Patent infringer lobby pushes Trump Transition Team to aggressively pursue patent reform

By Gene Quinn
December 5, 2016

President Elect Donald Trump.

President Elect Donald Trump.

Several weeks ago Internet Association President Michael Beckerman sent a letter to President Elect Donald Trump and the Trump Transition Team. The Internet Association is made up of companies that are by and large openly hostile to the U.S. patent system and innovators. The letter touched upon issues ranging from copyright safe harbors under the Digital Millennium Copyright Act (DMCA) to recommended reforms to the Electronic Communications Privacy Act (ECPA) to open access to the Internet and, of course, patent reform. I will confine my comments (see below) to the Internet Association’s patent reform commentary.

With this in mind I thought the best way to provide my thoughts and comments would be in the format of comments from the peanut gallery, or perhaps as a patent law equivalent to Mystery Science Theater 3000, which I do from time to time.  In order to differentiate my thoughts/comments from comments of the Internet Association, my comments are italicized, colored, indented and tagged with the IPWatchdog logo.

_______

IA LETTER: Patent law remains an area of intense litigation and uncertainty due to entities often referred to as patent trolls, which cost our economy tens of billions of dollars per year. These entities incite high-cost, baseless litigation, which diverts resources from productive business research and development.

MY TAKE: Not that it should come as any surprise to anyone who follows the patent reform debate, but what the Internet Association says here is simply false. First, just recently the Federal Trade Commission released its much anticipated report on Patent Assertion Entities and concluded: “In the Commission’s view, a label like ‘patent troll’ is unhelpful because it invites pre-judgment about the societal impact of patent assertion activity without an understand of the underlying business model that fuels such activity.” Second, it is a complete lie that patent owners cost the economy tens of billions of dollars per year. This figure has been thoroughly and completely debunked, yet the infringer lobby that prides itself on efficient infringement (i.e., stealing rights without paying for them) continues to use figures that even the authors of the original study no longer support. In a nutshell, the way the “billions of dollars” estimate is erroneously arrived as it by conflating “costs” with “transfers.” The acquisition of rights through a license is not an economic cost as if it were a zero sum game, and neither is the payment of damages for having chosen to trample the rights of the property owner in the first place. If the Internet Association is reduced to relying on name-calling (which even the FTC says is unhelpful) and bogus statistics without any economic justification, obviously their case for reform is very weak — which it is.

 

IA LETTER: Opportunistic patent trolls have exploited the lack of reasonable venue law to shop for favorable forums and force defendants, including small and independent inventors, to litigate in distant venues unrelated to the case in question. This is especially true in the Eastern District of Texas… Local rules disadvantaging defendants, disproportionate win rates, unreasonable damage awards, and expansive, inequitable discovery practices attract trolls to East Texas.

MY TAKE: Again, name-calling using the term “patent trolls” does nothing other than show the Internet Association is out of touch with current understanding of the nuances of the patent marketplace. If the FTC study commissioned to trash patent trolls refuses to do so that should be a sign to everyone that the patent troll narrative is fiction, which is it. Furthermore, the infringer lobby would love nothing more than to end patent litigation in the Eastern District of Texas. It has nothing to do with the fact that damage awards are unreasonably high, because the truth is the Eastern District of Texas has not for a very long time been the pro-patent venue that the infringers have made it out to be. Yes, verdicts can be quite high, but those large verdicts are very few and far between. In many cases the patent owners win nothing, and in many other cases the patent owners win little. Patent Owners who swing for the fences, for big verdicts or bust, like the Eastern District of Texas. Defendants don’t like the Eastern District of Texas because the local rules and practice in the court actually give patent owners a fair procedural chance. It is very difficult, if not practically impossible, for infringers to win in the Eastern District on motion before trial. So patent owners actually get their day in court the way it is supposed to be and infringers in the Internet Association don’t like that. They would prefer that the Eastern District become inhospitable to patent owners like so many other federal districts across the country. 

 

IA LETTER: Necessary reforms include… clarifying in statute the standard for fee shifting in extraordinary cases, which will ensure that trolls who bring meritless cases cannot shield themselves entirely from responsibility.

IA LETTER: [R]ecent cases including Enfish, LLC v. Microsoft Corp. and McRo v. Bandai Namco Games have provided clarification on patentable software. Calls to weaken the Alice decision or Section 101 are misguided and unnecessary as the courts clarify software patentability.

MY TAKE: It is important to tackle these two thoughts together because it shows the hypocritical convenience with which the Internet Association operates. With respect to fee shifting they want clarifying legislation because it is not enough for the courts to clarify the law as the law evolves. In the next breath, however, they have the audacity to say that no clarifying legislation is required with respect to patent eligibility because the courts are starting to provide clarity. To call this intellectually dishonest doesn’t begin to scratch the surface. 

They want clarifying legislation with respect to fee shifting because their members are infringers who engage in efficient infringement, which is a business calculation that winds up with them intentionally and consciously deciding to infringe patents rather than take a license. So their members will be open to fee shifting given their efficient infringement business model, so they want legislative relief to protect them from their decision to steal. On the other hand, where innovators want clarity on patent eligibility and a clear statement from Congress that software is patent eligible, which is something the Supreme Court has refused to say, the Internet Association says no legislation is needed. Apparently they like the murky mess and the fact that innovators have no certainty.

Make no mistake, murky mess is exactly what the law of software patent eligibility is today. Yes, in recent months there have been strides forward — finally — but the Federal Circuit has acknowledged that the test created by the Supreme Court is subjective and not reproducible. In Enfish, one of the cases cited by the Internet Association, the Federal Circuit explained that the law has developed into a matching endeavor. You determine which case the instant claims are most like and then based on whether that case resulted in patent eligible claims or patent ineligible claims you work backward with the analysis. Furthermore, the Federal Circuit also said in Enfish that they do not have to labor to define the critical term — “abstract idea” — because the Supreme Court said they did not have to labor to define the term in Alice. Thus, courts and patent examiners are left to apply the abstract idea doctrine without any definition of what is and what is not an abstract idea. This ridiculously uncertain test, which seems the best the Supreme Court and Federal Circuit can do, de facto demonstrates there is a serious problem that demands legislative clarity. 

To put it simply, the fact that there have been improvements in recent months does not mean the situation is good. Innovators deserve better than a “we know it when we see it” subjective standard. Given the ubiquity of software and the prevalence of software related innovation the U.S. economy demands certainty.

