Guest post by Prof. Lucas Osborn, Campbell University School of Law.
In the Matter of Certain Digital Models
(ITC 2014)
The ITC’s recent decision demonstrates the increasing importance of digital patent infringement – infringement based not on tangible products, but rather on computer files. It also indicates the coming importance of three-dimensional printing (“3D printing”) technology to intellectual property law.
The case involved patents covering methods of making Align Technology, Inc.’s (“Align”) Invisalign® products. Align’s products avoid the need for metal braces by using a series of plastic teeth aligners (essentially molds worn over the user’s teeth) that slowly guide the user’s teeth to the proper alignment. Scans of the user’s teeth are converted into digital files, which are used to design a series of digital models of the teeth aligners, each one successively moving the teeth closer to the proper alignment. The patents largely cover methods of making the aligners by generating the digital data sets for the aligners and then making (usually by 3D printing) the actual aligners. Some claims do not require the step of making the physical aligners, and would thus be infringed by merely creating the digital data sets.
Align alleged that ClearConnect Operating, LLC’s (ClearConnect) products and methods violate Section 337 and constitute patent infringement. ClearConnect created the initial teeth scans in the U.S., sent those files to Pakistan where the intermediate digital data sets were computer-generated, accepted digital transmission from Pakistan of the complete data sets into the U.S., and finally 3D printed the physical aligners in the U.S.
The parties vigorously argued whether the electronic transmission of digital data sets constituted “importation of . . . articles” within the meaning of 19 U.S.C. § 1337, and the Commission received written submissions from Google and the Motion Picture Association of America, among others, on the topic. In the end (after 30+ pages of discussion), the Commission found (over a dissenting commissioner) that the digital data sets were “articles.” The Digital Models opinion concluded this issue, stating,
In sum, our task is to determine whether the phrase “importation of . . . articles” encompasses this modern form of international commerce, or should be understood as limited to the kinds of international transactions in existence when the statute was first enacted. Having carefully reviewed the plain language of the statute, its legislative history and purpose, pertinent case law, and the arguments of the parties and public commenters, we conclude that the statutory phrase “importation . . . of articles” should be construed to include electronic transmission of digital data because the digital data sets at issue in this investigation are true articles of international commerce that are imported into the United States and their inclusion within the purview of section 337 would effectuate the central purpose of the statute.
Digital Models, p. 55.
The Digital Models decision is interesting in its own right, but it also raises some interesting questions for the future of 3D printing technology and patent law. 3D printing is rapidly progressing into a consumer technology – soon the alleged infringers of Align’s patents won’t be companies, but individuals who will generate their own digital data sets on home computers and print the aligners with their desktop 3D printers.
Two of the many issues raised by 3D printing technology are (1) how should patent law treat claims directed to digital representations of physical objects, and (2) how should patent law treat claims directed only to physical articles where the alleged infringement involves only or primarily digital renderings of the physical articles. Align’s patents fall under the first question, because they positively recite the digital data files (essentially 3D CAD files) in the claimed steps. Claims directed to digital representations are very similar to traditional software application claims; they may face patentable subject matter challenges under 35 U.S.C. § 101 and questions about when and whether they are “components,” “materials,” or “products” under the various subsections of § 271. Companies looking to protect their physical products should increasingly think about protecting digital versions of them as well.
The second issue raised by 3D printing may be the most interesting. Traditionally, companies have not sought to protect digital representations of physical products; their patent claims were simply directed to the physical objects. Much as music and movie industries had to battle digital copyright infringement, patent owners may be on the cusp of their own digital patent war. People can create, modify, and transmit 3D CAD files just as easily as they can .mp3 files. Coupled with the Internet, 3D printing technology decentralizes and largely anonymizes the manufacture of tangible objects. If the physical object is only a click away from being produced by a person’s 3D printer, should a court hold that the digital file infringes a patent claim to the physical object, either directly or under the doctrine of equivalents? If not, will claims of indirect infringement be an effective tool against the individuals and websites that host and transmit the CAD files? These questions will be of increasing importance in an era of ubiquitous 3D printing technology.
Lucas Osborn is an Associate Professor of Law and Campbell University School of Law in Raleigh, NC. He has explored 3D printing technology’s effects on the law here and here, and continues to explore these issues in his research, including a project with Tim Holbrook of Emory University School of Law.
Probably your question of what about other things with 3D printing is one that I raised years ago on this blog.
I think the question goes to the heart of some of the misrepresentations spread by the antis. Consider not just the 3D printer, but machines that make molecules or automated factories or robots that can do anything a person can if trained to do so.
So, the hardware to get something done may be commonplace. The trick is to have the software to get the robot or automated machine to build the item.
So, I think with computers that are really transforming information, it just turns out that they are already in this automated state. But, we are going to see other fields move into this state more and more as robots become more advanced and automation continues.
I think the proper way to think about this is as a component. If the automation machine can’t do something without the electronic file, then the electronic file is a component of the machine performing the automation. There really isn’t another fair way to think about this that I have read.
Trade secret law probably helps inform us of this. After all people are being prevented from using what is essentially an electronic file in their heads.
Of course for the ludicrous views of the anti’s just read MM’s post below.
And notice how ludicrous MM’s view are. He is saying you can’t protect information with patents ignoring, of course, that one of the biggest benefits of patents is the disclosure of how to do something. These electronic files are not just information but information transformed in such a way as to be used by an automation machine.
It is true that once machines get smart enough that the patent disclosure is sufficient for the machine to copy product, then we can’t protect the information. But, when the information is being used as a component of a machine, then we should be able to protect the electronic files that contain the transformed information.
