Bilski v. Doll (Supreme Court 2009)
The Supreme Court has granted certiorari in an important case challenging the scope of patentable subject matter. [Order]
Questions Presented:
Whether the Federal Circuit erred by holding that a “process” must be tied to a particular machine or apparatus, or transform a particular article into a different state or thing (“machine-or-transformation” test), to be eligible for patenting under 35 U.S.C. § 101, despite this Court’s precedent declining to limit the broad statutory grant of patent eligibility for “any” new and useful process beyond excluding patents for “laws of nature, physical phenomena, and abstract ideas.”
Whether the Federal Circuit’s “machine-or-transformation” test for patent eligibility, which effectively forecloses meaningful patent protection to many business methods, contradicts the clear Congressional intent that patents protect “method[s] of doing or conducting business.” 35 U.S.C. § 273.
Prior Coverage of the Case:
- Supreme Court Docket
- Mar 5, 2009: Bilski v. Doll: Round I of Amicus Briefs
- Mar 1, 2009: Patentable Subject Matter Redux: Bilski 2009
- Jan 30, 2009: BPAI Again Rejects System Claims under Bilski
- Jan 28, 2009: Bilski Petitions Supreme Court to Decide Issues of Patentable Subject Matter
- Jan 27, 2009: Should Patent Attorneys Support Bilski?
- Nov 18, 2008: Software Method Claims: Bilski in light of Benson
- Nov 13, 2008: Post-Bilski BPAI Approves of Beauregard Claims
- Nov 10, 2008: Applying Bilski to Metabolite’s Diagnosis Claim
- Nov 4, 2008: Holman: Applying Bilski to Biotechnology and the Life Sciences
- Nov 2, 2008: Collins: In re Bilski: Tangibility Gone “Meta”
- Oct 30, 2008: In re Bilski: Patentable Process Must Either (1) be Tied to a particular machine or (2) Transform a Particular Article
- May 8, 2008: CAFC Hears En Banc Bilski Case (oral arguments)
- Apr 10, 2008: Ex Parte Bilski: On the Briefs
- Mar 28, 2008: Ex Parte Bilski: Once Again Rethinking the Scope of Patentable Subject Matter
- Feb 15, 2008: Bilski: Full CAFC to Reexamine the Scope of Subject Matter Patentability
Documents:
- Supreme Court: Bilski Petition for Certiorari
- Supreme Court: Government Opposition to Certiorari, Bilski Government Opposition to Certiorari
- Supreme Court: Bilski Reply in Support of Certiorari, Bilski.reply.pdf
- Supreme Court: Nine Amicus Briefs In Support of Certiorari.
- Federal Circuit: En Banc Decision: 07-1130.pdf
- Federal Circuit: Dozens of Amicus Briefs
- PTO Board of Patent Appeals & Interferences Bilski Decision: BPAI.Bilski.pdf
Amicus Support:
- According to the Supreme Court rule, the petitioner (here Bilski) now has 45 days to file its opening brief on the merits. The respondent's brief is ordinarily due within thirty days of that date. Any amicus brief would be due 7 days after the filing of the brief for the party being supported. This pushes the deadline for the first round of amicus briefs to the week of July 20.
Actual Inventor,
Thank you for taking the time to read and learn. I do appreciate it. You previously inquired as to my opinion on why all how-to instructional processes should or should not be eligible for both copyright and patent protection.
You may not have a complete understanding on the Printed Matter Doctrine, but you display better understanding about the roles of Patents and Copyrights than most software anti-patent people and some of the most strident commentators on the Patently-O Blog.
My opinion, put in a nutshell and expressed so the lay person can understand, is that copyright is for expression without function, while patents are for function (among other things). Those in the legal arena will recognize this is a great simplification (for example, apparatus and compositions are patented in their own right and design patents are a different animal). In this sense, I believe that we are of like mind. Furthermore, the law in this area is indeed in flux. It can be bewildering to keep track of the nuances and not so nuanced differences in opinions about patentability and patents in general. Understanding the rationale behind the beliefs can be a major undertaking.
It may help to keep in mind that the word “process” in the legal arena does NOT hold the same exact meaning as “process” in the everyday world. In the legal world, several critical areas have been deemed outside the bounds of patentable subject matter. A “process” in such an area may be understood to be a real world process, but still not be patentable.
You may be surprised that copyright rights are automatic – they do not have to be applied for. Registering your copyright, while not required, does bring some critical advantages. Patents, on the other hand, must be applied for and fought for. Once obtained, they must be protected and applied. While you disdain lawyers (for whatever reason), and having a lawyer is not a requirement, having a good lawyer can be highly beneficial.
I hope all the best for you, whether you find that beneficial lawyer or remain solo, and please continue expressing yourself on the patent blogs.
Thats how I see it as well
Well of course I have potential to swallow the party line. But I don’t live in a commy country so I choose not to 🙂
300 comments, who’s with me?
Malcolm,
Another non-answer – you have managed to miss my already low expectations. Although if you keep stepping away from the computer, you will at least have a reason for a non-answer which is more than you have now.
NAL: “Since February when I first asked you to man up, the boards have been largely free of your polluted argument (at least of the Cookbook Fallacy). For four months you largely gave up the ghost, and now in the fifth month you start returning to the argument, never having answered the man-up challenge.”
The “man-up challenge”? What in sam hill are you talking about?
“Reviewing the Patently-O posts for the past year and a half”
[slowly steps away from the computer]
6 said: >>Sorry if your applications are dropping like >>flies at the office.
No they are not. Actually, 101 has presented almost no problems for me. Just minor twicks.
>>Careful NWPA,
>>You are assuming that 6 is actually interested >>in an answer and willing to reason rather than >>merely playing his briar patch games.
>>Don’t forget about 6’s invincibility of >>persistent ignorance.
Yes, I am afraid you are right. Too bad really. He has potential.
6,
Do you think that a rant from an anti-patent software person is truly indicative of a PHOSITA?
A true PHOSITA is an imaginary construct used purely to indicate a skill level. Attributing the mantra of anti-software ranting seems out of place and frankly, disingenuous.
If you followed the discussions over at ip watchdog (especially some of the December conversations that are now lost due to the switchover from PLI) you would see many rants by anti-patent software people. And while there is much to learn about how certain software people view their craft (views NOT universally held, mind you), these rants largely fail to show understanding of even the basics of patent law.
I realize that you, as someone has put it, like to play the fool provocateur. May I suggest that you pull quotes from groklaw if you want to provocatively play the anti-patent game?
“Therefore it seems to me every printed set of instructions is an invention that should be eligible for patent protection and the only ineligible printed matter would be pure artistic works that did not teach or instruct. And thats my opinion on that.”
Great, AI wants to patent recipes.
I was just over at ipwatchdog for some lolz and I came across this. I felt like those involved in this thread perhaps might benefit from having seen, once again, the perspective of the poshitas.
