The following excerpt comes from Professor Robin Feldman's forthcoming Harvard University Press book Rethinking Patent Law which will be released in 2012. The excerpt is reproduced with permission from Harvard and Professor Feldman.
Looking from the perspective of preemption can be helpful in developing an approach to many of the questions generated by the emerging field of personalized medicine. Personalized medicine is an area of applied research devoted to developing tests that operate on biological and clinical data from a patient (e.g., protein levels, genetic mutations, medical history) to provide diagnoses, prognoses, and treatment regimens specific to the patient. Cases arising in this field include LabCorp, which concerned correlating elevated homocysteine levels with certain deficiencies, and Prometheus, which concerned determining metabolite levels after administering a particular class of drugs for gastrointestinal disorders and adjusting the dosage of the drug based on the metabolite levels.
As discussed earlier, the Federal Circuit's decision in Prometheus seemed to suggest that most life science inventions would satisfy the requirements of patentable subject matter, while the PTO's application of Prometheus could lead to the rejection of numerous inventions in this arena. Neither extreme is necessary if one focuses on preemption of laws of nature and natural phenomena as the primary concern.
For example, LabCorp was a relatively simple application of personalized medicine. It involved one biomarker and a reasonably straightforward correlation for treatment. In contrast, most personalized-medicine diagnostics are developed using whole genome expression or sequencing arrays to identify hundreds or even thousands of biomarkers that can be used to diagnose a specific disease state. The machine learning algorithms used to identify these markers do not operate on statistical concepts as simple as linear correlation, which for some of us is complicated enough. Machine learning algorithms employ statistical models to identify different combinations or "patterns" of markers that correlate with a specific disease state. Usually these markers are selected and statistically modeled to compensate for human genetic and environmental variation.
Thus, most personalized-medicine programs are tremendously complex compared even to logistic regression and other simple forms of statistical analysis. They are not simply a reflection of a natural phenomenon; they are an interpretive model of nature. Nor are they analogous to or preemptive of human thought. It would be quite improbable for a physician to be able to sit down with a pen and paper and work out a diagnostic by applying a machine learning algorithm or logistic regression to hundreds of biomarker levels.i
Consider the first person who discovered that human chorionic gonadotropin (hCG) levels indicate pregnancy when they are elevated above a certain level, and assume that the inventor also created a home pregnancy test for measuring the hCG. One could think of this as a simplistic personalized diagnostic device in which a particular nongenetic marker is measured to identify a state of health. The inventor could certainly patent the kit, which would consist of the physical device with its particular components. The inventor should not, however, be allowed to patent the process of testing human urine for an elevated level of hCG and correlating that level with the state of pregnancy. The core of the invention, the fact that hCG above a particular level confirms pregnancy, is a simple reflection of nature rather than an interpretive model. To understand the difference, compare the process of measuring one marker by looking for a simple level to the average personalized invention. The modern personalized invention may utilize hundreds of biomarkers analyzed by means of statistical patterns. Even if the complex process involved in identifying the relevant biomarkers yields a limited number of biomarkers to consider for a relevant patient, that information does not relate directly to anything. For example, with a personalized medicine invention involving only a few biomarkers, each of those markers generally has confidence intervals assigned to indicate the likelihood that the presence or absence of a factor or the particular level of that marker will translate into a particular diagnosis or successful treatment. Once biomarkers are collected from a relevant patient, they must be processed by statistical modeling to determine how the various factors and confidence levels for this particular patient should be interpreted. The complexity and variability of individual humans ensures that a model like this can never be a simple reflection of nature. Rather, it is no more than an interpretation of nature, albeit one that is extremely important in the treatment of a specific disease.
In contrast, the inventor of the method of measuring hCG is looking at only one marker, and it is a marker that is elevated in the same range for pregnant women in general. Thus, it requires no complex modeling and is a direct reflection of a phenomenon of nature. As a result, it would not be patentable subject matter on the grounds that the core of the invention is no more than the discovery of a natural phenomenon.
The hCG invention should also fail on the grounds that performing the test is no more than a mental step. The method does not require complex computer analysis to interpret the data; it requires observing a particular level of a substance and reaching a conclusion from that level. Preventing human beings from looking at information and concluding something threatens to preempt simple thought.
Personalized medicine, with its marriage of biology and computer technology, provides a wonderful opportunity to understand and tease out some of the threads of patentable subject matter. These inventions demonstrate how early misconceptions about the nature of computer programs and the nature of mathematics are causing problems in modern case law.ii
Part of the difficulty can be traced to confusion between the content of something that is being expressed and the language in which it is expressed. For example, we know that laws of nature are not patentable. Some of these laws are familiar to us in the formulaic language in which we normally see them expressed. Most people, for example, would recognize one of Einstein's laws of physics expressed as E = MC2. One could express that same law in prose, however, rather than formulaic language by explaining the way in which matter and energy are interchangeable.
The choice of language is irrelevant.iii We disallow patenting of E = MC2 not because it is expressed in mathematical form but because it represents one of the building blocks of scientific exploration and endeavor. Patenting that law would preempt scientific exploration by occupying a basic concept.
In addition to laws of physics, other things can be expressed in formulaic language. Expressing something in formulaic language, however, does not mean that what is being expressed is a law of nature. Thus, the fact that computer programs are expressed in a formulaic language that looks somewhat like math to the layperson does not mean that the concepts underlying a particular program are analogous to math, let alone analogous to a law of nature. Two things expressed in the same language or the type of same language are not necessarily analogous. Comic books and the Constitution are both expressed in the English Language, but they are hardly analogous. Our focus should remain on the content of what is being expressed and on the preemptive effect that might result from patenting that type of content.
Some unfortunate language in the Supreme Court's Diehr opinion, which flows from this misperception, makes it more difficult to properly separate software claims that should be patentable from ones that should not. In searching for logic to explain why the rubber-molding invention at issue was patentable while other apparently similar inventions had failed, the Court made the following comment: "A mathematical formula as such is not accorded the protection of our patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment."iv
Other courts have jumped on the language to declare that so-called field of use restrictions cannot save software patents.v Even the recent Supreme Court opinion in Bilski wandered into the same territory when referencing its earlier decision in Flook:
Flook established that limiting an abstract idea to one field of use . . . did not make the concept patentable. That is exactly what the remaining claims in petitioners' application do. These claims attempt to patent the use of the abstract idea of hedging risk in the energy market and then instruct the use of well-known random analysis techniques to help establish some of the inputs into the equation. Indeed, these claims add even less to the underlying abstract principle than the invention in Flook did, for the Flook invention was at least directed to the narrower domain of signaling dangers in operating a catalytic converter.vi
It is true, as a general matter, that if one were to claim a law of nature, the claim would not be rendered patentable by limiting use of that law of nature to a particular field. Thus, for example, an inventor could not save a claim to all uses of E = MC2 by limiting the claim to "all uses of E = MC2 in the construction field."
