Software Patents are Only as Dead as Schrödinger’s Cat

By Robert Plotkin
October 6, 2014

Although the U.S. Supreme Court’s recent decision in Alice Corp. v. CLS Bank has caused some to conclude that software is no longer patent eligible in the U.S., or that the Alice decision renders all but a narrow range of computer-implemented inventions patent ineligible, a careful reading of the Alice opinion indicates that such conclusions are incorrect.

One reason for the public’s misunderstanding of Alice is that the decision has thrown the USPTO into what appears to be a state of confusion. Just days after the decision was released, the USPTO issued a memo to the Patent Examining Corps explaining the USPTO’s preliminary interpretation of Alice, which indicated that examiners should continue to examine patent applications for patent eligibility in much the same way as they had done before Alice. Then, just a few weeks later (and as reported in IPWatchdog), the USPTO did an about-face without any explanation and started withdrawing Notices of Allowance from patent applications—even in cases in which the issue fee had been paid—and issuing patent eligibility rejections based on Alice, using nothing more than a standard form paragraph. In my own practice I have seen wide disparities among examiners in their application of Alice to individual cases, ranging from Alice-based patent eligibility rejections for every claim containing the word “computer” to Office Actions whose reasoning seems unaffected by Alice, and everything in between.
The environment for patent applicants and examiners that has resulted from such inconsistent treatment of Alice by the USPTO is one in which neither examiners nor applicants have clear guidance about how the USPTO is interpreting and intends to apply the Alice decision. This makes it difficult for examiners to know whether and how to issue Alice-based rejections, and for applicants to know how to respond to such rejections. In this environment, software patents are not dead; instead, they are, like Schrödinger’s cat, in an indeterminate state, simultaneously dead and alive until examined by an observer. In this case, the uncertainty over the impact of Alice on patent prosecution will only be dispelled when the USPTO analyzes the Alice opinion thoroughly and announces the Office’s interpretation of that opinion with a clear and unified voice. At that point, inventors, business owners, patent prosecutors, and patent examiners will be able to return to playing their respective roles within a rational patent system in which all parties involved seek to promote innovation according to fair, clear, and consistently-applied rules.

 

A Call to Action: Let’s Stand Our Ground Against Alice-Based Rejections

It is time for all of us who care about innovation in the U.S.—including patent applicants, patent prosecutors, and patent examiners—to take action to ensure that the U.S. patent system continues to promote innovation in the face of the Alice decision. The primary goal of this article is to provide practical guidance to achieve this end.

The guidance that I provide primarily takes the form of an array of arguments that patent applicants can use when responding to Alice-based rejections of computer-related patent applications. My hope is that applicants will use these and other arguments to hold the USPTO appropriately accountable in each and every case in which the USPTO issues an Alice-based rejection, and thereby to cause the USPTO to sustain its burden of proof in connection with such rejections. I also hope that the arguments provided herein help patent examiners to understand the burden of proof that they are legally required to sustain, in order to help them decide to issue Alice-based rejections only in cases in which such rejections are justified, and to withdraw Alice-based rejections when the facts and the law require them to do so.

Requiring the USPTO to justify every Alice-based rejection that it issues will both raise the cost to the USPTO of issuing such rejections and provide patent applicants, individually and collectively, with far greater information about how the USPTO is applying Alice than can be gleaned currently from the boilerplate rejections emanating from the USPTO. It will be important to watch the USPTO’s reactions to the arguments provided here, in order to further refine and improve subsequent responses to Alice-based rejections.

Most other public reaction to the Alice case has focused on flaws in the logic of the decision and on possible appellate responses to the decision. Although such strategies are important, the bottom-up, case-by-case, prosecution-based approach that I propose represents a broad-based front line defense against Alice, to be fought by patent prosecutors in the trenches as we prosecute individual patent applications on a daily basis. Such a prosecution-based approach will supplement litigation strategies and provide ammunition to litigators who seek to attack Alice in the federal courts.