“> The Open Software movement which I think is good has created many free packages that were the result of commercial PATENTED packages. The Open software arena is not disciplined enough to bring a fully tested product and disseminate information and innovation to the masses.
Most of those words mean absolutely nothing to anyone who actually writes code, though they’re often uttered by those who manage them. I’m not going to argue with your distorted notion of history, except to mention that some of those packages existed long before software patents and that there are well-tested, well-documented systems available for free. But it’s the “disseminate information” part that really gets you. Source code is information to us. More than a few Ph.Ds in computer science have been built from projects within the Linux kernel, for example.
Like your words, software patents, too, are completely obtuse and 100% useless to any of us who write code. I’ve read them. They’re written by lawyers for judges. We have to simplify them to the level of “a patent for a system using cookies and database references to allow someone to buy a product with one mouse click” because that’s as much as we can understand once the claims have been rewritten to cover as much patentable subject matter as possible while disclosing as little useful information as possible. To us, software patents are useless things the managers and lawyers came up with so they would have reasons to sue their competitors and distort the marketplace in their favor under the guise of “innovation.”
The patents don’t “disseminate information” at all and “innovation” is just a silly buzzword used by those who want to create complex schemes to commoditize and monetize the act of thinking. When we want to actually get some of that information from others, we turn to code we license from other people or reuse from open source (which already covered by copyright) fills in all those helpful details the patents never usefully describe. Source code is, in fact, the best mode of describing computer software as far as we, the people who actually make these inventions, are concerned. I don’t remember seeing anything I could compile on any of the patents I have read which cover software. To us, the “best mode” requirements as applied to software patents are a sick joke. The algorithms get rewritten into leaglese when there are perfectly useful, incredibly precise, ways of describing them that are actually useful merely because lawyers don’t know our language.
It gets worse when we have to endure legal fiction. Sometimes I see lawyers arguing that software isn’t math. The site link to metamath.org should suffice to prove that wrong.
I guess what I’m trying to say is that, to us who write code, software patents are nothing but a pain. They don’t help me create new and better software. They don’t “incentivize” me. They don’t even improve my pay. They merely help businesses sue each other and waste time arguing over whether a general purpose computer with common, standardized attachments is a “particular” machine or whether shuffling electrons around in a standard way on a commodity device should have been considered a “transformation.”
I guess I’d much rather spend my time writing useful software than arguing about that stuff. But I guess that’s not an option for everyone?”
He makes for a rather poignant point as to why software patents are both not wanted by them, and not needed, as well as tacking on some ancillary thoughts as to why they shouldn’t be allowed.
“Can you do this when you are supposed to be reading the claims in light of the specification?”
That depends on the specification now doesn’t it? The answer to your question is though, oftentimes yes, sometimes no.
“How long have you been an examiner? Are there other examiners that can answer my first question?”
Just now 3 years I believe. Maybe a little less. Yeah, a little less I think. I don’t know why you’d need other examiners to answer your first question, but I’m sure there are some.
“In engineering school one is taught to think at the proper level of abstraction.”
The “proper level”? Hahahaha. How ironic. You’re right, engineering school will teach one that. I wonder then, why it is that you insist upon not operating at the proper level and instead operating at a vastly overbroad abstract level?
“An abstraction in patent law goes to whether or not a PHOSITA can make and practice the invention.”
Not only does it go to that, but it goes to whether or not you have actually recited the invention. And furthermore, it goes to whether or not you enabled the full scope of the invention, and so on and so on, law after law.
I’m going to be honest with you, we have been over this before, and you were just as bad at discussing it then. And, I don’t even remember the original reason you brought it back up in this thread. So, I’ll let it die here.
But first,
“The fact is that transforming a set of numbers represented in a computer readable memory from being unsorted to being sorted is a transformation in every sense of the word.”
You keep presenting this, but I don’t really understand why you keep presenting it at all. Are you arguing with my 102 rejection scheme above? My take on Bilski? What exactly? You just out and say it, and there it is, and then it’s like “Okay, who gives a sht even if you’re right?” I’m not going to bother saying too much otherwise unless you have some point to argue.
“I mean by both what a physicist would think of as a transformation and what a court should think of as a transformation.”
If this is your only point, I’ll disagree, the courts can decide what they should and should not think of as a transformation. Especially when you don’t actually recite the transformation.
I’m guessing then that your problem is Bilski. Let us suppose that I have recited a method, and this is a method of actually causing a transformation. Let us suppose that on first go around, I didn’t include limitations covering the transformation. Let us then suppose that second go I saw the light, but only amended the claim to say “wherein a transformation occurs.” at the end. Now, certainly, my method does cause a transformation, but is the above a sufficient recitation of what that actual transformation was? It is an abstraction. An overbroad one for our purpose of requiring that there be the actual transformation which occurred be recited. Even you’ll agree there certainly. Thus, that recitation is probably insufficient to satisfy Bilski, especially when considering 112 along with it, particularly point out and all that. Now, the reason that it is improperly overbroad, is of course because it doesn’t actually tell us anything that was transformed. Let us then suppose that on third go around I recite “wherein the transformation is a transformation of a physical object”. Is that good enough? Nah, probably not. And you know it. So I then recite “wherein a bicycle frame is transformed”. Still probably not good enough, ya know? So I recite finally “wherein aluminum is plated onto a bicycle frame”. Wallah! The full transformation is recited! We have the article being acted upon, and the action acting upon the article, which will necessarily produce a transformed article.
Looking now to the instant unsorted>sorted list, the same thing occurs. The actual transformation was a lot of changes in a screen and connecting wires, as well as a processor and maybe some ancillary components. None of that is actually recited. You may therefor, have a problem with Bilski. Let us suppose that on first go around I recite the change of unsorted>sorted list. I am in effect claiming the transformation of one manner of perceiving an image to another manner of perceiving an image. That is not really a transformation. What was transformed was some signals etc. in the machine and the pattern of light generated. None of that has yet to be recited.
“So, the way to think about this is can one make and practice the invention? Is it useful? ”
That’s your take on it. Their take on it is a little different. They say they’d like to know pretty specifically what the transformation is, and they’d like it in the claim. Simple as that man. I agree with them that this is reasonable to expect.
Sorry if your applications are dropping like flies at the office.
Actual Inventor,
Thank you – even though you have a chip on your shoulder in regards to actual attorneys, your contributions to this board have more honesty and integrity than the more vocal, emptily clanging MM. While your take on Printed Matter Doctrine is not quite on, it is much closer to the mark than the supposedly knowledgeable Malcolm.
Please keep posting!
Actual Inventor | Jun 05, 2009 at 10:41 PM
good analysis
Breadcrumbs wrote:
“You have a perspective that is not “lawyer-tainted” per se.
What do you think of the Printed Matter Doctrine?”
