Guest post by Professor Kevin Emerson Collins, Professor of Law at Washington University Law School.
In its en banc decision in Williamson v. Citrix Online, the Federal Circuit held that there is no “strong” presumption that functional claim limitations that do not use the term “means” are not subject to the rules of means-plus-function claim construction laid out in section 112(f). There is still a presumption that claims that do not employ the term “means” are not means-plus-function claims, as Jason Rantanen explains in his earlier PatentlyO post on Williamson, but, in theory, this only requires the patent challenger to satisfy a more-likely-than-not burden of persuasion.
I understand Williamson to shift Federal Circuit case law on two distinct axes at the same time. First, as a matter of substance, it makes broad, functionally defined claims more difficult to obtain. The scope-narrowing rules of 112(f) now apply to a larger number of functionally defined limitations: a limitation that not employ the term “means” should now be governed by 112(f) whenever it “fails to ‘recite sufficiently definite structure’ or else recites ‘function without reciting sufficient structure for performing that function.’” Second, as a matter of form, Williamson makes patent law less rule-like and more standard-like. Courts may no longer use the rule-like, strong presumption that 112(f) does not apply when functional limitations do not employ the term “means.” Rather, whenever prompted to do so by a patent challenger, they must scrutinize the claim language on a case-by-case basis to see if it recites a sufficient quantum of structure in order to determine whether section 112(f) applies.
In my opinion, all things being equal, the substantive shift discussed above is a positive development. Unbridled functional claims over-reward an inventor and impose undue costs on society.[i] The strong presumption that functional claim limitations not using “means” avoided the scope-narrowing rules of 112(f) made such functional claims too easy to obtain. However, there is more work to be done to fully effectuate this substantive shift. For example, it is far from clear that the Federal Circuit will ever apply 112(f) to a method claim, despite the express mention of “step for” claims in the text of the statute. So, patentees can perform an end-run around Williamson and obtain broad, functionally defined claims simply by seeking a method claim rather than a product claim—a tactic that is particularly useful in the software arts where claims can be easily transformed from systems to methods and back again.
Nevertheless, being in a charitable mood, let’s assume all of the loopholes get closed and that all claims reciting “function without reciting sufficient structure for performing that function” are really subject to 112(f) after Williamson. It is at this point that we have to roll up our sleeves and begin the truly hard part of the work that is needed to reform functional software patents.
Bringing 112(f) to bear on software patents is tricky because the statute depends on a dichotomy between structure and function that simply does not exist in the software arts as a matter of fact. Although there is unquestionably a gray area, the structural and functional properties of a technology in the mechanical arts are, at their core, ontologically distinct to a philosopher and intuitively distinct to the rest of us. The description “coiled spring” denotes structure; the description “capable of generating kinetic energy when jostled” denotes function. However, this distinction vanishes in the software arts: most software inventions are function all the way down.[ii] Software is a powerful technology precisely because a programmer can remain ignorant of the physical, structural properties of a computer while specifying the functions that the software performs. Software functionality is therefore like a never-ending set of nested Russian dolls: you open up one more general functional description to look for structure, and all you find is another, more specific functional description. Patent law can, and does, identify an “algorithm” for performing a function as structure for legal purposes in a software claim, but it is importantly only metaphorical structure. An algorithm is a series of more specific steps for performing a more general function, but each of the steps in an algorithm is, in turn, specified only in functional terms. What is an algorithm as the term is used in patent law? It is a functional description of a software program that is specific enough that we are willing as a matter of patent policy to treat it like we treat a structural description in other arts. That is, the function-structure distinction in software is not a difference of kind but a difference of degree. Structure in the law of software patents is a legal fiction that has been manufactured to achieve patent policy goals.
The true challenge post-Williamson will therefore be identifying the level of specificity at which a functional description should count as metaphorical structure. Michael Risch alludes to this problem in his blog post on Williamson when he asked “[H]ow much structure is enough?” However, I think that a question precedent to Risch’s question is both more difficult and fundamental, namely “When is there any structure at all?” What level of specificity in a functional description counts as metaphorical structure?
