Alice Insanity (Part Two): How the Dunning-Kruger Effect Influences the Outcome of Federal Circuit Decisions

“Dunning-Kruger empowers judges to just know things so long as there’s no evidence to contradict them.”

Dunning-Kruger - https://upload.wikimedia.org/wikipedia/commons/4/46/Dunning%E2%80%93Kruger_Effect_01.svg

Source: Wikimedia

The Dunning-Kruger effect is often defined as a type of cognitive bias whereby people are prone to vastly misjudge their competence. For example, smart and capable people tend to evaluate their skills and competence downward. That is, they tend to not just understand, but deeply internalize the idea that there’s a lot in life that they don’t understand. Circa 500BC, Confucius coined this wisdom stating, “Real knowledge is to know the extent of one’s ignorance.”

Then there’s the flip side, where low ability and/or low knowledge people overestimate their own capabilities while simultaneously being unable to recognize their own incompetence. One-hundred and thirty years (give or take) before David Dunning and Justin Kruger conducted their studies on the issue, Charles Darwin described this effect, stating, “ignorance more frequently begets confidence than does knowledge.”

Highly educated, successful, and presumably very smart people are especially subject to the Dunning-Kruger effect. Take, for example, Congressional Representative Hank Johnson who, during a House Armed Services Committee hearing, expressed his fear is that “the whole island [of Guam] will become so overly populated that it will tip over and capsize.” While comical, Representative Johnson is an accomplished and highly educated individual with a B.A. degree, a J.D. degree, more than 25 years of a successful legal practice, and over 14 years serving in the House. What Representative Johnson lacks is technical knowledge. Thus, Representative Johnson represents the idea that even impressively smart and accomplished people are subject to the Dunning-Kruger effect, as intelligence isn’t the same thing as hard-earned knowledge and skills. Expertise in one field of endeavor is not competence in another.

Alice-Mayo is the Dunning-Kruger Effect Run Amok in the Courts

The Federal Circuit and lower courts are not entirely to blame for the tangled web of patent eligibility. The root cause is the Supreme Court, which cannot help itself when tempted to rewrite 35 U.S.C. § 101 from the bench, starting with the inept Benson decision. Thereafter, Justice Stevens led his decades-long anti-patent crusade. No one knows what provoked Justice Stevens’ anti-patent bias – only that this bias was very strong and at least partially infectious among his esteemed technically-challenged colleagues.

However, Justice Thomas never gave the lower courts license to ignore the holding of Alice Corp. – particularly the part where Justice Thomas cited that the business method at issue had been disclosed as far back as 1896. As with the holding of Bilski, the holding of Alice Corp. is evidence based. Unfortunately, rather than reading the entirety of Alice Corp. (or Bilski or Mayo), the Federal Circuit and the U.S. Patent and Trademark Office (USPTO) decided that all business methods were suspect, that only the holy inventive concept could save such business methods from The Darkened Lands of the Abstract, and that only the black-robed priesthood of Madison Place could delve the secrets of invention.

The underlying problem is that, in the absence of evidence, judges tend to embrace Dunning-Kruger. Many judges do have technical degrees, but does a BSEE degree (sans industry experience) enable a judge to know whether a particular claim in adaptive signal processing is non-obvious without an evidentiary basis? Of course not. No judge presently on the Federal Circuit would make such a claim.

Why then would most of these same judges believe they have the knowledge to just know whether a claim is “abstract” and lacks an “inventive concept,” when these same judges not only lack a basic understanding and background of a specific underlying technology, but have outright refused to define the terms “abstract” and “inventive concept” as they apply to the specific technology at issue? Why then would most of these same judges believe they know the bounds of “invention” when no judge has ever defined the term in the last 171 years of patent jurisprudence? The answer is Dunning-Kruger. Dunning-Kruger empowers judges to just know things so long as there’s no evidence to contradict them. Most Federal Circuit judges don’t qualify as technical neophytes, yet they knowingly opine on the elusive inventive concept as it applies to the technology sub judice. David Dunning remarked on this very phenomena, stating, “the incompetent are often blessed with an inappropriate confidence, buoyed by something that feels to them like knowledge.”

When in Doubt, Apply Rule 36

“Even fools are thought wise if they keep silent, and discerning if they hold their tongues” – Proverbs 17:28. This Biblical verse summarizes every Rule 36 judgment on Alice-Mayo. It is how the Federal Circuit maintains the illusion that they know of what they speak. Other times, the Federal Circuit distorts the factual record, or conveniently forgets to address the issues before them. It’s how and why no patent applicant – without exception – has ever survived an Alice-Mayo rejection issued from the USPTO. Does anyone who works two blocks away from Madison Place or any federal courthouse believe this is possible without serial violations of due process of law?

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 as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 58 Comments comments. Join the discussion.

  1. PTO Indentured November 8, 2021 10:11 am

    A Terrible Swift Sword: To not know what you don’t know, then act as if you do with unmatched powers.

    More terrible: Do swiftly so with an anti-patent bias agenda.

  2. Pro Say November 8, 2021 10:23 am

    Thanks Bud — great insight and analysis as usual.

    Telling it like it is.

    While Congress twiddles their fingers and stare at their office walls, American innovation continues to sink.

  3. Greg DeLassus November 8, 2021 11:31 am

    Justice Thomas never gave the lower courts license to ignore the holding of Alice Corp… where… the business method at issue had been disclosed as far back as 1896.

    This is wishful thinking. I agree with the author’s broader point that the Dunning-Kruger effect can explain much of the “inventive concept” jurisprudence, but the idea that the CAFC and district courts are extending Alice beyond the limits of the Court’s original intention is willful self deception.

    The Court has had seven years now to rein in any “excesses” of the CAFC. It has steadfastly denied cert. on every single occasion, including several in which the SG had urged it to take cert.

    The cossacks work for the Czar. If the CAFC cossacks are pillaging patentees, it is because that is what the SCOTUS Czar has bid them do.

  4. Model 101 November 8, 2021 11:50 am

    Ignorance is bliss.

    It’s the American way today.

  5. Lab Jedor November 8, 2021 1:42 pm

    Ignorance is bliss…, as Model 101 says. I certainly don’t promote ignorance as a scientific method. But it is sometimes useful to start addressing a subject with a blank slate. It may allow you to do inventions you would otherwise not do. (however, it mostly creates inventions that don’t work). Established knowledge tends to channel thinking.

    But… Ignorance never works in understanding an established subject matter. As I know from experience and as illustrated in the excellent above article, an initial belief of understanding with little or no real knowledge is almost immediately followed by a realization that one doesn’t have a clue. (the Valley of Despair). Many of us in patent prosecution on behalf of an inventor have been there. With absolutely no idea what an inventor has invented or wants/needs to claim after initially seeing a title that suggests one understands the invention.

