Ex Parte Gutta (BPAI 2009)(Precedential)
In its fourth precedential opinion of 2009, an enlarged panel of the BPAI has created a new test for judging whether a claimed machine (or article of manufacture) that takes advantage of a mathematical algorithm falls within the patentable subject matter requirements of 35 U.S.C. Section 101. The two-part test parallels the Federal Circuit’s Bilski decision that focused on the patentablility of method claims. Of course, Bilski is now pending before the Supreme Court and a decision is expected in the Spring of 2010.
The BPAI’s test for a claimed machine (or article of manufacture) involving a mathematical algorithm asks two questions. If the a claim fails either part of the two-prong inquiry, then the claim is unpatentable as not directed to patent eligible subject matter.
(1) Is the claim limited to a tangible practical application, in which the mathematical algorithm is applied, that results in a real-world use (e.g., “not a mere field-of-use label having no significance”)?
(2) Is the claim limited so as to not encompass substantially all practical applications of the mathematical algorithm either “in all fields” of use of the algorithm or even in “only one field?”
In Gutta, the BPAI applied its new test to find its system claim unpatentable. Gutta’s system claim (claim 14) includes two coupled components — namely a memory and a processor. The claim indicates that the processor is configured to identify a “mean item” whose symbolic value minimizes the variance of a set. On those facts, the BPAI found that the claim failed the first prong by not limiting itself to any “tangible practical application in which the mathematical algorithm is applied that result in a real-world use.” Likewise, the claim failed the second prong because it “encompasses substantially all practical applications” of the algorithm. “That is we are unable to identify any other practical application [of the algorithm] outside of the broadly defined claim.”
Interestingly, the decision was issued in August 2009, but made precedential in December 2009. By then, Gutta had abandoned the application. The patent application (SN 10/014,192) is assigned to Koninklijke Philips Electronics.
Well, Night, I hesitate to comment on any of the rest, but your:
“An information processing method for a human brain is an interesting test case. But, the problem is that at the end of the day it is a policy question.”
I was pleased to read.
Mind you, I’m still disappointed because it hasn’t brought me any further forward.
What would the Ghost of Judge Rich have to say, on that policy question? Or is it unfair of me to ask?
I would like to take the opportunity of this historic 300th comment to thank 6, AI, and NAL. Without your blathering, none of this would have been possible.
I would even go as far as saying that this type of brain is at the root of the problems we face as a nation.
People that are unwilling to engage in a fair argument and yet continue to assert that they are fairly arguing. The root of the mischief that is destroying us. Paulson is another one.
I wish Rich were alive to roast Moore and MM.
Maybe I will begin a new persona. The ghost of Judge Rich.
In other words, MM appears to be a smart guy, but he has an agenda, so he isn’t interested in fair arguments. This makes him a baboon and the type of person we want to avoid in future fed. cir. appointments. I think that MM’s brain functioning is similar to Moore’s. Both are infected with a bias and neither will admit it. The latter has just been much more effective at destroying our system.
And, Max, these types of people are the same ones that have destroyed our financial system. They have agendas that are built into their arguments that serve their needs. Frankly, someone that will use a word like abstract repeatedly and refuse to engage in a discussion of the meaning of the word because it exposes their agenda is, frankly, a very low character indeed.
>>an interesting test case. It is, isn’t it?
An information processing method for a human brain is an interesting test case. But, the problem is that at the end of the day it is a policy question.
And these arguments where words like abstract are used as a smoke screen for policy arguments aren’t very interesting.
Noise, sorry, I don’t understand your question. The subtlety escapes me. I was just curious to know whether a mental act is a “process” within the ambit of 35 USC 101.
I thought the MM process, of the human brain going through some data processing, to decide whether or not to attempt to jump its attendant human body over the crevasse, was an interesting test case. It is, isn’t it?
Where’s this letter you want me to read 6?
MaxDrei,
Did you just use your head to draw a very subtle reference upon Malcolm’s latest strawman to indicate Malcolm’s typical conflation of patent eligibility versus patentability?
MM: you continue to use this word abstract, and yet refuse to define it. This renders you ridiculous.
The human mind is an information processor. Of course, if a information processing method is not tied to a computer, the human mind could infringe. So what? Why does that twist your baboon underwear into a knot? Our human bodies could do many of the physical methods that are tied to machines too. So what? The method in Deener could be done by a person.
What about a method of treatment of mental disorders that doesn’t use drugs, but instead talk therapy with a computer showing images. The transformation is the human brain. Gee, we don’t want to encourage that.
MM, you are as loopy as one legged baboon.
MM postulates:
“A mental method for determining whether a chasm is too great to leap across”
which strikes me immediately as having great educational potential for those Bilski judges, particularly if they have younger family members who find themselves in adventure camp, or having to judge the jumpability of a crevasse on the glacier.
They can readily imagine, under the sun, going through the process/mental act of thinking/computing the jumpability in their head, using the new and inventive algorithm, and then moving their leg muscles, in forward gear or reverse, in accordance with their mental output.
