CAFC Snubs Inventor’s Argument that 101 Rejections Violate APA

“The CAFC acknowledged that while there have been ‘close cases under the Alice/Mayo standard’ with respect to the ‘void-for-vagueness doctrine,’ this is not such a case.”

https://depositphotos.com/70164509/stock-photo-court-of-appeals-federal-circuit.htmlThe U.S. Court of Appeals for the Federal Circuit, (CAFC) in a precedential decision issued today, affirmed the Patent Trial and Appeal Board (PTAB) finding that claims to a computer system for identifying eligibility for Social Security Disability Insurance (SSDI) benefits are invalid as patent ineligible. The opinion was authored by Judge Chen.

The case originates from an examiner’s rejection of Jeffrey Killian’s claims of U.S. Patent Application No. 14/450,042 under Section 101 as being directed to “the abstract idea of ‘determining eligibility for social security disability insurance . . . benefits’” and lacking anything “significantly more” to satisfy Step 2 of the Alice-Mayo two-part test.

On appeal to the PTAB, the Board found the claims to be directed to the patent-ineligible abstract idea of “a search algorithm for identifying people who may be eligible for SSDI benefits they are not receiving” and said the “essential steps” of the claims can be performed in the human mind.  The remaining steps amounted to mere data gathering and therefore constituted “insignificant extra-solution activity,” said the PTAB. Rehearing was denied.

CAFC: The Claims Fail Alice/Mayo

In its discussion, the CAFC said that the claims do not meet the threshold test of Alice/Mayo and agreed with the Board that they cover an abstract mental process. Specifically, the court said:

“The thrust of the ’042 application’s representative claim 1 is the collection of information from various sources (a Federal database, a State database, and a caseworker) and understanding the meaning of that information (determining whether a person is receiving SSDI benefits and determining whether they are eligible for benefits under the law)…. The Board correctly concluded that ‘[t]hese steps can be performed by a human, using ‘observation, evaluation, judgment, [and] opinion,’ because they involve making determinations and identifications, which are mental tasks humans routinely do.’” [citations omitted]

That the steps are performed on a generic computer does not save the claims, continued the CAFC. And at Alice step two, the court found no inventive concept. Citing to Electric Power Group v. Alstom, the court said that, similarly to that case, “the claims here do not detail how the computer should go about determining eligibility for benefits, beyond saying that the computer should determine eligibility based ‘on the identified information’ and ‘current SSDI benefit legal requirements.’” This is the same process a person would engage in to determine benefits on their own, “with or without a computer,” said the court.

Killian: Current 101 Rejections are Arbitrary and Capricious Under APA

On appeal, Killian had argued that the standard articulated in Alice and Mayo for determining eligibility is so indefinite and poorly defined that all decisions of the PTAB and courts finding a claim ineligible should be found “arbitrary and capricious” under the Administrative Procedures Act (APA). Killian said the terms “abstract idea” and “inventive concept” are too vague and that, after the Supreme Court’s landmark ruling in Dobbs v. Jackson Women’s Health Organization, it should be held that the various Section 101 jurisprudence handed down by the Court in Alice; Mayo; Bilski; Parker v. Flook; and Benson are “mere policy preferences” that “stand on exceptionally weak constitutional grounds.”

The CAFC was not persuaded and noted that the APA governs judicial review of “agency action,” and does not apply to courts. As to Killian’s allegations of vagueness, the CAFC acknowledged that while there have been “close cases under the Alice/Mayo standard” with respect to the “void-for-vagueness doctrine,” this is not such a case. The court said Killian’s claims are “clearly patent ineligible in view of our precedent,” and that he failed to show the CAFC’s decisions applying Alice/Mayo are improper.

Bound by SCOTUS

As to Killian’s claim that all Board decisions finding claims ineligible are arbitrary and capricious under the APA, the court said his gripe is really with the Supreme Court, which once again dooms his argument:

“At heart, Mr. Killian attacks the Supreme Court’s interpretation of § 101, which it determined includes an implicit exception, as well as the common law standard promulgated by the Court under that interpretation—arguing that the vagueness of those decisions has led to arbitrary and capricious agency decision making. But, as we have already explained, the APA does not empower us to review decisions of ‘the courts of the United States’ because they are not agencies.”

Ultimately, said the CAFC, “we may not announce that the Board acts arbitrarily and capriciously merely by applying binding judicial precedent, as urged by Mr. Killian.”

The Guidance is There, Says the Court

The court next addressed Killian’s expressed desire for “a single non-capricious definition or limiting principle” for “abstract idea” and “inventive concept.” While it would be impossible to articulate such a definition for “abstract idea,” since there are various types of abstract ideas, “our court has provided guidance as to what constitutes an abstract idea,” said the CAFC. The court cited cases including Affinity Labs, Elec. Power Grp, Interval Licensing, Ericsson Inc. v. TCL Commc’n Tech. Holdings Ltd. and Finjan, Inc. v. Blue Coat Sys., Inc., as evidence of this guidance.

The CAFC also pointed to cases such as BAS- COM Glob. Internet Servs., Inc. v. AT&T Mobility LLC and buySAFE, Inc. v. Google, Inc. to demonstrate its past guidance on the definition of “inventive concept,” particularly as it applies to claims for computer implementations of abstract ideas. Specifically, claims for methods that “improve[] an existing technological process” include an inventive concept at step two, as may claims that “recite a specific, discrete implementation of the abstract idea,” said the court

However, even if the CAFC was persuaded that the Alice/Mayo test is unclear, both it and the PTAB would be bound by Supreme Court precedent and thus the court’s hands are tied until the test is overruled, the opinion explained.

Killian also argued that the “mental steps” doctrine has no foundation in modern patent law and that Diamond v. Diehr and Bilski rejected the doctrine. The CAFC called this analysis “plainly incorrect,” and a misreading of the holdings in those cases.

The court finally addressed Killian’s argument that the examiner and the PTAB had failed to properly consider 55 pages of documents presented to show evidence of eligibility, but the court said that since substantial evidence supports the finding that the claims don’t meet step two, no further evidence is needed. Furthermore, the court said Killian had failed to explain with specificity what the documents show or to include them in the joint appendix.

In an article authored by Killian’s counsel, Burman York Mathis, this May for IPWatchdog, he said of Killian’s appeal:

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

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143 comments so far.

  • [Avatar for concerned]
    concerned
    August 30, 2022 08:13 am

    No. Thank you for the suggestion.

  • [Avatar for primary examiner]
    primary examiner
    August 30, 2022 07:53 am

    “So you not take the bet if it could have been legally frame. You did not take the other $500,000 bet either. Parting of the Red Sea, walked on water, rose after 3 days. There could be a higher authority that sent me on my journey. I have been brought a very long way and many doors were open. Just the story on how I was hired by the State of Ohio suggests the same. Cold called on Monday tonight (December 20th) and I was not looking for a job. Driven to my interview by the cold caller the next morning (December 21st) and hired the following day (December 22nd) on a Wednesday in the middle of the pay period for a classified (not political) position. Even the Governor could not hire his son that fast in a classified position. My story just gets even more interesting thereafter.”
    Have you considered writing sci-fi novels?

  • [Avatar for concerned]
    concerned
    August 30, 2022 06:13 am

    So you not take the bet if it could have been legally frame. You did not take the other $500,000 bet either.

    Parting of the Red Sea, walked on water, rose after 3 days. There could be a higher authority that sent me on my journey. I have been brought a very long way and many doors were open.

    Just the story on how I was hired by the State of Ohio suggests the same. Cold called on Monday tonight (December 20th) and I was not looking for a job. Driven to my interview by the cold caller the next morning (December 21st) and hired the following day (December 22nd) on a Wednesday in the middle of the pay period for a classified (not political) position. Even the Governor could not hire his son that fast in a classified position. My story just gets even more interesting thereafter.

    A very important door may have been opened yesterday. Mr. Quinn would be smiling if I was at liberty to give details. Do not underestimate B’s knowledge or ability.

  • [Avatar for Curious]
    Curious
    August 29, 2022 09:45 pm

    A 1% chance? So if I put up $10,000, you would put up $1 million?
    No. Bottom 1% is not the same as 1% chance. The bottom 1% has a 0% chance of getting a patent.

    If B is successful in his arguments, many people would be helped.
    You really think a solo attorney with maybe a couple appeals to the Federal Circuit under his belt is going to succeed where more experienced attorneys with far greater resources and better claims have failed over the last 8 years? I’m still sticking with the phrase “delusional.”

    We still believe.
    Santa Claus, tooth fairy, Sasquatch, Loch Ness Monster, Easter bunny?

  • [Avatar for concerned]
    concerned
    August 29, 2022 05:52 pm

    A 1% chance? So if I put up $10,000, you would put up $1 million?

    If we go back and refigure our claims and get a patent, one inventor is helped.

    If B is successful in his arguments, many people would be helped.

    My current claims were patentable from 1952 through mid 2014. Roe was the law from 1972 through 2022 and reversed. It can happen.

    We still believe.

  • [Avatar for Curious]
    Curious
    August 29, 2022 04:09 pm

    Yeah, so close that Chen had to lie three times (I have the receipts), and violate the holding of Diehr, Bilski, Alice Corp, and DDR Holdings (which he wrote) to make such a statement.
    I’m sorry, Bilski, Alice, and DDR Holdings don’t help you. The vast majority of CAFC decisions post-Alice don’t help you. I cannot reiterate this strong enough. Of all the claims that I see on a daily basis over the last 10 years, Concern’s claims represent the bottom 1% in terms of ability to get past 101. They aren’t even remotely close.

    You have a better chance of getting a patent by understanding and acknowledging why your invention fails the current analysis, going back to the drawing board and figuring out ways to overcome the 101 rejection (if such ways are available), rather than hoping someone accesses a chain to change the official guidance and current policies.
    Bingo. Concerned is hoping for some Deus Ex Machina to help save the day instead of doing the hard work of presenting good claims before the Examiner.

    The PTAB has rejected claims that are in a much better state than yours, in terms of 101. You refuse to acknowledge the facts, and resort to attack and insult anyone that points this out to you.
    All truth.

  • [Avatar for concerned]
    concerned
    August 29, 2022 12:09 pm

    Night Writer just asked for a suggestion, not help review my Specification, draft my claims, and write my legal arguments?

    You are a public servant. So was I. We have different views on how to serve the public.

  • [Avatar for primary examiner]
    primary examiner
    August 29, 2022 11:49 am

    “Just another thing to not tell your neighbors: As a public servant, no free advice or action to solve a major problem.”
    Are you expecting me (or any patent examiner that is not assigned to your application) to help review your Specification, draft your claims, and write your legal arguments? That’s what patent attorneys are for.
    Noone owes you any free advice or action by the way. Like Curious mentioned earlier, you are not special. The PTAB has rejected claims that are in a much better state than yours, in terms of 101. You refuse to acknowledge the facts, and resort to attack and insult anyone that points this out to you.

  • [Avatar for concerned]
    concerned
    August 29, 2022 11:42 am

    Primary Examiner:

    Alright request denied and no free advice. Got it.

    My suggestion and B’s attempts via appeal are a way to help many people, just not my one patent. Winning on appeal, if it happens, would give case law and clarification, so would my suggestion.

    Just another thing to not tell your neighbors: As a public servant, no free advice or action to solve a major problem.

