UPDATE: More briefs added Oct 5, 2009, 11:30 am
The final round of amicus briefs have been filed in the pending Supreme Court case of Bilski v. Kappos. Mr. Bilski is appealing the Federal Circuit's en banc rejection of his patent application. In that decision, the court held that Bilski's claimed method of hedging risk did not qualify as patentable subject matter under 35 U.S.C. 101 because the method was neither tied to a particular machine nor transformative of any physical article. Bilski challenges this "machine-or-transformation" test as unduly narrow. Bilski's legal position was supported in a large set of amicus briefs including a strong textualist argument made by Professor John Duffy.
Briefs supporting the government position have been filed. As summarized below, the vast majority of briefs also reject the Federal Circuit's machine-or-transformation test as the sole test of patentable subject matter for a claimed process. In my summaries, I have attempted to capture what I learned from each brief, of course the briefs and arguments are much more extensive and nuanced than my squibs suggest.
Electronic Frontier Foundation (EFF) and the Kauffman Foundation: Business method patents are harmful and should not be allowed. The long history of US patentable subject matter indicate that a patentable process must provide a technological advance. Likewise the mere fact that a process uses a machine or computer does not immediately render the process patentable subject matter. Rather to be patentable, the advance must be a technological advance. EFF etc amicus brief.pdf.
Red Hat: Software methods do not become patentable simply because they are tied to a computer. Benson. Download 08-964bsacRedHatInc.
William Mitchell College of Law IP Institute: This case does not properly present the issue of patentability of claims that include a mix of statutory and non-statutory subject matter. The court should wait for an appropriate case to decide that issue. Parsing Section 101 provides few real answers as to patentable subject matter. Download 08-964 William Mitchell College of Law Intellectual Property Institute.
SFLC (Moglen and Ravicher): Standing alone, software is not patentable. This result is derived from the Supreme Court's decision in Microsoft v. AT&T that “[a]bstract software code [uninstalled in a machine] is an idea without physical embodiment.” 550 U.S. 437, 449 (2007). Download 08-964 Software Freedom Law Center.
SIIA: The patent eligibility of software is well established and should not be disturbed. Download 08-964 Software & Information Industry Association.
Knowledge Ecology Int'l: The goal of the system is to encourage progress, not to reward inventors. Further, patent protection is not a "necessary policy intervention to reward successful investment in new medical technologies. . . . [M]any of the greatest medical advances have benefited significantly, and in some cases exclusively, from mechanisms that exist completely outside of the patent system." Download 08-964 Knowledge Ecology International.
Mark Landesmann: The evidence of the negative social impact of business method and software patenting is properly directed at the PTO's allowance of patents that were not substantially novel and that were not properly disclosed or claimed. There is no evidence that patents on novel, non-obvious and properly disclosed business-method process inventions create any harm. Download 08-964 Mark Landesmann.
Nevada State Bar Ass'n: The machine-or-transformation test harms emerging Nevada businesses – especially in the growing areas of solar energy, gaming, and digital communications. Download 08-964bsacintellectualpropertysectionnevadastatebar.
American Bar Ass'n: The court should use an incremental approach to excluding claims to subject matter where patenting does not make sense and creates a problem. Categorical limits such as the machine-or-transformation test may limit innovation. That said, the "[p]atent law should not interfere with the exercise of human intellect by granting a monopoly on processes in which thinking is central." A specific target of the ABA is to eliminate patents covering tax planning methods. Download 08-964 American Bar Association.
American Insurance Ass'n: Regardless of their novelty, insurance policies should not be the subject of patent protection – even when combined with a computer. Download 08-964 American Insurance Association.
Bank of America, Google, et al.: The patent laws should bar patentability of "accounting methods, tax mitigation techniques, financial instruments, and other means of organizing human behavior—or software used to implement those methods." Download 08-964 Bank of America et al..
Bloomberg: Limiting a method to use on a general purpose computer should not render the method patentable. Download 08-964 Bloomberg.
CCIA: It is important that the Federal Circuit eliminated the overbroad State Street test. The current tension in the patent system can largely be traced to that unprecedented over-expansion of the system. Tight limits on patentable subject matter are important because (inter alia) of the strict liability nature of patent infringement. "Tying patentability to physical subject matter is not a perfect solution. However, it limits the reach of patents in important ways that can significantly reduce the risks of inadvertent infringement and the scope of potential liability."Download 08-964 Computer & Communications Industry Association.
FFII: Patents on business methods have been considered and were rejected by the Statute of Monopolies in 1623. Patents greatly harm the Free & Open Source Software (FOSS) movement. Download 08-964 Foundation for a Free Information Infrastructure.
Professors Menell and Meurer: The Constitution creates a real limit on patentable subject matter – i.e., the subject matter of the patent must be within the "useful Arts." Economic evidence indicates that business method patents (especially internet related business methods) are harmful. 08-964 bsac Menell.pdf.
Law Professors and the AARP (Including Josh Sarnoff): Patents should only cover "inventions in the application." Patents can not cover "non-inventive applications of public domain science, nature, and ideas." The right interpretation of the statute requires that the invention "reside in the application, rather than in a discovery preceding or employed by it. This is because the science, nature, or ideas must be treated as if they are already in the prior art, i.e., are publicly known and free for all to use. Absent invention in applying such discoveries, there is simply no invention to patent." 08-964 bsac Brief of Eleven Law Professors and AARP.pdf.
Microsoft, Philips, and Symantec: Nobody (except Bilski) believes that his claims deserve patent rights. The machine-or-transformation test should not be seen as the exclusive test of patentable subject matter of a process claim – in part because the test has already "proven overly difficult to implement in practice." Like Professor Hollaar, Microsoft would simplify the test by requiring that the invention "involve one or more disclosed physical things." Today's computers – although complex – are not fundamentally different from Babbage's 1836 mechanical computer. Process claims that use computers should be patentable. Am Brief.pdf.
Professor Hollaar and the IEEE: Just restating the general principles of patentable subject matter is unhelpful. Rather, clear rules are needed – especially because the subject matter question is most frequently addressed by patent examiners who have little legal training and little time to ponder abstractions. A clear and time-tested rule would be: A process is patentable subject matter when it involves making or using a machine, manufacture, or composition of matter. This means that software method patents that require a computer would be patentable, but Bilski's method of hedging would not be patentable. bilski-sc-amicus.pdf.
American Medical Association: The machine-or-transformation test should not supplant the requirement that a patent claim "address a technology." A patent should not be allowed to cover "every possible application of a scientific observation." Rather, claims should be limited to "a particular new and useful application or use of the observation. The Supreme Court should use this case to make a statement especially directed to "overreaching claims in the life sciences. . . . Such patents chill research, and patents such as those in Labcorp and Prometheus chill talking and thinking of ideas by making talking and thinking into a tort." 08-964 bsac The American Medical Association.pdf.