They can readily see that it’s a process invention, new, useful, reduced to a written description, sufficient, enabled, reduced to practice. Made by man and under the sun (specially if shadow lengths play a part in the process). It might be difficult to pursue an infringement action but that’s irrelevant. Is it in compliance with 101. That’s the thing. And they will tell us soon.
Ned: thinking about a problem where nothing physical is ever done is completely abstract.
But such a method can have utility. A mental method for determining whether a chasm is too great to leap across, for example. Doing nothing can be useful.
So it seems we agree. Characterizing something as “useful” or “method” or even a “useful method” is not enough to render it patent eligible under 101. Your previous suggestion to the contrary was, apparently, a mistake or perhaps mere provocation.
And that’s … okay.
“Thinking per se is not useful, but knowing … is”
I like it better that way Ned. At least it is a true statement when said that way, at least in a context different than the instant one.
What about thinking about the depth of an oil well Ned?
“I would suggest the whole claim is abstract and/or not within the useful arts.”
God heals people based on prayers “said” only in your head by “thinking” the prayer, isn’t that useful? Or are you getting all technical on me and trying to say that, gasp, the “useful arts” is a term of art that doesn’t really mean “any art that is useful”?
MM: I did respond to you, but you apparently missed it. Look up two posts from your last one.
Thinking per se is not useful, but knowing the depth of an oil well is. Halliburton was a claim to apparatus that produced that result. The result was a number, a number that meant something very useful. No one that I ever heard discussing Halliburton ever objected to the claim because it used “mathematics,” which it did in part, to calculate the number because the claim involved a host of non trivial apparatus and steps, some of which was new.
Now in the Mayo case, the information about the metabolites was new, but it was derived using a host of old steps. Even so, the information was new and useful. In a sense, the information by itself was abstract, but its physical utility was disclosed. The question then becomes, is it an infringement for the doctor or clinic who orders the test to determine the information for the disclosed purpose an infringer without more, or does the claim also have to claim the use, administering step as well?
But, thinking about a problem where nothing physical is ever done is completely abstract. An example might be a prayer that results in a transfer of grace to one’s soul. Even if the prayer is new and non obvious, I would suggest the whole claim is abstract and/or not within the useful arts.
“Methods of thinking are undoubtedly useful.” Is there more than one method?
Methods of thinking are undoubtedly useful. Does Ned believe that they should be patentable? Speak up, Ned.
Still waiting, Ned.
“The difficulty seems to be with processes — they seem to chained to the specific use disclosed. ”
Not really 🙁
” I am trying to think here if there are any exceptions to this rule.”
Most of the cases on my docket would be.
Ned, stop digging man. You would be embarrassed to say this stuff irl. I know you would. Just stop.
Mooney: Getting back to Ned Heller’s comment: I do not understand why we should deny patentability to anything that has utility.
This is also an absurd fundamentalist position which is why I highlighted it. Methods of thinking are undoubtedly useful. Does Ned believe that they should be patentable? Speak up, Ned. I believe that you have more integrity than Troll Above Law. Now is your chance to prove it.
Posted by: Malcolm Mooney | Jan 10, 2010 at 01:33 PM
Ah, come on now. The “utility” of which I speak is utility as defined by the Constitution. (And by patentability, I am discussion only Section 101.)
What I have been arguing that if something has statutory and constitutional utility that is disclosed, why can we claim it for all uses? We allow such claims for articles of manufacture, compositions of matter, and machines. The difficulty seems to be with processes — they seem to chained to the specific use disclosed. I am trying to think here if there are any exceptions to this rule. But O’Reilly v. Morse seems to stand for the proposition that one cannot broadly claim all ways do doing something divorced from specific machines, articles or compositions disclosed. This is in effect a holding that says that one cannot broadly claim processes that are independent of the the disclosed “use.”
Halliburton elaborated with MPF claims — the broad claims themselves again were the problem. But, MPF claims are in essence process claims claimed as apparatus.
“Typical examiner.”
Everybody knows they ate the extras on the voyage silly.
“Everybody already knows that there were 2x(the number of all species on earth immediately after the landing of Noah’s ark) on Noah’s ark silly.”
Except for those of us who’ve actually read the reference: “Take with you seven pairs of all clean animals, the male and its mate; and a pair of the animals that are not clean, the male and its mate; and seven pairs of the birds of the air also, male and female, to keep their kind alive on the face of all the earth.” Genesis 7:2-3 (NRSV).
Typical examiner.
Quick question, if I review a patent application at 6:00 pm and the sun went down at 5:00 pm then do I have to issue a 101 rejection no matter the subject matter?
During the daytime.
“Excluding aquatic species, right? What about ducks? Did they need to be on the ark, or could they just float and fly? Waterbugs?”
No, yes, yes and yes.
Obviously.
Also, all of the creatures were patentable as they left the ark because Noah claimed to have created them by his own hand and they were under the sun.
“My guess is that Actual Inventor is saying that if speech and/or movement of external body parts are involved then the method is no longer a pure method of thinking.”
And getting back to the subject at hand — eligibility for patent protection under 35 USC 101 — is a claim reciting a series of useful mental steps in addition to one step reciting the movement of an external body part patentable under 101? That appears to be AI’s position but, as usual, he’d rather talk about communists than explain his earlier ramblings.