    It is well known that almost nobody, (no, make that nobody,) goes into a matter with a blank mind. There is always some (un-articulated) opinion about a technology. Being good, bad, stupid, brilliant, undeserving. While often legal minds are accused of being biased against an invention, especially engineers are known to have very negative opinions about inventions made by others.

    Listening again (after this article) to the oral arguments in Benson, I remain being struck by some of the good and pertinent questions by Burger, Rehnquist and White. It is attorney Stone who argues for the USPTO, who is either extremely ignorant about computers, or he is lying through his teeth.

    Facts: Computers are not mathematical machines. They are switching machines. Computers in 1973 were used for other application than calculations. Computers have not always handled binary representations. Early computers were decimal computers or even bi-quinary. BCD to Binary conversion was done from most significant digit backward and not as claimed by Benson. Application software establishes different instructions or at least differently ordered selected from a very basic instruction set. The basic instruction set of a computer is different from an application. A computer is not like a pianola (a really idiotic comparison that lives on into today’s discussions).

    The arguments by Benson attorney Cox are technical, knowledgeable and largely correct, but rather timid. He also fails to really forcefully address Stone’s assertion that computers are fundamentally “mathematical machines.”

    It seems the Court already had some prejudice against computer implemented inventions (, as confirmed by NightWriter in a late comment to the first article). Though the Justices ask some pertinent questions, they basically see their prejudices confirmed by forceful arguments of Stone and were not swayed by the subdued technical arguments of Cox. White, Burger and Rehnquist all decide for the PTO. They did not move from their “Mount Stupid” or rather their “Mount Ignorance”.

    Some of the prejudices against computers as expressed and confirmed in Benson live on today. Seeing a Professor, former Examiner and science educated Commenter on this blog compare a computer still to a pianola or player piano is extremely discouraging.

    This is the problem that many of us, including “concerned” are facing. Many people believe that computer implemented inventions are undeserving of a patent. They believe that computers “naturally” do things. They don’t know how or why. They just know they do. They see it confirmed in Benson, Flook, Alice, etc.

    This prejudice is not science or technology based. That is why they refuse to define “directed to an abstract idea” or “inventive concept.” Because once they do, they tumble directly from Mount Stupid into the Valley of Despair.

  6. SRFIII November 8, 2021 1:52 pm

    Greg DeLassus @ 3

    I don’t think that the author is saying Dunning-Kruger is the only problem. Merely that the courts have weaponized ignorance.

  7. concerned November 8, 2021 2:26 pm

    Greg @3: That would be SCOTUS’ written intent within the Alice decision never authorized the lower courts to conflate the decision further.

    However, you may be correct that SCOTUS is authorizing this bad behavior silently by not stepping in.

    And that is the complaint I have: Judges do not have the guts to write what is really going on because it would be obvious how out of control the courts have become.

    Just come out and write it judges: We will not give a patent to any computer assisted invention even if it cured cancer, solved world hunger, prevented all wars and stopped judges from legislating from the bench.

    I have no problem if Congress codified the same, but acting like there is rule of law is just plain wrong. Just write it and codified it for all to see.

  8. Anon November 8, 2021 3:00 pm

    concerned,

    In an exchange between myself and Night Writer I had explicated at least three ways that the Supreme Court has flouted the Constitution in its re-writing of the statutory patent laws.

    One of those ways reflects your “just codify it” point. I used the term “Void for Vagueness.” To a lesser point, the use of that term drew criticism from an eminent patent practitioner, who decided to have a pout when I showed him that his view of “Void for Vagueness only applied to criminal law matters” was not in fact correct.

    As it turns out as well, my discussion with Night Writer also failed to have Night Writer acknowledge the points that I presented (except in a clumsy half-hearted manner).

    But until Congress wakes up and takes their authority back (or the Court in changing its make-up decides to employ the Kavanaugh Scissors), we will not escape the fact that “the scoreboard is broken.”

  9. B November 8, 2021 7:45 pm

    @ Lab Jedor “Seeing a Professor, former Examiner and science educated Commenter on this blog compare a computer still to a pianola or player piano is extremely discouraging.”

    There’s a lot of case law on functional versus non-functional limitations that most patent prosecutors learned within the first few years of working. See, MPEP 2111.05 Functional and Nonfunctional Descriptive Material. There’s also a case 3-4 years ago – Praxair Distribution – that touched on the issue

    Apparently, said unnamed educator likely never encountered the issue.

    That said – Praxair was a 103 case but the defendant should have gone after the claims under 101 given the Mayo-esque quality of the claims at issue. https://www.freepatentsonline.com/8846112.pdf

    @ Anon ” I used the term “Void for Vagueness.” ”

    You didn’t go far enough in your criticism.

  10. step back November 9, 2021 12:27 am

    It would help to start listing the particular fields in which we see D-K playing out in full colors.

    I’ll start.
    Consider the COVID-19 pandemic and all those folk who believe they are “immunized” from having ingested horse paste.
    We send our best and brightest youths for post-doctoral training in bio-science for many many years. If it were that easy to understand and simple in nature, then why waste all that money and time?

    The sad fact is that Mother Nature does not in general obey Ocam’s razor. Rather we feeble minded hominids like it when something reduces to a simple formula like: E=m*c^2; V=IR; PV=nRT.

    The mammalian immune system does not lend itself to such simplification. Neither does mob behavior in the face of a lethal and highly transmissible disease. There are too many know-nothing know-it-alls busting up the china shop in just this field alone.

    And then we get to “computers” and the notions of hardware and software, and the notion of simply “apply it” using a computer merely as a monkey wrench. That’s when the monkeys really come out swinging from the trees. Heaven help us.

  11. Patent Lurker November 9, 2021 7:22 am

    Great article as usual, Bud. But I am a bit confused about your assertion that ‘no patent applicant – without exception – has ever survived an Alice-Mayo rejection issued from the USPTO.’ Didn’t Finjan, Enfish, McRo, Core Wireless, Thales, DDR Holdings, et al. survive a 101 rejection issued by the PTO by the CAFC determining that their claims pass muster under the Alice test? Now, those patent applicants may have lost out on a 102/103 issue at some later point in time, and thus never got a patent, but the Alice-Mayo roadblock was removed for them by the CAFC, right?

  12. concerned November 9, 2021 8:38 am

    Courts are making patent decisions without evidence.

    An interesting point in my prosecution, and well emphasized by B, there is evidence submitted into the Official Record from every possible end user revealing no one uses my claims individually or in combination. How many patent applications have that level of evidence, every possible end user? Plus there is evidence from the Administering Agency and two universities.

