Prelude to SCOTUS Oral Arguments in Alice v. CLS Bank, Part 3

By Gene Quinn
March 30, 2014

Eric Gould Bear

This is the third and final installment of my conversation about software, patents and software patents with expert and inventor Eric Gould Bear. To begin reading our conversation from the beginning please see A Software Conversation with Eric Gould Bear.

BEAR: In Judge Michel’s brief, he writes about not confusing §101 with §102 and §103. I’m also looking at this and thinking that patentability questions regarding “abstract ideas” may, perhaps, be better handled under §112 on specificity grounds.  What do you think about that?

QUINN: I totally agree.  And I think that that was the way that Director Kappos meant it when he was at the Patent Office and the Bilski case came out.  That was what he was urging the examiners to do. Do not to make this a §101 issue but instead get the §112 issue. I think that’s the exact right approach because the real question I think they’re struggling with is whether there is an invention there.  You can’t know whether there is an invention there until you ask what does somebody of skill in the art understand by reading the disclosure.  And what some want to do is make it a §101 question so that they don’t have to do any analysis or heavy lifting.

BEAR: Heaven forbid.

QUINN: I think you need to get to what is described in the specification and ask whether there is enough there to prove that the inventor is in possession, or that the application sufficiently describes the invention that the inventor is in possession of.  Instead, they want to focus on claim techniques and then also at the same time really ignore the claims themselves. What some members of the Federal Circuit said was that the method claims and the computer readable medium claims fall into one category and therefore the system claims, which are clearly tangible, fall into that same category because the system claims are really just trying to claim the same thing as the method and computer readable medium claims.  Of course, the system claims have all kinds of tangible elements in the claims specifically recited. So what these Judges did was determine patent eligibility without ever looking at the claim. Either claims are required and you have to look at them or they shouldn’t be required and then we just look at what’s in the specification. Sadly, it seems those advancing this viewpoint are trying to have the best of both worlds; namely look at the claims when they do not include patent eligible subject matter and ignore the claims when they do include patent eligible subject matter and pretend they are abstract despite having tangible components.

BEAR: It seems backwards to say that a test applied to a method claim should therefore apply to a system claim.  A more stable analysis model might be to go in the other direction.  The claimed system – separate from novelty and non-obviousness – seems to clearly pass the §101 hurdle.  The method claims, however, raise a question of whether they’re clearly to be implemented on a computer.  Do the specification and claim limitations make that intent unmistakable?  Whether they wrote the patent well enough to make such context explicit or inherent in the claims is really a stand-alone question.  But I don’t think it’s a §101 question.

QUINN: I think if you read the method claims some people would really scratch their head and say, you know, where is there anything tangible there?  The problem is that during the oral arguments the attorneys for CLS Bank admitted that there were tangible components recited in the method claims, that certain of the terms in the claims had been defined in the specification, and that the definition made them tangible.  So, from a legal standpoint, that should be all she wrote. You shouldn’t be able to go back and undo that admission.

BEAR: One would hope.

QUINN: Which sadly they seem to have done.  While it is not sexy, I think that admission really answers the entire question associated with the method claims.  If it’s tangible it should be patentable – because that which is tangible can’t be abstract, which seems rather self evident to me really. It strikes me as a particularly intellectually dishonest definition of “abstract” when you argue that something real, tangible, and you can put your hands on is abstract.

BEAR: Well, the other test to look at is whether the method can be performed in the human mind alone – or possibly with paper and pencil.  More importantly, the question is, “Would it be practical to do in a human mind alone, or by a person with paper and pencil?”  And here, the answer should be a resounding, “No, it’s not practical without a computer.”

QUINN: I don’t think it’s possible, either, particularly with the systems claims.  There is mention of a computer.

BEAR: That’s right.  This is a question for method claims not physical apparatus claims.

QUINN: I agree with you completely, and I have written about that.  And I was kind of hoping IBM would make a bigger deal about that.  Because they are in the best position really to make this argument convincingly.  Because if you look at Watson, Watson does 80 trillion calculations per second.

BEAR: It’s amazing.

QUINN: Now there is no amount of lifetimes a single individual could live in which they could do 80 trillion anything.

BEAR: Of course not.

QUINN: And that’s what Watson can do in one second.  So this whole argument that software should be viewed by whether a human could do it using paper and pencil is childish.  Saying that a human could do these things is a misrepresentation of reality.  But yet that logical fallacy works its way into the Federal Circuit decision – software’s not patentable because it merely does what a human could do, just faster.  But that’s what methods have done since the dawn of the patent age.  A method has always been patentable if it does something better, stronger, faster, more reliable, more predictable, and/or in an automated fashion.

