by Dennis Crouch
Section 101 has some magic to it. The short provision has remained essentially unchanged since it was originally handwritten in the 1700s and signed into law by President George Washington.
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 the conditions and requirements of this title.
35 U.S.C. 101. But the courts have taken the general provision and given it substantial meaning beyond the text.
Senator Tillis has introduced legislation that would re-write Section 101 — taking back authority from the courts and detailing the scope of eligibility as broadly extending to technology-based innovation. Because the Supreme Court’s interpretation of Section 101 is largely atextual, the proposed amendment does not change the core text cited above. Rather, the Bill adds detail in the form of “eligibility exclusions” and notes that the broad provisions of Section 101 are subject “only to” the statutory exclusions.” In his press release, Senator Tillis indicates that the proposal “is the product of almost four years of consensus driven stakeholder conversations from all interested parties.”
Unfortunately, due to a series of Supreme Court decisions, patent eligibility law in the United States has become confused, constricted, and unclear in recent years. This has led to inconsistent case decisions, uncertainty in innovation and investment communities, and unpredictable business outcomes. This has resulted in a wide range of well-documented negative impacts.
Tillis. The Bill does not include a statement about whether its impact would be retroactive to apply to already issued patents and pending applications. If it is retroactive, the legislation would have an immediate impact on many thousands of of patents and pending applications.
The Bill lists four particular eligibility exclusions that would be codified within a new Section 101(b)(1). In particular, the statute would deny patent protection “for any of the following, if claimed as such:”
(A) A mathematical formula, apart from a useful invention or discovery.
(B) A process that— (i) is a non-technological economic, financial, business, social, cultural, or artistic process; (ii) is a mental process performed solely in the human mind; or (iii) occurs in nature wholly independent of, and prior to, any human activity.
(C) An unmodified human gene, as that gene exists in the human body.
(D) An unmodified natural material, as that material exists in nature.
These four exclusions are the only exceptions to Section 101’s broad text. The provision goes on with additional “CONDITIONS” that endeavor to ensure that the exclusions are narrowly read:
(2) CONDITIONS.—
(A) CERTAIN PROCESSES.—Notwithstanding paragraph (1)(B)(i), a person may obtain a patent for a claimed invention that is a process described in such provision if that process is embodied in a machine or manufacture, unless that machine or manufacture is recited in a patent claim without integrating, beyond merely storing and executing, the steps of the
process that the machine or manufacture perform.‘(B) HUMAN GENES AND NATURAL MATERIALS. … a human gene or natural material that is isolated, purified, enriched, or otherwise altered by human activity, or that is otherwise employed in a useful invention or discovery, shall not be considered to be unmodified [i.e., is patentable].
The Bill would also add a process for determining whether or not an invention is eligible.
(c) ELIGIBILITY.—
(1) IN GENERAL.—In determining whether, under this section, a claimed invention is eligible for a patent, eligibility shall be determined—
(A) by considering the claimed invention as a whole and without discounting or disregarding any claim element; and
(B) without regard to—(i) the manner in which the claimed invention was made; (ii) whether a claim element is known, conventional, routine, or naturally occurring; (iii) the state of the applicable art, as of the date on which the claimed invention is invented; or (iv) any other consideration in section 102, 103, or 112.
The proposed amendment makes clear that invalidity via eligibility is still potentially available via motion to dismiss.
Finally, the provision also modifies and adds definitions to Section 100 of the Patent Act:
(b) [Amended] The term “process” means process, art or method, and includes a new use, application, or method of manufacture of a known or naturally occurring process, machine, manufacture, composition of matter, or material.
(k) [New] The term ‘useful’ means, with respect to an invention or discovery, that the invention or discovery has a specific and practical utility from the perspective of a person of ordinary skill in the art to which the invention or discovery pertains.
Read the legislation yourself here.
As all the below comments . . . and all those above . . . make abundantly clear . . . the only solution to the eligibility morass is the removal of Section 101.
The only solution.
You know another thing about this too that is just offensive is that information processing patents are the majority of patent applications.
But this legislation does not even address the issue of software/information processing directly. How can that make any sense?
How about telling us whether the last 1,000 sets of claims in federal court would be eligible under this statute? 1,000 sets of claims invalidated at the PTO? All the claims in the CAFC current set of precedential and non-precedential cases?
look again – such ARE addressed (and they would be NOT eligibile).
