In re Killian: Harvey the Rabbit Comes to the Federal Circuit

“The refusal to acknowledge the army of giant leporidae riding the heard of stampeding elephants into court room 203 on Madison Place is a tacit admission that the Federal Circuit knows the Alice-Mayo test is capricious….”

https://www.imdb.com/title/tt0042546/mediaviewer/rm1179939328/

Source: IMDB.com

Editor’s Note: this article has been updated to reflect that the author is counsel for Killian.

In 1950, Jimmy Stewart starred in the iconic movie “Harvey,” which is the story of Elwood P. Dowd, an affable but eccentric man who pals around with an invisible 6’4” rabbit with an affection for martinis and that has the magical power to stop time. In the end of the movie, the viewer is left to believe that some level of insanity in people is good, and that there is some possibility that Harvey actually exists in some form.

Fast forward to May 5, 2022. While many Americans were celebrating Cinco de Mayo, the Federal Circuit was asked to address an entity far more fictitious and unbelievable than Harvey the Rabbit, known as “inventive concept,” during oral hearing in In re Killian (Appeal No. 21-2113).

In re Killian involves claims that, using computer-based technologies, enable the identification of overlooked adults who are eligible for Social Security Disability Insurance (SSDI) benefits. Such claims embody a unique approach that the United States Patent and Trademark Office (USPTO) has admitted pass all statutory requirements of the Patent Law, but somehow fail to pass Alice-Mayo’s two-part test, despite the fact that Applicant/Appellant Jeffrey Killian had filed 55 separate documents in support of the idea that no one ever solved the problem his claims solve. Unfortunately, instead of addressing this mountain of evidence at the USPTO, the Patent Trial and Appeal Board (PTAB) declared the claims were “mental steps” exactly to avoid addressing Killian’s evidence while ironically suggesting that, upon return to prosecution, Killian might want to submit more evidence. This is not a joke or an exaggeration.

Returning to the adventures of Harvey the Rabbit at the Federal Circuit, for those fans of fantasy literature but who are unfamiliar with the last decade of legal fiction, “inventive concept” is a thing that the federal courts and the USPTO pretend is real and insist has the magical power to kill perfectly valid patents and patent applications by a means no human has yet to fathom.

The ‘Leporidae’ in the Room

During oral argument at the Federal Circuit, instead of the usual melodrama that accompanies the final death throes of a patent application in the name of “inventive concept,” the USPTO Solicitor’s Office curiously avoided the issue. No amount of mockery by Killian’s counsel could force the Solicitor’s Office to even whisper the words “inventive concept.” Oddly(?) enough, the three-judge panel of Judges Taranto, Chen and Clevenger chose not to ask a single question about “inventive concept” of the Solicitor’s Office or ask specifics about Supreme Court or Federal Circuit precedent on the issue. There was something J.K. Rowling-ish about it all; the legal fiction that must not be named.

The absence of any discussion of “inventive concept” by the Federal Circuit and the USPTO is a tell. That is, the refusal to acknowledge the army of giant leporidae riding the heard of stampeding elephants into court room 203 on Madison Place is a tacit admission that the Federal Circuit knows the Alice-Mayo test is capricious, and that the Federal Circuit knows that the Patent Office knows the Alice-Mayo test is capricious.

To Judge Taranto’s great credit, he did not deny the capricious nature of Alice-Mayo but threw up his hands and lamented about how the courts are forced to live in a world of a “two-part framework where we do have to look for [this] inventive concept” created by the Supreme Court. Listen HERE at time = 7.02.

“Well, Your Honor, you’re looking for Harvey the Rabbit. Something that doesn’t exist,” explained Killian’s counsel, who continued: “Make the Supreme Court clarify its own two-part test rather than continue to let the USPTO violate the due process rights guaranteed to patent applicants under the Constitution.”

Further to Judge Taranto’s credit, he asked “whether the argument you’re making now [about inventive concept] is really an argument you should be making to the Supreme Court.” Listen HERE at time = 6.30. Counsel had raised this very issue before the Supreme Court in a petition for certiorari in Villena v. Iancu (18-1223 at p. 28). However, in all fairness, it is unlikely that the Federal Circuit would be aware of this. On the other hand, the Federal Circuit knows that the Supreme Court has avoided taking certiorari on Alice-Mayo like roaches avoid light.

Appellant Killian’s request to the Federal Circuit was clear: Acknowledge that Alice-Mayo is an unworkable and capricious test that the USPTO uses to routinely violate due process of law, and without doubt the Supreme Court will take certiorari. Kill Alice-Mayo here and now, and let the Supreme Court resurrect Alice-Mayo if it dares. Further acknowledge that, in the absence of any constitutional violation in the express language of 35 U.S.C. § 101, the courts lack the authority to rewrite the Patent Law using the test set forth in Washington v. Glucksberg, 521 U.S. 702 (1997) (Listen HERE at time = 8.15), and let the Supreme Court respond.

There are few guarantees at the Federal Circuit, but the fact that the CAFC panel did not hit the big red Rule 36 button on the way out of the door is encouraging.

A Clear Lesson 

In re Killian is hardly a morality play, but the full-frontal exposure of “inventive concept” stripped of its fig leaf in open court provides a clear lesson for the courts. Specifically, it is important for jurists to: (1) listen carefully to whatever Justice Stevens ever said about patent law and then (2) do the exact opposite. It was Justice Stevens, after all, who coined the term “inventive concept” in his 1978 Flook decision while insisting that, despite the complete lack of language in 35 U.S.C. § 101, inventiveness wasn’t limited to sections 102 and 103 of the Patent Law. Unfortunately, rather than dying on the trash heap of bad legal theories, the cancer known as “inventive concept” metastasized into the law of the land.

Insanity may have worked for the fictional Elwood P. Dowd, but insane legal theories are bad for courts, and worse for the people.

