Amicus Brief Backing Inventor’s Eligibility Petition to SCOTUS Says 101 Exceptions Constitute ‘Judicial Legislation’

“[The brief] suggested that the judicially created exceptions rise to the level of ‘judicial legislation’ and therefore operate outside of Article I and Article III of the Constitution.”

Take Action - https://depositphotos.com/10563036/stock-photo-take-action-green-road-sign.htmlOn August 5, US Inventor and Eagle Forum Education & Legal Defense Fund (Eagle Forum ELDF) jointly filed an Amicus Brief supporting inventor David Tropp’s petition for a writ of certiorari to the U.S. Supreme Court (SCOTUS) regarding whether Tropp’s method claims are patent-eligible under 35 U.S.C. 101.

Tropp owns two patents relating to luggage lock technology that enables airport screening of luggage while still allowing the bags to remain locked. In July, just days after the Court denied cert in American Axle, Tropp asked the High Court to answer the question: “Whether the claims at issue in Tropp’s patents reciting physical rather than computer-processing steps are patent-eligible under 35 U.S.C. § 101, as interpreted in Alice Corporation Pty v. CLS Bank International, 573 U.S. 208 (2014).”

A Textualist Interpretation

The US Inventor/ Eagle Forum ELDF brief argued that the petition should be granted so that SCOTUS can adopt a textualist interpretation of the statute and end the exceptions created by the judiciary. The supporters argued that a textualist approach would not allow for the implied exceptions to patent eligibility. They explained that the language of the statute is expressly broad and covers “process” as well as “machine, manufacture, or composition of matter.” Furthermore, nothing in the statute excludes an invention simply because it is “abstract,” which they argued is chameleon-like in its justification for invalidating many useful inventions. The brief noted that the Court’s judicially created exception began as a harmless limited suggestion and has since “turned into a raging fire in lower courts that is destroying much that was good about our patent system.”

US Inventor and Eagle Forum ELDF argued patent eligibility should be an undemanding threshold test that is easily met except in extraordinary situations. They argued that if an invention satisfies the more demanding tests of novelty and obviousness, then it would be contrary to the statute to find that the invention is patent ineligible. They likened the current patent eligibility statute to putting the cart before the horse, creating a dysfunctional result. The brief said that textualism is used across many fields of law and is essential to patent law because the “[c]ourts are not suited for crafting exceptions to patent eligibility” since they operate without the benefit of congressional hearings, public comment, and feedback directly from inventors. Restoring broad patent eligibility as enacted by Congress is long overdue, as abstractness is not mentioned in the statute, said the brief.

Judicially Created Limitations

The brief next argued the judicially created exceptions impose limitations and situations onto 35 U.S.C. 101 never sought by Congress. The brief first noted that there have been at least four SCOTUS decisions that have read limitations and conditions into section 101 concerning subject matter eligibility that were not expressed by Congress. Citing to the four cases, the brief noted that these cases confirm that the exceptions were judicially created and not enacted by Congress, meaning that the Court’s decisions have increasingly assumed the legislative function.

The brief argued that the destabilization of patent subject matter jurisprudence has affected even the United States Patent and Trademark Office, causing them to need to take more than 50 pages to discuss the judicially created exceptions to subject matter eligibility. “Judicial Exception” can be found 292 times in section 2106 of the Manual for Patent Examination Procedure, which would be non-existent under a textualist approach. To further back this point, the brief cited to various statements by Paul Michel, the former Chief Judge of the U.S. Court of Appeals for the Federal Circuit, who has criticized the line of cases that have created these exceptions.

US Inventor and Eagle Forum ELDF next pondered what Thomas Edison would think of the current judicially created barrier of patent eligibility. They reasoned that Edison would likely have been baffled by the judicial exceptions and thus chosen to pursue different interests, thus depriving the world of his inventions. The brief noted that, from 2012 to 2016, the United States was ranked first in the world for its patent system, but in 2017 it fell to 10th and then to 12th in 2018, after the judicially created exceptions.

The brief concluded this argument by noting that the loss in the vitality of the U.S. patent system has corresponded with an economic decline in the United States. Starting the year after Alice was decided, real wages have grown by less than 1% per year. The national debt and government spending have nearly doubled during the same span. Without the incentive of new inventions to lift the U.S. economy, the brief predicted a downward spiral in real wages adjusted for debt looms. These statistics are in contrast to the period when Edison was encouraged to invent by the then-strong patent system.

Contrary to the Constitution

The brief’s final argument said that the judicial narrowing of patent eligibility is contrary to the Constitution and thus warrants granting of the petition. The authors noted that the drafters of the Constitution considered and ultimately rejected three times a proposal that would have allowed the judiciary to participate in the legislative process. The first clause of the Constitution must be read in conjunction with the Patent Clause, which when read together prohibit courts from escaping with any legislative power. If judicial legislation were permitted, it would derail the procedural and substantive constraints of the Constitution that are designed to limit the legislative power of the federal government and its branches.

US Inventor and Eagle Forum ELDF suggested that the judicially created exceptions rise to the level of “judicial legislation” and therefore operate outside of Article I and Article III of the Constitution. They argued that since Congress defined the scope of patentable subject matter eligibility in section 101, its explicit terms should have ended the judicial inquiry and the courts should have looked no further.

The brief said, that at its most fundamental level, the present case is about the allocation of powers between the branches of the government. No court should be able to create or apply judicial exceptions to patent subject matter eligibility because it should be prohibited from exercising such power in defiance of the Bicameral and Presentment Clauses. The authors concluded:

“Those two clauses spell out the processes by which the two houses of Congress bring their diffused power to bear on federal lawmaking. In essence, the Court is ‘not at liberty to rewrite the statute passed by Congress and signed by the President.’ The Court should interpret Section 101 as written, and ‘not engraft [its] own exceptions onto the statutory text.’”

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96 comments so far. Add my comment.

  • [Avatar for Anon]
    Anon
    August 25, 2022 11:02 am

    Curious,

    You are the one making assumptions – as I have made none.

    That (or both), you are attempting to prevaricate by trying to twist what I have said.

    On a more recent thread, you are called out to clarify whether or not you have made the admission that you work for the patent office.

    With tactics that you are displaying here, you are quietly indicating an affirmative to that position.

    (it is not a good look for you)

  • [Avatar for Curious]
    Curious
    August 24, 2022 01:59 pm

    You ASSume that I have been wrong in 5 posts in a row.
    No. Your assumption is wrong. My assumption was that the chances of you admitting to be wrong even once was miniscule (even if you were plainly wrong), so such an admission 5 posts in a row would be next to impossible.

    You are like the Board. You’ll double down on a bad argument rather than admit that you got something wrong.

  • [Avatar for Anon]
    Anon
    August 24, 2022 01:50 pm

    Curious,

    You do enjoy your logical fallacies, so you not…

    You have a better shot of having Anon admit to being wrong in 5 posts in a row (in other words, it is a near impossibility).

    You ASSume that I have been wrong in 5 posts in a row.

    That is simply ASSuming facts not in evidence.

    Keep digging.

  • [Avatar for Curious]
    Curious
    August 23, 2022 06:22 pm

    When the CAFC has to lie to get to an end, it’s more than just close.
    It was NEVER close. Once Alice became the law of the land (sorry Anon, Alice is the law of the land whether you like it or not), those claims were DEAD ON ARRIVAL. Those claims would probably still be dead even if the CAFC had worked the last 8 years to cabin Alice. We all know that the CAFC didn’t. Rather, they expanded the reasoning of Alice and created so much precedent that under NO CIRCUMSTANCES were those claims going to pass under 101 absent. You are now left hoping for (i) an en banc decision by the Federal Circuit clear cutting the last 8 years of their jurisprudence or (ii) SCOTUS changing their mind. Judges hate admitting that they were wrong and both would require a great many judges to admit that they were horribly wrong. Do you harbor any illusion that this is going to happen? You have a better shot of having Anon admit to being wrong in 5 posts in a row (in other words, it is a near impossibility).

  • [Avatar for B]
    B
    August 23, 2022 05:17 pm

    @ Curious “They mispresent facts and the law all the time. That being said, this was not a “close case.” Forget all of the CAFC precedent they could have relied upon, Alice was close enough that they need rely upon Alice alone.”

    When the CAFC has to lie to get to an end, it’s more than just close, and the CAFC never once referenced a single point of law from Alice, but relies on misrepresentations and on CAFC precedent

  • [Avatar for Curious]
    Curious
    August 23, 2022 03:33 pm

    Curious – I can respectfully disagree with you but when the CAFC prints outrageously dishonest things, I think that makes my point
    My dislike for the CAFC should be well known as I have called them out on numerous occasions over the years on this blog. They mispresent facts and the law all the time. That being said, this was not a “close case.” Forget all of the CAFC precedent they could have relied upon, Alice was close enough that they need rely upon Alice alone.

    Not that its going to help you (in fact), but if you do want to go to the Supreme Court, you now have a precedential opinion to work with — you were never going to the Supreme Court on a R36 affirmance.

  • [Avatar for B]
    B
    August 23, 2022 03:15 pm

    @ Curious, Anon

    Guys – concerned was just Chen’ed in an opinion that came out today.

    Multiple outrageous misrepresentations, and a total pass on “inventive concept” and due process of law

    Curious – I can respectfully disagree with you but when the CAFC prints outrageously dishonest things, I think that makes my point

  • [Avatar for Curious]
    Curious
    August 23, 2022 02:51 pm

    That you struggle to see that this invokes legal ethics is just not a good look to have, let alone one that you appear to be boasting about.
    That you struggle to cite to any support (legal or otherwise) for you position is not a good look to have. You are making serious allegations – that someone is violating their oath. However, you back these allegations up with NOTHING. You don’t cite case law. You don’t cite law articles. You don’t cite anything.

    As an attorney, if you are advocating for a particular position, you should know the relevant law. What is the relevant law regarding what constitutes failure to support the Constitution? Why haven’t you cited it? I kowtow to the law – not your subjective feelings as to what the law should be. Show me the law and you have a fair chance of changing my mind. Show me nothing and I’ll continue to ignore you. The ball is in your court. Are you going to fumble it?

    Supporting (or defending) the Constitution is called out ANY time that you present yourself as an attorney and are advocating as to what the law IS.
    LOL. Which means, according to you, that anytime there is a dispute over what the law is there is one person that is supporting the Constitution and another person that is violating their oath. Do you not see how unreasonable your position is? Do you not understand this unreasonableness is why your position has gotten zero traction over the years?

  • [Avatar for Anon]
    Anon
    August 23, 2022 02:39 pm

    Keep digging Curious, that’s sure to get you out of that hole you are in.

    (Trying to spin “having a viewpoint” as somehow different than advocating)….

    That you think this to be me “making this up,” continues to show how sad you are as an attorney.

    Even as you advocate in this forum under a pseudonym (as do I – so no need to go down that rabbit hole), you still have an ethical duty whenever you are advocating. You are presenting (to the public) how an attorney is viewing the law. Supporting (or defending) the Constitution is called out ANY time that you present yourself as an attorney and are advocating as to what the law IS.

    Quite in fact, you (errantly) attempted to paint my position as merely what I would want the law TO BE (while asserting that what you are advocating IS what the law IS).

    That you struggle to see that this invokes legal ethics is just not a good look to have, let alone one that you appear to be boasting about.