Night, you declared it Malcolm’s views are ludicrous because he states that the patent laws are not intended to protect information. If you were to seriously advocate your position to the man on the street, that the patent laws can be used to protect information such that the communication of information from one person to another person, and that is all, can make them an infringer regardless of the First Amendment, they would look at you as somebody who is a complete m0r0n.
“seriously advocate your position to the man on the street”
Ned,
You assume too much with a statement like that. I think that you might want to consider that NWPA writes for an audience that has some rudimentary knowledge of patent law, what it is, what it is for, and some basic working familiarity with certain terms of the art.
A message to obtain the same effect, geared to “the man on the street” would necessarily be different in tone and content.
I think the “complete m0r0n” comment to be rather needless to the discussion on this blog, as it reflects an inaccurate portrayal.
“You assume too much with a statement like that.”
Idk brosef, the patent system as a whole depends on the man on the street finding it acceptable enough to not tell their rep to dismantle that shizzle. The moment any part of patents becomes much at all of a liability to congress critters they’ll dump it like yesterday’s garbage.
“idk”
Yes, but not for the reasons that you may think.
Pay attention.
NWPA,
“I think the question goes to the heart of some of the misrepresentations spread by the antis.”
Your post reverberates along themes often repeated in the CRP-Run-away from valid counterpoints-CRP again merry-go-round cycle we see on this blog.
“Consider not just the 3D printer, but machines that make molecules”
Reflects the “big box of electrons, protons, and neutrons” analogy – tied to the Star Trek replicator and just what would be obvious per se discussions.
“I think the proper way to think about this is as a component”
Reflects the fact that software is a man made manufacture, built (even if only built of words), and expressed outside of the mind (as reflected in the aspect of earning copyright protection), for a utilitarian purpose that accords with the Useful Arts. Also to be reflected in the separate fact that software is equivalent to firmware and is equivalent to hardware.
People may seek to deny these facts, may seek to obfuscate with pedantic arguments that these facts are only the opinions of those who state these facts, but at the end of the day, the facts remain facts, and the lack of an intellectually honest response/acknowledgement/incorporation into the legal discussion shines a stunningly bright light on the duplicity of the anti’s.
Anon,
It shouldn’t take you long to shoot this one down, I would thing.
Does a hand-held calculator become a new machine when someone enters a calculation on it?
Regards,
Dobu
Opinions are not [necessarily] facts.
“enters a calculation”
Somehow I think that you think that such is a program, or ‘software,’…
(you should recognize your own frailties in this line of thought)
I was curious if you were going to address programmable calculators in your reply.
You didn’t (not a criticism, by the way), so let’s address that now. Does entering a calculation on a programmable hand-held calculator create a new machine?
You do realize the context of the term “program” in “programmable calculators” is not the same as in patent law, right?
You do realize that a general purpose computer and a programmable calculator are the same thing, right?
Well, I was not expecting the blog itself to shoot down my discussion. =)
Your comment is awaiting moderation.
Nothing profane or insulting, so maybe I’ve hit some kind of count limit for new contributors? We’ll see if this post makes it through.
“I was not expecting”
There are a lot of things that you seem not to be expecting….
Clearly, that is a “you” problem.
Dobu, you have to realize that anon and everybody else in his camp has refused, ever, to tell us what the difference is between using an old computer and programming an old computer. They simply say that it is the law that when one programs a computer he creates a new computer.
They substitute mantra for argument.
“refused, ever, to tell us what the difference is between using an old computer and programming an old computer.”
Ned – this is completely dishonest of you. I HAVE told you that not all using can absolve you of actually inventing. I have shown you (repeatedly) why this is so, deconstructing the House/Morse fallacy and pointing out to you that it is you that somehow wants to have ‘oldbox’ magically have all future improvements to the machine somehow “in there.”
It is you that has refused to try to get over your self-induced inability to understand law.
Tell me, why are you still struggling to understand the Nazomi case? This is most odd that you persist in your personal lack of understanding of that case.
Why Ned?
Why?
Once you understand that case – once you LET YOURSELF understand that case, then you can see why you are just dead wrong on this issue.
But we both know why you absolutely refuse to go there, don’t we? We both know that your third-party interests are interfering with the conversation’s natural and logical endpoint on this issue.
Dobu, this is going to be interesting. Anon denies that he has never explained the difference between using an old computer and programming an old computer to produce a new computer. He spends page after page after page after page in denying that is never made this explanation. But never once, can he ever simply explain the difference.
He refers to some kind of house demonstration as if that explain everything. But it doesn’t. I think he understand that it doesn’t, but refuses to admit it.
He explains that there is there are two computers, one programmed and one not programmed. Both are connected in a way that they do something. Let us say they are connected to play drums. The programmed computer plays the drums. The other computer just sits there.
Then one again asks, what is the difference between using an old computer and programming an old computer because the house example seems demonstrate the use of an old computer to play drums. But anon insists that it does not show that. And the question is, “Why?” Just how does one use an old computer if not by programming it?
As we all know, under the law as defined in the statutes, particular §100, the use of an old machine defines a process. It does not define a new machine. So one cannot demonstrate that there is a new computer simply by showing that the computer is doing something different, because that is the same thing as using an old computer to do something new.
Anon, and his cohorts, have never discussed this issue in any detail except to insist that they are right and we are wrong.
“But never once, can he ever simply explain the difference.”
Asked for and answered Ned.
First in the Grand Hall experiment.
Then in real case law in the Nazomi case.
It is you that refuses to understand. I cannot make you understand something that you personally refuse to understand.
The House/Morse fallacy has been explored on countless occasions – never once during those discussions have you engaged and been willing to take the conversation to its logical conclusions.
“Both are connected in a way that they…”
This is an odd bastardization of what has been presented in much more simpler (and powerful terms). Try to be intellectually honest and not kick up so much dust.
