Do the Wright Brothers Deserve a Patent for their Flying Machine?: Why Eliminating Software Inventions from the Patent System Makes No Sense.

Guest Post by Martin Goetz

Imagine that the digital computer and the stored computer program (software) existed in the late 1800's. If so, there is a high probability that the Wright Brothers would have used a computer program to control the three-axis control system in their 1903 Flying Machine patent application. If they did, we would call the patent they received in 1906 a software patent. Further imagine that today's anti-patent zealots who preach that all software consists of abstract ideas, mental processes or mathematics were thrown back in time to the late 1800's. And finally imagine that they were successful in their stated goal to eliminate all software patents through an act of Congress. Had that really happened, the Wright Brothers would not have received a patent for what is recognized as one of the greatest inventions of the 20th century.

Think of all the great inventions in the 20th century. Many would have used a software program as they implemented and disclosed their inventions. Would we be better off today if there was no patent protection for those software inventions?

For the last 50 plus years, the nature of software and of software products has been significantly distorted by opponents of software patents. But their argument to eliminate all software patents makes no sense unless their goal is to eliminate the entire patent system.

Here's why it makes no sense….

Article 29 of the TRIPS guidelines covering "Disclosure Obligations" states "…An applicant for an invention shall disclose the invention in a manner sufficiently clear and complete for the invention to be carried out by a person skilled in the art and may require the applicant to indicate the best mode for carrying out the invention…." If the best mode includes software (a computer program), then that disclosure would describe the software through diagrams, flow charts, and descriptive text.

According to Wikipedia "there is no legal definition of a software patent". Let's look at two possible definitions.

Definition 1: If the definition of a software patent is that, if in the Disclosure of the invention, there is a description of a computer program (in whole, or in part) then the patent would be called "software patent". A "Software patent", under this definition, would be found in many industries, e.g., Software, Telecommunications, Manufacturing, Transportation, Appliances, Medical, Robotics—to name a few.

Said another way… In many industries inventions contain software programs as part of their disclosures. Take the Robotics/Medical Devices sector, where very sophisticated computer programs can control an artificial limb. How the artificial limbs are designed and constructed may be the invention. Or the invention may be how the computer program(s) interacts with the artificial limb. Or the invention may be a combination of both elements.

A more recent real life invention is the artificial retina, a robotics/medical device which offers partial vision for the blind. It's described as a camera, transmitter, and cable to video processor (software) connected to the brain.

So those that want to eliminate software patents, by design or by ignorance, would eliminate all robotic/medical device inventions where the disclosure includes a computer program.

Definition 2: Anti-Software patent zealots might argue that the definition of a "software patent" is when the disclosure of the invention only describes a computer program and a computer. And then their goal would be to have Congress change the Patent System to eliminate the issuance of "software only patents". But that would be catastrophic for the Software Industry, where many of their inventions are software only. This industry is made up of thousands of companies and is recognized as one of the top three manufacturing industries in the world .With annual worldwide revenues well over $ 300 Billion this industry needs (and wants) just as much patent protection as other industries.

Many software product companies can be thought of as high-technology manufacturing entities. Many of their products are state of the art, developed in a competitive, fast-moving environment that requires rapid response to meet user demand. Some of their products can be all software i.e., Google's search program or they could be a combination of software and hardware circuitry and/or devices i.e., Google's driverless car or the 3-D printer.

If the patent application contains a true invention it should be irrelevant whether or not the invention is disclosed as a "software only" implementation. The following are two examples of inventions from the Software Industry to illustrate my point of view

Back in November 2012 Microsoft stated in a press release "Microsoft researchers have demonstrated software that translates spoken English into spoken Chinese almost instantly, while preserving the unique cadence of the speaker's voice—a trick that could make conversation more effective and personal." Certainly the way Microsoft's researchers accomplished this complex translation is not obvious. And I have is little doubt that Microsoft will try to protect its research investment with a patent application. But its patent claims could not be that it invented "speech recognition" or "language translation", or even "voice to voice translations". Patents for Voice and Speech Recognition patents go back well over 30 years with IBM having over 200 speech recognition patents. And there have been language translation patents for many years But Microsoft could invent a new way to do voice recognition and language translations and at the same time retain the cadence of the speaker's voice. And, let's imagine, the invention would use a standard headphone and the headphone would not be part of the disclosure. Such a patent on that invention would be software only (and a computer) in its disclosure. But what if the invention needed a special set of headphones (a device), was integral to the invention, and was part of the disclosure? Is a speech recognition/translation/cadence and special headphone invention any more innovative than a "speech recognition/translation/cadence" software only invention?

In 2000, a renowned inventor, Ray Kurzweil received a patent named Reading System which Reads Aloud from an Image Representation of a Document. The patent disclosure shows a diagram of a monitor, scanner, speakers, and a PC computer composed of a processor, storage and a keyboard. The essence of the disclosure and the invention is a logic chart describing a machine system which interacts with a speech synchronizer and the various devices.

The first sentence of the abstract in the patent stated "a reading system includes a computer and a mass storage device including software comprising instructions for causing a computer to accept an image file generated from optically scanning an image of a document."

At that time, Ray Kurzweil's company, Kurzweil Educational Systems marketed a special purpose hardware/software system called the Kurzweil 3000 Reading Machine which was marketed to the blind and poor readers. They received a patent on this invention in 2000. Today the company sells a software only system called Kurzweil 3000 and continues to have the protection of the patent system through his original 2000 patent and with additional patents e.g., Reducing processing latency in optical character recognition for portable reading machine — another software only patent.

Few would argue that the Kurzweil 3000 Reading Machine was not an invention and not deserving of a patent.

What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness. With that I heartily agree. To their credit, the Patent Office and the Courts are today grappling with how to recognize obviousness in a patent application. A very difficult challenge, to say the least.

But let's stop calling a true invention that includes a computer program in its disclosure a software patent. In fact, let's eliminate the phrase "a software patent" from our vocabulary.

END

Dennis Crouch

About Dennis Crouch

Law Professor at the University of Missouri School of Law. Co-director of the Center for Intellectual Property and Entrepreneurship.

224 thoughts on “Do the Wright Brothers Deserve a Patent for their Flying Machine?: Why Eliminating Software Inventions from the Patent System Makes No Sense.

  1. anon somehow knows better?

    Wrong focus Nunya – the law knows better.

    Or perhaps you should show me the “software-specific” uniqueness in the law? 35 USC….

    Pardon me if I don’t wait up for you.

    As for the claptrap you post, which of that is actually LEGAL differences?

    Or is the blathering and obfuscation about the topic of what is software (that you spew) and what is patent law (that you are strangely silent about) too nuanced for you?

  2. The Wright brothers were not the inventors of the airplane. Delbert Roberts invented the biplane two years before Kittyhawk. The plane engine was built at his worlds first auto manufacturing plant in Port Huron Mich. The plane was stored and took flight at the present day St. Clair County airport. The Wright brothers lived about four blocks from Delberts fathers house on 7th st in port huron.

  3. If you had the legal knowledge, you would know that software has no such “unique nature” under patent law.

    Software isn’t unique? Although SCOTUS has recognized the thorny treatment of patenting software / business methods, anon somehow knows better?

