Just before the dawn of the Court of Appeals Federal Circuit, its predecessor court, the Court of Customs and Patent Appeals (CCPA) decided the eligiblity case In re Abele, 684 F.2d 902 (August 1982). In that case, Philips Medical sought protection for a method of transforming of a data-field to in order to highlight portions of the data with the most contrast. To me, the transformation seems to be the digital equivalent of a multi-dimensional derivative with the outcome displayed in greyscale. Claim 5 is limited to this method of transformation and display. Dependent claim 6 adds the limitation that the data is “X-ray attenuation data produced in a two dimensional field by a computed tomography (CT) scanner.”
In considering eligibility, Judge Nies distinguished between these two claims — finding 5 ineligible and 6 eligible. Nies explained that the calculating step – if it were alone – recites an ineligible algorithm and little was added by the display step. However, claim 6 brought something more because, with those express limitations, we now have an improvement to the CAT scan process. Similarly, the court found the apparatus-claim that was parallel to claim 5 ineligible.
What I don’t know is how these claims would be treated under the doctrines expounded by the Supreme Court in Alice Corp. and Mayo.
The claims:
5. A method of displaying data in a field comprising the steps of
calculating the difference between the local value of the data at a data point in the field and the average value of the data in a region of the field which surrounds said point for each point in said field, and
displaying the value of said difference as a signed gray scale at a point in a picture which corresponds to said data point.
6. The method of claim 5 wherein said data is X-ray attenuation data produced in a two dimensional field by a computed tomography scanner.
The questions are: (a) is the algorithm recited in claim 5 an abstract idea; and (b) do the limitations of claim 6 provide a sufficient inventive concept?
5. A method of displaying data in a field in a computer tomography scanner configured to receive X-ray attenuated, the method comprising the steps of:
This would pass 101 muster in the PTO, and it’s scrivener’s work. I agree with Commentariat that no matter what the method must be tied to some technical implementation. I will say I’m not in favor of invalidating patents because they were not drafted in the parlance of our times, even if the application was filed a mere 3 years ago.
I also don’t see how the 101 argument involves 102/103.
Look on the bright side, Wes. There might be a boom is reissue work.
I like to respectfully point out that the Abele claim 5 is virtually the same as the Alappat claim that was approved by the Federal Circuit in its “hypothetical” equivalent of a programmed general-purpose computer substituting for the circuits actually claimed in the overall graphics unit for a display. The source of data in Alappat was unspecified.
It appears that there is a consensus view here that claim 5 of Abele is unpatentable under Alice. What might rescue the claim would be some limitation to a specific machine such as a graphics unit for a display.
But this discussion clearly draws into question whether the hypothetical programmed computer equivalent of Alappat remains good “law.”
From Abele: claim 5 presents no more than the calculation of a number and display of the result, albeit in a particular format [a grayscale point in a picture]. The specification provides no greater meaning to “data in a field” than a matrix of numbers regardless of by what method generated. Thus, the algorithm is neither explicitly nor implicitly applied to any certain process. Moreover, that the result is displayed as a shade of gray rather than as simply a number provides no greater or better information, considering the broad range of applications encompassed by the claim. Indeed, this claim does not even attempt to “limit the use of the formula to a particular technological environment,” Diehr, 450 U.S. at 191, 209 USPQ at 10 , as was done in Flook,supra. Hence, we view claim 5 as directed merely to a mathematical formula which is not proper subject matter under §101.
I think this argument is reasonable and consistent with the framework of existing cases, including Alice. Claim 5 is ineligible because it’s unmoored from any technology. The breadth is astounding when you recognize that, at its limits, the claim covers a “field” of data consisting of … how many data points? 3? 4?
I don’t think claim 6 adds any technology that would or should rescue this claim. Part of claim 6 is certainly irrelevant: the “source” of the data or the abstract label given to the data. That’s the sort of “limitation” that can never impart eligibility to otherwise ineligible data-processing methods. The computer or the circuit is crunching numbers. It doesn’t care where the “data” is coming from.
