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November 15, 2020

Comments

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?

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)?

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.

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.

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?

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.


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?

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...

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.

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..

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

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.

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.

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.

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.



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?

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.

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

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.

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.

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.

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.

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.

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).

..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.

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...

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.

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.

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?

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