Guest Post by Julie Samuels. Samuels holds an endowed chair at EFF aptly named the Mark Cuban Chair to Elimiate Stupid Patents. EFF's brief in the CLS Bank case is available here: /media/docs/2012/12/eff–iso-cls.pdf.
Since the Supreme Court’s 2010 Bilski ruling, the Federal Circuit has been consistent on only one point in its § 101 jurisprudence—and that’s on being inconsistent. In the face of the Federal Circuit’s failure to provide a workable § 101 standard, the Supreme Court issued its unanimous ruling in Mayo v. Prometheus, essentially telling the Federal Circuit to take the patentable subject matter inquiry seriously. Yet the Federal Circuit paid no heed when it issued ruled in CLS Bank v. Alice, all but ignoring the Supreme Court (for many of us court watchers, the Federal Circuit’s failure to address Mayo was shocking; even Judge Prost, in her dissent, admonished the majority for “fail[ing] to follow the Supreme Court’s instructions—not just in its holding, but more importantly in its approach.”).
So it really was no surprise when the Federal Circuit agreed to take CLS en banc. We, along with many others, hope that this case would provide the Court an opportunity to head the Bilski Court’s warning that:
The Information Age empowers people with new capacities to perform statistical analyses and mathematical calculations with a speed and sophistication that enable the design of protocols for more efficient performance of a vast number of business tasks. If a high enough bar is not set when considering patent applications of this sort, patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change. (130 S. Ct. at 3229).
As currently interpreted, § 101 leaves parties unable to discern a patent’s metes and bounds or assess its validity, making inadvertent infringement an unfortunate cost of doing business. This has led to a dangerous and dramatic increase in patent litigation, particularly surrounding business method patents or those covering software. For better or worse (and I think worse), the major uptick in these cases involved non-practicing entities. Some data that we included in our amicus brief filed in CLS Bank:
- From 200-2002, NPE litigation accounting for only about five percent of patent litigation;[1] in 2007 that figure was 22 percent and in 2011 it was 40 percent.[2]
- Litigation surrounding software patents has also greatly increased:
![6a00d8341c588553ef017c34cf3367970b-pi[1]](https://cdn.patentlyo.com/media/images/2012/12/6a00d8341c588553ef017c34cf3b69970b-pi.jpg "6a00d8341c588553ef017c34cf3367970b-pi[1]")
- For the first time in 2011, spending by both Apple and Google on patents exceeded the firms’ spending on new product research and development.[4]
- NPEs now disproportionately target small companies; at least 55% of unique defendants sued by NPEs make under $10 million a year.[5]
These statistics are a direct result of the legal instability surrounding § 101. One way to stem this problem is to create incentives for those facing litigation (or litigation threats) to pursue their meritorious defenses of noninfringement and invalidity. Section 101 could play that role, in fact, the Mayo Court seemed to state as much: “to shift the patent-eligibility inquiry entirely to these late sections [§§102, 103, 112] risks creating significantly greater legal uncertainty, while assuming that those sections can do work that they are not equipped to do.” 132 S. Ct. at 1304.
Yet no version of recent § 101 jurisprudence offers much hope of settling the law. Instead, we recommended in our brief (filed along with Public Knowledge) that the Federal Circuit take another route and adopt a stricter construction of § 112(f), as recently proposed by Prof. Mark Lemley. Specifically, instead of attempting to figure out whether a broad, functional claim is abstract or not, a court may first use § 112(f) to narrow the claim to the structures and their equivalents recited in the patent and then, if questions remain, make a § 101 inquiry.
While § 112(f) has traditionally been applied to apparatus claims, it’s clear that Congress intended it to apply to method claims as well. Despite this, software patents often do not detail actual algorithms or explain how to actually carry out the methods they attempt to claim; as such they should be indefinite under cases like Aristocrat Techs. v. Int’l Game Tech. If the claims do specify the algorithms, then the § 101 inquiry will be limited to those algorithms and their equivalents. These questions—of whether §112(f) applies; if it does, how the claims should be limited; and then if § 101 permits that narrowed claim—could all be accomplished at early stages of litigation, before expensive discovery and motion practice.
[1] James Bessen, Jennifer Ford and Michael Meurer, The Private and Social Costs of Patent Trolls, Boston Univ. School of Law, Working Paper No. 11-45, 2011 (“Bessen 2011”), at 6.
[2] Sara Jeruss, Robin Feldman & Joshua Walker, The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation (2012) at 5, 25.
[3] James Bessen, A Generation of Software Patents, Boston Univ. School of Law, Working Paper No. 11-31 (June 21, 2011), at 19
[4] Zak Islam, Smartphone Industry Spent $20 Billion on Patents in 2011, tom’s hardware (October 9, 2012), http://www.tomshardware.com/news/Patents-Smartphone-Apple-Google-Motorola,18231.html
[5] Colleen Chien, Startups and Patent Trolls, Santa Clara Univ. School of Law, Accepted Paper No. 09-12 (September 28, 2012)
For the first time in 2011, spending by both Apple and Google on patents exceeded the firms’ spending on new product research and development.
Some follow-up here:
link to money.cnn.com
Google also settled a separate, unrelated lawsuit brought against it by the FTC over its patent licensing. Regulators found that Google was wrongfully preventing competitors from licensing certain patents held by subsidiary Motorola Mobility.
When Google bought Motorola last May, the company agreed to sell rights to patents essential to wireless technologies, but the FTC said Google (GOOG, Fortune 500) instead refused to provide those licenses and sought injunctions against smartphones that Google felt infringed on its patents. As part of the settlement, Google agreed to license these standard, essential patents in the future.
As part of the settlement, Google agreed to do what it earlier agreed to do? What a deal.
I rarely read such dissembling screed as this article. Everytime I come back to Patently-O, I’m reminded why I left.
Let’s tease this apart a bit, shall we?
Quote:
Ummm, no. Spending by apple and Google have NOTHING to do with 101. In fact, most of their litigation is not directed to software, fullstop.
Secondly, NPE litigation and 101 considerations are orthogonal concerns — the author is clearly trying to muddle the issues and make software patents the bogeyman for all the challenges in patenting today.
Three separate issues are being conflated:
(1) Bilski 101 — this is a legitimate concern, as the courts have been unwilling or unable to adequately define the limits of statutory subject matter.
