By Dennis Crouch
CLS Bank v. Alice Corp (Fed. Cir. 2013)
On February 8, 2013, the Federal Circuit held oral arguments en banc in this important subject matter eligibility dispute that focuses on the extent that software can be patented. Under Federal Circuit rules, en banc rehearings include all of the regular circuit court judges as well as any other judge who sat on the original panel. For this case, the nine regular members of the court were joined by Senior Judge Richard Linn who sat on the original panel and penned the opinion of the court that has offended so many anti-software-patent advocates. In the opinion, Judge Linn cabined-in the definition of “abstract” with regard to computer implemented inventions and also indicated that §101 should only be used to invalidate a claim when that result is “manifestly evident.” [UPDATED] With a ten-member panel the accused infringer (CLS Bank) needs six votes to overturn the original panel decision. With a ten member panel, six votes are needed to win. Since the original appellate decision was vacated, this appeal comes directly from the district court. As such, a five-five tie will affirm the lower court holding of invalidity. While I suspect that Linn’s language putting Section 101 on the back burner will not survive, I suspect that at least some claims will be seen to pass muster under Section 101.
The parties are in relative agreement on many points. None of the parties seriously argue that software per se is patentable – apparently assuming that software apart from its computer implementation always embodies an abstract idea. All of the parties also agreed that a computer specially designed to perform a particular function can also be patentable. The dispute centers on what test should be used to determine when you have such a “specialized computer” and on whether Alice Corp’s claimed invention meets that standard.
Most notably absent from the oral arguments was any discussion of the meaning of an “abstract idea.” Of course it is the ambiguity in the definition of abstract idea that is causing most of the confusion regarding subject matter eligibility.
For decades, patent attorneys have known that software can be patentable if properly claimed in a way that directs attention away from the software nature of the invention. I suspect that the rule-of-thumb for patent eligibility will focus on complexity of the relationship between software and hardware. And, if that is the case patent attorneys will renew their reputation for taking simple ideas and making them appear quite complex.
Mark Perry represented the accused infringer (CLS Bank) and argued that one starting point for subject matter eligibility is the notion that a process accomplished “entirely in the human mind or made with pen and paper” cannot be patent eligible. Further, merely speeding-up that process by using a computer does not somehow transform the process into a patentable invention – “it simply accelerates the process.” The bulk of the questioning focused whether CLS had overgeneralized the claims. For instance, when Mr. Perry began reading from the patent’s invention summary he was stopped by Judge Linn who responded that every claim can be distilled to an abstract summary but “that’s not the way that we assess patent eligibility or patentability.”
Judge Moore focused the questioning on the CLS Bank claim that included the most physical structure. Claim 26 of the ‘375 patent reads as follows:
26. A data processing system to enable the exchange of an obligation between parties, the system comprising:
a communications controller,
a first party device, coupled to said communications controller,
a data storage unit having stored therein
(a) information about a first account for a first party, independent from a second account maintained by a first exchange institution, and
(b) information about a third account for a second party, independent from a fourth account maintained by a second exchange institution; and
a computer, coupled to said data storage unit and said communications controller, that is configured to
(a) receive a transaction from said first party device via said communications controller;
(b) electronically adjust said first account and said third account in order to effect an exchange obligation arising from said transaction between said first party and said second party after ensuring that said first party and/or said second party have adequate value in said first account and/or said third account, respectively; and
(c) generate an instruction to said first exchange institution and/or said second exchange institution to adjust said second account and/or said fourth account in accordance with the adjustment of said first account and/or said third account, wherein said instruction being an irrevocable, time invariant obligation placed on said first exchange institution and/or said second exchange institution.
Judge Moore rightly suggested that a computer by itself is clearly a machine and subject-matter eligible. She queried then, how can a more particular invention – the computer with particular functionality – be ineligible? Perry offered two responses. First, he argued that the claim here is really method claim masquerading as a machine claim – that method itself is an abstract idea and the addition of the computer hardware does not make the claims eligible. Further, Perry argued that the claims here are not directed to any particular computer but instead a generic system. Judges Moore and Newman then queried whether the real focus should be on obviousness. Perry admitted that the claims may also be invalid under Section 103, but that the Supreme Court has indicated that Section 101 is a threshold inquiry. In addition, he argued, Section 101 inquiries are often easy because they do not require substantial discovery.
Perry also suggested that the requirement for extensive particular hardware rightly favors companies like CLS Bank and Google who spend millions of dollars to build systems that actually work rather than companies like Alice who merely develop a “McKinsey Report” and file for patent protection.
With Ray Chen on the sideline pending confirmation of his Federal Circuit judicial nomination, Deputy Solicitor Nathan Kelley stepped up and primarily sided with CLS Bank – arguing that software per se cannot be patent eligible because it is an abstract idea and that merely connecting software to a computer is likewise patent ineligible. The oddball test suggested by the PTO borrows the separability concept from copyright law. In copyright, a useful article is only copyrightable if the original expression is at least conceptually separable from the utility of the article. The PTO argues that an inseparability requirement should be put in place for computer implemented inventions. Under that construct, a computer implemented invention that applies an abstract idea would only be patent eligible if the computer is inseparably and inextricably linked to the invention. In oral arguments, Kelley suggested that the approach requires the “fact finder” to “go deeper” in considering whether an inextricable link exists. Mr. Kelly did agree (on questioning from Judge Moore) that the focus in this process should be on the language of the claims.
What the PTO wants out of this is a practical test that its examiners can follow rather than just the notion of an “abstract idea.” I believe that the agency would have been better served if he had focused on that point rather introducing a new concept into the law that does little or nothing to resolve ambiguity.
Adam Perlman argued for the patentee (Alice Corp) and likewise did not defend software patents. Rather, Perlman argued that his client’s patents were technology-focused inventions that wove together software and hardware in a way that “creates a new machine” that clearly satisfies the requirements of Section 101.
There was some back and forth about preemption. Neither party mentioned this, but a point relevant to preemption is likely CLS’s allegations at the district court level that it did not infringe the patents.
The Federal Circuit will likely take a few months to decide this appeal. An important issue will be to see whether the court decides this case quickly or waits for the Supreme Court to release its decision in Myriad. Although not computer implemented, the outcome of Myriad case could impact the law here.
Transcript Link
I am working on the transcript I put together. I am having trouble identifying the Judges. Was anybody there?
Wow. Lol. This is a long list. I didn’t think it was this long.
link to altageneral.com
Who is the male Judge who mentions post-solution activity at 35:26?
Who is the male Judge who mentions the “subtraction example” at 35:59?
Who is the male Judge at 37:49 who asks Perlman to agree that the claims hang together (the 3 types of claims)?
40:57 Male Judge. When he asks Perlman to turn to page 40 of red brief?
Male Judge 42:07. “Why Can’t you have a human being standing at those levels?”
Male Judge 45:16. “Claim 33 of the ‘479 patent is method of exchanging obligations it does not cite a computer…”?
Male Judge 47:13. “But suppose we were to construe that these claims as judge o’malley suggested as not requiring a machine would they pass muster under 101…”?
Male Judge 49:37. “Just accept that there is one method that involves end of the day netting.”?