    Assuming that you aren’t just a shill and genuinely believe your statements I will take the time to point out some unique characteristics of software / methods that the rest of us already understand (apparently those of us who lack “legal knowledge”).

    Remember: nuance is a slippery beast so don’t get frustrated if what you read next isn’t immediately clear. Keep trying and one day you’ll get it. We’ll gladly welcome you.

    (1) As pointed out previously, software is eligible for copyright + trade secret protections. Does your better mousetrap qualify for copyright protection?

    (2) As a software industry expert, you are already aware that coding is a very creative experience. When the laws of physics no longer apply there are a lot of ways to accomplish the same result. Does a better mousetrap allow for these same variances?

    (3) As you know, many of the software patents involving UI features have already (or will soon be) held to be invalid. Slide-to-unlock, Bounce-back, Pinch-to-zoom are all either dead or will be because their claims do not meet the required standards (obviousness or prior art). It is the nature of SW DEV for UI to be drawn from a UI pool (which formed through a proccess of accretion by countless best practices and SMEs). How many mousetraps have faced this level of prior art / obviousness issues?

    Feel free to print this out and carry it in your wallet – if rote memorization doesn’t do the trick possibly osmosis will prove effective.

  4. I do have knowledge and experience in both worlds,

    He can’t tell you what it is, but it’s definitely from sometime in the past century.

    The point is, he’s right. He’s always right. He says so himself, constantly. And how could he be wrong about that, if he’s always right?

  5. Sorry Nunya – I do have knowledge and experience in both worlds, and my comments apply accurately and completely.

    If you had the legal knowledge, you would know that software has no such “unique nature” under patent law.

    But thanks for confirming your ignorance.

  6. “As for ‘ignorant shilling’ – one of us knows the law and the other doesn’t. Tell me again how much you don’t know the law.”

    Oh, I know IP law; more importantly (for this thread) I also know software dev. If you knew both IP + SW you would know that the patent system has been sorely (and uniquely) abused through overreaching software patents (and not just by NPEs). Of course, if one is truly ignorant of the law then one would not be much of a shill . . . so perhaps you’re not a shill after all, instead just ignorant of the nuanced intersection of law + tech but don’t know when to admit lack of SME.

    “[A]nd it is common knowledge tha thte arguments used by those against software-patents are the same as those used against patents in general.”

    Odd statements about ‘common knowledge’ aside, a robust understanding of both IP + SW is required to appreciate the nuance involved here; ignorance may delay nuance but obtuseness forbids it. Your inability to appreciate acknowledge the unique world of SW does not strip it of its unique nature. Those of us living in that arena retain our understanding regardless of the non-dev-world’s ability to parse it.

  7. Thanks Leopold – the software itself was an over-reach, and it is common knowledge tha thte arguments used by those against software-patents are the same as those used against patents in general.

    Phhhfft. (watch your step)

  8. I was not addressing the actual merits,

    Gee, there’s a surprise.

    but rather even if for argument’s sake one patent is bad does not support the over reach as suggested by Nunya.

    Yeah, kind of like the way anon over-reached when he accused Nunya of wanting to abolish IP law in its entirety, when Nunya actually was only criticizing how software is treated.

    Try to keep up, MM.

  9. Consistency, of course, is the last thing we expect from our trolls so … no surprises here.

    Typical Malcolm mischaracterizations.

    I was not addressing the actual merits, but rather even if for argument’s sake one patent is bad does not support the over reach as suggested by Nunya.

    Try to keep up, please.

  10. anon: A bad patent is hardly earth-shattering Nunya.

    Funny that anon now seems willing to admit that Apple’s patent is a p.o.s. after he spent dozens of comments defending the claims in an earlier thread and insulting those who deemed the claims to be invalid.

    link to patentlyo.com

    Consistency, of course, is the last thing we expect from our trolls so … no surprises here.

  11. This is incredible, 101DE.

    “You know” has no legal meaning.

    The appropriate words are “courts find”.

    How do courts find that anyone knows how to do it, if it hasn’t yet been reduced to practice?

    They reach the legal conclusion of obviousness.

    That is one of the most basic things in US patent law.

    I post this not for your benefit, but for the benefit of students who may just be learning about patent law, and who have somehow gotten confused about things.

    101DE

  12. This was a great editorial right up until the word “Imagine”. Then it – like an airplane control system comprising only software (and no actual componentry) – crashed to the hard-coded ground.

  13. A bad patent is hardly earth-shattering Nunya.

    Germany very much still has IP law – try again.

    As for your grade school comment – you quite miss the point.

    As for “ignorant shilling – one of us knows the law and the other doesn’t. Tell me again how much you don’t know the law.

  14. Thankfully the international community is increasingly voiding absurdist SW patents.

    “[…] find one – just one – modern advanced society that has seen the light of your dogma and chucked IP law.”

    Sure: Two days ago Germany invalidated Apple’s bizarro-world-patent for “slide to unlock.”

    link to rawstory.com

    Hopefully you already know that utility and expression notwithstanding, the purpose of patents and copyrights are to encourage innovation, not stifle competition.

    And: “Gamesmanship, as you call it, applies to ANY patent – software or otherwise.”

    The “everybody else is doing it” excuse is no more acceptable here than it was in grade school.

    And: “ignorant shilling”?

    Pot, meet Kettle.

  15. patent protection for software is contrary to the spirit and goal of patents.

    How so?

    Do you know what patents are meant to protect? – that would be utility.
    Do you know what copyrights are meant to protect? – that would be expression.

    Until you recognize that these are two very different attributes, your posts will continue to sound in ignorant shilling.

    Gamesmanship, as you call it, applies to ANY patent – software or otherwise.

    Thankfully the international community is increasingly voiding absurdist SW patents

    Care to back that up?

    Let’s have you join the ever (non)increasing crowd of people that I send out to find one – just one – modern advanced society that has seen the light of your dogma and chucked IP law.

    One.

    Is that too much to ask?

    Thanks.

  16. IP protection via copyright or trade secret are acceptable and appropriate, patent protection for software is contrary to the spirit and goal of patents.

    When software is protected via copyright we could provide a system in which software is re-used via mechanical licenses.

    When software is protected via trade secret we could provide protection that lasts indefinitely (which appears to have worked well for Coca-Cola).

    More importantly we could avoid much of the gamesmanship of our current system in which patent portfolios are used as legal shields and lances – regardless of the validity of the underlying patents – with the concomitant burden on the courts and stifling of innovation. We can continue to promote software patents with a wink-n-nod but are not fooling anybody who understands software development.

    Thankfully the international community is increasingly voiding absurdist SW patents (e.g. nobody who understands law + SW dev would ever believe that slide-to-unlock is a valid application of the protections provided for by the Constitution; the German courts have landed on the right side of the issue) and so by hook or crook we will eventually wind up with proper IP protection for software.

    Unfortunately, in the interim we have injured entire industries by playing games with the spirit and intent of patent law. A good IP lawyer will get ahead of the curve and properly educate their clients on the proper forms of SW IP protection.

