Guest Post by Jeffrey A. Lefstin, Professor of Law at the University of California, Hastings College of Law.
The Supreme Court’s decision in Alice v. CLS Bank resolved the easy cases: claims that merely recite a mode of organizing activity coupled with a generic instruction to “do it on a computer” or “do it on the Internet.” The key question left open by Alice is whether claims to specific information-processing techniques represent ineligible abstract ideas or eligible applications. Answering that question will be critical to resolving cases like California Institute of Technology v. Hughes Communications, Inc., and McRO v. Activision, discussed in Robert Stoll’s Patently-O post last month.
The patents in Caltech were directed to a method of generating error correction codes in digital transmissions. They described a method of generating parity bits by accumulating previously generated parity bits, and a sum of randomly chosen irregular repeats of message bits. Notwithstanding that the patents claimed only information-processing steps, Judge Pfaelzer of the Central District of California ruled that the claims were patent-eligible: while the claims were directed to the abstract idea of error correction, the algorithm for generating parity bits represented an inventive application of the underlying idea.
As Judge Pfaelzer recognized, that holding might be in tension with Digitech Image Technologies v. Electronics for Imaging, where the Federal Circuit, relying on Benson and Flook, suggested that any claim merely transforming information with “mathematical algorithms” is not patent-eligible. So Caltech squarely raises the question of whether specific information-processing algorithms are patent-eligible after Alice.
More generally, the significance of Benson and Flook after Alice is a critical question for future § 101 jurisprudence: much of the difficulty faced by the lower courts and the USPTO arises from attempts to reconcile the Supreme Court’s earlier caselaw with its decisions since Bilski.
It is time to acknowledge that they cannot be reconciled, and they need not be. While the Court maintains a pretense that all its opinions are coherent with each other, the regime the Court has crafted since Bilski represents a sharp break from its earlier decisions. Courts that continue to rely on Benson and Flook have not recognized the significance of Alice’s reaffirmation of the Mayo framework for patent-eligibility. For Mayo established both a different structure and a different rationale for subject matter eligibility than the Court had employed in its prior cases.
First, Mayo provided a new structure for the § 101 inquiry: step one is to identify an abstract idea or law of nature underlying the claim, and step two asks whether the claim further recites an ‘inventive concept’ that transforms the abstract idea or law of nature into a patent-eligible application. If that was not the analytical framework employed in the Court’s earlier cases, then the analysis and holdings of those cases are not necessarily relevant after Mayo and Alice. The Court itself told us in Bilski that its earlier opinions represented nothing more than explanations of the basic exceptions for laws of nature and abstract ideas.
Second, Mayo and Alice reoriented the rationale for subject-matter exclusions. Benson and Flook were premised in large part on the exclusion of subject matter not expressly authorized by Congress, the restriction of patents to tangible processes, or the exclusion of preexisting truths that exist apart from human action. Those premises were rejected in Chakrabarty, Bilski, and Alice, respectively. Instead, Mayo and Alice grounded subject matter exclusions on the ‘building-block’ concern: that patents on fundamental principles risk foreclosing more innovation than they promote.
Given the Court’s reorientation of the doctrine, Benson and Flook’s focus on ‘algorithms’ is no longer relevant. Abstract ideas, after Bilski, Mayo, and Alice, are not characterized by intangibility or field of invention. They are characterized by ‘fundamentalness’ – the concern that patents on basic concepts will foreclose too much further development. In this framework, a specific information-processing algorithm, such as an algorithm for generating parity bits, does not qualify as an abstract idea.
Caltech defined the abstract idea as the purpose of the claim, recited at a reasonably high level of generality: error correction, in the claims at issue. Identifying the abstract idea with the purpose or effect of the claim follows from the structure of the Mayo/Alice test. Step one defines the abstraction (if any) underlying the claim, while step two asks whether the application of that abstraction contains an inventive concept. The object of step one must therefore be to separate the idea of the invention from the means of application, which will be the subject of step two.
We already differentiate between idea and means of application in the law of inventorship: courts have long distinguished between formulating a goal, effect or result – which is not a contribution to conception – and formulating the means of attaining that result – which is a contribution to conception. So the Caltech analysis merely maps that long-standing distinction onto the subject-matter inquiry under § 101.
I discuss these ideas further, and develop a framework of ‘inventive concept’ applicable to both abstract ideas and laws of nature, in a forthcoming paper available here.
