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Federal Circuit to Consider the Patentable Subject Matter of Software ~ mw
Tuesday, October 09 2012 @ 03:00 PM EDT

In an important decision [PDF; Text] granting an en banc hearing in the case of CLS Bank International the Federal Circuit is inviting the parties and amici to address the following questions:

a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible "abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?

b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

While I feel we should be restrained in our expectations of the Court establishing a more limited view of software patentability, at least they are asking the questions and inviting broad input.

This grant of rehearing vacates the July 9, 2012 decision of the Federal Circuit panel consisting of Judges Linn and O'Malley in the majority and Prost in the dissent. That decision was roundly questioned here and elsewhere (Patently-O and IPWatchdog).

Time to start the research and writing for all of the amicus briefs that will surely be filed in this case.

Grant of Rehearing

NOTE: This order is nonprecedential.

United States Court of Appeals
for the Federal Circuit


__________________________

CLS BANK INTERNATIONAL,
Plaintiff-Appellee,

AND

CLS SERVICES LTD.,
Counterclaim-Defendant Appellee,

v.

ALICE CORPORATION PTY. LTD.,
Defendant-Appellant.

__________________________

2011-1301

__________________________

Appeal from the United States District Court for the
District of Columbia in No. 07-CV-0974, Judge Rosemary
M. Collyer.

__________________________

Before RADER, Chief Judge, NEWMAN, LOURIE, BRYSON, LINN, DYK, PROST, MOORE, O’MALLEY, REYNA, and WALLACH, Circuit Judges.

O R D E R

A petition for rehearing en banc was filed by Appellees CLS Bank International and CLS Services Ltd.


2

(collectively “CLS Bank”), and a response thereto was invited by the court and filed by Appellant Alice Corporation Pty. Ltd. (“Alice”).

The petition for rehearing was considered by the panel that heard the appeal, and thereafter the petition for rehearing en banc, the response, and the briefs of amici curiae were referred to the circuit judges who are authorized to request a poll of whether to rehear the appeal en banc. A poll was requested, taken, and the court has decided that the appeal warrants en banc consideration.

Upon consideration thereof,

IT IS ORDERED THAT:

(1) The petition of CLS Bank for rehearing en banc is granted.

(2) The court’s opinion of July 9, 2012 is vacated, and the appeal is reinstated.

(3) The parties are requested to file new briefs addressing the following questions:

a. What test should the court adopt to determine whether a computer-implemented invention is a patent ineligible "abstract idea”; and when, if ever, does the presence of a computer in a claim lend patent eligibility to an otherwise patent-ineligible idea?

b. In assessing patent eligibility under 35 U.S.C. § 101 of a computer-implemented invention, should it matter whether the invention is claimed as a method, system, or storage medium; and should such claims at times be considered equivalent for § 101 purposes?

(4) This appeal will be heard en banc on the basis of the originally-filed briefs, additional briefing ordered herein, and oral argument. An original and thirty copies


3

of all originally-filed briefs shall be filed within 20 days from the date of filing of this order. An original and thirty copies of new en banc briefs shall be filed, and two copies of each en banc brief shall be served on opposing counsel. CLS Bank’s en banc brief is due 45 days from the date of this order. Alice’s en banc response brief is due within 30 days of service of the CLS Bank new en banc brief, and the reply brief within 15 days of service of the response brief. Briefs shall adhere to the type-volume limitations set forth in Federal Rule of Appellate Procedure 32 and Federal Circuit Rule 32.

(5) The court invites the views of the United States Patent and Trademark Office as amicus curiae. Other briefs of amici curiae will be entertained, and any such amicus briefs may be filed without consent and leave of court but otherwise must comply with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29.

(6) Oral argument will be held at a time and date to be announced later.

FOR THE COURT

October 9, 2012
Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc: Mark A. Perry, Esq.
David M. Krinsky, Esq.
John D. Vandenberg, Esq.
Julie P. Samuels, Esq.
Daryl L. Joseffer, Esq.