    I do not think the USPTO uses tax dollars, I did my fees.

  • [Avatar for primary examiner]
    primary examiner
    August 29, 2022 11:14 am

    You have a better chance of getting a patent by understanding and acknowledging why your invention fails the current analysis, going back to the drawing board and figuring out ways to overcome the 101 rejection (if such ways are available), rather than hoping someone accesses a chain to change the official guidance and current policies.

  • [Avatar for concerned]
    concerned
    August 29, 2022 11:09 am

    I know that Commissioner Vidal and the CAFC would make policy.

    I was a public servant at one time, even had the title of examiner. My ideas over the years led to two laws, a first in the nation accomplishment, largest cash collection in the AGO’s history even though not employed by them, put in front of the Blue Ribbon Commission, Lt. Governor, numerous cabinet members and state representatives, inspired strangers to invest in my current idea, Letter of Intent from CGI and others things.

    And there were many times people gave me no shot.

    Your boss’ boss probably has access to the chain. Being part of this resolution could define your career and help a lot of people.

    Take a chance.

  • [Avatar for Primary examiner]
    Primary examiner
    August 29, 2022 10:43 am

    I do not have direct or indirect access to “the chain”. Official guidance and policies are not made by an examiner or spe accessing “the chain”.

  • [Avatar for concerned]
    concerned
    August 29, 2022 10:27 am

    Primary Examiner:

    Alright. Then please ask a person in authority to considering sending it up the chain.

    I’m sure a lot of people in the patent community would be grateful if just these two issues were resolved.

  • [Avatar for primary examiner]
    primary examiner
    August 29, 2022 10:16 am

    “Well within the authority of both groups. En banc my case if needed for some kind of official statement. Primary Examiner can send idea up the chain for consideration.”
    Official statements and policies are not made based on examiners (I may add SPEs) sending up an idea up the chain for consideration.

  • [Avatar for concerned]
    concerned
    August 29, 2022 10:11 am

    Night Writer’s suggestion is great on the micro, I would take this suggestion.

    My suggestion to have Commissioner Vidal approach the CAFC was for the macro. Commissioner Vidal and CAFC strike a deal that improving functionality and improving operational are in fact the same thing. Also address routine, conventional and well understood cannot be something that has never happened.

    Well within the authority of both groups. En banc my case if needed for some kind of official statement. Primary Examiner can send idea up the chain for consideration.

    It would solve a lot of s101 issues without Congress or SCOTUS.

  • [Avatar for primary examiner]
    primary examiner
    August 29, 2022 09:59 am

    Night Writer: I haven’t read the entire Spec., nor do I have any desire to do it, or to provide free advice. There are better equipped, or more interested people to do that.

  • [Avatar for concerned]
    concerned
    August 29, 2022 09:58 am

    Actually, the comments are not meant to be insulting. Primary Examiner and Curious do not use their real names. B and concerned real names are known.

    I’m suggesting that people who hide their opinions and identities may be concealing something embarrassing. Like when I hide my 4th grade report card from my folks. Never made it to 5th grade as implied by some on this forum.

  • [Avatar for Night Writer]
    Night Writer
    August 29, 2022 09:53 am

    Primary Examiner:

    Do you see any possible amendments that would in your opinion make the claims eligible?

  • [Avatar for B]
    B
    August 29, 2022 09:19 am

    @ Primary examiner “When the delusional arguments run out, the insults come in…keep it coming. It’s highly entertaining”

    Earth to PE – you started the insults

  • [Avatar for B]
    B
    August 29, 2022 09:18 am

    @ Concerned “Why are they ridiculous? As ACCURATELY stated by Chen, “[w]hile there are close cases under the Alice/Mayo standard, the ’042 application does not present such a close case.”

    Yeah, so close that Chen had to lie three times (I have the receipts), and violate the holding of Diehr, Bilski, Alice Corp, and DDR Holdings (which he wrote) to make such a statement.

  • [Avatar for primary examiner]
    primary examiner
    August 29, 2022 09:17 am

    When the delusional arguments run out, the insults come in…keep it coming.
    It’s highly entertaining 😀

  • [Avatar for B]
    B
    August 29, 2022 09:14 am

    @ Primary examiner ” But congratulations on your numerous comments award!”

    You are such a very sad and angry person

  • [Avatar for concerned]
    concerned
    August 29, 2022 06:39 am

    What is delusional in a democracy are elected officials in Congress being supplanted by appointed people.

    I tried to get you to state some of your opinions in front of your neighbors as I feel you would embarrass yourself. You are smart enough to not do the same.

    Democracy dies in darkness from your neighbors.

  • [Avatar for Primary examiner]
    Primary examiner
    August 29, 2022 06:26 am

    Half of the comments are delusional arguments. But congratulations on your numerous comments award!

  • [Avatar for concerned]
    concerned
    August 29, 2022 06:00 am

    119 comments and counting. This comment string may be the longest in IPWatchdog history. My first article in 2018 had 94 comments.

    The Board tells me I met the law as written by Congress and I had a practical application, just not in the legal sense. Perhaps we should leave law making to our elected officials, not appointed judges and other non-elected personnel?

    All of Congress must be like me, dumber than 5th graders. Too stupid to originally put in the exceptions into the statue that judges insist are really there.

    Or that Congress has acquiesce to all this judicial tinkering by sitting on their hands. Three Congressional people cannot agree on lunch. On an issue as big as abortion, it took judge stacking, not legislation.

    Every one has an opinion, too bad for me that that the opinion of Congress does not apparently count.

  • [Avatar for B]
    B
    August 28, 2022 07:55 pm

    @ Primary Examiner “Wow. Are we being pranked ??”

    Wow, look at that! A snarky statement rather than an honest answer

  • [Avatar for B]
    B
    August 28, 2022 07:53 pm

    @ Primary Examiner “If I were you,I would put a lot more value on feedback from people that understand the mpep rather than IT specialists and benefit”

    The MPEP is selective garbage penned by the PTO, and I’ve met some of the people who penned the patent eligibility section.

    They’re idiots, and even if they weren’t, the CAFC jurisprudence is a mess.

    You name a patent eligibility opinion.

    I’ll give you three that say the opposite

    coordinators

  • [Avatar for Primary examiner]
    Primary examiner
    August 28, 2022 07:32 pm

    If I were you,I would put a lot more value on feedback from people that understand the mpep rather than IT specialists and benefit coordinators.
    And,you know,acknowledge what the problem is first. Until you do that , you’re spinning in a circle.

  • [Avatar for concerned]
    concerned
    August 28, 2022 07:24 pm

    Primary Examiner:

    I agree. The SSDI benefit is not a technology. People off the street would understand in 30 seconds that I improved their technology to find benefits that current means cannot.

    People outside the USPTO laugh when I tell them some of the things I am told. You do mean those people?

    One person had been a benefit coordinator for years. Gave seminars around the state. She mocks this whole thing. Chalks it up to a government thing.

  • [Avatar for Primary examiner]
    Primary examiner
    August 28, 2022 07:09 pm

    Using a technology and being a technology are different things.
    Your process improves the finding of insurance benefits. Which,again,is not a technology. Most people off the street would understand this in less than 5 minutes.

  • [Avatar for concerned]
    concerned
    August 28, 2022 06:55 pm

    Primary Examiner:

    https://oig.ssa.gov/congressional-testimony/2018-09-27-newsroom-congressional-testimony-sep27-it-modernization/

    Better tell the Inspector General that Social Security benefit programs do not use technology. My process is aimed to improve their technology, find errors and omissions that their current technology cannot find.

    Curious: I will ask B to place our briefs on-line if you put some of yours on-line. I want to see if you are as great as you claim.

  • [Avatar for Primary examiner]
    Primary examiner
    August 28, 2022 05:47 pm

    Ssdi is a technology bc the application is in tech.center 3600.

    Wow. Are we being pranked ??

  • [Avatar for Curious]
    Curious
    August 28, 2022 05:41 pm

    Anon writes:
    I find it ‘curious’ how furious Curious is in NOT correcting the very plainly on face issues as exemplified in this case.

    In response, I find it typical for Anon to make an ambiguous comment that only he knows what he is talking about. What the f___ are the “very plain on face issues”?

    BTW, one does not “correct” issues. One addresses issues. Again, I have no f’n clue what you are talking about.

  • [Avatar for Curious]
    Curious
    August 28, 2022 05:39 pm

    The claim is the stated word in this MPEP section. Technology is not mentioned as a condition.
    Look at the 2019 Patent Eligibility Guidelines and what can serve to integrate the abstract idea into a practical application. The first exemplary consideration is the following: “an additional element reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field.”

    If the improvement of functionality of computer is a practical application, why is not the improvement of the operation of the computer?
    If that argument was persuasive, EVERY software invention is patentable. Unless one hasn’t been paying attention (which in your case is quite possible) most software inventions have been deemed patent ineligible at the Supreme Court or the Federal Circuit.

    Everyone tells me both are the same in fact.
    Everyone isn’t the Federal Circuit.

    Nobody tracks the parent of an adult in my field or any other field. That is what the evidence proved. The parents’ data is not even collected.
    You’ve just describe the abstract idea (see laml’s comment) – basically data collection, which can be done mentally. Nothing inherently about those operations require a computer. Any competent patent attorney could tell you how that is being interpreted by the USPTO/CAFC.

    Curious insults my attorneys and me, I just keep revealing what the MPEP states.
    I have read those sections of the MPEP dozens of times before. Unlike you, I know how the case law mentioned in the MPEP is interpreted and why there was a 99.999% chance that your claims would fail at both the PTAB and CAFC.

    The CAFC Panel did a b.s. move of merely announcing all the other limitations “abstract” w/o evidence.
    Evidence isn’t used to declare limitations abstract or not. Neither the Supreme Court nor the CAFC have ever required evidence to declare limitations to be abstract.

    then the CAFC Panel tried to pretend they addressed the substantial evidence requirement by addressing the one limitation that was expressly admitted as not making a difference
    See above. Evidence is not required to declare limitations to be abstract. Berkheimer involves a different part of the Alice/Mayo test.

    Seriously, stop criticizing about stuff of which you’re clueless about.
    Considering I have had more success at the Federal Circuit than you, I don’t think I’m “clueless.”

    SmithKline was all about FRAP 28(a)(6)
    No. Following the FRAP has nothing to do with developing an argument. I suggest you read the parentheticals found in SmithKline as to this issue.

    And the CAFC did just that: Ignored all his SCOTUS case law quotes.
    Attorneys have been addressing Alice before the CAFC over the past 8 years – many with far, far more appellate experience than B. I have little doubt that any “SCOTUS case law quotes” of value have already been cited.

    BTW, you and B are welcome to post your opening and reply brief online, and we can all view what he actually argued.

    These attacks on B are ridiculous.
    Why are they ridiculous? As ACCURATELY stated by Chen, “[w]hile there are close cases under the Alice/Mayo standard, the ’042 application does not present such a close case.” One could have spent $2M and hire the 10 best patent appellate attorneys in the country on this appeal, and they still would have lost spectacularly.

  • [Avatar for B]
    B
    August 28, 2022 05:29 pm

    @ Night Writer “ These attacks on B are ridiculous.”

    Your support is appreciated

    “The lines for all of these issues are decided by the CAFC and fluctuate wildly.”