Sliding the analogy over to software, however, involves logical errors. The logic that appears to have been used is the following. Computer programs are mathematical formulas, and mathematical formulas are laws of nature. We know that laws of nature cannot be rendered patentable by limiting their application to a particular field of use. Computer programs, therefore, cannot be rendered patentable by limiting their application to a particular field of use.
This sequence contains a number of logical errors. Computer programs may be expressed in a language that looks like math, and some do involve calculations, but they are not necessarily analogous to mathematical formulas. Most important, they are not analogous to natural laws just because both are expressed in formulaic languages. One must look to the content of the computer program and its potentially preemptive effect to determine patentability.
As described earlier, the term "algorithm" in computer science means a series of steps performed on input data by a computer. This process may or may not raise preemption concerns. Some computer "algorithms" are based on properties inherent in types of input and output data. Such broad, generic algorithms, which can be used on a variety of types of input data, may raise threats of preemption. In other words, if an inventor asks for a patent on a software program that works with whole sets of numbers or entire types of data, such a patent would not be patentable subject matter. Particularly in light of the bargaining potential that would come with such a grant, the patent would risk tying up entire types of data rather than constituting something applied.
This does not mean that all software is unpatentable. Claims to programs that are applied to a specific type of data in the pursuit of particular types of outputs do not present the same level of preemption threat. For example, a personalized medicine algorithm (i.e., series of steps) that employs a specific type of statistical model using a fixed set of markers to produce a very specific diagnosis would not threaten to preempt other methods of performing the same diagnosis that use different markers or novel types of statistical models. Such an invention should be patentable.
Computer programs may be many things, including methods of creating useful models of the world around us, methods of providing interpretations of information, and methods of sorting information. When methods of creating a particular type of model are described at a very general level, they may threaten to preempt the broad activity of exploration. However, when claimed at the level of a specific method of sorting a particular type of information for a particular pursuit, they should constitute an applied invention. Such specificity is the hallmark of what separates unpatentable abstractions from applications of those abstractions in the useful arts in a way that is worthy of patent protection.
* * * * *
i One scholar has suggested that even LabCorp could have survived as patentable subject matter if the claims drafter had chosen a narrower description. See Patricia Dyck, "Post-Bilski Personalized Medicine: At Home on the Range" (forthcoming) (manuscript on file with author) (presenting an empirical survey of the most frequently claimed biomarkers in personalized medicine and discussing problems in allowing claims for sets of biomarkers that are small and not limited to the diagnosis of a specific disease state or condition).
ii I have discussed some of the misconceptions described here in the context of patenting genes. See Feldman, "Whose Body Is It Anyway?" 1400–1402.
iii One could easily argue that all math is invented. It is a human-made method of imposing order and structure on the natural world. For an interesting and accessible discussion of Wittgenstein's view that all mathematics is a human invention and various responses to that argument, see Ludwig Wittgenstein, Wittgenstein's Philosophy of Mathematics §3.1, http://plato.stanford.edu/entries/wittgenstein-mathematics.
iv Diamond v. Diehr, p. 191 (citation omitted).
v See, e.g., In re Bilski, p. 957 (noting that mere field-of-use limitations are generally insufficient to render an otherwise ineligible process claim patent eligible).
vi Bilski v. Kappos, p. 3231.
“especially when the person you are arguing with is not contending otherwise”
If that were the case, I would not have made the post I made.
Alas, it is not the case.
It is your arguments that are fallacious. It is your arguments that perpetually seek to conflate what a rule of law is and what a clue is. It is you that perpetually seeks to induce some type of “the Supreme Court MUST feel this way” and therefore elevate something to the status of a rule of law. And it is the amatuer that keeps on knocking you down. It’s as if you are incapable of learning your lesson.
It is quite embarrassing to see you nailed for such shenanigans time after time.
Annie Mouse: "Understanding the difference between a clue and a requirement is hardly a "tangent" or a "strawman
."
Yes it is, especially when the person you are arguing with is not contending otherwise. You continue to erect strawmen. Endlessly. Annoyingly. Egad, please stop it.
Try to focus.
Try to think.
And most of all, learn to read.
Ned,
Understanding the difference between a clue and a requirement is hardly a “tangent” or a “strawman.”
Labeling the point as such is quite the red herring, as you are the one that keeps coming back to that point, even in your response to me, you state “but it remains interesting“. You are the one, not I, that keeps broaching the subject, so if there are any “tangents” or “strawmen”, they are of your construction.
Be that as it may, your tendency to project your conjecture as law does not fly. Most comments I read try to point this out to you, but you just cannot seem to grasp the idea. It’s as if you really believe that clenching your eyes even tighter will change the world outside of your mind.
Clearly, your “misunderstanding” (and such which can only be on purpose) is why the rank amatuer soundly beats you in your discourses on this subject.
You will not win these battles because you cannot win these battles. You cannot win these battles because your position is not in accord with the law. It may be in accord with how you desire the law to be, the law in your mind, but that is fantasy land, and your repeating your mantra (ad infinitum and ad nauseum) only makes you look like a certain Michael R Thomas.
Mouse, why are you off on tangents, errecting strawmen? No one is contending the MOT is an exclusive test. Even Benson said it was not. Just a clue.
But it remains interesting that the Supreme Court has not found patentable any process that did not pass the MOT. Ditto the CCPA and Fed. Cir. after Diehr. (State Street Bank was an apparatus claim.)
What I have tried to do here is to figure out what the Supreme Court means by "abstract." They have not defined it. So, what was abstract about the Bilksi claims? They were directed to a process that had steps, physical steps, and the claim had utility: It balanced risk. That utility was claimed.
The SC left us hanging, did it not? The claim did not pass the MOT. But having just said that the MOT was not the exclusive test, it would be odd to hold the claims not eligible for that reason. So they just punted. They provided no reasons at all.
Bilski will go down in history as a very bad SC decision.
There is none so blind as he who would choose not to see.
Ned, you keep missing the point (and the critical difference) between what is a clue and what is a requirement.
Thus, you are forever doomed to be beaten at your own game of legal interpretation on the 101 issue by a rank amatuer.
You are suffering a serious case of Peter-Pan-I-Will-Never-Grow-Up denial. Your accusation of AI of pretended ignorance is yet another manifestation of your own game of accuse the other of what you do.
ALl of this would be amusing, if you did not appear to seriously believe in your own BS, or if the joke had not been run into the ground like a million times.
Suffice to say, you have been beaten and thoroughly so.
I hope it is good money you are being paid to play the fool.
The MOT as announced in Benson and followed since.
AI, we have been around this block many many times. I have quoted to you the language in Diehr quoting Benson literally a dozen times. Come on now. Stop it with your pretended ignorance.
“Do they not teach this basic stuff in law school? ”
Please do not assume that Ned is acting like anything but like a paid Shill.
