by Dennis Crouch
On February 8, 2013 (this Friday), the Federal Circuit will sit en banc and hear arguments on two important patent cases. In CLS Bank v. Alice Corp the court will focus on the patenting of inventions implemented through software. The two particular questions highlighted in the en banc order are:
a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible “abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?; and
b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?
In addition to the parties, the Federal Circuit has also granted leave for the USPTO to participate at oral arguments. The USPTO’s brief focused on practical mechanisms for the process of determining § 101 eligibility. The agency wrote “the essential question under § 101 is whether the claim, properly construed, incorporates enough meaningful limitations to ensure that it amounts to more than a claim for the abstract idea itself . . . This Court should identify a non-exhaustive list of factors for district courts and examiners to consider in resolving that essential question on a case-by-case basis.”
The second patent case (argued first on the 8th) is that of Robert Bosch v. Pylon Mfg. In Bosch, the court is focusing on the “final judgment rule” that limits a losing party’s right to appeal until the district court judgment is finalized. Particularly, 28 U.S.C. § 1292(c)(2) indicates that the Federal Circuit has jurisdiction over patent appeals once the case is “final except for an accounting. The basic question on appeal is: Define “an accounting.” The en banc order asks two particular questions:
a) Does 28 U.S.C. § 1292(c)(2) confer jurisdiction on this Court to entertain appeals from patent infringement liability determinations when a trial on damages has not yet occurred?
b) Does 28 U.S.C. § 1292(c)(2) confer jurisdiction on this Court to entertain appeals from patent infringement liability determinations when willfulness issues are outstanding and remain undecided?
In its brief of the case, the U.S. Government argued that “accounting” encompasses the damage award. As such, the Government argues that appeal is appropriate once liability is determined.
At the Supreme Court, oral argument in Bowman v. Monsanto (patent exhaustion doctrine) is scheduled for February 19; and FTC v. Watson (reverse payment settlements) is scheduled for March 25. Arguments for Association for Molecular Pathology v. Myriad Genetics, Inc.
have not yet been scheduled.
“I’ll just repeat it again, anon. It’s basic stuff. Maybe read it really slowly::”
repeating it slowly may work in your alternative universe MM, but here in this one, your bogus theory is just that: bogus.
No one outside of your little cirle has ever agreed with you.
No One.
“The only people I’m aware of who refuse to “get it”
LOL – you forgot the two Amicus Briefs and the count I provided to you of how many times your bogus theory was used: ZERO>
You also forgot (but no one else has, as it is archived here) that the USPTO also does not believe in your bogus theory. Quite in fact, they believe in 101 Integration Expert’s integration doctrine. You were even the very first person to post a link to that massive self-defeat of yours. That’s archived too. Perhaps even on Sam Hill.
“both wish the law were different”
LOL – like you wish with the exceptions to the printed matter doctrine? Or like with the judicial exception to patent eligible subject matter of products of nature?
Like that?
Epic MM FAIL
MM,
It is more than just “characterizing.” In fact, If you stuck with “characterizing,” then you would not be receiving your head back from me (yet again).
Maybe you forgot – the comments here are archived, and we all can see what went down.
It is about you recognizing WHAT is the law and posting in accord with that.
You seem incapable of that. Just like you seem incapable of having the nuts to admit that you were wrong on the what the dead letter comment in Prometheus was too. Yes, that was archived as well. Instead of being forthcoming about that, you spend your time looking for youtube clips. Your snark might (just might) have some small effect if you were actually right about something that we discuss to begin with. As you are not, all your snark does is emphasize that all you have is snark. Vacuous and empty snark.
And then you continue your intellectually dishonest ways by accusing others of dissembling. It’s easy to see where your self-loathing comes from.
MM High Priority FAIL
It is not the second law of thermodynamics.
The Second Law is very clear on the point that information is not a conserved quantity. Information is always lost over time.