(2) NPE/PAE abuse of process – The prevalence of patent troll sutis is largely a problem of *abuse of process,* where they system allows trolls to embroil targets in expensive patent defense even where the patent is either manifestly invalid or non-infringed. They target smaller entities because they are less able to afford an adequate defense.
(3) mobile patent wars – Folks like Apple, Google, Samsung, HTC are driving all the most high profile and expensive patent suits today. This has a lot more to do with the complexity and revolutionary combinations of technology brought to the table by Apple and its impact on the industry than anything else. It does NOT suggest a weakness in the system, but a strength.
The graph shows the number of software patent lawsuits filed over time. It would be informative to overlay on the graph the following additional graphs — the number of people involved in developing software over time; the amount of money spent developing software over time; the number of computer science/software engineer degrees awarded over time.
You quite miss the point that the machine that is a computer is changed by being configured with software.
Game.
Set.
Match.
I am glad you are happy.
Now see if any 5-year old agrees with you that his gun is new if he changes bullets.
Sent from iPhone
6, don’t be silly. You and I debate this topic all the time on this blog. I express my opinions and respond to criticism. Lemley, on the other hand, makes outrageous assertions and does not defend them in a forum that gives a voice to the rational majority.
I note that Lemley’ites have not met the challenge. No suprize. His view are not defensible.
Great question – and one that makes my case for me, as clearly (in law and in fact) the machine that is a computer is improved in both the factual and legal senses with software, and that components of a machine are separably patentable in their own right.
The analogy of bullets and the gun shoots you with both barrels – that which is directly covered by the analogy (that components are patentable aside from the assemlbed (configured) item, and that which is not meant ot be covered by the anlaogy, that the configuration with software is a new and improved machine.
I am sure that you did not realize that you acquiesced so much with your reply, but thank you anyway!
Is the gun new when you load the improved bullet?
Sent from iPhone
Bullets and guns…
Tires and vehicles…
Piece parts and machines those piece parts go into…
…and what about your “automatically executes” BS?
Anon, if the program is not part of the machine then how can you say that you're claiming a new machine?
Sent from iPhone
Anon, if it is a new machine, The program must be part of that machine.
Sent from iPhone
Big companies would NEVER copy a little company’s product and put them out of business……
Microsoft v. i4i
Well said RS. Love the simplicity of the statute! And its just amazes me the complex and confusing theories/test the anti patent crowd continues to invent in order to try and eliminate software and business methods.
“ assumes that the program is resident and automatically executes”
No Ned – not even close. You are caught (once again) trying to inject your baseless additions into the equation.
I have repeatedly chastised you on this point and begged and pleaded for you to ground these additions into actual law and you have never NEVER complied with my simple request.
How about it Ned – where is the legal foundation for your extraneous “resident and automatically executes” BS?
Your argument assumes that the program is resident and automatically execute so that it creates a new machine.
Do you agree with this limitation on claim construction?
Sent from iPhone
The only useful purpose of a computer is to execute a computer program. The computer is simply a useful medium. OOOSITA could, albeit inconveniently, implement the complete program using NAND gates or with analog circuits. Thus, if the program is new and non-obvious, it should be patentable just as the logic and analog circuits would be. Just as one can design a new and non-obvious amplifier or any ‘mouse trap’, a new and non-obvious computer program should be patentable. There is also now black letter law that states that a manual process implemented in a computer program is not patentable. However, this falsely assumes that implementation in a computer program is obvious. This is not always the case. So, why are we creating black letter law based on false assumptions? “Because it’s software”, which is a poor rationale. I have found no persuasive argument that software should be treated any differently than any other implementation medium. The comments regarding the “kit instructions” is ridiculous because it assumes that the output was known, which is not necessarily the case with software. Plus, a new, nonobvious, and useful manufacturing process is patentable.
Only if they pay you more.
“From this perception, business method patents are rediculous, or North-Korean, to be friendly.”
Actually, from that perception business method patents are essential to a free market economy. How else can an individual start up a business from scratch and compete against a corporate giant like Microsoft, Coke, or Disney that in effect has monopolies on the marketplace?
What’s that?
Did you say think of a better way to conduct business so you can out compete them?
Okay, let’s think about this. So the individual invents some really cool, novel, non obvious innovative business system, process or method and opens up shop against a company like MS, Coke, or Disney, what do you think is going to happen?
The big company is going to freely copy the method, steal without impunity, and squash the little guy like a cockroach.
Then all the commoners will ever have will be MS and Apple, Coke and Pepsi, Disney and….well.. uh Disney.
So much for your precious of freedom of competition in an anti business method, anti patent world.
MM Wrote:”n your opinion, is the following claim eligible under 101:
1. A method for treating a patient comprising,
determining the 6-TG levels in said patient using any old, conventional method,
wherein if the 6-TG levels are lower than 260 mg/L, a need for a medical contract of $521-$614 month is indicated, and wherein if the 6-TG levels are greater than 510 mg/L, a need for a medical contract of $721-$826 month is indicated.”
Since it is apparent that you are not going to respond to actual case law and/or the statute perhaps it would be best if I replied in my own voice, while relying on the case law and statute? So, in light of the foregoing, if the claim is not directed to a bare Court created judicial exception, (derived implicitly from the Congressional Statute of 101) or — after taking all of the claim recitations into consideration—it is not manifestly evident that the claim is directed to a patent ineligible abstract idea, that claim must not be deemed for that reason to be inadequate under § 101. It would undermine the intent of Congress to extend a judicially-crafted exception to the unqualified statutory eligibility criteria of § 101 beyond that which is “implicitly” excluded as a “fundamental truth” that is “free to all men and reserved exclusively to none. This 101 Integration Expert, along with Actual Inventors, and pro innovation commenters have ‘more than once cautioned that anti business method, anti software, and anti patent commenters should not read into the patent laws limitations and conditions which the legislature has not expressed. Unless the single most reasonable understanding is that a claim is directed to nothing more than a fundamental truth or disembodied concept, with no limitations in the claim attaching that idea to a specific application, it is inappropriate to hold that the claim is directed to a patent ineligible “abstract idea”
Any more questions?
I am here to help.