 

IA LETTER: The USPTO must continue to identify and implement changes it outlined in its Enhanced Patent Quality Initiative…

MY TAKE: The USPTO patent quality initiative has until this point been code for “patent applicants and patent practitioners are to blame for the problems of the Patent Office and the patent system.” To some extent the quality initiative has also felt like it has been an effort to encourage the quicker rejection of patent applications. The Office will tell you otherwise, but the Office also steadfastly refuses to acknowledge that there are an unacceptably high number of patent examiners who are simply refusing to do their jobs. We have seen instances were examiners submit hundreds of hours of fraudulent time sheets, we have seen the Commerce Department Inspector General discuss widespread examiner abuses, we know that examiners in Technology Center 3600 tell patent practitioners that they haven’t allowed an application since Alice and they are not about to start now no matter what amendments are offered or arguments made. See Where Patent Applications Go to DieIn short, the USPTO has a well documented problem with certain recalcitrant patent examiners and they are either unwilling or incapable of doing anything about it. The Office should suspend the quality initiative until such time as the political will exists to do something about examiners who are gaming the system and/or who are poorly doing their jobs. See Steps to Address Low Quality Examination.

 

IA LETTER: Misguided efforts to weaken access to redress options such as IPR at a time when low-quality patents continue to fuel patent trolls will harm our innovation economy and inflame the very problems that policymakers sought to mitigate through modernizations of the U.S. patent system.

MY TAKE: Again with the name calling, which should immediately tell the reader something about the strength of the argument being made by the Internet Association. Second, claims of widespread and run-away patent litigation are unfounded. In fact, there is a downward trend in patent litigation. As for weakening IPRs, post grant proceedings were ill conceived to begin with and never should have been adopted. Post grant administrative trials put the Patent Office in the position of arms dealer. Innovators spend many tens of thousands of dollars and the better part of a decade getting a patent and if it turns out to be commercially viable the Patent Office no longer stands behind the patent and instead sells the right to challenge the patent, which causes the patent owner to now have to spend many hundreds of thousands of dollars (or more) to defend the patent. And as bad an idea as IPRs are, no one is seriously talking about doing away with them, just making them procedurally fair — like actually affording the patent owner due process, following the statute and giving the patent owner the right to amend claims, and acknowledging that there is a problem when there is a financial incentive for judges to institute IPRs when multiple challenges are filed against the same patent. By and through their decisions and actions the PTAB has destroyed the value of patents in America. Substantial regulatory reform of the PTAB and IPR and CBM practice is required.

 

IA LETTER: Developing a competitive U.S. tax regime for intellectual property (IP) will encourage companies to onshore IP that is currently held outside the US, helping attract more jobs and encourage domestic innovation. An “IP box” or “innovation box” would provide a globally competitive tax rate on profits derived from intellectual property, expanding the corporate tax base.

MY TAKE: This is actually a brilliant idea. As Bernard Knight wrote: “Many countries have enacted a patent box regime in order to spur innovation and create domestic manufacturing jobs.   Simply stated, a patent box regime provides a lower tax rate on income from the exploitation of patented goods than for other income… A patent box regime can incentivize both domestic and foreign manufacturers to set up manufacturing in a country to take advantage of a lower tax rate on profits derived from intellectual property.”  This should be a no-brainer. Given the tremendous potential benefit to all patent owners the Internet Association would be smart to support this as a stand alone piece of legislation rather than hold this single good idea hostage to all the other truly awful ideas it has recommended.

 

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

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 67 Comments comments. Join the discussion.

  1. IPdude December 5, 2016 11:09 am

    Gene – don’t you think the addition of Ginni Rometty to the Trump advisory team bodes well for patent owners?

  2. John White December 5, 2016 11:37 am

    Wow – if there were a “prize” for buzz-word patent mis-speak, the letter from IA would certainly win. This is exactly the mis-information and bullying moneyed tactic that impressed and overwhelmed the current admin as to what was good for the patent system. Their letter is like a Fox advising a chicken-coup company on chicken safety.
    Trump admin – ignore these people and their well funded lobby!

  3. JPM December 5, 2016 11:43 am

    All inventors, patent owners, attorneys, IP brokers and anyone who advocates for a strong patent system should get together and write a letter to the Trump administration to expose what a scam the AIA and the PTAB are. The AIA should be repealed and the PTAB should be shutdown.

  4. Edward Heller December 5, 2016 3:18 pm

    ” redress options such as IPR”

    As IF accused infringers did not have the right to file a DJ action in court where due process was accorded to both parties, as opposed to only one?

  5. Edward Heller December 5, 2016 3:24 pm

    From what I see of the legislation, the big companies are trying to rig the system so that they always litigate in their home district.

    My recommendation remains: file all patent suits in one court, and have a court panel move the litigation to the most convenient forum considering both docket load and convenience of the parties. The modern US is a Nation where almost any district court is suitable for conducting a patent trial, which typically is a battle of paid experts. We simply need to get forum shopping completely out of the mix.

  6. Night Writer December 5, 2016 4:20 pm

    The whole point of the jurisdictional “reform” is for the big corporations to be able to pick their judges. Again–the problem with Alice and some other patent law is that it has turned into equity. They cannot get E.D. Texas to follow what they want because their is no law to implement just equity.

    Good job on this article. Pretty scary. I think the IA should be cast as part of the swamp to drain. Google has been pouring money into Obama’s favorite candidates for years in return for judicial appointments and the appointment of the PTO director. Let’s just hope that Trump looks at the fact that Google is number two to Goldman Sachs for lobbying Congress and the President.

  7. Night Writer December 5, 2016 4:27 pm

    You know too, that the fact that academics are not punished for misrepresenting patent law for their judicial activist purposes is a big reason that the anti-patent group has so much power. If people like Lemely, were held to account, the anti-patent movement would die on the vine.

  8. Edward Heller December 5, 2016 5:10 pm

    Night, the big boys (and their big firms) don’t like the ED of Tex because they like to Law and Motion a case to death, maximizing billings and wearing out patent owner in the process. They do not want cases to go to trial. Heaven forbid.

    Justice to the wealthy is the use of wealth to tip the scales.

  9. Edward Heller December 5, 2016 5:20 pm

    Somehow, we need to adjust the patent system to favor US R&D and US manufacturing. Trump would like this.

    Idea: Provide a grace period for US inventors only.

    Idea: Guarantee injunctions to protect US manufacturing.

    Idea: Guarantee an injunction against products made outside the US for inventions made in the US or that protect US manufacturing.

    Idea: Lower the cost of the US patent system for the inventor and the startup. Prevent post-grant reviews and reexaminations with respect to any patent holder or their privies who make the invention in this country or who manufacture in this country, and who are otherwise small entities.

