In 2012 I wrote a short essay on what I called “The Revival of Parker v. Flook” and included the following chart of court citations to the much maligned 1978 decision.
For patentees, the most difficult aspect of the decision is its focus on an “inventive concept” that is separate from any abstract idea. The court explained that “the discovery of such a [natural phenomenon or mathematical formula] cannot support a patent unless there is some other inventive concept in its application.” The Flook decision is closely aligned with Alice and Mayo. The difference is that Alice and Mayo are being followed by lower courts, while Flook was essentially rejected by the Federal Circuit who instead followed a broad interpretation of Diehr and Chakrabarty.
The chart below provides a five-year update.
In response to Ned’s nonsense below:
Ned, a mathematician invents a new chair on the blackboard explaining with static equations why it is better than old chairs. Has he invented a chair?
The “new algorithm” is a method for processing information. That is what it is. What in the world do you think your brain is?
So, of course, he has invented a new machine once the machine is built (either in software or hardware) with the new algorithm.
What is the matter with you? Why do you think that processing information is different than say the grain in Deener? It is not. The same physical laws are at work. It takes time, space, and energy to process the information (represented information). It takes space, time, and energy to represent the information to process.
Same thing as the grain.
And, in Deener, if a mathematician wrote down the method to process grain in Deener, did he/she invent a machine? Well, yes, if they build a machine to perform the process.
What people are not (purposefully) grasping is that every patent – ALL patents – are nothing more than “words on paper.”
Even patents that have claims solely written in “objective physical structure.”
Even patents in the “biochem” area.
Even patents in the “biochem” area with claims solely written in “objective physical structure.”
Basics are being purposefully ignored and obfuscated by the sAmeones here.
Another day at the “O” – nothing more.
I know it is ridiculous anon. I think the more ignorant the judges Obama appointed the easier it is for the antis to get away with this stuff.
the judges Obama appointed
So very serious! “anon”‘s bff, working his magic and totally not tr 0llin’ on behalf of the least credible attorneys who ever walked the earth.
ALL patents – are nothing more than “words on paper.”
Deep deep stuff here.
It’s the (mindless) poker tells of “deep” and “serious” Malcolm (who cannot be bothered to come up with anything remotely “deep” or “serious” for a counter point).
Night, if I understand it right, your “new” chair is more correctly described as a new way of designing a chair, new in that it uses the math on the blackboard.
A claim that confines the scope to any newness in chair, as such, as a manufacture, is not what you want. Once you have performed your new design process, the manufacture of your “new” chair, and the chair itself, would be conventional, I suppose. You want exclusive rights to assert against all those who use your new math, even to make a conventional chair in a conventional way, right?.
In an EPO characterized by claim then, your invention is a method of designing a chair, characterized by the use of (insert the mathematical equations here).
Or have I misunderstood?
Max, I said the static equations illustrate that the chair is better.
So, the blackboard description is a schematic of the chair that includes static equations that could be used in the claim.
(Actually, vacuum cleaners are often designed with equations.)
So? Can you give me an example of an issued US patent with a claim to such an equationed vacuum cleaner?
Not easily without showing you one that I prosecuted. And, then —gasp–you’d know who I am.
I am also getting the feeling we have moved into the distraction stage. I’d like to see you actually address the points of my post.
Lolololololol
Max –
I googled vacuum cleaner equation and this was the second item from the results that I looked at. See, for example, claim 2.
link to patents.google.com
The first item I looked at had equations in the spec, but not in the claims.
Thanks Les. Yes, vacuum cleaners regularly have equations.
Always happy to help the caped crusader keep his cowl.
Please Pardon the Potential (re)Post:
0 h – N 0 e s
BFFs and what not
(in the best Malcolm mindless ad hominem tones)
It takes space, time, and energy to represent the information to process.
Does real estate information take up more or less space than grandma’s most watched video information?
For example, consider 32 versus 23. Which takes up more space?
perhaps salvaged:
Your comment is awaiting moderation.
January 8, 2018 at 7:00 am
“Which takes up more space?”
