Do the Wright Brothers Deserve a Patent for their Flying Machine?: Why Eliminating Software Inventions from the Patent System Makes No Sense.

Guest Post by Martin Goetz

Imagine that the digital computer and the stored computer program (software) existed in the late 1800's. If so, there is a high probability that the Wright Brothers would have used a computer program to control the three-axis control system in their 1903 Flying Machine patent application. If they did, we would call the patent they received in 1906 a software patent. Further imagine that today's anti-patent zealots who preach that all software consists of abstract ideas, mental processes or mathematics were thrown back in time to the late 1800's. And finally imagine that they were successful in their stated goal to eliminate all software patents through an act of Congress. Had that really happened, the Wright Brothers would not have received a patent for what is recognized as one of the greatest inventions of the 20th century.

Think of all the great inventions in the 20th century. Many would have used a software program as they implemented and disclosed their inventions. Would we be better off today if there was no patent protection for those software inventions?

For the last 50 plus years, the nature of software and of software products has been significantly distorted by opponents of software patents. But their argument to eliminate all software patents makes no sense unless their goal is to eliminate the entire patent system.

Here's why it makes no sense….

Article 29 of the TRIPS guidelines covering "Disclosure Obligations" states "…An applicant for an invention shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention…." If the best mode includes software (a computer program), then that disclosure would describe the software through diagrams, flow charts, and descriptive text.

According to Wikipedia "there is no legal definition of a software patent". Let's look at two possible definitions.

Definition 1: If the definition of a software patent is that, if in the Disclosure of the invention, there is a description of a computer program (in whole, or in part) then the patent would be called "software patent". A "Software patent", under this definition, would be found in many industries, e.g., Software, Telecommunications, Manufacturing, Transportation, Appliances, Medical, Robotics—to name a few.

Said another way… In many industries inventions contain software programs as part of their disclosures. Take the Robotics/Medical Devices sector, where very sophisticated computer programs can control an artificial limb. How the artificial limbs are designed and constructed may be the invention. Or the invention may be how the computer program(s) interacts with the artificial limb. Or the invention may be a combination of both elements.

A more recent real life invention is the artificial retina, a robotics/medical device which offers partial vision for the blind. It's described as a camera, transmitter, and cable to video processor (software) connected to the brain.

So those that want to eliminate software patents, by design or by ignorance, would eliminate all robotic/medical device inventions where the disclosure includes a computer program.

Definition 2: Anti-Software patent zealots might argue that the definition of a "software patent" is when the disclosure of the invention only describes a computer program and a computer. And then their goal would be to have Congress change the Patent System to eliminate the issuance of "software only patents". But that would be catastrophic for the Software Industry, where many of their inventions are software only. This industry is made up of thousands of companies and is recognized as one of the top three manufacturing industries in the world .With annual worldwide revenues well over $ 300 Billion this industry needs (and wants) just as much patent protection as other industries.

Many software product companies can be thought of as high-technology manufacturing entities. Many of their products are state of the art, developed in a competitive, fast-moving environment that requires rapid response to meet user demand. Some of their products can be all software i.e., Google's search program or they could be a combination of software and hardware circuitry and/or devices i.e., Google's driverless car or the 3-D printer.

If the patent application contains a true invention it should be irrelevant whether or not the invention is disclosed as a "software only" implementation. The following are two examples of inventions from the Software Industry to illustrate my point of view

Back in November 2012 Microsoft stated in a press release "Microsoft researchers have demonstrated software that translates spoken English into spoken Chinese almost instantly, while preserving the unique cadence of the speaker's voice—a trick that could make conversation more effective and personal." Certainly the way Microsoft's researchers accomplished this complex translation is not obvious. And I have is little doubt that Microsoft will try to protect its research investment with a patent application. But its patent claims could not be that it invented "speech recognition" or "language translation", or even "voice to voice translations". Patents for Voice and Speech Recognition patents go back well over 30 years with IBM having over 200 speech recognition patents. And there have been language translation patents for many years But Microsoft could invent a new way to do voice recognition and language translations and at the same time retain the cadence of the speaker's voice. And, let's imagine, the invention would use a standard headphone and the headphone would not be part of the disclosure. Such a patent on that invention would be software only (and a computer) in its disclosure. But what if the invention needed a special set of headphones (a device), was integral to the invention, and was part of the disclosure? Is a speech recognition/translation/cadence and special headphone invention any more innovative than a "speech recognition/translation/cadence" software only invention?

In 2000, a renowned inventor, Ray Kurzweil received a patent named Reading System which Reads Aloud from an Image Representation of a Document. The patent disclosure shows a diagram of a monitor, scanner, speakers, and a PC computer composed of a processor, storage and a keyboard. The essence of the disclosure and the invention is a logic chart describing a machine system which interacts with a speech synchronizer and the various devices.

