Judge Taranto, Meet Judge Taranto

Federal CircuitJudge Jimmie Reyna’s decision in McRO v Bandai is without question one of the best decisions to emerge from the Federal Circuit as it competently addressed key elements of Alice Corp. v. CLS Bank.  Judge Kara Stoll and Judge Richard Taranto, who signed onto this landmark opinion, should also be praised with Judge Reyna.  The McRO decision, among other things, stands for the idea that software is a process under 35 U. S. C. § 101, and that a claim that does naught more than receive data, process data and “apply” the processed data is patent eligible under § 101.  The representative claim of McRO is reproduced below for convenience.

A method for automatically animating lip synchronization and facial expression of three-dimensional characters comprising:
obtaining a first set of rules that define output morph weight set stream as a function of phoneme sequence and time of said phoneme sequence;
obtaining a timed data file of phonemes having a plurality of sub-sequences;
generating an intermediate stream of output morph weight sets and a plurality of transition parameters between two adjacent morph weight sets by evaluating said plurality of sub-sequences against said first set of rules;
generating a final stream of output morph weight sets at a desired frame rate from said intermediate stream of output morph weight sets and said plurality of transition parameters; and
applying said final stream of output morph weight sets to a sequence of animated characters to produce lip synchronization and facial expression control of said animated characters.

Now contrast the above-recited claim to a representative claim in SAP America v. InvestPic opinion re-issued on August 2, 2018 – said opinion authored by Judge Taranto.

A method for calculating, analyzing and displaying investment data comprising the steps of:
(a) selecting a sample space, wherein the sample space includes at least one investment data sample;
(b) generating a distribution function using a re-sampled statistical method and a bias parameter, wherein the bias parameter determines a degree of randomness in a resampling process; and,
(c) generating a plot of the distribution function.

There is no assertion by the Federal Circuit that the InvestPic claim above is anticipated or obvious, and indeed Judge Taranto acknowledges that the InvestPic claims may represent an improvement in the field of market analysis.  “Here, the focus of the claims is . . . the improved mathematical analysis.”  Investpic, slip op. at p. 14.  However, Judge Taranto nonetheless declared that, despite any possible innovation, the Investpic claims “fit into the familiar class of claims that do not ‘focus . . . on [] an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools.’”  Id.  That is, Judge Taranto dismisses the idea that a claimed improvement may be directed to a technology process not related to computer science.  Compare Alice Corp., which correctly observed, inter alia, that the mathematical computer claims “in Diehr were patent eligible because they improved an existing technological process, not because they were implemented on a computer.” Alice Corp., slip op. at p. 13.

To justify the InvestPic decision, Judge Taranto attempts to distinguish the claims in McRO by stating the following:

“Contrary to InvestPic’s contention, the claims here are critically different from those we determined to be patent eligible in McRO . . . . The claims in McRO were directed to the creation of something physical – namely, the display of “lip synchronization and Facial expressions” of animated characters on screens for viewing by human eyes.  The claimed improvement was to how the physical display operated (to produce better quality images)” (internal citations omitted).

Contrary to Judge Taranto’s position, not only does the McRO claim not produce a physical improvement to a display (contrast In re Allapat), but as can be seen above a display is not even recited in the McRO claim.  Judge Taranto’s position is as best an assertion that a physical display somehow works better because of the content displayed is subjectively more appealing.  However, a colorized version of The Maltese Falcon does not improve the intrinsic qualities of a generic display.  Similarly, the intrinsic qualities of a Kindle reader are not improved based on the quality of an author’s style of writing.

[[Advertisement]]

Not only is Taranto’s assertion absurd on its face to any novice student of electrical engineering, but the McRO Appellant/Patentee never asserted any improvement to a display as is evidenced by the Appellant’s briefs and statements during oral argument.

