Watch the Anti-Software-Patent-Movie starring Ben Klemens, Jim Bessen, Dan Ravicher, Eben Moglen, Karen Sandler, and Richard Stallman.
Watch the Anti-Software-Patent-Movie starring Ben Klemens, Jim Bessen, Dan Ravicher, Eben Moglen, Karen Sandler, and Richard Stallman.
“but this robot can fold towels. ”
Yay? I could use one in my bathroom that’s for sure.
“Note that the robotic platform is not the invention. My understanding is that it was developed by someone else and used by these folks who wrote the software that allowed it to fold towels.”
Note that it was. Your understanding is that the original inventor and other users were entirely too lazy to program his creation to fold towels. At some point I’m sure you plan to arrive at a point.
“Reading Justice Stevens’ Flook decision and Diehr dissent, I’m not quite sure how he would come out on whether this one is patentable subject matter.”
The robot itself was very likely plainly patentable subject matter at the time of its invention. (You’ll note though that there was probably no application filed on it, just as is the case with most of these make it yourself robots) Claiming the robot’s memory with instructions to fold a towel? Give me a fin’ break.
Look Broje, I have no doubt that this was complex software. It may have taken a single programmer longer than one night to write it. A lot of machines take longer than one night to operate. Should we then turn all those machines into “new machines” everytime someone bothers to use them? I’m more than a little bit skeptical on this issue.
Ping I already told you dude, if you want to read my full response to your “challenge” then go look up the pages I’ve already written in response to it the last time it was presented to me. They’re not but a month hot off the press. BTW, it might not have been Broje that presented it, it may have been NAL. Shortly before she acknowledged my win in Ariad and went into shamed hiding.
” Do either of you understand EE/CS?”
Apparently sht ton better than you do sir.
“Have either of you ever worked with a start-up in the EE/CS space?”
Yes.
“Have either of you ever helped a start-up in the EE/CS space get funding?”
Nope. But if you wanna help me start a start-up in the EE/CS space and get some funding then you’re welcome to anytime. I’ll go 50/50 with ya. If, IF, you can avoid making lame excuses to write claims for my inventions.
“Have either of you ever worked on selling or buying a start-up in the EE/CS space?”
Thought about buying one myself one time. It was too expensive. By a lot.
“Or are you speculating from your basement MM as everyone suspects.”
I’m speculating from my sunny apt thank you very much.
Anyone think that work of this kind is unworthy of patent protection?
link to newscientist.com
“please make an attempt”
Hey NWPA, I have 6 in grand court right now.
And why you be wasting time with questions you know the answer to? Everyone knows that MM and 6 don’t have EE/CS background and minimal understanding. That has never stopped opinions before, so why make that qualification now?
And, MM and 6 please include your qualifications for answering these questions. Do either of you understand EE/CS? Have either of you ever worked with a start-up in the EE/CS space? Have either of you ever helped a start-up in the EE/CS space get funding? Have either of you ever worked on selling or buying a start-up in the EE/CS space?
Or are you speculating from your basement MM as everyone suspects. (probably from the basement of the PTO.)
Good questions Broje. Please make an attempt to actually answer them 6 and MM. I don’t think I have ever seen you answer questions fairly MM. Please do not pick out a sentence and make a snarky remark.
MM: The software patent and the biz method crowd is due for multiple spankings, however
You are a nut. And an ignorant nut at that.
Money, 6, et al.,
Here we have what is being hailed as an important breakthrough in robotics.
link to eecs.berkeley.edu
Handling non-rigid objects is an extremely difficult problem, but this robot can fold towels. Note that the robotic platform is not the invention. My understanding is that it was developed by someone else and used by these folks who wrote the software that allowed it to fold towels.
Reading Justice Stevens’ Flook decision and Diehr dissent, I’m not quite sure how he would come out on whether this one is patentable subject matter. Clearly, the method of folding the towels is quite different from that used by people. We don’t need to perform all of those steps of twisting and turning and inspecting the towels to figure out how to orient them for the folding. Sometimes, it seems Stevens merely wants the process being carried out to be different, and other times it seems like he actually wants new hardware to be present. How do you guys think he would rule on 101 here?
And now, how about you? Do you think there is any claim that could be written to protect this invention and that should pass 101? If so, what kind of claim is it? What is the magic format and/or magic words?
6,
The grand court is waiting for your answers.
Showing someone the money… still doesn’t correct the problem.
I often wonder when a child dies.. does the mother expect the world to stop while it takes a breath, for her child. OF COURSE SHE DOES!
Does the Country expect the same when it is crossed. IT SHOULD! BUT DOES IT?
Malcolm,
Must drive you nuts then for your self-policed world to fall under teh scrutiny (and attack) of outsiders.
The spankings won’t be confined to the “software patent and the biz method crowd” because, in part, softwarea and biz methods pervade (near) everything.
ping The humourous thing is that the changes underway in patent law and the sea of anti-patent rhetoric (arising in the new art) promise not to stop at the new art and will affect your backyard too.
Well, the thing is that my “backyard” is pretty much self-policing. People stick their noses out from time and time and pretty much inevitably get their noses sliced off. And the rest of the community pretty much shrugs it off because, for the most part, we saw it coming and, hey, they were asking for it.
The software patent and the biz method crowd is due for multiple spankings, however.
you dislike the new art on principle, rather than directly on law
I dislike some of the new art (e.g., social networking b.s.) but not on any principle except that so much of it is corporate-manufactured trend-mongering, piffle that people “need” no more than they “need” the the latest Taco Bell menu item.
But if you pay attention (and I know you have been) you understand that my main objection is, in fact, that the USPTO has been ignoring and subverting patent law for many years when it comes to the examination and prosecution of claims in the computer-related art units. Meanwhile, folks who go apeshxt and claim that every $5 fee increase is a “taking” tend to fall suspiciously silent when the bizarro world of Beauregard claims is discussed.
