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Reproduced with permission from BNA’s Patent,Trademark 11/20/09, 11/20/2009. Copyright ஽ 2009 by The Bu-reau of National Affairs, Inc. (800-372-1033) http://www.bna.com As the patent community anticipates a decision by the U.S. Supreme Court on subject matter patentability, recent rulings by the Federal Circuit and the Board of Patent Appeals and Interferences suggest strategies for preparing method patent applications that will sur- vive the Federal Circuit’s ‘‘machine-or-transformation’’ test.
The Changing Landscape of Method Claims in the Wake of In re Bilski:What We Can Learn from Recent Decisions of Federal Courts and the Board ofPatent Appeals rulings on software-based and other business methodpatent applications.
On review before the high court is the en banc ruling ‘‘Pure’’ business methods are out. Algorithms by the U.S. Court of Appeals for the Federal Circuit1 are out. Machines and data transformations that, in order to be eligible for patent protection, an in- ventive method must either be tied to a machine or re- While the patent community waits for the Supreme cite a transformation of an article.2 This ‘‘machine-or- Court’s decision in Bilski v. Kappos, No. 08-964 (U.S.
transformation’’ test replaced the Freeman-Walter- argued Nov. 9, 2009) (79 PTCJ 33, 11/13/09), patent ap- Abele3 test and the ‘‘useful, concrete and tangible plicants seeking to write patentable claims are stuckwith trying to conform to the lower courts’ most recent 1 In re Bilski, 545 F.3d 943, 88 USPQ2d 1385 (Fed. Cir.
2008) (en banc) (77 PTCJ 4, 11/7/08).
2 ‘‘The machine-or-transformation test is a two-branched Adriana Suringa Luedke and Bridget M. Hay- inquiry; an applicant may show that a process claim satisfies den are lawyers at Dorsey & Whitney, Min- § 101 either by showing that his claim is tied to a particular neapolis. Luedke can be reached at machine, or by showing that his claim transforms an article.’’ leudke.adriana@dorsey.com. Hayden can be reached at hayden.bridget@dorsey.com. 3 In re Freeman, 573 F.2d 1237, 197 USPQ 464 (C.C.P.A.
1978); In re Walter, 618 F.2d 758, 205 USPQ 397 (C.C.P.A.
COPYRIGHT ஽ 2009 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
result’’ inquiry advocated in State Street,4 each of gregating, and selling real estate property and claims which had been applied by the Federal Circuit and its reciting a method of performing tax-deferred real estate predecessor court in various cases, and both of which property exchanges were not statutory under Section 101. Since no machine was recited, the only issue be- In this article, we examine the 2008 decision of the fore the court was whether the claims met the ‘‘trans- Federal Circuit, federal district court decisions, and de- formation’’ prong of the Bilski test.13 The court held cisions of Patent and Trademark Office’s Board of that the claims ‘‘involve[d] only the transformation or Patent Appeals and Interferences. Based upon the out- manipulation of legal obligations and relationships’’ comes in these cases, we offer guidance as to what is that did not qualify under Bilski.14 patent-eligible under 35 U.S.C. § 101, strategies for pre- Concerning the recitation of the ‘‘creation of deed- senting methods in patent applications and claiming shares’’ in some of the claims, the court found that the these methods, and possible ‘‘fixes’’ for applications deedshares themselves were not physical objects, but drafted pre-Bilski that must now withstand scrutiny un- only represented intangible legal ownership interests in der the new machine-or-transformation test.
property.15 Therefore, the creation of deedshares wasnot sufficient to establish patent eligibility under Bil- A number of recent federal court and board decisions have applied the patent eligibility test set forth in Bilski, implemented step to an otherwise obvious method was not sufficient to avoid invalidity of the claim. In KingPharmeuticals Inc. v. Eon Labs Inc.,17 the district court held invalid claims to a method of increasing the oral Several cases have addressed (and rejected) claims bioavailability of metaxalone because the claims were obvious over the prior art asserted by the accused in- In In re Ferguson,6 the Federal Circuit reviewed the board’s rejection of claims directed to a method of mar- Two dependent claims added a step of informing the keting a product and a ‘‘paradigm’’ for marketing soft- patient of certain results, which the patentee argued ware as nonstatutory subject matter under Section was not obvious. The court rejected this argument, con- 101.7 The appellate court affirmed the board’s rejection, cluding that ‘‘[b]ecause the food effect is an inherent concluding that the method claims were neither tied to property of the prior art and, therefore, unpatentable, a particular machine or apparatus nor did they trans- then informing a patient of that inherent property is form a particular article into a different state or thing.8 The court defined a machine broadly as ‘‘a concrete The court also commented that the added step of in- thing, consisting of parts, or of certain devices or com- forming the patient did not meet the patent eligibility binations of devices,’’ which did not include the ‘‘shared standard set forth in Bilski because the step did not re- marketing force’’ to which the method claims were quire use of a machine or transform the metaxalone into a different state or thing.19 Notably, this conclusion The claims directed to a ‘‘paradigm’’ were non- runs counter to the Supreme Court’s instruction that statutory because the claims did not fall within any of claims are to be examined ‘‘as a whole’’ and not dis- the four statutory categories (machines, manufactures, sected into old and new elements and that are evaluated compositions of matter and processes). Concerning the two closest possible categories, the court concluded Recent board decisions have been consistent with the that the claimed paradigm was not a process, because holdings of the federal courts. For example, in Ex parte no act or series of acts was required, and was not a Roberts,21 the board found ineligible under Section 101 manufacture, because it was not a tangible article re- a ‘‘method of creating a real estate investment instru- sulting from a process of manufacture.10 Concerning ment adapted for performing tax-deferred exchanges’’ the recitation of a ‘‘marketing company’’ in the para- because the claim did not satisfy either the machine or digm claims, the court concluded that the patent appli- cants did ‘‘no more than provide an abstract idea—a Similarly, in Ex parte Haworth,23 a method for ‘‘at- business model for an intangible marketing com- tempting to collect payments from customers having delinquent accounts concurrently with a partner that In Fort Properties Inc. v. American Master Lease owns the delinquent accounts’’ was found to be patent LLC,12 the California district court held that claims re- ineligible because the claim wording was ‘‘broad in that citing a series of transactions involving acquiring, ag- 1980); In re Abele, 684 F.2d 902, 214 USPQ 682 (C.C.P.A.
4 State Street Bank & Trust Co. v. Signature Financial 16 See Ex parte Roberts., 2009-004444 at 4-5 (B.P.A.I. June Group, 149 F.3d 1368, 1370, 47 USPQ2d 1596 (Fed. Cir. 1998) 19, 2009) (holding a ‘‘method of creating a real estate invest- ment instrument adapted for performing tax-deferred ex- changes’’ patent ineligible as not passing the machine-or- 7 The court accepted the board’s definition of ‘‘paradigm’’ 17 593 F. Supp.2d 501 (E.D.N.Y. 2009).
to mean ‘‘a pattern, example or model.’’ Id. at 1362.
20 See Diamond v. Diehr, 450 U.S. 175, 188 (1981).
21 No. 2009-004444 (B.P.A.I. June 19, 2009).
12 2009 WL 249205, *5 (C.D. Cal. Jan. 22, 2009).
23 No. 2009-000350 (B.P.A.I. July 30, 2009).
it refers generally to extending an offer, receiving an machine. Accordingly, the process claims . . . are not acceptance, and paying a commission’’ and did not in- voke, recite or limit the method of implementation us-ing any particular machine or apparatus.24 The court also evaluated similar claims that recited the use of a ‘‘comparator’’ to perform the recited pixel- B. Software Claims Not Expressly Tied to a ‘Particular by-pixel comparison and held that this recitation also did not mandate a machine.29 While the court acknowl-edged that software was offered as one ‘‘option,’’ the Other cases have addressed software methods where court concluded that the claimed function of the com- the claim language was either not expressly tied to com- parator could also be performed in one’s mind or on pa- puter hardware components or the ties to computer per such that a machine was not required. The court components were somewhat ambiguous. In several further noted that, even though the ‘‘comparator’’ was cases, courts have rejected the recitation of generic defined as a ‘‘device,’’ ‘‘the use of the term ‘device’ is computer components as sufficient to satisfy the ‘‘ma- not synonymous with machine.’’30 As a result, none of chine’’ prong of the Bilski test. A number of these deci- the claims at issue met the ‘‘machine’’ prong of the Bil- sions also addressed the ‘‘transformation’’ prong of the Concerning the ‘‘transformation’’ prong, the court re- In Research Corporation Technology Inc. v. Mi- lied in particular upon the Abele decision in expanding crosoft Corp.,25 the district court considered the patent the requirements of this test by requiring that the eligibility of method claims in six patents directed to claimed transformation process be both ‘‘(1) limited to methods of halftoning of gray scale images by using a transformation of specific data, and 2) limited to a vi- pixel-by-pixel comparison of the image against a blue sual depiction representing specific objects or sub- noise mask. Relying on the Federal Circuit’s Bilski stances.’’31 It then concluded that a number of the analysis as well as a decision of its predecessor court, patent claims did not meet the second prong of this ex- In re Abele,26 the judge concluded that a number of the panded test because the claims did not ‘‘require any vi- sual depiction or subsequent display’’ even though the transformation test set forth in Bilski.27 claimed method did transform specific image data.32 Concerning the ‘‘machine’’ prong, the district court The district court also found other claims patent- found that the pixel-by-pixel comparison recited in the eligible under Section 101 because these claims recited claims did not require the use of a machine, but could the use of the comparison data ‘‘to produce a halftoned ‘‘dictate[d] a transformation of specific data, and [were] be done on a sheet of paper using a pen. The com- further limited to a visual depiction which represents parison uses formulas and numbers to generate a bi- specific objects.’’33 Thus, the patent eligibility of the nary value to determine the placement of a dot at a claims turned on whether the claims recited the use of location. Formulas and numbers not tied to a particu- the transformed data to generate a display.
