By Jason Rantanen
Several interesting new articles are currently making the rounds. Two particularly noteworthy ones are summarized below:
James Bessen, A Generation of Software Patents
Do patents benefit software firms? James Bessen examines this issue through both a survey of existing literature and a new empirical study. Bessen finds that although the number of software-related patents has grown rapidly over the past decade, the share of those patents obtained by software firms has remained relatively small, and is largely accounted for by the activity of a small number of large software firms. In other words, most software patents go to firms outside the software industry. Bessen also provides data that brings into question the value of patents to startup software firms and examines changes in the probability that a software patent will be involved in litigation during the first four years of its patent life.
The complete article is available via ssrn here.
Mark Lemley, The Myth of the Sole Inventor
In his most recent major article, Mark Lemley challenges the canonical story of the lone genius inventor while proposing a novel justification for the patent system. Professor Lemley first breaks down the idea that invention occurs independantly, created by a handful of extraordinary inventors, through a series of vignettes about famous inventions: the steam engine, steamboats, the cotten gin, and other classic examples of pioneering inventions. Rather than lone inventors, Lemley argues, history is replete with examples of simultaneous invention, calling into question the traditional incentive justification for the patent system. Nor do any of the other conventional justifications for the patent system work, Lemley suggests. What is needed instead is a new theory, which he offers: patents encourage patent racing, which drives innovation to occur faster, and in a more diverse manner, than it otherwise would.
The complete article is available via ssrn here. Written Description blog offers a more in-depth discussion of the article.
As to Mark Lemley’s “The Myth of the Sole Inventor,” see a detailed a response to this paper showing that Lemley has his “facts” wrong on the examples he brings and that his thesis falls apart. link to bit.ly
Jason!
At some point software patents makes no sense; bot we can’t deny the fact of Software Evolution in recent years.
Unfortunately for those in the digital realm, software patents remain unpopular. But instead of advocating for getting rid of software patents altogether, perhaps concerned parties should begin discussions on how to create a software patent that works for developers. For instance, instead of the usual costly, 17-year patent, maybe it’s time for an inexpensive, 5-year software patent that reflects software’s low overhead and rapid obsolescence? Some other countries offer multi-tiered patent systems; I think it’s time the U.S. started discussions in that area.
Ned,
At the pains of being called names (but in part to refute the penchant of those who call names), I draw your attention to the objective quality of patents and the intersection with the “software” arts (the so-called non-grownup area of the patent world).
Gene Quinn has published a post on Objective Patent Quality (and no, Gene Quinn had no hand in determining this quality) at link to ipwatchdog.com
It is interesting to note in the highest twenty five ranked classes for patent quality, there are four direct classes captured by Bessen and an additional 18 that are likely related to “software” patents.
It is actually easier to count the non-software patent classes in those art areas objectively ranked as highest in patent quality.
I don’t know what types of “questions of value” are covered in the Bessen article, but if quality is valued, this Quinn link likely paints a far more promising picture of these grown-up arts.
Ned,
This is a clear example of what I posted on the other thread.
More Questions is not being rude here – at all.
His questions are on point, are very interesting, and raise valid concerns with what you have posted.
In fact, the only person in this exchange who is being rude is you, for not answering forthrightfully.
Why don't you stop being so rude?
Sent from iPhone
> 1) What’s so new about “patent racing” anywhere
> else in the world than the USA
I have not read the 68 Lemley pages. However, this “new” justification for patents is not convincing on its face. There is already a “first to market race” that is hundreds if not millions times more important than a “patent race.” Moreover, if we already have a first to market race, why do we need another race? May be he has addressed this issue in the paper…
I see patents as an insurance policy – a way to protect your investment in creating IP. This justification works for copyrights & TMs also. Why do we need another justification?
Why don’t we not change the focus and answer the questions?
It is OK to say you don’t have answers. You have done so with the first question already.
Why don’t we instead discuss your list of requirements to be an article, and where you got that list.
“We don’t have a precise answer”
OK then – one answer is an “I don’t know.”
Now let’s see if we can get actual answers (mere “suggestions” do not qualify as answers) to the other questions…
“I will also remind you that the patent right is not limited to those items that can be sold. The exclusionary right of a patent is negative – not positive. The act of selling simply is not a requirement that must be somehow met.
While the senses can verify the presence of the item, such is also not a requirement – and definitely not to the level that you are advocating here. Further, not all of the senses need be used to establish a presence, would you agree? Thus my question of “microscope”(question unanswered). Thus, to “hold” simply is not a requirement, and hence my question of the metaphorical “box” (question unanswered).
So, your answer immediately above does not answer my questions. Articles of manufacture may have attributes that fit your initial classification, but they need not.”
Can we get additional “I don’t know’s” to:
Why a microscope?
How big of a box? Can the “box” be a metaphorical term?
Pedantic, I thought 42 was the number angels who could dance on the head of a pin.
Ned, that’s easy – 42
“Not if they’re also firing arrows ya jakarse. ”
Hey – I’m not the one that said it was their ignorance that was blotting out the sun. Can I help it if you are too dense to see the comedy in your statement?
