Guest Post by Polk Wagner (Professor at the University of Pennsylvania School of Law)
Mark Lemley, Michael Risch, Ted Sichelman, and I have authored an amicus brief in the Bilski v. Doll case currently pending before the US Supreme Court. (Get the full brief here [pdf].) In that brief, we argue that the Court's precedents establish that the key to eligible subject matter is ascertaining whether an idea is claimed as applied–in which case it is eligible for patentability (assuming it is not a natural phenomenon or law of nature)–or merely in the abstract–in which case it is not.
We start with the proposition that while the range of subject matter available for patenting is very broad, it is not unlimited. But the restrictions imposed by the Supreme Court, we think, have not focused on the technology, form, or physicality of the claimed invention–the critical mistake made by the Federal Circuit in Bilski. Rather, the Court has uniformly recognized that the key to eligible subject matter is ascertaining whether an idea is claimed as applied, or claimed in the abstract.
This applied/abstract distinction has a long history in Supreme Court caselaw. It can be most clearly seen in the O'Reilly v. Morse case from 1854, where the Court invalidated a claim to all communication by electrical signal as abstract, but allowed a claim to the application of the communications method to stand. 56 U.S. 62, 112-21 (1854). That is, where Morse claimed the idea of communication by electrical signal, the claim was disallowed. But the Court did uphold Morse's claim to a system (e.g., "Morse Code") that applied the communication-by-electricity idea in a practical, concrete way.
One can discern the applied/abstract thread throughout twentieth-century Supreme Court decisions involving §101 subject matter. In Mackay Radio, the Court upheld a claim to a mathematical principle (related to the reception of radio waves) as applied to an antenna, noting that "[w]hile a scientific truth, or the mathematical expression of it, is not patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be." 306 U.S. 86, 94 (1939). In Gottschalk v. Benson, the Court denied patentability to an "abstract and sweeping" claim: the mathematical conversion of binary coded decimals into pure binary format. 409 U.S. 63, 66-67 (1972). And finally, in Diamond v. Diehr, the applied/abstract approach drove the analysis–in upholding the claims, the Court noted that the subject matter was 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." 450 U.S. 175, 181 (1981) (emphasis added). Indeed, in Diehr, the Court makes our argument for us:
It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection. . . . 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 least not barred at the threshold by §101.
Id. at 187-88 (emphasis in original).
We also argue that echoes of this applied/abstract distinction can be seen in the related-but-distinct caselaw considering the patentability of products of nature. Here, the Supreme Court has repeatedly emphasized in this context that the patent law is designed to protect applications of human ingenuity, not simply "natures' handiwork." Thus, while a man-made organism is eligible for patentability, see Diamond v. Chakrabarty, 447 U.S. 303, 310 (1980), a natural bacterium is not, see Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 131 (1948). The boundary here is neither the form of the invention nor its ability to transform nature; instead the analysis turns on whether the patent claims describe the application of human knowledge to a practical end. In this way, a claim to an abstract idea is like a claim to a product of nature: unmoored to real-world applications of human inventiveness, and thus ineligible for patenting.
Finally, we note that the applied/abstract analytic framework nicely harmonizes Section 101 with Section 112's enablement requirement. Much like Section 101, Section 112 safeguards the essential function of the patent system: the dissemination of real-world, practical human knowledge. Claims to abstract mathematical concepts (like claims to natural products or physical phenomena) violate this tenet, by failing to demonstrate that the inventor is adding to the storehouse of useful, practical human accomplishment. (Indeed, the subject matter and enablement requirements were formerly part of the same statutory section. Patent Act of 1836, Ch. 357, 5 Stat. 117, § 6 (July 4, 1836).)
In sum, we argue that the patent statutes were wisely drafted with an expansive vision of patentable subject matter. Efforts to graft judicially created limitations onto that expansive scope in the past have proven fruitless and indeed counterproductive. This Court should not impose a requirement that patentable inventions require a machine or the physical transformation of some material. It should instead maintain the rule that patents are available for anything under the sun made by man, including discoveries of ideas, laws of nature, or natural phenomena so long as they are implemented in a practical application. In short, the test should be as it has been: where an idea is claimed as applied, it is eligible for patentability, but if it is claimed merely in the abstract it is not.