Such are not addressed directly anon.
If you mean “explicitly,” I would agree — but one needs NOT “explicitly” to see that the ‘issue’ IS addressed.
Hence my use of the term, “Trojan Horse.”
In that historical analogy, the “explicit” presentation had not worked, but certainly, Troy FELL as enemy troops addressed Troy’s defenses.
But this legislation does not even address the issue of software/information processing directly. How can that make any sense?
No Sheet Sherlock
Just lobby to add a provision:
(X) As used in this title the word “article” includes articles comprising storage media containing machine instructions.
As a final note, any legislation should look at the last 1,000 sets of claims asserted in federal court, 1,000 sets of claims invalidated at the PTO, and 1,000 sets of claims IPR’ed, and answer the question of whether the set of claims would be eligible under this statute.
This statutory language is total garbage. It isn’t clear what “non-technological” means and what things like “social” mean. Or “business” mean. Is software that runs the doors of a bank “business”?
Completely agree with your last paragraph (note that I have pushed back against Wt, who is normally of acccord, with the use of the term, “Fintech”).
A great example here would be encryption.
Clearly, the most famous advance in encryption IS applied math, and it is just as equally clear that encryption’s most extensive use is pure business.
Does ANY rationale person really want encryption to be beyond the protection of the innovation protection system of patents?
Yes it seems to make all applied math ineligible.
This proposed legislation is horrendously bad. A Lemley we t dream.
>>>(i) is a non-technological economic, financial, business, social, cultural, or artistic process;
This could wipe out a huge percentage of software. Unless “non-technical” was construed to mean a process not performed by a machine. Also, it is so odd that people call a process “a business method” when it carried out on a machine. The whole point is that the information processing is changing the entire characteristics in how people perform the following: “economic, financial, business, social, cultural, or artistic process”.
So would this exclude an AI program to produce music?
A social process to monitor people’s behavior and suggest changes to improve their productivity and health?
This sounds like it is the technical requirement in Europe.
And don’t believe many stakeholders signed up to this.
This sounds like Lemley’s dream amendment to exclude all software.
>>(A) A mathematical formula, apart from a useful invention or discovery.
This is horrendously bad as well. The problem is what is a mathematical formula? Does that include applied mathematics? So I come up with a mathematical algorithm to detect cancer in X-rays and it is ineligible because there are a bunch of formulas?
This whole thing reads like Benson.
Dennis, your link does not have the statutory language in your post.
>> non-technological economic
One other point about this. What does this mean? We can’t take the census without technology. And the way the census is taken is a function of how it interacts with the technology. So is taking a census “technological”? I would say —and any person that has studied innovation–would say YES!
Why? Because how the census is taken is now intertwined with technology just as almost all our “social” interactions are intertwined with the technology. So the “social” interaction change because of the technology and the technology changes because of the changes of the social interactions. And these intertwine and advance tecnhology.
Anyway….this 101 amendment is trash. Worse than Benson.
This could wipe out a huge percentage of software.
The same “huge percentage” of software that would be “wiped out” by this language is already wiped out. The bill does not make anything worse for anyone, but it does make some things better for some. I agree that the bill could be better, but it is still better than the status quo.
Greg>>>The same “huge percentage” of software that would be “wiped out” by this language is already wiped out. The bill does not make anything worse for anyone, but it does make some things better for some. I agree that the bill could be better, but it is still better than the status quo.
This is false by a large measure. This bill adds all sorts of areas that currently are patent eligible. Just an example what does “artistic process” mean? Why are “social” and “cultural” there?
Basically this would mean that any elements of claim that go to how any of the categories are performed would rendered the claim likely ineligible. So, as an example, what about the deep learning AI now that produce songs or art. Well, those are working in ways that are similar to the human mind or could be classified as an “artistic process”. So, something like the neural network being trained to generate melodies based on training of matching the melodies at some feature extraction level with all popular songs. This structure of the the deep learning AI could be said to be an “artistic process” and thus ineligible.
How does that make sense? The ignorance is just stunning.
>>(B) A process that— (i) is a non-technological economic, financial, business, social, cultural, or artistic process; (ii) is a mental process performed solely in the human mind; or (iii) occurs in nature wholly independent of, and prior to, any human activity.
