Certiorari Denied in Eligibility Cases

by Dennis Crouch

In spite of robust amicus backing, including from the US Solicitor General, the Supreme Court has declined to review two pending patent-eligibility petitions: Interactive Wearables v. Polar and Tropp v. Travel Sentry. These cases contended that the Alice/Mayo framework produced (1) instability and unpredictability in the law; (2) facilitated non-evidence based judgments by district courts; and (3) prohibited patenting of subject matter that has traditionally been eligible for patents.

In my perspective, these cases wouldn’t have led to pro-patentee opinions from the Supreme Court as the inventions involved were not firmly rooted in technology. Rather, the court would likely have regarded the appellate cases as correctly denying eligibility.

The case of utmost importance still awaiting judgment, in my opinion, is CareDx Inc. v. Natera, Inc. CareDx is centered around the eligibility of an important diagnostic method for early detection of transplant organ failure. In this instance, the patent holder (Stanford University) solved a significant, longstanding problem that others had been unable to resolve. However, the lower courts determined that the patent claims were improperly directed towards a law of nature. Another petition pending before the Court is the eligibility appeal in Avery Dennison Corp. v. ADASA Inc. In the Avery Dennison case, the patent for RFID unique-ID encoding was deemed eligible and therefore valid on debatable grounds. The patent challenger has petitioned the Supreme Court, arguing that the lower courts are unduly narrowing their eligibility assessment.

A further petition, Killian v. Vidal, was reportedly filed in April but has yet to appear on the Supreme Court docket. Killian’s patent application proposes a computerized algorithm for detecting “overlooked eligibility for social security disability insurance.” The petition contends that the uncertainty created by the courts, along with the non-statutory eligibility exceptions, amount to violations of the Administrative Procedure Act (APA) and Due Process. Furthermore, the petition asserts that these judge-made exceptions “overstep the constitutional authority of the courts.” This petition has a minimal likelihood of being granted.

= = = =

The court also denied certiorari in the skinny-label FDA-Patent case of Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline LLC.

203 thoughts on “Certiorari Denied in Eligibility Cases

  1. 16

    If ya all can get the practice of Dueling re-lawfulized, then reckon most of the blather on blogs and even physical loci would become quickly more pleasant. I sense the legislatures lack any guts to do it, but there is always hope for every tragedy. :)

    1. 16.1

      meh Chrissy,

      Let words be used to fight with words.

      (note that those who typically oppose me simply won’t engage on the merits).

      I am perfectly happy to deal in both logic and snark, as each have their place – especially on a blog, and especially as I will deal with both and engage on the merits of opposing views (when such ever are put forth).

      1. 16.1.1

        Oh no, Wendy, ha ha, my selected pronouns in the message were “ya all” as it was a general snick-joke for the collective needy lawyers who are humorists as well. But , idk , I hope you didn’t think it was about you. :)

        What amazes me is that the el presidente candidates never yet mentioned “I will be the Pro-Patent President , if erected”. Who will be the first candidate to come in with, loudly “and give those inventors their day in court”… rah rah rah, to the cheers of crowds ??? Maybe Ms. Harris, in her run against the current Fla. governor. I do hope you are fine, I enjoy your postings, but only if you are the person I think you might be. Otherwise, not so much. hahahaha

        1. 16.1.1.1

          I did not take it to be about me (per se, or as such), but as a general “let’s be nice” — which is something that simply does not accord with the foundations of our First Amendment.

          Sure, being nice is, well, nice, but being nice is simply NOT always in order.

          And if you think Ms. Harris has ANY substance, I do have to wonder what substances you have been ingesting.

          1. 16.1.1.1.1

            ok, but there was no question, and you answered. If you can bottle that spunk up, I bet you could sell it.

            1. 16.1.1.1.1.1

              You are somehow thinking that there must be a question for a conversation to ensue….?

              That’s rather odd.

              1. 16.1.1.1.1.1.1

                Aw, shucks no. I’d just saw evidence that you can’t resist but to reply to everything. But I can’t hold back the truth, it appears you’ve kicked everybody’s A most of the time on topics here. Are you really Judge Newman, posting anonymously perhaps ?
                I love you Sally. :))))

                1. LOL – you appear to be falling to the (purposeful) misapprehension that I “can’t resist.”

                  My choices are not a matter of lack of ability to resist.

                  I do enjoy the combination of last AND best word.

                  But to point here, no I am not Judge Newman (albeit honored with the comparison), and most often do push for engagements with those with whom I disagree as I do in fact most always do have the better position, and it is a function of those pushing agendas with the more p00r positions that they tend to run away from the engagements (while insisting on returning again and again on newer threads with the same positions that I have debunked).

                  If my erstwhile ideological combatants would engage to the logical ends AND learn from our encounters, you would likely see a lot less of my replies.

              2. 16.1.1.1.1.1.2

                I look also at areas outside of patent law, which impact the ‘property rights” of patentees, without claiming to have any credentials. Example, isn’t it amazing the Sup. Ct. is still seeing issues like this: link to scotusblog.com
                …. all these years later. Noteworthy was the commentary in Yale’s Law Journal at 47 Yale L.J. 1336 1937-38 titled “The Demise of Swift Tyson”. I sense the schools don’t teach the ramifications of these sorts of cases, but then again, as the Yale artle mentions, few took notice evan at that time. hahahaha. I bet a pot could be stirred by penning something along the lines of: How the decision in Swift impacted patentee rights 85 years later”, etc. :)

                1. A sincere thank you Chrissy.

                  The Mallory case is an interesting one.

                  Do you see a parallel in the current patent forum shopping debacle (forum shopping ongoing by both sides of the ‘v’)?

                  For me, the notion of a corporation willing to take the benefits from doing business in a State is decisive as to the risk such a choice engenders with being sued in that State.

                  This is a corollary to the adage that my Uncle Ben used to say: with great power comes great responsibility.

          2. 16.1.1.1.2

            Oh Carol, I’ve been such a fool!

            “For me, the notion of a corporation willing to take the benefits from doing business in a State is decisive as to the risk such a choice engenders with being sued in that State.”

            Of course, absent some possibly unconscionable action, no reasonable mind expects to be able to obtain the benefits, without being subject to the detriments of doing business in a forum /venue.

            But, as the Sup Ct. once ruled, I think it was in a social security case, back in the 40’s, even the mere ability to access a benefit is enough to make the person to be subject to, even if the person has not actually received a benefit.

            The forum shopping…. let me suggest that within mammalian cells, there is necrogenic radiation emitted within during the apoptosis process, this radiation is em waves, and there is also called mitogenic radiation, that which stimulates cell growth. In Law, as time passes, old laws die and new ones come about. In bio, the mitogenic radiation band overlaps with the necrogenic. Now, if we have some impurity in the system, say, a foreign fluorescent molecule, it can be seen perhaps to “shunt” some of the necrogenic energy, into the mitogenic, causing unregulated proliferations. I tend to look at the clearly-bogus forum-shopping shenanigans, as being that foreign fluorescent substance, shunting the energy of the entire Legal Organism’s effort, in a direction leading to increased entropy in the short term.

            It’s all Equity, and with Equity, anything is possible ! Outcomes depend on the equitableness of the parties. Some parties are more equitable than others, but all parties are Equitable. haha, said Orwell never !!