Male Judge 49:42. “Is it possible to perform that method without infringing your claims?” ?
Male Judge 54:07. “So Benson was decided incorrectly?”?
Male Judge 55:00. “more effective arent’t you talking about that your method is designed to minimize risk…?”?
Male Judge 55:18. “That’s really what you are seeking to invent…”?
Male Judge 55:33. “Isn’t it just an idea?”?
Male Judge 55:51. “But the claims are directed towards the result…”?
Male Judge 56:04. “If I have a similar idea and I go and post individuals around the countries..?”?
Male Judge 57:33. “So what were your to other ways?”?
Male Judge 57:41. “You say you claimed 1 and 3”?
Male Judge 59:14. “There is no other way to do that without infringing your claim…”?
Male Judge 59:51. “But didn’t a fellow with the green eyeshades carry a set of shadow accounts…”?
Male Judge 1:03:12 “It’s curious that you say the computer is central this is a very detailed claim … “?
Male Judge 1:05:25 “That’s not part of the claim though”
Male Judge 1:05:29 “The particular way of programming the computer is part of the claim?”?
“integration analysis”, or what little you’ve explained of it
Excuse me? I have written maybe 500 pages of in depth analysis on “Integration” on this blog. Including applying the analysis to actual patent claims including high profile cases like Ultramercial. And I have challenged you, MM, and ALL the anti patent crowd to respond by applying Integration as written and described by the USPTO to any real claims. And to date you have ALL run away like the intellectually dishonest cowards you are.
Here, want to try it?
link to uspto.gov
:: Silence::
I didn’t think so. You can’t even make a substantive reply to my post at Feb 14, 2013 at 03:49 PM.
I find it interesting that instead of actually joining a conversation on this point, the same fallacy is simply reposted by the same poster on another thread, in a manner that one must really question as to being anything other than simply trolling.
It is difficult to have a conversation like this.
A fundamentally important legal doctrine implicated here is the notion of what a human being can do. When innovation involves augmenting what a human being can do, any doctrine that gets inthe way should be – if not held outright suspect – should at least be cabined in how far that doctrine is applied.
There actually is a very very easy solution to this here and now. Simply hold that for any patent process (or system capable of being used in a process), that is actually performed by someone totally in their mind, that for such an accused infringer, there simply is no liability for any process so actually done. Such a universal rule would remove the “boogeyman” and should make everyone happy.
… just like when I tell my boss that he is “talking out of his arse” I realise that he hasn’t made any audible communication from that part of his body.
LOL. That expression isn’t limited to a metaphorical application, however.
Are you saying that a device that adds to numbers together is not patent eligible – as perhaps opposed to patentable due to novelty?
Listen once more to the oral arguments, paying attention to the calcualtor scenario.
Be very careful here – history is not on your side on this.
Your bias is showing once more. I can see why your trying on the logic of the opponent has failed for you.
bob,
It is unclear what point you are trying to make with the turn of the phrase “[my] invented lack of limitations.”
And as I have pointed out, whether or not you are presently swayed is immaterial. There is no need for me to say you, as my view is the ascendant one. Quite rather, the onus is on you to sway me. Perhaps you will not be the coward that you intimated me to be, and you will be able to rise above your bias, accept the facts as they are, and make a convincing legal argument for the change in law that you so dearly desire.
I am willing to listen to such an effort from you.
Your analysis gets off the bat with a misstep.
Same function is not the same as same physicality, and software does in fact exist without hardware. It is easy to se your parsing efforts – your efforts to NOT get this working – as you now add electricity to the hardware. Is electricity claimed? Why that addition? I mean, besides the obvious strawman setup?
bob, I am afraid that our conversation is coming to an end, as you have not shown the ability to admit the facts as they truly are. I wish you well in being able to understand why this is so, to understand the strawman that you include with your bias, to understand that, as I have posted, the failure you experience is not a failure of the logic, but rather, a failure of your applying that logic.
best wishes.
Quite often I will use similes and metaphors to conjour an image in the mind of what something may be like, however I fully understand how I’m using them so any anthropomorphications that I do make are made with the full understanding that a computer does not “read” a line of code, just like when I tell my boss that he is “talking out of his arse” I realise that he hasn’t made any audible communication from that part of his body.
Is adding two numbers together a mental step? A computer does little more than that. (I’m not saying that what it does is insignificant.)
The “House” fallacy only exists if you accept that software is an improvement to a machine.
I think I could allow the statement that, on a computer, “new software is an improvement on the software that presently exists”.
My preconcieved limitations are not presently swayed by your invented lack of limitations.
(Hardware == unalterable firmware) != (alterable firmware == software)
According to the doctrine of equivalents,
1) Do they perform substantially the same function?
No. They don’t. Hardware exists without software, software does not exist without hardware. Show me the software that does not (physically) exist without hardware.
The hardware/unalterable firmware accepts an electrical input.
The alterable firmware/software does not accept an electrical input. How can it? It doesn’t have a physical existance without the hardware.
2) Do they do the same function in the same way? That’s a strange question to try to answer when the answer to 1) is no. The best I can do is say that hardware can perform the same function in the same was as hardware + software. But software alone does nothing. The hardware + electricity does something.
3) Do they yield substantially the same result?
The answer is the same as for 2). Hardware can yield the same result as hardware + software.
Can’t see where I’ve gone wrong there.
An example of a simple bit of useful hardware is an adder, link to en.wikipedia.org. It does something when given the inputs. It lacks memory with which to store software. If you give an adder (well, a few of them anyway) some memory, and the method to access it, then you’re starting with the basics of a computer and you can give it other functions to do.
“They didn’t have to hold it. Dissection is what they did. Chances are they think it’s allowed.”
No they did not. Dissection means to strip away and ignore. This is not what the Court did in Mayo. This is what Steven’s advocated in his dissent in Diehr.
Stevens striped away and ignored:
1. The molding press.
2, The lid.
3. The timer.
2. The digital computer.
3. The software.
4. The physical acts.
5. The rubber.
6. The thinking step(s)
Stevens viewed all those steps/elements as non novel, old in the art, and therefore did not carry patentable weight under 101. Thus Steven’s ignored them all .
Next Stevens focused on all that was left of the dissected claim, the Arrhenius math equation,.
Stevens relied on Benson’s ruling that a disembodied algorithm/math equation was an abstract idea under the Courts judicial exceptions to 101 statutory matter to declare Diehr’s claims as patent ineligible.
Stevens ripped the invention apart until he found it’s vulnerable beating heart and sought to kill it.
However Steven’s dissection was rejected by the majority in Diehr in favor of considering the claims as a whole, an “integrated” approach.
The majority, in viewing the “claims as a whole” considered every element and came to the factual conclusion the claims did not preempt a Court created judicial exception, and therefore did not foreclose others from the use of that exception for future innovation. The majority realized that the claims were indeed an application and statutory under 101. And just so no one would be confused the majority expressly forbad dissection and the view of Steven’s.
Prometheus followed the same process as the majority in Diehr and arrived at the conclusion that unlike Diehr’s math equation, a LoN in the form of naturally occurring correlation had been preempted. And to make sure no one was confused the Prometheus Court relied on Diehr as the case most on point and characterized the claims as “integrated”, not dissected.
