BPAI: PTO Should Apply Broadest Reasonable Claim Interpretation to Section 101 Analysis

Ex parte Koo (BPAI 2008)

Acting sua sponte, a BPAI panel recently entered a new ground for rejection against an IBM patent application: That the claimed process is unpatentable subject matter based on the Federal Circuit's recent en banc decision in Bilski. The claim is directed to a method of optimizing relational database queries and appears to be specifically directed to speeding up queries where a table is joined to itself. Although the preamble does focus on a "relational database management system," the body of the claim does not refer to any specific machinery beyond queries, sub-expressions, rows, and sets.

The legal point to consider from this case is that the PTO will apply its "broadest reasonable" claim interpretation during its §101 analysis. Here, the BPAI panel found that the broadest reasonable interpretation of IBM's claim does not necessarily "require computer or machine implementation" and thus that the claim fails the "tied to a particular machine" prong of Bilski machine-transformation test.

"Claim 1 does not recite any steps that necessarily involve machine implementation. While the preamble of claim 1 recites a "system," the "system" of claim 1 is not recited in terms of hardware or tangible structural elements. Rather, the "system" could be a software system, where the elements of claim 1 are implemented solely in software or algorithms. Thus, the nominal recitation of a "system" in the preamble does not transform claim 1 into patentable subject matter under § 101."

The BPAI also found that the claim "does not call for any transformation of an article to a different state or thing, nor does it require any transformation of data or signals." Based on the claimed step of "reforming the query," I would argue that the claim does require a transformation, but that transformation does not satisfy Bilski because the thing transformed (the query) is not "representative of physical objects or substances."

Notes & Comment

• In the appeal, the BPAI overturned the examiner's obviousness rejection based on the absence of a "self join" in the cited prior art.
• The disputed claim:

1. A method for optimizing a query in a relational database management system, the method comprising: evaluating the query to determine whether a sub-expression of the query is being joined to itself and whether a predicate of the query comprises an equality test between a same column of the sub-expression; determining whether a first row set producible from a first set of references of the query to the sub-expression is subsumed by a second row set producible from a second set of references of the query to the subexpression; and reforming the query to eliminate the joining of the sub-expression to itself based on evaluation of the query and determination of whether the first row set is subsumed by the second row set.

Comments

[Leopold Bloom]

"At best, don't you have split infringement with the problem of no direct infringer?"

No.

Sometimes Moonbeam should simply be dismissed out of hand.

[Malcolm Mooney]

"Moonbeam, quick on his feet as ever, but not too quick of wit, as usual, argued that the person who just sells software avoids infringement liability under reverse inherency. Moonbeam's point, which is inherent in his comment, is that if the hardware is inherent in the software step, then just selling the CD obviates culpability of the seller.

Moonbeam -- review induced infringement. You might start with ACCO v. ABA Locks and Belkin (Fed. Cir. 2007)."

I don't need to review induced infringement, douchebag. I specifically used the term "direct infringement" in my comment, as you are perfectly aware, for that reason.

My point is that rather than invoke some dumbaxx "reverse inherency" theory, if induced infringement is good enough for you why not simply write your software claims as computer claims? Then you don't need to create new legal theories (or give old ones new names) and we can be done with Beauregard claim nonsense.

[JTS]

lwmi wrote (way back on page 1):

"I think this is ridiculuous. Does the PTO require that the elements in claims in other arts be described with qualifications as it wants for software "system"? Has computing not progressed at all in last 50 years so that PHOSITAs don't understand that system in context of a Relational DataBase Management (RDBMs) system means nothing but a computer? In theory you can have a static RDBMs schema on paper, but to run queries, do indexing or any sort of operations it will have to be implemented only on a computer of some kind. Someone please donate RDBMs textbooks to the USPTO library."

One thing you're saying is that there are implicit limitations in the claims. But if that's so, why not just claim them and avoid the whole issue?

That's a practical response. Practicality aside, I think you're right. Language and terminology in the software arts is kind of like software itself; anyone call anything by any name they like. Overtime terminology can converge to common meaning, but often there is a problem with whether some language has well known meaning or now. Another problem is that many patent practicioners and examiners are not up to par on current terminology. Examiners often give ridiculous meaning to well-established terms, and drafters often use terms that are pulled out of a hat and have almost no meaning (to the phosita).

So coming back to your point, you're right, but there's no way to address the problem systemically. It's a problem with too many people involved who are out-of-the-know; they've never written or maintained code, they've never designed a system, never administered a database, never written project specifications, never had to debug a complex program, and so on... and they have usually have no clue about how a PHOSITA would interpret many common software terms.

As to the MM's of the world, try this thought experiment. Imagine a huge building, no windows, no information ever leeks out, hush hush and all that. A human "black box" so to speak.

Now imagine people could call the black box (or walk up to a customer window) and ask questions like "where is the neares McDonalds", or "find me information about FICA withholding", or "find me a plane ticket with so and so conditions", or "give me a circuit layout for this design specification", or "here's a movie, fit on this tiny little device for me", or "analyze performance featureX of my investment portfolio", ... and so on... you get the idea, pick any real and tangible benefit that software has delivered to the public in the last 50 years.

Now suppose we had no idea what went on inside that black box. Would we want the black box to work better? Would we want to improve the quality of what they do, how quickly they do it, what kinds of solutions/answers they can provide, and so on? Would we want to reward the workers in the black box for their advancement of the common good? Of course! Would we care about the metaphysical nature of the work they do? No. Why would we?

I think that part of the reason why people like Malcolm think that everything is obvious is because they ony see the world in physical terms. They don't see the world of imagination. They confuse implementation with creative conception. Implementation is easy, but conception often isn't. Saying an entire field of science and engineering as "obvious" is ... it speaks for itself.

Malcolm, instead of continuing to spout off about how everything is obvious, why don't you go pick up an old copy of "Programming Pearls" for some easy-to-understand examples of creative and beneficial programming. Pick a solution and tell us what makes it obvious to you.

[6]

"(a) PHOSITA doesn't need to know what it looks like"

O rly? Hmm, that's funny because so far as I was aware Poshita does need to know what something looks like to practice a structural invention. You're claiming the structure remember? How is one of ordinary skill supposed to practice the invention (i.e. the structure) by making such a structure if he does not even know what it is? Just because he could create a structure that will accomplish a function a device seperate from the claimed item (i.e. the seperate device being a computer) does not mean that the claimed structure is enabled since nobody (probably not even the inventorlol) in fact even knows what the structure is.

Also, anyone who ever examines one of these applications should object to the drawings until such a structure is shown in them. In detail, with all the thousands of bits shown individually. Until then, no patent issues iirc. Why are software examiners so lazy? Seriously, they have a lot of objections and rejections to make. These apps don't appear to be entitled to a patent at all.

"(b) PHOSITA doesn't know what it looks like, but can find out. See (a) above, then read the disk."

Wait, wait, so he can find out what his own invention/device looks like? Remember, you don't just have to enable the functionality of the device, you have to enable THE DEVICE. Just because the device is nothing more than a recording of things that result in your functionality doesn't mean that you've suddenly enabled a device by telling someone how to perform a function (on another device I should add).

"And if you do get the result you want from a forthcoming Fed Cir decision (quite possible), it will be an exception to the rule-type decision that doesn't logically fit with the rest of the law"

Can you give me another example of a claim type that is enabled by disclosing the functionality of a device seperate from the device being claimed? Thought not. It fits quite well logically thanks. Even presuming I can program like a wiz I still would not know how to make a disk that has a STRUCTURE as claimed since there is no example/drawing/description of the structure given.

"Do you not see how bizarre this proposed result is"

Yes, I do. The printed matter doctrine is odd.

"Printed matter doctrine" is nothing but an excuse to avoid coherent reasoning"

No, it is to restrict patents from where they were blatantly not supposed to go when they were created. You have copyright.

