by Dennis Crouch
A pair of recent Federal Circuit decisions continue to highlight ongoing ambiguities and difficulties regarding the scope of patent subject matter eligibility for software related patents.
-
Bancorp Services, L.L.C. v. Sun Life Assur. Co. of Canada (U.S.), — F.3d —-, 2012 WL 3037176 (Fed. Cir. 2012) (computer related financial claims are not patent eligible).
-
CLS Bank Intern. v. Alice Corp. Pty. Ltd., 103 U.S.P.Q.2d 1297 (Fed. Cir. 2012) (computerized stock trading platform claims are patent eligible).
Both decisions agree on several main points: that the mere inclusion of a computer limitation does not make a claim patent eligible and that the claim form (method, system, etc.) does not change the subject matter eligibility analysis. Although perhaps a revisionist history, Bancorp explains that the differing outcomes are based upon factual distinctions in the two cases:
In CLS, we reversed the district court and held that method, system, and medium claims directed to a specific application of exchanging obligations between parties using a computer were patent eligible under § 101. In faulting the district court for “ignoring claim limitations in order to abstract a process down to a fundamental truth,” we explained that the asserted claims in CLS were patent eligible because “it [wa]s difficult to conclude that the computer limitations … d[id] not play a significant part in the performance of the invention or that the claims [we]re not limited to a very specific application of the [inventive] concept.” Here, in contrast, the district court evaluated the limitations of the claims as a whole before concluding that they were invalid under § 101. As we explained above, the computer limitations do not play a “significant part” in the performance of the claimed invention. And unlike in CLS, the claims here are not directed to a “very specific application” of the inventive concept; as noted, Bancorp seeks to broadly claim the unpatentable abstract concept of managing a stable value protected life insurance policy.
Despite this attempted reconciliation, it is clear that the CLS majority has a different approach to subject matter eligibility questions. Perhaps the key difference is the question of how we think of “the invention.” In CLS, the invention is defined by the claim. In Bancorp and the CLS dissent, the court looks for the core inventive concept as the starting-point for its subject matter eligibility analysis.
It is simply ridiculous that after 40 years of debate, we still do not have an answer to the simple question of whether (or when) software is patentable.
Don’t you mean:
and made it into a new machine that could do something that it could not do before the change.
“We have the examples of two machines in a tent running a program. They appear to be identical. But what if I showed you a videotape just a few minutes before I opened the curtain of the patent owner’s attorney sneaking into the tent and loading the claimed software onto the computer. Just because I own the computer, am I the infringer?”
Duh, Yes.
Gee someone CHANGED my machine and made it into a new machine that could not do something before the change.
Ned, this is lame, even for you.
Try again.
“gets down to the reality, a programmed computer is undefined”
Wrong. See Alappat.
Any post by Ned on this topic, complaining about what Anon does not answer is a joke. Ned, you left too many questions of his unanswered.
It is downright duplicitious for you to even attempt the high road here.
Anon laid out a three step path for you to take and you jumped ship after answering the first question because you saw where the logic was going.
Stop trying to rewrite history.
You have no place at the table of this discussion.
patent eligibility versus patentability
The aim of law should include clarity.
It is the sophists’ delight when law is muddled.
Not all machines are new and useful.
A machine replicating Ned would be new but not useful.
That’s a novelty issue. Novelty has no place in 101. That’ s what Diehr was about. Prometheus was about integration. Learn to read case law already.
“You mean that 101 does not preclude patents on old machines.
102 and 103 do, however.”
Yes, that’s correct.
all machines are new and useful, whether they are novel and non obvious is a different question.
“The term bullet itself is limiting to a gun.”
No. It is not.
Besides which, your point was that the context must be claimed.
US 8,225,718 issued July 24, 2012
Claims:
1. A lead-free, non-sintered frangible bullet consisting essentially of a copper powder composition of 20% to 60% atomized copper powder and the remainder electrolytic copper powder.
2. The frangible bullet of claim 1 wherein the atomized copper powder is chosen from the group of water atomized, air atomized, and a combination of water and air atomized.
