Has Diehr been Overruled?; and How do you Prove Technological Advance

by Dennis Crouch

Ficep begins its petition for certiorari with a brilliant statement of how its patented steel manufacturing method has won numerous awards and complements for its innovative approach, been copied by competitors, and led to numerous successful sales. Despite these clear indicia of patentability, the Federal Circuit invalidated claims — affirming the lower court’s judgment on appeal.

That the invention was an important real-world manufacturing innovation was, as a factual matter, thoroughly established. The improvement was touted as enabling vastly more efficient and superior manufacture of components – not just by Petitioner’s experts, but also in the defendant’s advertising. There was industry recognition applauding the “innovation.” There was copying by competitors. There was successful litigation and licensing. And there was specific customer demand for the improvement to the manufacturing process. That is, every objective indicium of inventiveness that this Court has identified was present in the technological, traditionally patent-eligible, setting of manufacturing lines.

Ficep petition for certiorari.  But, in the Federal Circuit’s view, facts are confined to the obviousness analysis, and Ficep’s patent is invalid because it is directed to an abstract idea. Ficep Corp. v. Peddinghaus Corp., No. 2022-1590, 2023 WL 5346043 (Fed. Cir. Aug. 21, 2023).  The petition goes on to ask three questions:

  1. Does a claim directed to patent-eligible subject matter (here, manufacturing) nevertheless become ineligible as “abstract” if the process is improved using automation? (and should an “abstract-idea” behind a claim to a patent-eligible process be identified and, if so, how and at what level of abstraction?)
  2. What is the appropriate standard for determining whether a claim is “inventive,” conferring eligibility under Alice Step 2, including whether objective evidence of inventiveness and technological improvement is relevant?
  3. Is either what a claim is “directed to” and whether that is abstract, or whether a claim is “inventive” as articulated in Alice step 2, only for a judge to decide as a legal matter or does it include fact issues and, if the latter, are they for a jury?

SCT No. 23-796.  This case again highlights the need for clearer guidance from the Supreme Court on when a patent claim directed to an industrial process should be considered an abstract idea and therefore patent ineligible under 35 U.S.C. § 101.

For its part, the Federal Circuit applied the two-step test for patent eligibility established in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014). At step one, the court determines whether the patent is “directed to” a patent-ineligible concept like an abstract idea. If so, then at step two the court searches for an “inventive concept” beyond the ineligible concept.

Here, the Federal Circuit held Ficep’s patent claims to be directed to the abstract idea of “extracting and transferring information from a design file to a manufacturing machine.” The court characterized the focus of the claims as “automating a previously manual process” that a human operator used to perform. Further finding no inventive concept at step two, the Federal Circuit affirmed the district court’s ruling that the claims were patent ineligible under § 101.

In its cert petition, Ficep contends that the Federal Circuit misapplied Alice in a way that conflicts with precedent and casts doubt on patents for industrial innovations. Ficep argues that its claims are directed to an eligible manufacturing process under Diamond v. Diehr, 450 U.S. 175 (1981), which held that a rubber curing method did not become patent ineligible simply because one step used the Arrhenius equation to automate timing of when to open the presses. According to Ficep, the Federal Circuit improperly focused on one aspect of its claims—data extraction and transfer—rather than evaluating the claims as a whole, which require physical manufacture of components. Ficep also presented extensive evidence of its patented system’s superiority over prior manufacturing methods, which it contends demonstrates a technological advance under step two of Alice that the Federal Circuit wrongly dismissed.

Lets look at the claim at issue for just a moment. Claim 7 below claims an “apparatus for automatic manufacture of an object” and requires, among other things, “at least one manufacturing machine [that] manufactures the components” after receiving dimensions from a computing device.  Although the court agreed that the claim requires hardware, the court noted that the actual advance here is simply automating the previously manual process of transferring information from a CAD design model to a manufacturing machine.  The court found that, in a general sense, that automation process is an abstract idea.  And, that the patent claims offer no specific technological improvement that would transform the ineligible idea into a patent eligible.  But, the patentee here argues that the closest Supreme Court case on point is not Alice, but rather Diehr, which would favor eligibility.

7. An apparatus for automatic manufacture of an object, comprising:

a computing device adapted to create a design model of an object having multiple individual components, at least two of the individual components defining an intersection at which the two components are in contact with one another;

at least one programmable logic controller in communication with the computing device and with at least one manufacturing machine;

a receiver associated with the programmable logic controller for receiving the design model of the object;

a database unit adapted to store the design model received at the receiver;

a processor which is associated with the programmable logic controller and extracts from the design model a plurality of dimensions of components which define a plurality of components of the object;

wherein the processor identifies a plurality of intersection parameters which define the intersection of the two components;

wherein the processor extracts from the design model the intersection parameters;

a transmitter associated with the processor for transmitting the intersection and machining parameters and the component dimensions from the programmable logic controller to the at least one manufacturing machine; and

wherein the at least one manufacturing machine manufactures the components based at least in part on the transmitted component dimensions and on the transmitted intersection and manufacturing parameters.

In focusing on Diehr, the patentee here is raising a difficult issue that the the  Supreme Court’s landmark 1980 decision is effectively dead, even though it has not been rejected or repudiated by the Supreme Court. Rather, it was favorably cited in the Supreme Court’s recent trio of Bilksi, Mayo, and Alice.

Zombie Precedent: Ficep contends that its claims are analogous to the patent-eligible claims in Diamond v. Diehr for a rubber curing method that used the Arrhenius equation to calculate when to automatically open the presses. Ficep argues that like Diehr, its claims as a whole are directed to an eligible manufacturing process—namely manufacturing steel building components—even if one aspect involves automation based on extracting data like intersection parameters. But, the lower courts are not applying Diehr because they see that case as in conflict with the more recent trio. In its petition, Ficep asks the Supreme Court to make a statement on this issue — either confirm or overrule Diehr.

On the inventiveness issue that I started with in this post, the patentee here asks for guidance on Step-2 of Alice/Mayo and for a recognition that technological advance is a fact question for a jury to decide alongside parallel questions in obviousness and anticipation analysis.

= = =

The patentee-petitioner is represented by Matthew Lowrie and his team from Foley & Lardner.  Peddinghaus’s responsive brief is due Feb 23, 2024.  Their attorneys have not filed an appearance, but I expect they will still be represented by Nathaniel Love and his Sidley Austin team that includes Stephanie Koh and Leif Peterson.

161 thoughts on “Has Diehr been Overruled?; and How do you Prove Technological Advance

  1. 14

    Re unpatentable subject matter, in view of the number of funeral orations on the alleged Death of All Diagnostic Patents, I was surprised to see a law firm article citing examples of diagnostic patents that Have survived a §101 challenge:
    “Rapid Litig. Mgmt. v. CellzDirect, Inc., 827 F.3d 1042 (Fed. Cir. 2016) (new method); XY, LLC v. Trans Ova Genetics, LC, 968 F.3d 1323 (Fed. Cir. 2020) (improved technique); and Vanda Pharm. Inc. v. West-Ward Pharm., 887 F.3d 1117 (Fed. Cir. 2018) (dosage adjustment steps not routine or conventional)”

    1. 14.1

      Rapid Litigation Management, LLC?

