C R Bard Inc. v. AngioDynamics, Inc. (Fed. Cir. 2020)

By Michael Borella --

One of the more intellectually dishonest aspects of current patent eligibility law is that it allows one to ignore certain claim elements when evaluating claims under 35 U.S.C. § 101.  In Mayo v. Prometheus, it was stated that once one has identified a judicial exception to patentability (e.g., a law of nature, natural phenomena, or abstract idea) in a claim, further claim elements that are "well-understood, routine, conventional activity [that] when viewed as a whole, add nothing significant beyond the sum of their parts taken separately" essentially have no patentable weight in the eligibility inquiry.  This is despite the Court's acknowledgement that Diamond v. Diehr stood for the notion that claims "must be considered as a whole."[1]

Further, the Supreme Court never dug into the details of whether or how this holding should be squared with prior art analyses under §§ 102 and 103.  The Mayo opinion asserted that "in evaluating the significance of additional steps, the § 101 patent-eligibility inquiry and, say, the § 102 novelty inquiry might sometimes overlap."  But the nature of this overlap was not explored.  Instead, in both Mayo and the subsequent Alice v. CLS Bank decision, the "well-understood, routine, conventional" test appears to allow judicial notice that certain claim features are so generic that one need not provide any factual evidence that this is the case.  The Federal Circuit has attempted to rectify this matter in Berkheimer v. HP, holding that -- in at least some situations -- the § 101 analysis involves underlying factual matters of whether elements are "well-understood, routine, conventional."

And yet, the division of claims into "judicial exceptions" and "additional elements" can be tricky, as can knowing when one should ignore certain elements.  And the Federal Circuit has not provided clear guidance.  It is common to view a claim at a high level (and therefore ignore at least some of its elements) to declare the claim to be directed to a judicial exception.  In some cases, claims have been found to be directed to an exception because what they recite assumed to be known, and in other cases additional elements have been found to incorporate further exceptions that were subsequently ignored.

The problem with this element-oriented, reductionist approach is that it obscures the actual invention being considered.  There was wisdom in Diehr's instruction to study the whole claim because inventions consisting of nothing but judicial exceptions and well-understood, routine, conventional additional elements are some of the most important to our current and future economy (e.g., cryptography, machine learning, quantum computing, diagnostic methods, analysis of genetic sequences).  The value is in the combination of these features, not the features in isolation.  Ignoring any claim element under § 101, without a very good reason,[2] does violence to the invention.

As we will see, the printed matter doctrine is another avenue in which claim elements can be discounted.

Bard launched an infringement action against AngioDynamics in the District of Delaware.  At issue were Bard's U.S. Patent Nos. 8,475,417, 8,545,460, and 8,805,478.  As a representative example, claim 1, of the '417 patent recites:

An assembly for identifying a power injectable vascular access port, comprising:
    a vascular access port comprising a body defining a cavity, a septum, and an outlet in communication with the cavity;
    a first identifiable feature incorporated into the access port perceivable following subcutaneous implantation of the access port, the first feature identifying the access port as suitable for flowing fluid at a fluid flow rate of at least 1 milliliter per second through the access port;
    a second identifiable feature incorporated into the access port perceivable following subcutaneous implantation of the access port, the second feature identifying the access port as suitable for accommodating a pressure within the cavity of at least 35 psi, wherein one of the first and second features is a radiographic marker perceivable via x-ray; and
    a third identifiable feature separated from the subcutaneously implanted access port, the third feature confirming that the implanted access port is both suitable for flowing fluid at a rate of at least 1 milliliter per second through the access port and for accommodating a pressure within the cavity of at least 35 psi.

The invention is directed to "vascular access ports, which are devices implanted underneath a patient's skin that allow medical providers to inject fluid into the patient's veins on a regular basis without needing to start an intravenous line each time."  Notably, "the FDA cautioned medical providers in 2004 and 2005 that they should not use vascular access ports for power injection unless the ports were specifically and identifiably labeled for such use."  Accordingly, Bard developed such identifying labels for its ports, which the Court described as follows:

The primary identifying feature Bard developed was a radiographic marker in the form of the letters "CT" etched in titanium foil on the device.  This marker could be detected during an x-ray scan such as the "scout scan" typically performed at the start of a CT procedure.  Other identifiers incorporated into the device included a triangular shape and small bumps that were palpable through the skin.

