Killian Petitions Supreme Court to End Alice/Mayo

“The drafters of the 1952 Patent Act knew what they were doing, and it is not within the authority of Article III courts to rewrite the Patent Law in a way that bypasses the safeguards placed into the law by Congress.” – Killian petition

KillianJeffrey Killian yesterday submitted a petition for writ of certiorari to the United States Supreme Court asking the Court to provide clear guidance on or else throw out the Alice/Mayo test for patent eligibility. Killian is involved in an ongoing patent dispute in which the Patent Trial and Appeal Board (PTAB) rejected claims of his U.S. Patent Application No. 14/450,042 under Section 101. The U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed the ruling in August 2022.

In the petition, Killian claims that the U.S. Patent and Trademark Office (USPTO) violated Supreme Court precedent by ruling the patent application ineligible under the Alice/Mayo test.

“There can be no legitimate reliance on a test that contravenes congressional intent, a comprehensive statutory framework, and constitutional principles. Alice/Mayo is a failed experiment,” concluded Killian in his petition.

The petition presents the Supreme Court with two questions related to the Alice/Mayo test. First, have departures from Supreme Court precedent on Alice/Mayo by the CAFC allowed the USPTO to violate Title 5 of the United States Code and the Due Process Clause of the Fifth Amendment of the Constitution? Secondly, Killian asked, do exceptions made by Article III courts of Title 35 U.S.C. § 101 exceed the court’s constitutional authority?

Killian’s attorney, Burman Y. Mathis, has previously published his analysis of the case on IPWatchdog.

CAFC: Claims Fail Alice/Mayo; Killian’s Beef is with SCOTUS

In a precedential opinion filed on August 23, 2022, the CAFC said Killian’s claims failed to meet the threshold test of Alice/Mayo. The ‘042 patent application is directed to “a computerized system and method for determining eligibility for social security disability insurance benefits (SSDI) through a computer network.”

The CAFC judges ruled the claims did not meet the first step of the Alice/Mayo test because they cover the abstract concept of “generic recitations of generic computer functionalities.” As for the second step, the court found no inventive concept and said, “the claims here do not detail how the computer should go about determining eligibility for benefits.”

In his appeal, Killian argued the Alice/Mayo test is poorly articulated and vague, and said that PTAB decisions that find a patent ineligible should be ruled “arbitrary and capricious” under the Administrative Procedure Act (APA).

But the CAFC said that Killian’s argument should be made to the Supreme Court and not the PTAB or CAFC, who are simply applying Supreme Court precedent.

Killian’s Petition

Now, in the SCOTUS petition, Killian outlines his argument in three parts. Firstly, Killian claims, “the lower courts have rendered step one of Alice/Mayo capricious” and that step one of the Alice/Mayo test can be satisfied via “nothing more than a bald assertion that defies evidence, common-sense analysis, and scientific principles.”

Secondly, Killian says the term “inventive concept” in step two of Alice/Mayo “is capricious and this capriciousness cannot be remedied.” In Killian’s view, the term is a rebranding of “invention,” which he argues the Court has acknowledged to be meaningless on three separate occasions.

The final argument is that the Alice/Mayo test should be set aside based on the Supreme Court’s analysis in Dobbs v. Jackson Women’s Health Organization, which Killian argues “demands that each judicially-created exception to patent eligibility be set aside.”

Due Process

Returning to the questions Killian posed at the beginning of the petition, he argues that the manner in which the USPTO applies the Alice/Mayo test violates statutory due process and the Fifth Amendment due process law. According to Killian, the test violates due process “by depriving patent applicants of a property right using nonexistent definitions and factual finding without evidence.”

While the CAFC wrote that Killian did not argue and could not show that the Alice/Mayo standard was “void-for vagueness”, the petition explains that is not the case he is making; rather, he is arguing that the term “inventive concept” at Alice step two is meaningless.

“Respectfully, it is not necessary to argue void-for-vagueness to recognize that a decision violates due process of law,” the petition asserts. “The void-for-vagueness doctrine was derived from the Fifth and Fourteenth Amendments, not the other way around.” Killian adds that certiorari is necessary because the CAFC decision has given the USPTO license to violate due process under the guise of Alice/Mayo.

Exceeding the Court’s Constitutional Authority

As to the second question presented, the petition argues “nowhere under the Constitution or under § 101 or any section of Title 35 are the courts granted authority to create exceptions to patent eligibility.”

It adds that, despite the lack of empowering language in these documents, the courts have created numerous exceptions to patent eligibility.

“However, such exceptions violate congressional prerogative and ignore the express limits Congress actually created under, inter alia, Title 35 U.S.C. § 102 of the Patent Act of 1952,” wrote Killian.

While abstract ideas should not be able to be patented, it isn’t the Alice/Mayo test that should govern this analysis Rather, abstract ideas “fail the written description and enablement clauses of 35 U.S.C. § 112(b),” the petition explains. “That is, the drafters of the 1952 Patent Act knew what they were doing, and it is not within the authority of Article III courts to rewrite the Patent Law in a way that bypasses the safeguards placed into the law by Congress,” it adds.

Killian advocates for this standard to be applied so that the patent law can work as Congress originally designed it. He continues, “unfortunately, rather than adhering to congressional intent, Article III courts have destroyed Congress’s intended scope of patent eligibility by importing the exact same ‘invention’ requirement that Congress excluded.”

 Image Source: Deposit Photos

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71 comments so far.

  • [Avatar for Curious]
    Curious
    May 8, 2023 01:04 pm

    You stated: “You had your evidence addressed. And the Court said that there was nothing to it.”
    This is the lie I called you out on. Believe it or not people can read what you posted earlier.

    This is what the Court wrote:
    Finally, while Mr. Killian refers, rather obliquely, to fifty-five documents allegedly presented to the examiner and the Board, Mr. Killian does not explain on appeal what specifically these fifty-five documents show, nor did he include them in the joint appendix. In his opening brief, Mr. Killian said about these documents only that “there are fifty-five separate documents of unquestioned veracity and efficacy entered into evidence that support Appellant’s position.” Appellant’s Br. 12. We find that Mr. Killian forfeited any argument on appeal based on those fifty-five documents by failing to present anything more than a conclusory, skeletal argument.
    Your evidence was considered and discarded. On multiple occasions I have asked both you and Killian to repeat what you’ve argued about this evidence. However, you keep demurring. How about you actually explain to everyone what this evidence means. Just cut and paste the arguments from your Appeal Brief.
    You’re so clueless on Alice/Mayo I doubt you’ve ever has a successful negotiation with an examiner on an Alice/Mayo rejection.
    Yeah … everyone has gotten it wrong on Alice/Mayo except for you. Must be frustrating living in a world when no one understands things as well as you do.

    Also, tell me again about how the APA applies to the Federal Circuit. This is always one of my favorite bedtime stories.

  • [Avatar for B]
    B
    May 7, 2023 11:24 pm

    @ Curious “LOL. You constantly exhibit this amazing inability to comprehend what I’ve written.”

    You keep getting caught in lie all the time these days.

    “My statement that ‘[t]he Federal Circuit and SCOTUS haven’t deemed it necessary to explicitly define those means’ is an unveiled criticism of them.'”

    You stated: “You had your evidence addressed. And the Court said that there was nothing to it.”

    This is the lie I called you out on. Believe it or not people can read what you posted earlier.

    You’re so clueless on Alice/Mayo I doubt you’ve ever has a successful negotiation with an examiner on an Alice/Mayo rejection.

  • [Avatar for Concerned]
    Concerned
    May 5, 2023 06:33 pm

    I’m one that probably is being schooled as to why I am not an attorney.
    How does anyone tolerate this type of behavior?

    When the rest of you get “one” cert with SCOTUS on s101, you will have something to speak about.

    Have fun folks.

  • [Avatar for Breeze]
    Breeze
    May 5, 2023 02:45 pm

    “Favorite, most amusing, and educational all in one!!”

    Some people in the conversation are getting schooled. I’ll let you guess which ones.

  • [Avatar for Curious]
    Curious
    May 5, 2023 01:45 pm

    You, B and me seem to be in agreement that the courts re-write common words to mean something different. Every attorney in the nation should stand up against practice of legislating from the bench.
    The Courts have been doing this longer than the United States has been in existence. You might as well be shaking your first at the sun for rising in the East every morning.

  • [Avatar for primary examiner]
    primary examiner
    May 5, 2023 11:35 am

    Favorite, most amusing, and educational all in one!!

  • [Avatar for Breeze]
    Breeze
    May 5, 2023 11:19 am

    Just checking in on my favorite back and forth.

    Lulz

  • [Avatar for concerned]
    concerned
    May 5, 2023 05:49 am

    Curious:

    B is not wasting my time or money.

    You, B and me seem to be in agreement that the courts re-write common words to mean something different. Every attorney in the nation should stand up against practice of legislating from the bench.

    There is no rule of law if judges are making up word meaning as they go.

  • [Avatar for Curious]
    Curious
    May 4, 2023 03:41 pm

    This is a TOTAL LIE
    LOL. You constantly exhibit this amazing inability to comprehend what I’ve written. My statement that “[t]he Federal Circuit and SCOTUS haven’t deemed it necessary to explicitly define those means” is an unveiled criticism of them. You then go on to prove me right by stating that they haven’t provided definitions. Yeesh.

    Remember that the PTAB never said Killian’s claims didn’t constitute a practical application or have an inventive concept in the common usage of those terms
    Why does that matter? Why are you getting hung up with the “common usage” of these other legal terms. The courts have completely rewritten the terms “obvious” and “abstract idea” to mean something other than their common usage.