  • [Avatar for concerned]
    concerned
    August 23, 2022 02:12 pm

    The specs were not in the joint appendix, yet the CAFC found those specs. Amazing!

    And the blue brief stated exactly where in the official record the evidence was filed.

    The Board is the fact finder regardless if the facts they find are not correct?

    Does the official record count, yes or no?

  • [Avatar for Curious]
    Curious
    August 23, 2022 01:47 pm

    Actually the blue brief on page 22 of 78 indicates what the evidence shows.

    Oral hearing at 1:30 states what the evidence shows. No follow up questions by the court.
    You (or your attorney) are not the fact finders. You don’t get to say what the evidence shows. You can argue that the evidence shows something, but the Board is the fact finder and the Federal Circuit reviews the Board’s findings for substantial evidence, which is a very deferential standard. Moreover, since these documents were not included in the joint appendix, the Federal Circuit had no way of reviewing them.

    Appellate practice hint #1: arguing the evidence/facts is almost always a losing proposition because the standard of review is so deferential.
    Appellate practice hint #2: pick your best 2 or 3 arguments is stick with those. You only have so many words to make your argument. Use those words to develop your best arguments. B argued everything but the kitchen sink — there is no way he could have properly developed all of those arguments.

    And according to my attorney, the entire record shall be reviewed for the appeal, not pick and choose like the CAFC did with the specs. The record shows what the evidence reveals.
    Not in the joint appendix, not looked at.

    I wondered how the court would try to get pass the evidence. Nobody will touch it.
    Because nobody cares. In any application I prosecute I could submit dozens of references that show that people practicing the prior art didn’t employ my invention. It is a trivial thing to do. It isn’t special. It has very little probative weight.

  • [Avatar for Curious]
    Curious
    August 23, 2022 01:30 pm

    Here’s hint: your views do NOT in fact support the Constitution, and what is so very sad that as an attorney, you STILL do not seem able to grasp this even after it has been pointed out to you.
    I forget to address this initially. Having a “viewpoint” does not constitute not supporting Constitution. This goes to my earlier point of:
    You don’t manifest your defense any different than I manifest my alleged lack of support. What consequential acts have you engaged in to “defend” the Constitution?
    Having a “viewpoint” is not an act so as to violate one’s oath. Read the literature regarding what constitutes supporting and/or defending the Constitution. None of it comports to your interpretation. You are just making sh_t up.

    Sorry, but I am correct (even if no one mirrors the arguments, that does not mean that I am incorrect).
    Then cite some case law (or anything for that matter) that supports your contention that having a “viewpoint” is sufficient basis to violate one’s oath. BTW, your feelings on this matter do not constitute support.

    It only makes you even more decrepit.
    The meaning of “decrepit” is “elderly and infirm” or “worn out or ruined because of age or neglect” (thanks Google!). I’m not sure your adjective fits. But you be you – make stuff up as you go along.

  • [Avatar for concerned]
    concerned
    August 23, 2022 12:55 pm

    Actually the blue brief on page 22 of 78 indicates what the evidence shows.

    Oral hearing at 1:30 states what the evidence shows. No follow up questions by the court.

    And according to my attorney, the entire record shall be reviewed for the appeal, not pick and choose like the CAFC did with the specs. The record shows what the evidence reveals.

    I wondered how the court would try to get pass the evidence. Nobody will touch it.

    Two reporters have already called us. Maybe we should show them what is what.

  • [Avatar for Anon]
    Anon
    August 23, 2022 12:43 pm

    Curious,

    I am not the one ignoring reality.

    Sorry, but I am correct (even if no one mirrors the arguments, that does not mean that I am incorrect).

    YOU are definitely part of the problem if you are unwilling to actually support the Constitution when one Branch attempts to act like it is above that law.

    Perhaps you enjoy kowtowing to something that is plain wrong.
    Perhaps you really do not understand why something is plain wrong.

    But please, stop pretending that your role as an attorney is ANY justification for your choices in ignoring actual reality.

    It only makes you even more decrepit.

  • [Avatar for Curious]
    Curious
    August 23, 2022 11:58 am

    Apparently, the CAFC is struggling with those issues you just know about better than everyone in the room here.
    No. Apparently Chen decided to give everyone a tour de force recap of patent eligibility law as he shot down everything you argued.

    This line caught my attention:
    While there are close cases under the Alice/Mayo standard, the ’042 application does not present such a close case.
    Chen must have been reading my comments on this blog.

    As for the “evidence” that Concerned has been so excited about, Chen writes:
    Finally, while Mr. Killian refers, rather obliquely, to fifty-five documents allegedly presented to the examiner and the Board, Mr. Killian does not explain on appeal what specifically these fifty-five documents show, nor did he include them in the joint appendix. In his opening brief, Mr. Killian said about these documents only that “there are fifty-five separate documents of unquestioned veracity and efficacy entered into evidence that support Appellant’s position.” Appellant’s Br. 12. We find that Mr. Killian forfeited any argument on appeal based on those fifty-five documents by failing to present anything more than a conclusory, skeletal argument.
    Conclusory, skeletal argument? Ouch.

    Now let’s get down to brass tacks. Concerned (once the en banc request is denied as well as the petition for cert) will be able to take his application back down to the Examiner. The problem that concerned is going to face before the USPTO is that this application now has a big red star on it — a precedential decision by the Federal Circuit explaining how this isn’t even a “close case.” He would have been better off with a Rule 36 affirmance. With this “big red star” there will be a lot of internal pressure to make sure this never gets allowed. That’s the danger of going to the Federal Circuit — they can make things worse for you.

  • [Avatar for Curious]
    Curious
    August 23, 2022 11:36 am

    Way to miss the point about the FACT that the Supreme Court does NOT in fact to make up anything at all about what the law IS.
    Way to ignore reality. The reality is that the interpreter has the final say as to what the source material says.

    Here’s hint: your views do NOT in fact support the Constitution, and what is so very sad that as an attorney, you STILL do not seem able to grasp this even after it has been pointed out to you.
    Here’s a hint: you’ve been talking up this same line of thinking about bar oaths and supporting/defending the Constitution for how many years now? How many people have found this line of thinking so persuasive that they have taken it up themselves and repeated it? I think that number is a grand total of: zero. I’m sorry, you admonishments fall on deaf ears because there is no substance behind it. However, feel free to keep repeating it — just don’t feel bad when everybody ignores you.

  • [Avatar for concerned]
    concerned
    August 22, 2022 06:36 pm

    This is my first patent rodeo and I realized, upon my very first Office Action, there is something horribly wrong in the patent environment.

    And my opinion keeps getting lower and lower of the process.

  • [Avatar for Anon]
    Anon
    August 22, 2022 05:06 pm

    The Alfred E Neumann Award of the day goes to Curious for his:

    There is little difference between what I think the law should be and what Anon/B thinks the law should be. However, what the law should be is different than what the law actually is, as that law has been interpreted by SCOTUS and the CAFC and applied by the USPTO. I recognize this, but I’m not sure they do.

    Way to miss the point about the FACT that the Supreme Court does NOT in fact to make up anything at all about what the law IS.

    Your version places them ABOVE the Constitution, which I defend and that you support.

    Here’s hint: your views do NOT in fact support the Constitution, and what is so very sad that as an attorney, you STILL do not seem able to grasp this even after it has been pointed out to you.

  • [Avatar for B]
    B
    August 22, 2022 03:02 pm

    @ Curious “I’m going to have to lay the blame for your lack of understanding of the law at the feet of your current and/or past attorneys”

    I know you’re all about giving up on your clients’ IP when confronted with adversity, but there’s nothing lawful or constitutional about what the PTAB did to concerned’s patent claims.

    But please, explain how a test based on undefined terms pass 5A due process, because I couldn’t get the PTO Solicitor to explain or even use the terms “inventive concept” and “significantly more” during oral hearing despite some serious mocking.

    Despite the fact that the CAFC has been begging for clarity for a decade on Alice-Mayo, all this is apparently perfectly clear to you and ten other people.

    BTW, we’re nearing MONTH FOUR after oral hearing for concerned’s case and still waiting for an opinion despite concerned drawing an Alice-loving, anti-patent, nightmare panel. There are no other cases from the May oral hearing docket still waiting for an opinion, and 98% never take 3 months.

    Apparently, the CAFC is struggling with those issues you just know about better than everyone in the room here.

    Ask yourself: What more does the CAFC desire from the SCOTUS on Alice more than clarity, and how does one force the SCOTUS to take cert. in view of American Axle?

    Also, explain how Enfish is good law if Benson is still good law. Because there’s an “inventive concept” in the Enfish claims?

  • [Avatar for concerned]
    concerned
    August 22, 2022 02:58 pm

    Recapping wisdom learned from Curious:

    Novel and solves problem equals no patent.

    USPTO uses analysis, not evidence.

    SCOTUS can write statements that are not true regarding mental steps.

    And there is case law that supports all this wisdom? I may have to admit one day the system got me.

  • [Avatar for concerned]
    concerned
    August 22, 2022 02:41 pm

    Novel and solves a problem= Not patentable.

    Then why do we have a patent law and the USPTO?

    I could also argue my process brings compliance to law but the Board already said my claims do no such thing. Of course, without explanation.

  • [Avatar for Curious]
    Curious
    August 22, 2022 02:06 pm

    The lame is so very strong in you.
    Classic examiner way of arguing. Ostensibly address a single point and ignore everything else. I guess you just have to be you.

    Alice did not say do not honor your own MPEP and memos.
    The USPTO’s “MPEP and memos” is worse than Alice. The USPTO was working off of Federal Circuit case law, which took Alice and amped it up a couple of notches. From reading your claims and knowing how the USPTO has operated the last 8 years, it was any easy prediction to make that your claims would be rejected under 101 and affirmed by the PTAB.

    I do not see the USPTO playing by any stated rules. So now I know the process is unfair, not backed by any rule of law, and I just accept it?
    I’m going to have to lay the blame for your lack of understanding of the law at the feet of your current and/or past attorneys. If the vast majority of everybody else knows these rules and you don’t, then that is a you problem.

    There is little difference between what I think the law should be and what Anon/B thinks the law should be. However, what the law shouldbe is different than what the law actually is, as that law has been interpreted by SCOTUS and the CAFC and applied by the USPTO. I recognize this, but I’m not sure they do. As the law has been interpreted and applied, your claims are not patent eligible under 35 USC 101. At no point subsequent to Alice would I have expected your claims to have been patent eligible under 35 USC 101. You had a shot post-Bilski and pre-Alice, but that is not the legal realm we live in anymore.

    B and Anon belabor under the assumption that the CAFC and/or SCOTUS will change their mind if the right arguments could just be presented to them. I lived in that dream world for some time myself. However, 8 years post-Alice and I have little doubt that neither the CAFC nor the SCOTUS will ever change their mind. The vast majority of the good arguments have already been made (and rejected). If the CAFC and/or SCOTUS were even marginally inclined to change course, we would have seen some indication of it. However, SCOTUS hasn’t given us even a whiff of interest, and there are still too many anti-patent judges at the CAFC to get us anything meaningful out of them. While one has to admire B’s determination to effect a change, he’s trying to bring down a brick wall with a wet noodle.

