The test for patentable subject matter under Section 101 lies at the heart of patent system. However, very little guidance is provided in the actual statutory language. It comes as no surprise that the “seemingly’ simple provision of patent eligible subject matter has caused a great deal of confusion among inventors, patent attorneys, district court judges, and even the Justices on the U.S. Supreme Court.
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. The Supreme Court’s attempt to limit the scope of patentable subject matter by establishing three specific exceptions, laws of nature, physical phenomena, and abstract ideas, has created significant uncertainty for patent practitioners and examiners.
The USPTO has issued several guidelines in the past for determining patent-eligible subject matter to address such uncertainties. However, the examiners are still left with conflating aspects of 35 U.S.C. §§ 102, 103, and 112 with the § 101 analysis and expanding the “inventive concept” requirement. Recognizing the same, the USPTO Director, Andrei Iancu, recently proposed a change to how USPTO examiners determine whether a claimed invention satisfies the patent eligibility requirements of 35 USC § 101. On September 24, 2018, at the Intellectual Property Owners Association’s annual meeting, Director Iancu acknowledged that there is a growing consensus to promptly address the issue of patent eligibility subject matter. The premise of Director Iancu’s position is that there should be a strong line between “categories of invention on one hand” and “conditions for patentability on the other.” He stressed on the problems arising from the confusion in distinguishing between categories of invention under § 101 and conditions for patentability under §§ 102, 103, and 112:
“How can a claim be novel enough to pass 102 and nonobvious enough to pass 103, yet lack an ‘inventive concept’ and therefore fail 101? Or, how can a claim be concrete enough so that one of skill in the art can make it without undue experimentation, and pass 112, yet abstract enough to fail 101? How can something concrete be abstract?”
Director Iancu emphasized that § 101 is about subject matter, and that “it is meant to address categories of matter that are not ever eligible on their own, no matter how inventive or well-claimed they are.” He said that the Patent Office is considering revised guidance to help the examiners categorize the exceptions and on how to apply them. The following two clarifications to be addressed in the contemplated guidance, according to Director Iancu, “would help drive more predictability back into the analysis while remaining true to the case law that gave rise to these judicial exceptions in the first place”:
- Categorizing the exceptions based on a synthesis of the case law to date, and
- If a claim does recite a categorized exception, examiners would be instructed “to decide if it is “directed to” that exception by determining whether such exception is integrated into a practical application.”
Commenting on the judicial exceptions, Director Iancu noted that they should cover “only those claims that the Supreme Court has said remain outside the categories of patent protection, despite being novel, nonobvious, and well-disclosed.” The Supreme Court provided “basic tools of scientific and technological work” to categorize inventions that cannot be patented even where the applicant demonstrates full compliance with Sections 102, 103 and 112. Director Iancu defined “basic tools of scientific and technological work” as following
- pure discoveries of nature, such as gravity, electromagnetism, DNA, etc.—all natural and before human intervention; (citing Myriad)
- fundamental mathematics like calculus, geometry, or arithmetic per se; (citing Benson)
- basic “methods of organizing human activity,” such as fundamental economic practices like market hedging and escrow transactions;” (citing Bilski and Alice) and
- pure mental processes such as forming a judgment or observation, explaining that “something performed solely in the human mind can be thought of as abstract no matter how it is claimed.”
Director Iancu highlighted the proposed guidelines would be mostly directed to eligibility issues surrounding “abstract ideas,” and in particular guiding the examiners to determine when a claim recites or is “directed to” an abstract idea. He further revealed that the proposed PTO guidance would synthesize “abstract ideas” as falling into the following three categories*:
- Mathematical concepts like mathematical relationships, formulas, and calculations
- Certain methods of organizing human interactions, such as fundamental economic practices commercial and legal interactions; managing relationships or interactions between people; and advertising, marketing, and sales activities
- Mental processes, which are concepts performed in the human mind, such as forming an observation, evaluation, judgment, or opinion.
To “resolve a significant number of cases currently confounding our system,” Director Iancu said that the proposed guidance would highlight a new approach in which
“we would first look to see if the claims are within the four statutory categories: process, machine, manufacture, or composition of matter…If statutory, we would then check to see if the claims recite matter within one of the judicial exceptions…If the claims at issue do not recite subject matter falling into one of these categories, then the 101 analysis is essentially concluded and the claim is eligible.”
If the claims do contain subject matter recited in one of the excluded categories, more analysis will be done as instructed by the Supreme Court to decide whether the claims are “directed to” those categories. For that purpose, Director Iancu stated that “we must first understand what the line is that the court wants us to draw to decide whether the claim is “directed to” an excluded category or not. The proposed new guidance would explain that Supreme Court jurisprudence taken together effectively allows claims that include otherwise excluded matter as long as that matter is integrated into a practical application. The line, in other words, delineates mere principles, on one hand, from practical applications of such principles, on the other.”