Sorry to interrupt. You were about to tell us what “fundamental principle of physics” contradicts the Second Law. Be sure to copy the Nobel Foundation.
It is not the second law of thermodynamics. And, what do I think it says or want?
Do you need a remedial course on the difference between copyright and patent law? It sounds like you do.
IANAE: it always amazes me at not only that you will troll any post of mine, but just how low you will sink to do it. You must have no morals or common decency.
LOL – vacuous. As usual.
1) information processing takes space, 2) time, 3) and energy.
So does writing songs.
There is a fundamental law of the conservation of information.
The Second Law of Thermodynamics. As usual, the law says the opposite of what you think/want.
the beauty of information processing.
Okay, fine. If it’s that pretty, you can have a design patent.
MM: you are a nut. Your arguments hold about as much water as a sheet of glass sprayed with this:
link to youtube.com
As we approach D hour, let’s all remember:
1) information processing takes space, 2) time, 3) and energy.
There is a fundamental law of the conservation of information. Information is a fundamental principle of physics.
Try to raise yourselves out of the mud of conflict and exalt the beauty of information processing. The information processing that drives cares, diagnoses cancer, builds cars, talks to you on the telephone help lines, etc.
May the force be with Rader…
You’re a funny man, Max.
the smoking wreck that is MM prompted his circle mate Ned to douse himself with gasoline and immolate himself
My hands were cold.
Marshmallows, anyone?
You might want to review some of their latest decisions on point, starting where you left off – 1971 or so, apparently.
LOL!
Let me know if you are going to continue to post lies about the law,
Characterizing the “exception to the printed matter doctrine” as “logically bankrupt horsesh-t” ready for the dustbin is not a lie.
It’s the truth. Of course, you are incapable of discussing the matter without dissembling. But that doesn’t make it untrue. You were and continue to be incapable of discussing the Prometheus decision without dissembling. You were spectacularly wrong about that decision and, if you choose to defend the “exception to the printed matter doctrine” you will be proven spectacularly wrong about that, too.
there is no affirmation whatsoever that anyone buys into your crrp [oldstep+newthought] theory.
I’ll just repeat it again, anon. It’s basic stuff. Maybe read it really slowly:
all claims with mental steps are not eligible. The presence of a “novel” mental step in a claim which otherwise recites only an old conventional step is a good indicator that the claim is ineligible.
See, e.g., the Prometheus case. This has been explained to you many many many many many times.
Ned understands this. I understand this. LB understands this. Dennis understands this. Jason understands this. IANAE understands this. MD understands this. Kevin Noonan understands this. I think even Gene Quinn might understand this.
Spread the news. If any of these people disagree with me, they can let me know and I’ll take their name off the list.
The only people I’m aware of who refuse to “get it” are two commenters who have trolled just about every thread relating to the issue since it was first presented: you and 101E.
I think even Les and EG get it, although they both wish the law were different (not going to happen).
101 is about categories.
Yes, and interpreting what those categories mean is the function of the judiciary.
You might want to review some of their latest decisions on point, starting where you left off – 1971 or so, apparently.
No. 101 is about categories.
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter , or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
The test for breadth is 102 and 103.
And 112. And 101. And whether the inventorship is correct. And whether withheld prior art is material. And so on.
Bad breadth can get you rejected in all kinds of ways.
Is the claimed item a list of steps? Tada, its a process. MOVE ON to 102 and 103.
We’ll give you a moment to catch up on the last 40 years of Supreme Court caselaw about section 101, then?
Because new is covered by 102 and is only redundantly included in 101…perhaps for emphasis.
In any event, I have no quarrel with clear rulings that say something fails 101 because it is not new (assuming it is not). My quarrel is when they say a process (e.g. Bilski) is not a process because it is broadly described. That’s through the looking glass nonsense.
The test for breadth is 102 and 103.
Nonsense Ned.
Is the claimed item a list of steps? Tada, its a process. MOVE ON to 102 and 103. No prior art need be considered. Similar reasoning applies to the other categories of patentable subject matter.
