Patent Models

MousetrapBy Jason Rantanen

As every student of patent law knows, inventors were required to submit a working miniature model of their invention along with their patent application until the late nineteenth-century.  Famous models include those of such iconic inventions as the Whitney cotton gin, the Singer sewing machine, and the Morse telegraph register.  A substantial number of those models still exist, although virtually all are in private collections. 

The Smithsonian Institute recently opened a a two-year exhibition of patent models from the collection of Alan Rothchild, offering everyone an opportunity to view examples of these models.  Entitled "Inventing a Better Mousetrap: Patent Models from the Rothschild Collection," the curated exhibit runs until November 3, 2013.  If you are in Washington D.C., it may be worth your while to wander over to the American Art Museum to check it out. 

Bonus: the Rothchild Peterson Patent Model Museum website has a page explaining what the models are and linking to the patents themselves.  

312 thoughts on “Patent Models

  1. 300

    OMG, this entire 300 thread is one you hijackoffed for your own paid narcissistic pleasure. I made the comment to rebuke 6, for his iron age reference to patent models. And lo and behold you managed to force in your favorite anti business method agenda and warped Bilskian view of the law.

    Then you manage to elbow your way into an exchange between myself and inane on history, with totally irrelevant comments that again led you to spewing your delusions on Bilski and 101.

    And of course your outrageous attempts to misrepresent and twist actual law provoked the usual ire of the fine legal scholars that read this blog. And thus you achieved your ultimate troll goal.

    And though you have been thoroughly castigated and bastardized for shilling, forced limp into a submission that your boldly asserted facts are merely your own fantastical theories and wishful thinking, you will start the whole game again during the next 101 article.

    You will forget all about the beating you took here and once again say Bilski banned business methods, made the MOT the exclusive test and all the rest of your BS agenda anti patent agenda. All while not answering a single line of questioning on the law or facts.

    Such is the online persona and ethics of a poster called Ned Heller

  2. 299

    Ned,

    My lectures are very few and far between, and very much deserved by those I lecture to, as I only respond to those that have stepped over the line (including you, as when you insult me rather than answer my simple questions).

    Now this post is a lecture – one you deserve.

    I really don’t care if you think I am someone else or not (Malcolm’s disease of seeing blood spots everywhere obviously infects you), you have no right to be rude when I merely ask simple questions – and then you have the audacity to complain that others are rude. Further, while MaxDrei is not a rude person, the other two posters you “glorify” are without a doubt the two most rudest posters on this blog.

    My simple questions engender debate because often times it is the simple questions that are most telling. Especially when people cannot answer those simple questions, or feel threatened by them.

    Do you feel threatened by my simple questions?

    Your rants here, lumping me in with others that may challenge the “priveleged few” are far more indicative of just who thinks they are emperors or gods. And likewise, you cry for debate is shallow and hypocritical, as you do not give answers (I think Anon is still waiting for a real debate with you, waiting for answers that have been asked countless times on countless threads, answers, “you have decided” you do not need to give.

    You indicate that I make myself out as an emperor or god of patent law. Nothing could be further from the truth. How often have I told you what the law was, much less, told you without adequate support?

    No Ned, I am afraid that this is yet again one of your games that you and Malcolm play in accusing others of the actions that you do. It is your narcissism that has been on parade of late, with your “deigning” to not bother reading posts, demanding pincites and such (and yes, I do note that Anon even gave you pincites in one set of questions, which you still refused to answer.

    My simple questions do not demand attention. They request answers. There is a rather substantial difference. And one I would expect you to recognize. If you were not so full of yourself that is.

    As far as your willingness to associate yourself with the crowd of MaxDrei, Malcolm and 6, well, that says far more than any simple question I could ask (I just don’t think you really understand exactly what that says).

  3. 298

    What I understand, simple, is that you and your fellow sock puppets are disrespectful jerks.  You go about demanding! that posters do this or do that or else you will whine and complain or whatever.  No one made you god.  No one elected you emperor.  You do not have the right to treat people with such disrespect.  

    At a minimum, the way you behave here is narcissism on parade.  You think that your opinion is the law and that you have the right to lecture others.  Lecture!!  You do it over, and over, and over again.  You really do not engage in legal debate.  You engage in whining and complaining and demanding attention.

    Why do you think that MaxDrei, I, Malcolm and 6, have had it up to hear with your presence here? 

    Begone, please.

  4. 297

    Ned,

    Do you realize that the questions are simple and that youranswers should be more complete?

    The actual answers should be that yes, it would be better if you started doing what you ask others to do (as one that you maligned without cause, I am qualified to lecture you on his). And yes, Um. no, rants were specifically on the point that you thought that mere blog message boards did not require the same level of respect, deference (and truth) that courts require. So the final answer is yes, your position and chastisement of others is in fact more than just a little hypocritical.

    You do understand what “hypocritical” means, do you not?

  5. 295

    and start treating people with respect?

    Wouldn’t it be better if you started doing what you ask others to do?

    Likewise, with your comment to Anon about behaving as if you were in court – Isn’t this exactly what Um, no. is upset at you about (that you do not treat this blog with the same respect as you would a courtroom, that you do not adhere to posting with the same honesty and integrity)?

    Don’t you think this appears to be more than just a little hypocritical?

  6. 292

    anon, OK.  I  will accept your summary of his remarks.  Just give me what you recall he said, and I will either accept that or I will check the record to see if your memory is accurate.

    OK?

  7. 291

    Jane, you really got a stick up your a… don't you.  You claim to lecture others and that they should obey your commands as if you were some sort of patent god.  Who elected you and your fellow sock puppets emperor of the entire universe?  
    What gives you the right declare as a matter of law that you are right and everyone else is wrong?

    Now, if you want to actually discuss legal issues with me or with anyone else, may I politely suggest that you get off your high horse and start treating people with respect?

  8. 290

    Ned,

    Coming from the person who has admittted that he hasn’t even read all of the threads (and yet still pontificates), your call to me at 3:51 PM is a slap in the face.

    You first. I will even settle for you answering only the points that I have put in one place – this blog. I have yet to see even that.

    Do not lecture on that which you yourself fail to do.

    Further, the congressional record is not a “research plan”, and Lamar Smith’s comments are but a small subset of the record. I did not bookmark them as I read them, otherwise I would be glad to share that mark. But for you to act like this is some onerous task is a bit over the top.

  9. 289

    So are you paid then to promote the MOT? Because every time you are beat over the head with Bilski and forced to concede that Bilski was not required to pass the MOT by the Supreme Court, and the MOT was struck down as the sole test, you come back the next day or two and start talking about the MOT again as if it were “the” test.

  10. 288

    Anon, I was in the leadership of the AIPLA and IPO during the '90s.  As such, I was generally consulted about legislative issues.  
    Generally, the IPO favored prior user rights, and advocated that they be implemented as soon as possible regardless of first to file.  The legislation that ended up passing in 1999 originally was proposed years earlier, and it had a more general prior user right section.  That section, among others, was opposed by universities and small inventors.  In response, it was narrowed time and again, but never to the complete satisfaction of the opponents.

    About this time, SSB came down.  Rather than delete prior user rights totally from the bill, the final offer of compromise was to limit the section to just business methods that had been deemed by SSB to be not categorically excluded as patentable subject matter, a result no one had expected or anticipated.  SSB was a very radical, and heavily criticized, sea-change in the law.  It potentially left many businesses unexpectedly exposed:   Prior use, to be prior art, has to be public.  Business that had long been using patented BMs typically employed the now validly patented BM algorithms in non public software.  The business community was angered by SSB, and was very concerned.  They very much supported prior user rights even if limited to BMs.

    Universities did not seek or obtain BMPs, so they dropped their opposition to prior user rights when limited to BMs.  The bill passed with prior user rights included, but limited to BMs.

  11. 287

    Anon, if you have a specific reference to something Smith said, and you are relying on it, you have to give me more than a research plan.  You might want to treat your fellows here on Patently-O with the same respect you would treat any fellow lawyer or judge.

  12. 286

    Ned,

    The congressional record was mentioned more than once – look there.

    In fact, your nemisis Um, no. provides a starting point.

    As to your “involvement” in 273, do you have any backup to that (it might make for some interesting reading).

  13. 285

    anon, I scanned this thread for a link to a Smith quote in vain. I appears you mentions Smith a number of times, but failed to at any time provide a link or even a cite.

  14. 283

    anon, I'll check Lamar's comments and get back to you.

    However, I was somewhat involved in the passage of 273, so I can speak first hand of what went on there.

  15. 282

    Hmmm, the part of the elephant I hold is long and slinky, therefore the elephant must be the same as a snake.

  16. 281

    Your turn.

    No, Ned, it is still your turn.

    Please do not piecemeal me with arguments – especially arguments that I have already refuted. YOu (once again) lay conjecture down that the S.18 must be in response to Bilski, yet offer no substance in the Congressional record for such a thought. It might help if you read what Lamar Smith had to say about Bilski before you advance your theories that do not have any support. Do not play the elephant game with the law – it is far too complicated and far too amenable to misrepresentation when you take such a piecemeal approach. TAKE THE TIME to understand the law as a whole prior to coming to a conclusion about what the law says. You keep on jumping the gun about what the law says to fit what you want the law to say without taking that time. I apologize if this seems like I am talking down to you, but I feel like I am talking to an anxious teenager who thinks he knows all the answers in the world (but is actually about to learn those answers the hard way).

    Ned, it will not be “my turn” until you take the time to understand my position – my complete position. Please refrain from responding without reading and understanding the total picture. Once you understand the total picutre, you will see why your repeated, unsubstantiated, what-you-want-the-law-to-be position simply fails as to what the law actually is.

    Lastly, there is no need to apologize for my “getting the better of you.” If you are going to apologize for anything, apologize for responding without understanding, or apologize for responding without a substantive argument (I know full well your opinion on the matter, but I am looking for far more than opinion).

  17. 276

    I do not have time to actually read these threads.

    Yet, you have time to be the most prolific poster…?

    Remember what Momma said:

    One mouth…
    Two ears…

  18. 275

    The failure to pass the MOT remains my main working theory regarding Bilski.

    Starting with a working theory that ALL NINE Justices came out against is not a smart way to start.

  19. 274

    but found fault in the claims because they did not pass the MOT.

    All nine justices said the opposite. There was no fault in not passing the MOT, because the MOT was not the exclusive test.

    You really need to accept what history has given you.

  20. 272

    NED: I don’t know the right answer.

    AI: You dont need to know the “right” answer. Just follow the law. MOT is not an exclusive test.

    NED: But I think one can say with some reliability that any method claim that does not pass the MOT, and is directed to a method of doing or conducting business, is probably not patent eligible.

    AI: Okay. I quit! You post this circular BS when you obviously know better.

    :: Actual Inventor is OFF the treadmill::

  21. 271

    AI, thanks for your reply.  Regarding Biksi, we both do not know why the Supremes held the Bilski claims to be abstract.  You suggested earlier that the Supremes thought Bilksi was claiming disembodied math, as in Benson; but that is really the MOT as the MOT is the basis for Benson's holding.  The failure to pass the MOT remains my main working theory regarding Bilski.

  22. 270

    NED: AI, I think the reason for our discussion was your and/or some others assertion that BMs were patent eligible without qualification.
    AI: I have never said such . Nor has anyone else.
    NED: Regarding my belief that BMs that fail the MOT not being patent eligible, I believe this is a matter of fact even if the SC did not say so in so many words.
    AI: This being your “belief” negates it being a matter of “fact”, especially when the Supreme Court did not say it. Don’t conflate your belief and opinion with fact and Supreme Court ruling. An attorney, especially an ethical one would know this without being told.
    NED: I think this is self evident from what they did say and the facts of the case.
    AI: No it’s not see above for the reason why.
    NED: The Biskii claims were an application of a general hedging principles to a specific use, which the SC had for 150 years said was the stuff of patents.
    AI: Its just the start. There are conditions and requirements under U.S.C Title 35 that must be met and Court created judicial exception that must be avoided.
    NED The Bilski claims did not claim hedging in the abstract, or math in the abstract.
    AI: That’s merely your opinion, and maybe Bilski’s . But not a legal ruling.
    NED: They simply claimed an application of general principles in an application of mathematics to a specific use. So what was wrong with the Bilski claims?
    AI: The Supreme Court has rightly or wrongly decided such is a judicial exception to statutory subject matter. It has NOTHING to do with so called business methods.
    NED: As I said, probably in response to anon and not in response to you, we really don’t know the answer to this question.
    AI: Then stop acting like YOU do and most important trying to claim as a fact what you only think the Court meant and then inferring business methods were ruled non statutory subject matter.
    NED: It could be that the Supreme Court really agreed with the Stevens concurring opinion that method claims with a business utility should not be the subject matter of patents.
    AI: No it could not. This is only your your unsupported, non legal, fantasy opinion.
    NED: It can also be that the Kennedy majority found no vice in the business utility per se, but found fault in the claims because they did not pass the MOT.
    AI: No it could not. This too is only your your unsupported, non legal, fantasy opinion.

  23. 269

    It could be that Supreme Court really agreed with the Stevens concurring opinion that method claims with a business utility should not be the subject matter of patents.

    No. It cannot be. Count the votes – Stevens did not make it.

    Stop trying to rewrite history.

  24. 268

    AI, I think the question is quite relevant, because if the output of a method is a number, albeit a number having some significance such as the degree of risk, the method claim will not pass the MOT.

    This is the real reason that the claims in Benson, Flook and Bilski failed.  They all failed MOT even though in Bilski they involved physical steps as part of the claim process.

  25. 267

    No, AI, I respond early in the morning, during breaks or during lunch.  Many times I don't even have time to even read my posts to fix the typos.  

    However, I do my best.  

    If you really have a question that I overlooked and is critical to your argument, repeat it.  I do not have time to actually read these threads.  But I do respond to the e-mail from typepad.

  26. 266

    Is a number a claimed invention?

    Is risk a a claimed invention?

    Now next time just answer the original question, and avoid these silly games.

    Better yet, dont answer t all. Go back and address ALL of Anons points.

  27. 265

    AI, I think the reason for our discussion was your and/or some others assertion that BMs were patent eligible without qualification.  I don't believe that that is a correct summary of Bilski, especially given that Supreme Court held the claims in that case to be ineligible.

    Regarding my belief that BMs that fail the MOT not being patent eligible, I believe this is a matter of fact even if the SC did not say so in so many words.  I think this is self evident from what they did say and the facts of the case.  The Biskii claims were an application of a general hedging principles to a specific use, which the SC had for 150 years said was the stuff of patents.  The Bilski claims did not claim hedging in the abstract, or math in the abstract.  They simply claimed an application of general principles in an application of mathematics to a specific use.

    So what was wrong with the Bilski claims?

    As I said, probably in response to anon and not in response to you, we really don't know the answer to this question.  It could be that Supreme Court really agreed with the Stevens concurring opinion that method claims with a business utility should not be the subject matter of patents.  It can also be that the Kennedy majority found no vice in the business utility per se, but found fault in the claims because they did not pass the MOT.  But they could not say that in so many words because they had just ruled that the MOT was not an exclusive test.