            Do States have standing to challenge, anything about which forum is selectable by parties suit to anything ? Yes, I know you have answers for this, and all I can suggest is… grab some popcorn :)

            1. 16.1.1.1.2.1

              It seems not as a state’s rights issue of course, but that issue still plays on. Why move a case from Texas to California ? oh, its a federal matter, the states have nothing to do with it…. wrong. Its all about the state’s rights, albeit veiled. Because the ppl who would decide a case in District East in Texas, are Texans and same in other venues. So, technically not “states rights”, but de facto the venue change bullcrapola is about states rights, at a level I don’t have the tools to properly argue it, because I am a vegetable mechanic. :) laters taters :)

  2. 15

    On the other blog, Judge Moore says she is not the complainant. Should she transfer the inquiry to a different circuit?

    1. 15.1

      Taranto is mentioned in Newman’s complaint, and given Newman’s dissent in Yu v Apple I have the feeling that Newman and Taranto do not appreciate one another.

  3. 14

    While leaving from Pres. Trump’s inauguration, Pres. George W. Bush was famously heard to remark about the inaugural address “that was some weird s#!t.” Reading the 17 May remarks so far on this thread reminds me of that story.

      1. 14.1.1

        Interesting comment as it provides you with the justification for the defamatory and disruptive comments.

        Dennis, really? You have people defending writing defamatory comments because they feel the people on the other side the argument are “war criminals.”

        Please enforce some rules.

        1. 14.1.1.1

          Friendly reminder: This whining defender of a bona fide war criminal is the same guy who compared **critics of software patenting** to Islamic ter ror ists.

          Keep it up, gramps.

          1. 14.1.1.1.1

            Personally retraining thrn gutting the loose lips in the Secret Service and the FBI comes to mind. WTF are you waiting for? The election regarding Clinton and Trump screams Swiss cheese regarding loose lips.
            Although I am thankful personally.
            My cases show this was slowly becoming what it is. I can’t believe that it has gone this far down the road.
            How long before the U S remains the head of all non lips.

          1. 14.1.1.2.1

            Is he any different than Clinton, Obama, or Biden in that regard, or are you only able to see “R” in this aspect of your world view?

            1. 14.1.1.2.1.1

              Oh, lookie, one of the little f a s c i s t lizards showed up to gaslight everybody as soon as one of his kind got labeled correctly. Let’s watch him dance.

              1. 14.1.1.2.1.1.1

                Your reply is empty, misses the mark and merely employed your own
                A
                O
                O
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                M
                D

                As typical.

              2. 14.1.1.2.1.1.2

                “Oh, lookie, one of the little f a s c i s t lizards showed up to gaslight everybody as soon as one of his kind got labeled correctly. Let’s watch him dance.”

                MM said as Ukrainians are currently doing his bro Biden’s war crimes for him. On MM’s behalf no doubt.

                1. Careful there 6 as you might expose the giant hypocrisy of “we must have secure borders (for Ukraine), while our own Southern border is left to be run rampant over with a veritable explosion of law-breaking illegal crossings (replete with drugs such as fentanyl, human trafficking, and yes (oh my) guns), to be met with the oh-so-Martha-Vineyards NIMBY and DE-sanctuary city aspects.

                2. Gaslighting nonsense from the Incel Brothers. Again. Crawl back in the sewer, cr ee ps.

                3. You clearly do not understand the term ‘gaslighting’ even as YOU are the one that most often does it here.

                4. “Gaslighting nonsense”

                  Lol WUT? He literally is having a proxy war. His general literally said so. Just because you’re uninformed doesn’t mean the world stopped existing old man.

                  link to youtube.com

                  Or are you stating that Ukraine is not doing war crimes (while acting as our stand in against russia)? Because I have the vids of that as well (literally saved on my comp). As in the actual vids of the actual acts. They’re not super hard to find if you know where on the interbuts to find the good stuff from the Ukraine war.

                5. “be met with the oh-so-Martha-Vineyards NIMBY and DE-sanctuary city aspects.”

                  You’ll be glad to know that leftoid policy on top of leftoid policy has finally created a migration crisis in NYC according to mayor Adams who thinks nobody believes him when he says it is a bona fide crisis.

                6. His general literally said so.

                  What do you mean when you write “his general”? Whose general? Surely not Biden’s.

                  Gen. Kellogg retired from active service in 2003, well before Biden’s tenure even as Vice President, let alone his tenure as President. Afterwards, Gen. Kellogg served as Vice President Pence’s national security advisor, and briefly as Pres. Trump’s acting national security advisor following Gen. Flynn’s departure.

                  Gen. Kellogg has no connection—either formal or informal—to the Biden administration.

                7. “Bush and Biden equally culpable for hundreds of thousands of civilian deaths caused by a war based on intentionally manufactured false pretenses because … 6chan has saved videos of “Ukrainian war crimes.””

                  I literally never said that ta rd. I said that you were busy telling us what you stated while at that very moment your man was having his proxy army fight russia and engage in war crimes in so doing. That is, I comment on the timing.
                  That does not however make muh culpbility equal. And the gee dub iraq war is a ridiculously complex topic that I’m not even going to get into.

                  “Okay, Incel! ”

                  Still misgendering me and denying black and/or brown grls are humans eh big ot? Just can’t help yourself can ya?

                8. “What do you mean when you write “his general”? Whose general? Surely not Biden’s.”

                  That’s my bad, was the wrong vid, the vid I’m thinking of was not of a retired general it was of active staff, tho I may have been thinking of the defense sec not his general. I will find it and get back to you when I can.

                9. Not the one I was thinking of anon, I’m thinking it was actually probably Biden’s defense sec. In any event, that dude is obviously wrong, while ukraine may formally do well at the negotiating table and reclaim some ground, they’ve already lost the “war”, nearly half their population is gone, and most of that which left will never return. Sorry, that’s losing. For all intents and purposes, regardless of what is “gained” at the negotiations ending the war, they lost overall. And to be fair, it was an impossible war for them to win in the first place.

                  This is a sort of situation like in Tiger King: “I will never financially recover from this”.

                  For Ukraine it’s: “I will never actually recover from this in 4 lifetimes, maybe not ever”

                  If it could be said that old school russians wanted to genocide the Ukrainians back in the day, it’s been half achieved, again, in this war.

              3. 14.1.1.2.1.1.3

                Bush and Biden equally culpable for hundreds of thousands of civilian deaths caused by a war based on intentionally manufactured false pretenses because … 6chan has saved videos of “Ukrainian war crimes.”

                Okay, Incel! But don’t lose focus on the pizza parlor basements.

      2. 14.1.2

        Felony coercion was accomplished when my mail went to BETHESDA, MD, instead OF LEESBURG, VA, then blocked from being delivered in NH and MA to form the criminal pact.
        After that they gave the atty. Knowledge of the gift to drop his NH license, tell me why should this Atty. or others with the knowledge not have reported to both NH and MA legal bars. And if the conspiracy and felony coercion were. Werr letters from MA and NH emptied out and replaced with either nothing or lies.

  4. 13

    A subtopic has evolved in this group of comments.

    Let’s be real: the people that degrade the dialogue are the anti-patent judicial activists and others. MM, Martin, and others resort to defamation to try and “cancel” comments they disagree with. Over on ipwatchdog, the moderators don’t tolerate the base defamation that MM and Martin have engaged in. They get banned and their comments deleted.

