37 thoughts on “Exhausted by Selling a Service?

  1. On a (slightly) different angle (of the first two panels)…

    Not only does exhaustion open the door for “doing whatever one wants with the bought robot,”– and that’s a good thing — but since the US sovereign has structured its patent laws as it has (vis a vis 35 USC 101: or any new and useful improvement thereof), we (the royal We) actively seek to reward the promotion of inventions that other people may have started (and whose baseline may yet still be under protection for them).

    Something that the anti-software patent folks never seem to be able to wrap their heads around (this of course is reflected in the House fallacy – improvements to a machine are not only reflected in the type of improvements that KnowBuddy IS willing to recognize, but also in those “mere configuration changes” that differentiate machines as demonstrated in the Grand Hall experiment run oh so long ago on these very pages)…

    That a machine is built to be reconfigurable simply does not mean that all future reconfigurations are inherently present in the initial machine.

    The reality of the Grand Hall experiment is that the first machine without software does not have the present capability of the second machine configured with software.

    One simply cannot “just use” that which has not been changed with the act of configuring with the software. Ned always skips this point, and it appears that KnowBuddy wants to skip this point as well.

    To reflect on another analogy: three resistors sitting apart are just not the same as three resistors sitting hooked up in series and are just not the same as three resistors sitting hooked up in parallel.

    Machines built to be reconfigurable surely are “meant to be reconfigured” — but it is a pure logical fallacy to take that notion of “meant to be reconfigured” to be some “rule” against the baseline eligibility of any actual future reconfigurations that are brought about by the inventive actions of others (this is reflective of the Morse portion).

    The put-down of the Big Box of Protons, Neutrons, and Electrons reflects this wayward “meant to be reconfigured” nonsense. Inspired by the Star Trek replicator, a big box of the basic (classic physics) particles “meaning to be reconfigured” literally contains ALL future possibilities of anything of matter that could ever be made. With such a Big Box – and by the logic being attempted – literally ALL compositions of matter become not only “obvious,” but ineligible.

    The most humorous part of this though is that those who are anti-patent continue to employ the same “logic” even after having the put-down explained to them in simple and direct English sentences that even a child could understand.

    And certain sAme ones continue to add vapid and baseless ad hominem as if that ad hominem somehow substitutes for a meaningful (and inte11ectually honest) rebuttal with anything even remotely resembling facts or a cogent legal position.

  2. Just by being reconfigurable, Robo makes obvious ALL future reconfigurations.

    In that way, he’s a lot like the Big Box of protons, neutrons and electrons.

    .

    Robo needs a companion himself. How about a House/Morse?

    😉

    1. I am always looking to add new characters to the strip. But I am not familiar with “House/Morse.” I even googled it, but it is simply coming up with houses. Any explanation would be appreciated.

      1. Maybe he meant Mouse/Horse.

      2. David,

        Running joke here on this blog, concerned with certain anti-patent 101 fallacies.

        The “House” portion comes from a television show of that name, in which a crotchety old doctor disdains computer inventions and believes that only the very first computer should receive protection, and that all “uses” of the computer are (somehow) inherently “already in there.”

        The “Morse” portion comes from the famous patent case, in which the “all future uses” was claimed (but sh0t down). What the anti-patent people seem to be unable to recognize is that the “House” view is directly contradicted by the “Morse” view.

        To put it plainly, the patent laws are present to provide protection to all improvements of a machine – even improvements as featured in the machine component of software.

        The antagonists seem to be unable to recognize and apply the patent doctrine of inherency in their attempts to “fold into” the very first computer ALL future improvements by way of software.

        It’s as if ALL software that could ever be written – and any improvements that come from such software – are “already in there,” and like Morse attempted, and like House would suggest, no such innovation deserves patent protection (separate from the first computer).

        As for “characters,” “Morse” morphs into a mouse, such that a house mouse may be easily envisioned.

