12:01 Tuesday

Wait One Day, Lose Two Days! Not Free!

Today brings the best teaching example I've seen on the importance of promptly responding to Office Actions.

Every patent practitioner knows that there are statutory periods to respond to USPTO Office Actions. Typically, they are six months. Miss those deadlines and you could be up a creek, needing to petition to revive your application, if you can.

However, the PTO generally reduces these to a "shortened statutory period" of three months (two, for certain actions). So if you're late, you simply pay an increasing fee for each month you are delayed, up to the statutory limit. And unless you: a) work only with clients/inventors who respond promptly to your emails (and pay their bills on time); b) don't ever work on litigation matters; c) never take a vacation; and/or d) have been lucky enough to never be jammed with a crisis of someone else's (or even your own) making; then you have almost certainly availed yourself of this "convenient" option provided by the PTO. (In fact, certain litigious patentees in pre-GATT days were known to always use the maximum allowed extensions, to keep an application pending as long as possible.) That first extension month is yours for the low, low price of $150 – and if you are a small entity, it's $75. What a bargain! See 37 CFR 1.17(a).

But there is a bigger price, of course: patent term. Most of us (?) appreciate that these delays can negate extra patent term that would otherwise have been granted under Patent Term Adjustment for PTO delays. Fewer, however, seem to take into consideration the more obvious problem that a delayed response also delays the issuance of the patent. Every day you wait to file that response is, in theory, a day the Examiner is not acting on it, and one more day until that Notice of Allowance arrives.

Combining these costs can yield disastrous results. Enter today's patent, stage right:

U.S. Patent No. 8,110,187 Purification and characterization of cytotoxic lymphocyte maturation factor and monoclonal antibodies thereto Assignee: Hoffman-LaRoche, Inc. Issued: February 7, 2012 Filed: October 8, 2002 Continuation-in-part of ... 07/455,708, filed Dec. 22, 1989. USPTO Delay: 1,057 days Applicant Delay: 392 days Total PTA Adjustments: 665 days.

Commentary: First things first: this patent is DOA. Like the Army patents discussed here a while back, Roche's patent expired a few months ago. Twenty years from the priority date (12/22/1989) plus 665 days PTA = October 18, 2011. Oops. The difference in this case, however, is that the Applicant's delay was solely responsible for the stillbirth. Here's how:

Pretend that Roche had filed all its responses without extension, but that the PTO still had its delays (and that the Examiner's docket was uniformly distributed during that time). Then the patent probably would have issued about 392 days sooner, or January 11, 2011. That is still more than twenty years from the priority date, but there would have been 1,057 days of PTA extension, resulting in an expiration date of November 13, 2012 (normal expiration of 12/22/2009 + 1,057 days). Total patent term would have thus been 672 days (11/13/2012 minus 1/11/2011). Coulda, woulda, shoulda.

So, instead of having two years of an enforceable patent, Hoffman-LaRoche has nothing but the receipts it spent on prosecution. And those receipts probably aren't small – there were three appeal notices, two RCEs and one 453-page submission in an unsuccessful attempt to provoke an interference. Add to this that three different law firms were involved (it was originally filed by the erstwhile Pennie & Edmonds firm, passing briefly through Jones Day, to its current location), along with the clarifications in PTA calculations following the Wyeth v. Kappos case, and perhaps there is some understanding as to how the expiration date issue might have gone undetected.

But all the Applicant delay here occurred by April 2009. At that point, with the terminal date in sight, Roche pressed forward with an Office Action response and full appeal briefing to the BPAI. By the time the reply brief was filed in October 2010, it was a foregone conclusion that the patent could not issue with any term. (Prior to the appeal, Roche could have received a maximum of 226 days extension, to August 5, 2010. Roche gained an additional 439 days for its appeal pendency, and only then because the appeal eventually succeeded in reversing the rejections.)

Bottom line: 392 days of delay results in the loss of 672 days of term for Roche. Valium, anyone?

There are certainly times when extensions are necessary, and even useful. But we need to be mindful of their consequences with respect to term, especially in fields where a single day of a patent's life could have significant value.

Latest Tool to Fight BPAI Backlog: Laziness?

