By Dennis Crouch
FuzzySharp Tech. Inc. v. 3DLabs Inc. (Fed. Cir. 2011)
In a per curiam opinion marked nonprecedential, the Federal Circuit has vacated and remanded the subject matter invalidity finding of a N.D. California District Court and instead ordered the court to rework its decision in light of Bilski v. Kappos, 130 S. Ct. 3218 (2010) and subsequent Federal Circuit decisions on point. As discussed below, FuzzySharp’s invention relates to compression software for computer graphics. U.S. Patent Nos. 6,172,679 and 6,618,047. The main idea of the invention is to avoid calculations associated with always hidden surfaces. Although the specification explains that its implementation uses “fuzzy” math to calculate always hidden surfaces. However, “fuzzy” limitations are not found in the asserted patent claims. The application was filed in 1997, but claims priority to a 1991 Australian patent application.
FuzzySharp’s appeal was filed after the district court determined that the claimed method failed to pass the machine-or-transformation and therefore, under the prevailing law at the time, the method did not constitute patentable subject matter. In re Bilski, 545 F.3d 943 (2008). In its 2010 Bislki decision, the Supreme Court rejected the notion that the machine-or-transformation test could serve as the exclusive test of the patentable subject matter of a newly invented process. In the new rubric, the machine-or-transformation test offers only an important clue.
In its opinion, the Federal Circuit largely agreed with the lower court’s conclusion that the FuzzySharp claims fail the machine-or-transformation test, but, following the new Bilski rubric, remanded for a determination on the ultimate question of patentable subject matter.
Meaningful Limitations: FuzzySharp’s asserted claims involve two elements that are potentially linked to a machine – computation and computer storage. However, the appellate panel found those elements lacked “meaningful limits” on claim scope in the same way that the recitation of a general-purpose-computer is not a meaningful limitation of a software process that will only be performed on a computer. (Citing Gottshalk v. Benson, 409 U.S. 64 (1972)).
Claim Construction: An important and arising issue is the interplay between claim construction and patentable subject matter. Under Federal Circuit precedent, claim construction appears to be a necessary precursor. However, the Supreme Court has regularly ignored details of claim language in making its determinations – focusing instead on what it saw as the invention.
Here, the court held that some claim construction is necessary: “[W]e conclude that … the patent eligibility of at least one of the asserted claims turns on questions of claim construction that the district court did not have the opportunity to address.” It will be interesting to watch how the parties argue on remand for claim construction results that favor their hoped-for subject matter eligibility outcome.
Notes:
- The per curiam panel included Judges Bryson, O’Malley, and Reyna.
- The U.S. application was prosecuted by Carl Oppedahl’s Colorado-based firm.
- The patentee is represented by Matthew McAndrews from the Niro firm on appeal; Jonathan Baker from Skadden Arps is handling the appellate defense.
-
Here is Claim 12 of the ‘047 patent that the Federal Circuit analyzed:
12. A method of reducing a step of visibility computations in 3-D computer graphics from a perspective of a viewpoint, the method comprising:
computing, before said step and from said perspective, the visibility of at least one entity selected from 3-D surfaces and sub-elements of said 3-D surfaces, wherein said computing step comprises:
employing at least one projection plane for generating projections with said selected set of 3-D surfaces and said sub-elements with respect to said perspective;
identifying regions on said at least one projection plane, wherein said regions are related to the projections associated with said selected 3-D surfaces, said sub-elements, or bounding volumes of said 3-D surfaces or said sub-elements;
updating data related to said regions in computer storage; and
deriving the visibility of at least one of said 3-D surfaces or said sub-elements from the stored data in said computer storage; and
skipping, at said step of visibility computations, at least an occlusion relationship calculation for at least one entity that has been determined to be invisible in said computing step.
“See Diehr!!!!!!!!”
Diehr was silent as to any such firmware/software differentiation.
Your response is nonsense and nonresponsive.
“bootstraps”
Translation: WAAAAAH WAAAAAH, I don’t like that law and I am going to ignore it (see? I have my eyes closed).
