10 Judges, 135 Pages Of Ruling About Software Patents... And Zero Clarification

from the wtf? dept

Fri, May 10th 2013 7:39pm — Mike Masnick

Okay, we know that the Court of Appeals for the Federal Circuit (CAFC) has quite the reputation for mucking up rulings concerning patents over the years. In fact, there's a strong argument to be made that CAFC is a key reason that our patent system is so screwed up today. So, leave it to CAFC to issue one of the most bizarre and useless rulings ever concerning software patents. The specific case is CLS Bank v. Alice Corp, and we had noted this was a chance for CAFC to actually fix the software patents problem, though the oral hearings suggested a very conflicted court, and that's certainly what came out in the ruling. Or, rather, I should say: rulings.

The document is 135 pages... but the only part that actually matters is one single paragraph that was issued "per curiam" (i.e., by the whole court, but without anyone being named):

Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.

Basically, a majority of the court agreed with the district court that the "invention" in the patent in question -- about using a computer to basically do "shadow transactions" to net out a deal to make sure that all funds are available -- was patent ineligible subject matter. This is what the district court had found, saying that it was just an "abstract idea." The original CAFC appeal had overturned that, saying that it was patentable subject matter. This was a rehearing "en banc" with 10 CAFC judges. Notice that 10 is an even number. Meaning, you could have a split court. Or, you could have a court in total disarray, which is what came out here. Even though they (mostly) agreed that the specific claims here are not eligible for a patent, the court disagreed on why or how or what color the sky is, basically.

There are seven (count 'em) different opinions issued in the document, none of them meaning anything, because none of them -- other than that one paragraph above, have more than the majority in agreement.

Even where they agree, they disagree, and make something of a mockery of the whole system. Dennis Crouch at Patently-O summarizes it thusly:

All of the judges recognized that the test for patent eligibility under section 101 should be “a consistent, cohesive, and accessible approach” that provides “guidance and predictability for patent applicants and examiners, litigants, and the courts.” However, the judges hotly disagree as to the pathway that will lead to that result.

That's kind of funny (or ridiculously distressing) when you think about it. The court is saying we need a clear and consistent approach to figuring out what is patentable, and the court feels that it needs to give very clear guidance to everyone about it... and then goes on to absolutely disagree on every key point within that. The end result is that while they agree we need consistent, cohesive and accessible guidance, they fail to offer any, and actually do the opposite, providing a huge mess.

Five of the judges did make a fairly interesting ruling, which would greatly limit software patents. It notes that:

... simply appending generic computer functionality to lend speed or efficiency to the performance of an otherwise abstract concept does not meaningfully limit claim scope for purposes of patent eligibility.... At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility. In short, the requirement for computer participation in these claims fails to supply an “inventive concept” that represents a nontrivial, nonconventional human contribution or materially narrows the claims relative to the abstract idea they embrace.

Basically, just adding "on a computer" shouldn't make a general idea patentable. That's good. If only they could have found a sixth judge to support it. Instead, you get the following table of contents:

Opinion for the court filed PER CURIAM.

Concurring opinion filed by LOURIE, Circuit Judge, in which DYK, PROST, REYNA, and WALLACH, Circuit Judges, join.

Concurring-in-part and dissenting-in-part opinion filed by RADER, Chief Judge, LINN, MOORE, and O’MALLEY, Circuit Judges, as to all but part VI of that opinion. RADER, Chief Judge, and MOORE, Circuit Judge, as to part VI of that opinion.

Dissenting-in-part opinion filed by MOORE, Circuit Judge, in which RADER, Chief Judge, and LINN and O’MALLEY, Circuit Judges, join.

Concurring-in-part and dissenting-in-part opinion filed by NEWMAN, Circuit Judge.

Dissenting opinion filed by LINN and O’MALLEY, Circuit Judges.

Additional reflections filed by RADER, Chief Judge.

And, basically, all of this means nothing. It doesn't help to wipe out or clarify software patents at all. It doesn't really help anyone. It probably doesn't make anyone on any side of this issue happy. It just leads to more confusion.

However, as Julie Samuels at the EFF notes, hopefully this will help make it clear to the Supreme Court that it finally needs to issue a clear ruling on software patents, after completely punting the last time it had a chance.