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32 comments so far. Add my comment.

  • [Avatar for concerned]
    concerned
    May 16, 2022 06:50 am

    “The bumbling of the PTAB in Killian’s case has provided a unique opportunity.”

    People following this case casually would not know this opportunity by just reading the claims they characterize as mental steps. One casual person said a computer is not even needed in the process. The preceding statement by such person is really an ignorant statement.

    It would not be known the first examiner said I should get the patent in a telephone interview, then magically the first examiner was replaced by a second examiner to carry the water of the higher ups.

    Then the PTAB realizing routine, well understood and conventional have zero shot of rejection based on the submitted evidence, changed the theory to mental steps.

    A casual person reading the claims, but not the specs, the evidence and the entire prosecution may characterize the process as mental steps, but that characterization is not support by the record or the end result of the process. The mental steps characterization is also not factual, once again proved by the evidence that is not being recognized. Consent cannot be waived mentally in my field. I would offer that consent in any field cannot be waived mentally by a third party, that should be self evident to the PTAB.

    Once a person argues mental steps, human nature kicks in and that person digs in, evidence is just an inconvenience to their opinion.

    Should anyone give us a definition of inventive concept or significantly more, or show us evidence that consent may be waived mentally by a third party, I can provide evidence that would meet said definitions.

    The current evidence on record would meet said definitions I am sure, however, those definitions that have been requested repeatedly probably will not be coming forth, nor would any evidence that consent may be waived mentally. Just capricious arguments to reject a patent application against all the evidence, while submitting no counter evidence of their own.

    Did the 100% of the cases battling 0.00% at the CAFC have evidence from every possible end user proving the claims are non routine, non conventional and non well understood? Did the 100% of the cases battling 0.00% at the CAFC have evidence that the process cannot be performed mentally? If not, are people commenting on this forum thinking I should be subjected to some kind of perverted collateral estoppel from the CAFC even though the fact pattern is different?

    As B said “The bumbling of the PTAB in Killian’s case has provided a unique opportunity.” I think so and I hope so.

  • [Avatar for B]
    B
    May 15, 2022 10:22 pm

    @ Curious “Without going back and relistening to oral arguments, I believe the Federal Circuit pressed you on this point.”

    Diehr was raised during briefing but not during oral.

    “You think you are the first one to argue that the case law is f-ed up? More articulate attorneys than you or I have made countless (good) arguments before the Federal Circuit and the Supreme Court . . . .”

    I’ve pretty much read them all – and no – no one has gone after Alice-Mayo as I have. All those articulate attorneys working for big firms feel bound to stay civilized and not challenge a single word a judge says.

    I say things they can’t.

    “and almost all have gotten shot down at the Federal Circuit and all have been shot down at the Supreme Court.”

    We know there’s a 100% loss when we stick to CAFC precedent – infinitely better than “almost all.”

    “However, [Benson] is Supreme Court law and it was cited with approval in both Alice and Bilski.”

    Cited? “Mental steps” was rejected in Bilski and Alice. That said, the Majority in Bilski cited Benson for the idea of tearing down the Machine-or-Transformation test. The more one reads Bilski, the more one sees how much garbage every word of it is.

    “Enfish and McRo were attempts to reign in the excesses of the Federal Circuit . . . ”

    Dude – you have NO IDEA of what you speak, and I say this as a guy who has mocked Enfish and McRO multiple times in front of some of the judges that penned those very decisions. The judge’s reactions were like first graders trying to explain why they tracked mud on the carpet.

    “Benson did not categorically say that software is unpatentable.”

    That’s the magic of Supreme Court precedent on patent eligibility exceptions. They say stuff exactly like this but give no limiting principles.

    “Welcome to the world of patent law. Let me introduce you to the jurisprudence regarding claim construction.”

    Claim construction isn’t perfect, but since Phillips v AWH it’s been pretty darn good. I saw an argument on claim construction just b/f Killian, and the judges handled it competently. https://cafc.uscourts.gov/opinions-orders/21-2239.OPINION.5-11-2022_1950347.pdf

    “It is clear enough that I can make an argument based upon it.”

    No, you can’t. I’ve challenged the USPTO, the Federal Circuit, and the SCOTUS – and none of these organizations has ever thought of a single counter-argument except to avoid the issue and pretend nothing was ever said

    “I doubt your going to get much help from whatever the Supreme Court issues. None of it is going to overrule the Federal Circuit’s precedents or overrule Alice/Mayo/Bilski.”

    The Constitution has a way of trumping precedent.

    “You aren’t just fighting an uphill battle – you are trying to get to the moon without a rocket.”

    I’m taking the cavorite approach.

    Look, my friend – I get what you are saying, but having seen what I have seen up close and personal I know to an absolute certainty what absolute garbage Alice-Mayo is.

    That said – feel free to take a client to the CAFC and play slots on a machine that pays out 0.000% of the time. Everyone knows what total b.s. Alice-Mayo is. The bumbling of the PTAB in Killian’s case has provided a unique opportunity.

  • [Avatar for B]
    B
    May 15, 2022 05:16 pm

    @ Curious “Hardly, 90% of the examiners I run across would easily characterize your invention as a mental process and 99% of the APJs at the Board would as well.”

    Well, the PTAB in Bilski characterized Bilski’s claims as “mental steps” because they’re too stupid to know that machines aren’t human minds. I mean – just the PTAB cultivates vast stupidity among their TC3600 APJs doesn’t mean concerned isn’ t 100% correct in asserting that machines aren’t people.

    Also the SCOTUS rejected the PTAB’s mental steps rejection in Bilski and Alice Corp for an evidence-based approach

    Also, Berkheimer, McRO, and Enfish rejected mental steps, but you’d need to have read those decisions to know this

    Where exactly are you going with this mental steps argument?