Brian –
Is it your position (or “scrumpet’s”) that there should be no patent system, that nothing should be patentable?
If not, is it your position that “calculus, Newtonian mechanics, relativistic mechanics” are special cases? If so, why?
Why is Newtonian mechanics less patent worthy than say a new drug that cures cancer or a new microprocessor that operates 10,000 times faster on one tenth the power, or a new can opener, or a new mouse trap? Why does patenting have a negative effect in the areas you enumerated, but a positive one in other areas?
I just realized my last post was awkward. Let me sum up.
Les, I think scrumpet’s point is that patenting everything is absurd.
Patents on calculus, Newtonian mechanics, relativistic mechanics, etc. could not possibly have promoted the progress of science. At best, it would have reduced the practitioners of science to those who could afford to retain teams of patent lawyers and cross-licensing deals.
Les, I think his point is that patenting every useful discovery is absurd.
E=mcc is certainly a useful discovery, no doubt about it, but I think a lot of us doubt whether patenting it would promote more useful discoveries.
If it were patentable, would someone have figured it out sooner? I highly doubt it; we would have been busy arguing in the courts over who was licensed (by the patent holders) to pursue science and who wasn’t. (Leibniz might have had the final word on calculus because he patented first, and we might never have heard about Newton!)
As a layperson, I can’t help but think that patenting every major or minor discovery would discourage the progress of science. Why invent when you might be faced with a lawsuit for your invention? Or when you have to file for a patent for everything you do, or else risk losing claim to your own inventions?
Oh, the sweet irony of 6 at 5:52 PM calling forth the playground analogy – from one so utterly classless and evidently clueless.
6. please continue to astound us with your wit, profanities and racial slurs and show just how keen an intellect you have.
Those beat downs you suffered as a child must have been severe.
Used tissue anyone?
ooops. I must not have actually posted the post “above” that I referred to in my last post.
This is a summary of the Amicus Brief I referred to above. The Blog post at the link provides a link to the brief itself. Ms. Barschall is my hero.
Anne Barschall: The Supreme Court appears to have some “prejudice against electronic devices [as evidenced by] both Benson and Morse.” Its not magic, it is engineering. You can’t see electricity or quantum particles but that does not make them abstract ideas. File Attachment: barschallamicus.pdf (217 KB)
link to patentlyo.com
They should. An Amici Brief was filed by a female attorney in support of the petition for Cert (at the previous stage of the process, not the present go around), that provides excellent arguments for the court to correct earlier rulings. I think a link to it was provided on this site.
Les Wrote:
“The Bilski court has misinterpreted Supreme Court Precedent when it argues that Supreme Court precedent asserts the machine or transformation test as the only test. Supreme Court Precedent, says exactly the opposite.”
Oh, I agree whole heartily. I was actually referring to the Supreme Court precedent you have so deftly pointed out and quoted. What I am interested in is if the SCOTUS will ignore their own precedent and what their rational will be if they do so.
MM wrote:
“Why is it “crap”, AI? ”
You tell me. Thats your distinction, not mine. But I can say its not an invention, for patent purposes until you have a specification complete with drawings and the claims of course. When you have that I will be glad to give you my opinion as an Actual Inventor.
Noise, truly amazing work there. I haven’t seen the likes of it since the playground in first grade.
6,
Some of us knew this – some of us also know that you are beyond salvation. You are like a tissue, used when necessary and thrown away.
Don’t consider yourself more important than a used tissue.
omg omg omg lolz. The director is starting a blog! employee only for now. Soon to be made public.
Let me be clear. I have not expressed, express, or wish to express any contrition, false contrition or anything of the sort. Any implication that such was the case is mistaken. Saying the statement was soooo bad is called sarcasm and should not be read as if I feel guilty about it or wish to be percieved as feeling guilty about it.
