decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Bilski on Diehr and Flook | 360 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
This is not the inventive concept you are looking for.
Authored by: Anonymous on Wednesday, May 09 2012 @ 02:55 PM EDT
> However, since Google has agreed not to challenge the validity of the
patent, I
believe that arguments based on prior art are unlikely to happen.

My original point was that, if Google can argue that it has not done anything
which is not found in prior art, then Google has to escape (apologies for
complicated syntax here). This argument is not exactly a challenge to the patent
(the validity or invalidity of which Google would then argue is irrelevant to
its actions), only to its applicability to anything that Google did. I think
that such an argument could have quite a bit of traction, frankly. I mean, how
could practicing something which was published in books long before a patent was
issued be come a violation of the patent just because the patent was issued
later on? The patent would _have_ to relate to something else. But who actually
knows how Google is going to argue? None of us, obviously.

Tkilgore, not logged in at the office.

[ Reply to This | Parent | # ]

Bilski on Diehr and Flook
Authored by: Ian Al on Thursday, May 10 2012 @ 02:59 AM EDT
I won't give you a link ;-)
The application in Diehr claimed a previously unknown method for “molding raw, uncured synthetic rubber into cured precision products,” using a mathematical formula to complete some of its several steps by way of a computer.

Diehr explained that while an abstract idea, law of nature, or mathematical formula could not be patented, “an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”

Diehr emphasized the need to consider the invention as a whole, rather than “dissect[ing] the claims into old and new elements and then … ignor[ing] the presence of the old elements in the analysis.” Finally, the Court concluded that because the claim was not “an attempt to patent a mathematical formula, but rather [was] an industrial process for the molding of rubber products, ” it fell within §101’s patentable subject matter.
In Flook , the Court considered the next logical step after Benson . The applicant there attempted to patent a procedure for monitoring the conditions during the catalytic conversion process in the petrochemical and oil-refining industries. The application’s only innovation was reliance on a mathematical algorithm.
So Flook says that a valid patent has an innovation in there, somewhere. Diehr says that the old and new elements in a valid patent must be considered as a whole to see the innovation.

Diehr says that, if the asserted claims are old elements because they pre date the patent, the innovation is not infringed. The innovation is only infringed if all the other claims are also asserted as a whole thus encompassing the innovation.

You must not read the following, because it is a consideration of invalidity and because it combines two independent tracts in Bilski for dramatic effect.
In Benson , the Court considered whether a patent application for an algorithm to convert binary-coded decimal numerals into pure binary code was a “process”.

The Court first explained that “ ‘[a] principle, in the abstract, is a fundamental truth; an original cause; a motive; these cannot be patented, as no one can claim in either of them an exclusive right.’ ” The Court then held the application at issue was not a “process,” but an unpatentable abstract idea. “It is conceded that one may not patent an idea.

But in practical effect that would be the result if the formula for converting . . . numerals to pure binary numerals were patented in this case.” A contrary holding “would wholly pre-empt the mathematical formula and in practical effect would be a patent on the algorithm itself.

Diehr explained that while an abstract idea, law of nature, or mathematical formula could not be patented, “an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.
In a reply to PJ, I point out that the two patents are principles for the manipulation of arbitrary symbolic constructs. None of the things referred to in the patents are models of the real world. They are abstract ideas. In Diehr's words, they are not related to a real world 'known structure or process' because Sun had to make up the arbitrary symbolic constructs in the first place in order to apply the principle.

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

[ Reply to This | Parent | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )