|
|
|
| Authored by: Ian Al on Monday, February 11 2013 @ 03:40 AM EST |
It is a well thought out and argued exposition on how the parts of the patent
law work. I agree with Judge Rich about the 'portal' nature of the different
sections.
He introduces me to a part of the law which I had overlooked.
The definitions §100 adds,
(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.
There is so much clear and
rational opinion given here, but there is a fatal crack in the argument. Judge
Rich argues, correctly from what I have read, that the only person allowed to
approach portal §101 is an inventor. He notes that §101 can bar the passage of
the patents to other sections on the basis of a lack of novelty, a lack of
utility or not being an invention in the four classes of statutory subject
matter. He goes on to say The reason for our consideration of the
statutory scheme in relation to its Constitutional purpose is that we have been
directed to review our prior decisions in the light of Flook and we find in
Flook an unfortunate and apparently unconscious, though clear, commingling of
distinct statutory provisions which are conceptually unrelated, namely, those
pertaining to the categories of inventions in § 101 which may be patentable and
to the conditions for patentability demanded by the statute for inventions
within the statutory categories, particularly the nonobviousness condition of §
103.
He fails to see that §101 demanding novelty (invention) is
only an entry test. Other sections test that preliminary judgement to ensure
that the patent application was a true new invention and not prior art already
used or published (§102) or obvious enough (sufficiently lacking in novelty) not
to deserve protection (§103). It is nothing to do with patentable subject
matter.
In other words, the requirements of §102 and §103 would be
meaningless if §101 was the only law about novelty. The Supreme Court tell us
that the law must not be interpreted in a way that makes other law meaningless
or moot. Judge Rich was legally wrong to assert 'clear, commingling of distinct
statutory provisions which are conceptually unrelated. Both obviousness and
prior art are elements of lack of novelty on the part of the
inventor.
As the Supreme Court said in Bilski:This would
violate the canon against interpreting any statutory provision in a manner that
would render another provision superfluous. See Corley v. United
States(2009). This principle, of course, applies to interpreting any two
provisions in the U. S. Code, even when Congress enacted the provisions at
different times. See, e.g., Hague v. Committee for Industrial
Organization,(1939) (opinion of Stone, J.). This established rule of statutory
interpretation cannot be overcome by judicial speculation as to the subjective
intent of various legislators in enacting the subsequent
provision.
Having developed this flaw, He struggles to overlook
that the Supreme Court remanded the case on the basis of Flook, which was about
an invention that reset alarms in the petrochemical business using a computer.
The Supreme Court rejected Flook on the basis that it was not statutory subject
matter under §101 not because it contained math or because the components of the
process were not novel, but because the process did not result in the production
of anything of utility (§101) and that it narrowed an abstract idea (which the
Supreme Court had already excluded from patentable subject matter) to a
computer. The Supreme Court were bringing to the attention of the CCPA all of
the judicial exclusions from §101, including laws of nature (Bergy had claims
about the production of bacteria) and not just the ones in Flook. In Bilski the
Supreme Court said:
Flook stands for the proposition that the
prohibition against patenting abstract ideas “cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment” or adding “insignificant postsolution activity.”
Diehr
Finally to return to the definition of 'process' in §100
(see above, top). This may be the reason for so many inventions which are
invalid under §101 being awarded a patent. includes a new use of a
known process, machine, manufacture, composition of matter, or
material.
§101 says the invention can only be one four
classes of statutory subject matter. What the Apple patents claim, for instance,
is that they have protected a machine that contains a feature based on a
process (which §100 says can be a method). Other patents seem to stretch the
concept to the limit as with Oracle that protected a machine, that had software
that employed other software at a particular time produced by a method of
writing software source code to implement an abstract idea.
This is
the resolving of abstract virtual processor text labelled instructions in an app
at the time when the app is being run for the first time rather than when the
app is installed. The app is not infringing on the method. The user is not
infringing on the method. The writer of the Dalvik operating system is not
infringing (even though the method would be a choice of the Dalvik source code
writer). The machine on which the virtual processor code runs and on which the
app runs and which resolves the instructions at a certain time, is the protected
invention.
It seems to me that the general failure of the CCPA is the
refusal to read the word 'one' in §101 and the refusal to observe the canon
against interpreting any statutory provision in a manner that would render
another provision superfluous. I suspect that the USPTO's recent request for
comments is the result of the problems of making the self-same
mistake.
Courts, in general, seem to have rewritten §101 to read 'any
invention under the sun including a new use of a known process, machine,
manufacture, composition of matter, and/or material'.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
|
|
|
|
|
