Voxathon LLC v. Alpine Electronics of America, Inc. (E.D. Tex. 2016)

By Michael Borella --

Voxathon sued Alpine, and a number of defendants that manufacture automobiles, for infringement of U.S. Patent No. 6,442,261.  According to the Court, the patent "relates to computer-implemented systems and methods for transferring information efficiently."  Specifically, claim 1 recites:

A method for recovering calls using an attendant telephone set having a predetermined number of call appearance buttons comprising:
    receiving a plurality of incoming telephone calls from calling parties;
    identifying a telephone number of the calling party of each incoming telephone call;
    assigning each incoming telephone call to a next available call appearance button of said predetermined number of call appearance buttons;
    storing the identified telephone number associated with each incoming telephone call in a memory device; and
    automatically redialing, in response to the attendant's  selection of one of the call appearance buttons, the stored telephone number of the calling party of the incoming call assigned to the selected call appearance button.

The defendants filed multiple 12(b)(6) motions to dismiss the case on the grounds that the claims of the '261 patent lack subject matter eligibility under 35 U.S.C. § 101.  The Court found that there were no material factual disputes that prevented it from evaluating these motions on the pleadings.  Despite Voxathon arguing that the defendants had misconstrued or disregarded several claim terms, the Court stated that construction of these terms would not change the substantive § 101 analysis.  Citing to the precedential Federal Circuit case of Bancorp Servs., L.L.C. v. Sun Life. Assur. Co. of Canada, the Court stated that it was not required to wait until after claim construction to make a § 101 determination.

That out of the way, the Court reviewed the two-prong test for patent-eligibility under § 101 set forth in Alice Corp. v. CLS Bank Int'l.  First, one must determine whether the claim at hand is directed to a judicially-excluded law of nature, a natural phenomenon, or an abstract idea.  If so, then one must further determine whether any element, or combination of elements, in the claim is sufficient to ensure that the claim amounts to something more than the judicial exception.  Notably, generic computer implementation of an otherwise abstract process does not qualify as "something more."

Applying the first prong, the Court characterized the claim as "directed to the abstract idea of responding to a sender of a message."  Despite explicit recitation of "a telephone set" and "call appearance buttons," the Court made an analogy between the claimed invention and a manual procedure that could be carried out by a human.  Particularly, the Court wrote that "[w]hether a message is received through a telephone or a letter, the steps of receiving a message, identifying the sender of the message, remembering the address or phone number of the sender of the message, and responding to the sender of a message remain the same."

Voxathon argued that the claims disclosed an improved telephone set that solved problems in the prior art related to telephone calls going unanswered.  The Court rejected this notion, stating that any such new device "merely performs the abstract idea of responding to the sender of a message."  Looking to the claims found ineligible in Planet Bingo, LLC v. VKGS LLC and Content Extraction and Transmission LLC v. Wells Fargo Bank, National Ass'n, the Court concluded that the '261 patent similarly included steps of "1) collecting data, 2) recognizing certain data within the collected data set, and 3) storing that recognized data in a memory," and that the recalling step did not make a significant difference.

Turning to the second prong, Voxathon used an expert declaration in an attempt to establish that the claim contains "several material, non-generic limitations."  The Court, however, rejected the declaration as being "inadequate" without explaining why.  (Apparently, this declaration did not raise a material issue of fact that prevented the Court from ruling on the 12(b)(6) motion.)  Instead, the Court stated that "the '261 patent simply automates an abstract idea -- responding to the sender of a message -- albeit through the use of a 'telephone set,'" and that "[a] generic computer can perform the same conventional and routine steps as the 'telephone set.'"

Voxathon further argued that the claimed invention "eliminates errors associated with the process of receiving and redialing a phone number."  But the Court found this notion unavailing, because even "[t]hough a computer may be more efficient or less error-prone than a human, mere automation through a generic computer is not enough to render a patent eligible under § 101."  Finally, Voxathon noted that the claim's preemption is "narrow and not absolute."  Once again, the Court was unconvinced, and noted that the absence of compete preemption does not demonstrate patent-eligibility, and that the claim is effectively a monopoly over the aforementioned abstract idea.

Consequently, the '261 patent was held to be invalid under § 101, and the case was dismissed.