11 1301 Opinion 5 8 2013 1 (PDF)11 1301 Opinion 5 8 2013 1 (Text)

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Filed Under: cafc, patents, software patents, supreme court
Companies: alice corp., cls bank

53 Comments

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Michael, 10 May 2013 @ 7:48pm

Wait, if there are 7 rulings, and five of judges signed off on one of them...

What the hell?

Did we appoint Tyler Durden to the CAFC when no one was looking?
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Anonymous Coward, 10 May 2013 @ 8:01pm

Re:
At least federal judges are a cut above just your average lawyer. You can get seven different opinions out of only three average lawyers.
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out_of_the_blue, 10 May 2013 @ 8:07pm

Hey, it's NO WORSE! Lower your hopes toward reality, Mike.
You keep expecting politicians and lawyers to not only reform, but for the better. You keep being surprised when corporations don't live up to their promises. Your plucky optimism would be admirable if not always mistaken.

BTW: should be NO software patents; all patents should require working physical models.
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Anonymous Coward, 10 May 2013 @ 9:45pm

Your constant bickering about the CAFC, including your continual denigration of the court's efforts in matters that are in no way amenable to your simplistic notions concerning subject matter eligibility under our Patents laws, is tiresome at best, and an exhibit of arrogance at worst.

These are not easy cases, as the court's opinion ably demonstrates. By citing Ms. Samuels at the EFF, and by association the EFF as an organization, you seem intent on relying upon a group that is "not the brightest bulb in the lamp" in matters pertaining to patent law. I daresay, even your stable of unidentified experts will agree that these cases to not admit to an easy answer and a bright line test akin to a litmus test.

Feel free to express outrage. Feel free to resort to name-calling, questioning my motives, challenging my credentials and expertise, etc. No matter what approach, if any, you may choose to employ should you respond, it cannot be denied that complex questions do not lend themselves to simplistic answers. This case is not the first time, and will certainly not be the last. Such is life...
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The Old Man in The Sea, 10 May 2013 @ 11:17pm

Re: Contant Bickering????
When bribery is the basis for law making, then one must expect various groups to raise their voices against such laws.

If patents were actually issued in the spirit of patents (and advancement), one would hope that maybe a couple would be issued each decade. This being based on the obvious actuality of most advancement is incremental and a merge of many ideas.

As lawyers and politicians are lower than most (if not all) used care salesmen, they (the lawyers and politicians) should be deferring to every one else.

I had considered rewriting the previous message as:

"Your constant bickering about Techdirt and the supporters of fixing the patent system, including your continual denigration of their efforts in matters that are in every way amenable to your simplistic notions concerning subject matter eligibility under our Patents laws, is tiresome at best, and an exhibit of arrogance at worst."

but I thought it best to make the other comments instead.
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The Old Man in The Sea, 10 May 2013 @ 11:20pm

Re: Hey, it's NO WORSE! Lower your hopes toward reality, Mike.
Who's trying to fake OOTB's comments. You gave yourself away with the "No software patents" comment.
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Starke (profile), 10 May 2013 @ 11:38pm

Re: Re: Contant Bickering????
I'm sorry, can I just say, lay off the lawyers. At least as a whole? I mean, I get the lawyer jokes, and general distaste when it comes to attorneys, particularly the ones that get media attention...

But, for every John Steele, or Charles Carrion, or Joseph Rakofsky, there are as many as one, to one and a half laywers who aren't trying to figure out how to gain cosmic power through bathing in the blood of virgins. Well, you know, yet.
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Wesley Parish, 11 May 2013 @ 2:04am

only divide-by-zero left, Patent Attorneys
"At its most basic, a computer is just a calculator capable of performing mental steps faster than a human could. Unless the claims require a computer to perform operations that are not merely accelerated calculations, a computer does not itself confer patent eligibility."

or at any rate, that's what I read in that - dividing by zero's the only thing that computers - like humans - can't do, so is not a trivial speed-up of operations, so is the only thing that could be legally patented ...
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Mike Masnick (profile), 11 May 2013 @ 2:37am

Re:
By citing Ms. Samuels at the EFF, and by association the EFF as an organization, you seem intent on relying upon a group that is "not the brightest bulb in the lamp" in matters pertaining to patent law.

