- This week in patent law class: Left my students confused after discussing Benson, Flook, Chakrabarty, Diehr, and Bilski. I’m somewhat confused as well.
- Traditionally, a patentee could seek reissue to correct problematic claims if the problems were created “through error without any deceptive intention.” The new patent act eliminates the “
without any deceptive intention” limitation. What’s the impact?
-Dennis Crouch
The result should be given according to the things being cleared on reissue. If he prove himself right then the positive judgment should be given.
Dennis please note that the reply script is misfiring again.
Ned,
I think that you overstate your position somewhat (fair warning notice: I have not read the US brief, so I do not know if it is the US brief or Ned’s rendition that have the overstatements).
A patent does not have to result in a new physical result for 101 eligibility purposes.
Trying to hold so does not make sense, because you are implying that a first way IS patent eligible while a way that merely gets to that same result is not patent eligible. This is a classic conflation of 101 and 102/103, where the statutory application to “new” is appropriately placed. This also really does not get to the fact that the first way, the way that is not new, may or may not be it self patent eligible. Your concept just doesn’t fit.
I think the 102 mental step proposition is close, but still misses. I see somewhat of an equivalency with the Printed Matter Doctrine. If you recall, the printed matter must have some functional relationship to be eligible for patent impact. That functional relationship is NOT proscribed to be a modification of a physical step (recall that the apparatus claims in the hatband case and the glass container case did not in and of themselves modify a physical step, because there were no step elements in the apparatus claims (although such modifications of physical steps, when present in appropriate claims, would clearly qualify as patent eligible). The term “functional relationship” is purposely wide, just as the patent field is meant to be purposefully wide. I would agree with a restatement of your proposition that for 102 purposes, any mental step that is not functionally related to the rest of the claim is ignored.
Likewise, I think you overstate the 112 position, interestingly, where you state “functional relationship instead of “modify a physical step” (not sure just what inferences I should draw from your change in choice of words here). The 112 relationship may or may not be true. I can easily see where a 112 definiteness explanation or enablement can be met, but itself is somewhat meaningless (given the 102 restatement I provided).
Let us not forget that mental steps, of themselves have long enjoyed the ability to be included in patent claims and that there is not – nor should there be – any type of all or nothing – mental steps in or out doctrine. It does seem like there is at least here, a very vocal push for such a doctrine, and I do not see any legitimate point of law for such.
Max, you and I fundamentally agree at this point. I think the key remains a simple idea: If a mental step modifies a physical step to produce a new physical step, that new (mental + physical) step is, for the purposes of the patent law, physical as a general proposition.
This was well accepted law in the the US for quite some time. It seems it is the US position argued to the Supreme Court.
For 101 purposes, the claim as a whole must produce a new physical result.
For 102 purposes, any mental step that does not modify a physical step is ignored.
For 112 purposes, any mental step
that has no functional relation to a phsical step makes the claim indefinite.
All this comes down to abstractions. Read Newman’s dissent in Bilski.
Engineers are taught to work with abstractions. That is what I was taught with that word, abstraction. Pick the level of abstraction and work at it.
Claims should be evaluated on whether or not one skilled in the art can practice the invention. An inventor is entitled to the scope of the claims that are enabled.
It is really that simple. This abstraction business from the Bilski SCOTUS is nonsense. Not patent law and there is no fair way to apply it as it is not a real test. Read the Bilski dissent of Newman where she explains this very well.
“Fact check, cross check and gut check every time a false statement, misrepresentation and out right lie is posted by MM, Ned, 6 and the rest.”
After nearly 700 posts on two threads kicking the living shtt out of the anti-software patent crowd, and even after Prof. Crouch introduces yet another thread (this time with a cream puff 101 argument), the Shilling WILL continue.
It is guaranteed, in part because the good profesor himself is still “confused” – the only confusion is how to preserve “the agenda” after such a thorough b_ttkicking.
No wonder the courts look askew at the good Professor’s papers.
Ned introduces his “experience” as an attempt at legitimacy, not realizing that he tips his hand as to his Shilling source. As Vested notes, Ned has built an entire career on a false proposition, and cannot and will not face the simple truth that he is wrong.
I wonder why Ned never faced the challenge posted on the threads awhile back, the challenge by Ping I think between the two computers, one, programmed and one not programmed. For that matter, the good academic IANAE never faced that challenge either.
The “slippery” argument of a switch built to be switched ignores the fact that a machine designed to be changed simply is not the same thing as a changed machine. The hardware analogy of “circuits in parallel being simply different than circuits in series” applies, as the assemblage of switches being reconfigured simply cannot be the same as the assemblage prior to being reconfigured. Swithcing a switch indeed is making use of an existing tool – but switching a switch is quite different from whitch siwtches are switched – what the configuration that must happen to meet the patent claim is actually achieved.
The anology to molecules has been put forth previously – molecules have always had their atoms bind in the same manner – that is how molecules bind. IANAE’s logic would thus outlaw all pharm patents because there is actually no new binding mechanisms invented. Let me coin this the “Mischaracterizing Magic Microscope Game.” Dive down low enough with the Magic Microscope, pick out an event that occurs “because it is natural to occur (be it a switch designed to switch or a molecule that is designed to bind)” and wallah! No patent for you!
Ned keeps trying to point out the difference shows up in how the different machine operates, but keeps ignoring the fact that the prior-to-being-reconfigured machine simply cannot perform.
Having the capability of being changed is simply not enough from a fact standard and a legal standard to ignore what is really going on.
The games SHALL continue.
Can’t tell you that Ned but I’m still intrigued by your “Egg-boiling with altitude” hypo.
looking at:
A. Diehr (computing molding time)
B: English Halliburton (iteratively computing an optimal drill tip design)
C: Prometheus (computing a dosage regime)
D: Your egg-boiling time increment.
I distinguish C from A and B on the basis that only a machine intelligence can design the drill or cook the rubber but only a human intelligence can “re-calibrate” the dosage. Thus, A and B are fit to patent but C not.
D is different, in that you can do it in your head or use a computer.
The Prometheus protagonists urge that their invention is a new and non-obvious insight that has promoted the progress and so deserves protection. So too did Exxon at the EPO, with their motor fuel additive that reduced friction inside the engine. But the same fuel with the same additive was already known, with the additive in there to inhibit corrosion.
