356 thoughts on “Patent Absurdity: The Movie

  1. 356

    and my inability to do so suggests to me the Supremes might face the same difficulty

    IANAE is definitely in the same class as the Supremes – let me throw IANAE’s hat in the ring for the next Supreme Justice.

  2. 355

    BTW, is the expression “cop out” known in the USA?

    It is. And not only to describe the policeman in the Village People.

    I thought I’d vent a bit about the whole “oh, and also it has a computer” thing. Sorry if it sounded like I was disagreeing with you. I’m as concerned about the magic language keeping inventions out as I am about it letting them through.

    I wish I could articulate a sensible 101 test for such methods, and my inability to do so suggests to me the Supremes might face the same difficulty. Oh well, at least we can count on them not to be political. In the “let’s make the government/all the inventors happy” sense, anyway.

  3. 354

    While I do not wholly disagree with you, I’m not so sure IANAE that “computer’ is the “magic” of patent eligibility any way. 101 does include “any new and useful improvement thereof” and increase in speed is definitely a very real useful improvement and benefit.

    Time is money, after all.

  4. 353

    IANAE, I agree. That’s why I called the EPO approach to patent-eligibility a cop out. BTW, is the expression “cop out” known in the USA? Should I instead have written “wimp out”?

  5. 352

    The “snag” for SCOTUS is that it does not have any such second filter, so has no choice but to figure out a way to exclude non-obvious, not in the useful arts area, Bilski-type subject matter exclusively at the 101 station,

    It’s going to have a hard time, so long as the ornamental appearance of a hammer-crowbar love child can squeak past 101 even after you strip away all the functional parts.

    Anyway, I have a problem with “computer” being the magic word that confers patent eligibility. Many computer-implemented methods could be carried out by hand, albeit not on a useful timescale, and doing the exact same method on a computer shouldn’t determine whether that method is an invention.

  6. 351

    No. I was thinking more about the EPO cop out on 101, by letting through everything that has “technical character” and rejecting the rest. This gives a free pass to any computer-implemented business method. Politically, very astute. But in the end it doesn’t make any difference, because the EPO has a second filter in place, at the 103 station, namely its “technical means solving a technical problem” filter.

    The “snag” for SCOTUS is that it does not have any such second filter, so has no choice but to figure out a way to exclude non-obvious, not in the useful arts area, Bilski-type subject matter exclusively at the 101 station, without any help at 103, and without falling into the trap of exalting over real substance what is in the end mere form (merely plugging the words “computer-implemented” into the process claim at issue).

  7. 349

    (It was with this “link” in mind that I wrote above, about the snag, the form and the substance).

    If the Supremes refuse claims to methods of data treatment, maybe we can still claim them Swiss-style.

    Is that the sort of thing you had in mind?

  8. 348

    Purely rhetorical, that question of yours. eh ping? Purely rhetorically, you’re not seriously expecting an answer from anybody short of the nine justices, are you?

    (It was with this “link” in mind that I wrote above, about the snag, the form and the substance).

  9. 346

    Not craziness, just humans, out of their depth, conscientiously trying their best to do a good job.

    I’m not normally one to attribute sinister motives to people when well-intentioned incompetence is consistent with all the evidence, but “trying their best to do a good job” strikes me as charitable here. The rejection at issue is “examining this application is not our job”.

    This is truly one of the epic cases of people putting in an awful lot of effort to avoid doing any work. Sure, Bilski is an extreme case where they’re probably right, but to my mind excluding any claim that doesn’t link its method to hardware goes a bit too far.

  10. 345

    Yeah. Right on. Greetings Dr Z. As to speculative “inventions”, a concrete, tangible and immensely “useful” winning lottery number is not at all “obvious” either. Is that then patentable? if so, would it be what has become known as a “trivial” patent? Not if it’s actually the winning number, surely?

    Shift the filtering burden to 103. Europe already went there, and already did that. It does have the political merit, that it defers the moment of truth. But 103 is opaque enough already, don’t you think, without burdening it with deciding patent-eligibility too, and thereby damaging its clarity even further.

    What fun we all have, with simple words like “any” and “process” and “useful” and “arts”, “patentability” and “patent-eligibility”. Not craziness, just humans, out of their depth, conscientiously trying their best to do a good job. And greetings, Dr Z.

  11. 344

    Bilski, Bilski
    Wherefore art thou Bilski?
    Whether ’tis nobler in the end
    To suffer the slings and arrows of 101
    Or to take up 103 and 112
    And by applying them properly
    End the nonsense

    with apologies to the Bard

  12. 343

    My god, over 300 comments and I really have nothing to say except hello Max!