Anyone who thinks that is clearly an idiot.

I mean that in the most offensive way possible, because you deserve it. Having dealt with Julie and other patent experts for quite some time, anyone who believes that she doesn't know this stuff, or that EFF is "not the brightest bulb in the lamp" concerning patent matters has no clue what they're talking about and is speaking out of ignorance, jealousy, spite or rage. Which one is it?

I know, I know, you're a big time patent lawyer, and this case threatens your very being. So you resort to the worst of the worst when confronted with reality: you lash out at those who are smarter than you.

Oh well. Too bad.
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Anonymous Coward, 11 May 2013 @ 3:14am

Re: Re: Hey, it's NO WORSE! Lower your hopes toward reality, Mike.
Yeah, the real OOTB tendsto lean towards monopoly for monopoly's sake
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Anonymous Coward, 11 May 2013 @ 3:39am

If the judges who are specialists in patent law cannot agree on how the law applies to a case, the law is so badly broken that it should be repealed immediately.
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TropicalCoder, 11 May 2013 @ 5:48am

Is that you, Gene Quinn???
n/t
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Anonymous Coward, 11 May 2013 @ 6:13am

Re: Re:
1. Conclusory statements about how Mike's peeps are the bestest? Check.

2. Personal attacks at anyone who disagrees with him? Check.

3. Dodges talking about the AC's point on the merits as to how this stuff isn't simple? Check.

4. Totally arrogant and condescending? Check.

A perfect score!
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This comment has been flagged by the community. Click here to show it

horse with no name, 11 May 2013 @ 6:15am

Re: Re:
Nice slam. Upset that he doesn't agree with you?

I think these decisions more than anything show that the issue is complex, and to come down absolutely on one side (as EFF generally does) is perhaps to miss some of the subtle nature of the problem. It may seem very obvious to you and them, but it's not obvious to the judges nor is it obvious to most of the rest of us.

What is scary to think is that the homeless guy walking through the park mumbling to himself about the black helicopters following is absolutely certain he is right too. he doesn't realize that perhaps they are after a large number of people, and not just himself.
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Anonymous Coward, 11 May 2013 @ 7:20am

Re: Re: Re:
As the bum transcends the park mumbling about black helicopters that are snoops over what is even worse is that most folks are to busy to look up to and see them, all the while denying their very existence.
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Anonymous Coward, 11 May 2013 @ 7:25am

Re: Re:
"Which one is it?"

Actually, none of them, though I am certain you wish it was not so.

The outcome of this case threatens my very being not in the slightest as I long ago moved on to other matters involving a broad spectrum of law. Nevertheless, I am a dedicated "student" of domestic and international patent law and devote considerable time and effort to remain current as it ebbs and flows in order to effectively consult with other counsel in all manner of issues affecting their clients.

I am sure Ms. Samuels is a nice person, and that the EFF is honest in the pursuit of its "mission statement". This alone, however, does not translate into a fundamental and extensive knowledge of all aspects, pro and con, associated with patent law.
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Anonymous Coward, 11 May 2013 @ 7:30am

Re: Is that you, Gene Quinn???
Thank goodness I am not, but not because I consider him to be lacking in his understanding of the law. It is simply because many of his articles and comments elevate aspects of patent law to a level I happen to believe is undeserved.
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Anonymous Coward, 11 May 2013 @ 7:35am

Re:
Your comment suggests you do not broach differences of opinion among members of the judiciary. Reading SCOTUS opinions must surely drive you up a wall. It bears mentioning that the majority of judges sitting on the CAFC are not specialists in patent law. Their expertise reaches across a variety of legal disciplines.
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JarHead (profile), 11 May 2013 @ 7:56am

Re: Re: Re:
And how about the original post? Point 1, 2, and 4 fits perfectly. Argument can be made for point 3. But to say that anyone without credentials cannot make any critics on a "complex" subject is dumb if not outright offensive. Yeah, patents are complex subject, so does that mean Mike, or anyone beside you, cannot have an opinion or critic about it?

