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Amiga Rulz! | 661 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here please ... e.g. LInux->Linux
Authored by: nsomos on Thursday, March 28 2013 @ 09:04 AM EDT
Please place any needed corrections here in this thread.
It may please the readers to have a summary in the
posts title where possible and appropriate.

LInux -> Linux

Thanks

[ Reply to This | # ]

Rackspace/Red Hat Hand Uniloc A Quick And Significant Defeat ~mw
Authored by: Anonymous on Thursday, March 28 2013 @ 09:08 AM EDT
The USPTO should be shut down completly for granting a patent
for that. Somebody needs to be punished for any financial
harm the that patent caused.

[ Reply to This | # ]

The Linux kernel does not use floating point
Authored by: Anonymous on Thursday, March 28 2013 @ 09:21 AM EDT
The funniest part in this is the fact that the Linux kernel does not use
floating point formats. Floating-point registers are saved and restored by the
kernel when scheduling, for example, and there are facilities to allow
floating-point computation within the kernel, but the kernel.org kernels do not
use floating point math. Wherever real numbers are used, fixed-point
calculations, often with 64-bit intermediate results, are used.

Thing is, "floating point" refers to a very specific format of numeric
values: one where there is a mantissa, and an exponent (of a base value, radix).
In the Linux kernel, non-integer numbers are either fixed point (i.e. integers
multiplied by e.g. 1/1000 or a negative power of two), or rational
(numerator-denominator pairs).

[ Reply to This | # ]

Rackspace/Red Hat Hand Uniloc A Quick And Significant Defeat ~mw
Authored by: Anonymous on Thursday, March 28 2013 @ 09:22 AM EDT
The patent may fail for technical legal reasons but what is actually described
is in fact detail on the design of hardware to perform floating point
operations efficently. The fact this is not understood shows the inability of
those deciding these sort of things to understand the language and context of
the subject matter. The whole point is a trade off in efficency of hardware
design versus numerical accuracy in certain cases with very small numbers.

On the other hand what is described is obvious to someone who knows floating
point representations and is interested in the limitations of it and practical
hardware implementations. It is quite common that hardware does not implement
IEE 754 sub-normals for reasons of efficency and cost benefit of high hardware
implementation cost versus low benefit. I am not even sure what they describe
makes any sense from a cost benefit point of view. Numerically you are in a bad
place if any of this makes a difference and in practical applications you make
sure you avoid it.

Just because the decision has for once gone in a direction we agree with does
not mean anyone should be happy with a continued demonstration that courts do
not understand the subject matter, the language that describes the subject
matter and the practicality of product developers and can therefore make
decisions that appear capricous or irrational. The big problem remains issung
patents that are obvious (and quite possibly not novel).

[ Reply to This | # ]

Rackspace/Red Hat Hand Uniloc A Quick And Significant Defeat ~mw
Authored by: kuroshima on Thursday, March 28 2013 @ 09:55 AM EDT
I assume that this will be appealed, if possible, so for those
who grok legal, how bullet proof is this?

[ Reply to This | # ]

News Picks
Authored by: raiford on Thursday, March 28 2013 @ 10:01 AM EDT
Discussions about the news picks go here

[ Reply to This | # ]

Off Topic
Authored by: raiford on Thursday, March 28 2013 @ 10:02 AM EDT
Off topic discussions here

[ Reply to This | # ]

Comes Goes Here
Authored by: artp on Thursday, March 28 2013 @ 10:17 AM EDT
For posting in text mode those html-coded transcriptions of
the "Comes v. MS" case contained in the link above.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

What happened to Red Hat's Copyright claims?
Authored by: OpenSourceFTW on Thursday, March 28 2013 @ 10:22 AM EDT
Didn't they have GPL claims against Uniloc?

[ Reply to This | # ]

Obvious Patent, too
Authored by: lnuss on Thursday, March 28 2013 @ 10:24 AM EDT
"Now if that anything more than a mathematical formula with no specific
application, then I don't know what is one."

In any case, the description provided describes a known operation that's been
around at least 30 years, from personal knowledge (probably a lot longer).

---
Larry N.

[ Reply to This | # ]

Mathematics vs. arithmetic
Authored by: artp on Thursday, March 28 2013 @ 10:27 AM EDT
I note that the judge, in the second blockquote of the
article, uses both mathematics and arithmetic as terms to
describe the operations.

I worry that courts can understand arithmetic, but not
mathematics. (Despite the fact that some judges are skilled
programmers, cf. the Oracle case re Android.) Our poor
educational system is catching up to us.

---
Userfriendly on WGA server outage:
When you're chained to an oar you don't think you should go down when the galley
sinks ?

[ Reply to This | # ]

There are Hardware patents just as bad
Authored by: Anonymous on Thursday, March 28 2013 @ 10:29 AM EDT

For example Johnson Matthey wa issued a patent for a Diesel Particulate Filter where the caim was that this filter produced NO2 for reduction of the C6. It did, but so did every other catalyzed particulate filter before it.

