By Dennis Crouch
CLS Bank v. Alice Corp (Fed. Cir. 2013)
On February 8, 2013, the Federal Circuit held oral arguments en banc in this important subject matter eligibility dispute that focuses on the extent that software can be patented. Under Federal Circuit rules, en banc rehearings include all of the regular circuit court judges as well as any other judge who sat on the original panel. For this case, the nine regular members of the court were joined by Senior Judge Richard Linn who sat on the original panel and penned the opinion of the court that has offended so many anti-software-patent advocates. In the opinion, Judge Linn cabined-in the definition of “abstract” with regard to computer implemented inventions and also indicated that §101 should only be used to invalidate a claim when that result is “manifestly evident.” [UPDATED] With a ten-member panel the accused infringer (CLS Bank) needs six votes to overturn the original panel decision. With a ten member panel, six votes are needed to win. Since the original appellate decision was vacated, this appeal comes directly from the district court. As such, a five-five tie will affirm the lower court holding of invalidity. While I suspect that Linn’s language putting Section 101 on the back burner will not survive, I suspect that at least some claims will be seen to pass muster under Section 101.
The parties are in relative agreement on many points. None of the parties seriously argue that software per se is patentable – apparently assuming that software apart from its computer implementation always embodies an abstract idea. All of the parties also agreed that a computer specially designed to perform a particular function can also be patentable. The dispute centers on what test should be used to determine when you have such a “specialized computer” and on whether Alice Corp’s claimed invention meets that standard.
Most notably absent from the oral arguments was any discussion of the meaning of an “abstract idea.” Of course it is the ambiguity in the definition of abstract idea that is causing most of the confusion regarding subject matter eligibility.
For decades, patent attorneys have known that software can be patentable if properly claimed in a way that directs attention away from the software nature of the invention. I suspect that the rule-of-thumb for patent eligibility will focus on complexity of the relationship between software and hardware. And, if that is the case patent attorneys will renew their reputation for taking simple ideas and making them appear quite complex.
Mark Perry represented the accused infringer (CLS Bank) and argued that one starting point for subject matter eligibility is the notion that a process accomplished “entirely in the human mind or made with pen and paper” cannot be patent eligible. Further, merely speeding-up that process by using a computer does not somehow transform the process into a patentable invention – “it simply accelerates the process.” The bulk of the questioning focused whether CLS had overgeneralized the claims. For instance, when Mr. Perry began reading from the patent’s invention summary he was stopped by Judge Linn who responded that every claim can be distilled to an abstract summary but “that’s not the way that we assess patent eligibility or patentability.”
Judge Moore focused the questioning on the CLS Bank claim that included the most physical structure. Claim 26 of the ‘375 patent reads as follows:
26. A data processing system to enable the exchange of an obligation between parties, the system comprising:
a communications controller,
a first party device, coupled to said communications controller,
a data storage unit having stored therein
(a) information about a first account for a first party, independent from a second account maintained by a first exchange institution, and
(b) information about a third account for a second party, independent from a fourth account maintained by a second exchange institution; and
a computer, coupled to said data storage unit and said communications controller, that is configured to
(a) receive a transaction from said first party device via said communications controller;
(b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively; and
(c) generate an instruction to said first exchange institution and/or said second exchange institution to adjust said second account and/or said fourth account in accordance with the adjustment of said first account and/or said third account, wherein said instruction being an irrevocable, time invariant obligation placed on said first exchange institution and/or said second exchange institution.
Judge Moore rightly suggested that a computer by itself is clearly a machine and subject-matter eligible. She queried then, how can a more particular invention – the computer with particular functionality – be ineligible? Perry offered two responses. First, he argued that the claim here is really method claim masquerading as a machine claim – that method itself is an abstract idea and the addition of the computer hardware does not make the claims eligible. Further, Perry argued that the claims here are not directed to any particular computer but instead a generic system. Judges Moore and Newman then queried whether the real focus should be on obviousness. Perry admitted that the claims may also be invalid under Section 103, but that the Supreme Court has indicated that Section 101 is a threshold inquiry. In addition, he argued, Section 101 inquiries are often easy because they do not require substantial discovery.
