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July 22, 2019


What a pity there is no patent family with a member at the EPO. For any European reader, the notion that this claim is nothing more than an abstract idea is very curious.

Often, it helps to find the most reasonable prior art starting point (D1) for solving the objective technical problem, and then arrange the claim in default EPO "characterized in that form" relative to D1. Sometimes that exposes the claim as unfit to proceed to issue. But here, might it not do the opposite?

Hey Joseph,

This ruling is absurd on its face. How, pray tell, can a camera (a device) be abstract? This judge needs to be rebuked, as well as reversed for such an idiotic ruling.

The "ping-pong" continues...

(Senator Tillis, please take note)


How, you ask, can an objective physical structure be abstract?

How soon you forget: there were claims IN ALICE ITSELF that both sides of the matter had stipulated as BEING "objective physical structure" (and being in one of the statutory categories that includes objective physical structures).

The Court DID NOT CARE, and has basically re-scrivened their "exceptions" to make the two prongs of 35 USC 101 (as a reminder, these two prongs are the purposefully LOW bar of having the innovation written in at least one of the statutory categories AND having a utility within the Useful Arts) meaningless.

In other words, the actual words of Congress can well be FULLY MET, but the Court has inserted its own non-statutory exception such that items fully meeting the actual words of Congress are DEEMED "Abstract" (whatever that may mean, as the Court has ALSO neglected to provide an actual "objective" definition of THAT term).

Welcome to violation of separation of powers.
Welcome to void for vagueness.
Welcome (as well, although not directly at point here) to ultra vires advisory opinion, based on the fact that the Court "anchors" its authority on a mere "MAY happen" line of reasoning, which given the plain meaning of "MAY" includes the notion of "may NOT."

So while the District Court may certainly be blamed for the farce of the decision presented, they are also certainly NOT the only ones to blame, nor are they the progenitors of the "legal logic" at the root of the problem.

In a sane world, this decision would be a parody of a certain sort of rhetorical exaggeration perpetrated by the EFF. Instead, this is an actual act of an actual court, with actual legal effect and actual foundation in (absurd) controlling precedent. We have truly gone down the rabbit hole. Hopefully, Congress will clear up this mess soon.

Gott im himmel.

If you abstract it sufficiently, anything is abstract.

Sweet fancy Moses.

Yet another patentability decision that sidesteps patentability analysis in the name of eligibility.

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