That’s not the right question – and only shows that you are not “getting” the context of the Night Writer view.
It is NOT an issue (necessarily) of which takes up more space, as the processing method may dictate which takes up more space (as well as other metadata concerns).
The point being though, that space IS taken up for both – as well as time and energy for the representing process.
Maybe if you were not so intent on your ad hominem, you might actually understand the point being presented.
101 is very easy to understand. Just look at structure.
All the anti arguments below amount to some characterization of structure that contributes to the functions of a machine as not being eligible ’cause it is part of some category in the human brain.
And, a new math formula is bad? So, that is like saying well they said there was only a new gear structure or only a new molecule.
All your games are the same. You take a structure of a machine and say it is not patent eligible because it is a witch (or whatever category you assign it to).
Seriously Night, please stop saying nonsense like this. Math itself is not a process within 101 because it does not make a new machine, manufacture or composition. It merely produces a number. (The Flook process produced only a number.)
Math, however, is useful to improve existing machines and processes but it must be claimed in that context. Both Diehr and Alappat are examples.
It is that simple.
You might want to try reading Flook slowly, from front cover to the back page. A lot of the controversy that has taken place over the last 30 to 40 years can be seen as a result of the C.C.P.A. and the Federal Circuit disagreeing with the Supreme Court in Flook. It is clear that they sought to mischaracterize the case by arguing it was one of dissection (considering only the novel subject matter) when it was not. Indeed, some of the loudest shouters in this thread (wake-up Greg) is soon the characterization by the Federal Circuit is a correct characterization.
One of the reasons that case is correct is that it relied on Morse which itself relied on Neilson v. Hartford, the English case that approve the patenting of the hot air blast furnace because the inventor had gone beyond merely stating the principle involved but called for a new machine – placing a heated box between the bellows and the furnace whereby the air might be heated. As explained in Flook, the patent cannot be on the unpatentable subject matter but only on an “inventive” application. Reading between the lines, that inventive application itself must be some improvement in machines, manufactures and compositions and processes related thereto.
>>Math itself is not a process within 101 because it does not make a new machine, manufacture or composition. It merely produces a number. (The Flook process produced only a number.)
See the game? Label structure of a machine as “math” and then declare it as ineligible. It’s a witch!
The only thing being labeled “math” is the math.
And yes we all do see your game, NW.
Software is not math.
Business methods are not math.
The “game” as you put it, is not only seen of Night Writer, but of you, Ned, and anyone else who is anti-patent.
Software is not math.
Business methods are not math.
Either is pumpkin pie, pumpkin.
Do you have a point? I didn’t think so.
Just keep polishing Big Jeans b u tt0ns, “anon.” It’s what you do best. You’re his Steven Miller and he luvs you and your dim lifeless eyes.
“Do you have a point? I didn’t think so.”
Clench tight those eyes so that you can continue to pretend that you are doing something other than purposefully conflating and misrepresenting patent law, Malcolm.
And what is you 0bsess10n with Quinn? He has nothing to do with this blog, this post, or this comment thread. You cannot seem to not think about him in your every waking moment… ( ? ? )
anyone else who is anti-patent.
My gob but you’re a p@ thetic little dweeb. When you jack yourself off on a patent do you take a picture of it and hang it on your wall next to your Luke Skywalker poster?
Stay classy, Dan Diego.
(as if typical, this does not apply to the single biggest blight on these boards: Malcolm)
MM is so old and out of touch that he doesn’t even know that dweebs are jettisoning star wars because his “muh social justice warrior rawr” can fangirl out over it.
Software is not math.
Software is logic and ineligible for patenting as a result.
Business methods are not math.
“Business methods” (so-called) are ineligible for patenting unless they recite a new machine in objective structural terms or result in a detectable physical change in matter previously undescribed as being the result of the recited steps.
Basic stuff. If you advise your clients otherwise, you’re basically just stealing their money. And that is your game, “anon.” It’s the game you and your cohorts love to play because, well, you’re not terribly proficient at anything else.
“Software is logic and ineligible for patenting as a result.”
Eminently wrong. You do not understand what software is if you really believe that.
