Federal Circuit Reverses District Court Finding that ‘Check Data’ Patent is Abstract

By Butch Laker
November 18, 2019

“Importantly, the claims do not simply recite, without more, the mere desired result of catching previously undetectable systematic errors, but rather recite a specific solution for accomplishing that goal.” – Federal Circuit Opinion

https://depositphotos.com/10042948/stock-illustration-red-boxing-glove-conceptual-vector.htmlThe U.S. Court of Appeals for the Federal Circuit (CAFC), in an opinion authored by Judge Chen, on Friday November 15 reversed a ruling of the District Court for the District of Delaware holding Koninklijke KPN N.V.’s (KPN’s) U.S. Patent No. 6,212,662 (the ‘662 patent) ineligible under Section 101. The patent covers a method that varies “check data” to reduce systematic errors in electronic transmissions.

KPN sued Gemalto M2M GMBH (Gemalto) in the district court and Gemalto moved under Rule 12(c) for a judgment on the pleadings, arguing that claims 1-4 of the ‘662 patent were ineligible under 35 U.S.C § 101, which the district court granted. KPN appealed on claims 2-4, stating that they present “a non-abstract improvement in the functionality of an existing technological process and not simply an abstract idea of manipulating data.”

The ‘662 Patent’s Solution

Many data transmission systems generate algorithms to condense transmitted codes into packets called “check data.” Upon receiving the transmission, another packet of check data is created. These two packets of check data allow the receiving system to scan both short-hand versions of the code to ensure there weren’t any errors in transmission. If the check data doesn’t match, then the system can infer whether an error occurred during the transmission of the data.

Occasionally, corrupted data can produce the same check data block as the original, allowing errors to be transmitted without detection. This renders the check data ineffective for that block of code because the receiving system won’t know of the error. According to patent ‘662, “[t]he problem of defective check data is aggravated for a particular type of persistent error, i.e., ‘systematic error,’ that repeats across data blocks in the same way.” Claims 2-4 of the ‘662 patent seek to solve the systematic error problem by adding in a time-based permutation function that occasionally changes the algorithm for writing the check data codes. This function reportedly improves on prior art because it reduces the likelihood of spreading the aforementioned systematic errors. All four claims of the ‘662 patent incorporate independent claim 1:

  1. A device for producing error checking based on original data provided in blocks with each block having plural bits in a particular ordered sequence, comprising:
    a generating device configured to generate check data; and
    a varying device configured to vary original data prior to supplying said original data to the generating device as varied data;
    wherein said varying device includes a permutating device configured to perform a permutation of bit position relative to said particular ordered sequence for at least some of the bits in each of said blocks making up said original data without reordering any blocks of original data.
  1. The device according to claim 1, wherein the varying device is further configured to modify the permutation in time.
  2. The device according to claim 2, wherein the varying is further configured to modify the permutation based on the original data.
  3. The device according to claim 3, wherein the permutating device includes a table in which subsequent permutations are stored.

District Court: It’s Abstract

The district court granted Appellee’s judgment for motion on the pleadings stating that all four claims were ineligible under Section 101. They turned to the two-step analysis provided in Alice Corp. v. CLS Bank and determined that all claims of the ‘662 patent were ineligible because they outlined only an abstract concept and not a tangible improvement on prior art.

At the outset, the district court determined the claims pointed only to the “abstract idea of reordering data and generating additional data” akin to that of  data manipulation claims found in Two-Way Media Ltd. The district court reasoned that the patent’s claims were abstract because they did not provide a specific process for reorganizing, utilizing, or transmitting the new check data.

The district court also concluded that the claims were ineligible under the second step of Alice because KPN failed to outline the inventive concepts in the claims.

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‘Specific Implementation’ Saves the Day

On appeal, the CAFC turned to the patent eligibility test in Alice. In step one of the framework, the CAFC examined precedent set in Finjan, Inc. v. Blue Coat System, Inc. to determine whether the claims of patent ‘662 amount to a patent-eligible software invention or merely an abstract process. The opinion in Finjan asserted that “[a]n improved result, without more stated in the claim, is not enough to confer eligibility to an otherwise abstract idea.” The Court in Finjan found “the claimed method was directed to a ‘non-abstract improvement’ over the prior art because it employed ‘a new kind of file that enable[d] a computer security system to do things it could not do before.’” In the present case, the CAFC similarly concluded that, “by requiring that the permutation applied to original data be modified ‘in time,’ claim 2, which is incorporated into all appealed claims, recites a specific implementation of varying the way check data is generated that improves the ability of prior art error detection systems to detect systematic errors.”

Addressing Appellee’s Arguments

Gemalto argued that the claims were still ineligible because there was not a final claim to actually perform the proposed error detection. The CAFC disagreed, reasoning that the patent did not need to necessarily provide an application for the tool to still be patent-eligible. According to Electric Power Group, LLC v. Alstom S.A., “the focus of the claims [wa]s not on such an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools[.]” The Court continued:

Importantly, the claims do not simply recite, without more, the mere desired result of catching previously undetectable systematic errors, but rather recite a specific solution for accomplishing that goal—i.e., by varying the way check data is generated by modifying the permutation applied to different data blocks.