"Your assertion that "[n]o Poshita, or examiner knows what a structure of a cd that would perform such a function as claimed would look like unless the app tells us" evidences an ignorance of technology that is beyond belief."

Not really, I know you could program a cd with a program if you could write the program. That's not what we're talking about. What we're talking about is straight up making a cd with such a functionality. You haven't enabled the invention to the point that it is FULLY enabled. Fully enabling it would enable the poshita to simply make the device without having to go through iterative programming himself. Having it enabled to the point where a poshita can compile, test, reprogram, compile, test, reprogram until he gets a semifunctional program that may barely function hardly seems like the invention is fully enabled. It seems more like you enabled the functionality of a different device and said: go make your own device because I don't want to tell you how to make mine. It is a structure, that consists of 1's and 0's. Pretty simple right? Having to perform any experimentation to make such a structure is impermissible. There is no reason the invention should not be disclosed to the point of eliminating the undue experimentation. And even if such a judgement is made such that having to program over and over to get the "right" program is not undue exp, where's mah best mode? What's the BEST structure for performing this functionality? Don't even try to tell me the functionality IS the best mode. That is hands down ridiculous. We need a best mode of what accomplishes the functionality.

"(b) PHOSITA doesn't know what it looks like, but can find out (by making it himself and looking at it)."

Is funny. Dude seriously.

[6]

"Would we want to reward the workers in the black box for their advancement of the common good? Of course!"

Yes I would, but the patent system is not the way to do it.

[Malcolm Mooney]

"I think that part of the reason why people like Malcolm think that everything is obvious is because they ony see the world in physical terms. They don't see the world of imagination."

Thank you, Michael Jackson.

[6]

"After we had this long discussion about "mixed claim types" several months ago, you still don't get it. There is a difference between a claim directed to "a method and device, comprising ...." and a method that refers to a device or a device that refers to a method."

Pds, I figured I would get back to you even though you missed the point by a mile. SF wanst the claim to turn only on the method steps for 101. If that were true, then you have a claim in one statutory catagory (device) that is only relying on another statutory catagory for it trying to be valid. That was what caused ambiguity in the mixed claim types, if you will recall correctly, the claims were not directed to "a method and device comprising:".

In one of his actually on point analysis phawk addressed the situation:

http://www.patentlyo.com/patent/2008/12/bpai-pto-should/comments/page/3/#comments

"The problem was that the claim could have been read either as a system claim or method claim."

If we are only considering the method steps then when does infringment occur? When the method steps are performed, or when a device is made that causes a computer to perform them?

Bottom line is, SF is off base if bgards are going to be valid at all. They have to be concretely identifiable as a product through and through.

[JTS]

Examiner Six Thousand wrote:

""Would we want to reward the workers in the black box for their advancement of the common good? Of course!"

Yes I would, but the patent system is not the way to do it."

Fair enough, then let's say the same for everything else. There is no principled reason to discrimate between innovators of different types of useful technology. There is no reason for withholding patent rewards from software engineers while providing it to elecronic and mechanical engineers. It's as American as apple pie: inventors who improve our lives get to own what they create. Take it away from everyone, or take it from no one. There's no reason to nitpick with the software industry. The software patent naysayers are just people who want to freeride on the innovations of others. They want to be able to use other people's new and useful ideas without having to pay.

I've seen my share of junk software patents. Whose fault is it? The PTO and practicioners both (and applicant's, for that matter, who ought to be able to distinguish routine software engineering from true advancement ... to digress, some years ago, many companies filed applications for "inventions" that conisted of taking some known application and implementing in object oriented language, then it was XML, and and today its taking some known application and thinking its new to just implement it in a declarative language.).

If there are bad patents, that is the issue to address. No need to throw out the baby with the bathwater. Keep a high bar for obviousness. Hire patent examiners with *experience* in the art; too many out-of-school examiners without industry experience. They lack the coarse mental filter of what's new and what's not. And tight examination would make applicants feel the pain of hiring non-software attorneys to handle their applications.

Can you imagine a drug company hiring a civil engineer attorney to prosecute their patents? But for some reason, applicants will take any old attorney to file handle their software applications. Imagine how crummy drug patents would be if software folks like me wrote them!

[JTS]

More on the belief of the universal-obviousness of all software. Just about any invention can be analyzed closely enough to cast it as obvious (except maybe the stumbled-on-it inventions like snot dripping on a petry dish).

Take any problem. Break it down into very small parts. Analyze each part and try to solve it. The techniques for solving are at some level all old. Need a new drug? Ok, look at the closest equivalents. Perform some routine modifications (known). Analyze the results (old). Pick one that might be promising (yawn). At every micro-step of the innovation process you could argue that the mini-step is obvious. Everything is old at some level.

But there are some things that are above the level of routine engineering. It's nearly impossible to describe, but people in the field know and appreciate it when they see it. Returning to Malcom's Michael Jackson, innovation is kind of like a joke; an obvious one is not usually funny, but a good one employs some insight and creativity.

[6]

" And then I would argue that there cannot be two standards. If features may be inherent in prior art, then features may be inherent in claims. "

The biggest problem arises from the fact that there is a difference between a dicslosure (either reference or spec maybe, or maybe only reference) and claims. As you are well aware, claims must include each and every thing they wish to require to be present. There is no reading in limitations from anywhere, not the spec, and certainly not the prior art. I was wrong above, what you suggest goes beyond reading limitations into the claims from the spec, you're reading limitation into the claims from the prior art hah. I see this one getting really farm, yea h right. Next can we have "implicit" limtations in claims?

Oh, and what happens when bio computing comes up and running? Were all software claims inherently including a disclosure of using a bio computer to perform them as well as an old fashioned transistor based comp?

http://www.geek.com/articles/news/bio-computing-20020711/

[SF]

6:

a CRM configured to perform a method does not run afoul of the mixed statutory class caselaw

a CRM that is performing the method might

I was talking about the former.

If a CRM is configured to perform a method, but that method is abstract and doesn't meet the machine-transformation test, then the method is irrelevant to utility. If it's irrelevant to utility, why should it be considered for 102/103? For instance, suppose you claimed "a red compact disc"? If the color does not affect utility, why should it be given weight under 102/103?

[Brian Galvin]

Dennis and Leopold Bloom both brought up the nature of the transformation of data:

""I would argue that the claim does require a transformation, but that transformation does not satisfy Bilski because the thing transformed (the query) is not 'representative of physical objects or substances.'" [Dennis]

"I haven't read the case yet, but hopefully this is a good vehicle for an appeal (whether or not it's a "crap claim"), so that we can get some of this silliness cleared up. For example, why should the patentability of a communications-related method claim, which "transforms" electronic data, turn on whether or not that data is "representative of physical objects or substances"? And how much "tying to a particular machine" is enough?" [Leopold].

I think this is a very important point. I agree with you, Dennis, that a transformation of data is at least arguably made (whether or not one likes the claim, or software patents, or IBM, or whatnot). This case highlights an important problem with the Bilski opinion that Leopold highlights with his question. The "representation doctrine" expressed in Bilski does not make sense. Moreover, it is based on a completely inaccurate reading of In re Abele (discussed at more length here http://www.randomsheets.com/724369381.htm).

This artificial creation of Bilski (that is, it originated in Bilski rather than -- as claimed -- being restated there) leads to many problems such as the one Leopold points out. In fact, even in this case (Koo), one might ask whether it makes a difference if the query relates to a physical thing (such as a self-joined query concerning the contents of a warehouse), or if it relates to something "non-physical" (such as stock trades). In the first case, one could argue (following Bilski) that a transformation of data that is representative of a physical thing is made, rendering the claim potentially patentable under the machine-or-transformation test (with the "representation doctrine" built in). In the second case, it would not rise to this level because the transformation was not of data representing a physical thing.

