By Dennis Crouch
President Obama today released information on planed executive orders and push for new legislation that will attempt to block companies from asserting their patents unless they are also manufacturing a product based upon the patented design. And at the same time, the President’s National Economic Council and Council of Economic Advisers released a report a report titled “Patent Assertion and U.S. Innovation.” The report generally takes the viewpoint that Patent Assertion Entities are bad for the US Economy and makes the bold claim that, in the past year PAE’s have threatened “over 100,000 companies with patent infringement.” The bulk of the report that identifies the “problem” is based upon the work of professor Colleen Chien (Santa Clara); Jim Bessen & Mike Meurer (BU); Mark Lemley (Stanford) and Michele Boldrin (WUSTL) & David K. Levine (WUSTL).
Despite the unknowing hyperbole of the report, the suggested actions are, for the most, welcome and will benefit the patent system as a whole. In fact, this move to finally address the problem of predictability of patent scope and patent validity hits the sweet spot of where problems emerge in the system. Of course, the devil will be in the details of these approaches.
Executive Actions:
1. Knowing Who Owns the Patents: Through the PTO a new rule will require patent applicants and owners to regularly update ownership information with the “real party of interest” so that the assignment records are accurate complete.
2. Tightening Functional Claiming. The PTO will provide new targeted training to its examiners on scrutiny of functional claims and will, over the next six months develop strategies to improve claim clarity, such as by use of glossaries in patent specifications to assist examiners in the software field.
In my view, these two elements are sorely needed and will generally improve the patent system without actually limiting the ability of patent assertion entities to derive value from their innovations through patent assertion. In addition, the PTO will begin a number of outreach mechanisms intended to provide assistance to non-patent-insiders who receive patent demand letter.
Legislative Actions:
1. Require patentees and applicants to disclose the “Real Party-in-Interest,” by requiring that any party sending demand letters, filing an infringement suit or seeking PTO review of a patent to file updated ownership information, and enabling the PTO or district courts to impose sanctions for non-compliance. [DC: This would add statutory back-up for the PTO rulemaking]
2. Permit more discretion in awarding fees to prevailing parties in patent cases, providing district courts with more discretion to award attorney’s fees under 35 USC 285 as a sanction for abusive court filings (similar to the legal standard that applies in copyright infringement cases). [DC: This can be helpful if allowed to go both-ways, although courts generally find that patent litigators are the most well-prepared and honorable of any that they see in court.]
3. Expand the PTO’s transitional program for covered business method patents to include a broader category of computer-enabled patents and permit a wider range of challengers to petition for review of issued patents before the Patent Trial and Appeals Board (PTAB). [DC: This has the potential of capturing a substantial percentage of issued patents, but that may be fine.]
4. Protect off-the-shelf use by consumers and businesses by providing them with better legal protection against liability for a product being used off-the-shelf and solely for its intended use. Also, stay judicial proceedings against such consumers when an infringement suit has also been brought against a vendor, retailer, or manufacturer. [DC: We are on our way here toward a fair use of patents.]
5. Change the ITC standard for obtaining an injunction to better align it with the traditional four-factor test in eBay Inc. v. MercExchange, to enhance consistency in the standards applied at the ITC and district courts. [DC: The focus here is to get patent assertion entities out of the ITC]
6. Use demand letter transparency to help curb abusive suits, incentivizing public filing of demand letters in a way that makes them accessible and searchable to the public. [DC: This sounds good, I wonder how those writing demand letters would respond.]
7. Ensure the ITC has adequate flexibility in hiring qualified Administrative Law Judges. [DC: However, must ensure that the flexibility is not used to hire because of particular political bent.]
Certianly Oboma hasent adressed the root issue of who got hijacked on these new rules he is implementing. He refuses to mention the plight of the invention conciever who gets hijacked and thrown under the bus in each patent case or the injustice of the facts due to the money monopoly and exclusion that inventor indegency dictates. Wile moneyed titans fight over the true concievers invention thugs paid off with 1500 to intimidate the conciever into terror conceptions then sell the invention to other thugs who battle other thugs called infringers. And were suposed to feel sorry for the infringers I dont think so?
