Guest Post by Benjamin C. Stasa, Shareholder, Brooks Kushman PC, Southfield, Michigan and David C. Berry, Director, Patent Procurement Clinic, Wayne State University Law School, Detroit, Michigan
The U.S. Supreme Court decisions in Alice[1] and Mayo[2], and subsequent attempts to apply those decisions, continue to create some uncertainty in the availability of patent protection for certain technical fields. Although recent guidance has somewhat clarified the issue, eligibility questions continue to vex practitioners, and reflect an all-or-nothing approach to patentability. As a result, commentators and national intellectual property law associations have proposed amending 35 U.S.C. §101. These proposals range from eliminating § 101[3] to amending the Patent Act to codify a broader definition of eligible subject matter.[4]
We offer an alternative approach for amending § 101 to allow some range of patentability for inventions directed to judicially-recognized eligibility exceptions. Rather than attempting to redefine the line between eligible and ineligible subject matter (a revision that preserves the current all-or-nothing approach), we propose amending §101 to implement disclosure-based limits on the scope of claims directed to judicially-recognized exceptions (abstract ideas, laws of nature, and natural phenomena).
Section 112(f) as a Model
Preemption is a common concern raised in eligibility cases. For example, claims directed to a law of nature should not be so broad as to preempt subsequent attempts by other researchers to develop other applications exploiting the law of nature. But preemption concerns may be addressed adequately by disclosure-based limits on claim scope, rather than by precluding patentability in toto. Furthermore, the Patent Act already contains a workable model for disclosure-based limits on claim scope: 35 U.S.C. §112(f).
Currently, if an applicant opts to rely on functional claim language, the claims are limited by the content of the applicant’s disclosure under § 112(f). Borrowing the same approach to limit claims directed to abstract ideas, laws of nature, or natural phenomena, § 101 could be adapted to prevent an applicant from claiming a judicially-recognized exception per se, while permitting claims essentially limited to specific embodiments disclosed in the specification.
Proposed Amendment to Section 101
101. Inventions patentable
(a) Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to subsection (b) and the conditions and requirements of this title.
(b) A claim directed to a judicially-recognized exception to subsection (a) hereof shall be construed to cover the structures, materials, or acts described in the specification and equivalents thereof.
Application
Under § 101 as amended, an examiner that considers a claim to be directed to a judicially-recognized exception would identify it as being subject to § 101(b) and point out the corresponding specific structures or processes disclosed in the specification to be covered by the claims, if any. The applicant could then attempt to refute the § 101(b) characterization through amendment or argument, or both, as is common practice under the current § 101 scheme. Alternatively, the applicant could acquiesce to the examiner’s characterization and possibly identify additional specific structures or processes disclosed in the specification to be covered by the claims. So limited, the claim would be eligible under § 101(b), and the disclosure would delimit claim scope for patentability and infringement.
Advantages
This proposed amendment would not affect an application for a process, machine, manufacture, or composition of matter that is not directed to a judicially-recognized exception to eligibility. On the other hand, claims directed to a law of nature or other judicially-recognized exception per se (claims without a corresponding disclosure of a specific working embodiment) would be indefinite under § 112(b) and thus not be patentable. The proposal improves predictability during patent prosecution, since most eligibility concerns will result in narrower claim scope, rather than the prospect of across-the-board ineligibility. Additionally, this proposed amendment preserves the central role of § 101 in governing eligibility, applies consistently across all fields of invention, and can be efficiently managed by the examining corps since they are already familiar with the operation of § 112(f).
Conclusion
The evolving nature of technology makes eligible/ineligible line-drawing difficult. Rather than just focusing on that boundary, attention can be directed to the consequences of stepping over that line. The proposed amendment of § 101 would clarify the scope of claims directed to a judicially-recognized exception, rather than simply rejecting those claims as wholly unpatentable.
– – – – –
[1] Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014).
[2] Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. ___, 132 S. Ct. 1289 (2012).
