By Dennis Crouch
I recently asked the courts for a decision on whether software is patentable. In my short essay, I argued that we have a de facto system that allows the issuance of software patents, but only after the innovative software elements are "hidden by innuendo and obfuscation." This makes software patents "harder to find, harder to examine, harder to understand, and thus much more problematic than they need to be."
In response, I received a nice note from longtime patent attorney Michael Rackman of Gottlieb Rackman in NYC. Rackman highlighted his 50-year-old article on the topic published as a student note in the 1963 volume of New York University Law Review. It turns out that my suggestions are simply a refrain echoing his thoughts from so long ago. Rackman's 1963 article concluded:
It is theoretically and practically possible to secure effective patent protection for computer programs. The patents issuing as a result of first attempts probably will obscure, or already have obscured, the true nature of the claimed inventions.
Perhaps naïve at the time, Rackman was hopeful that the intentional obfuscation would end soon. He wrote:
Perhaps in the future it will be common practice to seek and secure program patent protection without resort to circuitous artifices.
I guess that future is still ahead of us.
Notes:
- Michael Rakman, Note, The Patentability of Computer Programs, 38 N.Y.U. L. Rev. 891 (1963).
- See also, Orin Kerr, Computers and the Patent System: The Problem of the Second Step, 28 Rutgers Computer and Technology Law Journal 47 (2002) ("After almost forty years of debate and case law development, we seem no closer to a consensus than when we started.").
anon, I do not deny it, but in fact Iassert that Rich acted as if he had overturned all prior cases relating to functional at the point of novelty. He said so in fn. 11 of Fuetterer.* He said so in Tarczy-Hornock. cf. My Friend, Giles Rich; Arnold, Tom, 9 Fed. Cir. B.J. 39 (1999-2000) http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/fedcb9§ion=17
Rich was a patent god in his own mind. He, in his view of himself, was king of patent law and could, in footnotes, overturn Supreme Court cases law that had stood and was followed for more than a 100 years.
http://scholar.google.com/scholar_case?case=2046907009625983349&q=fuetterer&hl=en&as_sdt=2003
And you act that the fact that you can supply NO law on point post-1952 is a matter of no consequence.
anon, you act as if Rich overturned Halliburton and all the cases that we before it on point, all the way back to O'Reilly v. Morse. Just how did he do that?
Don’t say it Ned -prove it. I will note that this yet another retread area as I have asked you in the past to use post-1952 law to support your contention.
You have not – will not because you cannot – quite to the contrary, the law is as I indicate: it is the claim as a whole that is the point of novelty.
anon, there is nothing in the '52 act that undermines what these cases have to say about PON with respect to Section 112.
Been there. Done that. Pre-1952 cases.
You do not have the right law Ned.
anon, you really need to read Halliburton in view of Faulkner v. Gibbs, 338 US 267 – Supreme Court 1949
The claims in both cases were "combination" claims. In the one, the PON was functional. In the latter, the novelty was in the combination.
“ OK for combination claims. Not OK for the point of novelty.”
Ned read that again to see how nonsensical your statement is. Was this or was this not a combination claim? For any combination claim, the “point of novelty” is the claim itself, AS A WHOLE.
It really is about time you use actual law in your conversations on these types of matters.
Anon, you have to understand what they said. They said that the way one calibrates makes the coefficients different. None of that is in the claim.
"Programmed to" do X? Like in means for doing X?
Sure.
OK for old elements. OK for combination claims. Not OK for the point of novelty.
“So now we know that Ned realizes that a change to a machine creates a new machine .”
And if we know Mr. Heller, he will be flip flopping on this at the very next chance he gets. Especially if Malcolm or 6 start acting out. Heck I bet you can even get Ned to revert back to saying Bilski held business methods were not patentable subject matter. Like they say in Texas, a snake can’t change his wiggle,.
Well, at least he did answer the five resistor question.
So now we know that Ned realizes that a change to a machine creates a new machine based on the analogy of changing resistors in series to resistors in parallel. It’s great when a simple example can provide such clarity!
(and Ned, such a change has no relation to any actual “real world” inputs or outputs conditionyou superimposed – you missed that subtle point that the thing itself changing did not rely on those actual inputs/outputs, but was a mere configuration change and that was all)
You see? It is not hard to realize that “configured to” is a physical limitation all on its own.
Of course, when Ned saw where that path lead to, the dust-kicking started. But those who love to be direct and upfront, but also recognize that “politics” and agendas are very real and that what is objectively logical does not always carry the day can see that at least baby steps were taken over the last couple of threads to garner admissions of logical objective views which shine a bright light on the “policy” machinations that lead to such 50 year old articles as Prof. Crouch initiated this thread with. Admissions of functionally related, configure is structure and new configure is new machine would go a long way of clearing out the cannards of the anti-software agenda.