    We need that type of moderation on this blog. One reason not to use your real name is that commentators like MM will with zero evidence call you base names and accuse you of committing heinous felonies. Who wants to comment on a blog where comments are left up that defame you and are clearly posted with an intent to silence you.

    Really, Dennis, you need to stop allowing these types of comments and commentators.

    1. 13.1

      And Martin commenting about this topic is rich. He is one of the worst in terms of defaming people and writing comments that are actually actionable. Martin really should consult with an attorney before he continues.

      It is despicable (and actionable) behavior from MM (Prophet) and Martin and Dennis should not tolerate it. Accusing people of heinous sex crimes is per se defamation (statutory in some jurisdictions) unless you have some evidence, which we all know you do not.

      And Dennis should realize the intent is to silence dissent, which, in and of itself, is something Dennis should find reprehensible.

      1. 13.1.1

        I disagree, Night Writer.

        Merely “finding reprehensible” invites the type of disdain for First Amendment (as I indicate in 9.1.1.1.1.

    2. 13.2

      Still waiting for that list of commenters that you’ve sued for defamation. When can we expect to receive that?

      1. 13.2.1

        He’s been distracted. Yesterday he chased a bunch of woke kids off his lawn and his favorite onion belt broke.

      2. 13.2.2

        Breeze, tell us where you stand on what I wrote. And, really, “still waiting”, when did you start to wait? And, where did I say that I had sued one of the commentators?

        Obviously, you want to deflect.

        1. 13.2.2.1

          You posted that you have sued and will sue posters who have defamed you.

          You also have posted under your anonymous screen name that Mark Lemley takes bribes from Google and that J. Stoll of the Fed. Cir. is “mentally unsound.” (Yes, that’s a verbatim quote of your post on J. Stoll.)

          If it’s your position now that you didn’t say 1) that you have sued and will sue commenters on this site, 2) that Mark Lemley has taken bribes, and 3) that J. Stoll is mentally unsound then you are a l!ar.

          Feel free to sue me, you ridiculous nut job.

            1. 13.2.2.1.1.1

              You’ve also accused me and others of being “paid to comment here.” Numerous times, even after you were told that was not the case and after you were asked to stop doing that because it was a l-i-e. Does that help refresh your memory, gramps?

              1. 13.2.2.1.1.1.1

                even after you were told that was not the case and after you were asked to stop doing that because it was a l-i-e.

                Most definitely, a case in which Malcolm NEEDS to practice what he preaches.

          1. 13.2.2.1.2

            “J. Stoll of the Fed. Cir. is “mentally unsound.” (Yes, that’s a verbatim quote of your post on J. Stoll.)”

            I’ll back that as hard truth. 3rd rate intellect, and she’s written the opinions to prove it.

            That said – opinion isn’t actionable

              1. 13.2.2.1.2.1.1

                Smelly does a triple Malcolm:

                Using “folks” to one-bucket in a non-self-aware political sense.

                A word of advice for you, Breeze: stick to patent law.

              2. 13.2.2.1.2.1.2

                You’re so uncivil that other blog banned you while you were using another name.

                1. Was Breeze banned?

                  I am not so certain about that.

                  Further, merely being uncivil will NOT get you banned.

                  You must also have a reckless disregard for fact, law, or both.

                2. Pretty sure it was the same guy – there’s only been one and Breeze is the only psycho who can’t resist spewing insanely-left politics into every post while being nasty to everyone.

                3. Someone did point out (even as they may easily be confused for each other when veering into politics) that Breeze was indeed ‘traceable’ to a different poster, and that the current nom de plume is not in fact one that had been booted from IPWatchdog.

                  I could be wrong on this.

          2. 13.2.2.1.3

            Breeze, you are mischaracterizing what I’ve said.

            (3) I did say that Stoll is “mentally unsound” and that is from first hand conversations with her. Sitting in the same room with her. And with talking to people who worked with her at Finnigan.

            (1) Where did I say I sued a poster? I didn’t say that.

            (2) I have said that Lemley has received a lot of money from burning down the patent system. And his wife is a former Google executive. How Lemley has made money is complicated.

            1. 13.2.2.1.3.1

              ” I did say that Stoll is “mentally unsound” and that is from first hand conversations with her. Sitting in the same room with her. And with talking to people who worked with her at Finnigan.”

              Her rep at Finnigan is less than stellar, and from a single first-hand encounter with her I am not impressed by her intellect or by her integrity.

              If any one judge at the CAFC should be tossed I vote Stoll, Chen, or Reyna

  5. 12

    Does anyone have a theory on why the Supreme Court asked for the Solicitor General’s views in these three cases, then denied cert? It used to be that if the SG recommended grant, the court would grant something like 90% of the time. And if the SG recommended deny, the court might grant anyway, especially if the SG thought the decision was wrong.

    If the court’s simply done with 101 and thinks it’s up to Congress (or the PTO or the Federal Circuit) to fix whatever needs fixing, then why bother asking the SG to file briefs in American Axle, Interactive Wearables, and Tropp?

    The Teva-GSK case is a little less surprising, as that one seems unique. Maybe a majority of the Supreme Court either thought the Federal Circuit was right, or thought the facts are too messy for further review to add anything useful. Still surprising, though…. at least to me.

    1. 12.1

      OT (in many parts), but the part that is at least tangent to your point on the circumference of the circle of the Supreme Court is the “corruption” 9-0 Reversal related to Cuomo related Grift:

      link to open.spotify.com

      Bonus parts: the grift of DEI discussed as well as a bare minimum takeaway from the Durham report (hint: it’s the opposite of the Woke “there’s nothing to see here, these are not the droids that you are looking for”

  6. 11

    It’s said that laughter is the sound of surprise.

    MM is the only one who reliably brings the lulz around here. I’ve never detected a change in mood suggestive of bipolar; they always seem irascible. I was so happy to them back on these threads. Considering the obvious pervasive personality disorder of ahem & the generally identifiable pathologies of MAGA types in general, MM/Prophet is probably one of the more adjusted people here, independent of the merits of their arguments, which are consistent.

    Anyone who doesn’t understand that the eligibility problem is a policy choice that turns on the relationship between useful logic and the patent act cannot be taken seriously.

    MM, at least, can be taken seriously.

      1. 11.1.2

        Martin is someone that was accusing people of sexually abusing children with zero evidence as a way to silence them. MM (Prophet) was also accusing people of sexually abusing children to silence them and of being prostitutes in porn movies. In fact, both of them seem to have the intent to defame people to silence them.

        Let’s get some perspective.

        1. 11.1.2.1

          Martin is someone that was accusing people of sexually abusing children

          W the ever-lovin F are you talking about? I’m on here with my real name and I’m not defaming anyone.

          Unless you come with some proof of the above, YOU are the defamer, and I expect your retraction. Put up or s hut up- or demonstrate your own low character.

          I assume the good sense of Prof Crouch will cause this garba ge to disappear soon enough.

          1. 11.1.2.2.1

            Says the pot to the kettle….

            (With no hint of understanding the irony whatsoever)

    1. 11.2

      I hear you, but he drags people in the gutter with many of his comments, and that is not acceptable, Martin Snyder.

