, 161 F2d. 247 (CCPA 1947), the Court of Customs and Patent Appeals considered a claim to a method for polishing a baked resin finish, which recited the use of a novel abrasive powder – the powder being characterized in the claim only by the property of forming flocculates with the abraded material. The CCPA held that when a claim defines a material “not in terms of what it is, but of what it does,” the claim was ‘functional’ and therefore unpatentable under General Electric. This theory survived through In re Fisher, 307 F.2d 948 (CCPA 1962), where the CCPA affirmed the rejection of a claim to a hormone concentrate defined by its potency. Now framed as a question of indefiniteness under of § 112 under the 1952 Act, (now § 112(b)), the court found the claim invalid because it defined “what that concentrate will do rather than what it is.” The courts did not invalidate these claims because the boundaries of the claim were unclear, or because the claims were broader than the disclosure. Rather, any use of functional language to define a composition was sufficient to invalidate a claim.
But after casting doubt on the Fullam doctrine in In re Fuetterer, 319 F.2d 259 (CCPA 1963)[2], the CCPA settled the issue conclusively in favor of such claims in In re Swinehart, 439 F.2d 210 (CCPA 1971). Swinehart considered the following claim to an infrared-transparent crystal (useful, among other things, for the front window of heat-seeking missiles):
24. A new composition of matter, transparent to infra-red rays and resistant to thermal shock, the same being a solidified melt of two components present in proportion approximately eutectic, one of said components being BaF2 and the other being CaF2.
Notably, eutectic compositions of barium fluoride and calcium fluoride were known in the prior art. The desirable properties of infrared transparency and thermal resistance arose from the conditions for preparation described in the disclosure. The disclosure even stated: “The essential feature of the present invention is the growing of the instant bodies under controlled conditions.”[3] Thus exactly like the claims in Polycrystalline Diamond Compacts, the claim recited desired characteristics of the crystal, but did not state how those characteristics were achieved.
The Patent Office rejected the claim as “functional,” because not all eutectic mixtures of BaF2 and CaF2 would have the properties of infrared transparency and thermal resistance recited by the claim. Reversing the rejection (and explicitly overruling Fisher), the CCPA held that there was nothing intrinsically wrong in defining a composition “by what it does rather than by what it is.” The court explained that the only issues from using such a mode of definition were (1) possible lack of novelty, where the functional characteristics were inherent in the prior art; (2) possible indefiniteness under § 112, where the language was not sufficiently precise to delineate the subject matter embraced by the claim, and (3) possible insufficient disclosure under § 112, where the breadth of the claim raised questions such as scope of enablement.
Subsequent cases confirmed that claims could define compositions by results or effects, where the results depended on the unclaimed manufacturing process rather than being derived solely from the chemical or structural properties recited by the claim. For example, in In re Miller, 441 F.2d 689 (CCPA 1971), the claim at issue recited a powdered PFTE composition defined in part by desired results (such as tensile strength when sintered), and in part by ‘gratuitous’ properties (such as dielectric strength), where the recited properties arose from the process of grinding the powder. The inclusion of properties that derived from the preparation did not even raise any issue at the Patent Office, the issue in the case being whether the powder could be defined by properties manifested only when the powder was sintered in a mold[4]. Likewise, in In re Roberts, 470 F.2d 1399 (CCPA 1973) the court approved of a claim to “Corrugated polyethylene terephthalate film having a surface coefficient of friction of less than about 0.40 as determined by the Bell test,” where the claimed reduction in friction arose from production steps disclosed in the specification but absent from the claim. According to the CCPA, “the absence in the claim of specific steps which would bring about the desired friction property is no defect. The claims define the limits of the claimed invention, and it is the function of the specification to detail how this invention is to be practiced.”
This line of authority is hardly obsolete. As recently as 2017, in BASF v. Johnson Matthey, 875 F.3d 1360 (Fed. Cir. 2017) the Federal Circuit relied on Swinehart to reverse a district court which had invalidated claims that defined a composition with functional language. Very much like the Commission in this case, the district court invalidated the claims for indefiniteness because they “recite a performance property the composition must display, rather than its actual composition.” The Federal Circuit reversed, holding that functional language was permissible so long as the claim satisfied the Nautilus standard of reasonable certainty.