In any event, the District Court judge asked a magistrate to help determine whether the identifiable features of the claims should be given patentable weight in view of the printed matter doctrine.  The magistrate "determined that these limitations were not entitled to patentable weight because they were directed to the content of information that was not functionally or structurally related to the claimed ports."  The judge went with this conclusion.

At the end of the trial, AngioDynamics filed a JMOL motion, and the judge asked the parties whether this printed matter issue was ripe for decision.  While the parties did not come to an agreement, the judge terminated the trial and granted the JMOL.  Among other rulings, the judge found the claims "invalid because they were directed to printed matter as ineligible subject matter and were not inventive."

Regarding this § 101 issue, the Federal Circuit began its analysis by acknowledging that printed matter has long been held to fall outside the scope of patentable subject matter.  In particular, "printed matter encompasses any information claimed for its communicative content, and the doctrine prohibits patenting such printed matter unless it is functionally related to its substrate, which encompasses the structural elements of the claimed invention.  Thus, the main concern is whether "the printed matter merely informs people of the claimed information, or whether it instead interacts with the other elements of the claim to create a new functionality in a claimed device or to cause a specific action in a claimed process."

As examples, the Court has previously decided that markings on dice have no functional relationship with the dice themselves.  On the other hand, digits printed on a circular band exploited the band's endless nature and made it useful for performing mathematical operations, and thus there was a functional relationship between the two.  Likewise, volumetric indicia on a measuring cup made the cup useful for measuring partial recipes.

In this case, the parties stipulated that the claimed identifiable features constitute printed matter, but disagreed over whether these features are functionally related to the port.  Bard contended that "the information conveyed by the markers provides new functionality to the port because it makes the port self-identifying."  The Court did not buy into this point, as "mere identification of a device's own functionality is sufficient to constitute new functionality for purposes of the printed matter doctrine" would eviscerate the doctrine.

Turning to the subject matter eligibility issue, the Court admitted that, since Alice, it had not "directly addressed whether a patent claim as a whole can be deemed patent ineligible on the grounds that it is directed to printed matter at step one and contains no additional inventive concept at step two."  But it found reason to do so here, as such a position is consistent with its prior holdings that "the mere conveyance of information that does not improve the functioning of the claimed technology is not patent-eligible subject matter under § 101.  Notably, the Court pointed to the claims found ineligible in Two-Way Media Ltd. v. Comcast Cable Commc'ns, LLC, Elec. Power Grp., LLC v. Alstom S.A., and Digitech Image Techs., LLC v. Elecs. for Imaging, Inc. as examples that stand for the principle that the processing of information does not improve the functioning on a computer.

Applying these notions to Bard's claims, the Court found that "the focus of the claimed advance is not solely on the content of the information conveyed, but also on the means by which that information is conveyed."  Particularly, the claims address "a specific need for easy vascular access during CT imaging, and it is the radiographic marker in the claimed invention that makes the claimed port particularly useful for that purpose because the marker allows the implanted device to be readily and reliably identified via x-ray, as used during CT imaging.  With respect to the Alice framework, the Court concluded that there was insufficient evidence that "the use of a radiographic marker, in the ordered combination of elements claimed, was not an inventive concept."  Notably, "[e]ven if the prior art asserted by AngioDynamics demonstrated that it would have been obvious to combine radiographic marking with the other claim elements, that evidence does not establish that radiographic marking was routine and conventional under Alice."  Thus, in accordance with Berkheimer, not all obvious elements would also be routine and conventional.

Therefore, the asserted claims are patent-eligible because they are not solely directed to printed matter.

One of the subtle points of this case is that the Federal Circuit seems to be equating printed matter with the notion of an abstract idea under step one of Alice.  Therefore, if a claim includes printed matter, it would have to also include additional elements that amount to significantly more to be eligible.  One way of establishing that this is the case is if the printed matter, in combination with the additional elements, provides functionality that the additional elements on their own do not provide.

