By Dennis Crouch
One major problem with software patents is their forced lack of transparency. The USPTO has granted hundreds of thousands of patents that should rightfully be termed “software patents,” but almost none of those patents include a claim directed to “software.” Rather, the innovative software is being hidden by innuendo and obfuscation because of the perceived ban on patenting software per se.
I contend that if we are going to allow software patents, we should do so openly and honestly. In that world, patent claims would be able to match the words of the computer scientist inventors and might simply be written as “Software comprising …” or “A computer program comprising …” We are not in that world.
In the 1960’s the USPTO began pushing against the patenting of bare computer software. Its 1968 guidelines formalized the USPTO’s position against computer programs as unpatentable mental steps under 35 U.S.C. § 101. That approach was largely vindicated by the Supreme Court cases of Gottschalk v. Benson (1972) and Parker v. Flook (1978). However, the combination of Diamond v. Diehr (1981); new leadership at the USPTO; and the formation of the Federal Circuit all rejuvenated the patenting of computer software. Many still hold to the idea that software per se cannot be patented because the software is not a machine or apparatus and because the software only becomes a non-abstract patentable process once implemented on a particular device. In Bilski v. Kappos (2010), the court rejected categorical exclusions of business method patents (and thus presumably software patents). At the same time, however Bilski and the subsequent case of Mayo v. Prometheus (2012) serve to revive the pre-Federal-Circuit case law and create further direct tension with software patents.
The result from this long history is that we still have software patents but they are hidden under the surface. They are harder to find, harder to examine, harder to understand, and thus much more problematic than they need to be. After fifty years of controversy; meandering administrative practice; and inconsistent Supreme Court decision making, it is time for the courts to take a stand and deliver the law in a way that is clear and precise. Finally answer the question: Is software patentable?
Seriously Ned?
Have you even read the terms of use for this site?
Hello Mr. Heller:
Thank you for responding to MM’s question to me. If you had not highlighted it i might have missed it! The problem you and Mr. Mooney seem to have is that you confuse the concept of considering additional steps in pre and post solution activity with dissection. And you incorrectly infer that such consideration negates taking the claims as a whole, as required by Diehr. I explained the difference in a post I made in response to a question to me from Professor Crouch, our blogs host. I shall repost it here for your benefit. Please let me if you have any questions. I am here to help.
101 Integration Expert Said: “On the surface it does seem that the Court is advocating ignoring elements as opposed to viewing the claims as a whole. However those additional elements are extra solution activity, (pre or post).
And as established in Flook, extra solution activity will not transform a judicially created exception into a patent-eligible application of a judicially created exception. But to take this to the extreme, as some advocate doing, would be a full blown implementation of dissection. The Diehr Court recognized this flaw and fallacy in the Flook Courts analysis and corrected it and warned future Courts what would happen if it was ignored.
Please read Diehr: “[Footnote 12] [It is argued that the procedure of dissecting a claim into old and new elements is mandated by our decision in Flook, which noted that a mathematical algorithm must be assumed to be within the “prior art.” It is from this language that the petitioner premises his argument that, if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter. The fallacy in this argument is that we did not hold in Flook that the mathematical algorithm could not be considered at all when making the § 101 determination. To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable, because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious. The analysis suggested by the petitioner would also undermine our earlier decisions regarding the criteria to consider in determining the eligibility of a process for patent protection. See, e.g., Gottschalk v. Benson, supra; and Cochrane v. Deener, 94 U. S. 780 (1877). ]
The Prometheus Court also was careful not to advocate dissection, a generic stripping away and ignoring of elements, and limited it’s analysis to extra solution activity in the wake of a judicially created exception. In this particular case, a Law of Nature. The use of (new and old) was limited to determining if the Law of Nature was simply being claimed by reducing it to a series of steps. In other word stating the LoN and saying apply it.
Please read Prometheus:
“Still, as the Court has also made clear, to transform an
unpatentable law of nature into a patent-eligible applica- tion of such a law, one must do more than simply state the law of nature while adding the words “apply it.” See, e.g., Benson, supra, at 71–72.”
