Recent Patent Law Scholarship

By Jason Rantanen

Several interesting new articles are currently making the rounds.  Two particularly noteworthy ones are summarized below:

James Bessen, A Generation of Software Patents
Do patents benefit software firms? James Bessen examines this issue through both a survey of existing literature and a new empirical study.  Bessen finds that although the number of software-related patents has grown rapidly over the past decade, the share of those patents obtained by software firms has remained relatively small, and is largely accounted for by the activity of a small number of large software firms.  In other words, most software patents go to firms outside the software industry.  Bessen also provides data that brings into question the value of patents to startup software firms and examines changes in the probability that a software patent will be involved in litigation during the first four years of its patent life.

The complete article is available via ssrn here.

Mark Lemley, The Myth of the Sole Inventor
In his most recent major article, Mark Lemley challenges the canonical story of the lone genius inventor while proposing a novel justification for the patent system.  Professor Lemley first breaks down the idea that invention occurs independantly, created by a handful of extraordinary inventors, through a series of vignettes about famous inventions: the steam engine, steamboats, the cotten gin, and other classic examples of pioneering inventions.  Rather than lone inventors, Lemley argues, history is replete with examples of simultaneous invention, calling into question the traditional incentive justification for the patent system.  Nor do any of the other conventional justifications for the patent system work, Lemley suggests.  What is needed instead is a new theory, which he offers: patents encourage patent racing, which drives innovation to occur faster, and in a more diverse manner, than it otherwise would.

The complete article is available via ssrn here.  Written Description blog offers a more in-depth discussion of the article.

181 thoughts on “Recent Patent Law Scholarship

  1. Wouldn’t their ignorance need to be physical objects for them to blot out the photons from the sun?

  2. Do you really think that something must have mass to be “physical”?

    What is the mass of a photon? Is a photon a non-physical particle?

  3. How long is “momentary”? How long is “long enough?

    We don’t have a precise answer. However, if you cannot put it in a box and sell it, I suggest that it is not long enough.

    As to precursors, I suggest these are compositions of matter, not necessarily, articles of manufacture. Most time courts do not make distinctions between the two. If push came to shove, I think the courts would make a distinction if a composition existed only momentarily, and could not be boxed and sold.

  4. Your answer, as it were, 6, already speaks volumes.

    You do not have an answer that you care to discuss, otherwise you would not have resorted to crudeness in the first place. Rather, you would have delighted to dazzle all with the integration of your scientific intellect with your legal acumen.

    As it is, I believe that you have shown all that you are capable of showing.

  5. “Your answer likewise is still a non-answer. Any time you descend to that level of crudeness, you have signaled that you really do not know how to discuss the subject – and for all your vaunted intelligence, you are surely aware that that level of crudeness is a clear indicator of not being able to intelligently discuss something, and is a clear indicator of just what the actual your intelligence level is.”

    I told you, bow your insolent knee and I will consider not being so crude.

  6. Ned Heller,

    However, I and the courts do not agree that things here only momentarily

    Why do you retreat to a term that you yourself have acknowledged as “not an apt term?” I will also point out that the courts have accepted momentary existence as enough (for example, in article of manufacture claims of chemical precursors). In the electronic arts as well, article of manufacture claims are accepted for systems of gate configurations that are momentary.

    But this brings me back to the point that you still have not answered my questions.

    How long is “momentary”? How long is “long enough? Your view that I am insisting on these terms as a philosophical point, rather than as a matter of statutory construction is baseless. I view this response as a mere smokescreen. I have asked you now more than once to give answers and defend those answers. It is not an appropriate answer for you to answer with the question I asked you.

    It appears that you have no answers to give.

    6,

    Your answer likewise is still a non-answer. Any time you descend to that level of crudeness, you have signaled that you really do not know how to discuss the subject – and for all your vaunted intelligence, you are surely aware that that level of crudeness is a clear indicator of not being able to intelligently discuss something, and is a clear indicator of just what the actual your intelligence level is.

  7. We are talking about articles of manufacture, not about machines, processes or compositions. A signal that is produced by a machine or by a process is not patentable, but the machine or process may be.

    Your problem is your insistence on treating articles of manufacture in some sort of generic fashion such that anything made by man, however momentary, is an article of manufacture. However, I and the courts do not agree that things here only momentarily are articles of manufacture because they are not physically present long enough. It is a matter of statutory construction, not abstract philosophy.

    Now I will agree that everything is transitory. So, if you have a more apt term to describe articles of manufacture, please suggest one.

  8. “Do you consider “energy” an abstraction or something physical?”

    “Energy” as such is neither. It is an ability.

    But if you had to fit energy into one or the other then it is abstract. And it is abstract because it is simply what we make up to be able to describe the ability of physical objects to act on other physical objects.

    Idk why you have some kind of hard on for everything in the world being classified as either physical or abstract. Because here there is no reason to pigeon hole everything in the universe.

    “Do you consider electromagnetic radition an abstraction or something physical?”

    Neither. The discussion is practically the same as “energy”.

    “What exactly does “physical” entail? Is the term synonymous with corpereal, or does “physical” entail “actuality”?”

    Who cares? This is you making up new questions, you will have to bow your knee as the student before I bother to expand our discussion.

    “You appear to be selective in the tightness of words where it suits you, and overly broad with others where that suits you too”

    I appear that way? Mo fo, people of ordinary skill “appear that way” to you.

    Just because you’re an ignoramus doesn’t mean that I’m some kind of aberration.

    “this is not an examiner’s discussion, as this is a discussion on the terms that I have set forth”

    Lulz, oh, so you think you get to determine what the conversation is about? Typical lawlyer arrogance. Bow your knee as the ignorant student rather than the pretend master and I will consider discussing what you wish.

    “You, like Ned, would do well to think before you answer.”

    I would “do well” to ignore internet tards like yourself. Who, if they had any fcking education besides their liberal arts comp sci classes wouldn’t need to ask me these questions.

    “Do you really think that something must have mass to be “physical”?”

    I think that people of ordinary skill, judges and everyone else thinks it, and it makes sense to me, so yeah, I’m down. I also think that the only reason you’re trying to change the historical definitions is so that you can patent things like signals. I don’t find this a convincing reason to change the definitions.

    Instead of asking me, why don’t you send a quick email to your old physics professor? If you had one that is lol. Which of course you didn’t, leading us to the present conundrum.

    “Remember the context here is the abstract/non-abstract patent context.”

    Um, no, the “patent context” extends beyond a simple determination of abstract/non-abstract. Look at what they were discussing in Nuijten. They did not state, to my knowledge, that signals or energy itself was considered “abstract”. And for good reason, they are neither physical or abstract.

    “I suggest that you re read In re Alappat again to see just how tight a constraint is drawn around the term “abstract”.”

    The CAFC’s alleged or real petty patent protectionist restraints of USSC doctrine do not concern me. At all. And they never will.

    “And then when you consider In re Nuijten, consider tha the patent term of art “manufacture” includes those things changed by man to be in a different state – and yes, the property of energy changed to a different state can very well be a manufacture of man.”

    Yeah, properties of energy may very well be. As I noted, throwing a ball is a physical action and may even be eligible. Likewise my slapping you with my pen is.

    “Remember the context here is the abstract/non-abstract patent context. Remember that the answer does not depend on how one chooses to refer to the item – I am not at all discussing any such discussion of the abstract ideas of such so please stay focused on the actual questions I have asked.”

    How about you STAY FOCUSED eh? Go ahead, tell us all specifically what you’re talking about. Tell us that you’re specifically talking about an ABILITY and nothing more. Please, be specific about what you’re talking about instead of trying to remain under cover of big words which you don’t understand the meaning of. Either that or focus on my pe nis slapping you in the face.

    Either way, either you submit as the student or this conversation is over. I’ve explained everything to you in terms that one of skill in the art understands very well. If you are not up to snuff it isn’t up to me to bring you there.

  9. Ned,

    There are plenty of things that have value and can be sold that exist only momentarily. Chemical and electronic arts are replete with such examples.

    And this is not even addressing why you have chosen the explicit time period that you have (question unanswered).

    If you surrender the aspect of “transitory” as an apt term, you cannot then claim that term as a distinguishing factor. You surrendered it and it is gone.

    I will also remind you that the patent right is not limited to those items that can be sold. The exclusionary right of a patent is negative – not positive. The act of selling simply is not a requirement that must be somehow met.

    While the senses can verify the presence of the item, such is also not a requirement – and definitely not to the level that you are advocating here. Further, not all of the senses need be used to establish a presence, would you agree? Thus my question of “microscope”(question unanswered). Thus, to “hold” simply is not a requirement, and hence my question of the metaphorical “box” (question unanswered).

    So, your answer immediately above does not answer my questions. Articles of manufacture may have attributes that fit your initial classification, but they need not.

    Your answers, as little of it as provided, are insufficient.

  10. More, because any article of manufacture would have these attributes.

    How can one have the exclusive right to sell an article of manufacture if that article does not exist more than momentarily? How does one express in language the notion that an article of manufacture must be something you can hold, see, feel, touch, smell, taste and that exists long enough to sell.

  11. Anon, your denseness is puzzling. If you think a machine that has no substantial utility is patentable subject matter, then I suggest you have another think coming.

    If you think that the Supremes would hold that a method claim drawn to a mathematical algorithm is unpatentable, but then hold a computer programmed to execute the algorithm patentable, I think suggest you cannot understand the law. It is beyond your grasp.