But taking this a step further, printed matter doctrine provides more opportunities to ignore claim elements.  While that did not happen in this case, it would not be surprising for this holding to be expanded in a way that provides yet one more avenue for to do so.  It is conceivable that some courts could apply the doctrine to user interface claims in an attempt to establish that at least some of the displayed information therein is not related to the functionality of the computing system, thus rendering those claims ineligible.

C R Bard Inc. v. AngioDynamics, Inc. (Fed. Cir. 2020)
Panel: Circuit Judges Reyna, Schall, and Stoll
Opinion by Circuit Judge Reyna

[1] The Court attempted to synthesize this apparent contradiction between Mayo and Diehr by stating that "[b]ecause the approach we made explicit in Mayo considers all claim elements, both individually and in combination, it is consistent with the general rule that patent claims must be considered as a whole."  But in practice, the consideration of claim elements in combination was and is given short shrift. 

[2] Elements that are redundant with other elements and preambles reciting intended use are examples in which parts of claims can be disregarded.

Comments

[MaxDrei]

I hope to see a long and thoughtful thread of comments because this case has a lot in it. The consequences of pressure-injecting contrast fluid into a subcutaneous port not able to withstand the pressure could be seriously adverse to the patient. If the claimed subject matter solves this technical problem in a non-obvious way, then, for me, it is patent-eligible and patentable and deserves a patent. Even if the judge subjectively and with the benefit of hindsight comes to the view thinks the claimed subject matter 8not just the technical problem but also its technical solution) is plainly obvious, that's no excuse for waving the patent owner away with a slew of other dodgy arguments. Isn't this what the Federal Circuit is here telling the judge?

[skeptical]

MaxDrei,

Is the resolution of ANY problem ( phrased like this as the question may encompass a spectrum that includes technical, business, Useful Arts) one that DESERVES patent protection if that resolution is strictly a communication of information?

Is this not then merely a patent on the information itself?

Of possible distinction here is the statutory category of the claimed patent.

One may hold a different view of a patent that falls to the process category as opposed to a product category.

This may be because "information" is NOT a process, and most all processes can be viewed in some essence to INVOLVE information in one way or another (and the tie to this understanding can even be stated to necessarily derive from the patent concept of Utility in and of itself). Process - in other words, 'doing' easily envelopes doing WITH things as well as doing WITH information. Process claims are not claims to the things, nor are they claims to the information.

The instant claims are not to a process, that process being one to resolve your stated consequence.

Quite in fact, the actual claim here does NOT forclose the UNdesired consequence from happening.

Let that soak in.

There is NO positive prevention of improper operation, merely because a type of information may be conveyed in a particular manner under a certain process (the process of using x-rays).

Here, the claim could be infringed by an item in and of itself, even as (unclaimed) and improper use (for example, use without bothering to use an X-ray reader, use of an X-ray reader by someone not trained to read or understand the INFORMATION that an X-ray reader would provide, or a host of other aspects nowhere indicated in the claims) does NOT provide the benefit/utility that you might want to read into the situation.

On the other hand, there is a long history (and rightfully so) of items that ARE useful and have utility, but whose value does NOT come innately from the item itself, but instead, ONLY comes from the use of -- and dependence upon INFORMATION associated with said use.

An easy historical example comes readily to mind: the traffic light.

In essence, ALL that you have is a simple device that can be made to flash three different colors in a predetermined sequence.

The ONLY way that any actual utility arises comes from extrinsic factors of SETTING the information content (meaning) of the physical attributes.

One (critical) aspect of course is the relation of any such 'information' to the substrate involved.

Of special note, software EASILY skates by this concern, because the undeniable nature of software is -- as a design choice of wares in the computing arts -- NECESSARILY tied to functionality of the substrate. If such were not there, then the ENTIRE notion of softWARE would never even be entertained.

But what of traffic lights (and countless other innovations that depend on extrinsic factors of what information may be dictated to mean in order to provide utility)?

[MaxDrei]

anon, you will not be surprised to read, in my reply, that I am in such thrall to the EPC and the EPO approach to "the presentation of information" that I find it impossible to engage with your writings.