I for one always interested on the "dimmest bulb in the whole universe"'s opinions and critics on a complex subject cos I found them usually sincere and where insights lie, not from the "omnipotent god-like" scientists/experts (the insights, I mean).
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Anonymous Coward, 11 May 2013 @ 8:50am

Re: Re:
If law is open to interpretation that is dependent on which judge is interpreting it, it is no longer law but a lottery. People cannot obey the law when it is open to varying interpretation, and this brings the law into disrespect.
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The Old Man in The Sea, 11 May 2013 @ 9:38am

Re: Re: Re: Contant Bickering????
I know some really nice lawyers. But they appear to be far and few between. They, as a group, appear to the rest of us as very self-serving. We can be thankful that there are small groups of them that actually do have a soul and want to help people.
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Anonymous Coward, 11 May 2013 @ 10:09am

Re:
"Every court and every judge that ruled against my pet copyright causes are wrong and I know better than them because I studied some cases in school!" - AJ, not being arrogant.
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Anonymous Coward, 11 May 2013 @ 10:15am

Re: Re: Re:
...it is no longer law but a lottery.

The American people love lotteries.

People cannot obey the law...

The American people don't want to obey the law, and as often as not they punish the poor losers who do obey, and reward the people who flout it.
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Anonymous Coward, 11 May 2013 @ 10:17am

Re: Re: Re:
Laws are interpreted by people, and among them reasonable minds can certainly, and quite rationally, differ. Most cases decided by the Supreme Court arrive at the court because a circuit split among two or more US Courts of Appeal. Even within the Supreme Court it is unusual to have unanimous decisions.

Does this result in what some may consider an injustice? Of course it does, but then again this is true of any human endeavor, be it the law or otherwise.
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Ed C., 11 May 2013 @ 10:57am

Re: Re: Re:
Agreed. It's ridiculous that a group of knowledgeable professionals can look at the exact same case and exact same laws, yet barely agree on a damn thing! If law is such a matter of the opinion and interpretation by the individual rather a definitive direction based on hard facts, then we might as well just write it in poetry, paint it in an abstract fresco, express it through the rhythm and motion of an interpretive dance or even the feng shui of a hotel lobby decor. Any of these would be just as useful, or useless, in judging the rule of law.

And for the lawyers who will undoubtedly rush to defend the law as a matter of principle rather than by its merits in actually maintaining the orderly conduct of society, first tell me in what other area outside of art and law would you find such a divergent opinion from knowledgeable professionals to be acceptable? I doubt you would accept ten car mechanics or ten doctors giving you ten different opinions on the same problem, so why should we accept ten different opinions from ten federal judges on the same case? The inner workings of a car or the human body are discrete and definable. If laws are not discrete and definable in a manner that can give proper direction to even knowledgeable professionals, then they cannot govern society.
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Anonymous Coward, 11 May 2013 @ 5:02pm

Re: Re: Re: Re:
If you have a pair of binoculars and look at them from in your house they will tend to go away and not come back in the future.
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Anonymous Coward, 11 May 2013 @ 5:04pm

Re: Re: Re: Re:
The laws are purely self interested written by politicians who get campaign contributions and revolving door favors in return. Proof, Copy'right' lengths. This doesn't just apply to IP law, it applies to so many other laws.
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Anonymous Coward, 11 May 2013 @ 5:08pm

Re: Re: Re:
"I am sure Ms. Samuels is a nice person, and that the EFF is honest in the pursuit of its "mission statement". This alone, however, does not translate into a fundamental and extensive knowledge of all aspects, pro and con, associated with patent law."

and why does IP law need to be so insanely complicated that you need an army of lawyers to still not have a good understanding of it?

See, you argue against yourself. The OP is about the lack of clarity in the law and how, after all this so far (135 or whatever pages and whatever court trials) no one still understands the law. and here you are agreeing, the law is still too complicated and ambiguous for the EFF or Techdirt or you or anyone to understand. Good job.
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Anonymous Coward, 11 May 2013 @ 5:14pm

Re:
"challenging my credentials "

You're anonymous, you have no credentials (as far as I'm concerned). The people at the EFF are not anonymous and so they have credentials. See the difference.
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yont, 11 May 2013 @ 5:43pm

font
What a font this decision was.
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horse with no name, 11 May 2013 @ 7:18pm

Re: Re: Re: Re:
Agreed. It's ridiculous that a group of knowledgeable professionals can look at the exact same case and exact same laws, yet barely agree on a damn thing! If

It's true that it is sad, but often the root cause of the problem is people who started out trying to pull the covers to their side of the bed before the read the laws, and are now trying to use the laws to justify their actions.