Needless to say the USPTO issued the Patent, causing huge problems in the emissions control industry.

The entire Patent Office is incapable of performing its functions. Part of the problem is it isn't a crime to lie on an application, nor does lying invalidate a patent. Nor are damages assessed when a patent is invalidated, nor are the patent holders required to pay back license fees plus interest that they had revived before the patent invalidation occurred.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Frivolous lawsuit?
Authored by: Anonymous on Thursday, March 28 2013 @ 11:23 AM EDT
Any chance that this lawsuit can be held as frivolous?
If so, would it gain Red Hat anything?

[ Reply to This | # ]

Hey wait a sec
Authored by: inode_buddha on Thursday, March 28 2013 @ 11:54 AM EDT
Isn't this the same thing that Poir and a few other users were developing as an
argument here? that software is math?

I seem to recall that first article of his some time ago. Either way,
Congratulations on making a big point!

---
-inode_buddha

"When we speak of free software,
we are referring to freedom, not price"
-- Richard M. Stallman

[ Reply to This | # ]

memory register representation and floating-point register reA Quick And Significant Defeat ~mw
Authored by: Anonymous on Thursday, March 28 2013 @ 12:59 PM EDT
These clearly imply the involvement of hardware, i.e., a machine, including
memory and a register. Therefore, the claim passes the machine or
transformation test. Passing the machine or transformation test goes a long way
toward proving 101 eligibility. Moreover, the recited method is not abstract.

Accordingly, this is apparently not one of those cases where claim construction
was not necessary....

This will be appealed.

[ Reply to This | # ]

Rounding floating point numbers?
Authored by: rnturn on Thursday, March 28 2013 @ 01:32 PM EDT

Holy cats... I was doing stuff like that back in the early '80s while simulating the effects of different number representations (different # bits for exponents and mantissas, different sized integers, etc.) on the weightings used in agile SAW filters. I think doing that kind of thing back then would have been sufficient prior art to kill any such patent application dead dead dead. (The fact that FORTRAN was the preferred language for that work should indicate just how prior that art was.) Unfortunately, it was done under a contract (to USAF/WPAFB) and I'm pretty sure it wasn't was published in widely read journals. Even without publication, I do highly doubt that I, alone, was doing anything that was beyond what others practiced in the art would not have come up with or hadn't already come up with.

Of course the legal departments at some of these NPE companies would probably decide to patent the process of hammering on a piece of heated iron to fashion an item useful as a protective device for horses' hooves only because they hadn't done it before themselves.

[ Reply to This | # ]

And the amazing thing is...
Authored by: Anonymous on Thursday, March 28 2013 @ 01:34 PM EDT
...that the patent was thrown out, and the discussion above written, *without
even mentioning the vast quantities of prior art* on the subject.

This patent appears to cover material that can be found in any textbook on
numerical analysis...

[ Reply to This | # ]

Here is the flaw in the logic of the ruling
Authored by: Anonymous on Thursday, March 28 2013 @ 02:07 PM EDT
The ruling concludes:

"Even when tied to computing, since floating-point numbers are a
computerized numeric format, the conversion of floating-point numbers has
applications across fields as diverse as science, math, communications,
security, graphics, and games. Thus, a patent on Claim 1 would cover vast end
uses, impeding the onward march of science. Benson, 409 U.S. at 68. Under Flook,
the improvement over the standard is insufficient to validate Claim 1’s
otherwise unpatentable subject matter."


"a patent on Claim 1 would cover vast end uses, impeding the onward march
of science. "

NO! It wouldn't. Everyone can still use the old technique of rounding the
result instead of the operands.

If blocking the world from using this very particular technique is valid grounds
for declaring the method ineligible for patenting under 35 USC 101, then all
things claimed by all patents are ineligible because all patents block everyone
from using the claimed invention!

This ruling is based on nonsense and will fall.



[ Reply to This | # ]

MMR Global
Authored by: Anonymous on Thursday, March 28 2013 @ 02:25 PM EDT
Trying to do the same thing to the health IT community on a patent that should
never have been issued. Should be next up for a 12(b)(6).

[ Reply to This | # ]

  • MMR Global - Authored by: Anonymous on Tuesday, April 02 2013 @ 10:59 AM EDT
Rackspace/Red Hat Hand Uniloc A Quick And Significant Defeat ~mw
Authored by: Anonymous on Thursday, March 28 2013 @ 02:51 PM EDT
Stupid question time.

How did lawyers ever get involved with patent applications
in the first place?

It seems to me that the aplication process should be handled
by those who are demonstratedly competent in the particular
field of the proposed patent. Professional engineers,
doctors, establshed people who have PhD's, etc. Somehow
just because one has a JD doesn't make them anymore
competent to construct a patent application than my
neighbor's dog. They may know the law, but unless they
have an equivelent degree and professional experience in
the applicable subject matter, they should not be involved
at all.