    As to two cases, not necessary Supreme Court cases, that held programmed machine patentable because of a disclosed use, look at Alappat and State Street Bank.

    Why was Diehr patentable but Flook not? Use.

    If one looks at these cases as a whole, what emerges more than anything else is that the use of the machine or the method is the key to patentability.

    The problem I have with Benson is that the Supremes treat mathematics as laws of nature. (Certainly, a machine programmed to execute a mathematical algorithm is not abstract.) The simple retort is to observe that while laws of nature can be expressed mathematically, not all mathematical algorithms express laws of nature.

  12. minimum half-life of one year, that you can observe under a microscope

    Why a one year time period?
    Why a microscope?
    How big of a box? Can the “box” be a metaphorical term?

  13. Plato, a perfectly valid point. If transitory is not an adequate expression of describing something that has a minimum half-life of one year, that you can observe under a microscope, that you can put into a box and sell, then I will let you, the teacher to us of the physics of Isaac Newton and the philosophy of Plato, to coin the apt term.

    But I do agree with you point. Transitory is not an apt term.

  14. For all of your rather juvenile preaching 6, you still have not provided answers to my questions.

    Do you want to try again?

    Do you consider “energy” an abstraction or something physical?

    Do you consider electromagnetic radition an abstraction or something physical?

    What exactly does “physical” entail? Is the term synonymous with corpereal, or does “physical” entail “actuality”?

    As for the language lessons 6, you display a woeful misunderstanding of the use of nouns as categories, as well as a misunderstanding of words such as “entail” and “includes”. You appear to be selective in the tightness of words where it suits you, and overly broad with others where that suits you too – but your inconsistency and your selectivness is your downfall – this is not an examiner’s discussion, as this is a discussion on the terms that I have set forth. You, like Ned, would do well to think before you answer.

    Do you really think that something must have mass to be “physical”? Remember the context here is the abstract/non-abstract patent context. Remember that the answer does not depend on how one chooses to refer to the item – I am not at all discussing any such discussion of the abstract ideas of such so please stay focused on the actual questions I have asked.

    I suggest that you re read In re Alappat again to see just how tight a constraint is drawn around the term “abstract”.

    And then when you consider In re Nuijten, consider tha the patent term of art “manufacture” includes those things changed by man to be in a different state – and yes, the property of energy changed to a different state can very well be a manufacture of man.

  15. Properties of your arm are not your arm t ard. Properties of your house are not your house t ard. Properties of my pen is slapping you across the face are not the same thing as my pe nis slapping you across the face t ard.

    Finally, properties of energy are not energy. Properties of matter are not matter.

    But since you’re probably a lawlt ard, let me put it to you this way.

    A patent is not a patent holder. A piece of real estate is not a home owner.

    Though that is a different type of property it should make the point clear enough to you.

    In any event, come back to me when you have your physics degree. Perhaps then you will be worthy of licking my shoes on this topic.

    “6 – you just admitted that which you previously denied.”

    I never denied that PROPERTIES of energy could not have the term physical applied to them.

    For instance, the TRANSFERENCE (A PROPERTY) of energy from my hand to a ball as I’m throwing it is a physical action.

    Also for instance, the transference of energy from my hand taking hold of my pe nis and slapping you across the face is likewise a physical action.

    link to nmsea.org

    “It only pedantics to make the meaningless distinction – in the patent context – between properties of the one thing and the thing itself.”

    Care to try again without your speech impediment?

    And also, like my other soon to be admitted student, it will be helpful if you simply acknowledge that you are wholly ignorant on this issue and that you seek my tutelage. It will better help frame the tone of the discussion I believe. I might refrain from calling you re tarded, so often at any rate, if you simply admit such up front.

  16. Physical” may of course refer to the PROPERTIES of matter just as well PROPERTIES of energy.”

    6 – you just admitted that which you previously denied.

    It only pedantics to make the meaningless distinction – in the patent context – between properties of the one thing and the thing itself.

    W

    T

    F

  17. “According to 6, then, matter is not physical.”

    I did not say that. “Physical” may of course refer to the PROPERTIES of matter just as well PROPERTIES of energy.

    And this isn’t according to “6″, this is according to every physicist worth his salt and your physics professor. You might remember that goofy old fellow who kept giving you F’s every time you spouted your supposed understanding of what Einstein was saying.

    Remember broskies you’re arguing with the kid that did better than you in Physics.

    But should you need someone in a position of authority to spell it out for you:

    link to webcache.googleusercontent.com

  18. Yeah I remember you impersonating Einstein attempting to confuse equivalency with one thing actually being another.

    You might want to run that one by your physics teacher before you make yourself out further a fool.

  19. The phrase physical may thus refer to the “properties” of matter and energy, though not to energy itself.

    Can with exactly the same degree of twist be:

    The phrase physical may thus refer to the “properties” of matter and energy, though not to matter itself.

    According to 6, then, matter is not physical.

    His definition (and he’s the buying too)

  20. Hey buddy, remember me?

    I am going to let you in on a great big secret.

    Energy is matter.

  21. Method claims: See latest bilski memo (current one has factors to consider whether something is directed to an “abstract idea” whatever that actually is)

    System claims: is a huge carp shoot because no one really knows what to do with them. Apparatus claims are suppose to define over the prior art according to their structure, and not their function unless 112, 6th is invoked. However, most software prosecutors just throw the method steps verbatim into the system claim and don’t invoke 112, 6th treatment which causes problems.

    Medium Claims: no real 101 problems because of Beauregard except for mediums that can be signals because of in re nuijten. So according to the latest memo from director kappos you slap “non-transitory” in front of the word medium in the claim and then you’re fine. Whether a CD with software, which is fundamentally an an idea written in a specific language (and covered under copyright law), should be patentably distinct from another CD is another matter, but currently a Beauregard claim is standard in “software patents”.

    ^ Do you see what I told you? PTO incompetence.

  22. “as a physical”

    As “a” physical? “A” physical what? It is not “a” physical anything.

    But in any case, the defs actually don’t. You think they do, because you are ignorant and cannot understand written language along with not understand what is fundamentally being discussed.

    2. of or pertaining to that which is material: the physical universe; the physical sciences.

    Energy is by no means “material”. If you are so unbelievably bad at language as to not understand why or ignorant of what energy is then you may read this post further so that you will understand what energy actually is. Once you know that, you may return to this issue and understand easily why you agree with me. Presuming you have even basic ability to understand language. Which, at this point, I’m not entirely sure that you do. But I’ll hold off judgement.

    And in 3, where you might think you have a case, you really don’t, because of context and what is explicitly said.

    3. noting or pertaining to the properties of matter and energy other than those peculiar to living
    matter.

    The phrase physical may thus refer to the “properties” of matter and energy, though not to energy itself.

    I had hoped that you would be able to cipher this out on your own and not require my intervention, but alas, it appears you did require it.

    To be sure, energy itself is nothing more than a made up construct for how we like to view the ABILITY of a physical system to do work upon another physical system. It is, therefore, naught but an “ability”. This is something which you must try to grasp, but probably never will absent extensive teaching in a physics classroom.

    link to en.wikipedia.org

    However, it will be difficult for someone who has not dealt extensively in physics to understand this as it is difficult to grasp fully even to folks going through training in such. I sure know it was to me and everyone else in my classes.

    Indeed, it is fortunate that the Feds had sufficient guidance on the topic to rule properly in Nuijten.

    “which includes physics which includes energy”

    Just fyi, “physics” does not “include” energy. Just because they study energy and use it as a quantity of the ability of physical systems to act on other physical systems on occasion does not mean that the science itself is energy or has it as a part thereof.

    “Yet you indicate an unwillingness to commit to energy being physical”

    Indeed, because it is not.

    That is your answer, no energy is not physical. However, as I have noted, there are ways to claim energy or electricity etc as something which is not abstract. You could likewise claim the actual physical systems at play in the specific situation at hand and thus have something physical in your claim.

    Before I continue your free physics education it would be helpful to me if you would simply admit to being wholly ignorant of the subject and submit yourself as the student, uppity though you may be, just so that we are all aware of the relationship between us.

  23. Ned Heller,

    You only assume that I am not asking the right questions.

    You seem to assume a lot of things on these blog pages. Like you assume that you know what the right answers are.

    You assume much more than you should.

    As for the “transitory” cannard, show me anything that you can put into a box, anything that you can sell that is not transitory – and I will show you that you have just not looked at a time scale large enough.

    Instead of judging the sufficiency of my questions – try answering my questions.

  24. Plato, ask the right questions, get the right answers.

    Your question makes the assumption that the question of whether something is an article of manufacture depends solely on whether that something is physical. The answer to that question is not sufficient.

    It has further to be something non transitory, something you can put under a microscope and observe, something you can put in a box and sell. It has to be a “thing.”

  25. 6,

    Thank you for the attempt at an answer, but this falls short for several reasons.

    Most importantly, you did not actually provide an answer.

    You provide a definition in the alternative, yet both sides of that definition hold energy as a physical – either directly in 3 or indirectly in 2 (Definition 2 relates the the physical sciences, which includes physics which includes energy).

    Yet you indicate an unwillingness to commit to energy being physical notwithstanding the definitions you provide. In fact, you come out and say it isn’t – yet your definitions say otherwise.

    Then you indicate that whether energy is an abstraction depends on how you choose to refer to it.

    This is a nonanswer. It is or it is not. It is what it is. It does not depend on how you refer to it.