And quite lliterally, the court said the opposite of what you say – there was no quite literally reading on the claim (as a whole) – in fact, the court says that the expert testimony made it abundantly clear that the claim 19 could not read on the prior art.
Ned – incorrect there too:
“said programmable filter being programmed to”
Again – you do know that “programmed to” is a structural limitation, right?
Hint: Even MM said so in his discussion with David Stein and I above on Oct 12, 2012 at 02:04 PM: “Ordinary components plus configurations = structure”
101 Integration Expert said: “Mr. Heller:
Isn’t that what you are doing now?
You are the one guilty of doing everything you have accused me and others of doing.
I on the other hand focus on the law and challenge you and everyone else for proper pin-cites when making statements on what the law is.
In turn you call me juvenile names.
Furthermore I requested that you perform Integration Analysis on Ultramercial’s claims according to the Official Office Guidelines on Integration, something that would have lead to a substantive discussion on the law’s most on point case for 101, and what did you do?
I will tell you what you did.
You ducked, dodged and ran from the challenge!
It’s no wonder that your online reputation is that of being the most Intellectually Dishonest commenter on the blog.
So much for the new Patently O
anon said in reply to Ned Heller…
“Night, the people you list are all intellectually honest people who do nothing but discuss substance. ”
“Ned, that’s not even close to being true.
At all.”
101 Integration Expert said: Or in other words, Ned Heller is a liar.
anon said in reply to Ned Heller…
“Night, the people you list are all intellectually honest people who do nothing but discuss substance. ”
“Ned, that’s not even close to being true.
At all.”
Or in other words, Ned Heller is a liar.
“101, the problem with you is that you lecture people rather than trying discuss your views. Night has the identical problem.”
Mr. Heller:
Isn’t that what you are doing now?
You are the one guilty of doing everything you have accused me and others of doing.
I on the other hand focus on the law and challenge you and everyone else for proper pin-cites when making statements on what the law is.
In turn you call me juvenile names.
Furthermore I requested that you perform Integration Analysis on Ultramercial’s claims according to the Official Office Guidelines on Integration, something that would have lead to a substantive discussion on the law’s most on point case for 101, and what did you do?
I will tell you what you did.
You ducked, dodged and ran from the challenge!
It’s no wonder that your online reputation is that of being the most Intellectually Dishonest commenter on the blog.
So much for the new Patently O
anon, I don't know about claim 14. I am talking about claim 19 that literally reads on the prior art.
Ned,
The claim 14 has “programmed to equalize and reduce the effect of said acoustic feedback both in amplitude and phase on a signal in said transmission channel.”
You do know that “programmed to” is a structural limitation, right?
Hint: Even MM said so in his discussion with David Stein and I above on Oct 12, 2012 at 02:04 PM: “Ordinary components plus configurations = structure”
Not you missed the point here – every structural element and still did not anticipate.
Do you know why?
Hint: not all elements have to be structural.
I haven’t checked yet, but how is that answer coming from my five resistors question (you know, a substantive – yet easy – question)?
Ned,
Licensing is “not right?”
Seriously? Doesn’t the firm you associate with license?
And do you not want to talk substantively about my post at 2:26 PM?
You kind of dodged the issues I presented.
“Night, the people you list are all intellectually honest people who do nothing but discuss substance. ”
Ned, that’s not even close to being true.
At all.
101, the problem with you is that you lecture people rather than trying discuss your views. Night has the identical problem.
“indeed. But…”
Funny way of saying that once again you are right anon.
Graciously, thank you.
Ned Heller siad : “If I were you, I would stop the ad hominems and discuss substance.”
Let’s look at your own recent record:
Ned Heller said in reply to 101 Integration Expert…
What a jerk you are 101.
Reply
Oct 12, 2012 at 04:14 PM
_______________
Ned Heller said 101 is a jerk.
Reply
Oct 12, 2012 at 07:07 PM
___________
Soooo stop ad hominems?
Discuss substance?
Really Mr. Heller?????
“Sure, liquids can have structure – layers, gradients, etc. This one doesn’t.”