[3] See https://www.law360.com/articles/783604/kappos-calls-for-abolition-of-section-101-of-patent-act.
[4] See http://admin.aipla.org/resources2/reports/2017AIPLADirect/Documents/AIPLA%20Report%20on%20101%20Reform-5-12-17.pdf (AIPLA proposal); https://www.americanbar.org/content/dam/aba/administrative/intellectual_property_law/advocacy/advocacy-20170328-comments.authcheckdam.pdf (ABA IPL Section proposal).
…the “new” editorial control for the “do not have a dialogue” count filter put the kabosh on this thread…
I was on committees that looked at this in detail over years. I think the AIPLA and IPO proposals are 95% there (I have a few quibbles with words, but they’re on track substantively), and the ABA approach is fine too.
There are two problems with the Stasa/Berry approach.
1. You can’t tell what the claim means by looking at it. Under pre-Bilski law, s 101 was amenable to resolution by study of the claims, and the law put the burden to applicants to know the law, and draft claims of predictable effect.. Bilski upset that, and this goes even further. What’s “equivalent?” Imagine a claim construction rule that said “Start with the claim, then subtract out prior art, and your patent covers what’s left.” That would be a nightmare in subsequent litigation. The Stasa/Berry approach isn’t as bad as this imaginary proposal, but it’s headed that direction.
2. Another problem is that in order to find a valid construction, you end up with a claim that’s “hollowed out” and largely incapable of infringement.
The ABA proposal is pretty good — it’s striking that it seems to be (at least intended) to be substantively identical to the AIPLA and IPO proposals. It’s a pity that ABA didn’t try to harmonize with AIPLA and IPO — throwing another contestant into the ring will delay resolution among the three groups.
>>(b) A claim directed to a judicially-recognized exception to subsection (a) hereof shall be construed to cover the structures, materials, or acts described in the specification and equivalents thereof.
Really? You think that is OK? A nebulous test for “judicially-recognized exception” puts you into Alice-land where the punishment is having claims so limited as to most likely be worthless rather than being invalidated.
This is really bad.
Really? You think that is OK?
Mr. Boundy can speak for himself, but I read his #17 as saying that he does not favor the proposed text in the original post (“There are two problems with the Stasa/Berry approach,” emphasis added).
This is nowhere near the AIPLA proposal for 101. Not even in the same ballpark. This is a the ballpark of the burn down the patent system by making things up ballpark.
What is the difference between a doctor sitting there and looking at a test result and determining a level of a drug to inject into a patient and a metallurgist sitting there in front of a cauldron mixing metals and determining which and how much of different metals to drop into the cauldron?
I would say none.
Again, down below this comment there endless attempts at removing what a person skilled in the art knows for the enablement requirement. Just ridiculous. Please. Stop.
If you produce a new function, you require a new structure to produce that function. A claim to the novel function absent a limitation to the structure is overbroad of the invention and violates 112a. A claim to a novel function where the specification does not disclose the structure for achieving it fails 112b. A claim to the function is a claim to a field, and violates 101 absent significantly more limitations. Limiting the claim to a particular means solves these issues, but not all particularly-claimed inventions are eligible. No amount of particularity would have saved, e.g., the Mayo claims.
LOL at the people on this thread still arguing that just because you can use functional language outside of means plus that that functional language in per se valid in all circumstances – notably with respect to novelty.
Nobody invents a projectile firing machine. A person can only invent a bow. Disclosure of a bow does not support a claim to a projectile firing machine, because that scope includes the as-yet-undiscovered gun, which is substantially different from a bow, and which the inventor has not proved possession of. Because machines that fire projectiles is a field, a claim to it violates 101 unless there are significant limitations (for example, the structural limitations of a bow). There is no mechanism by which a claim to a novel functional result will be upheld unless the specification proves it discloses all of the disparate means for performing the functionality, which as a general rule is unprovable.
