Can I hold on long enough until the madness stops?

By Jeffrey Killian
September 13, 2018

https://depositphotos.com/95584932/stock-photo-padded-cell-and-empty-chair.htmlIf someone told me when starting my career in 1976 that I would discover a process that has been beyond the reach of professionals and experts for over 62 years, I would have laughed.  If the same person also told me that it would be virtually impossible to protect that discovery with a patent in the United States of America, I would have been equally dismayed.  The preceding scenario is exactly what is being experienced by many inventors and me.  I am a common person who caught lightning in a bottle with an invention, only to be frustrated by the patent system in the United States and left wondering can I hold on long enough until the madness stops?

My invention is patent application #14/450,042 and it represents a process that discovers overlooked Social Security Disability Insurance (S.S.D.I.) benefits for adult people with a disability prior to age 22.  Please note that Medicare benefits also become available when eligible for the monthly Social Security Disability Insurance (S.S.D.I.) benefits.  Accordingly, when the Social Security Disability Insurance (S.S.D.I.) benefit is overlooked, so is the Medicare coverage for the person with a disability.

The oversights occur because the eligibility is the working record of the parent of that adult child.  The Social Security Administration cannot simply run the Social Security number of the adult child to successfully determine the Social Security Disability Insurance (S.S.D.I.) benefit.  In addition, the working parent needs to be retired, disabled, or deceased to trigger the benefit for their adult child, and those triggering events cause their own set of problems in the process.

The Social Security Disability Insurance (S.S.D.I.) benefit process is further complicated upon submission of the parent’s own Social Security retirement benefit application, to wit:

  • Unawareness- The retiring working parent fails to name their disabled adult child on the Social Security application. It is beyond the general public’s comprehension that an adult child age 40 could possibly be eligible for Social Security from the parent’s work record.  The child may have never worked and possibly has not been in the parent’s household for over 30 years (institutionalized)
  • Divorce- The working parent divorced both the custodial parent (spouse) and basically divorced the children. The wage earner had no further association with either of them and skips the question regarding adult children
  • Fraud- The working parent intentionally omits the adult child to affect more benefits for other household members. The wage earner’s benefits are never affected but payments to other household members can be reduced up to 50% with additional claimants, hence, the motive to commit fraud and omit the non-household adult child

The professionals at the Social Security Administration, as well as disability attorneys, have been trying to solve the problem of Social Security Disability Insurance (S.S.D.I.) benefit oversights since the inception of the Social Security Disability Insurance program in 1956.  The fact that the solution has eluded trained professionals for decades speaks to the depth of the problem.  The solution is simply not the cross matching of a couple records as over characterized during my patent prosecution.

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Solving the Social Security Disability Insurance (S.S.D.I.) benefit problem ensures that the adult child with a disability gets their rightful benefit as intended by Congress.  The solution also saves both the Federal/State governments substantial Medicaid expense and mitigates overpayments to other household members.  A patent examination needs to be mindful of the consequences revealed by these problems to properly measure the desire to find this solution.  The situation is not just some abstract idea that can be willfully solved by a person’s thought process or the professionals would have easily done the same decades ago.

The person with a disability has less income and less medical treatment choices from these oversights. Those circumstances often lead to lawsuits against the States by the United States Justice Department regarding inappropriate treatment settings, an “unofficial” euphemism for lack of funding caused in part from these oversights.  My State (Ohio) is currently being sued and many other States have entered into an agreement with the Justice Department.

The oversights cause extra Medicaid expense that is absorbed by the Federal and State governments.  The extra expense is substantially more than the rightful payment of the Social Security Disability Insurance and Medicare benefits.

The overpayments to other household members require the Social Security Administration to drastically reduced future benefits and recover perhaps tens of thousands of overpaid dollars representing as little as 3 years of overpayments.  The preceding revelation is quite a shock to people on fixed incomes who made retirement decisions based on erroneous information received from the Social Security Administration that was a by-product of an unintentional oversight.

All the above information was thoroughly explained to the United States Patent and Trademark Office.  Also included in the application process was documentation to support the fact that my invention is novel, non-obvious to skilled people in my profession and represents a whole new approach to solving this oversight problem.  The documents placed into my record are:

  • Independent third-party studies from two accredited universities authored by experts with 25 years and 35 years in the field
  • A Social Security benefit application
  • A Social Security handbook
  • The Medicaid applications from each of the 50 states in our nation

Imagine my shock when the United States Patent and Trademark Office notified me that my application for patent was being rejected on the grounds the process is deemed an abstract idea that is routine, well understood and conventional based on court cases that have nothing to do with my field of technology.  Since none of my patent claims are done by the Social Security Administration or disability attorneys, as proved by the supporting documentation, how can my process be routine, well understood and conventional based on conclusions from other fields of technology?

First and foremost, the United States Patent and Trademark Office regulations are clear that determinations of routine, well understood and conventional are based on my field of technology.  Hard evidence within my field of technology should never be overruled by court cases from other fields of technologies.  All poodles are dogs, but not all dogs are poodles is a good analogy as to why the United States Patent and Trademark Office regulations rightfully emphasize the same field of technology for comparison.