I can’t say more about the near-legendary dessert reception at tonight’s meeting of the Committee to Destroy Patent Rights. The quail was so delicious and the gravy was simply beyond description! More later. Tonight I must give my belly maximum attention.
OK, 6, so you answser the question.
I give it a 101. I write a rejection stating what the abstract idea (I don’t get a lot of lawls of nature or phenom) which is preempt is and why the claim preempts it. I use the BFD framework.
So far, only one person has gotten out of amending. And he only got out via hiring on an appeals guy to spout nonsense that me and my spe get a chuckle from to this day. That will not happen again. Bilski and Prom have ended that little line of “reasoninglol” that the appeals dude was trying to feed me.
But, that guy got in before Bilski and Prom came down, and it wasn’t the worst of inventionlols the office ever allowed.
6, OK, so how do you reject a claim that you believe is such? What do you do? What frame work do you use?
Thanks Really simple. Nice.
Again, lets not forget that “configured to” is structure.
Again, another major beatdown.
As for “It is really simple. Just as there is an incredibly large and diverse way chemical elements can be arranged, there is probably an even larger and more diverse way, electronic circuits can be arranged.” that analogy was already offered up thread and MM was only too happy to jump on the self-defeat bandwagon with it.
And let’s not forget that the electronic circuits are equivalent to software.
“If that were the case, pharmaceutical composition claims would have collapsed under their stinking weight eons ago.”
It is really simple. Just as there is an incredibly large and diverse way chemical elements can be arranged, there is probably an even larger and more diverse way, electronic circuits can be arranged.
“The legal issue is that this new structure is never disclosed and never claimed.”
Let me acquaint you with 35 USC 112.
First paragraph: The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
Note the part about “enable any person skilled in the art … to make and use the same.” I don’t have to describe the “new structure” to enable a person skilled in the art to make and use a software invention. I many instances, I don’t have to describe the computer, the microprocessor, or the particular circuitry necessary to operate the software – not necessary for enablement.
Second paragraph: “The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.”
The claims don’t need to describe the “new structure,” they just have to distinguish the claimed invention over the prior art.
So, getting back to your “legal issue,” there is none. You are creating a requirement that doesn’t exist. Moreover, it has nothing to do with 35 USC 101.
Again, really simple.
The problem with Lemley is an “ivory tower professor” with a degree in economics and political science attempting to explain what type of disclosure is sufficient to enable a software-implemented invention.
Without a basic understanding of the technology, his arguments are nonsense. A portion of the EFF brief (relying upon Lemley) is the following:
“Crucially, these claim steps contain no explanation whatsoever of how to accomplish any of these functions.”
What Lemley (and EFF) fail to appreciate is that the invention is in the functions — not how to accomplish the functions. The “how” can be accomplished by one having only routine skill in the art. There is no requirement to explain what would be known to those skilled in the art.
“Do I want to spend more time arguing about the definition of ‘strawman’ with a guy who doesn’t understand how analogies work?”
I thought you were done arguing … at least try to keep your word. BTW a movie script is not analogous to software. One is functional the other is an artistic expression – so much for your “anlogy.”
“you seemed far more interested in name-calling and low-level trolling”
My understanding is that you’ve got those locked up. I apologize if it appears that I was intruding upon your turf – that was never my intent. I’ll leave the name-calling and low-level trolling to you. BTW – software is an improvement to a machine. See 35 U.S.C. § 101.
“you said yourself that an old computer method could not be made new and patentable merely by swapping one kind of information for another”
No. I didn’t. Besides being a low-level troll, your reading comprehension needs some work. There is a difference between the content of data and the type of data. Since you don’t understand software, I assume you won’t appreciate that difference. Since I’m not getting paid to teach you, I’ll let you attempt to figure it out for yourself. Granted, I assume you won’t even try as it is easier to make your arguments out of ignrance.
“Instead you started talking about XML and JPEG files as if they were somehow ‘special.’ But you weren’t able to explain why they were ‘special’ either.”
See my comment above. If you were even remotely knowledgeable about software, such an explanation would not be necessary. As I said before, talking with you is like talking chemistry to somebody that doesn’t know the difference between a molecule and an electron.
“But we’re talking about j–k patents that should never have been granted.”
Cry me a river. Let me see those big fat tears come dribbling down your face. I don’t care whether or not you don’t like software. This is about the law – not your anti-software obsession. You remind me very much like the EFF crowd … your hatred for software is so great that you don’t even care what the law is, and you’ll make up anything to support your position. If you’ve got policy arguments as to why software patents should never have been granted, take it up with Congress. I’ll say the same thing to EFF. Your collective boohooing makes for lousy arguments.
“Maybe you can provide an example of what you meant when you said earlier that an old computer-implemented method could not be made patentable merely by changing the information that is being manipulated by the method.”
I’m sorry, I’ve already given the lesson. Unfortunately, because your knowledge of software is woeful, you weren’t able to understand it. When I see evidence that you actually know something about software, I’ll give that lesson again. Don’t worry, I won’t be holding my breath.
“It’s not a strawman at atll”
You’ve replaced the fact pattern (i.e., the patenting of software) with a superficially similar proposition (i.e., “patenting movie plots”), which you then attack. This perfectly fits the definition of a straw man.
Let’s see. Do I want to spend more time arguing about the definition of “strawman” with a guy who doesn’t understand how analogies work?
Nah.
I understand why you don’t want to continue this conversation – your logic stinks and you know it stinks.
My logic is just fine. It’s funny – early on in our “conversation” (LOL) you made one positive statement about “the law” and its restrictions on software patenting. When I asked you to clarify what you meant and/or provide a cite for “the law”, you suddenly changed gears and from that point on you seemed far more interested in name-calling and low-level trolling.
To say that something is either an original or a copy is not strange at all.
In certain contexts, yes. Of course, we’re talking about patents (or maybe you weren’t?). Specifically, we’re talking about inventing where it’s well-known that people come up with similar inventions independently all the time, especially when the inventions are described broadly and constructive reduction is all that is necessary.
“It’s all the same.”
There’s your problem right there.
No, that’s your problem, RS. In fact, you said yourself that an old computer method could not be made new and patentable merely by swapping one kind of information for another. But you were never able to explain what you meant, were you? Why not? Instead you started talking about XML and JPEG files as if they were somehow “special.” But you weren’t able to explain why they were “special” either. You just spouted off about you understood what you were talking about and tough luck if nobody else did.
you know when you are out of your league.