    The USPTO and PTAB have addressed my level of evidence by completely ignoring the evidence. Of course, no rebuttal evidence was offered by the USPTO and PTAB.

    Will the CAFC punt with a Rule 36, therefore, silently acknowledging that evidence really does not matter at all. Whether it be lack thereof in support of a decision or overwhelming evidence that can be discarded if not supporting a desired outcome?

    How far will the courts go? Just how far?

    The good Professor did state on the other thread that evidence matters. Even with a disagreement on what the court holdings meant, evidence matters. And the good Professor said my application would be approved.

    We shall see just where the madness will stop.

  13. Patent Lurker November 9, 2021 9:00 am

    I thought I posted earlier this morning, but I do not see it on the Comments, so I will try again. Bud: Great article as always, but your assertion “no patent applicant – without exception – has ever survived an Alice-Mayo rejection issued from the USPTO” confuses me. Didn’t Finjan, Enfish, Thales, DDH Holdings, McRo, Core Wireless, et al., get their 101 rejections reversed by the CAFC? Now, it may well be the case that none of them got a patent, due to 112/102/103 issues, but that’s a whole different story.

  14. Anon November 9, 2021 9:01 am

    B,

    I coughed up my coffee reading your post.

    I think that that is the first time I have ever been accused of “[not] go[ing] far enough” in my criticism.

  15. Anon November 9, 2021 9:12 am

    Alas, step back decides to go off the “patent reservation,” and himself “steps back” into his own Peak of Mount Stupid by buying into the Mass Media false presentation of ivermectin.

    Tune into some Joe Rogan, specifically the episode on which he shreds CNN’s Dr. Gupta.

  16. Clint Mehall November 9, 2021 9:54 am

    Insightful and well written article. I think Electric Power Group v. Alstom further aggravated this effect. Almost all questionable 101 rejections in the computer space cite this decision, as all computer inventions are involved in “collecting information, analyzing it, and displaying certain results of the collection and analysis.” This language stacks the deck against the applicant or patentee, inviting further bias.

  17. Andrew Berks November 9, 2021 10:01 am

    “no patent applicant … has ever survived an Alice-Mayo rejection issued from the USPTO” – is this really true? What about DDR? I think there are cases that have survived review. Otherwise thanks for the excellent analysis.

  18. B November 9, 2021 10:07 am

    “But I am a bit confused about your assertion that ‘no patent applicant – without exception – has ever survived an Alice-Mayo rejection issued from the USPTO.’ Didn’t Finjan, Enfish, McRo, Core Wireless, Thales, DDR Holdings, et al. survive a 101 rejection issued by the PTO by the CAFC determining that their claims pass muster under the Alice test? ”

    Just, FYI, the cases above came from Federal Dist. Cts. See, e.g.,

    https://www.law.berkeley.edu/wp-content/uploads/2018/05/McRo-v-Bandai-Nameco-Games-837_F.3d_1299.pdf

    https://cafc.uscourts.gov/opinions-orders/09-1576.pdf

    However, if I was unclear – I was speaking about ex parte PTAB affirmations from the USPTO. The PTAB in reverses about 15% of Alice-Mayo rejections overall – the CAFC is just a collection of rubber-headed know-nothings rubber stamping the PTAB

    I made this same statement years ago before the CAFC and Supreme Court and neither the Solicitor nor the AG found different.

  19. B November 9, 2021 10:55 am

    @ Anon “I think that that is the first time I have ever been accused of “[not] go[ing] far enough” in my criticism.”

    Well, there is a substantial difference b/t vague and completely meaningless

    @ Step Back

    Just FYI, Ivermectin has been used with success overseas. See, e.g., https://pubmed.ncbi.nlm.nih.gov/33592050/

    Even the CDC has recommended use of it https://www.citizensjournal.us/cdc-recommends-ivermectin-for-most-refugees-entering-u-s/

    This isn’t to say that people who misuse the livestock paste aren’t idiots. A full tube (1.87%) of that stuff is used for a 1,500 lb animal and people are apparently OD’ing on the stuff b/c they don’t bother to read the directions on the box.

    I’m not promoting ivermectin, btw. I just don’t dismiss it in light of the little I know, my realization of how much I don’t know, and the musings of Hollywood celebs.

  20. B November 9, 2021 11:00 am

    @ Andrew Berks ““no patent applicant … has ever survived an Alice-Mayo rejection issued from the USPTO” – is this really true? What about DDR”

    DDR Holdings was not ex parte out of the USPTO but was an appeal out of the Dist. Ct. of Eastern District of Texas

  21. B November 9, 2021 11:15 am

    Clint Mehall “I think Electric Power Group v. Alstom further aggravated this effect.”

    I’m well on record in my public criticisms of Judge Taranto, who penned that piece of trash. BTW, Taranto was part of the McRO panel https://www.ipwatchdog.com/2018/08/24/judge-taranto-meet-judge-taranto

    BTW, Judge Hughes actually asked me during oral arguments “Has the Federal Circuit ever held a claim patent eligible that did nothing more than take data, process data and display data?” Hughes is the guy who supposedly wrote Enfish.

    The part where I actually discussed Enfish with Judge Hughes (why would I NOT!) is apparently missing from the official oral argument recording at the CAFC website. Either I’m totally insane or the recording was edited. I’ll accept criticisms that I’m delusional until I can prove otherwise.

  22. Patent Lurker November 9, 2021 3:22 pm

    Bud, I can attest that after having worked at the same crazy firm with you many years ago that you are not delusional! Now, the other people in that firm, that’s another story!

  23. step back November 9, 2021 10:39 pm

    B @19

    Here’s the the thing B. Viruses that are hosted in the human body naturally mutate due to transcription errors. The corana-19 alpha virus and its many mutations are just a subclass of corona viruses including the common colds. If Ivermectin were truly such a wonder drug for treating corona viruses (even the common cold), surely we would have heard about this medical miracle long ago. Snake oil salesmen are not a novel and nonobvious phenomenon in this or any other country. Yes they are persuasive. But persuasion is not proof of scientific reality. The D-K sufferers among us are easily persuaded.

  24. Anon November 10, 2021 9:11 am

    Step back absolutely misses the point on ivermectin — and shows a lack of understanding of his own Mount Stupid:

    The D-K sufferers among us are easily persuaded

    D-K’s are NOT easily persuaded – that’s a feature of their ‘improper’ level of self-confidence.

    Rather than continue down your path of folly, tune into the Joe Rogan/CNN’s Gupta bit.

    You can inform yourself about what is actually being said about ivermectin.