[ Reply to This | # ]

Rackspace/Red Hat Hand Uniloc A Quick And Significant Defeat ~mw
Authored by: Anonymous on Thursday, March 28 2013 @ 06:05 PM EDT
I'm reminded of Tom Lehrer's New Math.

"It is more important to understand what
you are doing rather than to get the right answer".

:)

[ Reply to This | # ]

Amiga Rulz!
Authored by: Ian Al on Friday, March 29 2013 @ 05:34 AM EDT
There is great doubt in my mind whether it is technically likely that any OS or application would infringe on this patent.

My Amiga uses a Motorola 68040 processor accelerator card which integrates a hardware floating point unit. The Intel and AMD processors have had such integrated FPU hardware for many generations.

Most of the Amiga computers were supplied with 68000 or 68010 processors which did not have a built-in FPU. Here is what Wikipedia says about the 68000 series of processors.
The Motorola 68881 and Motorola 68882 were floating-point coprocessor (FPU) chips that were used in some computer systems in conjunction with the 68020 or 68030 CPUs. The addition of one of these chips added substantial cost to the computer, but added a floating point unit that could rapidly perform floating point maths calculations. At the time, this was useful mostly for scientific and mathematical software.
Some Amigas came with a 68020 or 68030, but without the FPU coprocessor. Amiga provided software maths libraries for those systems. Here is a description of the Amiga RKM math libraries.
This chapter describes the structure and calling sequences required to access the Motorola Fast Floating Point (FFP), the IEEE single-precision math libraries and the IEEE double-precision math libraries via the Amiga-supplied interfaces.

In its present state, the FFP library consists of three separate entities:

  • the basic math library,
  • the transcendental math library, and,
  • C and assembly-language interfaces to the basic math library plus FFP conversion functions.

    The IEEE single-precision, introduced in Release 2, and the double-precision libraries each presently consists of two entities: the basic math library and the transcendental math library.
  • So, my question is; which computer systems in wide use today would choose to not use the hardware FPU unit built into the processor, and which uses the standard Motorola/IEEE floating point algorithms, either for the OS or for the applications?

    I seem to remember that the math errors in Pentium and later Intel processors were to do with the built-in hardware coprocessors and not some sort of software glitch.

    Here is some info from ARM:
    Home > The Cortex-M4 Instruction Set > Floating-point instructions

    3.11. Floating-point instructions
    Even if this fabulous math was statutory matter, I think there is a vanishingly small chance that there was any widespread use of the math algorithm. Perhaps there is some specialist scientific programs that might use it. IIRC financial programs use double precision math and the advice is to not use floating point for any financial spreadsheets.

    Since the court case was fought by RedHat under its indemnity scheme, it can only be the RedHat provided software that was at issue and not some specialist scientific software running on RedHat Linux. So, what could Uniloc point to in any part of the RedHat distributions that might infringe?

    Uniloc say this about themselves:
    We have focused on technology that is incredibly complex to develop, but elegantly simple to execute. And it fits our straightforward development model. Look at many ideas. Pick an outstanding one. Patent it. Commercialize it. Reap the rewards...

    Uniloc is not a huge company in the number of people we employ. But we hope to make a huge impact on the way people live and the way companies operate. Innovation doesn’t need a big team to thrive, just the right team. And we think we have it here at Uniloc.
    One wonders how this small team has time to develop many ideas that are incredibly complex to develop. They sound just like a Non Practising Entity with a patent extortion plan.

    ---
    Regards
    Ian Al
    Software Patents: It's the disclosed functions in the patent, stupid!

    [ Reply to This | # ]

    Someone seems to be listeing.
    Authored by: rsteinmetz70112 on Friday, March 29 2013 @ 09:26 AM EDT
    Unlike the Federal District, someone in the Eastern District of Texas seems to
    be listening to the Supreme Court and taking their opinions seriously. But
    perhaps they are also reacting to the widespread criticism of their court.

    ---
    Rsteinmetz - IANAL therefore my opinions are illegal.

    "I could be wrong now, but I don't think so."
    Randy Newman - The Title Theme from Monk

    [ Reply to This | # ]

    The multiple fallacies of State Street
    Authored by: macliam on Friday, March 29 2013 @ 09:56 AM EDT

    I checked the date of patent 5,892,697 asserted against Rackspace. The patent application was filed on December 19, 1995, and the patent issued on April 6, 1999.

    The issue date is almost a year after the notorious decision of the Federal Circuit in State Street Bank & Trust Co. v. Signature Financial Group, 149 F. 3d 1368 (1988)

    I would suggest that any patent examiner who was holding back on these claims had no choice but to pass the claims following the State Street ruling.