Indeed, it was the Appellant’s position in McRO that the patents at issue “address an improvement to a specific technological process.” Doc 69, p. 37.  “They recite a technological method that enables a computer to do something it could not do before.”  Id.  “Clip 3, illustrates precisely how the method ‘improve[s] an existing technological process.’”  Doc 69, p. 53.

Further, the Appellant’s positions are well-represented within the four-corners of the McRO decision, which makes no mention of an improved display.  “It is the incorporation of the claimed rules, not the use of the computer, that “improved [the] existing technological process” (emphasis added). McRO, slip op. at. p. 24.  “The claim uses the limited rules in a process specifically designed to achieve an improved technological result” (emphasis added). Id. at. p. 27.

A software process was improved in McRO, and Judge Taranto’s attempt to assert that the operation of a physical display is improved is facially absurd.

Also completely missing from Judge Taranto’s opinion is any discussion of how the InvestPic claims differ from the software claims in Aatrix v. Green Shades, and Berkheimer v. HP – other landmark opinions that Judge Taranto signed onto.

Judge Taranto might have filed a dissent in Berkheimer.  Judge Taranto might have filed a dissent in Aatrix as did Judge Reyna to completely change the outcome.  However, for reasons not explained to the gentry, Judge Taranto declined such efforts.

Perhaps there is a coherent argument under the Alice/Mayo framework to credibly distinguish InvestPic from McRO, Berkheimer and Aatrix.  However, the patent community will likely be waiting a long time to hear it.

The Author

Burman York (Bud) Mathis III

Burman York (Bud) Mathis III is a sole-practitioner in the Washington D.C. area with experience in patent drafting and prosecution, opinion writing, due diligence, litigation and appellate work. Mr. Mathis technical expertise and experience is far-ranging. For example, Mr. Mathis’ experience covers a wide variety of highly-technical subject matter that includes wired and wireless communications (including MIMO, 3G, 3GPP/LTE, D2D and 4G technology), analog and digital electronics, image processing, semiconductor devices and processes, solid-state physics, material science, printers and copiers, projectors, cameras, speech recognition and synthesis, xerography, cryptography, control systems, magnetic and optical disc technologies, fiber optics, MEMS technologies, nanosensors, GPS navigation systems, software, computer networking and business methods.

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 35 Comments comments.

  1. Night Writer August 24, 2018 9:27 am

    This is all just witch nonsense. It would be like looking at a machine made of iron and saying well those gears are abstract but not THOSE gears.

    Information processing is a physical process that requires structure. To process information requires time, space, and energy. The entire analysis by the CAFC is that they think that parts of the claims are processed in the ether by angels.

  2. Concerned August 24, 2018 10:12 am

    I agree. It is absurb to think a process has to improve a computer to be patent eligible. For example, a computer attached to a shoebox and the result cures cancer would not be patent eligible with this view.

    The only explanation for such an illogical view is an explanation with an agenda that needs to be hidden.

  3. Anon August 24, 2018 10:35 am

    SIGH.

    stands for the idea that software is a process under 35 U. S. C. § 101,

    Software is NOT a process.
    The execution of software is a process.
    Innovation that may take the form of software may ALSO take the form of a process.

    It does NOT help to be glib on this point. FAR too many “anti-software patent” people use the “software is a process” MISTAKE as their launching point.

    As professionals, we need to take that launching point away. Yes, I am well aware that it is simply easier to talk about innovation that happens to be able to be portrayed with software in action terms, and I am fully aware that the “ware” in software is patent-equivalent to the other “wares” (hardware and firmware) – but please remember that not all of us are treating these items with inte11ectual honesty.

  4. Night Writer August 24, 2018 10:59 am

    The key to unraveling this is structure. Taranto acts as if there is no structural difference between the prior art and the claims in InvestPic. Taranto argues that there can be new functionality without structure.

    Any person skilled in the art of computer science knows that software solutions is equivalent to hardware solutions.