  


Federal Circuit to Consider the Patentable Subject Matter of Software ~ mw | 277 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
So, next stop the Supreme Court.
Authored by: Anonymous on Tuesday, October 09 2012 @ 03:01 PM EDT
The main effect of the Federal Circuit addressing this directly is that the
appeal to the Supreme Court will force the Supreme Court to address it
directly.

Then maybe we get some sanity back and get rid of software patents.

[ Reply to This | # ]

So, how to get our thoughts into an amicus brief?
Authored by: Anonymous on Tuesday, October 09 2012 @ 03:17 PM EDT
On question 1:
"Abstract idea" is a perfectly good test. Anything consisting of
mental steps or of mathematics is "abstract ideas".

It is a matter of fact, not refutable or ignorable by the courts, that software
is pure mathematics.

When does "adding a computer" make something patentable? When the
computer itself, the hardware, was invented by the person claiming the patent.
Adding a general computer which was invented by someone else and is
off-the-shelf *never* makes an unpatentable abstract idea patentable.

On question 2:
Treating the "method", "machine", and "storage
medium" claims as equivalent is legally intolerable. The abuse of this
"equivalency rule" has allowed patent trolls to take the 'most
advantageous' parts of the rules for methods, machines, and storage media, while
ignoring the disadvantageous parts.


"As embedded on a storage medium" claims are invalid per se, as they
constitute the storage of pure data in a medium of expression -- not an
industrial product or process, and properly the subject of *copyright* law. The
patent trolls ignore this fact by claiming "machine" claims....

If a machine is patented, however, an infringer must actually be distributing a
whole machine. The distribution of software alone does not primarily infringe
the patent. The patent trolls ignore this fact by claiming "method"
claims....

However, if a method is patented, first note that the method is only patentable
if it contains a non-abstract, non-mathematical step. But second, note that the
method can only be infringed by the *end-user* who runs the method --
distribution of software, mere instructions on how to perform the method,
*cannot* primarily infringe a method claim. The patent trolls ignore this fact
by claiming machine claims....

This scheme of grabbing whichever interpretation (method or machine) most suits
the patent holder for whichever argument the patent holder is trying to make,
while ignoring the protections for non-patentholders built into the rules for
that interpreation by saying "no, now it's a machine!" -- this scheme
is unsupportable and illegal, and must be stopped.

Claims must be analyzed as one type of claim *or* the other. Most of them will
fail, when analyzed as any *individual* type of claim, whether machine or
method; it is only by conflating the requirements for machine and method claims
that the courts have been confused into allowing invalid claims to stand.

[ Reply to This | # ]

Do not get your hopes up
Authored by: Anonymous on Tuesday, October 09 2012 @ 03:40 PM EDT
They decided long ago that any stupid, trivial idea is entitied to a patent and
they are never going to back down on that. They have spend so many years and so
much effort defending their mindless ideology that they are now incapable of
even thinking rationally on the subject.

All they want to do is figure out some formalism that will allow them to argue
that nothing is beyond the reach of patent protection. They just want to hear
opposing arguments so they can fortify their future opinions against them.

[ Reply to This | # ]

Official corrections thread here.
Authored by: red floyd on Tuesday, October 09 2012 @ 03:47 PM EDT
Do not start canonical threads as Anonymous.

Corrections in the title, please.


---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Official Off-Topic Thread here.
Authored by: red floyd on Tuesday, October 09 2012 @ 03:49 PM EDT
Do not start the canonical threads as Anonymous.

Please discuss off-topic stuff here. On-topic posters will be sued by Apple
(note to any Apple lawyers -- this is a joke).

Clickable links are nice, too. See the instructions in red when you post.

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Official COMES goes here thread here.
Authored by: red floyd on Tuesday, October 09 2012 @ 03:50 PM EDT
Do not start canonical threads as Anonymous.

Those of you posting COMES translations know the drill.

