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Authored by: Anonymous on Friday, May 10 2013 @ 04:11 PM EDT |
Well-deserved, too! [ Reply to This | # ]
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Authored by: webster on Friday, May 10 2013 @ 04:12 PM EDT |
.
celebrate elsewhere
.[ Reply to This | # ]
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Authored by: AdamBaker on Friday, May 10 2013 @ 04:28 PM EDT |
If the reporting on The Register here is to be believed, New Zealand have gone a stage further and
updated their legislation in an attempt to stop software patents [ Reply to This | # ]
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Authored by: nsomos on Friday, May 10 2013 @ 04:34 PM EDT |
Here is a key footnote from page 9
While Chief Judge Rader is
correct to note that no
single opinion issued today commands a majority,
seven
of the ten members, a majority, of this en banc court have
agreed that the
method and computer-readable medium
claims before us fail to recite
patent-eligible subject
matter. In addition, eight judges, a majority, have
concluded
that the particular method, medium, and system
claims at issue in this
case should rise or fall together in
the § 101 analysis.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 04:35 PM EDT |
From the dissent:
And let’s be clear: if all of these claims,
including the system claims, are not patent-eligible, this case is the death of
hundreds of thousands of patents, including all business method, financial
system, and software patents as well as many computer implemented and
telecommunications patents.
Let's hope they are right.
[ Reply to This | # ]
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Authored by: achurch on Friday, May 10 2013 @ 04:42 PM EDT |
Still reading, but this bit on page 27 caught my
eye:
Furthermore, simply appending generic computer
functionality to lend speed or efficiency to the performance of an otherwise
abstract concept does not meaningfully limit claim scope for purposes of patent
eligibility. . . . At its most basic, a computer is just a calculator capable of
performing mental steps faster than a human could. Unless the claims require a
computer to perform operations that are not merely accelerated calculations, a
computer does not itself confer patent eligibility. [ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 04:47 PM EDT |
Now here's crossing all the bones in my body that can be crossed in the hopes
this makes it's way to the Supremes and the Supremes confirm!
And here's
crossing everything thrice in the hopes that the Patent Lawyers don't sweet talk
the Federal Circuit into changing their minds.
RAS[ Reply to This | # ]
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Authored by: lnuss on Friday, May 10 2013 @ 04:53 PM EDT |
...
---
Larry N.[ Reply to This | # ]
|
- More Trouble for Larry Ellison - Authored by: Anonymous on Friday, May 10 2013 @ 08:49 PM EDT
- Linux & GParted to the Rescue - Authored by: Anonymous on Friday, May 10 2013 @ 08:49 PM EDT
- Why is Science Behind a Paywall ? - Authored by: Anonymous on Saturday, May 11 2013 @ 11:11 AM EDT
- Huawei Boss Speaks Out - Authored by: Anonymous on Saturday, May 11 2013 @ 08:34 PM EDT
- International Space Station switch Windows XP laptops to D - Authored by: Anonymous on Sunday, May 12 2013 @ 06:57 AM EDT
- Imo: Microsoft up to old tricks - Authored by: Anonymous on Sunday, May 12 2013 @ 07:55 AM EDT
- Send and receive Enigma Messages - Authored by: JamesK on Sunday, May 12 2013 @ 12:53 PM EDT
- Disney attempts to trademark... - Authored by: Anonymous on Sunday, May 12 2013 @ 02:24 PM EDT
- Ground control to Commander Hadfield - Authored by: Gringo_ on Sunday, May 12 2013 @ 07:04 PM EDT
- Microsoft Developer Admits Windows is Slower than Linux - Authored by: Anonymous on Sunday, May 12 2013 @ 09:35 PM EDT
- Coronavirus - Authored by: Anonymous on Sunday, May 12 2013 @ 09:54 PM EDT
- Effort afoot in court to sue Canadians for illegal downloads - Authored by: Anonymous on Sunday, May 12 2013 @ 11:20 PM EDT
- Are Smartphones on Their Way Out - Authored by: Anonymous on Monday, May 13 2013 @ 05:13 AM EDT
- Apple arrogance again - Authored by: Anonymous on Monday, May 13 2013 @ 06:16 AM EDT
- NSA Internet Spying Guide Made Public - Authored by: JamesK on Monday, May 13 2013 @ 08:31 AM EDT
- Bill Gates Is Wrong on Surface vs. iPad Tablet Claims: 10 Reasons Why - Authored by: JamesK on Monday, May 13 2013 @ 11:26 AM EDT
- Monsanto Wins Case on Genetically Altered Soybeans - Authored by: Anonymous on Monday, May 13 2013 @ 11:59 AM EDT
- GROKLAW's 10th Anniversary is May 16th - Authored by: Anonymous on Monday, May 13 2013 @ 01:13 PM EDT
- CLAIM 19 in Apple Patent - Response to Final Office Action has been filed. - Authored by: Anonymous on Wednesday, May 15 2013 @ 11:20 AM EDT
|
Authored by: lnuss on Friday, May 10 2013 @ 04:54 PM EDT |
...
---
Larry N.[ Reply to This | # ]
|
- Goldman Sachs. - Authored by: Anonymous on Friday, May 10 2013 @ 05:01 PM EDT
- Newspicks Thread Here... - Authored by: Anonymous on Saturday, May 11 2013 @ 02:28 AM EDT
- Software Will No Longer Be Patentable in New Zealand - Authored by: Anonymous on Saturday, May 11 2013 @ 01:49 PM EDT
- “Look, you may hate me”: 90 minutes with John Steele, porn troll - Authored by: JamesK on Saturday, May 11 2013 @ 03:54 PM EDT
- Bowman vs Monsanto Opinion - Authored by: Anonymous on Monday, May 13 2013 @ 01:23 PM EDT
- MONSANTO WINS ON GM SOYBEANS - Authored by: Anonymous on Monday, May 13 2013 @ 01:45 PM EDT
- Samsung & 5G - Authored by: Anonymous on Monday, May 13 2013 @ 01:57 PM EDT
- Samsung & 5G - Authored by: Anonymous on Monday, May 13 2013 @ 07:34 PM EDT
- On key software decision, top patent court grinds to a stalemate - Authored by: Anonymous on Monday, May 13 2013 @ 04:02 PM EDT
|
Authored by: lnuss on Friday, May 10 2013 @ 04:55 PM EDT |
...