  5. Anon August 24, 2018 12:18 pm

    Taranto argues that there can be new functionality without structure.

    This is precisely why the proper patent doctrine to invoke with this reasoning is Inherency.

    Any assertion that the “old” structure – with no change – can “all of sudden” have a new capability would need to establish that this was in fact a capability PRESENT all along.

    Of course, the fallacy being pursued here has also been exemplified in a number of manners over the years. For example, discussions of the “House/Morse” fallacy come to mind, as well as the old thought experiment labelled the Grand Hall experiment.

    It is indeed “equivalent” to “magic” or “witchcraft” to suppose that with no changes whatsoever, a machine can “all of a sudden” turn a mere capability of change into a done-deal and have the capability “already in there.” IF in fact “already in there,” than Inherency is what is being used.

  6. Software Inventor August 24, 2018 12:39 pm

    Sad

  7. B August 24, 2018 2:12 pm

    @anon “Software is NOT a process. The execution of software is a process.”

    I don’t disagree. I’m merely using the wording in Benson and subsequent courts, and assert that the “execution of software” is implicit in the courts’ holdings.

    That said, would your definition read out an In re Beauregard claim given you’re technically claiming a machine?

  8. Night Writer August 24, 2018 2:30 pm

    The way to quantify or articulate this is as follows. Machine 1 perform functions X. Machine 2 performs functions improved X. Taranto’s argument is that there is no new structure in Machine 2 and yet somehow it manages to perform functions improved X.

    Not possible unless you go to the ethereal form of information and the spirit world where the cognition of your mind occur. (And yes Taranto makes these arguments about spirit worlds and information have an ethereal form.)

  9. B August 24, 2018 3:00 pm

    @ Concerned “The only explanation for such an illogical view is an explanation with an agenda that needs to be hidden.”

    These various cases cannot be reconciled. Also, one needs to pay attention to the fact that the CAFC does not always address the system claims when addressing a 101 rejection.

    For example, Electric Power Group and Investpic both asserted system claims that cannot be read on a human mind performing the various steps, but these claims aren’t addressed in either opinion. McRO has similar system claims.

    My point: the method and system claims need to be addressed separately – and you risk your client’s IP if the method claims can read on on a human mind performing mental steps.

    FYI, your IP att’y did a great job in claiming imo.

    One additional comment: the CAFC appears to be responsive to amicii curae briefs. For example, BSA, the Software Alliance, filed on on behalf of McRO but not one for Investpic. This is no indication that the BSA is somehow nefarious, but that they can have a substantial influence on the outcome of a case.

    ———————————-

    @ Anon and Night Writer

    FWIW, there is a great likelihood that Investpic will file for a rehearing en banc at the CAFC. Consider filing an amicus brief.

  10. B August 24, 2018 3:07 pm

    @ Night Writer “Taranto’s argument is that there is no new structure in Machine 2 and yet somehow it manages to perform functions improved X.”

    Absolutely. Software changes the configuration of a computer. Also, from a statutory standpoint do NOT forget that 35 USC s100 defines a “process” as including “a new use of a known . . . machine.” Accordingly, software processes fall within the definition adopted by Congress in 1952.

  11. Anon August 24, 2018 3:30 pm

    B,

    I do believe – at heart – we agree on much of this. My caution though is the fact that many will purposefully obfuscate with ANY looseness between software (a manufacture, and machine or system component) and a process (which may involve the execution of software along with other machine components in a system).

  12. Paul Cole August 24, 2018 4:32 pm

    Would someone tell me on what basis a method for calculating, analyzing and displaying investment data falls within the useful arts. What is transformative about the claim? What new result is it likely to achieve? What was the underlying discovery?

    Those who know me will recall the pro-patent effort I have put in over the last five years. But not this case.

  13. Anon August 24, 2018 7:26 pm

    Mr. Cole,

    You do put in some “pro-patent” effort, but your 101 views are lacking and hew too closely to a Euro-centric model.

