IN DEFENSE OF SOFTWARE PATENTS – PART 2

Guest Post by Martin Goetz

 

Back on November 30, 2009, Patently-O published my article “In Defense of Software Patents” in response to the editorial “Abandoning Software Patents” by Ciaran O’Riordan, Director of End Software Patents (posted on Patently-O on November 6, 2009) which had as its premise that software companies are trying to protect “software ideas”.

 

In this article I comment on the Bilski Opinion as well as give some concrete examples of software-only patents as well as hardware/software patents. Also, my previous article received hundreds of comments, many being negative, and part of this new post is in response to those negative comments.

 

Since the June 28th Supreme Court Bilski decision there have been many articles[1] on what the Opinion stated and inferred about the patentability of software.

 

The Opinion restated what previous Supreme Courts concluded: that laws of nature, physical phenomena, mathematics, mathematical formulas (by themselves), algorithms (by themselves), and abstract ideas (which would include software ideas) are not eligible for patent protection.

 

While the Bilski Opinion never directly questioned the patentability of software, the Justices wrote extensively about the meaning of Section 101, the meaning of the term “process” and why the test for patent eligibility should not exclusively be “the machine-or –transformation test”. Justice Kennedy, with the concurrence of all other Supreme Court members, wrote that the Information Age puts innovation in the hands of more people and raises new difficulties for the patent law (and the Patent Office) to determine who should or should not receive patent protection.[2]

 

My November 2009 Patently-O article “In Defense of Software Patents” produced hundreds of comments. Many wrote that they were against the patenting of software because software was an “algorithm” or “mathematics”. In that article my primary argument was that a computer software invention is as patentable as a computer hardware invention and the only difference is the mode of implementation. My thesis was that Software Product companies in the Software Industry are looking to patent a machine process and not a computer program, which is protected by the copyright law. I showed why software product companies can be viewed as high technology manufacturing entities and should be just as eligible for patent protection as computer hardware companies.   

 

In this article I give examples of patents where the preferred implementation of an inventive machine process is in software (via a computer program[3]), hardware (via circuitry), or a combination of both software and hardware.

 

There is little argument that “processes” and “machine processes” are patentable subject matter[4] The question has always been about the nature of software and what one is trying to patent. For over 40 years I have been involved in that argument since I received the first software patent in 1968 for an innovative way to sort large amounts data on a computer that had tape drives that could only read and write data in a forward direction (See Patent # 3,380,029, Sorting System, Issued April 23, 1968).

 

The Sorting System patent was dubbed a software patent but it could also have been a computer hardware patent. It was dubbed a software patent solely because the preferred implementation (the disclosure) was a logic chart (which is recognized by the patent office as a proper disclosure). My Sorting System patent would not have been controversial if the disclosure had been hardware circuitry since there were many hardware patents for sorting data on special-purpose computers and special apparatus. In my patent application I referenced six of those patents which all had unique hardware circuitry in their patent disclosure. Three of them are available online, courtesy of Google Patent Search[5].

 

From 1968 through 1980 my previous company, Applied Data Research filed Amicus briefs in the Prater & Wei, Benson, Johnson, Flook, and Diehr cases in which we argued that a machine process patentable in hardware is equally patentable in software. Here is exactly how we posed a “Question of Law” “in our 1980 Diehr brief:

Whether a computerized machine or industrial process that is patentable subject matter under 35 USC 101 when constructed with a hardware program (wired circuits) would also be patentable subject matter when constructed with a stored computer program (i.e., firmware or software)?

The USPTO is currently in agreement with that “Question of Law” when in 1996 it published its Examination Guidelines for Computer-Related Inventions (Final Version).  The Guidelines stated in its Introduction the following: “The Guidelines alter the procedure office personnel will follow when examining applications drawn to computer-related inventions and are equally applicable to claimed inventions implemented in hardware or software.”

 

In that 1980 Diehr brief we also posed the following argument to the Supreme Court:

An inventor demonstrates his new invention to his patent attorney with great pride; he has developed a cabinet for reading books out loud to the blind. The cabinet contains both a reading and talking computer. After the demonstration, the patent attorney responds:

 

What's inside the cabinet? Did you build it with software or hardware (a stored program or hardware circuitry)? If built with a hardware program, your machine would be patentable. But if you built it with a stored program, the Patent Office would say it was merely mathematics and, therefore, unpatentable.”

The example above of a hypothetical “cabinet for the blind” invention was back in 1980 in our Diehr Amicus brief.

 

Twenty years later, in 2000, a renowned inventor, Ray Kurzweil received a patent named Reading System which Reads Aloud From An Image Representation Of A Document. The patent disclosure shows a diagram of a monitor, scanner, speakers, and a PC computer composed of a processor, storage and a keyboard. The essence of the disclosure and the invention is a logic chart describing a machine system which interacts with a speech synchronizer and the various devices.  

 

The first sentence of the abstract in the patent stated “a reading system includes a computer and a mass storage device including software comprising instructions for causing a computer to accept an image file generated from optically scanning an image of a document.”

 

At that time, Ray Kurzweil’s company, Kurzweil Educational Systems marketed a special purpose hardware/software system called the Kurzweil 3000 Reading Machine which was marketed to the blind and poor readers. Their 2000 year patent protected this product from imitators. Today the company sells a software only system called Kurzweil 3000 and continues to have the protection of the patent system thru his original 2000 patent and with additional patents e.g., Reducing processing latency in optical character recognition for portable reading machine (which is a software-only patent).

 

Few would argue that the Kurzweil 3000 Reading Machine was not an invention and not deserving of a patent.

 

While I am a strong advocate for software-related patents I have always been opposed to the patenting of Business Method Patents (BMPs). In my 2006 article Patents: Where's the Invention? I stated that the Patent Office should do what the European Patent Convention did when it  ruled that anything that consists of "schemes, rules and methods for performing mental acts, playing games or doing business, and programs for computers" is not an invention and therefore not patentable.” Justice Stevens, in his Opinion[6] also wanted to ban BMP’s from being patentable subject matter when he concluded that a method of doing business is not a “process” under 101.

 

Although the Bilski Opinion disallowed the Bilski application they stated that under certain conditions business methods could still be patentable subject matter. On July 27th the USPTO set up more stringent rules for the issuance of BMPs in their Interim Guidance for Determining Subject Matter Eligibility for Process Claims in View of Bilski v. Kappos. In many ways those guidelines are similar to the way computer software and hardware patents are currently being treated under the 1996 Guidelines for Computer-Related Inventions.    

 

One of the greatest challenges facing the Patent office today for BMPs, software or hardware patent applications is in discovering prior art and determining if there is an invention. The USPTO “Peer to Patent” pilot project” which  allows the public (including professionals in their respective fields) to comment on patent applications is still in its infancy, but offers the potential to assist the Patent Office in rejecting the large number of applications that are filed each year. The stated goal of the pilot project was to “connect the USPTO to an open network of experts online.”   Also, private companies e.g., the Article One Partners, a patent research firm, have the potential to significantly reduce the large number of patent litigation cases.

 

In conclusion, while I am a strong proponent of software patents I am very aware, and agree with, many of the arguments against patents because of patent trolls, frivolous patents, e.g. Amazon’s one-click patent, and frivolous patent litigation that can put companies out of business. And I support changes in the Patent Law to reduce those problems. But if one believes in the how the Patent System has fostered innovation and helped the US grow and prosper, then there is no rational reason to eliminate technology inventions that use software as its implementation.

 

In my previous article there were many comments from die-hards that continued to believe that software companies are trying to patent a computer program,  Whether those die-hards still  believe that a computer program is mathematics, or a mathematical formula, or an algorithm, or an abstract idea, so be it. Computer software programs are not what software companies are trying to patent. A software patent invention is on a unique machine process —- nothing more and nothing less. And the criteria should be 1. Innovation 2. A proper disclosure and 3. Usefulness — the same requirement that is the criteria for all patentable subject matter.


[1] Click below for a sample of many of these articles. Reading the Bilski Tea Leaves For What The Supreme Court Thinks Of Software Patents Comments on Bilski and Software Patents; Here's Bilski: It's Affirmed, But . . .No Decision on Software Patentability; Supreme Court Decision Raises Software Patent Questions; Supreme Court 'Bilski' ruling doesn't rule out software, business-method patents; Software patent debate rages on; Software, pharmaceutical, and business method patents survive; Patent Office Says No to Supreme Court and Software PatentsDeath Knell For Software PatentsSoftware Is Not Necessarily Business MethodSoftware Patents and Business Method Patents Still Possible after Bilski Supreme Court Decision.

 

[2](Underlining and bold added) (pages 9 & 10) “The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age—for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. As numerous amicus briefs argue, the machine-or-transformation test would create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals. See, e.g., Brief for Business Software Alliance 24– 25; Brief for Biotechnology Industry Organization et al. 14–27; Brief for Boston Patent Law Association 8–15; Brief for Houston Intellectual Property Law Association 17–22; Brief for Dolby Labs., Inc., et al.”

 

The Opinion went on to state:

It is important to emphasize that the Court today is not commenting on the patentability of any particular invention, let alone holding that any of the above-mentioned technologies from the Information Age should or should not receive patent protection. This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck.

[3] While the implementation is in a computer program, the disclosure for one skilled in the art, are thru flow charts (also called logic charts) and thru block diagrams.

[4]. The Bilski Opinion closely examined the meaning and the words of 35 U.S.C 101. From 35 U.S.C. 101: Inventions patentable: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent there for, subject to the conditions and requirements of this title.

[5] The Sorting Patents below were described thru and/or gates, and as methods and apparatus for sorting data. Sorting Device, Fillebrown, 5/1961 #2,985,864; Sorting Apparatus, Guerber, 5/1960 #2,935,732; Apparatus for sorting of Recorded Digital data, Dirks 3/1966 #3,242,466.

 

[6] (page 15) Because the text of §101 does not on its face convey the scope of patentable processes, it is necessary, in my view, to review the history of our patent law in some detail. This approach yields a much more straightforward answer to this case than the Court’s. As I read the history, it strongly supports the conclusion that a method of doing business is not a “process” under §101.

 

596 thoughts on “IN DEFENSE OF SOFTWARE PATENTS – PART 2

  1. 596

    Any more information on the “Associate Commissioner for Innovation Development”? I wonder if the USPTO is looking for more technologies for improving examination efficiency.

  2. 595

    I almost wish more Applicants would be willing to appeal.

    I’ve actually noticed some Examiners lately seem to try and keep the applications out of condition for appeal. Are Exmainer’s getting dinged for reopening prosecution?

  3. 594

    LOL,

    Is the big bad Patent Office losing its Strong Arm fake judiciary in a shake up to make the judiciary appear above the taint currently associated with taking their pay from the very same party they be ajudging?

    What if this backfires and the BPAI actually treat examiners and applicants with equal deference (including the stoppage of cherry picking cases that are accepted in order to “make judicial law”.

    6, you think your appeals smack you upside the head now, you aint seen nuthin yet.

  4. 593

    I wonder if this is what Shaking My Head was alluding to:

    link to uspto.gov

    It also transfers the reporting of the Board of Patent Appeals and Interferences and the Trademark Trial and Appeal Board, which were formerly part of the Office of General Counsel, to the Office of the Under Secretary. Additional changes involve the Patent Organization – including the addition of an Associate Commissioner for Innovation Development – and the Office of the Administrator for Policy and External Affairs to better align and clarify competencies and functions performed by those organizations.

  5. 592

    its obvious you still don’t know who grants Congressional Power.

    The army?

    The almighty dollar?

    If the opposite of “pro” is “con,” then what’s the opposite of “progress?”

  6. 591

    Have you figured out what a “Congressional Power” is yet, and how it is different from a “Constitutional Right?”

    /hatches evil plan to keep thread going

    Posted by: TINLA IANYL | Sep 29, 2010 at 04:0
    _______________________

    As the producers of Hawaii 5 0 will soon learn, you should never attempt to remake a classic. Besides its obvious you still don’t know who grants Congressional Power.

  7. 586

    Impressive yes, but no thread will ever surpass the Constitutional Right to a patent debate thread(s) which BTW the Actual Inventors won. :-D

    Amen to that, AI. I salute your munificent and esteemed self once again!

  8. 585

    “Constitutional Right to a patent”

    I still LOL every time I read that.

    Have you figured out what a “Congressional Power” is yet, and how it is different from a “Constitutional Right?”

    /hatches evil plan to keep thread going

  9. 584

    The bugle call and the faint “mehing” sound you hear from 6 reverberates with the poster above, answering the namesake question, and signifying the power of TINLA’s “/thread”

    Posted by: ping | Sep 28, 2010 at 08:09 PM

    Impressive yes, but no thread will ever surpass the Constitutional Right to a patent debate thread(s) which BTW the Actual Inventors won. :-D

  10. 582

    The bugle call and the faint “mehing” sound you hear from 6 reverberates with the poster above, answering the namesake question, and signifying the power of TINLA’s “/thread”

  11. 581

    Meh there wasn’t much in that article actually. It was mostly about the law as it actually is, which I don’t care much about.

    There, fixed it for you.

  12. 579

    There are these two guys hanging out on the corner of Beauregard BLVD and MPF AVE, sporting picket signs that read “The End is Near.” A third joins them and says, “Hiya MM and 6. What’s up?” They reply, “Hiya, IANAE. The end is near, don’t ya know?” IANAE replies, “Yup. Here’s my sign.”

  13. 578

    Classic chuckles 6 – simply classic.

    You supply the references, you note how interesting they be, and then them same references turn around and Ki ll your position. “Meh there wasn’t much in that article actually.” Dem references have plenty to say about functional claiming.

  14. 576

    “Any updates on this fine excursion into the unknown for the one called 6?”

    Meh there wasn’t much in that article actually. It was mostly about 112 6th nonsense which I don’t care much about.

  15. 575

    Primer to be published soon by 6:

    “Everything I didn’t like when I learned me about the actual Law.”

    Hows them studies coming along 6? Let me guess – both the legislature and the courts were feeling mighty generous on those special days and ruined the system for everyone, right?

  16. 574

    Yep. I’m reading an article about it now.

    Any updates on this fine excursion into the unknown for the one called 6?

  17. 573

    Actual Inventors win again.

    Posted by: IANAE | Sep 24, 2010 at 04:27 PM

    “Actual Inventors win again.”

    They always win :(

    lol.

    Posted by: 6 | Sep 24, 2010 at 04:29 PM

    ______

    True, but you have to actually be an Actual Inventor, to be a winner.

    But don’t worry because you always work for one. ;-)

  18. 571

    What’s interestin 6, is that your posts sound more and more like the bugle call of full retreat.

    Sure, O’l Steinie’s notes aint got the force of law, and neither do the Mighty Landis, from whom those notes be takin. But iza say that either of those two have better positions than anything you’ve done thrown up on this thread.

    And what’s also interestin is your backtrackin when it comes to Rich and company. Ya see, when a majority (not one) o judges decide a case and make law that’s one thing – but it smacks of pretty nigh conclusive when one of those judges intersects with the architect of the legislative law. As much as you don’t like it – both avenues of law say you be wrong. Plus given the fact that the physics (the real world) facts also paint ya wrong, ya be left holdin the Willton bag of “policy only” driven by your wanna be philosophy.

    Svcks to be you.

  19. 569

    If means is the data on the DVD/ Disc. And function is the Computer? And if the data can’t function unless it uses something to read it…..Doesn’t that just stop it at means with no function until it’s read?

  20. 568

    Students interested in functional claiming can look here to find the decision where it appears the judiciary first started to f with the pre-1952 act nigh “ban” on functional claiming.

    Fuetterer, 319 F. 2d 259 – Court of Customs and Patent Appeals 1963

    link to scholar.google.com

    They base their finding on a number of things in this particular case, including one outrageous one. This being the writing of a scholar of the 1952 act stating his belief that more functional claiming is now allowed with the introduction of (what is now 112 6th, but used to be 3rd para). Well no sht sherlock, the kind that is specifically sanctioned by it is now allowed where it wasn’t before.

    So, in any event, we have these guys to thank for assisting breaking the patent system:

    Before RICH, MARTIN, SMITH, Associate Judges.

    In particular RICH, Judge, who wrote the opinion.

    And we have these guys to thank for attempting to preserve the respectability of the patent system and continue to ensure what we would now call enablement over the entire breadth of functional terms:

    WORLEY, Chief Judge, with whom ALMOND, J., joins (dissenting).

    One dude changed how you draft applications today. Too bad the PTO didn’t get the USSC to remedy the situation right then. Now here we are, 50-60 years later still waiting on a case to do the deed.

  21. 567

    “Yeah 6, I be waiting to ya get to the interestin parts that negate everything you have said on this here thread.”

    Lol, what Landis and David Stein think is the law is quite irrelevant. All I said was that it was interesting. They provide no justification (at least david doesn’t, and I don’t recall Landis doing it either) for their beliefs in some specific points of lawl that you’d like to be the lawl. They simply say that they are allowed ways of claiming. He’s right, nobody has bothered to smack them down just yet, they are allowed. When I smack them down in my own office they naer make a peep. Too bad too, because I’d be all too happy to disabuse these fellas of their “allowed” formats.

    And pinger, I told you to stop doodling in the thread, so stop ya tard.

  22. 566

    Interesting reading notes from Landis by David Stein (he’s on here sometimes)…

    Yeah 6, I be waiting to ya get to the interestin parts that negate everything you have said on this here thread.

    Let me know if ya still think it be interestin then, will ya?

  23. 565

    “6, you have to know that Congress responded to that debate by explicitly changing the statute in 1952 to say that we can claim things functionally. ”

    Yep. I’m reading an article about it now.

    “What IANAE has a problem with is that the CAFC has said the disclosed algorithm is the structural means”

    Yeah I have a problem with that too because it is a lie. But, so long as it is means p f, I’m not that concerned about it really. Mpf is just asking for invalidation lately.

    I’m not so worried about mpf, just f limitations by themselves are what holds interest for me.

    A pity that congress did not write 112 7th paragraph to ban the rest of functional claiming and make you use MPF.

  24. 564

    6, you have to know that Congress responded to that debate by explicitly changing the statute in 1952 to say that we can claim things functionally. What IANAE has a problem with is that the CAFC has said the disclosed algorithm is the structural means. A different algorithm that does that functions in the same way to achieve the same result would not infringe becaseu the patentee doesn’t get functional equivalents under the DOE with M+F. But the same algorithm used to accomplish something else is still a structural equivalent.

    Happy Friday! I’ll pwn yu later.