lar machine cannot be patented, under the machine In DealerTrack Inc. v. Huber,34 the district court prong, even with a field-of-use limitation because granted a summary judgment of invalidity under § 101 they represent fundamental principles, and to do so of patent claims directed to ‘‘a computer aided method’’ would preempt the entire field. The patent claims . . .
of managing a credit application reciting the following do not mandate the use of a machine to achieve their algorithmic and algebraic ends. Simply because adigital apparatus such as a computer, calculator, or [A] receiving credit application data from a remote the like could assist with this comparison does not render it patent eligible material. RCT’s argument [B] selectively forwarding the credit application data that a pixel by its nature is electronic and therefore to remote funding source terminal devices; necessitates a machine is a post solution argumentand the Court rejects it. The claim construction specifies that the comparison is of a value to a mask 29 The term ‘‘comparator’’ was construed by the court to be (or set of values) to determine whether the dot is a ‘‘device (or collection of operations, as in software) that com- turned on at a specific location. This process does pares an input number (called the operand) to a number pre- not require a particular machine. The Bilski test is stored in the comparator (called the threshold) and produces clear: the process claims must be tied to a particular as output a binary value (such as ‘‘0,’’ zero) if the input is alge-braically less than the threshold [the result of comparing anoperand against a fixed threshold and setting an operand less 24 Id. at 9-10. See also, e.g., Ex parte Farnes, 2009-002770 than the threshold to one value and an operand greater than (B.P.A.I. June 2, 2009) (rejecting a method claim for develop- or equal to the threshold to another value], and produces the ing a solution to a customer experience issue including steps opposite binary value (such as ‘‘1,’’ one) if the input is algebra- of: ‘‘identifying a target customer,’’ ‘‘defining a current cus- ically greater than or equal to the threshold.’’ Id. at *17 (em- tomer experience,’’ ‘‘summarizing values and benefits’’ to pro- vide to the customer, and ‘‘identifying metrics for measuring success’’); Ex parte Salinkas, 2009-002768 (B.P.A.I. May 18, 31 Id. at *9. Notably, Bilski concluded that the Abele visual 2009) (finding patent ineligible a method of launching a depiction was ‘‘sufficient’’ to establish transformation (545 knowledge network involving ‘‘selecting an executive spon- F.3d at 963), while the Research Corporation court went fur- sor,’’ ‘‘forming a core team of experts,’’ and ‘‘providing pre- ther by making visual depiction ‘‘required’’ to establish trans- 25 2009 WL 2413623 (D. Ariz. July 28, 2009) (78 PTCJ 432, 26 684 F.2d 902, 214 USPQ 682 (C.C.P.A. 1982).
34 2009 WL 2020761 (C.D. Cal. July 7, 2009) (78 PTCJ 341, PATENT, TRADEMARK & COPYRIGHT JOURNAL [C] forwarding funding decision data from at least tation of ‘over the Internet’ suffices to tie a process one of the remote funding source terminal de- claim to a particular machine’’ and concluded that it vices to the remote application entry and display The internet continues to exist despite the addition [D] wherein the selectively forwarding the credit ap- or subtraction of any particular piece of hardware. It may be supposed that the internet itself, rather than [E] sending at least a portion of a credit application any underlying computer or set of computers, is the to more than one of said remote funding sources ‘‘machine’’ to which plaintiff refers. Yet the internet is an abstraction. If every computer user in the world [F] sending at least a portion of a credit application unplugged from the internet, the internet would to more than one of said remote funding sources cease to exist, although every molecule of every ma- sequentially until a finding [sic ] source returns a chine remained in place. One can touch a computer or a network cable, but one cannot touch ‘‘the inter- [G] sending . . . a credit application . . . after a prede- Additionally, the court found that the recitation of the [H] sending the credit application from a first remote internet in this case merely constituted ‘‘insignificant funding source to a second remote funding extra-solution activity’’ and therefore did not qualify as a ‘‘particular machine’’ under Bilski.41 ‘‘[T]ossing in In concluding that the claim did not satisfy the Bilski references to internet commerce’’ was not sufficient to machine-or-transformation test, the court held that the render ‘‘a mental process for collecting data and weigh- claimed central processor, remote application and dis- ing values’’ patent-eligible.42 Additionally, ‘‘limiting’’ play device, and remote funding source terminal device the claim to use over the Internet was not a meaningful could be ‘‘any device’’ and did not constitute a ‘‘’par- limitation, such that the claims ‘‘broadly preempt the ticular machine’ within the meaning of Bilski.’’35 The fundamental mental process of fraud detection using court relied upon several board decisions to support its associations between credit cards.’’43 premise that ‘‘claims reciting the use of general purpose processors or computers do not satisfy the test.’’36 claim,44 notwithstanding the Federal Circuit’s holding In Cybersource Corp. v. Retail Decisions Inc.,37 the in In re Beauregard,45 the district court concluded that district court held claims for ‘‘a method for verifying the ‘‘there is at present no legal doctrine creating a special validity of a credit card transaction over the Internet’’ ‘‘Beauregard claim’’ that would exempt the claim from and ‘‘a computer readable medium containing program the analysis of Bilski.’’ Moreover, ‘‘[s]imply appending instructions for detecting fraud in a credit card transac- ‘A computer readable media including program instruc- tion . . . over the Internet’’ invalid under § 101 based tions’ to an otherwise non-statutory process claim is in- upon the court’s interpretation of Bilski.
sufficient to make it statutory.’’46 Consequently, this Concerning the method claim, the court considered claim also failed the Bilski test.
both the ‘‘transformation’’ and ‘‘machine’’ prongs of the In at least one instance, the U.S. International Trade Bilski test. In concluding that there was no transforma- Commission has interpreted the ‘‘machine’’ prong of tion, the court focused on the intangibility of the ma- Bilski less stringently than did the district courts in the nipulated data. According to the court, transformation cases discussed above. In In the Matter of Certain Video is limited to transformation of a physical article or sub- Game Machines and Related Three-Dimensional Point- stance. Accordingly, the method claim did not qualify ing Devices,47 the accused infringer filed a motion for because the data representing credit cards did not rep- summary judgment alleging that the asserted claims resent tangible articles but instead an intangible series impermissibly sought to patent a mathematical algo- of rights and obligations existing between the account rithm. According to the movant, the recitations of a ‘‘3D pointing device,’’ ‘‘handheld device,’’ or ‘‘free space Concerning whether the claimed method was tied to pointing device’’ were not sufficient to tie the claims to a particular machine, the court assessed whether ‘‘reci- a particular machine, but served ‘‘only to limit the field-of-use of the claimed mathematical algorithm and [did] not otherwise impart patentability on the claimed math- Id. at *3. The court relied upon the holdings in Ex parte Gutta, No. 2008-3000 at 5-6 (B.P.A.I. Jan. 15, 2009) (stating In denying the motion for summary judgment, the ‘‘[t]he recitation in the preamble of ‘[a] computerized method ITC first noted that, ‘‘[w]hile the ultimate determination performed by a data processor’ adds nothing more than a gen- of whether the asserted claims are patentable under eral purpose computer that is associated with the steps of the § 101 is a question of law, the Federal Circuit has ac- process in an unspecified manner.’’); Ex parte Nawathe, No.