Gemalto did not dispute that the time-based permutations were a technological improvement, but instead argued that the improvement was not adequately captured in the claims because the claims do not bridge the gap between the permutated data and the newly generated check data. The CAFC disagreed on the grounds that claim 1 describes a “varying device” that varies the original data before sending it to the “generating device” to create check data. For this process to occur, the data needs to be permutated before it can be generated as new check data. “Thus, contrary to Appellees’ proposed reading, claim 1 logically requires that original data be varied by permutation before being supplied to the generating device as ‘varied data’,” wrote the Court.

Even if the claims did reasonably align, Gemalto contended that the claims still were not patent-eligible because no technological benefit is described by performing a permutation on the original data before generating check data. The CAFC insisted that this is firstly unnecessary for patent eligibility, and secondly, satisfied anyway. Specifically, the Court said: “A review of the specification makes clear that modifying the permutation in time provides the technological benefit of preventing non-detection of repetitive errors, just like other variable generating functions.”

Finally, Gemalto said that KPN’s claims were similar to other data manipulation claims, such as those seen in Digitech Image Technologies, LLC v. Electronics for Imaging, Inc. Digitech, however, lacked a specific claim that asserted the improvement in the image processing, said the CAFC. Because the ‘662 patent states the solution in check data generation present in the prior art, the CAFC did not find the opinion of Digitech persuasive.

Rare Reversal

Because the claims surpassed the threshold for an abstract idea presented in the first step of Alice, the CAFC did not proceed to the second step. The Court held that claims 2-4 of the patent were sufficiently descriptive to outline a technological improvement, and accordingly reversed the district court’s decision.

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Copyright: almoond 

The Author

Butch Laker

Butch Laker is a 1L student at UNH Franklin Pierce School of Law. He is also the elected 1L governor for the Patent Law Forum on campus. Before law school, he attended Purdue University, where he majored in Physics. He hopes to combine his passions for science and law as he pursues a career in patent law.

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 37 Comments comments. Join the discussion.

  1. concerned November 18, 2019 10:40 am

    So there appears to be hope for my patent application which clearly corrects errors by professionals, experts and family members using “spelled out” concrete steps. And the preceding is admitted by the USPTO examiner twice in his response.

    The inventive step is not used anywhere on Earth. The application has no 102,103 or 112 issues.

    Yet the examiner is all out to reject the application by all means: Completely omitting part of the claim sentence with the limitation in every response, never addressing the inventive step, claiming an abstract idea cannot have a practical application eight months after the Jan 2019 memo.

    I still have little faith in the patent system even after this decision.

    Man up USPTO.

  2. Anon November 18, 2019 11:03 am

    While this current decision IS precedential, the reasoning in the decision is not strong and does NOT attempt to undue ANY of the Gordian Knot that has already been wound up with the self-conflicting (at all levels of the judicial branch up to and especially including the Supreme Court level) Common Law law writing approach that the judicial branch has taken in the re-writing of the statutory law of 35 USC 101.

    I just cannot get all that excited about this latest “ping” which will no doubt be followed with yet another CAFC panel decision “pong” that makes a mockery of the clear writings of Congress in regards to whether eligibility is met with two (intentionally broad) premises of 1) can the innovation by written — by the applicant — to reflect at least one of the statutory categories; and 2) is the utility of the claimed innovation reflective of the utility in the Useful Arts.

  3. anonymous November 18, 2019 11:44 am

    This is not the first time Chief Judge Stark has been reversed by the Fed Cir on 101. The District of Delaware ought to take this, yet again, as a clear message that too many cases are being dismissed on the pleadings due to an alleged “abstract idea.”

    Congress ought to act immediately to end the confusion surrounding so-called judicial exceptions to 101. Until they do, the District of Delaware must “tread carefully” as the Supreme Court requires. The court should stop granting motions to dismiss on the pleadings and let inventors have their day in court.

  4. Jam November 18, 2019 12:08 pm

    This case could swallow all of patent law by allowing the lowly draftsman to define the “desired result” in the last step of a claim with the intervening steps forming the “specific solution for accomplishing that goal”.

  5. B November 18, 2019 2:55 pm

    Despite Judge Chen coming to the correct decision, this is another GARBAGE HOLDING.

    Why?

    First, the panel admitted that the claims were “a non-abstract improvement in the functionality of an existing technological process and not simply an abstract idea of manipulating data.”

    WTH is a “non-abstract improvement?” What is the difference b/t an abstract improvement and a non-abstract improvement? This is nothing but a total garbage distinction made by third-rate legal minds. While the decision states: “to determine whether the claims here are non-abstract, the more relevant inquiry is “whether the claims in th[is] patent[ ] focus on a specific means or method that improves the relevant technology or are instead directed to a result or effect that itself is the abstract idea and merely invoke processes and machinery.” “In cases involving software innovations, this inquiry often turns on whether the claims focus on ‘the specific asserted improvement in computer capabilities . . . or, instead, on a process that qualifies as an abstract idea for which computers are invoked merely as a tool.’”

