Patent-holding companies, who have the funds to enforce purchased portfolios, do not seem to be the intended target, at least in this round. Intellectual Ventures and Acacia publicly proclaim themselves nonplussed by this vile turn of events by rabid judges and politicians.

Instead, it's individuals that the courts want to rob. Rader: "One sign of potential abuse is when a single patent holder sues...."

The war on "patent trolls" by the courts is illicit and illegal. But it's practically ironic to call something "illegal" when those who enforce the law ignore statute and indulge their corrupt biases.

Rader reveals his sociopathic fantasies about inventors as foreign-based extortionists in a rambling podcast, regaling the audience with his ignorance of history and how the patent system and business world actually operate. The podcast is, of course, conducted by sycophants, with brown-nosing lawyers soliciting Rader's facile views. Hal Wegner remarks: "Commentaries have been received from a variety of sources, generally in strong support of the statements made by Chief Judge Randall R. Rader in The New York Times."

The corrupt federal courts, from district level to the Supremes, have long biased their rulings to protect companies. This has become increasingly apparent in recent years with burgeoning case law that is self-contradictory, and appeals court rulings that are fractious. Each year, Federal courts steal billions of dollars away from legitimate inventors, shoveling patents into the public domain as an erstwhile corporate subsidy.

Now the administration has blundered in. In an inscrutable oxymoron, President Obama let fly several executive orders "to protect innovators from frivolous litigation." Obama ordered the PTO to tighten scrutiny. In other orders, Obama aims to protect businesses who buy patented products, which practically covers anything with any technological sophistication, including most everything that is electronic.

Obama's strident orders have created corporate concerns. Microsoft has expressed dismay at some of the proposals, as have others.

States are helping out by passing laws that expressly let companies sued for patent infringement bite back with their own law suits. Never mind that patents are under federal jurisdiction. Politicians at every level corrupt legal rights to vie for the favor of moneyed interests.

The cost of defense against patent infringement is enormous; not uncommonly, several million dollars. You get all the justice you can pay for, and small companies can hardly afford the ticket.

The problem is that there is no low-cost mechanism to counter an assertion of infringement. Patent reexamination is the cheapest path, but that can easily cost up to $100,000 per patent, and the courts are reluctant to stop the litigation train once it gets going.

The best solution would be to abolish patents. In the large, the system does not encourage innovation. Individual inventors cannot enforce their patent rights before the corrupt courts. Companies steal new technologies as they please with judicial support.

The problem with abolishment, besides putting a lot of lawyers out of work, is that foreign companies could outcompete domestic companies. Which is why the plutocratic government here is abusing the law to keep patents in the corporate quiver, while eviscerating patent rights for everyone else.

The doctrine of patent exhaustion limits a patentee's right to control what others can do with an article embodying or containing an invention. Under the doctrine, "the initial authorized sale of a patented item terminates all patent rights to that item." Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617, 625 (2008). And by "exhaust[ing] the [patentee's] monopoly" in that item, the sale confers on the purchaser, or any subsequent owner, "the right to use [or] sell" the thing as he sees fit. United States v. Univis Lens Co., 316 U. S. 241, 249-250 (1942). We have explained the basis for the doctrine as follows:"[T]he purpose of the patent law is fulfilled with respect to any particular article when the patentee has received his reward . . . by the sale of the article"; once that "purpose is realized the patent law affords no basis for restraining the use and enjoyment of the thing sold." Id., at 251.

Petitioner Bowman purchased Roundup Ready soybean seed for his first crop of each growing season from a company associated with Monsanto and followed the terms of the licensing agreement. But to reduce costs for his riskier late-season planting, Bowman purchased soybeans intended for consumption from a grain elevator; planted them; treated the plants with glyphosate, killing all plants without the Roundup Ready trait; harvested the resulting soybeans that contained that trait; and saved some of these harvested seeds to use in his late-season planting the next season. After discovering this practice, Monsanto sued Bowman for patent infringement. Bowman raised the defense of patent exhaustion, which gives the purchaser of a patented article, or any subsequent owner, the right to use or resell that article. The District Court rejected Bowman's defense and the Federal Circuit affirmed.

Applying legal logic with any rigor whatsoever, the patent was exhausted when Bowman sold the seeds. Bowman's purchase of seeds from a grain elevator furthers that conclusion. If Bowman was guilty of patent infringement for using patented seeds, the grain elevator infringed by selling the seeds. Instead, exhausting logic in the process, according to the Supreme Court in Bowman v. Monsanto, seed patents are exhausted until their use impinges on a corporate patent-holder's potential profit.