It is still difficult to tell what the patentable subject matter threshold is under Alice. I just got an allowance on a case filed 18-Feb-2015 (14/625,265), in which the Examiner stated:
“… claim 1 as amended not only recites using one or more computing
devices to perform calculations and engage in communication, but doing so to manage
transportation services for practical purposes which go beyond (although they include)
commerce as such, including managing the availability of transportation service
providers for backhauls or additional legs; the claims are therefore judged to be nontrivially
more than applying an abstract idea.”
This would be a little less the 4 months, and following an Alice rejection.
To my mind, the only way this should be discussed is in the context of the ladders of abstraction and enablement. Newman explains this in her Bilski dissent. What we have here is a descent into madness. The ladders of abstraction are what engineering students are taught. The fact that so many federal circuit judges don’t understand them (or probably have never even heard them) is an illustration that they should not have been appointed to the Fed. Cir. without science backgrounds.
Reality: we (the real people that should be practicing patent law not the liberal art major judges Obama has appointed) understand the ladders of abstraction. This whole thing is simple to understand. The SCOTUS has merely created a case that says, “You may invalidate any claim you wish without evidence ’cause we say so.”
The Supremes gave no limits to the “Gist/Abstract” sword.
If they are willing to wipe out a stipulated agreement between the parties that the statutory category aspect had been satisfied, and “Gist” away whatever they want to, with the remainder labeled “Abstract idea,” then there is quite literally nothing that is safe from the Court and we have indeed repeated history and arrived back in the pre-1952 “the only valid patent is one that has not yet appeared before us” zone.
We don’t need “academic reconceptualizations” to mask the bitter almond aftertaste. We don’t need “patent peace for our time.” We need to stomp on the gas pedal and FULLY embrace what the Court has wrought so that the abomination can be excised.
One of the big problems is that Obama has appointed an anti-patent director of the USPTO. We needed someone that understood prosecution and could fight the SCOTUS.
This is in many ways a flash of genius redux. The SCOTUS has gone wild–again.
There is just no other way to look at this but with the ladders of abstraction. Any other way gives in to the bourbon swilling liberal arts majors.
You really have to ask yourself what is going on here. The Fed. Cir. was created to harmonize patent law and it was understood that patent law was difficult for the liberal arts majors. Now Obama is appointing more liberal arts majors than science majors. Outrageous.
This Alice thing is an example where a strong Fed. Cir. with science majors could fight back and say look SCOTUS this Alice case law is absurd. Instead we have lap dogs that are happy to ride patent law into the ground for their life-long chuck wagon.
It is even worse than that.
Look at the so-called “legal minds” here. As long as the ends align with a desired viewpoint, the means to those ends are just not critically reviewed.
Plenty of “advocates” wanting the Supreme Court to rewrite statutory law with common law.
People wanting to ig nore the guidance of the man most closely aligned with the words of Congress – because he helped pen those very words.
Wide scale disrespect for the Rule of Law based merely on the most expedient way of getting to a desired end.
It makes Ned’s cries for respect of separation of powers for his active case into a very laughable (and inconsistent) joke.
Also, Night Writer, it is worse because the Article III court given direction by Congress to bring order to patent law has been repeatedly brow-beaten by the Royal Nine on matters outside of a strictly constitutional nature, thus defeating the intent of Congress in setting up the CAFC in the first place.
What we now need is a two step rectification:
1) officially remove the Supreme Court from patent appeals (entirely within Congress’s constitutional authority and does not violate Marbury since an Article III court still has review power).
2) Restock the CAFC with judges that know and understand patents and who have not been brow-beaten by the dogma of the Royal Nine.
Both are now needed because the infection of the Royal Nine has been allowed to metastasize and spread.
Night Writer,
…and it is about to get even worse with Eon engaging in revisionist and incorrect rewriting of the effect of decisions on Alappat from a panel group, seeing as the requirement of a panel at the CAFC to give authority to an earlier panel exists and the first panel after the Supreme Court version of Bilski completely validated Alappat, this re-writing has no authority to do what it attempts to do in dicta.
The CAFC needs to be purged of its brow-beaten judicial-activist infused members.
The CAFC needs to be purged of its brow-beaten judicial-activist infused members.
Oooooh!
But this isn’t a call for impeachment, right?
LOL
Purged is not synonymous with impeached, and the context (as you are well aware of) is also vastly different.
But what would this blog be without your attempts at dissembling?