    Put plainly: business methods fall within the Useful Arts.

  14. B August 25, 2018 12:27 am

    @ Anon “Put plainly: business methods fall within the Useful Arts.”

    Bilski says exactly this, but replace “arts” with “processes”

  15. B August 25, 2018 12:43 am

    @ Anon “I do believe – at heart – we agree on much of this.”

    Most respectfully, I’ve been trying to tell you this for weeks. The underlying problem is with the obfuscation created by the SCOTUS and CAFC. I think my next article will not only smooth all differences b/t us, but will have Night Writer pounding the table screaming “Yeah – void for vagueness, baby!!!”

    We all want this s101 insanity to end. The solution is to recognize where the insanity began.

  16. concerned August 25, 2018 1:16 am

    B @9:

    Thank you for the observations.

    Our appeal approach will be that the in-place rules are not being followed at various (if any) levels.

    An additional argument will be my claims cannot be read on the human’s mind as evidenced by the fact that the professionals and experts have failed to solve this problem since the inception of the federal program in 1956.

    There seems to be an insistence by people in authority to compare putting a computer on problems already solved versus putting a computer on a problem that skilled artisans have failed to solve. I think the insistence is deliberate, political and serve-serving to those parties that are anointed.

    Frankly, I do not trust the appeal process. Conversely, I would bet the house that a jury of my peers would find in favor of my arguments.

  17. Night Writer August 25, 2018 8:34 am

    Paul Cole >>>Would someone tell me on what basis a method for calculating, analyzing and displaying investment data falls within the useful arts. What is transformative about the claim? What new result is it likely to achieve? What was the underlying discovery?

    Information processing is a physical process. It takes time, energy, and space to process information. Information processing is what we hold so dear about ourselves over animals. Information processing is why some people are paid so much and other not.

    So why do you think that information processing is not a transformation or useful? It is counter to physics and counter to all that science knows about information processing.

    Consider just a simple problem of adding 2 + 2. That cannot be done without time, energy, and space.

    The only thing I can say is that it appears to me that the people that take the position you do believe that you have a mind where information processing is performed in a spirit world. That appears to be the common thread with people like Stevens, Ginsburg, Taranto, etc.

  18. B August 25, 2018 10:36 am

    @Paul Cole “Would someone tell me on what basis a method for calculating, analyzing and displaying investment data falls within the useful arts.”

    It’s considered a “process” under s101. “Unless otherwise defined, ‘words will be interpreted as taking their ordinary, contemporary, common meaning.’” — Bilski, Diehr. Also, Bilski said that a process does not need to be transformative or tied to a particular machine. Bilski was intended to widen the scope of patentability. Business methods were held to be patentable – just not really old business methods like Bilski’s.

    I keep telling people this: The bigger problem isn’t the SCOTUS – it’s the CAFC. Sure – the SCOTUS’ Mayo decision let loose an ancient and unlawful evil. However, instead of narrowly construing the evil, the CAFC sacrificed everyone’s patent portfolios to it.

  19. Anon August 25, 2018 11:37 am

    B,

    I do not – and cannot – hold the Supreme Court and the CAFC in the same relative positions of culpability.

    The Supreme Court has browbeaten the CAFC into senselessness. Much like the philosophical thought experiment of training simians in a cage with a firehose (dousing the simians whenever one of the group dares to climb a step ladder in the middle of the cage to reach for bananas suspended from the ceiling).

    No.

    What we have seen in the realm of 101 has been a back and forth between the Supreme Court and Congress, with the CAFC dragged in as a weak proxy for Congress.

    The Supreme Court disregarded the intended lesson from 1952.

    Congress needs to wake up, see the historical battle for what it has been, reclaim its Constitutional authority, and prevent the usurpation of that authority (again) by using the Constitutional granted power of jurisdiction stripping by stripping the Supreme Court of the (non-original) jurisdiction of patent appeals.

