The issue may be even more simple. A successfully applied citation of law
is the sign-vehicle for the particular case (referent). They are equivalent
for purposes of legal findings.
I'll agree it leads to a basic
misunderstanding of what a computer is. From A Theory of Computer Semiotics,
2nd Ed, Preface, 1.1 Computer Systems from a semiotic point of view, Page
3:
Thus, the main motivation for creating a discipline of computer
semiotics is that the primary function of computer systems is to work as
sign-vehicles. The reason why I am not proposing a discipline of
aeroplane-semiotics is that the main purpose of aeroplanes is transportation and
not semiosis. For this reason semiotics can be expected to reveal basic and
important properties of computer systems but not of
aeroplanes.
And on page 4:
...The computer model is
assumed to stand for the domain, but to whom? The model itself, in the shape of
source code and diagrams, is normally only perceived by systems developers, and
thus can only be said to stand for the domain to this group of people. Users
have no contact with the global model in their daily work, but only interact
with small pieces of model executions. The semiosis taking place here is very
different from the one system developers experience, and there is absolutely no
reason to expect that the meanings created during systems development
automatically migrate to the use situation.
Putting systems development
under the semiotic microscope reveals new interesting sign-types. We quickly
discover that it is only a half-truth that the source code stands for the
domain. Many lines of source code turn out to stand for the computer hardware or
software. ...
For purposes of software patents only the portion of
the software with a domain equivalency are considered, much as law against case.
A model is always an abstraction, otherwise we'd have patents enforced in
Second Life. Somewhere there has to be a change in state in matter. See
MPEP
2106:
I. THE FOUR CATEGORIES OF STATUTORY SUBJECT
MATTER
Step 1: Is the claim directed to one of the four patent-eligible
subject matter categories: process, machine, manufacture, or composition of
matter? The subject matter of the claim must be directed to one of the four
subject matter categories. If it is not, the claim is not eligible for patent
protection and should be rejected under 35 U.S.C. 101 , for at least this
reason. A summary of the four categories of invention, as they have been defined
by the courts, are:
i. Process – an act, or a series of acts or
steps. See Gottschalk v. Benson, 409 U.S. 63, 70, 175 USPQ 673, ___ (1972) ("A
process is a mode of treatment of certain materials to produce a given result.
It is an act, or a series of acts, performed upon the subject-matter to be
transformed and reduced to a different state or thing." (emphasis added)
(quoting Cochrane v. Deener, 94 U.S. 780, 788, 24 L. Ed. 139, 1877 Dec. Comm'r
Pat. 242 (1876)); NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1316, 75
USPQ2d 1763, ___(Fed. Cir. 2005) ("A process is a series of acts." (quoting
Minton v. Natl. Ass’n. of Securities Dealers, 336 F.3d 1373, , 336 F.3d 1373,
1378, 67 USPQ2d 1614, ___ (Fed. Cir. 2003))). See also 35 U.S.C. 100(b); Bilski
v. Kappos, 130 S. Ct. 3218, 95 USPQ2d 1001 (2010).
ii. Machine – a
concrete thing, consisting of parts, or of certain devices and combination of
devices. Burr v. Duryee, 68 U.S. (1 Wall.) 531, 570, 17 L. Ed. 650 (1863). This
includes every mechanical device or combination of mechanical powers and devices
to perform some function and produce a certain effect or result. Corning v.
Burden, 56 U.S. 252, 267, 14 L. Ed. 683 (1854).
iii. Manufacture – an
article produced from raw or prepared materials by giving to these materials new
forms, qualities, properties, or combinations, whether by handlabor or by
machinery. Diamond v. Chakrabarty, 447 U.S. 303, 308, 206 USPQ 193, ___ (1980)
(emphasis added) (quoting Am. Fruit Growers, Inc. v. Brogdex Co., 283 U.S. 1,
11, 51 S. Ct. 328, 75 L. Ed. 801, 1931 (Dec. Comm'r Pat. 711 (1931))).
iv. Composition of matter – all compositions of two or more substances and all
composite articles, whether they be the results of chemical union, or of
mechanical mixture, or whether they be gases, fluids, powders or solids, for
example. Chakrabarty, 447 U.S. at 308.