  17. Actually, the devices so wired could be left in that wired state for more than ‘an instant.’

    And thanks for the bit of nostalgia. I had one of those kits.

  18. The initial analogy to the Wright Brothers is a bit troubling. The monopolies on several airplane patents held by relatively few companies and individuals, notably including Orville Wright, and the protracted litigation between Orville Wright and Glenn Curtiss is believed to have impeded innovation in aviation. The dispute and its consequences led to a government-instituted patent pool for Orville-Curtiss designs. Unsurprisingly, it was not especially popular with the industry or the parties. Not exactly the best outcome, and not what I think you want to draw to mind when arguing for software patents, especially when one of the current concerns surrounding software patents does seem to be over impeding future software development.

  19. As we wrestle with the issue of software patents, let us not forget the Radio Shack 101 electronic projects kit of thirty or forty years ago.

    Using the wires and components in the kit, we could construct door bells, lie detectors and numerous other instances of “hard-wired” devices, any of which, if the first, would be patentable. But, because the devices were wired only for an instant, are they less patentable?

  20. NWPA: “You are very childish…and lame”

    And not very intelligent or dignified, as evidenced by his blog post.

  21. IBP: “Again, that’s not at all what I said.”

    101 Integration Expert said: And so the backtracking begins. It’s the exact context and outcome of your reasoning. You were caught in making an illogical circular argument. The record is clear for all to see as follows:

    IBP Said: “Just because something hasn’t yet been automated doesn’t mean that nobody knows how to do it.” Reply Apr 04, 2013 at 04:14 PM

    101 Integration Expert said in reply to Inviting Body Punches: “If its never been done, as in reduced to practice, at least on paper, then how do you know anyone knows how to do it?” Reply Apr 04, 2013 at 04:40 PM

    Inviting Body Punches said in reply to 101 Integration Expert…
    BECAUSE IT IS OBVIOUS, you legal genius. Reply Apr 04, 2013 at 04:56 PM

    101 Integration Expert said : That does not tell me how you know someone knows how to do something that has never been done before, even on paper. Simply saying, “ BECAUSE IT IS OBVIOUS” in all caps, is the same as saying, “BECAUSE THEY ALREADY KNOW HOW”. Complete circular non answer BS

  22. Actually MM the original topic in contention with IBP was the Court’s Integration Analysis.

  23. Ned: “NS, I agree. If I invent the new machine whose physical output varies from the old machine only in the heat it generates as a byproduct of electricity consumption, then I think that the so-called new machine is not new in any patentable sense.”

    That would depend on what you use the machine for. New use of an old machine, or an old process is patentable. But the point you and NS, and IBP have all been defeated on is that, “If the algorithm is executed by an “integrated circuit” then the algorithm is not disembodied, and therefore eligible subject matter.

    You need to admit this is correct and you were wrong, right now, before you move on to other theories.

  24. MM: “Why in he– would you need a case cite for this simple proposition?”

    Because this forum is for discussing the law, not made up theories, or subjective opinions. Therefore proper pin cites are expected of all serious commenters.

    MM: Did you also “need a case” for the simple proposition that a claim in the form [oldstep]+[newthought] is effectively a claim to the [newthought] itself?

    No, thats a made up theory with no legal basis whatsoever so you can’t provide a legal citation. Just don’t try to ever use it as a legal reference and you won’t get into trouble.

    Let me know if you need any more help

  25. Sorry Malcolm – read the linked thread. It’s archived.

    And what is the state of controlling law regarding the exceptions to the printed matter doctrine?

    LOL – You and your being busted in blatant lies. So very delicious.

  26. It seems logical to me that before any debate over such questions there must be an *agreed* upon definition of X.

    “Computer software is any set of machine-readable instructions (most often in the form of a computer program)”

    Happy?

    Business methods have been defined as well: “Business method patents are a class of patents which disclose and claim new methods of doing business. This includes new types of e-commerce, insurance, banking, tax compliance etc.”

    Happy? If you don’t like these definitions, please explain why and provide suggestions for modifications. In the meantime, we’ll continue discussing claims that more or less fit these definitions.

  27. what is the case that says that you cannot claim function at the point of novelty in a composition claim (but you presumably claim function at other points in the claim)

    Why in he– would you need a case cite for this simple proposition?

    Did you also “need a case” for the simple proposition that a claim in the form [oldstep]+[newthought] is effectively a claim to the [newthought] itself?

    Did you also “need a case” for the simple proposition that product-by-process claims don’t describe the product but describe methods and therefore are limited to the method steps used to make the product?

    Let me know. Then I’ll know how much hand-holding to provide before and after your precious “case” is presented to you.

  28. (sigh) the company you keep…

    Much like Ned seriously damaged his reputation in an instant by saying 6 was like Einstein because 6 agreed with Ned on a certain point, IBP, here, aligning yourself with Malcolm and the utter banality of Malcolm’s agenda-driven vacuous postings on 101 instantly damage your reputation.

    And while Jim Gandy may have been off on the design patent thread, Malcolm was completely lost in the weeds and evidenced even less of a grasp of the subject. You thinking he did a good job with the what just means that you don’t understand the what as well as you think you do (this of course is evident in your continued conflation and ignoring of my very straight forward answers).

    It’s a shame really.

  29. Again, that is most certainly NOT what I said, it is what YOU just said.

    Are you for real, 101DE?

  30. MM–

    While I think I understand why you go back-and-forth with this poster, and while I understand the worth of your toil, I do not envy you your task.

    I suppose it’s like my own railing against the current public sector and the fascistic and imperialistic qualities of the current US administration–it’s a hill to die on. BTW, I consider Gandy’s posting to have been a huge victory for my opinion. You did a good job there with the “what”, but entirely ignored the “why” and “how”, which are the more important questions, IMHO.

  31. “The “circular argument” is exactly the argument that you are making, 101E”

    No, I asked a very logical question that requires a logical answer, as follows:

    “If its never been done, as in reduced to practice, at least on paper, then how do you know anyone knows how to do it?”

    I will concede that “if” the PHOSITA already knows how to do it, then it “may” be obvious to try. But that does not answer my question.

    How do you know, they know?

    The only answer you and IBP can provide is to repeat the question, as the answer. This is not a valid answer. It’s circular.

  32. Possibly–but when all is said and done, as long as there is no real and undeserved injury, there is room in life for that, too…

    …Night Wiper.

  33. “The legal definition of obviousness presumes that the claim in question is new.”

    1. New use of an old process is patentable, even new use of old hardware.

    2. Meting a long felt unsolved needs and unexpected surprising results, as well as commercial success are all legal indicators a claim is Non Obvious.

    3. What’s also important to remember, is that under the doctrine of “Integration Analysis” the claim must be considered as an inseparable whole.

    Just because your 101 legal theories were annihilated by the Prometheus decisions exalting of “Integration” does not mean you you can simply move on to 103 and wave your hand and declare all business methods and software inventions de facto obvious. You have an even more steep legal hurdle to overcome at 103 than you do at 101.

  34. 101D–

    “We are discussing 103 not 101.”

    No, in my second alternative I was most certainly discussing 101.

    “So, you are saying it’s “obvious” someone knows how to do something that has never been done before because it’s “obvious”.”