  • [Avatar for B]
    B
    May 15, 2022 04:52 pm

    @ Greg “Best of luck to Bud, as well. I agree that merely trying again that which has failed makes no sense.”

    Greg, I thank you for your gracious support. That said, the blue brief had two arguments: One was about precedent (while showing the wildly contradictory outcomes), and the other was due process. The latter seemed to attract more interest.

    Let’ face it – Investpic and Berkheimer cannot both be correct. Benson and McRO cannot both be correct. Benson and Enfish cannot both be correct. The absurdities and contradictions just pile up like cordwood.

    Further, nothing in Alice-Mayo gives the PTO the authority to violate 5A due process, and I dare any judge or justice to pen an argument to the contrary.

    Again – not saying In re Killian will be a winner. I’ve seen too much trash from the CAFC to have any confidence in their integrity.

  • [Avatar for concerned]
    concerned
    May 15, 2022 01:29 pm

    Greg DeLassus:

    Thank you for your well wishes! May I ask your opinion on:

    1). Do I have a right to establish a prima facia case?

    2). If the USPTO and its Board make statements that I feel are not accurate, do I have a right to submit evidence to dispute their statements? And if I submit evidence, do the USPTO and its Board have an obligation to review and address said evidence?

    3). If the USPTO and its Board make characterizations about my claims based on appearance, but the evidence proves these characterizations to be incorrect, do the incorrect characterizations still control or the evidence?

    Background: People unfamiliar with my field may not realize that consent forms are necessary and so is the participation of the parents and their adult child. These are functions that cannot be done mentally or waived mentally, (e.g. forcing the signature of a consent form and/or forcing people who may be committing fraud to cooperate.) Evidence was submitted on the Official Record that support my assertions by independent third parties who are professionals in my field .

    The claims as written (plus it was explained throughout the prosecution) reveal a dedicated physical network that establishes the authority to waive consent and to identify the overlooked individuals without the cooperation of various parties. The dedicated network is physical, not mental, as the Social Security Administration needs physical proof that the consent was given or implied. The dedicated physical computer network solves said problems plus it makes cooperation mandatory without the parents or adult child’s involvement. To be clear: No physical and dedicated computer network, no solution as there are 1.5 million people in Ohio alone that such process affects. Social Security Administration has no authority to mentally waive consent, or any mental capacity to identify the needles in the haystack from 1.5 million clients in just one State.

    I look forward to your opinions. Thank you.

  • [Avatar for concerned]
    concerned
    May 15, 2022 03:25 am

    Any if the USPTO or its Board wants to give us the definition of significantly more or inventive concept, which to date after repeated requests they have not, we could address those definitions with evidence. On this forum in another article, one primary examiner attempted to define inventive concept, and when I countered, the primary examiner said SSDI (and its computer network) was not a technology. Even the Board implied SSDI and its computer network were a technology (page 13), it is just my process did not improve another technology. Apparently s101 states a process or method has to improve two or more technologies, s101 just does not read that way.

    As B mentioned in his article, when the Board switched the theory to mental steps, the Board suggested we submit evidence to address this new rejection theory, the very evidence the USPTO and Board already has in the Official Record and has refused to acknowledge.

    Accordingly, I do not understand the Board’s request unless it was to frustrate me and hope I go away.

  • [Avatar for concerned]
    concerned
    May 15, 2022 02:51 am

    “90% of the examiners I run across would easily characterize your invention as a mental process and 99% of the APJs at the Board would as well.”

    Yet nobody on Earth can do my process mentally. Nobody. Physically two professionals can look at 358 people in two years, but by then some of the 358 people status could have changed. Other people would not sign consent forms, other people did not participate. Any thoughts on how to mentally force someone to sign a consent form or participate?

    The first falsehood in my prosecution was routine, well understood and conventional. Then the falsehood switched to mental steps. The evidence in the Official Record proves both are falsehoods, however, apparently evidence does not matter, just over characterizations.

    Evidence submitted by USPTO and Board to prove their positions: Zero. Saying it just makes a falsehood true. B masterfully attacks this point in his blue brief.

    Any thoughts why SCOTUS used evidence in Mayo (admitted in specs) and Alice (textbooks) to make their determinations? Or is evidence just a factor in rejecting a patent?

    My hope is the truth shall set me free.