    Unless generic netorks suddenly evolved to comprehend data and have opinions
    I repeated what was in the decision. At no point does Chen say that networks have “opinions.” Moreover, I have presented evidence that those skilled in the art believe that computers can “comprehend” things. Seriously, you get your panties in a knot over the most trivial of things.

    Wow – the Supreme Court said different in Dickenson v. Zurko, but you’d never know that b/c you don’t read case law.
    Then why didn’t you present a pinpoint citation if you are so smart and read the case law. The Administrative Procedure act is 5 USC §§ 551-559 et seq. From Section 551(1): “”agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include -(A) the Congress; (B) the courts of the United States.”
    Did you notice that the courts of the United States are EXPLICITLY EXCLUDED from the term “agency”? I know I’ve cited this to you before, yet you still ignore it. Oh, and I just mentioned your statement to an attorney who has practiced Administrative Law at the Federal level for 20 years (including both private practice and in a Federal Agency) – they laughed. Call up David Boundy and give him your take on that case. He’ll laugh at you as well. And BTW, he worked on that case as an associate.

    The CAFC is broken clown car, and the S.Ct. has no idea how to fix it as was proved in American Axle
    Yet you are still wasting your client money and/or your time by first going to the Federal Circuit and then the Supreme Court for redress. I guess some people just like banging their heads up against a wall.

    BTW, I notice you haven’t addressed my observation that Diehr, Bilski, and Alice Corp do not “refute” mental processes or that Mayo does explicitly refer to mental processes.

  • [Avatar for B]
    B
    May 4, 2023 03:08 pm

    @ Curious ” There are legal meanings [to “practical application” and “inventive concept”]. The Federal Circuit and SCOTUS haven’t deemed it necessary to explicitly define those means.

    This is a TOTAL LIE

    You know how I know? Because not a single decision (In re Killian or any other CAFC or S.Ct. case) has ever attempted to define these terms in a non-circular fashion.

    When challenged, the PTAB never provided any definitions and I’ve tried twice.

    Judge Chen didn’t provide any definitions beyond “significantly more” than the abstract idea. In fact, I’ve demanded definitions from th CAFC twice, and twice they’ve declined to provide anything.

    As Gile Rich once opined “so long as there is ‘invention’ the courst can say it is never enough.” Invention/inventive concept is an old grifty clown show.

    Remember that the PTAB never said Killian’s claims didn’t constitute a practical application or have an inventive concept in the common usage of those terms – which is STUPID b/c “inventive concept” has no plain, ordinary meaning.

    “Basic physics? Your hyperbole is hyperbolic.”

    Unless generic netorks suddenly evolved to comprehend data and have opinions – there is no hyperbole. You must be an idiot to believe Chen’s new theory of abstract.

    “As I have noted before, the CAFC cannot violate the APA.”

    Wow – the Supreme Court said different in Dickenson v. Zurko, but you’d never know that b/c you don’t read case law.

    “You are so naïve, and you clearly don’t understand how the USPTO/Federal Circuit makes rejections based upon the law as the Federal Circuit has set forth.”

    I fully understand how. The CAFC pulls their facts from their hind-parts in violation of Supreme Court case law re abstact (all based on evidence) while prevaricating as needed to avoid the evidence issue.

    Smithkline? Give me a break.

    Yu and Zhang? Taranto emphasized that the patent holders failed to provide evidence while IGNORING the fact that the patent holders had no opportunity to present an iota of evidence.

    How do I know this? I read every document in Donaldo’s ct. plus all the briefing plus I called the attorney representing the patent holders.

    The CAFC is broken clown car, and the S.Ct. has no idea how to fix it as was proved in American Axle.

  • [Avatar for concerned]
    concerned
    May 3, 2023 03:59 pm

    We will never know how great is your work.

    As for me, the one who never learned anything, I retired at a very young age.

    Have fun.

  • [Avatar for Curious]
    Curious
    May 3, 2023 03:22 pm

    You should not worry about in re: Killian. Your applications would never be as bad to warrant such a rejection, not even close to being that bad.
    My clients are very sophisticated so the claims wouldn’t be that bad. Sometimes I’m transferred a case with really bad claims, and then I fix them. I would never go to the Board on lousy claims. It is a waste of time and my client’s money. Your claims have serious, serious problems outside of the 101 issue. I would expect better out of a first year associate.

    Yet you wrote you now have to contend with that decision. But how can that be?
    Because case law isn’t just limited to the set of facts that were the subject of the original decision. If you were a lawyer, you would know not to ask that question.

    Was your remark a poker tell as to the real quality of your work, unknown one?
    LOL. You need to try harder than that.

    Step forward and reveal yourself, oh great and might one. Let us learn from your real life examples.
    I like my anonymity, and I like being able to criticize the USPTO, Federal Circuit, and SCOTUS without worrying about retribution – unlike B who does any current/future clients of his a disfavor with his over-the-top and sometimes unwarranted criticisms of the same.

    My claims are at the bottom 1% and it took the other side 3 separate rejection theories. Wow. that obviously bad and everyone wrote a new theory.
    The Examiner used pre-2019 Patent Eligibility Guidelines language. The Board used post-2019 Patent Eligibility Guidelines language. The Federal Circuit didn’t change anything of the Board’s rejection – rather, they only addressed B’s belated and rather unique arguments. But hey – think whatever you want if it gets you through the day. You’ve shown a remarkable ability to ignore reality in your comments, so why stop now?

    I see you didn’t disagree with my characterization of your invention.

    I see you haven’t told me what your evidence is supposed to prove.

    I see you haven’t shown me where “consent” is in your claims.

  • [Avatar for concerned]
    concerned
    May 3, 2023 05:57 am

    You dodged the “great” question.

    You should not worry about in re: Killian. Your applications would never be as bad to warrant such a rejection, not even close to being that bad.

    Yet you wrote you now have to contend with that decision. But how can that be? Was your remark a poker tell as to the real quality of your work, unknown one? Step forward and reveal yourself, oh great and might one. Let us learn from your real life examples.

    My claims are at the bottom 1% and it took the other side 3 separate rejection theories. Wow. that obviously bad and everyone wrote a new theory.

  • [Avatar for Curious]
    Curious
    May 2, 2023 08:56 pm

    My first attorney thought it was good evidence and so does the second.
    LOL. Is your first attorney the same one that wrote those dreadful claims? Can you cite a single Federal Circuit decision in which applicant (or patentee)-supplied evidence was used to overcome a 101 rejection?

    You also think all disability attorneys are stupid, you wrote the same on another thread.
    You exaggerate. But then again, that is your modus operandi. What is your invention beyond the following?

    Q: Does a person receive treatment for developmental disabilities/mental illness?
    A: Let’s look at a State database to see if they do or not. If yes, that information is stored in an electronic data record.
    Q: Assuming the answer is yes, and based upon this person not already receiving SSDI adult child benefits, would this person be eligible to receive SSDI adult child benefits based upon their spouse or parents?
    A: If yes, you indicate eligibility in the electronic data record.

    That’s your invention. The rest is just basic data retrieval and storage. The only reason why you haven’t gotten an art rejection is that the examiner was too lazy to put one together – they probably figured there was no way that these claims would get past 101 so they didn’t put a lot of work into it. Seriously, how did people know that could receive SSDI adult child benefits in the past? I’m sure some did. To say that this is exceedingly simple concept is an understatement.

    This was never a close case regarding 101. While the Federal Circuit’s case law makes knowing the location of the line that separates patent eligible from patent ineligible very difficult to know, these claims were never close to that line no matter where it was drawn. Of the hundreds and hundreds and hundreds of applications that I have handled post-Alice, these claims are in the bottom 1% in terms of being patent eligibility.

    Are you really as great as you lead us to believe?
    Are you really as great a glutton for punishment as your writings indicate?

  • [Avatar for concerned]
    concerned
    May 2, 2023 02:42 pm

    My first attorney thought it was good evidence and so does the second.

    The USPTO, PTAB and CAFC did not address it, so we do not know their opinion.

    You think it is bad evidence.

    You also think all disability attorneys are stupid, you wrote the same on another thread.

    Are you really as great as you lead us to believe?

  • [Avatar for Curious]
    Curious
    May 2, 2023 02:28 pm

    There is no legal meaning to “practical application” or “inventive concept.”
    There are legal meanings. The Federal Circuit and SCOTUS haven’t deemed it necessary to explicitly define those means. Again, this is intentional on their part. Easier to bend a nose of wax than it is to bend of nose of iron.

    And “mental processes” was refuted in Diehr, Bilski, and Alice Corp
    The majority opinion in Diehr makes no mention of mental processes. Kennedy’s opinion in Bilski makes no mention of a mental process aside from recognizing that “The Board of Patent Appeals and Interferences affirmed, concluding that the application involved only mental steps that do not transform physical matter and was directed to an abstract idea.” Thomas said nothing about mental processes in Alice.

    Perhaps where we differ is on the meaning of the word “refute.” Merriam Webster’s online dictionary defines refute as “to prove wrong by argument or evidence : to show to be false or erroneous” and “to deny the truth or accuracy of.” I find it hard to believe that the Supreme Court refuted mental processes when they didn’t explicitly address the point in either Diehr, Bilski, or Alice. Perhaps you can explain how the Supreme Court can refute a concept that they don’t explicitly mention. And no, dissents don’t count because they aren’t the law.

    That aside, SCOTUS did address mental processes in Mayo v. Prometheus. Specifically, they cited Benson and asserted “Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” You really cannot find a way to work around that one, can you?

    And you asked me earlier where you misrepresented the Supreme Court’s case law. There you go.

    For instance, TC 2100, for example, is 99% “mental steps.”
    I’m not sure what that means. TC 2100 used to have lots of 101 rejections. It has calmed down a bit over the last few years, but I still get them.

