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| Authored by: myNym on Tuesday, January 01 2013 @ 06:38 AM EST |
If this is true:
Just running the software in the computer
and not
doing the useful stuff is much like running any
other kind of simulator,
and
almost certainly not patentable.
Then how can you claim that the
software component itself is
patented?
Are you really saying that the exact
same software, running
the exact same steps, is patentable when it is doing
something "useful", but not when enveloped in a simulator?
It isn't the
software that variates the angle of attack of
the space shuttle's control
surfaces. That is handled by the
actuators.
Would standard off the shelf
nuts and bolts used in the
control linkages suddenly be patent protected
because they
were used in a larger system that was patented?
My
"misconceptions" might not be quite as "severe" as you
believe. [ Reply to This | Parent | # ]
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| Authored by: jesse on Tuesday, January 01 2013 @ 06:40 AM EST |
... Just running the software in the computer
and not doing the
useful stuff is much like running any other kind of simulator,
and almost
certainly not patentable. But that distinction really doesn't
help
anybody.
You missed the fact that there is no difference
between "running any other kind of simulator" and the "useful stuff" for the
computation.
That is why the computation itself is non-patentable. [ Reply to This | Parent | # ]
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| Authored by: Ian Al on Tuesday, January 01 2013 @ 08:43 AM EST |
Flook was the invention of displaying useful process limits as a result of doing
math on a computer.
Here it is absolutely clear that respondent's
application contains no claim of patentable invention. The chemical processes
involved in catalytic conversion of hydrocarbons are well known, as are the
practice of monitoring the chemical process variables, the use of alarm limits
to trigger alarms, the notion that alarm limit values must be recomputed and
readjusted, and the use of computers for "automatic monitoring-alarming."
Respondent's application simply provides a new and presumably better
method for calculating alarm limit values. If we assume that that method was
also known, as we must under the reasoning in Morse, then respondent's claim is,
in effect, comparable to a claim that the formula 2(pi)r can be usefully applied
in determining the circumference of a wheel.
As the Court of Customs
and Patent Appeals has explained, "if a claim is directed essentially to a
method of calculating, using a mathematical formula, even if the solution is for
a specific purpose, the
claimed method is nonstatutory."
So,
let's apply the same thinking to Apple's bounce invention. First of all, Apple
does not patent the causing of the visual appearance of something bouncing.
Computing, math and algorithms are not included in the patent claims except to
narrow the abstract idea to a technological environment. Apple have patented the
appearance of something bouncing to warn of the first or final display in a
series of displays (what is being displayed is not specified in the claims) and
not the way that is engineered. From Bilski:
Flook stands for the
proposition that the prohibition against patenting abstract ideas “cannot be
circumvented by attempting to limit the use of the formula to a particular
technological environment” or adding “insignificant postsolution activity.”
(Diehr)
For a book, the first and last page of the book is
displayed by the appearance of the covers which are conventionally devoid of
content. Books are also prior art for using finger gestures to page through
paginated content. For an art gallery, the first and last picture in the series
are indicated by either a piece of wall without picture content or by the end of
the wall. On some of their devices, Samsung use the 'end-of-the-wall'
method.
So, the concept of indicating the first and last page in
paginated content by visual means is prior art. The concept of paging using
finger gestures is also prior art. The concept of providing input data to a
computer using multiple fingers on a touch tablet only goes back a decade or so.
It happened soon after the combination of laptop style touch input interfaces
were combined with a display device. 'Reaching the first or last page' is not
art, at all and is an inherent feature of viewing paginated content like a book.
The visual appearance of movement such as bouncing goes back beyond the early
Disney animations to, at least the Victorian magic lantern slides that often had
animation effects.
Unlike the woefully inadequate Flook patent that
automatically recalculated the catalytic conversion alarm limits and used a
computer to instigate alarms, the Apple invention is merely a specific visual
effect that must be interpreted by the viewer. It monopolises the 'bounce'
visual effect, but only to warn of the beginning or end of the series of pages.
