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The updates consist of a complete replacement manual and pertinent Web-based or CD documentation. Page 20: Hp Encourages Your Comments HP Encourages Your Comments HP welcomes your feedback on this publication. Page 21 Overview The HP superscalable sx2000 processor chipset is the new chipset for the Superdome high-end platform. The sx2000 provides the final major hardware upgrade to the Superdome platform. O – backplane cables – And the addition of a redundant, hot swappable clock source. According to the patent, this resampling of investment data permits analysis that doesn’t assume a normal distribution of the data. On a judgment on the pleadings, the district court found all claims ineligible and the Federal Circuit affirmed.
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Do you remember obviousness before KSR v. If we knew how to more flexibly identify rationales for obviousness post-KSR, it was not clear how to more flexibly apply patent eligibility without the machine or transformation test after Bilski and Alice. A machine, apparently, was now just a clue. But identifying how to apply the more general principles from Alice and Bilski was not as easy to apply as a flexible obviousness test.
General principles for finding claims eligible have been elusive. The claims were directed to a particular improvement in the computer’s functionality. The claimed self-referential table was a specific type of data structure designed to improve the way a computer stores and retrieves data in memory. The claimed invention provided flexibility that prior art processors did not possess, and obviated the need to design a separate memory system for each type of processor. They employ a new kind of file that enables a computer security system to do things it could not do before, including accumulating and utilizing newly available, behavior-based information about potential threats. In this case, the court then looked to the specification to confirm that these particulars are interesting.
In this framework, the first question appears to be whether the claims actually do provide a particular solution to a problem. I’ll be taking a deeper look at the broader applicability of this approach to prior decisions in a later post. Alice test is troublesome is that it facially appears to suggest that additional limitations or concepts in the claim beyond the abstract idea ought to, alone, render a claim eligible. USPTO’s Patent Trial and Appeal Board has responded to the U.
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Supreme Court’s June 2014 Alice decision. It also shows how applicants can use the PTAB’s recent decisions to substantially increase their chances of success before the board. We look at appeals coming out of the USPTO’s business method work groups 3620, 3680 and 3690. Applicants have had a difficult time getting business method patents allowed since Alice.
Mayo test right after the Alice decision. 10 within a month of the decision. As has been well documented, the Supreme Court’s decision in Alice Corp. CLS Bank has had a dramatic impact on the allowability of computer implemented inventions. This second article in our series explores the dynamics of that impact on the e-commerce arts. Alice had an immediate and substantial impact reducing allowances per month by a factor of 10.
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E-Commerce patents fall under the general category of business methods and are examined in work groups 3620 and 3680. US patent classifications and the examining art units. The old US patent classifications are referenced because they are still used to assign applications to art units. Work groups 3620 and 3680 act as parallel work groups with matching individual art units handling applications in the same e-commerce subclasses. The applications are assigned roughly equally to the matching art units as they come in from the classification contractor. The subclasses with the most applications are Discounts or Incentives, Operations Research, Electronic Shopping, Business Cryptography, and Healthcare Management. The allowances per month have actually increased in the primary examining art unit 3685.
The allowances per month dropped almost immediately after the Alice decision and the USPTO preliminary guidance of June of 2014. Examiners have related to me that there was a tremendous urgency on the part of USPTO management to implement the Alice decision as soon as possible. This was in sharp contrast to how management reacted to the Bilski decision in 2010. The drop in allowances per month was followed by a rise in allowances per month coinciding with the first comprehensive guidance given to examiners in December of 2014. It looked like examiners and applicants were able to use the guidance to find common ground.
The abandons per month grew steadily after Alice but appear to have recently gone down. Abandons per month are still very high, however, relative to allowances per month. Figure 1 also shows the notices of appeal filed per month. The notices of appeal per month dropped after Alice, rose in 2015 and have since fallen back to about their pre Alice level. Most notices of appeal have been briefed and are proceeding to the PTAB. Management urgency in implementing the Alice decision is reflected in the large number of allowances that were reviewed and immediately withdrawn in July and August of 2014. This immediate recall of allowances is similar to what happened in work group 3690.
Work groups 3620 and 3680, however, have continued the practice of reviewing allowances after they are mailed and withdrawing those that the reviewers don’t feel satisfy Alice. This is illustrated in figure 2 below. Figure 2 shows all allowances that have been mailed between January of 2014 and September of 2016. The allowances that have been withdrawn in the ongoing recalls are shown in black outlined by red. Allowances that have issued as patents are shown in green.