Adamas Pharma and Tethys: Section 101 should be interpreted in a way that is objective, predictable, and not duplicative of the other patentability requirements. The machine-or-transformation (MoT) test does not meet any of these requirements. The Federal Circuit test also violates US treaty obligations under TRIPS and NAFTA and potentially subject the US to trade disputes adjudicated at the World Trade Organization (WTO). Under these US-initiated treaties member countries agreed to offer patent rights "in all fields of technologies." A major purpose of the agreements was to ensure that countries offered a full scope of patent rights, and by limiting the scope of rights, the US "will no longer be able to credibly argue in Special 301 trade disputes that failure to protect healthcare inventions made by cutting-edge U.S. companies constitutes inadequate protection of intellectual property rights." Some Congressional intent can be gleaned from the legislative history of Section 287(c) of the patent act. As originally proposed, that provision would have limited the subject matter eligibility of medical and diagnostic methods. After some debate, a compromise was reached to continue to allow their patenting, but to limit the remedies available. 08-964 bsac Adamas Pharmaceuticals.pdf.
Robert Sachs and Daniel Brownstone: Software should be patentable and has been for a long time. The Federal Circuit test greatly confuses the issue. Although software is an abstraction from the physical world, it is not "abstract." SF-5270929-v1-Bilski_v_Doll_Amicus_Brief_of_R_Sachs_and_D_Brownstone_as_amici_curiae_2009-08-06.PDF.
Big Internet Retailers, including Crutchfield, Overstock, and LL Bean: Patent Trolls are hurting online retailers and one way to stop them is to eliminate business method patents (including software business method patents). In effect, business method patents amount to a tax on Internet commerce. (The companies don't mention – unlike offline retailers – internet companies are often exempt from paying sales tax…) Internet Retailer Amicus Brief.pdf.
Brief of CASRIP (U. Washington): The US Constitution sets a bound on the scope of patentable subject matter – limiting them to the Constitutionally proscribed "useful Arts" as that term was understood at ratification. For new methods, one key is to consider the purpose of the method. Methods of entertaining a cat using a laser and telling a joke into a microphone should not be patentable regardless of their tie to particular machines because neither of those functions have ever "been considered a useful Art, and surely . . . is not the kind of discovery that the Patent Clause contemplates." Some methods also exist that should be patentable even though they fail the machine-or-transformation test. Despite its problems, the machine-or-transformation test is "superior to its competitors in filtering out preemptive claims to basic principles." However, it should not be the sole test of eligibility. Bilski's claim is unpatentable because hedging against price inflation (the purpose of the method) is not within the useful Arts. CASRIP am cur brf.pdf.
curious wrote: “I doubt that the Supreme Court will set forth a clear test (they certainly didn’t in KSR).”
Why do we even need a test for 101? We already have the four categories. Isn’t placing an invention in the category of process, machine, composition and manufacture enough? After that just let 112, 102 and the enormously steep 103 do its job and there should not be any problems for anyone.
I doubt that the Supreme Court will set forth a clear test (they certainly didn’t in KSR).
(We do know the name of the person who patented the first high performance sorting system. It was Marty Goetz, and the patent is US #3,380,029, “Sorting System”. The company SyncSort, which is still in business, was built on that patent. That was the first sorting algorithm to break the O(N log N) speed barrier, previously thought, incorrectly, to be a theoretical limit.)
As for the Bilski briefs, they’re frustrating to read. There are several “Briefs for Respondent”, including the ABA and Google briefs, which reject the “machine or transformation” test, want something more restrictive than the “means plus function” test, but don’t suggest a test that provides any clarity. This suggests that we’re going to get a Supreme Court decision which doesn’t provide anything close to a clear resolution of the issue.
6 wrote:
“Question: If a process has utility, how can it be an “abstract idea”?”
“I don’t know by what mechanism this occurs in nature Ned. All I know is that it happens.”
6 if you had any experience in systems analysis, or industrial engineering, or even an undergrad class in cognitive psyche, you would know that a process and an abstract idea are opposites. Yes, this is a trick question posted by Ned, and perhaps unfair to the less informed but nonetheless the science is firm and fair. All processes by the very nature of their construction and function, have utility. Now if you want to discuss the science of mental and industrial production systems I would be glad to elaborate. Until then just know that all processes are technological and/or industrial and therefore eligible for patentability.
MM Wrote: “AI, but I’ve responded to plenty of your strawmen and other misleading horsecrxp. You’ll have to forgive me if I missed a few here and there.”
Yes, you write plenty on this blog but you have consistently failed to provide any substantive evidence based on law, science, fact, or reason for the non patenting of business method – processes. Simply typing expletives, and juvenile insults to individuals or their positions is not substantive, nor is responding with fallacious ad hominem accusations such as troll, straw man, etc.
But I suspect you already know this. The reason you, and self proclaimed scofflaw patent examiners such as 6 act out so is that you have absolutely nothing to offer, even with 22 amici briefs on the subject!
You and all the anti patent/anti business method-process crowd are simply on the wrong side of the law, history and most important, the wrong side of progress.
AI: “For the record here are the questions that have been ducked, avoided, and evaded by the anti patent and especially the anti business method process patent posters on this blog. Their silence speaks volumes.”
I can’t speak for the other “anti business method process patent posters”, AI, but I’ve responded to plenty of your strawmen and other misleading horsecrxp. You’ll have to forgive me if I missed a few here and there.
“The true benefit of business method patents will not be known unless and until these patents are
enforced and sanctioned to the point where
infringement is actually deterred, and new
inventions are given the market opportunity that the patent system was designed to afford them.”
This clown apparently believes that the “true benefit” of increasing one’s profits won’t be understood until new methods of improving profits are “promoted”by the patent system. I thought I’d seen it all but never understimate the idi0cy of a Diehrbot.
“”Question: If a process has utility, how can it be an “abstract idea”?””
I always find it odd that seemingly “intelligent” people ask questions like this without apparently trying to answer it for themselves.
“Question: If a process has utility, how can it be an “abstract idea”?”
I don’t know by what mechanism this occurs in nature Ned. All I know is that it happens.
Observe:
1. A method comprising: thinking about punching Ned in the face.
This method has a utility in that, by performing the method, I am then able to decide whether or not to punch Ned in the face. Right? Right? AMIRITE?
Try on:
1. A method comprising deciding not to add 100000 tons of cake mix based upon a cake mixing bowl’s size being only 1 ft across and 1 foot thick.
The utility is not to bury your cake mixing bowl AMIRITE?
“Im quite sure my money only exists in the form of 1’s and 0’s on a server somewhere.”
Actually that just means your money doesn’t exist. All that exists is some data somewhere that a bank will agree to give you some money based upon (if they so choose).
“But as a peice of software it many perform a function in a new and innovative way.
Therefore it has the same rights as any other patentable invention.”
That assumes that anything that performs a function in a new an innovative is patentable. Unfortunately, that is not the lawl.