Again, Rader bootstraps. If you cannot see that, you have no right to call yourself a lawyer.
When a proposition is devoid of respectability, what is one to do? Treat it with respect?
It is the difference between patenting software in the abstract and patenting software as applied to a particular application. See Diehr!!!!!!!!
We all know Rader is a Rich Kool Aid drinker. We know Rich's agenda and his basic lack of honesty. He did not recuse himself again and again on the meaning of 112, p.6, when he was part of the drafting process and under circumstances where his proposal to Congress was not adopted, but rather was rejected. What kind of man drafts legislation and sits in judgement on it, twisting it meaning to what he wanted when what he wanted was rejected?
Ultramercial bootstraps a the legitimate patentability of a dedicated computer operating in a special application using firmware into a general proposition all programmed computers are patent eligible regardless of application. It is that simple.
Deal with the blows already dealt to you
If you think I’m going to engage you on that level, apparently before you’ve even read the case law yourself, you can deal me another one.
The law is very clear and consistent on the functional relationship exception. All you need to do is take that well-settled exception and explain how/why/whether it applies to a computer reading a cookbook (printed on actual paper if Les prefers, or physically represented by ones and zeros if N-Dubz prefers) and carrying out a culinary recipe. I think you’d find it enlightening.
“with anon and N-Dubz predictably nowhere to be found.‘
You have not answered my question above and I see no reason to pile on you at this point.
Deal with the blows already dealt to you with the case law – as it is correctly understood , as opposed to how you would incorrectly spin it, then we can talk again.
“If the programmed machine is claimed as an element in a combination, in principle, I have no objection.”
Again, a distinction without a difference.
The component of programming is but one of many components in a larger machine called a computer. Again, see Ultramercial.
To not recognize this is the height of absurdity.
“This response is so inane as to not deserve a substantive response.”
Translation: This response cuts through my silly argument so completely that I am at a loss as to what type of BS to respond with.
You are welcome.
“Firmware is dedicated to the machine. It transforms machine into a special-purpose machine.”
This is a difference without a distinction. Software transforms machine in exactly the same manner.
“dedicated” – really?
“does not justify”
Except it does – that is what “We have held” means.
“does not justify”
Except it does – that is what “We have held” means.
A machine that is not properly configured is like handing someone a screwdriver when they ask for a wrench (it’s a different machine).
Once again, Ned, you miss out on that important different making clause: “configured to”
Once again, you have ignored Ultramercial where the component parts of a machine are simply recognized as being component parts.
Why is it that you have never addressed the holding behind Ultramercial?
Wow, that’s got to be at least four or five freshly-minted screen names, all created just to unconvincingly tell me I’m wrong on this one point, with anon and N-Dubz predictably nowhere to be found.
“The different states are separately patentable.”
Good to know. We’ll talk some more once you put that goal post back where you found it.
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This response is so inane as to not deserve a substantive response.
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No.
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Software and firmware share one thing in common. They're both instructions for a general-purpose computer. But that is the where the commonality ends. Firmware is dedicated to the machine. It transforms machine into a special-purpose machine.
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“without that Littany being printed or published or whatever”
More defelections – the list has been reproduced many many many times. What is ridiculous is the game playing. Ridiculous, but oh so expected.
“What you are actually imagining is a circuit configured to assume two different states, and your ‘change’ is merely selecting one of them.”
The different states are separately patentable.
I can easily claim:
1) An apparatus in state 1.
2) An apparatus in state 2.
3) An apparatus configured to change from state 1 to state 2.
These three claims wouldn’t be rejected under 35 USC 101 for statutory double patenting in view of one another because they are not identical.
Thus, I can claim “a computer in state 1”, which is different than “a computer in state 0” where state 1 is the programmed computer and state 0 is the unprogrammed computer.
The fact that a particular state is ‘selected’ (i.e., “merely selecting one of them”). All characteristics of a claimed invention, to some extent, are selected.
“When the traffic light turns green, is it a different traffic light?”
Yes it is — it is not identical to a traffic light showing red.