Plato, you can ask questions about time space all you want if you give is all the answer to a very simple question:
What is the speed of gravity?
Not if they’re also firing arrows ya jakarse.
So, the Dark Ages were not dark?
Wouldn’t their ignorance need to be physical objects for them to blot out the photons from the sun?
What is mass?
There shall be no light if their ignorance blots out the sun!
Yet, WE WILL FIGHT IN THE SHADE!
link to google.com
I thought that the article was about money for students going into patent law…
“Do you really think that something must have mass to be “physical”?”
What is the mass of a photon? Is a photon a non-physical particle?
How long is “momentary”? How long is “long enough?
We don’t have a precise answer. However, if you cannot put it in a box and sell it, I suggest that it is not long enough.
As to precursors, I suggest these are compositions of matter, not necessarily, articles of manufacture. Most time courts do not make distinctions between the two. If push came to shove, I think the courts would make a distinction if a composition existed only momentarily, and could not be boxed and sold.
Your answer, as it were, 6, already speaks volumes.
You do not have an answer that you care to discuss, otherwise you would not have resorted to crudeness in the first place. Rather, you would have delighted to dazzle all with the integration of your scientific intellect with your legal acumen.
As it is, I believe that you have shown all that you are capable of showing.
“Your answer likewise is still a non-answer. Any time you descend to that level of crudeness, you have signaled that you really do not know how to discuss the subject – and for all your vaunted intelligence, you are surely aware that that level of crudeness is a clear indicator of not being able to intelligently discuss something, and is a clear indicator of just what the actual your intelligence level is.”
I told you, bow your insolent knee and I will consider not being so crude.
Ned Heller,
“However, I and the courts do not agree that things here only momentarily”
Why do you retreat to a term that you yourself have acknowledged as “not an apt term?” I will also point out that the courts have accepted momentary existence as enough (for example, in article of manufacture claims of chemical precursors). In the electronic arts as well, article of manufacture claims are accepted for systems of gate configurations that are momentary.
But this brings me back to the point that you still have not answered my questions.
How long is “momentary”? How long is “long enough? Your view that I am insisting on these terms as a philosophical point, rather than as a matter of statutory construction is baseless. I view this response as a mere smokescreen. I have asked you now more than once to give answers and defend those answers. It is not an appropriate answer for you to answer with the question I asked you.
It appears that you have no answers to give.
6,
Your answer likewise is still a non-answer. Any time you descend to that level of crudeness, you have signaled that you really do not know how to discuss the subject – and for all your vaunted intelligence, you are surely aware that that level of crudeness is a clear indicator of not being able to intelligently discuss something, and is a clear indicator of just what the actual your intelligence level is.
We are talking about articles of manufacture, not about machines, processes or compositions. A signal that is produced by a machine or by a process is not patentable, but the machine or process may be.
Your problem is your insistence on treating articles of manufacture in some sort of generic fashion such that anything made by man, however momentary, is an article of manufacture. However, I and the courts do not agree that things here only momentarily are articles of manufacture because they are not physically present long enough. It is a matter of statutory construction, not abstract philosophy.
Now I will agree that everything is transitory. So, if you have a more apt term to describe articles of manufacture, please suggest one.
“Do you consider “energy” an abstraction or something physical?”
“Energy” as such is neither. It is an ability.
But if you had to fit energy into one or the other then it is abstract. And it is abstract because it is simply what we make up to be able to describe the ability of physical objects to act on other physical objects.
Idk why you have some kind of hard on for everything in the world being classified as either physical or abstract. Because here there is no reason to pigeon hole everything in the universe.
“Do you consider electromagnetic radition an abstraction or something physical?”
Neither. The discussion is practically the same as “energy”.
“What exactly does “physical” entail? Is the term synonymous with corpereal, or does “physical” entail “actuality”?”
Who cares? This is you making up new questions, you will have to bow your knee as the student before I bother to expand our discussion.
“You appear to be selective in the tightness of words where it suits you, and overly broad with others where that suits you too”
I appear that way? Mo fo, people of ordinary skill “appear that way” to you.
Just because you’re an ignoramus doesn’t mean that I’m some kind of aberration.
“this is not an examiner’s discussion, as this is a discussion on the terms that I have set forth”
Lulz, oh, so you think you get to determine what the conversation is about? Typical lawlyer arrogance. Bow your knee as the ignorant student rather than the pretend master and I will consider discussing what you wish.
“You, like Ned, would do well to think before you answer.”
I would “do well” to ignore internet tards like yourself. Who, if they had any fcking education besides their liberal arts comp sci classes wouldn’t need to ask me these questions.
“Do you really think that something must have mass to be “physical”?”
I think that people of ordinary skill, judges and everyone else thinks it, and it makes sense to me, so yeah, I’m down. I also think that the only reason you’re trying to change the historical definitions is so that you can patent things like signals. I don’t find this a convincing reason to change the definitions.
Instead of asking me, why don’t you send a quick email to your old physics professor? If you had one that is lol. Which of course you didn’t, leading us to the present conundrum.
“Remember the context here is the abstract/non-abstract patent context.”