No self respecting actual still practicing lawyer would behave like Ned behaves.
Topic A ( Diehrs DCAT) is under discussion.
Topic B ( State Street)is introduced under the guise of being relevant to topic A ( Diehrs DCAT) when topic B ( State Street) is actually not relevant to topic A
( Diehrs DCAT).
Topic A ( Diehrs DCAT) is abandoned.
(Ned’s Pipe Dream But it’s never gonna happen. ).
This sort of “reasoning” is fallacious because merely changing the topic of discussion hardly counts as an argument against a claim.
(Apparently no one told Ned)
Do they not teach this basic stuff in law school? Seriously
“There is nothing in Diehr to suggest that the Supreme Court in that case would approve the patenting of math applied to business methods as was approved by the Federal Circuit in State Street Bank. And yet, you repeatedly state in your posts that Diehr, or one of the cases following Diehr, held or stated that mathematics applied to “marketplace” processes are patent eligible.”
Wait! I made no such statement. And where did State Street come in this?
We are debating DCAT!! And your rebuttal is MOT !
Silly Ned , have you forgotten what a red herring is already?
Here let me copy and past the definition again. Learn it. Learn it well.
“Description of Red Herring
A Red Herring is a fallacy in which an irrelevant topic is presented in order to divert attention from the original issue. The basic idea is to “win” an argument by leading attention away from the argument and to another topic. This sort of “reasoning” has the following form:
Topic A is under discussion.
Topic B is introduced under the guise of being relevant to topic A (when topic B is actually not relevant to topic A).
Topic A is abandoned.
This sort of “reasoning” is fallacious because merely changing the topic of discussion hardly counts as an argument against a claim.” nizkor.org
Ned: “AI, all it would prove is that the process before the court in Diehr passed the MOT, that they said it did.”
What MOT?
The MOT the PTO used prior to in re Bilski?
The one in the memos saying the Machine had to implement the process?
That MOT?
The MOT the CAFC upheld held as the sole test?
The same MOT the Supreme Court in Bilski ruled was a clue but not the sole or required test and thus struck down as such??
That MOT?
Come Ned you want to walk on hot coals then you have to dance!
AI, all it would prove is that the process before the court in Diehr passed the MOT, that they said it did. When they said that math applied to such process were patent eligible, they did not hold anything more, despite your extreme flights of fancy that they did. The did not hold, for example, that mathematics applied to processes that did not pass MOT were patent eligible. That question was NOT before the court they did not have to answer that question.
AI, you seem to have a very hard time understanding the difference between a court's holding and dicta. There is nothing in Diehr to suggest that the Supreme Court in that case would approve the patenting of math applied to business methods as was approved by the Federal Circuit in State Street Bank. And yet, you repeatedly state in your posts that Diehr, or one of the cases following Diehr, held or stated that mathematics applied to "marketplace" processes are patent eligible.
Again, such a notion is ridiculous and not implied at all from Diehr.
Ned:” I will quote the portion of Diehr that discusses the MOT.”
What would that prove?
No one denies that Diehr’s invention involved machines and/or transformations.
No one denies that the Court discusses this fact.
So once again, what would that prove?
Would it prove there was no concept and application analysis( DCAT) in Diehr?
Would it prove that the Diehr Court made the CAFC MOT test from In Re Bilski the sole and required test?
And if so why would the Court overrule that portion of the Diehr case in Bilski and not say so? Then in fact say Diehr was controlling?
Ned, I am no attorney but such logic just not hold up, or like they say in Texas, that dog don’t bark!
If you want to win the debate you have to cite the exact language of the Court in Diehr that makes the MOT the sole and required test.
And if you want to save face and perhaps your reputation as an attorney then just dont’ say anything else on this topic, ever!
Ned,
The idea that you are throwing AI a bone when he has so totally pwned you is quite amusing.
Are your really that deluded?
AI, beg, like an cute puppy dog, and I will once again throw you a bone. I will quote the portion of Diehr that discusses the MOT.
I am not an attorney and I am even embarrassfor him.
Ned: ” the Supreme Court has left us adrift.”
Yes this is true, for the anti patent crowd.
They have left you without any solid ground for your anti patent, pro dissectionists views.
They have left you without a ban on business methods.
They have left you without a A CAFC MOT as the sole or required test.
In fact, since the CAFC Mot was never used in Diehr, and struck down as the sole and required test Bilski, and the DCAT was used in Diehr, and Diehr has been confirmed as the controLling case by in Bilski, that clearly leaves the DCAT as the ONLY Supreme Court sanctioned test and “controlling” analysis for 101 Subject Matter for the last 30 years!
And Ned my friend, thats a FACT you can’t refute with case law!
Consider yourself sliced, diced, and put in a pie!
HAPPY HOLIDAYS! 😀
Ned: 1) One cannot cite a case for what it does not hold. The proponent of the proposition for what the proponent contends that a case holds has the burden of proof here.
AI: Then please do take you own advice and make proper pincites for allowing Dissection and the CAFC In re Bilski MOT as the required test. Or kindly STFU on that topic.
Ned: 2) Re: Diehr and the MOT, I have quoted the passage to you countless times. Your failure to remember that I have done so indicates that you are suffering some kind of mental disease affecting your memory.
AI: No cite and a purely ad homien attack. Theses arguments therefore carry no weight.
Ned: I did not say that Diehr required the use of the MOT. I said that the claimed process in that case passed the MOT.
AI: By saying Diehr passed the MOT you imply their was an explicit MOT test in Diehr. However what you are really doing is conflating the PTO created policy and CAFC Sanctioned MOT, with a simple fact that Diehrs invention happens to involve an apparatus and a transformation. Very subtle and slick but still no cigar. There is no MOT requirement, implied or otherwise in Diehr and every time you cook up some new way to try and weasel in that idea I am going to bust you for it!
Ned: You contend that Diehr, or one of the cases following Diehr, held that mathematical algorithms applied to marketplace processes were patent eligible
AI: No I did not. This is a Strawman. A straw man is is a fallacy based on misrepresentation of an opponent’s position. Nice job Ned!
Ned:The Supreme Court, beginning with Flook, and continuing through Bilski, has carefully stated that one cannot transform an otherwise ineligible claim into a eligible claim by adding insignificant extra solution activity.
AI This does not address nor prove that the SCOTUS in Diehr, or any other case allows dissection. Furthermore the entire paragraph on extra solution is a Red Herring. A Red Herring is a fallacy in which an irrelevant topic is presented in order to divert attention from the original issue. Nice job again Ned!
Ned:The only claims the Supreme Court has actually held eligible for patenting are claims that have passed MOT.