    Read the claim limitations:
    “a generating device configured to generate check data”
    “a varying device configured to vary original data.”

    Wow, sounds just like invoking machinery to “generate check data” and “vary original data.” All this is nothing more than the a manipulation of data, and while I think manipulation of data is a “process” under 100(b), the distinctions made by Chen as compared to other Alice/Mayo cases as GARBAGE.

    Vary original data? sounds pretty broad, don’t you think?

    Sounds just like a thousand other claim limitations held abstract.

    Are you reading this, Federal Circuit? You are nothing more than a collection of third-rate legal minds spewing capricious nonsense.

    Also, where’s the “inventive concept?” This issue always goes unaddressed except when there isn’t one.

    @ Anon “While this current decision IS precedential, the reasoning in the decision is not strong . . . .”

    Here, you understate. The decision is intellectually vapid. I get why it was held patent-eligible. I just deny that these claims are any less patent-eligible than those in Chamberlain or 10,000 other claims held patent ineligible.

    BTW, a recent Rule 36 case (In re FOTE) denying patent eligibility had a 736 word claim. VERY DETAILED. Yet listen to the oral hearing. Judge Stoll thinks the claim is overly broad.

  6. B November 18, 2019 3:11 pm

    ‘Specific Implementation’ Saves the Day

    Dear Author.

    You wrote a very good piece here. However, before you trust the CAFC for the time of day, read claim 1 in In re Fote and tell me is specificity is key to patent eligibility.

  7. Curious November 18, 2019 4:35 pm

    Also, where’s the “inventive concept?”
    They found the invention patent eligible at Step 1, which means they don’t have to look at Step 2. Step 2 is where the “inventive concept” analysis comes in.

    The fine line that Chen tries to draw is one that I’ve noticed before: claims directed to a result versus claims directed to an improved way of providing the result. However, one person’s claim to a particular way to achieve a result is another person’s claim to a result, in the abstract. It is a distinction with/without a difference depending upon who is on the panel.

    At this point, the case law is so hopelessly irreconcilable that the only way to know whether your invention is patent eligible or not is to first figure out who your panel is going to be at the Federal Circuit. If the panel consists of two (or more) of Reyna, Hughes, Lourie, Prost, Dyk (of the active, non-senior judges), you might as well not bother with oral arguments. Its not like any of the other judges are “pro-patent” (even the best judges declare claims to be patent-ineligible 80%+ of the time), but at least they might read the briefs, and your claims have a chance at being patent eligible.

  8. Ternary November 18, 2019 4:59 pm

    Nice article, Butch. The CAFC reached the correct decision in this case. However, it is unclear to me how District Courts, the USPTO and more importantly, inventors, can get any guidance from this case.

    It seems completely arbitrary why this is an invention that includes “a software invention that actually improved the functioning of a computer” while in other cases “the computers are invoked merely as a tool.”

    In a sense, the KPN claims are “more abstract” than Benson. Gemalto is correct that there is no actual “detection” claim. And yes, how do you actually determine that bits in certain bit positions are systematically reversed? As best understood, some re-transmission of data is required. If it is a systematic error, re-transmission with the same modification and data does not help, does it? So, an additional step may be required.

    Don’t get me wrong. I like that KPN comes out on top in this battle of patent eligibility. But my feeling is that with any other configuration of Judges, this could have gone the other way. For instance by giving just a sliver more credence to Gemalto arguments. This is not a rational way to run a patent system.

    The invention is directed to a device for detection of (systematic) errors in digital transmission systems. Patent eligible, no ifs and buts. All other reasoning around eligibility of this subject matter is gobbledygook.

  9. Anon November 18, 2019 5:33 pm

    B,

    Your far more strongly worded reply has my concurrence. As you note, I tried “understatement.” And apparently, I achieved a far TOO understated result.

  10. B November 18, 2019 7:22 pm

    @ Curious “They found the invention patent eligible at Step 1, which means they don’t have to look at Step 2. Step 2 is where the “inventive concept” analysis comes in.”

    Golly, and the claims look exactly like performing error detection using a CRC. I’m pretty sure this is abstract – especially since I’ve written code doing just that since 1980. Apparently, to be non-abstract, the claims would need to be measured against the state of the art at the time of the invention.

    No mention of that in Chen’s decision.

    Anyway, compare this decision against the test Chen used in Chamberlain:

    “The appropriate question is not whether the entire claim as a whole was “well-understood, routine [and] conventional” to a skilled artisan (i.e., whether it lacks novelty), but rather, there are two distinct questions: (1) whether each of “the [elements] in the claimed [product] (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field, [and] (2) whether all of the steps “as an ordered combination add[] nothing to the laws of nature that is not already present when the steps are considered separately”

    This idiot test went away proving my premise that no Alice/Mayo holding survives the next case – even when the holding is from the same judge.