    I don't know the right answer.  But I think one can say with some reliability that any method claim that does not pass the MOT, and is directed to a method of doing or conducting business, is probably not patent eligible.

  28. 264

    ” I read them, but do not have the time to respond to all of them. You are getting the better of me here. I apologize.”

    Not acceptable Ned.

    In the time it took to say you do not have time you could have responded.

    In FACT all you seem to have is time!

    You have a dozen or so people all asking you the same or similar questions around the clock and you reply to ALL of them around the clock, yet never actually answer the questions.

    This way you never have to admit you are wrong and can keep your merry go round of shilling going ad infinitum.

    BTW, please do not comment on this post. I give up my time for a response and donate it to Anon.

    Now please go and respond to EVERY POINT Anon has made.

  29. 263

    Well, if you think the Supremes made a mistake in Bilksi so be it. I am certain Bilski would agree with you. But thats a horse of a different color.

    What you need to do now Ned is …

    1. Admit the Supremes did not rule Business Methods as ineligible subject matter.

    2. Apologize for being an obnoxious azz whole for so many months by insisting they did and thus wasting everyones time.

  30. 262

    So?

    If I invent a process and the process is found ineligible that does NOT mean ALL processes are ineligible.

    Furthermore if I invent a process for serving ice cream and the process is found ineligible that does NOT mean ALL processes for serving ice cream are now ineligible.

    Why?

    Each invention and the corresponding claims is judged on its own merits. According to the same conditions and requirements of U.S.C. Title 35 and the Court created judicial exceptions.

    Ned I challenged you to plug any of your arguments into the above and you will immediately see how illogical and irrational they are.

  31. 261

    anon, you do not play games with me.  I was referring to some of the others.

    You actually make substantive arguments.  I read them, but do not have the time to respond to all of them.  You are getting the better of me here.  I apologize.

    But on the S. 18 issue, it is clear that Congress did not want the courts to use its definition of "covered business methods."  Why?  Because they said so.  So the real question is why did they said that here, in S. 18, and not when they passed Section 273 in 1999?  I think the answer is quite obvious:  what happened in Bilski.

    Your turn.

  32. 260

    Ned,

    Respectfully, your post at 12:04 is not an answer in any way, shape, or form.

    Further, your calling of my challenge to you to respond with legal substance “a game” is insulting. Do you intend to mock me, even as I have been polite to you?

    Further, whether or not you respond “with what you think is the right call” is immaterial. In fact, it is your continued judgment not to respond to the legal points being raised that lend credence to Um, no.’s accusations (as well as The Shilling Shall Continue’s).

    And once again, you want to depend on your “feelings” argument on the S.18, when you have not answered several strong legislative canons that hold your proposal stillborn.

    If you do not want to engage in a true legal discussion, just say so. But don’t play the obvious and quite silly games that you are playing. I belive this is the type of behavior that so infuriated Um, no. to begin with. And your running from key issues feeds the mantra of The Shilling Shall Continue.

    It is game playing because you are refusing to answer the critics of your position. I have been very polite (yet firm) in being a critic of your position, even as you slide into calling me names and accusing me of “bootstrapping” and (once again) evading the arguments put to you.

    I have been clear and direct in my positions here and elsewhere. Of course, it is always your choice not to respond, but that choice has obvious consequences. You can duck the questions, but you cannot duck the consequences.

  33. 259

    anon, my refusal to play your games is not playing games.  I read your posts.  I respond with what I think is the right call, even if I do not have time to refute every one of your points.

    Regarding Congress and 273 and S. 18, it is quite obvious that you are bootstrapping.  Start backwards from S. 18.  Why do you think they have the "reservations clause" about the definition.  It really has nothing to do with the PTO.

  34. 258

    Sorry, Ned. I agree with Um, no. (at least in substantial parts). You do play games – quite often – and quite often the same games.

    I have chased you thread after thread to answer simple and straight forward questions which you have refused to answer.

    I have laid out a detailed argument here and all you can do is wave at the argument, proclaim that my “bits” are wrong (without saying why – or providing support for your position) and announce how Congress “must have felt” and “that it is self-evident.” You claim both that “business method patents” could not be defined by either Congress of the US Supreme Court in an effort to outright outlaw them (on at least three occasions), yet you have decided what an appropriate definition is (from Congress) and you have decided that they indeed have been outlawed. I asked for substance to back this up and you give me “feelings” and “it is self evident that Congress ‘felt'”.

    Sorry Ned – that is pure BS and does not pass for legal reasoning. Sorry Ned, those are not real arguments. They are pure conjecture and your policy projected onto others’ motives without any substantive backing.

    I am holding your feet to the fire to supply actual legal reasoning and anything less than that from you is game playing.

    I am asking you to step it up and believe that you can – I am also not accepting any “because I say so” rationales.

  35. 257

    But why were they held to be abstract when everyone can see that the hedging method claimed was an application of the general hedging idea.  Application of ideas has repeatedly been said was the lynchpin of patent eligibility.

    Everyone, but everyone, has commented on the complete lack of rationale in the Kennedy holding.  It was, like Rader's lower court concurrence, devoid of substance.  It was an announcement.  

    But, since the claims were an application of a principle and not the principle itself, contrary to the words of Kennedy and Rader, what are we to really learn from Bilski.  That the Supreme Court is not honest?

    What?

  36. 255

    Um, no.  I do not play games. You do.  Furthermore, you are a liar.  

    Please be so kind as to stop posting to me or about me.  Everything you say is slander and libel.  

  37. 254

    And yet, AI, the Supreme Court held the process claims in Bilski to be ineligible.

    SO WHAT?

    Did they hold them to be ineligible because they were business methods?

    NO!

    They were held to be ineligible because they violated one of the three judiciary set-asides – abstractness.

    Again with the canard that a single exmple rules an entire category.

    Jebus, Ned, stop looking redunkulous.

  38. 253

    Herrre Doktarrr,
    Want a page? I may have already given you this page but I’ll write it again. You might get a hint of what makes me tick. When I was very little I had terrible separation anxiety. Like Linus in Charlie Brown I would attach myself to something. A Rock, A Powder Horn I found, A Gun I was given that I would twirl, many different things. And each time I became attached Lou or Marcella would take it. Each time I had a boyfriend she knew of, when they called She would tell them to get lost. This went on pretty much my whole life. I really think that may have truly made it hard for me to connect. I spent a lot of time by myself just thinking and dreaming. I do believe that is why I fight for what is mine now that I am out from under them. I got hit by a car they took my Money.I married an A@@ he took our SSI.I invent something they just take it!
    The good thing like beauty, or a good voice, or a big nose,you are born with those things. And Engineers are born, not made. Genius are born not made, Poets are born not made. Yes I have lots of hobbies. Lots of them. and that is because i was never able to completely get into one thing because when I did they just TOOK IT! So I am a scatter brain. But that was a learned behavior. So Herrreee Doktarrr mark this page.
    Things not to do to children!

  39. 252

    Read my posts again Ned. You acuse me of what you do. Your reply to AI makes no sense as you appear to accuse him as well.

    All these accusations of others, without cause or justification tell a story of borderline psychosis all right, just not hte story you think is being told.

  40. 251

    You both agree that any disagreement with your opinion of the law is not disagreement, but lying. Such thinking is derranged at best, a mental state exhibited by mentally ill people. This suggests that only one person is involved.

    Ned, your acusations come too late and only appear to once again be a part of your game of “Accuse.”

    For if you had actually read my posts, you would see exactly the opposite from me. I welcome multiple views, and do not treat any view other than mine as a lie. I show where you lie and and where your prevarications with the law must be purposeful. I also notice that you do not deny any of my part of the story of your half-truths, Kantian perspective, and your refusal to adhere to strict honesty in postings.

    And yet you play the games that such as Malcolm play, accusing other people of being “sockpuppets” and mentally ill because they disagress with you. You only left out the Troll word, otherwise we could have exchanged your signature with Malcolm’s.

    I am waiting for you to show the actual incorrect points in this thread to back up what you say. All you have given so far are “feelings” and what Congress “must have” felt. These are your projections and have no backing. Yet you would apply some type of “iron-clad” construction to your paper policy table argument.

    Not good enough, not by a long shot.

  41. 246

    AI, "Deal with it…."

    And you think that somehow I have disagreed with this?

    This is the very point(s) I have been arguing with you for weeks.

    "At least some" may be eligible. "Some." 

    Sent from iPhone

  42. 245

    As I sit here what to offer,
    Is a thought put forth to me.
    Now I’ve no more Jimmy Hoffa,
    So I’ll tell you what it will be,

    I will give you First Edition,
    And it’s signed to you from Me.
    Cause He’s off her Jimmy Hoffa,
    As I blow in Revelry.

  43. 244

    Your comment was dead in the water for hours. It was my comment and substantive follow up that got the ball rolling. I hereby claim any rights to any prize being offered. Or at least a single wish to be granted. Now what should my wish be? Hmmmm.

  44. 242

    Here in the states they are known as the Three Stoooges, with an occasional Shemp. Guess who is Shemp?

  45. 241

    ” why do the Supreme Court hold that the claims and Bilski were not directed to patent eligible subject matter?”

    Math.

    ::CASE CLOSED::

  46. 240

    “They await the lower courts to approve of a non physical claim, so that they can assess that lower courts rationale in a real case.”

    What type of wicked cocktail of straw and red herring is this?!?!?!?!?!?

    Ned all process claims are physical in that they require a series of observable steps.

    If a process is not physically observable then it is purely mental and the Supreme Court has ruled such as abstract ideas, a judicial exception to statutory subject matter.

    So why the he ll would lower courts be in effect approving of purely mental claims and the Supremes waiting for such?

    You are claiming something the Supreme Court did not say and no lower court world have any logical reason to rule in favor of.

  47. 238

    Recently I read an intriguing article arguing that the USPTO should perhaps reinstate the requirement of submitting a prototype with each patent application, with the idea that this requirement (among other things) would contribute to improving the quality of issued patents. Whatever one’s opinion on a specific such requirement, it’s undoubtedly a good idea for a patent applicant to create a prototype, simply as part of the process of invention. The new 3D printers could, in this regard, serve as a real blessing to the next generation of innovators.

  48. 236

    Yeah that was the view of the USPTO, and they won at the CAFC in re Bilski, only to get smack down at SCOTUS.

    “”Respondent Patent Di- rector urges the Court to read §101’s other three patentable catego- ries as confining “process” to a machine or transformation. However, the doctrine of noscitur a sociis is inapplicable here, for §100(b) al- ready explicitly defines “process,” see Burgess v. United States, 553 U. S. 124, 130, and nothing about the section’s inclusion of those other categories suggests that a “process” must be tied to one of them.”

    Process is an independent category like Machines, articles of manufacture and compositions of matter and are patentable as such.

    :: Case Closed. ::

    Nut Case that is!

  49. 235

    Ned no amount of disparagement or innuendo will distract nor change the ruling of the SC Court of the United States and America. Read it and Deal BEACH!

    The invention at issue is claimed to be a “process,” which §100(b) defines as a “proc- ess, art or method, and includes a new use of a known process, ma- chine, manufacture, composition of matter, or material.”

    Finally, the Federal Circuit incorrectly concluded that this Court has endorsed the machine-or-transformation test as the exclusive test. Recent authorities show that the test was never intended to be ex- haustive or exclusive.

    (b) The machine-or-transformation test is not the sole test for pat- ent eligibility under §101.

    (c) Section 101 similarly precludes a reading of the term “process” that would categorically exclude business methods.

  50. 234

    Ned:AI, obviously, you do not care to listen to the advice of your patent attorneys, do you? You are a know-it-all who tells them what the law is, right?”

    AI: I pay thousands of dollars for their advice so you bet I listen to every singe word. And it is not I, but the Supreme Court of the United States which tells us all what the law is. Unlike you WE listen. And my attorneys work with me to make sure my company follows that law, not subvert it. I would NEVER hire what appears to be a shill like you NEVER. In my opinion such actions are a true disservice to patent law.

    If you want to believe or convince others I am, Um No, deranged, mentally ill, or the boogie man for that matter be my guest. Such disparaging attacks and innuendo will not change the ruling by the Court in Bilski that is as follows:

    “The machine-or-transformation test is not the sole test for pat- ent eligibility under §101.”

    “The Court is unaware of any ordinary, contemporary, common meaning of “process” that would require it to be tied to a machine or the transformation of an article.”

    “Respondent Patent Di- rector urges the Court to read §101’s other three patentable catego- ries as confining “process” to a machine or transformation. However, the doctrine of noscitur a sociis is inapplicable here, for §100(b) al- ready explicitly defines “process,” see Burgess v. United States, 553 U. S. 124, 130, and nothing about the section’s inclusion of those other categories suggests that a “process” must be tied to one of them.”

    “Finally, the Federal Circuit incorrectly concluded that this Court has endorsed the machine-or-transformation test as the exclusive test. Recent authorities show that the test was never intended to be ex- haustive or exclusive.”

    “(c) Section 101 similarly precludes a reading of the term “process” that would categorically exclude business methods. The term “method” within §100(b)’s “process” definition, at least as a textual matter and before other consulting other Patent Act limitations and this Court’s precedents, may include at least some methods of doing business. The Court is unaware of any argument that the “ordinary, contemporary, common meaning,” Diehr, supra, at 182, of “method” excludes business methods.”

    DEAL WITH IT BEACH!!!

  51. 233

    AI, you have a weird definition of patentable subject matter that is so unconventional that it is bound to cause confusion.

    Machines, articles of manufacture and compositions of matter are patentable as such. However the same as never been true of methods.

    Sent from iPhone

  52. 232

    “Anon, please read the above. You insist that no one here contends that BMs ARE patent eligible. Well AI does. ”

    AI: Ned, why don’t you ever like to acknowledge everything I have said rather than taking one statement out of context and trying to twist it to support your view? I have said all processes and methods are statutory subject to the conditions and requirements and U.S.C. Tile 35, and the Court created judicial exceptions.

    Ned: But he defines his BMs as BMs that are not abstract, etc., i.e., that are useful applications of abstract ideas per Diehr, which he describes as DCAT test. Now, in principle, I would agree with AI’s definition,”

    AI: Excuse me I said no such thing. Do not put words in my mouth. And the DCAT, which I pronounce D-CAT, is not a definition of business methods but the controlling analysis for 101 Eligible Subject Matter from Diehr and upheld in Bilski at page 14. There is no need IMHO for an additional definition of business methods, other the definition we have now for processes because all statutory methods and processes are subject to the same conditions and requirements.

    The SC was quite clear in it’s opinion as to why they deemed Biiski method as abstract and running a foul of the judicial exceptions. It was nothing more than math in the eyes of the Supremes, whether wrong or right. And the Supremes have decided to call math abstract. So stop trying to make it more than that. Look, Ned, we all know your ( whacko) position, which EVERYONE here has disagreed with and debunked at one time or another. But don’t stoop now trying to change and distort the opinions of others to support your own losing point of view.