    The sins against accepted principles of statutory interpretation in Judge Rich's opinion in State Street seem so numerous, and so gross, that one might expect that they would cause Justice Scalia's hair to stand up on end on reading the opinion. Justice Scalia is a Textualist when it comes to statutory interpretation, and the approach of the Supreme Court to statutory interpretation is set out in Statutory Interpretation: General Principles and Recent Trends.

    First, for context, the nature of the ‘invention’ in State Street:

    “Signature is the assignee of the '056 patent which is entitled ‘Data Processing System for Hub and Spoke Financial Services Configuration.’ The '056 patent issued to Signature on 9 March 1993, naming R. Todd Boes as the inventor. The '056 patent is generally directed to a data processing system (the system) for implementing an investment structure which was developed for use in Signature's business as an administrator and accounting agent for mutual funds. In essence, the system, identified by the proprietary name Hub and Spoke®, facilitates a structure whereby mutual funds (Spokes) pool their assets in an investment portfolio (Hub) organized as a partnership. This investment configuration provides the administrator of a mutual fund with the advantageous combination of economies of scale in administering investments coupled with the tax advantages of a partnership.” State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d. 1370 (1998)

    Apparently the patent ‘preemted’ computer-implemented systems implementing provisions of the U.S. Tax Code. The specification discloses much movement of money, and a number of flowcharts depicting ‘software routines’ and ‘the flow of information through modules of software’ (specified in terms of the business transactions involved, with no coding details). CLS v. Alice really is State Street redux.

    The holding of the Federal Circuit in State Street:

    “We reverse and remand because we conclude that the patent claims are directed to statutory subject matter.” (Ibid.)

    Of course it is essential to show that a computer is needed for this useful invention:

    “It is essential that these calculations are quickly and accurately performed. In large part this is required because each Spoke sells shares to the public and the price of those shares is substantially based on the Spoke's percentage interest in the portfolio. In some instances, a mutual fund administrator is required to calculate the value of the shares to the nearest penny within as little as an hour and a half after the market closes. Given the complexity of the calculations, a computer or equivalent device is a virtual necessity to perform the task.” State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d. 1371 (1998)

    An accountant with an account book or a spreadsheet program, or an army of clerks in a counting house, could not achieve what this invention can achieve.

    “Each claim component, recited as a ‘means’ plus its function, is to be read, of course, pursuant to § 112, ¶ 6, as inclusive of the ‘equivalents’ of the structures disclosed in the written description portion of the specification. Thus, claim 1, properly construed, claims a machine, namely, a data processing system for managing a financial services configuration of a portfolio established as a partnership, which machine is made up of, at the very least, the specific structures disclosed in the written description and corresponding to the means-plus-function elements (a)-(g) recited in the claim. A ‘machine’ is proper statutory subject matter under § 101. We note that, for the purposes of a § 101 analysis, it is of little relevance whether claim 1 is directed to a ‘machine’ or a ‘process,’ as long as it falls within at least one of the four enumerated categories of patentable subject matter, ‘machine’ and ‘process’ being such categories.” State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d. 1372 (1998)

    The claims are expressed in ‘means plus function’ language, so Judge Rich needs to find ‘structure’ in the specification to meet the requirements of § 112 ¶ 6. Judge Rich duly finds the structure: “a personal computer including a CPU”; “a data disk”;“an arithmetic logic circuit configured to prepare the data disk to magnetically store selected data”;“an arithmetic logic circuit configured to retrieve information from a specific file, calculate incremental increases or decreases based on specific input, allocate the results on a percentage basis, and store the output in a separate file”;“an arithmetic logic circuit configured to…” etc. (At this point, a disciple of Judge Rich would retort that proving that the specification provides sufficient information to enable the skilled artisan to make and use the invention is a question of enablement under § 112, not subject-matter eligibility under § 101.)

    Note that it doesn't matter whether the claim is drawn to a machine or to a process (according to Judge Rich). Provided that the claim is drawn to some sort of product/process chimaera, that is sufficient for meeting the ‘subject matter’ requirement.

    This does not end our analysis, however, because the court concluded that the claimed subject matter fell into one of two alternative judicially-created exceptions to statutory subject matter. The court refers to the first exception as the ‘mathematical algorithm’ exception and the second exception as the ‘business method’ exception. Section 101 reads:
    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.
    The plain and unambiguous meaning of § 101 is that any invention falling within one of the four stated categories of statutory subject matter may be patented, provided it meets the other requirements for patentability set forth in Title 35, i.e., those found in §§ 102, 103, and 112, ¶ 2. State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d. 1372 (1998)

    Thus Title 35 has shrunk down to sections 102, 103 and 112. What happened to all the other sections of the statute?

    Also what happened to the requirement that the purported inventor must ‘invent or discover‘ something ‘new and useful’?