Indeed. But we’re talking about j–k patents that should never have been granted. I’m not out of my league. Not at all. You seem to be having difficulty keeping up though.
Maybe you can provide an example of what you meant when you said earlier that an old computer-implemented method could not be made patentable merely by changing the information that is being manipulated by the method. If you want to clarify what you said earlier, be my guest. I would suggest providing a specific example and, ideally, a case which supports what you’re asserting.
I just read it, and I’m still not clear on what the step and function are that are in the claim. Although I can see from that comment that you are thinking in some sort of wacky euro style. If you’re going to comment on our cases, and our lawl, try to put yourself into an american frame of mind.
“After all he thinks you are brilliant. But then again he also thinks 6 is a genius.”
Well, I mean, I did kind of resurrect the BFD trilogy and set you into wringing your hands daily.
PC So you need to show the bulb and its socket and the motion needed to insert the bulb in the socket
LOL. Why can’t I just show a flowchart with a box that says “insert light bulb”?
“Stick to real inventions. Real embodiments. None of this “idea” nonsense, none of this “abstract” nonsense.”
That’s funny, because that is exactly what we’re telling you to do. If you and your kind would kindly stop claiming such, then there would be no issue.
“. The only thing he could come up with was a fax machine.”
Most people aren’t experts in the field of electromotive force printing in the late 18th and early 19th century. Did you give him some time to research it and a budget?
In Prometheus the relevant step was determining the level of 6-thioguanine in a subject.
Relevant to what, Paul? To the Prometheus Court? All that mattered is that the determination was an admitted old and conventional step. The invention in Prometheus had nothing to do with a new method of determining 6-TG levels. That’s why a specific method wasn’t recited in the claims. There’s an old case that is quite clear that one need not waste time recapitulating what is well-known in the art.
So it was a complex multi-stage procedure nothing like putting a light bulb into a socket.
In the sense that the 6-TG determining method was old and conventional, it’s exactly like putting a light bulb into a socket, at least as far as 101 is concerned. Do you want to talk about 101 or 112(f)?
there have to be steps disclosed to support the functions, whether or not they are known. The way you do that in most cases is by flowcharts
Ah yes! Flowcharts. Complicated stuff. Rocket science. The stuff of patents … “software patents” anyway. Or maybe we should call them “flowchart patents”. Or “logic patents”. Because there really isn’t any “software” disclosed in most of those patents, is there? It must have happened once or twice over the many years. But it’s probably fair to say “never”.
If you are claiming a function you have adequately to disclose the structure or step to support that function.
And what is “adequate” varies fantastically depending on whether the function being referred to is old/conventional or whether it’s a never before achieved function. If you all the steps in your flowchart patent are old except for one (e.g., “if the user’s name is Brybyx then output contract term B”), then you might as well just claim that one logical step. But wait! The Examiner might just reach for his oxygen tank and do the right thing in that case. Better to load the claim up with a lot of silly verbiage and recite a “computer”. And be sure to include a flowchart.
Rocket science, man. Really really difficult stuff.
Another merciless [and exquisite] beatdown (and still no popcorn).
NWPA, let’s go a debate irl. Your choice of forum, your choice of time/place. Suggested topic: should software be considered patent eligible? Why or why not?
“It’s not a strawman at atll”
You’ve replaced the fact pattern (i.e., the patenting of software) with a superficially similar proposition (i.e., “patenting movie plots”), which you then attack. This perfectly fits the definition of a straw man.
“It’s all the same.”
There’s your problem right there. You don’t understand the differences so you pretend that they aren’t there. Your positions would make sense … if they were based in reality. However, since you’ve distorted reality to fit your positions, there isn’t much I can suggest except go to a doctor and see if you can get a prescription for something like Clozaril, Geodon, or Risperdal,
“That’s a strange definition of ‘copying.'”
I don’t think so. To say that something is either an original or a copy is not strange at all.
“I’ll be wrapping our conversation now.”
A good man knows his limitations. I see you know when you are out of your league.
“you are mostly interested in trolling.”
I’ve discussed the law … you’ve discussed patenting movie scripts.
“We’re not talking about what ‘most people prefer,'”
That’s what I was talking about. If you’ve changed the scope of the conversation, your comments did not clearly indicate that change.
“It seems we agree now that EFF does not, in fact, want ‘everything’ to be free. Rather, they would prefer that people don’t get sued for file sharing.”
hahahahaha … that’s funny. I hope you don’t use that kind of logic in the real world … I understand why you don’t want to continue this conversation – your logic stinks and you know it stinks. I assume you know “file sharing” means allowing other people to copy, for FREE, your files. If EFF doesn’t want people to get sued, this means they want people to file share (i.e., freely distribute content) without repercussion. It either takes a lot of blls or plain stupdity to continue to fight a losing battle. I’m going with the later over the former.
What does it have to do with the Alice majority panel following the Supreme Court in Prometheus? We have an actual court case here and claims. Perhaps if you wish to engage in and advance the discussion you would best focus on real case law as applied to the claims at hand. If on the other hand you want to engage in silly games and hypotheticals perhaps you should play with Ned. After all he thinks you are brilliant. But then again he also thinks 6 is a genius.
I should have added in relation to the light bulb example that in the case of a feature in the mechanical arts you will routinely have a drawing. So you need to show the bulb and its socket and the motion needed to insert the bulb in the socket and if you are pedantic about that sort of thing a drawing also of the light bulb when inserted. If that is a feature of the claim, there has to be proper written description and drawings support, otherwise there is a risk of difficulty under 35 USC 112(f) and inporosecution yomay get an objection from the Examiner if you do not comply.
And, what point are you trying to make here?
Ned your response makes no sense here. What point are you trying to make?
@6
I think you are answered by my 3.15 p.m. posting to Malcolm
In Prometheus the relevant step was determining the level of 6-thioguanine in a subject.