But all that was before today’s regime of patent-eligibility, and before the Federal Circuit decided American Axle. When Professor Peter Menell and I filed our amicus brief urging the Supreme Court to grant certiorari in American Axle, one of the points we made was that, by making a claim’s alleged failure to describe how to carry out an invention a question of § 101, the Federal Circuit had effectively supplanted § 112. Whereas § 112 requires factual inquiries about what the disclosure teaches, American Axle teaches that under § 101 the only question is whether the “claim on its face” describes a way to reach a particular result.
At least in American Axle there might have been questions whether the claims met the requirements of § 112.[5] So perhaps we could justify the outcome in American Axle as an I-know-it-when-I-see-it test for lack patentability under § 112, much as Alice has become an I-know-it-when-I-see-it test for lack of patentability § 103. Yet in Polycrystalline Diamond Compacts the Commission specifically found that lack of enablement had not been proven. The claims were nonetheless invalid under § 101 as directed to results rather than solutions.
While perhaps surprising, the Commission’s decision is a logical development of American Axle’s approach. To quote American Axle, “features not claimed are irrelevant to step 1 or step 2 of the Mayo/Alice analysis.” The CCPA’s articulation of the basic truth of patent law in Roberts – that the claims define the limits of the invention, and the specification details how the invention is to be practiced – is arguably no longer good law following American Axle.
Rather ironically, the Commission’s patent-eligibility analysis begins with this quote from Classen Immunotherapies:[6] “The statement of patent-eligible subject matter has been substantially unchanged since the first Patent Act in 1790.” But if the Commission is correct in its application of American Axle, the Supreme Court and the Federal Circuit have swept away decades of patent jurisprudence. No doubt the judges of the CCPA would have been surprised to learn that the claims in Fuetterer, Swinehart, Miller, Roberts, and similar cases I have not mentioned here, were all “abstract ideas,” because the claims recited functions depending on “features not claimed.”
And when courts wrestled with the enablement of biotechnology claims in cases like In re Fisher, 427 F.2d 833 (CCPA 1970), or Amgen v. Chugai, 927 F.2d 1200 (Fed. Cir. 1991), where the claims recited molecules defined by their biological activity, the judges could have avoided painstaking inquiry into the facts of enablement, because the claims failed to recite how to achieve the desired activities. And today the Supreme Court can save itself a great deal of time in in the pending enablement case of Amgen v. Sanofi, because the claims are clearly directed to the ‘abstract idea’ of antibodies that block the interaction of the PSCK9 and LDLR proteins, without identifying how those antibodies are achieved.
The Commission’s decision is currently on appeal. No doubt the Federal Circuit could resolve the case, if it is so inclined, with an ad hoc rule that claims to compositions of matter are not directed to abstract ideas – much as Vanda imposed an ad hoc rule that methods of treatment are not directed to laws of nature.[7] But without addressing the deeper doctrinal and historical errors of American Axle (and ultimately Mayo), the courts may find themselves endlessly plugging their fingers in the leaking holes of today’s patent-eligibility regime. At some point we might come to think that the whole edifice is built upon a rotten foundation, and perhaps would be better swept away.
= = = = =
[1] Less remaining catalyst and shorter grain-grain distances are both advantageous.
[2] Fuetterer cited the 1952 Act’s new provision on functional claiming that now appears as § 112(f). Some, but not all, of the CCPA’s subsequent case law on compositions relied on this provision as well. Swinehart was not based on this provision, but the court took it as evidence that its approach was consistent with Congress’s intent. The CCPA extended the use of functional claiming to the radical group of a compound (as compared to an ingredient in a composition) in In re Barr, 444 F.2d 588 (CCPA 1971).
[3] U.S. Patent 3,766,080. Those techniques were described in the disclosure as “conventional crystal-growing techniques.”