      LOL

  2. 13

    Michael, think about what the real issues are with claim scope.

    1) The reason to protect against too broad claims is to encourage innovation within the claim scope. This is easily handled by holding that if a non-obvious invention reads within your claims, then your claims are invalid. The reverse doctrine of equivalents is relevant. And there are CAFC cases that hold this but have been ignored.

    2) The CAFC has been trying to remove the POSITA (or person skilled in the art) from claim analysis. This is why the CAFC has been trying to get away from scope of enablement because that necessarily includes POSITA.

    Claim scope is a very easy issue but the CAFC can’t deal with it directly because their goal is to limit patents as much as possible and not create a consistent body of holdings/opinions. Williamson should be enough to impeach the CAFC judges. Williamson rather than looking at how a person skilled in the art would interpret the claims, the judges decided they would privately decide this based on their desire to limit patents. This line of cases has been expanded and the main thrust is to provide another avenue where any claim can be invalidated based on a judge’s feelings.

    Anyway, I could easily write 50 pages about this issue with hundreds of references. And Morris’s claim said “any”. See that was the problem. It would include any non-obvious inventions within the claim scope. 

    Anyway, I have zero respect for the CAFC or the Supreme Court and fully expect them to continue to intentionally destroy patent law. Imagine being a judge on the CAFC and using your authority to try to limit patents rather than doing you sworn duty to try and apply the laws and try to make a consistent set of holdings so the patent system has predictability. Instead, what they have done is create a system of sovereigns. The judges look at the claim and then use 101, enablement, or another means to invalidate any claim that they don’t feel is valid. Stomach turning.

    1. 13.1

      I will take issue with your 1)

      Innovation is available “within” claim scope just as well as anywhere else, and breadth is simply not a legitimate reason to attempt to “foster” such innovation.

      ANY [sic] actual invention over the (supported) breadth would OF COURSE meet all of the requirements (novelty, non-obviousness, its own support).

      And yes, the “Feel” is one of those simian-in-a-cage-firehosed trainings that the CAFC has ‘learned well’ from the Supreme Court.

      1. 13.1.1

        anon, the innovation within the claim scope is the whole reason to be thinking about how broad claims are. Without this issue then enablement should be the only issue.

        1) The CAFC tries to remove the person of ordinary skill and all the embodiments that are enabled from Phillips.

        2) What should be done if an invention reads on the claims but is non-obvious over the invention of the claims.

        Keep these in mind.

        1. 13.1.1.1

          Your new “1)” (previously 2)) – I have no issues with.

          Your new “2)” – I am not understanding what you are trying to ask.

          You cannot be both non-obvious to a claim and be read onto that claim.

          1. 13.1.1.1.1

            2) Is easy to understand anon. Something can read on the claims but not be enabled by the specification + a POSITA.

            1. 13.1.1.1.1.1

              not enabled – not the same as non-obvious, now is it?

              Also – no. But perhaps I misunderstood your use of ‘claims,’ as I am reading use of that term for an item that has been granted.

              If you are instead using that term to mean mere words of a claim – and that claim is not valid, then – well – ANY type of reason for invalidity may sneak into the discussion.

              That cannot be the meaning you intended, could it?

              1. 13.1.1.1.1.1.1

                anon, no. They are not the same thing.

                Something could not be enabled from say a later arising technology but still be obvious.

                You really should figure this out. This used to be the driver for understanding enablement like 20 years ago before the anti-patent judicial activists started using enablement to cancel claims.

                1. Exceedingly unclear Night Writer.

                  May I suggest that you start over and do not use any non-exact terminology?

    2. 13.2

      The reason to protect against too broad claims is to encourage innovation within the claim scope

      That may be a desirable effect, but the real reason is to not take from the public that which belongs to the public.

      1. 13.2.1

        Martin, if it was already in the public domain, then the claims would be anticipated.

        1. 13.2.1.1

          marty is just grasping for sound bytes against patents.

        2. 13.2.1.2

          I may be missing something, but isn’t there is a universe of activity that is obvious, but not anticipated? Don’t those variations and improvements belong to the public and would be foreclosed by overly broad claims being allowed?

          1. 13.2.1.2.1

            Yes, Marty, but if all these things are so obvious, then why weren’t they invented before?

            You may laugh but this “argument” was routinely floated here for YEARS.

        3. 13.2.1.3

          then the claims would be anticipated.

          To my point at post 13.1.1.1.1.1 – I took your meaning that the claims at the point of discussion were allowed claims.

          I “got” your reply at 13.2.1 to indicate that the claims were in that state – and NOT just per marty’s stab with anticipation, but that the claims also did not suffer invalidity for other reasons.

          This wipes out the chatter from marty and Malcolm – perhaps you can continue your point from there.

    3. 13.3

      The underlying reason for shutting out over-broad claims is to keep free for the public all but the scope of protection which is proportionate to the magnitude of the contribution to the progress of useful arts which the inventor has made available to the public in the disclosure in support of the claim accused of being over-broad. Enforceable claims are, by definition, a restraint of free trade and such restraints should be confined to what is justified by promoting the progress, andnot allowed to sprawl wider than that. Categorize it, if you will, as an enablement issue but for me it is not quite the same.

      Further, as anon points out, being inventive within the scope of a proportionate claim is no defence to infringement, no reason to find the claim unenforceable or invalid. As the specialist English patent judges have it, being inventive does not excuse robbery.

      1. 13.3.1

        Good point, another reason to not enforce overbroad claims, besides two possible 112 violations and Alice, is their potential for excessive restraint of trade. That is, denial of customer access to alternative, possibly even better and cheaper, product or method solutions to the same customer problem or demand.
        BTW, one Can sometimes be inventive by discovering the importance of a narrow scope that is inside the range scope of someone else’s broad chemical range claims, and get a valid patent on it, if it meets 103 tests.

        1. 13.3.1.1

          Sometimes? Happens all the time doesn’t it. Quite right too

        2. 13.3.1.2

          NOT ONLY in the example of your second paragraph Paul – but when one considers MOST ANY improvement patent (and especially in burgeoning new areas – i.e., pioneering and ‘white space’ patents).

      2. 13.3.2

        That is not US law. It is a defense that your invention is nonobvious over the asserted claims.

        1. 13.3.2.1

          It surprises me to read that it is a defence to an accusation of infringement of a duly issued patent claim that the accused embodiment is inventive over the disclosure in the asserted patent.

          How does that defence work? Is it that if the claim covers subject matter inventive over the patent’s disclosure then the claim cannot be valid? Or is it that the claim has to be construed to exclude such inventive matter?

          Either way, it strikes me as nonsense. So what detail of US law am I not appreciating, please.

          1. 13.3.2.1.1

            I think that Night Writer has become a tad discombobulated in his writings here.

            I think that I understand what he is aiming for, but one “cannot get there from here.”

          2. 13.3.2.1.2

            Max, we are talking about improvement inventions and their claims in that fall within the generic broad scope of claims of a prior patent. Not prior patents with spec disclosures that render the improvement anticipated under 102, or unobvious under 103 [and 103 prior art does not require its enablement].