It's also not a simple area because IP and IP related jobs are a huge part of the US economy these days, and nobody wants to be the one who changed a law or issued a ruling that hurt that economy. It explains generally why laws like this have to be changed in the congress rather than through legal action, as the legal action often ends up creating more confusion. The court here pretty much ruled that it works either way, we can see both sides, and there is nothing clear cut in these areas in the law that we can rule on with full agreement.
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Anonymous Coward, 11 May 2013 @ 9:18pm

Re: Re: Re: Re:
I most certainly did not opine that the law is too complicated and ambiguous. What I did opine is that the EFF has only a limited understanding of patent law. Title 35 is but one of several sources one must assimilate if they are to understand the fundamentals of patent law at the statutory level down to and including procedures and rules implementing the statute. Anything less and one is missing important substantive provisions of the entire body of patent law.
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Anonymous Coward, 11 May 2013 @ 10:16pm

Re: Re: Re: Re:
Curiously, I have yet to see any professional group where knowledgeable professionals look at the exact same case using the exact same reference texts and all arrive at the same conclusion. You have likely seen this as well.
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Mike Masnick (profile), 11 May 2013 @ 11:15pm

Re: Re: Re: Re: Re:
As per usual your ignorance and misguided condescension shows through. EFF has multiple staffers with a tremendous amount of experience in the patent space, including Julie and others who have worked for years on these issues and with innovative startups. You only insult them because you disagree with them. You do this all the time. You pretend that no one on the planet who disagrees with you about patents could possibly be intelligent or experienced in the space and you make idiotic and flat out wrong comments about them that are always pedantic in nature.

You could just admit that you disagree (though tellingly you didn't even make a single substantive comment on their analysis -- you just went straight for the insult) but no you have to claim they're stupid.

Over the past few years I've seen your daily comments here and have dealt with them many times. You have no business insulting them because you are consistently wrong, uninformed, and worse when called on it and proven wrong you pretend you never said what you said.
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Anonymous Coward, 12 May 2013 @ 5:24am

Re: Re: Re: Re: Re:
That's because you're dealing with law and the law is ridiculous, ambiguous, and unnecessarily complicated. Contracts and patents and laws in general are written by idiot lawyers and so they are ambiguous and they can be interpreted in all sorts of different ways. So, yes, it would be expected that in your corrupt profession of idiots this would be the case. In other professions, not so much.
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Anonymous Coward, 12 May 2013 @ 6:06am

Re: Re: Re: Re: Re: Re:
Most people can read an instruction manual and agree on how to use or assemble a product. Most people can read a physics or math book and agree that 2+2 = 4 and agree on the contents. For some reason or another when it comes to law you can have different people reading the same law and having no clue how to interpret it. Other professions aren't like this.
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Anonymous Coward, 12 May 2013 @ 6:11am

Re: Re: Re: Re: Re:
The other profession like this is religion, where wars are fought over interpretation of the same book.
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Anonymous Coward, 12 May 2013 @ 7:08am

Re: Re: Re: Re: Re:
laws like this have to be changed in the congress

Gallup Poll: �Americans Down on Congress, OK With Own Representative� (story by Elizabeth Mendes, Gallup, May 9, 2013)

Congressional approval at 16% in May

WASHINGTON, D.C. -- Americans continue to express frustration with Congress: 16% approve of the job it is doing, essentially the same as in April.�.�.�.

Americans More Approving of Their Own District's Representative

�.�.�. About half (46%) of Americans say they approve of the job the representative from their own congressional district is doing.�.�.�.

�.�.�. Gallup asked a different group of respondents a separate version of the "representative from your district" question. These respondents were first asked if they knew the name and party of their representative, and then whether they approved of that representative. Thirty-five percent of all respondents surveyed knew the name of their representative and, of this group, an even higher 62% approved of him or her.

