I'll do my best, though you probably will refuse to undertake the first part of the exercise: thrust your mind back to December 22, 2005, the day before the patent application was filed, and block out everything you've seen since that date.

To unlock their phones, people do things like entering a code or holding down a physical key, because almost everyone's phone has physical keys. Others have flip phones and merely open their phone to wake it up. There are a few phones out there with resistive touch screens like the Palm line... they too use physical sleep/wake switches.

In a somewhat related field, Micron has had a patent application published for unlocking computers by moving the mouse in a geometric shape, such as a line, square, or triangle. They also talk about doing it for touch screens, like those on kiosks or point of sale terminals.

So, say you want to come up with a new, intuitive way to unlock a phone? What do you invent?

Now, I'm sure you jumped up and yelled "slide to unlock!" But is that really true, if it's really 2005 and you've never heard of that?

Plus, say you did implement a slide to unlock feature... would it be like Micron's or Neonode's: draw a geometric shape on a screen with no indication of success or failure or other response until the figure is complete? Why, that increases security, since an intruder wouldn't know that they failed as soon as they deviate from the required line! That seems like a great idea, right?

Back in 2005, no one had thought of having a dynamic image following the user's finger as they drew a line to unlock the phone. No one wrote anything about it, made a prototype, or even apparently mentioned it in passing.

Now jump forward one year, to December 2006... There are still no capacitive touch screen phones on the market. Slide keyboard phones are really popular and, of course, unlock when you physically slide out the keyboard. There are still plenty of flip phones. Palm has a great color smart phone that you unlock with a button on the top (it also doubles as the IR port). How come no one has implemented a slide-to-unlock system if it had been obvious for a full year?

Now jump forward another year. Apple's iPhone is released to great fanfare and includes a slide-to-unlock system. It's the only one on the market that does - which makes you wonder if it's really been obvious for two whole years?

Jump another 18 months. It's now fall 2008 and Samsung comes out with its first modern smartphone. And it implements slide to unlock. In fact, everyone who has put out a smart phone after the iPhone is using slide to unlock systems, including even Palm, who had smart phones before the iPhone that didn't use it. If it had been obvious for almost four years, why hadn't anyone else done it before the iPhone? Was the iPhone the inspiration for everyone? And therefore, can you really say that, years before the iPhone, it was obvious?

If an idea is relatively trivial to implement, but no one ever even had the inkling of a thought to doing it, is it obvious? Or is it one of those simple, beautiful ideas that change an industry once some inventive person first creates it?

But the function of changing the image is covered under utility patents. And simply pounding your fist on the table and saying "As I clearly wrote, it's not novel!" is not persuasive. If you believe it's not novel, then find some prior art showing it. Otherwise, you're just making an unsupported conclusion.

Again, I ask where you see an "unlock image" in what you just said. I also ask where you see Micron's device "continuously moving the unlock image on the touch-sensitive display." In Micron's patent, you draw a pattern on a static screen. No unlock image is displayed, and nothing follows your finger. It's just not there. Micron describes part of the first step - detecting a contact with the touch-sensitive display - and the last step, but does not describe the rest of the first step or the second step.

Thank you for admitting that you haven't yet addressed this part of the claim.

All you've said is: "Micron describes everything in the patent! ... oh, wait, no it doesn't... The Neonode video describes everything, though! ... oh, wait, no, it doesn't... But, uh, ignore both of those failings and my inability to actually find anything that shows that last bit of the claim. It's not novel because I say it's not!"

And sorry, your word about whether it's novel or not isn't enough, just like you can't claim someone is guilty without any evidence. If you haven't found the evidence, you haven't proven jack squat.

People frequently get "bored" when someone calls them out for making unsupported conclusory statements. "Bored", of course, meaning "frustrated and ashamed".

I take it that you either haven't watched the video, haven't read Apple's patent claims, or both? Here's claim 1 from Apple's patent:

See those bolded words above? Go watch the video. Go read the Micron patent. Neither of them have those features.

No, what it comes down to is that you don't understand the difference between "novel" and "obvious". A patent claim is "novel" if it hasn't ever been done before: if I claim a tuna fish and peanut butter sandwich, for example, no one may have ever done that before (with good reason). Therefore, it's "novel". However, if one or more pieces of prior art teach everything in the patent claim and could be easily combined, then it's "obvious": peanut butter sandwiches are known; tuna fish sandwiches are known; it would be trivial to slap the two together. Therefore, even if the pb&t sandwich is novel, it is nonetheless obvious. Clear?