At the EPO, Exxon still got a patent, for the “use” of the additive for reducing friction.
Use claims thus meet the need to reward those who promote the progress. Malcolm thinks they are an abomination but they do serve a useful purpose (promoting the progress) and I am not aware of any problems with them in litigation that come anywhere near the level of mischief caused by the plague of “obscure parameter” claims that face us in ever-greater numbers.
I wonder if the key is in the word “insight”. If that’s as far as you’ve got, you haven’t yet gone far enough to be fit to file.
Okay so we can add Rader to your list of enemies, along with the truth, facts and law. Anyway, I am on break for a while so shill away! No need to censor the blog or add delete AI buttons. There are plenty of attorneys here to keep you in check and hold your feet to the fire. Though not any that work for me. I pay them too much money to fool with the likes of you.
Cheerio!
Anon: “And just as clearly, the direction given by the Supreme Court to the CAFC to rechart its position is clear. That recharted postion is also crystal clear.
As noted (and as notably avoided in this string), the case of Ultramercial clearly outlines the new position in law on patent eligible subject matter.
Clearly, the takeaways are – that 101 challenges should be few and far between, and that the wide open gate of 101 is what has been mandated both by the Constitution and by the governing laws as written by Congress; – that business methods and “software” patents are not categorically exlcuded and must be evaluated on their individual merits – exactly like any other patent eligible item; – that Alappat and its specific holdings that a programmed computer is structurally a new machine is binding law; that the equivalency of hardware-frimware-software is siimply undeniable, and thus software must be treated as a component in its own right.”
Well said, well said indeed. No one wants to address Ultramecial. 6 stumbled into it in the other thread and was quickly dusted up. Ned tried to use a Useful Arts argument and found himself in a dead end alley. They have nothing new to offer. I am going to take a break now as I have real patents to manage and patent applications to prosecute at the PTO.
But I encourage all to remain vigilant. Fact check, cross check and gut check every time a false statement, misrepresentation and out right lie is posted by MM, Ned, 6 and the rest.
Though there be much whaling and gnashing of teeth, keep shining the light on the anti patent crowd and slap them mightily in the face with the law!
Power to the 99%!!!
“My main line of work for 30 years has been in computers and computer architecture”
Thirty years of cluelessness.
No wonder Ned refuses to face facts.
Its a stunt to have two separate inventions? Isn’t there a special form to file for such cases at the PTO to prevent double patenting and all? I really don’t get your beef here IANAE.
AI, "Free to look the dead Emperor Giles Rich in the eye, and declare before the evil State Street Financial Empire:
My name is Maximus Nedimus Meridius, Commander of the Armies of the
West, General of theSilicon Valley Legions, loyal servant to the true Chief Justice, John Paul Stevens. Father to a murd ered invention, husband to a mur dered business, and I will have my vengeance, in this blog or the next!."
Make that that William O. Douglas instead of Stevens, and you have something there.
Cheers to you too AI. Perhaps you can play the role as well. Why not the evil troll Rader, acolyte of the usurper Rich, devious deceiver and plotter, and interpretor of the heretical papers.
IANAE, don’t worry. My main line of work for 30 years has been in computers and computer architecture. I worked for CDC on mainframe designs. I have worked extensively on microprocessor designs of all types.
The computer hardware does not change in response to program execution. Its machine state may. It inputs and outputs may. Thus, its OPERATION changes upon execution. But the underlying machine is unchanged.
Besides, and this is where the Sophists do not get it, a real machine claim is to a static, unchanging machine. It infringes upon making and upon sale. One does not have to operate the machine to make it infringe.
The fact that the novelty of a programmed machine is in the computer’s operation never seems to impact the thinking of the Sophists. A program is a sequence of instructions that execute. These instructions may fetch data. They may store data. They may add, subtract multiply or divide or execute logical operations on data. The program is a sequence of steps. The program itself may be fixed, but it is the operation of the program that is new and the real subject matter of the claim.
A program is no different in substance than a recipe written in a book. The cook or the chemist follows the sequence of steps to produce a new result. The book containing the recipe is not new because of the recipe. The utensils used in the execution of the recipe are not made new because of the recipe. The novelty is in the sequence of steps.
We often speak here of conflation. The Sophist conflates. They conflate the machine with the machine’s execution. They justify the machine claim by the operations performed by the machine in executing the program. This is Sophistry. Everyone knows it. They put on their dunce caps and rapidly move their magic wands; but still they cannot turn this frog into a prince.
Ned: “We really need an ignore function here to “delete” posters such as Anon, AI, Um No, etc.”
Wouldn’t it be nice if you and MM could just post to each other and not have anyone check you on the law, or challenge your personal theories with logic, fact, and reason?
Just think what a wonderful world it would be if everyone just capitulated to your views.
Why there would be a MOT requirement.
Business Methods would be ruled non patentable.
Diehr would stand for no more than the principles in Benson and Flook.
Claims as a whole would mean the same as dissecting claims.
AIA would eliminate all financial services and products as patentable subject matter.
Useful Arts would be limited to inventions from the iron age and their progeny.
Computers with software would not be patent eligible machines or machines at all.
All Steven’s dissents would have the same legal weight as the majority rulings.
Any dissents that agreed with the above would be controlling case law.
And in this empty coliseum of a blog, with only MM to applaud, you Ned Heller could take off your Shilling mask and finally be free!
Free to look the dead Emperor Giles Rich in the eye, and declare before the evil State Street Financial Empire:
My name is Maximus Nedimus Meridius, Commander of the Armies of the West, General of the Silicon Valley Legions, loyal servant to the true Chief Justice, John Paul Stevens. Father to a murd ered invention, husband to a mur dered business, and I will have my vengeance, in this blog or the next!
:: sounds of a single hand clappiing::
AI: “The prairie dog invention is a case in point. I should be able to get a patent on my process”
Thanks, AI. I knew we’d come to an agreement eventually. That’s exactly what I said at 9:34 AM.
AI: “It the new use that is the invention, not the machine, […] And then in a separate patent application I should be able to get a patent for the machine itself,”
If you’re trying to pull a stunt like that, you should at least put another sentence between those two statements so nobody notices.
Hmmm not sure why I am being taken to task or what for, as I agree with the points you made.
It seemed to me IANAE was arguing that if you used an old machine, the use or the machine itself was not patent eligible subject matter.
