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| Authored by: Ian Al on Friday, January 04 2013 @ 08:15 AM EST |
It does not include transformation of machines, methods or
processes.
The lower courts came up with a machine or
transformation rule. They never invented a transformation of machine rule. Their
idea, apparently, is that the invention of a process for transforming existing
materials to a new material was the invention of a new and useful composition of
matter.
In Bilski, the Supreme Court said Adopting the
machine-or-transformation test as the sole test for what constitutes a “process”
(as opposed to just an important and useful clue) violates these statutory
interpretation principles.
I believe that transformation of
numbers (data) has been accepted as statutory subject matter in some courts. The
USPTO Guidelines say:“Transformation and reduction of an article ‘to
a different state or thing’ is the clue to patentability of a process claim that
does not include particular machines.” Bilski v. Kappos (quoting Gottschalk v.
Benson). If such a transformation exists, the claims are less likely to be drawn
to an abstract idea; if not, they are more likely to be so drawn.
An
“article” includes a physical object or substance. The physical object or
substance must be particular, meaning it can be specifically identified. An
article can also be electronic data that represents a physical object or
substance. For the test, the data should be more than an abstract value.
Data can be specifically identified by indicating what the data represents, the
particular type or nature of the data, and/or how or from where the data was
obtained.
“Transformation” of an article means that the “article” has
changed to a different state or thing. Changing to a different state or thing
usually means more than simply using an article or changing the location of an
article. A new or different function or use can be evidence that an article has
been transformed. Manufactures and compositions of matter are the result of
transforming raw materials into something new with a different function or use.
Purely mental processes in which thoughts or human based actions are “changed”
are not considered an eligible transformation. For data, mere "manipulation of
basic mathematical constructs [i.e,] the paradigmatic 'abstract idea'," has not
been deemed a transformation.
I think the USPTO assertion that
manipulating data can be inventing a new and useful composition of matter is
denied by the Supreme Court in Mayo:Section 101 of the Patent Act
defines patentable subject
matter. It says:
“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.” 35 U. S. C.
§101.
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.
Manipulating data that
represents a physical object, laws of nature, natural phenomena, scientific
measurements or abstract ideas is similarly non-statutory subject matter as
transforming data is not the transformation of the composition of
matter.---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Friday, January 04 2013 @ 02:39 PM EST |
This "transformation" concept is incredibly offensive to me. It is
completely absurd, and easily demonstrated as such.
Consider the abacus.
An abacus is a mechanical computer.
It has a finite instruction set (slide bead X in direction Y).
It is impossible to perform any instruction that the abacus inventor did not
provide for (say, moving a bead between rods).
You can load data into different memory locations (rods).
You can perform complex operations (including some never dreamed of by the
inventors of the abacus) by combining a series of instructions.
BUT...
Loading data (setting a rod to a certain number) does not create a new machine.
It is simply using the abacus as it was designed to be used.
Performing a series of operations (no matter how complex, and regardless of
whether the abacus inventor ever thought of that use) does not create a new
machine. It is simply using the abacus as it was designed to be used.
The ONLY way to create a new, patentable machine is to build a new physical
abacus that allows some new instruction to be performed (such as moving a bead
between rods).
Therefore, loading data (or software, which is just data) onto a computer, or
running a program on a computer, NEVER EVER creates a new, patentable machine.
No matter how novel the software, it is only using the existing machine EXACTLY
as it was intended to be used.
Now... Can someone who is a better writer than I am please explain this to the
USPTO? Please?
[ Reply to This | Parent | # ]
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| Authored by: Anonymous on Saturday, January 05 2013 @ 05:29 PM EST |
You said
"I would accept that software can be
patentable if and only if it transforms a general purpose
machine into a special purpose, patentable machine."
The problem is that the CAFC says that software does exactly that.[ Reply to This | Parent | # ]
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