            1. 13.3.2.1.2.1

              Ok. Call if what you want but, Paul I still don’t understand how the non-obviousness of the later improvement or selection can be the basis of a defence to infringement of the basic patent.
              We are not talking here about infringement under a DOE are we? There I can imagine that if the accused embodiment is inventive it escapes and if it’s inventive over the prior art then the claim can’t cover it.

              1. 13.3.2.1.2.1.1

                Correction. NOT inventive over the prior art is how I wanted to finish.

              2. 13.3.2.1.2.1.2

                Re: “how.. the non-obviousness of the later improvement or selection can be the basis of a defense to infringement of the basic patent.”
                ? It isn’t, if the later improvement is within the scope of a valid claim in the unexpired basic patent.
                [I once had to explain to an DOJ hired economist that just getting an improvement patent does not provide a “right to make or sell,” because it does not preclude potential infringement of earlier patents with generic claims.]

                1. This is perhaps the ‘best mode’ for teaching what a patent actually is: a negative right, and NOT a positive one “to make.”

                  As I have been noting for a VERY long time.

            2. 13.3.2.1.2.2

              Thing is Paul, Night Writer has tossed terms around without being precise as to which claims are in which item.

              I think that you and I are on the same page, but it is not clear how Night Writer is using which item under which section of law to have what effect.

              Clearly (as I noted at 13.3.1.2), plenty of post initial item may well be worthy of a patent on its own – and such will have zero effect (or collision) with the prior patent – under any of 112, 102, 103 and the like.

      3. 13.3.3

        Again, scope of enablement. Anything more is not enabled and anything less is taking from the inventor.

  3. 12

    The petition brings to mind Dann v Johnston.

  4. 11

    What’s good for the Flook is good for the Diehr.

    1. 11.1

      A (as in one, one of many) problems is that Diehr cabined Flook – see Bilski.

      To pretend that ALL of these decisions floating around and NOT creating a Gordian Knot is both irresponsible and reprehensible.

      1. 11.1.1

        So stop pretending that Diehr is floating around. It was a stillborn case that the majority completely failed on, other than the trivial holding nobody questioned.

        1. 11.1.1.1

          Please Pardon Potential re(P)eat…

          Your comment is awaiting moderation.

          January 30, 2024 at 7:15 am

          Except for the fact (as inconvenient for you as usual), that one of the case you like happens to reinforce (albeit in a completely Gordian Knot manner) that Diehr remains fully in force.

          We all KNOW why YOU want to consider it sti11b0rn – but you are just not the one to pick and choose a sliver of a selected sp1n as “permitting” some so-called “tr1v1al holding” to remain.

          You have to take ALL of it.

  5. 10

    OT, but Waco D.C. Judge Alan Albright has scored another notch in his all-time personal record of venue mandamus reversals with one more. Sending defendant Honeywell off to NC. With the CAFC reportedly finding abuse of discretion and no valid reason for the suit to be conducted out in Waco, West Texas, and applying the most recent 5th Cir. venue decision.

  6. 9

    Anybody wondering if Diehr has been overruled needs to first explain what Diehr was about in the first place. The idea that all one needed to do to pass 101 was insert a reference to a “method” or a “composition” in a claim was never taken seriously by anyone except for a few tirelessly aggrieved Internet w a n k e r s. Why was it never taken seriously? Because it’s total nonsense in the context of our patent system which allows applicants to recite the prior art in their claims.

    I note a lot of commentary in the thread dedicated or revolving around the debunked nonsense that one can’t “ignore” claim limitation in an eligibility analysis. First off, understanding the relationship between claim elements and the prior art is not “ignoring” the claim elements. It’s the only logical way to determine what was invented when presented with a claim that is mostly a description of the prior art. Second, “new” information is an abstraction and doesn’t become eligible for patent protection merely because it’s placed in a prior art context or used in a prior art method.

    This is not complicated. Because it’s plain logic, it also can’t be swept away by screeching and table-pounding and whining about what trendy claims “should be” eligible.

    So again for the whiners: if you think Diehr was not overruled (and it certainly was overruled) tell everyone what Diehr stands for and tell everyone how you eliminate claims that protect non-obvious abstractions (like medically relevant facts) in prior art contexts. Good luck. This question has been asked a thousand times over a decade and nobody has an answer (hint: that’s the great thing about logic).

    1. 9.1

      Some lazy person downthread wrote the following: “ I don’t think that there is any invention that can’t be described as some abstract idea together with some combination of known elements”

      News flash: not every invention is in the field of information-processing. Try harder.

      Also, taking absurdist positions and embarassing yourself with extremist positions is just a tired rhetorical move at this late date. Sure, some cases on the margins will be decided incorrectly or with some controversy. So what? That’s inevitable. It doesn’t mean you get to ignore the fundamental issue of how ANY eligibility test designed to expunge the protection of ineligible abstractions from the system necessarily needs to consider how the claim relates to the prior art.

      1. 9.1.1

        Your mantra of “relate to the prior art” is an abject
        F
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        at first principles.

        This is directly due to the actual law as written.

        But go ahead, and you be you, just point out exactly where you ‘read’ your version in the below actual words of Congress:

        35 U.S. Code § 101 – Inventions patentable

        Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

        1. 9.1.1.1

          Yet another ‘crickets’ from Malcolm.

          ooooh – I bet marty is bristling at “the dominance.”

    2. 9.2

      Malcolm,

      You are morally and cognitively bankrupt.

      Your “question” – no matter how many times asked – is a non-sequitur under the law.

      I fully “get” that you do not like the law as actually written by Congress in 1952.

      But your ‘version’ is just not up to you to implement, let alone continuously act as if it were implemented, while protesting that ALL OTHERS are nothing but “w a n k e r s.”

      You’ve been ploying that same old tired script like forever.

      1. 9.2.1

        “ Your ‘question’ is a non-sequitur under the law.”

        The absurd “holding” in Diehr which was instantly and rightfully ignored until it was totally obviated by subsequent decisions is the “non-sequitur”. A few loudmouth born yesterday know-nothing cranks like you screeching on the Internet is what plainly does not matter. A completely irrational unworkable “law” is not really a “law”. But you’re in the tank with the MAGAts and the worst people on earth so how would you know (and why would you care?)?

        1. 9.2.1.1

          You keep on attempting to denigrate something ONLY because it happens to be something you do not like.

          There was NO “obviated” as you claim, given that the subsequent holding held ALL of Diehr to STILL be good law.

          Notwithstanding your attempts at one-bucketing (which changes patent law not one iota), the facts of the matter is that the Supreme Court jurisprudence CANNOT be squared with itself.

          You know this – or at least should know this.

    3. 9.3

      Given that the EPO granted a very similar claim in October 2017, EP-B-2027515, I thought that a look at the EPO prosecution might be worthwhile.

      Obviousness objections were trenchantly put, but then overcome by argument. Perhaps it helped, to squeeze a patent out of the EPO, that the applicant was resident in Italy, the priority application was filed in Italy and the PCT at the EPO.

      No wonder then, that the patent owner thinks it ought to be given a pass by the courts of the USA. Mind you, there was no opposition filed at the EPO, and less than 20% of EPO-granrted patents survive EPO opposition unscathed. Patent owners should not set too high their expectations that any given presumption of validity will see them through all post-grant challenges to validity.