To date, the Federal Circuit has answered this question with another layer of formalism that Williamson does not touch: any functional description in the specification that is more specific than the functional description in claims is likely to be metaphorical structure and thus an algorithm. This rule makes no sense from a policy perspective because the level of generality specified in a claim is often arbitrary. If a claim recites function A and the specification recites algorithmic steps 1, 2, and 3 for function A, a valid claim encompasses steps 1, 2, and 3 and their equivalents. However, if the claim were to directly recite functions 1, 2, and 3 (which are identical to steps 1, 2, and 3) without a more specific set of algorithms for those functions in the specification, then the claim is invalid for indefiniteness.[iii] The Federal Circuit’s approach to identifying algorithms is more like ducking the important question than providing an answer to it.
To be honest, I still waffle in my opinion on how hard the challenge of assessing the validity and permissible scope of functional software claims will be after Williamson. Some days, the problem seems difficult but tractable (although maybe not by an Article III court). Perhaps what we need to do is get patent lawyers, software engineers, and economists around a table. Perhaps they can articulate clear guidelines identifying a level of specificity at which functional software claims should be upheld, i.e., a level that identifies an algorithm and thus metaphorical structure. But, on other days, I’m less convinced that there is a tractable solution. Maybe the difference between a functional description of software and a software algorithm is like the difference between ideas from expression in copyright law, given that both differences are based on a levels-of-generality problem. Maybe therefore “[n]obody has ever been able to fix that boundary, and nobody ever can.”[iv] While the amount of uncertainty that follows from the idea/expression dichotomy may be acceptable in copyright law, the same amount of uncertainty in a function/algorithmic-step dichotomy in the law of software patents may not be.
In sum, although I believe that Williamson shifts the substantive reach of patent protection in the right direction, the costs of the inextricably linked shift toward a standard and away from a rule may, or may not, turn out to be too much to bear. If they are too much, then the need for a more rule-like patent regime will force us to choose doctrine that is either quite over-protective (e.g., that returns to the pre-Williamson strong presumption) or quite under-protective (e.g., that eliminates pure software patents altogether) as a substantive matter. Yet, despite the existence of these many possible futures, at least one thing is clear in the immediate aftermath of Williamson: the hard work of reforming functional software patents can now begin.
[i] The normative argument here is more complicated than is often presumed. For my take on why functional claiming should not be allowed, see Kevin Emerson Collins, Patent Law’s Functionality Malfunction and the Problem of Overbroad, Functional Software Patents, 90 Wash U. L. Rev. 1399, 1411–24 (2013).
[ii] To be clear, software only works because a programmed computer has certain physical, structural properties. But, the physical, structural properties of the programmed hardware are irrelevant to the definition of what constitutes a software invention. For more on what it means to say software is “function all the way down,” or to call software a purely functional technology, see id. at 1440–43.
[iii] Id. at 1463–67.
[iv] Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).
[…] Patently-O. There is analysis from a Law Professor at the University of Iowa College of Law and another professor, Kevin Emerson Collins from Washington University Law […]
I don’t know who these patent maximalists are, but certainly aspiring to patent business methods and the like is a major cause of the current fiasco mess the patent system is in. The maximalists pushed too far. Far to far. So much so that that the reaction to business method patents is wrecking the whole patent system.
Not only are you drinking the Kool-aid Ned, you are passing out cups to unsuspecting others.
Please stop.
[…] yet declines to provide any more specific definition of what “structure” constitutes. Some notable patent reform advocates have been quick to cite Williamson as requiring a physical structure. Yet, both the text of 35 USC […]
David, the Williamson decision only underscores the absolute need to place repeal of 112(f) among the first priorities of the patent bar. AIPLA, are you listening to your membership for even once? Your own patent law committee voted to repeal the construction clause twenty years ago. Did you listen then? Yes, you did because I gave the report. But did you act? No you did not.