I’m also waiting for AI to explain why a useful series of mental steps that are consructively reduced to practice aren’t sufficiently “proceduralized” for patentability. He seems to be proposing some new “demonstrable to the Examiner in a personal Interview” test for subject matter eligibility. But I don’t see anything about that in 35 USC 101.
******Everybody already knows that there were 2x(the number of all species on earth immediately after the landing of Noah’s ark) on Noah’s ark silly.*****
Excluding aquatic species, right? What about ducks? Did they need to be on the ark, or could they just float and fly? Waterbugs?
Slightly more seriously, I think the requirement to reduce to practice is related to enablement, not patentable subject matter eligibility. There are certainly many things that one can enable that are not elegible under 101. Objets d’art, par chance?
fish bones wrote: “My guess is that Actual Inventor is saying that if speech and/or movement of external body parts are involved then the method is no longer a pure method of thinking.”
That’s correct. All the true patent professionals understand this. But somehow Malcolm just cant seem to catch on. Well, I tried.
::sigh::
“but usually in response to queries about the number of animals on Noah’s ark. ”
Everybody already knows that there were 2x(the number of all species on earth immediately after the landing of Noah’s ark) on Noah’s ark silly.
AI: Okay, perhaps I am being too technical here
Um, no. That’s not the problem. The problem is that you are being incomprehensible and every time you are asked to explain yourself, you respond with something even more obtuse. Do you remember the last time you did this? When I presented with you with a hypothetical claim and you refused to explain whether it met your imaginary 101 standards? Remember that? This is basically a repeat of that performance of yours. Instead of answering straightforward questions designed to clarify your viewpoints, you rant about communists. What in he11 is up with that? I’ve seen similar behavior before, of course, but usually in response to queries about the number of animals on Noah’s ark. This is merely patent law we’re discussing. I don’t see a reason for your dissembling.
After all, an inventor has to reduce his/her invention to practice in order to receive a patent. Mere dreams, ideas, pure thoughts are not proceduralized
Proceduralized? Is that a legal term? I’m talking about a method of answering an important question in one’s head, by performing a series of mental steps. If I’ve written the steps down and the steps provide the answer in a predictable manner, then surely that is a constructive reduction to practice. It’s also useful to whoever is doing the thinking. Or do you disagree?
My guess is that Actual Inventor is saying that if speech and/or movement of external body parts are involved then the method is no longer a pure method of thinking.
OK, I think I see. So you would say that today it is “technologically impossible to patent” the time machine or the hyperspace drive or the cure for cancer. I think I got it.
should be “demonstrated to an Examiner during an interview”.
And just so you know, a pure method of thinking is divorced of speech and the movement of external body parts.
Oh, so if a claimed method includes speaking or moving an external body part, it is per se patentable? Is that your position now? So methods of thinking are NOT patentable because (according to you) they can’t be demonstrated to an Interview during an interview. But if the method includes speaking or moving an external body part, then it’s patentable subject matter.
Do I understand you correctly?
Posted by: breadcrumbs: Actual Inventor,
With all due respect, those that choose to understand you, already do.
Those that wish to play semantical games, or purposely misunderstand you, will continue to do so, if only to further their agendas.
Other than that, I appreciate the time you take to post and appreciate your acknowledgement of the work of patent professionals.”
Thank you bread crumbs. The true patent professionals that post on this blog have my highest respect and provide a great service to the inventor community.
Malcolm Mooney posing as Fee Fi Fo Fum wrote to himself:
“Gonna have to go with Mooney on this one. There are no technological hurdles preventing patenting a pure method of thinking by a human being. “
Malcolm umm Fee Fi Fo Fum, I know this makes me an enabler of what could be the manifestation of a serious disorder, however its appears the only way to communicate with you at this point. So, how would you reduce to practice a pure method of thinking by a human being?
(And just so you know, a pure method of thinking is divorced of speech and the movement of external body parts. )
Now, go ahead and describe how you would demonstrate your pure method of thinking by a human being to your examiner when called in for an interview.
Actual Inventor,
With all due respect, those that choose to understand you, already do.
Those that wish to play semantical games, or purposely misunderstand you, will continue to do so, if only to further their agendas.
Other than that, I appreciate the time you take to post and appreciate your acknowledgement of the work of patent professionals.
Posted by: broje : AI, it pains me in unspeakable ways to agree with MM, but phrase, “It is technologically impossible to patent …” does not compute.
Okay, perhaps I am being too technical here so let me put it in words anyone can relate too.
I was a very imaginative creative child. And these are some of the actual ideas I had as a child before anyone ever invented them.
The internet/email
Transformers ( yep the toys).
Cruise Control ( for cars )
They were just ideas, fantasies, part of my play and childhood imagination. And even if I had known what a patent was I had no idea how to construct or actually make these ideas operate therefore these mere thoughts, were at the time, technologically impossible for me to patent. After all, an inventor has to reduce his/her invention to practice in order to receive a patent. Mere dreams, ideas, pure thoughts are not proceduralized, and reduced to practice, and therefore not technologically possible to patent.