Simple legal terminology takes a beating here. The seriatim opinions (a series written by individual judges, as singular consensus is lacking) in this case is instead labeled per curiam, which is typically a short unanimous opinion that does not identify the opinion's author.

While Chief Judge Rader is correct to note that no single opinion issued today commands a majority, seven of the ten members, a majority, of this en banc court have agreed that the method and computer-readable medium claims before us fail to recite patent-eligible subject matter. In addition, eight judges, a majority, have concluded that the particular method, medium, and system claims at issue in this case should rise or fall together in the §101 analysis.

In essence, there is no consensus in how to interpret §101.

Judge Lourie, with Dyk, Prost, Reyna and Wallach along, points out the self-contradictory nature of §101, in being both a broad grant by Congress, while restricted by the courts. Lourie admits that the court has a tenuous grasp on technology with regard to patentability, particularly computers.

The root problem, if there is one, is the CAFC's evisceration of  §112 ¶2, which requires definite claims. If the claims are as broad as some judges opine, they should be unpatentable for indefiniteness. But then, the difference between being broad and being abstract is beyond the grasp of the CAFC bench.

"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C. § 101 (2006). Short and unadorned, § 101 appears deceptively simple on its face, yet its proper application to computer-implemented inventions and in various other fields of technology has long vexed this and other courts.

The statute sets forth four broadly stated categories of patent-eligible subject matter: processes, machines, manufactures, and compositions of matter. As the Supreme Court has explained, Congress intended that the statutory categories would be broad and inclusive to best serve the patent system's constitutional objective of encouraging innovation. See Diamond v. Chakrabarty, 447 U.S. 303, 308-09 (1980) ("In choosing such expansive terms as 'manufacture' and 'composition of matter,' modified by the comprehensive 'any,' Congress plainly contemplated that the patent laws would be given wide scope."); Bilski, 130 S. Ct. at 3225 ("Congress took this permissive approach to patent eligibility to ensure that 'ingenuity should receive a liberal encouragement.'" (quoting Chakrabarty, 447 U.S. at 308)).

It is also important to recognize that § 101, while far-reaching, only addresses patent eligibility, not overall patentability. The statute directs that an invention that falls within one of its four enumerated categories "may" qualify for a patent; thus, inventions that are patent eligible are not necessarily patentable. As § 101 itself explains, the ultimate question of patentability turns on whether, in addition to presenting a patent-eligible invention, the inventor also satisfies "the conditions and requirements of this title," namely, the novelty, nonobviousness, and disclosure requirements of 35 U.S.C. §§ 102, 103, and 112, among others. See 35 U.S.C. § 101. Congress's broad approach to subject-matter eligibility ensures that the patent office doors remain open to most inventions, but even so, those that gain entry still must surmount various substantive and procedural hurdles that stand between patent eligibility and a valid patent. See Diamond v. Diehr, 450 U.S. 175, 191 (1981).

While the categories of patent-eligible subject matter recited in § 101 are broad, their scope is limited by three important judicially created exceptions. "[L]aws of nature, natural phenomena, and abstract ideas" are excluded from patent eligibility, id. at 185, because such fundamental discoveries represent "the basic tools of scientific and technological work," Gottschalk v. Benson, 409 U.S. 63, 67 (1972). Thus, even inventions that fit within one or more of the statutory categories are not patent eligible if drawn to a law of nature, a natural phenomenon, or an abstract idea. The underlying concern is that patents covering such elemental concepts would reach too far and claim too much, on balance obstructing rather than catalyzing innovation. But danger also lies in applying the judicial exceptions too aggressively because "all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas." Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293 (2012). Taken too far, the exceptions could swallow patent law entirely.

Accordingly, the basic steps in a patent-eligibility analysis can be summarized as follows. We must first ask whether the claimed invention is a process, machine, manufacture, or composition of matter. If not, the claim is ineligible under § 101. If the invention falls within one of the statutory categories, we must then determine whether any of the three judicial exceptions nonetheless bars such a claim--is the claim drawn to a patent-eligible law of nature, natural phenomenon, or abstract idea? If so, the claim is not patent eligible. Only claims that pass both inquiries satisfy § 101.