    Again – one more meaningless GARBAGE decision.

    “However, one person’s claim to a particular way to achieve a result is another person’s claim to a result, in the abstract. It is a distinction with/without a difference depending upon who is on the panel.”

  11. angry dude November 18, 2019 8:22 pm

    “anything under the sun made by men”

    no more legal mumbo jambo is needed

  12. concerned November 19, 2019 8:30 am

    Curious:

    “The fine line that Chen tries to draw is one that I’ve noticed before: claims directed to a result versus claims directed to an improved way of providing the result.”

    Expanding on your observation:

    It seems the first question Chen and others should ask “Was the result ever achieved beforehand with or without a computer?”

    Also, the behavior of the people involved speaks volumes as to what is afoot. Even though we have repeatedly argued that our result was a first ever accomplishment, with or without computers, the examiner states that a manual process was just computerized. On what planet was this process manually done?

    Just last week I was congratulated once again by a colleague, who is deeply involved with my field at Marshall University, writes/advocates about topics related to my accomplishment and was referred to me for information by a gubernatorial candidate. The process made the candidate’s platform. He also has children with disabilities that my discovery will positively touch. He not only knows the subject matter, he lives it.

    USPTO man up. People are being harmed by this non-sense.

  13. Curious November 19, 2019 9:21 am

    Anyway, compare this decision against the test Chen used in Chamberlain:
    Step one analysis versus step two analysis. That’s the difference.

    Trust me, I’m the last person who is going to hold anybody back on criticizing the mess that the Federal Circuit created after Alice. However, your criticisms lack bite when they don’t appreciate how the Alice/Mayo test is supposed to work.

    For example ….
    This idiot test went away proving my premise that no Alice/Mayo holding survives the next case – even when the holding is from the same judge.
    That “idiot test” is step two of the Alice/Mayo test. Not reached in this decision, and I quote …
    Having decided that all claims on appeal are not directed to an abstract idea at step one of Alice, we need not proceed to a step two analysis.

  14. TFCFM November 19, 2019 9:35 am

    I’ll merely note that the fact that the court appears to have reached the correct outcome (confirming patent eligibility in a situation in which patent applicants actually invented something and disclosed it) does not validate the Alice methodology by which they claim to have arrived at that correct outcome.

    Keep working, Congress.

  15. B November 19, 2019 10:40 am

    @ curious “Step one analysis versus step two analysis. That’s the difference.”

    Respectfully, I think you’re missing my point. Judge Chen lied in Chamberlain while ignoring the limitations that were important to nonobviousness, i.e., the digital format.

    In the present case we have Judge Chen paying attention to each and every limitation in step one, but don’t tell me that performing check sums isn’t old stuff, and don’t tell me that the present claims would survive the test Chen used in Chamberlain.

    Anyway, think on this.

    The Supreme Court said that improvements (i.e., the “inventive concept”) were to be considered in step 2. Enfish defied the SCOTUS and said that improvements may be considered the improvements in step 1. This case, as with Enfish, considers the improvements (i.e., the “inventive concept” (sometimes)) in step 1.

    That is, you’re missing the point that “inventive concept” can be considered at step 1 or step 2. The CAFC’s blurring of the Alice/Mayo test in Enfish isn’t particularly helpful at the end of the day.

  16. B November 19, 2019 10:45 am

    @ curious “Having decided that all claims on appeal are not directed to an abstract idea at step one of Alice, we need not proceed to a step two analysis.”

    Now tell me exactly why the claims in the present case are not “directed to an abstract idea,” but the claims in Chamberlain were.

    I guarantee you that I can pull any distinction you make into tiny pieces using CAFC precedent.

  17. Curious November 19, 2019 2:55 pm

    Step 1: Is it directed to an abstract idea? What that means, who knows for sure. However, if the invention is not directed to an abstract idea, you don’t have to worry about step 2. Enfish says that “some improvements in computer-related technology when appropriately claimed are undoubtedly not abstract.” Enfish then goes on to ask whether the improvement is directed to (i) computer capabilities or (ii) a process that qualifies as an abstract idea. In the most recent decision, Chen wrote that “these claims are directed to an improved check data generating device that enables a data transmission error detection system to detect a specific type of error that prior art systems could not.” Thus, an improvement directed to computer capabilities was found, and therefore, Step 2 was not considered.

    In the present case we have Judge Chen paying attention to each and every limitation in step one, but don’t tell me that performing check sums isn’t old stuff
    Whether it is old or not does not determine whether something is directed to an abstract idea. Look at FN5 of DDR Holdings, which recognizes that most inventions are collections of old things.

    Step 2: are the additional elements directed to an “inventive concept”
    In Enfish, Hughes wrote “the second step of the Alice inquiry, which asks if nevertheless there is some inventive concept in the application of the abstract idea.” Thus the “inventive concept” analysis is part of Step 2. This is what Chen also stated on page 9 of the slip opinion of Chamberlain under the heading of “2. Step Two.”