    The fluctuate wildly one case to the very next even when written by the same judge.

    Hey, can anyone resolve Berkheimer and Investpic? Curious? Primary examiner? Iaml? Those opinions were published weeks apart and Taranto was on both panels

  • [Avatar for B]
    B
    August 28, 2022 05:22 pm

    @ Primary examiner “ Concerned – as Curious mentioned, ssdi benefits isn’t a technology.”

    So why does Technology Center 3600 examine the application?

    “I will not understand why you are wasting your time and money on arguing futile arguments”

    Please tell me what the good arguments are? The CAFC has affirmed 100% of Alice-Mayo rejections.

  • [Avatar for concerned]
    concerned
    August 28, 2022 04:27 pm

    Night Writer:

    I agree and thank you. B’s briefs quote SCOTUS case law throughout and stated the CAFC has no authority to ignore the same.

    And the CAFC did just that: Ignored all his SCOTUS case law quotes.

    Same thing happened with my first attorney.

  • [Avatar for Night Writer]
    Night Writer
    August 28, 2022 03:46 pm

    These attacks on B are ridiculous. The lines for all of these issues are decided by the CAFC and fluctuate wildly.

  • [Avatar for B]
    B
    August 28, 2022 02:20 pm

    @ Primary Examiner “Concerned- at this point, I believe your attorneys are either incompetent, or do not have your best interest in mind.”

    P.E., your insult is based on a dishonest opinion issued from a Court that regularly issues dishonest opinions.

    Ask me questions, make criticisms, whatever, and I’ll provide whatever briefing you’d like to demonstrate just how dishonest Chen’s opinion is

  • [Avatar for B]
    B
    August 28, 2022 02:15 pm

    @ Curious “There’s no portion of the FRAP I didn’t comply with.
    I never said you didn’t.”

    Well then, it’s settled. SmithKline was all about FRAP 28(a)(6)

    Seriously, stop criticizing about stuff of which you’re clueless about. You may have written the brief differently, but your opinions on this matter aren’t the FRAP. The FRAP was followed to the letter, and Judge Chen’s evocation of SmithKline is effort to DISHONESTLY avoid the evidence issue.

  • [Avatar for B]
    B
    August 28, 2022 02:09 pm

    @ laml “Your attorneys aren’t doing a good job explaining things to you”

    My friend, it was NEVER argued that a computer was anything but trivial, and Killian’s opening brief repeatedly states that the existence of a computer “doesn’t change the analysis.”

    The CAFC Panel did a b.s. move of merely announcing all the other limitations “abstract” w/o evidence, then the CAFC Panel tried to pretend they addressed the substantial evidence requirement by addressing the one limitation that was expressly admitted as not making a difference

    Judge Chen is a master prevaricator

  • [Avatar for Primary examiner]
    Primary examiner
    August 28, 2022 02:03 pm

    Concerned- at this point, I believe your attorneys are either incompetent, or do not have your best interest in mind.

  • [Avatar for IamI]
    IamI
    August 28, 2022 01:59 pm

    Your attorneys aren’t doing a good job explaining things to you.

    Tracking the parent is part of the *abstract idea*. 2106.05(d) is drawn to elements that *do not* make up the abstract idea. Which, in your case, is just a computer. A generically claimed computer, which yours is regardless of what you bleat over and over, is never enough to be significantly more than the abstract idea.

  • [Avatar for concerned]
    concerned
    August 28, 2022 01:17 pm

    2106.05(d) Well-Understood, Routine, Conventional Activity [R-10.2019]
    Another consideration when determining whether a claim recites significantly more than a judicial exception is whether the additional element(s) are well-understood, routine, conventional activities previously known to the industry. This consideration is only evaluated in Step 2B of the eligibility analysis.

    If the additional element (or combination of elements) is a specific limitation other than what is well-understood, routine and conventional in the field, for instance because it is an unconventional step that confines the claim to a particular useful application of the judicial exception, then this consideration favors eligibility

    Nobody tracks the parent of an adult in my field or any other field. That is what the evidence proved. The parents’ data is not even collected.

    Curious insults my attorneys and me, I just keep revealing what the MPEP states.

    Curious: Favors eligibility is what the above says.

  • [Avatar for concerned]
    concerned
    August 28, 2022 01:01 pm

    In the context of the flowchart in MPEP § 2106, subsection III, Step 2A Prong Two determines whether:

    • The claim as a whole integrates the judicial exception into a practical application, in which case the claim is not directed to a judicial exception (Step 2A: NO) and is eligible at Pathway B. This concludes the eligibility analysis.

    The claim is the stated word in this MPEP section. Technology is not mentioned as a condition.

    If the improvement of functionality of computer is a practical application, why is not the improvement of the operation of the computer?

    Everyone tells me both are the same in fact.

    It is a fair question.

  • [Avatar for concerned]
    concerned
    August 28, 2022 12:35 pm

    Curious:

    Both my attorneys made the same arguments.

  • [Avatar for Primary examiner]
    Primary examiner
    August 28, 2022 10:56 am

    Concerned – as Curious mentioned, ssdi benefits isn’t a technology. I will not understand why you are wasting your time and money on arguing futile arguments.

  • [Avatar for Curious]
    Curious
    August 28, 2022 10:23 am

    There’s no portion of the FRAP I didn’t comply with.
    I never said you didn’t. However, a good brief focuses on the best arguments and doesn’t throw everything in the brief but the kitchen sink because you are limited by the number of words. Also, mentioning an argument is not the same as developing an argument. Regardless, it was a dead argument for reasons I discussed below. The evidence goes to the prior art – not your invention. It doesn’t address whether there is an “inventive concept” contained within the “additional elements” of your claims. Spending any words arguing this point is a waste of time and space. It was ENTIRELY EXPECTED that the CAFC would ignore those arguments.

    My process improves SSDI benefits.
    SSDI benefits are not technology – even using the colloquial meaning of “technology” which has a broader meaning than how the CAFC uses the term “technology.” Any patent attorney who has practiced in Tech Center 3600 could tell you that.

    I see no reason why your Commissioner could not recall my appeal, claim functionality and operational are in fact the same, and play both ends against the middle.
    Because you are ignorant and delusional and know little about the law. I have NO DOUBT that I could explain the issue to a 5th grader and they would have a better understanding than you after a 5 minute explanation. Let me repeat that – NO DOUBT. I’m searching for a stronger word than “delusional” in order to best describe your comments, but I’m just going to stick with that for now.

    Considering SCOTUS said new and useful process in Alice
    You have no idea what SCOTUS said.

    Commissioner Vidal wants to be a leader. Here is the chance.
    Did you fail 5th grade social studies?

    Normally, I’m not this insulting, as I try to keep this blog a healthy ecosystem for debate. However, you showing up here is akin to a raging drunk walking into oral arguments at the Supreme Court explaining why they are all wrong. My patience with you has long worn thin. I have tried, ever so patiently over many years, to nicely explain to why you are so misinformed. I’m done being nice.

  • [Avatar for Anon]
    Anon
    August 28, 2022 09:33 am

    I find it ‘curious’ how furious Curious is in NOT correcting the very plainly on face issues as exemplified in this case.

  • [Avatar for concerned]
    concerned
    August 28, 2022 06:19 am

    Primary Examiner:

    One person can make a difference. Do you think deep down that functionality and operational improvements the same? If so, pass the thought upward in your organization.

    Commissioner Vidal wants to be a leader. Here is the chance. And the patent community would be very grateful of the correction toward the truth. Problem solving is patentable.

    Congress us not going to lead. SCOTUS is not going to correct CAFC.

    We can lead via the truth.

  • [Avatar for concerned]
    concerned
    August 28, 2022 05:59 am

    Primary Examiner:

    Diehl took 100% not cured rubber and cured it better. That was the only technology improved (rubber). Patent receive after SCOTUS case.

    My process improves SSDI benefits. Before my process, people are overlooked. After my process, people are not overlooked. You could say we “cured” the SSDI benefit.

    Both processes are improvements and transformative. I really do not see a difference. We argued the same throughout to no avail. Certainly the broadest interpretation of the claims can see that point.

    We meet Alice (new and useful purpose). However, CAFC expanded case law to way beyond Alice of must improve the computer itself or improve more than one technology. Where is that the intent of patent law?

    A lot focus of my claims has been on the “how” not the new and improved result. I see no support in s101 for the “how.” The “how” is in s102, 103 and 112. We do not have those rejections.

    I see no reason why your Commissioner could not recall my appeal, claim functionality and operational are in fact the same, and play both ends against the middle. I am told the CAFC blew this functionality vs. operational matter over technical ignorance.

    Considering SCOTUS said new and useful process in Alice, force the CAFC to clean it up. By going along with this fiction of functionality is different than operational, the USPTO is part of the problem of not taking a stand on the truth.

    Or have your Commissioner meet behind the scenes with the CAFC chief justice, confront her on the operational vs. functionality issue. Are both really the same per the computer geeks? If so, en banc my appeal and straighten the matter out.

    End result: Abstract processes that do not improve anything, no patent. Abstract ideas that make life better and/or solve problems are patentable. This suggestion is the exact point Mr. Quinn made in comment on my first IPWatchdog article.

    As Night Writer says, a couple of tweats could solve a lot of 101 issues. I agree.

  • [Avatar for B]
    B
    August 28, 2022 02:35 am

    @ Curious “BTW – what I wrote above is 471 words (about 50% more than what you wrote).”

    FRAP 28(a)(6) requires a “concise” statement of the facts – and it’s counterproductive to use 471 words when 300 will do. I was already struggling with the FRAPPING page limit.

    Plus, I provided all the necessary case law in the Standard of Review Section so fully complying with FRAP 28(a)(8).

    There’s no portion of the FRAP I didn’t comply with.

  • [Avatar for primary examiner]
    primary examiner
    August 27, 2022 03:32 pm

    You can prove your invention has a practical application if you either improve the functioning of the computer itself, or provide an improvement to another technology or technical field (outside of the abstract idea that is recited by your claims). I have not read your Spec., but based on yours posts I am inclined to believe you have no support for either of those.

  • [Avatar for concerned]
    concerned
    August 27, 2022 03:10 pm

    We did have a conversation with the apparent junior examiner and he said my process had patentability, the higher ups were blocking it. Then the primary examiner stepped in and took over.

    Thinking we had patentability from what the junior examiner said, we never asked for guidance and it was never offered from the primary examiner. That and saying my process was routine, well understood and conventional made us believe something else was up, since the process was novel and non obvious. Then the Board switched rejection reason and that fueled bad thoughts.

    It also does not help that inventive concept is never defined, even though asked.

    The MPEP says improved functionality is patentable as a practical application, my process improves the operation of a network. Everyone on this forum says functionality and operational is the exact same thing in fact. So an automobile is patentable, but not a car?

    The MPEP list of practical applications is not all inclusive aside points out and also claims should get broadest interpretation. If functionality is a practical application, expand the list to operational, which is factually the same thing as everyone tells me.

    Alice said new and useful. New and useful functionality, new and useful operational. What is the difference?