What’s important for you to learn is that the Prometheus Court did not dissect, strip away and ignore, ANY element in the claims. All the steps were given patentable weight and considered as a whole. It’s the foreclosing of the LoN that sank the claims and that is all. Most important, if all the steps, including the LoN would have been “integrated” in a process that allowed others to use the LoN for future innovation, Prometheus patent would have been held to be eligible subject matter. It would not matter if the steps contained any combination of new, old, thinking, physical, machine, or transformation. The law requires that you give every element/step patentable weight, As the PTO said in Alice oral arguments, you look for the “inseparable whole.” That means “integrated” And thats the law!
Any questions?
I am here to help.
so holding that “claim dissection” is now allowed.
LOL, “so holding”.
They didn’t have to hold it. Dissection is what they did. Chances are they think it’s allowed.
Even your “integration analysis”, or what little you’ve explained of it, requires separating out the abstract principle from the rest of the claim and thinking about whether/how it relates to the other limitations.
For someone who loves Prometheus so much, one would think you could at least be bothered to leaf through it once or twice.
MM Wrote: “You were fond of calling my arguments about the eligiblity of [oldstep]+[newthought] claims “fallacies” as well. But you were never able to refute those arguments. Then a 9-0 decision came down. You still are unable to refute those arguments.”
[oldstep]+[newthought] is not a patent claim.
[oldstep]+[newthought] is not an argument.
[oldstep]+[newthought] is not a Court holding.
[oldstep]+[newthought] is not a statute.
[oldstep]+[newthought] is not a MPEP Rule.
[oldstep]+[newthought] is not any legal precept whatsoever.
[oldstep]+[newthought] is a couple of words you typed in brackets with an addition sign in between.
[oldstep]+[newthought] looks like an equation but it’s not even that. And no one on the planet recognizes or knows what [oldstep]+[newthought] is supposed to mean, not even you.
MM: “Merely labeling something a “fallacy” doesn’t “dispose of it”, anon, except perhaps in your own mind.”
And merely typing the words “[oldstep]+[newthought]” thousands of times on a blog for months and months doesn’t make it anything but words typed thousands of times on a blog for months and months. And perhaps a sign that perhaps you have lost your mind.
“anon: One of the main arguments in patent law is that you cannot engage in claim dissection.”
MM: Prometheus put that to bed,
101 Integration Expert: Please provide the exact quote from Prometheus of the Court so holding that “claim dissection” is now allowed.
MM: Runs away like a scared school girl and hides in the closet.
bob,
The answer is the word equivalent as opposed to exactly equal.
You don’t seem to be looking at this with as open of a mind as you may have thought you had.
It is reminding my of that poir poir lad I once tried to enlighten.
And the similarities especially to the legal theory of not impinging on the (actual) human mind really should be explored.
But the sound byte seems as far as that conversation goes…
“Merely labeling something‘
You weren’t paying attention. Facts and case law have previously been given. In fact, you, yourself have voluntarily made admissions noting the truth of what I say.
If I wanted mere labelling, I would insist on a discussion of “isolated.”
As for your [oldstep+newthought] claptrap, you were the one kind enough to show a link to how the USPTO viewed that case, and guess what? You should read the links you provide before they result in your glorious self-defeat. Quite in fact, outside of your mere labelling, you have never provided a confirmation of anyone outside of your circle that buys into your claptrap.
As for table-pounder, as Ronnie would say, “Well, there you go again” – These replies of yours that are nothing but accusations of what you do simply do not help conversations here. The archives are full of your duplicity, and I need not do more than merely note that you are engaged in that activity (yet again).
Please desist. Thank you.
“it goes without saying that computers are a very special kind of machine with unique, well-known similarities to the human mind”
Please expound.
Both are used for storage of information and for processing information.
Both use electrical binary signals in their operation (neurons use electrochemical action potentials) to process and store information.
Both are used to make decisions in the course of carrying out processes that physically transform matter.
See also: link to sciencedaily.com
Nothing new here. And yes there are differences between brains and computers. But the similarities are important, particularly when the software claims recite only old method steps of receiving, storing, “processing” and/or transmitting “new data”.
Too often, the notion of “well, it’s automated” misses the fact that automation is but an element (and perhaps old), but it is a patent eligible element – outside of “math.”
Yes, but the myth of the Dierhbots has been shown to be just that: a myth. The presence of a patent eligible element in a claim is not sufficient to render that claim eligible. If the only patent eligible element in the claim is old, then its more likely (if not guaranteed) that the claim as a whole is ineligible.
Automation of information processing through the use of a computer is not “perhaps old.” It’s ancient, period. To the extent information processing can be carried out mentally, it’s an abstraction. The game applicants want to play is to argue that a machine that receives and stores data Y is a “new machine”. But it’s not. It’s the same machine. It’s just been taught to perform a new abstract process. Is progress in the art of information processing promoted by engaging in the charade that software patenting proponents encourage? It’s difficult to see how that could be the case when no skill in the art whatsoever is needed to obtain a claim that could, if enforced to its limit, ruin a company filled with highly skilled people.
these are the types of fallacies that have been disposed of many times
Those arguments aren’t “fallacies”, anon. If they were “fallacies” you could point out the logical flaws in the argument.
You were fond of calling my arguments about the eligiblity of [oldstep]+[newthought] claims “fallacies” as well. But you were never able to refute those arguments. Then a 9-0 decision came down. You still are unable to refute those arguments.
Merely labeling something a “fallacy” doesn’t “dispose of it”, anon, except perhaps in your own mind. These arguments aren’t going away because some table-pounder on a blog says they have been “disposed of.” They are going up to the Supreme Court.
anon: One of the main arguments in patent law is that you cannot engage in claim dissection.
Prometheus put that to bed, at least for the purposes of 101 analyses you are allowed to consider the eligibility of individual elements and their relationship to the prior art when determining whether the claim as a whole is ineligible.
Also, you’re beloved “printed matter” doctrine is certainly “claim dissection” by any reasonable definition.
So you’re absolutist position is false. Please continue, bob.
I am English. “Maths” is as equally valid a term as “Math”. “Math” and “maths”, is a contraction of the word mathematics, a noun. Mathematic would be an adjective. Whichever is more correct is to personal taste, but either “math” or “maths” is correct.
Yes I do understand the difference between pure maths and applied maths.
I suppose that you would say that factorisation of prime numbers is applied maths because it can be used in encryption? I’m afraid that a mathematician would laugh at you.
I can use the Arrhenius equation to calculate things, but I cannot use it to know when the rubber is cured and open the mold. That requires something extra to a calculation.
Maths doesn’t “do” anything. You have a fundamental misunderstanding of what some words mean. A person might do maths, a horse might do maths, a computer might do maths, but maths does nothing. Consider the phrase “applied maths shows how pure mathematical principles can be applied to aspects of reality to in order to model or explain those aspects.” I used the word “shows” within that sentence in an inappropriate way really. “Applied maths is the use of pure mathematical principles… ” would have been better.
I don’t have your schooling in patent law so I’m not familiar with the case law or statute that recognises something that “can be done with a pencil and paper” is patentable.
