Federal Circuit guidance is needed because district courts are misapplying Alice

answers-compassRecently, we filed an amicus brief with the United States Court of Appeals for the Federal Circuit in support of Broadband iTV, Inc., the appellant in the case styled Broadband iTV, Inc. v. Hawaiian Telcom, Inc. et al. Our brief requests the Federal Circuit provide further guidance regarding the proper scope and application of Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014), both generally and specifically with regard to software patents.

Tranxition is a software company that has developed PC system deployment software and computer personality tools that cater to businesses and, therefore, software patent protection is a matter of great importance for our company. Tranxition began with an idea: Computer Personality is how a computer takes on the style and habits of a user over time. If people could manage these personas, they would have all the things they need across all computer systems. Since 1998, Tranxition has been producing award-winning software products, which specifically address Windows user transition between systems. These tools give users their Computer Personality especially when the OS and apps are different versions. We have what we believe to be a strong patent portfolio, and we continue to add to our portfolio in order to protect new inventions. Like many innovative software companies, we have a significant interest in the proper application and scope of patent laws.

Broadband iTV’s appeal raises critical issues affecting patent-eligibility of computer-implemented inventions under 35 U.S.C. § 101. Federal Circuit guidance is needed because many district courts have misapplied Alice and sidestepped the rigorous factual analysis that has historically been required, and should still be required, prior to patent invalidation under Section 101. Over 7,500 claims in 150 patents have been invalidated as a matter of law. We believe an essential part of the Federal Circuit’s proper guidance should include addressing the serious missteps in the district court’s decisions as described below.

In a manner consistent with Congress’ intent that Section 101 be construed liberally to find patentability, the Supreme Court has expressly stated that the court-created exceptions to Section 101 patentability should be a narrowly-applied “coarse filter.” Despite this clear admonition, district courts have increasingly invalidated patents based on a misapplication of Alice that demonstrably lacks technical and legal rigor and a body of poorly adjudicated case law is accumulating. It appears that software patents are particularly vulnerable to an improper utilization of both Alice and the Federal Circuit’s subsequent interpretative decisions construing and applying Alice.

The District Court’s errors in the Broadband iTV decision are a paradigmatic and telling manifestation of certain of the manners in which district courts are misapplying the two-step Alice test in order to invalidate patents, creating something of a fait accompli at the outset of the filing of an Alice motion. Most notable is the alarming trend of certain district court Section 101 Alice invalidations that purport to resolve questions of law but that, upon closer scrutiny, only nominally invoke Section 101 to improperly sidestep the work of Sections 102, 103 and 112 of the Patent Act. The problem in so-doing is that district courts are utilizing the summary legal analysis permissible under Section 101 when, in fact, they should be undertaking the factually-intensive analysis required by Sections 102, 103 and 112. This sleight of hand has resulted in what is becoming a systematic invalidation of patents on a far lesser “legal” showing rather than the rigorous factual showing mandated by the Patent Act.

Adding to this disarray, district courts are ignoring the well-settled presumption of the validity of patents and are inconsistently applying the long-standing “clear and convincing” factual burden to invalidity analysis. Whereas as a matter of settled law, patents enjoy a presumption of validity, Courts are on their own modifying the standard to a mere preponderance based on no controlling case law or statute.   Absent a change from Congress or the Supreme Court, applying anything less than the “clear and convincing” standard contravenes settled law. The Supreme Court in 2012 wrote that the standard is “clear and convincing evidence” stating that only congress can change that. District courts evince a pattern of avoiding this mandate from the high court.

Finally, compounding the above-referenced trends, district courts are over-relying on – misunderstanding and misapplying – the discredited “pencil-and-paper” analogy as a convenient and ill-suited proxy for the two-step Alice test.

Clarification of the Section 101 standards – both substantive and procedural – are needed to prevent further deviation from the intent of Congress and from Supreme Court precedent. Additionally, its time to reconsider the history of the patent system and what has guided the application of patent law for hundreds of years: the Patent Act of 1952 states any new and useful invention. Without further clarification from this Court regarding the proper application of Alice to software patents, the damage has been, and could continue to be, catastrophic to the software industry. It was estimated recently that, as of 2015, approximately 240,000 patents relate to computer-implemented inventions; at an estimated invalidation rate of 82.9%, approximately 199,000 of those patents appear vulnerable to Section 101 invalidation in the current climate. Is this really what Congress intended with 101? See Tran, Jasper L., Software Patents: A One-Year Review of Alice v. CLS Bank, 97 Journal Of The Patent and Trademark Office Society 532, 534, 542 (2015).[1] Even accounting for the need to weed out weak patents, the economic damage caused by judicial misapplication of Alice cannot easily be overstated. As district courts rely upon the poorly-adjudicated decisions of other district courts, improper case law is entrenching these unsupportable and improper decisions, further necessitating Federal Circuit guidance.

Lost in the appropriate desire to rein in poorly-conceived patents is the very real toll being exacted upon patentee-inventors with actual inventions– both those whose patents have been unjustifiably invalidated and those who continue to hold patents. There can be little question that the uncertainty caused by the rising tide of invalidations under Section 101 has undermined the value of all patents across entire industries.

For these reasons and more, the Federal Circuit should reverse the district court decisions in Broadband iTV, Inc. v. Hawaiian Telcom, Inc., — F. Supp. 3d —-, No. 14-00169 ACK-RLP, 2015 WL 5769221 (D. Haw. Sept. 29, 2015), and Broadband iTV, Inc. v. Oceanic Time Warner Cable, LLC, — F. Supp. 3d —-, No. 15-00131 ACK-RLP, 2015 WL 5768943 (D. Haw. Sept. 29, 2015) (collectively, the “Broadband iTV Decisions”), and clarify Section 101 jurisprudence consistent with Congressional intent and the narrow holding in Alice.



[1] According to the author:

“As of June 19, 2015, Alice was cited in 198 PTAB decisions, 63 district court decisions, and 11 Federal Circuit opinions, in a total of 272 court cases, to invalidate patents under § 101— totaling 286 invalidations out of 345 patents or patent applications which appeared before the courts, accounting for an average invalidation rate of 82.9%.”

Id. at 534.



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74 comments so far.

  • [Avatar for Night Writer]
    Night Writer
    April 13, 2016 08:19 am

    And note that for any of Ned’s trash thinking to have any basis it relies on the justices having made a finding of fact that granting a patent to a witch does not promote innovation. Then the justices are such smart little boys and girls that they played with the definition of witch to include anything that a judge doesn’t like.