    The principles of statutory interpretation (or ‘canons of construction’) that guide the Supreme Court (see above), include the following:

    Statutory Language Not to be Construed as ‘Mere Surplusage’: “A basic principle of statutory interpretation is that courts should ‘give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.’ The modern variant is that statutes should be construed ‘so as to avoid rendering superfluous’ any statutory language. A related principle applies to statutory amendments: there is a ‘general presumption’ that, ‘when Congress alters the words of a statute, it must intend to change the statute's meaning.’

    It would appear to me that, under Judge Rich's interpretation of the section 101, it would be possible to paraphrase that section as follows:

    Whoever devises something useful falling within one of the four stated categories shall receive a patent, subject only to the requirements of §102, §103 and §112 ¶ 2.

    Well that cuts out a lot of ‘surplusage’! Can we cut out a bit more? Time for some legislative intent:

    The repetitive use of the expansive term ‘any’ in § 101 shows Congress's intent not to place any restrictions on the subject matter for which a patent may be obtained beyond those specifically recited in § 101. Indeed, the Supreme Court has acknowledged that Congress intended § 101 to extend to ‘anything under the sun that is made by man.’ Diamond v. Chakrabarty, 447 U.S. 303, 309, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980); see also Diamond v. Diehr, 450 U.S. 175, 182, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981). Thus, it is improper to read limitations into § 101 on the subject matter that may be patented where the legislative history indicates that Congress clearly did not intend such limitations. See Chakrabarty, 447 U.S. at 308, 100 S.Ct. 2204 (‘We have also cautioned that courts should not read into the patent laws limitations and conditions which the legislature has not expressed.’). State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d. 1373 (1998)

    Well the wording essentially dates back to the patent acts of 1790 and 1790, the latter of which was apparently drafted by Thomas Jefferson. “The Act embodied Jefferson's philosophy that ‘ingenuity should receive a liberal encouragement.’ 5 Writings of Thomas Jefferson 75-76 (Washington ed. 1871).” Diamond v. Chakrabarty, 308-309. We can then move forward to legislative intent, as evidenced in the deliberations of Congress in 1952. What was said in the debates?

    In accepting the Jefferson Medal, Judge Rich explained how the Patent Act, which he and Pat Federico had drafted in 1952, came into being. The Codification Counsel to the Coordination Subcommittee of the Judiciary Committee of the House, Charlie Zinn, “had worked on several codifications for the Judiciary Committee.” As Judge Rich said of the Committee: “When it got a law all written up and approved, it liked to see it enacted, and Charlie knew how you got it done. You got it on a Consent Calendar at the appropriate moment, and that meant no floor debate. It was because of this little technique that you got a new patent statute when you did.”

    As Judge Rich put it: “And that is the way you got a lot of your laws. It is a great way of conserving hot air. Can you imagine what debates on the floor of the House or Senate about most of the cardinal points of patent law would sound like?”

    Judge Rich continued, “[t]he New Patent Act went through both houses on consent calendars, and those houses relied on the unanimous recommendations of their respective committees, and when Truman signed the bill, we got the new law.”

    Legislative intent was supplied later, as Judge Rich explained, in the form of the Reviser's Notes, included with the Bill, which were written by Pat Federico in consultation with Giles Rich. Years later Judge Rich wrote a memorial article to Pat Federico after his death in 1982, just as I write this memorial today.

    Rememberances and Memorial: Judge Giles S. Rich, 1904-1999, by Neil A. Smith, Berkeley Technology Law Journal

    So where did the “everything under the sun” cite bite originate?

    The University of New Hampshire School of Law maintains a History Archive which includes the reports of the Senate and the House recommending the 1952 Act.

    Part II relates to patentability of inventions and the grant of patents.

    Referring first to section 101, this section specifies the type of material which can be the subject matter of a patent. The present law states that any person who has invented or discovered any 'new and useful art, machine, manufacture, or composition of matter, or any new or useful improvement thereof: may obtain a patent. That language has been preserved except that the word 'art' which appears in the present statute has been changed to the word 'process.' 'Art' in this place in the present statute has a different meaning than the words 'useful art' in the Constitution, and a different meaning than the use of the word 'art' in other places in the statutes, and it is interpreted by the courts to be practically synonymous with process or method. The word 'process' has been used to avoid the necessity of explanation that the word 'art' as used in this place means 'process or method,' and that it does not mean the same thing as the word 'art ' in other places.

    The definition of 'process' has been added in section 100 to make it clear that 'process or method' is meant, and also to clarify the present law as to the patentability of certain types of processes or methods as to which some insubstantial doubts have been expressed.

    Section 101 sets forth the subject matter that can be patented, 'subject to the conditions and requirements of this title.' The conditions under which a patent may be obtained follow, and section 102 covers the conditions relating to novelty.

    A person may have 'invented' a machine or a manufacture, which may include anything under the sun that is made by man, but it is not necessarily patentable under section 101 unless the conditions of the title are fulfilled.