Now I know you are thinking from a legal POV. And yes, if enough people agree anything can be made legal including patents on mere dreams, ideas, and pure thoughts and such. The rules would have to be changed dramatically though, to make this possible.
And if that happens then we are no longer having a discussion on the application of science and technology but one of new policy and public opinion.
I’ll re-post this to highlight AI’s inability to answer straightforward questions about his own statements (another feature AI shares with fundamentalists of all stripes):
AI: It is technologically impossible to patent a pure method of thinking by a human being.
You mean legally impossible, don’t you?
A patent is just a bunch of words. As far as most of us here are concerned, there are no significant “technological” barriers to creating those words and filing them. There are legal barriers, though.
You are asserting now that a method of answering a query by determining a fact (using one’s eyes and brain) and correlating that fact with an answer (in one or more novel steps, using one’s brain) is an unpatentable method?
Thanks for the admission. Just out of curiosity, where do you find support for that prohibition in 35 USC 101?
AI, I think you were channeling Michael R. Thomas in that last comment.
“The issue I discussed is not whether patents should be granted as a policy matter to information processing methods, but whether informatino processing methods should be eligible for patentability.”
Go read the letter. If you have trouble finding it let me know.
“No I didn’t go to a 3rd tier law school. “kin folk” is all that directed to me? So fast? It took me three years in a full-time program. What? No idea what you are talking about.”
No, I was talking to AI.
AI: “It is technologically impossible to patent a pure method of thinking by a human being. If you deny this than please provide a patent on a method of thinking by a human being.”
Broge: but phrase, “It is technologically impossible to patent …” does not compute.
Such a phrase would confuse me too. Thats why I did not say it. However if you put aside what is legal and illegal for a moment, and stick with science and technology as I suggested you will be able to debate this point just fine. For example….
” I may think as others do that MM is a baboon and his practice of talking with himself using different pseudonyms on this blog is indicative of a mental disorder. ”
Now from a science and technology POV how would you create those “pure thoughts” in a laboratory?
Remember, the technological steps and results would have to be reproducible in a lab anywhere in the world in order to be considered objective testable scientific evidence.
3 years of law school?
“Obviously” you are a slow learner.
Every internet surfer knows that solid knowledge can be acquired about anything and everything in a single googling session.
/sarcasm
6, I wish you would stop being so loopy.
The issue I discussed is not whether patents should be granted as a policy matter to information processing methods, but whether informatino processing methods should be eligible for patentability.
If I have time I’ll take a look at the letter of the famed person whoever that may be, but I’ll bet that famed person wouldn’t say that the Pythagorean theorem is the same as a method to detect an edge.
No I didn’t go to a 3rd tier law school. “kin folk” is all that directed to me? So fast? It took me three years in a full-time program. What? No idea what you are talking about.
“No person of science or engineering worth their salt would agree with Justice Douglas.”
Except all of them, save perhaps you and your self-interested cronies in the law industry. You can even find a nice letter from a famed computing expert over on watchdog. Funny how those who lead the very art you claim has your back feel differently than you. Is it? Very funny indeed.
“Where will you be in May?”
Chillin in the PTO thinking about where to apply to law school?
I wonder, did your kin folk go to a 3rd tier school to graduate so fast? I think it is likely.
Importantly, does he disagree with your nonsensical positions on patents? Have you bothered to discuss them with him? Because I promise that when I do he’ll be having a change of heart. Especially if he has to pay a couple grand to respond.
“It is incredibly hard.”
Funny though it may be, it gets incredibly easier as the hardware improves. FUNNY HOW THAT WORKS, EH?
Fee Fi Fo Fum I smell the blood of a baboon.
AI, it pains me in unspeakable ways to agree with MM, but phrase, “It is technologically impossible to patent …” does not compute.
“AI: It is technologically impossible to patent a pure method of thinking by a human being.
MM: You mean legally impossible, don’t you?”
Gonna have to go with Mooney on this one. There are no technological hurdles preventing patenting a pure method of thinking by a human being. Legal hurdles? Yes. Examiner competency hurdles? Sure.
But anyway now that you and NWPA are back from the airplane lavatory, I should point out that you two make interesting stall-mates. He appears to be arguing in favor of the MOT test (“the point is that we need to separate out methods on machiines from methods that aren’t on a machine”) whereas AI I thought your whole position was counter to this (a person dreaming is abstract, but a person dreaming about methods is not).
By the way, you still haven’t shown why a method is not abstract. You seem to be arguing that a person performing the method is not abstract, therefore the method is not abstract. Even if a person performing a method is not an abstract concept, it does not follow that the method itself is not an abstract concept. I can count to nine on my fingers (lost one back in ‘Nam) but my doing so does not make the number nine itself any less abstract.
AI: It is technologically impossible to patent a pure method of thinking by a human being.
MM: You mean legally impossible, don’t you?
No. Now that your strawman has gone up in a puff of smoke try and deal with the subject in the context of science and technology, as it was originally broached.
MaxDrei : And AI, I’m going to disappoint you, by opening my mouth again.