Malcolm,
I see that you still choose your words precisely – “capable of”
I thought you liked older, dour guys, so why do you set traps for children?
Your desire to see the “structural differences” (bias from your own backyard), along with your innate ha_tred for the new art (“children”) really poisons your posts.
The humourous thing is that the changes underway in patent law and the sea of anti-patent rhetoric (arising in the new art) promise not to stop at the new art and will affect your backyard too. My big box ‘o electrons-protons-neutrons is just a different abstraction from your box of atoms. Sure the rules of the art are different (claiming norms), but that’s to be expected given the inventive power of the new art (sorry, I know you won’t like hearing that).
It’s no wonder you purposely conflate 101/102/103 in your lashing out at the young puppy – someone taking a closer look will plainly see that you dislike the new art on principle, rather than directly on law, and the easiest way to dispose of the entire branch (I think anything falling short will not please you) is to rule it out on 101 grounds.
The problem will be, as I mentioned, the anti-patent police won’t stop there. The bio field is the very next target.
“THEY CAME FIRST for the Communists,
and I didn’t speak up because I wasn’t a Communist.
THEN THEY CAME for the Jews,
and I didn’t speak up because I wasn’t a Jew.
THEN THEY CAME for the trade unionists,
and I didn’t speak up because I wasn’t a trade unionist.
THEN THEY CAME for me
and by that time no one was left to speak up.”
– Martin Niemöller
Ned: Programming makes computers both physically and functionally different. This should be enough to make them patentable subject matter, provided they also have the requisite utility.
A method of programming a computer could be patentable subject matter. And the computer could arguably be patentable subject matter if it was claimed properly.
Recite the structural differences in the claim to the computer, Ned, and I’ll have no issues, nor will the law.
The gift that keeps giving to the children practicing in the computer-related arts is that, for reasons that they are frightened to articulate (“it’s hard!!!!!!”), they are allowed to prosecute composition claims that describe only the new functions, and none of the new structure.
Imagine I invented a bracelet for treating rheumatism and the PTO grants me a claim to “A bracelet, wherein said bracelet is capable of treating rheumatism.” That shxt don’t fly, unless of course the bracelet comprises a computer and “treating rheumatism” is defined as “identifying which of your favorite friends has disagreed with you online about a book” or some other bogus utility.
IANAE, I think I understand you now. You would agree that if I disclosed computer hardware in terms of an ALU, accumulators, stacks, instruction registers, program counters, index registers, pipelines, decoders, I/O and memory, and then further defined the specific bit settings of the memory that exactly define the sequence of program instructions and data I wish the machine to execute, you would agree that I would be claiming a machine — as the corresponding structure is all hardware.
The vice in current software applications is, according to you, that we are claiming a machine functionally, and do not have corresponding “structure” described in the specification, but simply have more functional statements. In the end, you suggest, that what we are really disclosing is a machine process and we should claim that way.
Close?
You know, way back, we actually used to do this. We actually included a program listing and perhaps the actual machine code as an appendix.
Well, you know 6, I am no biologist and I have a hard time understanding just how “isolated” DNA is not the same thing as “wild” DNA when both perform the same claimed encoding function.
I explained this in words pretty much any high schooler would understand, Ned. What is your problem?
mike,
I know that you were not referring to any particular legal definition.
That’s why I was toying with you. You are on a legal blog. Might help if you kept that in mind. In certain circles, legal definitions make the difference of whether you hear a trumpet or not.
As to the “no real difference between code and data,“. Do you know what the Printed Matter Doctrine is (alternatively, the pWinted Matter Doctrine)? If you want to make a statement and have it mean more than monkey scratch, you might want to understand the references involved. As it is, your statement is simply flat out wrong (ahh, another trumpet).
IF and “All you need to do…” extract, compile and execute. Except that’s a bit more than viewing it, isn’t? And unless you go through those additional steps, you haven’t functionally changed the machine even if you have “used” the machine to view that source code now have you? And doing more than viewing that wasn’t an option given to you was it (I didn’t say that you had an extractor or compiler)? And even if you take that route, (whoops not so fast – The second part of my answer to you must wait until I get 6’s reply – don’t want to ruin the plot).
So obviously, “displaying” is simply not the same as “configuring”, and merely displaying the pdf will not configure your machine, will it? And will ther be a difference (functionally) to your machine which pdf is displayed? IANAE’s premise holds true (OK, I’ll drop a plot hint – just as “displaying” is different than “configuring”, the terms of “using” and “configuring” are not synonymous).
“ but the bytes stored in memory would be completely different, meaning that the individual electrical states in the memory circuits would be completely different. That would make my machine a completely different machine from yours”
Again, your lack of legal sense hurts you my pal. The legal language is “configured to”. Is your adapted machine, even having the bytes stored in memory being completely different, still “configured to”? Of course this also weaves back into the plot as the story previously given by 6 on historical distinguishing and all that. But that’s a different web to weave.
@ping: I wasn’t referring to any particular legal definition of anything, I was talking about the fact that there is no real difference between code and data. Want an example of what I mean? In your fourth version of the ‘great hall’, you allow your opponent a PDF copy of the source code. You think that this is an ‘unconfigured’ state. All you need to do to execute the same code is to extract the source from the PDF and compile it.
If you’re using a compiled version of the code on your machine, I can extract the code, and then use it in an interpreter, which would mean that I would be using the exact same source code on a circuit-for-circuit identical machine, but the bytes stored in memory would be completely different, meaning that the individual electrical states in the memory circuits would be completely different. That would make my machine a completely different machine from yours, if we accept the idea that different memory configurations are different machines.
“You sincerly don’t think that LOADING information onto a machine is not USING IT? Sincerely? I’m pretty dam sure you cannot load information onto any computer I’m aware of without USING THE COMPUTER.”