BEAR: One would think!  You know, I’ve faced the automation issue in patent prosecution myself and found that adding the word “automatic” was what got claims allowed.

QUINN: I can somewhat see that because then that makes it such that a human couldn’t do it.  But on some level this case really is not even about preemption.  The solicitor’s brief, the government’s brief in this case, admits that even the method claims are not preempting anything. And up until now that really has been the cornerstone of the patent eligibility analysis. We don’t want to give you a patent on something if you’re going to preempt an entire field.

BEAR: Yes, great.  I’m really glad you mentioned that – because that’s another issue that really struck me.  For all three types of §101 exclusions to consider, is the claimed invention going to preempt any use of a law of nature, a phenomenon, or an abstract idea universally?  The ways in which the claimed approach to using escrow is being described by the respondents and their supporters is as if there’s no possibility of a design around.  They talk as if there’s no other way of doing it, and argue that the claims cover the most broad, general ways of handling escrow.  But as I read the claims, there seem to be specific limitations that make the claims narrower than a generic definition of what it means to use an escrow account.

QUINN: Right.

BEAR: And it should be impetus for others to either design around the claims and maintain parity with them, take a license and improve upon it, or design around the claims in ways that are even better.  To me, the claimed invention doesn’t appear to be universally preemptive.

QUINN: I agree.  And that really, I think, should answer the question.  Whether it does or not is a whole other question in and of itself.  But I suppose we’re going to know soon enough.  I just really hope they get this one right.

BEAR: I hope they do, too.

QUINN: I think a lot of people believe they have gotten the several recent biotech cases wrong, in Myriad and in Mayo. This is not to say that the claim in the Mayo case should have been patentable, but it should have been patent eligible under §101 and that’s largely why we’re in this whole mess. The Supreme Court opened Pandora’s Box. They had never done this before and they had always said that you couldn’t and shouldn’t conflate §101 with §102, §103 and §112, yet they did anyway. They don’t even know enough about patent law to really understand the Pandora’s Box they were opening when they were saying that if you have a law of nature and then you add only conventional steps to that law of nature it’s not patent eligible because it’s still a law of nature. Well, the factual and scientific reality is that if you add things to nature and it is not naturally occurring then it is no longer a law of nature. That is, of course, self evident even on a purely logical basis, but the Supreme Court has said some truly bizarre and incorrect things from time to time.

BEAR: Well, if you make use of a law of nature in accomplishing something, that’s just fine.  I mean, every invention has to be a combining of some – if not all – preexisting elements in a new way.  There’s nothing that’s truly new.

QUINN: Right.

BEAR: Everything has to come from somewhere.  In product design, there’s no “immaculate” conception.  Novelty doesn’t live in a vacuum.  That’s why the courts need to look at each claim as a whole.  The sum of the parts is the special sauce.

QUINN: Right.

BEAR: And I guess the last thing to look at is the appropriate relationship between – and this is a loaded question, really – the courts’ and Congress’s roles in making these definitions?

QUINN: Yes. Well, they’re supposed to follow the law unless it’s unconstitutional.  And if they do that then what they will do is they will say that this, all of these claims are patent eligible and that proper analysis comes under §102, §103, and §112, because this is not what §101 is intended to do.  But I really don’t have any belief that they are going to do that or get that right.  I mean, if you look at the Myriad case for example, Justice Thomas who’s writing for an unanimous court comes right out and says that it doesn’t matter how interesting a discovery is, the discovery is not patent eligible.  But if you actually read the statute, what he said is a completely wrong. The statute specifically says discoveries are patent eligible.  So the court makes these sweeping statements that to them seem to make sense to the layperson, but are completely contradictory to the law.

This is hardly shocking though. This comes from the same Court that at one point said a pH of 5 is equivalent to a pH of 6, which is absurd because pH is logarithmic. The Supreme Court also said once upon a time that manganese is equivalent to magnesium.  I mean these are scientifically ridiculous statements.  They’re just not true.  They said in Festo that in order to be entitled to prove infringement under the doctrine of equivalents the patentee has to provably demonstrate they were not in possession of the equivalent at the time they filed the application.  What that means is that the patentee must prove that they didn’t invent. If the patentee proves they did not invent then they are entitled to claim infringement under the doctrine of equivalence. These are just four different cases where the Supreme Court said things that are provably and clearly wrong.  These folks are not infallible, but particularly so when it comes to the intersection of science and patent law.