The real parties of intrest is one good thing in this legislation what they conveniently left out is who is the inventor at filing definately not a corperation thats for sure. Its a critical factor in determining who gets the patent and the retention of the incentive to create and retention to the cival rights of the inventor to a patent. I cant believe Congress or a legitimate president can be making these retartive changes just when we need jobs creation. He apears to go every wrong direction possible
Ned you may want to read the PTO’s supplemental guidelines on 112 because the PTO and the cases cited by the guidelines do NOT limit 112 6th to the magic words “means for” or “step for” anymore.
You’ll also want to read the precedential decision by the PTAB in ex parte Rodriguez from 2009 regarding “configured to”.
ALL software “system” claims these days could and/or should (depending on your opinion) fall under 112, 6th/f
“Ned seems happy to be haunted. I think it is because Ned gets paid per response.”
Is someone willing to explain this? I saw an oblique comment like this yesterday.
In my visits here, Ned seems stubborn to the point of silliness and in particular sees in SCT/CAFC opinions “writing on the wall” that simply is not present, but what’s with the allegation of paid blog commenting?
“No… your friend “anonymous” did…you seemed to be jumping in …on his behalf.”
See, now that’s your problem. You make assumptions from moonbeams, Mooooonbeam. I have no friends here, least of all “anonymous” (or you). I am just me. I show up about twice a month, and I use the same name until I’m done with whatever convo is involved.
“…you agree [that if greedy lawyers get away with a scheme, then it shouldn’t be called isolated.]”
Yes, I would agree with that. It’s irrelevant to my post that you decided to jump upon, but I agree with it.
“Fixed”
As many times before (and as many times not engaged), cite please for this ‘fixed’ conjure.
If => of
Into => unto
Ned,
Except one thing: components if machines into themselves (rivets, tires and bullets),
A rifle does not become a new rifle because one changes the ammunition.
That’s true, Ned, but a weapon system defined as comprising a rifle and ammunition does, even thought the ammunition can be removed. I don’t think this fixture analogy of yours is very helpful.
Les, the program has to be part of the machine for there to be a new machine.
A rifle does not become a new rifle because one changes the ammunition. It does become a new rifle when one changes the barrel.
The question is not about which kind of memory the program is loaded. The question is whether the program is fixed, like fixtures in real property, such that it can fairly be said to be part of the machine.
And, also, if this horror has been going on since 1998 then that is 15 years. Shouldn’t all the giant broad patent applications be out there for prior art by now?
You see again we have these giant big picture calculus that just doesn’t add up.
What about just waiting. If there really are all these giant broad patents, then it won’t be long before we have all these giant broad disclosures that should make it easy for examiners to reject based on 102 and 103, and all those earlier disclosures with have expired.
Why doesn’t anyone suggest turning maintenance fees into an annual renewal, like in most jurisdictions. Sure, it raises expenses for the little guy, but not as much as some of the proposals being tossed around in Congress, and some of these patents would have gone away long ago.
What the sam hill are you talking about?
A two year old could follow the sentence – why are you having difficulty with it?
not agreeing to this
Not agreeing to what? Learn to write like a 15 year old instead of a two year old.
Also of possible interest:
link to fed-soc.org
“Anon, at times I think that you are Judge Rader.”
Interesting that Prof. Crouch has not run a new piece on Rader’s rather public view, ran recently in the New York Times (opinion page, June 4).
It has the earmarks of a lively discussion, being co-penned by Patently-O associate (and current Rader clerk) David Hricik and even an academic, the vile Chien (in all fairness to the good Chief Judge, Chien’s ‘position’ seems to be taken as a worst case starting point).
Oh, and lest I forget for Leopold’s benefit, the upshot of it is that existing tools are already present to battle tr011s.
“
Writing in the Opinion Pages of The New York Times, Federal Circuit Chief Judge Randall R. Rader has focused on what he perceives as abusive litigation practices of “patent trolls.” Writing as lead author with Professors Colleen v. Chien and David Hricik, the Chief Judge and his coauthors state concerning such abusive litigation practices that trial “[j]udges know the routine all too well, and the law gives them the authority to stop it. We urge them to do so.” Rader et al., Make Patent Trolls Pay in Court, The New York Times (June 4, 2013).
