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Authored by: Ian Al on Saturday, October 13 2012 @ 01:20 PM EDT |
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.
The Supremes, especially, are very
careful not to create new law.
From Microsoft v. AT&T
AT&T urges that reading §271(f) to cover only those
copies of
software actually dispatched from the United
States creates a “loophole” for
software makers. Liability
for infringing a United States patent could be
avoided, as
Microsoft’s practice shows, by an easily arranged circumvention:
Instead of making installation copies of software
in the United States, the
copies can be made abroad,
swiftly and at small cost, by generating them from a
mas-
ter supplied from the United States.
The Federal Circuit
majority
found AT&T’s plea compelling:
“Were we to hold that Microsoft’s supply by
exporta-
tion of the master versions of the Windows® soft-
ware—specifically for
the purpose of foreign replica-
tion—avoids infringement, we would be
subverting
the remedial nature of §271(f), permitting a technical
avoidance of
the statute by ignoring the advances in
a field of technology—and its associated
industry
practices—that developed after the enactment of
§271(f). . . . Section
§271(f), if it is to remain effective,
must therefore be interpreted in a manner
that is ap-
propriate to the nature of the technology at issue.”.
While
the majority’s concern is understandable, we are not
persuaded that dynamic
judicial interpretation of §271(f)
is in order. The “loophole,” in our judgment,
is properly
left for Congress to consider, and to close if it finds such
action
warranted.
From Bilski: Section 101 similarly
precludes the broad contention that the term “process” categorically excludes
business methods. The term “method,” which is within §100(b)’s definition of
“process,” at least as a textual matter and before consulting other limitations
in the Patent Act and this Court’s precedents, may include at least some methods
of doing business. See, e.g., Webster’s New International Dictionary 1548 (2d
ed. 1954) (defining “method” as “[a]n orderly procedure or process … regular way
or manner of doing anything; hence, a set form of procedure adopted in
investigation or instruction”). The Court is unaware of any argument that the “
‘ordinary, contemporary, common meaning,’ ” (Diehr) of “method” excludes
business methods. Nor is it clear how far a prohibition on business method
patents would reach, and whether it would exclude technologies for conducting a
business more efficiently. See, e.g., Hall, Business and Financial Method
Patents, Innovation, and Policy, 56
Scottish J. Pol.(“There is no precise
definition of . . . business method patents”).
The argument that
business methods are categorically outside of §101’s scope is further undermined
by the fact that federal law explicitly contemplates the existence of at least
some business method patents. Under 35 U. S. C. §273(b)(1), if a patent-holder
claims infringement based on “a method in [a] patent,” the alleged infringer can
assert a defense of prior use. For purposes of this defense alone, “method” is
defined as “a method of doing or conducting business.” §273(a)(3). In other
words, by allowing this defense the statute itself acknowledges that there may
be business method patents. Section 273’s definition of “method,” to be sure,
cannot change the meaning of a prior-enacted statute. But what §273 does is
clarify the understanding that a business method is simply one kind of “method”
that is, at least in some circumstances, eligible for patenting under
§101.
A conclusion that business methods are not patentable in any
circumstances would render §273 meaningless. This would violate the canon
against interpreting any statutory provision in a manner that would render
another provision superfluous. See Corley v. United States.
This principle, of course, applies to interpreting any two provisions
in the U. S. Code, even when Congress enacted the provisions at different times.
See, e.g., Hague v. Committee for Industrial Organization (opinion of Stone,
J.). This established rule of statutory interpretation cannot be overcome by
judicial speculation as to the subjective intent of various legislators in
enacting the subsequent provision. Finally, while §273 appears to leave open
the possibility of some business method patents, it does not suggest broad
patentability of such claimed inventions.
So, how does the
Supreme Court explain their position about your '"natural laws", algorithms,
math or mental steps'? Also from Bilski:
Section 101 thus
specifies four independent categories of inventions or discoveries that are
eligible for protection: processes, machines, manufactures, and compositions of
matter. “In choosing such expansive terms … modified by the comprehensive ‘any,’
Congress plainly contemplated that the patent laws would be given wide scope.”
Diamond v. Chakrabarty. Congress took this permissive approach to patent
eligibility to ensure that “ ‘ingenuity should receive a liberal encouragement.’
” (quoting 5 Writings of Thomas Jefferson).
The Court’s precedents
provide three specific exceptions to §101’s broad patent-eligibility principles:
“laws of nature, physical phenomena, and abstract ideas.”. While these
exceptions are not required by the statutory text, they are consistent with the
notion that a patentable process must be “new and useful.” And, in any case,
these exceptions have defined the reach of the statute as a matter of statutory
stare decisis going back 150 years. See Le Roy v. Tatham (1853).
The concepts covered by these exceptions are “part of the storehouse
of knowledge of all men . . . free to all men and reserved exclusively to none.”
Funk Brothers Seed Co. v. Kalo Inoculant Co.(1948) .
The §101
patent-eligibility inquiry is only a threshold test. Even if an invention
qualifies as a process, machine, manufacture, or composition of matter, in order
to receive the Patent Act’s protection the claimed invention must also satisfy
“the conditions and requirements of this title.” §101. Those requirements
include that the invention be novel, see §102, nonobvious, see §103, and fully
and particularly described, see §112.
So, you see that the precise
wording, ' new and useful', of the law has excluded “laws of nature, physical
phenomena, and abstract ideas.” since at least 1853 because they are not new and
useful, but they are “part of the storehouse of knowledge of all men . . . free
to all men and reserved exclusively to none".
Patenting abstract ideas
would be a patent on the actual thoughts that people are entitled to have.
Giving a monopoly on people's otherwise unfettered thinking does not meet the
'new and useful process, machine, manufacture, or composition of matter' letter
of the law.
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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