Is Software Patentable?: Supreme Court to Decide

By Dennis Crouch

50-years on, we still don’t have the answer as to whether computer programs are patentable.

The Supreme Court has granted a writ of certiorari in the software patent case of ALICE CORPORATION PTY. LTD. V. CLS BANK INTERNATIONAL, ET AL., Docket No. 13-298 (Supreme Court 2013). The Australian patent holder Alice Corp presented the following question:

Issue: Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter within the meaning of 35 U.S.C. § 101 as interpreted by this Court.

In a highly fractured en banc decision, the Federal Circuit determined that Alice Corp’s claims lacked eligibility. Because none of the opinions in the decision carried a majority, the result was that the Federal Circuit only added confusion to the area.

Alice Corp’s Patent No. 7,725,375 covers software for managing the risk associated with an online transaction essentially by using an electronic escrow service. Claim 26 recites how the system would work:

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.

The patent also claims “a computer program” for accomplishing the same result.

418 thoughts on “Is Software Patentable?: Supreme Court to Decide

  1. I think the vast majority of software should be disqualified as obvious for the same reasons I think a carpenter doesn’t deserves a patent for each new and unique piece of carpentry s/he creates. Software is a tool used to make a computer perform functions by manipulating switching/logic capabilities, not unlike the tools a carpenter uses to craft functional furniture by manipulating the physical characteristics of wood, metal and fasteners. To be sure, there is much skill involved in both software and carpentry. But are the fruits of this skill new and nonobvious to others of ordinary skill in the art? Rarely.Take a room with 1,000 software PHOSITAs and a room with 1,000 carpenter PHOSITAs and ask one of them (at random) to create a new piece of software and carpentry, respectively. Each one will use the same set of standard tools and building blocks as the rest of his/her peers would have used to create the piece. So there is nothing in the creation or the final piece that is new or nonobvious to the relevant PHOSITA. They’re just applying already known tools and building blocks to a new task.The only new thing is that someone ordered the creation of a piece of software or carpentry to accomplish a new task. But that in itself is not new and nonobvious if the final result simply uses the same tools and building blocks inherent to a computer/software (i.e., switches, logic, functions, variables, etc.) or carpentry (wood, metal, screws, rivets, glue, etc.). If a piece of new software simply manipulates a microprocessor’s logic capabilities to perform a new task, the software itself is doing nothing nonobvious (from the perspective of a PHOSITA). A piece of software that takes input X and outputs Y, instead of input A and outputs B, is no more new and nonobvious than a piece of furniture that holds trophies instead of books, fitted for one room instead of another.Where software should remain patentable is where it pertains to controlling a unique device with functionality beyond standard microprocessor switching and logic.

  2. I think the vast majority of software should be disqualified as obvious for the same reasons I think a carpenter doesn’t deserves a patent for each new and unique piece of carpentry s/he creates. Software is a tool used to make a computer perform functions by manipulating switching/logic capabilities, not unlike the tools a carpenter uses to craft functional furniture by manipulating the physical characteristics of wood, metal and fasteners. To be sure, there is much skill involved in both software and carpentry. But are the fruits of this skill new and nonobvious to others of ordinary skill in the art? I think not.Take a room with 1,000 software PHOSITAs and a room with 1,000 carpenter PHOSITAs and ask one of them (at random) to create a new piece of software and carpentry, respectively. Each one will use the same set of standard tools and building blocks as the rest of his/her peers would have used to create the piece. So there is nothing in the creation or the final piece that is new or nonobvious to the relevant PHOSITA. They’re just applying already known tools and building blocks to a new task.The only new thing is that someone ordered the creation of a piece of software or carpentry to accomplish a new task. But that in itself is not new and nonobvious if the final result simply uses the same tools and building blocks inherent to a computer/software (i.e., switches, logic, functions, variables, etc.) or carpentry (wood, metal, screws, rivets, glue, etc.). If a piece of new software simply manipulates a microprocessor’s logic capabilities to perform a new task, the software itself is doing nothing nonobvious (from the perspective of a PHOSITA). A piece of software that takes input X and outputs Y, instead of input A and output B, is no more new and nonobvious than a new piece of furniture that holds trophies instead of books, fitted for one room instead of another.Where software should remain patentable is where it pertains to controlling a unique device with functionality beyond standard microprocessor switching and logic.

  3. My proposed amendment to 35 USC 101 to Stop the Patent Eligible Subject Matter Madness:Whoeverinvents or discovers any new and useful process, machine, manufacture, orcomposition of matter, or any new and useful improvement thereof, may obtain apatent therefor, subject to the conditions and requirements of this title.Patentabilityand patent eligibility of an invention shall be considered only for each claimtaken as a whole, without disregarding any element of the claim based on theelement’s presence or prominence in the prior art, the routineness orconventionality of application of the element at the time of filing, or theelement being or embodying written matter, mental steps or processes,algorithms, abstract ideas, laws of nature, or natural phenomena. The inventive concept of a claim is the claimtaken as a whole.Subjectto the conditions and requirements of other sections of this title, patentabilityand patent eligibility of an invention shall not be negated by (a) preemptionof any subject matter by the invention, including algorithms, abstract ideas, lawsof nature, and natural phenomena; (b) a lack of a spark of genius orinventiveness embodied by the invention, beyond the conditions and requirementsof other sections of this title; (c) the invention embodying a combination ofelements known in the prior art or found separately in nature, so long as theinvention satisfies the conditions for patentability of sections 102 and 103; (d)implementation of the invention in a computer, computer readable media, or asystem including a computer; (e) an inventive concept embodied by less than awhole claim in its entirety; (f) consideration of any limit the patentedinvention would place on use of the invention; or (g) the invention comprisingintangible or transient effects so long as a useful result is produced.

  4. Being non-American, I have a question: to what extent the Supreme Court is bound by the “questions presented” by the party who requested “certiorari”?In my opinion, the core question to be answered to decide whether Alice’s patent is valid is whether any technical implementation is sufficient to make this business method (the involvement of a trusted third party) patentable.Conceivably, the use of a machine might not be sufficient either.In Germany there is the famous “flight cost minimisation” case (published in English in IIC 1988, 538) which is about mechanical equipment serving a business purpose.Eventually one may argue that all patented inventions serve a business purpose (if only because they are supposed to be “useful” by § 101).Of course, I am not advocating unlimited business method patentability, but this type of reasoning IMHO shows that perhaps different arguments should be used than “per se” objections against software patenting (e.g. due to the alleged mathematical nature of computer algorithms).

  5. I hope they’ll keep “business method” distinct from “software” – too many articles and blogs conflate the two, treating them as if they are interchangeable. Most business methods are implemented in software, but the overwhelming majority of software inventions are not for business methods.It seems that many of these cases make a decision about the patent eligibility of business methods only by discussing the patent eligibility of software. Such leads to mangling the jurisprudence around software inventions and gives no structure for analyzing (or even defining) what is a business method.Personally, I believe business methods, under some proper definition, should not be patent eligible, while software more generally should be patent eligible: so long as it is not implementing a business method.Alice v. CLS Bank is about a business method – it’s not the right place to define the patent eligibility of software more generally.

    1. The law according to David Andreasen has been noted. The rest of us will continue to use the U.S. code which recognizes that business methods – as a category – are perfectly patent eligible.

  6. When will the SCOTUS decide if the AIA is even constitutional??? That’s maybe the most important question of the next decade, since millions of future inventions (and the future of innovation in America) will depend on this decision. If it is Constitutional, then the U.S. will soon become like China, India and at best Europe, with regard to future innovation.

    1. Not sure what your point is, TTS. What exactly are you thinking is the unconstitutional part?Added here since I cannot comment to a post under “consideration.”Can you be more specific, TTS?I do not buy the “First To File” constitutional argument that you merely hint at. Prior to the AIA, so-called secondary inventors were fully ‘constitutionally’ allowed.Not necessarily disagreeing with you as to the effects of rewarding Big Corp, but I am looking for actual Constitutional basis for your position. On its face, “First To File” applies across the board.I won’t get you started with Cyber theft, since that is not a part of the conversation, at least you have not tied it in yet.Your turn:

      1. Almost all of it, but especially the change to “First To File”. The Constitution is absolutely ‘crystal clear’ as to who should be awarded a patent and why … “to promote …”. The AIA discourages future independent innovation and rewards large corporations and multinationals (that essentially paid for and wrote the bill, of course). The AIA would be a complete joke, if it didn’t have such serious implications. Our Constitution was drafted to give all American’s EQUAL* rights when it came to ALL constitutional rights (including patents) and the framers did not care one iota what England (or Europe) wanted. So, I don’t think the Founders would have been happy with the AIA simply “bowing to the wishes of the Europeans and Japanese” when it came to changing our longstanding – and commercially proven – patent system. This complete Congressional capitulation in the name of “harmonization” cannot stand as being constitutional and our current system discriminates (financially) against those of “ordinary means” in favor of those with “unlimited means”, especially when it comes to IP rights. There is already one challenge being made to the AIA and I am sure there will be many others.(*Except, unfortunately, to native Americans and slaves – later fixed)And don’t even get me started with regards to the AIA and cyber-theft of IP … Do members of Congress and the President even know what cyber-theft is and how it works (without victims even knowing)?! the Founders even protected (actual) inventors from that threat, even though they were not aware they were being so prescient at the time (kudos to them)! Also see what is being decided – in the courts – in regards to NSA spying and the 4th Amendment and before this, their recent decision with regards to the overwhelmingly supported DOMA. If the AIA gets reviewed by the Supreme Court, I believe there will be a better than 50/50 chance it will be struck down (at least if I could argue the case), So if you are an inventor, keep all those records and witness statements (they could still come in handy) and if you are a patent professional you had better advise your clients to do so, otherwise there could be hell to pay should the courts toss out the AIA (as it should).

  7. Hmm, it seems everyone stuck on the word “new” in 101. But 101 also asserts the patent-eligibility of an improvement on an old machine. While the “newness” of a machine created by adding new software to an old machine is somewhat disputable, the fact that this addition represents an improvement seems quite indisputable, since functionality previously not present has been enabled. So why all the conondrum???

    1. It depends on whether you consider a computer with software to be a new machine or the same machine with different instructions.

      1. Already settled NSII – see Alappat.add: me1398 – sorry, but no such thing as a programmed general-purpose computer, as once a general-purpose computer is programmed, it is no longer a general-purpose computer – by definition.And this is a FACT that you need to accept.

        1. A Federal Circuit opinion does not make an issue “settled”. Does your opinion on an issue immediately confirm to court opinions? me1398 asked about differences of opinion on the meaning of 101. I answered.If I’m talking about the current state of the law, you’ll know because I’ll say so. I hope this helps.[Addition]The Supreme Court isn’t bound by Alappat. see Constitution

          1. The Supreme Court had the chance to overrule Alappat and did not, and in the first case after the Supreme Court told the Court of Appeals Federal Circuit to rethink its 101 jurisprudence, Alappat was reconfirmed.The Court of Appeals Federal Circuit is the court anointed by Congress to bring order to Patent Law and the law as stated by Alappat is controlling law. You are not free to disregard it. Period (so in that sense, yes, it is settled until it becomes unsettled by a higher power).So NSII, unless you can do better, my point prevails. Your answer to me1398 is not correct.

            1. Do you know what settled means? Does your opinion on an issue immediately confirm to court opinions?”If I’m talking about the current state of the law, you’ll know because I’ll say so.” Was this ambiguous? Is the Supreme Court bound by Alappat?

              1. Do you know what settled means? Even Supreme Court decisions become unsettled. The law under Alappat is settled enough for the point under discussion.If you want to dance with angels on the heads of pins of law that may someday be, then such should carry the label of pure conjecture or suffer the comments (rightfully) as such as mine.(btw, your answer to me1398 did not contain the word ‘settled’ – so your grousing here is without merit)another down vote when I am 100% correct – LOVE it.

                1. I didn’t bring up settled. You did, and for reasons that are not readily apparent. Instead of responding to the question that was asked, you changed the question and then offered the misleading response “Already Settled”. It is your opinion that “Alappat is settled.” Will you ever learn that asserting something doesn’t make it true? Don’t bother, I already know the answer.

                2. It’s not a matter of my asserting anything. What I do speak is absolutely correct.Unless you can show that I am somehow incorrect, all that you are doing is drawing attention to the fact that you are incorrect, and then not knowing better than to not draw attention to the fact that you are incorrect.Maybe you already knew that – doubtful as that would make you both an imbecile and a fool.

                3. No.[Edited]I don’t want to modify my response, but I want to make sure that you recognize that I’m not agreeing with you. Imagine me shaking my head dismissively.

                4. Shake your head all that you want – your disagreement is quite immaterial as my statements are 100% accurate.

                5. “See ↑”See what? Your non-answer from previously (which remains insufficient)?NSII, your posts are most disappointing – stop trying so hard with angels on the tops of pins and use some real honest to goodness current law in your positions.

                6. Are you going to actually try to present some logical and legal rational, NSII?How about answering the questions on the thread that you just decided were ‘moot’ (most likely because the conversation was not going how you wanted it to go)?

                7. Yes, NSII, your posts are quite that.Try again, try giving some answers. Try using the law (as it is today, not some wanna-be future other world version).Come man, if you are going to take the time to post, put a little thought into it.

                8. “Over? Did you say ‘over’? Nothing is over until we decide it is! Was it over when the Germans bombed Pearl Harbor? He.ll no! ”

                9. “The law under Alappat is settled enough for the point under discussion.”HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA. Well, I look forward to hearing about just how “settled” it is in the upcoming case. Perhaps the supremes will simply cite Alappat and affirm validity? What do you think anon? Give us a prediction. Perhaps one with heavy reliance on Alappat?

        2. “The [Alappat] majority stated that just because the claims cover a programmed general purpose computer does not makethem nonstatutory. Instead, a programmed general purpose computer becomes a new machine once a computer program is loaded into memory, and is therefore eligible for patent protection.”

        3. Yes, patent-eligibility of programmed general-purpose computers as machines is settled, but a later opinion (I forget which) said something technically ridiculous along the lines that the programming creates “special circuitry” in the general-purpose computer. I hope that the patent-eligibility won’t disappear when judges find out that this isn’t actually the case …

        4. “sorry, but no such thing as a programmed general-purpose computer, as once a general-purpose computer is programmed, it is no longer a general-purpose computer – by definition.”maybe — and I stress -maybe- — by legal definition that could be accurate, but in any practical or engineering sense that’s a ridiculous statement. with the exception of operating systems, most programs don’t “lock out” the general-purpose computer; it remains available for other uses concurrently with the program. when you add non-OS software to a general-purpose computer you still have a general-purpose computer plus the added functionality provided by the special-purpose software.

                1. Well, we could be talking about different things since we haven’t formally defined “programmed general-purpose computer” …

                2. You cannot define”programmed general-purpose computer,” ass I just explained that no such thing exists.Pay attention.

                3. me1398, you cannot define”programmed general-purpose computer,” as I just explained that no such thing exists.Pay attention.

                4. well, let’s define a “programmed X” as an X device with a non-transitory X-readable storage medium containing a program, and general-purpose computer as a CPU with at least one processing core that is communicatively connected to a data bus having a random-access memory and a hard disk drive that may serve as a storage medium … then it is defined what a programmed general-purpose computer is.

                5. I respectfully submit that these definitions are not at odds with the use of the terms “programmed” and “general-purpose computer” in the art — except perhaps that hard disk drive is too specific in excluding flash-based media but that is mere detail.

          1. You want to start with a machine and add a machine component and then claim that you have not changed the machine?Really?Must be ‘magic,’ right?

  8. I say if its new and capable of producing revenues in a free market system grant the patent because its in need of protection from espionagers called infringers and its the intellectual property of the true conciever however they need more sophisticated methods of determining true conciever and protecting his life from people like Senator Smith and Leahey and the thugs of his AIA

  9. This brings to a merciful close the debates about the precedential force, if any, of the Federal Circuit’s 5-5 “decision” in the case. Let’s hope we don’t get a recusal and a 4-4 affirmance at the Supreme Court.

    1. Of course the problem is that we are dealing with people that do not understand nor do they want to understand science or technology. Basically we know what the Stevens’ four think. (Soot in my ears already has indicated that her understanding of science is the same as Stevens). Shameful that justices would hold views that pre-date the modern information era. None of them appear to have the slightest understanding of modern information processing nor of the basic theories that underlie information processing.

      1. I’d love to hear why someone votes a down on me.Frankly, I think dealing with people like Stevens is offensive. No one in the 21st century should have to deal with justices like Kagen, Sotomayor, Ginsburg, or Breyer. Their lack of knowledge of science and modern philosophy make them unqualified to sit on the SCOTUS. It amazes me the egos these people must have to have such pride in their own thinking when they don’t understand science. Their pride flows from their power and ignorance–not their wisdom and quality of character. No judge is qualified to sit on the Fed. Cir. who doesn’t understand the Church-Turing Thesis. It was offensive to our culture to have to listen to a pencil and paper test in oral arguments of Alice. where judges were listening to and participating in a discussion of an attempt to separate pencil and paper information processing methods from non paper and pencil information processing methods. Anyone who doesn’t understand why that is a ridiculous discussion is ignorant of the information age and unqualified to sit on the Federal Circuit. Face it—if you don’t understand this paragraph, then you are unqualified to participate in any discussion on information processing. And, on this board we have to deal with the Ned who doesn’t even appear to believe that the brain is the basis of his thinking and that a “1” must somehow be represented by his brain. Furthermore, Ned, tell us the structure of a Higgs Boson.You see my tiny brained friends these arguments and Benson do not hold water to those with even a modicum of education. Benson holds water only for those whose philosophy and science is based in the year 1200.