        1. software … written

          Gotta love it when the truth leaks out. Yes, software is written instructions describing logic that will be carried out a by a pre-existing (in fact, very old) computing machine that exists for that very purpose, i.e., to carry out logic according to instructions written for such a machine.

          The antagonists seem to be unable to recognize and apply the patent doctrine of inherency

          It only seems that way to you because you believe that writing instructions and logic are eligible for patenting. But they’re not.

          [shrugs]

          1. Malcolm

            You seem (not sure why) hung up again on a manufacture being “of writing.”

            I explained this to you in direct and very easy to understand Set Theory terms way back when, and actively sought your interaction so that you could understand.

            You don’t want to go there, and yet you want to persist in acting like there is some great “secret” and “truth leaking out,” when the actual truth is merely that innovation simply takes a different form than that which you “feel” should be protected.

            The definition that applies to manufactures – in the patent sense – covers software just as much as it covers any other type of machine component, any other type of “ware” that any persona having ordinary skill in the art easily recognizes.

            You [shrug] and want to pretend otherwise, but that is just your feelings coming through.

            Nothing more.

        2. Thanks for your explanation. A mouse named Norse. I like it! We’ll bring him/her on board in one of the strips.

          Of course, it is unclear at the moment how we will introduce Morse. One difficulty with doing comic strips related to patent law is that the topics are esoteric by necessity, and ideas for jokes are a bit harder to come by.

          1. LOL – you can bring him about in a dream sequence – let him pop out of the dream and smack another character (similar to Itchy and Scratchy) with a computer, and then defend himself by saying that the Supreme Court says that he is innocent, because the computer is merely “abstract.”

            1. Alice (the character introduced in the first IP Musings strip published by Patently-O) probably would make a good foil to Morse.

        3. To put it plainly, the patent laws are present to provide protection to all improvements of a machine – even improvements as featured in the machine component of software.

          That’s fair. But you have to distinguish between improvement of the machine and application of the machine.

          Software that improves the way computers operate should be patent eligible. Better memory management, more efficient storage access, better networking, faster context switching – these are things that improve the operation of the computer. They make anything the computer does run faster, better, more efficient – or whatever other property you’re improving upon.

          Rote application of software/computers to an existing field should not be patent eligible. A system for serving ads based on a user lookup. Associating financial transactions with a user id to perform a credit check. Storing user preferences in a database. These are not improvements of the machine. These are simple uses of the machine, the things it was designed to do. Data storage, association, and lookup are rote activities to any PHOSITA since the dawn of computing. It’s what computers and software are designed to do. They are not technical solutions to technical problems, to borrow a phrase from another legal regime. They are insignificant post-solution activity. They do not create a new and useful machine, manufacture, or process.

          It’s like a shovel. Whoever invented the first shovel can get a patent on it. It’s a tool for digging. People can use it to dig all kinds of holes. For houses, for gardens, for mailboxes, for sewer pipes, the possibilities are endless. Each use of a shovel for a new kind of hole is not eligible for patent protection. It’s not a new use. It’s using it for the purpose it was intended: digging holes.

          Computers are the same. Improving the operation of computers and networks is a patent-eligible improvement of the machine. Applying computers and networks to a particular field is not an improvement and it’s not a new use. It’s simply using a device as intended.

          1. But you have to distinguish between improvement of the machine and application of the machine

            Software is not the execution of software.

            Distinguishing complete.

            It’s what computers and software are designed to do.

            Sounds like you are falling for the Bog Box of Protons, Neutrons and Electrons line of “logic.” You are taking a far too “general” “it’s already in there” view. Specifically different configurations do (or to put it properly, when executed, “do”) different things. Those different things – differently “designed” are simply NOT “already in there.” Yes, computers and software can be designed to “do” all types of new things, or even old things in a new way, and ALL of that is what the patent system IS meant to protect.

            Your analogy of a shovel needs to be compared and contrasted with the House portion of the analogy (above), and the fallacies of that House view brought home to you (in other words, you are acting like Dr. House, and acting in a pure fallacy).

