Tillis Bill Would Restore Needed Clarity and Predictability in Patent Eligibility Law

“The Patent Eligibility Restoration Act would not, as some claim, allow the patenting of human genes or cause the sky to fall with a flood of software patents.”

https://depositphotos.com/6496641/stock-photo-looking-at-the-opinion-section.htmlOver the last 15 years, the United States Supreme Court has mutated patent eligibility into an impossibly complex and confusing mess. The Court’s current eligibility test strays far from Congress’s original intent, erodes trust in predictability, and has left many remarking that innovation in the United States is falling behind due to uncertainty of patent eligibility law. Even more troubling, the resulting uncertainty of patent ineligibility for large swaths of innovation in critical technology areas, including artificial intelligence, poses significant risks to U.S. competitiveness, economic growth and national security.

The Court has had opportunities to rectify its patent sinkhole but recently declined another chance to mend the chaos. When the Court denied certiorari in American Axle v. Neapco—despite the Solicitor General’s plea to hear the case—it became clear that Congress must step in to rescue U.S. innovation.

Restoring Certainty

The bipartisan Patent Eligibility Restoration Act of 2022, introduced by Senator Tillis, does just that. The bill would clarify what inventions are eligible for patent protection. By abrogating the Court’s eligibility test that has put patent protection into disarray and providing eligible subject-matter categories with limited exclusions, the Patent Eligibility Restoration Act will provide increased clarity and predictability while giving inventors the certainty they need to invest in groundbreaking technologies.

While many have applauded the bill, those favoring weak patent rights have made false claims, such as that the bill would allow the patenting of human genes, or that it would open the floodgates to “bad software patents.” The bill does no such thing. The bipartisan legislation results from nearly four years of stakeholder discussions across a broad spectrum of industries and communities. And a closer look at the bill’s text shows that these false flag attacks against it are unfounded.

Specifically, while Section 101(a) of the new bill maintains the current statutory scope of patent-eligible subject matter (processes, machines, manufactures, compositions of matter, and improvements thereof), the bill also lists certain “eligibility exclusions” in Section 101(b) that are the only exceptions to eligible subject matter. These exclusions are: “(1) mathematical formulas, apart from a useful invention or discovery, (2) processes (a) that are non-technological economic, financial, business, social, cultural, or artistic, (b) that can be performed solely in the human mind, or (c) that occur in nature independent of human activity, (3) unmodified human genes and (4) unmodified natural material.” The bill also provides that excluded non-technological processes are patentable if embodied in a machine or manufacture, unless that machine or manufacture is recited in a patent claim without integrating, beyond merely storing and executing, the process steps that the machine or manufacture performs. And the bill affords patentability to innovative techniques involving human genes and natural materials that are “isolated, purified, enriched, or otherwise altered by human activity, or that is otherwise employed in a useful invention or discovery.”

Of equal importance, the bill resets the proper scope of analysis of Section 101 relative to Sections 102 and 103. Clarifying Section 101 by removing “new,” the bill clarifies that Section’s 102 novelty gatekeeper role and Section 103’s obviousness requirement appropriately serve their respective roles. The bill also appropriately mandates that eligibility determinations should consider whole claims rather than discounting claim elements, as in the Court’s current eligibility-determination process. Thus, the bill nicely separates eligibility from other patentability tests to realign with the drafters’ intent of the 1952 Patent Act.

The Example of In re Killian

Those who prefer to see the current disarray of Section 101 law contend that the Patent Eligibility Restoration Act would result in a surge in “do it on a computer” software patents, in which otherwise ineligible subject matter is carried out by computer software. But these kinds of patent claims are ineligible under the bill, which deals with this issue directly. Take, for example, patent claims at issue in the Federal Circuit’s recent decision in In re Killian, 45 F.4th 1373 (Fed. Cir. 2022).

In Killian, the Federal Circuit affirmed the PTAB’s affirmance of an examiner’s rejection under Section 101 of patent claims “for determining eligibility for Social Security Disability Insurance [SSDI] benefits through a computer network.” The Federal Circuit found that the claims—which called for accessing federal and state databases, selecting an individual from the databases, determining whether the individual was receiving SSDI benefits, identifying the name and Social Security number of the individual, and deciding whether the person was eligible for SSDI benefits based on identified information and legal requirements—were steps that the human mind could achieve and that the inclusion of a generic computer to perform these steps did not save the claim. The decision then analyzed whether the claims contained an “inventive concept,” as required under the Supreme Court’s eligibility test, and found that they did not, rendering them invalid under Section 101.

Under the framework laid out in the Patent Eligibility Restoration Act, the Killian claims would meet the same fate. Here, the claimed process for determining the eligibility for Social Security benefits clearly falls under section (b)(1)(B)(i), which states that “non-technological economic, financial, business, social, cultural, or artistic” processes are excluded from patent eligibility. The claims are not impacted by section (b)(2)(A) for processes implemented on machines either because they recite nothing more than “merely storing and executing” the steps of the process on a computer. Notably, and as demonstrated here, analysis under the Patent Eligibility Restoration Act’s framework is more straightforward than the Court’s current framework, which also requires assessing whether an “inventive concept” confers eligibility onto claims. In this way, many of the “do it on a computer” patents that the bill’s opponents point to would fare the same under Senator Tillis’ bill. [Editor’s Note: Killian’s counsel has shared his argument as to why the claims should be patent eligible here.]

Getting Back on Equal Footing

The Patent Eligibility Restoration Act strikes a proper balance by allowing patents for cutting-edge technologies that are at risk but excluding non-technological inventions that are merely performed on a computer. The bill would not, as some claim, allow the patenting of human genes or cause the sky to fall with a flood of software patents. Instead, the bill injects clarity and predictability into Section 101 law, something stakeholders, practitioners and jurists have sought for years. Clearing up the muddy waters of patent eligibility will put the U.S. back on equal footing with our global peers, providing much-needed aid to our innovation economy.

