It was the two same-city rivals, who only meet each other in the regular season once every four years.  They share the same stadium, alternating home games from week to week.  And, although, the Jets were officially the home team, the stadium was heavily flooded with Giants blue.  The weather was sunny and unseasonably warm and everyone was more than happy that they could leave and have, at least, the next two days off from work, instead of treking to the office as they normally would after a typical Sunday afternoon game.  Most importantly, however, the game actually meant something:  The winner would go on to play the next week in an attempt to win their division, while the loser’s season would be, effectively, over.  It was all or nothing.

I was lucky enough to be on the sidelines before kickoff.   And, also lucky for me, the New York Giants prevailed 29 to 14, in a matchup that was worthy of twice the already-inflated ticket price.

There are many more pics that can be seen in my Flickr set for this game…

For this installment, I take a look at United’s latest international first class product, marketed as the United First Class Suites.  It’s important to point out that this is the international first class services from the pre-merger United Airlines – this is NOT a review of (pre-United merger) Continental Airlines’s BusinessFirst service (you can read my review of the upgraded Continental BusinessFirst seat here, if you’d like.   It should be noted that the new United Airlines will maintain a mix of two-cabin and three-cabin services, including the seats that I review today, as well as the new-ish Continental BusinessFirst product and the fairly-new United International Business product.

This review happens to be my first experience in United First Class on an international route.  Despite that fact that I live a few miles from the “new” United’s hub at Newark, I actually have limited experience flying United over the years.  This is, in fact, only my third premium class trip on United and, to date, I have to say that I’m not overly impressed.

My route on this trip was from Shanghai’s Pudong International Airport (PVG) to Los Angeles International (LAX).   The PVG-LAX route was flown on a Boeing 777-200, configured in three classes.  The first class cabin seats a total of 8 people in a two-row, 1-2-1 configuration. The adjacent business class configuration on this flight seats 40 people in a bizarre 2-4-2 forward facing/read-racing configuration – pretty much guaranteeing annoying bathroom break disturbances for every single business class passenger throughout the flight.

The single star in this service is, without a doubt, the First Class Suite.  It is a very large, comfortable seat that provides ample room for storage, making for a comfortable flight, whether sleeping, eating of lounging.

No, it’s not the most luxurious looking suite on the market today, but it is comfortable.   Each seat is slightly angled, which helps a bit with privacy issues if you’re sitting in the middle aisle – as you can see, there are no dividers between the seat next to you.   One small annoyance is the addition of a shoulder seat belt (in addition to a lap belt) in this configuration.  The shoulder belt can be uncomfortable, to say the least.

In this suite, stowage is no challenge, as there are a number of different compartments to place all of your goodies, including a huge bin located on the aisle side of the seat:

The console next to the seat provides seat controls, headphone jacks, USB charger connects, a power port and a remote control:

Legroom is quite large, even for all 6 foot 4 inches of me, although the television is relatively small compared to some of the other comparable first class products on the market (Emirates, Singapore, TAM, etc.):

My 11.5 hour flight to LAX departed at 8:25pm, so I certainly did get a chance to catch some sleep and have to say that I’ve slept as good as I ever had on a long-haul flight.  It is certainly a comfortable space.

Unfortunately, however, the service was less than first-class.  I found the food to be mediocre, at best, the selection to be limited and the preparation to be less-than-spectacular.  Don’t get me wrong, the quality of food beats anything in Economy any day, but for a $12,000 ticket, I typically expect more.  The service include:

…a sloppily presented tomato soup:

An overcooked steak:

A miniature appetizer:

A poorly-presented and tasteless pasta:

Again – I’m not expecting Michelin three star-quality food, but, at a minimum, you would think that United’s First Class service would match Continental’s BusinessFirst Serve, which is a pure business-class product.  Excellent First Class seat aside, it does not.  In fact, I find that Continental’s transcontinental domestic first class service often provides better meals.