---
Larry N.[ Reply to This | # ]
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Authored by: PolR on Friday, May 10 2013 @ 05:13 PM EDT |
See Federal Circuit Nightmare in CLS Bank v. Alice Corp. The
title says a lot. Here is his summary of the ruling:
Well, the
United States Court of Appeals for the Federal Circuit sort of decided CLS Bank
v. Alice Corporation earlier today. Truthfully, all the important questions that
we thought might be answered remain completely and totally unanswered because
there were only 10 judges who sat on the en banc tribunal and no more than 5
judges signed on to any one opinion.
The only thing we know is this -- the
Federal Circuit issued an extraordinarily brief per curiam decision, which
stated:
Upon consideration en banc, a majority of the court
affirms the district court’s holding that the asserted method and
computer-readable media claims are not directed to eligible subject matter under
35 U.S.C. § 101. An equally divided court affirms the district court’s holding
that the asserted system claims are not directed to eligible subject matter
under that statute.
Thus, all of the asserted claims are not
patent eligible. At the moment I am completely flabbergasted and don’t know what
to say.
I think this part sums up what he expects to occur next.
He sounds pretty distressed.
You can rest assured I will write more
once I feel like I have a grasp on what has happened. For now suffice it to say
that based on the length of the opinions and the way they are written it seems
as if the Federal Circuit feels the Supreme Court will likely weigh in on this
issue. While I shutter to think about the Supreme Court taking on a patent issue
I think it is virtually inevitable in this case. There simply cannot be a tie
with respect to the law as it applies to software and computer implemented
technologies. How is the Patent Office supposed to process this decision? How
are patent examiners supposed to apply this monstrosity? How are patent
practitioners supposed to write patent applications covering these important
innovations?
He concludes as follows:
Judge Taranto
did not participate in the decision and several more judicial nominees await
confirmation in the United States Senate. What does the future hold? Who knows!
Now more than ever it seems that with respect to software patents the outcome is
100% dependent on the panel drawn at the Federal Circuit. Talk about arbitrary
justice!
[ Reply to This | # ]
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Authored by: jbb on Friday, May 10 2013 @ 05:19 PM EDT |
from pdf-page 47:
[...]
though much is published today discussing
the proper
approach to the patent eligibility inquiry, nothing said
today beyond
our judgment has the weight of precedent.
A
Fundamental Problem
Pdf-page 16:
What is needed is a
consistent, cohesive, and accessible approach
to the § 101 analysis -- a
framework that will provide
guidance and predictability for patent applicants
and
examiners, litigants, and the courts.
Versus pdf-page
24:
[all the previous landmark patent] cases urge a flexible,
claim-by-claim approach to subject-matter eligibility that avoids rigid line
drawing. Bright-line rules may be simple to apply, but they are often
impractical and counterproductive when applied to § 101.
IMO it
is incumbent upon the Supreme Court to clean up
this mess they created. In
particular they need to overturn
Diamond v. Diehr to make it consistent
with their more recent rulings. Without such consistency no bright-lines rules
will be possible and there will never
be a consistent, cohesive, and accessible
framework that will provide guidance and predictability for patent applicants
and examiners, litigants, and the courts.
--- Our job is to remind
ourselves that there are more contexts
than the one we’re in now — the one that we think is reality.
-- Alan Kay [ Reply to This | # ]
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Authored by: kawabago on Friday, May 10 2013 @ 05:25 PM EDT |
If someone runs a fashion class or knows someone who does,
could you see about a class project to design and make a red
dress for pj?
[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 05:40 PM EDT |
Quote in the opinion:
Indeed, even an increase in speed alone may
be sufficient to result in a meaningful limitation;
I have a
computer with the Pentium 75 chip. I compile Linux on it. I author a software
program and compile it on this chip with this OS.
I run the software and
it takes 30 minutes to do it's processing.
Along comes some new chip
manufacturing - The pentium Xeon chip is created. This new chip is granted a
patent because the new chip had some new hardware developments.
The
operating system (same version of Linux) is compiled on the new hardware. No
change, just a recompile with the same compiler for the Pentium 75 (not the new
Xeon - because the Xeon is built with backwards compatibility in
mind).
My software can now run natively (without change, without
recompiling) on the new chip.
When I run it, it now runs in 5 seconds for
the exact same processing.
The question:
Why should having absolutely
no change in the software - yet it run significantly faster - make the software
alone re-eligible for patent protection?
Of course you do say may. I only
hope you consider the above in the context of your suggestion that faster
processing may be eligible for patent protection and realize this patent
protection should be correctly applied to the hardware - not the
software.
RAS[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 05:50 PM EDT |
Quote:
There has never been a case which could do more damage to
the patent system than this one.
Isn't the purpose of the Patent
System supposed to be to encourage the arts?
Shouldn't the concern be
with whether or not all those patents that were granted are actually encouraging
the Arts. And if they are damaging, if they add nothing to the public domain
and instead strip knowledge out of the public domain - shouldn't they be
destroyed?
Perhaps I misunderstood the purpose of the particular phrase
and the thought really was on encouraging the arts as opposed to the patent
system itself.
EAS[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 05:54 PM EDT |
That's almost right. What they don't understand yet, but we'll keep
explaining until they do, is that all computers are like that. None of them do
anything but 1s and 0s, and it's all mathematics, mathematical manipulation of
symbols, nothing more magical than that.
(quote referring to quote
quoted from ruling below)
This isn't quite true, while being used how
computers are used today this is true, you could theoretically use a computer in
ways which they do more then this, and should arguably be patentable. For
instance if you bombarded some of the memory with radiation in such a way to
create a truly random number (and read this through a normal cpu, and everything
else required to make it a computer), then you are actually using a computer in
a way that extends beyond pure mathematics. For this reason I feel that the
wording in the ruling
At its most basic, a computer is just a
calculator capable of performing mental steps faster than a human could. Unless
the claims require a computer to perform operations that are not merely
accelerated calculations, a computer does not itself confer patent
eligibility.
Might not actual be a bad way of wording the law,
presuming it is applied correctly.[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 05:58 PM EDT |
Gene Quinn says he is "flabbergasted".
I laughed at
that because I remembered how he responded in another case:
How long will it
take the Federal Circuit to overrule the Supremes?
I wonder who he's going
to turn to now..... ;)
RAS[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 06:02 PM EDT |
Congrats PJ. This is validation for all of your tremendous and
valiant work here. We LOVE you![ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 06:10 PM EDT |
. [ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 07:26 PM EDT |
Anyone care to speculate how this will impact Samsung v Apple in all it's
versions?[ Reply to This | # ]
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Authored by: jesse on Friday, May 10 2013 @ 08:43 PM EDT |
At its most basic, a computer is just a calculator
capable of performing mental steps faster than a human could. Unless the claims
require a computer to perform operations that are not merely accelerated
calculations, a computer does not itself confer patent
eligibility.
