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April 17, 2018


Hey Joseph,

Another botched application of the nonsensical Mayo/Alice framework. What was described and claimed was clearly a machine, one of the statutory classes of subject matter. That should been the end of the 101 story and a denial of the SJ motion.

It isn't so simple as just branding the eligibility approach "nonsensical". For example, under the EPC, methods of playing a game are per se ineligible. Yet whereas the UK Supreme Court filters out such subject matter under the eligibility filter, the EPO uses the obviousness filter to dispose of claims like this one. Each says the other is intellectually dishonest. But both get to the same result.


Alice itself clearly had claims that both sides of that case agreed met the statutory category portion of 35 USC 101.

The only other portion of 35 USC 101 is the utility requirement (is the innovation of the proper utility, that is, does it pertain to the Useful Arts or to the Fine Arts).

ALL ELSE is ultra-vires judicial mockery and law writing by a branch of the government to which NO allocation of authority to write the statutory law that is patent law has been made.

When the "bench" of the government (self-appointed) to be the "watchdog" of Constitutionality is itself the entity disregarding Constitutionality (separation of powers, no advisory pronouncements - and ANY futuristic 'inkling' of what MAY impede progress is necessarily an advisory opinion) who is there to speak up?

Congress? Sorry, but no, the bread and circus captured body that is Congress is too busy "listening" to the voices of the juristic person known as the corporation. Who as it happens is largely the same voice of the Efficient Infringers.

Will things get better without first getting immensely worse?

Sadly, I am:


Please tell me that you do not ascribe to the view that the Ends justify the Means.

"It isn't so simple as just branding the eligibility approach 'nonsensical.'"


I completely disagree. The problem IS SCOTUS' nonsensical Mayo/Alice framework, having no basis in the patent statutes, ignoring 35 USC 112 which acknowledges that the invention is defined by the claims (and per Diehr, as "a whole"), not some made-up "directed to" malarkey foisted on us by SCOTUS, and even worse, deeming claimed subject matter as an ineligible "abstract idea," but never, never having the courtesy (or courage) to define in Alice or any other SCOTUS decision what, pray tell, that phrase means. No wonder there is so much uncertainty and chaos in the U.S. patent system. If it were up to me, SCOTUS would (and should) be stripped of any appellate review of patent cases.

EG, let us distinguish between the 101 "framework" as you call it, and the detail (the "meat") with which the lower courts are required to clothe the "bone", by which I mean the "framework" tossed to them by SCOTUS.

There has to be an examination of what is eligible under 101, just like there has to be a test of what is eligible in Europe, under Art 52, EPC.

One way to do it is the EPO way, eschewing any consideration of what is the contribution to the art to be found in the claim.

Another way to do it is the English way, asking whether the contribution is within the ambit of the useful arts.

As 35 USC 101 includes the word "new" and is confined to the useful arts, the English way strikes me as fitting better to the USA than the EPO approach to Art 52 EPC.

As to whether the implementation of the "framework" is sensible or nonsensical, people differ.

I have no time on a busy working day to go into this case in detail.

But I cannot help noticing that Konami took a chance and evidently did not win the jackpot.

It mostly happens for machines of this type.


Great idea ( ;-) )

To that idea, may I remind all that the Constitution itself provides Congress with the ability to apply jurisdiction stripping? that patent appeals are not a matter of original jurisdiction of the Supreme Court (a predicate for jurisdiction stripping being met)? and that as long as a new Article III court is created (the current CAFC is a dysfunctional, brow-beaten mess), then the Supreme Court case of Marbury remains met (judicial review is reserved to the branch of the government identified as Article III and does NOT require judicial review by the Supreme Court itself).

Sadly, the better question is would Congress recognize its power to do what (should) be done?

I remain:

Hey Skeptical,

Glad you like my thought on jurisdiction stripping. And the precedent is there to do so with respect to SCOTUS hearing patent cases. When the predecessor to the Federal Circuit, the Court of Customs and Patent Appeals (CCPA), was created, there was no provision for appeal of a CCPA decision to SCOTUS. That provision was only added later.

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