Flight crew service on the trip was friendly and just attentive enough.  I didn’t see them much at all after dinner, but they were there in an instant when I needed something.

Upon arrival at LAX, I was greeted with further disappointment:  While United does maintain a very comfortable dedicated First Class Lounge, there are no showers in any United Club facilities.  Thankfully, however, the First Class Lounge offered a variety of food, beverages and super-friendly staff.

The Quick Conclusion

All in all, the flight was comfortable and it got me across the Pacific without much incident. But the large seat aside, I find it difficult to pay the premium for United’s First Class versus, say, Continental’s BusinessFirst service.  I have subsequently encountered several times where seats on the direct PVG-EWR Continental route had no BusinessFirst availability and, instead of choosing United First Class, chose to add another few hours to my trip by flying Emirates back home via Dubai.

October 1 is the day that China celebrates the formation of the People’s Republic of China, dating back to 1949.   It is also the start of one of two Golden Weeks in the PRC, marking a week of vacation for Chinese nationals.   On National Day, thousands of Chinese flock to Beijing, Forbidden City and Tiananmen Squire, happily posing for photos, waving Chinese flags and celebrating amongst the red lantern-decorated public spaces.

More photos can be seen in my Flickr photo set.

There’s something that I didn’t realize until I was just a few minutes away from arriving at Kapama Karula:  it would really be the place where I would stay for the next five days – as in there, literally, wouldn’t be anywhere else for me go to in the five days that I would be at the Kapama Private Game Reserve in northwestern South Africa.   The hotel is located a 20 minute drive from the gates of the reserve and, once your in, you won’t be going anywhere without being escorted by a shotgun-wielding escort.   This makes skipping out to the local pub or corner store a bit difficult.

Luckily this luxury “camp” is first class all the way.  And while there are several other lodges located within the Kapama Reserve, this is the most private and exclusive.  At the time that I was there, the entire facility consisted of only seven tents.  They have since added five luxury suites.  This means that you will get to know your campmates and staff quite well, since you’ll be spending 6 hours on safari with them each day, in addition to one communal dinner each evening.  This, however, makes for a very interesting time, as South Africa tends to attract people from every other corner of the earth.

The private tents are climate controlled and include king-size beds, dual vanaties, soaking tubs and a beautiful outdoor shower (which might welcome from monkey visitors from time to time).    Located on the banks of the Klaserie River, you can sometimes hear the roar of male lions at night and witness a variety of different game come very close to the edge of the camp.

(You can click on any photo to see a larger version on Flickr)

The common facilities are equally as beautiful, including a beautiful dining room, several sitting areas, a wonderful bar and and lap pool.

All in all, the Kapama Karula experience is the first class all the way.  The food is superb and abundant, the staff is friendly and the game reserve, itself, is filled withe everything you’d expect to see in a top-notch South African game reserve.

As mid-season rates approach 6000 ZAR per double room per night (as of this writing, about US$740/nt, before tax and gratuity), it may not exactly be roughing it in the bush, but it’s certainly worth every penny.

A full set of photos from my Kapama experience can be viewed in my Flickr photo set.

If you are not familiar with TAM, it is Brazil and Latin America’s largest airline, headquartered in Sao Paulo and linking Brazil to about 70 international and domestic destinations.  The JFK-GRU flights are run on Airbus A330s using a 3 cabin (First/Business/Economy) configuration.  The flying time in both directions is just less than ten hours, which is offered as a morning departure from JFK (arriving at 10:30pm in GRU), as well as an a evening overnight flight (arriving in GRU at 6:40am).  The return from GRU to JFK departs at either 8:45am or 10:30pm.  So, on either leg, you have your choice of spending the day on the plane or sleeping overnight.  Given Sao Paulo’s advantage of being only an hour ahead of NYC, the overnight flight is quite handy when you’re doing business, as you can sacrifice little personal time in the air, while arriving in Sao Paulo or NYC fresh and without the slightest bit of jetlag.