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37 comments so far. Add my comment.

  • [Avatar for concerned]
    concerned
    November 17, 2022 05:31 am

    “From reading your writings over the years, you do not appear to have received such an honest assessment of either your options or your chances of success.”

    I think B has been straightforward with me and so was my first attorney. The law is ever changing in the judges’ image even though no new statute since 1952.

    The prosecution of my patent leads a person to think something is inherently wrong with the process. That leads me to hope things may change for the better.

    Evidence: If it is irrelevant, the other side should write the same. Instead, the evidence is dodged as if something is being hidden or devious. The courts telling us we did not preserve the evidence even made my wife laugh.

    The law: The other side telling me I met the law, not their law.

    Routine, well understood and conventional: Obviously a falsehood, no s102 or s103.

    I am predisposed to stand up against tyranny. “Conflict; war; strife; bright-headed” It is my surname. I wonder if my case was made precedential because we stood up against them and that was the court’s push back?

    Patent or no patent, there is still hope to help people with disabilities, my objective.

  • [Avatar for Anon]
    Anon
    November 16, 2022 03:47 pm

    involve automatically running away from the Federal Circuit’s precedent regarding 101

    Has never happened.

    Quite in fact it is you that sprints from the fact that THAT precedent is a Gordian Knot of conflict.

    You seem to want to think that such conflict has no real effect on actual patent prosecution.

    You could not be more wrong.

    But you continue to be you, my not-so-curious friend, and continue building that Peak of yours.

  • [Avatar for Curious]
    Curious
    November 16, 2022 03:14 pm

    My that’s a pretty strawman.
    I thought my comments accurately reflected your position (or non-positions as the case may be) as to what I should be arguing.

    You could actually prove me wrong by having a discussion that doesn’t involve automatically running away from the Federal Circuit’s precedent regarding 101. However, from past experiences, I know you won’t. The ACTUAL practice of law isn’t your thing. You like ivory tower discussions, which is your prerogative. I enjoy high-level discussion of the law as well. However, I also enjoy discussing the nuts and bolts of applying the law — not your thing, I understand.

  • [Avatar for Anon]
    Anon
    November 16, 2022 02:14 pm

    Anon would have me get a bad result for my client by arguing…”

    My that’s a pretty strawman.

    Did you enjoy beating it?

    Please clean up after yourself.

  • [Avatar for Curious]
    Curious
    November 16, 2022 11:31 am

    Curious admits to the law being butchered, and then turns around and wants to shrug his shoulders and pretend that his role in perpetuating that lack of the Rule of Law is the proper path for an attorney.
    Yawn. Anon would have me get a bad result for my client by arguing, before the Federal Circuit, that the Federal Circuit’s own precedent is wrong. I’m sorry, I work in the best interest of my clients Tilting against armor-clad windmills like Anon would advocate is not in the best interest of my client.

    The best interest of my client involves understanding how the Federal Circuit is applying its own precedent and using that precedent to get a good result for my client.

    The Federal Circuit is bound by its own precedent — a point they have articulated many times. If I want to win at the Federal Circuit, then I should argue that precedent. Sure, I could separately argue that that precedent is not consistent with Supreme Court law. However, making that argument alone is not going to get me a good result.

    If Anon’s or B’s clients wants them to lose at the Federal Circuit — that’s their choice. My clients, on the other hand, want me to win at the Federal Circuit.

    Suppose I compromised my principles and went along with courts to play their game, adjusted my claims to something never met, then still received no patent?

    I would hate myself for caving in.
    Hope is a noble but dangerous drug. There is nothing inherently wrong with having hope for prevailing on a 1000-1 bet. However, before you make such a decision should have been honestly informed as to both the likelihood of success and your other options. From reading your writings over the years, you do not appear to have received such an honest assessment of either your options or your chances of success.

  • [Avatar for concerned]
    concerned
    November 16, 2022 07:58 am

    Suppose I compromised my principles and went along with courts to play their game, adjusted my claims to something never met, then still received no patent?

    I would hate myself for caving in.

  • [Avatar for Anon]
    Anon
    November 16, 2022 07:17 am

    Curious admits to the law being butchered, and then turns around and wants to shrug his shoulders and pretend that his role in perpetuating that lack of the Rule of Law is the proper path for an attorney.

    Instead of dealing with this in a straightforward manner, all he wants to do is build his peak of Mount Stupid ever higher.

  • [Avatar for concerned]
    concerned
    November 15, 2022 07:18 am

    Curious:

    “Examiners, the Board, and the Federal Circuit have butchered the law”

    B and I would agree with your statement. Some questionable tactics have also been deployed while butchering the law. Unless B can find a panel or court that actually cares what is going on, we realized that my situation is hopeless.

    Hopeless, not because I am a clumsy basketball player and 5’2″, I do make 90% of my 3 pointers. The movie Moneyball makes the point about funny players who are talented, yet overlooked.

    Hopeless, because of prejudice and bias of the judges who make law in their own image. B is standing up to this wrongful dispensing of law. He may not be successful, the cause of his actions will always be right.

    The Oakland A’s did win 20 straight baseball games (Moneyball) , but lost in the playoffs. No World Series. We have a precedential decision, no patent. Both the Oakland A’s and us are proud of the efforts. Going down at the plate swinging.

  • [Avatar for Curious]
    Curious
    November 14, 2022 11:58 pm

    How would you get the answers from someone committing fraud by not acknowledging their adult child to get more income for others? Are they just going to confess to a felony because you are smarter than any expert in my field?
    I suspect you are trying to make a point but you are missing about 70% of the pertinent facts to make that point clear. This aside, as a practicing patent attorney with decades of experience, I’m asking myself, why is this important in the context of patent law? And the answer I’m getting is that whatever point you are trying to make isn’t important.