Um, no, the “patent context” extends beyond a simple determination of abstract/non-abstract. Look at what they were discussing in Nuijten. They did not state, to my knowledge, that signals or energy itself was considered “abstract”. And for good reason, they are neither physical or abstract.
“I suggest that you re read In re Alappat again to see just how tight a constraint is drawn around the term “abstract”.”
The CAFC’s alleged or real petty patent protectionist restraints of USSC doctrine do not concern me. At all. And they never will.
“And then when you consider In re Nuijten, consider tha the patent term of art “manufacture” includes those things changed by man to be in a different state – and yes, the property of energy changed to a different state can very well be a manufacture of man.”
Yeah, properties of energy may very well be. As I noted, throwing a ball is a physical action and may even be eligible. Likewise my slapping you with my pen is.
“Remember the context here is the abstract/non-abstract patent context. Remember that the answer does not depend on how one chooses to refer to the item – I am not at all discussing any such discussion of the abstract ideas of such so please stay focused on the actual questions I have asked.”
How about you STAY FOCUSED eh? Go ahead, tell us all specifically what you’re talking about. Tell us that you’re specifically talking about an ABILITY and nothing more. Please, be specific about what you’re talking about instead of trying to remain under cover of big words which you don’t understand the meaning of. Either that or focus on my pe nis slapping you in the face.
Either way, either you submit as the student or this conversation is over. I’ve explained everything to you in terms that one of skill in the art understands very well. If you are not up to snuff it isn’t up to me to bring you there.
Ned,
There are plenty of things that have value and can be sold that exist only momentarily. Chemical and electronic arts are replete with such examples.
And this is not even addressing why you have chosen the explicit time period that you have (question unanswered).
If you surrender the aspect of “transitory” as an apt term, you cannot then claim that term as a distinguishing factor. You surrendered it and it is gone.
I will also remind you that the patent right is not limited to those items that can be sold. The exclusionary right of a patent is negative – not positive. The act of selling simply is not a requirement that must be somehow met.
While the senses can verify the presence of the item, such is also not a requirement – and definitely not to the level that you are advocating here. Further, not all of the senses need be used to establish a presence, would you agree? Thus my question of “microscope”(question unanswered). Thus, to “hold” simply is not a requirement, and hence my question of the metaphorical “box” (question unanswered).
So, your answer immediately above does not answer my questions. Articles of manufacture may have attributes that fit your initial classification, but they need not.
Your answers, as little of it as provided, are insufficient.
More, because any article of manufacture would have these attributes.
How can one have the exclusive right to sell an article of manufacture if that article does not exist more than momentarily? How does one express in language the notion that an article of manufacture must be something you can hold, see, feel, touch, smell, taste and that exists long enough to sell.
Anon, your denseness is puzzling. If you think a machine that has no substantial utility is patentable subject matter, then I suggest you have another think coming.
If you think that the Supremes would hold that a method claim drawn to a mathematical algorithm is unpatentable, but then hold a computer programmed to execute the algorithm patentable, I think suggest you cannot understand the law. It is beyond your grasp.
As to two cases, not necessary Supreme Court cases, that held programmed machine patentable because of a disclosed use, look at Alappat and State Street Bank.
Why was Diehr patentable but Flook not? Use.
If one looks at these cases as a whole, what emerges more than anything else is that the use of the machine or the method is the key to patentability.
The problem I have with Benson is that the Supremes treat mathematics as laws of nature. (Certainly, a machine programmed to execute a mathematical algorithm is not abstract.) The simple retort is to observe that while laws of nature can be expressed mathematically, not all mathematical algorithms express laws of nature.
“ minimum half-life of one year, that you can observe under a microscope”
Why a one year time period?
Why a microscope?
How big of a box? Can the “box” be a metaphorical term?
Plato, a perfectly valid point. If transitory is not an adequate expression of describing something that has a minimum half-life of one year, that you can observe under a microscope, that you can put into a box and sell, then I will let you, the teacher to us of the physics of Isaac Newton and the philosophy of Plato, to coin the apt term.
But I do agree with you point. Transitory is not an apt term.
For all of your rather juvenile preaching 6, you still have not provided answers to my questions.
Do you want to try again?
Do you consider “energy” an abstraction or something physical?
Do you consider electromagnetic radition an abstraction or something physical?
What exactly does “physical” entail? Is the term synonymous with corpereal, or does “physical” entail “actuality”?
As for the language lessons 6, you display a woeful misunderstanding of the use of nouns as categories, as well as a misunderstanding of words such as “entail” and “includes”. You appear to be selective in the tightness of words where it suits you, and overly broad with others where that suits you too – but your inconsistency and your selectivness is your downfall – this is not an examiner’s discussion, as this is a discussion on the terms that I have set forth. You, like Ned, would do well to think before you answer.
Do you really think that something must have mass to be “physical”? Remember the context here is the abstract/non-abstract patent context. Remember that the answer does not depend on how one chooses to refer to the item – I am not at all discussing any such discussion of the abstract ideas of such so please stay focused on the actual questions I have asked.
I suggest that you re read In re Alappat again to see just how tight a constraint is drawn around the term “abstract”.
