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MELVIN L. DAVIS, JR. and J. REX DAVIS, Plaintiffs, v. DOROTHY C. DAVIS and MKR DEVELOPMENT, LLC, a Virginia Limited Liability Company, Defendants.
Williams Mullen, by Camden R. Webb and Elizabeth C. Stone, for the Plaintiffs-Appellants. Vandeventer Black LLP, by Ashley P. Holmes and Norman W. Shearin, and LeClairRyan, by Thomas M. Wolf and Gretchen C. Byrd, for Defendant-Appellee.
This matter involves a family dispute over a beach property in Dare County (the “Property”). Defendant Dorothy C. Davis owns a life estate in the Property. The remainder interest is held by nominal Defendant MKR Development, LLC (the “LLC”), a limited liability company owned by and benefitting three of Mrs. Davis's children – Kaye Davis and Plaintiffs Melvin L. Davis, Jr., (“Mel”) and J. Rex Davis (“Rex”). Plaintiffs commenced this suit to enjoin Mrs. Davis from renting the Property during her lifetime to vacationers, contending that certain language in the deed conveying Mrs. Davis her life estate interest (the “Deed”) restricts her from renting out the Property.
This matter was designated a mandatory complex business case by Chief Justice of our Supreme Court Mark D. Martin and assigned to Judge Gregory P. McGuire, a Special Superior Court Judge for Complex Business Cases.
The parties filed cross motions for summary judgment. Judge McGuire granted Mrs. Davis summary judgment, holding that the restrictive language in the Deed - to the extent that it could be construed to restrict Mrs. Davis's ability to rent the Property - was void. We affirm Judge McGuire's order.
Sometime in the 1980s, Mrs. Davis and her husband (“Mr. Davis”) purchased the Property. In order to help pay for Property expenses, Mr. and Mrs. Davis occasionally rented the Property to vacationers through a real estate agency.
Notwithstanding this letter, Mrs. Davis entered into an agreement with a real estate agency in 2013 to rent the Property to vacationers, just as she and her husband had done in years past.
In July 2013, Plaintiffs filed this declaratory judgment action to enjoin their mother from renting the Property without the express permission of the LLC.
In May 2015, both parties filed summary judgment motions. Judge McGuire granted Mrs. Davis's summary judgment motion. Plaintiffs timely appealed.
The Grantors [Mr. and Mrs. Davis] hereby reserve unto themselves, a life estate in the Property, said life estate to be personal to the use of the Grantors, or the survivor thereof, and may not be utilized by any other person, nor may it be reduced to a cash value for the benefit of the Grantors, or the survivor thereof, but must remain always during the lifetime of said Grantors, or the survivor thereof, available for their individual and personal use without interference from either the remaindermen or any other person.
We disagree. We hold that the Deed language creates an unreasonable restraint on the alienation of Mrs. Davis's life estate and is therefore void. Accordingly, we affirm Judge McGuire's summary judgment order.
Restraints on alienation are generally disfavored in North Carolina due to the “necessity of maintaining a society controlled primarily by its living members and the desirability of facilitating the utilization of wealth.” Smith v. Mitchell, 301 N.C. 58, 62, 269 S.E.2d 608, 611 (1980). Nevertheless, it is fundamentally important that a property owner “should be able to convey [property] subject to whatever condition he or she may desire to impose on the conveyance.” Id.
To balance these competing policy interests, our Supreme Court has held that any unlimited restraint on alienation “is per se invalid.” Id. However, restrictions which “provide only that someone's estate may be forfeited or be terminated if he alienates, or that provides damages must be paid if he alienates, may be upheld if reasonable.” Id. (emphasis added). That is, our courts will generally uphold any reasonable restraints on alienation except unlimited restraints, which are per se unreasonable.
Our Supreme Court has applied this restraints doctrine to life estates. Lee v. Oates, 171 N.C. 717, 721, 88 S.E. 889, 891 (1916). (“[T]his Court has for many years consistently held that the doctrine as to restraints of alienation applies as well to estates for life as to estates in fee simple[.]”). See also Crockett v. First Fed. Sav. & Loan Assoc. of Charlotte, 289 N.C. 620, 624, 224 S.E.2d 580, 583 (1976) (reaffirming caselaw that applies restraints doctrine to life estates); Pilley v. Sullivan, 182 N.C. 493, 496, 109 S.E. 359, 360 (1921) (“The clause which purports to ingraft upon the devise an unlimited restraint on alienation is not only repugnant to the [life] estate devised, but is in contravention of public policy, and therefore void.”); Wool v. Fleetwood, 136 N.C. 460, 465-66, 48 S.E. 785, 787 (1904) (voiding a will provision prohibiting the life tenant from selling the life estate).
In the present case, Plaintiffs concede that the Deed creates an unlimited restraint on Mrs. Davis's ability to alienate her life estate. Indeed, as noted in the summary judgment order, “[P]laintiffs contend that not only is [Mrs. Davis] prohibited from selling the life estate, she cannot rent or even permit others to use the Property.” To justify this position, Plaintiffs aver that the caselaw prohibiting unlimited restraints does not apply as Mrs. Davis is both the grantor who created the restraint and the life tenant who is subject to the restraint. Plaintiffs contend that Lee is distinguishable as the restraint at issue attached to a conveyance between a grantor and a life tenant, whereas here, Mrs. Davis reserved a life estate for herself and therefore voluntarily restricted that interest.
We hold that whether the life estate was created by conveyance by a third party or by reservation by the life tenant herself is irrelevant. An unlimited restraint is against public policy; it makes no difference if the restraint is self-imposed. Plaintiffs have failed to cite precedent, either from North Carolina or from another jurisdiction, that would recognize this distinction. Indeed, the adverse party in Lee argued that the conveyance restraint should nonetheless be upheld as the life tenant herself signed the deed, “thereby agree[ing] ․ not to alien her estate[.]” Lee, 171 N.C. at 724, 88 S.E. at 892. Our Supreme Court, however, rejected this argument, holding that an otherwise invalid restraint on alienation is not validated merely because the life tenant assented to the restraint by signing the instrument: “[To conclude otherwise] would enforce a restriction by estoppel[,] which the law declares void. The covenant was a ‘dead letter’ when it was entered into, and we do not think it can be vitalized in this way.” Id. Based on our Supreme Court's reasoning in Lee, we conclude that the restraint on Mrs. Davis's ability to rent her Property is per se void even though Mrs. Davis was also the person who created the restraint. We therefore affirm Judge McGuire's order granting summary judgment to Mrs. Davis.
1. Judge McGuire's order contains a more comprehensive factual background and can be found at Davis v. Davis, No. 13 CVS 288, 2015 WL 6180969 (N.C. Super. Oct. 21, 2015).
2. Mr. and Mrs. Davis's other child Tommy had no role in LLC. In lieu of granting Tommy a position or interest in LLC, Mr. and Mrs. Davis instead paid off a debt secured by Tommy's home.
Judges BRYANT and STEPHENS concur.

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Remoteness of damage refers to the requirement that the damage as a consequence of a breach of duty must not be too remote from the initial act of negligence i.e. the damage arising from the risk involved in the negligent act must be foreseeable. There would be manifest injustice if a person were held responsible for all consequences of his act which in theory may be endless.
In Oversees Tankship v. Morts Dock & Engineering Co., Ltd., (also known as Wagon Mound No. 1) the defendants negligently caused oil to spill from the Wagon Mound into the port of Sydney. The oil spread to the Plaintiff’s wharf where another ship was undergoing welding operations for repair, in the course of which a drop of molten metal fell on the oil setting it on fire and thus destroying the wharf. The trial Judge observed that the destruction of the wharf by fire was a direct but unforeseeable consequence. Hence the defendant was not held liable.
Foreseeability is a precondition of a finding of negligence– a person cannot be liable of failing to take precautions against an unforeseeable risk. Foreseeability is relevant to answering the question of whether the reasonable person would have taken any precautions at all against the risk and, hence whether the defendant can reasonably be expected to have taken any precautions.
In Oehler v. Davis, a dog collar manufacturer sold a defective dog collar. The collar broke, allowing the dog to escape its owner and bite someone. The court decided that the plaintiff had no cause of action against the dog collar manufacturer, because the harm was too remote.
In Lewis v. Kehoe Academy, a day care center negligently allowed a child to consume poison. Relatives who had custody of the child lost custody because bruises formed by the poisoning were mistaken as marks of child abuse. The relatives sued the day care center alleging extreme mental anguish for the loss of companionship of the child. The relatives’ claim was dismissed as it was too remote.
In Hughes v. Lord Advocate, employees of the Post Office opened a manhole and left it unattended in the evening, covered by a canvas shelter and surrounded by paraffin lamps. The claimant, an eight year old boy, took one of the lamps into the shelter and was playing with it when he stumbled and it fell into the manhole. There was a violent explosion due to which the claimant himself fell into the manhole and sustained severe burn injuries. It was unforeseeable that the lamp would explode, but the Post Office men were in breach of duty because they left the manhole unattended and did not consider that little boys might play with the lamps and sustain burns. Hence the defendants were held liable.