Both clearly are patent eligible subject matter.
And though unrelated to the task at hand IANAE has often made an argument against 100 (b). Since such would not confirm a MOT requirement.
100 ( b) remains an unacknowledged but painful thorn none the less in the sides of the likes of Ned and MM. They desperately want to see 101 limited to a requirement for machine implemented processes ( the machine performs the method steps) yet 100 ( b) clearly allows for processes to be patent eligible even if they are not tied to the machine or the machine itself is not running the process.
The prairie dog invention is a case in point. I should be able to get a patent on my process for sucking up those doggies regardless if the machine is moms old Hoover, or a street sweeper size behemoth with the power to suck those varmits up at record speeds.
It the new use that is the invention, not the machine, and not the vacuum process.
And then in a separate patent application I should be able to get a patent for the machine itself, even if it is just a gigantic vacuum cleaner.
As far “As Alappat holds (and the facts support), the programming actually does create a new machine. Just because the creation is at a level unseen by human eyes, does not mean the creation of a new machine has not taken place.”
Well of course! All Actual Inventors know this as fact. I mean just from logic it makes sense. If I add a new fangled tire part to my bicycle, it’s a new a machine as far as I am concerned.
In fact if I add any new part to any existing machine it becomes a new machine. Software when added to a existing computer is adding a new part to an existing machine, and thus the computer is a new machine.
IANAE,
You obviously have no clue as to what goes on in this art area.
Back to your tower.
Night, I am familiar with the cases going back to Story and the ice cutting machine. One cannot claim the function or operation of a machine. One can claim the machine. Once can claim a process. But not the operation of a machine.
Essentially these claims take the form of means for achieving a function or a result. The vices are twofold. If the specification discloses one machine for achieving the function or result and the claim claims all means or methods, the claim is not supported and further is indefinite.
If, however, the inventor has invented a new process, the process is independent of apparatus. It achieves a new result by a series of steps or acts.
The battle over claiming far beyond the invention disclosed is a never-ending one, but it is important. The issue here, therefor, is central. It is important. I take it seriously.
Claiming a programmed machine essentially is claiming a computer for performing the programmed functions. It claims the function of a machine, the programmed steps, but not as a process. As such, its claims are not limited to and cannot be limited to any particular use. They cover all uses, precisely what the law says one cannot do.
I can go on-and-on on this topic, and I have before. Rich, as you know, has been central to overturning all these well accepted doctrines. At least at the CCPA and Federal Circuit levels he was successful. But any time one of his doctrinal reversals reached/reaches the Supreme Court, he was/is/will be emphatically reversed. That is why I suggest his name will live on in infamy in patent law. He will not be considered its second founder.
Now consider what Benson actually said and consider whether the Supreme thought there was any difference between a method of programming a digital computer and a programmed digital computer. The difference was discussed in the case, but the Supreme Court gave no indication that their holding would have been affected by the distinction.
From Benson:
"A digital computer, as distinguished from an analog computer, operates on data expressed in digits, solving a problem by doing arithmetic as a person would do it by head and hand.[3]Some of the digits
are stored as components of the computer. Others are introduced into the computer in a form which it is designed to recognize. The computer operates then upon both new and previously stored data. The general-purpose computer is designed to perform operations under many different programs.
The representation of numbers may be in the form of a time series of electrical impulses, magnetized spots on the surface of tapes, drums, or discs, charged spots on cathode-ray tube screens, the presence or absence of punched holes on paper cards, or other devices. The method or program is a sequence of coded instructions for a digital computer.
<b>The patent sought is on a method of programming a general-purpose digital computer</b> to convert signals from binary-coded decimal form into pure binary form. A procedure for solving a given type of mathematical problem is known as an
"algorithm." The procedures set forth in the present claims are of that kind; that is to say, they are a generalized formulation for programs to solve mathematical problems of converting one form of numerical representation to another. From the generic formulation, programs may be developed as specific applications.
…
"It is said that we have before us a program for a digital computer but extend our holding to programs for analog computers. We have, however, made clear from the start that <b>we deal with a program only for digital computers.</b>
…
[And quoting the presidential commission]
"Uncertainty now exists as to whether the statute permits a valid patent to be granted on programs. <b>Direct attempts to patent programs have been rejected on the ground of nonstatutory subject matter. Indirect attempts to obtain patents and avoid the rejection, by drafting claims as a process, or a machine or components thereof programmed in a given manner, rather than as a program itself, have confused the issue further and should not be permitted."</b>
“Tell him MM sent you”
Apparently, someone has already made the introductions.
Gene’s response if fitting:
“Thanks for letting me know BD.
I have no idea who Malcolm Mooney is, but that it an example of the type of comment that would not be acceptable on IPWatchdog.
The fact that I engender such hxtred suggests I am doing a lot of things correct. The fact that this person feels the need to attack me personally rather than attack my positions speaks far more about him then me. The fact that Patently-O tolerates such a comments is curious. This is the type of mindless nonesense that makes intellectual dialogue on the Internet nearly impossible.
Cheers.
-Gene”
Broken Tags go away
End bold tag.
Ned,
I suggest some law school for you. If the part of Benson (Supreme Court) decision that is something you are depending on, but was not a part of the holding of the case, it is not a matter that the lower court overturned the Benson case.
Not every minutia out of a Supreme Court case is so binding.
You may want to review the Benson case again to see what the critical question was that was asked of the Supreme Court, what Their particular answer was to that explicit question, and then realize that anything more was fluff and is merely persuasive authority.
The current courts have spoken and provided holdings that you just don’t seem to want to take for what they are worth. I understand your renegade feelings, but please stop mischaracterizing law. It seems that your feelings ar running rampant over your rational thoughts.
Max, the Supreme Court cases are not confusing. They ban the patenting of abstract ideas, etc. When an algorithm is untethered to a specific use as was stated in the opening paragraph of Benson, it claims all uses and that is patenting the abstract idea.
It is that simple.
In direct conflict is the Rich line of authority that would hold a programmed computer patentable. That would effectively overturn Benson. In fact, In re Benson held that a programmed computer was patentable. That case was overturned. Alappat reinstated it.
No you tell me, just how Alappat is good law?
If everything is bold, then nothing is bold.
Ned, you might not be confused by SCOTUS caselaw but Dennis told us at the outset that he was. Was he being disingenuous or have you succeeded in this thread in disabusing him of his confusion.
