By Dennis Crouch
The question of patentable subject matter is nominally grounded in the statute 35 U.S.C. § 101. That statute offers patent rights to anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter.” However, very few section 101 cases actually refer to the statutory text. Rather, the focus is on the Supreme interpretative stance that the statute also prohibits patents on abstract ideas, products of nature, and natural phenomena. It is the definition of Abstract Idea that is at stake in Alice Corporation Pty. Ltd. v. CLS Bank Int’l. [TRANSCRIPT OF ORAL ARGUMENTS]
Alice Corp.’s patent covers a computerized escrow system and method that CLS Bank allegedly uses in the process of settling trillions of dollars in transactions each week. After Alice Corp., sued CLS Bank for infringement, CLS responsively argued that the patent claims are invalid as impermissibly encompassing an abstract idea.
In the background, the Supreme Court has decided three recent Section 101 cases: Bilski, Mayo, and Myriad. Arguing for CLS Bank, Mark Perry argued that these two cases determine the outcome here.
MR. PERRY: Bilski holds that a fundamental economic principle is an abstract idea and Mayo holds that running such a principle on a computer is, quote, “not a patentable application of that principle.” Those two propositions are sufficient to dispose of this case. If Bilski and Mayo stand, Alice’s patents fail.
Rather, to be patent eligible, CLS Bank argues, the computer implementation must offer a “technological solution.”
MR. PERRY: We know from Benson, the Court’s seminal computer implementation case, that if you can do it by head and hand, then the computer doesn’t add anything inventive within the meaning of the 101 exception. That is the holding of Benson. And the Court reiterated that in Mayo. Flook said exactly the same thing. If you can do it with pencil and paper, then the computer is not offering anything that the patent laws are or should be concerned with.
It is only where the method will not work without a computer, which is not these claims, and where the computer itself is doing something that the patent law is willing to protect.
Justice Ginsburg asked why – if it is such a simple case – why the Federal Circuit struggled so:
JUSTICE GINSBURG: The Federal Circuit in this case split in many ways, and it had our decisions to deal with. You said, given Bilski and Mayo, this is an easy case. What is the instruction that escaped a good number of judges on the Federal Circuit? How would you state the rule?
MR. PERRY: Your Honor, I think there’s a significant element to the Federal Circuit that disagrees with Mayo and has been resistant in applying it. Chief Judge former Chief Judge Michel filed a brief in this Court essentially saying Mayo is a life sciences case, You should limit it to that because if you apply it to everything else, then these patents are no good. Mayo we submit is a technology-neutral, Industry-neutral, exception-neutral framework that can be used to answer all of these questions.
We should note here, that, although CLS Bank sees the Mayo test as exception-neutral, the respondent was not asked to explain why the test was not applied the most recent Section 101 case of Myriad.
The reference to Mayo/Flook is important – with the notion that to be patent eligible there must be a technological innovation rather than discovery of an abstract idea followed by routine technological implementation of that idea. The result of the Mayo/Flook approach is that patent eligibility is temporally dependent. In particular, innovations that were once patent eligible will later be not eligible once the implementing-technology becomes well known. Mr. Perry explains:
JUSTICE SOTOMAYOR: How about email and just word processing programs?
MR. PERRY: At a point in time in the past, I think both of those would have been technological advances that were patentable. . . . Because they would have provided a technological solution to a then unmet problem. Today, reciting, and do it on a word processor is no different than and do it on a typewriter or and do it on a calculator.
The inventive contribution component, which uses specifically the language of conventional and routine and well understood, will evolve with technology. That’s why it’s different than the abstract idea component.
Mr. Phillips responds somewhat weakly that there must be “significant limitations on the extent to which novelty has to be built into 101.
There is some potential that the decision will be rather small – deciding that an escrow-settlement method is an abstract idea and that the routine addition of computers to facilitate the method does not alter that original conclusion. This result would essentially parallel the results of Bilski v. Kappos and would potentially add nothing of substance to the law. Many of the questions followed this line of thinking and Alice’s attorney, Carter Phillips, repeatedly worked to explain how the technological aspect of the invention is much more complex that has been commonly caricaturized. CLS Bank argued the opposite.
JUSTICE GINSBURG: On the abstract idea, you know that the Bilski case held that hedging qualified as an abstract idea. So how is intermediate settlement a less abstract than hedging?
MR. PHILLIPS: … What we claim is a very specific way of dealing with a problem that came into being in the early 1970s of how to try to eliminate the risk of nonsettlement in these very massive multiparty problems in which you need to deal with difficulties that exist at different time zones simultaneously and to do it with a computer so that you not only take them on chronologically, deal with them sequentially, based on the kind software analysis that the patent specifically describes by function.
And it goes even further than that, and does something that no escrow agent and no … settler that I know of. It actually blocks specific transactions that, in the shadow account, would violate the terms of the settlement that would ultimately be implemented.