And then when you consider In re Nuijten, consider tha the patent term of art “manufacture” includes those things changed by man to be in a different state – and yes, the property of energy changed to a different state can very well be a manufacture of man.
Properties of your arm are not your arm t ard. Properties of your house are not your house t ard. Properties of my pen is slapping you across the face are not the same thing as my pe nis slapping you across the face t ard.
Finally, properties of energy are not energy. Properties of matter are not matter.
But since you’re probably a lawlt ard, let me put it to you this way.
A patent is not a patent holder. A piece of real estate is not a home owner.
Though that is a different type of property it should make the point clear enough to you.
In any event, come back to me when you have your physics degree. Perhaps then you will be worthy of licking my shoes on this topic.
“6 – you just admitted that which you previously denied.”
I never denied that PROPERTIES of energy could not have the term physical applied to them.
For instance, the TRANSFERENCE (A PROPERTY) of energy from my hand to a ball as I’m throwing it is a physical action.
Also for instance, the transference of energy from my hand taking hold of my pe nis and slapping you across the face is likewise a physical action.
link to nmsea.org
“It only pedantics to make the meaningless distinction – in the patent context – between properties of the one thing and the thing itself.”
Care to try again without your speech impediment?
And also, like my other soon to be admitted student, it will be helpful if you simply acknowledge that you are wholly ignorant on this issue and that you seek my tutelage. It will better help frame the tone of the discussion I believe. I might refrain from calling you re tarded, so often at any rate, if you simply admit such up front.
“Physical” may of course refer to the PROPERTIES of matter just as well PROPERTIES of energy.”
6 – you just admitted that which you previously denied.
It only pedantics to make the meaningless distinction – in the patent context – between properties of the one thing and the thing itself.
W
T
F
“According to 6, then, matter is not physical.”
I did not say that. “Physical” may of course refer to the PROPERTIES of matter just as well PROPERTIES of energy.
And this isn’t according to “6”, this is according to every physicist worth his salt and your physics professor. You might remember that goofy old fellow who kept giving you F’s every time you spouted your supposed understanding of what Einstein was saying.
Remember broskies you’re arguing with the kid that did better than you in Physics.
But should you need someone in a position of authority to spell it out for you:
link to webcache.googleusercontent.com
Yeah I remember you impersonating Einstein attempting to confuse equivalency with one thing actually being another.
You might want to run that one by your physics teacher before you make yourself out further a fool.
“The phrase physical may thus refer to the “properties” of matter and energy, though not to energy itself.”
Can with exactly the same degree of twist be:
The phrase physical may thus refer to the “properties” of matter and energy, though not to matter itself.
According to 6, then, matter is not physical.
His definition (and he’s the buying too)
Hey buddy, remember me?
I am going to let you in on a great big secret.
Energy is matter.
Method claims: See latest bilski memo (current one has factors to consider whether something is directed to an “abstract idea” whatever that actually is)
System claims: is a huge carp shoot because no one really knows what to do with them. Apparatus claims are suppose to define over the prior art according to their structure, and not their function unless 112, 6th is invoked. However, most software prosecutors just throw the method steps verbatim into the system claim and don’t invoke 112, 6th treatment which causes problems.
Medium Claims: no real 101 problems because of Beauregard except for mediums that can be signals because of in re nuijten. So according to the latest memo from director kappos you slap “non-transitory” in front of the word medium in the claim and then you’re fine. Whether a CD with software, which is fundamentally an an idea written in a specific language (and covered under copyright law), should be patentably distinct from another CD is another matter, but currently a Beauregard claim is standard in “software patents”.
^ Do you see what I told you? PTO incompetence.
“as a physical”
As “a” physical? “A” physical what? It is not “a” physical anything.
But in any case, the defs actually don’t. You think they do, because you are ignorant and cannot understand written language along with not understand what is fundamentally being discussed.
2. of or pertaining to that which is material: the physical universe; the physical sciences.
Energy is by no means “material”. If you are so unbelievably bad at language as to not understand why or ignorant of what energy is then you may read this post further so that you will understand what energy actually is. Once you know that, you may return to this issue and understand easily why you agree with me. Presuming you have even basic ability to understand language. Which, at this point, I’m not entirely sure that you do. But I’ll hold off judgement.
And in 3, where you might think you have a case, you really don’t, because of context and what is explicitly said.
3. noting or pertaining to the properties of matter and energy other than those peculiar to living
matter.
The phrase physical may thus refer to the “properties” of matter and energy, though not to energy itself.
I had hoped that you would be able to cipher this out on your own and not require my intervention, but alas, it appears you did require it.
To be sure, energy itself is nothing more than a made up construct for how we like to view the ABILITY of a physical system to do work upon another physical system. It is, therefore, naught but an “ability”. This is something which you must try to grasp, but probably never will absent extensive teaching in a physics classroom.
link to en.wikipedia.org
However, it will be difficult for someone who has not dealt extensively in physics to understand this as it is difficult to grasp fully even to folks going through training in such. I sure know it was to me and everyone else in my classes.
Indeed, it is fortunate that the Feds had sufficient guidance on the topic to rule properly in Nuijten.