“anon” : We need to stomp on the gas pedal and FULLY embrace what the Court has wrought so that the abomination can be excised.
And then what, Mr. Patent Lover?
Please tell everyone.
You’ve had at least five years to come up with answer to this question. Do you need to a phone a friend?
We have statutory law as it was meant to be under the constitution.
You act like that was a difficult question. Perhaps you should have asked it more directly five years ago, as somehow you think the question was on the table for that long (hint: it wasn’t).
We have statutory law
LOL
Deep stuff, “anon.”
Not sure what point you are trying to make Malcolm.
Perhaps you can use those short declarative sentences you are always on about.
My point is that you are cheering for some judge-made “abomination” to be excised, as if that excision would not lead immediately to a replacement iterating the same fundamental principles that the Supremes (along with many others, including yours truly) have laid out for everyone.
But if you have some other replacement in mind that you think is viable, please share it with everyone. As I already noted, you’ve had a long time to think about your answer. Share it with everyone.
You’ve said absolutely nothing here.
Try again.
Use those short declarative sentences you are always on about.
Night Writer,
What’s a “ladder of abstraction” and why would engineering students be taught this? (You’ll have to forgive me, but if I was taught this in engineering school, either I forgot about it or no one referred to it as such).
Read Newman’s Bilski dissent or just google it. The schools I went to taught it first year.
Night, I partially agree.
The problem began in State Street Bank when Rich overruled Hotel Security. It was extended in In re Bilksi when the Feds went MOT rather than simply overrule State Street Bank. I finally hit bottom in the 5-4 decision in Bilski, where the majority thought the problem with the claims there were that they were abstract instead of listening to Stevens who simply wanted to restore Hotel Security.
Now we are lost in a bizarre land of abstractness thanks to the Bilski 5, who got their clue from none other than that wizard, Rader.
All we really have to do is read and follow Hotel Security to get us out of this mess. If one interprets Alice in view of Hotel Security, all becomes clear and easy to understand.
Ned,
Even Prof. Crouch has warned you that you are misapplying Hotel Security and recently David schooled you on your inappropriate readings of case law.
Please stop embarrassing yourself.
anon, really?
Yes Ned, really. This is not just me telling you this, which you tend to run away from, but David and Prof. Crouch as well.
You seem oblivious to anything outside of your desired end state. Quite sad, really.
David schooled you
Oh noes! How embarassing to be schooled by the great David Hricick.
Wrong David.
But thanks for jumping to the conclusion and showing your bias against Prof. Hricik. Maybe you want to throw in some of that ob session thing you have with Quinn…?
Wrong David.
Oh, excuse me. Which of your awesomely authoritative buddies were you referring to, “anon”? It’s hard to keep up with the patent expansionists super-serious-experts du jour.
your bias against Prof. Hricik
LOL
The same David that you (once) attempted to engage in a serious conversation and burnt your fingers with volunteered admissions that you knew and recognized the controlling law as to the exceptions to the judicial doctrine of printed matter and that you recognized that “configured to” was structural language to Persons Having Ordinary Skill In The Art.
Of course, expecting you to have any inte11ectual honesty about your own volunteered admissions – while such would be reasonable in order to have any hope for a meaningful dialogue – is simply too much to expect from you based on your nine years and running history. Thus, the best that can be hoped for is the recurring notice (to any possible new readers) of your enduring dissembling and dishonesty.
Have a nice day.
Night Writer: we (the real people
LOL
The best and the brightest that the software patent lovers have to offer.
You really can’t parody this stuff.
Another garbage post by the paid anti-patent blogger.
Leftsin: formulating a goal, effect or result … is not a contribution to conception
Interesting.
Consider the following:
An improved and configurable machine, wherein said configurable machine is identical to an old machine except it has a new functionality, wherein said new functionality is [insert non-obvious useful functionality here].
Have I “conceived” of an “invention”?
formulating the means of attaining that result – which is a contribution to conception
“Configure it”.
There. Now I’ve contributed to conception and I have a claim that protects the recited functionality on all machines, regardless of the actual physical structure of those machines and regardless of my inability to conceive of that physical structure.
Some “distinction”.
“regardless of my inability to conceive of that physical structure.” — then it fails the enablement requirement, doesn’t it?
“regardless of my inability to conceive of that physical structure.” — then it fails the enablement requirement, doesn’t it?
Share with everyone the argument you have in mind.