. . . [This is an invention that] you cannot, absolutely cannot [implement this system without a computer], because it is so complex and so many interrelated parts.
. . . I believe that if you analyze the claims and you don’t caricature them and you don’t strip them out of the limitations that are embedded in there, this is not some kind of an abstract concept. This is not some kind it’s not an abstract idea..
JUSTICE KAGAN: There is something that you’ve patented that has that is not just simple use a third party to do a settlement. . . . And what is that, putting the computer aside?
MR. PHILLIPS: It is well and again, it’s difficult to do that because you absolutely need the computer in order to implement this. But the key to the invention is the notion of being able simultaneously, dealing with it on a chronological basis to stop transactions that will otherwise interfere with the ability to settle on time and under the appropriate circumstances. And the only way you can do that in a realtime basis when you’re dealing with a global economy is to use a computer. It is necessary to the efficacy of this. So in that sense, I can’t I can’t disaggregate it the way in some sense you’re suggesting. It seems to me it’s bound up with in it’s bounds up with the whole notion of is this an abstract concept. . . .
MR. PERRY: On the abstract idea, Justice Ginsburg, you asked Mr. Phillips what’s the difference between hedging and this claim. There is no difference. This is hedging. It is hedging against credit default rather than price fluctuation, but it is simply hedging. . . . Mr. Phillips suggests, well, we have multilateral transactions, global things, chronological, time zones and so forth. None of those are claimed, Your Honor. Those are all recited in specification. The claims read on a single transaction involving two parties.
JUSTICE SCALIA: Why isn’t it why isn’t doing it through a computer not enough? I mean, was the cotton gin not an invention because it just means you’re doing through a machine what people used to do by hand? It’s not an invention. It’s the same old, same old. Why is a computer any different in that respect?
MR. PHILLIPS: At one level I agree with you completely. There is no difference between them.
This Court has, however, said on more than a few occasions, albeit in dicta, that coming up with an idea and then say, use a computer, is not sufficient. And what I’m trying to suggest to you is we don’t fall within that dicta. Now, if you don’t accept the dicta and you say use a computer is fine, then I think we’re done.
MR. PERRY: Of course, a patent that describes sufficiently how a computer does a new and useful thing, whether it’s data compression or any other technological solution to a business problem, a social problem, or a technological problem, would be within the realm of the of the patent laws. That is what the patent laws have always been for. . . . Those algorithms, those inventions are undoubtedly technological. And if they are used in a trading platform or a hedging system or something else, that wouldn’t disable them [as patent eligible].
The bigger version of the decision would more particularly address software patenting. Here, Alice suggests that the case is very much about the ongoing viability of software patents:
JUSTICE KENNEDY: You understand the government to say no software patents.
MR. PHILLIPS: That’s the way I interpret the government’s the government’s brief.
However, both CLS Bank and the Government argue otherwise. Mr. Perry states “this will not affect software patents. . . . [Rather,] we are talking about a group of patents … that’s way out at the tail end of the distribution.” Likewise, the Solicitor General Verrilli argued that “it’s just not correct to say that our approach would make software patenting ineligible. [In our proposed test] any software patent that improves the functioning of the computer technology is eligible. Any software patent that improves that is used to improve another technology is eligible.” In thinking about the consequences for patentees who already hold patents that may become ineligible, Mr. Perry suggested that their problems are minimal because “the patent holder would have the opportunity to institute a reexamination proceeding or some sort of administration process to address that issue.”
Justice Breyer indicated the importance of creating a rule that works:
JUSTICE BREYER: There is a risk that you will take business in the United States or large segments and instead of having competition on price, service and better production methods, we’ll have competition on who has the best patent lawyer. . . . And if you go the other way and say never, then what you do is you rule out real inventions with computers. . . . [The amicus briefs provide] a number of suggestions as to how to go between Scylla and Charybdis. . . . I need to know what in your opinion is the best way of sailing between these two serious arms.
MR. PHILLIPS: Well, Justice Breyer, I guess I would suggest to you that you might want to deal with the problem you know as opposed to the problems you don’t know at this stage. I mean, we have had business method patents and software patents in existence for well over a decade and they’re obviously quite significant in number. And and we know what the system is we have. And Congress looked at that system, right, and didn’t say no to business methods patents, didn’t say no to software patents, instead said the solution to this problem is to get it out of the judicial process and create an administrative process, but leave the substantive standards intact.
So my suggestion to you would be follow that same advice, a liberal interpretation of 101 and not a caricature of the claims, analyze the claims as written, and therefore say that the solution is 102 and 103 and use the administrative process.
. . . . So on the one hand, you’ve got a problem that it seems to me Congress to some extent has said is okay and we’ve got a solution and that solution’s playing through. On the other hand, if this Court were to say much more categorically either that there’s no such thing as business method patents or adopt the Solicitor General’s interpretation, which is to say that there cannot be software unless the software somehow actually improves the computer, as opposed to software improving every other device or any other mechanism that might be out there.