Well, my opinion is from the perspective of an “Actual Inventor” And as such it seems to me that every application is a printed process that is given the status of being an invention reduced to practice. Yet, we know applications are just printed matter, and not an actual process ( series of acts) machine, article of manufacture, or chemical composition.
Therefore it seems to me every printed set of instructions is an invention that should be eligible for patent protection and the only ineligible printed matter would be pure artistic works that did not teach or instruct. And thats my opinion on that.
Malcolm,
The original challenge to you concerning Printed Matter Doctrine that started your track meet wasn’t even by me – I just was tired of your pedantic arguments and weasel responses to David Stein.
In your typical fashion of running away and running away and running some more; and only after you think you have run far enough away so that your opponents would be disadvantaged to try to go back to the original, do you stop and re-fire the baseless line of argument.
It was immensely ironic that you actually posted about posting in honesty and integrity, for you have neither.
Reviewing the Patently-O posts for the past year and a half it is stunning to see how you abuse others, run your mouth, argue without fact or supporting caselaw, and twist and subvert arguments regardless of actual truth or veracity. You show the classic training that 6 also employs.
In the particular instance, your virulent abuse of the “cookbook patentability” argument ran to the extreme until the Patently-O thread “Classen v. Biogen: Request for Rehearing” dated Feb. 02, 2009. In that thread your lunacy pushed the bounds too far and on page two of the comments I first asked you to man up and provide a substantive reply to questions put forth by David Stein. See “link to patentlyo.com
You will no doubt now complain that I merely provide a link to the arguments rather than once again restate the arguments. Honestly, do you think that either one will achieve a substantial answer from you when you have no answer? You have no answer because your position simply cannot stand in the light of the Printed Matter Doctrine? How like 6 to ask for someone to repeat what has already been said – in obvious hope that retyping introduces some error or fault that can be pounced upon and used as an escape hatch, avoiding finally manning up and providing the critical answer.
You also, in typical fashion, seek to paint my vigilance against your classless argument as an aberrant obsessive fault. How much integrity is involved in such a move? Since February when I first asked you to man up, the boards have been largely free of your polluted argument (at least of the Cookbook Fallacy). For four months you largely gave up the ghost, and now in the fifth month you start returning to the argument, never having answered the man-up challenge.
Sure it is entertaining to see you put forth your predictable posts and the train-wreck of opinions without substance. You are prodigious in your spewing. But do not mistake volume for quality or even being right. It was telling that in your humorous self-portrayal of posting in “honesty and integrity” you explicitly discounted the matter of actually being right. In a sense, though, knowing that you are NOT right and persevering in holding a position fails the honesty and integrity tests.
I await your insubstantial reply without hope of it actually having any meaning.
Careful NWPA,
You are assuming that 6 is actually interested in an answer and willing to reason rather than merely playing his briar patch games.
Don’t forget about 6’s invincibility of persistent ignorance.
6: I think we have been through this before. In engineering school one is taught to think at the proper level of abstraction. In fact, that is one of the first things you are taught. I’ve been to two of the top 5 engineering schools in this country and both taught me that as basic principle of problem solving. In fact, that was drilled into my head. An abstraction in patent law goes to whether or not a PHOSITA can make and practice the invention.
The fact is that transforming a set of numbers represented in a computer readable memory from being unsorted to being sorted is a transformation in every sense of the word. And by in every sense of the word, I mean by both what a physicist would think of as a transformation and what a court should think of as a transformation.
Black holes and information are relevant to patent law, because it illustrates that information plays a central role in understanding the physical world just as mass, energy, and light do. (which all are abstractions, of course.)
The fact is that a transformation of information is every bit as much as a transformation as what goes on in MM’s test tubes.
So, the way to think about this is can one make and practice the invention? Is it useful?
Just read the Boston AIPLA Amicus brief for Cert. Wow! Now I see why the SCOTUS granted Cert and there is no doubt that the Bilski test will be struck down as the exclusive test for 101 eligibility.
However it wont be unanimous. The SCOTUS itself has historically been split like the entire population, on 101 issues and old Stevens, the Diehr dissenter is still on the bench. He could finally get his chance for revenge for Flook and possibly bring a couple of non forward thinking justices with him like Scalia and Thomas.
Ultimately, it will be Sotomayer that saves the day for a 5/4 split in favor of striking down the the strict machine or transformation test.
As for as Bilski the SCOTUS will send his case back to be reviewed for 102 and 103, if they can do that. Thats what should be done anyway.
Look for the SCOTUS to say its long standing precedent is clear and still good law and while the machine or transformation test can be used its not the only one. A pioneering technology or inventions test can also be considered. Such pioneering inventions will make it pass 101 and most likely 102 but may still fail under 103 with KSR.
The court will also point out that physical acts that carry out a series of steps to make or use some thing are all eligible whether are not they are dependent on a machine or transform any article. Leaving patent attorneys to argue over the meaning of the work “make.” You gotta love patent attorneys.
Also, do not expect the court to specifically address software patents and the ruling while not eliminating software will still leave the issue open for debate and possible future court challenges.
Well, there you have it! Hmm wonder if I can submit an Amicus brief. The court needs to hear from an “Actual Inventor”
“I can take the abstraction which you made, and interpret it differently to cover things which you didn’t intend for your specific purpose”
Can you do this when you are supposed to be reading the claims in light of the specification?
“…how Hawking accounts for the information of the location of a black hole escaping a black hole?”
How long have you been an examiner? Are there other examiners that can answer my first question?
“6, what is the difference between flying and falling?”
Nothing, until you hit the ground.
link to gotoandlearnforum.com
This website says:
“The difference between flying and falling is the amount of confidence you have when you hit the ground, often painfully.”
link to ccmixter.org
According to this guy the only difference is your state of mind.
But, I deem that to be an age old question with many different answers. Mine being the best. What do you think the difference is bread?
breadcrumbs,
Where is the source of the inertia? Are you overcoming gravity (relativistically speaking), and are you supplying your own power? Better yet, take 6’s chair and attach rockets to it. Watch it fly!
Lol, I promise I won’t do this to you tonight 6 (unless you pass out again you weeny).
6, what is the difference between flying and falling?
“A chair is “capable” of flying. You just have to throw it.”
A chair is “capable” of flying. You just have to build a plane around it.
You know, my mom always steadfastly refused to believe the monkey shakespeare situation. She’d admit that they’d eventually type out the first word, and first sentence. And even the second sentence. But someplace at around a paragraph she felt like it could never happen.
Then she took a math class a few semesters back (that’s right she’s almost 50 just now finishing college). All of a sudden the monkeys are able to type shakespeare!
And just for the record, it seems that as a general proposition, replacing the monkeys with a poshita, and infinite time with a week in today’s software environment would yield the exact same thing.
I’m still waiting for lowly to decide on which of a b c d e or f is the appropriate response. Sorry I forgot to label a b c above.
6, unfortunately for you, this is just not how the courts or the PTO sees things. If you made such a rejection, you would lose every single time on appeal.