AI: Keeping in mind what I taught you about the mere presence of machines and transformations in Diehr, and the CAFC required MOT, your above statement proves absolutely nothing. So what if claims that have made it to the Supreme Court have involved machines or transformation. Fact is some have been upheld as SSM, some have not. The fact that any machine or transformation was involved was treated by the Court as a mere clue at best. This can’t be refuted. See the cites:
“The machine-or-transformation test is not the sole test for pat- ent eligibility under §101. The Court’s precedents establish that al- though that test may be a useful and important clue or investigative tool, it is not the sole test for deciding whether an invention is a pat- ent-eligible “process” under §101. In holding to the contrary, the Federal Circuit violated two principles of statutory interpretation: Courts “ ‘should not read into the patent laws limitations and condi- tions which the legislature has not expressed,’ ” Diamond v. Diehr, 450 U. S. 175, 182, and, “[u]nless otherwise defined, ‘words will be in- terpreted as taking their ordinary, contemporary, common mean- ing,’ ” ibid. 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.”
(BILSKI v. KAPPOS)
That is one long intense scramble to regain some semblance of control over a conversation that an amatuer has truly ripped the great Ned Heller apart on.
By the way, Ned, your response is total conjecture on your part without a single proper citation backing anything that you post.
AI, I think the best we can say about Bilski is that the Supreme Court's holding is as clear as mud. In the final analysis, they may have held that a claim was not patent eligible because mathematics, i.e., the balancing of risk involved adding and subtracting numbers, was at the heart of the invention. The steps of placing contracts with people having certain risks, as defined by a number, was indeed ignored. But it is exactly this that is important. Why did they ignore the steps? They are in the claim. As we have discussed, if you take the claim as a whole, how can you ignore these steps? Why are they insignificant? Why are they deemed by the Supreme Court "mere data-gathering" for the mathematical calculation?
We can guess, but we do not know, because the Supreme Court did not tell us.
AI,
1) One cannot cite a case for what it does not hold. The proponent of the proposition for what the proponent contends that a case holds has the burden of proof here.
2) Re: Diehr and the MOT, I have quoted the passage to you countless times. Your failure to remember that I have done so indicates that you are suffering some kind of mental disease affecting your memory.
3) I did not say that Diehr required the use of the MOT. I said that the claimed process in that case passed the MOT.
4) You contend that Diehr, or one of the cases following Diehr, held that mathematical algorithms applied to marketplace processes were patent eligible. That is ridiculous.
Diehr did not hold anything like that; nor did any case following Diehr.
5) You completely do not understand claim as a whole as illustrated once more by your post. The Supreme Court, beginning with Flook, and continuing through Bilski, has carefully stated that one cannot transform an otherwise ineligible claim into a eligible claim by adding insignificant extra solution activity. From Bilski,
"Petitioners' remaining claims are broad examples of how hedging can be used in commodities and energy markets. Flook established that limiting an abstract idea to one field of use or adding token postsolution components did not make the concept patentable. That is exactly what the remaining claims in petitioners' application do. These claims attempt to patent the use of the abstract idea of hedging risk in the energy market and then instruct the use of well-known random analysis techniques to help establish some of the inputs into the equation. Indeed, these claims add even less to the underlying abstract principle than the invention in Flook did, for the Flook invention was at least directed to the narrower domain of signaling dangers in operating a catalytic converter. "
6) Where does that leave us? At least is exactly where I said we were. The only claims the Supreme Court has actually held eligible for patenting are claims that have passed MOT.
What they have left open is what happens to claims that fail the MOT test. By excluding the possibility that the MOT test is exclusive, we still must determine that the claim, considered as a whole, is claiming ineligible subject matter, namely a law of nature, a natural phenomena, an abstract idea, or a mental process. In performing this analysis the Supreme Court has left us adrift. They have not defined what an abstract idea is. They have not defined what insignificant extra solution activity is. They have not defined, clearly, when a mental step becomes the claimed process. In the end, Bilski left 101 jurisprudence and quite a mess. And now in Prometheus we will potentially address the question of when a claim is claiming a natural phenomena.
No. The Supreme Court read the specification to see if it was consistent with the claims.
In their opinion they saw math and nothing more.
When the claims were read as a whole they saw a word problem, and a math equation.
Math = a Court created judicial exception.
Now if you do not agree with the perception of the Supreme Court thats fine. Or even if you agree that Bilski’s invention is math but math should not be a Court created judicial exception thats fine too.
But stop your incessant lying that the Supreme Court advocated thru Bilski, claim dissection or the MOT requirement.
The Court did NOT so hold!
It did NOT happen!!
Dissection IS illegal!!!
AI: “Okay, so taking “Questions” line of thinking, why can’t you just accept and comply with “utility” being met when someone other than the inventor finds the invention useful?”
Because Question’s “line of thinking” does not reflect any legal or judicial “line of thinking”.
And AI, I never said that the legal concept of utility should be “easy” to understand and comply with–I said that it should afford explanatory power and predictive power, and should thus not be arbitrary and should not be inefficient.
This is not sandbox–this is serious stuff. A legal concept like utility may very well be complex, and not immediately “easy” to understand and comply with–but, although perhaps difficult to achieve, understanding thereof and compliance therewith should be as efficient as possible.
It is because understanding and application of legal concepts can be difficult that we have licensed attorneys to assist both the courts, and the parties in a dispute. The minimum requirement of “the law” should be to enable learned professionals to effectively counsel and assist both courts and parties, and to enable courts and adjudicators to decide outcomes through rational reasoning, the validity of which endures and is reinforced over time.
“But this leads to“…
…another try at dissection under yet another disguise?
Alappat somewhat clarified what a particular machine was”
O – do tell us more. And please use the court’s actual language.
And then, tell us the current CAFC take on this (hint: it’s in Ultramercial)
Pay no attention to that man behind the curtain.
Wow!
Okay I know I will get flamed for saying this but Actual Inventor really did wipe the floor with Ned in this exchange..
Test post…
Don’t you feel as if you should edit some of the Dreck that is posted here from time to time? Please give us a break by getting rid of idiots like Malcolm Mooney and the infamous 6K, but it seems as if you have refused to do so because you injured your left arm or something? I would love to discuss things a bit, but the rabid idiots present here would seem to preclude any intelligent discussion of things on their merits, as opposed to drive-by serial cynics. How sad that you allow nasty folks to drive others away from an otherwise interesting discussion. Hit me with the big one Malcolm Mooney! Otherwise go f==off and go get a life! Do you actually spend 6 hours of every day rendering your pearls of wisdom here for us all to read? How sad for you
No, no, no.
Ned is much more than a one trick pony.
He has many games.
Just because all his games end up in one place (Failur), does not mean he only has one trick. One result? Yes. One trick? No.
Ned,
As one attorney to another, please stop – I am embarrassed for you. Have you no shame?
Ned: 1) Diehr did not cover marketplace processes.
AI: Cite? :: Silence::
Diehr uses the term “industry” which as a matter of fact has the same meaning as marketplace. See Dec 22, 2011 at 05:46 PM
3) The process at issue in Diehr passed the MOT.