    Further, Judge Chen had to change the rejection from “mental steps” to generic computer networks that comprehend data and have opinions.
    The word “opinion” is found in 4 locations within In re Killian. None of those instances involve an allegation that generic computer networks have opinions. As for the “comprehending the meaning of that collected data,” as I noted when this decision first came out, this is merely rewriting the old “analysis” as “comprehending.” From my recollection, you got all bent out of shape because you said that computers cannot comprehend. While I think the language is sloppy, my first hit of searching using “computer” + “comprehends” leads to the article by Honeywell that “How Quantum Can Help Computers Comprehend Words & Conversations Like Humans.” As such, this is evidence that those in the industry deem computers as capable of comprehension. Regardless, this is not a winning point for you.

    I learned that I have enough conviction to stand up and go the distance, win or lose.
    Easy to go the distance when your attorney is working pro bono and you have no negative consequences if you lose. I, on the other hand, have to deal with the negative consequences of In re Killian in my interactions before the USPTO.

    Consent is in the claims.
    Point to the exact claim language that recites this consent. If you cannot, it isn’t in the claims. And neither I nor the Board nor the Federal Circuit cares if it isn’t in the claims. The spec doesn’t count. That point aside, needing consent to access data over a network is routine, conventional, and well-understood – you never want to address that point.

    Words do not have their everyday meaning.
    Most people learn that within a week or so of their first year in Law School.

    Case law does not have to be what Congress has written.
    That’s why there is case law. Case law speaks where Congress is silent. Look up the concept of “statutory stare decisis.” If the Courts add something and if Congress has a chance to react but doesn’t, then they deem Congress to have implicitly accepted what the Courts added.

    Evidence does not matter.
    Bad evidence does not matter. That’s what you have.

    the USPTO, PTAB, Solicitor and CAFC offered no evidence, just their own created case law with no independent third-party confirmation
    They don’t need evidence to establish that networks and common computer processes are routine, conventional, and well-understood. They can take judicial notice of it and/or cite to their past decisions that say the same.

    I think B makes a very good observation about how the rejection reason keeps changing. This is the third rejection change I am aware of. A new review group, a new rejection reason.
    The Board admitted they gave you a new rejection. That’s why it was deemed a new grounds of rejection. That is a very frequent occasion at the Board. Personally, I’m not fond of them, but there is nothing inherently wrong about it. As for the Federal Circuit, they may have expounded a bit on the Board’s rejection, but that is because B introduced new arguments that were not presented before the Board – clearly, the Board cannot address arguments that weren’t made before it. The Federal Circuit could have easily stated that they declined to consider those arguments as being belatedly presented, but they didn’t. The agreed with the Board on the rejection and much of the opinion addressed B’s new arguments.

    I could submit evidence all day long to counter every new rejection theory.
    Maybe, but you would first need to know good evidence from bad evidence. You don’t, so it wouldn’t make a difference.

  • [Avatar for concerned]
    concerned
    May 2, 2023 08:12 am

    I think B makes a very good observation about how the rejection reason keeps changing. This is the third rejection change I am aware of. A new review group, a new rejection reason.

    I could submit evidence all day long to counter every new rejection theory.

    However, if it does not matter, it does not matter. And how many bites at the apple does the other side get? Three? Thirty? Three Hundred?

  • [Avatar for Concerned]
    Concerned
    May 2, 2023 05:03 am

    Additional lessons learned:

    Words do not have their everyday meaning. Are there not words in the English language that Congress could use that mean what they mean?

    Case law does not have to be what Congress has written.

    Evidence does not matter. As much as Curious thinks my evidence is horrible, the USPTO, PTAB, Solicitor and CAFC offered no evidence, just their own created case law with no independent third-party confirmation. So, if case law says Christmas is June 3rd, well it does not matter what the Pope says, pastors think, or calendar makers print.

    And In Re: Killian is the problem here? The patent process does have irony as in case law Alice and Alice in Wonderland. The mad hatter looks perfectly sane.

  • [Avatar for concerned]
    concerned
    May 1, 2023 10:01 pm

    Consent is in the claims. Follow those steps and consent is rendered without the person’s knowledge. Of course the professions in my field knew that fact upon my presentations.

    Read the specs.

  • [Avatar for concerned]
    concerned
    May 1, 2023 09:53 pm

    I learned that case law is fantasy at times and I have enough confidence to put up $500,000 to prove it. No takers.

    I learned that I have enough conviction to stand up and go the distance, win or lose.

  • [Avatar for B]
    B
    May 1, 2023 07:49 pm

    @ Curious “As always, you’ve learned nothing. You make no attempt to understand why the legal meaning of terms differ from their colloquial meaning. . . ”

    There is no legal meaning to “practical application” or “inventive concept.”

    “I’ve explained to you many times how the USPTO evaluates whether a process could be done “mentally.””

    And “mental processes” was refuted in Diehr, Bilski, and Alice Corp.

    Not even the USPTO Solicitor stated differently.

    Read some case law and take a clue. For instance, TC 2100, for example, is 99% “mental steps.”

    Further, Judge Chen had to change the rejection from “mental steps” to generic computer networks that comprehend data and have opinions. Yet, despite the fact you get everything wrong on a daily basis, you lecture others on your expertise.

  • [Avatar for Curious]
    Curious
    May 1, 2023 02:43 pm

    As always, you’ve learned nothing. You make no attempt to understand why the legal meaning of terms differ from their colloquial meaning. I’ve explained to you many times how the USPTO evaluates whether a process could be done “mentally.”

    So, let’s not pretend Marbury and Madison is the be all, end all to what is going on.
    Marbury v. Madison is the be all and end all when it comes to the ability of the judiciary to interpret the law. They interpreted the law to include exceptions. Personally, I think they were wrong. However, once they’ve done so, it is up to Congress to set them straight. You could sit and whine about it in front of the Supreme Court building for the next 50 years, and that isn’t going to change anything.

    Most of us think the Supreme Court made a mistake. However, the Supreme Court doesn’t fix their own mistakes absent something highly-ideological/political as in Dobbs. I’m sorry, this issue isn’t important enough to the masses for the Supreme Court to reverse track on their own precedent.

    However, in that New Hampshire Social Security office, even if you had the people who were overlooked going in, you would not have the computer networks working with you and in combination, all together with my claims, to win the bet and prove mental steps.
    Your problem is that you don’t even understand the law to know why this is a useless exercise. Speaking of useless exercises, let me try to explain to you (once again), why the USPTO deemed your invention to recite a mental process. From the 2019 Patent Eligibility Guidelines, examples of mental processes include “an observation, evaluation, judgment, opinion.” Much of your claim is directed to gathering data and using that data to determine whether one is eligibility for SS disability benefits based upon a family relation (e.g., parents, spouse). This is a CLASSIC example of what the USPTO deems to be a mental process.

    Sure, you have some networks and databases in your claim, but that isn’t enough. If a nominal recitation of hardware was enough, Alice would have come out differently.

    Computers working in the nature state do not give you mental step consent
    Do your claims recite “consent”? I’m looking at your claims right now – they don’t. Regardless, even if they did, obtaining consent to acquire stored data in a network is routine, conventional, and well-understood. As such, it doesn’t help you.

    Finally (and yet again for the umpteenth time) you don’t reproduce B’s specific arguments about the evidence or explicitly identify what the evidence teaches.

    As has happened previously, “Curious” tends to be rather not curious
    As usual, Anon adds nothing to the conversation except criticism from the peanut gallery. Regardless, there is nothing for me to be curious about here. I’m trying to help Concerned understand the law as it is being applied at the USPTO and the Federal Circuit. When was the last time you provided him with anything useful?

    and instead has become entrenched in his viewpoint.
    And what is my viewpoint and how does it differ from your viewpoint?

  • [Avatar for Anon]
    Anon
    May 1, 2023 11:52 am

    As has happened previously, “Curious” tends to be rather not curious, and instead has become entrenched in his viewpoint.

  • [Avatar for Concerned]
    Concerned
    May 1, 2023 05:55 am

    Computer networks, working in combination and as a whole, working with the claims, in combination and as a whole, that renders the first solution ever to this problem since the benefit program origination in 1956.

    An off the shelf computer does not render a solution. Several dedicated computer networks do not render the solution.

    Several dedicated computer networks, working in combination, with dedicated claim language, all working in combination gave the solution.

    Another one of B’s arguments: The claims were dissected and addressed individually, never in combination and the rest of the claims were tossed. All based on an evidence free evaluation with their created case law that often defies logic.

    Curious: I know you are not stupid. You will pass on the challenge. Based on previous conversations, you acknowledged that any person could do my process if they had all the information. Perhaps, if all the information and my claims worked together and in combination. However, in that New Hampshire Social Security office, even if you had the people who were overlooked going in, you would not have the computer networks working with you and in combination, all together with my claims, to win the bet and prove mental steps.

    Computers working in the nature state do not give you mental step consent. If you think it does, pick up a computer at Best Buy on your way to New Hampshire and let’s dance.

  • [Avatar for Concerned]
    Concerned
    May 1, 2023 05:11 am

    B did argue the evidence issue to the CAFC. A complete dodge. And he argued it with the PTAB, a complete dodge. And the solicitor had no rebuttal.

    I noticed you dodge the Judge Michel issue on Marbury v Madison. My point: Per Judge Michel, we are beyond Marbury v. Madison. The judges are off the hook. So, let’s not pretend Marbury and Madison is the be all, end all to what is going on.

    Our point: The USPTO is on record with us as completely dodging the evidence on one of their rejections, nobody held the USPTO accountable. When the USPTO wrote routine, well understood and conventional, I thought that was the novelty argument you were referencing. Regardless, our evidence countered their routine, well understood and conventional statement. No acknowledgement.