Your hammer analogy is just bad. A hammer is not infinitely reconfigurable. Someone with half a brain can look at a hammer and figure out its various uses. One of skill in the art could not simply look at a general purpose computer and envison all, or mostly all, the uses thereof.
I get why MM hates software patents. He hates ‘crap claims,’ and there are admittedly a lot of crap software patents out there. So, rather than let 102/103 together with KSR do their job and nix these applications, he wants to just get rid of all software apps. I get it.
But why do you hate software apps so much?
“At least Bigguy? has the right idea about using the configuration to give the claims a chance of getting off the ground.”
Gee, thanks.
“The machine was always capable, they simply lacked the time or training to be able to operate the computer in that manner.”
I think you’re on to something, 6. An infinite number of monkeys, plus the general purpose computer and an infinite passage of time, and voila! The claimed invention, PLUS the collected works of Shakesepeare!
First off, talking about about programming a general purpose person is ridiculous, and you guys need to lay off it. MM’s characterization of various aspects of the analogy were never intended. And really were not required for the effect of the analogy. The original analogy involved merely the use of the hammer to strike a nail and didn’t extend to the intentions, or training of the person. I merely stuck the part about hitting a nail twice in as a little nugget of story telling. The hammer is capable of driving a nail even if it is weilded by Noise, who can’t drive a nail, or me, who can drive a nail.
However, from this discussion arises a poignant point about claims with mere funtional language attached to a general purpose computer. They are offensive to a person of ordinary skill in programming because they recognize that the computer is merely being used in a specific manner which it was always capable of being used in.
link to philip.greenspun.com
But, on the other hand, to the everyday user, the computer has now been transformed into some wonderful piece of machinery totally different than it was before, and capable of wonderful things at the touch of a button! The machine was always capable, they simply lacked the time or training to be able to operate the computer in that manner.
“A processor is not capable of doing anything but sitting there unless it’s programmed. Once it’s programmed, THEN it’s capable of doing something.”
I agree, but it is still the same processor. A hammer isn’t capable of striking a nail until it is picked up, never the less, the reference showing a hammer by itself is taken to anticipate the hammer being used to strike a nail, and also a hammer capable of striking a nail, correct?
I would love to see the hammer prosecutor arguing the way you guys do for functional software claims. But but but, the hammer isn’t capable of striking a nail until it is picked up and used by a person with an intent to drive a nail who is trained enough to be able to drive a nail and who is strong enough to drive the nail. And with respect to my dependent claim talking about long nails being driven in I also argue that the person driving the nail must be trained enough to, or inherently capable of, hitting the nail in within 1 or 2 hits lest the nail never get fully driven in, as spoken about in the specification! NONE OF THIS IS SHOWN IN THE PRIOR ART REFERENCE!!!11!!! All it shows is a simple hammer divorced from everything!!!!
In fact, let’s do this:
“The hammer would be ‘capable’ of performing the steps IF it were swung to perform the steps of the claims. Your reference does not disclose that it has been swung to perform such.”
At least Bigguy? has the right idea about using the configuration to give the claims a chance of getting off the ground.
“So 101 includes a “silly” test?”
Nice strawman, Mary. Now you have something to play with over the weekend.
Malcolm says “I have no doubt that there are complex software patent applications out there. I am less convinced about the “crap claims” part. It seems to me that the more complex the software is, the sillier it is to try to patent it, especially when you have copyright protection.”
So 101 includes a “silly” test?
Er admission that your position prevails. Sorry for my doo-doo grammar.
6,
That is no admission that your position fails. Since your reference shows a general purpose computer, and not one programmed to perform the steps of the claim, it does NOT anticipate every software claim in existence. The computer would be ‘capable’ of performing the steps IF it were programmed to perform the steps of the claims. Your reference does not disclose that it has been programmed to perform such.
Now, if your reference showed a general purpose computer programmed to perform the steps of the claims then it would of course anticipate the claim.
“A general purpose processor is not ‘capable’ of performing a task unless it is specifically programmed to.”
So then you admit that there is an instance where it is capable of performing “a task”? Specifically, the instance of having someone sit down at the computer and type some code into it. That’s pretty much the end of discussion, you admit, straight up front that my position prevails. Right?
MM,
Your general purpose person is not ‘capable’ yet because he doesn’t know how to hit a nail with a hammer, or that hitting a nail with a hammer is even something he’d like to do or that would be useful, without instructions first.
Your ‘person’ is a bad analogy really, because a person thinks for themselves. A processor does not. A processor is not capable of doing anything but sitting there unless it’s programmed. Once it’s programmed, THEN it’s capable of doing something.
“Picking up the hammer is akin to launching the program, not to actually programming the processor to be able to perform the steps included in the program.”
The analogy, I believe, was to a person with a hammer and a nail learning to pound a nail into a board with two hits. The question is: is your general purpose person “capable” of performing that task?
“Do you understand there are real, legit, complex software patent applications that aren’t “crap claims” about toolbars?”
I have no doubt that there are complex software patent applications out there. I am less convinced about the “crap claims” part. It seems to me that the more complex the software is, the sillier it is to try to patent it, especially when you have copyright protection.
“6: did you know that information whether or not it could destroyed was central to understanding black holes?”
Yes actually I do and did. It’s funny that you’re familiar with some basic works and yet fail to understand that he has fundamentally abstracted all “real” forms representing information in the universe to fit into the word “information”.
Let us put this into patent terms. Genus and species. Abstraction at its finest. Abstraction btw, is the process or result of generalization by reducing the information content of a concept or an observable phenomenon, typically in order to retain only information which is relevant for a particular purpose.
link to en.wikipedia.org
I couldn’t have put it better myself.
Now, the genus is, in all instances, an abstraction of the species covered thereby, unless the species are so few in number as to be effectively synonymous with the genus in a given context.
Since I believe you now have what an abstraction is down, we can proceed.
Let us take the example you propose above. Unsorted to sorted list. First, you have made an abstraction of a bunch of names (for instance) on a screen (or otherwise arranged into a list) and called it a list. That is the first abstraction. You have further abstracted an arrangement of lit pixels on a screen to be called “names”. That is the second (from here on out you can count). You have further abstracted electrical impulses within an LCD panel to call them an arrangement of lit pixels. You have further abstracted a control unit of an LCD panel sending some electrical signals to be called electrical impulses within an LCD panel. So on and so on down to the level of putting some 1’s and 0’s into a processor in the computer. So on and so on down to the level of putting some charge carriers through a transistor.
You have, in effect, recited nothing but a huge chain of abstractions of some very specific things occurring somewhere inside a computer. You do this in your everyday life so often you don’t even realize you’re doing it.
You red flag should have been when you typed “represented in”.
“Are you aware that how one sorts that list of numbers can mean the difference between spending millions of years waiting for a result and waiting a few seconds?
Are you aware that some of the most sophisticated sorting algorithms are so complex that there are only a few poeple in the world that can understand them?