Secondly, the dictionary defines an abstract idea as existing in thought or as an idea but not having a physical or concrete existence.  The abstract idea is the routine benefit processing of the Social Security Disability Insurance (S.S.D.I.) benefit as conceived by Congress.  Correcting oversights made by family members and professionals is not the abstract idea.  Professionals do not go to work with the “alleged” abstract idea of making oversights that cost their employer substantial amounts of money and further cause households financial grief.  Labeling my invention as an abstract idea is not correct, not factual or logical on the surface, professionals do not make mistakes on an intentional or abstract basis.

Thirdly, my patent application was very clear that the discovered process was only addressing the correction of those Social Security Disability Insurance (S.S.D.I.) benefit oversights, not the pre-emption of routine Social Security Disability Insurance (S.S.D.I.) benefit processing per Claim #22, which reads as follows:

The computerized method for determining overlooked eligibility for social security disability insurance (SSDI)/adult child benefits through a computer network in Claim 1, wherein the SSDI adult child benefit eligibility has been overlooked in the parent’s or spouse’s routine social security application process due to inaccurate information, or lack of information during said application process, or the person’s SSDI adult child application was not properly pursued due to parent’s or spouse’s death was overlooked by parties associated with a disabled adult child

My patent examiner refused to acknowledge or address my evidence that was submitted into record proving the process is not routine, well understood or conventional in my field of technology; nor did the patent examiner recognize or acknowledge that the process only addresses the oversights.

I started searching for the real reason why my patent application was rejected since the explanation for rejection did not reconcile with the overwhelming evidence on record and the fact that my process was rectifying a problem in existence since 1956.  It did not take long to discover that the real reason for my rejection is software patents and their anti-patent bias by people of authority, regardless of what is being accomplished by the software process or what the law states verbatim.

This anti-patent bias toward software is illustrated in many ways. The Supreme Court of the United States added the words “abstract” and “significantly more” to 35 U.S. Code § 101 and did not define such terms.  Previously 35 U.S. Code § 101 granted patents in the past and now 35 U.S. Code § 101 has become a provision to deny software patents on a wholesale basis.  The added judicial exceptions were not approved by Congress, the law still reads the same, the added and undefined terms were legislated from the judicial bench.  Something is inherently wrong with this situation from a common person’s viewpoint.

In addition, software patents previously granted are now being squashed via a legal process void of evidence or facts.  The rescinding of patents without fact or evidence got so bad that the Berkheimer appeals court had to remind everyone in 2018 that facts and evidence do matter in a legal setting, an observation a common person like myself would just assume should happen.  Yet, in my patent application, the evidence is still not even acknowledged, addressed or given any weight, equaling a real-life testimony to the Berkheimer court’s point.

Crucial aspects from landmark cases, such as the Alice and Electric Power Group, are not embraced that would help patent software claims.  Both court case decisions stated concrete steps that described a specific way to solve a problem are patentable, unlike situations where a computer was merely used as a tool to perform an existing process.  The fact that my process uses concrete steps to solve a 62-year problem seemed meaningless in my patent prosecution.  It appeared only ways to deny and trivialize my application were important, using bits and pieces from court cases outside my field of technology, which seems like a form of disrespect to the professionals and experts in my field of technology.

Official United States Patent and Trademark Office memorandums from Robert W. Bahr, Deputy Commissioner for Patent Examination Policy were not given consideration in support of my application.  Deputy Commissioner Bahr’s November 2, 2016 memorandum confirmed that  claims describing a specific way to solve a problem are patentable and that evidence/facts do matter per the Berkheimer court (April 19, 2018 memorandum).  These memorandums only seem to serve some kind of “official” purpose in my patent prosecution without any application of their intent.

How bad is the patent situation in the United States?  Is my rejection the rule or the exception?  The answer can be found in the level of evidence to support of my patent application.  How many patent applicants have independent studies from 2 accredited universities to prove their case, not many I suspect?

Going a step further.  How many patent applications have documentation from every one of their competitors or end users proving no one is doing their patent application process, again not many?  I have documents from every State (my competitors/end-users) proving that my invented process was a first ever solution that nobody is doing.

My patent application was rejected with both the 2 university studies and documentation from all my competitors/end users.  If I have no chance to get a patent, neither would other inventors with less evidence.  Software patent applications might as well be declared dead on arrival in this country.  To add insult to injury, then I learn that the preceding level of evidence is the expectation for the patent examiner to have to rebut and reject my application.  No hard evidence was given to support a rejection, a very unequal or no application of law.

Frankly, I compare the on-going patent situation in this country to the subprime mortgage crisis.  The insiders knew what was going on and deep down the insiders knew subprime mortgages could not be sustained.  The subprime mortgage crisis was only addressed when it threatened the entire country and almost brought financial collapse to the United States.

I do not see the current patent situation in this country sustaining itself and it will end poorly if not addressed by Congress.  Obstacles should be removed to assist inventors with solutions to society’s problems, not the converse situation of adding restrictions without the consent of Congress.