“Software is “NOT” abstract, High level programming languages are an abstraction of the basic machine code.”
Where machine code is itself an abstraction though right?
AMIRITE?
“”Could it be that the PTO is granting patents on old and obvious business methods and that this might be the source of the problem instead?”
Nobody ducked these questions AI. Here’s a refresher.
“”Could it be that the PTO is granting patents on old and obvious business methods and that this might be the source of the problem instead?”
Yes it could and the answer is irrelevant.
“”still cannot understand, so please help me, why it is bad to give the inventor of an new business method a patent and it is good instead to allow other to copy his method?”
Because a plurality of reasons, starting with the fact that they aren’t technically an “inventor”. The list continues with: because in this country at least we have a thing called the constitution that explicitly rejects the notion of giving such people patents over such methods. The list then continues on and on with other reasons, those should tide you over.
“”Any American that invents a series of successive steps, that when applied solved the global financial crisis would win a 20 year patent on the invention! So, providing someone could actually do it, would it be worth it to the United States to grant that patent?”
No, granting a patent on it is not worth 20 years of the people of the US not being able to apply the method freely.
“”One, most processes are conducted behind closed doors and are not, in the way you speak, tangible for all to see and appreciate. On the other hand, the patent document fully discloses the method for all in a way that no secret process is ever discoverable. Without the quid-pro-quo of exclusive rights for a limited time, this will, of course, end. How can that benefit society?”
No secret process is ever discoverable? LOL WUT? What are you talking about Ned, you need to rephrase your statement to make a bit of sense.
I assure you that there are “secret methods” within the methods that the majority of the apps which are on my desk. They might even be a secret to the inventor. But not necessarily, they might only be a secret to someone who is outside the company.
“”This cannot be a serious objection to business method or software patents, as it would amount to an objection on the whole concept of patents.”
What cannot be a serious objection? I don’t know the context of the question in order to answer it for you.
“”Now, we have heard the contrary argument from others who have large established businesses and who are used to copying the products of others without compensation, particularly up and comers who whittle at their dominant position. But what is this but an argument in FAVOR of monopoly, not against.
Think of what you are saying, MaxDrei. Your very argument favors the creation and maintenance of real monopolies built on theft.”
That isn’t a question so it certainly can’t be a question that I, or anyone else, is dodging. The lack of a question mark anywhere within the sentences should have tipped you off.
To the extent that “But what is this but an argument in FAVOR of monopoly, not against.” is a question without a question mark I’ll explain.
It is an argument against the government creating a monopoly. Monopolies may exist in a market if nobody has the balls and strength to compete with the monopoly. The government does not need to dole out monopoly rights in order to fight this. If you want, simply take them to court for anti-trust issues.
”
“So tell me Malcolm, why should big businesses have the legal right to steal the original, novel, and non obvious inventions of the small time entrepreneur that just wants to make an honest living and put his/her kids through college?”
First because infringement isn’t a “legal right” even if we make people not be able to create infringement for business methods. And second because infringement isn’t “stealing”. Third because nobody assured an inventor an “honest living” or the ability to “put his kids through college” based upon nothing but coming up with methods of doing business (without actually going into business himself and performing them to make money).
Amirite AI or AMIRITE?
For the record here are the questions that have been ducked, avoided, and evaded by the anti patent and especially the anti business method process patent posters on this blog. Their silence speaks volumes.
“Could it be that the PTO is granting patents on old and obvious business methods and that this might be the source of the problem instead?
Posted by: Ned Heller | Oct 04, 2009 at 06:14 PM”
“still cannot understand, so please help me, why it is bad to give the inventor of an new business method a patent and it is good instead to allow other to copy his method?
Posted by: Ned Heller | Oct 04, 2009 at 07:25 PM”
“Any American that invents a series of successive steps, that when applied solved the global financial crisis would win a 20 year patent on the invention! So, providing someone could actually do it, would it be worth it to the United States to grant that patent?
Posted by: Actual Inventor | Oct 05, 2009 at 12:25 AM”
“One, most processes are conducted behind closed doors and are not, in the way you speak, tangible for all to see and appreciate. On the other hand, the patent document fully discloses the method for all in a way that no secret process is ever discoverable. Without the quid-pro-quo of exclusive rights for a limited time, this will, of course, end. How can that benefit society?
Posted by: Ned Heller | Oct 05, 2009 at 12:08 PM”
::Max Totally Ducked This Issue::
“This cannot be a serious objection to business method or software patents, as it would amount to an objection on the whole concept of patents.
Posted by: Ned Heller | Oct 05, 2009 at 11:59 AM”
“Now, we have heard the contrary argument from others who have large established businesses and who are used to copying the products of others without compensation, particularly up and comers who whittle at their dominant position. But what is this but an argument in FAVOR of monopoly, not against.
Think of what you are saying, MaxDrei. Your very argument favors the creation and maintenance of real monopolies built on theft.
Posted by: Ned Heller | Oct 05, 2009 at 12:17 PM”
“So tell me Malcolm, why should big businesses have the legal right to steal the original, novel, and non obvious inventions of the small time entrepreneur that just wants to make an honest living and put his/her kids through college?
Posted by: Actual Inventor | Oct 06, 2009 at 12:55 PM”
Do you honestly believe, that removing software patents will “fix up” the free software industry.
It’s not like software patents are stifling innovation, as FSF stated they could not use MPEG standard because of possible patents.
So what did they do, they developed their own format and method, Ogg-Theora.
Where in this story did patents stifle innovation ?
It did NOT.
Killing software patents will not make it easier for FOSS people to steal whatever idea they like and use/claim it for themselves.
It will force MORE DRM type restrictions on you, DRM is there (ONLY) to stop theives.
It’s just that simple, locks are to stop criminals.
If people did not steal “digital things”, then DRM would not be necessary.
What would happen if there was no patent protection on innovation ?
All the big players would have a free for all, on you’re and anyones dime.
They would see someone with a great idea, and instead of paying him for his invention and effort they would just use it.
Thats what the FOSS people are trying to do, make it legal to steal.
This will force innovation and invention underground, if a big company cannot protect it’s code with patents, it will force that code to be even more obscured and probably on-the-fly encrypted.
No reverse engineering, no stealing others good idea.
The result of this will be what FOSS is trying to avoid in the first place.
Having to innovate and invent on their own.
They can do it, (Ogg-theora) but THEY JUST DONT WANT TOO.
Why, it’s far easier to take someone’s eles efforts and make it your own.
No brain required.
Just see what someone else has done and copy it. Job done!!!
The problem, is if you have to resort to this method, you WILL ALWAYS be playing catchup.
You’ll be too busy copying what someone else is doing to actually do ANYTHING USEFULL YOURSELF.
This is a systemic problem in FOSS and GNU, very very little from FOSS or GNU is original.
Linux is a knockoff of UNIX, we all know that, even gcc is a knockoff of comercial products.