Are you are aware that there are tools in information science to analyze whether or not a sorting algorithm is optimum? To analyze the space and time used? Are you aware that there are scientific papers written about theoretically how much energy is required to transform the information?
The fact is that information theory is as much a part of physics as gravity.”
Yes yes yes yes yes yes yes. And your point is?
The bottom line is that you made an abstraction for a specific purpose. I can take the abstraction which you made, and interpret it differently to cover things which you didn’t intend for your specific purpose. Specifically, it can cover information as an abstraction generally, rather than specifically, as used in many contexts, including the fields of science to which you refer.
“Well, yeah, his theories do have something to do with patent law. Because, information theory plays a critical role in understanding black holes. ”
Don’t you understand max? Black holes, and everything associated with understanding them, are intimately related with patent law. Lol!
“The point is that a transformation of information is a transformation in every sense of the word. ”
The actual point, which he misses, is that a transformation of an abstraction of information is not necessarily a transformation in every sense of the word in the patent field since the abstraction of the word “information” is not limited to the context which it is being used in Mr. Hawking’s work and in other scientific endeavors. The reason for this being, we have laws that provide otherwise so that words, which are inherently able to be abstracted, do not become overly so in the grant of a patent.
NWPA: “That’s right homies, one of ordinary skill in the art of patents would necessarily turn to the study of black holes to determine what information is for the purposes of patent law.”
Keep em comin NWPA!
As an aside NWPA, remind me how Hawking accounts for the information of the location of a black hole escaping a black hole? And what of the information relayed by the gravitational field of the black hole escaping the black hole? I presume we could measure the size of a black hole by the gravitational field if we could measure that. Is that not information?
A general purpose processor is not ‘capable’ of performing a task unless it is specifically programmed to. Your hammer and nail analogy is bad. Picking up the hammer is akin to launching the program, not to actually programming the processor to be able to perform the steps included in the program.
Do you understand there are real, legit, complex software patent applications that aren’t “crap claims” about toolbars?
Before you call me a software prosecutor, I’m not. I’m an EE.
“The transformation is from an unsorted list of number represented in a computer readable memory to a sort list of number in a computer readable memory.”
Abstraction abstraction abstraction. The actual transformation was some electricity moved from one part of RAM to another. The is no “unsorted list” inside a computer, I double dog dare you to open your computer that you’re typing on right now and pull me one out.
You just love to move conveniently away from what is actually occurring inside the machine to an abstraction of what is occurring inside the machine. Tsk tsk tsk, you want to play abstraction? Let’s play abstraction.
“Do you really think your SPE would let you get away with that?”
That depends, is it capable of performing the functional language? Tell me lowly, when is a structural element anticipated? When the structural element is described as being capable of functioning in a certain way, when the element is described as actually functioning in a certain way, or when the element is, in fact, capable of functioning in a certain way? Perhaps D all of the above? E, none of the above? F, functional language is never anticipated? I look forward to your answer.
I pretty much use the third option in my art for functional limitations and I don’t recall ever getting any lip about it what so ever from SPE or attorney. I do get some lip expressing the attorneys displeasure at the feature being anticipated, but they never go so far as to say that the feature is not anticipated. Unless, genuinely, the part in question simply is not capable of performing the function.
No. Still don’t see more than one sense. Sorry. Choose any word. It’s meaningless till it is clothed in a context. Scientists and lawyers use “transformation” to mean the same thing, it’s just that they are communicating in different fields of endeavour. You might just as well say that “transformation” has the sense it has to a metallurgist, and a different “sense”, when a polymer scientist uses that term.
Wait a minute. 6, are you actually telling me that you would simply reject any software claim over a reference showing a general purpose processor and merely say the processor is “capable of” performing the functional language in the claim? Do you really think your SPE would let you get away with that? Perhaps he just rubber stamps your OA’s and doesn’t check, but when that was appealed, you don’t think he’d choke you and make you reopen prosecution and do your job properly?
If you’re saying this is merely how you THINK it should be… but if you’d actually do that, wow. Just wow. I had gained a little respect for you lately, but if you’d do that, it’s all gone. 🙁
The point is rather simple. What is the answer to the following question. Whether or not transforming information (e.g. represented numbers in a computer readable memory from not being sorted to being sorted) is a transformation.
There are at least two senses of transformation that are relevant here. The legal meaning as used in Bilski which the courts get to define. And, transformation as a scientist would use in the sense of a transfomration of matter, which the court in Bilski was referring to.
Big Guy, no need to ask the question. I doubt if anybody could squeeze in more non-sequitura than we see in that wonderful example you quote.
Night, compared with Hawking I am indeed as thick as two short planks. I can’t help it, sorry, no matter how strongly you exhort me to stop being so thick. Your condescending exhortations aren’t doing either of us any good.
BTW, how many “senses” are there, of the word “transformation”? I can think of only one. It’s not as if the word in view were “handle” or “scat”, is it?
>>Bigguy said: non sequitirs
Why non sequiturs? It isn’t hard to understand the relevance. The point is that a transformation of information (e.g., represented numbers in a computer readable memory from not being sorted to being sorted) is every bit as much a transformation as what goes on in MM’s test tubes.
Don’t tell me that you are going medieval on me.
“Well, yeah, his theories do have something to do with patent law. Because, information theory plays a critical role in understanding black holes. And it is an illustration that information is every bit as much a part of physics as gravity.”
Just how many non sequitirs can you fit into one paragraph, NWPA?
>>nothing to do with patent law.
Well, yeah, his theories do have something to do with patent law. Because, information theory plays a critical role in understanding black holes. And it is an illustration that information is every bit as much a part of physics as gravity.
The point is that a transformation of information is a transformation in every sense of the word. Don’t be thick MaxDrei.
NWPA: “Stephen Hawkins” is a bloke I knew at school. So what? Did you mean Stephen Hawking? Now that’s another thing entirely. He is really smart but, then again, nothing to do with patent law. He is Professor of (something in the maths/physics line) at Cambridge University. Do I get a prize, or is there a published patent lawyer I should know, called Stephen Hawkins?
>>Okay, I read the prerequisite blogs and info, >>and as I understand it Gene and the other >>software guys position is that software is a >>written language and therefore is protected by >>copyright.
What a load of nonsense. Software is instructions for information processing. The fact that the human brain can generate this in something that appears to be using our language skills to speak with other human being is not dispositive.
The fact is that a transformation of information is a transformation in every sense of the word.
Do either of you know who Stephen Hawkins is?
>>then that is a transformation that takes time, >>space, and energy.”
>>6 said: So tell me about all that in the >>claim bucko. Until then, you’re simply telling >>me an abstraction of the transformation, which >>is not the transformation.
The transformation is from an unsorted list of number represented in a computer readable memory to a sort list of number in a computer readable memory.
