Guest Post by Michael Risch, Associate Professor of Law, Villanova University School of Law
My forthcoming Florida Law Review article, America’s First Patents, examines every available patent issued during the first 50 years of patenting in the United States. A full draft is accessible at this SSRN page. The article reaches three conclusions:
- Our patentable subject matter jurisprudence with respect to methods can, in part, blame its current unclarity on early decisions by a few important judges to import British law into the new patent system.
- Early patenting trends suggest that Congress has never intended new subject areas be limited until Congress explicitly allowed the new subject area.
- The machine-or-transformation test, which allows a method patent only if the process involves a machine or transforms matter, has no basis in historic patenting practices.
When the Federal Circuit first issued its en banc opinion in In re Bilski, I believed that its machine or transformation rule could not have been based on history. I wrote in my 2010 article Forward to the Past that:
in its effort to deal with high technology, the [Federal Circuit] abandoned low technology. There are many patented processes that have nothing to do with machines or transformations—methods for measuring fabric, methods for harvesting fruit, and methods for manufacturing products by hand (for example, forming wrought iron). At worst, these types of historically patentable inventions would now be unpatentable. At best, determining what is patentable and what is excluded became much more difficult.
However, I did not have any real proof to support this statement, so I thought I would test the assertion with some quasi-empirical evidence. I spent the summers of 2010 and 2011 working with several research assistants, and we read every available patent we could find, a total of about 2500 before 1836 (most of our pre-1836 patents were destroyed in an 1836 Patent Office fire), and 1200 between 1836 and 1839. The goal was, first, to categorize patents as methods and, second, to determine whether each method used a machine or transformed matter to a new thing.
This was no easy task. Many early patents were difficult to read, and not just because they were handwritten. At the time, inventors did not have to claim their subject matter. As a result, patents usually described how to make or do something, and nothing more. It was often difficult to tell whether the making or the thing made was purportedly inventive. Even after more inventors started using claims, patentees would claim the exclusive right to “manufacture product X by doing Y,” which still left matters unclear.
This difficulty leads to my first conclusion. While courts often talked about “principles” in early judicial opinions, quite often they were attempting to determine the “principle of the machine” to identify what was patented for infringement purposes. Even when courts mentioned that principles were not patentable, the statement was usually a side issue and “principles” meant very basic principles, like “motion.” Because principles were not patentable, courts attempted to construe the patent in a way that was not a principle. This, it seems, is contrary to how we do things under recent cases.
In reading this old history, I discovered something interesting (and I don’t claim to be the first person to discover it – merely the first to tie the content of old patents to support the conclusion). Specifically, early judges imported British law into interpretation of the American statute. This might seem reasonable, except that methods were not patentable in England until after 1840. But methods were explicitly patentable (called “art” in the statute) in the U.S. Indeed, the very first patent covered a method of making pot and pearl ash. But Justice Story, who sat as a Circuit Justice in many patent cases, did not think methods should be patentable, and as such issued statements in many cases about what could not be patented – statements that have been repeated even until today. My article looks at these statements in detail, and shows how unclarity in early patents allowed the courts to perpetuate a (wrong) view that we must limit method patents in particular ways.
In the second part of the article, I discuss some general findings about the patents. Some were dangerous (lead paint and asbestos), some were ridiculous, and some were enduring. There were many business methods related to teaching , music, and exercise, and there was even a rudimentary software patent (on a Jacquard loom, though I know some think that this is not really software). This was an entertaining part of the article to write; it was interesting to see how industries developed through patents. However, there is one overriding theme: the patents started simple, grew more complex over time, and expanded to new subject matter over time. Further, very little of the subject matter that dominates today’s inventions—such as electronics, chemicals, and pharmaceuticals—was apparent in early patenting. My conclusion from this analysis is that the patent system was designed to handle new subject matter as it is invented, and that Congress never expected to step in and approve new subject matter over time.