However this was not a resurrection by the Court of a point of novelty test. And in following Diehrs warning, and to make sure it’s use of pre and post solution activity was not taken to the extreme or abused, the Prometheus Court carefully and explicitly chose to characterize the Diehr claims as “integrated” which corresponds to (conjunction, and combination) as used in the Diehr case.
Please read Prometheus:
“The Court pointed out that the basic mathematical equation, like a law of nature, was not patentable. But it found the overall process patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. Those steps included “installing rubber in a press, 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 automatically opening the press at the proper time.” Id., at 187. It nowhere suggested that all these steps, or at least the combination of those steps, were in context obvious, al ready in use, or purely conventional. And so the patentees did not “seek to pre-empt the use of [the] equation,” but sought “only to foreclose from others the use of that equa tion in conjunction with all of the other steps in their claimed process.” Ibid. These other steps apparently added to the formula something that in terms of patent law’s objectives had significance—they transformed the process into an inventive application of the formula.” [12 MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC.
Opinion of the Court].
If we follow the case law history on 101 what establishes patent-eligible subject matter is the application of a concept that is “integrated” into the process as a whole. Prometheus stood for no more than this Court honored principle.”
101 Integration Expert: “The lesson for you 6 is that “Integration” is viewed by looking at the claims as a whole in light of specification.
MM said: “That’s strange. Why, then, did the Supreme Court in Prometheus repeatedly make the point that certain elements in the claims at issue were “old and conventional”, a determination that could only be made by comparing those elements to the prior art?”
101 Integration Expert: But they did not “ignore” elements or steps in the claims. And that Mr. Mooney is the essential difference between dissection and Integration. Dissection ( strip away & ignore) is the antithesis of Integration. Never forget that!
Now, to why and how the Supreme Court is using the “conventional” language in Prometheus has been explained to you before.
The Court is referring to extra solution activity analysis ( Pre or Post). When a claim starts with a bare Law of Nature, non integrated, adding conventional steps will not transform the claim into an inventive application of the Law of Nature.
See Prometheus, “Purely “conventional or obvious” “[pre]-solution activity” is normally not sufficient to transform an unpatentable law of nature into a patent-eligible application of such a law.” (MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC.)
What’s very important for you to understand is :
1. that you only look at additional steps when there is a bare, or as the Federal Circuit says, Manifestly Evident, Law of Nature/Natural Phenomenon or Abstract idea. And……
2. And even when you do have a bare LoN with added steps the claims are still viewed as a whole.
The Prometheus Court summed it up quite nicely here:
“To put the matter more succinctly, the claims inform a relevant audience about certain laws of nature; any additional steps consist of well understood, routine, conventional activity already engaged in by the scientific community; and those steps, when viewed as a whole, add nothing significant beyond the sum of their parts taken separately.” (MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC.)
Let me know if you have any other questions. I am here to help.
anon, what is Dennis's rule?
I think he knows that attorneys will tend to advocate policies that favor their clients. They will also tend to not to advocate policies that undermine their client's business interests. That is the nature of things.
Dennis seems to recognize this.
Over my career, I have variously represented patent owners or accused infringers. I have been inside and outside. These experiences form my views.
Regarding software, I have been a programmer, and have been and still am a patent attorney representing software patent developers. I do not represent, at present, any defendants in software patent cases.
Does that help?
“What we need is a PTO that refuses to grant patents on programmed computers or configured computers, per se; software per se; or computer readable media or any of their equivalent forms. None of this has been approved by the courts. None of this is consistent with long established precedent.”
Yes Ned, we all know your anti-software patent agenda, and that you feel this is a need.
Thankfully, your feelings do not match up with the law. Thankfully too, it is Congress that writes the law (as dictated by the Constituion) and that a wide open gate at 101 is consistent with the constitutional mandate. Thankfully, your idea of precedent by the courts to set what is patent eligible is not the law – because, amongst many reasons – you cannot have innovation in such a post-facto world. True innovation cannot be known a priori and legislated in (especially by the courts).