    Novel and solves a problem is patentable, even if abstract.
    No – not patentable even if novel and solving a problem. This is pretty straight-forward Federal Circuit law that they have repeated numerous times since Alice. This is why your evidence doesn’t help.

    My attorney argues in the blue brief that Alice has rules and the USPTO is not following said Alice rules.
    Good luck what that.

    As you know, Alice has used evidence as to novelty.
    As you know, the invention in Alice was deemed directed to ineligible subject matter. Alice doesn’t help you. Again, you had a chance pre-Alice. Post-Alice, your claims were dead on arrival.

  • [Avatar for B]
    B
    August 22, 2022 01:09 pm

    @ Curious “Not my problem if you never read Benson close enough to realize only 6 justices participated.”

    The lame is so very strong in you.

  • [Avatar for concerned]
    concerned
    August 22, 2022 12:39 pm

    My attorney argues in the blue brief that Alice has rules and the USPTO is not following said Alice rules.

    As you know, Alice has used evidence as to novelty.

  • [Avatar for concerned]
    concerned
    August 22, 2022 12:09 pm

    No I did not know the USPTO would not play by their own rules. Alice did not say do not honor your own MPEP and memos.

    I do not see the USPTO playing by any stated rules. So now I know the process is unfair, not backed by any rule of law, and I just accept it?

    Novel and solves a problem is patentable, even if abstract. The evidence goes to those facts and the USPTO did not argue any of the things you stated about my evidence. Why? Because I could counter argue any thing they write.

  • [Avatar for Curious]
    Curious
    August 22, 2022 11:47 am

    (Mine is stronger than ‘support,’ that is, it expressly uses “defend.”
    FYI – the 4 largest states (by population) just use “support.”

    As attorneys — ESPECIALLY as attorneys — we are called to “support” (and I do prefer defend) the actual limitations of the judicial branch, and in those matters especially in which THAT Branch exceeds its authority, THAT support is NOT “well, they can call it whatever they want to.”
    A distinction without a difference. You don’t manifest your defense any different than I manifest my alleged lack of support. What consequential acts have you engaged in to “defend” the Constitution? Me telling my client this how the Supreme Court is interpreting a particular statute does not constitute ‘not supporting the Constitution.’ Me giving my opinion on this blog as to why particular arguments are not going to be persuasive does not constitute ‘not supporting the Constitution.’ You really should lighten up on this line of attack – it gets you nowhere.

  • [Avatar for Curious]
    Curious
    August 22, 2022 11:46 am

    Your “gotcha” is lame and pedantic , now go sit in the back of the bus while repeating your mantra “stare decisis, stare . . . .”
    Not my problem if you never read Benson close enough to realize only 6 justices participated. As for another “gotcha,” it is “statutory stare decisis,” which is harder to overcome that normal stare decisis. The difference is that it is much harder to amend the Constitution than a statute. As such, the Court will be more amenable to revisit a decision interpreting the Constitution than a decision interpreting a statute.

    That said, when I see a reply like “three justices recused themselves in Benson,” I can smile knowing a substantive response is lacking.
    I forget, did you work at the USPTO? You argue like they do. You pick a handful of statements, respond to them, and then ignore everything else.

    For example, you ignored by comment about the number of Justices that was in the majority of Alice that are still at SCOTUS.
    You also ignored my comment regarding In re Google Technology Holdings.
    You also ignored my comment about the CAFC being bound by CAFC precedent.
    You also ignored my comment regarding how Dobbs is an entirely different realm than this issue and comparing the two is a futile effort.
    You also ignored my many observations regarding your comment that “SCOTUS wont deny cert if the CAFC holds Alice unconstitutional.”
    You also ignored my observation as to how uninterested the CAFC was in what the Solicitor had to say during oral arguments.
    You also ignored my observation that Bilski, Benson, and Flook all contain a similar and very relevant quote.
    You also ignored my observation about Chakrabarty.
    I could go on, but I think the horse is dead already.

    The CAFC could remand back to the USPTO to address my evidence, thus avoid all the other issues.
    As I have alluded to before, your evidence isn’t particularly persuasive. Your evidence is that your process hasn’t been performed before. I suggest you familiarize yourself with Two Way Media v. Comcast Cable, 874 F.3d 1329 (Fed. Cir. 2017). Two Way Media argued that the District Court ignored its evidence regarding the novelty/nonobviousness of the invention. However, the Federal Circuit found no error in the district court rejecting that evidence.

    The evidence argument has been preserved throughout.
    Again, your evidence is that the process is novel. That’s not going to save it regarding patent eligibility.

    what about a little Berkheimer stare decisis on addressing the evidence
    One, Berkheimer is effectively dead already. Two, Berkheimer involved that standard regarding Summary Judgement (Atrix involved the similar standard regarding 12b6). These standards don’t apply at the USPTO.

    I bet blindly he never had a client that had evidence from every possible user supporting the argument he was making.
    Your problem is that your evidence as to novelty doesn’t support your argument regarding patent eligibility. Someone sold you a pet rock, and you continue to stare at it – waiting for it to come to life. I’m sorry it is not going to move on its own.

    I still get warm and fuzzy hearing Judge Taranto SCOTUS remark.
    Because you don’t know really understand what he said.

    I suppose he would call me a bad poker people because I am getting beat my a dealer delivering cards from the bottom of the deck.
    No. You went into the game (presumably) knowing the rules (i.e., Alice had already issued). Don’t complain because the game is getting played exactly how they said it was going to be played (even if it is unfair). Also, don’t complain after you’ve seen many other people with stronger hands lose the game. You had ample, ample opportunity to change your playing style – you didn’t. That’s a you problem – not a USPTO problem. I’ve gotten patents issued on applicants I have taken to the Board multiple times on 101 and lost. How? I learned what the USPTO is looking for and crafted better arguments and/or claims. You, on the other hand, keep thinking it is the game that was played 20 years ago.

    To use a blackjack analogy, you keep think it is 1972 and they dealing from a single deck. Today, they are dealing using shuffle machines and the eye in the sky keeps track of your betting pattern and playing style.

  • [Avatar for B]
    B
    August 22, 2022 11:02 am

    @ concerned “We have people naively come on this forum and think SCOTUS is the entire problem. I have probably seen the majority of disturbing tricks from the USPTO on just one patent application.”

    I assure you that you only got a small portion of the sleazy PTAB bag of tricks – although the PTAB had a couple of new ones I’ve never seen before your case.

    “I suppose [Curious] would call me a bad poker people because I am getting beat by a dealer delivering cards from the bottom of the deck.”

    Unfortunately, the Chief APJ is either a really poor leader, or has bad control over quality at the PTAB

  • [Avatar for concerned]
    concerned
    August 22, 2022 07:54 am

    “That was one of the most brainless things ever to come out of the PTAB. “Yes, we refuse to look at your evidence, but send us more evidence that we won’t look at.”

    We have people naively come on this forum and think SCOTUS is the entire problem. I have probably seen the majority of disturbing tricks from the USPTO on just one patent application.

    Curious calls my invention simple, my process claimed wrong, my attorney arguing the wrong things and my evidence not good. I suppose he would call me a bad poker people because I am getting beat my a dealer delivering cards from the bottom of the deck.

    Level the playing field: Beat me with definitions on added words, statements that are logical, your own evidence, address my evidence, etc. then criticize my invention.

  • [Avatar for B]
    B
    August 21, 2022 07:04 pm

    @ Anon “As attorneys — ESPECIALLY as attorneys — we are called to “support” (and I do prefer defend) the actual limitations of the judicial branch, and in those matters especially in which THAT Branch exceeds its authority, THAT support is NOT ‘well, they can call it whatever they want to.’”

    There is perhaps a blurry line when the courts are interpreting a statute versus the courts are completely re-writing the statute,

    However, given that congress purposefully wrote out “invention” out of the Patent Law, it seems unlikely that any “interpretation” might embrace invention/inventive concept as an interpretation. Given that the courts and the PTO cannot even define the word (or have tried) is a clear indicator that Alice-Mayo is unworkable.

    Also, it is stupid to believe that patents directed a Turing machine running sequential instructions somehow violates the Constitution. That said, when I see a reply like “three justices recused themselves in Benson,” I can smile knowing a substantive response is lacking.

  • [Avatar for Anon]
    Anon
    August 21, 2022 06:23 pm

    Curious,

    Mine is close enough to correct you on point here.

    You state, “does not violate the oath of the DC Bar.”” but that is NOT so.

    Leastwise, “and that I will support the Constitution of the United States of America.

    (Mine is stronger than ‘support,’ that is, it expressly uses “defend.”

    The point you err at is your looseness in “saying what it means.”

    This goes to the meaning and understanding of the RANGE of law writing that falls under Common Law.

    Certainly, the judicial branch is the branch that is charged with interpretation.

    And just as certainly, some common law at the ‘weak’ side of the range MAY be deemed interpretation.

    But just as assuredly, the judicial branch IS CONSTRAINED by the Constitution, our underlying guidance of a government of limited powers, and the notion that ALL THREE branches are BELOW the Constitution.

    Now, it is widely recognized by the history of Common Law, that the judicial branch can engage in the strong end of the spectrum in “gap-filling” style of actual legislating from the bench (the most common example is in torts).

    But Patent Law is expressly different, given that THIS is one very specific type of law actually called out — in the Constitution — as OUTSIDE of the judicial branch authority to so legislate from the Bench.

    As attorneys — ESPECIALLY as attorneys — we are called to “support” (and I do prefer defend) the actual limitations of the judicial branch, and in those matters especially in which THAT Branch exceeds its authority, THAT support is NOT “well, they can call it whatever they want to.”

    Perhaps a review of Madison’s concerns in the Federalist Papers would help you understand the context involved.

  • [Avatar for B]
    B
    August 21, 2022 04:37 pm

    @ concerned “The Board on its new rejection even stated I should submit corresponding new evidence to the examiner. Of course, the joke is the USPTO did not EVER look at my evidence on the first rejection, . . . .”

    That was one of the most brainless things ever to come out of the PTAB. “Yes, we refuse to look at your evidence, but send us more evidence that we won’t look at.”

    The APJs reviewing TC3600 cases are a bad joke. The PTO uses Alice-Mayo to reject claims they don’t like but are too stupid to do honestly. Typically, the CAFC has the back of these idiot APJs.

  • [Avatar for concerned]
    concerned
    August 21, 2022 08:36 am

    The CAFC could remand back to the USPTO to address my evidence, thus avoid all the other issues.

    The Board on its new rejection even stated I should submit corresponding new evidence to the examiner. Of course, the joke is the USPTO did not EVER look at my evidence on the first rejection, but it does appear to be a tacit admission by the Board that evidence matters.

    The evidence argument has been preserved throughout. The CAFC decisions I have been reading uses the word “evidence” frequently and this is the Court that delivered Berkheimer.

    The Asst Solicitor argued stare decisis on the issues she wanted, what about a little Berkheimer stare decisis on addressing the evidence?

    Curious does not think my evidence was good evidence. I bet blindly he never had a client that had evidence from every possible user supporting the argument he was making. Evidence or “good” evidence I think I still have a right to have it addressed, via remand, and given an explanation accordingly.

    I still get warm and fuzzy hearing Judge Taranto SCOTUS remark.