    I am not sure what is more vexing that the justices have burned down patent law or the insult that they are using fallacious reasoning and expecting us to swallow it. Ned dances around fires at night throwing patents into the fire shouting–“Witch!,” which sometimes comes out of his mouth as “Abstract!”

  • [Avatar for Night Writer]
    Night Writer
    April 13, 2016 08:07 am

    Ned, you must be kidding. Stevens’s reasoning is trash at best. And your mixing nonsense is garbage. You continue to throw up the most vile brown mushy stuff against the wall. It is tiresome to clean up after you time and time again.

    Get that you advocate witch law. Give me a claim that needs your witch law? 102/103/112 are all that are needed. Too broad, see LizardTech on how to deal with claims that are too broad.

    Ned’s thinking: that there element A is a witch. It ain’t eligible. ’cause, ’cause, it is dangerous and against [email protected]. Trash thinking Ned. Trash.

  • [Avatar for Anon]
    April 12, 2016 08:15 pm

    Mr. Heller,

    What you may choose to “believe” should not be confused with what the law (here in the U.S.) is.

    You penchant for non-US law is fairly well known – when that non-US law suits your desired ends. When that happens, your ability to think critically and I daresay reasonably, disappears.

    Further, putting too much cache into Justice Stevens is simply not a wise choice – even as he panned the lack of reasoning in the majority position, his own version was far, far worse, as he would have directly overwritten the words of Congress.

  • [Avatar for Edward Heller]
    Edward Heller
    April 12, 2016 02:53 pm

    Curious and Night, just a small point, but I believe that when a claim mixes the ineligible with the eligible (business methods and computers for example), that invention must be in the computers. You can see that the folks in Europe see it this way as well.

    This is not 1952 all over again. Not at all. Invention in subject matter that is otherwise not patentable is totally irrelevant. Now I do acknowledge that Bilksi, in dicta, did suggest that the problem with the claims before it in that case were that they were directed to a hedging method notoriously old. But I really do not believe that lack of novelty is the reason they were held ineligible.

    Now Stevens’ dissent did point out that the reasoning of the majority not simply was unclear, it was not even present.

    That is why we have the problems we have today in figuring out exactly what the Supreme Court meant.

  • [Avatar for step back]
    step back
    April 11, 2016 01:41 pm

    What Night Writer said @#68.

    We are most definitely in a Medieval Dark Age period with the US Courts buying into the whole “natural” and “laws of nature” scams.

    Everything is “natural”. It is an almost meaningless term (unless you buy into some religious propaganda about the Big Guy upstairs having made humans different from all other creatures who breathe, eat, poop and make noise –where Mother Nature doesn’t listen to the noises).

    Another meaningless word the courts love to hang their dunce cap on is “fundamental” as in fundamental business practices. How does one know where the foundational (fundamental) part of a building ends and the non-foundational (non-fundamental) parts begin. One is left with only the topmost tile on the roof as being non-foundational for anything above it. Fundamental is fundamentally a nonsense word as are “abstract”, “mind”, “stifle” and Benson v. Gotchalk.

    We most definitely are in the second Medieval Dark Ages.
    If you dare challenge the Supremes on this you will held underwater to see if are witch, warlock or troll. Trolls drown while witches need to be later put to the flames.

  • [Avatar for B]
    April 11, 2016 11:43 am

    “Taranto said in one opinion that merely simulating the human mind was per se obvious.”

    Having done graduate work in the field of artificial neural networks, I can say that many PhDs would love to ask Taranto how its done

  • [Avatar for Night Writer]
    Night Writer
    April 11, 2016 09:49 am

    @67 Kelly. I think we are in a new dark age. The justices and Fed. Cir. judges just fabricate nonsense and tell us to buy it. Taranto said in one opinion that merely simulating the human mind was per se obvious. Can you image a more ignorant statement of science. The Europeans recently said they thought it was a waste of money to spend $100 million working on simulating the human mind because we knew so little.

    We need to replace the judges. Judges like Soot-in-my-ear and Taranto are unqualified. The Fed. Cir. is no longer a credible court. We should do everything we can to disband it.

    We are being told regularly that the sun revolves around the earth by judges/justices.

  • [Avatar for Kelly Mackin]
    Kelly Mackin
    April 11, 2016 07:32 am

    Had a chance to look at genetic v bristol, which came out on Friday. When I first read the opinion, it almost convinced me that the patent was invalid under section 101. But later on, after the argumentation wore off, I began to think of all the situations in which someone discovered some fact of nature, and then designed a series of technologies that were ultimately patented. For example, is not the function of the spring in a mouse trap to swing back, to want to return to its normal position? That could be described as a law of nature. The whole alice rubric reminds me of Aristotle: “things fall to the ground because that’s their natural place.”

    Noticing the way that nature actually works, and writing claims to describe the process of using the way that nature actually works, to achieve an effect beneficial to man, through combining it by an arrangement of functions, to achieve something new and unexpected…that is the essence of invention. Is this the dawn of a new dark age because we didn’t listen to Ptolemy?

  • [Avatar for step back]
    step back
    April 10, 2016 09:07 pm

    Come on.
    A stapler is an old, well known common thing just like menus.
    Everyone knows how to use a stapler.
    It should be obvious.
    How did I do it?


  • [Avatar for step back]
    step back
    April 10, 2016 05:40 pm


    Almost everything that one figures out on their own is “inventive”.
    It is a separate question as to whether the invention is patent eligible.

    (Under section 101 it has to be new, useful and at least one of a machine, process, manufacture and composition of matter.)

    By way of example, 2 minutes ago I “invented” a method for getting that little key chain flexi-stringy thing to go through the tiny holes on my flash drive (jump drive) stick using a stapler.

    Can you re-invent how I did it? 😉

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 10, 2016 03:11 pm


    You may be right that most people believe that picking video-on-demand titles using a menu isn’t inventive, but those that believe such a thing would clearly be wrong.

    I find it funny that people think that software enabled technology is so simple and not inventive. It is as if no one uses software ever. Seriously, how could something that needs to be constantly updated so it doesn’t crash or leak from security vulnerabilities be so easy and non-inventive?

    This is precisely why those who are filing patent applications need to explain the technology behind the invention with such overwhelming technological detail that people like you couldn’t ever with a straight face make the absurd statement that things that are clearly inventive aren’t all that remarkable.


  • [Avatar for Satori]
    April 10, 2016 02:14 pm

    So, reading the District Court order in the first case (BROADBAND iTV, INC. v. HAWAIIAN TELCOM, INC.), it appears the USPTO already decided the patent in suit was a covered business method patent. All the court does is go on to note that under step 2 of the Alice framework, the specific language of the patent does no more than claim generalized, high-level computing steps to carry it out.