    2. 11.3

      at least, can be taken seriously.
      Perhaps, but not when it comes to patent law. Serious people don’t need to resort to incessant insults and demonizing of the very profession they profess to be part of. That is why they have been placed on ignore for years now. I’ve recently placed anonther one on ignore for essentially the same reasons — too much noise and not enough signal.

      is the only one who reliably brings the lulz around here
      So what is it? Are you looking for comedy or for serious debate? Very few people can pull off both and if they were so capable, they would be hosting the The Daily Show. And if you are looking for comedy, there are far better places to find it.

      the eligibility problem is a policy choice
      That is true, but it is up to Congress to made policy decisions — not unelected judges — most of whom have little experience in the fields that are being impacted by their policy decisions.

      1. 11.3.1

        “Are you looking for comedy or for serious debate? Very few people can pull off both and if they were so capable, they would be hosting the The Daily Show. And if you are looking for comedy, there are far better places to find it.

        That also goes for “serious debate”.

        1. 11.3.1.1

          Where are the far better places for serious debate? Inquiring minds want to know.

          1. 11.3.1.1.1

            Such places live and die based on the composition and quality of the participants. If you knew of one, would you really share a link to it here?

            1. 11.3.1.1.1.1

              If you knew of one, would you really [be] here?
              Fixed it for you.

      2. 11.3.2

        “So what is it? Are you looking for comedy or for serious debate?”

        Cuz the people who scream at the top of their lungs that anybody who thinks a patent might be invalid or ineligible is a NEO-MARXIST are engaged in serious debate.

        Lulz

        1. 11.3.2.1

          Your impression of Malcolm keeps on getting closer.

          As he is the Trump of the Left, your comment mirrors that which you would disdain.

          I am quite certain that the irony escapes you.

            1. 11.3.2.1.1.1

              And there you go again, employing Malcolm’s
              A
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              Instant classic.

    3. 11.4

      MM is the only one who reliably brings the lulz around here.

      I cannot say that I go in for the insult comic schtick, but de gustibus non est disputandum, as the Angelic Doctor would say. 5.1.1.2.1.2 is evidence that you are not alone in enjoying that particular brand of humor, but I confess that it is lost on me.

      MM, at least, can be taken seriously.

      Sometimes. If I were to make a list of regular participants and arrange it in order of whether someone could be taken seriously or not, you would be much higher up in that list than would be MM (although he would not be the last on the list). To be fair, if I compare his work before and after his long hiatus, there is a discernible improvement in the quality:dross ratio.

      1. 11.4.1

        “k” in work…

        If the National won’t take care of the border, why not let the State take care of its portion?

      2. 11.4.2

        I think the anti-patent judicial activists (generally the Lemley types) are far nastier than the regular patent crowd. The anti-patent judicial activists tend to be crude and like to defame people to the point where several of the people on this blog could be sued for defamation–with an easy win.

        I would not want to be friends with most of the anti-patent judicial activists because I think they are people of poor character who sacrifice moral decency for an end goal. I think Lemley has committed repeated academic violations (to get to that goal of the Marxist ideal where there are no IP rights but those for the elite.)

        And I don’t trust the anti-patent judicial activists in that they will omit references or intentionally misrepresent facts.

        That–my friends–is reality.

        1. 11.4.2.1

          I am actually repulsed by the poor character of most of the anti-patent judicial activists.

          It is the zeitgeist where people who think they are on some Marxist mission feel they can abuse the truth and law. (And people).

          1. 11.4.2.1.1

            I also note that people like B are civil on other blogs and here on patentlyo the anti-patent judicial activists are attacking him and being most uncivil.

            Dennis really should restrict this type of behavior.

            1. 11.4.2.1.1.1

              Civility is over-rated.

              Grow a pair.

              The FAR worse thing is the amount of drive-by commenting and refusal to address or incorporate counterpoints presented.

              1. 11.4.2.1.1.1.1

                The problem with the “civility card” as played by wingnerts and f a sc ists and ra ci sts (and s c u m bags in general) is that they use it to shut down people who correctly identify them for what they are and what they are doing. In other words, they hide behind a veneer of “civility” while behaving oppositely.

                Hence the rich comedy of Wiper (and others) complaining about that they are being treated oh so poorly. And notice how Wiper’s little buddy B i l l y never points out that Wiper is projecting. Nope.

                1. [N]otice how [NW]’s little buddy [anon] never points out that [NW] is projecting. Nope.

                  Is anon still NW’s “buddy”? Scan through the recent threads and pay attention to how often NW responds to anon. Not often.

                  Many people lately appear to be deliberately ignoring anon (Greg, Ben, Wt, etc.). I wonder if NW has not joined this list.

                2. LOL – both of you are clearly off.

                  I need not note Night Writer’s every foible and I have disagreed with him on more than one substantive matter.

                  SJM – you in particular, have zero room to chime in – on pretty much anything. Do you think YOU have any buddies, given how every single person YOU mention has NEVER responded to ANYTHING that you have written?

                  “1gn0ring me” is always a choice.

                  Of course, more often than not, it is a choice that leaves my (almost always correct) statements uncontested.

                  Given that those who have chosen to contest my statements (like Malcolm) end up running away and not having anything cogent to say, that leaves my record in pretty DAMM fine shape.

  7. 10

    MM would be an interesting psychological study; definitely hates his job, and probably hates himself.

    1. 10.1

      I think he’s Bipolar II. Not sure what medication they prescribe for that. Whatever dosage he was on during his absence seemed to work well.

    2. 10.2

      Without (necessarily) playing the “you are mentally ill” game — to a certain extent not separable when it comes to Malcolm — the quite evident cognitive dissonance in Malcolm’s writings is a prime clue in my ability to so quickly “out” not only his return to the comments here at Patently-O after his more than a year absence, but also to out his spate of s0ck puppetry at PatentDocs (after his whining that multiple pseudonyms was the “worst thing ever” on this blog).

      The level of his hypocrisy is only exceeded by his level of narcissism.

  8. 9

    I didn’t realize until just now that this “B” character is basically the poster child for patent-huffing lunacy. Comedy gold! Was he a contortionist before he became an attorney or did that skill come later?

    1. 9.1

      Coming from you, McDerp, I consider that a 5-Star Michelin Review.

      I doubt you’ve ever once responded to an Alice/Mayo rejection, or know anything about such things first-hand . . .

      . . . yet you think you’re an expert.

      1. 9.1.1

        +1

        B: “The Prophet” is a redux of MM. He will do all that he can to defame you. And he will spend an infinite amount of time writing comments. He claims he has a Ph.D. from Berkeley in bio/chem. I suspect he is paid to blog.

        1. 9.1.1.1

          Most of the people on here that are not anti-patent activists have decided to completely ignore him.

          1. 9.1.1.1.1

            … or, as I have pointed out, to toy with him and drive him into the comical extremes that highlight the reduction to inanity that his path inexorably leads to.

            I like to think that this reflects a true appreciation of the US First Amendment: I will fight for your right to say things that not only I may not agree with, but that I may find repugnant.

            The Far Left (including Malcolm) does NOT have this appreciation.

            1. 9.1.1.1.1.1

              Yo Gramps I have never advocated or suggested that the government should shut your disgusting imbecile mouth.

              What you seek — and this is obvious to everyone here —is freedom from being criticized for mouthing your sick vapid bogus scripts. That has nothing to do with the First Amendment and everything to do with you being nothing more than an entitled gross old man with a big sick empty mouth.