---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

Official News Picks thread here
Authored by: red floyd on Tuesday, October 09 2012 @ 03:51 PM EDT
Please do not start the canonical threads as Anonymous.

Please post the title of the newspick you are discussing as your subject line.


---
I am not merely a "consumer" or a "taxpayer". I am a *CITIZEN* of the United
States of America.

[ Reply to This | # ]

What Is Patentable With A Computer?
Authored by: StormReaver on Tuesday, October 09 2012 @ 04:17 PM EDT
The Supreme Court already answered the Circuit Court's question, but the latter
keeps ignoring the former. The answer was that if the subject matter was not
patentable without a computer, then the same process is not patentable with a
computer. That should have eliminated all software patents right there.

I don't hold out *any* hope of this going anywhere. This is the court that is
bent on the total destruction of the U.S. software industry, and is succeeding
beyond its wildest dreams.

[ Reply to This | # ]

Makes me wonder about The Apple v Samsung foreman...
Authored by: Anonymous on Tuesday, October 09 2012 @ 04:33 PM EDT
The jury foreman said that compatibility was a reason for a [software?] patent
not to apply. If we were to interpret that specific hardware platforms as a
requirement for a software patent to be valid, then we would have free reign for
software patents to appear on LOTS of devices which are not "PCs running
Windows."

I can't see how you could have it both ways. The platform for a software patent
must be very specific or else it's too general to be patented.

I haven't given this a lot of thought but you know... spit-balling...

[ Reply to This | # ]

We're Flooked
Authored by: Anonymous on Tuesday, October 09 2012 @ 05:01 PM EDT
The problem as I see it dates back to Flook. For ages now, they've used a
little dodge to add novel software to old, standard hardware and claim to have a
'new' machine, even though the novel part is not patentable subject matter and
the patentable part has already been invented.

I don't think it matters much how they write the claims as to what they're
doing, and that is meeting the requirements by parts, rather than having the
invention as a whole meet the requirements.

I think a simple rule that items which are not patentable subject matter cannot
make an invention novel would be ideal. This would be a departure from
precedent, but a sensible one in my view.

And yes, I realize that would destroy quite a few patents. That is, in fact,
the very point of it. Which is to say stemming the flow of money going from
innovators to patent lawyers.

Otherwise, we're going to have to pull an IBM and start patenting as much of the
patent system as possible, until it's impossible for a patent lawyer to practice
without infringing upon something so they can see the harm. You know, sort of
like how every single phone in the world somehow infringes upon someone's
patent.

[ Reply to This | # ]

Tools
Authored by: Anonymous on Tuesday, October 09 2012 @ 08:04 PM EDT
You can use tools for several purposes, but how far the use is patentable
instead of the tool itself? Better, the way trough which (procedure) it has to
be operated in order to follow a certain method, say like the pulling of levers
on a crane versus what the crane does itself.

Software instructions are called as such because they are the procedures through
which the hardware (tools) is operated, they tell it what to do, instruct it,
they don't do anything themselves. All that lies in the real word is the
hardware, or within the hardware depending on definition (like magnetic
alignments on a disc).

As a sophisticated tool, or maybe a set of tools, the hardware allows for a wide
variety of results. However, as a fixed set (100% for ASICs for sure, FPGAs are
also fixed in a way, but this is debatable), it is not ideal for everything,
hence constant additions to instruction sets and even coprocessors (SMP, gpgpu,
floating point like all those SSE or altivec, UVC for video, etc) now that
transistor density is pushing for better use of given die area. This also brings
another issue, the one regarding lower common denominator due to volume market
advantages against specific optimized sets, but I digress. Actually,
multipurpose is conflicting with the acronym itself, ASIC = application specific
integrated circuit.

[ Reply to This | # ]

Rember after the CAFC gets done.
Authored by: Anonymous on Tuesday, October 09 2012 @ 08:08 PM EDT
The Supreme Court will get all the stuff and issue a
"do over".