        1. Ahhh, so what they really need is a healthy dose of modern philosophy? “No judge is qualified to sit on the Fed. Cir. who doesn’t understand the Church-Turing Thesis.”Put it in an amicus brief. I’m pretty sure they’ll all understand it. Who knows, perhaps they’ll use it to bolster their conclusion of invalidity? I mean, you can go down in history as the person that made one of the biggest homer simpson DOH moments in the history of patents. “It was offensive to our culture”Now you’re bringing culture into this? You guys will never stop this comedy will you? “where judges were listening to and participating in a discussion of an attempt to separate pencil and paper information processing methods from non paper and pencil information processing methods.”I agree that is just dumb, but they’re trying to patent protect for you NWPA. Hey NWPA, are you going to make a prediction on the outcome of the case? Invalid, valid, tie?

              1. My early prediction– It is going to be held eligible under 101. I think the Stevens 4 will not hold it 101. The right thinking 4 will hold it eligible. Scalia is the wild card here. But, I think that Scalia has enough sense to realize that Lourie is out of his mind. Scalia will smell that anything could be held ineligible under the Lourie test. I think Scalia will realize that is not the right result. Even Moore if you read her opinion realized that it would come after all sorts of areas not just software. That EE was going down the tubes as well potentially other areas.I think there is the potential for a massive smack down of the anti’s. The anti-patent entrepreneur (APE) Lemley may have a surprise coming to him when they realize that his functional claiming paper is gibberish.I mean do you even realize that under the Lourie test a refrigerator could be held ineligible?

                1. “Even Moore if you read her opinion realized that it would come after all sorts of areas not just software”Yeah but very rarely. “That EE was going down the tubes as well potentially other areas.”Oh pshaw, people in other EE areas simply amend their claims a bit and they’re all good. “I think there is the potential for a massive smack down of the anti’s”Granted. But no corresponding potential for a massive smackdown for the “pro’s”? “I mean do you even realize that under the Lourie test a refrigerator could be held ineligible?”If claimed abstractly I suppose there is some manner in which you could probably manage to mess it up. But that would be difficult, even for one like yourself that probably sits and pops out ineligible junk day in and day out.

  10. The actual case is not about software patentability at all, but about patenting business methods. If “abstract” business methods are not patentable (Bilski v. Kappos), are computer-implemented business methods sufficiently concrete to be patentable, even if the computer implementation is straightforward?IMHO the core issue is whether business methods should be patentable at all. Doesn’t a firm like Alice who is specialized in developing innovative financial business methods deserve a reward? If you believe that the answer is naturally “yes”, keep in mind that consultants usually are rewarded by a one time payment rather than an exclusive right for an extended period of time.Property rights on business methods are incompatible with a free market society.

    1. Fritz, a lot of the hue and cry about the MOT being the exclusive test submitted by the likes of IBM and its fellow travelers at the time was that the MOT would place in the question software patents, and that software was a legitimate industry. They argued that the problem with the Bilski claims was not that it was a business method but that it was not “technological.” The clear implication of that argument that is if one had tied the Bilski claims to a computer implementation, that would solve the problem.So the way the Supreme Court decided the case was to make the MOT a nonexclusive test, and state that the Bilski claims were abstract, but not why they were abstract in any clear manner. They could’ve been abstract because they manipulated abstract concepts. Are they could be abstract because they were not tied to a machine or any specific software.I think the issue really is broader than business methods per se. It really is whether they are manipulating abstract concepts and whether the claim ends in a number or something equally abstract. If it does, it is not eligible.

      1. In advocatus diaboli mode, I would argue that finding a number can be very valuable – and costly.The essence is that property rights for business methods are inappropriate in a competitive market society. Competition may cause damage to firms, and still protection is inappropriate.Communism at first sight seems very efficient, but experiments have duly shown that capatalism is a better system;)

        1. Well Fritz, if we were going to limit ourselves to business methods, another problem arises in that was identified by the Supreme Court in Bilski. Is there a clear accepted definition of a business method? Of course there is not, and that is another problem.

          1. You are right. I ventured the defintion that a (true) business method is a proces not *any* PHOSITA can accomplish. The PHOSITA should be contrasted with an inventor, whose work is inherently uncertain. In this dichotomy, businesmen executing bisiness methods are like inventors, and their “raw material” is not patentable like pure science as the raw material for inventors is not patentable.Note that this is similar to the statement that § 112 must be observed. Of course, § 112 can not replace § 101, but an (alleged) invention that cannot be described in the way required by § 112 (=sufficient for any PHOSITA) is likely to be non-patentable subject-matter under § 101.This definition may not exclude all business methods – but actually it is hard to tell since there is no other reliable definition.Somehow paradoxically, all inventions eventually serve a business purpose, if only because they are required to be “useful” under § 101 (or susceptible of industrial application in art. 57 EPC – which is the same according to art. 27(1) TRIPS). So that is not a decisive criterion.

        2. One can show that communism does not work even on the minor scale by asking a few folks to inhabit an apartment where everyone must contribute to the refrigerator according to their whim and everyone can receive from refrigerator according to his needs. It would quickly be observed that some spend all their time watching TV and laughing at the fools who work hard and fill that refrigerator.

          1. Isn’t that the “tragedy of the commons”? I was actually referring to the idea to protect businesses and gratning them exclusivity by patents, obviating the need to compete.It is very clarifying to remember that patents originated as privileges. And as early as 1623 the British understood that these monopolies were not necessarily a good thing (Statute of Monpolies).In one of his famous papers on patent politicy, Fritz Machlup explained that in the French revolution (1789) the concept of “intellectual property” was preferred over “privilege”, since the French revolution established property as a “holy and inalienable right”, while “privilege” clearly did not fit the ideas of freedom and equality of the Revolution (liberté, égalité et fraternité).In sum, it was called a property for (18th century) populist political reasons, and ti hide that a patent is actually a privilege. And privileges should be exceptions, if granted at all. Patents are not a kind of copyright for inventions, granted to inventors like copyright is “granted” to authors.

            1. The Supreme Court held in US v. Am. Bell Tel., 128 US 915, 363 (1888) that a patent for invention was not a prerogative of a monarch, but a right held by law.”The patent, then, is not the exercise of any prerogative power or discretion by the President or by any other officer of the government, but it is the result of a course of proceeding, quasijudicial in its character, and is not subject to be repealed or revoked by the President…”

      2. Ned, “manipulating abstract concepts”? What gibberish. A computer is sitting there performing useful work for real people. It takes time, energy, and space to transform the information — just like your brain. The functional claims define a definite set of solutions.Tell me what in the world does “manipulating abstract concepts” mean?

        1. The fallacy is easy to see:Can you obtain a copyright on an (abstract) thing that “manipulat[es] abstract concepts?”Just as ‘math’ is not allowed to be copyrighted, yet software can be copyrighted, and thus software is not math, and just as “1” is not software, Ned’s arguments are fallacies. That he persists in presenting fallacies when such are clearly shown to be so is a discredit that he seems oblivious to.Add: As NWPA notes, several of the items are not purely abstract. Risk, Quality and Price can each be quantified and defined so as to be non-abstract (with a measure of objectivity based on said definitions). Ned, you are simply off-base on these items (and I have explained why previously).

          1. “Risk, Quality and Price can each be quantified and defined so as to be non-abstract (with a measure of objectivity based on said definitions”You can quantify them and define them all you like, they’re still going to be abstract. By the very nature of what they are. Now, to be sure, perhaps you can redefine what they are, but then we aren’t really talking about risk, quality and price.

            1. 6, Your lack of real world experience is showing if you think these items are purely abstract.(and yes, your inability to understand the concept of ladders of abstraction will impede your ability to understand why I am correct here)

              1. My lack of real world experience? I’ve worked retail before brosefus, and managed some places, I know a few things about prices, quality and risk. If there is some secrit knowledge you think you have then you can share it with us anytime.

                1. You also mentioned something about knowing something about tables before I wrecked you and your lack of understanding about the ladders of abstraction.Since Leopold is feeling ‘helpful,’ maybe he can finally give me the sources from our discussion on the ladders of abstraction that he turned tail and ran away from. How about it Leopold?

            2. I think that’s generally right, 6. I don’t think you can redefine any of those terms so that they are non-abstract. However, it is possible to have a non-abstract method that involves particularized measurements of risk or quality or involves price values associated with particular objects or services.

              1. “However, it is possible to have a non-abstract method that involves particularized measurements of risk or quality or involves price values associated with particular objects or services.”An interesting assertion. Though I’ve never seen any evidence or even examples to back it up. I’ll grant that it is PERHAPS within the bounds of being theoretically possible.

                1. “An interesting assertion. Though I’ve never seen any evidence or even examples to back it up. I’ll grant that it is PERHAPS within the bounds of being theoretically possible.”Yeah, I kind of made it up. But I think it’s true. In any case, if I repeat it loudly, over and over again (while clicking my heels), it must be true, right?

                2. You can either do your witchdoctor’s dance or simply have our very own patent jebus proclaim it as Truth.

        2. “Manipulating abstract concepts?”MathHopeBeautyGrace of GodTime in PurgatoryRiskQualityPriceLoveAll of these are abstract. They exist in the minds of men and are represented, if at all, in computers by numbers. The manipulation of numbers manipulates the representation of abstractions. The output of the manipulation itself is abstract. Stop there, the claim as a whole is abstract.Use the output to do something physically useful, then we might have something eligible.

          1. Well, there is a lot wrong with what you wrote. But, one thing: tell us what price is?Where is it represented? How were you able to write price?

            1. Night, a process produces a number. Let’s say the number is 325. Tell me, please, why that number is useful? Is it price? Is risk? Does it represent the chances of a heart attack? Is it an alarm limit? It is a number. Simply that. What it means is something only a human can add.

                1. As ordered…?One word 6: anthropomorphicationAs ordered by WHAT: as ordered by the machine component, a manufacture of man called software.Last I checked, 101 still explicitly allows patents for machines and manufactures.(and I will remind you as I reminded Ned – the “abstract” argument is not geared to the utility aspect of 101 – you are off in the weeds)

                2. Is that a magical person hiding in the software, 6?LOL – maybe it’s like the little person in the bathroom towel dispensers that like when you wave ‘hi’ to them so much they decide to give you a paper towel…

          2. Hope, beauty, grace of God, time in purgatory, risk, quality, price, and love cannot be fully modeled by finite-state machines (FSMs), but all imperative software, all FPGA netlists, all on-die circuits of silicon gates, all mechanical steppers & gears, all hydraulics, and all belts & pulleys can be. Ultimately all imperative software is in fact describing directly (if an overtly-FSM design) or indirectly (if a traditional call-tree of subroutines modifying mutable data) an FSM. FSMs meet the MoT test twice over: 1) They are machines. 2) They undergo transformations of state.When SCotUS has said that math is not patentable, it is referring to numerical formulae or composition-of-functions thereof. SCotUS has never ruled that FSMs are “pure math” that is proscribed from patent eligibility. Indeed, because FSMs that need to be implemented via stepper-&-gear machines, via hydraulic machines, via belt-&-pulley machines, and via on-die circuits of silicon gates as electronic machines, it is quite clear that FSMs are not “pure math”. By the equivalence of FSMs among all of these mechanical, electronic, and imperative-software implementations, if Church-Turing thesis is utilized to proscribe patent-eligibility of imperative software, then the Church-Turing thesis can utilized to proscribe the patent-eligibility of all mechanical, hydraulic, and on-die silicon implementations of FSMs.

            1. Mr. Miller, we agree, think. A new machine has transformed architecture. Thus, if the architecture is changed by a program that is part of the machine, and executes as a part of the machine, then we have a new machine.The problem I have had here with some of the participants on this blog is making distinctions. What is the difference between a new machine and using an old machine? I think it has to do with the permanence of the programming. It must be physically part of the machine.I think of a disk drive that varies from older disk drives through new programming – for example, programming that encrypts the data stored on the drive. That programming changes the machine.But, if I claim an encryption process that simply calculates numbers from numbers, that process is not tied to any machine or use. The output is a number. I think that such a process is ineligible.

              1. Machine components Ned – think rivets, tires and bullets.You have FAILED to account for this aspect of our discussion. The problem is that you are not even trying to account for this with a legal position.And here you want to pick encryption as ineligible…? Truly unbelievable.Further, “The problem I have had here with some of the participants on this blog” is those that retread old and trite arguments that have had counterpoints raised against them without ever addressing the counterpoints.Ned, that would be you. Let’s take an easy (and new) one: Tell me what is the structure of the electromagnetic “space” in Morse’s allowed claim?

                1. 1. A bullet is a an article of manufacture. It is physical. What is a ‘1,” the stuff of programmed instructions. And don’t tell me about the cart that carries the bullets to the battlefield or the CD that carries the instructions to the computer. That is a red herring.2. Claim 5, marks and spaces. As described, the machine made marks, long and short, with a transverse swipe as a moving paper (tickertape) moved by the actuated marking apparatus (pen). A space was an artifact of no mark, long or short, in an interval of no actuation as the paper moved by.

                2. Software is an article of manufacture.Software requires physicality in order to earn copyright.And your attempt at dismissing as a red herring is not in accord with controlling law. There is a reason you have never discussed the exceptions to the printed matter doctrine – and it is directly on this point.Your answer regarding ‘artifact’ of nothing is more telling than you might care to imagine, as you have not answered the question I asked, instead, you have added additional items. As I first told you when you posted your fallacious “what is the structure of ‘1’ ” argument, software is not “1” and you cannot obtain copyright protection for “1.” You refuse to treat my question as to Morse’s space in the same manner as your question of “1.” That refusal is damming to your position, and I hope, truly hope that you have enough intellectual integrity to realize that.

              2. Mr. Heller, I suspect that we disagree fundamentally. What portion of the following dictionary definition of “machine” requires “permanence”? I don’t see permanence stated or implied in letter or spirit in the dictionary definition of machine. (If you think that the Patent Act of 1952 intends a different normative definition of machine, please provide it, preferably including reference to where you obtained it.) Indeed, I don’t see permanence stated or implied in the Patent Act of 1952 or in the Leahy-Smith AIA of 2011 or anywhere else in US code, neither in letter nor in spirit.Collins English Dictionary, HarperCollins:(Engineering / Mechanical Engineering) an assembly of interconnected components arranged to transmit or modify force in order to perform useful work.I say a different FSM is a “new machine”. Neither the old nor new FSM need have even the slightest iota of permanence.

                1. The permanence of which I speak is makes the programming fixed to the machine like a fixture is to real property. While the fixture is not “permanent,” it is more than some simply removable artifact. it become party of the property. That is what I am talking about when I say the programming is more than ephemera with respect to the computer. It is fixed to the computer and becomes part of it.

                2. You are being asked for the legal tie to the definition of machine Ned.You know, exactly like I have asked you countless times (without you ever providing that proper legal citation.

                3. Under your theory, any machine is eligible, even if old. Now, that is Rich’s position, and it has facial validity. That was his argument in In re Benson, after all. But there is substance and form. What appears to be a claim to a computer may actually be a claim to a program, because that is the only thing new. Substance vs. form. When the only departure over the prior art consists in something otherwise ineligible….? Well that is the question, is it not?

                4. Eligibility has nothing to do with ‘old’ Ned.That would be patentability.Two distinct concepts..Are you saying that software as a manufacture and machine component somehow is not eligible?You dribbling in the weeds on substance and form is quite off point.And Ned – you have ducked the request – yet again

                5. You continue to opine. I reiterate: where does US Code directly or indirectly support your opining? For example, you seem to be claiming that patents must be considered “real property” and to meet the definition of “real property” in US Code (or British common-law) there must be permanence, so where in US Code is there support for your reasoning that patents must be considered “real property”?

                6. 101: Machine.What, Mr. Miller, is the difference between a machine and its parts lying in bins in a factory?

                7. The parts lying in bins in a factory are manufactures.Funny that, manufactures are also covered in 101, Ned.(and yes Ned, you continue to duck – the question was on “permanence”, wan’t it – not on “101 Machine”)To your reply below Ned, you quite miss the fact that a manufacture is itself patent eligible, which makes your argument nonsensical.

                8. No doubt, Anon. But the question is where in the statutes does one find any requirement that a component be fixed to the larger apparatus. It is there. That requirement is inherent in “machine.”

                9. assembly. The difference is the assembly thereof.Ned, still you have not provided a definition of machine that has its origin US Code. In lieu of any direct or indirect statutory definition of machine, let us use this dictionary definition (from HarperCollins dictionary) that accurate captures the term of art in engineering:(Engineering / Mechanical Engineering) an assembly of interconnected components arranged to transmit or modify force in order to perform useful workWe observe that software has components that can be interconnected, hence. the assembly. Their call-trees of subroutines are arranged in order to properly place transistor gates into the correct state (i.e., electromotive force on electrons and electrostatic force on not back-filling the electron-holes). The transmittal and modification of these electrical forces on the electrons in the conductors and in the semiconductors and on the electron holes in the semiconductors performs useful work. This is work in the physics sense (work = force × displacement) and in the dictionary sense (physical effort or activity directed toward the accomplishment of something).Hence, a machine can be software (as executing on real-property imperative-instruction hardware-processor). The software need not be real property.