              1. 9.1.1.1.1.1.1

                Wrong as can be , Malcolm.

                I am the one chasing others to actually respond to my counterpoints. I have never sought this “freedom from being criticized” in ANY way, shape or form.

                You on the other hand HAVE badly mangled First Amendment law principles on numerous occasions, and have shown an abject lack of appreciation for what the First Amendment entails.

                In other words, yet more of your typical projections.

            2. 9.1.1.1.1.2

              “True Appreciation for the First Amendment”

              To restate the obvious again: you have no “right” to be free from harsh caustic relentless criticism and you have no “right” to be heard at my dinner table or any other place that is not owned/controlled by the government (including here).

              Any “true” (LOL) “appreciation” of the First Amendment acknowledges this fundamental aspect of the law. And it’s most certainly not “the left” that has the hardest time with this. Only a mental defect would not notice who is busiest right now passing laws restricting speech for totally capricious reasons. And only a total awhole would notice it and not admit it.

              1. 9.1.1.1.1.2.1

                To restate…

                You are babbling.

                And it IS certainly the Far Left that has the hardest time with the First Amendment. To assert otherwise is pure balderdash.

                Maybe you want to get your facts correct about any anti-grooming efforts to protect children before labeling them as some type of “restricting speech for totally capricious reasons” as well as properly keeping the Religion of Woke out of government speech.

                You are at least aware that Woke is a religion, eh?

                1. Who told you that, Billy?

                  So you are getting this from Anon? How odd! I thought that Anon—following James Lindsey—held that “woke” is an outgrowth of the Frankfurt School, and nobody describes the Frankfurt School as a “religious” movement. In any event, if Anon thinks that “Woke is a religion” as you quote, that would be the rare example of Anon being correct about something that is not a merely trivial truth. Maybe he is improving?

                2. Not sure what the point is in the hidden link of “u”….

                  That being said, Woke as a religion is informed by — but not limited to — Dr. Lindsay, as is easily traced back to the people that coined the term, and their “philosophical” Beliefs.

                  Are you seriously telling me Malcolm that you do not even know what religion you are?

                3. And Greg “Dozens” ‘not being able to read my posts’ is pretty funny as he has asserted to have blocked Malcolm (aka The Prophet).

  9. 8

    It’s time to point out an important fact and offer a friendly reminder.

    The fact is that eligibility jurisprudence is at LEAST as “predictable” as 103 or 112 jurisprudence. The whining about “unpredictability” is completely off base and what the complainers really are complaining about is that they don’t like the law and they want to see fewer claims tanked as ineligible.

    Here’s the friendly reminder: the complainers have had well over a decade to come up with a reasonable rewrite of 101 and they have failed miserably at that task. Instead of a reasonable rewrite, they’ve offered only ridiculous, unworkable and indefensible alternatives that seem to have been written by a tantrum-throwing three year old. The major failure, as has been pointed out endlessly, is these vapid proposals do not take into account the fact that the current paradigm for claim drafting is incredibly loose such that drafters can write claims that comprise 5,000 pages of prior art with one “inventive” word hidden in the middle.

    I and others here (and elsewhere) have spent a lot of time thinking carefully about and explaining the various “flavors” of ineligibility and highlighting the issues/problems that inevitably arise when the fundamental restrictions are ignored.

    Let’s take just this one example: someone invents a new device for detecting meteorites in space. Wonderful! They apply for a patent on the device. On the day the application publishes, I build the device myself and use it to detect 42,376 meteorites that were previously unknown to science. Should I be able to obtain a patent on 42,376 methods of using the device to detect each of these meteorites?

    The answer, of course, is “no” but it’s not because the claims are invalid under 103 or 112 (unless you wish to make up a new “test” under those statutes). Can anyone here explain why the answer is “no”? Should be easy by now but let’s see what happens.

    This is just one straightforward eligibility issue, by the way. There are others. None of them are especially complicated or “unpredictable”. What confounds some people is that they simply want certain claims to be eligible but they can’t (or won’t) articulate a coherent principle that lets their “important” claims through the gate but keeps the total trainwreck claims out.

    1. 8.1

      And of course, you have omitted the whole Gordian Knot of conflicting cases from the CAFC, as well as comments directly to that Gordian Knot from leaders of all three branches.

      Much like your political tendencies, your “facts” simply aren’t.

    2. 8.3

      “Current eligibility jurisprudence, when applied correctly, is effective for screening out logic claims where the only distinction between the claims and the prior art is the “meaning” or “content” of the data being input, processed, stored or output.”

      This may be the most inane and ignorant thing I’ve read all month

      1. 8.3.1

        1. A method comprising identifying available real estate parcels in an area, sorting said real estate parcels by price, and highlighting real estate parcels where the owner is named after their grandmother’s pet starfish.

        This is novel and non-obvious and enabled. It’s also ineligible (and predictably so). Your comment is the inane and ignorant comment (also predictable).

    3. 8.4

      [E]ligibility jurisprudence is at LEAST as “predictable” as 103 or 112 jurisprudence. The whining about “unpredictability” is completely off base and what the complainers really are complaining about is that they don’t like the law and they want to see fewer claims tanked as ineligible.

      I do not agree with much in #8 above, but this is actually more correct than most of MM’s dross. Eligibility used (in the immediate aftermath of Alice) to be the most confusing aspect of patent law, but it is in the nature of a common law system to become more clear and predictable as precedents accumulate.

      There have been many precedential decisions since Alice. Some of them are not easily reconcilable with others, but that is true in every aspect of the law (not just patent law). By this point, one can predict the outcome of any given eligibility dispute with about as much accuracy as could be achieved in any given claim construction dispute, or any given obviousness dispute. It really is not accurate any longer to complain that eligibility law is “unclear” or “unpredictable.”

      I still complain about eligibility law, but my beef is not that I cannot give my clients useful advice in view of the law’s uncertainty. Rather, my beef is that I have to look at genius inventions and tell the inventors “sorry, this is brilliant, but not patentable.”

      I think that this should be changed. I do not like the current state of eligibility law. Still, I have to agree with #8 that the common complaint about eligibility—that it is unclear or too unpredictable—is not really accurate. If anything, it is too ruthlessly predictable, but in a socially deleterious direction.

      1. 8.4.1

        “I still complain about eligibility law, but my beef is not that I cannot give my clients useful advice in view of the law’s uncertainty. Rather, my beef is that I have to look at genius inventions and tell the inventors ‘sorry, this is brilliant, but not patentable.’”

        and said clients will ask “why?”

        Because it involves a law of physics or math or both or neither.

        You name a CAFC holding for patent eligibility – I can name two that say the opposite.

        1. 8.4.1.1

          “I am not intelligent enough to understand the law therefore it’s unconstitutional!”

          He’s a very serious person, folks, and totally not a diaper-wetting crank and an embarrassment to the profession.

      2. 8.4.2

        It would be helpful if you could provide an example of a “genius invention” that is ineligible but which you think should be eligible. And even better would be the articulation of a test to distinguish this “genius invention” from merely non-obvious “inventions” that are indistinguishable from the prior art but for the recitation of some new contextual information or an allegedly novel abstraction (e.g., a new “meaning” for data produced by an old method).

        1. 8.4.2.1

          Anyone tempted to respond to this invitation might want to pause first and consider 37 C.F.R. § 11.106.