Foreseeability is a relative, not an absolute, concept. The test of foreseeability is satisfied if the damage suffered is similar in kind though different in degree and that the precise sequence of events or extent of the damage need not be foreseeable: but if the damage suffered is altogether different in kind, the test of foreseeability is not satisfied, and the plaintiff cannot recover.
(Dredger) v. Edison. C’s dredger, the Liesbosch, was sunk owing to the negligence of D. C’s poverty prevented them from buying a replacement immediately, and so, to fulfil an existing contract, they had to hire another dredger at a rather high rate. The House of Lords refused to award compensation to the claimant because the cost of hiring a replacement dredger was considerably higher than the additional cost of buying a dredger. The additional loss was held to result from an extraneous cause- the claimant’s poverty.
The House of Lords has reiterated that in order to determine the scope of defendant’s liability for the damages arising out of his act, it is necessary to understand the nature of the loss against which the legal rule in question is designed.
If there is mens rea on the part of the defendant or if he is an intentional tort- feasor, then no question of remoteness of damage arises out of the initial wrong. The liability of an intentional wrongdoer is not limited to the intended consequences and it will extend at least to such as are foreseeable. In Scott v. Shepherd, when the defendant threw a squib into the crowd and it ultimately falls on the plaintiff and puts out his eye, the defendant was held liable to the plaintiff, although it was not his intention to put out his eye. The law insists rightly that fools and mischievous persons must be liable for consequences which common sense would unhesitatingly attribute to their wrongdoing.
Extensive causal liability may also be achieved indirectly by the doctrine of transferred intent, which arose from the tort of battery. One of the first cases in which this doctrine was applied was Talmage v. Smith, where defendant was held liable when he intended to hit A with a stick but instead struck B. Foreseeability is not a factor limiting this doctrine. This can be seen in Lambert v. Brewster, wherein the defendant fought the plaintiff’s father, not knowing they were being watched by the plaintiff, who subsequently suffered a miscarriage. The defendant was held liable, since he intended to cause battery to a third party, but in the process created emotional disturbance to the plaintiff and thus bore extended liability of having caused a miscarriage.
Extensive liability can be traced back to the historical background of intentional torts. Originally penal in character, some part of their punitive nature survived the transformation into civil actions.
This principle embodies the statement that a defendant must take his victim as he finds him. It is no answer to the claim of the defendant that the plaintiff would have suffered less injury “if he had not unusually thin skull or an unusually weak heart.” In Smith v. Leech Brain & Co Ltd, where the negligence of the defendants caused a burn on a workman’s lip, which promoted cancer in the site of the burn resulting in his death, the defendants were held liable, because but for the burn, the cancer might never have developed, though there was a pre-malignant condition.
Generally, the defendant owes a duty to guard only those of ordinary strength and fortitude, and where he cannot see any foreseeability of injury, no duty is owed. For example, if nervous shock is not a foreseeable result of any action, then a person having a nervous shock will not get a remedy. But once the duty is owed the defendant must take his victim as he finds him, so that if more extensive damage occurs due to some pre-existing circumstances, the defendant is fully liable.
In Jenson v. Eveleth Taconite Co, the 8th U.S. Circuit Court of Appeals held that the doctrine of the Eggshell Skull will apply even if plaintiffs’ fragile emotional psyches makes them predisposed to greater psychological harm from sexual harassment. The defendant, a mining company, had claimed that the emotional depravity of multiple plaintiffs was a result of a pre- existing condition. The evidence did not support the allegation. Once the facts of the case were determined, the court held that the defendant had to take its victims as they are, even if they have eggshell psyches.
Damage suffered by the plaintiff after the chain of subsequent causes initiated by the wrongful act of the defendant gets broken is too remote and does not make the plaintiff entitled to an award of damages against the plaintiff. The chain of causation may break due to human conduct or natural event.
In Weld Blundell v. Stephens, the defendant had negligently leaked some documents to a third party, which contained libellous statements made by the claimant about the third party. The third party sued the claimant on libel and won. Later, the claimant sued the defendant, demanding recovery of damages. It was held that the claimant was not entitled to damages, because the libellous statements were intentional and had broken the chain of causation.
In Wieland v. Cyril Lord Carpets Ltd, the plaintiff injured her neck due to the negligence of the defendant and was forced to wear an orthopaedic collar. Due to the position of her neck in the collar, the plaintiff was unable to automatically adjust her vision to the bi-focal lenses that she had worn for 10 years. Shortly after the collar was fitted, the plaintiff fell down while descending the staircase and injured her ankles. The defendants were held liable for both the initial injury and the subsequent injury incurred in the fall. The decision is a clear example of the provision that since Wagon Mound No. 1, the novus actus interveniens is but an aspect of the general problem of remoteness of damage and will break the chain of causation only if it is not a reasonably foreseeable event.
The English Law of Tort, introduced in India as an instrument of justice and equity, was applied keeping in mind the special conditions of the cases in the country. Most judges have agreed with the test of foreseeability established by the Wagon Mound Case.
Casson, D.B., ‘Foreseeable Act as Novus Actus Interveniens’, The Modern Law Review, Vol. 33 (No. 4): pp.
Winfield & Jolowicz, Tort. London: Sweet & Maxwell, (2006).
Rowe, P.J., ‘The Demise of The Thin Skull Rule?’, The Modern Law Review, Vol 40 (No 4): 377-379.

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"[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. . . ."
The Patent and Trademark Office Board of Appeals agreed, but the Court of Customs and Patent Appeals reversed.
Held: Respondents' claims recited subject matter that was eligible for patent protection under § 101. Pp. 450 U. S. 181-193.
"an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as is a piece of machinery. . . . The machinery pointed out as suitable to perform the process may or may not be new or patentable."
Cochrane v. Deener, 94 U. S. 780, 94 U. S. 788. Industrial processes such as respondents' claims for transforming raw, uncured synthetic rubber into a different state or thing are the types which have historically been eligible to receive patent law protection. Pp. 450 U. S. 181-184.
(b) While a mathematical formula, like a law of nature, cannot be the subject of a patent, cf. Gottschalk v. Benson, 409 U. S. 63; Parker v.
Flook, 437 U. S. 54, respondents do not seek to patent a mathematical formula, but instead seek protection for a process of curing synthetic rubber. Although their process employs a well-known mathematical equation, they do not seek to preempt the use of that equation, except in conjunction with all of the other steps in their claimed process. A claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula, computer program, or digital computer. Respondents' claims must be considered as a whole, it being inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. The questions of whether a particular invention meets the "novelty" requirements of 35 U.S.C. § 102 or the "nonobviousness" requirements of § 103 do not affect the determination of whether the invention falls into a category of subject matter that is eligible for patent protection under § 101. Pp. 450 U. S. 185-191.
(c) When a claim containing a mathematical formula implements or applies the formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e.g., transforming or reducing an article to a different state or thing), then the claim satisfies § 101's requirements. Pp. 450 U. S. 191-193.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and POWELL, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 450 U. S. 193.
We granted certiorari to determine whether a process for curing synthetic rubber which includes in several of its steps the use of a mathematical formula and a programmed digital computer is patentable subject matter under 35 U.S.C. § 101.
Respondents characterize their contribution to the art to reside in the process of constantly measuring the actual temperature inside the mold. These temperature measurements are then automatically fed into a computer which repeatedly recalculates the cure time by use of the Arrhenius equation.
When the recalculated time equals the actual time that has elapsed since the press was closed, the computer signals a device to open the press. According to the respondents, the continuous measuring of the temperature inside the mold cavity, the feeding of this information to a digital computer which constantly recalculates the cure time, and the signaling by the computer to open the press are all new in the art.
press -- were "conventional and necessary to the process, and cannot be the basis of patentability." The examiner concluded that respondents' claims defined and sought protection of a computer program for operating a rubber-molding press.
The Patent and Trademark Office Board of Appeals agreed with the examiner, but the Court of Customs and Patent Appeals reversed. In re Diehr, 602 F.2d 892 (1979). The court noted that a claim drawn to subject matter otherwise statutory does not become nonstatutory because a computer is involved. The respondents' claims were not directed to a mathematical algorithm or an improved method of calculation, but rather recited an improved process for molding rubber articles by solving a practical problem which had arisen in the molding of rubber products.
The Commissioner of Patents and Trademarks sought certiorari, arguing that the decision of the Court of Customs and Patent Appeals was inconsistent with prior decisions of this Court. Because of the importance of the question presented, we granted the writ. 445 U.S. 926 (1980).
"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title. [Footnote 6] "
In cases of statutory construction, we begin with the language of the statute. Unless otherwise defined, "words will be interpreted as taking their ordinary, contemporary common meaning," Perrin v. United States, 444 U. S. 37, 444 U. S. 42 (1979), and, in dealing with the patent laws, we have more than once cautioned that "courts should not read into the patent laws limitations and conditions which the legislature has not expressed.'" Diamond v. Chakrabarty, supra, at 447 U. S. 308, quoting United States v. Dubilier Condenser Corp., 289 U. S. 178, 289 U. S. 199 (1933).