  10. Night Writer December 5, 2016 6:55 pm

    @8: Edward the big boys want to be able to pick their judges. The driver of this reform is not the big firm of which I used to be a member of and did patent litigation, but rather Google and the like.

  11. angry dude December 5, 2016 7:10 pm

    Too many words…

    There are only two ways to go forward:

    1) abolish US Patent system

    OR

    2) make patent rights meaningful for all patent holders, large and small (and that’s what US Constitution means)

    either way is fine with me – any outcome but the current status quo

  12. Independent Inventor December 5, 2016 7:31 pm

    Gene — if you would like to draw up your own letter to Mr. Trump, I would gladly sign it. I believe that many others would as well.

    We all need to stand up for what is right. Right now.

    American inventors, startups, universities — and indeed our entire country as a whole — need all the support we can muster.

  13. Edward Heller December 5, 2016 7:53 pm

    Well Dude, Trump is interested in American jobs, not patents in the abstract. If we are going to get his support, we need to tailor our message.

  14. angry dude December 5, 2016 8:09 pm

    Edward Heller @13

    Patents are not “in the abstract”, they are in US Constitution, sort of

    job creation is a different although not totally unrelated subject (depends on tons of other issues other than patents)

  15. Edward Heller December 5, 2016 8:27 pm

    Well, Dude, once again, the original purpose for the US patent system was to promote invention in the United States, not in England or in China or in Germany or in India. By gutting all benefits to American invention in the AIA, by doing the same with the ITC when American R&D was not deemed to be an American industry, and by not reliably protecting both American R&D and American manufacturing with injunction, our patent system no longer promotes invention in THIS Country.

    The globalists have had their sway for a long time now. The playing field to them is the world. R&D and manufacturing are is anywhere. Patents protect markets.

    But such a patent system does not promote invention in this country and for that reason is contrary to the intent of the founders.

    Trump has smelled a rat as to how anti-American these globalists really are. Trump can see what they have done to the American patent system if we point it out to him.

    But instead, the apostles of the international elites continue to spread their false doctrine, braying endlessly about about trolls and this or that, even while they steal us blind, rob us of our R&D and of our manufacturing jobs.

    We need to truly rethink all the give-aways to the international elites we have made since the mid ’90s, and begin to re-engineer the US patent system to fulfill the Constitutional injunction to advance the useful arts in this country.

  16. Gene Quinn December 5, 2016 8:31 pm

    Independent Inventor… and everyone…

    I’m contemplating an article on what “real” patent reform would and should look like. Suggestions?

    -Gene

  17. angry dude December 5, 2016 9:18 pm

    Edward Heller @15

    Patent system was established to promote technical progress in the US,
    thus – creating high-paying skilled and creative jobs, not just any jobs

    Talking about “job creation” in general is pointless

    But we all agree that R&D expenses incurred in US by US-based companies employing US engineers and scientists must be protected from foreign copy-cats by strong patents

    I think no one in the Trump administration will argue with that

  18. Anon December 6, 2016 2:04 am

    Mr. Quinn: one focus should be on what the Office controls: the quality of examination.

  19. Independent Inventor December 6, 2016 11:51 am

    Gene — a couple of quick thoughts for an article (and a letter to Trump, too? Maybe copy of the article to him … with our signatures?):

    Abolition of 101.

    Abolition of AIA trials.

    Removal of all patent cases from SCOTUS. They’re not qualified to make such decisions.

    25 – 33% increase in allowed Examiner examination time; including in order to account for the increased (and increasing) demands on their time. Even though it would be tough to do, I’m willing to pay more to give our Examiners the time they need. And relatedly; more time to examine inventions with over 30 claims. The higher amounts we pay for these claims should be passed through to the Exmainers. Like they’re supposed to be.

  20. Independent Inventor December 6, 2016 11:54 am

    … and abolition of the eBay decision.

    And KSR.

  21. Edward Heller December 6, 2016 1:09 pm

    Dude, but whether R&D or Manufacturing is conducted in the US requires more than just strong patents, it requires benefits to the US patent holder for patents flowing from only US R&D and remedies that are stronger when protecting US manufacturing.

    Under first to invent and prior to the “reforms” of the ’90s, the US inventor alone had priority to his US invention. Killing first to file and the exclusive benefits to US inventors was a bad move from the point of views of US R&D.

    Killing US patents over foreign prior art that is secret (patent applications) or foreign public use is also completely wrong and completely unnecessary and counterproductive to US R&D.

    We need to reverse the trend, and to get back to protecting American R&D and manufacturing. Simply calling for strong patents is not enough, not by a long shot.

  22. Edward Heller December 6, 2016 4:32 pm

    Gene, any reform ideas should start with the observation that the purpose for the US patent system is to advance American innovation and American manufacturing. Initially, Congress limited patents to American citizens, which is consistent with the constitutional purpose.

    Thus the reforms need to be framed in the need to advance US R&D and US manufacturing. The playing field should not be level, but should tilt.

    1. We need to restore a solid 1 year grace period for US inventors because the grace period was always intended to benefit US inventors. Thus, if the invention is made in the US, the applicant gets a 1 year grace period against all prior art. There should be no need to prove priority. Where there are rival inventors seeking to patent the same invention, the first to file should prevail.

    2. We need to clarify that US R&D is an American industry. That industry should be protected from imports in the ITC so that the US patent holder may extract a substantial royalty from infringers. As well, eBay should be overturned to the extent that US manufacturing is protected by a patent, whether the asserting party is the manufacturer or not. The patent owner needs to protect his licensees with injunctions.

    3. We need to reduce costs of the US patent system to the US independent inventor, the startup, the university. Until they reach a size where they can afford post-grant procedures of any kind, their consent must be required before they be forced into a PGR or reexamination. The exception should be is where the patent owner actually files suit.

    4. We need to limit public use prior art to US only.

    5. We need to eliminate patents and published application being prior art as of their filing dates, or limit that effect to applications filed in the United States that are based on US inventions — which should be indicated on the face of the patent or application.

    6. We need to consider restoring the guarantee of 17 years of exclusivity. All prosecution beyond 3 years should be added to term, subtracting out delays by the applicant. In addition, the period any patent is in involuntary reexamination or PGR should be restored. Patents are not practically enforceable while undergoing reexamination, etc.

    7. We need to revise 251 so that changes to claims in reissues and reexaminations etc. do not result in lost damages. The test should allow for past damages where a claim is narrowed and where the claim was infringed both before and after the narrowing. This is how it works outside the US. A major reason reexaminations for infringers are so popular is this “feature.”

    8. BRI should not be used in reexaminations or other PGRs.

    9. The standard of proof for the examiner or the petitioner in reexaminations and PGRs with respect to existing claims should be clear and convincing. This mainly means that reasonable doubts must be resolved in favor of the patent owner.