While simple enough to state, the patent-eligibility test has proven quite difficult to apply. The difficulty lies in consistently and predictably differentiating between, on the one hand, claims that would tie up laws of nature, natural phenomena, or abstract ideas, and, on the other, claims that merely "embody, use, reflect, rest upon, or apply" those fundamental tools. Mayo, 132 S. Ct. at 1293. For example, deciding whether or not a particular claim is abstract can feel subjective and unsystematic, and the debate often trends toward the metaphysical, littered with unhelpful analogies and generalizations. What is needed is a consistent, cohesive, and accessible approach to the § 101 analysis--a framework that will provide guidance and predictability for patent applicants and examiners, litigants, and the courts. As set forth below, the Supreme Court's foundational § 101 jurisprudence offers the guideposts to such a system, one that turns primarily on the practical likelihood of a claim preempting a fundamental concept. We would adopt this approach to address the abstractness of the specific computer-implemented inventions presented in this case, but it might also inform patent-eligibility inquiries arising in other contexts.

The claims go to a particular and specific implementation; not really broad at all. But the gallows is set, so the patents must swing. The root problem is that the patents are simply too valuable to be held by some pipsqueak company in Oz.

[U]pholding Alice's claims to methods of financial intermediation "would preempt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea."

The basic confusion over computerization is laughable, if not pathetic for the court's misapprehension. As if software were metaphorical voodoo, Lourie lays out how its implementation creates an abstraction when written as a patent claim.

[C]omputers that have routinely been adapted by software consisting of abstract ideas, and claimed as such, to do all sorts of tasks that formerly were performed by humans. And the Supreme Court has told us that, while avoiding confusion between § 101 and §§ 102 and 103, merely adding existing computer technology to abstract ideas--mental steps--does not as a matter of substance convert an abstract idea into a machine.

That is what we face when we have a series of claims to abstract methods and computers fitted to carry out those methods. We are not here faced with a computer per se. Such are surely patent-eligible machines. We are faced with abstract methods coupled with computers adapted to perform those methods.

Chief Judge Rader's opinion, joined by judges Linn, Moore, and O'Malley, is unenlightening. Rader's peruses the legislative history of the statute to no effect. His analysis is vapid.

The relevant inquiry must be whether a claim includes meaningful limitations restricting it to an application, rather than merely an abstract idea.

And, we know that, even if a claim does not wholly pre-empt an abstract idea, it still will not be limited meaningfully if it contains only insignificant or token preor post-solution activity--such as identifying a relevant audience, a category of use, field of use, or technological environment.

[T]he fact that a claim is limited by a tie to a computer is an important indication of patent eligibility.

The key to this inquiry is whether the claims tie the otherwise abstract idea to a specific way of doing something with a computer, or a specific computer for doing something; if so, they likely will be patent eligible, unlike claims directed to nothing more than the idea of doing that thing on a computer.

Rader fundamentally misstates how software works. The ignorance is shocking.

This court long ago recognized that a computer programmed to perform a specific function is a new machine with individualized circuitry created and used by the operation of the software.

In reality, software simply directs a general-purpose algorithmic machine to a particular set of functions.

A telling footnote that goes to the heart of the issue is nonsensical.

We must disagree with Judge Lourie that a computer must do something other than what a computer does before it may be considered a patent-eligible invention. See Lourie Op. at 27 ("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."). Everything done by a computer can be done by a human. Requiring a computer to do something that a human could not would mean that computer implementation could never produce patent eligibility. If a computer can do what a human can in a better, specifically limited way, it could be patent eligible. Indeed, even an increase in speed alone may be sufficient to result in a meaningful limitation; if a computer can perform a process that would take a human an entire lifetime, a claim covering that solution should be sufficiently limited to be patent eligible.

The fact is that computer software, as a matter of course, does things that a human cannot. (Animation (CGI) is one example. Certain effects are achieved in movies that are practically impossible to generate otherwise. Any film buff knows this to be the case, especially considering science fiction movie "special effects".) The issue properly addressed here is not whether software is patent-eligible, but whether automation is itself conceptually new. Doing something on a computer that can be done by hand, no matter how tedious, is not patentable if it has been done. But that is a prior art invalidity question, not §101.

Although joined by Rader, Linn and O'Malley, Judge Moore has different take, finding the system claims patent eligible. She does appreciate the magnitude of inept jurisprudence on the CAFC bench.

I am concerned that the current interpretation of § 101, and in particular the abstract idea exception, is causing a free fall in the patent system. The Supreme Court has taken a number of our recent decisions and, in each instance, concluded that the claims at issue were not patent-eligible. See Bilski, Prometheus, Myriad (under consideration). Today, several of my colleagues would take that precedent significantly further, lumping together the asserted method, media, and system claims, and holding that they are all patent-ineligible under § 101. Holding that all of these claims are directed to no more than an abstract idea gives staggering breadth to what is meant to be a narrow judicial exception. And let's be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents.

To get to their conclusion, my colleagues trample upon a mountain of precedent that requires us to evaluate each claim as a whole when analyzing validity.