Let me also be clear that I am flippant about anything and everything present in my intertubes save my credit card number/info.
And btw, I knew I crossed an arbitrary imaginary line created by those like you. Don’t think for one second I did not.
Actual Inventor: “Crap of course.”
Why is it “crap”, AI?
6, point taken with free expression, and I for one will fight for your ability to express your thoughts on law, the Office, your favorite artist on youtube and a myriad of other topics.
However, if you cannot see that you crossed a line, then it falls on the moderator to decide what is acceptable. As NAL pointed out, a recent purge of posts was enacted. It is perhaps unfortunate that your latest faux pas is so near in time to the recent administrative action, but I think it is more telling that you displayed a callous response and now top that off with a flippant dismissal.
False contrition is more a slap in the face than no contrition.
Fine fine, delete the post. It’s soooooo horrible.
Besides all this, you’re making a mountain out of a molehill joking post, it was hardly a “callous plan”. A troll post is a troll post is a troll post. I don’t care if it is deleted or not.
That said, censoring free expression in this country should be taken with care lest we have in fact what we don’t have by law.
Reprinted (and seconded) from the thread at
link to patentlyo.com
“Dennis,
Please delete comments when they include racially inappropriate remarks. I know you are the most popular blog, but I think you may lose a lot of us if you don’t keep it clean. I do not wish to be in silent consent to racially inappropriate remarks going unchallenged on a blog that is moderated.
Posted by: Night Writer Patent Attorney | Aug 24, 2009 at 12:56 PM ”
6, I don’t think it is a first amendment issue of what you say, but rather, the callous and planned manner per your post at 5:10 AM that calls for censure.
If you cannot control yourself, then perhaps it is right that others control you, or at least, control what remains on their blog.
The Bilski court has misinterpreted Supreme Court Precedent when it argues that Supreme Court precedent asserts the machine or transformation test as the only test. Supreme Court Precedent, says exactly the opposite.
For example, The Bilski court cites Diehr. In Diehr, at 450 U.S. 184, the court only indicates that “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 (emphasis added).” A clue is not a rule or requirement.
The Bilski court also cites Benson. However, at pages 69 and 70 of the decision in Benson, the court points out that “—That a process may be patentable—-, irrespective of the particular form of the instrumentalities used —–cannot be disputed—- (emphasis added).”
At page 71, the court said “A method which may be patented irrespective of the particular form of the mechanism which may be available for carrying it into operation is not to be rejected as ‘functional’ merely because the specifications show a machine capable of using it (emphasis added).” Further on in page 71, the court said “—-We do not hold that no process patent could ever qualify if it did not meet the requirements of our prior precedence— (emphasis added).”
Les wrote: “Actually, it appears to me to come from a deliberate misinterpretation of precedent.”
Well here is the legal definition from the dictionary:
” Law a previous case or legal decision that may be or ( binding precedent) must be followed in subsequent similar cases: : the decision set a precedent for others to be sent to trial in the U.S.”
So Les, if I may ask, what is your interpretation of “precedent” and who has misinterpreted it and how ?
“So you knew that you were going to get called out on your immature and ignorant “comment” and you did it anyway?”
Is this PO? Then I’ll get called out. I get called out when there is no need to call me out.
If you want to join the “censor my interwebs please” crowd go right ahead.
I like you LB, but I don’t like you enough to lay my first amendment at your feet. So cya.
Not to be too glib, but See Ya LB.
This train wreck will keep on rolling.
The attempted disinfection at
link to patentlyo.com
simply wasn’t strong enough.
May I suggest the IPWatchdog? You might be happy to note that 6 was banned from that sight for his blatant ignorance.
“So predictable…”
So you knew that you were going to get called out on your immature and ignorant “comment” and you did it anyway? I think that says a lot more about you than it does me.
You and anyone foolish enough to engage your worse-than-sophomoric “discussions” can have the place to yourselves. I’m done here until the place gets disinfected.