 

Use the Alice Opinion to Argue Against Alice-Based Rejections

A thorough and careful reading of the Alice opinion reveals that the opinion itself provides a wide variety of support for the conclusions that computer-related inventions are not inherently patent ineligible and that a stringent test must be satisfied to justify rejecting any particular patent claim as patent ineligible. My first recommendation is not a particular argument to be used against Alice-based rejections, but rather a general suggestion that arguments in response to Alice-based rejections should rely on and cite specifically to the language in the Alice opinion itself. Such an approach is particularly valuable not only to demonstrate the flawed logic of most Alice-based rejections being issued by the USPTO in general, but to cut through the generic assertion by such rejections that the claims at issue are patent ineligible abstract ideas by pointing to the much more detailed requirements actually established by the Alice opinion.

The specific arguments that I recommend below are all drawn directly from the Alice opinion for three reasons. First, they do not rely on any future change to the law—they accept Alice as binding precedent which, for better or worse, is the reality that patent applicants face today. Second, doing so restricts the ability of an examiner to claim that any of these arguments was overruled by, or is inconsistent with, the Alice decision. Third, the fact that I have been able to derive a large number of arguments solely from the Alice opinion, without turning to any previous Supreme Court or Federal Circuit opinion, implies that the arguments listed here are just the tip of the iceberg and could be expanded upon significantly if previous Supreme Court and Federal Circuit precedent are also relied upon.

Now, my proposed post-Alice playbook.

 

Require the Examiner to Apply the Alice Two Step Test to the Express Language of the Claims

The Alice decision sets out a two-part test for determining whether a claim is directed to patent eligible subject matter: (1) determine whether the claim is directed to an abstract idea;[1] and (2) if the claim is directed to an abstract idea, then determine whether the claim’s elements transform that abstract idea into a patent eligible application of the abstract idea. Therefore, a claim’s subject matter is patent ineligible under Alice only if the claim is directed to an abstract idea under step (1) and the claim’s elements do not transform the abstract idea into a patent eligible application of that abstract idea. Otherwise, Alice provides no justification for the conclusion that the claim’s subject matter is patent ineligible.

Although it might seem too elementary to be worth mentioning, responses to Alice-based rejections should require the examiner to articulate his or her reasoning under the two step patent eligibility test set forth in Alice, as applied to the particular claims that have been rejected, and assert that failure by the examiner to do so constitutes a failure of the examiner to satisfy his or her burden of establishing a prima facie case of patent ineligibility.

All of the Alice-based rejections that have crossed my desk so far have failed to satisfy this basic requirement, since they all rely on a boilerplate paragraph promulgated by the USPTO for use by examiners. This paragraph merely states that the rejected claims are directed to an abstract idea, which is then summarized in a few words (e.g., “intermediated settlement”), followed by boilerplate text stating that the additional elements of the claim fail to transform the claimed abstract idea into a patent eligible application of the abstract idea. The boilerplate paragraph is not accompanied by any explanation of how particular elements of the rejected claims fail to transform the purported abstract idea into a patent eligible application. Any such “cut and paste” generic rejection clearly constitutes failure by the examiner to satisfy his or her obligation to apply the law to the express elements of the rejected claims.

Applicants should require every examiner who issues an Alice-based rejection of a claim to apply the Alice two part test by demanding that the examiner:

  • clearly and specifically articulate the abstract idea to which the claim allegedly is directed, and point to specific language in the claim in support of the examiner’s conclusion that the claim is directed to that abstract idea; and
  • acknowledge all express limitations in the claim (rather than completely ignoring the existence of such limitations, as the USPTO’s boilerplate paragraph does), and explain how those express limitations fail to go beyond merely providing an instruction to apply the abstract idea.

If an examiner fails or refuses to make out at such a prima facie case of patent ineligibility in accordance with the Alice two part test, the applicant should argue that the finding of patent ineligibility is unjustified and should be withdrawn.

