| Now that you have thought of the issue this far, I suggest you read what the
Federal Circuit has said on the topic in in re
Alappat, State
Street vs Signature and
AT&T vs Excel Communications. You will find that in some cases the
Federal Circuit upheld patents on mathematical calculations based on
algorithms.
Please note that the useful, concrete and tangible result test
which is used in these cases is dead since Bilki. But you will get a sense of
how they think when they encounter a claim involving software. Alappat will tell
you about the "make a new machine" doctrine, see also what we wrote
here.
The upshot is a claim on the algorithm standing alone, like in
Benson, is going to be dead. But patent attorneys don't write claims like this.
They place the algorithm in a context where they can truthfully sat the software
is part of a larger structure, like a process or a machine. And then they argue
the invention is not the algorithm, it is the larger structure. When that
happens an analysis is required to determine whether the claim is abstract. How
this analysis would work is an unsettled matter of law. It is currently before the
Federal Circuit in CLS Bank v.
Alice. We have received a report on
the hearing and we await the decision.
Once you have checked this
material, I suggest you read again what was sent to the USPTO and the
supplement. You will then see nuances and perspectives you didn't notice on a
first reading. The argument is not a simple "software is algorithm so it isn't
patentable". We take a much more nuanced position which is intended to navigate
these issues. [ Reply to This | Parent | # ]
|
I am not a lawyer. Nevertheless, in forming a judgement as to the scope of
any precedent established in Benson, I would expect that, with regard to
any disputed terms, such as algorithm, a court will look to the specific
text of the opinion to determine how the Benson court construed the term,
and may opt to construe the term themselves narrowly or broadly in accordance
with their understanding of the purposes of the law. Now the Benson court gave
an explanation of the sense in which it interpreted the term
algorithm:
The patent sought is on a method of
programming a general-purpose digital computer to convert signals from
binary-coded decimal form into pure binary form. A procedure for solving a given
type of mathematical problem is known as an “algorithm.” The
procedures set forth in the present claims are of that kind; that is to say,
they are a generalized formulation for programs to solve mathematical problems
of converting one form of numerical representation to another. From the generic
formulation, programs may be developed as specific
applications.
Therefore the CCPA, or the Federal Circuit, in
seeking to distinguish their cases from Benson to the utmost extent
possible, will note that Benson defined the term algorithm, in the
context of their specific holding, as “a procedure for solving a given
type of mathematical problem”, will construe the phrase “given type
of mathematical problem” narrowly, and distinguish their cases
accordingly.
Were mathematicians and computer scientists to come along
and say “we regard an algorithm as being something else”, such an
argument would be given short shrift by judges whose ears are closed to such
arguments.
And it seems abundantly clear that the judges on the CCPA and
their successors on the Federal Circuit who are inspired by them had and have
nothing but contempt for the “confused” opinions of the Supreme
Court in Benson and Flook. There is no way that they would have
considered adopting the underlying principles of these cases, and accordingly
construing broadly the language of precedents for which they feel nothing but
contempt. And it is clear that Judge Rich and his associates put every effort
into cabining and effectively negating the precedents in those despised
opinions. [ Reply to This | Parent | # ]
|
