by Dennis Crouch
Following Bilski, Prof. Rob Merges and I published a paper titled “Operating Efficiently Post-Bilski by Ordering Patent Doctrine Decision-Making” arguing, inter alia, that eligibility decisions are largely out of the normal bailiwick of PTO examiners. As imagined by the Supreme Court, the eligibility doctrine really became too philosophical and policy based to be administrable. Alice and Mayo were subsequently released and did not help the situation. Under Dir. Lee, the USPTO did figure out a way to administer the test — by not following the test set-out by the Supreme Court. Rather than looking for abstract ideas and laws of nature as imagined by the Supreme Court, examiners are guided to look specifically only for concepts that the courts have already identified as problematic. Of course, as the number of court cases finding ineligible subject matter rises, the PTO’s approach has necessarily expanded as well.
The administration concern is one factor behind the IPO’s newly proposed legislative change to 35 U.S.C. 101. For the IPO, though, the larger issue though is “revers[ing] the recent Supreme Court rulings and restore the scope of subject matter eligibility to that intended by Congress in the passage of the Patent Act of 1952.”
In a newly published whitepaper, the IPO explains its proposed legislative amendment. [PDF: 20170207_ipo-101-tf-proposed-amendments-and-report]
Following an explanation rejected by the Supreme Court in its eligibility doctrine, IPO explains that the traditional subject matter exceptions including abstract ideas and laws of nature were part of the pre-1952 “invention” requirement. That requirement was eliminated in the 1952 Act in a way that, according to the IPO, should have opened the door to broad subject matter jurisprudence. As the organization sees it, the Supreme Court began to go off track in the 1970s – a path revived in recent years.
With this avenue of legal argument rejected by the courts, the IPO sees itself forced to appeal to Congress for a more direct statement of broad subject matter eligibility.
The IPO’s proposed amendment is as follows:
101 Inventions patentable.101(a) ELIGIBLE SUBJECT MATTER: Whoever invents or discovers, and claims as an invention, any
new anduseful process, machine, manufacture,orcomposition of matter, or anynew anduseful improvement thereto, shall be entitled tothereof, may obtaina patent for a claimed invention thereoftherefor, subject only to the exceptions, conditions, and requirements set forth in this Titleof this title.101(b) SOLE EXCEPTION TO SUBJECT MATTER ELIGIBILITY: A claimed invention is ineligible under subsection (a) if and only if the claimed invention as a whole, as understood by a person having ordinary skill in the art to which the claimed invention pertains, exists in nature independently of and prior to any human activity, or exists solely in the human mind.
101(c) SOLE ELIGIBILITY STANDARD: The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this Title, the manner in which the claimed invention was made or discovered, or the claimed invention’s inventive concept.
In describing the 101(a) amendment, the IPO explains that, in the amended structure “utility [is] the sole basis of eligibility.” The requirement that the entitlement to a patent is “subject only to the exceptions and conditions set forth in this Title” is, according to the IPO, intended “to foreclose the development of any future ‘judicial exceptions” to section 101.” and to recognize that the “only exceptions to the entitlement to a patent … are those defined in the statute.” The IPO statement does not consider the impact of other already-existing non-statutory exceptions such as double-patenting, but presumably those will disappear unless a sufficient statutory hook is found.
Proposed 102(b) includes a very narrow exception to eligibility. I would suggest that there is almost nothing on earth that provably “exists in nature independently of and prior to any human activity” leaving the only actual exception that the invention “exists solely in the human mind.” On this second exception, IPO writes:
This ineligibility criterion … makes eligible any claim limitation that requires some external involvement with the physical world or any representation thereof (e.g., data in a computer).
. . . [However] ideas that do not have physical or tangible aspects . . . are not patentable.
The IPO does not indicate whether the exception would be triggered if a single embodiment of the invention could conceivably exist solely in a human mind. I expect that it would.
According to the IPO, 101(c) is designed to ensure that eligibility is not determined based upon the novelty, obviousness, or definiteness of a patent claim. I would suggest that the language does not quite achieve the purpose suggested. A more effective revision might state instead that “eligibility of a claimed invention. . . shall be determined without regard to its novelty, obviousness, or definiteness, or lack thereof.”