    So I offer you a second bit at the apple here.

    Please give an answer and defend it. Your reference to a very old Supreme Court case without actually citing the case does not work for me. Likewise, merely saying you “feel” Nuijten was most proeprly decided does not work, because you have not yet shown you understand the actual issue here.

  26. “Tell it to the Flook Court dawg.

    I’m not going to have this discussion that was had 30 some years ago and settled quite easily by our courts.”

    6, that’s because you can’t face the fact that the Court some 30 years ago cabined the Flook case with Diehr. And just some 12 months or so ago, reaffirmed in Bilski at paragraph 14 that Diehr still controls Flook, and Benson!

    And that’s why whenever your nonsensical theories are challenged you have no case law, no examples based on case law, and not even any legal definitions to back up your rhetoric.

    And that’s why, if you are a PE in real life you really need to be fired for your willful incompetence, lack of ethics, and scofflaw antics.

    AI,
    Chair of the Fire 6 Commission

  27. Ned,

    You really need to pick up the ball on your comments.

    For system and article claims, what is this so called requirement of “disclosed statutory use”?

    If you are drawing a conclusion from Benson (which by the way was a method claim case), wouldn’t any such doctrine by a judicial one, rather than statutory? If you really think this is statutory, which statutue would a system or article claim – on its face – violate?

    It’s bad enough that there is a multitude of people who feel free to opine here without any grasp of the law, but sloppiness by lawyers just makes things here unintelligible.

  28. From Bilski:
     
    "
    The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those inthe Industrial Age—for example, inventions grounded in aphysical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous

    amicus briefs argue, the
    machine-or-transformation test would create uncertainty asto the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals. See, e.g., Brief for Business Software Alliance 24– 25; Brief for Biotechnology Industry Organization et al. 14–27; Brief for Boston Patent Law Association 8–15; Brief for Houston Intellectual Property Law Association 17–22; Brief for Dolby Labs., Inc., et al. 9–10.

    In the course of applying the machine-or-transformationtest to emerging technologies, courts may pose questionsof such intricacy and refinement that they risk obscuringthe larger object of securing patents for valuable inventions without transgressing the public domain. The dissent by Judge Rader refers to some of these difficulties. 545 F. 3d, at 1015. As a result, in deciding whether previously unforeseen inventions qualify as patentable "process[es]," it may not make sense to require courts to confine themselves to asking the questions posed by the machineor-transformation test. Section 101’s terms suggest thatnew technologies may call for new inquiries. See

    Benson, supra, at 71 (to "freeze process patents to old technologies,leaving no room for the revelations of the new, onrushingtechnology[,] . . . is not our purpose").

    It is important to emphasize that the Court today is not commenting on the patentability of any particular invention, let alone holding that any of the above-mentioned technologies from the Information Age should or shouldnot receive patent protection. This Age puts the possibility of innovation in the hands of more people and raisesnew difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections fortheir inventions, the patent law faces a great challenge instriking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of generalprinciples. Nothing in this opinion should be read to takea position on where that balance ought to be struck.

  29. Thanks.
     
    It seem that if a statutory use is disclosed, system and article claims should be fine.  The method claims would have t be limited to that use.  If they are, they are fine.
     
    Now the problem becomes, what is a statutory use?  Simply solving a mathematical problem is not per Benson.  This throws in to doubt a large number of what I think are serious inventions: inventions related to data compression, error correction and the like. 
     
    All non statutory.  Numbers in and numbers out, unless limited to a specific phyiscal use.
     
     

  30. Ned what is your basis for saying “Bilski recognized the value of inventions in mathematics”? That looks like a huge leap from reality to me (or maybe just very wishful thinking on your part).

  31. 700-719 all (I believe) deal with computers and generally are “software patents”. With software patents you generally see 3 independent claims (1 for the software method, 1 for the system running the method, and 1 for the software on a medium).

    Regarding 101, who knows if they are actually patentable under 101 given Supreme Court precedent (Benson, Bilski, etc.). However during prosecution they’re treated as follows:

    Method claims: See latest bilski memo (current one has factors to consider whether something is directed to an “abstract idea” whatever that actually is)

    System claims: is a huge carp shoot because no one really knows what to do with them. Apparatus claims are suppose to define over the prior art according to their structure, and not their function unless 112, 6th is invoked. However, most software prosecutors just throw the method steps verbatim into the system claim and don’t invoke 112, 6th treatment which causes problems.

    Medium Claims: no real 101 problems because of Beauregard except for mediums that can be signals because of in re nuijten. So according to the latest memo from director kappos you slap “non-transitory” in front of the word medium in the claim and then you’re fine. Whether a CD with software, which is fundamentally an an idea written in a specific language (and covered under copyright law), should be patentably distinct from another CD is another matter, but currently a Beauregard claim is standard in “software patents”.

  32. a programmed computer without a specific use

    C’mon people – let’s raise the thinking being applied prior to posting here.

    Ned – look at your statement and see the nonsense: You cannot have “programmed” without “specific use” because programming entails doing something for a specific use. Programming does not exist in a vacuum.

    Come back when you understand the art that you are trying to talk about.

  33. piece of paper with a recipe

    Seriously?

    Back to this crrp post material?

    That was stale four years ago.

    Review (once again) the printed matter doctine and all the pertinent exceptions to that doctrine to see that implemented software has a functional relationship and that is all that is needed.

    Stop wasting your time and everyone else’s time with your pathological obsession with an argument that has been proven false time after time.

  34. Software sitting by itself is one thing – software implemented on a machine is quite another.

    “A piece of paper with a recipe on it is one thing – a piece of paper with a recipe on it that is read by robot chef is quite another.”

    LOL.

  35. Anon, I am now lost in your argument. I have lost track of what your point is. You seem to have something to say, but critically avoid the issue: specific use.

    Regarding Benson and Alappat, what made the claims of Alappat patentable was the disclosed used of the “rasterizer” to smoothe displays.

    We can digress all over the map on side issues if you choose, but nothing else really matters.

    Now, I suggest that the holdings in Benson and Diehr are conistent. Nothing was dialed back. Diehr dialed back, if anything, broad and very unnecessary dicta in Flook, a case written by Stevens. By contrast, the Douglas opinion in Benson was concise and eloquent.

    To date, no Supreme Court holding has ever gone so far as to even suggest that a programmed computer without a specific use is patentable.

    Do you agree?

  36. Lemley is dead on. The peanut gallery here is entirely too personally invested in the status quo to view his writing objectively.

  37. And together they play a terrible mind Game. They truly try to drive her to the brink of insanity. But She has IRON SIDES!
    And when it gets going, she is forced into Bankruptcy so they can plan her demise.
    She is kidnapped as a Baby. Her life reads like Cinderella with a twist. If there was will for 22 Porrazzo it was destroyed because of the Secret. And when there came a fight after Someone tried to kill me, I now realize she left with me because he was going to tell “Me” everything.

  38. Just imagine not knowing who you are for almost 60 years. And almost 20 of those years you are being trespassed, maybe even more. Your Son knows. And instead of coming to you he gets in the Game.
    Then you invent something. The People that are trespassing that Property find out who you are. They then decide hey if you tell her what we have done we will destroy your Secret!

  39. I have just read the Lemley paper and find his “patent Racing” idea interesting.

    Take trans-luminally delivered stents, for example. There are two types of this simple cylindrical cage (balloon-exapandable and self-expanding) but probably 100,000+ patents on stent strut matrix patterns. 40 years ago there were none, just a few doctors in places like Switzerland, who were mulling over how to un-block vascular stenoses. So why so many patents now?

    40 years ago there was no patent racing in stents. Now there is. Stents save lives. I think some academic should look in to the stent field. First thing they might do, interview Daniel Thomas. Incidentally, is Dr Palmaz still around?

  40. “Do you get why you come across as such a joke?”

    Do you AI?

    Just because I stopped responding to you under your normal name there is no reason for you to try to hide yourself.

  41. you need to stay anonymous for a very good reason, trust me.

    Great – another internet tough guy. E_ph you tough guy. Making threats over the internet is just another way of making yourself as low as possible, isn’t it? Don’t be such a know-it-all-but-don’t-know-anything poster and just watch my snide comments disappear.

    You rely too much on equivalency, methinks.

    You don’t understand equivalency, methinks – otherwise you would not make such ridiculous statements as you do – nowhere do I ever indicate that programming alone is sufficient – nice try at a strawman there. And no – you are wrong as to the necessary result of my argument – You sound just like other clowns on these boards who do not get the difference between patentable and patent eligible. A programmed machine can be a changed machine, but even a changed machine may not be “new” or “patentable” – but it surely is patent eligible.

    As for distinguishing Benson – I don’t need to, in case you haven’t heard, Benson by itself is not good law (need I even remind you that Benson was written by that anti-patent lun_atic Douglas?). Besides which, you show your lun_acy even more by thinking that Benson’s holding was to actual hardware – read the decision again, O mighty internet tough guy. The Supreme Court decision did not address the physical circuits portion (and you say others dwell on dicta…). Benson was rejected on a process claim – not a machine claim. The rejection of Benson was not directed to a computer system, but to a process.

    Not content with making mistakes about case law on methods, you then make a mistake on machines in Alappat. Again – you need to review just why Alappat was important – the distinction was that Alappat was claimed as a machine – the new use was dicta (and you say others dwell on dicta…).