                10. Mr. Dan, A machine is an assembly. We agree. But is fuel part of the machine? Not really. And why? Software, assembled and part of the machine on a permanent basis, fixed to the machine, modifies the machine. I think this is a given. But, when we do not require the software to be part of the machine, where is it? Can it be located on a CD Rom in the same room? Is that sufficient? Can it be located on a server on the internet? How close to the machine must it be? But to the extent one simply says that the machine is using the software to do something useful, how is that different in kind that fuel?

                11. Software is not fuel—neither in the letter of the definition nor in spirit. Unlike fuel, software is not consumed (neither chemically nor quantum-mechanically nor by any Pac-Man munching destructively on software-instruction dots). During execution and after execution (assuming no rarity such as either self-modifying code or anomaly such as buffer-overrun worm), the imperative instructions of the software remain for another execution for as long as the DRAM is strobed. Software is not a power-plant generating electrons for input into the power-supply of the computer-machine. Electrons traversing the power-supply are in fact the fuel. The image of software in DRAM is merely the (strobe-refreshed) stasis of electron(-presence)s or electron-hole(-absence)s in the set of silicon-semiconductor gates. Placing each bit of the imperative-instruction executable software as (quite physical!) electrons versus (quite physical!) electron-holes in a silicon-semiconductor gate aggregates that software into the silicon-die of DRAM ICs in the real-property computer-machine, hence forming the **assembly** of quite physical artifacts that you so fervently seek. Just because the electrons & electron-holes in a semiconductor gate are quite small does not eliminate how physical they are.Executable imperative-instruction software being executed (as overt or implied/indirectly-described FSMs, btw) is **located** in (quite physical!) silicon-dies of DRAM ICs that comprise in part the real-property computer-machine. Such dies contain a set of silicon-semiconductor gates whose 0-versus-1 state is the fill with electrons versus the fill with electron-holes. With a microscope and a memory-map of the machine code, I can literally point to each gate that holds each bit of the software, just as if each gate was a 5-gallon bucket of paint or a 5-gallon bucket of the lack of paint (i.e., air). The quite-physical electrons and electron-holes are part of the real-property machine that you so fervently seek.A dormant copy of the executable imperative-instruction software may optionally be stored on persistent media, either online (e.g., SSD; rotating magnetic media) or offline (e.g., CDROM) or may even be optionally tattooed on a human-being’s body, but all of these recordings are nonsequitors, because only the copy in DRAM with the program-counter/instruction-pointer being advanced through it is normative and material to the software being a physical component of the real-property machine.The computer-machine is not merely “using” the software elsewhere, as a CEO sitting in the executive suite uses an employee of the corporation on the opposite side of Earth. An image of the imperative instructions must become truly (physically!) aggregated into the DRAM of the computer-machine as (quite physical!) fill of electrons or (quite physical!) fill of electron-holes in each silicon-semiconductor gate on the die of the DRAM IC.Ned, your line of reasoning regarding software leaves me with the impression that imperative-instruction executable software does not behave (physically!) as I have described above. Rather your line of reasoning makes software seem like faith in grace-of-God and the soul, as though software is supernatural without any physical representations whatsoever, and certainly not as the fill of electrons and of electron-holes in gates on an IC of DRAM within a computer-machine.

                12. DRAM? I turn power off and back on. I search in vain for your “software.” It is not there.Just how in the world can one consider software to be part of the machine under circumstances like this?

                13. Apparently, you are unfamiliar with link-loaders that retrieve an imperative-instuction executable or dynamically-linked library from persistent storage (e.g., a filesystem), then adding the base-address of the start of that executable or DLL to the address-offsets that are within the persistent image of that executable or DLL. Hence, the result is an address-patched image of the executable or DLL that is stored in (the electron versus electron-hole filling each affected gate of) DRAM. This link-loading procedure is the finishing-touch of the manufacturing the imperative-instruction software (as the final step of manufacture after the prior compiling & linking to the aforementioned persistent address-offsets) Therefore, after power-down the imperative-instruction software once again becomes aggregated as an assembly that contains the real-property computer-machine in part and the now-patched-by-link-loader imperative-instruction software in part, hence allaying your fears that this assembly was forever destroyed due to the power-down.In short, the real-property computer-machine can remanufacture the portion that was destroyed by the power-down. The real-property computer-machine is a self-modifying machine that can aggregate additional imperative-instruction-based components into its assembly.

                14. OK try this:A PC exists in Grandma’s home. You take your “infringing” copy of Pirate’s Dance to Grandma’s home, run it there, once, and then go home.The Patent Police arrest grandma and put her on trial for owning an infringing machine.Is she guilty?

                15. Did I say she was guilty? No, that was Mr. Dan who somehow thinks that the owner of a GP digital computer infringes when she sells that computer or allows her Grandson to use it. The point is obvious, is it not, that the computer itself does not infringe when used to run generic software or when it is sold.

                16. There are so many hypotheticals in your fiction that the question is unanswerable in this universe. (Perhaps it is answerable in some parallel universe where they have an entity called the Patent Police and where infringement is a matter of criminal courts instead of civil courts, but that alternate universe is not the one we live in here.)You do bring up an interesting aspect of Limelight v. Akamai (link to patentlyo.com… regarding1) how much are the currently-nonexecuting imperative instructions prior to the link-loader nonpartial infringement or nonpartial inducement-to-infringe versus2) how much the post-link-loader aggregation is needed to complete the actual act of infringement.Is the author or vendor of your alternate-universe example the infringer (due to full-fledged inducement-to-infringe) or is grandma the infringer or are they both partial infringers that requires both to act in concert to form a full infringement? Limelight v. Akamai at SCotUS will illuminate this. Stay tuned to PatentlyO.com: same Bat-time, same Bat-channel.

                17. I hope you can see that Grandma has nothing to do with any infringement. She can sell her computer and she does not infringe. She can use her computer all day long and not infringe. She does not infringe. She did nothing to violate anyone’s rights.But if the patent covers the machine and selling it or using it is a violation, why is Grandma not guilty?

                18. Grandma owns the capital asset that is the “means of production” as a miniature general-purpose factory of sorts to complete the manufacture of the link-loaded executable image in DRAM. Grandma implicitly or explicitly granted/licensed access to that capital asset.Ned, you seem to imply that Grandma has no Produktionsverhältnis (relation to the production) whatsoever, to use Karl Marx’s term of the art. A link-loaded executable-image with now-absolute addresses was manufactured on Grandma’s computer-machine. This manufacture took the software generic (with relative stand-ins for addresses of external identifiers) and instantiated a derivative work of that generic as now a custom-made instance of that executable, made specifically for Grandma’s computer-machine by Grandma’s computer-machine, as overtly intended by Grandma when Grandma expended capital to purchase that “means of production”.Here I utilize Telcordia’s/BellCORE’s highly lucid term “software generic” for the persistent software executable that has stand-in relative addresses, prior to having its manufacture completed on the end-user computer-machine. In its persistent form (i.e., stand-in relative addresses for external identifiers), the executable software is generic to all computer-machines of the same ISA and operating systems with the same ABI. It its link-loaded form (i.e., absolute addresses for external identifiers), the executable software has been instantiated as a customized extension of exactly one accumulated state of exactly one computer-machine.

                19. Mr. Dan, all I think one could prove with the above is that at one time grandma’s computer was used to run the software. But grandma infringes by making using or selling the invention, and making using or selling the computer is not going to be infringement for grandma. Second, grandma cannot contributorily infringe because a computer as substantial noninfringing uses. Finally grandma cannot have induced infringement under these facts.Which all goes to prove that what happened here was that the grandson used the computer to run the software, which is equivalent to a method. In fact software claims are claims to methods regardless that they may be phrased as claims to computers.

            2. “risk, quality, price” can easily be modeled fully enough for patent eligibility (and patentability) purposes.Bank on it (and yes, I mean literally as well as figuratively).

  11. Its very simple: to the techno-clueless all processes involving math are abstract,and computers/software that use the same are even more opaquethat’s why its frightening to think the most clueless of the judiciary bunch on patents is about to try and render a decision on this point: no matter what they do, I guarantee that like before, their decision will be clear as mud

    1. I never did understand that part in the series. He says he’s bringing patents to backwards planets, and kirk asks him if he payed royalties on the documents themselves. But he doesn’t need to pay royalties for the documents themselves, they’re freely available to all (at least in the US). What I thought was going on in the rest of the episode was that he was selling the ownership of the patent falsely. If you’re a fan, please do let me what all was going on, or whether or not it was just fictionalized to the point of comedy.

        1. I’ve seen the whole episode several times. It seems like I always end up just thinking he was fraudulently selling them ownership iirc.And to be clear this is Mudd we’re talking about, even if he was admitting to multiple wrong doings, he isn’t smart enough to know any of them are actually agin the law or not.

  12. “Whether claims to computer-implemented inventions – including claims to systems and machines, processes, and items of manufacture – are directed to patent-eligible subject matter” …..is a nicely open question. Seems to me though, that the more open the question the more scope for different answers. What do readers think? How many different answers will this open question provoke, from the fine independent minds of the individual members of SCOTUS. 9?Me, I’m hoping for guidance on the interplay between the 101 filter and that provided by 103. This is something (Art 52 EPC vs Art 56 EPC) that Europe has been arguing since the EPC started in 1973, and still is arguing. Is my hope a forlorn one? SCOTUS, help me please.

    1. EPC is a patchwork of 101 that essentially says that if you have lots of money we will say that your invention fits into a hardware definition, but we will say it is software if you don’t have a lot of money or cleverness. The EPC method is competely counter to U.S. principles. Europe uses a method of those with bucks and that are part of Europe get what they want; those without go without.

      1. “Never attribute to malice what can be adequately explained by stupidity” (Hanlon’s razor).Actually the confusion on Art. 52 EPC is very similar to the confusion about § 101.On 22/6/1978, the SCOTUS made a decision in Flook very similar to the German BGH “Dispositionprogramm” decision exactly two years earlier (22/6/76) (the EPO was not open yet at the time). And the approach of these decisions was said to be “not intellectually honest” by a UK Court (Aerotel & Macrossan 2006, nr. 27), undoubtedly unknowingly of its origin!

        1. There are differences of view, in Europe, about the respective roles of 101 and 103 to filter what gets through to issue, but no confusion about what subject matter should get through.In Europe, patents are for contributions to the state of the art in all fields of technology, but not in fields that are not technological. Whether or not there is such a contribution, in the claim in view, is tested by England under 101 and at the EPO by 103. Which jurisdiction does it right? The same debate rages here, at the CAFC.Identify the contribution then ask who do you approach, to solve the objective technical problem. If that person is a technologist, well then you have got patent-eligible matter. If a business person or an accountant, you haven’t.NWPA, Europe simply imposes a duty of care when drafting, OK. In First to File country, just make sure you are careful what you ask for. Drafting is the pinnacle of the patent attorney’s skill, the hardest job of all, and should be respected as such, not belittled as low grade stuff, less sophisticated than advocacy skills.

          1. “The same debate rages here”Not really MaxDrei, as I have often corrected you.Here, there is no technological arts test (by law). Here, the standard is the Useful Arts. A standard broader than technological, and one that includes business methods, as Congress, the Courts and the Office have long understood.Please understand and treat our law with a little more respect by recognizing the differences.

            1. When testing the eligibility of claimed subject matter, is it proper to invoke considerations of newness? Readers, I had thought that, on that issue, in the USA, there are debates about whether for patent-eligibility a “contribution” is needed. 35 USC 101 contains the word “new”. That particular word: is it or is it not there superfluous? In Europe, anon, plenty of business method claims (when drafted by skilled, well-funded EPO-savvy practitioners) meet the EPO’s “technical” test (as NWPA implies above). In the USA though, up to now, in the land of Binding Precedent, still no judicial definition of “Useful Arts”. Perhaps SCOTUS will do us all a favour and get round to it sooner rather than later.

              1. The simple point that you seem incapable of grasping (for some odd reason that I cannot fathom) is that our law is different than your law, MaxDrei. Useful Arts is broader than technical arts. The courts HAVE stated such.

            2. In Europe, non-technical subject-matter is excluded, in the US abstract ideas are excluded. The problems in applying these rules are very similar. No one disagrees with these rules in principle, but what is “technology”? And what is “abstract”? There is a similar tendency to require the technical or the non-abstract part of the application to be novel and non-obvious, which violates the principle of a “whole contents approach”.technology may seem a “you know it when you see it” concept, but think of software. One may aregu that no software is technical since software is non-tangible, or that all software is technical, because we refer to “software engineers”. The EPO actually adopts the latter idea, but the EPC dos not allow all sw to be pateted, so the EPO devised the idea of the requirement of a “further technical effect”: software is only sufficiently technical for patent if it is more thatn just simply technical.The idea of “insignificant post-solution activity” adopted in Flook is a direct copy of ideas in the German “Dispositionsprogramm” decision exactly two years earlier. Although there were no fax machnes yet at the time, the similarity is astoinishing.

              1. Frits thanks for that. Are you deliberately eschewing any mention of the EPO’s technical character (101) and technical effect (103)? I ask because the issue that interests me here is whether the USPTO should filter out “abstract” subject matter under 101 or under 103. It interests other readers here and I look forward to SCOTUS tackling it too.anon, yes, I know the law is different. I know there is no technolgical arts test and I know that some business methods are eligible. But both jurisdictions have doubts whether all new, useful and ingenious business methods should be patentable. The live question for me is, how the tools of 101, 102 and 103 should interact, to do the filtering.

                1. The “abstract ideas” exception is associated with 101, and it should be, because it is an absolute criterion, independent of the state of the art. The EPO approach testing the technical contribution under 56 EPC (the peer of 103) is wrong IMHO because technicity too is a property indepdent of the state of the art. Subject-matter that once was technical remains technical. Furthermore, testing tecnicity under 56 or 103 requires a breakdown irreconcilable with the requirement of a whole contents approach. Here the EPO used all kinds of language to hide the fact that it still requires a dissection of the application. This dissection is not just forbidden, it is also hard to accomplish in many cases. The EPO Ticketmaster case (TBoA 19 September 2007, T 688/05, 57 GRUR Int 2008, p. 509-511, [2008] E.P.O.R. 17) proposes some, eh, strange rules for that reason.At first sight, the very CLS v. Alice case seems a reason to reject a whole contents approach, since the computer implementation may be considered “insignificant post-solution activity”.Fortunately, there are other reasons to reject the patent. Other have argued already that the novelty and the non-obviousness (in their plain meaning) are questionable, to say the least. An more fundamentally, business methods should not be patentable in a competitive society.

                2. Not sure I’m following you there Frits. The EPO uses an “absolute” criterion (technical character) for its Art 52 (US 101) elibgibility filter. Only when it moves on from that, to examine novelty and obviousness patentability, does it first look at the (relative)contribution to the state of the art. Agreed?

                3. Basically you are right. But in practice the emphasis is on testing the technical contribution (in various terminology) under 56 (=103) rather than the technical character under 52(=101). Starting from the last turn of the century (IBM I+II, PBS).

              2. Thanks FritsJansen,I appreciate the parallel, but that does not change my point: Useful Arts is broader than technical arts.The US has a long history of granting patents to business methods (add: hint 6 – this is the note for ‘right from the start’ – and lottery tickets or not, the article here on Patently-O conclusively showed business method patents granted throughout the nation’s history). This was covered on this blog quite a while back, and yet, those who would eliminate business methods based on their philosophical views constantly overlook such important facts.The Supreme Court in the Bilski case wrestled directly with business methods, and had Stevens been able to maintain his majority position, would have rewritten Congress’s words that reflect that business methods are a patent eligible subject matter (under process – your further comments indicate that you want a Supreme Court view on business method patent eligibility, but you already have one). Stevens did not maintain his majority position and the law was not rewritten by the Justices, and yet, those who would eliminate business methods based on their philosophical views constantly overlook such important facts.Some commentators will (perpetually) return and attempt to portray US law as having a technology aspect of patent eligibility. That is simple error. The fact that it is the same people that continue to do so, that continue to do so after being reminded of the facts is no error.add: FritsJansen, Thanks for the comments, but I fear that there are some things getting lost in translation. One of those things concerns free market. Free has never (in reality) meant completely unregulated. That is not free market, but anarchy. Plus, the logical conclusion of that line of thought is that ALL patents must be banned – sorry, but our Founding Fathers thought otherwise – and for good reason. Your comment of “irreconcilable” is simply not correct. Even your modifier of “generally” does not work as the type of patent under consideration – the type that escaped the odious early history and remained after other types of patents (actual privileges) paints a distinguishing picture that your comment misses.Another is the thought you seem to possess that business methods simply are not meant to be included under a patent regime. Our law disagreed with that notion. Right from the start. (hint 6, see above)(add: hint 6, here is the 271 section – kindly do not attempt to misrepresent what I said – obviously the discussion on Bilski is separate in time)One key to the Bilski decision was that Stevens could not prevail because he would have had to overwrite section 271 to do so. The fact that he had other justices willing to go that far is more than just a little scary.A third item is this sense that you want to “sufficiently define” a front gate mechanism. Our system recognizes that new innovation cannot be known a priori – that attempts to “sufficiently define” such a front gate mechanism would freeze progress rather than promote it. I would remind you that business methods themselves have undergone a scientific transformation with Deming and company. I had a delightful chat with one of this board’s most arrogant anti business method advocates who did not realize that the definition of science he provided actually made my point that business methods are a fully recognized patent eligible subject matter in part because the scientific method can be and is applied to business methods.As to your musings on *very* abstract, we have had conversations of late on the ladders of abstraction. I believe the *very* you reference is the top rung on such a ladder (I also believe that you are too lax with your statement of “natural” and desire to impose a type of 101 limit – which is but a symptom of the very problem at hand). Any rung below the top rung is fair game (and yes, any rung below the top rung must still meet the other aspects of patent law – the aspects covered by patentability. Further, I have long noted that patent eligibility and patentability are DIFFERENT concepts, and that those wishing to ploy their philosophical atom bombs are the ones that purposefully obfuscate that difference. Any problem with very wide scope is NOT a 101 problem. Period.Further, the notion that “technology” is poorly defined is not lost on me. Quite in fact, I have asked the various posters who have implicitly attempted to change the US system to a technological system to define the term (without engaging in circular definitions as our Patent Office has done in their implementing regulations of the AIA). They refused to do so. Little wonder that the discussion ends so abruptly on their lack of willingness to supply such a definition.

