By Dennis Crouch
One major problem with software patents is their forced lack of transparency. The USPTO has granted hundreds of thousands of patents that should rightfully be termed “software patents,” but almost none of those patents include a claim directed to “software.” Rather, the innovative software is being hidden by innuendo and obfuscation because of the perceived ban on patenting software per se.
I contend that if we are going to allow software patents, we should do so openly and honestly. In that world, patent claims would be able to match the words of the computer scientist inventors and might simply be written as “Software comprising …” or “A computer program comprising …” We are not in that world.
In the 1960’s the USPTO began pushing against the patenting of bare computer software. Its 1968 guidelines formalized the USPTO’s position against computer programs as unpatentable mental steps under 35 U.S.C. § 101. That approach was largely vindicated by the Supreme Court cases of Gottschalk v. Benson (1972) and Parker v. Flook (1978). However, the combination of Diamond v. Diehr (1981); new leadership at the USPTO; and the formation of the Federal Circuit all rejuvenated the patenting of computer software. Many still hold to the idea that software per se cannot be patented because the software is not a machine or apparatus and because the software only becomes a non-abstract patentable process once implemented on a particular device. In Bilski v. Kappos (2010), the court rejected categorical exclusions of business method patents (and thus presumably software patents). At the same time, however Bilski and the subsequent case of Mayo v. Prometheus (2012) serve to revive the pre-Federal-Circuit case law and create further direct tension with software patents.
The result from this long history is that we still have software patents but they are hidden under the surface. They are harder to find, harder to examine, harder to understand, and thus much more problematic than they need to be. After fifty years of controversy; meandering administrative practice; and inconsistent Supreme Court decision making, it is time for the courts to take a stand and deliver the law in a way that is clear and precise. Finally answer the question: Is software patentable?
There are a few other reputable survey sites that aren’t listed, but you do have a nice list of some of the best ones.
link to surveytool.com
You already said I could have the last word, and then you posted again. What do you call that?
If you you are saying something – even though they are my words – in order to attempt to make a point (and btw, you are missing in that attempt – just like the rest of your arguments) – then am I really having the last word? Do you understand what that phrase actually means?
Clearly, I have the high road, and clearly that is a superior tactical advantage that you cannot overcome. My words – as the last words – when they come from me and are used as I use them are much better than anything you have posted.
If you must persist, then please explain how the position you align with (the low road) can prevail here.
Yes. Really.
Again, you can have the last word:
Seriously, the more effort you drive on this discussion, the worse you look.
So now trying to make the site better by removing those who would lie and those who cannot have an honest discussion is boring?
Really?
Now you’re just getting boring. Here, you can have the last word:
Seriously, the more effort you drive on this discussion, the worse you look. You continue to try to defend deplorable behavior.
“Of course, you have not answered the question, a fact that is apparent to everyone.”
Of course, I am not sure who you mean by “everyone.”
I have answered.
I have used the very words of the Professor Crouch.
It is now on your side to answer why you would think that Prof. Crouch’s direct words do not apply – you have already indicated that you think Prof. Crouch was being ironic or sarcastic. Given the context of making things better on this blog, your “explanation” is without merit.
“I don’t, and never have.” Perhaps not directly, but indirectly such is the only take away and you have YET STILL NOT addressed this – rather, you would continue to draw arrows from your quiver and shoot from the low road.
Seriously, the more effort you drive on this discussion, the worse you look. You continue to try to defend deplorable behavior.
Brazen? No, more like righteous. You continue to give me the high road, and then fault me for taking it.
Asked and answered.
Your brazenness is breathtaking, given that I’ve reproduced the entire conversation above. You are indeed a piece of work.
Of course, you have not answered the question, a fact that is apparent to everyone. So here it is once more: Do you still maintain that Professor Crouch said that the Patently-O terms of service prohibit lying?
Now answer my question – How do you maintain that Prof. Crouch was espousing lying?
I don’t, and never have. See, that’s how you answer a simple question. Now you try.
“why can’t you answer a simple question?”
Asked and answered.
What it “certainly looks like to you” is of course colored by your continued bias. I have not mischaracterized your position at all. It follows logically from your snarky comment and your continued insistence that somehow I either misunderstood what Prof. Crouch said or was purposefully lying. And yes – that is the very topic under discussion.
