On Monday, the USPTO is expected to announce the location of its three new satellite patent offices: Denver, Colorado; Dallas, Texas; and San Jose, California. A fourth satellite office sited in Detroit, Michigan was particularly identified in the 2011 America Invents Act and is slotted to host a grand opening event next week (July 12). The USPTO’s primary office will remain in Alexandria, Virginia – just outside of Washington DC. The satellite offices are expected to each house around 100 patent examiners and a handful of administrative patent judges. These offices will also serve as check-in centers for examiners taking part in the PTO’s popular telework (work-from-home) program. In addition, the satellite offices are expected to include high-quality teleconferencing equipment that patent applicants can use to conduct examiner interviews and argue appeals even when decision makers remain in DC. Expect for the three new satellite offices to open in early 2013.
Although not tremendous, the new satellite office locations will serve as a boon for local patent attorneys and also local high-tech entrepreneurs. A major open question is whether the USPTO will have the ability be able to hire and retain high-quality electrical engineers to staff its silicon valley patent office.
The USPTO continues to hire new patent examiners, administrative patent judges, and others. In particular, the Office currently has a “critical need for electrical engineers” but is also hiring mechanical engineers and chemistry gurus.
Step number one: Decide for yourself whether you believe that we must compare the claim to all abstract ideas of ever or whether we must compare the claim to only the “concept” (aka abstract idea) you have already recited.
“most people live in flyover country that your wife looks down upon”
sure of that?
West coast + midatlantic + northeast not a majority do?
nor a plurality over flyover country?
Alright Mr. Wheeler, since you are super duper interested in this and you’re willing to put down your reasoning in a somewhat legible form, allow me to guide you into the correct conclusion.
Exactly which constitutional right do you think has been violated in your proposed Bivens action?
As far as I can tell, you do not have a consitutonal right violated. Mere “not following the law” is not enough.
Has anyone ever considered a Bevins action against a patent examiner that is clearly failing to follow the law. Frankly I am tired of having to have these round about discussions where it is clear on the record that a feature is not taught in a reference and the rejection does not address a claim limitation and the examiner will not clearly articulate where in the reference support for the rejection is found. Just once I want to subpoena the examiner, the examiner’s SPE and the technology director and have them explain themselves in this situation.
“The “dazed and confused” defense plays poorly to your credibility.”
Credibility? What credibility?
Shilling (at least Ned’s version) does not require credibility.
“Different subject.
Different thread.
Different poster.”
It’s simple, really. Ned doesn’t know what he is talking about (the subject doesn’t matter), doesn’t know which end is up (the thread doesn’t matter), or who he is having a conversation with (the poster doesn’t matter).
He posts for one reason and one reason only: to shill.
That he sxcks at it also doesn’t matter (at least to him).
Compare
“You have your reply lines crossed again Ned Heller” by Not The End Of The World
with
“If you crossed subject matters, well, then, that explains it.” by Ned Heller
WWW
TTT
FFF
Ned, I’ve told you several times that the way that you read comments and post on topics causes problems for everyone involved, especially you. When will you stop causing problems like this?
The conversation on rights and law was with Wordplay on the thread link to patentlyo.com
Different subject.
Different thread.
Different poster.
I don’t see how a different poster posting on a different thread addressing a different subject causes an “e-mail reply” to cross. I don’t see how you can even begin to blame anyone else for what is obviously your own “screw-up” when it is the very type of “screw-up” that has happened before and that prompted me to ask you to change your posting habits several times.
The “dazed and confused” defense plays poorly to your credibility.
You say that you didn't say what you did say?
Sent from iPhone
“Ned can find obscure journal articles to support an off-beat position on Holding/Dicta to argue about Supreme Court judicial exceptions, but cannot find the Ultramercial claims in order to meet the challenge of applying the Office’s patent eligibility guidelines?
Lame to the extreme.”
Exactly. Ned is posting new CAFC decisions on others threads, that ironically defeat his agenda, but can’t find the Ulramercial claims and USPTO Integration Guidelines posted in this thread. It’s a pitiful excuse.
“Mr. Not, I only see your post in the e-mail. If you crossed subject matters, well, then, that explains it.”
What is one more lie amongst many lies? You say I crossed subjects, but that is not possible since I have only spoken on one single subject. I READ on several subjects and this I am informed on your posts on different threads. My only posts are here. Your posts are all over. It is more than obvious who has screwed up here, and it is not me. You blaming others for yet another of your mistakes is just so typical of posting habits.
Bad habits.
“6, you are a pvssy”
The biggest one ever!
After all that tough talk about knowing more about integration and bragging ( lying ) about how he has done it for 4 years on this blog….bla bla bla..turns out 6 is just talk.
I called the new patent offices in Denver and Silicon Valley, but Dallas is a surprise. Makes sense, though. I confess that I don’t see much difficulty for the USPTO in locating electrical engineers for its NoCal office. Retaining them, however, might be a different issue.
Mr. Not, I only see your post in the e-mail. If you crossed subject matters, well, then, that explains it.
“Mr. Not, if not from God, then whence these immortal rights?”
You have your reply lines crossed again Ned Heller. The immortal rights dialogue is not a part of the current discussion.
My, how silly you are that you cannot keep from bumbling over yourself in your haste to attempt to hide from the challenge of applying the Office’s integration guidelines.
False?
Mr. 101, what is false? I am truly puzzled by your attack here.
Mr. Not, if not from God, then whence these immortal rights?
“Mr. Not, all I really need is a brief description of the underlying process.”
Mr. Heller:
I know you are only repeating this false assumption and fallacious statement to be a troll A Hole.