I have great deal of trouble finding any examples of where FOSS has led the way in terms of INNOVATION and not IMMATATION.
None of this fruitless bickering over patents will amount to anything.
Why should (as someone else stated) a software developer be denied his right for protection of his invention, when the hardware designer he sits next too has no problems.
Software is “NOT” abstract, High level programming languages are an abstraction of the basic machine code.
You can try to push this weak argument, but it seems you (anti-software people) have not really thought this throught very well.
Software is about as ‘abstract’ as my account balance at the bank.
Im quite sure my money only exists in the form of 1’s and 0’s on a server somewhere.
But to me, and everyone else, that is NOT abstract, it’s real it’s physical and it’s mine.
if you look at source code, there is no way of telling about the function of that code without a detailed knowledge of the machine it runs on.
If you dont know the memory map, cpu type, structure, instructions, microcode and so on.
and block of assembly or binary code is meaningless.
But as a peice of software it many perform a function in a new and innovative way.
Therefore it has the same rights as any other patentable invention.
Equally, FOSS has NO RIGHT to think that they can get the laws changed to allow legal theft of others work.
Whatever happens the FOSS people will have to do it by themselves sooner or later.
They want that FREE RIDE bad, they can almost taste it.
It’s sad so much effort goes into trying to legialise theft, when that effort could be better spent on making your products commercially vaible. Usefull, and innovative in their own right.
FOSS, STOP STEALING OFF PEOPLE.
Mark concludes, and this is important:
“For some of the country’s largest technology
companies to, first, be repeatedly found guilty of
defying, and interfering, with the government’s
attempted protection of patented technologies, and
then come before this Court (and before the media),
to argue that some of that protection has proven to
be socially unbeneficial, requires an amount of
chutzpah that can only be explained by the size of
their lobbying, legal, and public relations budgets.
The true benefit of business method patents will not
be known unless and until these patents are
enforced and sanctioned to the point where
infringement is actually deterred, and new
inventions are given the market opportunity that the
patent system was designed to afford them.”
Amicus Brief of Mark Landesman in Bilski, at 29-31
I have just got to post this from Mark Landesman’s brief:
“Venture capital firms and private equity companies
generally do not fund non-organic software or
business method solutions, no matter how novel or
non-obvious, regardless of the strength of their
patent protection and regardless of their ultimate
market potential. This is because they assume that
large companies will, as a matter of implicit policy, and based on their past behavior, not honor other people’s issued patents. As a general rule, they therefore simply do not fund non-organic
applications, even those that would have great
potential and that are backed by great teams.
“Guy Kawasaki, most probably the world’s most
widely-read startup venture capitalist,22 cites
“Patents make our business defensible” as the single
worst answer that an entrepreneur can give when
asked what makes her business defensible. He
explains:
As a startup, it’s highly unlikely that
patents will make your company defensible
because you won’t have the time or money
to do battle with a Microsoft-esque
competitor.23
Venture capitalists do not expect even the strongest
patents on the most novel and useful inventions to
deter infringers, because they have not deterred
infringement in the past.24 Infringement prevents
startups from penetrating and establishing
themselves in the marketplace, and therefore leaves
the further development of the startups’ technologies in the hands of established incumbents. However, because of their vested interests, these incumbents can neither be expected to fully develop these solutions, nor to compete as well and as aggressively for these solutions as their rightful owners would have, had patent protection been an effective deterrent.” Id. at 29
Question: If a process has utility, how can it be an “abstract idea”?
Curious, indeed.
[Patents can not cover “non-inventive applications of public domain science, nature, and ideas.” ]
If they are “non-inventive” they are obvious, aren’t they?
Diehr was wrong.
Ned,
I appreciate your excellent posts. Thank you.
Hagbard Celine: Thanks for the discussion of the development of Benson-like claims in Europe. I don’t know which came first, Benson or Gale, but they seem to have essentially the same approach to computer algorithms. It seems, now, that Gale is no longer good law. Hopefully, Benson will soon also join the ashcan of history.
MaxDrei: “Mr Heller, may I ask, what do you mean by “Finally”? (Finally from me, or finally in this thread?). Had you perhaps been thinking up to that point that EPO law was lacking in common sense? That worries me, in that it suggests that I had been poor in explaining it. But I’m consoling myself with the thought “Better Late than Never”. Maybe you want to go back and re-read my earlier contributions, in the light of your recognition that there is some common sense in there after all.”
MaxDrei, “finally” in this and many other threads. Everyone seems to accept that Benson was right when it obviously was wrong. Improving computer execution through circuits or code are somewhat equivalent. Benson was a form of the latter.
The way the Supremes found it unpatentable was by dissecting the claim into old and new elements, treating the new — the algorithm — as the common resource of all mankind, and the old elements, the computer, as “insignificant.” Flook followed this approach as well. This whole approach was seemingly discarded in Diehr, but Benson still stood there — largely uncriticized.
“reveal not only his frustration with his career”
Frustration with my career? I’m wildly successful beyond my expectations for myself already. The only thing I find frustrating is my having any will left to improve myself. Why I have this I’ll never know, and I could certainly do without it.
But you’re absolutely right about my love life. Bit ches just ain’t the marryin’ type around these parts. And if they are, they’re 1. but ugly or 2. they may as well have “future divorcee” written on their foreheads. That wasn’t what I was brought up to be looking for. I’m a country boy. City life is indeed taxing in this respect. By rights I should be married and have a little house out in the country somewhere.
But on the other hand, you really can’t beat the amount of easy as present here in the country. At the same time, dodgin’ tha aids is a lot more easy. Can you believe the infection rates here in this city? Completely out of hand.
To the matter at hand however. Bigguy, I see you’d rather not simply admit to being clueless and instead offer a free profile of me to attempt to cover it up. Typical lawlyer behavior.
“But it’s not going to happen. ”
If I had to guess, it likely will happen one day. I’ve got a good 5 years to get a good test case, and eventually who I am will likely get out to everyone because I will unwisely fail to keep a low profile irl.
“6 doesn’t think he has to follow the Law, ”
Not technically true Noise, I follow the lawls, just not what you regard the lawls as being. They’re two separate and distinct animals.
“6 doesn’t think he has to follow the Law, much less mere guidance.”
Noise, I think it is more likely that 6 is simply full of hot air. He does exactly what he’s told, then tries to re-inflate his ego after (and during) a hard day as a low-level bureaucrat with self-puffery and affected machismo. What he doesn’t realize is that his reflexive responses to any real or perceived challenge tend to reveal not only his frustration with his career, but his frustrated love life as well.
I’d love to see a copy of one of those 102(b)’s where 6 applies a general purpose computer against a processor configured to carry out a specific process. But it’s not going to happen.
Ned
The EPO does allow claims for “software methods” that are internal to computers and whose only technical benefit is to improve the performance of the computer itself.
