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| Authored by: Ian Al on Saturday, March 30 2013 @ 05:39 AM EDT |
Your comment helped me refine my thoughts on the original posting.
The
posting includes:‘However inclusive may be the general language of a
statute, it will not be held to apply to a matter specifically dealt with in
another part of the same enactment.’
§100 says that the meanings
of the words in §101 are not the generally accepted dictionary meanings, but are
refined as stated in §100 of the Act. The grammar would be logically flawed in a
general document, but makes sense as a legal clarification of what the language
means in the context of this Act.
§102 says:A patent for a
claimed invention may not be obtained, notwithstanding that the claimed
invention is not identically disclosed as set forth in section 102, if the
differences between the claimed invention and the prior art are such that the
claimed invention as a whole would have been obvious before the effective filing
date of the claimed invention to a person having ordinary skill in the art to
which the claimed invention pertains. Patentability shall not be negated by the
manner in which the invention was made.
§100(a) (The term
“invention” means invention or discovery.) now becomes very important, because
the Act means that patentability isn't limited to someone using special skill in
the art to come up with something that is not obvious. Someone with modest
understanding of the art can use a trial and error discovery process akin to
alchemy and, if they discover something that meets all the legal requirements,
can be awarded a patent.
The original quote of State Street
is: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
That
is, actually, bang on. It does not say that anything under the sun is patentable
and it does not say that the invention or discovery can fall within one or
more of the four stated categories. Further, §102 says that the invention
has to be truly new and not just a modest amendment of what went before. The
only aspect that the law is quiet upon is whether the invention is significantly
more useful than anything that went before. My IANAL view is that §101
should be ascribed its general meaning.
The invention being patented
must be significantly more novel and useful compared with what when
before in order to be awarded a patent. That eliminates the patenting of any
work-around of an existing patent that does not achieve anything significantly
more useful or is not significantly more novel as an improvement on the original
invention. It also eliminates innovations that are trivial in novelty or utility
compared with the pre-existing invention being improved upon. Almost all of the
mobile phone patents I have seen are eliminated by this part of the
law.
This also means that, according to the law and according to Judge
Rich in State Street, a system and a method invention is unpatentable
because it fails to fall 'within one of the four stated categories of statutory
subject matter'. I am astonished how much selective quoting was indulged in by
Judge Rich and his peers of both his opinion in State Street and the
legislation to which, I understand, he was a major contributor.
He and
his peers have left a legacy of flawed opinions and broken patents that fail to
meet the standards set in State Street, by deliberately misconstruing the
opinion to meet their own view of what the law should have
permitted.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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| Authored by: macliam on Saturday, March 30 2013 @ 06:48 AM EDT |
Compare these ‘definitions’ in the Patent Statute with the
corresponding section of definitions in the Copyright statute: 17 U.S.C. § 101.
So far as I could tell, each word listed there has a full non-circular
definition.
It may be the sections of the 1952 act were poorly drafted,
were not scrutinized all that carefully by the members of the judiciary
committees, and went through the houses of Congress essentially on the
nod.
Maybe Judge Rich's approach to the statute reflected the norms of a
different era when judges and Justices were less concerned with textual
minutiae, but took the attitude that their job of ‘interpreting’ the
law actually amounted to creating and extending the law, justified by assertions
concerning (real or imaginary) legislative intent.
And maybe the greater
emphasis on principles of statutory interpretation results from the
‘ideological divide‘ on the Supreme Court, where majorities would be
formed by convincing fellow Justices that a particular construction more truly
reflects the intent of the statute? I think it is worth noting how much effort
and thought seems to have gone into the construction (or interpretation) of the
words ‘lawfully made under this title’ in the recent Kirtsaeng v.
John Wiley case. [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Sunday, March 31 2013 @ 07:03 AM EDT |
"They may be relevant but so far as definitions go, they are
self-referential
nonsense."
Don't be childish. The definisions are not nonsense. You overload
operators don't you? 35 USC 100 is liket a header over loading certain
words with additional meaning. It could have been written --process
ALSO means art or method--. Would that have been easier for you to
understand? It says process means process because even with that clear
statement all inclusive statement, people such as yourselves say process
doesnt mean process because it doesnt mean mathematcial process or
doesnt mean mental process or doesnt mean some other carved out
exception. YES IT DOES! PROCESS MEANS PROCESS. MOREOVER, IT ALSO
MEANS ART AND IT ALSO MEANS METHOD ... just in case you were gonna
argue that there was a differece betwern a process and a method...[ Reply to This | Parent | # ]
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