“play drums”
PLEASE for the love of GOD leave out the canard of non-useful art analogies. Those are simply not the stuff of patent law and do not – because they cannot – show what you think they show. To attempt to use such after this has been explained to you time and again is simply scandalous and utterly dishonest. There is no real to do so, as you can just as well craft a hypo that is within the Useful Arts and not try to obfuscate.
“the use of an old machine defines a process. It does not define a new machine.”
(sigh) as has been explained innumerable times, you cannot use the old machine for the effect of the new software if you have not FIRST re-configured that old machine by FIRST adding to the old machine the new manufacture in its own right of the component of software. That is the heart of the lesson from the Grand Hall experiment and the Nazomi case that you refuse to let yourself personally understand. You continue to engage in deception by refusing to understand what that case means and wanting to act as if that case never happened. If not overtly deceptive, it surely is delusional.
If ‘oldbox’ – without change – cannot do something, then using ‘oldbox’ and having that very use involve change an such change results in ‘oldbox’ NOW having a new capability, that necessarily means that your use involved patent eligible invention (if the aspect of such use is geared to the Useful Arts).
For you to continue to pretend that I have not addressed your concerns is beyond absurd.
anon, programming an old computer does nothing to the old computer. Nothing is reconfigured. The hardware remains the same. This is where your sophistry breaks down. You claim that the hardware has been changed a using the term “reconfigured.” But an actual point of fact, the hardware remains the same.
Ned,
I’m pretty familiar with Anon’s scripted outbursts: “Grand Hall” (both computers have the same capability: processing data), “House Fallacy” (even TV script writers can see that software doesn’t create a new computer), “Morse Fallacy” (invalid comparison, electromagnetism known before “invention”, over-reached, real-world objects vs. abstract data, etc.), “box of protons [et al]” (imaginary device would just be manufacturing method, real-world effects don’t compare to abstract data).
He trots these out all the time. Nothing new there.
Anon,
How do distinguish programmable handheld calculators from general purpose computers, with respect to the notion that the programming of such creates a new machine?
Thanks in advance for your courteous response. 🙂
Dagnabbit, fell into the moderation pit again. Let’s see if I figured out what triggered it . . .
Anon,
How do distinguish programmable handheld calculators from g[redacted] p[redacted] computers, with respect to the notion that the programming of such creates a new machine?
Thanks in advance for your courteous response.
“anon, programming an old computer does nothing to the old computer”
Wrong in fact.
Wrong in law.
Dobu at 14.2.1.1.1.11:
Asked and answered already.
You are trying too hard to be too clever by half.
Further, the items I “trot” out are repeatedly trotted out because the anti-software folks have yet to be able to provide any type of substantive response.
You have admitted to not being an attorney, so your lack of understanding of the Nazomi case may** be a bit more understandable – and how that understanding parallels precisely the Grand Hall experiment takeaway.
But Ned does not have that luxury.
** – I say may, but if you persist in wanting to discuss the legal nature of this topic on this forum, you too incur a responsibility for doing so in an informed manner, and you too should come to understand what the Nazomi case (as well as the In re Alappat case) mean.
Anon,
“Asked and answered already.”
I’m not finding your answer, unless this is the one to which you are referring, at 14.2.1.1.1.1:
“You do realize the context of the term “program” in “programmable calculators” is not the same as in patent law, right?”
If that is the “answered already” answer, then I would further ask how the program in a programmable calculator differs from the meaning represented by “program” in patent law.
Regarding Nazomi:
Okay, I managed to find the Patently O article on Nazomi v. Nokia (guessing that this is the case to which you keep directing the “anti’s”), and read the opinion. I am disappointed that the comments on that article are no longer available — that would have been interesting reading, I think. I’m sure there was passionate debate on the topic.
We apparently have a specific set of ARM processor cores that will leave portions of the hardware dormant unless the system software was compiled with the inclusion of vendor-supplied (for a fee) source code that enables that dormant hardware.
The Federal Circuit made some mistakes in their affirmation (e.g., finding that the Nazomi claims could not be done in hardware alone), but I think they got to the right conclusion: the devices as delivered did not infringe because they could not perform the claims of the patents without modification of the devices (paraphrased).
Anon, I see why you like this case so much. It is an example of actually improving how the computer operates by changing the software being executed by the processor.
Of course, it’s a fringe example where the processor contains hardware that is otherwise disabled, and you would have to replace the system software with a hardware-enabled version, and enablement software isn’t even mentioned in the patent claims, but, still — we do have a very specific “newbox” that is a functional improvement over a very specific “oldbox”. Congratulations. 🙂
However, you keep bringing up the Nazomi case when the discussion is about data processing patents, which the Nazomi patents were not. I do not recall seeing anyone argue that replacing system-level software (e.g., BIOS, firmware, possibly device drivers) could not result in a bona fide improvement to the computer.
With regard to data processing patents, the non-specific computer executes code just as it did before the data processing software was installed. That makes Nazomi‘s hardware-enabling operating system swap inapposite to the argument regarding whether adding data-processing software to a “known” computer is “improving” the computer.
I’ll tackle in re Alappat another day.
Dobu, thanks for your post at 14.2.1.1.1.14. It explains Nazomi, something that I have asked anon to do for a very long time. He has this condition, you see, that makes him allergic to the facts of a case. Thus, when asked, he not only does not know the facts, but refuses to consider the facts even relevant to the discussion.
Now that you have explained Nazomi, the device being sold by the defendant actually was entirely hardware. I didn’t know that before.
“If… then I would further ask”
Your further asking is asking the same thing while still ignoring the point I make about context. You are stuck in your belief system, and do not recognize the answer staring you in the face.
“Regarding Nazomi:… and read the opinion… there was passionate debate on the topic.”