As to UK and EPO, I rely on the entire body of caselaw in the two jurisdictions. For the EPO, to meet the eligibility criterion, you need only “technical character”. Prima facie, a business method as such lacks it but a business method claimed as implemented on a computer does have it.
The UK snorts that this distinction is intellectually dishonest. You (I imagine) would agree.
The UK has to be “intellectually honest” on eligibility because it lacks the strict obviousness filter that the EPO relies upon to recover from its apparent laxity on eligibility.
STILL no answers to this question!
A multi-hundred comment thread, and a new thread along the same 101 lines – and yet, the removal of ethical constraints merits no discussion, no comments…?
Does anyone else find this alarming?
Ah, the not-unexpected fallacious arguments of IANAE.
I do not miss your style of postings, as slippery as they are.
I do not have to argue merely as you suggest. I only have to argue (correctly) that my changes have created a new machine. (the otherwise let me know has already been let known – please see Ultramercial and please feel free to comment upon that – as I have repeatedly beckoned). [Game noted and avoided]
It is a simple (and elegant) argument that avoids the briar patch that you beckon with.
But thank you for the compliment of commitment – no matter how much of a non sequitur it may be, it is polite of you.
Let’s pretend that we have already taken this line of discussion to the same place that has occurred in the past and realize that your sophistry will not avail you. That way we both can save time and maybe focus on moving an actual discussion forward. I do not think I will convince you to change your ways, and I know your sophistry will not convince me to change mine.
You say it is a different view anon, but really my view was formed speaking with some of the top people in the field regarding 101.
And, I think if you give it a try on, you’ll see it reduces all these issues into a modern conceptual framework.
Ned, I really don’t get why you are so hung up on the process vs. machine business. Re-read Deener and re-read the line of cases for why a method of a machine is needed. A can be build to carry out the software that is special purpose to that particular method. You then have a machine sitting there just like the blowers in Deener that can carry out the method. I just don’t see a difference between Deener and infromation processing. The represented information are the grains of wheat.
Benson is a monster. What is math? What is a natural law? What are these things but fabrications in your head. They are informatin processing methods and machines that we use to understand the world. That’s it my friend. All of it is artificial artifice and if you recognize that then you see it is all a matter of saying I think this part of your machine is too valuable to allow you a patent, which was exactly the issue in Walker.
Ned,
Take note of how MaxDrei has positioned his argument.
He makes no (well almost no – we will get to this point) fallacious points as foundational elements that are easily knocked away, and thus a discussion can proceed.
MaxDrei, a qualm I have – and this is more from a lack of understanding on my part on the history and current state of UK/EPO law, is how the current UK decision (that was brought up and discussed on another recent thread) fits into the notion of 101/103 conflation. That is decidedly not the holding that I derived from the UK positon, rather – the holding I obtained was very much in line with a separation of 101 and 103 and a confirmation of the more US stance of a wide open 101.
The only other qualm is to watch for your tendency to slip from US Law to non-US law and conflate the two. You seem to be well holding that difference so far.
Otherwise, I am in concurrence with you that the only lack of clarity is the unknown that the future brings (isn’t this always the case?). The existing stance and history of the Supreme Court is very clear. The existing stance of what the law is today is very clear.
It becomes unclear only for those who want it unclear, for those who want it to be something it is not – the obfuscators, the dust kickers, the blatant l_iars about facts and court holdings.
Max, Bilksi killed off the Rich business-methods-R-fine era in the US. Prometheus is about to kill off the Rader mini rebellion against the MOT.
Alappat remains, but it is in conflict with Benson. It too will fall. Give it time.
All is well here in the US.
The people who cling to Alappat are what some have described as bitter clingers to an orthodoxy that has had its day, Gone with the Wind, so to speak.
“adding the additional memory and adding the additional processin gcability and adding the additional programming is clearly changing the machine.”
LOL, I have to admire your commitment.
Yes, if you find a new way to improve the processing or memory scalability of the machine, go ahead and claim the machine.
Otherwise, please let me know when you’re before the Federal Circuit, arguing that your software is patentable under Alappat as a newly-configured computer because it happens to require more RAM than your computer came with (but not more than your computer was built to support). I would love to see that. It’s an even funnier argument than “a human brain wouldn’t be able to do it fast enough”.
Just one final observation. If a programmed computer can be patented as a new machine, Benson is overruled.
And the entire “Turing-complete” philosphy is deliberately obtuse because adding the additional memory and adding the additional processin gcability and adding the additional programming is clearly changing the machine. There simply is no way around the fact that a new machine results from adding programming that configures a machine. To attempt to hold otherwise must be exposed for the chicanery that it is.
The fact that a machine is built to be changed in no way captures the fact of just how that machine may be changed. Those future changes deserve their own recognition, their own right to be patented every much as any other set of building blocks. “Deliberately obtuse,” – yes that is a good label for the anti-software patent crowd.
Can you truthfully say that the physical machine is unchanged if someone decide to change the physical cicuits and make some of the parallel physical circuits into a different configuration of parallel and in series circuits and add/subtract to the circuits not in use, make some of the in series cicutis into a different configuration of in series and parallel circuits and add/substract to the circuits not in use?
I can truthfully say that.
Maybe you’ve never seen inside a computer before. The changes you’re talking about are little transistor switches built into the machine, that are designed to be turned on and off. They’re put in at the factory on purpose, so that the machine can be “reconfigured” in pretty much whatever way you like. For the purpose of data processing. Turning them on or off doesn’t make a new machine, it’s making the machine do one of the things it was designed to do in the first place.
Spend the day at the beach. You get a tan. That’s a physical and chemical change. Are you a whole new person? Of course not. You were always a person configured to respond to sunlight in that way. It’s not even a “new” use, really. It’s a functionality that was always built in, from the moment you popped out of the factory.
Let me correct the both of you (again – although NWPA is not addressing this point in his attempt to address a different angle of the 101 debate):
“You absolutely acknowledge the basic proposition that the programmed machine is operating differently. ”
The programmed machine is operating differently because it is different. In order to reach the point of enabling the process being discussed by NWPA (whose viewpoint onthe issue must be recognized for what it is a – a different view), the machine must be changed. To hold otherwise is to contravene fact and law based on that fact.
Let’s keep things straight (and honest).