AI: Cite? :: Silence::
Diehr’s holding never required processes be tied to a machine or transformation. In fact Diehr’s claim would have failed the PTO created and CAFC sanctioned MOT, which requires the machine to implement the process. Diehrs claims require a human operator and mental steps to implement and carry out the process. The fact that Diehrs claims involved the use of an apparatus and computer and transformed rubber was a clue but not a requirement to statutory subject matter.
Ned: No case extended Diehr to “marketplace” processes. Technological processes, perhaps. But we have no definition of technological.
This is a strawman argument which falsely assumes Diehrs ruling limited processes to a specific industry or marketplace, which it did NOT so hold. Therefore no case needed to extend it. Fact is Diehr relied on a wide variety of cases from industry and marketplace diverse as software, agriculture, communications, mining. See the cite history:unk Bros. Seed <450 U.S. 188> Co. v. Kalo Co., 333 U.S. 127, 76 USPQ 280 (1948);Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45 (1923); Cochrane v. Deener,94 U.S. 780 (1876); O’Reilly v. Morse,15 How. 62 (1853); andLe Roy v. Tatham, 14 How. 156 (1852).
Ned:As a whole” does not include “insignificant” steps. What these are have never been clearly defined.
AI: Claims as a whole includes the entire invention because the entire claim is the invention. There are no “insignificant” steps within the invention. No dissection allowed. Post,at 20, 209 USPQ at 21 . “The fact that one or more of the steps in respondents’ process may not, in isolation, be novel or independently eligible for patent protection is irrelevant to the question of whether the claims as a whole recite subject matter eligiblefor patent protection under §101.(” Diamond v. Diehr and Lutton United States Supreme Court March 3,1981 450 U.S. 175, 209 USPQ 1) On this Diehr controls and Flook is cabined. See (Bilski 14)
NED: So, where does that leave us?
AI: With you beaten as usual, with the case law and facts.
AI,
1) Diehr did not cover marketplace processes.
3) The process at issue in Diehr passed the MOT. Diehr did not even purport to extend its holding to processes that did not pass the MOT.
No case extended Diehr to “marketplace” processes. Technological processes, perhaps. But we have no definition of technological.
4) “As a whole” does not include “insignificant” steps. What these are have never been clearly defined.
So, where does that leave us?
Mathematical algorithms applied to processes that otherwise pass the MOT are within 101. Beyond that, we do not have clear authority. Take for example, where the MOT process is used to gather data. Just how is the mathematical algorithm applied?
“let’s drop it between you an me”
LOLZ
Yet another instance of Ned getting bashed and wantign to “drop it” but will keep on his Shilling ways.
1) You are way too polite to Ned.
2) You see where even being polite gets you -> NOWHERE.
So now according to your logic 101 needs to be changed because “utility” is hard to understand and comply with.
Okay, so taking “Questions” line of thinking, why can’t you just accept and comply with “utility” being met when someone other than the inventor finds the invention useful?
I accept it.
I comply with it.
So do all Actual Inventors and their customers.
Why can’t you?
Oh and just so you know DCAT controls and MOT blows check out this cite:
( Bilski) Page 14 : Finally, in Diehr, the Court established a limitation on the principles articulated in Benson and Flook.
::And Down Goes Ned::
Oh and just to nip your conflation and obfuscation game in the bud see the definition of terms in relation to DCAT above:
“Industry” :: the world of trade or economic activity : the everyday world. link to merriam-webster.com
Marketplace:a distinct group of productive or profit-making enterprises link to merriam-webster.com
NED: “Turn back to Diehr just one more time. AI has this DCAT summary. But he does not understand it”
AI: What the he ll ? I invent a cool little mnemonic device, ( DCAT) for teaching purposes. An educational method if you will, and you say I don’t understand it? I don’t understand my own invention? This is the height of arrogance and patronizing bull sheet you spew on here. Look, Ned cut the cra p and conjecture and get to the facts. You wanna debate DCAT with me? Bring it on! Let’s debate DCAT on the law and the facts and nothing but the law and factS. I’ll wipe the floor with you!
As I explained before, the DCAT is a mnemonic device for remembering and summarising the Diehr Concept and Application Test/analysis.
The ONLY Supreme Court sanctioned test and “controlling” analysis for 101 Subject Matter for the last 30 years!
The MOT which you Ned seem to think still rules has only been and remains merely a clue for processes of the type used in the 1800’s. ( I won’t debate this fact.)
The DCAT works exactly like the Court used it in Diehr.
1. You take the claims as a whole, including the concept.
2. Then analyze the claim to see if there is an application to a specific industrial and/or marketplace process.
If the answer is yes you pass 101!
Its worked well for 30 years!
See the cite history as follows:
( Diehr) : It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection. See, e.g., Funk Bros. Seed <450 U.S. 188> Co. v. Kalo Co., 333 U.S. 127, 76 USPQ 280 (1948);Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45 (1923); Cochrane v. Deener,94 U.S. 780 (1876); O’Reilly v. Morse,15 How. 62 (1853); andLe Roy v. Tatham, 14 How. 156 (1852).
(Research Corp) which relies and builds on Diehr: “Indeed, this court notes that inven- tions with specific “applications” or improvements to technologies in the “marketplace” are not likely to be so abstract that they override the statutory language and framework of the Patent Act. ( quotes/emphasis added)
(Ultramercial): which relies on and builds on Research Corp and Diehr: Although abstract principles are not eligible for pat- ent protection, an “application” of an abstract idea may well be deserving of patent protection. See Diehr, 450 U.S. at 187 (“an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection”)
Only when you try to pass off as reality something that needs infinite tape and infinite time.
That should cause any sane person a halting problem.
Now back to your tower.
Wait wait…
link to youtube.com
” so you are saying Einstein was wrong. ”
link to thxforthe.info
I’m just going to let you look into fusion yourself to understand why.
anon, regarding Benson, I think what the Supremes were saying in that case is that the recital of a GP digital computer, even including its components, was in the same sense as using a calculator, Abacus or even pen and paper to perform the math. They said as much.
Alappat somewhat clarified what a particular machine was. In that case, the particular machine was a rasterizer — a component of a graphics display circuit, meaning the claimed rasterizer was dedicated to a specific application. The math, the claimed circuit, or even a programmed computer performing the math, in context, was still a rasterizer: a component of a machine that did have a specific utility described (and claimed.)
Circling back to Benson, the vice in Benson, as described by the Court, was that the programmed computer there was neither part of a larger machine that did have a specific use, nor was it in any other way dedicated to any specific use.
“Turing-complete” shows you for the academic you are.
Don’t look at me. You’re the one with the halting problem.
“Your rheotric is worn through Ned. The gig is up.”
The gig is never up – not until Ned stops getting those paychecks.
“Just a word of friendly advice.”
Meaningless to the shillers.
“and I forgot to mention the entire AIA fiasco.”