“which includes physics which includes energy”
Just fyi, “physics” does not “include” energy. Just because they study energy and use it as a quantity of the ability of physical systems to act on other physical systems on occasion does not mean that the science itself is energy or has it as a part thereof.
“Yet you indicate an unwillingness to commit to energy being physical”
Indeed, because it is not.
That is your answer, no energy is not physical. However, as I have noted, there are ways to claim energy or electricity etc as something which is not abstract. You could likewise claim the actual physical systems at play in the specific situation at hand and thus have something physical in your claim.
Before I continue your free physics education it would be helpful to me if you would simply admit to being wholly ignorant of the subject and submit yourself as the student, uppity though you may be, just so that we are all aware of the relationship between us.
Ned Heller,
You only assume that I am not asking the right questions.
You seem to assume a lot of things on these blog pages. Like you assume that you know what the right answers are.
You assume much more than you should.
As for the “transitory” cannard, show me anything that you can put into a box, anything that you can sell that is not transitory – and I will show you that you have just not looked at a time scale large enough.
Instead of judging the sufficiency of my questions – try answering my questions.
Plato, ask the right questions, get the right answers.
Your question makes the assumption that the question of whether something is an article of manufacture depends solely on whether that something is physical. The answer to that question is not sufficient.
It has further to be something non transitory, something you can put under a microscope and observe, something you can put in a box and sell. It has to be a “thing.”
6,
Thank you for the attempt at an answer, but this falls short for several reasons.
Most importantly, you did not actually provide an answer.
You provide a definition in the alternative, yet both sides of that definition hold energy as a physical – either directly in 3 or indirectly in 2 (Definition 2 relates the the physical sciences, which includes physics which includes energy).
Yet you indicate an unwillingness to commit to energy being physical notwithstanding the definitions you provide. In fact, you come out and say it isn’t – yet your definitions say otherwise.
Then you indicate that whether energy is an abstraction depends on how you choose to refer to it.
This is a nonanswer. It is or it is not. It is what it is. It does not depend on how you refer to it.
So I offer you a second bit at the apple here.
Please give an answer and defend it. Your reference to a very old Supreme Court case without actually citing the case does not work for me. Likewise, merely saying you “feel” Nuijten was most proeprly decided does not work, because you have not yet shown you understand the actual issue here.
“Tell it to the Flook Court dawg.
I’m not going to have this discussion that was had 30 some years ago and settled quite easily by our courts.”
6, that’s because you can’t face the fact that the Court some 30 years ago cabined the Flook case with Diehr. And just some 12 months or so ago, reaffirmed in Bilski at paragraph 14 that Diehr still controls Flook, and Benson!
And that’s why whenever your nonsensical theories are challenged you have no case law, no examples based on case law, and not even any legal definitions to back up your rhetoric.
And that’s why, if you are a PE in real life you really need to be fired for your willful incompetence, lack of ethics, and scofflaw antics.
AI,
Chair of the Fire 6 Commission
Ned,
You really need to pick up the ball on your comments.
For system and article claims, what is this so called requirement of “disclosed statutory use”?
If you are drawing a conclusion from Benson (which by the way was a method claim case), wouldn’t any such doctrine by a judicial one, rather than statutory? If you really think this is statutory, which statutue would a system or article claim – on its face – violate?
It’s bad enough that there is a multitude of people who feel free to opine here without any grasp of the law, but sloppiness by lawyers just makes things here unintelligible.
From Bilski:
"
The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those inthe Industrial Age—for example, inventions grounded in aphysical 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 asto 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. 9–10.
In the course of applying the machine-or-transformationtest to emerging technologies, courts may pose questionsof such intricacy and refinement that they risk obscuringthe larger object of securing patents for valuable inventions without transgressing the public domain. The dissent by Judge Rader refers to some of these difficulties. 545 F. 3d, at 1015. As a result, in deciding whether previously unforeseen inventions qualify as patentable "process[es]," it may not make sense to require courts to confine themselves to asking the questions posed by the machineor-transformation test. Section 101’s terms suggest thatnew technologies may call for new inquiries. See
Benson, supra, at 71 (to "freeze process patents to old technologies,leaving no room for the revelations of the new, onrushingtechnology[,] . . . is not our purpose").
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 shouldnot receive patent protection. This Age puts the possibility of innovation in the hands of more people and raisesnew difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections fortheir inventions, the patent law faces a great challenge instriking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of generalprinciples. Nothing in this opinion should be read to takea position on where that balance ought to be struck.
Thanks.
It seem that if a statutory use is disclosed, system and article claims should be fine. The method claims would have t be limited to that use. If they are, they are fine.
Now the problem becomes, what is a statutory use? Simply solving a mathematical problem is not per Benson. This throws in to doubt a large number of what I think are serious inventions: inventions related to data compression, error correction and the like.
All non statutory. Numbers in and numbers out, unless limited to a specific phyiscal use.
Ned what is your basis for saying “Bilski recognized the value of inventions in mathematics”? That looks like a huge leap from reality to me (or maybe just very wishful thinking on your part).
700-719 all (I believe) deal with computers and generally are “software patents”. With software patents you generally see 3 independent claims (1 for the software method, 1 for the system running the method, and 1 for the software on a medium).