Just got back and I see you have more than one post – I won’t read the others just yet.
I told you I was lazy and I see that “using” should have been spelled out in more detail for ya. I might even buy your expanded def, but first I need two answers from you. Does the included use of “configuring” (which in my mind was more along the lines of making than using – do you use something in the process of making it, before it is completely made?) make the machine after “configuring” a different machine than before “configuring”? Why or why not.
(keep in mind as you delve upon your answer the Supremes rebuke to that famous telecommunication inventor about “by any and all means“).
But, if they are different, and the isolated DNA has some utility that wild DNA does not, then it seems to me that isolated DNA should be patentable subject matter.
1. Whether it has a different utility from wild DNA is not relevant to 101. As long as it has some utility, that should be enough, even if it’s the same utility. Not every patented invention has a brand new utility.
2. It does have a different utility. The one Myriad is using it for.
3. If a useful isolated gene that does not exist in nature is patentable subject matter, a useful isolated gene that does exist in nature is necessarily patentable subject matter (though arguably not patentable under 102-103).
What am I missing here in your argument?
A claim to isolated DNA claims the exact structure of the molecule. A claim to a “structurally” programmed computer doesn’t claim the “structure” that’s different – only its function. Which is fine, if you like product-by-process or means-plus-function claims, I guess.
Wait… the movie ridiculed the Fed Cir pretty badly. Aren’t they the same Fed Cir that refused Bilski their patent, because it must transform something?
So didn’t the Fed Cir do what the movie-makers wanted them to do? Lay off!
Well, you know 6, I am no biologist and I have a hard time understanding just how “isolated” DNA is not the same thing as “wild” DNA when both perform the same claimed encoding function. But, if they are different, and the isolated DNA has some utility that wild DNA does not, then it seems to me that isolated DNA should be patentable subject matter.
Now I do understand computers and programming. Programming makes computers both physically and functionally different. This should be enough to make them patentable subject matter, provided they also have the requisite utility.
What am I missing here in your argument?
The problem is, it doesn’t get us beyind the simple question of whether or not anyone knows HOW the programmed machine is “new”. The answer is, they don’t.
That’s why they claim it in
product-by-processBeauregard format, I thought.After having skimmed your grand hall challenge ping, I recall that I already did pass your challenge. Broje presented the same thing in slightly different words not a few weeks or a month ago. Go look up that post if you’re curious about my full response.
However, I will agree with you that I “want” to “expand “use”” to include the “configure” portion of USING a computer, because people can “use” computers to make “upgrades” (i.e. configurations) to the very computer being “used”. The thing is that I don’t need to “expand use” to include doing that, because it is already in the definition ya jackas. And there is no meaningful way to distinguish between the two. You configure a computer by any of the standard ways and you had to have used it. (there may be some exotic processes that don’t involve using the computer)
“Here “use” does not mean “configure”. You will run into the same telecommunicaiton device “by any future means” problem that the Supremes already addressed if you try to hold the position that a computer, through its “use” encompasses all future possible states of the machine. ”
It most certainly does.
And I’ll hardly run into that problem. The same USSC you wish to discuss just recently expressed many of it’s own member’s opinion that to suggest your point of view is valid is outrageous to the point of absurdity. See Bilski transcripts. Remember, I was there mo fo. I heard some of the comments being made by the justices. I saw the downcast looks on the faces of software practicioners. I saw their concern as they walked out. I heard their concessions spoken directly to my face. He ck, rather than being all too happy about it, I rather felt sorry for them. It was indeed a day of rude awakening for many of them. Many of them had casual conversations in the streets where they related to one another their own ignorance of how their claimed structures actually structurally differ from the old structures and how they felt this ignorance would impact their jobs going forward. Specifically, they were quite concerned about how much of a job they would have period.
Just fyi I do believe I’ve read the decision to which you refer, and iirc the “configuration” at issue there was an actual physical configuration set down quite clearly. In the bs claims at issue in this thread you don’t actually tell us anything about the “actual physical configuration” (nor does your inventor know what it is), you simply tell us the “result of the configuration” and state that it was configuredlol in such a way as to acheive that.
Now I really need to do a bit o work before I leave so I’ll ttyl.
“THAT should get is beyond the simple question of whether a programmed machine is new.”
The problem is, it doesn’t get us beyind the simple question of whether or not anyone knows HOW the programmed machine is “new”. The answer is, they don’t.
Well at least we made progress. Both IANAE and 6 agree that a programmable computer is physically different depending upon the programming. THAT should get is beyond the simple question of whether a programmed machine is new.
Now turning to the printed matter doctrine, the reason the machine with writing on it is not patentable is that the machine is functionally the same. Not so with programming. The machine with different programming operates differently.
This should get us by Section 101 and into Section 112 and 102.
Now, we learn from the Aristocrat cases that the corresponding structure is the programming. In a sense it is, but it really is a computer with the programming, not the programming disembodied.
With this understanding, and I think it is correct, if the specification discloses programming for use on a programmed computer, I think there is sufficient corresponding structure to satisfy Section 112 .
This would leave only Section 102 and 103 to deal with.
Should be simple.
So why is it not simple? Benson? Flook?
Utility!
“v”You have your machine and I have mine. I configure my machine (load it with software). Note that I have not “used my machine yet. I have not run the software, I have merely configured the machine.”
I figured I’d just go ahead and skim your post right fast. You sincerly don’t think that LOADING information onto a machine is not USING IT? Sincerely? I’m pretty dam sure you cannot load information onto any computer I’m aware of without USING THE COMPUTER. It might be possible, by some exotic process, but it sure as f isn’t the standard way of doing so.
Your grand hall challenge probably isn’t going to end up being that hard if I don’t even have to read past the first paragraph to knock a huge hole in your reasoning.