Perry also suggested that the requirement for extensive particular hardware rightly favors companies like CLS Bank and Google who spend millions of dollars to build systems that actually work rather than companies like Alice who merely develop a “McKinsey Report” and file for patent protection.
With Ray Chen on the sideline pending confirmation of his Federal Circuit judicial nomination, Deputy Solicitor Nathan Kelley stepped up and primarily sided with CLS Bank – arguing that software per se cannot be patent eligible because it is an abstract idea and that merely connecting software to a computer is likewise patent ineligible. The oddball test suggested by the PTO borrows the separability concept from copyright law. In copyright, a useful article is only copyrightable if the original expression is at least conceptually separable from the utility of the article. The PTO argues that an inseparability requirement should be put in place for computer implemented inventions. Under that construct, a computer implemented invention that applies an abstract idea would only be patent eligible if the computer is inseparably and inextricably linked to the invention. In oral arguments, Kelley suggested that the approach requires the “fact finder” to “go deeper” in considering whether an inextricable link exists. Mr. Kelly did agree (on questioning from Judge Moore) that the focus in this process should be on the language of the claims.
What the PTO wants out of this is a practical test that its examiners can follow rather than just the notion of an “abstract idea.” I believe that the agency would have been better served if he had focused on that point rather introducing a new concept into the law that does little or nothing to resolve ambiguity.
Adam Perlman argued for the patentee (Alice Corp) and likewise did not defend software patents. Rather, Perlman argued that his client’s patents were technology-focused inventions that wove together software and hardware in a way that “creates a new machine” that clearly satisfies the requirements of Section 101.
There was some back and forth about preemption. Neither party mentioned this, but a point relevant to preemption is likely CLS’s allegations at the district court level that it did not infringe the patents.
The Federal Circuit will likely take a few months to decide this appeal. An important issue will be to see whether the court decides this case quickly or waits for the Supreme Court to release its decision in Myriad. Although not computer implemented, the outcome of Myriad case could impact the law here.
“I am not using the term here in its legal sense.”
WHAT?
Why the F not?
The only reason I can think of is obfuscation.
MaxDrei, as Ned admits he is not using that term inthe legal sense, did you still think he “gets it?”
Don’t you mean mental-sub-steps per the new NED-IMHO law…?
No Ned – that is most decidedly not how dicta is definded.
C’mon – are you even trying?
Ned – that’s not the only point.
“could validly consist of only mental steps”
No – your logic is false. It has been explicitly put forth that a process ONLY of mental steps is not proper – and this CANNOT logically lead to your statement.
And indeed, that was not the very point in Mayo (How in the world are you forgetting the actual touchstone: INTEGRATION).
You are seemingly creating a new form of claim element that has NO basis in law.
None.
It is a complete fallacy.
anon, good for you. The brief explanation is Judge Rich and his theories about threshold, etc. (101 is first, therefor, it must be resolved first, etc.) He had the SC majority in Diehr convinced.
Having paused and considered, they are not so convinced.
anon, the point is that Mayo did not follow Diehr on this point, meaning that that portion of Diehr is simply dicta.
We still don’t know if the premise (while mistaken), is incorrect, now do we, MF?
You can expend all types of energy in foul-mouthed (but still rather effeminate) barbs, but you have such difficulty with my yes/no question.
I wonder why?
anon, I understand encryption. It can operate on data alone.
anon, if mental steps qualified as process steps, then a process could validly consist of only mental steps. Since this cannot be, it must follow that mental steps are not process steps at all, but must modify process steps.
Indeed that was the very point made by the government in Mayo.
And here’s a hint: it has nothing to do with whether 101 is a threshold issue or not.
Please don’t kick up dust.
Ned,
I have more than recognized that Benson, Flook, Diehr, and Prometheus are internally consistent.
In fact, I have challenged your erstwhile circle mate MF repeatedly to explain these inconsistencies, but as you know he really doesn’t do answers, but only follows his rather narrow script.
Regardless, this inconsistency does not save you.
There is a key phrase (or two) in Prometheus that explains why. Take a shot at finding them.
Ned,
The fact that it is not followed in Prometheus does not in fact save you.
There are several key references in prometheus that explain why.
Do you want to take a shot at finding them?