The Patent Act of 1793 defined statutory subject matter as "any new and useful art, machine, manufacture or composition of matter, or any new or useful improvement [thereof]." Act of Feb. 21, 1793, ch. 11, § 1, 1 Stat. 318. Not until the patent laws were recodified in 1952 did Congress replace the word "art" with the word "process." It is that latter word which we confront today, and, in order to determine its meaning, we may not be unmindful of the Committee Reports accompanying the 1952 Act which inform us that Congress intended statutory subject matter to "include anything under the sun that is made by man." S.Rep. No.1979, 82d Cong., 2d Sess., 5 (1952); H.R.Rep. No.1923, 82d Cong., 2d Sess., 6 (1952).
that certain things should be done with certain substances, and in a certain order; but the tools to be used in doing this may be of secondary consequence."
Cochrane v. Deener, 94 U. S. 780, 94 U. S. 787-788 (1877).
"Transformation and reduction of an article 'to a different state or thing' is the clue to the patentability of a process claim that does not include particular machines."
409 U.S. at 409 U. S. 70.
Our conclusion regarding respondents' claims is not altered by the fact that, in several steps of the process, a mathematical equation and a programmed digital computer are used. This Court has undoubtedly recognized limits to § 101, and every discovery is not embraced within the statutory terms. Excluded from such patent protection are laws of nature, natural phenomena, and abstract ideas. See Parker v. Flook, 437 U. S. 584 (1978); Gottschalk v. Benson, supra at 409 U. S. 67; Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 333 U. S. 130 (1948). "An idea of itself is not patentable," Rubber-Tip Pencil Co. v. Howard, 20 Wall. 498, 87 U. S. 507 (1874).
"A principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right."
"[A] new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter|"
"[A] new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc^2; nor could Newton have patented the law of gravity. Such discoveries are 'manifestations of . . . nature, free to all men and reserved exclusively to none.'"
Diamond v. Chakrabarty, 447 U.S. at 447 U. S. 309, quoting Funk Bros. Seed Co. v. Kalo Inoculant Co., supra at 333 U. S. 130.
"to contain any disclosure relating to the chemical processes at work, the monitoring of process variables, or the means of setting off an alarm or adjusting an alarm system. All that it provides is a formula for computing an updated alarm limit."
437 U.S. at 437 U. S. 586.
In contrast, the respondents here do not seek to patent a mathematical formula. Instead, they seek patent protection for a process of curing synthetic rubber. Their process admittedly employs a well-known mathematical equation, but they do not seek to preempt the use of that equation. Rather, they seek only to foreclose from others the use of that equation in conjunction with all of the other steps in their claimed process. These include installing rubber in a press, closing the mold, constantly determining the temperature of the mold, constantly recalculating the appropriate cure time through the use of the formula and a digital computer, and automatically opening the press at the proper time. Obviously, one does not need a "computer" to cure natural or synthetic rubber, but if the computer use incorporated in the process patent significantly lessens the possibility of "overcuring" or "undercuring," the process as a whole does not thereby become unpatentable subject matter.
"While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be."
We think this statement in Mackay takes us a long way toward the correct answer in this case. Arrhenius' equation is not patentable in isolation, but when a process for curing rubber is devised which incorporates in it a more efficient solution of the equation, that process is, at the very least, not barred at the threshold by § 101.
"Section 101 sets forth the subject matter that can be patented, 'subject to the conditions and requirements of this title.' The conditions under which a patent may be obtained follow, and Section 102 covers the conditions relating to novelty."
in effect, an amplification and definition of 'new' in section 101."
"The corresponding section of [the] existing statute is split into two sections, section 101 relating to the subject matter for which patents may be obtained, and section 102 defining statutory novelty and stating other conditions for patentability."
Id. at 17. See also H.R.Rep. No.1923, 82d Cong., 2d Sess., 6, 7, and 17 (1952).
In this case, it may later be determined that the respondents' process is not deserving of patent protection because it fails to satisfy the statutory conditions of novelty under § 102 or nonobviousness under § 103. A rejection on either of these grounds does not affect the determination that respondents' claims recited subject matter which was eligible for patent protection under § 101.
A "cure" is obtained by mixing curing agents into the uncured polymer in advance of molding, and then applying heat over a period of time. If the synthetic rubber is cured for the right length of time at the right temperature, it becomes a usable product.
During the time a press is open for loading, it will cool. The longer it is open, the cooler it becomes and the longer it takes to reheat the press to the desired temperature range. Thus, the time necessary to raise the mold temperature to curing temperature is an unpredictable variable. The respondents claim to have overcome this problem by continuously measuring the actual temperature in the closed press through the use of a thermocouple.
We note that the petitioner does not seriously contest the respondents' assertions regarding the inability of the industry to obtain accurate cures on a uniform basis. See Brief for Petitioner 3.
"1. A method of operating a rubber-molding press for precision molded compounds with the aid of a digital computer, comprising:"
"providing said computer with a database for said press, including at least,"
"natural logarithm conversion data (ln),"
"the activation energy constant (C) unique to each batch of said compound being molded, and"
"a constant (x) dependent upon the geometry of the particular mold of the press,"
"initiating an interval timer in said computer upon the closure of the press for monitoring the elapsed time of said closure,"
"constantly determining the temperature (Z) of the mold at a location closely adjacent to the mold cavity in the press during molding,"
"constantly providing the computer with the temperature (Z),"
"repetitively calculating in the computer, at frequent intervals during each cure, the Arrhenius equation for reaction time during the cure, which is"
"ln v = CZ + x"
"where v is the total required cure time,"
"repetitively comparing in the computer at said frequent intervals during the cure each said calculation of the total required cure time calculated with the Arrhenius equation and said elapsed time, and"
"opening the press automatically when a said comparison indicates equivalence."
"2. The method of claim 1 including measuring the activation energy constant for the compound being molded in the press with a rheometer and automatically updating said data base within the computer in the event of changes in the compound being molded in said press as measured by said rheometer."
"11. A method of manufacturing precision molded articles from selected synthetic rubber compounds in an openable rubber molding press having at least one heated precision mold, comprising:"
"(a) heating said mold to a temperature range approximating a predetermined rubber curing temperature,"
"(b) installing prepared unmolded synthetic rubber of a known compound in a molding cavity of predetermined geometry as defined by said mold,"
"(c) closing said press to mold said rubber to occupy said cavity in conformance with the contour of said mold and to cure said rubber by transfer of heat thereto from said mold,"
"(d) initiating an interval timer upon the closure of said press for monitoring the elapsed time of said closure,"
"(e) heating said mold during said closure to maintain the temperature thereof within said range approximating said rubber curing temperature,"
"(f) constantly determining the temperature of said mold at a location closely adjacent said cavity thereof throughout closure of said press,"
"(g) repetitively calculating at frequent periodic intervals throughout closure of said press the Arrhenius equation for reaction time of said rubber to determine total required cure time v as follows:"
"wherein c is an activation energy constant determined for said rubber being molded and cured in said press, z is the temperature of said mold at the time of each calculation of said Arrhenius equation, and x is a constant which is a function of said predetermined geometry of said mold,"
"(h) for each repetition of calculation of said Arrhenius equation herein, comparing the resultant calculated total required cure time with the monitored elapsed time measured by said interval timer,"
"(i) opening said press when a said comparison of calculated total required cure time and monitored elapsed time indicates equivalence, and"
"(j) removing from said mold the resultant precision molded and cured rubber article."
"The term 'process' means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."
"A process, eo nomine, is not made the subject of a patent in our act of congress. It is included under the general term 'useful art.' An art may require one or more processes or machines in order to produce a certain result or manufacture. The term machine includes every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result. But where the result or effect is produced by chemical action, by the operation or application of some element or power of nature, or of one substance to another, such modes, methods, or operations are called processes. A new process is usually the result of discovery; a machine, of invention. The arts of tanning, dyeing, making waterproof cloth, vulcanizing India rubber, smelting ores, and numerous others are usually carried on by processes, as distinguished from machines. One may discover a new and useful improvement in the process of tanning, dyeing, &c. irrespective of any particular form of machinery or mechanical device. And another may invent a labor-saving machine by which this operation or process may be performed, and each may be entitled to his patent. As, for instance, A has discovered that, by exposing India rubber to a certain degree of heat, in mixture or connection with certain metalic salts, he can produce a valuable product, or manufacture; he is entitled to a patent for his discovery, as a process or improvement in the art, irrespective of any machine or mechanical device. B, on the contrary, may invent a new furnace or stove, or steam apparatus, by which this process may be carried on with much saving of labor and expense of fuel, and he will be entitled to a patent for his machine as an improvement in the art. Yet A could not have a patent for a machine, or B for a process; but each would have a patent for the means or method of producing a certain result, or effect, and not for the result or effect produced. It is for the discovery or invention of some practical method or means of producing a beneficial result or effect that a patent is granted, and not for the result or effect itself. It is when the term process is used to represent the means or method of producing a result that it is patentable, and it will include all methods or means which are not effected by mechanism or mechanical combinations."