Mouse the Lucky Dog

[ Reply to This | # ]

An Interesting Point and a question for PoIR
Authored by: JonCB on Tuesday, October 09 2012 @ 11:39 PM EDT

Doing a bit of research into the history of patent ineligible "abstract ideas" I came across a wikia link that describes not only the original supreme court ruling that talked about them but some of the further supreme court rulings.

Of particular interest to me was the ruling regarding Benson, that the method was inelible because it was :-

not limited to any particular art or technology, to any particular apparatus or machinery, or to any particular end use.

So my question to you PoIR is this. Is it not a fair description to say that any software (and by this i specifically mean the instructions that are executed on a CPU, specifically removing the electrical interactions with any hardware) should be considered to be "not limited to any particular art or technology etc, to any particular apparatus or machinery, or to any particular end use."

Note that for anyone that wants to chime in that software written for x86 won't work on a motorola chip. Yes you are correct and yet that patent law ignores this fact is a matter of record. Unless a given patent were to specify a specific chipset, the patent would be considered to cover every chipset.

[ Reply to This | # ]

Software=math
Authored by: Anonymous on Wednesday, October 10 2012 @ 02:08 AM EDT
I'm taking a computer organization course at a community college and learning
how a processor works.

I am now 100% convinced that software is math.

Simple reason: all a processor can do is add, subtract by 2's complement, use
logic gates, etc. That's pretty much it. You can patent the organization of the
processor itself, sure, but not the software that runs on it.

Use of logic gates is also math, manipulating bits, etc.

Any use of the processor is therefore also math, the same way the theory of
relativity breaks down to equations.

You cannot patent software anymore than you can patent the theory of relativity.
Sure you can copyright the actual expression of it, but you can't patent the
concept.

I think people miss this (intentionally or not) because they assume that the
processor does mysterious voodoo to run programs, when in actuality its simply
manipulation of the presence and absence of voltages, thus physics and
mathematics only.

High level programming languages always break down to simple machine code, and
thus to this level.

Thus, software = not patentable.

[ Reply to This | # ]

Inviting the views of the USPTO
Authored by: Anonymous on Wednesday, October 10 2012 @ 02:52 AM EDT
Is interesting, as they seem to be increasingly aware of the
criticism levelled at them due to some of the stupider
patents they see fit to issue.

I wonder if they will strike a more conciliatory tone
regarding patentability to avoid wider reforms that could
cut their role seriously down to size.

[ Reply to This | # ]

What Are Patents For?
Authored by: dobbo on Wednesday, October 10 2012 @ 03:53 AM EDT

As PJ has stated before, good lawyering is about attacking on multiple fronts. To that end I would like to put forward the following as another way to attack software patents. I consider it a starting point, if this idea has merit then hopefully, as a group, we can improve it. Yes, it is overly simplistic in it's description of software, but then it is designed to be read by people with little or no computer expertise.

The purpose of a patent is to provide a government licensed, time limited monopoly to an inventor so that he can profit (earn a living) from their invention before that invention is gifted to socitey for others to build upon their work. An inventor that takes his invention to the grave does not benefit society, and therefore society would be forced to reinvent the same things again and again and again. Wasteful and an impediment to progress.

A patent granted in 1995 for a new type of wonder-chair that cured back pain would still be enforce today. So the next improvement, the adding of a cup holder, would not be allowed until 2015. But the usefulness of the wonder-chair will far outlast this time period, so long as humans have back pains the wonder-chair is useful to society.

Software has an extremely short usable life. An twenty year patent term is effectively a monopoly for the entire lifetime of the software.

Back in 1995 Microsoft released Windows 95, an operating system. Operating systems are one of, if not the, slowest moving types of software. An operating system allows other software (applications) to run on the computer hardware; and it is applications that make the computer into a useful tool.

Microsoft released a number of upgrades based upon Windows 95 every few years: Windows 98, Windows 2000, Windows ME. Each of these was improvement to Windows 95 and reused much of the original work, much like the steam locomotives of the first half of the 20th century were improvements over Stephenson's Rocket.