  53. 231

    But Congress deferred to the SC

    The SC refused to declare business methods as not patent eligible subject matter.

    Congress has refused to business methods as not patent eligible subject matter.

    All we get from Ned is some whiny excuse about how diffficult it would be to “define” business methods in order to declear them point blank not patent eligible.

    But Ned as God has no such difficulty. Ned as God has not only defined them (and to him, exactly as Congress has defined them), but has ruled that both the SC and Congress “really has” decleared business methods as not patent eligible, but only if veiwed through Ned’s eyes.

    Ned is WAY too full of himself. Ned needs to seriously think of his own posts and prove that Ned cannot be correct.

    There is a reason why both the SC and the Congress has not declared business methods as not patent eligible.

    Quite simple: business methods may be patent eligible and each must be judged on its own accord – JUST LIKE ANY OTHER method claim that may be patent eligible.

    This UNGODLY fascination with business methods is ludicrous.

  54. 230

    AI: "AI: Are you asking if Um No and myself are the same commenter? No, we are not the same. And that you would think I was Um No, is a compliment to me, As Um No is not only eloquent and ethical, he/she has displayed a very sharp and sophisticated legal intellect that obviously befuddles you.No, I am not Um No, or Anon, or anyone else. I am an Actual Inventor, that employs patent attorneys. And while not a patent attorney myself, I do know the law, especially 101, and am more than cable of handling the likes of your banal attempts at intellectual dishonesty any day."
    AI, obviously, you do not care to listen to the advice of your patent attorneys, do you?  You are a know-it-all who tells them what the law is, right?
    Regarding Um, no., I sometimes detect an overlapping style between the two of you that suggests that you two are the same person.  You two like to slap each other on the back a lot.  You both agree that any disagreement with your opinion of the law is not disagreement, but lying.  Such thinking is derranged at best, a mental state exhibited by mentally ill people.  This suggests that only one person is involved.

  55. 229

    Actual Inventor:  "AI: I will save you the trouble. " I Actual Inventor, say, Business methods are patent eligible subject matter."So are manufacturing methods, cooking methods, surgical methods, sewing methods, computer/information processing methods, and ANY other process or method that does not fall into the Court created judicial exceptions."
    Anon, please  read the above.  You insist that no one here contends that BMs ARE patent eligible.  Well AI does.  But he defines his BMs as BMs that are not abstract, etc., i.e., that are useful applications of abstract ideas per Diehr, which he describes as DCAT test.
    Now, in principle, I would agree with AI's definition, but for the fact that one such useful application of was before the SC in Bilski, and it was declared not eligible.  So there is either something wrong with AI's definition, or there is something wrong with Bilski.
    I think that the SC got it wrong, but they are the SC.  We are left to find out why the Bilski claims were declared ineligible, for the SC's reasoning is opaque.  We know they had a reason, but we cannot tell what it was from the opinion itself.  We are only left to speculate.

  56. 228

    AI, "AI: We would not have had an agreement because to this day you insist that since Bilski's method, which most label a business method, was ruled non statutory subject matter, then ALL business methods are non statutory subject matter. What I said above does not support such logic."

    No, I continue to insist that BMs that do not pass the MOT are not patent eligible.   Any BM that passes the MOT is really technological.

    That is why I insist that we define BM so that we agree that we are talking about the same thing.  Unless we do, we use the same words, but are not really talking about the same thing.

  57. 227

    Ned: “If you had said this way back when, we would not have had a discussion. We would have had an agreement.”

    AI: We would not have had an agreement because to this day you insist that since Bilski’s method, which most label a business method, was ruled non statutory subject matter, then ALL business methods are non statutory subject matter. What I said above does not support such logic.

    Ned: I will quote you from a post from this thread where you continue to insist that BMs were patent eligible.

    AI: I will save you the trouble. ” I Actual Inventor, say, Business methods are patent eligible subject matter.”

    So are manufacturing methods, cooking methods, surgical methods, sewing methods, computer/information processing methods, and ANY other process or method that does not fall into the Court created judicial exceptions.

    Ned: Um No? Is he one of your sock puppets.

    AI: Are you asking if Um No and myself are the same commenter? No, we are not the same. And that you would think I was Um No, is a compliment to me, As Um No is not only eloquent and ethical, he/she has displayed a very sharp and sophisticated legal intellect that obviously befuddles you.

    No, I am not Um No, or Anon, or anyone else. I am an Actual Inventor, that employs patent attorneys. And while not a patent attorney myself, I do know the law, especially 101, and am more than cable of handling the likes of your banal attempts at intellectual dishonesty any day.

  58. 226

    Um, no., you continue to elevate your own opinions into law and those that disagree with you into debased liars. This kind of thinking is borderline psychotic.

  59. 225

    Anon, I have responded in another point to the nut of your argument: that Congress could have simply banned BMs if it wanted to.  I have point out why this is all but impossible unless the MOT was deemed exclusive (to distinguish technological BMs from not technological BMs).

    But Congress deferred to the SC which had twice held that the MOT was not the exclusive test.  That is why they did not act.

  60. 224

    Anon, I see your point here.  Good point.  But definition of technological is the problem, is it not.  There is no good definition.  Without it, there is no way to pass a statute that is clear that would ban BMs that were not technological while preserving the eligibility of those that were.

    As I mentioned before, Benson made the same cautionary statement in announcing the MOT.  It was not the exclusive test.  So, Congress was advised by the SC as long ago as 1872 not simply use it to distinguish between patentable and unpatentable BMs.   So, what is a better definition?  

    Let the courts decide.

  61. 222

    Let's focus, anon, to a critical aspect of your thesis:  Congress could have simply banned BMs if it chose to do so.

    How?

    How, given that there was no acceptable definition of business method, as all the cases prior to SSB had been careful to distinguish methods of doing business qua business from methods and apparatus that were directed to the underlying technology that enabled business?  Even in Section 18, they drew this distinction.

    Congress could have enacted the MOT to provide the distinction, but was cautioned not to do so by Benson itself.  

    What we can see from this is that both the SC and Congress have been very careful not to ban business methods in a way that was too broad.  They instead opted to provide defenses: first of prior user rights, and second, of a special procedure (new Section 18).

    So, your underlying premise here is faulty; and from it your ultimate conclusion.  

    The hostility of Congress to SSB is evident.  They have twice now, not once, but twice, have enacted special defenses solely directed to business methods.  They have also declared tax patents unpatentable.  This is not endorsement of SSB, but a declaration of Congressional policy that business methods qua business methods are not patentable subject matter in their view.

  62. 221

    Um, no. you are really full of yourself to suggest the your view of the law is the law and that my view is a lie. Again, you presume that you are right and that I and anyone who agrees with me is wrong. Based on this presumption, you then state that my views and opinions on the law are lies.

    This is way beyond the pale and an insult not only to a child’s intelligence but to any attorney worth his or her salt.

    No, stop whining about not convincing me of the validity of your point of view by describing my disagreement with it as a lie. If you have something worthwhile to say, say it.

  63. 220

    Ned,

    I see the problem that you wrestle with.

    You wrestel with trying to keep you rdogma alive, when you cannot. You are forced to conjure and twist, not only Supreme Court ruliings, but the AIA as well.

    Ned, You need to truthfully and in direct and simple terms come to grips with each of the points tha tI have made. My points are not there for you to deny them. My points are true and accurate. You need to reformulate your dogma to come tro grips with what Bilski and the AIA actually say.

    Return to my post and formualte an answer that treats every element of my post. No mere dismissals allowed. When you force you rslef to lookk at the compelte picture, when you accept those things you must accept, then we can continue our conversation.

  64. 219

    Ned,

    You see a rebuke where none exists. Rather than a rebuke, section 18 is a limitation placed on the Office in its determination of the subset of business method patents (technological) and the fact that the Office does not have substantive rule making power to change what is considered 101 patent eligible – even with the distinction to be made on “technological” – that distiinction is not to nullify anything uner 101, but to merely draw the line of what is reviewable. I made this point above – and is one point you need to actually address. If you were to read the law and the congressional record you would understand this. Lamar Smith himself was explicit that section 18 was not to change the substantive law – as dictated by the Courts. Yet, you would turn this into a chiding of the Courts – this is just not a reasonable position. One does not laud and chide in the same breadth. Read what Lamar Smith has to say on this before your next comment, and you will see that you r position cannot be sustained. You are driving your positon solely from how you want the law to be, and with no true support.

  65. 218

    Congress did not approve of State Street Bank. Not at all.

    Once agin Ned the plain fact is that you are incorrect on this point. If Congress so detested State Street Bank as you suggested, they could have and they would have outlawed business method patents outright.

    The fact that they did not defeats anything you have to say about Cognress’ animus.

    Likewise, in the AIA Congress could also have directly outlawed business method patents, and once again they have not.

    You are trying too hard to read something that just is not there.

    Ned, It’s embarrassing to have to point out to you how badly you are miscontruing the law here, and the “reach” you must employ to overturn a Supreme Court decision embraced by Lamar Smith.

    Go back and slowly and carefully read my point sagain. Do not take any shortcuts in formulatiing a response – do not assume that because you want to be right that you must be right. If there are errors in my factual positions or in my legal logic, explain what the error is (and do so without conclusory handwaving on your part).

    Trust me Ned, I know of what I talk about here and your position is not defensible.

  66. 217

    Ned,

    Your logic as applied is faulty. One very small example is that if, as you say 273 was a “repeal” and not a broadening (which by the way, you have shown no support for the “repeal” stance – one does nto repeal a Supreme Court Ruling by hiding it under a bushel), and support has been shown for the broadening context – both in my post and in other’s supporting posts), then there would have been no need whatsoever for section 18, as there would be no need for a review for something not patent eligible.

    The crux of the matter is that you have not adressed the points that I have made and rely totally on conjecture. You offer no proof or support to substantiate your view. You offer no rationale for violating numerous statutory construction canons.

    We have covered in the past that for all the “expressed hostility” from Congress, Congress could have – and chose not to simply and point blank outlaw business method patents.

    They did not do so.

    They still have not done so.

    Please do a little research on this as I speak from solid facts.

    Please reply with something more than your feelings on this. Please reply with something of substance to back up your position. And please, do not dismiss each of my “little points” without actually showing why the “little points” are false.

    I deserve better from you. I will not accept less from you.

  67. 216

    anon, no I do not.  You're argument had a number of small points that added together allegedly proved your argument.  But each and every one of them is was wrong in some detail so that you ultimate conclusion was unavailing.  The simple facts are self-evident from the sequence of events.  Section 273 was enacted as a defense against STB.  The SC used 273 as some implicit recognition by Congress of BMs were patent eligible.  Congress reacted by repealed 273, and replacing it entirely.  They enacted another special purpose defense against BMs in Section 18 of the AIA, but this time did not repeat the mistake of 273 of not making its meaning clear by expressly excluding the use of the definition of BMs in it as any endorsement by Congress that BMs were patentable in the first place.

    The whole sequence of events is unmistakable and decisive.  Congress expressed hostility to SSB in enacting 273, and continues to express it in new Section 18.  Congress does not side with Rich, or with Rader or with Kennedy on this issue.  Not at all.

  68. 215

    anon, it means the same thing the SC said in Benson:  The "clue" is physicality, but that does not exclude the possibility that some subject matter that is not physical might still be patentable.  The SC just does not know what that might be in the abstract, and is simply unwilling to coin a test hypothetically.  They await the lower courts to approve of a non physical claim, so that they can assess that lower courts rationale in a real case.

  69. 213

    anon, the only problem you have to deal with is that you do not control history.  The arguments of your fellows are preserved in writing, even on this thread.  You cannot deny them.

    It is good that you too recognize that declaring that "not categorically ineligible" does not mean "are eligible."  But, that was the position many of the sock puppets, especially Actual Inventor, long maintained.

  70. 212

    anon, "lied."  Are you joking?  That is what you get from the fact that the Biski majority did not apply existing 101 law correctly, and distorted the meaning of "abstract" in doing so?

    No, anon, they did not lie.  But they were caught on the horns of a dilemma.  They had just held that the MOT was not the exclusive test, so they did not want to rely on this test to declare the Bilski claims unpatentable.  So they adopted the completely nonsensical Rader concurring opinion  instead.  This Rader concurrence simply stated the Bilski claims were abstract, without analysis.  What utter nonsense.  Everyone, but everyone recognizes the Bilski and Rader opinions as being without analytical support.

    Had they applied Benson, Flook and Diehr, and the old Supreme Court cases upon which they relied, they would <b>not</b> have found the Bilski claims unpatentable, unless, that is, the MOT was the exclusive test, because the Bilski claims were a practical application of a general principle which every case considering "principle in the abstract" have said is the requirement for patentability of abstract ideas.

    Do you see the problem they wrestled with? 

  71. 210

    Sorry Ned, You have not addressed all of my points.

    I need you to address them with more than a hand wave and a conclusion.

    You have serious statutory construction issues to overcome, and frankly, I have seen very little from you, other than an “I said so” type of rationale, which just does not go far.

  72. 209

    anon, Section 273 was originally enacted in reaction to State Street Bank, to limit the damage.  However, many have long backed prior user rights in general, and have insisted that any FTF system must provide for them with the removal of the prior invention defense.  Thus congress listened.  They gave the proponents of prior user rights what they long have advocated.  But in doing so, they totally revoked and repealed the prior 273 that provided a very limited right against business methods.  

    What you do not seem to recognize, anon, is that the prior 273 was a defense against business methods only for a reason.  Congress did not approve of State Street Bank.  Not at all.  The SC failed to recognize this fact in Bilksi.  Thus Congress reacted by repealing 273, and enacting a special procedure against business methods in new Section 18.  This time, though, they were careful.  They told the SC in no uncertain terms that they could not use a defense against BMs as a sign of some Congressional endorsement of BMs.  The reaction of Congress was a strong rebuke of the SC majority in Bilski.  A very strong rebuke, I might add.

  73. 207

    AI, "Once the invention is determined to be a process or method, and it is not one of the Court created judicial exceptions, then it's subject to the same conditions and requirement under U.S.C. Title 35, as any of the other categories in 101. Whether it's a called 'business method' or not has no consequence."

    If you had said this way back when, we would not have had a discussion.  We would have had an agreement.

    But, you have to be honest, this is not what you have been saying for the last several years.  If you want, I will quote you from a post from this thread where you continue to insist that BMs were patent eligible.  

    Um No?  Is he one of your sock puppets.  He too had a bad memory, choosing to ignore that I did respond to his points on "inchoate" when they were raised once upon a time.  He too has very "selective" memory.

  74. 206

    OK, Ned, I’ll bite…

    “How many licks to the center of a lollipop :What is the difference between “exclusive” and “all but”?”

    Degree.

    What does “degree” mean? Please explain in legally sustainable terms.

