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« Chevron U.S.A. Inc. v. University of Wyoming Research Corp. (Fed. Cir. 2020) | Main | Vectura Ltd. v. GlaxoSmithKline LLC (Fed. Cir. 2020) »

December 03, 2020


If this so-called eligibility framework is not unconstitutionally vague and unrepeatable, nothing is.

No two courts, examiners, juries, inventors, or lawyers could reliably predict these findings or even what the predicates of these findings would be. It's pure scholasticism.

They know it when they see it, and nobody can say what they will see until they see it.

Meanwhile, the result of the claimed method(s) is just rearranged information. The steps of the method are just arranging information. New ways to arrange information without regard to the meaning of the information are one thing, but when the meaning of the information provides the utility, there is a huge problem.

All information is abstract.

I'll beat my drum until I can't beat it anymore: the only reasonable measure that makes information too abstract for patenting or likewise material enough for patenting is how the utility of the information is realized.

If such utility is realized in the mind of a person- e.g. the player of a video game- that information is abstract and should not be patent eligible.

If such utility is realized by a non-human, its material and should be patent eligible.


The prosecution to date in the EPO family member EP-A-3050606 is interesting, as a test case of Martin Snyder's litmus test of eligibility. Article 52 of the EPC excludes from eligibility any method for playing a game.

On the EPO file, there is no mention at all of eligibility. Rather, the debate is all about whether the claimed subject matter is patentably inventive. The EPO, under the obviousness provision, has been doing for decades what Martin wants to do under 101.

Mr. Snyder,

At the end of the day, all utility in the patent legal sense is realized by humans.

You may not run away from that, or make up your own basis of understanding of what utility means in the patent legal sense.

You must understand and accept the legal terrain upon which you would choose to do battle. Until you do so, ALL of your postulations are meaningless.

All utility in the patent legal sense is realized by humans.

So what? A cow eats cornmeal, I eat a steak, I'm not eating cornmeal. The cornmeal provided direct utility to the growing of a cow.

It did not provide the utility that put the steak on my plate.

Utility occurs in quanta. Infringing acts occur in quanta.

You rarely make much sense, but on this, you make zero sense at all.

Mr. Snyder,

It is you that is attempting to employ a false equivalency.

Your attempt at "so what?" is nothing more than you missing the very point that you need to grasp to move from what ever it is that you think that you want to sell, to being able to talk intelligently about patent law utility.

Cornmeal to cow to you, notwithstanding. Your "quanta" notwithstanding (ESPECIALLY, as you yourself fail that very same 'quanta' when you move from 'method' to 'result of method).

You seem unable AND unwilling to understand the very basics of what you need to understand to want to be a part of the LEGAL discussion.

mmm hmmmm

A method should have a result construed by law. A method without a result cannot be a method. The Supreme Court said so in Deener.

This isn't a pure legal discussion in any case, even though I am on firm legal ground. This is a policy problem.

Mr. Snyder,

This is a legal discussion, and you are by no means even close to being on firm ground.

You have consistently refused to recognize the terrain upon which you would do battle.

It's those "repetitive, oblique, winning no points, and laboring under a delusion" aspects that are that you have.

This latest of yours: that a method should have a result, is a complete non-sequitur.

Martin, can you say more about the Deener case. Until you do, I will assume that an enquiry into whether there is "a result" is useful as a convenient test of whether the claimed method exhibits the quality of "utility" that is required to get over the 101 hurdle.


Here (again), your penchant for politeness does a disservice.

At best (and that is being ultra gracious), it appears that Mr. Snyder is leaning on his non-law colloquial 'reading' and seeing a Machine or Transformation test in the Method category of patent eligible matters.

Perhaps Mr. Snyder would be happier moving to a different Sovereign...

Max every process must have a result or it can't BE a process.

Cochrane v. Deener, 94 U.S. 780, 24 L.Ed. 139 (1876) "That a process may be patentable, irrespective of the particular form of the instrumentalities used, cannot be disputed. . . . A process is a mode of treatment of certain materials to produce a given result"

It's the nature of the result that is important.

Bilski established that no chemical or physical transformation is required for a patent eligible process, but Bilski did not require courts to construe the nature of the result, whatever it may be.

In my scheme, if the result is information, the utility of the information can only be understood in reference to the consumer of that information.

How far up or down the causal chain that result may extend would be part of the construction of the invention.

At any event, this discussion is IS a policy discussion because subject matter eligibility is a policy problem revealed by legal incoherence.

Just as claim construction was a muddled crap-shoot before Markman, the construction of process inventions is such today. Berkheimer could have been the case to establish this clear truth, but sooner or later something will have to give.

This case written up above is almost a parody of justice for everyone involved.

Wrong again, as usual.

All information is abstract. 100% of it. All the time. So any result composed of information that IS eligible would not be an MoT.

Constantly being shown up by a non-lawyer must be galling, I can see that.

Delirious you are, being shown up by you has NEVER happened, so the result that you would project is of no consequence.

If you ever were to actually adhere to the legal terrain AND then ‘showed me up,’ we could engage in a discussion (as opposed to your seemingly want to merely ‘declare victory.’ As you do not give any indication whatsoever of showing up with that understanding of the legal terrain, and are ONLY interested in your decidedly peculiar version of reality, disassociated from patent law, you will never be correct. Thus, I can never be “shown up” by you.

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