    That is not at all what I said, and I’m not even going to begin to address your dismal reading comprehension skills.

    In the past, I never viewed your posts with any bias, probably because I never read them.

    Unfortunately, that has changed.

  35. We all know the king of anti-patent and particularly software is the Lemley. The man who says software has no structure, and who has his own vanity press (the Stanford Law Review).

  36. They care about making money. Right now. That’s all they care about.

    LOL – talk about your dissembling crypto-communistic tendencies.

    And to keep things real, as I have posted (and with which Dr. Noonan has fully agreed, Francis), the patent system is under attck by the far right (Big Corp) and the far left (Academia).

    RMJ just proves Goetz correct: those who are anti-software patent espouse the same policy and rationale as those who are just anti-patent.

    But please, let’s hear more of the your accusations of others of what you do (dissembling).

  37. the other extreme

    It’s actually the same extreme, but never mind.

    use a registration system.

    I suppose you can name a modern, industrialized country that has abolished its patent examination system in favor of a registration system?

  38. Because, like “a software patent”, there is no agreed upon definition so it’s pointless to talk about.

    There seems to be demand on these blogs to debate questions like the following:
    1) Is X patentable under current law?
    2) Should X be patentable? (regardless of what current law may say)

    It seems logical to me that before any debate over such questions there must be an *agreed* upon definition of X.

    The same thing applies to debates over catchphrases like “patent troll” / “non-practicing entity” / etc.

  39. Let’s go to the other extreme – and save BILLIONS (except those who are directly involved in litigation): use a registration system.

    Use a tenth of the current USPTO budget and build the world’s best information system that would actually be capable of promoting innovation (as that term was meant in the founding father’s time – and was EXPRESSLY not limited to (even arguably not even primary) to advancement of technology, but to making the sharing of knowledge key. In today’s world, the availability itself is the easy part – it’s the cross-referencing and cataloguing part that is a driver. Never-the-less, those understanding what the calll to promote actually means, would understand why “registration” should be given a very serious look.

  40. “economic importance” is a statutory requirement? How would it be determined?

    Simple. Prosecution and litigation cost money. If it’s worth filing, it’s allowable. If it’s worth suing over, it’s valid.

  41. Wow wow wee wa …Mr. Goetz’s OWN development seems to be from over a century ago.
    If Orville and Wilbur had an apparatus claim – as they surely did, but some embodiments included SW for control, they surely would have received a patent, contrary to Mr. Goetz’s assertion.

    I get the idea, but the assertion is ridiculous. I also appreciate that SW development can involve lots of hard work so I am not saying it never deserves patent rights. I’m just reacting to the particular over-dramatic and erroneous assertion that the Wrights would not have received a patent.

  42. wow wow wee wa … Mr. Goetz seems to be back over a century ago in his OWN development. If Orville and Wilbur had a decent PA, the claims would include apparatus claims (wings, motor, tail, whatever) – which is probably what was actually written.
    To say they would not have received a patent because (in some embodiments) the invention also included SW for control is unbelievably ridiculous and uninformed regarding Patents Law.

  43. Only one hypothetical application that does not exist (so that anon doesn’t get on me for discussing supposed specific applications) has “overcome” the drawings issues in any way, specifically by redrafting all their claims without nonsense describing some theoretical and nearly entirely invisible machine/product that they failed to show in their drawings, and that application has not yet issued due to not having worked its way through prosecution fully just yet.

  44. Leopold,

    I know it is spelled differently, but for some reason, the autospell feature I have changes the word to the spelling you see, and, well, I think that even you should be bright enough to figure it out.

    And that’s with me setting my expectations pretty low.

  45. How is showing me where 101E has engaged in “blatant name calling” make me a hypocrite?

    Atta boy, Malcolm. You are already ‘challenged’ enough.

    As to reputation, let’s ask Francis about that.

  46. How about you actually read what i have already posted?

    In other words, my answer is already in writing.

    It’s even archived – and I made it easy for you by providing the hyperlink
    (there’s even a bonus on that thread – let me know when you find it (but don’t burn your little fingers – again)

  47. Sorry Malcolm, I am still waiting for you to provide your answer to my directive at 7:39.

    You do kow what answers are, right?

    Do you need a translation of “Define ‘useful’?”

  48. You failed to make that point.

    Right. But if I show you where 101E has engaged in “blatant name calling” I will have made that point in an uncontestable manner.

    Are you challenging me on that score, anon? Let’s be clear. Not that your reputation is at stake. That’s already established.

  49. My what pretty dust you are kicking up here.

    Translation: “I can’t think of any reasonable response at the moment so I will simply insult you.”

  50. without anonymity

    LOL – because you would never use anonymity, huh Francis?

    Let’s try to keep this real, please.

  51. To the extent that I have always posted.

    Translation: “I lack the English skills to put my answer in writing.”

  52. “Serious question: is Malcolm the best that the anti-software patent proponents have to offer?

    Serious question: who is better and why?

  53. You failed to make that point. I have alwasy said that i am willing to play by any rules as evidenced on these boards, and I am very willing to rip off your head and hand it back to you. Nothing hypocritical about that.

    On the other hand, you do succeed (yet again) in accusing others of that which you do.

    Atta boy, Malcolm.

  54. “dude,” the problem comes from your lack of ability to be intellectually honest as you push your agendas.

    It’s a “you” problem – as I have said, I have no problem with a discusion of policy and rational – when they are properly presented as such, and not spun as existing law or fact.

    Just [shrug] and stand by as I hand you your head (yet again).

  55. Great – you know how to cut and paste.

    Now, show some capability of thought and string what you cut and paste together into a cogent reply to my 6:57 pm post.

    Thanks.

  56. “…all you have is execution of a disembodied algorithm.”

    Algorithms do not generate heat, disembodied or otherwise. However, all known methods of executing an algorithm generate heat.

    disembodied adj. – lacking in substance, solidity, or any firm relation to reality

  57. you have admitted yet another dogma toasting poin

    Are you saying that you agree with I wrote? To what extent?

  58. Define “useful.”

    Touché.

    btw: Money: 1.A current medium of exchange in the form of coins and banknotes; coins and banknotes collectively.

    Okay, then.

    Claim 1: A current medium of exchange in the form of a banknote, wherein said banknote is worth $1 US dollar.

    Eligible for patenting?

  59. Wow – the “House” argument goes back that far…

    Oh wait, the law includes the phrase “or any new and useful improvement thereof

    Oops. Svcks to be Malcolm.

    (and that’s not even riding him for his lack of knowledge concerning the differences between the protections afforded by copyright and patents, which he has repeatedly bumbled – yes, that too is archived)

  60. Serious question: is Malcolm the best that the anti-software patent proponents have to offer?

    LOL

    No wait,

    LOL LOL LOL

    LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL LOL

  61. There are no new paradigms!

    The term “computer” is 400 years old. According to Wikipedia (please refute if you have different facts):

    The Greek mathematician Hero of Alexandria (c. 10–70 AD) built a mechanical theater which performed a play lasting 10 minutes and was operated by a complex system of ropes and drums that might be considered to be a means of deciding which parts of the mechanism performed which actions and when. This is the essence of programmability.