Today's decision in Ex Parte Schmieding (assignee: Naples, Fla.-based Arthrex, Inc.) may set a record for shortest BPAI decision on the merits. Here's the decision in its entirety:

DECISION ON APPEAL This appeal under 35 U.S.C. § 134 involves claims 1 and 6-14. Claims 14 and 16-20 were “withdrawn from consideration but not canceled” (App. Br. 2; Reply Br. 2). We have jurisdiction under 35 U.S.C. § 6(b). The Examiner rejected claims 1 and 6-13 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Cerundolo and Johnson. Upon consideration of the evidence on this record and each of Appellant’s contentions, we find that the preponderance of evidence on this record falls in favor of Appellant for the reasons set forth in Appellant’s Brief and Reply Brief. Accordingly, we reverse the rejection of record. REVERSED

That's it. Even the Federal Circuit, through its powerful "Rule 36", can only use it to affirm decisions, not to reverse them, as the Board has done here.

If anyone is aware of similar (or even shorter) BPAI decisions on the merits, please share.

IBM and the Art of Arbitrary Application of Abstractness

Quiz: Which of the two following IBM claims do you think is more “abstract”? Which one do you think the BPAI sua sponte rejected under Section 101?

A. A computer-implemented method of responding to a problem condition, comprising: automatically detecting availability of a first candidate to respond to a problem condition; responsive to the detecting: automatically assigning responsibility for the problem condition to the first candidate; and receiving a confirmation from the first candidate indicating acceptance of responsibility for the problem condition.

B. A method for integrating file system events into a database management system (DBMS), comprising: designating a file of interest; detecting a file state change event associated with the file of interest; updating a file events table of a database upon a detection of the file state change event; generating a database trigger upon a change in the file events table; and updating the database with data from the file of interest upon receipt of the database trigger.

Commentary: On the surface, claim (A)’s “computer-implemented” preamble pays some lip-service to concreteness, but otherwise includes only apparently abstract concepts of “candidates,” “problems” and “responsibilities.” Meanwhile, claim (B) includes a somewhat 'particular' “DBMS,” a “database” and “file events.” Easy, right?

But as you might expect with non-precedential decisions (as all but a handful of BPAI cases are), outcomes can be very panel-specific and leave you scratching your head. Here, the Board said nothing regarding the patentability of claim (A)'s subject matter, while reversing a 102 rejection. Ex parte Herbeck.

Only two weeks earlier, in Ex parte Vishnubholta, a different three-member panel affirmed a 102 rejection for claim (B), but added a new rejection under 101. In particularly strong language, the Board found

"[T]he claim fails to recite a machine or transformation of an article of manufacture…Rather, [the claim elements and limitations] are merely abstract ideas that comport with the teachings of Bilski."

Adding insult to injury, the Board went even further, finding that

"[T]here is not even a machine or transformation recited in independent claim 1 that would have qualified as 'insignificant extra-solution activity.'"

In the NFL, this behavior might warrant a 15-yard penalty for taunting the sacked quarterback.

Perhaps the Board was trying to demonstrate the breadth of 101 rejections: in addition to the Bilski rejection for abstractness, the panel also rejected a Beauregard claim under Nuijten for including "signal waves", and affirmed the rejection of a system claim as "software per se" under Warmerdam. Three claim types; three demises under 101.

While another precedential BPAI decision on abstractness could be immensely helpful in the wake of Bilski, if that decision is anything like Vishnubholta, it could signal a tough road for many software patents.

Bull in Bilski's China Shop: B of A's Financial Instrument

In the previous blog post, we examined a claim to a "financial instrument" by Excel Ventures that appeared to slip through to issuance.

With incredible timing, the Board of Patent Appeals and Interferences last week looked at a set of claims with an eerily similar feel:

Ex Parte Birle Application 10/064,745 Assignee: Bank of America [Merrill Lynch] 10. A financial instrument issued by a stock company and held by a holder, shares of stock of the company trading at a price, the instrument having a market price, the instrument comprising: a provision obligating the company to repay the principal according to a predetermined term; a provision making the instrument convertible into a predetermined number of shares of stock of the company at a predetermined conversion price; a provision obligating the company to make a payment to the holder with respect to passage of a time interval in the event the market price of the instrument is in a predetermined relationship to an accreted value thereof, the accreted value defined as the issue price of the instrument plus an economic accrual of a portion of a difference between the issue price and the principal amount at maturity.