Software loaded in a computer in executable memory is not abstract. I will grant you that much.
Until it is reduced to machine code, and loaded for execution, it remains abstract.
“and without any particular application.”
You do not understand the art of encryption, do you?
Encryption – itself – IS an application.
Try to keep up.
EG, if the software is part of the machine such that it becomes a new machine in the way it operates with the external world, then I will agree in principle that such is eligible.
The problem I see is that patent attorneys do not want to limit their claims to software that become part of the machine, like a bios or OS or I/O driver, or the like. They instead want to patent business software.
See the difference?
“They are not, however, process steps. You keep saying otherwise, but you are wrong.”
We’ve been through this and I am not wrong. Where do you derive this artificial sub-claim designation? Do you have any authority for this?
“process consist only of mental steps”
FULL STOP – Ned, I have told you at least half a dozen times that we are not discussing claims that can be ENTIRELY performed in the mind.
Your insistence on inserting such a clause in your replies is utterly intellectually dishonest, can serve NO vallid purpose, and is without redemption.
frank,
Are you aware the computer was invented before stored programs? The operators input two sets of numbers with swithes and an operation selection using another. The result could be carried forward.
The stored program was a later invention.
Remember your set theory, Ned.
Benson was not merely only “mathematical” in nature.
Watch your propensity to go from a single example to a whole category, like a claim in Prometheus, for example, to all medical method claims.
Heed well the direct words of the court: “Our previous decisions regarding the pa-tentability of “algorithms” are necessarily limited to the more narrow definition employed by the Court”
Got that?
anon, I still have yet to listen to the argument. Will do so on the way home today.
But they actually discussed 282? The text of that statute does not include 101 as grounds for invalidity. What did the PTO say about that?
Bob: Deener is a method for processing grain. The SCOTUS realized (rightly) back before the dark days of the Empire of Benson that a method for machines was proper as otherwise it would be too easy to design around and they accepted that methods were patent eligible. In Deener a person could have processed the grain according to the method—think real hard about that.
And, Bob, funny you say about different grains as that is what the SCOTUS said in Deener too. That one should be allowed to claim a method for (it was dicta) for all grains in the process.
The machines to process the grain were not new. The order and arrangement of the machines to process the grains were new for the method.
Please let us not have to go through Allapat and circuits, ROMS, software, and von Neumann.
So, you think designing a drill bit is nothing? Let me ask you something could a drill bit be designed without energy being used? Please explain this in detail how nothing can not be done without energy being used. (and space and time.)
Odd that what you presumably hold most dear —your ability to think and process information– you tell us is meaningly and that nothing is actually happening. Odd. That sort of thinking was typical in 1920 prior to Godel, Shannon, Turing, Church, von Neumann, etc.
Ah well, ……you go and do your homework and come back with some answers. And if you know what’s good for you, you won’t get help from the trolls.
Information takes energy, time, and space to represent and transform. It has physicality. The transformation is changing a fundamental physical property.
An information processing machine—be afraid be very afraid—oh wait, apparently you are too afraid to think about this rationally.
That’s still not an answer.
Do you need some help with a yes/no answer? Phone a friend, perhaps?
Guest, “Abstract” is shorthand for
“principle in the abstract.”
They are described thoroughly in Le Roy v. Tatham and O’Reilly v. Morse.
They are principles without specific application to useful ends — akin to unapplied laws of nature and natural phenomena.
That’s not an answer.
Is a yes/no answer so difficult for you?
101 Integration Expert: Bilski was a mathematical formula
MM: LOL! Nice revisionsism there. Bilski claimed a “process” by any definition of the term “process”.
101 Integration Expert: There is no revisionism. I am merely stating what the Court found when looking at the claims.
See: “The key claims are claims 1 and 4. Claim 1 describes a series of steps in- structing how to hedge risk. Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula.” (Bilski v Kappos)
MM: Bilski claimed the process of applying math in a particular business context (as I recall, claim 1 does not recite any “formula”).
101 Integration Expert: Math is an applied process even in the form of a word problem/formula or algorithm and otherwise statutory except for the Court created rule that disembodied math is not patent eligible subject matter.