This isn’t a hard concept, the Supremes expressly put out just such logic in Morse in the context of a machine that “prints at a distance.” It’s pretty clear why they were afraid of Morse’s claim, because since Morse we’ve developed several machines that print at a distance that are nothing like Morse’s machine. Neither the invention of 112f nor any other jurisprudence limits the logic of the Morse case or its parentage. You can’t distinguish your invention from the prior art by reference to the result of using it, you have to distinguish it by what it actually is.
“If you produce a new function, you require a new structure to produce that function. ”
Hardly. Where do you come up with this stuff?
Read MCRO, BASCOM, and so forth. In MCRO new animation rules applied to a technical problem using only a general purpose computing device were held eligible. Old processor configured to produce a new function is eligible if the new function is an improvement in a technical art or solves a technical problem.
I agree that Random’s first sentence is a weak start. As it happens, however, nothing else in his #15 rests on a premise established in that first sentence, and the rest of it holds up pretty well in my estimation.
If by “holds up” you mean that it is held up by the “Ends justify the Means” internally eternally self-conflicted flotsam and jetsam of the Supreme Court writing their own version of the law, then maybe I could agree with you.
Of course, this means opposite of the normal use of the term “holds up,” as in, “is sustained under critical scrutiny” (which it does not).
I agree that Random’s first sentence is a weak start.
Can you name me one thing that performs a different function absent different structure? The whole point of the quid disclosure is that the disclosed structure will produce the useful effect.
Absent extreme situations like quantum dynamics, performing A + B in context C will always yield D. If you don’t get D, it’s because you changed A, B or C. That’s how the world works.
Here’s a quote from General Electric: The Circuit Court of Appeals below suggested that “in view of the difficulty, if not impossibility, of describing adequately a number of microscopic and heterogeneous shapes of crystals, it may be that Pacz made the best disclosure possible, . . .” But Congress requires, for the protection of the public, that the inventor set out a definite limitation of his patent; that condition must be satisfied before the monopoly is granted. The difficulty of making adequate description may have some bearing on the sufficiency of the description attempted, but it cannot justify a claim describing nothing new except perhaps in functional terms. It may be doubted whether one who discovers or invents a product he knows to be new will ever find it impossible to describe some aspect of its novelty.
That’s not a flippant statement that the Supreme Court threw in for funsies. If a new result is achieved, it is because some sort of structural change took place, and in all likelihood it is possible to convey that structure. Functions don’t arise out the aether like magic, they are called by a structural formation: Compress a spring, it’s stored energy can be converted; Operate a lever, the opposing side moves. Use of functional language is simply an attempt to expand the monopoly beyond the structural change by claiming other structures which achieve a similar result, without any proof as to whether any of those structures were posited.
I’m aware of no situation outside of quantum dynamics where a function cannot be described by a knowable, and conveyable, structure change.
Can you name me one thing that performs a different function absent different structure?
Aspirin for analgesia and aspirin for anticoagulation. Same structure (2-acetylbenzoic acid), two different functions.
I’m aware of no situation outside of quantum dynamics where a function cannot be described by a knowable, and conveyable, structure…
Sure. I agree. U.S. patent law has always insisted—and rightly so—that an invention be both described and claimed in structural terms for patent purposes. This encourages the advance of the art by leaving open the possibility of designing around a claim.
Same structure (2-acetylbenzoic acid), two different functions.
Your structure is incomplete. The analgesia function is combination of the 2-acetylbenzoic acid structure and what I assume is a nerve structure, while the anticoagulation function is a combination of the 2-acetylbenzoic acid structure and what I assume is a blood cell structure.
This is common sense – aspirin sitting in the bottle neither makes you feel less pain nor affects your clotting. That’s true even if you put the bottle really close to your body. You have to introduce the medicine to the different structures of your body in order for it to have an effect(s). A system that comprises the 2-acetylbenzoic acid Aspirin performs absolutely no function absent other limitations.
Common sense? Alas, look to what is claimed (there are no nerve and blood systems claimed)
Oops.
Fair enough. I withdraw the “weak start.” As I said, I agree with the rest of #15, so I stand behind everything else I said in #15.1.1.