    10. Only a court of law should order an IPR. That same court should provide de novo review of the decision of the PTAB. Special court rules need to be added so that the only issues the court will consider are related to institution. Venue should be proper only where the patent owner resides. The requirement that a court be involves assures that the petitioner has Article III standing.

    11. In IPRs, narrowing amendments should be routinely allowed unless the petitioner proves them unpatentable.

  23. angry dude December 6, 2016 6:13 pm

    Edward Heller @21

    actually I think most independent inventors don’t have much of a problem with first to file – makes things simpler (provisionals are available)

    but assigning any meaning to foreign unpublished patent applications is idiotic to put it mildly – in some countries you can put any stamp and any date on any official piece of paper for enough $$$

    personally I have very little hope that the current mess can be fixed in the near future

  24. Mike Archbold December 6, 2016 6:51 pm

    Gene, as far as the open letter, try to define what does and does not constitute an “abstract idea,” and if you reject this label altogether (it is a poor choice but I see what they mean anyway) what a suitable descriptor would be.

  25. Curious December 6, 2016 9:41 pm

    Abolishing 101 will not help. This is an issue we’ve discussed before. Without 101, the Courts will still be free to do whatever they want. 101 needs to be rewritten to keep the Courts from monkeying around with the language. The enunciated statutory classes should be “without exception.” Additionally, 101 is not a condition for patentability and should not be explicitly excluded as a defense. This simply returns 35 USC 101 to how it should have been construed back in 1951.

    Second (… sorry Anon …) making the Federal Circuit the law of the land when it comes to patent issues (i.e., removing the Supreme Court from review) isn’t going to help either — the Federal Circuit is just as complicit (and probably more so) than SCOTUS in mucking up the patent system. Perhaps a better approach would be (i) create a specialized Federal Court system — separate from the current system — that handles patent issues (it will have its own rules, and consequently, there will be no need to venue shop), (ii) create a new Federal Circuit that reviews only those cases (the other types of cases reviewed by the Federal Circuit can be moved to another specialized appeal court) and make being either a registered patent attorney or someone with extensive patent experience, before becoming a judge, eligible to sit on the court (and make those requirements retroactive to the new Federal Circuit). We shouldn’t have technical neophytes passing on issues where a solid understanding of technology is necessary to evaluate the facts and render a proper decision on the law.

    Abolish the AIA or IPRs. If not, IPRs can be rewritten to:
    (i) establish that the burden is preponderance of the evidence — patents, once issued, have a presumption of validity. Once issued, a patent has to mean something.
    (ii) if you challenge a patent via an IPR, you will be estopped from challenging that patent (based upon prior art including art not cited) in a patent litigation (or another IPR) involving the same patent — we shouldn’t be giving infringers unlimited bites at the apple to wear down a patent holder
    (iii) permit, as a matter of right, Appellant to amend the claims. If Appellant amends, then they are not entitled to past damages.
    (iv) have the challenger post an $X00,000 bond to pay for patentee’s legal costs should the patentee prevail. Right now, there are no real negative consequences to losing an IPR by the challenger.

    No more fee diversion from the USPTO — period. Applicants currently pay fees for services that are not provided because their fees are being siphoned off by Congress for other purposes.

    a minor wish: patent publications should be prior art as of the date of their publishing — not filing. What is obvious to one of ordinary skill in the art at the time of the invention can only be based upon what is actually published at the time of the invention — not secret art.

    I’m sure I could probably think of more, but that is a start …

  26. Ternary December 6, 2016 10:25 pm

    Edward Heller, very good points. I would add:

    101 needs to be revised, make software patentable, get rid of Alice. Anything a machine can do is patent eligible. Rely on 112, 102 and 103 for examination.

    review 103 standard, especially “common sense” interpretation which makes the whole process arbitrary. give greater weight to “objective evidence” such as affidavits. Clean up the KSR mess. Reinstate Teaching Suggestion and Motivation standard or something like it that at least provides some objective standard.

    And yes, re-instate the full 1 year grace period. And not only on a published disclosure, but also on the discussion that an inventor has with friends/investors on the brilliant invention he/she has made.

  27. Night Writer December 7, 2016 6:45 am

    @25: Curious: I agree about the CAFC. The problem is that with the special purpose court the lobbyist can target people for the issue of being anti-patent.

    Obama’s appointments have almost all been targeted for anti-patent judicial activists. It is a bit more complicated than that, but they were not appointed for their competence in science and patent law.

  28. Anon December 7, 2016 12:41 pm

    Curious,

    No need to apologize – my calls for Congress to employ their constitutional power of jurisdiction stripping are accompanied by a setting of a new body of Article III judges to be made. I am well aware that the current Congress-created body with the mandate of bringing clarity to patent law has been hopelessly brow beaten by the Supreme Court, and could never fulfill a new mandate (let alone their own prior mandate – see the mess of what happened in the Alice case for confirmation of that).

  29. Night Writer December 7, 2016 12:45 pm

    @26:Ternary: Edward has a short when it comes to 101. He apparently gets his business from the anti-patent judicial activist Stern and has to toe the line on the anti-information processing rhetoric.

    Ask Edward to tell you the one about the ROM. Great for a migraine and some good laughs. Edward—I am afraid–is not a friend of patent law.

  30. Ternary December 7, 2016 10:36 pm

    On April 27, 2016 7:19 am Edward Heller wrote: A computer transformed by “firmware” or the equivalent is a new machine. But I do not agree that simply executing novel math on a computer generates a new computer.

    A program executed by a processor establishes a machine. No matter if it uses “novel math” or “old math” or if it does any other form of information processing. It is the fundamental nature of a computer program. If a program establishes a “new” machine is a matter for 102/103. But not 101.

    Clearly, in 1935, the USPTO was not too concerned about math or “abstract idea” when it issued patent 1,989,545 to Wilhelm Cauer. Man, look at those claims. And the spec. It reminds me of my classes in filter theory, what a headache. One can make a case that the 4-terminal devices of Cauer implement in a way the claimed formulas. Wilhelm, please meet Alice.

    The USPTO issued yesterday S/N 9,515,830 which claims Exclusive OR and AND operations as part of a “A universal hash function computing device”. All math, operated on prime numbers. Absolutely patent eligible in my book. Or take 9,485,087, which basically claims modulo-r machine mathematics. The claims here where first rejected under Alice, but later allowed. Fine with me. Crypto machines are useful. Math machines are useful. Information processing machines are useful. And should all be patent eligible when performing a useful task. Some sanity still exists at the PTO, I am happy to say. Though the Courts and/or PTAB may still kill the patents.