Right, another absurd couple of rulings. Sound an alarm to notify a worker to open a door, not patent worthy. Move the wires from the alarm over to the door opening actuator… tada! Patent worthy.
All desired result oriented non-sense.
“I think they manifestly are physical acts, and this indeed presented a problem to the Supreme Court. This is why they came up with “preemption.”” Q.E.D
Thank you Ned, my point exactly:
“This is why they came up with “preemption.””
They came up with preemption because they wanted a particular result and they couldn’t justify it by reliance on the law, so they legislated a new law from the bench. They “came up with” preemption. Exactly!
What could be more absurd than preemption?
Every patent preempts the claimed invention. THAT’S WHAT PATENTS DO.
If a patent is so well written as to be valuable because it is difficult to work around, it must not be valid. aaaaaargh!
if the Examiner rejects your claims for “failing” the MoT then you have a slam dunk reversal on appeal.
Just like Bilski got reversed on appeal, right?
Les, 35 USC 101 has pohl position sure but if you read it as a hole you will stumble across the word “new”. We no that judges do read the statutory provisions carefully before they dowhl out their findings. How then can you assert so confidently that new has no roll to play in there 101 jurisprudence?
anon: “This is decidedly NOT what your position has been in conversation with me, Ned.”
Ned flipped positions on me too. He is a very tricky lawyer.
Ned: “A mental “step” in a claim is given weight to the extent to which it modifies a physical step to cause some new effect. ”
Whooooa there Ned, this is not what you said or agreed to at Reply Feb 07, 2013 at 05:19 PM.
Now I have not read the Government brief from Mayo but if you are referring to the argument(s) addressed and rejected by the Court why should I waste my time? I am only interested in the current law. And unless you can provide a citation that says otherwise, I do not believe there is any law that requires a mental step to modify a physical step to cause a new effect, in order for “the step” to have patentable weight. Which by the way sounds virtually the same as the transformation leg of the MoT.
Which would mean that if your view is correct the Prometheus Court upheld the MoT as “the” test for patent eligible subject matter. However this can’t be the correct because the Court said the following:
“Regard less, in stating that the “machine-or-transformation” test is an “important and useful clue” to patentability, we have neither said nor implied that the test trumps the “law of nature” exclusion. Bilski, supra, at ___ (slip op., at 6–7) (emphasis added). That being so, the test fails here.”
Ned: “The math was integrated in Diehr because it modified a physical step to produce a new result.”
The math equation was “integrated” into a computer, which was also integrated, with all the other steps, into the process as a “whole.”
According to the Court “integration” does not rise and fall on individual steps. You MUST take claims as a whole. Which in effect is the essence of “integration”.
You are very smart Ned. And I am glad there are attorneys like anon and the rest that catch you in these tricks. But even without them there is no way you are going to fool me or convince me that the Courts “Integration” stands for no more than Machine or Transformation.
Breyer in Bilski has no force of law.
We have been around that merry-go-round ride before.
Why are you trying to dredge up arguments that failed before? They still do not work.
Less trying to find funny clips on Youtube and more understanding the law.
LOL – but Intellectual Honesty is his Top Priority.
Must have been (yet another) one of his blatant lies.
Lying about honesty – truly a shameless being.
Well, at least he provides a burning example of how not to post.
MM Intellectual Honesty Top Priority FAIL
Let me know if you are going to continue to post lies about the law, given that right now (right here in this reality) that such is controlling law.
You might want to read up on the word Integrity too.
What abou the exception to the printed matter doctrine.
What about it? It’s logically bankrupt horses–t and it’s on its way to the dustbin of history.
Let me know if you’d like to bet on that.
LOL – contemplating this thread, it is apparent that the smoking wreck that is MM prompted his circle mate Ned to douse himself with gasoline and immolate himself in the hopes that the smokescreen of Ned burning out of control would lessen the ruins that MM lies in.
