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| Authored by: Ian Al on Thursday, May 30 2013 @ 02:30 AM EDT |
The Diehr comment referred to Flook:
Second, respondent assumes
that the fatal objection to his application is the fact that one of its
components - the mathematical formula - consists of unpatentable subject matter.
In countering this supposed objection, respondent relies on opinions by the
Court of Customs and Patent Appeals which reject the notion "that a claim may be
dissected, the claim components searched in the prior art, and, if the only
component found novel is outside the statutory classes of invention, the claim
may be rejected under 35 U.S.C. 101." (Chatfield). Our approach to respondent's
application is, however, not at all inconsistent with the view that a patent
claim must be considered as a whole. Respondent's process is unpatentable under
101, not because it contains a mathematical algorithm as one component, but
because once that algorithm is assumed to be within the prior art, the
application, considered as a whole, contains no patentable invention. Even
though a phenomenon of nature or mathematical formula may be well known, an
inventive application of the principle may be patented. Conversely, the
discovery of such a phenomenon cannot support a patent unless there is some
other inventive concept in its application.
Here it is absolutely
clear that respondent's application contains no claim of patentable invention.
The chemical processes involved in catalytic conversion of hydrocarbons are well
known, as are the practice of monitoring the chemical process variables, the use
of alarm limits to trigger alarms, the notion that alarm limit values must be
recomputed and readjusted, and the use of computers for "automatic
monitoring-alarming." Respondent's application simply provides a new and
presumably better method for calculating alarm limit values. If we assume that
that method was also known, as we must under the reasoning in Morse, then
respondent's claim is, in effect, comparable to a claim that the formula 2(pi)r
can be usefully applied in determining the circumference of a wheel. As the
Court of Customs and Patent Appeals has explained, "if a claim is directed
essentially to a method of calculating, using a mathematical formula, even if
the solution is for a specific purpose, the claimed method is nonstatutory."
(Richman).
I quoted Diehr in order to point out that I was not
claiming that the use of a law of nature, math or abstract ideas in an invention
made it non-statutory.
What the Supreme Court said is that a process
invention using math, laws of nature and/or abstract ideas for part of the
process or method, but incorporating an inventive application of the principle
may be eligible for a patent. However, "if a claim is directed essentially to
'simply providing a new and presumably better method for calculating' something
"using a mathematical formula, even if the solution is for a specific purpose,
the claimed method is nonstatutory.". A claim which is in one of the four
eligible statutory areas still has to satisfy all parts of §101 and is still
limited by the judicial exceptions.
The Supreme Court have often been
criticised for not providing a bright line definition of what is a claim drawn
to one of the judicial exclusions versus one drawn to an eligible inventive
concept. Also from Flook:The line between a patentable "process" and
an unpatentable "principle" is not always clear. Both are "conception[s] of the
mind, seen only by [their] effects when being executed or performed." (Tilghman
v. Proctor)...
Neither the dearth of precedent, nor this decision,
should therefore be interpreted as reflecting a judgment that patent protection
of certain novel and useful computer programs will not promote the progress of
science and the useful arts, or that such protection is undesirable as a matter
of policy.
In Bilski, the Supreme Court said:Today,
the Court once again declines to impose limitations on the Patent Act that are
inconsistent with the Act’s text. The patent application here can be rejected
under our precedents on the unpatentability of abstract ideas. The Court,
therefore, need not define further what constitutes a patentable “process,”
beyond pointing to the definition of that term provided in §100(b) and looking
to the guideposts in Benson, Flook, and Diehr .
Although the
use of Fast Fourier Transforms on data files representing speech may be a new or
improved application of math for the specific purpose of using a computer for
dictation transcription, the precedent of Flook says it is
non-statutory.
You are wrong about the Supreme Court's use of the word
'draftsman'. It refers to the inventor and uses the term draftsman to describe
the inventor drawing up the detailed specification of his invention for the
patent application. The patent lawyer is not supposed to be adding to the
claimed invention.
Again, from Flook:If we assume that
that method was also known, as we must under the reasoning in Morse, then
respondent's claim is, in effect, comparable to a claim that the formula 2(pi)r
can be usefully applied in determining the circumference of a
wheel...
The notion that post-solution activity, no matter how
conventional or obvious in itself, can transform an unpatentable principle into
a patentable process exalts form over substance. A competent draftsman could
attach some form of post-solution activity to almost any mathematical formula;
the Pythagorean theorem would not have been patentable, or partially patentable,
because a patent application contained a final step indicating that the formula,
when solved, could be usefully applied to existing surveying techniques. The
concept of patentable subject matter under 101 is not "like a nose of wax which
may be turned and twisted in any direction . . . ." (White v. Dunbar).
Using FFT mathematics to detect phoneme patterns in human speech,
using math probability theory to evaluate the words actually being spoken and
then using a dictionary to present the words as text with the correct spelling,
is an abstract idea. The inventive concept is to use math in place of a person's
learned ability to interpret speech and write the text. The inventive concept is
drawn to ineligible judicial exclusions to §101. The addition to the patent of
'do the math on a computer' is not an inventive concept and adding on-a-computer
post-solution activity to the math claims is not sufficient to 'transform an
unpatentable principle into a patentable process'.---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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| Authored by: Anonymous on Thursday, May 30 2013 @ 03:41 PM EDT |
ROFL!
The conclusion in the subject assumes the USPTO always issues
valid patents - patents that are never overturned by the USPTO.
Such a
statement is - pun intended - patently false!
It is clear - due to the
fact the Supremes have to invalidate granted patents - that the USPTO itself has
an invalid interpretation.
Now that doesn't mean our interpretation is
correct, it can be wrong also!
But it certainly can't be logically stated
that "since our interpretation is different to the USPTO, our interpretation is
wrong".
RAS[ Reply to This | Parent | # ]
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