Short Fiction for IP Attorneys

I enjoyed SciFi author Kim Stanley Robinson’s new short essay Oral Arguments.

Quoting precedent is not usually characterized as sarcasm, Your Honor. The patent law is broadly written, and your decisions concerning it haven’t helped to narrow or clarify it. Some people call that body of precedent kind of ad hoc-ish and confusing, not to say small-minded. Whatever keeps business going best seems to be the main principle, but the situation is tricky. It’s like you’ve been playing Twister and by now you’ve tied yourselves into all kinds of contortions. Cirque du Soleil may come knocking any day now . . .

Greg Aharonian identifies the story as both “utterly hilarious” and “utterly sad.”


53 thoughts on “Short Fiction for IP Attorneys

  1. 10

    Don’t know. I find “funnier” the “fiction” that the first person who claims a CD has a patent eligible structure under 101, yet the second person who claims that same CD (no matter how much structure) with a program stored on it, well, it’s not a question of novelty or obviousness, that same CD is now no longer a physical, claimable structure–instead, now it’s abstract (really, this disk in my hand, with the program stored on it, it’s abstract???).

    Truth, especially when it’s fiction, is indeed stranger than fiction identified as such.

    1. 10.1

      As I pointed out while debunking one of Malcolm’s favorite canards, ALL software could be written in claims that are hundreds of pages long, detailing every “objective physical structure,” and cover EXACTLY the same “gee, this is abstract” thing covered by claims TODAY – and today’s claims being well understood by Persons Having Ordinary Skill In The Art.

      And yet, all we see is the same claptrap C R P drive-by monologue short script “arguments” repeated ad infinitum, ad nausem, in a blatant propaganda attempt based solely on Malcolm’s “feelings” and desire to outlaw software on a per se basis.

      1. 10.2.1

        Why is it so hard to understand that “invention” is the claim mas a whole, and that your canard of “Point of Novelty” did not survive the Act of 1952?

      2. 10.2.2

        And Ned, please – for all of your “why is it so hard” misdirection, why is it so hard for you to accept what my simple set theory explanation gave to you as to the exceptions (remember those?) to the judicial doctrine of printed matter.

        Need I remind you of measuring cups and magic hat bands?



            Don’t be an arse.

            When I provided the explication on the Hricik side of the blog, I invited you and Ned to join me in a dialogue.

            You both ran away.

            Even so, on this side soon after I provided direct hyperlinks and again invited you and Ned to join me in a dialogue.

            You both ran away.

            So don’t play the “gee, why don’t you repeat it (again)” game. That game f001s no one.

      3. 10.2.3

        Why is it so hard to understand that invention has to be in eligible subject matter?

        Because if the resident patent worshippers “understood” that they’d have to actually get a life.

    2. 10.3

      “logic please” that same CD is now no longer a physical, claimable structure–instead, now it’s abstract

      That’s not the analysis.

      Nice try, though. “anon” loved it so at least you’ll get your buttons polished today.

      1. 10.3.1

        That’s not the analysis

        Translation: “anon is absolutely correct, but I Malcolm have no intelligent thing to reply with, so I will make an asinine comment about ‘button polishing.'”

        Let me refresh your memory Malcolm: As I pointed out while debunking one of Malcolm’s favorite canards, ALL software could be written in claims that are hundreds of pages long, detailing every “objective physical structure,” and cover EXACTLY the same “gee, this is abstract” thing covered by claims TODAY – and today’s claims being well understood by Persons Having Ordinary Skill In The Art.


          However, it’s possible to have two machines that implement the same algorithm but have zero physical components in common, because they run on completely different designs of computers, so that long list of physical features wouldn’t capture all implementations of the algorithm unless it was so excessively generic – using fasteners made of atoms, etc – that it also covered all other machinery.


            Exactness in physical structure has never been a requirement.

            Why even look at chemical patents that feature “a range”

            Clearly, “a range” indicates more than one non-identical structure.


              Hardly comparable. Those patents allow for variation within a range, whether stated explicitly or merely implied, but what is being proposed is considerably more than that.

              If the patent is to cover all possible implementations of a particular algorithm, without being so overbroad as to cover sowing machines, cars, and ovens, it must either exhaustively describe all possible implementations of the algorithm, a practical impossibility, or it just describe the one thing all those implementations have in common: that they are implementations, which is an abstract property.

              Basically, if you try and patent an algorithm by describing its physical implementation, either there will be potential implementations you’ve not described, or your description will cover machines that don’t implement the algorithm, neither of which alternatives is desirable.



                It is expressly comparable to the point that I present.

                A range simply is NOT a single “objective physical structure.”

                Not sure why you want to get all “hand wavy,” about the plain fact of the matter.

                As to what is “desirable,” well, I have a hint of what your view is and I kindly pass.

                1. Stating that some attribute lies within a given range is a description of objective physical structure. The attribute can be measured independently of the rest of the machine, and is not remotely abstract.

                  The situation with machinery running algorithms is not comparable. You can’t determine whether the machinery is indeed running the algorithm by examining its nuts and bolts, but only by seeing what it does.