Assume first that the alleged inventor can not or has not conceived of a single novel physical structure distinguishing his “new” machine from the machines in the prior art.
Then assume that nobody else can do so until a single functioning machine is actually created and examined under a microscope (or by some other method) to determine what, in fact, the novel structural distinctions are which are responsible for the functionality.
When is the alleged “invention” enabled, according to you, in each scenario and what is the scope of enablement?
Once again dissembling about one optional form of claim structure, pretending that it is the ONLY form of claim structure allowed under the law.
Simply not so.
Plain reality Malcolm is that there is a physical difference and that claim language does NOT have to be in the singular form of delineating the physical distinction.
That is the law, no matter how much you whine about it.
The proper legal distinction you might want to contemplate is inherency and the plain fact that “old box” without change simply does not have the new capability in the claim language of the new innovations.
This has been explained to you many times. It would be nice if you actually posted with some sense of inte11ectual honesty on this fundamental fact and stopped your dissembling.
“anon” there is a physical difference
No doubt there is a “real difference” between a machine with functionality X and a machine with functionality Y.
But you can’t claim “new functionalities.”
For starters, as your BFF “Kip” has pointed out downthread, “new functionalities” aren’t a statutory category.
Secondly, if you fail the describe those physical differences that matter in your claim to your “new” machine, then what you are really doing is claiming the abstract idea of a “machine that does this new thing.”
This is just the application of logic and reason to fundamental principles that nobody finds controversial, “anon.” That’s what makes you so nutty.
Pull out your “box of protons” again so we can all have a laugh.
Nice dissembling Malcolm – clearly you missed the memo that claim terms in purely structural terms is ONLY one option of writing claims.
As I mentioned:
“That is the law, no matter how much you whine about it.”
(Your odd strawman of “claim functionalities” is thus set gently to the side)
MM, actually, it is really interesting that the Supreme Court had exactly this case in Le Roy v. Tatham. The machine was old — used to make pasta. Now it was applied to hot lead The resulting lead, pressed through the holes in the annulus by the piston, reformed and made high quality lead pipe.
Was this a process? A machine. What? The claim was to old machine for a new use. But it was claimed to be a new machine.
Story would have denied the patent as the machine was not new. The dissent would have held the claim to be for a process.
But what did the majority decide?
link to scholar.google.com
There are posters on here who post the same thing over and over. Don’t respond to them and maybe they will get bored. Don’t engage with nonsense.
Except when it is Jason that is posting the nonsense, we must respond.
Ned doing his best pot and kettle with the nonsense.
JCD,
Sadly, nine years and running (and ALL objective measures as to this particular thread), tell a different story.
All that you are doing is being “a good man, doing nothing.” If you let the propaganda fester, it will NOT go away.
But careful there – no matter how disingenuous certain posters are and how often they disregard the counter points put on the table for discussion, if you are the one calling them out, then you too can be censored.
C’est La Vie
We already differentiate between idea and means of application in the law of inventorship: courts have long distinguished between formulating a goal, effect or result – which is not a contribution to conception – and formulating the means of attaining that result – which is a contribution to conception.
This is pretty much the only part of the post I agree with wholeheartedly.
Lets take some claims:
1. Means for achieving result X (pre-52).
2. Means for achieving result X (post-52).
3. Conventional Steps 1, 2, 3, functionally claiming result X.
4. Conventional Steps 1, 2, 3, means for achieving result X.
5. Result X.
Claim 1 and Claim 5 are coextensive, overbroad under 112(a) and (b) and ineligible under 101. A “result” is not an invention, a result is what occurs after one uses a particular invention. The result preexisted the machine that made it occur.
Claim 2 is the (nowadays) rare Hyatt/non-112(f) single means claim rejection, and is coextensive with Claims 1 and 5.
Claim 3, while of a different scope from Claims 1, 2 and 5, suffers from the same infirmity of being overbroad and ineligible because one cannot prove enablement and possession of an entire field. Claim 3 could only be valid in extremely rare circumstances proscribed under GE v Wabash and the contrapositive of Morse. The author’s suggestion that “fundamentalness” is the viewpoint is bunk. The scope of the field is actually irrelevant as is whether the field is something “fundamental” or not. The only question is whether the scope of the claim reaches beyond what the inventor himself invented; and in that manner, 101 is similar to 112(a)’s written description requirement.
Claim 4 is the only claim that is generally valid, and only because of the operation of 112(f) to substitute what would have to be non-conventional steps 4 through N from the spec into the claims.