It appears once again that you want the “you-align-with-Ned-Heller-so-you-must-be-an-Einstein” illness to be an epidemic.
No thanks.
In a precedential decision issued today, the CAFC tanks a functionally claimed patent covering a method of “maintaining” information while surfing the Internets. Judge Newman wrote the decision (Moore and Reyna also on the panel). Query: Was this Judge Newman’s first authorship of an opinion applying 101 to tank some junky computer claims?
The claims here are additional poster children for many of the worst patents out there. When you see the term “user interface” or “display” in a computer-implemented patent, there’s an excellent chance you are looking at a pile of pure garbage.
1. A method of providing an intelligent user interface to an online application comprising the steps of:
furnishing a plurality of icons on a web page displayed to a user of a web browser, wherein each of said icons is a hyperlink to a dynamically generated online application form set, and wherein said web browser comprises Back and Forward navigation functionalities; [<–old in the art]
displaying said dynamically generated online application form set in response to the activation of said hyperlink, wherein said dynamically generated online application form set comprises a state determined by at least one user
input; [<–old in the art]
and maintaining said state upon the activation of another of said icons, wherein said maintaining allows use of said Back and Forward navigation functionalities without loss of said state.
"Furnishing", "displaying" and "maintaining." It's 2015. When you see terms like that in a method claim and there is a complete absence of a new machine described in physical, structural terms, you can pretty much rest assured you are looking at some junk aimed at proteting ineligible subject matter. Anyone who tells you otherwise is out to lunch or trying to pick your wallet.
The relevant analysis:
For the ’505 Patent, the end result of “maintaining the state” is described as the innovation over the prior art, and the essential, “most important aspect”….We agree with the district court that the character of the claimed invention is an abstract idea: the idea of retaining information in the navigation of online forms…. As the district court observed, claim 1 contains no restriction on how the result is accomplished. The mechanism for maintaining the state is not described, although this is stated to be the essential innovation. …Thus we affirm that claim 1 is not directed to patent-eligible subject matter.
Independent claims 9 and 17 are identical to claim 1 except that their preambles state “[a] computer system for providing an intelligent user interface to an online application, comprising computer instructions for” (claim 9) and “[a] computer-readable storage medium, comprising computer instructions for” (claim 17). The statement that the method is performed by computer does not satisfy the test of “inventive concept.” Alice, 134 S. Ct. at 2360.
And other junky computer-implemented patent claim bites the dust. It should never have been granted in the first place, of course, but unfortunately there are thousands upon thousands of indistinguishable floating claims out there. Heckuva job, PTO.
Forgot to include the case name: Internet Patents Corporation v. Active Network (CAFC 2015)
Also, the paragraph in my comment above beginning with “Furnishing”, “displaying” and “maintaining.” should not be italicized. Apologies for for the formatting error.
What did I say, MM. Rubber-Tip Pencil. Ideas with to do something without any details of how, at the point of novelty, are “not enough.”
Mechanism (engineering): rigid bodies connected by joints in order to accomplish a desired force and/or motion transmission
Suffice it to say that the mechanism responsible for the “innovation” is never described in the typical functionally-descriptive information processing claim, nor does that mechanism ever appear in the specification.
That’s because programmable computers are a distinct class of machines designed for one purpose: perform logical processing of information. As everyone knows, our patent system wasn’t designed to protect those logical processes. On the contrary, information and logic has always been excluded from eligibility.
But “somehow” here we are discussing a claim that protects “maintaining” information on “an application form”, utterly devoid of a new physically transformative step (e.g., a new way of laminating paper) or a new structure (a new type of laminate).
Your post is such nonsense. Never before in human history could we represent and process information as we do now. So, your whole harkening back to history is absurd. And punch card machines were eligible for patentability. You know those things that made the census possible and were the start of IBM.
You live in the information age. This information processing is taking over the world and has been identified by brilliant people as potentially more dangerous than nuclear weapons.
Night, like Halliburton, there appears to be a combination of steps. But novelty was in the one step only. That step was devoid of anything except the instruction to do it. That step claimed a result.