I compliment the IPO on taking this major step and beginning a conversation on legislative fixes to the eligibility doctrine.
I agree with the IPO members that the current situation is quite problematic both because the lines are so unclear and because they are ruling-out many inventions that should qualify in my conception. That said, I believe that the provision likely goes too far. I would suggest that the proposal take at least two further steps: (1) include a third exception to eligibility derived from the printed matter doctrine; and (2) include a new 102(d) that expressly defines the scope of the utility doctrine so that it becomes clear what work will be going on there. It should be clear from the statute that ordinary works of authorship, for instance, are not patent eligible.
Flashback to 6+ years ago in the run-up to the Supremes decision in Prometheus. This is the entertaining comment thread shortly after Kevin Noonan admitted that he favors the patenting of (i.e., the granting of private exclusive rights to) medically relevant information because otherwise (he claims) people won’t ever disclose it (never mind that people disclose medically relevant information all the time and have done so since forever). And then he spins round and round and round as the basic issues are presented to him over and over again in the simplest terms, refusing to address them squarely.
link to patentdocs.org
Nothing. Has. Changed.
The maximalists have no interest in discussing the issues, regardless of how disturbing they are to other patent attorneys or the public generally. They just want their patents, and they want their money, and they want it now. Nothing and nobody else matters to them. Never has, never will.
“The maximalists”
You are doing that “one bucket” thing again…
MM, the only member of the USSC with any passion for patent law (and its problems) is Breyer. He ain’t getting any younger. Virtually all of the other justices tend to vote big business and whatever position the SG may take in non-media sensation cases.
My first preference is for information and logic to be fully excised, but I don’t think that is politically possible because too many people simply cannot separate computers from computing and discovery from invention.
As to your critique of my proposed compromise: In addition, any credible distinction between “info for human consumption” and “info for machine consumption” dissolves in the modern world where we use computers (which are machines) as proxies for our own information consumption. Why should it make a difference if the information generated by some application of logic to data ends up outputted directly to me or outputted to my robot? The logic is identical. Why should it be eligible in the former case but not the latter? Makes no sense
It makes sense when you consider the kinds of acts that would lead to infringement and the elimination of many “do it on a computer” claims and business method claims. Additionally, the focus and purposeful confusion/dust kicking about “improving computers” would be much more difficult because the focus would more directed to the utility/purposes of the machine consuming the information, which can never be abstract because you need a human mind to host an abstraction. The value of some given quanta of information is the same for every machine that uses it, while it’s different for every human being.
It would be easier to identify a PHOSITA rather than the surreal parade of computer experts who know nothing about stock trading or arranging retail products or any of the million other “do it on a computer” claims. It would be somewhat easier to examine, again because the focus would be on the genre of the machine consuming the data rather than vast swaths of human activity.
As to the fact that we lack the feeblest bit of infrastructure or a legal framework in place that coherently distinguishes between, e.g., “obvious” and “non-obvious” math and logic in view of the prior art, the politics are ugly and getting uglier.
When allegedly serious people propose that common sense must not be part of a legal analysis, we have gone over the mountain and far, far out to sea. At least machines will have some patent footprint larger than the endless variations of never patented (or published) human activity.
The CAFC and USSC are going to need SOME doctrine. Absolute purity ain’t gonna get it done. The age is not a rational one, as you can see on the Tee Vee. A working political compromise means people have to give ground- I would rather not, but sometimes you must.
Maybe instead – try understanding law, the history of the law, and the facts surrounding that history of the law…
Jumping to a “let’s just compromise” when such compromise is not warranted is a bit Chamberlain like… (the epitome of BAD politics)
You can’t even be right about Chamberlain. Every serious historian understands that Munich was a popular disaster but a strategic necessity in order for Britain to rearm before the inevitable conflict with Hitler.
I suggest you keep sticking to what you don’t know rather than venturing even farther afield.
And PS, your history of law is a history of politics. They can’t be separated.
“ Every serious historian understands that Munich was a popular disaster but a strategic necessity in order for Britain to rearm before the inevitable conflict with Hitler.”
That is simply untrue – there was more than merely “Britain rearming” as you quite miss the historical context and what the name Chamberlain and appeasement actually mean – in the historical sense.