Reverting to the subject of the thread, Dennis’s confusion, I’m sceptical that there need be any, really.
It reminds me of the situation in Europe, on patent-eligibility of mental acts and programs for computers. Under pressure from the UK, the British EPO President, Alison Brimelow, asked the EPO Enlarged Board of Appeal to resolve a contradiction in the software caselaw of the EPO Boards of Appeal. Back came the answer “There is no contradiction, just a progression in the caselaw, as technology evolves”.
I think neutral observers can discern just such a progression in the caselaw of the US Supreme Court. The issue for you is whether one can predict what SCOTUS would decide, if ever your claim were to be up in front of it. People lament that Bilski provides no guidance, but even a 5:4 split is a powerful indicator of what would happen to subject matter that is outside the consensus envelope of what is today eligible and patentable.
What I’m impatient to learn is how SCOTUS will divide up issuability, between eligibility under 101 and patentability under 103. Will its method be closer to the EPO solution(favoured by Rader CJ) or to the UK approach echoed here by MM.
Recalling something in a decision – where was it – about business method subject matter needing to be technologically inventive, I would put it another way. If eligible subject matter is technologically obvious, but in some other way (financially, commercially, sociologically, psychologically) ingenious, will this category of ingenuity be enough to get it through to issue despite its being obvious technologically.
In keen anticipation of the next SCOTUS Decision….
“The machine itself is unchanged.”
Simply and completely, WRONG.
This is a fact.
This is a law.
Ned, you are guilty of misstating both when you posit such.
You MUST be clear on this. The only sophistry involved here is in the attempts to make this fact and the law based on this fact something that it is not.
In order to help you bridge your understanding, try to think of a box of physical circuits; some set to be in parallel, some set to be in series, some not even set at all. The machine is the box. Can you truthfully say that the physical machine is unchanged if someone decide to change the physical cicuits and make some of the parallel physical circuits into a different configuration of parallel and in series circuits and add/subtract to the circuits not in use, make some of the in series cicutis into a different configuration of in series and parallel circuits and add/substract to the circuits not in use?
Ultramercial is clear: the equivalency of software to firmware to hardware is a FACT. The point you strive for in direct contradiction is a point you simply will not be able to own.
No matter how many times you state otherwise Ned, your statements must be recognized as l_ies and distortions.
I urge you for your own sake to recognize this and to adapt your pooicy stance to an appropriate view of actual facts and current law.
I urge you to stop the games.
“Doing something different.”
You constantly say this or its variant. Again and again and again. You absolutely acknowledge the basic proposition that the programmed machine is operating differently.
When you say that information is being transformed, you describe an operation. It is a sequence of steps or acts that take an input, transform it and provide an output. This is an operation. It is a process.
You say it again and again and again and again and again and again and again and again and again. But you refuse to recognize what you are saying. Think about what you’re saying the next time you say it.
“Almost all machines can be configured to operate differently. All.‘
Nearly all molecules can be configured to operate differntly.
Nearly all chemicals can be configured to operate differently.
Nearly all mechanical devices can be configured to operare differently.
Nearly all ANYTHING PATENT ELIGIBLE can be configured to operate differently.
Your point here FAILS.
This is not that difficult. The fact is that all of this is made up in your head. There is a machine sitting over there that is doing something useful. And you come along and say that machine cannot be patented as I say it is abstract and a law of nature. And, the other thing you are saying is because I could transform your machien into software plus a general purpose computer I will not give a patent. (And, again under this rule all ee patents go away.)
All of that is in your head. It boils down to saying, we do not want to allow such a broad claim because what you have is so valuable. OK. That is a discussion we could have when to apply that standard. And as I said information processing does not have the same characteristics as the methods in Walker.
It is that simple. The rest of this is nonsense fabricated by policy based people who were educated prior to the modern information revolution.
And, Dennis, if you or your students are confused the whole ball of wax is right in this one post.
“Wait!!! So are you saying if I use a machine, that is pretty much a vacum cleaner to suck prairie dogs out of their holes, I can’t get a patent on that?”
Not a valid patent, no. You might get a claim to the method, unless a prairie dog is an obvious modification of the prior art dust bunny.
“The fallacy of the Turing-complete situationshould also be highlighted, as Turing-complete – in its true sense – can never happen – infinite time and infinite tape can never happen.”
Now you’re being deliberately obtuse.
Obviously infinite time and tape can never happen, but you can add as much memory to a garden variety computer as you would ever need, and you’d be amazed at how fast you can cram data through a processor or twelve. Even theoretical Turing machines can’t run on truly infinite tape, because halting is kind of a big deal.
The term you’re looking for is “finite but unbounded”, which is math speak for “as much as you could ever dream of needing”, and which can actually be done in this context.
I think the problem is Ned that you do not understand that what you term math and applied math are both just these things that your brain has made up. At the end of the day any method that transform information is not a math in the sense you mean because the sense of math you hold is illusionary. The only issue is whether to prevent someone from claiming an information processing method because it is so valuable. That is the only issue. I wish you would grow a bit in your understanding of these matters.
Also, in terms of particular machine. Look, again this is a conceptional problem on your part. The general purpose computer is simulating other machines. That is what it is doign. That is irrutable fact. That is how Johnny von Neumann thought of it. One can always build a special purpose machine to run these information processing methods. The problem you are having is that the operations and details are so small physically that you cannot deal with them conceptually.
Sorry, Ned, but the reality is that either you are a troll or you need to grow and learn to understand these issues. New technology is not meant to be rammed into old conceptual frameworks. The conceptual frameworks must grow.
You never did answer me about the ee patents all going away under your framework. Ok, so your not Richard Stern. But I’ll bet that you have drank his cool aid regarding 101. Your arguments are very similar to his, and I get the same headache when I read your posts as when I used to argue with him.
Well if you count Slavery as trickery.. where in there own people sold them out.. Then it must be Slavery.
But in the real world Slavery needs to be defined by a Contract that is valid, notarized, dated correctly, and not forged.
And lets not forget the premise where they claim the voided Contracted person is so valuable LOON must mean something else. Who would Box a LOON?
“Configured to.” That is the question. Whether the machine configured to “operate” differently is a different machine.
Almost all machines can be configured to operate differently. All. Can we repatent every machine with a new configuration? No. Once this was clearly understood, but not anymore.