Deja vu? Can one really make a distinction between this claim and Excel's with respect to the patentability of its subject matter?

Merrill's appeal brief, filed in 2007, argued by analogy to Beauregard claims:

For many years, Examiners routinely rejected claims direct to computer-readable media containing novel and unobvious content, but these refusals stopped after In re Lowry. Since that time, Examiners have been directed not to reject claims to such computer-readable media, as discussed for example at MPEP section [2106.01]: "When functional descriptive material is recorded on some computer-readable medium, it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized." By analogy, when functional descriptive material, such as the material set forth in the present rejected claims, is recorded on a "financial instrument" or an "offering document," it likewise "becomes structurally and functionally interrelated to the medium and will be statutory in most cases." Use of the financial instruments or offering documents "permits the function of the descriptive material to be realized."

The BPAI, armed with the Supreme Court's Bilski opinion, was unpersuaded:

We agree with the Appellants that the recitation of a “financial document” and an “offering document” does not automatically cause the claimed invention to be nonstatutory. However, with the exception of the recitation in the preamble of the claims of a “financial instrument” or “offering document,” all the elements of the claims relate to a mental concept or an abstract idea of how to make money. In this regard, the claims relate to an idea related to a financial arrangement between a stock company and a holder of shares of the stock. The claims recite various ways that a holder of shares of stock can make money by, for instance, receiving principal paid according to a predetermined term, receiving a share of stock of a company and receiving money in accordance with an accredited value. In this way, the claims recite a way of converting money paid to a company for value in terms of shares of stock, or accredited value. It is merely an abstract idea of how to make money. Moreover, the claims cover any known and unknown use of the concept. The steps could be performed by any machine, existing or futuredevised. Furthermore, the processes as claimed could be accomplished by human activity alone, including through mental processes. In the words of Gottschalk v. Benson, 409 U.S. 63, 72 (1972), the claimed processes “would wholly pre-empt the [payment to a holder with respect to passage of a time interval] and in practical effect would be a patent on the [concept] itself.” The recitation in the preamble of a “financial document” or an “offering document” does not convert the otherwise nonstatutory subject matter to statutory subject matter. First, as the recitations are in the preamble of the claims and do not appear in the body of the claim, the recitation of a “financial instrument” or an “offering document” is introductory language that does not breath life and meaning into the claims. Therefore, this introductory language does not limit the scope of the claims. In re Pearson, 494 F.2d 1399, 1403 (CCPA 1974); Gerber Garment Tech., Inc. v. Lectra Sys., Inc., 916 F.2d 683, 688 (Fed. Cir. 1990) quoting Perkin- Elmer Corp. v. Computervision Corp., 732 F.2d 888, 896 (Fed. Cir. 1984), cert. denied, 469 U.S. 857 (1984). Second, the recitation of a “financial instrument” and an “offering document” in the preamble fails to make the claims statutory subject matter because the prohibition against patenting abstract ideas “‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment’ or adding ‘insignificant postsolution activity.’” Bilski v. Kappos, 130 S. Ct. at 3230 (citing Diamond v. Diehr, 450 U.S. 175, 191-92 (1981)). Thus, limiting the implementation of what would otherwise be mental steps or abstract ideas to a “financial instrument” or an “offering document” is insufficient to place the claims into the realm of patentable subject matter under 35 U.S.C. § 101. We, therefore, affirm the Examiner’s rejection.

The story is not over, however; because the Board's rationale differed from the Examiner's, it denoted this as a new ground of rejection, thus reopening prosecution.

It will be interesting to see how B of A amends and argues to navigate through the china shop.

Sign of the Times: Topps' Method of Trading Baseball Cards

The small pharmacy a mile from my childhood house was a frequent summer bicycle destination for me growing up. That's where my friends and I would go to buy packs and packs of Topps' baseball cards. I still remember opening a wrapper in 1978 to find a Pete Rose--while he was in the middle of his 44 game hitting streak. I hear that card in mint condition might fetch 20 dollars. (Mine--now bent and missing corners--maybe gets a buck.)