                1. Don’t get me wrong, I do agree. The fact of the matter is that both “technology” and “business method” are poorly defined concepts, even taken in their “ordinary” meaning. I appreciated very much Stevens’ opinion, but it also suffered from the problem that the business method concept is insufficiently defined.We should return to the question why not all valuable brainwork is rewardable by a patent (“cogito ergo patent”, I read somewhere). Patent believers may say: it ought to be. But *very* abstract ideas potentially have a very wide scope, so there naturally is a limit – so it is appropriate to ask the question what ideas are too abstract to be patented.To make a long story short: § 112 (84 EPC) gives the answer: any PHOSITA should be able to carry out the invention (“without undue experimentation”). One may question what an “ordinary” skill is, but there is a sharp line towards work no PHOSITA can be sure to accomplish. A building constructor who is unable to build a house is a bad craftsman, but a pharmacist who is unable to develop a specific medicine on order has bad luck.A true businessman is like a pharmacist. He is never sure to be succesful. He is truly an inventor (businessmen will like that qualification). But the raw material for inventors (science) is not patentable (unless associated with a sufficiently described application – but then we are again in the PHOSITA realm).Remember that “protection” against competition generally is irreconcilable with a free market. Firms are supposed to cause damage to each other, in the benefit of customers.

                2. “This was covered on this blog quite a while back”Yes, to hilarious effect, where the closest thing to a business method they could find was a method of manufacturing lottery tickets and likewise a method of manufacturing iron. Sounds like they sure were business methods to me! /boggle.

                3. “Our law disagreed with that notion. Right from the start.”You do know that the revised section 271 you’re referring to was not present in “the start” of our patent system right?

          2. This is still problematic. One question is what constitutes technology. the EPO shifted from technical things to technical skills and involves considerations of non-obviousness in the assessment of the technicity, which is paradoxical since something that once was technocal intuitively remains technical forever, indepdendent of the state of the art (which is determinative for 35USC103/57EPC).CLS v. Alice actually shows problems that might have occurred in Europe too. The computer implementation migt be considered technical since it requires a software engineer. It migt be obvious but that consideration violates the whole contents approach. A UK court once explained very clearly that the concrete or technical part is not necessarily technical. Imagine a paint based on a novel chemical effect. Here the novelty is in the scientific part, and the application in paint is actually very straightforward.Asking whether the inventor is a technician seem simple but it is not. Many inventions have a multidisciplinary nature. Eventually, the inventor should always keep an eye on the economic feasibility, since patentable inventions must be “useful” (35USC101) or “susceptible of indstrial application” (57EPC)Yes, drafting is important. Too important. It has often been said that patentabiity should not depend on the drafting skills of the patent agent! Still the rules allow “creative” drafting, presumably because they are kind of “mechanical” and no one knows why only technical subject-matter is patentable, except that it is tradition and that Eruopeans do not want “crazy” American patent law with its “ridiculous” busimes method patents.

  13. “Dennis Crouch, a professor at the University of Missouri School of Law who blogs about patent law, said he is amazed that courts have yet to determine once and for all that software can be patented.The confusion has led patent lawyers to play down the software elements of inventions when applying for patents at the U.S. Patent and Trademark Office, he added.”My hope is that this case will be a vehicle for the Supreme Court to clarify the law so that we can get back to business rather than playing language games at the patent office,” Crouch said.”

  14. Congress needs to step in and create a legislative approach. The courts are trying their best but the nature of the law is not helping. In one sense, the original patent law was based on ability to industrialize an invention, hence the ability to manufacture something or help manufacturing in a manufactory. Prior to that, the patents were simply given for patents of importation to allow colonial America to bring industry here. The problem for software is that the law was not envisaged to deal with software. Congress could easily step in and same something like, “flow charts are OK for WD and claims” or functional claiming is OK. Or Congress may say that one has to have flow charts and representative code included. In the biotech field one has to put sequence listing of amino acids that ultimately “code” for the protein. One cannot really claim any protein or fragment thereof that is capable of binding with a receptor. Though I reckon that Congress does not have the appetite to do so being so soon after the AIA.

      1. Yup, this Congress. This Congress has shown a willingness to work together. The speed at which they get things done is amazing. Plus, without any political rancour or mal-intent, the parties work together. Oh wait, I am in the drug-industry. I might need anti-delusion meds to self-medicate.

  15. I see no logical basis to create an artificial distinction between a novel process carried out by a machine that performs a function or accomplishes a result (for argument’s sake, patentable) and a novel process carried out by software that performs a function or accomplishes a result (suddenly non-patentable?). I think a complete bar on software patents reflects a fundamental lack of understanding as to what a computer is and what software is. Yes, it should be subject to novelty, obviousness, etc., but a complete bar to patentability merely because the inventive process is defined by and embodied in software makes little sense.

    1. Agreed.It also misses the fact that software is equivalent to firmware and is equivalent to hardware.That is a fact that the anti-software people have to deal with.

        1. I disagreed. Suppose I have a computer program that computes rubber curing times. Now suppose I have a lot of molds curing and I want them to open up automatically at the right times.How is my computer software going to open the molds without a latch, hinge, spring, or motor of some kind? It’s not going to.The latch is hardware. The program is software. They are not equivalent to each other. Patenting the latch is reasonable if it meets requirements. Patenting the software is harmful to innovation and non-statutory.

              1. Not even close 6.Leftcoastrocky, 6 is attempting to play down to his usual ‘character’ and misrepresent one of my well known positions (a position mind you that NONE of the anti-software people have ever addressed). The position is summed up in the wonderful word: Anthropomorphication.And yes, it is the opposite of what 6 is attempting (poorly) to spin.

                1. 6, must you bring me into your games and respond to everything I write?I agree with anon that you anti’s use the words of human thought to describe information processing by a machine and then try to apply law meant for human thought to the processing of information by a machine.I also say that the Church-Turing Thesis (which Benson clearly butchers) holds that all information processing methods including those performed by people can be performed by a machine. This is a key concept to understand since to hold that the method in Benson is unpatentable is to hold a method that can drive a car, find a tumor, or write an appeal brief is unpatentable.

                2. So you do not believe that it is acting as a human or you do? I’m a little confused, because I thought you’d been saying that for years.

                3. What does that mean “acting as a human”?Do you mean performing functions that humans perform? Do you mean imitating human behavior? What I know is that the anti’s intentionally confuse this issue to try and import case law that applies to human thought and not a machine processing information.

                4. “What does that mean “acting as a human”?”The same thing that you’ve used it a hundred times to mean. It’s just something I thought I’d read from you many many many times.”What I know is that the anti’s intentionally confuse this issue to try and import case law that applies to human thought and not a machine processing information.”Meh, no need. The caselaw on abstractions will suffice.

          1. Owen,You disagree without understanding the facts or the law.Your disagreement is noted but useless.(add: Owen, you need to realize that ‘equivalent’ does not mean ‘exactly the same’ – that strawman was attempted by Leopold and defused a while back).

          2. So why isn’t patenting the latch “harmful to innovation” and why isn’t patenting software “reasonable”? If the software is specific to curing rubber, a patent on a computer running it it probably stifles less innovation than a broad patent on computer-controllable latch for any application whatever. Regarding “reasonable,” please define reasonableness before resorting to it as a decision factor criterion.

            1. “If the software is specific to curing rubber, a patent on a computer running it it probably stifles less innovation than a broad patent on computer-controllable latch for any application whatever.”You say probably. I’m going to go ahead and lean the other way. And I think you will too if you think what you’re talking about through for a moment. And especially if you think about what you’re talking about through in terms of judicially excepted subject matter.

              1. Judicially excepted subject matter (i.e., abstractedness) has actually little to do with stifling of innovation. It can in some cases, but doesn’t always. For example, one could try to patent a method of traveling to the edge of the universe to read a code written into the microwave background radiation for discovering the purpose of the universe. This would be abstract, but would not stifle any innovation whatsoever in its patent term. It would also fail 102, since it is the plot of a sci-fi show, and the disclosure would probably be non-enabling.Regarding “probably”, let’s see the applications of a computer-controllable latch: opening gas tank automatically when a car pulls up to a gas station, opening car trunk automatically when approached by shopping cart, etc, I could go on for pages, and lots of innovation could be stifled by such a (non-software, but hardware patent). I challenge you to find -one- other sensible application for the computer program used in Diehr other than curing molds.

                1. “Judicially excepted subject matter (i.e., abstractedness) has actually little to do with stifling of innovation.”Really? That’s not why they judicially excepted it in the first place? “It can in some cases, but doesn’t always.”Well then you should inform the supreme court. Time to file your amicus brief. They’ll be eager to hear all about it. Perhaps you can provide them examples. Just as a bonus so they can lol@u. “This would be abstract, but would not stifle any innovation whatsoever in its patent term”So what you’re saying is that you could patent things with are entirely useless to us here on earth and thus we should totally understand the judicial exceptions to be divorced from stifling innovation? Mhmmm. Again, I don’t think you understand why they judicially excepted the excepted subject matter in the first place. Hint: They did not do it so that people couldn’t patent methods of driving to the edge of the universe to recite poems or codes or whatever. It is a shame they didn’t wrap up stargate universe better though isn’t it? “Regarding “probably”, let’s see the applications of a computer-controllable latch: opening gas tank automatically when a car pulls up to a gas station, opening car trunk automatically when approached by shopping cart, etc, I could go on for pages, and lots of innovation could be stifled by such a (non-software, but hardware patent”Yes, but you only get to claim your latch. I can invent my own latch and not be covered by your patent. Thus, no innovation is stifled. I just go right around you. In other words, I can design right around ya. Which is in fact one of the chief purposes of the patent system. To spur people to design their own inventions to achieve the same or better results as your invention you made a few years back. It is absolutely true though if your latch is so ground breaking and important that I cannot come up with a design that is nearly as good then you may tie up downstream innovation somewhat. But we put up with that. And that is when people have a right to call their invention supar valuable. Not merely because of their ability to draft a super functional claim essentially claiming the function or result from the get go to make the patent impossible to design around. “I challenge you to find -one- other sensible application for the computer program used in Diehr other than curing molds.”Which “computer program” is that? I don’t have the claim in front of me. Or are you just talking about the Arrhenius equation in general? Because to be clear, at issue in that case was the potential preemption of the equation itself, not the program.

                2. I think the Supreme Court is aware that abstract ideas don’t always stifle innovation, so I won’t be writing an amicus.If the goal is not to stifle innovation, then why aren’t patent applications judged -directly- against such a standard, instead of abstractedness? Indeed, there are already rules against overbroad claiming for cases in which the scope of the claims is not commensurate with the patent holder’s disclosure. This holds both inside and outside of the software field.Just as you can design around a hardware latch, you can equally design around a software patent. Pure functional claiming hasn’t been allowed by the patent system for quite some time now. If you provide the same functionality with a substantially different algorithm, you can’t be legally found to infringe even if your application literally falls within the scope of the functional claims (though you can still be -sued- by trolls regardless of the merits of the case, but this holds in and out of the software field).In short, I see no justification to treat software differently from other fields on the “stifling grounds”, and no direct connection of these “stifling grounds” to the law.

                3. “If the goal is not to stifle innovation, then why aren’t patent applications judged -directly- against such a standard, instead of abstractedness?”Because there is a delicate balancing going on. And only the most egregious of cases are excepted. The big three judicially excepted subject matter realms were those judged historically to be the most egregious. Unfortunately, these days, a huge amount of cases are the “most egregious” cases of old due mostly to the CAFC loosening up the rules for awhile and turning a blind eye (along with the PTO turning a blind eye). “Indeed, there are already rules against overbroad claiming for cases in which the scope of the claims is not commensurate with the patent holder’s disclosure. “And that is a fine rule also. “Just as you can design around a hardware latch, you can equally design around a software patent. Pure functional claiming hasn’t been allowed by the patent system for quite some time now. “You say that, but just exactly how are you supposed to design a new system to do what the system in the Alice corp case DOES without infringing? Whether pure functional claiming was outlawed or not, the same effect is being created. Which is why we’re having this whole throw down. ” If you provide the same functionality with a substantially different algorithm, you can’t be legally found to infringe even if your application literally falls within the scope of the functional claims (though you can still be -sued- by trolls regardless of the merits of the case, but this holds in and out of the software field).”Well then you should tell the people in the Alice case all about it. And likewise the Hulu folks. I’m sure they’d be super glad to hear about it. Maybe you can also advise them on avoiding the doctrine of equivalents (aka the doctrine of windfall for things I didn’t invent). “In short, I see no justification to treat software differently from other fields on the “stifling grounds”, and no direct connection of these “stifling grounds” to the law.”Maybe you should read some of the supreme court’s opinions then.

                4. Hmm, well changing focus from the software portion of Diehr and software patents in general to Alice case, as you mention, the main problem is functional claiming (and, in my opinion, to a much lesser extent “abstractedness” or “stifling of innovation”).EDIT: my position is that ideally one should be able to read the corresponding structure (i.e., algorithms and interlinkage of databases etc) in the patent and design something substantially different and escape the patent even if the new solution literally falls within the scope of the claims and “does the same thing”. I must emphasize “ideally” here — the courts are biased to find infringement if you literally fall within the scope of functional claiming, even though they shouldn’t be.

                5. “is functional claiming (and, in my opinion, to a much lesser extent “abstractedness” or “stifling of innovation”).”It’s the functional claiming that leads to the abstractedness and stifling of innovation brosefus. “I must emphasize “ideally” here — the courts are biased to find infringement if you literally fall within the scope of functional claiming, even though they shouldn’t be.”See, so failing having your ideal in place, we just use the exceptions. Same goal. Just different means of getting there.

                6. Yes, but the “abstractedness” criterion is substantially more vague than “functionality at the point of novelty” which is the test that garbagey patents should actually be held invalid for failing.All patents, when distilled down to their “core” become abstract ideas. There is no patent without an idea behind it, and there is no idea that is not “abstract”.Society is much better off when people know what the law is and court decisions do not seem arbitrary and capricious. All this judicial exceptions to 101 nonsense has created a lot of unnecessary murkiness.

                7. “Yes, but the “abstractedness” criterion is substantially more vague”Only if you don’t understand it. “All patents, when distilled down to their “core” become abstract ideas. “A patent for a new table is not an abstract idea at its core. Sorry brosefus, it just isn’t. And if you continue to think that it is, you simply don’t understand the criteria in the first place. “Society is much better off when people know what the law is and court decisions do not seem arbitrary and capricious. “I agree, and they did for some hundred years before the CAFC went all “Courts Gone Wild” over spring break in 1991 iirc. But then we landed in this mess where people relied on the CAFC’s opening the door for them and are now stuck holding the bag when the USSC says nah bro.

                8. A table as abstract was devastating to you 6 the last time you tried that. “Sorry brosefus” indeed.You need an actual reason (in law) to close that door – even the Supremes know that (witness the defeat of the Malcolm Diehrbot defeat at the hands of Bilski fail, and the survival of business method patents as a part of the process category.me1398 would have received an upvote, except he fell out with the Point of Novelty canard.

                9. “A table as abstract was devastating to you 6 the last time you tried that.”It was? You mean it was in your own mind?

                10. No, I mean in the examples that I provided that you were unable to respond to. The examples which you stressed were structurally defined for that particular rung on the ladder of abstraction, and yet contained mutually exclusive structure.The point being that you simply do not understand (or it is in your ‘character’ to purposefully pretend not to understand) the ladders of abstraction and how your views simply fall apart.And most definitely not just because I say so – I do say so – but they fall apart because they simply logically and legally fall apart.

    2. If they limited themselves to methods then perhaps we wouldn’t be in this mess Inis. If people want to draft up a technically relevant (as in it distinguishes from the prior art in terms of something technical rather than an abstraction as is common) method being performed by a computer then i’m down with their having a patent therefore though it be performed by a computer.