This is yet another example that tracks a familiar trend in § 101 jurisprudence: (1) a claim is viewed at a 10,000 foot level to remove from it all devices and machines, (2) this gist of the claim is declared abstract, and (3) when the devices and machines are examined separately from this gist of the claim, they are determined to be no more than routine and conventional, adding no patentable weight.  Following such a formula, virtually any software or business method claim can be rendered invalid.

And therein lays the fundamental problem with the Alice test -- its subjectivity.  While many claims that fail to meet the requirements of § 101 are more clearly abstract than claim 1 of the '261 patent, a reasonable application of the test to this claim -- one that considered the claim as a whole or involved defining claim terms -- might have come to the opposite conclusion.

Comments

[Paul Cole]

It is difficult to see how the claimed subject-matter can be regarded as an abstract idea, or even an over-generalised implementation of an abstract idea. The provision and function of the call appearance buttons appears to take the claimed subject-matter outside the realm of abstraction.

As quoted in the MPEP citing Gottschalk v Benson a process is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing. In this case the subject-matter to be transformed is a telephone handset having call appearance buttons and the result of the specified acts is to transform it into a different state in which stored identified telephone numbers can be redialled using the call appearance buttons. The claimed method does not lack utility because it conditions the telephone handset so that incoming telephone calls can be responded to in an ordered sequence. Consequently the claimed subject matter falls within the literal wording of the category "process" within Section 101. The claimed subject-matter falls within the "process" category as a matter of substance and not as a matter of mere appearance inter alia because of the specification of the handset apparatus and the call buttons. There is no pre-emption of the underlying idea because it is perfectly possible to conceive of alternative ways of handling stored incoming calls that do not rely on an ordered sequence of call buttons.

Regarding operations within a telephone handset as an "abstract idea" for the first part of the Alice test suggests an over-extension of the first part of that test. If the claimed subject-matter can be shown to fall within the plain meaning of one of the Congressionally-approved categories within Section 101, then extreme caution is needed in applying the judicially-created exemptions.

Hopefully the Federal Circuit will come to its senses and allow the expected appeal.

[EG]

Hey Michael,

Just more evidence of the utterly broken Alice test. Thanks again Royal Nine for mucking up our area of the law.

[Paul F. Morgan]

I was reminded by this claim of an old Signal Corps telephone switchboard where the operator knew from their plug locations or flashing light locations which were incoming calls from higher ranking sources that needed to be plugged through first. Unless there was some meat in the spec on the alleged computer enablement, is this yet another case in in which 101 is now being used for summary disposal of a patent claim that should not have issued under 103 and/or 112?

[Mike Borella]

@ Paul Morgan

Yes, 101 can be a proxy for 103 / 112, probably is here, and dismissing this case on the pleadings is quite problematic in my view.

[Mike Borella]

@ Paul Cole

I think these pre-Bilski claims fell because they didn't have enough meat on their bones in a post-Alice world. Nonetheless, I would like to see if the CAFC views this case differently. I think the judge made a number of clear errors that would be reversible.

[martin snyder]

EG, you sound like one of the jamokes in Oregon with their pocket Constitutions. You think the patent bar owns the law do you? And the Supreme Court should stay out of it, because you say so?

Both Pauls- I agree with you- Alice is a flawed test for eligibility. Its a solid (early) test for patentability.

Abstractness can be found at both levels, but requires different tests because it means different things. I have a paper on the subject here:

http://ssrn.com/abstract=2709289

[skeptical]

"you sound like one of the jamokes in Oregon with their pocket Constitutions"

That's a funny line coming from one who still does not recognize the legal terrain.

Publishing a paper with your view does not make that view a correct legal view. All that does is show that you are willing to bask in your (shall we say) less than understanding view.

I heard that you are no longer "in suit" - care to share the results?

[EG]

"You think the patent bar owns the law do you? And the Supreme Court should stay out of it, because you say so?"

Martin,

I said no such thing. But do consider that I've been ACTUALLY practicing patent law for over 38 years. There is no explicit exception for "abstractness" in the patent-eligibility statute (35 USC 101); that's improper judicial gloss being added by SCOTUS in Alice (and earlier cases) which is outside the express language Congress put into 35 USC 101. If you want to talk about "abstractness," you (as well as SCOTUS) should be looking to 35 USC 112, not 35 USC 101.

