I intended 'logical' to be interpreted in a sense related to logic,
specifically formal logic, and indeed classical first order logic. Most of the
theorems of mathematics could in principle be represented as theorems in first
order logic following from the Zermelo-Fraenkel axioms. I would suggest that
what the Zermelo-Fraenkel axioms add to first order logic is a set of basic
principles for handling infinite sets, such as the sets of integers and real
numbers. Thus classical logic and predicate calculus represent principles that
are even more fundamental than mathematics per se, though mathematicians
would probably consider them a subset of mathematics. I cannot think of any
adjective other than logical that could serve the process of indicating
the fundamental nature of the principles involved.
In any case, there is
no prospect of anything like this being put to district judges and juries to
interpret. The Supreme Court made it plain that the judicial exceptions are for
"laws of nature", "natural phenomena" and "abstract
ideas" (and possibly "products of nature" as decided in the
forthcoming Myriad case), and that they are not minded to extend this
list by further exceptions for "business methods" and, by extension,
"mathematical algorithms" and the like. Moreover neither the
"machine or transformation" test nor any other sort of bright-line
dispositive test is acceptable for determining whether or not a claimed
invention falls within these categories of excluded subject matter. At most,
such tests are "useful clues" or "investigative
tools".
If the analysis of the nature of computer-related processes
has relevance then the relevance surely lies in attempting to clarify the issues
involved. And if something useful emerges, it may form a good basis for legal
briefs to the Supreme Court or Federal Circuit. The printing press example is a
particularly good one. But if part of the purpose were to devise a dispositive
test that judges and juries could use in order to determine whether or not a
claimed invention is patent-eligible, then that exercise would be misconceived
as contradicting the letter and spirit of the Supreme Court judgement in
Bilski v. Kappos. As the PTO have told the Federal Circuit, such
"bright line" tests not grounded in the wording of the statute are not
in themselves acceptable as a means of separating patent-eligible and
patent-ineligible subject matter.
And any tests will be determined by
the Federal Circuit through case law, as and when they come to terms with the
principles set out by the Supreme Court and develop their jurisprudence in
accordince with principles set out in Bilski. Mayo, the
forthcoming Myriad case that is currently being briefed before the
Supreme Court, and probably some future computer-related case, maybe arising out
of CLS v. Alice or Ultramercial v. Wildtangent or any other of the
cases currently before the Federal Circuit relating to patent-eligibility of
computer-related subject matter under Section 101 of the patent act. And the
Patent Office and judges and juries will then follow whatever principles and
procedures that the Federal Circuit establishes.
In particular, suppose
that the following were proposed as a definitive bright-line
test:
Claims reciting software will be patentable when they
claim a referent which is a patent-eligible invention.
Then it
is surely a sitting duck for patent attorneys who will gleefully set about
writing patent applications on fundamental ideas and basic principles that are
filled with claims to "referents that are patent-eligible inventions"
but that neverthess less in practice claim masses of routine everyday activity
"widely practised within the art" or prempt most if not all useful
applications of scientific discoveries and mathematical breakthroughs. Don't
underestimate the ingenuity of patent attorneys when they draft claims that fall
within acknowledged "safe harbors"!
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