  • [Avatar for Curious]
    Curious
    August 27, 2022 12:04 pm

    I spent 300 words in the opening brief spanning three pages occasionally using bolded and italicized sentences while addressing the issue making four separate points concluding “Why exactly is the PTAB allowed to ignore fifty-five separate documents that favor Appellant Killian in favor of a completely bald assertion supported by ZERO substantial evidence in the record?
    Let’s get a couple things clear here. As I already noted below, the evidence was merely “the Medicaid applications from all 50 states, the Social Security benefit application, the Social Security benefit handbook and the two university studies.” As argued in the Appeal Brief before the Board, “the facts show that the Appellant’s claimed process has never been used independently or in combination, the process is not conventional, not routine and not well understood.” That was the evidence that was presented. Notably, this “evidence” didn’t address your invention. It was evidence about what was done in the past.

    Regardless, let’s assume, for sake of argument, that the evidence is all true: Concerned’s process, as a whole, is novel and nonobvious. What the USPTO did was introduce a new grounds of rejection. Using the 2019 Patent Eligibility Guidance, they asserted the claims recited a mental process with the exception of certain computer components. Under Step 2B, the USPTO/Court looks at ONLY the additional elements (i.e., after stripping out the abstract idea) and determines whether those additional elements, either alone or in combination, are routine and well-understood (see page 14 of the original Decision on Appeal). Importantly, when they stripped out the alleged out the abstract idea, they stripped out all of the novel/nonobvious things. The reason why the USPTO ignored your evidence because went to the novelty/nonobviousness of the abstract idea. Evidence that the abstract idea is novel/nonobvious has NO VALUE under Federal Circuit 101 jurisprudence. The average examiner knows this. A good attorney should know there. That you keep arguing it means you either don’t understand the law as it is being applied or you just enjoy tilting at windmills. Which one is it? Regardless of the answer, you are doing your client no favors pursuing this futile line of arguments.

    Comparable futile lines of arguments would be to argue to a judge (in a 103 context), that: (i) the references are too old, (ii) there are too many references, (iii) the references are in a different language, (iv) it would have been too difficult for an inventor in the field to find the references. These are all long-dead lines of arguments that a judge would easily dismiss in a 103 context and no good attorney would make them (as it would distract from better arguments). However, by arguing that the USPTO/Court improperly ignored the “evidence”, you are making the same kind of futile argument – an argument that the USPTO/Court can and will immediately dismiss.

    BTW – what I wrote above is 471 words (about 50% more than what you wrote). That’s not a lot to fully develop an argument about evidence that you didn’t even bother putting in the appendix.

  • [Avatar for Curious]
    Curious
    August 27, 2022 11:41 am

    There is no distinction in fact. The only distinction here is that the courts can claim there is a distinction. So, I agree with you when writing applications that it is good to try and come up with a little magic for the courts to refer to but, in reality, there is not a distinction. This is just another test where a judge can do whatever they please.
    The time for arguing about what is “reality” has long past. The courts have rejected reality a long time ago. As attorneys, we are tasked to act in the best interests of our clients. To do regarding this issue requires an understanding of the distinctions that the courts have made and to craft applications/arguments that take advantage of the court’s distinctions.

    As attorneys, we do no favors to clients like Concerned by telling them things like “there is not a distinction.” There are possible paths to patentability (at the USPTO). However, to find that path requires an understanding of what the law is and how it is being applied. This is what I have tried to convey.

    The first step to solving any problem is to recognize that there is a problem. In this instance, that requires Concerned to recognize that his claims do not meet the law as it is currently being applied. Only after that recognition is made can Concerned, with the help of his attorney, come up with a plan that leads him down the right path. What annoys me is that the likes of B and Anon who are telling Concerned that you don’t have a problem, the Courts have a problem – you don’t need to change, the Courts need to change. This type of advice isn’t going to help Concerned. It is going to be far easier for Concerned to fix his application that it will be for Concerned to convince the Courts that they are wrong.

    Not for examiners in TC3600 I assure you
    I have been a huge critic of TC3600 for many, many years on this blog. That being said, I’ve gotten patents issued out of TC3600 in the past. I had a conversation with an examiner from TC3600 last week and as I always do when I speak to a TC3600 examiner, I asked for guidance on how to get past 101. All of them, including this one examiner, have provided guidance, which I have used where appropriate.

  • [Avatar for concerned]
    concerned
    August 26, 2022 05:09 pm

    My spec uses the word routine “zero” times, conventional “zero” times and the word well “two” times and the word understood “two” times, but not together as well understood.

    Nor did my first attorney imply the process or computer was routine, conventional or well understood.

    Judge Chen offered no location of my spec where his statement originated.

  • [Avatar for B]
    B
    August 26, 2022 04:17 pm

    Update : “Also, I’m still trying to find where I insisted non-agency patent cases should be handled by the APA”

    After a FOURTH Review, there’s not a single instance where I even remotely suggest, directly or via some twisted logic, that non-agency patent cases be handled by the APA

  • [Avatar for B]
    B
    August 26, 2022 04:02 pm

    BTW, for those who care to listen. Judge Chen applied SmithKline stating I put in some skeletal argument yadda, yadda, yadda

    SmithKline addressed a situation where the opening brief addressed an issue in a dozen words in a footnote.

    I spent 300 words in the opening brief spanning three pages occasionally using bolded and italicized sentences while addressing the issue making four separate points concluding “Why exactly is the PTAB allowed to ignore fifty-five separate documents that favor Appellant Killian in favor of a completely bald assertion supported by ZERO substantial evidence in the record?”

    Also, I’m still trying to find where I insisted non-agency patent cases should be handled by the APA, and no patent attorney is stupid enough to admit that something is “well-known, routine, and conventional” in a patent spec

  • [Avatar for concerned]
    concerned
    August 26, 2022 03:58 pm

    What would keep the Patent Commissioner and Chief Justice, CAFC meeting behind closed doors and reach agreement on:

    Improving and functionality are the same, will be treated the same.

    Something cannot be routine, well understood and conventional if not obvious and novel.

    That would be leadership based on truth. And the CAFC has the right to challenge stare decisis if the circumstances are right per Assoc. Judge Barrett. Truth should always win.

  • [Avatar for B]
    B
    August 26, 2022 03:55 pm

    @ primary examiner “I assure you that this distinction matters, at least on the examining side.”

    Not for examiners in TC3600 I assure you

  • [Avatar for B]
    B
    August 26, 2022 03:53 pm

    @ Night Writer “There is no distinction in fact. The only distinction here is that the courts can claim there is a distinction.”

    100,000,000,000% correct, but tell that to the Judge with a poly-sci degree who knows more about technology that the design engineers.

  • [Avatar for concerned]
    concerned
    August 26, 2022 03:05 pm

    There we go. Truth and fact does not matter. Functionality and improving are the same thing in fact, but not really in patent world.

    And evidence to determine truth and fact, forget it. The King spoke.

    Conversed with an attorney yesterday. He has a client similar to me. Nobody has ever done the process, not in dispute, yet it is routine, well understood and conventional.

    We need more people like B to stand up to this nonsense and stand up for truth and what it right.

    Really, who gave a bunch of rag taggers a shot back in 1776? I sure some people called them fools also.

    Curious: I got no answer, not the right answer.

  • [Avatar for primary examiner]
    primary examiner
    August 26, 2022 02:33 pm

    “So, I agree with you when writing applications that it is good to try and come up with a little magic for the courts to refer to but, in reality, there is not a distinction. This is just another test where a judge can do whatever they please.”
    I an assure you that this distinction matters, at least on the examining side.

  • [Avatar for Night Writer]
    Night Writer
    August 26, 2022 02:14 pm

    Curious >>Every piece of software ever written, with the Exception of Windows 8, improves the functionality of a computer.
    We all know that. A computer without software is nothing more than an expensive paperweight. However, the distinction being made by the courts is between increasing the functionality of a computer versus improving how the computer operates.

    There is no distinction in fact. The only distinction here is that the courts can claim there is a distinction. So, I agree with you when writing applications that it is good to try and come up with a little magic for the courts to refer to but, in reality, there is not a distinction. This is just another test where a judge can do whatever they please.

  • [Avatar for Curious]
    Curious
    August 26, 2022 01:00 pm

    Every piece of software ever written, with the Exception of Windows 8, improves the functionality of a computer.
    We all know that. A computer without software is nothing more than an expensive paperweight. However, the distinction being made by the courts is between increasing the functionality of a computer versus improving how the computer operates.

    As an attorney, you can either improve your clients chances of getting a patent by recognizing this difference and by crafting a specification/claims/arguments that highlight these differences … or … you can stick your head in the sand and believe that what was patentable in 2005 is what is patentable today. Doing so, however, doesn’t do your client any favors.

    One question: Why did you not come up with this simple SSDI solution in 2001, for example, prosecute your own application with the USPTO, and make a fortune greater than what you earn as a patent attorney based on the salary range you mention previously?
    Opportunity? It was not a problem that was presented to me at the time. Seriously, your 14 steps are mostly simple data collection and data storage.

    Would you stand up in front of all your neighbors and really say my process has no practical application when we find application errors and just get a person with disabilities their rightful SSDI benefits?
    When you ask the wrong questions, you’ll continually get the wrong answers.

  • [Avatar for concerned]
    concerned
    August 26, 2022 11:36 am

    Primary Examiner:

    Dodging my request for the specific MPEP section will be accepted as your opinion. If there is a section, it would have been revealed by you.

    May I point out another section?

    Section 2016: II. ESTABLISH BROADEST REASONABLE INTERPRETATION OF CLAIM AS A WHOLE

    Hardly the broadest reasonable interpretation when I show you a MPEP section and you cannot counter with another section. Software that improves an aggregate of computers in a network should certainly be a stronger “functionality” argument than the improvement of a single computer. Of course, I am using the broadest reasonable interpretation, not a restricted version to reject at all cost.

  • [Avatar for B]
    B
    August 26, 2022 10:50 am

    @ Primary Examiner “The functioning of the computer is not improved. That’s a fact, not an opinion.”

    Every piece of software ever written, with the Exception of Windows 8, improves the functionality of a computer.

    Also, no piece of software ever written improves the functionality of a computer. The computer doesn’t run faster or more efficiently.

    That’s a fact, not an opinion

    Most respectfully, the idea of software improving a computer is idiotic. Note that I’ve written nearly a half million lines of code in my day

  • [Avatar for primary examiner]
    primary examiner
    August 26, 2022 10:44 am

    I have an IT Partner, with 30 years of experience, owns his IT business and in 10 states who says it does.

    “Delusional clients cannot be reasoned with. For that reason, I mostly avoid small clients. My large clients don’t go through the histrionics that Concerned has engaged in — despite them getting EXACTLY the same treatment by the USPTO/PTAB. In fact, my clients have had MUCH BETTER claims be given the same treatment. Since they understand the law, we work to find ways to get patents issued despite getting shafted by the PTAB. Doing so, important, requires an understanding of the law as it is currently being applied. Herein lies Concerned’s problem. He wantonly doesn’t want to understand how the law is currently being applied so he cannot make wise decisions as to obtain a patent.
    He thinks he is being a martyr when in actuality he is actively working to sabotage his own patent application. It is a sorry sight.”

  • [Avatar for concerned]
    concerned
    August 26, 2022 10:39 am

    May I have that Section of your MPEP that backs up your statement please?

    I have an IT Partner, with 30 years of experience, owns his IT business and in 10 states who says it does.

    MPEP section please otherwise it appears to be an unfounded opinion.