Regardless of your fight with Malcolm, it would be wise to pay attention to what is going on here for future reference.
Ned
Ned, I am responding directly to what MM wrote below. And, I did read the opinion written by Newman and I understand it very well.
>That’s because programmable computers are a distinct class >of machines designed for one purpose: perform logical >processing of information. As everyone knows, our patent system wasn’t designed to protect those logical processes. On the contrary, information and logic has always been excluded from eligibility.
You do get full marks for creativity, though. You ability to spin this in every way possible is amusing and sad.
“Our patent system wasn’t designed to protect [] logical processes”
Which is a plus. Our patent system was designed (and is able to) protect inventions of any kind.
That is precisely why 101 was written to be a wide open welcoming gate – and not the t001 that the anti-patentists have attempted to make it into.
There is absolutely no reason why a computer that’s programmed to perform a new function is not new.
You have a new encryption technique. No one can break it. You claim a computer programmed to perform the technique in order to encrypt data. Under your analysis, this is not patentable, but it meets the new and useful requirements of 101.
Under your analysis, NOTHING performed on a computer would be patentable. This simply cannot be. Processors are everywhere — in cars, thermostats, phones, cell towers, you name it. One cannot make these unpatentable unless one completely ignores 101.
You keep saying that the patent system was not meant to consider such claims, but that’s untrue. They are the same as any other claims — consider what one skilled in the art would know and go from there.
PatentBob, do we have to go through this again.
Define computer.
>>but it is importantly only metaphorical structure.
Really professor. So, tell us where is this metaphorical structure? Where does it exist? Now please really think about that question. Could it be that the only place that structure exists is in your brain? Does your brain have structure?
The Russian dolls you speak of are called — in engineering — the ladders of abstraction. Yes we have names for them and are taught to use them as freshman in college. And, your assertion that they keep on going without end is absurd. I am skilled in the art. I can take a specification and claims and build the information processing system. I can work all the way down to the final doll. I can design a special purpose chip that will implement the functionality of the claims and send it out to be build. I have been a product manager for real products that have sold 10’s of millions of units.
But, now you have run across reality. I know you won’t respond to me because truth is not what this is about.
Also, professor, I was educated at two of the top five engineering schools in this country. A lot of my friends are now professors of engineering and science at the top schools in the country.
My I have permission to reprint your article above? I am seriously thinking of using it as an example of how the ignorance of science is used to shape policy in the US. I think that they would all get an enormous belly laugh over your comparison of the ladders of abstraction with Russian dolls–with no end. The no end part illustrates such a lack of understanding of how to discipline one’s thinking that my friends will gasp and laugh in horror.
But, I guess those non-peer reviewed law journal articles with 2 and 3rd year students checking the cites are the true source of science in this country.
You can’t make this stuff up. The medieval law professors.
So, we’re to agree with your position solely because you’re smarter than us?
Also, please drop the reliance on peer review. Peer review has many detriments, not the least of which is that if your idea doesn’t agree with your peers’, then your idea isn’t published. For instance, if you were on review boards and one of MM’s papers was submitted for publication, you wouldn’t publish it because it doesn’t agree with your own beliefs.
Night,
If you want to fill in a glaring hole in your computer education, I would suggest you take a look at lambda calculus.
It is a field of study that establishes that the outputs of any Turing machine can be expressed as a mathematical function of the inputs.
(Please note that I wrote “expressed as”, and not “described by”. No moving the goalposts, now.)
It is not Night that needs to see that “field of study,” but rather it is Random.
And after that we can fill the glaring hole in your IP education, wherein you might recall that you cannot have any IP protection (patent or copyright) on “just math,” with the logical conclusion that software is more than “just math.”
Count Doobie, what is your point? If I have equations that describe how a chair operates does that mean the chair becomes ineligible for patentability?
Electronic brains is what we are building.