[4] It could be so defined, according to the CCPA.
[5] In American Axle the district court denied the defendants’ indefiniteness challenge, and the defendants did not raise lack of enablement or written disclosure.
[6] 659 F.3d 1057, 1063 (Fed. Cir. 2011).
[7] But ominously, the Federal Circuit’s recent decision in Chromadex applies the Mayo/Alice two-step inquiry to a composition claim as an alternative analysis.
Isn’t this article and all these comments an overreaction to a mere ITC decision sustaining one of its administrative judges decisions based on 101? Do you really think the Fed. Cir. is going to sustain this? It’s a legal not a factual issue here.
Overreaction?
No.
You so miss the point that the faulty anti-patent “logic” is simply out of hand.
Do you really think the Fed. Cir. is going to sustain this?
The composition of the panel always matters, but to answer your question … Yes, I do.
The Federal Circuit keeps itching to clear cut more trees from the forest of patent eligible subject matter and this seems like a way to achieve that goal.
Paul, this whole thing is obviously a plot by the woke commies to burn down the lush forest of antibody therapies and replace it with the harsh desert of mandatory vaccination by Franco-Chinese chip promoters. If you’re not panicking, it’s probably because you live near a 5G tower.
Well, I guess this revises the James Bond movie title: “Diamonds, as abstract ideas, are Forever”
Come to think of it, many may consider “a women’s best friend” to be an abstract idea.
PM: “ Limiting the inventor to the particular structure (in this case amino acid sequences of the various key binding portions (CDRs) of the antibody), does not sufficiently reward the discovery”
What exactly was discovered and why is the reward not sufficient? Who will suffer if the reward is not as great as you believe it should be? Who will gain? Provide evidence and limit your discussion to the technology at issue here, i.e., antibodies.
Also, please identify in the specification of the patent at issue where support for the recited ranges may be found, i.e., where are examples of the allegedly novel structures presented which exhibit the limits of each recited range of properties?
The claim lacked sufficient structural limitations defining “what it is” as would be right for a composition claim but instead described in terms of “what it does” , or inherent properties, but yes beware the twisted arguments re inherency some might try to make towards negating patentivity (new word). The inherent properties of a composition otherwise shown/proven to be novel and non–obv. + useful cannot be used against it ! Its like the Fifth Amendment of patent law. Its popular a century in many fields like chem to use with polymers, their resultant properties in a claim defining them over prior art, same with the incandescent lamp, its inherent property was to be more durable, kinda like a diamond coating on a wheel. About 30 yrs ago I had taped Doug Blaze’s course on basic Fed. Civil Proc., one thing that always stands out was “How you state the claim is the most critical”. Sounds like the courts are saying: “More structural description please.”
I didn’t care for the use of “less than…” leaving it open ended just feels uncomfortable unless something defining in the spec.
Properties of are not “what it does.”
🙂 Sure they can be, “It melts” refers to something which happens at a particular temperature, hence, the concept of the melting point. What it does, is, it melts. Or boils, or has a Cp, etc.
No, you are simply incorrect.
Having a melting point is just not the same as the action of melting.
The property of is NOT the action of doing something related to that property.
but, all that which the thingy does, is frequently based on its properties, in the case of the subject patent, its cumulative properties, when viewed as a whole as it must be. Woods Alloy used in fire systems takes advantage of its peculiar melting properties, Thermometers use mercury, which has a known thermal expansive coefficient property. The uv-light blocking index of polyunsaturated alkyl chains is a property, and what it does is, blocks the sun from Momma’s shoulders ! So, obviously my position is that “what the thing does” can often be an equivalent albeit tacit way of saying “what it is”, and patent writers need to be mindful not to confuse them, in claim language. Sometimes there can seem no alternative way of doing it. Are we having fun yet ? 🙂
Jiminy the filter is hyper…
Your comment is awaiting moderation.
March 3, 2023 at 1:23 pm
Does and is are to be distinguished.
I “get” the fun that you are attempting to have, but all that you are going to do here is confuse the plebes
Nobody is interested in reading your j e r k o f f sessions, you ridiculous simps.