    I still like the points that Mr. Helller made above. The lack of a 101 paragraph was somewhat striking. So I made that one. Now I am of course curious about the ROM.

  31. Edward Heller December 8, 2016 5:26 pm

    Ternary, I have no dispute with patenting circuits where the novelty is claimed is new math, because circuits have “electrical” signal inputs and signal outputs, and the circuit transforms these signals into a new state. I also agree that the utility of a computer is enhanced by software, such as database programs, operating systems and the like. Communications between machines and computers can be claimed in terms of mathematical improvements. I also recognize that the software improvements are central to improving most modern machines. All of this should be patentable subject matter. I also believe the courts are on board with this. Bilski and Alice do not represent a primal threat to these kind of software-based inventions.

    What I do think though is that the business methods as claimed in Bilski are not patentable subject matter and the simple recitation of the use of a computer in the method is not enough to transform the claimed subject matter into a patentable invention. But, as a corollary, simply because the claim includes a business method does not exclude it from containing patentable subject matter where the claimed subject matter also include specific software processing improvements such as the case in Versata where the claims were directed to specific software processing methods for improving the speed of price quotations.

    I think the subject matter is nuanced, and cannot be or should be be addressed simply by allowing all claims that recite the use of computers in their methods.

    I hope this helps you understand why I do not support the ongoing effort to undo Bilski or Alice because the people behind this effort I believe truly want to patent business methods and not improvements to machines or machine methods. If any reform were to specifically ban the patenting of business methods and mathematics, you would see the effort to “fix” 101 die.

  32. Anon December 8, 2016 10:05 pm

    There is zero credibility in a statement like: “Bilski and Alice do not represent a primal threat to these kind of software-based inventions.

    Sorry Mr. Heller, but you show that you do not understand what the Justices have been up to with a comment like that.

    A hint: in Alice, claims stipulated by BOTH sides to pass the Congress stated statutory category of machines were nonetheless made to be “abstract.”

    Nothing like an exception swallowing the rule.

    As to allowing claims to methods but not to other statutory categories, you speak without any tie to law. As has been often provided to you, a method may very well be software in execution, but software itself is a manufacture and a machine component.

    Pretending otherwise helps no one.

  33. Night Writer December 9, 2016 10:05 am

    @32: Anon. Ned’s position is just illogical. We’ve been through it. It does not hold water. He jabbers well and throws up lots of smoke, but at the end of the day it is witch law. Edward is saying that your invention is like the witch model he has in his head so it is not eligible.

  34. Night Writer December 9, 2016 11:46 am

    It makes me wonder about Ned. He completely destroys any credibility he has because of his 101 positions. They are not a matter of a difference of opinion, but an adoption of anti-patent judicial activist positions that are based on intentionally misrepresenting science and law. Ned’s positions on 101 are unethical.

    As far as functional claiming too, any patent attorney (or attorney) that does not acknowledge that functional language has always been used in patent claims and that functional language is used to express solutions know to or that can be derived by PHOSITA is unethical. There is no way around this. If you take these positions, you should be disbarred. Lemley is front and center.

  35. Edward Heller December 9, 2016 1:25 pm

    Night, the underlying principle is that business method and math inventions are non statutory. However, the means for implementing business methods may be. Ditto, the application of math to machines and processes.

    Thus, in Versata, the claimed invention was not to a new business method, but to improvements in software that sped up the calculation.

  36. jbavis December 9, 2016 2:51 pm

    Washington lobbying is much worse and deeper than previously reported. See this article: http://precursorblog.com/?q=content/how-google-anti-employment-anti-property-pro-regulation

    —–
    I. Google’s Unprecedented Lobbying Influence

    Current Alphabet-Google Chairman Eric Schmidt enjoys the privilege of being the only corporate leader of a publicly-traded company on the President’s nineteen member Council of Advisors on Science and Technology.

    Coincidentally, former senior Google executive from 2003-2014, Megan Smith, is the U.S. Chief Technology Officer, responsible for all tech policymaking in the Executive Branch.

    Coincidentally, Former Google Deputy General Counsel for intellectual property from 2003-2009, Alexander Macgillvray, is the Deputy U.S. Chief Technology Officer for intellectual property & privacy policy.

    Coincidentally, former Google Senior Engineer from 2006-2013, Mikey Dickerson, is Deputy U.S. Chief Information Officer and Administrator of the U.S. Digital Service, a new organization and position.

    Renata Hesse, Google’s former outside antitrust defense counsel, is coincidentally now Acting U.S. Assistant Attorney General for Antitrust, who coincidentally is the lead liaison with EU antitrust authorities concerning the EU’s three pending monopolization cases against Google.

    Former Google Deputy General Counsel and head of patents and patent strategy from 2003-2012, Michelle Lee, is coincidentally now Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent & Trademark Office, who coincidentally joined the USPTO just when Google faced several new serious patent lawsuits.

    And coincidentally yet again, the U.S. Register of Copyright, Maria Pallante, just got fired coincidentally after she disagreed with Renata Hesse and Google’s position on a music copyright consent decree and with the FCC-Google position that FCC authority should supersede copyright in the FCC’s Set-Top Box rulemaking.

    Coincidentally, Google employees visited the Obama White House 427 times per White House Logs including 128 visits coincidentally by Google’s lobbyist Joanna Shelton alone, many more times than any other special interest.

    And a final coincidence, Google also has generated the most “revolving door” moves of any company with this Administration with 251 Google employees either entering the government or government employees joining Google, according to the Google Transparency Project.
    —–

    Also, there is one other section that readers of this site might relate to: III. How Google Is Anti-Property (for others)

  37. Edward Heller December 9, 2016 3:44 pm

    jbdavis@36, drain the swamp.

  38. Night Writer December 9, 2016 3:50 pm

    @36: wow! Everyone should understand too how this benefits Google, because that is what it is all about.

    @35 Ned: Seriously? No distinction between applied and theoretical math? No definition of a business method? The SCOTUS recently saying that they did not hold that business methods are ineligible.

    So, what you’ve done is make up two abstractions in your head “math” and “business method” and said that anything that is one of those (witches) is ineligible. And, then you make up the tests and what is that “math” and what is that “business method” that make some inventions witches and some not according to your whims. Really shameful reasoning.

  39. Night Writer December 9, 2016 3:55 pm

    Let’s face it Edward, you’re position is untenable in the modern era. I can describe any invention in mathematical terms. That doesn’t make it “math” whatever that is. Anyway, it is endless with you. You have witches in your head and psychotically project them on what you don’t like.