    I’m not quite sure I see why the sky is falling here. The company is trying to claim to have invented picking video-on-demand titles using a menu. Which, I think most people agree, using a menu to pick among a number of titles isn’t exactly “inventive.”

  • [Avatar for step back]
    step back
    April 10, 2016 10:59 am

    is cats be patentable?

    No one owns the definition of “software”.

    To ask whether software is patetnable is no more intelligent than to inquire
    is cats be patentable?

  • [Avatar for Anon]
    April 10, 2016 10:44 am

    Night Writer,

    I do not see the piece as having the problem of “not making any sense whatsoever.”

    If you view the piece as written by someone with a starting point of a certain philosophical view, and trying to craft a set of patent laws in a vacuum to support that particular philosophical view, then some “sense” can be seen.

    The problem of course (well, one of several problems) is that patent law does not exist in the vacuum that the person “needs” for it to exist.

    Another problem is that the philosophical view of the person does not accord with reality.

    Another problem is that the rest of the intellectual property laws (the domain of copyright) is ineptly understood as well by that person.

    Another problem is that that person does not (and apparently cannot) separate himself from an emotional experience being on the wrong side of patent law, and even though that case has apparently settled (and apparently Mr. Snyder cannot talk about the terms of the settlement), rest assured that Mr. Snyder did not emerge victorious, and that this “sense of being vindicated – or rather, the sense of needing to be vindicated” obscures and objective view of both the historical and philosophical contexts of not just patent law, but all of the intellectual property laws.

    Because of these and other factors, this person is simply not able to take criticism of his views in an objective or constructive manner. This person takes the position of merely wanting to wait for his term atop the soapbox, proclaim his views, and not listen as to why he views simply do not accord with history, law, facts, or context of these things. He will search out and gloom onto only those things that resonate with his world view. Sadly, he will forever remain “the victim” of patent law that he sees as unjust.

  • [Avatar for Night Writer]
    Night Writer
    April 10, 2016 10:18 am

    What is scary is that a human being could actually think that @54 makes any sense whatsoever. I will tell you one more time Martin: start from the basics of the elements of the claims and build from there.

  • [Avatar for Anon]
    April 10, 2016 09:41 am

    Similarly, many mechanical devices are based upon logic + information.


    It should be clear to all, that in the patent sense, software is a design choice – and is fully equivalent to hardware or firmware. See Alappat.

    Some “advocates” will attempt to kick up dust on this point and will attempt to insert extraneous requirements not present in patent law (permanence, for example), or will try to be coy with wanting to use “exactly equal” instead of “equivalence.” Such tactics do – and must – fail, and highlight intellectual dishonesty, as opposed to a true discussion on the merits.

  • [Avatar for Anon]
    April 10, 2016 09:03 am

    Software is more about appliedlogic than about information.

    Fixed that for you.

    Note that this is NOT an idle fix either, as has been pointed out in the past, there is a real difference in the application of something (vis s vis, the difference between math and applied math – or simply natural sciences and engineering (which can be considered to be applied science).

    The utility is the fruit of the application, and is the lynchpin as to why software patents meet the requirements as set forth by Congress. Show me “software without utility” and I will show you someone that does not understand what software is.

  • [Avatar for Curious]
    April 10, 2016 12:55 am

    The ability to pass culture and ways of organizing ourselves freely are rights that must not be infringed either, and the abstract ideas exception is designed to do that
    LOL … I’ve seen the “abstract idea” exception being applied an untold multitude of times — I would be hard pressed to find one example in which the exception was implied in a way that inhibited the “ability to pass culture and ways of organizing ourselves freely.”

    the abstract ideas exception is designed to do that
    The abstract idea exception was conjured by a justice who didn’t understand the difference between overly-broad and not enabled claims that could have been rejected under 112 and 101, which isn’t even a condition for patentability. This same justice also argued that trees should have standing.

    The reason is that patenting expression general ideas rather than specific works would be too limiting to freedom and culture. After “Jaws”, nobody could make a fish movie, or after “Star Wars” a space movie.
    What a horrible analogy.

    There have been some useful attempts. Kevin Collins wrote “Semiotics 101: Taking the Printed Matter Doctrine Seriously”, which I thought was a brilliant deconstruction of what software is and how it relates to patent law.
    I’ve read that tripe. In the first paragraph, he gets the printed matter doctrine wrong. The problem with the printed matter doctrine as it applies to software is that software is functional and being functional gets one out of the printed matter doctrine. Software is more about logic than about information.

    Similarly, many mechanical devices are based upon logic + information. For example, a mousetrap needs the information of “is the mouse in the ‘killing zone’?” For that a catch is used to relay that information to the holding bar. Then, using the logic of “is mouse in killing zone? If yes, then catch is moved, which releases holding bar causing the hammer to be activated by the spring.” A mousetrap is simply information gathering and the implementation of certain logic — like a lot of software. Similarly, both software and a mousetrap would be considered useful.

  • [Avatar for Stephan Curry]
    Stephan Curry
    April 9, 2016 11:16 pm

    You know who I [email protected]
    Unfortunately, it’s way too complex to be a useful test for everyday people, which points out a larger problem; nobody in business understands patent law- or has any clear idea of what may or may not be patent eligible. Most software people just do what they are going to do, and worry about patents as one worries about earthquakes and hurricanes- hoping they don’t get hit. A new doctrine needs to be stone simple to understand-for everyone from businesspeople to district judges, juries, and inventors.

    I need to patent my method of shooting a trey. that was a close one in Memphis.

    It was said above by [email protected] that “nobody in business understands patent law”. You have a point YHWH.

    Funny thing happened on the way to the Patent Office.
    Also, not all patent bar members really understand “patent law” and some of them think patent reform is the thing to do. In law school, we learned that patent attorneys have one of the “recession-proof” jobs (lots of invention disclosures and patent application work during boom times and lots of patent litigation during bad economic times) and the patent attorney profession is the one profession authorized by the Constitution. So a few folks in The Valley thought that since there were lots of patent law suits from 2008-2013, they thought the sky was falling and so they thought the patent law has to be reformed (but these folks in the Valley, like Lemley and Larry, forgot that it is just typical that we would have lots of patent law suits during bad economic times like 2008-2013 and the VERY FEW statistics they presented are not out of the norm during bad economic times). Anyway, back to the main point, some patent attorneys who worked at blue-chip leading edge technology law firms AND revolutionary high technology companies AND prestigious world-class research universities also seem to not understand “patent law” (quoting [email protected]) because they think Patent Reform is the thing to do and they think patent litigation is all automatically bad and so they think patent validity should be decided by the Executive Branch by way of the DoC (they know who they are since they keep talking and talking to the American public).

