Patentable Subject Matter of a Machine that Uses a Mathematical Algorithm

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.

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607 thoughts on “Patentable Subject Matter of a Machine that Uses a Mathematical Algorithm

  1. 602

    Done Deal | wrote: 1. Using the conventional definition of “Constitutional right”, patents are not a Constitutional right.

    AI: No such definition was ever presented or established in this thread and certainly no based on any citation of legal authority.

    Done Deal : 2. Using AI’s definition of “Constitutional (R)ight”, patents are mentioned in the Constitution.”

    AI: I, ( AI) Have not presented any definition of a “Constitutional (R)ight that is mine.

    The simple fact is that no one in this thread or the others has been able to cite any legal authority that invalidates the Inventor Rights in the Constitution as not being Constitutional Rights.

    Thus the Constitutional Right to a Patent remains valid and shall so remain until proven otherwise with a citation of legal authority or a Constitutional amendment.

  2. 601

    Since this thread appears to now have finally died a natural death, I will here summarize its contents for future Patently O archaeologists.

    Although the original post was about USC 101 patentability, AI immediately hijacked the thread to discuss his albatross, the Constitutional (R)ight to a Patent. Numerous commenters responded pointing out that the Patent Clause does not require Congress to establish patent rights. AI countered by using examiner-like logic to define “Constitutional (R)ight” to mean any right mentioned in the Constitution. Commenters pointed out that “Constitutional right” generally means a right guaranteed to the people by the language of the document, one that Congress cannot take away. AI countered by admitting that Congress could take away patent rights, but if they did so, WE THE PEOPLE would vote them out and vote in someone who would restore patent rights. Commenters pointed out that AI appears to be oblivious to the fact that he cannot personally speak for WE THE PEOPLE. NAL countered by alternately accusing everyone of being either 6 or Mooney. NWPA countered with “BABOON! BABOON! BABOON! BABOON!” Everyone eventually left, satisfied that they had each won the argument.

    So the following facts were gleaned:
    1. Using the conventional definition of “Constitutional right”, patents are not a Constitutional right.
    2. Using AI’s definition of “Constitutional (R)ight”, patents are mentioned in the Constitution.
    3. Only five people comment at Patently O: Mooney, 6, NWPA, NAL, and AI. All others are sox of those five.
    4. Arguing on the internet is pointless.

    PROSECUTION OF THIS THREAD IS NOW CLOSED. ANY FURTHER COMMENTS MUST INCLUDE A PETITION TO REVIVE DIRECTED TO THE DIRECTOR OF THE PATENTLY-O ALONG WITH ANY REQUIRED FEE(S).

  3. 600

    Night Writer Patent Attorney | Feb 22, 2010 at 08:11 AM: I worry, though, in that J. Stevens is the one that took up the banner of Benson from J. Douglas and he is not liking the current decisions at the SCOTUS. I worry that our CJ Roberts may throw him a bone and let him do as he may to the patentability jurisprudence.

    NWPA, you may be right in that Stevens is holding on and chomping at the bit to dig into software patents and get his revenge for Flook, A silver lining could be that Stevens is believed to be retiring in May, presumably after the Bilski decision. At least then we can get a new Justice and within a year or two bring a new case to the SCOTUS that sweeps away the cobwebs of Stevens and his 19th century thinking.

  4. 599

    NAL: you may be right about what will happen at the SCOTUS. I worry, though, in that J. Stevens is the one that took up the banner of Benson from J. Douglas and he is not liking the current decisions at the SCOTUS. I worry that our CJ Roberts may throw him a bone and let him do as he may to the patentability jurisprudence.

    I do think, though, that the Bilski opinion will review and recast Benson and the other SCOTUS cases on patentability. It may be dicta in reality, but it will be what the Fed. Cir. uses and judges like Moore would love to remove software from patent eligibility.

  5. 598

    MaxDrei,

    As you are no doubt aware, the laws between EP and US have more differences than that – there are pro’s and con’s to each system – I am not sure either has a purely better system, nor am I sure that either can (or even should) fully be matched up with the other.

    NWPA,

    That’s cool – I think that we are fairly in agreement on the so-called “troll” drumbeat.

    I don’t see the Supremes going as far as outlawing software – it doesn’t impinge on the case at hand and would be merely dicta. The opportunity is present, on the other hand, to slap down (yet again) the CAFC and the penchant for brightline tests. There could also be a “recalibration” of some of the more earlier SCOTUS decisions to bring them inline with software-as-a-tool, but I think that would be a stretch.

    Happy 600 Everyone.

  6. 597

    >>Not sure where you want to go with this link, >>NWPA.

    I just thought it was an interesting article related to patentable subject matter.

    It is convenient for big corp. to say that if you don’t produce anything then you are a troll. Therefore, everyone that isn’t one of a few big corporations is a troll.

    And, I wonder how many people are going to be out of a job in the U.S. if the SCOTUS removes software from patentability. I’ll bet a lot. Microsoft will probably give the boot to many of their new researchers.

  7. 596

    The more this thread continues, the more convinced I am, that the US/UK approach to patent eligibility is not as clever as that of the EPO. I think it’s a shame that the Supreme Court can’t follow the urgings of Paul Cole, and take with 101 the same liberal line the EPO takes on Article 52 EPC.

    The UK, like the US, seeks to filter out inventions in mathematics with its 101 provision. The EPO not. It acknowledges that the presence of a general purpose computer, or even a pencil and paper, is enough to confer “technical character” on the subject matter of a claim, which gets it over the 101 hurdle and leaves then only 102, 103 and 112.

    With math, the complement to the EPO’s liberal line on 101 is its stricter (technical feature/effect) line on 103. That’s the bit that is not accessible to the US Supreme Court, obliging it to stay with 101 as its math filter.

  8. 595

    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.”

    _________

    Okay this is nonsense.

    Software is a technological process.

    Computers are machines.

    Both inventions types by themselves are patentable subject matter.

    So a combination of software and machines ( e.g. system) is patentable subject matter.

    CASE CLOSED

    How anyone could say otherwise and keep a straight face is beyond me.
    What is this BPAI decision based on, metaphysics? The Occult? The Supreme Court put the legal definition for a machine out there over a hundred years ago to “include every mechanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result.

    Can anyone out there describe a software system that does not meet that definition?

    If the BPAI is going to make up some new precedential definition of what constitutes a machine it better be based on modern advances in science and technology and not some abstract, non testable words to be used for the sole purpose of KOing another information processing invention.

    Indeed, if this were my invention I would instruct my attorneys to take it all the way to the SCOTUS!

  9. 594

    “This one equates software with patents according to a NPE with 30,000 patents.”

    Not sure where you want to go with this link, NWPA.

    “The attitude of the big guys has been that unless you sue me or threaten to sue me, get lost,” he said in the interview. “I know, I was one of those guys.”

    Thus the demonization of “trolls” can be seen for what it is – demonization is a tool of those already with power striking out against what the patent system offers to ANY inventor. The advancement and promotion is NOT a friend of the big bad meanies when that advancement is owned by someone else (and protected by an exclusive right).

    It’s telling that a perfectly legitimate business model is so sinisterly attacked, and that attack is swallowed hook line and sinker without thought. What “crime” are NPE’s guilty of? They paid for the patent protfolios they hold (and since Malcolm refues to read – “trolls” are not out for bogus patents – they want solid, well written patents). Somewhere in those transactions the inventor was rewarded.

    The fact that NPE’s cannot be counter-sued because they do not produce only means that the big bad meanies have lost their nuclear-bomb patent weapon. This is NOT a bad thing. In fact, this should be applauded by those who despise facile patents because it is the very people demonizing “trolls” that are also most active in obtaining dumptrucks of facile patents – not the little guys.

    “Personally, he says he advocates not only the public disclosure of patents but also license agreements, but he will not give up the competitive edge of secrecy unilaterally.” – sounds like a smart business man to me.

  10. 593

    “Posted by: IANAE | Feb 18, 2010 at 09:00 AM:Actually, number (8) was more or less correct.”

    Number 8? LOL. Of all the straw, fluff and unsubstantiated Conjecture to hang your hat on you chose the one reason that was an out right falsehood. And even the original poster, West Coast Guy was forced to back away from.

  11. 592

    “AI: Again, says who?”

    Posted by: Orly Taitz | Feb 18, 2010 at 07:53 AM :”The Constitution, and WE THE PEOPLE”

    Cut and paste the exact text from the Constitution that says what you wrote up thread, along with the section so I can verify it word for word.

    ::WARNING TO ALL::

    Malcolm is lacing up his track shoes and preparing some nice juicy illogical fallacies for a distraction.

  12. 591

    Malcolm while dressed up as Orly Taitz wrote:

    ” The rest of your reasons, with the exception of the one about Nihilism and the part about me kicking you keister, are as your mom Noise is fond of saying, straw.”

    None of those reasons are mine. They belong to you and others that do not want to recognize the Constitutional Rights of Inventors. So you just admitted your arguments and those of your peers are Straw.

    And you are doing exactly what Noise busted you for doing so long ago. Setting up Straw man arguments and then accusing others of doing what you just did.

    Proving that no matter how you dress up a Mooney it’s still a Mooney.

  13. 589

    The rest of your reasons, with the exception of the one about Nihilism and the part about me kicking you keister, are as your mom Noise is fond of saying, straw.

    Actually, number (8) was more or less correct.

  14. 586

    Posted by: Orly Taitz | Feb 17, 2010 at 08:00 PM “Because Congress is not required to exercise its power to enact legislation that creates Statutory rights for Inventors, those Statutory rights can’t be Constitutional Rights.”

    AI: Says who?

    “Because Congress had a choice to act before it acted to exercise its power to promote the progress of Science and Useful Arts, by securing for limited times to Inventors the exclusive Right to their discoveries; those exclusive Rights stated in the Constitution and Secured to Inventors by Constitutional power are not Constitutional rights.”

    AI: Again, says who?

  15. 585

    “(2) Because Malcom Mooney while dresssed in drag as Orly Taitz and typing on a computer kicked your but!”

    I really must have touched a nerve there, eh AI?

    Here, I fixed two of them for you (prefacing this with the assumption that “Constitutional rights” are rights guaranteed by the Constitution):

    (10) Because Congress is not required to exercise its power to enact legislation that creates Statutory rights for Inventors, those Statutory rights can’t be Constitutional Rights.
    (6) Because Congress had a choice to act before it acted to exercise its power to promote the progress of Science and Useful Arts, by securing for limited times to Inventors the exclusive Right to their discoveries; those exclusive Rights stated in the Constitution and Secured to Inventors by Constitutional power are not Constitutional rights.

    The rest of your reasons, with the exception of the one about Nihilism and the part about me kicking you keister, are as your mom Noise is fond of saying, straw.

  16. 584

    In homage to the not so brave souls of the Skirt and Track Shoe Club, I have complied their top ten list of reasons why the Inventor Rights Stated in the Constitution, are not Constitutional Rights.

    THE TOP TEN REASONS

    The Inventor Rights stated in the Constitution are not Constitutional Rights. According to Skirt and Track Shoe Club.

    (10) Because Congress has exercised its power to enact legislation that created Statutory rights for Inventors, those Statutory rights can’t be Constitutional Rights.

    (9) Because the Inventor Rights stated in the Constitution can be taken away with amendment or abolishment those Rights are not Constitutional Rights.

    (8) Because the Constitution is silent on Inventor Rights.

    (7) Because the word PATENT is not in the Bill of Rights or in the original text of the Constitution there is no Constitutional Right for a Patent.

    (6) Because Congress had a choice to act before it acted to exercise its power to promote the progress of Science and Useful Arts, by securing for limited times to Inventors the exclusive Right to their discoveries; those exclusive Rights stated in the Constitution and Secured to Inventors by Constitutional power are not Constitutional.

    (5) Because you need to go to Law School. Or if you are 6, “LOL” school.

    (4) Because The preamble of the Constitution is just a bunch of fancy words and carries no weight. And Congress = We the People is absurd.
    WE THE PEOPLE are the servants to Congress Dam you!

    (3) Government can do what it wants and life is meaningless. Death to patents Long live Nihilism!

    (2) Because Malcom Mooney while dresssed in drag as Orly Taitz and typing on a computer kicked your but!

    And the number one reason the Inventor Rights stated in the Constitution are not Constitutional Rights.

    ::DRUM ROLL::
.
.
.
.
    .
    .
    .
    .

    
(1) Inalienable (R) ights are not endowed by any Creator but by the (S)hift (K)ey on your (C)omputer!!!

  17. 583

    “I am bumping this article and pleading to you all to post more comments. We are now only 88 comments away from reaching 666 commments. If we can do that, and if someone figures out how to pronounce “Cthulhu” correctly, then we can put a proper end to all this foolishness.”

    It’s “k’tool-oo”.

    Leviathan is coming. Ah Pook is here.

  18. 580

    I am bumping this article and pleading to you all to post more comments. We are now only 88 comments away from reaching 666 commments.

    Might I humbly suggest that the real problem is that we are not addressing this question at the proper level of abstraction, despite the patient and persistent facilitation of our dear friend Noise? For I hold this truth to be self-evident: that the Consitutionality of the patent (R)ight cannot be ultimately resolved until the essential distinction between (r)ight and (R)ight is acknowledged, once and for all.

  19. 578

    I am bumping this article and pleading to you all to post more comments. We are now only 88 comments away from reaching 666 commments. If we can do that, and if someone figures out how to pronounce “Cthulhu” correctly, then we can put a proper end to all this foolishness.

  20. 577

    For whatever it may be worth, see:

    link to 1201tuesday.com

    BPAI Finds Particular Machine
    Providing yet another data point for Bilski evaluations, the BPAI today decided Ex Parte Moyer, finding the following claim a) to be tied to a machine; and b) that the machine was “particular.”

    1. In a data processing system, a method of forming an immediate value comprising:
    receiving a data processing instruction at an input of a processor;
    the processor using a first field of the same data processing instruction as a portion of the immediate value;
    the processor using a second field of the same data processing instruction to determine a positional location of the portion of the immediate value within the immediate value; and
    the processor using a bit value in a third field of the same data processing instruction to determine a remainder of the immediate value.

  21. 576

    If it weren’t for that, WE THE PEOPLE would be closing in on 1000 comments by now.

    Fixed that for you.

  22. 575

    I protest the migration of this discussion to the Obama thread. If it weren’t for that, we’d be closing in on 1000 comments by now.

  23. 573

    In the sense that you indicate above, AI, I agree with you.

    Also note the use of the word invention. That is why the SCOTUS in Benson trys to pin information processing to a scientific principle to try to take an information processing method implemented with electronics out of the definition of invention. As if it is a trick to try and steal something. Shameful ignorance.

  24. 572


    Posted by: Night Writer Patent Attorney | Feb 05, 2010 at 08:15 AM: They did say “shall.” I was thinking of the difference between the enumerated powers of what congress may do vs. what congress cannot do. The analysis is the same. It is just a power that congress may do and not something that they must do.”

    Are WE THE PEOPLE, in a position of vassalage to the United States Congresss? Or is the United States Congress the servants of the American people? I hold the latter belief.

    Therefore WE THE PEOPLE have the power to enforce Article 8 of the Constitution by instructing our representatives to enact appropriate legislation for Inventors to be granted patents.

    It is in every sense, our Constitutional right.

  25. 569

    other sockpuppets of Malcolm (in this case Hans Blix

    Again, Dennis can confirm that you are wrong about this, too.

    Just ask him, NAL.

  26. 568

    People may not mistake you for yet another “rare” sockpuppet of Malcolm’s if you did not answer posts directed to yet other sockpuppets of Malcolm

    I don’t live or die by the delusions of people on an internet message board. Believe what you want about me.

  27. 567

    IANAE,

    People may not mistake you for yet another “rare” sockpuppet of Malcolm’s if you did not answer posts directed to yet other sockpuppets of Malcolm (in this case Hans Blix).

    I’m just saying… (not the poster)

  28. 566

    Anytime you or your sock puppets want to […] discuss the Constitution in the context of the views of the founding fathers and their philosophical foundations, I would be most glad to oblige you.

    Great. Any time you want to discuss the constitution in the context of what the document actually says, look me up.

  29. 565

    Hans Blix | Feb 05, 2010 at 09:42 AM:Don’t worry about all these people telling you that your interpretation of the U.S. Constitution is wrong. In fact, keep it up. It really, REALLY lends credence to your other argument that commodities trading schemes are patent-eligible. So, by all means, keep talking. I got your back on this one.

    Actually, there are at least two other commenters in this thread that presented cogent arguments for opposing interpretations of the Constitution, that while lacking in historical evidence, at least have some logical consistency.

    Your not so thinly veiled sarcasm is a case in point for the typical reaction that anti patent posters display on this blog when backed into a conner with with logic, reason and facts.

    Anytime you or your sock puppets want to drop the mooneyisms and discuss the Constitution in the context of the views of the founding fathers and their philosophical foundations, I would be most glad to oblige you.

  30. 564

    Actual Inventor:

    Don’t worry about all these people telling you that your interpretation of the U.S. Constitution is wrong. In fact, keep it up. It really, REALLY lends credence to your other argument that commodities trading schemes are patent-eligible. So, by all means, keep talking. I got your back on this one.

  31. 563

    According to the Constitution he can secure for limited time an exclusive Right to his Writings and Discoveries.

    Nope. That’s not anywhere in the constitution. Maybe you’re thinking of 35 USC?

  32. 562

    Ned: AI, if I grant the government the power of deciding capital cases (consent of the governed), where to I get the “right” to a trial by jury?

    AI: From WE THE PEOPLE

    Ned: You get it by limiting the power in the very document granting the power. Constitutional rights are limitations on governmental power.

    AI: Even using this analysis as a framework it would still be, WE THE PEOPLE limiting the power.

    Ned: Private rights are rights secured by law against infringement by the public. Examples include the right to exclude others from my land.
    What then are patents?

    AI: Using your above definition I have a private right to my ideas. The Constitution is the legal mechanism that limits THE PEOPLES ability to exercise their inalienable rights to the point of anarchy and blood shed.
    A patent is the technological process for an Inventor to exercise his or her Constitutional right to Promote the progress of science and the useful arts

  33. 561

    They did say “shall.” I was thinking of the difference between the enumerated powers of what congress may do vs. what congress cannot do. The analysis is the same. It is just a power that congress may do and not something that they must do.

  34. 560

    You win, AI! Because you’ve repeated your nonsense enough times, it’s now true. You have an inalienable right to a patent. Let me know when you get the ribbon copy.

  35. 559

    NWPA: “The framers thought about what you are saying and put down “may” not “must” or “shall” or “will”, but “may” and that little words would end any hope of getting anywhere in court.”

    With all due respect, I do believe section 8 of the constitution uses the word “shall”. As in “ The Congress shall have Power”

  36. 558

    Posted by: IANAE | Feb 03, 2010 at 09:14 AM: To which I reply, a man doesn’t have any particular right to do whatever he wants with those ideas.

    According to the Constitution he can secure for limited time an exclusive Right to his Writings and Discoveries.

  37. 557

    Posted by: CEO | Feb 03, 2010 at 08:05 AM: AI, regarding your statement that men have an inalienable right to their ideas, consider this simple hypo:
    You have an idea today, and file for a patent. Tomorrow, I have the same idea, and do not file for a patent. Yet, when your patent issues, it gives you the right to exclude me from using my own idea.
    There is a logical problem with arguing that men have an inherent right to exclude others from their inherent rights. Now, I’m not saying that it would be a bad thing for all men to have the inalienable right to their own ideas. I’m just pointing out that when you argue for such, you are advocating against the patent system.

    ______

    The flaw in your argument is that every inalienable constitutional right, including that of a patent, has it’s limitations. For example, we have the right to free speech yet we can’t shout FIRE!! in a crowed movie theather.

    It’s the price we pay for living in an organized society. Without the Constitution we would have anarchy with everyone exercising their rights to the extreme.

    WE THE PEOPLE, have agreed to retain our right to dream and imagine any and all ideas. No one can take that away. However we agreed to give up the right to act on our ideas for a limited time, to the man or woman inventor that dares to act first and actually promote (advance ) the progress of science and the useful Arts.

    It’s a fair quid pro quo for living in America, the greatest country and system of freedom in the history of the world.

  38. 556

    “””””””A new use of an old test, to treat zoophilia in your example, cannot be patented by only reclaiming the old subject matter despite the new utility. It has to claim as well something new: the treatment.”””””””

    You are refusing to accord the “making a political persuasion prediction” step any patentable weight?

  39. 555

    To which I reply, a man has a inalienable right to his ideas!

    To which I reply, a man doesn’t have any particular right to do whatever he wants with those ideas.

    An idea isn’t the same thing as a patent.

  40. 554

    CEO,

    You add an interesting wrinkle to the pure “rights” discussion.

    …now let’s add in the concept of “Promote” (that is, without the asterisk that some would add) that coincides with the Patent language in the Constitution.

    Stir liberally (pun intended).

  41. 553

    AI, regarding your statement that men have an inalienable right to their ideas, consider this simple hypo:

    You have an idea today, and file for a patent. Tomorrow, I have the same idea, and do not file for a patent. Yet, when your patent issues, it gives you the right to exclude me from using my own idea.