    How would you get answers from the parent who does not want to discuss his ex-wife or his child, he wants nothing to do with them and has not for 30 years. Are you going to twist his arm until he tells you?
    Obtaining information (whether it is from a computer database, paper files, or from someone’s oral statement) isn’t going to save your invention from 35 USC 101.

    You do not have written consent from the above parents to run to Social Security Administration and get the answer from them.
    I’ve made this point before, your claims say nothing about obtaining consent. Moreover, getting consent to retrieve information is something that is ancient (i.e., tens of thousands of years old). That isn’t going to save your claims. Moreover, the Court doesn’t care whether the SS Administration prevents that information from being disclosed without consent. Assuming that a person had consent (again, merely obtaining consent doesn’t confer anything regarding patent eligibility), your invention could be performed by someone asking the right questions of people who have access to that information.

    You problem is that you are focused on a single invention — yours — and you have no visibility as to how 101 has been applied to a variety of different technologies. When you’ve seen hundreds of rejections under 101 and how Examiners, the Board, and the Federal Circuit has butchered the law, it becomes pretty clear what inventions have a chance to get past 101 and what inventions don’t. Your claims, as written, have zero chance based upon how the law has been applied the last 8 years. You are like the slow, clumsy, 5’2″ kid trying out for the varsity basketball team who cannot understand why he wasn’t selected for the team. Of all the kids who tried out, you were going to be the last person picked for the team.

  • [Avatar for concerned]
    concerned
    November 14, 2022 08:43 pm

    Curious:

    So you think the experts should have been asking the right questions since 1956. The experts were asking the right questions, that is the point.

    How would you get the answers from someone committing fraud by not acknowledging their adult child to get more income for others? Are they just going to confess to a felony because you are smarter than any expert in my field?

    How would you get answers from the parent who does not want to discuss his ex-wife or his child, he wants nothing to do with them and has not for 30 years. Are you going to twist his arm until he tells you?

    You do not have written consent from the above parents to run to Social Security Administration and get the answer from them. Or are you going to just do a mind meld on the Social Security Administration because allegedly my claims can be done mentally?

  • [Avatar for Lab Jedor]
    Lab Jedor
    November 14, 2022 06:42 pm

    I prefer the term “computer implemented invention” patents over “software” patents. Software is the written or stored exponent of computer instructions. They are statements that may or may not be executed.

    You say that computer inventions that have a “… process is embodied in a machine” would be patent eligible under Tillis, if I understand you correctly. This is even currently not true and would certainly not be true under the new Tillis proposal. (Digital cameras, anyone?)

    In parallel to the instant post is a post about mathematics in patents. With as often quoted invention the Fast Fourier Transform (FFT) which is a technical computer implementation of the Discrete Fourier Transform or DFT and has applications in many signal-processing related inventions.

    This and other signal-processing inventions that for instance are part of machines like smartphones, MRI machines, and cryptographic devices are all in essence (to a non-expert) calculating machines. What they also all do at one level of description is retrieving, executing, and storing. Because that is what computers do.

    The distinguishing properties of the claimed computer implemented inventions of course are the dataflows and instructions of the claimed inventions. For instance the dataflow of a digital IIR filter is different from a digital FIR filter (whatever these are) and the performance of such filters is measurably different. Both such filters do storing and executing. But that is of course not the distinguishing property. Thus, the “storing and executing” requirement is a simplification and misrepresentation of computers. And as you say yourself: that is deliberate.

    To an opposing attorney it is a welcome gift that computers may be represented as calculating machines that do “merely storing and executing”. I would find it funny from a scientific point of view to have such arguments presented before a court. Were it not that these nonsense arguments are actually made all the time and fully accepted by presumably serious courts like the CAFC. One would expect that an argument like “a wireless communication channel is an abstract idea” or “a digital camera is an abstract idea” would make no chance and would be laughed out of court. Well not so.
    All this nonsense is accepted by courts, and printed in published court decisions. It seems we all have gone collectively mad from a scientific and methodological point of view. The patent universe in the US is currently separate from the scientific universe.

    Your argument (you being pharma inclined I understand) seems to be: the Tillis proposal is good for pharma. The computer implemented inventions are patent ineligible anyway and it cannot get any worse than it is now. So, you computer inventors better agree with the Tillis bill.

    But the Tillis bill will make it worse. The moment it becomes law, all sorts of patent attorney types will shamelessly argue that the claimed invention in a technical sense merely does “storing and executing” and based on the ‘new’ law should be patent ineligible. The “integrating aspect” that is currently part of SCOTUS decisions, is already collectively ignored by the courts.

    If only one judge accepts such a Tillis argument, the whole Alice circus will start again. But now attacking not only what generally are called software patents but the whole computer implemented invention universe.

    Let’s not go there. Some common sense on science and technology is required here. We really are not obligated to make a mess out of everything.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    November 14, 2022 04:39 pm

    [T]his bill (if passed) does an enormous amount of harm, as the whole Alice cycle would start over again, and now with even worse consequences, as almost any patented computer implemented invention could be attacked.

    Look around you. It is already the case that any computer implemented invention patent can be attacked under Alice. Because most of us practice in front of the PTO (where the Guidelines ensure applicant success more often than the case law might suggest), it is easy to lose sight of the fact that vanishingly few software claims hold up when actually asserted. It is already the case that the rate of success on assertion is so small that it would be hardly possible for the Tillis bill to reduce the rate to a statistically discernible degree.