(sigh) Reading and understanding are not he same thing. Do you appreciate the legal significance of what you read? Are you still not understanding that part of the equation? It is one thing to be able to understand the technical world, it is another to (as you do) think you understand the technical world (but not fully, as you never did answer my question to you regarding your seeking to artificially constrain “the arts to which the invention pertains” ONLY to pure software, and thus fail to recognize the fact that software is equivalent to firmware and is equivalent to hardware), and it is a quantum step to understanding both the technical and legal aspects of the situation.
As to “passionate debate,” well, that is fine for only how far that debate is fueled by understanding. When you have less understanding and more passion, you tend less to meaningful debate and more to vapid rhetoric. No shortage of the vapid rhetoric from the anti-software patent group. Plenty of shortage 😉 of understanding from that same group.
“ source code that enables that dormant hardware”
“right conclusion: the devices as delivered did not infringe because”
The key is NOT that the devices as delivered did not infringe, but rather, the distinction between what was delivered that did not infringe and what would infringe. Ask yourself, what is the difference that would create a new machine that would infringe (hint: it is the same thing that Ned runs away from when I try to pin him down on what was the “Point of Novelty” – as that term is properly understood in its patent law context – in the Diehr case).
“ an example of actually improving how the computer operates”
Actually, that is not why I like the case so much. It is a non sequitur that improving how the computer operates is the effect, as patent law simply is not limited to that effect when it comes to utility. Had you appraised yourself appropriately on the concept of the exceptions to the judicial doctrine of printed matter and understood the ‘magic hatband’ case, you would understand that patent law and utility is not so limited. That you glom onto this view is just evidence of the koolaid stain around your lips.
“Of course, it’s a fringe example”
Of course, it is not. Again, you misunderstand the context and seek to dismiss what you want to label as fringe.
“ when the discussion is about data processing patents”
WRONG. Your view of “data” is a fallacy. You fail at recognizing what constitutes invention by clinging to that fallacy. I have always held that inherency is in play. If ‘oldbox’ – without change – inherently has the capability of what is claimed, then so be it, and the invention fails under 102/103. That is distinctly NOT the issue under discussion. That you continue to not recognize this is most telling.
“ executes code just as it did before”
You do not seem to recognize that the code being executed is not being executed with a wave of a magic wand, but is being accomplished through the man-made purposeful creation of a machine component and manufacture in its own right called software. Without that change, without that addition to the machine called ‘oldbox,’ ‘oldbox’ cannot do as claimed – inherency just is not there. The House/Morse fallacy has been debunked. Whether you wish to open your eyes and accept that plain truth, well, I can only lead you to water; I cannot make you drink.
“I’ll tackle in re Alappat another day.”
I look forward to your continued education and enlightenment.
Ned, you engage in petty mischaracterization again with “ He has this condition, you see, that makes him allergic to the facts of a case”
The case is and has always been there. It has always been you that dodges the case by claiming that you just cannot seem to understand what the case is legally saying.
This has always been your personal problem – one you have consistently dodged resolving.
You are still lacking appreciation of the case. Review my answer at 14.2.1.1.1.16 to see why the case is important – ask yourself what is the difference between the non-infringing item and the “Point of Novelty” of a new machine that would be infringing.
Hint: you may have to stop running away from your seeming abandonment of the “Point of Novelty” in Diehr (talk about not wanting to discuss a case…)
anon, it seems to me that the defendant in Nazomi was selling hardware that had a feature that was not enabled, but could be enabled by special software running in the OS.
This is where I am again a little bit fuzzy and the facts and perhaps you can help me. Who was responsible for providing the special software that enabled the disabled feature? Was it the defendant/hardware seller, or was it the customer?
Ned,
Let me take this opportunity to also remind you of where <b.the facts are in the Alice case.
Perry has already stipulated that a new machine has been created with the software.
Remind me again, who was it that pointed this out to you?
(as to helping you with Nazomi, I cannot force you to understand – you must be willing to go where you have shown no desire to go – this is, and must be, all on you)
“Who was responsible”
Wrong question.
First, you need to understand what. As in, what is the distinction between what did not infringe and what would infringe.
(again, your running away from your own notion of PON is critical here)
Yes, anon, an incredible admission that allows the Supreme Court a simple way out if it wants not to decided whether the system claims are eligible while declaring the method claims ineligible — essentially following the lead of the Moore/Rader opinion.
Split the baby.
Anon –
“Your further asking is asking the same thing while still ignoring the point I make about context.”
No, I get that you’re saying that context changes meaning. I am asking how those meanings differ (real-world “programs” vs. patent law “programs”).
Regarding Nazomi:
“Do you appreciate the legal significance of what you read? Are you still not understanding that part of the equation?”
Since you ask, my humble, not-a-lawyer opinion is that you are greatly overstating the significance of this fringe case about a couple of hardware patents.
“… you never did answer my question to you regarding your seeking to artificially constrain ‘the arts to which the invention pertains’ ONLY to pure software …”
This is completely false on it’s face, Anon. I have answered every question you asked me. Your self-chosen definition of “answer” does not comport with how the rest of the English-speaking world uses the word (i.e., your choice to exclude “blatantly wrong” replies as “answers” to your questions).
And, for your benefit here, so you won’t claim I’m “running away”: if the ONLY “change” the patent is claiming is that of changing the software on a non-specific computer, then it is obvious that it’s the patent that is doing the “artificial constraining” to “pure software”.
“… and thus fail to recognize the fact that software is equivalent to firmware and is equivalent to hardware ….”
I have seen you write that phrase rather frequently, but I don’t recall seeing it explained. Firmware can be a subset of software (if you’re discussing the contents of the firmware), but Nazomi demonstrates rather handily that software and hardware are not equivalent, don’t you think? The hardware JAVA cores process the JAVA bytecode software orders of magnitude faster than the conventional cores that have to do similuate the entire virtual machine in software.