Oh, and, by the way, professor, if you are interested in learning patent law, you might want to know that if the Russian dolls were endless, then it would be an enablement issue that is part of 35 USC 112. (But, then somehow or another I seem to be sure you interest is not in learning patent law or science.)
Night Writer,
He teaches patent law….
Scary huh?
now you have run across reality
Maybe it’s time for a vacation, NW. You know, summer’s here.
Quite a substantive response there MM. Impressive.
What strikes me is that SCOTUS, the Federal Circuit and the academics have a solution to the problem that patent law is in a hole. It is to exhort everybody to keep digging.
Whether there is enough “structure” is answered simply by enquiring whether the subject matter of the claim can be enabled by the reader of ordinary skill, over the width of the claim and whether it recites in combination those features that do deliver the invention. Why burden yourselves with more than that?
Whether the claimed subject matter is inherently the sort of stuff for which patents should be granted is answered simply by enquiring whether its novelty and non-obviousness is exhibited within a TRIPS “field of technology” (rather than in something purely social, like numbers of “Like” votes on FACEBOOK).
Somebody noted in this thread that under the EPC software is not eligible. Wrong. Art 52 EPC denies eligibility to a number of things, but only to the extent that the claim is directed to that thing “as such”.
link to epo.org
Nevertheless, when you are pitching at the EPO for a patent on software, it helps to show that the contribution your invention makes is in a field of technology.
With that approach, you can climb up, out of the hole.
There are plenty of recent references in recent US caselaw to claims corresponding to the solution of a problem in technology. Enough to provide toe holds to climb out of the hole, I should have thought.
>Whether there is enough “structure” is answered simply by enquiring whether the subject matter of the claim can be enabled by the reader of ordinary skill, over the width of the claim and whether it recites in combination those features that do deliver the invention. Why burden yourselves with more than that?
This is who every real patent attorney in the US thinks Max. What you are seeing is judicial activist coming up with witch arguments to create a system where a judge gets to decide if they like the patent. Basically, what it boils down to is a system for the very rich. If the judge sees it is Google, then it will pass muster. If it is a small entity, then the structure arguments will come out.
It is not just patent law. It is the zeitgeist. We are going back to the 1890’s. The people on this blog that present these witch arguments are just tools of the very rich.
If you haven’t figured it out yet Max, we aren’t the country we were 20 years ago. We are gutted. We are one serious recession away from third world status and revolution. I hope Europe holds up. Maybe I can move there again.
And Max, after thinking about what you said I have another perspective.
At the EPO, you are right that the technical character of software is looked whether it improves the functioning of the machine. But, you see the reason the judicial activist in the US can’t use this test is because then they are admitting that software has structure. So, then all the other software comes into eligibility.
So, the judicial activist who have the voice with the Google bucks behind them and Google right there in the Oval office every week and dictating to Obama which judges to appoint to the fed. cir. and which director to appoint as the head of the PTO. That is how powerful Google is.
You see the judicial activist problem? We don’t have the technical test. If the judicial activist were to concede it then they would lose the game. So, they have decided to create these myths about functional claims and structure. The people behind this are smart. That is one of the scary things about modern America. The people behind the curtains are very well educated and very intelligent. They are hard to fight. The good fight and intellectually honestly didn’t win in 1890 either.
And Max, please spend some time to read and understand this 17.3. Because this one is really what is going on.
And also Ned you should ask whether or not these discussions even on this blog are fueled by Google. I think they clearly are. There is little doubt that paid bloggers dominate this blog.
MD: Whether there is enough “structure” is answered simply by enquiring whether the subject matter of the claim can be enabled by the reader of ordinary skill, over the width of the claim and whether it recites in combination those features that do deliver the invention.
Well, if we were talking about non-existent novel “structure” (in quotes), there are all kinds of ways to answer that question and you’ve picked one that is relatively difficult and expensive to answer.