  • [Avatar for Anon]
    April 9, 2016 12:48 pm

    Dear Mr. Snyder,

    Your grasp of patent law vis a vis copyright law and what each pertains to is, quite frankly, abysmal.

  • [Avatar for You Know Who I Am]
    You Know Who I Am
    April 9, 2016 10:46 am

    Tranxition Corporation’s brief, as usual, lists a parade of horribles without much evidence; certainly software profits and investment remain healthy and there is no hue and cry in general technology circles about the effects of Alice. Nice shout-out to Gene in the brief, but everyone already knows where he stands. The Tranxition brief ignores the problems that led to Alice, so naturally offers no workable solution or alternative for the CAFC to act upon.

    A recent brief in the Ariosa v. Sequenom petition at least simply asks the court to do away with the three judicial exceptions, explaining that the statues and modern (post KSR) doctrine are enough to handle the work the exceptions do. Unanswered is the elephant in the room; why to the three exceptions exist at all, especially the “abstract ideas” section?

    The reason, stated clearly in Bilski and generally in much of the subject matter cases is human freedom. The ability to add to and draw from the “storehouse of knowledge” that belongs to all mankind. The ability to associate how we wish. The ability to pass culture and ways of organizing ourselves freely are rights that must not be infringed either, and the abstract ideas exception is designed to do that.

    This is one of the basic reasons we have law separating copyright and patent. (please save the trope that copyright does not cover utility and that what patents are for. There are always gray areas like training films or the “gaming” arts which the CAFC just recently refused to rule out of patenting in the case In re Smith [Fed. Cir. 2016]) The reason is that patenting expression general ideas rather than specific works would be too limiting to freedom and culture. After “Jaws”, nobody could make a fish movie, or after “Star Wars” a space movie.

    Yet those works are protected from direct ripoff, as they should be, to protect the efforts and investments made by authors and producers. As we are about to see in Oracle v. Google, copyright for software remains effective protection of those important values.

    Because software is a method by definition (instructions coded as steps toward a result) it can reasonably fit into the category of process under 101. Those who belive software is a machine or part of a machine have no legal authority because machines have always and invariably been held to require tangibility. Software and information are not tangible, and no amount of wordsmithing can make them so.

    There are basically three positions on software patents; none should be allowed, because its intangible and thus abstract in every case, all should be allowed because it’s made by the hand of man, and some should be allowed, usually based on a “technology” test or some other rubric.

    I cannot abide the “all should be allowed” position. Software has too much in common with literature and other works of authorship; it models the world with individual works of creative expression. Allowing monopolies on whole swaths of what amount to genres is too restrictive of human freedom and can never be reliably adjudicated.

    I could abide the “no software patents period” position, but I think that is not in the best interest of the economy and may run afoul of the Constitutional grant of the right to patent.

    I think I am in a large majority of reasonable people who think the best answer is that some software patents should be allowed.

    The “technical solutions to technical problems” test is as useless a tabula rosa as the notion of “abstract ideas”. The EU is basically on the same “know it when we see it” standard as we are right now. What is needed is a doctrine that meets the literal and spiritual meaning of “abstract ideas” yet allows patents on essential information resulting innovations in the modern era.

    There have been some useful attempts. Kevin Collins wrote “Semiotics 101: Taking the Printed Matter Doctrine Seriously”, which I thought was a brilliant deconstruction of what software is and how it relates to patent law.

    Unfortunately, it’s way too complex to be a useful test for everyday people, which points out a larger problem; nobody in business understands patent law- or has any clear idea of what may or may not be patent eligible. Most software people just do what they are going to do, and worry about patents as one worries about earthquakes and hurricanes- hoping they don’t get hit. A new doctrine needs to be stone simple to understand-for everyone from businesspeople to district judges, juries, and inventors.

    I’ve had an education driven by bitter experience. I wrote up my ideas and I have been spreading them in the wild from places high and low. I’m going to keep doing it.

    Y’all know who I am  and what I am saying

  • [Avatar for Night Writer]
    Night Writer
    April 9, 2016 10:40 am

    Does make you wonder about Sotomayor’s comments. She is so arrogant that she has no clue with patent law at all. She is arrogant about it with zero background in science, innovation, or business. And, she wants to influence who the next justice is. I think the best thing would be to impeach her.

    The best diversity that could be added to the SCOTUS is someone that is polar opposite to Sotomayor. Not an ignorant arrogant loud mouth.

  • [Avatar for Night Writer]
    Night Writer
    April 9, 2016 09:32 am

    @49: Stevens believes that the processing he does is his spirit and not physically based. He does offer lip service to the brain, but his philosophy is from before 1920.

    Ginsburg believe that technology is not meant to organize human behavior is perhaps the most ignorant thing that has ever been expressed by a justice. The information age is about processing information–like our brains–and the technology is intertwined with our processing.

    Please no more non-science justices. I agree. For diversity, get someone with a Ph.D. in science.

  • [Avatar for Anon]
    April 9, 2016 09:14 am

    step back at 50 – for diversity, ask yourself what percentage of the Justices come from well-endowed (liberal view based) Ivy League colleges…

    Hmmm, maybe that’s not the “right type” of diversity – in an Orwellian Animal Farm way….

  • [Avatar for step back]
    step back
    April 9, 2016 07:13 am

    Sotomayor J says SCOTUS needs diversity.

    Maybe they can benefit from having a scientist on board to help them understand that DNA is not like a banana tree with fruit hanging off of it in plain sight ready for the plucking?


  • [Avatar for step back]
    step back
    April 9, 2016 06:54 am

    The latest debates over the new fangled “computer” things and “genetics” stuff revolves around the same essence as would have been present in hypothetical debates of the 1800’s over mental process involved in mere transfer of information by way of telegraph, telephone and tele-video (TV): electrons and the patterns in which they are kept or presented.

    The foggy bottoms of our modern scientific age refuse to admit that tangible concrete things are not solid but rather mostly empty space and our daily interactions with these things that they consider solid real stuff is really electron to electron interaction.

    The electrons in a “computer”, be they moving or static are real.
    The electron clouds that define how our DNA’s and their fragments behave are real. The notion that an Intelligent Designer used a secret decoder ring to encode information in DNA, that … well that is total horse drop nonsense.

    The other things that are abstract and total fantasy are the arcane theories about the universe that buzz about in the “minds” of our Supremes like so many flies swarming around a decaying piece of fecal matter.

