To me, it seems that nobody would be convinced by a long document combining
theory of computation with semiotics unless they are already convinced. And
even if the document did convince anyone in government or the judiciary, how
would that change the law? People may say that it would be good if the law said
so-and-so, but that is not going to change the law.
The equal and
opposite position is equally uncompromising. A computer is a machine. (Can you
refute that proposition?) If a computer is programmed in a way that adds
functionality to the computer, then this is an improvement to the functioning of
the machine. (Do you dispute that?) And to add a claim limitation that the
computer is programmed so as provide useful functionality meaningfully limits
the scope of the claim. Thus to install a useful program on a computer is to
enhance the functionality of the computer, and is thus an improvement of the
machine. To me, I don't see anything in lambda-calculus, or Turing Machines, or
'referents' and 'interpretants' that refutes the legal argument just
stated.
And if I wanted a ‘mathematical’ gloss on the
argument, I would point to the theory of finite state machines. A real-world
computer has a finite amount of memory and storage. The Turing machine has a
tape infinite in both directions. The Turing machine is not a real-world
machine. It is a pure abstraction introduced in relation to a mathematical and
philosophical problem in the theory of computation. Thus the finite state
machine is a more realistic model of a real-world computer. And to configure
the computer amounts to restricting the internal states.
Are you
proposing that the Patent Office should refuse patent claims that do not cite a
'referent'? What is the legal basis for their so doing? The Patent Office does
not have discretion as to whether or not to grant a patent. It has to follow
the law as interpreted by the Federal Circuit (and the Supreme Court). The
statute says:
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, subject to the conditions and
requirements of this title.
In other words, whoever invents or
discovers something in the categories is entitled to a patent, unless some
provision of the statute is not fulfilled. Suppose that the PTO rejected a
patent claim on the grounds that the claim 'failed to claim a referent'? When
the worthy inventer sues the Commissioner of Patents, what defence is the
Commissioner of Patents to make before the Federal Circuit? Which section or
clause in the statute gives the PTO the authority to reject a patent claim that
'fails to claim a referent'? Where is the term 'referent' defined or mentioned
in the statute? And if not in the statute, what relationship, if any, has this
'referent' test got to any of the 'implicit exceptions' established in over 150
years of case law from Le Roy v. Tatham and O'Reilly v' Morse
through to Funk Bros., Benson, Flook, Bilski and
Mayo? Were 'referents' and 'interpretants' mentioned or discussed in
those cases? Can you point to any case in which a patent claim was refused, on
the grounds that 'it failed to claim a referent'? Can you give a citation to
any case with any dicta that include the words 'referent' or 'interpretant', in
any context?
The Supreme Court in Bilski ruled that the Federal
Circuit was in error in attempting to establish a bright-line Machine or
Transformation test that was not grounded in the words of the statute. They
made it clear that such bright-line atextual 'tests' have no basis in law. But
the MoT test was at least based on a study of Supreme Court precedents. The
'referent test' seems to me to be even more atextual, and even more contrary to
legal principles acceptable to the Supreme Court.
The Supreme Court
opinions, in Kirtsaeng v. Wiley, supplied about 97 pages of highly
technical legal argument, to construe a mere five words of statute:
“lawfully made under this title”. Assuming there was some clause in
Title 35 to construe, how many hundreds or thousands of pages would the Supreme
Court have to devote to showing that the requirement that a patent claim should
‘claim a referent’ was implicit in the statute?
It seems to
me that the justification for basing an argument on an ‘implicit
exception’ for ‘abstract ideas’ and ‘abstract
intellectual concepts’ is that there is established case law that
specifically provides for these implicit exceptions under the principles of
Common Law! [ Reply to This | Parent | # ]
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