            It’s simply using a device as intended.

            But ONLY the improved device that has been changed with its own configuration. That’s rather an important distinction.
            .

            As to “simple uses of a machine,” you may want to try reading 35 USC 100(b) and noting that uses of a machine (simple or otherwise) fall into a statutory category, so I your animus against protecting any such innovation through patents is not ground in a proper understanding of patents or patent law.

            1. “But you have to distinguish between improvement of the machine and application of the machine”

              A further note on the fallacy embedded in this statement: application of the machine cannot occur until the initial machine is changed and configured with the new software.

              This is a physical fact, and it is a fact often attempted to be glossed over.

              Awhile back on these boards there was a thought experiment run that to this day stands true. It was called the Grand Hall experiment. In that experiment, the contrast between two otherwise identical machines was made stark and clear. Machines that have not been altered and that have not been reconfigured simply cannot run software that comprises a machine component in and of itself.

              Further, there have been other discussions highlighting the plain fact that “wares” are design choices for the computing arts, and no one has shown otherwise. Sure, you have the unusual dissemblers attempting to kick up dust, but the plain fact of the matter remains that for the patent world, the notion of equivalency suffices to reflect that innovation in the computing arts properly includes software innovation as patent eligible.

              I have yet to see a cogent, inte11ectually honest, and legally meaningful position as to why this should not be so.

          2. “Software that improves the way computers operate should be patent eligible. Better memory management, more efficient storage access, better networking, faster context switching – these are things that improve the operation of the computer. They make anything the computer does run faster, better, more efficient – or whatever other property you’re improving upon.”

            But wait a minute. The first PCs didn’t network at all. Was adding networking an improvement or merely an rote application?

            The first PCs didn’t do Spread Sheets. Was adding spread sheeting an improvement or merely a rote application?

            The first PCs didn’t do Spell Checking. Was adding spread sheeting an improvement or merely a rote application?

            Up until recently PCs didn’t do voice recognition. Was adding voice recognition an improvement or merely a rote application?

            Who decides what is part of “the way computers operate” and what is an application? Much a feature be ubiquitous for it to be part of “the way computers operate” or can it be a feature of half the market? For how long must it be prevalent for it to be part of “the way computers operate.”

            …. and if someone comes up with a way to use a shovel to calculate the all the digits of pi, or to use a shovel as a plow, those would be a new use of a known machine…

            1. You’re falling into the trap of most non-programmers. You have no idea how computers work and what’s easy or hard to do in software.

              Networking is indeed a new ability over standalone computers. That makes it an improvement to the machine. They can do things they couldn’t before: namely, exchange data with other computers. Networking required hardware and software advances to implement that are not obvious or inherent to the abilities of a computing device.

              Spreadsheet applications are an easy problem. They take manpower, but that’s it. Storing, moving, arranging data in tables and columns is as old as writing itself. Spreadsheets use the ability of computers to remove the drudgery and do things quicker. It’s just an application of the inherent features of a computer.

              Spell check is a trivial problem. Compare input to a dictionary and flag inconsistencies. Simple application of computing power.

              Voice recognition is likewise a new ability. There’s nothing inherent in digital circuits for data processing that would allow them to parse and recognize human speech. That takes serious signal processing and complex new algorithms requiring heavy duty research. This is definitely an improvement.

              While voice recognition itself is a new ability, once it exists applying it to particular applications is not. Implementing a telephone customer service menu with existing voice recognition technology is nothing new. It’s an application of the technology, combined with simple data lookups that computers are designed to do.

              These are simple questions. Anyone familiar with how computers operate can distinguish these examples in a snap. I’m sure there are some difficult edge cases out there where the decisions are harder. But most software patents floating around out there, including the ones courts have struck down, are simple cases that fall squarely in the “routine application of existing technology” bucket.