Lol wut?
give me a poke
I’m giving you a poke because, unlike you, it doesn’t surprise me at all that “research and development” costs at Apple are lower than IP-related costs. You think that Apple has to pay for clinical trials before it releases a new operating system or what?
the fact that an opinion is had, is hardly a verification of the extant facts of the situation
Indeed. But the fact of the opinion is itself quite interesting. Is there another field where participants from top to bottom agree that patents are more harmful than helpful? I can think of one and the Supreme Court in Prometheus very reasonably took a huge chunk out of the hide of that field.
More to come. I’m loving it!
Anon, IBM is not the only one that aggressively pursues licensing of company patents for money. It may not even have been the first start to practice, that might have been AT&T. And there are reasons for doing so that have to do with antitrust settlements imposed upon these companies. But it is not right, and I think we should say so.
Dennis,
I would like to ask a simple question, which ought to have a simple answer — What is a software patent, i.e., how do you know one when you see one?
Is that status determined by the specification, by the claims, or by the allegedly infringing system or process? Is there case law on this specific point?
PS – I note that the Shield Act defines a software patent (in Sec 285A(b)(3)) as, “any process that COULD BE implemented in a computer, regardless of whether a computer is mentioned in the patent,” and thus covers both software and hardware (e.g., random logic, programmed logic array, and even a purely mechanical system!) Seems to me that defining a species so as to includes the genus should violate some fundamental rule of semantics.
Ron
anon, they admitted the prior art had all the circuit elments arranged in the same way. The difference was in the way on circuit element was calibrated, but that was not in the claim.
Night, the people you list are all intellectually honest people who do nothing but discuss substance.
If I were you, I would stop the ad hominems and discuss substance.
Great post and the comments were very enlightening to me as a tax attorney who has very little insight into these issues. Thanks.
6 Said: “So was there some point to your pointing out the blatantly obvious about that case? Or were you just posting to display your mastery of the obvious?”
What I took away from David’s post, and more importantly from the Diehr case itself, is that 101 is broad and inclusive.
Diehr was not about what was “unpatentable”.
Diehr was about what is patentable.
Diehr is not just the Court case most on point for patent eligible subject matter, as Prometheus told you.
Diehr is the ONLY Court case for what is patent eligible subject matter in the digital age.
Diehr teaches in clear and precise examples, that an algorithm that is “integrated” is patent eligible subject matter.
Integrated in a digital computer. YES!
Integrated in a digital computer integrated in a process. YES!
Integrated in a digital computer integrated in a process for curing rubber. YES!
Each level of “Integration” stripping away another layer of abstraction, as “Anon” astutely points out.
Just as important for you 6, is to understand what Diehr did not so hold.
Diehr never held a transformation was required, especially one from the 1800’s arts, although one was used in that case.
Diehr never held a computer was required, although one was used in that case.
Diehr never held any machine(s) at all were required, although at least one was used in that case.
This is why the MoT as the sole and exclusive test was struck down in Bilksi and Diehr was reaffirmed as controlling case law.
Diehr never held any specific level of “integration” (sufficient) need take place at all. ( Nor did Prometheus, the last Supreme Court case to rely on Diehrs “Integration”.)
Diehr only taught and upheld “Integration” into a process, AKA, used in conjunction, ordered combination, claims as a whole offering more than the individual elements, steps, or parts.
What this means for you 6, and other examiners is that you need to stop jerking off and trying to ignore and reject claims simply because an algorithm and/or a computer is present, or try to reject an invention because one or more steps are not patentable standing alone.
Take the claims as a whole and perform “Integration Analysis” regardless of the subject matter.
And acknowledge that even if a Court created Judicial Exception ( derived implicitly from the Congressional Statute of 101) is present, it will not render the claim non statutory as long as that exception is “integrated” into the process as a whole.
Indeed “Integration” transforms the Judicial Exception itself into an inventive application, and renders the claims as a whole, patent eligible subject matter.
Excellent point NWPA. And as usual, it will be ignored.
Ned,
Your insistence on attacking IBM is quizzical, given that you have not answered my request to you to address the basis of your attacks.
Our posts on this forum are supposed to be not associated with our professional careers. Are you still associated with Alliacense Limited, and aren’t they a competitor of IBM’s? Wouldn’t “software” patents adversely affect your clients ability to obtain “non-hardware” patent protection?
I do not know the answers to these questions, or if the answers may be deemed problematic for you. I think they are fair questions given the positions you have taken on a number of topics.
Don’t get me wrong, being prepared for both business and legal tactics is admirable, but I do wonder whether if all of your expressed opinions are strictly from your individual capacity. If it were me, I would think that even the perception of doubt in this area might me you to withhold opinions (or at least those opinions which I then choose not to substantiate with answers to questions posed to me).