In 1993, less than ten years after the release of Windows 95, Microsoft released Windows NT. This new operating system (like diesel locomotives replaced steam) was the first in a new family of operating systems to provide better support and stability on the computer hardware that had appeared since the release of Windows 95. But this family also has a limited life. Windows XP was the last in the NT family and Microsoft will stop all support for it in 2014.

If Windows 95 was a patented item of software then the ending of the patent in 2015 would not have provided any benefit to society as a whole. Even it's successor is not a viable commercial product to it's inventor in 2015. There are, no doubt, some Window 95 systems still being used today. But these are legacy system to which changed and improvement is not economic. Any system that whats better computing would use a more modern operating system.

If patents are there to foster innovation then they must have a time limit short enough to allow for new inventors to build upon the work patented. The rapid development pace in both computer software and hardware means that a twenty year patent is a inhibitor to invention as it provides a monopoly to the inventor for longer than the usable lifetime of the invention.

[ Reply to This | # ]

This is huge
Authored by: Ian Al on Wednesday, October 10 2012 @ 04:46 AM EDT
No, not the story - my comment.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

Get rid of patents in general
Authored by: Anonymous on Wednesday, October 10 2012 @ 05:05 AM EDT
There was a newspick a while ago about the dangers of a patent system in
general.

Ahh, here it is:
http://m.theatlantic.com/business/archive/2012/09/the-case-for-abolishing-patent
s-yes-all-of-them/262913/

How about we send them that as a starting point for negotiations?

[ Reply to This | # ]

Federal Circuit to Consider the Patentable Subject Matter of Software ~ mw
Authored by: Anonymous on Wednesday, October 10 2012 @ 12:29 PM EDT
The basic problem with patents is that they are interpreted by lawyers, who
appear to be bad software developers - incapable of applying simple abstract
techniques to a concrete problem to derive a suitable solution.

Or perhaps they are good lawyers, capable of ignoring the plank in their
client's eye whilst complaining of the splinter in the eye of their opponent.

Lets try to get back to basics. Patents should 'teach' experts in the field
something that is new and beneficial to the software field.

Patents currently cover concrete systems that are just the application of some
of the basic software engineering techniques to a specific problem domain.
e.g. the Java patent that covered the lookup of symbols in the byte-code before
execution to optimise the repeated execution of the code - this process is a
straight forward application of 'moving code out of the inner loop' optimisation
principle.

It seems to me that software should not be patentable if it is the result of
applying the principles taught in school, college, university or books; as any
competent software developer can apply these techniques to solve a specific
problem without needing the 'teaching' of the patent.

It should be possible to get a patent on a new general principle, or even a new
basic algorithm, but the combination existing principles and algorithms to solve
specific problem is the NORMAL task of software developers and should not be the
domain of patents.

This would prevent the creation of patents for software that replaces existing
manual systems, as it results from the application of basic systems modelling
principles.

New algorithms, like RSA public key encryption, should remain patentable :).
Although RSA is maths, and hence held by some to be unsuitable for patent
protection, RSA is a truly novel and powerful invention that has benefited the
technical world enormously and IMHO should have been rewarded appropriately by
the patent system.

[ Reply to This | # ]

Federal Circuit to Consider the Patentable Subject Matter of Software ~ mw
Authored by: Anonymous on Wednesday, October 10 2012 @ 02:08 PM EDT
Second comment :).

Where the invention is the result of research and or innovative thinking, and is
not simply the application of the software developers craft the invention
deserves protection from copying without compensation for the inventor.

Where the 'invention' is the result of the application of well-known techniques
or principles to a common problem domain it does not.

As an absurd example, useful systems can be 'invented' as the result of an
optimisation algorithm applied to a concrete problem. Are the optimised
parameters combined with the execution engine then eligible for patent
protection?

The known techniques and principles of software development are continually
improving, so the distinction is not easy enumerate.