    That’s 0-2 on case law internet tough guy. And in one comment – that bar you set buried in China?

    The machine itself does not appear to have to recite a new use as does a process claim. All that is necessary is that the new use be disclosed.

    Smokescreen city – and completely wrong. A new disclosed use for a machine claim can still fail – do you know what inherency is? For these types of claims, disclosing a new use is vastly minor compared to the aspect of a new machine itself.

    That’s why you are wrong.

    As to the equivalency between hardware, software or whateverware in solving mathematical problems – yet another strawman. The “solving of a mathematical problem” is not the focus of the equivalency. Are you being daft on purpose? The focus is that a new machine can be differentiated by its hardware, by its firmware or by its software. Software in this sense is not software on its own – this is a point that has been made crystal clear – even you should have picked up on this through your many previous conversations.

    Listen Ned – try at least to get the basics right. Otherwise you just sound like some de_ranged threatening wind_bag.

  42. Anon, you really are out there on this issue, suggesting that a programmed machine is patentable even if all it does is present and solve a mathematical problem, because that is the necessary result of your argument that a programmed machine is both "new" and "patentable" because of its program, without more.  

    Tell me then, just how you would distinguish the Benson claims?  They were directed to a computer system employing a BCD algorithm.  Were not its circuits reconfigured in the same way as were the Alappat circuits?  If and they were not, I would
    like to know why they were not.  Clearly you cannot resort to sophistry and hand-waving to somehow say that, as a general proposition, a programmed computer is alway patentable as a new machine simply by changing its program.  The programmed computer must do something new as well.  The new use was critical the holding of Alappat.  I quoted it.

    The major difference between a machine claim and a process claim in this area of law appears in Alappat.  The machine itself does not appear to have to recite a new use as does a process claim.  All that is necessary is that the new use be disclosed.  

    As to the equivalency between hardware, software or whateverware in solving mathematical problems, I must ask you this:  Would Benson have been decided differently if the computer it recited in the claims was limited to an analog computer?  Would the result have been different if the specification disclosed specific circuits that converted BCD to binary when the claim itself simply recited the math?  You rely too much on equivalency, methinks.

    As to your snide comments about me personally, you need to stay anonymous for a very good reason, trust me.

  43. Ned,

    You simply do not have a good track record of parsing decisions and selecting the “most important” paragraphs for anyone’s consideration.

    You have yet to show you even understand the basic equivalency of hardware to firmware to software. How is anyone even remotely familliar with this art field going to take what you say seriously (whether or not this is part of a continued discussion)?

  44. Ned – the most critical was the change – pure and simple. Without the programming there was no change – pure and simple. The purpose while indeed important, simply was not the most critical.

    It was new, again, because of its new program” All you need to do is stop there and realize that you have just agreed with me.

    All else you say is just smoke and mirrors, meaning nothing.

  45. Ned,

    That about says it all – you agreeing with the likes of 6 in response to the equivalency of hardware to firmware to software.

    Are you purposefully trying to lower the expectation of your posts?

  46. Anon, the problem with your post is that you have stepped into a conversation we have been having for years here.

    I don’t care if I just stepped off of a cabbage truck – my points at 4:43 PM are correct and you are plain wack with your views of useful arts, Benson & Flook walk-back, business methods, and call for Congressional clarification for mathematical utility.

    You need to post no matter who is the audiance – and you need to not ask questions as some kind of defense for your atrocious posts. It really is no defense to what you posted above how I view the Bilski claims. My view on those claims is not material to your wack statements.

    Do you get why you come across as such a joke?

  47. Really? The program created new ALUs, new shifters, new ROMs, the elements the Feds state were the corresponding structure?  Really?  Do you really believe that?   When an an ALU executes a math or logic instruction, it does not become a new ALU.   The circuitry itself remains unchanged.  The various math or logic operations are one of its capabilities.  That existing capability is merely selected by an instruction.  Nothing is new, physically.  What's new is the program.  But the stored program is part of the machine — a necessary part.  For this reason as well, Beauregard claims are patentable as a component of a machine. 

    Now back to reality, please.  As stated, a programmed digital computer is a new
    machine because of its new program, not because any of its instruction fetch, instruction interpretation or instruction execution hardware is new.  Anyone who knows anything about computers know this.  In order for the programmed computer to be patentable, it must have a new utility tied to the program execution.  If you do not believe this to be the case, say so.  Then we will have a discussion about Benson.

    And just in case you doubt the actual holding of Alappat, please read the holding of the case I posted elsewhere in this thread.  It specifically states that the hardware is special, and includes ALUs, shifters and output ROMs.  Not all GP computers may have this same hardware arranged in the same way.  All the Feds were trying to show is that the claim was directed to a machine, which is one of the four categories.  But we knew that already.  The question was
    how was this machine new?  It was new, again, because of its new program.  The new program causes the computer to operate in a new way.  But the program itself is part of the machine. 

    But that did not end the discussion in Alappat.  It continued to the fact that the machine calculated data for use in a display.  The machine specifically smoothed the display by using anti-aliasing.   This was the critical, the most critical aspect of the holding.  If you do not agree, please say so.

  48. Anon, the problem with your post is that you have stepped into a conversation we have been having for years here.  We all know that Bilski did not go so far as to declare business method utility beyond the scope of patentable subject matter as argued by the Stevens minority, but that does not settle the matter does it?

    The Bilski claims were declared abstract, but the reason they were declared abstract was not articulated.  Was it because they claims were not limited to implementation on a digital computer or internet or something of that nature?  Or was it because the claims did not call for a physical, as opposed to an abstract, use?  

    If you know the answer to this question, we would like to partake of your
    knowledge.

  49. Ned,

    Seriously, you are wack today – the programming of that GP machine was what changed the machine from a GP machine to a specific machine.

    Software sitting by itself is one thing – software implemented on a machine is quite another. This was fundamental to Alallapat. If you don’t understand this, you need to sit down with someone who can explain this to you until you do unerstand it.

    The programming was what changed the machine becuase a software change is equivalent to a hardware change.

  50. Ned,

    You are off is so many ways here I scarcely know where to begin…

    Your notion of useful arts is as off as 6′s.

    Benson and Flook have already been “walked back.” – See Bilski discussing Diehr.

    See Bilski re discussing business methods (as noted already, such are within the useful arts).

    Mathematical utility – without more is one of the Supreme Court noted exceptions. This is a consitutionally noted exception and Congress cannot legislate around that exception, so your call for clarification is quite unnecessary.

    The quality of your posts such as this are well below even your low standard.

  51. I think the Supreme Court in Bilski recognized the value of inventions in mathematics, such as improved encryption or compression, extraction of information from noisy signles, and so on and so on. If they could, I would be they would be willing to walk back their holdings in Benson and Flook, and state that the real problem with Bilski was its utility was in the realm of business, and that such utility is not the kind of utility within the useful arts.

    But, mathematical utility is similarly not within the useful arts as such.

    Since these inventions are valuable per se, and not limited to a specific application no matter how broadly stated, I think we should call for legislation to clarify their status.

  52. “This is not a disembodied mathematical concept which may be characterized as an “abstract idea,” but rather a specific machine to produce a useful, concrete, and tangible result. <31 USPQ2d 1558>

    Lulz, bad caselawl based on bad caselawl, I had forgotten about that little discovery during the Bilski discussions way back.

  53. If you’re asking whether I would use 102/103 instead of 101 then no, I would likely use both art and eligibility. Especially if, as ned claims, whatever unstated hypo claim he’s thinking of is indeed indistinguishable on the facts from Benson.

  54. Ware, just in case you did not understand my point, but I said “without more.”

    Benson, Flook and Diehr all emphasized that a programed digital computer that only calculated a number that was not used for a useful purpose (which they did not define) is not patentable.

    If you still contend that a computer is patentable by mere programming it such that it calculates a number more efficiently, then I suggest you are plainly wrong.

  55. I quoted the holding in the next post. It supports the point I just made. The construed claims covered a specific machine, albeit a machine that performed mathematical functions in response to instructions, but nevertheless, not necessarily a GP digital computer.

    Thus, their discussion of a GP digital computer programmed to perform the recited algorithm is dicta. You really have to understand that.

  56. Ware: I am sure it is not your view of Alappat that a GP digital computer programmed to calculate a number is, without more, patentable?

    To help you answer this question, I’ll give you the two most important paragraphs from the case for your consideration.

    “Although many, or arguably even all,22 of the means elements recited in claim 15 represent circuitry elements that perform mathematical calculations, which is essentially true of all digital electrical circuits, the claimed invention as a whole is directed to a combination of interrelated elements which combine to form a machine for converting discrete waveform data samples into anti-aliased pixel illumination intensity data to be displayed on a display means.23 This is not a disembodied mathematical concept which may be characterized as an “abstract idea,” but rather a specific machine to produce a useful, concrete, and tangible result. <31 USPQ2d 1558>
    The fact that the four claimed means elements function to transform one set of data to another through what may be viewed as a series of mathematical calculations does not alone justify a holding that the claim as a whole is directed to nonstatutory subject matter. See In re Iwahashi, 888 F.2d at 1375, 12 USPQ2d at 1911.24 Indeed, claim 15 as written is not “so abstract and sweeping” that it would “wholly pre-empt” the use of any apparatus employing the combination of mathematical calculations recited therein. See Benson, 409 U.S. at 68-72 (1972). Rather, claim 15 is limited to the use of a particularly claimed combination of elements performing the particularly claimed combination of calculations to transform, i.e., rasterize, digitized waveforms (data) into anti-aliased, pixel illumination data to produce a smooth waveform.”

