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Tourbillon
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Refreshingly honest. Examiners won't do the right thing unless their count incentives tell them to. And there ya have it, from the government union's mouth...
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"Better" means different things to different people. To me, it means better searches to start, and then a more rigorous application of the law (meaning it must first be understood) to the facts to winnow the wheat from the chaff early in prosecution. To the PTO, it seems to mean "churn churn churn until they either get sufficiently tired and discouraged to accept a worthless claim, or we get reversed on appeal and thus are covered to allow the case without being dinged by QA".
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Apparently you think you DO need an excuse for placing a materially false statement on the record, Slick. And there you are correct, since an objectively false statement is prima facie evidence of intent to deceive. Ever heard of the Darwin Award? You might apply...
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6, just because you are a patent examiner does not mean you can't act educated. Lewis Carroll dear. Use your only friend Google Daddy and LOOK IT UP.
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If "Congress was fully aware" of anything in a bill I will happily concede my error if for no other reason than to celebrate an unexpected and singular event.
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Nothing special about long claims at all. But Lourie did not declare the long claim per se to be abstract. Understood? He created an ad hoc 6 word reformulation of the claim a few paragraphs before he reconsidered and created a new and different ad hoc 14 word reformulation, and then declared each ad hoc surrogate in its turn to be abstract without explaining why each one of his little ad hoc straw men was covered by the definition of abstract. Because there isn't a definition of abstract. In any case, the name of Lourie's game ain't the claim. I believe someone mentioned "j*nk"?
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This is another tax hike, by a different name. Which is why government drones like it, and why it would be DOA if presented to Congress. Suggest sneaking it in the back door through the PTO's fee-raising power and calling it "non-substantive". You don't really care how legitimately revenue is sucked out of the private sector, so long as it gets done, right?
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Reinier, I agree that any claim is "abstract" at some level, particularly when you employ Lourie's insidious ploy of stripping out most of the elements of a lengthy claim and restating "the idea" of the claim in a single ten or twelve word summary that usually is not found in the claim itself. For a hilarious example, check out the decision in the recent Accenture Global Services case. A long claim was stripped down by Lourie to a six word "abstract idea" and then a few paragraphs later Lourie restated the "abstract idea" in fourteen words, with the two competing "abstract idea" formulations bearing little resemblance to each other. It is hard to believe anyone proof-read this opinion before it was published. You know Lourie thinks something abstract is afoot, but you don't what it is, much less why either of the options should be considered to be "abstract". But I would not dignify the legal doctrine of "abstractness" with the descriptive term "abstract itself". That bestows too much credibility on it. The legal doctrine of "abstractness" is worse than abstract - it is mere tautology that has no definition ab initio. You don't know whether anything is abstract until a court declares it as such. Only once the initial tautology is resolved can you start employing the gimmicky tests enunciated by the Supreme Court. So I would not define "abstractness" as being "abstract itself". I would define it as being a "gimmick".
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Don't tell me the answer, I just want yes or no and if I'm wrong I want to keep guessing: Malignant Moonbat?
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The "abstract idea" provision is the only "absolute criterion" but admittedly is hard to distinguish because all inventions are abstract to some extent? You're too funny. Assuming you intended the irony and did not merely blunder into it. No, the "abstract idea" provision is sheer gobbledygook that releases software patent deniers into the general populace to wreak havoc by arguing every case from tautology, ignoring the plain words of 101 that ANY new and useful process is entitled to a patent (subject to the qualifying provisions of 102/103/112 that follow, none of which mention "abstract ideas".) "Abstract idea" jurisprudence thus is a religion initiated by the robed Druids in a certain Court, not a legal doctrine. Do not blame the true believers like the chemist Lourie who don't have the education to know better, blame the medieval English (major) priests who never met a simple statute they could not distort with aplomb or a technical concept they could comprehend. OK wait for it, I hear Pavlov's dog barking in the distance...
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I believe the exact quote is "the protocol of giving claims their broadest reasonable interpretation during examination does not include giving claims a legally incorrect interpretation. This protocol is merely an examination expedient, not a rule of claim construction."
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Not sure that BRI does not square with CAFC claim construction insofar as the CAFC believes. The CAFC repeatedly says that the same Phillips-based analysis holds at both the PTO and federal bench, and that BRI is simply "an expedient of examination, not a free-standing rule" of claim construction (In re Skvorecz, 2009). The difference, perhaps, is that while a court with two plausible constructions before it must take the one that preserves validity, the opposite is true during prosecution. Not criticizing your point so much as observing that as far as the CAFC is concerned, BRI squares with CAFC claim construction, assuming the law is understood correctly by the average examiner at the PTO, oh God now I'm laughing so hard I'm snorting my drink up my nose.
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Maybe 6 personally does claim construction. If so, he/she is pretty unique, because 99% plus of examiners DO NOT CONSTRUE CLAIMS beyond an implicit finding that "your claim term means: an unstated definition of which the only salient thing you need to know is that it is broad enough to encompass whatever prior art thing I allege meets it". Pure tautology.
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I believe I've read that you are an examiner, and so am not at all surprised to see an argument from tautology. You start with assuming the answer you want - all those thousands (millions?) of processor claims are now invalid ergo no "loss", without seeming to care that they are invalid only under the novel and unusual approach of the Smith PTAB panel. Those decisions are highly injudicious and also highly legally suspect, as I believe many CAFC judges will not like transforming a claim into a 112/f without any recitation of "means". The CAFC, to its credit, has historically been far less promiscuous in this regard than the emerging decisions from the PTAB. As to the copycats you refer to as "innovators" who will be delightfully free to copy the now unprotected innovative developments of others in our brave new world, I will indeed happily put in my 2 cents worth to preserve a strong patent system that history has amply demonstrated worked as intended, fostering the useful arts and sciences like no other. That, and not a blanket amnesty arising from new-found bad law and defective legal reasoning, is "saving the good name of the patent system as a whole".