Now, onto the flight experience…

The first thing I must stress is that TAM’s emphasis is on the highest quality of service for it’s First Class passengers.  In fact, I would say that the level of personal service rivals any of the other carries that I have flows – and I should note that I’ve flown First Class suites for, both, Emirates and Singapore Airlines, which are among the best.

The only real complaint I have starts at the beginning of my journey, when I was picked up by TAM’s complimentary chauffeured limo service.  It appears that TAM outsources their limo service in NYC to a Portuguese or Brazilian-owned car service, which resulted in a voice mail being left for me in Portuguese on the day prior to the flight.   I guess, with a last name like “Uriarte”, they may have assumed that I could speak Portuguese, but that certainly isn’t the case. This resulted in me having to call the car service three times before finally speaking to someone who could confirm my pickup time. In the future, the airline should try to inform the car service of the nationality of the passenger to avoid such hassles.  It’s a minor detail, but it would save some trouble.  Nonetheless, the car was on time and I was whisked off to the airport – or so I thought.  As my car reached the Holland Tunnel, the driver fell into queue with the massive line of cars that were waiting to pay to the toll, while every other black car and limo flew threw the toll using the EZ-Pass automated toll system that most of us who live and work in the area rely heavily on.  I confirmed with the driver that the limo company does NOT use EZ-Pass and we would have to wait in the cash lines to pay, which took approximately 20 minutes.  This was particularly annoying and a wast of my time.   TAM passengers who are going to JFK over any river crossing that requires a toll should keep this in mind.

Upon arriving at JFK, I was greeted directly at the curb by a TAM representative, which was a nice touch.  They immediately took my passport and luggage at the curb and brought me to their dedicated First Class checkin desk.  The checkin from curb to printing of the boarding pass took less than five minutes.  The gentleman who met me at my car then escorted me through the terminal to the Virgin Atlantic Clubhouse, which is TAM’s partner airline lounge at JFK.   He told me that he would return 40 minutes prior to departure to escort me through security.  (I won’t review the Virgin Atlantic Clubhouse at JFK – there are plenty of reviews out there.  Overall, however, it’s an enjoyable full-service lounge with full meals and showers for those who need it.)  Forty minutes before the flight was to depart, the TAM representative returned to retrieve myself and two other First Class passengers.  He proceeded to escort us through Fast Pass security (no waiting in line required) and then directly to the gate.  At the gate, we waited briefly, and then were escorted onto the plane about ten minutes prior to all other passengers – even pre-boarding and Business Class passengers.  All in all, this level of personal attention was tremendous and made the pre-flight experience completely stress free.

On board, the First Class cabin is one of the smallest sized premium cabins that I’ve flown in, with just four First Class “suites’ in a 1-2-1 configuration.   You can see a the full views of the cabin from front to back and side to side here:

The seats themselves are extremely wide and comfortable and I don’t believe my iPhone photos do them justice.   For a 6 foot, 3 inch-tall, 225 pound guy like me, with extra-broad shoulders, I’ve even been cramped in some of the largest First and Business Class seats.  This wasn’t the case with the TAM First Class product.   Both length and width are very generous and I had not felt cramped at anytime during both of my overnight flights.   As you can see, the seat offers lots of room to relax:

The newest versions of the suite are outfitted with a massive 27-inch LCD television:

The IFE system is filled with a variety of American, Brazilian and Portuguese entertainment.  Honestly, I was a bit disappointed with the variety of American programs, but a 10-hour overnight flight meant that I wasn’t going to be watching many movies, anyway.   The seat offeres several multi-national power ports (no international or EmPower adapter required), as well as USB charging ports for your phones and iPods.  Overall, stowage at the actual seat is surprisingly limited, particularly compared with other First Class products, but I didn’t find this to be too big of a deal.