See “The concept of hedging, described in claim 1 and reduced to a mathemati- cal formula in claim 4, is an unpatentable abstract idea, just like the algorithms at issue in Benson and Flook. Allowing petitioners to patent risk hedging would pre- empt use of this approach in all fields, and would effec- tively grant a monopoly over an abstract idea.” (Bilski v Kappos)
MM: “we could of course go back in the archives see what you said about Bilski’s claims prior to the decision. I’m certain you never referred to them as claiming a “mathematial formula”.
101 Integration Expert: We are discussing what the Supreme Court found when looking into the claims, not what anyone predicted before the Court decided the case.
Any questions?
I am here to help.
BTW, anytime you muster up the intellectual courage to apply the Courts “Integration” to Ultramercials, or ANY real claims just let me know. You can even use Alice’s claims since we now have heard the oral arguments.
101, have you notice that circuits operate on electrical signals and transform them from one state to another.
Diehr was explicit that a mathematical algorithm used to modify an historical process is eligible. Historical processes were MOT processes, as the court noted.
So, what do we have then, a circuit that operates on signals is eligible even if the modification of the signal is conducted digitally.
Unremarkable.
MD,
Which is patentable; and if not, why not?
1. Process comprising the BCD algrorithm described in the Benson case.
2. Process comprising the BCD algrorithm described in the Benson case using a computer.
Encryption is valuable. But if it is claimed only as numbers in an numbers out, it fails eligibilty just like Benson and just like Morse. You are claiming the principle in the abstract and without any particular application.
Now, the debate on whether mathematical inventions should be allowed to be claimed without limitation to specific examples is a topic that Congress needs to take up. Benson has not been overruled.
Anon, mental steps do not make a proces claim invalid. They are not, however, process steps. You keep saying otherwise, but you are wrong.
A mental step that is integrated with a process step modifies that process step and may well be patent eligible.
But a process consist only of mental steps, or only of old process steps to which non integrated mental steps are added, is not eligible.
Agreed. The algorithms under discussion in Benson were "mathematical" in nature — wholly mental. They comprise a series of mental steps that might be carried out as well with pen and paper, or with the aid of computers.
I am not using the term here in its legal sense.
There still is a requirment that the invention be useful and non abstract. What this means is one of the questions the Feds need to answer clearly.
anon, perhaps you might recognize that Flook, Diehr, and Prometheus are internally inconsistent in their dicta? The Supreme Court has been wrestling with whether 101 is a threshold issue or not.
IANAE, I beg to differ, but only moderately. Mental steps are just a bit different than machine processes. However, a machine process that only converts numbers from one state to another do nothing that is patent eligible.
But this seems to be the exact question the Feds are now trying to decide. Can a machine process that only converts numbers be patent eligible as a process?
If they answer, yes. Then the next question is just how they got the authority to overrule Benson.
look at who is taking that t u rd in the punchbowl.
Wrong and not even close, you sad lying a–hole. I’m just responding in a perfectly appropriate way to your bizarre and f—cked up three day non-stop inquisition regarding my alleged “legal academic” connections that was based on your inability to read. That’s just the latest installment in the continuing saga of “Anon: The Douchebaggiest Patent Blog Troll in the History of Time.”
If you stopped engaging in your bi-hourly ritualistic attacks on me that occur regardless of what I write or whether I write anything at all I might feel better about not shining the occasional light on your looneytunes spewtrail. But you’ll just smear someone else with your made-up horses–t and they’ll have to call you out.
Maybe you just need shinier armor, anon. Yeah, that’s it. Some real shiny battle armor! That’ll show all the “anti-patent” folks who’s boss. Of course, you may need to put your tiny plastic referee whistle somewhere less conspicuous.
This part. It is not followed in Prometheus.
The "novelty" of any element or steps in a process, or even of the 189*189 process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.[12]
[12] t is argued that the procedure of dissecting a claim into old and new elements is mandated by our decision in Flook which noted that a mathematical algorithm must be assumed to be within the "prior art." It is from this language that the petitioner premises his argument that if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter. The fallacy in this argument is that we did not hold in Flook that the mathematical algorithm could not be considered at all when making the § 101 determination. To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious. The analysis suggested by the petitioner would also undermine our earlier decisions regarding the criteria to consider in determining the eligibility of a process for patent protection. See, e. g., Gottschalk v. Benson, supra; and Cochrane v. Deener, 94 U. S. 780 (1877).