You do tend to glom onto weird views that merely reflect how you think the world should be, ever clenching tight your eyes to how the world actually is.
The irony of Mr. “All Your Politicians Is The Same So Leave Emper0r Tangerine Alone!” complaining about the “appeasement” of cwazy authoritarian types is noted.
Great – except for the fact that I am not a Trump fan…
Oopsie for you and your One Bucket tendencies…
The IPO has just published its revisions to 103:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Common sense shall not be used or references in any part of the analysis of the claim. Under no circumstances will any element in the claim be deemed to be non-limiting for any reason. Individual claim elements, whether or not disclosed by the prior art, shall never be discussed or analyzed separately from the other claim elements. The term ‘monopoly’ must never appear in the analysis, also.
These guys are really sharp! Best. Patent. System. Ever.
MM, it appears that the IPO has been taken over by radical reactionaries. It is unbelievable what they are proposing.
I have a flavor of what went on in ’52 when the Bar, lead by the very unhappy and pissed off G. S. Rich, went on a rampage, using the opportunity of code consolidation offered by Congress to overturned as many of the Supreme Court cases as they could, cases that had restrained growing abuses by patent attorneys and by patent owners in so, so many areas.
We know what happened later when this firebrand reactionary made it to the court. He set about transforming the whole patent system.
History seems to repeating itself.
You might not agree here, Malcolm, but you are now a conservative.
“History seems to repeating itself.”
From someone truly bent on trying to negate the history (of the Act of 1952), your statement Ned, is rather duplicitous.
MM, it appears that the IPO has been taken over by radical reactionaries. It is unbelievable what they are proposing.
Awesome!
Your 570 nm journalism is showing there, Prof.
Dennis writes, For the IPO, though, the larger issue though is “revers[ing] the recent Supreme Court rulings and restore the scope of subject matter eligibility to that intended by Congress in the passage of the Patent Act of 1952.”
“Who controls the past controls the future. Who controls the present controls the past.” — O’Brien in 1984
Thankfully the IPO controls less and less with each passing minute.
And now it’s quickly becoming the laughing stock of the IP community.
Your feelings are noted, Malcolm.
Ned, your (continued) avoidance of what actually happened in 1952 is also noted.
David @ 16.1.1.1.1.2.1, by way of background, I am a principal/founder of a software firm that has provided complex business software for over 20 years, to thousands of customers. In addition, I am the compliance officer of a rather less sizable/illustrious (!) firm than Cantor, so I can somewhat appreciate the depth of understanding of the financial services industry that the GC for a firm like Cantor must possess. Also, to be sure, I’m not a lawyer and your skills in written advocacy likely dwarf mine, but I’ll give this a shot.
To credit Cantor’s resurgence after the filthy attack to the patents rather than the brand strains believability past the breaking point. It surely is believable that your CEO put great faith and stock on those patents: a patent in hand is a formidable weapon of economic power. Steve Jobs famously took comfort in his patent’s power to intimidate (and perhaps even empower him in a totemistic way).
In its way, your observations of yours get toward the core of this problem. It’s a political problem. Politics is how we allocate resources and privileges and obligations, and as such, politics is infused with humanity’s drives and perceptions and shibboleths. Our Judiciary is the means we use to enforce some degree of fairness and predictability to tame these wild forces. A great deal of discussion on Subject Matter Eligibility comes down to ideological, or even religious belief in the role of patents.
For example, lots and lots of things require engineering talent to develop, capital to implement and deploy, and gave (us) a competitive advantage. The same can be said of building a new cruise ship or copper mine- but those things may be entirely conventional activity not worthy of patenting. What is worthy of patenting most often turns on concepts of obviousness- which is why this portion of dicta from KSR is, to me, is some of the most powerful language on Subject Matter Eligibility that the court has produced:
“We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8. These premises led to the bar on patents claiming obvious subject matter established in Hotchkiss and codified in §103. Application of the bar must not be confined within a test or formulation too constrained to serve its purpose”.