    I’m waiting until this the SC oooks out its decision. I do miss concrete, tangible, and useful. It was the most efficient (best) way to deal with 101 eligibility. The PTO simply cannot perform the search (and thus also 102, 103), which is the real problem driving all this craziness.

  13. 342

    ping, do me a favour. Tell me how my take differs from the one the Government took, when presenting oral arguments to the nine justices. Seems to me eminently reasonable. That’s why I repeated it here. What’s so funny about it all?

  14. 340

    So here’s why Bilski is taking so long.

    “Useful arts” means “technology” and so does not include business methods as such.

    For Congress to have allowed patents on more than the useful arts was unConstitutional.

    If a computer is implied by the claim, then the claim is not directed to an “abstract” business method. It has technical character, so it survives 101 and falls to be judged by 102, 3 and 12.

    But there’s a snag. Whereas 103 law in Europe invokes “technical” to shut out non-technical non-obviousness, US law on obviousness doesn’t. Thus, if SCOTUS takes the European 101 road, but remains silent on 103, patentability will henceforth depend on form, not substance.

    Finding a patch for that snag is what’s taking the time.

    Paul Cole, are you there? Your thoughts?

  15. 339

    “All right. With some kidding put aside (based on Hitch Hiker Guide 2 Universe), programmers and patent practitioners sound off at each other with similar sounding words and yet ascribe very different meanings to those words. That leads to much miscommunication and misunderstanding.

    Example words that have different and often ambiguous meanings: “process”, “function”, “computer”, “software”, patent infringement and its consequences, patent-eligible subject matter, …”

    You sound like an examiner with your definitions and such :-)

  16. 338

    Nobody,

    Answer 1: 42
    Answer 2: 42
    Answer 3: No problem at all because the answer is always 42

    All right. With some kidding put aside (based on Hitch Hiker Guide 2 Universe), programmers and patent practitioners sound off at each other with similar sounding words and yet ascribe very different meanings to those words. That leads to much miscommunication and misunderstanding.

    Example words that have different and often ambiguous meanings: “process”, “function”, “computer”, “software”, patent infringement and its consequences, patent-eligible subject matter, …

  17. 337

    Question 1: how many programmers have legal backgrounds?

    Question 2: how many patent practitioners have programming background?

    We may have a problem…

  18. 336

    Ping,
    “I am sure that you can think of lot’s of things you can “use” on/with a computer without having to configure one”
    If I use the ordinary definition of configure, then editing configuration files and installing operating systems would count, but creating and/or running software on it wouldn’t.

    If I use your definition of configure (anything that changes the behavior of a computer), then at the very least, editing config files (either directly or through a dialog box), using a command line, running a compiler or interpreter, installing new software, uninstalling software, updating software, use of spreadsheets, viewing PDFs (which use postscript internally), Java/Javascript/Flash, and HTML would count. I think that’s more than 10% of everyday usage.

    “Can you use a pdf reader when I say you can use one?”
    I can use one whether or not you say I can. If you’re putting restrictions on what can and can’t be done on a computer for your challenges, they aren’t really about a general purpose computer.

    “if you still can’t figure out PMD, ”
    I think it’s more of an issue that you never spelled out what your PMD argument was all about.
    Here’s the reference I used:
    link to digital-law-online.info

    “and you were a bit thick on that”
    I never said that reading words on a screen was equivalent to executing code.

  19. 335

    Quite a trick to have no structure and yet functionality. Is that possible? No. In fact, it is on its face ridiculous. Unless thinking is done magically.

    MM: you continue to re-hash the same lame arguments. The fact is that if information processing methods are held ineligible for patentability then it will have to be judicial activism or by legislation. Your lame arguments can be used by the SCOTUS to do whatever they want but it doesn’t make the arguments valid. And you repeating them over and over doesn’t make them right or you a strong person.

  20. 333

    And if you still can’t figure out PMD, maybe if you ask real real nice, IANAE will splain it to you – he’s the one with the answers (although he tried splainin the difference between reading words on a screen and executing code to you and you were a bit think on that).

  21. 332

    Hush now, mike. 6 is getting ready to give his answers.

    And mike, I just just pointing out that you claimed a flaw and their wasn’t one. Now you want more explainin? I am sure that you can think of lot’s of things you can “use” on/with a computer without having to configure one – I’d say that 90% of the people in the world do this every single day – it shouldn’t be too hard for you to figure this out. Can you use a pdf reader when I say you can use one? A simple yes or no will do (who said anything about absolute? are you trying to put words in my mouth now?).

  22. 331

    @ping:
    “Here “use” does not mean “configure”
    My point is essentially that the two aren’t really different, so how does stating that your position is different from mine get us anywhere?