    What “new” paradigm are you trying to defend here?

  62. LOL – of course – as is everything; as is anything.

    Now that you have admitted yet another dogma toasting point, can we stop the anti-software patenting crusade?

  63. Define “useful.”

    Touché.

    btw: Money: 1.A current medium of exchange in the form of coins and banknotes; coins and banknotes collectively.

    At least as patent eligible as the famous Morse claims – the ones actually granted and held valid.

  64. the point is not “patentable,”

    The discussion is about obviousness.

    See your li’l bro 101E: “you are saying it’s “obvious””

    See that word “obvious”? It’s an issue of patentability.

    Troll another blog, s-ciopath.

  65. discuss policy and the rational justifications

    I have no problem with discussion of policy and rational – when they are properly presented as such, and not spun as existing law or fact.

    In case you haven’t noticed.

  66. Because scatalogical, racial and sexual innuendoes are just so ‘classy’

    I’ve never said they weren’t. Key fact. Ponder it.

  67. always a sequitur (a conclusion of an inference)

    LOL – a universal answer regardless of the question.

    So very, very helpful, 6.

    (tell me, mr. homeless, where do you think Prof. Crouch’s tracking system would indicate the computer that you are using is located?)

  68. Serious question: is Martin Goest the best that the software patent proponents have to offer?

    I think it may be the case that he is.

    But do the software patent proponents think they have a better spokesperson? Like a spokesperson who is willing to defend the sort of claims that anon, 101E, Quinn think are worthy of patent protection? If so, who is that person? I’m extremely curious.

    I recognize that it’s entirely possible, of course, that Martin’s arguments are the sort that very few people would be willing to embrace in any meaningful sense without anonymity.

    Do let me know who the present-day “experts” in this area are. David Kappos perhaps?

  69. You mean, besides it being the law, right?

    In case you haven’t noticed, anon, people here like to discuss policy and the rational justifications for patent laws, whether those patent laws are yet to be passed, whether those patent laws are currently in force, or whether those patent laws have been forgotten (for good reasons or for other reasons).

  70. Tell me how a disemodied anything generates heat.

    Careful – see MPEP 2101 (factually misleading), as well as 37 C.F.R. 1.91 – the Office does require a working model for such a device.

    And you first – I insist.

  71. based on the purely functional claim

    Blatant Lie Alert.

    or B-claims

    LOL – what was the controliing law affecting the exceptions to the printed matter doctrine that you so brilliantly and selflessly volunteered as an admission?

  72. “The PTO make us jump through hoops for software patents that they don’t for hardware, and that’s what’s wrong.”

    I agree, you should file a watchamacallit “arbitrary and capricious” nonsense lawlsuit in an attempt to end this having to jump through hoops and thus inadvertently end the PTO’s issuance of software patents for good.

  73. otherwise old… into a patentable method

    Nice. But the point is not “patentable,” but rather “patent eligible.”

    See the comments on the 50-year old battle thread:

    link to patentlyo.com

    See also Prometheus (9-0 baby) for the trashing of the “WHATEVER” argument.

  74. Since thinking generates heat, you must believe that everything is embodied.

    The commenter Les has indicated without reservation that mental processes should be patentable (under the existing statutes).

    I’m not aware that anon has ever repudiated that position in an umambiguous manner. I certainly have. I’ve little doubt that greater than 99% of the educated earth’s population also agrees.

    But you know how these t—b-ggers are.

  75. “economic importance” is a statutory requirement? a constitutional requirement? How would it be determined?

  76. If I invent the new machine whose physical output varies from the old machine only in the heat it generates as a byproduct of electricity consumption, then I think that the so-called new machine is not new in any patentable sense.

    It’s also not patentable based on the purely functional claim you have described. If the only difference between your device and the prior art was that it generated heat more efficiently than any other prior art device, the structures responsible for that difference must be described. And by “structures” I mean structures, not so-called “electronic structures” which are methods in legal fiction clothing.

    This whole tangent is rather amusing. What percentage of computer-implemented claims (methods, “systems” or B-claims) include data about improvements in “heat reduction” relative to the closest prior art in their disclosures? That’s right: exactly zero.

    Once again, we see the software patent propenents pretending that they actually care about promoting progress. They don’t care about that. They care about making money. Right now. That’s all they care about.

  77. Nah, I’m a homeless guy, but if I was then I would be part of the problem!

    And the fact that the government, and government in general, is the problem, not the solution, is always a sequitur (a conclusion of an inference) when we’re discussing changing something about the government.

  78. You first.

    Execution does not embody a disembodied algorithm. “A-B” is a disembodied algorithm as it has no relationship with anything in the universe. Executing it does not embody it. E=mc^2 is not a disembodied algorithm as it expresses the relationship between non-abstract concepts like energy and mass. (I’m not saying that it is patentable, by the way).

    Since thinking generates heat, you must believe that everything is embodied.

  79. simply holding them invalid

    You might want to provide a legal basis for that.

    Especially as Malcolm has voluntarily admitted that “configured” to is structural, his post here merely falls to the “blatant lie” category.

  80. Plain fact: hardware is equivalent to firmware and is equivalent to a software.

    Depends on how they are claimed.

  81. MM, why not punish these folks by simply holding them invalid. If they were not wise enough to also include MPF claims in their set of claims for completeness purposes, that is their call and their malpractice.

  82. If left unchecked, such acts really diminish the professionalism and integrity of the blog, and distract from the discussion.

    Hmmm. Perhaps a visit to the archives would be refreshing at a time like this.

    Nah. I think our memories are better than that.

  83. 101, there is an “assumption” that an integrated circuit operates on physical inputs and generates physical outputs. Take and analog integrator. It takes a signal, and generates an output equal to the sum of the inputs over time. An analog multiplier has two signals as inputs. The output is a multiplication of both, but it too is a signal.

    If the programmed computer would similarly operate on inputs and outputs, we would not have disembodied algorithms. A programmed computer would be equivalent to a circuit in context, or if implicitly used ADCs and DACs.

  84. So, you are saying it’s “obvious” someone knows how to do something that has never been done before because it’s “obvious”. Well, you do not have to be a legal genius to know that’s a circular argument and not logical.

    I don’t think that’s what IBP is saying. He’s saying the merely tossing in words relating to “computer-implemented”or “automating” and/or “processor” and/or “controller” etc are not enough to turn a method that is otherwise old (e.g., “identifying available real estate”) into a patentable method. That’s because the method is old and using computers to automate data processing is old, and to the extent the claim merely recites steps (1) necessary to perform the automation or steps that (2) anyone wanting to automate the process would consider optional unless the only reason for including those steps would be to avoid anticipation, then that method doesn’t merit patent protection.

    The legal definition of obviousness presumes that the claim in question is new. The entire point of addressing obviousness is to prevent the patenting of new methods/compositions that are technically “new” but are still not worthy of patent protection.

    The “circular argument” is exactly the argument that you are making, 101E (“if it’s so obvious, why hasn’t it been described before”). This has been explained to you before, dozens of times at least.

  85. NSII,

    Try to think a bit before you post.

