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| Authored by: Anonymous on Wednesday, June 13 2012 @ 03:01 PM EDT |
Thanks for the feedback in this post, and thanks again for engaging and
discussing with us for the past 2+ days.
A lot of us here see the patent system as currently "running amok",
especially where software patents are involved. Anything that helps steer it
back onto a sensible course will be beneficial.
(I personally think the best thing would be to scrap the patent system
completely, but I realize that is not going to happen. Minor tweaks will be far
less effective, but are still worthwhile in the sense that they might still do
some good somewhere for somebody).[ Reply to This | Parent | # ]
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| Authored by: PolR on Wednesday, June 13 2012 @ 03:31 PM EDT |
I have enjoyed the discussion a lot.
I feel this sort of discussion helps us toward a better understanding of issues.
I can feel real progress on the "new machine" question.
I also take your feed back as series of homeworks. More focus on process claims
and more focus on where abstractness ends. But I think the homeworks should be
bilateral. It is not true we haven't thought of these topics. We didn't discuss
them as deeply as the new machine issue but this is because we didn't spend the
time to go into the details. personally I have a lot more to say than what has
been discussed and when we spend the time you will hear my answers about the
questions you raise.
I agree that abstractness analysis overlaps with novelty and probably
obviousness as well. This is clear from Flook and Prometheus. I think this
notion of doing the 101 analysis on the claim as a whole doesn't work for
abstractness.
[ Reply to This | Parent | # ]
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| Authored by: PolR on Wednesday, June 13 2012 @ 04:42 PM EDT |
I know you won't have time to respond, but since you will likely read this I
will communicate some of the most important points that were untold so
far.
I think
the hardware line is not clear. Most
commenters don't
seem to have a problem
with Diehr. That's
fine - the computer drives the rubber
mold and timer. Now
what about a robotic arm. Still physical. What about
machine
vision? That
seem's physical, but is more abstract. What
about
touchscreen apps? That's
handling input from physical
devices. What about
monitors? The bits sent to the
monitor
are no different in theory than those
sent to the robotic
arm or the
rubber mold machine, so why should they
be
considered any less physical?
Bits are never physical. But they
are related to the physical like the contents of book is not physical but
related to the physical paper and ink. Bits are symbols which convey meanings.
Here is a question: in the claim, is the meaning of the bit actually used? Or
is it only referred to?
We may to some extent relate this to utility. Does
the alleged utility directly result from practicing all the elements of the
claim? If yes we may cross the boundary of abstractness depending on which
practical application is considered. If the claim is drawn to actually move the
robotic arm or the curing of the rubber the line is crossed. If the claim is
drawn to the computation just to get the answer without doing the actual work,
the claim is abstract. So we may narrow down the range of problematic situations
in this manner.
But I am reluctant to do everything with utility alone
because language is useful and at the same time it may be abstract. Language may
be used to communicate or to reason logically, or to present information that
has practical utility. Fundamentally the math of computing are part of the math
of mathematical language. There is such a thing as mathematical reasoning about
the language of mathematics and the theory of computation is part of it. So we
really have to understand when a patent is on the language of mathematics itself
and when it is on an application of math which is more than mentioning the math
and say apply it.
This is a problem similar to patents on printing presses
and printing methods. You can have a useful dictionary or a new and nonobvious
exposition of reference material. This is useful. But you can also have
processes for printing on plastic or machines for printing newspaper with ink
that won't dirty your fingers. Where do we draw the line? If I understand the
printed matter doctrine correctly there is this concept of no patentable weight
given to the printed matter which looks very much like a subject matter
exclusion except that it is treated like an obviousness issue during 103
analysis. If we think along these lines I suspect we will get something that
will work much better than doing 101 analysis on the claim considered as a
whole.
This is going to work because the theory of computation is all about
manipulation of symbols according to the algorithmic rules. The issue is
fundamentally one of recognizing a patent on language itself as opposed to an
application described by the language or a patent on the physical substrate that
is used to manipulate the language. [ Reply to This | Parent | # ]
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| Authored by: PolR on Wednesday, June 13 2012 @ 08:58 PM EDT |
| I checked the article on the new machine thing. I was surprised. I didn't know
it was possible to claim a machine based on function alone.