The seat reclines into a full lie-flat bed, which has a custom-fitted sheet, comfortable duvet and two pillows (yes, TWO – I don’t think I’ve seen this before and I quite welcome it!).  The flight attendants happily and quickly make your bed in just a minute or two while you are off changing into your TAM-provided pajamas.  Cabin lighting uses warm, colorful LED lights, which is wonderfully relaxing.  In addition, an amenity kit is given, although in quite a different fashion then I’ve ever seen in the past:  The cabin crew comes to your seat with an “amenity trolley”, which allows you to choose exactly what you’d like in your kit.  At first, I was surprised at the cheap-looking zip-up pastic pouches that were provided as part of the kit, particularly given some of the lavish kits that I’ve seen from other carriers (such as Emirate’s First Class leather dopp kit).  However, I later realized that the bags were TSA-approved toiletry bags, which could be re-used for future flights.  This was quite a nice and practical touch, particularly for frequent travelers, like myself.

The service portion of the flight was excellent, particularly as there are two crew members dedicated to the cabin (2:1 passenger-to-cabin crew ratio!).   There are few nice touches and some nice attention to detail.  To begin, they provide pre-flight fresh food as you are sipping your cocktail and waiting to take off:

This is quite a nice change to the typical warm nuts.  They also feature some really nice, unique cups and stemware, as well as premium cocktails and champagnes prior to liftoff:

In addition, the china and cutlery that is used is full size, just like you’d use at home.   I am often amazed at the miniature-sized plates that are used by most airlines, where food is crammed onto the plate, overflowing onto your tray every time you try to cut your chicken with your miniature knife and fork.  That’s not the case here.

The menu that is provided has a number of great choices and the physical menu itself is a beautifully-printed book, which is more along the lines of an in-flight magazine.  The wine selection is varied and top-notch, feature wines from Portugal, United States, France and Australia:

This evening’s dinner selection:

The food itself was well-prepared and was reasonable in size – just enough for what I needed before retiring on my overnight flight:

Upon arrival in GRU, our flight was positioned away from the terminal, which meant that we would need to take a bus to the terminal – always my worst nightmare after arriving from a long, overnight flight!   However, to my surprise, First Class passengers where whisked off the plane with a local representative and escorted to a private van.  The van took us to a door that led directly to passport control.  I left the van and was successfully through passport control in a matter of thirty seconds – probably minutes before the bus containing the rest of our fellow passengers even left the tarmac!   Again, this is a level of service that is, indeed, top-notch.

On the Return Flight:  GRU to JFK

My return flight departed Sao Paulo at around 10:30pm, but I arrived at the airport at 6:30 due my meeting ending a bit early.  I had been up at 5am that morning and was quite exhausted, so I was really looking forward to getting to the lounge as soon as possible, changing out of my suit and taking a shower before departing.  I checked into TAM’s dedicated First Class checkin area, which, again, only took two minutes before I was on my way to security.  I inquired about shower facilities to the lady at the checkin counter and she confirmed that there were showers in the dedicated First Class lounge.   After passing through security, I made my way to the lounge and was greeted by a representative who knew that I wanted a shower  (the check-in representative downstairs had called ahead and notified her).   The lounge rep also asked if I preferred to board the flight prior to everyone else boarding, or last minute, right before takeoff (I chose the former – another nice touch on TAM’s part).   The shower was excellent, although the shower room was quite cramped, particularly since I was opening my suitcase.   The First Class loung itself was small, but had more than enough room for the passengers that were there.  There was a selection of light bites and ultra-premium liquors (Jonny Walker Blue, Chivas 18, etc.).

Unfortunately, at a time when I was quite exhausted, there weren’t really any truly comfortable seats to lounge in – they should really re-evaluate the seating in that facility.  Nonetheless, a quick cat nap and we were ready to go.    A representative came to find me and escorted me to the gate and, again, allowed me to board ahead of any other passengers.