“Configured to” can be the equivalent of for “means for” to define new structure. But, in truth, the Sophists use “configured to” when software is involved solely in the sense that the machine is configured to operate differently. The machine itself is unchanged.
That said, the machine, configured to operate differently, can be claimed as a process if the operation is inventive. But, we all know the reason the Sophist avoid claiming software inventions this way. The law is clear that the process claims must define a new, real world result. The Sophist avoids this by claiming the “configured to” machine as a new machine, thereby avoiding the requirement of a new result.
So what are the real world consequences of claiming software in the form of a programmed machine not tied to a specific application? The answer is quite simple. Without limiting the claim to a particular use, all uses are claimed. This is in effect patenting the software per se, patenting mathematics per se, patenting abstract ideas per se. This is the truth. And everybody knows It.
The Sophists had Judge Rich in their back pocket. They have Judge Rader in their back pocket. They have the Patent Office in their back pocket. But they do not have the Supreme Court in their back pocket.
We will call it as we see it. The advocates of re-patenting the computer every time it is programmed to do something new are Sophists and they know it.
Actual Inventor,
I will take you to task for falling prey to the sophistry of those wishing to mistate law and facts:
“After all I am pretty sure the machine is still pretty much doing what it was always capable of.”
Am unprogrammed machine is not capable of doing what a programmed machine is capable of doing. It must be programmed in order to be capable. Thus there is a new capability gained.
You have fallen to the “House Fallacy.” What a computer is actually capable of is being changed in a way that is far faster. It is this ability to be changed that is present in a machine (and the fact this ability remains even after successive changes should be kept in mind).
The fallacy of the Turing-complete situationshould also be highlighted, as Turing-complete – in its true sense – can never happen – infinite time and infinite tape can never happen. By fact and by law the ideals pushed by the anti-software patent crowd in their “turing-complete” agendas simply fall flat and that obfuscating argument is better left for its own multi-hundred comment thread.
As Alappat holds (and the facts support), the programming actually does create a new machine. Just because the creation is at a level unseen by human eyes, does not mean the creation of a new machine has not taken place. It has. This is a fact. This is the law.
Note: Fair Warning – this comment is on target for the actual thread content as posted by Dennis and is not meant to be a enjoined in any derailment of mistatements of current law. As such it very well may be the target of those who wish to obfuscate what the law actually holds today.
I am surprised that Dennis has not identified the political and philosphical battle evident in the string of cases on patent eligible subject matter.
From an academic standpoint, the fallacy of the highest court of the United Stated being above any such political and philosphical influences can be readily noted in this string of Patent cases (the accusation of the court members that the other side is engaging in unwarranted judicial activism is quite evident in the 5-4 partisan bickerings). The position that Stevens takes is ideal for such a discussion.
Originally slated to write the majority opinion in Bilski, his detailed “concurrence” (and actual dissent, given the 180 degreee difference from the actual majority position) is a manifesto of a philosophically driven desired outcome.
Charting Steven’s views and their positional movement from Majority to Minority provides a clear and unmistakable view of just what the law holds as patent eligible subject matter.
And just as clearly, the direction given by the Supreme Court to the CAFC to rechart its position is clear. That recharted postion is also crystal clear.
As noted (and as notably avoided in this string), the case of Ultramercial clearly outlines the new position in law on patent eligible subject matter.
Clearly, the takeaways are – that 101 challenges should be few and far between, and that the wide open gate of 101 is what has been mandated both by the Constitution and by the governing laws as written by Congress; – that business methods and “software” patents are not categorically exlcuded and must be evaluated on their individual merits – exactly like any other patent eligible item; – that Alappat and its specific holdings that a programmed computer is structurally a new machine is binding law; that the equivalency of hardware-frimware-software is siimply undeniable, and thus software must be treated as a component in its own right.
The 101 issue is difficult only when you close your eyes to what must be. When you open your eyes, it is amazing how clear the picture is.
It can be captured in a single word: Scoreboard.
As the thread has breached the 200 comment level, the “reply” strings have predictably started up again.
Dennis please note.
“But constant misrepresentation and misunderstanding is quite another.”
Game spotted: Accuse the other of your own behavior.
Game spotted: Delete those that point out the weaknesses in your position.
C’mon Ned, you can be better than this.
I am still hopeful that Ned will realize that actually addressing the questions can advance his agenda.
I am still hopeful that Ned will realize that leaving the questions unanswered leaves the backdoor open to the defense of his kingdom.
I am still hopeful that Ned will realize that he can actually and objectively evaluate everything before him and be in a better position to advocate the policy changes that he desires.
I am still hopeful that Ned will realize that trying to change law by misrepresenting that law only works to Ned’s detriment. Postulating facts that have not been accepted (notably on this topic, the holding in Alappat that we have discussed almost civilly on other threads) only leads to an unsustainable position, as those false facts and errant positions of law cannot sustain scrutiny.
I get that Ned wants a different outcome. I get that Ned believes the law should be different. But Ned, as an advocate, needs to be abale to objectively survey the law and facts of the situation. Ned needs to recognize that others recognize the games he plays and he needs to stop those games.
Yes, I have been polite and positive to Ned. Yes, I have been obstinate about getting answers.
Obviously to the Ogres that inhabit this site, this behavour “infringes” on their domain and they are unhappy about it.
However, only Ned has advanced olive branches. And while I do not accept olive branches with the condition that foundations of discussion not be explored further (the answers must still be forthcoming), only Ned seems to actually want to move forward. When Ned realizes that the discussion he wants to engage in must include the law as it actually is and the facts as they actually are, he will be able to put his policy-driven changes in a proper context of a desired new state of law. When he realizes that he must frame his position appropriately, then that position will not be so attacked. When he realizes that he must approach his desired outcome in a different manner, he will realize just how ineffective the games he plays have been (and there is no doubt he learned this sophistry from Malcolm).
As for Malcolm and his meltdown, that is one huge “WAAHHHH WAAAHHHHHHH you are picking on me” pile of c_rrp, best shoveled off into the hovel from whence it came.
Slavery…?
Really?
And the connection is…?
Or are you advocating anarchy and the acceptance of no laws?
Or just the acceptance of laws you like?
Please grab your bucket of popcorn and enlighten us.
“Software makes a machine operate differently. Operate. That is the key word. The machine is not new. The operation is. This is simple and self evident. Can we move on?”
No.