        2. 8.4.2.2

          Parker v. Flook

          The formula is an apparent re-invention of the steepest descent algorithm a decade before Prof. Bernard Widrow’s groundbreaking book “Adaptive Signal Processing.”

      3. 8.4.3

        Some of them are not easily reconcilable with others,

        Try again.

        Think: impossible.

    4. 8.5

      > The fact is that eligibility jurisprudence is at LEAST as
      > “predictable” as 103 or 112 jurisprudence.

      Obviously you’re going to get hostile responses, and as usual, the edgelords have drowned out any kind of nuance.

      From the dispute and litigation standpoint, 101 issues ARE frequently more predictable than claim construction, written description, 103, and other issues that come up. A lot people have made this observation, and this is especially true in areas that have been heavily litigated like computer or software-based inventions that have generated an extensive 101 jurisprudence. There are exceptions and outliers, of course, but in so many of those CAFC cases that deal with 101 issues, you can look at the claim for about 30 seconds and make a fairly accurate call of how it will fare under 101. Far more accurate than other issues like claim construction, written description, 103, etc.

      But a lot of the predictability you’re seeing likely comes from the fact that, in the litigation context where most of the CAFC 101 jurisprudence comes from, they were often addressing older patents that were prosecuted during the Bilski era in which fairly nominal recitations of something non-abstract in the claims would avoid 101 problems. You’ll likely find less predictability in cases addressing patents that were prosecuted years after Alice, as these are less likely to be the “low hanging fruit” patents that fall easily on 101.

      But the unpredictability is greatest on the prosecution side, because many patent examiners just do not understand the law of 101. This isn’t surprising given that most examiners aren’t lawyers, whereas 101 often tends to be far more of a legal than technical issue when compared to 102, 103, etc. Office Actions on 101 issues will quote the Alice language but it’s often clear from the analysis that many these examiners don’t have the first clue what the words really mean or how the standard should be applied, which leads to unpredictability, such as bizarre 101 rejections for clearly eligible claims, while other claims with significant 101 problems breeze by without a rejection. This lack of confidence in the ability of examiners to evaluate 101 issues correctly is also why so many courts give almost zero deference to whether the claims overcame a 101 rejection during prosecution.

      1. 8.5.1

        “This lack of confidence in the ability of examiners to evaluate 101 issues correctly is also why so many courts give almost zero deference to whether the claims overcame a 101 rejection during prosecution.”

        Seems to me it is more likely that this happens because the PTO made up an additional analysis step (Prong Two) that the courts don’t recognize.

        1. 8.5.1.1

          Most of the problems actually come from Prong One of the analysis, because a lot of examiners simply have no clue how to apply it. This is not surprising, again, because Prong One is a legal question.

          Examiners seem to have less problems understanding Prong Two, presumably because determining if the claims recite something that is not “routine and conventional” is more of a technical question similar to the type of 102/103 analysis they do every day.

          1. 8.5.1.1.1

            People have already forgotten WHY the Office 2019 change was put in place?

            Iancu recognized the Gordian Knot of case law being so messy that mere examiners had no chance.

          2. 8.5.1.1.2

            “Most of the problems actually come from Prong One of the analysis, because a lot of examiners simply have no clue how to apply it. This is not surprising, again, because Prong One is a legal question.”

            Total b.s.

            Whether a something is well known, routine, and conventional is a question of fact UNLESS you’re a brain dead CAFC judge Too stupid to actually read S.Ct. Opinions.

          3. 8.5.1.1.3

            “ Examiners seem to have less problems understanding Prong Two, presumably because determining if the claims recite something that is not “routine and conventional” is more of a technical question similar to the type of 102/103 analysis they do every day.”

            Have you ever even talked to an examiner? They have no clue what an “ inventive concept” is, and the CAFC gives examiners license to ignore any limitation before them.

            PS: the CAFC has no idea what an “inventive concept” is either.

      2. 8.5.2

        Good points. The problem for Examiners (and the PTO) is that they are stuck with the CAFC’s case law which, particularly in the computer arts, includes some cases that seem to contradict other cases or which reach different results for reasons that are opaque. On top of that, there is the CAFC’s made-up nonsense about “non-conventionality” which further muddies the waters. The best course of action would be for the PTO to resolve the incongruities as best it can, even if it means ignoring some of the CAFC’s misfires (and favoring other cases). If a party objects to a position taken by the PTO, then it can be litigated and the CAFC can (hopefully) address and correct the inconsistency.

        1. 8.5.2.1

          Your (lack of) love for the Rule of Law is duly noted.

          You even note the Gordian Knot (albeit a bit obliquely), but then stumble into a “don’t care as long as my side is chosen.”

      3. 8.5.3

        “From the dispute and litigation standpoint, 101 issues ARE frequently more predictable than claim construction, written description, 103, and other issues that come up”

        Really?

        Tell me why Enfish v. Microsoft is patent eligible but In re Villena is not?

        1. 8.5.3.1

          Enfish: recites software components and how they interact to enable claimed outcomes.

          Villena: recites outcomes, without software components or how they interact.
          There were opportunities to claim software components and interaction, but the patent practitioners involved never took them and instead resorted to the standard handwaving that results in predictable ineligibility for these older (and many recent) patents: “produce a plurality of AVM values using residential property information … the AVM values reflecting current market estimates for the residential properties”
          Had the patent practitioners stepped deeper into this outcome and claimed *how* the AVM values were arrived at (i.e., the software components and their interaction), this could likely have brought this case out of being considered abstract.

          Predictable.

  10. 7

    Dear Prof Crouch

    Killian will appear

    The printer miscut the hard copy briefs, and is now re-printing at his own expense. I’ll file the corrected petition next week.

    I’ll send you an electronic copy if you wish

      1. 7.1.2

        The CAFC Killian opinion has one great factual advantage over all other cases

        One needs to be bat guano crazy to believe Chen’s nonsense.

  11. 6

    101 law will never make sense until two propositions are settled:

    1) that the actual invention–what the inventor claims to have invented in the spec/pros history–must be identified before deciding if it is an abstract idea/natural phenomenon vs. a product/process;

    2) under what circumstances is programming a computer a “process” and not an abstract idea. Much of the current confusion stems from the fact that a categorical test is being applied to the exact same activity and yielding variable results. Sometimes the only new contribution is just a specific type of information (an email function that reminds me I have a meeting in 15 minutes), but some programs substantially improve performance of the computer’s physical structure. The latter type of programming invention thus seems like it’s a patent-eligible process: “[A] mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.” Diehr.

    1. 6.1

      Refreshing to read a comment from someone who not only has thought about at least some eligibility issues but can write sensibly about them! Well done, Kyle.

      Current eligibility jurisprudence, when applied correctly, is effective for screening out logic claims where the only distinction between the claims and the prior art is the “meaning” or “content” of the data being input, processed, stored or output.

      The logic inventions you refer to, where there is some alleged resulting improvement in computing speed or “power”, raise different issues. The major, long-recognized malfunction in the patent system has been the complete lack of any systematic way to examine logic claims. There are no meaningful formal rules on what terms are to be used when applying logic to data and so, given the abstract nature of logic, comparing a bespoke claim to the prior art is like playing whack-a-mole with a blindfold on. Compare this situation with the robust and elaborate (and reasonable!) rules applicants must adhere to when claiming DNA and protein sequences. Those rules benefit both the patent office(s) and applicants. For starters, they permit the creation of a useful database of art.

