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| Authored by: Ian Al on Wednesday, January 02 2013 @ 11:57 AM EST |
I was looking for the quote where Alice accused someone (Tweedledum, I think) of
using words to mean whatever he wanted them to mean and I stumbled on this:
Postmodern Theory of Signs (Semiotics)
Within critical theory, the notion of sign takes various usages. "Many
postmodernist theorists postulate a complete disconnection of the signifier and
the signified. An 'empty' or 'floating signifier' is variously defined as a
signifier with a vague, highly variable, unspecifiable or non-existent
signified. Such signifiers mean different things to different people: they may
stand for many or even any signifieds; they may mean whatever their interpreters
want them to mean."
I take it that 'claims construction' means lawyers applying post-modernist
theories of semiotics to anything in patent claims over which Auntie
Merriam-Webster has not cast her Spell of Reality.
I really need PolR to explain how processors manipulate floating signifiers.
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Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid![ Reply to This | Parent | # ]
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| Authored by: Ian Al on Thursday, January 03 2013 @ 04:47 AM EST |
Postmodern Theory of Signs (Semiotics)
Within critical
theory, the notion of sign takes various usages. "Many
postmodernist theorists
postulate a complete disconnection of the signifier and
the signified. An
'empty' or 'floating signifier' is variously defined as a
signifier with a
vague, highly variable, unspecifiable or non-existent
signified. Such
signifiers mean different things to different people: they may
stand for many
or even any signifieds; they may mean whatever their interpreters
want them to
mean."
Semiotics may be social science, but that does not mean
that it is woolly or imprecise. When a court uses a Merriam-Webster Dictionary
meaning of words, they are using it as the US standard for the
sign-vehicle/interpretant relationships.
A writer of software source
code uses labels, object names and variable names which only have a specific
sign-vehicle/interpretant relationship to the software writer. They are not in
the post-modernist class of 'empty' or 'floating' signifiers. However, the only
sign-vehicle/interpretants available to other than the author are guesses based
on letter arrangements within the sign, and informed assessments based on source
code comments.
Any terms in a patent that are not explicitly and fully
defined using words from the Merriam-Webster Dictionary can only have the legal
status of empty or floating signifiers. Claim construction is legal handwaving
to set a sign-vehicle/interpretant for the period of the court case. The key
aspect of claim construction is that it is carried out by lawyers unskilled in
the implementation art of the invention.
A software patent expert
witness looking at source code can only be looking for the
sign-vehicle/interpretant relationships implied by the comments if the original
author of the comments and source code is not available during the expert
assessment. The expert then compares his guess of what he reads in the code with
the non-expert claim construction outcome.
The jury is expected to
accept the assertion of infringement from expert witnesses on the basis of
interpretants he is guessing at compared with empty or floating signifiers that
have been awarded signifieds by a process of debate between lawyers not expert
in the field of the invention.
The jury are not presented with the
results of claim construction or the source code writer's symbology and will be
inexpert in the art of the invention. They are asked by the judge to use their
worldly wisdom, common sense and their judgement of the veracity likely from the
lawyers and the witnesses.
The jury and bench trial system cannot be
expected to work well for patents and cannot be expected to work at all for
software patents. It makes it even more important that computing science and the
social science of semiotics, which is at the heart of the technology process of
envisioning and writing software, is fully appreciated by the courts. That and a
legally expert application of U.S.C. 35 ยง 101 to all patent submissions and
court cases. ---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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