The first sentence of the abstract in the patent stated "a reading system includes a computer and a mass storage device including software comprising instructions for causing a computer to accept an image file generated from optically scanning an image of a document."

At that time, Ray Kurzweil's company, Kurzweil Educational Systems marketed a special purpose hardware/software system called the Kurzweil 3000 Reading Machine which was marketed to the blind and poor readers. They received a patent on this invention in 2000. Today the company sells a software only system called Kurzweil 3000 and continues to have the protection of the patent system through his original 2000 patent and with additional patents e.g., Reducing processing latency in optical character recognition for portable reading machine — another software only patent.

Few would argue that the Kurzweil 3000 Reading Machine was not an invention and not deserving of a patent.

What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness. With that I heartily agree. To their credit, the Patent Office and the Courts are today grappling with how to recognize obviousness in a patent application. A very difficult challenge, to say the least.

But let's stop calling a true invention that includes a computer program in its disclosure a software patent. In fact, let's eliminate the phrase "a software patent" from our vocabulary.

END

224 thoughts on “Do the Wright Brothers Deserve a Patent for their Flying Machine?: Why Eliminating Software Inventions from the Patent System Makes No Sense.

  1. How about you actually read what i have already posted?

    In other words, my answer is already in writing.

    It’s even archived – and I made it easy for you by providing the hyperlink
    (there’s even a bonus on that thread – let me know when you find it (but don’t burn your little fingers – again)

  2. Sorry Malcolm, I am still waiting for you to provide your answer to my directive at 7:39.

    You do kow what answers are, right?

    Do you need a translation of “Define ‘useful’?”

  3. You failed to make that point.

    Right. But if I show you where 101E has engaged in “blatant name calling” I will have made that point in an uncontestable manner.

    Are you challenging me on that score, anon? Let’s be clear. Not that your reputation is at stake. That’s already established.

  4. My what pretty dust you are kicking up here.

    Translation: “I can’t think of any reasonable response at the moment so I will simply insult you.”

  5. without anonymity

    LOL – because you would never use anonymity, huh Francis?

    Let’s try to keep this real, please.

  6. To the extent that I have always posted.

    Translation: “I lack the English skills to put my answer in writing.”

  7. “Serious question: is Malcolm the best that the anti-software patent proponents have to offer?

    Serious question: who is better and why?

  8. You failed to make that point. I have alwasy said that i am willing to play by any rules as evidenced on these boards, and I am very willing to rip off your head and hand it back to you. Nothing hypocritical about that.

    On the other hand, you do succeed (yet again) in accusing others of that which you do.

    Atta boy, Malcolm.

  9. “dude,” the problem comes from your lack of ability to be intellectually honest as you push your agendas.

    It’s a “you” problem – as I have said, I have no problem with a discusion of policy and rational – when they are properly presented as such, and not spun as existing law or fact.

    Just [shrug] and stand by as I hand you your head (yet again).

  10. Great – you know how to cut and paste.

    Now, show some capability of thought and string what you cut and paste together into a cogent reply to my 6:57 pm post.

    Thanks.

  11. “…all you have is execution of a disembodied algorithm.”

    Algorithms do not generate heat, disembodied or otherwise. However, all known methods of executing an algorithm generate heat.

    disembodied adj. – lacking in substance, solidity, or any firm relation to reality

  12. you have admitted yet another dogma toasting poin

    Are you saying that you agree with I wrote? To what extent?

  13. Define “useful.”

    Touché.

    btw: Money: 1.A current medium of exchange in the form of coins and banknotes; coins and banknotes collectively.

    Okay, then.

    Claim 1: A current medium of exchange in the form of a banknote, wherein said banknote is worth $1 US dollar.

    Eligible for patenting?

  14. Wow – the “House” argument goes back that far…

    Oh wait, the law includes the phrase “or any new and useful improvement thereof

    Oops. Svcks to be Malcolm.

    (and that’s not even riding him for his lack of knowledge concerning the differences between the protections afforded by copyright and patents, which he has repeatedly bumbled – yes, that too is archived)

  15. Serious question: is Malcolm the best that the anti-software patent proponents have to offer?

    LOL

    No wait,

    LOL LOL LOL

    LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL

  16. There are no new paradigms!

    The term “computer” is 400 years old. According to Wikipedia (please refute if you have different facts):

    The Greek mathematician Hero of Alexandria (c. 10–70 AD) built a mechanical theater which performed a play lasting 10 minutes and was operated by a complex system of ropes and drums that might be considered to be a means of deciding which parts of the mechanism performed which actions and when. This is the essence of programmability.