What we know is that this would inherently declare and in one fell swoop hundreds of thousands of patents invalid, and the consequences of that it seems to me are utterly unknowable. And before the Court goes down that path, I would think it would think long and hard about whether isn’t that a judgment that Congress ought to make. And It seems to me in that sense you’re essentially where the Court was in Chakrabarty, where everybody was saying you’ve got to act in one way or the other or the world comes to an end, and the courts have said, we’ll apply 101 directly. . . .
MR. PERRY: That path between Scylla and Charybdis was charted in Bilski and Mayo. Bilski holds that a fundamental economic principle is an abstract idea and Mayo holds that running such a principle on a computer is, quote, “not a patentable application of that principle.” Those two propositions are sufficient to dispose of this case. If Bilski and Mayo stand, Alice’s patents fail.
The Government test is a bit difficult to fully discern and even General Verrili had some trouble explaining:
JUSTICE BREYER: I think you say a computer improvement that, in fact, leads to an improvement in harvesting cotton is an improvement through a computer of technology, so it qualifies. But then I think you were going to say, or I got this also from the brief, a computer improvement that leads to an improvement in the methods of selling bonds over the telephone is not an improvement in technology reached by the computer. Am I right about the distinction you’re making?
GENERAL VERRILLI: I don’t think there’s a yes or no answer to that question. [But,] that is generally the line we’re drawing.
JUSTICE GINSBURG: I have a question about how do you identify an abstract concept. A natural phenomenon, a mathematical formula, those are easy to identify, but there has been some confusion on what qualifies as an abstract concept.
GENERAL VERRILLI: We would define abstract an abstract concept as a claim that is not directed to a concrete innovation in technology, science, or the industrial arts. So it’s the it’s abstract in the sense that it is not a concrete innovation in the traditional realm of patent law.
Although seemingly not relevant to the present case, Alice took some pains to explain why their patent includes no software code:
MR. PHILLIPS: what we did here is what the Patent and Trademark Office encourages us to do and encourages all software patent writers to do, which is to identify the functions that you want to be provided for with the software and leave it then to the software writers, who I gather are, you know, quite capable of converting these functions into very specific code. . . .
It doesn’t actually, obviously, put in the code, but that’s what the PTO says don’t do. Don’t put in the code because nobody understands code, so but put in the functions, and we know and we know that someone skilled in the art will be able to put in the code. And if they aren’t, if they can’t do that, then it’s not enabled and that’s a 112 problem.
This discussion of functionality may foreshadow the upcoming Nautilus case. On that point, Justice Sotomayor asked whether Alice is “trying to revive the patenting of a function?” Mr. Phillips did not directly respond.
In the end, Alice Corp’s case of technological innovation is slight. Mr. Phillips agreed with Justice Kennedy that it would be “fairly easy” for a “second year college class in engineering” to draft the claimed software – giving the court additional fodder for rejecting this case merely with a string citation to Bilski, Flook, and Benson.
[…] and PatentlyO analyze the oral arguments, and Patent Docs offers a review of the briefs on both […]
[…] can read the transcript of the oral arguments here. Some extracts here. You can also find the parties’ more detailed, written arguments and those of the many amici […]
Anyone want to guess at the number of questions/points of law put to Ned that he has failed to provide direct and intellectually honest (and correct) answers or responses to ?
[By way of prediction only and not forgetting we should await judgment]
JUSTICE PRALINE: “These patents have passed on! They are no more! They have ceased to be! They are expired and gone to meet their maker! They are stiffs! Bereft of life, they rest in peace in peace! If they had not been nailed to the Supreme Court docket, they’d be pushing up the daisies! Their metabolic processes are now history! They are off the twig! They have kicked the bucket, shuffled off their mortal coil, run down the curtain and joined the bleedin’ choir invisible!! THESE ARE EX-PATENTS!!”
[With apologies to Monty Python]
Yes, Paul, and you should add ergo our jobs have been deemed to be valueless and we are to take a pay cut to $0 per year. Since all we do is process information and we have held that processing information is worthless.
On the subject of processing information, and the Prometheus decision, did you see my comment on this blog about Pharaoh and Joseph’s interpretation of his dreams? The information given by Joseph was, of course, valueless to Pharaoh, and he had no business in making Joseph chief minister and putting him in power over half his kingdom . The Bible records that!. Or perhaps that is not quite the story that the Bible tells.
The misunderstandings ofvwhat comouters are and what tgey do and how they work is just breathtaking. This mess is just going to get worse as long as judges and lawyers place word games over reality.
Every computer program is exactly a mathematical formula and nothing more. Turning a switch from off to on does not create a new machine. Period.
So a mathematical formula is a series of instructions to a machine?
LOL – the House/Morse fallacy firmly in the mind of a ‘techie’ who admonishes others not to misunderstand what he himself is misunderstanding.
Tell me RMJ, can you obtain a copyright on math (and to forestall those who wish to obfuscate, the question is not on a textbook collection of math) ?
