Operational Mathematics on a Processor is not an Abstract Idea

By Peter Lablans
February 19, 2017

Mathematics to many people is completely abstract and thus, per definition, is not doing anything physically.  But is that true for math in a processor?  In this article I will describe how mathematics in computers is applied to actually “do something.”

It is well known that mathematics is used to model physical phenomena.  We all know the formula E=mc2, which says that an energy equivalent to a mass m is equal to the product of the mass m and the square of the speed of light.  You can calculate the energy of a mass, but the formula does not tell you how to release that energy.  And calculating the energy by executing E=m*c2 for 1 gram does not release that energy.  That supports the “abstract” part of mathematical expressions.

Another model of a physical phenomenon is Ohm’s law: V=I*R, which says that the voltage over a resistor of R ohm is the product of the current I through the resistor and the resistance R of the resistor.  Executing this formula in your mind or on a computer does not generate a voltage.  It would also be absurd to assert that the resistor performs a multiplication.  That is not is not the meaning of Ohm’s law.

Movie as sampled reality

A movie is a rapid display of individual pictures at a certain rate, like at minimum 12 images per second.  The human vision system works like a sample and hold system and at a certain display rate our brain can no longer distinguish individual images and sees a moving picture.  A movie or video camera samples the visible spectrum at a predetermined rate and a movie is a sampled representation of reality.  The images of a film movie are printed on the film, previously celluloid and nowadays a polyester film.  The film movie is a material thing with analog samples (images) in sequence placed on the carrier which is spooled on a reel.  Images in a digital camera are data elements obtained from a light intensity sensor rather than a physical print on a carrier.  The signals from the sensor elements are analog and are quantized by an A/D converter into data elements.  From that moment forward, until the image data is used to activate a display device, no images as recognized by a human exist.  Raw image data from image sensors have several inherent errors that have to be corrected or minimized by processing of data.  One operation performed on a digital camera is spatial interpolation between pixels, which is performed in accordance with a mathematical formula.  This is truly mathematics based and no physical equivalent exists. We can explain what the physical effect is of interpolation and what would happen if no pixel interpolation was applied.  However, the physics only come into it after D/A conversion of data.  Up to that moment there is only data processing, mostly in accordance with mathematical expressions.

The Sampling Theorem

The basis of many digital devices is the sampling theorem. It states that when signal samples are generated at a speed of at least 2 times the highest frequency component in the signal, then the original signal can be fully reconstructed from the samples.  And apologies to anyone who finds the above trivial.  However, some people have picked up some terms and concepts but draw the wrong conclusions about computers and math.

Applying the sampling theorem involves creating a sample of a signal, digitizing it into a word of bits, rapidly processing the word of bits in accordance with a processing rule into a new word of bits, converting the new word of bits into an output signal that may be used to control a screen or earphones on a timely basis.  This is fundamentally how your smartphone works.  The processing rules are mathematical formulas in accordance with which physical switching circuits are created and activated.  (There is nothing “abstract” in that step. But that is not the point of this article)

One example of a digital sampled device is a low-pass filter realized as a moving average filter.  The working is simple.  A device receives a signal and samples it at let’s say hundred times per second.  A processor for instance takes the last 50 samples after a new sample has been received and calculates the average of these samples and generates a signal from the average and outputs that average as a “filtered” signal.  The mathematical averaging diminishes the effect of spikes in the sample value. Spikes may be considered to be higher frequency signals.  Thus the mathematics establishes a low-pass filter.

For real-time operations it is required that the instructions that operate in accordance with the mathematical expressions generate the output samples on a timely basis without delay.  With GHz clock-speed processors that is generally not a problem.  These devices are in essence calculators with additional functionality/devices: a memory to store data, a clock mechanism to process data at the right moment, a delay and feedback line usually implemented as a shift register.  What makes a sampled calculating device a filter or a modulator are the A/D and D/A converters that change a signal into a data element and converts a data element back into a signal.