What is simple and straightforward is that your views on this do not come from a careful and detached objective view of the law, but evidently from your pocketbook.
Your “history” is irrelevant to your current relationship.
You bringing it up (again) is merely kicking up dust (again). It is from your response that I obtained that Alliacense is your “client” as you begged off (dodged) my question with an attorney/client confidentiality “answer.” If that’s not the case, then what the F kind of answer did you give me at 7:29 PM?
I do not know if Alliacense actually is your client. All I know is that Prof. Crouch has a rule that it appears that you are breaking. Can I help it if it also makes sense that you are breaking this rule given your long history of avoiding resolution of the issues and topics I bring up?
I do know that such vested interests – if in fact they are present – will not advance open communication on this forum if your are dutifully advocating for your client (and is probably the reason why Prof. Crouch has that rule in the first place). Quite in fact, this is the type of agenda that I indicated on the initial post on the software thread that you applauded.
As noted, your comment and treatment of my relatively simple and straightforward (yet ultimately sharply piercing) question puts you in a bad spot either way you proceed as noted in my 11:17 PM post. The honorable options as I see them is to not post per Prof. Crouch’s rules, or to post in a truly individual capacity and accept where the conversation leads (which would be to the apparent detriment of your “client”).
Also as I posted with the initial post on the software thread, those who want the objective treatment also realize that in the real world, people may NOT give up their agendas. In those cases, life goes on too (although making this blog a better place is likely to fail because those agendas bring the games that detract from an objective conversation).
What we need is a PTO that refuses to grant patents on programmed computers or configured computers, per se; software per se; or computer readable media or any of their equivalent forms. None of this has been approved by the courts. None of this is consistent with long established precedent.
Perhaps the en banc Federal Circuit might help provide guidance here?
Software used in a generic computer may be patentable as a process, but the process must not be abstract.
All of this is simple and very straightforward.
Malcolm, I’m surprised you even read 101’s boorish posts. I stopped long ago.
Dennis, we need a filter.
anon, You think I am representing my current client’s views as an advocate? Really?
I have a long history in patent law. My history began in a patent case that had evolved into in antitrust litigation against the likes of AT&T. I begin to see how they operated, and it informed my views ever since.
Ned Heller Said: “If it ( software) is manually loaded and executed, the computer is being used.”
Mr. Heller, with all due respect, your lack of understanding of the fundamentals of “Integration” is showing.
When applying the Courts line of authority and analysis on “Integration” if the software is loaded, ( manually or otherwise) and executed within a computer, the software and the computer pass 101.
Also continuing with “Integration Analysis” the machine itself is new as well because its operational structure is changed.
Anything that is “integrated” is changed both operationally and structurally.
To integrate anything and have it remain unchanged would violate the laws of physics, and of patents.
So, your analogy of a programmed computer being like a loaded cargo ship is false.
While the cargo, say a container, is indeed on the ship, it does not change the operational structure of the ship, and therefore is not “integrated”.
In other words the ship is still the same old ship.
“Integration” as used in patent law, not only changes the operation of a process, it changes the structure of a device or machine, in that process.
Thus making the device or machine, new.
For example Alice’s claims are statutory as a machine and a process because of the “Integration” of software into a system.
Whereas Ultramercial’s claims are statutory as a process, because of the integration of a concept into the process.
Ultramercial’s claims do not rise or fall on whether the process includes or is tied to any machine or software whatsoever.
To conclude, everything I have stated above is factually and legally correct and can’t be disputed when using the Courts “Integration Analysis”.
For authority please see ( Diehr, Prometheus, USPTO Official Guidelines, MPEP 2106 )
Leo, a programmed computer is like a loaded cargo ship. It varies from other cargo ships by the cargo it carries.
Section 100 states that a new use of an old machine is a process.
It was very well understood law, prior to Rich, that one could not repatent an old machine because of a new use. A new use of an old machine was patentable ONLY as a process.
I hope now you see that one needs more in a claim to say that software transforms a machine into a new machine. If it is manually loaded and executed, the computer is being used. If it, in contrast, permanently resident and is automatically executed a machine process, it makes a new machine. Traditionally, this kind of software is known as firmware.
