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- Dan Breznitz & Michael Murphree: What The U.S. Should Be Doing To Protect Intellectual Property
- Florian Mueller: Nokia-Samsung Patent Deal Is Far From Comprehensive: Litigation Still A Possibility
- Theresa Stadheim: Will Copyright Law Put Us On A Path To International Patent Exhaustion?
Get a Job doing Patent Law
Is there any one on the short list that would bring Alice back to the sane side of the looking glass?
Oy. It’s always cringe-worthy when the CAFC bases a decision (even partially) on an assertion that is plainly false, on its face. The case in question is Synopsis v. Mentor Graphics and the false assertion is the following:
The point of the invention is to enable designers to more easily debug the source code based on testing of the optimized circuits. Developers could not do this if the instrumentation signal were indicative of execution status only some of the time [emphasis added]
In fact, in nearly ever endeavor, some useful information is better than none. The fact that an instrument does not provide the desired information in every instance of operation or as applied to every possible contingency is nevertheless perfectly consistent with a task (e.g., debugging a program) becoming “easier” as a result of the instrument’s use.
Pardon? What part of this is false?
“The point of the invention is to enable designers to more easily debug the source code based on testing of the optimized circuits. Developers could not do this if the instrumentation signal were indicative of execution status only some of the time [emphasis added]”
Its clear that all the court is saying is that Developers could not debug MORE EASILY if the instrumentation signal were indicative of execution status only some of the time.
Pardon? What part of this is false?
The part that isn’t true, as I already explained in detail in my original comment.
all the court is saying
I know exactly what the court is saying. Th problem is that “more easily” is a quintessential example of a relative term.
Let me help you with a simple example. I can maneuver my car “more easily” through an obstacle course on a downhill slope with brakes that only work half the time versus having no breaks at all. Pretty simple concept.
“Let me help you with a simple example. I can maneuver my car “more easily” through an obstacle course on a downhill slope with brakes that only work half the time versus having no breaks at all. Pretty simple concept.”
Yup. and the assertion is true too. So again I ask you the simple question, where is the falsehood?
Why is there a problem with a relative term? Do you not understand what more easily means? Do you not understand that more easily is relative to without the invention (all other things being equal)?
Les: where is the falsehood?
As you appear to admit, Les, developers can debug “more easily” “relative to without the invention” using a process that doesn’t find every error.
The falsehood is the CAFC’s assertion to the contrary (i.e., “Developers could not do this if the instrumentation signal were indicative of execution status only some of the time”).
I think that you have taken that out of context and tried to make it an “all or nothing” thing instead of it being an improvement type patent thing.
But that’s just a surface read here based on the words you have chosen to call a false assertion in your immediate post at 13 above – which, as Les points out, is not false at all) – fair notice: I have not read the case itself, so I am commenting on your post 13 directly. If you meant to say something else at 13, that might be a different story, but this one (at 13) is just not correct.
“As you appear to admit, Les, developers can debug “more easily” “relative to without the invention” using a process that doesn’t find every error.”
I have admitted no such think.
I explained that the exact opposite is the case. The invention allows debugging to be performed more easily.
Martain said, in discussing his vision of a better world:
“If your claim’s result is information that is useful without human consumption, or useful information that is useful prior to human consumption, have at it, so long as the requirements for patentability are met.
The most basic possible definition of “abstract” is information consumed by a person.”
Even if your definition of “Abstract” were correct, that has no bearing on whether a claimed method for correcting Hubble images is an abstract idea and I do not understand why dependent claim that recites displaying the information that depends from an allowable (in your view) claim should not be eligible.
I would also be interested in how you would respond to those who take the word “uesful” in 101 very seriously and would allege that without the displaying the information in memory is not useful and therefore the method is not useful.
The real way to think of this is the brain is just an information processor. Math is nothing but our methods for solving problems. Nothing special about math or physical laws. Not in the least. All of this are heuristics for us to try to build models of the world and manipulate the physical world.
The information processing machines are doing the same thing. All math should be eligible for patentability within the context of a machine. We are building machines that process information that take time, energy, and space. The conservation of information is the most important law of physics.
In Deener a method of processing grain could be performed by a human body, but that did not make the method unpatentable. The fact that a human can perform some of these methods is meaningless (except maybe to 103). The machine is automating the processes.