I also don’t see why the recitation of an old device in generic terms, i.e., a “computed tomography scanner” should make any difference for eligibility considerations. It’s a field of use limitation and nothing more.
Is there a new “circuit” in this invention? If so, claim it in structural terms. If there’s an infinite variety of structures for that circuit, then claim the best ones according to their objective physical structures.
The front and center question that needs to be addressed is: are information processing algorithms the kind of technology that the patent system was intended — or even capable of — providing protection for. If so, then how are the logical information processing steps in these methods, which currently can be described in an infinite variety of ways, going to be searched and examined in view of the endless reams of prior art where (surprise) information processing steps are described in an infininite variety of ways? And is it realistic to expect the judiciary to come up with long-term practical answers to this question by addressing individual cases presented by particular parties who often have a vested interest in a particular answer that is unrelated to the public’s interest?
MM, the Viterbi algorithm allows the recovery of information from signals that do not have distinct 1’s and 0’s because of crowding or other reasons. The use of the algorithm make high density disk drive’s possible, and was also responsible the introduction of cell phone technology and Wi-Fi. Viterbi was honored by the IEEE as being one of the great inventors of the 20’th century.
link to spectrum.ieee.org
and was also responsible [for] the introduction of cell phone technology
Uh, that overstates things quite a bit (and sounds like the West Coast version of history). The AMPS and several other early cellular systems around the world worked just fine without the Viterbi algorithm. That said, Viterbi’s contribution to the field of communications is immense.
All that’s very nice but it’s also beside the point.
I’ve made some nice discoveries, too, and I know plenty of people who made even nicer ones. I was bestowed with honors. Those people were also bestowed with honors and they are still being honored, around the world, for their contributions to science and technology. Most of these people were not driven by a desire to own patents or even a desire to make money hand over fist with the help of the patent system. They were driven by curiosity and a very innate, very human desire to solve difficult problems with their brains and their sweat.
If we believe that the patent system (or some “special” version of it) can be used to promote progress in the art of mathematical transformations of data without devolving into a free-for-all or emboldening a class of patent attorneys to bend the system into a money-siphooning operation at everyone else’s expense, at the very least we need to come up with a coherent reasonable approach to distinguish the Viterbi-type innovations from those concocted by Johnny McPatent, Esq. in his law office.
Personally I’m not sure that it’s possible. I think that impossibility is part of the reason that pure math isn’t eligible for patenting (and I’m not aware of anybody suggesting that it should be). That said, I’m willing to be persuaded. The existence of important mathematical advances made in the past is beside the point, particularly when the evidence that patents “promoted” those advances is weak or non-existent.
And jsut fyi: The Viterbi algorithm is named after Andrew Viterbi, who proposed it in 1967 as a decoding algorithm for convolutional codes over noisy digital communication links.[2] It has, however, a history of multiple invention, with at least seven independent discoveries, including those by Viterbi, Needleman and Wunsch, and Wagner and Fischer.[3]
MM, Viterbi was a professor when he made his discovery — and he never applied for a patent on his original algorithm, just published it. However, other reduced his algorithm to practical applications and received patents for it. IBM was the first to do so in the disk drive industry, and it represented a great leap forward.
I am sincerely glad that Viterbi eventually was rewarded for his algorithm by participating in Qualcomm.
But Viterbi’s algorithm represents just one small advance in communications that have taken place over the years. Many of the advances are in encoding and noise reduction, and most of these advances are mathematical.
I share your dismay at patents being issued on unparseable algorithms. I filed a few on Reed-Solomon error correction methods myself. When I interviewed the cases, the examiner said he was the only examiner in the entire office that understood the technology. I think the solution is to include mathematicians as examiners. But I would be resistant to banning all improvements that are mathematical in nature.