Between software and firmware is a grey area. Some kinds of software might indeed be patentable when claimed as a machine; but one needs the software to form an integral part of the machine such that it is alwasys there and always executed automatically when required, like an OS, or a device driver, or he like. These latter kinds of software, if claimed properly, do in fact transform the machine into something possibly new.
Sorry, Ned, I don’t follow you. How is a programmed computer any more transitory than any other destructible apparatus?
Software is abstract.
There is a difference between a baseball and a fastball.
There is a difference between a copy and a copyright.
There is a difference between instructions and an encoded article.
You, anon, never keep these distinctions in mind when making broad statements. The looseness in your remarks is characteristic of two very well known Federal Circuit judges, both have last names beginning with "R," and one of who has expired.
Leo, before patent law was intentionally confused by the likes of Rich who penned that programmed computers were eligible becaused they were machines in In re Benson, name me one example of a transitory phenomenon that was patentable as a new machine. Just one.
Software can be a component to an apparatus.
Software as a component can be a manufacture.
This is all very mundane. You are attempting to kick up dust in a swamp.
There is something fundamentally wrong with an apparatus claim that does not require in some manner that the “thing” be physically present more than a moment, or only when “used.”
Baloney, Ned. The fact that you can contrive a scenario in which there is no sale of the apparatus doesn’t demonstrate anything special about computer-implemented apparatus. Similar scenarios can be contrived for all sorts of apparatus. In any case, in your scenario it is not the form of the claim that prevents the apparatus from being sold, but the particular business model employed. So what?
You are passing off your belief of a flaw as law.
There is a difference and you should be aware of that.
So you are saying that Alliacense is your client.
That would be an odd reflection of what the USPTO records show.
So…
Either you are simply dodging again (but this time with a patently false pretense), or
You need to both evaluate your ethics by posting on this forum in the way you do in service of your client as well as read, understand Prof. Crouch’s rules for posting here as you would be in clear violation of those rules. Of course this would explain your unwillingness to fully engage the points I make, he run and retread tactics and the sometimes downright bizarre and obstinate positions on case law.
Either way does not look too good for you.
Anon, you may work for a firm that represents others. Your relationship to the firm is irrelevant. What is important is the firm's relationship to their clients. That typically is confidential. Don't you get that?
Software are apparatus?
anon, I am pointing out a flaw in the current legal regime.
Regarding patent amasses/extortioners who proactively "license" by intimidating based on the size of the pile without actually demonstrating infringement of any patent, I think this is a abuse of the system.
What sickens me is that these folks and their leaders are idolized as paragons of virtue and enrolled in halls of fame? Why? Because they are smart businessmen? Indeed they are. But they are not using patents for the purpose intended by the constitution, advancing the progress in the useful arts. These folks are better characterized as bullies operating under the rule of "law" known as "might makes right."
All this goes to show is that what can be abused, will be abused. We need the government to protect us from these kinds of folks, not honor them.
Not long ago we had Lemelson, an inventor who used every legal angle in the book to bilk the system for pecuniary gain. Every act, in isolation, was legal. But taken as a whole, there was abuse.
I don't know what we can do, but about this. But if Leahy and crew are going to look into patent abuse, they ought to look into the abusive practices by the very big players first.
Nice and complete dodge of the question of your relationship with Alliacense. Please note that I am not asking about your relationship with IBM (no matter how inclined you may be to malign them, they simply are not the point of my very specific question).
It’s as if you realize that be admitting of a relationship that you may be violating one of Prof. Crouch’s posting rules…
What would this site do without those posts?
“Apparatus claims are things, sir. They can be sold.”
If you have not been buying your software I know quite a few people who would like to have a word with you.
“This is really… or a combination of all of them.”
In other words, you are guessing or throwing everything at the wall to see what sticks because you really don’t know and it just doesn’t “feel” right to you.
Gotcha.
Except you might want to visit (again? For the first time?) my mocking example which paints all of your “feelings” and concerns in a purely traditional hardware setting.