Filters and modulators used to be devices made from resistors, inductors, capacitors, amplifiers and a lot of connecting copper.  These are now replaced by instructions determined by mathematical expressions that are cleverly implemented on a computing machine.  You really have to let this sink in.  The math no longer is an abstract model of reality, it is reality.  We are getting to a stage where it may no longer matter if you have data or a physical expression of the data.  For instance a modification of a data file that can be expressed by a 3D printer into an object is for all practical purposes a machine that works on the object.   Here are some other well established examples:

Medical Imaging

Many medical images such as MRI images do not really exist in the sense of a photograph which captures light on a light sensitive medium.  Signals generated in MRI are artificially created and captured by sensors and converted into data.  After data are obtained, mathematical expressions are used to extract a data slice that is displayed as an image on a screen.  Sometimes it is desirable to display an image of organ, which exists in different slices.  The technique to extract a 3D image of an organ from a data volume is called 3D rendering and is basically a series of mathematical operations on data elements or voxels.  Until an image is displayed on a screen, the processor in an MRI machine is a big calculator operating on data.

GPS

A Global Positioning System (GPS) works off signals received from satellites.  To calculate a GPS position and to minimize errors a set of equations is solved based on data derived from the received signals.  While receiving satellite signals is not a trivial operation, it is fair to say that a significant part of a GPS device is a calculating machine.

Control Systems

Many control systems either in cars, airplanes, thermostats, toilet flush systems, power generating systems work with feedback.  A pre-determined setting is checked against a state of a device and automatic control activates a mechanism or device based on an error between the pre-determined setting and actual state.  Rather than trying to build a control system in electronic components, it is often easier to model the system in a set of equations (state-space equations for instance) and program compensating equations in a processor.  Control systems, except for its sensors and actuators, include mainly a programmed calculator.

Cryptography

Public key cryptography is one of the most widely used security applications.  At the heart of public key cryptography are truly hardcore mathematical operations.  One mathematical operation that is often used is not more complicated than high school mathematics: modular exponentiation or repeated modular multiplication.  The other operation that is used is a bit more involved and is called elliptic curve cryptography.  But it is all math that is used to provide instructions to a computing device.

Many, many more examples can be given of the use of mathematical expressions in useful devices.

Operational Math

Mathematics has long been accepted as a tool to model the physical reality.  For many it is hard to grasp that math actually “does something.”  The reality is that mathematics based instructions in computers generate signals that are useful and used.  This type of mathematics may be called “operational mathematics.”   Operational math already replaces devices that used to be made from valves and gears or from electronic components.  Operational mathematics also enables new devices that were previously unimaginable.

Mathematical expressions continue to trigger 35 U.S.C. 101 rejections in patent applications.  These rejections are scientifically arbitrary actions as claims are being allowed that use terms like: Fourier Transform, correlation, wavelet, multiplicative inverse, polynomial, finite field, convex optimization, multiplication, exponentiation, Bayesian, estimation and even computing.  These are all mathematical operations that correspond to mathematical expressions.

Operational math on a processor is a switching device and not an abstract idea.  However, issues of operational math go beyond patent eligibility. Due to its complexity it is often unrecognized by the general public and considered to be “just math.” I am pretty sure that most Examiners recognize “operational math” for what it is, but are instructed to ignore what they learned in school.  We are at the beginning of a massive use of “operational math,” of which many further examples can be provided. The coded world is rapidly becoming the real world, while some people appear to still see a mechanical world described by abstract math.  That mechanical world has passed and the role of “operational math” is becoming more influential than ever.

The Author

Peter Lablans

Peter Lablans is a prolific inventor and founder of Ternarylogic LLC and is the named inventor on over 50 patents. He is an Electronic Engineer trained by Dr. Gerrit “Gerry” Blaauw, one of the three co-architects of the legendary IBM System/360 and who taught him to model digital machines in APL and the hard reality that despite the mathematical modeling a computer is not an abstract idea. Peter also works as a patent engineer in patent prosecution. His stake in the discussion is to advocate a fair, modern and affordable patent system that encourages all inventors, including independent inventors, to obtain and assert patents.