    If something is generating heat, there is no way you have a disembodied anything.

  86. Claim 1. A machine configured to fly in a controlled manner farther than any other previous machine, wherein said machine comprises (1) wings and (2) a controller.

    2. The machine of claim 1, wherein the machine comprises a communication device, wherein said device is configured to transmit and receive communications to and from said machine and to and from a ground transmitter.

    3. The machine of claim 1, wherein the machine comprises a human with a last name beginning with the letter ‘W’.

    PROMOTE THE PROGRESS!!!

  87. Patent, the genius of patents is that they publish what were formerly kept as trade secrets.

    Now even more true under the AIA. What’s new to you is still new.

  88. The PTO make us jump through hoops for software patents that they don’t for hardware, and that’s what’s wrong.

  89. NS, I agree. If I invent the new machine whose physical output varies from the old machine only in the heat it generates as a byproduct of electricity consumption, then I think that the so-called new machine is not new in any patentable sense.

  90. Night, computers that simply consume electricity are as useful as heaters. Why don't you grow up and acknowledge that heat generating computers are not eligible as new computers. They must do something new.

  91. “If the purpose of the circuit is to generate heat, that is useful. However, if heat is only a by-product of processing the inputs and outputs, then all you have is execution of a disembodied algorithm.”

    If the algorithm is executed by an “integrated circuit” then the algorithm is not disembodied.

  92. IBP: “if it is correct, “making money” is not a specific, substantial, and credible utility as required by 101.”

    We are discussing 103 not 101. And since when is making money not useful?Besides, processes that improve quality, productivity and efficiency are what lead companies to profitability (making money). (See W. Edwards Deming – on that.) And such processes, and improvement of processes, are not only useful, and therefore meet the utility requirement under 101, they also are patentable under 103.

    IBP: “This is incorrect. In the alternative, if it is correct, they have done it already, just not on a computer, not all at once, or on a computer, but slower.”

    Your above statement is incomprehensible. The reason why is that the reader can’t determine clearly if you are agreeing, or disagreeing with the argument at Apr 04, 2013 at 04:01 PM and why. Is English your second language? Seriously.

  93. IBP: “BECAUSE IT IS OBVIOUS, you legal genius.”

    So, you are saying it’s “obvious” someone knows how to do something that has never been done before because it’s “obvious”. Well, you do not have to be a legal genius to know that’s a circular argument and not logical.

  94. If the purpose of the circuit is to generate heat, that is useful. However, if heat is only a by-product of processing the inputs and outputs, then all you have is execution of a disembodied algorithm.

  95. Besides IBP, what I said about “Integration”, WAS in Diehr, as proved by my Court citation(s). If you claim that it is not then you need to show your reasoning and provide some support. Like, for example, quoting a passage from Diehr that is opposite of, or contradicts my “Integration Analysis”. This is the way intelligent, educated, professionals engage and discuss and debate an issue. Anyone can call someone names and/or simply shout, you are wrong.

  96. IBP Said: “I’m not saying that what was said in Diehr was gobbledygook, I’m saying that what YOU said was gobbledygook,”

    101 Integration Expert: Sorry, you are going to have to be more specific.

    For example, what is it that you want the reader to believe, or understand?

    What specifically in my “Integration Analysis” do you consider gobbledygook, and why?

    Otherwise, it does appear you have no true point to make, and/or have a reading comprehension problem that you are trying to mask by making accusations.

  97. Inviting Body Punches said “101 Defecation Expert”

    Dennis can you please say something about this blatant name calling? I have seen you step in and comment when people post under different monikers but such pure insults are much more serious an offense. If left unchecked, such acts really diminish the professionalism and integrity of the blog, and distract from the discussion.

    Thank You

    101 Integration Expert

  98. “In many areas of information processing, we know how to do it, it just isn’t fast enough for practical implementation.”

    If you can’t practically implement it, for whatever technical reason, it’s obvious you simply don’t how to do it, yet. And as soon as someone starts making excuses about why something can’t be done, all they are really doing is confessing, they do not “know how” it can be done.

    “Describing the algorithm alone is insufficient, no matter how much faster it is at just crunching the numbers. It’s insubstantial.”

    No one is arguing that describing stand alone algorithms are patentable. That’s a poor Strawman argument at best.

  99. I’m not saying that what was said in Diehr was gobbledygook, I’m saying that what YOU said was gobbledygook, to the extent that it was amenable to comprehension.

  100. Yes, and I’ve done it many times.

    Which does not in any way foreclose the possibility of engaging in some thoroughly enjoyable yet gentle grammatically-based derision.

    I also find MM’s “Night Wiper” to be funny every time I see NWPA post anything.

  101. Night, a circuit accepts inputs and provides outputs. Otherwise it only generates heat.

    I think a circuit that only generates heat is not eligible based on lack of utility.

  102. Inviting Body Punches said : “Once again, 101 Defecation Expert is wrong.”

    Can’t you act like an adult and express your opinion without childish name calling and insults? This type of behavior is really uncalled for.

  103. The Wright brothers are a terrible example. It’s becoming clearer that some inventors actually got airborne before them. Janes All the World Aircraft has accepted that Gustav Whitehead appears to be the earliest powered flight, so it looks like the Wright brothers were erroneously awarded patents.

    In any event, those patents stalled aircraft development for a number of years, and are a fairly effective demonstration that patents don’t “promote the Progress of Science and useful Arts”.

  104. Patent, the genius of patents is that they publish what were formerly kept as trade secrets.

    It is the further genius that innovation is protected, justifying the cost and expense where innovation is easily copied.

  105. “Just because something hasn’t yet been automated doesn’t mean that nobody knows how to do it.”

    If its never been done, as in reduced to practice, at least on paper, then how do you know anyone knows how to do it?

  106. 101 Defecation Expert: “While it is obvious to want to automate any task or process, it’s NOT obvious HOW to automate every task or process, or every task or process would be automated already.”

    Wrong on both the premise, the conclusion, and the required nexus between the two.

    In many areas of information processing, we know how to do it, it just isn’t fast enough for practical implementation. Greater speed relies on faster hardware, and potentially more efficient control of that hardware.

    To the extent that an increase in speed of a process can be achieved, if even only through an improved processing algorithm, my feeling is that such an increase in speed would confer patentability, if and only if the process itself satisfied the SS&C utility criteria.

    Describing the algorithm alone is insufficient, no matter how much faster it is at just crunching the numbers. It’s insubstantial.

  107. 101 Defecation Expert–

    “Since every business wants to make more money, faster, and with less cost, any business method that would obviously accomplish that goal, would have been done already.”

    This is incorrect.

    In the alternative, if it is correct, they have done it already, just not on a computer, not all at once, or on a computer, but slower.

    In the further alternative, if it is correct, “making money” is not a specific, substantial, and credible utility as required by 101.

  108. “101–I read what you posted, or at least I tried. In the words of the SC, it was gobbledygook. Your integration was mere defecation.”

    Inviting Body Punches, The Supreme Court has never said “Integration” was gobbledygook. My use of “integration” comes direct from the authority of the Supreme Court. So please tell me why in your opinion the following citation on “Integration” from the Supreme Court is “mere defecation” ?