Just like two wrongs do not make a right, all we actaully have is two smoldering wrecks on this thread.
Way to go circle mates.
You incorrectly tried to say that the dead letter comment was in relation to 101. I corrected you that it was to the judicial exception to 101, not to the law itself
Wheee!!!!!!!!!! Look at him go, folks!!!
link to youtube.com
“The printed matter doctrine, e.g., is born of these same considerations”
LOL. What abou the exception to the printed matter doctrine.
You know, the one that you voluntarily admitted to knowing was controlling law?
MM blatant lie FAIL
You do know that claim as a whole is not limited to 103, right Ned?
Not sure, maybe it’s next to the one that makes you post in an intellectually honest manner.
Can’t find that one, eh?
“something physically new”
Your canard is showing again (recall that the actual result in Diehr – the cured rubber – was not in fact something physically new.
Ned, your logic is imploding all around you.
“I think they manifestly are physical acts”
…so then, accordingly to your own professed views here, the physical acts make this type of thing a valid method category…?
Come Ned, you are in self-contradiction mode again…
“Sure. But all claims with mental steps are not eligible. ”
Did I ever say such a thing?
Kindly retire your strawman and try to keep up, son.
LOL – nice litany of people – but outside of your circle, there is no affirmation whatsoever that anyone buys into your crrp [oldstep+newthought] theory.
No one. Did you miss the count in the two briefs…?
Oh wait, I gave you an assignment in that comment and you don’t do answers (against your style).
MM retort FAIL
“Awww, that’s sweet”
No.
That’s intellectually honest. You might want to read up on that concept (rather than just [shrug] and stand by).
Do you still think this is silly? You have now so contradicted your own post at 11:00 AM as to be irrecoverable in this discussion.
I suggest you think about finding that white flag.
Ned,
You have agreed to: any of your listed mental steps are “integrated” in a process as a whole, that includes at least one step of observable behavior, the process becomes patent eligible subject matter.
Yet, your intitial premise of our discussion was that mental steps are NEVER allowable claim steps in a method claim.
You cannot have them as both valid steps in a eligible method claim (my original position and one you disagreed with) and NEVER valid steps in a method claim (your position which I have completely dismantled).
If you just want to say “Uncle,” just say “Uncle.”
OK. I'll do it tomorrow though.
Again, produce and make to me are both covered by 112, p.1.
anon, I don't remember being inconsistent.
Ned,
reread Newman in Bilski.
Excellent.
But the encrypted signal is also transmitted or stored and later decrypted. I think we do need a case exactly here to tell us clearly how to claim these very important inventions and survive a 101 challenge.
It is therefor a mistake to say that 101 is a threshold issue devoid of condiderations of novelty. To make it such would elevate form over substance, and make the analysis to look rather to whether the claimed subject matter was nominially directed to a machine, etc. That of course, was Rich’s position.
But where would that leave us? The only novelty in a claim being unpatentable subject matter? Music, in the case of a piano player for example.
The courts are that easily fooled. Nice try, Judge Rich.
Indeed, it was a spectacular and inevitable failure on Judge Rich’s part.
“A method that produces signals is eligible”
What is the “physical” of the “make”?
Your views are being crushed under their own weight of infeasibility.
(any time you want to put downthe shovel would be a good time for you)
anon, I fail to see any contradictions. Please elaborate.
Prior art SHOULD have no roll in 101 considerations.
As we discussed endlessly here prior to the Prometheus decision, that can only be true if ineligible subject matter has no roll in 102/103 considerations (that was the government’s proposal – rejected by the Supreme Court 9-0 for sound reasons).
Let me know if you need the reasoning explained to you. It’s very easy to follow. In a nutshell, if you want to keep patentees from protecting ineligible subject matter with trivial (“old, conventional”) limitations, you must have a legal methodology in place for ignoring either the trivial limitations in 101 analyses or for ignoring the ineligible limitations in 102/103 analyses. The printed matter doctrine, e.g., is born of these same considerations.
anon, reread Breyer/Scalia in Bilski.
