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« Conference & CLE Calendar | Main | Court Report »

September 08, 2013

Comments

Your point 5 rings out loudest.

The message: Supreme Court, fix your mess.

Will they turn a deaf ear to the pleadings, or will they actually decide something in black and white terms?

I remain...

"Despite Chief Judge Rader's belief to the contrary, in my view Accenture's claim 1 could be performed as a series of mental or paper-and-pencil calculations."

Michael,

I couldn't disagree with your characterization of claim 1 more. How, for example, can "a server component" which includes "an event processor, a task engine and a task assistant" be anything other than hardware, so that the system of claim 1 could possibly be performed by a "human with pencil and paper"?

What I do agree with is your point 4. Lourie's characterization of the claimed subject matter in Accenture, as well as CLS Bank is so subjective as to be logically nonsensical when it comes properly characterizing computerized systems and their components (e.g., the "server component"). And Lourie isn't alone on the Federal Circuit in having this myopic and nonsensical view of computerized systems, as Dyk also shares this "myopia" in spades. And I also agree with Skeptical: SCOTUS has created this mess but unfortunately shows no willingness to fix it or clean it up.

"Chief Judge Rader provided several ways in which one could generate such tasks without infringing Accenture's claims, such as using a different number of databases or a different database structure. "

Although he didn't point out what this would look like in real life since it's all a bunch of software and not actual different databases etc. And he also failed to mention at what point he, himself, Rader, would feel that the doctrine of equivalents wouldn't make them infringing anyway.

"Procedural posture matters. It is possible that Judge Lourie found the claims in Ultramercial patent-eligible mainly because they were considered on an early motion to dismiss, and therefore would need to be reviewed in the light most favorable to the patentee"

Based on his comments in the instant case I'd say it is much more likely that he simply boinked up the formulation of the abstract idea at issue since all the things he just now said would prevent the claim from preempting are simply more abstractions that should have been incorporated into the abstract idea from the get go.

6,

That does not make any sense.

"Is the machine or transformation test making a quiet return?

It never really left. It just isn't a hard and fast rule.

"Judge Lourie's inventive concept analysis, which was ultimately derived from Justice Breyer's opinion in Prometheus, remains unsettling in its subjectivity. A court must "identify and define whatever fundamental concept appears wrapped up in the claim." However, few guidelines for doing so exist. "

You just have to do the best you can as the judge or examiner on the case. People will make mistakes. See for example judge Lourie's finding of the abstract idea at issue in Wildtangent.

"Thus, two judges could easily obtain two different variations of such an inventive concept for the same claim, one leading to the conclusion that the claim meets the requirements of § 101, the other not."

Both judges need to consider both of the variations identified by each other, along with all the rest of an infinite variety of variations for the purposes of judging if the claim is preempting.

"How, for example, can "a server component" which includes "an event processor, a task engine and a task assistant" be anything other than hardware, "

Check the specification EG. Then interpret the claims in light thereof.

"6,

That does not make any sense."

Which Skeptical?

Rader certainly did not point out how, in the real world someone would realistically avoid infringement. Sorry, he just didn't. He laid out a few ways that look good on their face but in the end would just end up with them getting hit under doctrine of equivs or in some of his examples they'd still be literally infringing because the computer program is all one big thing, the differences between databases would be immaterial in an irl software embodiment and thus impossible to tell apart.

As to Lourie messing up the abstract idea formulation in Alice, what I said isn't all that complex. Lourie should reformulate his proposed abstract idea to incorporate some of the concepts that he is proposing make the claim not preempt. Simple as that. Abstractions like "on the interwebs" or "in a webpage" or "free access conditioned on viewing a message" or "pertaining to media products" are simply something that he forgot to properly incorporate into the formulation of the abstract idea at issue from the get go, not some "meaningful limitations" indicating no preemption. Though they certainly do indicate no preemption of the absurdly short proposed abstract idea at issue of "the abstract idea of advertising as currency". The analysis doesn't end there though. Gotta run through other possibilities of abstract ideas at issue. There are an infinite number of them to roll through, so you've got to try to narrow it down some.

Lourie coming in with the absurdly overly simplified "the abstract idea of advertising as currency" is preposterous for such a long abstract claim. If someone proposed to say "Alice's specific abstract idea of advertising as currency" just to save themselves having to write out the entirety of the abstraction at issue longhand then I could sympathize. The Supremes were doing the the same thing in Bilski shortening up the recitation of the abstraction at issue and not writing it out long hand. But ordinarily I feel it should be written out longhand.


Lourie seems to have introduced the "pith and marrow" analysis used in other jurisdictions, with its attendant subjectiveness (i.e. unpredictability). Judge Rich must be turning in his grave.

EG,

There is nothing in the claim that limits the scope of “a server component” to hardware. Thus, it could be a software application, such as an FTP server, web server, etc.