You are attempting to make distinctions which are immaterial for the point of the discussion. Politely, that is called “kicking up dust” and you have been called out for it and (equally politely) asked to rejoin the topic without such tricks.
My relationship?
My response:
Regardless, my attitude about IBM and their ilk was formed in the '70s, right after I got out of law school, joined a firm and began litigating against AT&T. There is a reason the government sued them. Size was not the sole reason, or even close.
Now, their likes will explain to you the reason they aggressively amass giant piles of patents to intimidate people is because the government required them to license their patents. It takes only a second to see through this charade.
“Guess what the difference is?”
My guess (based purely on observation of your tendencies) is that the difference is NOT something that is actually illegal, but rather the difference is something outside of that “cloud of black letter law” that Ned feels SHOULD be illegal.
I will not hazard a guess as to why Ned feels so (but might guess that it has something to do with questions ignored and dodged – based solely on the record).
Sorry Ned, I am specifically asking you a question about your relationship with Alliacense.
This is at least the fourth time you have either ignored or attempted to dodge a very straight forward question.
What’s up with the games? Do you realize that this makes you look even more guilty of something?
Re: Alliacense vs. IBM.
There is a difference between asserting patents against people who are infringing and whom you provide proof of infringement, and what IBM and their ilk do.
Guess what the difference is?
anon, what I am showing your is that you apply your "configured" computer apparatus claim only to the use of the software. That, sir, is a method claim.
Apparatus claims are things, sir. They can be sold.
There is something fundamentally wrong with an apparatus claim that does not require in some manner that the "thing" be physically present more than a moment, or only when "used."
This is really either a definition issue, a 101 issue, or a 112, p.2, issue or a combination of all of them.
Ned,
Still no answer to my question re: Alliacense.
What’s up with that?
Sorry Ned,
In your haste to build your strawman, you have left it more than just a little unclear.
You say “claim covers a configured computer” but also say “software is present… available to all… public use..” Do you mind explaining what you are trying to say with that? You use “covered” in quotes – why? You also imply that single use is not an infringement, but you then do not provide facts for more than a single use and ask about infringement. Your own example fails on its own facts (in addition to its fail to reach the point you think it reaches).
You also drive off into the weeds with questions about infringement (direct, contributory, induced), and yet those questions have NOTHING TO DO with the underlying discussion.
As I pointed out with my mocking example, those VERY SAME questions can be put to an equally “troubling” situation with pure hardware. Quite in fact, ANY patent eligible technology can be stuffed together to make an equally “compelling” strawman.
If you are trying to make a (policy) point that software shouldn’t be patent eligible because of these types of considerations (and not, by the way, with any of the TRADITIONAL legal notions of patent eligibility), and you have failed completely.
The fact that you cannot see your failure only means that you are completely blinded by your agenda.
Review my first post on the software thread. Your type of posts exemplify EXACTLY the type of reasoning that should be avoided. Full of agenda and lacking any sense of objectivity.
That’s the right answer to your questions – and guaranteed you will not recognize why.
anon, OK. What is your position, then, on this:
Software is present on server, available to all to download for a fee for one time usage. The server is a public use server. "Covered" software is provided on the server by party Nancy Sue.
A difference Service Center provides computers for public use.
Joe Blow uses a service center computer to download the covered software, uses it one time.
The claim covers a configured computer.
Who directly infringes, if anybody?
Who contributorily infringes, in anybody?
Who induces, in anybody.
“I have answered your questions.”
Posted twice (and earlier many times as a question on agendas), but I have still seen no answer to my question of your relationship with Alliacense.
Or don’t you do answers (that are inconvenient)?
No Ned, you quite miss the point of my mocking example which was not concerned at all with a GP digital computer.
Hint: “exchanging hardware pieces”
The point is that your example was silly and quite besides the point of the current conversation. Can you please stop sidetracking?
Oh, I have a position – it’s called being objective.
You seem to not understand an essential aspect – you do not have to have an agenda to understand or talk about law. You mistake “position” for “agenda.”
anon, butcher law?