    “I did not give you permission to change anything else”
    If I need ‘permission’ to change absolutely anything on the computer, then I’m not really allowed to use it, am I?

    I’ve looked up the PMD, and I see no relevance to my objection to your scenario.

  23. 330

    “I assure you there would be no Bilskiification o this method.”

    What about preemption of the algorithm, AKA Bensonification? Obviously, it’s only useful with the robot, since it contains limitations to using the robot parts. If the claim preempts the algorithm itself, then the claim is invalid, right? How can you comply with Bilski in this manner without introducing a preemption problem?

    What about Flookification and Diehr Disentification? Stevens made it clear that there have to be new structural parts right? Old parts combined with a new algorithm will not pass 101, and that’s all you have here, isn’t it?

  24. 329

    Order in the Court.

    mike, stay your tongue – 6 is on the stand.

    And mike, you claim a flaw, yet it is you that are flawed – you are mixing elements of the challenges. Challenge 2 was the one with a general purpose machine, but that challenge also held “Here “use” does not mean “configure”” and “you are barred from the hindsight knowledge of my invention” (trumpet blairs), while it was Challenge 4 that held “yet another contest wherein I spot you a computer changed enough to display pdf files on a monitor” – I did not give you permission to change anything else (trumpet blairs again).

    Besides, have you done your homework yet? Do you know what PMD is?

  25. 328

    SCOTUS-
    Just get rid of all method claims and CRM claims. This would solve all of the current problem areas (with the exception of gene patenting) and would have minimal effect on business (well, businesses that don’t revolve around bathroom scheduling, at least).
    Thanx!
    Teh Public

  26. 326

    @ping:
    “And doing more than viewing that wasn’t an option given to you was it (I didn’t say that you had an extractor or compiler)?”

    I actually wasn’t accepting your contest, just pointing out a flaw in it. However, you said, “your machine has been loaded with software to the PHOSITA level of a general purpose machine.” While ‘PHOSITA level’ isn’t exactly defined, it would surely include basic tools like a compiler.

  27. 325

    6,

    Stop messing around – the grand court is still awaiting your answers.

    Their contempt charges can be steep.

  28. 323

    A method comprising:

    detecting, with a camera, a towel;
    picking up the towel in a claw;
    orienting the claw so that the towel hangs loosely.

    BAM 101 compliant. You could probably leave out the camera part, I just put it in for flavor to show how some rtards like to make confusing parts of claims instead of simply putting it at the end of the clause. I could do the rest of your claim for you but I think you get the picture.

    Heck, make it:

    A robot operation method comprising:

    if you’re really feeling frisky.

    I assure you there would be no Bilskiification o this method.

  29. 322

    No you. You guys love to criticize, find fault, tear down, and destroy because it’s easy, and it fits your personalities. It’s time for the shoe to be on the other foot.

  30. 321

    An article that led me to that vid seemed to indicate that the robot can’t feel at all, and no robot can,

    Sounds like the stage is set for a heartwarming alternative ending to the video.

    It appears to me that the robot: (methods)

    That actually sounds a lot like how I fold towels.

    You’re not far off from 101-compliance as it is, if you ask me. Just put it in claim language, and for the love of Pete E. Oh, don’t include steps of “providing a robot arm” and “providing a towel”.

  31. 320

    “I have no trouble at all believing that a good claim could be drafted to a method for folding a towel.”

    Please watch the vid and give it a go.

    An article that led me to that vid seemed to indicate that the robot can’t feel at all, and no robot can, and that is what makes the non-rigid object manipulation such a difficult problem.

    It appears to me that the robot:
    sees the towel;
    picks it up in one claw;
    orients the claw so that the towel hangs loosely;
    turns the towel while observing the edge lines of the towel to find two corners;
    grasps one corner;
    grasps the other corner;
    stretches the towel horizontally;
    twists one corner and then the other corner to determine whether the grasped corners are adjacent;
    changes the grasp point if the corners are not adjacent;
    determines whether the length of the towel stretched by two adjacent corners is greater than the width;
    changes the grasped corners if needed to make the length of the stretched towel greater than the width; and
    folds the towel once it is grasped by two adjacent corners and is observed to have a length greater then its width.

    Now, please use that information to write your 101 compliant claim.

  32. 319

    6 and IANAE, thanks for this discussion. It really got me thinking about fundamentals — again. I appreciate that.

    Again, thanks.

  33. 318

    Boiled down, your real complaint is the form of the claim, not whether there is an invention.

    Pretty much. I can’t understand why people insist on claiming a computer or a computer-readable medium when what they’ve really invented is a set of instructions (i.e. a process) for a computer to carry out.

    I have no trouble at all believing that a good claim could be drafted to a method for folding a towel.