 

Ride the Alice Seesaw

Many seem to interpret the Alice decision as sanctioning rejection of claims based on a mere finding that a claim is directed to an “abstract idea,” and fear that the Alice decision authorizes examiners to issue quick rejections of claims based on the mere assertion that those claims are directed to abstract ideas. This seems to be the interpretation embedded in the USPTO’s current boilerplate rejections. Yet such an interpretation is inconsistent with the reasoning in the Alice decision itself, which expressly reaffirms that not all claims drawn to abstract ideas are patent ineligible. In particular, the Supreme Court in Alice acknowledged that “at some level, ‘all inventions … embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.’ … Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. … ‘[A]pplication[s]’ of such concepts ‘’to a new and useful end,’’ we have said, remain eligible for patent protection. …”[2]

Alice, therefore, does not give examiners free rein to simply shout “abstract idea” in support of a claim rejection and then end their analyses. In fact, the Alice two part test—which requires examiners to articulate a particular abstract idea to which each rejected claim is directed—forces each examiner to select a point along the abstract-concrete continuum at which to define the alleged abstract idea to which a particular rejected claim is directed. The examiner may, in other words, define the alleged abstract idea very abstractly, very concretely, or somewhere in between. Whatever choice the examiner makes when defining an abstract idea as the basis for a claim rejection, a corresponding argument is available to the applicant to traverse that rejection. In no case does the examiner get a free lunch.

I refer to this as the “Alice seesaw” because:

  • the less abstractly (i.e., more concretely) the examiner defines the alleged abstract idea, the stronger the applicant’s argument that the alleged abstract idea is not an “abstract idea” as defined by the Alice opinion, such as because the alleged abstract idea is not a fundamental practice that is long prevalent in its field; and
  • the more abstractly the examiner defines the alleged abstract idea, the stronger the applicant’s argument that the claim is directed to “significantly more” “than an instruction to apply the abstract idea.”

One important consequence of the Alice seesaw is that rejections based on alleged abstract ideas that the examiner defines very abstractly are not an automatic death sentence for the rejected claims, as many seem to think. A clear and well-written claim is likely to contain “significantly more” than a very abstractly-defined abstract idea, and therefore should satisfy step two of the Alice test for patent eligibility. In the following sections I describe the arguments represented by the Alice seesaw in more detail.

CLICK TO CONTINUE READING… In the next (and final) article the author will describe specific strategies for responding to particular Alice rejections.

____________________________

[1] In the rest of this article I will refer only to “abstract ideas” for ease of explanation, even though the Alice decision applies more generally to abstract ideas, laws of nature, and natural phenomena.

[2] I have omitted citations from, and added emphasis to, this and other quotations to the language in Alice for ease of explanation. To avoid cluttering the text, I have not expressly indicated each and every instance where citations have been omitted or emphasis has been added.

The Author

Robert Plotkin

Robert Plotkin is a founding partner of Blueshift IP. Attorney Plotkin has been a leader in obtaining software patents for over two decades, and consistently obtains software patents for clients even after the Alice Supreme Court decision and the passage of the AIA.

For more information or to contact Attorney Plotkin, please visit his Firm Profile Page.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 27 Comments comments.

  1. Simon Elliott October 6, 2014 5:15 pm

    I question how many clients in the software industry area are willing to pay the much higher costs that come with more extensive prosecution and arguments.

  2. Inside informant October 6, 2014 6:13 pm

    I expected much worse from this article. However, overall his positions are more or less consistent with law and well reasoned even if they go a bit far. For instance, one cannot “require” an examiner to do anything from the outside, though you can appeal to his superiors or the board for mercy from the rejection issued. I’m not really sure if there is such a thing as a burden of establishing a prima facie case of patent ineligibility” since I’m not even sure that there is such a thing as a ” prima facie case of patent ineligibility” in the first place. I’m also not sure that examiners have any “obligation to apply the law to the express elements of the rejected claims”. In fact, the line of decisions from Benson to Alice were made with the express purpose (it was made express in Mayo) of not paying attention to the draftsman’s efforts to instill eligibility to the ineligible. Finally I should note that no examiner should be issuing any “Alice based rejections”. Claims are rejected based on statutes, not cases. In this instance, 101. You also state that “the applicant should argue that the finding of patent ineligibility is unjustified and should be withdrawn” (if no prima facie case made) and I’d think that in such an event they should cite In re Jung and In re Lovin.