“A troll deserves a good trollin’ don’t ruin it for me LB.”
Fixed your sentence for you 6.
” I am very curious to see how the SCOTUS will deal with it especially when such a test comes from its own most recent precedent.”
Actually, it appears to me to come from a deliberate misinterpretation of precedent.
MaxDrei Wrote:
“Actual Inventor it is my understanding that “fields” come in all shapes and sizes, from below nano to the same size as the universe.”
I believe we have had this conversation before and for some reason you are being deliberately obtuse when defining the term “field”. I think everyone knows what field means when used in the context of work and business. Certainly a field such as the legal field, medical field, or hedging field is different from the electromagnetic field, super unified field or even a football field.
The point is that Bilksi’s application and claims do not pre-empt the Hedging field. So while the authors chose the right test in my opinion, they failed to properly apply it to Bilski.
Certainly anyone claiming that Bilski’s invention pre-empts an entire field and is therefore abstract has a burden to prove such a claim. To date the PTO Board, Chen, and the CAFC have all failed to do so. I am very curious to see how the SCOTUS will deal with it especially when such a test comes from its own most recent precedent.
“Well, if it was that simple you would not be trolling on this blog but actually inventing, filing patents on those inventions and earning a living from the royalties.”
If I had a million dollars startup money I might. But, I don’t have that. If, however, you have a million you’d like to start me up with I’d be glad to file you some shitty abstract predictive nonsense that you can later take to the bank. I come complete with a lot of ideas in my art.
MM Wrote:
“1. A method of improving the likelihood of making a profit off a transaction of a limited commodity and increasing the satisfaction of a customer, comprising:
i) defining a first customer as a preferred customer based on previous transactions with said first customer, wherein said transactions yielded a profit;
ii) defining a second customer as a more preferred customer, based on previous transations with said second customer, wherein said transactions yielded a profit that was at least equal to the profit yielded by said first customer, and wherein said second customer is believed to earn more;
iii) initiating at least three new transactions relating to said limited commodity, wherein the majority of transactions are with the second customer, thereby improving said likelihood of a profit and increasing likelihood of satisfaction of said more preferred customer.
2. The method of claim 1, wherein said new transactions occur in the passenger cabin of an airplane.
3. The method of claim 1, wherein said profits yielded by said first and second customer are compared using a computer, wherein said computer is connected to the airplane directly or remotely, and wherein said computer displays said profits on a screen.
4. The method of claim 1 or 4, wherein said comparison is achieved by Knickel-Froheim analysis of said first and second customer profits.
Patentable under 101, or crap?
Crap of course. It amuses me to see the likes of MM, an obvious poser and amateur, pretend to be an “Actual Inventor”.
And it somewhat amazes me that these mostly flaming anti patent and anti capitalism trolls, as well as the belligerent, lawyer envying, inventor hating patent examiners trolls, think any self admitted abstract crap they think of and type up in a claim form is an actual invention, or all there is to inventing.
Well, if it was that simple you would not be trolling on this blog but actually inventing, filing patents on those inventions and earning a living from the royalties.
Here is a real challenge. Find any actual patent application, pending, or of an issued patent and apply the Diehr standard, 1952 patent Act, and constitution to determine if it’s statutory subject matter. You can start with Bilski.
That will at least give you the opportunity to demonstrate you have the competence to read and comprehend the basic conditions and requirements for statutory subject matter. And leave the actual inventing to, “Actual Inventors”.
To further explain. A screw is not inherently useful until you describe what you can do with it.
Assuming I invented the very first screw, I might claim a FASTENER for holding two objects together, comprising a substantially cylindrical shaft portion having a threaded surface and a head portion having a first surface and a second surface, wherein the first surface has at least one groove….
A tool is only useful if it can be used to actually do something (the value of what it does is unimportant).
Posted by: Lionel Hutz | Aug 20, 2009 at 11:19 AM
Make up your mind Lionel, is a screw useful or isn’t it?