But I am going to continue to reply with the facts based on the case law, as it only strengthens the “integration analysis” as the emerging new standard for 101 Statutory Subject matter.
While at the same time further highlighting what a troll A Hole you truly are.
Now, with that being said, there is no “underlying Process” mentioned in Prometheus or Ultramercial cases. There is only one process that goes from concept, to application, to integration. ( See Prometheus and Diehr )
Oh, and on a personal note, it must be very satisfying to know the legacy of your mentor, teacher, and hero, Judges Giles Sutherland Rich, lives on.
“immanentizing the eschaton”
Rather the reverse, I think.
Yet another (boring and stale) game. Accusing others of what you are doing.
Pay attention to the “Not” in the moniker.
The substantive silence on what the Office has posted as its guidelines is most revealing.
What, are you too immanentizing the eschaton?
Huh? False?
Mr. Not, all I really need is a brief description of the underlying process.
I see.
Ned,
If you want to step away from the challenge and concede the point to the 101 Integration Expert, just do so.
Silly games only make you look silly.
“Mr. 101, I don’t know. That is why I asked you.”
Mr. Heller: You asked a question with a false assumption. I asked you for proof of that assumption. Now it appears your latest evasionary tactic is to play d u m b. How pathetic.
Ned can find obscure journal articles to support an off-beat position on Holding/Dicta to argue about Supreme Court judicial exceptions, but cannot find the Ultramercial claims in order to meet the challenge of applying the Office’s patent eligibility guidelines?
Lame to the extreme.
“Steps 1-11. I don’t have those. Could you list them?”
Mr. Heller, I have already posted Ultramercials claims, steps 1-11 in this very thread in response to your post at least twice. Not to mention you can get the claims yourself from the internet in 1.2 seconds. I am not playing games with you. If you are serious you will respond to my post(s) or you can just wilt and fade away like 6.
Steps 1-11.
I don't have those. Could you list them?
Mr. Heller:
How many time are you going to ask me the same questions? It’s like running around in circles. Nonetheless I have answered them for you again just to show you and your good friend 6 an example of being accountable in a debate and backing up what your say. I don’t run away. I don’t make excuses. My iPhone never eats my homework.
Mr. Heller: “I am asking you to put some flesh on the bones of the statement.
1) What is the process into which the abstract idea or concept is being integrated?”
Mr. 101: The steps 1-11 of Ultramercials claims.
2) Is this process patent eligible to begin with?
Mr. 101 : Yes, see 35 U.S.C. 101, 102 (b). And it is applied. (See Diehr on application ) However Prometheus says there needs to be something more to make it an “inventive” application. (See Prometheus on Integration )
Mr. Ned Heller:
“3) Finally, what is the abstract concept in Ultramercial which is being integrated?”
Mr. 101: using advertising as currency.
The Ultramercial claim would pass “the integration analysis” as it is a process that includes the concept of using advertising as currency as a limitation, with additional steps that “integrate” the concept into the process and are sufficient to narrow the scope of the claim so that others are not foreclosed from using the concept of using advertising as currency in different applications. (See The USPTO New Guidelines for Authority.)
Mr. 101, I don't know. That is why I asked you.
6, you are a pvssy.
The we are not agreed and I will not hold your hand through the next step. When we are agreed we will proceed and not before.
Mr. Heller: “Mr. 101, I think you are ignoring the fact that the Supreme Court held that the process into which the law of nature, mathematics, abstract idea, etc. is integrated must itself be patent eligible. ”
Mr. 101: No, I have not. No one is making that argument. You are erecting a straw-man.
Mr. Heller: “The problem in Flook and in Bilski was that the mathematics was integrated into a process which itself was abstract.”
Mr. 101 : Wrong. The problem with Flook and Bilski is that they are nothing more than an algorithm( Flook ) and a math equation ( Bilski ). And although math equations are technically a new and useful process, and would normally be statutory subject matter according to the definition in 35 U.S.C. 100(b), the Supreme Court has ruled that math is to be treated as an abstract concept and therefore a judicial exception to statutory subject matter.
Mr. Heller: “The problem in Prometheus was a little different.”
Mr. 101 :The only difference from the above is that Prometheus was a Law of Nature, instead of a mathematical algorithm, which the Court has ruled is to be treated as an abstract idea. And while a Law of Nature and a Mathematic Algorithm are technically a new and useful process and therefore fall in the process category under 35 U.S.C. 101, and both meet the definition of process under USC 35 100 b, a Law of Nature and a Mathematical Algorithm by themselves have been held by the Court to be judicial exceptions to statutory subject mater.
Mr. Heller: “While the underlying process passed the MOT and would otherwise have been eligible for patenting, the law of nature was not integrated into that process.”
Mr. 101: Wrong. As previously pointed out, there is no Court case in which overlaying processes and underlying processes have been used, or so created. Unlike “integration” your terminology does not exist. It a total fabrication from you own mind. It’s what others have called Ned Hellers made up law. What we are discussing here is the actual law. So stick to that please.
Mr. Heller: I haven’t looked at Ultramercial for a while, but was my impression that the underlying process was patentable
Mr. 101: Wrong again. Yes, Ultramercial is patentable, but not for overlaying and underlying processes. There is only one process that includes the concept as a limitation, with additional steps that “integrate” the concept into the process and are sufficient to narrow the scope of the claim so that others are not foreclosed from using the concept in different applications. See Prometheus and the USPTO new guidelines for authority.
Mr. Heller:
“What is the underlying process that is eligible?
Once we have identified that, we can talk integration.”
Since you insist on dividing processes into “overlaying” and “underlying” you do have a obligation to provide a legal citation. No more dancing. Seriously.
So I repeat my question(s).