[Martin Snyder]

Good to see you here Sockie. EG I agree w you, read the paper.

[Paul Cole]

@martin Snyder et al

Firstly Martin: Thank you for the link to your interesting paper. All input on this topic is valuable.

Secondly more generally: One recurrent failure is to construe the statute before going into the judicial exceptions.

For example, in Myriad, gBRCA1 was not a composition of matter because it was neither a mixture of materials created by the hand of man nor a substance synthesized from simpler materials by the hand of man. If it qualified at all, it would have to fall within the "manufacture" category. However, it did not qualify as a manufacture because it did not meet the standards set out in Hartranft and approved in American Fruit Growers and Chakrabarty as regards novelty of form and new utility. So it is NOT a question of judicial exception but failure to fall within one of the statutory categories of Section 101. Judicial commentators who for decades have been treating the natural products exclusion as a judicial exception have been misclassifying the objection to the lasting detriment of our profession and of students in patent law.

Very similar considerations apply to the category "process". If you read the various opinions in Ariosa, there are serious arguments that the claimed subject-matter falls into the category "process" not just as a matter of outward form but of underlying substance. Similar considerations apply in the present case as I have set out above.

Legal reasoning that considers judicial exceptions BEFORE and WITHOUT considering the wording of the statute is reasoning that in the case of a student attempting first year law examinations should lead to a failing grade. I teach patent law, and am therefore in a position to know.

There are potentially interesting arguments concerning the relative ambits of the statute and the two part Prometheus/Alice test. But you do not reach those arguments UNTIL you have considered the claimed subject-matter in relation to the statute and determined that there is at least a prima facie case that it complies. It is not legitimate to short-circuit the making of the necessary statutory meaning determination and go straight to a determination based on the judicial exceptions because that leads to misleading and misclassified results.

[martin snyder]

Paul, to my knowledge, "process" has never been construed, at least by the Supreme Court. This is stated directly in the Bilski opinion and by implication in other instances...Stewart's short dissent in Flook is memorable for insisting that 101 is not the appropriate vehicle to find unpatentable abstraction ....

[Mike Borella]

@martin snyder

In 1877, the Supreme Court defined a process as "a mode of treatment of certain materials to produce a given result...an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing." Cochrane v. Deener, 94 US 780, 788 (1877). A process is patentable regardless of the instrumentalities used to carry out that process. Id.

[Martin Snyder]

Mike that passage is quoted in my paper- I read that as requiring a result, but not construing the character of that result- I see that distinction as the central point of Bilski.

[Paul Cole]

I am not prepared to say that it is a condition of being a "process" within section 101 that a thing must comply with Cochrane. It is possible that s.101 is broader than the Cochrane definition. However, if a thing complies with Cochrane, then it should fall within the literal meaning of "process" within s. 101.

The telephone set here is subjected to a series of acts performed on it which transform it to a different state which has utility in the handling of incoming telephone calls.

Cochrane is a Supreme Court decision dating from 1876.

[A Rational Person]

The reasoning applied by this court in this case could be applied to reject most chemical processes under 35 USC 101, with the modification that the court would say that the process is directed to a law of nature (instead of an abstract idea).

The rest of the reasoning would be pretty much the same, because in most chemical processes, the chemicals could be mixed, heated, separated, etc. by a human. Also, the mixing, heating, separating, etc. steps are all conventional.

A totally lawless decision in this case.

[EG]

Martin,

As suggested, I've downloaded your article and glanced through it. At first glance, some interesting thoughts, some of which I agree, others of which I do not. But I need to digest your article further before commenting on this post. Stay tuned.

[martin snyder]

Under my proposed doctrine, in Voxaton LLC v. Alpine Electronics, the process would be patent-eligible because 1) the result of the process is information 2) the consumer of the information is non-human (the telephone system).

Now is the process patentable? Are the claims drawn merely to the idea of remembering callers and presenting to an operator, or are they drawn so that one skilled in the art could complete the invention by reading the claims? Is there an invention under an Alice test applied to patentability?

I would say that these claims may have needed to go to a jury but are possibly obvious as a matter of law considering the state of the art of phone systems and computers at the time of invention- a district judge could have gone either way on requiring a jury or not.