Addressing my patent situation individually is not the answer, it would just be a band aid.  Clear and concise direction needs to be given from Congress to ensure a consistent framework to provide incentive to create and invent.  Rule of law needs to be ensured to put all parties on the same page.  Ironically, all this uncertainty in the patent community is not even helping those thinking about running off with my idea.  The potential infringers know this patent situation cannot be sustained and that they might face substantial legal settlements like in the subprime mortgage crisis when the situation corrects, a fair risk/reward analysis.

In the meantime, I can only go up the appeal ladder and hope for a miracle to come in time, which seems to be a grim prospect in the current legal environment.  Many legal scholars and jurists share the view that my appeals are entering the “(patent) killing fields” a coined outcry from a federal judge.

And back to my original question: Can I hold on long enough until the madness stops?

 

Image Source: Deposit Photos

The Author

Jeffrey Killian

Jeffrey Killian is the founder of Automated Benefit Solutions, LLC and has over 42 years of experience in Social Security benefits administration and patent liabilities. He has consulted Governors, Cabinet Members and other policy makers on issues of Social Security, Medicaid and other third-party reimbursements. Although holding several first in the nation accomplishments, Mr. Killian considers his biggest privilege and accomplishment to be both a servant and an advocate for people with disabilities.

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 28 Comments comments. Join the discussion.

  1. Night Writer September 13, 2018 9:06 am

    >> The fact that my process uses concrete steps to solve a 62-year problem seemed meaningless in my patent prosecution. It appeared only ways to deny and trivialize my application were important, using bits and pieces from court cases outside my field of technology, which seems like a form of disrespect to the professionals and experts in my field of technology.

    The reality is that with KSR the examiner can pretty much decide whether any set of claims are patentable based on a sniff test.

  2. step back September 13, 2018 10:50 am

    The madness has only just begun.
    Forget about waiting for a grand finale.

  3. B September 13, 2018 4:06 pm

    Good article, Jeff. I read through your entire file-wrapper. The joke (if it were not so idiotic) is that, despite there is verified evidence that no one ever performed the method of your claims, its asserted that your claim amounts to ‘a fundamental economic practice long prevalent in our system of commerce.’

    Seriously. no 102, no 103, new and useful, but you’re dealing with Alice/Mayo. I’d call the PTO jackasses, but the real problem is the courts.

    —————————

    @ step back “The madness has only just begun.” I’m pretty sure were neck-deep in madness

  4. Night Writer September 13, 2018 9:50 pm

    I see it is 101 not 103. And you are in AU 3691 with an examiner that does not have signature authority. All of that does not bode well for you.

    Make sure to check out all the recent decisions where the 101 rejection has been overcome. It is possible.

  5. Benny September 14, 2018 8:50 am

    What was your plan for monetizing the patent ? It occurs to me that proving infringement migjt be extremely difficult in this case.

  6. Gene September 14, 2018 10:30 am

    “The computerized method for determining overlooked eligibility for social security disability insurance (SSDI)/adult child benefits through a computer network in Claim 1, wherein the SSDI adult child benefit eligibility has been overlooked in the parent’s or spouse’s routine social security application process due to inaccurate information, or lack of information during said application process, or the person’s SSDI adult child application was not properly pursued due to parent’s or spouse’s death was overlooked by parties associated with a disabled adult child.”

    “overlooked”, “eligibility”, “benefits”, “application process”, “inaccurate information”, “lack of information”, “properly pursued” and probably “parties associated” are all abstract.

  7. Babak Nouri September 14, 2018 11:08 am

    I have only been in this field for 3 years as a Patent Agent, but I’ve p r o b a b l y done more reading and thinking about Post-Alice patent eligibility situation than most Patent Attorneys. Speaking from the sum total of my experience, my take is that your chances of securing a patent for your invention are very small.

    Unfortunately, the starting point for Patent Eligibility (101) of a process/method in the post-Alice landscape is NOT conceptual novelty or Utility or how much it can transform the world for the better. The starting point is the Technical nature of the invention. Once, it has been established that the invention is of a Technical nature , only then other factors such as novelty and/or utility may be considered. USPTO does not consider Social Security Administration or any type of Administrative process as a field of technology (it will be lumped either under fundamental economic practice, a mental process or a way of organizing human activity) Therefore, unless you can demonstrate the technical nature of your invention, arguing for novelty and utility is a waste of time, because it will not make any difference.

    So, from the perspective of USPTO and the Courts, your invention is simply not patent eligible because, although it may solve a long-standing problem and improve quality of life for a portion of the population, it does not, solve a Technical Problem or advance Science and Technology in any obvious way.

    But if you can show that it does, than you can easily patent those aspects of it.

    However, If your invention solves a problem that people care about, you can still market it and hopefully make a lot of money from it – But it simply does not constitute what is these days considered as a Patent-Eligible Subject-Matter.

  8. Gene Quinn September 14, 2018 11:35 am

    Babak-

    I don’t dispute your characterization, but let us pause for a moment and reflect on just how tragic it is that one can write: “although it may solve a long-standing problem and improve quality of life…” it is not patent eligible. That is where we are, and it is utterly disgusting.