    But, then you won’t address any substance of what I’ve just written. E.g., applied math, information processing is according to you ineligible why? A physical process to represent and process information. Most important law of physics being the conservation of information. Machines.

    But, what you do is say, no it is none of that but some “math” that exists in the spirit world that you are trying to capture. Medieval thoughts rule your limited capacity.

  40. Edward Heller December 9, 2016 4:00 pm

    Night, do we have to define business method, or just proceed by example? We have the data-points of Bilski and Alice.

    Now, some might say that we have the data-point of Versata. Since I think that case was wrongly decided, think we need to get the Feds to recognize they made a mistake in that case.

  41. Night Writer December 9, 2016 4:04 pm

    OK Ned. Don’t bother with my other substantive points. I addressed each of yours. But, then I am honest broker who cares about patent law and science. We know you are not that.

    And, Alice does not say business methods are ineligible. The grounds for invalidating the claims was because they were abstract. So, we have you off misrepresenting again.

  42. Night Writer December 9, 2016 4:09 pm

    jbdavis@36 : we should all watch Lee. Let’s see if Google pays her $20 million for her service to Google as director of the PTO. My guess is yes.

    Ned you are just sorry misrepresenting witch hunting anti-patent judicial activist medieval thinking slug.

  43. Edward Heller December 9, 2016 5:37 pm

    and Night, to be sure neither Bilski nor Alice said that business method claims were ineligible. It is just that the claims before it were what everyone identified as prototypical business claims, and they were held ineligible. So when I say “business claims,” I mean claims like those in Bilski and Alice that were held ineligible.

  44. Edward Heller December 9, 2016 5:38 pm

    Night, @42, glad to be of service.

  45. Night Writer December 9, 2016 6:05 pm

    @43: Edward, so you are just fabricating nonsense when Alice says it is all about abstract and does not hold that business methods are ineligible. I guess you just decided it would be fine to write what Stevens wrote in Bilski even though it was not a holding.

  46. Curious December 9, 2016 7:37 pm

    Night, the underlying principle is that business method and math inventions are non statutory.
    Except there is nothing to that effect in the statutes and SCOTUS has made it up on the fly.

    Physics is applied math, engineering is applied physics. Words are abstractions and claims are made of words. Look, I’ve “found” an abstract idea in a claim — not very hard — the Federal Circuit does it all the time.

    Night, do we have to define business method, or just proceed by example? We have the data-points of Bilski and Alice.
    Except that the Supreme Court has not indicated that business methods are unpatentable — to do so would certainly overstep their bounds. Instead, they’ve given us a couple of pixels of a HD-resolution picture (that’s 1920×1080) and said ‘fill in the rest.’ How awfully generous of them.

    The Court’s interpretation of 101 is a quagmire. 10 years from, after the Federal Circuit has issued 1000 decisions invalidating patents across various spectrum of technology, nobody will still know with any certainty whether a patent is directed to statutory subject matter (err … I mean judge-identified subject matter). There is just too many types of technology and too many different ways of claiming it to cover it all.

    Anybody who has anything but contempt for the current treatment of 35 USC 101 by the courts is an ENEMY of the patent system. 2 1/2 years post Alice and I’m still writing to clients every day saying — “I don’t know whether this 101 rejection will be affirmed or reversed by the Board. Who knows what the landscape will look like in 2 or 3 years.” The expression raised a few times on this blog — “void for vagueness” comes to mind.

    If an inventor cannot know, with any reasonable certainty, whether his/her invention is patentable, are they going to invest their time and money developing it when a court can pull the rug out from under them at any time (even with an issue patent) and all their hard work will be at the mercy of some multi-national conglomerate? The answer to that question is NO!!

    I read an article in the NY Times saying that “gadgets” are becoming extinct. Hardware is becoming commoditized and what was once many different gadgets are being amalgamated into a single thing (e.g., one’s phone or tablet). The article also went on to say that even “hardware” companies are really software companies that are just providing platforms for their software. It is the software — as a technology — that is the driving force for our new economic society.

    It is a shame that we have technical-illiterate judges and/or those judges that the information era has passed by decades ago (improperly) making policy judgments as to what inventions are worthy of patent protection. If we have as our goal to make America great again, we need judges (and a patent office) that believe that the current approach of (drastically) shrinking the scope of the patent system is the WRONG way to go about that goal.

  47. Ternary December 9, 2016 9:48 pm

    Edward Heller @31 and 35, I try to follow your reasoning. But then you say: ‘… the underlying principle is that business method and math inventions are non statutory‘ in @35 while you maintain in @31 that “I have no dispute with patenting circuits where the novelty is claimed is new math, because circuits have “electrical” signal inputs and signal outputs.”

    The statute is, I believe, silent about these subjects being patent ineligible. But the courts interpreting the statute are not.

    A computer is a very large circuit/machine wherein the functional steps are converted into an arrangement of physical (binary) switches of signals. The operation of the computer can be described as a combination of the hardware and the instructions. On the lowest level (the realization) in a computer, you will not see and cannot see mathematics or a business method, as it does not exist there. It is as if you would look at the construction of a capacitor, where you will not see a convolution integral or a differential equation.

    Without any description what a programmed computer does, it is merely an electrical machine with inputs and outputs and as such is patent eligible, according to the statute. And you agree with that yourself in @31, under a condition of “new math”, whatever that is. But then you back-paddle in @35 by making these subjects non-statutory, depending on what the use (business method) is or if it is a “math invention”. (what is a math invention?)

    A circuit that is a digital low pass filter by using a moving average algorithm is patent eligible (but known of course). But using the same algorithm in a decision support computer to automatically sell or buy stock is not? Such a distinction does not make sense from a scientific/technical point of view. And without a description you would not be able to detect the difference in a computer circuit. And you need the description to provide utility.

    In the end, patent eligibility of programmed computers is not (as many things now) a matter of science and technology, (because from that perspective programmed computers are machines) but a matter of ideology and economic interest, the sole reason why CBM appears at all in the statute for review eligibility.

  48. Night Writer December 10, 2016 6:17 am

    @45 Curious: thanks for the help Curious. Edward’s tide of lies can be hard to deal with. I hope everyone can see why Edward is unfit to be a leader or hold any office related to patents. He misrepresents the law and the facts. He is not a friend of patents or innovation.

  49. Night Writer December 10, 2016 6:19 am

    @47: Ternary –in the end, one can take any circuit and turn it into A/D converters and software. ANYONE that works in this area for real —like me — knows that.

    Yet, the CAFC ignores this fact and the lowly disingenuous sods like Edward (Ned) push lies every day.

