You refer to the legal arguments and the patent claims. They do not reveal the
true story.
First, since we are quoting opinions, here is an apposite
quotation from Bilski: “Whoever invents or discovers any new
and useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title.”
Section 101 thus
specifies four independent categories of inventions or discoveries that are
eligible for protection: processes, machines, manufactures, and compositions of
matter.
I quote that to emphasis the independent nature of the
four categories of § 101 patents.
From the The Board of Patent Appeals
and Interferences review of the Bilski patent:
In the examiner's
answer, it is stated that "Applicant['s admission] that the steps of the method
need not be performed on a computer... coupled with no disclosure of a computer
or any other means to carry out the invention, make it clear that the invention
is not in the technological arts". The examiner states that the only way to
perform the steps without a computer is by human means, and, therefore, the
method is not technological because it does not "improve human efficiency" as
required by the definition of "technology". Thus, the examiner's answer relies
primarily on a "technological arts" test.
Machines, manufactures, and
man-made compositions of matter represent tangible physical things invented by
man and seldom raise a § 101 issue, except for the "special case" of claims to
general purpose machines (usually computers) that merely perform abstract ideas
(e.g., mathematical algorithms), where the fact that the claim is nominally
directed to a "machine" under § 101 does not preclude it from being held
nonstatutory. Machine-implemented methods also seldom have a problem being
considered a process under § 101 because a "process" includes a new use for a
known machine, § 100(b), again except for the "special case" of
machine-implemented abstract ideas. However, "non-machine-implemented" methods,
because of their abstract nature, present § 101 issues.
So, Bilski
might have transformed their abstract idea by putting it on-a-computer. However,
the examiner noted that this does not work 'for the "special case" of
machine-implemented abstract ideas'.
Let's consider the examiner's view
that the Applicants had to concede that the process 'need not be performed on a
computer'. Here is a part of the process2. perform a Monte Calrlo
simulation across all deals at all locations in the book over the last 20 years
of weather patterns and establish the payoffs from each deal under each
historical weather pattern;
3. assume that the summed payoffs are
distributed Ꞑ(µ,Ỽ); [closest available character
substitution);
4. perform one-tail tests to determine the marginal
likelihood of losing money on the deal and the marginal likelihood of retaining
at least the design margin included in the initial evaluation of Equation
(4);
I don't know what your mathematics skills are, but I would
not be able to do this analysis in my lifetime with a pencil, paper and a filing
cabinet full of data. But then, I am not a lawyer.
The Bilski invention
was for use on a computer. That is the only way it qualifies as a 'useful'
invention under the law. Further, at all levels short of the Supreme Court, it
is claimed that the invention patent might have been redeemed if it had passed
the machine or transformation test by having the words 'on a system with a
processor and memory' in a claim.
The text from the appeals board shows
that the definition of 'process' in § 100:(b) The term "process"
means process, art, or method, and includes a new use of a known process,
machine, manufacture, composition of matter, or material.
has been
criminally abused so as to find the known machine an infringement, in its own
right, of the process patent. A process, as highlighted in Bilski, is a novel
series of steps taken as a whole (Diehr) done by someone, with, or without,
employing a known process, machine, manufacture, composition of matter, or
material.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
|