      1. 9.3.1

        Yet more of the shilling of EPO Uber Alles.

        Please respect the fact that our Sovereign provides BOTH an existence and level of Presumption of Validity.

        If you find that you cannot do that, kindly just STFU.

        1. 9.3.1.1

          But anon, that’s exactly my point. All jurisdictions that conduct an examination of patentability have a presumption of validity. The interesting question is: In a patent system optimised to promote the progress, how much weight should that presumption carry, when a duly issued patent is litigated?

          1. 9.3.1.1.1

            But you WELL KNOW MaxDrei that the US presumption is not merely a presence of that presumption but a level as well.

            You have (in the past) directly whined on that second portion.

            Please do not now try to pretend that THAT second portion has no meaning.

            1. 9.3.1.1.1.1

              Has “no meaning” you write. How useful to the patent owner on this particular occasion was the much-vaunted uniquely high “level” of the US presumption of validity? How much “meaning” did it have for them?

              The US-level presumption turned out to be delusional, worse than useless for the patent owner, in that it gave the patent owner false hope that their duly issued patent would stand up to the post-issue attacks on its validity. That’s the “meaning” I take from this case.

              1. 9.3.1.1.1.1.1

                Ask i4i.

                As for any other case – do not confuse losses on other grounds (just or otherwise) with both the presence and level.

                You confuse yourself as to “meaning” doing that.

                1. The Sup. Ct. i4i fact case is actually another good example of prior art [prior actual software] the PTO examiner did not [and probably could not] find, or could not assert. Also, as I recall, it was not about the presumption of validity. It was sustaining the long-existing additional U.S, requirement of “clear and convincing evidence.” That requires “clear and convincing evidence” that the asserted evidence is authenticated as valid evidence. E.g., proof – to that level – that asserted prior art software was actually in public use or on sale. [Not, as in the doctrine-originating old Barbed Wire cases, mere oral testimony of a paid witness that he had seen some barbed wire like that many years earlier.]

                2. Check again on that Paul – the seminal holding was BOTH the existence and LEVEL of presumption of validity.

      2. 9.3.2

        We pay no attention to Snowflake’s flapping around hey hey look at me. What were the arguments that overcame the obviousness rejection?

        1. 9.3.2.1

          What were the arguments, you ask. The usual ones, is my reply. No hint or suggestion in the prior art. That assertion was good enough to bring the EPO Examiner to a decision to let the case through, rather than take the more stressful and time-consuming path of refusing the application.

        2. 9.3.2.2

          flapping around hey hey look at me.

          Says the guy with the 0bsess10n

          1. 9.3.2.2.1

            But anon, is not Thomas asserting that I’m the Snowflake, not you? I had thought that his remark was aimed at me.

            1. 9.3.2.2.1.1

              My pal with the shifting historical pseudonyms has an over 98% rate of responses to or about me.

              Typically he does not join on new threads, so I can see why you may be confused.

              His usual gambit is to pick a random thread and comments about three to five weeks old and post nonsense.

              The fun thing is, he was SOOOO B A D at this that I set up an enterprise and I make coin when his posts take on a set of false or duplicative nonsense items.

              It’s a great side gig – I get to make fun of his efforts AND make some nice coin on the side.

              1. 9.3.2.2.1.1.1

                He doesn’t even respond to 10% of your

                G
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                H

                and when he does, it’s usually to one of your word salads that kinda might be intelligible (even if invariably wrong) and in so doing, he authors pretty much the only actual lulz to be found around here.

                After all, patent law is not exactly a font of comedy.

                OTH hand, a sense of humor is one mark of intellect. That’s why you are so tremendously unfunny, provoking the very antipode of amusement.

                Usually on these threads you are more than 50% of the total comments. Do some math Billy.

                1. That’s just one of your problems there, marty.

                  You want lulz instead of understanding.

                  That you ALSO think so highly of yourself with “mark of intellect” is merely you enjoying the view of your Dunning Kruger height of Mount
                  S
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                  D

                  (and that you want to jump in with Malcolm and the “B” moniker, well, the company you keep…)

                2. As for your misaimed characteristic (that’s just you being you).

                  As for the 10% of what I post, goodness, you seem not to be able to “do the math” yourself.

                  Here are two hints:
                  1) I would certainly hope that he does not respond to a MAJORITY of my posts, as I engage with people ACROSS the board.
                  2) The note of 0bsess10n is that he responds to or about ME – and NOT to most anyone else, ACROSS the board.

                  This is not difficult to grasp. Maybe pull yourself away from your staring at your reflection in that puddle.

                3. IMO, the meaning of life is to get a few laughs. That’s how we defeat nihilism & cold entropy.

                  I don’t know how one might measure Dunning-Kruger in the context of rando Internet commenting, but in America we usually keep score with money. Or winning at Jeopardy. Certainly not the guild-sense of Section 101 of the patent act requiring much of a brain to master.

                  I do know that demanding the last word suggests a psychological imbalance. Without doing a dataset on these thousands of threads (which might prove interesting considering the now decades old corpus) I’m pretty sure that you will have the last dated entry nearly every thread you comment on: IOW, nearly every thread.

                  Hmmmmm

                  link to learning-mind.com

                4. Your “response” is hilarious on a number of factors there, marty.

                  That you apparently felt compelled to justify your own feeling of being dominated in discussions on these boards, along with some odd projection of my mental state (that you clearly have no clue to) are among the most immediate and most funny.

                  Close by is the notion of my “demanding” any type of per se last word.

                  With my pal Shifty – who DOES play the “last word” game, I have more than once explained that “last” is not even close to being sufficient, as my words satisfy last AND best.

                  As to most all others that I engage, I am EVER imploring for MORE engagement, as those that do not like what I say simply run away from the points that I present and choose to leave me with that last word, seeing as they do NOT HAVE ANSWERS to those points.

                  You err as ever.

                5. lol – my pal, maybe you should try to actually read the post, instead of merely hyperventilating on seeing a post from me.

                6. Snowflake doesn’t understand when adults are talking.. Just tell him he’s the King of The World. please.

                7. I am not sure which is funnier.

                  That my pal Shifty imagines himself to BE in any group of ‘adults”

                  or

                  that marty would be a part of any such group in context of a discussion on patent law.

                8. Notwithstanding YOUR choice of game (thank$ yet again) – I have to inform you yet again, that between you and I, it is NOT merely ‘last,” but last AND best.

                  You have never won that game – no matter the upwards of thousands of your attempts.

                9. Please Pardon Potential re(P)eat…

                  Your comment is awaiting moderation.

                  February 5, 2024 at 7:03 am

                  Yet again, my pal Shifty – last AND best.

                  I do “get” this is something that you have never achieved.

                  But thank$ for your choice that I have enterprised on.

                10. Oh My! Snowflake goy the last word again. Boy is he smart!

                  Ok we’ll give you 1 more mindless ad hominem and then we’re closing comments. Think on it a while and make it really scary good, Snowflake.

                11. You play the ‘last post’ game AND want to assert mindlessness when your posts are so mindless – and predictable that I have been able to set up an enterprising system that earns me coin based on YOUR choices.

                  This is not a good look for you.

                12. You offering “grace” is hilarious.

                  And thank$$ again for mischaracterizing that I have enterprised on YOUR choice of posting.

