I agree with you, but you missed my satire as with 'calculating the algorithm'
and 'displaying the human condition' being the patented inventive concept in the
invention.
You saidA point you may be missing, is that a
process claim may comprise (i.e., involve) use of a computer or microprocessor
for some data processing. This does not mean that the claim only involves data
processing. There may well be additional elements or steps in the claim (e.g.,
curing rubber), and the claim needs to be assessed as a whole. The instruction
is directing examiners to determine whether, in the case of a claim to a
computer-implemented process, the claim is not a statutory process but is drawn
to an abstract idea (in the sense of Bilski) or a law of
nature.
Indeed I did not. The example citing Diehr was always on
my mind. Diehr made the specific point that the math carried out by the computer
was only protected as part of the whole process.
§100 defines 'process'
as including method. One of the examples is a method of using a computer to
display images from X-ray scans. Diehr should mean that the computer part of the
method should only be protected as part of the specific production of the
displayed image. The example suggests that the process of producing any image
produced by using the law of nature of X-rays and processing the X-ray image
data is protected by the patent. It's a bit like Diehr claiming protection of
the production of any heat moulded product and not just the inventive concept of
using the math for cured, precision, rubber components.
The USPTO failed to
consider Flook. They missed the points that there is nothing new about
displaying electrical signals generated by passing X-rays through a body on a
display screen. There was nothing new about processing image data on a computer
and displaying a more informative image. The math algorithms used to do this
were not new. They should have come to the same conclusion as the
Supremes:Here it is absolutely clear that respondent's application
contains no claim of patentable invention. The chemical processes involved in
catalytic conversion of hydrocarbons are well known, as are the practice of
monitoring the chemical process variables, the use of alarm limits to trigger
alarms, the notion that alarm limit values must be recomputed and readjusted,
and the use of computers for "automatic monitoring-alarming."
Respondent's application simply provides a new and presumably better
method for calculating alarm limit values. If we assume that that method was
also known, as we must under the reasoning in Morse, then respondent's claim is,
in effect, comparable to a claim that the formula 2(pi)r can be usefully applied
in determining the circumference of a wheel.
As the Court of Customs
and Patent Appeals has explained, "if a claim is directed essentially to a
method of calculating, using a mathematical formula, even if the solution is for
a specific purpose, the
claimed method is nonstatutory."
I think
you are right that 'reciting' is an element of the legal patent art.
I think it means that a mathematical algorithm is included in the
claim, though the claim may well include other non-mathematical
elements.
Diehr makes it clear that the claim of the mathematical
algorithm executed on a computer is only protected as part of the whole process
or method. As we have discussed, before, the courts take each claim as an
invention in its own right and permit it to be protected with damages of
beeeelions of dollars.
Finally, I draw your attention to the following
Guideline examples:Examples of this type of claimed statutory
process include the following:
A computerized method of optimally
controlling transfer, storage and retrieval of data between cache and hard disk
storage devices such that the most frequently used data is readily
available.
A method of controlling parallel processors to
accomplish multi-tasking of several computing tasks to maximize computing
efficiency.
These are both methods of constructing a machine (in
the eyes of the Supreme Court and not in the eyes of most Groklaw readers). The
method of making the machine is to install software on a general purpose
computer that 'executes' the method. §100(b) says:(b) The term
“process” means process, art or method, and includes a new use of a known
process, machine, manufacture, composition of matter, or
material.
Which means that a process or method of manufacture or
achievement may involve the use of a known machine such as an existing
general purpose computer.
§101 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
The
examples are contrary to the law in that they suggest that machines produced by
a patented method are themselves protected by the patent. It's like saying that
the precision, moulded, rubber components in Diehr are protected by the
patent.
All this avoids the other issue that installing software on an
existing general purpose computer does not produce a patent protectable new and
improved machine.--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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