    The fact the USPTO dodged the evidence, and nobody held them accountable, carries more weight on our assumption then you are telling us they might the next time consider evidence.

    I know what the evidence states, do you as a non-expert in my field? When I tell my colleagues that you think my process can be done with mental steps, they realize only in your legal fantasy land can it be done with mental steps. Want to put up $500,000 and take my challenge in New Hampshire? I am ready now. We can ask IPWatchdog to cover the event and hold the monies in trust. We both post a $500,000 bond, winner take all. I pick two random Social Security Offices, then once there, I pick two people from a phone book, and you get their pertinent data from a Social Security employee with mental step consent right then and tgere. Let’s dance. Time for you to put up.

    If it is any comfort to you, anybody and everybody who has seen my presentation, experts in my field, have never doubted what my process can do. Let’s see your mental step presentation, live in New Hampshire. You might take $500,000 from me.

  • [Avatar for Curious]
    Curious
    April 30, 2023 06:52 pm

    Curious: Judge Michel is an attorney. Are you going to school him on Marbury v. Madison?
    I’m sure he both understands Marbury v. Madison and relied upon it (explicitly or not) during his career as a judge.

    When the PTAB switched theories: What makes you think the USPTO would address the same evidence that has been completely ignored just because the PTAB changed rejection theory?
    Did you try? No. So how would you know? In a new grounds of rejection, your prior arguments/evidence usually gets set aside as being moot regarding the new grounds. If you wanted to reargue that evidence again, you were free to do so. However, for reasons I have extensively stated, that evidence isn’t persuasive.

    That same evidence would prove my process cannot in reality be performed by mental steps.
    That’s not what your evidence says. If you disagree, cite the particular piece of evidence and where that evidence supports your argument.

    The USPTO should address all evidence and state why the evidence is pertinent or not.
    Not once have you even acknowledged my explanation as to why your evidence is useless.

    The junior examiner told my first attorney and me three times that he saw patentability.
    Junior examiners are junior for a reason. That examiner could not speak for the primary (i.e., the one who wrote the Examiner’s Answer), and it is the primary whose responsibility it is to allow the application. Also, there is a difference between patent eligibility and patentability.

    this explanation hits home as to why the USPTO did not address evidence better than a default to an explanation by a third-party attorney on a blog
    This explanation fits for an inventor inclined to think that there is some conspiracy to deny him a patent. This “third-party attorney on a blog” has prosecuted a thousand more patent applications than you’ve ever seen, and have gotten dozens and dozens of 101 rejections overcome. The result of the appeal to both the PTAB and Federal Circuit should have been very predictable for any experienced attorney.

    The USPTO is arguing novelty. So we submit 55 documents that address novelty, the USPTO rejection theory at the time. No acknowledgement, no response upon numerous attempts.
    You didn’t have a novelty rejection. Do you even understand what you are saying?

    What the PTAB did not write is that the USPTO WILL ADDRESS ANY EVIDENCE PERTAINING TO MENTAL STEPS, currently on record or to be submitted.
    There was no evidence about “MENTAL STEPS.” Seriously, you don’t even know what your evidence says.

    What is the point besides wasting more of my time and legal fees which I was paying to the first attorney?
    And you think you had a better shot try to DRASTICALLY change the law with a very inexperienced appellate attorney on a shoestring budget. Again, delusional is an apt word.

    We appealed to CAFC. I still do not see why the CAFC could not remand and order the USPTO, for the first time, to address the inventor’s evidence under whatever THEIR rejection theory is at this time.
    Because your evidence is no better than a bunch of previously-issued patents selected from random. Regardless, why don’t you cut and paste’s B’s exact arguments in your brief to the Federal Circuit regarding the evidence. I don’t have his brief so I don’t know.

    Please do not act like the USPTO is completely blameless or that all of a sudden the USPTO would look at evidence.
    I’ve never said the USPTO is blameless. However, how the USPTO screws over applicants is well known. With that in mind, I blame a client who refuses to learn anything about the law and an attorney that thinks making old and/or bad arguments are going to result in new and/or better results. Experienced attorneys with good fact patterns lose on this issue all the time. You had neither.

  • [Avatar for concerned]
    concerned
    April 30, 2023 09:24 am

    The USPTO is arguing novelty. So we submit 55 documents that address novelty, the USPTO rejection theory at the time. No acknowledgement, no response upon numerous attempts.

    The PTAB switches rejection theory and tells us we can now pursue the application under the new rejection theory of mental steps. What the PTAB did not write is that the USPTO WILL ADDRESS ANY EVIDENCE PERTAINING TO MENTAL STEPS, currently on record or to be submitted.

    So we could go back to the USPTO, argue and point to the same evidence that would show mental steps cannot do my process with an Agency that already has a track record of ignoring evidence consistent with THEIR rejection theory currently in place and now put in place. What is the point besides wasting more of my time and legal fees which I was paying to the first attorney? There was no indication evidence mattered up to this point.

    We appealed to CAFC. I still do not see why the CAFC could not remand and order the USPTO, for the first time, to address the inventor’s evidence under whatever THEIR rejection theory is at this time.

    Curious: Please do not act like the USPTO is completely blameless or that all of a sudden the USPTO would look at evidence. Based on what?

  • [Avatar for Concerned]
    Concerned
    April 30, 2023 06:01 am

    The Hon. Paul Michel is a retired Chief Judge, CAFC who pens on this forum that judges are making law in their own image.

    Curious: Judge Michel is an attorney. Are you going to school him on Marbury v. Madison?

    When the PTAB switched theories: What makes you think the USPTO would address the same evidence that has been completely ignored just because the PTAB changed rejection theory? That same evidence would prove my process cannot in reality be performed by mental steps. Oh sure, judges make caselaw to support decisions where anything can happen in fiction, but that does not mean it can happen in reality.

    Judges should not make evidence free decisions; judge are not all knowing. The USPTO should address all evidence and state why the evidence is pertinent or not. Whether you are correct is irrelevant. The MPEP gives me certain rights that cannot be silently ignored.

    The junior examiner told my first attorney and me three times that he saw patentability. He said the higher ups were blocking the patent grant. Forget the legalese, this explanation hits home as to why the USPTO did not address evidence better than a default to an explanation by a third-party attorney on a blog, which somehow, I am supposed to accept as proper legal protocol.

  • [Avatar for concerned]
    concerned
    April 29, 2023 10:45 pm

    Curious: I only to be told once by the USPTO or PTAB.

    That I was owed and the USPTO and PTAB never wrote a word.

    You do not speak for those organizations, nor should anyone get the reason, right or wrong reason, from a third party attorney on a blog.

    Common people are not lawyers, but they are fed up with what judges do. Judges are not suppose to write law and run the country. We did not elect judges to represent us.

    A person does not need to be an attorney to understand that view.

  • [Avatar for Curious]
    Curious
    April 29, 2023 10:02 pm

    1) A judge should never be able to tell a person that you met the law as written by Congress but did not meet the judges’ case law
    It is called Marbury v. Madison. It is a fundamental case in US jurisprudence. This is why your “common people” are not lawyers.

    2). To never address the evidence, good or bad evidence, and simply use the judges own created case law as THE evidence.
    I’ve told you time and time again why you evidence isn’t any good. You could cite the 15th edition of the Encyclopedia Britanica – all 32 volumes and 32,640 pages – as evidence that no one has ever come up with your invention before and consequently your claims are not well-understood, routine, and conventional, and if the PTAB or CAFC didn’t cite it, it isn’t a big deal. They aren’t going to comment on non-relevant evidence. Frankly, I’m amazed at how many times I have explained to you why your evidence isn’t important yet you act as if my statements (which are consistent with how the law is applied) don’t exist. Why is that? You are like the guy who is watching his ex-girlfriend make out in the movie theater with another guy and wonders why she hasn’t returned your phone calls. If B is delusional, then you are oblivious.

    In addition, the CAFC or the PTAB could have remand the case back to the primary examiner and ordered him to address the evidence.
    HELLO!! That is what the PTAB did. They stated that their rejection introduced a new grounds, which is essentially a remand back to the Examiner. You could have re-presented your evidence and tried to explain why your evidence overcomes the new grounds of rejection. YOU DIDN’T!!! Forget for a moment that your evidence is lousy for reasons I discussed above, you had your chance. Instead, you made things worse with a precedential Federal Circuit decision with your name on it.

    To completely ignore, what I as the professional in my field feels is pertinent, is not proper.
    It isn’t up to you to determine what is pertinent. The problem is that your evidence is not pertinent to their rejection. Seriously, how many times do you need to be told this?

  • [Avatar for Curious]
    Curious
    April 29, 2023 10:01 pm

    You have a poor understanding of law and of the immediate circumstances.
    So says the guy who got his azz handed to him by the Federal Circuit and has spent so much (unpaid) time going to get shot down by the Supreme Court.

    the PTAB was required to consider all evidence before it
    SIGH. First, the Board instituted a new grounds of rejection. Anything you argued (and the evidence that was presented) in the appeal (before the Board) didn’t address the new grounds of rejection – in other words, it was moot. Second, as I wrote elsewhere, the evidence doesn’t help your cause regardless. At best, the evidence establishes that the abstract idea wasn’t routine. That doesn’t help you. If you don’t understand that, then it is you who has a poor understanding of the law.

    FYI, the CAFC isn’t allowed to re-weigh evidence in an appeal from an administrative agency.
    And how does that help you? It doesn’t. So why even mention it?