    Even so, good luck with all of the above.

    The one thing I’d take great issue with is that alice is a decision “which expressly reaffirms that not all claims drawn to abstract ideas are patent ineligible”. That is simply not true. If your invention is drawn to an abstract idea it is done. The end of the line for that claim has been reached. There may be some claims (which are not drawn to abstract ideas) but which involve an abstract idea in an oldschool invention application of that abstract idea like in Diehr. They’ll be even rarer than 101 exception cases though, and all of them will not in truth be drawn to the abstract idea at issue, just as Diehr was not drawn to the Arrhenius equation.

    Hope you’ll address that in your continued article.

  3. Night Writer Patent Attorney (NWPA) October 7, 2014 8:58 am

    >> Finally I should note that no examiner should be issuing any “Alice based rejections”.

    Well, I think the reality is that Alice is not statutory. It is clearly new federal common law.

  4. Night Writer Patent Attorney (NWPA) October 7, 2014 9:05 am

    The calculus of this is simple to understand. The SCOTUS is simply not going to take cert for any case that lost under 101. They will let the Fed. Cir. do what they will for years. I don’t think you guys get that the SCOTUS has just legislated. You imagine they will step in when the Fed. Cir. gets out of control 101’ing everything, but they won’t. They will probably at this point just remand cases that passed 101 and tell the Fed. Cir. to reconsider.

    Probably the end of 101 from the SCOTUS for years. That is my prediction. And where does that leave us? Not good. We are left with a Fed. Cir. that has a majority of judges that believe Stevens concurrence in Bilski should be law. Our only hope is for Obama to change his ways or for Obama to leave and a new president to be more favorable to patents. Google bucks go far in D.C.

  5. KenF October 7, 2014 9:07 am

    My (only somewhat) tongue-in-cheek suggestion.
    I’ve been getting these willy-nilly 101’s in connection with gaming machines. So, realizing that playing gaming machines brings on happiness/elation, i.e., they cause a release of seratonin, dopamine, etc., in the brain, I am shifting gears to now claim methods of inducing chemical transformation in the brain of a bettor, comprising, providing a gaming machine comprising . . . . . allowing the bettor to insert gaming token, allowing bettor to play the game, etc. Voila!
    In all seriousness, the part about state of confusion MAY be important to hammer on in the response. I just recently (last week) had an examiner tell me that he couldn’t help me find features to put into such a 101-rejected gaming machine claim to overcome the 101 rejection BECAUSE HE COULDN’T ARTICULATE ANY STANDARD.

  6. KenF October 7, 2014 9:11 am

    Premature Enter.

    My (only somewhat) tongue-in-cheek suggestion.
    I’ve been getting these willy-nilly 101’s in connection with gaming machines. So, realizing that playing gaming machines brings on happiness/elation, i.e., they cause a release of seratonin, dopamine, etc., in the brain, I am shifting gears to now claim methods of inducing chemical transformation in the brain of a bettor, comprising, providing a gaming machine comprising . . . . . allowing the bettor to insert gaming token, allowing bettor to play the game, etc. Voila!
    In all seriousness, the part about state of confusion MAY be important to hammer on in the response. I just recently (last week) had an examiner tell me that he couldn’t help me find features to put into such a 101-rejected gaming machine claim to overcome the 101 rejection BECAUSE HE COULDN’T ARTICULATE ANY STANDARD. He also told me that the examiners pretty much have to decide THE STANDARDS they are applying themselves. Doesn’t this precisely set up an arbitrary-and-capricious arguments? While I realize most examiners (and maybe even the Board, at times) don’t truly understand and respond to “legal arguments,” and that most applicants don’t want to spend the time/money to take an application to court for relief, it seems to me that this might, in fact, be a viable approach to take.