    There is a logical problem with arguing that men have an inherent right to exclude others from their inherent rights. Now, I’m not saying that it would be a bad thing for all men to have the inalienable right to their own ideas. I’m just pointing out that when you argue for such, you are advocating against the patent system.

  42. 552

    Just another example of how utterly out of touch with the middle class the governemnt is. After stealing trilions of our dollars and giving it to bankers (who never need to work again), they must have no respect for us. They figure they can do anything they want.

    That is what burns me about the examiners on this board. You–work for us!!!!

  43. 551

    So, to sum up AI:

    In law in the U.S.A.: the right isn’t there.

    As a species do we have or should we have such a right? Maybe the answer is yes and the U.S.A. is abusing its citizens, but to fix the problem you would have to amend our set of rules the Constitution.

    Sorry that isn’t the answer you want, but that is the answer.

  44. 549

    >>To which I reply, a man has a inalienable >>right to his ideas! His ideas are his hopes, >>dreams, indeed his very life. And yes, it’s a >?>God given right to protect his life, his >>livelihood the source of his very existence.

    You could probably create a cause of action based on this, but it would have to be pinned to a constitutional right. However, since the constitution explicitly makes the right a patent, a “may”, then I think you would lose. The framers thought about what you are saying and put down “may” not “must” or “shall” or “will”, but “may” and that little words would end any hope of getting anywhere in court.

    So, you may be right, that there is a human right to a patent, but not in the U.S.A.

  45. 548

    AI: Of course, We the People, ratified the constitution. It is just a set a rules to follow.

    Ask yourself what rights do you have as a person? If it isn’t in the Constitution and (not in your state constitution), then you may have rights that flow from common law, but otherwise you do not have any other rights.

    At least in law. But, come on now, AI, a patent is a form of property created in and for society.

    Believe me, I understand that you think that it is your right to your invention and that therefore you have a right to a patent to protect your invention. But, in law, you have to ask where does that right come from? What would be the basis for example in a law suit against the government in that you don’t have a patent? What would be the cause of action?

    You could find a cause of action (I have one in mind), but it would come from the constitution.

  46. 547

    NWPA: the Constitution doesn’t create a right to a patent. It empowers the congress to pass laws to grant patents to promote progress. That’s it.

    The Constitution does not do anything or empower anyone. WE THE PEOPLE empower the Constitution. In order to reach your conclusion one would have to hold the view that the Constitution was it’s own entity holding power over the common man or at the very least created by a God or King and brought down from the Holy Mountain in a Moses like fashion to rule us all. When in truth the Constitution was created and given its right to exist by WE THE PEOPLE!

  47. 546

    Posted by: CEO | Feb 02, 2010 at 07:50 AM: “For a person who loves America so much, why are you so intent on digging a hole to China?”

    Dear CEO;

    Yes, I believe in America. America has made me my fortune. I have invented, started companies and created jobs. And if God willing I will create more wealth and more jobs because I truly love this country.

    The Declaration of Independence is the foundation of my philosophy. And like Abraham Lincoln, I too share the belief that the Declaration is a statement of principles through which the United States Constitution is interpreted. When one adopts this view the constitution becomes a living, breathing document, that is given life by WE THE PEOPLE!

    Some may say, patents are merely intellectual property and like all property the Government can take it, and tax it therefore you do not truly have a constitutional right to it.

    To which I reply, a man has a inalienable right to his ideas! His ideas are his hopes, dreams, indeed his very life. And yes, it’s a God given right to protect his life, his livelihood the source of his very existence.

    The famous phrase, Life, Liberty, and the Pursuit of Happiness is not just the inspiration for the Constitution and the moral bedrock on which it’s based, it’s the reason for the existence of America herself.

    In the words of the great poet, “The ideal is more important than the real. For it is by the real that we exist it is by the ideal that we live!”

  48. 545

    OK, Ned, I’ll stop beating the infringement issue into the ground. If I understand you correctly, the only way someone could obtain a method patent for a test based upon an association between the presence/absence of a marker and an endpoint is if 1) the methodology employed to determine the presence/absence of the marker was novel and nonobvious, or 2) the claim included a subsequent step (after the determination of the presence/absence of the marker step, that is) to ameliorate or remedy the effects of the endpoint, which step was itself novel and nonobvious. Sound about right? If so, then yes, I think we agree. But I don’t think you’re going to be invited to the next holiday party of Prometheus Laboratories or Myriad Genetics.

  49. 544

    6, on the doctor issue, the problem could be solved by providing a licensing entity such as we have in the music industry. Doctors, for a few denarii, could buy a license for all procedures. He could also receive some income if he were a patentee of an new procedure licensed through the entity.

    What Congress did was foolhardy. As I said, I was asleep at the switch and bear some of the fault.

  50. 543

    Hans, the problem we have is that we agree. I assume you think we disagree.

    If the practicing the prior art infringes, the claim fails for want of novelty. The vice of some here is that they want to import novelty considerations into section 101, where the issue really is utility.

    A new test for X is patentable subject matter, where the knowledge of X is useful. For section 101 analysis, the assumption should be that the test is new. The determination of whether the test is new or old should be taken under section 102.

    A new use of an old test, to treat zoophilia in your example, cannot be patented by only reclaiming the old subject matter despite the new utility. It has to claim as well something new: the treatment.

  51. 542

    ” I don’t know about you, but I don’t want my doctor worried about infringing a patent while he’s doctoring me.”

    The same argument can be made for airline pilots, firemen, nuclear reactor operators and so forth.

  52. 541

    “Blasphemy. 35 USC specifically states that new and non-obvious uses of known aparatuses, processses, and other categories of patentable subject matter, are themselves patentable.”

    For the 1000000000000th time, you don’t understand how that has been interpreted. That’s embarrassing for a prosecutor. You need to go read Chisum.

    And hey Ned, why was it a mistake to exclude docs from damages? It seems to me like it was very much the proper thing to do. I don’t know about you, but I don’t want my doctor worried about infringing a patent while he’s doctoring me.

  53. 540

    Ned:

    I’ve already explained to you that, for purposes of my hypo, the manner of determining IQ is old in the art. The only thing that is “new” is the fact that IQ is correlated with one’s belief in the constitutional right to a patent in the U.S.

    So, your answer to the infringement question is yes if the results make the claimed prediction, and no if the results do not make the claimed prediction. Sound right?

    Next question: How does a result make a prediction? Isn’t a result just a result? Is making a prediction a mental act or physical act?

  54. 539

    Yeah, but the hypo did not actually claim a new use of a known process. It claimed only the known process.

  55. 538

    **But all this is nonsense. Without the test being new, the claim unpatentalbe under section 102.

    If we change your hypo so that the test was new and the prediction utility was not in the claim, then performing the test for zoophilia predictions would be an infringement because the test, not the prediction, is the subject matter of the claim.**

    Blasphemy. 35 USC specifically states that new and non-obvious uses of known aparatuses, processses, and other categories of patentable subject matter, are themselves patentable.

  56. 537

    TINLA, yes indeed, what the Mayo claims are trying to do is move “infringement” itself away from the doctors who are already immune from damages.

    I recall when “doctor immunity” was being proposed. I regret to say that I took very little interest in the topic, and went along with the majority on whether to support the proposal. That was a mistake. Exempting the doctors was a very bad idea.

  57. 536

    Hans, below is your claim and your “infringing” activity. Your claim requires “making a political persuasion prediction” of a specific type. So long as your test results do not make the claimed prediction, there is no infringement. Reporting the test result itself is old and is not an infringement.

    “”A method for predicting the political persuasion of a human, comprising determining a human’s IQ, and making a political persuasion prediction based on said determination, wherein if the IQ is less than 75, the prediction is that the human believes that there is a constitutional right to a patent in the U.S., and if the IQ is 75 or more, the prediction is that the human believes there is not a constitutional right to a patent in the U.S.

    After your patent is granted, I discover a correlation in humans between IQ and propensity to zoophilia, wherein an IQ of less than 75 indicates a propensity to zoophilia, and an IQ of 75 or more indicates a lack of propensity to zoophilia. I proceed to commercialize a test that predicts propensity to zoophilia in humans, wherein the test consists of measuring IQ in precisely the same manner as described/claimed in your patent.”

    But all this is nonsense. Without the test being new, the claim unpatentalbe under section 102.

    If we change your hypo so that the test was new and the prediction utility was not in the claim, then performing the test for zoophilia predictions would be an infringement because the test, not the prediction, is the subject matter of the claim.

  58. 534

    **One of the main problems with “determine and infer” patents **

    One of the main problems with not granting such patents is that there is no incentive to disclose, go through all the red tape and expense to get govt permission to market/use the test for the new purpose, go to market, etc.

    But I don’t see why there can’t be a bunch of different independent claims, one for each possible response, such as treat, diagnose, inform, etc. Maybe do a markush and get them all in one claim. i mean, sure, Doctors are statutorily immune to infringement, but that doesn’t stop the patentee from suing a doctor and impleding the maker of the competing lab product as a contributory infringer, and then collecting all of the damages from them. Does it?

  59. 533

    **Not sure how the anti-caveman bias got into the picture, nor how broje was forgotten…**

    People prolly think I wrote the 500th comment, to have escaped scrutiny.

  60. 532

    Hans,

    Now you have me worried.
    Is zoophilia contagious?

    And if caught, what test determines if the infected personage will have more affinity towards cats rather than dogs or vise versa?

  61. 531

    Ned, I understand your feelings about the validity of the claims at issue in Prometheus v. Mayo, but right now I am not interested in your opinion about that. I have asked you to assume that your patent is valid and enforceable. So, once again, does my test infringe your patent?

  62. 530

    Hans, I think I illustrated that the problem with the Mayo type claims is lack of novelty.

    If the test were new in any way, one could claim it without the administering step. But if it were not, the only way to claim it and define something new would be to include the administering step.

  63. 529

    OK, Ned. Assume that your patent is valid and enforceable. Does my test infringe your patent?

    One of the main problems with “determine and infer” patents is that a single fact can indicate lots of different facts. Bad breath can be a sign of poor dental hygiene, or it can be a sign of gastroesophogeal reflux disease, or it can be a sign of a sinus infection.

  64. 528

    AI, if the founding fathers shared your position, they would have stated “The Congress shall secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” You wish they had said this; however they did not. For a person who loves America so much, why are you so intent on digging a hole to China?

  65. 527

    AI: the Constitution doesn’t create a right to a patent. It empowers the congress to pass laws to grant patents to promote progress. That’s it.

    Congress doesn’t have to, but they “may”. You have a right to elect members of congress and try to get them to pass laws to grant patents. You have a right to express your opinions about patents, but there is not right to a patent.

  66. 526

    PMS

    Pedantic Meddlesome Semantics

    It does seem appropriate that this thread has attracted a new strain of discussion wherein the debate can swirl around and around because the definitions of the debaters simply do not match up.

    Not to say that either side is wrong, but that neither side will want to see what’s in the bowl and will use the handle as the first step in their discussion.

    We even have the “rare” pseudonym self-handshaking between Hans and Free. That in itself is enough to fill the bowl.

  67. 525

    AI, if I grant the government the power of deciding capital cases (consent of the governed), where to I get the “right” to a trial by jury?

    You get it by limiting the power in the very document granting the power.

    Constitutional rights are limitations on governmental power.

    Private rights are rights secured by law against infringement by the public. Examples include the right to exclude others from my land.

    What then are patents?

  68. 524

    Hans, the information must have some utility. In both your examples, the information has no utility.

    Second, assuming there was utility in the information, if there is no new algorithm or method, the claim is old. It reads on the prior art. It is unpatentable.

    This, however, is not a section 101 problem. If the test were new, as in Arrhythmia, Section 101 would not be offended if the claim did not actually require the use of the information.

    One can instantly see the real problem in Mayo.

  69. 523

    Posted by: Night Writer Patent Attorney | Feb 01, 2010 at 03:16 PM

    “Do you think there is a right to a patent implied by the Constitution? ”

    The right is explicit.

    “Article 1 section 8: “The Congress shall have Power To: Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    Now what, if anything about this section of the constitution would cause you to believe, Inventors do not have a constitutional right to a patent?

    I would sincerely like to understand the foundation of an opposing view
    ( assuming you have such a view) from a rational commenter.

  70. 522

    Posted by: Ned Heller | Feb 01, 2010 at 04:51 PM: The people generally have no right to force the government to do anything unless that power is granted them by act of congress.

    Ned, on this philosophical point we disagree.

    We The people can vote, peacefully assemble and protest. I would vote to remove any Senator, Congressman or Congress woman that would support any bill to eliminate my right to a patent.

    I would vote with my dollars!

    I would vote with my voice!

    I would vote with my ballot!

    Yes, I share the philosophy of our founding fathers and deeply believe in the principles of the Declaration of Independence.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..”

  71. 520

    I also predict that my company, USRC – Urination Station Reservation Corporation, will generate at least twice as many jobs as AI’s company, MentalMethods’R’Us, LLC.

  72. 519

    A hypo for Ned:

    You discover a correlation in humans between IQ and political persuasion, wherein an IQ of less than 75 indicates you believe there is a constitutional right to a patent in the U.S., and an IQ of 75 or more indicates you believe there is not a constitutional right to a patent in the U.S. Assume the IQ test you employed to “create” your discovery has been around for years. You are awarded a patent for your “invention” wherein the principal independent claim is “A method for predicting the political persuasion of a human, comprising determining a human’s IQ, and making a political persuasion prediction based on said determination, wherein if the IQ is less than 75, the prediction is that the human believes that there is a constitutional right to a patent in the U.S., and if the IQ is 75 or more, the prediction is that the human believes there is not a constitutional right to a patent in the U.S.

    After your patent is granted, I discover a correlation in humans between IQ and propensity to zoophilia, wherein an IQ of less than 75 indicates a propensity to zoophilia, and an IQ of 75 or more indicates a lack of propensity to zoophilia. I proceed to commercialize a test that predicts propensity to zoophilia in humans, wherein the test consists of measuring IQ in precisely the same manner as described/claimed in your patent.

    You sue me for infringement. Do you win? Why or why not?

  73. 518

    @ IANAE – More accurately, the fact that the constitution lacks a statement that entitles citizens to a patent invalidates his argument.

    @ AI – your position falls apart when you consider that I am just as much one of “the people” as you and I don’t particularly want anyone to have a patent. Your right to exclude tramples my freedom to do what I want. Just because you’re on a patent law blog and the regular commenters are pro-patent doesn’t mean that a majority of US citizens, much less all citizens, support your exclusive right to restroom reservation systems. I say your patent be dam ned and let the best restroom reservation system win (mine is going to be called Ex-pee-dia.com).

  74. 517

    AI, others may have said this, but there is a real difference between a power granted to the US Gov. (congress, president) to do something and the right the people may have against the government from exercising that power.

    The people generally have no right to force the government to do anything unless that power is granted them by act of congress.

  75. 516

    “You won’t gain any ground by bringing up irrelevant issues like health care or slavery.”

    How about Oreos? I submit that there is just as much basis for a Constitutional right to free Oreos as there is for a Constitutional right to a patent. The Constitution grants Congress the power to spend on just about anything it (the PEOPLE) likes, in providing for the general welfare. Oreos definitely promote general welfare. Furthermore, the 9th Amendment makes it clear that the enumeration of certain rights in the Constitution (e.g., patent rights?) does not disparage other rights (e.g., to free Oreo cookies) retained by the PEOPLE.

    Consider this a challenge, AI. How is your Constitutional right to a patent different from my Constitutional right to free Oreos?

  76. 515

    if you can’t invalidate my case for the existence of a constitutional right for a patent, using the constitution,

    I don’t have to invalidate anything until your case includes a statement from the constitution that entitles you to a patent.

    It’s not in there, I assure you.

  77. 514

    IANAE :” A majority of The People want public health care. How’s that going in Congress?”

    We already have public health care.

    Next?

    No, on second thought, if you can’t invalidate my case for the existence of a constitutional right for a patent, using the constitution, or its historical context then just let the leave the discussion and concede the point. You won’t gain any ground by bringing up irrelevant issues like health care or slavery.

  78. 513

    What does that mean “patent rights”? I really am not trying not to be thick, but what do you mean here? Do you think there is a right to a patent implied by the Constitution? Are you saying that people have the right to patents and the Constitution just said that Congress may pass laws to grant that right formally whereas if they don’t pass laws then there is a common law right?

    What exactly is your argument here?

  79. 512

    NWPA: AI: I think equating Habeas Corpus with patents is just, well, silly. You can argue that philosphically it should be a right, but trying to pin a patent grant to Habeas Corpus just has no basis in the Constitution. Please stop this”

    I am doing no such thing. You simply read my quote out of context. The Habeas Corpus issue came up not in reference to patents but in regards to whether individual rights were included in the constitution before the writing of the bill of rights.

    My point was simply that Habeas Corpus was included in the constitution and I believe was the only individual right expressly stated therein. I also pointed out that since Habeas Corpus can be suspended or revoked it disproves the claim someone made that a right can only exist if it can’t be revoked.

    Now with that red herring nipped in the bud I am glad to go to the mat on the constitutional merits of the existence of patent rights.

    So far no one has shown anything in the actual constitution or its historical context that invalidates the case I have made for the existence of patent rights.

  80. 511

    IBP, you thesis can be summed up:

    Potential Utility is not Actual Utility.

    Likewise, you would argue that potential energy is not actual energy, e.g., that matter is not real as it is only potential energy; or that gravity is not real as it is only a matter of different potential energies in time-space.

    One could invent a new way of assaying ore for gold, but, according to you, the claim would be condemned as not having “actual utility” until the gold was actually mined. Nonsense.

    As I said before, if the signal, the information, represents something real and physical, as from a measurement, it should be patentable without more. All the Fed. Cir. cases are uniform on this point. Further, I have previously noted that in Halliburton, a Supreme Court case, no one ever thought to condemn the claimed apparatus for measuring the depth of an oil as lacking utility. Knowing of the depth of an oil well itself is useful.

    Tests for AIDS, pregnancy, risk of heart attack, distance to target, all have REAL utility. Therefore, “potential utility” must be a form of REAL utility because it is useful.

  81. 510

    AI: I think equating Habeas Corpus with patents is just, well, silly. The point of patents is to “promote.” And “may” is used. I understand all your arguments and, you can say, I or we want that promotion, but it is not a right. It only weakens your arguemnt and credibility to try and equate granting patents with a right from the Bill of Rights. At least when your basis is the Constitution. You can argue that philosphically it should be a right, but trying to pin a patent grant to Habeas Corpus just has no basis in the Constitution.

    Please stop this.

  82. 509

    NWPA, Congress can’t do anything without the instructional voice and will of The People they are elected to serve.

    And if such a debate should ever start in the halls of Congress you best be sure The Peoples voice will be heard loud and clear from all directions.

    A majority of The People want public health care. How’s that going in Congress?

    You’ll never get majority popular support for changing an arcane point of patent law, no matter how important you think it would be for a garage inventor.

  83. 508

    AI: it just says “shall have power to.” It doesn’t say will or must. Congress could do away with patents completely and it would not be unconstitutional”

    NWPA, Congress can’t do anything without the instructional voice and will of The People they are elected to serve.

    And if such a debate should ever start in the halls of Congress you best be sure The Peoples voice will be heard loud and clear from all directions.

    Given that, you are correct, the Supreme Court poses a greater threat in that they can pretty much do whatever they want. But even then The People can instruct Congress to correct any damage done by the SCOTUS.

    And since it adds to the point in of discussion I have posted the rest of my original comment on this topic as a reference of interest.

    Posted by: Actual Inventor | Feb 01, 2010 at 12:07 PM:…..every “right” in the bill of rights, including Habeas Corpus which is actually in the constitution, can be suspended or taken away without an amendment to said constitution. This is especially true in our post 9-11 patriotic acting world.

    So I remind you once again, The Bill of Rights did not add to the constitution, and only spelled out specifically that which already inherently existed therein.

    That’s why I also reminded you of the 9th amendment in my original reply and reiterate it here:

    Amendment 9 – Construction of Constitution.” Ratified 12/15/1791: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    And again I urge you to not ignore nor underestimate the purpose and importance of the preamble; WE THE PEOPLE.

    For it is within these words that our constitutional rights, including the right of a patent, find their power to exist.

    Congress has no authority for that but which we grant it. And only We the People can cause and allow any of our constitutional rights to be suspended or revoke.”

  84. 507

    Some of you may have missed the discussion of the constitution over on the Patently-Oreo(TM) blog. An exemplary posting:

    Yes, We the People as eaters of Oreos have a constitutional right to free Oreos on Tuesdays.
    Article 1 section 8: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

    The King, Queen, or President did not grant Congress the spending Power.

    The Supreme Court did not grant Congress the spending Power.

    The Framers did not grant Congress the spending Power.

    WE THE PEOPLE GRANT THE SPENDING POWER!

    WE THE PEOPLE DO SO ORDAIN!

    “WE THE PEOPLE of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

    And yes, We the People as eaters of Oreos grant our representatives in Congress the Power and privilege to appropriate funds for the procurement and distribution of free Oreos (on Tuesdays) through appropriate legislation, and it shall so remain until We the People as Oreo eaters decide otherwise.