“Engraving instructions on the handle of a hammer fails WMD. ”
Is a hammer with such instructions not a CRM? Hmmm, I think it is.
Oh and sorry I missed your great hall challenge posted way above until now, I’ll get back with an answer shortly, I think should do some work.
Sequence of steps or sequence of informational blips?
You know, like in gene patents. A series of zeros and ones, with the occasional two.
“Will you accept a sequence listing?”
Sequence of steps or sequence of informational blips? If the later, seems reasonable to me.
“Even if they are means plus function claims, could you possibly consider that the structure can be specified as “structure by process” in the specification, in the same way that “product by process” can be enablingly disclosed and suffiently described in the specification? Can you consider that the computer can be claimed as product by process, by claiming the steps for programming it?”
“”structure by process””
LOL
“Can you consider that the computer can be claimed as product by process, by claiming the steps for programming it?”
You might could and maybe even for a CRM, but I have yet to see a claim that states:
A computer readable medium made by the process comprising:
pushing “(” on a keyboard;
pushing “a” on a keyboard;
…; and
burning the information in a compiled program executable to a CD.
Nor have I seen:
A computer made by the process comprising:
pushing “(” on a keyboard;
pushing “a” on a keyboard;
…;
burning the information in a compiled program executable to a CD; and
reading the contents of the CD and making a computer .
F it, I can’t even continue that hypothetical. I’m loling already.
“Empty words 6 – until (or if) you can rise to the occasion in the challenge of the great hall.”
Our courtrooms generally aren’t that great of halls, save perhaps for the Fed. Circ. courts and USSC. They have really nice facilities.
“Sure man, all they gotta do is tell us, structurally, what the contents of the memory are.”
No they don’t.
“Now, if they attempt to claim that same article structural arrangement functionally don’t be surprised if I hit them with a ‘super enablement’ 112 1st. And don’t be surprised when, magically, it gets upheld.”
What color is the sky in your world?
“Actually it is Mike.”
Empty words 6 – until (or if) you can rise to the occasion in the challenge of the great hall.
And even then, we may be (cake)walking down a similar path to your other definitional tendency.
Just because you want to conflate the words doesn’t make it so.
The industrial age meets the information age. Building industrial quality information machines is expensive and the stakes are high. Those who ante-up to make it happen want the means to improve their odds. Moreover, they’ll make sure those who make the rules governing the means appreciate that there are financial concerns.
Sure man, all they gotta do is tell us, structurally, what the contents of the memory are. No biggie.
Will you accept a sequence listing?
“Absolutely not mike.”
Actually it is Mike.
“6 and IANAE, could you possibly consider that a machine that has a stored program memory is physically different depending upon the contents of the memory?”
Sure man, all they gotta do is tell us, structurally, what the contents of the memory are. No biggie.
Now, if they attempt to claim that same article structural arrangement functionally don’t be surprised if I hit them with a “super enablement” 112 1st. And don’t be surprised when, magically, it gets upheld.
Also don’t be surprised when they admit for me on the record that any ol’ structure will do, including a mere 01 on a cd, for telling a computer to do anything it is capable of doing. Then don’t be surprised when I reject the claim over Britney Spear’s first album “One O 2 I LUV U” (iirc).
broje Even if they are means plus function claims, could you possibly consider that the structure can be specified as “structure by process” in the specification, in the same way that “product by process” can be enablingly disclosed and suffiently described in the specification?
Product-by-process claims are essentially method claims. How much of your clients’ money do you waste filing these claims in addition to method claims?
“Your distinction between using a computer and configuring one is illusory.””
Absolutely not mike. It is a mistake to interchange the words. Of course, you have to understand the Written Matter Doctrine – if you don’t understand that, I might as well be speaking Greek to you.
Let me give full credit to IANAE for setting the distinction: You can use a computer that displays a pdf of text (or you can use a computer that displays comments of a blog, those comments being the witty challenge of proving the difference between two machines in a great hall, even), such “use” may be of the WMD section of displaying, which does not functionally change the machine. A machine built to display pdf files cares not which pdf files it displays.
However, configuring a machine to display pdf files and something different, let’s say the ability to recognize a certain situation and taking a subsequent action, such as making a trumpet sound whenever a poster named ping wins a battle, gives you a different machine. The change in configuration is a visceral change in capability. Without a change in configuration, your first machine cannot perform as the second machine can (of course, I am being lazy here and assuming that the pdf functionality does not include the trumpet function – otherwise, I would just change my hypo to include a suitable difference).
Dr. Frankenstein, the microsurgery was a success!
So with your new machine you will have to turn down the volume because of the constant trumpet sounds.
You and yours have a LOT of targets to destroy. Good luck with that.
Good point. I’ve never seen an examiner successfully reject five independent claims at once before.
“Could you possibly consider claiming that physical difference? Could you possibly consider that claiming “instructions for doing (whatever)” is at best means-plus-function and limited to the corresponding structural differences of the physical memory that are described in your spec and their statutory equivalents?”
Even if they are means plus function claims, could you possibly consider that the structure can be specified as “structure by process” in the specification, in the same way that “product by process” can be enablingly disclosed and suffiently described in the specification? Can you consider that the computer can be claimed as product by process, by claiming the steps for programming it?
Software patents I write tend to have all kinds of independent claims: Means plus function; Product by process; Apparatus; Method; Beauregard. I hope no one ever buys your hopelessly strained interpretation of the lawl to try and get rid of one type of claim, and then buys your next redonkulous reinterpretation to try and get rid of another. You and yours have a LOT of targets to destroy. Good luck with that.
When it comes to “software” and “computers“, people say an awful lot of irrational stuff without ever stepping back to realize it is irrational.
Let’s take the phrase: “general purpose computer”.
What a load of @#$%%^ !!!