Regarding 101, who knows if they are actually patentable under 101 given Supreme Court precedent (Benson, Bilski, etc.). However during prosecution they’re treated as follows:
Method claims: See latest bilski memo (current one has factors to consider whether something is directed to an “abstract idea” whatever that actually is)
System claims: is a huge carp shoot because no one really knows what to do with them. Apparatus claims are suppose to define over the prior art according to their structure, and not their function unless 112, 6th is invoked. However, most software prosecutors just throw the method steps verbatim into the system claim and don’t invoke 112, 6th treatment which causes problems.
Medium Claims: no real 101 problems because of Beauregard except for mediums that can be signals because of in re nuijten. So according to the latest memo from director kappos you slap “non-transitory” in front of the word medium in the claim and then you’re fine. Whether a CD with software, which is fundamentally an an idea written in a specific language (and covered under copyright law), should be patentably distinct from another CD is another matter, but currently a Beauregard claim is standard in “software patents”.
Anon, you have just prooved that you are not a serious poster.
I regret having assumed otherwise.
Bye.
“a programmed computer without a specific use”
C’mon people – let’s raise the thinking being applied prior to posting here.
Ned – look at your statement and see the nonsense: You cannot have “programmed” without “specific use” because programming entails doing something for a specific use. Programming does not exist in a vacuum.
Come back when you understand the art that you are trying to talk about.
“piece of paper with a recipe”
Seriously?
Back to this crrp post material?
That was stale four years ago.
Review (once again) the printed matter doctine and all the pertinent exceptions to that doctrine to see that implemented software has a functional relationship and that is all that is needed.
Stop wasting your time and everyone else’s time with your pathological obsession with an argument that has been proven false time after time.
Software sitting by itself is one thing – software implemented on a machine is quite another.
“A piece of paper with a recipe on it is one thing – a piece of paper with a recipe on it that is read by robot chef is quite another.”
LOL.
Anon, I am now lost in your argument. I have lost track of what your point is. You seem to have something to say, but critically avoid the issue: specific use.
Regarding Benson and Alappat, what made the claims of Alappat patentable was the disclosed used of the “rasterizer” to smoothe displays.
We can digress all over the map on side issues if you choose, but nothing else really matters.
Now, I suggest that the holdings in Benson and Diehr are conistent. Nothing was dialed back. Diehr dialed back, if anything, broad and very unnecessary dicta in Flook, a case written by Stevens. By contrast, the Douglas opinion in Benson was concise and eloquent.
To date, no Supreme Court holding has ever gone so far as to even suggest that a programmed computer without a specific use is patentable.
Do you agree?
Lemley is dead on. The peanut gallery here is entirely too personally invested in the status quo to view his writing objectively.
One Box, then another, then another. And the very last box is a combination of all the Evil she has dealt with her whole life.
And together they play a terrible mind Game. They truly try to drive her to the brink of insanity. But She has IRON SIDES!
And when it gets going, she is forced into Bankruptcy so they can plan her demise.
She is kidnapped as a Baby. Her life reads like Cinderella with a twist. If there was will for 22 Porrazzo it was destroyed because of the Secret. And when there came a fight after Someone tried to kill me, I now realize she left with me because he was going to tell “Me” everything.
Just imagine not knowing who you are for almost 60 years. And almost 20 of those years you are being trespassed, maybe even more. Your Son knows. And instead of coming to you he gets in the Game.
Then you invent something. The People that are trespassing that Property find out who you are. They then decide hey if you tell her what we have done we will destroy your Secret!
I have just read the Lemley paper and find his “patent Racing” idea interesting.
Take trans-luminally delivered stents, for example. There are two types of this simple cylindrical cage (balloon-exapandable and self-expanding) but probably 100,000+ patents on stent strut matrix patterns. 40 years ago there were none, just a few doctors in places like Switzerland, who were mulling over how to un-block vascular stenoses. So why so many patents now?
40 years ago there was no patent racing in stents. Now there is. Stents save lives. I think some academic should look in to the stent field. First thing they might do, interview Daniel Thomas. Incidentally, is Dr Palmaz still around?
“Do you get why you come across as such a joke?”
Do you AI?
Just because I stopped responding to you under your normal name there is no reason for you to try to hide yourself.
“you need to stay anonymous for a very good reason, trust me.”
Great – another internet tough guy. E_ph you tough guy. Making threats over the internet is just another way of making yourself as low as possible, isn’t it? Don’t be such a know-it-all-but-don’t-know-anything poster and just watch my snide comments disappear.
“You rely too much on equivalency, methinks.”
You don’t understand equivalency, methinks – otherwise you would not make such ridiculous statements as you do – nowhere do I ever indicate that programming alone is sufficient – nice try at a strawman there. And no – you are wrong as to the necessary result of my argument – You sound just like other clowns on these boards who do not get the difference between patentable and patent eligible. A programmed machine can be a changed machine, but even a changed machine may not be “new” or “patentable” – but it surely is patent eligible.