The UK finally fell into line with this idea with the Symbian case last year, although the UK office still seems more reluctant to grant “software patents” than the EPO and there still seems to be a difference as regards the boundaries of what each regards as a “technical contribution”.
There was a landmark British case, Gale, which was similar to Benson. It concerned a computationally efficient way of calculating square roots. All claims were refused even when expressed in terms of an encoded ROM, on the basis that the substance of the invention was still nothing more than a mathematical method.
This was in the days when microprocessors had very limited power and memory was hugely expensive. The application of the method to electronic calculation clearly had significant technical and economic merit. It’s highly debatable whether either the EPO or UK would decide it the same way nowadays.
Mr Heller, may I ask, what do you mean by “Finally”? (Finally from me, or finally in this thread?). Had you perhaps been thinking up to that point that EPO law was lacking in common sense? That worries me, in that it suggests that I had been poor in explaining it. But I’m consoling myself with the thought “Better Late than Never”. Maybe you want to go back and re-read my earlier contributions, in the light of your recognition that there is some common sense in there after all.
Mind you, common sense isn’t everything. Isn’t that the way 15 year old future scientists see the world, before they realise that many things are counter-intuitive?
Same with “technical”. At one level, it is common sense. But, at a deeper level, say, Board of Appeal level at the EPO, deciding whether a calculating machine claim survives or falls, it can get pretty abstruse. Compare adult/child. We all know the difference. Pure common sense. But on the question whether any particular individual should be classified as “adult” or “child” opinions may differ, even depending on the time of day or the day of the week.
BigGuy,
6 doesn’t think he has to follow the Law, much less mere guidance.
6, still waiting for you to pick up the challenge on examination based on Law (which you also purport that your boss says you don’t have to follow).
How is that 112 sentence structure challenge coming along?
A L A P P A T.
That’s gotta hurt!
“However, for Mr. Mergesort or Mrs. Quicksort–they woulda made bank (and deservedly so).”
Wait a minute- did you say MRS. Quicksort? Are you suggesting that female computer programmers exist???
*** glimmer of hope ***
One more item; the attack by Eolas today* on pretty much everyone on the internet with any money acts as an ideal visual aid. They had nothing to do with the creation of the internet or with the innovation that makes it great today, yet the current system entitles them to shake down everyone later because of an over-broad, non-physical patent claim. The madness has to end and SCOTUS has the opportunity to do it.
* link to news.cnet.com
MaxDrei: “Mr Heller, if we say that “calculating machines” is a field of technology, started with an abacus and graduated to the electronic machines of today, then an improved calculating machine might well be patentable also in Europe. The statutory exclusion of a computer program, as such, seems to me to be avoided. But as Sarnoff points out, the invention is then in the application of the algorithm, not the algorithm as such.”
Good. Finally some common sense.
It would be great if Bilski would ram this idea home to the Supremes that Benson and Flook were wrongly decided.
link to buyerleverage.com
That you AI?
Just for the record…
/media/docs/2009/10/08-964-mark-landesmann.pdf
😉
“So the PTO issued Interim Instructions for Examination to examiners and then told them that they didn’t have to follow them? If so, the PTO is in far worse shape than I thought. ”
Yes. I’m not sure what you think is binding about “guidelines”. We’ve had them before in other areas, and they were never binding. It is to help examiners know the current lawl, not bind them to a certain interpretation. Why not just go ahead and tell us all that you were talking out your arse about a subject you had no clue about? No hard feelings, you’ll not be the first to do such.
“So, again, go ahead and tell your supervisor that you’re not going to follow the instructions, because you don’t deem them to be binding. But don’t forget to tell us how that works out.”
I see no need to, I send out rejections, he approves them. They don’t always follow the guidelines. In fact, I’ll send one out tonight if that makes you feel better, and I’ll let you know when it gets signed. If you remind me next monday.
“”Rebel without a clue” is the phrase that springs to mind.”
No, “commenter without a clue” pops more immediately to mind.
We even went over the non-binding nature of the guidelines in the PO post on the topic a few weeks ago. Maybe you were playing hookie?
“Actually they (the Interim Instructions) aren’t (binding on examiners). We were explicitly told as much.”
So the PTO issued Interim Instructions for Examination to examiners and then told them that they didn’t have to follow them? If so, the PTO is in far worse shape than I thought.
However, I doubt that this is what happened. Far more likely is that they told you that Applicants can’t appeal or petition on the grounds that the instructions weren’t followed. But that doesn’t mean you don’t have to follow management policy.
So, again, go ahead and tell your supervisor that you’re not going to follow the instructions, because you don’t deem them to be binding. But don’t forget to tell us how that works out.
“Rebel without a clue” is the phrase that springs to mind.
NWPA, my point is that “solving computer mathematical problems more efficiently” is not like “increasing the horsepower of an engine by adding a turbocharger.” Solving computer mathematical problems more efficiently is still just solving a math problem, no matter how you slice it. Properly applied, 101 precludes patents on methods for solving math problems.
Now, if you would like to APPLY your solution to the math problem to, say, creating an engine with increased horsepower, then be my guest. Hopefully you’ll have some unexpected results to help you get a patent on your new engine.
But granting patents on all the calclulations that go into the patentable invention is really a losers game. That’s the game that most software and “business method” applicants are playing now: trying to get patents to the thinnest of intellectual contributions, the sort of developments that are inevitable and require no “promotion” in the form of a government-issued monopoly. In truth, it’s the fact that the developments are inevitable that drives most of the filing of these patent applications. The more inevitable the development, the more urgent the filing!
Suits me fine Hans,
I have an MBA as well as JD, and Tech Degree (including design credentials). Bring on the more requirements baby!
“what is the rationale for the PTO requirement that practitioners have scientific or technical education/training/experience”
There is no rationale for that requirement if you are a serious Sunner.
Hans–
What about design patents? I would argue that a scientific or technical background could actually be a hindrance to effective assistance with a design patent application.
For all you patent attorneys and agents out there who think that hedging risk and other non-transformative processes should be patent-eligible, be careful for what you wish. If this stuff is patent-eligible, then what is the rationale for the PTO requirement that practitioners have scientific or technical education/training/experience? I mean, does anyone really need a scientific or technical background to write a patent application directed to hedging risk via commodities trading?
>>Is it? Or is it like solving a mathematical >>problem that could be used to increase the >>horsepower of an engine?
There you go again, MM-trollbot. That could? So, the computer is running faster based on something that could be done in the future. Interesting. I suppose the angels that spin clockwise and counter clockwise to represent new algorithms outside of the physical world have something to do with the computer running faster.
Malcolm: You wrongly attributed the quote at Oct 06, 2009 at 01:34 PM to AI. However the following question which you are afraid to answer was asked by Actual Invention, how about showing some intellectual courage and honesty and answer it.
