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| Authored by: Tolerance on Tuesday, February 12 2013 @ 04:37 PM EST |
Okay ... here we go. I didn't put the word "processes"
in quotes because the
Constitution used a word which carried
that meaning to contemporaries -
"discoveries".
Word meanings change of course; the words of the
so-called
copyright clause had for long been understood to include
art
or process; one reason the 'founding
fathers' didn't use the word
'manufacture' but rather
'discovery'. It took Morse's case, though, to trigger
the appearance of 'process' in statute.
SCOTUS defines what the
constitution means as law, and they
declared when the issue arose that
discoveries include what
we today call processes. SCOTUS has a unique position
because
it's a coequal branch of government whose function is to
declare what
words mean in the context of constitutional
law.
The series of
decisions early in the nineteenth century,
where SCOTUS read the later word
'process' into the meaning
of "discovery", included the one (O'Reilly v. Morse)
which
allowed a patent claim for Morse's code - in fact that's
been called the
first software patent. That interpretation
is what allowed Samuel Morse to
claim a process. As the
first part of his telegraph he
claimed:
"First. A system of signs by which numbers, and
consequently
words and sentences, are signified.
"
Elaborating on this in the seventh claim, Morse used the
word "process":
"7thly. The mode and process ... as described
in the
foregoing specification."
This was disputed by a rival
(O'Reilly) but approved by
SCOTUS as being included by "discovery", which they
called .
"a new and useful art" and not abstract:
"If the
result of this application be a new and useful art,
... how can it be said
that the claim is for a principle or
an abstraction?"
In
particular, the 'code' claim of Morse's telegraph patent
was a discovery or
process:
"... not a composition of matter, or a manufacture, or
a
machine. It is the application of a known element or power
of nature to a
new and useful purpose by means of various
processes
..."
That meaning of "discoveries" is reflected in the
appearance of "processes" in section 101 of the US Code:
'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
...'
---
Grumpy old man [ Reply to This | Parent | # ]
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- Ooops - Authored by: Tolerance on Tuesday, February 12 2013 @ 06:44 PM EST
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