That's almost right. What they don't understand yet,
but we'll keep explaining until they do, is that all computers are like that.
None of them do anything but 1s and 0s, and it's all mathematics, mathematical
manipulation of symbols, nothing more magical than that. Not that mathematics
isn't magical. It is. But it's not patentable subject
matter.
Well, maybe not.
It really depends on how the
computer is designed and built.
Consider a standard computer, that has
an augmented instruction that causes it to take a bunch of data, and feed it
into a neural net, and get a response.
That particular response just
might not fit the "mathematical computation" approach to computing. Granted, the
simulated neural net systems done to date are not quite that good- they are,
after all "simulated" using a mathematical description.
There have been
some chip manufacturing that uses live neurons to actually function. I CAN see
the POTENTIAL that such a "computer" might not fit the "just a calculator"
description - it may be "not merely accelerated calculations".
One
reason I bring this up is that there will be rather large living neural nets
connected to computers, and these will be used as workers. I see adding such
aids to living neural nets as the equivalent of normal prosthetics added to a
person (or animal for that matter) to repair/enable a more normal
life.
The future question is: How much live tissue does it take to claim
it as a living being?
All CURRENT computers are just a glorified
calculator though. [ Reply to This | # ]
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Authored by: vidstudent on Friday, May 10 2013 @ 08:51 PM EDT |
"Thus, I find myself writing again as I did in 1992.
And I find myself
resorting to exactly the same phrase:
When all else fails, consult
the statute!
And for evidence that all else has failed, I need only
recite Bilski v. Kappos, 130 S. Ct. 3218 (2010),
Mayo Collaborative Servs. Inc.
v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012), Ass’n for Molecular Pathology
v. U.S. Patent & Trademark Off., 689 F.3d 1303 (Fed. Cir. 2012), cert
granted in part, 133 S. Ct. 694 (2012),
MySpace, Inc. v.GraphOn Corp., 67 2 F.3d
1250 (Fed. Cir. 2012), Dealertrack, Inc. v. Huber,
674 F.3d 1315 (Fed. Cir.
2012), and Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d
1057 (Fed.
Cir. 2011), and this list can and will go on and
grow."
The first two, in
particular, are the ones constantly cited after the words, "Cert. granted,
reversed, and remanded in light of..."
His reflections as I read them in
less polite words: "**** ALL THE SUPREME COURT DECISIONS CALLING WITH ONE OF THE
FIRST CASES I PRESIDED OVER *TWENTY-FIVE YEARS AGO*
WRONG!" --- Nicholas Eckert
vidstudent [ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 08:52 PM EDT |
Here's a big one, right in footnote #1 on page 2:
"n, eight judges, a majority, have concluded that the
particular method, medium, and system
claims at issue in this case should rise or fall together in
the § 101 analysis"
The weasel words are "in this case", but here's hoping we'll
see a lot fewer of these stupid "system and method" double
filings in the future.[ Reply to This | # ]
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Authored by: Anonymous on Friday, May 10 2013 @ 09:57 PM EDT |
It seems to me that there is a good chance that it will not be appealed. As it
stands there is still ambiguity, though less than before, but well within the
capabilities of paid prevaricators. If you ask the Supreme Court to, once
again, tell the Federal Circuit "that we said mundane accounting or other
activity plus a computer does NOT equal a patent", they would lose, big
time. So I bet the lovers of software patents will try very hard to not engage
with an ultimate decision.[ Reply to This | # ]
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Authored by: thorpie on Friday, May 10 2013 @ 11:08 PM EDT |
If I understand correctly it is the case that all software patents issued to
date, and more, are invalid.
Which means that to make currently issued
invalid patents valid a retrospective law change would be needed.
So
the whole American economic dream of America being the brains and having the
rest of the world the lowly paid manufacturers has just come crashing
down.
Is this about correct?
--- The memories of a man in his
old age are the deeds of a man in his prime - Floyd, Pink [ Reply to This | # ]
|
- You got it 100% backward - Authored by: jbb on Friday, May 10 2013 @ 11:22 PM EDT
- You got it 100% backward -- not exactly - Authored by: Anonymous on Saturday, May 11 2013 @ 01:40 AM EDT
- The Great American Dream - Authored by: jbb on Saturday, May 11 2013 @ 05:32 AM EDT
- The source of the confusion - Authored by: Anonymous on Saturday, May 11 2013 @ 11:03 AM EDT
- It's a big country, and there is more than one dream ... - Authored by: Anonymous on Saturday, May 11 2013 @ 01:03 PM EDT
- It's a big country, and there is more than one dream ... - Authored by: Wol on Saturday, May 11 2013 @ 03:59 PM EDT
- It's a big country, and there is more than one dream ... - Authored by: Anonymous on Saturday, May 11 2013 @ 06:19 PM EDT
- It's a big country, and there is more than one dream ... - Authored by: PJ on Sunday, May 12 2013 @ 04:02 AM EDT
- Oh, would some power the giftie gie us ... - Authored by: Anonymous on Sunday, May 12 2013 @ 05:04 PM EDT
- Oh really? - Authored by: jbb on Sunday, May 12 2013 @ 08:10 PM EDT
- Oh, would some power the giftie gie us ... - Authored by: PJ on Sunday, May 12 2013 @ 08:18 PM EDT
- OK - Authored by: Anonymous on Sunday, May 12 2013 @ 11:35 PM EDT
- OK - Authored by: PJ on Monday, May 13 2013 @ 01:01 AM EDT
- OK - Authored by: kuroshima on Monday, May 13 2013 @ 04:37 AM EDT
- OK - Authored by: Anonymous on Monday, May 13 2013 @ 07:01 AM EDT
- nonverbal cues - Authored by: Anonymous on Monday, May 13 2013 @ 07:19 AM EDT
- nonverbal cues - Authored by: Anonymous on Tuesday, May 14 2013 @ 05:15 AM EDT
- OK - Authored by: Wol on Monday, May 13 2013 @ 10:51 AM EDT
- It's a big country, and there is more than one dream ... - Authored by: jbb on Saturday, May 11 2013 @ 06:33 PM EDT
- Very well put - Authored by: Gringo_ on Saturday, May 11 2013 @ 06:54 AM EDT
- sorry let me clarify - Authored by: thorpie on Saturday, May 11 2013 @ 02:58 PM EDT
- Retrospective law change .. - Authored by: Wol on Saturday, May 11 2013 @ 04:42 AM EDT
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Authored by: Gringo_ on Friday, May 10 2013 @ 11:20 PM EDT |
Congress is going to step in to clean up this mess for
once and for all.