  • [Avatar for B]
    B
    August 20, 2022 07:45 pm

    @ Curious “ Now I know you are just shooting from the hip. If you’ve read Benson — as I have on many, many occasions, you would know that there was only 6 Justices on the opinion — three recused themselves.”

    Which means nothing in the context of my statement. Roe was a 7-2 decision, but still there were 9 justices total

    Plus Flook (6-3) and Diehr (5-4) had dissenting opinions – but still 9 justice in the Supreme Court

    Your “gotcha” is lame and pedantic , now go sit in the back of the bus while repeating your mantra “stare decisis, stare . . . .”

  • [Avatar for Curious]
    Curious
    August 20, 2022 06:57 pm

    Please provide your entire oath.
    You first. In the meantime, here is the DC Bar oath:
    I__________do solemnly swear (or affirm) that as a member of the Bar of this court, I will demean myself uprightly and according to law; and that I will support the Constitution of the United States of America.”
    Recognizing that the Supreme Court has the final say on what Federal law is does not violate the oath of the DC Bar.

    Benson came out 3 months before Roe, and was from the same 9 knuckleheads.
    Now I know you are just shooting from the hip. If you’ve read Benson — as I have on many, many occasions, you would know that there was only 6 Justices on the opinion — three recused themselves.

    Diehr came out 4 years after Flook despite Stevens’ whining about conflicting precedent.
    So what?

    The thing about stare decision and lofty b.s. from [insert justice here], bad and unworkable decisions get overturned when challenged despite the Thank-you-your-honor-may-I-have-another sycophants.
    Keep dreaming the dream because that is the closest you’ll get to seeing the Supreme Court overruling themselves on this issue. Also, as I believe I have pointed out before, the current makeup of the Court includes Thomas, Alito, Roberts, Sotomayor, and Kagan – all of whom were in the majority in Alice. That’s 5 votes against you right there. Don’t confuse this issue with the one that led to a multi-decade campaign by the Republican party to nominate Supreme Court justices specifically for their willingness to overturn a (now) 50 year old decision.

    Why, would it hurt your feelings?
    Someone (other than me) providing poor legal advice wouldn’t hurt my feelings. Why would you think otherwise?

    I absolutely briefed the point that Alice violates 5A due process
    I don’t care whether you briefed it or not. The issue wasn’t raised below (i.e., before the Board). Accordingly, the Federal Circuit is well within its rights to ignore the argument. In re Google Technology Holdings LLC (Fed. Cir. 2020) (“We have regularly stated and applied the important principle that a position not presented in the tribunal under review will not be considered on appeal in the absence of exceptional circumstances.”) I doubt you have an “exceptional circumstances” argument (e.g., intervening case law). If you’ve ever been around sophisticated attorneys who have a substantial practice before the Federal Circuit, they would tell you that bad lawyering below (e.g., not preserving issues) is one of the biggest problems they face.

    and so-help-me-god the PTO Solicitor had no response other than misrepresenting case law and pretending CAFC case law trumps SCOTUS case law with the occasional claim of “stare decisis.”
    That’s nice, but CAFC is still bound by CAFC precedent. No way to get around that absent an en banc decision. Also, nothing in Bilski helps you, which was the Solicitor’s point.

    Judge Taranto made one statement: “This sounds like an argument you should make for the Supreme Court.”
    In other words, ‘this argument has no validity before the CAFC.’ Concerned gets all excited by this statement, but the most reasonable interpretation of Taranto’s statement is that he was implicitly indicating to you that they (i.e., the CAFC) cannot help you.

    However, challenging the status quo is how one changes the status quo.
    Challenging the status quo with old and ill-formed arguments does not change the status quo.

    Still, if people didn’t challenge stare decisis now and then Black people would still be dining at separate lunch counters. No, I’m not comparing myself to MLK. I’ve merely read the Dobbs decision and the 5A
    I suspect that less than ½ of 0.1% of people in this country understand (much less care) about this particular issue. There is no public outcry for change. There is no marching in the streets about the exceptions to 35 USC 101. Don’t confuse the Supreme Court decisions involving the Civil Rights movement and Dobbs with this issue. If there was any great outcry for change, it could happen via Congress. However, nearly 50 years since Benson, what have we gotten out of Congress? The answer is a big, fat nothing-burger.

  • [Avatar for B]
    B
    August 20, 2022 04:26 pm

    @ Anon

    Curious viewpoint isn’t unusual, and appears to be more common than I would think it would be.

    Still, if people didn’t challenge stare decisis now and then Black people would still be dining at separate lunch counters. No, I’m not comparing myself to MLK. I’ve merely read the Dobbs decision and the 5A.

  • [Avatar for Anon]
    Anon
    August 20, 2022 04:08 pm

    Curious,

    Apparently you need to have someone hold your hand.

    Please provide your entire oath.

  • [Avatar for B]
    B
    August 20, 2022 03:00 pm

    @ Curious “I seriously hope that B didn’t suggest that this was a possibility to his client.”

    Why, would it hurt your feelings?

    I made no promises other than my best effort, but I absolutely briefed the point that Alice violates 5A due process, and so-help-me-god the PTO Solicitor had no response other than misrepresenting case law and pretending CAFC case law trumps SCOTUS case law with the occasional claim of “stare decisis.”

    I may not appreciate much about Judge Taranto’s decisions, but he seemed perfectly aware of the problems. Judge Taranto made one statement: “This sounds like an argument you should make for the Supreme Court.”

    The odds are stacked against concerned, and there’s the possibility the CAFC will outright ignore every issue put before them. However, challenging the status quo is how one changes the status quo.

  • [Avatar for B]
    B
    August 20, 2022 01:49 pm

    @Curious “ When the Supreme Court has stated that they’ve interpreted it this way for 150 years, there is no debate.”

    Benson came out 3 months before Roe, and was from the same 9 knuckleheads.

    Diehr came out 4 years after Flook despite Stevens’ whining about conflicting precedent.

    The thing about stare decision and lofty b.s. from [insert justice here], bad and unworkable decisions get overturned when challenged despite the Thank-you-your-honor-may-I-have-another sycophants.

    My problem: I have no respect for judges merely because they got a political appointment. A full third are incompetent and dishonest, and even the honest judges cover for the deplorable third.

  • [Avatar for Curious]
    Curious
    August 20, 2022 01:12 pm

    Because YOU BOTH are part of the problem here with this nonsensical view that WHATEVER the Supreme Court does (somehow) must be above all law, above the Constitutional itself.
    One part of my oath is that I don’t present a “defense except such as I believe to be honestly debatable under the law of the land.” Both you and B are delusional if you think it is debatable what the “law of the land” happens to be with regard to whether there are exceptions to patentable subject matter under 35 USC 101. When the Supreme Court has stated that they’ve interpreted it this way for 150 years, there is no debate. As such, perhaps you might be violating your oath (if it is comparable to the one I had to make).

    Let’s be clear. There is only final determiner as to what is the law of the land. That is the Supreme Court. You can honestly believe that the law should be interpreted different (as do I). However, once the Supreme Court has put their foot down (which they have repeatedly on this issue), there is no honest debate as to what the law of the land happens to be. You can pout and emote all you want as to the wrongness of it all, but it doesn’t change that the Supreme Court has the last word.

    For your “well, that’s what they said” type of position, you appear to disregard a very important ethical aspect of your sworn duty as an attorney.
    By not accepting what the law happens to be, both you and B could be in danger of failing to provide effective counsel to your clients. How ethical is it to provide bad advice to your client? You want an example? Here is one:

    The SCOTUS wont deny cert if the CAFC holds Alice unconstitutional.
    I seriously hope that B didn’t suggest that this was a possibility to his client. Let’s just walk through all of the problems with this statement. One, none of these “unconstitutional” arguments were raised below. As such, the Federal Circuit can summarily dismiss all of these arguments as being improperly raised. Second, when has the CAFC ever held that a Supreme Court decision was “unconstitutional”? Third, has “case law” ever been held to be Constitutional? Statutes and executive acts can be unconstitutional – I’m not aware of case law being declared unconstitutional – case law can be overruled but that is not the same thing. Fourth, Supreme Court precedent is binding on the CAFC – the CAFC cannot overrule it. Fifth, there are easier/better ways for the CAFC to limit the scope of Alice than overruling it. Sixth, not a single judge on the CAFC has signal anything that could be interpreted as willingness to go the extreme of overruling Alice. There is probably a Seventh, Eighth, and Ninth, but this horse is dead already. There is simply zero chance that the CAFC would hold Alice unconstitutional.

    I went back and listened to the oral arguments in Killian again. The USPTO Solicitor’s arguments started at the 11:13 mark. A question was asked about Bilski at the 12:27 mark. The Solicitor’s arguments ended at the 14:34 mark. The Solicitor spoke for 3 minutes and 21 seconds. One would think that if the CAFC was inclined to declare Alice unconstitutional, they would have asked the Solicitor more than a single (very open-ended) question about Bilski – and there was no pushback by the judges when the Solicitor essentially said ‘I have no idea what Killian is talking about regarding Bilski. If you had told me how long the Appellee spoke for during an appeal before the CAFC, I could easily predict any affirmance with an extremely high accuracy. In this instance, the CAFC’s complete disinterest in what the Solicitor had to say is a very ill omen regarding your case.

  • [Avatar for concerned]
    concerned
    August 20, 2022 08:07 am

    Anon:

    Bravo! Bravo! Bravo!

    If not B, I would have been proud to have you as my attorney, win or lose.

  • [Avatar for Anon]
    Anon
    August 20, 2022 07:58 am

    Curious and Noonan.

    Please provide the attorney oath for the State’s that you are a sworn attorney in.

    Why?

    Because YOU BOTH are part of the problem here with this nonsensical view that WHATEVER the Supreme Court does (somehow) must be above all law, above the Constitutional itself.

    For your “well, that’s what they said” type of position, you appear to disregard a very important ethical aspect of your sworn duty as an attorney.

  • [Avatar for concerned]
    concerned
    August 20, 2022 07:39 am

    Curious: “Your “evidence” has extremely limited probative value regarding the issues at hand. Don’t confuse evidence with good evidence. Had I possessed similar evidence in any of the applications I was prosecuting before the USPTO, I would likely not cite it for lack of value.”

    Then the USPTO should tell me what you wrote. When the USPTO tells me my process is routine, well understood and conventional and the evidence shows nobody uses the process on Earth, the USPTO should explain why the evidence is lacking. And the USPTO offering some evidence of their own would also help.

    USPTO has offered no explanation or evidence, just unfounded statements. And what would that explanation or evidence specifically be from the USPTO? To me, offering no explanations and offering no definitions seem to be a bigger problem than my claimed process. Do you see a problem with such conduct by the USPTO?

    In fact, any clients you represent would get zero patents approved if I could offer no explanations, no evidence, no definitions and write statement that are not supported by the record. But I would give your client a fair review before I rejected it.

  • [Avatar for B]
    B
    August 19, 2022 08:36 pm

    @ Curious “ Tell that to the Supreme Court. Oh wait, not only are they going to deny Cert., the would cite to statutory stare decisis even if they did take up the issue.”

    The SCOTUS wont deny cert if the CAFC holds Alice unconstitutional.

    And the SCOTUS would be forced to provide clarification. Good luck defining a term that hasn’t been defined in 150 years and was written out of the Patent Law 70 years ago.

    Between stare decision and the 5A due process clause, I’m betting on due process.