  • [Avatar for Curious]
    Curious
    May 14, 2022 07:06 pm

    The invention does need a real time aspect.
    You are the one who argued it, not me.
    The overlooked SSDI benefit needs to be discovered in the person’s lifetime. Social Security is not paid to dead people or their estate. You are again showing your lack of knowledge of my subject field. Take some time to read the entire file wrapper.
    And how is that going to help you as it pertains to Federal Circuit or Supreme Court precedent? The answer is that is doesn’t.
    The end result of my invention is the same end result of Diehr. It improved the existing subject matter process over the current art.
    Using that logic, then Alice and Bilski was decided wrongly. While we know this to be true, you aren’t going to convince the Federal Circuit and/or the Supreme Court of this. As such, you need to find different logic. That aside, Diehr resulted in a classic “transformation” – something your data processing invention doesn’t do. So no, the end result was not the same.
    BTW, I have a letter of intent from CGI. Have you ever heard of them? Only 12 billion in yearly revenue in the field of information technology. They must be idiots giving me a letter of intent based on your opinion of my invention.
    That’s nice. What does this letter of intent require? A patent? If so, your letter of intent is worth as much as a used piece of toilet paper.
    I will tell CGI not to use a computer based on your recommendation that the computer is not needed. What should I tell them if CGI looks at me like I am stupid?
    Stop acting like a petulant child and actually read what I write. If you cannot understand the law and facts (or are unwilling to recognize them), you cannot make informed decisions going forward. Your comments continually evidence a failure to understand both the law and your facts as it applies to the law.
    It probably explains why both USPTO examiners did not argue mental steps, both examiners were actually reading the file wrapper during the prosecution.
    Hardly, 90% of the examiners I run across would easily characterize your invention as a mental process and 99% of the APJs at the Board would as well. Examiner’s oftentimes get stuck using arguments they are familiar with rather than better arguments. The final office action you appealed was issued prior to the 2019 patent eligibility guidelines (PEG), which laid out mental process category of abstract ideas. The Board addressed the 2019 PEG starting on page 5 of the decision on appeal. I’ve seen this done many times in the past. An examiner will have presented arguments using the USPTO’s old guidance and the Board will trot out arguments involving the 2019 PEG. However, my arguments addressed the examiner’s old arguments and not the Board’s new arguments/findings. Them doing the same to you is nothing special.
    You see what the USPTO has done to you and think why is the USPTO out to get me?. The difference between you and I is that I have seen it done dozens of times before and know that they aren’t intentionally out to screw you because they do that to everybody. In other words, you aren’t special.
    Some of B arguments are new and refreshing
    Appellate judges aren’t looking for new and refreshing. They like fitting round pegs into round holes. Also, don’t confuse new for good. The “due process” arguments weren’t going anywhere.
    one of his arguments caught a nice remark from a judge during oral arguments
    Don’t confuse sarcasm with a “nice remark.” I listened to all the oral arguments … including where B’s (likely small) dog was barking in the background and the approximately 3 ½ minutes that the USPTO’s representative spent talking.
    News flash: The millions of working professionals and experts who did not discover the process for decades had computers and extensive computer networks, but I guess the preceding observation is just a common sense view from a person the law and due process should be protecting.
    News flash: Being able to repeat catch phrases from the law doesn’t mean you understand the law.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    May 14, 2022 12:34 pm

    Good luck, concerned. Like Curious, I am not sanguine about your chance for success, but it would be a salutary development if it should come to pass.

    Best of luck to Bud, as well. I agree that merely trying again that which has failed makes no sense.

  • [Avatar for concerned]
    concerned
    May 14, 2022 05:16 am

    B in my blue brief talks about people making statements as experts when they cannot possibly be experts. B continues with the observation why evidence matters, the evidence the USPTO and PTAB are ignoring.

    It probably explains why both USPTO examiners did not argue mental steps, both examiners were actually reading the file wrapper during the prosecution.

    People in my field, family and friends are mocking this patent process. A process where evaluators trivializes inventions they appear to know little about while adding their opinions that are not within the expressed language of the law.

    What is an inventive concept or significantly more? Common sense could start with a process millions of working professionals and experts had not discovered for decades. Of course, once the process is discovered, the evaluators trivialize the discovery as nothing much occurred in the way of a new and useful process.

    After the evaluators express their opinion, they dig in with their position. I preferred to let the 55 separate pieces of evidence do my talking, however, evidence does not seem to trump opinions.

    Win or lose, I respect B and I am proud to have him. B has been arguing evidence, expressed language of the law and many other things a common person can respect even in defeat. Some of B arguments are new and refreshing, one of his arguments caught a nice remark from a judge during oral arguments.

    What is difficult to accept is being told I have met the expressed language of the law, but not the evaluator’s version of the law that can be found somewhere over the rainbow. Or that the computer is just a tool to implement the abstract process. News flash: The millions of working professionals and experts who did not discover the process for decades had computers and extensive computer networks, but I guess the preceding observation is just a common sense view from a person the law and due process should be protecting.

  • [Avatar for concerned]
    concerned
    May 13, 2022 09:39 pm

    Curious:

    The invention does need a real time aspect. The overlooked SSDI benefit needs to be discovered in the person’s lifetime. Social Security is not paid to dead people or their estate. You are again showing your lack of knowledge of my subject field. Take some time to read the entire file wrapper.

    Your are right, Social Security does perform real time analysis on their data and it still overlooks the benefits for the people. Hence the need for my process. Airplane pilots are looking at real time data when the airplane crashes. I bet they would want a process that saves the day or would that just the underlying abstract process?

    The end result of my invention is the same end result of Diehr. It improved the existing subject matter process over the current art.

    BTW, I have a letter of intent from CGI. Have you ever heard of them? Only 12 billion in yearly revenue in the field of information technology. They must be idiots giving me a letter of intent based on your opinion of my invention.

    CGI is just waiting on the patent to act. I will tell CGI not to use a computer based on your recommendation that the computer is not needed. What should I tell them if CGI looks at me like I am stupid?

  • [Avatar for Curious]
    Curious
    May 13, 2022 09:12 pm

    It must have been really, really, really quick. BTW, you don’t have to believe me about Diehr repudiating the stupid idea of computer software being “mental steps.” You just need to read Stevens’ dissent.
    Without going back and relistening to oral arguments, I believe the Federal Circuit pressed you on this point. You didn’t have anything for them … because there was nothing to give them. If there was, I would have been making those arguments to the Board for years and years now.

    Totally frelling insane, and its way past time to call stupid for what it is.
    You think you are the first one to argue that the case law is f-ed up? More articulate attorneys than you or I have made countless (good) arguments before the Federal Circuit and the Supreme Court and almost all have gotten shot down at the Federal Circuit and all have been shot down at the Supreme Court.

    If Benson is good law, Enfish and McRO are bad law.
    I’ve addressed Benson many times on this blog. It is a terrible decision written by a questionable judge and based upon a non-existent understanding of the facts. However, it is Supreme Court law and it was cited with approval in both Alice and Bilski. Enfish and McRo were attempts to reign in the excesses of the Federal Circuit but they eventually got ignored – just like the decisions of DDR Holdings, BASCOM, and Berkheimer. BTW – Benson did not categorically say that software is unpatentable.