    Mother Nature does not bless our species (above all others) by coming down from her mountain top with clay tablets revealing to us and only us, her “laws”. These things the Supremes refer to as Laws of Nature are actually Theories of Man (yes even Einstein’s revered E=mc^2). Everything is a phenomenon of Nature, even we the human critters who hold ourselves as separate and apart from all the other creepy crawlies that inhabit this warming planet are phenomenon of nature. If phenomenon of nature are not patentable then nothing is patentable.

    Of course, if you call yourself Supreme how possibly can you think of yourself as anything less, as possibly perhaps even slightly in the wrong?

  • [Avatar for Night Writer]
    Night Writer
    April 9, 2016 06:52 am

    @47 Curious: No I don’t admire unethical people that don’t respect our laws or Constitution.

    Ned: it is pretty clear that you refuse to engage in real discussion. You argument is basically, “It’s a witch ’cause I said so.”

    Again, for those that don’t get it: the claims may be thought of as elements 1, 2, …, N. Ned’s argument is essentially saying that the elements are a witch rather than looking in the prior art and building obviousness arguments.

  • [Avatar for Curious]
    April 8, 2016 11:08 pm

    So, Ned, you think that is clever? This sounds like the reason the 1952 Patent Act was passed.
    Good point … are we now revisiting some ‘flash of genius’ test? Although, you have to love the [email protected]$ of a judge that says “screw the text of the statute … I know the result I want, and this is how I’m going to get it.”

  • [Avatar for Night Writer]
    Night Writer
    April 8, 2016 08:20 pm

    >>does not supply sufficient inventive concept to make the claim patent-eligible under § 101

    So, Ned, you think that is clever? This sounds like the reason the 1952 Patent Act was passed.

  • [Avatar for B]
    April 8, 2016 06:14 pm

    “But earlier I did say that new machines are patentable even though their utility for business.”

    Respectfully, you didn’t say that, but I’ll accept this as clarification without busting on you.

    “The question, of course, is whether one is actually claiming a new machine. Form over substance.”

    That sounds like a 102 argument

  • [Avatar for Edward Heller]
    Edward Heller
    April 8, 2016 05:52 pm

    [email protected], What I saw in the claim were new physical steps. Dyk’s complaint went to their breadth, the functional claiming aspect. But I do not believe the claims were so broadly set forth as to be at the level of a mere idea.

    The physical steps were new. I think the claim is eligible.

    Here is why I think that:

    “To be sure, it seems to be true, as GTG alleges, that at the time the ’179 patent was filed, no one was “using the non-coding sequence as a surrogate marker for the coding region allele.” Appellant’s Reply Br. at 7. Claim 1 was found by the patent examiner to be novel over the prior …”

    But he went on to hold that this admittedly new physical process was ineligible:

    “We thus hold that the simple mental process step of “detect[ing] the allele” in claim 1, either alone or in combination with the physical steps described above, does not supply sufficient inventive concept to make the claim patent-eligible under § 101.”

    Let me just say that Dyk is very smart and writes well. A substantial opponent.

  • [Avatar for Curious]
    April 8, 2016 05:36 pm

    There is a new Intelligent Designer 101 opinion by the CAFC in GENETIC TECHNOLOGIES LIMITED v. MERIAL L.L.C. released today.
    First thing I looked at was who wrote it: Dyk — a very ominous sign. Now I need to look at the disposition. Ah … an affirmance that claim was directed to nonstatutory subject matter — completely unsurprised here. Hmmm … now I wonder what the claims were really directed to.

    Claim 1 broadly covers essentially all applications, via standard experimental techniques, of the law of linkage disequilibrium to the problem of detecting
    coding sequences of DNA.

    I’m not sure that is a “law” of nature. What about applying a law to a specific problem, sounds patentable to me?

    The rest of it reads like a judge supporting a decision that was made before the briefs were filed.

    Medical diagnostics and personalized medicine — overrated technologies if you ask me. Who would want a personalized treatment for their specific ailment. If aspirin is good enough for me, it should be good enough for them.

    For those that aren’t attuned to my writing, there were certain sarcastic statements being made — I’ll let you figure out which ones they were.

  • [Avatar for Curious]
    April 8, 2016 05:26 pm

    District courts aren’t misapplying Alice, they are correctly applying it.
    LOL. I take it you haven’t read Alice.

    The Supreme Court wrote:
    At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. Mayo, 566 U. S., at ___ (slip op., at 2). At some level, “all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id., at ___ (slip op., at 2). Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. See Diamond v. Diehr, 450 U. S. 175, 187 (1981). “[A]pplication[s]” of such concepts “‘to a new and useful end,’” we have said, remain eligible for patent protection. Gottschalk v. Benson, 409 U. S. 63, 67 (1972).

    The Supreme Court also wrote:
    “It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here.” In characterizing Bilski, they stated “the Court grounded its conclusion that all of the claims at issue were abstract ideas in the understanding that risk hedging was a ‘fundamental economic practice.'” This was followed by “[l]ike the risk hedging in Bilski, the concept of intermediated settlement is ‘a fundamental economic practice long prevalent in our system of commerce.'”

    There was no grand sweeping call-to-arms against patents issued by SCOTUS — contrary to your misinformed opinion. Instead, they limited their decision to a very specific set of circumstances.

  • [Avatar for Night Writer]
    Night Writer
    April 8, 2016 04:26 pm

    Alex @39 where the claims essentially recite functions and results instead of means.

    To one skilled in the art the recitation of the functions is a set of solutions. That is well settled and I have even make numerous cites to textbooks that say EXACTLY this. Alex either you are incredibly ignorant or an anti-patent judicial activist. But, your opinion is simply false. Lemley should be removed from Stanford for having lied about this.

  • [Avatar for step back]
    step back
    April 8, 2016 04:11 pm

    Hold your horses back folk. It seems the fun never ends.

    There is a new Intelligent Designer 101 opinion by the CAFC in GENETIC TECHNOLOGIES LIMITED v. MERIAL L.L.C. released today.

    Any thoughts?

  • [Avatar for Alex in Chicago]
    Alex in Chicago
    April 8, 2016 03:44 pm

    I’m afraid the premise of this article is wrong. District courts aren’t misapplying Alice, they are correctly applying it.

    Your quibble is with Alice itself. And to change SCOTUS’s tune on software/abstract/business patents you need to stop bringing them cases where the claims essentially recite functions and results instead of means.

  • [Avatar for Edward Heller]
    Edward Heller
    April 8, 2016 03:06 pm

    [email protected], I’m sorry B. But earlier I did say that new machines are patentable even though their utility for business. The question, of course, is whether one is actually claiming a new machine. Form over substance.