A long time ago a court said the King has clothes on.
Its time to point out that the King in fact, has no clothes.
That is the point I’ve been trying to make to you dim wits and to the authors.
“the courts addressed this a LONG time ago”
Eggzactly, and that’s why yall are getting trolled.
Boxxy has something she’d like to tell you guys.
link to youtube.com
“A screw is useful in and of itself. Understanding of objective reality is not. ”
Indeed, one can always throw a screw and hit Les in the back of his head, but one cannot throw an understanding of objective reality and hit Les anywhere.
“Einstein’s method isn’t about randomly selected numbers and a made up parameter.”
ROTFLMAO.
It’s no less random or made-up than my example. It’s a method of multiplying mass by a number to obtain a “value” that “corresponds” to a “made-up” parameter called “energy.” Yes, it’s “useful” to physicists to perform the caclulation. But calculating the Knechtsen value is “useful” to people playing Knecht Seven. In the context of Knecht Seven, the Knectsen value is no less real than “energy” is to a physicist. You can’t win the game without doing the calculation at least once.
So what’s the difference, Les? I suggest you take your lips off Einstein’s buttcheeks before answering.
A screw is useful in and of itself. Understanding of objective reality is not.
They are not analogous.
“Les presented this as a method of calculating the amount of energy released.”
Right – a calculation of the theoretical quantity of energy released in a theoretical conversion of mass to energy. It’s time to get over this – the courts addressed this a LONG time ago.
“I never said the use needs to be recited in the claim. However, the claimed material needs to be useful in and of itself. ”
Didn’t you also say that a screw is not useful in and of itself?
Didn’t you also agree that a screw is patentable?
Make up your mind.
“You presume that my method is for cacluating the mass of a 2,333,958 objects. That is incorrect. It’s for defining an object’s Knechtsen value, which is useful for playing Knecht Seven, the new adult puzzle game that is currently sweeping the nation.”
Well, if you claim it that way, a method for determining an object’s Knechtsen value, it would meet 101 assuming your specification provides support showing or proving that an object mass when multiplied by this particular constant provides the Knechtsen value.
Einstein’s method isn’t about randomly selected numbers and a made up parameter. Its about a really aspect of a real object and provides a real method for determining that real aspect.
But that does not make it a method. That’s Les’s fundamental problem.
Simply acknowledging what is found in nature is not a patentable method.
“I thought we were talking about 101”
You asked me a question. I answered it. Your question did not reference 101. You asked me if the claims were legally different and if so what the difference was. I gave you the legal differences that I saw.
Les presented this as a method of calculating the amount of energy released.
NWPA,
But E=mcc is not a method.
MM: You are processing information. So, it should be eligible for patentability. 103 would likely be used to exclude it from a patent.
Would we say that a method of processing grain is not eligible for patentability because it sounds silly? Toss the grain in the air. Then toss the grain on the ground. Then toss the grain in the air again and step on the gain.
So what? Should be eligible for patentability. Just like any method that transforms information.
“Presumably, yours if for calculating the mass of 2,323,958 objects and is therefore, I would argue, obvious.”
I thought we were talking about 101, Les, and according to your rules the question of obviousness is irrelevent. As Lionel noted, there is no legal difference between the “the speed of light squared” and my number. Both are merely numbers.
You presume that my method is for cacluating the mass of a 2,333,958 objects. That is incorrect. It’s for defining an object’s Knechtsen value, which is useful for playing Knecht Seven, the new adult puzzle game that is currently sweeping the nation.
I never said the use needs to be recited in the claim. However, the claimed material needs to be useful in and of itself.
Is that too nuanced for you?
Further Les, we are talking about 101. In your response to MM, you stated MM’s claim would have been obvious.
If that’s the case, then E=mcc is obvious.
“I have now shown many times that you are mistaken.”
Les, you have not shown me once where I am mistaken. However, you are still mistaken in thinking that E=mcc is a process of any kind. It’s merely a representation of physical phenomena. Thus, no invention.