Your example tracked mine in that it illustrated that any number of people could cooperate to make a GP digital computer run a particular piece of software. The point is, who really infringes?
anon, we seem to disagree on the essentials required for a conversation. You seem to believe that only one side need to take a position.
Trust you? Sorry, no – you have established no basis of trust as you continue to butcher law left and right.
Don’t tell me with conclusive statements. SHOW me out of that same “cloud” of black letter law and NOT your imaginary Ned law.
Quite to the contrary Ned, my example was keyed specifically to a non-software hardware issue mirroring your silly hypothetical thus showing that you were only kicking up dust.
Now will you address the points previously raised?
I do plenty of answers.
I do not do answers to crappy and misleading questions.
Learn the difference.
“ How can we have a conversation?”
Good question – easy answer: we can have a conversation if you address the points already on the table as that content is much more important than your distractions or even my position.
In other words, address the law – the true law – and stop trying to make distractions. Make the focal point of the conversation the law and not either “my position” or “your position,” which is often merely a code word for agenda.
Leave your agenda at the door.
The lesson for you 6 is that “Integration” is viewed by looking at the claims as a whole in light of specification.
That’s strange. Why, then, did the Supreme Court in Prometheus repeatedly make the point that certain elements in the claims at issue were “old and conventional”, a determination that could only be made by comparing those elements to the prior art?
Anon, is does "programmed computer" or "configued to" cover the corresponding structure and equivalents, or not. If not, it covers any apparatus that achieves the function. That is claiming a result or at best a process.
Anon, your major problem is that you stand on a cloud of out of context black letter law thinking you are on firm ground. Trust me, you are not.
Perhaps, Anon. But it served to illustrate that there are problems with "programmed computer" claims. A lot of problems.
Anon, until you provide substantive statements or answers some questions, we really don't know your position. How can we have a conversation?
"Really?"
The problem is, Anon, is that you don't do answers.
Ned,
It is more than just a little ironic that you refuse to answer my points raised here with the MM style Accuse-Others-Of-That-Which-You-Do retread of
“Anon, I just knew you would not answer the questions. I knew the reason why also.”
It is you that is not answering, and the reason is only too clear (you should visit the thread to see how the chain has unfolded instead of only viewing the comments by email to see the full comedy of your reply).
Yes.
You should not have “old” in the claim, as it is neither appropriate nor necessary.
You should have more than one element to avoid the banal trap of anything close to a “single means claim” – btw, purposefully in quotes to defuse the expected “but that’s a method” claptrap. Keep in mind (yet again) that programmed to is a structural term of art.
Are you quite done with your strawman attempts?
The point that your hypothetical was silly and not germane to our discussion?
How could I miss that point?
Now, please return to the items I have raised and address them.
Thanks
1) you clearly have not answered my questions nor addressed the points I have raised (other than the simplest five resistor question – but seeing where that path lead resulted in the “breakdown”). Diverting questions are not answers.
2) your questions have nothing to do with the topic under consideration. Why should I indulge your efforts to sidetrack from an issue when you are in the spotlight? Should I care that your agenda is threatened by the points I raise?
They break down when you start asking questions instead of addressing the points I raise.
Anon. I see you get the point.
Anon,
Is or anything wrong with the following claim?
1. Apparatus comprising:
Old computer programmed to do X.
(X being a defined function and the novelty of the claim.)
Anon I have answered your questions. You don't answer mine.
Anon, discussions with you generally break down at the point you cannot answer questions.
Anon, I just knew you would not answer the questions. I knew the reason why also.
Then tell me why this matters not for a 101 matter.
Ned Hypothetical Offshoot 1:
A owns a factory that makes wadgets, leases a special machine owned by B.
C works for A and runs the wadget making machine.
D, an independent sales rep, sells the wadgets.
E, the mayor of the city where the factory of A is located, makes and sells electricity to A to make wadgets.