    3. Inis, novelty or patentablity of the process is not the issue. Eligibility is, and that requires that the process perform a function that the patent laws were intended to protect – in the words of Diehr.Focusing one’s attention solely on the issues of 102, 103, and 112, collectively patentability, without focusing on whether the process is otherwise eligible under section 101, wholly misstates the inquiry.For those who are advocating the patentability of software, either they do not get the issue, or they are creating a strawman argument. I don’t know you well enough, Inis, to understand whether or not you understand the issues or whether you are trying to misdirect the conversation from consideration of eligibility of the underlying process. But the argument you make is misleading.

        1. One uses the criteria developed by the Supreme Court. In Diehr, the underlying process that was modified with the computer program was itself eligible under the MOT.No Supreme Court case has found anything eligible beyond this.

          1. Ned,Shall we ride the MoT merry-go-round yet again?Bilski: MoT not requiredPrometheus: MoT not sufficient.Why do I have to remind you of these things every time 101 comes up for discussion?

                1. No Ned – Diehr was not needed to be overruled. Do you think MoT Was ESSENTIAL to the holding of Diehr?You do realize what your precious “point of novelty’ in Diehr was, right?

                2. Wrong Ned.That only shows that you do not understand the holding.Once again: Bilski: MoT not requiredYou need to understand what this means.

                3. Ned, You should then do so – you keep on running away from our discussions and then return later to repeat the same CRP that you do.

                4. anon, we obviously disagree.Now, what we do seem to agree on is 282 and its limitation of validity to “conditions.” The Supremes need to address that as some point.

              1. The MOT test is supposedly informative as to whether a process is an unpatentable abstract idea or more than that. Specifically, tying the process to a machine supposedly is a substantial plus is determining that the method is directed to statutory subject matter.Along those lines, if the presence of a machine in a process is so important, doesn’t a claim to a machine clearly place the claimed invention outside the realm of “an abstract idea”?

                1. Not exactly right Ned – as we have discussed in regards to Diehr (single perfect cures of rubber were not new, remember?)I notice too that you did not want to ‘bite’ at the Diehr “point of novelty”……(hint: software)Add: Ned, (once again) refer to Alappat and the fact that a machine with new software ( a machine component) is considered legally a new machine.Return if you will to the Grand Hall experiment – an experiment you have yet to complete.The simple FACT of the matter is that if you take two identical machines without software and add software to one but not the other, the two machines are no longer the same – physically, legally or any other way you want to look at them.Anything less than an admission to this plain and simple fact is an outright LIE.

                2. anon, if you keep saying the same thing again and again and again and I keep saying that you are wrong again and again and again, it doesn’t mean that you are right just because you have repeated your argument.Just to reiterate, the process in Diehr was improved by the use of the mathematics real-time. The process was thereby transformed into a new state. It passed the MOT. It was held eligible by the Supreme Court.

                3. Ned,I am not right just because I repeat my posiiton.I am right because I am right..”mathematics real time”? NO. Software. YES..You are neglecting the law and picking and choosing regarding MoT – in that, you are plainly WRONG.

                4. We shall see. Want to place a bet? Malcolm still owes me $500 because I bet that the Supreme Court was going to hold DNA ineligible. I still have to collect that bet.

                5. There is nothing to bet about in our conversation Ned. I am right and you are wrong – with the law as it stands today.

                6. No. If the machine is not doing something new, it is an old machineAre you saying old machines are abstract ideas? I don’t follow your logic.

                7. What’s your point?Funny you should ask that. My initial comment was “doesn’t a claim to a machine clearly place the claimed invention out the realm of ‘an abstract idea’?”You responded by stating “No.” Thus, I presumed you believed that the recitation of a machine does not place the claimed invention outside the realm of an abstract idea. You then mentioned something about an old machine. My response was to question your logic since my question was about an abstract idea.Finally, you write “old machines are not abstract.” If so, why did you answer my initial question by stating “No.” Please clarify your point.

                8. Patent Guru, is there something about 101 that puzzles you? Simply reciting a machine does not comply with 101. 101 is not limited to machines or to any of the other of the four recited classes. There are other requirements as well. They are listed. Why don’t you begin by quoting the statute? Then we can start.

                9. Ned — I thought my comments were perfectly clear. They were addressing abstract ideas and machines. My comments were directed to a very narrowly-defined issue — not 101 as a whole.Why don’t you address that narrowly defined issue — then we can talk about 101, as a whole. You argue that the MOT test is supposedly informative as to whether a process is an unpatentable abstract idea or more than that. Specifically, tying the process to a machine supposedly is a substantial plus is determining that the method is directed to statutory subject matter (perhaps you would go further and say that it is the definitive test).Along those lines, if the presence of a machine in a process is so important for subject matter eligibility, doesn’t a claim to a machine clearly place the claimed invention outside the realm of “an abstract idea”? <— I want you answer to that question.

                10. A process that substantially defines a new machine is eligible per the MOT. A process that uses an old machine is not eligible unless the process transforms physical subject matter into a new state or thing. (I omit using “article” as signal might be modified but are not articles.)This is not rocket science. Abstract involves the manipulation of abstract concepts such as numbers. When a process, even using a machine, manipulates abstract concepts, numbers, and produces an abstract output, the process as a whole is abstract. If the abstract part, however, is used to modify, i.e., transform, physical subject matter such as a signal into a new state or thing, the process is not abstract.

                11. A process that substantially defines a new machine is eligible per the MOTWhat do you mean “substantially defines a new machine”? I don’t recall that as being a requirement of the MOT test. What about new processes with old machines?A process that uses an old machine is not eligible unless the process transforms physical subject matter into a new state or thing.Huh?From Benson: “Transformation and reduction of an article “to a different state or thing” is the clue to the patentability of a process claim that does not include particular machines.I see no mention of the term “old machine.”Also, you seem to forget that software transforms an old machine into a new machine. When software is “loaded” onto an old machine, it does not remain unchanged. It is different, and thus, it is not the same old machine.

                12. We go in circles. Software by definition is not a component of a GP digital computer. It does not define a new machine. I agree that a program that is a component part of a computer, meaning it is fixed, makes it a new machine.I do not agree that using an old computer to run software makes that old machine a new machine.Unless you stop fudging and conflating an confusing, we really cannot talk. You are typical of those who advocate patenting of software that say that using software on a GP computer somehow makes that old computer into a new computer. That it does not. To say so, would overrule a number of Supreme Court cases, in particular, Benson. You might actually read In re Benson, the case that Rich wrote and the Supreme Court overruled.

                13. Software by definition is not a component of a GP digital computer.I’ve been working with software for 35 years, and I haven’t seen that definition. Functional software doesn’t exist without a computer.a component part of a computer, meaning it is fixedFixed? I’m not aware that “fixed” is a requirement to be a component of a machine.Unless you stop fudging and conflating an confusing, we really cannot talk.Unless you can stop rewriting common terms to fit your limited view, we really cannot talk.You might actually read In re Benson, the case that Rich wrote and the Supreme Court overruled.I read that piece of cr@p several times. It was written by a poor judge, who had a poor grasp of the facts, and employed poor reasoning. The crux of Douglas’s opinion is the statement Here the “process” claim is so abstract and sweeping as to cover both known and unknown uses of the BCD to pure binary conversion.”He is simply complaining that the claims are too broad. This does not make an invention directed to an “abstract idea.” The same logic could be applied to a screw or a light bulb.

                14. Mr. Guru, I said read In re Benson, not Gottschalk v. Benson. There is a reason for this.Software is named thus to distinguish it from firmware. One type of software is operating system software.Firmware is part of the computer. This transforms the computer.OS’s maybe.Software that is loaded and executed by OS’s, never.As to fixed, it is shorthand for the requirement of any component to be part of a machine. In order for something to be a machine, it has to be a unit. There is a grey area in the law where two machines cooperate. Are these machines or are these processes?Again, simply read In re Benson to see just what was overturned.Regarding Benson and preemption, I agree with you. Such a requirement conflates distinct concepts.The part of the opinion that announced the MOT is the important part. The manipulation of numbers by computers is ineligible because the programmed computer is not a new machine and because the programmed computer is not applied to do anything useful.

                15. Ned,Explain: “It is said that the decision precludes a patent for any program servicing a computer. We do not so hold.”(you should note the familiarity of my request – as well as the historic lack of answer from you as to this critical portion of the Benson decision). As to “fixed” – this too lacks a legal foundation from you, as I have also repeatedly asked for. Think rivets, tires and bullets – no requirement for “fixed” for these items. Software is a manufacture, a machine component built by man that does not exist in nature. As long as it is built for the patent eligible requirement of utility, it is patent eligible,Ned, also your trying to hold “not a new machine” cannot stand in law – Alappat came after Benson, and the Supremes have never said that Alappat was not good law. It is the law.”We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software.”(hint: “programmed to” is structural language – even the most ardent naysayers have volunteered admissions as to this fact)

                16. You know, the beauty of the Federal Circuit is that it acts like it invented patent law. It will ignore older cases of other circuits and the Supreme Court just as most folks on this blog do as well. Cite a case that holds that a machine is a unit it will be ignored because it is not binding authority, not being from the Federal Circuit.This is a problem, in my view, because the Federal Circuit came to patent law after 1900 years of precedent. I should not ignore well established law, but it does.I would oblige you on the case cites, but you would ignore them as you always do, they not being “law.”But first consider the difference between components and a machine. What are they?Next consider Aro I. Is the act of loading software into an old computer repair or reconstruction?

                17. That was was rather two-faced Ned, as often it is you that ignores law in our discussions.Case in point immediately here: you ignored my request for you to explain the quote from Benson.Again.Differences between components and a machine? I have asked you to think of rivets, tires and bullets. You only take a first step in that thinking and fail to realize that software, like those items, is itself a man made manufacture and machine component, distinct from nature and built for utility. I have asked you many times to embrace the exceptions to the printed matter doctrine because that doctrine pivots on utility. You have never once acknowledged the law that reigns.Case in point immediately here: you ignored the law according to the exceptions to the printed matter doctrine.Again.Aro is inapposite. The machine prior to the load of new software simply does not have what the new software provides. You are not repairing or reconstructing anything about the old machine with new software. Instead think of the Grand Hall experiment, with two identical machines (physically) built without software. Add software components then to only one of the machines, and then race. Instead think of chemistry and protons, neutrons and electrons; Instead, think of Morse, and the future claiming of all new inventions (machine improvements).It is not enough for you to throw out ancient case cites if you are going to misconstrue those cases and ignore more recent cases on point.Case in point immediately here: you butcher Aro, ignore Morse and the law of 101 (any new improvement thereof) and ignore the clear analogy with the components of chemistry.Again.What next? Are you going to recycle your vacuous “1” argument, have me respond with Morse’s “space” and ignore that as well? This thread is replete with points you have not answered Ned. You would do better to answer the many many many points already on the table.

                18. Anon, regarding the quote from Benson, not having all computer programs before it it could not categorically decide that all computer programs were ineligible. That is the point of the quote from Benson. What is important about Benson is that the claims in that case failed what we now know to be the MOT. That is why those claims were held to be ineligible.

                19. Ned,Your answer fails to touch upon what the quote actually means – vis a vis software – as a category – much like your failed attempts to paint business methods (again, as a category) as not patent eligible under Bilski. It is a fallacy to try to say that not all computer programs were before the court thus they stated what they stated. That my friend is a meaningless truism that simply does not change the fact of what they stated as a holding – no more than you can change what you are attempting to say to be any less false given that very particular quote. Directly: you would hold what the Court said in plain words they did not. You cannot be correct.So please, the dicta rants in Benson were (rightfully) swept aside in case law that followed the Supreme Court case (as I have on more than one occasion explained). And once again, your attempt to resurrect MoT, also fails to heed the very holdings of the Court which I have also shown to you.Yet, you would accuse others of ignoring the law. Quite simply Ned, your accusations ring hollow when I so easily point to your foibles.Must I continue to hold you hand and explain Supreme Court (and other court) cases to you? When will you want to stop riding in circles? When will you stop in your illusion of going somewhere? I have shown you riding your merry-go-round, and your failings of your positions time and again. Yet each time you run from my points without acknowledging them and only returning later to see those very same points defeat you once again. These points will be here upon your (eventual) return. They will not go away.

                20. Software that is loaded and executed by OS’s, never.Something happens to the machine to make it capable of doing something it has never done before, and in case no one has ever told you, it isn’t magic. Have the correct tools/techniques, and you would be able to determine, from the configuration of a computer itself, it’s functional capabilities that change was one supposed general purpose computer to the next. There is nothing abstract about the change that occurs to a computer when software is loaded on it. It isn’t magic. As to fixed, it is shorthand for the requirement of any component to be part of a machine. In order for something to be a machine, it has to be a unit.Have any cites for this, or are you making it up on the fly? BTW — software that is stored in fixed storage (e.g., memory, hard drive, etc.) is a constituent part of a fixed component. Again, simply read In re Benson to see just what was overturned.Your problem is that you appear to have gained your understanding of technology from judges or attorneys – many of which don’t know a lick about the topic. On the other hand, my understanding of technology is based upon personal knowledge (e.g., my studies and my actual work experience in the field). Benson (Supreme Court variety) was a horrible decision because few (if any) involved in the decision understood the technology (in the slightest). If one cannot understand the facts, then the law the follows suffers. BTW — Benson is effectively dead.The manipulation of numbers by computers is ineligible because the programmed computer is not a new machine and because the programmed computer is not applied to do anything usefulNothing about the MOT test requires a new machine. Also, your assertion that “the programmed computer is not applied to do anything useful” is laughable. Software is one of the largest industries in the world, and you think it doesn’t do anything useful. When you need to redefine the word “useful” to exclude software, then it says a lot about the strength of your arguments.My arguments are easy. Simply put: “a machine is not an abstract idea, andsoftware is an improvement to a machine.” This simple argument covers both 35 USC 101 and the exceptions thereto. Overcome those arguments, and you can prevail.

        1. Right. Made by man.Describe how to make a 1.How does one made an improve grace?What is the weight of love?How many prices does it take to fill a breadbasket?Now please do not respond that love has a price. Both are abstract.

    4. While I may agree, I’d like to point out that software is (or at least originally was) patented as a process ineligible for patent under the “mental steps doctrine”. In the EPC, software is listed together with other mental steps in Art. 52(2c). In Prater II this issue was (IMHO properly) addressed in US law, in Europe it still is an issue.Another concern is the “printed matter doctrine”, prohibiting the patenting of inventions solely different from the state of the art by their information content.While all these associations may be incorrect, the confusion is there. Recently I was blamed for arguing that software of course should be patented as a product. My opponent firmly believed that sofwtare is a process. But patented processes typically are executed by manufacturers (notably in chemistry), whereas software is executed by users. The statutory protection of the “product directly obtained” by a patented process is preposterous for (most) swpats.I would suggest to revert to a further level of abstraction. Patentable subject-matter as disclosed in patent databases represents valuable knowledge – but why is not all valuable knowledge patentable?The idea of Morse code was a valuable idea, but in 1854 the SCOTUS rightly prohibited the patented from covering future applications (O’Reilly v. Morse).

      1. Fritz, you might want to read Morse again. The code claims (marks and spaces) were held eligible. The process claim whereby intelligible “signs” were communicated at a “any” distance using EM was held ineligible. The physical way that was done, as disclosed, was a combination of a mark/space apparatus with, and this was key, repeaters. But none of that was in the claim. The claim simply claimed the ultimate result without any of the actual process or apparatus in the claim. This was held to be ineligible as claiming the principle in the abstract — which we should understand to mean that none of the novel apparatus and process disclosed was part of the claim.Now if one focuses solely on the “code,” the novelty was not in the dictionary, but in the use of physical marks and spaces.Here is the claim itself:”Fifth. I claim as my invention the system of signs, consisting of dots and spaces, and of dots, spaces, and horizontal lines, for numerals, letters, words, or sentences, substantially as herein set forth and illustrated, for telegraphic purposes.”

              1. Lefty, exactly right. The SC rested its decision in Morse on the written description and enable requirements of the statutes. Somehow, this got switched over time into a 101 issue. Remarkable.

                1. It was switched with the nose-of-wax treatment instigated in Benson.What is really remarkable is that you have not yet put the pieces of the puzzle together to understand this.(although we both know that your third party interests have a predominant factor in your lack of doing so – just as that factor prevents you from fully entering into a conversation with me and that factor makes your silence to my many counterpoints scream so loudly that your canards cannot be heard)..By the way Ned, where is your answer to my question regarding the structure – in the allowed claim – of Morse’s electromagnetic ‘space?’ (I have to wonder if it has a similar structure to a “1”) Your silence is screaming.

  16. Anything under the sun and made by man should be eligible subject matter. The PTO can then allow it or not based on the statutory factors of patentability. Problem solved.

    1. *Anything under the sun and made by man should be eligible subject matter*Plots and themes of novels and movies? Jazz riffs? Poetic turns of phrase? Mathematical theorems? Physical laws? Computer software? Feelings and emotions? Dreams? Ambitions? Social relationships? Political platforms? Rhyming schemes? Fashion looks? Body sculpting workouts? Funny walks? Jokes?If you say no to any of those, you don’t mean what you said.If you say yes to any of those then you’re wildly opposed to common sense and sane governing practice.