So, let's go back to the Apple slide-to-unlock claim. A physical latch does not, on its own, teach everything in the claim. Therefore, the physical latch does not show that the claim is not novel - or rather, with regard to the physical latch, Apple's patent is novel.
Is it obvious? Maybe... But we need some more prior art that describes the other features in the claim. Otherwise, all you've got is a tuna fish sandwich and no peanut butter, and you can't possibly prove that a pb&t sandwich is obvious.

Nope, there are no patents that read that, and why should now be clear to you: "[Something people have been doing for some period of time between a generation and the beginning of recorded history]" is known; computers/the internet/tablets/touchscreens are known; if it's trivial to do one on the other, then the resulting combination is obvious.

But notice how you hedge - "millions of patents that basically read..." If you have to rewrite the patent claim to say something it's not saying or cut out various features, then you haven't done anything other than prove that your version is obvious. That's as legally and logically sound as saying that a defendant is "basically guilty" so you don't really need evidence.

I wouldn't hold my breath on that... Here's Alice's method claim at issue:

Without taking a position on the merits of that claim, you'll note that it never once mentions a "general purpose computer" - or any hardware, in fact - and doesn't utilize any of the claim drafting tricks you're referring to. While theoretically, the Court could go off on a wild tangent and start discussing patent eligible subject matter generally, including claims that aren't before them, that's very unlikely to happen. Instead, they'll probably just discuss why this particular claim fails under 35 USC 101, and that doesn't require any holding regarding those tricks.

Please point to the touch-sensitive display on a physical latch, as the term "touch-sensitive display" is described in the patent and understood by a person of ordinary skill in the computing arts. It's not "anything that can be touched and is visible to the eye". A latch does not have one.

Most of the unlock mechanisms at the time included entering a code, which could include repeated numbers - e.g. a double tap on a keypad.

Probably not, since there's nothing that requires a straight line movement in Apple's patent, so it would read on curved or circular motion. And there's nothing in the patent that restricts you from using a second finger, so the pinch gesture would probably be obvious in view of Apple's patent.

You haven't done one yet. Perhaps this stuff is actually more difficult than you think?

Go talk to Congress, then, because "process" has been among patentable subject matter in 35 USC 101 since the 1850s.

Why should processes be removed from patent eligible subject matter, beyond the fact that you don't like them? And what defines an "abstract concept" as opposed to a non-"abstract concept"? Is it the recitation of physical hardware?

That's nice and all, but it's still not what's recited in the claim, which has an image being displayed and moved on a touch-sensitive display. You have to actually go by what's listed in the claim, rather than making up new versions or rewriting it to somehow fit your argument.

That can still be quite different. For example, consider a virtual reality system like the Oculus Rift - it's really just a digital analogue of reality, no? Or consider various methods for creating realistic smoke and particle effects in games - they're just digital analogues of real fires, too. Or how about a realistic skybox that properly changes color based on degrees off of the sun position - that's just a digital analogue of Rayleigh and Mie scattering, right? Simulating a real thing, digitally, frequently requires additional steps that are not necessarily obvious when you only consider the real thing.

Now, the real thing is certainly relevant prior art - you couldn't get a patent claim to Mie scattering, since that's inherent in why the sky is blue; and you couldn't get a claim to having virtual smoke rise from a virtual fire. Similarly, Apple can't get a patent that just recites "a digital equivalent of a latch", since the analog latch teaches everything in the claim. Instead, they have to include those additional steps that aren't done in the real version of the thing.

For example, here's claim 1 of the 8,046,721 patent:

Arguably, "unlocking the device if moving [something] from a first location to a predefined location" is how a physical latch works, so you could say that that third step is taught by the prior art. However, physical latches don't detect contact, nor do they present an image or move the image. So, those first two steps aren't taught by physical latches.

Now, if you can find other art that teaches those first two steps, then you can combine that art with physical latches and maybe make an argument that the claim is obvious... but you can't do it just with physical latches alone, since they don't do what the patent claims.

I'm sorry, but this is incorrect. I believe you may be thinking of patent pools, which do act the way you describe - every pool participant throws in some patents and gets a cross license to the other patents in the pool. Non-pool participants have to pay cash for licenses.

FRAND is different - FRAND is where a company encourages everyone to adopt their patented technology as part of a standard, and agrees to offer licenses to anyone who wants one at Fair, Reasonable And Non-Discriminatory (FRAND) rates. There's nothing about cross-licensing as part of that.