"That a patent can be granted for a process there can be no doubt. The patent law is not confined to new machines and new compositions of matter, but extends to any new and useful art or manufacture. A manufacturing process is clearly an art within the meaning of the law. Goodyear's patent was for a process, namely, the process of vulcanizing india rubber by subjecting it to a high degree of heat when mixed with sulphur and a mineral salt. The apparatus for performing the process was not patented, and was not material. The patent pointed out how the process could be effected, and that was deemed sufficient."
Id. at 102 U. S. 722.
"'1. A fixed step-by-step procedure for accomplishing a given result; usually a simplified procedure for solving a complex problem, also a full statement of a finite number of steps. 2. A defined process or set of rules that leads [sic] and assures development of a desired output from a given input. A sequence of formulas and/or algebraic/logical steps to calculate or determine a given task; processing rules.'"
Brief for Petitioner in Diamond v. Bradley, O.T. 1980, No. 79-855, p. 6, n. 12, quoting C. Sippl & R. Sippl, Computer Dictionary and Handbook 23 (2d ed.1972). This definition is significantly broader than the definition this Court employed in Benson and Flook. Our previous decisions regarding the patentability of "algorithms" are necessarily limited to the more narrow definition employed by the Court, and we do not pass judgment on whether processes falling outside the definition previously used by this Court, but within the definition offered by the petitioner, would be patentable subject matter.
As we explained in Flook, in order for an operator using the formula to calculate an updated alarm limit, the operator would need to know the original alarm base, the appropriate margin of safety, the time interval that should elapse between each updating, the current temperature (or other process variable), and the appropriate weighing factor to be used to average the alarm base and the current temperature. 437 U.S. at 437 U. S. 586. The patent application did not "explain how to select the approximate margin of safety, the weighing factor, or any of the other variables." Ibid.
"He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."
Although we were dealing with a "product" claim in Funk Bros., the same principle applies to a process claim. Gottschalk v. Benson, 409 U. S. 63, 409 U. S. 68 (1972).
It is argued that the procedure of dissecting a claim into old and new elements is mandated by our decision in Flook, which noted that a mathematical algorithm must be assumed to be within the "prior art." It is from this language that the petitioner premises his argument that, if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter. The fallacy in this argument is that we did not hold in Flook that the mathematical algorithm could not be considered at all when making the § 101 determination. To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable, because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious. The analysis suggested by the petitioner would also undermine our earlier decisions regarding the criteria to consider in determining the eligibility of a process for patent protection. See, e.g., Gottschalk v. Benson, supra; and Cochrane v. Deener, 94 U. S. 780 (1877).
"A person shall be entitled to a patent unless --"
"(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or"
"(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the date of the application for patent in the United States, or"
"(c) he has abandoned the invention, or"
"(d) the invention was first patented or caused to be patented, or was the subject of an inventor's certificate, by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application for patent or inventor's certificate filed more than twelve months before the filing of the application in the United States, or"
"(e) the invention was described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent, or on an international application by another who has fulfilled the requirements of paragraphs (1), (2), and (4) of section 371(c) of this title before the invention thereof by the applicant for patent, or"
"(f) he did not himself invent the subject matter sought to be patented, or"
"(g) before the applicant's invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it. In determining priority of invention there shall be considered not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one who was first to conceive and last to reduce to practice, from a time prior to conception by the other."
Arguably, the claims in Flook did more than present a mathematical formula. The claims also solved the calculation in order to produce a new number or "alarm limit" and then replaced the old number with the number newly produced. The claims covered all uses of the formula in processes "comprising the catalytic chemical conversion of hydrocarbons." There are numerous such processes in the petrochemical and oil refinery industries, and the claims therefore covered a broad range of potential uses. 437 U.S. at 437 U. S. 586. The claims, however, did not cover every conceivable application of the formula. We rejected in Flook the argument that, because all possible uses of the mathematical formula were not preempted, the claim should be eligible for patent protection. Our reasoning in Flook is in no way inconsistent with our reasoning here. A mathematical formula does not suddenly become patentable subject matter simply by having the applicant acquiesce to limiting the reach of the patent for the formula to a particular technological use. A mathematical formula, in the abstract, is nonstatutory subject matter regardless of whether the patent is intended to cover all uses of the formula or only limited uses. Similarly, a mathematical formula does not become patentable subject matter merely by including in the claim for the formula token post-solution activity such as the type claimed in Flook. We were careful to note in Flook that the patent application did not purport to explain how the variables used in the formula were to be selected, nor did the application contain any disclosure relating to chemical processes at work or the means of setting off an alarm or adjusting the alarm limit. Ibid. All the application provided was a "formula for computing an updated alarm limit." Ibid.
"The patents were warranted not by the novelty of their elements, but by the novelty of the combination they represented. Invention was recognized because Laitram's assignors combined ordinary elements in an extraordinary way -- a novel union of old means was designed to achieve new ends. Thus, for both inventions, 'the whole in some way exceed[ed] the sum of its parts.' Great A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U. S. 147, 340 U. S. 152 (1950)."
Id. at 406 U. S. 521-522 (footnote omitted).
In order for the dissent to reach its conclusion, it is necessary for it to read out of respondents' patent application all the steps in the claimed process which it determined were not novel or "inventive." That is not the purpose of the § 101 inquiry, and conflicts with the proposition, recited above, that a claimed invention may be entitled to patent protection even though some or all of its elements are not "novel."
to have discovered. The Court's decision in this case rests on a misreading of the Diehr and Lutton patent application. Moreover, the Court has compounded its error by ignoring the critical distinction between the character of the subject matter that the inventor claims to be novel -- the § 101 issue -- and the question whether that subject matter is in fact novel -- the § 102 issue.
Finally, the definition of "process" announced by this Court in Cochrane v. Deener, 94 U. S. 780, 94 U. S. 787-788 (1877), seemed to indicate that a patentable process must cause a physical transformation in the materials to which the process is applied. See ante at 450 U. S. 182-184.
that a programmed computer could be a component of a patentable process if combined with unobvious elements to produce a physical result. The Patent Office formally adopted the guidelines in 1968. See 33 Fed.Reg. 15609 (1968).
The new guidelines were to have a short life. Beginning with two decisions in 1968, a dramatic change in the law as understood by the Court of Customs and Patent Appeals took place. By repudiating the well-settled "function of a machine" and "mental steps" doctrines, that court reinterpreted § 101 of the Patent Code to enlarge drastically the categories of patentable subject matter. This reinterpretation would lead to the conclusion that computer programs were within the categories of inventions to which Congress intended to extend patent protection.
The Court of Customs and Patent Appeals soon replaced the overruled doctrines with more expansive principles formulated with computer technology in mind. In In re Bernhart, 57 C.C.P.A. (Pat.) 737, 417 F.2d 1395 (1969), the court reaffirmed Prater, and indicated that all that remained of the mental steps doctrine was a prohibition on the granting of a patent that would confer a monopoly on all uses of a scientific principle or mathematical equation. Id. at 743, 417 F.2d at 1399. The court also announced that a computer programmed with a new and unobvious program was physically different from the same computer without that program; the programmed computer was a new machine, or at least a new improvement over the unprogrammed computer. Id. at 744, 417 F.2d at 1400. Therefore, patent protection could be obtained for new computer programs if the patent claims were drafted in apparatus form.
after Prater and Bernhart. [Footnote 2/16] The "technological arts" standard was refined in In re Benson, 58 C.C.P.A. (Pat.) 1134, 441 F.2d 682 (1971), in which the court held that computers, regardless of the uses to which they are put, are within the technological arts for purposes of § 101. Id. at 1142, 441 F.2d at 688.
In re Benson, of course, was reversed by this Court in Gottschalk v. Benson, 409 U. S. 63 (1972). [Footnote 2/17] Justice Douglas' opinion for a unanimous Court made no reference to the lower court's rejection of the mental steps doctrine or to the new technological arts standard. [Footnote 2/18] Rather, the Court clearly held that new mathematical procedures that can be conducted in old computers, like mental processes and abstract intellectual concepts, see id. at 409 U. S. 67, are not patentable processes within the meaning of § 101.
The Court of Customs and Patent Appeals had its first opportunity to interpret Benson in In re Christensen, 478 F.2d 1392 (1973). In Christensen, the claimed invention was a method in which the only novel element was a mathematical formula. The court resurrected the "point of novelty" approach abandoned in Musgrave and held that a process claim in which the point of novelty was a mathematical equation to be solved as the final step of the process did not define patentable subject matter after Benson. 478 F.2d at 1394. Accordingly, the court affirmed the Patent Office Board of Appeals' rejection of the claims under § 101.
in In re Chatfield, 545 F.2d 152 (1976), cert. denied, 434 U.S. 875 (1977), decided on the same day as Noll. In that case, the court construed Benson to preclude the patenting of program inventions claimed as processes only where the claims would preempt all uses of an algorithm or mathematical formula. 545 F.2d at 156, 158-159. [Footnote 2/20] The dissenting judges argued, as they had in Noll, that Benson held that programs for general purpose digital computers are not patentable subject matter. 545 F.2d at 161.