I would be resistant to banning all improvements that are mathematical in nature.
That brings us back to the burning question of where to draw the line.
I would suggest that, when it comes to tangible objects, the answer lies first in being able to identify (and recite) an objective structural difference between the closest prior art and the claimed invention, as well as evidence that there is patent-worthy difference in utility and/or some unexpected result flowing from that structural difference.
Since 101 claim rejections are now something of a “mashup” with 103 in practice, I think it is important to note that the breadth of these claims is is not only relevant to its level of “abstraction” and/or “premption” but also relevant to who is the 103 POSITA, and also relevant to what can be argued [after KSR] to be “non-analagous art” to try to avoid 103. Here, in claim 1 the POSITA is broadly a person of ordinary skill in the broad art of displaying sofware data, and in claim 2 it is arguably a computed tomography scanner expert or the kind of software expert a company making those products would hire. It may not succeed in changing the result in many cases, but….
Anon2: Shhhh… careful throwing around that phrase “public policy”… you are implicitly talking about the delivery of “health care” for the people… who are the “public”… with whom the rights of the patent owning wealthy medical equipment manufacturing companies .. must be “balanced” to ensure “access” to the care they “neeeeed”.
A well-functioning patent system exists for the benefit of the public. See Medtronic v. Mirowski (Supreme Court 2014 – unanimous decision):
The public interest, of course, favors the maintenance of a well-functioning patent system. But the “public” also has a “paramount interest in seeing that patent mo nopolies . . . are kept within their legitimate scope.” Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., 324 U. S. 806, 816 (1945).
Adding: It’s wise to remember that the public interest is a critical, essential part of the equation in every one of these “big” patent cases.
Insofar as the public is composed of individual people, and each person of this “public” has an interest in the protection of his or her patent rights, I agree that the patent system is in the interests of “the public”.
I would not characterize this as falling within the concept “public policy”, however, I can see how it would make sense to do so if one conceives of the government’s paramount duty to protect and uphold the rights of individuals as being “public policy”.
In the course of advocating for changes in the law, it’s also a weak strategy to ignore or, worse, demean the interests of the 99.9999% of the population who does not own patents, who never will own patents, and who are often justifiably suspicious of the motives of those pushing for expansive patent rights.
In the course of advocating for changes in the law, it’s also not wise to ignore or, worse, demean the interests of the vastly larger portion of the population.
Your right to *free speech* is not predicated on whether you are a journalist or not.
Your right to ownership of real estate is not predicated on whether or not you are a real estate tycoon or not.
Your right to patents, i.e. intellectual property is not predicated upon whether you actually have created anything.
To the extent the rights of free speech, ownership of real estate, or patent, of journalists, tycoons, and inventors is upheld or violated the rights of everyone (you included) are likewise protected or threatened.
Your right to *free speech* is not predicated on whether you are a journalist or not.
It’s also a mistake to equate a patent claim with a fundamental right listed in the Bill of Rights, as matter of fact and also from the point of view of trying to persuade the public at large that the claim scope is appropriate.
Your right to patents, i.e. intellectual property is not predicated upon whether you actually have created anything.
I understand that the ownership of a patent — which does indeed require someone to have invented something — is transferable. But it’s not a fundamental right.
Your right to ownership of real estate is not predicated on whether or not you are a real estate tycoon or not.
That’s correct, but ownership of real estate is also not a fundamental right and We the People can seize it when certain conditions are met.
I’m not going to belabor the point further because this is off the topic of the thread. You raised the issue and I thought it deserved a response.
Likewise.
Malcolm, clearly the Lochner era represents one example of the Supreme Court being wrong such that the law had to change to accommodate the wishes of the American people.
link to en.wikipedia.org
Ned: clearly the Lochner era represents one example of the Supreme Court being wrong such that the law had to change to accommodate the wishes of the American people.
I can’t tell from your comment what judgment you might be passing on “the Lochner era.” But that doesn’t matter.