There are no abstractions (whatever that word means) there. A transformation has occured that is incredibly useful. In a sorted list a number can be found in order log n time as opposed to order n time in an unsorted list.
6: did you know that information whether or not it could destroyed was central to understanding black holes?
Are you aware that how one sorts that list of numbers can mean the difference between spending millions of years waiting for a result and waiting a few seconds?
Are you aware that some of the most sophisticated sorting algorithms are so complex that there are only a few poeple in the world that can understand them?
Are you are aware that there are tools in information science to analyze whether or not a sorting algorithm is optimum? To analyze the space and time used? Are you aware that there are scientific papers written about theoretically how much energy is required to transform the information?
The fact is that information theory is as much a part of physics as gravity.
I apologize for the multiple post. The web site kept getting stuck.
AI,
I’m flattered that you want my opinion, but I pointed you in that direction not just to learn a little, but to also gather your opinion. You have a perspective that is not “lawyer-tainted” per se. Just a few more steps down the path.
What do you think of the Printed Matter Doctrine?
I don’t want to bias your understanding or explanantion of Printed Matter Doctrine with my thoughts on patentability of general sets of instructions, but I will share those thoughts with you soon.
breadcrumbs wrote: “Actual Inventor,
You asked “Why do you feel software deserves patent protection but other written artistic works do not, such as language, novels, poems, songs, etc.?”
May I point you to two items you may want to peruse? - The first is Gene Quinn’s blog called IP Watchdog. Gene has had a series of articles dealing with this question. A recent post that has comments touching on your question is here: link to ipwatchdog.com The second has to do with a concept called Printed Matter Doctrine. This touches upon key differences in intellectual property protection based upon the subject matter.
I would welcome your perspective after you peruse this area as this board has seen some colorful interplay on this concept and I wonder where your thoughts would lay.”
Okay, I read the prerequisite blogs and info, and as I understand it Gene and the other software guys position is that software is a written language and therefore is protected by copyright. The language is also a process or set of instructions and when these instructions are carried out, or executed it becomes a “patentable process.” So in effect the written element gets the copyright and the function gets the patent. I am fine with this but it still leaves my question unanswered. If software can receive both copyright and patent protection then when can’t every other set of instructions?
For example, the pop culture phenomenon “The Secret” should have copyright and patent protection as it is an instructional DVD, Movie, and book. Any one carrying out the “The Secret” instructions to manifest something should be paying the inventors a royalty. Assuming of course “ The Secret” meets 112, 102, and 103. The written script, words, get the copyright and the functional element would get the patent.
So Breadcrumbs, since you are someone that knows about software patents I would be very interested in getting your opinion on why all how to instructional processes should or should not be eligible for both copyright and patent protection.
breadcrumbs wrote: “Actual Inventor,
You asked “Why do you feel software deserves patent protection but other written artistic works do not, such as language, novels, poems, songs, etc.?”
May I point you to two items you may want to peruse? - The first is Gene Quinn’s blog called IP Watchdog. Gene has had a series of articles dealing with this question. A recent post that has comments touching on your question is here: link to ipwatchdog.com The second has to do with a concept called Printed Matter Doctrine. This touches upon key differences in intellectual property protection based upon the subject matter.
I would welcome your perspective after you peruse this area as this board has seen some colorful interplay on this concept and I wonder where your thoughts would lay.”
Okay, I read the prerequisite blogs and info, and as I understand it Gene and the other software guys position is that software is a written language and therefore is protected by copyright. The language is also a process or set of instructions and when these instructions are carried out, or executed it becomes a “patentable process.” So in effect the written element gets the copyright and the function gets the patent. I am fine with this but it still leaves my question unanswered. If software can receive both copyright and patent protection then when can’t every other set of instructions?
For example, the pop culture phenomenon “The Secret” should have copyright and patent protection as it is an instructional DVD, Movie, and book. Any one carrying out the “The Secret” instructions to manifest something should be paying the inventors a royalty. Assuming of course “ The Secret” meets 112, 102, and 103. The written script, words, get the copyright and the functional element would get the patent.
So Breadcrumbs, since you are someone that knows about software patents I would be very interested in getting your opinion on why all how to instructional processes should or should not be eligible for both copyright and patent protection.
breadcrumbs wrote: “Actual Inventor,
You asked “Why do you feel software deserves patent protection but other written artistic works do not, such as language, novels, poems, songs, etc.?”
May I point you to two items you may want to peruse? - The first is Gene Quinn’s blog called IP Watchdog. Gene has had a series of articles dealing with this question. A recent post that has comments touching on your question is here: link to ipwatchdog.com The second has to do with a concept called Printed Matter Doctrine. This touches upon key differences in intellectual property protection based upon the subject matter.
I would welcome your perspective after you peruse this area as this board has seen some colorful interplay on this concept and I wonder where your thoughts would lay.”
Okay, I read the prerequisite blogs and info, and as I understand it Gene and the other software guys position is that software is a written language and therefore is protected by copyright. The language is also a process or set of instructions and when these instructions are carried out, or executed it becomes a “patentable process.” So in effect the written element gets the copyright and the function gets the patent. I am fine with this but it still leaves my question unanswered. If software can receive both copyright and patent protection then when can’t every other set of instructions?
For example, the pop culture phenomenon “The Secret” should have copyright and patent protection as it is an instructional DVD, Movie, and book. Any one carrying out the “The Secret” instructions to manifest something should be paying the inventors a royalty. Assuming of course “ The Secret” meets 112, 102, and 103. The written script, words, get the copyright and the functional element would get the patent.
So Breadcrumbs, since you are someone that knows about software patents I would be very interested in getting your opinion on why all how to instructional processes should or should not be eligible for both copyright and patent protection, just like software.
“They’re almost never sustainable. If your goal is to make applicants go away, then you’d be much better off if you’d learn how to assemble a plausible 103. That’s free advice, so enjoy it.”
In the current instance I’m interested because all elements are shown.
However, you’re right that in the everyday world of patent prosecution if there is any difference then it is usually best to go with a 103.
“Don’t be surprised when a 102 shows up on your doorstep. :)”
I’m looking forward to it. Lord knows I’ve seen every other bit of foolishness you and your colleagues can dream up.
And why are you guys so hot for 102s, anyway? They’re almost never sustainable. If your goal is to make applicants go away, then you’d be much better off if you’d learn how to assemble a plausible 103. That’s free advice, so enjoy it.
“Of course, I use functional language to do so, which the MPEP grudgingly admits is perfectly appropriate:”
Don’t be surprised when a 102 shows up on your doorstep. 🙂
“Now, under the actual law, I ought to be able to claim “… a general purpose computer configured to A, B, and C,” but that would simply be inviting rejections from geniuses like yourself, wouldn’t it?”