“The key is NOT that the devices as delivered did not infringe, but rather, the distinction between what was delivered that did not infringe and what would infringe. Ask yourself, what is the difference that would create a new machine that would infringe.”
Enabling the hardware JAVA bytecode cores, via replacing the system software or changing the hardware design, could result in infringing devices. Is this what you’re hanging your hat on? An example where hardware or software can achieve the same result? I really hope this isn’t what makes you think software and hardware are “equivalent”.
“Of course, it is not [a fringe example]. Again, you misunderstand the context and seek to dismiss what you want to label as fringe.”
Shipped devices with disabled infringing hardware components that could have been enabled by the manufacturer choosing different software — not a fringe case? One would think there would have been earlier or more frequent lawsuits touching on it, then.
“Your view of “data” is a fallacy. You fail at recognizing what constitutes invention by clinging to that fallacy. I have always held that inherency is in play. If ‘oldbox’ – without change – inherently has the capability of what is claimed, then so be it, and the invention fails under 102/103. That is distinctly NOT the issue under discussion.”
Your error is where you’re drawing the line between what is or is not inherent, by not recognizing that any meaning assigned to the “configuration” (the provided or resulting data) is entirely abstract.
“You do not seem to recognize that the code being executed is not being executed with a wave of a magic wand, but is being accomplished through the man-made purposeful creation of a machine component and manufacture in its own right called software.”
I have personally developed computer software compilers. There is no magic. It’s data in, data out. “Software” describes the human-written source code, the machine-executable binary code, and frequently intermediate code between the two. Whatever substrate you store the software on might be a machine component, but the software itself is not.
“Without that change, without that addition to the machine called ‘oldbox,’ ‘oldbox’ cannot do as claimed – inherency just is not there.”
Let’s “configure” a meat grinder to produce ground LamE-O (lamb, emu, ostrich), by putting chunks of meat into the hopper. It could not produce LamE-O until we “configured” it, so it’s a new machine, right?
“The House/Morse fallacy has been debunked.”
Even the TV script writers for House could see how silly software patents are. Morse over-reached.
Ned,
“Who was responsible for providing the special software that enabled the disabled feature? Was it the defendant/hardware seller, or was it the customer?”
As I do not expect an answer to be forthcoming from the inimitable Anon, I think I might be able to offer some assistance.
ARM, Inc. designed the processors at issue, but they are not a manufacturer. They license their processor designs and software (including “JTEK”, a suite that enables use of the allegedly infringing hardware) to the hardware manufacturers.
The defendents built devices that use the ARM-designed processors, but did not include the software options that would allow activating the extra hardware features.
A determined customer who is gifted in hacking skills might find a way to activate that extra hardware, but the exercise would be non-trivial, unless someone is providing tools to short-cut that process.
The CAFC considered such hacking to be sufficiently difficult that they found it to be a “modification” to the devices, which is how the devices avoided being found to infringe.
“I HAVE told you that not all using can absolve you of actually inventing.”
Yes, we understand your mantra.
There you go again misunderstanding things and assuming that my “mantra” is also not reality.
You focus too much on the speaker and not enough on the content.
Ned: While the patent may not be on the information, it is on the process. Sending directions on how to perform the process to others, knowing of the patent, and urging them to infringe seems to me to be inducing infringement.
If nobody practices the patented process, there is no infringement and therefore nobody was induced. Are we going to make it illegal to merely intend to infringe a patent, now? I’m sure the patent teabaggers would love that.
I think the same can be said if there was a patented 3-D printer process, and I sent binaries to infringers knowing they would use the binaries in an infringement.
You can send me all the binary data that you want. You can’t use patents to protect data. Maybe instead of “binary data” you should say “really cool machine”? Oh wait — merely calling it a “really cool machine” doesn’t make it a “really cool machine”, does it? It’s still just binary data. It’s information. It’s ineligible subject matter. No patent. No infringement.
The better question still remains, whether sending the instructions or sending a binaries constitute contributory infringement?
I don’t see how that’s possible. The bottom line again is: you can’t protect information with patents. Any interpretation of any patent statute that turns a person into a patent infringer for communicating information (ineligible subject matter) is necessarily the wrong interpretation. It should go without saying but I’ll say it again: the doorway to madness is fully opened when a person legally using existing technology becomes liable for patent infringement merely because of the content of the information they’ve transmitted.
“make it illegal to merely intend to infringe a patent, now?”
Nice goal post moving.
But how about “offer to sell” – is that close enough for you Malcolm to what you may be alluding to?
Pretty sure that’s already made it into law. 😉
MM, I think you missed the point that a patentable process is conducted by an infringer. The inducer sends instructions on how to conduct the process an urges it to be done, knowing of the patent.
I am merely addressing your point that sending instructions cannot be infringement. I think it can.
Ditto sending binaries to an end user knowing he will use the binaries in the patented process. Akamai’s main brief at the Supreme Court has plenty of authority on this point, including a nice quote from Chief Justice Taft when he was still a judge.
You cannot avoid the fact that sending binaries can induce infringement of a process claim in some situations.
But, then, we have that case where inducement was not actionable at the ITC. It has to be contributory – and that must involve covered articles.
A signal is not an article. That seems plain.
[…] Professor Osborn notes over on Patently-O, we will be seeing many more 3D printing patent cases in the next few […]
Unless a new 3-D printing method claim recites an improvement to the printing technology — a change that would have to be described in structural, not functional, terms — it’s just an obvious application of existing technology to “print X with a 3D printer”.
“ would have to be described in structural, not functional, terms ”
lol – assume your own conclusions much?