  25. B November 10, 2021 11:16 am

    @ Step Back “Here’s the the thing B. Viruses that are hosted in the human body naturally mutate due to transcription errors. . . . ”

    Respectfully, none of these viral mechanisms has anything to do with ivermectin

    “If Ivermectin were truly such a wonder drug for treating corona viruses (even the common cold), surely we would have heard about this medical miracle long ago.”

    My point: politics trumps science, and COVID is politicized like nothing else. I just posted links to NIH and the CDC on the effectiveness of ivermectin. That said, you have doubts. Why exactly? I’m not saying it’s wrong for you to have doubts, and I’m not the be-all, end-all authority on anything medical.

    I would kindly suggest that the problem is that our idiot tech-lords are controlling information, and they’re not experts on anything. Twitter and FB are super-spreaders of the D-K effect.

    “But persuasion is not proof of scientific reality.”

    Which is why I don’t trust entertainers, social media, or any news outlet on COVID treatments. Remember how certain politicians and certain entertainers were claiming that the unvaxx’ed were endangering the vaxx’ed? Turns out that last month THE SCIENCE™ showed that the vaxx’ed carry the same or greater viral load. https://www.ucdavis.edu/health/covid-19/news/viral-loads-similar-between-vaccinated-and-unvaccinated-people

    Just remember – I’m very pro-vaccine, but I’ll take my medical advice from my doctor and ignore the talking heads, the politicians, and the comedians. I also reserve the right to tell the government to go screw itself if these seemingly unconstitutional mandates conflict with my doctor’s advice or are unsupported by THE SCIENCE™.

  26. step back November 10, 2021 1:53 pm

    “Virologist Friedemann Weber from Justus Liebig University in the western German city of Giessen told DW that it was not the vaccinated who gave rise to new escape mutations and variants, but the unvaccinated: “It was infected people who provided a breeding ground for the new variant and immune escape of the virus.”
    A glance at India, Brazil, and South Africa shows this, he said. According to Weber, this is where the mutations that are now widespread arose and where the percentage of people vaccinated was very low.”

    https://www.dw.com/en/fact-check-did-covid-vaccines-cause-the-delta-variant/a-58242263

  27. Curious November 10, 2021 4:16 pm

    Even the CDC has recommended use of it
    It was recommended for treating refugees from where loiasis is prevalent. In other words, it is used to prevent African eye worm, which is consistent with its approved use as a dewormer/internal parasites.

    Just FYI, Ivermectin has been used with success overseas.
    The particular article referenced was a trial in India. However, it is important to note that there are guidelines as to how a study should be properly conducted. These include inclusion criteria, randomization of treatments, sub-group analysis, sample size among others. The fact that a study was performed and results published doesn’t mean that the study has any value. I’m very good friends with someone who designs drug trials for a living. He just shakes his head at this kind of stuff.

    Remember how certain politicians and certain entertainers were claiming that the unvaxx’ed were endangering the vaxx’ed? Turns out that last month THE SCIENCE™ showed that the vaxx’ed carry the same or greater viral load
    Except that people who are vaxx’ed are less likely to transmit it. Viral loads and transmissibility are not one and the same.
    https://www.nature.com/articles/d41586-021-02689-y

    The key part is the following:
    Previous studies have found that people infected with Delta have roughly the same levels of viral genetic materials in their noses regardless of whether they’d previously been vaccinated, suggesting that vaccinated and unvaccinated people might be equally infectious2. But studies also suggest that vaccinated people are less likely to spread the virus if they subsequently catch Delta: their levels of nasal virus drop faster than do those of unvaccinated infected people, and their nasal swabs contain smaller amounts of infectious virus3.
    This is why I rarely listen to anybody on the news/radio/media/whatever when they describe something. Rather, I want to go to the original source and make up my own mind.

    Tune into some Joe Rogan
    I would rather have someone gouge out my eyes with a rusty spoon. I would rather listen to two hours of Max Drei describing how much better the EPO is than the USPTO. Both have agendas but at least Max Drei knows (somewhat) about what he speaks. Rogan is standing somewhere near the peak of Mount Stupid.

    Getting back to ivermectin, who knows, maybe it does help. However, good, peer-viewed data has not shown that. On the other hand, THE SCIENCE has clearly shown what really helps. In most instances it involves two shots taken either 3 or 4 weeks apart. Anybody who is pushing ivermectin over what really works is part of the problem and ignoring THE SCIENCE.

  28. step back November 10, 2021 7:20 pm

    Looks like someone here is getting schooled.

    Those not infected with D-K syndrome might open their eyes and say, “Looks like there are somethings I didn’t understand even though I was convinced I knew it all”.

    Thank you for further enlightening us Curious.

  29. Anon November 10, 2021 7:27 pm

    step back appears to want to step back and talk about virus sources.

    I am more than certain that he does NOT want to open that Pandora’s box.

  30. B November 11, 2021 2:12 am

    @ Curious

    Thank you for your contribution on the issue, and of your even-tempered discussion on the issue. Just FYI, I meant the CDC citation only for the proposition that it’s a safe medication. My father has used ivermectin for decades to treat his livestock and pets – as well as a few human skin ailments – but I didn’t want cite the Long-Term Mathis / Tractor Supply study for ivermectin safety.

    As to the overseas studies, I don’t pretend to know which are better than others, but I do understand that the COVID death toll in India is apparently less than in the U.S. even with a 15-20% vaccination rate in India and even with a billion more people to consider. Maybe its overall age demographics (29 years versus 38 years) – maybe it’s more. Again, I don’t pretend to know, but there has been a disturbing silence on the issue imho.

    Again – My biggest criticisms are of government overstepping, big tech quashing opinions they don’t like, and the idiotic politicizing of COVID. I prefer my medical decisions to be my own, and my discussions on THE SCIENCE™ without censorship and without harsh rhetoric — which is why I appreciate your present attitude.

  31. Curious November 11, 2021 10:18 am

    Maybe its overall age demographics (29 years versus 38 years) – maybe it’s more.
    I think you’ve put your finger on the biggest difference. The same goes for Africa. Also, you have two geographic regions (generally very warm) in which substantial portions of the population that spend a lot of time outside. These are two huge factors that significantly reduce the chance of infection/mortality.

    My biggest criticisms are of government overstepping, big tech quashing opinions they don’t like.
    One of the few times the government should be stepping in is in a PUBLIC health crisis. There is considerable historical precedent in the US (and elsewhere for that matter) for government officials to take very aggressive measures to curb the spread of an infectious disease. I’m no huge fan of big tech (my writings of these past years have long shown that). However, there is a difference between quashing opinions (BTW, they do have a right to do that since they are not government entities and consequently the 1st amendment does not apply) and quashing inaccurate facts.