[ Reply to This | # ]

Federal Circuit to Consider the Patentable Subject Matter of Software ~ mw
Authored by: Anonymous on Wednesday, October 10 2012 @ 07:16 PM EDT
"Federal Circuit to Consider the Patentable Subject Matter of Software
"

being an non-american, having a feeling that the USA legal systems is some kind
of devilish joke on mankind, I think those questions are... must be... a
manifestation of a genius.
Humbly: bow, bow, bow!
May the patent idiots croak on the answers!

Best,
Per Funke

[ Reply to This | # ]

My views on software patents...
Authored by: Anonymous on Wednesday, October 10 2012 @ 10:12 PM EDT
This might be a bit of a ramble, but I want to write my
views on software patents down somewhere.

I'm a software engineer. I work for one of the companies
that gets mentioned on this site from time to time. I get
frustrated at a large number of software patents (especially
the ones that get brought up in smartphone litigation) but I
support a number of patents (for example, the ones that keep
my WiFi working).

I think the Software = Math = Non-patentable argument is
misleading. Whilst I do know that all software can be
ultimately reduced to lambda calculus and thus 'is' math, I
don't believe this should remove it from the realm of
patentable subject matter. I believe that for any reasonable
definition of 'mathematics' or 'natural laws' as understood
by the law makers, a computer program does not fit that
description. At no point when I am creating software am I
personally 'doing math', no more than a mechanical engineer
is 'doing gears' when he makes an engine.

To say that software is not patentable subject matter is to
say that all software is naturally occurring, or scientific
principle, both of which claims I vehemently reject.
Software programs are not immediately obvious from the mere
existence of a computer chip as some people might like to
think. Software takes considerable intellectual investment
and time to create. Should not a person be compensated and
rewarded for the time that they spent creating an invention?
I believe they should. No less effort is put into making a
software invention than into a mechanical invention, and the
same protections should be applicable to both.

The problem then comes in to how a software patent should be
written as a document, and this is where I see the real
trickiness. One cannot simply submit the code, as
transformation of the code is trivial. Pseudocode suffers
similar problems. However the further away one gets from
code into abstract descriptions, the more obvious the
invention becomes and the less able a person with ordinary
skill in the art is to recreate the invention.
Take a look at say, one of the Siri patents. A second year
comp-sci student would be able to envision and describe the
system in as much detail as presented in one of the those
patents, but that is a long way away from having invented
the system in question. The actual invention, the cool
innovative features that make the system work, are not
described within the patent. I'm not sure if there is a good
balance between system description (abstract) and
implementation (concrete).

Similarly, there are a number of 'inventions' in software
which I think are only granted to the first person to
consider it a problem; for many software patents, the
solution (as described in the patent) is obvious in light of
the problem description. Additionally, the patents which
describe 'invention x, but on a computer/mobile
device/touchscreen device' are generally (in my opinion)
obvious in their (patented) solution, without being obvious
in their (implemented) solution.

And finally, the issue of duration. As others before me have
pointed out: the 'lifetime' so far of software has been
minimal. A large amount of software 'dies' before a 20 year
patent would expire. Patents,and 20 year patents, may be necessary and desirable
for some industries
(pharmaceuticals) but the extended duration doesn't make
sense really for software.

... this is a bit of a ramble, so I'll finish up: software
should be patentable subject matter, but that doesn't mean I
think all software should be patented. I think the
software=math argument is not particularly relevant in real
world terms. I think there should be software patents; they
should just be better, and less numerous.

[ Reply to This | # ]

When you think about it.
Authored by: Anonymous on Thursday, October 11 2012 @ 10:52 AM EDT
Patents are inventions, innovation, basically exceptions to the existing world.
How many can there be? It should be very, very hard to get a patent not very,
very easy. By allowing this to go on we dilute the technology with noise that
hides the true innovation and genius. It will probably be decades if not
centuries before we find the real value in what is patented today just because
the valuable stuff is buried too deep.

