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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Logging some related thoughts: | 179 comments | Create New Account
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Logging some related thoughts:
Authored by: macliam on Saturday, March 16 2013 @ 06:24 AM EDT

Sometimes essential truths and interrelated ideas can be approached from a variety of directions (e.g., the Church-Turing thesis approached through lambda calculus, Turing machines, recursion theory etc.).

What is a process? A process evolves in time. Indeed the word derives from the Latin verb procedere, which, according to one dictionary, means "to go forward, advance; to go out, come forth". The term is broad enough to encompass both "thought processes" and "geological processes". Giles Rich and Pasquale Federico may have supposed that they were clarifying the meaning of the statute by replacing the word "art" by the word "process" in Section 101 of the 1952 Patent Act, but when one seeks to apply the statute with regard to matters concerning patent-eligible subject matter, the change surely only sows confusion. The definition of a "process" as being a "process, art or method" in Section 100 of the statute does not serve to clear up such confusion.

With regard to the nature of processes in general, I suggest that one cannot clarify the notion more than to suggest that a process involves some configuration of entities evolving in time. But what is the nature of those entities?

In so far as I understand the semiotic approach, it involves categorizing the entities that evolve as the process develops. The bits in the computer directly represent the sign-vehicles. The process at the logical level involves the evolution of the sign-vehicles in time. The process at the semantic level involves the evolution of the identificants, which may entail evolution of the referents. (I have not before now given serious consideration to semiotics.) Thus, in the context of a computer-implemented process, one has entities in conceptually distinct categories evolving in time in tandem with each other. I suggest that the notion of the sign in your semiotic approach captures the logical connections between the sign-vehicles, interpretants and referents that relate the evolution of the entities at the various levels. But I also suggest that this notion may not capture the logical connection between the physical and logical processes. Years ago, when thinking about patents in connection with the assertion by Unisys of patent rights with respect to GIF images and the LZW compression algorithm, I tended to focus on the fact that the logical process involved in following the steps of an algorithm may not correlate closely with the physical movement of electrons on a multi-user computer system switching between multiple processes.

I suggest that my distinctions between the evolution of the computer-implemented process at the physical, logical and semantic levels matches to some degree the semiotic approach, as the level corresponds to category of the evolving sign elements.

[ Reply to This | Parent | # ]

Patent prosecution and litigation focusses on claims
Authored by: macliam on Saturday, March 16 2013 @ 07:37 AM EDT

Patent litigation is concerned almost entirely with patent claims. This has been the case for decades, possible for a century-and-a-half at least. There are millions of patents out there whose scope is legally determined by the patent claims. I suggest that the Groklaw community cannot expect the PTO or the courts to restore the basic principles of patent law to what they were in the early nineteenth century because of concerns about software patents.

And I suggest that Groklaw members in general don't seem to have an understanding of the relationships between the patent specification and the patent claims. I do not intend this remark pejoratively. I suspect that few people who are not patent lawyers, judges or professors with interests in patent law have any real understanding of how the system works. Presumably, in businesses, the inventors discuss what they have come up with with the patent lawyers, and the patent lawyers then draft patent applications that, to the uninitiated, appear to be incomprehensible legalese if not pure gibberish. But the patent lawyers, if they are doing their job, are putting forward the application in the required format if there are to succeed in prosecuting the patent application and in defending the issued patent.

I would suggest that, if the Groklaw community expects to influence the Patent and Trademarks Office and the courts, those who concern themselves seriously with issues surrounding software principles need to achieve an understanding of how the patent system actually works, how the PTO processes patent applications, and how the appelate courts that interpret the law approach patent law. I suggest that it is not sufficient to form some impression as to how the patent system ought to work, and then seek to influence the courts and the intellectual property community without a realistic understanding of how the system works and how verdicts of patent invalidity and patent infringement are arrived at.

For myself, I am only at the early stages of such a process of learning.

[ Reply to This | Parent | # ]

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