  57. Ned,

    Like so many of your points on these threads, here you are simply wrong.

    This is not up for debate or for your response. This is a fact.

  58. So guys, this time next week I will officially be a “job creator”. Literally, a boss so to speak.

    If you want to get in on this rather knock your socks off proposition while the gettin’ is cheap you can send me a mail and I’ll consider you for investing or affiliation, possibly partnership. I have a good amount of interest already and nearly everyone I pitch it to is ready to invest some few thousand so I’m not exactly hurting for interest.

    Just figured I’d open it up to you guys.

  59. Ware, “cover?” I said cover. You said, exclude. We are not communicating.

    I meant cover as in “literally” cover. The claims AS CONSTRUED by the Feds in Alappat literally covered specific hardware. Read the case.

    A programmed GP digital computer was not at issue in the case. Anything they said on that topic was pure dicta.

  60. 6, a programmed machine that only produces a new number and there is no specific use for that number disclosed (as in producing a binary number from BCD) is indistinguishable from Benson on the facts. I find it very interesting that you would be prepared to grant a patent on such a claim. Can you explain why?

  61. Watch out for the boogymen children

    The “boogeyman” doesn’t exist.

    Patent “trolls” most certainly do exist.

    Only a “shill” would pretend otherwise.

  62. And no, I don’t think I called you a tard. I said that the one position you noted above was a re tarded position. I do note though that if you happen to subscribe to that position (still) then you may very well be one.

  63. Idk ned, that really depends on the claim. Is it an attempt to claim an abstract idea?

    Yes or no?

    The answer will determine the answer to your question.

  64. Then, 6, is it YOUR position that a programmed computer for producing a new number without more is patentable as a machine?  

    And you call me the 'tard?

  65. That depends on which definition of physical you wish to use.

    2 or 3?

    link to dictionary.reference.com

    I believe that if we look into the proper use of the word in this context we have to go with 2. You can feel free to disagree depending on the specific context at hand.

    And then no, energy isn’t “physical”. As to whether it is an abstraction or not, I would not say that it necessarily is or it isn’t depending on the way which you choose to refer to it. That is, the way it is claimed in a specific claim. You can certainly claim it in a way in which it is an abstraction and you can certainly claim it in a way in which it is not.

    Keep in mind there certainly can be things in the realm of “things that are” besides those that are “physical” and those that are “abstract”. Specifically, “electricity” in your day to day would be one of them.

    “Do you consider electromagnetic radition an abstraction or something physical?”

    See the dicsussion on electricity above, it is largely the same discussion for EM rad., for example, light, except there the particles don’t even have mass.

    There was a good discussion in a very old case that brought up essentially this discussion and noted the USSC’s position on the matter. I meant to save that decision but I don’t remember where I put it. They were stating that the distinction between the “physical” etc. and the not physical was the distinction between matter and non-matter. And I largely agreed with it.

    Likewise I feel Nuijten was most properly decided. Although they could have expounded upon their reasoning a bit more to satisfy the scientifically ignorant amongst the lawltards.

  66. Ned and 6,

    Do you consider “energy” an abstraction or something physical?

    Do you consider electromagnetic radition an abstraction or something physical?

    What exactly does “physical” entail? Is the term synonymous with corpereal, or does “physical” entail “actuality”?

    The answers to these questions should shine a light on this topic. Feel free to comment on the lunacy of In re Nuijten in your answers.

  67. “this was crucial to the holding.”

    I sure hope so, because that will make it spectacularly easy for the USSC to smack that sht down.

    “On the contrary, Diehr makes this point evidently plain. Of course, the Justices could have been more forthright about this in the substantial manner in which Diehr actually reverses the earlier decisions, but the highest Court sometimes does not like to come out and outright say what it otherwise does say.”

    Lulz, Diehr had nothing to do with gp comps.

  68. “I agree with State Street bank and disagree with Rader, with the MOT and with Bilski”

    Well thankfully even the patent protectionist CAFC disagrees with you.

    “Physicality is not required to bring something from the abstract into the real”

    Go hash that out with your fellow philosophers sometime plato. The rest of us already know you’re wrong.

    “One view is that a use that is not physical makes the claim abstract.”

    One “ret arded” view you mean Nedo.

  69. “However, as to the other article premise, it a USPTO published fact that only 52 USPTO interferences were declared in FY 2010 (versus roughly half a million patent applications filed). That alone seriously factually undermines the academic proposition that most inventions are made simultaneously by different inventors.”

    Paul,

    Amen to that point.

  70. I doubt if anyone is still reading “comments” after the massive numbers of uninformative personal attacks, but this is just to note that [irrespective of the famous individual inventor story inaccuracies pointed out on the above-cited "written description" blog FILTERED comments], it is not news, and a valid point, that a major and historic reason for patent systems is the more rapid public disclosure of new useful technologies instead of [where possible] maintaining them as trade secrets, in order to promote the progress of the “useful arts.” [This is also a good reason why 18 month or earlier publications of patent applications have become almost universal to compensate for the current long delays in patent office issuances of patents.]
    However, as to the other article premise, it a USPTO published fact that only 52 USPTO interferences were declared in FY 2010 (versus roughly half a million patent applications filed). That alone seriously factually undermines the academic proposition that most inventions are made simultaneously by different inventors.

  71. it is clear that the claims, as construed by the Federal Circuit and upon which their decision depended, did not cover a programmed computer.

    100% false. There is no reason to exclude this coverage.

    None.

    because the case was decided on the basis of its specific hardware, not on the basis that it was a general purpose digital computer operating according to a predefined sequence of stored program instructions.

    Utter ignorance. A “general purpose digital computer operating according to a predefined sequence of stored program instructions” is no longer a gp precisely because “operating according to a predefined sequence of stored program instructions” means the gp has been transformed into a specific machine. “Operating” means the machine has been reconfigured. Software reconfiguration is equivalent to firmware reconfiguration is equivalent to hardware reconfiguration. This was not dicta – this was crucial to the holding.

    Indeed, to say that a programmed computer, without more, is patentable subject matter would make a farce out of Benson, Flook and Diehr.

    On the contrary, Diehr makes this point evidently plain. Of course, the Justices could have been more forthright about this in the substantial manner in which Diehr actually reverses the earlier decisions, but the highest Court sometimes does not like to come out and outright say what it otherwise does say.

  72. Just a note, I agree with State Street bank and disagree with Rader, with the MOT and with Bilski. I think any use which is concrete, i.e., real is not abstract. Physicality is not required to bring something from the abstract into the real. Bilski was in no sense abstract.

    However, my views are not the law, and now we have to deal with Rader and his Supreme Court allies from Bilski. But what did Bilski actually hold? One view is that a use that is not physical makes the claim abstract. Another view, and I think that view is held by the likes of IBM, is that the only problem with Bilski was that it did not recite a computer.

    But, as explained above, that view is inconsistent with Benson, Flook and Diehr.

  73. Can someone answer a question

    If a person is told HURRY sign this, and the Power of Atty. is invalid when they do… How can signing a Power of Atty. a month and a half later Validate what was trickery When the Atty. filed it the day the invalid Power was signed? Can anyone answer that question

  74. Mooney: “even though the applicant “agreed” that the claims could “read” on a programmed computer.”

    Why the quotation marks here, Ned?

    I believe that what the Alappeat attorneys meant by “read” was that the claim terms literally read on a programmed computer. But as these were means plus function elements, and further considering that the court construed the claim elements to cover the corresponding structure recited in the specification that include specific hardware, including barrel shifters and ROM’s, it is clear that the claims, as construed by the Federal Circuit and upon which their decision depended, did not cover a programmed computer. Remember that in proving infringement of a means plus function element, one must prove both that the accused device performs the identical function and that it employees the identical structure described in the specification, or the equivalent thereof. It is not certain that every computer corresponds to the Alappeat structure, such that the functions could be implemented by programmed instructions.

    “Conceptually, the goal is to select patents that use a logic algorithm for processing data that is implemented via stored instructions residing on a disk or other storage medium or in read-only memory.”

    Seems like a reasonable definition. Allapat’s patent would qualify as a “software patent”, according to this definition.

    Not at all, for the reasons previously stated. Alappat decided nothing of the sort because the case was decided on the basis of its specific hardware, not on the basis that it was a general purpose digital computer operating according to a predefined sequence of stored program instructions. Had the court decided this issue on that basis, I would of course agree with you. But I think that case that decided that issue was not Alappat, but State Street Bank.

    Alappat did contain dicta to the effect that a programmed computer created a new machine. But since that dicta was not necessary to the decision, is certainly left open whether a programmed computer, without more was patentable. Indeed, to say that a programmed computer, without more, is patentable subject matter would make a farce out of Benson, Flook and Diehr.

    So I have to circle back and ask the question again, when the likes of IBM say that software is patentable subject matter, what do they mean? Is it enough, in their view, to simply recite that any program is patentable if one recites the computer hardware for executing it regardless of whether the use to which the programmed computer is put is physical, or whether the use is just a number such as price (State Street Bank) or, for example, compressed data? If the latter, we run squarely back to Benson. It cannot be patentable. But, it seems, the PTO is allowing a lot of such patents given that whole classifications are reserved them.

  75. But hey, patent trolls gotta eat, too, right?

    A vacuous argument for a vacuous thread.