Rather than waxing philosophical here, allow me to reprint a sarcastic comment I left on another blog:
– – – – – – – – – – – – – – – – – –
Dear All-wise and All-powerful Patent Partner,
The other day I was studying two for-sale ads on eBay.
One was for a general purpose computer that was advertised as being able to emulate a Turing machine.
The other was for an actual Turing machine.
I was debating with myself as which one I should buy. I was thinking, why buy the slower machine that merely “emulates” Turing’s Machine when instead I could purchase the genuine article?
The sales price seemed reasonable.
But then I started to worry about costs of operation. This Turing Machine won’t be very “useful” to me if my electric bills exceed my ability to pay them.
But at that point the computations became too complicated for my simple, businessman’s brain. Maybe you can help me out?
So let’s say the Turing tape is made of an ultra thin, super strong and never wearing out material having a width of 1/4 inch and a mass of just one nanogram per square meter. What would my electric bill be if I needed to run a computing operation that must advance the tape from one end to the other in less than half of a human lifetime?
Thank you in advance for your help all wise patent practitioner. This business man only knows how practice business methods. Computations that involve physics are just too much for me.
Sincerely yours,
Turing Machine collector
Oh, I know the difference, and I’m not saying I necessarily agree with what I’m saying myself, but some assumptions need to be challenged.
The hammer is different by virtue of the instructions. Is that no more than printed matter? What about packaged drugs and second medical uses?
If the method of use was patentable, so I could stop you using the hammer in that particular way, why shouldn’t I be able to stop you selling a hammer with the instructions inscribed on it? And if I could do that via contrubtory infringement why shouldn’t I just claim the “modified” hammer as well as the method of using the prior art hammer?
You don’t know the difference between direct infringement and contributory infringement?
Also, this isn’t a question of “who would it harm?” or “why shouldn’t it be easier for me to sue you for something I was going to sue you for anyway?”. This is a question of “how is your hammer different from the prior art hammer?”
(what does WMD stand for, apart from Weapons of Mass Destruction?)
pWinted Matter Doctrine.
“Why should a hammer engraved with instructions for using it in a new and non-obvious way not be patentable?
Because hammers are known in the prior art.”
A hammer with those instructions on it isn’t known.
If the method of use was patentable, so I could stop you using the hammer in that particular way, why shouldn’t I be able to stop you selling a hammer with the instructions inscribed on it? And if I could do that via contrubtory infringement why shouldn’t I just claim the “modified” hammer as well as the method of using the prior art hammer?
Just musing now – how different is “writing” executable code on a hard disk or in semiconductor memory from writing instructions for use (a different kind of code) on a hammer? The code is processed and executed by a human brain in the latter case and by a micrprocessor in the former…
I don’t think you’ve refuted any of my points at all, deftly or otherwise.
(what does WMD stand for, apart from Weapons of Mass Destruction?)
@ping: Your distinction between using a computer and configuring one is illusory. Using a computer is configuring one, and vice versa. Unless, of course, you’re referring to a machine that has toggle switches on the front panel, so that loading an OS is actually different from using the machine normally.
@step back: As one of the ‘crazies’, I would not term your use of the quadratic equation in a pacemaker to be either software or math as such. It’s a particular use of it, and it wouldn’t preclude me from using the same equation with the same coefficients in my fancy new rubber curing process, or getting a patent for it.
You also picked a pretty bad example of a piece of math with no direct, useful applications. It is used, for example, in ballistics calculations, and even the ancient Egyptians and Babylonians used solutions of it for geometrical and engineering purposes.
could you possibly consider that a machine that has a stored program memory is physically different depending upon the contents of the memory?
Sure. Could you possibly consider claiming that physical difference? Could you possibly consider that claiming “instructions for doing (whatever)” is at best means-plus-function and limited to the corresponding structural differences of the physical memory that are described in your spec and their statutory equivalents?
In Deener all the components were old, the method called for using several old machines in a method to process grain.
So, patentable method then?
6 and IANAE, could you possibly consider that a machine that has a stored program memory is physically different depending upon the contents of the memory?
>>Care to address that argument, then?
A special purpose computer can be built to run the method. A machine can be built to perform any circuit function which by your arguments would render all ee patents unpatentable.
In Deener all the components were old, the method called for using several old machines in a method to process grain.
Some interesting discussions here, but some incredibly awful misinformation as well.
vexorian, you have been sadly misinformed if you really think that patents for physical stuff come with blueprints and all.
In before: “That’s like saying a house becomes a different structure when you open and close the doors and windows.”
Care to address that argument, then?
You can even stick to your example of magnetic media, so you don’t have to distinguish transistor memories where you pretty much literally are opening and closing doors to write the instructions. But then I guess you’d only get a patent on the “structure” of a computer-readable magnetic medium.
I ha_te the Ha_te filter.
Another witty post swallowed up.
IANAE, the way that you deftly handle the critics here is one reason you are my hero. It’s a shame that neither Hagbard nor NWPA realize that all they need to do to defeat your position is to invoke the WMD.
Engraving instructions on the handle of a hammer fails WMD. However, “engraving instructions on a general purpose computer does not fail WMD.
WMD devastates your “isn’t terribly persuasive” position because it simply doesn’t matter that even distance micro-surgery changing a computer memory (that memory being nothing more than…) is still enough of a change to create a new machine because of WMD. Basically, the power of the computer is its ability to become a new machine. Ya can’t fight that power.
“That would be state of the hard disk and/or the semiconductor memory, or equivalents thereof, that are physically altered by the programming. – Great. Claim that, then.”
That’s what they do. They claim that by stating “…configured to…”.
Even with all your might, you would fair no better than 6 against me in the contest of the great hall as I laid out above.