There are plenty of topics we have discussed, but I do note that it is specific topics that seem to more often than others create the “running-away-and-later-retreading” situation from you.
Keep LOL’ing MM as your self-defeat is objectively clear.
You should be more careful whose anti-patent story you tie yourself to.
For more:
link to patentbaristas.com
link to ipwatchdog.com
As to Tim Cook, the adage of the best lies having a kernel of truth comes to mind. Sure, a CEO may have an opinion, but the fact that an opinion is had, is hardly a verification of the extant facts of the situation, now is it? Of course, you know this and of course, all your post is is dust-kicking.
“But anon knows better!”
Yes. Another kernel of truth.
Thank you.
“by referencing unclaimed subject matter described in the specification. But, that is essentially”
Not sure that I can agree with the starting characterization Ned.
The item that distinguishes was in the claim. I do not think that there was any importation of an element into the claim from the specification.
“While claim terms are understood in light of
the specification, a claim construction must not import limitations from the specification into the claims.” was followed.
I think that you need to read the following quote from the decision a little more carefully:
“This court interprets Mr. Matzen’s statement as an admission that Graupe discloses every structural element in Claim 19, but not as an admission of anticipation. On cross and redirect, Mr. Matzen clarified that Graupe does not consider the effect of acoustic feedback on a signal in the transmission channel and therefore does not disclose a filter that is “programmed to effect substantial reduction of acoustic feedback.” ’850 Patent, col. 14, ll. 66–67 (emphasis added). Therefore, Mr. Matzen, in fact, testified that Graupe does not disclose an important claimed feature of the ’850 Patent.”
Is that the only foundation of your concern with this decision?
…or Judge Rich because Judge Rich took on Supreme Court dicta and applied the law that he knew better.
So, MM, take “r & d” out of my statment and use it in a different way to give me a poke when obviously the quesstion was what does “r & d” include within the numbers cited in the article.
When pressed, you almost always turn tail and run. You sort of spit at me on the way out, though.
Let’s have some balance. The context of Apple’s statements are after Apple has engaged in nuclear war over IP. They are being accused of trying to act as monopolist and unfairly using their patents. What better way to counter that then start making statements like they are now.
We certainly don’t want someone like a CEO of a large tech company to determine the fate of the patent system because their interests are very limited to the interests of the company.
> This is why you see MM go completely silent whenever I cite the actual law on Integration Analysis and/or perform the analysis for real claims and cases.
Yes, it’s amusing to see such dodging and running for cover in the face of actual claims.
Fine by me. I will just keep those in my back pocket, ready for the next dissertation on the sanctity of “physical structure” that differentiates patentable claims in other fields from those in software.
what does “research and development” include?
I thought you were the expert, NWPA.
LOL. You guys crack me up.
The New York Times article has been ravaged as horribly incorrect as to its facts
Tell Tim Cook, CEO of APplie.
He appears to believe that incentives are skewed in the tech industry. But anon knows better!
Tell us all about it, anon.
LOL.
Your highness king 6, you are wearing no clothes in your reply.
You were asked to explain a difference, not point to a dictionary.
A word of advice for any future efforts of yours on the LSAT: you are the one to provide the explanation. That is the grunt work expected from you.
MM: “Yes, claims that are eligible are “integrated” (whatever that means) ”
101 Integration Expert: It means, when the claims are viewed as a whole and/or as an ordered combination and offer more than the parts do separately. (See Prometheus, Official Office Guidelines, and the MPEP )explaining “Integration” of claims as a whole.
MM: “and likewise “integrated” claims (whatever those are) are eligible.
101 Integration Expert: Try Diehrs claims. The gold standard for what is patent eligible subject matter, or as Prometheus said, “the case most on point!
MM: And thanks to 101 IE for highlighting that key term (“effectively”) once again.
101 Integration Expert:You are welcome MM. I am glad to read the dictionary to you anytime you need me too.
MM: “Would adding reference to a “computer” turn the methohd into an eligible method?”
Adding a computer or any machine is not required for making a method/process patent eligible. See ( Diehr, Bilski)
Furthermore, only if the process starts out with a bare stand alone judicial exception ( JE), ( what the CAFC calls manifestly evident) will it require further analysis. And that analysis is “Integration Analysis”. See ( Prometheus)
Once the JE, is integrated into the process as a whole, the process transforms into an inventive “application” of the judicial exception.
You do not get to ignore ANY mental step(s), element(s), or parts. Diehr did not do this and Prometheus NEVER held such.
And that’s the law MM.
I will continue to beat you over the head with it, citations and all, each and every time you try and twist and misconstrue that law!
Let me know when you are ready for your next legal bashing!
Regards,
101 Integration Expert!
From strawman to insults, but still no analysis of my actual comment.
Well, that would require “Integration Analysis” and MM is terrified of that analysis. He knows the well established law on Integration Analysis destroys his theory and supposition for dissecting ( ignoring mental steps).
This is why you see MM go completely silent whenever I cite the actual law on Integration Analysis and/or perform the analysis for real claims and cases.
He can’t dispute it.
He can’t refute it.
All he can do is build strawmen and and hurl insults, while living in a delusional world of denial about what just happened 9-0 in Prometheus, followed by the USPTO Guidelines and the MPEP on “Integration Analysis”
What does “intellectual property” include? And, what does “research and development” include? On its face that statistic seems disturbing, but it doesn’t seem right and my guess it is at best misleading.
Did they include the purchase price of Motorolla? The purchase price of large numbers of patents? Licensing? I’d like to see that itemized.
“6, can you explain the difference between “programming” and “setting up for operation in a particular way?””
More grunt work, all the time. People requesting more grunt work to make up for their own lack of doing grunt work. I’m going to start charging you for this nonsense brosensky.
Take your pick, verb:
link to dictionary.cambridge.org
Or noun:
link to dictionary.reference.com
The “difference” you seek is the “difference” between which ever way you wanted to use the word “programming” in your sentence and the definition you posted.
“OK, so for the record: 6 feels that the EE art units should be applying the same 101 principles as the software art units.”
OF COURSE. Did “the record” ever say differently? It doesn’t matter if you say a GP computer, a processor, a IC or an array of transistors/capacitors/fuses. If the claim is drafted such that it covers a codec etc then your sht needs to be taken out like the gar bage that it is. I’ve personally ki lled no fewer than two patent apps more legitimately related to “the useful arts” than software or codecs (other software) are under the same 101 law as is being applied to software.
“Care to qualify that statement, 6?”
No qualification needed. The EE arts, just like the Mech E, Chem E and Bio arts etc, have thousands upon thousands of perfectly eligible claims to occupy us without software nonsense dribbling through. Also, just fyi, yes, “functional language” is overused in some situations unrelated to software in the EE arts as well. Specifically where there is no well known structure or class of structures that underlies the performance of the function. 112 problems of this sort do persist in all arts.
> They are disgusting examples and they will be better addressed after these pending cases are resolved, hopefully by the supremes.
OK, so for the record: 6 feels that the EE art units should be applying the same 101 principles as the software art units.
Care to qualify that statement, 6?
Anyone else want to sign onto that position as well?
The New York Times article has been ravaged as horribly incorrect as to its facts, its handle on the law and the treatment of how patent policy even works in the first place.
I am not surprised at all to see MM self-defeat yet again by putting his imprimatur on that article.
Three strikes in one pitch.
link to business.time.com
Last spring, Apple CEO Tim Cook declared that he’s “alwAys h–ted litigation, and I continue to h–te it,” but said that it’s his job to protect Apple’s inventions. For his part, Schmidt told the New York audience that, “These patent wars are deth,” and described the patent arms race as “bad for innovation. It eliminates choices.”
That view was backed up in the latest installment of The New York Times iEconomy series, which appeared earlier this week. “The marketplace for new ideas has been corrupted by software patents used as destructive weapons,” the story’s authors wrote, noting that last year, for the first time, Apple and Google spent more on patent litigation and intellectual property than on research and development, a striking fact that sharply illustrates how incentives have become skewed in the tech industry.
Patent trxlls (or wannabes “inventing” “new” concepts in their “garage”) are the biggest proponents of software patents, by far. The people who work at these companies know that the gaxrbxge computer-implemented patents being granted don’t promote progress at all.
“disgust over people that want to ignore objective evidence and evade the issues to push through an agenda..”
..”completely ignored my post on modern interface development.”
..disgusted with people that refuse to argue in an intellectually fair manner.”
You summed it up perfectly NWPA. This is what the Patently O has come to primarily due to three commenters, Ned Heller, MM, and 6.
This trio, whom I suspect collectively make up the majority of post, are allowed to run roughshod over the forum with lies, rudeness, and willful misrepresentation of the existing law
That the “Intellectual Dishonesty” of this vocal minority is allowed to permeate and tarnish the brand of Patently O, is quite perplexing.
Anyway, I appreciate your post and your expertise, as well as the contribution of other commenters like Anon, and David Stein, and others whom I may not always agree with but can always count on to be honest, intelligent, and learn from.