I have tried to make this simple for you with the reply question of “how is your copyright effort on logic coming along?”.
Since it is well recognized that one can obtain copyright on an aspect of software while one cannot obtain copyright on logic, the difference between the two is not “deep,” and yet is “serious” enough to be real.
As to: ““Business methods” (so-called) are ineligible for patenting unless they recite a new machine in objective structural terms or result in a detectable physical change in matter previously undescribed as being the result of the recited steps.”
Again, you are eminently wrong.
You state the “Machine (in the optional claim format) or Transformation” clue as if that “clue” were more than a clue, and the option as being a requirement.
“Basic stuff. If you advise your clients otherwise, you’re basically just stealing their money”
Basically you are wrong on all planks of your comment here, so your conclusion is baseless and simply in error.
“And that is your game”
The “game” here is all of the trying to clench tight eyes and not see that the scoreboard is broken. The “cohorts” plying their “feelings” and “philosophical ends” while ignoring the means chosen to get to those ends are the ones deserving contempt and derision here.
Night, a mathematician invents a new algorithm on the blackboard at school. Has he invented a new machine?
Ned, a mathematician invents a new chair on the blackboard explaining with static equations why it is better than old chairs. Has he invented a chair?
The “new algorithm” is a method for processing information. That is what it is. What in the world do you think your brain is?
So, of course, he has invented a new machine once the machine is built (either in software or hardware) with the new algorithm.
What is the matter with you? Why do you think that processing information is different than say the grain in Deener? It is not. The same physical laws are at work. It takes time, space, and energy to process the information (represented information). It takes space, time, and energy to represent the information to process.
Same thing as the grain.
And, in Deener, if a mathematician wrote down the method to process grain in Deener, did he/she invent a machine? Well, yes, if they build a machine to perform the process.
“Night, a mathematician invents a new algorithm on the blackboard at school. Has he invented a new machine?”
The continued DIShonesty with this type of posting is remarkable.
Ned,
Show me one single machine – no matter how described in a patent that is different than the machine on that blackboard.
One.
Of course, you will not because you cannot. EVERY machine (no matter how described) in a patent is just “words on a paper.”
Every
Last
One
Stop your dishonesty.
But anon, math does nothing but produce numbers in the mind.
And what exactly is a computer Ned? Both a computer and an information process are machines.
Your argument Ned is that part of a machine can be represented as something a human brain calls math and because it can be represented as math by a human brain that it should not be eligible for patentability.
That is your argument.
What we have here is the attempted Zombification of a re-animated Mental Steps doctrine, but with one critical flaw: machines do NOT think*** (and “proxy,” as Malcolm would advance, is NOT a block to patent eligibility).
Which is why I have to continue to wonder (but not really ) why the academics do not set the record straight by showcasing just how the original doctrine arose (and expired).
*** and yes, this does bring about the opportunity for me to share one of my favorite words: anthropomorphication!
Who said processes had to make items from the other eligible categories?
“Who said processes had to make items from the other eligible categories?”
You mean, beside Ned (and in contradiction to what Congress actually state)…?
One of the reasons that [Flook] is correct is that it relied on Morse which itself relied on Neilson v. Hartford…
Two responses:
(1) I thought that we both agreed that Morse was not really about subject matter eligibility, but was rather better understood as a written description case? Have you changed your mind on that point, or am I just misremembering?
(2) I suppose that there is a sense in which a case can be said to be “correct” merely because it applies a prior precedent in a manner faithful to the intent and outlook of that earlier precedent. In patent law, however, that is a fairly weak sense in which to call a decision “correct.” Patent law has a fairly straightforward teleology—patents exist to encourage discovery, disclosure, and commercialization. The better sense, therefore, in which a case might be said to be “correct” stands where it can be shown that the decision furthers one or more of the ends that patent law exists to advance.
Merely noting that Flook is—along some dimension or other—consistent with Morse or Neilson does not really get at this more important aspect of fundamental consistency with the ends that patents must serve if they are to have any value. As I show in 10.3 below, Flook did not serve those ends at all well (as can be seen in the PTO’s reliance on Flook in their Diehr appeal).