For your software to no energy thoughts, review the fact that components, sitting alone are fully patent eligible even when their function is only realized when they are used in some other context.
Are you saying that a patent eligible component is patentable again, in and of itself, because it is being used in another way from which it was originally created? That does not seem likely. There maybe a patent eligible process (different to the original use of the component) which uses that component, but the component itself would not be patentable again.
Or are you saying that the component is patent eligible, in and of itself, irrespective of whether, or not, it has been used in combination with other things and that combination is, as a separate invention, itself patent eligible? This is accepted.
Is a text file containing the text “Hello World!” patent eligible when opened in Notepad and displayed on a monitor? It is data processed by the computer in conjunction with the processing of the program “Notepad”. What’s the difference if it is opened with Excel? What’s the difference if it isn’t “Hello World!”, but “Hello anon!”?
Software is data. Data is software. To a computer there is no difference. It’s just an input processed into an output. This, I think, is the reason why I am looking from the point of the processor.
“Concerning the legally and factually correct statement “Hardware is equivalent to firmware is equivalent to software”. I have to disagree.”
Whether or not you agree is only material to your ability to truly understand.
The fact here is is simply not a choice of agreement. It is reality.
“I have put myself on the pro side to make arguments for that side and they don’t work.”
You need to check your bias. There is more likely a reason the pro-side positions don’t work being internal to you than internal to the logic you are attempting. See my other posts this morning. If you do not accept the facts as I have provided, then in truth you have not put yourself on the pro side, and more likely, have merely created a strawman of the pro side.
I am not saying that you are doing that on purpose (while quite in fact there are many posters here who DO do that on purpose).
“Just who exactly are your working for?” is a great question. I really applaud you for being so willing to do that. Just be careful of not understanding the insiduous power of WHY you are doing that. I had an extremely disappointing exchange once upon a time with someone who was “willing,” only to find out that the overpowering reason why that person was “willing” was to solely defeat the pro-software side. Such a zealous agenda simply blinded that person to the critical weaknesses in their arguments and made it impossible for that person to achieve actual understanding. All that person could do was achieve a hollow strawman of a view. It was very, very sad.
“No problem there”
Next you need to overcome your aversion to the plain fact that hardware is equivalent to firmware is equivalent to software.
Once you accept this fact, then I can address your remaining points of this post.
Can you accept this fact?
“I’ll give you a clue. It wasn’t the software.”
That’s the wrong question bob.
One of the main arguments in patent law is that you cannot engage in claim dissection. You are doing that.
In truth, what made this possible was both the computer and the software (this by the way, defuses your point about future computer capabilities, especially if you allow your own dissection argument – which in essence would ironically and actually be the embracing of the rejected Morse claims – by whatever manner in the future created).
There was a story told on these boards (the archive function may be of value here) that very vividly made this point.
You are allowed two computers. One is empty of software, the other is loaded with the claimed software. A race ensues to do what the claim does.
Without changing the machine without software, who wins the race, and why?
One fallacy that you continue to embrace is the notion of “using” does not change the computer. As this is the current state of law, the onus is on you to change the law. I am not about to call yo a coward for not undertaking this task, but at thesame time, I am unwilling to simply accept your edict that the computer is not changed. The Great Race story (or challenge) needs to be overcome.
I will review it. Hatband being Gulack and measuring cup being being In re Miller? If so, no need to say. If not, then please correct me.
On skim reading I can see a little of functional relationship there, so maybe. However, just as a quick counter I cannot yet see how this differs from using different grains to produce different powders.
I’ll refrain from talking about configuration here. See my 3 resistors argument.
Doctrine of equivalents – the 3 bits. I get it. I’ll review it.
Alappat, I’ll re-read it.
Concerning the legally and factually correct statement “Hardware is equivalent to firmware is equivalent to software”. I have to disagree.
The Doctrine of Equivalents is useful, but flawed. Consider 2 black box braking systems. They are the same size and they connect to the car at the same points in exactly the same way. They can be swapped without any issues. One uses magnets to transfer the force applied to the pedal to the brakes, the other uses pneumatics. (In the brake with magnets force is transferred through 2 magnets aligned with poles facing each other to produce a “magnetic pressure”, with pneumatics through the pressurised gas.)
Are they the equivalents?
Yet they do the same thing (increase pressure), in a similar way (movement) and produce a similar result (apply the brakes).
Yet you’re asking me to believe that two computers which can have completely different architectures, operating systems, etc can be equivalents?
Can you resolve this conundrum?
When I say “you”, I meant the plurality of the pro side. I understand that for me to change the law it is up to my argument. Few can change the law – the judges and congress – so my argument should be directed toward them. However, points have been raised in debate about the current and past cases on this website so I have offered my thoughts. If you cannot counter my thoughts or answer my questions then how can the debate progress? Simply saying “it is so” is like a parent that is unwilling to teach a child or answer that child’s questions.
I am familiar with the Socratic method. I use it myself when teaching my minions..
The reason I’m asking you to hold my hand with certain points is that I have put myself on the pro side to make arguments for that side and they don’t work. I would often play chess against myself or scrabble against multiples of myself in order to explore my own tactics. I fequently get my bosses annoyed by explaining things from the other sides point of view which often results in the question, “Just who exactly are you working for?”.
3 resistors in series, then parallel. Different machines. No problem there.
But I’m curious. If I build 3 resistors and wire them both in series and in parallel but have switches inserted so that by flicking a master switch the circuit flips from having the resistors in series or in parallel, have I got 2 machines or just one machine?
There is already a patent on a machine with the resistors in series and a patent on a machine with the resistors in parallel.
Am I infringing on either of the other patents? I’d argue that I wasn’t because my machine has a different circuit to the other two machines. My machine also does different things that other other two machines cannot do, though there is some similarity in that my machine also does the same things depending on the configuration.
Irrespective of the different software that may be running on a computer, the wiring is the same. The circuits are the same. Just because a machine is composed of a multitude of switches, transistors, capacitors, etc, and just because these components are massively in parallel and also massively in series, and the machine can do more than one thing does not mean that the machine becomes 2 (or more) machines.
Why haven’t the television content producers patented the broadcast and reception of their different programs? The receipt and display of each program makes a different machine. These programs are being sent digitally, received, the data is processed by a processor and sent to a screen, or just the speakers. It’s the same concept.
Ok BBUCC, 5 trillion trades per day. That’s fantastic. Some pretty fantastic programming there.
What made more than 5 trades per day possible? (Yes, I really mean 5. The number is arbitrary.) I’ll give you a clue. It wasn’t the software.
If I give you the algorithm to make a trade you would be able to program a computer which uses a Z80 chip to make those trades. You’ll not do very many per day. More than by hand but much less than 5 trillion.
If I give you a much more recent computer which uses multiple multi-core chips to process the algorithm then it may be possible that you would be able to make your 5 trillion trades per day.
In 5 years time it may be possible, using the same algorithm to do 5 quadrillion trades.
MM: “A giant swath of business method claims was “outlawed” by Bilski.”
Name just “one” type of a business method that was “outlawed” in Bilski?
Just one!