The return flight itself was pretty much the same as the inbound flight – comfortable and smooth.  However, I was surprised to see that I was apparently on an older A330, as it had a significantly smaller television:

This was a bit comical, given that the First Class suite is so large that it makes you fee like you are miles away from the screen.  Otherwise, the seat and all other aspects of the hard product were exactly the same.   Thankfully, I was about to go right to sleep, so I didn’t need to use the screen at all, but I’d suspect that it’s a real eye strainer if you’re stuck watching it on a 10-hour flight.  TAM should really look into retrofitting the 27-inch LCD on all of their aircraft.

Side note:  You can see just how big the seat is.  In the above photo, I am comfortably stretched-out with plenty of room to spare.  Remember:  I’m 6 feet, 3 inches tall…

Upon arriving at JFK, First Class passengers were allowed to exit the plane first.  As a bit of a game, I looked at my watch and started timing how quickly I could be off the plan and into my TAM-provided chauffeured car, particularly since I didn’t have any checked luggage  (I am also enrolled in the US State Department’s Global Entry program so I do not have to wait in line at passport control. Instead, I scan my passport at a kiosk and just go.).  As suspected, I was out of customs in record speed – just 5 minutes from jetway to the main terminal!  I figured that I’d be ready to head home, until I hit another snag with the same TAM-contracted car service that brought me to the airport:   When I left customs, my driver was still 20 minutes away.  I had asked one of the other drivers to call the car service office for me and he explained that they were not expecting our flight to come in 15 minutes early, so the driver was running behind.   This, of course, was infuriating, particularly after an overnight flight.  One would suspect that the airline-provided car service would be checking arrival times more carefully.  So there I sat, next to my bag, waiting 20 minutes for my car to arrive.  So much for being the first passenger off the plane!

Summary

All in all, I find the TAM’s First Class service to be excellent and I would, without a doubt, choose to fly it again.   The quality of their hard product is very good.  While it may not be at the super-luxury level of Emirate’s First Class Suite or Singapore Airlines A380 suites, the seat offers generous space and is extremely comfortable.   The 27-inch LCD screen – should you not be stuck on an older plane! – is gorgeous.  Most importantly, a big guy like myself can get a great night’s sleep in these seats.

While flying to Sao Paulo, you will probably find better wine and, maybe, a bit better food in Lufthansa, Emirates and Singapore’s first class services, but the service aspect of the TAM experience is best-in-the-industry.  Every detail is taken to ensure warm and attentive personal service.  TAM makes you feel like a VIP and takes all the stress out of pre-boarding and post-flight activities.  The staff is friendly, polished and knows how to handle just about any customer request – kudos to TAM and whatever training programs they have in place.  The combination of good training, coupled with the overall warm and welcoming Brazilian attitude really makes you feel special.

Now if they can only work out the issues with their chauffeured car service…  :)

The area was once controlled by the French, as the name implies, and has remained largely unchanged in the decades since it was turned over to the Chinese government.  Through the years, it has served as a hub for people of many national origins, including French, British, American and Russian and also served as the center for Catholic activity in Shanghai.    Seemingly unlike the rest of the city, the government has imposed numerous development restrictions on the area in order to maintain it’s uniqueness and character.

In the rain, the crowds are scant and the area is still very much enjoyable.  Some of the shops occupy the entire ground floors of buildings, while others are slightly bigger than a few large closets’ worth of space.  At night, you can find a number of interesting bars and restaurants ranging from local haunts to expat hangouts.

In an area that is meant for strolling, the rain can be an annoyance but, in this case, I think it just adds to the character of the neighborhood.

I won’t ignore it – there is an ugly historical backdrop to most of what you see here, as well as throughout most of South Africa. I highly recommend that everyone takes at least a day with someone knowledgeable to learn about the good and the bad (hint: try Rob at Cape Convoy Tours).  Nonetheless, the modern Cape should be put on every traveler’s list.

Photos featuring:  Cape Coast nearing Cape of Good Hope,  Cape of Good Hope, Boulders Beach, Jackass Penguins at Boulders Beach, Views of City Bowl from Table Mountain, Robben Island Prison, Views of Table Mountain.