It’s a terrible example and does not address the points made. All capabilities/uses of a drug are inherent unless it’s being used in a way that is non-obvious. A processor configured to perform a telecommunications protocol is different in terms of function than the exact same processor configured to perform homomorphic encryption method. Same hardware, completely diffferent functions.
“Same hardware” does not capture ALL of the differences in the computing system – all of the components of that system.
Push comes to shove, those who are anti-software patent continue to operate in a dissembling manner because they are not being inte11ectually honest about what software is.
The entire discussion here is a bit of a smokescreen with the underlying premise that ONLY “objective physical structure” can “save” a patent claim.
This elevated the optional claim format into something that it is not: a NON-optional claim format.
Right from the start, the anti-software proponents have engaged in a fallacy.
Same hardware, completely different functions.
Whoa, there. There are structural differences between a processor running a telecommunications protocol and a processor running a homomorphic encryption. The processor, after all, is not thinking different thoughts. Rather, its various switches are being flipped (structure!) by structures on the physical software medium. There is, in other words, definitely a different structure responsible for the different function in this particular example.
(My apologies if my embarrassingly rudimentary understanding of computer science is reflected in factual errors above, but I hope that this is broadly accurate in material respects.)
Greg, I also thought of the aspirin as analgesic/anti-coagulant example. But note that Random’s original first sentence stated “new” function. Was it ever “new” after people started taking aspirin for their headaches, that its function as anti-coagulant was ever “new”?
Perhaps we need to distinguish what is “new” from what remains “novel” under the patent law? Perhaps Random would agree that stuff can still be patentably novel even when it is nothing “new” in an absolute physical sciences context?
New use of an old thing? The EPO case EXXON “fuel additive” case is interesting. The use of the particular fuel additive in the claim, as a corrosion inhibitor, was known, old. The contribution to the art was its use as a lubricant. Nobody knew it did that, till the inventor demonstrated that valuable effect. It took a petition to the highest level (Enlarged Board of Appeal) to get the claim approved. It gave rise to an entire branch of the claim drafting arts, namely “use claiming”.
MaxDrei hints at inherency of function (new use being a discovered one, rather than an invented one – cf the shortcut at 35 USC 100(a)).
He misses though with his usual EPO myopia, and oddly celebrates that it took a petition to the highest level to recognize what Congress did in our sovereign in the Act of 1952 (see 35 USC 100(b)).
Perhaps we need to distinguish what is “new” from what remains “novel” under the patent law?
Like the late Ned Heller, I definitely believe that it is necessary to distinguish “new” from “novel.” For better or worse, however, that is a distinctly minority viewpoint among my fellow patent lawyers, and runs flatly against what little case law exists on the point.
new animation rules applied to a technical problem using only a general purpose computing device were held eligible. Old processor configured to produce a new function is eligible if the new function is an improvement in a technical art or solves a technical problem.
But “old processor configured to produce a new function” is indefinite absent disclosure of a structure that performs the function, and is undescribed absent some rationale that the full scope of the function is defined. You’re limiting my argument to 101 when I begin by talking about the other standards.
I just got through explaining to you a few posts back that you can’t say that “skill in the art” is sufficient to support novel functionality. The specification must describe, and the rule limiting that requirement is that the specification need not describe that which is well-known in the art.
You “explained” nothing. It’s you who can’t seem to understand that the Fed Ct has time and time again explained that the structure of a functional feature can include disclosure in the form of mathematical formula, prose, or as a flow chart or signal diagram and other similar examples. Any requirement for new structure is errant. A standard processor disclosed is sufficient, assuming the functionality is described as well.
He does not want to understand the “sufficiency” aspect that is NOT tied to the optional claim format of “objective physical structure.”
This is nothing more than his quaffing of the dissembling from Malcolm that has long been allowed to run rampant here: an optional claim format being treated as if somehow it is NOT optional.
>>A claim to the novel function absent a limitation to the structure is overbroad of the invention and violates 112a.