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Paul, much of the commentary here is irrelevant to Rea leaving. As I should imagine you might know, having asked the same types of rhetorical questions a half dozen times or so. May I suggest that if you find it distasteful, simply move to another thread? While this may regrettably entail relinquishing the satisfying moral preening that comes with being Hall Monitor, it may have the salutary effect of lowering the blood pressure.
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MM I don't know what you do for a living but I hope you're not an economist. Those billions of dollars would be losses to the tech industry - meaning they would be losses to shareholders of the tech industry - meaning they would be losses to the big pension funds who hold stock directly (or through mutual funds, indirectly) in the tech industry. The big pension funds, if you don't know, hold the retirement money of middle class America. The class warfare Kool-Aid does not become anyone particularly when it starts dripping down one's chin.
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Dangerous stuff, and published as "informative opinions". With the CLS case demonstrating that half of the CAFC has no problem with jeopardizing a few million claims worth billions of dollars, why should the PTAB not construe a claim to a processor that is not in MPF format under 112(f) to jeopardize billions of dollars of more claims? Hunch is that the CAFC would reverse on appeal but you never know.
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Lotta heat here. As usual. Let me hose it down with cool water. Patent eligibility is based on a tautology. Just like God. If something preempts an abstract idea, it is not patent eligible. Assuming you know what an "abstract idea" is to begin with. Which you don't, because the Supreme Court can't define it. Ergo, our little tests - like those in Europe - are based on tautologies. Not logic. That is why belief in abstract ideas is like belief in God. You either buy into the tautology or you don't. This does not mean some tautologies are false. What it means is, the difference between the Supreme Court's tautology and God is, God knows He is not a tautology.
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Anon, a little advice, buddy. When you get caught with your pants down, pull them back up. Don't keep tripping over them trying to fight. Makes you look ridiculous. My original post was satirical. Admittedly it was not Voltaire, but others got it. You didn't. OK, we all miss the joke once in a while. Best to just move on. We agree on 101, I think, and I agree with much of what you say, often hilarious stuff, and by the way you and "MM" should go golfing together some time. But you are too easily ruffled. Exhibit A: erecting an unimaginative straw man about a steady state universe, demanding I respond, and then repeatedly spraying spittle around when I don't. But I believe you were mentioning "habits"?
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Please "6". Perhaps you have developed delusions of bureaucratic grandeur. Allow me to suggest that you spend a few minutes grovelling at my feet, shining my shoes, after which I will permit you to purchase my lunch and for free I will toss in a lesson how to fix your nasty slice off the tee. Allegory? Who said anything about allegory? (Gotta drop these hints for special needs "anon")
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Not quite patent law only. The Court also applies similar analysis to pornography.
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Sigh. Dear General Curtis "anon" LeMay, I realize I am not Dickens or Descartes but perhaps if you read those masters once in a while to supplement a steady diet of CAFC opinions, patent applications, and Patently-o diarrhea, admittedly poorly imitated satire might not be so opaque, even after the extra Sunday evening sherry. And LB, thanks for thinking before "nuking" me.
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Comments here are WAY too harsh on the law of patent-eligibility. In its current state it is a thing of beauty, entirely befitting of an advanced society that is capable of discerning subtleties in seemingly ordinary things. Attend, grasshoppers: Section 101 says any new process can be patented. TOO SIMPLE. So the Supreme Court originates an "abstract idea" exception and the beauty of it is lost on troglodytes like anon et al. who fail to apprehend that this exception is the legal equivalent to quantum mechanics and I challenge you to get more sophisticated than that. Think of it in terms of the wave-particle duality in which if you erect an experiment to show that light is a wave, light acts like a wave, and if you erect an experiment to show light is a particle, it acts like a particle. Same thing here and you call yourselves scientists and engineers yet you are blind. Go into any Section 101 issue with the impression that the claim is abstract and presto! the analysis shows the claim is abstract. Go into any Section 101 issue with the impression that the claim is NOT abstract and presto! the analysis shows the claim is NOT abstract. Not a single Supreme Court case on the topic deviates from this wise and immutable principle. So leave the Supreme Court's abstract invention of the abstract idea exception which cannot be defined alone. Leave it alone and eat your bread and soup which has been paid for by the legal fees you earn from doing nothing more complex than deciding ab initio whether something is abstract or not, depending on whom you represent, and then doing nothing more difficult or productive than erecting an analysis that ineluctably will prove your position as a fait accompli. Ingrates.
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Sorry anon, your closed, human-centric view of logic is flawed and has led you into confusing an immutable universe with evolving human understanding of it. Or do you have evidence of a law of nature that has recently emerged in fact, as opposed to being recently understood? A recently understood law of nature that has always existed by definition cannot survive 102. Nor can it survive 101 as written, since it would not be a new process, machine, manufacture, or composition. Yes, I agree we know what Court is to blame and it began the blunder by initially erecting superfluous "exceptions" to 101.
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"the precise label used to strike the claim down matters little if everyone understands the real test being applied is an economics-based policy balancing." Nonsense on stilts. Worse gobbledegook than the mess the Supremes created when they invented the abstract idea dogma, since "abstract" cannot be defined and as case law has amplified, is in the eye of the beholder. A gauzy "economics-based policy balancing" can be used by any mediocrity to advocate any particular position on either side of any issue.
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