In any case, I think the actual conclusion is a misreading of 101 and demonstrates the problems with the current Alice doctrine for all concerned.

[skeptical]

Mr. Snyder,

Your derogatory term is inappropriate.

Perhaps you are not at liberty to discuss your settlement. That would be one thing. But please, this forum has a higher expectation than other blogs.

My rejoinder to you remains the same: be able to separate out your emotions from your reasoning.

[The Memory Motel]

Voxathon argued that the claims disclosed an improved telephone set that solved problems in the prior art related to telephone calls going unanswered.

And Michael Borella swallows that argument hook line and sinker?

LOLOLOLOLOLOL

How does the claim solve this deep "problems", Michael?

This blog gets funnier all the time.

[skeptical]

Mr. Cole,

Your reasoning on legal reasoning is (of course) sound, but falls (literally) on deaf ears.

Both those in the judiciary, and in those of the "general commentators" group have already made up their minds without regard to the meaning of the statute.

An "Ends" have already been decided, and "logic" (or bothering with understanding the statute) be dammed if it gets in the way. To an alarming number of people, the "Means" to the ends do not mater, as the "Ends" justify whatever "Means" it takes.

[Grizzle]

The claim is laughable, as are the arguments that it is a patentable idea. Here is a slight rewording of the claim:

A method for recovering calls using an attendant having a predetermined number of lines of a notepad comprising:
receiving a plurality of incoming telephone calls from calling parties;
identifying a telephone number of the calling party of each incoming telephone call;
assigning each incoming telephone call to a next available line of the notepad of said predetermined lines of the notepad;
storing the identified telephone number associated with each incoming telephone call on the line of the notepad to which the incoming telephone call has been assigned; and
redialing, in response to the attendant's selection of one of the lines of the notepad, the stored telephone number of the calling party of the incoming call assigned to the selected line of the notepad.

The claim is nothing more than an immediately obvious implementation of what secretaries have been doing for years. How this ever got granted, even pre-Alice, is beyond me.

[EG]

"The claim is nothing more than an immediately obvious implementation of what secretaries have been doing for years. How this ever got granted, even pre-Alice, is beyond me."

Hey Grizzle,

If true, than invalidate under 35 USC 103, not 35 USC 101. Using the right section of patent statutes does matter, including having objective evidence (not subjective belief) in the record to prove such obviousness.

[Martin Snyder]

EG the problem is that forcing an accused infringer to spend a million bucks and three plus years of high anxiety to get to that determination is fundamentally unjust- as in, immoral.

The patent office failed and the public pays the price.

We need court procedures to get the easy cases (103 or otherwise) handled far earlier, reserving the truly difficult cases for juries and the full panoply of experts etc.

Weak information patents are economic weapons of mass destruction and destroy the legitimacy of a system carefully built up for 200 years. Its not a good scene.

[Paul Cole]

@ Skeptical

Not only do I respect your viewpoint, but also you have greatly helped my understanding of the problems raised by the overlap between what is statutorily included and what is judicially excluded.

The political situation in the US and broader judicial attitudes are beyond anything in my power, especially as I start from London, not Washington.

However, in my submission correct legal analysis and better advocacy could do much to remedy the present situation. If we look at the CAFC Ariosa panel decision, the two judges who wrote the majority opinion, though legally qualified and experienced in judicial procedure, had not previously worked on patents and were not technically qualified. When you go to the Supreme Court you are dealing with judges who are inexpert both technically and legally so far as our specialised field is concerned, though we are here speaking of people of great ability and abundantly deserving of respect (apologies to EG here!).

I have yet to meet a US judge who is prejudiced or likely not to decide a case as objectively as possible on its legal and factual merits. But if the judges are inexpert in our specialised field (which is forgivable) or predisposed to hand down decisions which make medicaments and biological tests available to the US public at lower prices (a populist cause), then we need advocates who can effectively put the case for the patent system and for the particular patent before the court, and will start with a correct legal analysis and not from some of the misleading shortcuts seen in recent opinions. For example, it amazes me that in the oral argument on Myriad the Hartranft case was not mentioned despite the fact that its reasoning was central to the whole debate, as Justice Thomas correctly figured out. You don't see why the Justices were talking about bits of wood cut from trees in that case without knowing about Hartranft, and mention of it by the advocates would have inspired confidence amongst readers of the transcript that the advocates really understood what they were talking about and had a grip on the case both legally and factually.