    I am all for solving the patent eligibility issue for diagnostics inventions. But not while pretending also to solve the issue for computer implemented software…

    Fair enough, of course. Politics, however, is the art of the possible. At present, the Tillis bill might be politically possible to pass. The different reforms that others have suggested up and down this thread simply are not politically possible at present. If you want to see a better set of changes to software eligibility (and I know that I do), then you had best get busy with political organizing, because we need a much different Congress to get there. In the meantime, the present Tillis bill looks to me like a net step in the right direction, if not quite as far as ultimately desirable.

  • [Avatar for Lab Jedor]
    Lab Jedor
    November 14, 2022 04:14 pm

    I think that most of us by now agree that Tillis Bill Would NOT Restore Needed Clarity and Predictability in Patent Eligibility. At least not for computer implemented inventions.

    I am all for solving the patent eligibility issue for diagnostics inventions. But not while pretending also to solve the issue for computer implemented software, while deliberately creating future problems. All the while alleging that software related inventors are not collaborating to find a solution.

    The wording of the proposed bill is so extremely bad as to be embarrassing. You can clearly imagine a group of lobbyists providing the wording, considering that in this atmosphere it may actually pass, no matter how bad the language about the technology it deals with. It has a clear “Let’s see if it sticks” quality.

    I mostly agree with Greg, except on his final conclusion. I think this bill (if passed) does an enormous amount of harm, as the whole Alice cycle would start over again, and now with even worse consequences, as almost any patented computer implemented invention could be attacked. It goes beyond codifying Alice. And not only for future applications, but also those patents that previously escaped an Alice fate.

  • [Avatar for Greg DeLassus]
    Greg DeLassus
    November 14, 2022 01:02 pm

    If it has to be interpreted we clearly will be in trouble as much as with Alice… Tillis would not solve the “abstract idea” mess and it would not solve the Mathematics issue for computer implemented inventions.

    Right. This is the point. Sen. Tillis is not trying to solve the whole problem for computer implemented inventions. He creates a small safe-harbor for inventions that could satisfy the machine prong of the machine or transformation test ((b)(2)(A) “[n]otwithstanding paragraph (1)(B)(i), a person may obtain a patent for a claimed invention that is a process described in such provision if that process is embodied in a machine…”), but otherwise basically leaves computer implemented inventions at the mercy of the current Alice case law.

    Sen. Tillis appears to have learned from unhappy fate of the Tillis-Coons bill that there is much more opposition to eligibility reform from banks and internet companies than there is support for eligibility from the software industry. Meanwhile, the opposition to reforms of diagnostic methods is less strident than the support for diagnostic method eligibility reform from the pharma industry. Therefore, the point of this bill is to solve the diagnostics issue without touching the computer implemented invention issue.

    I would prefer if we could solve both issues at once, but Sen. Tillis’ political instincts appears correct to me here. Diagnostics reform can pass already, whereas reforms to software cannot pass presently. If one links the two together, then this simply ensures that neither will pass. So, instead, Sen. Tillis wants to move diagnostics reform while writing the bill to leave software eligibility as it is.

    Those who say that this bill would “kill” software patents are not being honest with themselves. Look at the state of the case law, friends. Software eligibility is already dead. You cannot “kill” that which is already dead. Sen. Tillis’ bill does no harm, although it is certainly true that it will do nothing to help software patents.

  • [Avatar for Curious]
    Curious
    November 14, 2022 10:14 am

    Should I tell a pilot just do not hit the ground to avoid a crash?
    I’ve worked on technology that helps prevents pilots from crashing. It involves technology. Your invention involves knowing the right questions to ask and getting the answers to those questions from known data sources.

    Many of the caseworkers that render the care do not know the difference between SSI and SSDI. Neither do many parents. Off hand, do you know the difference Curious?
    Knowledge of the differences in government programs is not patentable (or patent eligible).

    The parents do not know to ask the question. The child probably has not live with the parents in 40 years and the child never worked under Social Security
    Knowing to ask the right question is not patentable (or patent eligible).

    Curious: People in my field really are not the morons you think they are.
    The program has been in existence since 1956. These questions are the type that should have been asked by your so-called experts since the very beginning. Your invention is directed to an automated way of performing these questions and accessing information.

    1) You identify a person as not receiving SSDI adult child benefits from a state database
    2) You create a record for that person that includes parental/marital information and SS numbers into the data record
    3) You retrieve information from the Federal SS database pertaining to SSDI adult child benefits
    4) You make a determination as to eligibility using that information.
    5) You indicate in the data record that the person is eligible (or not).

    Asking questions and accessing information. When the Federal Circuit disposes of multiple-camera digital phones (Yu v. Apple) under 101, what makes you think that they are going to be persuaded by this? What makes you think that the Federal Circuit (as a body) is going to admit that it was wrong the last 8 years and ditch nearly all of its 101 precedent over this case?

    Persuading someone to agree with your position the first time is hard enough. However, persuading someone that they are wrong (particularly when that someone is a judge) is 100x more difficult. These judges are invested in their past decisions. They aren’t going to turn their backs on them.

  • [Avatar for Anon]
    Anon
    November 14, 2022 09:45 am

    Lab, we are far closer than we are far apart.

    While it is certainly true that one of the possible definitions of “merely” IS “only;” but the ‘wiggle room’ of “simply” is enough (for our Court) to – once again – stick their fingers into the wax nose of patent law eligibility.

    You yourself ‘work this out’ and a later comment in your reply reflects this:

    Now, we all can discuss what was intended by Tillis language. But it is imprecise, sloppy, incorrect and technologically unworkable language. I have no idea what it is technically intended to mean. If taken literally, it is unworkable. If it has to be interpreted we clearly will be in trouble as much as with Alice.

    Further, I entirely agree with your analysis of, “That is the language you get from a politician who is repeating what interest groups tell him what the problem is with computer implemented inventions.