”
That existing authority? LOL, part of it Leopold knows (because I told him): Rule 11.
Looky that – more people out there with English as a second language.
With all due respect, you are arguing philosophy. I can load a program into DRAM and run it or I can burn it into flash in place of the DRAM and run it. It makes no difference as far as the invention and the claims are concerned. While the program is in DRAM, the machine is the same as the Machine made with FLASH or is at least encompassed by the same claim.
If ya wanna get silly about it, you can call each boot up of the DRAM machine a separate count of manufacturing infringement of the machine claims, while the flash machine is only manufactured once.
But that’s the only difference.
anon,
Claim 1
Apparatus, comprising:
a computer configured with program X.
X is defined in the spec.
Disclosure: A program residing in non executable form on a remote server where it is cannot be executed; the program is downloaded, compiled and linked on a computer by a user for local execution over a limited period of time. (Cloud or zero client computing, the new thing.)
Is the claim supported, and if so, why?
Ned – anthropomorphication.
Why do you ignore this?
I will tell you why: you depend on this to somehow paint the computer has somehow sentient and ‘running’ something apart from its own self – it’s own machine.
The cloud – LOL, as if the machine ATTACHED to the cloud, does not include a configuration of such attachment.
Intellectual honesty Ned – it will set you free.
“your position is STATE STREET BANK
LOL – more deception Ned.
You tried this angle in the past as well. When you did, I corrected you and told you that my position was built comepletely outside of the State Street Bank position and I did not reference that case at all.
Time for more than just a little intellectual honesty.
Ned,
You continually get the holding of Alappat wrong.
I have explained this to you many times now. Why do I need to retread through the facts when I have already done so? When a case has more than one issue, and a decision can go against a party for more than one reason, and the court provides rulings on these multiple items, there can be multiple holdings.
Each of the holdings are still holdings.
Time to drop your crusade on this point (do you remember my lesson to you with Bilski?)
Why don’t you pick up and answer some of the other points I have been pressing you for? Cat got your tongue?
anon, you continually rely on dicta.
Why don’t you discuss the facts of Alappat?
anon, Alappat did not decide what you think it decided. That case involved a claim to real hardware. The MPF clauses all read on real, bone fide, hardware.
The case that supports your position is STATE STREET BANK, a case that is remembered in infamy, to quote FDR. That case decided that a programmed machine was supported by the programs which it ran.
State Street Bank. Indeed.
Night, I am not debating that a configured computer can be a new machine. I am debating whether a disclosure that only shows a standard old computer being used to run software supports such a claim.
Imagine for example that the disclosure shows software in a cloud. A configured computer is not disclosed, only that general purpose computers may be used to run cloud software. Is the claim to the configured computer supported?
Just signs of his ever-present eplectic rants of rage which stem from his work in an occupation that he does not believe in.
Look at his last response:
Strawman? When he his talking about greed, money is no strawman.
Suckie? LOL, I’ve been using a consistent and solitary moniker since I volunteered to do so (unlike Francis, er, um, Keeping It Real, er um, well you get the picture)
Enjoy? Most definitely, as Malcolm’s agenda is constantly toasted with his own admissions.
MM, you appear to be getting grouchier and grouchier. I think anon is winning. He seems to haunt your every move.
Ned seems happy to be haunted. I think it is because Ned gets paid per response. It is an indication of his effectiveness. I suspect he gets rated on the number of responses.
So, we have some circumstantial evidence that Ned is a paid blogger and MM is not.
But, MM, you are being dogged and it is wearing on your nerves.
So how does the Left and the Right (with the White House in tow) answer?
Denigrate patents and those that would (gasp) enforce patents with their letters and lawsuits. Failing that, make patents weaker, make the process of getting them more expensive, and the rights they contain more uncertain. Change the law to force more lawsuits (joinder), then turn around and use the fact that more lawsuits have been filed as “proof” that the situation is “out of control.”