    What “new” paradigm are you trying to defend here?

  17. LOL – of course – as is everything; as is anything.

    Now that you have admitted yet another dogma toasting point, can we stop the anti-software patenting crusade?

  18. Define “useful.”

    Touché.

    btw: Money: 1.A current medium of exchange in the form of coins and banknotes; coins and banknotes collectively.

    At least as patent eligible as the famous Morse claims – the ones actually granted and held valid.

  19. the point is not “patentable,”

    The discussion is about obviousness.

    See your li’l bro 101E: “you are saying it’s “obvious”"

    See that word “obvious”? It’s an issue of patentability.

    Troll another blog, s-ciopath.

  20. discuss policy and the rational justifications

    I have no problem with discussion of policy and rational – when they are properly presented as such, and not spun as existing law or fact.

    In case you haven’t noticed.

  21. Because scatalogical, racial and sexual innuendoes are just so ‘classy’

    I’ve never said they weren’t. Key fact. Ponder it.

  22. always a sequitur (a conclusion of an inference)

    LOL – a universal answer regardless of the question.

    So very, very helpful, 6.

    (tell me, mr. homeless, where do you think Prof. Crouch’s tracking system would indicate the computer that you are using is located?)

  23. Serious question: is Martin Goest the best that the software patent proponents have to offer?

    I think it may be the case that he is.

    But do the software patent proponents think they have a better spokesperson? Like a spokesperson who is willing to defend the sort of claims that anon, 101E, Quinn think are worthy of patent protection? If so, who is that person? I’m extremely curious.

    I recognize that it’s entirely possible, of course, that Martin’s arguments are the sort that very few people would be willing to embrace in any meaningful sense without anonymity.

    Do let me know who the present-day “experts” in this area are. David Kappos perhaps?

  24. You mean, besides it being the law, right?

    In case you haven’t noticed, anon, people here like to discuss policy and the rational justifications for patent laws, whether those patent laws are yet to be passed, whether those patent laws are currently in force, or whether those patent laws have been forgotten (for good reasons or for other reasons).

  25. Tell me how a disemodied anything generates heat.

    Careful – see MPEP 2101 (factually misleading), as well as 37 C.F.R. 1.91 – the Office does require a working model for such a device.

    And you first – I insist.

  26. based on the purely functional claim

    Blatant Lie Alert.

    or B-claims

    LOL – what was the controliing law affecting the exceptions to the printed matter doctrine that you so brilliantly and selflessly volunteered as an admission?

  27. “The PTO make us jump through hoops for software patents that they don’t for hardware, and that’s what’s wrong.”

    I agree, you should file a watchamacallit “arbitrary and capricious” nonsense lawlsuit in an attempt to end this having to jump through hoops and thus inadvertently end the PTO’s issuance of software patents for good.

  28. otherwise old… into a patentable method

    Nice. But the point is not “patentable,” but rather “patent eligible.”

    See the comments on the 50-year old battle thread:

    link to patentlyo.com

    See also Prometheus (9-0 baby) for the trashing of the “WHATEVER” argument.

  29. Since thinking generates heat, you must believe that everything is embodied.

    The commenter Les has indicated without reservation that mental processes should be patentable (under the existing statutes).

    I’m not aware that anon has ever repudiated that position in an umambiguous manner. I certainly have. I’ve little doubt that greater than 99% of the educated earth’s population also agrees.

    But you know how these t—b-ggers are.

  30. “economic importance” is a statutory requirement? a constitutional requirement? How would it be determined?

  31. If I invent the new machine whose physical output varies from the old machine only in the heat it generates as a byproduct of electricity consumption, then I think that the so-called new machine is not new in any patentable sense.

    It’s also not patentable based on the purely functional claim you have described. If the only difference between your device and the prior art was that it generated heat more efficiently than any other prior art device, the structures responsible for that difference must be described. And by “structures” I mean structures, not so-called “electronic structures” which are methods in legal fiction clothing.

    This whole tangent is rather amusing. What percentage of computer-implemented claims (methods, “systems” or B-claims) include data about improvements in “heat reduction” relative to the closest prior art in their disclosures? That’s right: exactly zero.

    Once again, we see the software patent propenents pretending that they actually care about promoting progress. They don’t care about that. They care about making money. Right now. That’s all they care about.

  32. Nah, I’m a homeless guy, but if I was then I would be part of the problem!

    And the fact that the government, and government in general, is the problem, not the solution, is always a sequitur (a conclusion of an inference) when we’re discussing changing something about the government.

  33. You first.

    Execution does not embody a disembodied algorithm. “A-B” is a disembodied algorithm as it has no relationship with anything in the universe. Executing it does not embody it. E=mc^2 is not a disembodied algorithm as it expresses the relationship between non-abstract concepts like energy and mass. (I’m not saying that it is patentable, by the way).