That's the scary part, because they are
all puppets dancing on strings held by
big corporations.
Don't forget that many of them are lawyers too. Do you think
they are going to stand idly by and watch the unemployment
rate for patent
lawyers go through the roof? [ Reply to This | # ]
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|
Authored by: Anonymous on Friday, May 10 2013 @ 11:48 PM EDT |
My favorite part:
We are faced with abstract methods coupled with
computers
adapted to perform those methods. And that is the fallacy of
relying on Alappat, as the concurrence in part does.
Not only has the world
of technology changed, but the
legal world has changed. The Supreme Court
has spoken
since Alappat on the question of patent eligibility, and we
must take
note of that change. Abstract methods do not
become patent-eligible machines
by being clothed in
computer language.
Wow indeed! Now waiting
for the "... on the Internet" patents to fall.[ Reply to This | # ]
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Authored by: ais523 on Saturday, May 11 2013 @ 03:03 AM EDT |
From the plurality opinion (which 5 judges agreed with), page 37:
"And the Supreme Court has told us that, while avoiding confusion between
§101 and §§102 and 103, merely adding existing computer technology to abstract
ideas — mental steps — does not as a matter of substance convert an abstract
idea into a machine."
The message I get from the opinion is "you can't just stick 'on a computer'
on an abstract idea in order to make it patentable". And what software
patent is anything but that?[ Reply to This | # ]
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Authored by: kh on Saturday, May 11 2013 @ 04:33 AM EDT |
Techdirt has an interesting take on this.
10 Judges,
135 Pages Of Ruling About Software Patents... And Zero Clarification [ Reply to This | # ]
|
- My Take Too - Authored by: Anonymous on Sunday, May 12 2013 @ 12:56 AM EDT
|
Authored by: Ian Al on Saturday, May 11 2013 @ 04:49 AM EDT |
I haven't finished reading it yet because my head is nodding too vigorously.
From PJ's extracts, I suspect that the detailed analysis does not misapply the
key opening statements. This early extract has dramatic ramifications.
Accordingly, the basic steps in a patent-eligibility analysis can be
summarized as follows. We must first ask whether the claimed invention is a
process, machine, manufacture, or composition of matter. If not, the claim is
ineligible under § 101. If the invention falls within one of the statutory
categories, we must then determine whether any of the three judicial exceptions
nonetheless bars such a claim—is the claim drawn to a patent-ineligible law of
nature, natural phenomenon, or abstract idea? If so, the claim is not patent
eligible. Only claims that pass both inquiries satisfy § 101.
I
have often said that a patentable invention has to be in one of the four classes
of § 101 and not several. Also, a patent is for one invention and not several.
Finally, the Supreme Court have gone out of their way to agree with me that §
101 must be the first point of review of a patent: if the invention is not
patent eligible, then any patent issued is invalid. The extract, above, covers
all of these points.
This opinion stresses that: It is also
important to recognize that § 101, while far-reaching, only addresses patent
eligibility, not overall patentability.
§ 112 says that the
inventor must, with specificity, add claims that make it clear exactly what the
invention is that he is claiming. Since only one invention is claimed in a
patent, infringement requires all of the claims to be met and not just some of
them.
I said that, although a computer was never claimed in Bilski, it
was infeasible to use the patented method without computerising it. It was a
computer invention. In this case, they accepted that it was appropriate to
accept the claim construction that the invention had to be
on-a-computer.
They point out that it is an abstract concept actioned
on a computer and thereby one of the judicial exceptions set by the Supreme
Court. This has great ramifications to similar abstract ideas monopolised on
every computer that realises them such as swipe to lock and bounce-back. It also
has an equal effect on software protocols used with integrated circuits such as
using a numerically based algorithm for mobile session negotiations. Algorithms
for the compression and expansion of serial digital signals representing sounds
and moving images are similarly encompassed.
I wait to see how these
findings will be circumvented by patent lawyers. They will find ways. It will be
a long time before past errors are fully rectified.
I might celebrate
when the shock of agreement with a Federal Circuit opinion finally
abates.
blockquote --- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | # ]
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Authored by: SilverWave on Saturday, May 11 2013 @ 05:40 AM EDT |
About time...
Time for the pendulum to swing back?
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
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|
Authored by: Anonymous on Saturday, May 11 2013 @ 06:20 AM EDT |
at 37:
"That is what we face when we have a series of claims to abstract methods
and computers fitted to carry out those methods."
Maybe read to much into that but still: hmmmmm...
[ Reply to This | # ]
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Authored by: SilverWave on Saturday, May 11 2013 @ 06:48 AM EDT |
This is the game changer:
Quote:At its most basic, a computer is just a calculator
capable of performing mental steps faster than a human
could. Unless the claims require a computer to perform
operations that are not merely accelerated calculations, a
computer does not itself confer patent eligibility
Welcome to the new reality.
:-)
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
[ Reply to This | # ]
|
- I have a hard time taking this seriously - Authored by: Anonymous on Saturday, May 11 2013 @ 10:06 AM EDT
- I have a hard time taking you seriously - Authored by: Anonymous on Saturday, May 11 2013 @ 10:47 AM EDT
- No *Really* a computer is just a calculator. *Really, Really* - if you don't grok this you fail. - Authored by: SilverWave on Saturday, May 11 2013 @ 11:05 AM EDT
- I have a hard time taking this seriously - Authored by: Anonymous on Saturday, May 11 2013 @ 11:23 AM EDT
- Please prove speed is a factor in acquiring a patent - Authored by: Anonymous on Saturday, May 11 2013 @ 11:28 AM EDT
- Functional barrier? - Authored by: Anonymous on Saturday, May 11 2013 @ 12:31 PM EDT
- Speed does not matter: Proof - Authored by: Anonymous on Saturday, May 11 2013 @ 03:21 PM EDT
- I have a hard time taking this seriously - Authored by: tknarr on Saturday, May 11 2013 @ 04:15 PM EDT
- I have a hard time taking this seriously - Authored by: Anonymous on Saturday, May 11 2013 @ 07:21 PM EDT
- Speed may be required to be useful, but not 101 - Authored by: Anonymous on Saturday, May 11 2013 @ 11:57 PM EDT
|
Authored by: SilverWave on Saturday, May 11 2013 @ 11:02 AM EDT |
Really good stuff here.