You’ll note that 4 is doing exactly as the quoted passage suggests – rather than formulating a goal, effect or result it formulates the means of achieving that result. That’s the only thing allowably claimed.
It’s really too bad that you don’t understand what 112 means according to the law passed by Congress in 1952.
See Federico.
(It also would help if you understood what the ladders of abstraction mean – you do have rings, Ya know)
Random, can there be a claim that exceeds the scope of enablement that nevertheless is not “abstract.”
If so, can you give us an example?
Professor Lefstin, your article on Inventive Application is the best law review article that I’ve read on patent eligible subject matter. I can’t wait to read your new article.
That said, I have to take issue with your statements here. First you say that “a mode of organizing activity coupled with a generic instruction to ‘do it on a computer'” is not patent eligible after Alice. Your statement implies that this is a per se rule.
I think this represents a profound misreading of Alice and Bilski. The “organizing [human] activity” language derives from a long line of losing minority opinions – by Judge Dyk in Bilski, by Justice Stevens in Bilski, and by Justice Sotomayor in Alice – arguing for a categorical rule against such patents. All three of those minority opinions lost.
The closest you will get to a rule against “methods of organizing human activity” is one sentence in the Alice majority that characterizes Alice’s claim as such. But the Court, in the same paragraph, makes clear that this is not the reason why the Court invalidated the claim. “Instead, the Court grounded its conclusion that all of the claims at issue were abstract ideas in the understanding that risk hedging was a ‘fundamental economic practice.’”
The controlling language comes from Bilski: “hedging is a fundamental economic
practice long prevalent in our system of commerce and taught in any introductory finance class.” That describes both hedging in Bilski and intermediated settlement in Alice.
In view of the above, the better interpretation is that “abstract idea” is simply a legal term of art, created by judges, to make exceptions to the text of 101, based on a (weak) argument that Congress adopted them in 1952. So far, we know that the legal term of art refers to mathematical algorithms (Benson, Flook, Diehr) and “fundamental economic practices” (Bilski and Alice), as described above. We don’t know what else might be included in “abstract ideas,” because the Court refuses to define the term. But we know these are abstract ideas, and we also know that the Court has repeatedly told us to proceed cautiously and not to read conditions into the patent laws that Congress did not express. So the cautious approach is to essentially limit abstract ideas to these categories in the absence of a compelling reason to expand the number of categories. Notice: this is essentially the same approach, and reasoning, that Judge Chen used in the DDR Holdings decision.
I describe all of this in my public comments on Alice at the PTO:
link to uspto.gov
Kip: we know that the legal term of art refers to mathematical algorithms (Benson, Flook, Diehr) and “fundamental economic practices” (Bilski and Alice), as described above. We don’t know what else might be included in “abstract ideas,”
Sure we do, Kip.
All information is “abstract”. None of it is eligible for patenting.
…and once again with the strawman of information per se and (somehow) the goalposts being moved to TOTALLY in the mind…
Another day, same duplicity from Malcolm.
Of course, if your patent covers a technique for generating parity bits, then your patent doesn’t cover “information” does it? Instead, it covers, eg, an algorithm for performing something incredibly useful and therefore patentable under 35 USC 101.
Great “argument”, PatentBob! “Parity bits” plus useful = eligible.
Sure, that makes a lot of sense.
MM – that can’t be right for two reasons.
1. You don’t need a judicial exception to prevent patents on ideas, because “ideas” are not included within 101. You can only get a patent on a “process, machine, manufacture, or composition of matter.”
2. So you must be talking, not just about patenting bare ideas, but about patenting machines and processes based on ideas. In that case, you *can* get a patent, depending on the facts.
All patents are based on ideas, and all ideas are abstract in the literal sense. Just look at Google’s patent or Morse’s patent to see how patents based on ideas are still patent eligible. Morse’s patent is based the idea or “information” that you can use repeaters to preserve an electromagnetic communication. Claims 1-7 (but not claim 8) were valid, even though the claims are directed to that idea or information. Google’s patent is based on the idea of PageRank, but nobody has suggested (to my knowledge) that the Google patent is invalid. The same is true for most any valid patent in the IT, computer, and software spaces.
“1. You don’t need a judicial exception to prevent patents on ideas, because “ideas” are not included within 101. You can only get a patent on a “process, machine, manufacture, or composition of matter.””