  75. 205

    Let’s see the evidence.

    And by the way, your conclusory statements are not evidence.

    Far as I can tell, Bilski is still good law – including the parts of Bilksi 11 and Bilski 14.

    If you want to overturn a Suprme Court decision, you are going to have to do much better than what you have shown so far.

  76. 204

    Ned,

    Your small point of dispute is a strawman that only you are arguing.

    No one else is arguing that position. Not even AI, whose post above clarifies this very thing.

    Please, I have explained this concept several times now. Every time you post this canard, it is as if you purposefully ignore what I have told you.

    Please stop.

  77. 203

    Ned,

    This question implies that you believe that the Supreme Court Justices lied when they rejected Bilski for being abstract.

    Do you really believe that they lied?

  78. 202

    Ned,

    I have read those itesm with interest, many times over.

    Pulling is correct though – you tend to use such as if they state law.

    They do not.

    May I suggest that you remember why those opinions failed to carry the majority view? This is not a trivial matter, especially as the “concurrence” is so vehemently opposite the actual majority decision.

  79. 201

    Ned,

    This post of yours verges (again) on the half-truth that Um, no. loves to pound you with.

    The important aspect here is to understand the context of the change. That context was to broaden the prior user defense.

    Please address the points made appropriately (in other words, stop ignoring the reality of the situation and making up your own world view).

    btw, L Smith’s quote appears to be a direct quote from Lamar Smith.

  80. 200

    Ned,

    Your post is pure unfounded conjecture.

    Please address the points I have raised – ALL of the points that I have raised.

  81. 199

    “so that once it is determined that the method under discussion is a business method, all one has to do is determine the patentability of the claim under 102/103/112.”

    No Ned, I am not saying that. The correct view is as follows:

    Once the invention is determined to be a process or method, and it is not one of the Court created judicial exceptions, then it’s subject to the same conditions and requirement under U.S.C. Title 35, as any of the other categories in 101. Whether it’s a called ‘business method’ or not has no consequence.

    That is the law as it stands now and of which you lie about. BTW, you have some balls to come back here and continue posting with the same intellectual dishonesty no less, after the ethical scolding Um No gave you. But perhaps you have no choice if you have already cash this weeks/months check?

  82. 195

    Um no, prior to the AIA, the patent statutes did have a definition of "business method" for use in §273. There was no caveat in the former statute that limited its definition for that section. That definition has been removed. It has been repealed. Period.

    In enacting section 18 of the AIA, Congress was careful not to repeat the mistakes it made in not limiting its definition of business method in section 273.  The language it added regarding the lack of use of the definition of "covered business methods" in section 18 was specifically intended to tell the Supreme Court that it did not intend to endorse the patent eligibility of business methods as a category.

  83. 194

    May I suggest that you read the concurring opinion

    May I suggest you understand the difference between concurring opinions (that are actually dissents) and the meaning of a court case?

    You have this odd little habit of taking minority views and trumpeting them around as if they speak to what the law is.

    Do you understand that there is a difference? A rather important difference?

  84. 193

    AI, let me agree with you in principle that the practical application of a business method to real commercial application should pass §101 under any of Benson, Flook and Diehr.  However, such claims in Bilski were held to be not patent eligible. They were said to be abstract, yet anybody can recognize that they were practical application of the general idea of hedging.

    Do you agree?

    And if you agree, why do the Supreme Court hold that the claims and Bilski were not directed to patent eligible subject matter?

  85. 192

    The horse is already out of that barn.

    What is important is that Bilski stands and it not overruled – as you would have it.

    What is important is that you STILL provide no foundation for your assessment of “bootstrapping.”

  86. 191

    Now let's make more things up out of thin air has replied to your comment:“the case law is always made distinctions between business method patents and patents directed to the underlying technology that may have a business utility.”Cite please.
    While this may be generally true, ”Cite please.
    how to distinguish between business methods that are technological and therefore patentable, and those which are not, has not been well-developed. ”Cite please.
    This is why the Supreme Court said in Bilski that they could not adopt a rule of categorical exclusion. To do so, they would have to define a bright line between technological business method patents and non-technological business method patents.”THEY CHOOSE NOT TO"
    May I suggest that you read the concurring opinion by Stevens in Kappos v. Bilski and the concurring opinion by Michel in In re Bilski.

    "Chose not to."  Yeah, and for the reasons stated.

  87. 190

    What is important is that the patent statutes no longer have any definition of "business method" by Congress that could be used by anybody for bootstrapping purposes.  One takes from this is that Congress was offended by the bootstrapping that went on in Bilski, it is now a lot more careful in drafting statutory remedies designed to limit the damage caused by State Street Bank. 

  88. 188

    Actual Inventor, "NED: "When you say that business methods are categorically eligible for patenting, you say that "all" business methods are "eligible" for patenting. That means all, not some.AI: Yes all, subject to the conditions and requirements of U.S.C. Title 35, and the Court created judicial exceptions. That's the law Ned."
    AI, you do know that no one else in your group sides with you on this. I just replied to a post by ANon who insisted that nobody "here" has argued exactly what you just said.
    May I suggest that you continue your conversation with anon who does not agree with you as well. The Supreme Court said in Bilski that business methods were not categorically excluded. What this means is that some hypothetically might be eligible for patenting. But this does not mean that business methods categorically are eligible so that once it is determined that the method under discussion is a business method, all one has to do is determine the patentability of the claim under 102/103/112.

  89. 187

    anon, belated happy Thanksgiving to you.

    However, just a small point of dispute. You may not have argued that BMs are categorically eligible, but many others say they are when they say, “BMs are patent eligible,” without qualification.

    Not categorically excluded means some conceivably might be eligible. “Are eligible,” in contrast, means BMs “are eligible.” That’s what it means. BMs “are eligible,” so, let’s move on to 102/103/112. That is what it means and that is what the people who say these kind of things mean. Otherwise, they would actually say, “Not categorically excluded.”

  90. 186

    Out of the entirety of postings over the holidays, that is the one you chose to comment on?

    Back to the Tower with you IANAE.

  91. 185

    AI: “I have often cited Dr. Lundgrens claims.”

    Those would be the claims upheld under the “useful, concrete, tangible result” test that your BFF Bilski later banished to the dustbin of history?

    The examiner even admitted that Lundgren’s claims passed the useful, concrete, tangible result” test.

    It’s always fun to watch you try to spin Bilski your way. Give it another try.

  92. 184

    Context – that’s a scary word to the anti-business-method crowd.

    Evidence – another scary word.

    The Sotomayor quote is a nice touch to the (paper) table-pounding crowd, although “eyes-closed” is not the same as “squinting.”

    I am looking forward to Ned providing evidence of his so-called rebuke in context of a Supreme Court decision being over-ruled by Congress, especially as we all know the statutory construction canons that any such over-ruling would only be done in explicit language.

    How about it Ned? Perhaps after your meeting with your benefactors you can provide some reasonable substance to your allegations.

    Just don’t expect me to be holding my breadth.

  93. 183

    +1

    I especially like point 2 “In fact, the reverse must be true, as if – as Ned would have it – that the change somehow did outlaw business method patents, then the entire Section 18 portion of the AIA would be meaningless. Basic statutory construction must mean that Ned’s theory is incorrect.

    Nothing like basic statutory construction trapping the shill in an impossibility.

  94. 182

    Wow,

    Maybe I should change my moniker to The Shelling Shall Continue under that barrage.

    Ned may be unavailable for comment, as his benefactors have convened in order to try to come up with some not-so-painfully-obvious-game reply to the decimation of anti-business-method patent agenda.

  95. 180

    Thanks AI,

    At first I was put off by Ned’s not dealing straight with me during our discussion. And if it were that alone, I would have let the whole thing blow over long ago. But his responses to me rang hollow. And then I watched as he played his games with others.

    I watched him play his games with everyone who took an opposing view from his own.

    I watched him laud those who agreed with him, with posts that either showed no ability to comprehend legal theory or eschewed thoughtful consideration in the pursuit of similar ideological goals (those that would embrace a “whatevers” and conflation views of the law to serve their purposes).

    The law deserves better and it deserves lawyers who take their craft and the priorities of service seriously.

    That includes taking their comments on mere blog pages seriously. Ned bringing up the Kantian perspective was especially vexing, given that Kant believed honesty in discussions is critical. The one bringing up that philosophy virtually spitting on that philosophy with every post.

    To me, the outrage is not that Ned believes in a different philosophy, or even that he serves someone with a different philosophy and fights hard for those views. It is not even some of the tactical games being used. It is the lack of respect for honesty that is outrageous. To represent the law as something that it clearly is not that is frustrating. To disengage, rather than admit an inescapable conclusion that is maddening.

    While our clients may want many things, most of us still have intact the sense that we are masters of our own selves.

    In an odd way, the priorities of our service start with a first duty to the legal system, then to ourselves, and only third to our clients. The middle section, while seeming selfish, is meant to protect the first section from the third section.

    Ned has become caught up in the second section, and puts the third section before the first section.

    He either has forgotten what is truly important or has purposefully chosen his path. With all of the posts pointing out his errors, the only reasonable explanation is one of a cognitive and fully aware pursuit of an agenda and a mis-prioritization of service with the known casualties of honesty and integrity.

  96. 179

    And as many times as I have seen and heard of such things done at the Bank for the Military on their way to War or another Country. Well Sarah ( Girl at Banks name)you may get a Feather in your cap for this… But what good is a feather without Fluff.

  97. 178

    I went to the Bank…my Bank the same girl that said I didn’t exist in the system when we opened the Account hemmed and hawed for 1/2 hour with people at her Desk. I had a feeling……….. Yup at 12:30 last Customer closing time. she won’t Notarize them! Claims Policy. Says I can’t Notarize Powers of Atty. So I probably can’t Notarizr theses either LOLOLOL. Then chases me to the door saying come back Monday … I say under my breath.. Yah change in Policy. I then spend another approx. 12 Hours in what’s left of my Life trying to get a Notary and get it Faxed… Having to of course Feed my blind diabetic husband in between my saga. And then what do they do? The usual. Road Blocks. It’s raining. It’s Deer season. Luckily I made it. I Get home, giving them enough time to think I quit for the evening…. And out I go. But this time I GET ER DUNN!

  98. 177

    “There is no rejoicing in Ned’s L_ies, for if he misleads even one person who would otherwise understand patent law with his deceipt, his taint is unforgivable.”

    I take no joy in Neds li_es. I rejoice in the honesty and integrity of commenters like yourself that have a high standard of ethics and regard for patent law. I have learned much and benefited from these threads in spite of Ned’s shameful shilling and deceit.

  99. 176

    There is no rejoicing in Ned’s L_ies, for if he misleads even one person who would otherwise understand patent law with his deceipt, his taint is unforgivable.

    This is not a matter of differences of opinion or even of philosophy. Wise men can differ on both. This is a matter in which purposeful misrepresentation of the law has been undertaken. Ned answers Anon with bold-faced L_ies while seeming to want cordiality, much as he beckoned with me. Yet, he refuses to actually address the points that Anon makes. Even as Anon is polite, Ned refuses to engage. Politeness is not respected by Ned. Unfortunately, I have yet to see what Ned respects, other than merely those who agree with him. That, though, is not respect, but a form of narcisism.

    All Ned can say is “nice try,” yet Anon’s post at 9:41 AM is masterful gamut in its sweep and structure. Ned does not offer reason back – only rhetoric, Ned merely offers that he knows better than anyone, better than the Supreme Court and it is Ned’s Law that should be put in place. Why? Because, that’s why. Who needs proper legal reasoning when laziness and self adulation will do?

    We will certainly not see Ned answer the gamut laid down by Anon, no matter how politely put forth. Ned will surely have some excuse for “not seeing” the points laid out. Those who have dealt with Ned, who have watched him skip town when the going gets tough for his agenda, know full well that only games will be offered back. More games, more deception, and less respect for you and the philosphies that you push. A pity really, because there is room for debate and there is room for multiple philophies. Just not ones that need L_ies to be told in order to be spread.

  100. 175

    The artificial limitation has been removed. Can’t believe it. The Guy looked at me and said I didn’t send it upside down.. Oh but he did. I sure hope it didn’t cost too much! So I sent it again right side up. UNBELIEVABLE!
    So now the Judge won’t have to decide if I am free from an Atty. that never was my Atty. I just can’t believe that he even had to decide. He was NEVER my Atty. And the Alien well now he’s gone too, just in Case!

  101. 174

    Excellent! The silver lining of Ned’s now notorious lies and deception is that it’s brought out the outstanding legal scholarship from Um No, Anon, and the rest in response.

    Actual Inventors everywhere have greatly benefited!

  102. 173

    I post because I’m sad, lonely and I have no friends.

    You guys are the closest things to a friend I have.

  103. 172

    Ned Heller needs to understand that the AIA was never intended to change the substantive law of patent eligibility of business method patents.

    In fact, we pay homage to Bilksi.

    As for the new Section 18, this section only creates a new mechanism for reviewing the validity of business-method patents. It does not alter the substantive law governing the validity of those patents.

  104. 171

    Ned Heller states:

    “Anon, nice try.

    Congress did not amend §273, they replaced it.”

    Again, as in all good l_ies, there is a kernel of truth. Yes, there was a replacement, but the replacement was for broadening, not repeal. Shame once more on Ned Heller for posting with deceptive intent.

    H.R. 1249 states in pertinent part:

    “SEC. 5. DEFENSE TO INFRINGEMENT BASED ON PRIOR COMMERCIAL USE.
    a) IN GENERAL.—Section 273 of title 35, United States Code, is amended to read as follows”

    Now, where I learned to read, amended means to amend. It does not mean “repeal.”

    And while Thomas.gov does use the word “replace” ( at link to thomas.loc.gov ), “replace” does not mean to “repeal” or “nullify”. One replaces a provision with another even when broadening. One must look at the context of this particular section, and the context of the change was a broadening to accompany the First To File change and nowhere is there any inkling that the context was a repeal of what the majority of the Supreme Court Justices stated in Bilksi.

    There are NO statements in the Congressional Record to support an overturning of the Supreme Court Bilski decision – no matter how hard one squints.

    There is simply zero evidence of what you falsely claim Mr. Heller. And this is not a mere matter of “reading” something differently – there is nothing of any plausible or reasonable inference that you can draw on to support your base assertion.

    In fact, the congressional record supports Anon.

    For example, “H.R. 1249 would expand the defense to all patents. However, the bill would prohibit this defense from being asserted against universities and tech-transfer companies.

    from: link to gop.gov

    Stop the disgraceful L_ieing Ned.

    Stop it now.

  105. 170

    Anon, thank you for this well written and well thought out post. When in the past I have been asked to present any claims that did not pass the MOT and were still held statutory, I have often cited Dr. Lundgrens claims. Only to garner a deafening of silence from the likes of Ned, Ianae, and the rest. Same effect goes for Morse claim 5.

    I too concur that the useful arts is not limited to technological arts, as that term would be limiting inventions to the technology of 1700’s when the patent clause was inscribed n the Constitution.