There are many more photos available in my Flickr set on Cape Town.

You certainly can’t disagree with the people who call him an innovator, a genius, a modern-day Thomas Edison and everything in between.

But he was also, without a doubt, the greatest salesman of our time.  Somehow he convinced close to 100 million people to buy a product that none of them needed and most of them couldn’t afford:

I still get excited when I watch that video.

Thanks, Steve.

Some of you may recall my detailed write-up on one of the most influential intellectual property cases in recent history, referred to as In re Bilski.  Back in October 2008, I wrote about the US Federal Court’s then-recent decision on Bilski and the potential impact it would have to business method patents, particularly in the technology and software arena (See my blog entry:  Bilski from a Non-Lawyer: The Federal Court’s Decision on Bilski and Business Method Patents for full details).

At the heart of Bilsky was the Federal Court’s decision to impose more stringent criteria when evaluating a business method for patentability  (See the Wall Street Journal article on October 31, 2008: Court Narrows Definition of Patent Process – A Tougher Test for Protecting Business Methods; Risk-Hedging Strategies Need Not Apply [paywall] or the Businessweek article: Federal Court Rules in Bilski Business Method Patent Case).   In the October 2008 Bilski ruling, the court says:

The Supreme Court…has enunciated a definitive test to determine whether a process claim is tailored narrowly enough to encompass only a particular application of a fundamental principle rather than to pre-empt the principle itself. A claimed process is surely patent-eligible under § 101 if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.

The stressed, latter part of the excerpt above is really what sets the stage for a stricter business method criteria.  I won’t get into the deep analysis here – you can read my previous blog entry or the thousands of pages of commentary that have been written about this – but what this essentially says is that you can’t invent a simple process in your head, put it on paper and patent it.   In 2008, I quoted the Patent Law Blog, who explained this well:

To be clear, the machine-or-transformation test is not a physicality test – i.e., a claim can still be patentable even if it does not recite sufficient “physical steps.” Here, the court spelled out the specific issue in mind: a claimed process where every step may be performed entirely in the human mind. In that situation, the machine-or-transformation test would lead to unpatentability. “Of course, a claimed process wherein all of the process steps may be performed entirely in the human mind is obviously not tied to any machine and does not transform any article into a different state or thing. As a result, it would not be patent-eligible under § 101.” On the flip-side, “a claim that recites ‘physical steps’ but neither recites a particular machine or apparatus, nor transforms any article into a different state or thing, is not drawn to patent-eligible subject matter.”

Along this line, the court also dispelled two rising concerns, noting that (1) neither novelty nor obviousness have any relevance to the section 101 inquiry, and (2) the fact that an individual claim element is – standing alone – patent eligible does not render the claim unpatentable because patent eligibility is considered while examining the claim as a whole.

So why did I care about this?

Well, if you’ve read me previous writings on this topic or know a little bit about me, you’d know that I served as the Chief Technology Officer of Retail Decisions for over ten years.   At Retail Decisions (ReD), I led a team that developed a number of industry-leading credit card and payments fraud detection technologies that became the cornerstone for fraud detection for many of the largest retailers, banks and telecommunications companies in the world, including WalMart, Sears, Kmart, Macy’s, Nordstrom, AT&T, Kohls and a large number of their international counterparts.   The service is called RedShield and, in aggregate, ReD’s fraud prevention systems saw over 19 billion of the world’s 190 billion payment card transactions in 2010.  The RedShield platform could essentially be considered my “life’s work”, if I ever had one, and I was referred to, by some, as “The Father of RedShield”, even though there were a large team of great people who actually created and evolved the system over the years.  (RedShield and Retail Decisions are both still going strong, however, I left the company to join American Express in 2011).