Justice Stevens may well have reached the correct conclusion in Flook, but he got their by an abysmally poor line of reasoning, which, had it been allowed to stand, would have served the nation very poorly. Mercifully, the Court corrected Flook‘s errors in Diehr. Regrettably, the Court was unwilling to own in Diehr that this is what they were doing.
Greg, ultimately one must claim an invention that is a new or improved “manufacture.” The problem with claiming a principle an abstract, even if it is directed to subject matter that is otherwise statutory, is that it does not actually set forth an invention of a new or improved manufacture.
With nonstatutory subject matter such as mathematics and the like, they too are like principles in the abstract in that they are nonstatutory subject matter; but like principles an abstract they too can be applied to improve basic machines and processes. That is how Morse and Neilson provide guidance here.
But Flook was special because introduced the concept that one had to discern first what the novel features of the claim were before one left the 101 analysis, otherwise, as observed by Stevens, one can include in the claim nominal subject matter that was statutory but that was not really part of the invention being neither new nor improved.
Flook was careful also to say that inclusion of unpatentable subject matter in the claim was not a per se violation because there could be invention in the otherwise statutory parts of the claim and the non-statutory part could be applied in inventive application – giving examples such as the Eibel process case. The search was for inventive application of the principal – of the nonstatutory subject matter.
If you take a look at the Neilson case, there is a difference between enablement and claiming in inventive application. There is a good argument that the Neilson specification did not enable the full scope of the claimed invention because the heated box would not actually work efficiently. But what saved it from being a claim in the abstract was that that the inventor did specify a means for carrying out the invention, the heated box between the bellows and the furnace, and claimed it.
The Morse claim also specified nothing of the inventive means or processes that were disclosed. Morse merely claimed a result. Such claims can be viewed as overbroad, but they are also not claiming an invention that is a new or improved manufacture.
Of course by manufacture, I mean manufacture in the sense of the Statute of Monopolies and of 101 that includes methods of making manufactures, and machine processes that provide for an improved machine.
“ultimately one must claim an invention that is a new or improved “manufacture.””
WRONG – that is NOT US law, Ned.
Ned, “the math” you talk about is certainly a process and determines a machine to perform the process.
The math is just like an improved gear combination. It is a component to a machine/process.
How we know that you are the one that is full of nonsense is that an actual machine has the silicon or software to perform “the math” so it has a physical embodiment.
Night, if you have not been listening to me I will say this again: software can improve a machine or an otherwise statutory process.
However, simply reciting that a mathematical algorithm be calculated on a generic computer without more is insufficient for eligibility purposes because the generic computer is not improved.
On this particular point, the result in Alice was a foregone conclusion.
software is not math.
Is stock trading a “useful art” Or are the Fine Arts only what you say they are.
Ballet, Yes, Skateboarding No?
Marty,
I am not cure why you are responding to a “software is not math” comment with a utility (or right type of utility) comment.
Maybe because you cannot be bothered to get the nature of software right (even though that appears to be your livelihood).
That goodness you are not correct. Turns out your don’t even need the computer:
A method comprising:
obtaining sinusoidal signals comprising components of a first time-domain signal;
shifting phases of the sinusoidal signals by amounts corresponding to a specified time-shift to produce phase-shifted signals, wherein shifting the phases is performed to more closely align an envelope of the first time-domain signal with an envelope of a second time-domain signal, and wherein the second time-domain signal comprises a variable power signal; and
converting the phase-shifted signals to time domain signals having the specified time-shift;
wherein the sinusoidal signals comprise a first harmonic and additional harmonics, each additional harmonic corresponding to an integer times a frequency of the first harmonic; and
wherein, for each additional harmonic, a phase-shift corresponds to a phase-shift of the first harmonic times the integer.
link to patents.google.com
Ben: rather than B0(1-F)+PVL(F)+K”, most applicants want, and do not deserve, “determining an updated alarm limit based on a process variable”.
Here’s the question: when does an ineligible and abstract “process variable” turn into a sufficiently “structural” (and therefore eligible) mathematical formula?