    Would the Wright Brothers patent on a flying machine be patent eligible today? What they really invented was the idea that when you warp the wings of a flying machine you can control flight. But they observed that was how birds successfully glided and controlled their glide. So what they contributed was really well known, routine and conventional, having been done by birds for millions of years (if not billions of years). And if it would have passed muster under 101, it would certainly be obvious today in light of the observation about birds despite the fact that no one else prior to the Wright Brothers had actually successfully controlled manned flight.

    The state of patent law as written and applied is pathetic. If you apply it literally to the greatest inventions of all time those inventions are arguable either not patent eligible or obvious, which is absurd.

    Thoughts anyone?

  9. Concerned September 14, 2018 11:40 am

    Benny @5:

    Proving infringement is a slam dunk. Everything leaves an electronic footprint via the Social Security Administration. I will know exactly who to check on.

  10. Jianqing Wu September 14, 2018 12:51 pm

    This anti-patent bias toward software is extreme. I have felt a severe impact of the AIA. The AIA affects prior art scope through 102(a)(2) (the secret prior art). 102(a)(2) is intended to prevent granting a patent which has been disclosed. However, the PTO now uses 102(b)(2) references in support of 103 rejections.

    The situation is shown in a hypothetical application here: If you file an application in 2014, the PTO may use all applications filed from 2005 to before 2014 with a publication date of 2016, 2017, 2018 as prior art. The use is in violation of the “at the time of effective filing” requirement. However, it seems to be a fashion practiced by examiners. In addition, examiners can use broadest interpretation. The PTO can move the prior art dates by as many as 10 years (many applications have more than 5 years pending periods) and expand prior art scope by finding claimed elements containing one or two (1-2) similar words. Naturally, some art units just reject any software invention automatically. Alice may be used as a pretext because examiners do not need evidence. The only thing they need is writing a good looking analysis. One will not see real problems until one carefully reads the disclosure. The chances are the rejected claims, as misinterpreted by examiners, are very different from the intended claims that inventors want to patent.

    This is just another madness. I hope I will see articles on two-way distortions of prior art.

  11. Concerned September 14, 2018 2:43 pm

    I have a problem with the fact the USPTO had to disregard their official memos, MPEP, facts and evidence to defeat my application. SCOTUS had to add words to the law.

    If their rules say its patentable, then that fact should trump opinions. Even the patent examiner said my application had patentability in the telephone interview and he said it 3 times.

  12. Ternary September 14, 2018 2:59 pm

    “Can I hold on long enough until the madness stops?” Unfortunately, the answer is no. Clearly, Judges and bureaucrats do not like computer based inventions. They cannot be bothered to argue evidence against claims to support a 102 or 103 rejection. A 101 rejection now clearly is a short-cut rejection that circumvents a reasoned rejection under 102 or 103. With KSR we were suddenly confronted with “common sense” combinations. That was not easy enough, because at least a semblance of argument had to be provided. A 101 rejection is much easier and needs very little argument. This is one tool that will be very hard to be pried from the minds and hands of Examiners and Judges. From their perspective Alice is a wonderful solution to a problem (Benson, Flook, Bilski, etc) that would not go away. Until Alice. They won’t let it go. Count on it.

  13. Anon September 14, 2018 5:01 pm

    There are stop gaps (several bills being floated by IP groups and the like) addressing the 101 issues.

    Long and short of it (as Ternary notes) is that the Supreme Court has (and will again) twist anything by Congress that may end up winding its way to them.

    This is why any long term approach needs to consider prompting Congress to use its Constitutional authority to employ jurisdiction stripping of the non-original jurisdiction of patent appeals away from the Supreme Court.

    As noted previously, this route would include setting up a new (and untainted) Article III court in order to preserve the holding of Marbury.

  14. Curious September 15, 2018 8:23 am

    Don’t take this is legal advice, but I agree with Babak’s assessment that “your chances of securing a patent for your invention are very small.” Just take a look at all of the technically-related patents that have been recently killed at the Federal Circuit. If I were you, I would ask myself, “are my claims any less abstract than the claims that were killed at the Federal Circuit?”

    My opinion (and not legal advice) is that your claims (which I have read) very likely fall on the “more abstract” side of just about any patent that I’ve seen killed at the Federal Circuit. That is not a good place to be.

    Absent the Supreme Court stepping in and saying “oops, we made a big mistake” or Congress intervening with a complete revision of 35 USC 101, I don’t see how your claims will ever get pass 35 USC 101 based upon how the law is being applied. The chances of the Supreme Court changing their collective mind is close to zero. The chances of Congress intervening is a little better, but you have to realize that the likes of Google, Facebook, Microsoft (among others) have their lobbying hooks into a lot of people in Congress, and they are pushing for the opposite. The public awareness of this issue is almost zero, and the other side has the “patent troll” card that they have expertly played to continue to weaken patent rights.

    To be honest, I believe there is a greater chance that Congress will curtail rights of inventors before Congress restores some of the rights of inventors that the Courts have taken away.