“You want Europe’s definition of “mental act”. So, which part of “mental act” is for you so unclear that it first has to be defined before you can understand it? Is it “act” or is it “mental”.
Okay, Max, you originally asked, “ Or are you disagreeing with the European exclusion of “mental acts” as patentable matter?”
Since this is a legal question regarding Europe’s Patent Law it is perfectly reasonable for me to ask you to provide the European legal definition of mental acts. How else could I tell you if I agree or disagree with the law you are asking about if you can’t or simply wont define it?
Honestly Max, trying to be a smart arse like MM and 6 does not make you appear smart. It only makes you look like an arse.
Night Writer Patent Attorney: “Best defense is an offence, eh Max. You were invited to justify your position. You declined.”
Thats what Max does as soon as he is faced with the prospect of being in over his head in a debate. Another version of the MM cut and run tactic.
MaxDrei cannot be bothered with thinking NWPA, after all, this is merely fun, and whoever heard of thinking as fun?
Best defense is an offence, eh Max.
You were invited to justify your position. You declined.
I’m invited to recant. I decline. I’m invited to provide my resume. I decline. I’m told the EPO “in general” doesn’t get “it”. From that remark I take it that, every once in a while, the EPO does get it. Except that then, in the very next quasi-sentence, I read “Not in the least”. So, NWPA, I don’t know how bad it really is, in the EPO. Is it that all EPO Examiners more or less don’t get it or is it that a few do but the rest of them absolutely don’t get it, even to the smallest degree? And what about DG3, where the “real” decisions are taken. What’s your experience up there with the Technical Boards of Appeal. I’m assuming that’s where you go, with each of your refused cases, after all, it’s not that slow or expensive, in the overall European scheme of things, to get them to have a look. And if your client says it’s an important case……
Care to enlighten us?
NAL has a good point. It is Justice Stevens saying in the Bilski oral arguments that you just take it to some trained person and have them implement it. Yeah, right.
The largest group of talent the world has ever seen are trying to invent information processing methods to perform tasks that we do. It is incredibly hard.
Really, Max, you should be ashamed of some of your posts. I wonder what your technical background is. My guess is that you have some soft background or that you skated and never really understood physics.
>>Information processing, as such, is neither >>new nor patentable. An old way of computing, >>with new data, is not patentable either.
Exactly. And what these information processing methods are trying to do is the type of work we can do. Just as the machines we have built attempt to do the work that we physically can do.
And, the methods of information processing and the abilities of machines are different just as in the machines we build to do physical labor.
Is it new to detect an edge or a cancer in an x-ray? No. But, a machine that can detect an edge or drive a car is new. And how these information processing methods work is different from how our brains carry out methods to accomplish the same tasks, just as is often the case with physical machines.
And, please, don’t give yourself so much credit. In general, the EPO doesn’t get this. Not in the least.
“An old way of computing, with new data, is not patentable either.”
Let’s nip in the bud the Malcolmism of the cookbook post, the rebuttal Written Matter Doctrine challenge, the Malcolm reply of “what’s that?”, the post of the now age-old you-know-what-it-is-and-here-are-the-posts-proving-it, and the subsequent running from that challenge.
As to your statement, MaxDrei, it is a bit of a red herring, is it not? How do you feel when the “data” changes the way of computing?
How do you feel about the decision in Alappat?
NWPA. Answer: Yes, I have considered it.
But I claim no credit because it’s not just me. I imagine it’s every patent attorney, in every European country, and every Patent Office Examiner, in every European country, and every patents judge, in every European country, that is aware that people are capable of performing physical acts.
What’s that thing squatting on top of your neck? Might it just be a physical embodiment of a “computing means”. Information processing, as such, is neither new nor patentable. An old way of computing, with new data, is not patentable either.
>But the human brain is old, and the way it >thinks is old too. Aside from that, new and >ingenious thoughts (as such), however clever, >ought not to be patentable.
It is good to see intelligent thought about informatino processing methods. Yes, the machines performing information processing methods similar to us. The issue of whether or not a method of thinking for a person can be eligile for patentability is really quite different than whether or not a machine should be eligible for patentability.
Have you ever considered Max that maany of the methods for performing physical acts are acts that we as people could perform? So, we could perform the method claims that are used to claim methods that machines carry out. It used to bother people that machines physically over took people. Now what we see is fear and denial in that machines are over taking people in thinking.
In any case, the point is that we need to separate out methods on machiines from methods that aren’t on a machine. It isn’t sound to categorize them the same.
Good example 6. Pythagorean theorem. So, that isn’t abstract. But, is it the same as an information processing method to detect an edge? You see, Justice Douglas thought they were the same thing. And, that quote from Benson above is Justice Douglas’s very transparent attempt to link algorithm, scientific law, mathematics, and information processing method all under the same category. No person of science or engineering worth their salt would agree with Justice Douglas. Some may think of this as the difference between applied and theoretical math, but information processing science has other ways of looking at the distinction. The important point is that trying to shove all of them into a single category is not sound reasoning.
It is good to see that abstraction is being thought about here. The information processing methods are what are taking us from the iron age to the information processing age. The legal system is kicking and screaming the whole way. Judges just don’t like figuring things out themselves.