That’s really the question of the hour isn’t it? The issue is of course with your “ought to be able to”. It depends on which law you’re talking about. Are we talking about 101? Sans Bilski? Are we talking about the various decisions that have crafted present functional claiming in conjunction with 102 backed by a reference? I would certainly say that you can claim it legitimately, and I can certainly cite a general purpose computer which has been configured and state that the intended use of the configuration is immaterial if the old configuration is capable of performing it. Knowing that you probably didn’t go into any detail in your spec as to what the actual configuration is, i.e. showing any actual change from the old configuration, I would go further to say that you would indeed be inviting such a rejection.
“So, you do not have to buy and load software…?”
Not if I didn’t feel like it and was slightly better with computers (aka a POSHITA).
Many people I know can’t drive a nail into a board with a hammer. When I was little, I had all kinds of trouble hitting in long nails when we roofed. They’re a real bia unless you can hit them in with 1 or 2 hits. These people are are analogous use people who can’t program a comp from scratch Noise, we can’t make the hammer function. Never the less, there are people who can, I myself can now. In the same way, there are people who could program your computer from scratch.
Regardless of all that, even if, perhaps we were to say that, well, you need at least an OS and some drivers etc. as a baseline to get anything done with the comp within a reasonable amount of time, my ref certainly has those. Perhaps my ref also shows someone at the computer pushing buttons and it is plugged in. That computer certainly is capable, ready and willing to perform your function.
“Interestingly, you are now even ignoring the part of Alappat that you previously acknowledged. ”
No, actually I’m not. My position in no way contradicts the portion you are thinking of. Even if we take it out of context as you so love to do. Programming can make a “new machine” out of a gen purpose comp, if you like to call it that, but that won’t stop the fact still being that the general purpose machine was none the less capable of performing the function in question. Will it now noisywosey?
“Be careful BigGuy, 6 makes his own law and is not constrained by the MPEP (until his boss tells him he is, and that’s on a case by case basis).”
You should totally give him a kiss for luck. He’ll need it, because you catch on fast. Except, I don’t really make my own law, I simply understand the ones we already have in a way that is a bit unorthodox, and sheds a little light of day into the shaddy mirk you’ve thrown over certain claim types.
“That is, at least in one’s own mind, where integrity and honesty is also defined as one sees fit.”
Hey now, I’m integrous and honest. lol.
“But you won’t see any of those from me. ”
I didn’t think that I would.
“then that is a transformation that takes time, space, and energy.”
So tell me about all that in the claim bucko. Until then, you’re simply telling me an abstraction of the transformation, which is not the transformation.
“Nope, that is the deficiency of the 102 rejection. It is not a matter of “circumstances” — it is a matter of how you modify the computer. It is a matter of adding something to it.”
I give up on you, you’re a newbie and obviously do not have a good grasp on what I’m telling you. I’ve explained it all in clear and uncertain terms, that’s as much as I can spare you right now.
“Now, I might claim “… a processing circuit configured to A, B, and C” (although usually not in isolation). Can you see the difference? ”
I can actually. You’re claiming a circuit, not a program. And not something “programmed to”. And not software. You can claim all the circuit arrangments or “configurations” you’d like to. I have no problem with it. And when I find the configuration then your claim is toast. Or perhaps you have a new configuration. No biggie to me.
I can’t wait for you to tell me that your programmed circuit is nothing but a box with “programmed circuit” on it in your spec. I’m hungry for invalid claims.
Noise Above Law: “Don’t you know that by never admitting defeat, one cannot be wrong?”
The great irony, of course, being that I admitted being wrong upthread, without hesitation. Have you found your “original” printed matter doctrine argument yet?
“I think that’s kind of crap.”
OK, maybe it’s overstated a little. As you say, it can be persuasive in a subsequent case, but the degree of persuasiveness depends on how close the facts are to the case that generated the dicta. If the facts are too dissimilar, then the dicta may simply be useless as the original judges didn’t have those facts in mind. This is why you can’t take away hard rules of law from dicta. (And also why judges should try to limit it – this is, in my view, the biggest problem with Bilski. I think Rader agrees.) My intended point above was simply that Mr. Stein was not only extrapolating from the decision, but that he was also extrapolating from dicta.
“I was taught that the only law that you can take away from a case is that which was necessary to reach the court’s conclusion. Everything else is chatter (dicta).”
I think that’s kind of crap. Completely ignoring dicta is real good way for a judge to get overturned on appeal. Dicta might not have the effect of stare decisis, but it is still important (especially Supreme Court and appellate court dicta). At the very minimum, it is persuasive (which is not meaningless). But maybe this is a litigation as opposed to prosecution view.
Let’s not kid ourselves, NWPA.
We all know that MM and 6 are never beaten back or beaten into a corner. They share the same invincibility of persistent ignorance. Don’t you know that by never admitting defeat, one cannot be wrong?
That is, at least in one’s own mind, where integrity and honesty is also defined as one sees fit.
Looks to me like Noise above Law, Bigguy, and Mary prosecuter are willing to take the time to beat you back 6 and MM.
So, I think either accept the characterization that you get beaten back and then re-emerge with the same arguments or stand up to Noise above Law, Big Guy, and Mary prosecuter (which is a great name.)
I know I have beaten the two of you back several times, but it takes time that I don’t have right now.
“Certain things are taken as implicitly required for operation of machines I will admit.”
translates to:
“I’m wrong, but will never admit it.”
“Analogously, my computer at home was capable of performing many computer implemented functions that have no doubt been claimed the minute I took it out of the box. All I had to do was use it. Assemble the parts, plug it in and press the buttons down a few times.”
So, you do not have to buy and load software…?
Interestingly, you are now even ignoring the part of Alappat that you previously acknowledged. Can you explain what is the difference then between a new machine and a general purpose computer as discussed in Alappat? Or perhaps, the weasel words “assemble the parts” includes assembling the software that makes the machine new and different than a general purpose computer…
Be careful BigGuy, 6 makes his own law and is not constrained by the MPEP (until his boss tells him he is, and that’s on a case by case basis).
Try to think of something as simple as sorting numbers.
If unsorted numbers are stored in a computer memory, and you want them sorted, then that is a transformation that takes time, space, and energy. A transformation as much as any transformation you can think of. And, it matters big time how you do the transfomration.
Information processing is wonderfully rich.
But, you have to realize that your brain is an information processor (computational intelligence). Many opinions read as if thought is abstract. (think iron age Stevens and iron age Moore).
Actually, in the last issue of CACM there were quotes by either two or three nobel laureates saying that what was interesting about biochemistry was understanding the information processing of the cell.
It is very conceivable that very soon (if they aren’t already) claims to information processing of cells at a functional level (looking very much like an EE claim) will be used.
“let us take a claim to a toaster functioning to darken bread”
Now who’s using strawmen? If you ever actually see a claim written as “a computer functioning to do A, B, and C,” feel free to reject it under any rationale you like. (I suggest Section 112, not 102, but whatever floats your boat.) But you won’t see any of those from me.