At the EPO, the presentation of information "as such" is narrowly excluded from eligibility. A coffee mug, for example, that presents on its radially outward facing surface a new and ingenious and amusing pictorial instruction how optimally to get the best out of the action of drinking coffee from a mug.

Broadly, the EPC recognises patentability in a new combination of technical features which non-obviously solves an objective technical problem.

Here, I find it to be the case that the claimed subject matter does indeed solve a technical problem (CT patients would immediately agree) so cannot be dismissed as nothing more than the presentation, as such, of information.

I think it a shame, that the conundrum of "information" is not so easily resolved under US law.

[Michael S. Borella]

Here's a question for everyone. In the article, I wrote that the "Court has previously decided that markings on dice have no functional relationship with the dice themselves." This is a reference to the 2018 In re Marco Guldenaar Holding B.V. case, which was also written up on Patent Docs.

After sleeping on it, I'm not sure that I see a distinction between the dice in Guldenaar and the port here. In Guldenaar, the Court stated that "the printed indicia on each die are not functionally related to the substrate of the dice." This doesn't seem right, as without markings, a die has only blank sides. The markings are the functional utility.

So maybe someone can explain why dice markings are not functionally related to their substrate while the port markings are.

[MaxDrei]

Michael, I can't.

Which to my mind only goes to show that "functionally related" is, as a litmus test of eligibility, next to useless.

But let's wait and see what others say, eh?

Put it another way: suppose we go back in time to the days before game playing six-sided dice were invented. A claim to a cuboid with different marking on each of the six sides would presumably be patentable over prior art unmarked cuboids, no? The markings provide the patentability, right?

[Martin Snyder]

Michael, here is a major point of law about which even you- a person steeped in that very law- experiences an honest befuddlement about the best way forward. The question about the dice is perfectly representative of the problem.

Very clearly the 20 most important minds on this- 11 at CAFC and 9 at USSC- are also of 20 different opinions.

Both the Patent Act and the common law are currently inadequate to solve the problem. Because of the technical nature of patent law, legislative tinkering is rare and usually just makes things worse.

I will summarize my concepts here briefly, but I invite you again to review this paper:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2709289

The dice question, like the radiographic marker question, like so many other 101 questions, is really a question about information. We are in the information age, yet the common law and Patent Act do not address information as a form of materiality or the positioning of information within the various requirements to obtain a patent.

What is information?

in·for·ma·tion
/infərˈmāSH(ə)n/ noun:

1.
facts provided or learned about something or someone.

2.
what is conveyed or represented by a particular arrangement or sequence of things.

3. data as processed, stored, or transmitted by a computer. (in information theory) a mathematical quantity expressing the probability of occurrence of a particular sequence of symbols, impulses, etc., as contrasted with that of alternative sequences.

How to we harmonize the facts of life in regards to information with the current structure of the patent act and the common law?

It's actually not that hard. If we look at the judicial exceptions for subject matter, we can lump laws of nature and abstract ideas together- because both of those exceptions are always composed of nothing but information.

Natural phenomena are not nearly so difficult to deal with, nor so common, by orders of magnitude, because that term implies some chemical or mechanical change, rather than pure information.

Likewise for the three statutory categories that are not Processes. If we can manage to limit processes without judicial rewriting of 101 in accordance with Bilski while also handling laws of nature and abstract ideas, we would be a long way to a better place.

To do so, we have to regain control of the subject matter inquiry by limiting it to a threshold question rather than a substantially overlapping 103 or 112 determination, done on the fly under the flag of Alice with I Know It When I See It being the operating legal standard.

The whole concept of categories is that we can slot items into them without looking at the item's particulars. In other words, looking at factors extrinsic to the item. There has to be intrinsic to the item to fit it to the category.

With information, it's ALL abstract. But some inventions are intrinsically abstract, and some are not. Those that aren't may still be too abstract to patent, but that's a DIFFERENT kind of abstraction. Obviousness and written description are extrinsic to the invention.