      1. “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”

        1. That’s not at all the same as “anything under the sun made by man.” It certainly excludes computer software also, but the CAFC has been determined to include it by various shenanigans.It’s as if the plots of movies were excluded from eligibility but the process of making a print of a movie with a particular plot were included. That’s what current 101 software jurisprudence amounts to.

          1. It certainly excludes computer software alsoI go down to Best Buy and ask for the latest computer software, they are going to point me to a section loaded with a whole bunch of CDs/DVDs. Are they not manufactures?Is not computer software an improvement on a machine (e.g., a computer)?Does a computer not perform a method, when it executes software? Aren’t methods covered by 35 USC 101.

            1. So the people at best buy direct you to some plastic discs? So what? You want the software, the abstraction, which is reduced to a particular form on the disc, yet is claimed in any patent application as an abstraction. If you just want the 1’s and 0’s of a certain disc, I’m down for you having a patent.

            2. That’s the same thing they’ll point you to (CDs and DVDs — well, BluRays) if you ask for movies and songs. Should movie plots, characterizations, catch phrases, and scene edits and chords, voice modulations, lyrics, and melodies and harmonies of songs be subject to patent monopolies?I don’t think so.

                1. You said patents should issue for everything under the sun made by man. That includes things which can also be copyrighted. Software can be copyrighted and that’s a good thing. Issuing software patents is uniformly harmful to innovation and never statutory.Likewise with movies and songs. Fixing them on a DVD doesn’t change that for movies or software.

                2. “You said patents should issue for everything under the sun made by man. That includes things which can also be copyrighted.”No. That’s not what I said. This is what I said:”Anything under the sun and made by man should be eligible subject matter. The PTO can then allow it or not based on the statutory factors of patentability. Problem solved.”That’s entirely directed to 101. I continue to believe that. Tell me why I should not.

                3. (sigh) yet another wayward soul and the lack of understanding of the Useful Arts.add: and as Patent_Guru astutely points out, the man made manufacture of software – a machine component – is an improvement to a machine, and thus captured under the law of 101 (you know, “or any new and useful improvement thereof,).Owen, if you want to tout your website as directed to those in law, in would behoove you to do more than drink the anti-software patent kool-aid and understand the law. Just a thought.add: Owen, you also need to realize that there are things that can earn both copyright and patent protection – but for different aspects. The two are NOT mutually exclusive. If you are selling service to the legal community, and you broadcast such a disregard for what is covered by copyright versus what is covered by patents, I would hesitate to trust your goods.

                4. Issuing software patents is uniformly harmful to innovation and never statutory.That is a sweeping statement — care to provide any evidence to support that?BTW, did you answer the question as to whether software is an improvement to a machine or not? I’m not sure if I caught your answer.

                1. Sound is entirely different from a machine that makes sounds, such as certain types of medical equipment.

                2. combine what with what?anon, we clearly have trouble communicating, so I will reduce this thread to a simple yes/no question.Do you believe that sound is patentable? Not a machine for making sound. Not a recording of sound. Just sound.

                3. “Just sound” is currently not patent eligible (See Nuitjen)However, I firmly believe that Nuitjen cannot stand on its legal position, and will be eventually overturned.

                4. You are welcome. It should be interesting to note that the Nuitjen discussion has evolved with proponents of that decision abdicating the ‘physicality’ prong and attempting to stick with the “lack of persistence – timing” prong. One only has to look up into a clear night sky to see how wrong that prong is.

                5. One only has to look up into a clear night sky to see how wrong that prong is.Some of the longest living “things” out there are the propagating waves carrying information from billions of years in our past. Hmmm … I guess signals are transitory [cue eye roll].

              1. Should movie plots, characterizations, catch phrases, and scene edits and chords, voice modulations, lyrics, and melodies and harmonies of songs be subject to patent monopolies?Are they machines? Are they processes? Are they manufactures? Are they compositions of matters?

                1. No, they are not. But they are new and made by man, and very possibly “under the sun.”Point being that “everything under the sun made by man” contradicts the statute.

                2. No they are copywritable colections of IP and together create a marketable show for entertainment and valuable marketable and in need of protection from infringers.

        1. You say yes to patentability of social relationships, feelings and emotions, computer software, and movie plots? I respect your logical consistency but I disagree.

          1. I get to use this after all…”Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”I don’t suggest that we should throw out the rest of the patent laws, just redefine 101.

    2. Anything under the sun and made by man should be eligible subject matter.This is not to suggest that § 101 has no limits, or that it embraces every discovery.

      1. I believe it has no limits except made by man and under the sun. The limits are imposed by the statutory conditions of patentability.Take Bilski. It is obvious to put a business model that has been in existence for a thousand years and put it on the web.

        1. I believe it has no limits except made by man and under the sun.Then you might care to re-read Diamond v. Chakrabarty.Take Bilski. It is obviousOf course it’s obvious. But it was rejected under 101. It’s possible for a claim to be invalid for more than one reason, and it makes sense to invalidate such a claim on whatever grounds require the least time and expense.

          1. “it makes sense to invalidate such a claim on whatever grounds require the least time and expense”No it doesn’t. It makes sense to invalidate a claim on the grounds that are strongest, but invalidating on every ground that a potential argument can be made no matter how strong puts us in the position we are in now with not a sliver of clarity as to what is subject matter eligible.

          2. “Then you might care to re-read Diamond v. Chakrabarty.”I know right? Softiewafties and their “beliefs”. As if their “sincerely held beliefs” should have any impact on the world around them saving for their vote at the ballot box.

          3. (Still) Doesn’t answer my question, IANAE.add: As if I would get a straight answer…As to the Supreme Court additions to 101 through their “implicit” reading, well, that’s a completely different topic of runaway judicial activism and that governmental body’s overreach into writing patent law – but the problem with that is that the body ‘watching’ for such overreach is the very same body doing that overreach and, as seen in Prometheus, that body is not about to allow THEIR exceptions to become dead letters by any recognition that they overstepped their bounds and engaged in patent law writing.I have asked but never received an answer: what is the limit of implicit reading? What else implicitly lies in the words of Congress? The Supremes need to take a closer look at the history of their actions and now have a chance to own up to their mistakes – but that would take a Supreme level of intellectual honesty and fortitude. I just saw another poll that the Supreme Court’s credibility with the common man is at a near record low. They need to open their eyes and apply a little common sense and own their own works. They broke the system attempting to shape the nose of wax – they now have an opportunity to fix the system.I pray they have a Chakrabarty moment.

          4. IANAE: your reasoning is not law. In fact, it should be invalidated under the law passed by Congress before a judicial exception is applied. That is law.

      2. LOL – please more IANAE (your Calvinball face spike awaits).Which ‘implicit’ prong removes the manufacture of software from patent eligibility?I love another down vote when I am asking an anti-patent person for some legal basis. Thank you whoever you are for confirming that I am on the right path.

              1. Asked and answered – no secret references at all 6.Once more, nothing but FAIL from you.add: Owen, upvoting 6 on this point further decreases your credibility. You are showing a lemming reflex to anything posted that is anti-software patent. If you want to be taken seriously, you need to understand just how bad the positions are that you are upvoting.

          1. Well, lets look at god, heaven and you name it. None are not displaying the letters on my screen or yours. Software is. As for math, I could be persuaded that a mathematical equation or a product of nature is not subject matter eligible, but I think they would also qualify as obvious, and that makes me error on the side of anything under the sun and made by man is subject matter eligible.Undoubtedly some mathematical equation is calculating the colors and the pixel placement as we look at the screen. Using an equation as part of a larger method to get a specific result is not always obvious.

            1. “None are [not] displaying the letters on my screen or yours”Bullsht. God, the abstraction doeth command your screen to display his holy word!link to quod.lib.umich.edu…And it took math to put them words up there as well. Just because software is the latest in a long line of abstract things generally related to displaying things on “screens” or other mediums (books, movices ahem) doesn’t make it any less abstract. Especially not the way it is discussed in modern patents. I will grant you that you could, theoretically, look at software in its non-abstract form (some little 1’s and 0’s on a medium) but that is irrelevant to the discussion since nobody looks at them in that fashion in patents, they just use that as an ancillary excuse to be allowed to look at them, and present them, abstractly in patent documents. You could similarly look at the non-abstract forms of god, heaven and math etc. The human brain and some pages of books, and some pages of websites directed to the bible and mathematics respectively. But nobody argues that those magically aren’t abstract just because they have non-abstract forms. The abstract form is what is of concern to us humans, just as it is in software patents. “but I think they would also qualify as obvious”You’re obviously ignorant of math. Let me guess, made it through your first year intro to calc course and called it quits? That happens to be an ignorance which explains further why you think software should be eligible. “Undoubtedly some mathematical equation is calculating the colors and the pixel placement as we look at the screen. Using an equation as part of a larger method to get a specific result is not always obvious.”Oh so now it’s math that is calculating the colors and pixel placement? Sounds like something some people would say software is doing. Software now is math? Or do we magically draw the line at the point where you can abstract what the math did into a “larger method”? An interesting proposition, but certainly not a logical one. But meh, I could see an ignoramus being sucked in by it. Especially one in robes who is entirely ignorant of math and software.

          2. Really? When I buy my CD containing XYZ software program and put in in my computer, the CD communes with the great beyond to somehow magically transform my computer into being able to do something it had never done before.I love these type of statements from the antis. It just shows how out of touch with reality they are.

            1. Nah bro, your straw statement isn’t quite what happens. All that really happens is that the physical structures on the CD represent the abstract program in a given language. I know you have a nigh never ending supply of straw, but just stop using it k?

      1. “Software is certainly made by man”Not only that (and that means it is a manufacture), it a machine component and made with a utility purpose.All else is dust-kicking philosophy imploring judicial activism to change the explicit law of Congress.

        1. “Made by man” is not coextensive with being a manufacture. Songs are made by man, but are not manufactures.In any case, I asked about being “under the sun” and not being made by man.

            1. Your question is really asking me to define “manufacture”. I equate manufacturing with tangibility. How do you define a “manufacture”?As for using a “song” as an example of not being a manufacture, I assumed that its status was undisputed. Apparently, my assumption was incorrect.

              1. (sigh) Useful Arts NSII You fail at the beginning.(yes, your assumption was incorrect – but for a different LEGAL reason)NSII, as for tangibility, consider the requirement for copyright (which you already admit software as being able to obtain): fixed in a tangible medium.Next consider the exceptions to the printed matter doctrine, (which certain anti-software proponents have volunteered admission of knowledge of controlling law while others simply refuse to discuss): patentable weight is given such printed matter that has a functional relationship.

                1. Is your definition of “manufacture” “useful arts”? Otherwise, you are responding to a question I didn’t ask or a statement I didn’t make.

                2. Two separate but important inquires NSII. (add: whether you asked the question or not or made the statement or not is NOT material – you are engaging in a legal discussion that requires that you understand how the Useful Arts and the definition of “manufacture” interact. You cannot have one without the other.)If you are outside of the Useful Arts, then stop and do not proceed, as the usual legal inquiries are not necessary.I have covered this many times in the past. Pay attention.

                3. I know they are two different things, which is why I didn’t understand why you were talking about useful arts. Is your definition of “manufacture” so complicated that it cannot be expressed in a few sentences? I can infer that your definition of “manufacture” includes software, but that doesn’t provide a boundary, assuming there is one.

                4. You need both – and when you insist on the fallacy of introducing examples of non-useful arts you are already way off base.You need to stick to examples within the useful arts. Software, a man made manufacture and machine component is made for utility and thus falls within the Useful Arts.Sorry, NSII, but that is a fact you have to deal with..And why are you looking for a boundary? A boundary for what?

                5. You are (1) assuming what you are trying to prove, and (2) not answering my question.Asserting that software is a manufacture isn’t a definition. Rather than define “manufacture”, can you give me examples of things that you don’t consider to be “manufactures”. In other words, does your definition of “manufacture” have any boundaries, and, if so, what are they?

                6. We agree that songs are not manufactures. please explain why you think it is not a manufacture

                7. (sigh)Songs are manufactures – just not in the legal patent sense because of the Useful Arts requirement.That is expressly why examples from the non-useful arts are simply non-starters. That is why it is a clear sign that those trying to use such examples are not going to prevail.All of this has been explained before..Add: leave it to 6 to think that software is not a useful art. How come you never took me up on the challenge to avoid using such Useful Art modern inventions then 6? Funny how you cannot live what you preach.As to any predictions, let me hear the arguments actually made before the Court before I predict how the Court will respond to those arguments.

                8. “Songs are manufactures – just not in the legal patent sense because of the Useful Arts requirement.”Interesting to hear you say that, I think that’s the first time I’ve heard you put that to paper. So then the supremes will be equally justified in holding software a manufacture, but just not in the legal patent sense because of the useful arts requirement, especially in the instant case. Right? Also, anon, you going to make a prediction as to how this case turns out?

                9. Think first: Useful Arts?(typically, art performance is classified as a Non-useful Art)That is not to say that a fully patent eligible method may not involve a step that includes a dance move or some other such item (as is recognized that thoughts may make up steps in a patent eligible method). Note the distinction here between this and the typical Malcolm Strawman of attempting a discussion of a claim completely composed of mental steps which is not allowed.But be aware that such a hybrid item may lose patentable weight on the type of such a dance move (for example) in regards to novelty/obviousness (explicitly aside from any patent eligibility discussion). This does not include a specific functional association between each separate dance element and controlled machine function, in which case, it can easily be seen that patentable weight can be maintained.The clear equivalent here with software has to do with the exceptions to the printed matter doctrine. As noted repeatedly, Ned has never addressed this controlling law, and the other anti-software patent proponent Malcolm has volunteered an admission that he knows this to be controlling law.

                10. No NSII, I am NOT assuming that which I am trying to prove, and yes, I am answering your question – the important legal ones at least (so no, I do not need to define ‘manufacture’ and you still have not explained what you mean by ‘boundary’ — I cannot read your mind and answer that question which you have not explained).You just happen not to like the answers.Sorry, but you have to deal with them.

                11. Why didn’t you just say that you refuse to define “manufacture”? You have repeatedly asserted that software is a “man made manufacture”. I have repeatedly asked you what you mean by “manufacture”. Given that your conclusion is premised on software being a “man made manufacture”, this should be an easy question.Perhaps, it is easier if I don’t use the word boundary. Let me explain it this way. You are using a classification called “manufacture”. Under your definition, this classification includes “software.” Based on your understanding, how does one determine whether something is or is not a manufacture?

                12. What do you mean by boundary? That too is an ‘easy question,’ but you have not answered it.What do you mean that something ‘made by man’ is not synonymous with ‘manufacture’? – I have already pointed out that you need to stay within the Useful Arts for this legal discussion, so what then do you mean?add: NSII, the question is far from moot, as you have not answered it. Please answer the questions of this post, thanks.

                13. If I understand you correctly, you do think that “man made” is synonymous with manufacture. Applying “man made” as an adjective to “manufacture” was confusing.All classifications have boundaries. You are using manufacture as a classification. What are the boundaries of “manufacture” under your classification? I don’t know how to make it more clear, but since you have answered my question that is moot.I have been trying to understand your terminology, but you kept talking about “Useful Arts” as though I had asked you to define it. I didn’t.All of that aside, the fact that you have been talking about “Useful Arts” rather than the text of section 101 indicates that we probably interpret the Constitution differently.

          1. NS II: software is certainly made by man. Patents are for useful things? Is your argument that software isn’t useful? Isn’t made by man? There is a trick here isn’t there. The trick is that software is really a machine. But, our technology has progressed so that we can manufacture the machine by a method of instructions for the machine. You see what has happened is the old way of thinking of a manufacture doesn’t quite fit the modern age, and that thinking should bend is the old definitions.But, let’s not forget that methods are patentable as well. And software is also a method of processing information.Really, do any of you care about science? I guess I am old. When I was growing up integrity mattered. Now you guys just seem to want to get the end result with no regard for science. What I write is scientifically accurate. What you lot are writing is based on 1920’s or before philosophy.The scary part is that the new Fed. Cir. judges clearly don’t care about science like J. Stevens. The Bilski dissent could have been written in the year 1200.

      2. Non sequitur II, I assume when one adds 1+1 to achieve a result that such is an eligible process, a product of man; but I have a hard time understanding exactly how one can make a “2,” let alone make a “1”.

            1. It illustrates a fallacy.I have shown you why repeatedly.There is a reason why you have NEVER discussed the exceptions to the printed matter doctrine.We both know why Ned. Please don’t embarass yourself.

              1. No you have not. Math involves the manipulation of abstract numbers. A process involving calculations inherently involves math. If the result of the process ends “in a number,” that number is not physical, and is abstract, making the whole process abstract. That was the holding in Flook, for example. Flook only produced an number and it was not tied to a specific end use.

                1. Yes, Ned, I have.Every time we go down the path you disappear.Trying now to kick up the dust of Flook will not help you.Software is not math. (remember simple set theory and the fact that you cannot copyright math?)add: to your reply to Patent_Guru, you are off again: Perfectly cured rubber was old Ned – you keep on forgetting that.

                2. Not really. A programmed computer is real because a computer is real. The programming itself is simply a machine state.

                3. Really Ned Really.Think other machine components such as rivets, tires and bullets.And No Ned – software is not merely a ‘machine state.’ How do you copyright a ‘machine state?’Machine components are somehow not real, Ned? Like 6 – do you think these things to be magical, godly or otherworldly?