It seems unwise to me that the statutory patentability of a claimed invention should rest squarely on what is represented by the data. Even in Abele, the difference between patentable claim 6 and unpatentable claim 5 is that "said data is X-ray attenuation data produced in a two dimensional field by a computed tomography scanner" -- this is what the Federal Circuit majority in Bilski used to create the representation doctrine. The Court erroneously asserted that the "data clearly represented physical and tangible objects, namely the structure of bones, organs, and other body tissues". The X-rays could have been diffracted by these "real" objects, but it could also have been diffracted by gases of varying densities, or nothing at all. Abele's patentable (and presumably patentED) claim 6 does not specify that the data comes from a CAT scan on a human being; it merely specifies that the data comes from a process of computed tomography using X-ray diffraction.

The clue (a word badly misused in Bilski) to patentability in Abele is that claim 6 did not preempt all use of the algorithm, but only uses involving this particular kind of data WITHOUT REGARD to what the data represents (if anything). The unpatentable claim 5 of Abele would preclude any use of the algorithm WITHOUT REGARD to WHERE the data CAME FROM (again, what the data represents, or not, is irrelevant).

This is the real issue, which Bilski completely obscured (although Judge Newman clearly was not fooled). This case just extends this problem, although maybe this would be a good one for appeal to address (that is, KILL) the representation doctrine, which is misbegotten.

[Brian Galvin]

Link was edited incorrectly on my previous comment. Should have been

http://www.randomsheets.com/724369381.htm

Also pertaining to Bilski:
http://www.randomsheets.com/399116569.htm

[6]

"Fair enough, then let's say the same for everything else."

While I personally agree with this because I personally believe in the public policy of granting patents only for true "breakthroughs" which of course are few and far between, I cannot agree that there is no reason to "discriminate" against software devs. Besides the fact that peices of paper are computer readable mediums (see the citation a few threads back about the real emerging technology of using colorful sheets to store GB's of data) and most bgard claims read on those sheets of paper and the printed matter doctrine is applicable to those particular computer mediums, there are still other reasons to "discriminate". Principle among them is that bgards are describing the functionality of a device in terms of the functionality of a completely different device, and the only limitations distinguishing the claim are the function of the other device. Not to mention that those limitations are generally method limitations in a product claim.

"a CRM configured to perform a method does not run afoul of the mixed statutory class caselaw

a CRM that is performing the method might"

I concur. But looking at your standard bgard you see a CRM that is "a CRM which when read causes a computer to perform a method" so the CRM is performing the method step of "causing...". Even if you claimed a CRM "configured to cause a computer to perform a method comprising:" I still say that you are improperly invoking functional language. According to the caselaw, and to the MPEP, functional language is distinguishing a thing by what IT does, not what something else does. By invoking the phrase "causes the computer to" you then shift the functional language away from describing the function solely of the disk, and make it encompass the function of the computer as well. In other words, my argument is that proper functional claiming claims in terms of what the only the item does and that these types of claims encompass what the item does as well as what another item does. You have thus not properly used functional language, and the entire functional limitation goes out the door and you're left with a CRM which is of course 102 rejected.

I will likely be making a rejection along these lines shortly irl so we'll see what happens. I don't really see how it could fail because, as with pds's example, claiming "a piece of metal configured to cause a screw with an cross shaped opening to perform a method comprising: tightening a beam to another beam" fails to describe ONLY the functionality of the screwdriver, and instead encompases additionally the functionality of a turning screw, which is not the device being described.

In any event you say you were talking about the bgards where the crm is configured to... Ok.