    Thing is – Tillis is smart enough to recognize the current state IS NOT TENABLE, but (being a politician) is beholding to ‘constituents’ (read that as lobbyists) who have NO desire to actually set the law of eligibility to reflect the reality that computers are nothing more than machines. I would reiterate my past expression that “soft”ware is nothing more than a machine component, and is patent-equivalent to ANY of the other machine components with which it is largely interchangeable with (that is, with “hard”ware or “firm”ware.

    That software in and of itself takes various forms is NOT dispositive of what innovation in the computing arts “really is.”

    That software MAY be “written,” does NOT make software a MERE language. Software is not a literary work, such as a book or a song. Software is not “math” (in the sense that I have provided in the first of three sets of how to think about “math”). Software then is NOT a language (per se) as is often asserted. Software may be composed of a specific language, but is NOT the language itself.

    That software MAY translate mathematical equations, does NOT make software into EITHER math or MathS (again, to reflect on other prior comments of mine).

    It is critical to be inte11ectua11y honest when discussing the patent eligibility of software but (and most unfortunately), THAT is directly against the self-interests of those who do not want innovation protection for this sliver of the computing arts.

  • [Avatar for concerned]
    concerned
    November 14, 2022 06:38 am

    Mr. A — Hi, I’m disabled. Can I receive Social Security benefits?
    Social Security “Expert” — Are you eligible?
    Mr. A — I don’t know.
    Social Security “Expert” — You could be eligible based upon your parents or your spouse.
    Mr. A — How do I find out?
    Social Security “Expert” — I need their information and we need to access the Federal Social Security database to see if you qualify based upon them.

    =========================

    Yet, SSDI benefits are still overlooked by the Social Security Administration.

    1). My claims exclude the above scenario as those SSDI would not be overlooked. The claims do not pre-empt that situation. My claims would not alert a caseworker regarding SSDI already processed.

    2). You are a miracle worker, Curious. Most of the people in my claims are non-verbal

    3). Many of the caseworkers that render the care do not know the difference between SSI and SSDI. Neither do many parents. Off hand, do you know the difference Curious?

    Read the evidence on the record to find out why your statement is such an over characterization and not accurate.

    1). The parents do not know to ask the question. The child probably has not live with the parents in 40 years and the child never worked under Social Security

    2). Divorce. Divorced the wife, divorced the children. The parent in question wants nothing to do with the child or ex-spouse. He does not care, he lives miles away and no contact for years.

    3). Fraud. Can get more household income for others if not declaring the adult child who does not live in the household. And besides, the State is taking care of the non household kid, so goes the thinking to justify the fraud.

    Curious: People in my field really are not the morons you think they are. There is a reason this problem has not been solved for decades.

    Should I tell a pilot just do not hit the ground to avoid a crash?

  • [Avatar for Curious]
    Curious
    November 13, 2022 09:25 pm

    My attorney was arguing in Killian that the underlying business method to solve the problem was not well known, conventional or routine.
    And this is why you both fail. The underlying business method is what the Court believed to be the abstract idea. Consequently, whether it was well-known, conventional, and routine (or not) is not relevant under Step 2B. And this is why they didn’t care about your evidence, because it (at best) merely established that your underlying business method was not well-known, conventional, and routine.

    This is the law as it is being applied. I know B wants to Federal Circuit to ditch 8 years of its own precedent but THAT IS NOT HAPPENING.

    Stop and think for a moment. If my solution was merely cross referencing data bases, why did not millions of working professionals and experts solve this problem since the inception of the program in 1956?
    Because they weren’t too smart? Seriously, how hard was the problem to solve?

    Mr. A — Hi, I’m disabled. Can I receive Social Security benefits?
    Social Security “Expert” — Are you eligible?
    Mr. A — I don’t know.
    Social Security “Expert” — You could be eligible based upon your parents or your spouse.
    Mr. A — How do I find out?
    Social Security “Expert” — I need their information and we need to access the Federal Social Security database to see if you qualify based upon them.

    What more does your inventive process do than create some data records to go along with computerizing what I just described? At most, you are pulling the name from a state database that has information about people receiving treatment for disabilities.

    Here is a little tidbit: It has been over 3 months and the CAFC still has not issued a mandate to the lower courts to follow Killian.
    Hardly interesting. They won’t issue the mandate until they address the Request for Panel Rehearing/Petition for En Banc Rehearing.

  • [Avatar for Pro Say]
    Pro Say
    November 13, 2022 09:54 am

    The repulsive, abhorrent bottom line is this:

    The devil that we know (Mayo / Alice) is better for American innovation . . . than the devil that we don’t (this bill or anything like it).

  • [Avatar for concerned]
    concerned
    November 13, 2022 06:56 am

    Lab Jedor:

    Forget the computer. My attorney was arguing in Killian that the underlying business method to solve the problem was not well known, conventional or routine. The business method just happened to use a computer to track the parent, not the beneficiary. And no one, in ANY field of commence, tracks the parent of an adult, which is the solution to the problem (not the computer). No s102 or s103 rejections, yet well known under s101?

    Stop and think for a moment. If my solution was merely cross referencing data bases, why did not millions of working professionals and experts solve this problem since the inception of the program in 1956?

    In fact, evidence is on record revealed experts with 25 and 35 years of experience could not not solve the problem. One of the expert said the Social Security Administration could not solve the problem and that organization has the databases. Of course, the other side has been dodging the evidence because it causes a problem in logic with their rejections, so the PTAB switched to another rejection that is not true.

    The CAFC sees computer and rejects. If a computer was hooked to a shoebox and cured cancer, the patent application would be rejected.

    Everyone on the other side said I met the law as it had been written, just not their version of the law. Then tell Congress we do not need them anymore to write laws, we have judges doing it in their own image.