Too funny chuckles — especially given your drive-by emotive rants and lack — from you — of any substantive content in your own ‘sessions.’
Wasn’t it Landis, about 40 years ago in a book on claim drafting, cautioned that its a no-no to claim by “what it does?” I would hesitate to moniker anyone, b/c some simps seem still to be writing patent applications with improper claims !
But sometimes there is no recourse but to describe a bona fide invention by its properties, or “what it does”, since everything we do has a heavy empirical bend.
Case of polypropylene a famous polymer, possesses an avg. mol. wt., a melt flow rate, crystalllinity level, atatic fraction, isotactic fraction, and maybe a mesotactic, & al. properties.
During use of PP, manufacturing engineers lament problems, until new PP is invented…… but, how to claim it as a composition ? Can it be done, patentably distinctly, without reciting at least some of its empirically observed properties, which properties make it an advance in the art since it solves Mr. Engineer’s long-standing problem ?
They say “you need more structure of what it is, in your claims, not what it does”, but those actually intimate with these arts recognize that some ppl unvetted for certain positions in the judiciary making frivolous statements in court decisions, should be vetted, preferably swiftly. 🙂
I don’t know, is there a need for a Restatement of the law by a scholar with a little power , to clarify that sometimes an invention just can’t be described by what it is, and in some arts there is a need to recognize a claim language which does in fact define an invention in terms of observable behavior of the invention ? This whole notion extends into biochem and other fields, I’d like to see a Restatement case.
“But sometimes there is no recourse but to describe a bona fide invention by its properties, or “what it does”,”
yet again, properties are NOT “what it does.”
from another place, I reply to your
Hi cw,
anon left a new comment on …
“But sometimes there is no recourse but to describe a bona fide invention by its properties, or “what it does”,”
yet again, properties are NOT “what it does.”
Everything is defined by its properties. The properties you possess, inherently define what you do, would do, and will do, for, were your properties different, you’d not be the same. It could be genetics, or it could be Lysenkoism, but, properties baby, that’s where its at. Ask Trump, properties make ya what ya are, even if yer polypropylene. I covered for ya when mom asked about , the stains, ya know Jennifer. Gettin kinda tired of this….
“Gettin kinda tired of this”
That’s because you are still wrong.
Confusing “is” and “does” does not help anyone.
In fact, your assertion leans into the Malcolm fallacy, to which my rejoinder of having a Big Box of Protons, Neutrons and Electrons would make mine the last patent ever — and everyone an infringer.
…it could be Lysenkoism…
link to open.spotify.com
Polymorphs – crystalline forms of a compound. Please tell me how to described it in a claim other than by its properties, eg., DSC, XPRD?
I find the use of section 101 to invalidate a fairly non-abstract drill bit invention disturbing. I think the fundamental problem is the judges of the ITC, like the judges in the CAFC, are largely from a non-scientific or non-engineering background. The judges are so ignorant of science and technology that they see everything technological as abstract. Section 101 is a great escape from having to understand the spec based on a judicially created legal exception that should be used only under extreme situations. The judicial opinion that a claim is functional should simply trigger means plus functional restriction on the breadth of the claim limited to the means stated in the spec and not invalidate a genuinely novel and useful invention. Bottom line: we need judges with technical background by creating a specialized court for patent for patent matters like Ronald Reagon originally intended when he created the CAFC.
Actually, Jimmy Carter thought up the CAFC and Reagon signed the Bill.
But I agree with you Jr. The way I get over this sometimes is ask people to image the set of solutions that read on the claims. That makes things real.
The judges too are being appointed by Google (for real) and promise to “get patents under control” as part of the deal to be nominated to the court.
A complete Wokie shxt show.
Just note the way the author tries to tie in functional claiming with these claims when the issues are different.
I would expect that this author and his law school have been taking money from the anti-patent crowd.
Probably got his job by first having to lick Lemley’s toes and then Lemley approves him and Google gives money to the law school. That is what is going on.
You need help.