2007-3360, 2009 WL 327520, *4 (B.P.A.I. Feb. 9, 2009) (finding‘‘the computerized recitation purports to a general purpose processor [], as opposed to a particular computer specifically programmed for executing the steps of the claimed method.’’); and Ex parte Cornea-Hasegan, No. 2008-4742 at 9-10 (B.P.A.I.
Jan. 13, 2009) (indicating the appellant does not dispute ‘‘the recitation of a processor does not limit the process steps to any 44 Claims having this format are called ‘‘Beauregard’’ specific machine or apparatus.’’). The court also cited Cyber- claims and were found to not be barred by the traditional source Corp. v. Retail Decisions Inc., (discussed below), in sup- printed matter rule in In re Beauregard, 53 F.3d 1583, 1584, 35 port of its interpretation of the required ‘‘particular machine.’’ 37 620 F. Supp. 2d 1068, 92 USPQ2d 1011 (N.D. Cal. 2009) 47 2009 WL 1070801 (U.S.I.T.C. 2009).
knowledged that ‘there may be cases in which the legal given a dataset of feature vectors associated with the question as to patentable subject matter may turn on subsidiary factual issues’ ’’ (citation omitted). In con- for each binary partition under consideration, rank- struing the claims, the tribunal found that there was a ing features using two-category feature ranking; and genuine dispute as to whether the claimed ‘‘devices’’represented a ‘‘particular machine’’ under the Bilski while the predetermined number of features has not test and whether the claimed ‘‘two-dimensional rota- yet been selected: picking a binary partition p; tional transform’’ was merely a mathematical calcula- selecting a feature based on the ranking for binary tion or instead meant ‘‘changing the mathematical rep- resentation of a two-dimensional quantity from oneframe of reference to a differently-oriented frame of ref- adding the selected feature to an output list if not al- erence’’ as asserted by the patentee. Additionally, the ready present in the output list and removing the se- dispute over the meaning of the claimed ‘‘two- lected feature from further consideration for the bi- dimensional rotational transform’’ also raised a dis- puted issue as to whether this element recited a trans- Notably, while the independent claim failed the formation that would qualify under the ‘‘transforma- machine-or-transformation test, its dependent claim tion’’ prong of Bilski. Given these disputed issues, the was eligible because it recited, ‘‘further comprising us- ITC concluded that it was inappropriate to grant sum- ing the selected features in training a classifier for clas- mary judgment as to the patent eligibility of the claims.
sifying data into categories.’’ In view of the specifica- A similar conclusion was reached in Versata Soft- tion, the board indicated that the ‘‘classifier’’ was a par- ware Inc. v. Sun Microsystems Inc.,48 in which the dis- ticular machine ‘‘in that it performs a particular data trict court denied the defendant’s motion for summary classification function that is beyond mere general pur- judgment of invalidity under Section 101 based upon pose computing.’’53 The board also concluded that the the Bilski court’s refusal ‘‘to adopt a broad exclusion claim ‘‘transforms a particular article into a different over software or any other such category of subject state or thing, namely by transforming an untrained matter beyond the exclusion of claims drawn to funda- classifier into a trained classifier.’’54 In Ex parte Casati,55 the board reversed the examin- Less stringent ‘‘machine’’ prong analyses are also er’s Section 101 rejection of a method claim reciting: found at the board level. For example, in Ex parteSchrader,50 the board held patent-eligible under Bilski A method of analyzing data and making predictions, reading process execution data from logs for a busi- A method for obtaining feedback from consumers re- ceiving an advertisement from an ad provided by anad provider through an interactive channel, the collecting the process execution data and storing the process execution data in a memory defining a ware-house; creating a feedback panel including at least one feed-back response concerning said advertisement; and analyzing the process execution data; generatingprediction models in response to the analyzing; and providing said feedback panel to said consumers, using the prediction models to predict an occurrence said feedback panel being activated by a consumer to of an exception in the business process.
provide said feedback response concerning said ad-vertisement to said ad provider through said interac- In this case, giving consideration to the specification, which ‘‘unequivocally describes the data warehouse aspart of the overall system apparatus, and subsequent Here, the board found ‘‘interactive channel’’ to be descriptions describe the memory/warehouse device in part of an ‘‘overall patent eligible system of appara- terms of machine executable functions,’’ the board con- tuses’’ when viewed in the context of the specification, cluded that ‘‘one of ordinary skill in the art would un- which included ‘‘the Internet and World Wide Web, In- derstand that the claimed storing of process execution teractive Television, and self service devices, such as In- data in a memory defining a warehouse constitutes formation Kiosks and Automated Teller Machines.’’51 patent-eligible subject matter under § 101 because the In another recent decision, Ex parte Forman,52 the memory/warehouse element ties the claims to a particu- board found a ‘‘computer-implemented feature selec- tion method’’ including a ‘‘classifier’’ eligible under Other recent board decisions have reached the oppo- Section 101 because it satisfied both the machine and transformation prong. Here, the ‘‘classifier’’ was recitedin a dependent claim, in which its independent claim re-cited: 53 Id. at 13.
54 Id. See also Ex parte Busche, No. 2008-004750 (B.P.A.I.
A computer-implemented feature selection method May 28, 2009) (holding a process claim and a computer pro- for selecting a predetermined number of features for gram product claim, each reciting training a machine, ‘‘are di- a set of binary partitions over a set of categories rected to machines that have such structure as may be adaptedby training.’’) 55 No. 2009-005786 (B.P.A.I. July 31, 2009).
48 2009 WL 1084412, *1 (E.D. Tex. March 31, 2009).
56 Id. at 7. See also Ex parte Dickerson, No. 2009-001172 at 49 Citing Bilski, 545 F.3d at 959 n. 23.
16 (B.P.A.I. July 9, 2009) (holding claims that ‘‘recite a comput- 50 No. 2009-009098 (B.P.A.I. Aug. 31, 2009).
erized method which includes a step of outputting information from a computer . . . are tied to a particular machine or appa- 52 No. 2008-005348 (B.P.A.I. Aug. 17, 2009).
PATENT, TRADEMARK & COPYRIGHT JOURNAL implemented methods ineligible under the Bilski test transformation test applied to this type of claim.63 because the claims failed to tie the method steps to any Then, applying the Bilski test, the board concluded that concrete parts, devices, or combinations of devices. For the claim did not qualify. According to the board, the example, in Ex parte Holtz,57 the board found ineligible under Section 101 a ‘‘method for comparing file tree de-scriptions’’ because the claim ‘‘obtains data (a file struc- does not transform physical subject matter and is not ture), compares data (file structures), generates a tied to a particular machine. . . . Limiting the claims change log, and optimizes the change log without tying to computer readable media does not add any practi- these steps to any concrete parts, devices, or combina- cal limitation to the scope of the claim. Such a field- tions of devices’’ and the ‘‘file structures’’ did not repre- of-use limitation is insufficient to render an other- Similarly, in Ex parte Gutta,58 the board held ineli- gible under § 101 a ‘‘method for identifying one or moremean items for a plurality of items . . . having a sym- II. The Current Scope of Patent Eligibility bolic value of a symbolic attribute,’’ concluding that the These recent cases establish that some types of meth- claim ‘‘computes a variance and selects a mean item ods are clearly patent-eligible under Section 101, others without tying these steps to any concrete parts, devices, clearly are not eligible, and yet others may be depend- or combinations of devices’’ and ‘‘symbolic values are ing on how they are described and claimed.
neither physical objects nor do they represent physicalobjects.’’ First, the eligibility of system and apparatus claims is largely unaffected by the Bilski decision, with the ca- In contrast to the district court’s decision in Cyber- veat that such claims may be more closely scrutinized source Corp., discussed supra, in a recent board deci- for compliance with Diamond v. Diehr and Gottschalk sion, Ex parte Bodin,59 ‘‘a computer program product’’ v. Benson, which prohibit patenting of a claim directed was found to be patent-eligible subject matter as being to ‘‘laws of nature, natural phenomena, [or] abstract embodied in a ‘‘computer readable medium.’’ Here, the board considered whether the phrase ‘‘recorded on the Also, methods that are performed at least in part by a recording medium’’ as it is recited in the body of the machine qualify for patent eligibility under Section 101.
claims was the same as ‘‘recorded on a computer- Thus, for example, some computer-implemented and readable medium.’’ Acknowledging the differences be- software-related inventions remain patentable as long tween a statutory claim to a data structure stored on a as they are properly described and claimed as being computer readable medium compared to a nonstatutory performed by a computer or computer components.