    Feel free to tell me a single instance in any brief before the CAFC or S.Ct. where I have even slightly distorted S.Ct. case law.
    Let’s see. There is Diehr talking about mental steps. Somehow, you cannot figure out that a dissent opinion has ZERO persuasiveness. You also wrote about Bilski that “[t]his Court … rejected the Federal Circuit’s mental steps theory.” However, the majority opinion never even mentions the world “mental” and never rejects this so-called mental steps theory. Both the concurrences of Stevens and Breyer cite the language from Benson (i.e., “‘[p]henomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable’ under §101”). This same language was cited in Mayo. You are going to have to explain what this “mental steps theory” is and how it substantively differs from the Supreme Court’s explicitly statement that mental process are not patent eligible under 101. These are just two of the biggest whoppers but certainly not the only ones.

    That said, I ask you to explain:
    I don’t address loser arguments. Mind you, I didn’t say they were bad arguments. They are just loser arguments. They are loser arguments because the Courts don’t care. And if you want to win, you better find something else to argue. The Board, Federal Circuit, and SCOTUS will only entertain so many arguments. You’ve got to pick between making valid but loser arguments and making good arguments based upon the law that the Board, Federal Circuit, and SCOTUS has already stated – whether you agree with that law or not. In that instance, I’m going for the latter.

    BTW, you realize that even the solicitors to the DOJ and USPTO admitted they had no idea how the whole “abstract idea” thing worked in their American Axle brief.
    Seriously, do you read anything I write? Or do you just rant for ranting sake? As I wrote below: “B could have done a better job in mining all of the dissents from Federal Circuit decisions that describe the problems with the 101 jurisprudence.”

    Curious, one cannot determine what is well known or what constitutes an advance in the state of the art without evidence – even in magically PTAB land.
    You are so naïve, and you clearly don’t understand how the USPTO/Federal Circuit makes rejections based upon the law as the Federal Circuit has set forth. The classic approach is to declare almost everything in the claim the “abstract idea.” This then leaves them with things such as a processor, a network, storage, etc. Once that happens, they don’t need evidence because they can take official notice (or cite to old cases) that establishes that a processor, network, storage, etc. are well-known and conventional. This gets done over and over and over again. And where do you think SCOTUS gets its evidence? On page 19 of your Brief, you identify the evidence that SCOTUS relied upon. However, that evidence wasn’t cited at the Federal Circuit. It took me a bit, but I found the original bench memorandum from the District Court – not cited there either. In short, the Courts doesn’t need evidence to be presented – they’ll just find whatever evidence they need.

    The PTAB fully admitted Killian’s claims constituted a practical application within the plain meaning of the term
    Except they also wrote “[h]owever, as we noted in the Decision, the concepts of ‘practical application’ … are specific legal concepts.” Clearly, the so-called plain meaning of “practical application” is coextensive with concept of “utility” and meeting the utility requirement is the easiest of all requirements when it comes to obtaining a patent. However, a great many patents must necessarily have been deemed not to have a “practical application” because they were rejected under 101. Thus, there must be some difference between the legal meaning of the term “practical application” and its “plain meaning.” As such, why do you even bother to make this observation?

    Also, the CAFC had to change the abstract idea to total nonsense while violating due process, basic physics, the APA, and the Cheney doctrine.
    Basic physics? Your hyperbole is hyperbolic. As I have noted before, the CAFC cannot violate the APA. That you continue to make that argument is evidence of you inability to know the law despite being told this same thing on numerous occasions.

    The PTAB never did that either.
    They did. Unfortunately, you don’t understand the law so you cannot tell where they did it.

    Alice/Mayo is capricious. Give up being an apologist
    Lord, you have the reading comprehension of a 1st grader. I’ve NEVER supported Alice/Mayo. And I’ve been on this blog longer than you and have criticized that decision far longer than you have. However, what I have criticized is your inability to understand multiple aspects of the law including how Alice/Mayo is being applied at the USPTO and the Federal Circuit.

  • [Avatar for concerned]
    concerned
    April 29, 2023 06:35 pm

    I was at a group today with common people who know of my case.

    Two principles were deemed to be wrong under any circumstances by these common folks, who know nothing about patents. However, these folks know right from wrong.

    1) A judge should never be able to tell a person that you met the law as written by Congress but did not meet the judges’ case law.

    2). To never address the evidence, good or bad evidence, and simply use the judges own created case law as THE evidence.

    These principles are simply wrong and do not belong in any legal setting.

    In addition, the CAFC or the PTAB could have remand the case back to the primary examiner and ordered him to address the evidence. Either tell me it is good evidence or bad evidence and allow a dialog from that point forward. Tell me exactly what Curious writes if you must, but write something. To completely ignore, what I as the professional in my field feels is pertinent, is not proper.

    We did not even get to judges using phrase that really mean something other than their common meaning, but the judges will not give you their new meaning. It is somewhere in their created case law, not the definition, some circular meaning somewhere over the rainbow.

  • [Avatar for B]
    B
    April 29, 2023 04:38 pm

    @ Curious “It is up to YOU to say why your evidence is special.”

    You have a poor understanding of law and of the immediate circumstances.

    I absolutely did state why the evidence was relevant and material (“special” isn’t a word that applies), and the APA and case law is clear: the PTAB was required to consider all evidence before it, which they refused to do.

    FYI, the CAFC isn’t allowed to re-weigh evidence in an appeal from an administrative agency.

    “Delusional is the phrase I’ve used before, and it seems apt here.”

    Feel free to tell me a single instance in any brief before the CAFC or S.Ct. where I have even slightly distorted S.Ct. case law. Chen did, btw, when he lied about Diehr not “touch[ing] upon” the mental steps doctrine of Benson. You can believe Chen or your own eyes.

    That said, I ask you to explain:

    A) How a judge determines whether something is well-know, routine, and conventional without evidence

    B) How a judge determines whether something is an advance over the prior art without evidence

    C) How Article III courts have authority to create exceptions to s101

    D) What is an “inventive concept.” The courts have failed for over 172 years, but I’m sure you’ve developed a sure-fire definition of the term.

    BTW, you realize that even the solicitors to the DOJ and USPTO admitted they had no idea how the whole “abstract idea” thing worked in their American Axle brief.

    —————————-

    @ Anon “Killian picked up in Law360.”

    The reporter contacted me last night. I’m not sure how she reported as I don’t subscribe to Law360, but she seemed to be a pleasant, matter of fact type person.

  • [Avatar for B]
    B
    April 29, 2023 02:23 pm

    @ Breeze If you can’t shake the politics for a single post, you’re not worth talking to. Maybe you should try tic tok.

    ————————————————————

    @ Curious “Your evidence didn’t address their analysis. Since neither you nor B appear to understand how these rejections are formulated, let me try to explain it to you.”

    Curious, one cannot determine what is well known or what constitutes an advance in the state of the art without evidence – even in magically PTAB land. Making factual assertions without evidence makes a decision arbitrary and capricious.

    “ . . . then determines whether the abstract idea is integrated into a practical application. This does not appear to by you, so I’m going to skip over it.”

    The PTAB fully admitted Killian’s claims constituted a practical application within the plain meaning of the term.

    Also, the CAFC had to change the abstract idea to total nonsense while violating due process, basic physics, the APA, and the Cheney doctrine.

    “ The USPTO then determines if the additional elements . . .”

    The PTAB never did that either.

    Alice/Mayo is capricious. Give up being an apologist

  • [Avatar for Denny Esford]
    Denny Esford
    April 29, 2023 12:27 am

    Wow. Talk about a convoluted argument that our Founding Fathers would not have a clue what you are talking about.

  • [Avatar for Anon]
    Anon
    April 28, 2023 04:47 pm

    Killian picked up in Law360.

  • [Avatar for Breeze]
    Breeze
    April 28, 2023 02:40 pm

    “BTW, Breyer took over 200 junkets paid by others,…”

    How do you know that? Maybe because he, I don’t know, reported them?

    Lulzapalooza

  • [Avatar for Curious]
    Curious
    April 28, 2023 02:15 pm

    Curious: You asked what makes the evidence so special? The USPTO did not even ask that question. If you so readily can ask that question, why could not the USPTO?
    It is up to YOU to say why your evidence is special.

    the USPTO certainly has a responsibility to acknowledge our evidence per their MPEP
    Your evidence didn’t address their analysis. Since neither you nor B appear to understand how these rejections are formulated, let me try to explain it to you.

    1) The court/examiner identifies the “abstract idea” is the claim. What examiners always get wrong is that they are over-inclusive in identify what constitutes the abstract idea. This identification of the abstract idea is important because of what happens in the next step.

    2) After the claim limitations that constitute the abstract idea are considered, anything else is considered “additional elements.” This is an extremely important determination.

    3) The USPTO then determines whether the abstract idea is integrated into a practical application. This does not appear to by you, so I’m going to skip over it.

    4) The USPTO then determines if the additional elements (alone or in combination). The following is directly from the 2019 Patent Eligibility Guidelines:

    Step 2B: If The Claim Is Directed To A Judicial Exception, Evaluate Whether The Claim Provides An Inventive Concept
    It is possible that a claim that does not “integrate” a recited judicial exception is nonetheless patent eligible. For example the claim may recite additional elements that render the claim patent eligible even though a judicial exception is recited in a separate claim element.34 Along these lines, the Federal Circuit has held claims eligible at the second step of the Alice/Mayo test (USPTO Step 2B) because the additional elements recited in the claims provided “significantly more” than the recited judicial exception (e.g., because the additional elements were unconventional in combination).

    Remember what I said about “additional elements”? This is where they come into play. Determining whether something is “well-understood, routine, conventional” only applies to the additional elements (or combination thereof). The Board specifically mentions this is the paragraph that begins on page 14 of the original decision. In the very next paragraph, the Board identifies what they consider to be the additional elements. Notably, this excludes the vast majority of your claims, because they have deemed the vast majority of your claims to recite the abstract idea. Once they’ve done this, it is trivial for them to determine that these “are primitive computer operations found in any computer system.” BTW, this is where better arguments could have been made but weren’t made.