"If a CRM is configured to perform a method, but that method is abstract and doesn't meet the machine-transformation test, then the method is irrelevant to utility. "

I disagree, except as has been talked about above. Perhaps we are stating the same thing differently. If you are stating the the method has no impact on the utility of the CRM itself I concur. Because the utility of the CRM is to store data and be read and that's all. That is the basis for my improper functional claiming argument. You say utility, I say functionality but we're probably referring to the same thing, i.e. the purpose for which the CRM is used is to store data and be read and that is all. You then make an assertion that such a limitation that does not bear on utility should not be afforded weight. I'm not sure if I agree with you or not. It seems to me I afford limitations that don't have any direct impact on utility weight all the time in other cases. Isn't it widely held that if a claim as a whole passes 101 then the whole thing does? We have to go after the whole thing if we're going to use 101 man. That appears to likely be impossible. That's why I've all but abandoned using 101. That and the arguments that could be made based on the commissioners statements in bgard against any examiner bringing the case (but not litigator). We've got to use the more basic principles of patent law. Functional language, method steps being the only distinguishing things in a product claim, etc.

The "configured to" language is like a hybrid of functional language combined with structural language combined with intended use language and is thus a beast to take down.

[MaxDrei]

"a beast to take down" is it, 6? How about the 100 year old English case of No-Fume v Frank Pitchford that was so durable that it was relied upon when the EPO wrote its MPEP in 1977. Invention: something like "An ashtry with an openable lid, configured to keep the smoke in, after a smoker has consigned his smouldering dog-end to the tray." That's the case that legitimated functional/structural/intended use language in the UK. Was it wrongly decided? If so, where does it fail: 101 or 112?

[6]

I'm saying that it likely doesn't fail either Max, that's why it's a beast to take down. Let me rephrase that for your gentel English ears. This is a son of a bich to kill using the statutes 101 and perhaps 112 as well.

Funny you should bring up hating to search and the attorney declining to state what the invention really is.

Well, I've got a story for you. I just picked up an application that is a DIV of several other apps I have previously done. The AAPA has been relied on in the other cases, which are all abandoned now save one so I feel secure using it again. I would simply find his AAPA, but I have a feeling it's in Japanese. The invention was narrowed down to one species of a device through restriction. Two claims. Already had art on the dep. So it came down to finding art on about 10 words. Those words were the invention. Without dependents getting in the way, and a lot of old device recited in the ind to trip me up, I had found a solidly combinable reference within an hour of searching and thoroughly enjoyed myself the whole time. When you're hot on the google trail you always feel excited. One NPL leds to another backwards in time until the publication date is proper, and whallah, your reference.

Moral of this story: If the attorney tells us what the invention is then it's a blast to search and then to find the invention.

I should add, if the inventor had troubled himself to include all the different species of the genus that was the elected species in the spec/dependent claims I would still be looking. I appreciate the japanese guys, they don't f around as much.

[Noise above Law]

"Let me rephrase that for your gentel English ears."

MaxDrei, you've been around long enough to recognize that 6 is NOT interested in applying the law, he is interested in applying the law as he sees it. And his bias is in direct confrontation with the law.

Compare:
"because I personally believe in the public policy of granting patents only for true "breakthroughs" which of course are few and far between,..."

with

"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."

This plain, simple, basic premise of our system does not include the public policy of limiting patents only to those items deemed by the watchdogs of the system as ""true" breakthroughs". Specifically, the part about ANY new and useful improvement speaks to incrementalism, which by its nature is rarely "breakthrough".

The law is good. We need to execute to the law, not make up the law as it fits our perceived public policy or make power grabs to change the law to be how we want it to be. To continue my (american) football analogy, this is like the center not giving the ball to the quarterback and attempting to make a forward pass himself. It doesn't work and isn't meant to be played that way.

This is a prime example of why the patent system is NOT working. Let's get a coach in a position who will drive his players to perform their roles as the rules of the game are set up. We're on a football field and we are not playing field hockey.

[MaxDrei]

Yes indeed Noise, but 6 is on to something, namely, whether the app as filed states any fall back positions (intermediate limitations/generalisations). What I find is: in ROW Yes, in the USA No. It's not a matter of the wording of the Statute, just how the judges interpret it. I have indeed been around a long time, and have consistently said that it's up to the courts to fix the system (if it is indeed broken).

[Michael Risch]

"I like Risch's approach."