    Alice-Mayo is unworkable and causes inconsistent outcomes.
    Welcome to the world of patent law. Let me introduce you to the jurisprudence regarding claim construction.

    if you think there is an iota of clarity in Alice-Mayo you haven’t been paying attention
    It is clear enough that I can make an argument based upon it. This isn’t to say that the law reflects the statute in any way, shape, or form. Regardless, lots of attorneys have asked for clarification – the Federal Circuit is generally not inclined to provide such clarification.

    you’ll see a SCOTUS opinion to this effect (citing Glucksberg) as soon as Monday
    Bilski referred to “statutory stare decisis” as their basis for crafting the exceptions (i.e., rewriting the statute). I doubt your going to get much help from whatever the Supreme Court issues. None of it is going to overrule the Federal Circuit’s precedents or overrule Alice/Mayo/Bilski. You aren’t just fighting an uphill battle – you are trying to get to the moon without a rocket.

  • [Avatar for Curious]
    Curious
    May 13, 2022 08:41 pm

    Any time you want to put up your life savings against mine, we can meet and prove you can go through 1.5 million clients in real time. And that is Ohio alone.
    Does claim 1 recite real-time analysis? Not that I can see. Also, what does the “real time” aspect have to do with what you have invented? Determining who is eligible for benefits does not require a real time aspect. Moreover, its not like performing a real time analysis on data is not routine, conventional, and well-understood. It adds nothing (helpful) to the analysis.

    It took two professionals two years to do just 458 people per the evidence in the Official Record and 316 of those people were false positives. You do not have a clue what my invention does. Did you even brother reading the file wrapper?
    I’ve read a bit of the file wrapper and the specification. Your invention is a business method that could have been patentable 10 years ago — however, not today and not when the application was filed.

    I have the right attorney, win or lose
    Let me know when you have an allowed patent application.

    These concepts make the computer network perform. Without my concepts, the existing computer network has errors and oversights. With the concepts added, errors and oversights identified.
    In the parlance of the Federal Circuit, your improvement is not to the computer network but to the underlying abstract idea. The arguments you are presenting have already been shot down by the Federal Circuit in other cases.

    How is my concepts any different than Diehr adding a thermometer to better cure rubber? Any I might add the thermometer was use in commerce elsewhere.
    Are you making rubber? What is the end result of your invention? You “Notify Caseworker of Eligibility and Apply for SSDI” (steps 860, 965, 1225, 1325).

    I get it. You do not like my invention. But it was something many, many attorneys and other professionals never thought of with their mental capabilities
    You have a persecution complex. I don’t care about your invention. It doesn’t impact me or my clients. However, you have flooded this blog with comments for years and years. I held my tongue for the longest time because you and I have the same overarching goal and I wasn’t interested in offending you. However, when I saw the kind of arguments that your attorney was proposing to present to the Federal Circuit, I couldn’t resisting commenting.

  • [Avatar for concerned]
    concerned
    May 13, 2022 07:16 pm

    Curious:

    In addition, the Solicitor made the statement that the computer was just a tool to implement the abstract idea. Wrong!

    The computer implements the non routine, non conventional and non well understood concepts that allows 1.5 million clients to be screened in real time. Concepts never used in any commence, either individually or in combination.

    These concepts make the computer network perform. Without my concepts, the existing computer network has errors and oversights. With the concepts added, errors and oversights identified.

    How is my concepts any different than Diehr adding a thermometer to better cure rubber? Any I might add the thermometer was use in commerce elsewhere.

    I get it. You do not like my invention. But it was something many, many attorneys and other professionals never thought of with their mental capabilities.

  • [Avatar for concerned]
    concerned
    May 13, 2022 06:38 pm

    Curious:

    Now that is where you are definitely wrong when you say my invention does not need a computer.

    Any time you want to put up your life savings against mine, we can meet and prove you can go through 1.5 million clients in real time. And that is Ohio alone.

    It took two professionals two years to do just 458 people per the evidence in the Official Record and 316 of those people were false positives. You do not have a clue what my invention does. Did you even brother reading the file wrapper?

    I have the right attorney, win or lose.

  • [Avatar for B]
    B
    May 13, 2022 06:28 pm

    @Curious “I said more people — not a greater percentage. Address what I wrote and not what you think I wrote.”

    I know what you wrote. Respectfully, it was god-awful and I was being kind. It’s the percentages that count, and appellants from the PTO arguing the merits of Alice-Mayo over the last decade are batting 0.000. Time to swing for the stands or give up, because 0.000 is still 0.000. Even worse after the Yu v. Apple & Samsung opinion.

    “I just did a quick review of Bilski and Diehr and found no repudiation of mental processes being statutory ineligible subject matter.”

    It must have been really, really, really quick. BTW, you don’t have to believe me about Diehr repudiating the stupid idea of computer software being “mental steps.” You just need to read Stevens’ dissent.

    Re Bilski: “The Court is unaware of any argument that the “`ordinary, contemporary, common meaning,'” Diehr, supra, at 182, of “method” excludes business methods. . . . . But this fact does not
    mean that unforeseen innovations such as computer programs are always unpatentable.”

    The stupid thing about Bilski – the SCOTUS thought it was clarifying patent eligibility when it did the complete opposite. If there’s anyone who works south of Independence Ave and 1st Street, SE who thinks Bilski clarified anything, I haven’t met him.

    Further, Justice Steven’s concurrence in Bilski is nothing less than blithering, incoherent insanity. However, Stevens does raise one great point: “The Court attempts to justify this latter exception to § 101 as ‘a matter of statutory stare decisis.’”

    That’s it. The only justification of keeping this insanity going is stare decisis. Their history of violating constitutional separation of powers in patent law justifies even more violations of constitutional separation of powers.

    Totally frelling insane, and its way past time to call stupid for what it is.