Why would a company offer up a patent for FRAND licensing? Because if it's part of the standard, then they collect a nice 1% or so royalty from everyone. If it wasn't FRAND, then they might be able to insist on 5 or 10% royalties for the patent, but then, it's unlikely that it would've become part of the standard because no one wants to pay that high a rate. So it's a "make it up in volume" business trade-off.

Continuing with your post:

As noted above, FRAND patents are not part of cross-licensing agreements, nor can a FRAND owner require a cross-license to a patent or charge higher royalty rates from a licensee, because, by definition, that would not be "Non-Discriminatory". And that's where Samsung really screwed up in this pile of litigation - when Apple sued them for infringement of various other patents, Samsung tried to get an injunction to keep Apple from using the FRAND patented technology. That's a no-no - by offering up the patent for use in the standards, they agreed never to seek injunctions for infringement. That's why the DoJ (as well as their counterparts in Europe) are investigating Samsung over potential anti-trust issues.

Simply compress and encrypt your backup data, then post it on a torrent tracker as "New Julian Assange insurance file, decryption key to be released if extradited". Thousands of other people will make backup copies for you.

And that theoretical speed is with minimal fuel, no weapons, no armor, no maneuverability, no military radios. In short,

Then there's that crap about being a jet fighter.

which is only half the horsepower available in real fighter airplanes 5 years later which could only manage 450 mph.

This is one of the more idiotic articles to come down the pike in quite a while.

Not at all - we're talking about an existing machine used for an entirely new purpose. And as you know, a new, previously unknown use of an existing machine can be patentable, and certainly passes muster under 101.

In our hypothetical, yes. Not in Flook's claim. For reference, Flook's claim 1 was:

No machine elements except for, arguably, the alarm limit. Except that you could easily say that if I tell you to be alarmed if I drink four shots of whiskey in less than an hour, that's an "alarm limit" that I just "adjusted". Again, very different from our hypothetical claim earlier.

You are taking a patent eligible claim and carving out anything that makes it patent eligible.

On the contrary, if the computer is intimately involved in every step, there's nothing "post-" about it.

Ah, you're upset because I'm not claiming a testing system, but a diagnostic system. So? I see no such limitation in 101.

And here we see the problem. You are conflating 101 with 102, and saying that you can strip out all of the claim elements until you're left with just "the novel element" and then only looking at whether that one bit meets the requirements of 101. What about the rest of the claim? You must consider the claim as a whole, not simply rewrite it and carve out bits until you're left with nothing but "an abstract idea".

Consider this - given your suggested system of carving out elements from a claim until nothing is left, literally no process could ever be patentable under 101. This is clearly contrary to Congress' intent, both in the language of 101 (and 100) as well as the separate discussion of business methods in 273. If you disagree, then please suggest a method that would be patentable under your formulation, even if every bit that's related to hardware is carved away.

With the stipulation that we're talking about software per se, yes.

I believe you're misreading Flook, particularly in light of later developments. Look at Flook's claim - it would likely fail 101 under Bilski's test, which I think would apply better.

More importantly, while Flook's "adjusting an alarm limit" is actually post-solution activity, the hypothetical cancer-diagnosis claim we're discussing has the machine tied into every step of the process. Flook's claim was mental step, mental step, mental step, adjust an alarm (which, honestly, is almost a mental step too). Our claim is machine process, machine process, machine process, output. Very different. To read Flook the way you are is to basically say that any use of a machine is "post-solution activity", regardless of what the machine is: say, for example, you have a new process for forging steel. You could read that as "determining how to forge steel" and then "forging it" in order to wave away any specifics. And that's what you do:

That's fine - we don't consider a human "an electronic device", the brain "a processor", and the mind "a display". Now, if you have a specification that redefines those terms as they're understood by one of ordinary skill in the computing arts to include a human, then sure, but we don't. This goes back to what I was saying earlier: you're essentially rewriting the claim to remove any machine elements and then say that the resulting claim, stripped of patent eligibility, is magically ineligible. Well, sure, but that's not the claim at issue. Redefining the machine terms to include a human, when they wouldn't otherwise, is simply the same process.

Claims must be read as a whole, interpreting every element as understood by one of ordinary skill in the art, unless explicitly redefined. Rewriting claims or redefining terms in an effort to prove that something is merely a mental process is to ignore those explicit mandates.