  • [Avatar for Primary examiner]
    Primary examiner
    August 26, 2022 10:22 am

    The functioning of the computer is not improved. That’s a fact, not an opinion.

  • [Avatar for concerned]
    concerned
    August 26, 2022 10:18 am

    May I have that precise Section of the MPEP please?

  • [Avatar for IamI]
    IamI
    August 26, 2022 10:15 am

    That’s not an improvement of the functioning of a computer to meet that practical application standard.

  • [Avatar for concerned]
    concerned
    August 26, 2022 10:11 am

    Primary Examiner:

    2106.04 d I: ELEVANT CONSIDERATIONS FOR EVALUATING WHETHER ADDITIONAL ELEMENTS INTEGRATE A JUDICIAL EXCEPTION INTO A PRACTICAL APPLICATION:

    “An improvement in the functioning of a computer”

    It has been clear that my process improves the Social Security network function by identifying errors and missions that the Social Security Administration network and their staff could not identify.

    The court said it was insignificant post solution activity (no explanation) but certainly insulting to human decency. A person who is not getting his SSDI, now gets the benefit and Medicare because an error was correct, and it is insignificant? Sounds pretty arrogant and mean spirited. Let’s take a judge’s paycheck away for months or years due to a third party error and see if that judge thinks it is insignificant?

    The Board said I met the everyday definition of practical application, but not the their legal definition (no explanation).

    It appears I met the USPTO MPEP legal definition as shown above.

    Whether it is mental steps, other judicial exception, generic computer, etc.; Alice Corp and you own MPEP say I should get the patent.

  • [Avatar for Primary examiner]
    Primary examiner
    August 26, 2022 09:04 am

    Dude,you applied for a patent. The mpep is your friend. Use it.

  • [Avatar for concerned]
    concerned
    August 26, 2022 08:16 am

    Primary Examiner:

    No, because they really are decent people.

    Anon reminds people of the oath attorneys take and places a high value on being ethical and the constitution.

    B is representing people with disabilities and me at no charge with no expectation of any financial return. B came to me and I am honored to have him, win or lose.

    I asked you numerous times to answer a simple question “Yes or No” regarding the MPEP you work with daily. You repeatedly dodged the question. Specifically, the question would be how you answer that “Practical Application” question in front of 100 strangers and in front of your neighbors.

    Would you stand up in front of all your neighbors and really say my process has no practical application when we find application errors and just get a person with disabilities their rightful SSDI benefits? Just an application error otherwise the SSDI benefit would have been paid months ago or years ago.

    Do it today. Gather some of your neighbors and tell them how you feel about my application. That you may think it has no practical application to society or people with diminished capacity. Just do it if you really believe in what you stand for and believe in.

    Curious: Yes, I already know the answer the Board gave me. This question is about integrity, something only a person can give away, nobody can take it from you..

  • [Avatar for primary examiner]
    primary examiner
    August 26, 2022 07:36 am

    “Placing me in with those two people is great with me, they are decent human beings”

    because they tell you what you want to hear….

  • [Avatar for concerned]
    concerned
    August 26, 2022 03:27 am

    Curious:

    Poor argument regarding me not knowing the law.

    The Patent Commissioner states no Federal judge fully understands the law.

    The USPTO examiners said routine, well understood and conventional. The Board said mental steps. Apparently, somebody in that group does not know the law.

    You say B and Anon do not understand the law also. Placing me in with those two people is great with me, they are decent human beings.

    You also said you are smarter than anyone in my field and ridicule us for not coming up with a solution until 2014, 58 years after the inception of the SSDI program. And you indicated the solution is simple.

    One question: Why did you not come up with this simple SSDI solution in 2001, for example, prosecute your own application with the USPTO, and make a fortune greater than what you earn as a patent attorney based on the salary range you mention previously?

  • [Avatar for Anon]
    Anon
    August 25, 2022 11:00 pm

    Curious,

    Your choice is a tell / and it looks even worse for you in making that choice.

  • [Avatar for Curious]
    Curious
    August 25, 2022 04:22 pm

    Answer the direct question please (and note that further prevarication from you IS an answer to that direct question).
    I choose not to. Do you know why? Because you are being an a$$ and you already know the answer.

    Noone is out to get you, as Curious mentioned earlier. You have a very hard time accepting the current facts.
    I see you’ve taken up pro bono work as well. Although you’ll probably never go into private practice (although you could become a patent agent), here is a little piece of advice. While I have advocated for small entities for a long time on this blog, many small entities make terrible clients. Concerned provides an excellent example of this. You can explain to the law to them 10 times yet they still don’t get it. They don’t understand that legal “words” oftentimes have different meanings than that found in a dictionary. They cannot wrap their head around the nuance frequently found in the law. And a client that doesn’t understand the law oftentimes make bad business decisions because of this lack of understanding. Frankly, it also doesn’t help when attorneys such as B and Anon feed into Concerned’s misunderstanding of the law. Whereas I give him the answer he needs to hear, they give him the answer he wants to hear so he believes them instead of me.

    Delusional clients cannot be reasoned with. For that reason, I mostly avoid small clients. My large clients don’t go through the histrionics that Concerned has engaged in — despite them getting EXACTLY the same treatment by the USPTO/PTAB. In fact, my clients have had MUCH BETTER claims be given the same treatment. Since they understand the law, we work to find ways to get patents issued despite getting shafted by the PTAB. Doing so, important, requires an understanding of the law as it is currently being applied. Herein lies Concerned’s problem. He wantonly doesn’t want to understand how the law is currently being applied so he cannot make wise decisions as to obtain a patent.

    He thinks he is being a martyr when in actuality he is actively working to sabotage his own patent application. It is a sorry sight.

  • [Avatar for concerned]
    concerned
    August 25, 2022 04:00 pm

    That and people telling me my computer specs start and stop at fig2.

    There is fig1 showing interface with government agencies and page 10 of the provisional application (incorporated) showing security issues that our computer will need to comply. And no such design and development until our computer satisfies those requirements from every agency. From one generic document I see about 7 hoop jumping requirements that will include all kinds of modifications.

    Unless someone has a crystal ball, the fig2 was a starting point until we were told of the modifications.

    Most liberal interpretation of the specs per MPEP from people saying fig2 only? Sorry, no buying it.

  • [Avatar for B]
    B
    August 25, 2022 03:37 pm

    Every time I re-read Chen’s nonsense, I find another falsehood. The vast number of Chen’s misrepresentations is truly astonishing

    For instance, on page 16 of the Panel’s Decision in Killian, the Panel falsely states that “[t]The Supreme Court did not hold in Diehr, Bilski, or any other case that ‘steps performed in a computer are not ‘mental steps’ even if the steps performed in the computer are identical to steps that could theoretically be performed by a human mind,’ as Mr. Killian contends”

    However, the entire quote by Killian is the exact opposite of what he is accused of saying. In fact, the sentence in its full context during a discussion of the Diehr holding is as follows:

    “That is, despite Justice Steven’s vigorous descent in Diehr, the Supreme Court majority rejected the “mental steps” doctrine. Thus, it is settled law from the top court in the nation that steps performed in a computer are not “mental steps” even if the steps performed in the computer are identical to steps that could theoretically be performed by a human mind.”

    This is a shameless decision based on lies, and one wonders why does the Federal Circuit feel compelled to lie

  • [Avatar for concerned]
    concerned
    August 25, 2022 03:02 pm

    Are you speaking on behalf of the state and federal government? If so, please state your authority so I can forward to my IT partner.

    The specs say the design and development will be after those agreements.

  • [Avatar for IamI]
    IamI
    August 25, 2022 02:40 pm

    He can make that statement because that’s all the claims require, and that’s what the specification requires. The “evidence” is irrelevant.

  • [Avatar for concerned]
    concerned
    August 25, 2022 01:52 pm

    You cannot make that statement about our computer unless you know what the state and federal government will require.

    Our computer was not a subject of the prosecution, the underlying business method and mental steps were the issues.

    Judge Chen made his statement about the computer to avoid applying evidence per Berkheimer. We are going to challenge his statement and request the right to submit evidence on that newly brought up issue, if needed.

    We should have no trouble getting evidence that state and federal agreements (preserved in the specs) will require more than a generic computer. It was just a starting point for patent purposes. Please understand, just a starting point which explains the other specs that would be redundant otherwise.

    The specs have stated that the claimed method is not the only possibility. The state and federal governments may modify their hardware and software to accommodate our process, which has been discussed among the partners. Of course, that would mean we improved their technology to create a very new outcome.

    Evidence matters.

  • [Avatar for primary examiner]
    primary examiner
    August 25, 2022 12:43 pm

    Your computer is a generic one. You do not have support for a practical application, as it is described in the mpep. Anyone that tells you otherwise wants to be your friend, and is not telling you the truth.

  • [Avatar for concerned]
    concerned
    August 25, 2022 11:35 am

    Part of my post got cut off. But you get the point. There are requirements to interface. No generic computer plug in.

    And nobody can say ahead of time in a patent application what the State and Federal hoop jumping will be, it can change in time. But it is in our specs whether you like it or not.

    We shall confirm to hardware and software requirements.

  • [Avatar for concerned]
    concerned
    August 25, 2022 11:31 am

    I guess you will not answer a simple question, yes or no, regarding a MPEP you work with daily. Very telling.

    We said no design or development BEFORE agreements in the specs. Our computer will need to jump all these Federal hoops/plus State hoops before interface. Nobody will just plug in a generic computer. And nobody can state in the specs what those hoops will be ahead of time. But the hoop jumping is in the specs. Ignorance does not make my process a generic computer regardless what a judge says. It does not make an incorrect statement true.

    https://www.upguard.com/blog/fisma#:~:text=FISMA%20is%20one%20of%20the%20most%20important%20regulations,and%20Budget%20%28OMB%29%20to%20strengthen%20information%20security%20systems.

  • [Avatar for Primary examiner]
    Primary examiner
    August 25, 2022 10:34 am

    Ok,now you’re bouncing to the practical application argument. Read the mpep, it covers that. If you still don’t get it, you may want to work on reading comprehension .

  • [Avatar for IamI]
    IamI
    August 25, 2022 10:30 am

    A “liberal” reading of “providing a computer processor and computer readable media” is just providing a computer and CRM. There is nothing special about that.

    And nothing in paragraph 0119 or page 10 of the provisional application or what the SSA might allow plugged into their computer network would change that. Paragraph 0119 doesn’t even mention a computer. But, other paragraphs of your spec just say it’s a personal computer (like paragraph 0034)! Come on now.

  • [Avatar for Annoyed and exhausted]
    Annoyed and exhausted
    August 25, 2022 10:15 am

    Curious: if you invented a new computer, or some new algorithm that improves a computer’s performance, why don’t you file a continuation before the mandate issues and seek those claims?

    Otherwise, maybe you should give up on trying to exclude patients entitled to SSDI benefits from seeking them with a computer. That’s not a patentable invention, nor should our system exclude others from such activities for your own financial gain.

  • [Avatar for concerned]
    concerned
    August 25, 2022 10:14 am

    There may be hardware requirements from the agreements to ensure security and other aspects.

    We speak to conformity of the agreements, it would be impossible to address beforehand. But it is there in the specs. We started with the basics awaiting direction.

    Can you speak with authority what the hardware requirements will be?

    One thing for sure: SSA will not allow a generic computer to just be slapped on and that is that.