What is the so called “underlying” process in Ultramercial and what is the then necessary overlaying process?
I have not read any case law that divides processes into different layers of overlaying and underlying, have you?
Can you cite any Court case law that specifically mentions “underlying” process as something separate from “process” in the 4 enumerated categories?
If so cite it and we will deal with it. If not then stop your conflation and obfuscation tactics and fully engage in the Prometheus “integration analysis” as requested.
Integration of LoN, or math, or mental step, into a eligible process is required. That is called "adapation." I will again quote Diehr if you would like.
This is not rocket science. This is plain and simple.
Re: Ultramerical, the abstract concept is the related to the viewing of an advertisement as a condition of access to to some product.
What is the underlying process that is eligible?
Once we have identified that, we can talk integration.
“” I’m done being mastered and pwned by you in this here thread.””
Yup, like Mufasa on a pack of Hyena’s!
Mr. Heller:
Just to call you on your BS . I can see that what you wish to do is the construe the Courts “Integration Analysis” to some exaltation of the M o T. But that is not going to work.
There is only Court held concept and application and now integration.
There is no machine requirement.
There is no technology requirement.
There is no transformation requirement.
There is no limiting the definition of processes to conventional iron age processes.
Of course if you can cite any Court case law that says otherwise please feel free to do so and I will stand corrected, and unlike you admit my defeat and take it like a man.
Until you do, 101 remains broad, expansive, and the Rich legacy lives well into the 21st century with “integration” as the key to victory!
First of all I not this Mr. Wheeler you have fixated yourself with.
Second, I am not here to play games and jump thru your hoops. Either you can rise to the challenge and debunk the “Integration Analysis of Ultramercial claims” I have posted numerous times in this threat, or you can’t. Integration is going forward with or without you.
So Put Up or Just STFU.
Mr. Heller:
What is the so called “underlying” process in Ultramercial and what is the then necessary overlaying process? I have not read any case law that divides processes into different layers of overlaying and underlying, have you?
Can you cite any Court case law that specifically mentions “underlying” process as something separate from “process” in the 4 enumerated categories?
If so cite it and we will deal with it. If not then stop your conflation and obfuscation tactics and fully engage in the Prometheus “integration analysis” as requested.
Oh and as a pre-emptive stance against your obfuscation tactics need I remind you that a mental process, or mental concept is the same legally, as an abstract idea. So don’t even go there.
Mr. 101, I think you are ignoring the fact that the Supreme Court held that the process into which the law of nature, mathematics, abstract idea, etc. is integrated must itself be patent eligible. The problem in Flook and in Bilski was that the mathematics was integrated into a process which itself was abstract.
The problem in Prometheus was a little different. While the underlying process passed the MOT and would otherwise have been eligible for patenting, the law of nature was not integrated into that process. Thus the Supreme Court held that integration was required. They essentially reaffirmed Diehr.
Focus. What is the underlying process? And is that process itself eligible for patenting?
I haven't looked at Ultramercial for a while, but was my impression that the underlying process was patentable. Just for example, the underlying process seemed to require a significant amount of human interactivity. That might be enough.
Mr. 101, you remain focused on the "e.g." as if that is the only thing the Supreme Court said in Diehr.
To be patentable subject matter, the law of nature, abstract idea, etc. must be integrated into otherwise patentable subject matter. Your posts have consistently started with the answer and worked backwards. We need to focus here. What is the underlying process (or structure) that the abstract concepts are being integrated into. You keep saying that the abstract concepts of Ultramercial are patent eligible because, and quoting you,
"of the way the steps of the process “integrate” the concept into the process."
I am asking you to put some flesh on the bones of the statement.
1) What is the process into which the abstract idea or concept is being integrated?
2) Is this process patent eligible to begin with? If not, then we integration step adds nothing. We would then have either Flook or Bilski, both of which failed because the integration of the mathematics into the underlying process, itself abstract, did not transform the otherwise abstract process into something that was eligible for patenting.
3) Finally, what is the abstract concept in Ultramercial which is being integrated?
When we are in agreement that we must consider all concepts (aka abstract ideas) then we will proceed.
I don’t need a paragraph from you Mr. Wheeler, just say that you agree or you do not. You seem to agree from your blathering above but I want to make sure we’re on the same page or my holding your hand through this easy analysis will be for naught.
Mr. Heller:
I read that and then I continued reading and read this as well from Diehr:
, “[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 referencing Diamond v. Diehr, 450 U. S. 175, 182″
Now, how about you stop your games of obfuscation and conflation and engage in the “integration analysis” debate?
Is Ultramercial’s claims an abstract idea in view of Prometheus?
I say the answer is clearly no.
The claims in Ultramercial are an inventive application of the concept. We know this is correct because of the way the steps of the process “integrate” the concept into the process as a whole. See Prometheus citing Diehr.
Mr. Heller, Do YOU deny this?
Thank you Pro Se Counsel. This is not my first time around the blog and I am well aware of the dirty tricks, and dishonest games of Mr. Ned Heller. He truly gives all good attorneys a bad name.
He simply will not engage directly in a debate about the “integration analysis” used by the Supreme Court in Prometheus and adapted in the new USPTO Office guidelines.
He is literally no better than 6 who proclaims he has already done so and does not have to do it again.
Mr. Heller might as well hide in the closet with his good friend MM and call people names while peering thru the crack of the door.
However this issue can’t be avoided. The CAFC must address it now that Ultramercial, a software and business method case, has been remanded in view of Prometheus. The Rader panel knows they simply can’t fall back on M o T as they did in Prometheus. They will have to deal with the “Integration Analysis” which is in process of become the new 101 standard. The USPTO already has “integration” fully integrated in it’s guidelines. And if the Court steps in you will see plenty of Amici briefs on both sides address this issue. I even predict guest articles by the academic community on “Integration Analysis as the new standard for 101 inquiry will appear on Patently 0.