    Can anyone image being in any court of law, except a patent court, and being told you follow the law but still are found guilty based on no evidence from the other side, rejecting all of your evidence, illogical statements and statements that are no true on the surface?
    My attorney is arguing due process violations also.

    Here is a little tidbit: It has been over 3 months and the CAFC still has not issued a mandate to the lower courts to follow Killian. Interesting. I had a boss once that I advised not to send out a memo that eventually blew up in his face. He never did rescind the memo even though the requested direction of the memo was no longer followed.

  • [Avatar for Lab Jedor]
    Lab Jedor
    November 12, 2022 11:52 pm

    Merely (see several Dictionaries)= only; purely; solely; simply; just; nothing more than.
    The context for Tillis being (I guess) trying to exclude: only; purely; solely; simply; just; nothing more than doing what computers do. Simply, (merely) reflecting a misunderstanding by a non-technologist what computers are. That is the language you get from a politician who is repeating what interest groups tell him what the problem is with computer implemented inventions.

    If you don’t really know what computers do, you may try to condense it to: well they merely , do nothing more than storing and executing. But language means something, at least in technology. Storing is clearly different from retrieving. And executing is different again (otherwise you wouldn’t make a distinction between storing and executing.) And retrieving is not mentioned at all by Tillis.

    I would go further and say that according to that language a device that only “executes” without the AND clause of storing falls outside the “merely” restriction. So, a claimed device that is a combinational circuit, does not do storing and fails to do “merely storing and executing.”

    Now, we all can discuss what was intended by Tillis language. But it is imprecise, sloppy, incorrect and technologically unworkable language. I have no idea what it is technically intended to mean. If taken literally, it is unworkable. If it has to be interpreted we clearly will be in trouble as much as with Alice.

    It is very interesting to have this post almost simultaneously with the one on Mathematics. I would say that the machine code for an FFT is as technical as the machine code for the Killian invention. It does not matter for the computer what it does. For the computer there is no intent. A computer is a machine. No more and no less. The intent comes from the inventor. For that reason a computer implemented invention should be patent eligible.

    I am not sure that it would solve the problem for Killian. Because technically, obtaining data from different databases (ignoring the intent and meaning of databases) is of course well known. Claims that were considered patent ineligible based on intent may become eligible as being technical only to be rejected as being technically anticipated or obvious.

    Computer programs that compute a DFT (Discrete Fourier Transform) or an FFT (Fast Fourier Transform) may currently both be patent ineligible as being directed to an abstract idea. (though the use of FFT is patent eligible, as far as I could check). The FFT should be patent eligible because it has a dataflow that improves the speed of computation of the DFT. The FFT is a technical solution of the DFT.

    However, the DFT and FFT as computer operations are “merely” retrieving, executing and storing steps. And would be patent ineligible even without considering it a mathematical algorithm, under the new Tillis rule. So Tillis would not solve the “abstract idea” mess and it would not solve the Mathematics issue for computer implemented inventions.

  • [Avatar for Anon]
    Anon
    November 12, 2022 04:33 pm

    “Merely” does not mean “only.”

    “Merely” is eminently open to Gisting – and is the death knell of all innovation in the computing arts.

  • [Avatar for Lab Jedor]
    Lab Jedor
    November 12, 2022 11:26 am

    “… beyond merely storing and executing.” Does Tillis really mean this? “Merely” means “only.” Computers generally also perform “retrieving.” Computers in that regard perform at least one more step (the retrieving) and thus perform “beyond merely storing and executing.”

  • [Avatar for concerned]
    concerned
    November 12, 2022 04:13 am

    Curious:

    The CAFC said my process can be done mentally. I challenged that statement as being not true by suggesting calling the organization that has the data.

    Whether the process of getting consent waived is technical or not, the CAFC statement is not true. Does a court have to rely on false statements to rule against an inventor? Should a court be allowed to issue false statements?

    How the courts are applying the law is a derivative void of integrity to reach an end result. I GET how the courts are applying the law, that is my problem and it should be a lot of other people’s problem also.

    As Mr. Quinn says, why are more people not standing up to this madness?

  • [Avatar for Curious]
    Curious
    November 11, 2022 04:23 pm

    One man’s guaranteed-to-be-washed-away sandcastle is another man’s armor-plated windmill.
    Comparing non-equivalents things?

    The Supreme Court’s case law is the armor-plated windmill. How many times have people asked the Supreme Court for clarification since Alice? How many petitions for cert have been denied? Let’s put the number at 5 per year and that gets us to about 40 times the Supreme Court has ignored please for clarification (there is a real number out there, but I don’t have the time to generate it). All the good arguments have been tried. Moreover, the Supreme Court has essentially stated that even if you have a good argument they don’t care because Congress has blessed their interpretation via statutory stare decisis. Tilt at the windmill all you want, the Supreme Court has make it abundantly clear that they don’t care that their case law is lousy.

    The “sandcastle” on the other hand, is a Congressional fix to 101. From 1952 to Bilski/Mayo/Alice, very few patents were invalidated under 101. Sure, the Supreme Court eventually chipped away at the language from 1952, but it held up for a very long time. As such, I would rather have replacement statute that holds up for 40+ years than none at all.

    Call the Social Security Administration right now. Tell them you want someone’s personal data. That you have no written consent to release, you are doing from your mind mentally. Report back to this forum your results.
    And this is why you fail (miserably) at understanding how the law is being applied. Extremely few people (including the authors of this article) would consider obtaining consent to access data to be an inherently technical process. Providing consent to access data was performed (in a very base form), tens of thousands of years ago. Absent far more technical details (none of which are in your claims), providing consent isn’t going to help the Killian claims with regard to how 101 is being applied today.