    Watch out for the boogymen children.

  76. Tell it to the Flook Court dawg.

    The perfect reply that shows you do not understand the controlling law.

    Flook cannot be quoted directly on this point because Flook has been cabined by Diehr.

    settled quite easily by our courts.

    Yes this was settled by our Court – the Supreme Court has shown that you are wrong – that is what is being shoved in your face again and again and again.

    You lose !!!!! Inventors win !!!!!

    !!!!! Bilski 14 !!!!!

    Long live the key – remember it well.

    !!!!! Bilski 14 !!!!!

  77. “That doesn’t mean that most of what people would call “business methods” are eligible, or indeed even directed to the Useful Arts. Indeed, the clarifying opinion of the 5th judge states that most would likely not be eligible.”

    Because the so called 5th Judge could not define business methods no clarity was established whatsoever. Which means the entire foundation for your argument has turned into logical quicksand.

    Especially since Bilksi’ Hedging method, other financial formula’s, equations, and even means of exchanging money represented only a scintilla of the vast array of methods for improving and conducting business.The other 99.9% of business methods are eligible and 6 you have no constitutional, statutory, or office policy basis for preventing these inventions from passing 101.

    :: The sound of 6 being Intellectually B slapped ::

  78. AAA JJ said in reply to 6…
    You get dummer every day. Amazing.

    6 said in reply to AAA JJ…
    You wish tard.

    AA JJ said in reply to 6…
    Thanks for proving my point.

    AI:

    CASE CLOSED!

    LOL!

  79. Malcolm “Poor Dad” Mooney thinks anyone who is successful, must be “gaming” something. He is like the guy who drives 55 in the left lane just to tie up traffic.

  80. Such artificial distinctions are immaterial to (and in fact get in the way of) innovation

    It’s not the “artificial distinctions” that get in the way of innovation. It’s the gxrbxge patents. And there are a lot of them, especially when it comes to “automated” methods of trying to sell you cxxp that a computer has “decided” that you “might want” based on [insert bxxxshxt here]. And similar gxrbxge.

    But hey, patent trolls gotta eat, too, right?

    Be careful about how you respond, by the way. You might infringe my patent. You might infringe it even by thinking certain thoughts. Well, not really. You’d have to click a key on your computer first (darn those idjxotix innovation-stifling 101 requirements!!!!)

  81. More prxpaganda gxrbxge from Mark “I love T w i n k i e s” Lemley. Lemley never met a patent he liked, although he has made his living deriding patents. How convenient. Why does anyone even listen to this guy? Because he is associated with Stanford, ergo he MUST be smart?

    LOL

  82. Depends on how you define “software”.

    So what?

    Why the quotation marks here, Ned?

    Who cares?

    Allapat’s patent would qualify as a “software patent”, according to this definition.

    And your point is…? What?

    Like I said,

    Hard, Firm or Soft, it does not matter.

    Such artificial distinctions are immaterial to (and in fact get in the way of) innovation.

    They are all just tools in the playbox.

  83. “For any of you who are familiar with patents issuing in these classes, is there a general description of what these patents are directed to, and how they are patentable under §101?

    I can’t speak to all of them, but I can tell you that most are directed to software and they are patentable “over” 101 due to PTO incompetence.

  84. Hardware, I was just raising the point that Alappat was more about a claim that was directed to a specific piece of hardware and that it was not about software at all. The en banc Feds construed the claims’ MPF elements to read on specific circuits, including barrel shifters, thus overturning the PTOs very broad claim construction of these claim elements.

    The whole issue of software, if software means a program that runs on a GP digital computer, what not really involved in the case, or at least not in the court’s holding.

  85. Ned : The claim was not to software at all,

    Depends on how you define “software”.

    even though the applicant “agreed” that the claims could “read” on a programmed computer.

    Why the quotation marks here, Ned?

    “Conceptually, the goal is to select patents that use a logic algorithm for processing data that is implemented via stored instructions residing on a disk or other storage medium or in read-only memory.”

    Seems like a reasonable definition. Allapat’s patent would qualify as a “software patent”, according to this definition.

  86. “The only problem (well, OK, not the only problem, but a critical problem) with your view of Bessen is that that last action is neither trivial not “post solution” as it is that programming step that transform the machine into a new machine (per Allapat), and it is that programming step that makes all the difference in the world (as witness the many posts here on challenges of doing something with an unprogrammed machine versus a programmed machine).”

    Tell it to the Flook Court dawg.

    I’m not going to have this discussion that was had 30 some years ago and settled quite easily by our courts.

  87. Up-thread, I asked what Bessen consider software patents to be, since he cited Alappat, which was a claim to a specific machine, whose real, physical hardware (including ALUs configured in specific ways, a pair of barrel shifters and a ROM) conducted a sequence of arguably mathematical steps that had real, physical, utility (anti-aliasing a display). The utility itself was not set forth in the claim, as that is not required for a machine claim. The claim was not to software at all, even though the applicant “agreed” that the claims could “read” on a programmed computer.

    In contrast, when a mathematical algorithm is claimed as a method, the claim itself has to have a step that is tied to a physical use.

    So, given his reliance on Alappat for the proposition that it authorized the patenting of software generally, I was more than a bit incredulous.

    I did look further into his article. Besson he does define what he means by “software patent.” He asks, “What is a software patent? In order to count software patents, it is necessary to identify them. Conceptually, the goal is to select patents that use a logic algorithm for processing data that is implemented via stored instructions residing on a disk or other storage medium or in read-only memory. Additionally, at least some novel aspect of the invention should reside in the software.”

    He goes on to list a number of software patent classifications that he states that the PTO believes to be software patent classes.

    “For this study, I use a simple selection based on USPTO technology classes that are titled data processing (classes 700-707 and 715-717) and several other classes that are reliant on software and in which software companies obtain patents (341, coded data generation or conversion, 345, computer graphics processing, 370, multiplex communication, 375, digital communications, 380, cryptography, 381, audio signal processing, 382, image analysis, 726, information security, and 902, electronic funds transfer). I use the patent classification as of December 28, 2010 (the USPTO regularly reclassifies
    patents).”

    For any of you who are familiar with patents issuing in these classes, is there a general description of what these patents are directed to, and how they are patentable under §101?

  88. 6,

    At least you recognize that Ned is talking about machines and you (think) Bessen is talking about actions.

    The only problem (well, OK, not the only problem, but a critical problem) with your view of Bessen is that that last action is neither trivial not “post solution” as it is that programming step that transform the machine into a new machine (per Allapat), and it is that programming step that makes all the difference in the world (as witness the many posts here on challenges of doing something with an unprogrammed machine versus a programmed machine).

  89. “6, there was NO STEP.”

    Ned, I understand what you’re saying, now understand what I’m saying, which is separate from what you are saying.

    The “step” to which he is referring is likely the preverbial “step” of the “post solution activity” i.e. programming the computer to “put the algorithm on the machine”.

    I can’t make this any plainer for you. I understand what you’re saying, but I’m telling you that he was talking differently than what you’re thinking.

  90. 56 responses to this thread in a single day and all but three (this one and the ones at 8:20 and 10:00 AM) are worthless.

    People, do you not have better things to do than to troll this topic?

  91. 6, there was NO STEP. The claim was to a machine. It had practical utility.

    So, I again ask, what is it that Besson is talking about? Right now, I have no idea.

  92. “That does not change the fact that the Supreme Court used that term in a manner that shows that your desired meaning simply is wrong.”

    O rly? If you’re not too terribly busy do plz to be citing.

    ” Dicta or not – your rendition of “Useful Arts” as a term of art that does not include business methods and applied software fails.”

    I did not say that it does not include “business methods” and “applied software”.

    “of “method” excludes business methods” and in direct counter to your suggestion: “The argument that business methods are categorically outside of § 101′s scope is further undermined by the fact that federal law explicitly contemplates the existence of at least some business method patents. ‘”

    Yeah that federal law meant to protect folks from the judiciary having accidentally WHOOPS having introduced them.

    The absolute stu pidity of the position that because a federal law was enacted to help stop and evil then the evil must be congressionally sanctioned is absurd on its face… but moving on.

    “Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act’s text. ”

    I could be missing something, but I’m not discussing the patent act. I’m discussing the patent act’s mo fin constitutional basis.

    “These are all five member majority holdings. All of these paint the term of art “Useful Arts” to include that which you would wish was not covered.”

    I have not taken any such position. I am willing to concur with the court’s holding, as I’ve noted several times. If they want to refuse to place a restriction on “business methods” because of this and that reason and because they surely feel like it should be up to congress then that is up to them. That doesn’t mean that most of what people would call “business methods” are eligible, or indeed even directed to the Useful Arts. Indeed, the clarifying opinion of the 5th judge states that most would likely not be eligible.

    And I note that you still didn’t cite anything worth looking at in the decision, so I’ll ask again for software related cites that are in the majority position. Also, if you don’t mind, take a look at the minority position that did address them in passing. And note that it is a minority. And further note that nobody bothered to bring up the constitutional issue save in amicus briefs.

  93. Lulz

    That’s pretty funny coming from somebody who doesn’t understand the difference between evidence and facts.

  94. BOO HOO HOO HOOO HOOOOOOOOO!!!!!!!

    Would such an “accusation” be a problem because you believe that nobody “games the system”? Or would the “accusation” be a problem because as long as people are obeying the law there’s nothing “wrong” with trying to enrich oneself at the expense of others and/or the functionality of the system itself, and therefore it’s “unfair” to criticize the tiny, tiny minority of the population who engages in such behavior by referring to that behavior as “gaming”?