Following Noll and Chatfield, the Court of Customs and Patent Appeals consistently interpreted Benson to preclude the patenting of a program-related process invention only when the claims, if allowed, would wholly preempt the algorithm itself. One of the cases adopting this view was In re Flook, 559 F.2d 21 (1977), [Footnote 2/21] which was reversed in Parker v. Flook, 437 U. S. 584 (1978). Before this Court decided Flook, however, the lower court developed a two-step procedure for analyzing program-related inventions in light of Benson. In In re Freeman, 573 F.2d 1237 (1978), the court held that such inventions must first be examined to determine whether a mathematical algorithm is directly or indirectly claimed; if an algorithm is recited, the court must then determine whether the claim would wholly preempt that algorithm. Only if a claim satisfied both inquiries was Benson considered applicable. 573 F.2d at 1245. See also In re Toma, 575 F.2d 872, 877 (CCPA 1978).
Flook as resting on nothing more than the way in which the patent claims had been drafted, and it expressly declined to use the method of claim analysis spelled out in that decision. The Court of Customs and Patent Appeals has taken the position that, if an application is drafted in a way that discloses an entire process as novel, it defines patentable subject matter even if the only novel element that the inventor claims to have discovered is a new computer program. [Footnote 2/24] The court interpreted Flook in this manner in its opinion in this case. See In re Diehr, 602 F.2d 982, 986-989 (1979). In my judgment, this reading of Flook -- although entirely consistent with the lower court's expansive approach to § 101 during the past 12 years -- trivializes the holding in Flook, the principle that underlies Benson, and the settled line of authority reviewed in those opinions.
As I stated at the outset, the starting point in the proper adjudication of patent litigation is an understanding of what the inventor claims to have discovered. Indeed, the outcome of such litigation is often determined by the judge's understanding of the patent application. This is such a case.
and Lutton, however, teaches nothing about the chemistry of the synthetic rubber curing process, nothing about the raw materials to be used in curing synthetic rubber, nothing about the equipment to be used in the process, and nothing about the significance or effect of any process variable such as temperature, curing time, particular compositions of material, or mold configurations. In short, Diehr and Lutton do not claim to have discovered anything new about the process for curing synthetic rubber.
improved method of calculating the time that the mold should remain closed during the curing process. [Footnote 2/27] If the Court's reading of the claims were correct, I would agree that they disclose patentable subject matter. On the other hand, if the Court accepted my reading, I feel confident that the case would be decided differently.
"the only difference between the conventional methods of operating a molding press and that claimed in [the] application rests in those steps of the claims which relate to the calculation incident to the solution of the mathematical problem or formula used to control the mold heater and the automatic opening of the press. [Footnote 2/29] This finding was not disturbed by the Court of Customs and Patent Appeals, and is clearly correct."
application suggest that Diehr and Lutton have discovered anything about the temperatures in the mold or the amount of curing time that will produce the best cure. What they claim to have discovered, in essence, is a method of updating the original estimated curing time by repetitively recalculating that time pursuant to a well-known mathematical formula in response to variations in temperature within the mold. Their method of updating the curing time calculation is strikingly reminiscent of the method of updating alarm limits that Dale Flook sought to patent.
Parker v. Flook, 437 U. S. 584 (1978), involved the use of a digital computer in connection with a catalytic conversion process. During the conversion process, variables such as temperature, pressure, and flow rates were constantly monitored and fed into the computer; in this case, temperature in the mold is the variable that is monitored and fed into the computer. In Flook, the digital computer repetitively recalculated the "alarm limit" -- a number that might signal the need to terminate or modify the catalytic conversion process; in this case, the digital computer repetitively recalculates the correct curing time -- a number that signals the time when the synthetic rubber molding press should open.
claim that anything constituting patentable subject matter has been discovered, there is no occasion to address the novelty issue. [Footnote 2/35] Or, as was true in Flook, if the only concept that the inventor claims to have discovered is not patentable subject matter, § 101 requires that the application be rejected without reaching any issue under § 102; for it is irrelevant that unpatentable subject matter -- in that case, a formula for updating alarm limits -- may in fact be novel.
Lutton claim to have developed a new method of programming a digital computer in order to calculate -- promptly and repeatedly -- the correct curing time in a familiar process. [Footnote 2/37] In the § 101 analysis, we must assume that the sequence of steps in this programming method is novel, unobvious, and useful. The threshold question of whether such a method is patentable subject matter remains.
Even the Court does not suggest that the computer program developed by Diehr and Lutton is a patentable discovery. Accordingly, if we treat the program as though it were a familiar part of the prior art -- as well established precedent requires [Footnote 2/41] -- it is absolutely clear that their application contains no claim of patentable invention. Their application was therefore properly rejected under § 101 by the Patent Office and the Board of Appeals.
Scholars have been critical of the work of both tribunals. Some of that criticism may stem from a conviction about the merits of the broad underlying policy question; such criticism may be put to one side. Other criticism, however, identifies two concerns to which federal judges have a duty to respond. First, the cases considering the patentability of program-related inventions do not establish rules that enable a conscientious patent lawyer to determine with a fair degree of accuracy which, if any, program-related inventions will be patentable. Second, the inclusion of the ambiguous concept of an "algorithm" within the "law of nature" category of unpatentable subject matter has given rise to the concern that almost any process might be so described, and therefore held unpatentable.
the invention claimed in the patent application at issue in this case makes no contribution to the art that is not entirely dependent upon the utilization of a computer in a familiar process, I would reverse the decision of the Court of Customs and Patent Appeals.
ENIAC, the first general purpose electronic digital computer, was built in 1946. Unlike modern computers, this machine was externally programmed; its circuitry had to be manually rewired each time it was used to perform a new task. See Gemignani, Legal Protection for Computer Software: The View From '79, 7 Rutgers J. Computers, Tech. & L. 269, 270 (1980). In 1952, a group of scientists at the Institute for Advanced Study completed MANIAC I, the first digital computer capable of operating upon stored programs, as opposed to hard-wired circuitry. See Ulam, Computers, 211 Scientific American 203 (1964).
The subject received some scholarly attention prior to 1964. See, e.g., Seidel, Antitrust Patent and Copyright Law Implications of Computer Technology, 44 J.Pat.Off.Soc. 116 (1962); Comment, The Patentability of Computer Programs, 38 N.Y.U.L.Rev. 891 (1963). In 1964, the Copyright Office began registering computer programs. See 11 Copyright Soc.Bull. 361 (1964); Davis, Computer Programs and Subject Matter Patentability, 6 Rutgers J.Computers, Tech. & L.J., 5 (1977). Also in 1964, the Patent Office Board of Appeals issued what appears to be the first published opinion concerning the patentability of a computer-related invention. See Ex parte King, 146 USPQ 590.
In re Prater, 56 C.C.P.A. (Pat.) 1360, 415 F.2d 1378 (1968), modified on rehearing, 56 C.C.P.A. (Pat.) 1381, 415 F.2d 1393 (1969), is generally identified as the first significant judicial decision to consider the subject matter patentability of computer program-related inventions. The Court of Customs and Patent Appeals earlier decided In re Naquin, 55 C.C.P.A. (Pat.) 1428, 398 F.2d 863 (1968), in which it rejected a challenge to an application for a patent on a program-related invention on grounds of inadequate disclosure under § 112.
See Gottschalk v. Benson, 409 U. S. 63 (1972) .
See also Novick & Wallenstein, The Algorithm and Computer Software Patentability: A Scientific View of a Legal Problem, 7 Rutgers J.Computers, Tech. & L. 313, 316-317 (1980).
See, e.g., Don Lee, Inc. v. Walker, 61 F.2d 58, 67 (CA9 1932); In re Bolonaro, 20 C.C.P.A. (Pat.) 845, 846-847, 62 F.2d 1059, 1060 (1933); In re Shao Wen Yuan, 38 C.C.P.A. (Pat.) 967, 969-972, 188 F.2d 377, 379-380 (1951); Lyman v. Ladd, 120 U.S.App.D.C. 388, 389, 347 F.2d 482, 483 (1965).
See, e.g., In re Cooper, 30 C.C.P.A. (Pat.) 946, 949, 134 F.2d 630, 632 (1943); Halliburton Oil Well Cementing Co. v. Walker, 146 F.2d 817, 821, 823 (CA9 1944), rev'd on other grounds, 329 U. S. 329 U.S. 1 (1946); In re Heritage, 32 C.C.P.A. (Pat.) 1170, 1173-1177, 150 F.2d 554, 556-558 (1945); In re Abrams, 38 C.C.P.A. (Pat.) 945, 950-953, 188 F.2d 165, 168-170 (1951); In re Shao Wen Yuan, supra at 975-976, 188 F.2d at 383; In re Lundberg, 39 C.C.P.A. (Pat.) 971, 975, 197 F.2d 336, 339 (1952); In re Venner, 46 C.C.P.A. (Pat.) 754, 758-759, 262 F.2d 91, 95 (1958).
The "function of a machine" doctrine is generally traced to Corning v. Burden, 15 How. 252, 56 U. S. 268 (1854), in which the Court stated: "[I]t is well settled that a man cannot have a patent for the function or abstract effect of a machine, but only for the machine which produces it." The doctrine was subsequently reaffirmed on several occasions. See, e.g., Risdon Iron & Locomotive Works v. Medart, 158 U. S. 68, 158 U. S. 78-79, 84 (1895); Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 170 U. S. 554-557 (1898); Busch v. Jones, 184 U. S. 598, 184 U. S. 607 (1902); Expanded Metal Co. v. Bradford, 214 U. S. 366, 214 U. S. 383 (1909).