  • [Avatar for Pattorney]
    Pattorney
    November 11, 2022 01:37 pm

    Ҥ 101. Inventions patentable
    Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” published with a clear statement that it overturns Alice, Bilksi, etc. i.e., no two part test, no exceptions. “Any” means any as it was intended. Worked pretty well for 50+ years. We should go back to it and start protecting innovation again.

  • [Avatar for concerned]
    concerned
    November 11, 2022 12:07 pm

    Killian’s claims can only be done in one’s mind because a court said as much, not because it so called fact. The evidence on file, which to date has not been acknowledge, proves the claims cannot be done mentally.

    Nobody on Earth can do my claims in their mind, a third party cannot waive consent mentally or notify the caseworker mentally.

    I have a $500,000 challenge offered to anyone who thinks they can do my claims solely in their mind. And nobody as accepted the challenge.

    Call the Social Security Administration right now. Tell them you want someone’s personal data. That you have no written consent to release, you are doing from your mind mentally. Report back to this forum your results.

  • [Avatar for Anon]
    Anon
    November 11, 2022 11:24 am

    Just because every sandcastle is doomed to be washed away by the waves, it doesn’t mean we should stop building them

    One man’s guaranteed-to-be-washed-away sandcastle is another man’s armor-plated windmill.

    (Apparently)

  • [Avatar for Curious]
    Curious
    November 11, 2022 10:14 am

    The authors ignore the caselaw fact that the Supreme Court does not care about the intent of Congress when it comes to fundamental patent laws.
    I would disagree. The Supreme Court is not an unchanging, monolithic entity. The best example of SCOTUS listening to Congress might be in Diamond v. Chakrabarty. With that in mind, we had decades of relative peace regarding 101 before Benson, and it wasn’t until Bilski that things started to go downhill fast. Just because every sandcastle is doomed to be washed away by the waves, it doesn’t mean we should stop building them. We build them and have some transitory period of time during which to enjoy them. Yeah – maybe we have to rebuild it in the future, but a temporary sandcastle is better than no sandcastle at all.

    So poorly written efforts, such as Tillis’ bill, are doomed to failure because they add no clarity (Tillis could make his bill completely useless by adding “Something is technological if it is not abstract”.
    I agree that the language in the Tillis bill is unworkable. It is a mashup of a lot of the current language used by the courts. However, my recollection is that this bill was called a starting point – and importantly not the end point. In other words, the intent of this proposal was to break the ice and start a conversation.

    101 should be reduced to one test: “An invention is eligibility for patentability if it is useful in commerce, and as long as it satisfies the rest of 35 USC.”
    That is an improvement but I think that it goes too far for a bill that is going to require some compromise to get through. Ideally, a rewriting of 101 should not stray too far from the original 101 – otherwise it gives the courts too much leeway for interpretation and explicitly limit the exceptions to what is described in the statute. Personally, I would be in favor of getting rid of all exceptions to 101 but such a proposal isn’t going to be supported. At least the following would likely need to be identified as exceptions: (i) unmodified natural processes/products, (ii) human genes per se (i.e., a person should not be sued for having particular human genes, (iii) mental processes claimed as such (absent from such a definition would be processes that, as claimed, are performed using something other than the human mind).

    Getting rid of 101 allows for the full patentability of art, since art can be novel, unobvious (whatever the fck that means) and enabled.
    I don’t think there is a need or desire for this. The art itself receives better protection under copyright law. The methodologies/technologies used to create the art are already capable of being protected by patents. I don’t think this needs to be addressed to address the current problems with 101.

    Every proposed 101 “improvement” (remember’s Berman’s circular definition of ‘business’) just adds more undefined terms for courts to abuse.
    Then get a statute that doesn’t add more undefined terms. I recall someone presented a proposal on IP watchdog a couple months ago that proposed to eliminate/reduce these undefined terms.

    How about instead, some articles on finally applying Due Process Public Notice to fundamental undefined patent terms, something rarely discussed in decades?
    Those fundamental undefined patent terms are products of Congress and the Court. It is up to them to define those terms, and unfortunately, they have no interest in doing so. Public Notice is a creature of the Executive Branch, which has the least say in the matter.

  • [Avatar for concerned]
    concerned
    November 11, 2022 10:08 am

    Greg A.:

    Ok, are you really my attorney B?

    You write and sound just like them. It is nice that others realize that inventors are getting the shaft, it is obvious. For some hidden reason, nothing is being done about it by the authorities.

  • [Avatar for Yenrab]
    Yenrab
    November 11, 2022 09:14 am

    While we are at it, why not draw up a proposed Constitutional Amendment concerning Clause Eight, to clarify just what is meant by “authors and inventors” and what is included in “writings and discoveries”?

  • [Avatar for Greg Aharonian]
    Greg Aharonian
    November 11, 2022 09:04 am

    The authors ignore the caselaw fact that the Supreme Court does not care about the intent of Congress when it comes to fundamental patent laws. I remind you youngsters of Cuno, the Supreme Court’s horrible decision in 1941 that created the “flash of creative genius” test for what was then obviousness determinations. The decision was so horrible, that in 1952, Congress included at the end of 35 USC 103 a clause to nullify Cuno – “Patentability shall not be negated by the manner in which the invention was made.”

    Did the Supreme Court respect this Congressional intent, as they are bound to by the Constitution? Of course not. They gradually started weakening this clause, until they resurrected Cuno with KSR, though replacing “flash of genius” with KSR’s equally undefined “predictable” (unpredictability requiring … a flash of genius).

    The Supreme Court does not care about Congressional intent when it comes to the fundamentals of patent law. They do not care about all of the Constitution (the undefined “abstract” violates the Constitution’s Due Process Public Notice requirement). They do not care about science and engineering who are the experts on issues such as “technology” and “abstract software” and reality. They do not care about amicus briefs, unless it is backed by financially powerful interests.