When you write that These “compute a result and display it on a screen to improve accuracy of a stock trader” inventions are really important in making the American financial system work. Nobody wins when a broker goofs and trades a couple hundred million dollars of the wrong stock. Why is that patent any less deserving of patent protection than any other computer-implemented invention? , my answer is because there is no real invention there, and there is no fair way of valuing the utility of the putative invention.
The knowledge of the trading techniques existed in the minds of Cantor’s skilled traders, and the technology to computerize that knowledge existed in the minds of the designers of the computer equipment and the operating/display systems of the underlying software. Appling known techniques with known equipment, even when well-executed and somewhat clever is exactly what “ordinary innovation” means. My company does it every day.
Beyond the lack of invention, the human use of that information is entirely variable. Some users of that trading software will find zero value, or even negative value, in the way it operates. Some will love it, and credit the software with much of their trading success. Some will buy a trading platform software on the basis of that one feature, others would pay to have the feature disabled. Like books, movies, and the fine arts in general, when software is a human experience, there is literally no accounting for taste. For a just patent system, there must be some basis of fair, repeatable accounting.
That’s why I draw this firm line at human consumption of information, which also manages to be the most exacting definition of “abstraction” available. We can’t get away from abstraction, and I don’t even know if the Supreme Court would allow it no matter what monkeying is done to Section 101.
Let me address also your rather glib answer to my question about MPEG patents. You wrote that If it’s claimed as “nothing but information” then its ineligible, but if, as most MPEG patents do, the invention is claimed as a process that massages information in a nontransitory memory of a computer, then it’s a “process” or “improvement of a machine.” In that case, it would be erroneous to characterize it as “nothing but information.”
The machine is improved not a whit. It’s the same machine the designers built, and it does exactly what they built it to do. Changing signals within the unchanging physical structure of the memory subsystem is a silly dodge to lend some notion of physicality that has nothing to do with what is actually happening with MPEG compression.
Yes it is a process. I believe it’s an eligible process because the information result of running the process is consumed by the machine to render a video. Just as the content of that video is not subject matter for patenting, anything else that is displayed by that machine for human use should not be either. But the process is comprised entirely of information, to be processed by a machine designed exactly to process it.
Furthermore, I don’t see an MPEG standard as ordinary innovation. People have to work it out, and many other people have to agree to use it and apply it to their code, and even though there is no flash of genius or unexpected result, it’s not obvious in the sense that anyone would ever spontaneously design a complete compression algorithm exactly the same way as anyone else. , When large numbers of people agree to adhere to a useful standard, that’s not an ordinary accomplishment.
Copyright and Trade Secret are the appropriate forms of IP protection for information consumed by human beings, and patents are the appropriate form for information consumed by machines. Nothing I have seen in the past decade or any other argument presented has even slightly convinced me otherwise. So please, go ahead and tell me why it can’t work.
MS: patents are the appropriate form for information consumed by machines. Nothing I have seen in the past decade or any other argument presented has even slightly convinced me otherwise. So please, go ahead and tell me why it can’t work.
One easy answer is that it won’t “work” for the same reason that the system doesn’t “work” now: there isn’t even the feeblest bit of infrastructure or a legal framework in place that coherently distinguishes between, e.g., “obvious” and “non-obvious” math and logic in view of the prior art. In addition, these are structureless things. That’s why the courts and the PTO have resorted to absurd legal fictions about the sufficiency of fake “algorithmic structure” in order to have some kind of foundation on top of which to build the existing (and collapsing) house of cards.
Also, you answered your own question to some extent when you wrote:
[T]he technology to computerize [logical processing of stock trading information] existed in the minds of the designers of the computer equipment and the operating/display systems of the underlying software.
That’s always going to be the case. The machines do what they are told to do by people who sit around and think about stuff to tell the machines what to do. In addition, any credible distinction between “info for human consumption” and “info for machine consumption” dissolves in the modern world where we use computers (which are machines) as proxies for our own information consumption. Why should it make a difference if the information generated by some application of logic to data ends up outputted directly to me or outputted to my robot? The logic is identical. Why should it be eligible in the former case but not the latter? Makes no sense. I don’t expect these arguments (just one of many, by the way) to “convince” you, Martin, but they do need to be addressed by you and (ideally) should be expressly addressed in any statutory language you propose.