  50. Anon December 10, 2016 9:02 am

    Well stated Ternary. You try to follow a “logic” of Mr. Heller’s that hews to an ideological Ends without a means grounded in facts or law.

    Anyone following the 101 discussions on this or other blogs can quickly come to the same conclusion.

  51. Edward Heller December 10, 2016 4:18 pm

    Ternary, the issue you are talking about, improving a circuit through improved mathematics, was somewhat addressed in Alappat because there what was being claimed was a rasterizer, which was a particular circuit in the graphics unit for a display. The rasterizer is a circuit that provides anti-aliasing in a graphics unit. At one point the court said that one could substitute a programmed computer for the particular circuits being claimed and that would not change the result because, in the end, the programmed computer, in the context of the claim, was a rasterizer – in other words, it was operating on inputs and providing outputs in a graphics processing unit. In Alappat, context was important. The programmed computer is not simply calculating data. It was operating in a claimed environment – the graphics unit for a display.

    Now, if the claim were not to the use of a programmed computer in the context of a rasterizer of a graphics unit for a display but simply to the use of a programmed computer to calculate an algorithm, then the programmed computer is doing nothing useful that is new in any substantial way from using the program computer to calculate any other algorithm. The computer is not taking real world signal inputs, transforming them, and in providing outputs. The computer is only providing a number, even though the number might be useful in some context. The computer itself is not different. The algorithm may be different, but the number output is not being used to do any anything useful.

    Now, we all know that many computers have micro programming or software that improves the utility of the computer. Claimed in a manner such that it is clear that we are improving the computer, then I have no problem that the claim is directed to statutory subject matter.

    Many other inventions that are software-based are claimed in the context of a useful application. Software and mathematical inventions are used to improve computers, communications between computers, encryption and decryption of signals, etc. etc. etc. My particular favorite is the Viterbi algorithm, that is so important in disk drives today because the algorithm permits one to use very noisy signals and still obtain information from them reliably.

    I do not think it is hard to understand the distinctions we are talking about here. Software is essential for proving computers, computer systems, and machines in general. I have never seen any problem at all, in court or in the patent office, where the claims are directed to improvements to machines albeit software or mathematics might be involved.

    The problem has always been, in my view, when people try to claim the mathematics themselves, or business methods, where the improvement is essentially mathematical in nature. Here, what is being improved are not computers and computer systems, and the like, but something nonstatutory.

    Now in practice, the distinction between the eligible and ineligible is whether the mathematics or software is being used in an application that is otherwise statutory. That is what we learned in Diehr, where the programmed computer was used to improve a molding process.

    Getting lost in how a computer operates gets one nowhere fast because that focuses the mind on irrelevancies. No one doubts that computers are machines. But simply reciting a machine in a claim is not sufficient where the invention is not in the machine but in the nonstatutory method and that method that is not being applied in a useful application.

    Now one constantly hears that the Supreme Court has not categorically excluded business methods. Primarily they did that, I believe, because there is no good definition of “business method.” But they did hold ineligible the claims in Bilski and Alice both of which were directed to business methods. If business methods were categorically eligible, the result in those cases would have been to affirm eligibility. That is not what happened.

    There is talk about “fixing” 101. But no fix would change the fundamental law that patents cannot be directed to products of nature, laws of nature and abstract ideas because this “rule” is essentially constitutional in nature. Further, the Supreme Court has already ruled that the claims in Bilski and Alice are abstract.

    There is nothing Congress can do to overrule the Constitution.

  52. Curious December 10, 2016 5:43 pm

    Here, what is being improved are not computers and computer systems, and the like, but something nonstatutory
    What a load of BS. There is no requirement that any patentable invention has to be an “improvement” or an improvement of something “statutory” — whatever that means. Can someone point me to the section of 35 USC that describes what category an “improvement” has to be in.

    I’ve seen patents for loads of golf training aids. You can probably find a couple thousand of those that are patented. Q: What does it improve? A: One’s golf game. How is that statutory based upon your reasoning?

    But no fix would change the fundamental law that patents cannot be directed to products of nature, laws of nature and abstract ideas because this “rule” is essentially constitutional in nature.
    Except it is nowhere to be found in the Constitution and the findings presented by the Supreme Court to support such assertions have been pulled from their nether regions.

    Further, the Supreme Court has already ruled that the claims in Bilski and Alice are abstract.
    Yeah — we get that. That’s why we need amend 35 USC 101. The claims in Bilski and Alice covered real products — not some imaginary “abstract ideas.”

    There are those of us that are tired as to having the Courts decide (based upon their own biases and subjective reasoning) who are going to be the winners and losers as to what technology deserves patent protection and what technology does not. Obviously, you are perfectly happy with that situation — hence I label you not as a friend of the patent system — but as the opposite.

  53. step back December 10, 2016 6:33 pm

    Curious @52

    35 USC 101 includes the conjunction, “or”.
    It says “or an improvement thereof”.
    That means it could, but does not have to be an improvement.

    35 USC 101 does not say what kind of improvement.
    It does not say it must be a “techno-illogical” improvement.

    Of course that is a secret we must keep hidden from SCOTUS and the CAFC.
    Shhh 😉

  54. Ternary December 10, 2016 8:04 pm

    Edward Heller @51, You say you like Viterbi in disk drives (as an error correcting algorithm). But Viterbi relates in general to hidden Markov models that can be widely applied, for instance in trading strategies. You accept that Viterbi is patent eligible in convolutional codes, would you accept that a Viterbi approach is patent eligible in automatic trading. The difference is that in one application a signal is a data signal from a disk and in the other is a stock price or a buy order.

    You say: “The computer is not taking real world signal inputs, transforming them, and in providing outputs. The computer is only providing a number,…” But that is not true. A computer does not provides numbers nor does it accept numbers. A computer accepts and provides signals and some nifty devices have to be applied to display something that humans recognize as a symbol that represents a number. (the old nixie tubes, now forgotten, are an example of that) Numbers do not exist inside a computer, only signals or physical phenomena.

    You say: “No one doubts that computers are machines.” And that is the whole crux of this discussion. Programmed computers are machines and are statutory patent eligible subject matter. Bilski and Alice describe useful applications. There is no scientific reason to declare some computer applications patent eligible and others not. How is it that one admits that a programmed computer is a machine and in the next sentence declares it to be an abstract idea? Declaring a programmed computer an “abstract idea” does not even make sense.

    You end with: “…no fix would change the fundamental law that patents cannot be directed to products of nature, laws of nature and abstract ideas because this “rule” is essentially constitutional in nature. Further, the Supreme Court has already ruled that the claims in Bilski and Alice are abstract.”