…and be careful with that “obvious” thing as this very much comes close to the big box of electrons, protons and neutrons analogy…
TB: this very much comes close to the big box of electrons, protons and neutrons analogy…
Printing species X on a conventional 3D printer that exists for the purpose of printing stuff in 3D comes “very close” to what exactly?
Please tell everyone exactly what you’re thinking so we don’t have to guess, TB. It sorta sounds like you’re delusional and comparing a convetional 3D printer to a box of fundamental particles. Is that what you’re doing? Let everyone know.
Oh, everybody already knows Malcolm. It is only the deluded like you that pretend to not understand the analogy that seem to struggle.
How very Vinnie of you.
pretend to not understand the analogy
I’m not pretending. I honestly have no idea what on earth you’re talking about.
But if you think “everybody knows” perhaps someone will come along to help you translate your gibberish into English since you seem frightened or incapable of attempting to do so yourself.
Malcolm doing Vinnie…
(how stale)
MM,
Since Anon has once again resorted to condescension in lieu of providing a useful answer to your question, I think I might be able to offer some assistance.
Anon has frequently trotted out his box-o’-particles when attempting to counter those who assert that loading software into a computer does not create a new machine. The idea, as I understand it, is similar to this, paraphrased:
“If you say an invented computer already contains all future software inventions, then I say my imaginary box-o’-particles already contains all future (chemical/material/article/whatever) inventions. You can’t have one without the other, and mine is ridiculous on its face, so you must be (and therefore, factually, are) wrong.”
I think that’s pretty close to the idea.
I like to point out to him that comparing abstract meanings assigned to processed data with actual, concrete, “real-world” articles created by an imaginary device doesn’t make for a valid analogy, but he just responds with an unsupported “Does, too”, or words to that effect.
I hope you find this informative. (I do not hold out much hope that this will be in any way helpful to the discussion. =)
Regards,
Dobu
Opinions are not [necessarily] facts.
“Since Anon has once again resorted to condescension in lieu of providing a useful answer to your question”
Dobu,
Your one-way-ness is rather stultifying.
And you never did offer replies to the questions I asked of you…
(condescension of otherwise).
Let’s try this easy one: is there a difference between three resistors in series and three resistors in parallel?
Anon,
“And you never did offer replies to the questions I asked of you…”
Absolutely incorrect. I have responded to every question you have asked me. You didn’t like some of the answers (e.g., “Were you aware of Nozumba-or-something?” … “No, I am not aware of that case.”), but I did provide answers.
“Let’s try this easy one: is there a difference between three resistors in series and three resistors in parallel?”
Of course there are. Off the top of my head, the parallel network is going to have a lower DC conductance for the same set of three resistors, less chance of an open circuit failure of the network, a higher chance of a short-circuit failure of the network, will be dissipating more power for the same voltage applied across the network, and will allow more high-frequency noise or signal to pass through due to increased capacitive effects.
Okay, you’re right, that was easy. What did I win?
Dobu
Opinions are not [necessarily] facts.
Whoops, correcting myself: parallel network will have higher conductance, not lower.
Dobu
You win the right to be so pedantic that you stop your pedantic ways (again).
Congrats.
Anon –
Charges of pedantry from one who holds that making a computer flip the polarities of a few microscopic magnetic domains on its hard disk platter changes that computer into an entirely new machine?
The hypocrisy is nigh palpable.
I’ll humor you, and play your game with your rules. The individual components of a parallel network of resistors and of a serial network of resistors can be chosen such that the net direct-current resistance of the two networks are equivalent. (That’s the word you’re trying to maneuver onto the triple-word-score space, right?)
“Why do you think I offered the three resistors example, Dobu?”
My guess was that you were trying to demonstrate the doctrine of equivalence . . . that rearranging the resistors in a patented circuit would not successfully design around the circuit’s patent.
“CLEARLY – some ‘flips’ really do matter as to making a new machine.”
CLEARLY the machine is performing as designed when the magnetic domains are being stored.
“Or do you want to run back to your pedantic ‘it’s-only-your-opinion-that-such-are-facts’ schlock?”
My jaw is agape. You actually got the message. This statement actually demonstrates that you understood what I was attempting to communicate, instead of the fingers-in-your-ears-while-yelling-“IT’S A FACT!” dance you were performing during our prior discussion. I’m proud of you. (I will not even attempt to attain agreement with the message, but comprehension is still progress!)
“LOL – you are simply clueless of the terrain on which you seek to do battle (hint: read up on your Sun Tzu). Your statement of “can be chosen” is decidedly FALSE given the three resistors example. The fact that there is a difference – and a very real difference with the same components wrecks your position from a purely non-legal viewpoint.”
I point out the resistor networks are not the same, and I’m pedantic. I point out a way they can be considered the same (what I thought was an olive branch, of sorts), and I’m clueless. So, what exactly are you looking for, here?
“Your charges of pedantry and hypocrisy are denied as being fully without merit or substance.”
The defendent as the arbiter. Interesting courtroom. Seems to me court is still in session, though.
“Thanks for playing.”
Now, see, dismissive writings like that might be why less obstinate people than myself stop responding to your questions. It gives the impression that you wish to hear nothing further from the addressed contributors. That can’t be the case, now, could it?
;^)
Why don’t we get to see these “flips” or the resulting magnetic regions in the drawings if they’re so important anon?
“ in the drawings”
LOL – 6, your continued misunderstanding of what is required in drawings is ‘amusing.’
I suggest that you work on that lack of understanding as I care that you are looking too much the putz.
To my question of “Why do you think I offered the three resistors example, Dobu?” Dobu miffs badly with
“My guess was…that rearranging the resistors in a patented circuit would not successfully design around the circuit’s patent.”