                  A practical example may help. The algorithm for multiplication can be implemented by electronics, or by a purely mechanical device, two rather different approaches.

                  There’s quite a difference between saying the concentration of some chemical must be 3%, plus or minus 0.2%, and saying the device must either contain cogs assembled according to a given blueprint or a chip of specified design.

                  Describing the latter case as merely variation within a range would be a rather creative use of the language.

                2. Read again “Robert,” what I wrote (hint: single)

                  If in fact not single, then in fact not single objective physical structure.

                  With a range you either do not know (and do not possess) the actual single objective physical structure OR you want a patent on more than one single physical objective structure, which is (analogous per each different art unit) what a Person Having Ordinary Skill In The Art may recognize as a sign of climbing the ladder of abstraction.

                  As for algorithms, I am not sure why you are getting hung up and you are – again, in fact – absolutely wrong about “different approaches” insofar as for patent purposes, software is equivalent to hardware (and equivalent to firmware).

                  You seek differences when in truth, none exists. Not ones that survive the important “In The Art aspect of patent law.

                  Maybe you want to broaden your understanding beyond one (particular) art field…?

                3. Anon: “With a range you either do not know (and do not possess) the actual single objective physical structure OR you want a patent on more than one single physical objective structure, which is (analogous per each different art unit) what a Person Having Ordinary Skill In The Art may recognize as a sign of climbing the ladder of abstraction.”

                  The second alternative is the case here, and my claim is simply that this shows we’ve climbed someway up the ladder of abstraction, as you have just acknowledged.

                  Anon: “for patent purposes, software is equivalent to hardware (and equivalent to firmware).”

                  As the law currently stands, yes. I’m not convinced that is reasonable, because it means the same patent can cover both an assemblage of cogs and a silicon chip, despite the vast physical differences between them.

                  Note, I agree that the common claim that software is pure maths is flatly wrong. Software can be described mathematically, but so can many other things we might want to patent. Being describable mathematically isn’t the same as actually being maths.

                  My basic problem with software patents is that they mostly don’t actually contribute to the art of software design. Those that aren’t obvious to a person having ordinary skill in the art seldom disclose enough information to allow such a person to implement the patent.

                4. Robert,

                  Thank you for taking the time to explicate your concerns.

                  I do “get” where you are coming from, but hasten to add that your “desired end state” is simply more than what the law provides for.

                  I think that you are making a “special” distinction for software just because software is “different” than what you may be familiar with in the chemical arts, and that you might have a “it’s too easy” view masquerading under the legal banner of obviousness. You also might be confused betwixt the legal nature of patents and what is actually required (patents are NOT technical documents to the extent that you might be looking for).

                  My immediate point here though holds, and it should be noted that the ladders of abstraction are used THROUGHOUT ALL of the Arts. Do not be confused by the word itself “abstraction” – as the phrase here is not the same as the word alone as terms of art.

                  You seek out TOO much of a physical identity when NO SUCH exactness is – or was – required under patent law. I think if you were to understand the Deener case and the larger doctrine of equivalents, then you would recognize that what I say is true (and not true because it is I that says it – eppur si muove and all)

  2. 9

    There’s a well-known short story, ‘Lifeline’, by Heinlein which also raises IP issues. Someone invents a new technology which will badly affect the life insurance companies, so they sue to prevent its use.

    The court ruling in that story is often quoted by people demanding copyright reform, and could arguably also apply to the patent bar:

    “There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary public interest. This strange doctrine is not supported by statute nor common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back, for their private benefit. “

    1. 7.1

      It’s less a shot by Crouch, and more an acknowledgement that the Supreme’s have created for themselves the ability to be shot AT.

      This is captured in the line: “Quoting precedent is not usually characterized as sarcasm, Your Honor.

  3. 6

    My favorite science fiction writer is the federal judiciary and their serial fiction work that patents are abstract and invalid for claiming non-patentable subject matter.

  4. 5

    Okay, so it starts with a mediocre seed for a sci-fi story, and then devolves into personal political axe-grinding by the author. And as a backdrop, you have a supposed attorney arguing for who-knows-what at the Supreme Court without delving into any matter of law whatsoever.

    Seems almost like Robinson skimmed the oral arguments from one randomly selected case, read some headlines about Bilski, and decided he was an expert on both patent law and the Supreme Court.

      1. 5.1.1

        Hahaha – it’s not an anti-patent screed, so Malcolm cannot even get through the short story.

        Way too funny.


          Why do you assume a differentiation? I think Malcom got about as far in this story as he gets in everything else he reads.

          Like Greg A., I found the story both funny and sad.


            Atari Man,

            I do not assume a differentiation, and in fact post to highlight the lack of one.

            Anything anti-patent or adverse to a patent holder and Malcolm is all into it and broadcasts it.

            Anything that calls into question the questionable means to the Ends he desires, and he is unwilling (unable?) to even “get through it.”

            It is not a differentiation- it is a consistently that should be alarming in its self-admitted bias.

    1. 5.2


      Lighten up. Humor about Bilski et al. means we have arrived. This may not be a new thought but, I construe this to mean that obviously our artificial day under the sun is coming soon.