claim to a data structure that referred to ideas reflected The tie to a machine, however, cannot merely be im- in nonstatutory processes, the board stated: ‘‘[w]hen plicit based upon the description and context of the ap- functional descriptive material is recorded on some plication or general language in the preamble of the computer-readable medium, it becomes structurally claim. Instead, the use of a machine to perform one or and functionally interrelated to the medium and will be more of the claimed functions must be expressly de- statutory in most cases since use of technology permits scribed in the body of the claim so as to be a meaning- the function of the descriptive material to be real- ful limitation on the claim. If a method claim can be read in such a way that all functions can be performed Similarly, in Ex parte Azuma,61 a claim to a ‘‘com- by a human, it will likely not pass the machine prong of puter program product . . . comprising: a computer us- able medium’’ was found to be directed to statutory The ‘‘Interim Examination Instructions for Evaluat- subject matter under § 101 because the language ‘‘com- ing Subject Matter Eligibility Under 35 U.S.C. § 101’’ re- puter usable medium’’ referred to tangible storage me- cently issued by the Patent and Trademark Office con- dia, such as a server, floppy drive, main memory and firm that the recitation of a general purpose computer hard disk as disclosed by appellant’s specification, and is sufficient to satisfy Section 101 where the general did not ‘‘implicate the use of a carrier wave.’’ purpose computer is ‘‘programmed to perform the pro- In an older decision, Ex parte Cornea-Hasegan,62 cess steps, . . . in effect, becom[ing] a special purpose however, the Board seemingly came to the opposite conclusion, holding that a claim reciting ‘‘a computer Concerning data transformation, there seems to be readable media including program instructions which agreement of the Federal Circuit and at least one dis- when executed by a processor cause the processor to trict court that a method that is both limited to transfor- perform’’ a series of steps was not patent-eligible under mation of specific data and limited to a visual depiction Bilski. The board first determined that ‘‘analysis of a representing specific objects or substances qualifies un- ‘manufacture’ claim and a ‘process’ claim is the sameunder 63 Id. at 11.
57 No. 2008-004440 at 12-13 (B.P.A.I. Aug. 24, 2009).
65 Diamond v. Diehr, 450 U.S. 175, 185, 205 USPQ 488 58 No. 2008-004366 at 10-11 (B.P.A.I. Aug. 10, 2009).
(1980); Gottschalk v. Benson, 409 U.S. 63, 67, 175 USPQ 673 59 No. 2009-002913 (B.P.A.I. Aug. 5, 2009).
60 Id. at 10 (comparing In re Lowry, 32 F.3d 1579, 1583-84, 66 ‘‘Interim Examination Instructions for Evaluating Sub- 32 USPQ2d 1031 (Fed. Cir. 1994) to In re Warmerdam, 33 F.3d ject Matter Eligibility Under 35 U.S.C. § 101,’’ U.S. Patent and 1354, 1361-62, 31 USPQ2d 1754 (Fed. Cir. 1994)).
Trademark Office, Aug. 24, 2009, at 6 (78 PTCJ 530, 8/28/09).
61 No. 2009-003902 at 10 (B.P.A.I. Sept. 14, 2009).
The authors’ recent experiences with examiners suggest that 62 No. 2008-004742 (B.P.A.I. Jan. 13, 2009).
the examiners are following these instructions.
der Section 101.67 Thus, claims analogous to those in In Concerning claims directed to computer program re Abele68 in which ‘‘data clearly represented physical products, one district court has held that appending ‘‘A and tangible objects, namely the structure of bones, or- computer readable media including program instruc- gans, and other body tissues [so as to recite] the trans- tions’’ to an otherwise non-statutory process claim is in- formation of that raw data into a particular visual depic- sufficient to make it statutory.72 The board has also tion of a physical object on a display’’ are patent- held ineligible claims to ‘‘a computer readable me- dia.’’73 The board has, however, also upheld the eligibil-ity of ‘‘a computer program product’’ as being embod- ied in a computer readable medium.74 Given these in- Bilski has had a significant impact in eliminating consistent decisions, the patent eligibility of claims in patent protection for inventions that are performed en- tirely by humans or can be interpreted as such if read Concerning claims directed to generalized computer broadly. This includes claims that describe processes processing functions, several Board decisions suggest for creating or manipulating legal and financial docu- that, absent a tie to a concrete real-world application, ments and relationships. In this area in particular, many such claims are likely to be deemed an ‘‘algorithm’’ un- pending applications filed prior to Bilski are no longer der Benson and therefore held to be non-statutory. 75 patent-eligible, and many issued patents are no longer Any recitation of a specific field of use for the claimed valid. This retroactive impact of the Bilski decision is process or use of the outcome of such processes are troubling, given the investment in these patents and ap- also more likely to be found ‘‘field-of-use’’ or ‘‘post- plications, which have now been rendered essentially solution activity’’ limitations insufficient to render the worthless despite the suggestion in the Federal Circuit’s claim patent-eligible. Thus, the more tied a claimed pro- earlier State Street decision, now overruled, that such cess is to tangible results or particular applications (not claims qualified for patent protection.
just fields of use), the more likely it is to qualify under Inventions that do not fit within the four statutory categories are also not patent-eligible. The Federal Cir-cuit and the board have rejected claims directed to ‘‘a III. Presenting and Claiming Methods in Patent signal,’’ ‘‘a paradigm,’’ ‘‘a user interface’’ and ‘‘a corr-elator’’ on the basis that these items did not qualify as a ‘‘machine, manufacture, composition of matter or pro- Several strategies for describing and claiming meth- cess’’ under § 101. 70 There is also an increasing focus ods or processes in patent applications may avoid or on the tangibility of the claimed invention in that, to minimize potential Section 101 problems.
qualify as a ‘‘machine’’ or ‘‘manufacture’’ under Section First, the description provided in a patent application should include well-defined steps or functions associ-ated with method or process. For example, when the claims include ‘‘initiating’’ method steps, a description Remaining areas of uncertainty concerning the scope of well-defined physical steps or functions for initiating of Section 101 include (1) what qualifies under Bilski as should be provided, and a concrete item, machine, de- a ‘‘transformation of an article or data,’’ (2) whether vice, or component that is responsible for the initiating claims to computer programs (Beauregard claims) function should be identified. For claiming ‘‘identify- qualify, and (3) whether internal computer processing ing’’ method steps, provide specific parameters for functionality not tied to a specific application or tan- making the identification, such as according to a speci- fied measurement.76 Where data is involved, the source Concerning data transformation, other than Abele- and type of data should be specified.
style claims discussed above, what qualifies as a data or Also, drawings should be provided that depict the article transformation remains unclear. Claims that concrete item, device, component or combination have been held not to meet the transformation prong in- thereof, and each method or process step or function clude claims directed to the creation or manipulation of should be linked expressly to at least one item, device data representing an intangible series of rights and ob- or component in the drawings that performs the step or ligations (e.g., credit card data) and claims directed to function. Broadening language indicating that other the transformation or manipulation of legal obligations components may also be used to perform the function and relationships. Beyond these specific examples, it is may also be included to avoid an unduly narrow inter- difficult to predict what will or will not qualify as a data or article transformation under Bilski.
The claims should affirmatively claim the device, ma- chine or component performing each step or function.
67 In re Bilski, 545 F.3d at 963; Research Corporation Tech- For computer or software-related inventions, the de- nologies, 2009 WL 2413623 at *9.
scription should specify that the software functionality 68 The claimed process involved graphically displaying vari- ances of data from average values wherein the data was X-rayattenuation data produced in a two dimensional field by a com- 72 Cybersource Corp., 620 F. Supp. 2d at 1080.
puted tomography scanner. See In re Bilski, 545 F.3d at 962- 73 Cornea-Hasegan, No. 2008-004742.
74 Ex parte Bodin, No. 2009-002913 (B.P.A.I. Aug. 5, 2009).
69 In re Bilski, 545 F.3d at 963.
75 E.g., Ex parte Greene, No. 2008-004073 (B.P.A.I. Apr. 24, 70 In re Nuijten 500 F.3d 1346, 1357, 84 USPQ2d 1495 (Fed.
2009); Daughtrey, No. 2008-000202; Ex parte Arning, No.
Cir. 2007) (74 PTCJ 631, 9/28/07) (signal); In re Ferguson, 558 2008-003008 (B.P.A.I. Mar. 30, 2009); Cybersource Corp., 620 F.3d 1359, 1366, 90 USPQ2d 1035 (Fed. Cir. 2009) (77 PTCJ F. Supp.2d at 1080 (concerning claim 2).
489, 3/13/09) (paradigm); Ex parte Daughtrey, No. 2008- 76 See Brief of American Bar Association as Amicus Curiae 000202 (B.P.A.I. Apr. 8, 2009) (user interface); Ex parte Laba- Supporting Respondent, Bilski v. Kappos, No. 08-964, ABA die, No. 2008-004310 (B.P.A.I. May 6, 2009) (correlator).