  • [Avatar for step back]
    step back
    April 8, 2016 02:23 pm

    Hello Fred @22

    I think that is the point of confusion (PoC).

    We all use meaningless word noises like “technical” and “abstract” as framed in some Medieval “mind”-set to deny inventors their just due.

    The fact is that everything we perceive, be it sight, sound, taste, etc. is perceived in the biological brain organ and not in some abstract “mind” thing.

    Under the latest rubric, the radio would not be patent eligible because it merely conveys abstract information to the “mind” where the business practice of communicating information was old and notorious long before Marconi (or whomever) starting playing with electric spark gaps. For example, people used smoke signals, mirrors, semaphore flags to communicate. Hence the radio is merely the abstract notion of communicating coupled with the new fangled electromotive force thing and adding the words “apply it” to same. Ergo not patent eligible. The word “computer” is latest substitute for the electromotive force thing and adding the words “apply it” to same. No matter what people invent, the wax based nose of law can be twisted to say not “eligible”.

    As the late Justice Scalia of the US Supreme Court would say re the latest pontifications from his own Court about “abstract” and “laws of nature” and stifling “innovation” …. all of this is jiggery pokery gobbledygook. When are the spectators along the parade route going to notice that the royal emperors march with no reality-based clothes about them?

  • [Avatar for B]
    April 8, 2016 01:39 pm

    Mssr Heller,

    You state: “The problem with business methods is that although they produce results, the results are not within the useful arts.”

    Really? How about a machine that takes instantaneous market and non-market information to provide price estimates for items for sale for similar (but not the same) items, compares those price estimates against actual for sale information on the items for sale, then provides buy/sell indicators including which vendor provides the best deal. No actual business is performed, but it is a tool to aid in business decisions. Business method? It’s certainly class 705, and will land you in Art Unit 36–.

  • [Avatar for Edward Heller]
    Edward Heller
    April 8, 2016 01:14 pm

    anon, “broader useful arts?” Where to you get this stuff? Really.

  • [Avatar for Curious]
    April 8, 2016 12:56 pm

    I will say this–anyone that doesn’t agree with that is either very ignorant or intellectually dishonest and is paying paid not to agree with it
    Let me suggest an alternative explanation — perhaps one’s opinion could be the product of their generation. We are all shaped by our life experiences. What is patentable (or at least was has been patentable) today would boggle the mind of someone practicing patent law 40 years ago.

    The inventions of 40 years ago are not like the inventions of today. The engineers of today work on entirely different problems using entirely different tools (BTW: a computer is a tool — and extremely complex and flexible tool).

    I hope that when I practice patent law for 40 years, I will continue to keep my mind open as to what can be patentable. So long as 35 USC 101 is written the way it is, I will always be inclined to place very few limits as to what is patentable subject matter.

  • [Avatar for Night Writer]
    Night Writer
    April 8, 2016 12:48 pm

    Fred: In the past there was the “trick” to be in the useful art: the attorneys add “computer” to a claimed method or step.

    This is just a ridiculous statement. The fact is that without the machines the information processing would not be done. And anyone that understands technology knows that what is happening is a very fine intertwining of business with the information processing machines with advances in both.

    “purely intellectual” — what nonsense. What would be the point of patenting this? Huh? Sheesh. More witch law nonsense.

  • [Avatar for Curious]
    April 8, 2016 12:27 pm

    Generally, processing for making money. The “for” is important.
    I don’t know of many processors (i.e., manufacturers) that do their processing for anything other than “money.”

    Different definition?

  • [Avatar for Night Writer]
    Night Writer
    April 8, 2016 11:40 am

    Edward you didn’t answer the gear question and your arguments that “business methods” which you seem to want to extend to anything that isn’t iron are ridiculous. A program to figure out what job openings are likely a best fit for you aren’t useful? It could save a person 1000’s of hours of time and make opportunities to them that would not otherwise be. Ridiculous to think they are not useful.

    Moreover–to the intellectually honest–what is happening is —like all technology–the information processors are changing how business is done. They are enabling new forms of business. They are intertwined in exactly the same way the advances in physical labor were during the great iron age of innovation. Physical vs. mental. Information processing machines.

    I will say this–anyone that doesn’t agree with that is either very ignorant or intellectually dishonest and is paying paid not to agree with it. This a fundamental scientific truth. This is reality.

  • [Avatar for Anon]
    April 8, 2016 10:02 am

    Two posts caught in filter – please release. Thanks.

  • [Avatar for Fred]
    April 8, 2016 10:02 am

    @Anon: for sure I know that.

    My only point is that the intellectual debate about this has the same framework than what happened in Europe.

    When reading the posts here, I’ve the feeling to be in a time machine, transported more than 15 years ago. Replace “useful” by “technical”, this is it.

  • [Avatar for Fred]
    April 8, 2016 09:59 am

    Edward, I agree. Result of business method are in business (business method = method for doing business).

    In the past there was the “trick” to be in the useful art: the attorneys add “computer” to a claimed method or step.

    By doing so, the method was not anymore a pure intellectual activity in business area. Since there is a computer thing, it is at least partly in the useful art (there is some implicit steps like “transforming electrical signal”, “powering”,…). Said in other words, there are some “tangible” results in the useful art. Not new results but real anyway.

    Like machine.

  • [Avatar for Anon]
    April 8, 2016 09:58 am

    Mr Heller,

    With all due respect, your jihad against “business method” patents shows that you just do not have a clue as to what is included in the Useful Arts.

  • [Avatar for Anon]
    April 8, 2016 09:55 am

    Please keep in mind Fred that the US patent set up is NOT a “technical arts” regime, but is purposefully a broader Useful Arts regime.

    That is a critical difference for you and for anyone that wants to attempt to draw comparisons between US law and the law of the EPO.

  • [Avatar for Edward Heller]
    Edward Heller
    April 8, 2016 09:37 am

    Fred, of course novelty and utility are distinct. The problem with business methods is that although they produce results, the results are not within the useful arts.

    A business machine useful in business is nevertheless a machine. But a process? It’s only tie to the useful Arts is its result.

  • [Avatar for Fred]
    April 8, 2016 08:49 am

    @Edward: novelty and utility may be distinct and independant. The “and” is rather here to recite the cummulative condition.

    Problem with mixing eligibility (“usefull”) with patentability (“new”) is that it means utility is a relative concept. “Is usefull what is new”.

    It is a stand point that may be defended. Why not.

    Most of us rather consider that utility (like technical aspect in EP) is an absolute concept.