The difference between the 62% approval rating among this group and the 46% among all Americans suggests that those who do not know their representative's name hold him or her in lower regard.�.�.�.

The American people loves to bitch about the job Congress does �but when it comes time to do something about it� they won't act on the idea that their own Congressional representatives are the ones doing the job.

The disconnect is too big to ignore. The reasonable conclusion is that the American people collectively want Congress to pass laws so messed up that intelligent professionals can't agree on the meaning of the law.
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Anonymous Coward, 12 May 2013 @ 7:55am

Re: Re: Re: Re: Re: Re:
To which can be added, among many, doctors, engineers, economists, educators, etc.
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Anonymous Coward, 12 May 2013 @ 12:32pm

Re: Re: Re: Re: Re: Re:
In matters associated with patent law you have your resources and I have mine (a few of which coincide with yours). Perhaps the main difference between yours and mine is that yours tend (but not always) to reflect your views, whereas mine reflect widely diverging views.

While I do follow work being done by the EFF and other similar groups (e.g., PK and KEI), much of their work reflects a singular mindset that adds little, if anything, to substantive and objective discussions. Hence, I tend towards those willing to engage in vigorous pro/con discussions that do not reflect advocacy for a particular point of view. This is one reason, for example, why I only infrequently review IPWatchdog and similar sites. Much the same can be said of journal articles where the authors have in the past consistently presented a one sided view of relevant issues.

Interestingly, the former groups almost invariably disagree with my understanding of patent law, whereas the latter raise and discuss issues that are particularly thought provoking.
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Mike Masnick (profile), 12 May 2013 @ 6:13pm

Re: Re: Re: Re: Re: Re: Re:
In matters associated with patent law you have your resources and I have mine (a few of which coincide with yours). Perhaps the main difference between yours and mine is that yours tend (but not always) to reflect your views, whereas mine reflect widely diverging views.

You know what they say about people who make assumptions?

Yeah. That.

You're completely wrong again. It happens a lot. You should stop making stupid assumptions because it only reflects poorly on you.
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Anonymous Coward, 12 May 2013 @ 6:48pm

Re: Re: Re: Re: Re: Re: Re: Re:
Of course mine is an assumption, but there is substantial "circumstantial" evidence for this assumption based upon the persons and references regularly cited here as authoritative sources. It is a rare instance indeed if any person or reference cutting across the grain of the positions regularly promoted on TD is cited. To the extent they are cited, almost invariably they are denigrated, even though the points made by them are thoughtfully and articulately presented, and their bases identified with particularity.

Let me put this another way. TD is clearly an advocacy site, and as such differs little from advocacy groups such as the EFF.

If one is seeking objective information from which to formulate their own opinion, then they would best be served by looking elsewhere where such information resides.
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Starke (profile), 12 May 2013 @ 7:11pm

Re: Re: Re: Re: Contant Bickering????
Yeah, in all seriousness, I don't know if I've just been supremely lucky, or I'm already the exact kind of ruthless bastard that law schools are looking for.

But, most of the lawyers I've met and interacted with have been genuinely decent people.
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horse with no name, 12 May 2013 @ 9:00pm

Re: Re: Re: Re: Re: Re:
The fundamental disconnect is the same that you see here and on almost any other issue advocacy site: They blame the other guy, and can't fathom that perhaps it's their own views that are out of line.

A 16% approval rating for congress but a 46% for their own rep suggests that they think that whoever they elected is just fine, but it's all the other idiots who are screwing it up. "It's not my fault, it's your fault!".

You can scroll up through the comments in this thread to see that at work here, with the argument about who's experts in the field are more right.

What it really boils down to is a lack of responsiblity. Nobody wants to think they are responsible for the problems, and only that they have all of the answers. Things would bet better except for "the other guy screwing it up!".

The anti-copyright types could do themselves a great service by stopping slamming whoever they feel is the opposition, and instead just moving forward with their non-copyright business models supporting the artists that create the stuff. Instead, they slam, bitch, moan, and complain, and don't move forward. What they are really trying to do is jam the opposition into using their unproven business models, rather than proving them clearly themselves.