    I welcome responses to this suggestion.

  7. KenF October 7, 2014 9:14 am

    CONGRESS, not the President, needs to act to revise 101. Remember, ALL of this mess grew out of JUDICIAL finding of certain exceptions/exclusions to what is otherwise clearly stated in STATUTORY Section 101.

    (Looks like people are coming online at the moment and the comments are flowing fast and furious……)

  8. Night Writer Patent Attorney (NWPA) October 7, 2014 9:35 am

    The way it works is that any software application is now presumptively invalid. It is an abstract idea according to all the judges so far. And, then it is up to the patentee to prove they have added something more.

    Outrageous. But, reality is there is little to no hope right now. The PTO is rigged with Lee. The Fed. Cir. is stacked with Google judges. The SCOTUS is obeying their corporate masters. The patent judges are death squads.

    Federal District judges may help out. They are the only ones that Google hasn’t gotten to. I think all of this provides a reason to dissolve the Fed. Cir. Now that patents are political, having a FEd. Cir. merely makes things worse as Google buys the judges to burn the system down. Google, by the way, has a very powerful reason to want no patents, which they have said many times. A new innovative search engine could take all their business in months.

  9. cdw October 7, 2014 9:46 am

    So if there is a new motor vehicle law that you don’t like you should argue with the policeman when he flags you down for it’s violation. Or have your attorney argue it for you, and pay your attorney acordingly, because this is the most effective way to deal with a law you don’t like.

  10. Night Writer Patent Attorney (NWPA) October 7, 2014 10:40 am

    @9 CDW: The problem isn’t that there is a new law. Congress did not pass a new law. The SCOTUS made new common law, which a very strong argument can be made is unconstitutional. Congress is to make patent law by the constitution. Not the SCOTUS.

    Moreover, many of the arguments are that the courts are willfully ignorant in science and technology that the factual basis of their arguments is wrong. (So, if a cop pulls me over for speeding and I am not speeding then yes argue.)

  11. Curious October 7, 2014 12:33 pm

    I question how many clients in the software industry area are willing to pay the much higher costs that come with more extensive prosecution and arguments.
    Actually, there won’t be much higher costs when it comes to Alice. A resourceful attorney will develop one good set of arguments based upon the existing case law and apply it. Unlike dealing with prior art, which necessarily involves very different fact patterns for each application, dealing with a 101 rejection should become very routine. The Examiner identifies the alleged “abstract idea” and makes a blanket assertion that the claims do not add substantially more — you then respond. It shouldn’t add that much time.

  12. Robert Plotkin October 7, 2014 1:47 pm

    >> I expected much worse from this article.

    I’m glad to hear it could have been worse. 🙂

    >> I’m not really sure if there is such a thing as a burden of establishing a prima facie case of patent ineligibility”
    >> since I’m not even sure that there is such a thing as a ” prima facie case of patent ineligibility” in the first place.

    See MPEP section 2106 (“Patent Subject Matter Eligibility”), which explains the patent examiner’s burden of proving a prima facie case of patent ineligibility in detail. This section cites to In re Oetiker (Fed. Cir. 1992) for the proposition that “[t]he examiner bears the initial burden… of presenting a prima facie case of unpatentability.”

    I also point you to Irah Donner’s excellent treatise, Patent Prosecution, for an extended treatment of the prima facie case of unpatentability.

    A burden of proof is a very powerful tool in the hands of the party upon whom the burden does *not* fall. In the case of patent prosecution before the USPTO, the burden of proof of the prima facie case of patent ineligibility falls on the patent examiner. That means that the examiner must *first* establish the prima facie case of patent ineligibility before the applicant has to say *anything* about patent eligibility, and that if the examiner fails to establish the prima facie case of patent ineligibility, the applicant wins (or should win) on the issue of patent eligibility, even if the applicant puts forth no arguments or evidence. That is the nature of a burden of proof.