Software mackes a machine operate differently because the machine IS different.
Accept alappat and then we could move on.
This is Ned’s offer to move on withot critically looking at his postion once more. A position that has been rocked. A position that has been questioned with no answers forthcoming. The only thing wanted is to “move on” – but to move on with Ned’s incorrect foundation still in play.
The answer Ned, is no.
There are simply those who do not accept your version of reality and know, KNOW, the correct way to view the law, based on actual facts.
The machine is different when “configured to.” That is why it can then operate differently.
We can move on when you stop misstating the facts. We can move on when you stop misstating the law.
NOW PING,
I am about to find out what was soooooooo scary.. was it Gloucester, The two October Letters, The Hog, UT, The three now count em three Logs? The Trade Secret? Or was it the Secret of who I am and what they have been doing with it? Could it be the Trademark? Could it be the Copy Rights,the Coast Guard? The forgeries, the embezzlement, or how about extortion? The Lawyer and the bankruptcy… who is on that bankruptcy? How about all of the above… ?
Again and again in this and other threads one sees confusion between a machine and the use of a machine, between math and the use of math to produce a new result.
Because of this, we tend to talk past one another. A good example is my conversation with Night. I agree with him that applied math is patentable. But he never seemed to understand that. Never. The only explanation I have for that is this constant confusion.
Software makes a machine operate differently. Operate. That is the key word. The machine is not new. The operation is. This is simple and self evident. Can we move on?
Amen.
I have stopped talking with Anon, among others, because of their constant distortions. Stubbornness is one thing. Occasional misunderstanding is understandable. But constant misrepresentation and misunderstanding is quite another.
We really need an ignore function here to “delete” posters such as Anon, AI, Um No, etc.
MM Nice try, AI.
That was not me. lol
Though I did get a chuckle out of it. 🙂
IANAE: “Thing is, when your process runs on machines from ten years ago (or would if they were only faster), and when the prior art machine is Turing-complete, it’s pretty difficult to make a convincing case that you’re not just using an old machine to do something it was always capable of doing.”
Wait!!! So are you saying if I use a machine, that is pretty much a vacum cleaner to suck prairie dogs out of their holes, I can’t get a patent on that?
After all I am pretty sure the machine is still pretty much doing what it was always capable of.
“What’s your point, AI?”
Processes that are so called (Business methods) and Information processing are within “The Useful Arts” and therefore are Constittional.
Of course I would be glad to elaborate. But warn your buddy Nedo first to cover his eyes because for him this can get very scary.
NWPA: “Ned are you Richard Stern? You certainly remind me of him.”
On behalf of Ned I would like to request that you please don’t bring up Stern. That will remind Ned that he once championed Sterns “Useful” Arts theory. And that is the one discussion Ned never wants to take place again. Thus he face humiliation and the total defeat of his agenda.
Oh I am sorry for leaving you out MM. You of course would be their father,….. or mother.
Why? Because anon asked you a question?
Anon just so happens to be the only one left in this patent community that won’t deride and insult you.
Anon has been polite and positive giving you the benefit of the doubt and trying to get you to post on the issues so you can advance your arguments.
Now you turn on anon simply because a fact was pointed out that there is a growing list of questions you refused to answer during debate?
How shallow and immature of you Ned.
You can’t expect anyone to take you serious with this kind of behavior.
Don’t get too excited. Ned is terrified of the Constitutional question. He will never step into that ring again. So it remains an irrefutable FACT that business methods are within the “Useful Arts” and there is not a dang thing Ned can say about it. 😉
Don’t get too excited. Ned is terrified of the Constitutional question. He will never step into that ring again. So it remains and irrefutable FACT that business methods are within the “Useful Arts” and there is not a dang thing Ned can say about. 😉
“Unless of course that one makes the constituion argument, but that does not appear to fly since the SCOTUS had Bilski in front of it and did not so rule.”
Yes this is correct and the SCOTUS had the Stern Brief and completely ignored it. Business methods, like software is within the useful arts and no one can refute that or will dare try.
Ned tried once and was quickly shot down. Now if anyone brings up useful arts he goes into a fit like Curly on the Three Stooges.
That debate is over.
It’s the famous but rare “I proved you wrong. There I proved it again, there I proved it again 7 tmes now” Malcolm Magic Trick!
What points do I get for spotting it?
MM,
You have become unhinged. Your comment is unintelligible.
Yes, but did you see the fight that the Stevens put up?
It must have irked him so to lose the majority opinion and be relegated to back to back losses on patentable subject matter, after so hoping to pull out another Bensonesque debacle.
At least he writes long dissents.
Actually, you know for some reason this reminds me of one of my first serious exposures to Lisp. There was a guru there helping get
ZZZZZZZZZZZzzzzzzzz.
Actual Inventard mental thought processes do change the brain’s shape, ( a body part) and therefore are physical acts
What’s your point? Is your point that the Supreme Court is wrong when they note that processes carried out mentally are not eligible for patenting? Or is your point that the correct use of the machine-or-transformation test requires a finding that processes carried out in the mind are patent eligible (and therefore the Supreme Court is wrong when they state that processes carried out mentally aren’t eligible)?
What’s your point, AI?
You’ve been harping for years why we all must listen to the Supreme Court’s majestic holding in Diehr (at least, the holding you imagine). So explain to us now why we must ignore the Supreme Court when they tell us that processes carried out mentally are not patent eligible.
Either at, or explain to us what your point is.
[grabs bowl of popcorn]
I’m looking forward to your response, AI. I’m predicting it will be the usual worthless collection of irrelevant crxp, dxst-kicking and ad hominems. But go ahead and surprise me with something coherent and intelligent. Maybe you’ll even impress your imaginary friends “Les” and “anon” and Shilly Willy who somehow are never there to defend your typically defenseless swill but are always there to join you in the ad hominem pxss contest.
“whether the law is on my side or not is completely irrelevant to you.”
Sorry Malcolm, the law being completely irrelevant is your domain. You even have this branded in the “whatever” conflation game you like to play.
Anon may be persistent, but his persistence is not in the games you and the Evil One play.
And as for blog trolls, that term also suits you and your sister in arms better, as you act like Trolls, being offensive and trying to scare away those that point out your weaknesses.
So your comments accusing Anon of what you do are readily seen as fallacious. As Anon points out, one of your favorite games is the Accuse Game, and we see it here in this comment.