  85. 506

    AI: it just says “shall have power to.” It doesn’t say will or must. Congress could do away with patents completely and it would not be unconstitutional. Probably a more interesting point about the actual text is the word “promote.” The SCOTUS can use this word to pretty much do away with any part of the patent act by saying they don’t think it “promotes” to allow patent to information processing application or “promote” as they used in KSR to say that obvious improvements don’t deserve patent because they don’t promote.

  86. 505

    Historic 500th Comment | Jan 31, 2010 at 08:11 PM:

    “Actual Inventor – Not one to let a little thing like the Constitution not guaranteeing you a right to a patent get in the way of your Constitutional right to a patent,”

    In light of the flippant casting of a very important and serious issue I post the following excerpt from another thread.

    Posted by: Actual Inventor | Feb 01, 2010 at 12:07 PM:

    Yes, We the People as an Inventors have a constitutional right to a patent.
    Article 1 section 8: “The Congress shall have Power To: Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    The King, Queen, or President did not grant Congress the Power.

    The Supreme Court did not grant Congress the Power.

    The Framers did not grant Congress the Power

    WE THE PEOPLE GRANT THE POWER!

    WE THE PEOPLE DO SO ORDAIN!

    “WE THE PEOPLE of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

    And yes, We the People as Inventors grant our representatives in Congress the Power and privilege to administer our patent rights through appropriate legislation and it shall so remain until We the People as Inventors decide otherwise.

  87. 504

    Jules: Snark-boy extraordinaire. Be nice to see some substantive content from you, Jules.

  88. 503

    “Historic 500th Comment”

    Classic, just classic. Spot on commentary all to the cool background music of a Bud Light Real Men of Genius commercial.

  89. 502

    Of course, what would have been far more interesting if you would have tried to understand the substantive arguments made and removed all the inventives that flowed, that would have been far more interesting.

    This issue is heated because it goes to the core of moving technology forward and exposes many of the self interested with their specious arguments. There is nothing like a real issue to force people to take a good look in the mirror.

  90. 501

    For the approximate last 200 comments,

    6 led the way with 15%,
    followed by NWPA at 11%,
    AI and Mooney at 10%, and
    NAL and broje came in at 9%.

    Not making the cut at the award table, but earning the Avis honorable mention were
    IBP at 8%,
    MaxDrei at 7%,
    Hagbard and BigGuy at 5% and
    Ned at 4%.

    Not sure how the anti-caveman bias got into the picture, nor how broje was forgotten…

  91. 500

    much better than the 300 marker comments in not “inadvertently” leaving out the main contributors,
    but the PT Barnum filler posts were a bit cheesy.

  92. 498

    The 500th Comment!!!

    **** fireworks ****

    I would like to thank all of you for joining me at this historic comment, as we look back at this mammoth thread and honor some of those who made it all possible. Yes, without your nattering and yammering, we never could have built this veritable Everest of blog wisdom. I point out that this lofty height has never been reached at other highly ranked (ha!) blogs such as IP Watchdog, and never will now that Quinn’s comment section is a police state. So here’s to you, Dennis Crouch, for giving us a forum where we’re free to prove on a daily basis that we are in fact the utter jacka$$e$ that all of our coworkers already know us to be.

    **** starts playing the Bud Light Real Men of Genius music ****

    6 – You never let a seemingly insurmountable hurdle like not knowing what you’re talking about stop you from sharing your infinite wisdom. Faced with superior arguments, you always remain logicaLOL and rationaLOL. You are a shining example to blowhards everywhere, myself included.

    NAL – You, madame, are a pillar of inanity, the very foundation upon which this steaming pile of logical fallacies and ad hominem attacks is built. Like every great anonymous commenter, you know that the proper response to civilized discourse is to personally attack your opponent’s intellect, then make a remark about the “trainwreck”. To see this argumentation technique in action was breathtaking.

    Mooney – Once upon a time, you wrote comments that actually adressed the post topic. Thankfully, you have given up on that sort of nonsense. Your periodic trolling kept the locals riled up enough to get us here where we are today.

    NWPA – Whenever it looked like the comment train was losing steam and might even (gasp) adress the topic of whatever it was Dennis wrote about, we could always count on you to bust out the triple baboon comments and get us back on track to hit 500.

    Caveman – Your creepy obsession with Malcolm being a monkey in lingerie on a sewer grate has made us all feel a little less embarassed about our own sexual fetishes in comparison. Bless you sir!

    Actual Inventor – Not one to let a little thing like the Constitution not guaranteeing you a right to a patent get in the way of your Constitutional right to a patent, you defined and redefined your way out of any unpleasant corner you found yourself in. Bravo!

    As we stand here today at this historic moment, I am humbled to think that I, an anonymous peon, have had the privelege to walk amongst such giants of the blogosphere. Let’s have a round of applause for the Big Dogs of Commenting at Patently O!!

    **** standing ovation ****

    **** more fireworks ****

    **** plays national anthem ****

    USA!!! USA!!! USA!!!

  93. 492

    Don’t worry Max – you just might question why “flowbee” is posting on a Sunday afternoon himself.

    Things that make you go “Hmmm”.

  94. 491

    Flowbee, I think there are a great many more patent attorneys in the USA than there are in 40 country polyglot EPO-land. But you are dead right that my “dull” was a poor choice of word. Many thanks for that.

  95. 490

    “Don’t forget to follow the thread of comments on the IPKat blog. Last time I looked, it was up to 5. Just shows you how dull Europe is, compared with the activity on Patently-O.”

    Max, I think that more likely indicates that unlike Americans, Europeans actually have lives. Or at least something better to do on Sunday afternoons.

  96. 489

    Noise when you discover:

    “It appears that not everyone there views the matter in quite the same way,”

    you are spot on. But it used to be much worse than it is today. The patent-eligibility law of the 36 independent sovereign Member States of the EPO is converging. Good, eh?

  97. 488

    Interesting comment from Gad, and seems to confirm a suspicion as recently posted on another thread (true followers would know that I like MaxDrei and hold him to a higher standard, only assailing him when he strays off-course).

    But MaxDrei, what are your thoughts on the IPKat article. It paints a rather schizophrenic view of whether/to what degree the corresponding patentable subject matter debate has evolved on your side of the pond. It appears that not everyone there views the matter in quite the same way, much less as a settled issue.

    How do you see the matter?

  98. 487

    “PS. I did like your two new words.”

    Watch it, Max, or you’ll find yourself asailed once again! Prodiginously, this time.

  99. 486

    Noise, yes I too have seen the summary of EPO 101 from David Pearce of the IPKat. It’s a condensed version of what he presented to a recent conference.

    A nice handy resource, I thought. Pearce is pretty sharp (no pun intended). Don’t forget to follow the thread of comments on the IPKat blog. Last time I looked, it was up to 5. Just shows you how dull Europe is, compared with the activity on Patently-O.

    PS. I did like your two new words.

  100. 485

    The whole notion that patents create jobs is such a load. True, they create attorney jobs, patent examiner jobs, searcher jobs, “product clearance” (ugh) jobs. But these few jobs are more than offset by the number of jobs that patents prevent by making it more difficult for entrepreneurs to produce products.

    Case in point: St. Clair (see link to morganlewis.com pages 9-10). The patents here generated 8 jobs. In return for those 8 jobs, over $120 million was extracted from industry. It’s pretty obvious that if not for these patents, the companies that paid out that money could and would have used at least a portion of it to generate new products or improve existing products, either of which would have created more than 8 jobs. All patents are doing is making business more expensive.

    P.S. Inventors that have to rely on patents to make money don’t deserve to call themselves inventors.

  101. 484

    Posted by: broje TINLA IANYL: This the thread that just keeps on giving. I predict 500 comments.

    Yup and Mooney and his endless sock puppets will make up most of them.

  102. 483

    Malcolm Mooney, posting under yet another alias writes:

    AI, a.k.a. Chicken Little, the sky is not falling because of Bilski.

    No Malcolm ..Ummm Bill Skeeh, the sky is not falling. Here is what’s happening under Bilski:

    First, stand alone technological processes, the foundation of the industrial revolution and the life blood of the information age, have been effectively eliminated as patentable subject matter for no scientific or technological reason and no cogently stated policy reason for that matter!

    Second, the time honored 100 year old definition of a machine has been eroded to nothing more that an every changing subjective ideal whose definition can be endlessly tampered with at the whim of the BPAI so s to effectively eliminate patent eligibility for computer software.

    Oh, and Malcolm, there is no way to invent anything without actually practicing it. If you were an Actual Inventor, or at least a real Patent Professional rather than an internet non entity troll, you would know this.

  103. 482

    EP and the intracacies of As Such and Per Se,

    MaxDrei, just caught this article and have not digested it yet, but it links this prodiginous thread and your favorite subject (EP), so I thought to provide the link and inquire as to your thoughts (btw – this line caught my eye immediately: “…but this would not necessarily stop practical applications being patentable” – hmm, applied _____)

    link to ipkitten.blogspot.com

  104. 481

    “1. you have no intention of ever practicing your own “invention””

    Classic red herring from you-know-who.

    Check out Peter Zura’s blog for Troll stories – the Trolls are not dumb and don’t go for those “bogus” patents. They want real property that will stand up in court. Nice to see the big bullies be afraid.

    Oh well, more straw for the fire.

  105. 479

    AI, a.k.a. Chicken Little, the sky is not falling because of Bilski. Your statements are so beyond the pale that even your hypothetical 6th and 7th graders could see them for what they are: pure bull shizzle. Well, ok, maybe the sky is falling, but if and only if:
    1. you have no intention of ever practicing your own “invention”
    2. your idea of “inventing” is coming up with an idea, filing a patent application, and sitting on your duff waiting for bags of money to arrive in your mailbox
    3. you have no intention of advancing technology but rather seek to lock down basic building blocks that those who really are advancing technology need to use
    4. you work in the cutting edge field of restroom reservationology

  106. 477

    IBP,

    Thank you for the link. I actually enjoy your posts as the level of thought and sophistication is worlds apart from those that I normally “assail”.

    However, your “game” is still just as stilted as the one you seek to replace.

    “A better paradigm is needed”
    “organized favorably”
    “We need more judicial rigor”

    You are not escaping the fact that your set of rules will result in a game that meets a certain logical ending. Your own.

    I don’t buy your premise or your set of rules to the “game”. Especially when the “more rigor” is bound up in a obviously biased world view.

  107. 476

    NAL–

    I’m not arguing that semiotics rules the day, but that it SHOULD rule the day.

    The sort of piecemeal, fact-driven definitions that we currently have are, by general acclaim, unwieldy at best, and unworkable at worst.

    Everybody’s clamoring for change, but they’re arguing specifics within the prevailing paradigm, specifics that they feel are likely to benefit their current (and likely ongoing) clients.

    I’m arguing generalities, without regard for a specific current client, group of current clients, or art. I’m doing this in view of FUTURE clients, and for myself. A better paradigm is needed for them, and for myself, and for the country.

    Very few people disagree with the premise that some change is needed–what they disagree upon is what form the change should take, and how it should be achieved. Arguing specifics within the existing paradigm may benefit certain current clients or groups of clients–but then again, it may not. Specific arguments will certainly not benefit ALL groups of clients, actual or potential.

    It seems to me that most of the pieces are in place, they just have to be organized favorably. Sure, there are some decisions out there that are considered just plain wrong by a majority of practitioners, and those decisions should be acknowledged as wrong, unfortunate, misguided, or by some other designation that allows them to be ignored. Believe me, using one of them in support of a legal position sucks, and if you ever have to do it, you KNOW that it sucks. It is sometimes better in practice to ignore them, or to use them in only a secondary way.

    YOU CANNOT GET AWAY FROM SEMIOTICS AS A FOUNDATION–YOU CAN ONLY ENGAGE IN IT WITH DIFFERENT DEGREES OF APLOMB, DEPENDING ON THE CONTEXT.

    Along with things like dialectical hermeneutics, it forms the core of western legal reasoning. If you’re especially interested in something like “software patents” and “information systems”, I would direct you to such sources as articles like “Dialectical hermeneutics: a theoretical framework for the implementation of information systems”, available at link to www3.interscience.wiley.com

    We need more judicial rigor. Unfortunately, we’re not likely to get it. We all know that judges feel unduly burdened by their workload, and that clerks do all the research and much of the writing, and even formulating arguments along with amici, whereas the judges act as editors.

    Not an environment from which any rigor can really be expected. But we can advocate for it–after all, a better paradigm would lead to an increased judicial economy–a good return for an investment made up-front.

  108. 475

    Posted by: Night Writer Patent Attorney | Jan 22, 2010 at 01:45 PM:

    “6, you think that companies that are founded based on infomration processing are not real companies. That seems to be at the heart of your thinking.”

    Backward inane thinking yes. When I was in middle school I took a class called industrial arts. It was basically wood shop and we learned to make bird houses. Six square pieces of wood with a hole drilled in the front. Later you could take metals class and make a small metal box or letter holder by bending and cutting some tin.

    Now let’s compare the work of these students to someone with an advanced degree in information processing systems that has the expertise to invent a new algorithm that could make it possible for a space ship to travel to mars, or an industrial engineer that could conduct a workflow analysis and invent a new work process that could save the US Government a trillion dollars in spending.

    Are these professionals not just as worthy of having their inventions examined for patents as the 6 and 7 grade kids in Mr. Gastaway’s wood shop class?

    Does an industrial arts student have more constitutional rights and importance than an industrial engineer?

    Are the creations in metal shop classes more valuable to society than the genious inventions of computer scientists?

    The answer to all these questions are yes, if you believe the anti patent, anti business method and anti information processing detractors on this blog.

    Ironically those 6 and 7 graders better get their patents now because if the examiner 6s of the world have their way, that’s about all they will ever be able to patent no matter how much they study and grow up to advance science and the useful arts.

  109. 474

    Aw Actual Inventor, lighten up.

    in mock jest NOT to AI, but rather to IBP – I’m sure you get it.

  110. 473

    6 wrote: “I’m curious about one thing though Night, why should we care if a company who can’t invent (save perhaps a “business method”) anything gets started?”

    Spoken like a true public sector union employee that will have a job regardless of the lack of intelligence, laziness and belligerence displayed and whose level of incompetence will only lead to more promotions from principle peter.

    Nonetheless this is an important question given the current mix of court cases and economic crisis we face as a nation and world.

    The short answer is 15 million new jobs, which are desperately needed. And, as it has been demonstrated in this thread, when inventors get patents they get funding to create jobs.

    The government says we lost 85,000 jobs in December, and the resident troll says these people need to get a life. Well, these people had lives and great ones until they lost their jobs.

    Rather than waiting for the Government to give them a job, or socialism to make a come back we need to beef up our patent system and make sure every American has equal access to a strong and fair patent system that includes inventions for new and useful algorithms, business methods, and stand alone technological processes.

  111. 472

    Posted by: 6 | Jan 21, 2010 at 05:10 PM: I have to admit though, I didn’t know that TV signals were subject to copyright. I doubt they are”

    Brilliant

  112. 471

    IBP – you make the major and unfounded assumption that the field of semiotics rules the day when it comes to legal definitions related to the 101 issue.

    It just aint so. You are not at a loss – you recognize that I am aware of your game playing. Stop being so disingenuous.

    I would lighten up and play your game, except that there are people (reading and posting here) that do not realize the game you play and will be confused as to the real law.

  113. 470

    6, you think that companies that are founded based on infomration processing are not real companies. That seems to be at the heart of your thinking.

  114. 469

    All three groups are highly motivated, highly intelligent, and scared that Bilski will mean no money, no way to protect thier invention, and frankly, no motivation for them to do anything.

    Maybe they should get a life.

  115. 468

    Oh, and by the way,

    POTENTIAL UTILITY = POTENTIAL FOR UTILITY = NO ACTUAL UTILITY

    Again, notice the etymology of the word ACTUAL.

  116. 467

    Well, I figured that since I only make one post a day, I may as well make it a long one. It will probably take longer to read it than it did to write it, though!

  117. 466

    I previously commented that a simple test for tangible manifestation COULD be to consider whether the noun upon which the verb operates is corporeal or not.

    In order to be employed effectively, this test relies heavily upon a good understanding of grammar. For instance, consider the claim: A method of generating pseudo-random numbers comprising: inventing a linear feedback shift register. Forget about enablement, etc.—consider that this type of sentence is probably grammatically incorrect from the outset, yet it is of a type commonly found in patents. The verb of importance is “inventing”, and a noun in the sentence is LFSR—but does the verb “operate on the noun”, or in language from Gottschalk, etc., “IS THE ACT OF INVENTING PERFORMED UPON THE LFSR? The answer is clearly no, and hence 101 would not be satisfied by such a claim.

    6—

    I think that a distinction must be made between claim steps directed at what I call INHERENTLY ABSTRACT signifiers, and FUNCTIONALLY ABSTRACT SIGNIFIERS.

    Functionally abstract signifiers are the result of a previous claim step that in effect identified the signified and the code to translate from signified to signifier and back again. In effect, the applicant is permitted to be his own lexicographer by defining the signifier in terms of the signified and the coding.

    STEPS DIRECTED AT FUNCTIONALLY ABSTRACT SIGNIFIERS SHOULD SATISFY 101.

    On the other end of the scale there are inherently abstract signifiers, which are NOT the result of abstraction performed in any previous claim step. This does not require their abstract quality to be absolute (if that is even possible), only that the abstraction step is not described within a previous claim step.

    STEPS DIRECTED AT INHERENTLY ABSTRACT SIGNIFIERS SHOULD NOT SATISFY 101

    At this point people may ask: Well, why must the abstraction be described in a claim step, why can’t the applicant just describe it in the spec and still be his own lexicographer? Or better yet, use an abstraction that has a universally-agreed-upon meaning in the relevant art? Well, both Benson and Diehr effectively require a patent-eligible process to begin and end with a particular article—they both describe a process as the transformation of an article. Remember, the invention is defined by the claims—hence the complete description of said transformation must necessarily be contained within the claims. Any such transformation requires some change in the article. To determine if there has been any change, the initial conditions of the article must be known as well as the acts performed upon said article—more precisely, the initial conditions must be described in the claim—not necessarily their specific magnitude or anything like that, but sufficiently well that the TRANSFORMATION is evidenced.

    Transformation requires an initial form, a final form, and a path connecting the two. Hence to be patent-eligible under Benson and Diehr, A PROCESS CLAIM MUST CONTAIN AN INITIAL FORM, A FINAL FORM, AND A PATH CONNECTING THE TWO.

    What about the situation where initial form (conditions), abstraction to a signifier, and acts upon the signifier are all described in the spec? Would action upon, and subsequent transformation of, the signified not be “necessarily implied”, and wouldn’t this be sufficient to satisfy the requirement that the transformation be evidenced? After all, actions upon the signifier necessarily result in actions upon the signified, do they not?

    The answer is NO, they do not. The signifier MUST be translated back into the signified in order for transformation to take place. You can do all the manipulation you want of the signifier, but until the decoding and action upon the signified has taken place, there is no necessary transformation of the article—after all, one can perform many calculations and do nothing with the result. The final step in the claim must describe this action in order for the required transformation to be necessitated.

    It may be helpful to allow the necessary implication that actions performed upon a signifier, where the initial conditions and abstraction are described in the spec only, would effect a transformation in the signified if operable decoding and output were employed. That would allow some economy in claiming, but the last step would need to be action upon the article. This would further allow art-specific operational definitions, which define abstract concepts in terms of the procedures used to measure those concepts, to be incorporated more easily.

    Ned—

    Decisions are not immune from logical and legal inconsistency, even by their own terms. Since you mentioned Arrhythmia first, I’ll deal with it here.

    In the Arrhythmia decision, Newman J. makes what I consider to be a classic statement: “The electrocardiograph signals are first transformed from analog form, in which they are obtained, to the corresponding digital signal. These input signals are not abstractions; they are related to the patient’s heart function.” Classic! They’re not abstractions, but they’re related to the patient’s heart function? THAT “RELATION” IS EXACTLY THE ABSTRACTION OF UNDERLYING PHYSICAL PHENOMENA IN A PATIENT’S HEART MUSCLE INTO THE REALM OF A TIME-VARYING VOLTAGE. She demonstrates her intuitive but unrecognized understanding of this by her characterization of them as “signals”. She is inarticulate and just plain wrong, by her own terms.

    She further goes on to state that “These claimed steps of “converting”, “applying”, “determining”, and “comparing” are physical process steps that transform one physical, electrical signal into another.” She assumes what she sets out to prove, using In re Taner as support for a proposition that it did not advance. Rubbish. The decision is wrong—what is the specific and substantial utility of “analyzing electrocardiograph signals”, or of “determin[ing] the presence or absence of a predetermined level of high frequency energy in the late QRS signal”?

    NOTHING. THOSE ACTS HAVE NO PRACTICAL UTILITY, ONLY POTENTIAL UTILITY. THE OUTPUT OF A PROCESS IS STILL MERELY A SIGNIFIER. THE LEVEL OF HIGH FREQUENCY ENERGY IS SIMPLY A SIGNIFIER OF A PHYSICAL CONDITION OF THE HEART MUSCLE THAT PRODUCES VENTRICULAR TACHYCARDIA.