    Finally, Benson held computer s/w patent ineligible. Enfish held the opposite. McRO is 100% mental steps. If Benson is good law, Enfish and McRO are bad law. Alice-Mayo is unworkable and causes inconsistent outcomes.

    I’m not saying we’ll win. I did: (1) demand even the slightest hint of clarity (and if you think there is an iota of clarity in Alice-Mayo you haven’t been paying attention); and (2) challenge the courts’ authority under the constitution to rewrite statutes from the bench, and there’s a distinct likelihood that you’ll see a SCOTUS opinion to this effect (citing Glucksberg) as soon as Monday. There’s a possibility that this same opinion will speak to stare decisis

    I’m tuning the Rule 28 brief this weekend.

  • [Avatar for Curious]
    Curious
    May 13, 2022 06:07 pm

    one statement from Curious illustrates his MISperceptions:

    “I get it … you want to break the system.”

    Most definitely not.
    I see your penchant for manufacturing distinctions without a difference in order to be disagreeable goes unabated. There is no real difference between fixing a broken system (which is what B is advocating for) and “break[ing] the system,” which I have long described as being broken. Why do you feel the need to generate a controversy where there is none? Your comment serves no (good) purpose.

    Showing that the system is already broken is EXACTLY the type of thing that provides the Supreme Court an opportunity to employ the Kavanaugh Scissors and CUT the Gordian Knot of their own making.
    Blah, blah, blah. The Supreme Court gets multiple petitions every session on 35 USC 101. The Supreme Court never lacks for “opportunity to employ the Kavanaugh Scissors.” What the Supreme Court needs is the right parties, the right technology, the right lower court decision, and the right framing of the issues. The Supreme Court is highly unlikely to repudiate their past decisions on the matter (which have tended to be unanimous). As such, what is needed is a vehicle by which the Supreme Court can reign in the excesses of the Federal Circuit so as to limit the damage caused by the Alice/Mayo test.

    Getting back to concerned’s comments …
    Judge Taranto even encouraged B to continue with his Washington v. Glucksberg argument, an argument Judge Taranto said he never heard argued on a patent case
    From the syllabus of Washington v. Glucksberg: Washington’s prohibition against “caus[ing]” or “aid[ing]” a suicide does not violate the Due Process Clause. Personally, I consider Taranto’s encouragement comparable to that of a law processor asking a student to further explain why he cited a case involving admiralty law in a matter involving family law. I think “mild amusement” (as opposed to genuine interest) accurately describes the basis behind Taranto’s encouragement.

    Forcing the Supremes to fix their own mess would make everyone’s job so much easier, from the high court down to the USPTO to inventors.
    What makes your case more worthy of consideration bearing in mind that the Supreme Court has shot down dozens of similar petitions for cert on the same issue?

    Interesting to me, neither examiner even breathe mental steps because their were fully aware of the evidence and prosecution. Both knew my solution cannot mentally happen
    Your invention does not require a computer. The Board found it easier to characterize the limitations as a mental process and went with that. They even threw you a bone by designating it a new ground of rejection.

  • [Avatar for Curious]
    Curious
    May 13, 2022 03:12 pm

    My first examiner says I should get my patent in a telephone conference, then magically I get a second examiner. I did not ask for this switch.
    You didn’t magically get a second examiner. I’ve made this point months ago, and I’ll reiterate it now. The first Office Action you received listed Hani Kazimi as the Primary, with another examiner as the non-Primary. Hani Kazimi is listed on the Examiner’s Answer. You had the same examiner throughout.

    The PTAB did not even go that far as the PTAB implied SSDI and their computer networks are a technology (page 13 of the PTAB decision.)
    I just read page 13. The PTAB made no such statement — explicitly or implied. I have seen FAR MORE technical inventions inventions described as being non-technical than what you have presented (even by the same APJ who wrote your decision).

    What I see is everyone working hard to deny me a patent when everyone agrees I met the law as written.
    Frankly, they don’t have to work very hard to deny you a patent based upon current Federal Circuit precedent. I’m sure the average examiner in TC3600 could whip up a rejection on your claims in 30 minutes (using canned statements) that would pass scrutiny from both the PTAB and Federal Circuit. Your application was filed after Alice came out. The outcome here should not be surprising.

    If you have seen all the PTAB decisions I have seen and read all the Federal Circuit cases that I have read in which claims were tanked under 101 and compared the claims of those applications to your claims, you would understand why I write what I do. You don’t have good facts on your side.

    Notwithstanding that I believe the Supreme Court was wrong in Alice, I believe the Federal Circuit interpreted Alice far more broadly (in a bad way) than justified. As such, I believe it is possible that the Supreme Court could (if they were so inclined, which they haven’t been) reign in the excesses of the Federal Circuit in interpreting Alice. The problem you are facing is that your facts are REALLY CLOSE to the facts of Alice. This makes it much harder for either the Federal Circuit of the Supreme Court to draw a line between Alice and your claims so as to make them patentable.

    I’ve made this point before. Look at the claims of Yu v. Apple (involving camera phones). Ask yourself, what better arguments could I make than the arguments that could be made there bearing in mind that Yu lost at the Federal Circuit and I believe cert was denied at the Supreme Court. I don’t believe you could honestly argue that you have better arguments to work with — on the contrary, I think you have far less good arguments to make. If Yu’s claims were tanked all the way up the line, why do you think your claims have any better chance?

  • [Avatar for Curious]
    Curious
    May 13, 2022 02:26 pm

    The additional elements are not well understood, routine or conventional. Forget the computer.
    No. Everything you claimed was the abstract idea and therefore did not qualify as additional elements. If you believe something qualified as additional elements beyond the computer, please identify what you believe these additional elements to be?