Indeed, Breeze I do need help fighting the corruption. You may not like how I put it but the reality is that Lemley is acting as the door keeper deciding who gets the IP jobs at universities backed by 100’s of millions by Google. Hire who Lemley says or no donation for you.
Reality. Try it. You will sleep better.
What you view as corruption Malcolm views as “rightthink” (and vice versa).
link to uploads.disquscdn.com
That’s pretty funny.
Bizarrely and ironically odd, coming from you, oh master of the One-Bucket, but funny nonetheless.
Thank you for the constructive input. I like the argument of viewing claims as a set of solutions. I assume you were not talking about me being part of the anti-patent crowd since I was arguing for eligibility under 101 since a physical drill bit is not very abstract. As an examiner, I saw a look of abstract applications in business methods that needed a rejection but a drill bit would not qualify. However, it is important that we maintain professional decorum since it is part of the ethics rules at least in this forum. Please restrict any references to foot fetishes to the proper forum like fetlife.
“However, it is important that we maintain professional decorum since it is part of the ethics rules at least in this forum.”
Sure — and where would such (unbinding — and certainly LARGELY unenforced) ethics rules be found?
Last time I checked the ethics rules, patent attorneys have to also follow the state bar ethics which vary by state. My state requires professional decorum. Your mileage may vary depending on the state you are licensed in. Lawyers are supposed to enforce the ethics rules by reporting one another. Indicating the author is sucking toes is a pretty low level threat to the profession’s reputation, i.e. obliquity, and there are 1st Amendment concerns that make the speech arguably protected but who the heck wants to litigate this in front of a bar grievance committee. (Not me.) Lets just keep on the safe side of the rules and keep things civil. I like Prof. Dennis Crouch and appreciated the hard work he does to keep this blog going. No need to insult anyone, but we can disagree on the law.
Jr,
You missed my point and missed it badly.
Notice that I quoted you directly to your assertion of, “at least in this forum.”
Your reply moves the goalposts to this notion of state-by-state actual rules — which have nothing to do with this forum, and instead largely have to do with decorum in front of tribunals and official bodies — and most definitely NOT in this type of forum.
Shall I repeat the question for you or are we you going to admit that you pulled that statement of yours out of your arse?
Do ethics rules apply to AI ? Will a time come when systems which are “certified AI” , registerable as having somehow been berthed ? Or am I totally off, and there are no analogies btw. AI and a Ship at sea under contract ? haha 🙂 Fractures in the banking system teeth, maybe someone got a rock in their soup. Ough.
Hi Chrissy.
Why would you expect ethics (a very real human term applying ONLY to humans) to apply to AI?
Yes, you are totally off – the notion of ‘being birthed’ definitely falls to one of my favorite terms: anthropomorphication.
I do note your attempt yet again to insert into the discussion admirality law.
That law still is not applicable.
Not sure where you are attempting to go with the banking system comment – that’s unrelated to anything of patent law discussions here.
Off-topic:
I’ve got a number of different applications in a design unit at the USPTO where Office Actions were counted months ago but not yet mailed (one was counted in early November 2022, another was counted in early December 2022, and so on).
I made In re SurgiSil arguments in all these cases. Are there any “holds” going on in design units while new policy is being put in place? Possibly a PTAB decision the TC is waiting on?
I’ve never seen a 4 month delay between counting and mailing of an Office Action.
Thanks for the update, ipguy — I have been waiting to see what comes of your plight with In re SurgiSel…
Wabash did not ban all functional claiming. Instead it found that “a limited use of terms of effect or result” may be “permissible or even desirable” depending on the invention.
It’s very difficult to fashion bright line invalidity rules, because the question often turns on particular characteristics of the invention and the art.
The very real “brightline rule” is the rule Against brightline rules — as has been (re)written by the Judicial Branch.
Bros, did you guys hear that the state govs are starting to disagree with the supreme court justice newly installed on the definition of woman?
link to youtube.com
How can they be stopped bros?
Not sure there is a “disagreement” given that the latest Justice refused to answer questions in the subject averring instead that she simply was not qualified as she was not a biologist.