So what is abstraction? At the most basic, its the hosting of a symbol in a human mind. No human mind, no abstraction. Information is, among other things, made of symbols. When a human being rolls the dice, the numbers that result have human meaning. When a non-human actor rolls the dice, the numbers that result are machine components. The dice themselves- both the wood and the numbers- are mere vehicles to carry the symbols.

What matters to the invention is who is using the information, if the result of a process is nothing but information. If the utility of the information is realized when consumed by humans for human purposes, the invention is intranasally abstract and should not be subject matter of a patent. If the information is consumed by non-human actors to achieve some level of utility, the invention is intrinsically non-abstract.

Yes, all utility is eventually consumed by human beings, but that's a pointless construct. A sharper knife is better because it cuts better, not because it helps you enjoy your steak more easily or on up the chain The issue is the immediate utility of information, because new and useful information is economically and technically valuable in the information age.

The problems of "do it on a computer" inventions are not really subject matter problems. Squeezing them into 101 is a mistake. Alice is actually a useful 103 /112 inquiry for information inventions because the extrinsic factors around an information invention are plentiful and important- especially identifying the actual field of endeavor and the PHOSITA.

The instant case is easy in my scheme. If the invention were an improvement to the vehicle- a new and better way to make radiographic symbols, independent of their meaning, then it would be eligible, subject to 102/103/112.

If the invention is based on the specific information conveyed to persons, in this case the flow rate of the implant, it's intrinsically abstract and should be ineligible.

If the radiographic flow rate determination were an intermediate step in some method where that information was being used by a non-human actor, the step would not compromise the eligibility of those claim elements- because no human mind, no abstraction.

This applies perfectly to the copyright frame as well. Oracle v. Google- the API is consumed by a non-human actor. Non-humans cannot consume expression. No copyright. User interfaces, on the other hand, are consumed by persons, and are without a doubt expressive works. Copyright.

As we go forward into this age, non-human intelligences will be more and more present in more and more aspects of life. Sooner or later, this -or some similar- concept of abstraction and information consumption will emerge as the only way get a handle back on on a just and practical intellectual property regime.

[MaxDrei]

Martin, are you saying that the Bard port claim is not eligible because the markings are for the human brain, or to the contrary that it is eligible because the markings are for an X-ray imaging device? I'm not clear.

Further, for the benefit of us all, could you comment on where my "blue squash ball" claim fits, in your scheme of things?

Conventional squash racquets balls are black. But I have discovered that the game proceeds at a higher level of skill when the black ball is replaced by a blue one. This is because of what I have just discovered and proved by experiment, that the human brain discerns the flight of the ball, against a white wall, somewhat earlier when the ball is blue than when it is black. Is my claim eligible (even though the information is for use by the human brain)?

Or do you say that the blue colour is something other than "information"? Are the radiopaque markings on Bard's subcutaneous port (which raise the standard of patient care) qualitatively different from the blue colour of my squash ball which raises the standard of the game of squash?

[skeptical]

The statement of "Yes, all utility is eventually consumed by human beings, but that's a pointless construct." yields an unrelenting (and unforgivable) choice to NOT understand the terrain of the battlefield.

Mr. Snyder, as long as you preserve in being wayward, your musings NECESSARILY remain untethered to patent law and the history of protecting innovation.

Will you ever understand this basic point?

I remain...

[Martin H Snyder]

Max I would say that the squash ball color would not an item of information in this context. The autonomous nervous system responding to a color is not hosting abstractions in a human conscientiousness.

If there is a neurophysiological effect than the result of the method is not an item of information-its more like a pharmaceutical patent. Of course, changing the color of a ball is obvious to anyone, let alone a PHOSITA of ball color selection.

Stopping a car at a red light, on the other hand, is an abstraction entirely within the conscious mind of a human being, and should not be eligible. An autonomous driving system, on the other hand, cannot host that abstraction but can be programmed to stop on red- without abstraction.

anon, try for once to step past glib nonsense and present some reasoning that supports the idea that all utility is equal and fungible.

[MaxDrei]

Martin, I relish your answer, drawing a distinction between the brain's "nervous system" and what we understand as human consciousness.