                  Paid “to post” is quite incorrect – paid how YOU choose to post is an altogether different thing; you have total control over that, and my posting is totally UNaffecting that coin that YOUR choices bring to me.

                13. We do look out for him. Comments are closed.

                  If Snowflake responds, as he must, no one will see it but he will think they will.

                  Comments are closed.

                14. Triple thank$$$ from your “parting shot” of a false presumption, projection and your rather odd plurality of talking to yourself (in clear 0bsess10n of me).

                  Your choices – as ever.

            2. 9.3.2.2.1.2

              you a Snowflake? Heavens no. i always appreciate your perspectives . does anon make sense to you.?

              1. 9.3.2.2.1.2.1

                Does that particular poster “make sense” to me, you ask, Thomas? Even as I cast around for a suitable reply, I can’t help smiling. What chance do I have, thousands of miles outside the jurisdiction, of grasping the “point” which anon expresses in such an inimitable and idiosyncratic style.

                As I have often explained to anon, I see some of his posts as opportunities to write for the pleasure of other readers here. It is nice to know that my perspectives are appreciated by at least one other reader. Thank you.

                1. That “one other reader” has NO desire to understand you, MaxDrei.

                  Do not kid yourself – MOST ALL of that’s person’s focus is on me.

  7. 8

    Facts? We don’t need no stinkin’ facts! Just declare any invention abstract and you avoid all the inconvenience of a trial.

    1. 8.1

      Friendly reminder that eligible patents are granted, licensed and enforced ALL THE TIME. But keep crying those crocodile tears, you ridiculous infant.

  8. 7

    Excellent petition deserving grant.

    Yet the only question is how quickly the justices will for the umpteenth time stick their collective heads in the sand instead of righting the unconstitutional wrong of Mayo / Alice.

  9. 6

    The “OPINIONS BELOW” section of this Ficep Corporation Petitioner brief is confusing, but it is clear that this is a cert attempt in a case that never went to trial, and presumably never had the patent claims reexamined in a reissue or IPR or trial. That is, only an PTO examiner’s limited search and office action on the application. Thus, too many claims like this end up on appeal or ever in cert petitions. It saves the defendant and the District Court a great deal of time and expense, But not the Fed. Cir. or the Sup. Ct. legal assistants. Defendants [clients] have to pay for Fed. Cir. briefs and oral arguments, opposition briefs to en banc reconsideration requests, as here, and responsive briefs to cert petitions, as here. Spending client funds on the latter which could have been avoided by a cheaper IPR in too many cases.

  10. 5

    Despite these clear indicia of patentability

    Just wanted to point out that these are not indicia of patentability, but only of non-obviousness.

    1. 5.1

      Apotu,

      In the best Clinton tones, “that depends on what the meaning of [these] ‘is’ ”

  11. 4

    To quote Justice Stevens at oral argument (which I attended): “This case is nothing like Diehr.”

    Look, I’m as pro-patentable subject matter as there is. I did write “Everything is Patentable,” after all. But even I can recognize the difference between a claim that seeks too much (I did write “Life after Biski,” after all) and one that is for a real invention.

    Here’s the problem with this invention: no limitation as to what’s being manufacture, no limitation as to how, no limitation as to how the drawings are done, no limitation at all, really. And if it’s true that this was all done at the machine in the prior art, then what’s really being claimed here? Now, maybe this was really hard to implement in steel manufacturing. So, great, get a narrow claim on that advance. But nobody is praising their innovative manufacturing process because it taught us how to download a file to a 3D printer rather than use an SD card.

    For comparison, here is Diamond v. Diehr:
    “1. A method of operating a rubber-molding press for precision molded compounds with the aid of a digital computer, comprising:
    providing said computer with a database for said press, including at least,
    natural logarithm conversion data (ln),
    the activation energy constant (C) unique to each batch of said compound being molded, and
    a constant (x) dependent upon the geometry of the particular mold of the press,
    initiating an interval timer in said computer upon the closure of the press for monitoring the elapsed time of said closure,
    constantly determining the temperature (Z) of the mold at a location closely adjacent to the mold cavity in the press during molding,
    constantly providing the computer with the temperature (Z),
    repetitively calculating in the computer, at frequent intervals during each cure, the Arrhenius equation for reaction time during the cure, which is
    ln v = CZ + x
    where v is the total required cure time,
    repetitively comparing in the computer at said frequent intervals during the cure each said calculation of the total required cure time calculated with the Arrhenius equation and said elapsed time, and
    opening the press automatically when a said comparison indicates equivalence.”

    Note the specificity:
    1. Industry
    2. The SPECIFIC thing being made
    3. The SPECIFIC way it’s being made
    4. The SPECIFIC equation being used with SPECIFIC inputs
    5. The SPECIFIC way the equation is used
    6. The SPECIFIC hardware being used
    etc.

    The post-Alice patent most like this is Thales Visionix, which used specific formulas to help calculate the position of a specific type of helmet in an aircraft. And that was found eligible.

    1. 4.1

      That’s Bilski oral argument – whoops!

      1. 4.1.1

        Quoting Stevens in view of 35 USC 101 is more than a bit problematic.

        1. 4.1.1.1

          Much, much more than a bit problematic.

          Stevens is the reason we are in the situation we are in now where the courts use 101 to invalidate any claim they don’t like.

          Stevens view of computers as stated by Stevens was you write down on a piece of paper what you want the computer to do and then hire a clerk to go and program the computer. A man educated before the start of the information revolution. He didn’t understand or even know of Turing work. An ignorant, nasty old man.

          1. 4.1.1.1.1

            You are both missing my point. My point is that even Stevens, who dissented in Diehr, thought that Bilski didn’t rise to the level of the _Diehr_ patent. And I don’t think you can credibly argue the contrary.

            1. 4.1.1.1.1.1

              If your point was that other sections of law are proper rather than 101, then fine.

              Otherwise, as stated, quoting Stevens in view of 35 USC 101 is more than a bit problematic.

              He is simply one that would have violated separation of powers and explicitly overwritten hard words of Congress in view of business methods.

              Nothing that man has to say on 101 should be referenced as being meaningful.

              1. 4.1.1.1.1.1.1

                My point was simply that this patent is nothing like Diehr. I don’t see anyone disagreeing with me. And people should take heart in that fact, because it means Diehr was not, in fact, overruled. FWIW, I think American Axle comes much closer to rendering Diehr dead letter than this case.

                1. Please Pardon Potential re(P)eat….

                  Your comment is awaiting moderation.

                  January 29, 2024 at 2:54 pm

                  Can you make your point without reference to Justice Stevens?

                  THAT is my point.

                2. JUSTICE STEVENS: May I ask this question?
                  What do you think the strongest case from our
                  jurisprudence is that supports your position?
                  MR. JAKES: I would say it’s the Diehr case.
                  JUSTICE STEVENS: Which one?
                  MR. JAKES: Diehr. Diamond v. Diehr.
                  JUSTICE STEVENS: Diehr?
                  MR. JAKES: Yes.
                  JUSTICE STEVENS: That’s, of course, nothing
                  like this patent.