[A]s an example, what about the deep learning AI now that produce songs or art.
Two brief responses:
(1) Under the terms of (B)(i), the “artistic” exclusion only comes inot play if the claimed process is a “non-technological… artistic process” (emphasis added). To the extent that the AI really is playing a necessary part in the process and that necessary part is claimed, it should not be too difficult to explain that the claimed process is a technological process, and thus outside the scope of the (B)(i) exception.
(2) You are all the time bemoaning the fact that current law excludes processes in which computers replicate human brain action. I agree with your sour view of the current state of eligibility law, but clearly we both agree that processes like you describe are already excluded from eligibility. The proposed language merely codifies the status quo. It does not make anything worse than the status quo. That is why I say that the proposed language does no further harm relative to the status quo.
>>The proposed language merely codifies the status quo. It does not make anything worse than the status quo. That is why I say that the proposed language does no further harm relative to the status quo.
Not true at all. Just adding new categories like “social” add to ineligibility and formalizing the technical requirement additionally narrows eligibility.
No one that works in prep & pros in CS/EE would agree with your assesement. Not one honest person.
Plus, I do deep learning AI now and know how it is viewed by the PTO. The whole question of whether it is “technical” is in the eyes of the beholder.
The fair people realize that it does do things kind of like a human but not really. But the unfair person maps what the deep learning does to what people do and tries to invalidate the claims based on this by claiming they are not technical.
It is really an untenable situation now and the proposed legislation would make things worse.
As I’ve said deep learning looks something like what people do.
You know the whole thing is just bizarre.
^^^ Utter tone-deafness.
Greg’s Big Pharma bias and a big F U to other areas of innovation.
… (to be clear, the tone-deafness belongs to Greg, not Night Writer)
ah – you actually did find it – and before your post at 14…
Tillis is NOT a friend.
He is a Trojan Horse provider.
“This sounds like it is the technical requirement in Europe.”
Certainly, a degradation of the more expansive Useful Arts (as opposed to Technical Arts) that currently is contemplated to be patent eligible.
Why can’t honest registered patent attys and agents be given the presidents ear when he selects a senator who knows and understands the law he is grouped with in Congress. I thought your type peppered congress. Or is that the reason why you have no control over your situation?
Off topic, but just FYI, mandamus to the WD Tex denied for HP today. Requested transfer to D Mass, but could not show clear error in Judge Albright’s analysis denying the transfer request.
An article on the IPWatchdog blog says: “Senator Tillis’ Patent Eligibility Restoration Act of 2022, S.4734, wrongly puts the courts in charge of defining public policy because it leaves key words completely undefined.”
“(A) by considering the claimed invention as a whole and without discounting or disregarding any claim element;”
Although apparently intended to undo the Alice 2 step test, I think the Supreme court would say the two-step process complies with this provision. The Alice decision makes a point of saying that (by cutting the claim to pieces), they are considering the claim as a whole, and it is not as if they actually throughout any part of the claim completely. They just forgot to consider all parts of the claim simultaneously and in the same manner for all purposes. Additionally, the proposed amendment to 35 USC 101 discusses “without integrating,” and the only way some part of the claimed subject is not “integrated” into the rest of the claimed subject is if the claim was NOT read “as a whole” (at least not in the sense that we thought “as a whole” meant prior to the two-step process), which encourages/requires a continuation of some form of the 2 step process at least in some situations.
I also wonder when something will be considered to be “integrated.” Will the CAFC in fact defer to the PTO/Lancau’s guidelines on this issue, as it would seem may be the intent of this language?
The “claim as a whole” concern simply doesn’t respond to whether the analysis of the “invention” is based on the point of novelty (the creative advance) or simply on the structural form (thing or process). This language can’t address the issue (and Flook also responded that the Court was doing claim as a whole when looking for the point of novelty). Of course, eliminating “new” from 101 would address this issue, and why the legislation should not be enacted.
What is that legal authority for that “Point of Novelty” approach (in your esteemed estimation)?
[minimal snark]
Pardon potential rePeat for Count Filter…
Your comment is awaiting moderation.
August 9, 2022 at 10:19 am
What is that legal authority for that “Point of Novelty” approach (in your esteemed estimation)?
[minimal snark]
“Integrated” “Social” “Cultural”
It is a “woke” bill.
lol, a woke patent system.