    The final words were quoted to validate ‘legislative intent’ in the Supreme Court case Diamond v. Chakrabarty. The case concerned whether a living organism, namely a genetically-engineered bacterium useful for cleaning up oil spills, was a manufacture eligible for protection under the patent laws. In such a context, the “everything under the sun that is made by man” is obviously relevant to those who find legislative history useful.

    Nevertheless Justice Rehnquist parroted the cite bite in Diehr:

    “Not until the patent laws were recodified in 1952 did Congress replace the word ‘art’ with the word ‘process.’ It is that latter word which we confront today, and in order to determine its meaning we may not be unmindful of the Committee Reports accompanying the 1952 Act which inform us that Congress intended statutory subject matter to ‘include anything under the sun that is made by man.’ S. Rep. No. 1979, 82d Cong., 2d Sess., 5 (1952); H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952).” Diamond v. Diehr, 450 U.S. 182 (1981)

    Note the sleight of hand! The original quote pointed out that someone who has ‘invented’ a machine or a manufacture cannot get a patent for it unless they satisfy the conditions of the statute. This was applied to Justice Rehnquist to justify the broad patentability of processes.

    The quotation is in fact a slight paraphrase of a remark (transposing the words ‘under section 101’) that was made in the Statement of P. J. Federico, Examiner in Chief, United States Patent Office, Washington D. C. on 1 3th June 1951 to the Subcommittee of the Committee on the Judiciary House of Representatives, (page 37).

    Hardly convincing evidence of legislative intent on the part of members of Congress. The ‘intent’ appears to be that of P.J. Federico and Giles S. Rich.

    Back to State Street Bank & Trust Co. v. Signature Financial Group. It is first necessary to put mathematical algorithms in their place:

    The Supreme Court has identified three categories of subject matter that are unpatentable, namely ‘laws of nature, natural phenomena, and abstract ideas.’ Diehr, 450 U.S. at 185, 101 S.Ct. 1048. Of particular relevance to this case, the Court has held that mathematical algorithms are not patentable subject matter to the extent that they are merely abstract ideas. See Diehr, 450 U.S. 175, 101 S.Ct. 1048, passim; Parker v. Flook, 437 U.S. 584, 98 S.Ct. 2522, 57 L.Ed.2d 451 (1978); Gottschalk v. Benson, 409 U.S. 63, 93 S.Ct. 253, 34 L.Ed.2d 273 (1972). In Diehr, the Court explained that certain types of mathematical subject matter, standing alone, represent nothing more than abstract ideas until reduced to some type of practical application, i.e., ‘a useful, concrete and tangible result.’ Alappat, 33 F.3d at 1544, 31 USPQ2d at 1557.

    Note that even Judge Rich in State Street acknowledges that “laws of nature, natural phenomena, and abstract ideas.” are not patentable. But he surreptitiously transitions to home ground in the form of his own opinion for the Federal Circuit Court in In Re Alappat 33 F.3d 152. 1544 (1994). The unwary reader might well suppose that the requirement for ‘a useful, concrete and tangible result.’ derives from one of the Supreme Court cases.

    So now Judge Rich is in position to launch one of his poisoned darts at the dreaded mathematical algorithms. He claims that abstract equals useless:

    “Unpatentable mathematical algorithms are identifiable by showing they are merely abstract ideas constituting disembodied concepts or truths that are not ‘useful.’ From a practical standpoint, this means that to be patentable an algorithm must be applied in a ‘useful’ way. In Alappat, we held that data, transformed by a machine through a series of mathematical calculations to produce a smooth waveform display on a rasterizer monitor, constituted a practical application of an abstract idea (a mathematical algorithm, formula, or calculation), because it produced ‘a useful, concrete and tangible result’—the smooth waveform.” State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d. 1373 (1998)

    Time to proclaim the new charter for the patentability of information and information processing for the foreseeable future:

    Today, we hold that the transformation of data, representing discrete dollar amounts, by a machine through a series of mathematical calculations into a final share price, constitutes a practical application of a mathematical algorithm, formula, or calculation, because it produces ‘a useful, concrete and tangible result’—a final share price momentarily fixed for recording and reporting purposes and even accepted and relied upon by regulatory authorities and in subsequent trades.

    But hang on! Not so fast! What about Benson and Flook, not to mention the Freeman-Walker-Abele test, hitherto the test used by the Federal Circuit to isolate those unfortunate ‘inventions’ that might fall prey to the ravening jaws of Benson and Flook?