“So tell me Malcolm, why should big businesses have the legal right to steal the original, novel, and non obvious inventions of the small time entrepreneur that just wants to make an honest living and put his/her kids through college?
Mr Heller, if we say that “calculating machines” is a field of technology, started with an abacus and graduated to the electronic machines of today, then an improved calculating machine might well be patentable also in Europe. The statutory exclusion of a computer program, as such, seems to me to be avoided. But as Sarnoff points out, the invention is then in the application of the algorithm, not the algorithm as such.
As I have said, this is not my field. I comment (as ever) to stimulate comment from others.
Ned Heller Wrote: “Think of what you are saying, MaxDrei. Your very argument favors the creation and maintenance of real monopolies built on theft.”
BINGO! Did Max ever respond to this very astute observation? Or did he duck and dodge his way out of it as is usual when intellectually backed into a corner?
This is very much a civil rights issue and Bilski is the new Brown Vs Topeka Board of Education!!!
AI: “Solving computer mathematical problems more efficiently increases the overall utility of the computer as a tool. It is like increasing the horsepower of an engine by adding a turbocharger.”
Is it? Or is it like solving a mathematical problem that could be used to increase the horsepower of an engine?
>>Stern was on the government brief in both >>those cases.
The man behind the Benson opinion in semi-retirement who slaves away endless to rid the world of software patents.
But why does he do it? Why?
“Solving computer mathematical problems more efficiently increases the overall utility of the computer as a tool.”
Not technically true as the computer was always utilizable in that fashion.
MaxDrei, I am not putting down the EPC system. I was showing you how similar the Benson case was to the EPC system when considering the BCD->Binary algorithm. The US Supreme Court and the EPC are very very close in substantive analysis given the opening paragraph of Benson I quoted. They both require, it seems, some solution to a technical problem separate and apart from the improved method of calculation.
In Benson, the lack of a defined technical use for the algorithm doomed it. In Flook, the Supremes condemned its algorithm for the same reason. It was, they said, not tied to an specific chemical process. As such to the Supreme Court, it was no more than a disembodied algorithm for updating alarm limits, everything else in the claim being “insignificant extra solution activity.”
The approaches to the issue in these two cases is almost identical to that in Europe.
The departure between Europe and the States takes place in step 2. There is no step 2 in the States now , that being eliminated in State Street Bank. Before State Street, step 2 would have looked to the purpose of the computerized method, found it to be a business method and declared it to be patent ineligible.
Stern’s brief again calls for step 2 to be reinstated, formalizing the implicit test set forth in Benson and Flook. As noted before, Stern was on the government brief in both those cases.
Now, I find nothing inherently wrong in these two fundamental approaches. What I find wrong is the result in both Benson and Flook, and in any European case that does not recognize the utility of improved computer algorithms, per se, not tied to any other end use. Solving computer mathematical problems more efficiently increases the overall utility of the computer as a tool. It is like increasing the horsepower of an engine by adding a turbocharger. That is useful even if the claim does not go further and define a specific technical utility for the engine.
Jefferson Zhou wrote:
“With two business ideas in mind, I have registered my own small business, and started to look for angel investors to fund the business and get it off the ground quicker. But the current ruling on the business patents really drive me nuts because I am afraid that my ideas will be stolen and unprotected.”
As an Actual Inventor my empathy is with you. However things are not as bleak as they may seem.
First of all you need to remember that the current ruling of Bilski does not ban business method patents, in fact it upholds and reaffirms that business method patents are legal.
Next make sure you get a NDA signed before you discuss your business methods with anyone, even if you have Pats Pending.
Now when dealing with Angels only show embodiments of the invention and corresponding claims that are iron clad Bilski, meaning tied to a particular machine or apparatus or transforms an article. Keep the broader process inventions for yourself until the SCOTUS rules.
Finally do not be dismayed by the very few anti business method patent trolls that vent on this blog. They know their days are numbered so that’s why they are here screaming and acting out. There are some excellent patent attorneys that not only understand 21st century technology and business methods but will fight for you and help you protect your inventions. Just look at the fine work Bilski’s attorney’s did on his brief. I would hire them for my appeal in a heart beat.
Most important, remember that business method patents are your constitutional and civil right. So remain dedicated and fight for your right to pursue the American dream!
May God bless you and your family. And may God bless America!
“small businesses will be not as protected as they once were at least for my case.”
See, that’s where you’re wrong though Zhou. You never were protected. An attorney that couldn’t figure out what the lawl really was simply got you to believe you were going to be protected. The minute someone fought you, you’d go down in flames.
Perhaps Ned.
“Did you notice the larger picture of what your Boss said and just between the two of us, which reading of Alappat it subscribes to?”
I would suspect that my boss would subscribe to my own were I to present him with the case I’ve made for my interpretation. Never the less, you may be right and he may currently subscribe to one similar to your own. He is, after all, a former IBM hotshot and they want it to be the true reading so bad it wouldn’t matter to them one bit whether or not it was the true reading. They have thousands and thousands of patents that depend upon it by now I’m sure. Who wants to see millions of their own dollars of their own work go down the drain? Nobody.
“Think again, 6. They’re not binding on me, or on the courts, but they’re binding on you – at least for the interim. ”
Actually they aren’t. We were explicitly told as much.
AI “If I go invent a new business method/process, series of successive steps, that when applied produces a hamburger faster, cheaper and better tasting than McDonald’s what do you think will happen as soon as I open my hamburger joint?”
Your upstairs neighbor will complain about the smell.
Malcolm Mooney : News flash: if you keep your business methods secret, they are less likely to be stolen than if you published them as a patent application.
Malcolm you are wrong yet again. Very few Business Methods and/or processes can be implemented and then kept as trade secrets. If you were an Actual Inventor and Entrepreneur, rather than a troll that likes to play one on the internet, you would know this. But let’s take this as an opportunity to educate.
If I go invent a new business method/process, series of successive steps, that when applied produces a hamburger faster, cheaper and better tasting than McDonald’s what do you think will happen as soon as I open my hamburger joint?
I’II tell you what! The Guys and Gals from McDonald’s will be over for lunch to observed every thing and write it all down. Next day on commercials all over the world McDonald’s is advertising it’s new McBrilliant System for making hamburgers faster cheaper and better tasting than ever!
And in 800 million stores around the world McDonald’s is using MY invention and I am out of business. And you Malcolm support this!
So tell me Malcolm, why should big businesses have the legal right to steal the original, novel, and non obvious inventions of the small time entrepreneur that just wants to make an honest living and put his/her kids through college?
MM-trollbot wrote: >>>Then why can’t I
’cause you haven’t admitted your mistake. Admit that algorithms do not exist “outside the physical world.” You silly trollbot.
Just Visiting–
Sorry about Wiki, but
link to en.wikipedia.org
There IS protection, but it is THIN, and it is the arrangement of non-copyrightable elements wherein the copyright resides.
Original, but not necessarily novel. Maybe this Supreme court discussion details a difference between novelty and originality, and will inform the court’s decision in Bilski.