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 47 Comments comments.

  1. Inventor Woes February 19, 2017 9:29 am

    While a computer may not be an abstract idea (because it is a machine), a computer program algorithm is an abstract idea. If I told you to go outside and take out the trash, that’s an algorithm. If I tell a computer to do the same, it is also an algorithm. How can you patent that? It doesn’t make sense. It’s an abstract idea. If something is targeting a judicial exception, there must be “something more.” That’s the law. I thought we lived in a country of laws, not men.

  2. Eric February 19, 2017 10:41 am

    Anything that can practically be performed by a human without a machine is abstract and excluded from patent eligibility. This article, along with its title, is too political, even for IP Watchdog.

  3. Anon February 19, 2017 11:07 am

    The ideas being expressed in this article have been articulated previously in the notion that each of the following are distinct and separate, and need to be treated differently under the intellectual property protection laws:

    math (the pure math that may be considered abstract)

    applied math (the “math in use” that most definitely is not abstract, and can be said to be reflected throughout ALL engineering endeavors)

    MathS (the philosophy tied behind both math and applied math, and can also drive engineering efforts as well as be tied to philosophical musings, such as those of Tegmark.

    In any discussion on the merits of innovation and protection of innovation, one must keep careful and exacting track of these differences, as those with philosophical bents against the protection of innovation in the form of software only too readily obfuscate and conflate these items in order to promote their versions of how existing law should be read (or rewritten by the Court(s), as the case may be).

    IW,

    You are incorrect as to your own attempt here at distinguishing a computer program (a manufacture “built” – since built does include writings in certain cases – to expressly be a machine component) from the strawman insertion of a computer program algorithm. You engage in NOT taking the claim as a whole when you try to parse it down to what you want to call the “abstract idea” portion, and you want to apply eligibility on only a single portion of a typical claim.

    You are guilty of obfuscating between math and applied math.

    Your statement of “That’s the law” is thus untrue.

    Your statement of “I though we lived in a country of laws, not men. IS true – but your entire statement is a deception being coupled with the untrue with the true.

    Eric, your statement is not correct in its attempted brevity. Many machines are deliberately built to do exactly those things performed by a human without a machine – and there is ZERO chance that those items are abstract and excluded from patent eligibility.

    Your error is captured by the popular term “Anthropomorphication (the ascription of human characteristics to something nonhuman),” and you err by thinking that computers are nothing more than what a human mind might do. It is pure fallacy to think that a computer is merely a proxy for the human mind, as to this day we do not yet understand how the actual mind works – suffice to say that it most definitely does NOT work like a computer.

  4. Night Writer February 19, 2017 11:31 am

    One way to look at this is structure. Search for how many bits it would take to represent something, which gives a measure of the structure.

    Structure is what is important.

    We all need to keep in our information processor (brain) that math is a manifestation of our brains. Math is not outside of us.

  5. Night Writer February 19, 2017 11:38 am

    Everyone should try to understand how 101 was expanded. The notion that a “pure mathematical” formula shouldn’t be eligible was generally agreed upon. Things like Euclid’s equation. Then what happened was the anti-patent crowd pushed into this more and more applied math and anything that had a formula. Of course, with the advent of computers applied math become more and more important for inventions. (So, the test of whether the invention was really secretly a way to invent the mathematical formula was invented.)

    Note that this is the same history for natural laws. Where at first all agreed that a natural law shouldn’t be able to be patented, but then the anti-patent forces expanded this into everything that had to do with DNA and the human body with cases saying that functions of the human body are really laws of nature.

    It is really based on ignorance of modern thinking (or more likely the exploitation of the ignorance by the likes of Google). People like Taranto at the Fed. Cir. have opinions that shame the country. IMHO the only way forward is to dissolve the Fed. Cir. and reform it. This will enable a roll back of the Google appointments and get rid of the mad cow disease judges.