Random, you have to include known solutions and the new combination from the claim.
Just outrageous that you repeat the same stuff over and over and just ignore what one skilled in the art would know.
Just outrageous that you repeat the same stuff over and over and just ignore what one skilled in the art would know.
I said “a claim to the NOVEL function”…
Just outrageous that you repeat the same stuff over and over and just ignore what one skilled in the art would know.
I just had to teach Bluto this a while ago, but knowledge of skill in the art cannot be used as a substitute for a disclosure. 112 requires THE SPECIFICATION to enable and describe the invention, and the rule that you need not teach is limited to what is already well-known in the art.
Random,
The specification need only enable the invention to one skilled in the art.
It does have to describe the invention, but again to one skilled in the art.
All those known solutions to problems are included in the specification.
All those known solutions to problems are included in the specification.
But the enablement and description must be commensurate with the scope of the claim. If I claim a novel function, and describe 1 or 10 or 100 ways of achieving the function, that only fulfills 112a if there are only 1 or 10 or 100 ways of achieving the function. If there are, in fact, 10,000 distinct manners of achieving the function, the fact I disclosed 100 doesn’t support 112a. 112a is only supported when the number of distinct disclosures I made equals the number of distinct ways of achieving the function.
As a general rule, you never know what the number of distinct ways of achieving the function is, so as a general rule you’ll never meet the 112a standard.
I can disclose a bow, a crossbow, a catapault, a trebuchet, a long bow and a compound bow, and I might be able to argue I’ve disclosed a lot of manners for my allegedly novel function “a machine that fires a projectile” so I should be given that scope. But unless I can disprove that there is some other distinct means, I haven’t enabled or described the full scope of a claim. Because a gun is also a machine that fires a projectile, and is distinct from all the means disclosed in the specification (indeed, it’s super distinct, because you only disclosed embodiments that rely upon string tension rather than chemical explosion) the claim fails 112a. The fact that the applicant fails to disprove the possible existence of the gun means the claim to the function fails, as it should, because if the scope that included the gun was granted, research into the gun would be chilled.
Functional language is an attempt by someone who invented the bow (a very good and useful invention, for which the inventor should be appropriately rewarded) to aggrandize themselves into also being the inventor of the gun, when there’s no proof he posited the mechanism that causes the gun to work at all. The inventor of the bow should be given rights to the bow, and the inventor of the gun should be given rights to the gun, and neither of them invented the scope of “a machine that fires a projectile” because the last word on machines that fire a projectile has not been written yet.
That’s not an anti-patent stance, it’s just a stance that both A and B get their due, rather than indulging in A pretending to be something he isn’t.
Patent maximalist: “But my projectile is a data projectile! And the data is about your credit card account. That changes everything right?”
Judge Lourie and Judge Newman: “We think so but it changes everything but we are very confused and would like someone to hold our hands while we utter f 0 0 lish things that make our rich friends happy.”
“that make our rich friends happy.””
More of the typical class w a r fare dissembling from Malcolm as he seeks to denigrate the form of innovation MOST accessible to the non-wealthy…
Random <<>you have to distinguish it by what it actually is.
And in the case of information processing that is how the information is processed and what functions are preformed.
Random, you don’t really get it. You seem to want a turtles all the way down argument. To be clear–you put that new function there and if it is enabled then it defines a structure. You guys seem to have something like mouse that runs around in your head. Just bizarre. I could build a special purpose chip to perform the function. I could write code in a 100 different languages and with many different types of processors to perform the function. All structure.
And, again, Random, it is like that is not enough for you. The turtle, however, is sitting squarely on solid Earth.
Plus, Random, your there aren’t enough turtles argument is one that is supposed to an enablement argument based on a person skilled in the art.
I can build special purpose processors (yes I am skilled in the art of EE/CS) based on these functional disclosures.
What is going on here is anti-patent judicial activists are basically 1ying. They are intentionally misrepresenting the test for enablement and the scope of claims.