  5. 4

    My current favorite sci-fi writer is Lois McMaster Bujold, 5-time Hugo Award winner and author of the Vorkosigan saga, a great sci-fi series.

    1. 4.1

      EG, great. She seems to have stopped after Captain Vorpatril’s Alliance. Of all the stories, I think I like Borders of Infinity the best. Miles, as Admiral Naismith, infiltrates a POW camp and … Well you have to read it to believe it.

      Also excellent is James S.A. Corey of the Expanse series — that is going to start on the Sci-Fi channel this Monday. Can’t wait for the next edition. Jim Holden is a great character. James T. Kirk II but even better.

      But, Hamilton’s stories are something. Pandora’s Star/Judas Unchained totaling 2000 pages; ditto the Void series. Simply masterpieces.

      Toss Robinson, unless you really like nonsense and the beauties of anarchism.


          It’s called Gentleman Jole and the Red Queen.

          It’s good, but the viewpoint character is Oliver Jole, and the blurb does a horrid job confusing the plot. Its another one that’s focused on character relationships rather than a big plot. Not for all tastes, although I liked it.

      1. 4.1.2


        My favorite of Bujold’s is still The Warrior’s Apprentice: love the Dendarii Free Mercenaries with Admiral Naismith at the helm.

    2. 4.2

      Rather partial to…

      Active authors, Sci-Fi :

      David Weber, Mike Sheppard, Elizabeth Moon, Louis McMaster Bujold

      Less Active or Departed authors, Sci-Fi

      Isaac Asimov, Robert Heinlein, Anne McCaffrey, Ursela K LeGuin, Larry Niven, Frederick Pohl, William Gibson, H Beam Piper

      Special mentions to : Terry Pratchet (RIP), David Eddings, Jim Butcher and Robert Aspirin (RIP) & Jody Lynn Nye

      1. 4.2.1

        MDT, thanks for the list.

        I am familiar with all of the authors listed in your less active list, but only with Lois McMaster Bujold, who is simply great, in your currently active list. I look forward to exploring the other authors in your list.


          No problem. Just avoid ‘Out of the Dark’ by Weber. It’s an early story he did, and he pulled an ex machina in it. Blech.


            Out of the Dark was more recent actually. And its problem was it worked as a short story, so people wanted a full book.

            David Weber has multiple on going series:

            The big one is the Honor Harrington stories, which starts off as Horatio Hornblower in SPACE, but grows. The universe was pretty solidly built (David Weber has built several RPG backstories), so it’s expanded. The first novel or two are rougher than later novels. Legions of novels, as he opens it up to other authors and focuses on someone other than his main character. There’s now 4 different spin off series.

            Safehold is an interesting one that’s set on a single planet, dealing with a colony hidden to protect it from genocidal aliens. The founders war and end up creating an elaborate religious system to keep their descendants safe. But the solution has holes, and the losers had a back up plan. Suffers from David Weber’s sudden legal guardianship causing him to stretch out the planned series into more novels so he can pay for his orphaned niece and nephew’s college.

            The Orfressa Cycle, includes fewer books as its more fantasy than SF. David Weber considers it his masterwork in progress. The first few novels are intended to be hobbit like backstory for the series starting in earnest with ‘Sword of the South’. Not bad, but early to say.

            Multiverse: finally getting its third book. Deals with a war between parallel universes, one using magic, one using psionics/ early industrial tech. Apparently eventually a pure high tech faction will show up.

            There’s more in other works, like the prince roger books, and star fire, but those have less of his style, and are co-written.

  6. 3

    While I share Robinson’s opinion that Supreme Court has been vague in its 101 jurisprudence leading to a lot of uncertainty in the patent law, I do not share Greg’s opinion that “Kim Stanley Robinson is one of science fiction’s greatest writers. ” One can tolerate Robinson’s books only if you like nonsense and the glorification of anarchy.

    For a great SF writer, I recommend Peter F. Hamilton.

    1. 3.1


      If you think that the gist of the story is about “glorification of anarchy” you quite miss the point that the story is blaming the Supreme Court for its part to that anarchy.

      As in real life, your inability to understand that the Royal Nine are not themselves above the law shines through in your lack of understanding a key point of the short story.

      1. 3.1.1

        No, anon, I was wading through his Martian trilogy when his nonsensical story line and love of anarchism because too much. Trashed the lot.


          Ah I see Ned – I was talking only about the immediate story and you were talking about something not present.

          In that case, nevermind.

  7. 2

    This reminded me of William Gaddis’ “A Frolic of His Own”

    “Justice? You get justice in the next world. In this world you have the law.”

  8. 1

    …and utterly on point (for example, no one has yet truly squared the rulings of the Supreme Court on 101 – the Prometheus dependence on the case most on point, and which Prometheus states it is not changing, but also with which it is in direct conflict.

    The Court has attempted to scriven a body of cases, from which, depending on the direction that the wind is blowing, the Court can reach in and take snippets to mash together a position to support its own desired policy.

    What is the analogy? Referee? Umpire? There certainly is a George Carlin punchline to it. (I’d share it, but my George Carlin jokes have been censored in the past).

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