    Still have not address my simple question on Practical Application that renders this moot.

  • [Avatar for primary examiner]
    primary examiner
    August 25, 2022 09:56 am

    “The computer and software will be designed and developed per the requirements of said agreements, which would vary from state to state.”
    You have no support in the Spec. for designing and developing a non-generic computer (in terms of hardware). A generic computer that runs designed and developed software is still a generic computer. Any agreements that need to be conducted and signed before running the process on your computer are methods of organizing human activity; they don’t turn your computer into a non-generic computer. Noone is out to get you, as Curious mentioned earlier. You have a very hard time accepting the current facts.

  • [Avatar for concerned]
    concerned
    August 25, 2022 09:49 am

    IamI:

    Any “suitable” computer consistent with the specs. The entre specs count. And we are SUPPOSED to get a liberal reading of the claims, not a pick and choose version.

    Please see spec [0119], spec [032] and page 10 of the provisional application which was incorporated into the non-provisional application.

    The computer and software will be designed and developed per the requirements of said agreements, which would vary from state to state.

    You personally cannot determine, with authority, what those requirements will be. However, I can state, with authority of my background, that the computer will be altered from its natural state and the software developed to comply with many aspects.

    Any the Social Security Administration network will be altered by our process to effect the claimed process, which their current version cannot accomplish.

  • [Avatar for Anon]
    Anon
    August 25, 2022 09:49 am

    Curious,

    My memory has nothing to do with anything.

    Why do you choose to deflect?

    Answer the direct question please (and note that further prevarication from you IS an answer to that direct question).

  • [Avatar for IamI]
    IamI
    August 25, 2022 09:34 am

    Your claim literally says “providing a computer and a computer readable media”. There’s nothing at all special about that limitation that overcomes either part of the Step 2 analysis. Especially when paragraph 0042 of the spec says “any suitable computer system” and then just states it’s a CPU with a processor/microprocessor and other well known computer elements.

  • [Avatar for concerned]
    concerned
    August 25, 2022 09:01 am

    For those not familiar with SSDI benefits:

    The preceding post is important since we are asking Social Security Administration for authority to track the parent, without consent by that party, to find overlooked SSDI on their child. This process has never been done before, the perquisite data is not even collected. As far as we know, it has never been done anywhere in commerce. Sorry Curious, tracking a person is not the same as tracking the parent, that did not solve the problem after 66 years for reasons explained in the Official Record.

    The evidence and explanation in the Official Record fully explains the above intent of the process. Tracking the parent is in the Representative claim #1. Evidence matters.

    Also the process will bring compliance to law as some people are overpaid due to the oversight on the child, also explained. The Board said our process does not do the same. The Boards ignorance of SSDI does not make it true. Evidence matters.

  • [Avatar for concerned]
    concerned
    August 25, 2022 08:43 am

    Primary Examiner:

    Did not like what your MPEP says? And you still refused to answer a simple question: Practical Application?

    We did not like what Judge Chen wrote: “Because the ’042 application’s specification admits that the computer, which the Board correctly identified as the additional element of the claims, is well-understood, routine, and conventional, no further evidence is needed.”

    Well that statement is amazing. Spec [0119] states how consent is waived. Spec [032] fully incorporates the provisional application. Page 10 of the provisional application fully describes what agreements must be in place with the various agencies BEFORE any software design and development.

    Nobody is going to take some “off the shelf” generic computer and plug it into Social Security network. It SHALL meet all their specs and security measures, so will its software. Both the computer and software SHALL be modified to conform and deliver the claim process. Now that we ADMIT as evidenced by the REAL specs.

  • [Avatar for Model 101]
    Model 101
    August 25, 2022 08:09 am

    “bound by SCOTUS”

    More crook stuff.

    Chen..,.. abstract… crookedest.

    Everyone knows.

  • [Avatar for primary examiner]
    primary examiner
    August 25, 2022 07:34 am

    ” Put millions of your own possible profit in play, then talk to me.”
    Are you suggesting anyone that devotes time and money to apply for a patent should be granted a patent? While I certainly appreciate your efforts, you still do not seem to understand (or want to understand) why your application fails at the moment.

    “I quoted your own MPEP.”
    I did not write the MPEP, nor do I agree with every single line that’s in it.

    “Judicial exception, mental steps so what? If the process has a practical application with a judicial exception, your MPEP says pathway B= patentable.”
    You still do not understand (or want to understand) what a practical application means, as described in the MPEP.

    “Routine computer, generic computer, who cares.”
    You should care, because it is your application.

    I give up…Have a great day.

  • [Avatar for concerned]
    concerned
    August 24, 2022 07:22 pm

    And I agree with B, Night Writer, Anon, Mr. Quinn, etc that the current patent jurisprudence can get any answer the person wants. That is the carousel.

    CAFC decisions are all over the place. Many are begging SCOTUS for clarification and they pass.

    The problem was here before me, will be here after.

    Curious and you say I whine alot. Put millions of your own possible profit in play, then talk to me.

    We deserve better.

  • [Avatar for concerned]
    concerned
    August 24, 2022 07:01 pm

    Primary Examiner:

    Who cares if I jump around. I quoted your own MPEP.

    Judicial exception, mental steps so what? If the process has a practical application with a judicial exception, your MPEP says pathway B= patentable.

    Why did I even have to jump around through out my prosecution? This is your own MPEP. Routine computer, generic computer, who cares. Is there a practical application as Alice and your MPEP state. We argued the same in appeal.

    I asked you a question, please answer. Would you get in front of 100 random people and your neighbors and say practical application on my process?

  • [Avatar for primary examiner]
    primary examiner
    August 24, 2022 06:14 pm

    Concerned: If you review the relevant MPEP sections, they cover what the interpretation of a “practical application” is.
    I think all of your questions have been answered on this forum, but you do not like the answers or opinions that some of us have. When you don’t like an answer, you jump to another reasoning, and then it turns into a carousel. I agree with everything Curious has mentioned so far, regarding the 101 analysis and your application. Curious is a patent attorney, I am not; his opinion is of much more value than mine.

  • [Avatar for concerned]
    concerned
    August 24, 2022 05:54 pm

    Primary Examiner:

    Thank you for your opinion.

    MPEP 2106: However, the Court has also emphasized that an invention is not considered to be ineligible for patenting simply because it involves a judicial exception. Alice Corp., 573 U.S. at 217, 110 USPQ2d at 1980-81 (citing Diamond v. Diehr, 450 U.S. 175, 187, 209 USPQ 1, 8 (1981)).

    (“That a mathematical equation is required to complete the claimed method and system does not doom the claims to abstraction.”). Accordingly, the Court has said that integration of an abstract idea, law of nature or natural phenomenon into a practical application may be eligible for patent protection. See, e.g., Alice, 573 U.S. at 217, 110 USPQ2d at 1981.

    So I ask you. A person has been overlooked for a SSDI benefit and he would also would get Medicare. The only thing that prevented these benefits was an application error or omission. The Social Security Administration has no further active processing in regards to this person. The record is dormant. My process find the overlook person, perhaps years later, and now he gets the SSDI benefit and Medicare.

    Practical Application?

    MPEP 2106 II. ESTABLISH BROADEST REASONABLE INTERPRETATION OF CLAIM AS A WHOLE.

    Your answer should be one that you could gladly state in front of 100 random people and your neighbors.

  • [Avatar for primary examiner]
    primary examiner
    August 24, 2022 04:57 pm

    My opinion – that’s a generic computer. A computer that interfaces with other computer/systems and handles data (confidential or not) , at the time of your invention, is a generic computer.

    “And the calculations are hardly routine. The routine calculations had the person’s record as dormant for all new benefits.”
    Calculations are methods of organizing human activity. It does not matter if they are routine or not – see mpep 2106.04. You can argue that they are not routine, but again, that is not relevant, if we are referring to a judicial exception.

  • [Avatar for concerned]
    concerned
    August 24, 2022 04:47 pm

    “It should be understood that the calculations may be
    performed by any Suitable computer system, such as the one
    shown in FIG. 2.” is the statement found by Mr. Crouch.

    And we both agreed “suitable” is the key word, one that my spec “figures” show interfacing with governmental agencies and handling confidential data. That all security measures would need to be incorporated with this computer. It would not be an “off the shelf” routine computer that is just plugged in.

    Of course, the calculations in question are ones that take a person who was overlooked for benefits, perhaps for months or years by the Social Security Administration, was not being discovered by any active process, and transformed into a person who now gets benefits based on actions by the interfaced process.

    And the calculations are hardly routine. The routine calculations had the person’s record as dormant for all new benefits.

  • [Avatar for primary examiner]
    primary examiner
    August 24, 2022 03:37 pm

    Concerned: why don’t you make it easier for those that may be interested in your question, where in your Spec. do you describe your computer as being a non-conventional one?
    Would you share those paragraphs with us? That information must be readily available to you.

  • [Avatar for concerned]
    concerned
    August 24, 2022 03:27 pm

    My appeal also hit Law 360 and Patently O yesterday.

    Mr. Crouch’s opinion on my statement in the specs was the court made the statement in the specs to be a greater admission than it really was.

    But it was not a statement of routine, well understood and conventional under any circumstances.

  • [Avatar for concerned]
    concerned
    August 24, 2022 02:54 pm

    Anon:

    Thank you!

    Also Judge Chen says my specs admitted the computer is well understood, routine and conventional. I find no such admission.

    Help anyone: Do you find such an admission in my specs? I do not mean Curious’ type of reasoning that the Judge means this, even though he wrote that. Or the case law says “record”, but that means “appendix document.” Intelligent people can write what they really mean and are expected to do the same.

  • [Avatar for Curious]
    Curious
    August 24, 2022 01:53 pm

    Let’s be clear – is this an admission?
    Your memory is as bad as concerned’s memory.

    BTW, one doesn’t have to work at the USPTO to recognize claims that aren’t going to pass 101.

  • [Avatar for Anon]
    Anon
    August 24, 2022 01:47 pm

    Let’s be clear – is this an admission?

    To concerned’s “Actually I think Curious may work for the USPTO. He defends your Agency and states how the USPTO thinks even though your Agency will not write the same.

    Curious retorts: “Not the brightest bulb in the world plus a terrible memory. No wonder it took you 36 years to figure it out.

    It’s either one of the lamest retorts, or an admission (or perhaps both).

  • [Avatar for concerned]
    concerned
    August 24, 2022 12:45 pm

    Actually I caught Primary Examiner’s mistake. I was polite not pointing it out.

  • [Avatar for Curious]
    Curious
    August 24, 2022 11:38 am

    I quoted the SmithKline decision throughout. And SmithKline says references to the record, not joint appendix or Federal Circuit rules. Please feel free to point to joint appendix or Federal Circuit rules in SmithKline.
    The appendix is the record. When the Federal Circuit refers to the “record,” they are referring to what is within the appendix.

    Our argument was not underdeveloped per SmithKline, the case quoted in my decision.
    Whether your argument was underdeveloped or not is not your decision to make.

    Many are disability attorneys. I presume those disability attorneys passed the bar.
    No offense to disability attorneys, but I expect that particular field of practice does not attract the “best and brightest.” The average annual pay for a social security disability attorney (per Ziprecruiter) is between $45K-$68K (information provided by state). An entry level patent attorney can be making 3 times as much. An experienced partner can be making 10 times as much (or more).