3. The frangible bullet of claim 1 wherein the fragmentation of the bullet is less than 5 grains.
No claim of “gun.” No context of “gun.” The component on its own and by itself: PATENTED.
Ned Heller. Face it – you are wrong.
“it can be done by a group of people just as well, albeit very, very slowly.”
Yes, because that is what is understood in the art.
/off sarcasm.
Les, how would your respond to this
I disclose a person holding a calculator. He presses the digit 1. He presses +. He presses the digit 2. He presses =. The display shows 2.
The claim is
1. A programmed computer, comprising:
means for adding a first digit to a second digit to produce a result, wherein the computer logic is encoded with a number system that provides that the digit 1 when added to the digit 1 provides a result of 2; and
means for displaying the result.
Does claim 1 defined a new computer when every computer since the dawn of time produced the result 2 from adding 1 + 1?
In discussion with anon, I cannot get him to distinguish between programming a computer and a computer that is physically altered to do something different. In the example, the computer is used to do the math. The novelty, if anything, is in the math, and the computer is not new.
When anon speaks of a programmed computer, I ask, where is the program? Can it be on a server located on a different planet? Can it be in the same room. Who has to load the program. What does he mean? He never answer the question.
We have the examples of two machines in a tent running a program. They appear to be identical. But what if I showed you a videotape just a few minutes before I opened the curtain of the patent owner’s attorney sneaking into the tent and loading the claimed software onto the computer. Just because I own the computer, am I the infringer?
When one gets past the sophistry and gets down to the reality, a programmed computer is undefined. We do not know what it means, except that a computer is programmed at some point in time. The law has not defined just how and when that happens.
You have got to be kidding. The term bullet itself is limiting to a gun.
Oh (number 1):
Oh. So when I load configuration bits into an FPGA (Field Programmable Array) chip for programmably making that chip behave one way as opposed to another, that’s not “software”? That’s something else?
Oh (number 2):
Oh. So if I execute multiple threads simultaneously in a parallel processing machine (as opposed it being a “series of steps”), that’s not “software”? That’s something else?
Oh (number 3):
Oh. So if I climb the stairway to heaven (it has a series of steps) and along my climb I notice and process with my mind some advertisements posted on the rails (which is data retrieval and algorithmic processing thereof), and I scribble graffiti on some of the posters (data storage) and at the top of the stairs I find a slide back down to where the heck (for those who graffiti-ed on the way up, it being a branching operation), that “is” software?
Oh (number 4):
Oh. … creating “micro-code” for a data processor … never mind
Oh (number 5):
Oh. … creating code in a hardware descriptor language (HDL) … never mind
Oh (number 6):
Oh. … creating Hypertext Markup code (HTML) … never mind
It’s all crystal clear now. Thanks.
(Gratitude is with sarcasm, of course)
“Have no utility out of context, the context must be claimed in some fashion”
That is not the law.
See amongst other things, bullets and tires. Guns and cars need not be claimed.
Components need not claim what they go into.
new and useful machines are patent eligible.
..Umm If the conventional step is prior to the recitation step and then it can’t be added after the recitation step at the same time. Your statement is illogical. You are thinking too hard. Or maybe you really are the blogs dumbest Troll.
Computers are a machine. All machines are patent eligible. See, 35 U.S.C. 101
Did the Court or Congress ever exclude business methods? If not they remain an eligible process.
Please provide an example of a claim that is a purely mental business method. Or just stop trolling, period.
No, Fish, that was the argument made by the Govt. in Prometheus. Whether a claim is directed to a "new" machine or process is a 101 issue. The Prometheus claims, after all, passed the MOT, but that part of the claim was OLD.
Did you see my post to Max on that issue where I quoted from Curtis? I think abstract is something that merely states a principle with requiring any inventive means or process as in O'Reilly v. Morse, or something that involves the manipulation of mental concepts. (The new part of Prometheus was, in the Morse sense, abstract as well as directed to a law of nature.)
“However, the statute does not authorize, even in 101, patents on old machines.”
You mean that 101 does not preclude patents on old machines.
102 and 103 do, however.
And exactly what is an “abstract idea?”