Plus, the whole notion that information processing machines that interact with and control human behavior should not be eligible is from an ancient ear before information processing machines. Machines that control human behavior should certainly be eligible because they are machines (duh? Ginsburg you science and innovation illiterate fossil with an ego the size of Alaska.)
That is reality. We have a science illiterate judiciary (thanks Obama and Clinton.) We have most of the Fed. Cir. judges appointed by Google. Use your own brain to understand these things. The selection of the Fed. Cir. was purchased by Google. (And Lemley fabricates nonsense. His functional claim paper is a joke. No practical examples, which would illustrate that he has no idea what he is talking about or does and is unethical.)
And the reason math used not to be eligible was because it wasn’t being automated. So, it was a tool only of the information processing brain and not the information processing machines.
“So, it was a tool only of the information processing brain and not the information processing machines.”
Another pleasant night at the Holiday Inn for Mr. Snyder.
Manufactures that are machine components satisfy the category aspect of 101 every bit as do the larger machines themselves.
Your use here of “brain” is nothing but an anthropomorphication, and is known to those Ordinary Persons Having Skill In The Art to NOT be the human brain.
There is a VERY clear distinction that it would be in everyone’s best interest to maintain. I (once again) invite Prof. Crouch to write an article (hint: great teaching moment) to explore this difference and put to rest all of the attempted obfuscations that surround the mental steps aspects in patent law doctrines.
Yes, lets do patent interacting with and controlling human behavior because its managed by a biological information processing machine.
In fact, I don’t know why we need the whole rest of the Constitution when the patent laws would suffice.
Oops – post 12.1.1.1 should go here.
Martin- all I’m getting re:12.0 is crickets.
“I would also be interested in how you would respond to those who take the word “uesful” in 101 very seriously and would allege that without the displaying the information in memory is not useful and therefore the method is not useful”
I think I covered this in another comment, but I’ll do it again.
A sharpened image is intrinsically more useful- just as a sharpened knife is intrinsically more useful. If you have a new, no-obvious, fully described method that sharpens a knife, you don’t need any claim language describing the uses to which the sharpened knife will be put to clear the utility bar.
Well, I’ll buy that. But they wont. They believe the use must be recited in the claim.
US 20080020681 is an example, there are dozens of others.
The utility is intrinsic- without any specific use of the sharpened blade in the claims.
Like I said, I agree with you.
But MM et al. would have a conniption if you tried that with sharpened data left sitting in a draw. Well, Ned et al…. MM would have the conniption just because “do it on a computer,” let alone leaving the resulting data in memory.
People from all sides are going to have to give a little to move the system forward into the information age.
The travesty of what we have now is intolerable, and nothing in the AIA, any proposed reforms I’ve seen, or the current Alice regime is really fixing it.
We have an exception for abstract ideas. Here is a bright line test for abstract ideas that meets the linguistic, statutory, and philosophical purposes of the exception for non-physical inventions that produce nothing but information.
You gotta draw the line somewhere…..
But I disagree.
A method for sharpening a Hubble image that is not an abstract idea does not become an abstract idea because someone looks at the resulting image.
This ain’t quantum physics and you ain’t Heisenberg. The act of observing the output does not make the method abstract.
If the act of looking at the image is an infringement, no dice. That act is exactly what makes is abstract.
Sharpen away- so long as you don’t claim human consumption of information as the result of your method.
The claim wouldn’t end with “looking at the picture”
It would end with something like: displaying the image or printing the image….
even if the claim ended with looking at the image, looking alone wouldn’t be infringement, sharpening according to the claim combined with looking would infringe.
looking is not abstract, not any more than stirring, heating or cooling.
Les I couldn’t disagree more with this:
“looking is not abstract, not any more than stirring, heating or cooling”.
If “abstract” has any meaning at all, its what happens when a person looks at an image. You see one thing, I see another, it happens in the mind, and never can we see the same thing.
“If “abstract” has any meaning at all, its what happens when a person looks at an image. You see one thing, I see another, it happens in the mind, and never can we see the same thing.”
Then why post here? Why post a picture? How can you hope to convince anyone of anything if you have no idea what they see when you present them with information?