So it was nice to see a few weeks ago that Topps obtained its first utility patent in almost seven years (only its sixth utility patent in 30 years). Moreover, this is Topps' first patent that has nothing to do with chewing gum or candy -- it's...get this...a business method patent:

U.S. Patent No. 7,797,194 Method and apparatus for offering for sale collectibles on primary and secondary markets Assignee: The Topps Company, Inc. Issued: September 14, 2010 1. A method of facilitating an issuer of collectibles to manage an offering of collectibles for sale, each of the collectibles having a predetermined condition, said method comprising the steps of: a) initially offering for sale the collectibles to potential purchasers for a period of time set by the issuer; b) receiving orders from the ordering potential purchasers; c) allocating the offered collectibles among selected of the ordering potential purchasers; d) facilitating steps a), b) and c) by a programmed computer; and e) maintaining the condition of the collectibles during steps a), b) and c), whereby the allocated collectibles are of the predetermined condition and the issuer may guarantee the condition of the allocated collectibles, wherein step b) offers an initial offering of collectibles, and there is further included the step of offering for sale selected of the allocated collectibles on a secondary market at the direction of the purchasers of the allocated collectibles.

Commentary: Great. I suppose this means that my kids may not be trading actual baseball cards: instead, they'll be trading futures in baseball cards. Then again, if "personal seat licenses" are now the norm for ticket holders, then why not introduce children to similar concepts early on, right? At least it gets them to think of these cards as the investments they really are, rather than just things to put in your bike spokes so they will make cool ratchety noises. (Sorry, Pete.)

Of course, there's one immediate shortcoming, in my opinion. The patent talks about an "IPO" for a card ("Initial Player Offering") and buying multiple cards for players expected to increase in value (e.g., you may want to buy many Derek Jeter cards "if you believe that Derek Jeter will become the best shortstop of all time," says the patent). That's a great tool to teach kids about buying and holding stocks, but what about selling short? There's apparently nothing in Topp's system that allows me to sell you the Stephen Strasburg card I don't have.

No formal drawings. Even the figures look like they were drawn by 11-year olds.

Bilski. Does this even need mentioning? Actually, the Examiner did reject several claims for failing machine-or-transformation, but other claims somehow survived. Given the recent PTO's recent pronouncements on interpreting KSR, however, I'd think that step d) here might not overcome an obviousness rejection.

Seven Appeal Briefs, No BPAI Decision. The claims in Topps' patent application were given their first final rejection in 2001. But as hard as Topps tried to appeal those rejections, it just couldn't make it up to the Board. The first two attempts resulted in the examiner reopening prosecution with new grounds of rejection. Then there were two defective briefs. Then a substitute brief kicked by the Board because it was not considered by the Examiner. Then another defective brief. Then another brief that reopened prosecution with a new rejection -- which was overcome, resulting in allowance. I suspect the Examiner was simply worn out by this point. Or Topps' counsel takes lessons from the Swamp King.

Filed five months too early? Topps' application was filed in January 2000. Unfortunately, Patent Term Adjustment only is allowed for applications filed after May 29, 2000. With over ten years from application to issuance, that would have been over seven years of "B" delay, alone (assuming there was no applicant delay--you can check that for yourself). But here is is the real travesty of all those failed appeal attempts: under the older Patent Term Extension--which applied to this application--had Topps received a favorable appeal decision from the BPAI, then it would have received extra term dating back to the Notice of Appeal. But without any decision on the merits by the Board (even though the Examiner reconsidered his rejections several times), the term is a flat 20 years from filing.

Adding even more insult to injury, Topps had successfully petitioned to make the application special, resulting in an accelerated examination. Despite, these efforts, in hindsight Topps would have been better off dropping this app in favor of a continuation after the first final rejection in October 2001.

Derivatives. Anyone care to create an options exchange for Topps?

UPDATE 10/20/2010: I'm informed that Topps actually has a commercial service based on the teachings of this patent, called etopps.

BPAI to HP: Equal Protection Clause doesn't save claims from 101

For a move even Stephen Colbert would admire for its ballsiness, we extend kudos to Hewlett-Packard, who argued the following in its appeal brief of App. No. 09/976,630:

 

No mention of In re Nuijten, which was decided several months earlier. Or maybe HP thinks that it is unconstitutional to apply KSR, too, since there are oodles of obvious claims out there in issued patents...