    And as we know the Constitutional mandate was to “promote the progress” of the useful arts, and not freeze it in time.

    If we froze “useful arts” to technology, circa 1700 then the only type of patentable inventions at say an Apple would be the metal shell and class case of the iphone.

    Because that, according to the anti patent crowd, shills, and backward thinkers, is something you can drop on your foot.

    Let alone that such brilliant innovations as swype, something you can neither hold or drop on your foot, are what made the iphone, ipad, and ipod true technological breakthroughs.

    Without these complex processes the 21st century products of companies like Apple would be just glass and steel.

    As we all watch with amazement, as the likes of Ned shamelessly shill for their corporate sponsors, one has to wonder why they are so desperate to disparage if not outright change the law.

    Could it be they don’t want another generation of competition?

    Another couple of kids in their parents garage or dorm room starting up the next big billion dollar company with nothing but ideas , reduced to processes and applied to commerce.

    The type of ideas no one could ever think of before and that employ people, create new jobs for all and make our nation richer and stronger!

    The shills and their corporate sponsors say ..

    Disparage the ideas!

    Attack Actual Inventors!

    and when that fails just out right lie!

    Yes, that’s the way of Ned and his ilk.

    Personally I am so glad to be on the other side where people create, inventors invent, and many good professionals in law, engineering, and marketing help to make dreams become reality!

    God Bless the US Patent System.

    GOD BLESS THE USA!

  106. 169

    Ned: “I have no idea what “applied commerce is.” Define it. ”

    You are being a bit disingenuous. Applied commerce is just like any other applied discipline. Be it applied mathematics, applied engineering, or applied psychology. It’s simply an application of commerce.

    Now, answer the question please.

    is Bilsk’s method indeed a process of applied commerce?

  107. 168

    Tuesday not Wednesday… but no matter. Superman never had a side kick anyway. I can just see Robin like half the rest of the country (me included)flying. NRRRRRNERRR splatttttttt!

  108. 167

    Wenzel screws up big time.. He begs then to give it the US Coast Guard and screws me with lies and Deceit and Police matters and X Marriage and family matters. Him and Tamai both steal my Idea. So the DOD says now it’s ours that’s that!!!!!!!!! Litman now says HEYYYYYYYYYYYYYY wait a minute. I’m not the one who stole it. Let me correct it. They then say we’ll just play keep away. If She doesn’t Fire you with a Notarized Revocation even though you never ever were her Atty. by Jan umpteummp 2012… we’ll consider it a wash… BUT if She does he will sue the government and I will still Sue till I die! GOT IT! that’s why my Atty. won’t speak to me! He knows he is not in control! I GOT IT!
    Oh and by the way Robin.. You know Kents chubby side kick, He had steam coming out of his ears on Wednesday.. too bad they weren’t smoke signals I’d have saved a day!
    How can I fire Mann when he was hired by Litman..

  109. 166

    but which is not subject to being divested involuntarily.

    Where does this come from?

    Doesn’t “within the statutory scheme ” remove this artifical limitation outside of any control of the holder of the inchoate right?

  110. 165

    the case law is always made distinctions between business method patents and patents directed to the underlying technology that may have a business utility.

    Cite please.

    While this may be generally true,

    Cite please.

    how to distinguish between business methods that are technological and therefore patentable, and those which are not, has not been well-developed.

    Cite please.

    This is why the Supreme Court said in Bilski that they could not adopt a rule of categorical exclusion. To do so, they would have to define a bright line between technological business method patents and non-technological business method patents.

    THEY CHOOSE NOT TO.
    So why are you?

    What I contend, is that patents to business methods that are not related to technology, are not patentable subject matter even though the Supreme Court did not categorically exclude them.

    THEY CHOOSE NOT TO.
    So why are you?

    What is the definition of “Ultra Vires”?

    Otherwise, the claims and Bilski would have survived.

    Clearly in this you are incorrect. Just because you do not want to understand WHY you are incorrect, does not change the fact that you ARE incorrect.

    In my opinion, the Bilski claims were not abstract.

    SO what?

    They were a practical application of the abstract hedging idea. As a practical application of an abstract idea, they should have been patentable subject matter under all prior Supreme Court case law. But they were held not to be. I think that is important to understand.

    What is important to understand is that the Court gave a reason that you do not agree with. However, it is not up to you to re-interpret the “actual” reason and then treat your re-interpretation as the actual case law. You are NOT GOD. To do as you attempt is legal error. You have chosen to respond to this error by maligning the people telling you (you have been shooting the messenger).

    It’s time to realize that you have been shooting messengers. It is time to realize just where the Court and you have actually said DIFFERENT things.

    The funny thing is that you may be correct in that the Bilksi application may not have been “abstract”, but may have actually been a practical application of an abstract concept, suitably constrained in a meaningful manner.

    If that were the case, then – by law – Bilski should have been awarded his patent.

    Are you suggesting that you actually agree that according to the law as it should have been applied that Bilski should have had a patent?

    It is indeed quite a different discussion to acknowledge on the one hand that Bilski met the laws as written, but that the Courts decided for other reasons that he should not have a patent.

    If “abstract” is the bogeyman you indicate, AND there is yet another existing and valid legal rationale, then why did the courts NOT use that rationale?

    If instead, that “other rationale” is merely a policy-“wanna-be” rather than an established legal principle, then that may explain the Court’s unwillingness to actually turn the policy into a law (especially the Supreme Court in Bilski which put so much emphasis on the duty of Congress to write law).

    And thus, given the above, does it not make more sense that people arguing on these blogs have made it such an extreme point to emphasize that facts and current law are required to support ANY views, leaving policy-only (table-pounding) positions as merely signs of WANTING to change the law?

    Taking a step back, and contemplating a rationale view, explains much – both about the passion of the arguments and more particularly, the types of the arguments coming from both sides.

    In the end though, Ned, you are still on the side of the argument with the short stick on facts and law. You are on the side of the argument pushing for change with only a policy position. The fact that you do not recognize this, or even worse, recognize but do not acknowledge this, is pathetic.

    You are trying to claim legal points that you cannot.

    And that is never a good way to hold a legal discussion with others that know the law just as well as – if not more so – than you do.

    Trying to blow smoke when the other side calls out your blowing smoke is one thing. To keep on doing so after you have been called out is not only not effective, it is counterproductive.

    Those paying you to shill are fully aware of this and demand a better job from you.

  111. 164

    To buttress Congress’s attitude about the bootstrapping that took place regarding §273 that occurred in the Bilski case

    Cite please

  112. 163

    I think the point of Anon’s post “which adds nothing to the discussion” is the point that should be answered MM.

    Try it in either short or long format, just try to stay on point, not move any goal posts or introduce any strawmen.

    And if Anon is in the psych-ward, he is only there visiting you. You should try to treat your visitors with a little more kindness.

  113. 162

    Is there any category of method patents that are categorically patent eligible?” – No.

    Does this mean that any method patent, being identifiable as belonging to a particular category should be treated just as any other method patent, being identifiable as belonging to any other particular category?

  114. 161

    Ned,

    A minority of two NEVER speaks for the court.

    You need to understand some basic legal theory.

  115. 160

    “replaced,” “repealed”

    Cite please.

    Section 18 – non-use to a 101 argument – applies to the Section 18, not to any other section.

    Go back to school Ned – your statutory construction is pitiful.

  116. 158

    Sorry Anon,

    Ned is a Coward and will not answer your points.

    Beside, you have laid them out too logically and any attempt by Ned to answer will involve him in getting in trouble with his sponsors again.

  117. 157

    Ned,

    You missed the points in Anon’s post.

    Try again (and include all the pertinent points).

    Otherwise, you rant is just that – a rant.

  118. 156

    Ned that response to Um No was notoriously weak.

    The only logical conclusion for you not caring that your supposedly “real name” is viewed as standing for no more than lies, trickery, and intellectual dishonesty is that that is what you are being paid to do.

    I mean it’s, not like you are going to come to my firm looking for a patent attorney job.

    Not after what you have done to yourself on this blog.

    And why would you when you are already working and being paid .

    So I get it.

    It appears you have sold out and have nothing to lose and everything to gain.

    The sad thing is it does a real disservice to this blog and the patent community at large.

  119. 155

    why do you bother posting?

    LOL. You want the short answer, sockie? Or do you want the ten paragraph treatise in 100% pure looneytunes, escaped-from-the-psych-ward language that is apparently your native tongue?

  120. 154

    Because MM, Malcolm Mooney is a jealous Troll.

    Back in the day he was the “only” troll and on any given day could have 100 commenters replying just to him in a thread.

    Then came 6, who usurped his position somewhat, with his court jester antics. But like a big dog that learns to accept a new puppy he eventually made friends with 6 and learned to share the spotlight.

    Now comes along Ned Heller, who not only takes over the spotlight with his inane posts but is obviously getting PAID to do it.

    Leaving poor Mooney alone with his drawer of old sock puppets and no one to act out for.

  121. 153

    You are the one that lied about me and when called on it responded, “Who cares…..”

    That’s not non sense, and it’s certainly not an example of integrity.

  122. 151

    NED: “When you say that business methods are categorically eligible for patenting, you say that “all” business methods are “eligible” for patenting. That means all, not some.

    AI: Yes all, subject to the conditions and requirements of U.S.C. Title 35, and the Court created judicial exceptions. That’s the law Ned.

    NED: “When you say that if a claim “purports” to be a business method claim, is held to be not that patent eligible, you say, “Well, that claim was not a business method.”

    AI: No, not true. The problem you have stems from you willful inability to accept that a so called “business” method is just a method or process like any other method or process, even if the inventor chooses to apply it towards commerce, which 99.9% of all inventors do so choose. However, no matter what the method or process is applied to, it still rises and falls on its own merits and is subject to the conditions and requirements of U.S.C. Title 35, and the Court created judicial exceptions.

    NED: “The absurdity of your position becomes clear, and why you and your fellow sock puppets try so hard to say that the claims in the Bilski case were not business methods, for after all, they were declared not to be patent eligible.”

    AI: Your above conclusion is not only unsupported by the facts it’s unintelligible.

  123. 148

    Anon, the only thing reversed by the SC was the "exclusive" nature of the MOT.  Otherwise the judgment was affirmed.  My post, I thought, made this clear.

  124. 147

    Anon, nice try.

    Congress did not amend §273, they replaced it. The replacement has no definition of business method within it. Whatever bootstrapping congressional endorsement theory one may have had from the prior §273, that bootstrapping argument was laid to rest when Congress essentially repealed the prior § 273.

    To buttress Congress’s attitude about the bootstrapping that took place regarding §273 that occurred in the Bilski case, they expressly stated in section 18 of the AIA that the definition of “covered business method” therein included was not to be used as a definition in court for section 101 purposes. This cannot be taken in any other sense was a total rebuke of the bootstrapping that occurred in the Bilski case.

    Regarding “technological.” I agree that there is no good definition of what that means. I think it includes passing the MOT, but I would not exclude other subject matter as being technological that did not pass MOT. We await the PTOs definition. This hot potato is in their bailiwick now.

  125. 146

    Actually Ned, it is the same thing.

    Pay attention to which words are being used where in the comparison and please note (as I have discussed many times) the difference between “categorically” and “as a category.”

    Then provide a simple answer to this question:

    Is there any category of method patents that are categorically patent eligible?

    It is time to stop kicking up dust. It is time to shut off the smoke machine and put away the mirrors.

  126. 145

    Um no, that you and others disgree with me is true. But your assumption that you are right and I am wrong and therefor that anything I say is a lie is just a bit much.

    Imagine yourself on a court and you disagreed with another judge about the holding of a case. You disagree. He is entitled to his opinion. You are entitled to yours. His opinion in opposition to your opinion is not a lie.

    Regarding “inchoate,” we continued to disagree on what this means. I believe that it means a right that is not yet perfected, but which is not subject to being divested involuntarily. If the holder of the inchoate right has acted within the statutory scheme to perfect his rights, he cannot be divested of those rights.

    What is your definition?

  127. 144

    at least one other judge out of the nine should say something.

    They do say something Ned. They say something by not signing up to that opinion.

    It really is as simple as that. If an opinion is actually agreed to by all, it gets “signed up to” by all and then that opinion obtains the force of law (or at least moves to be persuaive dicta). Minority views do not enjoy that same distinction, and the point blank reason is that such minority views have only been able to garner the level of signatures that they have garnered.

    To treat this any differently would be to make a mockery of Supreme Court decisions and to allow any minorioty view to have an equal power with those opinions that did indeed garner a majority “sign-up.”

    We both know that such legal reasoning is completely absurd.

  128. 143

    Ned,

    Even I can see that is not the topic of the post.

    Everyone here is discussing the substantive rationale – please do not play silly games on the turn of the word “judgment” when everyone knows the reason for that judgment was quashed.

    A post like this from you is an example of what I mean concerning posts that lower your credibility. It makes it look like you only want to play word games and like you do not want to discuss actual substantive issues.

    I personally think that such is below you.

  129. 142

    So the immediate answer, Ned, is NO, it is not OK to use your flawed definition.

    Answer the points I raised and then we can discuss.

  130. 140

    This is nonsense.

    Our posts crossed in transit, and I am sad to see that Ned is not responding in a thoughtful (or fully truthful) manner.

    I see the familiar misrepresentation of “When you say that business methods are categorically eligible for patenting, you say that “all” business methods are “eligible” for patenting.

    Nothing could be further from the truth.

    Ned, this has been explained to you by many people – including me. No one is saying that business methods are “categorically” eligible. Quite in act, there is no single category of patent eligible material that is evercategorically” eligible. I have explained this to you inthe past both carefully and politely – there is no reason whatsoever for the false canard of the argument to be raised yet again.

    No one but you has ever said “that.” I have shown many times now that your game of twisting the words to use “categorically” rather than “as a category” is a false argument, a strawman and a red herring.

    It serves no purpose to try (once again) to kick up that dust cloud. All anyone has ever said is that business method patents are not categorically excluded from being patent eligible, and as such, each claim must be judged on its own merits. This is true of any type of other category of method claims that you want to discuss (and is true of medical method claims which has been the prototypical example). You for some reason can readily see the “absurdity” of your logic in the medical method category, yet you simply clench your eyes tight when it comes to the business method category.

    There is no reasonable explanation for your position and you refusal to see the logic that has been carefully (and politely) shown to you. The only explanation is that you refuse to understand. The only explanantion is that you do not want to understand.

    And while no one has the power to make you change your mind, people can (and do) point out to you the absurdity of your legal position and people can (and do) challenge you to defend that absurd logical position.

    Try to remember that your answer is evaluated by rational people who can see the games that you are playing and recognize when you are kicking up dust and when you are not providing substantive responses.

    It would do far more for your credibility to simply acknowledge those arguments that you are not at liberty to discuss (and you do not even have to say why you are not discussing them). But the pretensions of “being too busy” or “missing the arguments” simply are not believable, and only hurt the credibility of what you want to say.