Martin what? What has the Constitution do with the patents for controlling human behavior with machines? Martin, start from the simple. Elements A, B, and C. Use patent law not witch law.
Do you understand that Alice is based on a finding of fact by the SCOTUS?
Les,
The clear distinction is whether or not the step involving some “human consumption” is integrated into the claim or is merely an aggregated element.
Our Holiday Inn guest just does not realize that claim elements of the type that involve human interaction (even human interaction “of the mind,” are perfectly allowable under the law as written by Congress under the Claim as a Whole doctrine (when there is no “goalpost moving” and attempt to move a claim that is NOT totally in the mind into a claim that IS totally in the mind.
As has been demonstrated with claims that are mere aggregations that have NO such elements, such claims ALREADY f a i l; and it is only the most mundane takeaway to stretch this concept to include claims with elements of [new thought] and pretend that it is the element of [new thought] that drives the doctrine (hint: it is not).
And we do not even have to get into the purposeful obfuscation of some who want to twist what is clearly (to a Person Having Ordinary Skill In The Art) a machine or manufacture attribute into some type of human being attribute (my favorite word: anthropomorphication). A blog interested in inte11ectual honesty and true dialogue simply would not put up with those types of shenanigans.
1) I doubt that anthropomorphication is your favorite word.
2) anthropomorphication is possible in real-life and more possible in more ways daily
3) I deal with aggregation in the paper- steps toward the result that happen in the mind are just fine- expected even- but if the construed result of the method is information, and the consumption by a person of that information comprises the infringement, its not eligible.
4) The self-trained have moved the world in the past. I believe the Wright Brothers stayed at the Holiday Inn too- and Abe Lincoln. And Steve Jobs. And many many others. Its a venerable institution.
1) your doubt is completely immaterial.
2) you are showing that you are not understanding the meaning of the word and the very real difference between human brain and machine brain and that difference as it plays out in the realm of law (once again, your lack of Sun Tzu is showing)
3) sorry, I haven’t bothered wading into the paper after finding 20+ mistakes in the Abstract (and I note that you STILL haven’t answered my follow-up questions to you about your paper. I would suggest that you answer those questions before you try to use that paper as an type of response here).
4) Nothing at all wrong with self-trained. You are slipping into your logical fallacy that such is somehow what I am against. Let me be perfectly clear: I am NOT against those who are self trained. I am against those who ar self-trained and hold onto delusions because they are attempting to fit the training into their PRECONCEIVED notions and desired ends. There is a WORLD of difference between these two views. You are NOT anywhere close to being a Wright Brothers or Abe Lincoln. And while such may indeed have stayed at the (equivalent) of the “venerable institution” of the Holiday Inn, the meaning of that phrase is decidedly different and not up to you to reset.
Try again.
“try again” bwahhhaa
OK boss. You are wrong, I am Abe Lincoln reincarnated as the Wright Brothers reincarnated as Martin Snyder, placed on this Earth to illustrate the circular “reasoning”, cascading pedantry, and all around unpleasantness of a self-appointed website policeperson who believes that Sun Tzu offers insight to the state of the art in artificial intelligence, and who won’t read proffered arguments unless satisfied that the provenance of the ideas accord with his (her?) bizarrely inflated estimation of his (her?) own eminence.
IOW, Karma is a B*^ch.
Happy now? Or should I try again?
“OK boss. You are wrong”
Except that I am not. And this has nothing to do with any estimation of my own eminence. Eppur si muove.
Try again (and try better).
(and you are absolutely F A I L ing at your job of “illustrating anything that you accusing anybody of)
– the references to Sun Tzu have had NOTHING to do with the state of the art in artificial intelligence – but rather your “views” on the law. Wake up son.
Below we tried to have a real discussion about patent law, but MM wasn’t happy with it so he spammed us. Rinse. Repeat.
LOL – not only that, but when Malcolm’s attempted spam is engaged, he refuses to even bother attempting a conversation on the merits.
This is nothing new.
Happy Decade of Decadence.
Below I asked: “Can you create the problem and simultaneously patent the method of fixing it?”
and “anon” replied: Sure
Assuming that you can obtain the patent, can you then enforce the patent against people who are fixing the problem you created?