BEAR: Well, I guess we’ll just see what happens.

QUINN: Yeah, that probably didn’t make you as an inventor feel very good when I was saying all that, huh?

BEAR: What’s new?  The Federal Circuit report was just all over the map.

QUINN: And that in and of itself is the problem, isn’t it?  Software is so interwoven into the fabric of our economy and into innovation and nobody knows whether and to the extent it is patent eligible.

BEAR: It shouldn’t be a question of whether software is patent eligible, though.  It should be a question of how to write claims with sufficient specificity to be allowable.

QUINN: Right. Tell us how you want us to articulate the invention and we’ll give it to you.

BEAR: Exactly!

QUINN: But getting protection on something that is so vital to the economy touches so many different areas of innovation – whether it’s communications satellites, or automobiles, or whether it’s really the type of software that we used to once upon a time buy in a box at the store.

BEAR: Indeed.

QUINN: We can explain it to you.  We just ought to be given the opportunity to know how you want us to explain it so that we don’t have to continually guess.

BEAR: When the Constitution was written, there was no concept of software.  Nor was there computer hardware.  We had physical, you know, very physical mechanical inventions.  And computers have come around and software has come around, and the interpretation of these statutes has had to shift with the technology.  And as unimaginable as it may seem to us here in 2014, there’s something in our future as unimaginable as software was when the Constitution was written.  Inventions in that future domain need to not be shut down because of the way we rule today on §101.  So the request for not having a real hard line – a bright line – is important.  It protects the possibility of fostering future inventions in domains we can’t even imagine.

QUINN: I couldn’t agree more.

BEAR: So let’s end on that note.

QUINN: That sounds good. Thanks, Eric.

BEAR: My pleasure, Gene.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. 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 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 as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of Read more.

Discuss this

There are currently 29 Comments comments.

  1. EG March 31, 2014 9:09 am

    To all:

    Michael Borella at Patent Docs did a good job of tearing apart Feldman’s “Slowing Patent Trolls” article in the NYT: . Frankly, Feldman needs to be exposed for her intellectual dishonesty in this article and obvious disdain for science and technology in general.
    This charlatan shouldn’t be an IP law professor. And as Anon has expressed, I pity the law students who take any patent law (much less IP law) course from her.

  2. patent leather March 31, 2014 1:54 pm

    transcript available here:

  3. Mike Bat March 31, 2014 2:16 pm

    Thank you Gene and Eric for your erudite analysis of the issues presented.
    It seems to me, an Attorney Patentee, that software, in the form of written code, whether typed onto paper or electronically recorded onto an electronic storage device such as a disc, may well not be entitled to patent protection.
    However, a computer is a modern electronic machine which utilizes software in the form of written code, rather than physically tangible mechanical components, to perform socially beneficial solutions.
    Therefore, software code, electronically installed onto a computer as a new component which causes the computer to perform a new function creates a new machine which qualifies it to be regarded as a “machine” under 101.
    The new “machine” is entitled to be granted a patent if it qualifies as a new patentable invention per other the patentability requirements such as the requirements 102, 103 and 112.
    The new “machine”, with all of its components which interact to cause a new function, a new solution is the invention that the inventor seeks to patent – not the singled out software component!
    The new “machine” should be granted a patent if it meets the other requirements for patentability.
    I submit to you that the numerous lengthy briefs submitted tend to obfuscate the issue of patentability of new computer devices, “machines”, designed to move society forward in this modern era in which computer machines are able to electronically perform new socially beneficial functions.
    For example, modern cars have computer modules that monitor the cars speed and cause the transmission to shift to a higher or lower gear depending upon the then current speed.
    Suppose that an inventor created a new computer module with new software that also measured whether the car was going uphill or downhill which then caused a more favorable shift pattern which increased gas mileage by say 10%.
    Would that solution not be a socially beneficial invention entitled to pass muster as a “machine” per 101?
    No inventor would likely invest in the R&D required to create such a solution if the new “machine” was excluded from patent protection by101 because the new solution was implemented by, and could only be implemented by, software rather than a mechanical part to create the socially beneficial solution.
    I submit that if computers with new software solutions are excluded from being granted patents in the U.S., which would also be entitled to patent protection in other countries, that the U.S. will suffer a substantial loss to other countries.
    Hopefully, the Supreme Court will be able to sort through the copious briefs to the basic issue presented and find that inventions utilizing new computer software to create new solutions qualify as 102 “machines”.