    The “evidence” that you clutch to only speaks to the novelty of the identified abstract idea – and says NOTHING about the additional elements. This is why your evidence was dismissed out of hand by the Board. I suggest you read what they wrote in the first full paragraph on page 16 of the Decision – the inventive concept has to be in the non-abstract limitations. I also suggest you consider what they said in the first full paragraph on page 5 of the Decision on Request for Rehearing.

    BTW, I overlooked this passage in my initial reading of the Federal Circuit decision:
    Mr. Killian raises myriad arguments on appeal. Most of his arguments are directed not to the specifics of the claims of the ‘042 application but to the corpus of § 101 jurisprudence.
    In other words, the Court was recognize that B wasn’t trying to win your case based upon the law. Rather, B was trying to dismantle all of the case law associated with 101. Personally, I’m all for dismantling the case law associated with 101. However, that was NEVER going to happen. The Federal Circuit is bound by their own precedent. They couldn’t overrule their own stuff even if they wanted to. They only people who could do that is the Supreme Court, and in case you haven’t noticed, they aren’t interested. They’ve had plenty of cases with better fact patterns than your own, and they’ve passed on all of them.

  • [Avatar for concerned]
    concerned
    April 28, 2023 01:30 pm

    Curious: You asked what makes the evidence so special? The USPTO did not even ask that question. If you so readily can ask that question, why could not the USPTO?

    And if you are correct that courts do not have to address evidence (what kind of legal process is that?) the USPTO certainly has a responsibility to acknowledge our evidence per their MPEP.

  • [Avatar for Curious]
    Curious
    April 28, 2023 12:30 pm

    Curious, this is a lie and you know it.
    What is it about this evidence makes it so special?

    I argued over 3 pages that the PTAB unlawfully refused to consider 55 documents proving that Killian’s claimed methods and systems were not well-known, routine, and conventional
    Which brings me back to the point I made earlier. Anyone with a novel invention can cite dozens, hundreds of pieces of prior art that shows that the invention was “not well-known, routine, and conventional.” However, novelty does not save an invention under 35 U.S.C. 101. Do you know why? I know the answer. The question is do you know the answer?

    The APA and decades of case law requires the PTAB to consider it.
    That doesn’t explain why the evidence is special. Moreover, a Court doesn’t have to explicitly address evidence (or an argument) for it to be considered. Otherwise, opinions would be a hundred pages long.

    Good god, you not even on the map you’re so far off.
    I’m not the one wasting my time (and let me guess, you are doing this pro bono) on arguments that have zero chance of winning. Where are all the amicus briefs lined up in support of your awesome arguments?

    When case law says two opposite things, [blah, blah, blah]
    You don’t like to lawyer. You like to argue. Maybe one day you’ll figure out the difference between the two.

    The first attorney (and B) also argue Berkheimer, oh that ruling is only used when that case law gets their desired outcome.
    Neither you nor your attorney apparently understand the nuances of Berkheimer.

    And my first attorney passed on the appeal, code for the joke this process represents and he wanted no part of it
    I would want no part of it either. Tough to win with bad facts.

    In addition on the evidence matter, the USPTO, PTAB and CAFC failed to acknowledge the evidence (as you have been told) to even engage in an honest conversation as to why the evidence mattered.
    I’ve told you why the evidence doesn’t matter – many times. You and B, however, seem think “evidence” is this magical incantation that will make the bad 101 rejection go away.

    I am glad this matter is not a criminal trial as I suspect Chen would not have time to review ballistic evidence, an air tight alibi, fingerprints or DNA evidence, although I am sure I would get a fair trial before found guilty.
    Your ignorance of the law is fully on display here. The Federal Circuit is an appellate court – not a trial court. The fact that you don’t know the difference speaks poorly to your counsel.

    My attorney did mentioned in the briefs how the evidence reveals the process to be not routine, well understood and conventional
    The same could be argued by every patent applicant/patent holder who has an application/patent that hasn’t been rejected for prior art. However, why are 101 rejections routinely upheld in these circumstances? Neither you nor B have yet to show me you understand why this is so. Until you understand this, you won’t understand why your evidence has little to no value whatsoever.

    It is my right under the MPEP and APA.
    The Federal Circuit is not bound by the MPEP or the APA.

    Separate the politics spewed by the party that hates Thomas. It only makes you look petty. BTW, Breyer took over 200 junkets paid by others, but I’m not here to badmouth Breyer outside his legal opinions.
    My guess is that if “Breyer took over 200 junkets paid by others”, it means he probably reported them. Otherwise, you wouldn’t have known of them. Thomas got into trouble – not because he received some value in terms of a trip getting paid for and the like – but because he didn’t report it. Every one of the justices engage in “junkets.” It isn’t find to find data of his with a quick search on the internet. While I can see some value in having the justices engage in judicial conferences and speaking events, I think it is rife for abuse. Personally, I would prefer that each receives a very generous stipend from the government that goes to pay for these events and otherwise have a ban of them receiving in kind gifts. That being said, Thomas’s conduct (like his former mentor Scalia) appears to have crossed the line, which has been greatly exacerbated by his lack of disclosure.

  • [Avatar for B]
    B
    April 28, 2023 11:18 am

    @ Anon

    What I appreciate about you is that you understand the problems created by a runaway judiciary. Other attorneys merely pretend to.

    For example, on Renee Quin’s LinkedIn account, a certain unnamed patent attorney from the West Coast (speaking to this article) bloviated “Fixing 101 problems created by other patent attorneys is a great business for those that know what they are doing. I’ve done it many times.”

    One wonders why such a gifted individual hasn’t used his immense talents to fix Alice/Mayo.

    ————————

    @ Breeze “So you don’t like Clarence telling you he knows an inventive concept when he sees one, huh?”

    That was the Supreme Court 9-0 in two separate decisions, but it was Justice Stevens who coined the term in Parker v. Flook (1978), and Breyer who adopted the term in Mayo (2012).

    Stop embarrassing yourself.

    “Maybe you should take him on your private jet to where your super yacht is . . . . .”

    Separate the politics spewed by the party that hates Thomas. It only makes you look petty. BTW, Breyer took over 200 junkets paid by others, but I’m not here to badmouth Breyer outside his legal opinions.

    Lulzzzzzzz

  • [Avatar for B]
    B
    April 28, 2023 10:44 am

    @ Anon “Sure, the current CAFC is a mess, having been firehosed for daring to chastise the SC, and will also need to be reset for any real advance.”

    Half the time it’s the CAFC’s own fault. They’re too lazy to actually read S.Ct. opinions, and to date most CAFC judges don’t understand the holding of Diehr.

    The majority of CAFC got it stupid wrong in Bilski while Rader, Newman, Moore, and O’Malley go it right.

    Alice Corp. proved that the definition of “mass confusion” is deciding an Alice/Mayo case en banc. at the CAFC — although again Rader nailed it and openly warned the world about resurrecting “invention.”

    That said, the CAFC has no lower ethical limits when it comes to Alice/Mayo cases. They don’t apply law and fo shizzle they wont apply evidence to patent eligibility cases.

    It’s an execution, not an appellate review.

  • [Avatar for concerned]
    concerned
    April 28, 2023 07:47 am

    In addition on the evidence matter, the USPTO, PTAB and CAFC failed to acknowledge the evidence (as you have been told) to even engage in an honest conversation as to why the evidence mattered. Those groups all remained silent throughout.

    The CAFC did recognize the evidence argument once, when repeatedly pressed, to the point that the CAFC does not have time to go through briefs (or the Official Record) to consider the evidence argument, hence, the (inappropriate) pigs comment Chen penned.

    I am glad this matter is not a criminal trial as I suspect Chen would not have time to review ballistic evidence, an air tight alibi, fingerprints or DNA evidence, although I am sure I would get a fair trial before found guilty.

    My attorney did mentioned in the briefs how the evidence reveals the process to be not routine, well understood and conventional, however, the evidence would reveal other important aspects if the USPTO, PTAB and CAFC engaged in ANY conversion on the matter. My first attorney discussed in detail with the USPTO as to why the evidence matter. No response form the USPTO, not even an acknowledgement.

    If the CAFC cannot be bother with looking at the briefs and Official Record, then the CAFC could at least remand the matter back to the USPTO and order them to address the evidence and give an explanation as to why the evidence is pertinent or not. It is my right under the MPEP and APA.

  • [Avatar for Anon]
    Anon
    April 28, 2023 07:15 am

    When the topic strays from pure patent law, Breeze emulates Smelly Breeze (related to Poopy Diaper of that other blog).

    Alito’s dissent clearly points out the duplicity of the Left of the Court.

    That being said, ALL of the Supreme Court is suspect when it comes to patent law.

    As a reminder, patent cases are not a part of the Supreme Court’s original jurisdiction, and the original Article III level patent court did NOT have a path to the Supreme Court.

    Sure, the current CAFC is a mess, having been firehosed for daring to chastise the SC, and will also need to be reset for any real advance.

  • [Avatar for concerned]
    concerned
    April 28, 2023 03:57 am

    And my first attorney passed on the appeal, code for the joke this process represents and he wanted no part of it. The first attorney (and B) also argue Berkheimer, oh that ruling is only used when that case law gets their desired outcome.

    Of course, Curious means the part of the law Congress passes is a mere suggestion to the courts, like the speed limit of 70 miles per hour. Only a suggestion to the courts, now go write your own laws. A retired former chief judge of the CAFC, who posts frequently on this forum, says the courts write law in their own image. Not exactly the due process I have in mind.

  • [Avatar for B]
    B
    April 28, 2023 12:58 am

    @ Curious “Alice/Mayo is the law – bad law, but still the law.”

