Rolling Snake Eyes in CAFC Dice Toss Game

Woe onto he who rolls
into the wrong panel on the CAFC.

To some judges, anything that smells of software
is no better than that which stenches of mendacity ... or pornography ... or death (death to all software IP they say!).

T'is the offensive smell of mendacity and abstractness.
They know it when they sniff it.
CYBERFONE SYSTEMS v. CNN INTERACTIVE GROUP

“There ain’t nothin’ more powerful than the odor of mendacity …You can smell it. It smells like death” --Cat on a Hot Tin Roof (Tennessee Williams)

Yes.
Death to your software patent if the dice roll you into Judge Lourie's panel.

"The “telephone” recited in claim 1 is not a specific machine, and adds nothing of significance to the claimed abstract idea. ... We agree with the district court that the ’060 patent claims ineligible subject matter—an abstract idea—and that the patent is invalid under § 101."

Yes operator.
I want to make this a direct shoe machine to shoe machine personal call.

What? Not specific enough?
Just as I suspected. You must be an agent of KAOS,
a secret Luddite organization hell bent on sending America back
to the 18th Century.

State of the Unleashed Dogs Speech (#SOTUDS)

America, it seems, is filled with eager packs of "innovative" smartphone dogs all biting at the chomp for the chance to be "UNLEASHED" onto the free markets so they can "innovate", come up with the next GREAT American Discovery and surge onward and everwards against that forward revolving "Wheel of Progress" --but only of course, if we first rip all the enforcement teeth out of their chomping gums (see HR 3309).

From Obama's 2014 SOTU Speech:

"We know that the nation that goes all-in on innovation today will own the global economy tomorrow. This is an edge America cannot surrender.
Federally-funded research helped lead to the ideas and inventions behind Google and smartphones."

"That’s why Congress should undo the damage done by last year’s cuts to basic research so we can unleash the next Great American Discovery – whether it’s vaccines that stay ahead of drug-resistant bacteria, or paper-thin material that’s stronger than [Reardon] steel. And let’s pass a PATENT REFORM bill (a.k.a. HR 3309)that allows our businesses [(fogetta bout our inventors)] to stay focused on INNOVATION, not costly, needless litigation.

Now, one of the biggest factors in bringing more jobs back is our commitment to American energy. The all-of-the-above energy strategy I announced a few years ago is working, and today, America is closer to energy independence than we’ve been in decades. One of the reasons why is natural gas – if extracted safely, it [METHANE] is the bridge fuel that can power our economy with less of the carbon pollution that causes Climate Change."

"Cory is here tonight. And like the Army he loves, like the America he serves, Sergeant First Class Cory Remsburg never gives up, and he does not quit. My fellow Americans, men and women like Cory remind us that America has never come easy. Our freedom, our democracy, has never been easy. Sometimes we stumble; we make mistakes; we get frustrated or discouraged. But for more than two hundred years, we have put those things aside and placed our collective shoulder to the wheel of progress – to create and build and expand the possibilities of individual achievement; to free other nations from tyranny and fear; to promote justice, and fairness, and equality under the law, so that the words set to paper by our founders [**] are made real for every citizen [(even inventors --nah, not really)]. The America we want for our kids – a rising America where honest work is plentiful and communities are strong; where prosperity is widely shared and opportunity for all lets us go as far as our dreams and toil will take us"

(**Article I, Section 8:
The Congress shall have Power ...
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

We, the Appellate Jury

When in the course of judicial events, there arises a need for the appellate to pull in the reigns of progress and take over the avocation normally reserved for experts of science, particularly if said experts might opine that things software are worthy of patent protection, then it behooves those of us on the appellate side of the bench to SUMMARILY override the normal route of due process and to find facts on our own without ever giving chance of voice to those who might know better.
Therefore, ...

Hold the Benjamin Franklin presses!
We have let those horses race ahead of us.

Politeness demands that we first introduce the actors
and the stage from which they perform.

Our case in point: SMARTGENE v. ADVANCED BIOLOGICAL

The performing actors:
1.) Judge Lourie: Bachelor’s degree from Harvard University (1956), Master’s degree in organic chemistry from the University of Wisconsin (1958), Ph.D. in chemistry from the University of Pennsylvania (1965).
2.) Judge Dyk: A.B. from Harvard College in 1958
3.) Judge Taranto: B.A. from Pomona College in 1977

These "learned hands" have decided on their own that an ordinary doctor can perform in his head the operations of an inferencing engine:

Inference Engine
Inference engines are well known by those of skill in the art and need not be described further herein. Each knowledge base used by an inference engine according to the present invention is a collection of rules and methods authored by a clinical advisory panel of HIV-treating physicians and scientists. A knowledge base may have subjective rules, objective rules, and system-generated rules. Objective rules are based on industry established facts regarding the treatment of HIV using antiretroviral therapy and are drawn from the package insert information of antiretroviral drug manufacturers and from peer reviewed and published journal articles. An example of an objective rule would be an antiretroviral to antiretroviral contraindication such as:
Rule #1: If the eval therapy contains Zidovudine (AZT) and Stavudine (d4T), then reject the therapy.
US 6,188,988

Return of the "I know IT when I see IT" meme

It's back.
The "I know IT when I see IT" meme.
See What Will SCOTUS ‘See’ and Know, in Alice?