  15. concerned September 15, 2018 1:46 pm

    Curious @14:
    I agree with your statement regarding that is how the law is currently applied to patents. The courts have inserted their will over the actual law wrote by Congress and over official memos of the USPTO. And if the courts have the final say, regardless of rule of law or motives, my patent application is in a bad spot in reality, not from a legal standpoint.
    Frankly, the Alice decision supports my patent application: My solution was not long-standing or prevalent in commence. My solution did not exist in pen and paper and it did not exist with computers. SCOTUS would have no evidence to point out it was long standing in commerce, routine, well understood or conventional.
    However, the United States is also in a bad spot in the fall from #1 to #12 on patents in a few short years. That fall was before people realized inventing things that solve society’s problems and/or make life better is a bad experience to pursue. The fall looks to accelerate now that the word is getting out to avoid inventing, you will regret the heartache.
    Exactly what is the purpose of patents if it is not solving society’s problems or make life better? Anyone want to suggest a different purpose for invention and patents? Have we taken our eyes completely off the ball of solving problems and making life better to looking just at legal maneuvering?
    Curious, you suggested that I ask myself “are my claims any less abstract than the claims that were killed at the Federal Circuit?”, a fair question. Would that include asking myself with how the law reads and what Alice/EPG said about concrete steps to solve a problem unlike just applying a generic computer to a known solution? Rhetorical question, I know that you would love to see the madness stop, you are just reflecting the sad state of patent affairs and who is really calling the shots.
    I think a better question would be “What will happen first: I am no longer able to hold on or the country suffers unbearable financial harm?” The subprime crisis took 7 years before the brink of the United States’ financial implosion, the Alice decision is at year 4.
    And sure, SCOTUS will not admit their mistake for attempting to legislate from the bench, they will not need to admit it. Matters of this nature can never be sustained.

  16. B September 16, 2018 1:11 am

    @ anon “Long and short of it (as Ternary notes) is that the Supreme Court has (and will again) twist anything by Congress that may end up winding its way to them.”

    I think only vicious cattle-prodding of the SCOTUS and CAFC is the answer

  17. concerned September 16, 2018 7:42 am

    Babak @7:

    Agree that the “technical” nature is the view of the USPTO and courts and as such that is the reality. I do not find “technical” as a require of law as I am sure you would agree. You are just calling it as you see it. But is more than the technical view going on in the bachground.

    FYI: We argued McRO and ex parte Hafner 2015-002200 and it did not matter at the USPTO. In fact, has the USPTO issued any software patents without a remand back from the courts?

    My solution is rooted in computer technology. The Social Security applications of retirees is submitted electronically in the Social Security Administration’s network of computers. Once the retiree clicks that mouse, the inaccurate, incomplete or fraudulent application sails through with no technical solution on hand.
    McRO allowed the computerization of lip sync that was already performed manually, a computerization of a known manual solution. McRO’s patent stood intact after appeal. My solution goes one step further: The computerization of an unknown process to affect a significant post-solution activity never achieve by the Social Security Administration’s computer network or the computers of disability attorneys. My solution was not known manually or with a computer. My solution is not applying a generic computer to a known solution, it is applying a brand-new network to a brand-new solution and it is rooted in computer technology.

    None of these arguments mattered at the USPTO. MY application was dead on arrival. I must throw the dice on appeal and hope I get a group of judges who follow the logic, the law, official memos and is not part of the Facebook, Google, Microsoft tee times.

    I am confident I will be in front of United States House Representative Steve Stivers who co=sponsor STRONGER Patents Act this spring, important people are making the ask to see me already. I am suggesting to Representative Stiver’s that my application be his poster child. I will also relay Anon’s concerns @13.

  18. LazyCubicleMonkey September 17, 2018 12:59 am

    Oh, where to begin.

    The fact that our government bureaucracy is so vast that it requires an “invention” to navigate.

    Can these 62 steps be done by hand? Or on a general purpose computer?

    As someone who writes software, having patents on software is not necessary to promote the progress of arts & sciences as described by the Copyright Clause. People write software sans any patent benefits – with plenty of novel ideas – just take a look at open source.

    Everyone seems to take it as a given that software patents is a positive thing. Why? From where I’m sitting, it’s unnecessary for the original goal described in the Constitution.

  19. Concerned September 17, 2018 2:53 am

    @18:

    No, the steps cannot be done by hand or a generic computer. One of the 2 universities tried to do the prior art by hand and failed misably. The university’s efforts were discontinued.

    It is the incorporation of my claimed rules, not the use of a computer, that improves the technological process by allowing the automation to occur. McRO.

    First, a process needed to be discovered to filter who the possible oversights could be and correctly identify the oversights from the entire general population that may or may not have children. BASCOM.

    Second, a process to constantly monitor when retirement, disability or death may occur. A disability attorney maximum fee is $6,000 plus some miscellaneous fees. One or two false checks and the profit evaporates. Some people need to be monitored twice a year for 30 years. BASCOM

    Third, caseworkers outside the scope of the government’s direct authority need to be involved. One or two false checks and they tell you to forget it. They are busy people, wearing many hats, come back when you have a positive result. BASCOM

    And if a person is lucky enough to solve the above problems, the cost of the network and administrative support is substantial. Who will invest only to discover a political crony gets to run off with the idea.