    As long as Congress sets up a sufficient (read that as new and non-brow-beaten) Article III Court for review (to honor Marbury), the Supremes and THEIR penchant for twisting the nose of wax and legislating from the bench can be quashed.

    Additionally, what would help this effort is that undue fealty to the Supreme Court be ended by those of us attorneys who have a duty to NOT place the Court above the Constitution, reflecting that even the Supreme Court was never intended to be Supreme (in that manner).

    The Supreme Court has become disassociated with its own limitations, and Congress too divided (and bought – thank you Citizen’s United) to reign in the wayward branch.

  20. B August 25, 2018 12:04 pm

    @ concerned “Our appeal approach will be that the in-place rules are not being followed at various (if any) levels.”

    Focus your arguments NOW as if you intend to appeal to the CAFC. Focus on s706 of the APA.

    No evidence and they aren’t following the law. Plus – 99% chance the PTAB will do some prejudicial act without giving you an opportunity to address it. The PTAB will, at the end of the day, cite Electric Power Group, Investpic and Versata, and say something retarded like “evidence is necessary, but not in this case”

    If the examiner used the words “inventive whatever” in his rejection: (1) demand that he define the term, (2) demand he show where the term is found as a prerequisite to patentability.

    Also – (A) state that the courts and PTO have no authority to place any additional burden on your claims than what is in the statutory patent laws, (B) assert that your claims both pass the Machine or Transformation test AND constitute a “process” as is recognized by Bilski, Berkheimer and Aatrix (C) state that, while computers are old, your claims are directed to a NEW USE FOR AN OLD MACHINE (see s100), (D) assert that it is improper to import facts and fact-based conclusions from other cases as you didn’t lose those cases, and (E) assert your claims’ advantages as a form of specific utility, and that the examiner never addressed the advantages.

    Also, take your claim #1 and bold/italicize every word outside what the examiner said was the abstract idea. This is a showing that the examiner never addressed the claims as a whole.

    You saw the brief I sent you? I may lose on all that, but it’s coming up on FIVE MONTHS since oral argument, and the CAFC hasn’t issued a decision. That’s two months longer than Berkheimer or investpic. They’re either working really hard to screw my clients or working really hard to do the right thing. The CAFC has never reversed an Ex Parte s101 rejection under Alice/Mayo – or even issued anything more than a Rule 36.

    The PTAB will likely screw you, but you have a perfect 101 case to take to the CAFC. When that happens – call me – you’ll have nothing to lose.

  21. concerned August 25, 2018 12:40 pm

    I do not see the USPTO, CAFC or the Supreme Court following their own rules or the laws passed by Congress. I am glad my career was not this field, my condolences to those in it. How frustrating it must be for you!

    I exploited situations where rule of law actually did exist during my 42-year career. I had great success exposing these types of inconsistencies experienced by many of you.

    I wrote an op-ed, and you will easily see my theme regarding lack of rule of law in the field of patent prosecution. I sincerely hope I never have to return to this patent world under the current state of affairs.

  22. B August 25, 2018 12:42 pm

    The Supreme Court has browbeaten the CAFC into senselessness.

    It’s more my impression that the CAFC misreads Alice/Mayo. They broadly construe the exclusionary principle, disregard the need for evidence whenever it suits them and ignore the requirement to address the claims as a whole.

    Then again, the SCOTUS constantly misrepresents its own s101 case law, and I’m sure either of us can point to several instances where the SCOTUS’ rules contradict one another.

    The Supreme Court disregarded the intended lesson from 1952.

    Hahahaha – that they did – bigly

  23. concerned August 25, 2018 7:12 pm

    B @ 20:

    I will forward all your comments to my attorney.

    Did not get your brief. What is your email? Thank you for your assistance!

  24. B August 25, 2018 8:45 pm

    @ concerned

    My professional email is bud.mathis@crossroads.legal

  25. concerned August 26, 2018 6:04 am

    B: Email sent. Thank you for your generous guidance!