  • [Avatar for Edward Heller]
    Edward Heller
    April 8, 2016 08:29 am

    [email protected], there is a “new or improved” requirement in 101, which is what we are talking about. A process must be new or improved in some way. One way could be the result it produces. Another could be in the way it produces a known result, such as in Versata, that is improved.

    So, I agree with the point you just made. Thanks.

    As to a business method definition? Generally, processing for making money. The “for” is important.

  • [Avatar for Fred]
    April 8, 2016 08:02 am

    That’s the point to me. In Europe, it was determined that mixing patent eligibility with patentabilty is necessarly a failure (Alice does this with the “non obvious” limitation). So a §103 approach was thus chosen.

    But it is only a way to properly adress the core of the problem. In Europe, we have to determine if the difference between the claim and the closest prior art was is “technical”. We do not have a positive definition of “technical”. We know an invention is technical when we see it but that’s it. But nothing in the law define it. Even for us, it is very difficult to tell if an invention is technical or not for the borderline cases.

    Multiple debates took place: cognitive content of a GUI, nature of data in the processing…

    I feel it is in fact the same type of debate in the US. You don’t have a positive definition of what is “useful” and today you are asked the question. Court has begun to answer (not in proper way) by listing what is not useful.

    Once the problem has shifted to the §103 approach, you will have to properly adress the “usefulness” of an invention, as we had to do years ago with the “technical” term (and still continue to do btw).

  • [Avatar for Night Writer]
    Night Writer
    April 8, 2016 07:34 am

    @15 Edward: I think 16 and 17 answered you pretty well. Moreover, the way to think about this is there are elements in a claim. Your statements amount to adding some extra conditions prior to applying 102/103/112. It is a form of witch law. Your elements aren’t an invention, but a witch.

    I would also say that educated people should try to understand that what is happening is information processing machines are intertwining with all aspects of our world including us to advance technology. Improving work flow with an information processing machine or producing better movie recommendations is surely useful. Crazy stuff that people want to exclude what is at the core of the advances we are going to see over the next 100 years.

    Out of curiosity, there are these little machines with gears that can be used to predict the phase of the moon. Now, do you think that the gears should not be patent eligible? What if someone else figured out how to produce eclipse predictions by adding some gears? Are those new gears patent eligible?

    (To me it is just bizarre that people want to exclude information processing when it includes people. Just strange.)

  • [Avatar for Anon]
    April 8, 2016 06:26 am

    Mr. Heller @ 15,

    Your view of process is a false and limited one. Your view requires “process” to be a sub-tier category and not a full category on equal par with the hard goods items. Your view elevates Machine or Transformation into a legal requirement, as opposed to a clue.

    All of these things are known to you.

    Why do you persist in presenting the law in a false light?

  • [Avatar for Fred]
    April 8, 2016 04:56 am

    PS: re the “supplementary effect”, it does not necessarly involve a technical effect about the computer as such.

    Any technical effet may be considered (for example: operating a motor with a software is a technical effect. The software per se may thus be patentable if non obvious. An GUI may also be patentable if it presents information about the operation of the machine and proposes to the user better operation based on the actual state of the machine…).

    Said in other words: if the only technical effect is the known technical interaction between soft and hard, it is dead.

  • [Avatar for Fred]
    April 8, 2016 04:45 am

    As EP attorney, the current discussion makes me think of what happened decades ago before the EPO boards of appeal. Alice approach is somehow in line with former analysis of software patenting. But the boards conclude there was an intellectual trap one can’t escape. That’s why boards rather proposed to study software patenting in terms of inventive step. I’d say it is the point with the amici of Lilly and the present post of Mackin that propose kind of “EP approach”.

    However, in Europe, we have been helped in finding our way out of the trap by the law which (negatively) define what is an invention, combined with a strong will to patent only technical invention.

    That’s why question re hardware/software, it is a non-sens for the EP boards. They analyse it only in terms of technical effect. In case of a computer-centric invention, if running the software does not imply a technical effect that goes beyond the normal one (e.g. current circulating in a circuit by the simple interaction of software/hardware), it is obvious (a §103 reasoning is used).

    That’s why, in Europe, a buziness method software is not patentable since it does not imply supplementary technical effect. It is the same with presentation of information, games, and so on.

  • [Avatar for Curious]
    April 8, 2016 12:03 am

    Congress intended that processes generally cover ways of making things, or using machines, etc. to produces new and beneficial results
    Business methods performed on computers don’t produce beneficial results? BTW — there is no requirement that the results have to be new — only how one gets to the results has to be novel (and nonobvious).

    Also, (and I’ve know we asked this questions dozens of times) can you please provide to us a definition of what does (and does not) constitute a “business method”?

  • [Avatar for Edward Heller]
    Edward Heller
    April 7, 2016 07:47 pm

    Night, there is a lot of software out there that that I support for the reasons I have previously stated. This kind of software improves computers, computer systems, larger systems or apparatus or processes. But I have always opposed business method patents. That does not make me anti-patent no matter how much you like to think so. I simply look at the statutes which require inventions to be in machines, manufactures or composition or processes. Now with the latter, Congress intended that processes generally cover ways of making things, or using machines, etc. to produces new and beneficial results. I think Congress intended that these results be within the Useful Arts. I just do not believe that business methods are within the Useful Arts.

    But, if a software invention improves the use of a computer to process a particular kind of data as in Versata, well I can see that such software is an improvement in the computer system, and not simply an improvement in a business method.

  • [Avatar for Anon]
    April 7, 2016 07:37 pm

    There is NO intellectual honesty in claiming software as anything than what it is: a manufacture and machine component.

    It is NOT a machine in and of itself.

    It is NOT a method.

    Mr. Heller’s proposition of “he software should be patentable when claimed as machine or process.” is without merit, without factual basis, and without legal basis.

    That being said, an invention can be – and often is – claimed under one or more of the statutory categories.

    Also, software is most easily discussed in terms of action, but this should not be confused as software BEING action. I have often disagreed with Gene Quinn on this point and cautioned Gene that this tendency causes confusion and is too easily abused in the discussion of software patentability. Mr. Heller serves as exhibit 1 for this (purposeful?) confusion,

    This area is contentious enough without the purposeful duplicity of “claiming as” in order to somehow “preserve” a particular philosophical view of patent eligibility. As attorneys and agents of the law, we should be aiming for clarity and understanding.

  • [Avatar for step back]
    step back
    April 7, 2016 07:24 pm

    Angry Dude @4,

    Right on. Even under the basic rules of English the one word, “computer” is generic for computer. So WTF is a “generic” computer?