For some system claims, the abstract ideas exception may
indeed be plainly inapplicable, and such claims will face
little difficulty passing through the § 101 filter. But
applying a presumptively different approach to system claims
generally would reward precisely the type of clever claim
drafting that the Supreme Court has repeatedly instructed us
to ignore. As illustrated by the obvious parallels between
the method and system claims now before us, it is often a
straightforward exercise to translate a method claim into
system form, and vice versa. That much has long been
recognized. See In re Johnston, 502 F.2d 765, 773 (CCPA
1974) (Rich, J., dissenting) (noting that “[e]very competent
draftsman” knows how to cast method claims “in machine
system form”). Thus, when § 101 issues arise, the same
analysis should apply regardless of claim format: Does the
claim, in practical effect, place an abstract idea at risk
of preemption? And, if so, do the limitations of the claim,
including any computer-based limitations, add “enough”
beyond the abstract idea itself to limit the claim to a
narrower, patent-eligible application of that idea? Or, is
it merely a Trojan horse designed to enable abstract claims
to slide through the screen of patent eligibility?
:-)
Love it!
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
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Authored by: SilverWave on Saturday, May 11 2013 @ 11:17 AM EDT |
This is a fantastic result.
That is what we face when we have a series of claims to
abstract methods and computers fitted to carry out those
methods. We are not here faced with a computer per se. Such
are surely patent-eligible machines. We are faced with
abstract methods coupled with computers adapted to perform
those methods. And that is the fallacy of relying on
Alappat, as the concurrence in part does. Not only has the
world of technology changed, but the legal world has
changed. The Supreme Court has spoken since Alappat on the
question of patent eligibility, and we must take note of
that change. Abstract methods do not become patent-eligible
machines by being clothed in computer language.
Getting this idea out there and to be used as precedent is
half the battle won.
:-)
---
RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions
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Authored by: Anonymous on Saturday, May 11 2013 @ 01:11 PM EDT |
A slide rule is a calculator but it lacks a means to hold a
state or change it's state. A computer as it is now known
has a state, a very complex state with several gigabytes of
memory to hold its state. A computer has a means to change
its state with write instructions and a way to read its
state with read instructions. It can respond to external
input with IO channels. It can use its state in the form of
instructions stored in memory to change its state and
respond to input based on its state. This allows a computer
to simulate many things as in video games or in accountants
using escrow accounts. Is this sufficient to build an AI
machine, maybe? But in this case the computer is being used
as a simulator to simulate a practice as old as the hills.[ Reply to This | # ]
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Authored by: PolR on Saturday, May 11 2013 @ 06:45 PM EDT |
To be clear, the proper focus is not preemption per se, for some
measure of preemption is intrinsic in the statutory right granted with every
patent to exclude competitors, for a limited time, from practicing the claimed
invention. See 35 U.S.C. § 154. Rather, the animating concern is that claims
should not be coextensive with a natural law, natural phenomenon, or abstract
idea; a patent-eligible claim must include one or more substantive limitations
that, in the words of the Supreme Court, add “significantly more” to the basic
principle, with the result that the claim covers significantly
less.
This approach may work with laws of nature and natural
phenomenons. But I am not sure about abstract ideas. A particular case of an
abstract idea may also be abstract. For example multiplication is abstract.So
the question is not just to add "significantly more" to the basic principles
with the result that the claim covers significantly less. It is also that the
result must stop being abstract.
For example multiplication of numbers is
abstract mathematics. If we restrict one of the numbers to be the number two, it
becomes the concept of doubling a number. This is clearly significantly less but
it is still abstract mathematics.
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Authored by: Anonymous on Sunday, May 12 2013 @ 12:09 AM EDT |
The description of the Diamond v. Diehr decision surprised me. It was different
from what I recall reading before. Before I've read that patent had been
initially disallowed because a computer was used and SCOTUS allowed the patent
on the rubber curing process despite being controlled by a computer. Here they
say SCOTUS allowed the patent for the use of an algorithm to control the rubber
curing process because although the algorithm was math, the patent was for a
specific narrow purpose that didn't constrain other uses of the algorithm, also
that the use of a computer was irrelevant as to whether that use of the
algorithm was patentable or not. The focus moving from the computer in what I
recall reading before to the algorithm in this description.
Is this a reinterpretation of the Diehr decision?[ Reply to This | # ]
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Authored by: ailuromancy on Sunday, May 12 2013 @ 04:34 AM EDT |
As far as I know, I can research how to solve problems and
not worry about
the patent system at all.
It is not until I try to sell or give my solution to
others that I
become guilty of patent infringement.
Before distribution, I am
supposed to read and understand
hundreds of thousands of obfuscated claims,
pick out all
the ones I am going to infringe and negotiate licenses
with
hundreds of trolls and established businesses that would
prefer me to drop
dead.
Is this what Judge Rader is talking about?
I would like to
read the relevant section and try to understand
why he thinks he is saying
something he thinks researchers do
not understand.
[ Reply to This | # ]
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- Rader research - Authored by: Anonymous on Sunday, May 12 2013 @ 05:13 AM EDT
- Rader research - Authored by: Anonymous on Sunday, May 12 2013 @ 02:55 PM EDT
- Research and patents - Authored by: Anonymous on Sunday, May 12 2013 @ 10:11 AM EDT
- IIRC, - Authored by: albert on Friday, May 17 2013 @ 12:33 PM EDT
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Authored by: MadTom1999 on Sunday, May 12 2013 @ 07:13 AM EDT |
I personally wont believe a word until I hear FM's apoplexy. [ Reply to This | # ]
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Authored by: Anonymous on Sunday, May 12 2013 @ 11:59 AM EDT |
Well, what happens to the Federal Circuit if it no longer has to decide software
patents. What's left?
"It is difficult to get a man to understand something when his job depends
on not understanding it."
--Upton Sinclair[ Reply to This | # ]
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Authored by: Anonymous on Sunday, May 12 2013 @ 02:36 PM EDT |
From dictionary.reference.com:
Process - systematic series of actions directed to some end
Algorithm - a set of rules for solving a problem in a finite number of steps
Many here say that software is math and seem to equate software with a proper
subset of mathematics. They also seem to equate software and algorithms.
Certainly software, at it's most basic level, is a series of steps that
manipulate zeros and ones. However it seems that a reasonable person could also
equate software with both a process and an algorithm that is directed to some
end or solves a problem.
I think most people here would agree that the Bessemer process for creating
steel is a patentable process (long expired). Adding a computer to control this
process would not be a separate patent, but if it were new and patented today,
would probably include computers and software to control the process. What it
does is control a Law of Nature (oxidation) much like Parker v. Flook.