But the real issue is simply recognizing that algorithms are not structure and this fiction was created out of whole cloth by the judiciary without, apparently, any further thought other than “let’s inflate the patent system with junk functionally claimed at the point of novelty — what could go wrong?”. As a result of the ad hoc creation and perpetuation of this fiction, the CAFC and its predecessor court opened a Pandora’s box that directly spawned many of the worst patents and the worst patentees out there. The fiction and its consequences are the underlying reasons for the patent reform laws that are being passed today, and the direct cause for the judicial rollbacks that are taking place and are going to continue to take place (like this).
Why burden yourselves with more than that?
It’s not a “burden” to recognize that there is no novel stucture recited in a typical new information processing “system” claim.
The reason these issues keep coming up, MD, is because of the logical inconsistencies and fallacies at the heart of the jurisprudence or, in the case of the EPO, the statutes themselves.
Thanks for that MM. You say “difficult and expensive” and I’m not going to challenge you on that. If it’s impossibly expensive then another solution is needed, clearly.
I am conscious that since 1978 I have been practising in the civil law environment at the EPO, very different from the adversarial, witness evidence-based environment in the courts of the USA and England. What is inherently very expensive in English litigation is often very much less expensive in a civil law environment. So no-brainer solutions for Munich are perhaps not solutions at all in DC.
Your concern is a “new information processing system claim”. The EPO gets rid of these quite effortlessly, without getting into any debate about how much or how little “structure” is in the claim. Seems to me it ought to be possible, also in the USA. But this is not my specialist field. I would defer to those who draft and prosecute such claims in both the USA and Europe. If they are willing to tell us, what is their experience?
But meanwhile, I’m curious. What are the fallacies you are seeing in the EPC, pray?
“Patent law can, and does, identify an “algorithm” for performing a function as structure for legal purposes in a software claim, but it is importantly only metaphorical structure.”
Metaphorical? These are part of the definition of “structure”.
Definition of STRUCTURE
something arranged in a definite pattern of organization
link to merriam-webster.com
It seems to me that steps of a method or processes are literally (not metaphorically something arranged in a definite pattern of organization. Furthermore, one could just as easily roll ones eyes at recitation of steel components.
What is the difference between recitation of a “screw” and recitation of a “means for helically attaching”? Neither specifies the length of the screw. Neither specifies the diameter of the screw. Neither specifies the number of threads per inch. Neither specifies the material of the screw. Neither specifies the head type (e.g., Philips or the other kind). Neither specifies wood screw or machine screw….Yet no one would allege that recitation of a screw is functional claiming or a nonce word.
Why is that?
something arranged in a definite pattern of organization
What is the definite pattern of organization of a module, device, gadget or doohickey? Tell everyone.
no one would allege that recitation of a screw is functional claiming or a nonce word. Why is that?
The short answer is that the recitation of “a screw” implies a definite, objective structure for a physical object.
Neither specifies the length of the screw. Neither specifies the diameter of the screw. Neither specifies the number of threads per inch. Neither specifies the material of the screw. Neither specifies the head type (e.g., Philips or the other kind). Neither specifies wood screw or machine screw.
Right. And neither specifies whether the screw is painted in zebra-stripes or polka dots. Or whether the screw was obtained from a guy named Bob using a credit card. Or whether the screw was acquired as a prize for winning a bingo game. That’s because all the aspects that “aren’t identified” by the term “screw” are not relevant to the issue of sufficient structure. What is relevant is the structure that is, in fact, identified.
This really isn’t as difficult as you are making it out to be. But I understand why you would want to try to make it difficult.
“That’s because all the aspects that “aren’t identified” by the term “screw” are not relevant to the issue of sufficient structure. What is relevant is the structure that is, in fact, identified.”
The length and diameter of the screw and whether the screw is a wood screw or machine screw, or self-tapping are not relevant to the issue of sufficient structure?
I’m sorry, but you are wrong. If a wood screw is needed, a machine screw will not do. If a 2 inch screw is needed, a 1 inch screw will not do.
These details are far more important than the specific implementation of a digital filter that might be specified as: means for low pass filtering said input signal having a pole at 500Hz.