Tell me RMJ, the difference between resistors in series and resistors in parallel.
Software is math is simply a lie. “Turning a switch” is not the proper analogy.
Software as instructions is not a lie. Can you obtain a patent on other forms of instructions?
Marty,
You still need to have that conversation with your attorney on the controlling law regarding the exceptions to the judicial doctrine of written matter.
Your Attorney still faces that ethical dilemma of not having informed consent, as you remain uninformed.
You also did not address what I actually stated:
Software is math is simply a lie.
You also did not answer the question that I actually asked: can you obtain a copyright on math (and to forestall those who wish to obfuscate, the question is not on a textbook collection of math) ?
I notice that you refused to answer this question the first time I asked you as well.
What’s up with that?
No. Software is math. Every third instruction is a comparison, a subtraction if you will, in order to make a decision what to do next. The other instructions are about moving bits from one place to another, which can be viewed as setting X = A… So, software is math, or at least mostly math.
The problem is that the Judicially created exceptions are silly and inappropriate. There is not reason to assert that math, or formulas, or laws of nature, or purely mental steps are not patentable subject matter. Those assertions need to be undone.
No Les – what you describe is not math (using math perhaps), but not math.
Is 3-2 math?
Is A – B math?
If not, what is math?
Les, software is MORE than just an equation. Software uses math – but using math is not the same as math. Engineering uses math. Engineering is not math.
Wake up son.
My question is simple. Why didn’t you answer it?
Why did you instead resort to your defensive tone?
If each instruction in machine code is not an embodiment of a formula, e.g., :
MOV, A, B meaning set A = B
CMP A, B meaning set the Z flag according to the result of = A – B
is not fairly expressed as “software is math”, then what do you consider “math” to be?
Again, it is the silly ruling that formulas are not patentable that is the problem.
Les,
I did answer your question. Use of math is not math.
Pay attention.
My tone is not defensive. Taking the car keys away from you as you slide too far into your mantra is not defensive.
You simply are making bad arguments that need not be made.
I didn’t ask you what software is.
I asked you what math is.
YOU pat attention.
I answered your question by drawing the distinction Les.
Tell me – can you copyright math?
Saying “all software is just math” is like saying “all literature is just an arrangement of letters and punctuation.” It’s true at a basic level, but totally misses the point.
David Stein,
Not only does it miss the point, it obfuscates it and is wrong in the legal sense.
Coddling such errant views is just not helpful.
Anon, you did not answer my question. You took a page out of MM’s book and you avoided the question. You are still childishly avoiding the question.
I didn’t ask you what is not math, I asked you what math is, in your view.
If A – B is not math, what is math?
Once again Les – I did answer your question.
Sorry but making the legal distinction is what is legally significant.
You seem to have a a hard time grasping the terrain we operate in – you seem to want to ignore the fact that we operate in law.
If you want a straight up definition of math, and you do not want to focus on the context of law in that definition, you will only confuse yourself.
For example, pay attention to the treatment of “algorithm” in the Benson case. The straight up definition is explicitly NOT what the Court used.
This is, in part, why I continue to ask people if they can obtain copyright on math. I do not ask if one can obtain copyright on a math book, as that misses the point of the legal context.
It is hilarious that you accuse me of “pulling a Malcolm” as my driving this discussion to be in the legal context is the opposite of that.
The strict definition of math (not in the legal context) per Merriam is
1: the science of numbers and their operations, interrelations, combinations, generalizations, and abstractions and of space configurations and their structure, measurement, transformations, and generalizations.
2: a branch of, operation in, or use of mathematics [the mathematics of physical chemistry].
But as you might see in the analogies of “algorithm” and copyright, this strict definition is not what math means in the legal sense. In the legal sense, the “science” here from “1:”is not the same as the science involved in engineering and the utility aspect of using that science. Conceptually “2:” does differ and is more of the legal version involved in patent and copyright protection. But your wanting to blunder through this without the nuanced understanding of the legal context will only create more confusion for those that may understand the technical world, but are clueless as to the legal world.
Understanding the context and hewing to that context is not in any way Malcolm-like.
Maybe now that you have written that rather lengthy explanation as to why you wont answer the question, “What is math”, you will stop saying that you have answered it.
LOL – Yet again you are wrong Les.
You really have an aversion to recognizing that law is what controls the topic of conversation, don’t you?
Martin, a program is the particular state of a machine. The programmed memory computer was invented right after WWII. Simply substituting different programs does not make a new machine. That is the fallacy.
One can change a computer with microcoded instructions. These are like programs, but unlike them because they are part of the machine.
As well, programs hardwired into ROM become part of the machine. But no one claims such in that way.
Computers as part of larger apparatus or processes are patentable in context. See, Diehr and Alappat.
Programmed computers without more are not new machines.
Ned – your definition is not correct. Can you obtain copyright for a “state of a machine?”
Your view of what creates a new machine is likewise a fallacy. Sorry, but that it the reality of this world.