“based on usefulness aren’t persuasive.”
Tell it to the court troll.
“While a claimed invention is required to be useful, the use need not be expressed in the claim”
I think Les is right about this. As a further example I’d point to the following claim
1. Element 95.
Is element 95 useful? Presumably so, but the use isn’t recited in the claim.
I don’t think it follows that useful fundamental principles or abstract ideas should be patentable. But I think it does show why arguments based on usefulness aren’t persuasive.
Presumably, yours if for calculating the mass of 2,323,958 objects and is therefore, I would argue, obvious.
Mine on the other hand, was, at the time of invention, anything but obvious.
Yall gettin’ trolled in dis thread.
Yes, mine is limited to determining an energy. Yours is broader for not being so limited. Additionally, yours calculates a mass. Mine calculates an energy.
“a method for determining an energy E releasable from an object comprising:
determining a mass of the object; and
multiplying the determined mass by the speed of light squared, thereby determining the energy E”
Is there a legal difference between this claim and claim that recites “A method comprising the steps of multiplying an object’s mass by the number 2,323,958”?
If so, what is the difference? Help us out, Les.
“You say a screw is patentable under 101. Yes, because people know what they can do with a screw. However, that would still have had to be identified the first time a screw was created.”
I am not saying that uses of E=mCC don’t either have to be apparent or identified in the specification. I am saying that the uses don’t have to be recited in the claims.
You’re position has been that a claim of
a method for determining an energy E releasable from an object comprising:
deteremining a mass of the object; and
multiplying the determined mass by the speed of light squared, thereby determining the energy E
is not patentable because no use is recited. I have now shown many times that you are mistaken. While a claimed invention is required to be useful, the use need not be expressed in the claim (see the screw example, or the composition of matter example posted above). Processes should not be treated as second class inventions, with more being required of them that the other categories of inventions.
“You need to separate yourself from the world and ask what you are. Your brain is an information processor. The representations of the world in your brain are invented by man. At least many are. Some are obviously built in.”
And mental processes have consistently been rejected as unpatentable by the courts.
NWPA,
I fully understand what you are saying, and I have, in fact filed many applications of information processing, including, for example, improved edge detection in scanning processes. However, an edge detection application is an invented process. Representations of the world are not.
You support my point when you state the following
“There are MANY APLICATIONS immediately that need to be able to calculate the amount of energy
released.”
The applications are patentable. The “tool” of calculating how much theoretical energy may be obtained from matter may be used for a variety of purposes, but you have to identify a purpose. You can define a screw as a fastener. What does a description of nature enable you to do? Whatever it enables you to do would be the subject of your claim.
The invention of representations by man, as you put it are no more (and no less) than man attempting to understand what is. They are not attempts to generate something that does not exist.
Thanks for the posts Lionel Hutz. There are good.
I think your problem is that you don’t understand information processing. A screw is a tool for building. Many other such tools exist and could be used instead. Being able to calculate the amount of energy released when matter is converted to energy is a tool. It is an invented representation of the world. There are many applications immediately that need to be able to calculate the amount of energy released.
One does not have to claim the screw with wood or a house. An edge detection algorithm is like a screw. A method of calc. energy from mass is a like a screw.
You need to separate yourself from the world and ask what you are. Your brain is an information processor. The representations of the world in your brain are invented by man. At least many are. Some are obviously built in.
Les,
I believe your problems in understanding relate to time. You say a screw is patentable under 101. Yes, because people know what they can do with a screw. However, that would still have had to be identified the first time a screw was created.
Of course, any new and nonobvious screw is patentable as everyone knows what to do with a screw. (Oh, so many punchlines, so little time)
I get the feeling you would be a terrible judge of obviousness, because you cannoot seem to understand that your invention has to do something and abstract descriptions of the physical world accomplish nothing more than the furtherance of man’s understanding of the world on their own.
OK Les,
Now I think I see where the root of your confusion is.
The trick word in Art. 1, sect. 8, clause 8, is “respective”.