    I think the professionals and experts in my field are a lot smarter than me. They are pretty sharp. This invention was not as easy to discover as it looks.

    So were the framers of the constitution, they were pretty sharp. Had to beat the king. They knew human nature. God has thou shall not steal at #8. The framers just put it in the constitution.

  20. Anon September 17, 2018 5:45 am

    LCM,

    The place from where you are sitting is steeped in Slashdot/Techdirt MISconceptions.

    It really is lazy to regurgitate the Kool-Aid that you have quaffed.

    A couple of pointers:

    Software is patent-equivalent to hardware.

    One cannot “just use” software on a machine until first that machine is changed and configured to run that software.

    Patents are not strictly (only) for “but-for” reasoning. Anyone can choose “open source” for ANY type of innovation. But it is simple error to use that ability to choose to then deny the choice to engage in the patent system. For ANY type of innovaton.

    The “Copyright clause” — as you put it — is for BOTH IP laws that protect expression AND utility.

    Patent system is for protecting utility
    Copyright system is for protecting expression

    Different aspects.

    An item — such as software — has more than one aspect and thus earns protection form more than one system for the different aspects.

    Every single one of your views is an non-original anti-patent view that has been debunked time and again.

    Sometimes “Lazy” is good. This is not one of those times.

  21. LazyCubicleMonkey September 17, 2018 7:25 pm

    @Anon

    arstechnica.com – but point taken. That doesn’t mean any of those points are invalid. Just that they’ve been made before. There’s also different audiences involved. It seems that the majority of the people who actually write software (and know software better than lawyers) are against software being patentable, while lawyers (who know the law better than software engineers) are for patenting of software. Funny how that is, no? Perhaps it just people being people and seeing where their paycheck comes from?

    One can just “use software” on a machine. Once an OS is installed, the software binary can run on said machine. So not sure what you mean there.

    And software is protected by copyright already. So why does software need copyright & patent laws? Since you draw an equivalent to hardware, hardware doesn’t have copyright – but I would agree it needs some some sort of IP protection – patents fill this space well. The same cannot be said for software – since utility in it of itself isn’t always patentable – think abstract math. And software is just that – abstract math put into a succinct form that can be run by a computer. Any process done in software can be done by hand – given enough time. And any software can be run (or emulated on) a general purpose computer.

    While I agree that my views are non-original, I have not seen anything that actually debunks it (feel free to link to it).

    I’ve also need seen any reasoning that actually explains why (software) patents are automatically good & desired – which seems to be the view that just about everyone here holds. I really think seeing that reasoning would clarify things (or at the very least make this a more fruitful discussion) – since I don’t think that’s a valid premise to begin with. From where I’m sitting (a software developer), they’re just a drag on productivity.

  22. concerned September 18, 2018 12:36 am

    LCM:
    Personally, I do not think putting software on everything and anything is good and should automatically be patented. I do think solving a problem professionals and experts could not solve is good regardless if software is involved. Alice made that distinction. The generic computer was placed on a known solution, the professionals and experts were not running around trying to solve intermittent settlements.
    People wanted a solution to the problem I addressed. In fact, two the of the previous State Medicaid Directors in Ohio readily admitted to my audience that they tried to solve this problem personally. There were no disclaimers by those State Medicaid Directors such as forget it if your solution uses software, that is the narrative the efficient infringers want to promote. My peer groups are congratulating me on the discovery to include a very well-known national consulting group. I am sure the peer groups would not rescind those congratulations if I whispered software was used, those peer groups care about people and solutions that help society.
    Yet the anti-software crowd intentionally took the extreme view that all software is bad (except the ideas they invented and want patented of course). And that crowd added their own flavor to the Alice decision to discredit everyone else. My invention is allegedly too abstract, or it is not technical enough, or was invented on a Wednesday, or I have brown hair, etc. My patent application was dead on arrival no matter what it solved or what the law says. I really feel cheated, like I was beat by someone dealing off the bottom of the card deck.
    Against all odds, and in a strange way, I am gaining confidence that I just might win on appeal after Mr. Quinn was kind enough to share my story. Nobody questioned my evidence, nobody disputed the Bahr memos, nobody pointed to a law that disqualifies my patent application. Where I come from, the preceding mattered in a legal setting.
    I do realize many posters were just telling me the reality of the situation and what I am up against with the anti-patent bias group.
    I must admit. Whoever coined and marketed the patent troll concept is a genius. That person got everyone to take their eye off the ball that inventions can solve problems and make life better.

  23. LazyCubicleMonkey September 18, 2018 12:57 am

    @concerned

    I have not read the details of your particular patent application (I’m assuming it’s secret until it’s patented, or I just missed the link? If so, my bad.). I still think it’s ridiculous that the bureaucracy is at such a point that it requires “inventions” to navigate. Perhaps – that’s the problem in this particular instance? If a bureaucracy requires 62 distinct steps to navigate through it, perhaps the laws/regulations that force this requirement is the problem? Is this the government our founding fathers envisioned?