The final part of the article examines the motivating issue: whether the machine or transformation test was historically used. Because patents from 1793-1836 were not examined by the Patent Office but those from 1836-1839 were, I could test whether inventors had a different view of this issue than patent examiners had. It turns out that the groups did not differ; the results are statistically the same before and after 1836.
And those results show that our first inventors did not limit methods to those that used machines or transformed matter. About 40% of the methods patents between 1790 and 1793 did not use a machine or transform matter. These would all be invalid under the modern test. To be sure, the test was very good at identifying business methods—nearly all of the business methods fell into that 40%, so it is hard to fault the test for failing to identify early business methods. Of course, today’s business methods do use machines, so I am not sure how accurate the test would be today.
However, there were many patents –many more than the business methods—that did not use a machine or transform matter. This, to me, suggests that among the tests other failings, it has no real basis in past practice or understanding. While we can debate the merits of the recent Prometheus opinion, I applaud its rejection (again) of the machine or transformation test as a way to determine patentable subject matter.
This post presents the basic conclusions of my article. There is obviously much more in this 50 page paper than I can write here. I detail my methodology (and its limits), 19th century law, and the patents in the full paper.
“it seems to have been introduced as an indirect way of limiting the scope of patent-eligible subject matter — which, as you point out, has only expanded over time”
Isn’t that the way it is supposed to be?
Interesting article. Indeed, the machine or transformation test has always seemed to me to be rather artificial; but it seems to have been introduced as an indirect way of limiting the scope of patent-eligible subject matter — which, as you point out, has only expanded over time. Bilski, of course, acknowledged the shortcomings of MOT by deciding that it’s not the only test, or even the determinative test, but is merely one indicator of patent-eligible subject matter.
100% correct AE,
I noted the following at link to allthingspros.blogspot.com , which fits the discussion to a T:
See Research Corp. v. Microsoft, 97 USPQ2d 1274, 1281 (Fed. Cir. 2010).
Nice case … stands for the proposition that a method, OBVIOUSLY performed by a computer, is statutory subject matter. Anyone skilled in the art wouldn’t think of performing any other way. A method performed by a computer passes the MOT test. No need to explicitly recite a machine when it is evident that a machine is used. Claims are used to distinguish the invention — not enable it. Pretty simple.
As I said Ned, this is not an an area of great interest to me. I was merely pointing out a flaw in MM’s logic.
Casual, what did you have in mind on that score? Obviously, I take into account that the SC in Prometheus poo-poo'ed handling such things as mental steps or natural law under 102. I believe both you and I are confining our remarks to 101.
Ned,
The difference you are overlooking is patent eligible versus patentable.
Casual, I think your post is close, but not quite right.
Per Flook, the underlying claim must itself be patent eligible, e.g., it cannot itself be an abstraction as in Flook. I think your formula works to this point.
Second, the mental step must be “integrated” into the old steps in a manner to produce an new and useful result. (See, e.g., Diehr) Your formula will admit of simply tagging on a mental step to a completely old process. Even, the government brief in in Prometheus would not go so far.
For example, the method of Halliburton v. Walker, provide a method of inducing acoustic waves into an oil well, gathering data, and then computing a value. The physical steps were all old. The court held the claims invalid under the mental steps doctrine in part because the only thing new in the claim were the mental steps and the rest of the claim were mere data gathering using old and well known physical steps.
Haliburton link to scholar.google.com
As I said, do with as you will. You might though listen instead of spewing venom and your “high brow” style of intellectual postings which rightfully earn you the honor of being the blog’s poster child for everything wrong with legal blogging.
suckie: What you have said is that claims in the form [newstep]+[newthought] are eligible for patenting.
I’ve said that and — importantly — much more, numbnuts.
Specifically, I’ve pointed out scores of times that the mere presence in a claim of a mental step does not render the claim ineligible. And, yes, that is the exact opposite of the words James Reed tried to put in my mouth (“you are arguing that the Supreme Court in Prometheus held all process claims with mental steps patent ineligible.”).
current law under the mental steps doctrine does allow patents for the claims of form claims in the form [oldstep]+[newthought]
Wrong, because “current law” includes the Prometheus decision which can not be squared with your m0r0nic bullcr-p.