    Since thinking generates heat, you must believe that everything is embodied.

  34. simply holding them invalid

    You might want to provide a legal basis for that.

    Especially as Malcolm has voluntarily admitted that “configured” to is structural, his post here merely falls to the “blatant lie” category.

  35. Plain fact: hardware is equivalent to firmware and is equivalent to a software.

    Depends on how they are claimed.

  36. MM, why not punish these folks by simply holding them invalid. If they were not wise enough to also include MPF claims in their set of claims for completeness purposes, that is their call and their malpractice.

  37. If left unchecked, such acts really diminish the professionalism and integrity of the blog, and distract from the discussion.

    Hmmm. Perhaps a visit to the archives would be refreshing at a time like this.

    Nah. I think our memories are better than that.

  38. 101, there is an “assumption” that an integrated circuit operates on physical inputs and generates physical outputs. Take and analog integrator. It takes a signal, and generates an output equal to the sum of the inputs over time. An analog multiplier has two signals as inputs. The output is a multiplication of both, but it too is a signal.

    If the programmed computer would similarly operate on inputs and outputs, we would not have disembodied algorithms. A programmed computer would be equivalent to a circuit in context, or if implicitly used ADCs and DACs.

  39. So, you are saying it’s “obvious” someone knows how to do something that has never been done before because it’s “obvious”. Well, you do not have to be a legal genius to know that’s a circular argument and not logical.

    I don’t think that’s what IBP is saying. He’s saying the merely tossing in words relating to “computer-implemented”or “automating” and/or “processor” and/or “controller” etc are not enough to turn a method that is otherwise old (e.g., “identifying available real estate”) into a patentable method. That’s because the method is old and using computers to automate data processing is old, and to the extent the claim merely recites steps (1) necessary to perform the automation or steps that (2) anyone wanting to automate the process would consider optional unless the only reason for including those steps would be to avoid anticipation, then that method doesn’t merit patent protection.

    The legal definition of obviousness presumes that the claim in question is new. The entire point of addressing obviousness is to prevent the patenting of new methods/compositions that are technically “new” but are still not worthy of patent protection.

    The “circular argument” is exactly the argument that you are making, 101E (“if it’s so obvious, why hasn’t it been described before”). This has been explained to you before, dozens of times at least.

  40. NSII,

    Try to think a bit before you post.

    If something is generating heat, there is no way you have a disembodied anything.

  41. Claim 1. A machine configured to fly in a controlled manner farther than any other previous machine, wherein said machine comprises (1) wings and (2) a controller.

    2. The machine of claim 1, wherein the machine comprises a communication device, wherein said device is configured to transmit and receive communications to and from said machine and to and from a ground transmitter.

    3. The machine of claim 1, wherein the machine comprises a human with a last name beginning with the letter ‘W’.

    PROMOTE THE PROGRESS!!!

  42. Patent, the genius of patents is that they publish what were formerly kept as trade secrets.

    Now even more true under the AIA. What’s new to you is still new.

  43. The PTO make us jump through hoops for software patents that they don’t for hardware, and that’s what’s wrong.

  44. NS, I agree. If I invent the new machine whose physical output varies from the old machine only in the heat it generates as a byproduct of electricity consumption, then I think that the so-called new machine is not new in any patentable sense.

  45. Night, computers that simply consume electricity are as useful as heaters. Why don't you grow up and acknowledge that heat generating computers are not eligible as new computers. They must do something new.

  46. “If the purpose of the circuit is to generate heat, that is useful. However, if heat is only a by-product of processing the inputs and outputs, then all you have is execution of a disembodied algorithm.”

    If the algorithm is executed by an “integrated circuit” then the algorithm is not disembodied.

  47. IBP: “if it is correct, “making money” is not a specific, substantial, and credible utility as required by 101.”

    We are discussing 103 not 101. And since when is making money not useful?Besides, processes that improve quality, productivity and efficiency are what lead companies to profitability (making money). (See W. Edwards Deming – on that.) And such processes, and improvement of processes, are not only useful, and therefore meet the utility requirement under 101, they also are patentable under 103.

    IBP: “This is incorrect. In the alternative, if it is correct, they have done it already, just not on a computer, not all at once, or on a computer, but slower.”

    Your above statement is incomprehensible. The reason why is that the reader can’t determine clearly if you are agreeing, or disagreeing with the argument at Apr 04, 2013 at 04:01 PM and why. Is English your second language? Seriously.

  48. IBP: “BECAUSE IT IS OBVIOUS, you legal genius.”

    So, you are saying it’s “obvious” someone knows how to do something that has never been done before because it’s “obvious”. Well, you do not have to be a legal genius to know that’s a circular argument and not logical.