    2. 4.2

      Yes, it would be nice to see a cert petition trying to narrow Alice that did not have claims with obvious prior art obviousness, and 112 scope, problems. Also, one without the usual very misleadingly truncated partial quote from Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980).

      1. 4.2.1

        Sorry, this was intended as 3.1 not 4.2.

    3. 4.3

      Michael, as I remember you from reading various articles you have written you are not pro-patent. And your views on 101 are typical of the Woke with some little out to hold the claims are abstract.

      1. 4.3.1

        Your memory is faulty. If your recollection were correct, you would know that I would consider this patent to be patentable subject matter, and also that I disfavor the current rules because you can modulate the level of abstraction to find anything abstract, including our most famous patents.

        What I am saying is that given the world we are living in, it is silly to argue that the patent is like the Diehr patent, because it is not. And pressing claims that it is will not help fix the 101 rules.

        1. 4.3.1.1

          What’s silly is having discussions with people who can find any dimension of wokeness in this context.

          1. 4.3.1.1.1

            Please Pardon Potential re(P)eatS…

            Your comment is awaiting moderation.

            January 29, 2024 at 2:57 pm (first)

            Yeah, that’s a bit silly.

            Plenty of other items to which ‘W0ke’ is directly amenable.

            Taking down strong patents (and strong innovation protection) is NOT just an item that derives from those that despise ‘personal property,’ as it is also can be noted to derive from those that despise ‘personal property of others’ – as in, Efficient Infringers.

        2. 4.3.1.2

          Indeed. Alice is just reformulated 2nd circuit gist or heart of the invention test – no patent claim can survive, because basically it’s erect the strawman/burn the strawman analysis. It’s even worse, because it is applied to the pleadings not summary judgment but it probably happens there too. It’s the black hole of patent law swallowing up 112, 102 and 103.

    4. 4.4

      Michael you betray yourself with the argument that the claims are too broad.

      That should have NO bearing on whether a claim is eligible. Broadness has to do with enablement and what prior art may be used.

      Please be honest with us. The time of hoodwinking Woke is coming to a close.

      1. 4.4.1

        Again you betray your lack of familiarity with my work. (which is OK, you don’t have to read it, but don’t act as if you have when criticising my arguments). My article was simple – in a world after Bilski, abstractness is about breadth – are you claiming more than you have given the world (in a sort of super-enablement way). And in THIS world, this patent, IMO, clearly has breadth problems, no different than the breadth problems that faced Morse in the 1800s.

        1. 4.4.1.1

          THAT though is legal error and should NOT be accepted on its face.

          We do no one any favors by perpetuating errors of conflation.

          EVERY single chance, EVERY opportunity, the error must be denounced for what it is.

          1. 4.4.1.1.1

            Michael, I agree with anon. The breadth issue is one of enablement. You should be entitled to the scope of enablement.

            It is called, by the way, the ladders of abstraction, which we learn in engineering school.

            1. 4.4.1.1.1.1

              … and – as I have shown – has its parallel in patent law.

            2. 4.4.1.1.1.2

              I don’t know what you are so cranky about. I understand how enablement works. I published about this 15 years ago, when 101 was not even a glimmer in most people’s eyes, and the Supreme Court cited me on this point in Prometheus, and then rejected it.

              The breadth argument comes as a way to help the court limit the broad application of 101. It’s called “Life AFTER Bilski” not “Life in a World in which Bilski Never Happened and all the Rules are Just Like We Want Them.” The breadth argument was ALSO rejected by the Court in Prometheus, saying hey, that’s enablement, but we want 101 to do MOAR. My point, which you’ve both apparently missed in your zeal, is that this claim does not look like Diehr. It is way, way, way broader, and it is the type of claim that courts have been invalidating since O’Reilly v. Morse.

              Finally, if you google “levels of abstraction,” you’ll see that it is a common term in computer science, which is my area, and if you google “levels of abstraction law,” you’ll see that it is the common term used in law for this phenomenon. But also, ladders works, I agree.

              1. 4.4.1.1.1.2.1

                The breadth argument comes as a way to help the court limit the broad application of 101. It’s called “Life AFTER Bilski” not “Life in a World in which Bilski Never Happened and all the Rules are Just Like We Want Them.

                You are confusing capitulation to bad law that needs to be fought with some type of “gosh, gee, we can’t do anything.”

                Wake up son.

                Law won’t be corrected with that type of 10ser attitude – and YES, we ALL should be cranky as opposed to be turned into lemmings.

              2. 4.4.1.1.1.2.2

                Michael, if anything according to the CAFC these claims are an automation of a manual process. So, it is like Alice.

                1) Broadness is not a 101 issue. Morris was not about broadness but about enablement. 2) I don’t think that adding a new tool to invalidate patent claims is a good idea. 3) The CAFC has pushed Williamson for invalidating patents whenever they feel like using enablement. And have invalidated 10’s of thousands of patents with enablement. 4) Alice/Mayo means any claim can be held invalid as abstract.

                Broadness is just as bad as abstract. There is no limiting principle.

                Actually, if real patent law is used–not anti-patent judicial activism imaginary patent law–then the limiting principle is pretty easy to understand. If a non-obvious invention is within the scope of your claim that is not enabled by your specification, then the claim is too broad. Any other principle is just nonsense. Except if the claim is so broad that that one can show inventions that aren’t enabled that are within the scope of the claim.

    5. 4.5

      Here’s the problem with this invention: no limitation as to what’s being manufacture, no limitation as to how, no limitation as to how the drawings are done, no limitation at all, really. And if it’s true that this was all done at the machine in the prior art, then what’s really being claimed here?
      Why is any of that necessary for inclusion into the claims?

      Note the specificity:
      1. Industry
      2. The SPECIFIC thing being made
      3. The SPECIFIC way it’s being made
      4. The SPECIFIC equation being used with SPECIFIC inputs
      5. The SPECIFIC way the equation is used
      6. The SPECIFIC hardware being used

      And all so incredibly easy to design around. That’s the problem. I can draft incredibly specific claims, but it would be trivial to design around those incredibly specific claims — and still practice the “invention.”

      This is how the Federal Circuit is neutering the US Patent system.
      Draft too broadly, and get invalidated under 101
      Draft too narrowly and the claims will not be infringed

      And there is no Goldilocks zone. If there was, the Federal Circuit would expand 101 to encompass it. I ask this question from time to time, but how frequently do we see decisions by the Federal Circuit on damages these days? The answer is very rarely because very few patents ever survive long enough for damages to be an issue.

      1. 4.5.1

        “very few patents ever survive long enough for damages to be an issue”

        Maybe you want to qualify this absurd claim…? Happy to be wrong, but I feel confident that the vast majority of patents do not end up in trial or in IPR but expire “naturally.”

        1. 4.5.1.1

          Please Pardon Potential re(P)eat…

          Your comment is awaiting moderation.

          January 29, 2024 at 3:00 pm

          I am pretty certain he means those that are brought to bear on infringers, and thus are challenged (giving falsity to the Patent Office’s own claims for near perfect quality).

          But you knew that, eh?

      2. 4.5.2

        +1

  12. 3

    Once again.

    Even if these claims were eligible, how they aren’t obvious to a fifth grader eludes me. I remember CATIA from 1982. The idea of a computer design file loading directly to a machine tool was ancient as of 2007.