That actually is what he’s talking about, because the art o the draftsman turns ideas into process, machine etc. And we can’t be havin’ on none of that which would tie up the idea itself.
Translation: we the Supremes need to Gist because the durn scriviners are actually following the letter of the law as written by Congress and we feel that patents are “bad“
Kip: 1. You don’t need a judicial exception to prevent patents on ideas, because “ideas” are not included within 101. You can only get a patent on a “process, machine, manufacture, or composition of matter.”
It’s 2015, Kip, so I’m going to assume you are either joking or tr0lling the blog. Which is it?
First of all, Kip, I used the term “information” in my comment. Why did you change terms and then put the term that you introduced in quotes, Kip?
Second of all, a mental process is a “process.” Therefore it’s eligible because 101 says “process.”. That’s the argument, anyway. Do you like it, Kip?
Information is created or “manufactured” just like other manufactures. Therefore information is eligible because it’s a “manufacture”, recited in 101. That’s the argument, anyway. Do you like it, Kip?
Plus my “new” hard drive that is filled non-obvious and useful information is certainly a manufacture. Therefore it’s eligible. That’s the argument anyway. Do you like it, Kip?
So you must be talking, not just about patenting bare ideas, but about patenting machines and processes based on ideas.
No, that’s not at all what I’m talking about, Kip.
All patents are based on ideas, and all ideas are abstract in the literal sense.
That’s nice, Kip. Nothing to do with what I’m talking about. You might want to spend some more time thinking carefully about what I’m saying instead of regurgitating the worst of the worst pro-software patent “arguments” out there.
Just look at Google’s patent
This is a joke, right?
MM, your comment strikes me as hostile and impolite. Why, for example, are you repeating my name in practically every sentence? To patronize me? And why are you assuming that I’m trolling or joking? I’m making arguments in good faith.
As best as I can tell, you seem to think that I’m arguing that the text of section 101 provides the only limits on patent eligible subject matter. You then attack that straw man by citing things that, in your view, satisfy 101 but are obviously not patent eligible.
I actually think eliminating (most every) judicial exception to 101 would not be such a bad idea. You can find lots of smart people endorsing that policy. But I don’t need to go to that extreme here. In my earlier comment, my point was not that there should be no judicial exceptions to 101. My point was that you don’t need a judicial exception to prevent patents on bare ideas. You might need judicial exceptions to prevent patents on other things, but not on bare ideas. That’s a subtle distinction that you seemed to have missed.
One last thing: repeating someone’s name over and over, and asking if they’re joking over and over, is not a real argument, and is not really polite. This failure to engage in reasoned, polite, good faith debate is why Patently-O comment sections have the reputation they do. With that said, I’ll bow out for now.
I don’t really understand people who talk about repealing parts of 101. What makes anyone think there is any chance of this happening? Has anyone outside the patent bar (and a few of their clients) indicated they would support such an idea? It honestly comes across as delu sional.
” You can find lots of smart people endorsing that policy.”
I wonder what they do for a living.
decide appeals at the Federal Circuit, for one.
I wonder what “Go” does for a living….
Leave it to Go to cheerlead Malcolm and completely miss thegist of your post Kip.
No help from the “unbiased” editors either…
This not-so-subtle “vouching” – even under the ever-polite guise of “Go,” while Malcolm runs rampant f001s no one.
I actually think eliminating (most every) judicial exception to 101 would not be such a bad idea. You can find lots of smart people endorsing that policy.
Name one.
Newman and Rader have explicitly argued for courts to follow the statute. The original drafters of the statute, Rich and Federico, generally wanted it to be followed closely without creating judicial exceptions.
Others criticize the abstract idea exception, if not the other judicial exceptions. Paul Clement filed a brief for IBM arguing to abolish the abstract idea exception. Chisum calls Benson a “failure.”
And these are just experts who have made statements on the public record. It doesn’t include judges and others who keep their criticisms of the Supreme Court secret because of political and institutional reasons.
follow the statute.
LOL. You make it sound so easy, Kip! You must be really smart, too.
Seriously, with all due respect to the “smart” people you mentioned, they don’t strike me as particularly “smart”.
Here’s a list of more appopriate terms:
Confused. Hypocritical. Self-interested. Deeply conflicted. Short-sighted.
I’d normally be happy to provide specific examples for you, Kip, that illustrate why those adjectives are more appropriate than “smart”, particularly when it comes to subject matter eligibility. I’ve certainly made similar efforts for other commenters many, many times in the past.