Someone tell me again who coined the perjorative “Troll” and why…?
Oh, right, no attack there…
/eyeroll
Oh Noes! the evi1s of MONEY !
There’s your strawman, Suckie. Enjoy.
NWPA,
just a nit (as I understand what I think you want to say), but you might want to use the language that the court did in Alappat.
There is no such thing as a programmed general purpose computer. Once a general purpose computer is programmed, it IS a new machine, a specific purpose computer, the specific purpose tied to the transformation of the machine with the programming, and – as even Malcolm as voluntarily admitted, “programmed to” is structural.
Ned, you accuse me of this platitude of “programmed to” is structural, while ignoring the fact that this is something that Malcolm has admitted to. Why do you resist this notion?
“They are NOT NEW MACHINES.”
If you have the law on your side, pound the law.
Ned, the law says they are new machines.
See Alappat
If you have facts on your side, pound the facts.
Ned, factually, they are new machines.
Do machines think? Do they decide to use that which is not a part of them? Do they decide to ‘run’ something outside of themselves? Do you remember your failure at the Grand Hall experiment? Oh wait, that’s right, you refused to engage that experiment. Must have been one h311 of a platitude.
If you have neither, pound the table.
Ned, in your case, please stop pounding the table.
The table thanks you.
MM: You mean judges making outrageous findings of fact and not applying the law? Burning patents at the stake by claiming they are “abstract” and applying a judicial exception that is supposed to be as narrow and as infrequently applied as possible.
You are right MM. It is worse than burning innocent women at the stake. It is taking place in the 21st century and being carried out by those that should know better.
6, you are an examiner. And you don’t know the law regarding functional claiming? Your job is to decide if it fits into 112, 6 or not. If not, it is not functional claiming, but recites structure.
” the evasion of the law”.
What we need is for the anit’s to stop trying to use the courts do what Congress is supposed to do.
Yes, Ned, it is a new machine. All your yacking and yacking is just wrong. A programmed general purpose computer is a new machine. You see, those of us that are skilled in the art, know this. We know that the von Neumann architecture is really just a trick. It is a way to reduce the machine to a small machine and then have the rest of the machine be emulated by the small machine. We know that. We know it is a new mahcine. Your iron age logic is ridiculous.
With all due respect, Les, there is a difference between a machine that is configured and using an old machine for a new purpose. The latter can be claimed as a method and not as a new machine.
In order to be a new machine, the machine must actually be different such that its operations are different. This can be done through circuitry, or through programming that is part of the machine. A good example would be CMOS code that boots the machine, micro-instructions, ROM code, an OS that loads and executes, and the like. Using the machine by loading and executing a program where the program is not even a semi-permanent part of the computer is quite different.
When one talks about configuring a machine, but the description is of a tax calculation program, we know the machine is being used and the claims, while seeming to claim a new machine, are not. They are instead claiming a process.
This is why the courts have been consistent over a very long period of time in treating claims to programmed machine like method claims. They are NOT NEW MACHINES.
What we need is for the PTO to step up and put and end to the evasion of the law that is going on here. If they see a claim to a configured computer, but the disclosure does not show anything more than a generic computer that runs software, the claims should be rejected as lacking support or being indefinite.
Speaking of China but the same logic applies to the U.S.: ‘“You’re not going to get a more vibrant private economy unless you have greater protection of intellectual property,” said Nicholas Lardy, a senior fellow at the Peterson Institute for International Economics. “Clearly one of the things that inhibit private economy is lack of protection for intellectual property.”
Oh Noes! the evi1s of MONEY ! Run and Hide, Run and Hide !! And if MONEY is so bad, then property can only lead to that typ eof thing ans we should banish property
/eyeroll
LOL
link to youtube.com
What Would Jane Do?
I don’t even want to know why you are thinking of 12 year old Chinese boys…
Speaking about 1ies and deliciousness,
What is the controlling law concerning the exceptions to the printed matter doctrine?
How about that “configured to” is structural language stance?