  49. If the purpose of the circuit is to generate heat, that is useful. However, if heat is only a by-product of processing the inputs and outputs, then all you have is execution of a disembodied algorithm.

  50. Besides IBP, what I said about “Integration”, WAS in Diehr, as proved by my Court citation(s). If you claim that it is not then you need to show your reasoning and provide some support. Like, for example, quoting a passage from Diehr that is opposite of, or contradicts my “Integration Analysis”. This is the way intelligent, educated, professionals engage and discuss and debate an issue. Anyone can call someone names and/or simply shout, you are wrong.

  51. IBP Said: “I’m not saying that what was said in Diehr was gobbledygook, I’m saying that what YOU said was gobbledygook,”

    101 Integration Expert: Sorry, you are going to have to be more specific.

    For example, what is it that you want the reader to believe, or understand?

    What specifically in my “Integration Analysis” do you consider gobbledygook, and why?

    Otherwise, it does appear you have no true point to make, and/or have a reading comprehension problem that you are trying to mask by making accusations.

  52. Inviting Body Punches said “101 Defecation Expert”

    Dennis can you please say something about this blatant name calling? I have seen you step in and comment when people post under different monikers but such pure insults are much more serious an offense. If left unchecked, such acts really diminish the professionalism and integrity of the blog, and distract from the discussion.

    Thank You

    101 Integration Expert

  53. “In many areas of information processing, we know how to do it, it just isn’t fast enough for practical implementation.”

    If you can’t practically implement it, for whatever technical reason, it’s obvious you simply don’t how to do it, yet. And as soon as someone starts making excuses about why something can’t be done, all they are really doing is confessing, they do not “know how” it can be done.

    “Describing the algorithm alone is insufficient, no matter how much faster it is at just crunching the numbers. It’s insubstantial.”

    No one is arguing that describing stand alone algorithms are patentable. That’s a poor Strawman argument at best.

  54. I’m not saying that what was said in Diehr was gobbledygook, I’m saying that what YOU said was gobbledygook, to the extent that it was amenable to comprehension.

  55. Yes, and I’ve done it many times.

    Which does not in any way foreclose the possibility of engaging in some thoroughly enjoyable yet gentle grammatically-based derision.

    I also find MM’s “Night Wiper” to be funny every time I see NWPA post anything.

  56. Night, a circuit accepts inputs and provides outputs. Otherwise it only generates heat.

    I think a circuit that only generates heat is not eligible based on lack of utility.

  57. Inviting Body Punches said : “Once again, 101 Defecation Expert is wrong.”

    Can’t you act like an adult and express your opinion without childish name calling and insults? This type of behavior is really uncalled for.

  58. The Wright brothers are a terrible example. It’s becoming clearer that some inventors actually got airborne before them. Janes All the World Aircraft has accepted that Gustav Whitehead appears to be the earliest powered flight, so it looks like the Wright brothers were erroneously awarded patents.

    In any event, those patents stalled aircraft development for a number of years, and are a fairly effective demonstration that patents don’t “promote the Progress of Science and useful Arts”.

  59. Patent, the genius of patents is that they publish what were formerly kept as trade secrets.

    It is the further genius that innovation is protected, justifying the cost and expense where innovation is easily copied.

  60. “Just because something hasn’t yet been automated doesn’t mean that nobody knows how to do it.”

    If its never been done, as in reduced to practice, at least on paper, then how do you know anyone knows how to do it?

  61. 101 Defecation Expert: “While it is obvious to want to automate any task or process, it’s NOT obvious HOW to automate every task or process, or every task or process would be automated already.”

    Wrong on both the premise, the conclusion, and the required nexus between the two.

    In many areas of information processing, we know how to do it, it just isn’t fast enough for practical implementation. Greater speed relies on faster hardware, and potentially more efficient control of that hardware.

    To the extent that an increase in speed of a process can be achieved, if even only through an improved processing algorithm, my feeling is that such an increase in speed would confer patentability, if and only if the process itself satisfied the SS&C utility criteria.

    Describing the algorithm alone is insufficient, no matter how much faster it is at just crunching the numbers. It’s insubstantial.

  62. 101 Defecation Expert–

    “Since every business wants to make more money, faster, and with less cost, any business method that would obviously accomplish that goal, would have been done already.”

    This is incorrect.

    In the alternative, if it is correct, they have done it already, just not on a computer, not all at once, or on a computer, but slower.

    In the further alternative, if it is correct, “making money” is not a specific, substantial, and credible utility as required by 101.

  63. “101–I read what you posted, or at least I tried. In the words of the SC, it was gobbledygook. Your integration was mere defecation.”