    BTW, happy Thanksgiving!

  131. 138

    “This is the first time that I have EVER seen anyone indicate that the Supreme Court Bilski decision affirmed the CAFC decision.”

    From Bilski:

    “It may be that the Court of Appeals thought it needed to make the machine-or-transformation test exclusive precisely because its case law had not adequately identified less extreme means of restricting business method patents, including (but not limited to) application of our opinions in Benson, Flook, and Diehr. In disapproving an exclusive machine-or-transformation test, we by no means foreclose the Federal Circuit’s development of other limiting criteria that further the purposes of the Patent Act and are not inconsistent with its text.

    The judgment of the Court of Appeals is affirmed.”

  132. 137

    Anon, "
    your definition of business method patents is flawed."  

    My definition? Actually it is nearly 100% congruent with all prior case law on this topic and with the congressional definition of covered business method in the AIA.  

    If there is any ambiguity, I will simply adopte all existing case law and the AIA definition as my definition for the future just to avoid confusion.  OK?

  133. 136

    The point in this Ned, is that your definition of business method patents is flawed.

    I think your admission here that the case law has yet to be developed should be enough to make you stop using your flawed definition of business method patents.

    I also look forward to your comments on the other substantive points raised in posts today and yesterday.

  134. 134

    Sign up?

    What a joke?  

    If a Justice says that the court as a whole believes X, and the court as a whole does not believe X, at least one other judge out of the nine should say something. Do you think that they would not is utterly ridiculous.

  135. 133

    "
    The Majority EXPRESSLY (See Bilksi 11) held that the category of business method patents were eligible for patenting. "

    The fact that you actually believe this is amazing. Why don't you go read what they actually said. They said that business methods were not categorically excluded. That is not the same thing at all.

  136. 132

    I agree that this posts devastates Ned’s “logical” legal position.

    Let’s see if Ned can reply in a thoughtful manner.

  137. 130

    "
    A category is considered patent eligible, while claims that purport to be within that category can be STILL held to NOT be patent eligible."

    This is nonsense.  

    When you say that business methods are categorically eligible for patenting, you say that "all" business methods are "eligible" for patenting.  That means all, not some.

    When you say that if a claim "purports" to be a business method claim, is held to be not that patent eligible, you say, "Well, that claim was not a business method.

    The absurdity of your position becomes clear, and why you and your fellow sock puppets try so hard to say that the claims in the Bilski case were not business methods, for after all, they were declared not to be patent eligible.

     

  138. 129

    "
    Or in other words, business method patents include both technological business method patents and non-technological business method patents. "

    The case law has always made a distinction between unpatentable business methods that are not tied to the underlying technology that implements them. I have always made this this distinction as well. What I label "business method," is the kind of business method that is not directed to the underlying technology for implementing business methods, e.g., a barcode on a check that identifies an issuing bank.

    I have repeatedly said and say here again that the reason that Bilski could not categorically exclude the kind of business methods that were not tied to technology is that there was no adequate definition of business methods that were limited to the kind of business method that was not tied to technology. That case law has yet to be developed.

  139. 125

    I agree, whole truth, that the statute does imply that there are technological business method patents. But, the case law is always made distinctions between business method patents and patents directed to the underlying technology that may have a business utility.

    While this may be generally true, how to distinguish between business methods that are technological and therefore patentable, and those which are not, has not been well-developed. This is why the Supreme Court said in Bilski that they could not adopt a rule of categorical exclusion. To do so, they would have to define a bright line between technological business method patents and non-technological business method patents.

    Now, so that we do not misunderstand each other, I have never contented and do not contend that patents to technology that may have a business utility are not patentable subject matter. What I contend, is that patents to business methods that are not related to technology, are not patentable subject matter even though the Supreme Court did not categorically exclude them. Otherwise, the claims and Bilski would have survived. In my opinion, the Bilski claims were not abstract. They were a practical application of the abstract hedging idea. As a practical application of an abstract idea, they should have been patentable subject matter under all prior Supreme Court case law. But they were held not to be. I think that is important to understand.

  140. 122

    I guess a good question on this Section 18 of the AIA is whether or not this overrules Ex parte Lundgren:

    From link to patentlaw.typepad.com

    In a landmark decision, the Board of Patent Appeals and Interferences has issued a precedential opinion eliminating the Patent Office procedure of rejecting patents under 35 U.S.C. § 101 as outside of the “technological arts”

    Our determination is that there is currently no judicially recognized separate “technological arts” test to determine patent eligible subject matter under § 101. We decline to create one. Therefore, it is apparent that the examiner’s rejection can not be sustained.” (emphasis added).

    I would say “no” and here is why:

    I think the following are fair representations:

    1) The state of law prior to AIA is that there was no recognized separate “technological arts” test – judicial or legislative. This can be broadly read to mean that “technological arts” was not synonymous with “useful arts.”

    2) The state of law after AIA introduces a path to challenge a subset of busines method patents (non-technological business method patents) under section 18. “Challenge” is not the same as “dis-allow.”

    3) Section 18 explicitly states that the introduction of that section is not meant to change what is considered 101 eligible subject matter. Therefore “useful arts” must still not be synonymouos with “technological arts.”

    4) Section 101 of the patent act has not been changed with AIA.

    5) Section 273 of the patent act “Defense to infringement based on prior commercial use” has been broadened to include non-business method patents,…

    …and in truth conflates patent eligible subject matter classes by including the phrase “or corresponding apparatus” in its definition of method. Does this conflation now allow the courts to view “methods” as rightfully intermingled with “corresponding apparatus”? (One can make a colorful argument that this single line of the law recognizes the validity of Beauregard claims as immune from any cross-101 subject matter category argument). – A whole new and separate line of thought that merits its own discussion!

    But back to the current discussion:

    First off, I think that Ned’s attempted construction of Section 273 to somehow change the law of 101 has no merit. Statutory construction is quite clear that elephants are not hidden in mouse holes and while Bilski does use the prior Section 273 as part of its reasoning to hold that business method patents are patent eligible, such is not the only reasoning put forth by the Court.

    Second, the words of the AIA in the new 273 itself does not lend to a new exclusion: “with respect to subject matter consisting of a process, or consisting of a machine, manufacture, or composition of matter used in a manufacturing or other commercial process,“(emphasis added) – since commercial process is retained, it cannot be said that this section changes the law of 101 to wipe out any type of “commercial process.” There is simply zero indication in the Congressional Record to support the view put forth by Ned that 273 was changed to outlaw business method patents.

    In fact, the reverse must be true, as if – as Ned would have it – that the change somehow did outlaw business method patents, then the entire Section 18 portion of the AIA would be meaningless. Basic statutory construction must mean that Ned’s theory is incorrect.

    Third, the law of 101 (the place where it would be most logical if Congress intended to overrule the Bilski decision to allow business method patents as eligible subject matter) was not changed. Statutory construction would have indicated that if Congress had intended to overrule a Supreme Court case, they would have done so explicitly. There is no secion of the AIA that can reasonably be held to explicitly overrule the Bilski case.

    Fourth, the new Section 18 merely calls for a review, and certainly does not call for a ban on business method patents – even on the subset of business method patents that are non-technological – the “covered subset. Since there is no explicit legislative change to what is covered under 101, the AIA has failed to rule out business method patents as patent eligible subject matter.

    But here is where more confusion from the poorly written AIA comes in.

    The new Section 18 does now make a distinction on patents – and not just method patents – depending on an undefined term “technological.” Congress punts on the responsibility for defining this term and gives that responsibility to the Office.

    But this is not a grant of authority of substantive nature to determine a 101 question! – Congress clearly kept that off-limits with Subsection (e) of Section 18.

    So on the one hand, Congress introduces a distinction of “technological” and on the other prevents that introduction from having any 101 effect.

    How does this affect Ex parte Lundgren?

    I believe that Ex parte Lundgren remains intact on the 101 question because the section that introduces a distinction of “technological” into the law explicitly excludes that section from making any change to the law of 101. Given that no other change in the AIA limits section 101 coverage, there is no basis to conclude that Section 18 outlaws any business method patents of any kind – covered business mehtod patents or non-covered business method patents.

    It is also curious that Section 18 is written with a sunset provision, indicating a limited window of applicability for a limited subset of an admittedly poorly defined group of contested patent category, with an express provision that the Section CANNOT change what is meant to be covered under Section 101 of the law. If a fundamental change to such an important section of patent law as 101 was meant to be changed, certainly a sunset provision of challenge would not be the vehicle for doing so.

    SO what we have from Congress is a period of time that others (read that as the Office, applicants and the courts) can haggle over “covered business method patents,” but must haggle with the hamstrung no-change-to-101 provision. In essence, Congress by not changing 101 directly has rigged the game to ensure that all business method subsets still are covered under 101, but that a subset of business method patents – the “covered” busisness method patents are allowed yet another bite at the apple to being challenged post-grant. But with no change to 101, these challenges still fall to other sections of the law.

    All reasoned responses to this post are welcomed.

  141. 121

    The good thing is I get it, all of it. From one side to the other. Guerwood was paid handsomely. And one side of the Family went one way and the other stayed in the Syrup. And to control my assets was all about lies and deceit. So what’s it gonna be? I will not stand by and watch the Canadian side and the E of NC control one side. While the others take the other side and split me in half, while Larceny is taking place.
    This is my life, my assets and my property. You have all managed to destroy all of it. And I will not stand by while you destroy the rest.
    I am an American no matter what. And that is where I chose to have the mess corrected. Are you going to correct it? Or am I going to have it corrected in the Courts? I wouldn’t give any one related to or on Guerwood’s side the right time of day… No matter who you are. So that being said it makes me still stuck in the middle because of the DOD and the connection. But you not getting it! This is My property, My case, My middle.
    So what’s it going to be? Do we discuss options?
    Tha damage has already been done. But the outcome can be less damaging.
    And if you Canadians think I give a Putootie think again. Where were you when I was growing up? Enough said!

  142. 120

    Thanks “The ABSURDITY That is Ned Heller ” I just dont think anyone can explain it more rationally and logically than this!

    Yet I am willing to bet Ned will either ignore it or simply reply with some type of fallacious logic.

  143. 119

    This looks like another comment that Ned will conveniently not see or have time to respond too. At least not with anything logical and non fallacious.

    Anyway thanks The WHOLE Truth for taking time to post the facts.

    Ned must be suffering from magical thinking if he believes he can post lies and no one will actually read and check the facts themselves.

  144. 118

    “So what is your point?”

    This is the point when Ned does not reply any further. At least not with anything logical and on point.

  145. 117

    You should not have ever tried to get involved in the first place. Now try and stick to something “think” you know about.

  146. 116

    I can only suppose that Ned is thankful for the continued ability to post without accountability.

    Ned Heller is at it again.

    He states “ As to me, you can jump up and down all day, point fingers, etc., but you cannot cite even one instance where you think I did not tell the truth. All this came about when I objected to Kappos deliberately lying in support of the AIA while it was still pending. This quickly went off tangent, and you guys began calling me a liar because I suggested that those who hid behind fake names did so for the purpose of lying. In defense of your reputations, and to divert attention, you began to accuse me of your own crimes. Then you repeated it. And have kept repeating it. Ad infinitum. Ad nauseum.

    One instance where people think that you do not tell the truth? How about every time you misrepresent the law, misconstrue what is in Bilski or Alappat or the AIA? How about every time you shill for your agenda, and ignore those that make points against what you say, and then you turn around and say “I didn’t see that” or “I must have been too busy” – all the while you post the same misrepresentations, as you put it, Ad infinitum. Ad nauseum.

    One instance Ned? Can you honestly say that you have gone even one month this year without purposefully misstating case law or purposefully misconstruing statutory construction to fit your agenda? On top of that, many have pressed you and tried to hold you accountable, even affording you politeness as you denigrated them (Anon comes to mind). Yet, you have shamelessly played your tricks of dishonesty and your other games, asking for clear questions, and when those are given, asking for true legal citations, and when those are given, NOT answering. When others ask simple questions you do not answer and merely accuse and play your A_nger game.

    One instance Ned? Choose any thread this year that has over one hundred posts and I guarantee that you will have had at least one such instance, on every thread that has covered a topic that youshill on.

    One instance Ned? How about the time you violated my trust in our discussion of what inchoate meant in terms of patent law. Later you offered an olive branch. I considered his “olive branch”, but then saw how false it was, as you refused to rejoin the discussion on inchoate and my invitation to a track meet discussion. Always you have time for your agenda, Never you have time for those that point out flaws in that agenda. And as what he did to me, he did to many others. Time and again, Ned plays his games. I rejected his olive branch because there was no honesty in his offer, because Ned has no honesty to offer.

    A little historical perspective for unspinning of Ned’s L_ies.

    Like all good L_ies, there is a kernel of truth buried somewhere in the mix. The honesty in posting theme did originate in discussion about what level of honesty Kappos should or should not be held to – however, the tarring of Ned came when someone suggested that as posters here on this blog, we too should be held accountable to only post the truth and not make misstatements or knowingly incorrect positions of law, or otherwise act in a deceptive manner. I think this was A New Light, one of the first posters I know of that disowned Ned for his tactics.

    Ned refused to commit to such a standard. Instead, he tried to divert and “dazzle” with a philosophical dissertation on Kantian imperatives.

    When another poster refuted Ned’s position and pointed out that one of the key cornerstones of the a Kantian discussion was pure honesty, Ned disappeared from the discussion – no doubt, drawn to other important matters, like preparing to tell his l_ies on another thread.

    In refusing to agree to what is an acceptable norm, Ned all but indicated that his action in mere blogging does not rise to that level of care and straight forward honesty that underlies not only the Kantian perspective, but any gentlemanly discussion and thus clearly indicated that if he were to be held to that level, his “paid” work on the blog would necessarily come to an end.

    The whole side discussion of “hiding behind fake names” was only a tangent to the posting with honesty thread. Even here Ned prevaricates to attempt to cover his tracks. I think it was Publius that took Ned to task on that subject, but as I said – trying now as Ned does to paint that as the prime reason for so many attacking him is a red herring, a false trial from the purveyor of many falsehoods. After all, to Ned, this is a mere blog, and falsehoods are perfectly acceptable on such a vehicle and we attorneys do not need to be concerned with representing the law honestly on such blogs.

  147. 115

    The rest of the justices did not disagree with that statement.

    No.

    The rest of the justices did not SIGN UP with that statement.

    And THAT makes all the difference.

  148. 114

    They (singularly) were held to be ineligible for patenting.

    The Majority EXPRESSLY (See Bilksi 11) held that the category of business method patents were eligible for patenting.

    See above, below, and everywhere for examples of your fallacious logic being exposed for the ABSURDITY that it is.

  149. 112

    If Bilski held that business methods were patent eligible, the claims in that case would have been held patent eligible.

    No.

    This is a FALSE application of logic, trying to make a singular example dictate the entirety of a category.