Citing to Supreme Court decisions, Director Iancu highlighted that the court has repeatedly told us “an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection,” [in Diamond v. Diehr] and that “applications of such concepts to a new and useful end … remain eligible for patent protection” [in Mayo]. The proposed guidance would emphasize that the claim is not “directed to” the prohibited matter if the claim integrates the exception into a practical application. “In such cases, the claim passes 101 and the eligibility analysis would conclude. Otherwise, [the USPTO] would move to step 2 of Alice.”
Commenting on one of the main distinguishing features of the proposed guidance from the step 2 of Alice, to ensure a “meaningful dividing line between 101 and 102/103 analysis,” Director Iancu highlighted that “the first step of [the proposed] analysis does not include questions about “conventionality”…it does not matter if the “integration” steps are arguably “conventional”; as long as the integration is into a practical application, then the 101 analysis is concluded.”
In sum, Director Iancu stated that the proposed guidance for Section 101 will provide significant clarity by addressing step 1 of Alice and explaining “that eligibility rejections are to be applied only to claims that recite subject matter within the defined categories of judicial exceptions. And even then, a rejection would only be applied if the claim does not integrate the recited exception into a practical application.” The proposed guidance contemplates that conflating aspects of 35 U.S.C. §§ 102, 103, and 112 with the § 101 analysis would be minimized by going through the analysis in the figure below:
In closing remarks, Director Iancu restated the need for simplification and calls for other authorities to “join in helping us get out of the rut, at least by keeping rejections in their lane and by clearly categorizing the subject matter of any exception.” He also noted that if the revised new guidance were to be issued, it may take some time before it is finalized.
Large, Luxury Penthouse in Miami Sells for $22 Million in Crypto
One of America’s most luxurious penthouses just sold for more than $22 million – and the deal was completely finalized through cryptocurrency. The home consists of four bedrooms and is located within a condo building known as Arte by Antonio Citterio, which is situated in Miami Beach, Florida and designed by real estate developers Alex Sapir and Giovanni Fasciano.
Miami Real Estate and Crypto… A Perfect Match?
While crypto-real estate deals have been occurring over the past seven years, they are not common in any way, shape, or form. Typically, in America, all deals close through USD, but both Sapir and Fasciano expressed their excitement over the event and said in a recent interview that they always felt real estate and crypto went hand in hand… It was just a matter of time before people realized that, and as a result, they have consistently been open to homebuyers looking to pay their way with digital currency.
Sapir explains that there were several offers made on the residence, many of which would have also been done with crypto. He explained:
There is a strong, pent-up demand for cryptocurrency transactions that are seamless and secure for both parties, and the deal at Arte is a prime example of that. We were overwhelmed by the amount of calls we received from qualified buyers just after announcing our ability to facilitate cryptocurrency transactions. Real-world crypto transactions have not made their way fully into the mainstream yet, so it is quite clear top holders around the world pay attention when new opportunities to transact open up.
Fasciano says that with this sale, he has no doubt Miami could become a leader in crypto-based real estate sales, and he is hopeful that this will attract more digital investors to the housing mix. He says:
We are making Miami real estate history with this sale, as we were the first new development to facilitate this kind of cryptocurrency transaction, and to do so successfully so quickly after announcing. Cryptocurrency is the future of wealth, and we believe this is only the beginning. Arte has set the precedent for what these sales can look like and how fast they can take place. We are proud to have laid the groundwork for this new, burgeoning world.
Why Crypto Works Well
Sapir further stated what it was that inspired them both to accept crypto in the first place:
When we first set out to develop a boutique, resort-style oceanfront condominium for only 16 owners, no one had ever heard of anything so luxe and at such a small scale in Miami. It did not deter us, and we wanted to get ahead of a future world where half the world’s billionaires could have easily made their wealth from cryptocurrency. The quick sale of the Lower Penthouse at $22.5 million proves the success of the concept.
Ripple execs file new motion – What does it mean for their XRP sales contention?
The ongoing lawsuit filed by the SEC against Ripple Labs and its execs is showing no signs of slowing down or ending anytime soon. Ripple’s latest defense now challenges the SEC’s jurisdictional authority over the exchanges that Brad Garlinghouse and Chris Larsen sold XRP to. As a matter of fact, the SEC, in its amended complaint, sought disgorgement for the two billion units of XRP sold by the execs on digital asset trading platforms located outside the U.S.