If a wood screw is needed, a machine screw will not do. If a 2 inch screw is needed, a 1 inch screw will not do.
It’s important to keep in mind that we’re talking about what constitutes sufficient structure in a patent claim, not whether the instructions for assembling a specific kite are “suitable for kids between five and ten years old.”
The point you seem to be ducking around is that “if a screw is needed, a nail won’t do.” And there is an objective structural distinction — not a logical distinction — between the two terms that pretty much all reasonable and articulate adults can describe and understand and agree upon.
Of course, if you believe that the patent system was intended to protect “new logic”, then whether there is a structural distinction being made in the claims or some other kind of distinction might not matter to you. That seems to be what’s going on here, as far as I can tell.
The irony of Malcolm wanting to use “logic” to duck out of the “objective physical structure” counter points of Les is indeed Rich.
“Reasonable” and “articulate” but only what the Red Queen demands those words to mean….
Oh so delicious.
“The point you seem to be ducking around is that “if a screw is needed, a nail won’t do.” And there is an objective structural distinction — not a logical distinction — between the two terms that pretty much all reasonable and articulate adults can describe and understand and agree upon.”
The point you seem to be ducking around is that “if a means for low pass filtering is needed, a means for high pass filtering won’t do.” And there is an objective structural distinction — not a logical distinction — between the two terms that pretty much all reasonable and articulate adults can describe and understand and agree upon.
capice?
Les: there is an objective structural distinction — not a logical distinction — between the two terms
You’re doing quite a bit of goalpost moving here.
Earlier you referred to: a digital filter “means for low pass filtering said input signal having a pole at 500Hz.”
So, tell everyone what the physical, structural distinction is between a digital filter “means” for “low pass filtering said input signal having a pole at 500 Hz” and, say, a digital filter “means” for “low pass filtering said input signal having a pole at 499 Hz.”
I’m not suggesting that there is or isn’t such a distinction. I’m just asking you to tell everyone what the specific, objective structural distinction is between those two digital filters. Obviously you know what it is. So tell us all what it is.
Then we can talk about the specific objective structural distinctions between circuitry that determines when Billy’s credit card was last used and circuitry that determines when Granny last “liked” one of Billy’s awesome Facebook updates. Because it’s all the same, right?
Malcolm,
You are doing quite a bit of something here…
Looks like “flailing,” trying to counter Les’s “objective physical structure” difference with “logic.”
The kind of “flailing” that you would see a duck do.
Quack!
You are the one moving the goal post. The point of this particular sub-thread is that references to clearly physical components can be just as vague and non-specific as “means for” language or alleged “nonce words” and that such vagueness is merely reflecting the breadth of the claim and is not viewed as a crisis or grabing more than the inventor is entitled when it is a vaguely recited screw. So why is it a crisis when it is a vaguely recited means for helically attaching or module or means for low pass filtering?
To answer your question, at first blush, the difference in the filters might be in the value of a resistor or capacitor. On the other hand, resistors and capacitors and filters are not usually designed with the precision your question implies. Indeed, during operation, they are likely to drift more than the precision your question implies would allow. So, if the pole needs to be precisely 499 Hz one might have to use an entirely different filter design than originally intended.
In the digital filter domain, I think what would be different is the ratio of coefficient values in an equation and/or a sampling rate. However, frankly I have forgotten. Again, the precision implied by 499Hz might require a change from integers to longs or even “real” values.
The structural difference between your Billy and Granny circuits is also a difference in values and perhaps the number of values involved.
structural difference between your Billy and Granny circuits is also a difference in values
Complete nonsense, Les.
“Earlier you referred to: a digital filter “means for low pass filtering said input signal having a pole at 500Hz.””
No I didn’t. A means for low pass filtering said input signal having a pole at 500Hz, is not necessarily digital.
Les: “Earlier you referred to: a digital filter “means for low pass filtering said input signal having a pole at 500Hz.””
No I didn’t.