  25. 563

    Here’s a nice one from 1995 “bringing theory into practice: predictable scope for functional patent claims” JPTOS 1995

  26. 561

    MM, if you look at the Lowry decision it is actually to something different than you think it is. They are, in essence, iirc, claiming a different manner of storing small data packs, physically, on the computer. They’re not trying to patent the information content thereof.

    That I have less of a problem with than trying to patent the content of the information by putting it on a disk etc and calling the disk new.

  27. 560

    Here is what I was looking for in the first place though. General Electric v Wabash, 304 US 364, 1938 CD 813.

    “The court of appeals for the night circuit relied on the fact that the description in the claims is not “wholly” functional. 80 F. (2d) 958, 963. But the vice of a functional claim exists not only when a claim is “wholly” functional, if that is ever true, but also when the inventor is painstaking when he recies what has already been seen, and then uses conveniently functional language at the exact point of novelty.
    A limited use of terms of effect or result, which accurately define the esential qualities of a product to one skilled in the art, may in some instances be permissible and even desirable, but a characteristic essential to novelty may not be distinguished from the old art solely by its tendency to remedy the problems in the art met by the patent. And we may doubt whether the language used in claim 25, taken by itself, conveyed definite meaning to those skilled in the art of incandescent lighting”.

    Claim 25:

    A filament for electric incandescent lamps or other devices, composed substantially of tungsten and made up mainly of a number of comparatively large grains of such size and contour as to prevent substantial sagging and off-setting during a normally or commercially useful life for such a lamp or other device.

    I note that I also share the opinion with the court about 112 here. We have relative terms aplenty.

  28. 559

    broje You start out saying the caselaw only permits Beauregard claism becasue the PTO took a dive on the issue.

    That wasn’t the argument. The argument is there is no reasoned legal basis for allowing methods carried out by a computer to be claimed as compositions where the applications disclose zero novel structure which would distinguish these compositions from the prior art. Period.

    It’s very simple, broje. Only two types of people don’t “get it”: rhymes with criers and borons.

    And then there was that WIDFTL character upthread who claims it’s all justifed by In re Lowry which is an incomprehensible self-contradicting piece of crxp that Rader pulled out of his axx.

  29. 557

    man broje, you might like what Learned Hand had to say about smacking down functional claiming. Check out Royal Typewriter v. Remington Rand 77 USPQ 517. He smacked em down hard back in the day.

    I quote: From the beginning courts have held, that since the claim is the measure of the monopoly, it must advise the public of its scope, and may not be stated in terms of ends or purposes, for that would extend the monopoly to all contrivances which would accomplish the same results, and these might owe nothing whatever to the patentee.

    He goes on to note how there needs to be a reasonable balance between this and the “drafter’s dilemma” of not having anything worth claiming if they can’t use some functional language.

  30. 555

    Man this is cool, I just found a PTOS publication from 1949 entitled “Functional Claiming” and the first few things it says is that the subject was argued for generations at the time of publishing. I’m reading the article now.

  31. 553

    Now show me some case law that interprets 112 in the strict way you say, that structural equivalents necessarily have to be narrower than functional equivalents.

    How about that case Ned keeps citing, that said functional claiming at the point of novelty is indefinite? You know, the one that led to 112 6th being enacted in the first place.

    That one was a Supreme Court case, and I sure as heck can pick and choose caselaw if it means disregarding Federal Circuit cases that contradict the Supreme Court.

  32. 552

    LOL. You start out saying the caselaw only permits Beauregard claism becasue the PTO took a dive on the issue. Then I kept pounding you with different caselaw to show otherwise, and you keep saying you disagree with those cases. You can’t pick and choose from the caselaw. It’s hurting your credibility.

    Now show me some case law that interprets 112 in the strict way you say, that structural equivalents necessarily have to be narrower than functional equivalents. Don’t come back without one or I will make fun of you, and you will cry. qq

  33. 550

    So long as the computer readable medium contains instructions that carry out the disclosed algorithm, it must be a structural equivalent. That’s the only logical conclusion.

    It’s not a logical conclusion at all, because it’s contrary to 112 6th. The only reason 112 6th exists in the first place is to make means-plus-function claims narrower than “anything that performs the function”, which would otherwise be indefinite.

    This conclusion is about as ridiculous as the “it’s a whole different computer now!” bit immediately preceding it.

    Strange, Rader is usually better at this.

    Checkmate.

    Actual Inventors win again.

  34. 549

    Come on Broje, give us the whole quote.

    “For computer-implemented means-plus-function claims where the disclosed structure is a computer programmed to implement an algorithm, “the disclosed structure is not the general purpose computer, but rather the special purpose computer programmed to perform the disclosed algorithm.” WMS Gaming, Inc. v. Int’l Game Tech., 184 F.3d 1339, 1349 (Fed. Cir. 1999). Thus the patent must disclose, at least to the satisfaction of one of ordinary skill in the art, enough of an algorithm to provide the necessary structure under § 112, ¶ 6. This court permits a patentee to express that algorithm in any understandable terms including as a mathematical formula, in prose, see In re Freeman, 573 F.2d 1237, 1245-46 (CCPA 1978), or as a flow chart, or in any other manner that provides sufficient structure.”

    Checkmate urself lol.

  35. 548

    The reason Judge Rich said the indica on the measuring cup is acceptable as patentable, is because it is a measuring cup. And without the markings to show the measure it would be just a cup.

  36. 547

    “The CAFC has ruled that disclosing an algorithm, psuedocode, detailed step by step process, mathematical equation, etc. fulfills the requirement to disclose means for the claimed function.”

    That is a rather generous reading of WMS.

    “Any computer readable medium containing software that functionsin that way is then a structural equivalent.”

    That is a rather um, “creative” application of a rather generous reading you just made up of WMS. “structural equivalent” lol, I like that broje, you make that up all by yourself?

  37. 546

    link to cafc.uscourts.gov

    “the patent must disclose, at least to the satisfaction of one of ordinary skill in the art, enough of an algorithm to provide the necessary structure under § 112, ¶ 6. This court permits a patentee to express that algorithm in any understandable terms including as a mathematical formula, in prose, see In re Freeman, 573 F.2d 1237, 1245-46 (CCPA 1978), or as a flow chart, or in any other manner that provides sufficient structure.”

    The structure is the algorithm disclosed. It is not necessary to specify the disk locations and pointers employed, or the target operating system. So long as the computer readable medium contains instructions that carry out the disclosed algorithm, it must be a structural equivalent. That’s the only logical conclusion.

    Checkmate.

  38. 545

    Any computer readable medium containing software that functionsin that way is then a structural equivalent.

    That last bit can’t possibly be right. If every possible structure that performs the function were automatically a statutory equivalent, 112 6th would be meaningless and your claim (now purely functional) would run into the same problems that functional claiming had before 112 6th was enacted.

  39. 544

    Okay, so claim the structure.

    If you claim functionally, you still need to describe the structure in the spec to satisfy 112 6th. I don’t think I’ve ever seen a written description of the microscopic structure of a computer-readable medium that corresponds to its function, much less any reason to include as statutory equivalents all possible structures of all commonly-accepted media that perform the same function.

    The CAFC has ruled that disclosing an algorithm, psuedocode, detailed step by step process, mathematical equation, etc. fulfills the requirement to disclose means for the claimed function. Any computer readable medium containing software that functionsin that way is then a structural equivalent.

    /thread

  40. 543

    But a disk storing one instance of software is physically/structurally different from an otherwise identical disk storing different software. Those structures are microscopic, but they are no less physical and tangible.

    Okay, so claim the structure.

    If you claim functionally, you still need to describe the structure in the spec to satisfy 112 6th. I don’t think I’ve ever seen a written description of the microscopic structure of a computer-readable medium that corresponds to its function, much less any reason to include as statutory equivalents all possible structures of all commonly-accepted media that perform the same function.

  41. 542

    But a disk storing one instance of software is physically/structurally different from an otherwise identical disk storing different software. Those structures are microscopic, but they are no less physical and tangible.

    You guys really just have a problem with the article being claimed using functional language, but the statute was amended by Congress in 1952 to allow that, especially because it can be possible to enable all possible structures by disclosing some example structures, yet impractical to disclose and claim all structures explicitly.

  42. 541

    “Sorry, chum. I don’t think you have an education in computer science/EE. Bad software can cause real physical harm to the hardware. It can break a headdisk and break a monitor forever.”

    Yeah I was going to tell him, but that whole line of discussion didn’t matter one whit so I didn’t bother.

    His original point (my point from a long time ago) about the CRM just sitting there doing the same thing, delivering the data thereon is correct. The fact that a reader device etc. might get blown up reading the data, or the comp or peripheral thereof might blow up after executing a bad program encoded by that data is quite irrelevant, the CRM just sits there. The CRM itself might even be destroyed by the reader etc. if bad data causes the device to malfunction, but still it just sits there.

  43. 540

    Bad software can cause real physical harm to the hardware. It can break a headdisk and break a monitor forever.

    Okay, so if you have a hard disk containing instructions for breaking itself, that will get you around the printed matter doctrine.

    Now, all you need is a credible utility for it.

  44. 539

    Is that your understanding?

    My understanding was that the perforations were also arranged differently from the prior art tickets, and that the significant feature of the invention was the ability to selectively remove one or two sections of the ticket while leaving the remaining sections attached to the ticket book.

    The Sixth Circuit considered that the invention “clearly involves physical structure”, which I assume means the perforations.

  45. 538

    >>No, it can cause the computer to fail to make proper use of the disk or the monitor. The disk and the monitor are still perfectly capable of performing their functions,

    Sorry, chum. I don’t think you have an education in computer science/EE. Bad software can cause real physical harm to the hardware. It can break a headdisk and break a monitor forever.

  46. 537

    Let’s get this straight. IIRC, there were already tickets with perforations and stuff printed on them. The patent was just for different stuff printed there, so that a conductor would tear perceive the ticket stub differently than previous ticket stubs. Is that your understanding?

  47. 536

    How do you figure?

    Because, as I explained yesterday, the arrangement of writing and perforations gives the ticket itself a broader range of functionalities. It makes the physical ticket usable for transfers in a way prior art tickets were not.

    It’s also useful without the train. You could use it for free drink refills, exit and re-entry to amusement parks or museums or the like after having paid the admission fee, or whatever. The train doesn’t matter. The ticket has learned a new trick.

  48. 533

    Unless you’ve found a way for the poem to cool off your cocoa somehow, the only functional relationship is with the reader.

    You could say the same about the indicia on the train ticket.

  49. 531

    Functional relationship?

    Unless you’ve found a way for the poem to cool off your cocoa somehow, the only functional relationship is with the reader.

  50. 530

    How about this poem on a mug:

    Cocoa really hits the spot.
    CAUTION contents may be HOT!

    Functional relationship?

  51. 529

    NWPA: A bad driver (software) can cause a disk to fail and a monitor to fail.

    No, it can cause the computer to fail to make proper use of the disk or the monitor. The disk and the monitor are still perfectly capable of performing their functions, the computer just doesn’t know how to tell them what to do.

    TINLA: The measuring cup contains and discharges milk, flour, or sugar the same way regardless of what kind of indicia are upon it. Yet Judge Rich said the indicia have a functional relationship to the measuring cup.

    Yeah, I did say I thought he had got that one wrong. Judges do that sometimes. He was right about the rejection being bad, and he got a bit casual with his language.

    TINLA: You keep acting like the machine that employs the instructions is just the computer, and not the combination of the computer and the disk encoded with the instructions.

    Even if it is the combination of the computer and the disk, that combination is still not positively recited in a Beauregard claim. But of course it’s not. The disk is only there to deliver a string of bits, and it does that no matter what the bits are. The substrate is the disk, and the disk is not functionally affected by the data on it.

    TINLA: Except maybe power. Do we have to claim the battery too?

    I would say that’s inherent once you claim the computer carrying out steps. Only, you’re deliberately not actually claiming the computer, so I can see why that would bother you.

    TINLA: As long as the substrate not being just any old piece of paper makes the indicia useful, as opposed just any old piece of paper, there is a functional relationship.

    A computer memory is no more than a digital form of “just any old piece of paper”. The printed matter doctrine was developed for this exact situation – one where the functional relationship is not with the piece of paper itself but with the person/computer reading the piece of paper.

    If you really wanted to, you could print your code on actual physical pieces of paper, and have the computer OCR it and execute the code. You’d need a lot of paper to hold the data on a single floppy or DVD, but it could be done. That paper would act as a data storage device in exactly the same way as any other computer-readable medium, and would have the exact same (absence of) functional relationship with the writing on it. So how can one medium be unpatentable printed matter and the other not, particularly when you don’t specify the type of medium in the claim?

  52. 528

    “You keep acting like the machine that employs the instructions is just the computer, and not the combination of the computer and the disk encoded with the instructions. ”

    Because it is?

    “You are wrong. Even if the instructions are transferred to another memory inside the computer, the claim can be read on that memory thereafter.”

    So…? That new memory doesn’t “employ” the instructions any more than the previous one did. And even if it did, how would it “employing” (said in whatever manner you’re stretching that word) the instructions have any bearing on anything?

    “But at the instant the disk is inserted in the computer, you have everything you need to accomplish the machine.”

    Accomplish the machine? Machines are “accomplished”? If they are, what relevance does “accomplishing” a machine have to anything?

    ” Imagine if you could buy a detachable trasparent sleeve of measuring cup indicia and apply it to any measuring cup. ”

    I could sell you one of those, so technically you can buy those you don’t have to imagine.

    “The modularity of the device does not eliminate the functional relation ship of the indicia to the transparent sleeve substrate.”

    You’re right, one never existed in the first place. Hard to eliminate something that never existed :( If you think I’m wrong, go ahead, make what the functional relationship is explicit for me. Remember, it has to be between the indicia and the transparent sleeve substrate and not between the indicia and a housewife’s brain.

    “As long as the substrate not being just any old piece of paper makes the indicia useful, as opposed just any old piece of paper, there is a functional relationship. ”

    Says Rich 50 years ago, probably deep in dementia already. But I can see that you’re now on board with pieces of paper being patentable too, so long as some software that makes a computer useful is thereupon.

    “The problem is that you guys just don’t understand the printed matter exception properly, that’s all. Break open Chisum and bone up on it.”

    Nah, I don’t personally care to apply it in any event, but it should apply to such situations. The fact that it doesn’t is a failure of the courts. I personally don’t mind it enough to take such a thing to the supremes, there are so many ways to accomplish what I desire I hardly need it.

    But let’s see what IANAE has to say.

  53. 527

    The measuring cup contains and discharges milk, flour, or sugar the same way regardless of what kind of indicia are upon it. Yet Judge Rich said the indicia have a functional relationship to the measuring cup.

    You keep acting like the machine that employs the instructions is just the computer, and not the combination of the computer and the disk encoded with the instructions. You are wrong. Even if the instructions are transferred to another memory inside the computer, the claim can be read on that memory thereafter. But at the instant the disk is inserted in the computer, you have everything you need to accomplish the machine. Except maybe power. Do we have to claim the battery too?

    Imagine if measuring cups were sold with detachable bottoms, and you could buy the measuring cup without the botttom and then combine it with a bottom. Imagine if you could buy a detachable trasparent sleeve of measuring cup indicia and apply it to any measuring cup. The modularity of the device does not eliminate the functional relation ship of the indicia to the transparent sleeve substrate.

    As long as the substrate not being just any old piece of paper makes the indicia useful, as opposed just any old piece of paper, there is a functional relationship. The problem is that you guys just don’t understand the printed matter exception properly, that’s all. Break open Chisum and bone up on it.

  54. 526

    >>Godel sentence on a disk can’t cause the disk to fail.

    A bad driver (software) can cause a disk to fail and a monitor to fail.

  55. 525

    Even putting the computer’s Godel sentence on a disk can’t cause the disk to fail. The most it can do is cause the computer to fail when it checks what’s on the disk.

    Well that cinches it. Now we know that Beauregard claims are invalid.

    This is one of the stoopider tangents on this thread that will not die.

    In my opinion, that is.

  56. 524

    That’s something which you would know if you had friends in the printer AU’s that deal with printer cartridges and their relationships with the ink therein.

    Or even if you’ve ever owned a printer. The OEMs will all tell you that refilling their cartridges with third-party ink may cause the cartridge to jam or otherwise fail.

    Even putting the computer’s Godel sentence on a disk can’t cause the disk to fail. The most it can do is cause the computer to fail when it checks what’s on the disk.

  57. 522

    “”When an ink jet cartridge is inserted in an ink jet printer, the cartridge behaves exactly the same no matter what ink it happens to be containing at the time. It sits there until the printer actuates its piezoelectric element, and then it outputs its ink without any regard at all for what the ink is”

    ^^^FIXT^^^

    Actually that’s not technically true, at least in some cases. It might be true in some few cases. That’s something which you would know if you had friends in the printer AU’s that deal with printer cartridges and their relationships with the ink therein. It is a good bit more complicated than you might think, at least sometimes.

  58. 521

    “When an ink jet cartridge is inserted in an ink jet printer, the cartridge behaves exactly the same no matter what ink it happens to be containing at the time. It sits there until the printer actuates its piezoelectric element, and then it outputs its ink without any regard at all for what the ink is”

    ^^^FIXT^^^

  59. 520

    I have a question for you MM: when is functional language used in the chemical arts? And why?

  60. 519

    What is today’s PMD?

    me quoting me.

    6,

    Ya might also ask yourself what caselaw controls today’s PMD. Feel free to tag Sunshine to help ya out, but I wouldn’t go to Ned, as he not be too reliable these days – he be two homework assignments behind.

  61. 518

    Dear AI

    Thank you. I’ll leave you alone now, none the wiser (me? you? both of us? You choose!)

    Posted by: Ah Pook | Sep 23, 2010 at 05:26 AM

    _______

    Ah Pook, ( I only call Ping Dear) I would love to continue to post the facts and law as to why business methods are legal, useful, and the bedrock of our society. But quite frankly I have already won that debate. No one, and I mean NO ONE, can or will answer the questions I posed or refute any of the facts, logic and law I have posted in this thread.

    You simply say, you don’t understand while others just cut and run. In either case its a win for Actual Inventors everywhere.

    We always win. ;-)

  62. 517

    6,

    What is today’s PMD?

    Of course this is an obvious attempt at keeping this wonderful string alive and kickin.

  63. 516

    Not until it is inserted in an ink jet printer.

    When it is inserted in the ink jet printer, the cartridge itself functions differently depending on what kind of ink is inside it. In principle, you could replicate that difference in function without the printer by simply causing the cartridge to deliver ink, you’d just have no real reason to do it. The point isn’t whether the cartridge needs the printer to function. The point is whether the functionality of the cartridge itself is affected.