See, e.g., In re Weston, 17 App.D.C. 431, 436-442 (1901); Chisholm-Ryder Co. v. Buck, 65 F.2d 735, 736 (CA4 1933); In re Ernst, 21 C.C.P.A. (Pat.) 1235, 1238-1240, 71 F.2d 169, 171-172 (1934); In re McCurdy, 22 C.C.P.A. (Pat.) 1140, 1142-1145, 76 F.2d 400, 402-403, (1935); In re Parker, 23 C.C.P.A. (Pat.) 721, 722-725, 79 F.2d 908, 909-910 (1935); Black-Clawson Co. v. Centrifugal Engineering & Patents Corp., 83 F.2d 116, 119-120 (CA6), cert. denied, 299 U.S. 554 (1936); In re Wadman, 25 C.C.P.A. (Pat.) 936, 943-944, 94 F.2d 993, 998 (1938); In re Mead, 29 C.C.P.A. (Pat.) 1001, 1004, 127 F.2d 302, 304 (1942); In re Solakian, 33 C.C.P.A. (Pat.) 1054, 1059, 155 F.2d 404, 407 (1946); In re Middleton, 35 C.C.P.A. (Pat.) 1166, 1167-1168, 167 F.2d 1012, 1013-1014 (1948); In re Nichols, 36 C.C.P.A. (Pat.) 759, 762-763, 171 F.2d 300, 302-303 (1948); In re Ashbaugh, 36 C.C.P.A. (Pat.) 902, 904-905, 173 F.2d 273, 274-275 (1949); In re Horvath, 41 C.C.P.A. (Pat.) 844, 849-851, 211 F.2d 604, 607-608 (1954); In re Gartner, 42 C.C.P.A. (Pat.) 1022, 1025-1026, 223 F.2d 502, 504 (1955).
"Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. Direct attempts to patent programs have been rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further, and should not be permitted."
Report of the President's Commission on the Patent System, "To Promote the Progress of . . . Useful Arts" in an Age of Exploding Technology 14 (1966).
The Patent Office guidelines were based primarily upon the "mental steps" doctrine and the Cochrane v. Deener, 94 U. S. 780 (1877), definition of "process." See 829 Off.Gaz.Pat.Off. 865 (Aug. 16, 1966); 33 Fed.Reg. 15609 (1968).
Judge Kirkpatrick, joined by Chief Judge Worley, wrote a vigorous dissent objecting to the majority's decision to abandon "a rule which is about as solidly established as any rule of the patent law." 55 C.C.P.A. (Pat.) at 1457, 397 F.2d at 868. Unlike the majority, the dissenting judges did not consider the doctrine inequitable or silly, and they observed that it had functioned in a satisfactory manner in the past. Id. at 1457-1458, 397 F.2d at 869. In addition, they considered the doctrine to be so well established that it had been adopted by implication in the Patent Act of 1952. Id. at 1458, 397 F.2d at 869.
In Prater, the patent application claimed an improved method for processing spectrographic data. The method analyzed conventionally obtained data by using well-known equations. The inventors had discovered a particular mathematical characteristic of the equations which enabled them to select the specific subset of equations that would yield optimum results. The application disclosed an analog computer as the preferred embodiment of the invention, but indicated that a programmed digital computer could also be used. 56 C.C.P.A. (Pat.) at 1361-1363, 415 F.2d at 1379-1380. The Patent Office had rejected the process claims on a mental steps theory because the only novel aspect of the claimed method was the discovery of an unpatentable mathematical principle. The apparatus claim was rejected essentially because, when the mathematical principle was assumed to be within the prior art, the claim disclosed no invention entitled to patent protection. Id. at 1364-1365, 1375, 415 F.2d at 1381, 1399.
It is interesting to note that the Court of Customs and Patent Appeals, in the second Prater opinion, expressly rejected the Patent Office's procedure for analyzing the apparatus claim pursuant to which the mathematical principle was treated as though it were within the prior art. 56 C.C.P.A. (Pat.) at 1397, 415 F.2d at 1405-1406. This precise procedure, of course, was later employed by this Court in Parker v. Flook, 437 U. S. 584 (1978).
Under the "point of novelty" approach, if the novelty or advancement in the art claimed by the inventor resided solely in a step of the process embodying a mental operation or other unpatentable element, the claim was rejected under § 101 as being directed to nonstatutory subject matter. See Blumenthal & Riter, Statutory or Non-Statutory?: An Analysis of the Patentability of Computer Related Inventions, 62 J.Pat.Off.Soc. 454, 457, 461, 470 (1980).
The author of the second Prater opinion, Judge Baldwin, disagreed with the Musgrave "technological arts" standard for process claims. He described that standard as "a major and radical shift in this area of the law." 57 C.C.P.A. (Pat.) at 1367, 431 F.2d at 893-894. As Judge Baldwin read the majority opinion, claims drawn solely to purely mental processes were now entitled to patent protection. Id. at 1369, 431 F.2d at 895-896. Judge Baldwin's understanding of Musgrave seems to have been confirmed in In re Foster, 58 C.C.P.A. (Pat.) 1001, 1004-1005, 438 F.2d 1011, 1014-1015 (1971).
In the interval between the two Benson decisions, the Court of Customs and Patent Appeals decided several cases in which it addressed the patentability of computer-related inventions. In In re McIlroy, 58 C.C.P.A. (Pat.) 1249, 442 F.2d 1397 (1971), and In re Waldbaum, 59 C.C.P.A. (Pat.) 940, 457 F.2d 997 (1972), the court relied primarily upon Musgrave and Benson. In In re Ghiron, 58 C.C.P.A. (Pat.) 1207, 442 F.2d 985 (1971), the court reaffirmed Tarczy-Hornoch's rejection of the "function of a machine" doctrine.
Although the Court did not discuss the mental steps doctrine in Benson, some commentators have suggested that the Court implicitly relied upon the doctrine in that case. See, e.g., Davis, supra, n. 2, at 14, and n. 92. Other commentators have observed that the Court's analysis in Benson was entirely consistent with the mental steps doctrine. See, e.g., Comment, Computer Program Classification: A Limitation on Program Patentability as a Process, 53 Or.L.Rev. 501, 517-518, n. 132 (1974).
The decision of the Court of Customs and Patent Appeals was reversed by this Court on other grounds in Dann v. Johnston, 425 U. S. 219 (1976).
In addition to interpreting Benson, the majority also maintained that Christensen, despite its "point of novelty" language, had not signalled a return to that form of claim analysis. 545 F.2d at 158. The court would reaffirm this proposition consistently thereafter. See, e.g., In re de Castelet, 562 F.2d 1236, 1240 (1977); In re Richman, 563 F.2d 1026, 1029-1030 (1977); In re Freeman, 573 F.2d 1237, 1243-1244 (1978); In re Toma, 575 F.2d 872, 876 (1978); In re Walter, 618 F.2d 758, 766-767 (1980).
See also In re Deutsch, 553 F.2d 689, 692-693 (CCPA 1977); In re Waldbaum, 559 F.2d 611, 616-617 (CCPA 1977); In re de Castelet, supra at 1243-1245.
This form of claim analysis did not originate with Flook. Rather, the Court derived it from the landmark decision of O'Reilly v. More, 15 How. 62, 56 U. S. 115 (1854). In addition, this analysis is functionally the same as the "point of novelty" analysis used in conjunction with the mental steps doctrine. In fact, the Patent Office in the past occasionally phrased its mental steps rejections in essentially the terms later employed in Flook. See nn. 13-15, supra. See generally Comment, 35 U.S.C. 101 Claim Analysis -- The Point of Novelty Approach, 62 J.Pat.Off.Soc. 521 (1980).
The Court of Customs and Patent Appeals suggested that the cause of this Court's error was the argument presented by the Solicitor General in Flook. According to the majority, the Solicitor General's briefs "badly, and with a seeming sense of purpose" confused the statutory requirements. 596 F.2d at 962. The court went on to describe part of the Solicitor General's argument in Flook as "subversive nonsense." 596 F.2d at 963.
See, e.g., In re Johnson, 589 F.2d 1070 (1978); In re Phillips, 608 F.2d 879 (1979); In re Sherwood, 613 F.2d 809 (1980), cert. pending, No. 79-1941.
"A manufacturing process is clearly an art, within the meaning of the law. Goodyear's patent was for a process, namely, the process of vulcanizing india rubber by subjecting it to a high degree of heat when mixed with sulphur and a mineral salt."
"The mixing of certain substances together, or the heating of a substance to a certain temperature, is a process."
"Since the day 120 years ago when Goodyear first heated a mixture of rubber and sulphur on a domestic stove and so discovered vulcanisation, this action of heat and sulphur has remained the standard method of converting crude rubber, with all its limitations, into a commercially usable product, giving it the qualities of resistance to heat and cold in addition to considerable mechanical strength."