              Anon falls into the trap of saying new software creates a “new machine”. No it doesn’t. That’s a poor legal fiction and vast oversimplification. Patent attorneys have used it for years to justify bad software claims. Courts are onto that game and striking them down. It’s nonsense. It’s the same machine it was before, just configured in a slightly different but entirely standard and expected way.

              1. First of all, I was probably programming computers, microprocessors and micro0-controllers before you were born.

                Second of all, the difficulty of a task is not a factor in whether it is new or an improvement.

                If you agree that software that adds a voice recognition feature improves the way computers operate and should be patent eligible, then spread sheet and word processor features are also improvements to how a basic computer operates and are also eligible.

                Whether they are novel or obvious or not are other questions.

                1. I was probably programming computers, microprocessors and micro0-controllers before you were born.

                  I was programming 10 years after I was born.

                  It’s called “writing logic instructions for a machine that applies logic to data.”

                  It’s not technology and it doesn’t belong in the patent system. Never did.

                2. “I was programming 10 years after I was born.

                  It’s called “writing logic instructions for a machine that applies logic to data.”

                  It’s not technology and it doesn’t belong in the patent system. Never did.”

                  I was building machines with erector set components 8 years after I was born. What bearing does that have on whether machines are technology?

                  Of course logic instructions for a machine that applies logic to data are technology. Your assertions are just silly.

                  LOL

              2. It’s just an application of the inherent features of a computer.

                You sound like Dr. House again. he problem you have of course is that your view simply does not accord with reality or with patent law. Your “just an application” is enough to change from a given machine to a different machine (in the patent sense). CLEARLY, if you understood the patent doctrine of inherency, you would understand that your first machine, sans the “just an application,” does not give you that change from the “just the application.”

                Big Box of Protons, Neutrons and Electrons, KnowBuddy… Everything is “just an application” of those three items in the Big Box. Your attempt at “logic” here is directly equivalent to making anything that can be configured from those three groups of items not patent eligible.

                What could be more simple than protons, neutrons and electrons, and yet, configurations of such abound (and are rightfully protected).

                Your statement of “the same machine it was before, just configured in a slightly different but entirely standard and expected way.” is utter nonsense for what you intent that statement to convey (i.e., a patent law).

                Trap…?

                That is not me falling there KnowBuddy.

                Here’s a simple reminder:

                Take six identical resistors and divide them into two groups of three.

                For the first group, hook them in series.

                For the second group, hook them in parallel.

                For your view, there is no difference. Reality says otherwise.

                1. “anon” has been reminded on numerous occasions that his beloved logic claims do not recite a novel “configuration” of anything in terms other than functional terms.

                  The silly “analogy” to the claiming of chemical compositions falls apart right there.

                  And, unfortunately for “anon” and his b0 tt0m -feeding c0horts in the logic patenting game, that’s his best argument!

                  LOLOLOLOLOLOLOLOLOLOLOLOLOL

                2. do not recite a novel “configuration” of anything in terms other than functional terms.

                  And Malcolm has been equally reminded that he seeks a fallacy of having an optional claim form somehow be NOT optional.

                  Come whine when you have an actual legal position that is stronger than your mere feelings Malcolm.

              3. You’re falling into the trap of most non-programmers. You have no idea how computers work and what’s easy or hard to do in software.

                First, as Les captures, you are falling into the trap of thinking that “easy” or “hard to do” has any bearing whatsoever on patent eligibility.

                The triviality (or not) does not change the factual nature that reconfiguring means a change in the machine. As I demonstrated with the rather trivial change in the two sets of three resistors, even trivial changes and the smallest of reconfiguations may carry undeniable changes in physicality.

                Second, you are falling into the trap of thinking that any lemming movement of programmers have ANY insight into patent law. You have drunk far too deeply of the spew served to you at such places as slashdot and techdirt and the like.

              4. “Anon falls into the trap of saying new software creates a “new machine”. No it doesn’t. That’s a poor legal fiction and vast oversimplification. Patent attorneys have used it for years to justify bad software claims. Courts are onto that game and striking them down. It’s nonsense. It’s the same machine it was before, just configured in a slightly different but entirely standard and expected way.”