I kinda doubt that.
You “kinda” parsed my answer there.
You “kinda” parsed my answer there.
If you are having second thoughts about your answer, feel free to retract.
Not having second thoughts at all, and there is ZERO need for any retraction from me.
Better idea: Maybe you want to try less spin…?
“anon” Not having second thoughts at all
Awesome. Maybe you can answer the question I asked about enforceability then. When you answer, try to think about some hypothetical scenarios that might be presented to you should your answer appear to be one of those reflexive thoughtless ones that sometimes drivel out.
Asked and answered.
You try too hard to parse, and you miss these things..
There is no “problem” that Apple created. They store fingerprint data in their button. If the phone is stolen, someone can replace the button and get access to all of your data and use your credit card. Apple wants to prevent that.
And why are we discussing a patent that doesn’t exist?
I realize you’re anti-“anyone who makes anything with processors”, but this is a bit extreme even for you.
PB: There is no “problem” that Apple created.
My question isn’t about Apple. It’s a general question — hence the lack of any reference to Apple in my question.
PB: why are we discussing a patent that doesn’t exist?
ROTFLMAO
Another one for the files.
^^^ there is that sign of cognitive dissonance yet again. What a swell ec(h)osystem.
Are you seriously asking if an oil company could patent a method of cleaning up an oil spill? Of course then can. Who else has the resources and motivation to develop such a method?
Are you seriously asking if a space company could patent a method jettisoning astronauts from a malfunctioning rocketship? Of course then can. Who else has the resources and motivation to develop such a method?
Are you seriously asking if a aerospace company could patent a method jettisoning fighter pilots from F15 in a flat spin? Of course then can. Who else has the resources and motivation to develop such a method?
Talk to me Goose!
Somehow Malcolm wants to focus on the “creating a problem” aspect as if that nullified the enforceability of a patent on a method of resolving the made problem.
Or maybe, he wants to play Br’er Rabbit and couch his question in ambiguity with the hope of receiving an answer that ALL methods somehow “must be” captured in the patented method, since the holder of that patented method created the issue in the first place.
Clearly, the direct answer of “yes, you can enforce your patent against others engaged in the resolution of the problem” implies that the question is geared to those others using the patented method, and not a different (perhaps patentable in itself, but not necessarily so). And just as clearly, the mere fact of someone trying to solve a problem you created does not necessarily mean that your valid patent covers their efforts.
But either way, the fact that you were the one that created the problem in the first place is absolutely meaningless to the question.
I think that he is perhaps confused with gen eral tort principles of unjust enrichment. There is a different legal issue if one creates a problem and inflicts that problem onto others. That is not a patent law question.
It looks like the k00k00bananas are out in force below:
if Alice is applied to mechanical inventions that they all can be invalided under Alice–if the judge feels like it.
This is completely wrong.
As was predicted and explained years ago, mechanical inventions that are claimed in objective structural terms that distinguish them from the structures in the prior art are immune from eligiblity challenges (absent some other 101 issue that only an incompetent attorney would introduce into the claim). That’s why zero such claims have been found ineligible under Alice.
Les writes: That’s not really the issue.
It absolutely is the issue and Les is a rid0nculous person for suggesting otherwise. The Alice decision is focused on the ineligibility of logical data processing steps in the context of general purpose computers which exist to carry out logical data processing steps.
Can you patent a non-obvious and structurally distinquished computing device? Of course.
So is there a structural difference between two resistors in parallel and two resistors in series? You have never answered this question.
More nonsense from MM: the issue is selective use of Alice. There is nothing in Alice that limits it to a field of use and if it did what would be the basis of that holding?
Sure MM, machines that perform different functions and do some tasks better than you without structure. Sure. The structureless driving machine, for example.
And the claim challenge is still on. Show some claims that need 101 where 102/103/112 just won’t do.
NW There is nothing in Alice that limits it to a field of use
Nobody ever said otherwise.
There are limits on Alice, however, and if you say there aren’t any then you are either on drugs, or ou’re an id i0t, or you’re a l1 ar, or a combination of one of these possibilities.
That’s the nicest way of putting it. Shall we spend a moment contemplating which of these categories you fall into?
I think MM gets like this because he gets bonuses for dominating the discussion on the blog.