Here is how stuff lines up under “respective”:
Authors –> Writings –> progress of science
Inventors –> Discoveries —> Useful Arts
Now the question is whether the mere expression of the formula, E=mc^2 falls under “Writings” (Copyright law) or under the Useful Arts (Patent Law).
Les, my services in helping you understand patent law and physics are still available for a bargain price.
Les, my services in helping you understand patent law and physics are still available for a bargain price.
Actually, your are both half right and wrong.
You are half right in that, I am correct.
You are wrong in that you misunderstand Schrödinger
“Schrödinger wrote:
One can even set up quite –ridiculous– cases. A cat is penned up in a steel chamber, along with the following device (which must be secured against direct interference by the cat): in a Geiger counter, there is a tiny bit of radioactive substance, so small that perhaps in the course of the hour, one of the atoms decays, but also, with equal probability, perhaps none; if it happens, the counter tube discharges, and through a relay releases a hammer that shatters a small flask of hydrocyanic acid. If one has left this entire system to itself for an hour, one would say that the cat still lives if meanwhile no atom has decayed. The psi-function of the entire system would express this by having in it the living and dead cat (pardon the expression) mixed or smeared out in equal parts.
It is typical of these cases that an indeterminacy originally restricted to the atomic domain becomes transformed into macroscopic indeterminacy, which can then be resolved by direct observation. That prevents us from so —naively accepting as valid– a “blurred model” for representing reality. In itself, it would not embody anything unclear or contradictory. There is a difference between a shaky or out-of-focus photograph and a snapshot of clouds and fog banks.[3]”
link to en.wikipedia.org
Les,
You are both correct and wrong at the same time.
This state of affairs should not come as a surprise to you because quantum mechanics allows for Schrodengire’s cat to be both alive and dead at the same time.
You are right that a method for calculationg E “might” be patentable; but it all depends on the specific invention and how the actual claim is written.
Say you have a deep space satellite that is to be powered over a period of ten years by radioactive decay. Say your inventor comes up with a more precise way of predicting how long the radiactive decay power supply will provide a minimally required amount of power. This is important to know, it is useful and it is a numerical result that is tied to physical reality (and thus more clearly depicts physical reality as opposed to depicting a purely fictional world).
A claim might read as 1. A mehtod for more acurately determining operative lifetime of a radioactive decay power supply, where the supply consists of … and the method comprises: step 1, step 2, and outputting signals representing the more acurate operative lifetime information.
“I think he is a computer program someone wrote. He has been identified with a persistence ignorance problem which leads me to believe his learning module was left out.”
Yes, someone forgot to provision him with a powerful computer brain…
I told you, just put it into a computer simulation and make pretty pictures. Those pictures release good chemicals in my brain. See, it is useful!
Sorry for the cynicism. I’m sure Einstein’s equation had some use for it, I don’t know enough about it… Wasn’t his equation used for the h-bomb?
“A screw is not inherently useful”
…and yet a screw is patentable subject matter under 35 USC 101….
Accordingly, so should be a method of determining E, even if your ridiculous repeated assertions that a method of determining E is not inherently useful were correct.
To further explain. A screw is not inherently useful until you describe what you can do with it.
Assuming I invented the very first screw, I might claim a FASTENER for holding two objects together, comprising a substantially cylindrical shaft portion having a threaded surface and a head portion having a first surface and a second surface, wherein the first surface has at least one groove….
A tool is only useful if it can be used to actually do something (the value of what it does is unimportant).
NWPA,
Why is knowing the potential energy contained in matter inherently useful?
And remember you cannot answer by stating what you can do with that information as that would defeat the argument that its inherently useful.
>>y = 3 * x^5 + sqrt(3.213467*x^3) – log (x / >>4.5673).
If y were the amount of energy released when matter was converted to energy, then yes it should be. You found an abstraction that is not useful. Figuring out how much energy would be released is a tool like a fan, or screw.
Read Newman’s dissent in Bilski to figure out what an abstraction is.