    That is, you’re missing the point that “inventive concept” can be considered at step 1 or step 2.
    No. Look at Enfish. Look at Chamberlain. They both refer to inventive concept as part of Step 2. A nice collection of 101 cases can be found here: https://www.bitlaw.com/patent/section-101-cases.html. All the cases I’ve looked at describe the “inventive concept” as being part of Step 2.

    You appear to be conflating an improvement with an inventive concept. This is directly from Alice:
    We have described step two of this analysis as a search for an “`inventive concept'” — i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.”
    An inventive concept is part of step two. Moreover, finding an inventive concept isn’t the same as finding an improvement. Rather an inventive concept is “an element or combination of elements” that is significantly more than the alleged abstract idea. Different analysis.

    I understand that the case law is a morass of inconsistent decisions. However, before you criticize the morass (or make arguments to an examiner/court based upon the morass), you need to understand the basic framework with which the Federal Circuit is working.

  18. Anon November 19, 2019 2:57 pm

    The battle here between B and curious should be looked at in a different light:

    One need not even resolve that battle to recognize that the Common Law law writing approach has resulted in law written from the bench that is intractably a Gordian Knot of conflict.

    And this is directly traceable to the Supreme Court (and their OWN Gordian Knots).

    That Gordian Knot must be cut.

    Or, in a different analogy, the score board is broken; and THAT is the larger issue (rather than debating about the score that the scoreboard is providing).

  19. B November 19, 2019 4:23 pm

    @ anon “The battle here between B and curious should be looked at in a different light:”

    I don’t consider this a battle. We’re both on the same side. However, I don’t believe curious has resolved all the conflicting b.s.

    @ curious “In Enfish, Hughes wrote “the second step of the Alice inquiry, which asks if nevertheless there is some inventive . . . “

    Enfish was decided under Step 1. However, Hughes changed the test by considering the improvement under step 1. See pp. 10-11 of the slip opinion.

    “Whether it is old or not does not determine whether something is directed to an abstract idea. Look at FN5 of DDR Holdings, which recognizes that most inventions are collections of old things“

    DDR holdings is a Newman decision and dead at the CAFC. Don’t try to assume the Alice/Mayo test is workable based on one sane opinion. DDR holdings is the rare, sane exception.

    FYI Judge Hughes was apparently totally unaware of the DDR holding last time I appeared at the CAFC, and I have an audio recording to prove it.

    Also See Alice Corp., slip op at p. 15. Improvement is supposedly indicia of an “inventive concept” under step 2.

    Also, resolve DDR Holdings with Investpic or EPG. Seriously, try it.

    “An inventive concept is part of step two. Moreover, finding an inventive concept isn’t the same as finding an improvement. Rather an inventive concept is “an element or combination of elements” that is significantly more than the alleged abstract idea. Different analysis.”

    Again, read at pp 10-11

    Also read all of Alice Corp., then read Ariosa. Preemption is no longer an issue. “Significantly more” is no longer an issue. What is left is an “inventive concept,” and that may not be enough according to Investpic at p. 11.

    Inventive concept is a meaningless phrase. Abstract idea is meaningless as the courts rarely address the claims as a whole under step 1 or step 2.

    You cannot define inventive concept based on any case where I can’t show you another case that contradicts such definition.

  20. Anon November 19, 2019 5:09 pm

    Sorry Curious, but you omit the FACT that the Court has been duplicitous on the point that you wish to rest on with your statement of:

    Whether it is old or not does not determine whether something is directed to an abstract idea. Look at FN5 of DDR Holdings, which recognizes that most inventions are collections of old things.

    There be a Gordian Knot of conflilct there, as “being old” HAS BEEN a determinative as to whether something is directed to an abstract idea (and this BY THE COURTS).

    Further, as to the conflating between Step 1 and Step 2, you are again incorrect in trying to have this be a “B” item – as this is routinely done by the courts (and IS reflected in the Office January and October eligibility guidelines!).

    Your attempt to try to distinguish what the courts are doing as if there be no conflicting morass IS very much part of the problem (in the way of trying to say that the score on the — broken — score board is ‘ok’ – it is most definitely NOT ‘ok’).

  21. Jam November 20, 2019 11:31 am

    @Curious How does Judge Chen decide whether to allow a claim at Alice/Mayo Step 1, a coin flip? For example:

    KPN slip op. at 14:
    In the present case, the appealed claims recite a sufficiently specific implementation (i.e., modifying the permutation applied to the original data “in time”) of an existing tool (i.e., check data generating device) that improves the functioning of the overall technological process of detecting systematic errors in data transmissions. See McRO, 837 F.3d at 1313–16; Ancora, 908 F.3d at 1348–49.