You are operating on a kindergarten level of legal reasoning. If this were a civil rights blog, you’d be arguing that Lawrence v. Texas doesn’t apply to Lance Black because the Supreme Court doesn’t mention Lance Black in its decision. Your comments are that incredible stoopit. Please grow up already.
This is not an area of great interest to me so do with this as you will (flame, ignore, whatever), but MM, you appear to have a flaw in your logic.
What you have said numerous times is not quite the exact opposite. Not quite? It’s not even close.
What you have said is that claims in the form [newstep]+[newthought] are eligible for patenting.
But this is effectively only a claim for [newstep], and effectively, as James Reed points out, what you have consistently said is not the exact opposite at all.
The point of the matter is that current law under the mental steps doctrine does allow patents for the claims of form claims in the form [oldstep]+[newthought] when [oldstep] is actually composed of substeps, and the claim, as a whole meets the other areas of law typically concerned with patentability.
James Reed: What you are really arguing is that the Supreme Court in Prometheus held all process claims with mental steps patent ineligible.
LOL. No, dipsh-t. In fact, I’ve said the exact opposite numerous times already.
MTBHTDT
OK. Enough nonsense for this post. Dennis what about inviting the Lemleys and Sterns to get on this board and debate this issue with some of us real practicing attorneys. You know, the ones that actually write patents and enforce patents and are real people that work with inventors and companies. You know, the decent working folk against the abstract bizzarro folk. (Come to think of it people like Lemley aren’t eligible for personhood becaues they are abstract.)
Anything new and useful and valuable should be granted a patant period or its fraud against the inventor
Friends, I "have been corrected!"
Well now. We know who you are.
Regardless, Congress has historically delegated to administrative agencies specific substantive power so that it could, in its expertise, defining the law to some degreee. The Supreme Court has upheld this procedure as consistent with the constitution. If you go to law school some day, you will study the cases.
It appears that it was Congress's intent in 1790 to do just that with the patent law. Congress does indeed have that power (to delegate) and the original executive would not have been exceeding its authority if it had in fact made some effort to define invention. But it demurred to the courts in 1793 when it rewrote the patent laws and Congress passed the rewrite.
Regardless, Jefferson did write later that invention should not extend to the obvious and the trivial. That statement has been relied upon by the courts ever since. See Graham.
So, even though Jefferson punted in 1793, he got a chance later, in overtime so to speak, and scored a touchdown.
Autoclave, bye.
Your posts continue to portray you as a clueless individual.
Either you are a fake, posting to advance a certain agenda, or you are woefully ignorant on this area of technology. Or both.
Either way, our conversation is finished unless and until you educate yourself to a novice level in the autoclave arts.
What the Court should have done in 1790 was rule that Congress did not have the Constitutional Authority to abdicate its responsibility for making patent law by letting another branch of the government make law.
You think the court should have ruled that Congress was not empowered to make a law so unclear as to require judicial interpretation?
You seem to be aware that there’s more than one branch of government. What exactly do you think they’re all there for?
“They have been doing so ever since — an there is nothing at all unconstitutional about this”
Ned, this is a false statement and you have been corrected on this previously. Merely making a conclusary statement does not address, let alone make it so.
See this very thread, the posts at May 30, 2012 at 05:04 PM and 6:29 PM.
What the Court should have done in 1790 was rule that Congress did not have the Constitutional Authority to abdicate its responsibility for making patent law by letting another branch of the government make law.
Regardless of any of that, you should note that the executive branch never made law; at least not substantive law. I remember reading in these threads your lack of knowledge on the Taffas case, but you should at least remember that portion of the case that clearly stated that the Office cannot make substantive law.
What field, molding?
Computers?
The reason the Diehr case was at the SC was the mathematical equation claimed in the claims. Why this equation was even claimed at all is a puzzle, since apparently it was old and had nothing to do with the invention.
Yet you insist that the WAY the admittedly old calculations were done, using a computer, was critical to the invention.