    Inviting Body Punches, The Supreme Court has never said “Integration” was gobbledygook. My use of “integration” comes direct from the authority of the Supreme Court. So please tell me why in your opinion the following citation on “Integration” from the Supreme Court is “mere defecation” ?

    “In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula. ) [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)

  64. Once again, 101 Defecation Expert is wrong.

    Just because something hasn’t yet been automated doesn’t mean that nobody knows how to do it.

  65. 101–I read what you posted, or at least I tried.

    In the words of the SC, it was gobbledygook.

    Your integration was mere defecation.

  66. “most business-method patents, should never have been issued because of their obviousness.”

    Since every business wants to make more money, faster, and with less cost, any business method that would obviously accomplish that goal, would have been done already.

    So, if an entrepreneur invents a new process to make it, do it, or run it, faster and cheaper and at a higher profit, another business should not have the right to come along and steal the process, under the rationale, it was obvious to invent. Only outright thieves, and socialist/communist sympathizers would harbor such a view.

  67. YOU need to have reasons to persuade people to change the law.

    (Just a little clue as to how this thing works)

  68. It’s common sense that patents increase innovation. The ancient Romans and Greeks, and the Eskimos did not have patents, therefore they never innovated.

    People need to be filing more patents.

  69. “Right now the status quo appears to be that any computer-implemented method which recites “new” content going in or out of a computer or going to or from a “new” source/destination is patentable. That’s absurd”

    Well, if it’s automating a process, that’s not absurd, that’s called “progress”. The thing that is obvious is that the world wants it’s tasks, from the simplest to the most complex, to be automated. So, it’s a safe bet that if someone knew how to automate any task it would be done already.

    Therefore when a software engineer succeeds at a new automation of an old task, the “process” of automating the task is non obvious.

    The “motivation” may be obvious, but we do not grant patents on motives, we grant patents on inventions that promote the progress of the useful arts.

  70. “He now wants us to ditch 101″

    Since software is an integrated technological process, ( an argument you have personally failed to overcome) I do not think there is any question under 101, as long as it’s new and useful. So 103 seems entirely appropriate.

  71. In at least 10 applications suffering from this exact problem I have yet to have one overcome the drawings issue and proceed to issue of their claim. Only 2 even tried.

  72. “What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness.”

    While it is obvious to want to automate any task or process, it’s NOT obvious HOW to automate every task or process, or every task or process would be automated already.

    Obviously, it would be wonderful to have automated flying cars, like the Jetson’s. But apparently no one has the skills or knowledge to make that happen yet.

    So, if some brilliant software engineer actually invents a software process that automates flying cars, and no one else in the world has been able to create such a process, despite the long felt need and desire for such a process, that invention is de facto non obvious.

    And so it goes with ALL software that succeeds at automating a process or task that has never been automated before.

  73. That is not true. See Diehr. Plus, if you notice, the SCOTUS has backed off their everything that has a number in it is a natural law. They have moved into maybe the 12th century in terms of their science thinking.

    But, given how Obama is stacking the Fed. Cir. with people that have no science background or patent law background, I have no doubt that we will go back into the medieval thinking.

  74. Goetz: “Imagine that the digital computer and the stored computer program (software) existed in the late 1800′s. If so, there is a high probability that the Wright Brothers would have used a computer program to control the three-axis control system in their 1903 Flying Machine patent application. If they did, we would call the patent they received in 1906 a software patent.”

    What a fricken strawman argument. No one that I know of, truly, is arguing or has argued that a programmed computer applied to a useful end is a software patent. What is under discussion only, to my knowledge, are patents on software that simply calculate, or that have physical data gathering steps such as in Mayo followed by a calculation. The calculation is the end product of the claim, not its use to actually do something useful.

    Benson made it clear, I think, that a claim to a calculation without any practical use preempts all practical uses of something that is not eligible.

    Diehr made it clear that when such a calculation is applied to a process otherwise eligible, the line is crossed into patentable subject matter.

    Since there is no serious debate about Diehr or cases like Diehr, the advocate of software patents are clearly trying to reverse Benson.

  75. Regardless of whether something “is” the law today, when you’re debating whether it “should” be the law, you need to have reasons if you want to persuade people.

  76. MD: “Does it include methods of selecting a lawyer, for example.”

    Well, since it included methods of selecting groceries I don’t see why lawyers would an exception.

  77. I probably should know this — but what is the case that says that you cannot claim function at the point of novelty in a composition claim (but you presumably claim function at other points in the claim)? Thanks

  78. – 101 AND 103 are available in EVERY instance in EVERY application. — Yes, but it comes back to exactly what is disqualified under 101?