    When a computer-readable medium is inserted in a computer, the medium behaves exactly the same no matter what data it happens to be storing at the time. It sits there until the computer asks for its data, and then it outputs its data without any regard at all for what the data is, maybe it stores some new data that is written back to the medium, again without any regard to the data itself, and that’s it.

    The reason you should claim the computer is because the computer is the only thing that functions differently because of the software.

    And some new ink compositions just make the ink dry faster or whatever, No change in the way the cartridge functions there, even when inserted in an ink jet printer.

    Well then, you can claim that ink by itself. Adding a cartridge around the ink doesn’t change the patentability of the ink, but the claim to the ink alone is broader anyway.

    The difference was what was printed near the perforation preventing ticket stub reuse.

    Yes, but the perforations happened to be structural, and they interacted with the location of the printed matter (or probably could have been used even without the printed matter) to permit different ticket functionality. The ticket itself could be used in ways a prior art ticket could not, because of the way the perforated sections were oriented and ordered.

  64. 515

    It’s because of the functional relationship between the printed matter and the substrate.

    Funny, I seem to recall some sockpuppet who called him/herself WIDFTL going on and on about how the printed matter doctrine was irrelevant to the patentability of Beauregard claims. Everything seemed to hang on this ridiculous CCPA case called Bernhart and an even less comprehensible case called In re Lowry.

  65. 514

    That’s an interesting case broje, but I think it must be so old that the PMD was not well established as they seem to have not applied it in what is, today, a clear opportunity to apply it. I also note that 101 as applied in Bilski may have been easier to apply in that case.

    Also I note that it is difficult to tell if the claims on appeal ever issued, so what actually happened to this case is somewhat in question.

    In any event, it is pretty plain to see that the guy did eventually get some claims that today’s PMD would make mincemeat out of.

  66. 513

    Seems lucid, but not entirely logical. For example:

    Different ink makes the cartridge deliver the ink in a different way, whether it’s finer particles or with less chance of clogging or whatever your particular invention is.

    Not until it is inserted in an ink jet printer. And some new ink compositions just make the ink dry faster or whatever, No change in the way the cartridge functions there, even when inserted in an ink jet printer.

    the tickets in those old cases did actually have a functional structure.

    That functuional structure was not different from previous tickets. The difference was what was printed near the perforation preventing ticket stub reuse.

  67. 511

    How bout this one?

    Hey, the courts can’t always get it right.

    I’m going to chalk that ridiculous decision up to a very poorly written and self-contradictory rejection that the court probably couldn’t have upheld even if it wanted to.

    The court considered the rejection “unsound logically, if not self-defeating”, and noted that “the examiner was quite willing to consider such elements as proper parts of the ‘structure’ and in ‘a definite structural relationship with the wall of the measuring vessel’ when, as in the allowed claims, they were required to be in ‘a specific location,'” and didn’t understand on what logical basis the examiner could draw a distinction based on where the printed matter was printed. Neither do I.

    Also, “we note that the examiner himself recognizes the fact that printed matter, in an article of manufacture claim, can be given ‘patentable weight.’ He did so in allowing claims.” The court concludes that “[b]y implication, the examiner admits that no such combination exists in or would be obvious from an ordinary measuring vessel and we therefore deem sections 102 and 103 to be satisfied.”

    Heck, the examiner didn’t even cite prior art for an ordinary measuring cup.

    If you asked me whether those claims should patentable, my answer is clearly “no”. If you asked me whether that rejection is valid (which is the real question before the court on appeal from the Board), my answer is just as clearly “no”. Just like in Beauregard, the court found for the applicant because the PTO essentially admitted the claims were good. Doesn’t make for terribly convincing precedent.

  68. 510

    How bout this one?

    link to ftp.resource.org

    Here you have novel measuring indicia on a measuring cup. Patentable. No need to claim the husswife or the 2% milk.

    How is that so different from novel machine code instructions on a computer readable medium? It’s not as if they are printed on paper. Putting them on a computer readable medium makes them useful when later combined with a computer. There should be no need to claim the computer.

  69. 509

    An ink jet printer cartridge performs the same function as previous cartridges regardless of the composition of ink therein.

    No, it doesn’t. Different ink makes the cartridge deliver the ink in a different way, whether it’s finer particles or with less chance of clogging or whatever your particular invention is. Maybe different ink even permits a different cartridge design. Claim the ink even without the cartridge, if you like.

    But the train ticket performed the same function as always. It had to be combined with a train and a conductor for the method to be performed. Are you gonna make uas claim the train and the conductor too?

    I don’t see how that would help. Does the train do anything different after it reads the ticket? The conductor probably won’t save your claim either, unless you want to argue that the information on the conductor-readable medium transforms him from a general-purpose conductor to a completely new particular conductor.

    Anyway, the tickets in those old cases did actually have a functional structure. So yes, the tickets really did behave differently from prior art tickets, and claiming them in isolation was perfectly okay.

  70. 508

    An ink jet printer cartridge performs the same function as previous cartridges regardless of the composition of ink therein. Are you gonna make us claim the printer too?

    I remember where all this functional relationship to the substrate business came from. It was in cases where the printed substrate was a train ticket. But the train ticket performed the same function as always. It had to be combined with a train and a conductor for the method to be performed. Are you gonna make uas claim the train and the conductor too?

  71. 507

    It’s because of the functional relationship between the printed matter and the substrate.

    Except that there isn’t one, because the substrate works in exactly the same way no matter what software is on it, or even if it’s completely blank. It dumps its information into the unclaimed computer when the computer asks for it, and then the computer does something that is presumably useful. The medium is no more than a passive container, the very definition of a non-functional relationship. It’s a computer-readable mug.

    I’ll accept the functional relationship argument when you claim the instructions stored on a computer, or at least when you positively recite the part of the computer that produces the useful output. Until then, the functional relationship is between matter printed on some paper and the person reading the paper, which is not good enough.

  72. 505

    “Beauregard claims are a valid form of trickery”

    QFT

    It’s because of the functional relationship between the printed matter and the substrate.

    If the instructions were printed on paper, then it would not have utility. But by storing them in a computer readable medium, the disk or whatever is a useful component of an ultimate machine that is assembled by inserting the disk in a computer. You aren’t required to claim all of the components of the ultimate machine. It’s like a kit claim, where some of the parts are sold separately.

  73. 504

    Taking the high road is a weak move.

    So is changing the subject.

    Sorry, you were going on about how Beauregard claims are a valid form of trickery, I believe?

  74. 502

    Any comments in particular in that thread?

    Maybe the one where I said that I had put reminders in Outlook to check the thread every week for the next year. Followed by the comment at the end where I posted nearly a year later. By that time, I had figured out how long it took for a thread to close on its own, and got a comment in under the wire. In response, Dennis apparently changed a setting to make them close more quickly. D:

  75. 501

    “claim trickery”

    I never thought I’d ever hear broje start to use proper terms.

    “I think it is fair to say that there some Beauregard claims that would fail 101, such as a claim to a computer readable medium that stores instructions for carrying out the method in Benson. SCOTUS has made it quite clear that if a method is non statutory, then no claim trickery will save it. I think that applies to casting it in the form of a Beauregard claim.

    However, I don’t think that your conclusion that all Beauregard claims would fail 101 is justified. In particular, it’s only fair that if the method is statutory, then no claim trickery will render it non-statutory, including casting it in the form of a Beauregard claim.”

    Well according to some people this view, my view restated, is “wafflinglol”. Although, I’m not entirely convinced that the method being statutory should save the claim. We shouldn’t be judging the claim on the method as this is a product claim. We judged it over the abstract idea before, in accordance with Bilski, Benson and all, but we didn’t judge the method. If you get what I’m saying.

    I really just haven’t thought this kind of situation through that much as of yet. I’m certainly not immediately convinced.

    “Fair enough, except that the fundamental trickery of Beauregard claims is that the method is not claimed at all. The direct infringer of a Beauregard claim may never have executed the steps of the method. It’s not even formally a method claim.”

    Mhmmm.

    Anyway, I’m bored of the thread as well. So anyone else can have their last lolable poast and I’ll let them have the last word.

  76. 500

    Please allow me to remind you that I am broje, and also refer you to the last page of comments in this thread.

    I know you’re broje.

    Any comments in particular in that thread?

  77. 498

    /thread

    LOL atcha TINLA.

    You just don’t know my main man IANAE do ya? Plenty more carpet bombs coming your way.

  78. 497

    it’s only fair that if the method is statutory, then no claim trickery will render it non-statutory, including casting it in the form of a Beauregard claim.

    Fair enough, except that the fundamental trickery of Beauregard claims is that the method is not claimed at all. The direct infringer of a Beauregard claim may never have executed the steps of the method. It’s not even formally a method claim.

  79. 496

    I think Beauregard claims would actually fail pretty spectacularly under Benson and Bilski.

    I think it is fair to say that there some Beauregard claims that would fail 101, such as a claim to a computer readable medium that stores instructions for carrying out the method in Benson. SCOTUS has made it quite clear that if a method is non statutory, then no claim trickery will save it. I think that applies to casting it in the form of a Beauregard claim.

    However, I don’t think that your conclusion that all Beauregard claims would fail 101 is justified. In particular, it’s only fair that if the method is statutory, then no claim trickery will render it non-statutory, including casting it in the form of a Beauregard claim.

    /thread

  80. 495

    BTW — 101 isn’t particularly complicated. You seem quite unsure (i.e., you are waffling) as to whether or not 101 applies to a Beauregard claim or not. Whether you want to call it a machine or manufacture, it squarely falls within 101.

    Well, since you brought it up…

    Even a machine or a manufacture isn’t necessarily statutory if it falls within one of the three 101 exceptions. Benson claimed actual structure, if you’ll recall, and he even claimed an actual method, and he still didn’t get his patent.

    So you have a memory. The memory is statutory, obviously, because it’s a physical thing. Now, what’s your invention? It’s a set of instructions (not even a method, just a list of things you’d have to do if you hypothetically wanted to carry out the method), not limited to any particular implementation or practical application, which is abstract and non-statutory. Said abstract idea is wholly preempted by the non-limiting “limitation” of being stored on any and all suitable existing or later-invented media.

    So, on further reflection, I think Beauregard claims would actually fail pretty spectacularly under Benson and Bilski. Provided the defendant knows what he’s doing, of course.

  81. 494

    LOL waffling? Either you don’t know what that word means, or you need to read the comments again tardface. If you’re merely considering me to be playing the safe middle ground as your definition then yes, quite that, as that is the reality of the situation. If you don’t like it, you can take that up with reality tard, not me, the mere messenger.

    W

    T

    F

    “Waffling? – no it can’t be; no you don’t know what it is; no you haven’t read things right; wait, it is; wait, you have read things correctly; wait you have things right – but that is just reality, I am not to blame it’s not my fault.”

    I’ve never seen such waffling on waffling. Is this your attempt at being a lawyer? If it is, don’t quit your day job. On the other hand, given that you profess to be a patent examiner, please quit your day job.

  82. 492

    Posted by: Ned Heller | Sep 16, 2010 at 12:28 PM: If so, methinks Bilski elevated form over substance. Perhaps the approach of the minority in directly attacking business methods might of been preferred.

    Sorry Ned, you can’t attack what you can’t see. Until you and the rest of the anti patent crowd define this so called “business method” you want to do away with, you will never find a majority on any court to support.

  83. 491

    AI:
    “Ummm…because you believe that writing deliberately obtuse and less than cogent posts makes you seem intellectually superior? Or perhaps it just makes you feel that way.”

    Ah Pook: Patent folk generally enjoy the creative use of language. If you couldn’t understand my carefully crafted prose then you have little hope of understanding the average patent claim.

    AI: Maybe thats your problems. There is a BIG difference between prose and a process in the patent world.

    Ah Pook: Sorry, but I can’t see the relevance to my question of your post of Sep 18, 2010 at 03:33 PM.

    AI: So should I now say as you do , “If you couldn’t understand my carefully crafted prose then you have little hope of understanding the average patent claim.” :-)

    Ah Pook: I’ll try again.

    AI: Okay.

    Ah Pook: In several of your posts you seemed to be presenting an argument that all business methods are patent-eligible.

    AI: Umm..no.

    Ah Pook:You supported your argument by reference to various industrial/manufacturing processes that were clearly patent-eligible, then asserted that such processes were all methods of doing business.

    AI: I made no such assertion.

    Ah Pook: On this basis, it seemed to me, you then asserted that ALL business methods were patent-eligible.

    AI: You were wrong

    Ah Pook: I summarised my interpretation of your argument as follows: “All patent-eligible processes are, in some sense, methods of doing business. Therefore, all methods of doing business are patent-eligible.”

    AI: Keywords being, “My interpretation of your argument ”

    Ah Pook: I pointed out that such an argument was fatally flawed in terms of logic and invited you to correct me if I had misunderstood your argument.

    AI: Well, it is your logic.

    Ah Pook: I now repeat that invitation.

    My posts really don’t need to be reposted or rewritten as they are quite clear and simple as to be eloquent if not genius. So whether you agree or disagree just accept my post on face value and stop trying to read more into it.

    Sheesh…this is like Ned refusing to accept the clear language of the Supreme Court in Bilski regarding abstract ideas.

  84. 490

    “BTW — 101 isn’t particularly complicated. You seem quite unsure (i.e., you are waffling) as to whether or not 101 applies to a Beauregard claim or not. ”

    LOL waffling? Either you don’t know what that word means, or you need to read the comments again tardface. If you’re merely considering me to be playing the safe middle ground as your definition then yes, quite that, as that is the reality of the situation. If you don’t like it, you can take that up with reality tard, not me, the mere messenger.

    “I’m perfectly willing to go before a jury with a DVD with infringing software on it one hand and argue that this DVD is not an “abstract idea.”

    You being willing to get smacked down by a jury doesn’t impact what will happen in my office. Your being willing to take that jury smackdown you recieve to the Feds will make my life that much richer when I read the decision smacking you down. Just like the upcoming Hulu case that will no doubt get appealed will. Are you ready for some comedy? Because we should hear about the appeal in about 2 mo. and have it through the CAFC inside of 2 years.

    “”There is a good chance that they all do, but a huge majority undoubtably fail Bilski just as a DC held one did the other day.”
    Check your pants, I think there is a wet spot there … you were having another wet dream. It is exceedingly easy to overcome any Bilski test, and most issued claims already do.”

    Rofl. Riiiiight. Maybe to your softwhar examinertard. Bring it on into ma office.

    “FYI — the BPAI will be getting their smackdown soon. The pieces are already being put in motion, and it is just a matter of time.”

    ROFLx2.

    Though I haven’t brought it up until now, you’ve got balls, but they appear to be very tiny ones, probably about the size of that peanut rolling around your head. I’ve definitely got bigger ones lol.

    What’s funny is I have to hold attorneytard’s hands through all this. I guess, lets see, you’ll probably be about hmmm, maybe my 10th online, and maybe 40th irl? Come on, you guys are supposed to be teh smart.

  85. 489

    “No, that is an intended use.”

    Again, the legal acumen of a paralegal. When the number of tools is your tool box is limited you stick to what you (think you) know.

    I always find it amusing when I read office actions and see paticular legal catch phrases used in an entirely inappropriate manner. Thanks for yet another laugh.

    BTW — 101 isn’t particularly complicated. You seem quite unsure (i.e., you are waffling) as to whether or not 101 applies to a Beauregard claim or not. Whether you want to call it a machine or manufacture, it squarely falls within 101. I’m perfectly willing to go before a jury with a DVD with infringing software on it one hand and argue that this DVD is not an “abstract idea.”

    “There is a good chance that they all do, but a huge majority undoubtably fail Bilski just as a DC held one did the other day.”
    Check your pants, I think there is a wet spot there … you were having another wet dream. It is exceedingly easy to overcome any Bilski test, and most issued claims already do.

    “But the BPAI here recently put a bit of a smack down on ‘configuration’ language.”
    You mean the mostly amateurs making decisions with no precedential value? Yeah … I’m shaking in my boots … not.

    FYI — the BPAI will be getting their smackdown soon. The pieces are already being put in motion, and it is just a matter of time.

  86. 488

    “Like the reality of close to 100,000 (or more) issued U.S. patents with Beauregard claims?”

    How many patents/apps do you think KSR took out/would take out in court that would otherwise be “valid”? How about Bilski? I’d guess, conservatively, so far, 300000 and 50000 each. What do you think? Don’t think the scale of lawlyer’s idiocy/willfully ignoring the law is going to protect your patents.

    ” — basically, because you have no answer to the simple reasons why Beauregard claims are statutory, let me ask you a question.”

    Sure, but I don’t necessarily think they fail 101 as a matter of course, as I think I mentioned. There is a good chance that they all do, but a huge majority undoubtably fail Bilski just as a DC held one did the other day. The very heart of a B claim is nigh always going to be an abstract idea, but there are some few who likely do not have that problem. Still they may fail 101 in another fashion, such as failure to properly distinguish a product claim. Fact is, you’ve got aplenty of things to worry about.

    “does IPXL apply?”

    No, that is an intended use. Look for the word “to”. Bingo, you just found an intended use. In this case, it is an intended use of either a “biasing means” or “a configuration of a biasing means”, depending on whichever way you want to construe it, and maybe reading the spec. Although the difference between those two constructions likely will not ever matter.

    If you want to use configuring language to make a functional limitation there are ways. But the BPAI here recently put a bit of a smack down on “configuration” language. You can find more info about that decision in the archives of All Things Pros. Or just leave Karen a message there and she’ll remember the case I’m sure.

  87. 487

    “You need to recognize that it isn’t me you’re fighting against, it is reality.”

    Like the reality of close to 100,000 (or more) issued U.S. patents with Beauregard claims?

  88. 486

    6 – Since you and IANAE ignored my last post — basically, because you have no answer to the simple reasons why Beauregard claims are statutory, let me ask you a question.

    Going back to my mousetrap hypothetical (i.e., “A mousetrap having a snare, a biasing means and a pressure plate, wherein the biasing means is configured to move the snare upon the pressure plate being activiated), does IPXL apply? Could the phrase “move the snare upon the pressure plate being activated” be considered a ‘method step’ within the meaning of IPXL? Is my mousetrap claim directed to both the apparatus and a method of using it? Let me know what you think.

  89. 485

    “The problem in IPXL is that the “method step” at issue wasn’t performed by the apparatus and didn’t define the apparatus in any way.”

    O, you mean like the “method steps” at issue in a Beauregard claim?

    In any event, I didn’t say I was tough or any of the nonsense which you bring up in your post. Stop lashing out at me foo. You need to recognize that it isn’t me you’re fighting against, it is reality.

