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| Authored by: Ian Al on Wednesday, January 16 2013 @ 06:52 AM EST |
I still need to attend Patents §101.
THIS COMMENT INCLUDES EXTRACTS
FROM CLAIMS. However, I don't think that the extracts cover things that were
not already in place well before the publication of the patents.
U.S.C.
35, §101, - Inventions patentable: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
I have always assumed
that a factory containing a range of manufacturing machines is not a patentable
machine under §101. A manufacturing method that depends for its utility on
having a specific set of machines in a factory is equally
unpatentable.
If the factory was patentable, then machined
items or a class of machined item manufactured using the patented factory
machine or the patented factory process do not infringe.
Lets assume
that the two Allen patents are not improvements to existing inventions. Lets
also assume that they are not the invention of a composition of
matter.
6,034,652
1. A system for engaging the peripheral
attention of a person in the vicinity of a display device of an apparatus,
comprising:
a content display system associated with the display
device, the content display system including means for receiving a set of
content data and a set of instructions for enabling a display device display
device to selectively display, in an unobtrusive manner that does not distract a
user of the apparatus from a primary interaction with the apparatus, an image or
images generated from a set of content data, the content display system further
including means for using the display device to selectively display the image or
images using the set of instructions;
a content providing
system...
first communication means for enabling communication
between the means for providing and the content display
system;
second communications means...
12. A method for
engaging the peripheral attention of a person in the vicinity of a display
device or an apparatus, comprising the steps of;
acquiring a set of
content data from a content providing system;
We know that a new
machine is made by installing software on a general purpose computer. Any
manufacture or machine made in this way and fulfilling all of the claims,
infringes on the patent, but only if 'software on a computer' is the claimed
invented machine.
The 'machine' in '652 is a number of machines
connected to each other by at least two communication conduits. It is the
equivalent of a patented factory machine. The filtering and display of data are
the equivalent of components manufactured in the patented factory
machine.
When is the protected 'machine' manufactured and by whom? Has
the user of the display device manufactured the infringing machine by, say,
creating a communications means with Google or UTube?
Is the seller of
the content display machine inciting the infringement of the patent by supplying
a machine component specifically designed to browse to a multiplicity of content
providers?
The display user obtains the utility or usefulness of the
machine invention and so, what part does the content provider play in the
infringement?
Even if the 'unobtrusive manner that does not distract a
user' were not indefinite and therefore not an inventive concept, why is this
'machine' useful? The patent does not make a case for the inventive concept
being useful.
If this is the inventive concept in the patented
invention and it has been found unpatentable by the court, why would infringing
on any other machine claims matter, since they were not the
invention?
Who employs the 'method' of Claim 12. and what does the
'method' achieve that is useful? Is this a useful method and completely
independent of the useful machine invention in claim 1? If so, why are there two
inventions in one patent in contravention of the USPTO rules. If not, what part
of the machine patent does the method claim
play?
6,788,314
1. A method for engaging the peripheral
attention of a person in the vicinity of a display device, comprising the steps
of:
providing one of more sets of content data to a content display
system associated with the display device and located entirely in the same
physical location as the display device;
providing to the content
display system a set of instructions for enabling the content display system to
selectively display, in an unobtrusive manner that does not distract a user of
the display device or an apparatus associated with the display device from a
primaty interaction with the display device or apparatus, and image or images
generated from a set of content data;
and auditing the display of
sets of content data by the content display system;
wherein the one
or more sets of content data, each set being provided by an associated content
provider, wherein each associated content provider is located in a different
physical location than at least one other content provider and each content
provider provides its content data to the content display system independently
of each other content provider and without the content data being aggregated at
a common physical location remote from the content display system prior to being
provided to the content display system, and...
This is the
invention of 'new and useful process' in accordance with §101. Section §100
explains that a method is one of the meanings of process for the purpose of the
Act. The patent reinforces that it is both method and process because the claims
are in the form of process steps. Because the process is dependant on a number
of interconnected machines (servers and client) it is the equivalent of the
patented factory process.
What is the new and useful outcome of
employing the invented process? Who is employing the process? Why are there
machine design elements in one of the process steps (providing to the content
display system a set of instructions for enabling the content display system to
selectively display)?
The beneficiary of the process invention is 'a
person in the vicinity of a display device'. Is that person using the process or
method? If not, who is using the invented process? How is it that there are
several more claims in the same patent for other methods and processes? Are they
independent inventions? Why are they in the same patent in contravention of the
USPTO rules?
As with '652, even if the 'unobtrusive manner that does
not distract a user' were not indefinite and therefore not an inventive concept,
why is this a useful defined process? The patent is silent on the usefulness of
the invention.
We know from Diehr that it is the whole process with a
useful outcome that is protected and not the individual steps. Since no one
person carries out all of the protected process steps, how can anyone infringe
on the whole process invention?
What are the activities of the
defendants that infringe on any of the process steps in the invention? Do they
'do' anything or do they just provide two systems for the data? The patent
insists that 'each associated content provider is located in a different
physical location than at least one other content provider and each content
provider provides its content data to the content display system independently
of each other content provider and without the content data being aggregated at
a common physical location remote from the content display system'. So, how can
the defendants possibly infringe on this part of the claim when the protected
form of aggregation happens in the users display system?