F, the town i_diot, secretly pines for no patents, and was visiting China, where he startled a butterfly, that flapped its wings, that changed the air pattern, that changed the precipitation factors, that changed the wind pattern, that made it an overcast day in the city where the factory of A was located, that made B sleep in, that made B late, that made B skip the anti-somebody-might-sneak-in-and-change-the-machine-hardware-pieces-and-machine-settings-to-make-something-other-than-wadgets protocols.
G owns a product patent for wedgets.
H, not in privy to any of the above, sneaks into the factory at night and changes the wadget machine, exchanging hardware pieces and machine settings.
The changes are not detectable to the naked eye.
Business as “usual,” the factory churns up using the city electricity, but today makes infringing wedgets instead of wadgets.
Who infringes? The owner of the factory? The owner of the machine? The person who runs the protective software? The owner of the protective software? The person who runs the machine? The person who supplies power to the computer that it operates.? The person making a butterfly flap its wings in China? Who?
Analysis please.
baby steps.
Congrats Ned.
You do not have to be “careful,” unless you mean that if you speak plainly and logically, you will be forced to admit things you do not want to admit.
Take a lesson from MM – twice recently he has admitted things that he never wanted to admit (functionally related and configured = structure) – and both on this topic. Life isn’t over for him. What’s the worst that can happen? You have to lay down a few cannards, retire a few agendas. You might find it liberating to have to stop being so “careful.” You might find it enlightening to be able to engage fully in adult conversations.
Ned,
You have made no point for me to concede to.
You, in fact, still have not addressed my initial rebuttal to the now oft-repeated Make-a-statement-be-challenged-run-away-and-return-and-make-the-same-statement.
We are no closer now to having an answer from you then when I first countered your insertion of “permanent and execute automatically.” You have nvere explained the legal backing as to why you insist this is law (when it clearly is not).
How are we to progress if I have to chase you every time you try one of your old tricks?
A puzzle? Yes – but not the one you think it is.
Why do you turn and ask me questions when I first asked you to provide a proper legal foundation for your (wayward) insertions?
Ned – that’s downright disingenuous.
Address the points I raise before kicking up a dustcloud to hide in.
Ned – that’s an awfully circumspect analogy you are tempting to paint with the “secretly loaded” business. Sorry, but “refuse to deal with” a bad and pointless thought experiment is no basis to actually deal with the more direct points that I have provided.
I am afraid that you will have to be more direct as to why you think you “have to be careful. Very careful.”
Unless, of course, you have a problem with objective logic…
…then again, you have not to this day answered my posts on agendas, nor have you addressed the comments I have raised in your attacks on IBM and your relationship with Alliacense.
Repeated here for your conveniece:
Your insistence on attacking IBM is quizzical, given that you have not answered my request to you to address the basis of your attacks.
Our posts on this forum are supposed to be not associated with our professional careers. Are you still associated with Alliacense Limited, and aren’t they a competitor of IBM’s? Wouldn’t “software” patents adversely affect your clients ability to obtain “non-hardware” patent protection?
I do not know the answers to these questions, or if the answers may be deemed problematic for you. I think they are fair questions given the positions you have taken on a number of topics.
Don’t get me wrong, being prepared for both business and legal tactics is admirable, but I do wonder whether if all of your expressed opinions are strictly from your individual capacity. If it were me, I would think that even the perception of doubt in this area might me you to withhold opinions (or at least those opinions which I then choose not to substantiate with answers to questions posed to me).
There are plenty of topics we have discussed, but I do note that it is specific topics that seem to more often than others create the “running-away-and-later-retreading” situation from you.
anon, we are close. Why you don't concede this final point is a puzzle.
Agent, you don't have to lecture me on computer technology. We have plenty of know-it-alls who already do. I started off my career as a programmer. I have done it all, including written OS's, real time programming, diagnostic programs, etc.
I think software that is part of a computer that allows improved interfacing, like an OS or a component of an OS, is entirely patent eligible.
A computer is seen running software. A claim covers a configured computer.
Who infringes? The owner of the computer? The person who installs the software? The owner of the software? The person who supplies power to the computer that it operates.? Who?