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link to images.businessweek.com
No, I do not deny it. An invention whose end result transforms or reduces an article to a different state or thing certainly satisfies the requirements for patentability at least at the threshold of 101. Now that we have satisfied your little side step inquiry let’s get back to the actual debate.
Is Ultramercial’s claims an abstract idea in view of Prometheus?
I say the answer is clearly no.
The claims in Ultramercial are an inventive application of the concept. We know this is correct because of the way the steps of the process “integrate” the concept into the process as a whole. See Prometheus citing Diehr.
Mr. Heller, Do YOU deny this?
Let’s see if you have the intellectual honesty and courage to answer as I answered you.
Mr. 101, please read:
From Diehr:
"On the other hand, when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101. "
Mr. 101,
Deny this, then, do we?
From Diehr:
"On the other hand, when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101."
Careful 101, Ned’s obfuscatory tactics are in play and your statement of “There is no such things as an eligible or ineligible process.” is incorrect. There are ineligible processes alright, but the eligibility/ineligibility determination is an end product of the very process of integration under discussion, NOT as Ned would twist it, a “baby steps” first assumption.
A lawyer’s trick, saying “let’s keep it simple” while purposefully conflating things.
This trick, however, will not stand. It has been exposed and nullified.
Now Ned, how about you engage without the tricks?
You have no point. That is the point. What’s crucial for you to understand Mr. Heller is that once the L o N or Mathematical Algorithm is fully “integrated” the process legally transforms into an inventive application of the L o N or Equation and thus by law can’t be an abstract process. Now stop your games already and start with analyzing Ultramercials claims in view of Prometheus “integration standard”. See Reply Jul 06, 2012 at 04:23 AM
Mr. Heller:
There is no such things as an eligible or ineligible process. The only judicial exceptions are
1. Abstract ideas
2. Natural Phenomenon
3. Laws of Nature.
So stop playing games and stick with the actual case law.
Moving or floating a word… does absolutely nothing. Would you like to know why? Astigmatism has the same effect. So when testing, check to see. Have some genius find another test for them.
Mr. 101, let's keep this simple. Baby steps.
Do you agree with the proposition that a law-of-nature, mathematical algorithm, or abstract idea to be eligible must be integrated into an otherwise eligible process?
Then, IS it your position that the process that is modified by the law of nature a mathematical algorithm does not otherwise have to be eligible subject matter? You seem to focus on the "e.g." I am sure you know that e.g. stands for "for example." Thus you focus on the example, but apparently ignore the point.
Mr. Heller:
How insulting!!!! You already presented this argument above and I already responded to it. Yet you purposely present the exact argument again and ignore my detailed and cogent response already presented. You can do better than that and you know better than that. I have presented my original response again below, truncated for brevity but still with the substance of the “integration analysis” Now Mr. Heller, stop being a willful troll and engage in this debate or simply run away like 6 and MM.
The M o T test and definition for 1800 processes is not definitive and most important not pertinent to the current Supreme Court holding of 101 statutory subject matter. Diehr was NEVER held to be locked into inventions of the 1800s. Although inventions of that type are still patent eligible. Besides the question being asked today of the CAFC is one of “integration”, not machine or transformation. Indeed Prometheus was struck in part because it depended on transformations from M o T as a basis for it’s holding.
In Ultramercial the court and the inventors have agreed the concept is:“Using advertising as currency” Claiming a concept without applying it is considered an abstract idea. Abstract ideas, like a law of nature, or physical phenomena, are not patentable subject matter. Flook like Bilski only claimed math equations and thus claimed abstract ideas. The steps of the process did not “integrate” the concept into the process as a whole. So the question before the CAFC is as follows:
Is Ultramercial’s claims an abstract idea in view of Prometheus?
The answer is clearly no.
The claims in Ultramercial are an inventive application of the concept. We know this is correct because of the way the steps of the process “integrate” the concept into the process as a whole. See Prometheus citing Diehr and Flook:
“ Diehr and Flook, the cases most directly on point, both ad- dressed processes using mathematical formulas that, like laws of na- ture, are not themselves patentable. In Diehr, the overall process was patent eligible because of the way the additional steps of the pro- cess integrated the equation into the process as a whole. 187. These additional steps transformed the process into an inventive application of the formula.” (Syllabus Prometheus V Mayo 566 U. S. ____ (2012) )
If Ultramercial’s claims were a mere application of a concept without integration they could read as follows:
a method for using advertising as currency.
1. offering a service
2. accepting advertising as payment
And if the specification to the above claims offered no further definition of the terms then the CAFC could rightfully rule Ultramercial’s claims to be an abstract idea based on the “integration analysis” used in Prometheus and referenced to Diehr. The claims would in effect be no more than simply stating the concept and saying apply it.
See Prometheus as Authority (Still, as the Court has also made clear, to transform an un-patentable law of nature into a patent-eligible application of such a law, one must do more than simply state the law of nature while adding the words “apply it.” See, e.g., Benson, supra, at 71–72.) (( Opinion of the Court 3, Prometheus V Mayo 566 U. S. ____ (2012) )
Ultramercial’s claims integrate the concept with 11 steps that when viewed as a whole and as an ordered combination offer more than the parts do separately. See Prometheus explaining why the claims as a whole are not fully integrated:
“Finally, considering the three steps as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately.” ( Opinion of the Court 11, Prometheus V Mayo 566 U. S. ____ (2012) )
Ultramercial’s steps can’t be completed in the mind and are not mental processes. Nor can they be completed with mere verbal instruction or with pencil and paper. The concept of the claim is still free to use in all fields and technological environments. Therefore the invention does not violate the pre-emption analysis from Benson. That the claims may be beneficial to conducting business on the internet is not a judicially created exception to statutory subject matter. Also that the claims do not provide detailed workings of conventional transformations, apparatus, and machines are also no barrier to statutory subject matter. Therefore the CAFC and The USSC should hold Ultramercials claims as statutory subject matter because the steps of the process “integrate” the concept into the process as a whole and thus transform the claims into an inventive application of the concept.