"Goodyear also conjured up the word 'cure' for vulcanisation, and this has become the recognised term in production circles."
"Respondents characterize their contribution to the art to reside in the process of constantly measuring the actual temperature inside the mold." See ante at 450 U. S. 178.
"An interval timer starts running from the time of mold closure, and the temperature within the mold cavity is measured often, typically every ten seconds. The temperature is fed to a computer. . . ."
"By accurate and constant calculation and recalculation of the correct mold time under the temperatures actually present in the mold, the material can be cured accurately, and can be relied upon to produce very few rejections, perhaps completely eliminating all rejections due to faulty mold cure."
"A surveillance system is maintained over the mold to determine the actual mold temperature substantially continuously, for example, every ten seconds, and to feed that information to the computer along with the pertinent stored data and along with the elapsed time information."
"Thermocouples, or other temperature detecting devices located directly within the mold cavity may read the temperature at the surface where the molding compound touches the mold, so that it actually gets the temperature of the material at that surface."
"Vulcanisation is too important an operation to be left to human control, however experienced and conscientious. Instrumentation makes controlled cure possible, and, in consequence, instrument engineering is a highly important function in the modern rubber factory, skilled attention being necessary not only in the maintenance of the instruments, but also in their siting. There are instruments available which will indicate, record or control all the services involved in vulcanisation, including time, temperature and pressure, and are capable of setting in motion such operations as the opening and closing of moulds and, in general, will control any process variable which is capable of being converted into an electric charge or pneumatic or hydraulic pressure impulse."
Mernagh, supra, n. 25, at 1091-1092.
"The Diehr invention improved the control system by continually remeasuring the temperature and recalculating the proper cure time. The computer would simultaneously keep track of the elapsed time. When the elapsed time equalled the proper cure time, the rubber would be released automatically from the mold."
"The facts are difficult to distinguish from those in Flook. Both processes involved (1) an initial calculation, (2) continual remeasurement and recalculation, and (3) some control use of the value obtained from the calculation."
Novick & Wallenstein, supra, n. 5, at 326 (footnotes omitted) .
"An improved method of calculating the cure time of a rubber molding process utilizing a digital computer comprising the steps of:"
"a. inputting into said computer input values including"
"1. natural logarithm conversion data ([l]n),"
"2. an activation energy constant (C) unique to each batch of rubber being molded,"
"3. a constant (X) dependent upon the geometry of the particular mold of the press, and"
"4. continuous temperature values (Z) of the mold during molding;"
"b. operating said computer for"
"1. counting the elapsed cure time,"
"2. calculating the cure time from the input values using the Arrhenius equation [l]n V = CZ + X, where V is the total cure time, and"
"c. providing output signals from said computer when said calculated cure time is equal to said elapsed cure time."
Ibid. The authors correctly conclude that even the lower court probably would have found that this claim was drawn to unpatentable subject matter under § 101. Id. at 505-506.
In addition to confusing the requirements of §§ 101 and 102, the Court also misapprehends the record in this case when it suggests that the Diehr and Lutton patent application may later be challenged for failure to satisfy the requirements of §§ 102 and 103. See ante at 450 U. S. 191. This suggestion disregards the fact that the applicants overcame all objections to issuance of the patent except the objection predicated on § 101. The Court seems to assume that §§ 102 and 103 issues of novelty and obviousness remain open on remand. As I understand the record, however, those issues have already been resolved. See Brief for Respondents 11-14; Reply Memorandum for Petitioner 3-4, and n. 4. Therefore, the Court is now deciding that the patent will issue.
The early cases that the Court of Customs and Patent Appeals refused to follow in Prater, Musgrave, and Benson had recognized the distinction between the § 101 requirement that what the applicant claims to have invented must be patentable subject matter and the § 102 requirement that the invention must actually be novel. See, e.g., In re Shao Wen Yuan, 38 C.C.P.A. (Pat.) at 973-976, 188 F.2d at 382-383; In re Abrams, 38 C.C.P.A. (Pat.) at 951-952, 188 F.2d at 169; In re Heritage, 32 C.C.P.A. (Pat.) at 1173-1174, 1176-1177, 150 F.2d at 556, 558; Halliburton Oil Well Cementing Co. v. Walker, 146 F.2d at 821, 823. The lower court's error in this case, and its unenthusiastic reception of Gottschalk v. Benson and Parker v. Flook is, of course, consistent with its expansive reading of § 101 in Tarczy-Hornoch, Prater, and their progeny.
"The obligation to determine what type of discovery is sought to be patented must precede the determination of whether that discovery is, in fact, new or obvious."
437 U.S. at 437 U. S. 593. As the Court of Customs and Patent Appeals noted in this case, "for the claim to be statutory, there must be some substance to it other than the recitation and solution of the equation or formula." 602 F.2d at 988. See Comment, 62 J.Pat.Off.Soc., supra n. 22, at 522-523.
"This assumption is based on respondent's narrow reading of Benson, and is as untenable in the context of § 101 as it is in the context of that case. It would make the determination of patentable subject matter depend simply on the draftsman's art, and would ill-serve the principles underlying the prohibition against patents for 'ideas' or phenomena of nature. The rule that the discovery of a law of nature cannot be patented rests not on the notion that natural phenomena are not processes, but rather on the more fundamental understanding that they are not the kind of 'discoveries' that the statute was enacted to protect."
437 U.S. at 437 U. S. 593 (footnote omitted).
"The invention will probably best be understood by first describing a simple example, in which a single mold is involved and in which the information is relatively static."
"A standard digital computer may be employed in this method. It has a data storage bank of suitable size which, of course, may vary when many molds are used and when more refinements are employed. However, Fig. 1 shows a relatively simple case which achieves results that are vast improvements over what has been done up to now. . . ."
"The data bank of the computer is provided with a digital input into which the time-temperature cure data for the compound involved is fed, as shown in Fig. 1. All the data is available to the computer upon call, by random access, and the call can be automatic, depending upon the temperature actually involved. In other words, the computer, over and over, questions the data storage, asking, what is the proper time of cure for the following summation of temperatures? The question may be asked each second, and the answer is readily provided."
"Recalculation continues until the time that has elapsed since mold closure corresponds with the calculated time. Then, the computer actuates the mold-opening device and the mold is automatically opened."
"The patent sought is on a method of programming a general purpose digital computer to convert signals from binary-coded decimal form into pure binary form. A procedure for solving a given type of mathematical problem is known as an 'algorithm.' The procedures set forth in the present claims are of that kind; that is to say, they are a generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another. From the generic formulation, programs may be developed as specific applications."
409 U.S. at 409 U. S. 65.
"The notion that post-solution activity, no matter how conventional or obvious in itself, can transform an unpatentable principle into a patentable process exalts form over substance. A competent draftsman could attach some form of post-solution activity to almost any mathematical formula; the Pythagorean theorem would not have been patentable, or partially patentable, because a patent application contained a final step indicating that the formula, when solved, could be usefully applied to existing surveying techniques. The concept of patentable subject matter under § 101 is not 'like a nose of wax which may be turned and twisted in any direction. . . .' White v. Dunbar, 119 U. S. 47, 119 U. S. 51."
437 U.S. at 437 U. S. 590 (footnote omitted).
Although the Court of Customs and Patent Appeals erred because it ignored the distinction between the § 101 requirement that the applicant must claim to have discovered a novel process and the § 102 requirement that the discovery must actually be novel, that court correctly rejected the argument that any difference between Claim 11 and the earlier claims was relevant to the § 101 inquiry. See 602 F.2d at 984, 987-988.
"Mackay Radio and Funk Bros. point to the proper analysis for this case: the process itself, not merely the mathematical algorithm, must be new and useful. Indeed, the novelty of the mathematical algorithm is not a determining factor at all. Whether the algorithm was, in fact, known or unknown at the time of the claimed invention, as one of the 'basic tools of scientific and technological work,' see Gottschalk v. Benson, 409 U.S. at 409 U. S. 67, it is treated as though it were a familiar part of the prior art."
437 U.S. at 437 U. S. 591-592.
"The need of the incentive of patents for software is at least as great as that of the incentive available for hardware, because: 'Today, providing computer software involves greater . . . risk than providing computer . . . hardware. . . .'"
"To a financial giant, the economic value of a patent may not loom large; to the small software products companies upon which the future of the development of quality software depends, the value of the patent in financing a small company may spell the difference between life and death. To banks and financial institutions, the existence of a patent or even the potentiality of obtaining one may well be a decisive factor in determining whether a loan should be granted. To prospective investors, a patent or the possibility of obtaining one may be the principal element in the decision whether to invest."
"Making clear that patents may be available for inventions in software would unleash important innovative talent. It would have the direct opposite effect forecast by the . . . hardware manufacturers; it would enable competition with those companies and provide the needed incentive to stimulate innovation."
Brief for ADAPSO as Amicus Curiae in Parker v. Flook, O.T. 1977, No. 77-642, P. 44 (footnote omitted).