One of the claims, claim 1, on appeal recited a computer, true, to perform the calculations. But the other, claim 11, did not. Overall, the computer was simply “used” like any tool or machine. The details of its structure, including its programming, were irrelevant to the patentability of the claims because the detail were not claimed. Claim 11, the claim that did not recite the computer at all, or define any particular means for performing the calculations, laid out the invention just as much as did claim 1 that recited that computer was used.
You will have to admit that the calculations could have been performed by an analog circuit, a special purpose digital circuit, or the like. A computer was completely unnecessary — a detail.
Because a computer or the use of a computer was irrelevant to the claimed invention, is is truly remarkable that you would insist, INSIST, that the invention of the claims lay in the WAY the calculations were performed, by computer.
If it was, then you should shoot the patent attorney who drafted the case, but he wholly missed the point.
What is truly ridiculous is that you continue to opine about a field that I have been intimately involved with for more than twnety years while it is clear that you have no knowledge of this field.
A note to MM:
Diehr is in the form [oldstep]+[newthought].
A “step” can be a conglomeration of sub-steps.
All of the individual sub-steps of Diehr were old in the art. Every single last element.
The [newthought] was how to handle the existing steps, how to apply those exact old steps in a different manner. The only novelty, the “point of novelty” was to do the calculations on a running basis. Since a human cannot run calculations on a running basis, this necessitates the use of a computer (itself old in the art). More to the point, it required the use of control software programmed into the old computer.
Furthermore, as has been noted, Prometheus does not stand for MM’s theory. Prometheus is about a law of nature. A law of nature is inherently different from form [oldstep], because a law of nature is not eligible while form [oldstep] is eligible (understand at least the difference between eligible and patentable).
Nowhere in Prometheus is there a discussion about “form [oldstep]+[newthought].” It is disingenuous to claim something that does not exist.
A note to Ned Heller:
I have been involved in the curing and autoclave arts since 1988. How long have you been involved in this art field? Kindly stop accusing me of making things up when I am truly an expert in this field and I know what I am talking about.
Con Man, Slow down.
Congress did not, in 1790, define "invention," "discovery," "limited times," or "exclusive rights." They left it in 1790 to the executive to define what an invention was (beyond machine, manufacture and Art). But, in 1793, at the recommendation, some would believe, of Jefferson, the executive was removed from that role, leaving it entirely to the courts to define these terms through actual cases.
They have been doing so ever since — an there is nothing at all unconstitutional about this, as the whole point of the courts is to intepret the constitution and laws.
“The most important issue on the exceptions is whether they are from the constitution or not. If not, congress can overrule the SC.”
Doesn’t this miss the point?
If the exceptions are not constitutional, they are illegal and congress shouldn’t have to overrule them. The Courts have no authority to make common-law patent law since the constitution expressly provide this power to congress.
MM: “Show me where the Supreme Court understood the claim to cover performing a prior art step and THINKING about the result.
Make my day, suckie.”
Closing the mold.
Constantly determining the temperature of the mold.
Constantly re- calculating the appropriate cure time through the use of the formula and a digital computer.
And yes, even if most of this was done by a computer, someone had to read the results and think a new thought.
Now deal with that beach.
“Better yet, please explain to me how a claim in that form is not effectively a claim to the new thought itself, at least from the perspective of a practitioner of the prior art.”
Because there is no proof of a new thought until a physical act occurs.
Physicals acts, with, or without machines or apparatus are no longer thoughts, they are acts.
All actions require thoughts. The two can’t be separated.
If you start dissecting thoughts , whether new or old, out of process claims you in effect dissect the steps that define patent eligible inventions.
This is why you theory has never been upheld by any Court and never will be.
What you are really arguing is that the Supreme Court in Prometheus held all process claims with mental steps patent ineligible. Yet you have no precedent to cite to prove your case.
Ridiculous!
You live in some sort of fantasy world where you just make up the facts at will.
Un-fracking-believable.