    “In Diehr, the overall process was patent eligible because of the way the additional steps of the process “integrated” the equation into the process as a whole. 450 U. S., at 187. These additional steps transformed the process into an inventive application of the formula. ) [MAYO COLLABORATIVE SERVICES v. PROMETHEUS LABORATORIES, INC 566 U. S. (2012) 3 Syllabus] (Emphasis Added)

  109. Once again, 101 Defecation Expert is wrong.

    Just because something hasn’t yet been automated doesn’t mean that nobody knows how to do it.

  110. 101–I read what you posted, or at least I tried.

    In the words of the SC, it was gobbledygook.

    Your integration was mere defecation.

  111. “most business-method patents, should never have been issued because of their obviousness.”

    Since every business wants to make more money, faster, and with less cost, any business method that would obviously accomplish that goal, would have been done already.

    So, if an entrepreneur invents a new process to make it, do it, or run it, faster and cheaper and at a higher profit, another business should not have the right to come along and steal the process, under the rationale, it was obvious to invent. Only outright thieves, and socialist/communist sympathizers would harbor such a view.

  112. YOU need to have reasons to persuade people to change the law.

    (Just a little clue as to how this thing works)

  113. It’s common sense that patents increase innovation. The ancient Romans and Greeks, and the Eskimos did not have patents, therefore they never innovated.

    People need to be filing more patents.

  114. “Right now the status quo appears to be that any computer-implemented method which recites “new” content going in or out of a computer or going to or from a “new” source/destination is patentable. That’s absurd”

    Well, if it’s automating a process, that’s not absurd, that’s called “progress”. The thing that is obvious is that the world wants it’s tasks, from the simplest to the most complex, to be automated. So, it’s a safe bet that if someone knew how to automate any task it would be done already.

    Therefore when a software engineer succeeds at a new automation of an old task, the “process” of automating the task is non obvious.

    The “motivation” may be obvious, but we do not grant patents on motives, we grant patents on inventions that promote the progress of the useful arts.

  115. “He now wants us to ditch 101”

    Since software is an integrated technological process, ( an argument you have personally failed to overcome) I do not think there is any question under 101, as long as it’s new and useful. So 103 seems entirely appropriate.

  116. In at least 10 applications suffering from this exact problem I have yet to have one overcome the drawings issue and proceed to issue of their claim. Only 2 even tried.

  117. “What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness.”

    While it is obvious to want to automate any task or process, it’s NOT obvious HOW to automate every task or process, or every task or process would be automated already.

    Obviously, it would be wonderful to have automated flying cars, like the Jetson’s. But apparently no one has the skills or knowledge to make that happen yet.

    So, if some brilliant software engineer actually invents a software process that automates flying cars, and no one else in the world has been able to create such a process, despite the long felt need and desire for such a process, that invention is de facto non obvious.

    And so it goes with ALL software that succeeds at automating a process or task that has never been automated before.

  118. That is not true. See Diehr. Plus, if you notice, the SCOTUS has backed off their everything that has a number in it is a natural law. They have moved into maybe the 12th century in terms of their science thinking.

    But, given how Obama is stacking the Fed. Cir. with people that have no science background or patent law background, I have no doubt that we will go back into the medieval thinking.

  119. Goetz: “Imagine that the digital computer and the stored computer program (software) existed in the late 1800’s. If so, there is a high probability that the Wright Brothers would have used a computer program to control the three-axis control system in their 1903 Flying Machine patent application. If they did, we would call the patent they received in 1906 a software patent.”

    What a fricken strawman argument. No one that I know of, truly, is arguing or has argued that a programmed computer applied to a useful end is a software patent. What is under discussion only, to my knowledge, are patents on software that simply calculate, or that have physical data gathering steps such as in Mayo followed by a calculation. The calculation is the end product of the claim, not its use to actually do something useful.

    Benson made it clear, I think, that a claim to a calculation without any practical use preempts all practical uses of something that is not eligible.

    Diehr made it clear that when such a calculation is applied to a process otherwise eligible, the line is crossed into patentable subject matter.

    Since there is no serious debate about Diehr or cases like Diehr, the advocate of software patents are clearly trying to reverse Benson.

  120. Regardless of whether something “is” the law today, when you’re debating whether it “should” be the law, you need to have reasons if you want to persuade people.

  121. MD: “Does it include methods of selecting a lawyer, for example.”

    Well, since it included methods of selecting groceries I don’t see why lawyers would an exception.

  122. I probably should know this — but what is the case that says that you cannot claim function at the point of novelty in a composition claim (but you presumably claim function at other points in the claim)? Thanks

  123. — 101 AND 103 are available in EVERY instance in EVERY application. — Yes, but it comes back to exactly what is disqualified under 101?

    Maybe CLS Bank v. Alice when it issues will help (or maybe it will just muddy the waters)

  124. — The proper question is whether it’s obvious in light of the existing manual process. — I agree

  125. My opinion of Malcolm is well documented and known. However, he is sounding more and more persuasive to me with each passing day. I’m not sure if that’s a result of him simply becoming more persuasive, or a result of the increasing ridiculousness of those Malcolm describes as patent fluffers. I’m thinking it’s more likely the latter, but I agree probably 99+% with Malcolm’s political views, so maybe that’s factoring in too.

  126. “And invite a killer objection to your drawings which of course will not show the software loaded into the memory of the computer, or probably anything special about the ‘special purpose’ computer, or the firmware.”

    A killer objection? Lulz. You continue to amuse.

  127. “What a great claim to eliminate your 101 worries.”

    And invite a killer objection to your drawings which of course will not show the software loaded into the memory of the computer, or probably anything special about the “special purpose” computer, or the firmware.

    Not to mention a 101 anyway for whatever abstract idea you’re trying to preempt.

    But, if you draw it all out, meh, you might could slip by.

  128. “Some of us must on a daily or weekly basis charge clients for the creation of protective patent specifications against the anti’s (zealots, madmen, bab00ns.) ”

    You mean like you “and” Mr. Goetz here? Or just like “you” aka Mr. Goetz? TBH, I don’t think you “must” do this thing that you “and” Mr. Goetz are doing. You could, for example, go be a greeter at walmart and actually do something productive with your time.

  129. “that today’s anti-patent zealots ”

    “who preach ”

    Hello NWPA.

    ” But Microsoft could invent a new way to do voice recognition and language translations and at the same time retain the cadence of the speaker’s voice.”

    Or they could just write some new software… like they did.

  130. If the only reason you can think of to justify software patent protection

    You mean, besides it being the law, right?

  131. Well, you have responded to yourself so AAA JJJJJJJJ will not take your seriously and believe that you are vain.

  132. worry that the courts are going to someday construe “processing circuit configured to …” language to be a means-plus-function limitation

    Bet on it.

  133. What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness. With that I heartily agree.

    Seriously, I can’t think of any “zealots” who have not been pointing out the obviousness of “many” software and business method claims all the time.

    If the invested proponents of software and business method patents were at all concerned about these patents “that never should have been issued because of their obviousness”, why aren’t they advocating more strongly for changes in the way these patents are examined? And by that I mean not just hand-waving that “examination needs to be improved”. Where are the details about why “many” software and business method claims are obvious?