US 6355623 includes a number of references to papers describing appropriate methods of measurement and also exemplifies one set of procedural steps needed. Here is what you do according to Example 1:
[0070] The levels of the 6-MP metabolites 6-TG and 6-MMP were measured in IBD patients to whom 6-MP pro-drug was administered, and the relationship of 6-MP metabolites to clinical disease activity and drug toxicity was determined. Briefly, blood was sampled (n=89) prior to daily administration of 6-MP in 55 IBD patients (CD n=51, UC n=4) receiving 1-1.5 mg/kg/day over at least a 4 month period (>=4 mo.). When AZA was administered, a conversion factor of 2.07 was used to convert to the equivalent 6-MP dose. Twice as much AZA is administered relative to 6-MP to have an equivalent dose of 6-MP.
[0071] Erythrocyte 6-TG, 6-MMP and 6-MP thiobases were measured (pmol/8*10<8 >RBC) using reverse phase HPLC. Briefly, blood samples were collected in EDTA (ethylene diamine tetraacetic acid) as anticoagulant. Cells were centrifuged and washed three times with an equal volume of 0.9% saline. Washed packed cells were stored at -70[deg.] C. until analysis was performed.
[0072] For acid hydrolysis, 500 [mu]l deionized H2O, 50 [mu]l thawed red blood cells, 40 [mu]l of the appropriate standard or control, 500 [mu]l 3.0 N H2SO4, and 300 [mu]l 10 mM dithiothreitol (DTT) was added to an 8 ml glass screw cap tube. The capped tubes were placed in a heating block preheated to 100[deg.] C. and hydrolyzed. For 6-MMP, hydrolysis was carried out for 5 hours. For 6-MP and 6-TG, hydrolysis was carried out for 1 hour. After the incubation, tubes were cooled in a room temperature water bath. To tubes hydrolyzed for 5 hours (6-MMP), 400 [mu]l 3.4 N NaOH and 1.0 ml 2 M Tris buffer, pH 9.0 was added. To tubes hydrolyzed for 1 hour (6-MP/6-TG), 450 [mu]l 3.4 N NaOH and 500 [mu]l 2 M Tris base was added. A volume of 4 ml 0.03% phenylmercuric chloride in methylene chloride was added to each tube. The tubes were capped and lightly agitated on a bi-directional rotator (15 min for 6-MMP and 30 min for 6-MP/6-TG). The contents were transferred to a 15 ml polypropylene centrifuge tube and centrifuged at 3500 rpm for 3 min at 10[deg.] C. The aqueous phase (top layer) was discarded, and 3.0 ml of the organic phase (bottom layer) was transferred to a clean 15 ml polypropylene centrifuge tube. The analytes in the organic phase were back extracted by adding 225 [mu]l 0.1 N HCl and lightly mixing on an orbital rotator for 5 min. Following vortexing for 30 seconds, the tubes were centrifuged at 3500 rpm for 3 min at 10[deg.] C.
[0073] For 6-MMP analysis, 50 [mu]l analyte was analyzed on a C18 reverse phase column with the mobile phase containing 1 mM DTT, 2.078% triethylamine and 4% methanol, adjusted to pH 3.2 with concentrated H3PO4. For 6-MP and 6-TG analysis, 100 [mu]l analyte was analyzed on a C18 reverse phase column using 0.1 M H3PO4 and 1 mM DTT in H2O as the mobile phase.
So it was a complex multi-stage procedure nothing like putting a light bulb into a socket. Even in that case, it is handly to say that the bulb is inserted manually and in the case of a bayonnet fitting pushed and twisted into place and int he case of an Edison screw turned into place until fully home and end contact has been made.
If you omit such detail you risk there being insufficient structure or steps to support the functional language. It is completely irrelevant to that analysis whether or not the structure or steps were known, as explained and blisteringly clear following Amtel. Anyone who doubts this is advised to re-read Amtel carefully and without preconceptions.
And in the case of a computer, there have to be steps disclosed to support the functions, whether or not they are known. The way you do that in most cases is by flowcharts and there have been 6-7 CAFC decisions on this subject in recent years, all saying the same thing.
It is worth thoroughly familiarizing ourselves with the provisions of 35 USC 112(f). If you are claiming a function you have adequately to disclose the structure or step to support that function. It is a DIFFERENT requirement from support or enablement, arising from a quite distinct provision of 35 USC. If we are aware of that and its implications, we can keep our professional malpractice premiums low.
A process that produces a useful result.
Sent from iPhone
If you want to be "cute," then to the extent BM are abstract….
Sent from iPhone
“If we opened the door to patenting movie plots, we’d see patent applications on movie plots.”
Play with strawmen frequently?
It’s not a strawman at atll. I’m just providing an easily recognized hypothetical to illustrate my point about patent applications going “where the money is.” Another example would be a patent attorney stating that he wanted to make “money off the Internet” back in the 90s so he tried to claim “new paradigms” involving the Internet.
If you want to refresh yourself regarding the definition of “strawman”, you can find the definition online. I recommend you check it out. Or continue embarassing yourself. Either way.
“Instead we open the door to patenting methods of distributing content … using a computer, where the content is different from the prior art content in some arbitrary hand-wavey fashion.”
Show me that claim, and you’ll have something to gripe about.
I had this cued up earlier but here’s a very typical example of that sort of c–p.
The present disclosure relates to the generation and the use of digital contents on the basis of copyright information.
8. A device for managing digital contents, the device comprising: a display unit configured to display various commands; a user input unit configured to receive a copyright application command to create a file; a creative commons license (CCL) generation unit configured to insert copyright information into head information of the file if the copyright application command is received; a storage unit in which an icon for the copyright information and the digital contents are saved; and a control unit configured to apply copyright to the file if a selection command to apply the copyright to the file is received while the file is created wherein the copyright information comprises an Attribution clause, which has a copyright holder, and at least one of a Noncommercial clause, a No Derivative Works clause and a Share Alike clause; wherein the header of the file comprises information for determining whether the copyright is applied, a copyright holder name, a copyright type, at least one of a copyright icon and an initial of the copyright clause to be applied, a site address to which the digital contents are uploaded, a CCL offset to display a position at which the CCL icon or the initial of the copyright clause, a copyright holder display file offset field assigned to indicate a position at which a copyright holder display file is displayed, and an encoded key value for digital right management.
That’s a recent issue (8,336,104). Many, many, many more examples. And please don’t be confused by the “copyright” b.s. (that happened before — use your reading comprehension skills and try to remember the topic of the discussion). The “invention” could just as well be directed to “the use of digital content based on the day of the year the content was produced” or “the use of digital content based on how many cute kittens appear in the content.” It’s all the same.