  26. Pro Say August 26, 2018 5:22 pm

    Everyone.

    Though perfectly legal, given how badly (and unfairly) they’ve been attacked and treated, stop using method claims.

    Use process claims instead:

    “§ 101. Inventions patentable. Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

  27. Pro Say August 26, 2018 5:50 pm

    B — like concerned at 25 — thank you!

    Everyone needs to keep a copy of your above guidance; and your brief.

    If possible, is there a link to your brief(s)? Or perhaps the CAFC case #?

    … and I’ll add a suggestion. Especially since there are no word / page limits at the PTAB level, use each and every arg you can. Strongest first.

    Surprisingly, the large majority of ex parte / CAFC briefs I’ve read over the years don’t include all the args they could have.

    In this day and age; and especially with s101; you just don’t know which of your args may win the day.

    So make ’em all.

    Yes; don’t so will cost you more money; maybe a lot more money.

    But isn’t your patent worth it?

  28. Jianqing Wu August 26, 2018 7:39 pm

    I predict that courts can never do right in the Alice issue. They need to rethink how they created the mess and what have been wrong in their approach.

    I believe that the patent law originally barred mathematical algorithms, mental steps, and abstract concepts, etc. In the old time, judges could not see technologies as we could now. Long before computer art was known, mathematical algorithms meant things like Y=aX+b, mental steps meant the actual thinking process inside the human brain, and abstract concepts meant things that could not be accurately defined. Those things were indefinite.

    After computer technologies arrived, courts extended those doctrines to the computer art. From many decisions, I can see that judges keep thinking that processes defined by those doctrines can be accurately identified in computer art. If abstract things are incapable of being defined, how can courts find their boundaries in conducting 101 analysis?

  29. Night Writer August 26, 2018 10:39 pm

    @28 Jianqing Wu

    I could not agree more with you. I would add to this, though, that a lot of the judges don’t understand computer or thinking. Many of them believe that information exists in an ethereal form and that they have a mind that processes information in the spirit. Just search for ethereal form in CAFC decisions.

    They also don’t understand that information processing is a physical process–necessarily. That to process information it require time, energy, and space. Plus I would add a machine with structure. Many of the judges have this notion that a machine can perform new functions without new structure.

    If you look at the education of many of the judges it is easy to see why they are so ignorant. Most of them were educated long ago before modern cognitive science and before theoretical computer science.

  30. B August 27, 2018 1:49 am

    @ Night Writer “Many of them believe that information exists in an ethereal form and that they have a mind that processes information in the spirit. Just search for ethereal form in CAFC decisions.”

    Respectfully, there are a lot of different views as to the “mental steps” doctrine. Some are pretty silly. Justice Stevens takes the cake. Judge Taranto is almost as bad (depending on the day). They believe that anything a computer can do constitutes a mental step.

    Some CAFC judges want to see a few formalities, such as a claim written such that it cannot read on a human mind performing a process, and some don’t even need to see that.

    As of today, I would always recommend citing some form of machinery when making a s/w claim. Note that the SCOTUS declared in Bilski that the definition of “process” doesn’t require a machine or transformation. and in that sense broaden patent eligibility.

    The lunkheads at the PTO, however, are so effing stupid that they got it wrong on their patent-eligibility flowchart.

  31. B August 27, 2018 2:09 am

    @ Pro Say “Everyone needs to keep a copy of your above guidance; and your brief.”

    It’s only valuable if I win this ongoing case. Otherwise, I’m just the latest loser in a five-year string of losers. Five freaking months since oral argument! Oy!!! I’ll figure out something soon to put a lot of the best briefs on-line. I’m also considering forming a not-for-profit organization that will provide aid to inventors and small businesses in the form of a stream of amicus briefs and lobbying on the Hill and to the USPTO. Maybe fixed-fee appeals to the CAFC. Something akin to the BSA (The Software Alliance) but not controlled by the fortune 100.