    Applied to Chamberlain:
    In the present case, the appealed claims recite a sufficiently specific implementation (i.e., modifying the garage door opener to transmit “a status condition signal that …”) of an existing tool (i.e., the garage door opener) that improves the functioning of the overall technological process of opening garage doors with remote devices.

    The same “reasoning” from KPN, if applied to Chamberlain, would have allowed the case in Chamberlain. Further, the reasoning of Chamberlain if applied to KPN could similarly have been used to deny eligibility in KPN. This is the problem with current 101 jurisprudence, i.e., that there is no objective standard for overcoming the judicial exceptions leaving judges and examiners free to reject claims based on their feelings instead of being based on the law.

  22. Curious November 20, 2019 11:51 am

    Sorry Curious, but you omit …
    It isn’t my job to try to reconcile these decisions. However, the court has a framework that they have been using. I’m not passing judgment on the whether this framework was well-constructed, but if one is going to pull down a structure, it is best to know how it was constructed.

    Also, if somebody is going to the Federal Circuit, it is best to know what thing certain judges are going to be looking for. They aren’t the same — far from it.

    Your attempt to try to distinguish what the courts are doing as if there be no conflicting morass IS very much part of the problem
    I’m trying to understand the law so that I’m best able to present a winning argument before an Examiner/Board/CAFC. Throwing up one’s hands and declaring this to be a irreconcilable mess that needs to be completely wiped off the map, while tempting, does not help me and my clients at this particular time.

    There are two broad issues being addressed here ….
    1) how do we deal with this mess as it is currently presented, and
    2) should someone (i.e., Congress/SCOTUS) step in and clean up the mess that has been made.

    I’m addressing the first issue.

  23. Anon November 20, 2019 3:43 pm

    Again, but “Sorry Curious” (I feel like I am channeling a tuna product…)

    Your statement of “It isn’t my job to try to reconcile these decisions. However, the court has a framework that they have been using. I’m not passing judgment on the whether this framework was well-constructed, but if one is going to pull down a structure, it is best to know how it was constructed.” is itself in need of being reconciled.

    My point was that the “framework” that you want to reference CAN NOT WORK (as it is a Gordian Knot of self-conflicted mess). The very fact that it IS a mess is WHY it needs to be pulled down. The “how it was constructed” is something that is part of the problem (and something that I have pointed out at least for a decade now): the Supreme Court has disregarded Congress and the Constitution with its desire to place its own subjective view of statutory law above the actual words (and deeds) of Congress in the Act of 1952.

    Having said that, I certainly agree with you that if you are going to the Federal Circuit, it is very important to know the judges, as they certainly are NOT of uniform mind and certainly do not care from one panel to the next about how their own Common Law law writing is ADDING to the Gordian Knot.

    I do understand — and respect — your statement of trying to help clients NOW. I posit though that drawing attention to the Gordian Knot is a necessary precursor to ANY long-term solution TO that Gordian Knot (and conversely, NOT drawing attention to it and merely “getting by” is one of the worst things that we ‘can do’ for our clients – at ANY time. Thus even for dealing with your first broad issue, we must be vigilant in NOT accepting a broken score board as indicative of the score. HOW we go about that will of course be open to a large degree of variety and necessarily draw to mind the immediate audience. For example, an examiner will not likely care (or do anything with) a showing of the Constitutional infirmities engendered by the Supreme Court transgressions. But this does not mean that one pretends that these do not exist, nor does one not lay a foundation for these for any item that MAY escalate up the proverbial (abstract?) food chain. And most certainly, when one is discussing matters on a patent law blog, the clarity of the FULL set of issues (and NOT accepting a broken score board) should be maintained.

  24. B November 20, 2019 5:12 pm

    @ curious “It isn’t my job to try to reconcile these decisions. However, the court has a framework that they have been using. I’m not passing judgment on the whether this framework was well-constructed, but if one is going to pull down a structure, it is best to know how it was constructed.”

    I don’t think anyone is hyper-confused about the structure of Alice/Mayo test, or the variant described by Judge Hughes in Enfish.

    I merely state that the Federal Circuit is incapable of reading the Constitution, reading statutory claim language, reading Supreme Court precedent, construing statutory claim language, or issuing a consistent opinion one day to the next using objective criteria.

    “Also, if somebody is going to the Federal Circuit, it is best to know what thing certain judges are going to be looking for. They aren’t the same — far from it.”

    The “what thing” not only varies from judge to judge, but by the same judge one case to the next case. Thus, even if you knew what CAFC panel you were going to get the night before oral argument (you don’t), its still an exercise in capriciousness.

    FYI, whenever I go to the CAFC I keep a chart on all relevant decisions, which judges wrote the decisions, and which judges were on what panels. It provides a few hours time to customize arguments, and point to statements made by judges before you they cannot disagree with during oral argument. Be extra prepared and address questions made by the judges during other oral arguments you listened to.

    But don’t count on consistency from the judges. Don’t count on honesty. Don’t count on a single CAFC judge to face up to the dishonesty of his/her fellow judges. Don’t count on the Supreme Court to address the most bone-headed, dishonest, and contradictory assertions made by the Federal Circuit.