He does this because he gets away with it.
The real question is why does he get away with it?
Happy Decade of Decadence.
“that are claimed in objective structural terms ”
Once again Malcolm, you want to pretend that an option under the law is NOT an option, but is the ONLY legally valid claim format.
It.
Just.
Is.
Not.
So.
“anon” you want to pretend that an option under the law is NOT an option, but is the ONLY legally valid claim format.
Nah, I’m just saying that if you think Alice can be used to render ineligible a claim to a non-obvious structurally distinguished machine, then you’re an id i0t.
And if you run around screeching that “everything is ineligible because I can apply Alice like a buff00n” then you’re not only an id i0t but an axx h0le on top of that.
No difference (at all) with your attempted spin here Malcolm.
An option remains just that: an option.
Do you understand the legal significance of that word?
.
You STILL would have that option be the only validly legal format.
As I stated – clearly and with direct and easy to understand words: you are wrong.
“anon” An option remains just that: an option.
The sky is blue and so are you.
Deep, deep stuff.
Did you want to try to make a point there Malcolm?
(hint: you F A I L ed)
Notice too that MM has resorted to name calling. Typical.
He just does not have much else on his short script.
And hasn’t in his entire Decade of Decadence.
😉
“It absolutely is the issue and Les is a rid0nculous person for suggesting otherwise. The Alice decision is focused on the ineligibility of logical data processing steps in the context of general purpose computers which exist to carry out logical data processing steps.”
That may have been what the subject claims were about. It is not what the test promulgated in Alice is about.
If Alice can be applied to new uses of known computers, and if new uses of known computers should not be patent eligible, then what about new uses of known chemical reaction vessels.
All new methods of making new drugs have similar form:
receive inputs (precursor chemicals or elements), process ingredients (e.g. expose to catalyst and/or solvent, heat, stir), output results (filter, precipitate, etc.);
make into pill, capsule, IV, or syrup.
Reaction vessels are just being used for exactly what they were designed for.
Therefore, according to your absurd logic, methods of making new drugs should not be patent eligible.
(…in addition, Les, you can remind Malcolm that software is NOT the execution of software – he does not seem to be able to find that when he reads from his short script)
In 1958, he addressed a problem faced by construction workers and home-repair amateurs alike: how to insert a screw securely into plaster or drywall. He devised a nylon plug with a split tip to be inserted into a drilled hole. As the screw turned, the plug prevented it from dislodging the plaster. As the screw advanced toward the tip, the anchor expanded, pressing tightly against the hole. Two anti-rotation fins on the plug wedged into the plaster, keeping the anchor securely in place.
—
This would also easily be invalidated under Alice and under the 2nd year engineering students can do it in a weekend test (which is akin to a witch test.)
I see that Fischer had more patents than Edison, 1100 as against 1093:
link to en.wikipedia.org
My hunch is that if we were to review them all we would be hard-pressed to find one that could be said to claim an abstract idea. Given how many patents are directed to one or another feature of a trans-luminal expansible stent, I see no difficulty collecting about a thousand patents on this or that constructional feature of a plug to anchor a screw in a substrate.
This “do it in a week-end” test you mention, Night. Does the USPTO use it yet?
Max, you are well aware that the point is that if Alice is applied to mechanical inventions that they all can be invalided under Alice–if the judge feels like it. But, nice try.
The “do it in a week-end” test is not used expressly, but it has influenced the dialogue. As well as a human “could” do it (given one trillion years). And it evinces such an ignorance of innovation that anyone that would embrace this statement is incompetent and should be removed from any responsibility they have regarding innovation.
“we would be hard-pressed to find one that could be said to claim an abstract idea.”
Beyond ludicrous.
Unclench those eyes MaxDrei. Have a mind not so closed to understanding.
Max –
What do you suppose were the unexpected results associated with the dry wall screw thingy?
Show us one hardware patent tossed under Alice- as in, new hardware- not taking a bunch of existing hardware and “configuring” it to do something….
Crickets?
That’s not really the issue. The issue is, if Alice is appropriate, it should be appropriate across the board. And by the way, all hardware inventions are made of existing hardware configured to do something. The cotton gin was made of a box, a comb, a hopper and a crank handle configured to do something.