The Wares: "Why do you say "Avoided: Are programmed computers NEW machines." ?This was not avoided at all in Alappat, and was directly held to be so."
Mr. Wares, with all due respect, do you know the difference between dicta and holding?
That is why, when Alappat comes up, I think we all need to know the facts of the case. The case had nothing at all to do with a programmed computer, except as a MPF equivalent, and even then, only in the context of the claim that specifically limited the claim to a graphics unit for a display. A programmed computer out of THAT context was not claimed.
The court went out of its way to limit its holding to the context. It noted that what was being claimed was a rasterizer, and that was patent eligible regardless that specific circuits or a programmed computer was used to calculate. The inputs were specific. The output to the other parts of the graphics systems was claimed. A programmed GP digital computer was not at issue.
ONLY WITH ignorance of the law, or with an agenda, can one seriously contend that Alappat HELD that a programmed digital computer without more was patent eligible. If that were the law, Benson would have been decided the way its decided in In re Benson, a case written, of course, by Rich.
Les, regarding definitions, I think there is a SC case on point. However, even if there is not, Chakrabarty seems close: anything made by man. I think it also must be relatively fixed, as a copy in copyright law required fixation in some readable media.
As to a bit? A bit, output by a mathematical algorithm that is tied by the claim to be used to modify a display — yes.
Mr. Business Method, resisting "business methods ARE patent eligible" is not by itself an agenda. The folks who use the phrase, rather, have an UNMISTAKABLE agenda.
Piece, true, but beside the point. The material is useful far beyond the computer application.
But programming, comprising a sequence of instructions, is useless without the machine. Have no utility out of context, the context must be claimed in some fashion.
Mr. Laugh, when on the battlefield you charge, it is good to know where the enemy is.
Mr. get it over, let me remind you as well that the refusal of a categorical exclusion is not to be construed as a categorical inclusion. Programmed computers are not categorically excluded. But that does not mean that programmed computers are categorically included.
Are you saying that I can patent a claim that simply recites a new concept and adds an old conventional step prior to the conceptual step?
Okay, then here’s what software is:
Software is a series of steps, consisting of, at it’s most basic level, data storage, data retrieval, algorithms performed on that data, and branching logic. All software boils down to those four things put together in different ways. Different software languages are simply different implementations of those things, making certain groupings of them easier or harder. Hardware has many more components, different materials, different purposes, different ways of improving.
Software requires hardware to be executed on that hardware as a tautology, but it is no more an equivalent of that hardware than a novel is a series of pages. A novel may be printed in a book, it may be on pages, but the thing in itself is the information, not the physical item itself. Much the same way there is no reason software requires hardware – it can be done by a group of people just as well, albeit very, very slowly.
Programmer Dave:
It is not cricket to hide behinds a secret definition of “software” that boils down to “I know it when I see it” and “it is as I, the ultimate umpire/ referee personally call it or not”.
I respectfully repeat my assertion above that “software” is a near meaningless noise that people bark at each other while having no agreed to common definition of the noise.
So when you start arguing about whether something represented by a barked-out, meaningless noise is patent eligible or not, you are engaging in a argument over mere noises and nothing more.
If you have this deeper, greater “understanding” of what “software” is, then please by all means share your deep understandings with those of us who apparently have no idea what they are barking about.
As someone who understands how to read, “is” is not “is equivalent.”
You may return to slashdot now.
“Man, this blog has the d—best trolls.”
It sure does. MM, please do everyone a favor and personally eliminate the d—best troll by stopping your posting.
Thank you.
As someone who “understands the art” software is not hardware any more than a book is pages.
Easily done. However to do it, we need to know your definition of an article.
Is, in your view, a bit in image data an article?
Click
Click.
“I never said”
Translation: I just want to QQ because patent law isn’t what I think it should be.
That’s what I thought.
You probably don’t know or care what your “click” says about you.
Funny how you don’t want to learn MaxDrei. I guess it is true what they say about you, that you are here only to shill for the EP.
Too bad that you will not apply yourself to understanding US law. It’s too bad you keep on wanting to post on things you don’t want to understand. Rather foolish.
“If Congress wanted to overrule Benson, they could have done so, and can still do so.”