It does not seem to me that this proposal would help a lot with software patents, because the structure is the algorithm, and the examiner likely to ask for some other structure that is not really important to the invention, which may not be there.
the structure is the algorithm
ROTFLMAO
Combining Alice-Mayo and Williamson? What an ugly mess. Williamson is over-relied on as a “silver bullet” in software-related cases by just about every defendant. No matter how detailed the processing steps in the actual claim language may be, they will characterize every claim as “functional.” So every software 101 issue will devolve to a debate about this new “101(b)” nonsense. Kill it before it spreads!
No matter how detailed the processing steps in the actual claim language may be, they will characterize every claim as “functional.”
And they’ll be correct.
That’s your problem.
That’s a feature – not a bug.
(But your feelings are noted)
David Stein >>>My point is that nobody is ringing alarm bells over the use of purely functional, non-112(f) language in the mechanical arts – because it’s not controversial. I can easily produce similar examples in the chemical or electrical arts – again, not controversial. It’s only in the software arts that people say: “Oh no, functional language, the patent system is borken!”
This is exactly right. And I have posted text books for information processing that expressly say that functional language is used to capture known solutions that are too numerous to enumerate.
And yet the ignorance fest continues where we get academics pushing positions that are contrary to what is known in the art.
Smells of Google Bucks.
It’s only in the software arts that people say: “Oh no, functional language, the patent system is borken!”
That’s because it’s “only in the software arts” where you can claim a “new” computer functionally without any recitation of novel objective physical structure, either in the claim directly or indirectly using “means + f” language.
That “exception” is based on the activist assertion that “data is the essence of electronic structure”, a phrase that fell gracelessly out of a CAFC judge’s infinitely stretched bungh0le.
Again, MM, you go to the position that it is possible to have new function without new structure. Function without structure is your argument.
Nice try. The issue is not whether you can have “new function without new structure” (and of course you can — people find new uses for old things all the time). The issue is whether you can patent a new structure without describing the new structure. The answer to that question is pretty obvious unless you are high on patent crack.
Also: this has been explained to you probably a thousand times. That’s why you’re a h@ ck and also representative of the larger problem with the patent maximalists generally.
“The issue is whether you can patent a new structure without describing the new structure.”
No one is saying anything different.
Oh wait, you want to elevate a particular optional claim format for doing so into something that is not – you know – an option…
Explained a thousand times you say…
(maybe you should not spend so much time “explaining” when your “explaining” is nothing more than dissembling)
And, MM, that structure is claimed when a person of ordinary skill in the art is included in the interpretation of the claims.
Probably no structure when you are talking about a CAFC judge with no science training and who caries a wet warm towel back to their chambers to decide these issues.
Again, the game is to leave out one skilled in the art. Just ridiculous.
the game is to leave out one skilled in the art.
Which “art” is that? The “art” of typing instructions into a computer?
Or the “art” of telling your friend that you’re waiting at a coffee shop?
“The “art” of typing instructions into a computer?”
How is typing instructions any different from mixing chemicals?
The better question is whether Malcolm wants to admit that he knows and understand the controlling law when it comes to the exceptions to the judicial doctrine of printed matter.
And even better – why his prior admission to this fact is an admission against his interests (and widdle feelings).
Congress should not be writing statutes that say “Here’s what should be patentable, but we acknowledge that the courts can override our statute with judicially created doctrines.”
Why not?
Heck, I know the answer, and I think that you know the answer – however, many (apparently) do NOT know the answer.
If you had to boil it down to one word, it would be “Constitution”
Please unpack that a little bit.
(Hey, I have several points that would flow from that boiled down word, so I am not disagreeing with you, but like I said: many (apparently) do NOT know the answer, so your one word boil down is not going to help those who most need it!)
Yup
Wholehearted agreement with the sentiment, but the proposed statute is worse than that.
“Can” override? The proposed statute would be an *express* authorization for the courts to create new law.