    For instances, it’s ancient and well-known that computers can receive, store, “process” (i.e., rank, sort, correlate, “determine”, etc) and transmit information relating to any subject. Any and every claim that merely recites those steps in general terms is per se obvious, regardless of whether the information received or transmitted is “new” or “useful”.

    It doesn’t matter if it’s data about “real estate availability” or “Johnny’s credit card” or “legal skills” or “commercials viewed” or “commercials not viewed” that are being “processed”. It doesn’t matter if the information is coming to or from a phone or a laptop or a “hand-held device” or a “robot car” or a “satellite” or any other manufacture that isn’t patentable on its own merits. It’s still per se obvious. All of it. There are no “unexpected results” because these so-called “inventions” have no utility other than what anyone reading the claim (regardless of their skill) would expect them to have.

    Note that I’m not saying here that “all software” is per se obvious. I’m just saying that a great deal of what is presently being pursued and granted are certainly per se obvious once some reasonable lines are drawn. Right now the status quo appears to be that any computer-implemented method which recites “new” content going in or out of a computer or going to or from a “new” source/destination is patentable. That’s absurd. It was always absurd and the failure of the PTO and the courts to recognize that early on and apply the law reasonably and consistently is how we got into the present mess.

    It just amazes me that software patent “inventors” want to be taken seriously when they assert that they are the lifeblood of the US economy when they are simultaneous telling us that the level of skill in the art in their field is, judging from their own admissions and from the laugh-worthy j-nk they file on, darn close to zero.

  134. “But that would be catastrophic for the Software Industry, where many of their inventions are software only. This industry is made up of thousands of companies and is recognized as one of the top three manufacturing industries in the world .With annual worldwide revenues well over $ 300 Billion this industry needs (and wants) just as much patent protection as other industries.”

    You should probably provide some support for sweeping normative statements. If the only reason you can think of to justify software patent protection is that the software industry is big, then you don’t really have a reason…

    Some debatable reasons I’ve seen are (1) that software patents grease the wheels for early-stage investment; and (2) that software patents protect a “natural right” to the fruits of one’s labor.

  135. “Software configured” renders a machine transformed into a new machine (and thus, no longer a GPC). See Alappat

  136. NO!!!! New technology must be understood in terms of old technology!!!!! There are no new paradigms!

    End of sarcasm.

  137. What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness.

    Let’s also eliminate the phrase “a business-method patent” from our vocabulary.

  138. I think that makes for a fine claim element, NWPA, and I use that structure all the time. I try to stay away from an apparatus claim having only a single element of this type, however, for a couple of reasons. One, the claim is too reminiscent of the claim in In re Hyatt – I worry that the courts are going to someday construe “processing circuit configured to …” language to be a means-plus-function limitation, which would then make your claim a single-means claim. Two, if the method your processor (whether it be a general purpose computer with software or custom hardware) is carrying out can be implemented without reference to anything outside the processor, then I worry that you’re just claiming a series of mathematical operations, rather than a practical application of those operations. Usually you can add some other feature, such as a communications interface, a user interface, or something, to show that the mathematical operations are being applied to something real/practical.

  139. The first thing to do is stop trying to eliminate software under 101. That will encourage better claiming and specifications.

    And, MM, try to get it through your head that 50 years of the DOJ and USPTO trying to get rid of software by misrepresentation (laws of nature for example) has caused these problems. The USPTO should be told to zip it and get your job done and stop this nonsense. And then fire the first 10 people that try to the 101 business again—oh wait—we have Mr. Community organizer as president that has nominated a bunch of “attorneys” with little or no science background to lead the nation’s innovation and science court.

  140. A circuit configured to [insert typical software configuration].

    What’s “typical” “software” “configuration”?

    You’re still claiming function at the point of novelty in a composition claim. Then you’re going to tell us that the method recited in your composition claim is “electronic structure”. That’s the same nonsense the software patent proponents have been selling us for years.

  141. Yes, a circuit includes a general purpose computer. And, a GPC is a circuit and that circuit with the software in the memory is configured to …

  142. What these zealots should be arguing is that many software patents issued by the US Patent Office, including most business-method patents, should never have been issued because of their obviousness. With that I heartily agree.

    What are you going to about it, Marty?

  143. I’m all in favor of limiting claims to those embodiments of economic importance (the public is still free to implement the inventions in their heads, with paper and pencil, using carrier waves for storage, etc.) but are you saying something like “as used herein a ‘circuit’ is defined to include a general purpose computer…”? ‘Cause that’s really bastardizing the language.

  144. Some of us must on a daily or weekly basis charge clients for the creation of protective patent specifications against the anti’s (zealots, madmen, bab00ns.) Perhaps that is why we feel strongly about this. Responding to OAs and fighting with examiners and having to eat time to put stuff in specs to protect ourselves during prosecution.

    You know, real stuff.

  145. Yes, thanks Mr. Goetz.

    The abstract thing needs to be worked on. Have you read Haliburton? It explains very well how the SCOTUS viewed processing methods as something that just enabled machines to be built like lab machines and so they didn’t want to enable them to be patentable. It was a legal fiction to get their policy goal done. It is inapplicable now to computer systems (information processing.)

  146. Re-read the article. You’re still focused on the wrong thing. It’s new and useful. The proper question is whether it’s obvious in light of the existing manual process.

  147. This is way too logical for the anti-patent zealots to understand.

    Thanks for taking the time and effort to write it up Mr. Goetz.

  148. Seriously, fellas, really spend a moment or two and fairly think about this. A claim that is broad enough to cover firmware, special purpose circuits, and general purpose computer with software in memory with the necessary specification support.

    Now, what do the anti’s do with that…..it is a brilliant claim.

  149. I recently saw a claim that made me think of the software battles:

    A circuit configured to [insert typical software configuration].

    Think this one over. The claim is brilliant. It includes a general purpose computer with software loaded into main memory, a special purpose computer, and firmware.

    What a great claim to eliminate your 101 worries. I have started using this as a backup in my software applications.

  150. Goetz has previously posted other tripe on patently-o, and none of it is worth reading.

    He now wants us to ditch 101, and focus instead on 103.

    No way. Nice try, Goetz. 101 AND 103 are available in EVERY instance in EVERY application.

  151. I think Goetz is too accustomed to writing for pipe-and-slippers-type readers.

    I have only skimmed the article, but I love this part:

    “To their credit, the Patent Office and the Courts are today grappling with how to recognize obviousness in a patent application. A very difficult challenge, to say the least.”

    LOLOLOLOLOLOLOLOLOLOL!!!!!!!!!!

    It hurts! Make it stop!

  152. I’m all in favour of ostracising the expression “software patent” if it is causing such abject confusion to so many people.

    New, enabled and not obvious is necessary but not sufficient. The ingenuity also has to be within the “useful arts”. The problem lies in deciding what that term means. Does it include methods of selecting a lawyer, for example.

  153. the Wright Brothers would not have received a patent for what is recognized as one of the greatest inventions of the 20th century.

    Somebody hasn’t read Diehr, apparently.

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