What a pity we can’t stay with the text of the Law, rather than debating secondary words like “abstract” or “pre-empt”. I can’t think of anything less “abstract” than a machine, a manufacture or a composition of matter. So, out of the 101 Markush group, that leaves “process”. A machine has means for X-ing, means for Y-ing and means for Z-ing. The counterpart process has the steps of X-ing, Y-ing and Z-ing. If the machine is an intelligent machine, with X-ing means etc, the process it performs (artificial thinking) is probably characterized by the steps of X-ing, Y-ing and Z-ing. I imagine both machine and process would be patentable. Actually, I imagine there are already tons of issued European patents on such stuff, out there already.
But the human brain is old, and the way it thinks is old too. Aside from that, new and ingenious thoughts (as such), however clever, ought not to be patentable.
I’m not the only one who thinks that way. In fact, is there anybody who doesn’t think that way?
blackbeered,
Oh so 18th century.
Oh so wrong when it comes to patent law.
try again.
If I can’t hold it in my hand, ’tis abstract, methinks.
And AI, I’m going to disappoint you, by opening my mouth again.
You want Europe’s definition of “mental act”. So, which part of “mental act” is for you so unclear that it first has to be defined before you can understand it? Is it “act” or is it “mental”.
AI: It is technologically impossible to patent a pure method of thinking by a human being.
You mean legally impossible, don’t you?
A patent is just a bunch of words. As far as most of us here are concerned, there are no significant “technological” barriers to creating those words and filing them. There are legal barriers, though.
You are asserting now that a method of answering a query by determining a fact (using one’s eyes and brain) and correlating that fact with an answer (in one or more novel steps, using one’s brain) is an unpatentable method?
Thanks for the admission. Just out of curiosity, where do you find support for that prohibition in 35 USC 101?
“Now how long are you planning on being a professional LSAT student? You know during the entire time you have blathered on this blog about studying just to take the entrance exams I have a nephew that has graduated college, been accepted in law school and is graduating with honors this spring. He will have completed it in two and a half years. Where will you be in May?”
He did kind of stick you there, 6. Heh.
(referring to the snark, not the abstract argument)
MaxDrei: AI: I see no point in spending any more of my time in composing a reply to you. It brings me nothing. Sorry to disappoint you.
Max,
I am not disappointed in the least. Actually I am somewhat impressed that unlike your peers MM and 6 you have enough sense to know when to close your mouth, rather to leave it open only to have your foot place therein.
MM: Please recall that AI is a patent fundamentalist who believes that methods of thinking should be patentable.
This is incorrect. I am a proponent of the patent system and a capitalist. And please correct me if I am wrong but I do believe you have never denied being a pro socialist communist sympathizer right? In which case it’s understandable why you are so anti patent in your post on the blog.
MM: There is no “logic” or “reason” to AI’s position.
My position regarding methods, processes, and algorithms not being abstract is based on objective testable scientific evidence which can always be invalidated with reproducible test results. So there is no need for any fundamental beliefs whatsoever. The facts will always be proven or invalidated by the science. And since we are discussing policy and law for scientific and technological applications then such a basis seems to be far more appropriate then your own conjecture based on ad-hominem attacks and outright lies.
MM: Getting back to Ned Heller’s comment: I do not understand why we should deny patentability to anything that has utility. This is also an absurd fundamentalist position which is why I highlighted it. Methods of thinking are undoubtedly useful. Does Ned believe that they should be patentable?
It is technologically impossible to patent a pure method of thinking by a human being. If you deny this than please provide a patent on a method of thinking by a human being.
AI: “Now building on what we know, when human beings engage in abstract thinking there is a high glucose usage by the brain. This can occur when contemplating the meaning of Blake or gazing into the colorful abyss of a French impressionist painting. Day and night dreaming as well as various forms of relaxation awareness are all considered abstract thinking. As I understand the law, such dreams, impressions, and thoughts are not eligible for patent examination. However when such thoughts are applied they require a procedure. So simply adding the word procedure or proceduralized does not take you out of the realm of abstract. Its the physical act of executing the procedure that demonstrates the threshold has been crossed. Now there are several levels for discussing this topic which are behavioral, cognitive, and neurological. At the neurological level the key correlation is the brain glucose metabolic rate. Which provides the most objective and absolute proof that a process, method, and algorithm are not abstract, regardless of whether it is patent eligible subject matter. To make it easy simply remember that no method, process, or algorithm can ever be abstract. Now, which methods, processes or algorithms can be eligible for patent examination is a discussion based on ones personal and political beliefs.
Any further questions?”
6: Do you know how hard I was loling when I read that?
I can imagine as laugher is often an invisible mask for insecurity. And judging by how obviously insecure you are regarding your intelligence, I suspect you were laughing pretty hard.
6: BTW, when are you planning to become a lawyer and argue this nonsense in front of the USSC? I want to sell tickets for spaces in line for that comedy show.
I have no such plans or need. As an “Actual Inventor” and business person I can afford to hire the best and brightest patent litigators in the country should the need arise. And likewise I can hire the most brilliant cognitive scientists and neuroscientists the fields have to offer to consult with my attorneys and provide expert testimony.