    People have such divergent opinions on these issues because they are living in alternate realities while working with an entirely different set of facts. We are so divided as a country because we aren’t working with the same set of facts. To restate what I wrote previously, this is why I prefer not to let people interpret the so-called “facts” for me. Rather, I want to find the source material and interpret the facts for myself. And let me make this clear, it isn’t just one side that misrepresents facts. However, IMHO, one side has been more cavalier about it recently.

    the idiotic politicizing of COVID
    No disagreement there. However, in today’s country (and who am I kidding, it has probably always been like this), everything gets politicized. Whether a particular political initiative is deemed good or bad by one side or the other is typically based upon who did the initiating.

    I prefer my medical decisions to be my own
    That would be my preference as well. However, in a PUBLIC health crisis, the government gets more say. The government has to be looking out for everybody — you and only have to look out for ourselves and our families. In most instances, your medical decision only has indirect consequences (mostly monetarily) on everybody else. However, in this particular instance, your medical decision (or mine) can have direct medical consequences on the public as a whole. This is what has historically permitted the government leeway in mandating things like vaccines.

    BTW, did you work in a large DC law firm in the early to mid 00s? Your name has long rung a bell. If you care to share, just give me the abbreviations of the law firms you used to work for.

  32. B November 11, 2021 4:01 pm

    @ Curious “However, there is a difference between quashing opinions (BTW, they do have a right to do that since they are not government entities and consequently the 1st amendment does not apply) and quashing inaccurate facts.”

    Let me say that we both appear to agree that people have a 100% right to say totally idiotic fictitious garbage under the 1st amendment.

    With this in mind – private companies wanted to be the town square – fine – but given they are now the public square, there is a big brother problem and, as anti-regulation as I am, I believe regulation is necessary to protect the public square. I just never thought the Orwellian Ministry of Truth would come from the private sector in the form of Mark Zuckerberg and Jack Dorsey.

    Oh, and Google is now an official on-line extension of Chinese government censorship in China.

    Big tech should be the last people to determine “inaccurate facts.” The New York Post, for example, was shut completely down on Twitter for posting 100% accurate facts that were politically embarrassing to a certain political candidate. As to COVID, big tech constantly censors people that post 100% accurate data – and ironically – data that became official government facts months later. Big tech also allows totally fictitious information if it suits their narrative.

    Apparently, as with you, I prefer to listen to all points of view, and determine what is b.s. for myself. With this in mind, I propose that any tech platform that wants to be a publisher and not merely a carrier should be stripped of any legal protections.

    “However, in a PUBLIC health crisis, the government gets more say. The government has to be looking out for everybody — you and only have to look out for ourselves and our families. . . . .”

    This is a fair point – but again politics got in the way of THE SCIENCE™. For instance – there is little or no evidence (to my understanding) that mask mandates as implemented work at all, and yet one set of politicians and Hollywood celebs seek to villainize people for not complying with mandates said politicians and celebs don’t comply with themselves when no one is looking.

    Further, politicians use this enforcement power selectively. Businesses and school children must be punished but unvaxx’ed and unmasked illegal aliens can enter and wander the country freely. Things like this tell me (and many others) that there’s less public health crisis and more political opportunity at play. Public cynicism is massive, and the result is a visceral open hatred between people based on vaxx and mask status.

    TOTALLY INSANE, and could have been avoided.

    “BTW, did you work in a large DC law firm in the early to mid 00s?”

    Yes – wonderful firm. I learned a lot from some very clever and experienced people. The firm was across the street from the Metro Center station for your clue, with the world’s best bakery around one corner.

    BTW, I am taking concerned’s case to the CAFC as you possibly know. I am doing this pro bono, btw.

    I would much like to meet everyone on this platform, if possible, at oral hearing. This especially includes my biggest critics. I find face-to-face discourse more congenial as a rule (very important to me at this time in my life), and an opportunity to better exchange ideas and constructive criticisms — even to say idiotic things — without it becoming an official forever record on the internet.

    BTW, I want to thank Ms. McDermott for her efforts to keep this board civil.

  33. B November 11, 2021 4:41 pm

    @ Step back “Those not infected with D-K syndrome might open their eyes and say, “Looks like there are somethings I didn’t understand even though I was convinced I knew it all”.”

    It’s funny. I’m the one saying I that I don’t know the answers (“I’m not the be-all, end-all authority on anything medical.”) re ivermectin whereas you are the one sticking your neck out on a medical issue.

    Ivermectin may or may not be effective, but no one here (including Curious) except you claims to know the answer.

    I respectfully say that it’s best to let the actual scientists do their thing before you and the political scientists do the victory dance.

  34. B November 11, 2021 5:02 pm

    @ Curious “Viral loads and transmissibility are not one and the same.”

    From your reference: “The study shows that people who become infected with the Delta variant are less likely to pass the virus to their close contacts if they have already had a COVID-19 vaccine than if they haven’t1. But that protective effect is relatively small, and dwindles alarmingly at three months after the receipt of the second shot.

    Goes to my initial point.

    Respectfully, I’m not saying you’re wrong in the end. However, consider this reference from the NIH. https://pubmed.ncbi.nlm.nih.gov/33296437/

    “Transmissibility of COVID-19 depends on the viral load around onset in adult and symptomatic patients”

    @ step back

    I respectfully assert that enlightenment comes from respectful disagreement followed by civil discourse on the merits.

  35. concerned November 11, 2021 6:43 pm

    I have this incredible attorney “B” who volunteered to take my case pro bono to the CAFC. I personally appreciate this offer.

    On behalf of the many people with disabilities who may benefit from these efforts, I am sure they appreciate B’s efforts also.

    The patent is extremely important in a government environment to secure the investment to make the process occur.

    Win or lose, we thank B.

  36. Braverman November 11, 2021 8:05 pm

    Biden and AOC live on the Peak of Mount Stupid.

  37. B November 11, 2021 8:20 pm

    @ concerned “Win or lose, we thank B”

    concerned – I took on your case because it is perfect to argue.

    It can be described as a business method

    No 102, 103, or 112 rejections

    The PTAB Panel actually argued “legal” definitions to usually ordinary words while failing to provide any legal definitions or cite where they may be found.

    very detailed claims

    Your USPTO attorney did a great job. I think you got your money’s worth from Bryce.

    If you win, there are two likely paths: (1) because the PTAB refused to consider evidence – which would be a reversal of Investpic and a dozen other CAFC decisions, or (2) violating due process

    A path 1 decision would help you but be worthless to the patent community unless you win en banc. Likely, the CAFC would be totally silent on the due process issue if you win on path 1.