In 2004, Cybersource Corporation (now owned by Visa, Inc.), filed claim against Retail Decisions, stating that ReDShield infringed on their patent no. 6,029,154, which, essentially, sent much of my professional life into a whirlwind over the course of many years. Defending your own invention, hard work and livelihood via the route of the US patent system and federal courts can simply suck the life out of you and I do not wish this on anyone. This was particularly frustrating given that the ’154 patent is a poster child for the thousands of weak, “soft patents” that have been granted over the years (I’m looking at you, Amazon 1-Click Checkout).  There was nothing novel about it, it was peppered with prior art and the techniques described in the patent went into absolutely zero detail about how the invention was actually used to detect or prevent payments fraud.  But the one to blame for even allowing this suit to be born, however, is the US Patent and Trademark Office.

Bottom line:  This joke of a patent should never have been granted, period.

But little did I suspect that the path to defending this patent would take over seven years…

Fast forward to March 2009:  After years of preparation, the case finally made it to the courts and, thankfully for us, it was Bilski that drove the initial judgement in our favor.  It’s easiest to just quote the March 24, 2009 edition of Intellectual Property Today:

Chief Judge Marilyn Patel ruled from the bench that all asserted claims from CyberSource’s U.S. Patent No. 6,029,154 are invalid based on the patentability standard articulated in In re Bilski. The patent relates to processes for detecting fraud in credit card transactions. CyberSource had alleged that the innovative ReD Shield and ebitGuard fraud detection products offered by Retail Decisions infringed several claims from the ‘154 patent. The ruling represents a victory for Retail Decisions in a case originally filed in August 2004.

According to Judge Patel, CyberSource’s patent did not satisfy either prong of the “machine-or-transformation” test In Bilski, and the patent was completely lacking innovation. “The court’s ruling is very important.” said Carl Clump, Chief Executive Officer of ReD. “The court’s decision demonstrates that ReD has always acted fairly and responsibly. We are disappointed that this case had to go to court to demonstrate this.”

“This is a significant result for Retail Decisions, and it should have a positive impact on consumers and merchants across a variety of industries,” said Scott Bornstein, Co-Chair of the Patent Litigation Group at Greenberg Traurig and lead counsel for Retail Decisions. The Greenberg Traurig Litigation team also included Allan Kassenoff, a shareholder in the New York office and Jim Soong, a shareholder in the Silicon Valley office. James Myers from Ropes and Gray also assisted in the case.

This was of course, excellent news and, at the time, was somewhat of a landmark decisions as it was one of the first cases won using the “machine-or-transformation” criteria set forth in the Bilski decision.  As time passed, a number of similar decisions were handed down from courts around country.

Celebration was relatively short-lived, however.  The impact of Bilski was starting to become widespread and, in 2010, the Supreme Court decided to take on the Bilski issues by hearing Bilski vs. Kappos (130 S. Ct. 3218, 561 US __, 177 L. Ed. 2d 792 (2010)), which was ultimately decided on June 28, 2010.    In this case, the Supreme Court affirmed the judgement of the lower court but revised several important aspects of their decision.  The most important revision was related to the good ol’ machine-or-transformation criteria, where it was held that this criteria should not be the only test used for determining patent eligibility, but should only be used as a useful tool in that determination:

The machine-or-transformation test is not the sole test for determining the patent eligibility of a process, but rather a useful tool. Bilski’s application, seeking a patent on a method for hedging risk in the commodities market, did not draw to patent eligible subject matter. Affirmed.

This was, of course, important in that many cases had recently been decided by examining this key machine-or-transformation criteria, including “my” case, Cybersource Corporation vs. Retail Decisions, Inc.  As a result of this, Cybersource filed appeal on the original federal court ruling, since the machine-or-transformation issue was at its heart.  In other words, it was time to go back to court…

It took more than another year, but the ultimate decision from the federal court of appeals also ruled in Retail Decision’s favor.  The courts finding will, undoubtedly, have major implications in the granting of new business method patents and I am sure there are a number of attorneys filing briefs  at this very moment attempting to overturn patents using this case’s outcome as the basis to their arguments.