  • [Avatar for Curious]
    Curious
    August 19, 2022 08:24 pm

    You can’t interpret what doesn’t exist.
    Tell that to the Supreme Court. Oh wait, not only are they going to deny Cert., the would cite to statutory stare decisis even if they did take up the issue.

    Besides me? Read the article above. US Inventor and Eagle Forum.
    And when was the last time the Supreme Court listened to them regarding a patent case?

    If that doesn’t work, cite Supreme Court language back to itself.
    You don’t think that hasn’t been tried before? Repeat after me … The Supreme Court doesn’t care.

    What does Bilski have in common with Benson and Flook?
    The following line: “‘A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.’ Le Roy v. Tatham, 14 How. 156, 55 U. S. 175. Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.”
    Try as you might, there is no escaping this.

    I can tell you what Bilski has in common with Diehr – an incredibly well-known, routine, and conventional process run on a computer to achieve an incredibly predictable outcome.
    I disagree as to your characterization of both Bilski and Diehr. However, what I think doesn’t matter. It is what SCOTUS thinks that is important. This is the point that continues to elude you.

    You really, really, really need to read s100(b), which, inter alia, expanded the definition of art/process beyond what was statutory in 1793.
    That expanded definition of “art/process” (i.e., “the term ‘process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material”) does not address the exceptions.

    Two very intelligent attorneys cannot even agree on what is the “settled” law.
    Don’t misconstrue the conversation. The law is settled. While we both agree that the law was improperly interpreted, one of us holds out hope that SCOTUS will change its mind, and the other of us is quite convinced that SCOTUS isn’t backing down.

    So evidence cannot even be a tie breaker on the so-called “settled” and conflicting law.
    Your “evidence” has extremely limited probative value regarding the issues at hand. Don’t confuse evidence with good evidence. Had I possessed similar evidence in any of the applications I was prosecuting before the USPTO, I would likely not cite it for lack of value.

    Win or lose, I like the approach B used on my appeal.
    Then you must like losing because it is a losing approach. Far better patents have been shot down by the CAFC/SCOTUS. I’ve already identified a better approach for you.

    Chakrabarty declared that everything made by man under the sun is patent eligible.
    No. It didn’t. It cited the Committee Report, which made that statement. Moreover, the Supreme Court immediately followed up that citation with the following statement:
    This is not to suggest that § 101 has no limits, or that it embraces every discovery. The laws of nature, physical phenomena, and abstract ideas have been held not patentable. See Parker v. Flook, 437 U. S. 584 (1978); Gottschalk v. Benson, 409 U. S. 63, 409 U. S. 67 (1972); Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 333 U. S. 130 (1948); O’Reilly v. Morse, 15 How. 62, 56 U. S. 112-121 (1854); Le Roy v. Tatham, 14 How. 156, 55 U. S. 175 (1853).
    As such, Chakrabarty changes little.

    I respectfully assert that the patent in LeRoy v Tatham would be patent eligible today under 101
    I respectfully assert that the patent in both Benson and Flook would be patent eligible today (in the Patent Office) under 101. However, what I think doesn’t matter.

  • [Avatar for concerned]
    concerned
    August 18, 2022 12:34 pm

    I also believe that SCOTUS legislated from the bench. Some of their recent decisions said as much when stating courts are not allowed to engraft their personal and political views unto the statue.

    The political fight from both parties upon a conformation of a new judge says it all. If it was just an interpretation of the law, why the big knock down, drag out fight between both political parties upon conformation?

    The court was stacked to get the Dobbs decision, the court will be stacked to reverse the decision.

    Statutory stare decisis: Horse droppings regardless of how SCOTUS wants to justify their actions.

    Curious is correct, of course. It is what it is. However, win or lose, I am proud of the fight you are waging on my behalf and the people with disabilities even if it goes nowhere. They will not beat us with evidence or giving the definitions of their words you keep asking to receive.

    Fight on!

  • [Avatar for B]
    B
    August 18, 2022 11:05 am

    @ concerned

    My, friend, I think there’s a small misunderstanding. I’m not saying Curious doesn’t have a point. There is a statute and stare decisis is involved. We both appear to agree Alice-Mayo is bad.

    I also admit to missing – or forgetting about – the line Curious pointed out in Bilski.

    The difference b/t Curious and I is that I refuse to believe that these “exceptions” are “interpretations” merely b/c, after 40 years of brazen violation of separation of powers, Justice Kennedy said so 10 years ago in Bilski.

    Chakrabarty declared that everything made by man under the sun is patent eligible. Bilski declares that machines running certain types of software are not patent eligible. Either stare decisis doesn’t apply, “everything” doesn’t really mean “everything,” or the sun stopped shining.

    Meanwhile, the Supreme Court is demanding an “inventive concept,” and while I’m pretty sure Congress intentionally wrote that lunacy out in 1952 (and the SCOTUS announce admitted this in Graham v Deere), there is stare decisis involved.

    BTW, note to Curious – I respectfully assert that the patent in LeRoy v Tatham would be patent eligible today under 101 – perhaps not under Alice-Mayo

  • [Avatar for Model 101]
    Model 101
    August 18, 2022 08:06 am

    The legal arguments are one thing…but no one’s talking about the crook argument.

    They’re crooks.

    Nothing more.

    The Supreme Crooks.

    The Federal Crooks.

    The District Crooks.

    I can’t believe you are so naive.

    The emperor’s have no clothes!

    This is how crooks make money!

  • [Avatar for concerned]
    concerned
    August 18, 2022 07:50 am

    And there we have it: Statutory stare decisis.

    Two very intelligent attorneys cannot even agree on what is the “settled” law. Neither can the CAFC per the Patent Commissioner. Both of my patent attorneys countered case law with the USPTO’s case law, but is it the USPTO and its Board’s opinion (without evidence) that matters even though the case laws conflicted each other. So evidence cannot even be a tie breaker on the so-called “settled” and conflicting law.

    Most people agree the current patent jurisprudence is horrible, whatever the “settled” law. The only “settled” law is there is no “settled” law. If it was not for “unsettled” law, there would be no “settled” law at all.

    And a lot of different ideas on how to solve this patent problem. Who really knows what problem is being addressed, the process is that capricious? However, most people admit the emperor has no clothes even though the emperor will not admit it for reasons probably beyond statutory stare decisis.

    Win or lose, I like the approach B used on my appeal. Win or lose, I will not go back to the USPTO except on a remand by the CAFC, I promise. This patent application is not the be all, end all in my life. It was a promise to colleagues that I would follow up with some of my ideas that were undeveloped in a hope to help people with disabilities. Solving a long sought problem was the easy part. Overcoming the environment that does not use evidence and that can write statements that are not true (per several on this forum) is the hard part.

    There may be other ways to help people with disabilities despite a patent. If I figure it out, while my patent attorney argues what we really think, then I will call that a great day.

    When I leave this patent environment, I do not have to take it with me. I feel compassion for those of you professionally employed within it. And I have people tell me all my life that I should of been an attorney, even attorneys seeking my counsel. Next time I will ask them to see if they really like me: What kind of attorney, patent attorney?

  • [Avatar for B]
    B
    August 18, 2022 01:41 am

    @ Curious “ The current version of 101 shortens up what was passed in 1793 and
    replaced “art” with “process.” However, aside from that, 101 is
    essentially unchanged.”

    You really, really, really need to read s100(b), which, inter alia, expanded the definition of art/process beyond what was statutory in 1793.

  • [Avatar for B]
    B
    August 18, 2022 12:53 am

    @ Curious “ .” It seems to me that SCOTUS had no problem reconciling Bilski with Benson.”

    That may be the silliest thing you’ve ever said based on a rhetorical line that doesn’t comport with reality. What does Bilski have in common with Benson and Flook? Note that the underlying processes on Benson and Flook were believed novel.

    I can tell you what Bilski has in common with Diehr – an incredibly well-known, routine, and conventional process run on a computer to achieve an incredibly predictable outcome. What’s different b/t the two cases besides the outcome? Aren’t old business methods exactly like laws of physics? I’m sure I heard that somewhere.

    “Thank you, your honor, may I have another.”

  • [Avatar for B]
    B
    August 18, 2022 12:34 am

    @Curious “ For an attorney, you have terrible reading comprehension. . . . “

    Translation: the fact that exceptions are pulled out of thin air means they’re not in the statute. You can’t interpret what doesn’t exist.

    “If the Supreme Court says they are engaging in statutory
    interpretation, who is going to tell them that they aren’t?”

    Besides me? Read the article above. US Inventor and Eagle Forum.

    If that doesn’t work, cite Supreme Court language back to itself. The SCOTUS, however, has taken a vow of silence while begging the DOJ for answers that don’t exist.

  • [Avatar for Curious]
    Curious
    August 17, 2022 10:49 pm

    Point me to the language in 101 that allows exceptions
    For an attorney, you have terrible reading comprehension. What is it about “I think that most would agree that the Supreme Court created the exceptions out of thin air” that you don’t comprehend? If you comprehended that statement, you would have never asked the question you just did.

    If the Supreme Court says they are engaging in statutory interpretation, who is going to tell them that they aren’t? And don’t say you. The only body capable of telling SCOTUS that they are wrong is Congress. Benson was decided 50 years ago. If, in 50 years, Congress hasn’t set SCOTUS straight, do you really think that SCOTUS will be persuaded by you? Also, SCOTUS stated that they’ve been interpreting the statute this way for not just 50 years but 150 years. Given their perceived correctness on this issue, there is ZERO chance that SCOTUS is going to back off this interpretation.

    Bilski and Benson cannot be reconciled.
    This is from Bilski: ” Rather than adopting categorical rules that might have wide-ranging and unforeseen impacts, the Court resolves this case narrowly on the basis of this Court’s decisions in Benson, Flook, and Diehr, which show that petitioners’ claims are not patentable processes because they are attempts to patent abstract ideas.” It seems to me that SCOTUS had no problem reconciling Bilski with Benson.

    I also hate to break it to you and Justice Kennedy, but the 1952 Patent Act is not 150 years old, LeRoy predates 1952 by 100 years, and s101 OVERRULES LeRoy as well as a host of other SCOTUS decisions.
    Not particularly aware of the history of patent law, are you? This is from the Patent Act of 1793, Ch. 11, 1 Stat. 318-323. Section 1 reads as follows:
    That when any person or persons … shall allege that he or they have invented any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter … it shall and may be lawful for … letters patent to be made out in the name of the United States.
    The current version of 101 shortens up what was passed in 1793 and replaced “art” with “process.” However, aside from that, 101 is essentially unchanged. Moreover, how does 101 overrule Le Roy v. Tathan when 101 differs little from the statute that existed at the time Le Roy was decided?

    Plus Morse is a 112(a) decision.
    I wrote the same on this blog long before you ever showed up. However, what I think (and write) has no precedential value. Rather, it is what the Supreme Court writes that has precedential value, and in this instance, they characterize Morse as a patent eligibility decision.

    I’d trust the cast of Real Housewives more than the SCOTUS to get a patent case right, or understand that statutory exceptions must have a source of authority.
    Do the Real Housewives have a vote at the Supreme Court? They don’t. So what they think or you think really doesn’t matter. What I learned as an engineer is that you can either spend your time and effort blaming someone/something for a problem or you can spend your time and effort fixing the problem and the wiser choice is to fix the problem. You appear to be focused on blaming SCOTUS for all of the ills in the world. You may be correct, but this recognition does NOTHING to fix the problem. You are spending time and effort going down a path that leads to a dead end. It is a waste of time.