Judge Newman surveys the wreckage.

The ascendance of section 101 as an independent source of litigation, separate from the merits of patentability, is a new uncertainty for inventors. The court, now rehearing this case en banc, hoped to ameliorate this uncertainty by providing objective standards for section 101 patent-eligibility. Instead we have propounded at least three incompatible standards, devoid of consensus, serving simply to add to the unreliability and cost of the system of patents as an incentive for innovation. With today's judicial deadlock, the only assurance is that any successful innovation is likely to be challenged in opportunistic litigation, whose result will depend on the random selection of the panel.

Reliable application of legal principles underlies the economic incentive purpose of patent law, in turn implementing the benefits to the public of technology-based advances, and the benefits to the nation of industrial activity, employment, and economic growth. Today's irresolution concerning section 101 affects not only this court and the trial courts, but also the PTO examiners and agency tribunals, and all who invent and invest in new technology. The uncertainty of administrative and judicial outcome and the high cost of resolution are a disincentive to both innovators and competitors.

Newman then creates a wish list that has no fulfillment. One item - that "experimental use of patented information" not be barred - has nothing to do with this case; instead going to the Myriad opinion, where the CAFC let discovered DNA sequences be treated as patentable. Newman's wish is expressly against the law (§ 271: "whoever without authority makes, uses...").

A scolding dissent by Judges Linn and O'Malley (who had otherwise joined in much of the gibberish).

The method, media, and system claims we review today must rise and fall together; either they are all patent eligible or they are not. This is so, not because, as Judge Lourie's opinion concludes, they are all tainted by reference to the same abstract concept, but because the record we are presented makes clear that they are grounded by the same meaningful limitations that render them patent eligible.

The district court jumped the gun to kill the claims.

The summary judgment process occurred prior to construction of the asserted claims and their attendant limitations. Indeed, the court considered and granted CLS's summary judgment motion before ever conducting a hearing pursuant to Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), and even before briefing on claim construction. As such, no determination has ever been made regarding how one of skill in the art would understand the claims as of the date of issuance. And, no careful assessment of the intrinsic record or prosecution history has ever occurred; much of this was never even made a part of the trial record.

Our colleagues ignore the record of the lower court proceedings and the stipulations by which CLS agrees it must be bound... [The other judges construe the claims ridiculously broadly to reach their conclusions.] None of those judges explains how the record supports the claim constructions in which they engage, however... And, they summarily reject the trial court's assumption that the method claims require the same computer implementation as the system claims.

Lourie is a special object of contempt for Linn and O'Malley.

Judge Lourie not only divorces his analysis from the record, he turns it on its head. [H]e ignores the substance of the stipulations and assumptions upon which the proceedings below were predicated. He then takes it upon himself to construe the claims, giving the method claims their broadest possible interpretation in the process. Indeed, Judge Lourie begins, not with the record, or even a proper exercise in claim construction, but with identification of what he finds to be the fundamental concept "wrapped up in the claim."

The denouement in this dissent:

The answer is not to rewrite the law by broadening the abstract ideas exception to § 101, especially if the only way to do so is to ignore the limitations in the claims actually before us.

In the finale, Chief Judge Rader indulges in nostalgic sentiment of 25 years on the bench, with dismay over the cacophonous discord here. As Chief Judge his primary responsibility is to sustain the court's respect of the law, by harnessing the collective experience of those with whom he shares the bench so as to reasonably interpret statute, and so provide guidance that affords consistency. Instead, this case is a pinnacle of failure for the CAFC, and especially for Chief Judge Rader, in exposing his incompetence in every facet (logician, legal scholar, leader).

In the end, a singular realization emerges: the CAFC itself seeing that its inability to establishing a meaningful consensus is a disgrace with a high cost.

Patents are a quite crooked game in this country, readily subject to judicial bias and caprice, always in the service of plutocracy. This case goes a long way in solidifying that impression.

The test for sufficiency of the written description, which is the same for either a design or a utility patent, has been expressed as "whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date." Id. In the context of design patents, the drawings provide the written description of the invention. Daniels, 144 F.3d at 1456; In re Klein, 987 F.2d 1569, 1571 (Fed. Cir. 1993) ("[U]sual[ly] in design applications, there is no description other than the drawings."). Thus, when an issue of priority arises under § 120 in the context of design patent prosecution, one looks to the drawings of the earlier application for disclosure of the subject matter claimed in the later application. Daniels, 144 F.3d at 1456; see also Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991).