    Whether individual examiners handle the patent eligibility determination in this way is a separate issue.

    Whether individual patent prosecutors leverage the examiner’s burden of proving their prima facie case of patent ineligibility in particular cases is also a separate issue.

    One of my goals in writing this article is to remind prosecutors that they have this tool at their disposal and that they should require examiners to satisfy their burden of proving a prima facie case of patent ineligibility under the two part Alice test, because for a prosecutor to ignore the burden of proof and to act instead as if the burden of proof does not exist and the examiner can just sit back and wait for the applicant to prove patent eligibility is to cede a position of strength unnecessarily.

    >> The one thing I’d take great issue with is that alice is a decision “which expressly reaffirms that not all claims
    >> drawn to abstract ideas are patent ineligible”.

    Part two of the two part Alice test makes clear that even a claim drawn to an abstract idea is patent eligible if the claim is not *merely* drawn to the abstract idea. Therefore, not all claims drawn to abstract ideas are patent ineligible. I elaborate on this more in the second part of the article.

  13. Inside informant October 7, 2014 7:46 pm

    “See MPEP section 2106 (“Patent Subject Matter Eligibility”), which explains the patent examiner’s burden of proving a prima facie case of patent ineligibility in detail”

    Interesting Robert, I will check into that and the treatise if I happen upon it. Based upon the rest of what you had to say however I think you may do well to peruse Jung. He appears to have thought exactly as you did and then you see what happened. It appears further that according to the courts of late it is barely more than a requirement for notice of what the office perceives as shortcomings and enabling the applicant to respond, the existence of a prima facie case does not in fact turn on the merits of the case, it is purely procedural. You can also check out Packard. The applicant cannot so easily “say nothing” so far as it appears in recent cases.

    “Part two of the two part Alice test makes clear that even a claim drawn to an abstract idea is patent eligible if the claim is not *merely* drawn to the abstract idea.”

    Sounds like you’re just using semantics. If it is not “merely” drawn to the abstract idea then it is not “drawn” to the abstract idea at all, which is why it escapes. By using such semantics you’re just making things needlessly confusing and frustrating for people who want desperately to be able to add in the kitchen sink until they have “enough”. The question does not turn on how many thousands of limitations are in the claim, the question turns on the answer to: what is it that the claim is intended to cover or effectively cover, and is that thing judicially excepted subject matter or not. “steps 1 and 2” are merely tools to help people who have trouble finding the answer to that query. If the answer is a yes, there is literally nothing that “step 2” will do, or could ever do, to help you.

  14. Robert Plotkin October 7, 2014 10:13 pm

    In the Jung case that you mention, the PTAB concluded that the claims were directed to a “fundamental economic practice,” namely, calculating risk. This tells us nothing about the patent eligibility of claims that are not directed to fundamental economic practices.

    As for “drawn” to an abstract idea vs. “merely drawn” to an abstract idea, I am just paraphrasing what the Alice Court said, which admittedly is not as clear as it could be, but previous decisions have framed requirements in similar ways, and there is no inconsistency in saying that a claim is drawn to an abstract idea but not merely drawn to the abstract idea. If a claim is drawn to A+B, where A is an abstract idea and B is something significantly more than the abstract idea, then the claim is both drawn to the abstract idea (namely, A) and not merely drawn to the abstract idea (because the claim is additionally drawn to B). This is analogous to saying that I went to the store to buy milk but not merely to buy milk, because I also went to buy eggs. The phrase “drawn to” certainly is not the best choice of words (the Supreme Court’s, not mine), but I think the intent is relatively clear and consistent with what I said in the article.

    As for the assertion that step 2 of the Alice test could never save a claim from being held patent ineligible, that is contradicted by the Alice Court’s own analysis of the claims in Diehr. I think the section on Diehr, despite its flaws, contains some of the opinion’s most powerful support for arguments in favor of patent eligibility of computer-related claims going forward.