And the old gambit of “free to challenge?” LOL – we’ve played that game Malcolm, remember? I posted that veryone agreed with everything I said (and now, will say). Anyone not agreeing to this is “free to challenge.”
LOL
No wait,
LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL
LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL
LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL
LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL
LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL
LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL
“But you have to recognize that the advocates here want to claim a computer calculating numbers, where the number represent something like price or an alarm limit or the result of BDC->binary or the correlation between metabolite level and the need to increase or decrease dosage. There the computer is not new. It is simply being used for its intended purpose: to calculate. It is not part of a larger apparatus or process, and its programming is not doing anything new.”
By this logic, almost nothing is patentable.
Almost all inventions are combinations of elements, each element performing its “intended purpose” when that purpose is defined broadly, as you have done. Granted a computers intended purpose includes performing calculations generically. However, at the inception of computers, they were not intended to perform my particular new calculation. No one had ever though to perform my new calculation before.
So, configuring a computer to perform my new calculation makes a new machine.
Likewise, wood has, for a very long time been intended to be used as a structural frame. For thousands of years, cloth has been used to harness the wind. Rope and cable and pulleys have been around for a very long time and used to pull and provide tension on members.
Yet, when Wilbur and Orville used each for their intended purpose in a new way, they were able to patent the new configuration of old elements.
you just answered with a self-serving circular logic ‘answer’
No, I didn’t, Dumpty. You asked for the basis for changing the law and I provided the answer. Maybe if you learn English someday you’ll learn to how ask better questions. But that’s not going to happen at this late date, Gramps. You’re stuck with the syntax of a 12 year old Chinese boy who thinks he’s David Foster Wallace.
I said nothing about isolated incidents,
No, you didn’t, Suckie. Your friend “anonymous” did and you seemed to be jumping in to carry on the “argument” on his behalf.
So I take it you agree with my assertion: “if you let a bunch of greedy lawyers get away with a greedy money-grubbing scheme, it’s meaningless and idi0tic to refer that scheme as an “isolated incident.”
Thanks.
Spammy McFilter: because intelligent and educated people (in fact like lawyers even) never 11e.
In fact, it was the creationists who did the ly ing. Those l1es were exposed and that is just one of the reasons why their inevitable loss in the Dover case was so incredibly delicious.
As you know, Spammy, any academics who are predisposed (or who appear to be so predisposed) are free to challenge any and all of the facts and arguments put forth by your infamous “enemies”. If those other academics wish, they can even point out with specificity an example of one of the alleged “l1es” that was told.
But that’s what not what you and EG prefer, is it? You’d rather just hurl childish insults at “academics”, probably because that’s what your daddy did at the dinner table before he went down into the basement to polish his gun.
Well, first, what I meant to say is the heart or core of the invention is in the new way to figure out how to drive OO.
Clearly, the invention can be embodied in a device. Moreover, it is quite likely that my client and/or her competitors sell devices. Accordingly, it is entirely appropriate to claim device embodiments.
So, it is absurd and unfair for you or the courts to attempt to denigrate claims to devices as “draftsmans art”. The inventors invent devices.
Additionally, if my client is force to enforce said patent, she would much rather it be via a fair fight against her competitor than against an end user.
In many instances, methods are carried out by end users or by devices under the control of the end user.
And, no, 101 clearly includes methods. They are the first category listed for heavens sake. It is the courts that have legislated from the bench and created confusion here. All of the judicially identified exceptions are utter nonsense.
So Obama can de facto limit 101? Bibi, Congress.
No answer to this Ned? No engagement? Only platitudes from you, I see.
Funny that Malcolm runs away from this discussion to troll me in my dialogue with Leopold on another thread.
Ned, do machines think?
The process did not produe a new result – in the single use of the process.
It is in the case itself Ned! – read the case – perfect cures of rubber were not a new result.
I laugh at this as you interestingly enough abandon your canard Point of Novelty in this seminal case, because that Point of Novelty was the software use of the math equation – all other elements were old.
Your duplicity and selectivenes is your own greatest weakness.