“A mental “step” in a claim is given weight to the extent to which it modifies a physical step to cause some new effect”
This is decidedly NOT what your position has been in conversation with me, Ned.
Are you lying now, or were you lying before?
anon, we see eye-to-eye on some issues. And, as you note here, our discussions are interesting. Let's try to stick to the merits and have some "fun."
You should know, I actually listen to what you have to say and think about it. That does not mean I instantly agree…
I see from your posts over the years that you too begin to more fully understand the issues because of our discussion even if you do not fully agree with my views.
encryption of a non-physical signal
You cannot “leave it at that” and still maintain your main point that mental steps cannot be process claim elements.
Self-contradiction is no way to go through life, son.
Which button calls your mom to come and pick you up, anon?
Mayo: MoT not sufficient (you forget that the Court found that MoT was in fact reached).
Bilski: MoT not necessary (only one of a very few items that was actually unanimous in the decision).
Face it Ned – I know this stuff WAY better than you (it’s OK to admit that).
Read the statute. It has a number. 103. It tells you how to conduct an claim as a whole analysis.
As I posted yesterday, the current state of law does include mental steps as legitimate parts of process claims.
Sure. But all claims with mental steps are not eligible. The presence of a “novel” mental step in a claim which otherwise recites only an old conventional step is a good indicator that the claim is ineligible.
See, e.g., the Prometheus case. This has been explained to you many many many many many times.
Ned understands this. I understand this. LB understands this. Dennis understands this. Jason understands this. IANAE understands this. MD understands this. Kevin Noonan understands this. I think even Gene Quinn might understand this.
How about you, anon? Do you understand it yet?
LOL. Of course you don’t. Keep your head in the sand. I’m sure it feels “safe” there, plus when you start digging to China you’ll already be facing the right direction.
“pathetic somersaults and incoherent ranting”
No such thing required – remember? things are archived here and your self-evident, self-defeat is there in black and white.
You incorrectly tried to say that the dead letter comment was in relation to 101. I corrected you that it was to the judicial exception to 101, not to the law itself. Now instead of simplyhaving the nuts to admit that you were wrong, you got all in a huff because the correction came from “anon,” and you picked up your B$ chovel, hiked up your skirt and sprinted away for nigh a week.
You really shouldn’t accuse others of drivel, as it is evident that that is not your first bottle of tequila.
While you may ask politely for me not to ride, your other posts scream for me to do so.
Guess which one I hear more loudly?
(here’s a hint: you have some control over what I post – don’t post things that scream out for correction, and I won’t be presented with that choice) You cannot cry that I take the high road, when your actions give me that very path.
That’s not his position.
Please don’t misrepresent his views.
Awww, that’s sweet.
Now that you have finally got the decision out, we can discuss the actual substantive reason why that particular “page cite” was being discussed.
Do you know why?
Yes, I brought the “dead letter” issue up in the context of a discussion with another commenter.
“This approach, however, would make the “law of nature” exception to § 101 patentability a dead letter. The approach is therefore not consistent with prior law.”
132 S.Ct. 1289, 1303 (emphasis added)
Congrats! You found the actual quote after I told you where it was and you figured out how to copy and paste it into the comments section here.
I suppose now we have to suffer through your pathetic somersaults and incoherent ranting as you attempt to explain how my original reference to the “dead letter” comment represented “a blatant lie”.
[grabs popcorn and bottle of tequila]
You might as get started. I would recommend showing your work to an English-proficient friend (assuming you have any) before posting your drivel here.
“in order to conduct an analysis under “claim as a whole,” one must know what is new and what is old”
I think you have things conflated. Not only that, but your predicliction for disssection is showing through.
That’s like wrong on wrong – not making a right, but just doubly wrong.