Thanks, curious. This case is like the perfect storm for my scholarship - my last article "The Failure of Public Notice in Patent Prosecution" discussed the problems associated with broadest reasonable construction and advocates for using the PHOSITA rule during prosecution.

As for this case, it illustrates one of the concerns in my article - the BRC causes us to not focus on what's important. On the one hand the rule appears to do what it was designed to do - read a claim broadly so as to reject it if it was vague.

On the other hand, what a gigantic waste of resources - the BPAI admits that the BRC could broadly be construed as a "software system." Fair enough (even though I disagree), but even so, where else does software run? Is there some non-machine software execution system out there? Some wetware I'm not aware of?

What's the result? An amendment that says "a system running on a computer" which adds almost no explanatory power to the claim. Instead, the BPAI could have applied the PHOSITA interpretation rule and hit this issues head on - is this patentable subject matter or not?

[Rob]

ummmm. it seems really really obvious to me that the IBM patent here fails the simple obviousness test, rather than anything else... the patent asks for protection of essentially reforming a sql query thourgh simple optimization that any DBA sitting down doing manual DB optimization would perform or any number of optimizers on the market do already or could easily do. essentially it's the process of abstracting and re-organising SQL to gain optimization that should be patentable not what particular algorithm you apply inside this capabilty.

[Hahahahahahahahahahahaha]

"Yet again, MM gets worked up over nothing.

Unless this gets appealed, this application will receive a Notice of Allowance within a couple of months after the amendment that adds the 'magic words' to the claim."

On January 13, 2009, the amendment to claim 1 added the words "computer-implemented" to form the phrase "A computer-implemented method" and also replaced the phrase "the method comprising" with the phrase "wherein the computer performs the following functions." Claim 19 was similarly amended. No other amendments to the claims.

A notice of allowance was issued on 04/30/09 as to claims 1-27.

So much for "the war on software patents."

Hahahahahahahahahahahahahahahahahahaha

[6]

Haha, just because one examiner in the PTO doesn't fully understand Bilski doesn't mean that you'll get away with murder every time. Looking at the notice of allowance only it appears this guy is clueless.

You also notice the stunning lack of a reasons for allowance.

[6]

I'm tempted to ask Mrs. Daye just what exactly she felt made the machine recited in the claim particular.

[Hahahahahahahahahahahaha]

"I'm tempted to ask Mrs. Daye just what exactly she felt made the machine recited in the claim particular."

You do that ... a computer is a particular machine.

A computer isn't a stapler, a hole punch, a rotating chair, an oven, a faucet, a catyltic convertor, or a whole host of other types of machines. As such, it is a PARTICULAR machine. Not rocket science -- except for people having trouble reading plain English.

A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. See Benson, 409 U.S. at 70 ("Transformation and reduction of an article 'to adifferent state or thing' is the clue to the patentability of a process claim that does not include particular machines."); Diehr, 450 U.S. at 192 (holding that use of mathematical formula in process "transforming or reducing an article to a different state or thing" constitutes patent-eligible subject matter); see also Flook, 437 U.S. at 589 n.9 ("An argument can be made [that the Supreme] Court has only recognized a process as within the statutory definition when it either was tied to a particular apparatus or operated to change materials to a 'different state or thing'"); Cochrane v. Deener, 94 U.S. 780, 788 (1876) ("A process is . . . an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing.").

[6]

"You do that ... a computer is a particular machine."

/facepalm. Keep up with your caselaw fool.

[6]

/facepalm. Keep up with your caselaw fool.

[6]

/facepalm. Keep up with your caselaw fo ol.

[Hahahahahahahahahahahaha]

You wouldn't know good caselaw if it sat on your lap and called you mama.

[Noise above Law]

6,

for all your admonitions about keeping up with caselaw and your self effacing "/facepalm's", why is it that you never seem to remember the ruling case law regarding software and particular machines?

Must I school you yet again?

C'mon, you know the case... which of half a dozen threads do you want me to pull it from?

For a fool provocateur, you are really slipping into just being a fool.