You are absolutely correct about one thing, however: this is all about politics. Specifically, it’s about industrial policy. And that further begs the question why anybody — especially now — should be paying serious attention to the maximalist positions of patent attorneys who are transparently obsessed with protecting information and logic.
If we want to promote, e.g., better manufacturing jobs and better infrastructure then let’s encourage investment in those areas and away from this “shove an ad in your face” g@r bage that Underweiser and Sachs specialize in. Let’s keep patents focused on tangible and physically transformative innovations, e.g., innovations that are structurally defined and distinguished from the prior art in objective physical terms.
On the other hand, if the goal is to creat jobs for techn0logically ign 0rant patent agents (e.g., “social engineers”, “banking engineers”) and expand the PTO into a magnificently bloated Federal agency filled with psychologists and accountants dedicated to servicing those patent agents, then, sure, let’s bring back State Street. Maybe the public would like to have some input on that.
As to “information and logic,” Malcolm, how goes your copyright efforts on such?
Yeah, thought so.
What a chump.
You forgot to mention your rather emotionally scarring patent lawsuit experience Mr. Snyder.
That is no a small oversight, given your extreme bias.
Which experience? I’ve had several. It’s a privilege to lose large sums of money; the education was excellent, although overpriced. Your own weakness is telling when you can’t help but to attack the messenger rather than the message. Someone else in the news quite a bit is fond of that tactic…..
Lol – several?
I was only aware of the one that sent you over the edge.
The one in which you thought that since you invented first (but did not bother to share), and that somehow you were “immune” to a later inventor that DID bother to share.
Read the docket, its publicly available. You are wrong on every point, as usual.
I have read your contributions to the various discussion groups – maybe you should read that and see that what YOU have presented very much makes my views about you quite correct.
If you are not representing what actually happened on the docket (S?), then that is most definitely a YOU problem.
Greg DeL: I gather that not everyone knows what a “reach through” claim is. This is a claim where you claim anything that achieves a given result, even technologies that have not yet been invented. In other words, you try to “reach through” your claim into the future, to claim technologies that nobody (including you) has yet invented. This sort of claim is usually noncompliant with the written description requirement
In fact, the sort of claim you describe sails through the PTO by the reams, every week. It’s called functional claiming at the point of novelty and it’s how pretty much every ‘do it on a computer’ claim is written. Are those claims limited to “only” every operating system in existence at the time of filing? I’ve never heard that suggested. Maybe the answer is that writing instructions for instructable-computers isn’t “technology” (oh noes! I touched the third rail again).
The quoted comment was raised in the context of a discussion about a type of claim that sails right through Underweiser and Sachs’ offensive, absurd and d.o.a. effort to make State Street the law of the land. Specifically, the exemplary claim is:
“A method of monitoring [insert name of a newly discovered asteroid] with any human-developed technology.”
Note that the point of novelty is not the “human developed technology.” The point of novelty is this very particularly claimed new asteroid. And presumably one skilled in the art would understand what “human developed technology” is. And the issue doesn’t go away just because we throw the term “computer-controlled telescope” into the claim.
As I’ve already mentioned, the game played by the maximalists is to pretend that the other statutes will somehow “take care” of claims like this that sail through the revised subject matter eligibility statute. For instance, David Boundy popped up to assert that monitoring asteroids isn’t legally “useful”. How does he know this? He doesn’t say. We’re all supposed to trust him, I guess. And we’re all supposed to trust the self-dealers at the IPO. And that, my friends, is a j0 ke.
People like myself have spent years identifying and highlighting the major subject matter eligibility issues that are floating out there. The issues don’t go away because you wave your hand and say “utility takes care of that” or “103 takes care of that” or “112 takes care of that.” Those statutes say nothing about the subject matter eligibility issues in the claim. It goes without saying that the hypocrisy of the patent maximalists telling everyone to rely on judicial activism to fix the holes in this revised statute is breathtaking.
And just so everyone has a sense of where the maximalists are coming from, the same guy who is so sure that monitoring asteroids “isn’t useful” under the statute is pumping the awesomeness of patents that monitor … stock prices.
Yes, these are s00per serious people! They’re all about scientific progress. They’re not wealthy entitled self-dealers trying to funnel more money into their own pockets and the pockets of their rich friends. You can trust them!