Today, the Board of Patent Appeals and Interferences responded appropriately in its Ex Parte Haines decision:

Section 101 rejection of claims 21-27   Appellant alleges that the USPTO has issued patents to others that contain “propagated signal claims.” Appellant contends that the § 101 rejection of the instant claims is a violation of Appellant’s rights under the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. App. Br. 14.   However, Appellant has not cited any authority in support of the novel legal argument. The U.S. Patent and Trademark Office is not part of a state (or local) government, but an agency of the U.S. Department of Commerce. Cf. U.S. Const. amend. XIV, § 1 (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”). We are not persuaded that the USPTO has violated Appellant’s rights to equal protection of the laws under the Constitution.[FN1] [FN1]: Absent showing that the agency acted pursuant to some impermissible or arbitrary standard, an argument based on the equal protection component of the Due Process Clause of the Fifth Amendment would also fail. See In re Boulevard Entertainment, Inc., 334 F.3d 1336, 1343 (Fed. Cir. 2003) (TTAB decision that affirmed the refusal to register marks containing the term “jack-off” did not violate equal protection principles, even though the USPTO had previously registered similar marks for other applicants).

BPAI Announces April Conference

Though the USPTO is closed for Snowmageddon and no new BPAI decisions are being posted today, apparently the website controllers were able to flip the switch recently to announce the First Annual Board Conference. The conference has been billed as "A comprehensive conference, providing insight and analysis, from filing an appeal brief, through the U.S. Court of Appeals for the Federal Circuit’s view on the role of the Board in the development and advancement of the patent system."

In addition to various sessions with judges of the Board, the conference will feature a panel discussion with Chief Judge Michel and Judge Rader of the Federal Circuit, and a luncheon speech from Director Kappos.

This sounds like it could be an excellent event.

BPAI Finds Particular Machine

Providing yet another data point for Bilski evaluations, the BPAI today decided Ex Parte Moyer, finding the following claim a) to be tied to a machine; and b) that the machine was "particular."

1. In a data processing system, a method of forming an immediate value comprising: receiving a data processing instruction at an input of a processor; the processor using a first field of the same data processing instruction as a portion of the immediate value; the processor using a second field of the same data processing instruction to determine a positional location of the portion of the immediate value within the immediate value; and the processor using a bit value in a third field of the same data processing instruction to determine a remainder of the immediate value.

We find that claim 1 recites a processor in each of the steps of the claimed process which imposed a meaningful limitation to the scope of claim 1 to process the received data processing instruction. Thus, we conclude that claim 1 is “tied to” a machine, i.e., a processor. We next decide whether the processor processes the data processing instruction claimed in claim 1 is a “particular machine” within the meaning of the M/T test. Our reviewing court provided guidelines that can be appropriately applied to this case that “[w]e have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.” In re Alappat, 33 F.3d 1526, 1549 (Fed. Cir. 1994) (citation omitted), abrogated by Bilski, 545 F.3d 943 (regarding the “useful, concrete, and tangible result” test originally set forth in Alappat at 1544). Here, the processor recited in claim 1 is programmed to process data processing instructions in a particular way, i.e., forming an immediate value/operand of 32 bits with only one instruction (FF 1). Therefore, we conclude that the processor claimed in claim 1 is a “particular machine” within the meaning of the M/T test. Accordingly, we conclude that claim 1 satisfies the machine prong of the M/T test. ... In contrast to Benson, the present claimed process of the instant invention for processing a data processing instruction by a processor is not an abstract idea because the claimed process has real world use (to form a 32 bit immediate value/operand with only one instruction) and is practical in the computer field. In addition, the claimed process is neither a mathematical formula nor a mathematical algorithm. The claimed process, if allowed, would not patent an abstract idea or pre-empt any other uses of the mathematical formula, but rather give a limited monopoly of the claimed process to the Appellant. Indeed, claim 1 as written is not “so abstract and sweeping” that it would “wholly pre-empt” the use of any apparatus employing the claimed process recited therein.

The Board also reversed the claim's obviousness rejection.

BPAI Invokes Gutta to Reverse 101 Rejection

In Ex Parte Morrison the Board of Patent Appeals and Inteferences reversed the 101 rejection of the following claim today, citing the newly precedential Ex Parte Gutta case:

1. A system that facilitates managing product life cycle, comprising: a data-receiving component that receives data on availability of components to a product and suitable substitution components and determines relevance of the components to the product; an analyzing component that evaluates the received data, and determines, infers or predicts obsolescence and/or risk to end-of-life (EOL) of a subset of the components to a product by scoring each component on a numerical EOL scale; and a notification component that provides notification to at least one of individuals, computers and systems regarding obsolescence and/or risk to end-of-life of the subset of the components to a product, and provides recommendations in accordance therewith.