Taking this a step further, the required functions of this server, such as identifying tasks based on events, rules, and perhaps other information in databases, is within the realm of human capability.

Mike

Mike,

OK, so the "server component" could include software, but if you look at what the specification in this patent describes, what I see is a computerized system using client-server type architecture. That means there's got to be "hardware" in this claimed system, it doesn't simply exist in the ether.

Also saying that what's defined in claim 1 is "within the realm of human capability" would require you to ignore what the specification describes, as well as construe the claim terms without regard to their "ordinary and customary meaning." Sorry, I agree completely with Rader: Lourie reached a dreadfully bad/wrong determination that shows no concern for reality or objectivity.

EG,

Is this a case of Broadest "Un"reasonable Interpretation, wherein the claim is being (mis)read outside of what a person having ordinary skill in the art would recognize?

EG,

If you look back to the district court proceedings, you'll find that the judge did not construe that term, and ultimately held that the claim failed the machine prong of the machine or transformation test. Here is the relevant text:

"Although plaintiffs assert that other components (databases, client component, and server component) are important signals that claims 1 and 8 are tied to a machine, the court was not asked to define them. Notwithstanding, none of these terms imply a specific computer having any particular programming.

Without holding so expressly, it appears that claims 1 and 8 of the ′284 patent may be valid if interpreted as claiming a particular machine (computer) programmed with the software so painstakingly described in the specification. The parties have not framed their arguments in this manner and, therefore, it is unclear to the court which (if any) of the claim terms achieve this goal. It appears to be a possibility that such programming is implicit in the claims' recitation of particular “rules”-a term not presented to the court for construction. Even were this to be the case, it is unclear whether the claims are framed in a manner implicating a particular computer programmed in this fashion."

So the court is open to the idea that the server component is hardware, but did not rule as such. Based on that posture, we're left to interpret the claims literally, and I think that my point remains valid.

Rader wrote “[m]oreover, because the claims require specific computer components, a human performing the claimed steps through a combination of physical or mental steps likewise does not infringe.” He doesn’t refer to the district court’s claim construction (or lack thereof), so his conclusion seems to be...conclusory.

Skeptical,

Couldn't have phrased it better myself. Lourie construes claim 1 as if what's described in the patent specification doesn't exist.

What has unfortunately happened in 35 USC 101 jurisprudence is a "game of semantics," rather than construing claim terms according to the "ordinary and customary meaning," and even worse, contrary to how the patent applicant defines those claim terms.

"what I see is a computerized system using client-server type architecture."

By "architecture" do you mean "hardware" or do you mean "software"? Because if you're insinuating the former, you are mistaken, based simply on the hardware depicted in the spec.

"That means there's got to be "hardware" in this claimed system, it doesn't simply exist in the ether."

Not really, "software architecture" is a term.

http://en.wikipedia.org/wiki/Software_architecture

The "client-server" type "architecture" can simply be more software.

Though if by "there's got to be hardware" you simply mean that at least a general purpose dell computer must be involved, sure thing brosef. The claim is totally limited to the field of compooting.

It appears to me based on many conversations about the case that the chief differences between the people that agree with the outcome in this case and the people that disagree with it is simply a matter of the one group understanding what was claimed and the other group not understanding, or not having taken the time to figure it out.

"Lourie construes claim 1 as if what's described in the patent specification doesn't exist."

I think Lourie specifically pointed out what was in the specification in making his decision.

"What has unfortunately happened in 35 USC 101 jurisprudence is a "game of semantics," "

You drafters started it. If you didn't try to patent on software in the first place then there wouldn't be any of this trouble.

6,

I have seen no legal argument to support a ban on software patents from you.

"I have seen no legal argument to support a ban on software patents from you."

Nor will you likely hear that from me. Though you may have caught my 4 year series on preemption. You may also have caught bits and pieces of my encouraging folks to not fall prey to the game of semantics that drafters attempt to play when attempting to patent on some software.

But if you insist I'm sure I could come up with something.

I have caught your series on preemption.

I am waiting for you to follow through on your promise, though, that will render your series on preemption as the shallow gobbledygook that it is.

I have also caught your latest in flagrante delicto about your lack of character.

Should anyone be surprised by that development? I am...

6,

I completely agree with Skeptical's comment regarding your so-called "preemption" theory as being nothing but "shallow gobbbleygook."

Also, there's nothing wrong with trying to patent "software" (also, how do you define "software") as it was and still is statutory subject matter under 35 USC 101, no matter what you, MPEP 2106, or perhaps 4 technology-challenged Justices might believe otherwise. It's either a process, manufacture or machine, so take your pick, only one is needed to be patent-eligible under 35 USC 101

Again, software doesn't exist in the ether, it's has to be tied down to some physical structure (e.g., CD or computer hard disk) at some point in time. Software also performs the same/similar functions that hardware once did. So what you may believe otherwise about software is unpersuasive in view of the reality of what software is, where it exists, and what it does.