The individual defendants in the case have filed a motion seeking the court’s approval to request documents from over a dozen digital currency exchanges located “all over the world.” By doing so, the defendants want to establish that the XRP sales they made were beyond the jurisdiction of the regulatory agency. The individual defendants also argued in their motion that Section 5 of the Securities Act only applies to “domestic” sales and offers of securities.
Justifying the ultimate reason behind their international discovery request, their motion noted,
“The evidence to be obtained from the digital asset trading platforms is probative of the issue whether “irrevocable liability” was incurred outside the US with respect to these transactions.”
The third parties in question here include prominent exchange platforms like Upbit, Korbit, Huobi, Coinone, and Bitstamp. Additionally, the defendants’ letter stated,
“We understand that the Plaintiff, the Securities and Exchange Commission, does not object to this motion.”
With this motion, the defendants have requested the court to issue the attached letters of request for international judicial assistance and compel the aforementioned entities to produce documents. Here, it should be noted that the Court has the authority to request any competent authority of another state to obtain evidence. This motion is quite important for the defendants because it has the potential to provide them with concrete evidence before the close of fact discovery.
The Letters of Request to the entities seeks the assistance of the Central Authorities of Singapore, South Korea, Hong Kong, the U.K, Cayman Islands, the British Virgin Islands, Seychelles, Malta, and Northern Ireland to obtain documents relevant to the case that are otherwise unobtainable through other means from the entities.
“The Individual Defendants seek foreign discovery on the basis of their good faith belief that the listed entities possess unique documents and information concerning this case.”
According to the aforementioned motion, the entities could potentially produce evidence that specifically dealt with the transactions of XRP on their respective foreign digital trading platforms.
“There is good cause for the Court to issue the Letters of Request. The information sought in the document requests is narrowly tailored to obtain relevant information related to the case.”
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Analyzing ideal buy-entries for Ethereum, Cardano, Dogecoin for the next 24 hours
The cryptocurrency market might potentially be amidst another weekend correction. In a previous article, we analyzed whether there is an actual correlation between market dumps and the weekends. Multiple assets are shaky on the charts at the moment, and that includes the likes of Ethereum, Cardano, Dogecoin, among others. Keeping the notion of recovery in mind, we tried to identify a potential buy-range for these altcoins in order to maximize profits out of the dire situation at hand.
(Note: The analysis has been solely done from an analytical and fundamental point of view. It does not accommodate the possibility of any flash crashes)
Ethereum – Re-visiting the $2100s?
Ethereum, at the time of writing, was at a price range last seen towards the end of May 30th. The valuation was near the $2300 range, something that opens up the possibility for a couple of situations,
i) A bounceback from the support range of $2310-$2180
ii) Ideal re-test of Demand Zone at $2100-$1750
One of the reasons why the aforementioned support range could get invalidated is the fact that it has been tested before on 8th June. Now, while the Demand Zone has a wide range, it would be better for the asset to not close under $1880, which is a critical level and weekly support.
Hence, setting up buy entries between $2100-$1900 remains ideal, while cutting losses under $1880 if the market goes further south.
ETH’s trading volume ($27.6 billion) was also a clear indication that the market is adequate for recovery, but its social volumes have significantly dropped. And yet, historically, this level has acted as a point of reversal.
Dogecoin – Another free fall?
Dogecoin lacked a definite support range based on past price action. Coincidentally, its present price range has only been its bounceback level in the past. Now, presenting DOGE’s demand zone is more chaotic than other assets because its charts paint more of a flash-crash situation.
And yet, the ideal demand zone or buy range for the meme coin remains between $0.218-$0.184. A collapse below $0.184 should be directly met with sell-orders to cut losses, as the price could potentially meet its weekly support at $0.087.
One thing that makes it worrisome for Dogecoin to touch its demand zone is the lack of volumes. There might be no pullback considering the strength of trading activity was falling to its minimal range for the year 2021.
However, from a development point of view, its ecosystem has had more activity than ever before, which is a huge positive from a fundamental and long-term point of view. Overall, it is more ideal to set up entries after it bounces back from the Demand Zone than now while it is consolidating in it.
Cardano – Better not touch $1?
For Cardano, there remains a definite Support Range and Demand Zone. Just like Ether, it re-tested the support range of $1.40-$1.33. Unlike ETH, ADA’s support zone is stronger. Yet, strong corrections should mean meeting the demand zone between $1.17 and $1.05. Unlike other assets, it is imperative ADA remains above the Critical Level of $1 because it has maintained a position above this range since the beginning of February.
While Cardano had low trading volumes, it didn’t seem to be beyond salvation. Market momentum may switch up activity levels very quickly. However, it is essential to keep note of its low social dominance as only 2.36% of the ecosystem is talking about Cardano at the moment. Fundamentals are still strong for ADA, however. Ergo, buying within the demand zone should be fruitful.
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