To be absolutely sure: IANAL!
My apologies. I was thinking about a
different thread - which you may or may not have authored - while I responded to
yours and realize now that I've conflated the two.
Now searching through
the threads I find I can't find it. I know I'm fighting the flu but I don't
think it's caused me to hallucinate before.
There was suggestion - I
swear I read it earlier but can no longer be sure - at some point that
"inventive concept" only applies as a measurement against "Laws of Nature". It
was to that suggestion that I was responding.
With such a suggestion,
having the Supreme's mention a lack of inventive concept relative to the process
of "using a computer to perform X" is where the logical fallacy would
appear.
To clarify my perspective based on what I quite possibly
imagined:
If "inventive concept" is only applied to "Laws Of Nature",
then since the Supreme's applied it in the context of "using a computer to
perform X", software as applied to a computer must - by definition - be a Law Of
Nature and therefore unpatentable.
On the other hand, if "using a
computer to perform X" is not a "Law Of Nature", then "inventive concept" must
be applied to more then just "Laws Of Nature.
I think we can consider the
above to be a non-issue and can draw a line here. The above is only to try and
clarify where my thoughts originated and why the conclusion was
drawn.
With regards the quote from the ruling and Judge Prost's
position - relative to you stating she doesn't have a clue - I think it still
holds value from the perspective:
If the Supreme's view "inventive concept"
must be examined as part of what makes something eligible for Patent
Protection
then
Judge Prost does have a valid point for raising it even
though the plaintiff/defendent may not have mentioned those exact words when
bringing up the patent eligibility/ineligibility.
On the point
you made:
If the issue is not before the Court, the Court need not evaluate
it!
I think that point is best answered with:
Slander of
Title carries (in some jurisdictions) certain elements:
- the uttering
and publishing of disaparaging words
- they were false
- they were
malicious
- special damages were sustained
- the plaintiff
possessed an estate or interest in the property disparaged
- the loss of
a specific sale
Now, let's say neither the plaintiff or defendant
raise point 2: that the words were false.
Are you really suggesting the
Court is ok to proceed with not evaluating one of the key elements that are
required?
I think it's best to say:
When it's a Requirement of Law
and neither side has raised it, then the Court still has a responsibility to
evaluate it.
While:
If it's a point not required by Law and neither
side has raised it, it's up to the discretion of the Court whether or not the
Court wishes to examine the point.
At the moment that makes sense..... I'll
let you know once the flu is gone and I can re-read this with a clear
head.
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