  4. step back March 31, 2014 2:18 pm

    PL— Thanks for the link.

    As expected the cluelessness shines from within the thicket of black robed inquisitors:

    Page 5, line 7:
    7 JUSTICE KENNEDY: Well, let me put it this
    8 way. If you describe that to a second year college
    9 class in engineering and said here’s here’s my idea,
    10 now you go home and you program over this weekend, my
    11 guess is my guess is that that would be fairly easy
    12 to program.

    Page 7:
    9 JUSTICE BREYER: So what we have different
    10 here [as the ONLY difference] is the computer stops rather than the abacus man
    11 stopping or my mother stopping or the guy that the grain
    12 elevator has that says stop. So just saying, what is
    13 that it? In other words, if you say, computer stop, you
    14 have an invention. Useful add but if you say, mother
    15 stop, you don’t?

    22 MR. PHILLIPS: But ….
    23 JUSTICE BREYER: And what you do is you take
    24 the idea of solvency and you say apply it. And you say
    25 apply it through the computer.

    Page 9:
    12 JUSTICE SCALIA: Why isn’t it why isn’t
    13 doing it through a computer not enough? I mean, was the
    14 cotton gin not an invention because it just means you’re
    15 doing through a machine what people used to do by hand?
    16 It’s not an invention. It’s the same old, same old.

    Page 12:
    8 JUSTICE KENNEDY: Suppose I thought and,
    9 again, it’s just a thought because I don’t have the
    10 expertise that any computer group of people sitting
    11 around a coffee shop in Silicon Valley could do this
    12 over a weekend. Suppose I thought that.
    13 MR. PHILLIPS: You mean wrote the code?
    14 JUSTICE KENNEDY: Yes, right.

    18 MR. PHILLIPS: But that’s true of almost all
    19 software.
    20 JUSTICE KENNEDY: Then why is the computer
    21 program necessary to make the patent valid?

  5. step back March 31, 2014 2:24 pm

    Page 15:
    23 JUSTICE BREYER: Can you in fact now, …
    Page 16:
    2 … I mean, you know now, the problem
    3 that I came away with is the one that you’re beginning
    4 to discuss, that if you simply say, take an idea that’s
    5 abstract and implement it on a computer, there are
    6 you’re going to get it much faster, you’re going to be
    7 able to do many, many things, and if that’s good enough,
    8 there is a risk that you will take business in the
    9 United States or large segments and instead of having
    10 competition on price, service and better production
    11 methods, we’ll have competition on who has the best
    12 patent lawyer. You see where I’m going on that one?

  6. step back March 31, 2014 2:31 pm

    Page 18:
    15 JUSTICE SCALIA: By the way, we we have
    16 said that you can’t take an abstract idea and then say
    17 use a computer to implement it. But we haven’t said
    18 that you can’t take an abstract idea and then say here
    19 is how you use a computer to implement it
    20 MR. PHILLIPS: Exactly.

  7. step back March 31, 2014 2:37 pm

    Page 21:
    14 JUSTICE BREYER: It was like there’s …
    Page 22:
    21 … but you cannot improve it where it is simply
    22 an improvement in an activity that is engaged in
    23 primarily through mental processes. But what they mean
    24 by that is business, finance, and similar arts.
    25 That’s I mean, …..

  8. patent leather March 31, 2014 2:37 pm

    Gene, did you read this yet? What do you think?

    My opinion is that it does not look good for Alice. The justices seem to be looking for a way to kill this patent without affecting other software patents.

  9. step back March 31, 2014 2:40 pm

    Page 25:
    7 JUSTICE KAGAN: Can I give you a
    8 hypothetical, Mr. Phillips, and you tell me how it’s
    9 different or the same. Let’s say, you know, 30 years
    10 somebody took a look around the world and said, a lot of
    11 people seem to order products by mail. They get the
    12 catalogues in the mail and then they send back their
    13 return forms. And let’s say that one of the founders of
    14 the Internet said, wouldn’t this be an amazing system,
    15 we could actually do this by computer, and they had
    16 patented that. Is that the same?

  10. Gene Quinn March 31, 2014 2:48 pm

    I am going to be reading the transcript momentarily and then posting an article sometime before the close of business today.

    I don’t know how they can kill this patent without killing all software patents given that this is a 101 case and all software patent claims are structured like these are.