                4. BZZZZT – WRONG right from the get-go.Stay within the Useful Arts Ned.(do you really think that software only exists while it is being utilized? Really?)You did not answer this question Ned (and yet below you spew CRP as if you can avoid answering this question).

                5. Most definitely NOT Ned.Steven was dead wrong in trying to rewrite what Congress had written concerning business methods – you are diving even deeper into the weeds if you pursue this line of ‘thought.’This then is a point of fact that you need to accept: business methods fall into the useful arts (and I am still waiting on that proper legal citation from you that states business methods are outside of patent eligibility – we both know that you will NEVER produce that citation, don’t we?).add: Yet another down vote when I ask for a proper legal citation: Thank you again for confirmation that I am correct – loving it.

                6. Reminds me of the Grand Hall experiment.(and the answer Leftcoastrocky, is that yes a programmed computer is in fact physically different – as one anti-software patentist has voluntarily admitted, “configured to” is structural, and as the courts have held (e.g., see Alappat) machines with programming are in fact new machines).Ned, Your answer to Leftcoastrocky is completely wrong. You are (once again) adding a condition for which I have repeatedly asked you to provide a legal citation to support and for which you never have.You want to waive some type of magic wand and have a machine pick a program out of the aether, reconfigure itself, do its thing and then reconfigure itself back magically. Pure B$.I have a patent on tires. I put them on a car, use the car then take them off the car. I have a patent on a bullet. I put the bullet into a gun. I don’t even need to fire the gun. I take the bullet out of the gun.See where this is going Ned? It is wrecking your fallacy of use/configure.Altering something and then altering it back is NOT the same as NOT altering the something.

                7. A programmed computer that includes ROM that has a physically altered media that remains that way and is part of the machine is an altered machine. A machine that is used by loading programming, executing it, and then the program vanishes is not altered.

                8. Software is not math?Even if this were metaphysically true, what really is important is what is claimed.When one claim as mathematical algorithm that end is a number, the issue is whether that is eligible, not whether software is math.

                9. Metaphysically and every other way: software is not math.add: (remember simple set theory and the fact that you cannot copyright math?) [sigh, another fact that Ned will not and cannot reply to].You are putting WAY too much emphasis on Flook here Ned.second add: Let’s take a closer look at Flook (and remember the historical context of the decision coming in the midst of Supreme fingers in the 101 Nose of Wax). Contrast with the allowed claim (and let’s not be coy about arguing ‘disclosed’ on the one hand and ‘claimed’ on the other, please) of Morse. Morse was allowed a system of letters – matters not what the actual letters were, mind you. Flook was not allowed a system of numbers (calculating numbers to be more precise, but the analogy is close enough). Hmmm, letters OK, but numbers not OK…?any letters OK, but any numbers not OK…?The system (the allowed system) of Morse is nothing more than the ‘result,’ no?And let’s not forget why Congress purposefully left out invention in 1952 (instead introducing 103) and removed the common law ability of the Court to define that term: the Court was abusing that and making the obtaining (and retaining, anyone remember the only valid patent is one that has not yet appeared before us quote…?) of patents too difficult. This in fact mirrors Ned’s use of the term “principle in the abstract” – the very same abuse of that term was rampant (as has been pointed out to Ned in the past).Once again, those who do not recognize history are bound to repeat it. The patent system was built to be inclusive, built to have a wide open front gate. Those wanting a narrow gate have yet to deal with these facts in any intellectually honest manner..It looks the a little piece of blue sky has fallen into our (collective) laps and NWPA is correct in that a certain bias is at work. Can any of the Flook proponents explain why the claim of Morse dealing with any and all letters (and any and all combinations of letters) is allowable while numbers get the shaft? Please fold into the discussion the non-limiting elements of intended use and field of use, if you would be so kind.. Also, look closer: Morse’s “physical” signal is a system of electromagnetism – but that is not eligible per Nuitjen, right? What sense of that, is there?Ned, to use your own (quite silly “1” proposition against you), what is the structure of Morse’s electromagnetic “space”?

                10. anon, had Flookc laimed his invention in terms of operating on signals such that there were real inputs and real outputs, where the real outputs were actually used to do something, I think the result would’ve been different. But rather than do that, the claims simply resulted in a number. That number was useful in an abstract sense, but was not a physical signal in any sense. That was the problem.In contrast, the mathematics of Alappat were claimed in context of a machine that ultimately displayed a signal on a display. The mathematics were conducted in that context, operated on signals and produced physical outputs in a machine.

                11. Correction Ned: the software of Alappat.Again – software is not math, you cannot obtain copyright on math.

                12. A process involving calculations inherently involves math. If the result of the process ends “in a number,” that number is not physical, and is abstract, making the whole process abstract.Weigh that ounce of gold for me. Uh … I put it on a scale and the scale shows the number 1. I presume it weighs one ounce. The whole process is abstract?Count the number of balls produced by ball producing machine. The balls pass through a sensor that counts each ball. The result of the process is 142. The whole process is abstract?

                13. I invent a new machine that calculates numbers. That machine is patentable as a machine. I describe that new machine in terms of its internal operations. That is a patentable process. I described a process that is used to produce a number, even if it involves the use of physical objects, the process remains abstract.Now the courts have not fully addressed the situation where the process being claimed is old but the physical objects are new. That may well describe eligible subject matter. But they have fully addressed the situation where the physical objects are old and conventional and the only thing new is the abstract process.

                14. Ned, Flook was written in the iron age thinking. We now understand information processing and understand that Flook should be expressly overturned.There is a machine that represents information and performs methods that transform the information. Representing and transforming the information takes space, time, and energy. Information is a characteristic of the universe just like momentum. Information cannot be destroyed and it takes energy to transform it.This medieval thinking of trying to push all of information processing into theoretical math evinces ignorance.We are talking about method/software/firmware/hardware that are instructions to a machine. It takes time, energy, and space. That includes all methods including those used by you to respond to this post.And, boys and girls, what I wrote is based on science. What you write Ned is based on medieval thinking that has no basis in science. None. No basis in science. You write gibberish.

                15. Night, there might be a difference between transforming signals and pure mathematics, can you please explain what the differences might be?

              1. Night, I think I understand information processing and have tried to explain it to you in that there is a difference between mathematics and signals and you don’t seem to understand the difference.

        1. Suppose one nails two pieces of wood together. I have a hard time understanding how that should be patentable. (sarcasm)Make a 2? Where is that 2 that you wrote up there? Does it exist anywhere? I know the angels spinning on the tip of pins keep your numbers for you.

          1. Night, there is a difference between adding one board plus another board to result in two boards and adding 1+1 = 2. Can you help us understand the difference?

      1. (sigh) software is not a ‘1″ Ned – Shall we ride the Copyright merry-go-round yet again?Ned – you are still kicking up dust with your “1” swill.”1″ is not software.You cannot copyright “1”You can copyright software.To copyright software, you must be able to render it in a physical tangible medium.The LAW (you know, the point you refuse to discuss) on the exceptions to the printed matter doctrine come into play to make the tangible medium – a machine component and manufacture – a fully patent eligible item.Enough already with your CRP “1” dust-kicking.

      2. I’m not proposing to do away with all patent law. Just defining subject matter eligibility. Then it passes into examination and is examined against the statutory factors of patentability. I think making a 1 might fail under 102 or 103.

        1. Callistus, of course a claim to a “1” would fail under 102, but that is hardly the point. If the Supreme Court is serious about whether anything under the sun “made” by man is eligible, then one must ask the obvious question and that is how does one make a ” 1.”I have asked the same question in a number of ways, including asking the proponents of patenting mathematics to describe the structure of a 1, but have never received an answer with a description As of course there is none. Abstractions can be described and understood in abstract terms, but they are not physical, they do not have structure, they do not have mass, they do not have presence in space time. One cannot make them. One cannot destroy them. One cannot own them. One cannot patent them.

          1. Your question is neither obvious nor can it be answered. A “1” is a commonly known physical symbol attributed a commonly known abstract meaning. When one or more of these sort of characters are strung together, they act to illustrate a thought such that some second person can understand the thought of the person who wrote it. Kind of like what you just read. One (not 1) can use 1 (not one) in a chain of other characters to illustrate that which is patentable subject matter.Making a “1” has nothing to do with the question at hand.

            1. The physical mark for a 1 can vary from time and place. One does not claim the mark. One claims the meaning of the mark. The meaning is abstract.

              1. I still don’t get your point. I think your argument is that since a 1 has a meaning that is abstract, then every possible combination of anything that uses a 1 has an abstract meaning as a result. Is that right?Alternatively, all claims are written from letters, each having an abstract meaning, so no claims could be any other than abstract. Or are you trying to draw a distinction between words in the real world and the meaning of language in the abstract world? Sort of a philosophical Decarte-like discussion?

                1. A 1 is abstract. A thing is not. One thing modifies a non abstract thing and is itself non abstract.Thus if I claim the numbers themselves, formulas or math or such, I am claiming abstractions. However, if I apply the abstractions to something physical, I am claiming something physical.A board is a thing. Two boards are still things.A signal is physical. Modify the signal with a digital filter, I transform it. But I cannot claim the math per se. That is completely abstract.

                2. How do you get to the conclusion that software is abstract from this argument? I can’t think of a singe instance of software where there is not some thing that in some way is being affected by the outcome of the software running on it, which makes it, by your example, something physical. Even a mathematical program running a calculator is a thing under this argument.Are we finding agreement?

                3. Perhaps you know of a software program that produces a number that is not used. I can think of none.

                4. But are you claiming to use?Flook ended in a number that was certainly useful and probably was used. But that use was not claimed. Therefore the mathematics was claimed in the abstract. Sent from iPhone

                5. I may be misunderstanding Flook, but the court described it as a “phenomenon” not an “abstract idea” as we have been discussing. “Even though a phenomenon of nature or mathematical formula may be well known, an inventive application of the principle may be patented. Conversely, the discovery of such a phenomenon cannot support a patent unless there is some other inventive concept in its application.”I’m happy to discuss either, but it’s hard for me to switch from one to the other in the middle of a point on one. Which are you debating?Staying on point, Flook supports my point and what I thought was yours. “Thus if I claim the numbers themselves, formulas or math or such, I am claiming abstractions. However, if I apply the abstractions to something physical, I am claiming something physical.”So where do we disagree that software is not abstract?

                6. Calistus, Flook began, “An “alarm limit” is a number.” It ends, citing In re Richmond for the proposition, ”[I]f a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.” When a claim calculates and produces as its output a number, it is non statutory per Flook.

                7. Ned, You’re jumping around to different subjects. I understood that we were debating whether or not software is patentable subject matter. Now we are discussing whether a claim generating a number is patentable subject matter. This is a claim construction question that could be applied to software, but few software claims simply generate a number and nothing else.It appears that we agree that software is patentable subject matter as long as it does something tangible. I am satisfied that we agree.

                8. Calistus, so long as the programmed computer is tied to a useful application, useful in the 101 sense, then the claim is eligible per both Diehr and Alappat. The problem is that if you say a programmed computer is eligible and stop there, you do not necessarily tie the computer to any useful application.

                9. You’re right. I don’t. It should not be a question under 101, which is what this discussion is about. 101 is a gate to examination. Claims, while submitted with the application, are not completed and will change during examination. As a result, arguing this concept at the gate is not possible. Arguing that the gate was opened wrongly after the fact is hostile to inventors and the patent system as a whole. It’s an abstract attack that can only be reasonably argued for or against in the abstract.I agree that it should not earn a patent if it doesn’t do something with the final number it generates. That should cause it to fail under 102/103. If not, another condition of patentability should be established in black letter law to control this. Fighting this point under 101 messes up the whole system and is anti-patent in effect. Fighting it under 102/103 is the best way to address it.

                10. If a machine has no use, is this to be decided under 102/103 or as a matter of 101?If a composition has no use, is this a 102/103 issue not a 101 issue.A programmed computer just sitting there calculating numbers that are not used for anything is useful to generate heat, but this kind of utility is the same kind as the proverbial boat anchor for most useless objects. The utility of a programmed computer for calculating numbers is old and conventional and is not changed by the numbers it calculates.When the final product of a process is not used, the problem is not really a 102/103 issue. When a machine is claimed whose utility is unchanged, the issue is 101. That the claimed subject matter may be unobvious is all but irrelevant. The SC requires that a process produce a useful end. That usefulness cannot be, I submit, of the boat anchor variety.

                11. It seems to me that a purely mathematical equation that results in a number is obvious. Even if it is a new equation that somehow no one has thought of yet (I doubt there are many). Where/how the variables that enter that equation come from and what that resulting number does to some thing in the real world may not be obvious.

                12. Calistus, what you say may have been the law and I think it was the law prior to ‘52. But without adding in some idea of a real functional difference, obviousness descends at time into the ridiculous. Is a particular number obvious? How does one even go to prove that?

                13. “Fighting this point under 101 messes up the whole system and is anti-patent in effect.”FIrst, how does it “mess up the ‘whole system'”? And second: so … wut? “Arguing that the gate was opened wrongly after the fact is hostile to inventors and the patent system as a whole. It’s an abstract attack that can only be reasonably argued for or against in the abstract.”O noes! Wouldn’t want to be “hostile”! And oh noes, it’s only argued for or against in the abstract, where the claim is being argued to be! O noes! O noes! “That should cause it to fail under 102/103.”How on earth would it cause the claim to fail under 102/103? And furthermore, how does putting the number to a use magically make it not fail 102/103? Beyond that, are we now to have a whole class of things being patentably distinguished in terms of their intended use?

                14. He means as claimed. And there are many such claims that generate numbers and never put them to use in the claim. Though I don’t share ned’s views so to me it’s pretty much irrelevant.

                15. if the final output of a process (or system) is something which is not used then the process (and system) are not patent eligible?

                16. Lefty, imagine a claim to a machine that has no use. Is that eligible simply because I claim a machine?

                17. Nice strawman Ned.Instead of creating strawmen, why don’t you address the half dozen points or so I have raised against your ‘arguments?'(and to answer your strawman, it would NOT be ineligible for the consideration under discussion, but for a different consideration). Ned, further to your misstatement above, non-utility is NOT synonymous with being abstract.ADD: “Abstract” is one of the judicial exceptions to the 101 eligible subject matter category discussion, and not related to the 101 utility discussion. This new ‘pet’ argument of Ned’s is pure obfuscation and is intellectually dishonest.Ned, please stop obfuscating.

                18. “I think your argument is that since a 1 has a meaning that is abstract, “Closer to his point I believe would be that since 1 has ONLY a meaning that is abstract…

      3. Ned please describe what a “1” is? Are those things that angels speak to you? Where are those 1’s Ned?Ned, information takes space, time, and energy to represent and to transform. Please, Ned, tell us what a 1 is. And, try to base your arguments on science not 1920’s philosophy.

        1. Night, if it takes energy to transform a 1, then it must be physical in some sense. Therefore, please describe the structure of a 1. Let’s start with this: what is the mass of a 1?

          1. You didn’t answer my question. What is a 1 Ned? What is a 1 to you? You seem to telling us that a 1 to you is represented by angels, or that you mind exists magically with no physical basis. You NED tell us what a 1 is to you.

            1. Night, a 1 is abstract. A thing is not. But what is a “1 thing”?A number is abstract. A signal is not. We might describe the signal in terms of numbers, but, like the “1 thing” example, it remains real and physical.Limit the math to signals, to signals received and transmitted, and you may traverse from the metaphysical to the physical.

              1. Sheer nonsense. How about you tell me how a computer — a machine–sitting there performing useful work is abstract? Is that abstract math represented in your head Ned? is that 1 represented in your head Ned? Do the claims define a set of machines that one skilled in the art understand? If so, how is that abstract? Please stop trying to hide behind this word abstract. The question –for the modern mind–is scope of enablement and enablement. Just bizarre that in the 21st century we have to deal with arguments that there is no physical basis for thinking.

              2. Ned,With your view here that signals are not abstract and that they are real and physical, please comment on Nuitjen.If your comments run only to the ‘transience’ prong, please explain the ‘transience’ of those little lights up in the night sky being longer lived than any (other) physical invention ever in patenting at any time during human history.Thanks.

                1. Anon, a process and/or a machine that produces signals, real signals, is eligible. Dolbear v. American Bell Telephone Company, 126 U.S. 1, 8 S. Ct. 778, 31 L. Ed. 863 (1888) where the patentability of claim five was affirmed.5. The method of, and apparatus for, transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds, substantially as set forth.”Bell discovered that it could be done by gradually changing the intensity of a continuous electric current, so as to make it correspond exactly to the changes in the density of the air caused by the sound of the voice. This was his art. He then 533*533 devised a way in which these changes of intensity could be made and speech actually transmitted. Thus his art was put in a condition for practical use.In doing this, both discovery and invention, in the popular sense of those terms, were involved; discovery in finding the art, and invention in devising the means of making it useful. For such discoveries and such inventions the law has given the discoverer and inventor the right to a patent.”

                2. Nuitjen simply holds that a signal is not an article of manufacture. That does not mean the machines or processes that create the single are not eligible.