What matters is that we have a very fresh 9-0 decision from the present Supreme Court that tells us what sort of considerations lie behind their decision-making when it comes to patent law. Advocates are free to ignore this fact at their peril.
[shrugs]
The Supreme Court has reversed itself many times. See, e.g., link to en.wikipedia.org
No doubt. I believe the historical tendency is that it takes many years and quite a bit of public opinion shifting before they reverse a unanimous decision.
To me, it is pretty clear that both claims would fail given Alice and Mayo and how those rulings are being applied. But both claims should not fail. Under Alice and Mayo courts are encouraged to derive the gist of the invention (not in so many words perhaps, but that is what it is). If that derived gist is an algorithm that is sufficiently straightforward/obvious, all the claims tend to be lumped together and found ineligible for patent protection. Yes, courts discuss the test “do other recited elements render this a claim to something other than purely an abstract idea.” However, should the claim in question/under discussion fail to meet that test, of the cases I have seen it does not seem to matter what the other claims specifically recite. All the claims are ruled ineligible for patent protection, with no separate analysis. It’s as if they are not there.
I don’t see how claim 6 in and of itself recites an abstract idea. It applies the algorithm to hardware (a scanner) to produce a display of real medical data (X ray attenuation data). Algorithms applied by hardware to generate data reflecting physical (versus e.g. financial) phenomenon should be eligible for patents. I know of no compelling public policy reason why that should not be the case.
(Shhhh… careful throwing around that phrase “public policy”… you are implicitly talking about the delivery of “health care” for the people… who are the “public”… with whom the rights of the patent owning wealthy medical equipment manufacturing companies .. must be “balanced” to ensure “access” to the care they “neeeeed”.)
Actually, while I am all for these claims like claim 6, I have no problem with compulsory licensing in some cases despite the validity.
Mark, claim 6 is not different from Diehr. Input, calculate, output.
This is a transformation of a data representing a real physical signal to provide and improved display. Both a statutory process is improved and a statutory machine is improved.
Claim 6 is exactly what the Solicitor argued to be the kind of claim that should pass muster.
Claim 1 of the Diehr patent is “A method of operating a rubber-molding press” with the final step being “opening the press automatically when a said comparison indicates completion of curing.” I believe that this qualifies as more than “input, calculate, output”.
I had the same thought.
The “output” isn’t merely the transmission or display of information achieved via old technology (e.g., a generically described “display”). The machine transforms physical matter (rubber), not just data, and the machine moves.
I’m not suggesting that the recitation of movement or the transformation of physical matter should render every patent claim eligible per se (even Diehr’s) but it’s an important distinction vis a vis Ned’s characterization.
NS II and MM,
But the “process” describes an improved CAT Scan machine. The functioning of that machine is improved. This is the something more that the Supreme Court IS looking for, IMHO, and this is consistent, entirely consistent, with the argument made to the Supreme Court in Alice by the Solicitor.
The material difference between Abele 6 and Diehr is that the latter produced an improved manufacture in a specific process, while the latter an improved display of a specific machine.
Umm…
It would appear to improve the DATA display from a machine (in this case a CAT scan).
The CAT scanner didn’t change. The data generated didn’t change. The data was transformed into other data that looked better when displayed on a generic display.
I agree with jesse.
If we want to promote progress in the art of better devices for displaying data, the best way forward is to force applicants to claim those new display devices in distinct objective structural terms and not logical manipulations numbers.
Otherwise we’re handing out patents on math.
But Abele 6 wasn’t directed toward a better display device, it was directed toward a better display of information on an existing device.
If all information processing claims using new methods but old equipment are to be struck down, that necessarily includes new information processing methods using old medical devices (including CAT scanners and computers) for improved medical care.
Is that really the intent? Are we suggesting that giving a doctor more relevant, timely, and/or comprehensible information about a patient is outside the scope of “the useful arts”?