  6. Inventor Woes February 19, 2017 11:59 am

    Anon

    You are incorrect as to your own attempt here at distinguishing a computer program (a manufacture “built” – since built does include writings in certain cases – to expressly be a machine component) from the strawman insertion of a computer program algorithm. You engage in NOT taking the claim as a whole when you try to parse it down to what you want to call the “abstract idea” portion, and you want to apply eligibility on only a single portion of a typical claim.

    You are guilty of obfuscating between math and applied math.

    Your statement of “That’s the law” is thus untrue.

    One word… Alice.

  7. Gene Quinn February 19, 2017 12:45 pm

    Inventor Woes-

    You are being cute. I like that. It is an admission that you are wrong and you know it.

    You say: “a computer program algorithm is an abstract idea.”

    That is correct. A single algorithm would be considered an abstract idea today in court. A computer program (i.e., software) is not an abstract idea.

    You say: “If something is targeting a judicial exception, there must be “something more.” I thought we lived in a country of laws, not men.”

    How utterly asinine. Clearly, we do not live in a country of laws and do, in fact, live in a country of men (and 3 women) who create and continue to cling to judicial exceptions where there is no authority in the LAW for them to do that. So the entire Alice/Mayo construct is fundamentally lawless. See (which will start to enlighten you):

    http://www.ipwatchdog.com/2017/01/23/mayo-v-prometheus-lawless-decision-wreaking-havoc-patents/id=77438/

    As for your “one word” response to Anon, which simply said “Alice,” I have a few words for you… try and keep up if you can… Enfish, BASCOM, McRo, AmDocs and Trading Technologies International. And if you don’t like those Federal Circuit words, try State Street, which the Supreme Court has ALWAYS recognized in written opinions and oral arguments was a software innovation that deserved the patent protection afforded. To confirm that software is patentable (and so you won’t embarrass yourself again) you might also want to take a look at the Patent Act. I recommend the tax strategy exclusion of the AIA to start, and I also suggest you become familiar with CBM, which is an entire post grant procedure established for the sole purpose of killing some (not all) financial services software patents.

  8. Inventor Woes February 19, 2017 1:16 pm

    I believe a great man once said: It is emphatically the province and duty of the Judicial Department to say what the law is. Of course the supreme court is composed of men and women. If that’s what they say the law is then constitutionally it is valid. SCOTUS is the final arbiter on matters of constitutional law.

  9. Inventor Woes February 19, 2017 1:22 pm

    Gene,

    Here’s a patent attorney who is seemingly against the idea of patents: http://musicpreneur.com/podcast/stephankinsella/

    What’s up with that?

  10. Anon February 19, 2017 1:51 pm

    IW,

    Your statements belie your actual ignorance of the Constitution, the law that flows from that document, and the roles of attorneys within the system of laws.

    The Supreme Court is not above the Constitution and its checks and balances of the three branch system of government, SCOTUS is not in fact the final arbiter, as their decisions are not “ironclad” and do NOT become a part of the Constitution itself, and, in fact, are overturned in several ways short of Constitutional amendments.

    Your one word of “Alice” shall be met with two words: “Dred Scott.”

    A bit more advice: don’t pretend that you know the law better when conversing with those that clearly DO know the law better – it does not end well for you.

  11. Anon February 19, 2017 2:06 pm

    Kinsella is one of the worst “examples” that you could come up with, IW. His positions have been routinely shown to be fallacious.

    Yes, there are patent attorneys against patents. Please do not act like that means anything important.

  12. Anon February 19, 2017 3:16 pm

    I am proving your point…?

    No. You are proving mine.

  13. Inventor Woes February 19, 2017 3:22 pm

    Anon,

    Try not to use the “I know you are but what am I?” approach. It’s quite childish.

  14. Gene Quinn February 19, 2017 3:30 pm

    Inventor Woes-

    You say: “I believe a great man once said: It is emphatically the province and duty of the Judicial Department to say what the law is. Of course the supreme court is composed of men and women. If that’s what they say the law is then constitutionally it is valid. SCOTUS is the final arbiter on matters of constitutional law.”