Amicus Br. at 12-13 (U.S. amicus brief filed Oct. 2, 2009) (78 71 E.g., Nuijten, 500 F.3d at 1356-7.
PATENT, TRADEMARK & COPYRIGHT JOURNAL is performed by a computer or computer components.
patent or published application, the option of importing Specificity as to the type of computer component per- subject matter into the specification is limited to ‘‘non- forming each function may be helpful in establishing essential’’ subject matter. In other words, the specifica- eligibility under the Bilski test.
tion can only be amended to disclose a machine for per-forming process steps as long as one skilled in the art IV. Fixing Pre-Bilski Applications to Meet the New would recognize from the original disclosure that the process is implemented by a machine. The key in mak- For patent applications filed prior to the Bilski deci- ing this type of amendment is avoiding (or overcoming) sion, it can be challenging to meet the new require- a rejection under 35 U.S.C. § 112, para. 1, for lack of ments for patent eligibility, particularly when no ma- chine or transformations were expressly described in If incorporation by reference is not an option, a patent applicant may submit evidence, such as a decla- In some cases, there may be sufficient explicit de- ration by the inventor or a duly qualified technical ex- scription of a machine, e.g., a computer, such that the pert, demonstrating that one skilled in the art would un- machine can be added into the body of the claims. For derstand the disclosed method to be one performed by example, patent applications for computer-related in- a machine. Unlike attorney argument, which can be dis- ventions sometimes contain a generic description of regarded, such evidence must be considered by the ex- computers that are used to perform the claimed method, and such a generic description may be suffi- One other option is to reformat the claims. Since Bil- cient to impart patent eligibility to the claims when the ski ostensibly does not apply to system and apparatus general-purpose computer is programmed to become a claims, in some instances it may be possible for an ap- plicant to convert his method claims into system claims For patent applications lacking in an explicit descrip- to avoid application of the Bilski test. This strategy, tion of any machine, however, the application may in- however, is unlikely to succeed where the patent speci- corporate by reference patents or publications that can fication does not describe such a system for implement- be used to bolster the specification and provide support ing the method and therefore does not provide the req- for the requisite claim amendments. When an applica- uisite disclosure of the claimed invention under Section tion incorporates by reference a U.S. patent or pub- lished U.S. patent application, any description from the incorporated references, whether or not the subject The future of the Bilski machine-or-transformation matter is ‘‘essential’’ to support the claims, may be im- test now rests with the Supreme Court. Regardless of ported into the specification. This option may enable the outcome of the appeal, however, it is clear that the importation of the requisite description of a machine, scope of statutory subject matter under Section 101 has which can then also be recited in the claims.77 When been narrowed. The Supreme Court now has a chance the document incorporated by reference is not a U.S.
to clarify what has been excluded; it may even reject ormodify the Bilski machine-or-transformation test. How 77 Manual of Patent Examining Procedure, Eighth Ed., Rev.
this will affect the development and protection of cur- 7/2008, at § 608.01(P); see also 37 C.F.R. § 1.57.
rent and future technologies remains to be seen.
Source: http://www.dorsey.com/files/upload/luedke_bna_patent_journal_nov09.pdf
(resolução 404.2012 retificação 19062012)
RESOLUÇÃO Nº 404 , DE 12 DE JUNHO DE 2012 Dispõe sobre padronização dos procedimentos administrativos na lavratura de Auto de Infração, na expedição de notificação de autuação e de notificação de penalidade de multa e de advertência, por infração de responsabilidade de proprietário e de condutor de veículo e da identificação de condutor infrator, e dá outras providências.
Cheloidi e cicatrici ipertrofiche in dermatologia
a cura del dr. Antonio Del Sorbo - Specialista in Dermatologia e Venereologia antoniodelsorbo@libero.it I Cheloidi di Alibert A volte una ferita anche apparentemente banale, guarisce lasciando una cicatrice voluminosa, rossastra e soprattutto antiestetica. I cheloidi sono cicatrici abnormi che possono far seguito a intervento chirurgico (es: tiroide, mammella, etc) e questo u

Answer: It required the transformation to be limited to specific data and a visual depiction representing specific objects or substances.


Input: According to the text, what is Toby Schindelbeck's observation about the police?

Context:
July | 2012 | Chico Taxpayers Association
Keep a Knockin’ but you can’t come in! Come back next Tuesday night and try it again! And be sure to bring plenty of your friends.
Toby Schindelbeck has finally been rewarded for his persistence – he’s been going before Chico City Council, asking that Finance MisDirector Jennifer Hennessy comply with city code and give a budget report at every meeting. City clerk Debbie Presson has informed him that this subject will be “discussed” at the August 7 council meeting.
But we know, it won’t be a very good “discussion” unless a bunch of people come in and demand some action. Toby has observed that issues like Corporate Personhood and the “single-use” plastic bag ban have drawn fairly small crowds – he estimates 25 – 30 people, and I’d say he’s being generous. The city has acted on these issues, with only that small fraction of the population in support. So, Toby believes there needs to be an even stronger presence to get a decent discussion on this matter, and I agree.
Like Toby and Stephanie Taber and others have been saying, the city code calls for a monthly budget report, with sticky details like receipts, etc, and Jennifer Hennessy admits she has not made such a report in the seven years she’s been with the city of Chico. Try not paying your taxes for seven years – you’ll get the same treatment as the man from Touch of Class Florist – 68 years old, and he’s being sent to PRISON. But Jennifer Hennessy and her boss Dave Burkland, and their overseer, Mayor Ann Schwab, get to flog the law right in front of everybody, and Ann just steps right into that little red convertible and drives off to her palatial estate in Forest Ranch.
The law is a piece of paper. It takes people to demand law enforcement. We’ve got a serious law enforcement problem in our town. The police say they aren’t paid enough to enforce the laws in the streets, and now Dave Burkland says, he just doesn’t have to.
And your mayor won’t make him either. He’s retiring, on more than $150,000 a year, for the rest of his life, but she’s up for election in November – time to take out the trash.
That meeting is scheduled for August 7, the usual time, the usual place. I’ll keep you posted.
Tags: Ann Schwab Chico CA, Ann Schwab for city council, Dave Burkand Chico Ca, Friends of Ann Schwab, Jennifer Hennessy Chico Ca
Stephanie Taber answers Quentin Colgan’s letter to the News and Review
I get complaints from friends and strangers, and it has also been my own experience, that the editor of the Chico News and Review is not always objective in deciding which letters received from the public will be printed in the paper and which ones won’t. Robert Speer has offered me excuses, but I have always found him to be disingenuous. For example – he told me he would only run letters that referenced an article or letter recently printed in the paper – untrue a million times over. He also told me he wouldn’t print letters that had already run in the Enterprise Record – also untrue a million times over. The man has his own reasons for running or not running letters.
David Little is more objective, but he’s got his faults too – once he threw out a letter from my husband and later admitted he had thought I’d written it and used my old man’s name. He just threw it out without even calling the phone number or e-mailing, just assumed I’d do something like that when I’d never done anything like that before, because he was mad at me over a snit we were having at the time.
I think Little gets his nose out at people personally, and Hell hath no fury, know what I mean? With Speer it can personal but I think it’s most often political. Suffice to say, they both carry what my dad used to call a “Shit List,” and if you’re on it, you don’t get ink in their rag.
Of course either paper is equally likely to print a total wad of lies or misinformation without so much as a google fact check. I will never forget the time Dave Little printed a letter saying the cops had been called to my house on a dog complaint. The letter writer insinuated that this was why I often wrote letters complaining about the cop contracts. I called Little and told him the letter was false, nothing like that had ever happened – but he wouldn’t retract it. I had to look the old man up in the phone book and call him myself, tell him he had been misinformed, and ask him to write a retraction. He apologized profusely and the apology was in the paper within three days. He wouldn’t tell me where he got the information, but later I found out he was a member of VIPS, and he still is. I think that’s something Dave Little could have looked into before he printed a story like that about me and my family, not to mention my dogs, but he didn’t see it that way. Poor journalism, is how I see it, and that’s what I’ve come to expect out of both the daily and the weekly.
So, pardon me if I was not surprised when my friend Stephanie mentioned to me that she didn’t think Speer would run her response to a letter from Quentin Colgan, regarding our current fiscal morass. QC made an argument he has been swinging around town lately – that Fire Station 5 had to be closed recently because the Tea Party forced the city to have a $150,000 election over Measure A.