The ongoing recalls appear to occur on about a monthly basis with different individual art units being reviewed in a given month. All of the withdrawn allowances shown above had 101 rejections after the allowance. Many of the ongoing recalls also have had 112, 102 and 103 rejections. This pattern of ongoing recalls is expressly at odds with statements made by the USPTO that the recalls immediately after Alice were a one-time event. The last withdrawal I’ve seen was in October of 2016.
Allowances per month have fallen since Alice, but there are still a significant number of patents issuing in these work groups. The majority of allowed cases that do issue have had to overcome a post Alice 101 rejection. I reviewed a random selection of 200 file wrappers for these allowed cases to see if there were any common themes in the claim amendments that led to their overcoming their respective 101 rejections. One of the major challenges of figuring out why some cases are being allowed and some are not is that only a few examiners give a detailed reason for why a 101 rejection was overcome in their notices of allowance.
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Examples of the limitations in each theme are shown in Table 2 below. The percentage of applications falling into each theme is shown in the header rows. None of these limitations are magic bullets. Most applications that have similar limitations are still being rejected under 101.
Nonetheless, the applications that do have these limitations are being allowed at a higher rate than those that don’t. The fact that incorporating physical limitations into an e-commerce claim leads to a holding of statutory subject matter makes a certain amount of sense. At least superficially the claim looks more like standard patentable subject matter. Mobile devices and sales kiosks are physical things. Similarly, a claim that measures a physical quantity makes the claim look like the statutory claims in Diamond v. It is not clear to me, however, why cryptography should stand out as statutory subject matter. Cryptography can be characterized as the purely mathematical transformation of data from one coding scheme to another.
Purely mathematical transformations were held to be non-statutory in Gottschalk v. If anything, the allowances per month have gone up. This is not to say that these applications aren’t getting 101 rejections, but it does indicate that overcoming a 101 rejection in this art unit is relatively straightforward. It also suggests that applicants would do well to incorporate any aspect of cryptography or system security related to their invention in their applications. The answer that came up was the health care management art units 3626 and 3686.
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Figure 4 below shows the combined allowances per month for these art units. These are among the most devastated art units I have seen so far. Similar to financial services, allowances per month have fallen by about a factor of 10. There apparently is very little in the field of health care management innovation that these art units consider to be statutory. Yet it’s hard to imagine a field more crucial to the welfare of the people of the United States. Political solutions alone won’t solve our skyrocketing health care costs.
Applicants seeking high risk investment to implement health care management innovations may have a significant hurdle to overcome if they can’t get patents. High risk investors need patents to protect their investments. If there is no likelihood of protection, there is less likelihood of investment. If there is no investment, there is no progress in solving these extremely difficult problems. Many applicants in the business method fields of finance and e-commerce fully appreciate that convincing an examiner to allow their claims is almost impossible. Quite naturally they are turning to an appeal.
In our next article we will examine how appeals in these work groups are faring to see if that provides any realistic hope of overcoming a post Alice 101 rejection. Mark Nowotarski is a registered U. Prior to being a patent agent, Mark was a corporate research fellow for Praxair where he developed and patented green manufacturing technologies for the electronics, metals, food and healthcare industries. After January 1, 2016, the USPTO no longer published the US Patent Classifications on issued patents or pending applications, and instead used the Cooperative Patent Classifications.
However, applications are still assigned to art units based on the old USPTO classification system. These are the classifications still used in PAIR. Classification of US patent applications is done by an outside contractor, but it is confirmed by the SPEs when they get cases assigned to their art units. A significant number of business cryptography applications are also examined in art unit 3621.
The allowances per month of business cryptography applications have also increased in art unit 3621. The most significant Federal Circuit decision in March was Thales Visionix, Inc. United States, another case finding eligible subject matter. What distinguishes this case—and demonstrates the inherently subjective I-know-it-when-I-see-it nature of the Alice test—is the extraordinary breadth of the claims. A method comprising determining an orientation of an object relative to a moving reference frame based on signals from two inertial sensors mounted respectively on the object and on the moving reference frame.
We hold that the ’159 patent claims at issue in this appeal are not directed to an abstract idea. The claims specify a particular configuration of inertial sensors and a particular method of using the raw data from the sensors in order to more accurately calculate the position and orientation of an object on a moving platform. This statement and the focus on the particularity of the claim is at odds with actual claim language and with the way the Alice test is normally applied. No limitation of how mounted, how far or near each other, or they are oriented with respect to each other, or other physical parameters. There is no limitation on the kinds of signals, or how the determination is done. In other words, this simply claims the result of getting an orientation when you have two sensors, one mounted on some object and one mounted on a moving reference frame. With a bit of obvious word substitution, this language applies directly to Thales’ claim.