And how are these non-structural “structures” evaluated against each other in the context of 102/103? For example, is the “structure” of “X/2” different from the “structure” of “Y/2” or “Y/2.000001”? Why or why not? What about B0(1-F)+PVL(F)+K? Is that “structurally” distinct from “B0(1-F)+PVL(F)+X(K)”? Why or why not? Who gets to decide and what tools do they use? Where is the database of “algorithmic structure”?
A reasonable person who takes the maximalists at face value would assume that the maximalists would be hard at work figuring this stuff out because they’re all about “patent quality”. But reasonable people know better. The miserable failure of the maximalists to even propose, much less implement, anything remotely workable over a time period of 20+ years is all you need to know about their super serious “concerns” about “patent quality.”
“Here’s the question: when does an ineligible and abstract “process variable” turn into a sufficiently “structural” (and therefore eligible) mathematical formula?”
I don’t know. That doesn’t mean a reasonable standard couldn’t or shouldn’t be developed. The patent system should encourage the person who invents an O(n) fourier transform algorithm to disclose their technique rather than hiding it as a trade secret on their backend servers.
The patent system should encourage the person who invents an O(n) fourier transform algorithm to disclose their technique rather than hiding it as a trade secret
LOL
Like those are the only two options.
Your kind of thinking is a big part of the problem. Like Super Serious Kevin N00nan and his scary stories about the cure for childhood cancer that will never ever happen unless we patent correlations. Give us a break already.
I don’t know. That doesn’t mean a reasonable standard couldn’t … be developed.
How long do we need to wait for this “reasonable standard” and how much grift and systemic collapse do we tolerate until then?
Is the structure or mix chemical A with chemical B to get chemical C different than mix chemical D with chemical E to get chemical F?
Or are you saying that methods for making new chemicals should not be patent eligible either?
“Is the structure or mix chemical A with chemical B to get chemical C different than mix chemical D with chemical E to get chemical F?”
That’s not really analogous to his question.
But then again, I think it’s a silly question.
“X/2” vs “Y/2” depends on the context of the claim. It could be a non-distinction, like “1 inch gear” vs. “2.54 cm gear”. It could be a obvious variation, like two distinct but equivalent gear trains. Or it could be be a non-obvious difference. It would be evaluated in the same way as any other claim element.
It would be evaluated in the same way as any other claim element.
Does “magnesium” depend on the “context of the claim”?
Does “circular” depend on the “context of the claim”?
etc
The correct answer is “No, unless you want to wade deep into the metaphysical swamp where ‘arguably’ everything and nothing are equal.”
When you talk about the “structure” of a mathematical equation you’re talking about “structures” that aren’t “structural” at all. They’re more like sentences but even more abstract. They’re pictographic representations of relationships between symbols.
It’s difficult enough to deal with claim construction and the like when we’re talking about structures that are objectively physical and describable in those terms. Now you want to introduce a huge class of abstractions into the system? Guess what’s going to happen. Oh wait! We don’t have to guess. We know what’s going to happen: the system melts down and “inventing” turns into the lowest common denominator, i.e., pure scrivening. That’s because there is literally nothing easier than innovating an abstraction or new information or “new” logic (where “new” logic is old logic in a “new” context, i.e., old logic described using words that haven’t been used before).
It’s weird that this even needs to be explained, here of all places. Normal people don’t have trouble with this. Certain patent lawyers do and its because many of them can not get the kool-aid out of their system.
The world and scientific progress really does not revolve around us or our clients and we should be grateful for that. Also just because you’re rich and know how to program a computer doesn’t mean that you know what you’re talking about when it comes to other subjects and it doesn’t mean that anybody needs to pay attention to you. That’s not directed at you, Ben. It’s definitely directed at these smug Silly Con Valley cl0 wns (young and old) who I run into and who really are about as shallow, dull and uninteresting as a human can get.
Ben and MM, I want to zoom in on Ben’s word “non-obvious” and talk about context.
Lots of times, human creativity comes up with something “non-obvious”. The punch line of a good new joke, for example.