“what amounts to a single means claim”
And what grand pompah gets to decide what is a “single means claim”? There exists no modern computer that can rightfully be lumped as a single means. Computers simply are extremely intricate machines composed of many many components and many many means.
Thus, the subjective fallacy of Ned is revealed: “what amounts to” is what is desired to be outside the realm of patents for no other reason than “because that’s what I want.”
Policy masquerading (poorly) as fact, defeated by law.
The paper table folds when pounded.
Ridiculous. One simply can't ask somebody to answer a litany of questions without that Littany being printed or published or whatever. I am not going to do research to find out exactly what you're talking about when you ask me to answer all your questions however posed, whenever posed, and the like. Again such a request is simply ridiculous
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I agree with much what that article said until skidded off the edge of the world. Alappat claim was justified because the claimed rasterizer was a special-purpose machine specifically adapted for specific application and that was identified and claimed.
Alappat does not justify the general proposition that all computers programmed for a purpose, are patentable subject matter. Rather like in Diehr, they have to be adapted to a specific purpose and it has to be claimed.
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If the programmed machine is claimed as an element in a combination, in principle, I have no objection.
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It is good in combination claims. It is preferential when claiming old elements. it is not good and it's not preferential when claiming what amounts to a single means claim.
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“but it has just as obviously not changed for the purposes of patentability.”
Incorrect – See Alappat.
Is the circuit changed if the gate shunts from in series to in parallel?
The circuit has obviously changed electrically, but it has just as obviously not changed for the purposes of patentability. What you are actually imagining is a circuit configured to assume two different states, and your “change” is merely selecting one of them.
When the traffic light turns green, is it a different traffic light? Yes if you’re a driver, no if you’re a patent attorney.
Imagine a circuit that…
…has a gated arrangement of resistors in series and in parallel.
Is the circuit changed if the gate shunts from in series to in parallel? Remember, there are no addition or subtraction of parts…
Hard to believe that the academic IANAE’s treatment of actual case law is found wanting?
Not really.
Back to the tower with IANAE!
Re: Faulkner v. Gibbs.
I don't know what your point is talking about a post '52 District Court case of the same name. That case is completely irrelevant to the point I am making. The point I am making is this: Faulkner v. Gibbs clarified that the Supreme Court did not object to the use of means plus function claims in combination claims, where the novelty was in the combination. They reaffirmed Halliburton. They reaffirmed that when a claim was masquerading as a combination claim, in essence, a single means claim because
it's novel element was expressed functionally, that it was indefinite.
Now when Congress, shortly after Faulkner v. Gibbs comes down, affirms that means plus function claim elements are proper in combination claims, what are we to think? It seems to anybody with any sense would think that they intended to enact Faulkner v. Gibbs.
“The reply function isn’t working properly in my browser”
Sounds like a job for an INVENTION!
1. A reply button that functions wherein the reply button did not function the day before for Hagbard Celine.
DO NOT INFRINGIN’ ON MAH PATENT D!
I'm sorry, but my views really haven't changed. I have tried to explain to you why, but apparently you do not listen. For example, you might check the report of the AIPLA patent law committee committee on the same topic. I have seen a published here on the web. But the committee voted to amend the statute pretty much as recommended by the article, but with a corresponding amendment to section 282 which would enact the reverse doctrine of equivalents. Essentially we would move the scope clause out of section 112 and into section 282. We would not remove it from the law, but would make it a defense.
That was my recommendation. I wrote the committee report alone. Check it's tone.
No. I am saying they are different.
Night, you keep saying that I say that circuits are not patentable. I keep saying to you back that I disagree with what you're saying about what I am saying.
I think circuits patentable.
So please stop saying I do not think that.
And just to be clear, the machine he handed you was special purpose machine made so in the same way as the Diehr mold was made into special-purpose mold by the use of the programmed computer.
No, what is handed to you is a machine.
It is still your move as your treatment of existing case law is found wanting
Nobody could have predicted …
That, then, IBP only harms you, as you disregard a clear helping hand based on who is saying something rather than on what is being said.
Your loss. I am not sweating your decision (no matter how much you think I am).