?
DC I compliment the IPO … beginning a conversation on legislative fixes to the eligibility doctrine.
LOL
We’ve been having this conversation for years. And somehow the IPO manages to come up with a “revision” that is worse than the current statute.
A complete waste of everyone’s time.
You (of all people) have been having zero conversation for ANY length of time.
Monologuing your feelings day in and day out is NOT conversation.
You just don’t have the chops for any real conversation, as that would entail you to engage in inte11ectual honesty (just not within your “skill” set).
You (of all people) have been having zero conversation for ANY length of time.
That’s interesting because anyone who’s been paying attention can see that the arguments I’ve been making (and I’m not alone) are increasingly understood and accepted by reasonable people everywhere, and not just patent attorneys.
If this amazing time-waster of a proposal doesn’t get instantly chucked in the tr@sh where it belongs and if the proponents of it don’t slink back into their smelly offices and lick their wounds for five years, then rest assured you’re going to hear my views repeated loudly and forcefully by many many many many other groups.
There’s no going back to State Street, ever. Get over it.
LOL – maybe you missed my post regarding the IPO position…
“There’s no going back to State Street, ever. Get over it.”
My position is not – and never has been – based on the State Street case.
As such, there is nothing in your comment for me to “get over.”
On the other hand, my comments are grounded in the actual law – as passed by Congress – it is more than apparent that the one that needs to “get over” something is you.
MM, it was good for Dennis to bring this to our attention for us all to see what the “movers and shakers” are doing. They once again are trying to rig the system to their favor, not trying to fix a grievous error by the Supreme Court where there is a national consensus that the Supreme Court got not only the law wrong, but the policy.
it was good for Dennis to bring this to our attention for us all to see what the “movers and shakers” are doing.
I agree with that. I just don’t understand why he goes out of his way to suggest that these “movers and shakers” have accomplished anything productive.
Dennis could start the exact same conversation (or, more likely, a far better one) by just re-posting the existing statute and saying “What would you add to make this more clear?” I seem to recall that he’s done that sort of thing before.
He did acknowledge some massive gaps in the statute but he did so in such a passive manner that (as is often the case) I couldn’t tell if he was being sarcastic or not.
The two perpetual Windmill Chasers – whining as usual and ig noring history in attempts to reach their desired Ends…
“Go figure Folks”
I think it’s helpful to point out that any discussions about amending 101 are premature. After all, we just had the AIA passed, and we need to wait and see how that shakes out first.
Give it 5 years then make the proposals.
Then again,
Why wait? Do you really think what was passed in the AIA is at all in point to the current discussion?
Yes, because as we all know, many, if not most applications getting hit with 101’s can also be “sunk” under 102/103.
Your reply is non-responsive to the point here, 6.
Just? AIA started kicking in at least as early as 2013. That’s something like 4 years ago. So, we have had your 5 years since passing already.
“So, we have had your 5 years since passing already.”
A mere blinking of the eye in legislative time.
Sorry that should have been quoting your 4 years line.
The 5 years is 5 years beyond today.
5, 10, 15,
Wouldn’t matter – the AIA was not about the topic under discussion here – that’s kind of the point that you are missing from post 18.1.
An easy-to-remember basic fact to keep in mind when you think about subject matter eligibility: information is different.
Information is, of course, ineligible subject matter.
Any claim that concerns information gathering, storage, processing, or communication is going to present an eligibility question of some sort. It might be an easy question. It might be a hard question. But the question is there.
Information-related eligibility issues aren’t the only eligibility issues out there. But they’re important ones. And the fact that this proposed revision doesn’t even begin to coherently address these issues is very strong evidence that the people behind the revision have either no clue what they’re talking about, or they’re hoping nobody will notice, or a bit of both. I’m going with the latter.
MM
Yes indeed.
Except all the laws of physics says that processing information is not different.
MM: over the 11 or 12 years I’ve seen your posts, I have never seen one iota of evidence that information processing inventions are different than other inventions.
LOL We’re talking about patent laws, not laws of physics.
I know: s00per nuanced stuff, way above your paygrade.