Regulatory construction doesn’t fit into his Shiller’s Bible (he’s not paid for that type of shilling).
“and was still ruled not patent eligible.”
Shhhh – you just shot down another of the Shiller’s understated theories.
“That’s why there’s been all this nonsense about how “particular” a Turing-complete desktop computer becomes the second you shove a CD in the cup holder.”
“Turing-complete” shows you for the academic you are.
Back to the tower with you!
Has MOT now been transformed to PMOT?
The test has always required a particular machine. Unless you think that prior to Bilski you could have saved an otherwise abstract claim by adding “using a machine,” at the beginning of one step.
That’s why there’s been all this nonsense about how “particular” a Turing-complete desktop computer becomes the second you shove a CD in the cup holder.
Has MOT now been transformed to PMOT?
(Machine or Transformation) to (Particular Machine of Transformation)
PS – watch out for the conflation arguments about what is a “particular machine” and the inherent tendency to railroad this discussion into an Alappat discussion – which we both recognize as that neither of us agrees with the other on the holding (even though the court expressly used those words).
“However, you are not party to my conversations with AI or with the sock puppets. So, please butt out.”
Ah, but Ned – your conversations misrepresent what has transpired – and since you do not (by choice) answer my questions or address the holes in your theories that I do point out, AI and the sockpuppets’ cause becomes my cause and I do not need to butt out.
What is actually needed is for you to address the questions and points that are put to you. What is actually needed is for you to play less games and to be a bit more accurate in your representations – both of the subject and of who says what about the subject.
If you “play” on the up-and-up, you would receive so much less flack.
Just a word of friendly advice.
AI, Perhaps you are right.
But this leads to the conclusion that the data gathering "steps" are "insignificant," at least in the minds of the SC.
Do you agree?
anon, I think, then, that the SC is not clear on when a claim is directed to a special purpose machine and when it is not.
Just my opinion here, but simply adding details of a GP digital computer to a claim does not make it a "particular" machine. The math is still "using" the computer, but does not define it.
OK, anon, let's drop it between you an me. The record is what it is. However, you are not party to my conversations with AI or with the sock puppets. So, please butt out.
“Anon, everything you just said is true about AI, sockies and at times about you too.”
It’s the “I know you are but what am I?” game.
So third-grade.
“What we KNOW is that a process that passes the MOT is patent eligible. Beyond that, we know nothing.”
Actually, this is technically incorrect. Benson’s rejected claim passed MOT (having a shift register), and was still ruled not patent eligible.
While I may not agree with all of your conclusions, I applaud the application of a structured and reasoned approach.
(and please, this time take this as the coompliment it is meant to be – no matter how much that might rile Malcolm).
Cont’d…
The statement concedes that the disclosures do in fact constitute processes within the meaning of 101, and that invalidity was based upon not a failure to fall within one of the statutory categories, but rather upon a failure to satisfy a condition of patentability. The court acknowledged as much in Flook, when they stated that “It is true, as respondent argues, that his method is a “process” in the ordinary sense of the word. But that was also true of the algorithm, which described a method for converting binary-coded decimal numerals into pure binary numerals, that was involved in Gottschalk v. Benson.”
There is only one “patentability” criterion meaningfully expressed within 101: utility.
Nowhere in Benson does a meaningful discussion of utility occur. Furthermore, there are no particular patentability criteria applied to processes under 101 than arise from the remainder of 35 USC–that is, to land within the “process” category of 101, a disclosure has to be deemed to be simply a process, NOT a “patentable” process. Patentability is taken care of by 112p1, utility, novelty, and non-obviousness.
The court completely missed this point, and instead read “process” as “patentable process”. Instead of keeping patentability criteria separate from a consideration of the statutory categories, the court conflated the two concepts by importing the concept of “patentability” INTO the concept of “process”. Was this justifiable? No. The patentability analyses are separate analyses, and derive from expressly separate statutory language. Was it worthwhile? Certainly not–it merely served to add confusion to the interpretation and application of 35 USC.
Actually, in Flook, it was revealed by the court as actively detrimental to any quest for a return to the literal language of 35 USC: “The holding that the discovery of that method could not be patented as a “process” forecloses a purely literal reading of § 101.” Totally unhelpful. First of all, the court in Benson failed to undertake any meaningful analysis of utility. Second, the court in Flook was for some reason determined to use 101 exclusively: “This case turns entirely on the proper construction of § 101 of the Patent Act, which describes the subject matter that is eligible for patent protection.”, and concluded that “The plain language of § 101 does not answer the question.”
The court totally, and WRONGLY, foreclosed any literal analysis of 101, concluding that it was impossible based upon their flawed “reasoning” in Benson!
This foreclosure was wrong not only because the court’s analysis in Benson was unnecessarily unhelpful, but because the Flook court completely misunderstood 101–on the one hand, the Flook court said that the issue was the proper construction of 101, but on the other hand assumed that the utility requirement had been satisfied (“For the purpose of our analysis, we assume that respondent’s formula is…useful…”). Since utility is a part of 101, 101 cannot be successfully construed without a consideration of utility. On the other hand, if utility was assumed, then the issue was NOT the construction of 101–it was the construction of the statutory category of “process”, entirely apart from the conditions of patentability that had been assumed: “This case…does not involve the familiar issues of novelty and obviousness that routinely arise under §§ 102 and 103 when the validity of a patent is challenged. For the purpose of our analysis, we assume that respondent’s formula is novel and useful, and that he discovered it.”
In conclusion, the Benson court achieved NOTHING “clearly”, as the self-laudatory Diehr opinion would suggest–on the contrary, it only served to obfuscate the concepts found in 35 USC by circularly considering unhelpful rhetorical labels, and then entirely wrongly describing the analytical process that resulted from their application, thereby improperly and improvidently foreclosing any literal analysis of 101.
This is the essence of the trap that we are in. I have pointed the path out, all that remains is for the court to follow it.
Post broken into multiple parts for practical reasons:
“You’re doing precisely the same thing that courts have done, to the great detriment of patent law: you are using a rhetorical device to substitute for expressly articulated concepts, much the same as courts have done in the cases of “printed matter”, “preemption”, “abstract”.
Instead of adding the further veiling of the undefined concept of “mental step”, a return should be made to concepts expressly articulated in Title 8 and 35 USC. As it cannot be derived directly from any of the concepts articulated in Title 35, such a term as “mental step” can only be used in a descriptive manner, to describe the outcome of a test or analysis that rationally derives from 35 USC, and not as a basis for any sort of efficient rational analysis of any requirement of 101.”
This terribly lacking rhetorical process is perhaps best displayed by the courts in the USSC’s Benson opinion:
“Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”
The rhetorical labels “phenomena of nature” (A), “mental processes” (B), and “abstract intellectual concepts” (C) do not appear anywhere within the text of Title 8 or 35 USC. Similarly, neither does “basic tools of scientific and technological work” (D) appear in Title 8 or 35 USC–it is simply another rhetorical label of convenience.