Like I said before anon, it is not necessarily the general view of my credibility about which I don’t care–it is YOUR OPINION of the general view of my credibility about which I don’t care.
I know you’re finding it extremely difficult to deal with this, as you present what you obviously believe to be compelling and persuasive arguments to support your opinion, and you in your certitude feel the need to try to hammer them home in the face of total disregard.
Sorry, anon. I guess it boils down to this: even if you did have a reasonable point to make, I wouldn’t care, because it was YOU who was making it. Talk about a lack of credibility.
“and it equivalents”
This phrase must be accepted for what it says. See NWPA’s position, and note that others have likewise held – those others including the en banc Alappat case as well as the re-confirmed Ultramercial case – that software is equivalent to firmware is equivalent to hardware andt that each is but a mere component in a larger collective machine called a particular computer.
You seem not to be able to accept this very fundamental fact and point of law, which must at least be acknowledged as such (even if you are only advocating a different policy objective).
Not so gracious, but on point.
The reply function isn’t working properly in my browser – this is in reply to Ned:
Ned: “You would allow patenting programmed computers in the abstract?”
a. I don’t know what that means.
b. Whatever it means, I wasn’t actually advocating anything either way, I was applauding SteveW’s attempt to inject some good sense into the debate: It’s pointless to argue endlessly about how the words of the existing statute apply to software “as such” and programmed computers, when what is really needed is a clear policy on whether software and programmed computers should be patent-eligible at all AND what additional criteria, if any, should apply apart from novelty and non-obviousness – e.g. in terms of the “utility” of the program. Does “utility” include entertainment value? Economic value? Technical value? Some, all or none of these?
Ned,
You just repeat over and over the same ridiculous arguments.
1)a programmed general purpose computer is a particular machine. Computer software or information processing defines structure. The abstractions you refer to are for engineers to work. If they were abstractions in the sense you mean then the machine wouldn’t work.
2) A vacuum is useless until you turn it on.
3) A record player and music do not have a functional relationship nor does a record store information and then operate on the information. A record player cannot detect the tumor in your brain.
4) mathematical algorithms as you say from Benson are an illusion. The operation of any machine can be represented by a mathematical algorithm. In Computer Science we have evolved so that we work directly with the a notation that seems to evoke Newton’s laws in the naive and simple minded.
5) Information is represented and transformed. Transforming information takes space, time, and energy. Information is a fundamental property of nature that has revolutionized physics and science.
6) Etc. with your nonsense.
You also keep evoking these capture all and everything and if we let you have a patent for that then noone else could do anything. And, yet you do not actually give examples of inventions that are precluded. It is a mere scare tactic.
Ned,
You confuse “agreeing” with “listening” – an error of conceit.
In fact, I would put to you that I have asked you (once agaqin) to answer the litany of questions as evidence that I have listened to you and I recognize that you still have not addressed the issues raised by those questions.
Do not engage your game of deflections when I am (politely) trying to hold your feet to the fire of addressing difficult issues that you must eventually face.
Fix tag.
Your caring about my view of your credibility misses the point completely IBP.
What you Should care about is the general view of your credibility. Making vacuous arguments premised on a platform of “If I repeat a falsehood oftern enough it gains the perception of truth” is a poor avenue to take.
That is the worthwhile point that I am trying to have you understand.
No IANAE, your move was previously rejected – ans that’s why I included in the post immediately above the point about loading software and changing a computer.
It is still your move as your treatment of existing case law is found wanting.
Try again.
any of my previous posts concenring “functional relationship” and how a lack of such would mean that computers would not be able to actually be loaded with software.
A lack of functional relationship would also mean that countless housewives would not be able to actually bake cakes.
I will await your actual response to real case law first.
That answer has been previously provided. The functional relationship is to the substrate (poem to mug; program to disk; recipe to book) and not to any other thing. That’s the whole point of the printed matter doctrine, and it’s borne out by all the real case law.
If the functional relationship were “the person/thing reading it behaves differently”, the doctrine would not exist at all, because it wouldn’t even cover the poem on the mug.