As with KSR v. Teleflex. Apple combine the prior art of end of document
indication and paging with fingers to make their new invention. However, in KSR
v. Teleflex the court had to decide if the invention of combining inventions
contained an inventive concept all of its own or was an obvious combination of
prior art. In the Apple case, no inventions were combined. It only combines the
concepts and abstract ideas that previously existed. The patent claims say
nothing about the method of detecting the document series limits: there is no
software, mathematical formula or computer science-based method claimed. Again,
from Flook:First, respondent incorrectly assumes that if a process
application implements a principle in some specific fashion, it automatically
falls within the patentable subject matter of 101 and the substantive
patentability of the particular process can then be determined by the conditions
of 102 and 103. This assumption is based on respondent's narrow reading of
Benson, and is as untenable in the context of 101 as it is in the context of
that case. It would make the determination of patentable subject matter depend
simply on the draftsman's art and would ill serve the principles underlying the
prohibition against patents for "ideas" or phenomena of nature. The rule that
the discovery of a law of nature cannot be patented rests, not on the notion
that natural phenomena are not processes, but rather on the more fundamental
understanding that they are not the kind of "discoveries" that the statute was
enacted to protect.
The obligation to determine what type of discovery
is sought to be patented must precede the determination of whether that
discovery is, in fact, new or obvious.
In this respect, Flook does
not apply to the Apple 'bounce' patent. The Apple patent is not a process. It is
a method of indicating the end or the beginning of a series of screen displays.
It uses the abstract idea of animating the appearance of a bounce to the first
and last display to indicate the minor error of trying to initiate the display
of a 'page' which is not available.
Let's see how many
first-and-last-page indications we can come up with. We can use the book method
of displaying a completely blank area and staying there. We can use the Samsung
and art gallery brick wall method of not going beyond the first and last page.
Apple saw someone use the visual bounce effect and Steve Jobs thought it looked
'cool'. Apple decided to copy that. Other methods I have seen are to temporarily
darken the display or to provide the Microsoft Windows 3.0 error bleep. KSR v.
Teleflex teaches us that combining multiple finger gestures with a visual error
warning about reaching the last or first page is the combining of prior art and
is unpatentable unless there is a novel and non-obvious inventive concept
involved.
In my opinion, the indication of a minor error event by
visual means, including animation effects, is obvious for computer and other
display-based devices. When you see the visual effect in the cinema, it does not
seem anything special. When the director uses camera shake to indicate an
earthquake it is not an inventive concept. Well, perhaps the method of shaking
the camera might be, at a stretch, but the invention of shaking the image
without any protected method of implementation is hardly a patent protectable
inventive concept. It is an abstract idea.
The Apple patent takes that
abstract idea and it is then narrowed to a computing device with a multi-gesture
touchpad input device combined with a display under the circumstances when a
software program application provides paginated content, paged using a
particular finger gesture and when the user pages beyond the paginated range.
The invention is to indicate the limits of the paginated range by displaying the
appearance of the page bouncing slightly from side to side. Not all bounces are
protected, just a single bounce which gives the impression that the last or
first page is pulled back by an elastic band with a single bounce.
We
can tell that it is an abstract idea, because the elastic band is an idea in the
mind of the observer. The pages only appear to bounce in the mind of the
observer. The idea of the error warning is the only thing claimed in the patent
and it relies on the perception of animation by the observer. It's all in the
mind. None of it is reality: it is all about appearances. The only claims that
are to do with reality are the claims attempting to limit the use of the
[principle] to a particular technological environment'.
From Mayo v.
Prometheus:The Court has long held that this provision contains
an
important implicit exception. “[L]aws of nature, natural
phenomena, and
abstract ideas” are not patentable. Diamond v. Diehr, (1981); see also Bilski v.
Kappos, (2010); Diamond
v. Chakrabarty, (1980); Le Roy v. Tatham, (1853);
O’Reilly v. Morse, (1854); cf. Neilson v. Harford, Webster’s
Patent Cases (1841)
(English case discussing
same).
Flook and Benson were the
implementation of abstract ideas on a computer. Diehr was a process for
producing cured, precision, rubber components that used a computer to do the
math. It had the significant 'post process activity' that Benson and Flook
lacked. It also had a significantly novel and useful inventive concept. The
Apple patent is an abstract idea which is not novel and is at the very limits of
being more useful than the obvious alternatives from prior art. It only uses a
computer because that is the technological environment to which it is narrowed.
Unlike Benson and Flook, the computer is not called upon to do anything specific
in the claims. There are no formulae to detect range limits or algorithms to
display the bounce effect. The claims are all about the abstract ideas. The
smartphone is only in there to stop Walt Disney being prior art for visual
animations.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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