You have painted yourself into taking the low road. Too clever by half you have been in choosing your arrows and the target for those arrows.
Now answer my question – How do you maintain that Prof. Crouch was espousing lying?
“While you’re at it, why not answer my question about the rights that users get under the Patently-O terms of use? Come on, let’s have that “adult, reasoned or objective discussion” that you pretend to want. Or were you being dishonest when you posted that?”
Your question was evidently snark and deserved the “adult” answer it got.
I did not change the subject at all – I brought it to its proper focus. So actually my focus is what you should be addressing because that is the point of the conversation, and your view would be that Prof. Crouch actually wants such lying, because according to you, Prof. Crouch was being ironic or sarcastic when he point blank said “NO LYING.”
Or you still trying to say, in some type of “adult, reasoned and objective” way that lying is acceptable? Is that how you roll? Or is it acceptable to you because those that do lie are the ones with whom your “beliefs” run with?
Your snideness about “dishonesty” is what is ironic here – but not how you think.
Let me know why you think the context indicates that Prof. Crouch was being ironic or sarcastic when he posted that lying was not allowed on Patently-O – if you can do so and pass the laugh test.
Actually, the question on the table is whether “Prof. Crouch has personally posted that lying is not allowed by posters per the terms of use.” The quote is yours. The emphasis is added by me, but is particularly relevant, since the context is a discussion, which you initiated, regarding which behaviors are prohibited by the Patently-O terms of use. Your attempt to change the subject smacks of dishonesty. Or perhaps you’re just mistaken (again).
Are you still maintaining that “Prof. Crouch has personally posted that lying is not allowed by posters per the terms of use”?
While you’re at it, why not answer my question about the rights that users get under the Patently-O terms of use? Come on, let’s have that “adult, reasoned or objective discussion” that you pretend to want. Or were you being dishonest when you posted that?
“bias against sanctimonious boors.”
“Sanctimonious boors” is not equivalent to my taking the high road when you so generously provide it.
NOT taking the low road is rather the point here. Sure, it is always your choice to do so – it is just that it is not such a great choice.
Their comments only reinforce the points that I make.
There is no interest in having a substantive discussion from such, because such an objective discussion removes their primary tactics.
More self-defeat from MM.
You evidently have no point to make. Your sarcasm and cynicism do nothing to refute the points that I have made.
Which points did I miss, anon? Let’s keep on topic, please. Per your express request, we are discussing the applicability of the Patently-O terms of service to various types of commenting behavior that you see or imagine you see. I think that I explicitly addressed every point you have made about the interpretation of various provisions of those terms. I’ve also rebutted your argument regarding Professor Crouch’s supposed endorsement of your interpretation of those terms. Finally, in an attempt to advance the discussion, I directly asked you a question regarding the scope of any rights that accrue to you or any other user of the site under the Patently-O terms, which you have ignored. Have I missed anything?
Or perhaps you disagree with my position on how to make this a better site?
Yes, I do indeed disagree. I would have thought that to be clear by now.
Why do you think that Prof. Crouch said something other than what I indicated? I am pretty sure that I am not mistaken, and welcome a simple confirmation from the good professor.
Because I went back and checked. You either have not, or you are being dishonest. I’ll give you the benefit of the doubt and assume the former. However, isn’t willful blindness a form of dishonesty?
You and Leo sound like a couple of juvenile bullies. It’s telling how you have time to denigrate anon but can’t seem to find and apply the USPTO’s guidance on Integration analysis.
However one skilled in the art would view it, but I guess it should be before him.
Dawg Hallway Monitor
link to youtube.com
As for your comment about me being some type of self-appointed hall monitor, I wa asked directly and personally by Prof. Crouch for my ideas on making this a better site….
Why do you think that Prof. Crouch said something other than what I indicated? I am pretty sure that I am not mistaken, and welcome a simple confirmation from the good professor.
This stuff is even funnier if you imagine it’s Cartman saying it.
H!tler.
Fish scales,
What is your view of science fiction (admittedly non-enabling) meeting your statement above for use in a 103 rejection?