    Did the court forget the nature of my claims and who the claims seek to help?
    Repeat after me – it doesn’t matter.

    Curious: are you into s&m, or are you replying to concerned as part of some sort of pro bono program ?
    Somewhat pro bono and somewhat annoyed that concerned whines about his case incessantly. He also blatantly (and repeatedly) misrepresents his record. In so doing, he makes us look bad. He thinks the patent world is out to get him when the reality is that after Alice came out, he had zero shot of getting a patent with his claims.

    Actually I think Curious may work for the USPTO. He defends your Agency and states how the USPTO thinks even though your Agency will not write the same.
    Not the brightest bulb in the world plus a terrible memory. No wonder it took you 36 years to figure it out.

    curious: mental steps
    Your question should be directed to concerned. Concerned, expectedly, couldn’t figure out your simple mistake.

    the evidence showed why the parents and professionals could not do the mental steps either
    No. The evidence was merely “the Medicaid applications from all 50 states, the Social Security benefit application, the Social Security benefit handbook and the two university studies.” As argued in your Appeal Brief before the Board, “the facts show that the Appellant’s claimed process has never been used independently or in combination, the process is not conventional, not routine and not well understood.”

    What you don’t get (and likely never will get) is that under Step 2B, the abstract idea (e.g., the mental steps) are ignored and the Court looks at what is left over (i.e., “additional elements) to determine whether there is an “inventive concept.” This is what the Board did on page 14 of the original Decision on Appeal.

  • [Avatar for concerned]
    concerned
    August 24, 2022 09:55 am

    Primary Examiner:

    While you wait Curious’ reply, the evidence showed why the parents and professionals could not do the mental steps either. A parent thinking that his 40 year son is eligible for SS off the parent’s work record, and the son has not been in the household since age 3 and never worked. Or divorce, the father forgot the mother and also basically divorced the children. Or fraud, do not tell about the son, other household members get more money. All explained in the Official Record, all explained in my first IPWatchdog article back in 2018.

    In theory, perhaps mental steps solves the problem. Not in reality and not since 1956, the inception of the program.

    And in theory, mental steps could prevent all motorized vehicle accidents. In reality, accidents have never been eradicated from society.

    It is nice to pretend every one is an expert in my field. And that a person was not getting his rightful SSDI, then my invention got that person his SSDI, yet nothing transformative happened, it was all insignificant post solution activity.

    Evidence matters unless everyone is an expert, especially ones who never developed one SSDI award in their life.

  • [Avatar for primary examiner]
    primary examiner
    August 24, 2022 09:28 am

    curious: mental steps, as defined by the USPTO, do not have to be performed by a person with “development disabilities”. I don’t understand your question.

    I don’t know much about the evidence /CAFC part; I’m not an attorney myself, that’s outside my scope of expertise.

  • [Avatar for concerned]
    concerned
    August 24, 2022 09:27 am

    Night Writer:

    B, Anon and you: I would have been proud to have you as my attorney, win or lose.

    Thank you for chiming in.

  • [Avatar for concerned]
    concerned
    August 24, 2022 09:21 am

    Primary Examiner:

    Actually I think Curious may work for the USPTO. He defends your Agency and states how the USPTO thinks even though your Agency will not write the same.

    Your opinion please: Could a person with development disabilities think of my 14 steps on their own as implied by the CAFC? Any explanation why their parents, caregivers and professionals at Social Security never did the 14 steps on their behalf?

    I also wondered if the CAFC side steps the evidence, how? My attorney only stated 79 times the word evidence in his blue brief, stated why our evidence was important and where the evidence was submitted in the Official Record. It meets the SmithKline standard. However, the CAFC did address the evidence issue unlike your Agency who could have given a reason why my evidence was not relevant in the USPTO opinion.

    A good sitcom could be Curious submitting a patent application as a private attorney, then prosecuting it as an examiner by putting a hat and a badge on, back and forth. It could explain his high approval rate on patents: He prosecutes his own applications.

  • [Avatar for Night Writer]
    Night Writer
    August 24, 2022 09:16 am

    One question to ask yourself is what would a law that implemented Alice look like? Would it be possible to write legislation to codify Alice?

    I don’t think so.

  • [Avatar for Night Writer]
    Night Writer
    August 24, 2022 09:14 am

    The core problem is there is simply no sense to the Scotus 101 case law. After all these years of having to deal with it, the best I can figure out is they created the “abstract idea” judicial exception like it was a mathematical equation. But just like grouping applied math in with the mathematical equation, the Scotus created this category of “abstract idea” without boundaries.

    Literally, any claim can easily be held ineligible under 101. And then they put back into the analysis inventive concept which is a way to reduce a claim to nothing and analyzing a claim piecemeal.

    Just nuts. What is clear is that this is like so many other cases from the Scotus. They create some test that they have made up and then let the lower courts use it as they will. The “Rule of Reason” and “Qualified Immunity” are two other examples.

    These rules that the Scotus comes up with are clearly unconstitutional. It is the Scotus taking over the legislative and executive branches of government. They create a rule that can fit anything and to give the lower courts unlimited power to act as sovereigns.

  • [Avatar for Primary examiner]
    Primary examiner
    August 24, 2022 08:50 am

    Curious: are you into s&m, or are you replying to concerned as part of some sort of pro bono program ?

    ?

    A bit off topic: Anyone else think ‘curious and concerned ‘ would be a great name for a sitcom?

  • [Avatar for concerned]
    concerned
    August 24, 2022 06:36 am

    “Its seems that you are smartening up. Writing nothing about an argument is one of the Board’s favorite tricks.”

    Actually, I been stating that something is very afoul in the patent system for a while. Primary Examiner asked me to stop writing about it. If the law is allegedly on their side, why resort to questionable tricks?

    I am just a common guy who wants to help people get their rightful benefits and health coverage. An application mistake is the only reason the person is not getting the same.

    One person pointed out to me that I seemed to have the entire U.S. government fighting. That one of the CAFC judges even took his robe off and made arguments on behalf of the USPTO/Board that were never made by them. Of course, this judge was a solicitor for the USPTO at one time I am told.

  • [Avatar for concerned]
    concerned
    August 24, 2022 06:10 am

    Curious:

    “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. See SmithKline Beecham
    Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (explaining that a party forfeits undeveloped arguments on appeal).”

    I quoted the SmithKline decision throughout. And SmithKline says references to the record, not joint appendix or Federal Circuit rules. Please feel free to point to joint appendix or Federal Circuit rules in SmithKline. Our argument was not underdeveloped per SmithKline, the case quoted in my decision.

    I glad you acknowledge you are smarter than everyone in my field. Yes it took 36 years for me to come up with this very first solution that nobody to date figured out since 1956, the inception of the SSDI program. Many are disability attorneys. I presume those disability attorneys passed the bar.

    The solution looks oh so easy after it is revealed to the world. The CAFC even implies people with developmental disabilities (people seeking their own benefits) could have come up with these 14 steps, even though their caregivers did not. Did the court forget the nature of my claims and who the claims seek to help?

    I admit that I am not that smart. I seemed to think that a Social Security Administration computer network that cannot find these errors and omissions on submitted applications, but does find these errors and omissions with my invention, a technological improvement occurred to their computer network. But then again, everyone in my field does not rise to your intelligence level.

    Couple other observations: The author of this article uses “snub” in her title. The reporter who sought me out yesterday went to infringement and asked how much someone can make running off with my idea. The reporter went there on his own. Gee, a hidden agenda could really be the deal on this prosecution?

  • [Avatar for Curious]
    Curious
    August 23, 2022 11:51 pm

    Of course, by writing nothing, we have nothing to attack.
    Its seems that you are smartening up. Writing nothing about an argument is one of the Board’s favorite tricks. To be clear, when I refer to the Board, it is only certain APJs. There are certainly very good APJs at the Board. However, there are quite a few that I would immediately fire if I was king of the USPTO for a day.

    Regardless, while the Board does not directly address your “evidence,” they addressed the argument that you evidence supposedly supports. Look at the last paragraph on page 16 of the Decision. They write “the difficult with Appellant’s position is that these are not technological improvements or improvements to a technological area. The alleged improvement lies in the abstract idea itself, not to any technological improvement.” Here, they gave you the benefit of the doubt that your invention was an improvement, but that wasn’t enough. They made a similar acknowledgement on page 6 of the Decision on Request for Rehearing.

    The CAFC quoted SmithKline, not their Federal Circuit rules. Nice try again.
    They quoted SmithKline about underdeveloped arguments. It was YOU that went on a tangent about citations to a record, which I addressed by referring to the Federal Circuit rules since your comment reflects your lack of understanding between the relationship of the appendix and the record. Seriously, don’t become an attorney — you aren’t good at this.

    Sure, I figured out those 14 steps after 36 years of on point experience.
    It took you 36 years? Seriously? Someone could be receiving SSDI benefits so you look to see if they might be eligible via parents or spouse. The rest is simple data gathering/record keeping. It took you 36 years to come up with this?

    And all the professionals that made SSDI errors over the years and still making those errors, are they just idiots that are beneath your level of intelligence?
    Pretty much. This is simplistic record keeping.

  • [Avatar for concerned]
    concerned
    August 23, 2022 11:23 pm

    Curious: There you go again with conjure. Is it the tough for the USPTO and Board to just write that statement you just speculated was their thoughts? Of course, by writing nothing, we have nothing to attack.

    The CAFC quoted SmithKline, not their Federal Circuit rules. Nice try again.

    Sure, I figured out those 14 steps after 36 years of on point experience. And nobody else did per no 102 or 103 rejection. As smart as you are, you did not figure them out either. Neither did the authors of the 2 university study, one with 25 years and one with 35 years.

    And all the professionals that made SSDI errors over the years and still making those errors, are they just idiots that are beneath your level of intelligence?

  • [Avatar for Curious]
    Curious
    August 23, 2022 10:31 pm

    Really, a person with diminished mental capacity, who relies on other people for decisions, would go through these 14 steps?
    You figured it out. I don’t see the issue.

    Nice try Curious. I read SmithKline. It said reference the part in the record. No mention of a joint appendix to accommodate laziness.
    Nice try. The quote to SmithKline was about undeveloped arguments. BTW — the joint appendix is the record. I suggest you review the Federal Circuit Rule 28(f) (“Any reference in a brief to the underlying record or to material authorized to be included in an appendix must be to the corresponding appendix page number(s) assigned to the material under Federal Circuit Rule 30(b)(2)(C)”). Rule 30 also applies.

    How do you know the USPTO and Board were not persuaded by the evidence? That was never stated in the Official Record. In fact, the evidence was never addressed to state an opinion.
    Because your claims were rejected under 101 by the examiner and that rejection was affirmed by the Board — hence, not persuasive. The logic isn’t that hard to follow here.

    Are you really an USPTO attorney?
    That is probably one of the better attempts at insulting me that you, B, and Anon have tried these past couple of days. But no, I’m not.

    How will B even know where to start attacking?
    LOL. The blind leading the blind.

  • [Avatar for C.W.]
    C.W.
    August 23, 2022 09:54 pm

    Has anyone yet plotted a graph of “Gross Revenue of Applicant” vs. the number of section 101 rejections levied to Applicants?