    True, but again you are intentionally misleading. The Patent Act have never been declared unconstitutional, which means that even SCOTUS is required to follow the statute. They do not follow the statute. That means SCOTUS is wrong and their decisions are lawless. Pretty simple and straight forward. Please do try and inform yourself and keep up.

  15. Gene Quinn February 19, 2017 3:31 pm

    Inventor Woes-

    I see. That makes sense now. You are Stephan Kinsella, the liar who has been banned here for years.

    -Gene

  16. Gene Quinn February 19, 2017 3:33 pm

    Everyone-

    I’ve grown tired of the antics of Inventor Woes. He is obviously a shill who is only attempting to get in the way of thoughtful discussion. He has been banned.

    -Gene

  17. Eric February 19, 2017 4:28 pm

    There is an ongoing misconception, reinforced by many in this thread, though, Gene. “…pure fallacy to think that a computer is merely a proxy for the human mind….” Either a claim expresses a difference in the way a computer performs the function differently from a human mind would, OR (more commonly, at least on filing) it doesn’t because it’s written at too high of a level. When the claim doesn’t express the difference, it’s not up to courts to guess at how it might be different than the human counterpart–instead it’s invalid because it covers an abstract idea. Many here seem to be saying that courts should do the work to find a difference (relative to human performance) in the way something is being performed on a computer. That’s not the courts’ job; it’s the job of the drafting patent attorney, and the result of that analysis should be clearly expressed in the claim.

  18. Anon February 19, 2017 4:54 pm

    Eric,

    The only item needed to express the difference is the word “machine” (for machine category claims).

    The rest of the “breadth” issue is outside of 101.

  19. Eric February 19, 2017 5:03 pm

    Anon, that is simply not true according to the current case law. Thank you for making my point.

  20. Anon February 19, 2017 5:33 pm

    Eric,

    Given the plain fact that on its face a machine cannot be confused with a human mind, your “point” is lost and, in fact, the current case law has left its moors.

    Thank you for making my point.

  21. Richard February 20, 2017 8:06 am

    Notwithstanding the raging controversy regarding the author’s legal conclusions, I found his technical explanation to be an informative summary of signal processing basics.
    It is unfortunate that commentators who are lawyers cannot express their disagreement with adjectives more dignified than “asinine.”

  22. angry dude February 20, 2017 8:49 am

    Perhaps the best example not mentioned by the author is SDR – software-defined radio

    Radio used to be a province of analog circuits – pure hardware with many patents issued and associated patent disputes – starting from Tesla, Marconi and later on Armstrong (who committed suicide btw) etc etc.
    No one ever questioned patentability of new and improved radio circuits.

    Fast forward to 21st century:

    Enter SDR – software-defined radio
    https://en.wikipedia.org/wiki/Software-defined_radio

    Now it is suddenly “abstract” in scotus and cafc definitions and thus not even patent eligible

    Go figure….

  23. Gene Quinn February 20, 2017 10:30 am

    Richard @21-

    You are obviously talking about me using the word asinine. I’m sorry you don’t like the word, but it is a word with a specific meaning. Asinine: extremely stupid or foolish.

    Now that is out of the way, obviously you were not paying attention very closely. I did not suggest what the author wrote was asinine. I said the comments of Inventor Woes were asinine, which they were.

    Second, if you took the time to actually read what I wrote you would notice that I explained exactly why the comment of Inventor Woes was utterly asinine. So what is unfortunate is people like you are unable to actually take the time to read before you comment. That really dumbs down the dialogue. In the future you might want to pay better attention before commenting when what you are going to say is inaccurate.

    -Gene

  24. Night Writer February 20, 2017 10:35 am

    @21 Richard It is unfortunate that commentators who are lawyers cannot express their disagreement with adjectives more dignified than “asinine.”