Non-limiting examples of
claims that are not directed to one of the statutory categories:
i. transitory forms of signal transmission (for example, a propagating
electrical or electromagnetic signal per se), In re Nuijten, 500 F.3d 1346,
1357, 84 USPQ2d 1495, ___ (Fed. Cir. 2007);
ii. a naturally occurring
organism, Chakrabarty, 447 U.S. at 308;
iii. a human per se, The
Leahy-Smith America Invents Act (AIA), Public Law 112-29, sec. 33, 125 Stat. 284
(September 16, 2011);
iv. a legal contractual agreement between two
parties, see In re Ferguson, 558 F.3d 1359, 1364, 90 USPQ2d 1035, ___ (Fed. Cir.
2009) (cert. denied);
v. a game defined as a set of rules;
vi. a
computer program per se, Gottschalk v. Benson, 409 U.S. at 72;
vii. a
company, Ferguson, 558 F.3d at 1366; and
viii. a mere arrangement of
printed matter, In re Miller, 418 F.2d 1392, 1396, 164 USPQ 46, ___ (CCPA
1969).
A claim that covers both statutory and non-statutory
embodiments (under the broadest reasonable interpretation of the claim when read
in light of the specification and in view of one skilled in the art) embraces
subject matter that is not eligible for patent protection and therefore is
directed to non-statutory subject matter. Such claims fail the first step and
should be rejected under 35 U.S.C. 101 , for at least this reason.
You can see from the four categories of subject matter why
particular machine is so important as commented above as Skilled in the
art describing the conversion of a general purpose machine to particular
machine, and in Non-limiting examples why transitory forms is so important in
item i. You could surely consider a model both equivalent to a game (v.) and a
computer program per se (vi.) and theoretically the last quoted paragraph
directs the examiner to consider models non-statutory embodiments.
In MPEP
2106, A. Practical Application of Machines, Manufactures, and Compositions of
Matter (Products):
The following examples show the difference
between a tangible embodiment that is evidence of a particular practical
application and an abstract concept that has no practical
application.
(a) A claim that is directed to a machine
comprising a plurality of structural elements that work together in a defined
combination based on a mathematical relationship, such as a series of gears,
pulleys and belts, possesses structural limitations that show that it is a
tangible embodiment, providing evidence that the mathematical relationship has
been applied (a practical application). Additionally, that tangible embodiment
is limited by the claimed structure and would not cover all substantial
practical uses of the mathematical relationship. The claim would be eligible for
patent protection.
We see the foundation for
software and computer as a particular machine, where in 1. Factors To Be
Considered in an Abstract Idea Determination of a Method Claim,
(a) Whether
the method involves or is executed by a particular machine or apparatus
:
For computer implemented processes, the “machine” is often
disclosed as a general purpose computer. In these cases, the general purpose
computer may be sufficiently “particular” when programmed to perform the process
steps.
Refer to the comment on Skilled in the art above or MPEP
2106 for further amplification. The problem with this is that the software
describes a model, which is an abstract of something real. It's not a tangible
embodiment without transformation of matter, or more than transitory signals
(and the Apple '381 bounce-back patent comes to mind here). Arguments aside
that stored data should also be considered abstract dealing a blow to
non-transitory signals, there needs to be a demonstration of material
transformation outside of the programmed computer (particular machine). We see
that the guidelines aren't applied ("A claim that covers both statutory and
non-statutory embodiments (under the broadest reasonable interpretation of the
claim when read in light of the specification and in view of one skilled in the
art) embraces subject matter that is not eligible for patent protection and
therefore is directed to non-statutory subject matter. Such claims fail the
first step and should be rejected under 35 U.S.C. 101 , for at least this
reason").
And this leads us to the argument of whether or not §101 Subject
Matter testing is required or should be done, in light of various legal
arguments defending software patents at least incidentally.
From a
spectator's point of view it looks as if neither the Patent Office nor the
(higher) courts, are interested in enforcing existing law and precedent in a
layered defense enabling software patents. Once is happenstance, twice is
coincidence, three times is intentional. Now the question is, in light of
recent patent wars whether software patents will squeak loud enough to gain
Supreme Court notice, and whether there's a cure there.
And none of this
would preclude software as a component of a machine performing a process
(method), should there be actual transformation of matter involved beyond
storing abstracts. [ Reply to This | Parent | # ]
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