    Combining the signifier with previously-defined knowledge of the fact that administration of certain drugs can act upon the physical condition of the heart muscle to avoid ventricular tachycardia can turn the output form of the process into a sign, which is to say that the signal, combined with previous knowledge, suggests automatic action upon the signified (heart muscle).

    There is only utility at such time as the physical condition of the heart muscle is transformed from one that produces ventricular tachycardia to one that does not produce ventricular tachycardia.

    ALL THESE CLAIM STEPS LIKE MONITORING, DETERMINING, COMPARING, ETC. HAVE NO ACTUAL UTILITY, ONLY POTENTIAL UTILITY.

    Simson’s claim in Arrhythmia was not patent-eligible under 101.

    NAL and Ned–

    I’m at a loss to understand how you can disagree with the conclusion that a SIGNAL is a hybrid concept and is not corporeal, or physical. You are ignoring a well-established field of human inquiry made by Saussure, Lacan, Barthes, and others, much the same as the judiciary seems to ignore it. It is YOU and NAL who are making up your own definitions, or simply following the lead of blind justices who are making up their own definitions in total disregard of the field of semiotics.

  118. 465

    “All three groups are highly motivated, highly intelligent, and scared that Bilski will mean no money, no way to protect thier invention, and frankly, no motivation for them to do anything.

    In fact, I’ve been getting paid to consult with clients on whether it is even worth filing applications and go forward with companies because of Bilski. ”

    Lobby congress? I mean seriously Night, if it’s that bad and has all of these “horrible” consequences including a whole sht ton of companies not being made then L O B B Y C O N G R E S S.

    I’m curious about one thing though Night, why should we care if a company who can’t invent (save perhaps a “business method”) anything gets started? We have a lot of companies now that people btch and moan about since they “never” invent anything. At least on this board they do.

    And you know, throughout history we had a way to determine if a business method was novel, non-obvious and desired in the marketplace. You started your business and saw if it went or not.

  119. 464

    *******Simply assuming that it exists before it is observed “just because” is simply not acceptable and that is what the standard model does. *********

    Neither is assuming the opposite. And far be it from me to argue that things can’t spontaneously exist, and all things must flow from casuation. However, the view that the particle comes into existence as a result of introducing one of the causes of it being observable seems less parsimonius to me than the alternative.

    For example, take the double slit, one electron at a time experiment. You are basically saying that the electron comes into existence as a result of the interacting causes of the electron emitter, the slits, and the photons. Without the photons, wave behavior is observed. With the photons, particle behavior. The position of the electron source/shutter and the sizes and positions of the slits govern the electron position probability. But if the photons are a cause of the electron’s existence, why does variation in the intensity, source position, wave length, etc. of the photons not affect the position probability of the electrons? I just don’t find it persuasive.

    That is why I find it a more parsimonius explanation that the electron exists even in absence fo the photons that render it observable. The photons just change it the way a needle changes a bubble. And when you stab a bubble with your beady little needle eyes, it does not matter how long or sharp the needle is, or the guage of its steel. The bubble pops as it pops, every time. And if it only unpopped and went on its merry way whenever you turned away your head, perhaps you would think the drop of fluid you observe only exists if and when you direct your gave upon it.

  120. 463

    Why is it too,that the groups of people that actually build companies and create thousands of jobs must tolerate such nonsense.

  121. 462

    We know that you think that it is so easy to write a program for recommending movies, yet you don’t feel like collecting your million dollars. But you are sure it has can be done it is just a matter of doing the grunt work. Kind of like building a car has to do with metal and gas.

    Wankers. Wankers.

  122. 461

    Well, baboon, what do you know? Your dung smells and your armpits are full of angels that spin counter clockwise and clockwise. What else do you know?

  123. 460

    What amazes me about this thread looking back on it, is that so many people are willing to opine on this issue. Yet how many of you actually work with real inventors who want to protect their inventions so that they can get money to fund companies? I have worked with three such groups of inventors recently.

    All three groups are highly motivated, highly intelligent, and scared that Bilski will mean no money, no way to protect thier invention, and frankly, no motivation for them to do anything.

    In fact, I’ve been getting paid to consult with clients on whether it is even worth filing applications and go forward with companies because of Bilski.

  124. 459

    Night, I daresay it does look like that. So what? Siblings fight each other. It’s natural. Apart from anything else, it increases their chances of surviving till they get to the age at which they can reproduce. Hooray.

    Does it matter? Well, Scottish law is different from English law. Bear that in mind when it’s an oil industry patent on your desk.

  125. 458

    MaxDrei, does it matter which one of those? From the outside you look like a bunch of fighting brothers and sisters.

  126. 457

    Hairy Houdini,

    LOL

    However I think you are wrong.
    Recent experiments at the Hadron Collider have shown they are made of Scotch tape, bubble gum, Elmer’s Glue and melted chocolate and they are called McGrubberetts.

    Also Schrodinger’s equation forgot to account for the McGrubber principle. It says that when 6’s skull approaches a 6 foot thick brick wall at near light speed, other rules of physics cease to exist and his skull tunnels right through the wall to reappear unharmed on the other side with a 95% success rate. The stuff inside the skull doesn’t make it through that often, but then again, that is an insubstantial change and the function results and results afterwards are substantially unchanged. So no need to pay attention to that insignificant side effect. ;-)

    (Max: that winky emoticon means don’t take me seriously here)

  127. 454

    IBP, I think a number that is not physical but represents something real is patentable without a final step. Thus we have Arrhythmia, Mayo and Halliburton and any test or measurement of something physical that produces a signal. One would infringe by perfoming the test, measurement, etc., without there being any necessity of a final step of using the signal for the purpose.

    I further think that if the signal is real and physical, such as the telephone signals patented in long ago, they are also patentable as articles of manufacture – they are physical things made by man.

    This really is not rocket science.

    Bilski though is a problem. Here we have a method of balancing risk where the only thing new is the mathematics. Risk is not physical. Yet act of balancing has great real-world utility. Refusing patent protecting to such methods essentially forces the innovator into a trade secret mode of protection, which hardly benefits the public because there is no disclosure.

    We need a way forward, IMHO, that would allow Bilksi type inventions to be patented. We might also have to allow mathematicians to be patent agents.

  128. 452

    That’s kind of dmb IBP, you should have tangible steps only. No abstract steps allowed imo, at least in so far as they are allowed to distinguish over the prior art.

  129. 451

    “Electromagnetic signals are manufactured by machines. ”

    You’re stretching words again Broje. They’re not really manufactured.

    “The Nuitjen majority even recognized that fact ”

    They recognized that viewpoint, it isn’t really a “fact”.

    The “fact” of the matter is that they bent over backwards to lend credence to outrageous arguments, as the CAFC is too often want to do. Set that nonsense in front of the USSC, I double dog dare you. It is as if you have to go all the way to the top to get a court that isn’t so interested in patent protectionism that they’re interested in even addressing such nonsensical notions.

    “by hook or by crook, the desired conclusion.”

    I think you mean the “correct” conclusion, so as to avoid having their nonsensical opinion torn to shreds by the USSC.

    “No, it’s that the electron does not have a position until observed. It travels in the form of a wave until it is “observed” and reacts by collapsing into a particle.”

    You can stick with your antiquated “standard” interpretation. I will go with either Mr. Hawkings or Einstein on this one. That’s despite my not being a huge fan of Mr. Hawkings’ views on time as “time” is plainly, in my heavily influenced view, an imaginary construct we have erected for ourselves to explain the order of events around us.

    If not pressed, then I’d stick with Einstien’s view that the equations simply aren’t for the one electron situation and instead are only for a collection of experiments.

    But if pressed to apply it to a single electron case then I’d go with the “subjective” interpretation that is similar to the “statistical” interpretation espoused by Einstien. Specifically, I’ll go with the view that the electron, as a phenomena, is only a probability function until a particle is observed, and there is no particle until “we” “make” one. To believe otherwise takes on faith that the particle exists when the probability function itself dictates in no uncertain terms that there is a good chance in many positions at any given time that it doesn’t. So far as I can tell, if you can’t figure out where a particle is, then for all intents and purposes that particle doesn’t exist, the only thing that exists is a statistical probability that it could, or could not exist at any given point. Simply assuming that it exists before it is observed “just because” is simply not acceptable and that is what the standard model does.

    But in any event, I’m satisfied with your understanding of the situation, if not happy that your “standard” view still pervades the field to an extent even though the multi-world approach Hawking espouses is more or less taking over. And if I had to pick between Hawking’s multi-world and the standard interpretation then I’d go with Hawking. Then again, a plurality of approaches is healthy I suppose.

    NAL, isn’t that what the courts do?

  130. 450

    “And we can’t even say for sure what the so-called fundamental particles that the protons, electrons and neutrons are made of are actually made of themselves.”

    They’re made of tiny nanoparticles of foil, string, chewing gum, and duct tape. Collectively these particles are known as MacGyverlets.

  131. 449

    “And we can’t even say for sure what the so-called fundamental particles that the protons, electrons and neutrons are made of are actually made of themselves.”

    They’re made of tiny nanoparticles of foil, string, chewing gum, and duct tape. Collectively these particles are known as MacGyverlets.

  132. 448

    IBP,

    Pedantic semantics.

    You set the rules you want to arrive at the conclusions you want.

    That’s 15 words to cover your 1,386 words of your last two posts.

  133. 447

    You know, even in Flook, Stevens J. writing for the court favorably cited Tilghman v Proctor for the proposition that a “patentable ‘process'” is a “conception of the mind, seen only by [its] effects when being executed or performed”.

    Q: How do we determine if a process is patentable under 101?

    A: We divide process steps, or acts, into 2 categories: 1) tangibly (corporeally) manifested, and 2) intangibly (incorporeally) manifested, and then check to see that at least both the first and last steps of the process are of the tangibly-manifested, or corporeally-manifested, kind; if they are, the process satisfies 101–if they are not, the process does not satisfy 101.

    Let’s consider 2 different process steps to illustrate the above: a) the act of REMOVING (as in removing material by machining), and b) the act of DETERMINING (as in determining which of 2 temperatures is greater).

    REMOVING is a tangible step, while DETERMINING is an intangible step. A simple test to make this determination (ha!) could be something like considering the noun upon which the verb operates: “removing…material”, while “determining…relative magnitude”. Material is corporeal, whereas relative magnitude, or even just magnitude, is not.

    I don’t think there are necessarily any hard grammatical rules here, the determination of tangible or intangible rests upon the context in which the verb is used. Precision in language is required–something in which all of us patent attorneys should be expert.

    Really think about this construction, and you will see how it could work. AT LEAST BOTH THE FIRST AND LAST STEPS OF THE PROCESS MUST BE OF THE TANGIBLY-MANIFESTED, OR CORPOREALLY-MANIFESTED, KIND.

    Intervening steps could be of either kind or both kinds, in any combination.

    They could be “concrete” or “abstract”, it doesn’t matter, so long as any abstraction is included as a step–for instance, if you describe your coding, any manipulation of a resulting signifier is equivalent to manipulation of the signified, just maybe easier, or faster, etc..

    BUT THE FINAL ACT MUST BE PERFORMED ON THE SIGNIFIED.

    SIMILARLY, I THINK THAT THE FIRST ACT MUST BE PERFORMED ON THE SIGNIFIED, AND ANY SUBSEQUENT ABSTRACTION MUST NECESSARILY BE INCLUDED AS A STEP.

    If the first and last steps are tangibly-manifested, the loop can be closed–it doesn’t matter if the signified is abstracted for a while during the process.

    I said before that an ALGORITHM is not abstract when it includes a final step that includes a numerical solution that signifies an amplitude, a direction, a combination thereof, or a set thereof, of either a tangible object or a value on a standardized scale that is itself a signifier of an underlying physical phenomenon (e.g. temperature), and when the signified is acted upon automatically as a result of said numerical solution.

    Physical action on an object would be required for non-abstraction, and there could be no decision-making step between the solution and the action–it would have to be automatic. Thus, the action would necessarily have to be incorporated into the algorithm as an essential step. That is why THE FINAL ACT MUST BE PERFORMED ON THE SIGNIFIED.

    I think that the first act must also be performed on the signified to justify any subsequent abstraction, and to definitively establish the correspondence of any resultant signifier with the signified. For instance, if you need to know the dimensions of a block you will be machining, you will do something physical such as bringing a calibrated rod into contact with a relevant linear portion of the block, or bringing the stylus of a surface profiler into contact with the surface of the block. Any resulting number or set of numbers are then signifiers that have a defined relationship with the signified, which earns any manipulations of those numbers or sets of numbers a pass, provided that they are decoded back into a tangibly-manifested or corporally-manifested act. THUS, THE FIRST ACT MUST BE PERFORMED ON THE SIGNIFIED IN ORDER TO JUSTIFY INTERVENING STEPS THAT ARE PERFORMED ON ANY SIGNIFIER.

    So, even though all processes and their steps are “conceptions of the mind”, patent eligibility of those processes under 101 can still be meaningfully and consistently assessed.

  134. 446

    ******in the electron wave context it isn’t so much that we don’t know where the electron is until they are observed, it is moreso a concern within the art currently that the electron very well may in fact not exist until it is observed. *********

    No, it’s that the electron does not have a position until observed. It travels in the form of a wave until it is “observed” and reacts by collapsing into a particle. It is sort of like the a bubble collapses into a drop of water when popped, to use an imperfect analogy. The word “observed” is a bit misleading, because no sentience is required. It’s just that we have no way to measure the electron without causing it to interact with something else, thus causing the waveform to collapse. Happy?

  135. 445

    **********They are ineligible because there is no statutory class for them. Plainly from the outset “manufacture”, “machine”, “composition of matter”, etc. does not encompass signals. No “analysis” is even required to anyone with a head on their shoulders. **************

    What is a “manufacture” except something that is manufactured? Electromagnetic signals are manufactured by machines. The Nuitjen majority even recognized that fact explicitly, but then bent over backwards to require an “article of manufacture” instead of just a “manufacture.” Then they took an even further restrictive definition of “article” to reach, by hook or by crook, the desired conclusion.

    *********I didn’t know that TV signals were subject to copyright. I doubt they are********

    lololololololololololololololol

  136. 444

    Well broje, your position that they would be is even more funny and we can’t have it both ways now can we?

    Btw, I believe you are misunderstanding, or mischaracterizing my position regarding why signals aren’t patent eligable a bit. At the outset, I would correct you in so far as I don’t believe they are ineligible simple because they are intangible (even though the Nuijten court held thus), or because we don’t know their precise position until they are observed (i’m not even sure where you got that last part from). They are ineligible because there is no statutory class for them. Plainly from the outset “manufacture”, “machine”, “composition of matter”, etc. does not encompass signals. No “analysis” is even required to anyone with a head on their shoulders. The definitions of the words themselves immediately cause one to realize such a thing unless one is straining to drop them into the product category. There is no reason to strain to put them therein. And I’m sorry but the “entitled to unless” in 102 doesn’t kick in until 101 is satisfied. It is up to the applicant to satisfy 101 convincingly at the outset. That simply doesn’t happen in the context of signals.

    Btw broje, in the electron wave context it isn’t so much that we don’t know where the electron is until they are observed, it is moreso a concern within the art currently that the electron very well may in fact not exist until it is observed. I know, I know, doesn’t make much sense. But if you go through the derivation it will make more sense.

    I have to admit though, I didn’t know that TV signals were subject to copyright. I doubt they are, but then again I have no experience in that field.

  137. 443

    Congratulations, IBP – that appears to be a coherent theory, and worth thoughtful consideration. But I bet that doesn’t prevent you from being “assailed.”

  138. 442

    Night, would that definitely be English, and definitely not Welsh, or Scottish, from the Republic of Ireland, or anywhere else on The British Isles?

    MaxDrei’s comments read best in a Cockney accent. ;)

  139. 441

    A SIGNAL IS NOT A PHYSICAL ARTICLE. IT IS A CONCEPTUAL CONSTRUCT.

    The majority in Nuitjen said many things, fumbling around for a workable formulation. Concrete, tangible, physical, article, information, encoding, signal, all sorts of things were discussed.

    They were entirely inarticulate when they said that “A transitory signal made of electrical or electromagnetic variances…is physical and real”. ELECTRICAL OR ELECTROMAGNETIC VARIANCES BY THEMSELVES DO NOT CONSTITUTE A SIGNAL–THEY MUST ALSO BE SENSED AND INTERPRETED, AND THEIR DISTRIBUTION IN TIME AND AMPLITUDE MUST COMPORT WITH A CODE . The majority in Nuitjen tries to acknowledge this by fumbling around with half-baked concepts, when they later characterized an electromagnetic “transmission” rather than a “signal” as “physical and real”. What is “real” according to them, the signal or the transmission?

    Electron energy levels can be changed in compliance with a code that encodes information. Those energy levels can be used to affect neighboring electrons, which effects a transmission of the information. Those energy levels can also be used to produce an output that is perceptible by whatever it is that is intended to make use of the signal.

    THE ACT OF TRANSMISSION IS NOT PHYSICAL–IT IS AN ACT, A HIGHER-ORDER CHARACTERIZATION OF A SERIES OF LOWER-ORDER PHYSICAL PHENOMENA.

    (Physical TRANSLATION, on the other hand, is physical.)

    THE SIGNAL IS NOT PHYSICAL, IT IS A HYBRID CONCEPT, REQUIRING A SENSIBLE PHENOMENON, PHYSICAL SENSING, AND INTERPRETATION.

    So, neither the signal nor the transmission is physical.

    Their discussion was unnecessary and confusing, as they later proceed to further describe a transmission as “not a device, machine, part, commodity, manufacture, article, or composition of matter”, and as “intangible”. No kidding.

    I repeat: An ALGORITHM is not abstract when it includes a final step that includes a numerical solution that signifies an amplitude, a direction, a combination thereof, or a set thereof, of either a tangible object or a value on a standardized scale that is itself a signifier of an underlying physical phenomenon (e.g. temperature), and when the signified is acted upon automatically as a result of said numerical solution.

    This is what the court couldn’t formulate in Nuitjen, and what they were TRYING to articulate in Gottschalk v Benson, when they said things like “…an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing…”. Their language confuses discussion, leading people to wonder whether a change of state in a gp computer is a sufficient transformation and, if so, whether thinking about the same process is an infringement. Clearly an absurd outcome.

    The concept of ABSTRACTION is an easy one with which to deal. “To abstract” , as a verb, can be defined simply as “to take away”. That is exactly the step that occurs when a signifier (sign) is attached to a signified. Consideration of the signified has been taken away from the realm occupied by the signified, to the realm of the signifier (sign). As long as you are dealing with a signifier, you are in the realm of the abstract—concepts abstracted from another realm for sake of ease, economy, convenience, aesthetics, whatever.

    Someone observing a vacant restroom would directly perceive its state as vacant. On the other hand, some sensor can perceive the state as vacant, translate that state information using a code into a sign (varying voltage), and that sign can be transmitted, translated into a signal (a form of sign capable of perception and interpretation) which is transmitted, received, perceived, interpreted, and thereby decoded back into the signified. As long as the representation of reality is in the form of a sign or signifier, said representation is ABSTRACTED from directly perceptible reality.

    Any such process entirely acting upon signs or signifiers is therefore abstract.

    That is why courts speak of the requirement that the ACTS of a process be performed upon a SUBSTRATE.

    101 outcomes:

    Programmed machine = patentable article

    Process it performs from input to output (transfer function) = not patentable process

    Sensing of state of real condition + coding + process on programmed machine + decoding + acting to change the state of the condition = patentable process

  140. 440

    Night, would that definitely be English, and definitely not Welsh, or Scottish, from the Republic of Ireland, or anywhere else on The British Isles?

  141. 439

    6, your position that electromagnetic signals with content having practical utility aren’t eligible for patent protection because they are not “tangible” or have no position until observed is tantamount to positing that television signals are not subject to copyright protection because they are not in a “fixed form.” Please make me laugh some more.

  142. 438

    “So what keeps the two solid objects apart? What is actually touching when two physical objects touch? The electromagnetic fields produced by the electron clouds of the atoms of the objects. Electromagnetic fields, and the fields of the other fundamental forces of nature, are not just real and physical, they are the very stuff of macroscopic physical reality.

    Get real.”

    Your explanation is a little old. I suspect you’re not aware of the more recent, and perhaps a little more advanced from a subject matter perspective, studies pointing to electrons not being little balls that are electrically charged and existing in a cloud, but rather electrons existing as a wave. A probability wave to be exact, one which determines whether or not there is a good chance for a “charged little ball” will be present at a location at a given time.

    Nevertheless, you didn’t tell me anything I don’t already know. What was that supposed to “help me understand”? Perhaps that anything solid colliding into something else solid is considered “physical” because of the effects it has on other things? Nay sir. Materiality, tangibility, physicality, they are all part and parcel and none of them depends on whether or not they have certain effects on other things. They depend on what the true nature of the thing in question is.