EG: " It's either a process, manufacture or machine, so take your pick, only one is needed to be patent-eligible under 35 USC 101"

That's not the test for determining patent subject matter eligibility in the United States. I'm not sure that it ever was but it hasn't been the test for many, many years.

Oh, Skeptical, it is cruel to entice us with the idea of 6 "in flagrante delicto" and not give us a reference, cite or URL (although I'm not sure I could handle a 6 sex tape).

Do tell.

You made me chuckle, Dr. Noonan - but please remember that the phrase only 'may' have a colloquial tie to such prurient matters.

Would anyone have the stomach for what you suggest? I (too) am...

"I am waiting for you to follow through on your promise, though,"

And which "promise" is that?

Or should I simply call you anon-boy-that-is-obsessed-with-my-"promises"?

"Oh, Skeptical, it is cruel to entice us with the idea of 6 "in flagrante delicto" and not give us a reference, cite or URL (although I'm not sure I could handle a 6 sex tape)."

That's just him talking up his own delusions Kev. Sorry to get you so excited.

All he's talking about is him trying to say that I'm not "intellectually honest" in order to trash my character (and going through significant time and trouble to establish such). And then my subsequent simple admission that 6, as a character, has no character, by design, for him to further diminish or destroy so that I could save us all a lot of time. To him, or his alter ego "anon" this is a "beatdown" because apparently destroying the rep/character (or even gaining an admission that they have no character for destruction) of a ficticious interbutts character is a big achievement for him. One with which he will be obsessed for at least another few years. But that's the regrettable part of discussing things with mentally challenged individuals.

Hey Kev, remember a few years back when you told me changing the world was hard? Nah, not that hard. :)

We haven't talked much about the Myriad decision, how'd you like them apples? I tots nailed it! Got the grounds right for the claims that went down, got the part about their admission being used to establish the grounds correct, got the cDNA right. It's all a simple matter of understanding preemption.

/e-flex

"I completely agree with Skeptical's comment regarding your so-called "preemption" theory as being nothing but "shallow gobbbleygook.""

Don't forget to add: "the law" to the end of that little list of things which preemption is EG.

I know you're not a fan, but the USSC is and the fed circ is warming to it. Also, I prefer if we just call it a doctrine, instead of a "theory". Something isn't really a "theory" when it can be empirically observed, as we do with courts invalidating patents using the preemption doctrine.

"Also, there's nothing wrong with trying to patent "software" (also, how do you define "software") as it was and still is statutory subject matter under 35 USC 101, no matter what you, MPEP 2106, or perhaps 4 technology-challenged Justices might believe otherwise."

Maybe, maybe not. But I still recommend that examiners and judges alike not pay any heed to the semantical word games played by drafters when evaluating such.

"It's either a process, manufacture or machine, so take your pick, only one is needed to be patent-eligible under 35 USC 101"

And your claim only need preempt one abstract idea for it to be excluded. So what's your point brosef?


"Again, software doesn't exist in the ether, it's has to be tied down to some physical structure (e.g., CD or computer hard disk) at some point in time. "

Sooooooooo......... Wuuuuuuuuuuuuutttttttt?

"Software also performs the same/similar functions that hardware once did. "

Dedicated hardware can still do like 99% of what is seen in garbage computer claims.

"So what you may believe otherwise about software is unpersuasive"

To whom? You? Me? Or the courts that are eventually going to get around to invalidating your sht? Or the congress that will eventually get its slow ar se in gear?

"in view of the reality of what software is, where it exists, and what it does. "

Put all that in the claim and you've got yourself a deal on probably getting yourself a patent, or at least getting by 101. Unfortunately you never want to... meh, so much the sorrier. If you actually did put "what it is" in the claim, and went ahead and listed out a bunch of 1010101010110111011011110101011010's or that sort of nonsense it would make examining the claims a lot more fun.

6,

You asked me if I had followed your series on preemption and I responded that I had.

You cannot seriously believe that I have ignored the feedback given to you throughout that series, can you?

As I said, your view on preemption is a shallow gobbledlygook, and your lack of willingness to defend your view tells me just as much as if you had tried - and had failed - to defend it.

You are welcome to engage in any type of conspiracy theory that you wish, but such would not be necessary to see through your view.

As to your character, yes, the current exchange on that subject is rather humorous, as you do not appear to understand how badly you have mangled your 'character' all on your own.

And finally, after the levity and returning to an actual legal discussion, I still have not seen any legal argument from you to support a ban on software patents.

Whether you can provide a cogent legal position, or if you are just another 'wanna-be,' well, as to the former I remain...

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