Les, in order to conduct an analysis under “claim as a whole,” one must know what is new and what is old. A lot of the 101 cases get to the decision stage with the patent owner or applicant admitting that the only thing new is the allegedly ineligible subject matter. But this, IMHO, does not preclude a 101 analysis after determining what is new and what is old.
It is therefor a mistake to say that 101 is a threshold issue devoid of condiderations of novelty. To make it such would elevate form over substance, and make the analysis to look rather to whether the claimed subject matter was nominially directed to a machine, etc. That of course, was Rich’s position.
But where would that leave us? The only novelty in a claim being unpatentable subject matter? Music, in the case of a piano player for example.
The courts are that easily fooled. Nice try, Judge Rich.
“You really expect MM to answer?”
Of course not. MM, will NEVER engage in a substantive conversation let alone debate when it comes to “Integration”.
He is too much of a intellectual coward and weakling.
Les, I agree in principle that a computer process is a machine process and is not a mental step.
That, again, was the vexing problem presented to the Supreme Court in Benson. We have their decision. The use of GP digital computer to conduct the mathematical steps is not per se patenble.
Flook confirmed when its output was a number.
Diehr confirmed, but then said that using the number to do something physically new was the point that the machine process became eligible.
Dennis, it might be useful, if you could, to provide some information in a reply to exactly which post the reply is made. This will allow us to simply reply without first quoting the post.
My statement regarding Benson was in response to this:
"Are the operations of a computer in running software physical acts?"
I think they manifestly are physical acts, and this indeed presented a problem to the Supreme Court. This is why they came up with "preemption." However, the subsequent jurisprudence confirms that the using a machine process to produce a number that then is not use to do anything usefule is not a process within the meaning of 101.
Look at Bilski's summary of Benson: data in, data out.
Therein lies the vice.
101, See Benson about "mental steps." Also see the 9th Circuit case in Halliburton.
I would also ask you to read the Government brief in Mayo.
A mental "step" in a claim is given weight to the extent to which it modifies a physical step to cause some new effect. E.g., place an egg in boiling water, count to 100, then remove the egg. The counting to 100, albeit mental, takes time, all the while the egg cooks.
Diehr: the math, like counting to 100, modified how long the mold stayed closed. This modified the process, producing a new and better molded product.
The math was integrated in Diehr because it modified a physical step to produce a new result.
I think that was the whole point of Diehr. So long as we leave it at that, we agree.
“We Win!”
We always win.
I would ask you politely, then, to avoid riding that high horse over there.
Hardly.
The SC truly clarified the MOT in Mayo.
They have to modify something physical to produce something new.
Mayo.
A method that produces signals is eligible. However, a signal is not an article of manufacture.
The distinction is clear, not so?
Prior art SHOULD have no roll in 101 considerations. However, somewhere along the line a court said “abstract ideas” are not patentable, even if they are expressed as processes. Then, the Supremes repeatedly confused abstractness with novelty and obviousness. Accordingly, now what is abstract or not depends on the prior art.
Again, i can’t tell to which post you are replying. But with the post immediately above yours, my point is that since thought is a process, mental steps are a process.
I don’t know what you are replying to here Ned. Are you saying that what a computer does is not a process?
Ned “101, the courts will also consistently held a mental steps are not process steps. ”
Can you please provide the exact quote and case for that? Being serious.
Ned: “A method that involves manipulation of mathematical representations of value, quantity, price, risk, and the like are not process steps.”
What about the Arrhenious equation?
Ned: “Add to a method that calculates these things conventional data-gathering, or using conventional tools to perform the calculation, adds nothing of patentable significance, at least according to Benson.”
What about Diehr’s use of a digital computer to do the Arrhenius calculations?
Thanks for the list Ned. The only problem I have is that some of your steps are not true mental steps. Meaning performed entirely within the mind. But nonetheless, when any of your listed mental steps are “integrated” in a process as a whole, that includes at least one step of observable behavior, the process becomes patent eligible subject matter.