Your definition of “computer” likewise has been shown to be false.
Lastly, your final statement of “Programmed computers without more are not new machines” is a lie.
They are most definitely new machines. In fact and in law.
Law? Hardly. Otherwise Benson is not good law. To accept Bernhart (prior to Benson) is to reject Benson. Everybody knows this. Thus the advocate of Bernhart are the resistance identified by Perry.
As to Alappat, a holding is on the facts. The court held,
” Rather, claim 15 is limited to the use of a particularly claimed combination of elements performing the particularly claimed combination of calculations to transform, i.e., rasterize, digitized waveforms (data) into anti-aliased, pixel illumination data to produce a smooth waveform.
Furthermore, the claim preamble’s recitation that the subject matter for which Alappat seeks patent protection is a rasterizer for creating a smooth waveform is not a mere field-of-use label having no significance. Indeed, the preamble specifically recites that the claimed rasterizer converts waveform data into output illumination data for a display, and the means elements recited in the body of the claim make reference not only to the inputted waveform data recited in the preamble but also to the output illumination data also recited in the preamble. Claim 15 thus defines a combination of elements constituting a machine for producing an antialiased waveform.”
Given this holding, a programmed computer disconnected from context was not before the court. Everything they might have said on that topic is dicta.
Sorry Ned – your version of Benson may be gone – but that was never the real version, was it?
“We do not so hold”
LOL
Re Alappat: “A holding is on the facts”
You say that word (holding) but you do not appear to know what that word means.
It is a FACT that the government made a number of challenges, each of which, if successful, would have changed the outcome of the case.
That, my friend is what defines the holdings of a case.
Sorry Ned, you lose.
Black’s Law Dictionary:
holding, n.
1. A court’s determination of a matter of law pivotal to its decision; a principal drawn from such a decision.
2. A ruling on evidence or other questions presented at trial.
Emphasis added – you lose. On the facts of what a holding means.
Will you finally respect the law, Ned Heller?
Anon –
It is dishonest. Those analogies, (an we noticed you did not address the loom) do not raise a useful arts issue. The removable/replaceable medium can fairly be viewed as instructions for a machine. In the case of the piano, they say move lever A to position x for a 1/16 of a second, 2/8 of a second later move lever R to position y for 1/2 second etc.
With the Blu-ray, the instructions are similar, but refer to controlling light sources and audio signal levels.
They are fairly viewed as instructions for the machine.
Les,
You continue to be flat out wrong – both in the fact that the analogies do cross the line between Useful Arts and non-Useful Arts, and in your lack of appreciation of the legal significance of this line-crossing.
You continue to cry “dishonest” when your lack of appreciation paints you as plainly ignorant. Your attempts at reaching a non-law context are doomed to failure. You really do need to understand the context – the terrain – in which you operate. It is not dishonest to honestly note that you seem clueless in this regard.
Anon –
I fully understand the terrain you want to operate in is a swap of legal fictions, posturing and lies.
The courts have proclaimed edicts without even understanding what they have said and you have grown accustomed to wallowing in that muck and you feel threatened by even a conversation imagining how nice it would be to drain the swamp. That I won’t play your game does not make me ignorant.
Stop your childish name calling, get out of the muck and dry off, you’re all wet.
You keep on plowing through those delusions you have surrounded yourself with Les.
Calling law a “swa[m]p of lies” puts you right in that 6 category of making something up totally in your mind.
Congrats on that.
Hint: my basis of law is NOT just “the courts.” Do you even recognize what law is?
Ned
Programmed computers are at a minimum improved machines and are therefore patent eligible.
Ned has consistently refused to explain how ‘oldbox’ without change “magically” obtains a new functionality not present prior to the change.
Simple questions that go to the heart of the software patent eligibility issue – watch the anti’s run away.
Ned’s answer would likely be that what is changed is the work piece.
While I believe this is all semantics and that a programmed computer is fairly construed to be a new machine, and patent eligible, this other point of view is a fair one.
The argument that A Blu-Ray player does not become a new machine because you removed a Star Wars disk and inserted a Gravity disk, is a fair one.
Equally fair however, is the assertion that the Blu-Ray player can be first considered a Star Wars display device and modifying the components so that it becomes instead a Gravity display device makes a new machine.
Again, the problem is the silly court rulings that are treated with so much deference. They should be called out for the result driven fraudulent nonsense they were and we should correct them with new, mature rulings and/or legislation.
Les,
You are off into the weeds again.
You cannot venture into the non-Useful Arts to make a legal argument in the Useful Arts.
Being wrong is no way to bolster your larger view against the Judiciary writing law. You simply do not have to go there.
Don’t.
I’m not in the weeds you are in a swap of dishonesty.
If you don’t like the blu-ray player analogy, then replace it with the player piano analogy or the loom analogy.
It is fair to say replacing the configuring component for the loom does not create a new machine.
It is also fair to say replacing the configuring component for the loom does create a new machine.