(See also the earlier dated, Go Ask Alice )

The Other Trap Door Drops Open: SCOTUS v. Software Patents

On December 6, 2013 (yet another day that may live in infamy), the US Supreme Court announced that it will hear "Alice". In other words: The Other Trap Door Drops Open: SCOTUS v. Software Patents

The sole question presented on Writ for Cert is this:
QUESTION PRESENTED
Whether claims to computer-implemented inventions —including claims to systems and machines, processes, and items of manufacture— are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court?

Alice Corporation Pty. Ltd. v. CLS Bank International

Interestingly, the Petitioner is Alice Corp., the owner of the software patent in question. The 5-5 tie at the Federal Circuit left Alice in the limbo state of not having overturned the lower court ruling that all of its claims are patent "ineligible". Alice itself has nothing more to lose by posing the above question to SCOTUS. But what if SCOTUS says no? What if they say ALL computer-implemented invention—including claims are ineligible? It's a game of Russian Roulette where all our heads are lined up in row next to that of the trigger man's.

More recent blog results on Alice + patents

(still under construction ...)

ABC News calls it the Death of Software Patents

KILL, kill them all --good riddance software patents

Chisum calls Alice a disgrace.

Gallows Latch Door Drop Act For Independent Inventors passes

On December 5, 2013 (a day that may live in infamy), the US House of Representatives passed the Gallows LAtch Door Drop Act For Independent Inventors (GLAD DAFii) -otherwise mislabeled by them as the H.R. 3309: Goodlatte Innovation Act of 2013.

Them who love to hate patents cheered it on as a New Wave of "Innovative" Progress

Arizona Paper Questions "Innovation"[-no more] Act

(still under construction ...)

More YouTubes re Patents and Goodlatte

Recent Blogs mentioning H.R. 3309

Link to Patently-O take on Goodlatte's bill

The Innovation Act is a comprehensive bill aimed at neutralizing patent trolls.

Congress is weakening patents and threatening to kill the innovation economy

More recent blogging re HR 3309

Rise of the Chimerical PHOSITA

In this post-modern patent world,
our judicial truth seekers have cobbled together a new creature.

Behold Super-PHOSITA
(the alien cyber-robotized super humanoid who came to this planet in order to pretend to be a meek and mild artisan having "ordinary" skill in his/her specialized field of routine endeavor, but who underneath it all is actually ... Shhh. Don't tell. It's a secret.).

Super-PHOSITA is all knowing and all powerful.

Super-PHOSITA is at the same time meek, mild and ordinary.

Super-PHOSITA spends his/her time engaged in the "routine" activities of his/her "art".


Super-PHOSITA simultaneously spends his/her time ruminating about ALL publications, analogous or in his/her field and ALL possible combinations of these publications in constant look out for recognition of those permutations which are "obvious" and those few which are not.

See, 2013-10-30 12-1611 PATO RANDALL MFG. v. REA [OPINION] Precedential

"In KSR, the Supreme Court criticized a rigid approach to determining obviousness based on the disclosures of individual prior-art references, with little recourse to the knowledge, creativity, and common sense that an ordinarily skilled artisan would have brought to bear when considering combinations or modifications. KSR, 550 U.S. at 415-22. Rejecting a blinkered focus on individual documents, the Court required an analysis that reads the prior art in context, taking account of “demands known to the design community,” “the background knowledge possessed by a person having ordinary skill in the art,” and “the inferences and creative steps that a person of ordinary skill in the art would employ.” Id. at 418. This “expansive and flexible approach,” id. at 415, is consistent with our own pre-KSR decisions acknowledging that the inquiry “not only permits, but requires, consideration of common knowledge and common sense.”"

"Once it is established that a prevalent, perhaps even predominant, method of stowing a bulkhead panel was to raise it to the ceiling, it is hard [[for us post-modern judges to now ]] .. see why one of skill in the art would not have thought to modify Aquino to include this feature— doing so would allow the designer to achieve the other advantages of the Aquino assembly while using a stowage strategy that was very familiar in the industry."