  11. patent leather March 31, 2014 4:18 pm

    I don’t mean any disrespect to Carter Phillips, but I think his performance was OK, not great. He didn’t hit the home run he needed to hit. Maybe a patent attorney would have been a better choice.

  12. angry dude March 31, 2014 4:29 pm

    This will make my day

    I would be ROFLMAO if it weren’t so sad

    “The fate of all mankind I see is in the hands of fools”

  13. step back March 31, 2014 4:38 pm

    Patent Leather,

    I don’t think a patent attorney would have helped.
    You are dealing with a totally clueless and uneducatable bunch of black robes.

    In my above copied snippets for the transcript, I tried to pick out those of the exchanges which show a Justice who maybe “gets it” (Scalia?) and those that don’t.

    So in above comment #4, re transcript page 12, we have Justice KENNEDY understanding what the tech nerds do in this way:

    8 JUSTICE KENNEDY: Suppose I thought and,
    9 again, it’s just a thought because I don’t have the
    10 expertise … that any computer group of people sitting
    11 around a coffee shop in Silicon Valley could do this
    12 over a weekend. Suppose I thought that.
    13 MR. PHILLIPS: You mean wrote the code?
    14 JUSTICE KENNEDY: Yes, right.

    Basically Justice Kennedy fails to see the difference between the ordinary artisan and the extraordinary artisan when he says there is a random bunch of nerds sitting around at a Silicon Valley coffee shop.

    And he fails to understand that inventing is not just leisurely sipping your coffee in your Lazy Lounger chair and writing some “code”.

  14. step back March 31, 2014 4:41 pm

    On the other hand, Scalia appears to comprehend a basic fallacy of logic:

    Page 18:
    17 … But we haven’t said
    18 that you can’t take an abstract idea and then say here
    19 is HOW you use a computer to implement it
    20 MR. PHILLIPS: Exactly.

  15. patent leather March 31, 2014 4:48 pm

    SB, in response to your Kennedy quote (#13), my instinctive rebuttal (as a patent attorney) would be to quote 103, “Patentability shall not be negated by the manner in which the invention was made.” it doesn’t matter if a group of kids could code this in a weekend.

    I also wouldn’t bank too much on Scalia. He is the one that thinks that a computer programmed in a certain way is not a new machine, and thus may not qualify under 101.

  16. patent leather March 31, 2014 4:59 pm

    Another thing Phillips did not do is explain WHY Alice’s claims were allowed. The justices seemed insistent that the claimed invention is just “settlement.” During prosecution, there were features which were the basis why the USPTO felt the claims were non-obvious over the prior art. Why wouldn’t Phillips explain this to the Court that the patent coverage isn’t just the age-old “settlement” principle but explain the new, non-obvious features?

  17. EG March 31, 2014 6:03 pm


    From what I’ve scanned so far, Breyer is true to form: pontificating absurd hypotheticals (what I call the “King Tut” invention using an abacus) having nothing to do with the claimed subject matter at issue. Breyer simply repeats and carries on with the same nonsense he’s done at other oral arguments involving patent cases, KSR International being the first such instance with his nonsensical “raccoon invention.”

    In addition, Breyer is also extremely rude to the advocate (Phillips); he won’t even let the advocate (Phillips) respond to the first question he’s asked before moving onto to spew the agenda he wants all on the bench to hear. How would Breyer feel being interrupted this way (no at all and he would likely scorch the advocate for doing so)? I’ve got nothing but loathing for this “philosophy wonk” of a Justice who is intellectually dishonest, hypocritical, as well as continually (and frankly unprofessionally) demeaning what I and other patent attorneys/patent agents try to do for our clients (referring to Breyer’s obviously intended derogatory comment about the “draftsman’s art” in Mayo).

  18. step back March 31, 2014 6:30 pm


    I’m sticking with my earlier prediction that any case involving a TBTF Bank (a.k.a. corporate person which more equal than other animals on the farm) versus a small entity (a.k.a. pejoratively dismissed by use of the T-word) is going to end up with the TBTF (Too Big To Fail) entity winning.

    Most TBTF financial institutions have a stake in seeing to it that computerized financial inventions, if owned by a small guy, are crushed. So that’s the way the majority is going to come down on this (irrespective of what the “facts” are).

    BTW, do you know which Silicon Vally coffee shop those we-can-do-any-idea-you-have-over-the-weekend “coders” hang out at?

    My “idea” was a computer program that correctly predicts stock market prices 2 days ahead of time. 😉

  19. Anon March 31, 2014 7:01 pm

    Saw this on that other blog…

    It’s not two days in real time, but in the ‘abstract’ world of computer time, it may suffice to squeeze out a tidy profit.