You evidently have no point to make. Your sarcasm and cynicism do nothing to refute the points that I have made. Or perhaps you disagree with my position on how to make this a better site? Care to actually contribute, or is this too, not important enough for you?
Why do you think that Prof. Crouch said something other than what I indicated? I am pretty sure that I am not mistaken, and welcome a simple confirmation from the good professor.
@AgentGG “a NON-ENABLING reference may qualify as prior art for the purpose of determining obviousness under 35 U.S.C. 103.” Symbol Techs. Inc. v. Opticon Inc., 935 F.2d 1569, 1578, 19 USPQ2d 1241, 1247 (Fed. Cir. 1991).
One item in point: Prof. Crouch has personally posted that lying is not allowed by posters per the terms of use.
Actually, he did not say that. Are you lying, or just mistaken? You might want to go look at that statement again, and in context. And then you might consider some quality time with your therapist discussing “irony” and “sarcasm.”
As for your reading of the rules – I think you are reading them too tightly. They seem to come from a contracts template, and should be read as they are indicated to be read: as rules of behavior for those choosing to post on this blog.
Are you stating this as the law, or just as your opinion? Careful – you don’t want to run afoul of the “spirit” of those rules.
Here’s a question for you: you’ve assented to those terms by virtue of your many thousands of comments – what causes of action do you have under that contract against Dennis or anybody else for any “shilling,” misrepresentation, or any of the other activities you’re so concerned about?
As for your comment about me being some type of self-appointed hall monitor, I wa asked directly and personally by Prof. Crouch for my ideas on making this a better site.
LOL. Your parents must be very proud.
Leopold,
One item in point: Prof. Crouch has personally posted that lying is not allowed by posters per the terms of use.
Which reading – yours or mine – supports this statement?
your interpretation of Dennis’s pretty straightforward terms of use is ridiculous, and severely colored by your weird desire to be appointed hall monitor.
Truly. By the way, LB, the next Ban Patents Forever meeting is next Thursday. Dennis can’t make it but he sent me your check and Ned’s check and I’ll bring them with me, along with the Doritos. Remind me: do you prefer cool ranch flavor or traditional?
Oh. Well, I wasn’t going to get into it, but here goes. Your reading of Dennis’ “Terms and Conditions” is way off.
You partly quoted a term that includes “all opinions expressed by users of this site are expressed strictly in their individual capacities” – that refers to an agreement between a site user and Dennis that says that the user promises not to hold Dennis responsible for opinions expressed by other users. It is not a “rule” about whether you can advocate for someone else.
You also quote a term that says “You agree that all content posted to the Blog is the sole responsibility of the individual who originally posted the content.” Again, this is an agreement that the user will not attempt to hold Dennis responsible for stuff that Dennis did not post. Again, this is not a rule about what opinions or interests you can advance.
Finally, you make reference to a provision prohibiting fraud. I’m sure you’re aware that fraud has a pretty specific legal meaning, and that misleading someone or even misrepresenting oneself, by itself, is not fraud. You’re probably also aware that accusing someone of fraud could be defamatory. So, if you’ve got evidence that Ned is engaging in fraud, perhaps you should go to the proper authorities, instead of throwing around insinuations here. If not, then perhaps you should, uh, be quiet.
In short, I think your interpretation of Dennis’s pretty straightforward terms of use is ridiculous, and severely colored by your weird desire to be appointed hall monitor.
Does that satisfactorily answer your question?
By the way, what is my obvious bias? I’ll readily admit to a bias against sanctimonious boors.
I’m sorry. What was the question?
No answer Leopold?
Should I be surprised?
Ned: “I claim: computer programmed to execute an abstract algorithm. Do you seriously, I mean seriously, contend that such is an “new” machine?”
Mr. Heller, if as the Prometheus Court told you, a concept integrated into a process can transform the process into an inventive application of the concept, why can’t technology, such as software, integrated into a process transform the process into an inventive application of the software?
Surely you would not say that technology is more abstract than a mere concept. And please no more juvenile name calling or dusk kicking.
Just honestly answer the question.
Ned, how does your post at 9:32 PM advance anything?
anon, you are a w(h)inner, arn't you?