If you even want a third battle, we can lay out the situation as you have described in that 6’s initial machine without software comes with a paperback manual with every line of software written down in one great cookbook. Sitting next to the machine it is useless. But if the machine is configured with that code, it must be changed. I still win.
You even lay out a scenario in your own arguments somewheres on these threads showing that you understand WMD (I don’t understand why you are afraid of embracing it fully – but that’s your issue, not mine). Let’s have yet another contest wherein I spot you a computer changed enough to display pdf files on a monitor. The great big manual/cookbook is reduced such that the text is viewable and displayed on the monitor. Now you can read to your heart’s content, but your machine still fails WMD and you still lose to my machine. Your machien still is not the same as my machine. Your machine still is not configured, and cannot perform the same as mine. I still win.
USPTOMooney sucks axx and can’t apply the law correctly. Just a thoughtThose of you who think that the structure of computer memory does not change when it is programmed have a fundamental misunderstanding of how computer memory works. It’s basically an array of magnets that get flipped over to be positive or negative.
In before: “That’s like saying a house becomes a different structure when you open and close the doors and windows.”
That is the real question here, is it not?
No, the question is whether you can get a patent claiming a prior art computer with stuff written on it.
The 6’s and INANE’s of the world make a strong case that when the machine is unchanged, causing it to operate differently does not create a new machine, but a new process. Now such is clearly claimable as a process under Section 100(b):
“The term process means…a new use of a known…machine”
I think they would further agree that selling a machine configured to execute a patented machine process would be an infringement, but only as contributory infringement.
I think they would further agree that selling a program on media that would cause the machine to operate in the infringing matter would similarly be an infringement either as contributory or as an inducement.
So the only question that remains is whether allowing patents on the “configured” machine or article manufacture somehow does fundamental damage to our patent system because it would convert that which was contributory infringement into direct infringement.
That is the real question here, is it not?
Why should a hammer engraved with instructions for using it in a new and non-obvious way not be patentable?
Because hammers are known in the prior art.
If the use of a computer could be characterized as such,
Are you saying it can’t?
Bear in mind that new software seems to run perfectly well on prior art computers, without even inserting new physical memory media into them. You can send instructions over the internet to a prior art computer to carry out the method according to your claim.
I suppose you could argue that what you’re really doing is sending instructions over the internet to a prior art computer to perform transistor-level surgery on itself to become a new machine, but that argument isn’t terribly persuasive once you remember that memory is nothing more than a computer’s way of writing stuff down.
Unless your computer becomes SkyNet. Then you can have your patent. We don’t want to upset SkyNet.
A computer programmed to perform a particular task is, by definition, physically different from an otherwise identical computer without the programming. Or do you think that computers are programmed using pixie-dust?
Why should a hammer engraved with instructions for using it in a new and non-obvious way not be patentable?
>>an old machine in a new way
If the use of a computer could be characterized as such, then every method that uses a hammer would be a method for using a hammer in a new way and would be unpatentable.
The tool of the hammer is used in carrying out many methods. Those methods are not all subsumed into the hammer invention.
So, like I said two days ago in this very thread, you have a (potentially) patentable method for using an old machine in a new way, and an unpatentable programmed machine.
The tool of the hammer is used in carrying out many methods. Those methods are not all subsumed into the hammer invention.
The hammer allowed people to drive metal into wood. The computer allows people to process information.
>>A program is just instructions for using >>existing hardware.
A program is an information processing method. A tool called a computer can be used to carry out the method. Many computers can be used. Many different architectures for computers can be used. Hardware can be built that does nothing else but run the method.
The method takes time and energy and space to transform represented information.
Uh-huh, but you don’t need to modify (program) a hammer to hit different things with it.
A program is just instructions for using existing hardware. Whether the instructions are written down (in a computer-readable memory, say) or not, the hardware doesn’t change. You could include the “program” in a pamphlet packaged with the hammer, or even write it on the handle. Structurally different hammer now?
That would be state of the hard disk and/or the semiconductor memory, or equivalents thereof, that are physically altered by the programming.
Great. Claim that, then.
Well said Ping. Nice job.
6,
I readily admit my laziness, and this is no exception – I lifted the following thought experiment from pages past and wanted to see if you had an answer. Of course, I have added some of my flair, but I must apologize to RWA, as I could not think of an appropriate song.
Two general purpose computers fresh from the factory are delivered to us in a great hall filled with the courts and the leaders of the Office for our great deciding contest. And by fresh, I mean really fresh – no software has been loaded at all to either machine.
Each machine is identical down to the last
circuit.
You have your machine and I have mine. I configure my machine (load it with software). Note that I have not “used my machine yet. I have not run the software, I have merely configured the machine.
The grand contest is to see if the machines are indeed the same by seeing what each machine can actually do and if the non-congfigured machine, strictly by your “use” (and you do not have the invention of the new configuration) can match my configured machine.
Ready set go.
I’m done.
How about you?
What? You’re not? How can that be? We both have the same machine, right?
Oh I see, your software-less machine can only “do” a paperweight or great electric heat trap.
So I win the contest.
Of course, you want a rematch and want to start with “some” software. Cocky with my win, and in full knowledge that I have just proven that two machines that seem to have teh exact same physical components can indeed be different machines, I accept the second contest.
In the second contest, your machine has been loaded with software to the PHOSITA level of a general purpose machine. My machine has, like before, been configured for the special purpose of the contest. Here, you are barred from the hindsight knowledge of my invention (for a PHOSITA, let’s for our hypothetical use a flow chart of the functional configuration).
Ready set go.
I’m done.
How about you?
What? You’re not? How can that be? We both have the same machine, right?
I win again (I do like winning).
Oh I see, you are stuck trying to “use” the machine without changing the machine into something else.
The problem you have is “use”. You want to expand “use” to include the “configure” portion of a computer, because people can “use” computers to make upgrades to the very computer being “used”.