If they aren’t original inventors then they are copiers.
That’s a strange definition of “copying.” I’ll be wrapping our conversation now as it appears you are mostly interested in trolling. No surprise there.
From my personal experience, most people prefer free over paying for something
That’s funny. We’re not talking about what “most people prefer,” RS. You can have that converstaion on some Yahoo comment board with the other mouthbreathers, if you like.
We were talking about your exaggerated statements with respect to EFF. It seems we agree now that EFF does not, in fact, want “everything” to be free. Rather, they would prefer that people don’t get sued for file sharing. Maybe it would be helpful to you if it was put this way: “Most people would prefer not to be sued for file sharing.” There. Easier for you to process, RS? I hope so.
fix tag
software claims are really method claims
Of course they are. Almost invariably, they are methods of receiving, storing, analyzing/processing and/or outputting information. That is what computers do. That is all they do.
The fiction that is being played out on a daily basis by the thousands of applications is that one can distinguish oneself over thousands of years of non-virtual art and decades of computation merely by giving the information a new name.
Thus, we are led to believe that “swiping a screen” to open or close a program is inventive in view of prior art disclosing (1) touch-sensitie screens; (2) the act of touching a screen to initiate a process in a computer and (3) reams of prior art disclosing devices which turn on and off in response to signals. Oh but wait! It’s on a “mobile device”!
Heckuva job, Kappos.
Interesting that my second post required me to pass the Captcha test. Let’s see if what happens this time.
Fortunately they don’t seem to know what they don’t know, which makes them pretty easy targets, mostly. Fairly easy to bring them down with a little reality bird-shot, even if they aren’t able to grok what happened while they were blustering. Pull!
how can two machines that do not differ in structure perform different functions? How is that possible?
Two machines that do not differ in structure are capable of performing identical functions. That’s the point.
Outside of software and a few other ill-considered “exceptions”, applicants are not allowed to claim new compositions of matter based on a new function without providing novel structure. The argument that a composition “must be new” because it can do something new has never sufficed for patentability. If that were the case, pharmaceutical composition claims would have collapsed under their stinking weight eons ago, just as “computer readable media” claims are collapsing now.
a wave of the hand and pronouncement that it has no structure.
Look, we’ve had this discussion before. Why play d–b? You have two identical computers. You “change one” so that it can do something that the other can’t. Yes, somewhere there is some difference in the arrangement of atoms inside those computers. I don’t know anybody that disagrees with that.
The legal issue is that this new structure is never disclosed and never claimed. Nothing remotely resembling any such structure is ever disclosed or claimed. This requirement which exists in all other arts (again, with a few other ill-considered exceptions) was simply papered over with pure horse hockey along the lines of how an “algorithm” “corresponds” to “electronic structure”. A method of informing my grandma that I bought one of her favorite DVDs online — what’s the “corresponding electronic structure”? That’s a rhetorical question. The law is a joke.
Also, as to Ned being a shill, this in fact turns out to be true and accurate.
Why would Prof. Crouch have a problem with my accurate assessment of Ned Heller?
MM,
I do not call every one whose comments or opinions I disagree with any of those names.
Nice try at deflection.
As to whether Prof. Crouch would be happy with an ideological battleground, I think (actually I know as he personally asked me) that he would be happier if that battleground were not conducted with lies and deceit, conducted with adults willing to actually acknowledge points of law and fact as they are. As to the insults, we have already covered this and you know you deserve any insult I give to you. Don’t like them? Then don’t post in a manner that earns them.
Since you have made admissions and yet lie in the face of those admissions, I cannot see how Prof. Crouch would be happy with your posts. He has clearly come out and said no lying allowed, and yet you continue to blatantly and shamelessly do so.
But it is his blog, and he can do (or not do) whatever he wants.
Thanks TtLG.
It actually does not take hours, as most of the anti-patent “arguments” presented are rather vacuous and poorly constructed. While they are persistent, they are shoddy and easily defeated, needing only a relatively modest understanding of the facts and law that apply.
Plus, it does provide a certain amount of pleasure to see such get dismantled on these boards – especially when it is so very clear that their poor showing actually hurts their agendas.
You would think that if they truly cared for their causes, they would try a little harder at actually making their cases instead of trying to stroke their own egos. I love it that it is their own egos that are their downfall.
this forum will remain a battleground of ideological posts and counter-posts.
I think Dennis is perfectly happy with that, anon.
I’m pretty sure he’s not terribly thrilled by you calling every commenter whose opinion you disagree with a liar or a shill or worse. But maybe he likes that, too.
[shrugs]
PC Measuring thiopurine metabolites was not a simple matter like putting a light bulb into the socket.
Measuring thiopurine metabolites was old and conventional in the art. All you need to know. You know that now, right, Paul? How many more times do you need to be told this fact before you acknowledge it?
have a look at the 1999 CAFC opinion in Amtel v Information storage devices.
That case suggests that only the thinnest of disclosure is sufficient to support the recitation of a conventional, old function. Now imagine that the recited function is something new that has never been disclosed before. What happens then? You think a “cross-reference with an informative title” is going to save the claim?
Returning to the software issue, maybe you or someone else can give a compelling example of a computer executing a new step where that step isn’t distinguished from the prior art merely by the fact that the succession of ones and zeros being received, stored, processed, and/or transmitted by the computer have been given new name(s) by the applicant or by the fact that the identities of the transmitters/recipients of the information differ from the prior art. And then we can discuss what percentage of all applicants filed in this area are as compelling.
Still waiting.
Ned: “101: you seem to agree that the Supreme Court requires that the software or programed computer be applied to produce a new and useful result. ”
In accord with the Prometheus Court’s interpretation of Diehr, as long as the software and computer is “integrated” in the process as a whole, this alone transforms the process into an inventive application of the software and the computer. So are you saying a new and useful result is analogous to an “inventive application” ?
Ned :”What you seem to not fully understand is that simply reciting a programmed Computer is not sufficient.”
Not sufficient for what? You need to be specific here Ned.
Ned : “What you also seem to not understand is that a business method is not a useful application.”
Oh? On what/whose authority do you base that assertion? And please provide an exact quote.