I have never seen one iota of evidence that information processing inventions are different than other inventions.
Not that it matters at all what you’ve “seen” or not (because nobody cares what you think about anything) but the case law is brimming over with evidence and it’s all been discussed here, endlessly, for many many years. The “alternate facts” game works marvelously on the ign0 rami. It doesn’t work here, however, because most of us are a zillion times smarter than you.
[shrugs]
Each year you become more of a vulgar dolt, MM.
Night, information processing inventions are not information inventions.
Information processing is tangible and done with physical equipment.
Information inventions are comprised of logic or information itself, which is intangible and exist in the plane of thought or abstraction.
You can argue that configured neurons or logic gates or electrons are physical, but you can also argue that they are quantum states or signals. They are clearly not “things” in the plain and ordinary meaning of the word, and they are not being changed when the signals are changed in any meaningful structural sense.
The patent system has a problem with information inventions, not information processing inventions.
Taking this out of the “totally in the mind realm,” your statement may then become:
“You can argue that configured logic gates or electrons are physical, but you can also argue that they are quantum states or signals. They are clearly not “things” in the plain and ordinary meaning of the word, and they are not being changed when the signals are changed in any meaningful structural sense.”
This statement could not be more incorrect – from a purely factual manner.
By the way, software is not the thought of software.
Try to keep that in mind.
That’s what the categories are for — “process, machine, manufacture, or composition of matter”
Information is none of these. Thus, information standing alone is not eligible. Never has been.
But information, claimed as embodied in “process, machine, manufacture, or composition of matter” can well be an “improvement to” one of the base categories — and thereby eligible in that context.
Does that make it patentable? No. Eligibility is only one step in a journey. All the other requirements are still in effect as well.
That’s what the categories are for — “process, machine, manufacture, or composition of matter” Information is none of these.
If the information is “made” or “produced” by a human, it’s arguably a “manufacture.” That’s not my position but I wouldn’t be surprised to see the opposite position taken by a patent lawyer who believes that patents on useful information would promote progress in the “information engineering” “arts.”
information, claimed as embodied in “process, machine, manufacture, or composition of matter” can well be an “improvement to” one of the base categories — and thereby eligible in that context.
I’m not sure if the Supreme Court would agree. I am 100% certain that pretty much everyone agrees that claims in which the only new element is “new information” are highly highly likely to be ineligble.
Just a few of the extremely low hanging and real-world examples which immediately leap to mind are:
“new” book manufactures distinguished only by information in the book;
“new” computer/display manufactures distinguished from the prior art only by “new” information stored or displayed by the computer/display
“new” book-making processes distinguished from the prior art only by the “new” information or arrangement of information placed into the book
“new” processes for displaying or storing information on a computer distinguished from the prior art only by the “new” content/arrangement of the information
So why beat around the bush? Failing to address this issue head on is a massive catastrophic omission if the gates to eligibility are otherwise being opened wide. The IPO should be ashamed of itself.
Eligibility is only one step in a journey. All the other requirements are still in effect as well.
As everyone who’s been paying attention is very much aware, the “other requirements” are pretty much toothless when it comes to “do it on a computer” patents. But maybe you’ll change all that when you force the PTO to start appling the law as rigorously in the logic arts as it does in other art units.
Just kidding: we all know that you’re never going to do anything remotely like that.
Interesting. You said something I agreed with. I wrote to agree with you. You can’t accept that — you have to shift position enough to start a new fight.
You said something I agreed with.
More accurately, I said something that pretty much everybody on earth agrees with: information is ineligible for patenting. This is one of the key starting points for any intelligent conversation about subject matter eligibility, and if there’s going to be a new statute about subject matter eligibility, this feature of any sane patent system need to put front and center.
Now let’s look at who didn’t make this incredibly important point that everybody agrees with. You didn’t make it. Dennis didn’t make it. The IPO didn’t make it. Underweiser and Sachs didn’t make it. I’d be surprised if you can show me where Sachs, e.g., ever said that “information isn’t eligible for patenting.”
And again: this is arguably the most important issue relating to subject matter eligibility.
you have to shift position enough to start a new fight.
This isn’t a “new fight”, David. This is you and Sachs et al. playing the same old shell game that was completely debunked by the Supremes in Prometheus v. Mayo.