When we’re talking about video displays, a software user interface is always just lights on a screen. One can enumerate every possibility for what could be displayed on a video display at any moment — for a full HD screen, there are about 34.8 trillion possibilities. But better user interfaces can make a huge difference (both positive and negative) in the ability of a user to interact with a system.
The thing is, hardware is basically a commodity these days. The currency of modern society is information (e.g., Google, $400B market cap), and much of the improvement in how we do things involves better ways of accessing, storing, and manipulating that information.
Are we really suggesting that all of that lies outside the scope of patentability? If not, how do you draw the line between “a better way of using a CAT scanner with a computer to save more lives” and something less life-and-death, like financial transactions or slot machines?
The patents on information manipulation are worthless. They attempt to lock up the IDEA of information manipulation. All such manipulation is based on mathematics anyway.
And before you bring up the patenting of software, are you going to accept giving the Mathematica application patents on the software it can create from the math formula supplied to it? (yes, it can write C code)
Most of those “manipulating that information” processes are counted as trade secrets.
Not patents.
You will find no patents on Googles search algorithms, nor those of IBM (especially those of Watson), Microsoft, Yahoo,….
They are all trade secrets.
What do you mean there are no patents on Google’s search algorithms? Here’s the patent on PageRank:
link to google.com
Is that invalid in view of Alice?
Personally, I would say it is invalid.
I’m also fairly sure that isn’t what they are actually using now… (the algorithm has been tweaked and changed a lot since then).
Oh, and this isn’t the search algorithm – this is the sorting order for the results of the search, as this is what puts the “most likely relevent links” at the beginning of the results.
Any given search will return thousands upon thousands of references, but sorting that list of references by the most relevant is really hard. (and if you look at the math, it isn’t all there – there is an alpha term between 0..1 constant that isn’t shown).
Are we suggesting that giving a doctor more relevant, timely, and/or comprehensible information about a patient is outside the scope of “the useful arts”?
No. We’re talking about patent claims and what those claims are permitted to cover so that patents really do promote progress in the “useful arts” rather than the alternatives: tying up the building blocks of technological progress such that progress is slowed, to everyone’s detriment, (except, of course, for the tiny, tiny fraction of people who own all the patents) and legally practicing the “useful arts” becomes impossible unless you can afford a patent attorney.
Also, you shold recognize that there are many methods of giving a doctor relevant, timely and comprehensible information that are indeed ineligible for patenting and always will be. Using your mouth or a letter or any other old technology to communicate incredibly valuable and non-obvious information to a doctor are mundane examples which you should be familiar with.
But better user interfaces can make a huge difference (both positive and negative) in the ability of a user to interact with a system.
You are missing the point. Information about a correlation can make the difference between life and death. That doesn’t make the information eligible for a patent — and that’s a good thing for everybody.
If not, how do you draw the line between “a better way of using a CAT scanner with a computer to save more lives” and something less life-and-death, like financial transactions or slot machines?
One answer is that you describe your slot machine or your CAT scanner in objective structural terms such that the the machines are distinguishable from the prior art on that basis. Then you’re in good shape. Methods of “financially transacting” have no place in the patent system and we’re going to be seeing their complete and most welcome disappearance very shortly.
Jesse, you’re right about the machine here.
Because all the apparatus is old, the only thing improved is the process. But it is a specific process from a specific machine with respect to claim 6, and that should be enough.
I might have accepted “enough”, except that the “process” existed in math (and application) for a LONG time before this patent.
Even the old TV sets from the 50s had the process. They had a brightness control, and a contrast. It was up to the user to decide how bright the original signal was to be, and the use of the contrast control spread the data values…
Okay.
I am willing to concede the point that if you have a generic input, unspecified, calculation, and a display, then the claim is too broad and the mathematics is unduly preempted.
The point where the claim becomes limited enough is where the claim is limited to the CAT scan data.