    Which is it?

    LOL. I could care less what you think, txrd.

  95. “I have not read Lemley’s article yet, but did he again accuse patent applicants of “gaming the system”?”

    That is less of an accusation and more of a finding of fact isn’t it?

  96. I have not read Lemley’s article yet, but did he again accuse patent applicants of “gaming the system”?

  97. Right on, thanks anyway guys but I found a pretty good site for a fairly local web design company that is pretty much full service in terms of admins and some basic marketing.

    link to acscreative.com

    I’m going to shop around a bit of course but they seem pretty in the know so far. They gave me two similar sites to the site which I’m pitching.

  98. Not sure where the best place is right now to get a website set-up. It’s been about 10 years since I paid to have a website set-up.

  99. The opening line:

    “In 1994, the Court of Appeals for the Federal Circuit decided in In re Alappat that an invention that
    had a novel software algorithm combined with a trivial physical step was eligible for patent protection.1″

    Alappat was not about a process, but about a machine. It did not involve a trivial physical “step.”

    Step? Step?

    What step?

  100. The definition does not matter.

    Hard, Firm or Soft, it does not matter.

    Such artificial distinctions are immaterial to (and in fact get in the way of) innovation.

    They are all just tools in the playbox.

  101. 6, he is talking about "software" firms, "software" startups, and the like.  Alappat had nothing with that kind of software.  Nothing at all.  Alappat was about firmware and physical hardware.  That is not the topic of his paper.

    I STILL would like to have a definition from him or from anyone what he is talking about if he references Alappat as a software case. 

    Ned

  102. 6,

    Your reference to dicta here is meaningless.

    Any attorney (or non-attorney for that matter) would know that we are discussing a term of art that is only covered by the dicta. That does not change the fact that the Supreme Court used that term in a manner that shows that your desired meaning simply is wrong. Dicta or not – your rendition of “Useful Arts” as a term of art that does not include business methods and applied software fails.

    That is what we are discussing – Own it, and stop making such cry-baby posts.

    And you need to read the majority portion again – it was in that portion that my points concerning “Useful Arts” are fleshed out – see 130 S. Ct. 3218, 3225-3226 (and specifically at 3226 ‘words will be interpreted as taking their ordinary, contemporary, common meaning.‘” citing Diehr, supra, at 182, 101 S. Ct. 1048) and at 3228: “The Court is unaware of any argument that the “‘ordinary, contemporary, common meaning,’” (again affirming Diehr, supra, at 182, 101 S. Ct. 1048), of “method” excludes business methods” and in direct counter to your suggestion: “The argument that business methods are categorically outside of § 101′s scope is further undermined by the fact that federal law explicitly contemplates the existence of at least some business method patents.

    And finally at 3231:

    Today, the Court once again declines to impose limitations on the Patent Act that are inconsistent with the Act’s text.

    These are all five member majority holdings. All of these paint the term of art “Useful Arts” to include that which you would wish was not covered.

    You would do well to understand and follow their lead.

  103. “It does not take an attorney to recognize what that term of art actually means here.”

    It doesn’t take an attorney to recognize what “dicta” means and would have been in the Bilski decision. Yet, nevertheless here we see you arguing that the USSC could have “set the record straight” regarding subject matter not before it.

    And just fyi, you need to reread which parts of the decision had a majority and which parts had 4 and which other parts had 4 and which parts had 2. You may find that your position has the same 4 judge backing as mine does, if your side actually has any judges on it which it probably wouldn’t if a case were properly before it. Scalia only joined the majority for different reasons.

  104. “Have you ever worked with a software company?”

    No, thank go d, shudder. I almost started one myself though straight out of college. To be an innovative company no less.

    “Lumping all software companies together for patent purposes is not just misleading it rises to the level of intentional deceit. If you knew the first thing about software companies, you would not be so confused by my post.”

    Well it wasn’t me that wanted to lump the all together. I just wanted to cherry pick the proper batch, not just the batch of companies you worked for.

    “And focusing on the SUCCESSFUL innovative companies weeds out the 90+ percent of software companies that are not interested at all in innovation, but in performing a well-known (and needed and appreciated and useful) service.”

    That’s good, those are the ones I want to cherry pick. The 9%- that are left. I refuse to believe that you could have personally worked at more than 2-3% of all software companies in the country, so let’s factor in the other 6-7%.

    How does the study turn out? Not so well for your side?

    I know, I know. Not quite so well for your side. But that old time patent religion will keep you going. Sing us a hymn eh?

    In all seriousness though, and apart from our roles as hero and villan respectively, do you know where I can find a great website coding/designing firm to do the dirty work of making a non-patent related site I’m considering making? Don’t worry, I won’t use this company to spread my patent related lies and propaganda. Also, do you know about how much such a thing would normally cost for a decently sized site? Folks besides NWPA are welcome to chime in.

  105. Frankly, I found William Rosen’s “The Most Powerful Idea in the World: A Story of Steam, Industry, and Invention” much more insightful than the majority of academic papers published in recent years.

    It is not that I agree with all of Mr. Rosen’s points, but it cannot be denied he has gone to great lengths examining the work of Watt and others from a historical and quasi-legal perspective.

  106. I guess Lemley read Malcolm Gladwell’s article on reinventing invention. I’m not saying he’s a copycat, but c’mon academics, stop wasting people’s time.

  107. Oh my, what a load of nonsense that is 6.

    Have you ever worked with a software company? Lumping all software companies together for patent purposes is not just misleading it rises to the level of intentional deceit. If you knew the first thing about software companies, you would not be so confused by my post.

    And focusing on the SUCCESSFUL innovative companies weeds out the 90+ percent of software companies that are not interested at all in innovation, but in performing a well-known (and needed and appreciated and useful) service.

    Oh well, there is too much other nonsense in your post to respond to. I see by your posts that you have decided to follow the dark side of the patent force.

    Glad you are going to the beaches. Ocean City is a fine beach.

  108. You work with SOME companies that fit that description.

    Be precise with your wording NWPA. You might mislead the tards in attendance.

    Consider what would happen in the study you proposed. How many companies are there besides the ones you work with that would fit your criteria? A lot? How would they affect the study?

    So tiresome to discuss things with you. You always attempt a conflation of an issue, an ambiguation that misleads, leave out some key facts etc. etc.

    “You see those of us that actually practice patent law understand the role of patents.”

    You mean the role foisted upon them in recent years :/ To the detriment of all involved, including the public. According to you, it was Reagan that is largely? to blame. That is a shame, and I hadn’t heard about that.

    But please, be precise with your language sir. Stop leaving the important parts out.

    “Those that sit behind desks and are desperate for funding and publications to get tenure and buy the new larger house have not a clue–and don’t care what the consequences of thier actions are as long as they get theirs. ”

    Kind of like those that sit behind their desks and are desperate for clients to get money and buy the new larger house have no clue– and don’t care what the consequences of their actions are as long as they get theirs. Right?

    Come on man, tell us the whole story. Don’t leave the important parts out. People like JD can’t afford a pay cut to 150 grand to make things right at the office for all of us. 150 large. I mean come on.

    It is ok to want money and be corrupt NWPA. But you can at least man up and tell us that’s what you are. There’s no shame in it, nobody blames you. You take your orders from a duly appointed judiciary, we understand. Their confusion is your confusion. You must defend their confusion or all of you look bad. I understand how the system works.

    Already went to the beach. But I should look into going again before the end of the summer. It’s like super easy to pick up chics.

    SUPER EASY.

    Oh, and for those that haven’t been, Atlantic City is pretty cool.

  109. You mean the supreme court that relied on an attempt to protect people from a threat posed by a mistake by the CAFC to justify the reason for the threat in the first place?

    No, I mean the Supreme Court that could have ‘set the record right’ to your standard and instead chose not to, choosing to give the expansive reading of Useful Arts its broad reading that includes business methods and applied software – the very position that defeats your statement.

    It does not take an attorney to recognize what that term of art actually means here. And decidely, it does not mean what you want it to mean.

  110. Is it just me who holds the opinion that once more Mr. Lemley is demonstrating a remarkable ignorance of patent law and its historical underpinings?

    I read his article in the hope that it might provide insight. I concluded my reading with the opinion that once again he has so genericized his arguments that his article is nothing more than another call to arms for our patent laws to be abolished since virtually nothing is incentivized by them.

  111. “Quite the contrary – even the Supreme Court recognizes the expansive view of that term. ”

    You mean the supreme court that relied on an attempt to protect people from a threat posed by a mistake by the CAFC to justify the reason for the threat in the first place?

    Yeah I remember those guys. And I also remember the oral arguments wherein all the attorneys in attendance could palpably feel the disapproval of software even though it wasn’t even at issue in the case at hand.

    Had software and associated attempts to claim software by getting a programmed machine etc been before the court that day we wouldn’t be having this conversation it would have been ended in my favor that day. Ask anyone there. Including Eugene the Eskimo. You can even read it in his transcript. Keep in mind that he is a cheerleader for your position.

  112. Sorry, 6, but I work with companies that fit that description. You see those of us that actually practice patent law understand the role of patents. Those that sit behind desks and are desperate for funding and publications to get tenure and buy the new larger house have not a clue–and don’t care what the consequences of thier actions are as long as they get theirs.