    A path 2 decision would be a game changer, and near 100% would go to the Supreme Court. Likely, there would be over 100 amicus briefs filed just on whether or not to take cert.

    Oral argument will be about the CAFC screaming “Admit that these claims are abstract,” then screaming more at me before I get 10 words out while I try to get the CAFC to answer questions about patent eligibility and what abstract means. The PTO will merely argue “This is just computers doing what computers do” while the CAFC panel gives whatever assistant solicitor arguing the case a foot massage.

    Just FYI, I’d like to see if I can get Congressman Massie involved for an amicus favoring no party – or even if I can get him to show up at oral hearing. Massie has a BSEE from MIT and a MSME from MIT. He’s also a bona fide inventor, ran a startup company, and is on the House Judiciary Committee.

  38. B November 11, 2021 8:37 pm

    @ Profesor Sarnoff

    BTW, I want to especially thank you for your previous input. No one learns from echo chambers. You made me consider things from a perspective I had not before considered while being civil in the process.

  39. step back November 11, 2021 9:14 pm

    B @32

    I think we are talking past each other.

    It was never my intent to say that I of all people am a know it all.
    I readily admit incompetence in the field of biotechnology (even though I did stay at a certain hotel chain and took a couple of undergraduate courses in biochem. 😉 )

    If you check my first post on this thread, I was merely pointing to Covid as a first of many examples of topics where D-K syndrome sufferers boldly charge into while true experts tip toe around such with trepidation.

    Recall that in the Mayo case, the Supreme know-it-alls got “it” right away. Gee, it’s just like plucking a leaf from a tree.
    See https://patentu.blogspot.com/2020/03/just-one-leaf-plucking-minute-there.html

    Computers. What is “a computer”? And especially a “generic” computer? I have hardly a clue. The Supremes know with confidence beyond that of any mortal.

    Fundamental building blocks of human ingenuity. What is that? Only those who possess the “ingenuity” know.

    Electricity. I like to fun EE’s with this one. Give me a valid definition of “electricity” that covers the static kind as well as the dynamic one.

    There are so many things we fervently believe we understand and yet when challenged fall short.

  40. Anon November 12, 2021 9:38 am

    B @ 32 – you nailed it.

    (will have to swing back to digest the rest)

  41. B November 12, 2021 11:11 am

    @ Step Back “Electricity. I like to fun EE’s with this one. Give me a valid definition of “electricity” that covers the static kind as well as the dynamic one.”

    a form of energy resulting from the existence of charged particles

  42. B November 12, 2021 12:00 pm

    @ Step Back “Computers. What is “a computer”? And especially a “generic” computer? I have hardly a clue. The Supremes know with confidence beyond that of any mortal.”

    So much of substance that we agree on.

    I bought my first 4.8 MHz 8086/8087 PC in 1985 for $2,300, and used it to develop add-in boards.

    I have marveled at every generation of DSPs since Texas Instruments introduced the 320C10.

    The last generation of PICs include a processor for less than $5 each (in small quantity) with processing power that blows away that $2,300 PC I bought decades ago.

    If only the Supreme Court had access to a law clerk who didn’t major in sociology or poly sci

    “Fundamental building blocks of human ingenuity. What is that?”

    It’s whatever three black-robed political appointees at the CAFC say it is.

    Next question

  43. Curious November 12, 2021 2:07 pm

    I learned a lot from some very clever and experienced people
    Same here. From your description, it appears it could have been the same very clever and experienced people.

    With this in mind – private companies wanted to be the town square – fine – but given they are now the public square
    I would characterize it differently. They created their own private square and some of the public have decided to go there. However, presence of the public in their private square doesn’t make it a public square.

    Oh, and Google is now an official on-line extension of Chinese government censorship in China.
    Unfortunately, the price of doing business in China. They aren’t the only one paying that price. That being said, I just typed Tiananmen+Square+Massacre into Google search and not only did I get an auto-complete recommendation as I was typing, the search results appearing to be pretty damning (to China). As such, China’s influence only extends so far.

    there is little or no evidence (to my understanding) that mask mandates as implemented work at all
    Tough to do a double-blind study with masks, don’t you think? I think there is evidence that proper use of masks work (wearing it, for example, only over your mouth is not a great idea). Moreover, the supply of N95 masks haven’t been great. That being said, masks most people use are an imperfect compromise. Their use isn’t just to prevent getting COVID but also to prevent it from being spread. I think the expression don’t let perfect be the enemy of good applies here. Masks aren’t perfect, and while perfect masks are possible they are very impractical.

    politicians and Hollywood celebs seek to villainize people for [insert cause célèbre]
    It is what it is. Nothing new to report here.

    Businesses and school children must be punished but unvaxx’ed and unmasked illegal aliens can enter and wander the country freely.
    I don’t call implementing procedures to help the public health as ‘punishment.’ My kids have been in physical classroom, in a public school in a very blue state, since late September of 2020.
    Also, I doubt an illegal alien can wave their illegal alien card to get out of a mask/vaccination mandate. These are two separate issues. My understanding is that the government encourages vaccinations at immigrant detention facilities but cannot force it. As with everybody else in the country, you have a choice to get pricked or not. There may be negative consequences for not getting the shot, but it still your choice — they aren’t going to strap you down to table and administer it. I thought of an applicable example (a COVID vaccination as a prerequisite of a green card) and when I did the search, it is actually a requirement as of 10/1/21.

    there’s less public health crisis and more political opportunity at play.
    Oh, there is a public health crisis. It was downplayed from the very beginning by those who recognized their political vulnerability to it actually existing.

    Public cynicism is massive, and the result is a visceral open hatred between people based on vaxx and mask status
    And who is to blame for that? There is a long history of vaccine mandates in the US. Our long history of the public accepting SUCCESSFUL remediation of several diseases via vaccination is being jeopardized. What happens when the next pandemic happens 2 years or 10 years or 20 years from now? We have a huge proportion of the government now conditioned to believe nothing from the government with regard to public health measures. This belief isn’t just going to stop at COVID vaccines. My state has a very extensive list of vaccine requirements for school age kids. Are we going to have a resurgence in measles, mumps, rubella, polio among others because certain people have poisoned the well?

    BTW, I am taking concerned’s case to the CAFC as you possibly know. I am doing this pro bono, btw.
    Good luck with that. I think I looked at concerned’s claims one day. Even with the best of panels, I would give you a miniscule chance of prevailing. Let me put it this way, I’ve seen a lot of inventions much farther away from the line that separates patent eligible from not eligible get tanked by the Federal Circuit.

  44. Lab Jedor November 12, 2021 3:00 pm

    We know very well what a computer is. A computer (as used today) is a machine.