    When case law says two opposite things, it’s not law as it stands for nothing. This is what Giles Rich referred to as a “capricious judicial veto.” When case law violates constitutional due process of law, it’s de jure not law. When case law relies on physical impossibilities, it’s not law but the ramblings of stupid people which deserves only distain. When case law relies on provable serial lies concocted by judges, no one should tolerate it much less validate it.

  • [Avatar for B]
    B
    April 28, 2023 12:38 am

    @ Curious “You had your evidence addressed. And the Court said that there was nothing to it.”

    Curious, this is a lie and you know it.

    Shame on you.

    “What did B argue in his original brief?”

    Half the opening brief was directed to the evidence issue. I argued over 3 pages that the PTAB unlawfully refused to consider 55 documents proving that Killian’s claimed methods and systems were not well-known, routine, and conventional. Judge Chen’s response? OMG you’re making use root for truffles like pigs.

    “What makes this evidence so special? Can you answer that simple question?”

    The APA and decades of case law requires the PTAB to consider it. A decision to make or maintain a rejection in the face of all the evidence must show that it was based on the totality of the evidence. In re Oetiker, 977 F.2d 1443 (Fed. Cir. 1992).

    Good god, you not even on the map you’re so far off.

  • [Avatar for Curious]
    Curious
    April 27, 2023 03:14 pm

    I have the right to have my evidence addressed and it was not addressed. My right was not given to me. Period.
    You had your evidence addressed. And the Court said that there was nothing to it. I’ve asked you repeatedly what you think this evidence supports relative to a rejection under 35 USC 101 and you have continually dodged that question. What did B argue in his original brief? What makes this evidence so special? Can you answer that simple question?

    In what legal setting is it proper to ignore evidence, whether it is good evidence or bad?
    They didn’t ignore your evidence. The Federal Circuit opinion explicitly references your evidence. Your problem is that you didn’t tie this evidence to a good argument.

    The law is whatever the judges make it.
    It has been that way for a long time. See Marbury v. Madison (court gets to say what the law is).

    in re: Killian is not the problem and it did not make it worse.
    Don’t be in denial. It made things worse. It gave the Board another tool by which to ignore good arguments. Every precedential decision by the Federal Circuit is yet another decision that we have to argue around.

  • [Avatar for concerned]
    concerned
    April 27, 2023 01:37 pm

    The MPEP states that I have the right to establish a prima facie case, that I can submit evidence. I have the right to have my evidence addressed and it was not addressed. My right was not given to me. Period.

    The law is whatever the judges make it. Look at abortion. Add judicial exceptions, then take exceptions away when politically needed (Dobbs).

    In re: Killian is not the problem.

  • [Avatar for concerned]
    concerned
    April 27, 2023 01:13 pm

    Curious: “Judges do not opine on every piece of evidence.” These judges did not opine on ANY piece of evidence. Neither did the USPTO. Lawyer or not, this is wrong whether it happens all the time or not. The fact you are an attorney should offend you the most. In what legal setting is it proper to ignore evidence, whether it is good evidence or bad? Evidence should be addressed and ruled on according to its merits.

    in re: Killian is not the problem and it did not make it worse. The judges are going to do whatever they want whether it is in re: Killian or Smith or Jones. The names represent the victims of their liberties and the judges were doing it way before I arrived and way after I leave. Killian is just a convenient label to slap on to rid them of a case. It could have easily been the next victim named Smith.

    And no, I do not think Thomas will correct his error. That would take…..

  • [Avatar for Curious]
    Curious
    April 27, 2023 12:44 pm

    Dude – Alice/Mayo isn’t law.
    Alice/Mayo is the law – bad law, but still the law.

    Congress wrote out of the patent law.
    Congress is the only viable solution (and even then, it isn’t that viable). You are wasting your time with the Supreme Court.

    I have NEVER misrepresented a single S.Ct. opinion
    LOL.

    I school the Fed. Cir. in S.Ct. law every time I appear before the CAFC. I have the briefs and oral argument recordings to prove it.
    Delusional is the phrase I’ve used before, and it seems apt here.

    That said, when the CAFC brazenly lies (as they did in In re Killian) in order to maintain an Alice/Mayo rejection – as well as violate due process, the APA, and the Chenery doctrine – I must be doing something right.
    LOL

    That said, if Alito, Thomas, and Kavanaugh vote against cert., I’ll be first to condemn them.
    Alito and Thomas were only Alice – you know, the case you said “isn’t law.” Thomas wrote Alice. Do you really think Thomas will own up to making a mistake?

    I met Congress’ law but not the judges’ case law.
    That’s your own fault by hiring a patent attorney to write your application that didn’t understand the law – and the law includes both statutory and case law. Writing for one but not the other is a terrible mistake.

    Then the judges should acknowledge and write the same. Instead, the judges and USPTO are completely silent on the issue. Very suspicious. You could write it, why can’t they?
    If you were a lawyer, it wouldn’t be that suspicious. Courts don’t opine on every single piece of evidence that gets presented. That being said, the Federal Circuit dismissed that evidence as being nothing more than “a conclusory, skeletal argument.” Perhaps you would be so kind to reproduce what B wrote in your original brief to the Federal Circuit explaining the importance of those references.

    Anon and B could be my attorneys any day, even if we go down 100%. Many seem to be more interested in keeping their job then doing their job.
    LOL. My clients want issued patents – that’s why they hire me. You want to tilt at windmills. For that job, I wholeheartedly recommend B and Anon.

    Yet, we stood up to the bullies.
    You wasted your time and left, as your legacy, In re Killian, which the rest of us will have to live with. You made things worse – not better. Bad facts make for bad law, and you were pushing some pretty bad facts.

    One patent application and done.
    The intended result of the case law surrounding 35 USC 101. You fell into the “bullies” trap and have given them exactly what they want.

  • [Avatar for Breeze]
    Breeze
    April 27, 2023 10:24 am

    “First, the judges openly admit they legislate from the bench.”

    So you don’t like Clarence telling you he knows an inventive concept when he sees one, huh? Maybe you should take him on your private jet to where your super yacht is docked and he will help you out. Wouldn’t hurt to put his moms up rent free either.

    “That said, if Alito, Thomas, and Kavanaugh vote against cert., I’ll be first to condemn them.”

    Lulz

  • [Avatar for Concerned]
    Concerned
    April 27, 2023 05:50 am

    This is my one and only patent application and it is obvious that the patent system is horribly flawed to a common person.

    First, the judges openly admit they legislate from the bench. I met Congress’ law but not the judges’ case law. Second, the USPTO, PTAB and CAFC have all refused to acknowledge and address any of my evidence.

    Curious: You state my evidence is irrelevant. Then the judges should acknowledge and write the same. Instead, the judges and USPTO are completely silent on the issue. Very suspicious. You could write it, why can’t they?

    The common person would find the behavior of judges making the law and ignoring evidence as offensive. Yet some of the attorneys on this forum act like they readily accept this behavior. Those attorneys attack B for standing up to what every attorney knows is wrong, but some just go with the flow. You are not the solution by accepting this behavior.

    Anon states attorneys take an oath to uphold the law. Anon and B could be my attorneys any day, even if we go down 100%. Many seem to be more interested in keeping their job then doing their job.

    Yes, my request for cert may go completely down in flames. Yet, we stood up to the bullies. Much better than kissing their rump and still going down in flames. No one gets cert. As least my lips stayed in place.

    One patent application and done.

  • [Avatar for B]
    B
    April 26, 2023 11:17 pm

    @ Breeze “None of those 3 hacks any core principles. Except Lord Voldemort’s principle: There is only power and those willing to use it.”

    If you don’t think the liberal side of the S.Ct. doesn’t misuse power for political ends you’re not paying attention. That said, instead of name-calling, I would respectfully suggest pointing out why you think the aforesaid judges misuse power with honest debate and critical thinking to follow.

    That said, if Alito, Thomas, and Kavanaugh vote against cert., I’ll be first to condemn them.

  • [Avatar for B]
    B
    April 26, 2023 10:57 pm

    @ Curious “That’s not a good thing. I’ve already see the Board affirm a multitude of 101 rejections while employing Killian.”

    The PTAB would use any reason – no matter how stupid – to uphold an Alice/Mayo rejection, and Judge Chen’s Killian opinion is science fantasy.

    “B spends far too much time pontificating rather that citing the law and explaining why your invention meets 35 USC 101. And even if B wrote the perfect brief, they wouldn’t take this on.”

    Dude – Alice/Mayo isn’t law. It’s capricious nonsense of the exact sort Judge Giles Rich mocked for decades, and that Congress wrote out of the patent law.

    What will it take you to open your eyes? For the S.Ct. to announce the “flash of creative genius 2.0” test?

    “B loses credibility when he goes does rabbit holes such as due process violations, failure to consider evidence, and the misrepresentation of past Supreme Court decisions.”

    I have NEVER misrepresented a single S.Ct. opinion, and in fact I school the Fed. Cir. in S.Ct. law every time I appear before the CAFC. I have the briefs and oral argument recordings to prove it.

    Further, in every other area of law issues of fact require evidence. It takes an extremely poor attorney to not understand the problem.

    That said, when the CAFC brazenly lies (as they did in In re Killian) in order to maintain an Alice/Mayo rejection – as well as violate due process, the APA, and the Chenery doctrine – I must be doing something right.

    As to the void-for-vagueness nonsense – Chen misrepresented a previous CAFC opinion he wrote. Go read it – we’ll discuss.

  • [Avatar for B]
    B
    April 26, 2023 10:36 pm

    @ Anon “What was the provided answer to “inventive concept”…?”

    “Whatever the He-l an examiner says it is”

  • [Avatar for Anon]
    Anon
    April 26, 2023 02:26 pm

    B,

    What was the provided answer to “inventive concept”…?