The first problem I have with this argument is, the city is out a heck of a lot more than $150,000. The second problem I have is, I happen to know that over 8,000 Chicoans signed that petition, and there’s not more than 600 active members of the Tea Party. I also know the Tea Party didn’t sponsor the petition drive, nor were they the only people that marched out with those petitions. Colgan’s argument doesn’t make sense to me, but it’s amazing what kind of “facts” the general populace will believe if you just keep repeating them.
Some folks are trying to use the Tea Party as a target to rile up their peanut gallery, using Measure A as their rally call. They keep banging the same old drum. They refuse to have a rational discussion about the situation we’re facing, because it’s going to mean some sour beans for them and their trough-dwelling friends.
So, it’s up to a rational person like Stephanie Taber to lay it out straight for those who like facts. Stephanie attends the meetings, she reads the reports, she goes to the trouble of putting questions in writing for $taff, and then waiting persistently for an answer that practically has to be deciphered by a lawyer. She has followed this budget conversation since the day then-city-manager and first rat to jump, Greg Jones, expressed his grave concerns that we were headed straight for bankruptcy. She has followed the figures and checked the facts until she has forced these rats right to the wall – they have lately begun to dig their feet in and refuse to obey the sunshine laws, refusing to give the fiscal reports demanded by the city charter. Some people can try to run their little smokescreen of repetitive nonsense, but more rational people are finding out the truth. Thanks to Stephanie Taber for writing this letter below, which may or may not run in the Chico News and Review:
I’d like to take this opportunity to respond to Quentin Colgan’s letter of July 12th; primarily because the costs surrounding the Special Election held regarding Measure A have been distorted. Yes, it did cost $150,000, but why? That’s the elephant in the room. The progressives on the City Council chose the method by which the election would be held. Per the City Charter (which is the City’s Constitution) Section 501 clearly states “The City Council may determine that any Special Election shall be held by mailed ballot” etc. That would have cut the cost by half, at least. But the Council chose the most expensive means possible, voting at the precinct. They were afraid that just telling the students they were being disenfranchised, which was an obvious lie, would not be sufficient to defeat it.
As to “it’s all the Tea Party’s fault”; I was the only signature to the Measure. I felt no need to consult the Tea Party before I took that action; but did enlist the help of many concerned citizens to gather the more than 8,000 signature required to put it on the ballot.
Toby Schindelbeck has called upon our Finance Director to adhere to Section 908 of the City’s Charter which states “(the) Finance Director shall submit to the Council through the City Manager monthly statements of receipts, disbursements and balances in such form as to show the exact financial condition of the City”. It does not state when you may want to or if you have time to; it says “shall”. No one on the Council or otherwise can remember when that may have happened last. If it was being done as the Charter states it would have been recognize that the City was facing a financial Armageddon and steps could have been taken much earlier in the fiscal year to avoid the closing of Fire Station 5.
Tags: Ann Sc hwab Chico Ca, Ann Schwab for city council, Chico Enterprise Record, Chico News and Review, Chico Tea Party Patriots, City of Chico, David Little, Friends of Ann Schwab, Quentin Colgan, Robert Speer, Stephanie Taber
City Art Director Mary Gardner is foisting a new “Art Tax” on us to pay her own salary
To mgardner@ci.chico.ca.us, gerimahood@yahoo.com, mcbergarts@gmail.com
(Mary Gardner, city of Chico public arts director, city of Chico, Geraldine Mahood and Monica Berg of the Arts Commission)
I recently read your memo here
Chico-Arts-Building-Tax.pdf
I think it’s despicable Ms. Gardner that you are trying raise revenues for your own salary by foisting a new “Art Tax” on new development.
Ms. Mahood, Ms. Berg, nobody wants eggsuckers like you telling them how to spend their money or what’s “art”. You people make me sick.
The Chico Taxpayers Association will fight this grab, as will other civic groups through the area. That’s why you’ve kept your efforts “under the radar” I assume – you don’t want people to know about this, because you don’t want to hear what they think about it. Or YOU!
You people need to get real jobs and quit sucking off the public teat.
http://www.norcalblogs.com/adhoc/
Sincerely, Juanita Sumner, Chico CA
Tags: Ann Schwab Chico CA, Ann Schwab for city council, Chico Arts Commission, City of Chico "Art Tax", City of Chico Arts Policy Manual, Friends of Ann Schwab, Geraldine Mahood, Mary Gardner, Monica Berg
Jennifer Hennessy is incompetent – she can’t do her job and Burkland says she doesn’t have to
I’ll never forget my first real job – a clerical position at a manufacturing plant. I would compare it to the story of the miller’s daughter. On the first day, I was told that the employee I was to be replacing would stick around for a week to train me. At noon that day, having shown me where everything was and how to use the coffee maker, she got up from her chair, smiled, and told me she thought I could “handle it,” then left. At one o’clock, the plant manager came over to my desk followed by several “production” workers. They brought cart loads of microfilm, on rolls, in little white boxes. I was to label all of those boxes, three carts, piled high. This job had gotten held up, he explained, it would be “great!” if it could go out today. Did I think I could get them done by 4 o’clock? I wanted to make everybody happy, so said I yes without thinking, and set to work loading the labels into the typewriter.
It was a disaster. I had never typed anything like those labels before – typing class had been all about letters and envelopes, columns and reports. The labels skittered all over the platen, getting glue all over the inside of the typewriter. About every 50 or so labels, the platen had to be taken out and cleaned with alcohol. I typed and typed. By 3 o’clock I knew I was in trouble. The production workers had come over to my desk to help me affix the sticky labels. We were nervous, labels were getting screwed up. At 3:30 the office manager and receptionist came back to my desk to help with the labels. I typed and typed, and tried not to cry.
We didn’t make it. The plant manager was flustered. The salesman who’d promised the job was really pissed off, he said mean things. I apologized again and again, they told me it wasn’t all my fault, but could I please be more careful what I committed myself to in future. I could tell they also expected me to get a hell of a lot faster, but they were just trying to be nice.
So, I got faster. I came in early in the morning and worked through lunch until I got better at my job. I had signed up for a typing job, nobody had described all the weird stuff they expected me to type. It started with typing and labeling, not only sticky labels, but microfiche jackets. They have a little quarter inch tall label strip across the top that chips and peels if you aren’t careful loading them into the typewriter, and strips or frames of 35 and 16 mm film that falls out in your typewriter. Then there were the three-part work orders, with carbon paper, and the three-part shipping labels, also with carbon paper. There were the mistakes – whole orders that had been indexed incorrectly, and therefore typed incorrectly, and therefore had to be corrected and typed all over again. I won’t describe what I had to go through to correct microfiche labels, it was too stupid. I hated doing that, so I asked for my own little “eye-loup” – a little magnifier that you hold up to a light to look at the tiny little page numbers on the film – to make sure the cards had been indexed correctly before I typed them.
I’m not perfect, but I know I’m competent, cause I kept that job for five years while I watched others get fired, for everything from showing up late to breaking expensive equipment to stealing. I was given new jobs and increased responsibility as time went by. I got good job reviews from my supervisors, and good raises. Morale was high, we liked our co-workers and our managers, we felt like a team. Our customers were nice to us too. We worked for cities and counties, hospitals, banks – anybody who needed to keep records. We were trusted to handle confidential records, like people’s medical records. As we handled these confidential files we were simply told, “Don’t look at them,” so we didn’t.
I left in 1984 in finish school. Over the next decade computers killed the microfilm industry, and the company went out of business.
Excuse me if I compare my experiences in the private sector with stuff I’ve seen coming out of our city $taff. I keep waiting for some professional behavior, some professional accountability out of the people who run our town, and I start to wonder if I will ever get it. For a couple of months now, Toby Schindelbeck and Stephanie Taber, among others, have been asking council and Finance MisDirector Jennifer Hennessy to provide a simple accounting of city finances, as is required by the city charter, and she just plain refuses to give it. City Mangler Dave Burkland won’t make her.
Last month she actually admitted, she is UNABLE to do it. At the June 5 meeting she admitted that she is incompetent to follow the city charter. She said that when she came to her position seven years ago, she “struggled” with doing such a report – something every house wife does – and went whining to then-city-manager Tom Lando, who apparently patted her on the head and told her she didn’t have to do it anymore.
I don’t know about you guys, but I go over my check book every month, just to make sure everything is straight. I’ve found big, dumb mistakes, in the 100’s column even, that could have caused big, dumb problems down the road. I’m no math instructor, like Mary Goloff, but it’s not exactly rocket science – you just add your deposits and subtract your checks and withdrawals. I’ll admit, when my kids were little, I felt like I never had time to do that, and stuff would get screwed up. So now that I’ve got time, I make it a regularly scheduled event, and it’s amazing how much easier it is. And, I can keep the figures in my head, I know essentially how much I can afford to spend when I’m at the grocery store, or what kind of activities we can plan. My husband and son are enjoying a weekend trip right now that is already paid for, thankyouverymuch.