::Silence::
As usual.
Ned: “Similarly, doing nothing more than loading and executing software in an old computer does not make the computer new. The computer is not modified by the fact that it has different software to execute.”
Why should this matter for 101, especially if you are not claiming a new machine?
Surely, you can’t argue that software as a method is not patent eligible subject matter, especially software “integrated” in a computer.
There is nothing in Benson, nothing in Diehr, nothing in any case law that says otherwise.
” I know this is outrageous as there is no way to fight a determination that something is abstract”
Sure there is bro, it is cake to do for like 99% of my apps.
“The SCOTUS thought that the equation or method shouldn’t be patentable to allow for more machines.”
Indeed so. So why should we all of a sudden disregard that just for the sake of making authorship patent eligible?
Actually, “faster” is perfectly patent eligible type of distinction.
Just like stronger.
The missing point is that the faster needs to be “more than” what a human mind can do. The paper and pencil is an arguable crutch, but that provides a “like-obviousness” buffer about the human mind capabilty.
In this particular case, 5 TRILLION items is so well beyond what the human mind could do.
So INANE, your post – as it stands – is incorrect (and in typical fashion, misleadingly so).
Ned: “hey particularly cited for disapproval State Street Bank, authored by Judge Rich, that authorized a business method claim on the basis that it was a programmed computer, observing that such a test would allow patentable subject matter the Supreme Court has said or otherwise unpatentable.”
Hello Ned:
Just for the record the Supreme Court never said so called business methods were unpatentable. In fact the said the opposite:
Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. The term “method,” which is within §100(b)’s definition of “process,” at least as a textual matter and before consulting other limitations in the Patent Act and this Court’s precedents, may include at least some methods of doing business. See, e.g., Webster’s New International Dictionary 1548 (2d ed. 1954) (defining “method” as “[a]n orderly procedure or process … regular way or manner of doing anything; hence, a set form of procedure adopted in investigation or instruction”). The Court is unaware of any argument that the “‘ordinary, contemporary, common meaning,’” Diehr, supra, at 182, of “method” excludes business methods.) Bilski v Kappos 2010
“We know how the Supreme Court dealt with Prometheus. It was a short, clean 9-0 decision.”
Yes, it was “integration”.
The USPTO agrees with me.
See :link to uspto.gov
Who agrees with you?
:: Silence::
MF,
Be a pal and provide a link to how the Patent Office views the actual takeaway from the Prometheus case, will you?
Um…he can’t because he is afraid that all those Supreme Court Justices and their clerks, that in his mind hang on his every word to write opinions will learn that the PTO views Prometheus as a case for “Integration” and not one of his whacky mental steps dissection theories.
Here is the link:
link to uspto.gov
I would also add that while you step through your reasoning, to be very mindful of anthropomorphications – attributing to a machine ANY human capabilities (i.e.,, like reading a line of code).
All too often such things are skipped over too casually, and the fact that a machine operation (interaction) is taking place – and not a mental step – is glossed over and the legal ramification is missed. Too often, the notion of “well, it’s automated” misses the fact that automation is but an element (and perhaps old), but it is a patent eligible element – outside of “math.”
“Oh, but if you try to claim the machine you’re too late as it was already done, many years ago.”
bob, these are the types of fallacies that have been disposed of many times and yet keep on coming back.
Improvements to machines are patentable. The “Oops too late” is commonly known as the “House” fallacy. Your insistence that “software” does not change the machine is being compounded by this “the machine (without software) is the same no matter what else.” This view simply is not sustainable in the reality that hardware is equivalent to firmware is equivalent to software.
I cannot help you if you refuse to break out of your preconcieved limitations.
“I also understand, which many seem to refuse to understand, that software is maths.”
This then is the crux of the problem.
Software is not maths. Whatever you think maths (plural) is. You are operating in a philospohical realm with a statement like that. Quite simply, this is not something that is “refuse[d] to be underst[ood],” as it is to be simply accorded that it is a “belief” outside of rational thought – the religionizing (to coin a word) of “math.”
Do you understand the difference between math and applied math? When math is directed towards a purpose, a utility, you enter – FULLY – the sphere of the patent legal world.
Remember that I commented about patents and copyrights? And how some things can actually obtain protection of both? It is the type of protection and what that protection is for that must be kept in mind. “Do” is utility or functionality. “Maths” (if you must maintain that mystical term) that “do” leave the rarified air and become things of the patent world.
You also seem to think that anything, that any calculation that could be done with pencil and paper is outside of patent law.
This simply is not true. The amount of time to do the calculation (yes, the fact that computers are much faster) does in fact make a legal difference.
For your software to no energy thoughts, review the fact that components, sitting alone are fully patent eligible even when their function is only realized when they are used in some other context.
When you realize that, I guarantee that a smile will grace your countenance as the comprehension of my post at 5:23 AM yesterday concerning bullets, tires and rivets sets in.
Further, realize that there is a world of difference between MF and I, as MF is engaged in constant and (to those that understand can easily see) blatant manipulation and half-truths, pushing an agenda of changing the law without being reasonable or intellectually honest about what he is trying to do. When you garner an understanding of the law this will become evident as I have pointed out his critical admissions that shine a spotlight on his inequities. He has made these admissions voluntarily and these admissions show that he in fact does understand what the controlling law really is – and it is not what he wants it to be.
Take for example, the term “software.” Now it is beyond question, that for “software,” as the term is used and understood, copyright can be obtained. Those with any basic knowledge of IP not only know the difference between copyright and patent, but also know that copyright requires “fixed in a tangible medium.” And yet, you will have a poster trying to engage in a legal discussion and base their definition of “software” as some totally imaginary construct.
I would point out – at the same time – that in dealing with patents, the notion of constructive reduction to practice allows not just software, BUT ANYTHING to be handled in a more abstract way during the patent process. This is a nuanced view and is often lost on the uninitiated (and most unfortunately, spun for agenda’s sake by those who should know better). The quip “thanks for the concession” actually evidences a complete lack of knowledge of this nuance, and reflects ignorance, rather than victory.
Go back and review the exception to the printed matter doctrine. Look up and reason through the hat-band and measuring cup cases. Have a mind willing to understand how broad and powerful the “functional relationship” aspect is.
Then step back and take a ten thousand foot view of software. If software in fact did not have such a relationship, it would be completely useless. You simply would not be able to use it to configure the machine to do anything. It would in fact, be exactly like a closed book, merely sitting next to an electronic device, with no interaction and the device would not be capable of being changed to do anything more.
The reality speaks for itself for those willing to listen. The reality is that the machine is made capable of doing more, when it is actually configured with the new software. You are locked into this “processor doing the steps” mode of thinking, possibly from your technical frame of reference. Try expanding your thinking. Review what it means legally with the Doctrine of Equivalents. Then re-read Alappat. Then you may have a better appreciation when you read the legally and factually correct statement that hardware is equivalent to firmware is equivalent to software.
“You have as yet offered nothing which makes me think I am wrong.”
That is a “you” problem. I need not argue, as I am actually simply displaying the actual law. It is up to those that want to change the law that need to argue and make a case for doing so.