A Zoo Keeper once told me that Baboons are loudest and most foul when they feel the most threaten. I have no doubt there are those here threatened by the superior knowledge you bring to the forum and the fact that the existing law cannot help them advance their agenda’s to stop software , business method/process patents from issuing every Tuesday.
Anyway keep up the great work Night, and don’t back down or get soft. We need every voice in this forum posting facts, and citing the law to keep it from becoming a rubber stamp of those that clearly are in favor of pushing personal politics rather than promoting the progress of the useful arts.
NWPA,
I understand your frustration. Content is the true issue. There are far too many posts that avoid valid points made in conversations, far too many strawmen, non-sequiturs, smoke screens, red herrings and out and out insults and lies. Far too many run-away-and-resurface-laters trying to pass off the same retreads.
But Prof. Crouch has asked that we try to improve the site.
Some like Reinier, seem earnest albeit mistaken. For such we can be stern, but easy on the ad honinym.
Some like Ned, seem – at times – to be at the cusp of actually understanding reality and law as it is. Stronger chiding to bring the picture back in focus may be called for.
Others have shown nothing but contempt for others and for Prof. Crouch’s call to make this a better site. I get that having an opposite viewpoint can stir conversation, but I seriously wonder why certain people should be allowed to post in what can only be generously called unacceptable manners.
Such as it is, this is the most active forum for patent law discussion. Prof. Crouch is correct – we should try to make it a better place.
> By which he means “program” not “configure”. If you were really reconfiguring anything then it may well be. Nothing need be reconfigured in your exemplary patent. It can simply be programmed.
con·fig·ure
Definition of CONFIGURE: to set up for operation especially in a particular way.
(source: link to merriam-webster.com )
6, can you explain the difference between “programming” and “setting up for operation in a particular way?”
> You can always draft a claim that fails 112 but then complies with 101. You’re going to need both before you can cite us a good example.
6, this one is really simple. All of these examples have claims like this:
An integrated circuit (A), comprising:
a (B) component configured to (X);
a (C) component configured to (Y); and
a (D) component configured to (Z).
The 101 question is whether the recitation of an (A) comprising components (B), (C), and (D), specifying particular functionality but no physical structure, is allowable.
The 112 question is whether (X), (Y), and (Z) are adequately described.
The 102/103 question is whether this whole combination is novel and non-obvious.
I JUST HOPE THAT BOTH SIDES OF THIS FRAUD ARE LOOKED AT. DID THEY WANT TO TAKE DOWN THE COUNTRY? OR DID THEY JUST WANT TO STEAL WHAT THEY THOUGHT WAS WORTH STEALING. I HEARD SOMEONE SAY THAT MILLIONS OF PATENTS MAKE NOTHING.. HOW COME ALL MY IDEAS AND PATENTS HAVE BEEN STOLEN?
Ned, not self praise, but disgust over people that want to ignore objective evidence and evade the issues to push through an agenda. It may be right that the world would be better without patents, I can entertain that notion. And I am even willing to discuss it. But, what bothers me is people that refuse to discuss this in a rational format.
You completely ignored my post on modern interface development. The fact is that there many research labs that do interface development for corporations because of patents. That is a fact. I have first hand knowledge of this.
And, I am disgusted with people that refuse to argue in an intellectually fair manner. You, MM, IAEANAEEEE, and several others seem to think it is funny to evade the issues and ignore the substance of arguments. So, given that your behavior is about at a grade school level, you should expect me to respond in kind with name calling, baiting, and spitballs.
I do try to not resort to name calling, but sometimes the outrageousness of these posts gets to me.
***Do any of you really think that corporations are going to spend the same on R&D without patents?
Actually 6 – no, you do not need an example for both if you are talking about 101.
Pay attention.
6, and you say MM and Ned don’t know which end is up?
Program IS reconfigure.
In fact.
In law.
“They’re putting less into R/D than they are into their patent dept if memory serves”
6 – do you know what ROI is?
I like your legal articles, especially ones regarding patent law, copyright etc. Patent law issues are very complicated, but you make them absolutely clear. If you are a practicing patent attorney, please submit you contacts to my attorney directory. I invite there only best lawyers and make detailed descriptions about their services and practice areas. For example, look at the category with NY patent attorneys link to attorney-online.info I wish more people to be listed there to provide a good choice for people who need high quality legal services.
“Right now billions and billions of dollars are being poured into development of interfaces in the hopes of getting a big prize of a patent on a great interface that people want. Without patents all of that will evaporate.”
Right, all those billions will suddenly not be put forth in developing interfaces that people want because there will be absolutely no market for them. Sarcastically at least.