    Richard, the problem is that there is no honest intellectual discourse. The things that some attorneys are saying simply have no basis in science and engineering. They know that and are anti-patent judicial activists. Many are paid to say these things. Many more are employed by corporations like Google that are intent on burning the patent system down. So, please. Move to the real world. This is not an intellectual discussion, but a battle for our Democracy. Just look at the “patent reform” Congresspeople. Invariably the biggest or one of their biggest donors is Google. And, there is a non-profit that hires paid bloggers to blog against patents.

    So, please get real.

  25. Night Writer February 20, 2017 10:48 am

    @21 Richard

    Plus, the realty is that there are many unethical papers published by academics. For example, Mark Lemley’s papers are unethical. The cites are off; he misrepresents history; he misrepresents case law, etc. He should be removed from Stanford. And, the law journals have turned into jokes. They are vanity press for professors where they can anything they want. There are many others too. I’d say about 1/2 the people that write about patents should be removed from their academic positions for ethics violations.

    Consider presenting graphs to show the rise of patent litigation without normalizing the graph –even for population growth much less economic growth of high-tech. Highly, highly, unethical. Yet nothing is done about this. And, in some cases the professors are rewarded and appointed positions as ethics professors. A joke.

    So, if you want a civil discussion, start with policing the ethics of academics.

  26. step back February 20, 2017 11:57 am

    @21 Richard

    The battle line is not drawn along the map at the points where “you” start comprehending that what is going on here is processing of real physical electric signals (i.e. electrons) with real electronic circuits.

    Instead the battle line occurs at the intersection of judicial vanity and judicial ignorance.

    Most judges consider themselves to be very smart (high IQ). And they are.

    But that alone is not enough because no matter how smart you are, the human brain (a biological organ) is of finite size, of finite speed and of finite (as well as age diminishing) ability to rewire itself (a thing referred to as plasticity).

    No matter how hard they try, many an elder judge (or PTAB ALJ) will never comprehend computers, will never grasp modern biogenetics, will never fully appreciate modern physics and science.

    There is a reason why almost all of our best and brightest (same high IQ) young PhD earners take so many years to finish their studies and finally get into the work world.

    It’s because this is hard hard, brain straining stuff. The biological human brain organ is not a silicon based digital electronic computer and vice versa the computer is not a replica of the human brain. The notion of abstraction, of “mind” and of being able to do stuff with pencil and paper are delusions. These delusions appeal to the judge’s vanity by making them “feel” smart. (Gee now I get it, molecular biology is just like plucking a leaf from a tree.)

    But they are not anywhere near that smart and all knowing. They are simply parading proudly in arrogant, asinine and vain ignorance. They just don’t know it. We see it. They don’t. Will they ever? (See the movie, “The Sixth Sense”).

  27. step back February 20, 2017 12:01 pm

    @8 the banned IW,

    One part of what you say is correct.
    They are no better than men and women.
    They are not demi-gods.

    Just cause they say something, that doesn’t make it necessarily so.
    (To paraphrase Mark Twain?)

  28. step back February 20, 2017 1:24 pm

    Vanity Be Not Proud.

    Now playing at a less than major website near you.

    http://patentu.blogspot.com/2017/02/vanity-be-not-proud.html

  29. B February 20, 2017 1:44 pm

    “Anything that can practically be performed by a human without a machine is abstract and excluded from patent eligibility.”

    Maybe in Canada, but the SCOTUS has never held this. Also seems to run afoul of Enfish and Bandai. That said, the CAFC has done a miserable job in distinguishing what is 101 kosher and what is not.

  30. Gene Quinn February 20, 2017 2:34 pm

    B-

    I would agree with you that SCOTUS has never said that anything a human can do without a machine is abstract and patent ineligible, but the PTAB has absolutely made this explicit ruling. Some judges on the CAFC would also agree, and have in their decisions as well. I think numerous patent examiners agree with that daily.

    The problem with SCOTUS jurisprudence isn’t so much what they said, but how they said it and what they didn’t say. The way they articulated 101 decisions gave those who prefer everything to be patent ineligible all the ammunition they need. This SCOTUS has also refused to acknowledge the truth that software is patent eligible, at least some of it. The Patent Act mentions software repeatedly. Interesting that they have acknowledged that business methods are patent eligible, but haven’t done the same for software.