That’s an easy thing to see that points out that you are not an attorney. That’s OK – you don’t need to be an attorney if you approach this stuff actually willing to learn.
I understand that you want me to hold your hand through the process. Law school is taught on the Socratic method (I am sure you will look that up), and I, like most in this field, will tend to try to teach as we have learned. There is something very powerful developed when it is your reasoning that (correctly) gets you to the proper understanding.
“In re Alappat, the supposition that “new machine” is created with a newly programmed function defies logic and is factually incorrect.”
No.
It does not defy logic. Not at all. You may not understand the logic, but that is quite a different thing. Quite in fact, it is eminently logical.
It is also factually true. But you must be willing to understand why it is factually true.
A simple electronics example may help.
You open your toybox and inside are three resistors, and some wire.
You configure the three resistors in series and complete a circuit. You have built something tangible and apply it to a purpose.
You then take it apart.
You then configure the three resistors in parallel and complete a circuit. You have built something tangible and apply it to a purpose.
Ask yourself, is your first creation in any legal way the same as your second creation? Is it the same physical thing?
Now multiply the toys in the toybox a millionfold.
Have fun playing and building tons of different (both legally and factually) things.
Ned Heller said “We need to find out what is new in the claim, and if it is otherwise ineligible, determine whether it is integrated into the old elements in a fashion to produce a new result. That especially is Diehr and Mayo even though Diehr said not to look at novelty.”
Ned this is not correct. Here, let me explain it in what I hope is clear and simple terms. First, Diehr explained that the “novelty” in 102 is different from the “new” in 101. This was not changed in Mayo. So please don’t conflate the two. The “new” in 101 can be found in the use, and/or combination of old elements.
Now, as I have explained before the Court in Mayo found that Prometheus claimed a LoN in the form of a naturally occurring correlation, or as the medical community described it, “the body’s natural responses to illness and medicine.”
Prometheus’ use of the LoN is statutory. However the Court did not want Prometheus to have a monopoly on this LoN by itself so it made an exception to the law and ruled the process patent ineligible.
However if the LoN had been “integrated” into a larger process, such that others could use the LoN for processes and procedures completely different from Prometheus, then Prometheus claims would been held as statutory subject matter.
Now, this is where it gets potentially confusing and exploitable by anti patent types pushing for dissection. The Court did take into account the extra steps for applying the LoN that Prometheus used, and it found that even with these extra steps, Prometheus still effectively had a monopoly on the LoN itself.
[Note: the Court has only advocated doing so when the claims as a whole recite; a bare Court created judicial exception, specifically a LoN/Natural phenomenon or algorithm (derived implicitly from the Congressional Statute of 101) followed by additional steps or claims that apply the judicial exception. ]
As a result the extra steps were ruled to be insignificant and Prometheus still could not have a patent on that process. This takes us back to “integration”. Again if the LoN had been “integrated” into a larger process so that others could use the LoN, in a completely different process or invention, Prometheus could have a patent on that process.
It would not matter one bit under 101 if the steps were in combination new, old, mental, physical or contained machines or transformation of any kind. As long as the LoN was “integrated” in the “claims as a whole” a new and useful process would have been patent eligible subject matter. This is why the Prometheus Court was quite explicit in referencing “integration” back to Diehr and using that case as the model for statutory subject matter.
In Diehr, someone could still use the algorithm in a completely different process and not infringe Diehr’s claims because Diehr “integrated” the equation in the process as a whole, such that it did not form a monopoly on the equation itself. So contrary to what you said ALL of Diehrs holdings still stand, including no dissection, claims as a whole, and no point of novelty test at 101.
Any questions?
I am here to help.
“To you, software is a piece of plastics. To me, software is just 1’s and 0’s.”
I also prefer my software to contain some executable code so that my computer can function and I can use it to type this message to you.
And you can in return use your software and computer to type that the software is only 1’s and 0’s that exist esoterically in your imagination, and therefore is not actually being used and is not tangible.
Or on the other hand you can go put on your dark shades and go rent the Matrix.
101 Integration Expert: Yes it is an invention in at least the category of process.
IANAE: “Benson and Flook will be thrilled to hear it.”
101 Integration Expert: Diehr already told them all about it. And in case they forgot, Bilski reminded them at page 14.
anon: “And indeed, that was not the very point in Mayo (How in the world are you forgetting the actual touchstone: INTEGRATION).”
From 6’s laughable lie that he has performed “Integration Analysis” for 6 years on this blog, to MM running away every time the subject is mentioned, there exist a clear pattern of all the anti patent folks avoiding the Court’s “Integration” in their various anti patent theories and spin of court cases. And they do it for one reason, “Integration” destroys their agenda. After all, when you have the Office and judiciary looking for the “inseparable whole” in claims, as the doctrine of integration dictates, rather than trying to dissect claims into eligible and ineligible steps and essentially tear the invention apart, your goal to deny software, business methods, and overall eviscerate patent law is effectively stopped.
Ned: “Historical processes were MOT processes, as the court noted.”
You are aware that Diehr , nor any Court case thereafter, cabined processes to the type known or used in 1800’s inventions right?
Yes it is an invention in at least the category of process.
Benson and Flook will be thrilled to hear it.
IANAE: “But when that machine already exists, and everybody knows that its sole function is to process information faster, and the person’s “invention” is nothing more than “hey, we can use that machine over here, because I have information needs processing!”, that’s not really an invention, is it?”
Yes it is an invention in at least the category of process. And in at least two ways in that category.
1. The inventor has invented a new process for an old machine.
2. The combination of the old machine, doing a known process in a new way is also statutory.
This stuff is not that complicated unless you want to make it complicated to achieve a political policy based agenda that has absolutely nothing to do with the laws as they are written by Congress.
“It’s possible for a claim to have more than one thing wrong with it.”
Nice strawman. No one is arguing otherwise.
What people are saying is to ues the proper section of law to make a proper rejection.
But then again, you already knew that, right?
“do something new and useful within the meaning of the patent laws”
Do something – is that in the process of doing?
new – new in the process, or the result?
useful – speaks for itself.
As you may note Ned, the process of doing is easily met with software, and as you have admitted elsewhere, different ways of doing that end up with the same result are not only perfectly eligible, but perfectly patentable.
Let’s not forget the difference between eligibility and patentability. The Supreme Court has not (yet).
Close italics tag.
“was the patent office Board of appeals”
You are aware Ned that the patent office Board of appeals is not in fact distinct from the patent office itself and waht that means as to a true independent judgment, right?
You are also aware that Congress did set up a true Article III independent body to do exactlymore of the dogma masquerading as “legal thought” that is continually espoused on this bully pulpit.
“Shouldn’t you be very upset about Alappat for being ignorant of technology or something?”
IF that were the case, THEN yes, one should be very upset.
As it is NOT the case, one should be very upset at those that continually try to obfuscate what is law and what is fact.
The Church-Turing Thesis is that all computable functions (including what goes on in the bile inside your head) is computable with a Turing machine.
Too bad for some people’s heads that we haven’t solved the halting problem.
If they proved that any computer could do anything that any other computer can do, even before desktop computers, how is that consistent with a programmed computer being a “new machine”? How can it be an invention to use an existing Turing-complete computer for processing data?