You will note that I purposefully set distinguish “use”. I do notice that you like to define words a bit (OK, well beyond a bit) unreasonbly broad to suit your argument. Here “use” does not mean “configure”. You will run into the same telecommunicaiton device “by any future means” problem that the Supremes already addressed if you try to hold the position that a computer, through its “use” encompasses all future possible states of the machine. That’s a problem with the Turing-complete folks. Turing complete is a thought-experiment. Assumptions of infinite capacity, infinte tape length, infinite time should be clues. Turing complete is kinda like my great big box of electrons-protons-neutrons. With both, anything is possible to be built.
This is where the Frankenstein Printed Matter Doctrine can be useful (yea, you are going to have to understand what that doctrine means to follow along here). Think of “use” as anything being done on a general purpose computer that does not involve the functional side of PMD. Think of “configure” as the other side – the functional change in the machine accomplished by augmenting its functionality (if it helps the bio folks – think of this as tweaking the molecular congfiguration of the molecules – before and after each “box” has the same number of electron-proton-neutrons, just that after the configuration is different and perhaps what is sitting on the shelf is also different – like a gp, configuring rarely means tha tthe entire guts of the gp have been changed or used, so things sit onthe shelf as it were in both backyards).
As for Dr. House, he too, conflates “use” because his quippy soundbyte is for a TV show, not a court, not the Office and definitely not for the law.
I agree. Those are good hypos step back.
Another question: how is the structure of information processing measured?
How much time it takes to operate and how much space it needs to operate. Sounds like there must be some struture there to me otherwise why does it need space?
You see we come back to the philosphical medieval thinkers. They believe that thinking doesn’t take space and energy and time. Sorry fellas your brain does the thinking just like your arm does the moving.
No structure. No structure that takes space. There a trick. Angels spinning on the top of pin.
I like this latest discussion because it’s full of hypotheticals with which to test the rigor of the EPO approach to patent eligibility and the “useful arts” (which includes allowing Beauregard claims as routinely as method or apparatus claims, but not when they are for financial engineering).
oops,
the word “voltage” should be deleted from the 2nd example
Tom,
So let’s follow my example above up with a slightly different claim:
What is claimed is:
1 A method comprising:
… and causing the computer-implemented output module to output a signal according to: y=5.4*x^2 + 3.2*x + 1 where x is the cardiac rhythm factor of said monitored patient and y is a graphical magnitude displayed on the physician’s screen voltage.
Horror of horrors.
We have now written something that the crazies will say is a “software” claim. (Even though God did not come down from the mountain top and anoint them Guardians of the Holy Dictionary.)
But now you want to step back and ask yourself: Is this slightly varied claim still that which embraces the “useful arts”?
Inquisitive students do not spout blind dogma. They ask why and they think for themselves. 🙂
Tom,
As a student (of law?), you should be asking ‘why?’ rather than repeating blind dogma.
Why do we not allow for the “patenting” (whatever that means, do you know?) of “ideas”?
The US Constitution empowers Congress “to promote the Progress of Science and [and of the] **useful** Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their **respective** Writings and Discoveries;”
So there is that troublesome phrase, “the useful arts”. What does it mean? What is an un-useful art?
Well, conjuring up stories about voodoo magic is an example of an unuseful art. It may be entertaining and all, but it has no direct practical and useful application to the real world.
Similarly, an expression like y=ax^2 + bx + c has no direct practical and useful application to the real world because y and x can be any illusory thing I choose to pick.
However, one should not fall for the trap of form over substance.
Let’s say we had a “method” claim at the end of a patent that said:
What is claimed is:
1 A method comprising:
… and causing the output device to output an electrical signal according to: y=5.4*x^2 + 3.2*x + 1 where x is the cardiac rhythm factor of said monitored patient and y is output voltage.
Yes. There is a mathematical formula inside the claim, but that is no reason to go ballistic. The claim encompasses only a real world, practical and useful process. It is not wholly pre-empting the public from using the abstract expression:
y=ax^2 + bx + c
“Not everything made of steel is obvious, but neither does finding something different to hit with a hammer make the hammer a different tool.”
Uh-huh, but you don’t need to modify (program) a hammer to hit different things with it.
“Great. Now, what part of the structure of the programmed computer distinguishes it from the prior art unprogrammed computer?”
That would be state of the hard disk and/or the semiconductor memory, or equivalents thereof, that are physically altered by the programming.
As a student, I’m probably dead wrong, but how I see it is:
You can patent concepts, not actual devices (you can patent an apparatus or method, such as a device to walk around with that does computations not an Apple macBook G5 bladieblah)
You cannot patent formulas, and thus not algorithms (which are formulas, and once code is compiled its just pure calculations with ones and zero’s, thus formulas)
If I would like to patent a program, I end up patenting the concept, for example e-commerce.
This would then be the means to order products/services from a different location by the means of a computer over the internet.
Patenting specific software, like Windows 7, will end up in patenting formulas. Since Windows 7 does nothing more than if I press a button, some algorithm get run.
So, one could say, it’s a process: you click a button, something happens. And I concur, but what happens after the clicking will end up being a concept (f.i. a context menu occurs), and not a program as is.
The issue is, that with computers most concepts aren’t that new. Most concepts are things we do in our ordinary life, but now electronically. Obviousness and Novelty issues all over the place.
That being said, Bilski is not trying to claim computer software at all (which makes this movie all the more weird, since it starts with a scene from the Bilski case) Bilski is trying to patent a process, not software (it is even stated that this process should be able to run without any computers involved, making it not even applicable for technology-related patents, although the supreme court seems to have overruled that).
@Ned:
I still kind of want to quibble over whether it could be said to have been a part of the Manhattan project, since in June or July of ’45 they had already done the first test, and by August they had dropped 2 bombs on Japan, and the computation didn’t take place until December. But we’re kind of just arguing over semantics now, so I won’t.
