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| Authored by: PolR on Tuesday, October 16 2012 @ 12:23 AM EDT |
| I am not a lawyer. I am not designing a test. I am proposing a way to develop
one. It belongs to a lawyer to develop the test.
I have written
this:
I think the concept of manipulation of symbols is
well-defined. It should be possible to develop a workable legal test on this
basis. An obvious possibility is to modify the Freeman-Walter-Abele test which
has been rejected in Warmerdam, testing for manipulations of symbols instead of
algorithms. Another possibility is to make a literal application of Mayo v.
Prometheus "to transform an unpatentable law of nature into a patent-eligible
application of such a law, one must do more than simply state the law of nature
while adding the words 'apply it'." This alternative test would compare the
utility of the claim taken as a whole with the utility of the manipulations of
symbols taken alone, adding the words "apply it". There must be a substantial
difference between the two, otherwise the claim is not patent-eligible according
to Mayo.
I think the courts should be able to apply this kind of test
because the fundamental problem with the definition of terms is
solved.
You have two examples of tests you could consider. Or if
you are a lawyer you could try design your own. It is your choice.
If you
are a lawyer arguing against software patent you try to turn this into a test
that blocks a lot of software patents. If you are a lawyer arguing in favor of
software patent, you try to do the opposite, or you try to convince the Federal
Circuit to use something completely different. It is your choice.
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