“e.g., processes that satisfy the MOT. That is the key language.”
Key? No. That is one of the holdings of Bilski. MOT as key was thrown out ( aclue is not a “key”). Prometheus took that dagger and twisted it, as teh claims there were acknowledged to have transformation and still (MOT being satisfied) ws not enough.
It’s not even really that great a clue anymore.
You are back to recycling arguments that have long been defeated. You have grown stale and boring.
Mr. 101, integration into processes that are otherwise processes that the patent law is intended to protect, e.g., processes that satisfy the MOT. That is the key language.
The integration, for example, of the math into the process in Flook was unavailing because the Flook process itself was abstract. Ditto Bilski.
Do you agree?
Yeah, he adds to Diehr the idea of “marketplace” processes from some Fed. Cir. decision written by the likes of either Rich or Rader. He simply refuses to acknowledge this from Diehr:
Mr. Heller:
Marketplace, business, industry are all the terminology of commerce and thus are inherent in the patent process. But let’s be honest here. You are simply trying to divert attention from the fact that the Supreme Court has held “integration” to be the key to transforming a concept into an inventive application of the process.
You, Mr. Heller would rather float red herrings and engage in irrelevant word play and non existent arguments than face the on point case law that uses the “integration analysis” to determine patent eligibility. This despite the fact I have provided several detailed example of the analysis and use of the integration standard, of which you could contribute, critique, or provide alternatives. This behavior of yours Mr. Heller adds nothing of substance to the blog, law, and the patent community at large. You simply comport yourself to being a troll, a shill and nothing more.
“The “concept” at issue can be any “concept” (aka abstract idea), not merely the one the inventors or a certain court dreams up. Anyone is free to dream up another. ”
What’s crucial for you to understand 6 is that once the concept is “integrated” the process legally transforms into an inventive application of the concept and thus by law can’t be an abstract process. So go ahead 6, and dream up any concept you want. If you first establish, with a prima facie case that the concept you dreamed up, is the concept of the invention, then you will have to prove the concept is not “integrated” in the steps of the process. If no, the claim is not patent-eligible and should be rejected. If yes, the claim is patent- eligible, and the analysis is complete.
Here is the formula based on the USPTO Guidelines:
A ) Ultramercial is statutory
This Ultramercial claim passes the Integration analysis as it is a process that includes the [ Insert Concept ] as a limitation, with additional steps that integrate the [ Insert Concept ] into the process and are sufficient to narrow the scope of the claim so that others are not foreclosed from using the [ Insert Concept ] in different applications.
So go ahead 6, establish a prima facie case for your description of Ultramercials Concept. Then plug it into the above USPTO Guidelines based on Prometheus Integration Standard and see if it works. The USPTO set it all up for you. All you have to do now is perform.
What are you waiting for?
Chicken??
Buck, Buck, Buck…
Ya they need an office in FT.Myers Fl rarley over 90 or under 50. thats where I live here the primary attraction is having the worlds only inventor of significance me. So far no investors or customers wanting conception services though. That needs to happen first ive got a 35 billion doller patent portfolio but no attorneys want a piece of the contingent action. guess we will have to continue the depression until Oboma or someone wakes up and stops squandering and starts job and revenue creation and wealth
“In Ultramercial the court and the inventors have agreed the concept is:“Using advertising as currency””
They previously stated that was their position. Because they were not willing to listen to the higher courts. The “concept” at issue can be any “concept” (aka abstract idea), not merely the one the inventors or a certain court dreams up. Anyone is free to dream up another. Like, for instance, wildtangent, or me or you.
Alright Mr. Wheeler, since you are super duper interested in this and you’re willing to put down your reasoning in a somewhat legible form, allow me to guide you into the correct conclusion. Let’s go slow so that when we get there you arrived there on your own without my divine intervention and only with my divine guidance.
Step number one: Decide for yourself whether you believe that we must compare the claim to all abstract ideas of ever or whether we must compare the claim to only the “concept” (aka abstract idea) you have already recited.
When you have decided let me know whether you decided that was the only abstract idea we had to compare the preemptive power of the claim against or whether we had to make sure there are no other abstract ideas that might be an issue. After you have informed me we will take the next step that is appropriate for you.
Re: attracting folks to other locations (e.g., Phoenix).
Denver was over 100 for several consecutive days a couple of weeks ago – and generally the area was spontaneously combusting (Ft. Collins, CO Springs areas + several more). If weather is the primary attraction – it narrows the choices dramatically!
“advocating that integration would include integrating a LoN or Mathematical Algorithm into a process that itself is abstract.”
Mr. Heller, the above is merely a straw man notion that essentially amounts to saying “a mental process being integrated into a mental process. Your point is logically redundant, makes no sense whatsoever, and has no relevance to discussing the Supreme Court precedent of “Integration”.
However as noted, the Supreme Court has spoken on this. A L o N or a Mathematical Algorithm can be patentable subject matter if the L o N or Mathematical Algorithm is “integrated” into the process as a whole.