    The district court erred by applying the Freeman-Walter-Abele test to determine whether the claimed subject matter was an unpatentable abstract idea. The Freeman-Walter-Abele test was designed by the Court of Customs and Patent Appeals, and subsequently adopted by this court, to extract and identify unpatentable mathematical algorithms in the aftermath of Benson and Flook. See In re Freeman, 573 F.2d 1237, 197 USPQ 464 (CCPA 1978) as modified by In re Walter, 618 F.2d 758, 205 USPQ 397 (CCPA 1980) State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d. 1373-1374 (1998)

    But that is all past history now, thank goodness! Thank you, Justice Rehnquist:

    After Diehr and Chakrabarty, the Freeman-Walter-Abele test has little, if any, applicability to determining the presence of statutory subject matter. As we pointed out in Alappat, 33 F.3d at 1543, 31 USPQ2d at 1557, application of the test could be misleading, because a process, machine, manufacture, or composition of matter employing a law of nature, natural phenomenon, or abstract idea is patentable subject matter even though a law of nature, natural phenomenon, or abstract idea would not, by itself, be entitled to such protection. The test determines the presence of, for example, an algorithm. Under Benson, this may have been a sufficient indicium of nonstatutory subject matter. However, after Diehr and Alappat, the mere fact that a claimed invention involves inputting numbers, calculating numbers, outputting numbers, and storing numbers, in and of itself, would not render it nonstatutory subject matter, unless, of course, its operation does not produce a ‘useful, concrete and tangible result.’” (citation omitted) State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d. 1374 (1998)

    And “in one bound, Jack was free!”.

    So, Diehr and Chakrabarty changed the law established by the Supreme Court in Benson and Flook, so that the latter case were no longer to be considered as good law?

    What was so significant about Chakrabarty? The case concerned patentability of a genetically-engineered bacterium. Justice Douglas, who delivered the Opinion of the Court in Flook was one of the majority in Chakrabarty. Chief Justice Burger mentioned Flook several times in his Opinion of the Court in Chakrabarty, and said that he found nothing there to contradict Chakrabarty.

    What about Diehr? The real issue in Diehr, it seems to me, is whether there was any inventive concept of any description that would merit the award of a patent. The computer in Diehr repeatedly recomputed the curing time using the Arrhenius Equation that was prior art almost a century old at the time of Diehr, and a Law of Nature to boot! The numerical procedure for calculating the curing time simply involved calculating the value of the exponential function using the usual Taylor Series that goes back to the era of Newton and Leibniz three centuries ago. To suggest that performing this calculation on a computer in 1981, or in 1975 when the patent was filed, was innovative is ludicrous. At that time there would have been three decades or so of prior art on computing such functions with a digital computer. Thus, if there was any inventive concept at all, must have been the concept of constantly monitoring the activation energy constant with a rheometer and the temperature with some sort of thermostat and feeding the information into the computer to calculate an updated curing time. Thus, if there were enough to merit a patent, the subject matter would fall well within the scope of Section 101.

    By contrast, Flook was about as ‘abstract’ as ‘abstract ideas’ can be. There is a process. (Improvements to processes are patentable inventions, subject to the conditions and requirements of the Patent Statute.) The state of the process is measured using certain process variables (such a temperature, pressure, concentration of chemicals, neutron density, etc.). Such a process variable has a normal value B0 and a critical value B0 + K at which the process may become unstable and dangerous. There is an alarm system. But rather than waiting till the critical level is reached before setting off the alarm, one measures the value of the process variable at some given time, and sets an alarm limit (say) 40% of the way to the critical value. Thus one gauges the process variable at regular intervals and resets alarm limits accordingly. If the alarm limit has been reached, steps would be taken to damp down the process. This is surely a useful idea, since, if implemented, the process will run more smoothly, with fewer serious alarms. The method is abstract, because is concerned with the safe operation of an abstract process whose state is gauged using process variables, and, in this context, the ideas of process and process variables are clearly abstract ideas that have been abstracted from reflection on a variety of industrial processes and physical and chemical quantities. And the method for updating the alarm limit barely qualifies to be described as mathematical, though it is certainly itself abstract. Flook claimed this method of updating alarm limits, but in the field of catalytic conversion of hydrocarbons. Thus if you employed this method of updating alarm limits in a nuclear reacture you would not infringe the patent, but if you employed it in the oil or gas industry for a process of catalytic conversion, you would infringe the patents.

    Both Benson and Flook reaffirmed the long-standing prohibition in the common law against patenting basic principles and the “handiwork of nature”, and warned against the very real dangers of ‘preemption’ that would result if this prohibition were ignored. There was nothing in either Chakrabarty or Diehr to contradict the principles laid down in Benson or Flook.

    To return again to State Street:

    “The question of whether a claim encompasses statutory subject matter should not focus on which of the four categories of subject matter a claim is directed to—process, machine, manufacture, or composition of matter—but rather on the essential characteristics of the subject matter, in particular, its practical utility. Section 101 specifies that statutory subject matter must also satisfy the other ‘conditions and requirements’ of Title 35, including novelty, nonobviousness, and adequacy of disclosure and notice.” State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d. 1374 (1998)

    Is the above consistent with the principle that statutory language is not to be construed as ‘mere surplusage’?