The subject of this appeal is the broken line that Owens introduced in his continuation application. The parties agree that the parent application discloses no boundary that corresponds (either explicitly or implicitly) to this newly-added broken line. However, the parties also agree that a design patentee may, under certain circumstances, introduce via amendment a straight broken line without adding new matter, even "[w]here no [corresponding] boundary line is shown in a design application as originally filed." MPEP § 1503.02.

The parties refer to these broken-line boundaries as "unclaimed boundary" lines because the lines are "not intended to form part of the claimed design" and do "not exist in reality in the article embodying the design." Id. Rather, when an unclaimed boundary line is introduced via amendment or continuation, it is "understood that the claimed design extends to the [unclaimed] boundary but does not include the [unclaimed] boundary." Id.

In other words, when an unclaimed boundary line divides a previously claimed area, it indicates that the applicant has disclaimed the portion beyond the boundary while claiming the area within it. Where permissible, unclaimed boundary lines allow the patentee to adjust his patent coverage and encompass embodiments that differ slightly but insignificantly from the originally-filed design. However, like all amendments made during prosecution, these lines must comply the written description requirement to receive the benefit of priority under § 120.

If that seems somewhat muddled, it gets worse.

The Manuel of Patent Examining Procedure ("MPEP") provides some direction in this regard, saying that unclaimed boundary lines "may" be acceptable when "connecting the ends of existing full lines." MPEP § 1503.02. Were this the rule, it might be acceptable for Owens to bisect his front panel with a broken line along the pentagon's widest point.

Prior PTO practice offers similarly ambiguous guidance. For instance, the amicus brief noted certain past allowances that seemingly contradict both the MPEP and the PTO's rejection of the Owens continuation.

In our view, the best advice for future applicants was presented in the PTO's brief, which argued that unclaimed boundary lines typically should satisfy the written description requirement only if they make explicit a boundary that already exists, but was unclaimed, in the original disclosure. Although counsel for the PTO conceded at oral argument that he could not reconcile all past allowances under this standard, he maintained that all future applications will be evaluated according to it.

Affirmed.

The rule of law exists to provide adjudicative consistency, however foolish. Ralph Waldo Emerson opined: "a foolish consistency is the hobgoblin of small minds." As the USPTO and CAFC lack small minds, consistency can be considered foolish, however it changes the law.

When filing a patent application, first dot the i's and cross the t's, as well as putting in all the dotted lines you think you'll need.

One way of proving infringement under the doctrine of equivalents is to show, for each claim limitation, that the accused product "performs substantially the same function in substantially the same way with substantially the same result as each claim limitation of the patented product." Crown Packaging Tech., Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1312 (Fed. Cir. 2009). This is a question of fact. Id.; Anchor Wall Sys., Inc. v. Rockwood Retaining Walls, Inc., 340 F.3d 1298, 1313 (Fed. Cir. 2003).

Detailed application of the function-way result test to the claim element and the allegedly equivalent feature of the accused product is sufficient to create a genuine issue of material fact for the jury to resolve.

Reversed and remanded.

Judge Dyk dissented, beginning with an echo of the same case law to different effect.

The function-way-result test for equivalents requires "showing on a limitation by limitation basis that the accused product performs substantially the same function in substantially the same way with substantially the same result." Crown Packaging Tech., Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1312 (Fed. Cir. 2009) (emphasis added). Similarly, we have recently reiterated that "[r]egardless [of] how the equivalence test is articulated, 'the doctrine of equivalents must be applied to individual limitations of the claim, not to the invention as a whole.'" Mirror Worlds, LLC v. Apple Inc., 692 F.3d 1351, 1357 (Fed. Cir. 2012) (quoting Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29 (1997) (emphasis added)). This guidance to consider each claim limitation under the doctrine of equivalents flows from the principles of claim vitiation, which require a determination of whether there is a substantial difference or a difference in kind between each individual claim limitation and the accused product. See Trading Techs. Int'l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1355 (Fed. Cir. 2010).

On the panel, Judge Dyk held the short straw in agreeing with the district court, arguing that the same result could not be had because the way the function works is not the same.

But there is no evidence in the record - from Dr. West or elsewhere - explaining why the difference between the claimed invention and the accused device (i.e., that the capacitor in the accused device is located inside, as opposed to outside, the first current circuit) is insubstantial or how the function-way-result test is satisfied as to this limitation.

Ready application of the law continues to elude U.S. patent courts at every level. Under the current regime of obtuseness, patent litigation is guaranteed to be a case-by-case crapshoot, where bias and subjectivity decide the day over rigorous legal logic applied to genuine issues of material fact. However damaging to rule of law in the large, case-by-case how courts like to decide matters, precisely because it affords subjective bias.