Sent from iPhone
“one of my “crackpot” “theories” is now The Law”
Repeat your lie often enough and you might even believe it. The 9-0 Prometheus decision had nothing to do with your rather banal theory. Law of nature is what Prometheus was about.
What the H does per se ineligible under 112 even mean?
Face it: you cannot have both of your crackpot theories!
There is no reason that the Supreme Court can not hold both that (1) [oldstep]+[newthought] claims are ineligible under 101 because they are effectively claims to mental processes; and (2) funcitonally claimed instructions for computers are per se ineligible under 112.
And please, let’s not forget: one of my “crackpot” “theories” is now The Law and the other is on its way.
9-0.
“I think you confuse apparatus and process”
Welcome to the land of What-Ev
“Quest declined”
Only a fool declines a path to enlightenment.
Oh wait, this is 6.
Nevermind.
Ned is still critically off.
The point of novelty is in the way the calculations (old in the art) were done: inherently it was by computer.
You really should not venture forth opinions in art fields you do not know anyhting about. Your ignorance shines like a beacon.
“A list of chores for 6”
Quest declined.
As I said, the computer in Diehr was not even claimed in one claim, and made no GD difference to the result. What means was used to do the calculation was not the point of the claim. The calculation, for Christ’s sake, used an old and very conventional algorithm. It was not new.
It is important in trying to understanding cases and what they hold and stand for, to understand their facts.
Critically important, I might add.
Just how this case even got to the Supreme Court is a wonder because its patentability had nothing to do with a programmed computer. A bona fide Section 101 issue was not involved in the case at all except if one were trying to misconstrue Flook.
“using this temperature to update”
And what pray tell “uses” this? Hint: the programmed computer.
Try to focus MM and realize what you give up by depending on Diehr (that’s right, software on a computer = new machine).
Face it: you cannot have both of your crackpot theories!
“and you’d need the software to actually do something”
The other half of the brain trust (6) says software never does anything.
One bankrupt trust…
“The Supreme Court in Prometheus had seen Diehr. Didn’t do Prometheus any good”
Take your shot and square Prometheus with the precedents it says it follows (don’t worry, no one else has actually done this yet either).
“What’s more, Diehr didn’t claim a “new machine”, Diehr claimed a process. ”
What’s a post from IANAE without a little straw? Process requires MOT, right? What was the new machine? (answer: none) What was the new transformation? (answer: none)
A list of chores for 6:
1) Define “particular” machine.
2) Explain why this definition is not used in all other cases outside of computer machines.
3) Explain what was meant by “I have never said that a given method of using a computer does not involve a machine.”
4) Realize what “component” means (both factually and legally; hint, understand Alappat).
5) Realize what “in action” means and understand that software if not passice, is structure, if passive, is method.
6) Stop drinking so much Koolaid.
Diehr, I think you confuse apparatus and process.
A process is independent of the apparatus. All it requires is that a series of acts be performed to produce a new and useful result.
In Diehr, what was NEW was the constant monitoring of temperature INSIDE the mold, and using this temperature to update the time to open the mold using a preexisting formula.
It made no difference to the result in Diehr whether the means of calculation was a human using his brain, pen and paper, an abacus, an analog circuit, or a programmed computer. None at all. The computer was not even claimed in the broader claim. All that was required was that the time to open the mold be updated.
Regarding Alappat, the hardware disclosed and claimed was not a programmed computer. It was a specific digital hardware circuit, a specific computer if you would. It was not a programmed general purpose digital computer. Furthermore, it was claimed, not per se, but as part of a graphics display.
Assuming arguendo the special purpose hardware could be replaced with a programmed computer, the Federal Circuit held that the result would not be changed because of the specific tie-in to the graphics display.
What Alappat did not hold was that a programmed computer simply calculating number without any use for the numbers could be patented as a new machine because those were not the facts of the case, even hypothetically.
More misdirection. And how did the Court treat that “wherein clause?”
The wherein clause was treated by the court as a step of thinking about the result obtained by the old, conventional process.