As for distinguishing Benson – I don’t need to, in case you haven’t heard, Benson by itself is not good law (need I even remind you that Benson was written by that anti-patent lun_atic Douglas?). Besides which, you show your lun_acy even more by thinking that Benson’s holding was to actual hardware – read the decision again, O mighty internet tough guy. The Supreme Court decision did not address the physical circuits portion (and you say others dwell on dicta…). Benson was rejected on a process claim – not a machine claim. The rejection of Benson was not directed to a computer system, but to a process.
Not content with making mistakes about case law on methods, you then make a mistake on machines in Alappat. Again – you need to review just why Alappat was important – the distinction was that Alappat was claimed as a machine – the new use was dicta (and you say others dwell on dicta…).
That’s 0-2 on case law internet tough guy. And in one comment – that bar you set buried in China?
“The machine itself does not appear to have to recite a new use as does a process claim. All that is necessary is that the new use be disclosed.”
Smokescreen city – and completely wrong. A new disclosed use for a machine claim can still fail – do you know what inherency is? For these types of claims, disclosing a new use is vastly minor compared to the aspect of a new machine itself.
That’s why you are wrong.
“As to the equivalency between hardware, software or whateverware in solving mathematical problems – yet another strawman. The “solving of a mathematical problem” is not the focus of the equivalency. Are you being daft on purpose? The focus is that a new machine can be differentiated by its hardware, by its firmware or by its software. Software in this sense is not software on its own – this is a point that has been made crystal clear – even you should have picked up on this through your many previous conversations.
Listen Ned – try at least to get the basics right. Otherwise you just sound like some de_ranged threatening wind_bag.
Anon, you really are out there on this issue, suggesting that a programmed machine is patentable even if all it does is present and solve a mathematical problem, because that is the necessary result of your argument that a programmed machine is both "new" and "patentable" because of its program, without more.
Tell me then, just how you would distinguish the Benson claims? They were directed to a computer system employing a BCD algorithm. Were not its circuits reconfigured in the same way as were the Alappat circuits? If and they were not, I would
like to know why they were not. Clearly you cannot resort to sophistry and hand-waving to somehow say that, as a general proposition, a programmed computer is alway patentable as a new machine simply by changing its program. The programmed computer must do something new as well. The new use was critical the holding of Alappat. I quoted it.
The major difference between a machine claim and a process claim in this area of law appears in Alappat. The machine itself does not appear to have to recite a new use as does a process claim. All that is necessary is that the new use be disclosed.
As to the equivalency between hardware, software or whateverware in solving mathematical problems, I must ask you this: Would Benson have been decided differently if the computer it recited in the claims was limited to an analog computer? Would the result have been different if the specification disclosed specific circuits that converted BCD to binary when the claim itself simply recited the math? You rely too much on equivalency, methinks.
As to your snide comments about me personally, you need to stay anonymous for a very good reason, trust me.
Nathanial Willard?
Ned,
You simply do not have a good track record of parsing decisions and selecting the “most important” paragraphs for anyone’s consideration.
You have yet to show you even understand the basic equivalency of hardware to firmware to software. How is anyone even remotely familliar with this art field going to take what you say seriously (whether or not this is part of a continued discussion)?
Ned – the most critical was the change – pure and simple. Without the programming there was no change – pure and simple. The purpose while indeed important, simply was not the most critical.
“It was new, again, because of its new program” All you need to do is stop there and realize that you have just agreed with me.
All else you say is just smoke and mirrors, meaning nothing.
Ned,
That about says it all – you agreeing with the likes of 6 in response to the equivalency of hardware to firmware to software.
Are you purposefully trying to lower the expectation of your posts?
“Anon, the problem with your post is that you have stepped into a conversation we have been having for years here.”
I don’t care if I just stepped off of a cabbage truck – my points at 4:43 PM are correct and you are plain wack with your views of useful arts, Benson & Flook walk-back, business methods, and call for Congressional clarification for mathematical utility.
You need to post no matter who is the audiance – and you need to not ask questions as some kind of defense for your atrocious posts. It really is no defense to what you posted above how I view the Bilski claims. My view on those claims is not material to your wack statements.
Do you get why you come across as such a joke?
Obit?
Really? The program created new ALUs, new shifters, new ROMs, the elements the Feds state were the corresponding structure? Really? Do you really believe that? When an an ALU executes a math or logic instruction, it does not become a new ALU. The circuitry itself remains unchanged. The various math or logic operations are one of its capabilities. That existing capability is merely selected by an instruction. Nothing is new, physically. What's new is the program. But the stored program is part of the machine — a necessary part. For this reason as well, Beauregard claims are patentable as a component of a machine.
Now back to reality, please. As stated, a programmed digital computer is a new
machine because of its new program, not because any of its instruction fetch, instruction interpretation or instruction execution hardware is new. Anyone who knows anything about computers know this. In order for the programmed computer to be patentable, it must have a new utility tied to the program execution. If you do not believe this to be the case, say so. Then we will have a discussion about Benson.