My only point was that claim 6 of Abele is very different from Diehr, so it doesn’t serve as a good analogy.
Without regard to whether claim 6 is or should be patentable, I don’t think it is sufficiently different from claim 5 for it to be analyzed differently. In terms of the patentability of data processing claims, I don’t see why the source of data should make a difference. For example, in place of CAT scan data, one could claim “data from an imaging device”, which effectively captures all practical uses. If “displaying” is not enough to make claim 5 patent eligible, I don’t see why changing what is displayed should make a difference.
Non S,
But the how point here is to provide a specific application and not to claim the algorithm for all applications. Preemption appears to be the concern.
It remains to be seen just where the cutoff is.
I think we are working under different definitions of “specific application”. I would not consider simply limiting the type of data processed to be a specific application.
The problem is that the algorithm accepts data for all applications… Even color data can be processed, though it needs to be converted to either HIS or YUV – forms that have a grey scale component, then the algorithm is applied to that component, and the result converted back to RGB or whatever the output format desired.
It can even be used to apply false color to highlight areas of interest.
Ned, If I may, by what principle are you drawing this line between what should be allowed and what is unduly preemptive?
Dennis, I refer to Diehr and its holding where the court said that the “when a claim containing a mathematical formula implements or applies that formula in a structure or process which, when considered as a whole, is performing a function which the patent laws were designed to protect (e. g., transforming or reducing an article to a different state or thing), then the claim satisfies the requirements of § 101.”
I think there can be no doubt that when a claim is directed to an improvement in a process which passes the MOT per Diehr, or to an improvement to a machine or to a new or improved manufacture or composition of matter, the claims are clearly directed to a “function which the patent laws were designed to protect.”
In contrast, when the claims are not so directed, but tend to preempt the otherwise nonstatutory subject matter such as a mathematical algorithm or basic economic principle, or abstract principle such as found in Rubber-Tip Pencil, the courts have uniformly struck down such as being unduly preemptive and therefore a violation of 101.
The posters here have somewhat convinced me that not specifying a specific application, but instead claiming gen eric inputs and outputs, is tantamount to claiming the mathematical algorithm for all applications — which is too abstract, too preemptive. So the dividing line here is the limitation to the specific CAT scan process.
Circling back as the originator of this thread….and having read the intervening comments….I come out on this as I came in. Ned is right, there is no “abstract idea” that is preempted by claim 6. Whatever the “gist” of the invention may be that we derive from claim 5 is not wholly preempted by claim 6. My concern with recent cases is courts tend to focus on what they label an “exemplary claim,” conclude it is patent ineligible applying CLS, and substantively that’s the end of it. There seems to be no real discussion or consideration of the substance of other claims in the litigation, and whether or not they individually have a similarly preemptive affect for whatever the “gist” is.
Put it this way….is anyone aware of any case in which the “exemplary” claim was found to be patent ineligible, but there was some other claim applying the identified “gist” in a way that was not wholly preemptive, such that it was determined to be patent eligible?
So maybe the problem is the test itself. CLS asks, does the claim include sufficient other structures or limitations such that it does not claim an abstract idea. Maybe the test should be, does the claim as a whole completely or substantively preempt all practical uses of the identified abstract idea? I think the differentials between what should be eligible and what should not would be sharper/clearer with a focus on preemption.
I agree with your analysis of claim 6
Under Alice claim 6 is directed to the abstract idea of displaying x-ray data and is therefore invalid.
Which is why Alice is a a terrible decision.
I agree. I think it’s a case of “bad cases make bad law”. The Supreme Court keeps getting business method cases, where the main concept does ostensibly seem old or well known and the computer operations really do seem to add nothing. They need to get a case where the claims are directed to something like Abele, or where the claims are directed to an “abstract idea” but where the concept is new and non-obvious and where its implementation on a machine (even if only on a computer) is useful. At least then the concepts would be before them and they could directly address them.