@ Grizzle
It helps concentrate the mind to figure out the legal issue the case is about. Blathering on about obviousness is utterly irrelevant if what the Court was considering is eligibility. The question is whether the claimed subject-matter is a process within the meaning of the statute, not whether if you think a bit more about it and perhaps adduce some evidence you might be able to make out a section 103 objection.

[skeptical]

I do have to chuckle (sadly) with Grizzle's post coming directly after my own - and proving the very point that I was making with Paul Cole.

The "sound byte" world of anti-patent fervor has all but eliminated the notion of critical thinking and applying the statutes as written by Congress.

Instead, we have this non-critical type of "bah, that cannot be a patent anyway - so it just does not matter how the law is applied, so long as the ends are met" type of nigh constant rhetoric.

As a blog concerned with law - presumably visited by those with an appreciation of law - this type of drum beat nonsense should raise our collective ire. This is not nearly so much a matter of "hearing the viewpoint of others" as it is recognizing when there is a lack of critical thinking. Embracing such a lack under any guise (be it some notion of inclusiveness of the views of others or otherwise) is not an advance.

[EG]

"We need court procedures to get the easy cases (103 or otherwise) handled far earlier, reserving the truly difficult cases for juries and the full panoply of experts etc."

Martin,

We do have such a procedure: it's called a motion for summary judgment which is in accordance with "due process" and in which you can submit some evidence for/against such a motion. You can't simply bypass such "due process" (that's in our 5th Amendment) simply because of alleged inefficiency or cost of litigation.

[EG]

"Weak information patents are economic weapons of mass destruction and destroy the legitimacy of a system carefully built up for 200 years. Its not a good scene."

Martin,

I've yet to see any credible evidence or study that suggests the above statement has any factual support. What I've seen suggests the opposite: a PR-driven effort (including by large multinational companies) based upon flawed studies/evidence that undermine our patent system, including protecting legitimate efforts to protect the IP information processing.

[Gene]

"This is yet another example that tracks a familiar trend in § 101 jurisprudence: (1) a claim is viewed at a 10,000 foot level to remove from it all devices and machines"

the claim is written from a 10,000 foot level. hence the courts have no option but to discuss it a 10,000 foot level. seriously, my grandmother, who never went to high school in her home country, uses language like this when talking about technology. the drafter of this claim might even use language like "a user takes a PC and goes to a website . . ." a patent attorney expects to obtain valid claims using such colloquial language? you cannot get to 102, 103, to compare functions performed by generic devices.

[martin snyder]

EG,

The problems are lived experience by any number of business people. There are many, many testimonials easily found that are not figments of a PR effort. If you read the RPX digest every day, and look at the suits and the claims, you will directly notice that there are essentially two kinds of patent actions.

Your response of total denial is like climate change deniers et al. Certainly its possible the problems are not as bad as some state, but it's simply unreasonable to chalk them up as whole fiction.

As to Summary Judgment, that happens post discovery, post expert and at the 80%+ mark of district litigation cost. You can see as much in the AIPLA Summary of the Economic Survey.

The easy cases need to go at the Markman stage- I believe 101 12(b)6 motions are not the proper vehicles - but this is tied up with the reality that abstract ideas are different at eligibility than patentability, surely for information inventions, as I explain in my paper.

Disregarding very real injuries to innocent people historically is a loser for the side holding to that view. You may want to reconsider your position on that.

[A Rational Person]

Skeptical,

Further to your point, I once again quote from Robert Bolt's "A Man for All Seasons"; eople seem to be a lot more willing to live in a lawless society than I am:

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast — man's laws, not God's — and if you cut them down — and you're just the man to do it — d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

[EG]

" You may want to reconsider your position on that."

Martin,

Sorry, but I can't and won't do that. Nor am I in "denial" as you suggest, or saying there aren't egregious cases. Are there issues with our litigation system, including discovery? Of course, but they aren't confined to patent litigation world, actual or threatened. Ask anyone (especially drug makers and doctors) who are on the receiving end of a personal injury, products liability, or medical malpractice actions. (You need only see the TV ads by PI/PL/MM liability firms to see how prevalent those are.) Is anything being done about those egregious situations? Of course not, because the lobby for such litigation is well-financed, far mores so than that involved in patent litigation.