Just for
comparison here is a few software cases on the topic. The CCPA and the Federal
Circuit pay attention to the structure issue. I wonder if pure functional
claiming is permitted because there is a presumption that there is structure
corresponding to function. Just asking.
in re
Prater
In one sense, a general-purpose digital computer may be
regarded as but a storeroom of parts and/or electrical components. But once a
program has been introduced, the general-purpose digital computer becomes a
special-purpose digital computer (i. e., a specific electrical circuit with or
without electro-mechanical components) which, along with the process by which it
operates, may be patented subject, of course, to the requirements of novelty,
utility, and non-obviousness.
WMS
Gaming, Inc. v. International Game Technology
The structure of
a microprocessor programmed to carry out an algorithm is limited by the
disclosed algorithm.
The instructions of the software program that carry out
the algorithm electrically change the general purpose computer by creating
electrical paths within the device. These electrical paths create a special
purpose machine for carrying out the particular algorithm.[3]
[This refers
to footnote 3 as follows]
A microprocessor contains a myriad of
interconnected transistors that operate as electronic switches. See Neil
Randall, Dissecting the Heart of Your Computer, PC Magazine, June 9, 1998, at
254-55. The instructions of the software program cause the switches to either
open or close. See id. The opening and closing of the interconnected switches
creates electrical paths in the microprocessor that cause it to perform the
desired function of the instructions that carry out the algorithm. See
id.
in re
Bernhart
There is one further rationale used by both the board
and the examiner, namely, that the provision of new signals to be stored by the
computer does not make it a new machine, i. e. it is structurally the same, no
matter how new, useful and unobvious the result. This rationale really goes more
to novelty than to statutory subject matter but it appears to be at the heart of
the present controversy. To this question we say that if a machine is programmed
in a certain new and unobvious way, it is physically different from the machine
without that program; its memory elements are differently arranged. The fact
that these physical changes are invisible to the eye should not tempt us to
conclude that the machine has not been changed.
Needless
to say, these three cases make computer professionals' blood boil. None of them
is technically correct and they don't bother to tell the same technical story.[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Thursday, June 14 2012 @ 01:44 AM EDT |
| I feel that this was an extremely interesting exchange of worldviews, and I'm
glad that PJ encouraged it.
However, I also feel that its productive value
to the software community was actually close to zero, because from the final
summing up, it is clear that Michael has not moved an inch. He claims that he
fully understands our points, yet nothing has altered in his opinion no matter
how many times and in how many ways people have explained why the software
practitioner's worldview does not match his. Arguing the finer points of
current patent law is quite pointless in this context if progress is to be made.
Bandaids and ointments are not going to help when the patient is almost
terminal.
This seems to be a general problem in this area. Nobody
influential in law nor in politics represents the worldview of the software
community, not even those who repeatedly claim to understand it and present
themselves as friendly to our needs.
Although I found it a very interesting
and courteous discussion, I am very saddened that there was not a single inch of
movement. It is not up to us to move. Software is our domain, not the lawyer's
domain, and we are looking for representation, not attenuation nor sympathy. [ Reply to This | Parent | # ]
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| Authored by: jesse on Thursday, June 14 2012 @ 06:49 AM EDT |
If it is abstract it is not supposed to be patentable.
All of your items 3,4,5 (and their subparts) ignore that they all are ABSTRACT
SYMBOLIC MANIPULATION, which is also known as "thinking".
The devices that carry out that symbolic manipulation are patentable.
Since you ignore that, you must be willing to issue patents on computer
generated invention to computers. (Perhaps they should be owned by the
manufacturer of the processor... after all, they were the ones that designed it
to do the symbolic manipulation.)
We already know this is happening - much of the "gene patents" are
actually created by computers doing random (or guided by mathematical
prediction) genetic manipulation that is then filtered by standard, pre-existing
tests. Any that appear useful get patented - the rest get discarded.
Yet, they get issued to arbitrary people (project leaders that are just entering
data, and guiding the testing) and immediately transfered to abstract entities
called corporations.
And because the generation and filtering are not published, much of this
research is discarded - and lost to the world. This causes other people to have
to repeat the process... and not to verify the results.
And that is a total loss - and in turn RAISES the cost of research and the
resulting products (at a minimum it is double, more likely triple) as well as
blocking additional research.
What is being done is no better or different than what the legislature that made
the value of pi 3 did.
Unfortunately, it is causing the science of computers to move overseas.[ Reply to This | Parent | # ]
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