    For myself I always read it as geriatrics’ computer because I assume the intelligentsia of SCOTUS are probably still two finger poking away on their key punch card machines (in COBOL of course) and they haven’t yet succeeded in getting their Hello World program to work. 😉

  • [Avatar for Justin Blows]
    Justin Blows
    April 7, 2016 06:42 pm

    There are patents that claim rather “abstract” algorithms but are tightly targeted and the inventiveness is clear, and that the courts have found valid.

    Here is a list of software patents found valid by the US courts, which I found very useful:


    Based on the description of the invention above, I am very surprised that a district court didn’t find the invention patentable, extrapolating from the data in the list.

    You might also want to check out UBER’s patents as an example of ‘business methods” that were patented:


    If UBER’s patents are patentable, then I think the invention described above most definitely should be.

  • [Avatar for AC]
    April 7, 2016 03:03 pm

    Given that Scotus has proven time and again they:
    don’t know a fig about technology or patent law,
    love to ignore patent precedent,
    make general statements about patents and technology when specific patent-related requests about real issues have been asked (without answering these requests), and
    generally hate the power the CAFC holds,

    it is likely that this infestation of ignorance about patents and their value will continue to fester until some of the big companies (e.g., Google) start hurting due to foreign competition (e.g., technology from China). Likely this will be 10-15 years as the American educational system seems to be collapsing due to a combination of lack of funds and emphasis on teaching to test results rather than teaching critical thinking skills…

    Add another 5 or so years for a) the corporations to lobby and b) a case to make it up to Scotus. A 20-25 year swing to greater patentability at this point seems inevitable to me.

  • [Avatar for Night Writer]
    Night Writer
    April 7, 2016 12:33 pm

    And please, Edward, don’t be condescending and tell me that I just don’t understand you. I know patent law at least as well as you. You little game of putting another step in front of “software” is right out of Lemley’s play book.

  • [Avatar for Night Writer]
    Night Writer
    April 7, 2016 12:29 pm

    @4 Angry Dude is absolutely correct. Edward you are an anti-patent judicial activist that is constantly denying what you are.

    @4 Angry Dude–the key to why there is no separation between software and hardware in our law is that there is no technical requirement. With a technical requirement like at the EPO then you can use it as a knife to cut out that which does not go to the actual operation of the machine. (I know it is very messy and I’ve done appeals, etc. at the EPO. Spent a lot of client money over there.)

  • [Avatar for Night Writer]
    Night Writer
    April 7, 2016 12:26 pm

    And again Edward proved that he is anti-patent.

  • [Avatar for Night Writer]
    Night Writer
    April 7, 2016 12:24 pm

    Edward @1: I do believe that if software improves the usability of a computer, or provides an innovative way to process information that reduces time, improves security or the like, the software should be patentable when claimed as machine or process.

    That is just fabricated nonsense. Useful now includes this extra burden? We do not have a technical requirement which means it is impossible to distinguish between software and hardware under our laws.

    I don’t think you are ever going to get any relief from the Fed. Cir. It is stacked with Google judges who don’t even have a rudimentary understanding of science. It is actually kind of laughable to think you are going to go to the Fed. Cir. these days for clarity on anything to do with patent law. What you will get is judicial activism that attempts to weaken patents at every turn.

  • [Avatar for Kip]
    April 7, 2016 12:05 pm

    Where’s the amicus brief? Come on, post it online!

  • [Avatar for B]
    April 7, 2016 11:38 am

    My 2 cents: It should be harder to establish a prima facie rejection under 101/Alice than under 103 assuming In re Venner applies. Alice requires that claim limitations be routine, conventional individually and as an ordered combination. 103 requires claim limitations only be suggested. 101/Alice takes into account technological improvements as does 103 as indicia of patentability.

    That said, take a look at the recent PTAB decisions involving Alice. Most decisions are based on a clueless understanding of the law. I also did a recent survey of Art Unit 3689. Not a single ccl/705 patent has issued in the last year from ANY examiner, and they’ve gone 101 nuts. Five examiners have never issued a ccl/705 patent, and SPE Mooneyham hasn’t issued a ccl/705 patent since 2012.
    BTW, angry dude – you’re absolutely correct.

  • [Avatar for Simon Elliott]
    Simon Elliott
    April 7, 2016 11:29 am

    The Federal Circuit has tried to implement some consistency, but gets struck down by the SCOTUS who replaces bright line rules with vague tests that leave everyone guessing. So, who can blame them?

  • [Avatar for angry dude]
    angry dude
    April 7, 2016 10:19 am

    There is no “general purpose” or “special purpose” computer – these are just meaningless words

    There is no line between software and hardware – everything can be implemented either way

    We live at the times when mockery and farce are practiced everyday by judges and politicians

    This is the new norm, so get used to it

    And no more patents for me

    Fool me once – shame on you, fool me twice – shame on me

    Thanks but no thanks

  • [Avatar for Curious]
    April 7, 2016 09:23 am

    I think your ‘request’ that the CAFC chime in is likely to prove futile (or worse
    The CAFC has chimed in — in the form of an avalanche of Rule 36 affirmances. It is the golden era to be an infringer of software patents. Win at the lower level — affirmance at the CAFC. Lose at the lower level — reversal by the CAFC. Want to institute an IPR against a pesky patent? The USPTO will be more than happy to send the patent to the ‘patent death squads.’

    If I was an outsider looking in, this would seem pretty comical.

    However….since the road to the SCOTUS has to pass through the CAFC…you don’t really have much choice.
    One would hope, after reading the measured (yet still lacking) language of Alice, that SCOTUS would eventually step in to put a stop to this misapplication of Alice. However, I’m not sure if SCOTUS is particularly interested in stopping the largest judicially-sanctioned giveaway of property rights (from inventors to infringers) this country has probably seen in our lifetimes.

  • [Avatar for Valuationguy]
    April 7, 2016 08:56 am

    I think your ‘request’ that the CAFC chime in is likely to prove futile (or worse…counterproductive to your interests) as the currently constituted CAFC majority seems to be on a path to make patent invalidity easier than ever. However….since the road to the SCOTUS has to pass through the CAFC…you don’t really have much choice.

  • [Avatar for Edward Heller]
    Edward Heller
    April 7, 2016 07:41 am

    Kelly, I think the problem is simple — if one puts “computer implemented” or the like — do it on a computer, in the claims, it is a red flag to the court to find the claims invalid under 101. It is almost as if the burden to prove patentability shifted to the patent holder.

    I do believe that if software improves the usability of a computer, or provides an innovative way to process information that reduces time, improves security or the like, the software should be patentable when claimed as machine or process.