  90. 484

    because the courts might happily decide that legislation to prevent such claims already exists, for example in 35 USC 101, 102, 103, or 112, and the only reason this never came to light earlier is because nobody bothered to ask.

    contra

    recognition of such claims by the Courts

    W

    T

    F

  91. 483

    The high profile case that busted folks for this same thing was IPXL Holdings. It was the same kind of thing in my claim except there were many method steps in the apparatus claim.

    The “same thing”? I thought we were talking about “claims that use a laundry list of method steps to distinguish themselves.” Where’s the “laundry list of method steps” in the claim in IPXL?

    The problem in IPXL is that the “method step” at issue wasn’t performed by the apparatus and didn’t define the apparatus in any way. In fact, it wasn’t clear what that “method step” defined at all, so the claim was indefinite. But IPXL certainly does not stand for the general proposition that functional limitations can’t be used in an apparatus claim.

    You talk big, but if all you’re saying is that you succeeded in identifying an obviously indefinite claim, I’m not impressed.

    Oh, and btw, I’m hardly frustrated, these kinds of cases go my way every single time in my office.

    Oh, and btw, I was suggesting frustration that extends well beyond your job. I’m afraid that frustrated, arrested-development types have been getting off on the “power” conferred on them by virtue of their lowly civil service positions for hundreds, perhaps thousands, of years. It’s an old and boring story. But go ahead, keep telling us how tough you are and how important your job is. I suppose it’s therapeutic.

  92. 482

    btw broje, why did you make up that fairy tale about restriction practice the other day? You never did get back to the questions I asked regarding that tall tale.

    The only question you asked me was the one below, and it seems like a rhetorical question to me.

    “Don’t you think it is a bit arbitrary for the Examiner to issue a ristriction of claims when one set requires search of classes A, B, and C, and the other requires search of A, B, C, and D?

    If the Applicant then elects the claism that require search of A, B, C, and D, why is there extra burden on the Examiner to search A, B, and C for the other claims?”

    Are you sure that this is what the restriction said, or are you making up your own classifications now?

    Since you apparently wanted an answer, classifications A, B, C, and D are not actual PTO classifications. The PTO uses numbers, not letters.

  93. 481

    I never fell for the copyright CRXP even though it was drilled into me.Even over the phone You see I know even though the second DIVISIONAL is written by a six year old, the first 2 claims are not beauregard claims. And as I have read many times, a Design patent has one claim. So even if a six year old drafted the Application It has TWO Strong Claims which make it a Utility.
    Oh and by the way. I must just have a lawyers Mouth. I was to busy yacking to listen to my own self. And then I read and reread what you all say. And like a puzzle some things are the round hole square peg syndrome. And those are the ones that go round and round in my Computer pea brain. And just like the guy that swallowed a pea and it rooted in his lung, mine seems to have gone straight to my computer pea brain. now giving me double pea brain computer memory.

  94. 480

    “Your mug claim is not analogous in that respect because a Beauregard claim won’t hold water.”

    Lol wut? You mean the CRM wouldn’t hold water? Or the claim itself? You’re right, the CRM doesn’t hold water, but it does make a nice coaster. And you’re also right that the claim itself wouldn’t hold water, in the same fashion that standard B claims do not.

    “Automatic injunctions were more or less settled expectations too, but it turned out there had always been a law to prevent those.”

    Crazy wasn’t it?

    “I’m wondering to what extent the failure of Congress to pass legislation to prevent such claims, in the face of recognition of such claims by the Courts, has a starre decisis effect. I mean, is that precedential effect really lessened because the PTO made an admission that such claims are 101 eligible? If so, to what extent?”

    to the ~lol extent

    btw broje, why did you make up that fairy tale about restriction practice the other day? You never did get back to the questions I asked regarding that tall tale.

  95. 479

    6: My mug on my desk has functionality as a data storage and delivery system too.

    Your mug claim is not analogous in that respect because a Beauregard claim won’t hold water.

    TINLA: I’m wondering to what extent the failure of Congress to pass legislation to prevent such claims, in the face of recognition of such claims by the Courts, has a starre decisis effect.

    I would say zero effect, because the courts might happily decide that legislation to prevent such claims already exists, for example in 35 USC 101, 102, 103, or 112, and the only reason this never came to light earlier is because nobody bothered to ask.

    Automatic injunctions were more or less settled expectations too, but it turned out there had always been a law to prevent those.

  96. 478

    “Face it bud, you’re getting an exception from the PTO, not from the law. ”

    I’m wondering to what extent the failure of Congress to pass legislation to prevent such claims, in the face of recognition of such claims by the Courts, has a starre decisis effect. I mean, is that precedential effect really lessened because the PTO made an admission that such claims are 101 eligible? If so, to what extent?

  97. 477

    “The mug has functionality as a liquid storage and delivery system. The poem does not change or enhance that functionality in any way.

    The disk has functionality as a data storage and delivery system. The software does change and enhance that functionality so that it becomes useful in a particular way.

    My mug on my desk has functionality as a data storage and delivery system too. It says right on the front: Patent and Trademark Office. I can turn that data into any functionality I want to with a properly reading computer.

  98. 476

    “Right. And what law would that be, please?”

    The 4 big ones you get rejected over every day.

    “Since you can’t provide either law or facts to support your ramblings, you’ll have to excuse me if I assume that you actually are the frustrated adolescent that you sound like.”

    You can assume to your wittle heart’s content but it isn’t going to change what they did. The high profile case that busted folks for this same thing was IPXL Holdings. It was the same kind of thing in my claim except there were many method steps in the apparatus claim.

    Oh, and btw, I’m hardly frustrated, these kinds of cases go my way every single time in my office. The only thing that is midly annoying is having to deal with them in the first place. Scams always annoy me.

  99. 475

    … they certainly don’t use a laundry list of method steps as “functional language”. Like I said, if they did, they’d get hit with so many 102’s etc. their head would spin. Face it bud, you’re getting an exception from the PTO, not from the law.

    Right. And what law would that be, please?

    I’ve had some experience with apparatus (may as well have been a “product”) claims that use a laundry list of method steps to distinguish themselves. 101 and 112 cleared that problem up right fast. They abandoned the apparatus and went with a method DIV.

    Serial number, please.

    Since you can’t provide either law or facts to support your ramblings, you’ll have to excuse me if I assume that you actually are the frustrated adolescent that you sound like.

  100. 474

    Oh, and I forgot to mention, I’ve had some experience with apparatus (may as well have been a “product”) claims that use a laundry list of method steps to distinguish themselves. 101 and 112 cleared that problem up right fast. They abandoned the apparatus and went with a method DIV.

  101. 473

    “Even IANAE admits that a Beauregard claims is directed to statutory subject matter – he just doesn’t believe all the claim limitations count.”

    I don’t think he’s admitted that quite yet. He’s admitted that they may be, just as I do.

    “Once you’ve gotten past the 101 issue ”

    If … not once.

    “We now get to the “configured to” language of my hypothetical. Although a properly-written Beauregard claim uses different language, they are both functional language, which can be used to distinguish one structure from another. ”

    You say that, but it isn’t really functional language of what the CRM does, it’s “instruction” language.

    “there are no claims that I’m aware of that use the ‘concepts’ that Beauregards do to distinguish themselves from the prior art.” Functional language is used ALL THE F’ING time to distinguish claims from the prior art”

    Like I said, they don’t really use “instruction language” and they certainly don’t use a laundry list of method steps as “functional language”.

    Like I said, if they did, they’d get hit with so many 102’s etc. their head would spin.

    Face it bud, you’re getting an exception from the PTO, not from the law.

  102. 470

    The disk has functionality as a data storage and delivery system. The software does change and enhance that functionality so that it becomes useful in a particular way.

    No, the disk stores and delivers data in exactly the same way no matter what the data is. Just like the mug holds coffee, tea, water, or juice in the exact same way.

    Only the computer behaves differently after it reads the data, and the computer is not claimed.

  103. 469

    what’s the functional relationship with the disk?

    The mug has functionality as a liquid storage and delivery system. The poem does not change or enhance that functionality in any way.

    The disk has functionality as a data storage and delivery system. The software does change and enhance that functionality so that it becomes useful in a particular way.

  104. 468

    But that’s like saying a nail has no utility unless combined with a pair of boards and a hammer.

    Which probably would be the case if you found yourself incapable of claiming the nail in structural terms, and similarly incapable of claiming a method of using the nail without reference to the hammer and wood you’re deliberately not claiming.

    The encoded disk does have utility by virtue of it being encoded with the instructions.

    It seems like you are saying that the printed mug has no utility unless combined with a person who can read.

    So tell me, this software that is claimed based entirely on its functional relationship with a device other than the disk, what functional relationship does it have with the disk again?

    The disk is what the program is printed on, nothing more. A way of carrying it to the computer. If you change the disk, even if you download the program from the internet with no disk at all, the program does exactly the same thing. The disk isn’t even needed to use the program. So what’s the functional relationship with the disk?

  105. 467

    Beauregard claims pass the 101 test, in the same way a poem printed on a mug passes the 101 test. It’s on a mug, and a mug is a thing. Even proponents of Beauregard claims will tell you the same, and that’s the reason the format exists in the first place. The problem is that the printed matter doesn’t relate functionally to the substrate, so it’s really a statutory but anticipated/obvious claim to “a memory”.

    But there is a functional relationship between the software instructions and the computer readable medium (e.g., disk).

    It seems like you are saying that the encoded disk has no utility unless combined with a computer and the requisite operating system. But that’s like saying a nail has no utility unless combined with a pair of boards and a hammer.

    The encoded disk does have utility by virtue of it being encoded with the instructions. That’s different from a poem imprinted mug, because the poem has no relationship to the utility of the mug.

    I think that example illustrates how there is a functional relationship between the software and the disk, when there is no functional relationship between the poem and the mug.

  106. 466

    Another suburban morning
    Grandmother screaming at the wall

    We have to shout above the din of our Rice Crispies
    We can’t hear anything at all

  107. 465

    A mousetrap having a snare, a biasing means and a pressure plate, wherein the biasing means is configured to move the snare upon the pressure plate being activiated is still patentable, and the “configured to move the snare …” is still a viable limitation despite being written in functional terms. One does not need to activate the mousetrap to be an infringer.

    Really? You can’t tell the difference between that and a Beauregard claim?

    You claim a mousetrap. You assert your patent against a mousetrap. It’s plain from how all the structural parts of the mousetrap interact that the biasing means biases one part in one direction. Sure, the “configured to” language is unfortunate, and I avoid using it wherever possible, but at least you can look at the relationship between the components of the mousetrap and compare it to your claim.

    A Beauregard claim doesn’t claim the mousetrap, the snare, or the pressure plate. It doesn’t even claim an isolated biasing means that would do something inventive if the person who bought it from you could put it in the unclaimed mousetrap in an unclaimed way such that it would bias a pressure plate of undisclosed design in a particular way. It claims the instruction manual for that biasing means.

  108. 464

    “That is, you could just as well tell a computer to perform things upon receipt of a mug with a certain poem on it.”
    You guys love to keep hitting that crack-pipe. 99.999+% of poems are not computer instructions. If there is a poem that qualifies as computer instructions, and if the poem on a mug could be considered by one skilled in the art as a computer readable medium having embodied therein computer readable instructions, then it would qualify as patentable subject matter under 101.

    The long and the short of it is that anybody trying to reject a properly written Beauregard claim is going to have to use 102/103. Even IANAE admits that a Beauregard claims is directed to statutory subject matter – he just doesn’t believe all the claim limitations count.

    Once you’ve gotten past the 101 issue – which is incredibly easy to do, the 102/103 issues are also easy to deal with. One having ordinary skill in the art (a quality not frequently found in this thread) recognizes a computer readable medium has a different structure depending upon the computer readable instructions embedded therein.

    We now get to the “configured to” language of my hypothetical. Although a properly-written Beauregard claim uses different language, they are both functional language, which can be used to distinguish one structure from another. Thus, so long as the structure is different, the Beauregard claim passes muster under 102/103.

    “There is no “configured to blah blah” in any beauregard claims I’ve read.” This is because you have the legal reasoning capability of a paralegal – better than most, but you just don’t understand most nuances of the law like the average attorney would. To paraphrase a recent Defense Secretary, “you don’t know what you don’t know.”

    “there are no claims that I’m aware of that use the ‘concepts’ that Beauregards do to distinguish themselves from the prior art.” Functional language is used ALL THE F’ING time to distinguish claims from the prior art.

    If IANAE or 6 think that all Beuregard claims should be rejected, then set up a meeting with the Directors of the 2100, 2400, or 3600 groups. Nearly every newly-examined Beuaregard claim I see gets rejected under 101, so there definintely is a motivation, within the USPTO, to reject these claims. I’m sure they would love to see your support cases and accompanying legal arguments. If you have that much conviction in your arguments, take it to the people that have the power to act.

  109. 463

    AI:
    “Ummm…because you believe that writing deliberately obtuse and less than cogent posts makes you seem intellectually superior? Or perhaps it just makes you feel that way.”

    Patent folk generally enjoy the creative use of language. If you couldn’t understand my carefully crafted prose then you have little hope of understanding the average patent claim.

    Sorry, but I can’t see the relevance to my question of your post of Sep 18, 2010 at 03:33 PM.

    I’ll try again.

    In several of your posts you seemed to be presenting an argument that all business methods are patent-eligible. You supported your argument by reference to various industrial/manufacturing processes that were clearly patent-eligible, then asserted that such processes were all methods of doing business. On this basis, it seemed to me, you then asserted that ALL business methods were patent-eligible.

    I summarised my interpretation of your argument as follows: “All patent-eligible processes are, in some sense, methods of doing business. Therefore, all methods of doing business are patent-eligible.”

    I pointed out that such an argument was fatally flawed in terms of logic and invited you to correct me if I had misunderstood your argument. I now repeat that invitation.

    As I have said before, my interest does not derive from any pro- or anti- stance to anything, I am merely curious. You may have noticed that I have actually been on the same side as you in a number of aspects of this on-going debate.

    I remain respectfully yours

  110. 462

    Seemingly off-topic, but never-the-less very much on-topic for this thread (and most assuredly for its most prolific poster), this excerpt from the Patent Hawk’s post at link to patenthawk.com fits in at several levels:

    Fujitsu’s lawyers ridiculously argued that “‘synchronously’ does not mean ‘at the same time.'” But lawyers argue anything. Credibility is an abstraction.

  111. 461

    AI:
    “I am not trying to be flip but reading that made me dizzy and my head hurt a little. Seriously.”

    Why am I not surprised? ;)

    _____

    Ummm…because you believe that writing deliberately obtuse and less than cogent posts makes you seem intellectually superior? Or perhaps it just makes you feel that way.

    Nonetheless if you really want to understand what I meant I suggest you read my post at Sep 18, 2010 at 03:33 PM.

    But seriously, it’s really not THAT complicated, and I would be most grateful for a response.
    Posted by: Ah Pook | Sep 20, 2010 at 06:34 AM

  112. 460

    Shaking my head: “And why would it make any difference for patent purposes whether the steps of a method are carried out by a person or by a computer?”

    AI: “I have asked that questions many times and they NEVER answer it. NEVER.”

    Shaking my head: “You must have been out to lunch during that whole “In Re Bilski” business ”

    AI: In their world it’s as if The Supremes never ruled on Bilski. I think that they believe if they don’t acknowledge the findings in Bilski, maybe the ruling will just disappear.

  113. 459

    “capable of converting a generic machine into a machine capable of carrying out the method.”

    Technically speaking neither is your CD unless the computer is told specifically to understand what you want it to do from that CD. That is, you could just as well tell a computer to perform things upon receipt of a mug with a certain poem on it.

  114. 458

    “Additionally, you didn’t instruct the computer to do most of those things, it just did it.”

    Actually he did if he told the installer to execute. Or, alternatively, if you like, the dood at the factory told his computer to do it before he bought it whenever IANAE tells the computer to execute the installer.

    “”configured to move the snare ”

    There is no “configured to blah blah” in any beauregard claims I’ve read. Perhaps you can show me one.

    Even if it were used in a Beauregard, your example shows off the flaws of your position. The “configured to…” intended use limitation you’d like to insert is a prime example of why if you used it in a Beauregard I’d 102 you over brittany spear’s first album. The configuration on her cd is perfectly capable of carrying out whatever intended use you’d specify in your Beauregard, you simply need to tell a computer to respond thus upon reciept of that configuration.

    And that situation brings up the real problem. In an traditional non-“configured to” Beauregard you’re distinguishing the structure of the CRM in terms of what another object is doing rather than what it itself does.

    I’ve been around the block a time or three on this issue tard, and there are no claims that I’m aware of that use the “concepts” that Beauregards do to distinguish themselves from the prior art. In fact, what is quite telling is that if you ever attempted in a normal manufacturing application you’d get smacked upside your head with so many valid 102’s it’d make your head spin. Probably with a 101 and 112 to boot.

  115. 456

    “When I download Firefox, my computer doesn’t automatically start accessing web pages either.”

    Your computer did a LOT of things when you downloaded Firefox and executed the installer. Additionally, you didn’t instruct the computer to do most of those things, it just did it.

    A mousetrap having a snare, a biasing means and a pressure plate, wherein the biasing means is configured to move the snare upon the pressure plate being activiated is still patentable, and the “configured to move the snare …” is still a viable limitation despite being written in functional terms. One does not need to activate the mousetrap to be an infringer.

    Similarly, with a properly written Beauregard, one does not actually need to be executing the software to be an infringer.

    “And why would it make any difference for patent purposes whether the steps of a method are carried out by a person or by a computer?”
    You must have been out to lunch during that whole “In Re Bilski” business — let me give you a hint, the Courts consider it a “clue.”

    “The problem is that the printed matter doesn’t relate functionally to the substrate”
    Printed matter? Substrate?? Are you still holding on to that long-debunked theory?

    A problem with these neophytes is that they complain about certain language but fail to recognize that the concepts that make Beauregard claims acceptable are used in other types of claims. Once you’ve practiced with different types of technology and gained a little experience, then come back to us.

    Until then, you are just offending us with your ignorance.

  116. 455

    The only problem with them is that the infringer is poor, which I don’t really consider to be a patent law issue.

    This does not square with your stated position on matters of equity and law. Your expressed views are not reconcilable.

    But then again, you have made it clear that you are only interested in the (portions of) law that advance your philosphy.

    Even proponents of Beauregard claims will tell you the same, and that’s the reason the format exists in the first place. The problem is that the printed matter doesn’t relate functionally to the substrate

    You have assumed your answer, and a position that those advancing the Beauregard claim style do not hold. In fact, the critical error is in your overly strict view of “relating functionally”. Reread the magic hatband case.