Gemignani, supra, n. 1, at 309. In a footnote to that comment, Professor Gemignani added that the rate of growth of the software industry "has been even faster lately than that of the hardware industry, which does enjoy patent protections." Id. at 309, n. 259. Other commentators are in accord. See Nycum, Legal Protection for Computer Programs, 1 Computer L.J. 1, 55-58 (1978); Note, Protection of Computer Programs: Resurrection of the Standard, 50 Notre Dame Law. 333, 344 (1974).
See, e.g., Gemignani, supra, n. 1, at 301-312; Keefe & Mahn, Protecting Software: Is It Worth All the Trouble?, 62 A.B.A.J. 906, 907 (1976).
"The Patent Office now cannot examine applications for programs because of the lack of a classification technique and the requisite search files. Even if these were available, reliable searches would not be feasible or economic, because of the tremendous volume of prior art being generated. Without this search, the patenting of programs would be tantamount to mere registration, and the presumption of validity would be all but nonexistent."
Report of the President's Commission, supra, n. 10, at 13.
It is noteworthy that the position of the Court of Customs and Patent Appeals in the process patent area had been consistent with that of the Commissioner of Patents and Trademarks for decades prior to 1968. As discussed in 450 U. S. supra, in that year, the court rejected two longstanding doctrines that would have foreclosed patentability for most computer programs under § 101.
A number of authorities have drawn the conclusion that the terms are, in fact, synonymous. See, e.g., Novick & Wallenstein, supra, n. 5, at 333, n. 172; Anderson, Algorithm, 1 Encyclopedia of Computer Science & Technology 364, 369 (J. Belzer, A. Holzman & A. Kent eds. 1975); E. Horowitz & S. Satani, Fundamentals of Computer Algorithms 2 (1978); A. Tanenbaum, Structured Computer Organization 10 (1976). Cf. Blumenthal & Riter, supra, n. 15, at 455-456; Gemignani, supra, n. 1, at 271-273, 276, n. 37.


Section 5316, added Pub. L. 109–59, title III, § 3018(a), Aug. 10, 2005, 119 Stat. 1601, related to job access and reverse commute formula grants.
A prior section 5316, Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 814; Pub. L. 104–59, title III, § 338(c)(5), Nov. 28, 1995, 109 Stat. 605, related to university research institutes, prior to repeal by Pub. L. 105–178, title V, § 5110(c), June 9, 1998, 112 Stat. 444.
Section 5317, added Pub. L. 109–59, title III, § 3019(a), Aug. 10, 2005, 119 Stat. 1605, related to the New Freedom grant program to assist individuals with disabilities with public transportation.
A prior section 5317, Pub. L. 103–272, § 1(d), July 5, 1994, 108 Stat. 815; Pub. L. 104–287, § 5(14), Oct. 11, 1996, 110 Stat. 3390; Pub. L. 105–178, title III, § 3029(b)(7), June 9, 1998, 112 Stat. 372, related to transportation centers, prior to repeal by Pub. L. 105–178, title V, § 5110(c), June 9, 1998, 112 Stat. 444.


Party Name: UNITED STATES of America, Plaintiff-Appellee, v. Jadrion GRIFFIN, Defendant-Appellant.
Attorney: Bradley A. Blackington, Attorney, Office of the United States Attorney, Indianapolis, IN, Matthias D. Onderak (argued), Attorney, Office of the United States Attorney, Evansville, IN, for Plaintiff-Appellee. Brian J. Paul (argued), Attorney, Ice Miller LLP, Indianapolis, IN, for Defendant-Appellant.
Judge Panel: Before SYKES, TINDER, and HAMILTON, Circuit Judges.
Bradley A. Blackington, Attorney, Office of the United States Attorney, Indianapolis, IN, Matthias D. Onderak (argued), Attorney, Office of the United States Attorney, Evansville, IN, for Plaintiff-Appellee.
Brian J. Paul (argued), Attorney, Ice Miller LLP, Indianapolis, IN, for Defendant-Appellant.
Before SYKES, TINDER, and HAMILTON, Circuit Judges.
When two Indiana police officers attempted to stop a car matching the description of one reportedly involved in a road-rage incident, the driver Jadrion Griffin, initially showed signs of compliance. He then changed his mind and continued to drive, prompting a brief low-speed car chase. Griffin eventually pulled over, but not before leading the officers through a parking lot where he tossed a plastic bag containing 82 grams of crack into newly fallen snow.
of all but one of the counts charged. The court imposed a 360-month sentence.
On appeal Griffin claims he was illegally seized when he threw the crack in the snow and therefore the drug evidence should have been suppressed. He also raises two challenges to his sentence. He first claims that he should not have been sentenced as a career offender under section 4B1.1 of the sentencing guidelines because his prior conviction for vehicular flight under Indiana law is not a crime of violence. He also argues that he should be resentenced using the new crack-to-powder ratio prescribed by the Fair Sentencing Act of 2010 (" the FSA" ), Pub.L. No. 111-220, 124 Stat. 2372.
We affirm. Griffin was not " seized" for Fourth Amendment purposes when he discarded the crack in the parking lot during the low-speed police chase, so the drug evidence was properly admitted at trial. Griffin's sentencing challenges are foreclosed by our precedent and by the Supreme Court's recent decision in Sykes v. United States, --- U.S. ----, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011).
Shortly after midnight on February 3, 2007, two Indiana State Excise Police officers patrolling in an unmarked squad car in Evansville, Indiana, received a dispatch alerting them to a possible road-rage incident nearby. The dispatch was prompted by a 911 call reporting that a black male driving a blue GMC Yukon had just thrown something at another vehicle. The unidentified caller reported that the driver was last seen traveling northbound on Fulton Avenue in Evansville. Not long after receiving this dispatch, the officers saw a blue Yukon traveling southbound on Fulton. They began following the Yukon, and although they did not observe any traffic violations or other signs of road rage, they decided to pull the vehicle over.
When the officers found a safe place to initiate the stop, they turned on their squad's emergency lights. The Yukon initially slowed and appeared to be pulling over, but then changed course and continued down the road. An Evansville police officer patrolling nearby heard a dispatch about the pursuit over his police radio and joined in the chase. The Evansville officer turned on his emergency lights and siren, but the Yukon continued to drive, passing through a red light in the process.
At some point the State Police officers turned on their siren as well. The Yukon still did not stop, so the officers activated their squad-car intercom and verbally commanded the driver to pull over. The Yukon made a few evasive maneuvers— turning into an alley and cutting through a parking lot covered in freshly fallen snow— before eventually complying. The pursuit lasted only about one minute. The officers later estimated that the Yukon traveled at 20 to 35 miles per hour during the chase.
After pulling over, Griffin got out of the Yukon and the officers arrested him for resisting law enforcement by vehicle and for several traffic offenses committed during the pursuit. They then searched the route Griffin had traveled during the chase. In the parking lot alongside the Yukon's fresh tire tracks in the snow, they found a plastic bag containing 82 grams of crack cocaine. Griffin was charged with felony drug offenses in Indiana state court and released on bond pending trial. Several months later, officers executed a federal search warrant at Griffin's home in Evansville. They recovered 26 grams of cocaine base, digital scales, a loaded .45-caliber handgun, a drug ledger, and $1,858 in cash.
lot. The five-count indictment contained three drug charges pursuant to 21 U.S.C. § 841: conspiracy to distribute 50 or more grams of crack cocaine (Count I); possession with intent to distribute 50 or more grams of crack cocaine on the day of the low-speed car chase (Count II); and possession with intent to distribute five or more grams of crack cocaine on the day the search warrant was executed (Count III). The final two counts alleged violations of federal gun laws, specifically possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count IV), and unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (Count V).
Prior to trial Griffin moved to suppress the crack cocaine recovered from the parking lot immediately after the police pursuit. He claimed that this evidence should be excluded as the fruit of an illegal seizure because the State Police officers lacked reasonable suspicion to justify initiating the stop. The district court denied the motion.
A two-day jury trial ensued. The government introduced the drug evidence— including the 82 grams of crack recovered from the parking lot— over defense counsel's continuing objection. The jury convicted Griffin of all counts except Count IV, the charge of possessing a firearm in furtherance of a drug-trafficking crime.
At Griffin's sentencing hearing, the court calculated a guidelines base offense level of 34 after finding Griffin responsible for over 500 grams of crack cocaine in the course of the conspiracy. The court deducted two points based on its policy disagreement with the crack-to-powder disparity in the guidelines, but then determined that Griffin's prior convictions for battery with a deadly weapon and felony resisting law enforcement by vehicle qualified him as a career offender, which raised his offense level to 37. Based on this offense level and Griffin's criminal-history category of VI, the court calculated a guidelines range of 360 months to life. The court sentenced Griffin to concurrent terms of 360 months on Counts I and II, and 120 months on Counts III and V. Griffin appealed.
Griffin makes three arguments on appeal. He first claims that the crack cocaine found in the snowy parking lot should have been suppressed as the fruit of an illegal seizure. He argues that he is entitled to a new trial because the improper admission of this evidence tainted his entire trial. His other arguments relate to his sentence. He claims that the district court erred when it found him to be a career offender under the sentencing guidelines by counting his Indiana conviction for vehicular flight as a crime of violence. Finally, Griffin maintains that he should be resentenced using the more lenient crack-to-powder ratio set forth in the FSA.