They don’t agree that biologists should be in charge tho.
“They don’t… though”
No one ever indicated otherwise, nor would anyone even remotely do so, as the end game is (and ever has been) power.
See Mao.
What? The justice clearly implied that biologists were in charge of the definition of woman.
“Can you provide a definition for the word woman”
“I can’t… I am not a biologist” (clearly implying only biologists can define the word woman definitively)
In any event, in other diversity and inclusion news, some good news today (or I’m just seeing the article on yahoo today tho it’s a few months old). Federal prosecutors are finally cracking down on Hawaiian suprem acists. Soon hopefully wh ite people will in fact be able to live in native villages and be included in a newly glob alized hom ogenized cultural area.
link to apnews.com
Apparently the judge acknowledged that in general the natives involved were not ra cist, but apparently found that on the day of the attack they were. I presume this being because normally they have no power for the power+priv=ra cism formula, but on that day they seized power and had some priv thus yielding ra cism.
cont.
link to yahoo.com
You are confusing who may define with who will have (and maintain) power.
Don’t forget the power to 1984 something (Those defining terms are doing so UNDER the power of someone else).
The “power +” aspect disappeared the day that Biden was elected.
A game being played here even by the title is “functional limitations” being blamed for the ineligibility.
But the problem isn’t “functional limitations” but intended result limitations. This is a very different issue.
“The claims here cover a set of goals for the PDCs that the specifications posit may be derived from enhanced diamond-to-diamond bonding. The claims do not recite a way of achieving the claimed characteristics; they simply recite the desired range of values for each characteristic.”
Please stop the propaganda. Functional limitations are the only way to write a claim to modern technology whether it be mechanical, electrical/electronic, or information processing.
I’ve quoted from books used at MIT that say exactly this. Half the CAFC judges lie about this and should be removed for doing so.
And note too people like Lemley constantly misrepresent this issue. And try to take away what a person skilled in the art knows for the set of solutions for a functional element.
Just think Lemley has made $10’s of millions burning down our patent system. The typical elite neo-Marxist.
… and to your technical notation, I have added notations in the legal context.
The epitome of inte11ectual dishonesty is to pretend that these points have never been presented.
>intended result limitations.
Even that might be a bit unkind here. Stripping the claim down a bit, we have:
18. A polycrystalline diamond compact, comprising:
a polycrystalline diamond table, at least an unleached portion of the polycrystalline diamond table including…
…
wherein the unleached portion of the polycrystalline diamond table [has certain properties] ….
That is a completely ordinary ‘structure’ claim format.
As others have pointed out, the spec has to describe how to “make” that structure. But, importantly, the claims don’t need to recite those operations.
I’d even say “shouldn’t recite those operations.” While it’s admittedly becoming more acceptable nowadays, the traditional rule was that a claim reciting both structural limitations and method limitations was invalid.
Yes, I agree Old Curmudgeon. But my point is that this is different than functional claiming. This is really an issue of how much structure has to be included in a claim that also recites properties of the structure. This is very different than functional claiming to capture a family of solutions.
Is the first part sufficient?
a polycrystalline diamond table, at least an unleached portion of the polycrystalline diamond table including:
a plurality of diamond grains directly bonded together via diamond-to-diamond bonding to define interstitial regions, the plurality of diamond grains exhibiting an average grain size of about 30 μm or less;
a catalyst occupying at least a portion of the interstitial regions;
>But my point is
It’s my fault for the confusion. I worded my 1st sentence poorly. And should have responded to one of the people below actually arguing “functional claiming.”
When the DOJ refused to render protection to John DOLL for stealing from me and then selling my claims before he even stole my folded claim. … with Litman. It was surely very very very bad. Now they are doing the same to TRUMP. So why was I denied Due Process or Counsel? Would a good and honest Judge allow me no counsel or due process? Not goood and honest, that’s the operative phrase. TODD started this then retired. Is he proud of allowing all this crime he allowed them to cover up, when the DOJ was against it. Hey Jimmy, Jimmy Todd you must be either a catholic or a non believer in the constitution.Maybe even both. Or was it for Eddie Bryant because he was counsel. Then put on the Bench to block me. Why didn’t the DOJ charge him?