This was a matter of claim construction and was not disputed by the parties. Prometheus’ expert testified that, following the old conventional step of measuring metabolite levels, literal infringement could be found merely by looking at the measurement and thinking about the correlation.
This fact has been discussed here scores of times and your feigned ignorance of this fact is disgusting.
“It’s a machine, right? ”
Mhmm a computer is a machine, but is it a particular machine? Nah, not really. And is the MOT the lawl by which we determine elibility? Nah. It isn’t. Indeed, we just saw a USSC case where the MOT dictates patentability and yet the claim was held ineligible.
“t’s a machine component, right? ”
Nah.
“In action, it’s a method, right?”
Software “in action”? Software is never “in action”. Software has never performed an “action” in the history of mankind. Software is nothing but a bunch of instructions, they are passive, not active. But, even if it was, what of it?
A patent can issue with ONLY old steps.
Try to stay on topic, suckie.
We’re talking about claims in the form [oldstep]+[newthought] and why they are ineligible for patenting.
Either software makes a new machine (and Alappat rules) or, you have an old machine and a “new thought” being patent eligible.
Try to focus, suckie. We’re talking about why claims in the form [oldstep]+[newthought} are not patent eligible, and why. Whether software creates a new machine or not is utterly irrelevant to this question.
But I understand why you would want to try to change the subject, suckie. You do that a lot when you’re flailing. And flailing is all you have left to do now.
9-0.
suckie Been there, done that. See Diehr.
Incorrect. Diehr is not a claim in the form [oldstep]+[newthought], suckie. I’m curious as to why you think the claim in Diehr fits the format. I suggest you reproduce the claim here for everyone to see and explain exactly where the mental step is in the claim and how it relates to the other steps.
Unless you’re afraid to do that, suckie. I could understand why that might be the case. But go ahead, suckie. Make my day.
Either software makes a new machine (and Alappat rules) or, you have an old machine and a “new thought” being patent eligible.
Or software is not per se eligible, and you’d need the software to actually do something eligible. Like in Diehr.
See Diehr.
The Supreme Court in Prometheus had seen Diehr. Didn’t do Prometheus any good.
What’s more, Diehr didn’t claim a “new machine”, Diehr claimed a process. The step of opening the press based on the comparison was a new physical/transformative step.
Conundrum for MM
Either software makes a new machine (and Alappat rules) or, you have an old machine and a “new thought” being patent eligible.
See Diehr. Remember that in Diehr there was no new physical components. The only thing that was new was the programming for the computer.
Logic FAIL.
A patent can issue with ONLY old steps.
Does this make anyone practicing one old step and then combining that with another old step an infringer without even thinking ANY thoughts?
Your strawman example of a single old step is worthless.
T O O L
“go ahead and file some claims in the form [oldstep]+[newthought] and see what happens. Go ahead, suckie. Make my day. Better yet, please explain to me how a claim in that form is not effectively a claim to the new thought itself, at least from the perspective of a practitioner of the prior art. You’ll be the first to achieve that intellectual feat, suckie. Go ahead. Make my day.”
Been there, done that. See Diehr.
Let’s see MM actually use law and reason
Here it is, written at a pre-school level so suckie can understand (I’ve posted the argument dozens of times at a kindergarten level for suckie — evidently still too complicated!).
The law: you can’t get a patent on a mental process
The claim: [oldstep]+[newthought]
The analaysis: from the perspective of a practioner of the prior art (potentially a huge number of people, depending on old step), the claim is effectively a claim to the new thought itself. The reason that the claim is effectively a claim to the new thought itself is that the otherwise non-infringing actor who is freely and legally practicing the prior art need only think the new thought in order to become liable for literal infringement. In order to avoid literal infringement, the otherwise non-infringing practitioner of the prior art must avoid learning new facts. Because such claims have the effect of turning a mental step into an illegal act (at least with respect to those who are otherwise engaging in perfectly legal acts), they are obviously ineligible for patenting.
9-0.
Now watch suckie dissemble. It’s not going to be pretty.