Ned : “If it was, the Bilski claims would have been held to be eligible.”
Bilski’s Claims as a whole are were ineligible because they were a bare Court created judicial exception of a mathematical formula. Business methods had nothing to do with it. See the Court explaining that Bilski’s claimed hedging method is in fact a plain math formula: ( “Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula.”) BILSKI v. KAPPOS, 2, 2010,
IMHO, When the novelty of apparatus Is claimed functionally, the claim is invalid under the prevailing Supreme Court cases going back to O’Reilly v. Morse.
However, software claims are really method claims should be Treated as such. Method Claims must be applied to A useful end in order to be eligible. These principles are simple and should not be avoided by applying six 112 paragraph 6 in an unusual way to functional client
Anon-
I fear you are correct, but it seems to be waste of your intellect. If you are actually correct, it will probably invoke a blizzard of invective and insults, instead of reasoned discussions about the real issues. There is probably a very good reason for some to spend hours every day posting here, which you hinted at in one of your messages.
I can’t help but wonder what they see, when they look into a mirror. S~
Definitely. It is everywhere in our society. Burn baby burn. Get the money and build your doomsday palace in New Zealand.
The irony is rich, given as it is usually MM that descends into the political/religious aspersions on this blog, casting those that believe in patents in the “too religious” mode, all the while it is he that avoids the rational, it is he that is of the “intelligent design” mode.
Can I hear an “Amen?”
The battle is bigger than this blog.
Reminds me:
Did you miss the thread that Ned revealed that his posts are not of a personal nature, that they indeed belong to third party interests?
I have told you before, a check exchanging hands is not the only way of improper influence, not the only way to ensure that an actual conversation is guaranteed not to happen.
Reminds me:
Your attempt at a joke reveals the joke that remains on these boards, for as long as you continue to lie and as long as posts are not of a personal nature, then conversation and an actual (intelligent) exchange is impossible and this forum will remain a battleground of ideological posts and counter-posts.
And as I noted on Prof. Crouch’s 50-year old letter thread, that battle has shown no end in sight. See my posts on link to patentlyo.com (note too that this thread has at least one of MM’s volunteered admissions, that “configured to” is structure).
Sorry Prof. Crouch, but you will have to take an active role in enforcing your terms of use and your no lying policy if you want any different results. MM and Ned simply do not respect your wishes.
And, my final comment:
I wonder about the morality of people like Lemley and his ilk. When I was a kid, there was a sense that being rational and trying to resolve conflicts in a ration way was honorable. That calling someone out for not being rational had some weight that they would at least address.
Now, it seems, and not just in patent law, that there are just these dirty filthy people that will say and do anything to get their way. They will not even address a fair argument that they are not being rational or unfair. They will just launch into counter attacks rather than standing back and saying I am being fair and here’s why.
I have also noticed another big change is that you get these people that attack you and then you disprove them and they do not receive any punishment to their reputation for their attack. When I was a kid, I remember that if, for example, you said well that kid said something bad about you, and you were lying, then it came back to you. Your reputation was harmed. Now, it is just washed over as if it was a mistake. In other words, there is no accountability.
Lemley said software has no structure. The accountability should be no further discussion from him. Or a vanity press paper with an apology and his lame attempt to try to understand structure. But, instead, Lemley forges ahead with trying to come up with arguments judges cna use to invalidate all software patents. It’s a dirty filthy world of ideas we have.
NWPA,
You should know that there is no interest in an actual rational discussion on the merits from the likes posting against patents of this nature here.
Have you seen any rational argument put forth? All that is presented is banal falsehoods and deceptions based on the twisting of law and fact. I notice that you notice MM’s twist of “patentable” structure, but even that does not save the discussion for him as he has voluntarily admitted that “programmed to” is structure. If he wants to engage in a rational discussion, he would stop lying, and he has shown no proclivity for doing so.
One other aspect about this:
The hot air going into the furnace. In modern thinking, we know what this is a partial design of the invention. How to put the hot air in is another aspect of the design. There will be immediately obvious many ways to put the hot air into the furnance and then there will be many follow on inventions.
The fact is that putting hot air into a furnance is an invention as long as there is at least one way to do it. The ways to do it that are not enabled by the disclosure are new inventions.
This is key to this entire discussion. I asked the architect of the Benson decision to name one invention that would have been covered by the invalidated claim for the telegraph. The only thing he could come up with was a fax machine. A machine that was invented over 100 years after the telegraph.
You see Lemley’ites if we stick to the real physical world of inventions all of these arguments are seen as mystical nonsense. Stick to real inventions. Real embodiments. None of this “idea” nonsense, none of this “abstract” nonsense.
>>The Information Age empowers people with new capacities to >>perform statistical analyses and mathematical calculations >>with a speed and sophistication that enable the design of >>protocols for more efficient performance of a vast number >>of business tasks
This is reductionism. Try: information processing has proven itself capable of doing human task better and in different ways than humans. Information processing offers an unbounded future that is impossible to predict with methods and machines that are impossible to predict and that are more and more designed by intelligent machines because humans are incapble of grasping their complexity.
You little reductionism is the same as Stevens you just go hire someone to program the computer comment in the dissent of Bilski.
By the way, Ms. Samuels, I note you are not engaging us here. Try to engage me in this discussion. I double dog dare you or Lemley to such a challenge–even in a debate in public. You intelligent designers are hiding behind your vanity press “articles” to push your psychotic beliefs. Come back to the rational world.
Just ask yourself Lemley’ites what is the emperical evidence for abstract and no structure?
Let us just ask this (and Lemley I would double dog dare you to ever engage in a discussio with me. I will promise to be civil as I humilitate you):
So, how can two machines that do not differ in structure perform different functions? How is that possible? That is what Lemley would have us believe. MM: by the way, has introduced the word “patentable” in front of structure in a pure intelligent design maneuver. But, MM that is just another fudge word like abstract isn’t it? No emperical embodiments to discuss. No method to apply. Just a wave of the hand and pronouncement that it has no structure. No weighing two structures together of actual embodiments and saying one is obvious over the other–nope just a wave of the hand. You are a joke MM.
And, don’t miss it: intelligent design — we don’t care what is in the physical world we just know. Lemley’ite– we don’t care about embodiments of an invention we just know.
You boys are nailed as the mystical medieval rabble that you are.