Greg, defending the indefensible: “The mental steps doctrine, like the printed matter doctrine, applies to 102/103, not to 101.”
Oh please. These “doctrines” are half-baked eligibility screens, acknowledged as such by the CAFC, and flow from 101 and Constitutional considerations (like the First Amendment).
You can’t hand-wave the logical problem away by making “clever” (or not) legal arguments. Face the music, write a better statute that expressly deals with the facts on the ground, or accept that these judge-made doctrines (or some other ones) will expand to rescue (nullify parts of) Tillis’ d.o.a. statute in the same way that the judicial exceptions saved the 1952 text from obliteration.
Dennis: As you noted, “In his press release, Senator Tillis indicates that the proposal “is the product of almost four years of consensus driven stakeholder conversations from all interested parties.”” But the fact that four years of conversations seeking consensus were held does not make the bill a “consensus” resulting from those conversations. There are and will remain serious objections to the proposed changes to eligibility law. See link to patentdocs.org.
It’d be nice if you two would actually address the facts in Mayo and the patentee’s theory of infringement. There was a reason that case went to the Supreme Court and there was a reason it was a 9-0 decision tanking the claims.
Granting patents on methods of gathering data using old tech and thinking a new thought about the meaning of data is something that most sane people find disgusting. Self-dealing shills like Noonan and his fanboys are loathe to acknowledge what they are actually asking for because they know that the people most affected by it would be repulsed.
True consensus is not possible.
The fact of the matter is that Efficient Infringement (and Efficient Infringers) are very real and established companies (primarily Big Tech) have a vested interest to insert as many Trojan Horses as possible into any “consensus,” as the last thing they want is disruptive innovation (and would much prefer to compete on non-innovation factors).
Consider the source.
From link to en.wikipedia.org
Thomas Roland Tillis[1] (born August 30, 1960) is an American politician serving as the junior United States senator from North Carolina since 2015. A Republican, he was elected to the North Carolina House of Representatives in 2006, and began serving as the speaker in 2011. He was elected to the United States Senate in 2014, defeating Democratic incumbent Kay Hagan,[2] and reelected in 2020, defeating Democratic nominee Cal Cunningham.[3][4]
As speaker of the North Carolina House of Representatives, Tillis led the Republican effort to block the expansion of Medicaid and worked to introduce restrictions on abortion, stringent voting requirements, and a constitutional amendment banning same-sex marriage. In the Senate, he has repeatedly voted to repeal the Affordable Care Act; he introduced a bill intended to protect coverage for preexisting conditions but it was undermined by loopholes and failed to match the ACA’s protections. On immigration, he proposed a 15-year pathway to citizenship for some undocumented youth as a more conservative alternative to the bipartisan DREAM Act. He initially opposed President Trump’s national emergency declaration to divert funding to a border wall, but voted for it after pressure from his party. Having previously denied that climate change is occurring, he has since acknowledged it, but opposes the Paris Agreement and the Clean Power Plan.
From link to statnews.com
Industry allies like Sens. Thom Tillis (R-N.C.) and Chris Coons (D-Del.) were also among the top recipients of pharma money. Both hold seats on the Senate Judiciary Committee, which oversees intellectual property law. In 2019, the pair authored a bill that would expand on the drug industry’s patent protections.
From link to wbtv.com
CHARLOTTE, N.C. (WBTV) – Senator Thom Tillis accepted more than $20,000 in campaign contributions from political action committees tied to pharmaceutical companies within two weeks of sponsoring a bill related to drug prices in late 2019.
Tillis was an original co-sponsor on the Lower Costs, More Cures act, which was introduced on December 19, 2019.
It was similar to a competing bill that had been introduced earlier in the year by Republican Senator Chuck Grassley of Iowa, except that it omitted a key provision opposed by the pharmaceutical industry that would cap drug prices at inflation.
NOIP,
Now that’s a healthy dose of Whataboutism….
“(B) A process that— (i) is a non-technological economic”
chuckle. The Definitions section is where the battle maybe resides. That section (B) needs work but is a good start maybe since probably even the Judges by now are tired of legislating patent stuff from the Bench so maybe there’s pressure from outside the Congress for them to Act. Be leery of those if any seeking to remove the “or discovers” lang. from 101, they are nobody’s friend but themselves.