    So poorly written efforts, such as Tillis’ bill, are doomed to failure because they add no clarity (Tillis could make his bill completely useless by adding “Something is technological if it is not abstract”.

    A new version of 101, written in collaboration with science, engineers, linguists and other experts in technology terminology (a first time that ever happened) would be a better initiative, but also doomed to failure because the Supreme Court (and much of the CAFC) has no respect for the separation of powers. The courts will just create new, stupid, language to nullify the new statute whether or not their language is rational, Constitutional or coherent.

    101 should be reduced to one test: “An invention is eligibility for patentability if it is useful in commerce, and as long as it satisfies the rest of 35 USC.” There is no invalid patent that I can’t objectively kill under 35 USC 102, 103 and 112. There is no need (except if you are a lazy twit) to need any tools from 101. And frankly, I would even support getting rid of this “useful in commerce” clause, and delete 101, since much of the success of current US commerce is based on the useless (which is why Nasdaq is plummeting as the Fed removes its monetary ‘cocaine’).

    There is a more fundamental problem with patentability that goes unstated, as seen in Tillis’ language. The world of art and entertainment has become completely industrialized with engineered products. Increasingly, the foundations of copyright law are false. There is little difference in commerce between Disney and Apple. Getting rid of 101 allows for the full patentability of art, since art can be novel, unobvious (whatever the fck that means) and enabled.

    The price to cure the language of 101 is to allow the patentability of music and movies. Since Congress will always be bribed to never allow that to happen, there is no ability to fix 101 “just for” patents.

    I have been watching this nonsense for 25 years. Every proposed 101 “improvement” (remember’s Berman’s circular definition of ‘business’) just adds more undefined terms for courts to abuse. Every new argument in a 101 amicus brief is just ignored.

    The current Catholic Supreme Court (and it is) view on patents is based on one Old Testament phrase, Job 38:11 — “THIS FAR YOU SHALL COME, BUT NO FARTHER. THIS IS WHERE YOUR ABSTRACT INVENTION MUST STOP.” (OK, I edited it a bit, but it does sum up 101 caselaw from Benson onwards).

    And I question the sincerity of 101 reformers, since most inventors lose money on fighting idiotic 103 rejections, than on 101 rejections. Yet, there never are proposals to clean up all of the undefined terms of 103: “obvious”, “skill”, “art”, “ordinary”, etc.

    So can the managers of IPWatchdog consider a ban on articles of 101 reform? How about instead, some articles on finally applying Due Process Public Notice to fundamental undefined patent terms, something rarely discussed in decades?

  • [Avatar for Curious]
    Curious
    November 11, 2022 12:04 am

    Section 101 must — must — be removed from the patent code.
    Absolutely not. That just allows the judges to move into the void left by its absence. Rather, 101 must be rewritten to explicitly define the exceptions or to explicitly state that there are no exceptions.

  • [Avatar for Pro Say]
    Pro Say
    November 10, 2022 03:35 pm

    Tillis Bill Would Open a Pandora’s Box of New Patent Killers

    There. Fixed.

    Sorry, but the author’s arguments for this bill fall as flat as does the bill itself; including the fatal flaw of a lack of all-stakeholders (including the anti-patent judges on the CAFC)-are-in-agreement-now-and-forever definition of “technological” and “non-technological.”

    The fact is that the addition of more verbiage — including the bill’s verbiage — will do nothing but open a Pandora’s box of new patent killers.

    Patent killers our very own SCOTUS and CAFC will have no compunction wielding.

    For no amount of mere words will ever be sufficient . . . to overcome those judges hellbent on destroying patents.

    There is but one answer, one solution, one way forward for American innovation:

    Section 101 must — must — be removed from the patent code.

    This is the one and only cure for the innovation cancer that SCOTUS birthed and the CAFC then metastasized.

    The ever-powerful Sections 102, 103, and 112 will continue to provide the same iron-clad protection against undeserving patents that they have provided for the last 70 years.

    Senator Tillis’ and his colleagues valiant, principled, well-intentioned efforts are to be commended, but they won’t work.

    They simply will not work.

  • [Avatar for Paul Morinville]
    Paul Morinville
    November 10, 2022 01:57 pm

    This shouldn’t become law. Not only are the terms left for the courts to butcher, but what does this mean…this mean? …. “embodied in a machine or manufacture, unless that machine or manufacture is recited in a patent claim without integrating, beyond merely storing and executing, the process steps that the machine or manufacture performs”?

    That cannot be made to make sense. Define it.

    Is code running on a computer that is not somehow integrated with a machine or manufacture eligible?

    As I read it the answer is no. That means things like 3D printers are eligible and things like artificial intelligence are not.

    This is wildly wrongheaded lawmaking.

    The intent is to fix 101 for Bio in exchange for destroying it for software. Big Tech is FOR this legislation because the Patent system will remain destroyed for another ten years as the courts define the mumbo-jumbo left them by congress.

  • [Avatar for Model 101]
    Model 101
    November 10, 2022 01:14 pm

    The bill needs to explicitly say something about RETROACTIVE application for all patents.

    The bill also needs to say if there was no due process afforded to the inventor he should get his day in court to prove his case.

    The bill is as much about clarity as it is about crooked judges.

  • [Avatar for Anonymous]
    Anonymous
    November 10, 2022 01:03 pm

    “(2) processes
    (a) that are non-technological, economic, financial, business, social, cultural, or artistic,
    (b) that can be performed solely in the human mind, or
    (c) that occur in nature independent of human activity”

    This bill should be dead on arrival, because no one can define what is or is not in the class “non-technological, economic, financial, business, social, cultural, or artistic.” It is just as bad or worse than an undefinable “abstract idea.”

    Patent law demands clarity. Why doesn’t Tillis understand that? The Tillis bill would merely bring about another decade of confusion and ambiguity in the law, while innovation suffers.

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