Remember, the world would be right if the other guy wasn't screwing it up. It's how they work it.
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Anonymous Coward, 12 May 2013 @ 10:51pm

Re: Re: Re: Re:
So it should be our job as a society to correct this injustice.

I understand why you are fighting so fiercely for this broken system, it's your pocketbook at play. You see these terrible misunderstandings over laws which probably shouldn't be in existence and see dollar signs, you see these corporations throwing around millions of dollars and want a piece of that as well. It's natural to you, I understand, I'm sure if you lived a hundred years earlier you would be selling snake oil or virility potions.

Laws are not subjective, that is why they are laws. If we cannot find even reasonable agreement in our own laws, what's the point of making them into law to begin with?
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Anonymous Coward, 12 May 2013 @ 10:54pm

Re: Re: Re: Re: Re: Re: Re:
And lawyers, such as yourself. The difference is: where they disagree for scholarly purposes, your disagreements ruin peoples lives.

I have far more respect for a trained professional attempting to understand the laws of the universe than men of no scruples arguing about which fickle, contradictory edict should be used to control people's lives.
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Anonymous Coward, 12 May 2013 @ 10:57pm

Re: Re: Re: Re: Re: Re: Re:
Have you not been sent to the glue factory yet? Every one of your posts boil down to "Everything would be happiness and sunshine if you dumb freetards would just accept responsibility for our broken system!"

Every, single, post. And it's been debunked, numerous times. You don't want to own up to it of course because your excessive use of copy + paste is much easier than trying to modify your argument to fit what has and hasn't been addressed.
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Mike Masnick (profile), 12 May 2013 @ 11:21pm

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Let me put this another way. TD is clearly an advocacy site, and as such differs little from advocacy groups such as the EFF.

You're so funny. You've been commenting on this site for years, with a clear bias and an EXCEPTIONALLY clear agenda. You're just as much of an "advocate" as I am.

And, frankly, I'm thrilled to be compared to the EFF -- who you criticized earlier. If I've accomplished in my life 1% of what the EFF does in a year, then I've done something amazing.

If one is seeking objective information from which to formulate their own opinion, then they would best be served by looking elsewhere where such information resides.

I, as well as the EFF, are pretty good about including as many original sources as possible. We are big believers in letting people decide for themselves.

You, on the other hand, regularly lie, distort and mislead. And when called on it, you double down with more lies. Plus, you're (now) anonymous (despite naming yourself on other sites where your "friends" write).

You've never provided objective information here. You have a clear agenda and you weakly try to hide it by pretending that you're "merely here to provide some information" or whatever pedantic language choice you make that day.

No one is fooled by you.

Does the EFF have a bias? Absolutely. It's towards more freedom and what's best for the world. If you don't have that "bias" then you're a fool.
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Pragmatic, 13 May 2013 @ 3:31am

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Mike, don't feed the troll. Just ban him and have done with it. He's not worth the effort or the waste of the time spent replying to him. It doesn't matter how well-thought out and informed your answers are, if he's made up his mind, neither you nor I can change it.
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Ninja (profile), 13 May 2013 @ 3:45am

IP was built up over time to be a mess open to all sorts of abuses by the deeper pockets so they can maintain control. While this outcome is absurd in any way conceivable I'm fairly sure it's no surprise to anyone. As it will not be a surprise when nothing is done to fix it.
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Anonymous Coward, 13 May 2013 @ 8:23am

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Please correct me if I am mistaken, but I have not to my knowledge ever expressed a biased view (e.g., patent law is great the and engine of our economy, copyright is good and without it original works beneficial to the public at large would wither on the vine, etc.). I have, however, provided comments whenever I believed that facts, law, etc. were being presented in arguments supported by "cherry-picking".

Using SOPA as but one example, I, and a very large number of others familiar with the proposed legislation, made note of many factual inaccuracies that were making the rounds during its pendency. I did not take a position on the wisdom or lack thereof, but only to address the contents of articles and commentary that I believed were not accurate, and thusly misleading to those largely unfamiliar with the substantive contents of the bill.