  • [Avatar for concerned]
    concerned
    August 23, 2022 08:58 pm

    Nice try Curious. I read SmithKline. It said reference the part in the record. No mention of a joint appendix to accommodate laziness.

    How do you know the USPTO and Board were not persuaded by the evidence? That was never stated in the Official Record. In fact, the evidence was never addressed to state an opinion.

    Are you really an USPTO attorney?

  • [Avatar for concerned]
    concerned
    August 23, 2022 08:51 pm

    Another interesting remark:

    “This is the same process a person would engage in to determine benefits on their own.”

    Really, a person with diminished mental capacity, who relies on other people for decisions, would go through these 14 steps?

    And as our evidence showed, the parents do not know to go through the steps. It is right in the university study that the parents do not know. Why do we think this has been a problem for 56 years?

    How will B even know where to start attacking?

  • [Avatar for Curious]
    Curious
    August 23, 2022 08:45 pm

    Still the judge’s law clerk cannot look at a specific spot in the Official Record?
    There is a joint appendix for a reason. There is where the law clerk looks. Not there, not considered.

    Curious: CAFC did not say our evidence was bad or irrelevant. Neither has the Board or the USPTO.
    Your evidence wasn’t in the record the CAFC looked at so why would they? The Board and the USPTO wasn’t persuaded by your evidence because your evidence wasn’t germane to the issue.

    I think a person (even a trained pig) could easily go to the Official Record on June 10, 2017 as stated on page 22 of 78.
    There is a joint appendix for a reason. There is where the law clerk looks. Not there, not considered.

    You are the only one criticizing the level of the evidence or saying “Your evidence is persuasive of next to nothing.” Who wrote that statement in our record?
    Who said it was persuasive of anything besides yourself and B? No one. If you were an attorney and your read the case law, you would already know why your “evidence” wasn’t persuasive. I already gave you the case to read in the other thread.

    Parts of the Record? Documents submitted June 10, 2017 of the Official Record per page 22 of 78 of the blue brief. That is pretty clear.
    There is a joint appendix for a reason. There is where the law clerk looks. Not there, not considered.

    Forget that Chen couldn’t follow case law on dry pavement if it left a blood trail, if I wrote something this dishonest I’d be sanctioned and possibly disbarred.
    The truth of the matter is that the case law was never for you (at least since Alice). This wasn’t a close case.

  • [Avatar for concerned]
    concerned
    August 23, 2022 08:44 pm

    “the claims here do not detail how the computer should go about determining eligibility for benefits, beyond saying that the computer should determine eligibility based ‘on the identified information’ and ‘current SSDI benefit legal requirements.’” This is the same process a person would engage in to determine benefits on their own, “with or without a computer,” said the court.

    The representative claim has 14 “how to” steps, go read them yourself. In fact, Curious even was criticizing the representative claim as too long. And since SSDI benefit requirements may change per Congress, of course that would be the phrased used.

  • [Avatar for B]
    B
    August 23, 2022 08:29 pm

    @ Greg DeLassus “I asked myself the same question after I finished reading the opinion. I do not know that I have a great answer.:

    Greg, this decision is so far removed from the truth I could spit. The more I read this decision, the angrier I get.

    Forget that Chen couldn’t follow case law on dry pavement if it left a blood trail, if I wrote something this dishonest I’d be sanctioned and possibly disbarred.

    @ Curious “I read the opinion through (for a second time) to try to get a feel as to what Chen wanted to convey with this opinion, and I’m not getting much.”

    Nor will you. Omitting and distorting issues and facts is an art form Chen has mastered.

  • [Avatar for concerned]
    concerned
    August 23, 2022 08:11 pm

    Further SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) states:

    “[t]he argument [in the appellant’s brief] must contain the
    contentions of the appellant on the issues presented, and the reasons therefor, with citations to the authorities . . . and parts of the record relied on . . . .”).

    Parts of the Record? Documents submitted June 10, 2017 of the Official Record per page 22 of 78 of the blue brief. That is pretty clear.

    I hope I am not being taken advantage of because I am a layperson.

  • [Avatar for concerned]
    concerned
    August 23, 2022 07:58 pm

    Curious: CAFC did not say our evidence was bad or irrelevant. Neither has the Board or the USPTO.

    CAFC said we made a Skelton argument that was undeveloped. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) explaining that a party forfeits undeveloped arguments on appeal.

    Per the quoted SmithKlinecase:

    “A skeletal ‘argument’, really nothing more than an assertion, does not preserve a claim. . . . Especially not when the brief presents a passel of other arguments . . . . Judges are not like pigs, hunting for truffles buried in briefs.”

    That is odd. We did not make assertions through the Official Record. We offered hundreds of pages of evidence proving our contentions and preserved the argument in the opening brief on page 22 of 78 and during oral arguments, position 1:30. I think a person (even a trained pig) could easily go to the Official Record on June 10, 2017 as stated on page 22 of 78. And we said what the evidence showed on both page 22 of 78 and at position 1:30.

    You are the only one criticizing the level of the evidence or saying “Your evidence is persuasive of next to nothing.” Who wrote that statement in our record?

  • [Avatar for Curious]
    Curious
    August 23, 2022 07:21 pm

    I was the first to track a parent probably in any field of commence.
    (?_?)

    There is a major distinction between tracking the person with the disability and tracking their parent. That is how 11.9% of people are overlooked, the person was tracked, not the parent’s triggering event.
    Tracking a person (child or parent) can be performed mentally. It isn’t special. It isn’t inventive pursuant to Federal Circuit precedent.

    I went back. I did not see the specs in the joint appendix.
    And why not? The specification is very important in these matters. How could it get omitted?

    So lazy judges is your excuse to screw me out of helping people? Too lazy to look at the Official Record on June 10 2017, yet the judges found the specs from the Official Record.
    Your claims remained rejected — not because your evidence wasn’t considered. Your evidence is persuasive of next to nothing. Seriously, how many times do I have to make this point?

  • [Avatar for concerned]
    concerned
    August 23, 2022 07:00 pm

    Curious: You are correct. Specs are in joint appendix, Ijust found it. My mistake and apologies.

    Still the judge’s law clerk cannot look at a specific spot in the Official Record?

  • [Avatar for concerned]
    concerned
    August 23, 2022 06:53 pm

    Then perhaps the courts should stop using their term “inventive concept.” Nobody doing my process suggests it is inventive, like the first radio, first airplane, etc. Of course like the court said, there is no definition so I am using mine.

    I was the first to track a parent probably in any field of commence. There is a major distinction between tracking the person with the disability and tracking their parent. That is how 11.9% of people are overlooked, the person was tracked, not the parent’s triggering event. All explained in the Official record and exactly pinpointed where in the record in the blue brief. So lazy judges is your excuse to screw me out of helping people? Too lazy to look at the Official Record on June 10 2017, yet the judges found the specs from the Official Record.

    I went back. I did not see the specs in the joint appendix.

  • [Avatar for Curious]
    Curious
    August 23, 2022 06:13 pm

    Maybe they figured that if they did not actually address on the merits the weakness of some of the more “out there” arguments (e.g., APA violation), then they would see this sort of challenge repeated?
    Probably the best answer.

    Chew on this: It has come to our attention that the evidence submitted (nobody has ever used our process) apparently crashed the USPTO system. It shows being received by the USPTO but cannot be pulled up on the file wrapper in the public PAIR. Try it for yourself.
    Because you cannot access cited NPL from public PAIR. Its been that way for well over a decade.

    The inventive step is tracking the parent, not the person. Nobody in my field ever had tracked the parent, the requisite data is not even collected by anyone.
    Tracking a person (whether the parent or a recipient) is what they call a “mental step” — it can be performed mentally. You may not do it mentally, but conceivably, it can be performed mentally, which is enough for SCOTUS, CAFC, and PTAB.

    And I am told the entire Official Record should be considered upon appeal.
    Then you were told wrong. There is a joint appendix for a reason. Sometimes appeals before the Federal Circuit could involve 1,000 if not 10,000 pages. NO ONE is going to review all of that. They (should) read the Briefs and maybe they’ll look to the joint appendix if there is something they want to review. However, no one looks at the entire record.

    The CAFC addresses the specs, yet they were not in the joint appendix either.
    Your specification wasn’t in the joint appendix? I find that hard to believe. Why would you not put your specification in the joint appendix?

    And the Official Record reveals many times over that we explained what the evidence shows.
    … that other people weren’t using your invention. Big f’n deal. How many times do I have to tell you that isn’t going to help your case? There is nothing magical, special, or probative about your “evidence.”

  • [Avatar for concerned]
    concerned
    August 23, 2022 06:12 pm

    Clarification: The 55 pages of documents revealed in the article was actually 55 documents that may have reached over 1,000 total pages.

    All proving the new concept was tracking the parent so a triggering event would not be overlooked, the improvement to the existing technology and correction of errors and omissions made by professionals.

    As I maintained, did anyone look at the evidence?

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

    The court said we failed to explain with specificity what the documents show OR to include them in the joint appendix.

    Actually we did mention what the evidence shows on page 22 of 78 of the blue brief and 1:30 on the oral arguments. And the Official Record reveals many times over that we explained what the evidence shows.

    Chew on this: It has come to our attention that the evidence submitted (nobody has ever used our process) apparently crashed the USPTO system. It shows being received by the USPTO but cannot be pulled up on the file wrapper in the public PAIR. Try it for yourself.

    It could offer an explanation why the examiner and Board never addressed the evidence, because perhaps they could not see it?

    The inventive step is tracking the parent, not the person. Nobody in my field ever had tracked the parent, the requisite data is not even collected by anyone.

    This inventive step is clearly in the representative claim and the evidence proves our point, the very evidence nobody addressed. The CAFC tries to avoid the evidence on a technicality, yet 79 times the word evidence is used in the blue brief. And I am told the entire Official Record should be considered upon appeal. The CAFC addresses the specs, yet they were not in the joint appendix either. Can a court just pick and chose what comes in from the Official Record?

    A reporter called me today for more information regarding this appeal, which was given.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    August 23, 2022 04:45 pm

    “[W]hy did this panel not issue a R36 affirmance? Rather, they issued this as a precedential opinion.”

    I asked myself the same question after I finished reading the opinion. I do not know that I have a great answer. Maybe they figured that if they did not actually address on the merits the weakness of some of the more “out there” arguments (e.g., APA violation), then they would see this sort of challenge repeated?

  • [Avatar for IamI]
    IamI
    August 23, 2022 04:40 pm

    A very much expected decision by the CAFC here.

  • [Avatar for Pro Say]
    Pro Say
    August 23, 2022 04:27 pm

    . . . and yet another independent American inventor . . . is robbed in plain sight . . . of his Constitutional rights . . .

    The Death Squad PTAB has a twin . . . one as evil as itself . . .

    Thy name be the Death Squad CAFC.

    And there be an evil bystander watching as these innovation executions take place.

    Over and over and over again.

    One after another after another after another.

    Year after year after year.

    Thy name be Congress.

  • [Avatar for Curious]
    Curious
    August 23, 2022 02:40 pm

    As Chen put it, this wasn’t a “close case.” However, this begs the question as to why did this panel not issue a R36 affirmance? Rather, they issued this as a precedential opinion.

    I read the opinion through (for a second time) to try to get a feel as to what Chen wanted to convey with this opinion, and I’m not getting much.