  117. 454

    the mug is a not a functional component essentially embodying a (novel) method,

    That depends on what you write on the mug (you could write software on the mug), but just like for software it’s not actually a method until the (unclaimed) computer does something with it.

    capable of converting a generic machine into a machine capable of carrying out the method.

    There’s a big difference between “capable of converting a machine” and “converting a machine”. The language “capable of” is intended use, particularly when you deliberately don’t claim the actual machine, and the code isn’t functionally related to the structure you do claim, so you’re right back to claiming “a memory”.

  118. 453

    IANAE “Beauregard claims pass the 101 test, in the same way a poem printed on a mug passes the 101 test. It’s on a mug, and a mug is a thing.”

    Your argument makes more sense now, but I have to disagree about the mug – the mug is a not a functional component essentially embodying a (novel) method, capable of converting a generic machine into a machine capable of carrying out the method.

  119. 452

    The point of my rhetorical question, if you didn’t catch it the first time, is that you can just as well draft up an apparatus claim that could (unreasonably) be interpreted to cover a human.

    And my point is that you couldn’t, because you could never assert a claim against any conceivable infringer based on that interpretation.

    It’s not that humans can’t infringe claims. Anybody containing a patented stent or hip replacement infringes those claims. And good luck getting an injunction.

    The claim might be anticipated, but it passes the 101 test.

    Beauregard claims pass the 101 test, in the same way a poem printed on a mug passes the 101 test. It’s on a mug, and a mug is a thing. Even proponents of Beauregard claims will tell you the same, and that’s the reason the format exists in the first place. The problem is that the printed matter doesn’t relate functionally to the substrate, so it’s really a statutory but anticipated/obvious claim to “a memory”.

    Computer-implemented method claims pass the 101 test too, provided the underlying method passes. The only problem with them is that the infringer is poor, which I don’t really consider to be a patent law issue.

  120. 451

    IANAE “I thought so too, but then you started talking about infringement. You can’t infringe a claim in any meaningful way unless it’s valid.”

    Don’t play dumb. The point of my rhetorical question, if you didn’t catch it the first time, is that you can just as well draft up an apparatus claim that could (unreasonably) be interpreted to cover a human. The claim might be anticipated, but it passes the 101 test. So, your subject matter objection to software patents on the basis that such claims are akin to human-readable recipe books seem misguided to me. Reasonableness is always required in order to ascertain the metes and bounds of any claim. Seems you’re being willfully unreasonable in your interpretation in order to support your point.

  121. 450

    But I thought we were talking subject matter objection to software here?

    I thought so too, but then you started talking about infringement. You can’t infringe a claim in any meaningful way unless it’s valid.

  122. 449

    IANAE “None, because you (or more likely, your parents) would also anticipate them.”

    But I thought we were talking subject matter objection to software here? Anticipation/obviousness are another issue altogether.

  123. 447

    How many apparatus claims do I infringe, what with my myriad body parts capable of performing so many functions.

    None, because you (or more likely, your parents) would also anticipate them.

  124. 446

    IANAE “They were human-readable instructions.”

    What have you been smoking? Human is a computer, is that a reasonable interpretation now. How many apparatus claims do I infringe, what with my myriad body parts capable of performing so many functions.

  125. 445

    “99 people out of 100 understand the difference between a recipie and software — it is sad that you don’t.

    99 people out of 100 understand that the difference between a recipe and software is the same difference as between a CRM, with instructions thereupon telling a computer to carry out a method, and software — it is sad that you don’t.

  126. 444

    After you downloaded your cookbook, did your computer start making any of these recipes? Did it turn on the oven, obtain the ingredients, mix the ingredients. Did your computer function any different besides being able to display the recipes?

    Of course not. They were human-readable instructions. When I download Firefox, my computer doesn’t automatically start accessing web pages either.

    And why would it make any difference for patent purposes whether the steps of a method are carried out by a person or by a computer?

  127. 443

    “The other day I purchased and downloaded a cookbook. That cookbook I downloaded represents a product, purpose-designed for a specific functional purpose. Full of instructions that, for all I know, tell me how to carry out patentable or patented processes.”

    After you downloaded your cookbook, did your computer start making any of these recipes? Did it turn on the oven, obtain the ingredients, mix the ingredients. Did your computer function any different besides being able to display the recipes?

    99 people out of 100 understand the difference between a recipie and software — it is sad that you don’t.

  128. 442

    Yes, that is the only reasonable course of action if I can’t see the distinction.

    That was the only reasonable course of action a long time ago.

  129. 441

    Because the term “interest” has more than one meaning, and not all of them get you into court, and even fewer of them justify the expense of actually litigating to the bitter end.

    Interest” was your choice of word, but no matter which meaning you want to choose, I just don’t see the impetus behind your fuss.

    Your position boils down to a lot of passionate hot air.

  130. 440

    Analogies 101

    textbook:encoded_disk as recipe:pie

    software:encoded_disk as ingredients:pie

    computer:encoded_disk as clown:pie

  131. 439

    IANAE: But if you can’t see the distinction, we have an entirely different issue here.

    If you insist on having the last word, you’ll be on this board a very long time. Your time would be better spent reading up on the inner workings of how a computer executes software code and particularly the effect the software code has on the computer. Best of luck.

  132. 438

    If you can’t see the distinction between software and a recipe book, we’ll have to leave it at agreeing to disagree.

    Yes, that is the only reasonable course of action if I can’t see the distinction.

    But if you can’t see the distinction, we have an entirely different issue here.

  133. 437

    IANAE: What’s the big technical distinction that makes the analogy not apply?

    If you can’t see the distinction between software and a recipe book, we’ll have to leave it at agreeing to disagree. May I suggest though reading up on the technology a bit.

  134. 436

    As I said, the analogy does not apply.

    You do keep saying that.

    What’s the big technical distinction that makes the analogy not apply?

    Willfully blind, or ignorant?

    Or genuinely unpersuaded?

  135. 435

    IANAE: That cookbook I downloaded represents a product, purpose-designed for a specific functional purpose. Full of instructions that, for all I know, tell me how to carry out patentable or patented processes.

    As I said, the analogy does not apply. Willfully blind, or ignorant?

  136. 434

    Then why does this thread have over 400 comments, most be those that have an interest in invalidating them?

    Because the term “interest” has more than one meaning, and not all of them get you into court, and even fewer of them justify the expense of actually litigating to the bitter end.

  137. 433

    The other day I purchased and downloaded an upgrade to my Norton 360 application. Those data bits which I downloaded represent a product, purpose-designed for a specific functional purpose.

    The other day I purchased and downloaded a cookbook. That cookbook I downloaded represents a product, purpose-designed for a specific functional purpose. Full of instructions that, for all I know, tell me how to carry out patentable or patented processes.

    Other than the “downloaded” part, that’s exactly the sort of thing the original drafters of our statutes could have seen coming. Adding a computer doesn’t make it any more patentable than putting a clock in it.

    So what’s the big difference? That I don’t automatically start cooking the recipes when I open the book? Surely that modification is obvious at best and non-statutory at worst when recited in an apparatus claim.

  138. 432

    because nobody has an interest in invalidating them.

    Then why does this thread have over 400 comments, most be those that have an interest in invalidating them?

    Your position just does not have credibility. I don’t see the validity of your position, and your arguments are not persuasive.

  139. 431

    IANAE: Suppose you had a patent on a new method of swinging on a swing. Is the swingset manufacturer the “real culprit” and the “free-rider”?

    Suppose you had a patent on a method of making bread products. Is the cookbook publisher the “real culprit”?

    Or is the real “free-rider” the person actually carrying out the method you invented, and actually getting the benefit of your fancy software without paying a higher purchase price to reflect your royalties?

    I completely understand the desire to make more money from one’s patent, but isn’t this kind of a ridiculous way of doing it, when you could have had both unquestionably valid method claims and a perfectly serviceable cause of action against the “real culprit” (defined, of course, as the “person with all that money”)?

    None of those analogies apply IANAE. So, either you don’t understand software, or you’re being willfully blind. The other day I purchased and downloaded an upgrade to my Norton 360 application. Those data bits which I downloaded represent a product, purpose-designed for a specific functional purpose. This is a new sort of product that the original drafters of our statutes likely never envisioned. But, products that are purpose-designed for a specific functional purpose should be capable of garnering patent protection if the functional purpose (method) is itself patentable – this should be true whether the product is an apparatus, or executable logic.

  140. 430

    Are you saying that no one has been sued or threatened to be sued on a patent containing a Beauregard claim?

    No, I’m saying that the plaintiffs who do threaten to sue on them seem curiously willing to settle. Every other common claim format seems to make it to a judge at least once in a while.

    Somehow I doubt that all Beauregard claims coincidentally cover such clearly valid and infringed subject matter that no defendant has ever decided to take a stand. The only thing all those claims have in common is the flimsy preambles that define the entirety of the claimed “structure”.

    Or perhaps it’s that the defendants are also software companies with patents, and it’s not in their interest to challenge the validity of the format. But that doesn’t make them any more valid than the PTO granting them in the first place, it simply means nobody has stepped forward to challenge them because nobody has an interest in invalidating them.

    Are you saying that “it’s not their problem” is any different than saying “we think the claim format is legitimate”?

    I think what they did in Beauregard is the former, and as a result they’re kind of stuck with the latter until the court tells them different.

  141. 429

    Are you saying that no one has been sued or threatened to be sued on a patent containing a Beauregard claim?

    Are you saying that “it’s not their problem” is any different than saying “we think the claim format is legitimate”?

    It is difficult to understand why you hold your position.

  142. 428

    Wouldn’t it be the opponent who would be attacking this, if as you indicate it has such a rickity legal footing?

    You can’t attack a claim until someone sues you for infringing it. And it’s worthless to send it back to the PTO, because the PTO has decided it’s not their problem.

  143. 427

    reason no patentee has taken a Beauregard claim to a validity judgment on the merits despite

    Wouldn’t it be the opponent who would be attacking this, if as you indicate it has such a rickity legal footing?

    I think your argument works against you.

  144. 426

    You act like we don’t, or shouldn’t,

    No, you certainly should take whatever claims the PTO will give you. I just think there are some the PTO shouldn’t be giving you, and I also think there’s a reason no patentee has taken a Beauregard claim to a validity judgment on the merits despite how old and commonplace and valuable they supposedly are.

  145. 425

    completely understand the desire to make more money from one’s patent, but isn’t this kind of a ridiculous way of doing it, when you could have had both unquestionably valid method claims and a perfectly serviceable cause of action against the “real culprit” (defined, of course, as the “person with all that money”)?

    You act like we don’t, or shouldn’t, have separate claim sets to: (a) the computerized process; and (b) the computer readable medium encoded with machine code instructions enabling a computer to carry out the process. Of course we file both.

  146. 424

    What is claimed is:

    1. A process of preparing 4-(Fluorophenyl)-6-isopropyl-2-(N-methyl-N-methylsulfonylamino)-5-formyl-pyrimidine (FPP—CHO) comprising the step of reacting 4-(Fluorophenyl)-6-isopropyl-2-(N-methyl-N-methylsulfonylamino)-5-hydroxymethyl-pyrimidine (FPP—OH) with 2,2,6,6-tetramethylpiperidine-1-oxyl (Tempo) in the presence of a co-oxidant.

    Big difference between that and:

    1A. A readable medium containing instructions which, when followed, cause a machine to react 4-(Fluorophenyl)-6-isopropyl-2-(N-methyl-N-methylsulfonylamino)-5-hydroxymethyl-pyrimidine (FPP—OH) with 2,2,6,6-tetramethylpiperidine-1-oxyl (Tempo) in the presence of a co-oxidant.

    I’m surprised the patent attorney who drafted that case didn’t throw in a simple Beauregard claim. Guess the good people at Kenyon & Kenyon aren’t as competent as they would have us believe.

  147. 423

    Hawkeyeaz1

    Re:
    “They are not patenting the recipe for the drug, they are patenting the drug which is the finished product, the result of following the recipe. Drug manufacturers are required by law to print the ingredients of the drug on the packaging, and they are required to order them by the quantity. They just do not have to say how much or how to cook them. But if a chemist publishes the recipe, the drug manufacturer would have a hard time in court convincing the judge merely publishing a recipe was infringement, unless same individual manufactured and sold the drug.”

    Clearly, you know not of what your speak:

    What is claimed is:

    1. A process of preparing 4-(Fluorophenyl)-6-isopropyl-2-(N-methyl-N-methylsulfonylamino)-5-formyl-pyrimidine (FPP—CHO) comprising the step of reacting 4-(Fluorophenyl)-6-isopropyl-2-(N-methyl-N-methylsulfonylamino)-5-hydroxymethyl-pyrimidine (FPP—OH) with 2,2,6,6-tetramethylpiperidine-1-oxyl (Tempo) in the presence of a co-oxidant.

    2. The process of claim 1 comprising the steps of:

    (a) mixing FPP—OH and Tempo and a co-oxidant in an organic solvent to form a reaction mixture;

    (b) combining the reaction mixture with NaClO;

    (c) maintaining the reaction mixture for a time sufficient to obtain FPP—CHO; and

    (d) recovering FPP—CHO.

    3. The process of claim 2, wherein the organic solvent is selected from the group consisting of: di-polar aprotic solvents, C3 to C7 esters, C2 to C8 ethers, C5 to C7 aromatic hydrocarbons, C1 to C5 chlorinated aliphatic hydrocarbons and mixtures thereof.

    4. The process of claim 2, wherein the organic solvent is selected from the group consisting of: acetonitrile, ethyl acetate, Methyl tert-Butyl ether (MTBE), toluene, and methylene chloride.

    5. The process of claim 2, wherein the organic solvent is acetonitrile or ethyl acetate.

    6. The process of claim 2, wherein the amount of solvent is about 5 ml/g to about 10 ml/g per ml/g of FPP—OH.

    7. The process of claim 2, wherein the molar ratio of Tempo to FPP—OH is about 0.1 to about 0.2.

    8. The process of claim 2, wherein the reaction mixture is maintained in step (c) for a period of about 30 minutes to about 6 hours.

    9. The process of claim 2, wherein the reaction mixture is maintained in step (c) for about 2 hours.

    10. The process of claim 2, wherein the reaction mixture is maintained at a temperature of about 5° C. to about 40° C.

    11. The process of claim 2, wherein the reaction mixture is maintained at a temperature of about 5° C. to about 25° C.

    12. The process of claim 2, wherein at least about 95% of FPP—OH by weight is converted to FPP—CHO.

    13. The process of claim 2, wherein the NaClO has a pH of about 8 to about 9.

    14. The process of claim 2, wherein the NaClO has a pH of about 8.6 to about 8.8.

    15. The process of claim 13, wherein the pH of NaClO is adjusted using a base selected from the group consisting of: an organic amine, an alkoxide, an alkali metal hydroxide, an alkaline earth metal hydroxide, an alkali metal hydride, an alkaline earth metal hydride, an alkali earth metal carbonate, an alkaline earth metal carbonate, and a hydrogen carbonate salt.

    link to google.com

  148. 420

    I didn’t realize Lady Justice put people’s wallets in that little balance of hers.

    That smacks of communism, which I presume is one of your ideals to which you are trying to conform the law.

    IANAE,

    You would make a much more cogent defense of your position if you would stick to the point rather than explore such diversions as above. Presuming communism? Seriously? Lady Justice and wallets – that’s one of your precious equity considerations, is it not?

    Your fifteen minutes have long expired.

  149. 419

    Someone who creates an infringing product is not a law breaker?

    Yes, but we’re not talking about someone who creates an infringing product. We’re talking about someone who creates a perfectly legal product that someone else uses to infringe a patent. You know, in the same way that the gun company sells perfectly legal products that some of its customers use in illegal ways, if you followed that analogy earlier.

    Software is a product.

    No, software is a set of instructions to perform a method. You can write it down on a product and people can buy the product with the software written on it, but that’s about it.

    As a competent patent attorney, you want to draft claims that go after the people manufacturing the product and not necessarily the people using the product for obvious reasons.

    Obvious business reasons. But as a competent attorney you have to recognize that Beauregard claims stand on exactly zero legal footing, and you really should be including some valid claims in the patents you draft.

    This is a cut and dry issue – which is why software embodied within a computer readable medium has been patentable for long enough that some of these patents are just beginning to expire.

    Really, that long? Funny, then, that nobody has yet thought their highly valid Beauregard claims in this highly lucrative software field were strong enough to be worth testing in court.

    That looks like a recipe to me given the common definition of a recipe.

    No, that’s a process and a product-by-process. The spec is the recipe, but the claim is infringed by actually doing the process. Writing down the recipe (e.g. by printing the issued patent) is no infringement, but it would infringe if the claim were to the recipe.

    Software provides all the functionality necessary for a computer to perform that function.

    Software provides no functionality. The general-purpose computer already has all the functionality it needs. The software simply tells the computer to perform a series of tasks it was already inherently capable of doing, in a particular order and in a particular way. That’s exactly the same thing as a recipe to a person who already has all the ingredients and knows how to bake.

    This is what happens when people have a notion as to what is right and wrong and then, in hindsight, try to find something to support that notion – they end up making very silly arguments.

    Yes, silly arguments like “writing down instructions for a computer is very different from writing down instructions for a person”.

  150. 418

    “Again I point to the analogy of a recipe, as id correlates very directly and very accurately for software. Recipes are not patentable, even if someone has managed to get a recipe patent slipped past the USPTO.”

    First, you need to define what is a “recipe patent.” One definition of recipe is “a set of instructions for making something from various ingredients,” and a definition of ingredient is “something that enters into a compound or is a component part of any combination or mixture.”

    That is what you find in a multiple of patent applications – when I say a multiple I mean tens of thousands.

    For example the claims U.S. Patent No. 4,467,016 are
    1. The process of protecting against hot sulfidation a low alloy steel tube that is to be welded in place, which process is characterized by the steps of subjecting the tube to a heavy diffusion chromizing, followed by a diffusion aluminizing in which the aluminizing is arranged to leave the welding sites with a surface aluminum content less than about 10% without masking.

    2. The combination of claim 1 in which the chromizing is sufficiently heavy to leave the aluminized surface with a chromium content of at least about 25%.

    3. The combination of claim 1 in which the surface aluminum content is less than 5%.

    4. The combination of claim 1 in which the low alloy steel is a chromium steel.

    5. The combination of claim 4 in which the chromium steel has its surface decarburized before it is subjected to the diffusion chromizing.

    6. The product produced by the process of claim 1.

    That looks like a recipe to me given the common definition of a recipe. Of course, the remainder of the “recipe” is found in the specification, which enables the invention. Regardless, anybody barking up the recipe tree has only worked on a narrow scope of patents because patents like the one.