    Maybe CLS Bank v. Alice when it issues will help (or maybe it will just muddy the waters)

  79. – The proper question is whether it’s obvious in light of the existing manual process. — I agree

  80. My opinion of Malcolm is well documented and known. However, he is sounding more and more persuasive to me with each passing day. I’m not sure if that’s a result of him simply becoming more persuasive, or a result of the increasing ridiculousness of those Malcolm describes as patent fluffers. I’m thinking it’s more likely the latter, but I agree probably 99+% with Malcolm’s political views, so maybe that’s factoring in too.

  81. “And invite a killer objection to your drawings which of course will not show the software loaded into the memory of the computer, or probably anything special about the ‘special purpose’ computer, or the firmware.”

    A killer objection? Lulz. You continue to amuse.

  82. “What a great claim to eliminate your 101 worries.”

    And invite a killer objection to your drawings which of course will not show the software loaded into the memory of the computer, or probably anything special about the “special purpose” computer, or the firmware.

    Not to mention a 101 anyway for whatever abstract idea you’re trying to preempt.

    But, if you draw it all out, meh, you might could slip by.

  83. “Some of us must on a daily or weekly basis charge clients for the creation of protective patent specifications against the anti’s (zealots, madmen, bab00ns.) ”

    You mean like you “and” Mr. Goetz here? Or just like “you” aka Mr. Goetz? TBH, I don’t think you “must” do this thing that you “and” Mr. Goetz are doing. You could, for example, go be a greeter at walmart and actually do something productive with your time.

  84. “that today’s anti-patent zealots ”

    “who preach ”

    Hello NWPA.

    ” But Microsoft could invent a new way to do voice recognition and language translations and at the same time retain the cadence of the speaker’s voice.”

    Or they could just write some new software… like they did.

  85. If the only reason you can think of to justify software patent protection

    You mean, besides it being the law, right?

  86. Well, you have responded to yourself so AAA JJJJJJJJ will not take your seriously and believe that you are vain.

  87. worry that the courts are going to someday construe “processing circuit configured to …” language to be a means-plus-function limitation

    Bet on it.

  88. What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness. With that I heartily agree.

    Seriously, I can’t think of any “zealots” who have not been pointing out the obviousness of “many” software and business method claims all the time.

    If the invested proponents of software and business method patents were at all concerned about these patents “that never should have been issued because of their obviousness”, why aren’t they advocating more strongly for changes in the way these patents are examined? And by that I mean not just hand-waving that “examination needs to be improved”. Where are the details about why “many” software and business method claims are obvious?

    For instances, it’s ancient and well-known that computers can receive, store, “process” (i.e., rank, sort, correlate, “determine”, etc) and transmit information relating to any subject. Any and every claim that merely recites those steps in general terms is per se obvious, regardless of whether the information received or transmitted is “new” or “useful”.

    It doesn’t matter if it’s data about “real estate availability” or “Johnny’s credit card” or “legal skills” or “commercials viewed” or “commercials not viewed” that are being “processed”. It doesn’t matter if the information is coming to or from a phone or a laptop or a “hand-held device” or a “robot car” or a “satellite” or any other manufacture that isn’t patentable on its own merits. It’s still per se obvious. All of it. There are no “unexpected results” because these so-called “inventions” have no utility other than what anyone reading the claim (regardless of their skill) would expect them to have.

    Note that I’m not saying here that “all software” is per se obvious. I’m just saying that a great deal of what is presently being pursued and granted are certainly per se obvious once some reasonable lines are drawn. Right now the status quo appears to be that any computer-implemented method which recites “new” content going in or out of a computer or going to or from a “new” source/destination is patentable. That’s absurd. It was always absurd and the failure of the PTO and the courts to recognize that early on and apply the law reasonably and consistently is how we got into the present mess.

    It just amazes me that software patent “inventors” want to be taken seriously when they assert that they are the lifeblood of the US economy when they are simultaneous telling us that the level of skill in the art in their field is, judging from their own admissions and from the laugh-worthy j-nk they file on, darn close to zero.

  89. “But that would be catastrophic for the Software Industry, where many of their inventions are software only. This industry is made up of thousands of companies and is recognized as one of the top three manufacturing industries in the world .With annual worldwide revenues well over $ 300 Billion this industry needs (and wants) just as much patent protection as other industries.”

    You should probably provide some support for sweeping normative statements. If the only reason you can think of to justify software patent protection is that the software industry is big, then you don’t really have a reason…

    Some debatable reasons I’ve seen are (1) that software patents grease the wheels for early-stage investment; and (2) that software patents protect a “natural right” to the fruits of one’s labor.

  90. “Software configured” renders a machine transformed into a new machine (and thus, no longer a GPC). See Alappat

  91. NO!!!! New technology must be understood in terms of old technology!!!!! There are no new paradigms!

    End of sarcasm.