    In any event, I do believe you were off on one little thing. Perhaps you might go into more detail about how EM fields from electron clouds are what are actually keeping the atomic structures apart from one another in a normal solid on solid collision. Or maybe you won’t, because, at least in a non-exotic, normal setting, I doubt if that is even occurring at any meaningful level. Do you even understand what the term “electromagnetic” means? Do you know how such a field is produced? I assure you that there is either no, or very very very little EM field present when I push a box on my desk into another box. And that EM field, if there is any, is acting in the circumstance to a negligible degree.

    Since I’d like to help all of you “understand” this a bit more, I’m going to give you this link to an absolutely gorgeous explanation of these subjects which I recommend all of you read.

    link to www-istp.gsfc.nasa.gov

    That’s about electron probability waves and what they “are” in so far as they are anything.

    And here is the introduction to the piece:

    link to www-istp.gsfc.nasa.gov

    Noise you’re welcome to your opinion, but since it just so happens that my physics book in my hand supports everything I say and have said you might want to reconsider. But that’s up to you.

    What are you begging me to explain Noise? The wave-particle duality of light? Be specific as to what you want to know because I prefer to not type all day.

    And broje perhaps, perhaps.

    If one of you wants to trade me your Chisum for my physics book for awhile then I’ll do it. It seems we will both stand to benefit greatly. I’ll get to see what nonsense is going on in the legal world and you guys can see what nonsense is going on in the physics world. He ck, I’ll even throw in my modern book and a couple of more adv. volumes I have to sweeten the deal.

  143. 436

    6, I’m happy for you and ima let you finish, but MM is one of the greatest trolls of all time. OF ALL TIME.

    Meanwhile, I think we are conflating the judicially carved out exceptions to 101 patentable subject matter eligibility with that which is not patentable subject matter under 101. Those exceptions, like printed matter, do not tell us the definitions of what is not patentable subject matter under 101. They tell us specific exceptions of things that otherwise meet that definition. The justification for those exceptions lies in the bill of rights, which is where freedom of speech comes in.

  144. 435

    Hey 6, think about this – because I truly want to help you comprehend.

    When you push one solid, physical object against another – say your head and a brick wall – what’s actually happening at the head/brick interface? The solid matter of your head is butting up against the solid matter of the wall, yeah? What is matter made of? Atoms. What are atoms made of? A tiny nucleus of tiny protons and neutrons surrounded by a cloud of even tinier electrons, the electrons occupying a space about 100,000 times larger than the nucleus. Solid matter is almost entirely empty space. And we can’t even say for sure what the so-called fundamental particles that the protons, electrons and neutrons are made of are actually made of themselves.

    So what keeps the two solid objects apart? What is actually touching when two physical objects touch? The electromagnetic fields produced by the electron clouds of the atoms of the objects. Electromagnetic fields, and the fields of the other fundamental forces of nature, are not just real and physical, they are the very stuff of macroscopic physical reality.

    Get real.

  145. 434

    Noise you might be interested in the recent newspaper reports of the invention of a new punctuation mark for including at the end of a remark, called (if I remember aright) the “SarcMark”. It looks rather like the Ampersand we see in an email address and indicates “the foregoing is intended to be read as a sarcastic remark”. Its inventor makes available a handy little download to implement it. He anticipates huge demand (he must have been following the Crouch blog !?!@).

  146. 433

    Are you suggesting that England is part of “Europe”? Are you suggesting that, when it comes to patent law, Germany is the only part of Europe that’s any good? I don’t understand.

    And, don’t worry, your G0d will surely help America. He usually does, doesn’t He, at least to the same extent, if not more, than other countries’ G0ds help them.

  147. 432

    Ah, but in Europe, we post merely for fun and without engaging our critical faculties – as such and per se.

    /off sarcasm

    and 6, I asked you to explain, not cop out to some quote to Wiki (as more often than not your quotes to Wiki do NOT support your position). Let’s see you use your burgeoning language skills as you compose a thoughtful response.

    Your grandiose pomposity notwithstanding, I think Michael R. Thomas knows more about physics than you do. He does have more credibility.

  148. 431

    And, MaxDrei, as well you know, in Europe this is not a settled issue by any means.

  149. 429

    Night, thanks for bringing the thread back to the original subject, namely whether a claim to a programmed computer satisfies 101. On that, there is nothing to discuss, in Europe. Perhaps that’s why the thread degenerated into a discussion about the patentability of algorithms, as such.

    But then again, perhaps not.

  150. 428

    And, if machines to produce pharamceuticals were readily available, then would you say it was a violation of your first amendment rights to prevent you from programming the machine to produce any pharmaceutical that you wanted?

  151. 426

    >>One might surmise that computer programmers >>view their code as a way that they “speak” to >>each other and they view patent laws as an >>abridgment of their right to speak their mind >>as freely and as fully as they wish.

    Step, you might ask yourself how computer programming is any different than say building an electronic device. I think the only difference is that the means of producing the product has greater availability.

    A patent on a device prevents me from building it in my basement workshop and sellling it.

    I could physically perform the method in Deener with my body.

  152. 425

    Step and Hagbard, nice thoughts. Nice speaking. The exclusive right is to restrain actions, including making, using, vending, importing, keeping, but not including writing and speaking.

  153. 424

    step,

    I appreciate your attempt at reconciling what the 101 question is about.

    However, given the length of the thread already, and the persistent shields wielded by certain posters, any step back to evaluate the bigger picture is doomed to failure.

    I recognize the position that you offer as to why computer programmers may “feel” that their rights are abridged, but I would counter that such feelings simply have no place in Patent Law. Computer programming is not done to converse, nor are programs written and composed merely for artistic value. They are done for a purpose. It is that man-made, or rather man-chosen purpose that is at the root of what is being patented. Computer programming is merely a man-made tool used to get there (in this snese, I include processes as tools). All man-made tools are patent eligible (while patentability accords to the rest of the law and must be examined on a case by case basis). Eligibility as the 101 question has a quite clear answer. Some simply refuse to see the light.

    It is a clear obfuscation (I love putting those two words together) to even bring into the conversation the topic of patents preventing free thinking. Thinking never has been and never will be prevented by any patent. Such is simply not possible in the Law. To think so otherwise is merely to pursue a false agenda or is done so in utter ignorance; and as is evident by the posts on this thread from the shield-bearers, there is no shortage of either.

    Malfunction Junction, what’s your function? – clearly, you do not understand patent history, otherwise the inanity of your desire for Congress to say “oops” to an entire class of patent-eligible subject matter would not have been typed.

  154. 423

    Ideal case: Congress says “oops” and strikes the word “process” from 101.

    Workable case: the courts limit method eligibility to only methods of making a product that is itself patent eligible.

    Any other case: we are stuck with a mess similar to the current mess.

  155. 422

    Agreed, patent rights should not restrain freedom of thought or speech. Patent rights are about restraining freedom of ACTION, particularly commercially valuable actions. The debate is about what kinds of actions are eligible to be restrained by the grant of a patent.

  156. 421

    At the end of the day, everything in this corner of the multi-verse is subject to the local laws of nature.

    But that is not what the 101 question is about.

    Rather, there is an inherent clash between civil rights concepts like freedom of speech, freedom of religion, etc. and the rights conferred by patents to exclude other people from engaging in certain activities.

    Certainly, freedom of speech implies freedom of thought. How can you speak freely (a physical act) without being allowed to think freely?

    One might surmise that computer programmers view their code as a way that they “speak” to each other and they view patent laws as an abridgment of their right to speak their mind as freely and as fully as they wish.

  157. 420

    Nice conjunction of the last two postings. I mean:

    A mental act (as such) is perceptible (well, to one person at least) and is subject to the laws of nature.

    The fantastic new and useful thoughts which that person generates by that mental act, however. The scientific output of Stephen Hawking, for example. Equations, algorithms, logic, etc. Are they physical? Surely not.

  158. 419

    “Try this on for size when you think “physical”:

    2 a : having material existence : perceptible especially through the senses and subject to the laws of nature b : of or relating to material things”

    Yah, like light and sound, whether naturally occurring phenomena or man-made signals

  159. 418

    Is a series of mental acts performed to answer a question or solve a problem an “algorithm”? The answer is yes, of course. Are such algorithms patentable? According to AI, the answer is no, unless those mental steps are accompanied by a “movement of an external organ.” Do I have that right, AI/NWPA/NAL?

    Still waiting for your answer to this simple request for clarification of your earlier comment in this thread, ABA. Is there a problem?

  160. 417

    Intangible, not physical, same thing broj. Splitting a non-existent hair won’t make any difference. Arbitrarily changing the meaning of “physical” to encompass things where “there may be something physical ABOUT x object” and that’s all isn’t going to help your position in re the “confused” judges. Just because there is perhaps “something physical about them” doesn’t mean those things are “physical”, it means that there are things physical about them. Specifically, the effects they cause on other things would be one such thing. The judges are most certainly not confused one bit.

    Besides broj, I thought your position was that judges were confused about this? Now you’re citing caselaw?

    Btw, if you want a better piece of caselaw read through Nuijten a bit better.

    “A transient electric or electromagnetic transmission does not fit within that definition. While such a transmission is man-made and physical—it exists in the real world and has tangible causes and effects—”

    There’s you a gem of a nonsensical way to define “physical”. “Exists in the real world and has tangible causes and effects”. Let the USSC get its hands on this one. “Tangible” etc. would have been the first things out of their mouths and they’d have written this case up in less than a few pages. Shame it didn’t get to the Supremes imo.

    Try this on for size when you think “physical”:

    2 a : having material existence : perceptible especially through the senses and subject to the laws of nature b : of or relating to material things

  161. 416

    “and by the way, even the claimin Benson has other practical applications than the specific one claimed – I cna think of translation machines that are not purely binary nor analog to begin with).”

    You probably don’t even know what the algorithm which you claim to be able to come up with other practical applications for is. Go ahead, admit that you don’t.

    “And what definition of momentum are you suggesting 6? you might have trouble finding any definition other than mass times velocity. ”

    I’m suggesting the momentum which light, a presumptively massless photon, has does not arise due to it’s mass. Kind of like all the leading theories on the subject do.

    Discussing physics with you boobs is like discussing it with my dad. He loves to read about it. Sci Amer magazine is probably his fav and he reads all manner of books on the subject. He also loves to talk about it. Yet he can’t be bothered to go and take some physics classes.

    Look, even a wiki can answer your questions about light.

    link to en.wikipedia.org

    Look here about the E of a given photon. And also how to find the accompanying momentum.

    link to en.wikipedia.org

    Look here about the mass of a photon

    What I have been, probably unsuccessfully, trying to tell you mo rons, is that quantum physics has little to do with things like momentum equaling the mass, in the classical sense, times the velocity. This is due to the types of particles oft being discussed. And it is also due to mass and energy being simply two forms of the same thing. Photons demonstrably do not have a mass that would be suggested by those simplistic equations. If anything the mass of a photon is nearly inconcievably small. It is so small that it is reasonable to believe that it isn’t going too far to believe it to be 0. Nevertheless the particle has energy and it has momentum. It might be more precise to say that a photon *is* energy and has an associated momentum.

    Let me be quick to point out for the more dim-witted or ignorant amongst you, just because something is energy doesn’t mean that it is simultaneously mass, or has a mass associated with it (save for when it is “transformed” by colliding with other particles or other situations).

    If you desire a more detailed explanation I’m sorry, but it is a lengthy derivation for any of those principles which I don’t want to look up or find in my old notebooks.

    “For some mind-blowing laughter, let’s have 6 explain the particel/wave duality of nature, or how energy travels through a vacuum, or how plants capture those photons, and yet stick to his persistent shield of ignorance on the physics of light.”

    The wiki explains it pretty well, you can look to your modern physics book for a more comprehensive analysis. I don’t have all day to explain this to you.

    As to my being ignorant on this subject I’m loling at you Noise. I was top of my Modern class and many a physics professor invited me to join their graduate programs. They need students like myself, otherwise they end up with a lot like Broj. Just kidding broj.

    This post written before broje’s last post. I had to copy paste since it didn’t take.

  162. 415

    From Nuitjen:

    See Arrythmia Research Tech., Inc. v. Corazonix Corp., 958 F.2d 1053,1059 (“The view that there is nothing necessarily physical about ‘signals’ is incorrect.”(quotation marks omitted))

    The majority in Nuitjen found that the signal claim at issue was not patentable in spite of the fact that signals are physical. They found them intangigle, and therefore ineligible to be “articles” of manufacture. The dissent took issue with the majority reading in the requirement that the category “manufacture” be an “article.”

    So there you have it under the law. Signals are physical, even if not tangible.

  163. 414

    A baboon tossed some dung:

    >>mathematical algorithms are … laws of logic, i.e., abstract ideas.

    MM, please define abstract for us. Or stop tossing the word at us in your posts.

  164. 413

    ********a procedure for solving a given type of mathematical problem whose sole practical application is in connection with the programming a computer is unpatentable subject matter.

    That’s the law. *********

    So are you admitting that a procedure for solving a math problem that has at least one practical application that is not in connection with programming a computer is patentable subject matter?

  165. 412

    I just want to pay my respects to the Patent Professionals on this blog for taking the discussion back in an honest direction and focusing the debate on science and technology, as I have repeatedly called for. Which, in no small part has effectively shut down the resident troll and rendered all his alias ineffective and mute.

    Special Kudos to NAL for calling out IBP for attempting to be intellectually dishonest and play games in the spirit of said troll, and to Ned for forcing 6 to come face to face with the merits of the argument and face the limits of his intellectually capacity.

    And a special mention to Luke for checking Klingon and proving that no matter the new alias strawmen will simply not be tolerated among the learned and the professional.

    It tis good to know the members of the patent bar that post here have such strong backgrounds in physics, engineering, and information processing and have the collectively ability to advance the debate with a focus and discipline that will no doubt rise to influence the Supreme Court.

    It gives all us Actual Inventors hope that one day soon there will be a more equal and just patent system for all Americans to enjoy and prosper from.
    .

  166. 411

    More straw from Malcolm:
    “whose sole practical application”

    First point – ANY practical application is no longer abstract. A practical application is de facto non-abstract.

    Second point – …so if I can come up with ANY secondary practical application… Hmm, that’s a rather loose standard (and by the way, even the claimin Benson has other practical applications than the specific one claimed – I cna think of translation machines that are not purely binary nor analog to begin with).

    More rope from 6:
    “Perhaps you take the position that it is massless and has merely transfered momentum to the object?”

    And what definition of momentum are you suggesting 6? you might have trouble finding any definition other than mass times velocity.

    D’oh!

    – actually, this is not rope (but the rope from 6 sounds so vibrant), but rather, 6 reverting back to his age-old briar patch tricks of spouting nonsense and hoping someone falls for the crap logic he puts on the table.

    For some mind-blowing laughter, let’s have 6 explain the particel/wave duality of nature, or how energy travels through a vacuum, or how plants capture those photons, and yet stick to his persistent shield of ignorance on the physics of light.

    As far as nonsense from me – 6, you still have failed to show a single instance of it, per my old Patent Docs challenge.

    As far as non-sequiturs – my post highlighted that your own reference (yet again) shows that you are wrong. Thus, your assertion of my post beign a non-sequitur is (gasp) wrong.

    How do you stand to be so wrong so often?

  167. 409

    mathematical algorithms are not laws of nature

    They are laws of logic, i.e., abstract ideas.

  168. 408

    Malcolm, you ALCU card carrier, look at what you just quoted from the Supreme Court. It plainly states that “such an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent.”

    Now, what did I say? I said the holding in Benson, given it illusory, bootstrapping, “wholly preempt” analysis, which is inherent in patents, is that mathematical algorithms are the common resource of all mankind and that no one may patent them. There can be no other rational understanding of Benson.

    But you guys that align with the ACLU god, cannot seem to understand what Benson was actually holding.

    As I have previously said, mathematical algorithms are not laws of nature, but laws of nature may be expressed mathematically. Somewhere in Benson, this distinction was lost.

    What should be done in any proper analysis of a mathematical formula case is to determine whether the formula is directed to a law of nature. If it is not, it should be patentable if claimed in one of the four statutory classes and has utility.

  169. 407

    “In Benson, we held unpatentable claims for an algorithm used to convert binary code decimal numbers to equivalent pure binary numbers. The sole practical application of the algorithm was in connection with the programming of a [450 U.S. 175, 186] general purpose digital computer. We defined “algorithm” as a “procedure for solving a given type of mathematical problem,” and we concluded that such an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent. 9″

    In other words, a procedure for solving a given type of mathematical problem whose sole practical application is in connection with the programming a computer is unpatentable subject matter.

    That’s the law. If only the PTO would apply it.

  170. 406

    “Are electromagnetic signals real or imaginary? You must choose only one.”

    Real. What of it?

    “Are electromagnetic waves physical or purely mental? You must choose only one.”

    Because something is not purely mental means it is physical?

    Look broj, you know as well as I do, the “physical nature of light”, as it is popularly called based on the history of the subject, has been redefined past the mechanical model of the 1600’s and is now presumed to be in the realm of the distinctly intagible electromagnetic. Let us presume that photons exist and modern physics is more or less on point. You cannot grasp a photon. You probably cannot even hold on to one by any means presently known. Perhaps if there was a way to hold on to one, even if we still couldn’t feel light, I might grant you that they are tangible. But that isn’t going to happen in our lifetimes I doubt. Show me a way to do that and I’ll stand convinced. I’m not, after all, inconvincible.

    And fyi I don’t mean so called “trapping” light in a solid body. That’s not really the same as catching a photon itself and holding on to it.

  171. 405

    “I weep. ”

    At least you’ve been listening to me when I tell you guys to cry more. Glad to know you take my suggestions to heart.

    “The content at msnucleus.org seems to be aimed at kids, 6”

    You prefer a more scholarly article on the subject? All you have to do is say so. One shall be granted.

    “The courts and/or congress need to provide clear guidance on what patents are supposed to be for in the 21st century.”

    We can agree on that sir. But you know very well that such a thing happening is more likely than not to never happen, save slowly and incrementally in the courts.

    “What’s up with that?”

    What’s up with what? Obviously that article believes light has mass. Do you align yourself with that belief Big? Which position do you take? Perhaps you take the position that it is massless and has merely transfered momentum to the object?

    “There are a few constants in this world to add to death and taxes:
    Malcolm and his straw and
    6 and his rope.”

    Noise and her nonsequiturs? Noise and her nonsense?

    Which do you prefer?

  172. 404

    IBP

    Thanks for your post.

    I should say first that my comments regarding signals were not intended to be restricted to electromagnetic signals – my subsequent comments re EM waves/fields were directed at 6’s ceaselessly amazing take on the universe that we are privileged to inhabit.

    The etymology of “signal” is not really the point here, but I don’t deny that the word has a number of “meanings”. My point was that by at least one definition of at least one accepted meaning of the word, a signal most certainly can be “physical” and “real”. Methods of signalling can most assuredly be patentable, as can signalling devices. A knottier question is whether a signal “as such” can ever be patentable. My own view is that at least some kinds of signals ought to be patentable; e.g. if the signal – as a thing that can be sensed by an organism or a machine – has “structural” characteristics independent of its information content that are novel and non-obvious.

    I don’t see why a novel system of sign language, or even a novel grammar or language, should not be patentable (a method of inter-personal communication comprising…?) if it was more than merely an arbitrary new coding scheme – say if it was demonstrably easier to learn or provided greater efficiency of communication than prior languages.

    My real point was that neither the statute itself nor the case law to date provides real answers to a number of patent-related questions that are increasingly important in the socio-economic environment of the 21st century, and that no amount of debate, however learned, that takes its terms of reference from those sources can ever be fruitful. The resolution of those questions requires fresh output (signals?) from the sources.

  173. 403

    Stop obfuscating the issue of signal claims with the claim that they attempt to patent the information content alone. They always have a preamble that claims a propagating wave.

    Are electromagnetic signals real or imaginary? You must choose only one.

    Are electromagnetic waves physical or purely mental? You must choose only one.

    If you chose something other than physical and real, I question your sanity.

  174. 402

    Hagbard–

    My one post for the day:

    It is neither fruitful nor appropriate to restrict the definition of “signal” to “electromagnetic signals” (whatever you understand that to mean).

    The word “signal” derives from the French “signal”, which has the basic French meaning of “a sign established by convention”. The term “signal” serves to describe the FORM of a SIGN, and is necessarily a hybrid concept, requiring both a sign AND a convention for its interpretation. The particular form of the sign can either be tangible or intangible, but yes, it must be capable of being sensed and in that strict sense is physical. But the hybrid construct of a SIGNAL is not physical, it is entirely conceptual.

    Essentially a signal is the assignment of a specific meaning to a sign (notice the etymology of the word “assignment”) by arbitrary choosing which, when regularized, becomes convention.

    Can the arbitrary assignment of a specific meaning to a sign have practical utility? Well, there can be utility, within the system of signs and meanings. For instance, say you have a system with a finite number of signifieds and a one-to-one mapping of associated signifiers. Utility within that system could arise from arbitrarily associating a new signifier with two or more signifieds simultaneously. But such utility is not practical, because the any resultant signifier(s) require(s) translation in order to be useful. In certain situations including such translation, that could lead to greater efficiency via increased information density, and hence greater speed of communication of information–compression algorithms come to mind.