Because Congress created an exception from CBM reviews for “technological” inventions, there is case law defining this term (Versata Development Group v. SAP America, 793 F.3d 1306 (Fed. Cir. 2015), et seq.). The definition is not as blank a canvas as some suppose.
for those wanting to peruse Greg’s citation:
link to cafc.uscourts.gov
page 15 hints:
However, the USPTO makes the point
that the question of whether the patent at issue here falls
within the scope of the PTAB’s authority under § 18 as a
“covered business method patent” (not one claiming a
“technological invention”) was decided by the PTAB at the
decision to institute stage, and on that basis it is immunized from later judicial review at the final decision stage.
frank comment at page 30 (one in which Tillis has ignored):
In addition to the boundaries inherent in the statutory definition, Congress also provided a specific exception:
“the term [covered business method patent] does not
include patents for technological inventions.” Id. Unhelpfully, Congress did not then define a “technological invention,” but instead instructed the USPTO to “issue
regulations for determining whether a patent is for a technological invention.” § 18(d)(2). The USPTO has by
regulation promulgated its version of a definition of a
“technological invention.” 37 C.F.R. § 42.301(b). The
parties disagree as to whether the invention in this case is
such an excepted “technological invention.”
Warrant that ANY Executive Branch ‘definition’ is most limited…
but the canvas really begins at page 36.
According to the regulation, a “technological invention” is one in which “the claimed subject matter as a
whole recites a technological feature that is novel and
unobvious over the prior art; and solves a technical problem using a technical solution.” Id. The regulation specifies that these criteria will be considered “on a case-bycase basis.” Id. This definition is notable as much for
what it does not say as for what it does say.
As ALSO noted at the time, it is very p00r form to define a word with that word used itself THREE times.
Or as the court stated:
Defining a term in terms of itself does not seem to offer
much help. In short, neither the statute’s punt to the
USPTO nor the agency’s lateral of the ball offer anything
very useful in understanding the meaning of the term
“technological invention.”
ANY result coming from a process that reflects the above cannot be anything but suspect.
“According to the regulation, a “technological invention” is one in which “the claimed subject matter as a
whole recites a technological feature that is novel and
unobvious over the prior art; and solves a technical problem using a technical solution.”
hah ! Sec 101 refers to conditions and requirements found in 35 USC. A Regulation cannot by itself have force absent a statute, just the same way as a stature has no force without an implementing regulation. Cali. Bankers Assoc. v Schultz (Rehnquist).
There can be no requirement for any technical problem, or solution, in US patent laws, unless 35 USC is modified, b/c any purported rule without a statute is Norwegian Wood !
Right, no one imagines that any of that case law about “technological” will matter if this bill does not pass. Congressional action is necessary for any of the rest of it to become significant.
Given that the EPO has been using the test “technical solution to technical problem” since 1978, and that with every passing year it proves ever more strongly that the test works, one would think that the legislature in the USA might give at least some minimal scrutiny to the EPO jurisprudence. Given that a claim has to be considered as a whole, it seems to me absurd (for example) to require:
“a technological feature that is novel and unobvious over the prior art”
It has received at least minimal scrutiny – each person who ever considered the technical solution angle of the EPO, gave it minimal scrutiny. Every single one of them, including moi.
The USA doesn’t want your Law, Mr. EPO. Our 1952 Act was far superior in every regard, the proof is in the pudding. The whole world knows it, which is why everybody copied our system for soooo long. :)))
“Everybody”? Who, exactly? Canada is the only jurisdiction that I know that has explicitly patterned its statute on ours. I lose count, meanwhile, of the jurisdictions that have explicitly modeled their statutes on either Britain’s or Germany’s statutes.
Greg, I can’t tell from your comment 611211 above whether you are taking C.Whewell seriously or not. But perhaps that was your intention. In either case, I took Whewell’s 61121 as 100% ironic, and smiled accordingly.
Ah, shame on me. I did take Whewell 6.1.1.2.1 in earnest, but as I re-read it in view of your comment, I think that you have the better reading here. His 6.1.1.2.1 is a better ironic send up than I had originally credited.
Greg, the interesting case is Japan, striving to fit in with both North America and Europe.. We know well how much of its current patent law derives from Germany and how much from the USA.