Appellants argue that the claim necessarily requires computer implementation, because without the computer the functions recited in the claims, most notably notification to individuals, computers and systems cannot be performed.

...

As the Examiner contends, it is the policy of this Office to not reject under statutory grounds novel and unobvious computer based algorithms when claimed as residing on a computer readable medium. Ex Parte Li, Appeal No. 2008-001213, (BPAI Nov. 6, 2008). The claims in the instant appeal, however, are composed of modules reciting functional algorithms or steps that are disclosed as embodied as software, but omitting the computer readable medium. (Spec. ¶ [0061]).

The recent CAFC decision In re Bilski, discussed above, addressed the statutory limitations of method claims. While method steps are incorporated in the appealed claims, for which neither a particular machine nor a transformation of an article is present, the claims are at least nominally styled as system claims.

For guidance on system claims, we look instead to the precedential Ex Parte Gutta, 2009 WL 2563524 (BPAI 2009). For a machine or manufacture that embodies an algorithm expressed as a series of steps, we are guided, based on Flook, Benson and Diehr, to see if the claim 1) recites a mathematical algorithm applied to a tangible practical application that resulted in a real-world use, and 2) did not encompass substantially all practical applications of the mathematical algorithm. (Ex Parte Gutta 2009 WL 2563524, at *7).

We look to representative claim 1 and notice, as the Appellants point out, that one of the components will notify an individual, computer or other system regarding the obsolescence or risk to EOL of the components of a product. (App. Br. 5-6). We find this notification of the end of life risks of the product to be a real-world use of the system, including the algorithm as claimed. While we do not necessarily endorse the useful, concrete and tangible tests, as addressed by the Appellants, we do find sufficient support for satisfaction of the Ex Parte Gutta test. We thus agree that the Appellants have demonstrated error in the Examiner’s rejection under 35 U.S.C. § 101. (emphasis added)

The Board affirmed the rejection of the claim under 102, however.

Instructive 101 case from the BPAI?

Although I try to keep this blog focused mostly on issued patents, today's BPAI decision in Ex Parte Hughes is worth sharing.  In light of last week's precedential Ex Parte Gutta decision, do you think the Board erred when it reversed the examiner's 101 rejection of this claim?

1. An apparatus executing computer instructions for chronicling a portion of an electronic market comprises: a computer system including a processor; a main memory coupled to the processor; and persistent storage, associated with the computer system, the computer system executing: instructions for recording a first activity relating to a security interest in an order book in the main memory of the computer system; and instructions for recording the first activity in the persistent store.

Gutta says that its two-part test applies "if an applicant chooses to claim the manufacture in terms of applying a mathematical algorithm." This claim, when compared to the one held unpatentable in Gutta, may illustrate more precisely what the Board had in mind. Here, the panel found the claim sufficiently tied to a particular machine:

However, each of the independent claims on appeal recites devices, e.g., a computer system, a processor, a main memory coupled to the processor, and a persistent storage, which tie the claims to a particular machine or apparatus, and thus qualify the claims as patent eligible subject matter

Why the different treatment? Perhaps it is merely that Hughes's claim 1 can be seen as (albeit minimally) "tying these steps to...concrete parts, devices, or combinations of devices" since its method actually makes use of those parts (i.e., recording "in the main memory" and "in the persistent store"). In contrast, in Gutta's claim 14, the memory and processor are tossed in simply to encase the method within a "system", and are not at all "tied" to the steps of the method. Also, in Gutta the Board noted particularly that the method is described in the Specification "as a mathematical formula."

One takeaway is that Gutta's holding may not be as broad as originally thought, and that there may be some easy ways to circumvent it (at least until the forthcoming Bilski decision). Of course, with these claims, there's not much "there" there -- the 103 rejections were affirmed, rendering the 101 reversal as little more than dicta. But useful, still.

Query: Has anyone else had difficulty searching the BPAI decision database? For the last week or two, it seems the text searching capability has been ineffective.