[ Reply to This | # ]

Why 101(?) fails --first quick draft
Authored by: Anonymous on Friday, October 12 2012 @ 01:58 AM EDT
This comment doesn't directly reply to the questions posed, but it covers some
of the thinking that may be used to address the Court's questions.

The crucial statement below might be this one: "5--The new process is
unlikely to promote the progress (and hence fail 101?) if the machine itself and
all requirements are readily accessible (eg, cheap and plentiful)."

1--Software are instructions and data. These are digital abstractions much as is
any form of writing (eg, where what matters is that we have say 1 of 100 symbols
rather than any specific visualization/implementation of that symbol).

2--The physical machine without software is an existing invention.

3--The software running on that machine may enable (comprise) a new process.

4--The process is not abstract when it is detailed sufficiently to allow a
non-ambiguous mapping to instructions or data against a real computer interface
to produce a useful creation. Ie, having a form of clear source code can be the
defining characteristic of a non-abstract process.

5--The new process is unlikely to promote the progress (and hence fail 101?) if
the machine itself and all requirements are readily accessible (eg, cheap and
plentiful). In determining where to draw the line, we can look at costs, etc(,
of the existing machines and other requirements). As a particular example, a
computing device accessible to a significant fraction of consumers cannot have a
qualifying process created for it that merely creates new permutations of the
existing well understood effects of the device, in particular, new permutations
of light and sound within the generally anticipated range of such light and
sound. On the other hand, such a device attached to a costly apparatus to help
create new vulcanized rubber (Diehr), might qualify for patentability. So, under
this definition, a droid running a new virtual game or virtual music player (ie,
light/sound permutation) would not be patentable while the Diehr patent might
have been.

6--The reasons new uses for the cheap and plentiful creates problems for society
(and progress in the art) are easy to see. A new "use" (itself devoid
of matter) is but an idea. Expressions of ideas are covered under copyright, but
the ideas themselves are part of what we all share as "information" in
order to step on each other's shoulders on a continual basis (by potentially
hundreds of millions of Americans) to further develop the ideas. If we remove
the obvious and natural mapping of that idea onto a cheap and plentiful device
that enables inventors to experience the new sensation or understanding, we are
removing the motivation for invention and we are removing opportunity to invent
for potentially everyone in the nation. This is why patents have followed a
historical path distinct from copyright and implicitly invoke the need for
financing the repeat manufacture of new technology, rather than merely the need
for financing for duplication of new uses of an existing technology (the
printing press), especially of a widely accessible existing technology (the
computer in the 21st century).

7--It should be noted that independent invention and fair use are not a part of
patent law, further supporting the notion that patents were not intended to
curtail the spread and improvement of ideas.

8--It should be noted that the inventiveness bar for patents is extremely low:
merely "non-obvious" to a person having "ordinary" skill in
the art. If we apply that low bar to information and ideas devoid of new
manufactures, we end up with say 1/3 (at 1 standard deviation or maybe even 50%
if the hypothetical ordinary person lies exactly in the middle) of the inventors
(ranging into the millions perhaps) having found any particular patented
invention to be obvious because the invention might only have just met the bar
of being "non-obvious" to no more than the person who is of average
ordinariness and certainly. Allowing patents here would handcuff loads of
inventors and especially a potentially large number of geniuses (who btw are
unlikely to recognize as interesting what is merely "non-obvious" to a
person having ordinary skill in the art).

9--Note that this rationalization above indirectly suggested "Diehr"
might have been the correct call, but otherwise poo-poos on software patents as
commonly used (on computing devices).

-- Jose_X

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Federal Circuit to Consider the Patentable Subject Matter of Software ~ mw
Authored by: rebentisch on Friday, October 12 2012 @ 03:43 PM EDT
What I find absolutely stunning is that they use the term
"computer-implemented invention" introduced for the EU software patent
directive proposal! It had a certain political purpose in the debate but here it
is used in a way completely detached from the meaning.


[ Reply to This | # ]

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