Diehrs claim is [oldstep]+[newthought]
Show me where the Supreme Court understood the claim to cover performing a prior art step and THINKING about the result.
Make my day, suckie.
“ALL claims in the form [oldstep]+[newthought] are ineligible for patenting”
This can’t be true
It is true. If you don’t believe me, go ahead and file some claims in the form [oldstep]+[newthought] and see what happens. Go ahead, suckie. Make my day. Better yet, please explain to me how a claim in that form is not effectively a claim to the new thought itself, at least from the perspective of a practitioner of the prior art. You’ll be the first to achieve that intellectual feat, suckie. Go ahead. Make my day.
Much more than just a means plus issue in Alappat.
New machine…, component to a new machine…, drink it in new friend.
I thought Alappat had to do with means plus function language? Remind me, was there a B claim at issue in Alappat?
You softwaretardtrolls need to keep your subjects straight.
“total appeal process defeats. ”
I have no “appeal process defeats”. My spe has desired to reopen some cases and has done so. I however take no responsibility for his actions.
I do however claim to have jumped on the bandwagon on his proposed alternate rejection in one of the wins at the board. Although I may have been the one that thought up that grounds of rejection initially anyway. Who remembers?
“Your old computer isn’t going to save you from a nice lil ol’ 101. ”
It’s a machine, right? Your statements are in direct conflict.
“Software is notably not a method.”
It’s a machine component, right? In action, it’s a method, right?
“software + computer = patentable, per 6.”
Idk who told you that bro. Your old computer isn’t going to save you from a nice lil ol’ 101.
Software is notably not a method.
“Sort of like you, suckie, except you’re just a sychophant.”
syc·o·phant/ˈsikəfənt/
Noun:
A person who acts obsequiously toward someone in order to gain advantage; a servile flatterer.
English FAIL
software + computer = patentable, per 6.
As I said, welcome to the club.
Been there, done that
A L A P P A T
I have never said that a given method of using a computer does not involve a machine.
6 has never spent a day in the real world. That’s why he doesn’t know what business methods are.
“However, they are both clearly directed toward manufacturing; they are not business methods, and they are not abstract.”
Just for the record.
Manufacturing methods ARE business methods.
Business methods are not abstract.
“Finally, a method of using a computer, aka a machine, to _______ does not involve a machine.
Rampant incompetence.”
lolz
A little further commentary.
“Examples of non-machine and non-transformative patents might be helpful. The first clear example is X168, to Isaac Garretson on May 29, 1797, which described a method for manufacturing boats using tubes. The next is also a method of constructing boats, No. X449, to William Hopkins on May 13, 1803. The patent describes how to heat wood with steam so that the wood bends without breaking, a method still used today. The third is No. X617, to Ebenezer Lester on May 10, 1805, describes a method of making molds for cast iron screws by making imprints in sand using a wooden model of the screw. The patent is for the molds, not the screws, and
thus nothing is transformed. The fourth is No. X856, to Roswell Pitkin on April 23, 1808. This patent describes how to prepare fabric by pressing on it with rollers or plates.”
Apparently in Michael’s world, building a ship, presumptively from “nothing” or “parts” does not involve a transformation.
Also, heating wood with steam so that it is transformed into a maleable steamed piece of wood does not involve a transformation.
Additionally, making a device, presumptively from parts, does not involve a transformation because the patent is for making a mold, not making screws.
Finally, a method of using a roller, aka a machine, to press fabric does not involve a machine.
Rampant incompetence.
“Patent Nos. X5532232 and X5547,233 both discussed above as relating to
making combs from scrap parts and decorating combs, are examples of nontransformative
methods.”
A method of making a COMB from SCRAP parts doesn’t involve a transformation. REALLY? So, you had SCRAP, and then you had a COMB. By magic? Or by transformation?
“However, they are both clearly directed toward manufacturing; they are not business methods, and they are not abstract.”
Right, so they’re both directed to “manufacturing” aka transforming objects into other objects, but amazingly they don’t involve a transformation.
That is all the facepalming I can take for today.