    Just FYI, JCD is (to my knowledge) the first person to win a s101 rejection on appeal. Shortly after Berkheimer and my oral argument the Solicitor caved in his case, which was then remanded back to the PTO by mutual consent.

  32. concerned August 27, 2018 4:52 am

    My appeal (in the process with the PTAB) should test the Berkheimer evidence view. 2 university studies and documents from every one of my competitors/end users reflecting both the problem my solution solves and that nobody uses my process. What are the odds of being lucky enough to secure this level of evidence? And yet it was rejection after rejection at the USPTO?

    As I go up the appeals food chain, this “Poster Child” case gets wider and wider attention. I could throw a bunch of crap against the wall and see what sticks, however, I just got to know. The litmus test gauntlet will be thrown down: Does evidence really matter or is all this dog and pony show really the patent killing fields for the anointed?

  33. Jianqing Wu August 27, 2018 8:49 am

    @29 Night Writer

    I fully agreed with you. Virtually all problems can be attributed to their ignorance.

    Courts are obsessed with the idea that a machine must comprise distinctive features like gears and a box. They do not recognize the structure can reside in hardware at atomic and molecular levels (on a storage media and electronic signals in chips and processors). New discoveries show that even mental processes require structural support in human neurons.

    Why should they deny micro-structures? Inventions residing on micro-structures are MAGNITUDES more important than those residing on macro-structures. Terms like “something physical” and “an improvement in computers as tools” reflects that judges could not see micro-structures. Future technologies are quantum computers, neutron-like technologies, and nanotechnologies…. They are still looking for gears and boxes because their predecessors have done so for centuries.

    In advanced technologies, mathematical algorithms are often where inventiveness resides. If a patent is not to claim pure mathematical algorithms, what is the point to bar such a patent?

    Also, it is a delusion to attempt to use distinctive structural differences between mental steps and non-mental steps to determine patentable computer-driven processes. There is never be a distinctive line for them to find. Their law with an assumption of this line (which does not exist) has turned patent litigation into battles of experts. In most patent cases, winners are decided by parties ability to procure favorable evidence and opinions. I note that false evidence and junk science have become decisive factors in litigation outcomes in all kinds of cases. This line of law, as many others, is responsible for creating the bizarre litigation culture. Such laws have turned patents from assets into liabilities for most incremental inventions.

    They achieved absolute nothing in eliminating indefiniteness in patent claims. They can keep doing it, tormenting patent litigants. Litigating a patent claim at several millions spending is a total failure of their approach.

    In my view, it was a mistake to extend those old doctrines into the computer art in the first place. The courts will NEVER succeed in settling law. They still have not known what is wrong. I personally have long rewarded those attempts as judicial jokes of the worst kind. Several jokes were exposed in this blog, but jokes like this can be found all over their opinions. They need to learn new knowledge, and stop futile attempts that create more judicial conflicts and further reduce invention values.

  34. B August 27, 2018 8:53 am

    @ concerned “My appeal (in the process with the PTAB) should test the Berkheimer evidence view.”

    It should, but likely it won’t. The PTAB are a shameless lot when it comes to 101 rejections. They’ll cite Electric Power Group and/or Investpic even though your claims are quite different. Then they’ll also compare your claims to other claims in a losing case, and call it evidence.

    “Does evidence really matter or is all this dog and pony show really the patent killing fields for the anointed?”

    Depends on who you get in your panel. IBM gets shafted same as everyone else. This is why I keep saying write your PTAB brief as if you’re writing to the CAFC.

  35. Concerned August 27, 2018 12:41 pm

    B: Will do on acting like I will get a fair trial at PTAB before they hang me.
    Appeal will be with CAFC in mind.

    Thank you for tips! Also, I received the test email.

    Thank you once again.