    And yes, I am reminded of Michael Bolton’s antics in Office Space (no, not that Michael Bolton).

  20. Dale B. Halling March 31, 2014 7:41 pm


    Thanks for the analysis.

  21. Dale B. Halling March 31, 2014 7:44 pm


    Thanks for that excellent interview. I just have one small bone to pick patents are PROPERTY RIGHTS they are not MONOPOLIES. Blackstone actually analyzes patents and copyrights in his Commentaries and makes this point. A property right can never be monopoly.

  22. step back April 1, 2014 8:13 am


    Thanks to Justice Kennedy’s deep insights on the inventing process, I have another “idea”.

    This idea uses one of those smartphone thingy ma-jings. You know, like the Apple one or the Samsung one.
    It solves a problem that plagues many Americans and our very way of American street life.

    But before I explain my new and useful “idea”, let’s replay Justice Kennedy’s insight as well as Justice Ginsburg’s introduction regarding “ideas” of the subclass, abstract:

    Page 4 of oral arguments transcript:
    5 JUSTICE GINSBURG: Mr. Phillips, on the
    6 abstract idea, you know that the Bilski case held that
    7 hedging qualified as an “abstract idea”. So how is
    8 intermediate settlement [as in Alice, any] less [of an “idea” of the kind,] abstract than hedging?

    Page 5 of oral arguments transcript:
    7 JUSTICE KENNEDY: Well, let me put it this
    8 way. If you describe that to a second year college
    9 class in engineering and said here’s here’s my “idea”,
    10 now you go home and you program over this weekend, my
    11 guess is my guess is that that would be fairly easy
    12 to program

    So here’s “my idea”

    You know how when you’re walking your dog on the street
    and suddenly with hardly a warning it squats and takes a dump?

    Well it’s such a pain to clean up, especially if you’re busy talking or texting via your smartphone.
    My idea is you use your smartphone to take a picture of the dump.
    Then you press the button for a new “app” called Pooh-be-Gone.
    And the dump then just disappears.
    Great “idea” huh?
    And all it will take is a bunch of 2nd year engineering students
    or Silicon Valley coffee shop groupies to do it over a weekend.

    I hope nobody ever had a similar “idea”:
    /end of snark 😉

  23. step back April 1, 2014 8:13 am

    Gene: release from spam jail? Please?

  24. Dale B. Halling April 1, 2014 10:44 am

    The problem is the judges do not define Abstract Idea. Charlatans love this technique of refusing to define terms and then you are hitting a moving target. The Abstract Idea exception should be removed. Any meaningful definition of an Abstract Idea should be resolved by 35 USC 112, as suggested in the interview.

  25. Gene Quinn April 1, 2014 10:44 am


    I agree. I write about patents not being monopolies all the time. I think that part of the interview is where Eric and I got a bit exasperated. It sure doesn’t feel like patents are property rights any more, does it?


  26. step back April 1, 2014 3:52 pm


    Maybe you can do a more in depth expose at your site on Justice Breyer’s erroneous notion that having the “best” patent attorney in town (me of course –kidding) gets one a “monopoly” to replace fierce and open competition in the market place for computer implemented “ideas” of the subclass, abstract.

    I’m having too much fun dealing at my site with the “idea” that one goes to a local Silicon Valley coffee shop to get one’s “abstract” idea converted by a handful of nerds into a computer program over the weekend. 😉


    Page 15:
    23 JUSTICE BREYER: Can you in fact now, …
    Page 16:
    2 … I mean, you know now, the problem
    3 that I came away with is the one that you’re beginning
    4 to discuss, that if you simply say, take an idea that’s
    5 [of the kind,]abstract and implement it on a computer, there are
    6 you’re going to get it much faster, you’re going to be
    7 able to do many, many things, and if that’s good enough,
    8 there is a risk that you will take business in the
    9 United States or large segments [of it by monopoly] and instead of having
    10 competition on price, service and better production
    11 methods, we’ll have competition on who has the best
    12 patent lawyer. You see where I’m going on that one?

  27. Dale B. Halling April 1, 2014 4:10 pm


    I am looking at doing something, but it will be a couple of days and will certainly consider the brilliance of Justice Breyer.

  28. step back April 18, 2014 6:19 am

    CSPAN’s intro to Alice v CLS oral audio recording

  29. step back April 18, 2014 6:23 am

    CSPAN’s audio of the Alice v. CLS orals