But Jennifer Hennessy is unable to do that? And she has expectable stuff – over 80 percent of her budget is payroll. She doesn’t have that many emergencies. The biggest emergency she’s had lately, is that the state has taken back the fund she’s been mis-using – the RDA. She was paying salaries and benefits out of a fund that’s supposed to be reserved for emergency public works projects. In other words, she’s been dipping into the till to pay her own salary!
The mayor is to blame here, she’s the captain of our ship. Unfortunately, like the captain of the Costa Concordia, she’s abandoned ship for a party onshore. While she and her college chums bully their bag ban down our throats, our ship is sinking. We have less than $200,000 in our reserve fund, we have un-secured pension obligations totaling in the millions and growing every day, and we have $taff who are using blackmail to get their way – they are just refusing to do their jobs. Hennessy won’t give the report she’s required to give because it’s BAD. I think the mayor is completely behind her on this – Ann Schwab doesn’t want us to hear that report either. Would you?
Please write a letter to council demanding that Hennessy do her job, or get out.
Tags: Ann Schwab Chico CA, Ann Schwab for city council, bankruptcy, City of Chico, Dave Burkland, embezzlement, Friends of Ann Schwab, Jennifer Hennessy, malfeasance
Scranton, Pennsylvania cuts workers to minimum wage – only $130,000 in their cash reserves
I finally got a chance to watch the video of last Tuesday’s council meeting. It cut on me during the meeting, just after Walker and Goloff were mopping up their attack on Sorensen, and I didn’t get it back til yesterday. I have watched the video in bits and snatches. I made it to the noise ordinance conversation last night, but had to turn it off after Jessica Allen and a couple of her friends got up to demand their rights to be bad neighbors.
One thing I learned is that the city of Chico has less than $200,000 in the reserve fund. No, I did not forget a zero on that figure, that’s it – less than $200,000. Read it and weep – and then call them to ask what they did with that property tax check you just sent in.
You can look at the budget report here: http://www.chico.ca.us/finance/budget.asp
You see the millions the city takes in, in sales tax (over $17 million) property tax (over $11 million), even taxes on your PG&E, phone and water (almost $7 million), and your visitors’ motel rooms (over $2 million). To me that seems petty – “bed tax”? Some people think it’s a good idea to shake down the visitors of your town, as if it’s not enough that they spend money on your motels, restaurants and shopping centers. It’s a common grab all over California, every city does it. A lot of distasteful things become “common” when no decent person stands up to say “enough is enough.”
In Chico, as has been oft repeated, over 80 percent of our budget is in salaries and benefits. That’s the elephant in the room, and everybody’s getting pretty hip deep in elephant shit around here. It’s a simple concept, no matter how convoluted $taff and council try to make it: if they spend all the money on salaries, benefits, and the Great Pension Stock Market Disaster, there’s no money left to pay for supplies to say, clean up leaks in the sewer and water lines that are causing the state to fine us by the day, widen the roads that we are required to widen because of the permitting of Meriam Park, etc. And you can just get used to those pot holes in the street out front of your house. Got bad neighbors? Get a lawyer.
What’s really frustrating are the reactions of the cops and fire – they act like they don’t get paid at all. Those guys take most of the 80 percent. They get overtime written into their schedules. According to Hennessy, both fire and the cops are over budget on their workman’s comp claims for at least the third year in a row. The city just slammed another cop contract past us without public review, and signed the new chief’s contract three days before it was made available to the public, and then only by request and a direct visit to the clerk’s office Downtown.
So, we will get another year of poor response times, bitching and moaning from cops and fire. Get ready for your homeowners and your car insurance to go up – the insurance companies know when your local police and fire departments are a pile of shit.
And don’t think I’m not wondering about all those suspicious house fires.
You can just forget about any of the services a city is supposed to offer. Try to get something out of the city clerk these days – if you can catch her in the office!
Well, here’s the story of Scranton, Pennsylvania – home of Michael Scott!
http://bottomline.msnbc.msn.com/_news/2012/07/10/12659748-scranton-pa-slashes-workers-pay-to-minimum-wage?lite
The mayor of Scranton, when faced with a situation similar to Chico’s mess, did what needed to be done. Unfortunately, he waited until it was too late to do something rational. I’m afraid it’s come to that with our city council – if you think that scene between Goloff and Sorensen was rational, well, you deserve to live here.
Tags: Ann Schwab for city council, Bob Evans for city council, Chico City council eletions 2012, cities declare bankruptcy, Friends of Ann Schwab, pensions, phone tax, salaries, sales tax increase
Marysville council rejects sales tax ploy by retiring city administrator – where’s Chico’s knight in shining armor?
I am not a member of the Chico Chamber of Commerce, but I check in to their website regularly to see what they’re up to. Sometimes I believe, they are the real Chico City Council. While our elected leaders frolic and cavort in their stupid committee meetings, the Chamber is working on a “Top 10 Economic Development Action List”.
Yeah, sounds great, until you consider, one of their “Top 10” is a proposal to raise the local sales tax.
One prominent member of the Chamber who might be able to fill us in on the discussion is Bob Evans. I’ve asked Bob where he stands on this tax increase, but he just keeps saying he hasn’t seen a proposal yet. Lately I have asked him if he would require Lando and the other sales tax increase proponents to get the legal number of signatures on a petition before he votes to put this proposal on the ballot, but he won’t answer me. His downright refusal to discuss the tax increase is frustrating to me – I want to believe Bob is a “fiscal conservative.” After all, he had some high and mighty things to say about his opposition to the phone tax. But, he knew the phone tax didn’t need his support to get on the ballot. It’s easy to posture as the good guy when you know others will achieve the end result you really want. Evans’ resistance to making a pledge against a sales tax increase is screaming in my ear like a fire alarm.
In Marysville, Mayor Bill Harris had no trouble making himself clear when his city mangler proposed a half-cent sales tax increase: “This will be viewed as the City Council coming to them wanting more money again.”
Well, the article mentioned, the city mangler is retiring, so I would also see it as his way of securing his f-ing pension, but nobody mentions that.
City councilwoman Christina Billeci echoed a sentiment I’ve been hearing increasingly in Chico – “We need to balance the budget with the revenues we have,” she said.
Other council members cited lack of support from citizens, including one councillor who claimed to have got “angry reactions” to the proposal. One council member said he might have supported the move before the June election, “But the cigarette tax was voted down, and that should have been a slam dunk,” he said. “I would see this as a waste of effort and money.”
The only council member who supported the notion, Head Start administrator Ricky Samayoa, made some pretty disparaging remarks about the town.
“There’s a lot of people that know there’s a lack of resources here for us to have a proper city and manage it,” he said. Oooo! A “proper city”! What a bitch! Does he have letters from constituents to support this statement, or is he just using “a lot of people” to describe himself and his co-workers? Not enough drive through coffee stands for you Ricky? Not enough 5 Star restaurants or pink boutiques? Sorry, we’ve never been ones for putting on the Ritz here in the North State, better get in your zip car and drive back to the Bay Area.
In the Enterprise Record story, Samoyoa further claimed that “continued cuts to maintenance and other aspects of the city’s budget hurt chances for an economic recovery.” I imagine Marysville has the same problem Chico has – too many $100,000+ salaries and not enough $20,000 – $50,000 workers. While he’s sitting down there under the air conditioner vent at Head Start in a fresh shirt and manicure, the streets are going unmaintained, the classrooms overcrowded, the police and fire departments underfunded – is that the problem Mr. Samayoa?
“The way we’re continuing to go, it’s just going to be a dying city, even if the economy picks up,” he said. Now, that statement doesn’t even make sense. This is a typical example of scare tactics. “The way we’re continuing to go…” You mean, paying $100,000+ salaries to fat bureaucrats, while cutting services to the public? Somehow I don’t think that’s what he’s talking about. ” …it’s just going to be a dying city…” Wow, what an idiot – obviously no knowledge of local history. Marysville has been through so many booms and busts, it ought to be called “Bouncyville.” If you get to know Marysville, you see it has everything needed to be a wonderful place to live, in good times and bad, regardless of carpetbaggers like Samayoa.
“Give folks the opportunity to have this debate,” Mr. Samayoa suggests. Sounds like the rhetoric coming from Andy Holcombe and the rest of the sales tax increase proponents. Hey, that’s a swell idea! People should talk about these things, hash them out. And then, if enough of them sign a petition to put such a proposal on a legal ballot, well, they can VOTE on it! But that costs alot of money – best for those who really believe in this cockamamie idea to get the petition first, show the need to spend all that money on an election. That’s what rational people would do, anyway.