“You can spin and deny all you want”
MM talking about the Bilski decision?
That’s the decision that sent MM on a two month absence from posting, his “Diehrbots will die” prediction coming up woefully short.
Try again.
The section Ned references is dicta to a side issue in Golan, an issue presented in the alternate.
It has nothing to do with the holding of Golan.
Try again.
“ALL claims in the form [oldstep]+[newthought] are ineligible for patenting”
This can’t be true because Diehrs claim is [oldstep]+[newthought] and it was eligible for patenting. And the Promtheus Court affirmed that with the discussion on integration..
The fact that MM or Ned will not face this fact shows their intellectual dishonesty and outright disregard for patent law that dies not advance their agenda.
No, no, no,…The iphone ate it.
“What statute?”
“”The one that has medical methods in it.””
LOL!
Next Ned will say , “what is a statute?”
oh I mean, he will” What is a medical method?”
Or ..he will “What is a business method?”
Oh ..well..one thing for certain .whatever Ned says next, if anything , it won’t be the truth.
“The question remains, why is the Court meddling?”
Of course the question remains. And of course the answer as supplied by Golan is being swamped in misdirection and minutia by Ned.
There is a clear dichotomy between patents and copyright, and elephant in the room. Once teh Supremes have lost their hold on granting rights to something in the public domain (for ANY reason), their constitutional plank of prohibiting whole categories of patent eligibility resting on that plank falls to shambles.
Ned’s answer is not an answer.
Once again, he skirts the direct issue in front of him, instead only focusing on Golan.
Wouldn’t it be wonderful if Ned actually answered a direct question with a direct answer?
Let’s give him another shot.
The direct question: How do you know this would frustrate the purpose?
The direct answer (sans assumptions): [Ned, this is your chance to be honest and forthcoming].
And yet another misdirection from Ned.
Clear Illegality was talking avout indications in Golan and Ned answers that there was dicta in Graham.
Oh, how Ned loves dicta when he thinks it supports his agenda, trucking in dicta from one case into a discussion of another case.
Another dodge by Ned.
The computer must have ate his homework.
“I now know that Malcolm fully agrees with ‘integration.’ ”
Show one instance, ONE, that Malcolm has EVER agreed with integration.
I will not be holding my breadth.
I>Even so, the thought we are talking about is expressed in the ‘wherein clause.’ ”
More misdirection. And how did the Court treat that “wherein clause?”
“What statute?”
The one that has medical methods in it.
“Prometheus, from Malcolm’s posts in this thread, I now know that Malcolm fully agrees with “integration.”
Ned, he is talking about dissection. Dissection is the antithesis of integration.
If you were honest you would concede this point and move on.
Regarding a SC holding that we disagree with, if the disagreement is statutory, we can amend the statute. If the disagreement is with the constitution, we can only amend the constitution.
That all I had to say.
The most important issue on the exceptions is whether they are from the constitution or not. If not, congress can overrule the SC.
anon, the Golan opinion cited the footnote in Eldred to explain its meaning. Take a look at the Eldred reference in Golan below. It refers to fn. 7.
"In Graham, we stated that "Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available." Id., at 6, 86 S.Ct. 684; post, at 907. But as we explained in Eldred, this passage did not speak to the constitutional limits on Congress' copyright and patent authority. Rather, it "addressed an invention's very eligibility for patent protection." 537 U.S., at 202, n. 7, 123 S.Ct. 769."
"New use" of a "know process."
I think he does draw the distinction in that the old process actually is not used in any new way. It output is not applied to any new use.
And kudos to A New Light, whose post has had my mind at hypergear on this topic, and reminds me that it is the simplest and often unchallenged assumptions that can serve as the fulcrum of truly monumental changes.
I am reminded of Archemides quote: “Give me a lever long enough and a fulcrum on which to place it, and I shall move the world.”
“Feet, the wherein clause is informational.”
That is not the answer to the question. Now either answer it or admit you can’t answer it.
Again, can you put the thought(s) you are ignoring, dissecting and/or not counting, in written form?