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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 | # ]
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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 | # ]
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