Same with Bilski and business methods.
But that won’t stop you from your ad nauseum anti-business method posts, will it you two faced clown?
Click.
“ however, in some fashion the claim should be limited to the machine”
There is no basis in law for this thought.
Let’s say I invent an ultrathin material that cannot be scratched and does not smudge. It would be a novel and non-obvious improvement item in its own right as well as a novel and non-obvious improvement as a touch screen for a computing device.
Do you really think that I am limited to claiming my component to including the machine as opposed to being a part of a machine?
I see bootstrapping and sophistry alright. Just not by Judge Rich.
“what if “useful arts” were to get defined by SCOTUS, and end up MORE restrictive on inventors than the EPO’s “technical” test?”
For someone who found this too boring to shut out their drive to learn and have an open mind towards learning, you keep on coming back to this.
Your current version of useful arts being more restrictive than technical is a silly attempt at trolling.
Useful is greater than technical.
I asked you to accept that there is in fact a difference and to explore that difference. You say often that you are here to learn and have a a mind open and willing to learn.
Are you ready yet to prove it?
Fixing the field of the invention is important and interesting. I’m not an accountant but why shouldn’t accountants conceive new and non-obvious computer-implemented accounting procedures? Their field is quite “technical” too.
That said, for me accountants are not practitioners of any of the “useful arts” contemplated in the patents clause. I think SCOTUS in Bilski ducked out of addressing that question. To rely on “abstract” as a test of eligibility is in my view a cop-out. But (the horror, the horror) what if “useful arts” were to get defined by SCOTUS, and end up MORE restrictive on inventors than the EPO’s “technical” test? The prospect is, for some readers here, too awful to contemplate. I wonder whether that is why SCOTUS bottled out.
As to deciding obviousness, the EPO makes it child’s play by setting the following ground rules:
1. Every patentable invention can be presented as the solution to a problem.
2. Mandatory is to define the subject matter sought, in a claim, in terms of technical features.
3. So the feature combination of the claim has to be effective to deliver the solution to the problem.
4. And thus it is, that a claim that merely recites the problem to be solved is, for the EPO, unclear because it fails to recite the features essential to solve the problem.
MM your examples look to me like obvious statements of an obvious problem to be solved.
“What about purely mental business methods?”
There is no such thing.
Now you may continue to dance the mud into straw.
“Mr. Expert, I must say that I am impressed with the skill you have just demonstrated in missing the point.”
That is high praise. If there is anybody who knows what it means to be “missing the point,” it is Ned Flanders.
“See, Bilski. They reversed.”
Apples and oranges. And you claim to have programmed in your day? Sure ……..
“May I suggest that Benson remains good law, and if and when the Federal Circuit ever does authorize claims such as the Benson claims, they will summarily reverse.”
You need to take another look at the actual claims of Benson. The claim passes the MOT test with flying colors. Today, it would sail through the Federal Circuit. The problem is that you are so in love with the holding that you haven’t bothered to look at the facts and how badly they were construed by the tree-hugging Douglas.
“As I have suggested before, the problem with the Benson-deniers is that they would have us believe that using a calculator to calculate 1+1=2 makes the calculator a new machine.”
Ah … no. You created that strawman all by yourself, and you don’t deserve another lesson in software today.
One last thing, let me repeat (because you oftentimes seem to forget):
“It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.”
True to form, the lies keep coming from Ned.
Programming is NOT adding two numbers on a computer.
What a fraud.
Why do you say “Avoided: Are programmed computers NEW machines.” ?
This was not avoided at all in Alappat, and was directly held to be so.
“The invention should be defined by the claim itself and not by any core inventive concept for purposes of Section 101 as well as Section 103.”
Well, if you are going to go by the case law, then this is exactly right.
The more cases that go up to the Supreme Court the more ground Ned loses.
Bilski, upholding Business Methods as patent eligible and reaffirming Diehr’s Concept and Application as controlling precedent while overturning M o T as the sole test.
Then Prometheus buttressing Diehr’s claims as a whole approach by introducing “Integration Analysis” while relying on Diehr as the case most on point.