                Every time you bang on a drum or play a xylophone you create a new music making machine! Every time you watch a TV station you created a new TV! Every time you run your tongue over your dentures you create new dentures!

                1. Nice try 6 – your “analogies” of course fail when you apply the patent doctrine of inherency (as exemplified by the Grand Hall experiment, which as I recall, you failed most infamously at).

          3. “It’s like a shovel. Whoever invented the first shovel can get a patent on it. It’s a tool for digging. People can use it to dig all kinds of holes. For houses, for gardens, for mailboxes, for sewer pipes, the possibilities are endless. Each use of a shovel for a new kind of hole is not eligible for patent protection. It’s not a new use. It’s using it for the purpose it was intended: digging holes.”

            24. A method of using a shovel having a frame and a shovel blade pivotably movable relative to the frame about a pivot axis that is not perpendicular to a forward direction of travel of the shovel, the method comprising:
            leaning the frame towards the left or right direction and moving the shovel in a forward direction, to thereby dynamically pivot the shovel blade about the pivot axis towards the same left or right direction in which the frame is leaning; and
            maintaining the shovel blade pivoted to the left or right direction without locking the shovel blade, by application of a force to the shovel blade that is generated as the shovel continues to move in the forward direction with the frame leaning.

            US8001707B2

            link to patents.google.com

          4. Know buddy, back in the day, before Mercoid, people would patent an old combination with one part improved and sue for contributory infringement those selling the old part for use with the combination.

            An analogy today would be the patenting of the programmed computer and suing computer makers for selling to people who would be using those computers with the new program.

            After all, according to what we hear, any program improves the computer making the programmed computer a new machine.

          5. A system for serving ads based on a user lookup.

            “But these ads are served to people looking for the best beach within 500 miles! That’s totally different.” <— actual argument made by educated adults

            1. Not nearly as some of your own “arguments” that you continue to trot out as if the counter points were not made to them like a thousand times….

              But your short script of “adult” and “grown up” while you act the opposite is merely the poker tell that you have nothing meaningful or inte11ectually honest to say on that actual topic.

              11 years now of the same Malcolm blight…

          6. KnowBuddy: Whoever invented the first shovel can get a patent on it. It’s a tool for digging. People can use it to dig all kinds of holes. For houses, for gardens, for mailboxes, for sewer pipes, the possibilities are endless. Each use of a shovel for a new kind of hole is not eligible for patent protection. It’s not a new use. It’s using it for the purpose it was intended: digging holes.

            This is so plainly obvious and true that there is no chance of it ever being addressed directly by “anon” or Les who will simply tr r0ll you endlessly.

            Also, rest assured, if there was money to be made writing and prosecuting patents on methods of digging a hole with an old shovel, wherein the hole is here or there or some other “new” place (or an old place described with clever scrivening), then “anon” and Les would do backflips defending that, too. They’re pretty easy people to understand. Simple minds.

            1. Address directly?

              The analogy is a fail and we both know why. Hint: Alappat.

              Second hint: Simple Set Theory explication of the exceptions to the judicial doctrine of printed matter.

              Rather than Les or anon “not addressing the topic directly,” the rather plain and evident truth is that YOU refuse to address the topic directly and in any sense of inte11ectual honesty.

              Same old same old from Malcolm.

              1. Hint: Alappat is dead, and if you tried relying on it at the PTAB or CAFC, you would be laughed out of the room.

                Which set do obsolete court cases go in?

            2. “This is so plainly obvious and true that there is no chance of it ever being addressed directly by “anon” or Les who will simply tr r0ll you endlessly.”

              I directly addressed it, twice. Once at 1.1.2.3.2 and once at 1.1.2.3.3.

              1. Don’t worry Les, Malcolm is simply being Malcolm and accusing you (and I) of that which he does.

                11 years of this sAme blight…

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