In a more modern world, an aircraft that is aerodynamically unstable (e.g.
flying wing) cannot be controlled by a human without external support of either
a digital computer or electronic circuits that are effectively an analog
computer. In a digital computer, the software is necessary for this control.
In this case, I think the software to accomplish this task would be part of a
patentable process. Technically, the computer could be a standard PC with USB
communication with sensors and controllers. If this software were incorporated
into a real-time simulator, it could also be patentable (but also see non-101
portions of the law).
The difficulty, of course, is where to draw the line. Perhaps the practical
answer is to disallow the software portions of all software because the humans
in the patent granting process (double entendre intended) are not capable of
making a reasonable judgement in the inherently political environment that is
the patent system.
Personally, I think the patent system, as is exists today, is unconstitutional
since it does exactly the opposite of the intended purpose "To promote the
Progress of Science and useful Arts".
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Authored by: Ian Al on Monday, May 13 2013 @ 03:47 AM EDT |
Please forgive this long quote, excluding citations:
An “inventive
concept” in the § 101 context refers to a genuine human contribution to the
claimed subject matter. “The underlying notion is that a scientific principle .
. . reveals a relationship that has always existed.” (Flook). From that
perspective, a person cannot truly “invent” an abstract idea or scientific
truth. He or she can discover it, but not invent it. Accordingly, an “inventive
concept” under § 101—in contrast to whatever fundamental concept is also
represented in the claim—must be “a product of human ingenuity.”
(Chakrabarty).
In addition, that human contribution must represent
more than a trivial appendix to the underlying abstract idea. The §101
preemption analysis centers on the practical, real-world effects of the claim.
[A] process that focuses upon the use of a natural law [must] also
contain other elements . . . sufficient to ensure that the patent in practice
amounts to significantly more than a patent upon the natural law itself.”
(Mayo);
Bilski, rejecting claims that would “effectively grant a
monopoly over an abstract idea”;
Benson, “[T]he patent . . . in
practical effect would be a patent on the algorithm itself.”). Limitations that
represent a human contribution but are merely tangential, routine,
well-understood, or conventional, or in practice fail to narrow the claim
relative to the fundamental principle therein, cannot confer patent
eligibility.
For example, the “administering” and “determining” steps
in Mayo might have appeared to be concrete limitations representing true human
contributions to the claimed methods; it is difficult to see how giving a
particular man-made drug to a patient or drawing and testing blood could be
considered purely abstract or preordained. Yet the Court held that those steps
failed to render the claims patent eligible because, as a practical matter, they
were necessary to every practical use of what it found to be a natural law and
therefore were not truly limiting. “Anyone who wants to make use of these laws
must first administer a thiopurine drug and measure the resulting metabolite
concentrations . . . .” (Mayo);
Benson, noting that the
“mathematical formula involved here has no substantial practical application
except in connection with a digital computer”.
Also in Mayo, the Court
instructed that the added steps, apart from the natural law itself, must amount
to more than “well-understood, routine, conventional activity previously engaged
in by researchers in the field.”. Similarly, token or trivial limitations,
Diehr, stating that “insignificant post-solution activity will not
transform an unpatentable principle into a patentable process”,
or
vague limitations cast in “highly general language,” (Mayo), have failed to
satisfy § 101. Finally, bare field-of-use limitations cannot rescue a claim from
patent ineligibility where the claim as written still effectively preempts all
uses of a fundamental concept within the stated field.
Whether a
particular claim satisfies the § 101 standard will vary based on the balance of
factors at play in each case, and the fact that there is no easy bright-line
test simply emphasizes the need for the PTO and the courts to apply the flexible
analysis above to the facts at hand.
In Mayo, the Supreme Court
said (in extract):
The Government argues that virtually any
step
beyond a statement of a law of nature itself should transform an
unpatentable law of nature into a potentially
patentable application sufficient
to satisfy §101’s demands. Brief for United States as Amicus Curiae. The
Government does not necessarily believe that claims that (like the claims before
us) extend just minimally beyond a law of nature should receive patents. But in
its view, other statutory provisions—those that insist that a claimed process be
novel, 35 U. S. C. §102, that it not be “obvious in light of prior art,” §103,
and that it be “full[y], clear[ly], concise[ly], and exact[ly]” described,
§112—can perform this screening function. In particular, it argues that these
claims likely fail for lack of novelty under §102.
This approach, however, would
make the “law of nature”
exception to §101 patentability a dead letter. The
approach is therefore not consistent with prior law. The relevant cases rest
their holdings upon section 101, not later sections.
H. R. Rep.
No. 1923, 82d Cong., 2d Sess., 6 (1952) (“A person may have ‘invented’ a machine
or a manufacture, which may include any thing under the sun that is made by man,
but it is not necessarily patentable under section 101 unless the conditions of
the title are fulfilled” (emphasis added)).
We recognize that, in
evaluating the significance of additional steps, the §101 patent-eligibility
inquiry and,
say, the §102 novelty inquiry might sometimes overlap.
But that
need not always be so. And to shift the patent
eligibility inquiry entirely to
these later sections risks
creating significantly greater legal uncertainty,
while
assuming that those sections can do work that they are
not equipped to
do.
That could all be summarised as 'the sections after §101 are
only for evaluation of inventions that have already passed the §101, and
judicial exclusion, test of statutory subject matter'. However, both the
District Court and the Supreme Court provide extensive guidance on the 'new and
useful' part of §101 in the two quotations.
PolR commented earlier that
a narrowing of math or abstract ideas does not result in anything other that
math or abstract ideas. I added that the argument was correct for laws of
nature. The District Court observes that
Accordingly, an
“inventive concept” under § 101—in contrast to whatever fundamental concept is
also represented in the claim—must be “a product of human ingenuity.”
(Chakrabarty).
The story includes a comment from Julie Samuels, an
intellectual property lawyer with the Electronic Frontier Foundation, who said
the ruling gives little guidance to courts on patent eligibility.
It
may be that the dissenters blunt the opinion, but I think the opinion, itself,
gives very strong guidance. The opinion gives the tools to test Apple's 'swipe
to lock' and 'bounce-back' against §101 and the judicial exclusions. Similarly,
the narrowing of mathematics in the Motorola patent for negotiating sessions
using software and mobile phone chips can similarly be tested. Finally, the
Motorola SEPs in H264 (and the LA Law extortion pool) and the audio codecs can
also be tested. Apple's patents are a narrowing of abstract ideas to a
smartphone. Motorola's mobile phone and video codec patents are narrowing of
mathematics. Fraunhofer's mp3 patents are the mathematical manipulation of data
based on the natural laws of human hearing. They all bring to mind that
quotation from Benson: 'The “mathematical formula involved here has no
substantial practical application except in connection with a digital
computer”.