The statement made by the court is tautological–that is, something is A, B, or C if it is D, and something is D if it is A, B, or C.
“The basic tools of scientific and technological work” has no readily-understood content. Is all so-called scientific and technological work the same, therefore having exactly the same “basic tools”? How “basic” is basic? Clearly, some essential, even fundamental, research tools have been held patentable, and by the court’s standard are therefore not “basic tools”, which is IMHO an untenable contradiction. The only interpretation provided for D is A, B, or C, earlier provided by the court in the same statement.
This type of statement gets us nowhere. It is totally unhelpful–it is circular, tautological, self-justifying, and totally internalized. It does not describe any process of step-wise reasoning from any of the concepts expressly articulated in 35 USC–for instance, 35 USC doesn’t anywhere discuss “basic tools of scientific and technological work”–all it requires is that something disclosed according to the rules of disclosure be new, useful (SS&C), and non-obvious.
This type of statement is clearly only useful as a justification for a policy-based decision, not for a decision grounded in any legally expressly articulated concepts.
We now stand at the juncture where the murkiness of these rhetorical labels has landed litigants once again before the USSC. Now is the time for the court to get it right. Forget about policy-based decisions in patent law–it moves too quickly to keep up. Today’s policy is tomorrow’s handcuffs. Stick to a legal basis–it CAN be found within 35 USC, IMHO.
The type of confusion that results from the use of these rhetorical labels is evidenced by the USSC in Diehr, the court having therein explained the Benson opinion as having “…clearly held that new mathematical procedures that can be conducted in old computers, like mental processes and abstract intellectual concepts, see id., at 67, are not patentable processes within the meaning of 101.”
“Even with you, third parties had to intervene to tell you that you simply were not listening to what I was saying during this discussion”
Ned,
Shamefully (and patently) false.
The games, sir – are yours. The mischaracterizations, sir – are yours.
I have been exceedingly clear (and polite) in my dealings with you, and I will not have you twist that around.
And, might add, defining something negatively is cautious, but it does lead to uncertainty.
The SC has repeatedly used the MOT to find a process eligible. Yet, the MOT is not the exclusive test. If a claim fails the test, it cannot be declared ineligible for that reason. One has to still pull out the magic wand and “declare” the claim “abstract.”
The SC additionally has refused to declare what it means by “abstract.” We have puzzled over this here for some time. We can guess, but we do not know. It this just a judgment call in the end like obviousness? Do we simply declare claims that we do not like to be ineligible for patenting? That is what Rader thinks is going on.
What we KNOW is that a process that passes the MOT is patent eligible. Beyond that, we know nothing.
Thank you SC.
Anon, everything you just said is true about AI, sockies and at times about you too. I find it very difficult to engage you folks in conversation because this. You refuse to answer simple questions, you move goalposts, you erect strawmen, or you accuse your opponent of something or another, like having an anti-patent agenda.
Take for example, AI repeated assertion that BMs are patent eligible. That is his position. We spent months trying to explore his position simply because he refused to accept one very simple observation: The Bilksi claims were BMs and were declared not to be patent eligible.
Even with you, third parties had to intervene to tell you that you simply were not listening to what I was saying during this discussion. I repeatedly pointed out the Bilski holding that said that BMs were not categorically excluded. You jumped to the conclusion that it was my position that Bilski held the exact opposite.
I find that 90% of my effort in talking to you folks is trying to fix your mischaracterizations.
And so on and so on. Every conversation. Every one.
Turn back to Diehr just one more time. AI has this DCAT summary. But he does not understand it. When I pointed out the kind of process the SC had in mind was a process that passed the MOT, AI exploded. He simply would not agree. He challenged me to point out where in the case the SC discussed the MOT. Even after I quoted the exact language about 10 times, he only momentarily accepted it. Now he has forgotten his acceptance, because he has gone on to say that Diehr held that the kind of process the SC had in mind included "marketplace" processes, which implies BMs. But that is so far, so very far from the truth as to be laughable.
And so the beat goes on.
“all I can say is that your post is one lie after another, from beginning to end.”
Actually Ned, the statements by “There are new and bigger kids on the playground” and “J Cousteau” are true from beginning to end.
More than once I have implored you to answer straight forward questions that undermine (even devastate) your dogmatic positions. I have provided clear pincites in both the common terminology (e.g. Bilski 14) and the proper legal citation format. I, amongst others, have provided detailed and comprehensive positions for which your only response has been dissembling nitpicks at the edges – and that when you have “chosen” to respond.
I simply do not believe that you are looking for a discussion on the merits. The merits have been presented too many times, by too many people in too many ways for your statement to have any veracity.
Your “choices” have spoken and tell a story that your words here just do not match.
And as when I have attempted with Malcolm, pointing out where the posts lack legal rigor and lead to a degradation of intellectual integrity have only brought insults and baseless attacks back upon me and others. The “choice” of rhetorical games also speaks volumes about any desire to have actual conversations.
Oh and I forgot to mention the entire AIA fiasco. If Ned is really an attorney posting under his own name that had to be pretty dam embarrassing the way the other attorneys schooled him.
“So why what it declared abstract?”
Math.
Asked and answered for the 1000th time.
Now if you don’t agree with the Supreme Court fine.
But stop trying to make out like they did not say why Bilski didn’t get his patent.
IBP: What this means in practice is that a part of a claim can never be extraneous to the scope of that claim, and can never be insignificant for any purpose relating to claim construction, validity, enforceability, novelty, obviousness, or utility.
AI: Well there goes Neds newest excuse for dissecting claims.
IBP: The question therefore cannot rationally become “Whether the old elements are significant”, as you put it–the question is how all of the elements, taken together, inform whatever particular analysis is being undertaken
AI: Whoops, that sounds like Diehrs claims as a whole doctrine. Ned won’t like that!
IBP: In the case of the government brief, the application of my paradigm permits the legal justification of the conclusion that the methodology suggested in that brief is unlawful.
AI: Guess what? So does Diehr. But Ned won’t like that either.
Well IBP, you write way to many words and try too hard to be scholarly, thus, I would never hire you , but in the end we do agree on the conclusions you reached. Although you go a different route to get there, and I simply follow the current law as it stands.
J Cousteau:
Ned can’t win on the facts and case law so he has to resort attacks in hopes of diverting attention from his losing position and exposed agenda.
He would rather have debates about whether AI is a Joke, than about the statute or 101 controlling case law.
He fears such a discussion because it would require pincites.
Rise and fall purely on the holding of each case.
And to his horror, attract objective responses from attorneys that just might point out the fallacy of Ned’s legal arguments and use pincites to show where he is flat wrong on the law.
In fact that is exactly what has happened the last year when Ned made the following arguments and in turn was severely beaten and chastised by the patent community.
Ned Heller has argued:The Supreme Court in Bilski banned business methods.