    It is here that I will consider revising my original formulation, and include within utility not only physical action upon an article, but the RATE of physical action upon that article. For instance, a more efficient cutting path.

    Although there is linguistic economy to be had here (efficiency or greater speed need not be characterized in terms of minutiae like number of electrons passing a particular point in a particular time), a pure formulation wouldn’t allow it, and would, and could, restrict itself to only the physical manifestation and effect.

    A SIGNALING DEVICE, on the other hand, can have practical utility.

    Here’s a scenario to consider: what if I came up with some totally arbitrary new set of hand signals that had arbitrary associated meanings, which meanings are normally conveyed in day-to-day communications. A new type of sign language, just using different signs.

    Is it patentable?

    It would be new because it would be totally arbitrary.

    It would have specific and substantial practical utility as a system of communication.

    Would it be unobvious? Maybe.

    Assuming none of the signs are the same as existing ones, what would you claim, and why? A method of converting meaning by assigning informational content to a sign that was capable of visual transmission through arrangement of the position of the hands and the digits thereof?

    A method of communication comprising…?

    A set of signals?

    How about going even further, and patenting a new syntax?

    THESE are the basic questions that haunt the analysis of software patents. A worthwhile analytical paradigm already exists, it is sitting around just waiting to be used. The problem is that those conducting the analyses are woefully inarticulate and ignorant due to either sloth or stupidity.

    There MUST BE some artsies on the bench who at one point were formally exposed to the concepts of hermeneutics, linguistics, semiotics, etc… Why haven’t they stepped up to the plate to conduct meaningful analyses using the fine tools already in existence???

  175. 401

    @ Luke – point taken.

    @ Big Guy – LOL @ “The radio concentrates radio waves.”

    @ 6 – Please out yourself just so we can look up your cases and laugh at the ridiculous “prior art” you cite.

    Side note – 400+ comments, THE THREAD THAT WOULD NOT DIE

  176. 399

    “WRONG! A SIGNAL IS NOT PHYSICAL AND REAL!!!!”
    Hmmm – let’s see. I would say a signal, by at least one definition, is something that can be sensed and that conveys information. You have to distinguish between the signal and the information content of the signal. You might say that the signal is the medium by which the information is conveyed or in which the information is expressed. From that perspective the “signal” is absolutely physical and real – it is what gives tangibility to the information that it carries (think “carrier signal”).
    “Electromagnetic fields, as well as electromagnetic waves, are most definit[e]ly not “physical””
    I weep.
    The content at msnucleus.org seems to be aimed at kids, 6, and kids get told a lot of half-truths along the way in their science education. I always try to be civil on this blog, but your subsequent posts regarding “physical” and “energy” beggar belief coming from a patent examiner and wannabe patent attorney.
    Apart even from 6’s obvious shortcomings in smarts department, none of this is going to be resolved by semantic analysis of the statute. The courts and/or congress need to provide clear guidance on what patents are supposed to be for in the 21st century.

  177. 398

    PS, I’m aware that the current topic is related to explicitly mathematical algorithms, but the qualifier seems to get lost a lot of the time.

    Cheers, Luke

  178. 397

    Klingon wrote, in response to AI:

    ‘AI: “We know that an algorithm is not abstract”

    “… claims directed to nothing more than abstract ideas (such as mathematical algorithms) … are not eligible for patent protection. Diehr, 450 U.S. at 185, 209 USPQ at 7; accord, e.g., Chakrabarty, 447 U.S. at 309, 206 USPQ at 197; Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978); Benson, 409 U.S. at 67-68 , 175 USPQ at 675; Funk, 333 U.S. at 130, 76 USPQ at 281.”

    We know that a mathematical algorithm IS abstract’.

    Klingon, I’m not sure you can say that given the exact SCOTUS wording that was employed (the wording you quote is taken from MPEP, I believe). You seem to interpret “claims directed to nothing more than abstract ideas (such as mathematical algorithms)” to mean “claims directed to nothing more than abstract ideas (such as *all* mathematical algorithms)”. But I see nothing to indicate it means anything more that “claims directed to nothing more than abstract ideas (such as *some* mathematical algorithms)”.

    Now let’s look at what SCOTUS actually wrote, rather than MPEP’s paraphrasing:

    What the court actually wrote is that:

    “In Benson, we held unpatentable claims for an algorithm used to convert binary code decimal numbers to equivalent pure binary numbers. The sole practical application of the algorithm was in connection with the programming of a [450 U.S. 175, 186] general purpose digital computer. We defined “algorithm” as a “procedure for solving a given type of mathematical problem,” and we concluded that such an algorithm, or mathematical formula, is like a law of nature, which cannot be the subject of a patent. 9″

    Note that is carefully says “*such* an algorithm (i.e. such as in Benson) is unpatentable”, not that *all* are.

    This is forcefully backed up by the wording of footnote 9:

    “[ Footnote 9 ] The term “algorithm” is subject to a variety of definitions. The petitioner defines the term to mean:

    “`1. A fixed step-by-step procedure for accomplishing a given result; usually a simplified procedure for solving a complex problem, also a full statement of a finite number of steps. 2. A defined process or set of rules that leads [sic] and assures development of a desired output from a given input. A sequence of formulas and/or algebraic/logical steps to calculate or determine a given task; processing rules.'” Brief for Petitioner in Diamond v. Bradley, O. T. 1980, No. 79-855, p. 6, n. 12, quoting C. Sippl & R. Sippl, Computer Dictionary and Handbook 23 (2d ed. 1972).

    This definition is significantly broader than the definition this Court employed in Benson and Flook. Our previous decisions regarding the patentability of “algorithms” are necessarily limited to the more narrow definition employed by the Court, and we do not pass judgment on whether processes falling outside the definition previously used by this Court, but within the definition offered by the petitioner, would be patentable subject matter.”

    So the court is limiting itself to a explicitly narrow class of algorithms.

    Cheers, Luke

  179. 396

    There are a few constants in this world to add to death and taxes:
    Malcolm and his straw and
    6 and his rope.

  180. 395

    “How much mass does light have sir “einstein”? Or, more precisely, what is the currently accepted most probable answer to that question? What then does that tell us about the energy associated with light?”

    But 6, why don’t we go back to that 7th-grade physics web site that you cited earlier: link to msnucleus.org . It says:

    “If you have a radiometer, place it in the sun. Record what happens. Notice that the black and white panels move around. The electromagnetic waves of light are hitting the white panel and pushing the panels. It also demonstrates that light waves have a physical component, pushing is a mass effort. The mass of the light waves reflecting from the white surface cause kinetic energy derived from the potential energy.”

    What’s up with that?

  181. 394

    the real reasoning behind Benson

    This awesome insight from a guy who believes that the main purpose of the ACLU is to “attack Christians.”

  182. 393

    “taking some time out of his day to try to longwindedly explain”

    If it were possible for lightning to strike a blog comment, I think it would have struck this one by Examiner “6 posts in a row” 6K.

  183. 392

    6, I think your point should have been that one cannot patent mathematical algorithms, not because they are abstract (the claims, after all, are directed to machine processes) but because in the minds of the Supremes, mathematics are the common resource of all mankind and that allowing the originator of the algorithm an exclusive right therein would retard, rather than advance the progress of the Useful Arts.

    That is the real reasoning behind Benson. But such reasoning is so patently false as to laughable.

  184. 391

    How many times I have to tell Einstein wannabe’s that just because something is equal, mathematically, to something else, that fact does not mean that they are simultaneously the same thing? Is your chair energy?

    Whom here remembers the most famoose of all EM waves? Anyone? Broje in the back? Light?

    How much mass does light have sir “einstein”? Or, more precisely, what is the currently accepted most probable answer to that question? What then does that tell us about the energy associated with light?

  185. 390

    Even in my stupor, I know that E = mC^2.

    Pretty damm convincing that energy is physical, if not conservative…

  186. 389

    A change in temperature is a physical change

    And you can patent a novel method of changing the temperature of an object, but you can’t patent a novel change in the temperature of an object (even if you “store” a record of the novel change in “symbolic form” on a computer). Nor can an old method of storing information be rendered patentable by virtue of the alleged novelty of the stored information, regardless of how the information obtained.

  187. 387

    EM waves are an example of something that is physical. An example of something that is mental is 6.

  188. 386

    “The issue is whether physical includes energy or only matter.”

    Um no. And your failure to realize this is but further evidence that you don’t even understand what you’re talking about to begin with.

    Physical energy exsits, but it is different than electromagnetic energy.

    “Physical energy” is not really a term used in physics, it is used in fields like physical exersize to provide a measure of how energetic one feels.

    In physics, you could call something’s potential energy its “physical energy”. One might also call kinetic energy a form of “physical energy”. But neither would be so recognized within the field.

    Of course, as a physics major you already know this.

    Now, getting back to the actual issue, which is whether or not electromagnetic energy is physical or not. That is, whether “physical” includes electromagnetic waves. The term “physical” as used in the patent context, or in the physics context, in no way even approaches including electromagnetic waves.

    “How can you say that the existence of physical energy is not at issue? You admitted it exists. You lose.”

    How can I say that the existence of cars is not at issue? I admit they exist. Therefore I lose?

    Wait, wah?

    Or wait wait, how can I say the existence of people is not at issue? I admit they exist. Therefore I lose?

    Let’s do mad libs:

    how can I say the existence of *insert thing that exists but which is not electromagnetic waves* is not at issue? I admit they exist. Therefore I lose?

    Now, if you’d like to change the issue to whether or not “physical” includes only matter or energy then we can. The term could be loosely, and improperly, applied in the field as pertaining to some very limited forms of energy. Mechanical energy comes to mind, though there may be more. Some types of energy however have absolutely nothing to do with the “physical”. Amongst them are electromagnetic waves, electromagnetic fields, and some other more exotic things which I don’t feel like bringing up lest you draw out the conversation by latching onto those.

    “Physical means: objectively perceptible; measurable.”

    Came up with a new dictionary did you? Or did you write this one yourself? Doesn’t matter. Dance all you want, in the context of the patent world, and for the purposes of the analysis you’re going to want to use it for, physical will be excluding EM waves darlin’.

  189. 385

    IBP – it seems to me that you are just making stuff up.

    The electromagnetic signal physically exists. So does a book. So does a computer memory. So does a player piano roll. The fact that these things have message content does not render them imaginary.

    A change in temperature is a physical change, even though it does not occupy volume. How can you cling to the point of view that something must occupy volume to be physical?

  190. 384

    Well, a comment I made failed to post.

    Here again:

    NAL–

    Lighten up. My discussion is at least as worthwhile as those previously had on this thread, and I freely admitted the nature of my discussion.

    Firstly, I’m in favor of method patents.

    I want more certainty and lowered costs in patenting. My suggestions are ways to get there. Small entities are currently dissuaded by rising costs and uncertainty, and I feel that not rewarding them for innovations disclosed and otherwise patentable, or not receiving any disclosure from them at all, or not allowing them to innovate through the blocking effect of granted patents are all injustices that need to be remedied.

    It’s not just fantasy drivel–you need to know where you want to end up and why, before you can get around to figuring out how you can get there. Lawyers need to identify a legal conclusion to which you can lead a judge or jury–not just the ultimate conclusion, but intermediary conclusions as well.

    Broje–

    An electromagnetic signal is but a subset of all signals in which electromagnetic properties are used to encode informational content. There is no logical difference. The SIGNAL is not physical–it is representative information. Same reasoning applies to message vs written message.

    As to your comments on the meaning of “physical”, I earlier characterized an article as being corporeal, or as a thing occupying volume. That is broader than your suggestion to use the concept of matter, in that it includes antimatter as well. Energy per se is incorporeal and does not occupy volume.

  191. 383

    ******”There is such a thing as physical matter. There is such a thing as physical energy.”

    So what? Neither are at issue here.*******

    The issue is whether physical includes energy or only matter. How can you say that the existence of physical energy is not at issue? You admitted it exists. You lose.

    Physical means: objectively perceptible; measurable.

    Its antonyms are imaginary or purely mental.

    Energetic is actually a synonym of physical, not an antonym.

  192. 382

    Broj, you know as well as I do that your first def supports my position and the later is context specific that doesn’t apply here.

    “There is such a thing as physical matter. There is such a thing as physical energy.”

    So what? Neither are at issue here.

    “I almost want on to study high energy physics. ”

    Based exclusively upon the discussion in this thread I think I have a pretty good idea why you never want on to study more physics :(

    Don’t worry, I still love ya.

    I’ve got some work to get to, I’ll ttyl.

    “Your source for is a web site providing free curriculum for 7th-grade teachers?”

    I cited that one to poke fun at her. If you’d prefer a more scholarly article I’m sure I can conjure you one up.

  193. 381

    “Be a student before you tell us bad physics Broj.”

    Your source for is a web site providing free curriculum for 7th-grade teachers?

    My favorite part of the page is this: “Turn a radio on, and ask students where is the music coming from. Turn it off. Why doesn’t the room fill with music if radio waves are all around? The radio concentrates radio waves. Make sure the students realize that the sound produced is not the actual radio waves.”

    This part is interesting, too: “Sound waves are visible and some electromagnetic waves are invisible.”

    You should have just taken Official Notice, and hoped that broje would fail to properly traverse.

  194. 380

    Here’s another: relating to the sciences dealing with matter and energy; especially physics; physical sciences; physical laws

  195. 379

    *****The physics is weak in this one. ******

    I have a degree in physics. I almost want on to study high energy physics. There is such a thing as physical matter. There is such a thing as physical energy. Get a grip.

    Here is one definition of physical:

    noting or pertaining to the properties of matter and energy other than those peculiar to living matter.

  196. 378

    “Otherwise, physical includes electromagnetic waves.”

    “Posted by: broje”

    The physics is weak in this one.

    Electromagnetic fields, as well as electromagnetic waves, are most definitly not “physical” :( Neither is “potential” as in “electrical potential difference”, i.e. voltage. I believe IBP was taking some time out of his day to try to longwindedly explain that later statement without ever reaching his point.

    link to msnucleus.org

    “There are many waves generated by the release of energy but the two major types of waves are physical and electromagnetic. Physical waves need a medium to go through, and electromagnetic can go through many substances including a vacuum.”

    “The more students review the different types of waves, the easier it will be for them to recognize the differences. ”

    Be a student before you tell us bad physics Broj.

    “6, obviously you think you made a point and explained Benson previously. I do not agree.”

    Yeah, you keep failing to agree, after you agreed in the last thread. That’s my point. Stop reverting to your pre-enlightenment days. Seriously Ned.

    “Benson’s reasoning is an example of bootstrapping.”

    Cry more.

    “The court was presented with a claim to a machine or a machine process; it reminds us that abstract ideas are not patentable (but the claim is not directed to an abstract idea); and reaches the result it did by the “wholly preempt” statement which has no proper place in Section 101 analysis.”

    According to you.

    “A claim to a nail preempts all uses of a nail;”

    Does a claim to a nail preempt any uses of ANY abstract ideas?

    Oh, it doesn’t? Then we don’t have a problem.

    “a claim to a composition of matter preempts all uses of that composition, ”

    Does a claim to a composition of matter preempt any uses of ANY abstract ideas?

    Oh, it doesn’t? Then we don’t have a problem.

    ” claim to a machine or a machine process preempts all uses of that machine or machine process. ”

    Does a claim to a machine or a machine process preempt any uses of ANY abstract ideas?

    Oh, it doesn’t? Then we don’t have a problem.

    “Which is one of the reasons why Benson makes no sense. ”

    Actually there are none of those :(

    “But if I claim what I disclose, there is no valid objection that I wholly preempt all uses of my invention.”

    There is if your “invention” is wholly bound up with an unpatentable algorithm.

    “So, again, 6, why is it that a claim that is otherwise statutory become not patentable because it wholly preempts all uses of the invention? ”

    In the instance that one or more of the “uses” which are preempt have the combined effect of preempting something which is not patentable (an algorithm) then we have a problem Ned.

    I’m not talking to you anymore in this thread Ned. Go back and read Benson and the previous thread. Do so until the result makes sense to you and stop bothering people who get it already.

  197. 377

    6, obviously you think you made a point and explained Benson previously. I do not agree.

    Benson’s reasoning is an example of bootstrapping. The court was presented with a claim to a machine or a machine process; it reminds us that abstract ideas are not patentable (but the claim is not directed to an abstract idea); and reaches the result it did by the “wholly preempt” statement which has no proper place in Section 101 analysis. A claim to a nail preempts all uses of a nail; a claim to a composition of matter preempts all uses of that composition, a claim to a machine or a machine process preempts all uses of that machine or machine process. That is the nature of patents. It is an inherent property.

    Which is one of the reasons why Benson makes no sense. If I claim more than I disclose, that invokes section 112, p. 1. But if I claim what I disclose, there is no valid objection that I wholly preempt all uses of my invention.

    Again I reiterate, the Benson claims were not directed to a mathematical algorithm, but to a machine and a machine process. Its ultimate holding is ridiculous.

    So, again, 6, why is it that a claim that is otherwise statutory become not patentable because it wholly preempts all uses of the invention?

  198. 376

    Let’s please keep in mind that hysical does not equal material only. Energy is also physical. A lot of Judges and Justices seem to get tripped up on that distinction too. If you mean physical matter, say physical matter. Otherwise, physical includes electromagnetic waves. /confusion

  199. 375

    IPF,

    I find your call for informative blogging to be crass, given the amount of pedantic semantics you are engaged in. You apologize to MaxDrei for strawman arguments, then proceed with your game that is nothing but straw. You call upon the sake of clarity for eliminating those positions that do not fit your game.

    I get the part about you being a lawyer.

    I even get the part about strength of arguments.

    I don’t get how your game, so based in inadequacies advances any worthwhile discussion, and is anything more than fantasy drivel when you dismiss case law you do not like and make the rules only fit your version of reality. Your game is no different than Malcolm’s (sorry to be so harsh).

    Comments like incorporating relevant statutory language (yet, contrast with: “A method can never be rendered non-abstract, and hence the statement is meaningless.” I take it you have a slight problem given that methods are a statutory class) and substitution of personal judgment of courts and calling it not of immediate relevance to practitioners paint your game as simply bullocks. Don’t be insulting by trying to portray it otherwise.

    The law does change and should change – but not change driven by fantasy and ignoring those viewpoints that oh-so-inconveniently muddy the water.

    “Finally, if the patent world of the 19th century was one of logical consistency..” – A mighty big IF, and one that does not apply. How can you say with a straight face that your paradigm is one for the 21st century when you aptly ignore the duality wave/particle of nature and call anything non-physical as not real?

    There is a reason why sophistry has obtained a taint – the game you are playing is mired in it.

    You said to me “You are largely correct” – yes we both know it. Stop taking advantage of the gullible with your “game” and its attendant “logic”. Getting people to see something clearly, but that something not being real, is no model for the patent system in this, the next or any century.

  200. 374

    There is a difference between a “signal” in the abstract sense and an “electromagnetic signal,” just like there is a difference between a “message” and a “written message.” Both the “electromagnetic signal” and the “written message” are physical and real. This is really basic stuff.

  201. 373

    Nuitjen: “a signal made of electrical or electromagnetic variances … is physical
    and real.”

    WRONG! A SIGNAL IS NOT PHYSICAL AND REAL!!!!

    A signal is an incorporeal, intangible semiotic construct–it has no physical reality, although it does have meaning within its specific context.

    Electrons, etc. are physical and real (wave-particle duality, here we come!) Their variations in position, concentration, distribution, etc. with time can contain information equivalent to the meaning of a signal. BUT THE SIGNAL IS NOT REAL AND PHYSICAL!!!!!! It is merely a signifier.

    I’m an engineer and a lawyer, not even a semiotician!!!! This seems to be really basic stuff. Lacan must be rolling over in his grave.

  202. 372

    “6 or Malcolm or any who agree with them, what is the justification for the “wholly preempt” analysis? The applied algorithm is claimed in an otherwise statutory manner, it is not directed to laws of nature or natural phenomena, is not abstract, yet still deemed unpatentable.

    Why?”

    How many mother fin times have I explained this to you Ned? How many times have you read Benson and seen the justification for yourself in black and white?

    Stop going backwards in your understanding Ned.

    It’s like every morning Ned wakes up afresh and ignorant of what I just taught him the day before.

    If you need to Ned go back and read my comments in the previous thread we discussed this in, find the justification, and write it down on a sheet of paper. Keep that sheet of paper in your left front pocket and pull it out anytime you get a hankerin’ to ask this question.

    How’s that sound?

    “Why don’t they answer?”

    Because we were doing other things?

    Also, because this thread is just plain stu pid. We explain things to you and yours and you don’t even bother to learn. In Ned’s case, he learns, and then forgets the next day. I’m through educating you guys for free. If you want my instruction, I’m available to tutor you.

    “Further, your understanding of what constitutes “article” is not complete. Nowhere is article strictly limited to physical objects. ”

    Nuijten? L. o. l.

  203. 371

    By the way, I thought blogs were supposed to be informative AND fun!

    And this thread seemed to have stopped being informative some time ago.