Followed by the USPTO Adapting “Integration Analysis” in it’s official Office Guidelines for the entire Examining Corps!
Thus forcing Ned to retreat and regress back to overturned case law and discredited positions.
Poor Ned.
He just can’t win for losing!
Mr. Heller:
Need I remind you that State Street relied on Diehr and Diehr has been relied on and upheld twice by the Supreme Court as controlling precedent. See Bilslki, and Prometheus. The only one relying on overturned case law is you.
True!
Everytime he throws out that 9-0 lol, he self defeats and awards a score to 101 Integration Expert.
It’s hilarious that he is so clueless.
MM is on a record breaking pace for self defeats!
Hell MM:
No, I am not saying that.
You can absolutely patent such a claim.
Here is how.
1. You define and describe the concept in your specification.
2. You reduce the concept to a series of step(s) old, new, or in combination. In other words, claim it as a process.
3. Then you integrate the concept into the process as a whole by adding one or more steps that narrow the scope of the claim so that others are not foreclosed from using the concept!
4. Then you view the claims as a whole and presto it’s done! You pass 101!
Oh and the best part is you do not need to dissect
( strip away and then ignore ) steps!
Nor do you need to make up inventive core concepts and subjectively declare the claim is pre-empted, ala 6.
And of course there is absolutely no machine, transformation or technology requirement, ala Ned.
Neat how that works huh MM?
Let me know if you have any more questions. I am glad to help 🙂
See : “http://www.uspto.gov/patents/law/exam/2012_interim_guidance.pdf”
It’ eligible until someone says it is ineligible.
Name one authority that has said Business Methods or software is ineligible?
:: Silence::
“tieing the definition to the level of skill in the art”
LOL – nice attempt at smuggling back in the Flash of Genius. Oh Wait, Congress explicitly tossed that out. Oh shucks.
And what MM doesn’t realize that he lays the seeds of yet more self defeat given that the ordianry skilled artisan in the bio arts is PHD level and the higher level kills just aas effectively those “inventions” like cut and paste dna strands.
MM has this little problem of not being able to think ahead. Sort of like when he celebrates early and only later does his oh shtt routines.
Too funny.
It is unmistakable whose agend is being pwned!
That’s certainly true, but not in the way that suckie imagines it to be true.
That’s some serious shoveling and reconstructive malarky.
It would be really sad if you really believed what you are shovelling Ned.
“when you rely on overruled cases”
LOLOLOLOLL – like MOT?
Except Prometheus says, “Integrate”, NOT segregate.
Case Closed!
:: Bangs Gavel::
Ned, So might you. Your current efforts are abysmal and you are getting wiped all over the floor.
Sorry Ned, the post above was taken word for wrod from your anti-business method post with medical methods exchanged and Bilski and Prometheus exchanged.
The point fo the matter is that it is your ridiculous statements that betray the person that has an agenda.
Compare the post at July 30, 1:39 PM and at 6:05 PM. It is unmistakable whose agend is being pwned!
I wouldnt troll the master troll, but the questions you ask have been answered a thousand times already.
And yes answeres you don’t like are still answers.
Sorry about your neighborhood going up in smoke from the Prometheun fires. Perhaps you should have been trying to put the fires out instead of throwing kerosene on them.
Nice attempted sidestep from the Holding /Dicta that I was talking about. YOU ARE FOOLING NO ONE.
“The flaw in the logic comes in the naked assumption that a programmed computer necessarily always creates a new machine.”
It’s not a bug it is a feature.
See the holding in Alappat.
That’s right, the holding that you must accept!
Man, does it svck to be you.
And by the way – nice straw with the pressing 1 – do you really think that that is programming? What a patehtic strawman!
The only sophistry on display is Ned Heller and his instance that he does not ahave an agenda.
Ned, Why don’t you get help from 6 and MM, they are after all, on your side of the GD war and they have largely left you abandoned to die a thousand deaths with your bogus views.
LOL – Ned your agenda is front and cener and is being decimated. You feebly try to shift it to “my agenda”.
BZZZZZZZT.Your attempt fails. Nice try to deflect from the fact that your view of Alapppat is wrong and that Alappat detroys the dicta of Benson.