    This has been explained many times. A category is considered patent eligible, while claims that purport to be within that category can be STILL held to NOT be patent eligible.

    The one does not have anything to do with the other. This is the lesson from the Supreme Court Majority at Bilski 11.

    This is also the genesis of the example provided (again and again) that if the claims of Prometheus (a singular example of medical method claims) are held to be non-patent eligible, ALL medical methods would be held non-patent eligible.

    The ABSURDITY of this logic is inescapable. Yet Ned persists.

  150. 111

    Subset of what?

    Read the statute.

    Sec. 18. Transitional program for covered business method patents.”

    This means that there are uncovered business method patents outside of the Sec. 18 Transitional Program.

    When YOU then define a term that is NOT inclusive of ALL business method patents, your defined term is incorrect on its face.

    The limited subset of business method patents that are defined to be covered business method patents “means a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a “financial product or service, except that the term does not include patents for technological inventions.

    Or in other words, business method patents include both technological business method patents and non-technological business method patents.

  151. 110

    All of those fake charges that put me in Bankruptcy… tsk tsk tsk. And all the time I had Money. This is just too much. you took my life and then you made up all these things about me and you don’t even know me. You know so little in fact you just let Marcella take me. and then you Took ME OUT! And all the time you knew that the Police had a secret. A secret they used over and over because if it came out… so would everything else! Well I have news for you this not only Larceny, it is a conspiracy full of SLANDER!

  152. 109

    So with the first one (Patent) I have here We know is not real because of the way it is numbered. and we know the second one is open. So who the F has my real Patents with the MPEP Section 310 in it. And I know who has my money. So I guess I just know who has my Patents! 1 and 2..

  153. 108

    Alappat was en banc and is controlling. Ultrammercial was not en bank and is not controlling.

    So what is your point?

    Both Alappat and Ultramerical are in sync with each other and both defeat your view of the patent world.

  154. 107

    “Who cares if you were involved.”

    A person of integrity.

    Obviously, you are no such person.

  155. 106

    Yes it is .

    No, it was not.

    There is no definitive answer.

    There are only methods and processes for a wide range of subject matter.

    Oh….and you are loopy.

  156. 104

    You completely misunderstand my point, or intentionally misunderstand my point.

    What Breyer said in effect was that all nine justices agreed on the following: that the MOT was all but an exclusive test. The rest of the justices did not disagree with that statement.

    Sent from iPhone

  157. 103

    Absurdity, anyone who continues to insist that Bilski held that business methods were patent eligible is the one who needs to see a doctor.  The claims before it in that case were business methods. They were held to be ineligible for patenting.

    Sent from iPhone

  158. 98

    Actual inventor, the point of this question is really really important. If you understand what the subject matter of Alappat was, and what it was they were discussing, it would help you enormously in understanding what is patentable subject matter and what is not.

    Sent from iPhone

  159. 97

    Ned,

    “Your definition” only applies to a SUBSET and is NOT the definition that you pretend it to be.

    This has been explained to you, as well as shown per the accepted canons of Statutory Construction.

    STOP L_IEING.

  160. 96

    even when the rest of the justices did not say anything to the contrary or objected to the statements by Justice Breyer?

    Ned – do you understand that the lack of a Justice signing up to an opinion indicates that the Justice does not sign up to that opinion?

    Before you go any further, you must understand that. A minority opinion, and a small one at that at two people which states that “everyone thinks as us” CANNOT mean that “everyone thinks as us” and ONLY means that the unfortunate two thinks that “everyone thinks as us.”

    Your use of the phrase “that they were lying” thus implies a far greater weight to an opinion than that opinion can carry. What that twp person part of Bilski does carry, and this is ONLY what it carries, is that it was the OPINION of those two Justices that all nine had a consensus view on what those two said.

    CLEARLY, lacking the actual sign-up from the other seven says FAR MORE about that position than the minority of two did; and it tells you that the minority of two is ACTUALLY out of touch with the rest of the Court.

    As are you.

  161. 95

    Actual inventor, there is nothing wacky about my definition of business method, after all, it was adopted by Congress. Regarding your definition, we have yet to hear it.

    Sent from iPhone

  162. 93

    They said that that was the consensus view of all nine justices. Do You presume that they were lying, even when the rest of the justices did not say anything to the contrary or objected to the statements by Justice Breyer?

    Sent from iPhone

  163. 92

    So as a result for the longest time I thought I was in relatively good Hands. Giving them plenty of time to do me in! So what is that called? Is pulling that out of the File only to wave it in the face of the Court an Omission? But then chances are you used it to benefit your mission. What is it called now.. Yah I get an “Omission Mission!” Sort of like Kryptonite turned back at yah baby… whats Shakin Baby!

  164. 91

    So even though you even told me He let me go… You lied! Talked me into sending Him a Fax stating he was bad for doing so! You still lied and still none of you would let me go anyway… Wow. Did you show that fax to the Court… LOOOOLLLOOOLLOLOLOOLLLLLL. What’s shakin Baby?

  165. 90

    I suppose I should stop expecting any more of you.”

    It’s a good thing that we expect very little of you IANAE. That way, when you miss even those low expectations, the fall from the pedestal will not hurt so much.

  166. 89

    The MOT has been castrated and rendered a mere clue, therefore it can’t becoextensive with ANY legal test.

    So you keep saying, but when I ask time and again “what practical difference has it made?” all I get is your usual empty bluster.

    I suppose I should stop expecting any more of you.

  167. 88

    want to divert attention into some absurdity.

    Yes, diverting attention to Ned’s legal logic of one example of a method proving an entire class of methods as patent ineligible is indeed absurdity. Well, actually, it is Ned’s legal logic that is the absurdity.

    The wanting to divert attention, though, is to point out that yet, once again, it is you Ned that is descending to that level of absurdity.

    After all, it is your logic that is simply being applied to a different grouping of method patents.

    As for any type of “defintions” would you accept the United States Patent and Trademark classification system definitions? After all, it is those definitions that are applied in reality day after day.

    Also, are you going to simply evade the blatant and improper statutory construction issue yet again? These were laid out quite clearly on another thread that you were fully engaged in (so no excuses about you being too busy, caring for your sick mother, burying your granmother for the sixth time, or the dog ate your homework).

    Please do not insult the intelligence of those whom you are trying to convince that your view of the law is what should be accepted. Please try to actually use sound logic instead. Otherwise, you continue to look the fool (Umbrage game in 4… 3… 2…)

  168. 87

    It is literally impossible to conclude that the SC held that BM were patent eligible.

    Quite the reverse – See Bilksi 11

    For all the preaching you do on how you answer “direct questions”, the amount of evasion you offer on this simple point is bewildering! You have been asked to explain the Court’s reasoning found at Bilski 11 which explicates the opposite of your “one example proves the whole category inelegible” mantra for quite literally thousands of posts to this point. There is no way to reconcile your shilling with what was actually said by the Court at Bilski 11. None. THAT is what is literally impossible.

  169. 86

    What they said it means

    How is this an answer? This answer supports Supreme Guidance, not Ned Heller.

    Ned, are you conceding this point?

  170. 85

    Ned,

    Given that Ultramercial is law, the better question is why are you asking your question at Nov 21, 2011 7:40 PM?

    E Q U I V A L E N T S

  171. 84

    Excuse me but I did no such thing and was not involved is any such thread concerning Kappos/AIA and you lying and such.

    Nedo you are really losing it!

  172. 83

    Did you have a point to make, or is this more red herring bait like 99.9% of the rest of your posts in this thread?

  173. 82

    This is the first time that I have EVER seen anyone indicate that the Supreme Court Bilski decision affirmed the CAFC decision.

    I am literally astounded that anyone would think, let alone post,such balderdash.

    This person has no right to post on a patent blog anywhere ever again.

  174. 81

    We agree on NOTHING. You brain has gone soft from all the lies you tell. I said above that Bilski’s claim was just one particular method/process that could be applied to commerce.

    You and I do not have any agreement as for as your whacky definition of business methods is concerned, whatever that is at the moment.

    The only relevant use of stare decisis is Bilski 14, and the ascendancy of Diehr and the D-CAT as the ruling analysis/test for 101 subject matter.

  175. 80

    Okay Ned your penchant to discuss history for history sake is simply a red herring line of argument for diverting attention from the real issue being discussed. Deal with the facts being debated in this thread are simply get out of the way. No one needs your intellectual dishonesty stinking up the place.

  176. 78

    INANE: ” typically means that the Supremes reached a different result, but since that’s not what happened in Bilski I assume you mean to say “affirmed”.

    Holding that the PTO created and CAFC sanctioned MOT was NOT the sole test is the exact opposite of holding that the PTO created and CAFC sanctioned MOT IS the sole test. Only in your insane, inane bizzaro world could it be anything else.

    INANE: Go on, find me any post-Bilski decision where a claim was held to fail the MOT but still pass 101. Until that happens, MOT is effectively coextensive with the legal test.

    The MOT has been castrated and rendered a mere clue, therefore it can’t becoextensive with ANY legal test.

    Therefore no need would exist for any post Bilski decisions in which a claim was required to pass the MOT. Your argument is a classic non sequitur.

    Furthermore the FACT that the MOT has not been used by the CAFC to deny patents on a 101 basis is definitive proof the MOT is not the sole test, and for all practical purposes dead in the water.

    The test that has been used by the CAFC in the wake of Bilski, especially at page 14, is the Diehr Concept and Application Test, Diehr-CAT!

    See. Research Corp and Ultramercial.

  177. 77

    Ned: It was the general opinion that the MOT remained the all-but-exclusive test.

    No it was not.

    Ned: See Breyer and Scalia’s concurring opinion.

    Two do not make a majority.

    Intellectually dishonest and an intellectual coward, that you are.

  178. 75

    The en banc decision was overturned – what do you think that means?

    It typically means that the Supremes reached a different result, but since that’s not what happened in Bilski I assume you mean to say “affirmed”.

    Unless you want to take the position that Rader’s concurrence, of which the Supreme Court decision was merely a padded-out version, was actually a dissent.

    Go on, find me any post-Bilski decision where a claim was held to fail the MOT but still pass 101. Until that happens, MOT is effectively coextensive with the legal test.

  179. 74

    That is one serious F’d up view of Bilski.

    The en banc decision was overturned – what do you think that means?

  180. 73

    Overturning the MOT?

    What?

    It was the general opinion that the MOT remained the all-but-exclusive test.  See Breyer and Scalia's concurring opinion.

  181. 72

    Ha! – I trump you. You merely used Government with a capital G. I provided the Supreme Guidance with captials S and G.

    Besides, overturning the en banc MOT was one of only two things all nine Supreme Court Justices agreed to.

  182. 70

    All, What, if anything is wrong with this claim from a 101 perspective?

    1. A method of making money comprising:

    a. determining a market price for a good by selling at least one to a person and receiving from the person a number of credit pieces, the number of credit pieces per good sold comprising the market price;

    b. determining overhead …. [using a similar method];

    c. buying goods from sellers at a purchase price below the market price less overhead, wherein a good is received from a seller and the seller is given a number of credit pieces determined by the purchase price; and

    d. subsequently selling said goods to buyers at said market price or above [again describing the physical delivery of the goods and the receipt of credit pieces].

    Every step involves physical acts: e.g., receiving goods, delivering credit pieces. The steps are modified according to a mathematical formula, but the formula is applied to modify the physical actions.

    If there is a problem here, what is it?

  183. 69

    “Yeah, run away and hide. See doggy run.

    What does this mean?

    And why have you avoided the issue I actually raised?

  184. 68

    I have no idea why you want to drive this train off the MOT track?

    Is the MOT the right track to even be on?

    All Nine Supreme Court Justices in Bilski said no.

  185. 67

    AI, and, BTW, I will submit for your consideration that, IMHO, the Bilski claims were not abstract. They were in fact directed to a useful application of the hedging concept, itself notoriously old. Hedging of risk according to the claimed method was not only a process comprising a series of steps/acts; but hedging itself is useful. There may have been some legitimate question that the claimed method was a routine application of a well known method, but that is a question of novelty, not question of patent eligibility. So, why did the Bilski method fail 101?

    The claims did not wholly preempt hedging in the abstract, only the particular application of hedging claimed. If Benson’s wholly preempt discussion was incomprehensible gibberish, Bilksi is no better. Rather, it is incomparably worse.

    I think the whole discussion about abstractness was a diversion, a camouflage, a masquerade for what was really going on.

    But what, pray tell, was that?

  186. 66

    Um no, Prometheus is about the MOT. I don't understand why you want to divert attention into some absurdity.

    If you would be so kind as to define "medical method" we can have a discussion as to whether as a class they are  patentable subject matter. But until then, I have no idea why you want to drive this train off the MOT track?

  187. 65

    AI, finally. You agree that the claims held unpatentable by Bilski court were business method claims. It has taken literally months and 10,000 posts for you to agree to this simple fact.

    Since we are now in agreement with respect to this fact, and we should have agreed to it many many moons ago, we can move onto the next stage of the logic.

    What this is holding imply?

    Simply from a stare decisis point of view, claims exactly like the claims in Bilski will be henceforth held the be directed to unpatentable subject matter. But I would agree with you, that since the Supreme Court did not explain why the the Bilski claims were abstract with any clarity, we are left
    dangling.

    Some would say, that the reason the Bilski claims were held to be not eligible for patenting is because they did not recite execution on a computer.

    Others would say, that the claims would  have been held be unpatentable regardless because the output of the claim was not physical, i.e., did not pass the MOT.

    Actual Inventor, what is your view as to why the Supreme Court held the Bilski claims abstract?

  188. 64

    Then they could post their spin of the law and facts unchallenged and without question.

    That is indeed the desired result. Remember the last time Ned offered an olive branch? Caught dead-on in his L-IES, he wanted to just move one (but move in with his Dissent driven views intact).

    Too much, Mr. Heller, you ask too much.

  189. 63

    AI, I told you I do not know what a medical method is.

    And yes, Ned also told AI he did know what a medical method was, but just did not want to engage in a conversation with Um, no. Yes, I remember that well.

    Ned, what are you going to do when Prometheus is ruled patent inelgible? That is a medical method patent.

    Will ALL medical method patents then become patent ineligible with the same broad brush you wish to use from the single example of Bilski to business method patents?

    I note too that once again you look to the AIA for a defintion of Business Methods in an attmept to use that definition to outlaw under 101 – in strict disregard for what the AIA says about such use.

    You want to be reminded of direct questions that you were “too busy” to answer? How about the long list of proper statutory construction arguments put forth on interpreting the AIA? You did not ever address any of those – even after repeated attempts and reminders.

    All you give are L-IES and dishonesty. And hurt feelings when you are caught in your L-IES.

  190. 62

    More lies and spin. Okay I will debunk the first half and come back for the rest after pumpkin pie…

    Nedo Spin/lies: The Bilski claim held patent ineligible 9-0 were business methods.