Now, the acid test is whether any of these patents include a
novel inventive concept over and above laws of nature, abstract ideas and math
which is a true “product of human ingenuity.”
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | # ]
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Authored by: scav on Monday, May 13 2013 @ 08:39 AM EDT |
A particular computer system, composed of wires, plastic, and
silicon, is no doubt a tangible machine. But that is not the question. The
question we must consider is whether a patent claim that ostensibly describes
such a system on its face represents something more than an abstract idea in
legal substance. Claims to computers were, and still are, eligible for patent.
No question should have arisen concerning the eligibility of claims to basic
computer hardware under § 101 when such devices were first invented. But
we
are living and judging now (or at least as of the patents’ priority dates),
and
have before us not the patent eligibility of specific types of computers or
computer components, but computers that have routinely been adapted by
software consisting of abstract ideas, and claimed as such, to do all sorts of
tasks that formerly were performed by humans. And the Supreme Court has
told
us that, while avoiding confusion between §101 and §§ 102 and 103,
merely
adding existing computer technology to abstract ideas—mental steps
—does not as
a matter of substance convert an abstract idea into a
machine.
I can see that one being brought up in all future
software patent
disputes. Because I have never seen a software patent that
would match up
against that standard. Did the Federal Circuit just indirectly
put a stake
through the "installing software makes a new machine"
vampire?
--- The emperor, undaunted by overwhelming evidence that he
had no clothes, redoubled his siege of Antarctica to extort tribute from the
penguins. [ Reply to This | # ]
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- your sig - Authored by: Anonymous on Tuesday, May 14 2013 @ 07:09 AM EDT
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Authored by: Anonymous on Monday, May 13 2013 @ 05:51 PM EDT |
Here's a thought that'll probably send the Software Patent Lawyers into
deeper dread:
Perhaps we should consider all the positive reasons all the
Judges gave as to being valid to identify why software patents should not
issue.
Instead of it being:
it should be invalid because of
this
or
it should be invalid because of that
we should
consider:
it should be invalid because of this
and
if it
weren't for the previous, it should be invalid because of that
:) {-
wish I could make that a much bigger smile :) :) ;)
I'm going to have
re-read the entire thing with that thought in mind and see how it works
out.
RAS[ Reply to This | # ]
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Authored by: Anonymous on Monday, May 13 2013 @ 07:59 PM EDT |
"First they ignore you. Then they laugh at you. Then they fight you.
Then you win." - Gandhi
For Open Source Software (OSS), we're deep into "then they fight you".
SCO was an attempt to fight using copyrights. Since that fizzled, the action
has shifted to patents (though Oracle tried to get copyrights back in the mix,
with no success). If software patents are severely limited or eliminated,
what's left?
"Intellectual property" is patents, copyrights, trade secrets, and
trademarks. Trade secrets and trademarks aren't going to work against OSS (with
possible exceptions when the OSS project messes up, but that won't stop the
movement as a whole). That means, if patents are off the table, intellectual
property can't be used to try to stop OSS any more.
That means the only way left for fighting OSS is features, performance, and ease
of use. And then we win.
That is, I think this decision is the decisive blow on the last major front in
the OSS war. The war's over, and we just won. That's how big this decision
is.
(Yes, I know, I'm going a bit too fast. It depends on what the Supreme Court
does with this, and how consistently it's applied, and a lot of other things.
But I think it's all over with this decision, save for a few finishing
skirmishes.)
MSS2[ Reply to This | # ]
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Authored by: Anonymous on Monday, May 13 2013 @ 11:56 PM EDT |
Take a look at this comment by the Chief Judge in the portion of the
opinion
by RADER, Chief Judge, LINN, MOORE, and O’MALLEY, Circuit
Judges, as to all but
part VI, concurring-in-part and dissenting-in-part.
RADER, Chief Judge, and
MOORE, Circuit Judge, as to part VI:
1 No portion of any opinion
issued today other than our
Per Curiam Judgment garners a majority. The court
is evenly split on the
patent eligibility of the system claims. Although a
majority of the judges on
the court agree that the method claims do not recite
patent eligible subject
matter, no majority of those judges agrees as to the
legal rationale for that
conclusion. Accordingly, though much is published
today discussing the
proper approach to the patent eligibility inquiry, nothing
said today beyond
our judgment has the weight of
precedent.
Whatever you may think of Judge Rader and his views
on patents,
there is no doubt that this statement is legally correct.
So
the importance of this decision as it applies to so-called "software
patents"
in general (as opposed to ONLY the patent at issue in this case) is
probably
being vastly (or more precisely, infinitely) overrated.
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Authored by: Anonymous on Tuesday, May 14 2013 @ 12:35 AM EDT |
"Alappat's idea that software makes a computer a new, dedicated machine is
hilariously wrong, technically."
It amazes me that this idea took hold. Surely the player piano and programmable
loom were not turned into new machines by changing their program to a new song
or weaving pattern. How can those not be clear precedent that programming
doesn't create a new machine?
That speed makes something patentable is similarly bizarre. I'll allow that
speed may make something useful, but there is no invention in using a computer
as designed to gain the intended benefits. There was invention in the creation
of the computer, but not in using it as designed.
Unless there are detailed specifications for computing, storage, or
communications requirements those requirements are not inventive. "This
invention will be implemented on general purpose computers, data storage, and
communications equipment" belongs in the preamble, not the claims.[ Reply to This | # ]
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- Alappat's idea, speed, and vague computer requirements - Authored by: Anonymous on Tuesday, May 14 2013 @ 02:23 AM EDT
- Alappat's idea, speed, and vague computer requirements - Authored by: Anonymous on Tuesday, May 14 2013 @ 05:28 AM EDT
- Alappat's idea, speed, and vague computer requirements - Authored by: PJ on Tuesday, May 14 2013 @ 07:08 AM EDT
- Alappat's idea, speed, and vague computer requirements - Authored by: PolR on Tuesday, May 14 2013 @ 01:38 PM EDT
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Authored by: Ian Al on Tuesday, May 14 2013 @ 04:49 AM EDT |
I have been struggling through the 'dissenting in part opinion'. I suffer from
my considerable disagreement with what is opined.
The argument appears
to be that the method claimed is abstract, but that the system claims are
statutory. A lot of the argument appears to stem from the early work of Judge
Rich and Congress.
The court opinion says:Congress plainly
contemplated that the patent laws would be given wide scope.”); Bilski, 130 S.