Ned,
I see that you have a significant amount of difficulty addressing the points raised against you.
Return to my example of the multitude or resistors, parallel, series and combination thereof configurations.
Return to my point of the controlling LEGAL authority of the excpetions tothe printed matter doctrine, or to the notion of anthropomorphication. Do machines think, Ned?
Do you think, Ned?
“sits on a shelf someplace in the same room or house or office building or on the web someplace to be called or loaded or executed…”
Ned, I have addressed this with you before. Rivets, tires and bullets all can sit on a shelf someplace until they are ‘called’ or ‘loaded’ or ‘executed.’ Patent eligibility is unaffected by this notion. You still have failed to provide a legal basis for your view – as I have repeatedly asked of you. Who then, is engaging only in platitudes?
You make no point here to support your position.
“at the will of the user”
Likewise, this does not support your position.
You continue to ignore the plain words of Alappat. It matters not by whom, whether that is ‘automatic’ or at the volition of a user.
I will bring you back to the Great Hall experiment. If you have a computer that has not been changed with the software, that has not been configured with the software, can you do what is claimed in the software-patent? Or do you NOT yet have a new machine?
Either you do not understand machines, or you are just making a fuss but with an explicit (and no good) purpose. We both know why you do this.
Time for a little intellectual honesty Ned.
Anon, clearly you suggested that the process did not produce a new result.
Nice strawman Ned – I did not ever say that the process as whole was not improved remarkalby.
Try again to read what I actually wrote.
Night: “A bit is being transformed. The electrons are being moved. Voltages are changing. You say a single bit has no structure? Well, with that arugment your doorknob has no structure as it is composed of atoms? Oh but you say the order of the atoms gives it structure. But, I say the combination of the bits gives them structure. And, the transformation of the single bit depends on the other bits.”
Night, I see you have a significant amount of difficulty distinguishing between information content of a circuit and the circuit itself. You speak of Voltages and circuits. These are physical things indeed. They are structures. But what they mean or represent is abstract.
I’ve given you an example of a cross. It physically is a structure composed of two beams attached in a particular manner. To some though, the cross has meaning. It represents Christ or the cruelty of the Roman Empire or some such.
In the Catholic religion, the priest blesses a host. In a mind of the Catholic it is transformed into the body of Christ. But whether it is or not so transformed, it remains a simple piece of bread. The transformation, to the extent it occurs, is abstract. It is a mental leap of faith.
When you see a circuit that has a bi-stable state, you see a bit. But in reality, it is simply a circuit. The information content of that circuit is in your brain. It is abstract.
Ned,
Do you realize that your main problem is that you ignore the facts of the case, ignore the law, ignore the plain words, and strive only for a desired end result that fits your agenda?
Then you have the audacity to play Malcolm-like games instead of addressing the points I raise (btw, you STILL have not addressed the points of the controlling law of the exceptions to the printed matter doctrine or the concept of anthropomorphication).
And may I remind you yet again who exactly was it that used your supplied reference to correct your attempt at misunderstanding and misapplying the holding of Bilski regarding your crusade against business method patents?
Your acknowledgment of this is on the record, Ned.
Anon, from the simple fact that you insist and others insist that the programming as part of the machine. If it is not part of the machine, but sits on a shelf someplace in the same room or house or office building or on the web someplace to be called or loaded or executed at the will of a user, then the programming itself is not not part of the machine. Either you do not understand machines, or you are just making a fuss but no purpose at all.
Anon, that you recognize that your main problem in determining holding versus dicta is that you do not read or even consider the facts of a case?
Anon, your insistence that nothing new was done in Diehr is remarkable. The process as a whole was improved, remarkably. It is the fact that you do not get this that is itself remarkable.
Really, Ned, you should be ashamed of yourself. You are evoking an appeal to the ignorant.
You guys just play these games of trying to conceptualize a completely new science of information processing in iron age terms and then try to come to a conclusion that is false because your analogies are fallacious.
Just sickening that educated people would engage in this type of argumentation.