    Without objective standards the Alice/Mayo test is nothing more than a crap-shoot. Football players know the rules of football, but how does this help when the location of the goal posts and end-zone capriciously change after the conclusion of a play. “Yes, you were in the end-zone, but we just decided to change it.”

    I guarantee you that the “check data” holding will not be followed in any of the next three CAFC holdings. Why, because its garbage.

    Tell me, does “a generating device configured to generate check data” sound like “a software invention that actually improved the functioning of a computer?”

    Or does it sound like a general function (generating check data) where “computers are invoked merely as a tool?”

    Did anyone notice that the “check data” has no functional relationship to the rest of the claim limitations. Generate check data based on what? Do what with the check data?

    All that’s left is data scrambling. A varying device that permutates bits in a block of data, and yet some boneheaded judge is trying to convince me that this is some solution with the specificity to solve a gee-whiz problem. This means I can send data in reverse order (little endian versus big endian, anyone?) while performing a checksum in the next room on a completely different data set and still infringe.

    Call me unimpressed, ye third-rate legal minds of the CAFC.

    All that said, the claim is still patent eligible under 101.

  25. Bee November 20, 2019 5:34 pm

    “This means I can send data in reverse order (little endian versus big endian, anyone?) while performing a checksum in the next room on a completely different data set and still infringe.”

    Let me correct myself.

    According to the claim 1 don’t need to send data anywhere. I don’t need to store it either. I just need to generate checksums while rearranging totally unrelated data somewhere else.

    Such specificity to solving a problem . . . NOT!

  26. angry dude November 20, 2019 6:30 pm

    Anon @23

    “Gordian Knot” :):):)

    There is HIGH TREASON right in front of you and you are talking mythology…

    btw “Gordian Knot” must be cut into pieces with a sword

  27. Anon November 21, 2019 8:04 am

    B,

    You nailed it (and following your cases, you speak from painful personal experience).

    angry dude, I posit that I have been a better advocate against that “HIGH TREASON” that you have taken to screaming against — that my “talking mythology” is FAR better than your “just quit, baby” ‘take it to the morgue’ do nothing advice.

    And yes, Gordian Knots need be cut with swords. Have you provided any swords? I have provided several. (hint: taking it to the morgue will NOT cut the Gordian Knot — your advocacy only solidifies what the Efficient Infringers want).

  28. Curious November 21, 2019 8:24 am

    My point was that the “framework” that you want to reference CAN NOT WORK
    Which is entirely NOT ADDRESSING MY POINT. We are discussing TWO DIFFERENT ISSUES. Whether there is a framework (there is) and whether that framework works (it doesn’t) aren’t the same.

    I’m not wrong because I’m not addressing the issue you want me to address. I’m addressing the issue I want to address. Get it???

    I don’t think anyone is hyper-confused about the structure of Alice/Mayo test, or the variant described by Judge Hughes in Enfish.
    Really? I see confusion from Examiners, District Court judges, the Federal Circuit, and patent practitioners all the time. I’ve seen it by the people who write articles on this blog.

    I merely state that the Federal Circuit is incapable of …
    I’m not going to disagree with you there.

    Tell me, does “a generating device configured to generate check data” sound like “a software invention that actually improved the functioning of a computer?”
    You are looking at a single element. Improvements can be found in the invention as a whole.

  29. B November 21, 2019 10:20 am

    @ curious “Really? I see confusion from Examiners, District Court judges, the Federal Circuit, and patent practitioners all the time.”

    I do apologize, I was speaking about present company. Obviously, the courts, many APJs, and many examiners are confused. But as I’ve said – there’s no CAFC decision one can point to where I can’t point to another decision that holds the opposite. The Federal Circuit created a “cacophony of contradictions,” bizarre noise and lack the self-awareness to realize it.

  30. B November 21, 2019 10:24 am

    “You are looking at a single element. Improvements can be found in the invention as a whole.”

    Look again: that limitation is isolated from every other limitation, and the other limitations are nothing but data permutation within a block of data.

  31. Anon November 21, 2019 11:45 am

    Curious,

    I’m not wrong because I’m not addressing the issue you want me to address. I’m addressing the issue I want to address. Get it???

    You ARE wrong in not recognizing that the issues are intractably intertwined.

    I most definitely GET that you do not want to recognize this fact. But this is also why I interposed MY point. The reality of the situation – both in the timing and in the parties affected – is NOT one where your point exists in isolation. And attempts to treat ONLY your point in isolation can do nothing but aggravate the situation.

  32. Curious November 21, 2019 4:12 pm

    You ARE wrong in not recognizing that the issues are intractably intertwined.
    There can be a very clear distinction between: (i) identifying a position and (ii) debating the validity of the position. For example, I can identify the asserted reasons why the US needs a wall along its southern border. However, the fact that I can identify these asserted reasons does in no way mean that I agree/disagree with any of the reasons that I identified. A value judgement on the reasons is a different discussion.