  204. 370

    NAL–

    You are largely correct. By the way, I am a patent attorney and I do know the law as it stands.

    But what “the law” effectively does is to frame the limits of the debate such that the debate goes nowhere–witness the 400 or so posts in this thread. You and I both know that legal reasoning is not always cogent or consistent, and that is why people like Malcolm and others argue endlessly over things like a workable definition of “abstract”.

    As an attorney, working for others, I welcome the ability to make arguments on both sides of the coin, however necessity occasions. But the ability to make arguments is only half the game–the other half is knowing with reasonable certainty the strength of those arguments, and whether or not they are worth making in the first place (all relative to counter-arguments, of course).

    Too much certainty can lead to injustice, but too little certainty is inefficient, to the point where people stop playing the game altogether–witness the decreased filings. And I believe that the game can be worthwhile.

    I thought I’d try something new in this thread, to see if there is a workable paradigm that incorporates relevant statutory language.

    I am in fact substituting my personal judgment for that of various panels of various courts–not of immediate relevance to practitioners, but it may encourage new modes of argument that may some day bear fruit.

    You know, “the law” does change over time.

    Finally, if the patent world of the 19th century was one of logical consistency, then I’m all for it. As I’ve said before, the only things I would classify as non-statutory would be things substantially as found in nature. Utility, novelty, and especially non-obviousness are where the real debate should lie.

    However, rather than taking the patent world back to the 19th century, by suggesting this new paradigm I’m trying to get it out of the 20th century and into the 21st.

  205. 369

    Mr. Miyagi–

    When people characterize a general purpose computer “as the physical object that renders the method non-abstract”, that statement is largely meaningless.

    The g-p computer does not render the method non-abstract. The COMPUTER is non-abstract–it is a physical article. The METHOD itself (a series of steps) is ALWAYS abstract, always incorporeal. The best it can do is to describe a series of changes of physical state. A method can never be rendered non-abstract, and hence the statement is meaningless.

    Just as in the human brain, the functionality of a g-p computer derives from its physical properties, and its physical properties only. If you hang your “non-abstract” hat on the physical change of state in the computer, the reasoning required effectively makes thought an infringing activity.

    Toilet scenario–

    problem: I need to expel waste to avoid sepsis/death/discomfort.

    situation: I can expel waste anywhere, but the restroom is the only place where I won’t be sanctioned for doing so. Sanctions reflect a social decision, reflecting a social benefit for avoidance of the sanctions.

    Notifying a potential user is of no stand-alone, inherent utility. The potential user may decide not to act because the food has arrived, may be prevented from acting because of turbulence, or may no longer even be a potential user and have gone in his/her astronaut underwear. The notification itself is of no utility, especially clearly highlighted in the last scenario.

    A voltage across electrodes induces a current to flow in the filament connecting them, etc..electrons…energy levels…incandescence…photons…absorption…electrons…neurons…neurotransmitters…etc…
    NO UTILITY until the person actually acts on the information to proceed to the washroom and expel waste.

    You could argue that the illuminated light has utility because the person will not go before the light is lit and hence will not waste their time trying and that that is useful–but you would need 2 signals, one for occupied and one for clear. If there was only one signal, clear, the absence of that signal would be interpreted as not clear, and effectively there would be two signals. The “not clear” signal is clearly not physical, because no changes of state have occurred. Etc. etc. etc.. And if the light hasn’t been illuminated, there is no signal, and if there is no signal, there is not even the possibility of utility.

    Furthermore, if the person has already gone, the illumination of the light obviously has no utility.

    The last step in a potentially patentable algorithm would need to be the expulsion of waste into the relevant toilet. I’m not saying that this WOULD be patentable, only that without it, it WOULD NOT be patentable under 101.

    Finally, I don’t really agree that it would be difficult to characterize the necessary physical step in business method patents. Give me any specific example and I’ll try it–e.g. buying shares, adding subtitles, etc., time permitting.

  206. 368

    Ned–

    Yes, I’m aware of Arrhythmia and Halliburton, and was doing my best to ignore what they said. Not lawyerly, I know, but clarity is required, and they don’t represent the path thereto.

    In Arrhythmia, the court characterized the relevant time-varying voltages as “signals”. Said voltages are therefore signifiers, signifying physical activity of the heart muscle and/or electrical conditions therein. The voltage at any particular time(s) is used as a variable in what is a mathematical algorithm. The solution is numerical in nature and, by itself, is incorporeal, and has no practical utility. It remains a signifier that must be translated into an output that is capable of producing a physical change. However, that output itself is still a signifier, and its utility bears no direct relation to the original problem, which was physical in nature. The transformation must be a physical one, and must be of the signified.

    The utility needs to derive from inherent physical properties; once a physical article is transformed, it is newly-functional–it has new physical properties.

    A signal, or a numerical solution, or a voltage must necessarily be combined with something else in order to have physical utility–for instance, consider the question: What is the practical utility of 4 volts potential difference? When asked in the abstract, without any context and without any signified, the question does not admit of an answer. THAT is the problem with the reasoning in Arrhythmia.

    The signifier MUST be translated back to the signified in order to have utility, and that translation MUST therefore be included as a necessary step in the algorithm.

    I KNOW I’M ON SLIPPERY GROUND HERE, WITH REASONING THAT CAN BE USED AGAINST ME.

    I know someone will say that a rock only has utility when someone animate is there to wield it, or to sit on it, or to smash something into it or rub something against it. The point is that it is the physical properties of the rock that enable its utility in any of these scenarios–grinding, sharpening, supporting, smashing. 4 volts potential difference, on the other hand, HAS NO PHYSICAL PROPERTIES, and therefore cannot have any inherent utility.

    Arrhythmia said that “converting, applying, determining, and comparing electrical signals are physical process steps”, and that 101 was therefore satisfied.

    Wrong. The location and distribution of charge is a physical property. An electrical signal has no physical properties–it is a signifier, signifying the location and distribution and magnitude of charge at any time/position/combination thereof. That location/distribution/magnitude may be related to the original problem, in which case it has practical utility.

    The voltage signal is a set of values, used as variables in a mathematical algorithm. If you want to talk about physical process steps, talk about the distribution, location, and magnitude of charge.

    I know this is tending toward a problem-solution approach, but it cleanly resolves important issues.

  207. 367

    IBP,

    You have set the “rules” of your game to give you the response that you want, while ignoring the real rules of patent law. This is evident in the tautology you create in answer to breadcrumb’s question on “functional”. By declaring no patentability where you have both functionality and transformation (even tied to a machine), your game eviscerates the law as we have it. You will need to add a lot more to your theory in order for it be cogent when you wholesale eliminate things that you simply don’t like.

    Your game may be fun for you but will be useless otherwise.

    As Ned Heller points out, your defintions are not supported by case law. Your premise of “sufficiently courageous to advance particular definitions with support therefor” might be better suited if you advance some support for disbanding case law.

    Further, your understanding of what constitutes “article” is not complete. Nowhere is article strictly limited to physical objects. Just because you don’t want “article” to be something that represents a physical thing, simply doesn’t make it so. It may be nice for your “tight” game or for some alternate reality, but not very helpful here and now.

    For your game’s sake, I would be curious as to the support you might give for taking the patent world back to the 19th century.

  208. 366

    Breadcrumbs–

    I used the word “functional” to highlight that even though the software and hardware do cooperate, and even though the machine can be transformed to a different state (i.e. there is indeed some function) there is no patentability. But I suppose it is not strictly necessary to include the word “functional”, merely instructive.

    No, numerical output is NEVER transformation of an article. Transformation of an article requires a physical act to be performed on an article or articles, even if those articles are individual chemical ingredients or precursors and the act is something like bringing them into contact or proximity with other molecules, or using a field to exert a force on electrons to change their physical position/distribution within a carrier substance, etc..

    I would definitely limit articles to, using your words, “physical things”, but would prefer something tighter like tangible articles, or things occupying volume.

    I would NEVER include in the definition of “article” something that “represents a physical thing”. That is a signifier and not an article.

    Why did you say that an article can represent a physical thing? That would never be necessary–an article could signify a quantity, magnitude, direction, vector, feeling, whatever you wish, but it would never be strictly necessary to represent one physical article by use of another physical article.

  209. 365

    “why do you find it soooooo unthinkable, to mention Dr. Martin Luther King Jr. in a post about the civil rights of inventors?”

    It’s not unthinkable, it’s just re-tard-ed. It’s comparing people fighting for their human rights to your displeasure at not being allowed to sit around on your duff and collect a fee every time someone swings sideways on their swingset.

  210. 364

    AI, let it rest. I had my say, and you had yours. If you’re happy with your commments, then I’m fine with mine.

  211. 363

    Big Guy: Regarding “clouding the issue,” I’m not the one who drew an analogy between the civil rights movement and your concerns about subject matter eligibility. That was you.

    AI: Nice try at spinning but you failed. I compared the civil rights of “inventors” to the civil rights of everyone else.

    Big Guy: You can sputter about my integrity or lack of intellectual depth all you like, but it’s still my opinion that this analogy trivializes Dr. King’s legacy.

    AI: I disagree, my comments expand and enhances Dr. Kings legacy as he worked for eqaul opportunity for all people, in all walks of life and all professions.

    Big Guy: Your original comment was probably unthinking, but your subsequent unwillingness to back away from it is telling.

    Okay I have had enough of your righteous indignation, faux or otherwise So tell me, why do you find it soooooo unthinkable, to mention Dr. Martin Luther King Jr. in a post about the civil rights of inventors?

    If you are so impassioned and as sincere as you want me to think you are surely you can explain your feelings. Especially since you won’t speak out on the 101 issue before us.

  212. 362

    Inviting Body Punches: “Long-winded with many gaps, but I invite all questions and I will try to fill those gaps.”

    The problem with your long list of definitions is that they are all based on legal semantics.

    One should not try and define scientific terms based only on subjective legal positions. If what you seek is clarity and stability then create ‘operational definitions’ based on objective testable scientific evidence.

    There will still be plenty for attorneys to fight about for 112, 102, and 103 but leave 101 on a solid scientific basis.

  213. 361

    Posted by: Ned Hellerr: “6 or Malcolm or any who agree with them, what is the justification for the “wholly preempt” analysis? The applied algorithm is claimed in an otherwise statutory manner, it is not directed to laws of nature or natural phenomena, is not abstract, yet still deemed unpatentable.

    Why?”

    Why don’t they answer?

    :: The Sound of Crickets Chirping::

  214. 360

    Posted by: Luke Ueda-Sarson : “I’m not sure what all kinds of various inventions should belong too, because I’m not from the US, and the categories are by no means as self-evident as you appear to believe.

    In jurisdictions such as Australia and New Zealand, where, unlike the UK, the original Statute of Monopolies is still in force, courts thus still routinely ask the question “is (this) a ‘manner of new manufacture’ within the meaning of the Statute of Monopolies 1623?”

    And under the case law related to the act, “Processes”, “Machines”, and “Compositions” are sub-categories of “Manufactures”, not distinct therefrom.

    What exactly did the US gain by splitting the term “manufacture” up into 4 separate categories, one of which carries the same name as the old broad one?”

    Cheers to you Luke!

    You make some interesting and some scientifically valid points. And inventions often do overlap the categories. I would say that certainly manufactures and processes are the same thing . Last year I summed it up nicely in a post that I will simply repost here rather than rewrite.

    Enjoy!

    Posted by: Actual Inventor | Sep 08, 2009 at 12:34 AM: The fact of the matter is every invention is a process at its beginning and remains a process at its core, and that’s why it’s essential to keep processes as a legal category of patentable subject matter.
    The fact that we are well into the 21st century and have to go to the Supreme Court to determine if the USPTO has to acknowledge and grant patents on new, innovative, and non obvious processes is quite unbelievable to an “Actual Inventor” that lives in the real world of commerce, service, and production. And when reading the arguments of the USPTO, and its supporters, its as if the last 50 years of quantum mechanics, information processing and systems thinking never happened. Let us hope we have more enlightened minds on the SCOTUS than those that would slam the door shut on the new frontiers in science, technology and commerce that is so desperately needed in todays global economy and increasingly interdependent world.

  215. 359

    Oh great IBP, there you go ruining our kindergarten name calling party with your substantive discussions.

    Your analysis sounds reasonable but it seems like you’re going to run into the same problem as the M prong of the MOT test as far as determining what does or does not constitute “acting upon a physical object or objects using the solution”. I gather you aren’t suggesting that a general purpose computer performing the method can itself be considered the physical object that renders the method non-abstract. Does notifying a user that his restroom is ready constitute acting upon a physical object or objects using the solution? If not, what if the last step of the method is causing a light to flash on a box the customer is holding? Would the system have to have a step like automatically flushing the toilet prior to notifying the user so that he doesn’t get a surprise when he gets there (I just thought of that feature AI, so don’t go trying to patent it)?

    It seems like a majority of business methods and software methods would be difficult to characterize as to whether they are acting upon a physical object or objects using the solution (e.g. buying or selling shares of stock, adding subtitles to video, identifying an individual’s voice in audio, online commerce method that includes a step of shipping merchandise to a customer, etc.)

  216. 358

    “Indeed, nearly all of us are ‘pretty moderate’ on the question.”

    Perhaps. But some of us are more “pretty moderate” than others.

  217. 357

    Inviting, on the “numerical output,” at least the Fed. Cir. disagrees with your statement. Both in ARRHYTHMIA RESEARCH TECHNOLOGY v. CORAZONIX, and in MAYO, the Feds held the output number to be patentable due to real, physical input data, such that the number represented something real.

    What to do with the number was disclosed, but was not part of the claim.

    The same issue was implicitly involved in the Halliburton case, as the object of the claim was to calculate the depth of an oil well. That is a number. But no one ever objected that the claim was unpatentable unless the claim also claimed some use of the number.

  218. 356

    BigGuy: Your original comment was probably unthinking, but your subsequent unwillingness to back away from it is telling.

    Pretty much the modus operandi for ABA. Weird how Troll Above Law and NWPA still feel compelled to defend the guy.

    BigGuy If you were to examine my prior comments on this topic, you’ll find that I’m actually pretty moderate on the question of patentable subject matter.

    Indeed, nearly all of us are ‘pretty moderate’ on the question. The approach of Diehrbots like ABA is the classic fundamentalist approach to any dissent from their position(s): demonize the dissenters and accuse them of wanting to destroy the country (or some broadly-defined proxy for the country, such as “small businesses”).

    It’s pathetic.

  219. 355

    6 or Malcolm or any who agree with them, what is the justification for the “wholly preempt” analysis? The applied algorithm is claimed in an otherwise statutory manner, it is not directed to laws of nature or natural phenomena, is not abstract, yet still deemed unpatentable.

    Why?

  220. 354

    “The functional combination of software and complementary hardware to produce a numerical output is not patentable.”

    What is the distinction gained by using the word “functional”?

    Is the numerical output a transformation of an article (remember – articles are not limited to actual physical things, as an article may represent a physical thing)?

  221. 353

    Having a bit of time on this holiday, I decided to look at this thread and determine why it has legs.

    It seems that there are only a few regular contributors propagating this thread, none of whom are sufficiently courageous to advance particular definitions with support therefor.

    I myself advanced a rudimentary hastily-cobbled-together definition of a MATHEMATICAL ALGORITHM way back on December 23 (!!!) hoping to get the discussion moving. It read as follows:

    “A mathematical algorithm is one or more logical operations performed upon one or more variables, which operations comport with the defined axioms of mathematics. Said operations may or may not employ numbers or number theory, and said variables may or may not be signifiers.”

    Trying to get to a definition of abstract, as limited to MATHEMATICAL ALGORITHMS, I would say that an algorithm is abstract any time it meets the above definition.

    An ALGORITHM is not abstract when it includes a final step that includes a numerical solution that signifies an amplitude, a direction, a combination thereof, or a set thereof, of either a tangible object or a value on a standardized scale that is itself a signifier of an underlying physical phenomenon (e.g. temperature), and when the signified is acted upon automatically as a result of said numerical solution.

    Physical action on an object would be required for non-abstraction, and there could be no decision-making step between the solution and the action–it would have to be automatic. Thus, the action would necessarily have to be incorporated into the algorithm as an essential step.

    Take your shots!!

    Just trying to get things moving, since people seem committed to this thread.

    Thinking about only math = abstract

    Performing only math mentally = abstract

    Performing math mentally and deciding to use solution = post-solution decision = not automatic = abstract

    Performing only math mechanically = abstract

    Performing only math mechanically and taking the output and deciding to use it or not = abstract

    Performing math mechanically and automatically acting upon a physical object or objects using the solution = NOT ABSTRACT

    By “mechanically”, I of course mean “non-mentally”.

    Thinking about something is neither patentable nor infringing.

    Thinking about something and acting upon your thoughts is neither patentable nor infringing (although the action by itself could infringe an entirely different patent).

    Software is not patentable–by itself, it performs no operations and produces no solution.

    The functional combination of software and complementary hardware to produce a numerical output is not patentable.

    The functional combination of software and complementary hardware to automatically perform a physical act or acts upon a different physical object or objects is patentable.

    Long-winded with many gaps, but I invite all questions and I will try to fill those gaps.

  222. 352

    Max Drei Wrote: “AI writes:

    “We know that a pure mental use of an algorithm can’t technologically be patented because there is a rule that an invention must be reduced to practice.

    For example, if the inventor writes a patent application the invention has been reduced to practice same as if the inventor demonstrated the invention to a patent examiner during an interview. And since it’s not technologically possible for human beings to demonstrate, a.k.a reduce to practice, anything without movement of an external body part then a pure mental use of an algorithm is not technologically possible to patent.”

    Which prompts me to think about inventions like those that will fly you to the moon. Can they be demonstrated to an Examiner at interview?

    What difference does it make? Whether you write it up in a patent application, build a model or simulation, or an actual rocket ship the invention still requires you to use an external body part in order to reduce the invention to practice.

    That FACT you can’t ignore or defeat no matter how much you pout or how many irrelevant questions you ask.

  223. 351

    NEXT UP:

    Yet another pseudonym and yet another stale attempt of diverting attention with an obvious red herring attack.

    Gotta love the Trainwreck for such fool provocateurs.

  224. 350

    “As the one who cannot see, it is you that seems to lack the perspective of his point.”

    NAL, I have no idea what that even means. But I suspect that you’d argue with me if I said that the sky was blue, so I’m not going to worry about it.

  225. 349

    “BigGuys comments are simply a red herring to cloud the issue and keep the discussion from advancing in an honest direction.”

    AI, respectfully, the discussion on this topic stopped advancing in an honest direction on these boards a long time ago. If you were to examine my prior comments on this topic, you’ll find that I’m actually pretty moderate on the question of patentable subject matter. Until Congress says it wants to exclude computer-related inventions (which I think is unlikely), the courts should refrain from overly limiting patentable subject matter. Although the court meant well in Bilski, they included some very unfortunate dicta, and I’m looking forward to the Supreme Court cleaning that up. Beyond that, I’m not getting into it again, because the issue on this board has devolved into nothing more than a shouting war between partisans of two ill-defined ideologies.

    Although I actually agree with Malcolm on occasion, I’m no “cohort” of his, nor am I a “pal” of 6’s. In fact, I was actually the first one to call out 6 on his most infamous posting, under a pseudonym that I retired in protest.

    Regarding “clouding the issue,” I’m not the one who drew an analogy between the civil rights movement and your concerns about subject matter eligibility. That was you. You can sputter about my integrity or lack of intellectual depth all you like, but it’s still my opinion that this analogy trivializes Dr. King’s legacy. Your original comment was probably unthinking, but your subsequent unwillingness to back away from it is telling.

  226. 348

    NEXT UP: Actual Inventor compares the plight of inventors after KSR to victims of the Hol0caust.

  227. 347

    Noise above Law: “Obviously, the patent world cannot have the impact or soul-searing sorrow of how one man can treat another based on color of skin.”

    What I find telling is that Malcolm and his cohorts do not utter one word of condemnation when their pal 6 spews racial epithets and racist innuendoes on this blog. Yet, Malcolm, under another alias no less, and Big Guy are so outraged that anyone would discuss discrimination against inventors on MLK’s birthday. BigGuys comments are simply a red herring to cloud the issue and keep the discussion from advancing in an honest direction.

    i.e. “Red herring fallacies
    A red herring is an argument, given in response to another argument, which does not address the original issue.”

    Honestly, I thought he had more intellectual depth and integrity than that. Nonetheless, the original issue remains.

    why it’s beneficial to society to discriminate against inventors of algorithms ( processes and methods too) in the way the courts and the BPAI have done.

  228. 346

    BigGuy,

    They say that perspective is in the eye of the beholder. So in that sense, I can cut you a little slack – but ask that you do the same.

    I “get” the comparison AI is making and do not find it nearly as troubling as you do. Sure, it’s a little over the top, but nothing to get so worked up over. Obviously, the patent world cannot have the impact or soul-searing sorrow of how one man can treat another based on color of skin.

    As the one who cannot see, it is you that seems to lack the perspective of his point.