Now how long are you planning on being a professional LSAT student? You know during the entire time you have blathered on this blog about studying just to take the entrance exams I have a nephew that has graduated college, been accepted in law school and is graduating with honors this spring. He will have completed it in two and a half years. Where will you be in May?
AI: “Correct. When you know how to apply knowledge it is what cognitive scientists refer to as “proceduralized knowledge” and is no longer abstract thought.
Any questions?”
6: How hard were you loling when you wrote that? And did you realize that you were reciting a difference without a distinction or were you simply telling a bald faced lie?
I stated a fact. Proceduralized knowledge and Proceduralized learning are well researched and established topics in the field of cognitive science.
The learned response would have been to debate the subject on the merit. Or if you lacked the intellectual depth to participate in such a discussion then it would have been prudent to simply remain quiet. Honestly, you should be embarrassed for calling me a liar.
Malcolm thanks for the nothing, which is par for the course (shame on you MaxDrei for feeding the Jaime).
“…more integrity than Troll Above Law.”
From the one that truly has none, you simply would not recognize integrity.
In fact, you are the writer responsible for such notables as T-bagging, copulation with dead presidents, complaining about ad hominym attacks, while you perpetually attack any political or legal belief that doesn’t adhere to your narrow world view, the serious fire code violations due to the abundance of straw you carry around and let’s not forget the skirt and track shoe club and runing away from challenges, pretending that you have no clue to what had been challenged (you know exactly what the Sam Hill I am referring to).
Malcolm thanks for the tip.
AI: I see no point in spending any more of my time in composing a reply to you. It brings me nothing. Sorry to disappoint you.
MaxDrei: AI, I’m struggling. You write: “no method, process, or algorithm can ever be abstract”
Yes, this is a fact when the definition of method, process, or algorithm is based on objective testable scientific evidence, preferably at the neurological level.
MaxDrei: You also write: “Its the physical act of executing the procedure that demonstrates the threshold has been crossed” and I suppose your “threshold” is the 35 USC 101 threshold.
No. At this point I am simply providing the scientific facts and not a legal opinion.
MaxDrei: But 101 says “process” no, and not “physical” process. So, are you then substituting “physical” for “not abstract”, as the 101 test?
No. I am not asserting any 101 test here. My personal opinion is if an inventor creates a new and non obvious method, process, or algorithm or a new use for an existing one, that invention should be eligible for patent examination. This of course excludes the judicial exceptions which I believe include, law of nature, natural phenomenon and abstract thoughts.
MaxDrei: Or are you disagreeing with the European exclusion of “mental acts” as patentable matter?
I am not versed in the laws and procedures of the EPO. So what is the European definition of “mental acts? Once you define it I can tell if it is indeed a scientific fact or not.
“Now building on what we know, when human beings engage in abstract thinking there is a high glucose usage by the brain. This can occur when contemplating the meaning of Blake or gazing into the colorful abyss of a French impressionist painting. Day and night dreaming as well as various forms of relaxation awareness are all considered abstract thinking. As I understand the law, such dreams, impressions, and thoughts are not eligible for patent examination. However when such thoughts are applied they require a procedure. So simply adding the word procedure or proceduralized does not take you out of the realm of abstract. Its the physical act of executing the procedure that demonstrates the threshold has been crossed. Now there are several levels for discussing this topic which are behavioral, cognitive, and neurological. At the neurological level the key correlation is the brain glucose metabolic rate. Which provides the most objective and absolute proof that a process, method, and algorithm are not abstract, regardless of whether it is patent eligible subject matter. To make it easy simply remember that no method, process, or algorithm can ever be abstract. Now, which methods, processes or algorithms can be eligible for patent examination is a discussion based on ones personal and political beliefs.
Any further questions?”
Do you know how hard I was loling when I read that?
BTW, when are you planning to become a lawyer and argue this nonsense in front of the USSC? I want to sell tickets for spaces in line for that comedy show.
“Correct. When you know how to apply knowledge it is what cognitive scientists refer to as “proceduralized knowledge” and is no longer abstract thought.
Any questions?”
How hard were you loling when you wrote that? And did you realize that you were reciting a difference without a distinction or were you simply telling a bald faced lie?
Please recall that AI is a patent fundamentalist who believes that methods of thinking should be patentable. There is no “logic” or “reason” to AI’s position, except for his fundamentalist belief that when 101 says that “methods” are patentable it means “any method.” Arguing with AI about 101, therefore, is like arguing with a Biblical fundamentalist about the evolution of animals. At the end of the day, you will have learned nothing of value and you will have wasted your time.
Getting back to Ned Heller’s comment: I do not understand why we should deny patentability to anything that has utility.
This is also an absurd fundamentalist position which is why I highlighted it. Methods of thinking are undoubtedly useful. Does Ned believe that they should be patentable? Speak up, Ned. I believe that you have more integrity than Troll Above Law. Now is your chance to prove it.