Your move. Explain using consistent legal principles why a computer-readable flash drive is patentable but a computer-readable recipe book is not. You may assume, if you wish, that they contain the same recipe.
No, anon, it is you who is missing the point:
I don’t care about your evaluation of my credibility, nor do I care about your opinion of my credibility in the eyes of new visitors to this board.
While you started to say something worthwhile at one point, some of the wheels quickly came off your argument and it’s now upside down in the ditch–and I’m driving past, laughing and flipping you the bird.
Sorry anon.
Patent law is wide open–not even senior appellate justices can agree on even the most basic concepts. Advocating for plausible interpretations is what we ALL do, including those appellate judges–except in rare instances where there is a well-defined paradigm, such as…
From link to digital-law-online.info.
To determine the scope of the “mathematical algorithm” exception, Judge Rich examined the three Supreme Court cases on the patentability of software-related inventions:
A close analysis of Diehr, Flook, and Benson reveals that the Supreme Court never intended to create an overly broad, fourth category of subject matter excluded from Section 101. Rather, at the core of the Court’s analysis in each of these cases lies an attempt by the Court to explain a rather straightforward concept, namely, that certain types of mathematical subject matter, standing alone, represent nothing more than abstract ideas until reduced to some type of practical application, and thus that subject matter is not, in and of itself, entitled to patent protection. . . .
Given the foregoing, the proper inquiry in dealing with the so called mathematical subject matter exception to Section 101 alleged herein is to see whether the claimed subject matter as a whole is a disembodied mathematical concept, whether categorized as a mathematical formula, mathematical equation, mathematical algorithm, or the like, which in essence represents nothing more than a “law of nature,” “natural phenomenon,” or “abstract idea.” If so, Diehr precludes the patenting of that subject matter. {FN41: 33 F.3d at 1543, 31 USPQ2d at 1556-1557}
The court concluded that this was not the case in Alappat’s claimed invention, and so the “mathematical algorithm” exception for statutory subject matter did not apply.
The court found no basis for software-based inventions running on programmed general purpose computers to be per se unpatentable.
We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.
… Alappat restricts the Patent Office from treating software-related inventions more strictly under Section 101 than other inventions.
In Ned’s “it must be able to be dropped on my toe” fallacy-land, all patents fail sinec a patent is merely an abstraction, words written on paper that convey a legal right.
The only “valid” patent would be one that is submitted with a working physical model.
O so 18th century.
“The hardware remains the same for each step.”
Ned, you quite miss the claim as a whole with the changed machine featured by the language “configured to”.
You have parsed the claim to only the action steps that describe th new configuration and missed (no doubt on purpose) the fact that an unprogrammed machine and the programmed machine simply are not the same machine. One can program a machine and not run that program (thus not engaging in the time-varying steps and still have a machine that violates the claim, as a whole) AND one cannot have a machine that is unprogrammed that can engage in the time-varying steps, and thus your argument is seen to be wrong no matter how you approach it.
To somehow hold that “programming” does not change a machine is embrace the absurd.
Can the views of Rosseta Stone: “In that document, the conclusion is that functional claiming is a good thing, picked on excessively by the courts and that other avenues now exist to protect (and thus that 112 p6 is not the be all and end all)” be squared with “My views really haven’t changed“?
I think not.
“My views really haven’t changed.”
But your views do not match the tone or meaning of the conclusion you signed up to, that you keep on offering as some kind of “proof” when all it is is a law review article. Big whoop to begin with, and you are not even consistent with that big whoop.
That’s the point.
“including the recent Faulkner v. Gibbs case, the meaning of the statute is unambiguous”
That’s also the point, the case you quote from is PRE-1952 and the only Faulkner v, Gibbs that was decided after 1952 does not speak at all to what you have claimed.
Your L_ies have been exposed again.
You cannot win an argument with your own argumetns and references.
You are a T O O L
Are you equating a circuit that is fixed with the sequential use of a circuit?
?? where is this coming from?
Ned, you do not know how to read do you? Or are you being purposefully obtuse?