    According to Wikipedia: A computer is a machine that can be programmed to carry out sequences of arithmetic or logical operations automatically.

    I would say as an engineer/inventor who modifies computer functionality: A computer is a state-machine that is programmed to start and carry out controlled modifiable sequences of physical operations that place the machine in different physical states. A computer may include input-converters that convert physical signals into computer processable signals and output-converters that convert processed computer signals into physical signals.

    You may have other technical definitions, as long it has technical evidence. But don’t let others, with no or limited technical background, define for us what a computer is. Most likely you will get some anthropomorphic definition that renders the computer a performer of abstract ideas. (“merely does what a computer is supposed to do” is one of my circular favorites). Only heartbreak and misery will follow.

    Same with “inventive concept” in a machine or method. An inventive concept is what is enabled to be done by the invention and what was not done before the invention. You may decide if something is obvious later. But if it was not done before, there is your inventive concept. Don’t let others define it as some mysterious or religious experience (or rather leave undefined), allowing them to fill in the most fitting definition when they need it.

  45. B November 12, 2021 5:33 pm

    @ Curious

    Let’s just agree to disagree on the political issues, because it’ll take weeks to flush out on this forum, and it’s not really relevant. However, watch the Google search autocomplete freeze when you type “China Wuhan COVID”

    “Good luck with that. I think I looked at concerned’s claims one day. Even with the best of panels, I would give you a miniscule chance of prevailing.”

    I think we can all agree concerned’s claims fall within the literal text of 101, and that the USPTO admitted they are not anticipated or obvious or have any 112 issues.

    So, in your opinion, what do they lack?

    What fundamental building block of human ingenuity is preempted?

    What law of nature is preempted?

    What makes them abstract?

    Why is Investpic relevant but Berkheimer not relevant?

    Just answer honestly what you think. I’m not trying to judge you, I don’t need to agree to appreciate a different point of view, and indeed I learn from different opinions and perspectives.

  46. concerned November 12, 2021 5:33 pm

    Curious@43: “Good luck with that. I think I looked at concerned’s claims one day. Even with the best of panels, I would give you a miniscule chance of prevailing. Let me put it this way, I’ve seen a lot of inventions much farther away from the line that separates patent eligible from not eligible get tanked by the Federal Circuit.”

    It has not been easy for the USPTO and PTAB. Changing rejections, toss evidence, give no references to their statements, not define their words, etc.

    If we lose at the CAFC, it will not be on the legal merits. It will be because the CAFC just said so. Even the good Professor Sarnoff stated I should get the patent in his opinion.

  47. B November 12, 2021 5:42 pm

    @ Lab Jedor “Same with “inventive concept” in a machine or method. An inventive concept is what is enabled to be done by the invention and what was not done before the invention.”

    This language tracks very closely with how the Canadians use the term in an obviousness analysis.

    Sprechen Sie Canuck, eh?

    Sind Sie aus Ontario, eh?

  48. step back November 13, 2021 5:42 am

    a form of energy resulting from the existence of charged particles

    B @41

    Not bad. You are very close.

    The point was not that you B, have a grasp because no doubt you are keyed in on details more so than your average electrical engineer or electrician. The point is that many people, even those who frequently read IPWatchdog (even myself) suffer from D-K syndrome in many areas that require deep and long study. We are confidant that we know and yet when challenged; realize –admittedly or with denial– that we actually did not fully understand.

  49. step back November 13, 2021 5:52 am

    a form of energy resulting from the existence of charged particles

    B @41

    OK. I won’t keep you hanging. Mere “existence” is not electricity because charged particles exist in all neutral atoms that have equal numbers of protons and electrons. It is the separating and reuniting of oppositely charged particles that create static and dynamic “electricity”. Good on you for being be very close. But this was not about you (or me). It’s about judges and politicians. How many of them know the word “electricity” and are confident beyond redemption that they understand what it is? You know. The stuff that magically comes out of the outlets on the walls of your house and office.

  50. Lab Jedor November 13, 2021 12:57 pm

    Mais non. It is based on doing inventions: keep it verifiable; test all assumptions; if it doesn’t work, it is not an invention; If it has been done before it is not patentable; if I can make a computer do it, it is not abstract.

    No, good old USA. Pourquoi le question en allemand? Thanks for the compliment anyway.

    Canada has some outstanding cryptographers. Very innovative and practical. So do we. So do other countries such as Belgium and Australia and increasingly China. Cryptography is a highly collaborative area, where people collaborate by (fact based) attacking novel cryptographic primitives, including their own.

    The crypto community is highly educated and open minded, but also rough and often brutal in its critique. The crypto community is largely indifferent about patents, if not actually against patents. The “market” is dominated by the US, influenced by the eminent position of NIST and its FIPS publications/standards.

    Many implementations of cryptographic applications are available for download on platforms like Github. Feel free to check if these programs are “merely requiring generic computer implementation.”

    Anyway, a reason to expand on that is that I heard several presentations in cryptography wherein a novel conceptual or theoretical primitive was deemed to be “abstract” until it was available in code and could be tested and attacked. So, when available in code it is no longer abstract. And that is how it is! Including with “adaptive filters” you refer to.

    PS A cryptographic primitive is a basic (and usually commonly accepted) cryptographic method such as SHA-2 in hashing. There is nothing “primitive” about it. It is a “building block” but not a “building block of human ingenuity.”

  51. B November 14, 2021 1:04 am

    @ step back

    Okay – a form of energy resulting from the existence of an organization of charged particles

    @ Lab Jedor

    “Pourquoi le question en allemand?”

    I already guessed – correctly or incorrectly – that you had a French background given your moniker – then I reassessed it to Canadian – maybe French Canadian – given your description of “inventive concept.”

    Total Cour d’appel federale du Canada, and unique to Canada to my knowledge.

    My mother’s side of the family are Newfies, fwiw.

    As to “pourquoi l’allemand,” I speak a number of languages . . . badly . . . but could think of no language that I know that is more at odds with any Canadian patois than German.

    Das stimmt, eh!

  52. Anon November 15, 2021 9:15 am

    B @ 51,

    I was wondering why you were inserting Deutsch.

    🙂

  53. Lab Jedor November 15, 2021 10:16 am

    Very clever and very funny. I can see why you probably are a formidable litigator. You are closer than you think, but also more off.

    If we need to speak German I would say: “Der Sinn eines Satzes ist die Methode seiner Verifikation.” (I speak several languages badly too). A verification principle that despite being often maligned (such as by foggy and ideological thinkers) is still in essence the fundament of science and technology and even math. Alas, not always in legal operations, even though “evidence” there is posed as a cornerstone.