But on the issue of the "red light" give me more, will you. Just for the avoidance of doubt, and to confirm that we understand each other, let go back to the days of street intersections still not controlled by traffic lights. Presumably you will agree that the invention of "traffic lights", as such, is eligible.

PS: I like your reference to conscientiousness. It's a laudable attribute, as I'm sure you'd agree..

[skeptical]

Blue of a squash ball, red, yellow and green of a traffic light...

[MaxDrei]

anon, you cannot be serious, in equating the invention of the blue squash ball to that of a system of traffic lights. In a world prior to the invention of "traffic lights" the choice of colour of the lights is not an issue. You could equally well have traffic lights with no colours at all. For example, an X means "stop" and a circle means "go". And anyway, what do you think about how red/green colour blind people react to traffic lights?

When do we arrive at the exact point at which a claim can be said to be "directed to" the presentation of information, as such? Radiopaque markers Y/N? At least Martin appreciates the point.

[skeptical]

The human choice to play squash is the context in which the utility of the color arises.

This is no different — in effect — than the human set-up system for traffic lights.

The fact of the matter being that a traffic light — in and of itself — may be eligible as an item for autonomous driving, but not for human driving absolutely misses the point on the nature of utility, and the role of utility in the patent system.

To the opposite of what Mr. Snyder posts, the person remaining glib is Mr. Snyder.

[skeptical]

MaxDrei,

I refer you to the above point that I presented that you refused to engage with.

Please refrain from being an arse and saying that a point is not appreciated when you earlier refused to engage. It is not only unbecoming of you, it is disrespectful.

[martin snyder]

Max an improved traffic light- the vehicle that carries information- would be naturally patent eligible. A method for controlling traffic where people stop when they see red lights cannot be patented in a free society.

The exact point at which a claim can be said to be "directed to" the presentation of information is when the utility of the invention arises from the consumption of information by a human mind. doesn't that seem to be the intuitive line?

So for the tenth or fiftieth time anon, STATE the point on the nature of utility, and the role of utility in the patent system. Just say it. Don't say I should know it or you dont have time or you said it before or I wouldnt understand it anyway. Just say it or give it up already.

[MaxDrei]

Martin, I wonder whether your first and second paragraphs are compatible with each other.

In the first paragraph, you declare the invented traffic light (or RO-marker-bearing port) to be eligible. In the second para, however, you declare as ineligible any invention whose utility "arises from" the consumption of invention by a human mind.

Are you suggesting that a new port that is characterized by a machine-readable RO marker would be eligible but a port simply RO-marked "CT" would not? Is it decisive, whether or not the marker is visible to the human eye?

[skeptical]

Mr. Snyder, I have “just said it,” and you refused to understand. If you recall, I even set out the question so that you could ask your then patent counsel (you were in suit at the time).

You also refused to do that.

One indicator for you here and now (also something that I have previously stated): you use legal terms of art outside of their recognized meaning. To wit, your version of multiple types of “abstract,” that have no actual bearing to how the term has been legally used.

You have gone off on a lark, and while some may find your lark ‘interesting,’ I would rather have you tether your views back to the real world of patent law and innovation protection.

[Martin H Snyder]

Anon, so you point out that my ideas have not yet been adopted by the patent courts. That's extremely insightful. And here I thought my ideas were already in practice and the problems significantly mitigated. Also thanks for the back hand acknowledgement that my ideas are interesting.

In fact, your mind is now infected with them and you will have a hard time seeing the problem any other way. That's how it is when an obvious truth is discovered.

And don't think my advocacy is limited to blog posts. It's not. I will likely be in court with it, sooner or later.

Max, the traffic light is a machine- a vehicle- and an improved traffic light should get a patent. The use of a traffic light as an infringing act of a process patent is not the same thing as the making of a traffic light. Is that clear to you now?

The visibility of the marker to human senses is not a pertinent factor. The test is this:

Is the invention a method? If Yes

Is the useful result of the method composed of information only? If yes

Is the utility of the information achieved by human consumption of the information? If yes

Not subject matter eligible

In this case, if the infringing act is learning the flow volume of the port, it should not be eligible. If the infringing act is making a new port (the information vehicle) that is an improvement over old ports in a new, useful, and non-obvious way,including any ability to inform an end user that is new and useful, the invention should be eligible. If marking an object with a radiographic market was a non-obvious thing to do, it should get a patent.