See Prometheus V Mayo referencing Diehr, explaining how that equation was “integrated”: “The Court pointed out that the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process “integrated the equation” into the process as a whole. ” MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC. Opinion of the Court”
What’s crucial for you to understand Mr. Heller is that once the L o N or Mathematical Algorithm is fully “integrated” the process legally transforms into an inventive application of the L o N or Equation and thus by law can’t be an abstract process.
If you would like further lessons on “integration analysis” I would be glad to assist you. You can start with analyzing Ultramercials claims in view of Prometheus.
“Please define an “abstract idea”, 6 (and others)? Is it mental processes or something more?”
An abstract idea is something you can do in your head, and or with pen and paper. The CAFC has really set the tone here with Cybersource and Ultramercial agreeing on that definition which is in concert with Supreme Court precedent on 101 statutory subject matter. See Bilski, Flook, Diehr. The “perform in your mind” definition sets well with the new ruling on “Integration Analysis” from Prometheus and adapted by the USPTO in the new Guidelines. Things are looking well especially for business methods and software. Know anyone that can execute a software program in their head? Or conduct business entirely within their mind? And now that Breyer has found a way to “integrate’ Flook and Diehr the door of patentable subject matter should remain wide open to promote the progress of the useful arts well into the 21st century.
“The only thing about 101 which I’m prepared to go on at length about in this thread is the new guidance docs.”
To borrow a phrase from Ronnie.
t=There you go again!
You are prepared to do no such thing. I challenged you to demonstrate your skill and use the “integration analysis” from Prometheus and the Guidelines to determine if Ultra’s claims were statutory subject matter. And you backed down like a cowed dog.
“I already understood and dealt with the terminology prior to this decision.”
Perhaps you have 6. But the point is there is no proof of that on this blog. So there is no choice but to assume you are ..well..lying. Since you in effect threw down the gauntlet by boasting that you were most knowledgeable on the “integration analysis” it’s more than reasonable to ask you to prove it. Since you claim to be an Examiner I will provide an example using the The Office Guidelines of how the claims in Ultramercial should be analyzed and what the outcome should be based on that analysis. Pay attention 6 and learn it well so that one day you truly will have the knowledge you pretend to have now.
The USPTO Guidelines at #4 provide an example of how Diehr’s claims are “integrated” and therefore are an inventive application of the equation that is the focus of that patent.
“4. This claim would pass Inquiries 1-3 in the above analysis as it is a process that includes the Arrhenius equation as a limitation, with additional steps that “integrate” the Arrhenius equation into the process and are sufficient to narrow the scope of the claim so that others are not foreclosed from using the Arrhenius equation in different applications.” link to uspto.gov
The above analysis applies to Ultramercials claims as well. Let’s apply it now as follows:
The Ultramercial claim would pass “the integration analysis” as it is a process that includes the concept of using advertising as currency as a limitation, with additional steps that “integrate” the concept into the process and are sufficient to narrow the scope of the claim so that others are not foreclosed from using the concept of using advertising as currency in different applications. For example it does not appear the claims would apply to plays, movie theathers, television programs, or cell phones. Most important steps 2-10 fully integrate the concept which results in transforming the process into the inventive application of the concept. In view of Prometheus and the Courts precedents Ultramercial claims statutory subject matter. And 6, that is how it’s done!
See claims 2-10 below:
a second step of selecting a sponsor message to be associated with the media product, said sponsor message being selected from a plu- rality of sponsor messages, said second step including accessing an activity log to verify that the total number of times which the sponsor message has been previously pre- sented is less than the number of transac- tion cycles contracted by the sponsor of the sponsor message;
a third step of providing the media product for sale at an Internet website;
a fourth step of restricting general public access to said media product;
a fifth step of offering to a consumer access to the media product without charge to the consumer on the precondition that the con- sumer views the sponsor message;
a sixth step of receiving from the consumer a request to view the sponsor message, wherein the consumer submits said request in response to being offered access to the media product;
a seventh step of, in response to receiving the request from the consumer, facilitating the display of a sponsor message to the con- sumer;
an eighth step of, if the sponsor message is not an interactive message, allowing said con- sumer access to said media product after said step of facilitating the display of said sponsor message;
a ninth step of, if the sponsor message is an in- teractive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query;
a tenth step of recording the transaction event to the activity log, said tenth step including updating the total number of times the sponsor message has been presented;
(ULTRAMERCIAL v. HULU 4)
Mr. Heller:
The T leg of the M o T test for 1800 processes is not definitive and most important not pertinent to current Supreme Court holdings of 101 statutory subject matter. The question being asked today of the CAFC is one of “integration”, not machine or transformation. Indeed Prometheus was struck in part because it depended on transformations from M o T as a basis for it’s holding. Now your good friend 6 is not yet mature enough, and so, is afraid to try the “integration analysis” analysis. How about you? Here is my effort below. Can you supply your own?
In Ultramercial the court and the inventors have agreed the concept is:“Using advertising as currency”
Claiming a concept without applying it is considered an abstract idea. Abstract ideas, like a law of nature, or physical phenomena, are not patentable subject matter.
Therefore the question before the CAFC is as follows:
Is Ultramercial’s claims an abstract idea in view of Prometheus?
The answer is clearly no.
The claims in Ultramercial are an inventive application of the concept. We know this is correct because of the way the steps of the process “integrate” the concept into the process as a whole. See Prometheus citing Diehr and Flook:
“ Diehr and Flook, the cases most directly on point, both ad- dressed processes using mathematical formulas that, like laws of na- ture, are not themselves patentable. In Diehr, the overall process was patent eligible because of the way the additional steps of the pro- cess integrated the equation into the process as a whole. 187. These additional steps transformed the process into an inventive application of the formula.” (Syllabus Prometheus V Mayo 566 U. S. ____ (2012) )
If Ultramercial’s claims were a mere application of a concept without integration they could read as follows:
a method for using advertising as currency.