  54. Curious November 15, 2021 1:23 pm

    What fundamental building block of human ingenuity is preempted?
    What law of nature is preempted?
    What makes them abstract?
    Why is Investpic relevant but Berkheimer not relevant?

    You think you are the first person to make those arguments? Trust me, you won’t be. Depending upon the judges, you’ll be amazed at the questions you get. Afterwards, you’ll be ‘why did they even bother to ask that question, it doesn’t matter?’ The answer is that they asked that question to throw you off because what you argue/say doesn’t matter to them.

    On a side note, citing Berkheimer is not going to get your much — you are coming out of the USPTO.

    Let me rephrase someone I wrote elsewhere, there have been a lot of patents tanked at the Federal Circuit that are a lot farther closer to patent eligible (along the continuum that goes from patent eligible to not patent eligible) than the claims I recall seeing. Perhaps I’m mistaken and confused a different set of claims by a different inventor who posted his patent here. Its been probably a couple of years since I looked at those claims. However, if they are the claims I recall, they are going to get tanked.

    Ask yourself, do you have better arguments for patent eligibility than the claims that got tanked in Yu v. Apple? Right now, that’s my go to case to show how extreme the Federal Circuit has gotten [it used to be American Axle and before that Chamberlain Group]. I would ask myself, how are my claims better situated with regard to 35 USC 101 than the following claim language:
    1. An improved digital camera comprising:
    a first and a second image sensor closely positioned
    with respect to a common plane, said second image
    sensor sensitive to a full region of visible color spectrum;
    two lenses, each being mounted in front of one of
    said two image sensors;
    said first image sensor producing a first image and said second image sensor producing a second image;
    an analog-to-digital converting circuitry coupled to said first and said second image sensor and digitizing said first and said second intensity images to produce correspondingly a first digital image and a second digital image;
    an image memory, coupled to said analog-to-digital converting circuitry, for storing said first digital image and said second digital image; and
    a digital image processor, coupled to said image memory and receiving said first digital image and said second digital image, producing a resultant digital image from said first digital image enhanced with said second digital image.

    Again, if the claims are what I recall them to be (so I could be completely wrong here), I would wager that even if you got the best possible set of judges on your panel, you would still lose. That is entirely my opinion with only very limited knowledge of the facts so take it for what it is worth — not much.

  55. concerned November 15, 2021 5:21 pm

    Curious: You could be right in your assessment. However, if the USPTO and PTAB are so grounded in the law, why all the tactics that appear so underhanded?

    Both the USPTO and PTAB look like they are throwing crap against the wall to see what sticks. The first examiner admitted I should get the patent in a telephone interview, then I mysteriously get a new examiner.

    We shall see what we shall see. But if we lose, it will not be on legal merits. It will be because the CAFC just said so. Or Rule 36 to not even try to rationalize their position.

  56. B November 15, 2021 5:46 pm

    @ Curious “Perhaps I’m mistaken and confused a different set of claims by a different inventor . . . ”

    You are not mistaken . . .

    “The answer is that they asked that question to throw you off because what you argue/say doesn’t matter to them.”

    Your summation is perfect. That said, the entire world of $800/hr attorneys tread lightly on the issues when appearing before the CAFC on an Alice Corp. appeal.

    “Ask yourself, do you have better arguments for patent eligibility than the claims that got tanked in Yu v. Apple?”

    Yu is another Taranto monstrocity, and so the claims never had a chance. I read every document in that case starting from the Dist. Ct. complaint.

    . . . but yes, I do have better arguments including: (1) not even a single iota of evidence that anything close happened 100+ years ago by a guy in France, (2) the PTAB went out of its way to ignore 55 separate documents of evidence supporting patent eligibility, and (3) There’s no such thing as an “inventive concept” (unless it’s nonobviousness) – its a totally capricious test that hopelessly confused judges use as a capricious veto while violating due process.

    Judge Newman’s dissent in Yu had the right of it.

    I’m very open about my strategy. Force the CAFC to define “abstract idea,” “substantially more,” and “inventive concept.” Challenge the CAFC openly in oral argument, and mock them in the process because they have never defined the terms and can’t define the terms.

    There’ no use arguing CAFC caselaw (e.g., Investpic vs Berkheimer) b/c the CAFC’s caselaw on Alice is total capricious b.s.

    In the end, the CAFC will argue longer among themselves how to avoid answering my questions than contemplate actually answering the questions they’ve refuse to answer since like forever. Half the CAFC will be clutching their pearls screaming (in their best echo-y Gretta Thunberg voice) “How dare you!”

    I have one selling point that I’m reserving from disclosing for a few months, but it goes to something half the judges have asked about at one time or another.

    I do appreciate your feedback here. That said, concerned’s claims are perfect for many of the very same reasons you think concerned’s claims are problematic.

    On that note: I know a secret. Vous m’entendez, Mssr. Lab Jedor? Je connais un secret!

  57. concerned November 16, 2021 6:53 am

    Curious: “On a side note, citing Berkheimer is not going to get you much — you are coming out of the USPTO.”

    Could you please expand on this statement? Is your statement because evidence and facts do not matter universally?

    PTAB said we do not understand the holding of Berkheimer, but gave no explanation for us to rebut. My understanding is facts, evidence and truth matter, Berkheimer or no Berkheimer ruling. This environment is of a legal setting? Ironically, the CAFC documents “B” has been sharing with me have statements regarding perjury, so there is at least an appearance that truth matters.

    I just cannot believe that facts and evidence do not matter. That the calendar says 2021, however, the USPTO, PTAB and CAFC can say it is the year 1776, so it is 1776. And SCOTUS will give a free pass on something so ridiculous?

    My claims do not look like much on the surface to someone outside my field. However, the USPTO and PTAB have written that my process did solve a long standing problem (since the existence of the program in 1956). And the PTAB wrote that my claims met the law as stated by Congress.

    My case is my “go to case”, I cannot imagine wanting anything more during a patent prosecution= Evidence on my side, no evidence submitted on their side, everyone agreeing my process solved big problem, everyone agreeing my process met the law as stated, and no 102, 103 and 112 rejections.

    The law, agreement it solved big problem, evidence, novel, and non-obvious, what more is there to have?

    I guess I shall see what I shall see.

  58. B November 16, 2021 11:16 am

    @ concerned “Could you please expand on this statement? Is your statement because evidence and facts do not matter universally?”

    I speculate that Curious is referring to Berkheimer was determined based on a federal procedural rule that doesn’t apply to the PTAB. Still, however, Berkheimer’s holding was based on the idea that evidence is necessary.

    Compare Investpic, which was based on fantasy

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