Shouldn’t you be very upset about Alappat for being ignorant of technology or something? I seem to remember you being unduly fond of the word “psychotic”.
Night, I have agreed many times that a circuit and a programmed computer in the context of a machine that operates on signals, as in Alappat, are equivalents.
This does not mean that a programmed computer completely out of context and only doing things which are otherwise unpatentable is patentable because it is a machine. That nonsense was put the rest when the Supreme Court cited for disapproval State Street Bank which held that a business method was patentable when claimed as a programmed computer.
Bob, good luck and discussing matters with anon. I have been discussing this issue with them for years and in all that time he has refused to discuss whether there is a difference between using a computer to do something in a new computer. A new computer, being a new machine, is patentable under our law regardless of whether or not it is actually used for doing something new. Thus people who want to do something otherwise unpatentable, such as claim a business method, masquerade the claim as a new machine programmed to do the business method calculations.
Remarkably, this issue has been vexing patent law for generations. Judge Rich in Application of Benson was of the opinion that a programmed computer was a new machine without regard to whether the use to which it was put was otherwise eligible for patenting. That is why he was of the opinion that the claims in that case were patentable. There are patent eligible because they recited a computer.
Thus regardless of Benson and its following cases, Judge Rich remained on the court and continued influence the court to be of the view that a programmed computer was a new machine. He actually said that in dicta in Alappat, although the case itself held that the hypothetical equivalent of a programmed computer in the context of the claim to a graphics unit having an improved rasterizer was patentable in that context regardless that a programmed computer could be substituted for the specific hardware claimed.
Today there are members of the court obviously who continue to believe that a programmed computer is a new machine, just as did Judge Rich. The Supreme Court will have none of it, recognizing the bootstrapping for what it is – as an avenue for claiming subject matter otherwise unpatentable. They particularly cited for disapproval State Street Bank, authored by Judge Rich, that authorized a business method claim on the basis that it was a programmed computer, observing that such a test would allow patentable subject matter the Supreme Court has said or otherwise unpatentable.
Then reject it under 102/103.
It’s possible for a claim to have more than one thing wrong with it.
IANAE, no matter how many times we say it, friend, the other side will not accept that using an old machine to do something old is not an invention. Of course, using an old machine to do something new that is otherwise patentable is patentable regardless of whether one recites the old machine.
Similarly, doing nothing more than loading and executing software in an old computer does not make the computer new. The computer is not modified by the fact that it has different software to execute.
That said, a programmed computer in the context of an old process can improve the process as in Diehr or improve the machine, e.g., the claimed graphics unit as in Alappat.
Unless, of course, the “solution” is “do what you were doing before, only faster”.
Then reject it under 102/103.
“Nobody is claiming” that is just a lie. Listen to the oral arguments and read the briefs. In fact, the anti crowd is claiming exactly that.
Your red herring of “routine automation of a known method” belongs in 103. I just don’t understand how you write the things you do IANAE and then look at yourself in the mirror. You just type lie after lie after misrepresentation after intentional misunderstanding. Your insides must have more bile than the city sewer.
Look at the real world problems that software – algorithms in particular – are solving. Improving medicine, health, fuel efficiency, commerce, entertainment, dissemination of information,
Nobody is claiming that the real world solutions to those real world problems are ineligible for patenting.
Unless, of course, the “solution” is “do what you were doing before, only faster”.
as if what I just described is some type of impossibility.
eBay v. MercExchange would like a word.
Are you telling me that the inventor of that machine should not be eligible for a patent?
Of course the inventor of that machine should be entitled to a patent.
But when that machine already exists, and everybody knows that its sole function is to process information faster, and the person’s “invention” is nothing more than “hey, we can use that machine over here, because I have information needs processing!”, that’s not really an invention, is it?
Yes Ned. There you go. Hence the present outcry in Europe, about whether the Court of Justice of the European Union shall be the ultimate interpreter of substantive patent law under the EPC.
It is in trademark law, and look what a mess Europe is in there.
In patents thought, the Supreme Courts of Germany, UK and The Netherlands have for 30 years been obliged to dance around the fixed pole of EPO jurisprudence. By now they can do the dance moves in their sleep. In Europe, substantive patent law is by now more or less settled (even if fact-finding in England, under witness-intensive adversarial English common law, can lead to outcomes different from those delivered on the European civil law, court expert-dominated and inquisitorial mainland).
Fish, as you well know by now is not the particular form of the program that is important, but what the programmed computer actually does that is important. It must do something new and useful within the meaning of the patent laws.
Frank, but do you really regard the particular state of switches of any machine as patentable subject matter without regard to whether the machine in that configuration is doing something different? Is a particular state of switches even useful without any consideration as to what the machine does when those switches are in that particular state?
Paul, EPO. Perhaps the fact that the decisions are coming out of a pan-European "federal" agency rather than from the European court system may play a factor in just why there is uniformity of decision. I assume that if the only agency that was deciding patent cases was the patent office Board of appeals that we would eventually see the same consistency. However as you know we not only have the patent office board, but we also have District Courts, a Federal Circuit that hears appeals from both the PTO in the courts, and with different standards a review, and a Supreme Court that relies on its own cases and substantially ignores the cases of the Federal Circuit, essentially giving the Federal Circuit little or no respect (and there are well known reasons for that).
“ I do not see what legal foundation CLS has for that argument.”
They don’t have any. Just the like the “troll” comment at the end of Perry’s time, it was an emotional “policy” ploy. Those that understand patent law cringe at that type of grandstanding, form without substance argument.
The adage is:
When you have the law, pound the law.
When you have the facts, pound the facts.
When you have neither, pound the table.
What you see (very astutely from a non-lawyer) is very much the pound the table, “policy,” make up non-legal definitions spewing.
And yes, that fits the vacuous MF stuff you see on a nearly constant basis.
It is also why I pointedly ask NSII if he is a patent attorney. My guess would be that he is not. The discussion can be enjoined on several levels, and NSII would be trounced on any of them. His comment showing that he defines software only in a particular way to suit his views (and missing what the legal and PHOSITA views would be) does in fact tell me that he will not be able to see the legal significance of what I post. That’s OK. Like a cat playing with a mouse caught out in the open, I enjoy toying with him a bit, and perhaps one day if he ever garners the understanding of patent law he may return to these archives and draw a chuckle from his headstrong naiveté.
The exception to the printed matter doctrine. Printed matter is an eligible part of a patentable claim if the claim claim involves a new and useful a) feature of physical structure or
b) relation between the printed matter and the physical structure
a) software does not involve a new and useful feature physical structure. There’s no reason why it couldn’t be entered via a telegraph operator in dots and dashes. Data doesn’t have to get to the cpu from a hard disk or RAM.
b) I’ll have to think about this but I’m struggling in the time I have to think of a relation between software and the physical structure. Perhaps you can help me.
Comprehend the workings of the law. Are you asking whether I practise? Or just whether I understand there are rules and processes that are to be followed. The jury system. Evidence. Common law. Equity law. The different courts and what they cover. Or are you asking whether I understand the rules and procedures?