    The Constitution says nothing about computers or software or even abstract ideas. The constitution says: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;”

    Congress introduced the concept of abstract idea in patents. I would say that Congress is also able to confirm that programmed computers are not an abstract idea and overrule Bilski and Alice. Congress would be in line with established scientific evidence that programmed computers are machines, to which you agree. It would all be very constitutional. Then we can return to reviewing patent applications on 102, 103 and 112 and get this piece of byzantine nonsense behind us.

  55. Curious December 11, 2016 12:14 am

    Declaring a programmed computer an “abstract idea” does not even make sense
    Welcome to the (il)logic of the Supreme Court.

    Here is some more for you and I’m paraphrasing.
    * Courts should not read into the statutes limitations that Congress did not intend to create — followed by court-created the abstract idea exception that they choose not to define.
    * The claimed invention has to be considered as a whole — except we get to choose what it is “directed to” and ignore whatever the &$#$ the claims say. We’ll also ignore those portions of claims that are not “substantially more” — whatever the %$#$ that means.

  56. Night Writer December 12, 2016 5:55 am

    Edward (Ned) (AKA, “Ned the witch hunter.”) >>Getting lost in how a computer operates gets one nowhere fast because that focuses the mind on irrelevancies.

    What a load of garbage. The claims are directed to a method of information processing and the machines that process the information. Information processing is a physical process that requires time, energy, and space. The conservation of information is the most important law of physics.

    Again, you play a little nonsense game where you misrepresent the claims and then say the claims are like some abstraction in your head that makes them witches.

    >>There is nothing Congress can do to overrule the Constitution.

    I think I am the first one to start saying this. I agree that the SCOTUS is just going to rip apart any attempt to circumvent Alice. They are saying that Alice is based on the Constitution. I think Alice is unconstitutional. The logic of Alice is that anything that fits the test of Alice tends not to promote and is therefore unconstituional.

  57. Edward Heller December 12, 2016 2:43 pm

    All:

    Improvements must be to of one of the four categories.

    Golf training aids: probably manufactures.

    Computers ordinarily do not operate on signals to produce signals. However, computers may be applied to do just that, in which case, the computer may just part of a statutory process or machine. Diehr. Alappat.

    Improvements directed to better/faster methods of data processing should be eligible. That is why I think Versata was wrongly decided. Applying Viterbi to improve stock market performance would, I think, be directed to patentable subject matter. However, a claim to the Viterbi algorithm in the abstract would not.

  58. Night Writer December 12, 2016 4:44 pm

    Ned: >>a claim to the Viterbi algorithm in the abstract would not.

    Witch burner language. Please try to stick to patent law. Do you mean a claim that fails 112?

  59. Edward Heller December 12, 2016 4:52 pm

    Night, assume Viterbi was F = MA. Now such an equation would be widely useful, but simply claiming F = MA is not, or at least, should not be eligible.

    Now, apply the algorithm to any signal to produce a transformed signal….

  60. Night Writer December 13, 2016 7:51 am

    @59: you are trying your witch burner language again. This game of assume the claims they are something they are not, then it might be justified for me to go down the witch burning route. How about dealing with the claims. How about dealing with reality. Real machines. Real processes. Enablement. You know–patent law.

  61. Edward Heller December 13, 2016 9:01 am

    60. Night, it is simply beyond me why you protest so much unless you are not trying to claim improved computers, computer methods, machines or processes, but business methods where the recitation of the computer is nominal. Improved computer processes are clearly patentable subject matter. See, e.g., Enfish.

    You talk of enablement. What does one have to do to enable F = MA?

  62. Anon December 13, 2016 9:35 am

    Mr. Heller,

    You protest too much in that you yourself protest against business methods as some de facto ineligible item.

    May I quote you from your own recent post from that other blog?

  63. Ternary December 13, 2016 9:38 am

    Good answer on Viterbi, I think, Edward Heller.

    You bring up F=ma (Newton I suppose). Kalman filters, for instance for position determination, apply Newtonian (or Lagrangian) formulations, for instance of satellites or incoming airplanes. The algorithms are defined in state-space and are “mathematical.” The end result is for instance a mark on a radar screen to accurately determine a position. I would say that this is an application that generates a (calculated) signal by a machine, and is patent eligible.

    In Thales Visionix v. USA and Elbit Systems the Court rejected the claims of such an application (positioning calculated from sensor data from sensors in a helmet) exactly because of the algorithmic approach. The defendants argued that the “system” is merely a generic, physical application of the mathematical formulae.”

    Physical applications of mathematical formulae by a machine are patent eligible. We agree on that, I guess, as it relates to Viterbi at least. Though the court disagreed.

    And perhaps we do not disagree on this that: A physical application of mathematical formulae and software by a machine generating a measurable signal as a result is patent eligible.

  64. Edward Heller December 13, 2016 5:45 pm

    T@53, we agree. The key is that the application is in fact real.

    The folks who do not get it should review Flook where the output was a only number. But if the input were signals and the output were transformed signals that were useful, I suggest we have Diehr or American Bell (the transformation of sound into electrical signals).

  65. Edward Heller December 13, 2016 5:46 pm

    Night, give me any claim, just one, that you think is eligible and that you think that I think is not.

  66. Night Writer December 17, 2016 5:50 am

    @65 Ned: you are the witch burner. Show us some witches. But, apparently we just need an information processing program without a ROM.

  67. Night Writer December 17, 2016 5:59 am

    @@ Ned:

    You are just playing your old games again. 1) You are saying business method when there is no good definition for this and the SCOTUS has said that it does not hold that they are ineligible. 2) you are just falling back to the EPO test. 3) You are just blathering out all these abstractions that have no real world meaning. Try to be a patent attorney and use 112, 102, and 103. There isn’t a need for more.

    And, as to your F=MA statement. What is the relevance of that? What claim are talking about? And, you are trying to make a false equivalency between F=MA and all information processing that you don’t think are eligible under Enfish? And, again, you are trying to bring in useful as if a business method is not useful. So, people spend millions of dollars buying things that are not useful for their businesses–sure.

    Your garbage never changes. Your arguments are so disconnected from one another and so disconnected with reality that it is difficult to respond to you with any respect.

    It is simple. Information processing is a physical processes. Representing information is a physical process. Examining claims is easy. See if they are enabled and then look to the prior art. You would like to bring in all these witch tests that involve extra “tests” based on abstractions in your mind that have no fixed meaning and based on “tests” with no fixed meaning.

    We all get Flook. We all get Benson. We all get witch burners too. You again, by the way, are misrepresenting case law because Flook was “cabined” be Diehr.

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