  • [Avatar for Anon]
    Anon
    April 26, 2023 02:15 pm

    B,

    Make no doubt that my position differentiates from Breeze et al., in that I blame the Court as opposed to ANYTHING you did — or could — say.

  • [Avatar for Breeze]
    Breeze
    April 26, 2023 01:55 pm

    “Will Alito, Thomas, and Kavanaugh respond to their own words – or are they just all politics and no core principles?”

    None of those 3 hacks any core principles. Except Lord Voldemort’s principle: There is only power and those willing to use it.

    I hope you at least cited some 16th century English judges who believe in exorcism or witch burning to get Alito’s attention.

  • [Avatar for Curious]
    Curious
    April 26, 2023 01:04 pm

    Most people thought I would get “36” at the CAFC. Not only did the CAFC hear my case, the CAFC made my case “precedential.”
    That’s not a good thing. I’ve already see the Board affirm a multitude of 101 rejections while employing Killian.

    And the CAFC said we should be making our arguments to SCOTUS.
    Don’t confuse ‘these arguments aren’t going to be persuasive with us, they should be made at the Supreme Court’ with ‘these arguments are good, you should make them at the Supreme Court.’

    One thing a novice like me has learned: You cannot outguess the SCOTUS on cert. Sure, based on the 50-100 certs the SCOTUS has already turned down, my cert is very unlikely. However, do not bet your life on it as frankly the SCOTUS is unpredictable.
    If SCOTUS was to take on your case, my expectation is that they would make it worse — not better.

    My case does represent an all-out assault on the Rule of Law. The courts are openly legislating from the bench (without dispute) using phrases the judges refuse to define.
    You are going into the thieves’ guild armed with a peashooter asking that they give back everything that they’ve stolen. You will not find a sympathetic ear.

    The USPTO, PTAB and CAFC have refused to acknowledge or address any or all of my 55 separate documents of evidence while not countering with any rebuttal evidence.
    How many times have I told you this? Your evidence is next to worthless when it comes to 35 USC 101. All it shows is that no one else has practiced your invention. Anyone who has ever got a patent the last 50 years can easily produce 50 pieces of prior art that show the same. The same can be said about anyone who has an application rejected under 35 USC 101. What makes your evidence so special?

    Yes, I agree my case is not as politically important as abortion. However, one could argue that the dearly held principles of due process are on trial.
    You got due process. Arguing that applying a test having “non-existent definitions” is not a due process violation. I don’t know of a single test that is applied in patent law (or any other law for that matter) in which every term has a known definition. Did B have a case cite that establishes a due process violation for a test with “non-existent definitions”? I’ll answer that question — the answer is: NO. He hasn’t a single cite to a Supreme Court decision that supports his position that there was a due process violation.

    If you want to win with the Examiner or at the Board or at the Federal Circuit or at the Supreme Court, you need to do it within the confines of established law. As best as I can tell, you have never attempted to do that. Rather, B wants to blow everything up. Personally, I’m all for blowing everything up as I think the whole exceptions to statutory subject matter was ill-conceived and ill-implemented from the beginning. That being said, the Supreme Court has been given ample opportunity to blow things up in the past. Not only have they declined to do so, they haven’t even taken on another 101 cases since Alice to clarify their positions. It is plain as f’n day that they’ve washed their hands of the matter.

    There are some nice quotes in the petition. For example, on page 46, B writes:
    Alice/Mayo has swallowed nearly all of the Patent
    Law to the point where technical realities no longer
    have sway in the courts. “Abstract” can mean
    anything a technically uninformed judge say it
    means. The lower courts can assert that a claim of
    any detail preempts all ways of achieving an abstract
    idea by ignoring claim limitations.

    This is all accurate. However, SCOTUS doesn’t care. This is a feature — not a bug.

    To be honest, B could have done a better job in mining all of the dissents from Federal Circuit decisions that describe the problems with the 101 jurisprudence. The problem with B’s brief is that his arguments are unfocused. Instead of focusing his time on a single point, he’s is all over the place with his allegations. He should have focused on the best argument — which is that the current jurisprudence is unworkable — and skipped the rest.

    B loses credibility when he goes does rabbit holes such as due process violations, failure to consider evidence, and the misrepresentation of past Supreme Court decisions. When the Federal Circuit said that Diehr did not comment on mental steps, they were referring to the majority opinion. However, B takes them to task because the dissent mentions mental steps. I can see the eyerolls from the Supreme Court clerks after reading this little missive. His characterizations of Bilski and Alice do nothing to help you.

    B spends far too much time pontificating rather that citing the law and explaining why your invention meets 35 USC 101. And even if B wrote the perfect brief, they wouldn’t take this on.

  • [Avatar for concerned]
    concerned
    April 26, 2023 12:10 pm

    To the windmill gallery:

    Most people thought I would get “36” at the CAFC. Not only did the CAFC hear my case, the CAFC made my case “precedential.” And the CAFC said we should be making our arguments to SCOTUS.

    One thing a novice like me has learned: You cannot outguess the SCOTUS on cert. Sure, based on the 50-100 certs the SCOTUS has already turned down, my cert is very unlikely. However, do not bet your life on it as frankly the SCOTUS is unpredictable.

    My attorney B has done an excellent job in my opinion. I am proud he represented my case even if we go down swinging. In the batter’s box, most do not even get to the dugout.

  • [Avatar for Addy]
    Addy
    April 26, 2023 11:08 am

    Breeze: Windmill tilting indeed.

  • [Avatar for B]
    B
    April 26, 2023 10:38 am

    @ Anon and Breeze

    I specialize in insanity and useless acts, but I always have hope and do my best. I’ve proved to myself and ten other people that the CAFC is a hopeless collection of dishonest third-rate intellects unfit to judge a pie-eating contest.

    Now I need to prove to myself that the S.Ct. is the same.

    Will Alito, Thomas, and Kavanaugh respond to their own words – or are they just all politics and no core principles?

    BTW, after years of asking (over 400) examiners what an “inventive concept” is, I finally got a correct answer about two weeks ago. It was as if the Examiner was channeling Judge Giles Rich

  • [Avatar for Breeze]
    Breeze
    April 26, 2023 10:09 am

    I hope the client is paying much (if anything at all) for this windmill tilting exercise.

  • [Avatar for Anon]
    Anon
    April 26, 2023 07:19 am

    Sadly, and I earnestly mean that, I need not bother reading this article to comfortably predict that the Supreme Court will not take this case.

  • [Avatar for Concerned]
    Concerned
    April 26, 2023 05:28 am

    Mr. Pronk:

    Thank you for the well written article.

    One of my friends said SCOTUS will not accept the case, it is not that important. This friend must mean not that important politically.

    My case does represent an all-out assault on the Rule of Law. The courts are openly legislating from the bench (without dispute) using phrases the judges refuse to define. I was told I met the law as written by Congress using everyday words, just not the courts’ version of the law. And my attorney never was given a definition of “significantly more” or “inventive concept.”

    The USPTO, PTAB and CAFC have refused to acknowledge or address any or all of my 55 separate documents of evidence while not countering with any rebuttal evidence. Their position is basically this is how we legislated our own version of the law; we do not need evidence; we only need our own version of our own case law, not the law passed by Congress.

    Yes, I agree my case is not as politically important as abortion. However, one could argue that the dearly held principles of due process are on trial. I did receive some kind of legal process, a process where if I can make the law any way I want, using phrases I do not have to define, and I can discard any and all evidence, then I can and will reach any outcome I desire.

    Curious has given me some great advice. Forget this patent application, play their game, and get the application granted. Would it not be rise and repeat on the IPR side of the equation? Rules made up as we go, no definitions, evidence need not apply, and huge financial outlays and heartache watching my patent get destroyed by some deep pocketed adversaries.

    For what desired outcome? I was only trying to help people with disabilities get their benefits by correcting application errors and omissions. If their application was submitted correctly, by a well-meaning third party, the benefits would already be paid.

    Using a common phrase “You don’t have to make a federal case” out of it, or do I just to help make society better?

  • [Avatar for B]
    B
    April 25, 2023 10:17 pm

    SCOTUS Reality check”

    “[C]ourts ‘should not read into the patent laws limitations and conditions which the legislature has not expressed.’” Bilski v. Kappos, slip op. at p. 2 (citing Diamond v. Diehr).

    “In patent law, as in all statutory construction, ‘[u]nless otherwise defined, `words will be interpreted as taking their ordinary, contemporary, common meaning.'” Id.

  • [Avatar for Pro Say]
    Pro Say
    April 25, 2023 06:37 pm

    “But the CAFC said that Killian’s argument should be made to the Supreme Court and not the PTAB or CAFC, [who are simply applying Supreme Court precedent].”

    “Who are simply applying Supreme Court precedent.”

    There are lies, and then there are d.a.m.n. lies.

    This is a d.a.m.n. lie. And just as bad, the CAFC knows it.

    If the CAFC has merely correctly cabined the very narrow limits on ineligibility as SCOTUS was very careful to explain, American innovation wouldn’t be in the mess it is today.

    While Congress holds meaningless, worthless, time-wasting hearings that lead to . . . nothing.

    Nothing.

  • [Avatar for Pro Say]
    Pro Say
    April 25, 2023 06:19 pm

    Bravo, Jeff and Burman. Bravo.

  • [Avatar for B]
    B
    April 25, 2023 05:16 pm

    Thank you, Alex, for this matter-of-fact article, which brings attention to the hardships created by an overstepping judiciary. I’m hoping that such articles will raise both support for Killian as well as awareness of the problems created by Alice/Mayo

    Signed

    /B/
    Counsel for Petitioner Killian

    P.S.: I logged on literally 7 seconds after this story was posted

  • [Avatar for B]
    B
    April 25, 2023 05:08 pm

    First