    How I identify a possible overlooked person has never be done, tracking the parent has never been done, how consent is waived has never been done.
    Mental process.

    You can’t lose more than 100%, which is the affirmance of Alice-Mayo from the PTO to the CAFC. Statistically speaking – your speaking complete nonsense.
    I said more people — not a greater percentage. Address what I wrote and not what you think I wrote.

    BTW, my first argument was 100% about precedent – Bilski and Diehr versus Investpic and Benson.
    I just did a quick review of Bilski and Diehr and found no repudiation of mental processes being statutory ineligible subject matter. If you want the Federal Circuit to ignore their own precedent, the Federal Circuit needs explicit statements by the Supreme Court — implied statements (the existence of which are highly questionable) aren’t going to cut it.

    It was the due process argument, however, that no one – not the Ass’t Solicitor or a single CAFC judge – could refute or even attempted to question.
    Arguments with no legs get ignored. I’ve addressed your due process arguments months ago. You got due process. You went to the Board. You went to the CAFC. Your disagreement with an agency’s decision and/or interpretation of case law does not give rise to a due process concern.

    If you want to argue ‘due process’ give me your best case (Supreme Court or Federal appellate case only) with facts closest to your facts and explain why there was a ‘due process’ problem. You should be able to cut and paste directly from your appellate brief and at the same time identify where this due process issue was raised before the Board.

    Your refusal to answer is noted.
    Arthrex involved the appointment of APJs at the Board. Why is that relevant to a 101 rejection? Hotchkiss v Greenwood is a 170 year old Supreme Court case that involved doorknobs. It is a case, as best as I can tell, not cited by the Supreme Court in Diehr, Bilski, Mayo, or Alice. Why should I care about these cases? R A B B I T H O L E S.

  • [Avatar for concerned]
    concerned
    May 12, 2022 11:31 am

    Anon:

    When I was listening to the oral arguments live, I felt deep down that the panel was looking for a way to clear up this whole patent mess. Judge Taranto even encouraged B to continue with his Washington v. Glucksberg argument, an argument Judge Taranto said he never heard argued on a patent case.

    Forcing the Supremes to fix their own mess would make everyone’s job so much easier, from the high court down to the USPTO to inventors.

    Interesting to me, neither examiner even breathe mental steps because their were fully aware of the evidence and prosecution. Both knew my solution cannot mentally happen.

  • [Avatar for Anon]
    Anon
    May 12, 2022 10:37 am

    Nice exchange (silly B? 😉 ) – but one statement from Curious illustrates his MISperceptions:

    I get it … you want to break the system.

    Most definitely not.

    Showing that the system is already broken is EXACTLY the type of thing that provides the Supreme Court an opportunity to employ the Kavanaugh Scissors and CUT the Gordian Knot of their own making.

  • [Avatar for concerned]
    concerned
    May 12, 2022 03:04 am

    Curious:

    So I should sit down with an examiner in an attempt to get my patent?

    My first examiner says I should get my patent in a telephone conference, then magically I get a second examiner. I did not ask for this switch.

    Then the USPTO and their Board refuse to look at evidence that possibly cannot be overcome, so they change rejection theories.

    I had a discussion on this forum with a primary examiner yesterday. He said he would not give me a patent either. I ask for definitions of significantly more and inventive concept. He gives me 2106.05. I give him 2106.05 Aii. He tells me SSDI is not a technology. The PTAB did not even go that far as the PTAB implied SSDI and their computer networks are a technology (page 13 of the PTAB decision.) The PTAB argued my process does not extend to another technology. Did Diehr, did McRO? Does s101 require the process and method be new and useful to at least two different technologies?

    What I see is everyone working hard to deny me a patent when everyone agrees I met the law as written. I really feel I could sit down with 100 different examiners and the marching orders will be deny, deny, deny. Where are my due process rights if the outcome(s) seem pre-determined by throwing everything against the wall and see what sticks?

    There has been a lot of injustices in this country that were finally overcome and reversed eventually. Perhaps this case is the one to reverse this patent system injustice?

    We stand here, keep our integrity, play by the rules, and fight (win or lose.) And you automatically think I will lose. Maybe, maybe not.

  • [Avatar for B]
    B
    May 11, 2022 08:25 pm

    @ Curious “I can all but guarantee you that even more people have lost at the Federal Circuit arguing that the CAFC’s precedent on a particular issue (of which there is a lot, unfortunately) is wrong.”

    You can’t lose more than 100%, which is the affirmance of Alice-Mayo from the PTO to the CAFC. Statistically speaking – your speaking complete nonsense.

    BTW, my first argument was 100% about precedent – Bilski and Diehr versus Investpic and Benson. It was the due process argument, however, that no one – not the Ass’t Solicitor or a single CAFC judge – could refute or even attempted to question.

    @ Pro Say “May the CAFC take the principled stand by doing their part to make right that which SCOTUS got so very, very wrong.”

    Be prepared for an opinion that doesn’t touch on a single issue b/f the CAFC (In re Villena) or that is factually distorted beyond all belief (Chamberlain). Think Anon’s silly, but credible, monkey-banana-firehose metaphor

  • [Avatar for B]
    B
    May 11, 2022 07:11 pm

    @ Curious “You are going down useless rabbit holes now.”

    The question is a fair one.

    Your refusal to answer is noted.

  • [Avatar for concerned]
    concerned
    May 11, 2022 06:06 pm

    Curious:

    The additional elements are not well understood, routine or conventional. Forget the computer.

    How I identify a possible overlooked person has never be done, tracking the parent has never been done, how consent is waived has never been done.

    Forget the computer, which B stressed at least twice in the oral arguments, the process and its elements in their combination, or individually, have never been done.

    Even PTAB did not call it zero technology, the PTAB said the improvement did not affect another technology beyond SSDI (page 13). That sure seems like an admission that I improved at least one technology.