    Then there are people like you …but that is another post. I hope you are having a good summer 6. Are you going to the beach?

  113. within the Useful Arts, which is a term of art. A term you might recognize if you were a real attorney.

    Quite the contrary – even the Supreme Court recognizes the expansive view of that term. See Bilski.

    Sorry 6, but that does include business methods and applied software.

  114. “6: all I’m saying is that if your competitor is filing like crazy, and will one day try to enjoin you, well then you have to file just as crazily, and even more prolifically, regardless whether you would otherwise have bothered to patent anything in your field of endeavour. ”

    Or you could have some stones. You could kill your competitor and anyone who attempts to take control of any patent applications filed thereby. You could also simply be a better businessman and build and unassailable business. And, at the same time, publish your work before he can file on it and thus prevent him from enjoining you from using your own work. Or you could just get the courts/congress to end this fiasco.

    Finally, you could just buy your competitor out.

  115. “Try a different article. This one you go to some software companies that have grown large and/or been purchased by large corporations and have produced innovative products. Then, dweeb, look at those companies and see what their behavior has been and the role of patents in the growth and success.”

    And when it turns out that such a study also discredits NWPA’s position he will dream up yet another study to do, and yet another and yet another because you will never defeat that old time patent religion!

  116. It may or may not be a useful “art”, that you could debate to death, but it sure as f isn’t within the Useful Arts, which is a term of art. A term you might recognize if you were a real attorney.

  117. Dope Lemless: How nice of you to write down what Ronald Reagon’s administration said in the early 1980′s for the reason to create a strong patent system. The patent system the Reagon administration created was to combat the malaise. It was to force corporation to innovate or lose. Really, Lemless, you should give credit and not steal ideas.

    “Your” ideas are the foundation of why the U.S. created a strong patent system. Shameless craven filth.

  118. Bessen’s article is typical ivy tower nonsense produced by someone that doesn’t actual work with real companies that really get bought or grow to a large size.

    Try a different article. This one you go to some software companies that have grown large and/or been purchased by large corporations and have produced innovative products. Then, dweeb, look at those companies and see what their behavior has been and the role of patents in the growth and success.

    Nothing Lemless produces is of interest. He is a completely discredited dope.

  119. “Surprise surprise, patents in arts outside of the useful arts don’t really benefit those involved in that art and don’t benefit society what so ever.”

    Software is not a useful art?

  120. “I hardly believe Bessen is talking about firmware.”

    Oh, I guess that’s why he specifically brought up Allapat then, that explains everything. He meant only non-firmware software.

    Although I understand the distinction you’d like to make Ned, and it may be a worthwhile one to make, it certainly wasn’t being made by the author of this paper.

    “What is the the subject matter of this conversation?”

    See the first sentence:

    link to en.wikipedia.org

    Or whatever industry publication you’d like to.

  121. 6, even though “firmware” may be considered to be software in a sense, I hardly believe Bessen is talking about firmware.

    I think State Street Bank and Bilski were both about software. When the likes of IBM get on their collective soapboxes and argue that software is patentable but that Bilski and State Street Bank inventions were not patentable, I begin to wonder what IBM is actually talking about.

    What is the the subject matter of this conversation?

  122. For 6 to classify the patent racing theory as re-(his word offends the filter so see above) makes sense to me for it strikes me as at least 15 years late. See for example an EPO brochure from 1996 entitled “Patent Strategies”.

    6: all I’m saying is that if your competitor is filing like crazy, and will one day try to enjoin you, well then you have to file just as crazily, and even more prolifically, regardless whether you would otherwise have bothered to patent anything in your field of endeavour.

  123. “But, they (almost always) live to regret it if they do not, their product become successful, and they begin to face competition from other firms.”

    OMG! COMPETITION FROM OTHER FIRMS! O NOES! THE FREE MARKET!!!!!!111!!!!! HELP US FEDERAL CIRCUIT!!!!! RESCUE US FROM SUCH A HORRIBLE THING!!!!!!

    lulz, nedo.

    “In contrast, developing a new integrated circuit product can cost millions. No one invests that kind of money without patent protection.”

    Who’da thunk it? The useful arts are expensive sons of guns. Maybe, oh, wait, maybe we should protect such innovation! Maybe we could call that protection “patents”!

    “Once one consisders the above, one can begin to understand why software startups often do not invest in patents, at least at the beginning.”

    Also because it isn’t the useful arts :/ Pity.

  124. Idk I haven’t bothered to investigate such a re tarded “theory”. And I surely haven’t bothered to wonder whether or not patenting things outside the useful arts would support such a theory as such a thing is by definition impossible.

  125. “What is software?”

    What are you? Some kind of philosopher?

    In terms of “fundamental reality” idk Aristotle, but the definition by those of skill will suffice for our purposes.

    “Alappat did not appear to be about software. ”

    O rly? I guess that’s why all software attorneys <3 it like it's their sig other. Or, the hand that feeds.

    "6, please define "software." I am suddenly having a hard time understanding your complaints about software patents."

    I hardly complained, I just posted a response to the article.

    But, why ask me? Why not ask one of ordinary skill, or he ck, just wiki it.

    link to en.wikipedia.org

    To be clear though, iirc, the “machine” in Alappat was nothing more than an old “machine” defined by the algorithm. How one defines ones invention matters Nedo. If one defines it in terms of structure then fine. If one defines it in terms of the software, then one may as well look to what it is the applicant is intending to capture in the claim. Is it just a machine? Or is it the software? Both?

    But also to be clear, I’m not asserting in this thread that 101 should be used to kill such inventions necessarily. That may very well be a flaw in 101.

  126. Ned writes: “Only when they taste success, do they bring in or consult the professionals. But, by then, it often is too late.”

    That would be the likes of Microsoft would it Ned?

  127. What is software?

    Alappat did not appear to be about software. The claim was to a machine. The machine had a disclosed physical utility directly linked to a novel algorithm. Novel, useful machines are patentable.

    So understood, Alappat was at best about “firmware.”

    6, please define “software.” I am suddenly having a hard time understanding your complaints about software patents.

  128. Regarding software patents, it is clear that many software startups actually do not invest in protecting their core technology. But, they (almost always) live to regret it if they do not, their product become successful, and they begin to face competition from other firms.

    Because software requires little capital investment to get off the ground, software startups do not need serious money to get started. The folks who (typically) start such firms are programmers and back-end types. Only when they taste success, do they bring in or consult the professionals. But, by then, it often is too late.

    In contrast, developing a new integrated circuit product can cost millions. No one invests that kind of money without patent protection.

    Now, up the ante just a bit to drugs. Here, the investment is in the hundreds of millions to get a new drug to market. Drug firms do not even begin the development of new drugs unless the subject matter is clearly patentable.

    Once one consisders the above, one can begin to understand why software startups often do not invest in patents, at least at the beginning.

  129. 6 is not the recent behaviour of the big corporations involved in computer program products the best evidence there is, in support of the Lemley “patent racing” theory?

  130. “James Bessen, A Generation of Software Patents
    Do patents benefit software firms? James Bessen examines this issue through both a survey of existing literature and a new empirical study. Bessen finds that although the number of software-related patents has grown rapidly over the past decade, the share of those patents obtained by software firms has remained relatively small, and is largely accounted for by the activity of a small number of large software firms. In other words, most software patents go to firms outside the software industry. Bessen also provides data that brings into question the value of patents to startup software firms and examines changes in the probability that a software patent will be involved in litigation during the first four years of its patent life.”

    Surprise surprise, patents in arts outside of the useful arts don’t really benefit those involved in that art and don’t benefit society what so ever.

    Who’da thunk it?

    “In 1994, the Court of Appeals for the Federal Circuit decided in In re Alappat that an invention that had a novel software algorithm combined with a trivial physical step was eligible for patent protection.1 This ruling opened the way for a large scale increase in patenting of software.2″

    In 1994 the CAFC made a tiny misstatement of what the law was based on cases that bore no relevancy to the question at hand. Surprise surprise. Numerous tards took that as a go ahead to file on whatevz. Indeed, a whole money suc king “industry” of scribes sprung up around it.

    At least they are men about it though, press them hard enough ala Bilski’s recantation of state street nonsense and they’ll take it back. You just have to hold their feet to the fire and press the proper issue.

    “Given this controversy, economists began looking at the use of software patents in the software
    industry during the 1990s.”

    There is no controversy, only CAFC patent protectionist “mistakes”. As usual.

    The only real issue is why the USSC didn’t straighten out the Alappat fiasco immediately. And why no major software company has ended the fiasco themselves. They plainly used to be all against it, I cannot imagine that the poor reasoning in Alappat suddenly made them about face. Perhaps they did an analysis and thought they stood to gain if they made a quick land grab?

  131. Why does Lemley think the patent system doesn’t incentivize simply because most inventions are made by a team and not by a sole inventor? The think being incentivized is an inventing entity. It makes little difference if the entity has more than one person.

  132. Lemley is just wanting a piece of everyone else’s PIE.
    He figures if he can get a piece of everyones, he’ll have more than enough to keep for Himself!
    Sounds so lemmmenmeee

  133. 68 Lemley pages to read. Meanwhile, I wonder:

    1) What’s so new about “patent racing” anywhere else in the world than the USA; and

    2) How can the good professor possibly contend that there is simultaneous independent invention when everybody knows that there are only 200 interferences per year. That statistic alone does for his theory, doesn’t it?

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