So what did the court find?

First, the court looked at Claim 3 of the ’156 patent and ruled that it did not meet the machine-or-transformation test.  However, it did not stop there.  As I wrote earlier, the Supreme court ruling says that failing to meet the machine-or-transformation test should not, in and of itself, disqualify an invention’s eligibility for patent. However, in this case, the court added that the claim “is drawn to an unpatentable mental process – a subcategory of unpatentable abstract ideas…All of claim 3’s method steps could be performed in the human mind, or by a human using a pen and paper.”  In other words, the claim was too simplistic and you could easily execute it without much computation beyond pen and paper.  In my words, the claim was simple and obvious, which I had held all along.

Second, the court then examined Clam 2, which essentially described another simple “pen and paper” process and ruled that executing this simple mental process on a computer medium does not make it patentable. Per the opinion: “”[M]erely claiming a software implementation of a purely mental process that could otherwise be performed without the use of a computer does not satisfy the machine prong of the machine-or-transformation test….”. These types of claims tied to computer-readable medium are often known as Beauregard claims.  This is essentially saying that if the underlying software method is not patentable, then the so-called Beaurgard claim is also not patentable.

So what does all of this mean?   Well, from what I read, the consensus seems to be that this ruling doesn’t necessarily invalidate patents that make Beaurgard claims, but it certainly opens them up to greater scrutiny.   And how widely used are such claims, anyway?   Well, Sunlight Research did a cursory analysis, looking at the existing patent portfolio of a few large organizations:

I have checked the portfolios of Motorola, InterDigital, Nortel and Kodak for claims directed to “computer readable medium” and have the following results to report:

Portfolio, No. of Patents/Apps with Beauregard Claims
Motorola 279
Nortel 584
Kodak 115
InterDigital 4

This data does not mean that all of these patents have invalid claims. However, the patents should be checked to identify the extent of the damage. If anyone in the group would like to have one or more lists of patents/apps, let me know…

The most surprising results are the large number of Beauregard claims in the Kodak portfolio. These are the image capture claims, regarded as the patents in that portfolio that have value.

To the common software developer, however, I think I shall stick to my assessment of the initial Bilski ruling, back in October 2008:

From an inventor’s standpoint, business method patents are good.  They allow me to protect my intellectual property and secure an exclusive place in the market for my technology.  The patentability of these business methods, however, can work against you, as well.

Take the Amazon case, for example.  I am one of those in the camp that truly believes that Amazon’s one-click checkout was not novel, fairly obvious and should not have been patentable.  As a result of this patent, competitors are now barred from using such a feature on their own website, despite the fact that there really isn’t anything too innovative about it.  These so-called, low-quality “soft patents” can truly stifle innovation by limiting the tools, techniques and features that technologists can keep in their arsenal.

I guess that if you’re inventing a lot of things, Bilski isn’t a good thing for you, since it may limit the scope of what you can protect.  For everyone else, Bilski just might stop you from infringing on something which might have been patentable prior to today’s ruling.

One thing I can guarantee is that this isn’t the final chapter.  But for me, and Cybersource vs. Retail Decisions, it’s nice to have some closure.

Note:  I’d usually link to a few article of interest, but there have been, literally, thousands of write-ups about this in the past week.  Search “Cybersource vs. Retail Decisions” for more details.

But the site is is comprised of two main thing:   thousands of superbly intact ancient ruins and – something you never see in the tourist photos – lots of people trying to sell you stuff.  Until March 2010, the land on which the ruins sit, was privately owned.   As a result, the owners attempted to squeeze every bit of use (e.g. revenue) out of it and allowed the most incredibly large group of locals vendors to occupy every available inch of land on the pathways throughout the site.   Tourists often complained about this and, my understanding is that the the state government has now “relocated” a number of the vendors.

Nonetheless, the structures themselves are incredible, both in stature, preservation and in their amazing technical and archeological planning:

A full set of photos is available in my Flickr photo set.