Really, for a lawyer your questioning is a little vague and ambiguous. Perhaps you’re hoping to confuse me or for me to admit some fatal error of thinking so that you can point it out.
I do not practise law. I do not fully comprehend everything about the workings of the law. I’m happy to lay it out for you. I’m not ignorant of the workings of the law. I can understand systems, when given the time to research.
I also understand, which many seem to refuse to understand, that software is maths. That software is a series of steps which can be processed using a pen and paper. A computer (ie the bit that computes) is just a glorified calculator with memory.
There’s no reason why you couldn’t create an interface with which to hook a calculator and a monitor together and then use the calculator to create a design of drill bit. The interface would be quite nifty and difficult to produce, and very deserving of a patent, but doing the calculations to find the positions of the vertices and edges would not be deserving of a patent. It would take time, but it could be done.
Answer the questions, and honestly like I have done with yours, and prove you’re not as cowardly as I am beginning to think you are.
Probably tl;dr, so sorry about that.
My point about you being like MM is that you refuse to answer questions when asked. You’re clever, I can see that with some of your arguments, but you act petulantly sometimes.
In re Alappat, the supposition that “new machine” is created with a newly programmed function defies logic and is factually incorrect. It is a legal fiction.
I argue what I believe to be correct. You have as yet offered nothing which makes me think I am wrong. I don’t believe that asking you where I have gone wrong is a bad thing. I am unable (or subconciously unwilling – I’m not sure and I’m willing to accept the possibility) to accept where my thinking has gone wrong. I was hoping you could show me where you think I am wrong so that I can either:
a) come to a different conclusion
b) offer a counter point to bring you to a different conclusion.
Being honest, I doubt that either case would happen, but at least I would understand the point at which you think I’m going wrong.
Please, if I’m wrong about the “doing nothing” statement, show me some software, then show me software stored on a computer, then show me the software doing something on a computer. I don’t believe you can because
a) whilst you can see the software, stored on a computer, as represented by text on the screen, that is not the software the runs on a computer.
b) software as stored on a computer is just data. Symbols interpreted into instructions which are received by the processor and processed accordingly.
c) software when running on a computer is just a processor processing data. The software does nothing to a computer. The computer does the work. The computer receives an input event which starts the ball rolling and the processor will fetch the first chunk of the program from memory to process it and produce an output which is likely to be sent to a screen. Then the processor will fetch the next chunk and process it accordingly. The processor does the work, not the software. There is no flipping of tiny electronic switches to produce a definitive structure, state or reconfiguration of a computer running software, a “new machine” as the justices believed.
Does the grain in Denner do something to the machinery? Or does the machinery do something to the grain?
NWPA mentioned energy. The software uses no energy. Creating the software does, in the programmer thinking then typing. The machine uses energy to process the software. But the software uses NO energy. Let’s patent the machine, as you claim to in Alappat, not the software. Oh, but if you try to claim the machine you’re too late as it was already done, many years ago.
Let’s patent the process… except it’s just something that can be done on paper with a pencil, mental steps, and mathematics at that. The computer is faster, sure. That’s why the computer was created and had been patented before. The calculator is faster too (than most people) but you wouldn’t patent the entering of numbers and operators on a calculator, would you?
To understand Benson you have to understand two things:
1) There was a lot of hostility by ee to cs people back then. It is hard to convey the animosity and vitriol the ee’s felt to the cs people. The EE’s felt like they were being taken over. The author of Benson hates CS people and is an EE person. Note that I never saw the CS people hating the EE people it was always the other way around. I think it was the CS people were usurping their domain as the algorithms took the lead over the circuits.
2) The idea of what this is about is simple. It used to be there would be an equation or method for doing something. A machine would be made to do it. The SCOTUS thought that the equation or method shouldn’t be patentable to allow for more machines.
The case Halliburton is the archtype. I won’t ripe it apart here, but it is the SCOTUS sticking their noses into something they don’t understand and making factual findings without evidence. This is what they mean by abstract—112 too broad. I know this is outrageous as there is no way to fight a determination that something is abstract. It a Catch 22 type of fight in that it is a war of words with one side having no rights and no ability to define terms that are dispositive.
Good points all of them. I agree with you. I think that is why only people that have practiced patent law for 10 years should be appointed to the Fed. Cir. for at least the next 20 years.
We don’t need three more non-practitioners sitting on the bench. Benson was written by a Justice Dept. attorney who had not practiced patent law and signed by a SCOTUS who had no idea what science was.
The appointments to the fed. cir. should have practiced patent law and ideally would have ph.d.’s in an area that is practiced. Probably the best would be a Ph.D. in computer science to pen some opinions to combat the nonsense we read right now.
E.g. if the test is–if it could be done by a pen and paper than all computable functions are not eligible and that includes a machine to perform the duties of a fed. cir. judge.
Thanks for the correction anon but I already know what “constructive reduction to practice” means. I wasn’t arguing patent law with Non Sequitur II. I am voicing my opinion from a practical and logical point of view. When I said reduction to practice I meant the act of using and making something. I know the legal terms means something different. None the less it does not matter because It seems Non Sequitur II is trying to mix his own metaphysical/philosophical views on software with patent law so reaching any kind of understanding with that commenter is futile.
Speaking of “constructive reduction to practice” I seem to recall Mr. Perry arguing that Alice had not actually programmed any software in a computer and just put the idea on paper so they could sue companies like CLS Bank. If “constructive reduction to practice” is legally the same as an actual reduction to practice I do not see what legal foundation CLS has for that argument.
It really sounds like something MM would spew here which of course does not say much for CLS’s counsel.
Anyway thanks again for the comment and feedback. This forum is truly an enriching learning experience.
Yawn. The point about the mass of progammers is that it is the type of activity that was intended to be encouraged. Human industry. Sure, most people in a given technical field don’t file patents. Patents are an exception. Look at the real world problems that software – algorithms in particular – are solving. Improving medicine, health, fuel efficiency, commerce, entertainment, dissemination of information, … heck, just read ScienceDaily.com’s computing page for a few days and you can’t help but ask yourself … this is an “abstraction”? This debate is a bunch of eggheads being too smart for their own good — you included Mal-colm Mooney.
Frankly, much of the problem stems from early Sup. Ct. decisions. Why shouldn’t a method of manipulating a register be patentable? Why shouldn’t the inventor exclude others? It’s the same reason why a few Morse claims were shot down — it’s really about scope. If the claim is broad enough it’s going to get squashed, no matter how convoluted or non-sensical the reason. The problem is also due to the nature of actually claiming a software invention. To describe a software invention in ways that justify the expense (meaning, they protect the idea), you naturally end up with a chunk of text that can appear “abstract”. Determining, comparing, selecting, etc. Judges need to learn to look under the hood a bit and ask what they are SUPPOSED to ask — what would this language mean to one or ordinary skill IN THE ART? I work with programmers all the time, and they can usually map a claim to their invention.
Wrapping this up, the debate is over-intellectualized. We need to remember what the patent laws were written for and the fact that patents are written and read by technical artisans, not philosophers.
I assume that when you switch to ad hominem attacks that you have conceded the argument and are throwing a tantrum. I guess you just need a nap.
I think you mean that I am out of your league. I can live with that.