    You mentioned the distinctions made by Alice. Does this mean your software has to be run on a specialized computer as opposed to generic hardware?

    If your solution is truly software, then your particular solution would be copyrightable, no? But if I’m understanding correctly, you’re goal is to patent the 62 steps, which just happen to be implemented in software? In the abstract case, one would look at those 62 steps to see if they pass all the required tests to be patentable. But in this particular case, I can’t get over the fact that the necessity for this process in the first place is a man-made beauracracy, and not some limiting forces of nature/physics/etc. I guess legally speaking, there’s nothing to preclude that… But what happens if the laws/regulations regarding social security get tweaked? Does the 62-step process you came up with become moot/void/unnecessary/irrelevant? Would you have to tweak 1 or more steps and attempt to re-patent them all over again?

  24. concerned September 18, 2018 5:18 am

    LCM:
    My process is not 62 steps. My process is a solution that was 62 years in discovery. The SSDI program began in 1956, no one figure out the solution until I got lucky. The professionals and experts tried and tried hard considering what was at stake. It is the Holy Grail of my profession.
    It is a process not rooted in the bowels of bureaucracy. It is a solution that had to overcome unknown factors and the actions of people beyond the supervision of the government. How to overcome consent forms, people and family members who do not even know eligibility of the benefit exists, the cost factor of repeat reviews extending for years, unknown dates of death/retirement or disability and fraud. Someone at the Social Security Administration cannot simply do some checking and solve this problem, it would have been ordered done by supervision if that was the case.
    Suppose the professionals and experts across the nation in your profession were seeking a solution in software programming for 62 years. The person in the next cubicle stands up and shouts “I did it!” Would you think a discovery or invention just happened? Or would you start finding ways to discredit the person thinking everyone the last 62 years had to be incompetent? Or big deal, it is too abstract or not technical enough or was found the day before a holiday when half the staff went home early?
    People ask me constantly if I am afraid someone is going to just steal this idea. One major information technology company is playing a cat and mouse game with me. I thought I was playing by all the rules, and I met those rules. But apparently those laws, memos and any evidence does not count, just opinions on how the invention/solution must look.
    Dorothy came back with the broomstick of the wicked witch of the west, against all odds, and the wizard was just kidding. It was all smoke and mirrors. Her shoes had to be black, not ruby in color.

  25. Anon September 18, 2018 10:42 am

    arstechnica.com – but point taken. That doesn’t mean any of those points are invalid. Just that they’ve been made before.

    The points not only have been made before – so have the counterpoints, of which you continue to choose not to grasp. You do not want to see the rebuttals – and examples of such are even in the post that you make here.

    Please bear with this post – it is indeed long (but could be much longer!)

    Let’s focus on two of your comments and reflect how these two items reinforce my message to you that “Lazy” is not appropriate for our discussions.

    There’s also different audiences involved….” and continuing through “Perhaps it just people being people and seeing where their paycheck comes from?

    This facet has been explored previously, and shows a major misconception on your part (as often reinforced by the “Lemming Effect” as so often is found in following places like ArsTechnica without employing critical thinking). You continue to imbibe in a known anti-patent Kool-Aid environment, and then want to pretend that such an environment provides you some type of “neutral” viewpoint.

    The larger point in regards to your “suggestion” is that your suggestion simply does not wash with reality. Yes, the Lemmings at Ars Technica are anti-patent.

    That is the audience there.

    But to insinuate that no innovations from the programming side (technical) desires patents is a falsehood.
    To imply that “mere lawyers” are the only ones wanting patents is a falsehood.

    As an attorney, I serve clients (tech types) that WANT software patents. Without that want from the tech side, the attorney side would simply shift to others and the wants of others. Secondly, in the sphere of law that is patent law, you DO have the “mere attorney” having a tech background and understanding. It is NOT as you might have it that the programmers are on one side and the attorneys are on the other and each do not know the other side. Instead, when you are dealing with a patent attorney you (OFTEN) will be dealing with someone who NOT ONLY knows the legal side, but knows the tech side as well.

    Fold into the understanding of tech and legal, a larger understanding of innovation itself, and THIS is why you see such fierce passion from patent attorneys who understand BOTH tech and legal and who are driven by a desire to protect innovation (and not the mere paycheck as you imply). Having a foot in both worlds is key. You have shown some interest in the legal world, but clearly, you have no foot in that world.

    Additionally, your immediate comment here of
    And software is protected by copyright already. So why does software need copyright & patent laws?

    Simply ignores the point provided that different forms of IP protection under the law are geared to different aspects being protected.

    Your comment wants some type of “either/or” when that is simply not appropriate.

    There is NO matter of “need” in the sense that you want to impart.

    This is not any type of “fill the space” type of thing, with copyright “taking the place of” patent protection. Each exists for different spaces.