  15. NWPA (Night Writer Patent Attorney) October 8, 2014 7:09 am

    To some extent I echo @13 Insider in that I think the only useful articles are going to be ones that actually tell me what to put in a patent application. To my mind the trick is to keep in mind all the various things the software actually does. There was an article a few years ago in the ABA journal that explained how to convert a US application to a EPO application. I think that is probably highly relevant now.

    My guess is that we are going to become like the EPO with rather than logic and principles being the guide posts we are going to have to adhere to specific cases and come close to them. I think your article probably misses this point. Probably because it is rather abhorrent to US practitioners to lose their principles.

  16. NWPA (Night Writer Patent Attorney) October 8, 2014 11:20 am

    What do people think of circuitry configured to: then the functional elements of the software? Put in the spec support, or course.

    Reality: that is what a computer and software are.

  17. NWPA (Night Writer Patent Attorney) October 9, 2014 12:14 pm

    “If you take seriously what Alice says and some of the cases interpreting Alice, like Buysafe, say, it doesn’t matter about the hardware technology I implement as long as it’s just doing normal computer tasks – and if we treat the software as always an abstract idea, there’s not much left for patentability.” Lemley, iAM magazine.

    So, Lemley is trying to push for all software is abstract.

  18. Joker October 9, 2014 12:16 pm

    I have recently started including in response a check made out to the examiner, with amount of the check left blank for him or her to fill in at his or her discretion. . . . . . ..

    Waiting for results. . . . . . ..

  19. t October 9, 2014 1:08 pm

    Joker – that’s your problem. They only take cash.

  20. step back October 10, 2014 6:22 am

    OMG Gene,

    TechRights is accusing you of being “pro-software patents”:

    http://techrights.org/2014/10/08/trolls-and-innovation-alliance/

  21. Anon October 10, 2014 8:30 am

    step back,

    The same author as http://linuxidiots.blogspot.com/2007/09/roy-schestowitz-liar.html …?

  22. Curious October 10, 2014 10:35 am

    The same author
    I just perused some of his writings. He writes a lot but says little except ‘patents are bad’ and ‘lawyers are evil.’ He attacks this particular article yet never clearly explains why Gene’s comments were inaccurate.

    After doing a little more digging, it appears that the author has had his veracity questioned on more than one instance. He describes himself as “an advocate of fair competition” and has a company that provides “[c]ustom-made free/Open Source software and migrations.” It seems to me that “fair competition” to him is just another way of saying that he wants to rip off other people’s software without paying for it.

    As always, the patent wars all come down to economic self-interest (not some philosophical debate as posited by some). There is a tension between those that own the technology (e.g., with patents), and those that want to use the technology (without paying for it).

  23. Gene Quinn October 10, 2014 10:54 am

    joker-

    I don’t know whether to laugh or to cry. It certainly seems that the big boys aren’t having the same type of Alice problems that many of the independent inventors, small businesses and start-ups are having. Very curious indeed.

    -Gene

  24. step back October 10, 2014 12:25 pm

    Gene,

    You seem to have missed the gist of Alice v. CLS BANK.
    Alice was a small patent holder (a David with just one pebble in the sling shot).
    CLS is a too big to fail or infringe Goliath Bank.

    The Supremes know who butters their biscuits.
    Simple as that.

  25. Gene Quinn October 10, 2014 2:00 pm

    step back-

    OMG! I love it! You may be reading that again in the future… “too big to infringe…” That seems to really sum it up, doesn’t it? So too would — “too big for the USPTO to deny a patent…” and “too big for your patents to be patent ineligible…”

    -Gene

  26. Curious October 10, 2014 11:59 pm

    CLS is a too big to fail or infringe Goliath Bank.
    I will remember that line … I will pass it along to my litigation attorney.

  27. NWPA (Night Writer Patent Attorney) October 11, 2014 8:14 am

    Too big to infringe. That is great!!