Analysis please.
anon, with you, I have to be careful. Very careful. You like the tent example where people enter and see computers running patented software and doing something useful, like waving a white flag, and along side that a circuit doing the same thing. But you don't tell us that just before you entered, the patentee's minion secretly loaded the software on your computer. Just how you, the owner of the computer can be an infringer when the patentee loaded the software on your computer is a puzzle that you do not deal with, and have refused to deal with.
“Transitory” was a bad argument for even the signal case (for example, look up into tonight’s clear sky for ” transitory” signals that have existed longer than the entire human race) -further, we are talking machines here, and as the simple five resistor example made clear, changed machines – whether manually loaded and executed or not (STOP injecting fallacies).
Well, that was one of my points, that we should explicitly allow software as a class of patent eligible inventions. A separate class, because it is so different from processes, devices, and compositions of matter.
Also, your reductionism will drive you to insanity before it brings you clarity. Data may be intangible, but it is not abstract, rather it is highly structured. Software may be the most highly structured forms of data. In the structure lies the IP of the inventor that deserves patent protection.
…permanent, …executes automatically…
Ned since I have repeatedly asked you for proper legal foundation for these notions you keep inserting into your arguments and you consistently ignore my requests, I can know presume that you have no such authority, your insertion of these factors is ultra vires at best and downright fraudulent at worst, please restate your position to reflect the conjecture nature or remove them from your argument so as to not mislead the casual reader.
Thanks.
Well, yes and no. Prior art has to be enabling, too, so it is kind of the same problem of diluting the enablement required. But even if software patents were adequately enabled, the PTO would still fail in finding the best prior art.
Obviously the devil lies in the details, and I am not saying that transitioning to a higher enablement standard for software patents will be quick or easy. I guess it will have to begin with the PTO admitting that many patents are not adequately enabled, which is a real problem for them.
When inventions were primarily mechanical, a drawing could capture most of the information needed to reproduce the invention, though not perfect by any means. This can teach us how far the PTO’s enablement standard for software has been biased by the infinitely flexible OSITA of the POSITA.
Also, many claimed software inventions are subtle aspects of much larger, complex systems that need teams of programmers to implement. It follows that such disclosures should be much more thorough than simpler software inventions.
Missing from the concept of a programmed computer is any recognized requirement that the “software” be “part” of the computer such that become one with machine. An operating system is one kind of such software that is permanently resident and which automatically executes. I think such software should be eligible for patenting as a new machine if claimed in a fashion that would exclude manual loading and execution.
This is the same issue, the lack of fixation, or permanence, that we saw in the case of signals.
Software that uses a computer to do something external to the computer that is physical should be patentable as a process. The computer is irrelevant because patentability turns on what the process does, as in Diehr.
Did I EVER indicate that utility or any other portion of patent law was somehow not applicable?
Please Ned, stay real.
I think you get the point of the logic that flows freely (and fully) from the very simple five resistor example. There is no need to fight that logic. Just accept the natural consequence and leave the agendas at the door.
Let me make an observation.
A circuit by definition has physical inputs and outputs that have substantial utility when interconnected with other circuit, such as in Alappat, where the claimed circuitry was part of a graphics display.
A computer that calculates a number does not necessarily have physical inputs and outputs. The resulting number must actually be used to do something practical, something physical, for the computer to be equivalent to a circuit.
I have agreed that a programmed computer having inputs and outputs that does something physical is claimable in that context. The problem I see is that you seem to want to claim the programmed computer as such, sans inputs and outputs and with no practical utility.
I am in awe of your patience or lunacy to deal with these issues over and over again, Anon.
Please, Ned, read about modern information processing. MM: you are patenting known chemicals. All known. How many chemicals do you suppose are possible? How many have been made? How many that have not been made can we tell what the structure is? So, you have no structural claim at all. All you have is use claims. We should pare down the chemical arts to only allowing a way of using chemicals and a way of making a known chemical.
Thank you. Now was that so hard?
Now instead of five, imagine millions.
Can you see where this path is going?
No.
Ned,
That does not answer the question, so I will ask you again:
Do you have the same thing when those five resistors are in series as when they are in parallel?
Do you?