Why are you beign so coy?
Why did you stop hanging around playgrounds every day and playing with yourself behind a bush? You never explained why you cut back to five days a week. You must have gotten a disease. Why are you so afraid to dicuss that? Is it that hard to be honest?
Seriously, man: see a psychiatrist. Or find a trustworthy friend and show them your last fifty or so comments here and ask them what they think about your mental health. Dennis appears unwilling to help you. That’s too bad.
You effectively forgot Myriad.
Now answering a yes/no question – now that is difficult (oh, and it has to do with intellectual honesty, which apparently for some is so High on a list as to be unachievable).
/off sarcasm.
Thanks.
I am sure that you recognize (because you have voluntarily admitted exactly that) just what the current controlling law is on the exception to the printed matter doctrine.
Right MF?
So you might want to be a bit more careful in your “characterizations” of some of the data and content you list, so that you are not guilty of giving a false or misleading appearance to; or concealing the truth or real nature of current controlling law and the fact that patents with legitimate claims concerning some of that data and content may in FACT be claimed in a way that does, in FACT have a functional relationship, and is, in FACT, NOT a canard.
Do you recognize the (unspun) truth of this, MF?
Do you? (hooboy – yet another test for MF’s intellectual honesty – can we expect more of the same non-answers and nonsense?)
and to make things easy for you:
dis·sem·ble [dih-sem-buhl]
verb (used with object)
1. to give a false or misleading appearance to; conceal the truth or real nature of
A process that results in the same product, but does it advantageously, surely is patentable. Diehr might be a good example. The molded part was the same when molded propertly. But the new process did it more reliable, increasing yield.
And keep in mind (sic), that mental steps are perfectly valid steps in a process claim under current law.
And also keep in mind, that we are not talking about process claims that can be performed completely within a human mind.
Finally realize that the mind cannot do all things that a “numbers in – numbers out” label captures.
I have mentioned several times that encryption is one such arena. It seems that you evade this topic altogether, and yet, when it come s down to it, all encryption is is “numbers in – numbers out” as the what that is being encrypted is largely immaterial to the actual process.
Do you still think you are ready?
“A procedure for solving a given type of mathematical problem is known as an “algorithm.” ”
409 U.S. 63, 65
Compare to the explanation in Diehr:
We defined “algorithm” as a “procedure for solving a given type of mathematical problem,” and we concluded that such an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent. 9
9 – The term “algorithm” is subject to a variety of definitions. The petitioner defines the term to mean:
“‘1. A fixed step-by-step procedure for ac-complishing a given result; usually a simplified procedure for solving a complex problem, also a full statement of a finite number of steps. 2. A defined process or set of rules that leads [sic] and assures development of a desired output from a given input. A sequence of formulas and/or algebraic/logical steps to calculate or determine a given task; processing rules.'” Brief for Petitioner in Diamond v. Bradley, O. T. 1980, No. 79-855, p. 6, n. 12, quoting C. Sippl & R. Sippl, Computer Dictionary and Handbook 23 (2d ed. 1972).
This definition is significantly broader than the definition this Court employed in Benson and Flook. Our previous decisions regarding the pa-tentability of “algorithms” are necessarily limited to the more narrow definition employed by the Court, and we do not pass judgment on whether processes falling outside the definition previously used by this Court, but within the definition of-fered by the petitioner, would be patentable sub-ject matter.
450 U.S. 175, 186 (emphasis added)
Ready Ned?
“I have created some software which will, given the right inputs, produce a design for an optimised drill bit for the type of medium to be drilled.”
and “bob gets it. Well done, bob.”
Ethical duty to protect a client’s rights FAIL
It’s one thing when an inventor does not want to pursue patent rights. That’s cool, it’s their choice. It’s quite another when an advocate ignores the facts that rights are present. That’s more than irresponsible.
No matter how you try to “characterize” it.
Software is an “abstract idea”? I don’t think so. It is neither abstract nor an idea.
And look at who is taking that t u rd in the punchbowl.