    I most definitely GET that you do not want to recognize this fact.
    Really, that has to be one of the most laughable statements you’ve made. You most definitely DON’T GET my comments. My writings on this blog (for going on about a decade) on 35 USC 101 are quite clear. Regardless, at this very moment, I don’t care a flying &^%$ about your supposed fact. I’ve addressed the Federal Circuit’s mangling of the law many times over elsewhere. At the moment, what I am addressing is the framework the Federal Circuit has constructed as part of their 101 jurisprudence.

    And attempts to treat ONLY your point in isolation can do nothing but aggravate the situation.
    I’m sorry, but policy arguments and broad constitutional arguments don’t fly at the Federal Circuit. If you want to win, you better be able to use their framework. From my readings of the briefs being filed in the Federal Circuit (and from my listening of oral arguments), it appears that many attorneys don’t know winning arguments from losing arguments and I hear/read losing arguments being made there ALL THE TIME. At the moment, my concern is about winning today — not winning in some indeterminate future.

    Frankly, I don’t know why you feel the need to bully me into discussing an issue that I’m not interested in discussing at the moment. Me conceding that the case law is a mess (which I have done many, many, many times before) isn’t going to help my clients. I am tasked to make lemonade out of lemons. As such, I don’t need to hear you complaining about me discussing the recipe to make lemonade because all you want to talk about is the overabundance of lemons. The lemons are here and they will be here for the foreseeable future. If you don’t want to talk about making lemonade, then so be it. However, don’t complain to me when I discuss lemonade.

  33. Ternary November 21, 2019 5:16 pm

    B, the claim requires a “generating device” (for the check data) and it receives the varied data. Assuming that switching from “big endian” to “little endian” (or just reversal of bit order) is a permutation, then claim 1, requires little more than that.

    KPN probably concluded that claim 1 by itself has weaknesses and did not include claim 1 in its appeal. Claim 2 requires “switching in time” of the permutation. In your example: you have to switch alternately between big and little endian over time. But that means that every even turn the data is not permutated. A scrambler (like an LFSR) is not a permutation.

    Time change in permutation is what pushed the claim over the “abstract idea” barrier, it seems. But I don’t see claim 1 as “more abstract” than claim 2. I can see how claim 2 pushes the claim over a 102/103 barrier. But as we all know, that is an entirely different test.

    The Court can decide first (for instance when the moon is full and the wind is from the east) that the “time changed permutating device” is a valid inventive concept, but decides later (new moon, wind not east, had a bad lunch) that the “permutating device” is not an inventive concept at all, because it merely invokes a computer as a tool and it does not improve the computer itself. (Big endian and little endian bit orders are conventional and routine. )

  34. B November 21, 2019 5:48 pm

    @Ternary “ B, the claim requires a “generating device” (for the check data) and it receives the varied data.“

    Yes, and the generating device is required to do nothing with the varied data. There’s no functional interaction. A rock can receive data. I’m not saying any claim is patent ineligible. Quite the opposite.

    Anyway, a time-varying permutation cypher satisfies claim 2. That’s been done since before the Middle Ages.

  35. Ternary November 21, 2019 10:06 pm

    Claim 1:
    a generating device configured to generate check data; and

    a varying device configured to vary original data prior to supplying said original data to the generating device as varied data;

    One of ordinary skill would (certainly in the context of the specification) read this as: original data is varied into varied data and supplied to the generating device.

    This is a device claim, not a method claim.
    What else do you want to see in the claim?

    An ancient transposition cipher does not satisfy claim 2, because claim 2 requires the generation of check data from a time varying transposition of the data in data blocks. That was not done pre-computers, I believe.

    A rock cannot receive data. It can receive signals and heat up, but not data. It has no means for that.

    The invention appears to be light on details. I could not find any requirement on how many times the transposition had to change, beyond some general information. Once a year is covered, I think. Furthermore an S-box, PRNG and EXORs were disclosed. But these all cause substitutions which are not necessarily transpositions or permutations. I also could not find how the actual detection of errors is performed. The claimed permutations are actually a minor part of the spec.

    The approach gives the impression of a Hamming code wherein bit orders are shuffled over time and data and parity bits are separated. Cleverly claimed in an old style minimal way. Well, they got away with it. Good for them.

  36. B November 21, 2019 11:36 pm

    @ curious “What else do you want to see in the claim?“

    meaningful limitations.

    Again, I’m not saying the claim isn’t patent eligible. I’m saying the CAFC is a society of the inept. Their decisions are moronically capricious. They spew nonsense and expect us to believe what they say is meaningful. It is not.

  37. B November 21, 2019 11:42 pm

    “An ancient transposition cipher does not satisfy claim 2, because claim 2 requires the generation of check data”

    It does if one is running two unrelated applications – one for ancient cipher and one for data storage of the ancient cipher.

    Also, claim 2 doesn’t require any generation of check data related to anything else on earth.

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