  • [Avatar for concerned]
    concerned
    August 17, 2022 10:21 pm

    Statutory stare decisis: Having the law settled even though not settled correctly.

    Problem with that theory is patent law is not even settled (correctly or otherwise). The Patent Commissioner readily states that not one federal judge fully understands the contours of the (settled) law.

    More seems to be in play than statutory stare decisis.

  • [Avatar for B]
    B
    August 17, 2022 06:44 pm

    @ Curious

    I also hate to break it to you and Justice Kennedy, but the 1952 Patent Act is not 150 years old, LeRoy predates 1952 by 100 years, and s101 OVERRULES LeRoy as well as a host of other SCOTUS decisions.

    Plus Morse is a 112(a) decision.

    Again, bend over and thank the Supreme Court for its vast stupidity, inability to read its own case law, and inability to count higher than 101. I’d trust the cast of Real Housewives more than the SCOTUS to get a patent case right, or understand that statutory exceptions must have a source of authority.

  • [Avatar for B]
    B
    August 17, 2022 06:24 pm

    @ Curious

    You just admitted that these exceptions are “exceptions,” and then declared they are interpretations.

    Point me to the language in 101 that allows exceptions, then explain how Bilski is consistent with Benson. Bilski and Benson cannot be reconciled.

  • [Avatar for Curious]
    Curious
    August 17, 2022 05:26 pm

    Exceptions to statutes are NOT interpretations of statutes.
    Keep saying that over and over and over again – but it is not going to change what the Court said they did. They said they were interpreting the statute. They invoked statutory stare decisis in Bilski: “And, in any case, these exceptions have defined the reach of the statute as a matter of statutory stare decisis going back 150 years.” They did the same in Alice: ” We have interpreted §101 and its predecessors in light of this exception for more than 150 years. Bilski, supra, at 601–602; see also O’Reilly v. Morse, 15 How. 62, 112–120 (1854); Le Roy v. Tatham, 14 How. 156, 174–175 (1853).”

    Also, the SCOTUS has never evoked stare decisis re s101
    You are wrong. The relevant quote is reproduced above.

    If everything under the sun made by man is patent eligible (Chakrabarty), then Benson is nonsense as is Alice, Bilski, and Mayo.
    You think you are the first person to make that argument? It is a dead argument.

    Join the learned Mr. Noonan to bend over and scream “Thank you, your honor, may I have another” after every s101 decision while praying you’re lucky enough to get the right CAFC panel on appeal.
    You on the other hand, think that banging your head up against a brick wall will cause it to tumble down after others have tried sledge hammers and wrecking balls to no effect.

    I refuse to accept this carp as anything but an unconstitutional overreach by technically ignorant, black-robed thugs too stupid to read the Constitution or anything numbered higher than 101.
    Refuse all you want, but when the judgement is final and you have no other recourse but to go back down to the Examiner, I don’t want to hear about you “fighting the good fight.” If we are fortunate, your trip to the CAFC won’t make things worse for either your client or the law.

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 17, 2022 05:23 pm

    Try to keep it classy there, B. The only people who like the current state of eligibility law are the efficient infringer crowd; understanding and approving are two different things.

    The Federal Circuit could have brought some resolution to this mess 10 years ago by narrowly applying the Court’s eligibility precedent, but an earlier decade of being the East Coast version of the 9th Circuit in being reversed and the changing composition of the court thwarted that (go back and read Judge Rich’s In re Bergy decision for a taste of an appellate court judge having little time for the High Court’s foolishness on patent matters).

    But that didn’t happen and now Congress is the only recourse (which in itself is a pitiful state of affairs).

  • [Avatar for B]
    B
    August 17, 2022 04:59 pm

    @ Curious “Ultimately, it doesn’t matter how the Supreme Court got to the exceptions to 101 once they invoked statutory stare decisis.”

    “Statutory stare decisis” relates to the interpretation of a statute. Exceptions to statutes are NOT interpretations of statutes. That’s why they’re called “exceptions.” Also, the SCOTUS has never evoked stare decisis re s101, and instead the SCOTUS keeps announcing conflicting rules one s101 case to the next. Bilski and Alice could have been rejected under mental steps, but instead the SCOTUS announced a far different rule while rejecting the CAFC’s mental steps theory of rejection while formally announcing that “some” software programs and “some” business methods are patent eligible.

    It’s incumbent upon the rest of the world to guess what is what. That is why there are so many splits in the CAFC.

    If everything under the sun made by man is patent eligible (Chakrabarty), then Benson is nonsense as is Alice, Bilski, and Mayo.

    Hey, what is Diehr but a natural law (abstract) run by computer software (abstract) for performing a well-known, conventional, and routine (i.e., abstract) process of rubber curing using a general approach that five other previous patents disclose using discrete logic and analog circuits?

    Think Diehr would survive Alice Corp? I guarantee you that more than half of the CAFC would hold Diehr patent ineligible if it were a case of first impression. Where’s the inventive concept, after all?

    Join the learned Mr. Noonan to bend over and scream “Thank you, your honor, may I have another” after every s101 decision while praying you’re lucky enough to get the right CAFC panel on appeal. I refuse to accept this carp as anything but an unconstitutional overreach by technically ignorant, black-robed thugs too stupid to read the Constitution or anything numbered higher than 101.

  • [Avatar for Curious]
    Curious
    August 17, 2022 02:04 pm

    Since I’m late to this conversation, I won’t address all of the individual points being made.

    Regarding the Supreme Court, the Constitution, and the exceptions to 101. I think that most would agree that the Supreme Court created the exceptions out of thin air. 101, as drafted, was not intended to be a condition for patentability. Congress, had they been so inclined, could have pushed back against Benson, Bilski, Mayo, Alice et al. They didn’t. This is where statutory stare decisis comes into play, and it is what they referred to in Bilski. In short, statutory stare decisis is a legal principal, involving statutory construction, which states that if Congress has an opportunity to weigh in on the Court’s interpretation and they choose not to, then it implies that Congress has acquiesced to that interpretation of the statute.

    To be clear, while we (at least most of us) know that the Court is rewriting the statute, this is not how they see it. Rather, to them, they are interpreting the statute, which is permissible. Like it or not, this is how the Court operates.

    From my reading, statutory stare decision is more rigid than normal stare decisis involving an interpretation of the Constitution. This is a quote from Helvering v. Hallock (US 1940):
    Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right . . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions.
    Since a statute can be more easily amended than the Constitution, the Supreme Court is less likely to revisit their interpretation than if it was an interpretation of the Constitution. They would rather the law be settled than be settled correctly.

    Ultimately, it doesn’t matter how the Supreme Court got to the exceptions to 101 once they invoked statutory stare decisis. Even if we currently have a majority of the Supreme Court believing that 101 was improperly interpreted to include these exceptions, they aren’t going to revisit the issue based upon statutory stare decisis. They are more concerned about maintaining their judicial principals (of which statutory stare decisis is one), than they are about any single case.

    What this means is that going to the Supreme Court to ask them to do away with the exceptions to 101 is a waste of time. They aren’t going to revisit that particular issue.

    What this in mind, what could the Supreme Court do instead? One answer is that they could reign in the Federal Circuit’s overly-expansive use of the exceptions. However, I think that all of the denied Petitions for Cert since Alice (8 years old now) is pretty good evidence that they aren’t interested in going down that path. We can jump up and down and scream all we want that the Supreme Court improperly created the exceptions and the Federal Circuit has committed gross overreach in applying the Alice-Mayo test, but the Supreme Court has given every indication that they aren’t moved by those demonstrations.

    Real change is going to come from one of two places: Congress or an en banc decision by the Federal Circuit.

    This is my only comment directed to any individual. B – please realize that someone explaining why they think the Court did something is not necessarily the same as them believing that the Court did it correctly. You frequently confuse the two, and in doing so, you have a tendency to turn a civil conversation into an uncivil one.

  • [Avatar for B]
    B
    August 17, 2022 12:43 pm

    @ Night Writer “Thanks B for trying.”

    I’ve often been described as “trying.”

    “IMHO the Scotus is basing their exceptions on saying that if a claim fits an exception then it was unconstitutionally granted.”

    Well, then they should have said so, but given the wording and quality of the Benson decision I’d say it’s not possible to declare that software patents are unconstitutionally granted. Benson was 100% a policy decision.

    Further, had the SCOTUS read, for example, section 103 or even their own KSR opinion, they’d realize how stupid their Alice Corp. decision is.

    “I still think the easiest way out of this is to just get a few CAFC judges appointed that aren’t worthless garbage and have them in a panel narrowly restrict Mayo/Alice.”

    100% correct, but that would require a judge on the CAFC to actually have read Bilski and Alice Corp. instead of the Cliff Notes.

    Speaking of unconstitutional, the fact that the SCOTUS never defined the terms “inventive concept” and “significantly more” set the whole Alice-Mayo test up for a 5A violation. The cluelessness of the Supreme Court is such that they didn’t realize they set up an ersatz 103 test in 101.

    When the Supreme Court decoupled “abstract” from abstract, they set the whole Alice-Mayo test up for failure, but even then, had a single idiot in the Supreme Court read 102, 103, and 112, they’d realize that 102/103 address laws of nature (people use them all the time, right?), and that 103/112(a) address ideas unto themselves.

    When the CAFC decoupled “well-known, routine, and conventional” from evidence, they set the whole Alice-Mayo test up for failure.

    “Mayo is tougher”

    The real problem stems from the idea of the courts that patents need to be decoupled from laws of physics and math. This insanity comes from Justice Steven’s anti-patent crusades starting with Flook.

    American Axle, as insane as it is, is a reflection of policy formed by tech-ignorant poly-sci and sociology majors in the Supreme Court. Kudos to Judge Taranto for hitting that slippery slope in record time. No one has been rhetorically harder on Taranto than I, but he’s not stupid and he has a point that the SCOTUS affirmed in refusing cert. in American Axle.

  • [Avatar for Night Writer]
    Night Writer
    August 17, 2022 10:22 am

    Thanks B for trying.

    IMHO the Scotus is basing their exceptions on saying that if a claim fits an exception then it was unconstitutionally granted.

    I still think the easiest way out of this is to just get a few CAFC judges appointed that aren’t worthless garbage and have them in a panel narrowly restrict Mayo/Alice. For example, just hold that for Alice to apply the “abstract idea” has to be notoriously well-known. Boom. 99 percent of the 101 rejections from Alice go away.

    Mayo is tougher.

    Still, it gives me a warm feeling to know that people like you are alive and fighting the good fight.

  • [Avatar for concerned]
    concerned
    August 17, 2022 04:32 am

    I’m the client on B’s third approach. B did called American Axle as a non- cert.

    The Asst. Solicitor’s argument at my oral hearing was stare decisis, offered no definitions or evidence. How many years did people think the Earth was flat? Under the patent system, the Earth would still be flat in 2022 even with photos taken of the Earth from the Moon (stare decisis).

    I read B’s briefs as a layperson and wonder how can we miss, it is brilliant? Then I realize that we can get no definitions of the words legislated from the bench and it is a process where evidence is completely not addressed, except when it invalidates or rejects the patent/patent application.

