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Probably most telling paragraph of Judge Rader's reflections | 709 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
A Red Dress Day for PJ!
Authored by: Anonymous on Friday, May 10 2013 @ 04:11 PM EDT
Well-deserved, too!

[ Reply to This | # ]

correshuns -------> corrections here
Authored by: webster on Friday, May 10 2013 @ 04:12 PM EDT
.

celebrate elsewhere

.

[ Reply to This | # ]

Fed. Circuit en banc rules in CLS Bank ~pj
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 | # ]

Key footnote on page 9
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 | # ]

They say it like it's a bad thing.
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 | # ]

"appending generic computer functionality . . . does not meaningfully limit claim scope"
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 | # ]

Totally Sweet - my heart actually skipped a beat
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 | # ]

Off Topic Thread Here...
Authored by: lnuss on Friday, May 10 2013 @ 04:53 PM EDT
...

---
Larry N.

[ Reply to This | # ]

Newspicks Thread Here...
Authored by: lnuss on Friday, May 10 2013 @ 04:54 PM EDT
...

---
Larry N.

[ Reply to This | # ]

COMES Thread Here...
Authored by: lnuss on Friday, May 10 2013 @ 04:55 PM EDT
...

---
Larry N.

[ Reply to This | # ]

Gene Quinn is apoplectic
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 | # ]

Not a precedent
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 | # ]

Do we have any fashion school people anywhere?
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 | # ]

A serious question for Judge Rader
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 | # ]

Thinking of the Lawyers?
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 | # ]

I hate to disagree but...
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 | # ]

So...... who's going to overrule the Federal Circuit????
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 | # ]

Fed. Circuit en banc rules in CLS Bank ~pj
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 | # ]

from patent eligibility to patent alledgeability n.t.
Authored by: Anonymous on Friday, May 10 2013 @ 06:10 PM EDT
.

[ Reply to This | # ]

Apple v Samsung
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 | # ]

"A computer is just a calculator..."
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 | # ]

Probably most telling paragraph of Judge Rader's reflections
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 | # ]

reading now, highlights as I go
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 | # ]

Federal Circuit, en banc, rules in CLS Bank ~pj
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 | # ]

so all software patents issued to date are invalid
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 | # ]

Forget the Supreme Court...
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 | # ]

The end of "... using a computer" patents
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 | # ]

Perhaps my favourite quote
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 | # ]

Techdirt's take
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
Ramifications
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 | # ]

Federal Circuit, Great news :-)
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 | # ]

Need to worry ? "Such are surely patent-eligible machines "
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 | # ]

The quote that matters: At its most basic, a computer is just a calculator (short and pointed)
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 | # ]

Or, is it merely a Trojan horse designed to enable abstract claims to slide through the screen..
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

[ Reply to This | # ]

Abstract methods do not become patent-eligible machines by being clothed in computer language.
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

[ Reply to This | # ]

I thought a computer was a state machine
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 | # ]

Federal Circuit, en banc, rules in CLS Bank ~pj Updated 2Xs
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.

[ Reply to This | # ]

3. Diamond v. Diehr
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 | # ]

Rader research
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 | # ]

  • 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
Federal Circuit, en banc, rules in CLS Bank ~pj Updated 3Xs
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 | # ]

Abolish their own jobs?
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 | # ]

Some definitions
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".

[ Reply to This | # ]

Inventive concepts, abstract ideas and laws of nature.
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 | # ]

    A killer quote
    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 | # ]

    • your sig - Authored by: Anonymous on Tuesday, May 14 2013 @ 07:09 AM EDT
    A Radical thought to consider
    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 | # ]

    Here's how big this really is
    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 | # ]

    Before you put on that red dress...
    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.

    [ Reply to This | # ]

    Alappat's idea, speed, and vague computer requirements
    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 | # ]

    “a product of human ingenuity.”
    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 | # ]

    'computer-based limitations'
    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 | # ]

    Judge Moore's opinion, pages 4-5
    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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