And just the tiniest bit of digging will also expose “W”.
MAYBE it had to do with Litman’s partner Bruce Lehman former US ATTY. then Commissioner of Patents.
We mechanical types can only sit back and laugh (or perhaps cry). Daily we fight Examiners who force us to recite more and more structure in a claim, while the Office issues patents to drugs that claim nothing other than a desired result (oh, isn’t “efficacy” such a n-i-c-e word?)
I do some mechanical work for an international machine manufacturer.
I have the same problem. They try to get me to recite structure for functions that can be performed by many different mechanical parts.
a pet peeve of mine: CLAIMED efficacy terms are alarming NOT within the possession at time of filing (given how many items covered under patent
F
A
I
L
to show the claimed efficacy at FDA tr1al stage.
Even claims that ALSO have structure…
In other words, this WHOLE “must have structure” dust cloud is a red herring.
In the hope of prompting useful comments in reply, I am running the following thoughts up the flagpole. It seems to me that it is the ineffectiveness of objections under 102, 103 and 112 that is driving the trend to throw everything out under 101.
The “abstract idea” litmus test is problematic but so too are “parameter claims” in general.
Thus here. The skilled person knew the relationship between the recited material properties and drilling performance. Further, the skilled person knew that increasing the sintering pressure would improve these performance-relevant material properties. So, when the contribution to the art is the use of a higher sintering pressure, don’t claim simply that. Instead claim the resulting product, defined by its material properties. That’s an idea in the mind of the patent attorney. I wouldn’t call it “abstract” though.
Pity that, here, there isn’t a patent family member at the EPO, for comparison what objections to patentability would have been raised.
Regularly assessing the alloy claims of the competitors of my metal industry client leaves me weary and cynical about such “parameter claims”, which are hard for a Patent Office to filter out, ex Parte, with the classic tools of 102, 103 and 112 . They need to be filtered out, but how shall a poor beleagured Patent Office, under the cosh of efficiency-seeking management, do it effectively?
Caught in filter…
awaiting moderation.
March 2, 2023 at 7:35 am
“prompting useful comments”
Please define what YOU mean by “useful?”
Useful for whom? For which legal realm (Sovereign)?
As for your choice of 1d10m, “run up the flagpole” is a p00r choice (seeing how often you lean towards your spectacles).
The far better choice would be:
“Throwing
C
R
A
P
against the wall to see what sticks.”
Here’s a flagpole for you to rally around:
The Ends do not justify the Means.
No matter what Ends may be floated for misuse of 35 USC 101, such remains misuse.
101 has (quite obviously [pun intended]) turned into a scorched earth weapon when is was intended to be a welcoming wide open gate with (merely) two rather low bars:
The innovation requires utility.
The innovation must be claimed in at least one of the statutory categories.
That
Is
It
ALL else is nonsense.
MaxDrei,
Per chance dwell on your mistaken views in the number of “useful comments” that your post here (and at least at PatentDocs as well) have ‘earned’ you.
It’s not the end of the world, anon, that my posts here and on PatDocs have failed to draw any useful comments. The very fact that nobody has anything useful to say in reply speaks volumes. The conclusion you draw is that my viewpoint is “mistaken”. The one I choose to draw is that nobody feels the need to correct anything of what I have written.
On to the next thread, eh?
Of course, you view your ASKING being unanswered as “comforting” to your questioning.
This is only ever more the fault in your throwing
C
R
A
P
against the wall.
You refuse to learn from this and thus doom us all to trodding around that very small block that you circled about your four plus decades.
Maybe someone should drive one of these drill bits into the heads of the people at the ITC who decided this case. When charged with murder, his can will be, “Not guilty – there’s no murder weapon, because a drill bit is an abstract idea.”
How many of the litigators arguing these cases before the SCOTUS have personally prosecuted a substantial number of patent applications?
Is there a number less than zero?