Also interesting is to observe how English (common law) patent rights have evolved in the other former territories of the British Empire.
max drei,
June 17 1812 letter from Thos. Jefferson to Judge John Tyler, Jefferson wrote:
“We did not bring with us the common law of England, we brought with us the rights of men’ expatriated men on arrival here. The proofs of which are to be found in the form of oaths the judges take.”
So, if anyone thinks the Americans were using English common law, that’s directly refuted by Jefferson’s own words.
Its hard to un-learn wrongs you learned, you might never learn these sorts of things. But, who cares ? lol
In particular, the statute would deny patent protection “for any of the following, if claimed as such:”
(A) A mathematical formula, apart from a useful invention or discovery.
(B) A process that— (i) is a non-technological economic, financial, business, social, cultural, or artistic process; (ii) is a mental process performed solely in the human mind; or (iii) occurs in nature wholly independent of, and prior to, any human activity.
(C) An unmodified human gene, as that gene exists in the human body.
(D) An unmodified natural material, as that material exists in nature.
If you make exclusion a legally relevant construct I think you’ll find that the courts are going to be tougher on the relevance. In other words, if “solely in the human mind” becomes the standard for computer-implemented mental processes, you’re going to suddenly find that 112b is going to exclude conventional computer hardware from a claim because it fails to point out and particularly claim the invention. I don’t think this will achieve what is intended to be achieved.
Your view on “conventional computer hardware” (sounding in the asinine “House TV show quip”) was long ago debunked with the Grand Hall Experiment.
But a lollypop for you for trying to reconflate 112 and 101
Your view on “conventional computer hardware” (sounding in the asinine “House TV show quip”) was long ago debunked with the Grand Hall Experiment.
The notion that anything “technical” is being taught in the claims is laughable, as the specs don’t do any technical teaching. You won’t see any code, any psuedocode, or even an algorithmic flowchart most of the time. The notion that you’re teaching computer science something when there’s no implementation teaching is ridiculous.
When there is no difficulty in making a computer simulate a human, there is no improvement to the art.
But a lollypop for you for trying to reconflate 112 and 101
The traditional mechanism attacking an overbroad claim that asserted it was more than an abstraction was 112b, not 112a. It’s only the CAFC that had to invent written description in order to bandaid the “particularly point out” language that they broke by saying that there was no link between what the specification teaches (versus what it merely mentions by relying upon the conventional skill in the art) and the claim scope.
It used to be that if you didn’t teach someone how to make a processor, you were admitting the processor was known in the art, and consequently it wasn’t particularly claiming to assert the processor as part of what this inventor invented. Regardless of whether it’s admitted or not even lay people know the generic processor exists, so its pretty absurd to fashion a rule where patent rights turn upon whether its in the claim or not.
So sad that you just don’t recognize how the patent equivalent of choice of wares (soft, firm, hard) works in reality.
You want what is just not required, and you continue to show your lack of understanding (and conflation) between the different sections of law.
At least marty has the excuse that he is in love with his own non-patent terrain reflection — you, as an examiner, should know better.
I don’t think this will achieve what is intended to be achieved.
What do you think is meant to be achieved here? From my point of view, if this legislation causes claims to fail under 112 instead of 101, that would be an improvement.
Patent law is all about providing an incentive. In order for it to work, inventors have to believe that the law will be applied fairly to them.
If a claim is unclear and it fails for unclarity, that is fair. Other inventors looking at what happened to the guy who failed to claim clearly do not feel that anyone was cheated.
If a claim that is unclear (or obvious, or not supported by an adequate written description) instead fails because it belongs to some nebulous category of “exceptions” to the eligibility statute, that does seem unfair (even though the outcome—invalidity—is the same whether it happens for lack of clarity under 112(b) or under “judicial exceptions” to the eligibility requirement). To the extent that the whole enterprise ceases to appear fair to the inventor community, patent law does not work.
Therefore, it is all to the good if claims fail for the right reason. If this statute does not save a single claim, but does cause the courts to do the work of striking invalid claims for the right reason, that is still an improvement to the well working of the system overall.
…. What Greg is taking a long time to get to:
The Ends do not justify the Means.
“To the extent that the whole enterprise ceases to appear fair to the inventor community, patent law does not work.”
LOL
News flash: this so-called “inventor community” has proven itself to be comprised mostly of glibertarian narcissists who feel that ANY rule which impacts their ability to get a patent in any subject and use it to enjoin the country or extract money from it is “unfair.”