Clearly an extremely bad guess. Do you lack any technical knowledge as well as your lack of legal knowledge?
“as designed”
No – you are falling to the House/Morse fallacy again. A computer designed to be changed is completely different than a computer having been changed – in the first is only possibility and not actuality (the Morse all future items) and the second is the application of actual invention. Sorry but that House/Morse fallacy has been repeatedly debunked.
“I’m proud of you. (I will not even attempt to attain agreement with the message, but comprehension is still progress!)”
(sigh) – you celebrate oddly – thinking that I did not understand even while you continue to lack understanding.
“I point out the resistor networks are not the same, and I’m pedantic.”
….um, no, that was me pointing that out….
“ a way they can be considered the same”
…and that is you being pedantic – you do not get to have them be both NOT the same and the same. You conflated the equivalence notion – a different point – with the changed circuit notion, and in the process you grasp neither point. Two different points. Try to keep up.
“and I’m clueless”
LOL – let me give you back your own quote:
“I’m proud of you. (I will not even attempt to attain agreement with the message, but comprehension is still progress!)”
“The defendent as the arbiter. Interesting courtroom. Seems to me court is still in session, though.”
There you go again confusing facts that I say with the notion that it is just an opinion because I am saying them.
“that might be why less obstinate people than myself stop responding to your questions.”
You confuse my sardonic dismissal of your vapid attempt with the complete absence of acknowledging my on –point observations of law and fact that are not given in the first instance.
Yes, I get it that others don’t like being defeated by logical arguments, but to attempt – as you are doing here – the notion that not liking being defeated by logical arguments should be confused with my sardonic dismissals is plain error.
impression that you wish to hear nothing further”
Nothing could be further from the truth – as I repeatedly ask for answers to very specific points that remain unanswered. Do not confuse the wrecking of feeble answers given with the lack of answers to other points.
Not only are you not paying attention and getting the technical and legal points wrong, your attempts to be pedantic are rather juvenile. We are quickly getting to (well past) that point for you to drop your pedantic attempts again.
“Clearly an extremely bad guess.”
Clearly. I tried offering both interpretations (they’re the same, they’re different) in two different attempts to coax you towards getting to your point.
“Do you lack any technical knowledge as well as your lack of legal knowledge?”
This question feels rhetorical, but if I answer it, I’m pedantic, and if I don’t, I’m running away. So, I’ll go with “Yes.”
“No – you are falling to the House/Morse fallacy again.”
House was right. Morse over-reached.
“A computer designed to be changed …”
And that’s where you’re going wrong. Operating the computer in the manner for which it was designed is not changing it. The entire time it is powered on, it is operating on data. Feeding it more or different data upon which to operate is no more “changing” it than loading a wheelbarrow with bricks “changes” the wheelbarrow.
“Sorry but that House/Morse fallacy has been repeatedly debunked.”
All hail the Horse-Mouse.
“… thinking that I did not understand …”
No, the challenge was getting you to admit you did understand.
“… you do not get to have them be both NOT the same and the same.”
In some ways they are the same, and in other ways they differ. I offered both the similarities and differences, in separate posts, to try to get you closer to making your point.
“… – as I repeatedly ask for answers to very specific points that remain unanswered.”
Not from me, you don’t. I’ve been giving you answers. You just don’t like them. (And not useless non-answers like “Everybody already knows that.”, or “Come back when you’ve done your homework.”)
“We are quickly getting to (well past) that point for you to drop your pedantic attempts again.”
What can I say. I’m very detail-oriented.
“Clearly. I tried offering both interpretations (they’re the same, they’re different) in two different attempts to coax you towards getting to your point.”
Clearly you continue to miss the fact that more than one point is being conflated – by you. You are not too detail oriented, are you?
“A computer designed to be changed …”
“And that’s where you’re going wrong.”
Except I am not. Guess what – using something to create something new that did not exist prior to use is called inventing – even if that use is with an ‘oldbox’ and the ‘oldbox’ was designed such that the ‘oldbox’ can be easily changed in the future.
“Operating the computer in the manner for which it was designed is not changing it. ”
Clearly wrong in that ‘oldbox’ does in fact change nonetheless.
You seem really stuck on this notion that all future changes are somehow “in there” in the ‘oldbox.’ Must be magical for you to deny reality.
“The entire time it is powered on, it is operating on data.”
On/off and use are use as you are attempting to muddle is one cluster fallacy on your end. Your ‘wheel barrow” analogy is a fail based on the well-recognized exceptions to the judicial doctrine of printed matter. It really does matter when the bricks have a functional relationship and you are doing more than just carrying bricks.
“No, the challenge was getting you to admit you did understand.”
Still funny given that it is apparent that you still do not understand.
“… you do not get to have them be both NOT the same and the same.”
“In some ways they are the same, and in other ways they differ.”
Not at all – conflating two different points and losing the meaning for each point is just not the same as understanding what each point means and recognizing the validity of both points.
“Not from me, you don’t. I’ve been giving you answers. You just don’t like them.”
Your ‘answers” have not been answers – conflation and obfuscation are not answers. Let me clarify: I am not looking for blatantly wrong answers. Does that help your overly pedantic style? An opinion of a fact does not remove the fact that a fact is still there. Anyone can have an opinion – just like your so-called ‘answers’ – but a meaningless opinion untethered to either facts or law (which yours have been) are not what constitutes answers in an intellectually honest exchange.
“What can I say. I’m very detail-oriented.”
Um, no – embracing pedanticism is not the same as being detail-oriented. Being detail-oriented means understanding not just all the details, but how those details appropriately go together. On these boards that means understanding the facts, the law and how these things go together – just as my posts show you.
Anon:
“You are not too detail oriented, are you?”