    No grandstanding. I really believe I meet the law and PTAB conceded the same, just not there unspecified version.

  • [Avatar for Curious]
    Curious
    May 11, 2022 05:56 pm

    Hotchkiss v Greenwood was about doorknobs, but tell me this: what was the CAFC’s Arthrex decision really about?
    You are going down useless rabbit holes now.

  • [Avatar for Curious]
    Curious
    May 11, 2022 05:53 pm

    Respectfully, CAFC precedent is unworkable trash resulting in idiotically inconsistent outcomes, and the approach you suggest has worked for exactly ZERO people appealing from the PTO.
    I can all but guarantee you that even more people have lost at the Federal Circuit arguing that the CAFC’s precedent on a particular issue (of which there is a lot, unfortunately) is wrong.

    Also, consider the possibility that the CAFC would appreciate clarity from the SCOTUS
    Again, wrong case to do that. You need to throw the CAFC a bone in terms of some technology. Give them an opportunity to distinguish the facts of your case from the facts of Alice.

    I get it … you want to break the system. However, that isn’t going to get you a win. I think I made this point before, but your best chance of winning would have been to amend the claims with the help of the examiner and get your win there.

    And just think of it, you definitely got the better panel that day as you could have been stuck with the combination of Prost and Dyk.

    SCOTUS in Alice defined abstract (Step 1) as well understood, routine and conventional based on evidence.
    You’ve got the Supreme Court’s weasel-words mixed up. Step 2B involves looking for something substantially more from the additional elements, which involves something more than the performance of well-understood, routine, and conventional activities. There are no additional elements in your claims (as far as I know) beyond a conventional computer. Regardless, the “well understood, routine and conventional” refers to the additional elements — not the abstract idea.

    How do we get to step 2 to apply an abstract test if we cannot get pass the Alice definition of abstract on step 1?
    Your characterization does not seem accurate. There is no “abstract test” at step 2.

    Have not courts ruled in favor of inventors and avoid step 2 if step 1 is deemed non abstract?
    They have. However, your claims need more than the mental steps being recited. Your attorney spent a lot of time arguing that the Supreme Court repudiated the “mental steps” category of abstract ideas. However, I don’t see where Alice did that — and neither did the judges sitting on the panel. If you want something patentable, then modify the claims so that they look more like a data processing invention — not a pure business method as it looks now.

    Based upon how 35 USC 101 was written, this invention should be patent eligible. The vast, vast majority of all applications should be patent eligible. However, when dealing with a court of law you need to abide by their precedent. Asking them to change their own precedent is just asking to lose. I assume you went to the CAFC to win — not to make some grand gesture. If so, you need to work with their precedent regardless of how inconsistent and unworkable it is. Again, it would be far easier to convince an examiner to allow the application (based upon claim amendments) than it would be to have the Federal Circuit change their mind.

    I’m trying to be helpful, but if grand gesture making is your thing, then feel free to ignore me.

  • [Avatar for B]
    B
    May 11, 2022 05:33 pm

    @Curious “If the Federal Circuit is going to stick its neck out on the line, they are going to do it for something more than identifying overlooked adults who are eligible for Social Security Disability Insurance (SSDI) benefits”

    Hotchkiss v Greenwood was about doorknobs, but tell me this: what was the CAFC’s Arthrex decision really about?

  • [Avatar for B]
    B
    May 11, 2022 05:28 pm

    @Curious “ We all know that the case law is replete with undefined terms. However, that’s their precedent. If you really wanted to win at the Federal Circuit, you needed to reign in your arguments and work with their precedent.”

    Respectfully, CAFC precedent is unworkable trash resulting in idiotically inconsistent outcomes, and the approach you suggest has worked for exactly ZERO people appealing from the PTO. What’s that quote about insanity and doing the same thing again and again?

    Also, consider the possibility that the CAFC would appreciate clarity from the SCOTUS

  • [Avatar for concerned]
    concerned
    May 11, 2022 05:13 pm

    Curious:

    SCOTUS in Alice defined abstract (Step 1) as well understood, routine and conventional based on evidence.

    How do we get to step 2 to apply an abstract test if we cannot get pass the Alice definition of abstract on step 1? Have not courts ruled in favor of inventors and avoid step 2 if step 1 is deemed non abstract?

  • [Avatar for Curious]
    Curious
    May 11, 2022 04:48 pm

    Appellant Killian’s request to the Federal Circuit was clear: Acknowledge that Alice-Mayo is an unworkable and capricious test that the USPTO uses to routinely violate due process of law, and without doubt the Supreme Court will take certiorari.
    We all know that Alice-May is an unworkable and capricious test. However, this application is not the right vehicle to change things at the Supreme Court (or the Federal Circuit).

    If the Federal Circuit is going to stick its neck out on the line, they are going to do it for something more than identifying overlooked adults who are eligible for Social Security Disability Insurance (SSDI) benefits. There is zero technology implicated in this invention. Add some technology into the mix (e.g., what was found in Yu v. Apple) and perhaps one can convince the Federal Circuit to urge the Supreme Court to fine tune the Alice-Mayo test. However, for the Federal Circuit to rule for your client, they would have to outright repudiate Alice-Mayo — something the Federal Circuit cannot do. I think they made the point during oral arguments that they are bound by their own precedent.

    We all know that the case law is replete with undefined terms. However, that’s their precedent. If you really wanted to win at the Federal Circuit, you needed to reign in your arguments and work with their precedent. Granted, that was going to be a tough row to hoe given the facts, but that was your best chance of prevailing.

  • [Avatar for Pro Say]
    Pro Say
    May 11, 2022 04:44 pm

    We know thee, inventive concept: Thy name be 102 / 103.

    May the CAFC take the principled stand by doing their part to make right that which SCOTUS got so very, very wrong.

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