I read this from the Patent Law Forum link entitled 'How Signal Claims Can Clear
the “Abstract Idea” Hurdle' that you gave.
I think what the author was
considering is revealed by the following extracts.The propagated
signal, which has been used to encode software, watermarks, and other data, is
positioned precisely in one such questionable area of patent-eligibility. In its
most basic claim form (“a signal”), the signal has been termed an abstract
idea.
and
Historically, courts have allowed signals
that have demonstrated physical qualities. The Supreme Court in Dolbear v.
American Bell Tel. Co. held that electricity could be patentable subject matter.
Bell’s invention controlled the electricity force, which involved real, physical
effects.
The article continues:
The USPTO, notably,
has previously held an expansive view of allowing computer readable media other
than non-transitory computer disks. In 1996, the idea of a propagated signal
claim was widely unknown and under-appreciated in the software realm. However,
after releasing the Computer-Related Invention Guidelines (“Guidelines”), the
USPTO also released Claim Examples to train examiners how to properly apply the
Guidelines. These examples included a section on Compression and Encryption
inventions. Claim 13, entitled Automated Manufacturing Plant, set forth the use
of a signal claim.
A computer data signal embodied in a carrier wave
comprising:
a. a compression source code segment comprising . . .
[recites self-documenting source code]; and
b. an encryption source
code segment comprising . . . [recites self-documenting source
code].
In this example, the USPTO instructions explained that the
“computer data signal” comprised “specific software embodied on a
computer-readable medium” and a “specific machine or manufacture.” This computer
data signal controlled physical processes of the automated manufacturing plant.
Today’s USPTO should allow propagated signals as articles of manufacture because
of the signals’ physical influence.
How they got to where they are
in this article, defeats me. Why they got to where they are is quite obvious!
However, I can see where they started to go wrong. Bell's patented invention was
a physical machine that propagated electrical signals (skipping over the fact
that the signal had signs embedded in it).
I am surprised at the
dreadful lack of engineering application in the USPTO's example. The description
of the invention given was, 'This computer data signal controlled physical
processes of the automated manufacturing plant'. The only engineering
explanation is that there is a computer device which generates and propagates an
electrical signal, with embedded control signs, messages or codes, to the
manufacturing plant which 'interprets' them as manufacturing instructions. BTW.
is it an 'automated' manufacturing plant if it needs the computer to operate it,
remotely?
From section §101, both the computer generating the
electrical signal and the plant responding to the signal might be the
patentable subject matter of machines. From the Morse case, we know that the
Supreme Court rejects patenting of a particular signal/sign set and, presumably,
any machine sending or receiving the specific set if that was the only inventive
concept. I assume this is the predecessor of the bar on patenting transitory
signals.
This would seem to exclude the generation of signals as a
manufacture, as well, especially if the signal/sign set is non-specific.
Otherwise, it would permit a single patent to give a monopoly on any radio or
landline transmitter or receiver of electrical signals. The citation of the Bell
machine invention does not provide a precedent for patenting of the control of
electricity. It only gives precedent for the patentability of an electrical
machine invention.
Claim 13 and the subset a. and b. are, of course,
meaningless. I think anyone skilled in the art of writing software source code
would have a problem controlling a manufacturing plant by embedding their source
code in a propagated electrical signal.
All this confused thinking
seems to stem from a refusal to consider an invention to see whether the claim
falls within one of the four enumerated categories of patentable subject
matter recited in 35 U.S.C. § 101 (process, machine, manufacture or composition
of matter).
In their attempts to patent more than is permitted in §
101 and its judicial exceptions, they take each aspect of making and operating
the invention and see whether it can be interpreted as any statutory
subject matter. So we get the Allen v. World and the Apple Siri patents covering
transitory signals between a multiplicity of client and server machines
searching databases by a multiplicity of methods and displaying the results in
indefinite ways. The transitory communication signals are, presumably, a
manufacture, the servers and client displays are, presumably, machines, the
database searching is several methods and the method of display is... another
method. § 101 only permits the invention to be one of the four permissible,
patentable inventions.
Even if the invention is constrained to one of
the patentable subject matters, it must be one invention and not a combination
of more than one. Both the Apple and Allen patents claim methods for searching
and methods of communicating and methods of display. KSR v. Teleflex
specifically bans such conflation of prior inventions.
Please continue
to provide these illuminating links, but have a care for my blood
pressure.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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