    -Gene

  31. B February 20, 2017 3:27 pm

    Gene,

    “I would agree with you that SCOTUS has never said that anything a human can do without a machine is abstract and patent ineligible, but the PTAB has absolutely made this explicit ruling. Some judges on the CAFC would also agree, and have in their decisions as well. I think numerous patent examiners agree with that daily.”

    Everything done in DDR, Enfish and Bandai could be done by a human. Certainly, various APJs might think differently, but to date the PTAB is, for lack of a better description, absolutely incompetent when it comes to Alice/Mayo/101. I’m presently in an RFR/RFR en banc at the PTAB demanding both that the claims be addressed as a whole under both part 1 and part 2 (Bandai) and demanding substantial evidence (APA 706) from our favorite Art Unit, 3689. I’ll let you know how that goes. I suspect that I’ll lose and there will be a trip to the CAFC.

  32. B February 20, 2017 3:39 pm

    Gene,

    “This SCOTUS has also refused to acknowledge the truth that software is patent eligible, at least some of it.”

    That is the way of the SCOTUS. Create chaos and rely on the CAFC to makes sense of it. In Alice Corp. there was evidence that the ordered limitations of the claims were all well-known, routine and conventional. Unfortunately, the CAFC departed from the evidentiary requirement in Amdocs as has the PTO with Bahr’s absurd idea of just needing to compare a set of claims against claims of previous decisions. It amounts to a misapplication of collateral estoppel. Another thing that irritates me is the CAFC’s requirement(?) that a claimed device/method solve a particular problem. Most claims do address one problem or another.

    Last, the CAFC may or may not address the claims as a whole – contrast Electric Power Group and Bandai, and they don’t consider the APA particularly relevant.

  33. step back February 20, 2017 3:53 pm

    @31 B wrote “Everything done in DDR, Enfish and Bandai could be done by a human.

    No.

    It cannot.
    The human body is not a digital electronic machine.
    The human brain does not operate just like a computer.

    To assert that is to engage in Medieval, unscientific dribble.

    https://aeon.co/essays/your-brain-does-not-process-information-and-it-is-not-a-computer

    (Hat tip to Gregg Ahronian for locating above link.)

  34. step back February 20, 2017 3:57 pm

    @30 Gene:

    SCOTUS has never said …“?

    Please re-read Justice Breyer’s diatribe in the Alice orals about King Tut’s abacus man. Solvency. Don’t you get it man? Solvency! A fundamental abstract activity.

  35. B February 20, 2017 4:05 pm

    “It cannot. The human body is not a digital electronic machine. The human brain does not operate just like a computer.”

    Respectfully, you’re missing the point and going back to the Bilski Machine or Transformation days. Take out the computer, and a man could in theory do the same computing steps. The CAFC has unfortunately gone too far with Electric Power Group, which requires real-time analysis of signals across an electric power grid.

  36. Gene Quinn February 20, 2017 4:23 pm

    B, Step,

    We are all on the same team here it seems.

    I agree with both of you. There is no honest way for a human to do the computations that ignorant judges say can be done with pen in paper, not at least in any relevant time frame (perhaps not even in any single life span). But in the view of many the fact that a human could do it if they lived forever and had unlimited mental capacity (and forests of paper for their pens) means that man can do it therefore it is not an invention. Truly ignorant I know, but that is the view point of some judges, perhaps too many examiners and an alarming number of PTAB judges (it seems).

    Someone, if the invention were a missile defense system that incorporated software to calculate the intercept for a nuclear missile shot at a major American city I think those who think man can do this stuff with pencil and paper would soon understand that they are wrong. Of course, it would take an entire city to be erased for them to realize that the fact that it could be done in theory with unlimited time isn’t particularly useful in almost every context imaginable.