Didn’t Doctor Freud provide a prognosis of you awhile back? Anyone have that link?
Anon has also stated that only 6 has been banned. MaxDrei and IANAE had their games quashed and left of their own accord and you and Ned were graciously invited to see how long your hijinks would be tolerated. That’s quite a different story than your “evidently, banned immediately” story. And it’s not “disagreement” that is banned, but rather “intellectually dishonest” games (like the Mischaracterization Game.) And just like the one you just attempted to foist.
So MM, playing loose with facts and with theory gets you nowhere. That’s the problem with trying to play your games on a law blog – there are bound to be people who will see through your ogre-ish ways and will toy with you or simply smack you down.
You really aren’t all that clever, and most of the time, you are not even worth the while to engage – but you seem to think that your shotgun posting of the similar comment like what 4 or 5 times throughout this thread may escape attention. I claim this little corner of the blog to sweep you into the trashcan that you belong.
“Yes, a general purpose computer is a specific machine,”
It just amazes me that anyone would ask such a question!
This is not even does the earth revolve around the sun type question.
It’s common sense!
Is a washing machine a specific machine?
Is a sewing machine a specific machine?
Of course! Ask 100 people on the street and 99.9% will say yes!
Oh and the rest that say no, have Neds DNA and 6’s IQ
“For AI to be such an ignoramus and fool, you sure are having a hard time putting together any cogent legal argument with substance to ovecome his point of view.”
Ned will never EVER broach this subject and we all know why.
I dare say “Useful Arts” will become Neds version of running up the hill like MM did from NAL and the Printed Matter Doctrine.
“Strong argument? It was not me who insisted that abstract processes can be patented. You did that, even after both MM and I asked you for confirmation.”
Oh this rich! Coming from the King of confirmation non compliance!!
Ned, how many times have you been asked to confirm that
There is a MOT requirement?
Business Method exception?
Technology requirement?
Mental Steps Doctrine?
Useful Arts Definition that excludes processes for business or software?
and not answered anyone?!?!?!?!
Ned, how many time have you been asked to confirm
Biski 11?
Biski 14?
AIA?
Diehr CAT and more and just &&%**^^ed everyone off???
You are the height of obnoxious hypocrisy!
“If someone invents a new, useful and non-obvious thought process, why shouldn’t it be patentable? Sounds like a new use of an old machine (une noggin)to me (see 35 USC 100).”
Anyone with even a basic course in Neuro Science or even Cognitive Psyche knows PET scans and other brain imaging technologies have proven the plasticity of the brain. So mental thought processes do change the brain’s shape, ( a body part) and therefore are physical acts.
Les, while you are right on time with modern nero science you are no doubt ahead of your time in the patent legal world. Nonetheless your thoughts are a breath of fresh air in a blog polluted by MM and Neds daily emission of gas from the anus.
MM: ” All of the “actions” that follow the ineligible claims we are discussing are in the prior art or covered by the licensed/exhausted patents of third parties.
So you admit there are “actions” beyond merely thinking that are part of the process. This literally means we are no longer talking about a mere mental process. The fact that the steps/actions that are physical may be in the prior art is of no legal consequence. Diehr Court told you:
“The “novelty” of any element or steps in a process, or even of the <450 U.S. 189> process itself, is of no relevance in determining whether the subject matter of a claim falls within the §101 categories of possibly patentable subject matter.12
It has been urged that novelty is an appropriate consideration under §101. Presumably, this argument results from the language in §101 referring to any “new and useful” process, machine, etc. Section 101, however, is a general statement of the type of subject matter that is eligible for patent protection “subject to the conditions and requirements of this title.” Specific conditions for patentability follow and §102 covers in detail the conditions relating to novelty.13 <450 U.S. 190> The question therefore of whether a particular invention is novel is “fully apart from whether the invention falls into a category of statutory subject matter.” In re Bergey, 596 F.2d 952, 961, 201 USPQ 352, 361 (CCPA 1979). See also Nickolas v. Peterson, 580 F.2d 898, 198 USPQ 385 (CA6 1978). The legislative history of the 1952 Patent Act is in accord with this reasoning. ”
Further more to even make such a case would require you to dissect the claims into old and new steps. This is NOT allowed. Again, Diehr told you:
“In determining the eligibility of respondents’ claimed process for patent protection under §101, their claims must be considered as a whole. It is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made”
Deal with it!
“Are Ned and MM the same entity? They both fall back on childish name calling and personal attacks when confronted with a strong argument….”
Well, MM, AKA Malcolm Mooney is the original Sock Puppet Master, and inventor so it’s not impossible. But it’s true neither can handle strong arguments , especially based on logic and fact. Once it becomes apparent they are going to lose they just revert to juvenile name calling.
“Pitty, there is a wonderful [imaginary] intellectual world out there that you don’t understand.”
Newsflash, it isn’t that wonderful and it won’t get you that many chics.
“He said he didn’t know.”
Which is precisely what dictates your position on this issue today. You simply don’t know. You don’t know what the magic is that makes all these wonderful “information processing” processes new. Here’s a hint, it starts with M and ends with ath. Had he have simply told you on that day perhaps your entire life would have changed. You’d be slightly more disillusioned with programming sure, but overall, you’d be better off for it.
“In the end, what the Federal Circuit did in Alappat was resurrect In re Benson, In re Bernhardt, both of which had been overruled by Gottschalk v. Benson.”
Not really. They just called Chuck Testa.
Just Chuck Testa.
link to youtube.com
They’re dead. Chuck Testa doesn’t resurrect, he taxiderms.
“repeat a lie often enough and it becomes the truth”,
Which “lie” are you referring to, why are you so afraid of it becoming “the truth”, and why do you believe that comments on this blog will matter one way or the other?
I thought that your Master Gene Quinn’s blog was the only one that mattered. It seems we’ve identified another, uh, “inconsistency” lurking amongst your many bizarre statements.
I am “obsessed” with … the proper treatment of legal argument
All the evidence suggests otherwise.
let’s just say I am “obsessed” with the truth
Except you just proved otherwise. Do you want me to prove again where your obsession lies? Shall I start the discussion where you “obsession with the truth” dissolves into vapor and all that remains is your obsession with trolling this blog and attacking those who disagree with you?
Do you really think Dennis will suffer a 90% drop in postings?
You really do need to see a doctor.