Thanks for bringing up the subject, it is really interesting going over the history of it.
I think the claim of first ‘real’ computer is probably debatable, although ENIAC has a pretty good claim. It just depends too much on exactly how you define a ‘real’ computer. If the definition were up to me, I’d write it so that Charles Babbage’s Difference Engine would win. It’s clearly way ahead of its time, and when they actually did go out and build one, many decades after his death, using historical technology, it worked.
“You’re probably thinking about product by process claims.”
definitely not.
“functionally equivalent…cover them all…courts allow”
Um 6 – that sounds like means claims…
“ on a device that was known to be old that supposedly had a new function”
ya mean like a new use invention…?
“had a structure which would be readily noticed as being such if they came later (such as a brand new clipping mechanism) and they wanted to cover them all ”
…cover them all including the brand new?
Slow down and try again 6 – yous all garbled.
And when you get there, stop for a sec and think of one mighty powerful word: PHOSITA.
“The programmed part.”
Oh how the mighty fall.
Terry, thanks for your post.
Mike, according to McTiernan, see the link above regarding the Army patent attorney, my post at 7:29, the calculation took place in Dec. 1945 as part of the Manhattan project. They did involve the H-Bomb. I am not sure exactly when the Manhattan project was transfered to its successor agency. But, does that really make any difference that the first true GP digital computer was the ENIAC or that it was a project of the US Army or that it was used in the Manhattan project, albeit, that it was not originally built for that purpose, but for code breaking and artillery calculations?
Von Neumann described the project in his mid-1940’s paper. His paper essentially describes all modern computers.
Thanks Ned, I understand now why you mentioned the Manhattan project in that context, but I can’t actually find the word “Manhattan” in your link (link to ftp.arl.mil).
All the same, the Frankel link was especially interesting because clearly he must have been one of Feynman’s boys, and it does actually say he used it in the Manhattan project, though remembering Feynman on the subject of Frankel I still think that needs to be taken with a grain of salt (Feynman was extremely suspicious of computer nerds till he met Danny Hillis and his ‘Thinking Machine’). The PDF on the patent issues is fascinating too. I was aware of some of this from decades ago, but didn’t understand patents at all till beginning a law degree.
I do see that Frankel confirms ENIAC’s use for the hydrogen bomb. The link also states Frankel ran “thermonuclear” calculations on ENIAC three years after 1942, so either 1945 or 1946; the http://ftp.arl.mil link gives “final assembly in the fall of 1945, and the formal dedication in February 1946”.
The ENIAC overlapped Manhattan then by a little less than a year, so use in the dying days before the AEC took over Manhattan is possible.
I’d guess Frankel’s work happened after Oppenheimer and Feynman left the Manhattan project. Was it actually part of Manhattan? Not clear. Discussion follows.
Most think of the Manhattan project as being to develop the A-bomb as a weapon of war, and it was too late for that. I’m calling Teller’s thermonuclear design the Super because that was Teller’s name for it. The Super was not part of the Manhattan project at Los Alamos because Oppenheimer and Bethe kicked Teller off the team (Teller was hard to work with, and the Super wasn’t a practical war weapon).
But when you have such a limited supply of talent it’s hard to prevent stellar luminaries like von Neuman and Teller from associating with Manhattan. Teller still had a room at Los Alamos though he didn’t do H-bomb work there – he called in others outside the Manhattan project to help with it – and von Neumann contributed his own share of heartache, especially towards the later patent squabbles.
The Super wasn’t the H-bomb as we now understand it because the critical design idea for that didn’t happen till after 1950, but it’s entirely possible the ENIAC was used on the Super design sometime in late 1945 or 1946.
Was that ever part of the Manhattan project? Not, I reckon, while Oppenheimer and Groves were in charge. But hey, there’s about three months when it’s conceivable an unfinished ENIAC played with thermonuclear calculations under the auspices of Manhattan, at least in name.
The http://ftp.arl.mil and Frankel links do make clear ENIAC had nothing to do with the A-bomb … Johnny von Neuman was talking about it in 1945, but “ENIAC was not yet fully operational”, for example.
Nonetheless the links you provide do show ENIAC was doing interesting stuff before it took final form, which provides some leeway.
Of course here’s where it gets fascinating from a patent perspective, because they also show ENIAC wasn’t a static design. I had thought the design was frozen in 1943, but apparently not, there were multiple innovations any one of which, including the vacuum tubes, would have been patent-worthy.
Later, ENIAC might have had lot to do reconciling range-energy curves and diffusion, both of which were critical to the development of the H-bomb.
“but it was used by the Manhattan project to calculate fundamental calculations that lead to the bomb.”
No, according to your own link, it was used on an h-bomb simulation in ’46, by which time the Manhattan project had succesfully finished. The simulation was apparently oversimplified to the point of being meaningless, anyway.
There’s a big difference between a fission bomb and a fusion bomb. If you’re talking about the first fission bomb, it was done by ’45, so the ENIAC wouldn’t have been able to help. It was used to help make the first fusion bomb, which was done by ’52.
Here’s LANL’s history page that discusses, among other things, the use of computers for that:
link to lanl.gov
broje TINLA IANYL: Thank you for mentioning the incredibly innovative automobile industry. Their US success is surely something that software industry should look forward to become :/
(Off topic: patents for physical stuff come with blueprints and all , why can companies have software patents without revealing any source code? )
Here’s another great piece from an Army patent attorney who later worked for both IBM and Sperry Rand. In the latter capacity, he was their patent counsel and in charge of prosecuting and licensing the ENIAC patent.
A very good read.
link to design.osu.edu
Terry, here some more history from the Army. It does not give the Navy folks any credit for the decision to fund the project, but does note that the ENIAC was used in the Manhattan project.
link to ftp.arl.mil