A bit is being transformed. The electrons are being moved. Voltages are changing. You say a single bit has no structure? Well, with that arugment your doorknob has no structure as it is composed of atoms? Oh but you say the order of the atoms gives it structure. But, I say the combination of the bits gives them structure. And, the transformation of the single bit depends on the other bits.
You see you lose, although I am sure you will continue to plow logic fallacy after logic fallacy into your arguments.
The bit is just like a grain of wheat in Deener. There can be no question of that. Those gates are a machine that is processing the information that takes the form of electrons and that information is being transform. That transformation requires time, space, and energy and it obeys the fundamental laws of physics and there is a law of physics of the conservation of information.
David, I know this, of course. But there is a problem. The problem is that if you don’t recite structure then you fall into 112, 6. There are cases that state that a circuit configured to blah is a structural claim. We don’t have a case right on point for a method that is implemented in software.
Attack from the Right.
Thank you for your thoughtful comment. IMHO the debate boils down to two camps:
1. Collectivist – optimal use line of thinking.
2. Individualist – Locke’s view (Advancing the individual is advancing the community, because after all the community is nothing more than a group of individuals.
Your analog to Kelo is a good one as one can see (1) and (2) in stark contrast in that opinion.
Unfortunately, in our current patent debate, google and intel (market power driven enterprise) have no use for any functioning IP system (with the exception of an employee walking out the door with the source code – whom they would have jailed). So they have turned their unmatched PR firepower on the system as a whole. Indeed, the more they break it, the more they complain of the ‘broken’ system!
Let everyone note that the person that dropped out is 6.
(And note that the structure should be seen from the perspective of one skilled in the art. If you don’t understand it, then put some effort in to understand it and don’t expect us to somehow figure out a way to explain new technology in your kindergarten understanding of science and engineering.)
Did you hear that commie Posner, black heart Stern, academic integrity lapser Lemley, cranky old goat without morals Lourie, man without a clue Mayer, and the rest on the Island of Filthy Minds.
6, “you can’t make a function into a structure just by saying that it is so.”
6, what I need do is comply with 112. Enable anyone of ordinary skill in the art to build and practice the invention. 6, the person of ordinary skill in the art knows 100’s of ways of implementing the claim with the teachings of the specification. Each one of those implementations defines a structure. The combination of them all defines the structure that is claimed.
This is no different than mechanical claims. A hinge. People make functional claims all the time in the mechanical arts. It is the only way we could write a patent application without it being an encyclopedia. And, 6, remember that the applicant is presumed to be the person best able to explain their invention. Frankly, I really don’t understand how you can’t understand these arguments. I suppose a simple example might help you. A simple claim with several hundreds ways it could be implemented. And, then a discussion of the structure that is defined by these implementations.
And, as to your computer readable medium: 6, how could something without structure cause a computer to behavior in radically different manners?
And, goodness, take your pill. I don’t know why you get to get away with it. Could be that our good Professor doesn’t have as high expectations for you as he does for me. (Couldn’t resist a little jab.)
Malcolm,
Trying to imply that you did not make the admission (and we both know you did) is an ethical violation of deception – tantamount to 1ying.
Remember, Prof. Crouch has explicitly stated that 1ying is not allowed here at Patently-O.
accuse-others-of-what-you-do is your speciality, Malcolm.
Accuse me of moving goalposts as you yourself move them. Fish scales was talking about 101 to which you replied “depends” to the 101 point, at the same time you wanted to import a 102/103 argument. Nope – can’t do that.
Try not to self-defeat so fantasticly. 9-0 Baby.
6,
(sigh)
If ‘structure’ is not required to differentiate, then there is not failure to show possession of that ‘structure.’
Note the quotes this time, please, as structure is there because in this art (a little something that you forgot about – the art dictates what needs to be there – not your rather unimportant desires), structure is present in the phase “configured to.”
Even Malcolm has volunteered this admission.
“intelligent, educated segment of the culture”
Because intelligent and educated people (in fact like lawyers even) never 1ie.