This would be (so far as I can tell) an unprecedented abdication by Congress of its constitutional obligation to enact laws.
Modify S 100(b): “A process which results in information consumed by human beings may not be patented. Processes intended to improve information processing without regard to the content or meaning of the processed information are exempt from this requirement”.
ALL processes can result in information that may be consumed by human beings.
Please stop your nonsense Marty.
Bite me. All processes to do not result in information. Many have a chemical or mechanical result.
Things are coming around toward my view- see recent printed matter doctrine etc.
I neither agree nor disagree with your bigger point here, Martin, but chemical and mechanical results are information. They may not be merely information, but they are information.
Marty has yet to grasp the patent law concept of utility (and how – in the end – ALL utility is merely a “result in information that may be consumed by human beings.”
Humans, after all, ARE the metric of utility.
Greg that’s not the meaning in either the vernacular or the technical community. If you want patents on intangible things, you need to have some boundary or connection to objective reality (unlike anon of course).
If you want to debate the tangibility of bits in memory, that’s just fine, but it leads nowhere useful to solve the current problems.
Also anon, no, not Collins. See Praxair Distribution, Inc. v. Mallinckrodt Hospital Products IP LTD., 2018 U.S. App. (Fed. Cir. 2018)
[T]hat’s not the meaning in either the vernacular or the technical community.
I am not sure which “technical community” you have in mind (there are more than one, after all), but I assure you that chemists do indeed perceive and rely on the information content of molecular structures, and are even using the transitions of structures to process information.
If you want patents on intangible things, you need to have some boundary or connection to objective reality (unlike anon of course).
Agreed as to some boundary. You, of course, are not merely advocating for some boundary, but more particularly for one specific boundary. I confess that I just do not understand the contours of the debate in which you are advancing your preferred boundary, so I can neither agree nor disagree with your proposal. Smarter folks than me (yourself, for example) will have to sort out the answer to that question.
Ah yes, the maligned case that is being criticized for its butchering of the concept…
Celebrating a broken scoreboard will not fix the broken scoreboard.
chemical and mechanical results are information
LOL
Keep pulling at that thread, Greg.
“– see recent printed matter doctrine etc.”
LOL – Do you mean the recent abomination attempt by Collins that was widely – and justly – ridiculed?
If by “Things are coming around toward my view” you mean that vested interests are plying ridiculous propaganda to warp (and weaken) patent law, then yes, “things are coming toward your view” – and have been (as I have noted) for more than fifty years of such inane attacks.
At bottom, the anti-software patent stance remains an anti-patent stance.
Do you mean the recent abomination attempt by Collins that was widely – and justly – ridiculed?
It must be fun to live in “anon”‘s fact-free universe.
Of course, that fact-free universe would explain why “anon” is wrong about pretty much every important question, all the time. And will continue to be wrong.
more (and typical) Accuse Others from Malcolm…
Fact free? Try having the “magic” that you want to have as noted above by Night Writer.
Or maybe you want to try – you know – actually engaging on the merits and in reality, a reality of a universe wherein optional claim formats are just that: optional, and wherein software is not magic…
Benjamin C. Stasa, Shareholder, Brooks Kushman PC, Southfield, Michigan and David C. Berry, Director, Patent Procurement Clinic, Wayne State University Law School, Detroit, Michigan
Shouldn’t Rudy Guiliani be named here as well?
LOL
For more laughs, read David Stein’s comment below. David has trouble distinguishing the legal issues raised by a claim to a new “braking means” which is limited to objectively understood and defined novel physical structures versus a “computer implemented method of breaking” which protects logic and isn’t limited to any novel structure. One of these types of claims will necessarily corrode the patent system and create a free for all for b0ttom feeders and speculators and the other won’t. But David can’t figure this out. He can’t figure it out even though the issues have been spelled out for him numerous times.
Here’s the deal, folks: it’s a one way ratchet. There is no “swinging back of the pendulum” because nobody except a very very tiny well-heeled population of eternally unsatisfied greedy whiners wants it.