                3. (sigh),Go deeper – why is a man-made item, distinct from nature not an article of manufacture in Nuitjen.Remember what I have already posted (and what you have posted): Nuitjen’s argument prong on the ‘physical’ and real nature of the signal has been relinquished. The only prong left is the ‘transient’ prong. Look up into the clear night sky to see why that argument prong is pure fallacy.

  17. Nah bro, but I’ll abide by what they decide until the ruling gets congress’s attention and they flip flop.

    1. “The Supreme Court won’t hear a similar case involving two other companies, WildTangent Inc, and Ultramercial Inc., but agreed to hear the Alice case.”

          1. LOL – the CBC news article quotes a guy from EFF who doesn’t understand the difference between patents and copyrights and what each legal regime covers.Plus the article is wrong, as it says the case definitely won’t be picked up, and that has not yet been determined. (pay attention 6)You have just got to do better, 6.

            1. From the article you ta rd:”The Supreme Court won’t hear a similar case involving two other companies, WildTangent Inc, and Ultramercial Inc., but agreed to hear the Alice case.”

      1. I’m not sure, but it doesn’t look like SCOTUS actually issued any orders in Wildtangent. They issued only one order today (Alice). SCOTUSblog says they expect more orders for the December 6 conference to be issued on Monday.

        1. Ultramercial had decided not to file a response brief, but it looks like the Supremes really want them to file one. It’s due in a month.

  18. Why is 101 even an issue for these cases? In Alice, as in Bilsky and in Ultramercial, we’re looking at claims for century old business practices with the only innovation being that they’re done with a computer. And they’re claimed with that computer in the most direct, broad, and vaguely specified way with absolutely no guidance that would help any PHOSITA to build the computers any better.It should take any judge or examiner five minutes to note that these applications contained no patentable invention under 103.Wouldn’t it be better to discuss 101 in the context of a patent that might be able to pass scrutiny under 102, 103, and 112? I know the maxim that hard cases make bad law but I think facing that challenge is the Supreme Court’s remit. Moot cases that should be easy 103 rejections can make bad law, too.

    1. The reality that nobody wants to talk about is that if you applied standard law to software patents about a third to half of them would be immediately knocked out for lack of written description. Mere claim of functionality with no support for genus = WD failure. That’s even assuming you don’t touch the fiction that merely mentioning a function enables it.

      1. Mere claim of functionality with no support for genus = WD failureGo read MPEP 2163 (a good enough place to start), and tell me where you found that.link to uspto.gov…While you are at it, you might stumble upon this:Fonar Corp. v. General Electric Co., 107 F.3d 1543, 1549, 41 USPQ2d 1801, 1805 (Fed. Cir. 1997) (“As a general rule, where software constitutes part of a best mode of carrying out an invention, description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed. * * * Thus, flow charts or source code listings are not a requirement for adequately disclosing the functions of software.”).

        1. An accurate quote of another ridiculous CAFC opinion:*description of such a best mode is satisfied by a disclosure of the functions of the software. This is because, normally, writing code for such software is within the skill of the art, not requiring undue experimentation, once its functions have been disclosed.*The logical conclusion of that would be that software is presumably excluded under 103. After all, a PHOSITA doesn’t need any guidance to make it work.On the other hand, the whole argument indicates that the CAFC has listened to anyone whatsoever who has ever written any kind of computer software. The functions are the trivial part; it’s the implementation that’s always challenging. But that implementation is even less appropriate for patenting.

          1. The logical conclusion of that would be that software is presumably excluded under 103. After all, a PHOSITA doesn’t need any guidance to make it work.You seem to forget “Patentability shall not be negated by the manner in which the invention was made.” That fact that it is (sometimes) easy to practice once disclosed cannot be held against it.it’s the implementation that’s always challengingPerhaps commercially viable implementations (sometimes). However, that isn’t the requirement.

            1. “You seem to forget “Patentability shall not be negated by the manner in which the invention was made.” That fact that it is (sometimes) easy to practice once disclosed cannot be held against it.”But that’s a facially ridiculous statement when the only disclosure is that a function can be done. Everyone knows that a computer will do the functions you program it to do. If it is enabled afterwords and the only thing you added was that it could be done, you really haven’t added anything, and it was obvious beforehand.

              1. It should likely be that all the software methods and whatnot are inherent in the device as the device’s intended use. But no no no, that’s just not right!

                1. I didn’t say that it’s all “in there”. They are simply many of the device’s intended uses.

                2. You have no idea what you are saying in the legal context 6.To wit: my big box of all the elements and abundant protons, neutrons and electrons has all future inventions “in there.”But 6 – you are saying exactly that without realizing it. You are saying that all future permutations are captured as “intended use” because the machine is built to be changed. You are attempting to capture all future changes not yet invented – so very Morse of you.But so very wrong..add: “They are simply many of the device’s intended uses.”What are the intended uses of protons, neutrons and electrons? I will (once again) refer you to my great big toybox of protons, neutrons, and electrons all ‘built to be changed’ and put together according to natural laws of building molecules. The intended use of my toybox (according to your ‘logic’) removes ALL chemistry, bio-chemistry and even manufactures from the patent world. What? No answer to this conundrum, yet again? Come 6, speak up, I cannot hear you.

                3. And again, I didn’t say that it was “in there”.Borrow much straw from your bro Guru lately?

              2. you really haven’t added anythingHas it ever crossed your mind that the heart of the invention may lay in the function itself — not the one of thousand different ways the function can be implemented?

                1. Has it ever crossed your mind that he perhaps doesn’t consider a function to be the “heart” of any “invention”? And furthermore if it is so then perhaps he may consider that an invalid “invention” as claimed with such at its “heart”?

                2. “Has it ever crossed your mind that the heart of the invention may lay in the function itself — not the one of thousand different ways the function can be implemented?”That raises a myriad of problems. 1) That statement ensures a 101 rejection. You’ve never been allowed to claim the “ends” (i.e. I claim all solutions to problem X) you can only claim the “means” (I claim my solution as follows). That’s why pure functional claiming is disallowed. How is that different than Morse’s rejected claim?2) Without a statement as to implementation there’s no proof that you’re in possession of the function regardless of if its enabled. Imagine me getting a patent on Star Trek transporter, self-driving car, etc, purely because I state that I have one. Why would it be any different for computer code?3) It frustrates the purpose of the patent system on two levels: First, it allows someone to change a commercial wish into a patentable monopoly with no additional work (I think a smartphone which dispenses chocolate would make money, I know that people could write code to dispense a liquid, therefore under your logic I could write a patent despite having done nothing. In fact, my six year old niece could write the patent, as it requires no technical statements at all. This raises the interesting question of how one would define a PHOSITA when you’re lumping in kindergartners with Comp Sci majors.) Second, the claiming is so broad there is no means to either go around the patent nor improve upon it. The monopoly would not be a monopoly on an item but on a field. That ought to be a telltale sign you’re too broad.4) If the invention is in the function itself and not its implemention, it is rejectable under even fantasy implementations. Notably, this would render the claims in Alice anticipated by the “ancient” prior art. But it goes even further than that: You claim a machine that converts water into wine? Anticipated by the bible. You claim a self-driving car? Rejectable under Minority Report. Watch phone? Dick Tracy! Why should the PTO give a patent to someone who discloses no more than your average Sunday comic?So has it crossed my mind that people may think the invention is in the function itself, rather than the implementation? Yes. Do I worry about that? Not since the Morse machine.

            2. “However, that isn’t the requirement.”Though it should be. And when congress gets around to implementing protection for the functionality of software as distinct from the patent system, I’d venture to say they’d make it a req. They’re reasonable people unlike software lawlta rds.

          2. All chemistry is excluded under your thought process Owen.Protons, neutrons, and electrons are all old in the art – amongst some of the oldest things in the universe. The natural law by which they attach is also old in the art. All that is left is ‘implementation’ which for some (unknown) reason, you disdain.

        2. Pre-Ariad garbage decision tying WD to enablement. I still can’t believe it took so long for someone to bring the issue in Ariad to the fore. Law goes into effect in 1952, over 50 years later we learn there are in fact separate reqs under 112 first regarding WD and enablement.

            1. Trust me, I will be. Along with many others. The MPEP writers are far from perfect. You can also check out their section on restrictions and 101. Woefully incomplete and in some cases outright misleading. .Though in the mean time I’m bound by the law, not so much the MPEP.

        3. The standard for describing a particular means is relayed in Aristocrat and it’s parentage. The standard for describing a genus is the particular means + either a) sufficient other exams to prove possession of the expanded scope or b) description of the principle that would allow one to expand the scope. I know its confusing since most never even give the species description.Perhaps a more concrete example: NASA used the Apollo 11 spacecraft to land Neil Armstrong on the moon and return him to Earth. Assume NASA discloses how to make the Apollo 11 craft and the method they followed for the flight. NASA may then claim a) Apollo 11 and b) their method used to land on the moon. What NASA cannot claim is a) All spacecraft capable of going to the moon and b) landing on the moon. This is because it is clear NASA has neither enabled nor possesses the expanded scope.What is happening in software is even worse, because applicants don’t even do the software equivilent of disclosing Apollo 11, they just simply state “Moon travel is possible” with an unstated secondary of “and one of ordinary skill in the art could do it.”The second statement is a legal fiction that provides enablement when none exists, since if it were accurate computer companies would be staffed with a tenth of the personell they do now and the word Beta test would not be in our vocabulary.The first statement provides no proof of ownership at all. It doesn’t even really claim to. It’s equivilent to Kennedy giving his speech that “we choose to go to the moon not because it is easy, but because it is hard.” It’s simply not patentably useful at all.Returning the example to software: Applicant merely claims a computer solving problem P with function F. Applicant clearly is not in possession of all means of achieving function F, and his scope of invention is not comessurate with his claim scope. Further, because (most times) Applicant only states “My computer can do function F” we can’t even verify that Applicant is in possession of ONE way of achieving function F. Thus WD failure. See MPEP 2163 and 2181.Again, this ignores the ridiculous conclusion that a patent that issues based on “my computer can do function F” means that a) function F was non-obvious prior to the patent and b) the mere mention that the function COULD BE DONE enabled it. As if a PHOSITA is not aware that a computer can do any function you tell it to do.

          1. This is not true, Random Guy. The fact is that functional claims do enable one skilled in the art to build a machine. There are plenty of functional claims I could write that are not enabled by a specification. One need only gain some historical perspective to understand this. If what you say were true, then 30 years ago why didn’t we see patent applications claiming the inventions of today? Oh well, don’t have time to fight this one right now. But if you care to figure this out you can. Work at it. Ask yourself some real questions. Like does the claim define a set of machines that one sklled in the art understands? And then think about that set.

            1. Saying that something can be done isn’t inventing, it is cheerleading. “One need only gain some historical perspective to understand this.” I, Robot was published in 1950. Star Trek aired in 1966. Escrow, as the court noted, is ancient. The idea is old, the state of the art has simply caught up. But by definition the state of the art itself cannot provide patentability.Maybe you’re misunderstanding my stance: I’m not saying things can’t be enabled by mentioning. I can mention that data storage exists, I don’t have to re-explain how to store data in every application. But what I can’t do is simultaneously claim something is nonobvious to beat 103 and yet enabled to beat 112 when the only difference between the prior art and the prior art + my teaching is the phrase “My computer can do function F”.If one were to draw a continuum of invention, there is a range that is denied to an applicant because it is obvious under 103. There is a range on the other side of the continuum that is denied to the applicant because, after the application it is still unenabled or undescribed under 112. The middle range between the two is allowable subject matter for the given application. When the only disclosure is that a function can be done, the middle range is shrunken to be wholly nonexistent, because the thing being added (“A computer can do a function”) was already known to everyone.If the claim is to software that provides a function for turning your watch into a phone, and you don’t further describe the algorithm to achieve it, you’re either infringing someone earlier or you’re a fictional Dick Tracy, but you’re not the first inventor to file entitled to a patent.

            2. ” If what you say were true, then 30 years ago why didn’t we see patent applications claiming the inventions of today?”I’m pretty sure there are a few submarines still kicking around.

        4. Patent_Guru, the paragraph you are looking for is in reference to Lizardtech and begins with the phrase “The federal circuit has explained…” The standard application is even less disclosure that Lizardtech, since Lizardtech disclosed one particular species and then tried to claim the genus. Many applications do not even describe a particular species.

    2. “Why is 101 even an issue for these cases?”To paraphrase Lemley: “It is easier to attack software patents with the nuclear bomb of 101 than individually through 102, 103 or 112″When (if?) the archives are restored, you can check out the comments to the 50 Year Old Battle Thread in which I point out that patent eligibility and patentability are being purposefully conflated. The purpose is based on the desired tool of those not wanting to allow eligibility where Congress has not ruled out such eligibility.

      1. To paraphrase Lemley: “It is easier to attack software patents with the nuclear bomb of 101 than individually through 102, 103 or 112″Exactly. Why throw out the bathwater when you throw out the baby, the tub, the bathroom, and the house in which the bathroom is located. Just nuke the house, and you’ll make sure you have no more dirty bathwater.

        1. Where did Mark Lemley say that? To me, it seems simpler to prove non-novelty (102) than something vague like “unacceptable abstractness” (=101).

          1. Lemley has said such – I don’t have the reference handy, but such is not out of line with his well known views.As to “proving,” your comment makes me think that you have not been following recent US jurisprudence and the whole ‘pornogr@phic-I -know-it-when-I-see-it mentality of the Court.

            1. Oh yes, I am ready to admit that. Still I have the present case (CLS v. Alice) in mind, and frankly it gives me the impression that the “101” debate is not quite settled, to put it mildly.

        1. Indeed. Case law associated with 101 excludes “abstract ideas” but no one knows what an abstract idea is. Isn’t every idea abstract simply because it is an idea? Remeber that an invention eventually is a thought rather than a thing although the statute is not very clear in this respect.Various tests were developed to distinguish abstract ideas: the FWA test in the ’80s, the requirement of a “useful concrete and tangible result”in the ’90s, and the Machine Or Transformation Test in the past decade. And none of them lived very long.Still the Alice patent may relate to a non-novel idea, with an obvious implementation. Frankly, that would be a pity, since I would be interested in a SCOTUS statement about business method patentability.

          1. “Remeber that an invention eventually is a thought rather than a thingalthough the statute is not very clear in this respect.”A nice assertion. I don’t know where you got that dmbsht from though. Did you make it up yourself?

            1. Is it a problem to think myself occasionally, instead of just quoting?The disclosure provisions (35USC112/83EPC) require a description that can be carried out. An invention basically is a trick. Inventions can be patented long before a single instance of the actual product is manufactured.”Not very clear”: statutes also provide that infringement can occur if “the invention” is (e.g.) kept in stock. For more information, refer to Kraßer, Lehrbuch des Patentrechts. Sorry if you do not read German.

              1. FritsJansen, Here in the states the concept is called Constructive Reduction to Practice.And you are absolutely correct (and in fact, correct for ALL patents and ALL art fields): Inventions can be patented long before a single instance of ANY actual product is manufactured (actual manufacture is not a requirement).add: example of one of the ‘too much stuff that is nonsensical’: “software is not a Useful Art.” by 6.

              2. “Is it a problem to think myself occasionally, instead of just quoting?”You can do it, but try to keep it sensical. Too much nonsensical stuff on these boards to begin with. “The disclosure provisions (35USC112/83EPC) require a description that can be carried out. An invention basically is a trick.”It might be a “trick” in the EPO, but it isn’t in the US. And somehow I think they might disagree with you at the EPO too.

                1. Of course, this is an informal designation. But IMHO it is helpful for understanding. A valuable “thing” that can be carried out colloquially is a “trick”. It is NOT a thing, as other commentators have confirmed. The perception that a process patent is TOTALLY different IMHO is wrong.

    3. Owen, you certainly hit the nail on the head here. The fact that there is any controversy at all illustrates that the proponents real purpose is to patent business methods, albeit limited to computers. This is why the Supreme Court decision in Bilski was such a tragedy in that that decision did not make clear why the claims were abstract. Was a because the claims were manipulating something abstract such as “risk?” Or was it because the claims were not limited to a computer implementation? The Supreme Court will now hopefully answer that question.

      1. Ned,You failed to provide a proper legal citation backing up your claim that business methods are not patent eligible subject matter.You need to overcome the History of the Patent Office, Congress and the Supreme Court to do so.You will not – because you cannot.(and I love down votes when I am asking for legal citations – it just proves that my being correct is more than some can handle)

  19. The court should just outlaw business competition, period. Nothing chills investment more than that, and the only thing that matters is not chilling investment. Also, every idea is an invention, and every invention deserves to belong solely to its inventor(s) so therefore we need a “first to think” system. Then the price for forbidden (e,g. owned by others) thoughts can be very high- lets say at least $500K pure accusation, plus suing anyone you may have shared the idea with. Also Star Wars should be patented because its so unfair to George Lucas that other people can make space movies. Besides, what’s good for IBM is good for America, and more patents are good for IBM.

  20. Can someone please petition the Fed. Ct. or SCOTUS with a basic 101 invalidated patent that doesn’t involve a financial transaction?

    1. Well, it’s the banks that have the most money to litigate, but I understand that Ultramercial has appealed directly to the Supremes this year. I’d like to see that argued alongside Alice; they might illuminate some good issues together.The full CAFC hasn’t hashed over Ultramercial yet, so that might encourage the Supremes to wait, though.

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