Have you been asleep the last 25 years?
The cognitive dissonance is DEEP with this one.
Count me as a cynic, but even if this proposed language were to be enacted, you can count on the courts to still get it wrong. After all, even with the relatively simple language that currently exists, they’ve reinterpreted “any” to mean something much less than any.
No doubt they’ll try to reinterpret the “if claimed as such” language for the exclusions to mean something else. For example, if a claimed invention has features that “could be” a mental process performed solely in the human mind, even though expressly claimed as being performed by a computer or other machine, the courts may very well try to say the exclusions somehow still apply.
One glaring defect is the lack of any express definition of the term “non-technological”. It needs to be spelled out somehow and not left to arbitrary usage by the courts. Of course, the EPO hasn’t done a whole lot better, leaving terms such as “technical character”, “technical purpose”, “technical means” and “technical effect” apparently undefined, but at least they seem to be fairly consistent in their usage. Perhaps a reader with more extensive EPO experience can highlight potential improvements in the proposed language or propose a court-resistent definition of “technological”.
Lol – I hear you, but the size of the holes for things like “per se” and “as such” have grown quite in the opposite direction in the EP (as software and business methods flourish there).
Mark, there are some terms which are so fundamental that it makes no sense to define them. The term “invention” for example. Be careful what you wish for: do you really want the statute to include a definition of “invention”?
So it is, in Europe, with the term “technical”. Progress in the useful arts is so breath-taking. We don’t know what tomorrow will bring. To define “technical” today, and be confounded tomorrow by something that everybody can see is “technical” but yet is outside the statutory definition, is not very clever.
In Europe, for the last 40 years, at a rate of about a thousand cases a year, at EPO Technical (no pun intended) Board of Appeal (TBA) level, have informed us what “technical” means. You know, 40,000 data points on the graph is quite helpful for drawing conclusions from the data. That’s the advantage of civil law over common law, in this area of the law. None of the 30+ TBA’s are bound by the decisions of any of the others.
But it would be very helpful to clarify which of the two meanings of “invention” are intended – a creative advance (which then requires point of novelty analysis) or a claimed thing (although then it may be known and therefore not what most people view as an “invention”).
Prof. Sarnoff – again with the “Point of Novelty,” so (again), what is the basis of authority for that approach (in your estimation)?
The interpretation of 101 and its predecessors from the 1790 Patent Board rules through Funk Brothers (pre-1952); Application of Ducci through Flook (pre-Diehr) and now Bilski through Alice.
Anything pre-1952 is beyond suspect.
Application of Ducci — never heard of it.
Bilksi through Alice is NOT a proper citation.
Sorry, but this “line of thought” is not grounded in any controlling law.
Which meaning is intended? Getting into the technicalities, are we (pun intended). The UK Parliamentary Draftsperson covered that point by including in the (1978) statute that “invention” shall include an alleged invention. Whether that is helpful on this occasion though, I doubt. Personally, I find more intellectually satisfying than the US/UK case law on eligibility the EPO approach, which renders totally irrelevant to that enquiry any need to identify any (alleged) novelty or any (alleged) “contribution”.
You must be speaking of Canadian David Kent who went to Missouri where Schoonover was?
“So it is, in Europe, with the term “technical”. Progress in the useful arts is so breath-taking”
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How many times do you need to be called out for your attempts to equate OUR Useful Arts with YOUR patent system, MaxDrei?
Just please stop your nonsense.
Comments elsewhere suggest that the main beneficiaries of this “Patent Eligibility Restoration Act of 2022” would be pharma, including diagnostics patenting. Does anyone disagree?
How does making the following subject matter unpatenable by statute [rather than just under Bilski and Alice] change the majority of the present so-called 101 rejections, which are of the [different] “abstract” type?: “A process that— (i) is a non-technological economic, financial, business, social, cultural, or artistic process; (ii) is a mental process performed solely in the human mind;..” Even the Supremes never fully held all business method process claims to be unpatentable subject matter. Also, “non-technical” is not defined, especially as to whether that would require technical content in the claim itself?
The last attempt to amend 101 failed because major lobbying interests would not compromise, accordingly to the Senators most involved. Also are we not too close to a Congressional election for legislative battles over relatively low political priority legislation affecting only patents, and only a relatively small number of litigated patents?