1. offering a service
2. accepting advertising as payment
And if the specification to the above claims offered no further definition of the terms then the CAFC could rightfully rule Ultramercial’s claims to be an abstract idea based on the “integration analysis” used in Prometheus and referenced to Diehr. The claims would in effect be no more than simply stating the concept and saying apply it.
See Prometheus as Authority (Still, as the Court has also made clear, to transform an un-patentable law of nature into a patent-eligible application of such a law, one must do more than simply state the law of nature while adding the words “apply it.” See, e.g., Benson, supra, at 71–72.) (( Opinion of the Court 3, Prometheus V Mayo 566 U. S. ____ (2012) )
Ultramercial’s claims integrate the concept with 11 steps that when viewed as a whole and as an ordered combination offer more than the parts do separately. See Prometheus explaining why the claims as a whole are not fully integrated:
“Finally, considering the three steps as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately.” ( Opinion of the Court 11, Prometheus V Mayo 566 U. S. ____ (2012) )
Ultramercial’s steps can’t be completed in the mind and are not mental processes. Nor can they be completed with mere verbal instruction or with pencil and paper. The concept of the claim is still free to use in all fields and technological environments. Therefore the invention does not violate the pre-emption analysis from Benson. That the claims may be beneficial to conducting business on the internet is not a judicially created exception to statutory subject matter. Also that the claims do not provide detailed workings of convention transformations, apparatus, and machines are also no barrier to statutory subject matter. Therefore the CAFC and The USSC should hold Ultramercials claims as statutory subject matter because the steps of the process “integrate” the concept into the process as a whole and thus transform the claims into an inventive application of the concept.
Hello Mr. Heller:
Your friend 6 wilted when faced with the challenge to apply the “integration analysis” to the Ultramercial claims, as the Court has instructed the CAFC to do. Perhaps you would like a try? I have made it easy and even gone first with my own analysis. What say ye?
In Ultramercial the court and the inventors have agreed the concept is:“Using advertising as currency”
Claiming a concept without applying it is considered an abstract idea. Abstract ideas, like a law of nature, or physical phenomena, are not patentable subject matter.
Therefore the question before the CAFC is as follows:
Is Ultramercial’s claims an abstract idea in view of Prometheus?
The answer is clearly no.
The claims in Ultramercial are an inventive application of the concept. We know this is correct because of the way the steps of the process “integrate” the concept into the process as a whole. See Prometheus citing Diehr and Flook:
“ Diehr and Flook, the cases most directly on point, both ad- dressed processes using mathematical formulas that, like laws of na- ture, are not themselves patentable. In Diehr, the overall process was patent eligible because of the way the additional steps of the pro- cess integrated the equation into the process as a whole. 187. These additional steps transformed the process into an inventive application of the formula.” (Syllabus Prometheus V Mayo 566 U. S. ____ (2012) )
If Ultramercial’s claims were a mere application of a concept without integration they could read as follows:
a method for using advertising as currency.
1. offering a service
2. accepting advertising as payment
And if the specification to the above claims offered no further definition of the terms then the CAFC could rightfully rule Ultramercial’s claims to be an abstract idea based on the “integration analysis” used in Prometheus and referenced to Diehr. The claims would in effect be no more than simply stating the concept and saying apply it.
See Prometheus as Authority (Still, as the Court has also made clear, to transform an un-patentable law of nature into a patent-eligible application of such a law, one must do more than simply state the law of nature while adding the words “apply it.” See, e.g., Benson, supra, at 71–72.) (( Opinion of the Court 3, Prometheus V Mayo 566 U. S. ____ (2012) )
Ultramercial’s claims integrate the concept with 11 steps that when viewed as a whole and as an ordered combination offer more than the parts do separately. See Prometheus explaining why the claims as a whole are not fully integrated:
“Finally, considering the three steps as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately.” ( Opinion of the Court 11, Prometheus V Mayo 566 U. S. ____ (2012) )
Ultramercial’s steps can’t be completed in the mind and are not mental processes. Nor can they be completed with mere verbal instruction or with pencil and paper. The concept of the claim is still free to use in all fields and technological environments. Therefore the invention does not violate the pre-emption analysis from Benson. That the claims may be beneficial to conducting business on the internet is not a judicially created exception to statutory subject matter. Also that the claims do not provide detailed workings of convention transformations, apparatus, and machines are also no barrier to statutory subject matter. Therefore the CAFC and The USSC should hold Ultramercials claims as statutory subject matter.
See ( Bilski Vs Kappos) Also see Ultramercial quoting Benson:“This breadth and lack of specificity does not render the claimed subject matter impermissibly abstract. Assuming the patent provides sufficient disclosure to enable a person of ordinary skill in the art to practice the invention and to satisfy the written description requirement, the disclosure need not detail the particular instrumentalities for each step in the process. That a process may be patentable, irrespective of the particular form of the instrumentalities used, cannot be disputed. If one of the steps of a process be that a certain substance is to be reduced to a powder, it may not be at all material what in- strument or machinery is used to effect that ob- ject, whether a hammer, a pestle and mortar, or a mill. Benson, 409 U.S. at 69-70 (quoting Cochrane v. Deener, 94 U.S. 780, 787-88 (1876)). Moreover, written description and enablement are conditions for patentability that title 35 sets “wholly apart from whether the invention falls into a category of statutory subject matter.” Diehr, 450 U.S. at 190 (quoting In re Bergy, 596 F.2d 952, 961 (C.C.P.A. 1979)). ( ULTRAMERCIAL v. HULU )
Yeah actually it wasn’t the discoverer of genes, it was the guy that first isolated DNA from its surroundings back in the day and then worked on the human genome project. He got a nobel iirc. I don’t remember his name, I saw a program on it the other day.