Ned Heller has argued: The Supreme Court in Bilski upheld MOT as sole test.
Ned Heller has argued:The Supreme Court subjugated processes into the other categories.
Ned Heller has argued:The Supreme Court allows dissection of claims.
Ned Heller has argued:The Constitution froze useful arts “processes” to technology of the 1800’s.
Ned Heller has been beaten on everyone of these arguments with facts and case law. But nonetheless he will make them all again in the New year in some form or fashion. I supposed that is what he is paid to do, and why he known as a shill.
Ned:
Everything you just wrote about me is a l i e.
How about you cite case law to back up your interpretation of the law.
And if you can’t cite case law then make a logical and sound policy argument as to why the law should be changed to the way you wish it to be.
But for G ods sake stop trying to twist and conflate the law to support your agenda, under the guise of trying to understand it.
You are f o o ling no one.
Well, Ned when all you have left to respond with is a pure personal attack, you know you have loss the debate.
:: Case Closed::
Your kicking the ball into the stands and then claiming I have mved the goals posts fools no one.
The goal posts are where they have always been.
Might help if you opened your eyes.
Trollster–
I have grown weary, for now, of continually scoring on your ever-moving goalposts. Readers can judge for themselves where this discussion has gone.
“you are a one-note pony.”
Kettle, meet pot.
Oh, I see you have met already.
“I told the author that he could not do it.” = F(capability).
Silly 6, you do not even recognize what you are saying.
The actual fusion going on around you is hardly “sci-fi,” even though you are appearantly very much in the dark.
“we end up with vastly less E than we should have” – so you are saying Einstein was wrong. He was such a physics hack (next to you of course).
No. I’m not.
Furthermore I never said that “it was not capable”. I asked how you tar ds proposed to do it after I told the author that he could not do it. You tar ds decided some cheery sci-fi would be your explanation. Fine. But that is all that it is.
My “position” aka “reality”, is perfectly “tenable”. Your failure to understand why merely says more about your lack of education.
Although, just to make you happy, I will repeat: You cannot, for instance, “interchange” your office chair for some energy and get as much energy as e=mc^2 would predict from the chair’s mass.
To break this down into language that you might comprehend, neither you (the reader reading this right now), the author, or myself can “interchange” our desk chairs for energy and get what the mass of the chair is back in energy, let alone usable energy. The reasons are many and varied. For one thing, none of us have launch capabilities to get a chair to the sun, none of us have fusion equipment here on earth and none of us will ever get either of the above. For another you would have problems of efficiency both in the collection of the energy and in the actual fusing of the material so you would not get the full predicted E. Also, most of the chair does not comprise “easily” fusible H. A lot of the mass will go unfused in any earth based fusion reaction and even in our sun (for instance carbon iirc requires several solar masses or a supernova before it starts to fuse). That is even if you could get the chair into our sun without it burning up and floating away in solar winds before fusing. Furthermore none of us have a space ship to get to other suns so you don’t get to use bigger stars. And even if you could use bigger stars you still wouldn’t get to do it for other reasons. There are still more reasons, many of them more technical than you can understand, if you can even understand those that I just stated.
And finally, even considering that I was referring to humanity in general not being able to interchange a desk chair for energy, as in governments being able to do it, (this was not my intention as I was talking to the author) no they can’t do it either. And there are reasons there too.
Finally I’d like to add that if you, or any of the other tards on here could give a half decent way of providing such a “capability” then I’d still be happy to hear about it. But spare us the sci-fi.
I note that, if we were allowed to break down the chair into H and other light materials, and toss the rest of the chair’s m out the window for our purposes then sure I have a good way to do it. Dissolve the plastic chair into easily fusible component atoms and then use a nuclear fission apparatus from the government to fuse the light elements together. Wallah. Except o wait, we end up with vastly less E than we should have. And we end up with even less usable E.
Hey sockie, you are a one-note pony. Stop posting, please.
J, all I can say is that your post is one lie after another, from beginning to end.
I would appreciate it, J, if you would pack up your lies and post elsewhere.
Why would you ever assume that the tenants of applying a 112 analysis should be applicable to an analysis of a different section of the law?
Isn’t it natural to assume that most tenants are tenants in common?
How curious, kind newcomer, that you appear to use the same idiosyncratic terminology as a certain regular poster, and the two of you seem to be angry about all the same things.
“I would assume the same to be true of 101.”
Why would you ever assume that the tenants of applying a 112 analysis should be applicable to an analysis of a different section of the law?
If you want such obvious conflation, get rid of all the different sections and titles and have one giant run-on paragraph.
And please, stop with the ridiculous strawmen, the blog has a firecode that all of your straw is violating.
“J, AI is engaged in a holy crusade. Ditto his fellow supporters. In contrast, I want to have a polite discussion of hot topics in patent law, to drill down, to fully understand the law. ”
One massive BS call on that.
Ned, you have run from every “discussion” in the pursuit of your own holy crusade. I know that such pposters as simple questions and anon have both extremely politely put questions to you (complete with proper pincites), only to have you ignore that which you do not want to discuss.
Once again, you employ the tactic of accuse the other side of what you do.
What you now deem as “not permitting” is merely those who are holding your feet to the fire to properly acknowledge the law as it really is (and please, no more lectures from you about how you are a conservative and that you are applying the SC holdings when clearly you are subverting those very holdings because they do not fit your agenda).
Your games are old. Your position is decrepit. And you really do not want any type of discussion – what you really want is a soapbox and a captive audiance to agree completely with your view of how the patent world should be.
You just won’t find it here.
IBP,
“or whatever you want to call it) still must be specific, substantial, and credible. ”
Do you recognize how low the legal bar is for these items?
Even your attempted restatements fall to the same terribly inefficient results when you take a closer look.
6,
Once again you are confusing efficiency with capability. Your original position was that it was not capable.
In that regard you were not correct.
Your subsequent posts in trying to spin out of your original untenable position is what should merit the derogatory “nice try tho eh?”
IBP, thanks.
If one lumps in a single claim elements that do not cooperate, or have process steps in an apparatus claim, etc., etc., the claim has severe 112 problems. A recent court has suggested that one cannot properly construe such claims to determine novelty and obviousness. I would assume the same to be true of 101.
How can one conduct 101 analysis with respect to a claim that is hash for one reason or another? I suggest that one cannot, but deeming some elements insigificant is a way.
Next consider this claim:
1. Apparatus:
an admitedly old player piano; and
a player roll encoded with hip hop music.
Conduct your analysis on this claim, please. It would be useful for us to understand.
IBP, I don't recall that you posted on it recently.
Anywho, I wanted you to apply your utitlity analyis to Bilski. It appears to meet the standard.
1. It is a process. It has a series of steps. It is therefor not abstract under step 1 of your analysis.
2. It has utility — actually claimed. It balances risk in an energy commodity submarket.
So why what it declared abstract?