    Once again.

    Is it a method? Yes

    Is the result of the method some species of useful information? Yes- the machine tool instruction set.

    Does the utility of the information arise within a human mind? No. The machine tool consumes the instruction set.

    The claims should be eligible. And they should not have survived the first office action.

    This court seems to have no interest in patent eligibility- they have had many chances to weigh in. It may be a very long time before Alice goes to wonderland.

    1. 3.1

      Much of the mess that is 101 utility jurisprudence can be attributed to a failure of will to apply 103. I remember listening to the oral argument stream in Bilski, and Chief Roberts asking

      “John G. Roberts, Jr.
      Well, but your claim 1 it seems to me is classic commodity hedging that has been going on for centuries.”

      Indeed. Counsel’s answer was

      “J. Michael Jakes
      –Your Honor, if that were true, then we should run afoul of the obviousness provision under section 103.

      Now, the Patent Office did initially allow some of our claims over the prior art.”

      So because the PTO may have been less than thorough in its art-based analysis, and chose and expedient by rejecting under 101, here we are.

      The problem I have with the Alice “Abstract Idea” test is that it is vastly over-inclusive. I don’t think that there is any invention that can’t be described as some abstract idea together with some combination of known elements. A test that invalidates all patents under 101 can’t be the proper test, can it?

      1. 3.1.1

        ANY – and I do mean quite literally “any” – obfuscation and conflation of 35 USC 101 with other segments of law indicate a PURPOSEFUL obfuscation in order to reach a Desired Ends by ANY Means.

      2. 3.1.2

        +1

        Exactly. Every high tech-related claim can be abstracted out as can every biotech-related claim relies on something that occurs in nature. Focusing on either in a vacuum leads to this mischief.

      3. 3.1.3

        Well put: “The problem I have with the Alice ‘Abstract Idea’ test is that it is vastly over-inclusive. I don’t think that there is any invention that can’t be described as some abstract idea together with some combination of known elements. A test that invalidates all patents under 101 can’t be the proper test, can it?”

        This is my main problem: you cannot tell what will be Abstract with nothing “substantially more” or what will be Abstract but have something “substantially more”.

        Certainly, any hardware that involves software is abstract at some level.

        1. 3.1.3.1

          .. and this comes directly from the (purposeful) mischief of NOT understanding that in the computing arts, it is mere design choice to render ANYTHING in one of the ‘wares’ (hard, firm or soft).

        2. 3.1.3.2

          “Abstract” is a word that can be defined.

          “We trace the origins of abstract to the combination of the Latin roots ab-, a prefix meaning “from” or “away,” with the verb trahere, meaning “to pull” or “to draw.” The result was the Latin verb abstrahere, which meant “to remove forcibly” or “to drag away.” Its past participle abstractus had the meanings “removed,”

          ~Merriam Webster

          I see the word clearly as the drawing of meaning from information. No human mind, no abstraction.

          That’s the basis for the idea that useful information in the patent context can be eligible if consumed by a non-human actor, but can never be eligible (always abstract) if consumed by a human mind.

          Information is only useful when consumed; patents are concerned with usefulness.

          Traffic light indeed.

          1. 3.1.3.2.1

            And – as you are no doubt (?) aware, THAT definition was NOT used by the Court(s).

            What you see – colloquially – is simply not always what needs to be seen in this terrain.

            Your invocation of ‘traffic light,’ notwithstanding, you just don’t grasp why that FULL STOPS your nonsense.

            1. 3.1.3.2.1.1

              What definition of “abstract” WAS used by the court? Ever?

              Oh. I see.

              1. 3.1.3.2.1.1.1

                Do you see?

                Really, do you?

                Tell me then, what is it that you see. Explain while being cogent in view of patent law (get help as needed).

                1. Yea, I really do.

                  I see that you can cite no definition of “Abstract”.

                  I see a blow hard who has nothing but gibberish to add here. Every comment you made on this thread is an attempted in sult wrapped in word salad.

                  So really, I see you. Cite the definition or S T F Up already on the lost point.

                2. Maybe you want to try to be LESS dense.

                  I am NOT the only one that did not cite a definition.

                  That’s kind of the point.

      4. 3.1.4

        “Much of the mess that is 101 utility jurisprudence can be attributed to a failure of will to apply 103.”

        Step 1: Create a system where it is hard to apply 103 to abstract inventions.

        Step 2: Decry the lack of vigorous application of 103 to abstract inventions.

        Step 3: Profit Receieve slap from Supreme Court.

        1. 3.1.4.1

          as an examiner would (errantly) view the situation…

      5. 3.1.5

        I don’t think that there is any invention that can’t be described as some abstract idea together with some combination of known elements. A test that invalidates all patents under 101 can’t be the proper test, can it?
        And here we are with it being the test.

      6. 3.1.6

        “ I don’t think that there is any invention that can’t be described as some abstract idea together with some combination of known elements”

        Are you kidding me?

    2. 3.2

      Once again, marty, your pet pony does not ride here because – expressly – you refuse to understand the terrain of patent law and what utility means in the patent sense.

    3. 3.3

      Even if these claims were eligible, how they aren’t obvious to a fifth grader eludes me. I remember CATIA from 1982. The idea of a computer design file loading directly to a machine tool was ancient as of 2007.
      Sigh. It is incredibly easy to disparage any claim when you ignore 95% of the claim limitations and the claimed invention as a whole.

      1. 3.3.1

        WT Please identify the 95% limitations in this claim that modify loading a computer design file loading directly to a machine tool.

        7. An apparatus for automatic manufacture of an object, comprising:

        a computing device adapted to create a design model of an object having multiple individual components, at least two of the individual components defining an intersection at which the two components are in contact with one another;

        at least one programmable logic controller in communication with the computing device and with at least one manufacturing machine;

        a receiver associated with the programmable logic controller for receiving the design model of the object;

        a database unit adapted to store the design model received at the receiver;

        a processor which is associated with the programmable logic controller and extracts from the design model a plurality of dimensions of components which define a plurality of components of the object;

        wherein the processor identifies a plurality of intersection parameters which define the intersection of the two components;

        wherein the processor extracts from the design model the intersection parameters;

        a transmitter associated with the processor for transmitting the intersection and machining parameters and the component dimensions from the programmable logic controller to the at least one manufacturing machine; and

        wherein the at least one manufacturing machine manufactures the components based at least in part on the transmitted component dimensions and on the transmitted intersection and manufacturing parameters.

        ’cause all I see here is a design file being loaded to a machine tool using the generic means available….to a fifth grade PHOSITA.

        1. 3.3.1.1

          cause all I see here is a design file being loaded to a machine tool using the generic means available
          As I said … easy to do when you ignore 95% of the claim language.

          1. 3.3.1.1.1

            As noted above link to patentlyo.com

            The early cases in the lineage employed MORE of the “Gist” language.

            That led to widespread (thank you ) panning by me and those like me that easily drew parallels to the Gist/Abstract sword that Congress explicitly eliminated in the Act of 1952.

            While the language has changed, the repeating of history goes on.

          2. 3.3.1.1.2

            Calling out someone for hand-waving and then engaging in hand-waving in response to a direct question is a bad look.