Ct. at 3225 (“Congress took this permissive approach to patent eligibility to
ensure that ‘ingenuity should receive a liberal encouragement.’” (quoting
Chakrabarty, 447 U.S. at 308)).
and
Accordingly, an
“inventive concept” under § 101—in contrast to whatever fundamental concept is
also represented in the claim—must be “a product of human ingenuity.” See
Chakrabarty, 447 U.S. at 309.
The dissenting opinion
says:My colleagues believe that the trajectory the Supreme Court has
set for § 101 requires us to conclude that all of the claims at issue here are
directed to unpatentable subject matter. Respectfully, my colleagues are
wrong.
To get to their conclusion, my colleagues trample upon a
mountain of precedent that requires us to evaluate each claim as a whole when
analyzing validity. As the Supreme Court recognized in Bilski, whether a claim
is tied to a machine is “an important and useful tool” for as- sessing that it
is directed to patent eligible subject matter. Bilski v. Kappos, 130 S. Ct.
3218, 3227 (2010).
In Diehr, the Supreme Court said:In
determining the eligibility of respondents' claimed process for patent
protection under 101, their claims must be considered as a whole. It is
inappropriate to dissect the claims into old and new elements and then to ignore
the presence of the old elements in the analysis. This is particularly true in a
process claim because a new combination of steps in a process may be patentable
even though all the constituents of the combination were well known and in
common use before the combination was made. The "novelty" of any element or
steps in a process, or even of the process itself, is of no relevance in
determining whether the subject matter of a claim falls within the 101
categories of possibly patentable subject matter.
The dissenting
opinion seems to be asserting that a method that is a new use of an existing
machine (one of the definitions of 'process' in §100) is statutory subject
matter.
That is only true if the invented method is not one of the
judicial exclusions. Otherwise, claims drawn to a system are not transformed
into statutory subject matter.
The dissenters propose that the system
claims be evaluated separately from the method claims, but somehow as a whole,
when analyzing validity. This is exactly what the Supreme Court warns against in
Diehr. Even more troubling is that the system claims address the old elements
and the dissenters propose that the old elements in the analysis can counter the
invalidity of the new elements if they are in one of the four valid §101
catagories of invention.
The old system elements do not contain the
required human ingenuity required for a new patentable invention.
From
the main opinion:[B]are field-of-use limitations cannot rescue a
claim from patent ineligibility where the claim as written still effectively
preempts all uses of a fundamental concept within the stated field. Bilski, 130
S. Ct. at 3230 (discussing Flook and Diehr).
Since the dissent
calls on the work of Judge Rich and Congress, the following quote from Judge
Rich is appropriate:The first door which must be opened on the
difficult path to patentability is Section 101 . . . The person approaching that
door is an inventor, whether his invention is patentable or not . . . Being an
inventor or having an invention, however, is no guarantee of opening even the
first door. What kind of an invention or discovery is it? In dealing with the
question of kind, as distinguished from the qualitative conditions which make
the invention patentable, Section 101 is broad and general; its language is:
“any * * * process, machine, manufacture, or composition of matter, or any * * *
improvement thereof.” Section 100(b) further expands “process” to include “art
or method, and * * * a new use of a known process, machine, manufacture,
composition of matter, or material.” If the invention, as the inventor defines
it in his claims (pursuant to Section 112, second paragraph), falls into any one
of the named categories, he is allowed to pass through to the second door, which
is Section 102; “novelty and loss of right to patent” is the sign on it.
Notwithstanding the words “new and useful” in Section 101, the invention is not
examined under that statute for novelty because that is not the statutory scheme
of things or the long-established administrative
practice.
However, §101 contains the words "invents or discovers
any new and useful process, machine, manufacture, or composition of matter".
Notwithstanding Judge Rich's comments, I refer you to the opinion of the Supreme
Court in Bilski:A conclusion that business methods are not
patentable in any circumstances would render §273 meaningless. This would
violate the canon against interpreting any statutory provision in a manner that
would render another provision superfluous. See Corley v. United States ,
556 U. S. ___, ___ (2009) (slip op., at 9). This principle, of course, applies
to interpreting any two provisions in the U. S. Code, even when Congress enacted
the provisions at different times.
The Supreme Court makes it
quite clear that all the text in §101 must be taken into consideration when
considering patentability and in Chakrabarty they make it quite clear that the
invention must be the result of human ingenuity. If system claims do not include
an inventive concept resulting from human ingenuity, then the claims are not
statutory subject matter.--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | # ]
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Authored by: Ian Al on Wednesday, May 15 2013 @ 02:00 AM EDT |
Most devices, methods and processes significantly more complex than a hammer are
computer-based in some part.
'Computer-based' is no longer a limitation. Most innovations must, as a matter
of practicality, be computer-based.
These days innovations tend to use a specific form of general purpose computer;
the app on a smartphone.
Since the app is the general implementation of innovations rather than a limited
implementation, smart-mobile-phone based claims can no longer be deemed a
limitation of any sort under patent law.
Rather than the limitation leaving out a broad scope of alternative
implementations, it monopolises the only commercially practicable
implementation. It fails to meet the legal purpose of the patent claims
limitation.
---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid![ Reply to This | # ]
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Authored by: macliam on Wednesday, May 15 2013 @ 07:30 PM EDT |
On pages 4-5 of her opinion, Judge Moore wrote:
But if
meaningfully tying a method to a machine can be an
important indication of
patent-eligibility, how can a claim to the machine itself, with all its
structural and functional limitations, not be patent-eligible?
To
give a concrete example:
But if a method requiring a mineral to be
heated in an oven to a temperature of exactly 314 degrees Celsius can be
patent-eligible, how can a claim to an ‘oven, configured to heat a mineral
to a temperature of exactly 314 degrees Celsius’, with all its structural
and functional limitations, not be patent-eligible?
The
unconfigured oven may be an ineligible general-purpose oven, and prior art to
boot, but, under Judge Moore's principle (which appears to be the Alappat
Doctrine, suitably generalized), the oven configured to heat minerals to the
specific temperature under the control of the appropriate dial or slider is a
special-purpose machine which is a machine distinct from the general-purpose
unconfigured oven and thus is clearly patent-eligible. So unless you can locate
a patent with an earlier priority date that teaches an oven configured to heat
minerals to the specific temperature required, or a reference to such an oven in
the prior art, you can patent the configured oven. But if there were to exist
prior art, you could add extra claim limitations, such as requiring the oven to
be capable of holding at least 6 cubic metres of said mineral, till you arrived
at a configured oven not apparently described in the prior art, and patent your
wonderful ‘invention’. [ Reply to This | # ]
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