T O O L
Sure they can. The fact that my computer program is stored only in volatile memory is not (yet) relevant to patent law. Intellectually honest? That’s a little heavy, I’m just trying to jam a hypothetical into a short post.
Ned, just nonsense you type. Shear nonsense. A machine of electric circuits that transforms information that is over 10 percent of our GDP and yet it is useless. OK.
The abstraction you speak of are not realted to the term abstraction in patent law. The abstraction are only working levels for human conceptualization.
“Ok, the next time you fix a car, I will hand you the software.”
Try getting out into the real world Ned – you would see that your statement just proves the opposite of what you think as there as many times now that “handing you the software” IS actually done instead of handing you a wrench.
T O O L
Anon, OK let's have a side bet. Whenever we meet, the other buys a round depending on what the Federal Circuit does.
6, is coming around. But he has been listening to me longer than you.
Are you equating a circuit that is fixed with the sequential use of a circuit?
Imagine a circuit that converts a number to a voltage on an output. Is that circuit changed if I operated the circuit in subsequent time slices to output different voltages at different times? Absolutely not. But that is what you say I can do with a computer where the output of an ALU changes every so ofter in response to an instruction appearing in the CPU's instruction register where it is decoded. It is a new machine, according to you, each time the output of the ALU changes.
You have to realize that this is nonsense. The physical circuits are not changing in either example. The data in both are
cause the voltage to change in the one and the output in the other to change. What you describe is the operation of a machine, not a machine.
Ok, the next time you fix a car, I will hand you the software.
anon–
Are you alright?
“I support MM in the call to stop stealing names. MM is a mean troll, but that doesn’t mean you should steal his name.”
Easy to accomplish. 6 and Ned have figured it out. Me … meh?
Ignore that namestealer Ned. He is just trying to confuse you.
Only a person with a GREAT COMPUTER BRAIN can create drivel such as I write.
Can I get my cookie now?
“Malcolm, we all know that a programmed computer is claimed as a sequence of steps.”
Not always.
You have no farm to bet.
Stay away from such wagers or you will have nothing left at all.
Sorry Ned, it is (and if there was any doubt, I would remind you of the time that you well-over-the-top thought 6 was doing a great job of examination by merely agreeing with one of your viewpoints).
Good luck with that.
“Take a look at the claim ”
One claim does not an argument about “always” makes.
You are stepping into the delusional medical method claim not being 101 eligile, therefore all medical method claims not being 101 eligible False Argument land, a land where real law does not go.
“Too many unnecessary questions arise if preamble language is considered only sometimes limiting.”
That sir, is your opinion, and one I will fight to the death to protect your right ot have. But, at the end of the day, it is only a mere opinion, and is not persuasive. To post a strawman about triply-nested “prambles” is likewise to venture into the “see my one example, now apply universally” gambit.
That game is but a game and quite loses its effectiveness whenthe game is noted.
“but spaced in time between steps.‘
If it were true that only a sinlge on-off were invovled, this might have some plausibility.
But this fails gloriously when one considers the resistors in series and resistors in parallel idea.
Sorry Ned, your spaced in time argument is DOA.
“A new circuit is a new circuit.”
Except when it is not. See the Anti-Alappat view.
“and think about what the patentee is really claiming.‘
The “essence” of the claim game: noted.
Just like pornography.
“Your considered legal analysis of this particular subject ”
No, such an obvious analysis is not one that I would consider a legal analysis.
It just happens to be the way it is.
SteveW,
Welcome to just one of the games that Ned plays.
Ned,
I do not preach what “Europe Law” is.
Tag fix.
“Software is neither. Software is abstract.”
No Ned, see Ultramercial. And “Wrench” can too be “abstract” as in, I can envision one in my head – but such is pure obfuscation and game playing – unworthy of our discussion.
Well then, I'll bet the farm.
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No it is not.
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SteveW
Your light bulb example is inapposite. The changes that occur to a computer when software is loaded simply are not comparable to a light bulb. When I turn off my machine at night the changes effected by the loaded software do not evaporate and I do not need to restructure my machine the next day.
Try to stay intellectually honest.