    If you mean a “recipe” in terms of the piece of paper it is written upon, then it does not correlate very directly to software. Software provides all the functionality necessary for a computer to perform that function. Although a “cake recipe” can be read by a “robotic chef” to bake a cake, the “cake recipe” does not provide everything the robotic chef needs to bake the cake. The recipe does not provide the flour, the sugar, the eggs, the baking pan, the oven, etc. – which are all needed to perform the recipe. As such, there is a substantial difference between a recipe on a piece of paper and software.

    This is what happens when people have a notion as to what is right and wrong and then, in hindsight, try to find something to support that notion – they end up making very silly arguments.

  151. 417

    “Why do you target the rich, rather than the actual law-breakers? Why don’t you want the rich to have an incentive to excel?”

    Someone who creates an infringing product is not a law breaker?

    This is where your twisted logic has gotten you. Software is a product. You can go down to your local mall and probably buy it from several stores. That is reality — not an abstraction.

    As a competent patent attorney, you want to draft claims that go after the people manufacturing the product and not necessarily the people using the product for obvious reasons. You’ll never find all of the people using the product, and you’ll never be able to collect on a judgment from all of them.

    Getting back to the product, whether it is a USB drive, memory, DVD, CD, etc., it is a physical product that contains the software. Moreover, one skilled in the art would recognize that there is some structural difference from, e.g., one USB drive to another USB drive depending upon what software is contained therein. This is a cut and dry issue – which is why software embodied within a computer readable medium has been patentable for long enough that some of these patents are just beginning to expire.

  152. 415

    Hawkeyeaz1: Actual Inventor: Gears are not in and of themselves patentable, as their is nothing new, remarkable, etc about a gear, and there is immense prior art.

    AI: True, but a gear in and of itself does pass 101 even it it fails 102 and 103. Therefore if software is a gear as you claim then software is patentable according to your own logic. Now if you chose to backtrack on that and claim software is something else I am willing to take a look at that.

    Hawkeyeaz1: However, the idea is flawed as software is the steps, the process, the description of the workings of a machine, but NOT the actual workings of the machine.

    Al: But you are aware that certain types of steps for a process are patentable according to the statute and the constitution right? Therefore if software is the steps and process as you claim, then once again according to your own example software is patentable

    Hawkeyeaz1: The CPU executing the program is the actual workings of the machine.

    AI: But we are not talking about a machine category per se. We are discussing software which is under the process category for 101.

    Hawkeyeaz1: Again I point to the analogy of a recipe, as id correlates very directly and very accurately for software. Recipes are not patentable, even if someone has managed to get a recipe patent slipped past the USPTO.

    AI: I don’t quite understand your logic here. You are claiming that anyone with a process patent, whether for software, recipes, or something else does not have a valid patent. So I must ask, on what authority do you base your claim. Did the Supreme Court say process patents were not valid? Did Congress? I don’t recall hearing or reading anything like that.

  153. 414

    We’re still discussing this? Somebody catch me up – are we about to resolve this whole software is/isn’t patentable issue?

  154. 413

    Actual Inventor: Gears are not in and of themselves patentable, as their is nothing new, remarkable, etc about a gear, and there is immense prior art.

    However, the idea is flawed as software is the steps, the process, the description of the workings of a machine, but NOT the actual workings of the machine. The CPU executing the program is the actual workings of the machine. Again I point to the analogy of a recipe, as id correlates very directly and very accurately for software. Recipes are not patentable, even if someone has managed to get a recipe patent slipped past the USPTO.

  155. 412

    Posted by: Hawkeyeaz1 | Sep 20, 2010 at 12:10 PM: “Software is the gears, the size and placement of the gears, the levers, the length and placement of the levers.”

    If it is true as you say that software is the gears. And as we know, all gears are patentable. Then using your own analogy software is patentable. right?

  156. 411

    you are not interested in the even-handed application of law, you are interested in the law conforming to your ideals.

    I thought using the law to go after the actual people who have violated the law was the even-handed application of law. I didn’t realize Lady Justice put people’s wallets in that little balance of hers.

    Why do you target the rich, rather than the actual law-breakers? Why don’t you want the rich to have an incentive to excel? That smacks of communism, which I presume is one of your ideals to which you are trying to conform the law.

  157. 410

    If it makes you feel any better, I’m not thrilled about targeting deep pockets in any area of law

    No, it doesn’t. It just means that you are evenmore biased than I had previously thought – you are not interested in the even-handed application of law, you are interested in the law conforming to your ideals.

    If the software is free/opensource, the patent in question can be worked around and thus is not applicable unless it is overly broad and vague.

    …or the patent covers the application and infringement is legally found.

    It is scary how much more in common these two posters have than they are different when it comes to applying their versions of the law.

  158. 409

    But most people know John who bought a gun doesn’t have much money, but the gun maker obviously does, so sue them for enabling John to murder.

    Yes, but the underlying offense is still the wrongful death caused by John, so you have to plead and prove a slightly different cause of action when you sue the gun maker.

    But if the software is proprietary, how can the user know? Thus they can not be held liable.

    Since when is intent an element of patent infringement? If it were, all of those socially-helpless programmers in their windowless rooms who always complain they don’t know or care about patents and the patents are fundamentally unsearchable anyway would be completely free of liability too, as would the big software companies that employed them.

  159. 408

    In regards to the current “who is responsible” debate, the same logic can be applied to gun manufacturers; when a gun is used to murder, who is responsible? Well, obviously the one who aimed the gun and pulled the trigger, not the gun maker.

    Thus, with software, the person who runs the program is the infringer, not the author/manufacturer. But most people know John who bought a gun doesn’t have much money, but the gun maker obviously does, so sue them for enabling John to murder.

    But if the software is proprietary, how can the user know? Thus they can not be held liable. If the software is free/opensource, the patent in question can be worked around and thus is not applicable unless it is overly broad and vague.

  160. 407

    For one who so readily sees parallels with other areas of law, IANAE is sure having a problem with the “deep pockets” approach here.

    If it makes you feel any better, I’m not thrilled about targeting deep pockets in any area of law. If you have a right, you should be going after the people who are actually infringing your right. Which, in the case of software, actually still could be the software company as long as you plead the right cause of action.

  161. 406

    but that’s not a legal reason for them

    For one who so readily sees parallels with other areas of law, IANAE is sure having a problem with the “deep pockets” approach here. There are lots of examples where the “legal reason” isn’t quite analogous with the plain facts. This should appease your equity sensitivity, yet instead riles you into wild postulations.

    Why is that?

  162. 405

    Wrong, the real argument is we’d rather sue the real culprit, i.e. the free-rider.

    Suppose you had a patent on a new method of swinging on a swing. Is the swingset manufacturer the “real culprit” and the “free-rider”?

    Suppose you had a patent on a method of making bread products. Is the cookbook publisher the “real culprit”?

    Or is the real “free-rider” the person actually carrying out the method you invented, and actually getting the benefit of your fancy software without paying a higher purchase price to reflect your royalties?

    I completely understand the desire to make more money from one’s patent, but isn’t this kind of a ridiculous way of doing it, when you could have had both unquestionably valid method claims and a perfectly serviceable cause of action against the “real culprit” (defined, of course, as the “person with all that money”)?

  163. 404

    IANAE: Especially when the software industry’s only real argument in its defense is “yes, well, we’d rather sue someone with more money”.

    Wrong, the real argument is we’d rather sue the real culprit, i.e. the free-rider.

  164. 403

    bottom line is it makes sense in the real world.

    Bottom line is that in the real world, all software is a set of steps to be performed by a computer. And in the real non-computer world, the only valid claim to that sort of invention is as a method of performing that series of steps.

    It may make business sense in the real world to have Beauregard claims, but that’s not a legal reason for them to be valid. Especially when the software industry’s only real argument in its defense is “yes, well, we’d rather sue someone with more money”.

  165. 402

    s/w geek: “That only supports the beauregard claim – the computer readable medium holding the software is akin to a portable unit comprising a novel arrangement of gears and levers which, when inserted into a general purpose machine, interacts with the machine to cause the machine to carry out a novel process.

    And yes, the naysayer will say beauregard claim recites no structural difference, but a posita in the real business world will appreciate the bounds of the claim. Beauregard claim, perfect example of living tree getting on with the times.”

    Bad analogy – the novel arrangement is undisclosed.

    But agree re living tree. All this up-and-arms over structural difference, losing the forest for the trees, bottom line is it makes sense in the real world. I like the post re hot air, forget who wrote it, totally agree.

  166. 401

    The “proper method claim” will force them to sue the customer (and then implead the person they really want to sue as a contributory infringer).

    Yes, because the customer is the one using the method they actually invented, and the person they really want to sue (for the sole reason that said person has lots of money it wasn’t planning to give them) is doing nothing more than making it possible for the customer to infringe.

    So basically they’re patenting inducement to infringe their actual invention.

  167. 400

    “the whole point of a Beauregard claim is which person the patentee gets to sue. Otherwise, they’d content themselves with proper method claims like everybody else.”

    The “proper method claim” will force them to sue the customer (and then implead the person they really want to sue as a contributory infringer). They want to sue whomever is selling the software, or the computer having the software stored in memory. The Beauregard claim will permit them to sue the proper party as a direct infringer, without getting lambasted in the press for suing some poor straw defendant.

  168. 399

    Hawkeyeaz1: “Software is the gears, the size and placement of the gears, the levers, the length and placement of the levers.”

    That only supports the beauregard claim – the computer readable medium holding the software is akin to a portable unit comprising a novel arrangement of gears and levers which, when inserted into a general purpose machine, interacts with the machine to cause the machine to carry out a novel process.

    And yes, the naysayer will say beauregard claim recites no structural difference, but a posita in the real business world will appreciate the bounds of the claim. Beauregard claim, perfect example of living tree getting on with the times.

  169. 398

    Actual Inventor:

    To put it simply, when dealing with physical objects, design includes what a CAD file contains. Design also includes the reason why (i.e. part A is this length so it does not interfere with part B so that part C can do _). Another company can use the same design, but if the process (mechanics with physical objects) is different, then there is no infringement on any patent. So if company A makes a transmission, company B makes a cast of the transmission that is nonfunctional, there is no patent infringement, though there potentially could be copyright infringement.

    There is certainly doubt that software, just like there is (rightful) doubt the CAD file for any physical object is patentable; it is not. There is no doubt, or even question on whether both are copyrightable, and copyright is sufficient protection for software.

    Software is the gears, the size and placement of the gears, the levers, the length and placement of the levers.

    The movement of lever A to move gear B into place to engage gear C is the process, or the execution. Software is executed on a CPU, and is useless without it.

  170. 397

    The patentee is still going to be able to sue someone,

    Yes, but the whole point of a Beauregard claim is which person the patentee gets to sue. Otherwise, they’d content themselves with proper method claims like everybody else.

  171. 396

    “I know you want to stretch that word to mean a simple data input trigger, but it doesn’t mean that to a PHOSITA.”

    So that would be the obvious design-around, then?

    Posted by: IANAE | Sep 17, 2010 at 03:59 PM

    The patentee is still going to be able to sue someone, so long as the method is embodied in instructions on a computer readable medium, whether it is in computer memory when the computer is sold, or on another disk sold separately from the disk storing the data trigger. I’d hardly call that a design around.

  172. 395

    If you think that what I said that you were saying (in effect: “all patent-eligible processes are, in some sense, methods of doing business, therefore all methods of doing business are patent eligible”) is not what you were really saying, could you explain what you think it is that you were really saying and how it differs from what I said that you were saying?

    Break it down into steps:

    What did you say?

    What did I say (you said)?

    How are the two different?

  173. 394

    AI:
    “I am not trying to be flip but reading that made me dizzy and my head hurt a little. Seriously.”

    Why am I not surprised? ;)

    But seriously, it’s really not THAT complicated, and I would be most grateful for a response.

  174. 393

    Writing software is no “manufacture”.

    _________

    Writing love letters is no manufacture.

    Writing poetry is no manufacture.

    Writing your opinion on this blog that software is no “manufacture” is no manufacture.

    But….

    Writing code is definitely a manufacture.

    and if you dont know why I respectfully recommend that you read the post by: Actual Inventor | Sep 18, 2010 at 03:33 PM

  175. 392

    44% of empty and meaningless insubstantial and twisted legal reasoning is nothing to be proud of.

    As people have noted – lost credibility means that repeating yourself only hammers that point home. Doing so does not make your position more compelling, nor does it fix the flaws in the positions taken.

    Absolutely amazing how much time has been sunk on this thread. What a waste.

  176. 391

    Why not?

    Writing software is a purposeful construct. Writing software is meant to “do something”.

    Surely, “manufacture” as a definition applies to writing software.

    A quick Google search reveals at least the following definitions that can easily apply:

    – put together out of artificial or natural components or parts; “the company fabricates plastic chairs”; “They manufacture small toys”; He manufactured a popular cereal”

    – industry: the organized action of making of goods and services for sale; “American industry is making increased use of computers to control production”

    – create or produce in a mechanical way; “This novelist has been manufacturing his books following his initial success”

    – fabrication: the act of making something (a product) from raw materials; “the synthesis and fabrication of single crystals”; “an improvement in the manufacture of explosives”; “manufacturing is vital to Great Britain”

  177. 390

    “I showed why software product companies can be viewed as high technology manufacturing entities”

    Writing software is no “manufacture”.

  178. 389

    Posted by: Hawkeyeaz1 | Sep 17, 2010 at 08:22 PM: This is the distinction you are missing, design is not in and of itself patentable, but the *implementation of the design* is. Software is the design only, the execution is the implementation of the design, but the implementation is not machine specific, thus software should not be patented.

    ________________

    Well, the fundamental flaw in your reasoning comes from a lack of understanding of what a process is and how that differs from a strategy or as you like to call it a design. In the art and science of patents a process is an objective series of steps that produces concrete measurable results. Whether those results are a widget of some type, some other goods and services, an improvement in quality, or simply a savings in cost, time or life.

    Now a strategy is similar to a process with the exception that once executed it may or may not work, even if its worked before. There could be a strategy or design to win the super bowl, or the second gulf war or picking up women. And depending on how, or when it’s executed the strategy may succeed or fail. But that’s the thing, it all depends on so many variables that there can never be any solid guarantee the strategy/design will work.

    I can get a copyright on the publication of a mere strategy, my design for success in any endeavor or at anything. However, because it is still subjective and subject to working or not, it’s not a process eligible under 101 for a patent.

    So now I hope you can see how a process that is patented is different from a strategy or design that can only receive a copyright. One is a subjective art, the other is an objective art. And while you can make a policy argument that software should not receive both copyright and patent protection. There can be no doubt software in and of it self is an objective art that deserves patent protection same as any other process in the patent world.

  179. 388

    44% to 22%

    That’s Shock and Awe baby – Shock and Awe.
    With that, who cares about credibility. We don’t need no stinkin credibility. Did George Bush worry himself about credibility? He ll no – shock and awe baby.
    Carpet bomb them – nothing left standing.

    Criminy, Cy, you be agreeing with Maxie about a US court giving a rip about a foreign patent and you be questioning my man IANAE’s credibility? That’s just shocking awful – that be what that be. Not shock and awe – shocking awful. Ya aint even be close to a throw rug, not even close to a toupée.

  180. 387

    Malcolm, as to the drop dead date for filing divisionals at the EPO, Friday October 01, 2010, I see a quiet stream increasing in volume as the day approaches. Too early to tell, whether it will become a veritable tsunami. Patent attorneys are busy people, focussing on the hottest due dates first. October 01 is still some time away. Ask me again, the day before.

    I expect you know but most readers here don’t, that the EPO will not entertain any claim amendment after filing but before it searches, that it searches only once, and only examines on the merits what it has searched.

    The consequences for claim drafting for the divisionals to be filed by October 01 I leave it for any readers with an interest to work out for themselves.

    I gather from this blog that few Americans have any interest in filing in Europe. That will surely help to keep the last minute filing rush numbers down. Besides, filing a divisional at the EPO can be grotesquely expensive when it is off of an old case. The accumulated EPO annuity payments are shockingly high. But better that than the post-issue national annuity payments to all those national Patent Offices in EPO Member States.

  181. 385

    On your transmission argument, the computer is the mechanical part of the transmission. Publishing a breakdown or rebuild manual will not infringe the patent on the transmission. The patent is the *design*, which is akin to software. Making a transmission with the same design WILL infringe the patent.

    This is the distinction you are missing, design is not in and of itself patentable, but the *implementation of the design* is. Software is the design only, the execution is the implementation of the design, but the implementation is not machine specific, thus software should not be patented.

  182. 384

    Les:

    They are not patenting the recipe for the drug, they are patenting the drug which is the finished product, the result of following the recipe. Drug manufacturers are required by law to print the ingredients of the drug on the packaging, and they are required to order them by the quantity. They just do not have to say how much or how to cook them. But if a chemist publishes the recipe, the drug manufacturer would have a hard time in court convincing the judge merely publishing a recipe was infringement, unless same individual manufactured and sold the drug.

  183. 383

    Ah Pook Wrote:Dear AI,

    If you think that what I said that you were saying (in effect: “all patent-eligible processes are, in some sense, methods of doing business, therefore all methods of doing business are patent eligible”) is not what you were really saying, could you explain what you think it is that you were really saying and how it differs from what I said that you were saying?

    ______

    I am not trying to be flip but reading that made me dizzy and my head hurt a little. Seriously.

  184. 382

    But I can imagine” – OK

    that a DC judge might pay some attention to

    an American corporate plaintiff/Patentee seeking relief from infringement” – OK

    by a Defendant importing Chinese made software discs into the USA” – OK

    and loudly shouting that he has already been given powerful relief in Europe.” – No. Such loud shouting is likely to be rebuked by the US Judge – it is simply not pertinent to US law.

  185. 381

    Hey Max – not intending to derail the thread but is the expected wave of EP divisionals before the October deadline turning into a reality? Ripple or tsunami?

  186. 380

    And even if you did, I could trivially design around any Beauregard claim by having my computer perform the “patented” method in response to a non-standard input.
    Do you think that would sit well with patentees?

    It wouldn’t bother my client patentees, because they’re not relying on Beauregard claims, as I already explained.

    But now your concern with Beauregard claims is that they can be designed around? Ok, you win. However, you should be aware that your style of argumentation is becoming increasingly NAL-like. It might be time for a weekend.

  187. 379

    But I can imagine that a DC judge might pay some attention to an American corporate plaintiff/Patentee seeking relief from infringement by a Defendant importing Chinese made software discs into the USA and loudly shouting that he has already been given powerful relief in Europe.

    OK. But you’ve got a much more vivid imagination than me. And it’s not going to happen. Contrary to what some Tea Partiers will tell you, the typical federal judge is perfectly content to leave patent policy to the legislature.