  229. 345

    “I am not comparing the violence and murder of Negroes during the 1950’s and 1960’s to the systematic discrimination of our government and court system for inventors of algorithms – and methods and processes too for that matter. It’s inherently dishonest for you to imply so. Nonetheless, Dr. Kings Dream of equality and civil rights for ALL, a dream deeply rooted in the American dream, and inspired by the constitution, is relevant here exactly because of Clause 8 in the US constitution…”

    Not explicitly. But you’ve invited the readers of your comment to perform this comparison. Twice, now. I think your comments demonstrate an astonishing lack of perspective.

  230. 344

    “..or the teabaggers”

    ‘nuf said. – yet another pseudonym, as only one poster here is so comfortable with the use of that term.

    algorithm vs mathematical algorithm

    maths vs applied maths

    As we have seen, there are many definitions of “algorithm”, some of which are clearly patent eligible (even those pulled from 6’s favorite source – Wikipedia).

    The point Malcolm, er um, Klingon, is that you STILL have not defined what you mean by the term so that NWPA can thrash you, er, um, explain his position. And this after you so often post your “I’m waiting” shtick. Funny how you whip that out, yet, others are still waiting for you.

    Yet another day at the Trainwreck.

  231. 343

    Amen BigGuy. AI’s statement is kind of like modern Republican appropriating Lincoln, or the teabaggers appropriating the Boston Tea Party. It belies a complete lack of understanding of who the people were and what they were fighting for.

    AI: “We know that an algorithm is not abstract”

    “… claims directed to nothing more than abstract ideas (such as mathematical algorithms) … are not eligible for patent protection. Diehr, 450 U.S. at 185, 209 USPQ at 7; accord, e.g., Chakrabarty, 447 U.S. at 309, 206 USPQ at 197; Parker v. Flook, 437 U.S. 584, 589, 198 USPQ 193, 197 (1978); Benson, 409 U.S. at 67-68 , 175 USPQ at 675; Funk, 333 U.S. at 130, 76 USPQ at 281.”

    We know that a mathematical algorithm IS abstract.

  232. 342

    AI: What I would like to see is an honest discussion about why it’s beneficial to society to discriminate against inventors of algorithms in the way the courts and the BPAI have done.

    Big Guy: “AI, please read the following excerpt from “Letters from a Birmingham Jail” and then explain to us how a comparison between King’s….”

    I am not comparing the violence and murder of Negroes during the 1950’s and 1960’s to the systematic discrimination of our government and court system for inventors of algorithms – and methods and processes too for that matter. It’s inherently dishonest for you to imply so. Nonetheless, Dr. Kings Dream of equality and civil rights for ALL, a dream deeply rooted in the American dream, and inspired by the constitution, is relevant here exactly because of Clause 8 in the US constitution:

    “The Congress shall have Power *** To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    [Please note that the constitution does not limit rights to Inventors of machines, compositions and articles of manufacture.]

    Now, if you want to get back on topic I would be most interested in hearing your opinion about why it’s beneficial to society to discriminate against inventors of algorithms ( processes and methods too) in the way the courts and the BPAI have done.

  233. 341

    “What I would like to see is an honest discussion about why it’s beneficial to society to discriminate against inventors of algorithms in the way the courts and the BPAI have done. This is particularly apposite since today we are celebrating the birthday of the great civil rights leader Dr. Martin Luther King Jr.”

    This is one of the more ignorant statements I’ve ever read on Patently-O, or one of the most cyncial. AI, please read the following excerpt from “Letters from a Birmingham Jail” and then explain to us how a comparison between King’s mission and yours is “apposite.” My apologies for the editing of King’s letter – the spam filter is a bit aggressive.

    But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen h@te filled policemen curse, kick and even ki11 your black brothers and sisters; when you see the vast majority of your twenty million Negr0 brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: “Daddy, why do white people treat colored people so mean?”; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “n—–,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negr0, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”–then you will understand why we find it difficult to wait.

  234. 340

    AI writes:

    “We know that a pure mental use of an algorithm can’t technologically be patented because there is a rule that an invention must be reduced to practice.

    For example, if the inventor writes a patent application the invention has been reduced to practice same as if the inventor demonstrated the invention to a patent examiner during an interview. And since it’s not technologically possible for human beings to demonstrate, a.k.a reduce to practice, anything without movement of an external body part then a pure mental use of an algorithm is not technologically possible to patent.”

    Which prompts me to think about inventions like those that will fly you to the moon. Can they be demonstrated to an Examiner at interview? i would think not.

    In that case, AI, they aren’t patentable are they?

    Can that be right? i think not.

    Perhaps AI can brief me, on the difference between actual and constructive reduction to practice?

    On second thoughts, maybe that’s not such a good idea, after all.

    AI, what about sensors stuck on your skull? They can track certain types of thinking these days, can’t they? Is movement of an eye or a tongue any more necessary, for communication between humans. What if the inventor brings his brain to interview with the Examiner, already sensored-up and ready to communicate?

  235. 339

    Posted by: Actual Inventor: “…all we need is already before us in the statute; Process, Machine, Composition, Manufacture. And anyone that understands and accepts the scientific method should be able to understand and clearly identify inventions in one of these categories. And thats the way it should be, after all we are talking about rules for inventions in science and technology, not religion, politics or artistic preferences”.

    I’m not sure what all kinds of various inventions should belong too, because I’m not from the US, and the categories are by no means as self-evident as you appear to believe.

    In jurisdictions such as Australia and New Zealand, where, unlike the UK, the original Statute of Monopolies is still in force, courts thus still routinely ask the question “is (this) a ‘manner of new manufacture’ within the meaning of the Statute of Monopolies 1623?”

    And under the case law related to the act, “Processes”, “Machines”, and “Compositions” are sub-categories of “Manufactures”, not distinct therefrom.

    What exactly did the US gain by splitting the term “manufacture” up into 4 separate categories, one of which carries the same name as the old broad one?

    Not clarity, it appears, and definitely not legal certainty.

    Cheers, Luke

  236. 338

    ABA: What I would like to see is an honest discussion about why it’s beneficial to society to discriminate against inventors of algorithms in the way the courts and the BPAI have done. This is particularly apposite since today we are celebrating the birthday of the great civil rights leader Dr. Martin Luther King Jr.

    Oy.

    I look forward to your analysis of Perry v. Schwarzenegger.

  237. 337

    “What about a method of answering a problem by performing a series of mental acts in one’s head? Is that a patent-eligible “process” under 101?”

    Okay, let’s compare the new BPAI Policy with what we have learned in this thread about science and technology. First we review;

    We know that an algorithm is not abstract and by the very nature of it being a mental production system, requires a use. For our purposes there are basically 4 uses of an algorithm.

    A pure mental use by a human being ( without movement of an external body part).

    A use by a human being accompanied by some physical action ( movement of an external body part).

    A use by a human being with the aid of a machine such as a computer.

    A use by a computer, i.e., Artificial Intelligence.

    We know that a pure mental use of an algorithm can’t technologically be patented because there is a rule that an invention must be reduced to practice.

    For example, if the inventor writes a patent application the invention has been reduced to practice same as if the inventor demonstrated the invention to a patent examiner during an interview. And since it’s not technologically possible for human beings to demonstrate, a.k.a reduce to practice, anything without movement of an external body part then a pure mental use of an algorithm is not technologically possible to patent.

    Now, from this point the answer we seek is based on pure policy so it’s simple as first applying the MOT and then BPAI’s latest post Bilski adaptation which is;

    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”)?
    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?”

    So, to get the answer to the initial question apply the above tests. Now, as anyone can plainly see those that have argued that inventions of algorithms, and consequently their inventors, are being discriminated against when compared to other inventions are 100% correct.

    What I would like to see is an honest discussion about why it’s beneficial to society to discriminate against inventors of algorithms in the way the courts and the BPAI have done. This is particularly apposite since today we are celebrating the birthday of the great civil rights leader Dr. Martin Luther King Jr. So what’s everyones opinion?

  238. 336

    MM: I’ll play your game, when you answer my simple question about what is the definition of “abstract” as a term of art in patent law.

  239. 335

    When all we need is already before us in the statute; Process, Machine, Composition, Manufacture. And anyone that understands and accepts the scientific method should be able to understand and clearly identify inventions in one of these categories.

    What about a method of answering a problem by performing a series of mental acts in one’s head? Is that a patent-eligible “process” under 101? What there is an extra step recited wherein an “external body part” is moved? Eligible per se?

    I assume you understand and accept the scientific method so this should be “clear” to you. Let me know your answer. Thanks!

  240. 334

    Hey, Actual Bullsh*t Artist is back!

    Is a series of mental acts performed to answer a question or solve a problem an “algorithm”? The answer is yes, of course. Are such algorithms patentable? According to AI, the answer is no, unless those mental steps are accompanied by a “movement of an external organ.” Do I have that right, AI/NWPA/NAL?

    Still waiting for your answer to this simple request for clarification of your earlier comment in this thread, ABA. Is there a problem? I mean, other your usual problem.

  241. 333

    6 wrote: “AI if you actually did your job rather than trying to patent nonsense and conning people with such patents then we wouldn’t be concerned :(”

    What a fine display of class, intelligence and integrity.

  242. 332

    AI if you actually did your job rather than trying to patent nonsense and conning people with such patents then we wouldn’t be concerned :(

  243. 331

    Max Drei: “After all, there has to be an eligibility limit somewhere, no?”

    Excuse me Max but surely you know that in the USA we already have a sound eligibilIty limit, often referred to as the judicial exceptions. One may not patent a law of nature, natural phenomenon, or an idea. Those with flaming agendas, both in and out of the closet, need to stay away from the realm of science and technology and let this nations Actual Inventors do their jobs.

  244. 330

    Hagbard Celine wrote: “What strikes me as legally weaselly is the idea that the right “magic words” can make the difference between eligibility and ineligibility without changing the substance of what is claimed.”

    I agree with you. And would add that only those with agendas advocate the use of so called “magic words” to create various test for patent eligibility. When all we need is already before us in the statute; Process, Machine, Composition, Manufacture. And anyone that understands and accepts the scientific method should be able to understand and clearly identify inventions in one of these categories. And thats the way it should be, after all we are talking about rules for inventions in science and technology, not religion, politics or artistic preferences.

  245. 329

    Hagbard, good thoughts. When it comes to obviousness, weasel words don’t get you very far. But, on 101, which is the first coarse patentability filter, which many argue should not be there at all, one weasel word might be just enough to make a decisive difference to whether or not you can move forward to 102, 103 and 112. After all, there has to be an eligibility limit somewhere, no?

  246. 328

    Maybe the debate would benefit from the judicious use of “as such”. The State Street patent didn’t claim a business method “as such”, it claimed a computer system adapted to implement a business method. Isn’t the nub of the objection to Bilski that it is nothing more than a business method “as such”.

    What strikes me as legally weaselly is the idea that the right “magic words” can make the difference between eligibility and ineligibility without changing the substance of what is claimed.

  247. 327

    btw,

    I noticed that the spammy stats indicate that Malcolm not only had more posts than either AI or myself, but had as many posts as AI and myself COMBINED. Not only that, but other worthy posters were also ignored.

    The thank you post’s errors at #300 are egregious. C’mon spammys – give out the awards appropriately.

  248. 326

    The legal weasel words of “as such” and “per se” do not translate well to the US debate, and translate even more poorly to blogs covering the US debate.

    Sort of like the difference between “maths” and “applied maths”…

  249. 325

    Night, keep your wig on. That’s why I included the words “as such”. A Method of Processing Commodity X is not an algorithm “as such”. I suppose that every patentable process has some sort of “algorithm” underlying it, but what meets 101 is the process, the practical application of the algorithm, not the algorithm as such.

    But I’m not a specialist information processor. Tell me again, where I’m going wrong.

  250. 324

    “Communication is only possible between equals”.
    – the “real”/”fictional” Hagbard Celine

    Draw your own conclusions, but I think this thread pretty much proves it

  251. 323

    >>How does one reduce to practice something >>abstract like an equation or an algorithm,

    This is loopy and ridiculous. Information processing algorithms are written and discussed in terms that one skilled in the art knows how to reduce them to practice. Information processng algorithms are as practical as methods for processing grain or making metals.

    These ridiculous statements that an algorithm is abstract is absurd. Please educate yourself.

    It is true that levels of abstraction have been built in computer science. But, those skilled in the art know how to trvel up and down the levels of abstraction.

    You know the other thing that is absurd is that the information processing algorithms are not only not abstract but are discussed in terms that they can implemented on a specific machine–the von neumann architecture computer.

  252. 322

    That would be “abstract” the adjective, in a SCOTUS context, right? As opposed to “abstract” the noun well-known to patent attorneys, and a synonym for “abridgment”.

    Personally, I think 1+2+3+4, especially “not applied or practical” just about says it all. How does one reduce to practice something abstract like an equation or an algorithm, as such? Technology is applied science, as opposed to abstract science or mathematics.

  253. 321

    Well, MM, are you going with 4 for the definition of abstract as a term of art in patent law?

  254. 320

    Your bullets sir:

    –adjective 1. thought of apart from concrete realities, specific objects, or actual instances: an abstract idea.
    2. expressing a quality or characteristic apart from any specific object or instance, as justice, poverty, and speed.
    3. theoretical; not applied or practical: abstract science.
    4. difficult to understand; abstruse: abstract speculations.
    5. Fine Arts. a. of or pertaining to the formal aspect of art, emphasizing lines, colors, generalized or geometrical forms, etc., esp. with reference to their relationship to one another.
    b. (often initial capital letter) pertaining to the nonrepresentational art styles of the 20th century.

    –noun 6. a summary of a text, scientific article, document, speech, etc.; epitome.
    7. something that concentrates in itself the essential qualities of anything more extensive or more general, or of several things; essence.
    8. an idea or term considered apart from some material basis or object.
    9. an abstract work of art.

    I believe MM will agree to the use of this box. Personally I think you should start with 4.

  255. 319

    MM: I will answer your questino if you answer mine. I am not going to walk into a box canyon when you refuse to give me any bullets. So, please define abstract as you are using it in patent law, and then I will answer your question.

  256. 318

    Is a series of mental acts performed to answer a question or solve a problem an “algorithm”? The answer is yes, of course. Are such algorithms patentable? According to AI, the answer is no, unless those mental steps are accompanied by a “movement of an external organ.” Do I have that right, AI/NWPA/NAL?

    Still waiting.

  257. 317

    MM: >>Still waiting

    Don’t be ridiculous. Answer my question of what your definition of abstraction is. For the record, I think your approach of coming up with examples to discuss is a good one, but you must play fair.

    It does not look to me like I posted 26% of the posts.

  258. 316

    Of the first 320 posts on this thread, the breakdown of who is posting (at or above 2%) is as follows:

    23% – Night Writer Patent Attorney
    16% – Malcolm
    15% – 6
    10% – Actual Inventor

    6% – broje
    6% – Noise above Law
    5% – MaxDrei
    3% – BigGuy
    3% – Ned Heller
    2% – Just Visiting
    2% – Hagbard Celine

  259. 315

    “Still waiting”

    Oh how nice. Sorta like I’m still waiting for answers from you nigh about a year now.

    How does it feel?

  260. 314

    Is a series of mental acts performed to answer a question or solve a problem an “algorithm”? The answer is yes, of course. Are such algorithms patentable? According to AI, the answer is no, unless those mental steps are accompanied by a “movement of an external organ.” Do I have that right, AI/NWPA/NAL?

    Still waiting.

  261. 313

    Malcolm, my dear sweet Malcolm.

    I’ve posted previously to your bogus calls and examiner briar patch tricks. Don’t you remember the thread where you accused me of sticking up for AI’s premise when all I actually did was deconstruct your pitiful strawman of a question? You know, the thread where about three or four different examiners called you onthe carpet for your “claim”? Shall I search for that thread and post it to remind you of yet another of your failures?

    When you start to answer my challenges instead of running for the hills anytime someone asks a substantial question of you, I might consider analyzing your challenges to the level they deserve. Don’t worry – I will still point out the straw in your strawmen when it suits my purposes, but most of your challenges are like piles of steaming crap that you “invite” other to step in.

    Why would any sane person oblige you?

  262. 312

    “Now AI says that “algorithms are not abstract thoughts or ideas.” Gee, thanks, Did anyone claim otherwise?

    Yes, 6 did. See his quote below:

    Posted by: 6 | Jan 06, 2010 at 04:27 PM “As it so happens, an algorithm is an abstract idea :( ”

    I’m guessing that 6 is not using the term “algorithm” to refer to “any method” as some here are inclined to construe the term. Now that that’s been cleared up, we’ll see if the Three Teabaggeteers can get around to clarifying AI’s bullcrud.

  263. 311

    Is a series of mental acts performed to answer a question or solve a problem an “algorithm”? The answer is yes, of course. Are such algorithms patentable? According to AI, the answer is no, unless those mental steps are accompanied by a “movement of an external organ.” Do I have that right, AI/NWPA/NAL?

    Still waiting.

  264. 310

    To MM: I have asked you repeatedly for your definition of abstract. Please answer that question and then I’ll answer yours.

    I am sure that MM at some point admitted to posting under multiple names.

    Oh well, too bad we can’t have a more substantive argument about 101. I run into questions about 101 at least once a week in my practice.

    But, under the MaxDrei rule I will tell you nothing without you transferring money to my bank account.

  265. 309

    Who wants to bet that anyone actually cares what Malcolm answers?

    When Malcolm shows that he can offer anything of substance rather than his pile-o-crap strawman questions, perhaps some interest will be generated. Funny how quick Malcolm is to call people out to answer his twisted and loaded questions, but never seems to get around to providing an answer to questions put to him, resorting instead to degenerate into a Jaime Gumb type of Troll name-calling.

    Funny also how certain OTHER posters are quick to assail AI/NWPA/NAL type posters, yet are more than content to put up with crap post after crap post from Malcolm and 6.

    I’m just sayin… (not the poster)

  266. 308

    Malcolm Mooney wrote:

    “Now AI says that “algorithms are not abstract thoughts or ideas.” Gee, thanks, Did anyone claim otherwise?

    Yes, 6 did. See his quote below:

    Posted by: 6 | Jan 06, 2010 at 04:27 PM “As it so happens, an algorithm is an abstract idea :( ”

    Do you agree or disagree ?

    ::Who wants to bet mooney will not give a simple agree or disagree answer? ::

  267. 307

    Jules: There appears to be a lot of paranoia in the accusers, and further the accusers appear to make conclusions based on insufficient evidence, i.e. they make a lot of assumptions. They think they’ve got it all figured out, but boy are they wrong.

    Typical fundamentalist behavior, Jules. Notice that neither AI, NAL, NWPA or their sockpuppets was willing to answer the straightforward and obvious questions posed to them. Now AI says that “algorithms are not abstract thoughts or ideas.” Gee, thanks, AI! Did anyone claim otherwise?

    Is a series of mental acts performed to answer a question or solve a problem an “algorithm”? The answer is yes, of course. Are such algorithms patentable? According to AI, the answer is no, unless those mental steps are accompanied by a “movement of an external organ.” Do I have that right, AI/NWPA/NAL?

  268. 306

    Hagbard Celine wrote: It’s a shame, somewhere back up this Amazonian thread there was an interesting discussion to be had”

    This always occurs when Malcolm, 6 and Max are backed into a corner intellectually and have no one esle to go, but to twisting of words and kindergarten-level name-calling, as you put it. But the the important thing to remember out this entire thread is this:

    Based on the science and technology described at Dec 30, 2009 at 10:44 AM we can conclude absolutely that:

    A) Algorithms are not abstract thoughts or ideas.

    B) Algorithms, (methods and processes) are indeed performed, whether it be mentally, on pencil and paper, or with the aid of a machine such as a computer.

    No one in this thread has refuted that fact with objective testable scientific evidence.

    Class Dismissed.

  269. 305

    “This is truly the sign of a disturbed mind.”

    Having myself been wrongly accused of being an alter-ego of MM, I do not see it the way you do. I see it the other way around. There appears to be a lot of paranoia in the accusers, and further the accusers appear to make conclusions based on insufficient evidence, i.e. they make a lot of assumptions. They think they’ve got it all figured out, but boy are they wrong. Nonetheless, you’ll find people like this in all breeds of life – doesn’t matter whether you graduated Harvard Business School ;) or whether you spent a few years in jail – by Yale or jail, that’s how the saying goes.

  270. 304

    It’s a shame, somewhere back up this Amazonian thread there was an interesting discussion to be had. But between “physical objects can be abstract”, “ ‘technologically impossible to patent’ means ‘technologically impossible to implement and therefore unpatentable’ ”, and the kindergarten-level name-calling, I lost the will to engage.

  271. 303

    Noise above Law wrote: “More straw from Malcolm from yet another alias. It’s telling how Malcolm’s name is conspicuously left out ”

    What’s truly telling is how Malcolm actually thinks he is fooling everyone with all these alias names he uses. What’s especially disconcerting is when he starts talking to himself. This is truly the sign of a disturbed mind.

  272. 302

    “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.”

    More straw from Malcolm from yet another alias. It’s telling how Malcolm’s name is conspicuously left out and how easily he throws his pal 6 under the bus. You see what kind of friends your famoosity brings you 6?

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