But if you ask Holcombe to discuss the pending proposal, he denies there is any such thing. The only member of Chico City Council who is willing to discuss this proposal at all has been Mark Sorensen – thanks Mark. At least Mark has been good enough to answer our questions about the mechanics of such a proposal and getting it onto the ballot. Evans and Holcombe have both denied knowing anything about it, although Holcombe has made it good and clear he’d support raising the sales tax and Evans has been seen at Chamber discussions on the matter. The others have been mum to the public, but I’m guessing they will support it. Holcombe, Schwab, Goloff, Walker, Gruendl – and Evans? – are all banking on more revenues to rescue the city from the Shit Creek they’ve floated us up. Evans, while he will admit we’re in deep shit, will not offer so much as a suggestion of a paddle. He seems to be holding back until after he gets himself safely re-elected in November. Then he’s got a year to get that sales tax voted in and three years to make the public forget he had anything to do with it.
Well Bob, is that what you’re up to?
I’ll say, if he were at least honest, I might be able to hold my nose and support him, but this game he’s playing is a real turn-off.
Tags: Ann Schwab Chico CA, Ann Schwab for city council, Bob Evans Chico Ca, Bob Evans for city council, chico city council race 2012, city of Chico bankruptcy, city of Chico sales tax increase, Friends of Ann Schwab, Ricky Samayoa Marysville Ca
Council video feed still not available – $taff seems to have taken the Summer off!
I know, there’s probably a perfectly legitimate explanation for this. Debbie Presson isn’t sure why the feed is off, but she’s got somebody working on it. Not yesterday though, cause she was out of her office.
I’ll tell you what else is interesting – there haven’t been any of those morning meetings lately – in fact, it looks like all the committee meetings for July are CANCELLED. In fact, there hasn’t been an “Economic Development” committee meeting for months that I’m aware. For all intents and purposes, the city of Chico seems to be on Summer Vacation! How nice for them!
But, as you see, the town runs along without them. In fact, I’m wishing the public works department would also take a hike – they’re TOO BUSY right now, tearing up the streets Downtown. Oh well, the college students have “gone home” – what do we need Downtown for when the college students have gone home?
That seems to be the gist of if – the city of Chico is here to serve the college students. The rest of us can just get along – as long as we keep paying our taxes, nobody will bother us!
I just have to wonder, what are these $85,000, $95,000, $134,000 $taffers doing right now, and why do we need to keep paying them?
Tags: Ann Schwab Chico CA, Ann Schwab for city council, City of Chico, embezzlers, Friends of Ann Schwab, malfeasance
New police chief’s contract signed last Tuesday, made available to the public Friday – gotta love that “sunshine”!
Last Tuesday night we got a new police chief – Kirk Trostle. Only a month ago city manager Dave Burkland issued a statement – “police chief candidates not knockouts” according to the Enterprise Record. Trostle is a refugee from the Oroville police department, where, as chief, he certainly had his critics. He came to Chico only about a year and a half ago, from a department that was not without it’s problems. The council made their appointment without any elaboration – he was essentially the best thing they could come up with on short notice.
But shouldn’t we be able to negotiate a better contract with this man? Retiring Chief Porky Mike Maloney is getting over $165,000 a year, just in salary. He will be getting over $100,000 to retire, for the rest of his life, plus medical benefits. Frankly, I predict he’s carrying a colostomy bag within five years.
Have you seen Trostle’s contract? They signed it at council last Tuesday. But when we asked for it, they said we wouldn’t be able to look at it until Friday. I was invited to go down to the clerk’s office, at her convenience, 9 – 5, during MY WORK DAY, to look at a contract that had already been signed. Why in the hell would I want to do that? They don’t even offer you a decent cup of coffee.
So no, I haven’t seen it yet, but I’m guessing, it’s worse than Maloney’s contract. A fellow taxpayer went down Friday and reports he has the contracts, but has not given me any details. I don’t know if he had to pay for paper copies or what, but you can view it for free if you want to go down there. I’ll get back to you when I got something.
Tags: Ann Schwab Chico CA, Ann Schwab for city council, Chico Police Department, Chico Police Officers Association, City of Chico, Friends of Ann Schwab, Kirk Trostle chief of police chico ca, mike maloney retires at 50 what a pig
Mary Goloff and Jim Walker gang jump Mark Sorensen on the dais – just another lovely Chico city council meeting!
I’m sitting here in disbelief of the attack I just watched Mary Goloff and Jim Walker wage on Mark Sorensen at city council tonight. I couldn’t make the meeting, so I have been watching it via computer.
Sorensen had been challenged by a smarmy Jim Walker to list what changes he would make to balance the budget. Sorensen carefully began to explain that city funds had been depleted by millions over the last few years, with escalating costs leaving revenues in the dirt. He also explained that the lion’s share of our expenses are “operating costs,” meaning, salaries. He also carefully explained that there were programs we simply could not afford anymore, meaning, salaries.
Mary Goloff could be heard heckling him off microphone. If you or I did what she was doing we’d be asked to leave the room, possibly with police escort. But Mayor Schwab just sat there looking at Goloff, saying nothing. Goloff finally got on mike, interrupted Sorensen, and asked him to be specific. So, Sorensen offered housing, saying it had been a mistake to undertake so many housing projects, and he also specified the arts programs – such as the requirement that any capital project include one percent of the total cost of that project be added for art.
At this point Goloff began to interrupt Sorensen. She started heckling him about how “we all agree” that the arts are important, yadda, yadda. She just kept at Sorensen, not allowing him to answer any of her out-there questions, until Sorensen asked her to stop interrupting him.
After a quick exchange Walker butted in to attack Sorensen. Out of nowhere, Walker bashed Sorensen about wanting to spend more money on the police department, asking Sorensen where he would get the money to hire more police. This question was off base, Sorensen hadn’t even gotten that far before Goloff had completely derailed him.
Jim Walker is just sitting out his time, he seems to be enjoying himself at all of our expense. He, like so many “public servants,” seems to think he is elected to do what he wants, what seems like “the right thing” in his fairy tale mind, instead of carry out the law.
Mary Goloff seems to think she has been anointed Queen in some farcical aquatic ceremony to lead us all in the light of her cough syrup-induced wisdom. She seems to love the sound of her own voice, while here at my house, it sets off the hounds for blocks.
My computer started failing at this point, and I was unable to watch the rest of the meeting. I am going on vacation tomorrow, I’ll see you folks on the flip flop.
Tags: Ann Schwab Chico CA, Ann Schwab for city council, Friends of Ann Schwab
Turn that S*** UP!
We had a lively discussion down at the library yesterday about how we are going to fight the phone tax increase in November.
The key here is to inform the public. $taff has already done their best to make this measure confusing and deceptive, actually writing into the measure that it will lower taxes. They mean, they are lowering the rate half a cent, but of course, this half-cent will be an ice cube in hell when they apply the tax to all the new stuff this measure allows – starting with cell phones, texting, paging, and adding whatever new technology comes along. All the voter needs to know is, this measure will raise his/her taxes, noticeably.
Even people on welfare will pay this tax, even though they qualify for the rate-assistance plans offered by the phone companies – utility tax is based on the total bill, before the adjustment for the rate assistance. And, this tax includes those prepaid phone cards.
The hardest hit will be commercial customers. A friend of mine who owns a little manufacturing business in town tells me the city of Chico thinks all business owners are “rich sugar daddies”.
My friend always tells me, that while I am in these meetings Downtown, he is in Oroville or Redding or Modesto or some other town, dealing with his business. He says these towns have better, more workable $taff. He is among the business owners who have used the word “hostile” to describe Dave Burkland, and the city business climate in general.
We have to get the word out to people like my friend that NOW IS THE TIME to get involved. I like that band, Rage Against the Machine – they say, “it has to start somewhere, it has to start sometime. What better place than here, what better time than NOW!”
We’re fighting the city, which will use public money to fund this tax increase initiative. For example, they have already used $taff time to research and write the measure, and now council members and $taff will create the “for” argument to be placed on the ballot. Our city attorney makes over $190,000 a year in salary alone – Mark Sorensen figured the cost of an hour of her time, but I forget the figure. More than most people make in a day, is all I remember.
The city will turn over their arguments in favor in August – at that point we can take this dog and pony show on the road. Until then, let’s keep working. Thanks all!

Answer: Toby Schindelbeck's observation is that the police say they aren't paid enough to enforce the laws in the streets.