Now, I might claim “… a processing circuit configured to A, B, and C” (although usually not in isolation). Can you see the difference? I bet Malcolm can. (I’ll give you a hint – it’s got something to do with magnetic blips…)
Now, under the actual law, I ought to be able to claim “… a general purpose computer configured to A, B, and C,” but that would simply be inviting rejections from geniuses like yourself, wouldn’t it?
Well, you know what it comes down to is that a processor is not a blender. The software and processor is the blender. Johnny figured out how to reduce the electrical circuitry and describe the circuit in memory. And it seems that his conceptual leap is just beyond many people.
It also seems that it is simply beyond many people to understand the wonders of information processing. There is a science and engineering to information processing that is as rich as any science.
“You can claim all the blips and processor arrangments you’d like so far as I’m concerned. I’ll support you 100%.”
I appreciate that. And I frequently claim useful, novel, and non-obvious blips and processor arrangements. Of course, I use functional language to do so, which the MPEP grudgingly admits is perfectly appropriate:
“A functional limitation is an attempt to define something by what it does, rather than by what it is (e.g., as evidenced by its specific structure or specific ingredients). There is nothing inherently wrong with defining some part of an invention in functional terms. Functional language does not, in and of itself, render a claim improper.” (MPEP 2173.05(g).)
This section was obviously written by a PTO employee who got spanked by the court for a silly “all computers are identical” argument. If you actually read the cases, you’ll see that the courts are much more approving of functional language in apparatus claims than the MPEP suggests.
6 wrote “that’s the beauty of the rejection.” Nope, that is the deficiency of the 102 rejection. It is not a matter of “circumstances” — it is a matter of how you modify the computer. It is a matter of adding something to it.
“By the way, what happened to your “all CDs are identical” argument?”
I’m not sure when I would have made such an argument, as that statement is plainly false. I assume you’re referring to the sister argument to the one on display today where “all CDs function identically”. Plainly, they all function to relay information. Again, you want to play at a high level of abstraction, we can play at a high level of abstraction.
“You mean that it is “capable” only after it has been reconfigured by loading the specific software onto it.”
No, actually I don’t. I mean that it is capable. And I don’t specify when of under what circumstances. That’s the beauty of the rejection. They want to play at a high level of abstraction, let us play at a high level of abstraction. All you need for the ref to anticipate is for the struture in the prior art to be capable of being used in the same manner as recited in the claim. Certain things are taken as implicitly required for operation of machines I will admit.
For instance, let us take a claim to a toaster functioning to darken bread. That is going to require the toaster be plugged in and the button on the toaster be pushed down right? Never the less, a reference describing a toaster which is not plugged in and which neglects to mention a human hand pressing down the button on the side is capable of blackening bread the minute you take it out of the box.
Analogously, my computer at home was capable of performing many computer implemented functions that have no doubt been claimed the minute I took it out of the box. All I had to do was use it. Assemble the parts, plug it in and press the buttons down a few times.
” a piece of art showing a unprogrammed general purpose computer capable of carrying out a specifically claimed function which it can carry out as a 102.”
102? I don’t think so. You mean that it is “capable” only after it has been reconfigured by loading the specific software onto it. So, try a 103 rejection
“Um, yes. A claim to a computer comprising a number of transistors would be patentable subject matter.”
You obviously did not understand what I was saying. I am not saying that it is not patentable subject matter.
“(Or is that In re Alappatlol?) ”
Probably. Depending on which “interpretationlol” you’re referring to that has been forced out of that decision by those like yourself. Then again, based on what you say, at least you seem to recognize that there are substantial limitations to your ability to rely on such decisions and that, at best, they only suggest that your position might be tenable. That is, if the veracity of the current argument was not written plainly upon its face.
“But you’re right that the court was addressing a slightly different issue, because as far as I know, nobody, including the PTO, has been foolish enough to argue to a court that an apparatus claim directed to a computer actually configured to carry out a function was unpatentable under 102 because all computers are inherently “capable” of carrying out that function.”
First, I wouldn’t be so foolhardy to say that “all computers” are inherently capable of carrying out a certain function. It is generalizations like that which would get your rejection shot down immediately. I would however feel quite confident asserting a piece of art showing a unprogrammed general purpose computer capable of carrying out a specifically claimed function which it can carry out as a 102.
And also you don’t seem to notice they were foolish enough to argue that a product claim was, in reality, a method claim. See Alappat, and read the PTO board’s decision. If that nonsense will fly as being an argument, then certainly an explicitly true arguement will fly just as well. Never the less, I’ll probably never get a chance to reject such a claim because 1. they aren’t quite as prevalent as their cousins that recite specific hardware for performing specific functions and 2. my art is such that I’ll probably never see that sort of claim. It’s a shame, I’ll probably have to stick to Beauregards.
“The right small magnetic blips on a HD, plus a processor arranged to read those blips and interpret them, equals … a new machine!”
I never said that it wouldn’t. I did say that we’re no longer talking about the information if we’re talking about the blips. You can claim all the blips and processor arrangments you’d like so far as I’m concerned. I’ll support you 100%. I would appreciate you laying off the use of strawmen to support your position.
So does Malcolm when he runs in that cute dress
Miley Cyrus rocks
“We’re referring to small magnetic blips on a HD.”
You’re almost there, 6! The right small magnetic blips on a HD, plus a processor arranged to read those blips and interpret them, equals … a new machine! But then Malcolm knew that already, didn’t you Malcolm?
‘night.
“Imparting patentability to a computer (or an internet) by transistors, or the method of manufacturing the transistors, therein?”
Um, yes. A claim to a computer comprising a number of transistors would be patentable subject matter. If the transistors were novel and non-obvious in themselves, then the claim would also pass 102 and 103. It’s kind of disappointing that we have to go back this far back to basics.
“You’re relying on either nonexistant precedent or soundbytes from cases dealing with issues different from the current ones. Probably the later. And, even if you are correct that precedent might support you in some round about manner, a court properly presented with the issues would overwhelmingly support my position. I cannot wait.”
I think you mean “nonexistent”. And “soundbites”. And “latter”. Well yes, I’m relying on at least In re Alappat. (Or is that In re Alappatlol?) But you’re right that the court was addressing a slightly different issue, because as far as I know, nobody, including the PTO, has been foolish enough to argue to a court that an apparatus claim directed to a computer actually configured to carry out a function was unpatentable under 102 because all computers are inherently “capable” of carrying out that function. Good luck with that. I don’t think you’ll get it past your supervisor, much less to a court higher than traffic court.
By the way, what happened to your “all CDs are identical” argument? Did you finally figure out how to tell the difference between your Age of Empires disc and the Miley Cyrus CD you got for Christmas?
Nobody in their right mind would MM, simply because one cannot make a dependent claim of that nature I don’t believe.
“We’re referring to small magnetic blips on a HD.”
Indeed. Just out of curiosity, has anyone attempted to patent the pattern of the blips? Even as a dependent claim from a standard Bearegard claim?