And just in case you doubt the actual holding of Alappat, please read the holding of the case I posted elsewhere in this thread. It specifically states that the hardware is special, and includes ALUs, shifters and output ROMs. Not all GP computers may have this same hardware arranged in the same way. All the Feds were trying to show is that the claim was directed to a machine, which is one of the four categories. But we knew that already. The question was
how was this machine new? It was new, again, because of its new program. The new program causes the computer to operate in a new way. But the program itself is part of the machine.
But that did not end the discussion in Alappat. It continued to the fact that the machine calculated data for use in a display. The machine specifically smoothed the display by using anti-aliasing. This was the critical, the most critical aspect of the holding. If you do not agree, please say so.
Anon, the problem with your post is that you have stepped into a conversation we have been having for years here. We all know that Bilski did not go so far as to declare business method utility beyond the scope of patentable subject matter as argued by the Stevens minority, but that does not settle the matter does it?
The Bilski claims were declared abstract, but the reason they were declared abstract was not articulated. Was it because they claims were not limited to implementation on a digital computer or internet or something of that nature? Or was it because the claims did not call for a physical, as opposed to an abstract, use?
If you know the answer to this question, we would like to partake of your
knowledge.
34 Brookside Drive Siblings Peter and Catherine Mayock.Catherine 022 Sarah 022.
Ned,
Seriously, you are wack today – the programming of that GP machine was what changed the machine from a GP machine to a specific machine.
Software sitting by itself is one thing – software implemented on a machine is quite another. This was fundamental to Alallapat. If you don’t understand this, you need to sit down with someone who can explain this to you until you do unerstand it.
The programming was what changed the machine becuase a software change is equivalent to a hardware change.
Ned,
You are off is so many ways here I scarcely know where to begin…
Your notion of useful arts is as off as 6’s.
Benson and Flook have already been “walked back.” – See Bilski discussing Diehr.
See Bilski re discussing business methods (as noted already, such are within the useful arts).
Mathematical utility – without more is one of the Supreme Court noted exceptions. This is a consitutionally noted exception and Congress cannot legislate around that exception, so your call for clarification is quite unnecessary.
The quality of your posts such as this are well below even your low standard.
I think the Supreme Court in Bilski recognized the value of inventions in mathematics, such as improved encryption or compression, extraction of information from noisy signles, and so on and so on. If they could, I would be they would be willing to walk back their holdings in Benson and Flook, and state that the real problem with Bilski was its utility was in the realm of business, and that such utility is not the kind of utility within the useful arts.
But, mathematical utility is similarly not within the useful arts as such.
Since these inventions are valuable per se, and not limited to a specific application no matter how broadly stated, I think we should call for legislation to clarify their status.
“This is not a disembodied mathematical concept which may be characterized as an “abstract idea,” but rather a specific machine to produce a useful, concrete, and tangible result. <31 USPQ2d 1558>
”
Lulz, bad caselawl based on bad caselawl, I had forgotten about that little discovery during the Bilski discussions way back.
If you’re asking whether I would use 102/103 instead of 101 then no, I would likely use both art and eligibility. Especially if, as ned claims, whatever unstated hypo claim he’s thinking of is indeed indistinguishable on the facts from Benson.
The more I look into this and read the comments of the likes of Ware, I must agree with you.
Ware, just in case you did not understand my point, but I said “without more.”
Benson, Flook and Diehr all emphasized that a programed digital computer that only calculated a number that was not used for a useful purpose (which they did not define) is not patentable.
If you still contend that a computer is patentable by mere programming it such that it calculates a number more efficiently, then I suggest you are plainly wrong.
I quoted the holding in the next post. It supports the point I just made. The construed claims covered a specific machine, albeit a machine that performed mathematical functions in response to instructions, but nevertheless, not necessarily a GP digital computer.
Thus, their discussion of a GP digital computer programmed to perform the recited algorithm is dicta. You really have to understand that.
Ware: I am sure it is not your view of Alappat that a GP digital computer programmed to calculate a number is, without more, patentable?
To help you answer this question, I’ll give you the two most important paragraphs from the case for your consideration.
“Although many, or arguably even all,22 of the means elements recited in claim 15 represent circuitry elements that perform mathematical calculations, which is essentially true of all digital electrical circuits, the claimed invention as a whole is directed to a combination of interrelated elements which combine to form a machine for converting discrete waveform data samples into anti-aliased pixel illumination intensity data to be displayed on a display means.23 This is not a disembodied mathematical concept which may be characterized as an “abstract idea,” but rather a specific machine to produce a useful, concrete, and tangible result. <31 USPQ2d 1558>
The fact that the four claimed means elements function to transform one set of data to another through what may be viewed as a series of mathematical calculations does not alone justify a holding that the claim as a whole is directed to nonstatutory subject matter. See In re Iwahashi, 888 F.2d at 1375, 12 USPQ2d at 1911.24 Indeed, claim 15 as written is not “so abstract and sweeping” that it would “wholly pre-empt” the use of any apparatus employing the combination of mathematical calculations recited therein. See Benson, 409 U.S. at 68-72 (1972). Rather, claim 15 is limited to the use of a particularly claimed combination of elements performing the particularly claimed combination of calculations to transform, i.e., rasterize, digitized waveforms (data) into anti-aliased, pixel illumination data to produce a smooth waveform.”