I just watched an NPR account of the Intelligent Design trial. There is no doubt that Lemley is the Phillip E. Johnson of information processing.
These words abstract, no structure, etc. simply are not reflective of patent law. The words of a claim should represent the scope of enablement of the invention. If too broad, find examples that are not enabled, and you can invalidate the claims. That is the science of patent law. What you can see in the real world. A real process that relies on actual embodiments of the invention. A real process that can be rationally considered.
Lemley’ites rely on words that do not relate in any meaningful way to embodiements of the invention.
Lemley’s attacks are also just plan irrational. They do not employ sciencetific methods. They do not employ ration processes. The Lemley’ites are the intelligent designers.
I also think that this biased against information processing is part religeous. The people that are against information processing patents, have this palpable distain for information processing. There are numerous examples in the court record of comments the justices and judges have made that makes it clear they see information processing as a challenge to their seats of power. For example, Stevens comment that you just go hire someone to get some information processing task done; the comment made in the Federal Circuit of what are they going to patent next a program for writing briefs. There are many more examples that make it clear that there is something beyond rationale thought behind this behavior (and not just Lemley’s wallet.)
MM: what you wrote is a representation of an invention — of a machine or method– just as your series of letters represents chemcial compounds. So, you have a machine sitting there diagnosing cancer from x-rays. How do you claim it? MM: you are an intelligent designer.
A big problem with Lemley’s suggestion is that it creates incentives to hide the ball and create shorter disclosures, especially now that the best mode requirement is much reduced in significance (if not altogether gone). If I have to worry that every element will be construed under 122(f), there is a strong incentive to include only the minimal amount of technical information that will let me satisfy enablement/written description. Under the current system, including more information doesn’t usually hurt, and may help with enablement and fallback positions, among others. When in doubt, the current incentives are generally to include more. Under a new system as proposed by Lemley, disclosures would become shorter and harder to read, which goes against one of the main purposes of patents.
As an aside, EFF likes measures that kill existing patents, not just limit or improve future ones. It seems that as a result, their main focus is on weakening patents during litigation, and what happens in the USPTO is of secondary significance in their calculus.
Measuring thiopurine metabolites was not a simple matter like putting a light bulb into the socket.
But have a look at the 1999 CAFC opinion in Amtel v Information storage devices. The claimed feature in an IC device was “high voltage generating means”. Voltage multiplier circuits were well known and were within the common general knowledge of a skilled person. But all that was shown was a simple black box without any description of specific structure in the box, and the CAFC held that this did not suffice. The patentees were saved because they had included a cross-reference with an informative title, but they had a very narrow escape.
“Play with strawmen frequently?”
All
the
time.
exquisite ones, and per Ned, he plays brilliantly.
“If we opened the door to patenting movie plots, we’d see patent applications on movie plots.”
Play with strawmen frequently?
“Instead we open the door to patenting methods of distributing content … using a computer, where the content is different from the prior art content in some arbitrary hand-wavey fashion.”
Show me that claim, and you’ll have something to gripe about. Until then, what’s spewing out of you is what is commonly found in a baby’s diaper.
“Is there a source for your claim that there most infringement of software claims is ‘copying’?”
If they aren’t original inventors then they are copiers. The software industry is known for its copying. Why create a 10000 line module from scratch when you can copy it from your past project/job/etc.? Copying is so prevalent in software becase it is easy to do. That is why the FOSS people get up in arms over patents … it prevents them from doing exactly what they want to do — which is copy code.
“Who’s ‘you’?”
From my personal experience, most people prefer free over paying for something. Maybe things are different over in your mom’s basement.
“What else does EFF want to be ‘free’ of charge?”
My guess is content.
“Is there some manifesto you can cite to for the proposition that EFF wants “everything” to be free of charge?”
link to eff.org
I like the title of one paper … “How Not to Get Sued for File Sharing” or “Digital Rights Management: A failure in the developed world, a danger to the developing world.” Filing sharing??? Nothing untowards going on there. DRM … I wonder what that is used for??? It wouldn’t be for protecting content, would it? Why would EFF be against something that prevents people from getting content for free?????
To follow up on my comment regarding the US software market. Compare the chart above with he chart found here:
link to calenlegaspi.blogspot.com
When you do that, the explanation for the increase in number of lawsuits becomes perfectly clear
“claimed in a fashion that distinguishes it structurally from a prior art manufacture”
Another blatant lie, given MM’s admission that ‘programmed to’ equals structure.
It’s absolutely brilliant how he has conned Ned into thinking that he is brilliant (not really, as all that it takes is to agree with Ned’s agenda and you are automatically “brilliant.”)
MM is simply having his @_$$ handed to him and you are simply too blind to see. What is so “brilliant” about blatant lying and getting pounded on all substantive points? As to the SC agreeing with him, you couldn’t be more off as even with the inane Prometheus aligning with his predicted result, MM is dead wrong on the legal reasoning and keeps on self-defeating; snatching defeat from the jaws of victory as it were.
Almost anything you can implement in hardware, I can implement in software
That’s nice.
The issue is claims that merely recite “implementing” abstract transformations (e.g., converting digital “data” from one arbitrarily defined “type” into another arbitrarily defined “type”) without reciting a single novel structure necessary for that transformation to take place. I don’t care if you call such a claim “hardware” or “software” or “vaporware” or “grxbshlffware”, it’s a claim to an abstraction.
And, yes, abstractions can be useful (e.g., a contractual relationship or a ranking of movie popularity) and people like to pay for them. It doesn’t make them any less abstract or any more worthy of patent protection.
I’m not aware of ANYONE suggesting that a bona fide new computer, claimed in a fashion that distinguishes it structurally from a prior art manufacture, should be ineligible for patent protection. But if a new machine claim is distinguished from a prior art machine merely functionally, e.g., on the basis of what it does with information, then it belongs in the trash can, along with any other similarly defective claim.
Almost anything you can implement in hardware, I can implement in software, and vice versa. This attempt to distinguish between hardware and software is kind of silly. It’s like claiming silicon layers are not patentable because a cut-across listing of the elements is hard to read, and doesn’t provide structure.
The most notable feature of the anti-software camp is that they cling to the idea that you can distinguish software from hardware on any realistic basis. But they can’t specify the how.