  188. 378

    I know you want to stretch that word to mean a simple data input trigger, but it doesn’t mean that to a PHOSITA.

    So that would be the obvious design-around, then?

  189. 377

    A person skilled in the art of computer programming can’t tell whether a string of data will instruct a computer to do any particular thing, because that’s a purely functional limitation with no corresponding structure. A computer is capable of performing any function on receipt of any instruction in any language, so the only way to know if it produces the result is to find a computer that understands the input and produces the result. Sure, your search is quicker if the data is in a standard format, but otherwise you run into Turing’s other problem – you don’t know if your search will terminate until it does. And you can always contrive a general-purpose computer that produces the result with an arbitrary input.

    I think you are off the deep end. Instructions can be compiled and/or decompiled. The machine code, if it is any recognizable machine instructions (as the term is used in the art) can be decompiled into a computer language that a PHOSITA can read and understand and hand trace the functionality. I know you want to stretch that word to mean a simple data input trigger, but it doesn’t mean that to a PHOSITA. You are generally pretty good about being intellectually honest, but your attempt to read instructions on all data is not bolstering your credibility.

  190. 376

    As you say, Cy, I have no idea how your judiciary works. But I can imagine that a DC judge might pay some attention to an American corporate plaintiff/Patentee seeking relief from infringement by a Defendant importing Chinese made software discs into the USA and loudly shouting that he has already been given powerful relief in Europe. And what about the amicus briefs to the CAFC if the DC declines to give relief from the infringing acts?

  191. 375

    In your example, the letter “Y” can’t be “program instructions for execution by a general purpose computer,” as typically claimed, since your (special) computer can only do one thing in response. In other words, your supposed program instructions can’t be rearranged and reconfigured to cause the general purpose computer to do other things.

    A general purpose computer always responds to the same instructions in the same way. If you give it different instructions, it does something else. Programming a general-purpose computer to parse input data does not make it a “special” computer, because if it did there would be no general-purpose computers that could run store-bought software at all.

    The Magna Carta example is slightly more appealing. I’ll buy it if you can show me that those same words on the Magna Carta can be systematically rearranged to make that same (general purpose) computer perform any other arbtirary function that a general purpose computer can do.

    Do you think regular patented store-bought software can get any useful response out of a general purpose computer if you rearrange it? Only if you’re rearranging individual ones and zeros, but you can do that with any arbitrary input.

    The claim terms “executable program code” or “program code” carry some meaning to one of ordinary skill in the art – I think your contrived examples ignore that meaning.

    There are lots of computer languages known in the art. There are lots of executable file types known in the art. There are lots of operating systems known in the art. There are lots of computer-readable media known in the art. There used to be fewer of them. If you want to limit your Beauregard claims to currently known forms of executable program code that’s fine with me.

    And even if you did, I could trivially design around any Beauregard claim by having my computer perform the “patented” method in response to a non-standard input.

    Do you think that would sit well with patentees?

    This leaves you essentially claiming program instructions in the abstract, which presumably most of us agree is no good.

    Presumably most of us agree that Beauregard claims are no good?

  192. 374

    After that, is it imaginable that the US court would tolerate a patent “weaker” than the one already successfully enforced in Europe?

    Completely imaginable. What’s unimaginable is that a US court would care one whit about European jurisprudence on Beauregard claims. You’re a smart guy, Max, but you really don’t know how our judiciary branch works.

  193. 372

    “your supposed program instructions can’t be rearranged and reconfigured to cause the general purpose computer to do other things.”

    No, but you can get a different computer and use the same instructions to do different things.

    “The claim terms “executable program code” or “program code” carry some meaning to one of ordinary skill in the art – I think your contrived examples ignore that meaning.”

    Yeah, they carry the “meaning” of their being a string of 1’s and 0’s. That’s the foundation of the “contrived” examples.

    “The better argument, which you’ve made, is that there is no functional relationship between the program instructions and the media – the functional relationship is to the unclaimed interpreter and/or compiler that resides on the computer. The function of the media is simply to hold stuff. This leaves you essentially claiming program instructions in the abstract, which presumably most of us agree is no good.”

    I made that one a long time ago. They’re all good. But yes, that leaves you with a 1 … 0 … 1.

  194. 371

    Well then, all I have to do is set up my computer to perform your fancy new method in response to the Magna Carta, or the letter “Y”, and your patent is commercially useless.

    In your example, the letter “Y” can’t be “program instructions for execution by a general purpose computer,” as typically claimed, since your (special) computer can only do one thing in response. In other words, your supposed program instructions can’t be rearranged and reconfigured to cause the general purpose computer to do other things.

    The Magna Carta example is slightly more appealing. I’ll buy it if you can show me that those same words on the Magna Carta can be systematically rearranged to make that same (general purpose) computer perform any other arbtirary function that a general purpose computer can do.

    The claim terms “executable program code” or “program code” carry some meaning to one of ordinary skill in the art – I think your contrived examples ignore that meaning.

    The better argument, which you’ve made, is that there is no functional relationship between the program instructions and the media – the functional relationship is to the unclaimed interpreter and/or compiler that resides on the computer. The function of the media is simply to hold stuff. This leaves you essentially claiming program instructions in the abstract, which presumably most of us agree is no good.

    Can we stop now?

  195. 369

    The claims in question were allowed by an examiner. Clearly, the examiner felt sufficient structure was identified in the spec.

    The exercise is meant to show the student that the requirement to describe structure in a transmission is not so much more –structural or concrete– than that provided in a functionally described software claim.

    The silly repeated reference to 112, only serve to emphasize that your respective positions have no ground upon which to stand.

  196. 368

    “Clearly, the examiner felt sufficient structure was identified in the spec.”

    In the gear case? Maybe unconsciously, though he probably didn’t think about it.

    In a Beauregard case? He probably never thought about it, at least from my discussions with other examiners.

    “The exercise is meant to show the student that the requirement to describe structure in a transmission is not so much more –structural or concrete– than that provided in a functionally described software claim”

    That “exercise”, aka question nobody wants to bother with, doesn’t show anything tho :( Sorry.

    “The childish reference to 112, only serve to emphasize that your respective childish positions have no ground upon which to stand.”

    LOL childish? 112 6th para doesn’t exist now except to childrans?

    On the plus side, you’re always good for an lol Lester Jester.

  197. 367

    Clearly, the examiner felt sufficient structure was identified in the spec.

    And it probably was. I’m sure the spec has at least one embodiment described in full detail, with pictures and everything, and if you built what was in the picture exactly as shown you’d have a functioning gearbox.

    Only, examiners don’t routinely apply 112 6th to Beauregard claims. They allow them because it is PTO policy to allow them. So the allowance of a Beauregard claim doesn’t mean the examiner felt that sufficient structure was identified in the spec. Much less that the examiner’s feeling was correct.

    The exercise is meant to show the student that the requirement to describe structure in a transmission is not so much more –structural or concrete– than that provided in a functionally described software claim.

    Would you be okay with construing all Beauregard claims under 112 6th, then? Limit them to the structures described in the spec?

    Incidentally, how many Beauregard claims even have written description support for a computer-readable medium?

  198. 366

    I gather that the first time a Beauregard is defended vigorously in court will be significant, because it will be the end of Beauregards.

    But readers (those who have any interest in reading my contributions) might it not depend on the facts of the case?

    Suppose effete and wimpy England has already enforced the Beauregards in the corresponding EPO patent, despite its validity being destroyable on a mere preponderance of evidence and despite Europe’s 101 patent-eligibility ban on “programs for computers” and “methods of doing business”. An entirely likely outcome, I would submit.

    After that, is it imaginable that the US court would tolerate a patent “weaker” than the one already successfully enforced in Europe?

    About as likely, I should think, as that more than 4 SCOTUS judges could bring themselves to announce to the American public that business methods do not belong to the “useful arts”. Such opinions will invite public ridicule, I suspect.

  199. 365

    The claims in question were allowed by an examiner. Clearly, the examiner felt sufficient structure was identified in the spec.

    The exercise is meant to show the student that the requirement to describe structure in a transmission is not so much more –structural or concrete– than that provided in a functionally described software claim.

    The childish reference to 112, only serve to emphasize that your respective childish positions have no ground upon which to stand.

  200. 364

    You are hereby invited to identify said “particular structure”

    I believe I already RSVPed “no” to that invitation.

  201. 360

    As of Post 346,

    a mere three people make up 44 % of the posts on this thread.

    Most posts on this thread: IANAE

    Second most posts on this thread: Malcolm Mooney (even discounting the obvious fraud posts – still results in a factor of two over the third most poster)

    The third poster added to make the 44 % is 6 at rank 5.

    In comparison, the top three posters for the opposing view make up 22% of the posts on this thread.

  202. 359

    You are hereby invited to identify said “particular structure” of said, for example gear shift clutch means.

    It’s the corresponding structure described in the spec. Which is required to exist by 112 6th.

    As to what exact structure is described in the spec, who cares? How is that relevant to anything? It’s a structural claim as a matter of law.

  203. 358

    I wager that a person skilled in the art can’t just look at a molecule and tell whether it has a particular DNA sequence or not. That’s why we’ve developed tools to look at such things.

    Tools that directly observe the physical structure of the molecule, which is objectively either the sequence or not.

    A person skilled in the art of computer programming can’t tell whether a string of data will instruct a computer to do any particular thing, because that’s a purely functional limitation with no corresponding structure. A computer is capable of performing any function on receipt of any instruction in any language, so the only way to know if it produces the result is to find a computer that understands the input and produces the result. Sure, your search is quicker if the data is in a standard format, but otherwise you run into Turing’s other problem – you don’t know if your search will terminate until it does. And you can always contrive a general-purpose computer that produces the result with an arbitrary input.

  204. 357

    “http://www.google.com/patents/about?id=EXYxAAAAEBAJ&dq=gear+transmission”

    That has a lot of structure in it so far as I can see, how does this help you Lester Jester? It does nothing but prove our side’s point. Put your structure in and you get a patent. ”

    You are hereby invited to identify said “particular structure” of said, for example gear shift clutch means.

    link to patft.uspto.gov

  205. 356

    Well, no. A person skilled in the art can’t look at raw data on a memory device and tell whether it contains computer-readable instructions or a sequence listing or a table of Mersenne primes. The only way a person skilled in the art could make that determination would be to see if a particular computer can do anything with the data. Even if the file ends in .exe, the computer may be unable to execute the file because it’s corrupted or for some other reason.

    Not your best argument. I wager that a person skilled in the art can’t just look at a molecule and tell whether it has a particular DNA sequence or not. That’s why we’ve developed tools to look at such things.

  206. 355

    “http://www.google.com/patents/about?id=EXYxAAAAEBAJ&dq=gear+transmission”

    That has a lot of structure in it so far as I can see, how does this help you Lester Jester? It does nothing but prove our side’s point. Put your structure in and you get a patent.

    “How would you know? ”

    Because they readily admit it.

  207. 354

    “Unfortunately Les, this is where your argument breaks down. One of ordinary skill has no idea about of any of the “wide range” of selectable structures.”

    How would you know?

  208. 353

    I by myself in agreement with IANAE that software should only be patentable as a machine process. A claim to a machine should define some new structure. Software, in contrast, uses an old structure for a new function. Under the patent law, such claims are process claims.

    Regarding the Beauregard claims, why do we need them? The seller of software is a contributory infringer. Their presence adds bootstrapping to bootstrapping to end up with a mess, from a patent law point of view.

  209. 352

    “that ones of ordinary skill in the art would understand imply a wide range of selectable structures”

    Unfortunately Les, this is where your argument breaks down. One of ordinary skill has no idea about of any of the “wide range” of selectable structures.

  210. 351

    I think they even teach software classes called “Structures”.

    LOL. Very compelling.

    Almost as compelling as Rader in Lowry doing his best Faye Dunaway imitation.

    “It’s conceptual!” SLAP! “It’s physical!” SLAP! “It’s physical because it’s conceptual!” SLAP!

  211. 350

    I think they even teach software classes called “Structures”.

    Heh. And people accuse me of playing silly buggers with semantics.

  212. 349

    ^^^FIXT^^^

    Well, no. A person skilled in the art can’t look at raw data on a memory device and tell whether it contains computer-readable instructions or a sequence listing or a table of Mersenne primes. The only way a person skilled in the art could make that determination would be to see if a particular computer can do anything with the data. Even if the file ends in .exe, the computer may be unable to execute the file because it’s corrupted or for some other reason.

    Even assuming that the person skilled in the art could recognize any standard format, including compressed formats and the like, you would be limiting your Beauregard claim to media, computer languages, and file types that existed at the relevant date. Well then, all I have to do is set up my computer to perform your fancy new method in response to the Magna Carta, or the letter “Y”, and your patent is commercially useless.

    But that’s not what Beauregard claimers want. They want their claims to be understood in the art to cover any possible string of data on any possible computer medium that causes any possible computer to carry out the method they should have been claiming in the first place.

  213. 348

    “Maybe it is. Still, a “means” is the structure disclosed in the spec. It is not functional language. Combinations of structure are still structure.”

    And the interrelationship of software functions and groups and kind of data are structures…

    I think they even teach software classes called “Structures”.

  214. 347

    The only difference between instructions and “mere data” is what a PHOSITA understands the zeros and ones to represent.

    ^^^FIXT^^^

  215. 346

    I think the word “instructions” in your example claim is a term of art that will not read on mere data.

    The only difference between instructions and “mere data” is what the computer understands the zeros and ones to mean. The contents of any computer-readable medium are instructions to the unclaimed computer but mere data to the computer-readable medium. Code written in C is instructions to a C compiler mere unintelligible data to a Pascal compiler. An .exe file is instructions to a PC but mere data to a Mac.

    At least with gears in a machine you can say that the functional language implies a certain structure, because the function is mechanical. With computer-readable data you can program any computer to understand any string of bits as instructions to perform any step at all. Unless you claim the actual computer (at least), the claim is meaningless.

    Apparently, the invention isn’t the particular kind of gear shift clutch means selected, but is instead in the use of a gear shift clutch means of what ever kind in combination with the other recited means…

    Maybe it is. Still, a “means” is the structure disclosed in the spec. It is not functional language. Combinations of structure are still structure.

  216. 345

    Otherwise, if what you’ve invented is a sequence of method steps to be performed by a computer, you shouldn’t really be complaining when someone insists you claim it as a computer-implemented method rather than as a list of steps you’ve saved to a disk.

    Which is precisely what my patent-knowledgeable clients insist that I do. It’s also what I recommend to my less knowledgeable clients. Those who think they’re striking a blow in favor of software patents by arguing for Beauregard claims are barking up the wrong tree. (I think I just mixed a metaphor…) This discussion is a massive waste of time. Again.

  217. 344

    “The particular structure is either in the spec or not. So either the claim is structural or it’s indefinite. I don’t care which it is or what the structure is. If it’s valid it’s structural.”

    The structure is broadly and vaguely described, mostly through functional descriptions that ones of ordinary skill in the art would understand imply a wide range of selectable structures. Apparently, the invention isn’t the particular kind of gear shift clutch means selected, but is instead in the use of a gear shift clutch means of what ever kind in combination with the other recited means…

    Just like the functions recited in software patent claims.

  218. 343

    Regarding IANAE’s example of the Magna Carta in disk:

    I think the word “instructions” in your example claim is a term of art that will not read on mere data. So I don’t think the claim reads on the disk storing the Magna Carta alone. Would it read on the computer though? Probably, if it has those instructions encoded in memory, as opposed to having that functionality as a result of analog circuitry.

  219. 342

    IANAE: I think at this point you just want the last word. So, respond to this and you will have the last word.

  220. 341

    NWPA: Beauregard claims are a component of a machine for goodness sake.

    Yes, they’re a memory of some type. With instructions written on it. Instructions that don’t affect how the memory works at all.

    If you had a gear with stuff written on it, sure, it would be statutory as a component of a machine, but no matter how clever the writing it would be an unpatentable prior art gear because the writing doesn’t count.

    I believe that under the current law a computer with novel software written on it might be patentable. A suitable method wherein the steps are performed by a computer is almost certainly statutory. I think that’s pretty generous already. Otherwise, if what you’ve invented is a sequence of method steps to be performed by a computer, you shouldn’t really be complaining when someone insists you claim it as a computer-implemented method rather than as a list of steps you’ve saved to a disk.

    Les: You are hereby invited to identify said “particular structure” of said, for example gear shift clutch means.

    The particular structure is either in the spec or not. So either the claim is structural or it’s indefinite. I don’t care which it is or what the structure is. If it’s valid it’s structural.

  221. 340

    “Both are means-plus-function, so they are actually claiming particular structure as a matter of law.”

    Re:

    A change-speed transmission according to claim 1, characterized in that the first and second engageable means are respectively formed as a gear shift clutch means and a gear shift brake means.

    You are hereby invited to identify said “particular structure” of said, for example gear shift clutch means.

    link to patft.uspto.gov

  222. 339

    >>What rankles is the PTO giving handouts to a >>sea of undeserving software

    That may be true, but Beauregard claims have nothing to do with the problem if there is one.
    Beauregard claims are a component of a machine for goodness sake. Of all the problems our patent system has, I think Beauregard claims–even assuming you are right–are near the bottom of the list.

  223. 337

    NWPA MM you haven’t given up yet?

    What’s to give up? It’s not like it’s very difficult to make the argument that I’m making (or that IANAE is making). It’s fairly straightforward. It’s very similar to the product-by-process issue I argued before. The True Believers start from the assumption that the patent system is a free-for-all where everybody is entitled to a pony. If you pardon the pun, that’s a recipe for a smackdown.

    I don’t start from such assumptions. I don’t hxte software, I don’t hxte computers, and I certainly don’t hxte patents. What rankles is the PTO giving handouts to a sea of undeserving software applicant, where the nature of the handout requires (1) relying on case law that is internally contradictory and/or predicated on self-serving fictions and (2) relying on case law that is contradictory to the reams of more recent and far better reasoned case law that is applied against every other applicant.

    Pretty simple. The better question is why haven’t you given up? Or maybe that’s not accurate. It’s more like: since you’ve given up, why do you bother commenting on the subject?

  224. 336

    MM you haven’t given up yet? Wow, too bad NAL isn’t around. She be having a ball right now.

  225. 335

    African software — hands down the best, not like that turdy USA software. Easy to find stuff too.

    As for Indian and European software, anytime I buy European software, I end up talking to Indians, so both must be great.

    Posted by: Malcolm Mooney | Sep 17, 2010 at 09:50 AM

    Another unfunny namestealer.