I’m pretty sure I’d be wasting my time providing that information to you, however.
Maybe just sit down this evening and think about two words: mental process.
Have fun.
Choose your leaders carefully.
Kip, Newman and Rader are bitter clingers to the Rich view – that the division of 101 from 102 was “intended” to alter the law of “101,” even where 101 has remained unchanged in substantially its current form since 1790/1793.
If IBM and/or Chisum, or some other person that compiles a treatise of footnotes, wants to call Benson a failure, so what? They have a business axes to grind. After all, what’s good for IBM is good for IBM, case closed.
Federico divided 102 from 101 to add to 102 the defenses to patent infringement to bring within 102 both “prior art” and the defenses regarding inventorship and prior invention.
Rich in turn made it his mission to channel everything into 102/103 and to ignore 101 as a “requirement” for patentablity, if not a condition for patentability. Under his view, the 101 requirements must be consider separately and before 102/103.
Clearly, the Supreme Court was and is not going to allow Rich’s heresy to succeed no matter how much IBM or Chisum or whoever toots his horn. The rewrite in ’52 was not intended to change the fundamental patent law of the land.
Rich should have recused himself from every case involving construction of the the ’52 Act, because he was clearly not unbiased.
…the man most knowledgeable should remove himself (per Ned)….
(seriously folks – can you BE any more lame?)
Kip: My point was that you don’t need a judicial exception to prevent patents on bare ideas.
Kip, try to understand that the entire thread is visible for everyone to read.
You stated: mathematical algorithms (Benson, Flook, Diehr) and “fundamental economic practices” (Bilski and Alice), as described above. We don’t know what else might be included in “abstract ideas”
That’s nonsense and I called you out on it. As I wrote upthread, all (and any) information is abstract and can not be protected with a patent. Logic is abstract and can’t be protected by a patent. Abstract relationships between people are — wait for it — abstract and can’t be protected by a patent. I will provide a specific example (in case you are confused): correlations are examples of a type of information. They are abstract. They can’t be protected by a patent. This is why the fundamental analytical framework described in Mayo isn’t limited to “laws of nature”, as some commenters like to imagine.
My point was that you don’t need a judicial exception to prevent patents on bare ideas.
And that’s your strawman because I had not argued the contrary (why would I? am I drafting a new set of patent laws from scratch? Nope).
My point (again) is that ineligible abstractions do include information itself, whether that information takes the form of a mental process or a discovered bit of information “manufactured” by carrying out that process.
As I already noted, the application of reason and logic to that non-controversial point gets you to Prometheus and Alice and, as we have been seeing, quite a bit further than that. It’s the proponents of information- and logic-patenting who depend on “judicial exceptions” and who have been relying on “judicial exceptions” for a long time. The problem — the very predictable problem — is that those hastily cobbled and miserably short-sighted”activist” decisions intended to promote the patenting of information-processing logic quickly began eating away at the patent system as a whole. And it’s still happening. As long as it continues, we’ll see more and more reform and that reform will inevitably affect all the stakeholders, even those who aren’t engaging in the lowest form of innovation. You can see where it ends, don’t you?
Well Malcolm, the “the thread is visible” applies to you and your shenanigans as well.
But since you have no sense of shame (leastwise for yourself), that really does not matter, now does it?
MM wrote:
“As I wrote upthread, all (and any) information is abstract”
Actually, from a scientific basis, that is totally false.
You see information is in effect, energy. And energy is ultimately composed of atoms. Even at the sub atomic level, particles as small as neutrinos have mass and can be objectively identified, measured, and physically manipulated. Bottom line, from a science and technology perspective nothing with mass can be abstract, and that includes information. Any questions?
“You can find lots of smart people endorsing that policy.”
What’s their plan to handle the angry villagers that eventually descend upon congress to dismantle the patent system?
The villagers HAVE recourse against those in Congress (vote them out).
You should be more concerned with what angry villagers might do to the Royal Nine.
“The villagers HAVE recourse against those in Congress (vote them out).”
Yes, so what happens to the “smart people”‘s plans when that happens?
“You should be more concerned with what angry villagers might do to the Royal Nine.”
The nice thing about the royal nine is they need not fear the villagers at all. That’s why they’re appointed for life.
You clearly lack appreciation of the literary reference that you yourself initiated.
Rather p@thetic 6.