Les,
There is nothing at all dishonest by recognizing the legal distinction of the Useful Arts.
Piano suffers the same fate – as does an ornamental pattern on a loom.
You really need to recognize the legal terrain here.
Anon –
It is dishonest. Those analogies, (an we noticed you did not address the loom) do not raise a useful arts issue. The removable/replaceable medium can fairly be viewed as instructions for a machine. In the case of the piano, they say move lever A to position x for a 1/16 of a second, 2/8 of a second later move lever R to position y for 1/2 second etc.
With the Blu-ray, the instructions are similar, but refer to controlling light sources and audio signal levels.
They are fairly viewed as instructions for the machine.
Les,
Doubling down on your posts in error only makes you twice as wrong.
Les,
You continue to be flat out wrong – both in the fact that the analogies do cross the line between Useful Arts and non-Useful Arts, and in your lack of appreciation of the legal significance of this line-crossing.
You continue to cry “dishonest” when your lack of appreciation paints you as plainly ignorant. Your attempts at reaching a non-law context are doomed to failure. You really do need to understand the context – the terrain – in which you operate. It is not dishonest to honestly note that you seem clueless in this regard.
Your childish name calling and ignorant assertions do not make you right.
You shouldn’t be intellectually dishonest just because the courts have set up an untenable house of cards.
The courts are wrong. Don’t make matters worse with legal posturing to warp reality to fit through the door of that house of cards.
Its time to say, the judicial exceptions result in the clearly ridiculous result of classifying processes implemented through software and/or computers to be unpatentable, for no good reason. Your rulings are absurd and must be undone.
DVDs, CDs, Blu-Ray disks, Xbox game discs are all fairly construed to contain instructions for a machine.
They are also fairly construed as machine components that change the machine, improve the machine or create a new machine…. This is simply a matter of point of view. There is no right or wrong here.
Enough with both sides asserting legal fictions. Nothing will ever get solved that way.
“Your childish name calling and ignorant assertions do not make you right.”
Right back at you Les – especially the ‘dishonest’ comment given your lack of legal appreciation.
Once again, there is no intellectual dishonesty in noting that you are operating in the legal world.
If it helps you at all, you may want to consider refining your understanding of “math” and realize that according to your view some math is patent eligible, while some other math is not. It might help you to think in your vocabulary that basic math is not patent eligible, but that applied math is. In this way, you can be “honest” and treat things like engineering differently than things like the whole numbers.
Does that help you?
As to your continued desire to not recognize the difference between Useful Arts and non-Useful Arts, sorry Les, but there very much is a Right and Wrong on that difference. That is simply based on the Constitution. There is no “childish name calling and ignorant assertions” coming from me pointing out this basic fact of law to you. You continue to ignore this basic fact of law at your peril. As I have correctly and objectively stated: you are trying to ignore the legal context in which you are operating.
Providing instructions for a machine falls under the useful arts.
As I said:
“DVDs, CDs, Blu-Ray disks, Xbox game discs are all fairly construed to contain instructions for a machine.
They are also fairly construed as machine components that change the machine, improve the machine or create a new machine…. This is simply a matter of point of view. There is no right or wrong here.
Enough with both sides asserting legal fictions. Nothing will ever get solved that way.”
With which part of that, if any, are you foolish enough to disagree?
“Providing instructions for a machine falls under the useful arts.”
Clearly, that is not always true.
Beethoven provided instructions that can be now be provided for a machine. His music played on a machine does not fall under the Useful Arts.
Put.
The.
Shovel.
Down.
Les, a computer with new microinstructions, or new firmware is an improved computer.
But simply putting a program into a computer’s program memory does not create a new machine. Program memory is reprogrammable, erasable, non permanent, volatile, evanescent. Programs exist there only while they are executed. They do not change the computer hardware. Programming a computer is the way one USES a computer.
Read Benson if you need more on this point. This is what the Supreme Court said there, and this is part of its holding.
From the real point of view, to the legal point of view, programming a computer does not create a new machine. Just jumping up and down and saying so until some parent slaps your face and urges you to stop acting like a spoiled brat should not be required of mature adults, let alone lawyers.
The issue of programmed computers being eligible was addressed in Benson. Just read Rich’s opinion below to see what was reversed. Benson is the law, not Bernhart.
Moreover, the 101 case prior to Bilski that does not stand reversed is Alappat. The statement in Alappat that a programmed computer is a new machine is dicta.
“ Program memory is reprogrammable, erasable, non permanent, volatile, evanescent. Programs exist there only while they are executed. They do not change the computer hardware. Programming a computer is the way one USES a computer.”
Wrong on may levels Ned.
– while program memory may be reprogrammable – that has nothing at all to do with having a new machine.
– you have consistently run away when I have asked you to provide the proper legal citations for your extra-statutory additions when you attempt to distinguish (which you cannot in any legally meaningful manner) between software and firmware.
