June 17, 2006 Ray Chen / Linda Therkorn Office of the Deputy Commissioner of Patent Examination Policy
c/o Mail Stop Comments
P.O. Box 1450
Alexandria, VA 22313-1450
Dear Ray / Linda,
Your office is currently seeking comments on the "Interim Guidelines for Examination of Patent Applications for Patent Subject Matter".
One of the questions you ask is: "Is the distinction between physical transformation and data transformation appropriate in the context of the Patent Subject Matter Eligibility Interim Guidelines?"
My first comment is that this question is worded incorrectly. Something more appropriate would be:
– Is the distinction between physical transformation and data/information transformation appropriate in the context of the Patent Subject Matter eligibility Interim Guidelines? –
given that one standard definition of "information" is a "set of data".
To this latter question, and even the original question, the answer based on modern physics is "NO" – transforming data and transforming information is always a physical transformation, in light of information’s role as a fundamental physical quantity of modern physics.
Included in this mailing is a copy of a book for your reading, titled "Decoding the Universe: how the new science of information is explaining everything in the cosmos from our brains to black holes" by Charles Seife (Viking Press, 2006). It is an excellent introduction to the physics of information, and should help your Office relate the question you ask to developments in modern physics.
Information is physical. Transforming information is a physical transformation. Any other view is a denial of the science of modern physics, a science the patent system helps progress. There is no progress in denying any aspect of such science. If you have any questions, please contact me.
Thanks,
Greg Aharonian
Jackson argues for a practical test of patent eligibility. Quite right. Europe has its “technical” test, about which Greg Aharonian is vitriolic, but which for the time being holds the ring. Europe’s civil law system of law, without binding precedent, allows 21 equal rank EPO Technical Boards of Appeal to advance the meaning of “technical” in an evolving “survival of the fittest” line of legal logic, where sound decisions are persuasive and poor decisions are ignored.
Stand by for the upcoming English Court of Appeal case on “technical”, because England does have binding precedent. So, how Judge Robin Jacob decides patent eligibility will be read with more than a little interest.
Jackson states, “I think that all of us in the patent field should step outside the box when we look at subject matter eligibility and help the patent system survive by trimming down the eligible subject matter to stuff that really warrants a patent.”
I have no problem with making policy decisions on which technology is patentable subject matter–so long as the motivation is not merely to provide the USPTO with a lighter workload so that the patent system can survive. If the USPTO cannot keep up with the demand, they can pay examiners more money (which helps with recruiting and retention) and pass the additional cost onto applicants in the form of increased examination/filing/claim fees.
Greg is a patent searcher, so I’m not sure whether he will automatically get more business from broader interpretation of the scope of patentable subject matter.
He might have worded his comments more diplomatically, though.
Alun Palmer, Patent Agent
I agree with Tom, above. Mr. Aharonian’s letter smacks of little more than pure arrogance, with nothing more than the bald assertion that information is physical, period. Mr. Aharonian seems to base this conclusion on the premise that “I’m smart, you’re dumb, read this book and it proves my point.” This kind of attitude and action will do nothing to advance patent law.
This is the motivation for the Informatics Act of 2005 (H.R. 4208).
link to thomas.loc.gov:./temp/~c1092aQIPa::
clearly we could wax metaphysical and conclude that all data is “physical.” But what is our definition of physical? Mr. Aharonian decided to go with a condescending (“i’ll talk down to the PTO and show them how stupid they are”) approach, but that doesn’t mean that he said anything worth reading. By Mr. Aharonian’s rationale, pure algorithms–or even worse, laws of nature–would be patentable. I understand that patent attorney’s have a strong collective interest in keeping patent protection broad, because that simply means more business. But with subject matter eligibility and the problem of people trying to patent stuff that just doesn’t seem patentable, and the further problem that the PTO has to examine potentially bad-faith application in good faith (and spend a lot of time doing it), I think that all of us in the patent field should step outside the box when we look at subject matter eligibility and help the patent system survive by trimming down the eligible subject matter to stuff that really warrants a patent.
true, it is tough to articulate a good test. But the whole “everything is physical” argument will get us nowhere, and putting this philosophy into practice will simply snowball the ever burgeoning patent backlog….which hurts everybody.
The distinction between a “physical transformation” and a “data/information” transformation is indeed artificial and ungrounded in the extreme.
The essential difference between a “dumb” bomb and a “smart bomb” is the programming in the smart one. Wipe out the “data/information” in the smart bomb, and its nothing but a dumb one. Do a bad job programming, and it’s basically a dumb one still.
Is there an important difference between a smart bomb and a dumb one, one that shows up in the physical world we all care about?
Ask al-Zarqawi.
Oops, maybe you’ll be a little late on that one.
I agree with his position. It’s a shame, however, that the CAFC has come down so hard on the opposite side.
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