  34. 317

    Ned Typically a machine or article has to have novel structure

    Not “typically”. Always.

    in software, the invention is in the novel functions

    Legally speaking, a novel “function” is not an invention, just like a novel “state of being” is not an invention and just like a novel “poem” is not an invention, regardless of the fact that novel states of beings, poems, and functions are all desirable.

    Now, you would agree that a method of programming a computer would be patentable. The question would then become who was the direct infringer, whether the software sold over the counter or the improved machine was a direct or indirect infringement.

    The programmer of the computer is the direct infringer of the method of programming the computer.

  35. 315

    6 and IANAE, I think I understand your difficulty. Typically a machine or article has to have novel structure, while in software, the invention is in the novel functions. Now, you would agree that a method of programming a computer would be patentable. The question would then become who was the direct infringer, whether the software sold over the counter or the improved machine was a direct or indirect infringement.

    Boiled down, your real complaint is the form of the claim, not whether there is an invention.

  36. 314

    “I doubt that I or anyone could write a method claim that you or MM wouldn’t tear apart as mental steps or something like that.”

    You just told us all about some twistING and turnING of robotic arms etc. iirc. All of those are completely valid as method steps. But, in the event that they do get torn apart, (probably by prior art and our good friend 103) what concern is it of yours? They invented a new method and didn’t get coverage because of failure to meet the req’s o da lawl. Boo hoo, it happens every day in my office. Happened just yesterday, no tears were shed.

    “Do you think you could write a claim to the method that would pass muster under 101?”

    Yes. Now, 103 is a different matter.

    I’ll write you one later I don’t have access to the vid atm.

    NAL already has one young en’ if you believe her. Kindergarten age iirc. But I don’t actually know her irl. I know who she is, but I don’t know know her.

    The rest of you gotta wait, I got some things to do.

  37. 313

    Does this robot have eyes, or does it just operate by feel?

    It’s particularly important to define this aspect structurally, because there’s already motivation in the prior art for knowing where your towel is. No “computer-foldable medium” claims, please.

  38. 312

    I doubt that I or anyone could write a method claim that you or MM wouldn’t tear apart as mental steps or something like that. Do you think you could write a claim to the method that would pass muster under 101?

    Well, you could avoid the pure mental steppery by referring to the machinery that must be used (scales, pressure sensors, etc). The method sounds very complex, involving a lot of measurements and data analysis. Does this robot have eyes, or does it just operate by feel? Can it fold towels of all different thicknesses and sizes with this method? Seems to me that the claim would be rather narrow assuming that it is “different” from the steps (mental and physical) that take place when a human folds a towel (also a complicated method, when you write it down, and perhaps even more complicated for a blind person).

  39. 310

    Calling NERD Heller. Are you there. The man who tells me how to run my Country. And also word for word recites the scare message I got earlier. And I thought the message if not from middle america it would be from the Orient. Silly me. It’s from Texas.

  40. 309

    then go look up

    6 – I’m the lazy one remember? Even given that, I found where “breadcrumbs” asked you that question awhile back – you didn’t answer then.

    I don’t remember seeing anything from you on this in the last month – It’s ok that you don’t have an answer. I like the sound of the trumpets.

  41. 308

    You give it a try then, and see what happens.

    I concentrated really hard, but the towel barely even moved.

  42. 306

    I doubt that I or anyone could write a method claim that you or MM wouldn’t tear apart as mental steps or something like that.

    Folding a towel is mental steps for you? I’m impressed.

  43. 305

    “So patent the method?”

    I doubt that I or anyone could write a method claim that you or MM wouldn’t tear apart as mental steps or something like that. Do you think you could write a claim to the method that would pass muster under 101? If you have time, will you please present an example method claim that you think would be 101 compliant?

  44. 304

    Oh and finally:

    “Clearly, the method of folding the towels is quite different from that used by people. ”

    So patent the method?

    “How do you guys think he would rule on 101 here?”

    Depends on how it was claimed. Care to submit a hypo?

    And anyone I didn’t get back to, sorry, I’m a busy man n it’s time fo work. Got a party to plan tonight.

  45. 303

    MMMM says (MM’s double) : dang gone it. I can’t touch and hold it so it ain’t nothing. Why interacting with other things that ain’t new. I do that with myself all the time.

  46. 302

    Oh and finally:

    “Clearly, the method of folding the towels is quite different from that used by people. ”

    SO PATENT THE FI N METHOD JE SUS F IN CHRIST
    !!!!!!!!!!!!!!!!!!!!!!!

    “How do you guys think he would rule on 101 here?”

    Depends on how it was claimed. Care to submit a hypo?

    And anyone I didn’t get back to, sorry, I’m a busy man n it’s time fo work. Got a party to plan tonight.

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