  12. 5

    The District Court found- expressly- that CareDx Inc. v. Natera, Inc. was a virtual recapitulation 0f Ariosa v Sequenom.

    Ariosa v Sequenom and similar cases are policy choices.

    The CAFC opinion in CareDx lays out the policy: “We have repeatedly held that applying standard techniques in a standard way to observe natural phenomena does not provide an inventive concept

    Either scientific discoveries are patent eligible, or they aren’t. There are reasonable policy elements supporting both positions, which is why politics are sometimes difficult and why the absence of a binding political choice begets chaotic legal outcomes.

    I approach it from a whole other angle.

    A scientific discovery is a species of new and useful information. The Patent Act is silent about the patenting of new an useful information.

    A policy choice about new and useful information has not been made, and so we see chaotic legal outcomes.

      1. 5.1.1

        Ariosa v Sequenom claims knowledge that fetal DNA can be detected in cell-free DNA fragments found in maternal plasma.

        Once a PHOSITA has that item of information, all that follows is obvious.

        The novelty and utility of the invention is entirely that item of information.

        1. 5.1.1.1

          Check again.

          And note the specificity of “ claim information” ONLY (reminder: claims as a whole)

          That’s a rather important patent law context (terrain).

        2. 5.1.1.2

          Yeah – let’s dissect a claim into new stuff and old stuff and address these things separately while conflating 101 and 103

          1. 5.1.1.2.1

            Shorter B: “Let’s all pretend we were born yesterday because that evens the playing field for ridiculous jackholes like me.”

            1. 5.1.1.2.1.1

              B’s point is eminently valid.

              So Malcolm reacts as he usually does, spewing the
              A
              O
              O
              T
              W
              M
              D

              ¯\_(ツ)_/¯

              1. 5.1.1.2.1.2.1

                I am confused by the ostensible vehemence of your endorsement of Malcolm’s 5.1.1.2.1. Do you mean to voice an agreement with Malcolm’s substantive views about the present state of eligibility law? Or are you just agreeing that Killian’s petition is quixotic?

                1. Smelly Breeze aligned with P00py Diaper…

                  Is anyone surprised?

                  (the company you keep and all)

        3. 5.1.1.3

          I do wonder if the AI art program the good Prof. ran decided “traffic lights” in your honor, marty….

      1. 5.2.2

        Information is none of those things. It’s an abstraction that is ineligible for patenting. If nothing else, a patent claim that purports to give someone ownership of PUBLISHED information (making a recipient or sender of the information guilty of “infringement”) is plainly unconstitutional under the First Amendment.

        1. 5.2.2.1

          “Plainly”?!? [Rolls eyes]

          Are the copyright statutes also “plainly” violations of the First Amendment? They also impose a limitation on what you can say inside the U.S. jurisdiction.

          1. 5.2.2.1.3

            Copyright protects expression, not information. There is also a fair use exception.

            Any law that would make someone strictly liable for patent infringement merely because they repeated a published fact (or non-fact) is, as I noted, plainly unconstitutional under the First Amendment. Either that or the First Amendment is meaningless. Take your pick.

            Recall that the plaintiffs in Mayo wanted to go even further. According to them, a doctor need only look at data obtained using an old method and THINK about the meaning of that data (i.e., the allegedly non-obvious correlation published by the plaintiff in their patent application) and the doctor would be liable for infringing their claim. Totally gonzo. The so-called judicial exceptions were not created on a whim.

            1. 5.2.2.1.3.1

              Copyright protects expression, not information. There is also a fair use exception.

              Right, which is as much as to say that there are differences between patent and copyright. But are they material differences in the context of First Amendment law?

              The First Amendment says that “Congress shall make no law… abridging the freedom of speech, or of the press…,” and then Congress goes and makes a law that limits what you are allowed to say and to print. It is fine for you to point out that this law has exceptions built in, but those exceptions do not change the plain fact that copyright only works if it serves—at some level—as a limitation on that which you may say and print—i.e., as an abridgment of freedoms of speech and press.

              So, is that an insoluble paradox, or a proof that the copyright statute has been unconstitutional all along? Not really. It just serves as an illustration of how one can misinterpret constitutional provisions when one loses sight of the common law context in which the Constitution was fashioned.

              The First Amendment provides a broad set of general principles. Art. I, §8, cl. 8 provides a more specific set of rules. The common law rule has long been that specific provisions serve as narrow exceptions when they conflict with broader, general principles. Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 229 (1957).

              Once one admits, however, that copyright can sometimes exist as a narrow exception to the First Amendment, there is no principled reason to assert that patents cannot also exist sometimes as narrow exceptions to the First Amendment. This is very much a debatable point. There is nothing “plain” at all about your assertion of a First Amendment problem here.

              1. 5.2.2.1.3.1.1

                Please Pardon Potential rePeat due to count filter….

                The “5” sees comedy in “plain view” while ALSO absolutely missing the Constitutional context.

                A classic “Motte and Bailey” approach of “we only want safety,” while totally ignoring human nature (and the fact that many of those “mass events” are already violating laws on the books.

                But hey, what harm could come from a completely defenseless society?

                In other news, the herd of sheep, having witnessed a wolf with sharp teeth having eaten one of their own, have decided for their safety to remove all of their own teeth.

              2. 5.2.2.1.3.1.2

                “there is no principled reason to assert that patents cannot also exist sometimes as narrow exceptions to the First Amendment.”

                I’m talking about a US utility patent as it is currently defined. What are you talking about?

                Please tell everyone what you are talking about and then I will be happy to let you know if there is a plain and “principled reason” for objecting under the First Amendment.

                Go ahead. What kind of information should be turned into strict liability by virtue of a US utility patent, such that the communication of the information would turn any speaker into an infringer?

                1. You forgot “claim as a whole.”

                  Again.

                  How much lipstick are you going to put on that strawman of yours?

            2. 5.2.2.1.3.2

              This is a very good point. Ultimately it might come down to whether the invention, i.e. the novel components of a claim, represents a physical change–new sequence of steps performed by a person, or a product physically different from that which came before. That’s too clean for a court to ever bless, unfortunately, but that seems to be the subtext of 101. If your claim focuses weirdly on a certain genre of information, that usually is a red flag to judges.

              1. 5.2.2.1.3.2.1

                You are commenting to Malcolm’s (ages old) strawman in which he does NOT take a claim as a whole, Kyle.

              2. 5.2.2.1.3.2.2

                “ If your claim focuses weirdly on a certain genre of information, that usually is a red flag to judges.”

                Absolutely this. And when defenders of such claims pretend that the claim is some sort of “computing improvement”, the immediate question should ALWAYS be: then why is the claim limited to data with specified meaning/content?

                Computers don’t care what the data “means”. Data is data.

                1. Data is data.

                  Clearly you know nothing of technology.

                  THIS is not a new comment from you, and it’s been probably a decade or more ago that the rejoinder of “let me reformat your hard drive with your notion of “data is data” was met with your typical running away, Malcolm.

                2. “ Clearly you know nothing of technology.”

                  LOL

                  Tell everyone what kind of data content an instructable computer is not able to process or is unwilling to process even after it is instructed to do so.