  92. What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness.

    Let’s also eliminate the phrase “a business-method patent” from our vocabulary.

  93. I think that makes for a fine claim element, NWPA, and I use that structure all the time. I try to stay away from an apparatus claim having only a single element of this type, however, for a couple of reasons. One, the claim is too reminiscent of the claim in In re Hyatt – I worry that the courts are going to someday construe “processing circuit configured to …” language to be a means-plus-function limitation, which would then make your claim a single-means claim. Two, if the method your processor (whether it be a general purpose computer with software or custom hardware) is carrying out can be implemented without reference to anything outside the processor, then I worry that you’re just claiming a series of mathematical operations, rather than a practical application of those operations. Usually you can add some other feature, such as a communications interface, a user interface, or something, to show that the mathematical operations are being applied to something real/practical.

  94. The first thing to do is stop trying to eliminate software under 101. That will encourage better claiming and specifications.

    And, MM, try to get it through your head that 50 years of the DOJ and USPTO trying to get rid of software by misrepresentation (laws of nature for example) has caused these problems. The USPTO should be told to zip it and get your job done and stop this nonsense. And then fire the first 10 people that try to the 101 business again—oh wait—we have Mr. Community organizer as president that has nominated a bunch of “attorneys” with little or no science background to lead the nation’s innovation and science court.

  95. A circuit configured to [insert typical software configuration].

    What’s “typical” “software” “configuration”?

    You’re still claiming function at the point of novelty in a composition claim. Then you’re going to tell us that the method recited in your composition claim is “electronic structure”. That’s the same nonsense the software patent proponents have been selling us for years.

  96. Yes, a circuit includes a general purpose computer. And, a GPC is a circuit and that circuit with the software in the memory is configured to …

  97. What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness. With that I heartily agree.

    What are you going to about it, Marty?

  98. I’m all in favor of limiting claims to those embodiments of economic importance (the public is still free to implement the inventions in their heads, with paper and pencil, using carrier waves for storage, etc.) but are you saying something like “as used herein a ‘circuit’ is defined to include a general purpose computer…”? ‘Cause that’s really bastardizing the language.

  99. Some of us must on a daily or weekly basis charge clients for the creation of protective patent specifications against the anti’s (zealots, madmen, bab00ns.) Perhaps that is why we feel strongly about this. Responding to OAs and fighting with examiners and having to eat time to put stuff in specs to protect ourselves during prosecution.

    You know, real stuff.

  100. Yes, thanks Mr. Goetz.

    The abstract thing needs to be worked on. Have you read Haliburton? It explains very well how the SCOTUS viewed processing methods as something that just enabled machines to be built like lab machines and so they didn’t want to enable them to be patentable. It was a legal fiction to get their policy goal done. It is inapplicable now to computer systems (information processing.)

  101. Re-read the article. You’re still focused on the wrong thing. It’s new and useful. The proper question is whether it’s obvious in light of the existing manual process.

  102. This is way too logical for the anti-patent zealots to understand.

    Thanks for taking the time and effort to write it up Mr. Goetz.

  103. Seriously, fellas, really spend a moment or two and fairly think about this. A claim that is broad enough to cover firmware, special purpose circuits, and general purpose computer with software in memory with the necessary specification support.

    Now, what do the anti’s do with that…..it is a brilliant claim.

  104. I recently saw a claim that made me think of the software battles:

    A circuit configured to [insert typical software configuration].

    Think this one over. The claim is brilliant. It includes a general purpose computer with software loaded into main memory, a special purpose computer, and firmware.

    What a great claim to eliminate your 101 worries. I have started using this as a backup in my software applications.

  105. Goetz has previously posted other tripe on patently-o, and none of it is worth reading.

    He now wants us to ditch 101, and focus instead on 103.

    No way. Nice try, Goetz. 101 AND 103 are available in EVERY instance in EVERY application.

  106. I think Goetz is too accustomed to writing for pipe-and-slippers-type readers.

    I have only skimmed the article, but I love this part:

    “To their credit, the Patent Office and the Courts are today grappling with how to recognize obviousness in a patent application. A very difficult challenge, to say the least.”

    LOLOLOLOLOLOLOLOLOLOL!!!!!!!!!!

    It hurts! Make it stop!

  107. I’m all in favour of ostracising the expression “software patent” if it is causing such abject confusion to so many people.

    New, enabled and not obvious is necessary but not sufficient. The ingenuity also has to be within the “useful arts”. The problem lies in deciding what that term means. Does it include methods of selecting a lawyer, for example.

  108. the Wright Brothers would not have received a patent for what is recognized as one of the greatest inventions of the 20th century.

    Somebody hasn’t read Diehr, apparently.

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