Even the question "Are patents and copyrights 'property' within the meaning of the 5th Amendment. This is a legal question, and one that has not been squarely presented to and decided by the Supreme Court. Sure, it has tapped danced around around the issue, issuing opinions with contradictory dicta, but never so stated as a court "holding", and it is holdings that form binding precedent.

Even in matters associated with specific patents, my only comments have been to the effect that one cannot simply take a look at a patent and immediately declare, without much more, that it is "bad" because it is manifestly "obvious". This by no reasonable means can be interpreted as stating an opinion that a specific patent is "not bad" and "not obvious". A fine distinction yes, but a definitive opinion most certainly not.

If urging caution in making an analysis makes me a "maximalist", "troll", "whatever", then I submit attaching these and other labels because of such comments are simply incorrect.

Discussing a matter of law without taking a position is hardly what I term "bias", and to say so I submit is a misstatement lacking merit.

On a more recent matter, even in Bowman v. Monsanto I do not recall ever stating definitively "Bowman will lose as Monsanto cleans it clock before the SCOTUS". You may wish to read the decision that just issued in anticipation of drafting a new article to present here.
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Robert Sachs (profile), 23 May 2013 @ 6:31pm

Not What It Appears
The CLS decision is not as pointless as you suggest. In fact, there is a fair degree of agreement between the decisions that actually is good for patentees, including software patent holders.

First, the majority of judges agree that the presumption of validity applies to Section 101. See Lourie at 23, and Radar at 26. This means that a defendant can't kill a software patent on a motion to dismiss, and without facts (e.g., expert testimony).

Second, the majority of judges agree that the key question is "preemption": does the claim cover all practical applications of the idea. They agree that this comes down to a question of the scope of the claim relative to "practical" and "real world effects". The judges all look for "meaningful limitations". Where the judges disagree is how you do that analysis, on what counts as "meaningful."

Even Lourie (who found all the claims ineligible) requires that the claim "wholly preempt" all "practical uses" of the idea. I would argue that a defendant has to prove that it could not practice the abstract idea without infringing. The patentee need only show that its possible to do that, because there is some limitation in the claim that is not required to practice the "big idea." In general, given a broadly stated "abstract idea" any good engineer can show that there is some limitation in the claim that is not required to implement the abstract idea. In that case, the defendant loses.

Your quotation above that "generic computer automation" should kill lots of software patents is not correct. Most software patents are not mere computer automation of an existing idea practiced in real life. Certainly there are plenty, but they are the minority. They may be more visible because they are more likely to be contested and result in litigation, but that's a biased sample.

More fundamentally, the underlying logic of this view is at odds with the law and I would argue, common sense. It has never been the case that an invention is ineligible because it is "automation" or because it uses conventional mechanisms. It may be obvious, but it's still eligible for patenting. Indeed, caselaw going back over a 100 years, and the modern patent law, specifically allowed for inventions that were new "uses" of existing machines, which arguably covers the "mere" computerization of an existing process.

Further, this thinking is "biased" against computers for no apparent reason. More specifically: would you deny patent eligibility to someone who used conventional pulleys and gears and levers and springs etc. in a new way to lift a stone? No, you would say that qualified as eligible for a patent, and then decide whether it was obvious. If you would not discriminate against other types of "hardware" that can be reconfigured and repurposed, then you should not discriminate against computer hardware which is reconfigured and repurposed by software.

One of the hallmarks of our patent system is that it is technology agnostic: it does not dictate which technologies are a priori worthy of protecting and which are not. It lets in all comers and thus does not bias the path of technological innovation. Imagine if in the 1920s or so, the Supreme Court decided the inventions that used electricity were merely applying a "natural law" or "natural phenomena" and therefore no electrical device was eligible for patent protection? Maybe you would say that we'd be better off--but there is no evidence for that. Indeed, the historical record is that Edison, Westinghouse, and many others relied on patents in order obtain financing and maintain profits for further research and development.

For a detailed analysis of the CLS opinions see http://www.bilskiblog.com
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Anti-lawyer, 26 Jan 2014 @ 7:39pm

American lawyer = Christian theologian
Only American lawyers will doubt that 2+2=4. http://www.lawlaughs.com/honesty/howmuch.html

Only Christian theologians will assert that 1=3.
http://en.wikipedia.org/wiki/Trinity
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