                  Go ahead! You are a very serious person and you surely know the answer. Tell everyone.

                3. Don’t move the goalposts Malcolm (your “Tell everyone” is NOT the same thing as you stated above, and NO ONE has claimed a lack of “able to process”).

                  Answer first the question put to you well over a decade now in regards to “data is data:”

                  Would you let me reformat your hard drive in view of your own statement?

    1. 5.3

      > The Patent Act is silent about the patenting of new an useful information.

      It comes pretty darn close though: “(a) The term “invention” means invention or discovery.” What’s a “discovery” if not “useful information”?

      1. 5.3.1

        The patent act permits you to “own” a non-abstract process or thing that you discover. The patent act does not permit you to own information descriptive of that non-abstract process or thing. On the contrary, that information must be given up to the public to obtain the patent.

        1. 5.3.1.1

          Sure, but the question is whether merely noticing some existing “non-abstract…thing” (i.e., “discovering” it) is enough. Or does human agency need to be involved?

          Textually, of course. SCOTUS has long held it’s the latter e.g., “anything under the sun that is made by man.”

          1. 5.3.1.1.1

            I think SCOTUS got it right although even their language can be objected to for vagueness when taken out of context (e.g., what do they mean when they say “anything”?).

            It’s also a recurring issue that claims can be drafted in ways that make them appear to be covering a process or thing “made by man” but in fact they are tying up pre-existing tools that were designed to detect and discover unpatentable natural phenomena. That’s a way of claiming ownership of a natural phenomena (like a meteorite) and courts have correctly stepped up to curtail the practice.

            This is not say that even specific (i.e., narrow) claims involving a limited specialized use of a tool are ineligible (or should be). Tools and detection methods can certainly be improved upon but claims that do no more than recite “look at this specific thing with the tool that was created to look at things” are highly problematic for the reasons noted above.

  13. 3

    The court also denied certiorari in the skinny-label FDA-Patent case of Teva Pharmaceuticals USA, Inc. v. GlaxoSmithKline LLC.

    Good. This was a quirky case with an odd set of facts. It would not have made a useful precedent, and the alleged death of skinny label approvals has not followed as predicted.

  14. 2

    In spite of robust amicus backing, including from the US Solicitor General, the Supreme Court has declined to review two pending patent-eligibility petitions: Interactive Wearables v. Polar and Tropp v. Travel Sentry. These cases contended that the Alice/Mayo framework produced (1) instability and unpredictability in the law; (2) facilitated non-evidence based judgments by district courts; and (3) prohibited patenting of subject matter that has traditionally been eligible for patents.

    Save this text. You will be able to swap out the party names and re-use it sooner or later.

    1. 2.1

      Not that these two cases involved good fact patterns, but who seriously thinks that SCOTUS has any appetite to take up another 101 cases in the near future?

      Alice v. CLS Bank is almost 9 years old. Better luck might be had trying to get an en banc decision out of the CAFC clarifying 101 law or something out of Congress.

      1. 2.1.1

        Definitely. I am very pessimistic that the SCOTUS will solve the §101 problems that it has made. On the other hand, the fact that Sen. Tillis and Sen. Coons keep introducing new §101 legislation makes me optimistic. If they keep trying (and readjusting in view of popular feedback), one of these times they are going to achieve an improvement relative to the status quo.

        1. 2.1.1.1

          readjust ing in view of popular feedback

          Lol – translation: “invite the Trojan Horse within the city gates.”

          We do not need “popular feedback” that is only interested in fitting the patent system (think Efficient Infringers).

          1. 2.1.1.1.2

            +1 again

            Personally, I think Tillis’ approach went from good to a total disaster based on “popular feedback.”

        2. 2.1.1.2

          There is no “legislative fix” to 101. If they rewrote it to be 10,000 words Clarence would just say “I know ineligible subject matter when I see it.” And if they simply abolished 101 Clarence would say “There are well known judicial exceptions to patent eligible subject matter.” And none of the “precedents” on 101 are going to ever be overruled because we all know how much stare decisis means to “conservative, definitely against legislating from the bench” Supreme Court justices.

          1. 2.1.1.2.1

            This is a very fair point. In order for there to be a real and enduring legislative fix to the §101 problem, Congress will also want to amend the judiciary act to take the CAFC out of the Supreme Court’s certiorari jurisdiction.

            1. 2.1.1.2.1.1

              Greg cannot escape his OMB-TDS fixation with the hidden link (“j”) that (oh so predictably) reacts in view of the Durham report — while entirely missing the point of weaponized Deep State apparaticks.

              1. 2.1.1.2.1.1.1

                There’s nothing more predictable than this cl0wn commenting that somebody “entirely missed the point” when the “point” (whatever this cl0wn thinks is the “point”) is not even at issue.

                The Durham report is a joke, as Josh Marshall correctly notes. The “point” notwithstanding. And in this case the “point” being the fever dream of the MAGAt brain zombies.

                1. “a joke” — gee, that’s not colored at all by our own political leanings, now is it?

                  That you lump me in the “one-bucket” like Malcolm does is not a positive trait for you.

                  But you be you, and continue Sprinting Left.

                2. By all means feel free to enlighten me on what all “bombshell” and “totally devastating” revelations are contained in the Durham report.

                  Which you won’t.

                  Predictable AF you are.

                3. LOL – as are you – have you bothered to read the report?

                  In a nutshell: FBI should NOT have been as political as they were.

                  Is that too difficult for you to understand?

                4. Predictable AF you are.

                  Let me guess, Smelly, you still haven’t bothered reading the report and won’t bother to (because it does not fit the narrative).

                  Here’s a friend of Hilary to provide his view:

                  link to youtu.be

      2. 2.1.2

        One interesting wrinkle that I just noticed in the actual orders list (that I do not see mentioned in Prof. C’s write-up above): the denial of cert. for Interactive Wearables, Travel Sentry, and Teva. v. GSK all occur consecutively, in that order on pg. 6 of this morning’s orders list. These are all part of the long section entitled “Certiorari Denied” that begins on pg. 2 of the orders list.

        After Teva v. GSK (the last of the three patent cases), the orders list includes the additional statement that “Justice Kavanaugh would grant the petitions for writs of certiorari.” The interesting bit is that it says that Justice Kavanaugh would grant the “petitions” (emphasis added), which suggests to me that he wanted to take all three cases. Justice Kavanaugh was not on the Court when Alice was decided, which suggests that maybe he is open to a move away from the Alice status quo. That is still only one out of nine, but it is movement in the right direction.

        Meanwhile, for amusement, I urge everyone to glance at Wo of Ideafarm’s petition to Justice Thomas. Believe it or not, that was also denied this morning. ;)

            1. 2.1.2.1.1.1

              Please Pardon Potential rePeat…

              Your comment is awaiting moderation.

              May 16, 2023 at 8:07 am

              I would be immensely gratified if that were to be so.

              1. 2.1.2.1.1.2.1

                I wish I could be convinced otherwise, but I have to agree with the “Lolololol” here.

                1. “h” – Clarence Thomas….

                  Why hide this?

                  Oh wait, it is a hidden signal….

                  Hiding from whom — that might have an interesting answer.

                  Might.

    2. 2.2

      Mindless Noah on EV propaganda….

      o”u”t

      Wait until the full society costs are factored in before “celebrating” there.

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