What is going
on in these patents is the use of functional claim elements. As PolR says in a
members-only article:Sometimes an element of a claim doesn't state
how an element of the invention is built. It just states what it does. This
element is described by its function. This is called functional claiming. For
example instead of mentioning a specific heating device you may write “means for
heating”. Paragraph 112(f) is a rule on how such claim elements should be
interpreted.
Paragraph 112(f) states:
An element in a
claim for a combination may be expressed as a means or step for performing a
specified function without the recital of structure, material, or acts in
support thereof, and such claim shall be construed to cover the corresponding
structure, material, or acts described in the specification and equivalents
thereof.
So, rather than giving software code, it
would be OK to say 'use software installed on a general purpose computer to
apply the following algorithm to the digital data file'. The function would be
applying the algorithm and the means would be by writing a software program and
installing it in a general purpose computer.
In these patents (and in
so many other patents that we think of as 'software patents') the functions and
means are given (e.g. 'first communication means for enabling communication
between the means for providing and the content display system'), but there are
no actual invented and fully defined claim elements. It is an assembly of
'means' rather than an invention. Anyone who makes an assembly of means that
looks similar (and the means are, by definition, not explicit) can be found by
the court to infringe on the patent. In court, only some of the means are
asserted. Is each means an invention in its own right?
Note that the
entirety of the patents in question are written in this way. It is only by
reading the 'means' in earlier parts of the specification that the invention is
seen as displays connected to content providers over the interweb or other
communications. (The machines defined in the specification have to be put in the
factory for the method to be used or the factory machine to be created.) The
inventive concept ('unobtrusive manner that does not distract a user') is an
abstract idea that only has a meaning in the context of the patent when the
means of providing the functionality is known.
When the means is
studied, the means, itself, is insufficient to make the machine or execute the
process. The means is described as:
A user interacts with a control
device to cause information to be displayed on a primary display device. The
control device includes an appropriate user interface (e.g. a graphical user
interface, as discussed in more detail below) that allows the user to specify
control instructions for effecting control of the system.
So,
these are not machines made by programs installed on a general purpose computer
or an iPad, because that is not mentioned in the functional claims nor the
specification of the means to fulfil them. So, what exactly are the means
required to make the machine invention? What exactly are the machines that are
needed to be operated to execute the protected
process?
112(a):
The specification shall contain a written
description of the invention, and of the manner and process of making and using
it, in such full, clear, concise, and exact terms as to enable any person
skilled in the art to which it pertains, or with which it is most nearly
connected, to make and use the same, and shall set forth the best mode
contemplated by the inventor of carrying out his invention.
You,
doubtless, assumed that these inventions are a general purpose computer with
software, an OS with a GUI and a browser for the user to be able to access
servers with content. I have already noted that (even making these assumptions)
the defendants do not take part in, aid, incite or otherwise abet the invented
machine or the execution of the invented process.
But, forget what you
know about internet systems design, database systems, writing software for a GUI
based OS and general purpose computers. Looking at the precise wording used in
the specification, what is the art in which someone needs to be skilled in order
to make the patented machine or execute the patented process as stated in the
patent?
Did you have to use your extensive understanding of
computing systems to know what the patent was actually claiming? Has the
inventor set set forth the best mode contemplated by the inventor of carrying
out his invention'?
Why do you assume they are talking about your
particular technological art of computer systems? Supposing you were the
designer of smart televisions with remote controllers and internet access. Isn't
this the machine actually specified in the patent? Doesn't your smart, internet
connected television allow you to use the protected process in the process
patent?
What system of machines communicating with other machines can
you think of that could not implement the protected machine and the protected
process? How about 'J-Bell' on a telex or telegraph machine?
I see many
of the failures to comply with the patent Act in these patent of Allen. What I
cannot see is a logical way for the USPTO to test for such failings.
At least a starting point would be to test the patent specification
and claims against §101 to see whether it is a machine, manufacture, process or
method.
Any methods or process steps in the specification of a machine
are limited to the means of making of the machine that operates to fulfil the
protected functions. Using those methods or process steps are not infringing on
the protected machine.
Any machine cited in a patent-protected method
or process cannot be the protected invention. It can only be the means of a
person carrying out a process step. A feature of a machine cannot be the
inventive concept in a method or process invention. As with Flook and Diehr, the
inventive concept must be essential to the significant post-process
activity.
The Apple v. Samsung utility patents are non-statutory
subject matter under §101 because they claim a feature of a machine as a method
of, for instance, indicating the first or last content page in a series of
displayed content pages.
In this case both the function and means are
(inadequately) given in the claims. However, the patent claims again conflate
method, process, machine, function and means.
As a machine, there is
no new and useful machine, because what is claimed as the inventive concept is a
method of display.
As a process the patents fail because the
protected elements of the process are actually machines in their own right:
multitouch displays, software to display content, etc. Apple have patented an
assembly of 'means' rather than a process. Also, the 'process' or 'method' has
no post-process activity. After the method or process is completed, there is no
row of cured, rubber, precision ducks. There are no profits made from new energy
contracts.
One way or another, a smartphone user will find out when
the first or last page has been reached and this method or process does not
result in something new being displayed (unpatenteable, as in Flook) or made
(patentable, as in Diehr)
The process in Diehr was an improved process
for making an existing product. It was useful because it produced improved
precision. The Apple patent only provides an alternative to existing methods and
no argument is given in the patent for it being more useful that the other
methods. Only new and useful inventions are statutory subject matter under
U.S.C. 35, §101---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
|
- Useful - Authored by: stegu on Thursday, January 17 2013 @ 12:36 PM EST
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