They invoke Article 1.8.8 also.
Mooney!
Get back to work. I told you to stop bothering those patent attorneys!!!
Those french fries aren’t going to put themselves in the fry tank!!!
NWPA, I agree that public disclosure is underrated. Thanks for your response and reminder of that, even though my question was posted sloppily and in haste.
The law changed from publication upon patent grant to publication 18 months after filing, largely for international harmonization. What else though, is this 18 months based on? Was it pulled from a hat?
Nowadays with the internet, many things publish in the blink of an eye. I envision instant publication when filing for a patent. I am sure there must be some problem with that though, because some inventions, brace yourself, are actually real inventions! And disclosing those to the public with nothing in return is just opening the door for quick and easy design-arounds.
What then is the solution or happy medium? Maybe the status quo is acceptable, but I would be interested in seeing a full detailed analysis arguing one way or the other why 18 month publication should or should not be the norm.
NWPA: “your brain represents symbols with neurons”
Then why can’t I patent “A human brain with neurons storing a new algorithm, wherein said algorithm comprises blah blah blah…”
The answer is that you can, at least you can on your planet.
Alun “Malcolm, in your example, the first and true inventor is actually Bob the transit guy”
How can you make such judgments without seeing the claims, specification and the file history?
“Your example proves nothing.”
It wasn’t intended to prove anything. It is, however, very similar to the way the real world works, particularly when it comes to “software inventions.”
“But the current ruling on the business patents really drive me nuts because I am afraid that my ideas will be stolen and unprotected”
News flash: if you keep your business methods secret, they are less likely to be stolen than if you published them as a patent application.
“the ineligibility of floor plans for copyright protection.”
Case law pointer please?
>>Do that qualify as “using” the prior-invented >>algorithm then?
Jules one of the purposes of the patent system is disclosure that allows other people to improve the invention. Disclosure is one of the great under appreciated benefits of patents. Evenhtough few people read patents, since the material is disclosed in the patent applications, researchers feel free to publish articles and discuss the disclosures. Few people appreciate how 30 years ago researchers in computer science would keep secret how their inventions operated.
Readers, I have nothing to quibble about, in the contribution from Hagbard Celine earlier today. He knows his stuff.
Heller, I don’t understand your put down of the European position. I respectfully submit that assessing thread contributions under the principle of synthetical propensity (Google will deliver cites to EPO Decisions, including T_0190/99) will get you further than you are getting using your present approach.
This whole software/algorithm discussion reminds me of a parallel in copyright law–the ineligibility of floor plans for copyright protection.
I’m a patent specialist, not a copyright specialist, but I seem to remember that some court decided that there could be no expressive content in a floor plan because there was effectively a finite number of floor plans that was possible, therefore it was a matter of selection and arrangement, and not of “creation”.
Same would apply to algorithms, software, and anything based on any logic system, except for the development of a new logic system.
The floor plan thing has always bothered me. What if an applicant could prove through empirical evidence that a particular floor plan produced greater productivity, or less injury, than other floor plans? That might be worthy of patent protection based on a “newly discovered property” of an existing or otherwise obvious floor plan, but runs into problems of inherency.
I’m forced to conclude that this 101 discussion is merely a distraction from the more important business of developing workable 103 and 112 tests and associated jurisprudence.
101 should be a COARSE test, for things that are immediately obvious to all. 103 should be the fine test. After all, OF COURSE software was made by Man. OF COURSE algorithms were written by Man. OF COURSE axioms were described by Man. OF COURSE logical operations were described and subsequently selected by Man.
SC and CAFC, leave it alone, and stop avoiding the real work of 103.
Bilski–improvidently granted.
Would it have been good for Mr. Bubblesort? Maybe, but probably not that good.
However, for Mr. Mergesort or Mrs. Quicksort–they woulda made bank (and deservedly so).
Following zbc’s lead, let’s define eligible subject-matter as “that which, when disclosed to the public, confers a realizable and repeatable benefit that did not exist before said disclosure.”
Does that get us any further, or is it effectively a re-statement of an existing subject-matter eligibility construct?
NWPA: >>Hierarchy: “An “algorithm itself” is a pure >>mathematical abstraction. It’s a symoblic >>description that can exist apart from the >>physical world.
Hahahahahahaha. Now that is the funniest thing I have seen here since last I read one of your posts. Where do things exist without physical form ”
NWPA, how about the algorithm being used by some researcher writing a paper in expressing their derivation of a new equation. That new equation can then be used independently and without the use of the old algorithm used to derive it?
Do that qualify as “using” the prior-invented algorithm then?
“I see no point in excluding software per se, and then granting a patent on software so long as it is claimed as part of a computer. The distinction is not one of substance, but of claim drafting. If there is a distinction of substance, please explain.”
Ned
That’s not a correct understanding of the EPO position.
Let’s take Bilski as an example. The Bilski claims as they stand would be rejected as a non-eligible business method (nothing more than a “business method as such”). A claim to computer-implemented Bilski WOULD be eligible, because the EPO applies the exclusion to the claim as a whole, and any technical elements get the claim past the exclusion.
BUT, when it comes to assessing the inventive step (obviousness) of the computer-implemented claim, non-technical elements can’t contribute to inventive step. So if the only novelty lies in the (non-technical) details of the business method, the computer-implemented claim lacks inventive step because it makes no technical contribution to the art. It doesn’t matter whether the non-technical elements are novel or non-obvious, they can’t contribute an inventive step.
So, “mere computerisation” of a non-technical method DOES pass the EP equivalent of 101, but the requirement for technical innovation means that it fails on 103.
Now, not everyone likes the logical underpinning of the EPO methodology. In the UK, “mere computerisation” isn’t enough to pass “101”. They dissect the claim and judge eligibility on the technical character of the “contribution to the art”. The end result should (usually) be the same as the EPO, you just get there by a different route and use a different weapon to deliver the coup de grace.
Note also, however, if you have a computer-implemented method that has a novel and inventive technical aspect, you can get a claim to your method, you can get a claim to your programmed machine, AND you can get a claim to a computer program product for implementing the method, without needing to tie it to a data carrier. Such a claim might look like a claim to a “computer program as such” that should be excluded matter, but the EPO justifies its allowance on the basis that the real subject of the claim is not merely a computer program, but a component of a technical solution to a technical problem.
And Max,
Yes there are shades of EPO thinking in some of the briefs, including the USPTO’s own: in particular their notion that the real meaning of “machine or transformation” is that anything “technological” must involve a “machine or transformation”; i.e. a claim must be drawn to something having a technological character…
MaxDrei, the fact that the EPC does not allow patents on the medical treatment of humans goes a long way in explaining the tortured claims in cases like Mayo and Metabolite. They end with an “inference” but do not actually require the administration of a drug. So now we know the culprit.