>>Les, is simply a troll. NWPA has posted >>intelligent thoughts before, so I am not sure>> why he is arguing that recognition of >>relationships found in nature should be >>patentable.
I think you mean discoveries of how our brains could represent nature. We have not recognized anything, but invented ways of representing the outside world.
brain = information processor.
computer = infomration processor.
Know Your Audience , its like tip number 1.
link to taltopia.com
I believe games are patentable. Not all games per se, but you could characterize many as simulations or algorithms that achieve a result.
Les,
Glad to see your wit is as sophisticated as your logic.
A method, comprising the steps of:
determining a quantity x; and
calculating a value y, where the value y is calculated from the quantity x based on the relationship
y = 3 * x^5 + sqrt(3.213467*x^3) – log (x / 4.5673).
According to Les, this method is useful because it allows me to determine y. According to Les, this method is patent eligible because it is useful. I just made up this equation; it has no practical application. This exact equation is extremely unlikely to be anticipated by any document, and would also be extremely hard to reject as obvious because it has no known practical application. Yet Les thinks granting a patent on this method would promote the progress of science and the useful arts.
there are plenty of patents claiming methods of playing games
Lionel Hutz rhymes with putz and is a troll.
Regarding patented methods of playing games, how could we forget the Planet Bingo case?
link to promotetheprogress.com
broje: “Are dice, cards, etc. patent eligible subject matter? If so, then methods for using those apparatuses should also be patent eligible subject matter.”
Per se? If so, I must disagree.
Les, is simply a troll. NWPA has posted intelligent thoughts before, so I am not sure why he is arguing that recognition of relationships found in nature should be patentable.
Recent casino game patent 6,173,955.
Please recall that Congress expressly defined in 100(b) that a new use for a known apparatus is a patent eligible process under 101.
I don’t think that it should be required that the steps of the new method be tangible, concrete, etc. But the apparatus being used in the new way needs to be patent eligible subject matter.
Are dice, cards, etc. patent eligible subject matter? If so, then methods for using those apparatuses should also be patent eligible subject matter.
Is a computer patent eligible subject matter? If so, then a method for using a computer should be patent eligible subject matter.
What is the patent eligible apparatus in Bilski?
“I don’t think I’ve ever seen a game claimed as a method per se”
I’m sure they are out there, particularly in the case of card games, where the composition is old. Excercise for the brain. Pleasurable stimulation of neurons. Momentary forgetfulness. Those are all patent-worthy tangible transformations satisfying the utility requirement of 35 USC 101.
“Correct me if I’m wrong, but methods that serve no purpose except to divert or exercise the brain are patentable. I think they’re called “games.” ”
Interesting point, although I don’t think I’ve ever seen a game claimed as a method per se; usually claimed as the physical construct itself.
Here’s a fun one (app pub 20060261550) in keeping with 6’s divine proclamations above entitled, “Messages From The Angels… Follow The Clues Or Follow The Clues Or Follow The Clues…Messages From The Angels”.
From the abstract, “using the power of twenty-seven angels plus numerous words or phrases to teach how positive thoughts, actions and deeds create a life filled with inner peace and happiness while the opposite will cause you to slip and slide backward.”
(link to appft.uspto.gov)
Maybe Les can patent an equation harnessing the power of 27 angels dancing on the head of a pin.
6: “I could sit here an work equations all day long and get nothing done, at all. Working the equation, by itself, is not useful”
But it could be an entertaining distraction or mental exercise. Correct me if I’m wrong, but methods that serve no purpose except to divert or exercise the brain are patentable. I think they’re called “games.”
6, I’m pretty sure he’s not Christ.
Christ you’re du mb.
“Doesn’t have to be in the claim. I believe it is said that the utility must be apparent from the spec.”
Hallaluja –
So, I can point out all the great uses of E in the design of power plants and submarines, and how it can be used to estimate the size of stars and what have you in my spec and cleaning claim a method for determining E without reciting insignificant post solution activity. That is as it should be.