/eyeroll
“The invention is in the new way to figure out how to drive OO”
Could not have said it better myself Les, so why don’t you guys go ahead and claim what you subjectively believe to be “the invention” and stop beating round the bush with all this “apparatus” nonsense? Little ol 101 stopping you? Why then should the draftsman’s art be able to save the “invention”?
“Third, 6, you don’t get to say how the structure is presented. ”
I sure as f do brosef. That’s what my trusty friends 102 (I say that it has to be presented in a manner that distinguishes) and 112 (says that it has to be presented in a manner that shows you have possession of the whole functionally recited genus) are for along with their cousin the drawing regs. Your mere assertion that we don’t get to say how the structure is presented, and some old timey PTO ta rds lapping it up doesn’t make it so. The rules say you draw it, the law says you show possession and claim in a way that distinguishes. Not to mention a few other things the lawl says re this subject.
And to be clear, I don’t mind how you present the actual structure SO LONG AS YOU ACTUALLY PRESENT IT AT SOME POINT INSTEAD OF JUST A FUNCTION TACKED ON TO NOMINAL STRUCTURALLULZ LANGUAGE. You can’t make a function into a structure just by saying that it is so.
And as to why I get to say such things to you, I probably don’t, who knows perhaps it will disappear in a moment. But I will say this, perhaps he recognizes your trollin and how bad it will eventually infuriate the normal person trying to hold a frakin normal conversation which you all the time just simply drop out like a little after it reaches a head, and this is like the 10th time now. Or, as here, you simply change the subject. You changed the subject just in the last post onto what I do or do not get to say instead of GASP just wt f is going on in terms of substance in these sorts of cases (WHICH WAS BTW THE PREVIOUS TOPIC). We can talk about what I get to say later.
Like seriously? This isn’t even an actual prosecution, you could at least TRY to put down the actual precise structure THAT CAUSES THE RECITED SUPPOSED FUNCTIONALITY of even ONE CLAIM EVER ISSUED of these types. But you won’t even do it even OFF THE RECORD. It should take no more than like 10 minutes according to your magical ordinary skill. And you could save a lifetime of arguing.
“Nothing approximating the words “physical structure” anywhere in there, 6.”
Don’t show your structure, fail to show possession of your structures.
“No, I don’t. But I do know that if you let a bunch of greedy lawyers get away with a greedy money-grubbing scheme, it’s meaningless and idi0tic to refer that scheme as an “isolated incident.” “
Uh, strawman much? I said nothing about isolated incidents, and my comment (which you appear to have made fun of) had only to do with one thing – manufacturing patentees not going after consumers. And this was only a comment on Sixie’s statement about patent claims appearing to target such. Greedy lawywers and the greedy money grubbing schemes wouldn’t seem to have anything to do with manufacturing patentees, by the way.
I guess “No, I don’t. “ is probably where your answer should have stopped, Moooooonbeam.
Or, if you just did NOT screw up the system, they’d still be direct infringers.
Jane Fonda will be so happy.
LOL, do you miss Francis and Keeping It Real (and who knows how many others)?
“fixed… automatic”
I have asked many times before – maybe this time I will get an answer – Ned what basis in law do you get this new requirements from?
Maybe these ‘platitudes’ will be ‘engaged?’
The computer being used…
Still ignoring the holding from Alappat.
Ned, the ‘something done’ in Diehr was not new: curing rubber.
The ‘point of novelty’ was software used to read on a continual basis (old) temperature inputs from (old) thermocouples and use an (old) math formula to open an (old) door.
Point of Novelty Canard Alert
Ned,
Let’s face it, business methods (as a category) are patent eligible. See Bilski.
We’ve been on this Merry-Go-Round before.
LB, lets not conflate. Functionally claiming old elements has always been acceptable. Ditto the use of explanatory language in claims.
The only thing that Malcolm and I ever complain about is claiming THE INVENTION functionally. That means the novelty itself must be defined by its result and not by the means or methods disclosed.
The vice in this goes back to the days of Wyeth v. Stone, O’Reilly v. Morse, and was repeated in such cases as Perkins Glue, Wabash Appliance and Halliburton.
Do not intentionally misunderstand us, please.
I bet you can => I bet you wish you can