The requirement for some separate utility for computer programs rather that the more efficient solution to a mathematical problem, such as compression, encryption, and the like, it really, really beyond the pale. It makes no sense whatsoever. It is almost like saying, “Well, you’ve claimed the more efficient blast furnace method for making high quality steel, but you can only claim the method with some specific use for the steel. Nonsense. Utter nonsense.
“‘Interim Instructions’ (implicitly non-binding)”
Think again, 6. They’re not binding on me, or on the courts, but they’re binding on you – at least for the interim. Go ahead, tell your supervisor that you’re going to disregard the Interim Instructions because you choose not to recognize them as binding. But be sure to let us know how that turns out.
MD: “With Bilski, I like to think that EPO jurisprudence has something to offer. Tell me, does anybody detect an echo of it, anywhere in any of the Bilski Briefs?”
I haven’t read all the briefs, but I remember in passing at least one mentioned the “European Approach”.
/media/docs/2009/10/08-964-foundation-for-a-free-information-infrastructure.pdf
Section IV.B.1.a
It’s fairly short, but an echo nonetheless =)
MaxDrei: “A computer program, as such, fails to make the 101 cut. A programmed computer survives 101 (Art 52) but may well fail to make the 103 cut (Art 56). Put in the app how the algorithm is the solution to an objective “technical” problem and your programmed computer will end up protected. But if your app reveals no solution to any real life “technical” problem (maybe only a travelling salesman mathematical problem) you will be unlikely to succeed, at the EPO.”
MaxDrei, you really have to read Gottshalk v. Benson. Its opening paragraph reads
“MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Respondents filed in the Patent Office an application for an invention which was described as being related “to the processing of data by program and more particularly to the programmed conversion of numerical information” in general-purpose digital computers. They claimed a method for converting binary-coded decimal (BCD) numerals into pure binary numerals. The claims were not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use. They purported to cover any use of the claimed method in a general-purpose digital computer of any type.”
Once you read that paragraph, one understanding the true utility of the BCD->Binary algorithm, stands appalled. But the whole argument that it must have some separate utility, rather than the more efficient computer program that it was, sound very much like the analysis that takes place in Europe. To anyone who actually builds computers or who programs them, the requirement of a separate utility outside of the computer is dumbfounding and virtually incomprehensible.
Except: look what happened in biotech, where patents were available from the get go. Did those early and outrageously wide claims inspire design-arounds. What effect did they have, on the speed of technical progress? With hindsight, would the US have been better off without the absurdly wide claims of those “pioneer” inventions? And, was it only the prospect of pre-empting an entire industry that got the pioneering research paid for, in the first place? I think…..not.
“Would it have promoted the technological arts? Of course not.”
Hold off on the Of Course Not assumption.
With a patent in place, perhaps design around would have generated even more advancement.
Damm, we shoulda had patents in place a long time ago
I shudder to think of where we would be today if early software developers had been given patents on each of their developments. Does it make sense to lock down bubble sort for 20 years? Would it have been good for Mr. Bubblesort? Of course. Would it have promoted the technological arts? Of course not. Alas, we will never know Mr. Bubblesort’s real name as he was eaten by his starving children.
>>>BTw, nice skirt today 6.
Are you serious? Is 6 a female? If you are a female 6, then good job pretending to be a male.
>>Hierarchy: “An “algorithm itself” is a pure >>mathematical abstraction. It’s a symoblic >>description that can exist apart from the >>physical world.
Hahahahahahaha. Now that is the funniest thing I have seen here since last I read one of your posts. Where do things exist without physical form MM-trollbot? Haven’t we gone through this before that your brain represents symbols with neurons. Apart from the physical world on the head of pin represented by some angels turning clockwise and some angls turning counter clockwise.
Trollbot: you know that computers are information processors just like a human brain.
I’m thinking about my own question. The EPO uses its 103 provision to filter out claims directed to clever computer-implemented innovation in a non-technical field. Such a filtering step arrived in Europe more by luck than judgement, emerging gradually, from hundreds of EPO Technical Board of Appeal Decisions unconstrained by Binding Precedent.
I can’t imagine how 103 can be shaped to perform the same service, in the USA. And I can’t imagine how 101, by itself, can filter as effectively as the Art 52/Art 56 combo does it today, in Europe. Can’t wait to read how SCOTUS works it out.
Heller wrote to me: “MaxDrei, I will not assume that I fully understand anything about European patent law. However, I see no point in excluding software per se, and then granting a patent on software so long as it is claimed as part of a computer. The distinction is not one of substance, but of claim drafting. If there is a distinction of substance, please explain.
For example, how would the EPO handle the claims in Benson? The claims were not to the BCD->binary algorithm per se, but as part of a computer. One claim even described the computer hardware involved and how to manipulate it.” I should reply.
In Europe, you get through to issue only when you tick all the 101-3, 112 boxes. Thus, you need in your app:
1. when it is “DNA”, a use
2. When it is a method claim in an app directed to an electro-surgical instrument, a use that is other than a (forbidden by the EPC) method of surgery or therapy performed on the human or animal body
3. When your invention is an algorithm, a use in a technical field.
After that, the scope of protection you can get out of the EPO can cover all that the Statute allows, but no more.
A computer program, as such, fails to make the 101 cut. A programmed computer survives 101 (Art 52) but may well fail to make the 103 cut (Art 56). Put in the app how the algorithm is the solution to an objective “technical” problem and your programmed computer will end up protected. But if your app reveals no solution to any real life “technical” problem (maybe only a travelling salesman mathematical problem) you will be unlikely to succeed, at the EPO.
Is Benson the one about curing rubber? That’s technical. We can probably all agree, that Benson solved a technical problem, so his algorithm is a clever, patentable contribution to a field of technology. What Buckets has in mind is more borderline. Real cases in the field of “data processing” can go one way or the other, depending on the facts. But “a puzzle at the margin” is meat and drink to lawyers. SCOTUS will soon give us its vision, where the margin ought to lie.
Meanwhile, it has been crystal clear for many years now, everywhere in the world (Japan, China, India, Korea, eastern Europe) what the drafter has to do, to get protection for a computer program in Europe. IBM knows. Will you ask somebody from IBM?
I lack the time to read the Amicus Briefs. With KSR, I had hoped that SCOTUS might have some time to muse on EPO-PSA. With Bilski, I like to think that EPO jurisprudence has something to offer. Tell me, does anybody detect an echo of it, anywhere in any of the Bilski Briefs?
Malcolm, in your example, the first and true inventor is actually Bob the transit guy, so he can file an interference and end up the owner of the patent (or in practice his employers will). Of course, most people would rather have teeth extracted without painkillers than file an interference, but that’s just a detail. Your example proves nothing.
6, I will concede the point on hedging. I also agree with Stern’s test and it has the beauty of being fully based in Supreme Court president and in the Constitution.
We still, though, have to slay the dissection side show that is an unnecessary relic of Flook.