Like the lesson I gave previously MF, each of the items identified as poor quality blogging, you are the prime person posting here that engages in that activity (save one).
I have shown you how to make this a better “punchbowl.”
Maybe that too is “High” on you priority list.
“I’ve been crystal clear about my occupation since day one, d–khead.”
LOL – um, no, you haven’t. All that was needed was a simple yes/no response – which by the way, youSTILL have not given.
Why are you beign so coy? Does it really hurt you that bad to be honest and straightforward?
the point is that “beauty” like “music” is a canard to include in a discussion on patent matters
Other “canards”:
“spectator data”
“television viewing data”
“ad clicking data”
“website ranking data”
“shadow account data”
“Grandma’s DVD rental data”
“users with initials X.W.B. data”
“foreign user data”
“authorized user data”
“security access data”
“copyrighted content”
“moving image content”
“audio content”
etc.
It’s good you are happy with yourself.
link to patentlyo.com
“Bilki’s invention is a process, a series of acts or steps to be taken. He gets his Patent, case closed.”
— “Actual Inventor” Aug 13, 2009 at 01:23 PM
Gotta love the archives.
And for those who like pictures:
link to foucault.info
Although I’m not sure that Rodrigo gets it.
NWPA Yes, the Google car of course can run on a general purpose computer.
I wasn’t disputing that fact with my “seriously” comment. I was questioning why anyone would refer to a generic self-driving car as a “Google car.” The concept of self-driving cars and the technology to make such a car predates Google.
Google is a classic example of a company that is diligent in its pursuit of patents that broadly cover obvious uses of information. Examiners will look at Google’s applications and they will pretend that people never processed information when they drove cars. Examiner will pretend that information about roads and traffic simply did not exist and that people never used such “different” kinds of information before (“b-b-b-ut this information is from a s-s-s-atellite” “b-b-b-ut this information is collected on a s-s-s-erver and dis-s-s-eminated”). I haven’t even looked to see what feeble attempts are out there to broadly claimed cars driven by POWERFUL COMPUTER BRAINS but I’m sure I’ll need by peyuke bucket when I get around to doing so.
bob gets it. Well done, bob.
It’s really not that difficult.
If you weren’t such a habitual sockpuppeteer, we could of course go back in the archives see what you said about Bilski’s claims prior to the decision. I’m certain you never referred to them as claiming a “mathematial formula”.
This took me about ten seconds to find.
Might not be the most complete expression of his views, but it’s not bad for a quick search.
“they are deemed eligible by the Supreme Court!!!”
Should be “ineligible”. Whoops! 😛
99.99% of all “software claims” are written as either a machine, process or manufacture. Under 35 U.S.C. § 101, all of those are classes of patentable subject matter.
Fast forward to the distant future! Bilski claims a process and Prometheus claims a process and they are deemed eligible by the Supreme Court!!!
Instead of trying to understand why that happened, a group of Internet-weaponized blogtrolls attempts to alter reality by pretending that those cases reinforced their beliefs about the patent eligibility of anything claimed as a machine, process or manufacture. By doubling-down and pounding their fists on the table they hope to persuade the community that computer-implemented inventions are the Most Important Thing Ever. Will they succeed? Stay tuned. They’ve managed to attract the attention of one or two Federal Circuit judges who can’t seem to tell the difference between what’s in the claims and what’s in the specification. Will that be enough? Stay tuned!!!!!
A process is eligible by statute, with only two very limited exceptions of LoN/Natural Phenomenon, and Abstract ideas.
“Very limited”? I suppose, in the context of all other possible processes that could be patented. But they are not “very limited” when one considers the sort of “inventions” that present-day applicants are trying to protect with patents. As we know from Prometheus, “natural phenonema” includes any correlations that may be drawn between any two facts (false correlations and non-useful abstractions/mental steps would fail 101’s utility requirement). And we know that you can’t “rescue” claims to ineligible processes merely by tossing in some old, conventional (but eligible) step. Is that a “very limited” exception? Hey, if you say so!
Bilski was a mathematical formula
LOL! Nice revisionsism there.