We call see what you’re doing. I’ve seen it all, trust me. And no “revision” that doesn’t expressly address these issues is every going to get off the ground. You either learn to address them head on or you’re going to get the horns every time.
How is your copyrights coming along?
What a schmuck.
David, what is an MPEG patent? Nothing but information.
Should it be eligible?
Depends on how its claimed.
If it’s claimed as “nothing but information” then its ineligible.
If, as most MPEG patents do, the invention is claimed as a process that massages information in a nontransitory memory of a computer, then it’s a “process” or “improvement of a machine.” In that case, it would be erroneous to characterize it as “nothing but information.”
the invention is claimed as a process that massages information in a nontransitory memory of a computer, then it’s a “process” or “improvement of a machine.”
Processes aren’t improvements to machines. Processes are processes.
Data compression is an ancient method of information coding that is performed for the purpose of reducing the energy required to transmit a signal or to reduce the space taken up by stored information. Nothing is being “massaged” when information is re-coded, unless perhaps you are communicating some re-coded information to someone by touching them with your fingers. And, yes, that’s also in the prior art.
The concept is as old as human society. All that’s new is the math.
And you have no evidence that patents on data compression algorithms promote better data compression algorithms and you never will because (wait for it) they don’t do that. The PTO is also incapable of examining them.
How is your copyright on math coming along?
(and please spare everyone the banality of trying to move the goalposts to a book of math).
That’s what I thought.
What a schmuck.
“Processes aren’t improvements to machines. Processes are processes.”
…and the execution of software is not software.
Your attempted point is nothing but an obfuscation.
Try again with the patent concept of inherency.
We both know that you refuse to go there – and we both know why.
Dennis writes —
I would suggest that there is almost nothing on earth that provably “exists in nature independently of and prior to any human activity”
I think Dennis jumped to too much conclusion too quickly. All discoveries of pure science remain ineligible.
So —
— the discovery of the BRCA1 gene, as it exists in human tissue, is a “natural phenomenon” and ineligible
— BRCA1 isolated, so that it can be used as a test reagent, study vehicle, etc., exists only after human intervention, and would be eligbible
— taxol, as it exists in parts per million in the tissues of pacific yew trees, is a natural phenomenon, and ineligible
— taxol purified to the degree necessary to use as a chemotherapy drug — eligible (I could go either way on this specific one — maybe taxol is only eligible in a process for administration)
— a process involving metabolism of 6-thoiguanine — eligible, because there’s never been a single molecule of 6-thioguanine in nature
— cells in cord blood that crossed the placenta in utero and encode medical information about the baby — ineligible
— evaluating those cells out of the cord blood to diagnose medical condition in an infant — nature doesn’t do that, so it’s eligible.
— E=mc2 — ineligible
— Uranium fission that releases energy at rate E=Mc2 — 4.5 billion years old, natural, ineligible.
— Fermi’s Chicago Squash Court atomic pile — eligible
I assume that’s the dividing line that IPO was looking for.
Maybe I’m misreading the statute, but it seems that BRCA1 is a human gene and thus, by definition, never existed “independently of and prior to any human activity.” So, patent eligible. Same with human-stem-cell-blood.
I take your point about the ambiguity in the proposed statutory text. The “and prior to any human activity” could be read to mean that a frog that only evolved in the last 4000 years is eligible subject matter, because that is after some human activity (even if the activity had nothing to do with the frog). Perhaps “and prior to” could just go. Maybe it is redundant over “independently of any human activity” for our purposes.
As for BRCA1 “by definition” not existing prior to human activity, here you are wrong. Lots of “human” genes (as in, genes found in human cells) pre-exist humans. I do not know whether BRCA1 is one of them, but this is an empirical question. Not something that can be resolved by recourse to “by definition” tautological reasoning.
There is literally nothing about this statute that isn’t laughably wrong.
Rather than discuss it ad nauseum and pretend that Underweiser and Sachs have achieved anything except embarassing themselves and the patent bar, how about you work on a statute that coherently and expressly closes the door on the junk that pretty much every reasonable person wants out of the patent system?
Dennis and I have already shown the way …