    My instincts tell me there is a hidden agenda with patents. In the sub-prime mortgage crisis, intelligent people were running around trying to convince the public that mortgage loans could be given to borrowers with no means of repayment (in an attempt to game the system for profit.) Patents are no different. Intelligent people running around saying this patent jurisprudence all makes sense.

    Both patents and the sub prime mortgage crisis can not be addressed or stopped with logic. The sub prime mortgages stopped when it threatened the financial collapse of the entire nation, then the game had to stop no matter which buddy was profiting.

    The patent non-sense will probably stop when it finally threatens the security of our nation. One poster on this forum suggests it stops when an aircraft carrier gets beached beyond our control.

    In the meantime, it will be death by a thousand cuts. Sub prime mortgages could be sustained when it was just 3 bad (fake) loans sprinkled in and bundled with 100 total mortgages. However, 40% of loans originated in 2006 and 2007 never made the first payment on a 360 month note. Collapse time when greed kick in, the hand was overplayed from 3% phony loans to 40%.

    The patent system can give me and others the dosey doe. Eventually, the ones behind all this patent nonsense will go too far and it will be forced to stop, the hand will be overplayed. Hopefully, when the nonsense stops, we will still be speaking English. ??

  • [Avatar for B]
    B
    August 16, 2022 08:37 pm

    @ K.N. “B: we’ll have to agree to disagree.”

    It’s hard to argue with your “just because” approach to constitutional law. Might I respectfully suggest you read Art I of the Constitution.

    “But while it may feel good to excoriate the Court what solution do you have?”

    My initial strategy was to confront the courts with their own nonsense, and have them explain how they just know stuff. Apparently, no one at the CAFC realized the SCOTUS never declared anything “abstract” without evidence. I was Rule-36’ed before the sun set.

    My second approach was to present them with a business method that passed every test possible (including an amazing advantage), and ask the courts how a claim with FOUR limitations that were totally unknown and non-obvious under 102/103 was somehow well-known, routine, and conventional as a whole, ordered combination under 101. I again pointed out that the SCOTUS never declared anything “abstract” without evidence – something all three panel judges were unaware of. The CAFC, five months after oral argument, punted and refused to address a single issue before them. I call this shameless act “lying by omission.”

    Attempt #1 and #2 taught me that Alice-Mayo is unforgivably capricious and unworkable garbage, that the CAFC has no clue what it is doing – and worse – the CAFC has no intent on addressing their collective insanity like adults.

    My third approach was to: (1) challenge Alice-Mayo under 5A due process and separation of powers under Shein while citing only SCOTUS caselaw (on the idiot theory that some machines are just like mental steps); (2) point out that CAFC decisions were conflicting with other CAFC decisions and with SCOTUS law, and (3) show that the “inventive concept” test was so capricious the PTAB and USPTO Solicitor couldn’t define the word. I mocked the Solicitor in my blue and reply brief on the issue.

    I later entered a R28j memo on Dobbs.

    What I did was to offer two avenues for the CAFC to force the SCOTUS to take cert. b/c I knew the SCOTUS would balk on American Axle – esp. after the garbage brief produced by the DOJ and USPTO Solicitor.

    This is still pending after 3.5 months after oral hearing.

    I also write articles on the various decisions of the courts in a generally unfiltered way.

    Sure as heck beats bending over and screaming “Thank you, your honor, may I have another” after every capricious CAFC decision while bowing to non-existent authority.

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 16, 2022 06:55 pm

    B: we’ll have to agree to disagree. But while it may feel good to excoriate the Court what solution do you have?

  • [Avatar for B]
    B
    August 16, 2022 06:38 pm

    @ K.N. “B: you are arguing about what they say. But about that we agree (as to its wrongheadedness).”

    Wow, you are an incredibly bad listener.

    Certainly, I’ve criticized the knuckleheads in black robes – from Madison Place to 1st and Independence – for a long line of abject stupidity

    However

    Nothing based on policy empowers the Supreme Court to rewrite the Patent Law from the bench.

    You realize that congress wrote “invention” out of the Patent Law in 1952, right? If not, read Graham v. Deere and almost anything Giles Rich ever wrote. What then empowers the courts to resurrect “invention” and rebrand it as “inventive concept,” and stick such a requirement in 101?

    You keep repeating “just because.”

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 16, 2022 06:24 pm

    B: you are arguing about what they say. But about that we agree (as to its wrongheadedness).

  • [Avatar for B]
    B
    August 16, 2022 06:18 pm

    @ K.N.: “: you are arguing about whether the Court is correct. I agree with you that they are not. But the question is whether the Court can make such decisions and their legal basis. I think they can, wrong or not.”

    No, I am arguing EXPRESSLY that the courts are not empowered to rewrite the Patent Law from the bench because policy differences don’t beget constitutional authority.

    By fiat, the courts have created chaos of the patent system to the point where Alice-Mayo is nothing by a capricious veto of patents based on words the courts and USPTO cannot define.

  • [Avatar for B]
    B
    August 16, 2022 06:05 pm

    @ K.N. “Now please don’t misunderstand – I think they are wrong. I just think they have the power to hand down these rulings on this basis.”

    Just FYI, this issue is now pending before the CAFC in an opinion not yet finished or published. The CAFC may refuse to answer, or spew nonsense having no bearing on the underlying issues.

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 16, 2022 06:04 pm

    B: you are arguing about whether the Court is correct. I agree with you that they are not. But the question is whether the Court can make such decisions and their legal basis. I think they can, wrong or not.

  • [Avatar for B]
    B
    August 16, 2022 05:58 pm

    @ K.N. “The Court’s position is that granting patents on laws of nature (diagnostic methods), natural phenomenon (genes), or abstract ideas (algorithms including computer programs) does not promote progress because these things are/should be free to all men, unencumbered by patents, as fundamental building blocks of invention.”

    You really need to actually read the Benson decision, but determining that software run by machines and diagnostic methods are patent ineligible is a policy issue reserved for Congress, and not for idiot judges too lazy to read past Section 101.

    And you’ve totally swallowed the Kool-Aid about fundamental building blocks. What is a “fundamental building block” besides what a court says on a given day?

    Do you believe that some political appointee with a sociology degree is competent determine what is an “abstract idea” in a particular field of technology?

    Can you even tell me what process a court uses to determine whether a claim is directed to an “abstract idea?”

    BTW, I recently challenged the USPTO to define what an “inventive concept” is. When the solicitor wasn’t lying outright in her briefs that the PTAB defined it (they did not), she refused to even mention the phrase.

    102, 103, and 112 address every freaking concern about overly broad patents.

    EVERY. SINGLE. ONE.

    Now there may be something to be said about mental steps – actual mental steps, not the idiotic notion that computer software is mental steps.

  • [Avatar for B]
    B
    August 16, 2022 05:35 pm

    @ K.N> “OK, folks, we have two options. We can believe the Supreme Court does whatever it wants with no legal justification, or we can ask what is the legal justification? I prefer the latter approach Prove me wrong.”

    Just in case you’ve missed out on the five decades of patent eligibility decisions, the Supreme Court has refused to answer your question. I’ve also PERSONALLY filed cert. to the SCOTUS asking for the answer in Villena v. Iancu, and despite the fact that the DOJ was actually in favor of taking the case (between their serial falsehoods), the SCOTUS refused cert.

    Been there, done that.

    What more evidence do you need?

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 16, 2022 05:34 pm

    The basis is that Congress has the power to grant patents “to promote progress.” The Court’s position is that granting patents on laws of nature (diagnostic methods), natural phenomenon (genes), or abstract ideas (algorithms including computer programs) does not promote progress because these things are/should be free to all men, unencumbered by patents, as fundamental building blocks of invention.

    Now please don’t misunderstand – I think they are wrong. I just think they have the power to hand down these rulings on this basis. And I am glad they have not expressly relied on this basis, because if they did the only way to overturn such a ruling would be by a Constitutional amendment. You think legislation to hard to do?

  • [Avatar for B]
    B
    August 16, 2022 05:28 pm

    @ Kevin Noonan “Anon: I take this very seriously. I’m just not willing to say the Court’s decisions are without legal basis.”

    Fine. What is the Constitutional basis for declaring software run by machines an exception to patent eligibility?

    I’ll wait for your answer.

    “Just as Hotchkiss imposed an obviousness standard before Sec 103 the judicial exceptions are not in the statute but are imposed as a limitation on what can be patented.”

    Kev, you’re missing the point. In the absence of language in the Constitution or the Patent Law, the Supreme Court MUST draw authority from somewhere when creating statutory exceptions.

    It is not the job of the courts to make public policy, and so far as I can tell the Supreme Court’s idiotic exceptions hinder innovation and create uncertainty, not the language of 101.

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 16, 2022 05:22 pm

    OK, folks, we have two options. We can believe the Supreme Court does whatever it wants with no legal justification, or we can ask what is the legal justification? I prefer the latter approach Prove me wrong.

  • [Avatar for B]
    B
    August 16, 2022 05:17 pm

    B: “The Supreme Court has never once stated that s101 exceeded Art 1, s8, c8 of the Constitution. In fact, just try to find the word ‘Constitution’ in the Benson decision.”

    Kevin Noonan: “B: they don’t have to – it is the only basis upon which they have authority to construe the statute to exclude the judicial exceptions other than their own caprice. You don’t think that’s the basis, do you?”

    Anon: “They very much have to – you simply do NOT get to jump to an UNSTATED assertion.”

    K.N., I’m 100% sure the SCOTUS didn’t consider their Constitutional authority in Benson. The Benson opinion is too freaking stupid as if written by government-employed 1Ls who never took a science class in their lives, and who never studied anything about statutory construction. One literally has to fast-forward decades before the SCOTUS hints at using classic statutory interpretation in the patent law in Bilski, and even then the SCOTUS was too stupid to read their own case law or anything 35 USC 102 or higher.

    Anon, the SCOTUS gets to do what they want to do, and the CAFC has absolutely proved themselves incapable actually reading Bilski, Alice, or Mayo. I know this for a 100% fact as three of the most clueless CAFC judges were astonished to learn that Bilski, Alice, and Mayo were all evidence-based decisions in 2018. There’s recorded audio to prove it.

    Judge Rader saw this carp-show coming, and was ignored.

    Talk about a Cassandra Complex

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 16, 2022 04:55 pm

    Anon: I take this very seriously. I’m just not willing to say the Court’s decisions are without legal basis. Just as Hotchkiss imposed an obviousness standard before Sec 103 the judicial exceptions are not in the statute but are imposed as a limitation on what can be patented.

  • [Avatar for Anon]
    Anon
    August 16, 2022 04:35 pm

    I well understand BOTH the forum of blogging AND what is set out in the Marbury v. Madison case.

    Please do not tell me to keep in mind “the basics” when you yourself are so busy mangling those basics.

    The immediate point here was that what you deigned rhetorical is actually the more on point NON rhetorical item to be seriously considered. Further, this has ZERO to do with whether or not the Court would agree (and even suggesting that only compounds your lack of understanding the basics that you want others to keep in mind.

    NOT taking this seriously is very much a part of the problem. There is NO need to go hunting for “any other hopefully legal theories to explain this jurisprudence.”