“We do not so hold” – MUST lovve that line from Benson!
Dicta? There again we have the problem.
Let's go back to Rich's syllogism:
1. Machines are eligible.
2. Computers are machines. Computers are eligible.
3. Programmed computers are computers which are machines and therefor are eligible.
That is Rich's position. He avoids "new." However, the statute does not authorize, even in 101, patents on old machines.
Benson had before it a method for programming a computer. The SC held it ineligible. Therefore, all methods of programming a computer cannot be eligible. Ergo, all programmed computers cannot be eligible.
The flaw in the logic comes in the naked assumption that a programmed computer necessarily always creates a new machine.
Take my simple example of 1 + 1 = 2. Pressing these 1, followed by +, followed by = into a calculator to get an answer does not make the calculator a new machine. But all programs are of this exact nature. They consist of data and instructions. One supplies the ALU two numbers and then instructs the computer to add. It is exactly the same thing. Exactly. The machine itself is unchanged.
Now we may debate the forms of data and program entry. They differ. But not in kind. Writing the program on a piece of paper is the same as typing the code onto a punch card is the same as loading it from a floppy disk. The program then executed and the result displayed. It is the same no matter what form of data entry.
The sophistry of the Rich's position is plain for all to see.
“I support this notion, entirely.”
Except when you get busted for slipping up and spilling your agenda that all business methods are categorically ineligible.
D_ammm that happens alot.
But nice try to backpeddel out of the boatlaod of crrp you landed yourself into on this thread. You are still going to need one h311 of a shower to remove your stench.
MD the meaning of “technical” should flex
No doubt. That’s just a simple matter of tieing the definition to the level of skill in the art and the level of skill in the public at large at the time of filing.
For example, a “technical” solution to a problem would be one that an ordinary skilled artisan could solve but an ordinary unskilled artisan could not, given a reasonable amount of time.
You can kiss 99% of computer-implemented and business transaction “inventions” out the window.
Problem: faster way to identify birds
Claimed solution: use a computer
FAIL
Problem: better way to target ads to consumers
Claimed solution: collect their information with a computer
FAIL
Problem: keeping track of MRSIQ bond rates when the SRC level falls below the Terry-Longsimon threshold
Claimed solution: use a computer to retrieve, store and process the information using the appropriate algorithms
FAIL
etc.
Regarding 1, Bilski’s HOLDING was that single particular exmaple of a claim was abstract, regardless of the category – BZZZT you lose.
Regarding 2, programmed computers are eligible: see the thousand upon thoousnad of patents on such – BZZZT you lose again.
You got to do better than that Ned. I am embarrassed for you.
Another great flail by Ned.
Ned, What’s the ocst of tea in China?
That has as much to do with the current discussion as your question.
But nice attempt to dive off of the rails.
But I do not claim what you say I claim. I have never said that Bilski held that BMs are categorically excluded. I note the actual holding and I further note the reasons given by the Court for not making a categorical exclusion: to wit, that there was not good, accepted definition of "business method." Without such a good definition, creating a categorical exclusion would not make sense.
I support this notion, entirely.
“they are not entitled to ignore the holdings of the Supreme Court.”
But they are entitled to ignore the dicta of the Supreme Court. Just like Judge Rich did.
Man, that article on holding and dicta really has com ein handy. Ned, maybe you should read it again!
No actually I think it is closer to defusing your bogus logic of a single example claim dooming an entire category.
Man it svcks to be you, you cannot even hijack the thread and get away with it.
Nice strawman Ned. No one is arguing otherwise.
But thanks for throwing out the obvious and attempting to gather that as a point for yourself in this debate (sorry you do not get the point).
Not pointless. Facts are important to determining the holding of a case. Your absolute refusal to discuss the facts of Alappat demonstrates your agenda.
Mr. Defeated, are you the one who continues to say
1. Business Methods are eligible; and
2. Programmed Computers are eligible.
Regarding 1, see Bilski.
Regarding 2, see Ultramercial, GVR.
Mr. Handle,
Your turn.
What figure in Alappat's specification disclosed the claimed rasterizer?