    FACT: Bilski’s claim was just one particular method/process that could be applied to commerce. It did not/could not represent an entire category/spectrum of business methods. Bilski’s invention, and ONLY Bilski’s invention was denied a patent on statutory grounds. No category was ever ruled patent ineligible in that case.

    Nedo Spin/lies: It is literally impossible to conclude that the SC held that BM were patent eligible.

    FACT: Business methods have never been held ineligible subject matter by any court or congress. Therefore it was not necessary for the Court to rule business methods were eligible subject matter. The Court merely upheld business methods as statutory subject matter, as has always been the case.

    Nedo Spin/lies: What the majority declined to do was to adopt a categorical exclusion because there was no clear and well accepted definition of business method.

    FACT: The Supreme Court in Bilski said no such thing.

    ::END OF NEDS LIES PART 1::

  191. 61

    MM and Nedo would love it. Then they could post their spin of the law and facts unchallenged and without question.

    Patently O would lose any credibility it once had.

    And 6 might actually pass the L Sat, or so he would claim.

    Of course we would still have Gene Quinn so it would not be that much of a loss.

  192. 60

    AI, I told you I do not know what a medical method is.  Define it.  

    I offer you definitions of business methods.  You, in turn, do not offer me a definition of medical method or anything else.  We can begin to discuss these things once we agree on what we are talking about.

  193. 59

    1. Agreed.  However, that it held anything different was always a matter of debate.

    2. CAFC in Ultramercial?  Rader cited his concurring opinion in Alappat, not the majority opinion.  Get real.

    3. The Biski claim held patent ineligible 9-0 were business methods.  It is literally impossible to conclude that the SC held that BM were patent eligible.  
    –  What the majority declined to do was to adopt a categorical exclusion because there was no clear and well accepted definition of business method that would not potentially exclude technological inventions that might be useful in business.  E.g., the digital computer.

  194. 57

    Is this how you don’t know what a medical method is?

    Here we go again with the dishonest gamesmanship.

  195. 56

    Ummm….

    1.Benson was cabined and stands for no more than the holding in Diehr.

    2.The CAFC said in Ultramercial what Alappat told you in .

    3.Bilski “upheld” so called business methods as statutory subject matter.

    :: Replaced your BS spin with facts::

  196. 55

    I have no idea what "applied commerce is."  Define it.  

    As to business method, I have defined in in the same way has Congress has now defined in the new AIA.  Essentially, a method of doing or conducting business; however, excepting out technological inventions that have a business utility.

    Clearly the Bilksi claims met this definition as they failed the MOT, but otherwise had a business utility.

  197. 54

    AI, you, sir, and you colleagues are the one's who contend that Benson did not hold what it did, that Alappat held what it did not,  that programmed machines are patentable per se, and that Bilski held that business methods are patent eligible.  If you actually believe your positions are valid, I find that pitiable.

    As to me, you can jump up and down all day, point fingers, etc., but you cannot cite even one instance where you think I did not tell the truth.  All this came about when I objected to Kappos deliberately lying in support of the AIA while it was still pending.  This  quickly went off tangent, and you guys began calling me a liar because I suggested that those who hid behind fake names did so for the purpose of lying.  In defense of your reputations, and to divert attention, you began to accuse me of your own crimes.  Then you repeated it.  And have kept repeating it.  Ad infinitum.  Ad nauseum.  

  198. 52

    I know it’s frustrating when you have your loaded questions disarmed, rendered harmless, then replaced with honest questions that focus on the true issue at hand, but do try to be an honest fellow and answer to the best of your ability.

    Of course if you rather go on a tangent about which questions you will and will not answer, and all your perceived sock puppet villains, then so be it.

    And I will simply add the original question to the many, many questions put to you on this blog that you have ducked and dodged, thus earning you the online reputation of “Dishonest Ned”.

  199. 51

    It has to do with your view of history, and why it turned out the way it did. You views on patent law are similar. Why you have some of the basic facts down, you show very little understanding of what they mean.

  200. 49

    anon, insulted or not,  I do answer direct questions directly.  If I don't do it all the time, it typically is because I am rushed and do not have time.  I have asked that you or other simply repeat the question.  That is not too much to ask.

    But with AI and his fellows, they absolutely refuse to answer any question that will force them into an admission against interest.  This is quite understandable, but it does go to show that they are not here to discuss issues, but to play games.

  201. 47

    Ned,

    Please refrain from accusing others of not answering direct questions.

    It is insulting to watch you play that game.

  202. 46

    Actual Inventor, neither Brown nor Obama had much to to with the result in Brown v. Board of education. It came out the way it did because of one man, appointed by Eisenhower; the very same president who later sent the troops South to enforce the case holding.

    Who was this Republican justice? Name him.

    And, which Republican president did more to end slavery than any other president? It had nothing to do with Dred Scot, the man.

    And which Republican president began affirmative action?

    And which Republican president extended it to quota’s and timetables by executive order in his famous Philadelphia Executive Order.

    AI, your lack of understanding of US history is amazing.

  203. 45

    Ned,

    If we started deleting defamatory posts, the threads would be empty, as I consider “shilling” defamatory, and between “shilling” and true defamation style postings, the 60% crowd would have nothing to say, thus also removing the 30% said in reply to the vocal minority.

    Be careful what you wish for – just look at who would be most impacted (you and Malcolm).

  204. 43

    Love to.  Really would.  But he and anon and NWPA and the Shilling and and their fellow sock puppets will not stop.  It would be nice if we could have Dennis simply delete their defamatory posts.

      

  205. 42

    Umm…I I have no feud with Ned, just like you Malcolm Mooney, Ned has many questions from many different commenters, that he has ducked, dodged, and runs from.

    He is trying to emulate you, his Idol ( remember NAL and the PMD??) But Tiger woods will catch and pass Jack before Nedo catches up with you in the cut and run championships.

  206. 41

    Well, 101, and 112 are two different things so it makes sense that each would have two different requirements.

  207. 40

    Hmmm…let’s see.

    By business you mean commerce.

    Well, are there ANY claims that are not for the process of applied commerce?

  208. 39

    WTH? Umm..Look Dred Scott lost but how many slaves had the audacity, let alone the intelligence to sue their owners, at the Supreme Court none the less.

    Remember slaves were supposedly sub human, no smarter than cattle. They WANTED to be slaves like a dog wants to belong to his master.

    In fact you were more likely to be hung for shooting a persons dog than shooting a black in the street in front of the Supreme Court building itself.

    Now here comes Scott, one bad MOFO. Dragging not only his master, but the entire institution of slavery before the Supreme Court!!!

    He grabbed this entire nation by the balls and made it squeal!!!!!!

    Yeah he lost and he knew he would, just like Bilski knew he would, but that was was some bad awesome gangster sheet. It set in motion the good fight and put this world on notice that battle was on and poppin.

    Now flash forward and we have Brown Vs Topeka, Civil Rights, Obama!!!!!!!

    Bilski was bad azz too if ya ask me. Never amending his claims, taking it all the way to the Supreme Court!!! I am sure he knew the odds were against him and he would probably lose. But look at the doors he opened up and the good fight he started by being a trail blazer. And all the victories we have gained since Bilski.

    MOT neutered as a test period, let alone the sole test.!!!

    Business methods upheld as statutory!!!!!

    Diehr reaffirmed as controlling, which means DCAT rules baby!!!!!!

    Flook and Benson Cabined and Steven’s sent uh packin!!!! LMAO!!!!

    And in it’s wake we have Research Corp, Ultramercial. YEAH BABY!!!

    And just like Brown there will be a new SCOTUS smackdown and total victory uh coming. And when it happens we will have Bilski to thank for it just like we have Dred to thank for his courage and sacrifice.

    Maybe it will be my case or another one before it already in the pike.

    But like the poet said, for those that have courage to believe and the strength to run their on race, victory is certain!

    I love this country!

  209. 34

    You are missing the point and there is no wanting it both ways.

    Apparently a “general purpose computer” is one with enough programming that it can run the claimed software when it comes time to construe “computer-readable medium” in the claim or to support enablement/WD

    This is where you are off, specifically, “with enough programming that it can run the claimed software“. You write that this is a predicate condition. Clearly you are confused. This is the condition that exists after the claim.

    I wish those who do not understand the art field would refrain from commenting on the art field.

  210. 33

    The reply by IANAE is inane.

    You’re right. Even though the plaintiff was held to be chattel and the case had to be expressly overruled for any civil rights to actually happen, AI would have been perfectly reasonable to parade in front of the courthouse after Dred Scott shouting “Actual Black People win again!” like he’s doing for Bilski. < /sarcasm>

  211. 32

    Good luck on doing those actions you want to focus on when the machine has not been configured (i.e. physically changed) to enable those actions.

    Here we go again, with the software patent people wanting it both ways.

    Apparently a “general purpose computer” is one with enough programming that it can run the claimed software when it comes time to construe “computer-readable medium” in the claim or to support enablement/WD; but a “general purpose computer” is one straight off the manufacturer’s assembly line with no programming at all when the programmed computer needs to be a 101-eligible “new machine”.

  212. 31

    who cannot understand simple concepts as in there is a difference between using a machine and a new machine.

    I can understand the challenge put forth on these threads awhile back (which you did not take up) between two machines – one programmed and one not.

    Your continued harping on “just using a machine” shows who the real ignorati is.

    Good luck on doing those actions you want to focus on when the machine has not been configured (i.e. physically changed) to enable those actions.

  213. 30

    And yet, even today nobody seems to think Dred Scott was a huge step forward for

    ????

    The reply by IANAE is inane.

  214. 29

    Dred Scott lost his battle at the Supreme Court too, yet the Civil Rights movement triumphed and now we have Obama.

    And yet, even today nobody seems to think Dred Scott was a huge step forward for civil rights in the way you think Bilski was a huge step forward for business method patents, or for patents generally.

  215. 25

    AI, we also have dunderheads who cannot understand simple concepts as in there is a difference between using a machine and a new machine.

    Know of any such dunderheads, AI?

    And, if you claim not to be among the ignorati, please give us an example, just one, of using a computer?

  216. 21

    “Because none of those things existed 100 ears ago

    has got to be one of the lamest posts this year.

    Oh that’s just Malcolm Mooney campaigning for the award. He has won it like what, 6 years in a row now?

  217. 20

    Carbon, hydroen, oxygen and various other atoms have been around for eons.

    The actual molecular bonding mechanisms have been around for eons.

    Because none of those things existed 100 ears ago

    has got to be one of the lamest posts this year.

  218. 19

    Neither the Federal Circuit nor the Supreme Court followed suit to Bilski’s lead –

    Guess you have not read

    Bilski 14,

    Guess you have not read….

    Ultramercial

    Guess you have not read……

    Research Corp.

    Well, guess you just do not read period.

  219. 18

    “The world’s first African American heavyweight champion Jack Johnson patented improvements to the wrench (U.S. patent# 1413121) on April the 18th, 1922.”

    Oops..too bad the wrench already existed years earlier.

  220. 16

    “That’s another good way to verify that such a thing is not even an invention to begin with. It is just a bunch of words on a sheet of paper.”

    So is every invention described in a patent application.

  221. 15

    How do you model a method of winning a military battle?

    Flight trajectory of the space shuttle?

    Did you know that for many years there was great confusion on the space shuttle about which astronaut would get to use the single, tiny on-board bathroom first in the event that multiple astronauts needed to “go” at the same time?

    A solution was patented by a 37 year old Russian using a variation of the Kevarksy-Reynolds simulation but NASA couldn’t afford the license. Ultimately, this problem and others led to the demise of the shuttle program.

  222. 14

    “I guess you didn’t read Bilski, then. Neither the Federal Circuit nor the Supreme Court followed suit to Bilski’s lead – they both showed out in trump, and he lost the trick.”

    Dred Scott lost his battle at the Supreme Court too, yet the Civil Rights movement triumphed and now we have Obama.

  223. 13

    “Because none of those things existed 100 years ago.”

    Name one “thing” that existed 100 years ago that can’t or has not been improved?

    There is a reason the words “Promote the progress” are etched in the Constitution.

  224. 12

    Ned, that is actually a good question, best asked of an “Actual Inventor”.

    How do you model a method of winning a military battle?

    Flight trajectory of the space shuttle?

    Moving large crowds safely through a maze?

    I will tell you how. Through sound engineering principles that include, computer simulations of all kinds, architectural models, game board models, process analysis flowcharts, finite math and more.

    The backwards Neanderthal thinking of you, INANE, 6, and Mooney never ceases to amaze me.

    All of this if you can’t drop it on your foot it’s not a patentable invention non sense is a bit passe.

  225. 11

    Today we have inventions for complex information processing, quality improvement, and increased efficiency applied to commerce.

    Because none of those things existed 100 years ago.

  226. 10

    Imagine you have a “computerized method of locating public restrooms with unscented soap” (some people have allergies, you know).

    You have an Interview with the Examiner and you want to show him how awesome it is. So you write a program for a handheld device that displays a button and when you hit the button the program causes a streetmap with some dots on it to be displayed.

    The Examiner says “Are those the nearest restrooms with unscented soap?”

    And you say “This is just a model to show you how it will work after implementation, which is easily within the skill of the ordinary programmer.”

    In other words, you simply simulate the device/method that you’ve imagined. The rest of the work can be done by the usual loser/programmer types.

    /pxtxnt txxbxgger off

  227. 9

    Fortunately we have enlightened majorities on the Supreme Court and Federal Circuit that advance the laws to protect the progress we have made and continue to strive for.

    I guess you didn’t read Bilski, then. Neither the Federal Circuit nor the Supreme Court followed suit to Bilski’s lead – they both showed out in trump, and he lost the trick.

  228. 8

    Alan, that model can be reduced to practice quite easily. They did/do it everyday in silicon valley.

  229. 7

    Yes, the iron age. Unfortunately we have IQ6 examiners that can’t comprehend we are in the super quantum age in which it’s possible that the neutrino is faster than the speed of light.

    Today we have inventions for complex information processing, quality improvement, and increased efficiency applied to commerce.

    Inventions that promote the progress of the useful arts, employ people, improve the world, and increase the standard of living for all.

    Fortunately we have enlightened majorities on the Supreme Court and Federal Circuit that advance the laws to protect the progress we have made and continue to strive for.

    Now all we need is a few more examiners that can follow suit.

  230. 5

    Many years ago I visited the offices of Limbach & Limbach (in the landmark Ferry Building) and I recall dozens of patent models on display. Works of art, really. The companies who manufactured those things didn’t cut too many corners. In addition to persuading Examiners, they must also have been very useful to the salesmen charged with selling the machinery.

  231. 4

    Luckily for those who invent methods of queuing for the lavatory, the model airplane industry is quite well established.

  232. 3

    That’s another good way to verify that such a thing is not even an invention to begin with. It is just a bunch of words on a sheet of paper.

  233. 2

    Imagine if you had to provide a model for a typical invention of today like “Method for purchase and sale of items over the Internet including a one-click shopping cart”.

  234. 1

    They’re relics of a bygone era when men were men and patents were respectable. Even by their staunchest critics.

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