“You’re ice cold, 6. Nice try, though.”
As ice cold as hel l. Although I may not be completely on fire just yet. You may be an influential lieutenant. But knowing you, I doubt it.
As to whom “we” are, “we” are everyone. And as to where gene’s begin and NAC’s end well that is a great question. I’m not the expert here bro.
As to whether or not non-ob (irrelevant) and useful (also irrelevant) compositions that carry information and are defined structurally in a manner that distinguishes them from the prior art should be ineligible, well, bro, that is a question for a court. At least one court said yep, and another said nope. And indeed I have yet to define “genes”. I don’t plan to either.
If you’ll recall I washed my hands of this case when Kev told me that the claims at issue do not in fact preempt on natural genes, or even significantly preempt thereon. At that point I simply concede the matter because I’m not well enough briefed on the science and all. I do not have all the information I would need to be able to make an informed decision. If I were a judge in this case I would be asking questions like a mo.
6: We all know that what is valuable/useful about genes is not their chemical structure as such, or their chemical properties as such.
Whose “we”? Where does a “gene” begin and a “nucleic acid composition” end?
What they are valuable/useful for is the instructions they carry
So novel, non-obvious and useful compositions that “carry information” and are defined structurally in a manner that distinguishes them from the prior art should be ineligible? Or is it only “genes” (a term which you haven’t defined)?
I believe that was Judge Sweet’s position.
Ah yes. Judge Sweet, known throughout the land for his brilliant positions on patent law and his deep understanding of biotechnology, typically scribbled in crayon on the courthouse bathroom walls.
GSK. And you’re well aware why. It most certainly does not involve a tinfoil hat.
You’re ice cold, 6. Nice try, though.
“Perhaps. But “genes” and “nucleic acid compositions” are non-identical (in spite of overlap).”
The beauty of “effectively” and “whatever” comes together in a symphony of “not eligible.”
6 As the discoverer of genes was reported to have said: “patenting genes was insanity”.
Perhaps. But “genes” and “nucleic acid compositions” are non-identical (in spite of overlap). The “discoverer of genes” (Mendel?) probably knew as much about patent law as you do about biotechnology (which is to say: dick).
“Who’s “they”? And why do you believe that “they” are “one of my major competitors”?”
GSK. And you’re well aware why. It most certainly does not involve a tinfoil hat.
“Rather than answer, I’d recommend just putting the tinfoil hat away and quietly resuming your troll-bashing. Your modestly amusing when you stay on that terrain.”
Don’t get so flustered you forget how to spell “you’re”.
“By the way, what do your fellow Examiners in the 1600 art unit think about your position on nucleic acid composition claims? ”
Good question, however I have to say that I do not know any examiners in 1600. It’s a big office.
“Is a majority for or against the proposition that useful, novel and non-obvious nucleic acid compositions should be held ineligible whenever (before or after patenting) an identical (or hell, even a near-identical) sequence is found in the mitochondrial genome of an Icelandic rock shrimp?”
I don’t know, but I doubt if they’re rearing to lose a portion of what I understand are fairly easy claims to examine (just pop in the sequence and the computer returns the results right?) Would be interesting to find out, perhaps you could talk to some of them when you have interviews.
To be sure though, if it would make you happier then I can change my position (simply what the lawl says) so that you don’t have to worry about the subsequent discovery in the belly of a shrimp in iceland. We could just say “NO” to genomic claims etc period. As the discoverer of genes was reported to have said: “patenting genes was insanity”. That is an acceptable position. We all know that what is valuable/useful about genes is not their chemical structure as such, or their chemical properties as such. What they are valuable/useful for is the instructions they carry on how to make a more complex life form. Funny enough, I believe that was Judge Sweet’s position.
“What a fxxxxin tool.”
Too late, that adjective is already owned by you.
Of course, since the threads are given, you can actually prove Just The Facts wrong by quoting 6’s discussion of integration…
T O O L
“very clear and straightforward advice”
LOLZ
Cite please.
Or is this more of the 6-style I-call-it-something-else-when-I-really-have-no-clue clarity?
T O O L
6: they are one of your major competitors
Who’s “they”? And why do you believe that “they” are “one of my major competitors”?
Rather than answer, I’d recommend just putting the tinfoil hat away and quietly resuming your troll-bashing. Your modestly amusing when you stay on that terrain.
By the way, what do your fellow Examiners in the 1600 art unit think about your position on nucleic acid composition claims? Is a majority for or against the proposition that useful, novel and non-obvious nucleic acid compositions should be held ineligible whenever (before or after patenting) an identical (or hell, even a near-identical) sequence is found in the mitochondrial genome of an Icelandic rock shrimp?
Let us know, bro’.
“circular non-answer”
Just like the USPTO guidance!
Actually the guidelines include some very clear and straightforward advice about the examination of [oldstep]+[newthought] claims. You should read them.
Yeah, he adds to Diehr the idea of "marketplace" processes from some Fed. Cir. decision written by the likes of either Rich or Rader. He simply refuses to acknowledge this from Diehr:
"On the other hand, when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101. "
suckie: “Just The Facts” is a moniker chosen for its purely objective position that posts made to these boards should be factual and falsehoods and distortions should be exposed.
I call “b-llsh-t” right there, suckie.
What a fxxxxin tool.
“Ned, are you serious about having a discussion?”
No answer is your answer: No, Ned is not serious about having a discussion.
If he was serious, he would have actually addressed the posts that point out the serious flaws in his position.
He just wants to shill in peace.