    -Gene

  37. step back February 20, 2017 7:01 pm

    @35 B writes, “a man could in theory do the same

    And under another “theory” pigs can fly and lipstick on their lips turns them all into Miss Universe.

    However judges are supposed to live in a reality based world and not in a delusional Medieval mindset world.

    As Gene sarcastically notes @36, yeah that might be true if men lived forever and time and accuracy were not of the essence and you can go back and correct all your ‘slip of the mind’ mistakes and start all over again on your infinitely long roll of toilet paper and with aid of your never runs-out set of pencils and erasers.

    But then again, that ICBM payload hurtling toward your local town never heard about that post-Bilski “theory”.

  38. B February 20, 2017 7:13 pm

    “And under another “theory” pigs can fly and lipstick on their lips turns them all into Miss Universe.”

    Hey, thank the CAFC and the SCOTUS. I think Mayo is idiotic and lawless, and Alice should have been decided under 103.

  39. Eric February 20, 2017 7:56 pm

    #37 step back (and a few others sprinkled in), if your position requires the reversal of multiple cases of Supreme Court precedent in order to become a valid position, perhaps your position just plain isn’t valid.

  40. angry dude February 20, 2017 8:28 pm

    Eric @39

    “..requires the reversal of multiple cases of Supreme Court precedent…”

    I’ not a lawyer but me thinks that scotus and cafc screwed up patent law to the extent that the is effectively no law at present…
    And they are not even supposed to mess with laws and especially with the US Constitution – its congress’s job btw

    Like I said before “The doc said ‘to the morgue’, to the morgue it is!”
    pretty sad…

  41. Gene February 24, 2017 1:19 pm

    “Executing this formula in your mind or on a computer does not generate a voltage.”

    writing a claim for a non-abstract invention does not automatically make the claim non-abstract. no court has ever invalidated a non-abstract specification.

  42. B February 24, 2017 1:39 pm

    “I’ not a lawyer but me thinks that scotus and cafc screwed up patent law to the extent that the is effectively no law at present…”

    The SCOTUS often makes great big decisions and leaves the lower courts to iron out the details. In the present case, the SCOTUS even warned about not abusing the Alice/Mayo decisions such that their judicial exceptions didn’t swallow all of patent law. The CAFC, unfortunately, has gone the way of the Ninth and Fourth Circuits (i.e., batskeit nuts) and cannot follow simple directions or statutes.

  43. Anon February 24, 2017 7:44 pm

    Gene @ 42,

    Please do not litter the comments section with such meaninglessness. Specifications are not invalidated under any circumstance.

    B @ 43,

    That “warning” was a farce, given that the Supreme Court themselves, made claims to actual machines (as notably stipulated to by BOTH sides of the issue before them) disappear into being “abstract.”

    There is no – nor should there be – letting the Supreme Court off the hook for what they have done.

  44. Gene Quinn February 24, 2017 8:01 pm

    Gene @42-

    As Anon @44 points out, it is impossible to invalid at specification. So yes, you are correct when you say “no court has ever invalidated a non-abstract specification.” But rather than sounding learned that statement makes you sound completely unfamiliar with patent law. Only claims can be invalidated. Specifications are NEVER reviewed for validity or invalidity.

  45. Eric February 25, 2017 2:49 pm

    The sky is not falling, as some suggest. If they feel otherwise, perhaps they or their attorneys are not writing detailed specifications and appropriately scoped claims. USPTO allowance rates are steadily above 50% and have ticked up to near 70% lately.

    http://patentlyo.com/patent/2016/11/uspto-allowance-rate-2.html

  46. Anon March 3, 2017 6:47 am

    Eric,

    That misses the point. Please do not mistake throughput for quality.

    An “easy grant” is simply not what most true innovators want.
    They want a grant that will stand up when being enforced.

    If there is going to be “rubber-stamping,” we could save the innovator community Billions every year by reducing the patent office to a cataloguing system only (with new IT built from the ground up) at a extremely small fraction of the plus billion dollar annual budget that is totally paid by innovators and move to a registration system.