    Judge Rich moves on to discuss whether business methods are exempt:

    As an alternative ground for invalidating the '056 patent under § 101, the court relied on the judicially-created, so-called ‘business method’ exception to statutory subject matter. We take this opportunity to lay this ill-conceived exception to rest. Since its inception, the ‘business method’ exception has merely represented the application of some general, but no longer applicable legal principle, perhaps arising out of the ‘requirement for invention’—which was eliminated by § 103. Since the 1952 Patent Act, business methods have been, and should have been, subject to the same legal requirements for patentability as applied to any other process or method.

    In what way was the requirement for invention eliminated in § 103?

    Back to the Senate committee report from 1952:

    Although the principal purpose of the bill is the codification of title 35, United States Code, and involves simplification and clarification of language and arrangement, and elimination of obsolete and redundant provisions, there are a number of changes in substantive statutory law. These will be explained in some detail in the revision notes keyed to each section which appear in the appendix of this report. The major changes or innovations in the title consist of incorporating a requirement for invention in sec. 103 and the judicial doctrine of contributory infringement in sec. 271.
    Section 103, for the first time in our statute, provides a condition which exists in the law and has existed for more than 100 years, but only by reason of decisions of the courts. An invention which has been made, and which is new in the sense that the same thing has not been made before, may still not be patentable if the difference between the new thing and what was known before is not considered sufficiently great to warrant a patent. That has been expressed in a large variety of ways in decisions of the courts and in writings. Section 103 states this requirement in the title. If refers to the difference between the subject matter sought to be patented and the prior art, meaning what was known before as described in section 102. If this difference is such that the subject matter as a whole would have been obvious at the time to a person skilled in the art, then the subject matter cannot be patented.

    To those who find legislative history useful, the above only shows that “a requirement for invention” has been incorporated into section 103. It constitutes scant evidence to prove that the Act 1952 eliminated any necessity for an inventive concept in a purported invention for which patent protection was sought.

    That is enough for now! I had intended this to be a relevant short post on how the PTO had no option but to approve these seemingly trival patents following State Street. I had not intended a massively long posting. I shall leave the final word with Justices Breyer and Scalia:

    “Fourth, although the machine-or-transformation test is not the only test for patentability, this by no means indicates that anything which produces a ‘useful, concrete, and tangible result,’ State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368, 1373 (C.A.Fed.1998), is patentable. ‘[T]his Court has never made such a statement and, if taken literally, the statement would cover instances where this Court has held the contrary.” Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., 548 U.S. 124, 136, 126 S.Ct. 2921, 165 L.Ed.2d 399 (2006) (BREYER, J., dissenting from dismissal of certiorari as improvidently granted); see also, e.g., O'Reilly v. Morse, 15 How. 62, 117, 14 L.Ed. 601 (1854); Flook, supra, at 590, 98 S.Ct. 2522. Indeed, the introduction of the ‘useful, concrete, and tangible result’ approach to patentability, associated with the Federal Circuit's State Street decision, preceded the granting of patents that ‘ranged from the somewhat ridiculous to the truly absurd.’ In re Bilski, 545 F.3d 943, 1004 (C.A.Fed.2008) (Mayer, J., dissenting) (citing patents on, inter alia, a ‘method of training janitors to dust and vacuum using video displays,’ a ‘system for toilet reservations,’ and a ‘method of using color-coded bracelets to designate dating status in order to limit the embarrassment of rejection’); see also Brief for Respondent 40-41, and n. 20 (listing dubious patents). To the extent that the Federal Circuit's decision in this case rejected that approach, nothing in today's decision should be taken as disapproving of that determination. See ante, at 3231; ante, at 3232, n. 1 (STEVENS, J., concurring in judgment).’ Bilski v. Kappos, 130 S.Ct. 3259 (2010)

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    What I don't (yet) get is...
    Authored by: rnturn on Friday, March 29 2013 @ 10:02 AM EDT

    ... how they selected Rackspace as the target of this patent suit?

    Was it their plan to sue everybody who used a computer and Rackspace -- with all those systems and, probably, multiprocessor motherboards -- looked like they would be a nice target: N processors that might be doing FP calculations = N patent violations = triple damages (or something)?

    --
    Rick

    [ Reply to This | # ]

    April Fools!
    Authored by: Anonymous on Monday, April 01 2013 @ 02:45 PM EDT
    ...

    [ Reply to This | # ]

    What Patent Lawyers are willing to argue
    Authored by: Anonymous on Monday, April 01 2013 @ 05:16 PM EDT

    Plaintiffs reiterate that Claim 1 recites no particular mathematical formula.
    My facetious (oh I hope it's facetious and not real) interpretation:
      2+2=4 isn't math because I say it isn't!
    How about the old "english math":
      Sally had two apples, John gave Sally two more... figuring out how many apples Sally now has is not math!

    RAS

    [ Reply to This | # ]

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