“Go, and investigate how many resources Microsoft is putting into interface development.”
They’re putting less into R/D than they are into their patent dept if memory serves. Or was that Apple?
“To reinforce this point, here are some more IC claims that provide no physical structure, and that claim off-the-shelf components with novel functionality:”
Don’t waste your time, MM and Ned don’t even know what they’re looking at and I can’t be bothered to look at all of them. They are disgusting examples and they will be better addressed after these pending cases are resolved, hopefully by the supremes.
“The question is whether configuring an off-the-shelf component with novel functionality, irrespective of physical structure, is sufficient for 101.”
By which he means “program” not “configure”. If you were really reconfiguring anything then it may well be. Nothing need be reconfigured in your exemplary patent. It can simply be programmed.
“But we’re not talking about 112.”
You can always draft a claim that fails 112 but then complies with 101. You’re going to need both before you can cite us a good example.
“These seem to be physical”
Not necessarily.
“There will never be a 101 rejection.”
That depends, in all cases, not just a certain hypothetical one that doesn’t exist, on whom the examiner is. There actually is some physical structure recited in a hypothetical claim, the pad though that likely will not save it as it is no different than reciting a gp computer.
Just to be clear MM, in a hypothetical context that doesn’t exist “integrated circuit” may as well read “a processor”. The “modules” are not necessarily even physically distinct parts. They could be, but they aren’t necessarily. And the “pads” are just the same as any other pads with an attached intended use limitation.
Also note that the ta rd that drafted this hypothetical pos that doesn’t exist lacks antecedent basis:
“operatively coupled to the controller module”
“the controller module” hasn’t even been introduced yet.
I could go on with shizzle. Hypothetical claims which don’t exist are rather easy to invalidate because of the office’s bad work 🙁
Bottom line though MM, all they did was claim a codec (aka some software) in conjunction with a control interface (aka a touchscreen control/touchscreen) and a pad (aka the means by which all? processors talk to the outside world). In other words, they claim a codec (some software or some hardware) on a mobile phone.
> Invalid under 112.
But we’re not talking about 112. Whether or not the stated functionality is sufficiently clear for the purpose of 112 – and I will grant you, it may not be – is immaterial.
The question is whether configuring an off-the-shelf component with novel functionality, irrespective of physical structure, is sufficient for 101.
I believe that it is. I believe that thousands of patents across every field – chemical, mechanical, and electrical – evidence that validity. And I believe that, given enough examples, even Malcolm can be forced to concede that point.
Finally, I believe that the exact same principle applies in the field of software: that a software invention, implemented as instructions executing off-the-shelf components with no novel *physical* structure but novel *functionality* provided by those instructions, is patent-eligible under 101.
===
To reinforce this point, here are some more IC claims that provide no physical structure, and that claim off-the-shelf components with novel functionality:
1. A power amplifier controller circuit for controlling a power amplifier, the power amplifier coupled to receive and amplify an input signal to generate an output signal, the power amplifier controller circuit comprising:
an amplitude control loop to determine an amplitude correction signal indicative of an amplitude difference between an amplitude of the input signal and an attenuated amplitude of the output signal;
a variable gain amplifier to adjust the amplitude of the input signal based upon the amplitude correction signal;
a control block to generate a supply control signal by combining at least a portion of the amplitude correction signal and at least a portion of a signal indicative of the level of gain in the variable gain amplifier; and a power supply to adjust a supply voltage or bias to the power amplifier responsive to the supply control signal.
1. An I/O compression test circuit for compression testing data loaded on a plurality of global I/O lines, comprising:
a plurality of test blocks for testing a plurality of global I/O line groups depending on a test block enable signal synchronously with a first strobe signal, wherein the plurality of global I/O lines are divided into the plurality of global I/O line groups;
a decision block for deciding a test result in response to output signals from the plurality of test blocks;
a driving block for driving a decision signal outputted from the decision block synchronously with a second strobe signal; and
a control block for generating the first strobe signal, a reset signal, and the second strobe signal depending on a compression test enable signal and a global I/O line strobe signal, wherein the reset signal initializes an input terminal of the decision block, wherein the global I/O line strobe signal is activated when data are loaded on the global I/O lines.
1. A compression test circuit of a memory device, comprising:
a plurality of banks each comprising a plurality of bit line sense amplifiers for sensing and amplifying data in bit lines;
a plurality of input/output amplifiers to amplify data which is amplified by the bit line sense amplifier and is loaded in input/output lines;
a plurality of compression comparators for compressing and comparing data amplified by the plurality of input/output amplifiers in each bank;
a plurality of global input/output drivers for driving each data amplified by the plurality of input/output amplifiers or for driving each of a plurality of comparison signals outputted from the plurality of compression comparators;
a plurality of output drivers for driving data driven by the global input/output driving unit to an external pin; and
an input/output amplification control unit for generating a plurality of first control signals to activate the plurality of input/output amplifiers in each bank at different timings in a test mode.