  226. 333

    That explains why there are so few software companies in the US. Software patents must be banned so that we can get this fledgling industry off the ground and put Americans to work.

    Posted by: Malcolm Mooney | Sep 17, 2010 at 09:32 AM

    “In the meantime, if we could harness the hot air generated by the subject then we could probably solve the energy crisis.”

    Why is everybody always picking on me?

    Posted by: Malcolm Mooney | Sep 17, 2010 at 12:09 PM

    Namestealers. Dennis, please ban.

    Thanks.

  227. 332

    So then, these claims are not patentable?

    Both are means-plus-function, so they are actually claiming particular structure as a matter of law.

    What’s more, they’re dependent claims, so they’re necessarily statutory as long as the mystery claim 1 is statutory, unless they somehow render the transmission inoperable or something.

    Now, if you can find me a Beauregard claim to a transmission, we might have something interesting to discuss.

  228. 331

    “You patent a new transmission or a new arrangement of gears by claiming its structure.

    If you claimed “a gear comprising an arrangement of teeth that causes a general-purpose machine to do steps A, B, C”, you’d have a hard time getting that one past the examiner.”

    Your argument seems to be, that software should not be patentable because the office doesn’t like functional claiming. So, change what the office likes.

    The anti software people say patents should be patented because everything is obvious.

    If everything is obvious, then one of ordinary skill in the art would understand a claim reciting instructions for carrying out functions A, B, and C and the interrelationship of the inputs and outputs of A, B and C. Therefore, claiming the invention that way should not be a problem.

  229. 330

    “You patent a new transmission or a new arrangement of gears by claiming its structure.

    If you claimed “a gear comprising an arrangement of teeth that causes a general-purpose machine to do steps A, B, C”, you’d have a hard time getting that one past the examiner.”

    So then, these claims are not patentable?:

    A change-speed transmission according to claim 1, characterized in that the first and second engageable means are respectively formed as a gear shift clutch means and a gear shift brake means.

    A change-speed transmission according to claim 1, characterized in that the first and second torque-transmitting train means include each a separate engageable means operable to selectively connect different rotatable members of said input transmission means with said output shaft by way of different rotatable members of said main transmission means.

  230. 329

    When the US constitution was written, nothing comparable to computer software existed either in reality or in imagination. In 1952, the burgeoning economic significance of the software industry as it now exists could barely have been envisaged.

    It is self-evident that computer software development is a “useful art” within the terms of the constitution.

    It is equally self-evident that there are important differences between computer software “processes” and “products” on the one hand and traditional industrial processes and products on the other, as evidenced by the coining of the term “software” itself.

    The question is not whether innovations in the field of computer software ought to be eligible for patent protection.

    The real questions relate to the criteria to be applied in granting patent rights in relation to computer software and the terms under which such rights are to be granted.

    Responsibility for resolving those questions lies with both the courts and the government.

    In the meantime, if we could harness the hot air generated by the subject then we could probably solve the energy crisis.

  231. 328

    Computer instructions on a CDROM, EEPROM, RAM or ROM are the gears in the machine and should be just as patentable as a new transmission or new arrangement of gears in an adding machine.

    You patent a new transmission or a new arrangement of gears by claiming its structure.

    If you claimed “a gear comprising an arrangement of teeth that causes a general-purpose machine to do steps A, B, C”, you’d have a hard time getting that one past the examiner.

  232. 327

    Hey Les let’s say I am a person with a very rare disease. My trusty DNA unlocks the secrets for the Scientist.The only problem it is my DNA. Want to buy it. Then you could Patent me. If I choose to allow you to constantly cull my DNA as you worked for the Cure. Then you could Patent me. Otherwise a machine is only as good as the humans that programmed it. And if a human forgets just one piece of data. How often will that machine be wrong? The human wasn’t wrong though. He just forgot. The machine didn’t forget. Why? because it is not a Human. The machine can’t fix it. It doesn’t have the data.The human has to do that.

  233. 326

    Computer instructions on a CDROM, EEPROM, RAM or ROM are the gears in the machine and should be just as patentable as a new transmission or new arrangement of gears in an adding machine.

  234. 325

    Dennis: There are many patents on recipes.

    Dennis, I honestly don’t blame you for not reading all the nonsense in this thread, but I mentioned about 200 posts ago that those patents cover only the actual method of making (as and when actually performed) and not the recipe recorded on a readable medium.

    And it’s not because anything inherent about patents precludes limiting the free flow of information. It’s because what is claimed is the actual process, which is not literally directly infringed by a recorded list of instructions for carrying out the process. Whereas a Beauregard claim does literally cover a recorded list of instructions for carrying out the process, but not the process itself.

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    There are many patents on recipes. See, for example US Patent No. 5,510,136 that is titled a “Method of Making Bread Products. link to google.com.

    Like any patent, the exclusive patent right does not include a right to limit the flow of information or, for instance, sharing the details recipe without license. Rather, the patent excludes others from practicing the invention or selling the baked goods.

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    A recipe is still a recipe if it is in someones brain and was never written down.

    Okay, fine. That’s a non-statutory example of a recipe, but I hope you can still see why someone’s memory of what the steps are is different from someone actually performing the steps. That’s the important distinction here. The recipe is not the process. The recipe only tells you what the process is. The recipe does not result in the product being made, which is why your cookbook doesn’t have dinner on the table when you get home.

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    IANAE –

    I understand YOUR definition of recipe is something written. I just disagree with it. A recipe is still a recipe if it is in someones brain and was never written down. I make a great batch of hummus from a recipe I came up with, which exists only in my head. I am programed to make it.

    A recipe is a method of making something. It has nothing to do with writing it on paper or any other media.

    Computer instructions on a CDROM, EEPROM, RAM or ROM are the gears in the machine and should be just as patentable as a new transmission or new arrangement of gears in an adding machine.

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    It would stink if reading a patent application was infringement all by itself.

    Well then, I guess it’s pretty lucky that virtually none of those Beauregard specs disclose any code. You’d need a “special” computer to parse the flowchart in Figure 1.

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    Outside the computer arts, there are no patents on recipes. Unless one slipped through the cracks somehow. None of the patents on methods of making food or anything else would be directly infringed by the recipe stored on a readable medium.

    The patent publication itself is a recipe for carrying out any of the methods described therein. It would stink if reading a patent application was infringement all by itself.

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    Dear AI,

    If you think that what I said that you were saying (in effect: “all patent-eligible processes are, in some sense, methods of doing business, therefore all methods of doing business are patent eligible”) is not what you were really saying, could you explain what you think it is that you were really saying and how it differs from what I said that you were saying?

    And BTW, what I am saying/asking has nothing to do with whether I am pro or anti anything. It has to do with the logic of your argument.

    Respectfully yours

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    Ned: Printed Matter or its equivalent? Is it that the program has no novel functional relationship to the machine or article? Is the machine or article therefor not “new?”

    I think if you claimed the actual computer programmed to perform the method and capable of performing the method, you might get around the printed matter doctrine on the basis of a functional relationship.

    But that won’t cut it for an isolated memory (or “computer-readable medium”) containing the program. A memory is just a container that stores whatever you write to it. There’s no functional relationship there.

    If the program makes the computer a whole different computer for some reason, and that’s your invention, you really should be claiming the “whole different computer” anyway. It’s a statutory machine with functionally-related code on it.

    Les: You said you can’t patent a recipe. In fact you can. That is, you can patent a method for doing something or making something.

    You really don’t get it, do you? A recipe is a set of instructions written somewhere. It is not the method of making. The method of making is what happens when someone executes the instructions in the recipe and actually results in making the thing.

    Outside the computer arts, there are no patents on recipes. Unless one slipped through the cracks somehow. None of the patents on methods of making food or anything else would be directly infringed by the recipe stored on a readable medium.

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    Hawkeyeaz1-

    Re:

    “Just because a patent was granted does not mean something is patentable. We also have heard of patents such as “A method for swinging from side to side on a swing” being granted. Seriously, how many people have done that in their childhood?

    Patents are overturned on a regular basis, often when someone requests a review of a patent that should not have been issued. If such a request were made for the bread patent, everyone knows the patent would be overturned.”

    There is no doubt that mistakes are made. I hear that occasionally, software gets released that doesn’t always work quite the way it was advertised to work as well. That doesn’t mean that software doesn’t exist.

    You said you can’t patent a recipe. In fact you can. That is, you can patent a method for doing something or making something. Many such patents are litigated and found valid. A generic drug manufacture recently challenged the validity of one or more patents to Crestor, which I’m sure would have included claims to a method for making Crestor. The patent was found valid.

    I just listed the first 10 hits on a google/patents search for the terms method and bread. There were hundreds if not thousands of hits…..this isn’t a case of an isolated swing technique patent.

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    Any argument that software patents foster innovation is spurious at best – not because they are bad, but simply because the USPTO and legal systems in the US are actively prohibit this:

    • there are too many patents, coming too fast;
    • many are open to broad interpretation;
    • even if you could search all patents, given that the interpretation is unknown, it is economically impossible to know before hand if your new software will infringe;
    • a portfolio of defensive patents is something only large organisations can afford – taking innovation away from the startups;

    In the US, it is now impossible to build software without the risk of infringement. If you are a small business, you are probably safe; however the system leaves you open to the risk that you might get sued, a fight you have to settle (and risk your business) if you can’t afford to defend, or risk going out of business if you fight (whether you win or lose). This risk gets worse the bigger you are.

    Finally, the countries that do not recognise software patents (i.e. almost every other country in the world) seem to be doing OK without them. I’d hardly accuse India, Europe, Russia, Africa, South America or China of lacking innovation.

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    There is far too much cr ap, too much philosophy without critical legal analysis (and what legal analysis there is is so badly mangled as to be incomprehensible to the actual legal holdings) on this thread from the anti-software patent crowd to respond to individually. It’s as if BP switched to the septic business and built their pump on this thread.

    Alas, sarah’s particular advice and IANAE’s general advice (as modified by Ping) should be taken to heart.

    Of course, that is not going to happen – it hasn’t happened yet and there is nothing that will change the views of those that refuse to actually critically analyze the case law and accept what that law has stated. It doesn’t matter what the law is, what these people want to rail on (and on) about is what they want the law to be.

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    Man, any of you folks have jobs?

    These arguments keep going in circles, and circles, and circles, and circles, because both sides have valid points, but neither will acknowledge the validity of the other, kind of like the Israelis and the Palestinians. You start with your preferred bias, and you can pretty much find some case law that supports it.

    Some of you people need to look back over the last, say, 100 days and figure out just how much time you’ve devoted to attacking one another, and look what you’ve really accomplished for all of your chest-pounding and name calling. And that goes both for the people I generally agree with and those who annoy the crxp out of me. With all the time you’ve spent writing your ever-so-insightful comments you could have been doing something useful, like watching TV or playing video games or picking fights in bars.

    Get lives, all of you. Agree to disagree. Subject matter eligibility will remain a mess until Congress steps in, which will be when hell freezes, and they’ll just make it worse. The best I can tell some clients is that it’s a crap shoot; I believe what they are doing is innovative and deserving of protection but – OMG it’s made possible by processors and network- it’s anybody’s guess what’s going to make it through the PTO and if it does, whether it will hold up in court. Maybe you’ll get an examiner with a rubber stamp for a hand – maybe you’ll get the guy who’s sworn to defend the republic against the plague that is limited monopolies. Maybe it won’t get examined for 53 months and who can guess how the case law will have evolved by then, or what special interest group will have managed to push through Congress some half-baked scheme. For some clients a patent application is like half of a condom – it’s better than no condom, if not by much, but without it you’re stark naked and with it you can at least claim you’re wearing something.

    Sadly, I actually read like a quarter of this drivel. I’m sure there are many like me that can’t help watching a train wreck, even though they saw one each previous day this week. At least I recognize my problem and, like TV, I’m increasingly able to avert my eyes with age. Someday I’ll give it up entirely, like many others have, I’ll just read what DC has to offer AND THEN STOP. But some of you have much deeper issues. And some of you need to learn to write…

    And Sarah, do you have a friend that might be able to step in and explain on your behalf what the hll you’re talking about? Does it have anything to do with patent law? You’re an examiner, right?

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    over 300 comments, nice. Can someone give me an executive summary of the article + comments. Say, about 100 words or less?

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    “means one of two things”

    By your now deciding to arbitrarily define it thus. Gj.

    “I won’t even get into why copyright is inappropriate”

    Then go whine to congress to get a special software patent setup. Stop perverting the useful arts patents for your nefarious ends.

    ” it suffices to say that you are clearly unfamiliar with the technology.”

    Considering the fact that I’ve written my own code and made my own “special purpose” programmed general purpose machines I have to disagree with you. I’m rather familiar with it.

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    Ugh!

    We need clarity.

    Posted by: Ned Heller | Sep 16, 2010 at 07:56 PM

    _________

    The Supremes gave you clarity in Bilski but you don’t want to accept it for reasons known only to you.

    You are either over analyzing or being willfully obtuse. You ask if a computer running software that performs the hedging method Bilski invented is patentable at 101 and the answer is yes.

    Why wouldn’t it be? Such a machine passes the concept and application analysis applied by the Supreme Court in Bilski.

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    6: “There is a difference between the two statements. They are both correct but only one is relevant to our current situation. Mine.”

    Wrong. In the context of our discussion, the “most practical way of commercializing and disseminating the method” means one of two things: an apparatus for carrying out a novel method, or a medium holding executable logic for converting a general purpose apparatus into an apparatus for carrying out a novel method. Therefore, my statement is merely a subset of your statement, as I pointed out.

    6: “You have copyright for your musings in software.”

    I won’t even get into why copyright is inappropriate, it suffices to say that you are clearly unfamiliar with the technology.

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    Malcolm, agreed as the structural differences. They are not claimed. What the applicant’s are intending to claim are the novel functions of the machine – which is the reason why I suggest the MOT test applies to computer means plus function claims where the novel functions are essentially the steps of a process claim.

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    Just a point on the Beauregard settlement: as a general rule, stipulated settlements between parties have no preclusive effects other than to claim preclusion. They have no preclusive effects regarding the same legal issue. Thus, the PTO has the legal right to raise the issue of patentability of Beauregard type claims even today. They are not bound by any prior judgment whatsoever.

    I believe the Beauregard order vacating the Board decision, the Federal Circuit was clear that the order was not intended to have any preclusive effect whatsoever, save for the claim preclusion.

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    Ned Clearly, they are physically different, but are they truly, functionally, the same thing? I think not. The computer programmed with the Bilski method functions differently. It is different, and materially so. It is “new.”

    A machine that puts a shadow on a sphere using algorithm X is “new” compared to a machine that puts a shadow on a sphere using algorith Y in exactly the same way that a CD-player is “new” when I take out the Black Sabbath CD and put in the Kitaro CD, which is to say not at all for patent purposes.

    Of course, the CD player with the Sabbath CD is structurally distinct from the CD player with the Kitaro CD player, because the CDs are structurally distinct.

    The structural distinctions are never claimed by software applicants, however. Indeed, the distinctions are not discussed nor are the applicants ever in possession of knowledge as to what the structural distinctions are. Such requirements are waived for software applicants.

    And as a result everyone suffers as the PTO goes down the toilet. And who complains the loudest? Applicants in the computer-implemented art units.

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    What r u talking about?

    I said this:

    “There is a distinction between the method and the “most practical way of commercializing and disseminating the method” that is quite important. Fundamental even.”

    You said this:
    “There is also a fundamental difference between a method and an apparatus purpose-built to carry out the method,”

    There is a difference between the two statements. They are both correct but only one is relevant to our current situation. Mine.

    “wut r the policy reasons”

    You have copyright for your musings in software. That’s aplently. More than enough really.

    While there are various other policy reasons against patenting software straight up, I’m not particularly fond of them, nor do I care much about them.

    Even if copyright weren’t though, I have no issue with issuing claims to CRM’s that recite novel and nonobvious structures. If you want a claim to your software on a CRM, tell me the structure, just like everyone else. I’ll compare it to the prior art and we’ll see about you getting a claim.

    What is the policy reason for requiring structure to be recited? The same policy reasons for requiring all other claims to recite structure in apparatus/product/composition claims. The list could go on for days, but it would begin with that it is axiomatic.

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    So, AI, in your view, a computer programmed to perform an abstract idea (e.g., Bilski), or a Beauregard claim to the abstract idea program, is not patentable as a machine or an article of manufacture for what reason?

    Printed Matter or its equivalent? Is it that the program has no novel functional relationship to the machine or article? Is the machine or article therefor not “new?” Clearly, they are physically different, but are they truly, functionally, the same thing? I think not. The computer programmed with the Bilski method functions differently. It is different, and materially so. It is “new.”

    Now we begin to see the conceptual difficulties of Bilski. Was the real vice in Bilski its lack of a tie to a machine or was it that what it DID was was not directed to patentable subject matter? It has to be the latter.

    Circling back, the MOT test seems equally applicable to programmed machines and to programmed articles of manufacture. If the machines do not operate in a manner that passes the MOT, the claims will fail Section 101 even though they may be physically new machines.

    Ugh!

    We need clarity.

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    “invention” is nothing more than an idea. Just like those flow charts which disclose hardly anything to anyone. They are all too, just ideas.
    *THAT* is the problem with software patents and BMPs. And you cannot draw the line between them.
    Posted by: Scott Dunn | Sep 15, 2010 at 02:36 PM
    ____________

    Scott, all inventions are ideas. The important distinction to make is if the invention is an abstract idea, or an applied idea. Once you apply your idea it is no longer abstract. And the Supreme Court concurs.

    Most laymen (non inventors) on here get confused because they believe that flow charts containing steps for improving processes whether by hand, computer or some other technology are merely ideas on paper.

    That’s why you see so much frothing at the mouth over computer software and so called business method patents.

    But what they fail to understand is that once an idea goes through the rigors of a process analysis and has been flowcharted it now has an important distinction of being objective.

    By executing the steps of the flowchart the users can produce a certain outcome every time that can be objectively measured. This enables and puts the invention in the realm of science and technology and out of the subjective world of poetry and art.

    With process inventions, whether executed by computers or solely by humans, businesses can save time, money, improve quality and complete mission critical tasks that make a real difference in our world and everyday lives.

    Think about it Scott. Processes of all kinds, with and without computers, put the food on your table, the EMT’s and Fire Fighters at your door, and men and women into space.

    I personally couldn’t think of a more important invention to incentivize for continuous innovation than processes. And thank God we had a Supreme Court majority learned and astute enough to see the light and not slam the door shut on progress.

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    6: “Several people just got through telling you the reasons.”

    I mean, policy reason, not ramblings on what’s wrong with Beauregard claims, which I’ve agreed are not ideal but better than nothing.

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