Also, what you ask for requires the 5th Amendment "due process" clause, as well as the 7th Amendment "right to trial by jury" to be abrogated. That has about a "snowball's chance in hell" of happening. BTW, I don't deny that climate change can happen due to human impact, but I do find it curious that those who do make legitimate challenges (including exposed known "fudging of the facts") are excoriated for doing so.

[martin snyder]

EG, personal injury, products liability, or medical malpractice actions are virtually universally covered by insurance. Funny thing about insurance; it protects people from terribly painful losses.

How commercial general insurance liability firms escaped from covering non-willful infringement actions is an amazing thing in and of itself, but it's nearly impossible to insure small businesses for patent actions, so the pain is felt most directly. So patent cases cannot fairly be compared to those actions.

As for due process; when a patent issues that shouldn't, it's the public who has been deprived of due process. Clearly the law supports judge-determined outcomes in many instances without loss of due process- many claims are obvious or abstract on their face and could be disposed of without any loss of due process, on balance.

As for climate change, making a "legitimate" challenge would make a scientific career. Dust-kicking ain't that kind of challenge.

Many people have gotten the shaft as a result of a patent system run amok. Deny it all you want- it's a dead end position to hold and wont help your cause.

[Mike Borella]

@martin snyder

"How commercial general insurance liability firms escaped from covering non-willful infringement actions is an amazing thing in and of itself, but it's nearly impossible to insure small businesses for patent actions, so the pain is felt most directly."

A quick Google search provides many hits for patent liability insurance. As you saying that patent infringement should be covered by general liability policies? Because it seems that you can obtain specific coverage for infringement liabilities.

[skeptical]

Mr. Snyder,

Your "but I don't have THAT type of insurance" response misses the point.

The "ill" you want to point a finger at is NOT a patent ill.

Once again, I advise you to separate your emotion here, as it clouds your ability to reason.

As for the rest of your "mob-based" anti-patent "reasoning" (as well as your "notion" of due process), well, Paul Cole's lament about lack of critical thinking is again (sadly) confirmed.

[EG]

"Many people have gotten the shaft as a result of a patent system run amok. Deny it all you want- it's a dead end position to hold and wont help your cause."

Martin,

I deny nothing; you're entitled to your opinion and I to mine. BTW, those who have gotten the "shaft as a result of a patent system run amok" tend more to be those small, innovative businesses that rely upon patent protection to compete with the Big Boys (aka large multinational corporations). Those Big Boys through the AIA (Abominable Inane Act), including IPRs, through SCOTUS making injunctions almost impossible to obtain, as well as creating a subjective standard for patent-ineligibility standard that can't be applied evenly, etc., have imperiled small, innovative businesses from having their IP stolen by those Big Boys. Just ask Paul Morinville who would likely disagree with you as to which way the "patent system has run amok."

[martin snyder]

EG, again, if you read my paper I decry the loss of justice for inventors as well at the public- consider the Stanacard case et al. where a non-obvious method that was a real improvement- what is likely almost anyone's idea of an "invention" was tossed on 101 grounds- and the doubtless other fine inventions that have been tossed on 101 grounds at the patent office because the construction of the law is so muddled.

Sockie, you keep sayin my emotion clouds my reason. To that I say; emotion and reason are inseparable and to apply law without regard for human emotion is immoral-and certainly not aligned with the ideals of justice. Furthermore, I feel terrific - as clear as my declining faculties are likely to ever be.

Why don't y'all price out IP insurance and see if its in the practical realm for small businesses. It is not.

The reason that the baby is going out with the bathwater in too many cases is because of the real, actual harms suffered by litigation abuse and plain bad patents.

Denial ain't gonna help the baby folks.

Fixing the law ain't likely gonna happen in a dysfunctional system- it just gets worse every time Congress touches it. It was finely balanced after 200 years, but the Information Age tipped it.

The problem is in the doctrine around information inventions. It has to be fixed, and I intend to do what I can to help fix it.

[A Rational Person]

"Clearly the law supports judge-determined outcomes in many instances without loss of due process- many claims are obvious or abstract on their face and could be disposed of without any loss of due process, on balance."