Is there anything about any of this that you are not clear on? I do hope you read the paper- its more detailed including addressing the facts of past subject matter cases.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2709289

[skeptical]

MaxDrei,

It is not just a matter of "visible."

It is (and must be) more, given as Mr. Snyder has already allowed for things visible to the human eye -- BUT processed in the human brain outside of 'human consciousness.'

Of course, as a matter of patent law, everyone knows the line between human consciousness and ANY type of processing in the brain, right?

Not that ANY such thing matters though when it comes to the patent concept of utility, which -- at the end of the day -- ONLY has merit when countenanced IN the realm of human consciousness.

But let's not mind such niceties.

[Martin Snyder]

Yes, the state of consciousness required to entertain an idea and respond to it is legal ground well-trod. It's legally distinguishable from non-volitional human behavior.

[MaxDrei]

Thanks for the detailed answer Martin. I must confess, in the context of "printed matter" and the specimen claim included in the Michael Borella post, I was thinking more about the eligibility of objects marked "CT" than about methods and processes that involve the step of perceiving the information content of such an object.

I will access and read your Paper. I want to see how it compares and contrasts with the EPC per se eligibility exclusions of Article 52, which include "presentations of information", and the EPO case law in that area.

[skeptical]

Mr. Snyder, you are per chance not aware of how such a volutional aspect is in play in the terrain of patent law (think of trespass).

Of course, to do so would require you to do as I have asked if you for years now: understand the terrain.

As to your (absurd) and grandiose assertion of ‘infection,’ I suggest that you try to actually grasp something other than your own infatuation with your concoction.

[Martin Snyder]

I'm concerned with solving the problem. If someone else has a better idea- and you have shown no signs of having one anon- I would be happy to see it realized. A moderate amount of vanity, like most things, seems appropriate.

Abstract claims are different than abstract inventions. It's only a matter of time for the law to recognize reality in the Information Age.

[skeptical]

What does that even mean? Abstract claims are different than abstract inventions....

Please explain using recognized patent law principles (rather than your ‘only too happy to pat yourself on the back’ concoction).

[skeptical]

..and you are far less concerned about 'solving the problem' and far more STILL too deeply immersed in the emotions of your own legal battle (and loss).

There is NO altruism in your motives.

[martin snyder]

Who said we lost our battle? I can't say anything about it.

Regardless, the proposition that an invention is distinguishable from claims describing it is a philosophical question. I think inventions and claims are two different things.

Abstract claims are what the Alice test is really looking for. They have 103/112 problems, often combined. Abstract inventions, on the other hand, have something intrinsic that makes them abstract, and you KNOW what that means when I say it.

The inability of the patent office and courts to separate these key differences coherently is why we are where we are...

[skeptical]

Who said 'we' lost that legal battle?

The fact that YOU may be constrained as to what YOU may say is a huge indicator.

And it is NOT a matter of 'regardless,' as your animus is a huge reason why you have refused to come anywhere close to understanding the terrain upon which you would do battle.

It's 'nice' that YOU think that inventions and claims are two different things. Yet again, I invite you to understand the basics of patent law.

I really doubt that you understand what the 'Alice test' was "REALLY" looking for, or for that matter, just why the 'Alice test' is so controversial in the first place.

You really do not grasp that the scoreboard is broken.

And WHY we are where we are has everything to do with the scoreboard BEING broken.

You are simply in the weeds at so many levels, Mr. Snyder.

[Martin Snyder]

Dood you need an editor. Repetitive & oblique wins no points.

The plaintiff can't say anything either, not that they would ever want to. The public records say enough.

Meanwhile you labor under a delusion that I think my ideas have already become law. Here on Earth, that's a looong shot, yet grind on I will. That's how change happens and truth prevails. Ain't automatic.

[skeptical]

Project much, Mr. Snyder?

Your descriptive choices from repetitive, oblique, winning no points, and laboring under a delusion, all fit you.

Truth? What a laugh. You mean your ‘truth,’ right?