Yes you did. Direct quote from 16.1.1.1: the specific implementation of a digital filter that might be specified as: means for low pass filtering said input signal having a pole at 500Hz
As for this: In the digital filter domain, I think what would be different is the ratio of coefficient values in an equation and/or a sampling rate.
In other words: you can’t identify the objective, specific structural distinction between the two digital filters we’re discussing. That’s not your fault, of course (I knew you couldn’t do it). But it is your fault for pretending that there was a difference in structure and that “skilled” people like you could identify it based on the recited function. This is a common error, by the way, that your friend Night Writer makes all the time. Ultimately it’s a serious issue for you. You can’t wave it away. You can try to wave it away. But it’s going to keep coming back.
Watch and see.
“In other words: you can’t identify the objective, specific structural distinction between the two digital filters we’re discussing. ”
No. That is the structural difference. The arrangement of physical electrons in physical memory locations physically holding those values is physically different. Measurement of those differences is what causes the processor to behave differently and for the processing to be different.
“In other words: you can’t identify the objective, specific structural distinction between the two digital filters we’re discussing. ”
No. Read again please the definition of structure provided in post 16.
Put another way, the point you seem to be ducking around is that “if a screw is needed, a means for helically attaching will do.” And there is no objective structural distinction — nor a logical distinction — between the two terms that pretty much all reasonable and articulate adults can recognize and agree upon.
Les,
Dare I say that you hammered him?
Or would that be too abstract?
anon, another term that come to mind involves the past tense of the verb “shaft.”
the point you seem to be ducking around is that “if a screw is needed, a means for helically attaching will do.”
I’m not ducking around that point at all.
I’m also not ducking around the point that “means for helically attaching” is just a desperate dust-kicking lawyer’s term for “screwing”, nor am I ducking around the point that this thread — and this case — is about functional claims to information processing apparati and methods and has nothing to do with screws or any other structurally descriptive means of attaching two otherwise distinct physical objects.
Malcolm you are all quacked up.
Hey Les, if the law requires structure to have mass, how much does the structure of A * B + C weigh?
Ned,
Tell me again (or more accurately, for yet the first time) about Morse’s “space.”
Now kindly stfu – your pedantic rhetorical tick has had its fifteen minutes.
The Morse apparatus drew marks on a moving paper — long or short — by swiping a pencil or the like across the moving paper at different speeds. Groups of marks were separated by spaces.
These things were physical.
You keep on wanting to talk about something that I am not asking about.
Focus Ned – focus only on the “space.”
What was the structure of the space?
How much did the space weigh?
How many spaces could you fit into a a mailbox?
LOL – how do you like your little game played against you?
Anon,
The “space” in Morse’s patent is a measurable length of paper (or a paper substitute) that lacked the punctures, dots, or marks that recorded the signs being received.
Paper is a well-known structure, with weight, and enough such snippets of non-marked paper will certainly fill a mailbox.
So, Doobie, have you ever thought that the patent system is supposed to try to understand new technologies? That it is your responsibility to put an effort into understanding the new technology.
Every piece of software plus GPC is equivalent to a special purpose computer. That is fact. Do you think chips have no structure?
What is your brain? Does your brain have structure? Information processing takes a machine to process the information. The machine uses space, time, and energy—and must have structure.
Dobu, tell me again about how software earns copyright – but only when fixed in a tangible medium and then compare to the paper of the space.
Then remember that the thought of software is not software
(Bonus: the execution of software is not software either)
So Ned, “physical” is the test and information processing isn’t physical? So, either it takes place in the spirit world or it is physical.
This is so bizarre. I remember in High School reading about medieval thinking and here we are…
Information processing takes space, time, and energy and either has structure or there is magic where it takes place in the spirit world. Maybe you all are right. Maybe there is no physical basis for thought and we actually all exist in the spirit world. I wonder why our brains are there. It is clear that most people on this blog don’t need them.
So, Night, if processing information takes time, energy and space, then claim it for what it is — the use of a computer to process information.
The execution of software is just not the same as the companion of software.
What it is.
Word.
Lol – autocorrect – change “companion” to “component”