Perhaps then you and Prof. Crouch should reconsider that response, reconsider what the stated rules of the blog are, or both.
If an attitude (and actions) like yours is permissible Ned, I want to know if I should let prisoners keep dying.
I have read Dennis's response to your complaining about shills.
“ I do not represent, at present, any defendants in software patent cases. Does that help?”
The careful meticulousness of this answer while STILL not answering my question about your relationship with Alliacense is downright damming.
It helps alright – just not in the way you think.
101 Integration Expert (and openly to all),
My “beef” is not with Leopold here, as his was a legitimate question (albeit, one that indicates that Leopold himself was not aware of the rules of the board).
Prof. Crouch has made known his desire to “clean-up” the posts, or more pointedly, the discussions. He has asked me personally how this could be accomplished.
My posts on this subject, while admittedly sounding preachy and a bit holier-than-thou, are geared to what I see are the biggest problems on the board – content and an unwillingness to recognize an opponent’s validly made point (either a point in law or a point in fact, or even a point of policy, when such a point in policy is presented as such).
I really don’t mind discussions about policy. But when people pretend that policy is actuality and ignore law and ignore facts, I get a little perturbed. And when people ignore posts pointing out items that counter the “policy as law or fact,” and continue to post purely on policy, and then pretend that policy is all that there is AND then indications point out that this behavior is driven by non-personal stances in direct contradiction to established rules of posting, I feel a sense of righteous indignation.
There is no conversation to be had – that can be had – with those who refuse to have a legitimate conversation.
Prof. Crouch has been explicit about this in his rules. He asks how we can have a better forum, and the answer is already there in his rules. A serious suggestion is to simply delete all posts in violation. If someone persists, or complies but only for a short time and then repeatedly retreads such behavior (specifically offenders such as MM and Ned), then suspend them. Recurring behavior after a suspension should earn an outright ban. The fact that an article written fifty years ago shows that in the real world agendas will not go away indicate that such heavy-handed measures would be required if Prof. Crouch is serious about wanting a better forum.
“The “post as law when it is not”-“don’t answer the correcting rebuttals”-and-“retread the exact same g_@rbage” later game should not be tolerated by anyone.”
Well said anon. Mr. Heller and Mr. Bloom apparently do not care about such ethics and rules. None the less please continue posting the law and pointing out their lies, and misrepresentations of the law when appropriate. It is the only way to keep this a fair and balanced forum and help those of us that are honestly trying to learn what the state of patent law is today and how to best follow it.
Anyone that reads this forum regularly knows I am in favor of software, and business methods and a broad and inclusive interpretation of 101. And it just so happens that everything I am for is already the law, especially with the Courts use of “Integration”.
And if the Court had banned business methods, disallowed software, and narrowed 101 to say, the MoT, I would still be on this forum advocating for the opposite of those legal positions.
But what I would not do is pretend it never happened, and act like the actual law is the opposite of what I wish the law were.
This is what Mr. Heller and company do and it is despicable.
Leopold (and Ned, whom it seems cannot be bothered with the rules while decrying others who in his view do not play “by the rules”)
In at least:
all opinions expressed by users of this site are expressed strictly in their individual capacities
and
You agree that all content posted to the Blog is the sole responsibility of the individual who originally posted the content.
not to mention:
You agree that you will not knowingly and with intent to defraud provide material and misleading false information.
Leopold,
Can you tell me honestly that when Ned posts – as law – views to directly advance his client’s interest that are not law, and refuses to engage in an honest discussion of rebutting points that he is abiding by either the letter or the spirit of the terms of use of this site?
I have NO issue with people expounding their views on how the law should be – as long as it is clear that they are advancing positions not in accord with how the law IS and they are willing to accept, acknowledge, and deal with counter points in an adult manner. The “post as law when it is not”-“don’t answer the correcting rebuttals”-and-“retread the exact same g_@rbage” later game should not be tolerated by anyone.
Look at the premise of Prof. Crouch’s 50-year old software thread and look at my initial post there. Ned’s behavior is exactly the wrong behavior and exactly why those who wish to obtain their lawful rights must be careful.
See link to patentlyo.com
Have you even read the terms of use for this site?
LOL. Which term is Ned violating, anon?
Comments are closed.