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 16, 2022 08:53 am

    Dear Anon: I presume you understand that a blog post comment is by necessity an abbreviated discussion without annotations and footnotes.

    Keep in mind some basics. The prerogatives of the Court to make these decisions comes from Marbury v Madison which while grounded in Article III is not expressly recited there.

    My question of whether the Court acts on its own caprice was rhetorical – and while it may appear sometimes like it does I doubt the Court would agree.

    Besides your caprice theory and my attribution of the judicial exceptions as the Court’s limit on Congress’s Article I powers do you have any other hopefully legal theories to explain this jurisprudence?

  • [Avatar for Anon]
    Anon
    August 16, 2022 08:44 am

    I am a bit astounded by Kevin E. Noonan’s rather slipshod assertion vis a vis the structure of the US government, its three branches, and the BASICS of the Rule of Law being that our government was explicitly created to be a government of limited powers.

    To wit:

    B: they don’t have to – it is the only basis upon which they have authority to construe the statute to exclude the judicial exceptions other than their own caprice. You don’t think that’s the basis, do you?

    They very much have to – you simply do NOT get to jump to an UNSTATED assertion.

    Further, construing the statute is very much different than legislating from the Bench.

    Further still, you alight upon – but seemingly dismiss – the rather obvious conclusion that IS to be drawn:

    The Court acted out of its own caprice.

    And it is NOT the first time that this has happened.

    As ANY patent attorney should know, THIS is exactly what prompted Congress to Act in 1952 (AGAINST a prior Supreme Court that had self-christened itself with the phrase, “The only valid patent is one that has not yet appeared before us.”

    The attorney ranks seem to have a very real problem with understanding that ALL three branches are below the Constitution -even as most all Oaths of State for attorneys make clear that our duties include NOT putting the courts above the Constitution.

  • [Avatar for B]
    B
    August 15, 2022 12:54 pm

    @ Anonymous “Something that is merely a law of nature or a naturally substance would fail under 102.”

    I agree with 99% of what you said, but not all naturally occurring things are known or used by man.

    Say if a man discovers a new enzyme in an extremophile living in a volcanic vent at the bottom of an ocean never before seen.

    The enzyme passes 102.

    However, is there any harm in granting patent protection?

  • [Avatar for Model 101]
    Model 101
    August 15, 2022 10:06 am

    B

    Indeed!

  • [Avatar for B]
    B
    August 15, 2022 09:20 am

    @ Kevin Noonan “they don’t have to – it is the only basis upon which they have authority to construe the statute to exclude the judicial exceptions other than their own caprice. You don’t think that’s the basis, do you?”

    In Benson, Flook, Bilski, and Mayo, the Supreme Court NEVER mentions the Constitution – NOT ONCE.

    One has to search to find the single instance in Alice Corp. where Justice Thomas mentions Art. 1, s8, c.8, and the knuckleheaded Sotomayor concurrence doesn’t make mention of the Constitution.

    If any of the dunderheads at 1st and Independence could count over 101, they’d realize that 101, 102, 103, and 112 all work together to reign in bad patents instead of recreating an unconstitutional and ill-conceived pseudo-103 test in section 101 based on “inventive concept,” which is a test that Congress wrote out of the patent law in 1952.

    “Inventive concept” is a gift from Stevens – the stupidest and most dishonest justice ever to mistake himself for a super-legislator.

    Also, none of the idiots in the SCOTUS realize that Morse is a 112(a) issue, not a 101 issue. Again – too stupid and intellectually lazy for words.

    Bilski and Alice Corp. could have easily been handled under 103, but again the Supreme Court can’t count that high. Mayo could have been addressed with a bit of 1L claim construction and a 102 analysis.

    The 1952 Patent Act was incredibly well designed, but one needs to be able to count over 101 to appreciate such

  • [Avatar for concerned]
    concerned
    August 15, 2022 08:10 am

    B did tell me that SCOTUS can write statements that are not correct and his CAFC blue brief was all over the fact that evidence submitted by me was not considered in the USPTO analysis.

    It made my day when Curious wrote that the USPTO uses analysis, not evidence, and the SCOTUS says mental steps when the process is really not mental steps. Curious thinks my claimed process is a simple invention and the way it was claimed is not that great.

    Could it be that an inventor has no chance if statements can be made that are not true and evidence can not be used to rebut analysis? My attorney cannot even get words defined that were added to the statutory text.

    I know what I invented and so do my associates and colleagues. It is hard to accept other people’s contrary opinions when I am also being told evidence does not count and any statement can be written whether factual or not.

    Good luck with the petition. On some cases, SCOTUS says no right to add words to the statutory text (Dobbs, Schein, EPA v. West Virginia, etc.) On other matters, SCOTUS says it is alright to add words (Section 101). It just might be your day.

  • [Avatar for PTO-Indentured]
    PTO-Indentured
    August 14, 2022 09:16 pm

    With US Patents: Ambiguity begets Big Money / Big Money begets ambiguity.

    Ambiguity weakens US patents. No impetus suffices to correct this. Clarity, kept at bay — is just too valuable to a too few.

    Caste our fates to the wind — double-standard wise.

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 14, 2022 06:55 pm

    B: they don’t have to – it is the only basis upon which they have authority to construe the statute to exclude the judicial exceptions other than their own caprice. You don’t think that’s the basis, do you?

  • [Avatar for B]
    B
    August 14, 2022 05:58 pm

    @ concerned “I was told SCOTUS can make statements that are not even true. For example, mental steps when the process is really not mental steps.”

    I told you that – although I’m likely not the only one.

    @ Kevin Noonan “The Court’s authority (as it was regarding obviousness before Sec 103 was enacted) is that the Court and only the Court can determine whether Congress has exceeded its authority under Art I.”

    The Supreme Court has never once stated that s101 exceeded Art 1, s8, c8 of the Constitution. In fact, just try to find the word “Constitution” in the Benson decision.

    @ Curious “The brief barely mentions the facts of this particular case. Frankly, 90% of this brief could be cut and paste into just about any petition for cert involving 101.”

    Still better than that POS the DOJ and USPTO solicitor penned for American Axle.

  • [Avatar for B]
    B
    August 14, 2022 05:44 pm

    I’ve submitted a brief to the SCOTUS claiming this exact thing years ago. The SCOTUS is perfectly aware of their unconstitutional b.s., and will likely ignore the amicus.
    https://www.supremecourt.gov/DocketPDF/18/18-1223/81814/20190318214614787_Villena_SCOTUS_Petition-cert-corrected-ef.pdf

    I also touched on the issue in In re Killian, then went full frontal when the Dobbs decision was leaked.

    The only way the SCOTUS will take cert. on the issue is if the CAFC declares Alice unconstitutional.

    Still, this is U.S. Inventor doing God’s work, and best of luck to Mr. Tropp.

  • [Avatar for Anonymous]
    Anonymous
    August 14, 2022 01:37 pm

    Marbury v Madison already decided the issue. The courts get to interpret the law and Constitution. Congress must pass a law if there are to be no judicial exceptions. Something that is merely a law of nature or a naturally substance would fail under 102. A computer method to perform a process faster fails under 103. If a process is novel and non-obvious, even if it only recites steps performed by a computer, it should pass 101. Much of the Court rulings were to curb trolling (When Patents Attack).

  • [Avatar for Paul Cole]
    Paul Cole
    August 14, 2022 12:13 pm

    Interestingly theree appears to be no EPO equavalent to the first of the two patents, but the second of the two patents has been the subject of EPO Appeal Board decision T 1381/16, the relevant paragraphs of whicfh appear below:

    3.3 There is no apparent technical effect resulting from the mere presence of a master key lock portion in addition to the first lock portion. However, the fact that the master key lock portion is suitable for receiving a master key that can open the master key lock portion of all sub-types of special locks leads to the technical effect that the luggage inspection process can be simplified due to a reduced number of master keys. In the context of a given (though not explicitly stated) number of sub-types of special locks as disclosed in D6a, the fact that a single master key fits more than one sub-type inevitably reduces the total number of master keys.

    3.4 The objective technical problem could thus be considered to be providing a product which allows for a simplification of the luggage inspection process.

    3.5 The claimed solution to this problem is not rendered obvious by the available prior art. None of documents D4a, D4b, D4c, D5 and D7 teaches or suggests an additional master key lock portion that is suitable for receiving a master key that can open the master key lock portion of all sub-types of special locks.

    3.6 The subject-matter of claim 1, therefore, involves an inventive step (Article 56 EPC).

    The granted patent is now under opposition by Travel Sentry, Inc, citing no less than 13 prior art documents, the Notice of Opposition dated 07 April 2022 running to some 46 pages.

    On the whole, inofar as what is claimed is a population of special locks and keys, and given the EPO Appeal Board’s analysis, there appears to be a credible argument that the claimed subject-matter falls within “manufacture” under 35 USC 101, and any relevant objections more credibly fall under 35 USC 102 or 35 USC 103.

  • [Avatar for Pro Say]
    Pro Say
    August 14, 2022 10:05 am

    Superb brief.

    . . . and to those who posit that such efforts are quixotic wastes of time, I say . . . ’tis better to continue swinging the bat of truth and justice . . . than to put the bat down, give up, and go home.

  • [Avatar for concerned]
    concerned
    August 14, 2022 07:38 am

    Exactly where my brief for cert was going, with a few more goodies, if unsuccessful at CAFC. SCOTUS in Dobbs, and also in Schein v. Archer, said the court had no authority to engraft words unto the statutory text.

    There is no rule of law in the patent environment. Rulings and reasoning contradict each other. Any decision can be reached. The Patent Commissioner says no federal judge understands the full contours of the law.

    I was told SCOTUS can make statements that are not even true. For example, mental steps when the process is really not mental steps.
    And USPTO uses analysis instead of evidence. So if the analysis is wrong, too bad.

    One and done inventor win or lose. Thankfully, the same legal approach is not used to convict innocent people of crimes. Then again, not a lot of money to be made sending an innocent man to prison for murder like the money that can be made to game the patent system.

  • [Avatar for Curious]
    Curious
    August 13, 2022 04:47 pm

    The brief barely mentions the facts of this particular case. Frankly, 90% of this brief could be cut and paste into just about any petition for cert involving 101.

    Regardless, SCOTUS has no interest is buying what they are trying to sell. This pitch has been made many times before, and in each instance, SCOTUS has been uninterested.

  • [Avatar for Kevin E Noonan]
    Kevin E Noonan
    August 13, 2022 04:08 pm

    A nice brief but ultimately futile. The Court’s authority (as it was regarding obviousness before Sec 103 was enacted) is that the Court and only the Court can determine whether Congress has exceeded its authority under Art I. To the extent Sec 101 permits inventions falling within the judicial exceptions the Court has concluded Congress has done so. And there is no way to counter that position except to enact a statute that defines ineligible subject matter as the Court has (which is not the same as codifying how the exceptions have been interpreted by the district courts and the Federal Circuit

  • [Avatar for Random patent attorney]
    Random patent attorney
    August 13, 2022 12:55 pm

    Alas, the present court will not take kindly to anything that restricts their power. See Mark Lemley’s recent paper at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4175554

  • [Avatar for Model 101]
    Model 101
    August 13, 2022 12:45 pm

    Yeah but…the courts have a lot of crooks. The whole thing is basically illegal. There is no hope for inventors anymore. Laws are for honest people

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