AI, I’m struggling. You write:
“no method, process, or algorithm can ever be abstract”
You also write:
“Its the physical act of executing the procedure that demonstrates the threshold has been crossed”
and I suppose your “threshold” is the 35 USC 101 threshold.
But 101 says “process” no, and not “physical” process. So, are you then substituting “physical” for “not abstract”, as the 101 test?
Or are you disagreeing with the European exclusion of “mental acts” as patentable matter?
who dat Wrote: ” Why, when you apparently acknowledge that non-proceduralized knowledge is abstract, do you believe that adding the word proceduralized and finger quotes takes you out of the realm of abstract?”
I make no such acknowledgement, apparent or otherwise. And I have no such belief. Now, the first thing to understand is that a process, method, and algorithm are all the same thing and are not abstract. The evidence that underscores this fact has been partly elaborated on in my post at Dec 30, 2009 at 10:44 AM and in other posts I have made throughout the thread. May I suggest you go back and read at least the Dec 30 post if you want to discuss the supporting evidence in more detail.
Now building on what we know, when human beings engage in abstract thinking there is a high glucose usage by the brain. This can occur when contemplating the meaning of Blake or gazing into the colorful abyss of a French impressionist painting. Day and night dreaming as well as various forms of relaxation awareness are all considered abstract thinking. As I understand the law, such dreams, impressions, and thoughts are not eligible for patent examination. However when such thoughts are applied they require a procedure. So simply adding the word procedure or proceduralized does not take you out of the realm of abstract. Its the physical act of executing the procedure that demonstrates the threshold has been crossed. Now there are several levels for discussing this topic which are behavioral, cognitive, and neurological. At the neurological level the key correlation is the brain glucose metabolic rate. Which provides the most objective and absolute proof that a process, method, and algorithm are not abstract, regardless of whether it is patent eligible subject matter. To make it easy simply remember that no method, process, or algorithm can ever be abstract. Now, which methods, processes or algorithms can be eligible for patent examination is a discussion based on ones personal and political beliefs.
Any further questions?
“Correct. When you know how to apply knowledge it is what cognitive scientists refer to as “proceduralized knowledge” and is no longer abstract thought.
Any questions?”
Yes. Why, when you apparently acknowledge that non-proceduralized knowledge is abstract, do you believe that adding the word proceduralized and finger quotes takes you out of the realm of abstract?
AI,
Don’t forget that 6 brings his own rope – here – the word “apply” may be key (of course, since 6 did not present a full claim, it is not possible to tell if his hypo is a claim that would be truly patent eligible).
“Something is not abstract when a skilled person knows how to apply it.”
LOLOLOL, I know how to apply the pythag theorem but does that make it “not abstract”?
Correct. When you know how to apply knowledge it is what cognitive scientists refer to as “proceduralized knowledge” and is no longer abstract thought.
Any questions?
Thanks Crumbs. seems reasonable to me. I have forgotten what R Rader wrote. At what point does he see inherent patentability ending?
But meanwhile do I understand you aright: eliminate the thing that today passes for a “bright” line but put no replacement “line” in its place (except the statutory language of 101), leaving everything claimed as a “process” inherently patentable?
PS Is it “Radar” because he sees more than others?
MaxDrei,
You may want to be aware that the thread at Patent Docs actually rehashes the story of the patent computer simulation that was posted this past summer.
The long and short of it is that the computer simulation is faulty and does not portray real world events. I am not aware of the reason why the story is being republished, but the comments section at Patent Docs does include comments as to why the simulation is “more fluff than stuff”. Of course, this will not stop anti-patent types from proclaiming “see, I told you”, nor will the fact that the program is utter nonsense even matter to those wishing to proclaim that “patents are bad”.
The intuition that you speak of is a danger inherent in particular fields of human endeavor (and moreso when certain fields have fanatical people driven by an agenda that does not care about truth or the understanding of legal tenants), and if followed, would splinter and shatter the governance of patent law. Most any art field will have its advocates that for one reason or another, and to varying degrees of persuasiveness, clamor for separation from the universality of the patent directive in the United States Constitution.
I am sure that you are not alone in the degree of anticipation of how SCOTUS will rule on the Bilski matter.
I for one believe that SCOTUS will:
eliminate the brightline rule of MOT,
maintain that Congress has sanctioned business method patents (as the second question – receiving next to no discussion during the oral arguments – indicates to me that the Supremes can clearly see that Congress acknowledges, and thus condones, the existence of business method patents per se),
not provide a clearcut rule on software patents (leaving the likes of Allapat and restoring State Street), and
still kill Bilski’s patent application, much along Radar’s dissent.
Over on Patent Docs is a running thread about a newly published Paper which purports to show that patents in some fields of human endeavour demote rather than promote the progress. I suspect many people have this intuition, including the SCOTUS judges. I suspect they and many other people want to find a patentability filter that confines inherent patentability to (TRIPS’s) all fields of technology.
But where are the words that will be effective to draw the sharp line in the sand? For any Binding Precedent country, civil law Europe’s “technical character, technical feature, technical problem, technical effect” is no help whatsoever.
After the full length of this thread, I’m still left with no idea what words SCOTUS will choose. Fascinating.