Bilski claimed a “process” by any definition of the term “process”. Specifically, Bilski claimed the process of applying math in a particular business context (as I recall, claim 1 does not recite any “formula”). If you weren’t such a habitual sockpuppeteer, we could of course go back in the archives see what you said about Bilski’s claims prior to the decision. I’m certain you never referred to them as claiming a “mathematial formula”. Funny how your tune changes.
Or, for those of us who aren’t that big into reading what other people post, “ceci n’est pas une pipe”.
This is neither a new nor a difficult concept. Even people in the non-useful arts get it.
On the other hand, if the CAFC/USSC never changes anything, and businesses still keep on getting trolled out of existence, or just keep on being shaken down at the least, then it will simply be a drag on the econ for awhile longer.
There are nearly 800K apps in the iPhone App Store. The number of apps for Android is about the same. I don’t see the public, as a whole, decrying the lack of apps (i.e., software) anytime soon. The only ones who get worked up about the patenting of software is the FOSS crowd, the Pirate Bay crowd, and a few examiners who have nothing better to do with their life. Everybody else is so overwhelmed with the number of available applications that even if a few startup software companies go under, they won’t miss them.
until someone in power gets their act together and makes it right
Your lack of understanding of the law shines through again. This is a concept most 8th graders understand … Congress makes the law – not the judiciary or the executive branch.
99.99% of all “software claims” are written as either a machine, process or manufacture. Under 35 U.S.C. § 101, all of those are classes of patentable subject matter. There is nobody “in power” that is going to rewrite 35 U.S.C. § 101 – that has to be done by Congress. Until that happens, machines are going to remain patentable matter, which means software written in the context of a machine is going to remain patentable subject matter.
Italics tag off.
this could have been averted had MF simply answered my kind and gentle first post seeking clarification
What could have been averted? Your psychotic trolling with a dozen comments a day about how I haven’t responded to your asinine leading question premised on a mistaken fact?
Give me a break. I’ve been crystal clear about my occupation since day one, d–khead.
“All he has now”
That and the fact that it is law, you mean.
LOL
What has tangibly changed when doing this when processing data using your mind + pen + paper? The pencil has lost some of its graphite and the paper has the graphite deposited on it. That doesn’t make the processed data tangible.
I have created some software which will, given the right inputs, produce a design for an optimised drill bit for the type of medium to be drilled. The software prints (either to screen or to paper) a wireframe model and shows the precise angles and positions of edges and vertices of the final shape of the optimised drill bit.
What is the output of this process? It is a design. Is the design tangible? It may be printed on paper but that doesn’t make it a drill bit… it’s just a representation of a drill bit, a description. You couldn’t use the printed design as a drill bit. It’s symbols on a piece of paper and, when reversed to show only the blank side, indistinguishable from any other piece of paper of the same size/weight/colour/etc.
I could, given the time and inclination and the same inputs, produce the same design for optimised drill bit that my computer + software + printer could produce simply by using my mind + pencil + paper. I wouldn’t bother usually because a computer is going to be quicker than I am because there will be lots of iterations and I get bored.
Now I don’t think that my software + computer + printer/screen are patentable. It’s producing a result that is just a pretty picture with lots of different shapes – side view, top view, etc with numbers to represent distances and angles. Basically it’s a lot of symbols on the screen or paper.
If I had a metal cutting machine which could be attached to the computer + software and would take the outputs of the computer + software and create an actual drill bit then I’d argue that the metal cutting machine + computer + software were possibly patentable because there is a tangible result of this combination.
Deener – never read it, but if it’s a physical machine processing grain then I’d say that it was patent eligible because it is a physical machine and it’s doing something to tangible items. I wouldn’t be able to process grain with pen + paper + mind (without touching the grain).
If I had a general grain processing machine – it could accept different types of grain of different sizes and shapes and it could process grain in a multitude of different ways, eg coursely ground, finely ground, as a paste, as a newly constituted solid block in a particular shape etc. This machine can also accept more than one type of grain at the same time to produce a mixed powder/paste/etc.
Does it become a “new” machine if, instead of maize grains to produce a paste, dried meat is put in it to produce mince? No, sorry, “new” process producing a tangible output I’ll accept, but not new machine.
Even if the “new” process of using this machine with meat to produce mince is patent eligible, the machine is still the same machine doing the same thing that it was built for… AND it is outputting something tangible.