– your re-defining of “use” to include changing a machine is not only not accepted, it is bogus and violates Morse. You cannot define something to include all future changes and improvements.
If you had not made such a habit of running away from the points that I present to you, you would have come to this realization long, long , long ago.
“- your re-defining of “use” to include changing a machine is not only not accepted, it is bogus and violates Morse. You cannot define something to include all future changes and improvements.”
Right because you have to “redefine” “use” before a person can say “I use the baseball bat to crack anon over his dumbas head so hard that it shatters to shut him up” (product) or “I use the computer to send my grandma a birthday present” (machine) or “I use the accordian to play a song or kill anon’s pet hamster” (machine) or “I use x to do y” (where y is any function that changes x). Right? Right? Gotta redefine the word in order to use it in such a situation.
Gee 6, why the violent flare-up?
Silly 6, there is an easier – a much easier reason.
When you use it the way you that do, you do this little thing called inventing.
I hear they hand out patents for that type of thing. You know, inventing. Creating something that that poor little ‘oldbox’ could not do before you changed it.
Change – what a concept.
Ned
The ruling in GOTTSCHALK v. BENSON was ridiculous.
A method for converting from binary coded decimal to binary is not a method because a patented claim to such a method would block anyone from using the method.
First -OMG! ANY claim blocks anyone from using the claimed method.
Second – That isn’t how one determines if something is a method or not!
Third – Even if who gets blocked from what were relevant, which it is not, it didn’t block anyone from converting BCD to binary. It only blocked anyone from using the claimed method. Everyone would have still been free to use the prior art methods.
So…. please don’t cite the nonsense in Benson to me.
Les, Flook clarified that Benson was about math, and it was excluded because it was, like a law of nature, a scientific truth and therefor not really new under 101 though recently discovered. See, footnote 15 of Flook.
Your post reflects the confusing nature of Benson itself. But Flook did clarify it.
Ned, as did Diehr further constrain both Benson and Flook – see Bilski.
I also note that your continued reliance on a footnote indicates that you still have not accounted for the other material from that decision that I have provided to you.
Still waiting for you to stop running away…
Ned –
The ruling in Flook is equally absurd. Especially when reviewed in the same sitting as Diehr. In Flook the wires were connected to an alarm. In Diehr, the wires were connected to an oven door actuator. In Diehr, the claims were deemed to be a process, in Flook the claims were not deemed to be a process.
If you took the wires off the door actuator and instead powered an alarm at the point you would have otherwise opened the door, then the claims do not recite a process?
NONSENSE!
By the way, were any of the FFT claims I posted acceptable for your purpose?
Yes it does, just like any DVD or CD in the argument in my earlier post.
A CD can be viewed as a set of instruction for a machine to control a circuit to provide particular voltages to a particular point at respective particular points in time relative to a point in time the process is started.
Les, all that was claimed in Flook was updating an alarm limit. That was a number, as was noted by the Court.
The difference between Flook and Diehr is that Diehr actually used the updated number to do something physical.
Ned, you did not give an answer as to whether you are willing to kiss your ‘Point Of Novelty’ goodbye.
(you are doing that running away thing again)
…and should I point out that your own PON view and Diehr do not survive your own view of Prometheus which itself stated that Diehr was most on point and further stated that it (Prometheus) was not changing any of the precedents?
hmm, why is it that you have never answered my question to you about the PON of Diehr? Could it be (gasp) like most all the other run-aways, that you would be faced with admitting that anon is right?
LOL – the silence screams volumes.
Ned –
If the alarm limit was updated, that means an alarm was sounded when the alarm limit was met. Hence something was done with it…as if that should matter..
In Diehr a number was updated and when that the associated parameter value was reached the oven door was opened.
If opening the door or sounding the alarm are not examples of insignificant post solution activity, I don’t know what is.
By the way, in both cases, the updated values were values that were transformed from incorrect values to correct values. The values were things. “Things” are encompassed by the word “article”. Accordingly, both Flook and Diehr transform an article and meet the transformation leg of the machine or transformation test (as if that were a legitimate requirement or even clue).
Les, you have a point about the alarm, but the end use in Flook was so general as to be not a claim on a specific use, but a claim on the algorithm.
Diehr was a claim to a specific process. Perhaps that is the most important difference.
“the end use in Flook was so general as to be not a claim on a specific use”
You appear to be injecting a 112 breadth/enablement concern back into a 101 discussion, Ned.
If I claim a hammer, perfectly structurally claimed, is matters not what ‘use’ that hammer is put to, does it? You do not seem to have a problem there with any type of “so general,” as ANY general use – no matter how unforeseen – matters not to the claim.
It is more than apparent that what is really going on is just more of an age-gone-past bias against any inkling of a method claim. Method claims are on equal footing with the hard-goods claims. Method claims are not limited as being a subset of getting to a hard goods item. That, my dear Ned, is the take away from the fact that MoT is only a clue and not a legal requirement.
anon,
1. Do you have a better explanation as to why Flook lost and Diehr won on 101?
2. The SC defined process in Corning v. Burden and in Cochrane v. Deener. Why are these definitions not binding the Supreme Court?