            1. 3.3.1.1.2.1

              Another examiner-like grasp (and yes, read that as slipping through your fingers)….

            2. 3.3.1.1.2.2

              211 words boiled down to “a design file being loaded to a machine tool using the generic means available.”

              What more do I need to do to establish that he ignored the vast majority of the claim language.

              1. 3.3.1.1.2.2.1

                Wt,

                Consider the source: this is the same Ben (as an examiner), upvoted nearly every anti-patent comment of Malcolm’s in the days that this blog ran on the DISQUS format.

                Of course he is going to jump to marty’s side.

              2. 3.3.1.1.2.2.2

                WT The “claim language” you claim I’m ignoring are generic words like “database” “unit” “processor” “transmitter” “logic controller”

                ALL of which represent the minima needed to “load a design file to a machine tool”

                There is literally nothing in that “claim language” not contemplated – by a fifth grader- to “load a design file to a machine tool”

                Not the claim as a whole, not the individual claim elements, nothing.

                The claim amounts to no more than the idea- although in my view, the idea should be patent eligible. It’s just beyond obvious, to the point of a triviality.

                I’m asking you to point out where the claim exceeds the idea, as of year 2007.

                It does not.

  13. 2

    Carl Sagan begins his petition for certiorari with a brilliant statement of how his books have won numerous awards and complements for their innovative approach, been copied by competitors, and led to numerous successful sales. Despite these clear indicia of patentability,

    Not really worth reading beyond this silly introduction. I’m sure the petition is even worse.

    Anybody wondering if Diehr has been overruled needs to first explain what Diehr was about in the first place. The idea that all one needed to do to pass 101 was insert a reference to a “method” or a “composition” in a claim was never taken seriously by anyone except for a few tirelessly aggrieved Internet w a n k e r s. Why was it never taken seriously? Because it’s total nonsense in the context of our patent system which allows applicants to recite the prior art in their claims.

    1. 2.1

      which allows applicants to recite the prior art in their claims.

      Talk about w a n k i n g….

  14. 1

    This may have a slightly better chance of having cert granted than American Axle because the invention is a bit easier to understand as I don’t think an invention of the kind claimed by American Axle was a bit too complicated for the justices to understand.

    The arguments presented are sound. The claim is directed to a machine used in a manufacturing process. Even after Alice, I think the vast majority of patent attorneys would consider this to be patent eligible. I also highly suspect that the USPTO would allow such claims under 101 even if presented today.

    All that being said, the fact of the matter is that the Supreme Court has little interest in cleaning up the mess they made with Alice/Mayo. I would be surprised if they took this on.

    1. 1.1

      I would hope the “vast majority” of patent attorneys would flag this as being problematic under 101. You have to ask what the “invention is” (what “ underlies “ the claims). If it’s automating something— and it clearly is here— it’s going to be a problem. If you are a patent attorney and you think a claim is eligible because it recites a machine, then you probably shouldn’t be a patent attorney.

      1. 1.1.1

        If you are a patent attorney and blindly accept your comment, then YOU should not be a patent attorney.

      2. 1.1.2

        If it’s automating something— and it clearly is here— it’s going to be a problem.
        An electric drill is the automation of a hand drill. Not patent eligible? It is merely the application of a natural law (e.g., Faraday’s law of electromagnetic induction) applied to conventional components (e.g., a drill bit).

        Is an electric drill patent eligible or not? What would you advise a client?

        1. 1.1.2.1

          “ Is an electric drill patent eligible or not?”

          Let’s see the claim. What structures are described that aren’t in the prior art? There better be some.

          “What would you advise a client?”

          Describe the differences between the drill and the prior art in structural terms and establish that those differences weren’t suggested by the prior art and establish the unexpected results and advantages flowing from those differences.

          This is how competent patent attorneys do it. Of course, the client needs to have invented something in the first place. This is where a lot of patent attorneys get hung up because they want the work, even when there is no invention.

          1. 1.1.2.1.1

            What structures are described that aren’t in the prior art? There better be some.

            Retreating to your tired “singular objective physical structure” mantra…?

            This is where a lot of patent attorneys get hung up because they want the work, even when there is no invention.

            You are projecting your cognitive dissonance again.

            It must truly gall you to have to work to create personal property protection for people you despise and ‘personal property’ as a concept you despise.

          2. 1.1.2.1.2

            This is why I rarely respond to you. It is like trying to talk patent law with a 1L.

            Let’s see the claim. What structures are described that aren’t in the prior art? There better be some.
            I referred to patent eligibility — not patentability.

            Describe the differences between the drill and the prior art in structural terms and establish that those differences weren’t suggested by the prior art and establish the unexpected results and advantages flowing from those differences.
            Again, patent eligibility — not patentability.

            This is how competent patent attorneys do it. Of course, the client needs to have invented something in the first place. This is where a lot of patent attorneys get hung up because they want the work, even when there is no invention.
            Comments like these is why I doubt your chops as a practicing patent attorney. No even marginally-competent patent attorney wants to work on a dubious patent application. Writing the application is harder when you doubt the patentability/patent eligibility of the invention. Prosecuting the application is also harder. I have plenty of work and want no part of dealing with a loser patent application. That you think patent attorney just “want the work” shows just how little you know about patent attorneys.

            1. 1.1.2.1.2.1

              Please Pardon Potential re(P)eat…

              Your comment is awaiting moderation.

              January 30, 2024 at 4:45 pm

              But it DOES show his cognitive dissonance and self-l0ath1ng.

              Don’t forget – his number one short script item is projecting

              Clearly, he FEELS as he accuses – he does what he does because he wants the work, and

              H

              @

              T

              E

              $

              himself for doing that.

            2. 1.1.2.1.2.2

              It’s 2024 and some born-yesterday melon head wants to believe that neither prior art or structure is relevant to determining the eligibility of a patent claim.

              Okay. You run with that. Also don’t forget that “everything is abstract” and “nobody knows what abstract means.” You’re a very serious person! And a real deep thinker, especially when it comes to allegedly new “electric drills” and how to claim them.

    2. 1.2

      They’re not final because they are infallible. They are infallible because they are final.

      1. 1.2.1

        And yet – under any reasonable understanding of US law, they are NOT – in fact – final.

        Checks and balances – THIS country is not ruled by the Clergy of the Nine.

        The Judicial Branch is NOT ABOVE THE LAW.

        They too serve UNDER the Constitution.

        Time to see your ‘pet phrase’ in context, my friend. Time to embrace YOUR oath of office.

        (or do you surrender to Dobbs, as past generations may have surrendered to Scott v Sandford?)

    3. 1.3

      The unpatentable subject matter issue and its Sup. Ct. case law source in the American Axle case was deliberately confused by some people with the unpatentable subject matter issue and its Sup. Ct. case law source in Alice, in spite of comments on this blog and IPWatchdog explaining the difference.

      1. 1.3.1

        I would posit that the true confusion was that of the Supreme Court (and the lower courts following their example).

        Just keeping it real.

      2. 1.3.2

        The unpatentable subject matter issue and its Sup. Ct. case law source in the American Axle case was deliberately confused by some people with the unpatentable subject matter issue and its Sup. Ct. case law source in Alice
        I count a multitude of references to Alice in the American Axle decision. What is the difference you speak of?

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