    You show a complete lack of footing in the legal world with such a view. Further, you show a complete lack of understanding of innovation with such a view. Verily, the “Lemming” factor so often seen at places like Ars Technica comes from a “I just want to copy” mindset – and not one that understands what it means to protect innovation. The “just copy” can easily “get around” the expressive parts of software, which is exactly why the utility parts “need” patent protection.

    You do not “see” what is directly in front of you. Closing your eyes to this point (and imbibing without critical thinking at places like Ars Technica), only guarantee that you will only continue to drink the Kool-Aid and be locked into an anti-patent philosophy.

    You then “get” a few technical things wrong. Perhaps you just do not understand the technical context as it fits with the legal context, perhaps you just do not see the technical aspect in view of the larger understanding of innovation.

    First, it is simply not correct to state: “One can just “use software” on a machine. Once an OS is installed, the software binary can run on said machine.” Since the OS is software, and the OS is part and parcel of any other software that will be configured to “run on,” you cannot dissect and dismiss “software” as you attempt. Also, there is a legal concept in patent law called the doctrine of inherency. Your position amounts to saying that ALL (non-OS) software is somehow “already in there,” and that is just not so. You STILL have to load software to “just use the machine,” and the machine sans software simply cannot “run” or “just use” software that has not been configured into the machine by such loading. OS in and of itself is not sufficient. You NEED an additional component.

    Second, you are very confused in regards to “math.”
    since utility in it of itself isn’t always patentable – think abstract math. And software is just that
    Your statement of utility is not legally correct. And your statement of what software is IS not technically correct (you do not have a foot to stand on in either world).
    You have three different concepts regarding math:
    1) math – basic fundamental building blocks
    2) applied math – as the name indicates, this is the application of the fundamental building blocks (and is reflective of ALL engineering) and for which, with the noting of utility within the Useful Arts is the very thing for which the patent system is intended to cover; and
    3) Math(S) – which is a philosophy of math and applied math. Far too often, we have “tech” people confusing themselves in their pursuit of knowledge into thinking that the philosophy somehow removes “applied math” from any “mundane” thing like legal protection.

    Further, the parallel I draw to hardware is from the “ware” meaning. You distract yourself with “hardware cannot earn copyright, and ignore the utility protection and the very equivalence – under patent law – that is the very point of the statement.

    You then slip into more folly that comes from the Ars Technica Kool-Aid:
    abstract math put into a succinct form that can be run by a computer. Any process done in software can be done by hand – given enough time. And any software can be run (or emulated on) a general purpose computer.

    Your view of “abstract math” has no technical or legal bearing, and instead reflects the philosophical notions in Math(S). The actual technical and legal aspect to understand is that software is a manufacture under the hand of man, manufactured for the purpose of utility as a machine component. It is NOT some “existential pondering.” Reality intrudes – as it must – and the fallacy of “if enough time” (aka infinite time) or “if enough space” (infinite loops, or infinite 1’s and 0’s or the like) separate from the “Philosophical” and migrate to the hand of man for utilitarian purposes.

    While I agree that my views are non-original, I have not seen anything that actually debunks it (feel free to link to it).

    No need to link. There is a need for you to apply critical thinking and do more than lap up the dogma from Ars Technica.

    You finish with what appears to be yet another fallacy:

    >I’ve also need seen any reasoning that actually explains why (software) patents are automatically good & desired – which seems to be the view that just about everyone here holds.

    We talk here in larger concepts (as so often is the case with law). This is where your lack of a foot in both worlds impedes your understanding of both worlds. Patents – in and of themselves – are what are “automatically” good and desired. This does NOT mean “patent without regard to the legal requirements.” This DOES mean that ANY – and all – patents that DO meet the legal requirements are – in and of themselves – automatically good for having earned a Quid Pro Quo. “Good” in this sense also does NOT mean (as is often confused) some linear (or non-linear) ADVANCE in a technological sense. Part of understanding the legal notion of patents is to understand that the “promote” meaning in patent law includes not just “tech advance” but also the more “mundane” sense of the word from an advertising sense: ”promotion.” See my analogies to paving a parking lot versus paving a grid of streets.

    since I don’t think that’s a valid premise to begin with.

    Therein lies the problem. It is definitely a “YOU” problem.

    From where I’m sitting (a software developer), they’re just a drag on productivity.

    This too likely comes from the “I just want to copy” mantra. But that is not how innovation works.

    As I have shared with you previously: “Necessity is the mother of invention” and sometimes blocking what you may deem as “productivity” is what SPURS greater innovation.

  26. Night Writer September 18, 2018 11:38 am

    LCM >>> just take a look at open source

    I have advanced degrees in computer science and was a software engineer. First, often, all open source does is copy the commercial software consciously or not. It is very rare for anything novel to come out of open source.

    Second, often, the only reason the software engineers have the job and money is patents. The patents enable the company to stop copiers.

    Etc.

  27. Jianqing Wu September 18, 2018 1:28 pm

    Even if an invention solves a problem of a 1000 years old, it can be obvious in law. Such law must have problem.

  28. Jianqing Wu September 18, 2018 1:34 pm

    Even if an invention solves a problem of a 1000 years old, it can be obvious in law.
    Such law must have problems.

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