…etc. This took three minutes of searching. I can find dozens more – including in every other field.
From strawman to insults, but still no analysis of my actual comment.
Too tired of self-defeating when you stray to items of substance MM?
It reminds me of people calling Ron Katznelson and Dave Boundy names because they took on the illegal activities of the Patent Office.
Sure. I have no problem with applying the law as it is to root out abuse. But you haven’t re read my post nor commented on the fact that the behavior you first deplored is exactly the type of behavior the law aims to achieve. You don’t seem to recognize the critical importance of forcing design around.
What you deem “burden” is a design feature of the patent system that should NOT be fixed.
Don’t like it? INVENT a way around it.
“EXCEPTION to the patent laws”
Cite the LAW.
Not to belabor the point, but you are full of BS.
Patent abuse or misuse is known in the law. We need the courts and the Feds to look at this a bit more.
Start with IBM.
“You calling 101 Integration Expert a jerk is neither accurate nor professional,”
Thanks Anon. Apparently if you challenge Mr. Heller to provide proper pin cites, he calls you names.
MM: “All methods do not include mental steps.”
That’s not what you said before. You said the opposite. ”
101 Integration Expert: Provide an exact quote and citation of what you think I said and we can look at it in context. Otherwise let’s get back to “Integration Analysis”.
MM: Did the claimed process in Diehr require a “human operator”?
101 Integration Expert: Yes. How else do you begin, moniter, and end a rubber curing process? I don’t recall the specification disclosing robots doing the work.
MM: The whole point was that it was automated, was it not? Where is the mental step in Diehr that must be carried out to infringe Diehr? Opening the device? Or turning it on?
101 Integration Expert: I believe ALL the steps must be performed in Diehr’s claims to infringe. But that is a different question/topic from “Integration Analysis”. Any step performed by a human being requires mental processes. This was proven In the late 80’s early 90’s by Neuroscientist using Positron Emission Tomography ( P.E.T.) on healthy subjects playing a video game called Tetris. This research under the titled Brain Efficiency was required reading in my Neuro Science graduate course. Please forgive me for not having all the details at hand as it was decades ago while I worked on my PhD. But make no mistake BE was pioneering research at the time and to this day it remains a fact that all human activity/behavior requires mental processes that can be measured and objectively proven with brain imaging technology. As far as Diehr, I believe the whole point was an improved ( more efficient) way to cure rubber. And yes the automation of the old and conventional steps traditionally performed by human beings was greatly beneficial and attributed to the claims being an inventive application of the formula integrated in the process as a whole. See [ Diehr & Prometheus for authority. ]
MM: Recall how this conversation began: you refused to acknowledge that claims in the form [oldstep]+[newthought] are ineligible per se after Prometheus.
101 Integration Expert: Yes, and I challenged you to quote the exact passage in Prometheus of that holding, with a proper pin cite and you failed to do. And apparently still can’t do it. And I also recall how this conversation ended, with you having to face the fact that the Prometheus Court upheld Diehr’s claims as a whole approach, relied on Diehr’s Integration Analysis , and called Diehr the case most on point for what is patent eligible subject matter, 9-0. Followed by the USPTO adopting “Integration Analysis” in it’s official guidelines while totally ignoring your mental steps test/dissection theories.
As you note, David, the claim has components sitting there with not obvious functional relationship to other components.
The output module, for example, has no obvious function.
Invalid under 112.
The claim is directed to an integrated circuit, but also defines separate mute switch of an audio output.
Huh?
We have a mute signal and a mute switch. These seem to be physical, the one being a output from the IC to the switch.
We have as an input, a rules enable signal.
We have status conditions. What they are responsive to is not stated. What they are is uncertain.
We have sets of disconnect rules. What they are is unstated. But a first rule is defined: if the first condition is met, turn mute on; if not, turn it off.
We have a mechanism responsive to the rules enable signal to enable one set of set of rules.
I would think this claim is so ambiguous as to be invalid. What is being claimed is as clear as mud.
“a computer was useful”
Are you saying that it is not?
“a programmed computer was a new machine”
So it is, in fact and in law.
“Just how do the so-called exceptions apply in such a case?”
Just like in any case.
Ned, do you have a point to make?