Dicta?
“1. Do you have a better explanation as to why Flook lost and Diehr won on 101?”
Yes – the anti-position as carried by Douglas/Stevens lost. The Court was beginning to see just how ridiculous its thoughts were.
Sort of like Breyer squirming for a way out in the Alice oral arguments…
2. – the definition of process binding to the Court is NOT what the Court stated in those cases but what Congress wrote.
Again – you seem to lack the incredibly important understanding that the constitution of the United States did not give patent law writing power to the judiciary.
Come back to this reality, please.
Yes Martin, you can get a patent for a process. Which, I suppose, can be considered to be a set of instructions for doing something. For example, you can get a patent for a method for making a new drug, or even a new way of making an old drug.
Likewise, you can get a patent for a new way to calculate an FFT, or a new way to convert spoken words into text.
The process still has to have some non-abstract element to complete- the MoT “clue” or some tangible change in the world. It’s not infringing to sell written descriptions of the process- you have to actually make something and sell it using the process to infringe.
Am I missing something there?
Martin, I don’t know if you are missing something or not.
However, you are correct, to infringe a method claim, you have to perform the claimed method.
What Marty is missing is that MoT is only a clue. Per Bilski, MoT is not required.
Les, new way of calculating a FFT?
Please give us an example claim. The notion that math is eligible subject matter was put to rest a very long time ago, Les. If you say this, though, I suspect the PTO is actually issuing such patents in violation of the Supreme Court. I wonder just how they can get away with that?
Anyway, give us an example.
Ned,
Do you consider cryptography to be math?
Cryptography USEs math.
Does not answer my question, Ned.
…especially given the CRP that you just posted about “USEing” an ‘oldbox.’
From US 8510362 B2
10. A variable fast Fourier transform method using an apparatus for performing fast Fourier transform (FFT) on n-point input data (n is a specific number) or 2n-point input data, comprising:
determining whether the n-point input data or the 2n-point input data is received;
when determined that the n-point input data is received, performing the fast Fourier transform using a twiddle factor for the n-point input data to generate a first output; and
when determined that the 2n-point input data is received, performing the fast Fourier transform using a twiddle factor for the 2n-point input data to generate a second output.
link to google.com
See also the 1,550,000 hits from a Google/patents search using the search terms : method fast fourier transform
link to google.com
I see now that that claim mentioned an apparatus. In case you think that doesn’t count, here’s one without a machine:
US 6938064 B1
1. A method of calculating a fast Fourier transform or an inverse fast Fourier transform of a digital signal defined by a series of N real starting samples x(n), with N a power of two and n ε [0 . . . N−1], the method comprising the steps of:
transforming input samples into output samples in a first transformation step;
transforming input samples into output samples in at least one successive transformation step to the first transformation step; and
storing the input samples and output samples of each transformation step in a storage memory;
wherein each of the transformation steps is performed by means of a single set of butterfly circuits with several inputs and several outputs, the operating mode of the set of butterfly circuits modified selectively in each transformation step, a series of N output samples y(n) representative of the fast Fourier transform or the inverse fast Fourier transform of the output samples x(n) being provided in a last transformation step;
wherein output samples y(n) are real;
wherein output samples of a butterfly circuit replace the corresponding input samples of the same rank in the storage memory, so that, if the starting samples x(n) processed in the first transformation step are classified in bit-reversed order of their index n, output samples y(n) are provided in the last transformation step in ascending order of index n and are defined by the following relations:
y(0)=Re[X(0)],
y(n)=Re[X((n+1)/2] for n being odd and different from N−1,
y(n)=Im[X(n/2)] for n being even and different from 0, and
y(N−1)=Re[X (N/2)]; and
wherein samples X (n), with n ε [0 . . . N−1], designate complex samples of the series corresponding to the fast or inverse fast Fourier transform of the starting samples series x(n).
link to google.com
Oooops, that one mentioned a memory…
Here is one that is hardware free, although a register value is mentioned:
US 7962719 B2
10. A method of generating updated Fast Fourier Transform (FFT) coefficients with a butterfly, the method comprising the steps of:
(a) reading a twiddle factor;
(b) reading a first A coefficient and a first B coefficient for a current stage, wherein the twiddle factor, the first A coefficient, and the first B coefficient are complex-valued;
(c) updating a product register value including the step of multiplying the first B coefficient with the twiddle factor;
(d) deriving a first pair of updated FFT coefficients for a subsequent stage with add/subtract operations based on the first A coefficient, first B coefficient, and the product register value; and
(e) repeating steps (a) through (d) for one or more subsequent A coefficients and one or more subsequent B coefficients corresponding to the twiddle factor to provide one or more subsequent updated FFT coefficients, wherein the method repeats the steps in a manner so as to provide each pair of FFT coefficients in one clock cycle.
link to google.com