I guess you and I are using different meanings for the word “pedantic”.
“You seem really stuck on this notion that all future changes are somehow ‘in there’ in the ‘oldbox.’ Must be magical for you to deny reality.”
Not at all. Swap out the CPU, or replace a magnetic platter with a solid state drive… NOW you have changed the computer.
“Your ‘wheel barrow” analogy is a fail based on the well-recognized exceptions to the judicial doctrine of printed matter. It really does matter when the bricks have a functional relationship and you are doing more than just carrying bricks.”
Okay, let’s throw the bricks in the bed of a pickup, to assist traction. And carry bricks. New Machine?
“Let me clarify: I am not looking for blatantly wrong answers. Does that help your overly pedantic style?”
I’m pretty confident I can manage being blatantly wrong and pedantic. I’m not sure that really helps my “style”, so I’ll say, “Maybe not?”.
I also now understand why you accuse everyone of running away from, and not answering, your questions. If they don’t give the particular answer you want, then you hold that they didn’t answer the question.
“Um, no – embracing pedanticism is not the same as being detail-oriented. Being detail-oriented means understanding not just all the details, but how those details appropriately go together.”
OH! Okay, I can’t be simultaneously detail-oriented and blatantly wrong. Got it. Thanks.
“Okay, let’s throw the bricks in the bed of a pickup, to assist traction.”
They assist traction in the wheel barrow too actually. Quite handy if you’re going up and down a hill with a load of wood.
Although I should add that many of us “run away” from him because he’s blatantly mentally disturbed. And he also causes inter-personal issues.
“ also causes inter-personal issues.”
That’s some serious projecting you are doing 6.
Did you not just get done trying to explain your own sense of not having – what was it called – social obligations – ????
“Not at all.”
All.
“Okay, let’s throw the bricks”
Do you even know what the well-recognized exception means? Or you so just wanting to be pedantic again?
“Let me clarify: I am not looking for blatantly wrong answers. Does that help your overly pedantic style?”
“I’m pretty confident I can manage being blatantly wrong and pedantic. I’m not sure that really helps my “style”
That depends on your aim, doesn’t it? Are you aiming to understand? I would say given what you have posted, that that answer would be a firm “no.”
“If they don’t give the particular answer you want,”
Not at all – that’s a totally deceptive mischaracterization.
“Um, no – embracing pedanticism is not the same as being detail-oriented. Being detail-oriented means understanding not just all the details, but how those details appropriately go together.”
“OH! Okay, I can’t be simultaneously detail-oriented and blatantly wrong. Got it. Thanks.”
Another deceptive mischaractization. I pointed out that they are not the same – nowhere did I indicate that you could not be blatantly wrong. The difference my pedantic friend is that you are simply NOT detail-oriented (as you are getting those details of TWO different propositions mixed up, and the notion of being detail-oriented is that you are able to keep details straight. You clearly are not doing that.
6:
Just in case the chink in Anon’s emotional armor escaped notice, we have him posting, up-thread:
“I suggest that you work on that lack of understanding as I care ….”
Make of that what you will. 🙂
6:
“They assist traction in the wheel barrow too actually.”
Okay, good point. I did not have stationary traction in mind, but it’s valid.
Anon,
“Do you even know what the well-recognized exception means? Or you so just wanting to be pedantic again?”
Not in the depth that you do, I’m sure, but I’ll take a stab at it. Printed materials can make it back into 101 eligibility if the printed article serves a function within the invention, beyond informing the human reader. The problem with applying that to the data in the computer is that the computer and its software capabilities have already been invented. The transitory data is not a “component” of the “invention”, and you’re attempting to claim a monopoly on just that data by disengenously claiming a “new” computer has been invented by putting the data on it. The printed matter exceptions require more than just the printing to back under 101.
“That depends on your aim, doesn’t it? Are you aiming to understand? I would say given what you have posted, that that answer would be a firm ‘no.’”
Depends? Sure. Aiming to understand? I’ll go with “yes”, but I think we’re just too far apart to reach common ground.
And my bricks have “ACME” printed on them in glow-in-the-dark ink, to make them easier to transport at night.
🙂
Dobu at 11.2.1.1.1.21,
Do not mistake compassion for weakness.
“The problem with applying that to the data in the computer is that the computer and its software capabilities have already been invented.”
No – not in the particular configuration. That’s the part you keep missing.
That’s also why the analogy of my big box of electrons, protons and neutrons wrecks your “logic.’ Those particles are each very old. The mechanism for how they attach is also very old. Yet, my big box of these items (each “already in there”) can be configured differently. And just as the simplified three resistor example shows – the different configurations (or ‘switches’ as you may have wanted to use) really do yield different ‘machines.’
“Aiming to understand? I’ll go with “yes”, ”
That would be assuming evidence not present. What is present is you trying so very hard NOT to understand – clinging to your notions of “data” and all improvements of the software nature are “magically” already in the ‘oldbox,’ refusing to recognize how your views do not square with reality.
“Do not mistake compassion for weakness.”
Compassion, LULZ!
If only you knew what real compassion was Mr. psychopath.
6, an might I add that one should not confuse weakness for compassion.
I reach out to you for your welfare and you call me names (that fit you) 6.
You are projecting again my friend.
Ned at 11.2.1.1.1.27,
You are absolutely right that 6 is making that passive/aggressive mistake with his weak posts along the “see a doctor” meme.
No one is fooled that he is trying anything other than attack the poster that wrecks his wanna-be, subjective, all-in-the-mind, make-up whatever you want, view of law.
He mouths ‘compassion,’ while it being clear that what he really wants is to not address the points I raise and to attempt to ignore those points because it is I that raises them. He would focus entirely on the speaker to the exclusion of what is spoken.