PatentBob, Alice actually follows Rubber-Tip Pencil, is consistent with Hotel Security, etc.
If a claim produces a new or improved machine, conventional process, manufacture, or composition, it certainly passes 101.
As I noted below, that is what the court was looking for in Funk. Bros. as well:
“The combination of species produces no new bacteria, no change in the six species of bacteria, and no enlargement of the range of their utility. Each species has the same effect it always had. The bacteria perform in their natural way. Their use in combination does not improve in any way their natural functioning. They serve the ends nature originally provided and act quite independently of any effort of the patentee.” 333 US 127, at 131.
Certainly here, claim 6 passes every Supreme Court test.
Every Supreme Court case says that the specification of a work piece provides allowability to an otherwise invalid claim?
Kewl, good to know.
Agree 100%. In most of these cases actually decided, I do not usually disagree with the actual judgment, just the rationale or reasoning used to reach the conclusion. I want to see an Abele like case come to the SC.
Nods.
Les, you fail to consider that the claim 6 recites and actually applies an improvement in a conventional process or machine.
umm… which process?
Most X-ray tomography machines generate data stored on a disk/memorystick/…. Which is then transfered to something else for processing – the main reason is to free the X-ray machine for the next patient…
Image processing is then done on a separate system to enhance features – and histogram equalization is just one of the things done. And that “separate system’ already has processes in place. The only thing that changes is the data. Nothing new. Even the processes in place are all math. Even the output isn’t new – target devices could be a film printer, paper, or computer monitor (in any combination).
Now claiming the X-ray tomography data generation… that might be new…
jesse, I think you make a fine distinction between connecting the computer that is doing the calculation with the CAT scan machine or simply gathering the data from machine or later manipulation and display.
What I think is more important is that the process of displaying CAT scan images always includes capturing the data, processing that data, and then displaying that data. This is the conventional process that is improved, and per Diehr, should present no particular 101 problems.
Of course, the matters entirely different if the source of the data is undetermined and/or if use of the data is unclaimed.
So someone else could patent an X-ray CAT scan of a steel pipe and get away with it?
Or patent taking an X-ray scan of the sky and doing the same thing?
All have the same “process”.
In fact, the image processing was created before CAT scans have existed. The CAT scanners just created data in the same form the image processing workstations used.
Ned – Claim 6 merely specifies the work piece.
Les, “Ned – Claim 6 merely specifies the work piece.”
True, but it is enough to make it a specific application of a principle. That is what Morse and all the other cases require.
Bilski’s risk-hedging method was held invalid both generally (claim 1) and as applied to energy commodity trading (claim 2). What’s the difference between that and Abele’s method generally (claim 5) and as applied to CAT scan data (claim 6)?
Maybe commodity trading is an abstract idea too. I guess if claim 3 specified pork bellies or Fresh Frozen Orange Juice, that claim would have been valid.
Slot,
From Morse through Alice, the courts have always required a practical application (the opposite of preemption). By this, they mean, of course, an application that is statutory — a new or improved machine, manufacture, composition or conventional process. See e.g., Diehr which said,
While there is some question as to whether the claims in Abele are sufficiently specific, there is no question that the claims in Bilski are not directed to a machine or process which the patent laws were designed to protect.
I did a little exercise where I took all of the applications I am currently working on, including mechanical ones, and was able to boil each down to an abstract idea. We are on a patent self-destruct course.
I thought patents were supposed to be on implementations of an idea; not the idea itself.
And why exactly isn’t claim 5 directed to an implementation of a method? I see verbs. Calculating, displaying…
Displays are already patented as a “method to display” anything within the electrical specifications of the display… So I don’t see how plugging a cable between a display and something (also patented) that creates that signal as a patentable activity.
Calculating is an abstract activity… which I don’t think is patentable….
Calculating is an abstract activity?
Is stirring an abstract activity?
Whats the difference between the pencil and the spoon?