But not everything that is “non-obvious” renders claimed subject matter patentable.
As the Patents Clause says, the context is the “useful arts”, and their practitioners. As Ned points out, it all goes back the “manner of new manufacture” of the English Statute of Monopolies.
What is or is not obvious in the context of practising accountancy, the law, logic/math or joke-writing is not relevant to patentability, and it is not serving the interests of the law, or our profession as officers of the court, to pretend that it is. It is dangerous to bring the patent system into disrepute with the public.
You check out the “bringing disrepute above by your “cohort.”
I will now reveal myself as fervently pro-patent. Patents really do promote progress in the useful arts and so make the economy richer. I’m all in favour of them.
All those new, useful and non-obvious utterances of accountants, joke-writers, logicians, philosophers and mathematicians; however commendable they might be, however much they enrich our society, they are not progress steps within the useful arts and so ought not to be rewarded under the patent statute.
As the EPO has found out over the last 40 years, the simplest and most effective way to prevent zealous advocates nudging patent rights beyond the useful arts is to use the obviousness filter, requiring as a condition of patentability an inventive step (ie “progress”) that is to be found within the territory of the useful arts. In other words, technical features in combination solving a technical problem in a non-obvious way.
To grant patents for progress outside the useful arts is un-Constitutional. Not only that, it impedes (with restraints on trade) useful economic activity, competition and growth. Not only that, it brings the patent system into disrepute. All this harms the economy, and so will damage the general welfare. The consequence of that will be a legislative (and perhaps also a judicial) backlash against the patent system. Now nobody here wants that, do they?
Several time snow you have pretended that the EPO deals with “Useful Arts.”
We both know why that is.
Twice now, you have attempted to slip by “accountants” and the like.
YOU are not talking about “Useful Arts” as you use that term.
Instead, you are talking about what you are familiar with – some notion of “technical arts.”
The US Sovereign has chosen differently, MaxDrei.
Please have the respect for our Sovereign’s different choice.
“shallow, dull and uninteresting as a human can get.”
Another way for a leftist to say that the person being spoken about has 0 victim points.
Fashion trends do change. But history will show that the trend of patenting logic and information was less like 70s fashion trends and more like a moment in time when a certain portion of the patent community thought it was fashionable to wear giant diapers and never change them.
I, for one, enjoy the super-high waistband.
I don’t enjoy the same old problem on this site that once a good discussion gets going, and points are made,they are all lost to the next thread, so we have to start all over again.
So my question for the brain trust, stipulating (where we last left it) that information was patent eligible as a manufacture and information processing as a process:
What, if any, limitations should there be on patenting new and useful information, or improvements of existing information?
I do not think that your restatement here accurately reflects “where we last left it.”
As I noted on the other thread, the notion of “information” in Night Writer’s “information processing” is at a more subtle point than the “common take” being made as to “information.” See especially the clarification to MaxDrei and his lovely reference to Magritte.
yea well how about explaining at least the outlines of the “subtle point”?
PS, “subtle points” and major public policy are not happy handmaidens.
perhaps salvaged:
Your comment is awaiting moderation.
January 5, 2018 at 7:44 am
Marty,
You cannot even understand the nature of software (which your livelihood is connected with), and you want me to hold your hand at a higher level physics/meta-physics discussion?
Apply yourself first to the basics and get those right. Let me see that you actually understand that which you want to climb atop a soapbox and pontificate upon.
“information” <— in quotes, LOL
Notice the effort to make sure that nobody can discern what "anon" considers to be the subject matter of the discussion. That way "anon" can move his goalpost freely. Very clever!
the notion of “information” in Night Writer’s “information processing” is at a more subtle point than the “common take” being made as to “information.”
Yummy word salad.
Says the guy who MOST moved goalposts….
Stultifying.
What, if any, limitations should there be on patenting new and useful information, or improvements of existing information?
An absolute bar, without exceptions.
In other words, the common sense solution to a problem that was created by chucking common sense into the t 0 i let.
That’s my first choice too MM.
But if that’s not tenable because just too many people believe in the magic of computers, then what?