Martin,

A judge could decide that a person given a a 5 MPH over the limit speeding ticket should be thrown in jail for 3 years, because the judge has reviewed the person's record, believes the person is a bad person and therefore should be thrown in jail to "protect the public". That's still not "due process."

"Due process" involves respecting the laws passed by democratically elected legislatures and not just deciding cases based on "gut feelings" as has been done in Alice, Mayo and their progeny.

Also, what is your evidence that "many claims are obvious or abstract their face"? There is no definition of the term "abstract" with respect to claims in Title 35 and the Supreme Court has provided no definition of the term Abstract. So by what objective criteria could a judge, jury, or Patent Examiner determine that a claim is "Abstract" on its face?

Are you suggesting that judges should be free to make decisions without considering the evidence necessary to properly make those decisions?

How could any "legal system" worthy of the name operate without judges considering the evidence necessary to make a legal determination?

[skeptical]

Due Process does not work on a "on balance" process.

This is nothing more than Mr. Snyder's imagination of "what is REALLY fair in the world according to Mr. Snyder."

[Martin Snyder]

"There is no definition of the term "abstract" with respect to claims in Title 35 and the Supreme Court has provided no definition of the term Abstract. So by what objective criteria could a judge, jury, or Patent Examiner determine that a claim is "Abstract" on its face?"

Yet patents are invalidated virtually daily for being abstract.

I define objective criteria for abstraction at eligibility- it's consumption of information by a human being. That is missing from current doctrine and should be added.

Abstraction at patentability is another inquiry, and should also be added to current doctrine.

At patentability, abstraction is a mixture, unique to each set of claims, of a predictable result (103) or description of a result rather than a specific means to achieve it, (112) or a specific means to achieve the result that is not new (102).

When the abstraction call is reasonably easy, the judge makes it.

When the call is difficult, the claims then need to directly fail for a certain patentability flaw within 102, 103, or 112, thus they are not abstract at patentability, but they just fail, either at MSJ or trial.

All of it goes to the CAFC anyway.

None of which deprives anyone of due process.

Troll away Sockie, or you can pick it up over in the thread at PatentlyO and we can leave this one be.

[skeptical]

You continue to use "sockie" in an inappropriate manner Mr. Snyder.

Further, there is no "trolling" of you.

It is more than a bit odd that you are now "Claiming" NO deprivation of due process, and yet my comment immediately above is to a VERY different statement of yours concerning a very real lack of due process - but one that (somehow) would "even out" on "balance."

I am not interested in "trolling," but I am interested in actual on-point answers to my questions (I figure that you have a no-discuss clause in your now closed suit, so I can let that remain a non-answer).

Your move.

[A Rational Person]

"Yet patents are invalidated virtually daily for being abstract."

Yup, and it's totally, subjective and lawless decision every time. Doesn't make it right or just.

"I define objective criteria for abstraction at eligibility- it's consumption of information by a human being. That is missing from current doctrine and should be added."

Your definition of the term "abstraction" can be found in no dictionary or statute that I can find.

"Abstraction at patentability is another inquiry, and should also be added to current doctrine."

You believe so. Many others, including the many patent professions, including Manny Schecter the Chief Patent Counsel for IBM, disagree:

http://www.ipwatchdog.com/2016/01/03/wishes-2016/id=63916/

I would suggest Mr. Schecter knows at least a little bit more about patents and patent law than you do.

"At patentability, abstraction is a mixture, unique to each set of claims, of a predictable result (103) or description of a result rather than a specific means to achieve it, (112) or a specific means to achieve the result that is not new (102)."

This definition of the term "abstraction" can be found in no dictionary or statute that I can find.

"When the abstraction call is reasonably easy, the judge makes it."

Determining if the call is "reasonably easy" is subjective determination and would, therefore, necessarily be prone to abuse by judges.

"When the call is difficult, the claims then need to directly fail for a certain patentability flaw within 102, 103, or 112, thus they are not abstract at patentability, but they just fail, either at MSJ or trial.

All of it goes to the CAFC anyway.

None of which deprives anyone of due process."

Sorry

Troll away Sockie, or you can pick it up over in the thread at PatentlyO and we can leave this one be."

In the immortal words attributed to Wolfgang Pauli: "Not even wrong."