The humdrum desktop computer when hooked up to a printer or monitor and running some design software is not outputting something tangible. It’s just outputting symbols.
Shame indeed that you cannot discern the differences between data processing to produce new data and physical processing to produce new physical items. One is abstract, the other isn’t. One can be done with pen+paper, the other can’t.
Still waiting for that non-circular definition of “technical,” Ned.
You also have failed to acknowledge that the US courts have HELD that there is no “technology” requirement in US patent law.
Cat got your tongue?
So this is what you’ve been crowing about for 3 days? That was a quote from the article that MM linked to, genius.
HAAAA! I was wondering what set our resident sociopath off on his latest psycho tangent.
How much longer are you going to let this “anon” t u rd float in your punchbowl, Dennis?
“No other 101 case was so naïve,”
Ned, that’s no way to discuss the case most on point (even if Prometheus cannot be squared with the case it said it was reinforcing).
I smell a Ned Mutiny.
MM, you embody all that is wrong with our society. Greedy intellectually dishonest swine.
LOL.
I think NWPA is completely wrong.
The little circle is proof that some mental steps actually destroy information.
Actually, that’s a far less outlandish than you might think, given that it is the Dept. of Commerce that houses the USPTO (especially when you consider the absolute silliness of people trying to kick up dust with non-useful art things like beauty and poetry).
“Why do you think he “intended” to make such a concession? ”
So as not to overly antagonise judges that might be sympathetic to killing this specific patent but aren’t so sympathetic to killing all software patents. Remember, his goal is to win this case, not kill off all software patents.
“Do you recognize the effect of such a concession?”
Yes, the judges are less likely to jump on that point if neither party is contesting it. But they still may, at their choosing.
“Did you hear the line about Rich’s beating heart?”
Yea and it was as rt arded as ancient people deifying their ancestors. There was no “smack down”, more like a pathetic attempt at squirming back into favor with his outdated nonsensical views. He no longer has the force of Rich’s personality/legend to back up the nonsense, which was the only thing supporting it imo. All he has now is his fanatical practically religious devotion to those views.
How is the exact date stamp not explicit?
Really Leopold, as someone else also said: that is archived here too.
Phhffffft.
is what you are paid for.
Ah, that would be AI’s outlandish theory of patent-eligibility. If you can trade it for money, it must be statutory.
Just think IANAE that “[t]hey’re the ones that only turn information into other information,” is what you are paid for.
As someone recently said, “I asked you to be explicit, so that we can discuss. Unless you are afraid to discuss…”
But forget it. Have a nice day.
Actually Leopold, you need to open your eyes, as I provided a very simple straight forward answer even before you asked.
It is clear that you are not bothering with what I have actually said, and only wish to satisfy your fetish for shooting arrows at your feet. If you bothered, you would not see any evasion: But you have to open your eyes, son.
The conundrum of Benson is that executing instructions on a computer is physical, not mental.
That’s only a “conundrum” if you subscribe to NWPA’s outlandish theory that anything is statutory if it invokes the laws of physics somehow. And even then, a mental step performed in the human brain is just as physical.
Mental steps performed are still mental steps. We all know which ones they are. They’re the ones that only turn information into other information.
It seems that we would have the usual banal stuff about poetry, how great the EPO is and the usual QQ ZZ let’s try to bash Kappos stuff then talk about any of the interesting side things I have provided.
Maybe I am just not understood – LOL LOL LOL.
More like, the circle has their agenda to attend to.
What dicta about novelty?
I asked you to be explicit, so that we can discuss. Unless you are afraid to discuss…
“A process must do something new”
Do you mean “in a new way,” or do you mean “obtain a new result?”
You don’t seem willing to address this distinction. Why?
“ It must transform something physical into a new state.”
Your previous attempts to resurrect MoT?
I smell a mutiny against the Supreme Court.
Bilski: MoT not necessary.
Prometheus: MoT not sufficient.
Ned – are you denying that this is the law?
Can I make it any simpler?
Well yes, you could actually answer, rather than evading. I asked two specific yes or no questions, and you answered neither.
That’s fine, but don’t pretend that you actually want to have a substantive discussion.